WHISTLEBLOWER PROTECTION - PROVE RETALIATION

Whistleblower Protection Shield - FRSA
RAILROAD RETALIATION REPORT - XII
Written By: James L. Farina, Alan J. Fisher and Steven P. Garmisa

Federal judges have experience dealing with statutes that prohibit employers from retaliating against employees who engage in protected activity. Decisions issued by federal judges in cases involving other anti-retaliation laws will provide insight into how they may handle claims by railroad employees under Section 20109 of the Federal Rail Safety Act.

A series of Federal laws prohibit employers from discriminating against employees based on race, sex, or various types of disability. These laws often prohibit employers from retaliating against employees who act in good faith when complaining about prohibited types of discrimination. Ruling in cases involving the anti-retaliation sections of these other statues, federal judges have explained that there are two ways of proving that adverse action taken against an employee was motivated by unlawful retaliation.

Guidelines from the U. S. Court of Appeals for the 7th Circuit

The Facts

In a 2006 decision involving alleged retaliation against an employee who complained about alleged race and disability discrimination, for example, the United States Court of Appeals for the 7th Circuit explained that you can prove a retaliation claim with two kinds of evidence: direct and indirect.

“Under the direct approach,” the Court of Appeals explained, “a plaintiff must present evidence of: (1) a statutorily protected activity; (2) an adverse action; and (3) a causal connection between the two.” The key question in that case was whether “suspicious timing” between (1) complaints about alleged discrimination, and (2) adverse action by the employer, were sufficient to prove (3) that the employer acted in retaliation for the complaints.

Deciding against the plaintiff, the U.S. Court of Appeals explained that:

“Speculation based on suspicious timing alone does not support a reasonable inference of retaliation. Indeed, the mere fact that one event preceded another does nothing to prove that the first event caused the second; the plaintiff also must put forth other evidence that reasonably suggests that her protected . . . activities were related to her employer’s discrimination and termination.”

As for the indirect approach, the U.S. Court of Appeals continued, the employee “must establish a prima facie case of retaliation by offering evidence of the following: (1) that she engaged in protected activity; (2) that she was subject to an adverse employment action; (3) that she was performing her job satisfactorily; and (4) that no similarly situated employee who did not engage in protected activity suffered an adverse employment action.”

The plaintiff in the 2006 case lost because the U.S. Court of Appeals concluded she failed to present evidence on the third and fourth ingredients for “indirect” proof of retaliation.

The 2006 case involved a lady named Pamela J. Burks who alleged her employer retaliated against her after she complained about race and disability discrimination. Burks said she received a favorable performance review, but then – several months after she complained about discrimination – Burks said she received a bad evaluation and was fired.

Based on the suspicious timing, Burks argued that she got a poor performance evaluation, and was later fired, in retaliation for complaining about discrimination. The Court of Appeals ruled that Burks failed to present enough evidence to establish retaliation under either the direct or indirect evidence approach.

Direct Evidence

Burks established the first two ingredients for proving a retaliation claim with direct evidence. Specifically, she presented evidence that she engaged in “a statutorily protected activity,” and suffered “an adverse action.” The problem was the third requirement: “a causal connection between the two.” As the Court of Appeals explained:

“Ms. Burks appears to have established the first two prongs: A complaint about race and disability discrimination to supervisors is protected activity, and termination is certainly an adverse action. “Ms. Burks has not put forth any direct evidence of a causal link between her complaints of discrimination, her negative job reviews and her ultimate termination. Instead, she relies on the timing of her complaints as circumstantial evidence of retaliation.

“She contends that she first complained of race and disability discrimination in March 2002, after her first positive three-month review.

“After that complaint, Ms. Burks points out, she received her six-month review which was, in contrast to the three-month review, negative. She continued to complain and receive negative feedback until she ultimately was terminated.

“Ms. Burks therefore contends that, because her complaints, her negative reviews and termination occurred after her favorable review, a permissible inference is that her complaints of discrimination were the cause of the negative reviews and termination.

“However, we have stated that speculation based on suspicious timing alone does not support a reasonable inference of retaliation. Indeed, the mere fact that one event preceded another does nothing to prove that the first event caused the second; the plaintiff also must put forth other evidence that reasonably suggests that her protected speech activities were related to her employer’s discrimination and termination.

“Ms. Burks presents no evidence of a retaliatory motive other than the timing of her termination. Therefore, she has not met her burden under the direct method of proof.”

Indirect Evidence

“Ms. Burks’ retaliation claim also fails under the indirect approach,” the Court of Appeals wrote. The Court explained:

“Under such an approach, Ms. Burks first must establish a prima facie case of retaliation by offering evidence of the following: (1) that she engaged in protected activity; (2) that she was subject to an adverse employment action; (3) that she was performing her job satisfactorily; and (4) that no similarly situated employee who did not engage in protected activity suffered an adverse employment action.

“Ms. Burks has not established that she was performing her job satisfactorily.

“Moreover, she points to no similarly situated individuals who did not engage in protected speech activity. Therefore, defendants properly were awarded summary judgment.” Burks v. Wisconsin Dept. of Transp., 464 F.3d 744 (7th Circuit 2006).

Based on the Burks case, railroad employees, union representatives and involved attorneys need to look carefully at the facts and determine whether there is enough evidence – direct or indirect – to meet the burden of proof for a retaliation claim.

If you or a loved one have suffered a serious injury or wrongful death at work on the railroad, or been retaliated against at work for being a railroad whistleblower, call an experienced FELA personal injury lawyer / train accident lawyer at Hoey & Farina at 1-888-425-1212, or complete this form, for your FREE CONSULTATION. Hoey & Farina represents clients throughout the United States.

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