United States Court of Appeals

for the Fifth Circuit

No. 20-60274

Jeff Yowell, 

Petitioner,

versus

Administrative Review Board, United States 

Department of Labor, 

Respondent,

Fort Worth & Western Railroad Company,

Intervenor.

On Petition for Review of a Final Decision and Order of the

United States Department of Labor’s Administrative Review Board

ARB Case No. 2019-39

Before Jolly, Southwick, and Costa, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

A railroad employee has petitioned for review of a decision by the

Department of Labor’s Administrative Review Board (“ARB”) that upheld

his discharge. The petitioner argues that he was improperly terminated for 

reporting a job-related injury, an act that the Federal Railroad Safety Act 

United States Court of Appeals

Fifth Circuit

FILED

April 12, 2021

Lyle W. Cayce

Clerk

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(“FRSA”) protects. We hold, instead, that the ARB did not err in finding 

that the railroad terminated the petitioner’s employment for failing to 

comply with his obligation to report promptly all known injuries and that his 

eventual acknowledgement of the injury was not a “contributing factor” for 

purposes of the FRSA. The petition is DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

The railroad employee, Jeff Yowell, challenges only the ARB’s legal 

conclusions. Because there is no dispute about the facts, we summarize them 

as stated in the ARB’s decision.

Yowell began working for Fort Worth & Western Railroad Company 

(“FWWR”) in May 2017. FWWR had a workplace-injury policy that 

required reporting an injury “immediately, no matter how small,” to the 

supervisor. The purposes of this policy were to further employee safety and 

allow the railroad to investigate the site of any injury immediately.

At 11:00 p.m. on August 28, 2017, Yowell began his night shift. Early 

the following morning, he reported that he had injured his knee during that 

shift. He met with company representatives that same morning to identify 

the cause of his injury and to determine whether he required medical 

treatment. Yowell’s recounting of the events was inconsistent in detailing 

both how he injured himself and where the injury occurred. Chance Gibson, 

the initial representative to speak with Yowell, had doubts about the accuracy 

of Yowell’s explanation and asked Yowell to write out a statement. 

At that point, Chief Transportation Officer Jared Steinkamp arrived. 

Steinkamp learned of the inconsistencies that Yowell had provided and 

sought to uncover the origin of Yowell’s injury. Yowell eventually admitted 

that he had injured his knee sometime the prior week but had failed to report 

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it. That injury resulted in swelling and Yowell’s need to wear a brace, yet

Yowell chose not to disclose his injury to the company for more than a week. 

Yowell wrote out two statements that identified the injury from the previous 

week as the reason for his current pain. Yowell does not dispute that he had 

all along been aware of an injury. Yowell received medical treatment for this 

injury. 

Because Yowell had violated company policy by failing to report the

knee injury immediately, Gibson recommended Yowell’s employment be 

terminated. After further discussions with FWWR’s CEO and humanresources department, Steinkamp terminated Yowell’s employment on 

September 13, 2017. 

Yowell first sought review of his employment termination through the 

Occupational Safety and Health Administration, which found that his 

employment termination did not violate the FRSA. Yowell objected to that 

finding and requested a hearing before an administrative law judge (“ALJ”). 

A hearing occurred in April 2018. The ALJ concluded that Yowell’s

employment termination violated the FRSA, and it ordered reinstatement, 

backpay, and other relief. FWWR sought further review, and the ARB

reversed the ALJ’s decision. The ARB held there had been no violation of 

the FRSA. Yowell petitioned this court for review. His arguments criticize

the causation standard that the ARB applied to his case. 

DISCUSSION

The Administrative Procedure Act governs our review of this case. 

Halliburton, Inc. v. Admin. Rev. Bd., 771 F.3d 254, 258 (5th Cir. 2014). The 

Act requires a court to “hold unlawful and set aside agency action, findings, 

and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We review 

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the agency’s conclusions of law de novo. Halliburton, 771 F.3d at 258. An 

agency’s factual findings are reviewed to determine if they are supported by 

substantial evidence. Williams v. Admin. Rev. Bd., 376 F.3d 471, 475–76 (5th 

Cir. 2004). “Under the substantial evidence standard, the ARB’s decision 

must be upheld if, considering all the evidence, a reasonable person could 

have reached the same conclusion as the ARB.” Id. at 476 (citing Asarco, Inc. 

v. NLRB, 86 F.3d 1401, 1406 (5th Cir. 1996)). “Substantial evidence is ‘more 

than a mere scintilla but less than a preponderance.’” Id. (quoting Ripley v. 

