The U.S. Department of Labor’s Administrative Review Board (ARB) issued a 3-2 decision in favor of a whistleblower, Robert Powers, in Powers v. Union Pacific Railroad Company, ARB Case No. 13-034, in a decision that was a resounding victory for employees asserting whistleblower claims. In Powers the ARB held that the correct standard of proof was a contributing factor causation standard for retaliation claims brought under various whistleblower laws enforced by the U.S. Department of Labor. Prior to the decision in Powers, a whistleblower was required to show that his protected activity was the “but for” cause of his termination or other adverse employment action. After Powers an employee need only prove that the protected activity was a “contributing factor” leading to an adverse employment action. This distinction is significant for many reasons, including, perhaps most importantly, an employee's ability to get to a hearing on the merits of his claims. A "contributing factor" standard only requires a whistleblower to show that his protected activity was one of perhaps many factors that led to his termination or other adverse employment action. In contrast, a "but for" standard requires a showing that, but for the protected activity, the employee would not have been terminated.
Powers involved a whistleblower claim under the Federal Rail Safety Act (FRSA), 49 U.S.C.A. § 20109, as amended. Powers filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging that his employer, Union Pacific Railroad Company (Union Pacific), violated FRSA by terminating his employment because he reported a work-related injury. After its investigation, OSHA issued a finding of reasonable cause for a violation. OSHA ordered relief that included Powers began working at Union Pacific in December, 1996. In May of 2007 he was operating a rail saw while working and he hurt his hand. He reported the injury to his supervisor, Leroy Sherrah.
His supervisor suggested that Powers take care of his hand over the weekend, and that they would fill out an injury report if it still hurt on Monday. The following Monday Powers reported to his supervisor that he nursed his hand throughout the weekend, but still felt pain. Powers filled out an accident report.
Powers then sought treatment and an x-ray on his hand. He was diagnosed with a contusion and tenosynovitis, and immobilized with a cast. He was placed on work restrictions that included no lifting over 5 to 10 pounds, and no heavy pulling, tugging or lifting. Union Pacific accommodated Powers' medical restrictions and put him on light duty that required him to prepare a truck in the morning, drive during the day, and occasionally lift objects under ten pounds. Further monthly medical examinations and work restrictions followed.
In October 2007, Powers was "force recalled" to a higher paying system welding job. The manager for the job accommodated Powers' medical restrictions, but after two weeks informed Powers that he could no longer accommodate the restrictions. After his dismissal from the welding job, Powers took an unpaid medical leave of absence and filed for disability benefits with Union Pacific's private disability insurer and the Railroad Retirement Board. When Powers returned with work restrictions, he was placed under surveillance by Union Pacific, and found to have been dishonest about his activities at home and not abiding by his work restrictions. As such, Union Pacific terminated Powers' employment following investigations and hearings. Powers grieved his termination to the Public Law Board, and obtained a reversal of his termination. The decision was appealed, and the ALJ reversed, finding in Union Pacific's favor. The ALJ held that Powers did not show his protected activity was a contributing factor in the discharge because he had no direct evidence of retaliation and that his circumstantial evidence was insufficient.
The ARB noted that under FRSA a railroad carrier "may not discharge ... or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee's lawful, good faith act" involving one of various statutorily protected activities. 49 U.S.C.A. § 20109(a); 29 C.F.R. § 1982.102(b). The protected activities include "notify[ing], or attempt[ing] to notify, the railroad carrier ... of a work-related personal injury or work-related illness of an employee." 49 U.S.C.A. § 20109(a)(4); see also 29 C.F.R. § 1982.102(b)(l)(iv). FRSA further provides: "A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for . . . following orders or a treatment plan of a treating physician." 49 U.S.C.A. § 20109(c). For purposes of subsection (c), "[t]he term 'discipline' means to bring charges against a person in a disciplinary proceeding, suspend, terminate, place on probation, or make note of reprimand on an employee's record." Id.
Relying on the standards of proof for AIR21 claims, the ARB held that FRSA incorporated AIR 21's "two-part burden-shifting test." Under that test, a complainant must prove, by a preponderance of evidence, three specific elements: (1) that complainant engaged in a protected activity, as statutorily defined; (2) that he suffered an unfavorable personnel action; and (3) that the protected activity was a contributing factor in the unfavorable personnel action. Once the complainant makes that showing, the burden shifts to the employer to demonstrate by "clear and convincing evidence" that the employer would have taken the same unfavorable personnel action in the absence of the complainant's protected activity. Under the law, a contributing factor includes any factor which tends to affect in any way the outcome of the decision.
In Powers, the ARB held that in determining whether a whistleblower has submitted sufficient evidence to prove contributing factor causation, legitimate, non-retaliatory reasons for employer action (which must be proven by clear and convincing evidence) may not be weighed against a complainant's showing of contribution (which must be proven by a preponderance of the evidence). Moreover, where the evidence is intertwined, the employer bears the risk that legitimate and non-legitimate reasons may not be separated. While anALJ may consider an employer's evidence challenging whether the whistleblower's actions were protected or whether the employer's action constituted an adverse action, as well the credibility of the whistleblower's causation evidence, it may not venture into legitimate, non-discriminatory reasons in challenging a prima facie case.
The ARB further held that a whistleblower need not demonstrate an employer's retaliatory motive, and also has no obligation to disprove evidence of a subjective non-retaliatory motive in the context of advancing evidence supporting a showing of contributing factor" as part of a prima facie case. Accordingly, the ARB found under the facts of the case that the ALJ committed error when it ruled Powers failed to show his termination was a contributing factor because the ruling was "based upon the subjective testimony of Company managers regarding their alleged legitimate business reasons for Powers' termination-evidence that is of highly questionable relevance to contribution." In relying on that subjective testimony by Company managers to rebut Powers' evidence of contribution, the ARB found the ALJ improperly applied the preponderance of evidence standard to evidence of non-retaliatory motive. Accordingly, the ARB remanded the case to the ALJ to determine whether Union Pacific can demonstrate, by clear and convincing evidence, that it would have discharged Powers in the absence of his protected activity.
For additional information regarding federal and state whistleblower laws, or for additional information about our employment and labor law services, please contact Stavros Law at (801) 758-7604 or visit our website, www.utahtriallawyers.net.
