Ziparo v. CSX Transportation
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Opinion
23-262 Ziparo v. CSX Transportation
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT March Term, 2024 (Argued: March 8, 2024 Decided: November 25, 2025) Docket No. 23-262
CODY ZIPARO, Plaintiff–Appellant,
v.
CSX TRANSPORTATION, INC., Defendant–Appellee,
Before: SACK, NARDINI, AND PÉREZ, Circuit Judges. In this “whistleblower” action brought under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109, Plaintiff-Appellant Cody Ziparo appeals from the district court’s grant of summary judgment to Defendant-Appellee CSX Transportation Inc. (“CSX”). In early 2016, two of Ziparo’s supervisors pressured Ziparo to falsely mark tasks as complete in CSX’s internal on-board work order system. Ziparo contends that he engaged in protected activity under the FRSA by reporting that the pressure from his supervisors to falsify this information was creating an unsafe working environment. In response, CSX supervisors threatened to fire Ziparo for insubordination, repeatedly yelled at him, and subjected him to increased scrutiny. In May 2016, Ziparo lodged a formal complaint with CSX. About a month later, in an unrelated incident, Ziparo failed to move a train switch back to its proper place, which could have led to a catastrophic train derailment or collision. CSX then terminated Ziparo’s employment. The district court granted summary judgment to CSX because, it concluded, Ziparo had failed to demonstrate that his protected activity was a No. 23-262 Ziparo v. CSX Transportation
“contributing factor” in his termination and, alternatively, CSX had demonstrated by clear-and-convincing evidence that it would have terminated Ziparo even had he not engaged in protected activity. On appeal, we first clarify the standards governing an FRSA whistleblower action. In Murray v. UBS Securities, LLC, 601 U.S. 23 (2024), the Supreme Court held that a plaintiff need not show that the employer acted with retaliatory intent, animus, or motive to meet the plaintiff’s burden under the “contributing- factor” causation standard, id. at 34–35, and construed the contributing-factor standard as “broad” and “lenient” for plaintiffs, id. at 35, 37. Although Murray construed the anti-retaliation provision of the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A, both the FRSA and SOX incorporate the same causation standard and burden-shifting framework for whistleblower claims, meaning that Murray’s reasoning applies with equal force in FRSA cases. We therefore overrule our holding in Tompkins v. Metro-North Commuter Railroad Co., 983 F.3d 74 (2d Cir. 2020), that an FRSA plaintiff must show evidence of the employer’s retaliatory intent, animus, or motive and that evidence of temporal proximity between the employee’s protected activity and the employer’s adverse employment action is necessarily insufficient to present a genuine factual issue on retaliation, id. at 82. On the merits of Ziparo’s appeal, we conclude that the district court erred in granting CSX’s motion for summary judgment. We first determine that a reasonable juror could find that CSX subjected Ziparo to a retaliatory hostile work environment before Ziparo lodged his formal complaint with CSX in May 2016. We further conclude that disputed issues of material fact preclude summary judgment on Ziparo’s challenge to his termination: Ziparo has proffered sufficient evidence to permit a juror to find that his protected activity contributed to his termination, and, because of evidence that CSX did not consistently terminate employees who made similar errors as Ziparo, CSX has not demonstrated by clear and convincing evidence that it would have fired Ziparo in the absence of his protected activity. We therefore VACATE the district court’s judgment and REMAND for further proceedings consistent with this opinion. P. MATTHEW DARBY, Darby Law Group, LLC, Hunt Valley, MD, for Plaintiff- Appellant Cody Ziparo;
2 No. 23-262 Ziparo v. CSX Transportation
JOSEPH C. DEVINE, Baker & Hostetler, LLP, Columbus, OH (Susan Roney, Nixon Peabody, LLP, Buffalo, NY, on the brief), for Defendant-Appellee CSX Transportation, Inc. SACK, Circuit Judge: For over a decade, Cody Ziparo served as a freight train conductor at CSX
Transportation, Inc. (“CSX”), a large national railroad carrier. In early 2016,
Ziparo’s supervisors began pressuring him to falsify records in CSX’s internal
on-board work order (“OBWO”) system. When Ziparo refused to do so and
complained that the pressure from their falsification requests was creating an
unsafe working environment, those supervisors shouted at him and subjected
him to additional scrutiny. On May 3, 2016, one supervisor threatened to fire
Ziparo for insubordination. The next day, Ziparo filed a formal retaliation
complaint with CSX’s internal ethics department.
About a month later, on June 9, Ziparo made a potentially serious and
apparently unrelated misstep. After using a train switch to shift trains between
tracks, Ziparo failed to return the switch back to its original position. A train
struck the switch, seriously damaging it; had the train been traveling in the
opposite direction, it could have fully derailed. After an investigation and
hearing, CSX terminated Ziparo’s employment.
3 No. 23-262 Ziparo v. CSX Transportation
Ziparo sued CSX under the Federal Railroad Safety Act (“FRSA”), 49
U.S.C. § 20109, in the United States District Court for the Northern District of
New York, alleging that CSX unlawfully retaliated against him by first subjecting
him to a retaliatory hostile work environment and then terminating his
employment. The district court (Suddaby, Judge) granted CSX’s motion for
summary judgment, concluding that Ziparo had not engaged in protected
activity. Ziparo v. CSX Transportation, Inc. (Ziparo I), 443 F. Supp. 3d 276, 302
(N.D.N.Y. 2020). We reversed, however, holding that Ziparo had engaged in
protected activity so long as he had a good faith belief that CSX’s work-order
falsification requests were creating an unsafe working environment. Ziparo v.
CSX Transportation, Inc. (Ziparo II), 15 F.4th 153, 165 (2d Cir. 2021). On remand,
the district court again granted summary judgment for CSX, this time concluding
that Ziparo had not engaged in protected activity before his two complaints in
May 2016, that Ziparo had failed to demonstrate a causal connection between his
protected activity and his ultimate termination, and, alternatively, that CSX was
able to demonstrate by clear-and-convincing evidence that it would have fired
Ziparo in the absence of his protected activity. Ziparo v. CSX Transportation, Inc.
4 No. 23-262 Ziparo v. CSX Transportation
(Ziparo III), No. 17-CV-708, 2023 WL 2424599, at *4–6 (N.D.N.Y. Jan. 31, 2023).
This second appeal followed.
We first clarify the proper standard governing Ziparo’s FRSA claim. To
show causation under the FRSA—that an adverse employment action happened
“because” of legally protected activity—Ziparo must meet the “contributing-
factor causation standard,” meaning that his protected activity must be a factor
that, alone or in combination with other factors, contributed to CSX’s adverse
actions. After the district court issued its decision and the parties filed their
briefs in this appeal, the Supreme Court held in Murray v. UBS Securities, LLC,
601 U.S. 23 (2024), that to demonstrate contributing-factor causation, a
whistleblower-plaintiff need not produce evidence of the employer’s retaliatory
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23-262 Ziparo v. CSX Transportation
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT March Term, 2024 (Argued: March 8, 2024 Decided: November 25, 2025) Docket No. 23-262
CODY ZIPARO, Plaintiff–Appellant,
v.
CSX TRANSPORTATION, INC., Defendant–Appellee,
Before: SACK, NARDINI, AND PÉREZ, Circuit Judges. In this “whistleblower” action brought under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109, Plaintiff-Appellant Cody Ziparo appeals from the district court’s grant of summary judgment to Defendant-Appellee CSX Transportation Inc. (“CSX”). In early 2016, two of Ziparo’s supervisors pressured Ziparo to falsely mark tasks as complete in CSX’s internal on-board work order system. Ziparo contends that he engaged in protected activity under the FRSA by reporting that the pressure from his supervisors to falsify this information was creating an unsafe working environment. In response, CSX supervisors threatened to fire Ziparo for insubordination, repeatedly yelled at him, and subjected him to increased scrutiny. In May 2016, Ziparo lodged a formal complaint with CSX. About a month later, in an unrelated incident, Ziparo failed to move a train switch back to its proper place, which could have led to a catastrophic train derailment or collision. CSX then terminated Ziparo’s employment. The district court granted summary judgment to CSX because, it concluded, Ziparo had failed to demonstrate that his protected activity was a No. 23-262 Ziparo v. CSX Transportation
“contributing factor” in his termination and, alternatively, CSX had demonstrated by clear-and-convincing evidence that it would have terminated Ziparo even had he not engaged in protected activity. On appeal, we first clarify the standards governing an FRSA whistleblower action. In Murray v. UBS Securities, LLC, 601 U.S. 23 (2024), the Supreme Court held that a plaintiff need not show that the employer acted with retaliatory intent, animus, or motive to meet the plaintiff’s burden under the “contributing- factor” causation standard, id. at 34–35, and construed the contributing-factor standard as “broad” and “lenient” for plaintiffs, id. at 35, 37. Although Murray construed the anti-retaliation provision of the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A, both the FRSA and SOX incorporate the same causation standard and burden-shifting framework for whistleblower claims, meaning that Murray’s reasoning applies with equal force in FRSA cases. We therefore overrule our holding in Tompkins v. Metro-North Commuter Railroad Co., 983 F.3d 74 (2d Cir. 2020), that an FRSA plaintiff must show evidence of the employer’s retaliatory intent, animus, or motive and that evidence of temporal proximity between the employee’s protected activity and the employer’s adverse employment action is necessarily insufficient to present a genuine factual issue on retaliation, id. at 82. On the merits of Ziparo’s appeal, we conclude that the district court erred in granting CSX’s motion for summary judgment. We first determine that a reasonable juror could find that CSX subjected Ziparo to a retaliatory hostile work environment before Ziparo lodged his formal complaint with CSX in May 2016. We further conclude that disputed issues of material fact preclude summary judgment on Ziparo’s challenge to his termination: Ziparo has proffered sufficient evidence to permit a juror to find that his protected activity contributed to his termination, and, because of evidence that CSX did not consistently terminate employees who made similar errors as Ziparo, CSX has not demonstrated by clear and convincing evidence that it would have fired Ziparo in the absence of his protected activity. We therefore VACATE the district court’s judgment and REMAND for further proceedings consistent with this opinion. P. MATTHEW DARBY, Darby Law Group, LLC, Hunt Valley, MD, for Plaintiff- Appellant Cody Ziparo;
2 No. 23-262 Ziparo v. CSX Transportation
JOSEPH C. DEVINE, Baker & Hostetler, LLP, Columbus, OH (Susan Roney, Nixon Peabody, LLP, Buffalo, NY, on the brief), for Defendant-Appellee CSX Transportation, Inc. SACK, Circuit Judge: For over a decade, Cody Ziparo served as a freight train conductor at CSX
Transportation, Inc. (“CSX”), a large national railroad carrier. In early 2016,
Ziparo’s supervisors began pressuring him to falsify records in CSX’s internal
on-board work order (“OBWO”) system. When Ziparo refused to do so and
complained that the pressure from their falsification requests was creating an
unsafe working environment, those supervisors shouted at him and subjected
him to additional scrutiny. On May 3, 2016, one supervisor threatened to fire
Ziparo for insubordination. The next day, Ziparo filed a formal retaliation
complaint with CSX’s internal ethics department.
About a month later, on June 9, Ziparo made a potentially serious and
apparently unrelated misstep. After using a train switch to shift trains between
tracks, Ziparo failed to return the switch back to its original position. A train
struck the switch, seriously damaging it; had the train been traveling in the
opposite direction, it could have fully derailed. After an investigation and
hearing, CSX terminated Ziparo’s employment.
