Case: 20-60274 Document: 00515817679 Page: 1 Date Filed: 04/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 12, 2021
No. 20-60274
Lyle W. Cayce
Clerk
Jeff Yowell,
Petitioner,
versus
Administrative Review Board, United States
Department of Labor,
Respondent,
Fort Worth & Western Railroad Company,
Intervenor.
On Petition for Review of a Final Decision and Order of the
United States Department of Labor’s Administrative Review Board
ARB Case No. 2019-39
Before Jolly, Southwick, and Costa, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
A railroad employee has petitioned for review of a decision by the
Department of Labor’s Administrative Review Board (“ARB”) that upheld
his discharge. The petitioner argues that he was improperly terminated for
reporting a job-related injury, an act that the Federal Railroad Safety Act
Case: 20-60274 Document: 00515817679 Page: 2 Date Filed: 04/12/2021
No. 20-60274
(“FRSA”) protects. We hold, instead, that the ARB did not err in finding
that the railroad terminated the petitioner’s employment for failing to
comply with his obligation to report promptly all known injuries and that his
eventual acknowledgement of the injury was not a “contributing factor” for
purposes of the FRSA. The petition is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
The railroad employee, Jeff Yowell, challenges only the ARB’s legal
conclusions. Because there is no dispute about the facts, we summarize them
as stated in the ARB’s decision.
Yowell began working for Fort Worth & Western Railroad Company
(“FWWR”) in May 2017. FWWR had a workplace-injury policy that
required reporting an injury “immediately, no matter how small,” to the
supervisor. The purposes of this policy were to further employee safety and
allow the railroad to investigate the site of any injury immediately.
At 11:00 p.m. on August 28, 2017, Yowell began his night shift. Early
the following morning, he reported that he had injured his knee during that
shift. He met with company representatives that same morning to identify
the cause of his injury and to determine whether he required medical
treatment. Yowell’s recounting of the events was inconsistent in detailing
both how he injured himself and where the injury occurred. Chance Gibson,
the initial representative to speak with Yowell, had doubts about the accuracy
of Yowell’s explanation and asked Yowell to write out a statement.
At that point, Chief Transportation Officer Jared Steinkamp arrived.
Steinkamp learned of the inconsistencies that Yowell had provided and
sought to uncover the origin of Yowell’s injury. Yowell eventually admitted
that he had injured his knee sometime the prior week but had failed to report
2
Case: 20-60274 Document: 00515817679 Page: 3 Date Filed: 04/12/2021
No. 20-60274
it. That injury resulted in swelling and Yowell’s need to wear a brace, yet
Yowell chose not to disclose his injury to the company for more than a week.
Yowell wrote out two statements that identified the injury from the previous
week as the reason for his current pain. Yowell does not dispute that he had
all along been aware of an injury. Yowell received medical treatment for this
injury.
Because Yowell had violated company policy by failing to report the
knee injury immediately, Gibson recommended Yowell’s employment be
terminated. After further discussions with FWWR’s CEO and humanresources department, Steinkamp terminated Yowell’s employment on
September 13, 2017.
Yowell first sought review of his employment termination through the
Occupational Safety and Health Administration, which found that his
employment termination did not violate the FRSA. Yowell objected to that
finding and requested a hearing before an administrative law judge (“ALJ”).
A hearing occurred in April 2018. The ALJ concluded that Yowell’s
employment termination violated the FRSA, and it ordered reinstatement,
backpay, and other relief. FWWR sought further review, and the ARB
reversed the ALJ’s decision. The ARB held there had been no violation of
the FRSA. Yowell petitioned this court for review. His arguments criticize
the causation standard that the ARB applied to his case.
DISCUSSION
The Administrative Procedure Act governs our review of this case.
