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Chain-of-Events Theory of Causation Rejected In Whistleblower Case


Lemon v. Norfolk Southern Railway Company - Sixth Circuit Court of Appeals


Facts:  Daniel Lemon (“Lemon”) worked at Norfolk Southern Railway Company (“Norfolk”).  Lemon hurt his neck, although it is unclear whether it happened at work or at home.  Lemon told his co-workers he hurt it at home but told Norfolk that he hurt it on the job.  Lemon also told Norfolk that he had not discussed the injury with his co-workers.  After Norfolk learned that Lemon had discussed his injury with his co-workers, he was terminated for making false statements.

Lemon proceeded to file a retaliation claim with the Occupation Safety and Health Administration (“OSHA”).  OSHA dismissed the complaint.  Lemon then filed an administrative appeal and while the appeal was pending, also filed suit in district court.  The district court dismissed Lemon’s claim and Lemon appealed.

Holding:  On appeal, Lemon argued his neck injury was a contributing factor in Norfolk’s decision to terminate him as without the injury report, Norfolk would not have learned that Lemon lied about speaking to co-workers.  As a result, Lemon argued a chain-of-events theory of causation led to Norfolk finding out about the wrongdoing and this was a contributing factor to his termination.

The Sixth Circuit Court of Appeals was unswayed, however.  First, if the chain-of-events theory of causation were taken to its logical end, any action would be a contributing factor to an employer’s decision.  (One example given by the Court was if an employee got food poisoning while on a vacation in Alaska, the chain-of-events theory of causation would stipulate that the employer wold be liable for the food poisoning as it gave the employee time off for the vacation.)  Second, the chain-of-events theory of causation would enable employees to engage in banned behavior so long as it occurred during their protected conduct.  Under Lemon’s argument, employees would therefore be immune from discipline.

Judgment:  The Sixth Circuit Court of Appeals upheld the ruling in favor of the employer on the grounds that the terminated employee’s chain-of-events theory of causation would not produce an equitable result in whistleblower cases.

The Takeaway:  I will point out that the Court’s ruling here applies to cases brought under the Federal Rail Safety Act and the Energy Reorganization Act of 1974, in regard to whistleblower complaints.  With that being said, the Court’s ruling is instructive and aligns with similar opinions from the Seventh, Eighth, and Tenth Circuits which have also held that protected activity does not give employees a “free pass” to be immune from discipline for wrongdoing, even when the protected activity is part of a larger gain of events that leads to an adverse employment action, such as Lemons’s termination in this case.

Majority Opinion Judge:  Judge Sutton

Date:  April 30, 2020

Opinion:  https://cases.justia.com/federal/appellate-courts/ca6/19-3906/19-3906-2020-04-30.pdf?ts=1588267881

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