3 No. 23-262 Ziparo v. CSX Transportation
Ziparo sued CSX under the Federal Railroad Safety Act (“FRSA”), 49
U.S.C. § 20109, in the United States District Court for the Northern District of
New York, alleging that CSX unlawfully retaliated against him by first subjecting
him to a retaliatory hostile work environment and then terminating his
employment. The district court (Suddaby, Judge) granted CSX’s motion for
summary judgment, concluding that Ziparo had not engaged in protected
activity. Ziparo v. CSX Transportation, Inc. (Ziparo I), 443 F. Supp. 3d 276, 302
(N.D.N.Y. 2020). We reversed, however, holding that Ziparo had engaged in
protected activity so long as he had a good faith belief that CSX’s work-order
falsification requests were creating an unsafe working environment. Ziparo v.
CSX Transportation, Inc. (Ziparo II), 15 F.4th 153, 165 (2d Cir. 2021). On remand,
the district court again granted summary judgment for CSX, this time concluding
that Ziparo had not engaged in protected activity before his two complaints in
May 2016, that Ziparo had failed to demonstrate a causal connection between his
protected activity and his ultimate termination, and, alternatively, that CSX was
able to demonstrate by clear-and-convincing evidence that it would have fired
Ziparo in the absence of his protected activity. Ziparo v. CSX Transportation, Inc.
4 No. 23-262 Ziparo v. CSX Transportation
(Ziparo III), No. 17-CV-708, 2023 WL 2424599, at *4–6 (N.D.N.Y. Jan. 31, 2023).
This second appeal followed.
We first clarify the proper standard governing Ziparo’s FRSA claim. To
show causation under the FRSA—that an adverse employment action happened
“because” of legally protected activity—Ziparo must meet the “contributing-
factor causation standard,” meaning that his protected activity must be a factor
that, alone or in combination with other factors, contributed to CSX’s adverse
actions. After the district court issued its decision and the parties filed their
briefs in this appeal, the Supreme Court held in Murray v. UBS Securities, LLC,
601 U.S. 23 (2024), that to demonstrate contributing-factor causation, a
whistleblower-plaintiff need not produce evidence of the employer’s retaliatory
intent, animus, or motive, id. at 34–35. Murray examined a whistleblower claim
under the provision of the Sarbanes-Oxley Act of 2002 (“SOX”) that prohibits
retaliation at publicly traded companies, 18 U.S.C. § 1514A; because both the
FRSA and SOX incorporate the same burden-shifting framework and
contributing factor causation standard (the “AIR-21” burden-shifting
5 No. 23-262 Ziparo v. CSX Transportation
framework), 1 Murray’s reasoning binds us here with equal force. We therefore
conclude that Murray requires us to overrule several of our conclusions about the
FRSA’s contributing-factor causation standard elaborated in Tompkins v. Metro-
North Commuter Railroad Co., 983 F.3d 74 (2d Cir. 2020).
In Tompkins, we held that to meet the contributing-factor standard, an
FRSA plaintiff must show “some proof of retaliatory motive” and “evidence of
intentional retaliation.” 2 Id. at 82. We further stated that evidence of temporal
proximity—the closeness in time between an employee’s protected activity and
the employer’s adverse action—was necessarily insufficient to meet this burden.
Id. In light of Murray, we now recognize that an employee need not demonstrate
an employer’s retaliatory motive, intent, or animus to meet their causation
burden. Instead, an employee must only demonstrate, by a preponderance of the
evidence, that their protected activity “contributed” to the employer’s adverse
employment action. See 49 U.S.C. § 20109(d)(2) (FRSA provision incorporating
AIR-21); id. § 42121(b)(2)(B)(i) (AIR-21 provision stating that an employee must
1The framework takes its name from the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR-21”), 49 U.S.C. § 42121, which protects airline- industry employees from retaliation.
2Unless otherwise indicated, we omit all internal quotation marks, alteration marks, emphases, footnotes, and citations when quoting cases. 6 No. 23-262 Ziparo v. CSX Transportation
show that their protected activity “was a contributing factor in the unfavorable
personnel action”). And an employee may do that with circumstantial evidence,
including sufficiently close temporal proximity alone.
On the merits of Ziparo’s appeal, we first determine that a reasonable juror
could find that CSX subjected Ziparo to a retaliatory work environment before
Ziparo lodged his formal ethics complaint. In reaching that conclusion, we
decide that a retaliatory hostile work environment is a cognizable adverse
employment action under the FRSA. As to Ziparo’s challenge to his termination,
the district court erred in granting CSX summary judgment. Under the “lenient”
and “broad” contributing-factor causation standard articulated in Murray, 601
U.S. at 35, 37, we conclude that there are material factual disputes over whether
Ziparo’s protected activity contributed to his termination. Moreover, because of
evidence that CSX did not terminate most employees who made similar errors to
Ziparo’s, a jury, rather than a court, must determine whether CSX has met its
burden of demonstrating by clear-and-convincing evidence that it would have
terminated Ziparo in the absence of his protected activity.
7 No. 23-262 Ziparo v. CSX Transportation
We therefore VACATE the district court’s order granting CSX’s motion for
summary judgment and REMAND the matter for further proceedings consistent
with this opinion.
BACKGROUND I. Factual Background We draw the following statement of facts from the evidence in the
summary-judgment record, which we construe in the light most favorable to the
non-movant, Ziparo. See Cortez v. Forster & Garbus, LLP, 999 F.3d 151, 153–54 (2d
Cir. 2021). “To the extent that this opinion references facts contained in the
sealed record, those portions of the record are unsealed.” Ziparo II, 15 F.4th at
156.
Ziparo worked as a freight train conductor at CSX—one of the largest
national providers of freight rail transportation—from 2006 until his termination
on July 15, 2016. In that role, Ziparo was responsible for moving railcars onto
their designated tracks. To do so, a conductor uses a lever to move the mainline
rail switch; after a conductor switches a loaded railcar or removes an empty one,
he returns the switch to its normal position and locks it. During the relevant
time, Ziparo worked in Watertown, New York, under the supervision of
trainmasters Ryan Van Blarcom and Jim Lacy and alongside engineer
8 No. 23-262 Ziparo v. CSX Transportation
Christopher Pigula. Lacy worked primarily in Watertown and Van Blarcom in
Massena, New York.
In or around January 2016, as the volume of work increased for CSX
employees, Van Blarcom and Lacy began ordering Ziparo to falsify records in
CSX’s OBWO system. Conductors like Ziparo are supposed to use CSX’s OBWO
system to record tasks, such as the placement of railcars, as they complete them.
The OBWO system is not mandated by federal law, nor does it perform any
safety-related purpose, but it provides valuable information to both CSX’s
customers as to the progress of orders and CSX itself as to the productivity of its
employees. Ziparo II, 15 F.4th at 156–57. Because trainmasters are responsible for
overseeing the work of conductors and other lower-level employees, they—but
not conductors—receive bonuses tied to meeting performance goals measured by
OBWO metrics. It is undisputed that Van Blarcom and Lacy pressured Ziparo
and another conductor to inflate their performance metrics so that Van Blarcom
and Lacy could win higher bonuses. Id. at 157. According to both Ziparo and
Pigula, Van Blarcom pressured Ziparo to falsify the OBWOs on a near daily
basis. See Joint App’x 549, 621.
9 No. 23-262 Ziparo v. CSX Transportation
Uncomfortable with falsifying the OBWOs, Ziparo refused to do so. In
response, Van Blarcom and Lacy increased the pressure on Ziparo to falsify the
OBWOs. Pigula recalled that shortly before April 2016, Van Blarcom began
scrutinizing Ziparo and his work, including by driving an hour and forty-five
minutes from Massena to Watertown to watch Ziparo switch railcars for almost
seven hours a day—which Pigula characterized as an “unusual” occurrence. 3 Id.
at 1318–19. According to Ziparo, the falsification demands and pressure were
“taking a toll on [him]” and interfered with his job performance. Id. at 1291–92.
Worried that he would “los[e] [his] job for doing the right thing,” and shaking
from the stress, Ziparo lost focus; communication between Ziparo and his
coworkers also frayed. Id.; see id. at 1307 (Pigula testifying that Ziparo “would
just absent-mindedly walk past things or fail to complete a routine task” in
response to the pressure from his supervisors).
Both Ziparo and Pigula repeatedly complained to Van Blarcom and Lacy
that their demands and scrutiny were creating an unsafe working environment.
3 There is conflicting testimony on when Van Blarcom began driving to Watertown to scrutinize Ziparo’s work. Contrast Joint App’x 549–50 (Ziparo testifying that “the hand brake [charge on April 13, 2016] was the start of it . . . . [A]fter that, [Van Blarcom] would watch us”) with id. at 1318 (Pigula testifying that Van Blarcom began driving to Watertown before April 13, 2016). We discuss the handbrake incident on April 13, 2016, further below. 10 No. 23-262 Ziparo v. CSX Transportation
Ziparo recalled telling Van Blarcom and Lacy “multiple times that the
environment that they’re creating is unsafe.” Id. at 1291–93. According to
Pigula, Ziparo and he complained to Lacy “[o]n a daily basis, at least three days a
week” that the falsification requests were “going to be a safety issue.” Id. at
1308–09; see also id. at 764 (Van Blarcom testifying at deposition that Ziparo had
told him he had issues with falsifying OBWOs before April 13, 2016).
On April 13, 2016, Van Blarcom brought a disciplinary charge against
Ziparo for failure to apply a “handbrake test” on railcars when separating them
from other cars on the train. According to Ziparo’s and Pigula’s deposition
testimony, Van Blarcom selectively brought this charge against Ziparo. See, e.g.,
id. at 1285–87 (Ziparo contending that a handbrake test was unnecessary when a
conductor is in the vicinity of the switching operations); id. at 1314, 1322–23
(Pigula testifying that the “general expectation” was to not perform a handbrake
test and that Van Blarcom had not always disciplined employees for failing to
perform the handbrake test; Van Blarcom appeared “happy” that he had caught
Ziparo not performing the test). Lacy, who testified that he was unaware of
other handbrake-related charges against employees, id. at 826, filed a declaration
in this litigation stating that Van Blarcom told him that “when [Van Blarcom]
11 No. 23-262 Ziparo v. CSX Transportation
wanted to eliminate an employee, he would watch that employee,” id. 848 ¶ 22.
If an employee committed a rules violation, Lacy continued, Van Blarcom would
not confront the employee immediately, allowing him to “witness as severe and
as many rule violations as possible[] so as to increase the disciplinary charges
against the employee”—a practice against CSX policy. Id. Ziparo ultimately
decided to accept responsibility for the violation so as not to receive any
punishment. Id. at 1284.
After the handbrake incident on April 13, the scrutiny escalated.
According to Ziparo, Van Blarcom demanded that Ziparo make a handwritten
list of everything he did “from start to finish” for a two-and-a-half week period.
Id. at 551; see id. at 1289, 1304–05. Then, each morning for “about an hour,” Van
Blarcom called Ziparo to “ream” and “chew” him out for any incomplete
OBWOs, leaving Ziparo “shaking answering the phone” and “stressed to the
max, anxiety[-]ridden.” Id. at 552. Van Blarcom probed Ziparo on the tasks that
Ziparo had completed and recorded in the handwritten list.
On April 29, 2016, Ziparo and his coworkers worked through their lunches
and breaks to finish an important task for a customer but were unable to finish
12 No. 23-262 Ziparo v. CSX Transportation
the rest of their work within their hours of service. 4 Van Blarcom and Lacy
nonetheless instructed Ziparo to mark the remaining work as complete “to
conceal operational failures.” Id. at 1390 (CSX’s investigation). But Ziparo
refused, instead (correctly) marking the remaining work as “out of time” to
reflect the fact that he could not complete all planned tasks during his shift. Id. at
1392.