Halliburton, Inc. v. Admin. Rev. Bd., 771 F.3d 254, 258 (5th Cir. 2014). The
Act requires a court to “hold unlawful and set aside agency action, findings,
and conclusions found to be . . . arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). We review
3
Case: 20-60274 Document: 00515817679 Page: 4 Date Filed: 04/12/2021
No. 20-60274
the agency’s conclusions of law de novo. Halliburton, 771 F.3d at 258. An
agency’s factual findings are reviewed to determine if they are supported by
substantial evidence. Williams v. Admin. Rev. Bd.,
376 F.3d 471, 475–76 (5th
Cir. 2004). “Under the substantial evidence standard, the ARB’s decision
must be upheld if, considering all the evidence, a reasonable person could
have reached the same conclusion as the ARB.”
Id. at 476 (citing Asarco, Inc.
v. NLRB,
86 F.3d 1401, 1406 (5th Cir. 1996)). “Substantial evidence is ‘more
than a mere scintilla but less than a preponderance.’”
Id. (quoting Ripley v.
Chater,
67 F.3d 552, 555 (5th Cir. 1995)).
Yowell divides the issues for our review in a manner that we will not
follow precisely, but we will address all his arguments in the following order.
First, we discuss the statutory requirements needed to prevail in a FRSA
action. Then, we explain what satisfies the contributing-factor standard.
Finally, we apply that standard to Yowell’s case.
I. Requirements for proving retaliation under the FRSA
The FRSA focuses on promoting safety in the railroad industry. 49
U.S.C. § 20101. Congress later amended the Act to create stronger
protections for employees who engage in whistleblower activities. See Pub.
L. No. 110–53, § 1521,
121 Stat. 266 (2007). One such protection prevents
railroad carriers from discriminating or retaliating against an employee who
engages in a protected activity.
49 U.S.C. § 20109. Railroad carriers “may
not discharge, demote, suspend, reprimand, or in any other way discriminate
against an employee if such discrimination is due, in whole or in part, to the
employee’s lawful, good faith act done, or perceived by the employer to have
been done or about to be done.” § 20109(a).
The statute lists seven protected activities. § 20109(a)(1)–(7). One
of the enumerated activities is central in this case, that of “notify[ing], or
attempt[ing] to notify, the railroad carrier . . . of a work-related personal
4
Case: 20-60274 Document: 00515817679 Page: 5 Date Filed: 04/12/2021
No. 20-60274
injury.” § 20109(a)(4). Two more subsections of the employee-protection
provision guard against retaliation for actions related to safety or security
conditions or for seeking and receiving medical attention. § 20109(b), (c).
An action brought to enforce these protections “shall be governed by
the legal burdens of proof set forth in section 42121(b).”
§ 20109(d)(2)(A)(i). We have described the burden shifting of that statute to
require an employee first to establish by a preponderance of the evidence
that: (1) he had been involved in a protected activity; (2) the employer was
aware that the employee had been involved in such an activity; (3) the
employee was subjected to an unfavorable personnel action; and (4) the
protected activity was a “contributing factor” in that unfavorable personnel
action. Allen v. Admin. Rev. Bd., 514 F.3d 468, 475–76 (5th Cir. 2008); see
§ 42121(b)(2)(B)(i). 1
Secondly, if an employee establishes a prima facie case, the burden
shifts to the employer to prove the same-action defense.
§ 42121(b)(2)(B)(iv). Under the same-action defense, a railroad carrier has
the opportunity to “demonstrate[] by clear and convincing evidence that [it]
would have taken the same unfavorable personnel action in the absence of
that behavior.” Id. The employee cannot obtain relief if the employer
succeeds in establishing the same-action defense. Id.
The parties here do not dispute that Yowell engaged in the protected
activity of reporting an injury, 2 that FWWR was aware of such activity, and
1
We have likened the burden shifting under this statute to that of the McDonnell
Douglas framework. Ameristar Airways, Inc. v. Admin. Rev. Bd., 650 F.3d 562, 566–67 (5th
Cir. 2011). We have also commented, though, that the two frameworks are “distinct.”
Allen v. Admin. Rev. Bd.,
514 F.3d 468, 476 (5th Cir. 2008). In our view, one of these
opinions emphasized the similarities, while the other acknowledged the differences.
2
FWWR argued to the ALJ and the ARB that Yowell did not engage in a protected
activity because his report of an injury was not made in good faith, but both rejected that
5
Case: 20-60274 Document: 00515817679 Page: 6 Date Filed: 04/12/2021
No. 20-60274
that FWWR terminated Yowell’s employment. The only dispute is whether
Yowell’s protected activity was a contributing factor in the unfavorable
personnel action.
