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Federal District Court in New York Holds that Retaliation under FRSA is Governed by AIR 21’s Burden-shifting Framework

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The U.S. District Court for the Northern District of New York recently denied summary judgment in a suit filed by Robin Young against his former employer, CSX Transportation. Young alleged that CSX violated the Federal Rail Safety Act’s anti-retaliation provisions when it fired him after it was informed that he had filed a complaint with the Occupational Safety and Health Administration (OSHA). Young’s complaint to OSHA alleged that CSX told him to “refrain from providing extensive testimony about related safety issues” during a formal hearing with the Federal Railroad Administration; and then fired him because he refused to comply with this order.

In 2007, Congress amended the Federal Rail Safety Act (FRSA) to include an anti-retaliation provision and a federal cause of action. Historically, any complaints by rail employees were subject to mandatory dispute resolution, but the FRSA amendment eliminated mandatory arbitration. Now, while an employee must initially file an administrative complaint with OSHA, the employee may also bring an action in federal court.

The district court, in denying CSX’s motion for summary judgment, held that claims brought under the expanded protections of the FRSA are subject to the same two-part burden-shifting test applicable to whistleblower cases brought pursuant to Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21). This burden-shifting framework requires an employee to first show by a preponderance of the evidence that: (1) he engaged in protected activity; (2) the employer knew of the protected activity; (3) he suffered an adverse employment action; and (4) the protected activity was a contributing factor in the decision. After these factors are established, the burden shifts to the employer to show “by clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. The district court emphasized that the contributing factor standard under FRSA is lower than that of Title VII, creating an easier burden for plaintiffs to meet.

The FRSA amendment, and this decision by the U.S. District Court for the Northern District of New York, affords employees greater protection against retaliation for whistleblowing.

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