On May 3, 2016, Lacy called Ziparo into his office, began “screaming and
yelling at [Ziparo],” and told him that Van Blarcom wanted to fire him for
insubordination. Id. at 555–56; see id. at 797, 812. According to Lacy, Van
Blarcom had directed him to tell Ziparo he would be charged with
insubordination if he did not follow Van Blarcom’s instructions. Ziparo
responded that he had “no other choice” because he was “not going to lie” by
falsifying the OBWOs. Id. at 556. Ziparo again warned Lacy that he thought that
these requests were creating a safety issue by causing him undue stress. Id. at
224 (Lacy’s testimony). During that meeting, Lacy called another manager, who
explained that Ziparo had correctly marked the work order as incomplete. A
4 As CSX’s internal investigation noted, “[i]n accordance with federal law, train crews are limited to a specific amount of time that they can work continuously.” Joint App’x 1390. 13 No. 23-262 Ziparo v. CSX Transportation
subsequent internal CSX investigation confirmed that “Lacy was in fact going to
file an assessment on Ziparo for insubordination[] because he did not follow
[Lacy’s] instructions [to] falsify OBWO records.” Id. at 1392.
This incident was, according to Ziparo, the “last straw.” Id. at 1282. The
next day, both Ziparo and Pigula called CSX’s ethics hotline to complain about
the falsification requests. According to CSX’s summary of the call, Ziparo
conveyed to the ethics hotline his belief that the OBWO falsifications requests
created a “safety issue because employees are not focused on their work and are
preoccupied with the harassment coming from Jim [Lacy] and Ryan [Van
Blarcom].” Id. at 1382. After interviewing Ziparo, “another conductor,” Van
Blarcom, and Lacy in connection with their investigation, CSX officials
substantiated Ziparo’s complaints that Van Blarcom and Lacy instructed Ziparo
to falsify the OBWOs and that Lacy threatened to charge Ziparo with
insubordination. Id. at 1388–92. CSX issued a disciplinary letter to Lacy and a
written warning to Van Blarcom.
About a month later, on June 9, 2016, a southbound train caused serious
damage to a misaligned track switch. Had a northbound train run over the
misaligned switch, it might have been diverted off the main track and caused
14 No. 23-262 Ziparo v. CSX Transportation
significant damage, including possible injury and death to persons nearby.
When this case was before us on an earlier appeal, we explained that “CSX’s
reports show that Ziparo was the last person to operate the switch before the
incident and that he failed to return the switch to the proper position after doing
so,” and there is “no evidence in the record that anyone else operated the switch
at any point between when Ziparo did so and when the accident occurred, nor is
there any evidence of tampering” by anyone else. Ziparo II, 15 F.4th at 157.
CSX investigated the matter, concluded that Ziparo was responsible for
failing to return the mainline switch to its normal position, and suspended his
conductor certification. On June 16, the company held an investigative hearing,
where a union representative appeared for Ziparo and could cross-examine
CSX’s witnesses and call witnesses in his defense. Van Blarcom served as the
charging officer presenting evidence against Ziparo, while Brian Murray served
as the hearing officer. On July 15, Murray concluded that Ziparo was responsible
for the incident, id.; that same day, Bill Setser, the Division Manager of CSX’s
Albany Division, fired Ziparo, Joint App’x 1130. This outcome was relatively
unusual: Only six out of seventeen employees who had been charged with
similar rule violations had been terminated. See Ziparo I, 443 F. Supp. 3d at 290.
15 No. 23-262 Ziparo v. CSX Transportation
II. Procedural History A couple of weeks later, on August 2, 2016, Ziparo filed an FRSA
whistleblower complaint with the U.S. Department of Labor (“DOL”). On June
29, 2017, after the DOL failed to render a final decision within 210 days, he sued
CSX in the Northern District of New York. Ziparo alleged that CSX had violated
the whistleblower-protection provision of the FRSA, 49 U.S.C. § 20109, by
creating a retaliatory hostile work environment and, ultimately, by terminating
his employment.
On March 9, 2020, the district court granted summary judgment for CSX,
concluding that Ziparo had not engaged in protected activity. See Ziparo I, 443 F.
Supp. 3d at 302. Determining that the FRSA’s protected-activity requirement
under § 20109(b)(1)(A) contained both objective and subjective reasonableness
components, the court concluded that no reasonable jury could find it objectively
reasonable for Ziparo to have believed that his own stress and distraction
amounted to a “hazardous safety or security condition.” Id. at 296–300.
On appeal, we reversed, concluding that a reasonable jury could find that
Ziparo had engaged in protected activity. See Ziparo II, 15 F.4th at 165. Rejecting
the district court’s understanding that the FRSA includes an objective component,
16 No. 23-262 Ziparo v. CSX Transportation
we held that an employee engages in protected activity under the FRSA when he
reports a condition that he subjectively believes raises safety concerns, so long as
that belief is in good faith. Id. at 163–65. Thus, to the extent that Ziparo reported
in good faith that the falsification requests were creating an unsafe working
environment, Ziparo engaged in protected activity under the FRSA. Id. at 165–
66. We declined CSX’s invitation to affirm the district court’s judgment on the
alternative basis that “no reasonable jury could find that Ziparo was fired in part
for his reports about Lacy and Van Blarcom rather than solely because of his
negligence in failing to properly reset a switch” because the district court had not
addressed this argument. Id. at 166.
On remand, the district court granted summary judgment to CSX for a
second time. See Ziparo III, 2023 WL 2424599, at *7. The district court first found
that Ziparo’s protected activity consisted of “his twice complaining in good faith
in early May 2016 about pressure he felt to do something that he subjectively
believed to be a ‘hazardous safety or security condition’ (i.e., falsifying his
OBWO)” and therefore did not consider whether Ziparo suffered an adverse
employment action before May 2016. Id. at *4. As to Ziparo’s challenge to his
ultimate termination, the court concluded that Ziparo’s protected activity, i.e.,
17 No. 23-262 Ziparo v. CSX Transportation
reporting the stress from the falsification requests, was not a contributing factor
in his termination, id. at *5, and, in the alternative, that CSX “has demonstrated,
by clear and convincing evidence, that it would have taken the unfavorable
personnel action against Plaintiff in the absence of the protected activity,” id. at
*6. Ziparo timely appealed. 5
After the parties filed their briefs, but before we heard oral argument on
March 8, 2024, the Supreme Court issued its decision in Murray, 601 U.S. 23.
After we decided Murray on remand, 6 Murray v. UBS Sec., LLC, 128 F.4th 363 (2d
Cir. 2025), we directed the parties to file supplemental letter briefs to address
whether Murray required us to overrule several of our conclusions in Tompkins.
5 Ziparo argued in his brief that the district court erred in excluding the trial testimony of Ziparo’s expert witness, see Appellant’s Br. at 57–58, but at oral argument, he stated that he was abandoning this argument, see Oral Audio Recording, Ziparo v. CSX Transportation, Inc., No. 23-262, at 21:53–23:30.
6 On remand, we again vacated the district court’s judgment entered on jury verdict finding the defendant-employer liable, this time concluding that the jury instructions impermissibly expanded the definition of a “contributing factor” and therefore the defendant’s liability “beyond what the statute allows.” Murray, 128 F.4th at 366. 18 No. 23-262 Ziparo v. CSX Transportation
DISCUSSION I. Applicable Law A. Standard of Review We review a district court’s grant of summary judgment de novo. Jeffreys
v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). On CSX’s motion for
summary judgment, we construe the evidence in the light most favorable to
Ziparo, drawing all reasonable inferences in his favor. Niagara Mohawk Power
Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003). Only when “there is no
genuine dispute as to any material fact” is “the movant [] entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A court’s role in deciding a motion for
summary judgment “is to identify factual issues, not to resolve them.” Jasco
Tools, Inc. v. Dana Corp. (In re Dana Corp.), 574 F.3d 129, 156 (2d Cir. 2009).
B. The Federal Railroad Safety Act (“FRSA”) The FRSA’s stated purpose is “to promote safety in every area of railroad
operations.” 49 U.S.C. § 20101. Congress first enacted the statute in 1970, see
Federal Railroad Safety Act of 1970, Pub. L. No. 91-458, 84 Stat. 971, et seq. (1970),
and amended it in 1980 to prohibit retaliation against employees, see Federal
Railroad Safety Authorization Act of 1980, Pub. L. No. 96-423, § 10, 94 Stat. 1811,
1815 (1980). However, the 1980 amendments channeled retaliation complaints
through mandatory dispute resolution pursuant to the Railway Labor Act, 45 19 No. 23-262 Ziparo v. CSX Transportation
U.S.C. § 151 et seq. See Araujo v. N.J. Transit Rail Ops., Inc., 708 F.3d 152, 156 (3d
Cir. 2013) (discussing statutory history). In 2007, in an attempt to enhance
“administrative and civil remedies for employees” and the “oversight measures
that improve transparency and accountability of the railroad carriers,” and to
“ensure that employees can report their concerns without the fear of possible
retaliation or discrimination from employers,” H. R. Rep. No. 110–259 at 348
(2007) (Conf. Rep.), as reprinted in 2007 U.S.C.C.A.N. 119, 181, Congress amended
the antiretaliation provision, “expanding the scope of [its] protections and
providing enforcement authority with the Department of Labor,” Araujo, 708
F.3d at 156. The provisions of the FRSA relevant to this appeal are substantially
the same as they were under the 2007 amendments.
The FRSA’s antiretaliation provision protects from retaliation three broad
categories of employee activity, § 20109(a)–(c). The provision under which
Ziparo brought his claim states that “[a] railroad carrier . . . shall not discharge,
demote, suspend, reprimand, or in any other way discriminate against an
employee for . . . reporting, in good faith, a hazardous safety or security
condition.” 49 U.S.C. § 20109(b)(1)(A). Section 20109(d)—a provision that we
20 No. 23-262 Ziparo v. CSX Transportation
examine further below—provides the framework for FRSA “[e]nforcement
actions.”
Procedurally, an employee must first file their whistleblower complaint
with the DOL’s Occupational Safety and Health Administration (“OSHA”). See
49 U.S.C. § 20109(d)(1); 29 C.F.R. § 1982.104. If the employee states a prima facie
case of retaliation, the OSHA Assistant Secretary will investigate and, “if there is
reasonable cause to believe that a violation has occurred, issue a preliminary
order granting relief.” Norfolk S. Ry. Co. v. Solis, 915 F. Supp. 2d 32, 38 (D.D.C.
2013). The railroad or employee may file objections before an Administrative
Law Judge (“ALJ”), whose decisions and recommendations are reviewed by the
DOL’s Administrative Review Board (“ARB”). Id. The ARB’s final order is then
subject to judicial review in a United States Court of Appeals. 49 U.S.C.
§ 20109(d)(4). If, however, the DOL has failed to issue a final decision within 210
days of the filing of an administrative complaint, and the delay is not due to the
bad faith of the employee, the employee may bring an action in federal district
court for “de novo review” of the complaint under the so-called “kickout”
provision. Id. § 20109(d)(3).
21 No. 23-262 Ziparo v. CSX Transportation
C. Burden-Shifting Frameworks and Causation Standards in Whistleblower Law Before examining the precise framework governing Ziparo’s FRSA claim,
we provide background on causation standards and burden-shifting frameworks
in whistleblower law. Because distinct burdens vary by statute, we must
carefully delineate and apply the proper standard in this appeal.
In employment and whistleblower law, a plaintiff must meet a causation
standard that dictates the link that the plaintiff must show between their
protected activity and the adverse employment action that they suffered—e.g.,
that an employer fired them because of their whistleblowing. But not all
causation standards are created equal.
Most familiar from blackletter tort law is the “ancient and simple ‘but for’
common law causation test” that, “but for the defendant’s unlawful conduct, [the
plaintiff’s] alleged injury would not have occurred.” Comcast Corp. v. Nat’l Ass’n
of Afr. Am.-Owned Media, 589 U.S. 327, 331–32 (2020). This causation standard,
the Supreme Court has held, is the “’default’ or ‘background’ rule against which
Congress is normally presumed to have legislated when creating its own new
causes of action,” id. at 332, and applies to various employment and
antidiscrimination statutes, see, e.g., id. at 333 (holding that plaintiffs bringing 42
22 No. 23-262 Ziparo v. CSX Transportation
U.S.C. § 1981 claims alleging racial discrimination in contracts must show but-for
causation); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346–47 (2013) (Title
VII retaliation claims); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176–77 (2009)
(Age Discrimination in Employment Act of 1967). Of course, but-for causation
can be “a sweeping standard” because “[o]ften, events have multiple but-for
causes.” Bostock v. Clayton Cnty., 590 U.S. 644, 656 (2020).
