Under certain whistleblower protection laws, a retaliatory investigation can be actionable. Two cases decided under the Federal Rail Safety Act (FRSA) outline when an employer’s investigation into an employee’s conduct may be considered actionable retaliation.
In Vernace v. Port Authority Trans-Hudson Corp., ARB No. 12-003, ALJ No. 2010-FRS-018 (ARB Dec. 21, 2012), Laura Vernace filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging that her employer, Port Authority Trans-Hudson Corporation (PATH) violated the FRSA by retaliating against her after she filed an injury report that disclosed an injury she incurred from sitting on a broken chair at work. Soon after she filed the injury report, PATH sent her a charging letter accusing her of “fail[ing] to exercise . . . care and utilize safe work practices to prevent injury” when she did not inspect the chair before sitting on it. A year-long investigation ensued.
OSHA found a violation of the FRSA anti-retaliation law, and the ALJ also determined that PATH unlawfully discriminated against Vernace. In affirming the ALJ’s findings, the ARB held that Path took an adverse action against Vernace when it subjected her to a disciplinary investigation. The ARB noted that the ALJ rightly stated that the FRSA regulations prohibit “intimidating” and “threatening” actions. Further, the ARB explained that Congress had expressly included “threatening discipline” as prohibited discrimination under the FRSA.
PATH contended that it had initiated the disciplinary investigation because of Vernace’s allegedly unsafe use of a chair and not because she submitted an injury report. The ALJ and ARB, however, found that this distinction ignored the plain language of the statute as well as the FRSA’s legislative history citing abuse and intimidation practices often inflicted on railroad workers for reporting or attempting to report work-related injuries.
In Perez v. BNSF Railway Co., ARB Nos. 2017-0014, 2017-0040, ALJ No. 2014-FRS-00043 (ARB Sept. 24, 2020), the ARB clarified the types of investigations that can constitute actionable retaliation, and overturned Vernace to the extent that it stood for the proposition that all disciplinary investigations are adverse actions. Citing Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), the ARB held that all adverse actions, including alleged retaliatory investigations, must be considered in context, focusing on whether the action would dissuade a reasonable worker from engaging in protected activity.
Perez worked a machinist for BNSF and was injured on the job while trying to prevent a door from falling off a train and onto another employee. He reported the injury to his supervisor and saw a doctor at an occupational clinic, per the instruction of a BNSF nurse case manager. Although he identified his injury in an injury report form as a strained hamstring, he attempted to tell the doctor about back pain four times during the course of treatment, but the doctor told him repeatedly that he did not need an MRI or to see a specialist and should instead give it some time to heal. Perez testified that he believed that the doctor worked for BNSF, and therefore assumed that he had reported his back injury to his employer. BNSF, however, alleged that Perez did not report the back injury to a regular BNSF employee until two years later. Perez testified that he had also reported his injury and the incident to a company claims manager, who advised him to wait to submit a claim.
Perez sought treatment for leg and back injuries from his primary care physician and an orthopedic specialist but did not inform BNSF about the treatment until two years after his injury, when he sought a release for back surgery, which was scheduled for the next day. He and his union representative met with the yard foreman, who asked if Perez had informed anyone about the back injury. The foreman stated that the doctor Perez had reported the injury to was not a company doctor, and the claims manager gave a conflicting version of the conversation he and Perez had had two years earlier.
BNSF sent Perez a notice of investigation a month later informing him that the investigation was prompted by an allegation of late reporting of a back injury and an allegation of dishonesty based on Perez’s assertion that the claims manager refused to take his statement. At the close of the investigation, the manager in charge of the company’s discipline policy recommended no discipline, and Perez returned to work having lost no pay, seniority, or benefits.
Citing the ARB’s decision in Vernace, the ALJ rejected BNSF’s claim that an investigation that does not result in discipline is not an adverse action, and held that BNSF’s investigation of Perez was retaliatory and constituted an actionable adverse employment action.
On appeal, the ARB held that a disciplinary charge and related investigation alone do not automatically constitute actionable adverse actions. Investigations may be adverse actions when those investigations are retaliatory, pretextual, performed in bad faith, or harassing. And an investigation might be an adverse action where it accompanies other material consequences that could affect an employee’s terms and conditions of employment or that might otherwise dissuade a reasonable employee from engaging in protected activity.
In remanding the case to the ALJ, the ARB directed the ALJ to determine whether BNSF’s investigation was bad-faith harassment, or if instead it had been a good-faith, routine investigation to determine whether a violation of the company’s policies had occurred. Where a disciplinary investigation was retaliatory, harassing, and made in bad faith, a court may find that the investigation is an actionable adverse action.