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Is threatened disciplinary action an adverse action under the whistleblower retaliation laws?

Yes, threatening a whistleblower with disciplinary action can constitute an actionable adverse action.  In Stallard v. Norfolk Southern Railway Co., ARB No. 16-028, ALJ No. 2014-FRS-149 (ARB Sept. 29, 2017), the Department of Labor’s Administrative Review Board held that the scheduling of a disciplinary hearing and its implicit threat of termination constituted an adverse action under the FRSA whistleblower protection law:

Accordingly, we held that a written warning or counseling session is presumptively adverse where: “(a) it is considered discipline by policy or practice, (b) it is routinely used as the first step in a progressive discipline policy, or ( c) it implicitly or expressly references potential discipline.” Noting also that AIR 21 ‘s statutory language contains no express limitation of adverse actions to those actions that might dissuade a reasonable employee, the Board ruled that an adverse action need only be “more than trivial, either as a single event or in combination with other deliberate employer actions alleged.”  Williams v. American Airlines, ARB No. 09-018, AU No. 2007-AIR-004 (ARB Dec. 29, 2010).

.  .  . Nevertheless, as we noted in Vernace v. Port Authority Trans-Hudson Corp., “[w]here termination, discipline, and/or threatened discipline are involved, there is no need to consider the alternative question whether the employment action will dissuade other employees.”

.  . . In this case, Norfolk Southem’s investigation letter did not contain an explicit statement of potential discipline. The potential for discipline is implicit, however, in the May 30, 2013 letter notifying Stallard of a “formal investigation … [in connection with] providing false and/or conflicting statements.” Jt. Stip. 32. The letter notifies Stallard of his right to representation, his right to hear testimony and to call and question witnesses. Jt. Stip. 33. These references to an established disciplinary process further support an inference that the letter contained the potential for discipline. While each case is different, we see no material facts that would distinguish the charge letter in Vernace that we found to be adverse, from the charge letter in this case.

In addition, the DOL ARB has held that a charge letter initiating a disciplinary investigation process is a threat of discipline that qualifies as prohibited discrimination and is thus an actionable adverse action under the FRSA.  Vernace v. Port Authority Trans-Hudson Corp., ARB No. 12-003, ALJ No. 2010-FRS-18, at 2-3 (ARB Dec. 21, 2012).

Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.