II. The contributing-factor standard
We have previously defined “contributing factor” as “any factor,
which alone or in combination with other factors, tends to affect in any way
the outcome of the [employer’s] decision.” Allen, 514 F.3d at 475 n.3
(citation omitted). Our review today of the contributing-factor standard
includes a summary of the relatively recent change in the ARB’s
interpretation of that standard.
The fundamental disagreement between the parties is how to evaluate
a factual scenario in which an employee’s protected act itself reveals, or at
least leads to the discovery of, conduct for which discipline is otherwise
appropriate. The facts of this case, unsurprisingly, provide an archetype of
such a scenario: Was Yowell’s protected act of reporting a workplace injury
a contributing factor to Yowell’s being disciplined for failing to comply with
the obligation to report injuries promptly? FWWR maintains that the
discipline was for misconduct that is distinct from the protected act. Yowell
argues that the two were intertwined and that the railroad violated the FRSA.
The Department of Labor (“DOL”), which defends the ARB decision
to this court, argues a proximate-cause standard is implied in the FRSA. The
DOL contends that “an employee should not be able to shield himself from
discipline for his own workplace misconduct merely by reporting it to the
carrier himself.” FWWR similarly argues: “If the protected activity merely
begins a chain of events which leads to the employee being disciplined, that
contention. We do not interpret FWWR’s briefing to this court as continuing to dispute
that Yowell’s report of the injury constitutes a protected activity.
6
Case: 20-60274 Document: 00515817679 Page: 7 Date Filed: 04/12/2021
No. 20-60274
is insufficient to establish retaliation due to the protected activity, as required
by the FRSA.” Yowell responds that the ARB’s standard creates a
heightened burden on FRSA claimants that is incongruent with the FRSA’s
plain text and its policy goals.
The ALJ’s opinion in this case (which the ARB overturned) stated
that the necessary linking of the protected activity and the adverse action can
be achieved by showing the two are “inextricably intertwined”:
Protected activity and employment actions are inextricably
intertwined when protected activity “directly leads to the
[unfavorable] employment action in question, or the
employment action cannot be explained without discussing the
protected activity.” Benjamin v. Citationshares Mgmt., LLC,
ARB No. 12-029, ALJ No. 2010-AIR-001, slip op. at 12 (ARB
Nov. 5, 2013); DeFrancesco v. Union R.R. Co., ARB No. 10-114,
ALJ No. 2009-FRS-009, slip op. at [7] (ARB Feb. 29, 2012)
(finding the complainant’s suspension was directly intertwined
with his protected activity because had the complainant not
reported his injury, the respondent would not have conducted
an investigation that resulted in his discipline)[several
additional cited ARB decisions are deleted].
In its February 2020 decision in this case, the ARB explained that a
few months after the ALJ’s decision, the ARB abandoned the standards of
chain of events and inextricably intertwined events:
As we explained in Thorstenson, the ARB no longer requires
that ALJs apply the “inextricably intertwined” or “chain of
events” analysis. Thorstenson v. BNSF Ry. Co., ARB Nos. 18-
059, -060, ALJ No. 2015-FRS-052, slip op. at 10 (ARB Nov. 25,
2019) (“We note that the plain language of the statute does not
include the term ‘inextricably intertwined.’ Rather, this is a
construction that substitutes for, and in some cases
circumvents, the ALJ’s contributing factor or affirmative
defense analyses.”). [“]By placing the focus on how the
7
Case: 20-60274 Document: 00515817679 Page: 8 Date Filed: 04/12/2021
No. 20-60274
employer came to learn of the employee’s wrongdoing rather
than the employer’s actions based on that wrongdoing or
protected activity, [‘]chain of events[’] causation departs from
the statute’s [‘]contributing factor[’] text.[”] Id. at 10.
