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Whistleblower Not Obligated to Produce Evidence of Retaliatory Termination

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On March 20, 2015, the Department of Labor Administrative Review Board (ARB) reversed and remanded a decision by the DOL’s Office of Administrative Law Judges (OALJ) that held a railroad employee had not proved that his report of a workplace injury was a contributing factor to management’s decision to terminate his employment.

Robert Powers reported to his employer, Union Pacific Railroad Company, that he injured his hand while operating a rail saw at work in May 2007. Over slightly more than a year, Powers saw several doctors who prescribed various treatments. His doctors also imposed a series of work restrictions, including limits on lifting and repetitive motions.

Union Pacific became suspicious about Powers’ reported injuries and resultant work restrictions. The company hired a private investigator who filmed Powers performing tasks around his property, including using a sledgehammer and carrying boxes of ammunition. After an internal administrative procedure that determined that Powers had violated the company’s dishonesty policy and had failed to stay within his medical restrictions, the company terminated Powers’ employment.

Powers sued under the Federal Railroad Safety Act of 1982 (FRSA). The FRSA prohibits a railroad company from discharging or discriminating against an employee in retaliation for statutorily protected activities. The FRSA uses the same two-part burden shifting framework as the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21). Under AIR 21, a plaintiff must make a prima facie showing that he engaged in protected activity, that his employer took an adverse action against him, and that the protected activity was a contributing factor to the employer’s decision to take the adverse action. A contributing factor is one that tends to affect in any way the outcome of the decision.

The OALJ held an evidentiary hearing on Powers’ complaint and issued a decision and order denying his claim on January 15, 2013. Although the ALJ found that Powers had engaged in protected activity, he ruled that Powers failed to show that his protected activity was a contributing factor in his discharge. The ALJ focused on Powers’ failure to show retaliatory motive and determined that Powers’ managers were “reasonable” in thinking that Powers had exceeded his medical restrictions.

Under the AIR 21 framework, once a complainant has shown, by preponderance of the evidence, that his protected activity was a contributing factor to the retaliation taken against him, the respondent employer has the opportunity to show, by clear and convincing evidence, that it would have taken the same action absent the protected activity. In Fordham v. Fannie Mae, ARB Case No. 12-061, ALJ Case No. 2010-SOX-051, 2014 WL5511070 (ARB Oct. 9, 2014), the ARB ruled that an employer cannot rebut a complainant’s showing that his protected activity was a contributing factor by introducing evidence of other factors contributing to its decision. The ARB reasoned that, because the two stages are governed by different evidentiary burdens, it is improper for respondents to raise affirmative defense evidence to rebut evidence supporting the complainant’s prima facie case.

In Powers v. Union Pacific, ARB Case No. 13-034, ALJ Case No. 2010-FRS-030 (ARB Mar. 20, 2015), the ARB, sitting en banc, noted that the AIR 21 standard was designed to be more plaintiff-friendly than the three-part McDonnell Douglas burden shifting framework governing claims under Title VII of the Civil Rights Act of 1964. This framework requires plaintiffs to make a prima facie case by a preponderance of the evidence. The burden then shifts to the employer to present a legitimate reason for its action. Finally, the employee has to show that the employer’s stated legitimate reason is pretext.

Mt. Healthy v. Doyle, 429 U.S. 274 (1977) established that in a “mixed motive” case, if the complainant proves by a preponderance of the evidence that the protected activity was a motivating factor in the employer’s action, the employer has the burden of proving by a preponderance of the evidence that it would have taken the same action in the absence of the protected activity.

The AIR 21/FRSA standard was designed to be friendlier to complainants. The respondent has to show by clear and convincing evidence that it would have made the same decision absent the protected conduct. In other words, the employer has to show that the protected activity in no way contributed to the decision to take the retaliatory action.

In Powers, the ARB noted that under the Fordham standard, the plaintiff in a whistleblower case of this kind is under no obligation to produce evidence of retaliatory motive or pretext in order to meet the contributing factor standard and evidence of a lack of retaliatory motive may not be used to rebut the complainant’s prima facie showing. The Board ruled that Powers had shown that his report was a contributing factor in Union Pacific’s decision to terminate his employment and reversed and remanded the case to the ALJ for determination as to whether the railroad had met its burden by clear and convincing evidence.

This decision confirms that the ARB will apply a low burden on plaintiffs and a high burden on defendants in similar retaliation cases.

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