Chater, 67 F.3d 552, 555 (5th Cir. 1995)). 

Yowell divides the issues for our review in a manner that we will not 

follow precisely, but we will address all his arguments in the following order. 

First, we discuss the statutory requirements needed to prevail in a FRSA 

action. Then, we explain what satisfies the contributing-factor standard. 

Finally, we apply that standard to Yowell’s case. 

I. Requirements for proving retaliation under the FRSA

The FRSA focuses on promoting safety in the railroad industry. 49 

U.S.C. § 20101. Congress later amended the Act to create stronger 

protections for employees who engage in whistleblower activities. See Pub. 

L. No. 110–53, § 1521, 121 Stat. 266 (2007). One such protection prevents 

railroad carriers from discriminating or retaliating against an employee who 

engages in a protected activity. 49 U.S.C. § 20109. Railroad carriers “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.” § 20109(a). 

The statute lists seven protected activities. § 20109(a)(1)–(7). One

of the enumerated activities is central in this case, that of “notify[ing], or 

attempt[ing] to notify, the railroad carrier . . . of a work-related personal 

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injury.” § 20109(a)(4). Two more subsections of the employee-protection 

provision guard against retaliation for actions related to safety or security 

conditions or for seeking and receiving medical attention. § 20109(b), (c). 

An action brought to enforce these protections “shall be governed by 

the legal burdens of proof set forth in section 42121(b).”

§ 20109(d)(2)(A)(i). We have described the burden shifting of that statute to 

require an employee first to establish by a preponderance of the evidence 

that: (1) he had been involved in a protected activity; (2) the employer was 

aware that the employee had been involved in such an activity; (3) the 

employee was subjected to an unfavorable personnel action; and (4) the 

protected activity was a “contributing factor” in that unfavorable personnel 

action. Allen v. Admin. Rev. Bd., 514 F.3d 468, 475–76 (5th Cir. 2008); see

§ 42121(b)(2)(B)(i).1

Secondly, if an employee establishes a prima facie case, the burden 

shifts to the employer to prove the same-action defense. 

§ 42121(b)(2)(B)(iv). Under the same-action defense, a railroad carrier has 

the opportunity to “demonstrate[] by clear and convincing evidence that [it]

would have taken the same unfavorable personnel action in the absence of 

that behavior.” Id. The employee cannot obtain relief if the employer 

succeeds in establishing the same-action defense. Id.

The parties here do not dispute that Yowell engaged in the protected 

activity of reporting an injury,2 that FWWR was aware of such activity, and 

1 We have likened the burden shifting under this statute to that of the McDonnell 

Douglas framework. Ameristar Airways, Inc. v. Admin. Rev. Bd., 650 F.3d 562, 566–67 (5th 

Cir. 2011). We have also commented, though, that the two frameworks are “distinct.” 

Allen v. Admin. Rev. Bd., 514 F.3d 468, 476 (5th Cir. 2008). In our view, one of these

opinions emphasized the similarities, while the other acknowledged the differences.

2 FWWR argued to the ALJ and the ARB that Yowell did not engage in a protected 

activity because his report of an injury was not made in good faith, but both rejected that 

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that FWWR terminated Yowell’s employment. The only dispute is whether 

Yowell’s protected activity was a contributing factor in the unfavorable 

personnel action. 

II. The contributing-factor standard

We have previously defined “contributing factor” as “any factor, 

which alone or in combination with other factors, tends to affect in any way 

the outcome of the [employer’s] decision.” Allen, 514 F.3d at 475 n.3

(citation omitted). Our review today of the contributing-factor standard 

includes a summary of the relatively recent change in the ARB’s 

interpretation of that standard.