On review of the ARB’s Thorstenson decision, the Ninth Circuit
rejected the ARB’s articulation of a new approach; it did so in an opinion that
is not precedential, even in that circuit. Thorstenson v. U.S. Dep’t of Lab., 831
F. App’x 842, 843 (9th Cir. 2020). As far as we have discovered, the Ninth
Circuit is the only one to disagree with the ARB’s current interpretation of
contributing factor in situations such as those in the present case, namely,
that the protected act was what revealed the separate misconduct for which
the employee was disciplined. That Ninth Circuit panel held that the ARB
had improperly begun requiring proof that the protected activity was the
proximate cause of the adverse action, a standard that was inconsistent with
the Ninth Circuit’s FRSA caselaw.
Id. The DOL in this appeal argues that
a proximate-cause limitation in some form is implicit in the FRSA, but it
acknowledges that there is no all-purpose definition of such causation. We
will discuss proximate cause later. We at least observe now that the Ninth
Circuit’s reasoning is arguably inconsistent with several opinions from other
circuit courts that we will soon discuss.
The DOL and FWWR argue that not only is it improper to examine
how intertwined the relevant events were, but it is incorrect to apply a
standard that examines whether the adverse action was part of a chain of
events that also included the protected activity. Such causation examines
whether a protected activity set in motion succeeding events that resulted in
the adverse personnel action. We see no particular distinction between these
two standards. The ARB’s decision here disclaimed further reliance on
either a chain or an intertwining of events, as it is irrelevant “how the
employer came to learn of the employee’s wrongdoing.”
8
Case: 20-60274 Document: 00515817679 Page: 9 Date Filed: 04/12/2021
No. 20-60274
A significant part of the ARB’s explanation in this case of
“contributing factor” is the following that appeared in one paragraph of its
opinion. The ARB first stated that a contributing factor is “any factor, which
alone or in connection with other factors, tends to affect in any way the
outcome of the decision,” citing Rookaird v. BNSF Railway Co., 908 F.3d 451,
461–62 (9th Cir. 2018), which quoted Gunderson v. BNSF Railway Co.,
850
F.3d 962, 969 (8th Cir. 2017). The ARB then made this key point: “[T]he
contributing factor that an employee must prove is intentional retaliation
prompted by the employee engaging in protected activity,” quoting Kuduk v.
BNSF Railway Co.,
768 F.3d 786, 791 (8th Cir. 2014) (emphasis added).
Despite these statements, the ARB then immediately explained that “a
complainant need not prove a retaliatory motive beyond showing that the
employee’s protected activity was a contributing factor in the adverse
action,” quoting Araujo v. New Jersey Transit Rail Operations, Inc.,
708 F.3d
152, 158 (3d Cir. 2013). 3 Despite describing the legal principles in this way,
the ARB did not return to the issue of intent when setting out its analysis of
the facts.
The ARB was distinguishing between an employer’s intentional
retaliation “prompted” by protected activity and an employer’s motive to
retaliate. To understand what that distinction could be, we examined the
cited Third Circuit Araujo opinion and then the authorities Araujo relied
upon. We find no such distinction. What we find in Araujo was that an
employee in his or her prima facie case under the FRSA need not present
evidence of the employer’s “retaliatory motive”; when the burden shifts to
the employer, though, it can avoid liability by showing it would have taken
3
The ARB used the identical analysis and authorities that we just summarized in
its earlier Thorstenson decision. Thorstenson v. BNSF Ry. Co., ARB Nos. 18-059, -060, ALJ
No. 2015-FRS-052, 2019 WL 11901996, at *5 (ARB Nov. 25, 2019).
9
Case: 20-60274 Document: 00515817679 Page: 10 Date Filed: 04/12/2021
No. 20-60274
the same action even without the employee’s protected activity. Id. at 158–
59 (citing Marano v. Dep’t of Just.,
2 F.3d 1137, 1140–41 (Fed. Cir. 1993)). 4
Whatever the ARB identified as the difference between a retaliatory motive
and intentional retaliation is not readily apparent to us.
