Labor & Employment Law Daily Wrap Up, WHISTLEBLOWERS—2d Cir.: Contributing-factor causation standard applies to FRSA whistleblower claims, (Dec 1, 2025)

By Todd Harrison, J.D.

In the wake of Murray v. UBS Securities, LLC, construing the anti-retaliation provision of the Sarbanes-Oxley Act, the Second Circuit found that both the FRSA and SOX incorporate the same causation standard, thus overruling its previous holdings.

Vacating a district court’s grant of summary judgment against a former railroad conductor’s FRSA retaliation claim, the Second Circuit clarified the standards governing an FRSA whistleblower action, concluding that the Supreme Court’s opinion in Murray v. UBS Securities, LLC, 601 U.S. 23 (2024), applied to FRSA whistleblower claims, and under Murray’s “contributing-factor” causation standard, the conductor had proffered sufficient evidence to permit a juror to find that his protected activity contributed to his termination. This result led the court to overrule its holding in Tompkins v. Metro-North Commuter Railroad Co., 983 F.3d 74 (2d Cir. 2020), which required FRSA plaintiffs to show evidence of an employer’s retaliatory intent, animus, or motive. The court also found that a retaliatory hostile work environment is a cognizable action under the FRSA (Ziparo v. CSX Transportation, Inc., No. 23-262 (2d Cir. Nov. 25, 2025)).

As a freight train conductor, the employee in this case was tasked with moving railcars onto designated tracks. He held this position from 2006 until his termination on July 15, 2016.

OBWO system. In or around January 2016, as the volume of work increased for CSX employees, the conductor’s supervisors began ordering the conductor to falsify records in CSX’s on-board work order (OBWO) system. Uncomfortable with falsifying the OBWOs, the conductor refused to do so. In response, the supervisors increased their pressure on the conductor, with one driving nearly two hours to the conductor’s worksite to watch him switch railcars for seven hours a day.

Unsafe work environment. The pressure from the supervisors led the conductor to complain that they were creating an unsafe working environment. On April 13, 2016, one of the supervisors brought a disciplinary charge against the conductor for failure to conduct a handbrake test. The employee contended that the charge was selectively brought against him.

After the handbrake incident, the scrutiny of the conductor intensified, with his supervisors demanding he make a handwritten list of everything he did during a shift and continually berating him for any incomplete OBWOs.

Complaint. Eventually, the actions of the conductor’s supervisors led him to call CSX’s ethics hotline to complain about the falsification requests. Following an investigation, CSX issued a disciplinary letter to one supervisor and a written warning to the other.

Termination. About a month later, on June 9, 2016, a train caused serious damage due to a misaligned track switch. The evidence showed the conductor was the last person to operate the switch. CSX determined the conductor was responsible for the incident and terminated his employment. This outcome was unusual in that only six out of seventeen employees who had been charged with similar rule violations had been terminated.

Lawsuit. A couple of weeks later, the conductor filed a FRSA whistleblower complaint with the DOL, and later brought this action alleging that CSX violated the whistleblower-protection provision of the FRSA by creating a retaliatory hostile work environment and in terminating his employment.

Initially, the district court granted summary judgment in favor of CSX, finding the conductor had not engaged in protected activity. On appeal, the Second Circuit reversed, concluding a reasonable jury could find the conductor engaged in protected activity. On remand, the district court again granted summary judgment to CSX. It first found that the conductor’s protected activity consisted of his twice complaining in early May 2016 about pressure he felt to do something he subjectively believed was unsafe. Thus, the district court did not consider whether the conductor had suffered an adverse employment action prior to May 2016.

As to the conductor’s challenge to his termination, the district court concluded that his protected activity was not a contributing factor to CSX’s decision and, in the alternative, CSX would have taken the adverse action in the absence of the conductor’s protected activity. The conductor again appealed to the Second Circuit.

Murray. After the parties filed their briefs, but before the Second Circuit heard oral arguments, the Supreme Court decided Murray v. UBS Securities, LLC. Upon deciding Murray on remand, the Second Circuit directed the parties to file supplemental briefs to address whether Murray required the court to overrule several of its conclusions in Tompkins v. Metro-North Commuter Railroad Co., which the court now considered.

Contributing factor. Before examining the framework of the conductor’s FRSA claim, the court addressed causation standards and burden-shifting frameworks in whistleblower law. A “contributing factor” causation standard, explained the court, is any factor that, alone or in combination with other factors, contributes in any way to the employer’s decision to undertake an adverse action against an employee. The standard originated in the protections for federal employees in the Whistleblower Protection Act of 1989.

Congress subsequently incorporated this causation standard into a series of similar whistleblower statutes, such as in AIR-21 for the airline industry and SOX for publicly traded companies. The appropriate causation standard often folds into a broader burden-shifting scheme, observed the court, noting that AIR-21 furnishes a plaintiff-friendly, two-step burden shifting framework.

At step one, a plaintiff must establish, by a preponderance of the evidence, that: “(1) the plaintiff engaged in protected activity; (2) the employer knew that the plaintiff engaged in the protected activity; (3) the plaintiff suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable action.” If the plaintiff makes this showing, the burden shifts to the employer, but unlike other burden shifting frameworks, this burden remains with the employer, which must prove by clear and convincing evidence that it would have taken the same action in the absence of the protected activity.

Kickout provision. CSX argued that AIR-21 and its contributing-factor causation standard did not apply to claims brought in federal district court pursuant to the FRSA’s kickout provision, Section 20109(d)(3), but only to the initial administrative proceedings before the DOL. Because the kickout provision is silent on the causation standard, contended CSX, the default but-for causation standard should apply. The court was not moved.

