163093P.pdf   08/14/2017  BNSF Railway Co.  v.  LABR
   U.S. Court of Appeals Case No:  16-3093
   Petition for Review of an Order of the Department of Labor (except OSHA)   
   [PUBLISHED] [Loken, Author, with Wollman, Circuit Judge, and Nelson, 
   District Judge] 
   Petition for Review - Administrative Review Board. Where the railroad 
   discovered through discovery in an employee's FELA action that he had made 
   dishonest statements in his employment application and medical 
   questionnaire, the ALJ erred in finding that the employee's termination 
   violated the Federal Rail Safety Act; the ALJ's conclusion that the filing 
   of an injury report "set off a chain of events" which led to his 
   termination and was therefore improper retaliation for engaging in a 
   protected activity is contrary to judicial precedent construing the 
   causation element of a Federal Rail Safety Act retaliation claim; to hold 
   that protected activity is a contributing factor to an adverse action 
   simply because it ultimately led to the employer's discovery of misconduct 
   confuses a cause with proximate cause; further absent sufficient evidence 
   of intentional retaliation, a showing that protected activity initiated a 
   series of events leading to an adverse action does not satisfy the Federal 
   Rail Safety Act's contributing factor causation standard; while the 
   Administrative Review Board did not rely on the ALJ's chain-of-events 
   causation theory, it affirmed based on findings which were either 
   non-existent or insufficient to support the Board's contributing factor 
   and affirmative defense rulings. Vacated and remanded for further 
   proceedings.