We now examine whether the ARB’s analysis in this case can be
upheld under our review standard. The language of the statute is a good place
for us to begin. The FRSA prohibits retaliation that is “due, in whole or in
part,” to the employee’s engaging in a protected activity. 49 U.S.C. §
20109(a). The Supreme Court has interpreted similar language as creating
liability if the employee’s action causes “even the slightest” influence on the
employer’s decision. CSX Transp., Inc. v. McBride,
564 U.S. 685, 692, 695–
99 (2011) (quoting Rogers v. Missouri Pac. R.R. Co.,
352 U.S. 500 (1957)).
Even such a broad interpretation, though, has its limits. CSX dealt
with a different federal statute involving railroad workers, the Federal
Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq. CSX Transp., 564
U.S. at 688. The Supreme Court reviewed whether importing a proximate-cause standard into that statutory framework was appropriate. Id. The Court
said that “‘proximate cause’ is shorthand for a concept: Injuries have
countless causes, and not all should give rise to legal liability.” Id. at 692.
Acknowledging that the meaning of the term varies, and many of the
definitions are confusing, the Court held that common sense imposes some
4
The Marano case was interpreting the Whistleblower Protection Act that said
“corrective action” in favor of an employee was to be ordered when the employee’s
whistleblowing “was a contributing factor in the personnel action which was taken . . .
against such employee.” 5 U.S.C. § 1221(e)(1); Marano,
2 F.3d at 1140 (alteration in
original). The Marano opinion quoted a Senate Report on the whistleblower legislation:
“Regardless of the official’s motives, personnel actions against employees should quite
[simply] not be based on protected activities such as whistleblowing.” Marano,
2 F.3d at
1141 (alteration in original) (quoting S. Rep. No. 413, 100th Cong., 2d Sess. 16 (1988)
(accompanying S. Rep. No. 508)).
10
Case: 20-60274 Document: 00515817679 Page: 11 Date Filed: 04/12/2021
No. 20-60274
limits on the FELA’s coverage of a worker’s “injury or death resulting in
whole or in part from [the employing railroad’s] negligence.” Id. at 703
(quoting
45 U.S.C. § 51). Dissenters thought the CSX majority imposed too
few limits on causation under the FELA. CSX Transp., 564 U.S. at 705–06
(Roberts, C.J., dissenting) (concluding that the majority’s test amounts to
but-for causation). Our use of CSX is not to borrow its definitions but only
to support that limits on causation are inherent in statutes such as the FRSA.
Here, we have even more than the common-sense limitation
inherently present in the FELA. The burden-shifting framework refines our
understanding of the “in whole or in part” language because the protected
activity must be a contributing factor to the adverse personnel action. 49
U.S.C. § 20109(d)(2)(A)(i); § 42121(b)(2)(B)(i). “Contributing” requires
some degree of causation, though importing a traditional definition of
“proximate cause” is not helpful.
We examine other circuit courts of appeals’ decisions to identify
where to draw this line. The Eighth Circuit has rejected the relevance of
inextricably intertwined events to show a contributing factor. See, e.g.,
Neylon v. BNSF Ry. Co., 968 F.3d 724, 729–30 (8th Cir. 2020). 5 Under that
circuit’s interpretation, “the contributing factor that an employee must
prove is intentional retaliation prompted by the employee engaging in
protected activity.” Kuduk,
768 F.3d at 791. In the Eighth Circuit, it is this
requirement that the employer have intentionally retaliated due to the
employee’s protected act that makes the factual intertwining of events
insufficient for contributing-factor purposes. Heim v. BNSF Ry. Co., 849
5
Neylon cited a line of Eighth Circuit cases that rejected the inextricably
intertwined standard: Dakota, Minnesota & Eastern Railroad Corp. v. U.S. Department of
Labor Administrative Review Board, 948 F.3d 940, 946 (8th Cir. 2020), and Heim v. BNSF
Railway Co.,
849 F.3d 723, 727 (8th Cir. 2017).
11
Case: 20-60274 Document: 00515817679 Page: 12 Date Filed: 04/12/2021
No. 20-60274
F.3d 723, 727 (8th Cir. 2017). We already discussed that in this case, the ARB
relied on the Eighth Circuit’s Kuduk opinion to state that an employee must
prove intentional retaliation. The Fifth Circuit, though, has not yet decided
whether a FRSA claimant must prove intentional retaliation as part of a prima
facie case. See Epple v. BNSF Ry. Co.,
785 F. App’x 219, 222–23 (5th Cir.
2019). The DOL’s briefing in defense of the ARB decision in this case does
not rely on an absence of evidence of intent. We conclude that we need not
decide whether intent is an element.
