Powers v. Union Pacific Railroad Company

Case Updates

Applying its decision in Palmer v. Canadian National Railway, the Board issued a final decision affirming dismissal of the complaint in favor of the defendant.

The Board decided to vacate and reconsider its previous decision due to one of the judge’s ex parte contacts with counsel in the case. The case will be reconsidered without the disqualified judge.

The Board, sitting en banc, reversed the decision below that the complainant failed to prove that protected activity was a contributing factor in an adverse employment action. The Board purported to agree with Fordham v. Fannie Mae that “legitimate, non-retaliatory reasons for employer action . . . may not be weighed against a complainant’s showing of [contributing factor].” However, the decision then “clarifie[d]” that Fordham should not be “read so narrowly” as to “foreclose consideration [at the contributing factor stage] of specific evidence that may otherwise support a respondent’s affirmative defense,” including evidence of the employer’s reasons for its employment actions.

In its brief with the American Trucking Association, the Chamber urged the Department of Labor’s Administrative Review Board (“Board”) to reject the unorthodox evidentiary standard for whistleblower claims that the Board developed in a previous case, Fordham v. Fannie Mae. That standard precludes judges from considering an employer’s evidence of causation in determining whether protected activity was a contributing factor in an alleged adverse employment action. The Chamber, however, argued that this burden of proof cannot be reconciled with the text of the federal whistleblower provisions at issue, as well as settled judicial interpretation of those and similar provisions. Specifically, the Chamber explained that, because a complainant in a whistleblower case must establish that protected conduct was a contributing factor in an adverse employment action by a preponderance of the evidence, that standard—by definition—requires the employer’s evidence to be weighed against the complainant’s.

James E. Gauch and Jacqueline M. Holmes of Jones Day served as co-counsel for the amici.