Third Circuit Applies Employee-Friendly Burden Shifting Test To FRSA Whistleblower Retaliation Claim

In the first appellate decision to address the Federal Rail Safety Act (FRSA) burden-shifting standard, since the law was amended in 2007, the Court of Appeals for the Third Circuit applied the employee-plaintiff friendly two-part test first established to adjudicate whistleblowing claims in the airline industry in Araujo v. New Jersey Transit Rail Operations, Inc., No. 12-2148 (3d Cir. Feb. 19, 2013)

This same burden-shifting framework, which the appellate panel intentionally described as employee friendly, applies to whistleblower claims brought by: employees, contractors and subcontractors of air carriers (Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21), 49 U.S.C. § 42121); publicly traded companies (Sarbanes Oxley, 18 U.S.C. § 1514A(b)(2)(c)); nuclear power industries (Energy Reorganization Act (ERA), 42 U.S.C. § 5851(b)(3); railroad carriers (FRSA, 49 U.S.C. § 20109(d)(2)(A)); employees who refuse to operate a vehicle (Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105); and, non-federal employees who report concerns about the use of stimulus funds (American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5, § 1553(c)(1)).

AIR-21 Burden Shifting Framework

FRSA, enacted to promote safety in railroad operations, was substantially amended in 2007 to expand the law's anti-retaliation measures and vest the Department of Labor with enforcement authority. Those amendments imported the AIR-21 whistleblower rules and procedures, including a two-part burden-shifting test that the Third Circuit characterized as "much more protective of plaintiff-employees" and "much easier for a plaintiff to satisfy than the McDonnell Douglas standard."

Unlike McDonnell Douglas, the AIR-21 framework: (1) allows an employee to establish a prima facie case by showing that the protected activity was merely a "contributing factor," not a motivating factor; and (2) places a "steep" burden on the employer to demonstrate by "clear and convincing evidence" that it would have taken the same adverse action even absent the protected activity. 49 U.S.C. § 42121(b)(2)(B)(i)-(ii).

This is in stark contrast to the much easier McDonnell Douglas defense burden that requires an employer to articulate simply a non-discriminatory reason, which then requires the plaintiff to establish by a preponderance of the evidence that the employer's proffered reason was a pretext. The McDonnell Douglas methodology never shifts the...