Up & Atom


The US Court of Appeals for the Sixth Circuit’s recent favorable decision in Lemon v. Norfolk Southern Railway Corporation, announced its rejection of the chain-of-events theory of causation in whistleblower cases. In doing so, the Sixth Circuit joins the DOL’s Administrative Review Board (ARB) in rejecting this theory of causation. These decisions, while announced in cases brought under the Federal Rail Safety Act (FRSA), will also apply to cases under Section 211 of the Energy Reorganization Act of 1974 (ERA) because it contains the same “contributing factor” causation standard as the FRSA.

For background, in whistleblower cases under statutes containing the “contributing factor” standard, including the ERA, complainants must show, among other things, that a protected activity somehow contributed to an adverse employment action taken against them. But sometimes an alleged protected activity (e.g., filing an accident report) leads to an internal inquiry into the accident or related events that uncovers a performance deficiency or even wrongdoing on the part of the complainant that results in an adverse employment action against the complainant (e.g., a written warning, suspension without pay, or termination). The question then becomes whether the protected activity or the subsequent discovery of wrongdoing was the “contributing factor” in the adverse employment action taken.

In Lemon, the complainant was a railroad employee who hurt his neck. It was unclear whether he injured his neck at home or at work. What was clear was the complainant told his co-workers that he injured his neck at home, later told his employer that he hurt it at work, and also told his employer that he had not discussed his injury with his co-workers when he clearly had. After the company learned he had discussed his injury with his co-workers, he was fired for making false statements. The complainant filed a retaliation claim with the DOL’s Occupational Safety and Health Administration (OSHA), which dismissed his complaint. The complainant then filed an administrative appeal. But while that appeal was pending, he sued in US district court under the FRSA’s “kick-out” provision.

The district court also dismissed the complainant’s claim, which he appealed. On appeal, he argued that, among other things, his injury report was a contributing factor in the railroad’s decision to fire him because, without the injury report, his employer would not have discovered that he lied about speaking with co-workers about where his injury occurred. In other words, the complainant argued that his protected activity started a “chain of events” that led to his employer discovering his wrongdoing, and thus it contributed to his termination. The court rejected this argument for two reasons.

First, the court pointed out that the “chain-of-events” theory of causation, if taken to its logical end, would make any action—no matter how unrelated or trivial—a contributing factor in the employer’s decision. For example, if the complainant had not gone to work that day, he would not have filed an accident report and would not have made the false statement that led to his termination. The court reasoned, however, that finding that the complainant’s going to work was a contributing factor in his termination would be an absurd result.

Second, and more significantly, the court held that the chain-of-events theory of causation would authorize employees to engage in banned behavior so long as it occurred during their protected conduct. The court rejected the idea that protected activity could immunize employees from discipline. And in doing so, the court joined the Seventh, Eighth, and Tenth Circuits, which all found that protected activity does not immunize employees from discipline for wrongdoing, even if the protected activity is part of a larger chain of events that culminates in an adverse employment action.

This is not to say that an employee loses all protections if their protected activity also discloses wrongdoing. But the employee bears the burden of showing that a protected activity, more so than any wrongdoing, was the contributing factor in the adverse action taken against them, and not merely an “initiating event.” As stated above, the Sixth Circuit’s decision fits with a recent ARB decision that also rejected the chain-of-causation theory of causation. In proceedings before the DOL, the chain-of-events theory cannot, by itself, be used to establish causation. It now appears that the courts are shifting away from this theory as well.

For nuclear companies, this decision is instructive as to how the “contributing factor” causation standard will be applied in cases brought under the ERA. Even so, it remains to be seen whether the NRC will apply this standard the same way when evaluating allegations of retaliation under the employee protection provisions administered by the NRC. Although those provisions are promulgated under the ERA, in at least one recent enforcement action, the NRC applied a legal theory very similar to the rejected “chain-of-events” theory rejected by the ARB and multiple US courts of appeals.

We will continue to monitor this area and report on new developments.