Over the past few years there has been an increase in litigation involving employees alleging they were terminated from employment in retaliation for exercising protected activity – i.e., reporting a work- related accident. This type of litigation has occurred under various federal statutes. This article discusses one such suit brought under the Federal Railway Safety Act (FRSA).
Section 20109(a)(4) of the FRSA, in pertinent part, prohibits railroad carriers from discharging, or otherwse discriminating against an employee if such discrimination is due, in whole or in part, to the employee’s lawful, good faith act done to notify, or atempt to notify, the railroad carrier of a work related personal injury. A prima facie showing of discrimination requires the following: (1) the employee made an injury complaint in good faith (protected activity); (2) the rail carrier knew of the complaint; (3) the employee suffered an adverse employment action; and, (4) the complaint was a “contributing factor” in the adverse action. Once that showing is made, the rail carrier can avoid liability if it can show by clear and convincing evidence that it would have taken the same action absent the exercise of the protected activity.
At issue in Armstrong v. BSNF Railway Company, et al, was a jury instruction submitted that Armstrong contended was in error as it required him to establish that BSNF had a retaliatory motive in terminating him rather than simply showing his complaint was a “contributing factor” in their decision.
The jury instruction at issue stated:
“In deciding Plaintiff’s retaliation claim, you should not concern yourselves with whether the Defendant’s actions were wise, reasonable or fair. Plaintiff has to prove that Defendant’s decision to dismiss hin was based on unlawful retaliation.
Defendant cannot be held liable under the FRSA if you conclude that Defendant terminated Plaintiff’s employment based on its honestly held belief that Plaintiff did not engage in protected activity under the FRSA in good faith.”
Plaintiff also cited a 3rd Circuit opinion in support of his argument that he need not show a retaliatory motive by the employer.
The 7th Circuit Court of Appeals rejected plaintiff’s argument and the 3rd Circuit’s analysis. The 7th Circuit agreed that a FRSA plaintiff need not show that the retaliation was the “sole” motivating factor in the adverse decision. However, the Court noted that the statutory text for the FRSA requires a showing that retaliation was “a” motivating factor. The court noted the FRSA prohibits intentional discrimination in response to an employee’s performance of a protected activity. Quoting the 8th Circuit Court of Appeals, “The essence of this intentional tort is discriminatory animus”. Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014). An employer violates the FRSA only if the adverse employment action is, at some level, “motivated” by discriminatory animus.
Important to future litigation under contributing factor statutes, the 7th Circuit noted that while “contributing factor” is a more lenient standard, the contributing factor that an employee must prove is intentional retaliation prompted bythe employee engaging in protected activity. A showing of discriminatory animus required by the FRSA necessarily includes some proof of retaliatory motive. “Contributing factor” is merely a standard of causation and it does not elimiante the need to demonstrate the existence of improper motive.
If BSNF honestly believed that Armstrong was lying about his complaint, then it necessarily follows that it did not retaliate against Armstrong for filing a good faith complaint. Thus, the 7th Circuit upheld the jury instruction and the jury’s verdit for BSNF.
However, the discussion did not end with the affirmance of the jury’s verdict. The 7th Circuit went further and awarded costs to BSNF as the prevailing employer. The FRSA’s silence on the awarding of costs to prevailing employers is insufficient to overcome the prevailing presumption that prevailing parties are entitled to costs even where as here the statute provides for costs for prevailing employees. Thus, the 7th Circuit upheld the award of costs to BSNF.
This opinion follows the 8th Circuit’s reasoning and rejects the reasoning of the 3rd Circuit with respect to evidence of retaliatory animus under statutes utilizing the “contributing factor” standard of proof. Employers can now argue a lack of retaliatory animus even when confronted with a retaliation claim brought under a “contributing factor” statute despite prior beliefs that animus was not required.
Employers are now better situated to defend these types of claims although they are still more employee friendly than are “sole factor” statutes. The awarding of costs also provides the employer with some leverage in settlement negotations.
Employers in the 7th, 8th or other circuits outside of the 3rd Circuit should review their defense strategy to pending claims and make any adjustments necessary in light of this opinion.
Read the Ruling.