But-for causation does not hold a monopoly on causation, though; by
statute, Congress often supplies alternative standards. Some statutes employ a
heightened causation burden, requiring, for instance, that a cause must be the
“sole” or “primary” cause. See id. at 656–57 (citing statutes). Other statutes
impose a lessened burden on plaintiffs: Title VII discrimination claims, for
example, require a plaintiff to show that a protected trait was “a ‘motivating
factor’ in a defendant’s challenged employment practice,” a “more forgiving
standard” for plaintiffs since liability can follow even if the trait was not a but-for
cause of the discrimination. Bostock, 590 U.S. at 657 (quoting 42 U.S.C. § 2000e–
2(m); see Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015)
(framing the “motivating factor” test as whether the adverse action “was
motivated at least in part by an impermissible reason”); see also Gilead Cmty. Serv.,
23 No. 23-262 Ziparo v. CSX Transportation
Inc. v. Town of Cromwell, 112 F.4th 93, 99 (2d Cir. 2024) (applying the motivating
factor standard to certain discrimination claims brought under the federal Fair
Housing Act). And relevant for our purposes, a family of federal whistleblower
statutes employ the even more plaintiff-friendly “contributing-factor” causation
standard.
A “contributing factor” is any factor that, alone or in combination with
other factors, contributes in any way to the employer’s decision to undertake an
adverse employment action against the employee.7 Araujo, 708 F.3d at 158. It is
not enough for the factor to be the “sort of behavior that would tend to affect a
termination decision.” Murray, 128 F.4th at 369. Instead, the factor must have
“an actual effect that helps bring about a result.” Id. at 372. The standard originates
in the protections for federal employees in the Whistleblower Protection Act of
1989, 5 U.S.C. § 1221(e), and was intended to overrule caselaw requiring a
7 The definition of a “contributing factor” adopted by our sister circuits was “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” Araujo, 708 F.3d at 158 (emphasis added); see Murray, 128 F.4th at 371 n.3 (collecting cases). We note that on remand in Murray, the panel majority held that this language in a jury instruction was erroneous and not “readily understood by laymen” because the causation standard “requires an actual effect that helps bring about a result.” 128 F.4th at 371. The Murray Court did, however, suggest that this language might be proper for “use by judges,” albeit not in jury instructions. Id.
24 No. 23-262 Ziparo v. CSX Transportation
whistleblower to show that “his protected conduct was a ‘significant,’
‘motivating,’ ‘substantial,’ or ‘predominant’ factor in a personnel action . . . .”
Marano v. Dep’t of Just., 2 F.3d 1137, 1140 (Fed. Cir. 1993) (quoting 135 Cong. Rec.
5033 (1989)). This plaintiff-friendly causation burden, as the Supreme Court
explained, expresses Congress’s policy judgment that “personnel actions against
employees should quite simply not be based on protected whistleblowing
activities—not even a little bit.” Murray, 601 U.S. at 36–37. Congress
subsequently incorporated this causation standard into “a series of similar
whistleblower statutes that protect non-civil-service employees in industries
where whistleblowing plays an especially important role in protecting the public
welfare,” such as in AIR-21 for the airline industry and SOX for publicly traded
companies. Id. at 28.
The appropriate causation standard often folds into a broader burden-
shifting scheme. Burden-shifting frameworks are used “to facilitate the orderly
consideration of relevant evidence” and “progressively [] sharpen the inquiry
into the elusive factual question of intentional discrimination.” Id. at 35–36.
“Because discriminatory intent is difficult to prove, and because employers
control most of the cards, burden shifting plays the necessary role of forcing the
25 No. 23-262 Ziparo v. CSX Transportation
defendant to come forward with some response to the employee’s circumstantial
evidence.” Id. at 36.
AIR-21 furnishes a plaintiff-friendly, two-step burden-shifting framework.
At step one, 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.” Ziparo II, 15 F.4th at 158. Importantly, the
plaintiff’s causation burden is the more plaintiff-friendly contributing-factor
standard. 49 U.S.C. § 42121(b)(2)(B)(i). If the plaintiff makes this showing at step
one, the burden then shifts to the employer. Id. § 42121(b)(2)(B)(ii). Unlike other
frameworks, however, the ultimate burden does not then shift back to the
plaintiff under AIR-21—it remains with the employer. 8 At the second and final
8 Perhaps the most familiar burden-shifting framework is the three-step burden- shifting framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At step one under McDonnell Douglas, the plaintiff must establish a prima facie case of discrimination or retaliation, including the required causal link between the protected activity or trait and the adverse employment action; at step two, the burden shifts to the employer to articulate a legitimate, non-discriminatory or non-retaliatory reason for its policy and action; and at step three, the burden shifts back to the plaintiff to show, by a preponderance of the evidence, that the employer’s justification is a pretext for discrimination or retaliation. See, e.g., Lenzi v. Systemax, Inc., 944 F.3d 97, 107–08 (2d Cir.
26 No. 23-262 Ziparo v. CSX Transportation
step of AIR-21, the employer’s burden is not merely to articulate some legitimate
business reason for the employment action, but to prove, by clear and convincing
evidence, “that the employer would have taken the same unfavorable personnel
action in the absence of that behavior.” 49 U.S.C. § 42121(b)(2)(B)(ii). As “the
intermediate burden of proof, in between a preponderance of the evidence and
proof beyond a reasonable doubt,” Araujo, 708 F.3d at 159 (citing Addington v.
Texas, 441 U.S. 418, 425 (1979), the clear-and-convincing standard requires the
employer to show that “the truth of its factual contentions are highly probable,”
id. (quoting Colorado v. New Mexico, 467 U.S. 310, 316 (1984)).
Woven together, the contributing-factor standard and the AIR-21 burden-
shifting framework are doubly protective of plaintiff-employees compared to
other statutes: The causation burden on the plaintiff is lower at step one, while
the burden on the employer is higher at step two. The AIR-21 scheme, the
Supreme Court has instructed, “is meant to be more lenient [for plaintiffs] than
most.” Murray, 601 U.S. at 35; see also Araujo, 708 F.3d at 159–60 (stating that
2019). McDonnell Douglas applies to many Title VII discrimination and retaliation claims, Lenzi, 944 F.3d at 112, but the causation burden differs under each, contrast 42 U.S.C. § 2000e–2(m) (Title VII’s antidiscrimination provision’s “motivating factor” standard) with Nassar, 570 U.S. at 346–47 (holding that but-for causation applies to Title VII retaliation claims). 27 No. 23-262 Ziparo v. CSX Transportation
AIR-21 is “protective of plaintiff-employees” and “much easier for a plaintiff to
satisfy than the McDonnell Douglas standard”).
D. Whether the FRSA Incorporates AIR-21 into Kickout Claims CSX first contends that AIR-21 and its contributing-factor causation
standard do not apply to claims brought in federal district court pursuant to the
FRSA’s kickout provision, § 20109(d)(3), but only to the initial administrative
proceedings before the DOL. Because the kickout provision is silent on the
causation standard, CSX argues, the default but-for causation standard instead
governs. Were we to adopt CSX’s argument, we would be overturning our
precedent, see Tompkins, 983 F.3d at 80 (holding that AIR-21 applies to claims
brought under the kick-out provision); see also Ziparo, 15 F.4th at 158 (stating that
the contributing-factor standard applies), which aligns with every other federal
court of appeals to address the question. 9 We decline CSX’s invitation.
9 See, e.g., Tompkins, 983 F.3d at 79–80; Araujo, 708 F.3d at 157; Conrad v. CSX Transp., Inc., 824 F.3d 103, 107 (4th Cir. 2016); Epple v. BNSF Ry. Co., 785 F. App’x 219, 222 (5th Cir. 2019) (summary order); Armstrong v. BNSF Ry. Co., 880 F.3d 377, 381 (7th Cir. 2018); Kuduk v. BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir. 2014); Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018); Fresquez v. BNSF Ry. Co., 52 F.4th 1280, 1296 (10th Cir. 2022); Hitt v. CSX Transp., Inc., 116 F.4th 1309, 1315 (11th Cir. 2024); see also Lemon v. Norfolk S. Ry. Co., 958 F.3d 417, 419 (6th Cir. 2020) (noting “uncertainties” about the statutory scheme but acknowledging that every court to consider an FRSA claim has employed the AIR-21 framework and proceeding with that analysis).
28 No. 23-262 Ziparo v. CSX Transportation
We begin with the text of § 20109(d). See Mei Xing Yu v. Hasaki Rest., Inc.,
944 F.3d 395, 400 (2d Cir. 2019). Section 20109(d) governs FRSA “[e]nforcement
actions.” Subsection (d)(2) incorporates the “rules and procedures” and “legal
burdens of proof” of AIR-21 to “[a]ny action” brought under subsection (d)(1)—
not just administrative actions before the DOL, as CSX contends. A kickout
action is, of course, an action. See 49 U.S.C. § 20109(d)(3) (referring to the filing of
a lawsuit in federal district court as “an original action”). Section 20109(d)(1), in
turn, provides that “[a]n employee who alleges discharge, discipline, or other
discrimination in violation of subsection (a), (b), or (c) of this section, may seek
relief in accordance with the provisions of this section.” 10 Id. § 20109(d)(1)
(emphasis added). The kickout provision, § 20109(d)(3), is undoubtedly one such
provision. See Provision, Black’s Law Dictionary (8th ed. 2004) (defining a
provision as, among other things, a “clause in a statute”). The text of the kickout
10 We read § 20109(d)(1)’s statement that “any petition or other request for relief under this section to be initiated by filing a complaint with the Secretary of Labor,” id., to merely specify that an employee must first administratively exhaust their claims with the DOL by bringing an initial complaint before the agency. Moreover, because § 20109(d)(1) explicitly governs actions alleging a violation of § 20109(b)—the provision detailing the protected activity in which Ziparo engaged—and § 20109(d) incorporates AIR-21 to all actions, the statutory text also forecloses CSX’s argument that actions alleging a violation § 20109(b) must meet a different causation burden than contributing-factor causation. See Appellee’s Supp. Br. at 2–3. 29 No. 23-262 Ziparo v. CSX Transportation
provision—stating that the employee’s action brought in federal district court is
subject to “de novo review,” 49 U.S.C. § 20109(d)(3)—further suggests that the
district court is to review anew the employee’s complaint, subject to the same
AIR-21 framework that governs that complaint before the DOL. Thus, although
the kickout provision is silent as to a governing framework, that does not matter:
Subsections (d)(1) and (d)(2) collectively incorporate AIR-21 into any action
brought under § 20109(d)—including, necessarily, kickout actions under
§ 20109(d)(3).
While we read the plain, statutory text to compel our conclusion, one
additional consideration fortifies it: CSX’s interpretation would result in the
same FRSA claim being subject to two distinct frameworks depending on
whether the DOL had issued a final decision within 210 days. Under CSX’s
interpretation, if the DOL had issued a final decision within the allotted time, we
would simply review the DOL’s determination under the AIR-21 framework
pursuant to the Administrative Procedure Act. See Metro-N. Commuter R.R. Co. v.