The Seventh Circuit also requires more than a chain of events to
demonstrate a contributing factor. See, e.g., Holloway v. Soo Line R.R. Co.,
916 F.3d 641, 644 (7th Cir. 2019); Koziara v. BNSF Ry. Co.,
840 F.3d 873,
877 (7th Cir. 2016). In that circuit, “a plaintiff alleging retaliation in violation
of § 20109(a)(4) cannot point only to the sequence of events — an injury
report followed by a later dismissal — to show that the complaint was a
contributing factor in the adverse employment action.” Holloway,
916 F.3d
at 644. At least some of that circuit’s precedents are explicit that “the
‘contributing factor’ standard is lower than those applied in other antidiscrimination contexts,” but it is still necessary to show the employer acted
with improper motive. Armstrong v. BNSF Ry. Co.,
880 F.3d 377, 382 (7th
Cir. 2018). Thus, like the Eighth Circuit, it appears the Seventh Circuit’s
requirement of more than a mere chain or intertwining of events depends in
part on the need to prove an employer’s intent.
The Sixth Circuit has insisted that some greater degree of causation is
required, and not just proof of a chain of events. Lemon v. Norfolk S. Ry. Co.,
958 F.3d 417, 420 (6th Cir. 2020). That court considered an employee’s
argument that “without the injury report, he would not have lied to his
supervisor about speaking to others and, without that falsehood and others
discovered later, he would not have been fired.”
Id. The Lemon court
rejected this argument, saying that such a view of the contributing-factor
12
Case: 20-60274 Document: 00515817679 Page: 13 Date Filed: 04/12/2021
No. 20-60274
standard “eliminates causation from the liability inquiry.” Id. One way to
interpret the Lemon opinion is that the court was deciding it did not need to
plumb the depths of meaning within the term “contributing factor” because
it was clear from the record “that the railroad would have fired him anyway
due to his false statements.”
Id. at 419. That appears to be reference to the
same-action defense discussed earlier. § 42121(b)(2)(B)(iv).
The Lemon court also suggested that the employee’s contributing-factor argument did “too much[] and . . . too little.” Lemon, 958 F.3d at 420.
To explain its position, it provided hypotheticals. On the one hand, the
chain-of-events standard is too broad: “A woman quits her job after
becoming frustrated over few promotion opportunities. Even though she
could not have quit without taking the job in the first place, we would not say
accepting the job was a contributing factor to her decision to leave it.” Id.
On the other hand, it is too narrow: “[A]n employee . . . makes a pass at his
manager while reporting an injury. Discipline in that case would clearly be
caused — and justified — by the harassment, whether or not it occurred
when he gave his boss the injury report.” Id.
We close our review of other circuits with the Tenth Circuit’s helpful
analysis in BNSF Railway Co. v. U.S. Department of Labor, 816 F.3d 628 (10th
Cir. 2016). There, an employer learned about violations of company policy
through the employee’s updated injury report.
Id. at 639. The employee
could not “satisfy the contributing-factor standard merely by arguing that
[the railroad] would not have known of his delays in reporting his injuries
absent his filing the updated [r]eport”; nonetheless, the court found there
was other substantial evidence to support that the updated report was a
contributing factor to the adverse employment action.
Id. at 639–40. “[T]he
investigation that led to the firing was initiated before the investigation of
whether [the employee] was responsible for the accident,” the employee’s
supervisors allegedly discouraged his reporting, and the employment
13
Case: 20-60274 Document: 00515817679 Page: 14 Date Filed: 04/12/2021
No. 20-60274
termination occurred close in time to the protected activity. Id. Those
additional facts allowed the employee to establish contributing-factor
causation.
Id. at 640.
