Eighth Circuit: Intent Matters in Whistleblower Retaliation Claims under FRSA


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January 30, 2020


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The Federal Railroad Safety Act (FSRA) prohibits rail carriers from retaliating against employees who engage in protected activities.  In Dakota, Minnesota and Eastern Railroad Corp. v. the Department of Labor, the Eighth Circuit stated that claimants must show intention to discriminate in a whistleblower retaliation case subject to AIR21 regulations.  Although this is not novel case, it is consistent with the view that claimants must show the protected activity was a contributing factor to an adverse employment action.

In Dakota, two railroad workers had an altercation in the workplace, during which one worker was hit by a lantern.  The individual did not report the altercation until several hours after the end of his shift, at which point he called his supervisor to advise that he had been assaulted and did not want to work with the other employee.  The supervisor instructed him to make an official report.  Upon investigation, the rail carrier determined that the two workers had been involved in the altercation and failed to promptly report the incident, disciplining both employees for both infractions. The injured worker filed a retaliation claim, alleging that he would not have been disciplined if he had not filed a formal complaint as prompted by his supervisor, because the railroad would not have learned of the altercation.

The Eighth Circuit stated that the employee failed to demonstrate that his report was contributing factor to the adverse employment action.  Under the FSRA, the complainant must show there was an intentional discriminatory animus contributing to the adverse employment action.  In Dakota, the workers were disciplined for failing to following policy (failing to promptly report workplace injury). Engaging in protected activity (such as filing the injury report) does not protect an employee from discipline for rule violations.

Action Items

  1. Ensure that disciplinary measures are based on employer policy, rather than retaliation for making a claim. Best practice is to review with legal counsel before taking action.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

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