U.S. Dep’t of Lab., 886 F.3d 97, 105–06 (2d Cir. 2018); Carter v. Sec’y, Dep’t of Lab.,
108 F.4th 1028, 1033 (8th Cir. 2024). But if the DOL had not issued a timely final
decision, and the employee filed an action in federal district court, CSX would
30 No. 23-262 Ziparo v. CSX Transportation
have us apply an entirely different standard. Even without the statute’s plain
text as our guide, we think it improbable that Congress intended the “odd
result[],” Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 136 (2d
Cir. 2008), of two distinct frameworks governing the same retaliation claim
simply because the DOL had not acted within 210 days. We therefore conclude,
as we did in Tompkins, that the AIR-21 framework and its contributing-factor
causation standard apply to FRSA actions brought in federal district court
pursuant to the kickout provision, § 20109(d)(3).
Because Murray construed the same AIR-21 framework and contributing-
factor causation standard in the SOX context that applies under the FRSA, its
reasoning binds us here with equal force. Compare 18 U.S.C. § 1514A(b)(2)(C)
(“An action brought [in federal district court under SOX] shall be governed by
the legal burdens of proof set forth in [AIR-21].”), with 49 U.S.C.
§ 20109(d)(2)(A)(i) (“Any action brought under [the FRSA] shall be governed by
the legal burdens of proof set forth in [AIR-21].”).
II. Murray’s Effect on Our FRSA Precedent A. The Contributing-Factor Causation Standard and Murray Before Murray, a circuit split had emerged over the plaintiff’s required
causation burden in FRSA cases. On one side, the Third and Ninth Circuits held
31 No. 23-262 Ziparo v. CSX Transportation
that to meet their causation burden, an employee “need not demonstrate the
existence of a retaliatory motive on the part of the employee taking the alleged
prohibited personnel action in order to establish that his disclosure was a
contributing factor to the personnel action.” See Araujo, 708 F.3d at 158
(emphasis in original); accord Frost v. BNSF Ry. Co., 914 F.3d 1189, 1196 (9th Cir.
2019). But the Seventh and Eighth Circuits concluded that some showing of
retaliatory intent or animus was necessary for the plaintiff’s prima facie case. See
Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014); Gunderson v. BNSF Ry.
Co., 850 F.3d 962, 969 (8th Cir. 2017); Armstrong v. BNSF Ry. Co., 880 F.3d 377, 382
(7th Cir. 2018). Consistent with this split, our sister circuits differed as to
whether temporal proximity alone could satisfy the plaintiff’s prima facie
causation burden—the courts that held that a plaintiff need not show retaliatory
motive or intent decided that temporal proximity alone could suffice. Contrast
Araujo, 708 F.3d at 160, with Kuduk, 768 F.3d at 792.
In Tompkins, we joined the Seventh and Eighth Circuits in holding that an
FRSA plaintiff must “produce evidence of intentional retaliation prompted by
the employee engaging in protected activity.” 983 F.3d at 82. In affirming the
district court’s grant of summary judgment to the employer, we stated that
32 No. 23-262 Ziparo v. CSX Transportation
under the contributing-factor standard, “a showing of discriminatory animus,
which the statute requires, necessarily includes some proof of retaliatory
motive,” “some evidence of retaliatory intent,” or “evidence of intentional
retaliation.” Id. Although we noted that a plaintiff need not show “that the
‘contributing factor’ was the sole factor affecting the discipline or that the
employer acted only with retaliatory motive,” we held that a plaintiff must show
“more than a temporal connection between the protected conduct and the
adverse employment action” to meet their burden. Id. To determine whether the
plaintiff presented a genuine factual issue on causation, we then “weigh[ed] . . .
five highly relevant facts” 11 from the Eighth Circuit’s opinion in Gunderson and
concluded that, although two factors favored the plaintiff, the considerations,
“on balance,” tipped in the employer’s favor. Tompkins, 983 F.3d at 82–83 (citing
Gunderson, 850 F.3d at 969).
In Murray, we imported much of the Tompkins FRSA analysis into the SOX
context. Murray v. UBS Sec., LLC, 43 F.4th 254, 260–61 (2d Cir. 2022). There, we
vacated the jury’s verdict and the district court’s judgment of nearly $1 million in
damages in favor of the plaintiff. Id. at 258, 263. Relying on both the “plain
11 We examine these “facts” or “factors” further below. 33 No. 23-262 Ziparo v. CSX Transportation
meaning” of SOX and our interpretation in Tompkins of “a nearly identical
provision in the [FRSA],” we concluded that the district court erred in failing to
instruct the jury that the plaintiff “had to prove [the employer’s] retaliatory
intent to prevail” on his SOX claim. Id. at 258–60. Our holding created a circuit
split over whether retaliatory intent was an element of a SOX claim. See Murray,
601 U.S. at 32 (noting circuit split). Contrast Murray, 43 F.4th at 258–61, with
Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir. 2010), and Halliburton, Inc. v.
Administrative Rev. Bd., 771 F.3d 254, 263 (5th Cir. 2014) (per curiam).
The Supreme Court’s unanimous opinion in Murray definitively resolved
this circuit split, holding that SOX does not include a retaliatory intent or animus
requirement. Murray, 601 U.S. at 35 (“The Second Circuit was wrong when it . . .
impose[d] an additional requirement that the whistleblower plaintiff prove the
employer’s ‘retaliatory intent’ or animus.”). The Court explained that “an
animus-like retaliatory intent requirement” is “simply absent” from SOX’s
statutory text. Id. at 33–34. A SOX plaintiff, the Court explained, does not need
to prove “intent” to meet their causation burden; instead, “[t]he burden-shifting
framework provides a means of getting at intent, and Congress here has decided
that the plaintiff’s burden on intent is only to show that the protected activity
34 No. 23-262 Ziparo v. CSX Transportation
was a contributing factor in the unfavorable personnel action.” Id. at 36. And the
meaning of a “contributing factor,” the Court elaborated, is “broad indeed,”
requiring only that the factor “have a share in bringing about (a result); [or to] be
partly responsible for [a result].” Id. at 37. Applying the Supreme Court’s
instruction on remand, we explained that a contributing factor must “actually
cause or help cause the termination decision.” Murray, 128 F.4th at 366.
B. Murray Requires Us to Overturn Our FRSA Precedent “While as a general rule, one panel of this Court cannot overrule a prior
decision of another panel, an exception [] arises where there has been an
intervening Supreme Court decision that casts doubt on our controlling
precedent.” Wojchowski v. Daines, 498 F.3d 99, 106 (2d Cir. 2007). The intervening
decision “need not address the precise issue decided by the panel for this
exception to apply,” In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010), but there must
be “a conflict, incompatibility, or inconsistency between this Circuit's precedent
and the intervening Supreme Court decision,” United States v. Afriyie, 27 F.4th
35 No. 23-262 Ziparo v. CSX Transportation
161, 168 (2d Cir. 2022). Applying these principles, we conclude that Murray has
abrogated several of our conclusions in Tompkins. 12
After Murray, we can no longer consider as good law our 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.” 983 F.3d
at 82. Murray clearly held that retaliatory intent is no longer a relevant
consideration for a SOX claim subject to AIR-21. See, e.g., 601 U.S. at 32 (“[A]
[SOX claim] does not require proof of ‘retaliatory intent.’”); id. at 34 (“[T]he word
‘discriminate” does not “inherently require[] retaliatory intent.”); id. at 37
(“While the Second Circuit attempted to make ‘retaliatory intent’ a requirement
for satisfaction of the ‘contributing factor’ element, UBS does not ask this Court
to follow suit, and for good reason.”); id. (“[AIR-21] burden shifting—and not
some separate, heavier burden on the plaintiff to show ‘retaliatory intent’—is
what the statute requires.”). The Murray Court’s holdings apply equally to an
12We have circulated our opinion to all active judges of the court prior to filing and received no objection. See United States v. Bedi, 15 F.4th 222, 232 (2d Cir. 2021). 36 No. 23-262 Ziparo v. CSX Transportation
FRSA claim incorporating the same AIR-21 framework as SOX. Thus, we
overrule Tompkins’s holding that a plaintiff must show retaliatory intent, animus,
or motive to meet their contributing-factor causation burden.
Our post-Murray task is not yet finished, however. In Tompkins, we also
held that the plaintiff “must . . . show more than a temporal connection between
the protected conduct and the adverse employment action . . . to present a
genuine factual issue on retaliation.” 983 F.3d at 82. To be sure, if some showing
of an employer’s retaliatory “animus” or “motive” were a requirement of the
statute, id., it might follow logically that temporal proximity—which offers direct
proof of neither—would necessarily be insufficient on its own to meet the
plaintiff’s causation burden. But because Murray made plain that the causation
standard imposes no such animus or motive requirement on the plaintiff, see 601
U.S. at 32, 34, 37, and that the contributing-factor standard is a “lenient” and
“broad” standard for plaintiffs, id. at 35, 37, Tompkins’s conclusion as to temporal
proximity no longer follows, see Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 274 (2d
Cir. 2005) (overruling prior panel when intervening Supreme Court decision
“entirely undermine[d]” the assumption underlying the prior panel’s statutory
analysis).
37 No. 23-262 Ziparo v. CSX Transportation
Our conclusion that sufficiently close temporal proximity may satisfy the
plaintiff’s contributing-factor causation burden brings us in line with our sister
circuits that did not require a showing of retaliatory intent before Murray. See
Araujo, 708 F.3d at 160. It also harmonizes our FRSA precedent with our
precedent holding that sufficiently close temporal proximity may establish the
plaintiff’s prima facie causation burden under other antiretaliation provisions—
including those that impose higher causation burdens than the FRSA. See, e.g.,
Banks v. Gen. Motors, LLC, 81 F.4th 242, 277 (2d Cir. 2023) (stating that our case
law has “held that a period of several months can demonstrate a causal
connection between the protected activity and the alleged adverse action” for
Title VII retaliation claims); Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d
Cir. 2013) (explaining that “the but-for causation standard [for Title VII
retaliation claims] does not alter the plaintiff’s ability to demonstrate causation at
the prima facie stage on summary judgment or at trial indirectly through
temporal proximity” and concluding that the “three-week period from [the
employee’s] complaint to her termination is sufficiently short to make a prima
facie showing of causation indirectly through temporal proximity”). It would be
peculiar indeed if we imposed a higher burden on a plaintiff bringing a
38 No. 23-262 Ziparo v. CSX Transportation
contributing-factor claim than we do for plaintiffs proceeding under more
burdensome causation standards. See Murray, 601 U.S. at 36 (noting that the
contributing-factor standard applies a lower bar for plaintiffs than do other
statutes).
Of course, a plaintiff proceeding with temporal-proximity evidence alone
must demonstrate that the protected activity and adverse acts were sufficiently
close in order to meet his contributing-factor causation burden. Under other
employment statutes, we have declined to draw a “bright line” demarcating the
permissible outer limits of that proximity. Gorman-Bakos v. Cornell Co-op
Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001). We have instead
permitted courts to “exercise [their] judgment about the permissible inferences
that can be drawn from temporal proximity in the context of particular cases.”
Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). Nonetheless, our caselaw
teaches that a period of several weeks to several months may establish the
required causal relationship. See, e.g., Zann Kwan, 737 F.3d at 845 (several-week
period); Banks, 81 F.4th at 277 (several months); Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 110 (2d Cir. 2010) (“[W]e have previously held that five months is
not too long to find the causal relationship.”). That said, courts should also
39 No. 23-262 Ziparo v. CSX Transportation
consider not only the “passage of a significant amount of time,” but also whether
“some legitimate intervening event” severs the causal connection. Feldman v.
Law Enf’t Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014). Where a plaintiff relies
on both temporal proximity and other forms of evidence, however, “we have
recognized that the lapse in time between the protected activity and adverse
action can be longer.” Banks, 81 F.4th at 277–78.