Yowell distinguishes these other circuits’ cases on factual bases. It is
true that the relevant precedents generally involve employees who were
disciplined for misconduct that was distinct from a protected activity, such
as for dishonesty or stealing. In our view, though, this argument is just
another way to say that reporting of an injury was inextricably intertwined
with learning that the report was late. Yowell also contextualizes his case as
presenting a question of “whether . . . a railroad carrier may put requirements
on how an employee must engage in FRSA protected acts, and then fire an
employee for not following the carrier’s requirements when the employee
engages in FRSA protected acts.” In essence, Yowell is all but arguing that
a railroad cannot require timely reporting.
We see the narrow question before us as this: If an employee’s late,
initially incorrect, but finally accurate report of a prior injury is what
informed a railroad of an employee’s violation of the obligation to report
injuries promptly, must that report be considered a contributing factor under
the FRSA for any adverse action? In answering the question, we know that
adverse employment action that is “due, in whole or in part,” to the
employee’s engaging in a protected activity is prohibited. § 20109(a).
Indeed, “even the slightest” influence from the protected activity will
invalidate the employer’s adverse action. CSX Transp., 564 U.S. at 692
(quoting Rogers, 352 U.S. at 506). FRSA liability does not arise, though,
unless the employee can prove that his engaging in a protected activity was a
contributing factor to the adverse employment action.
We have summarized a substantial amount of the caselaw on the
contributing-factor standard to assist us in answering this narrow question as
14
Case: 20-60274 Document: 00515817679 Page: 15 Date Filed: 04/12/2021
No. 20-60274
perceptively as possible. There is consistent support in other circuits’
analysis for what the ARB decided in this case and little authority that
disagrees. We do not disagree either.
Under the FRSA, when an employee engages in a protected activity
such as reporting a workplace injury, that employee is not insulated from
what would otherwise be appropriate discipline for misconduct that becomes
known to the employer at that time or during the course of the employer’s
addressing the protected activity. In simple terms, a protected activity does
not by itself shield an employee from the ramifications of workplace
misconduct.
We now examine the evidence in this case under the legal standard.
III. Applying the contributing-factor standard to this case
The final part of our analysis is to review the facts of this case. Yowell
agrees that all he has, though of course he argues that all he needs, is that
FWWR learned of his failure to comply with his obligation to report timely
all injuries when he made his delayed report, thereby making the protected
activity of reporting an injury a contributing factor in his employment
termination. There is nothing further, such as evidence that company
representatives attempted to prevent his report or discouraged him from
reporting.
The ARB accepted the following ALJ factual findings: Yowell was
discharged “because he did not promptly or immediately report his right
knee injury”; Yowell “failed to present any circumstantial evidence that
[FWWR] used [Yowell’s] report of injury, or his medical treatment as a
pretext to his discharge”; FWWR had not inconsistently applied its clearly
expressed discipline policy of prompt reporting; and the evidence
“demonstrably shows [Yowell] was terminated for the sole reason that he
reported his work-related knee injury on August 29, 2017, one week after it
15
Case: 20-60274 Document: 00515817679 Page: 16 Date Filed: 04/12/2021
No. 20-60274
occurred and as a result, [FWWR] terminated [Yowell] for violating its
employee handbook work and safety rule.”
As the ARB held, an employee may not rely solely on the fact that a
protected activity is what informed the employer of wrongdoing. Instead, the
focus must be on the employer’s actions after learning of wrongdoing. There
is unchallenged evidence in the record that it was not the fact of reporting an
injury but the failure to report promptly an earlier injury that caused Yowell
to be discharged.
There was no error in the ARB’s decision to allow FWWR to end
Yowell’s employment for his failure to report his work injury promptly.
The petition for review is DENIED.
16
Case: 20-60274 Document: 00515817679 Page: 17 Date Filed: 04/12/2021
No. 20-60274
E. Grady Jolly, Circuit Judge, concurring:
I concur with the understanding that the ultimate holding of this
opinion is, simply and succinctly: The protected activity provision cannot be
interpreted to shield an employee from proper disciplinary action when the
employee breaches a valid, established, and unchallenged work rule, and no
legal legerdemain can make it otherwise.
17
