In Sirois v. Long Island Railroad Company, 18-2858-cv, 2020 WL 209282 (2d Cir. Jan. 14, 2020), the court affirmed the dismissal of plaintiff’s retaliation claim under the Federal Railroad Safety Act. Plaintiff asserted that the defendant violated the FRSA by retaliating against her after she reported a work-related personal injury.
The FRSA provides that a railroad
may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee’s lawful, good faith act done, or perceived by the employer to have been done or about to be done– … to notify, or attempt to notify, the railroad carrier … of a work-related personal injury or work-related illness of an employee.
49 U.S.C § 20109(a).
The court summarized the legal framework applicable to FRSA retaliation claims (citations and internal quotation marks omitted):
FRSA retaliation claims are evaluated under the burden-shifting test of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century. See 49 U.S.C. § 42121(b); see also 49 U.S.C. § 20109(d)(2)(A)(i). Because Congress intended [this burden-shifting framework] to be protective of plaintiff-employees, it is much easier for a plaintiff to satisfy than the McDonnell Douglas standard. Accordingly, to establish a prima facie claim of retaliation under the FRSA, an employee must show by a preponderance of the evidence that (1) she engaged in protected activity as defined in the statute; (2) she suffered an unfavorable personnel action; and (3) the protected activity was a contributing factor in the unfavorable action. Once a prima facie case is established, the railroad can rebut it by prov[ing] by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the complainant’s protected behavior.
While this Circuit has not had occasion to define what qualifies as an adverse personnel action under the FRSA’s prohibition on discriminating against an employee, the FRSA’s language parallels that of other anti-retaliation statutes, including Title VII. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employee to discriminate against any of his employees or applicants for employment….”). In Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court interpreted Title VII’s anti-retaliation provision as prohibiting any action that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Whether the Burlington Northern standard applies to retaliation claims under the FRSA is an open question.3 We need not decide the issue here, however, because even assuming Sirois suffered an adverse employment action, she failed to establish that the protected activity was a contributing factor in the unfavorable action.
A plaintiff can establish a prima facie case that his protected activity was a contributing factor in the adverse action by … circumstantial evidence … includ[ing]  temporal proximity,  indications of pretext,  inconsistent application of an employer’s 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. …
Temporal proximity may support a prima facie inference that the protected activity was a contributing factor, but only where the protected act and the retaliation occur in quick succession.
Applying the law, the court held that plaintiff failed to meet this standard. Here, the alleged adverse employment action (reclassification of plaintiff’s injury) occurred over four years after the protected activity (reporting the injury), and “[a] temporal gap of over four years is too attenuated to support the requisite inference.”