The Administrative Review Board provides further proof of the erroneous use of the phrase “intentional retaliation” in the 8th Circuit’s Kuduk decision. In Riley v. Dakota, Minnesota & Eastern Railroad, the ARB spells out why “intentional retaliation” simply does not apply to the FRSA’s contributing factor standard:
Kuduk and its progeny hold that “the contributory factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” But this pronouncement is both conclusory and contrary to the weight of precedent interpreting the “contributing factor” element of the statutory protections of most whistleblower laws.
In footnote 13, the ARB cites decisions from the 3rd, 5th, 7th, and Federal Circuit Courts contradicting Kuduk, and then explains how Kuduk erroneously substitutes Title VII’s “motivating factor” standard for the FRSA’s “contributing factor” standard. Kuduk does so
without properly accounting for the differences between the “motivating factor” causation standard under Title VII and the “contributing factor” standard under FRSA. We have long held that “retaliatory motive” is not required to show causation under the whistleblower statutes, like FRSA, containing the “contributing factor” standard. . . [The FRSA] is designed to address (and remedy) the effect of retaliation against whistleblowers, not the motivation of the employer. Proof of “retaliatory motive” is not necessary to a determination of causation. Although Kuduk acknowledged that the “contributing factor” under FRSA does not require an employee to “demonstrate the employer’s retaliatory motive,” the court failed to explain why, instead, “intentional retaliation” was required or how “intentional retaliation” differs from “retaliatory motive.”
Because the 8th Circuit itself admits the FRSA does not require the employee to “demonstrate the employer’s retaliatory motive,” the phrase “intentional retaliation” simply refers to the fact that one or more of the managers involved in the adverse action must have had some knowledge of the employee’s protected activity. If in fact none of the managers in the disciplinary chain had any actual or constructive notice of the protected activity, then their adverse action cannot be connected in any way to the protected activity. But this has always been the case: the contributing factor standard does require proof that one or more of the adverse acting managers were aware of the protected activity.
But proving mere awareness of the protected activity is far different from proving a person’s internal motive or intent. Under the FRSA, the employee does not have to prove a manager’s internal motive or intent, only that the manager had some actual or constructive notice of the protected activity before initiating the adverse action. Here is the full text of Riley v. Dakota, Minnesota & Eastern Railroad. For more on the proper reading of Kuduk, see When Context Is Everything. For more on the FRSA, go to the free Rail Whistleblower Library.