Retaliation Need Only Be a "Contributing Factor," Not the Only Reason

On February 12, 2012, the U.S. Department of Labor's Administrative Review Board held in favor of the railroad employee in DeFrancesco v. Union Railroad Co. Mr. DeFrancesco alleged that his employer, Union Railroad Co., illegally retaliated against him for reporting an on-duty injury. Following the injury report, DeFrancesco's supervisors reviewed his entire "discipline and injury history to determine whether he exhibited a pattern of unsafe behavior that required corrective action." The railroad concluded DeFrancesco had failed to work safely at the time of his injury, and also that he had shown a general pattern of carelessness at work. The railroad noticed up an investigation on these charges but offered alternative handling in the form of a 15-day suspension. The employee, fearing he would be discharged if he proceeded to investigation, accepted the suspension and then filed an OSHA complaint for retaliation.

OSHA has jurisdiction over such "whistleblower" claims under the Federal Railroad Safety Act of 2007. Initially an OSHA investigator determines whether there is "probable cause" to believe retaliation for the employee's report contributed to or played a role in the railroad's adverse action against the employee. The case then moves to a formal hearing before a Department of Labor Administrative Law Judge, followed by appeal to the Department of Labor's Administrative Review Board. Here, the Adminstrative Law Judge found that the railroad knew DeFrancesco had engaged in protected activity, but also found that DeFrancesco had failed to prove that the railroad's decision makers had a motive to retaliate against him.

The Adminstrative Review Board disagreed, and ruled that DeFrancesco only had to prove that his protected activity was a "contributing factor" in his suspension. The Board noted that it was the injury report that set the following events in motion. If DeFrancesco had not reported his injury, the railroad would not have reviewed his personnel file for other incidents, and then would have had no reason to notice him up for investigation for supposedly being a generally careless or accident-prone employee. Because the suspension resulted "in whole or in part" from the injury report, the railroad violated the whistleblower statute. The Administrative Review Board remanded the case to the Administrative Law Judge for further findings on whether the railroad could prove, by "clear and convincing evidence," that it would have taken the same disciplinary action against DeFrancesco if he had not reported his injury as the whisteblower statute permitted him to do.

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