To the extent that we suggested in Tompkins that the FRSA causation
inquiry requires a balancing of the five Gunderson “facts” or “factors,” that
proposition, too, can no longer stand under Murray. See Tompkins, 983 F.3d at 82–
83 (weighing the five factors and concluding that they tip in the defendant’s
favor even though two of the factors “favor [the plaintiff]”). These “facts” or
“factors” are:
(1) whether and to what extent the disciplinary measures were related to the protected activity, (2) the temporal relationship between the protected activity and the disciplinary measures, including whether any intervening incidents occurred that could independently justify the discipline, (3) whether the disciplined employee was represented by counsel or a similar representative in the disciplinary proceedings, and whether the disciplinary measures were upheld on appeal, (4) whether, if applicable, the disciplinary measures were upheld following Department of Labor proceedings, and (5) whether the persons accused of
40 No. 23-262 Ziparo v. CSX Transportation
hostility towards the employee’s protected activity participated in the disciplinary decision.
Id. In Gunderson, the Eighth Circuit noted that these “five highly relevant facts
[stood] out” based on its understanding that an FRSA plaintiff “must submit
sufficient evidence of ‘intentional retaliation prompted by the employee
engaging in protected activity.’” 850 F.3d at 969 (quoting Kuduk, 768 F.3d at 791).
But Murray has now jettisoned that understanding of contributing-factor
causation, explaining that it “was wrong” to “impose[] an additional
requirement that the whistleblower plaintiff prove the employer’s ‘retaliatory
intent’ or animus.” Murray, 601 U.S. at 35. Instead, a “plaintiff’s burden on
intent is only to show that the protected activity was a ‘contributing factor in the
unfavorable personnel action.’” Id. at 36 (quoting 49 U. S. C. § 42121(b)(2)(B)(i)).
Because an employee may be able to meet their prima facie causation burden
with sufficiently close temporal proximity alone, it follows that on a defendant’s
motion for summary judgment, a court need not weigh these other factors to
determine that a reasonable juror could find that the plaintiff has met their
causation burden. 13
13As a guidepost for district courts, such circumstantial evidence can include “temporal proximity, indications of pretext, inconsistent application of an employer’s
41 No. 23-262 Ziparo v. CSX Transportation
As a broader principle, the FRSA does not deem any type of evidence
categorically insufficient to meet the contributing-factor causation standard. See
Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“[T]he law makes no
distinction between the weight or value to be given to either direct or
circumstantial evidence.”). As the Murray Court elaborated, “[s]howing that an
employer acted with retaliatory animus is one way of proving that the protected
activity was a contributing factor in the adverse employment action, but it is not
the only way.” 601 U.S. at 37 (emphasis added). A plaintiff may therefore meet
their burden through either direct or circumstantial evidence, or both. See id. at
36 (explaining that the AIR-21 burden-shifting framework forces “the defendant
to come forward with some response to the employee’s circumstantial
evidence”); Araujo, 708 F.3d at 161. As the Supreme Court recognized in the Title
VII discrimination context, “[c]ircumstantial evidence is not only sufficient, but
may also be more certain, satisfying and persuasive than direct evidence.” Costa,
policies, an employer’s shifting explanations for its actions, antagonism or hostility toward a complainant’s protected activity, the falsity of an employer’s explanation for the adverse action taken, and a change in the employer’s attitude toward the complainant after he or she engages in protected activity.” Sirois, 797 F. App’x at 59–60 (quoting Niedziejko v. Del. & Hudson Ry. Co., No. 18-0675, 2019 WL 1386047, at *43 (N.D.N.Y. Mar. 27, 2019)). This non-exhaustive list derives from the ARB’s decision in Defrancesco, v. Union Railroad Co., ARB No. 10-114, 2012 WL 694502, at *3 (Admin Rev. Bd. Feb. 29, 2012). 42 No. 23-262 Ziparo v. CSX Transportation
539 U.S. at 100; Bart, 96 F.4th at 569 (“Circumstantial evidence is often the sole
avenue available to most plaintiffs to prove discrimination.”). Such
circumstantial evidence may, of course, include temporal proximity.
In essence, we previously imposed a higher causation burden on FRSA
plaintiffs than the statutory text can bear. As Murray emphasized, within the
“lenient” contributing-factor burden-shifting framework, 601 U.S. at 35, a
contributing factor is “broad indeed.” id. at 37. An employer should not take
personnel actions against employees “based on protected whistleblowing
activities—not even a little bit.” Id. at 36–37. An FRSA plaintiff can therefore
withstand summary judgment on causation so long as they proffer sufficient
evidence—direct or circumstantial, including evidence of temporal proximity—
from which a reasonable jury could infer that the plaintiff’s protected activity
contributed, in any way, to the challenged adverse action.
III. Ziparo’s Present Appeal Having laid the groundwork for considering Ziparo’s FRSA claim, we turn
to the merits of his appeal. Again, the two-step AIR-21 framework provides that
Ziparo must first make out a prima facie case of retaliation under the FRSA by
establishing by a preponderance of the evidence that (1) he engaged in protected
43 No. 23-262 Ziparo v. CSX Transportation
activity; (2) CSX knew that he engaged in the protected activity; (3) he suffered
an unfavorable personnel action; and (4) the protected activity was a
contributing factor in the unfavorable action. Ziparo II, 15 F.4th at 158. At the
summary judgment stage, Ziparo’s claim survives so long as he establishes a
genuine dispute of material fact as to each element of his claim. See Fed. R. Civ.
P. 56(a). If Ziparo meets his burden, CSX must prove, by clear and convincing
evidence, “that [it] would have taken the same unfavorable personnel action in
the absence of that behavior.” 49 U.S.C. § 42121(b)(2)(B)(ii).
A. Ziparo’s Retaliatory Hostile Work Environment We first examine Ziparo’s claim that he was subjected to a retaliatory
hostile work environment before his ultimate termination. The timing of
Ziparo’s protected activity is key: An employer generally cannot be liable for an
adverse action if that action predates the plaintiff’s protected activity. See Slattery
v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).
1. Whether Ziparo Engaged in Protected Activity Before May 2016 At the first step of evaluating Ziparo’s prima facie case, we conclude that
the district court erred in limiting Ziparo’s protected activity to his two safety-
related complaints in early May 2016. See Ziparo III, 2023 WL 2424599, at *4
(finding that “the ‘protected activity’ engaged in by [Ziparo] . . . consisted of his
44 No. 23-262 Ziparo v. CSX Transportation
twice complaining in good faith in early May 2016”). The district court reached
this conclusion by reasoning that, under Ziparo II, protected activity could not
consist of “experiencing a hazardous safety or security condition . . . but [only]
reporting that condition.” Id. at *5 (emphasis in original). Because the district
court found that Ziparo engaged in protected activity only in May 2016, it did
not consider whether he suffered an adverse employment action before May 2016.
Although the district court correctly stated the law, it misapplied it in failing to
consider Ziparo’s informal complaints before May 2016 that the pressure to
falsify the OBWOs created unsafe working conditions.
In Ziparo II, we held that Ҥ 20109(b)(1)(A) protects an employee reporting
what she sincerely believes constitutes a hazardous safety [] condition, regardless
of whether the railroad or a similarly situated employee would reach the same
conclusion or whether the report relates to physical conditions or to employment
practices that create safety or security hazards.” 15 F.4th at 164–65. The FRSA
protects both informal and formal complaints. See id. at 165–66 (holding that
Ziparo’s informal complaints, if credited by a jury, constitute FRSA protected
activity); Monohon v. BNSF Ry. Co., 17 F.4th 773, 777, 783 (8th Cir. 2021) (reversing
the district court’s order granting the defendant’s motion for judgment as a
45 No. 23-262 Ziparo v. CSX Transportation
matter of law where plaintiff expressed safety concerns about a seatbelt rule in a
conference call with a supervisor); cf. Summa v. Hofstra Univ., 708 F.3d 115, 126–
27 (2d Cir. 2013) (holding that Title VII protects “informal protests of
discrimination, including making complaints to management”). Thus, so long as
“Ziparo believed that Lacy’s and Van Blarcom’s demands were creating an
unsafe environment by causing Ziparo (and at least one other employee, Pigula)
to be stressed and distracted and therefore unable to focus properly on their
work” and lodged “complaints of stressful and distracting work conditions,”
Ziparo engaged in protected activity under the FRSA. Id. at 165.
The precise timeline for Ziparo’s initial protected activities is muddled, but
we think that a reasonable juror could find that Ziparo engaged in protected
activity beginning no later than April 2016—before several allegedly retaliatory
actions. As Ziparo testified at his deposition, he and Pigula told Van Blarcom
and Lacy “multiple times that the environment that they’re creating is unsafe,”
before filing a formal ethics complaint in May 2016. Joint App’x 1291–92.
Despite Ziparo’s complaints, the problem “wasn’t stopping” and “was just
getting worse,” which led Ziparo to file a formal complaint to “document[]” his
concerns in May 2016. Id. at 1293. Ziparo’s assertion that he engaged in
46 No. 23-262 Ziparo v. CSX Transportation
protected activity in April 2016 is consistent with Pigula’s, who testified that
Ziparo complained to Lacy “[o]n a daily basis, at least three days a week” for the
“whole time that Mr. Lacy was there” that the requests were “going to be a safety
issue.” 14 Id. at 1308–09. To be sure, there is conflicting testimony. Lacy stated
that Ziparo mentioned his safety concerns only “one time,” in connection with
the threatened insubordination charge on May 3, 2016. Id. at 799–800. Van
Blarcom, meanwhile, stated that Ziparo complained to him several times,
including what he “believe[d]” to be prior to the May 3 ethics complaint, id. at
728–29, and before April 13, id. at 764, although he did not say whether those
complaints raised safety concerns, id. at 728–29. But because we do not “resolve”
factual issues on a motion for summary judgment, In re Dana Corp., 574 F.3d at
156, a jury must determine whether to credit Ziparo’s and Pigula’s testimony that
Ziparo raised safety concerns in April 2016 and therefore engaged in protected
activity, see Ziparo II, 15 F.4th at 165–66.
2. Ziparo’s Retaliatory Hostile Work Environment Theory Because the district court erred in limiting Ziparo’s protected activity to his
complaints in May 2016, it did not consider the possibility that Ziparo
14 Lacy began working as a trainmaster in Watertown beginning in September 2015. 47 No. 23-262 Ziparo v. CSX Transportation
experienced a retaliatory hostile work environment before May 2016. Previously,
we have not explicitly addressed whether a retaliatory hostile work environment
is a cognizable adverse employment action under the FRSA. 15
We conclude that a retaliatory hostile work environment is a cognizable
adverse employment action under the FRSA. The relevant provision of the
FRSA, 49 U.S.C. § 20109(b), prohibits an employer from “discharg[ing],
demot[ing], suspend[ing], reprimand[ing], or in any other way discriminat[ing]
against an employee” for engaging in protected activity. “[T]he ‘normal
definition’ of ‘discrimination’ is ‘differential treatment,’” meaning that the
employer “intentionally” treats the employee “worse.” Murray, 601 U.S. at 34. A
retaliatory hostile work environment—where the employer treats an employee
worse because of protected activity, even if a plaintiff has not “suffered economic
consequences,” Laurent-Workman v. Wormuth, 54 F.4th 201, 216 (4th Cir. 2022)—is
one such act of discrimination, see Richardson v. N.Y. State Dep’t of Corr. Serv., 180
F.3d 426, 446 (2nd Cir. 1999), abrogated on other grounds by Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006) (recognizing that a retaliatory hostile work
15 CSX appears to concede that a retaliatory hostile work environment is a cognizable claim. See Appellee’s Br. at 39 n.7.
48 No. 23-262 Ziparo v. CSX Transportation
environment may constitute an adverse employment action for a Title VII
retaliation claim).
We must next determine the appropriate standard for retaliatory hostile
work environment claims under the FRSA. In federal law, two principal hostile
work environment standards have emerged. For Title VII discrimination claims, a
plaintiff must show that the “workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment.” 16 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see Terry v.
