Labor & Employment Law Daily Wrap Up, RETALIATION—10th Cir.: Fired railroad worker fails to raise jury question on ‘protected activity’ under FRSA, (Jan 2, 2026)

By Nadine E. Roddy, J.D.

The worker was not “refusing to work,” as required by the Act, when he was actually performing a job responsibility at the relevant time.

A discharged train conductor failed to establish a prima facie case of retaliation under the Federal Railroad Safety Act (FRSA), the Tenth Circuit has ruled. His evidence that he was engaged in a “protected activity” when he lined a switch for a train was insufficient to meet the element of “refusing to work” as required by the Act (Berberich v. Kansas City Southern Railway Co., No. 24-3154 (10th Cir. Dec. 22, 2025)).

Throwing the switch. The employee, who had served as a train conductor for many years, brought suit against his former employer for retaliation in violation of the FRSA. The relevant provision of the FRSA prohibits a railroad carrier from discriminating against an employee for engaging in protected activity—namely, “refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties” if, among other things, the hazard presents an imminent danger. The protected activity asserted by the employee was his performance of a procedure for maneuvering train cars in violation of an alleged standing order requiring the train’s engineer to perform that task instead.

The summary judgment evidence showed that in addition to connecting one train car to the next, conductors were responsible for diverting or reorienting train cars when necessary, which they did by “throwing” or “lining” a mechanical device, known as a switch, that guided trains from one track to another. The employee alleged the existence of an unwritten standing order in his railroad yard requiring engineers to perform this task in order to save time, but to do so the engineers had to leave the train’s controls unattended. On one occasion, the employee lined the switch himself to prevent this unsafe situation from arising, but it took him a while because he had been at the back of a long train when he learned that a switch needed to be thrown. His manager was furious about the delay this caused, and the employee was discharged six weeks later.

The district court granted summary judgment for the employer, finding no credible evidence that the general manager had any knowledge of the employee’s alleged protected activity when he decided to fire the employee. The employee timely appealed to the Tenth Circuit.

No protected activity. The Tenth Circuit affirmed the district court’s judgment, but on the alternative ground that the employee had not demonstrated his engagement in a protected activity. The employee’s evidence failed in three independent ways: (1) it did not show the existence of the alleged standing order at the time of the incident, (2) it did not show that the employee “refused to work,” as the statute required, and (3) it did not show that a safety hazard was presented at that time.

No standing order. The court noted that the record contained no evidence of a standing order—at least not in the sense of an order that is always in effect. (Emphasis in original.) Although the employee testified that his supervisor on occasion would order the engineer, rather than the conductor, to line switches, there was no evidence that such an order was “standing.”

No refusal to work. The employee argued that when he lined the switch himself in violation of the alleged standing order, he had been “refusing to work when confronted by a hazardous safety or security condition,” as the statute required. However, because there was no proof of a standing order, the employee actually had been doing his job (i.e., working) when he lined the switch on the day in question. The court declined to interpret “refusing to work” to encompass its exact opposite.

No hazardous condition. Finally, the employee failed to establish that his actions resulted from a confrontation with a hazardous safety condition. The record contained no evidence that on this specific occasion the engineer was about to leave his post to line the switch. Indeed, the employee testified on deposition that the engineer “told [me] on the radio that there was a switch aligned against him and [I] responded and said, well, I’ll be there as soon as I can.”

Therefore, because the employee had not shown that he engaged in a protected activity, he could not establish a prima facie case of retaliation under the FRSA. Summary judgment for the employer was affirmed.

The case is No. 24-3154.

Judge: Hartz, H.

Attorneys: Charles A. Delbridge (Casey Jones Law Firm) for Justin Berberich. Douglas R. Dalgleish (Stinson) for Kansas City Southern Railway Co.

Companies: Kansas City Southern Railway Co.

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