An employee of BNSF Railway Company (BNSF) sued his employer to challenge his termination under the anti-retaliation provision of the Federal Railroad Safety Act (FRSA).
The employee claimed that he was fired for performing an air-brake safety test. The district court noted that BNSF had conceded that the employee’s refusal to stop performing the air-brake test contributed to its decision to discharge him. The court nonetheless concluded that BNSF was entitled to an affirmative defense by showing that the air-brake test “contributed very little” to BNSF’s decision. The employee appealed.
The U.S. Court of Appeals for the Ninth Circuit concluded that the district court failed to follow the text of the FRSA, which prohibits the discriminatory discharge of an employee due even “in part” to the employee’s refusal to violate, or assist in violating, a railroad safety law, rule, or regulation. The Ninth Circuit also concluded that the district court’s decision was inconsistent with relevant case law.
In the FRSA, the final stage of burden-shifting framework allows an employer to defeat a claim for unlawful retaliation if the employer proves, by clear and convincing evidence, that it would have taken the same unfavorable personnel action absent the protected activity.
The Ninth Circuit found that the proper inquiry under the FRSA is not whether the protected activity “contributed very little” to the firing; the proper inquiry is whether BNSF would have fired the employee regardless of whether he had conducted an airbrake test.
The Ninth Circuit said that the clear and convincing standard requires the employer to prove what it “would have done,” not merely what it could have done. The Ninth Circuit further explained that meeting this standard is a “steep burden,” particularly when the employer concedes that the protected activity contributed to the decision to terminate the employee.
The Ninth Circuit vacated and remanded the case to the district court.
Parker v. BNSF Railway Company, 2024 US App Lexis 20049 (9th Cir. 2024).
Note: The FRSA does not apply to public employers, but California Labor Code section 1102.5 has a similar “clear and convincing” standard for whistleblower retaliation cases. When deciding whether it is lawful to terminate an employee who committed misconduct, but who also participated in protected activity, public employers should assess whether they have clear evidence not merely that they could have fired the employee absent the employee’s protected activity, but rather that they would have fired the employee.