Were the court to adopt this argument, it would be overturning its precedent which aligned with every other federal court of appeals to address the question. Although the kickout provision is silent as to a governing framework, subsections (d)(1) and (d)(2) collectively incorporate AIR-21 into any action brought under Section 20109(d)—including, necessarily, kickout actions under Section 20109(d)(3), explained the court.

Further, continued the court, because Murray construed the same AIR-21 framework and contributing-factor causation standard in the SOX context that applies under the FRSA, its reasoning was binding here with equal force.

Circuit split resolved. Prior to Murray, a circuit split emerged over the plaintiff’s required causation burden in FRSA cases, with the Second Circuit aligning with other circuits in Tompkins, holding that an FRSA plaintiff must “produce evidence of intentional retaliation prompted by the employee engaging in protected activity.” The court went on to hold that a plaintiff must show “more than a temporal connection between the protected conduct and the adverse employment action” to meet their burden.

In Murray, the Second Circuit imported much of its FRSA analysis in Tompkins into the SOX context, creating a circuit split over whether retaliatory intent was an element of a SOX claim. The Supreme Court’s unanimous decision in Murray definitively resolved this split, holding that SOX does not include a retaliatory intent or animus requirement.

After Murray, the Second Circuit explained that it could no longer consider as good law its statements in Tompkins that “some evidence of retaliatory intent is a necessary component of an FRSA claim,” that the statute “necessarily includes some proof of retaliatory motive,” and that “an FRSA plaintiff must produce evidence of intentional retaliation prompted by the employee engaging in protected activity.” Murray clearly held that retaliatory intent is no longer a relevant consideration for a SOX claim subject to AIR-21, said the court, going on to find that Murray’s holding applied equally to an FRSA claim incorporating the same AIR-21 framework as SOX.

Tompkins overruled. Accordingly, the court overruled Tompkins’s holding that a plaintiff must show retaliatory intent, animus, or motive to meet their contributing-factor causation burden. Further, Tompkins’s conclusion as to temporal proximity no longer applied, with the court determining that sufficiently close temporal proximity may satisfy a plaintiff’s contributing-factor causation burden.

Two-step framework. Turning to the conductor’s appeal, the court explained that, based on the above, he was required to make his prima facie case based on the two-step framework established under AIR-21.

Timing. First, the court noted that the timing of the conductor’s protected activity was key to its inquiry, concluding that the district court erred in limiting the protected activity to the two safety-related complaints in early May 2016.

“The FRSA protects both informal and formal complaints,” said the court. Thus, as long as the conductor believed his supervisors’ demands were creating an unsafe environment by increasing his stress level and he had lodged complaints of stressful and distracting conditions, he had engaged in protected activity under the FRSA.

Although the precise timeline for the conductor’s initial protected activities was less than clear, the court found a reasonable juror could find that he had engaged in protected activity beginning no later than April 2016—prior to several allegedly retaliatory actions.

Cognizable adverse action. Because the district court limited the conductor’s protected activity to his complaints in May 2016, it did not consider the possibility that he had experienced a retaliatory hostile work environment before then. Previously, the Second Circuit had not explicitly addressed whether a retaliatory hostile work environment was a cognizable adverse employment action under the FRSA. Here, the court concluded that it was.

In addition, the court found that the broader definition of a retaliatory hostile work environment found in Title VII cases should apply in the FRSA context, as opposed to the more narrow definition established in Title VII discrimination cases.

Applying this standard, the court concluded that a reasonable juror could find that CSX subjected the conductor to actions that might well have dissuaded a reasonable employee from making safety complaints.

Causation. Turning to the last element of the conductor’s prima facie case—that his protected activity was a contributing factor in the retaliatory actions—the court found he had proffered sufficient evidence to withstand summary judgment. Not only was there close temporal proximity, it also appeared the conductor’s supervisors engaged in retaliatory conduct precisely because the conductor refused to falsify OBWO records and complained about the safety effects of his refusal to do so.

Legitimate business reason? Shifting the burden to CSX, it was clear that the conductor had fully complied with CSX policy in correctly marking the OBWOs. Because there was no indication the conductor engaged in misconduct in refusing to falsify the OBWOs, CSX would be hard-pressed at this stage to proffer a legitimate business reason wholly extrinsic to the conductor’s protected activity for its adverse employment actions, explained the court.

Termination claim. As to the conductor’s challenge to his ultimate termination, the court here found that in light of the Supreme Court’s construction of the contributing-factor standard in Murray, the conductor had satisfied his prima facie burden. To meet his burden on summary judgment, the conductor must show that a reasonable juror could find that his protected activity contributed in any way to CSX’s decision to terminate his employment, even if the protected activity only played a small role in the decision.

Here, it was clear that the supervisors acted in an antagonistic manner toward the conductor and were involved in the decision-making process. Further, the close temporal proximity between the protected activity and subsequent termination supported an inference of causation. Finally, the record showed that CSX inconsistently applied its policies in terminating the conductor.

Shifting the burden to CSX, the court found it had failed to demonstrate, by clear and convincing evidence, that it would have terminated the conductor had he not engaged in protected activity. CSX contended that its termination decision was based solely on the switch incident, but the court noted that only six out of seventeen employees who had committed the same or similar violations were terminated, and because CSX took a more severe adverse action against a whistleblower than similarly situated employees, a jury could conclude that it was looking for an excuse to fire the conductor because of his protected activity.

Accordingly, the judgment of the district court was vacated and the case was remanded for further proceedings.

The case is No. 23-262.

Judge: Sack, R.

Attorneys: P. Matthew Darby (Darby Law Group) for Cody Ziparo. Joseph Devine (Baker & Hostetler) for CSX Transportation, Inc.

Companies: CSX Transportation, Inc.

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