Ashcroft, 336 F.3d 128, 147–48 (2d Cir. 2003). For Title VII retaliation claims,
however, we have explained that the definition of a hostile work environment is
16In Muldrow v. City of St. Louis, Missouri, 601 U.S. 346 (2024), the Supreme Court adopted a broader construction of adverse employment action for Title VII discrimination claims, no longer requiring a plaintiff to show “that the harm incurred was significant[ ] [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar,” id. at 355. The effect of Muldrow on discriminatory hostile work environment claims is still unclear: Post- Muldrow, the Sixth Circuit has held that Muldrow applies to such claims and no longer requires “plaintiffs to show ‘significant’ harm.” McNeal v. City of Blue Ash, 117 F.4th 887, 904 (6th Cir. 2024). But see Dike v. Columbia Hosp. Corp. of Bay Area, No. 24-40058, 2025 WL 315126, at *5 n.25 (5th Cir. Jan. 28, 2025) (summary order) (rejecting the plaintiff’s argument that Muldrow changed the severe-or-pervasive test). We have not yet opined on Muldrow’s impact on discriminatory hostile work environment claims, and the question is not before us here. 49 No. 23-262 Ziparo v. CSX Transportation
“broader” than in the antidiscrimination context. Carr v. N.Y.C. Transit Auth., 76
F.4th 172, 179 (2d Cir. 2023). That proposition is derived from Burlington
Northern & Santa Fe Railway Company v. White, 548 U.S. 53 (2006), where the
Supreme Court held that an adverse employment action for a Title VII retaliation
claim requires a plaintiff to show only “that a reasonable employee would have
found the challenged action materially adverse, which in this context means it
well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination,” id. at 68. Applying the Burlington Northern principle to
a retaliatory hostile work environment claim, we held in Carr that to establish an
adverse employment action for a prima facie case of Title VII retaliation, the
“plaintiff need only show that the allegedly retaliatory actions, taken either
singularly or in the aggregate, were materially adverse,” where a “materially
adverse action is one that well might have dissuaded a reasonable worker from
[engaging in protected activity].” 76 F.4th at 180.
We think that the reasoning in Burlington Northern and Carr compel us to
conclude that the broader definition of a retaliatory hostile work environment
applies in the FRSA context. See Allen v. Admin. Rev. Bd., 514 F.3d 468, 476 n.2
(5th Cir. 2008) (holding that Burlington Northern applies to SOX). In holding that
50 No. 23-262 Ziparo v. CSX Transportation
the definition of an adverse employment action is broader for Title VII retaliation
claims than antidiscrimination claims, the Supreme Court focused on the textual
differences between the two Title VII provisions: Whereas the antidiscrimination
provision prohibits discrimination with “respect to [an employee’s]
compensation, terms, conditions, or privileges of employment,” the
antiretaliation provision makes it unlawful for an employer to “discriminate
against” an employee for protected activity. Burlington Northern, 548 U.S. at 61–
63 (first quoting 42 U.S.C. § 2000e-2(a)(1); and then quoting id. § 2000e-3(a)). The
Court reasoned that because the antidiscrimination provision speaks to actions
“that affect employment or alter the conditions of the workplace,” while “[n]o
such limiting words appear in the antiretaliation provision,” the antiretaliation
provision sweeps more broadly. Id. at 62–63. The relevant provision of the FRSA
contains both the same prohibition on “discrimination” as Title VII’s
antiretaliation provision and an enumerated list of even broader adverse
employment actions, such as an employer “reprimand[ing]” an employee for
protected activity. 49 U.S.C. § 20109(b) (a railroad carrier “may not discharge,
demote, suspend, reprimand, or in any other way discriminate against an
employee”). We therefore conclude that the Carr/Burlington Northern standard
51 No. 23-262 Ziparo v. CSX Transportation
applies to a claim of a retaliatory hostile work environment under the FRSA—
which, here, is an aggregate set of retaliatory actions that “well might have
dissuaded a reasonable worker from [engaging in protected activity].” Carr, 76
F.4th at 180.
Applying this standard, we conclude that a reasonable juror could find
that CSX subjected Ziparo to actions that might well have dissuaded a reasonable
employee from making safety complaints. Illustratively: After Ziparo began
making safety complaints, Van Blarcom’s scrutiny of Ziparo intensified, Joint
App’x 549–51, 1289, Van Blarcom may have selectively brought the handbrake
charge against Ziparo, see id. at 549, Van Blarcom “reamed” and “chew[ed]”
Ziparo out daily, id. at 550–52, and Lacy, following Van Blarcom’s directive,
“scream[ed]” at Ziparo and threatened to fire Ziparo for insubordination, 17 id. at
555–56, 797, 812.
CSX counters that Ziparo’s hostile work environment claim fails because
there is no evidence of violence or threats of violence against Ziparo. But our
17In determining whether CSX subjected Ziparo to a retaliatory hostile work environment, the jury should carefully consider whether these acts occurred after Ziparo engaged in the protected activity of making safety-related complaints.
52 No. 23-262 Ziparo v. CSX Transportation
caselaw requires no such showing—while threats of violence are, of course,
highly probative of a hostile work environment, an employee in the Title VII
retaliation context can show a hostile work environment without such evidence.
See Carr, 76 F.4th at 181 (“All that is relevant is whether the actions, taken in the
aggregate, are materially adverse and would dissuade a reasonable employee
from making a complaint of discrimination.”). Even under the Title VII
antidiscrimination provision’s heightened “severe or pervasive” test, a single
incident can support a hostile work environment even when it does not involve
an “actual or threatened physical assault.” Banks, 81 F.4th at 263. A jury must
determine whether these actions would have dissuaded a reasonable employee
from making the safety complaints.
3. Contributing-Factor Causation As to the last element of Ziparo’s prima facie showing—that his protected
activity was a contributing factor in the retaliatory actions—we conclude that
Ziparo has proffered sufficient evidence to withstand summary judgment. Not
only is there tight temporal proximity—Ziparo’s safety-related complaints and
Van Blarcom’s and Lacy’s retaliatory actions seem to have occurred in a span of
about a month—but it also seems that Van Blarcom and Lacy engaged in that
conduct precisely because Ziparo refused to falsify the OBWO records and
53 No. 23-262 Ziparo v. CSX Transportation
complained about the safety effects of doing so. Indeed, CSX concedes that the
“the record shows that Van Blarcom and Lacy exhibited some hostility or
antagonism towards Ziparo.” Appellee’s Br. at 31. And the supervisors’ marked
change in attitude toward Ziparo intensified after Ziparo’s protected activity
began. See Joint App’x at 1292–93 (Ziparo stating that the retaliatory actions
were “getting worse” after he told Van Blarcom and Lacy “that the environment
that they’re creating is unsafe”).
CSX objects that Van Blarcom’s and Lacy’s hostility and attitude changes
arose because of Ziparo’s refusal to falsify the OBWOs, rather than because of his
protected activity of complaining that the requests were creating an unsafe
working environment. See Appellee’s Br. at 31–32. But Ziparo’s refusals to
falsify the OBWO records and his safety-related complaints are sufficiently
intertwined to preclude summary judgment on causation. Indeed, all that Ziparo
would need to show at this stage is that his safety complaints “played only a
very small role” in the adverse action, not that that those complaints were “the
only reason or that no other factors influenced” Ziparo’s supervisors. Frost, 914
F.3d at 1196–97 (emphasis in original). In any event, an employer’s “legitimate,
non-retaliatory reason for the adverse action . . . is, with rare exception, not to be
54 No. 23-262 Ziparo v. CSX Transportation
considered at the initial causation stage.” DeFrancesco v. Union R.R. Co., ARB No.
13-57, 2015 WL 5921329, at *3 (Admin. Rev. Bd. Sep. 30, 2015). For if we wereto
conclude that an employer could split hairs between protected and non-
protected aspects of an employee’s complaint, employers could readily inoculate
themselves against liability in retaliation cases.
4. CSX’s Affirmative Defense Because summary judgment is inappropriate at step one of AIR-21,
Ziparo’s prima facie case, we next consider whether CSX has met its burden at
the second step. CSX has not offered an argument that, by clear and convincing
evidence, it would have undertaken the adverse actions in the absence of
Ziparo’s protected activity. See 49 U.S.C. § 42121(b)(2)(B)(ii). In any event, CSX
would have difficulty pointing to, in its own words, any factors wholly
“extrinsic” to Ziparo’s protected activity that would “independently lead to
[CSX’s] decision to take the [adverse actions].” Appellee’s Br. at 47 (quoting
DeFrancesco, ARB No. 13-57, 2015 WL 5921329, at *6)). As discussed above, to the
extent that CSX suggests that its supervisors undertook retaliatory actions
because Ziparo refused to submit fraudulent OBWOs, rather than because of his
safety complaints themselves, that defense is unavailing here, where the
protected and non-protected elements of Ziparo’s complaints are tightly
55 No. 23-262 Ziparo v. CSX Transportation
intertwined. Indeed, in considering what would have happened in the “absence
of” the employee’s protected activity, we must excise not only “the protected
activity” but also “the facts logically connected to the protected activity.” Speegle
v. Stone & Webster Constr., Inc., ARB No. 13-74, 2014 WL 1870933, at *7 (Admin
Rev. Bd. Apr. 25, 2014). Here, had Ziparo not repeatedly made unheeded safety
complaints, perhaps his protected activity would not have created escalating
“tension and animosity,” id., that culminated in Van Blarcom’s and Lacy’s threats
to fire Ziparo, see Joint App’x 1292–93 (Ziparo testifying that Van Blarcom and
Lacy were “making it worse and worse” after his initial safety complaints). A
jury must consider this scenario.
As to the suggestion that CSX could lawfully retaliate against Ziparo for
his refusal to commit fraud, 18 that contention overshoots the mark. Step two of
AIR-21 does not require an employer to provide a legitimate business reason for
adverse actions; instead, it asks whether the employer would have taken the
same adverse action in the absence of protected activity. 49 U.S.C.
§ 42121(2)(B)(ii). CSX’s argument suggests that an illegitimate business reason—
18CSX makes this suggestion when discussing causation, rather than its affirmative defense. See Appellee’s Br. at 31–32. 56 No. 23-262 Ziparo v. CSX Transportation
such as retaliating against an employee who refuses to commit fraud—could
satisfy its burden under AIR-21. But Congress intended AIR-21 to be more
“lenient,” Murray, 601 U.S. at 35, and “much easier for a plaintiff to satisfy than
[other] standard[s],” Araujo, 708 F.3d at 159. For that reason, in the AIR-21
context, the ARB has considered whether the adverse action “advanced a
legitimate business reason that would have occurred for reasons extrinsic to the
[protected] activity itself” or “a legitimate, non-discriminatory business reason
unrelated to [the plaintiff’s] protected activity.” Menendez v. Halliburton, Inc.,
ARB No. 12-26, 2013 WL 1385561, at *10 (Admin. Rev. Bd. Mar. 15, 2013), aff’d sub
nom., Halliburton, Inc. v. Admin. Rev. Bd., 771 F.3d 254 (5th Cir. 2014).
Here, by all accounts—as evidenced by CSX’s investigatory findings and
disciplinary actions against Van Blarcom and Lacy, see Joint App’x 1396–99—
Ziparo fully complied with CSX policy in correctly marking the OBWOs.
Because there is no indication that Ziparo 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 Ziparo’s protected activity for its
adverse employment actions. See Fordham v. Fannie Mae, ARB No. 12-61, 2014
WL 5511070, at *23 (Admin. Rev. Bd. Oct. 9, 2014) (framing the employer’s
57 No. 23-262 Ziparo v. CSX Transportation
burden as “proving by ‘clear and convincing evidence’ not only the existence of a
legitimate, non-retaliatory basis for the contested personnel action but that the
employer would have taken the contested action on that basis alone had the
complainant not engaged in protected activity”).
