GOETSCH: When it comes down to reporting an injury, or knowing you're going to be fired, or your life is going to be made miserable by your manager, people were choosing to remain silent. This had to change. For the last four or five years now, since I read the law, I've kind of taken a personal interest in trying to ensure that the law is applied.
LAW TRIBUNE: You started a website, and a blog about this.
GOETSCH: I have over 500 subscribers to the trainlaw blog, OSHA investigators, attorneys, regulators who use it as a resource for the Federal Rail Safety Act. As a result, I've been getting calls from all over the country from attorneys. I tried the first cases and had the first jury trial with [U.S. District Judge Janet B.] Arterton in New Haven last year. This first court decision [at the circuit level] is part of having a national whistleblower practice. That's what's happened to me. It's kind of evolved in a way I never expected, but because I've been out there on the front lines, people turned to me, clients all over the country.
LAW TRIBUNE: What is really new here?
GOETSCH: There's a body of law that involves whistleblower complaints, with distinctly different standards that apply. Most attorneys are familiar with the U.S. Supreme Court's three-part, burden-shifting process [for employment discrimination, under Title VII of the Civil Rights Act of 1964]. Because [railroad] whistleblower statutes are intended to protect employees, and make it difficult for employers to retaliate, their standards are far more favorable toward the employee than the standard Title VII test. The new appellate ruling makes clear that a very worker-friendly, two-part test applies, not the old three-part test for workplace retaliation.
LAW TRIBUNE: Please outline the differences between the standard three-step test and the railroad industry two-step test.
GOETSCH: In the first step [of the standard test], the plaintiff shows a basic prima facie case of discrimination. The second step, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for what was done. And in the third step, the employee must prove the employer's reason is pretextual — or otherwise invalid. In each of those steps, the burden of proof is by a preponderance of the evidence.
The Federal Railroad Safety Act now has a court decision illustrating its radically different standard. In this case, the trial judge had applied the standard three-part test. That was legal error. In the new railroad whistleblower law, what you have is a two-step process by different burdens of proof.
In the first step, the railroad worker presents a prima facie case of some retaliation for whistle-blowing. That could be by the most circumstantial evidence. You do not have to show a retaliatory motive. You do not have to show even that the protected activity [whistle-blowing, reporting safety flaws] was a substantial cause of the retaliation. All you have to show is that the protected activity was some part of the cause for the retaliation.
LAW TRIBUNE: And what caused you to win this appeal is the second step, the employer's high burden to disprove the plaintiff's case?
