Posts
The case is Ziparo v. CSX Transportation, Inc., issued on November 25. This case last reached the Court of Appeals in 2023, when it held that plaintiff had engaged in protected activity in objecting that the work-order falsification requests were creating an unsafe work environment by placing too much stress on the plaintiff who was therefore unable to properly perform his duties, thus further imperiling railroad safety. On remand, the district court again granted summary judgment for the defendants, concluding that plaintiff's other acts were not protected under the statute and he could not prove a causal connection between his protected activity and the termination of his employment.
The record shows that plaintiff's supervisors stood to gain financially if he falsified the safety records: they would earn higher bonuses. But railroad safety is nothing to play games with. This pressure caused plaintiff to lose focus, and after plaintiff complained to his supervisors about this, they selectively wrote him up for discipline, micromanaged his job performance, threatened to fire him and, after plaintiff reported all of this to the company's ethics hotline, they fired him after he misaligned a train switch, which could have caused a derailment, even though only 6 of the 17 employees who had previously committed similar misconduct were not fired.
Wow have a lot of legal issues here. First. the Court of Appeals (Sack, Nardini and Perez) holds that, under the Supreme Court's ruling in Murray v. UBS Securities, LLC, 601 U.S. 23 (2024), which involved the Sarbanes-Oxley Act (SOX), the comparable FRSA only requires the plaintiff to show the protected activity was merely a contributing factor to the adverse employment, unlike other civil rights statutes, which carry a less plaintiff-friendly but-for causation model. If the plaintiff makes out that prima facie case, to prevail, the employer must prove by clear and convincing evidence that it would have made the same decision even without the whistleblowing activity. Again, this contrasts with Title VII, where the employer need only articulate a neutral reason for the termination and the plaintiff must prove that reason was a pretext for retaliation. Under the clear and convincing evidence test, the employer must show "the truth of its factual contentions are highly probable." You just don't see language like this in other employment laws, owing to the importance Congress placed on the rights of railroad whistleblowers whose speech may be matters of life and death.
This analysis leads the Second Circuit to overrule the contrary Tompkins v. Metro-North Commuter Railroad Co., 983 F.3d 74 (2d Cir. 2020), decided prior to the Supreme Court's ruling in Murray which said, contrary to Tompkins, that the plaintiff need not prove retaliatory intent under SOX and, in turn, the FRSA. And, while Tompkins held that the retaliation plaintiff most prove more than a temporal connection between the protected activity and the adverse action, since Murray does not require the plaintiff to prove retaliatory animus or motive, the temporal proximity test in Tompkins is no longer good law, and the plaintiff need only show temporal proximity without the heightened burden of proof commanded by Tomkins. Still, the temporal proximity must be close enough to permit an inference of retaliation, and the Court of Appeals approvingly cites employment discrimination cases holding that up to 5 months may be enough. As the Court of Appeals sums up:
An FRSA plaintiff can therefore withstand summary judgment on causation so long as they proffer sufficient evidence—direct or circumstantial, including evidence of temporal proximity—from which a reasonable jury could infer that the plaintiff’s protected activity contributed, in any way, to the challenged adverse action.
All of this helps plaintiff win the appeal, reversing summary judgment and remanding the case for trial. Here is what the Court of Appeals did:
1. Plaintiff's formal and informal complaints were protected under the statute. So long as plaintiff reasonably believed the demands imposed on him by supervisors were creating an unsafe working environment, causing him to become stressed and distracted and unable to focus on his safety-related duties, he could not suffer retaliation for his complaints about this kind of supervisory abuse.
2. A retaliatory hostile work environment is actionable under the statute. The statute prohibits "discharging, demoting, suspending, reprimanding, or in any other way discriminating against an employee" for engaging in protected activity. That language necessarily prohibits a retaliatory hostile work environment. While Title VII imposes a high burden on plaintiffs to prove a hostile work environment ("severe or pervasive"), the Title VII retaliation cases, including Burlington Northern v. White, 548 U.S. 53 (2006), which prohibits any retaliation that would dissuade a reasonable employee from speaking out, allows plaintiffs in these cases to merely show that any form of retaliatory harassment that would dissuade the plaintiff is actionable, such as increased scrutiny, selective discipline and screaming at the plaintiff on a daily basis.
3. The jury may find that the whistleblowing was a contributing factor (even if only played a "small role") in plaintiff's discipline, including termination, due to tight temporal proximity between the two events, the supervisors' admissions that they exhibited hostility or antagonism toward him, particularly after he blew the whistle. The court writes, "had Ziparo not repeatedly made unheeded safety complaints, perhaps his protected activity would not have created escalating 'tension and animosity' that culminated in" his supervisors' threats to fire him.
4. The jury may find that CSX cannot prove its affirmative defense that it would have fired the plaintiff even without the whistleblowing. While defendant further argued it would have fired plaintiff in any event because he screwed up a track switch and might have caused a derailment, under the clear and convincing evidence framework, we don't ask what management could have done in isolation but what it would have done without the whistleblowing. Since defendant only fired 6 of the 17 employees who engaged similar misconduct, the jury may find it was "highly probable or reasonably certain" that CSX would not have fired plaintiff without the whistleblowing. "In other words, CSX usually retains employees who erred as Ziparo did."
