BNSF wins remand of agency decision in whistleblower case
Clients BNSF Railway Company
Jones Day successfully represented BNSF Railway Company on appeal from a decision of the Department of Labor's Administrative Review Board ("ARB") under the Federal Railroad Safety Act ("FRSA"). The ARB had found BNSF retaliated against the plaintiff for reporting a workplace injury when the company fired him for dishonesty nearly five years later. The ARB had rejected the administrative law judge's ("ALJ") holding that the plaintiff proved retaliation simply by showing his injury report ultimately led BNSF to discover his dishonesty. It nonetheless affirmed the ALJ's decision by relying on other factual findings.
The Eighth Circuit rejected both the ARB's and the ALJ's reasoning. In doing so, it joined the Seventh Circuit in holding that merely showing a protected activity initiated events leading to an adverse action cannot satisfy the FRSA’s contributing factor causation standard. The court further found that the ALJ findings the ARB purported to rely on were "either non-existent or insufficient to support" the ARB's decision. The court vacated the ARB's order and remanded the case to the Department of Labor.
BNSF Ry. Co. v. U.S. Dep’t of Labor, ARB, No. 16-3093 (8th Cir., August 2017)