The fundamental disagreement between the parties is how to evaluate

a factual scenario in which an employee’s protected act itself reveals, or at 

least leads to the discovery of, conduct for which discipline is otherwise 

appropriate. The facts of this case, unsurprisingly, provide an archetype of 

such a scenario: Was Yowell’s protected act of reporting a workplace injury 

a contributing factor to Yowell’s being disciplined for failing to comply with 

the obligation to report injuries promptly? FWWR maintains that the 

discipline was for misconduct that is distinct from the protected act. Yowell

arguesthat the two were intertwined and that the railroad violated the FRSA.

The Department of Labor (“DOL”), which defends the ARB decision 

to this court, argues a proximate-cause standard is implied in the FRSA. The 

DOL contends that “an employee should not be able to shield himself from 

discipline for his own workplace misconduct merely by reporting it to the 

carrier himself.” FWWR similarly argues: “If the protected activity merely 

begins a chain of events which leads to the employee being disciplined, that 

contention. We do not interpret FWWR’s briefing to this court as continuing to dispute 

that Yowell’s report of the injury constitutes a protected activity.

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is insufficient to establish retaliation due to the protected activity, as required 

by the FRSA.” Yowell responds that the ARB’s standard creates a 

heightened burden on FRSA claimants that is incongruent with the FRSA’s 

plain text and its policy goals. 

The ALJ’s opinion in this case (which the ARB overturned) stated 

that the necessary linking of the protected activity and the adverse action can 

be achieved by showing the two are “inextricably intertwined”:

Protected activity and employment actions are inextricably 

intertwined when protected activity “directly leads to the 

[unfavorable] employment action in question, or the 

employment action cannot be explained without discussing the 

protected activity.” Benjamin v. Citationshares Mgmt., LLC, 

ARB No. 12-029, ALJ No. 2010-AIR-001, slip op. at 12 (ARB 

Nov. 5, 2013); DeFrancesco v. Union R.R. Co., ARB No. 10-114, 

ALJ No. 2009-FRS-009, slip op. at [7] (ARB Feb. 29, 2012) 

(finding the complainant’s suspension was directly intertwined 

with his protected activity because had the complainant not 

reported his injury, the respondent would not have conducted 

an investigation that resulted in his discipline)[several 

additional cited ARB decisions are deleted].

In its February 2020 decision in this case, the ARB explained that a 

few months after the ALJ’s decision, the ARB abandoned the standards of 

chain of events and inextricably intertwined events:

As we explained in Thorstenson, the ARB no longer requires 

that ALJs apply the “inextricably intertwined” or “chain of 

events” analysis. Thorstenson v. BNSF Ry. Co., ARB Nos. 18-

059, -060, ALJ No. 2015-FRS-052, slip op. at 10 (ARB Nov. 25, 

2019) (“We note that the plain language of the statute does not 

include the term ‘inextricably intertwined.’ Rather, this is a 

construction that substitutes for, and in some cases 

circumvents, the ALJ’s contributing factor or affirmative 

defense analyses.”). [“]By placing the focus on how the 

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employer came to learn of the employee’s wrongdoing rather 

than the employer’s actions based on that wrongdoing or 

protected activity, [‘]chain of events[’] causation departs from 

the statute’s [‘]contributing factor[’] text.[”] Id. at 10. 

On review of the ARB’s Thorstenson decision, the Ninth Circuit 

rejected the ARB’s articulation of a new approach; it did so in an opinion that 

is not precedential, even in that circuit. Thorstenson v. U.S. Dep’t of Lab., 831 

F. App’x 842, 843 (9th Cir. 2020). As far as we have discovered, the Ninth 

Circuit is the only one to disagree with the ARB’s current interpretation of 

contributing factor in situations such as those in the present case, namely, 

that the protected act was what revealed the separate misconduct for which 

the employee was disciplined. That Ninth Circuit panel held that the ARB 

had improperly begun requiring proof that the protected activity was the 

proximate cause of the adverse action, a standard that was inconsistent with 

the Ninth Circuit’s FRSA caselaw. Id. The DOL in this appeal argues that

a proximate-cause limitation in some form is implicit in the FRSA, but it 

acknowledges that there is no all-purpose definition of such causation. We 

will discuss proximate cause later. We at least observe now that the Ninth 

Circuit’s reasoning is arguably inconsistent with several opinions from other 

circuit courts that we will soon discuss. 