B. Ziparo’s Termination Theory Finally, we turn to Ziparo’s challenge to his ultimate termination. It is
undisputed that Ziparo engaged in protected activity by raising his safety
concerns with Lacy on May 3, 2016, and through the CSX’s ethics hotline on May
4, that CSX knew of Ziparo’s protected activity, and that Ziparo’s termination
constitutes an adverse employment action. The sole issue as to Ziparo’s prima
facie case is therefore whether he can show by a preponderance of the evidence
that his protected activity was a contributing factor in his termination. See 49
U.S.C. § 42121(b)(2)(B)(i). If Ziparo meets his burden, we must determine
whether CSX has demonstrated by clear and convincing evidence that it would
have terminated Ziparo had he not engaged in protected activity. See id.
§ 42121(b)(2)(B)(ii).
As we understand Ziparo’s theory, he does not argue that the undue stress
caused by Van Blarcom and Lacy interfered with his job duties and caused him
58 No. 23-262 Ziparo v. CSX Transportation
to leave the switch misaligned on June 9; instead, he contends, the switch
incident was independent from his protected activity but CSX’s decision to
terminate him based on that incident was retaliatory. See Appellant’s Br. at 51.
That leaves open two questions: (1) whether, as to Ziparo’s prima facie burden,
there is evidence from which a reasonable juror could conclude that his protected
activity contributed in any way to CSX’s decision to terminate him, even if CSX
may have had legitimate reason to do so; and (2) if Ziparo meets his burden,
whether CSX can show by clear and convincing evidence that it would have
1. Ziparo’s Prima Facie Contributing-Factor Causation Burden In light of the Supreme Court’s construction of the contributing-factor
standard in Murray, we conclude that Ziparo has met his causation burden. To
meet his burden on summary judgment, Ziparo 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] played
only a very small role in [CSX’s] decision-making process.” Frost, 914 F.3d at
1197; see Murray, 601 U.S. at 36–37 (“[P]ersonnel actions against employees
should quite simply not be based on protected whistleblowing activities—not
even a little bit.”). Several pieces of evidence compel our conclusion.
59 No. 23-262 Ziparo v. CSX Transportation
First, there is clear evidence of employer hostility or antagonism toward
Ziparo, which CSX concedes. See Appellee’s Br. at 31 (“[T]he record shows that
Van Blarcom and Lacy exhibited some hostility or antagonism towards Ziparo.”).
As recounted above, this antagonism appears to have stemmed, at least in part,
from Ziparo’s safety-related complaints. Significantly, CSX employees who were
either hostile to Ziparo or knew of Ziparo’s complaints were involved in the
termination process. In fact, Van Blarcom served as the charging offer at the
hearing on June 16, 2016, that ultimately resulted in Ziparo’s termination. See
R7.1 Resp. (Dist. Ct. Dkt. 50-28) ¶ 184. Additionally, Jerry Lewandowski, the
Assistant Division Manager for the Albany Division—who, according to Lacy,
told Lacy that he would be “watching” Ziparo because of Ziparo’s ethics
complaint, see Joint App’x 845 ¶ 12—signed the rule violation letter against
Ziparo on June 13, 2016, see R7.1 Resp. (Dist. Ct. Dkt. 50-28) ¶ 183. Although
there does not appear to be evidence that the two ultimate decision-makers—
Brian Murray, who served as the hearing officer, see id., and Division Manager of
the Albany Division Bill Sester, who terminated Ziparo, see Joint App’x 1130—
expressed hostility or antagonism to Ziparo, the record suggests that they knew,
at the very least, about Ziparo’s ethics complaint, see id. at 700 (Van Blarcom’s
60 No. 23-262 Ziparo v. CSX Transportation
testimony that Sester was aware of Ziparo’s ethics complaint); id. at 836 (Lacy’s
testimony that he “may have discussed” Ziparo’s complaints with Murray and
that Ziparo’s ethics complaint “became common knowledge”); id. at 1350 (Lacy
stating that Sester “would have to know about [the ethics complaint] because
“Sester handed down any ruling that the ethics department made”); id. at 1357
(Lacy’s testimony that Sester discussed the investigation of Ziparo’s complaint
with him).
Second, although a legitimate intervening event between protected activity
and a termination may justify an adverse action by severing the causal
relationship between the two, Feldman, 752 F.3d at 348, the close temporal
proximity of about two months between Ziparo’s protected activity and
termination support an inference of causation, see, e.g., Gorman-Bakos, 252 F.3d at
555 (holding that a period of four months between the protected activity and the
adverse action was “sufficient to support an allegation of a causal connection
strong enough to survive a summary judgment motion”). Indeed, not only is
there close temporal proximity between Ziparo’s protected activity and his
termination, there is also close temporal proximity between Van Blarcom’s and
Lacy’s earlier retaliatory actions—including threatening to fire Ziparo—and
61 No. 23-262 Ziparo v. CSX Transportation
Ziparo’s ultimate termination. In other words, CSX may have had the urge to
strike while the retaliatory iron was still hot.
Last but not necessarily least, CSX inconsistently applied its policies in
firing Ziparo: It terminated only six out of the seventeen other employees
charged with similar CSX rules violations as Ziparo. See Ziparo III, 2023 WL
2424599, at *6. Such circumstantial evidence of disparate treatment among
similarly situated employees is relevant to both the plaintiff’s showing of a prima
facie inference of causation and CSX’s affirmative-defense burden. Araujo, 708
F.3d at 162 (considering disparate-treatment evidence at both steps of AIR-21).
CSX’s inconsistency in terminating employees for the same offense, coupled with
substantial evidence of hostility toward Ziparo, all in a several-month span,
suggest that Ziparo’s protected activity may have contributed at least to some
extent to CSX’s decision to terminate his employment.
2. CSX’s Affirmative Defense Finally, we conclude that CSX has failed to demonstrate, by clear and
convincing evidence, that it would have terminated Ziparo had he not engaged
in protected activity. See 49 U.S.C. § 42121(b)(2)(B)(ii).
62 No. 23-262 Ziparo v. CSX Transportation
“The right way to think about [the employer’s affirmative defense],” as
the Supreme Court explained in Murray, “is to change one thing at a time and see
if the outcome changes”: If an employer would have let go an otherwise
identical employee who had not engaged in the protected activity, the employer
has met its burden. 601 U.S. at 38. But an employer does not meet this burden
merely by proving what it could have done—instead, it must show what it would
have done in a counterfactual scenario in which the plaintiff had engaged in no
protected activity. See Brousil v. U.S. Dep’t of Lab., 43 F.4th 808, 812 (7th Cir.
2022). And it must prove this counterfactual under the “steep” evidentiary
burden of clear-and-convincing evidence, Araujo, 708 F.3d at 162, such that the
material offered “instantly tilt[s] the evidentiary scales” in the employer’s favor,
Colorado, 467 U.S. at 316. Because of both the heavy evidentiary burden and the
fact-intensive character of this inquiry, the employer’s “affirmative defense is
often not suitable for summary judgment determination.” Kuduk, 768 F.3d at 793.
The factors our sister circuits have considered in determining whether the
employer has met its burden include: “(1) how ‘clear’ and ‘convincing’ the
independent significance is of the non-protected activity; (2) the evidence that
proves or disproves whether the employer ‘would have’ taken the same adverse
63 No. 23-262 Ziparo v. CSX Transportation
actions; and (3) the facts that would change in the ‘absence of’ the protected
activity.” Brousil, 43 F.4th at 812. Of course, since “[e]ach case is different, and
some factors that are critical in one case may shed little light in another case,”
Parker v. BNSF Ry. Co., 137 F.4th 957, 965 (9th Cir. 2025), we “holistically consider
any and all relevant, admissible evidence,” Brousil, 43 F.4th at 812.
To meet its burden, CSX relies exclusively on its finding that Ziparo was
responsible for the switch incident, which, it posits, justifies its decision to
terminate his employment. But whether CSX could have terminated Ziparo does
not end our inquiry: “While the facts in the record may show that [the plaintiff]
was technically in violation of written rules, they do not shed any light on
whether [the defendant’s] decision to [undertake the adverse employment
action] was retaliatory.” Araujo, 708 F.3d at 163. Here, the undisputed evidence
that CSX terminated only six of the seventeen similarly situated employees
leaves us unconvinced that it was “highly probable or reasonably certain” that
CSX would have terminated Ziparo had he not engaged in protected activity. 19
19At oral argument, CSX contended that it terminated four of five other conductors in 2016 for similar rules violations, which, it posits, demonstrates that it consistently terminated similarly situated employees to meet its affirmative-defense burden. See Oral Audio Recording, Ziparo v. CSX Transportation, Inc., No. 23-262, at 13:00–14:17. But whether 2016 or a broader time period is the relevant time period to assess CSX’s consistent-treatment argument is a factual question for the jury to resolve. 64 No. 23-262 Ziparo v. CSX Transportation
Appellee’s Br. at 46. In other words, CSX usually retains employees who erred as
Ziparo did. On this record of disparate treatment, we can hardly be certain that
CSX would have terminated Ziparo had he not repeatedly made safety
complaints. Contrast Greatwide Dedicated Transp. II, LLC v. U.S. Dep’t of Lab., 72
F.4th 544, 559 (4th Cir. 2023) (rejecting employer’s affirmative defense where
there was no evidence that similarly situated employees “faced immediate
termination or other disciplinary measures”), and Fresquez v. BNSF Ry. Co., 52
F.4th 1280, 1307–08 (10th Cir. 2022) (rejecting FRSA affirmative defense when
employer did not show consistent application of stand-alone dismissible policy),
with Kuduk, 768 F.3d at 793 (defendant proved its affirmative defense by
presenting “uncontroverted evidence that it consistently enforced [its] policy”).
Because CSX took a more severe adverse action against Ziparo, a whistleblower,
than against many similarly situated comparators, a jury could conclude that
CSX was “looking for a reason to terminate [Ziparo’s] employment because [he
engaged in protected activity].” Fresquez, 52 F.4th at 1310.
CSX insists that courts should “defer to [its] exercise of reasonable
judgment and its honest belief that the discipline decision was proper—even if
its decision was ultimately incorrect.” Appellee’s Br. at 50. But we do not defer
65 No. 23-262 Ziparo v. CSX Transportation
to an employer at step two of the AIR-21 burden-shifting framework, which
places the burden by clear-and-convincing evidence on CSX to affirmatively
demonstrate that it would have fired Ziparo had he not engaged in protected
activity. Murray, 601 U.S. at 38–39. What is more, by invoking judicial deference
to its business judgment, CSX begs the question—deference is, of course,
appropriate only if an employer’s exercise of its business judgment is lawful. See
Weiss v. JPMorgan Chase & Co., 332 F. App’x 659, 663 (2d Cir. 2009) (summary
order) (“An employer’s invocation of the business judgment rule does not
insulate its decisions from all scrutiny. . . .”). And the way that AIR-21
determines the lawfulness of an employer’s actions is, at step two, by asking
whether CSX would have retained an otherwise identical employee who had not
engaged in protected activity. We conclude that no such deference is
appropriate where the record indicates that CSX inconsistently terminates
employees for similar misconduct.
We conclude that whether CSX unlawfully retaliated against Ziparo is a
jury question. If a jury finds that Ziparo has met his prima facie burden of
demonstrating, by a preponderance of the evidence, a causal connection between
his protected activity and his termination, the jury must then evaluate whether
66 No. 23-262 Ziparo v. CSX Transportation
CSX has met its burden of showing by clear-and-convincing evidence that it
would have terminated Ziparo had he not engaged in protected activity.
CONCLUSION Based on the foregoing, we conclude that CSX is not entitled to summary
judgment on Ziparo’s FRSA retaliation claim. The judgment of the district court
is therefore VACATED, and this case is REMANDED for further proceedings
consistent with this opinion.
Related
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