No retaliation in railroad/workplace injury case

The plaintiff alleges that the Long Island Railroad retaliated against her for reporting a workplace injury by classifying the injury as non-work-related, a determination that cost her benefits. The Court of Appeals rules that plaintiff cannot win her case, reasoning that the adverse action took place too long after the injury. But there is a twist to this case, as demonstrated below.

The case is Sirios v. Long Island R.R. Co., a summary order issued on January 14. Plaintiff suffered the injury in July 16, 2012 while cleaning an office in the course of her duties. From February 2013 through November 2016, plaintiff and the railroad had a tug-of-war over whether her injuries were job-related. The LIRR kept changing its mind on this issue. The company reclassified her injury as non-work-related for the third time in November 2016. Plaintiff claims this final act was retaliatory.

This case is brought under the Federal Railroad Safety Act, which has an anti-retaliation provision similar to Title VII. The Second Circuit has yet to settle upon a legal standard guiding these cases, though it notes that other anti-retaliation statutes apply the Title VII standard as set forth in Burlington Northern v. White, 548 U.S. 53 (2006), which holds that any employer response to the protected activity that would deter a reasonable employee from speaking out again constitutes unlawful retaliation.

The Court of Appeals does not have to resolve the retaliation standard in this case because it rules that plaintiff cannot win for other reasons: the November 2013 adverse decision was more than four years after plaintiff first reported her injury. That's too long under the civil rights laws; courts usually will not extend the inference beyond eight months. What strikes me about this case is that the LIRR first reclassified plaintiff's injury in 2013, which would be close in time to the protected activity. So wouldn't plaintiff then have a retaliation case? No, says the Second Circuit (Chin, Carney and Sannes [D.J.]), because plaintiff "does not contend that these reclassifications were adverse actions," though they do constitute background evidence under Mercier v. Dept. of Labor, 850 F.3d 382, 388-89 (8th Cir. 2017). This is a summary order, so the Court does not delve too much into this issue, but I am sure plaintiff argued that since the multiple reclassifications were cut from the same cloth, the final reclassification qualified as a retaliatory act since it furthered the allegedly unfair reclassification practice that LIRR was implementing against her. If plaintiff argued that point, the Court rejected it, and the case is dismissed for good.