In a previous blog post, we wrote about the Department of Labor’s Administrative Review Board’s (“Board”) unusual oral argument in Powers v. Union Pacific. That argument was on January 14, 2015. On March 20, 2015, the Board ruled in favor of Robert Powers in a 3-2 decision.
Under the 2009 amendments to the Federal Rail Safety Act of 1982 (“FRSA”), whistleblowers must first show by a preponderance of the evidence that their protected activities were a “contributing factor” to the action taken against them. However, even when a whistleblower can make this showing, the employer can still defeat the whistleblower’s claim if it shows by “clear and convincing” evidence that it would have taken the same action even if the whistleblower had engaged in no protected activity. Congress has used this modern two-tiered standard for proving causation in the Whistleblower Protection Act (for federal employees) and in more than a dozen private sector whistleblower laws enacted in the last two decades.
The benefit of this standard to whistleblowers is clear: for tier 1 (the contributing factor tier), the employee need only show that her disclosures contributed to the employer’s decision to take the action; but in tier 2 (the “even if” tier), the employer must meet the much higher burden of proving that it would have taken the same action even in the absence of the disclosures. Not surprisingly, employers have been trying to find a creative way out of this standard of proof.
In Fordham, the employer sought to merge the two-tiered standard with the familiar McDonnell Douglas paradigm used in discrimination cases where there is no direct evidence: the employee creates an inference of discrimination from circumstantial evidence, and the employer can negate that inference merely by articulating a “legitimate non-discriminatory reason” for its action. The employer doesn’t have to prove anything; it need only state an alternative explanation. To prevail, the employee must then prove by preponderant evidence that the employer’s explanation isn’t credible. Note that at all times, the burden of proof rests with the employee.
In Fordham, the Board rejected the employer’s efforts, and it reaffirmed that reasoning in Powers. Briefly, the Board reiterated that the two-stage analysis mandated by the FRSA required the strict separation of complainant’s evidence and employer’s evidence when determining causation. In essence, the Board cautioned that an employer will not be allowed to water down its “clear and convincing” burden of proof by arguing that it had a legitimate reason the employee’s contributing factor stage. In practice, this means that the employer’s evidence that “it would have taken the same personnel action regardless” will not be heard until the employee has met his or her initial burden. This analysis has widespread implications. The FRSA amendment’s burdens of proof were adopted from the proof provisions of the Whistleblower Protection Act of 1989 (“WPA”). In fact, much of the Board’s analysis relied upon the logic and legislative history behind the WPA, and more than a dozen federal laws use this modern causation standard.
Further, the Board explained that the “contributing factor” standard means just what the words says it means – that the protected activity contributed to the adverse action. Other reasons may have played a role in the employer’s ultimate decision, and perhaps even a larger role than the complainant’s whistleblowing. Nonetheless, the employer must answer for its actions when unlawful reprisal contributed in any way to its decision. Congress has always intended the contributory factor to be an easy burden for plaintiffs – an intent that is rooted in frustration with the difficulties whistleblowers continue to have with employers and adjudicators. In this case, the Board was mindful of the “history of retaliation against injured railway employees and the under-reporting of injuries by the nation’s railroad companies.”
Going forward, private sector whistleblowers should have an easier time proving their cases to the Department of Labor. Employers will now face the difficult burden that Congress intended – whenever unlawful retaliation contributed in any way to an adverse action against a whistleblower, the employer can prevail only if it can prove, by clear and convincing evidence, that it would have taken the same action notwithstanding the whistleblower’s protected activity.