By Marjorie Johnson, J.D.
The employee should have known in “this day and age” that wearing a bulletproof vest to work carried a risk of disciplinary action and failed to refute the response as anything other than a normal employer’s response to conduct that created an elevated risk of workplace violence.
An Amtrak employee who was discharged after showing up to work in a bulletproof vest, which he claimed he wore in response to a physical altercation with his supervisor, failed to defeat summary judgment on his claim that his employer violated the whistleblower provisions of the Federal Rail Safety Act by retaliating against him for having reported the safety incident. The evidence undisputedly showed that the employer started investigating him after he wore body armor to work and disciplined him for that decision pursuant to its workplace violence policy, not because he reported the workplace altercation, ruled a federal district court in Pennsylvania (Foura v. National Railroad Passenger Corp., September 16, 2020, Wolson, J.).
Altercation and complaint. The employee worked as a foreman in Amtrak’s maintenance shops. On August 9, 2017, he and a supervisor became involved in a heated argument during which the supervisor allegedly charged at him, knocked him backwards, and wrapped his arms around him and led him to his office. The next day, the employee submitted a workplace violence report to the shop manager. However, no action was taken, and his overtime was cut.
Bulletproof vest. About a week later, on August 16, the employee wore a bulletproof vest to work under his sweatshirt. A coworker who observed the vest feared for his safety and reported the matter to management, who called Amtrak Police. The officers arrived and removed him from the shop floor. He explained that he was wearing the body amour because he didn’t trust his supervisor, but acknowledged no threats had been made since the altercation.
Disciplinary proceedings. The shop manager removed the employee from service that same day at the recommendation of the officers. On September 5, the police issued an investigation notice that charged him with violating the workplace violence policy based on the fact that the bulletproof vest made others feel “threatened, intimidated and distracted, fearing for their safety.”
Appeals termination, files OSHA complaint. A disciplinary hearing was held on November 6. The employee was represented by his union, who argued that he was justified in wearing a bulletproof vest based on the supervisor’s previous behavior. The hearing officer issued a decision letter on November 16 which found that the charges against the employee were proven. A termination letter was issued by a senior manager the next day, which the employee appealed. He also filed an OSHA complaint under the whistleblower provisions of Federal Rail Safety Act.
Reinstated. Amtrak reinstated him in April 2018, but his reinstatement agreement stated that all charges against him were proven and were terminable offenses, and that there were no procedural defects in the disciplinary process. He subsequently filed this lawsuit.
Protected activity. The court first found that the employee’s report to the shop manager regarding the August 9th altercation with his supervisor, which he believed to be a hazardous safety condition, was a protected act under the FRSA. Though the employer argued otherwise, he sufficiently showed that he acted reasonably and in good faith.
Not a contributing factor. However, he failed to establish that his protected activity was a contributing factor in the disciplinary decision. While only seven days separated his report of workplace violence and his being taken out of service, his wearing of a bulletproof vest to work was “a legitimate intervening event” that broke any suggestion of causation that arose from the temporal proximity.
Supervisor didn’t commit same ‘offense.’ He also failed to convince the court that retaliation could be inferred from his employer’s differential treatment of his supervisor in relation to their altercation. Significantly, the reason for the employee’s discipline was not the altercation—it was his wearing of body armor to work. Thus, because the supervisor did not commit a similar offense, he was not a proper comparator.
Antagonism didn’t suggest retaliation. The employee also pointed to evidence that his supervisor was generally antagonistic towards him. However, the alleged antagonism occurred prior to his protected activity and not as a result of it. Moreover, the supervisor was not a decisionmaker, nor were his actions the proximate cause of the employee’s termination.
The employee also argued that the hearing officer found against him at least in part based on the altercation with the supervisor, thereby allowing an inference of causation. However, the protected activity was his reporting of the event to the shop manager, which did not lead to the investigation into his wearing of body armor to work. In addition, the disciplinary hearing focused on whether the vest distracted and instilled fear in his coworkers. Though he discussed the altercation to explain why he wore the body armor, it was not an issue at the hearing.
No pretext. The court also rejected the employee’s attempt to show pretext. Though he claimed that the charges against him were inconsistent with the facts of the case and the punishment was harsh, he did not dispute that he wore body armor to work and that the employer believed that doing so justified termination. He also failed to refute the proffered reason for his termination or offer any evidence suggesting that retaliation was a motivating factor in his termination.
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