Under certain whistleblower protection laws, there is a deliberate misconduct defense under which an employee who deliberately causes a violation of a health or safety law would not be protected for reporting that violation. Where the employer lacks a deliberate misconduct affirmative defense, a protected disclosure revealing the employee’s violation of a rule or policy typically will not justify an adverse action because the adverse action is inextricably intertwined with the whistleblowing. At a minimum, the employer must prove that it would taken the adverse action absent the employee’s disclosure.
In Stallard v. Norfolk Southern Railway Co., ARB No. 16-028, ALJ No. 2014-FRS-149 (ARB Sept. 29, 2017), the ARB held;
The Board has repeatedly found that if, as here, the protected activity and the adverse action are .. inextricably intertwined,” there exists a presumptive inference of causation. In this case, Stallard’s injury report led to a mistaken medical report indicating that his injury had occurred at home, rather than on-duty. The misinformation contained in the medical injury report, in tum, led Stallard’s employer to question his veracity and issue the charge letter. Here, “the basis for the adverse action cannot be explained without discussing the protected activity.” This chain of events, where no hearing has yet occurred, raises an automatic presumptive inference of causation because the injury report and the adverse action are inextricably intertwined. Of course, Norfolk Southern may ultimately rebut the presumption and prove that issuing the charge letter was entirely legitimate. But on a motion for summary decision, it would be improper to ignore the evident connection between the protected activity and the adverse action and somehow conclude that they had nothing to do with each other.
We recognize that this presumptive inference of causation may make it difficult for employers to prove the legitimacy of discipline imposed on injured employees. Nevertheless, the presumption is supported by sound policy reasons. The FRSA’s legislative history, as outlined above, reveals a congressional intent to comprehensively address the problem of railway retaliation for occupational injury reporting. Effective enforcement of the Act requires presumptive causation under circumstances such as Stallard’ s, where viewing the alleged falsification of an injury report as an “independent” ground for scheduling a hearing could easily be used as a pretext for eviscerating protection for injured employees.