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

Fingerprints at a crime scene are clues and tell a story. One type of “fingerprint” that can help prove a retaliation case against a railroad is when there is a short gap in time between (1) the date the railroad discovers that an employee engaged in “protected activity,” and (2) the date the railroad takes adverse action against the employee. And, railroads that retaliate against employees for exercising statutory rights don’t like leaving fingerprints either.

If an employee reports an injury on Day One, and then on Day Two the railroad starts proceedings to fire the employee, the suspicious timing could persuade a judge that the firing was illegal retaliation. To avoid leaving that type of “fingerprint,” a crafty railroad might wait a few months before firing the employee. But a railroad that delays firing an employee for a few months might leave a different kind of fingerprint – proof of “hounding” the employee.

Marvin Edwards, for example, worked in Connecticut as a lineman for Metro-North, a commuter railroad. Edwards sent a complaint to a Connecticut agency, accusing Metro-North of race discrimination. Then, according to Edwards, the railroad started “hounding” him with intense scrutiny. And seven months later, the railroad fired Edwards.

Edwards sued in federal court, accusing Metro-North of retaliation, in violation of civil rights laws. According to Edwards, (1) the firing was retaliation for the discrimination complaint, and (2) the excuse given by the railroad for firing him was phony.

In response, Metro-North submitted a “motion for summary judgment.” Basically, this type of motion argues that the evidence is so one-sided that the plaintiff does not even deserve a jury trial. According to the railroad’s motion, the seven-month delay between the discrimination complaint and the decision to fire Edwards meant that Edwards could not prove that the firing was retaliation for the discrimination complaint. In other words, the railroad argued there were no fingerprints of retaliation.

Denying Metro-North’s motion, the trial judge explained that the timing of the firing – when combined with the alleged “hounding” – was enough to create a genuine dispute about whether the railroad fired Edwards for engaging in protected activity. Edwards v. Metro-North, 463 F.Supp.2d 279 and 2006 WL 2790402 (2006).

\When an employee alleges he was fired in retaliation for engaging in protected activity, the judge explained, the employee has the initial burden of presenting evidence that is sufficient to support three ingredients. The three things that the plaintiff has to initially establish are: (1) that the employee engaged in protected activity; (2) the Railroad knew that the employee engaged in protected activity; and (3) the employee suffered significant adverse action.

Once the employee presents evidence supporting each of these three ingredients, the burden then shifts to the employer to present evidence that there was a legitimate reason for firing the employee. If the employer shows that there was a legitimate reason for firing the employee, then the burden shifts back to the employee to prove – by a preponderance of the evidence – that the excuse presented by the employer was phony.

One way of establishing that the railroad’s excuse for firing an employee was phony is to show a suspiciously short period of time between the railroad’s (1) knowledge of the protected activity, and (2) the decision to fire the employee.

In the Edwards case, Metro-North argued that the seven-month gap between the (1) discrimination complaint, and (2) the decision to fire Edwards, was too lengthy to support the conclusion that the firing was retaliation. Metro-North relied on a United States Supreme Court case called Clark County School District v. Breeden, 532 U.S. 268 (2001).

In Breeden, the U.S. Supreme Court started by noting there are a series of other cases where judges decided that “mere” closeness in time between “an employer’s knowledge of protected activity and an adverse employment action” is enough to prove that the firing decision was motivated by the desire to retaliate against the employee. However, the Supreme Court explained, these were all cases where the timing was “very close” between (1) the date the employer found out the employee engaged in protected activity, and (2) the date of the firing. Based on these cases, Metro-North argued that the seven-month delay was not close enough to prove it retaliated against Edwards for his discrimination complaint.

Rejecting this argument, the judge in the Edwards case explained that the Supreme Court in Bredeen was referring to cases where the only evidence that the firing was motivated by a desire for retaliation was the closeness in time between the employer’s knowledge of the protected activity and the firing. Marvin Edwards was not just relying on the timing of the firing to prove retaliation. Instead, Edwards was also relying on evidence that the railroad started “hounding” him after he complained of discrimination.

The judge in the Edwards case concluded that:

“This ongoing ‘hounding’ preceding [Edward’s] termination could support an inference that, after plaintiff filed his [discrimination] charge, defendants were simply lying in wait for an ‘excuse’ to fire plaintiff in retaliation for his filing of the charge.

“Thus, contrary to defendants’ contention, there is evidence to support an inference of ‘continuing retaliation’ that is sufficient to strengthen the causal link between the filing of plaintiff’s [discrimination] charge in March 2003 and his termination approximately 7 months later, specifically, ‘hounding’ that was ongoing during that time period.”

Edwards was entitled to a jury trial on his retaliation claim, the judge explained, because “a jury could reasonably infer that the ‘hounding’ was retaliatory.” Despite a 7-month delay, evidence that the railroad started “hounding” Edwards amounted to an important fingerprint of unlawful retaliation.

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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