ARB Broadly Interprets Adverse Action Once Again
On November 24, 2015, the ARB adopted an expansive interpretation of what constitutes an adverse action for claims asserted under the Federal Railroad Safety Act of 1982 (FRSA), holding that a reduced performance rating with no compensation-related consequences and a failure to pay medical bills in connection with a work-related accident are actionable. Fricka v. National Railroad Passenger Corp., ARB Case No. 14-047 (Nov. 24, 2015).
Complainant was injured while traveling to perform work-related duties on his personal motorcycle. He reported the accident as work-related, but the Company classified the injuries as not work related and declined to pay his medical expenses. Shortly after he returned to work in 2011, he received a “Needs Development” rating on his annual review, which was lower than the score he received for his mid-year review. Complainant filed a complaint with OSHA, alleging that he was retaliated against after he reported a workplace injury in violation of the FRSA whistleblower-protection provision. OSHA and then an ALJ rejected his claims. The ALJ found that Complainant did not suffer an adverse employment action. Complainant appealed to the ARB.
The ARB’s Decision
The ARB focused on whether the Company’s refusal to pay Complainant’s medical bills and his performance appraisals constituted adverse actions under FRSA. The ARB held that although the definition of an adverse action under Title VII can be a helpful guide, it is not determinative in cases asserting claims under FRSA. Finding that the statutory language of the FRSA was more analogous to that of Sarbanes-Oxley (SOX) than Title VII, the ARB concluded that an adverse action for purposes of FRSA claims included “unfavorable employment actions that are more than trivial, either as a single event or in combination with other deliberate employer actions alleged.” Using this standard, the ARB concluded that the Company’s classification of Complainant’s injury as non-work related was unfavorable and more than trivial, noting that this decision allowed the Company to avoid paying for significant medical bills. The ARB also concluded that the 2011 performance rating constituted an adverse action, holding that a performance review does not need to have a tangible or material impact on salary to be considered adverse.
This is another example of the applying a fairly loose standard of what constitutes an adverse employment action, consistent with cases like those under SOX that apply the frame work under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21). Indeed, this decision shows that conduct that may not be actionable under Title VII suit could potentially give rise to liability under statutes like FRSA and SOX.