Court clarifies retaliation standards for Federal Railroad Safety Act cases

A relatively obscure federal statute protects railroad workers from retaliation for certain protected activity. The statute is the Federal Railroad Safety Act. In this case, the Court of Appeals clarifies how the Act applies in practice, issuing this ruling a full year after oral argument.

The case is Tompkins v. Metro-North Commuter Railroad, issued on December 17. The Act says the railroad cannot retaliate against employees "for refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties." Plaintiff was disciplined because he refused to walk to a wheel shop at his work location, claiming it was too icy and dangerous, as evidenced by other workers slipping on their way to the wheel shop. 

To win a case like this, the plaintiff has to show the hazardous condition presented an "imminent danger of death or serious injury" and "the urgency of the situation did not allow sufficient time to eliminate the danger without such refusal." The Second Circuit (Walker, Sullivan and Nathan [D.J.]) says for the first time in this Circuit that the plaintiff must objectively prove such a danger, and that his subjective belief of a dangerous condition is not enough. Other Circuits have applied this formulation, and now it applies in the Second Circuit. Under the rule, plaintiff loses. The Court says he submits no evidence to support his generalized statement that the walkways at the rail yard were unsafe, other than that other employees had slipped when they walked. In addition, "it is not necessarily true that an employee slipping on a walkway indicates that the trip as a whole presented a hazardous condition." Other employees did not refuse to make that walk to the wheel shop, and while they ultimately drove to the wheel shop, that could mean it they were tired or cold. The foremen also believed the walk was safe. While plaintiff could have argued that the foremen reached this conclusion as a means to convince the workers to get to the wheel shop and continue working, plaintiff did not make such an argument. 

Plaintiff also claims that management retaliated against him for reporting the unsafe walkway condition. This issue also allows the Court of Appeals to clarify the standards for these cases, holding for the first time that plaintiffs must provide some evidence of retaliatory intent. As other Circuits have held, the statute expressly requires the plaintiff to show that management "discriminated" against him for engaging in protected activity. That implies a requirement that the plaintiff show retaliatory intent. While the plaintiff need not show that retaliatory intent was the sole factor behind the discipline, or that management acted only with retaliatory motive, "the plaintiff must . . . show more than a temporal connection between the protected conduct and the adverse employment action" to win the case. This standard is in line with that reached in other Circuits, from which the Second Circuit devises the following guidelines: 

we will consider the following factors: (1) whether and to what extent the disciplinary measures were related to the protected activity, (2) the temporal relationship between the protected activity and the disciplinary measures, including whether any intervening incidents occurred that could independently justify the discipline, (3) whether the disciplined employee was represented by counsel or a similar representative in the disciplinary proceedings, and whether the disciplinary measures were upheld on appeal, (4) whether, if applicable, the disciplinary measures were upheld following Department of Labor proceedings, and (5) whether the persons accused of hostility towards the employee’s protected activity participated in the disciplinary decision.

Under the retaliation test, plaintiff loses. Factors 3 and 5 favor Metro-North. Factor 4 is inapplicable because DOL did not get involved, and factors 1 and 2 favor plaintiff, but only slightly. "Rather, the record supports that Tompkins was disciplined for failing to meet a legitimate expectation by an employer that when orders are given employees will comply." 

Plaintiff further claims retaliation because he was disciplined for conduct unbecoming an employee after speaking to his foreman in the lunchroom about the discipline and discrepancies between the foreman's account and that provided by other witnesses (a conversation that made the foreman feel threatened). Plaintiff says this discipline was also motivated by his safety complaint. While factor 3 favors plaintiff because an arbitrator overturned the discipline from that incident, factors 1 and 2 strongly favor management; the lunchroom incident with the foreman was an intervening event that killed off the causation between the protected activity relating to safety and the discipline. The fact that the discipline was overturned does not support plaintiff's argument.