As an employee of CSX Transportation, Inc., “Mark” reported various unsafe workplace conditions. He filed three safety reports in 2010 and additional reports in 2011, including safety-related incidents at Wheeling & Lake Erie Railroad (W&LE) and Demmler Yard.
Sixteen days after the W&LE incident occurred and 1 day after the Demmler Yard incident, Mark was suspended after being charged by his employer with violation of workplace jewelry guidelines and making a false statement.
Mark, however, attributed the suspension to retaliation for having complained of unsafe working conditions. He filed suit, alleging that the company had retaliated against him for engaging in protected activity under the Federal Railroad Safety Act (FRSA). After the district court sided with CSX, Mark appealed to the U.S. Court of Appeals for the 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia. He argued that the district court had used the wrong legal standard, mistakenly concluded that the decision makers involved were unaware of his protected activities, and should not have required him to show proof of disparate treatment.
What the Court Said
The appeals court vacated the decision and sent the case back to the lower court. The court said Mark established all four elements required to establish a case of retaliation under the FRSA.
First, he “undoubtedly engaged in protected activities” when he filed the safety reports in 2010 and 2011. His employer argued that Mark’s reports about the W&LE and Demmler Yard incidents were not protected activities. However, citing another case, the appeals court noted that “the FRSA does not require only a violation of a federal law, rule, or regulation; it also protects employees who ‘report, in good faith, a hazardous safety or security condition.’”
Second, the court concluded that Mark “adequately demonstrated that the relevant decision-makers were aware of his protected activities.” One terminal trainmaster decided to charge Mark with violating the jewelry policy and making a false statement, while another trainmaster conducted the disciplinary hearing that led up to the suspension, and a division manager ultimately decided that Mark had, in fact, made a false statement.
Even if those decision makers were not directly aware that Mark had filed safety complaints, the court noted that another trainmaster, “Mason,” did have direct knowledge of the protected activities and that he “had contact with all three decision-makers.”
Citing another case, the appeals court said Mark did not have to “‘prove that the decision-maker responsible for an adverse action knew of the protected activity if it can be established that those advising the decision-maker knew, regardless of their motives.’”
In this case, Mark had reported two of the 2010 safety issues to Mason; Mark and Mason had discussed another safety incident; and Mason had advised all three decision makers on the false statement allegation. Plus, the court said that Mason’s testimony at a disciplinary hearing “proved to be critical” to one trainmaster’s recommendation that Mark be found guilty of the charge and the division manager’s decision that he was guilty.
Additionally, the court said there was evidence that Mason’s testimony “was the result of retaliatory animus” because he and other local managers were not happy with Mark’s “safety push and reports” and that Mason allegedly advised other employees to avoid Mark and union representatives. The court also said that Mason’s testimony could have been influenced by his immediate supervisor, who had “direct knowledge” of the protected activities, “held clear animosity toward” Mark, and considered him to be a liar.
Third, the court said Mark “suffered an unfavorable personnel action” when he was suspended.
Finally, the court said it is possible that Mark’s safety complaints contributed to the decision to suspend him—both because the discipline he received for violating the jewelry policy was greater than the discipline imposed on other violators and because allegations were made against him just 16 days after one safety incident and only 1 day after another incident.
Alternately, CSX argued that the lower court’s decision should be affirmed because CSX had shown that it would have suspended Mark even if he had not complained about safety issues. The appeals court disagreed and declined to affirm.
Lowery v. CSX Transportation, Inc. (No. 16-1634) (U.S. Court of Appeals, 4th Cir., 5/26/17)
Even if your company is not covered by the FRSA, as the employer in this case is, it is important to train your supervisors on the antiretaliatory provisions of laws that do apply to your company. OSHA enforces 22 whistleblower laws. Make sure your supervisors are familiar with the laws that are relevant to your organization.