The DOL and FWWR argue that not only is it improper to examine 

how intertwined the relevant events were, but it is incorrect to apply a 

standard that examines whether the adverse action was part of a chain of 

events that also included the protected activity. Such causation examines 

whether a protected activity set in motion succeeding events that resulted in 

the adverse personnel action. We see no particular distinction between these 

two standards. The ARB’s decision here disclaimed further reliance on 

either a chain or an intertwining of events, as it is irrelevant “how the 

employer came to learn of the employee’s wrongdoing.” 

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A significant part of the ARB’s explanation in this case of 

“contributing factor” is the following that appeared in one paragraph of its 

opinion. The ARB first stated that a contributing factor is “any factor, which 

alone or in connection with other factors, tends to affect in any way the 

outcome of the decision,” citing Rookaird v. BNSF RailwayCo., 908 F.3d 451, 

461–62 (9th Cir. 2018), which quoted Gunderson v. BNSF Railway Co., 850 

F.3d 962, 969 (8th Cir. 2017). The ARB then made this key point: “[T]he 

contributing factor that an employee must prove is intentional retaliation 

prompted by the employee engaging in protected activity,” quoting Kuduk v. 

BNSF Railway Co., 768 F.3d 786, 791 (8th Cir. 2014) (emphasis added). 

Despite these statements, the ARB then immediately explained that “a 

complainant need not prove a retaliatory motive beyond showing that the 

employee’s protected activity was a contributing factor in the adverse 

action,” quoting Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 

152, 158 (3d Cir. 2013).3

 Despite describing the legal principles in this way, 

the ARB did not return to the issue of intent when setting out its analysis of 

the facts.

The ARB was distinguishing between an employer’s intentional 

retaliation “prompted” by protected activity and an employer’s motive to 

retaliate. To understand what that distinction could be, we examined the 

cited Third Circuit Araujo opinion and then the authorities Araujo relied 

upon. We find no such distinction. What we find in Araujo was that an

employee in his or her prima facie case under the FRSA need not present 

evidence of the employer’s “retaliatory motive”; when the burden shifts to 

the employer, though, it can avoid liability by showing it would have taken 

3 The ARB used the identical analysis and authorities that we just summarized in 

its earlier Thorstenson decision. Thorstenson v. BNSF Ry. Co., ARB Nos. 18-059, -060, ALJ 

No. 2015-FRS-052, 2019 WL 11901996, at *5 (ARB Nov. 25, 2019).

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the same action even without the employee’s protected activity. Id. at 158–

59 (citing Marano v. Dep’t of Just., 2 F.3d 1137, 1140–41 (Fed. Cir. 1993)).

4 

Whatever the ARB identified as the difference between a retaliatory motive 

and intentional retaliation is not readily apparent to us. 

We now examine whether the ARB’s analysis in this case can be 

upheld under our review standard. The language of the statute is a good place 

for us to begin. The FRSA prohibits retaliation that is “due, in whole or in 

part,” to the employee’s engaging in a protected activity. 49 U.S.C. § 

20109(a). The Supreme Court has interpreted similar language as creating 

liability if the employee’s action causes “even the slightest” influence on the 

employer’s decision. CSX Transp., Inc. v. McBride, 564 U.S. 685, 692, 695–

99 (2011) (quoting Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500 (1957)). 

Even such a broad interpretation, though, has its limits. CSX dealt 

with a different federal statute involving railroad workers, the Federal 

Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq. CSX Transp., 564 

U.S. at 688. The Supreme Court reviewed whether importing a proximatecause standard into that statutory framework was appropriate. Id. The Court 

said that “‘proximate cause’ is shorthand for a concept: Injuries have 

countless causes, and not all should give rise to legal liability.” Id. at 692. 

Acknowledging that the meaning of the term varies, and many of the 

definitions are confusing, the Court held that common sense imposes some 

4 The Marano case was interpreting the Whistleblower Protection Act that said 

“corrective action” in favor of an employee was to be ordered when the employee’s 

whistleblowing “was a contributing factor in the personnel action which was taken . . . 

against such employee.” 5 U.S.C. § 1221(e)(1); Marano, 2 F.3d at 1140 (alteration in 

original). The Marano opinion quoted a Senate Report on the whistleblower legislation: 

“Regardless of the official’s motives, personnel actions against employees should quite 

[simply] not be based on protected activities such as whistleblowing.” