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Federal Judge in Tennessee Reiterates “Permissive Threshold” of Contributing Factor Standard in Whistleblower Retaliation Cases

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In a recent Federal Railroad Safety Act (FRSA) whistleblower retaliation claim, the United States District Court for the Eastern District of Tennessee reiterated the “permissive threshold” standard of the “contributing factor” test under the FRSA. This case demonstrates the importance of this standard in allowing whistleblowers to pursue retaliation claims, and ultimately to protect public safety.

Under the FRSA, an employee claiming that his employer has subjected him to unlawful retaliation for whistleblowing must show that: 1) he engaged in protected activity; 2) his employer had knowledge of his protected activity; 3) that he suffered an unfavorable personnel action; and 4) that his protected activity was a contributing factor in the unfavorable personnel action. After the employee makes out a prima facie case that his protected activity was a contributing factor, the employer must show that it would have taken the same adverse personnel action absent the employee’s protected activity.

In Rader v. Norfolk Southern Railway, Case No. 1:13-cv-298, 2016 WL 1241846 (E.D. Tenn. Feb. 10, 2016), Coulbourne Rader made the following allegations:  Rader tripped over a cable while at work and injured his knee. After reporting the injury to his supervisor, Rader sought medical treatment and learned that he had torn cartilage in his knee, and subsequently underwent surgery to repair it. The company’s medical team cleared Rader to return to work, but Rader’s supervisor refused to allow him to work and told Rader to leave the company’s property or he would be arrested. Rader’s return to work was then delayed for more than a month while his supervisors waited for “clarification” from the medical team, despite Rader having already been cleared to return. Rader alleged that the delay in allowing his return to work was retaliation for his having reported an injury on the job.

In denying Norfolk Southern’s motion for summary judgment, Judge Travis McDonough noted the “permissive threshold” of the contributing factor test. Judge McDonough found that under this test, a plaintiff “need not show that engaging in protected activity was the ‘sole or even predominant cause’ of the adverse employment action.” Instead, McDonough held that a plaintiff needs only show that the protected activity contributed in some way to the adverse employment action. Judge McDonough found that, given the facts put forward by Rader, Rader satisfied this low threshold. Here, “competing evidence” put forward by both parties was enough to avoid summary judgment and send the case to a jury.

The case is important for employees because it demonstrates the lesser burden placed on a whistleblower plaintiff at the pleading stage. The holding also recognizes that in employment cases, adverse actions can often be traced to more than one motive on the part of management or the employer. And further, the case’s holding shows that the “permissive standard” of the contributing factor test, as articulated by the court, promotes both the legal protection of whistleblowers, as well as the exposure of underlying public safety concerns or illegal behavior that whistleblowers often uncover.

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