In Dakota, Minnesota and Eastern Railroad Corp. v. the Department of Labor, No. 18-2888 (8th Cir. Jan. 30, 2020), a case under the Federal Railroad Safety Act (FRSA), the Eighth Circuit reasserted that claimants must prove intentional discrimination in whistleblower retaliation cases subject to the AIR21 regulations.

Background on FRSA

The FRSA prohibits rail carriers from retaliating against employees for engaging in protected activities, including reporting injuries. According to the Eighth Circuit, the claimant must prove that the protected activity was a contributing factor to an unfavorable personnel action. In Dakota, Minnesota and Eastern, the court reasserted its holding in Kuduk v. BNSF Railway Co., 768 F.3d 786, 791 (8th Cir. 2014) that “the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.”

The FRSA is one of a number of whistleblower statutes administered by the Occupational Safety and Health Administration (OSHA) and governed by the regulations under the Wendell F. Ford Aviation Investment and Reform Act (AIR21), which protects employees in the aviation industry. The AIR21 regulations state that in order to establish a whistleblower case, an employee must show: (1) the employee engaged in a protected activity; (2) the company knew or suspected, actually or constructively, that the employee engaged in the protected activity; (3) the employee experienced an adverse action; and (4) the circumstances raised an inference that the protected activity was a contributing factor to the adverse action. If the employee can establish a prima facie case, the burden shifts to the employer to show that it would have taken the same action absent the protected activity.

The AIR21 regulations also apply to the Sarbanes-Oxley Act (SOX, protecting employees in publicly held companies), the National Transit Systems Security Act (NTSSA, protecting employees who work in public transportation), the Surface Transportation Assistance Act (STAA, protecting trucking employees) and a number of other statutes. Thus, although the FRSA is unique to railroad employees, the analysis may apply in similar cases in a variety of other industries. Dakota, Minnesota and Eastern is significant to these whistleblower cases because of the Eighth Circuit’s insistence that the contributing factor element requires intent.

Dakota, Minnesota & Eastern Railroad Corp. v. DOL

In Dakota, Minnesota & Eastern, two railroad workers had an on-the-job altercation, during which one of the workers was hit with a lantern, causing a bruise. He did not report the altercation before leaving work. Several hours after the end of his shift, the employee called his supervisor, stating that he had been assaulted and no longer wanted to work with the other employee. The supervisor told the employee he would need to make an official report. The employee wanted time to think about making the report, but called the supervisor back a few hours later to make a formal complaint. He later discovered a bruise on his chest where the lantern hit him and added that injury to his complaint.

Pursuant to an applicable collective bargaining agreement, the railroad conducted an investigation into whether the two employees had been involved in a physical altercation and failed to promptly report that incident. As a result of the investigation, the railroad disciplined both employees for both infractions.

The injured employee filed an FRSA retaliation claim with OSHA and pursued his charge through a hearing before a Department of Labor administrative law judge (ALJ). Before the ALJ, the employee argued that because the railroad learned about the incident only because he reported the attack, it followed that had he not reported the incident, the railroad would not have known about it and that therefore the report was a contributing factor to the adverse job action. The ALJ held in favor of the employee, and the Administrative Review Board (ARB) affirmed the ALJ’s decision, finding it impossible to separate the cause of the employee’s discipline – late filing of the injury report – from the protected activity of filing the injury report.

Eighth Circuit Decision

The Eighth Circuit disagreed with the ARB, determining that the employee failed to show that his report was a contributing factor to the termination of his employment. The Eighth Circuit reaffirmed that the “essence” of an FRSA case is “discriminatory animus” and that the employee must prove intentional animus to establish the contributing factor element of the prima facie case. The Eighth Circuit therefore remanded the case to the ARB with instructions to apply the correct legal standard to the existing record.

This decision does not break new ground, but it is a reminder that, at least in the Eighth Circuit, claimants bear the burden of proving intentional discrimination. Claimants in whistleblower cases subject to the AIR21 regulations cannot inoculate themselves from discipline for rule violations by filing an injury report or otherwise engaging in protected conduct. Employers should carefully consider whether the employee has actually established that the protected conduct is a motivating factor when defending against whistleblower claims.

Employers should be careful, however, to document discipline decisions carefully to separate such decisions as much as possible from protected conduct. Such documentation should hew closely to the actual reason for the discipline, such as the rule violation. An employer’s ability to identify similarly situated individuals who have not engaged in protected conduct is also helpful.

Finally, a circuit split exists on the question of the meaning of the contributing factor element of a FRSA case, with the Third Circuit, in Araujo v. New Jersey Transit Authority, 708 F.3d 152 (3d Cir. 2013), holding that the complainant need not demonstrate the existence of a retaliatory motive in establishing that element. The ARB has followed Araujo, even, as in the instant case, when sitting in the Eighth Circuit. The Eighth Circuit plainly is not backing down from its position, and other courts may be convinced to follow suit.