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

 As revised by the United States Congress in 2007, Section 20109 of the Federal Rail Safety Act prohibits railroads from (1) firing, (2) demoting, (3) suspending, (4) reprimanding, or (5) “in any other way discriminating” against employees for engaging in specified protected activities. After listing the four most common types of retaliation, Congress added a fifth category to “catch” other kinds of retaliation.

How can you identify the kind of conduct by the railroad that is covered by the fifth category of prohibited retaliation? Specifically, what kinds of railroad retaliation are prohibited by the “catchall provision” in Section 20109?

Extreme cases are easy to identify. For example, if you report a work-related injury to your supervisor, and the railroad retaliates by firing you, then the railroad violated Section 20109. But what if your supervisor merely utters a single profanity when he finds out you reported a personal injury, and he takes no other adverse action against you? Is this the kind of retaliatory “discrimination” that is prohibited by Section 20109? We doubt it, because not every kind of unpleasant or rude conduct by a supervisor is going to qualify as the kind of retaliatory “discrimination” that is covered by the “catchall provision” in Section 20109. The crucial issue is to recognize when such conduct may exist. That leaves us with the type of case that is somewhere between these two extremes. We need to have an idea where judges and federal regulators will draw the line when ruling in a case involving the fifth type of retaliation.

The United States Supreme Court provided guidance on this issue two years ago, in a case involving the anti-retaliation section under Title VII of the Civil Rights Act of 1964. The case, which is available on the U.S. Supreme Court’s website, is entitled Burlington Northern & Santa Fe Railway Co., Petitioner v. Sheila White (2006).

BNSF v. Sheila White

Sheila White worked for the Burlington Northern & Santa Fe Railway Co. as a track laborer in Tennessee. Ms. White sued BNSF in federal court, alleging that railroad supervisors retaliated against her after she filed two complaints with the Equal Opportunity Employment Commission.

In her EEOC complaints, Ms. White claimed she was the victim of gender discrimination. When her supervisors found out about the EEOC complaints, White says they retaliated by (1) taking away her assignment as a fork-lift operator, and (2) suspending her without pay for 37-days, based on false charges of insubordination.

White’s lawsuit was based on the portion of Title VII that prohibits an employer from “discriminating” against an employee in retaliation for filing a complaint with the EEOC. The jurors concluded that White was the victim of unlawful retaliation, and they ordered BNSF to pay $43,500 in compensatory damages, plus $3250 for her medical expenses.

The United States Supreme Court agreed to review the case based on an appeal by the BNSF. In its appeal, BNSF argued that the anti-retaliation section of Title VII did not apply.

The issue for the U.S. Supreme Court was to determine what kind of “discrimination” is prohibited by the anti-retaliation section in Title VII.

The railroad made two arguments to the Supreme Court. First, BNSF argued that the only type of “discrimination” covered by the anti-retaliation provision in Title VII is hostile conduct by a railroad that involves the terms and conditions of employment. The second argument from BNSF was that the kind of retaliation alleged by White was not severe enough to violate the anti-retaliation law. The U.S. Supreme Court rejected both arguments.

Not Limited To Terms and Conditions of Employment

Under the railroad’s first argument, if a railroad supervisor retaliated against an employee by puncturing the tires of the employee’s car, while it was parked at the employee’s home, this would not be a violation of the anti-retaliation law, because it did not affect the “terms and conditions of employment.”

The Supreme Court explained that the type of discrimination prohibited by the anti-retaliation law is not limited to retaliation involving the “terms and conditions of employment.” The Supreme Court realized that “an employer can effectively retaliate against an employee by taking actions not directly related to his or her employment or by causing him harm outside the workplace.”

As the Supreme Court explained, the anti-retaliation provision “is not limited to discriminatory actions that affect the terms and conditions of employment.” Instead, the Supreme Court concluded, “The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.”

Retaliation must be Materially Adverse to a Reasonable Person

As for the railroad’s second argument concerning how harmful the discrimination has to be in order to violate the anti-retaliation provision, the Supreme Court ruled that the railroad’s retaliation must be severe enough that it would likely discourage a “reasonable employee” from engaging in protected activity.

Specifically, in a retaliation case, the Supreme Court said, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge [under Title VII].” The reason for adopting this rule, the Supreme Court said, was to “separate significant from trivial harms.”

The Supreme Court explained that the anti-retaliation law is not violated when the employee has only suffered “from those petty slights or minor annoyances that often take place at work and that all employees experience.” After all, the purpose of the anti-retaliation provision is to prevent employers from discouraging or deterring employees from invoking their rights under federal law. “And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence,” the Supreme Court noted.

To clarify the situation, the Supreme Court said that the severity of the railroad’s retaliation should be evaluated by looking through the eyes of a “reasonable employee.” For example, someone who worked as a clerk in a dress shop might be very sensitive to snubs from supervisors. But, if a “reasonable employee” would just shrug off such conduct from a supervisor, and the employee would not have been deterred from invoking federal rights, then the supervisor’s conduct would not amount to a violation of the anti-retaliation section in Title VII.

The Supreme Court referred to the reactions of a “reasonable” employee because it believed that the provision’s standard for judging harm must be objective. Otherwise judges would have the difficult task trying to determine a plaintiff’s unusual subjective feelings.

Finally, the Supreme Court stated that it “phrased this standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.” Providing an example, the Supreme Court explained, “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children.”


Applying these new rules, the U.S. Supreme Court affirmed the verdict in favor of Sheila White. Taking away White’s assignment as a forklift operator, and suspending her without pay for more than a month based on an untrue charge of insubordination, was clearly severe enough to violate the anti-retaliation law.

Although the Sheila White case involved retaliation under Title VII of the Civil Rights Act, we believe it provides important guidance for possible claims of retaliation by railroad whistleblowers under Section 20109 of the Federal Railroad Safety Act.

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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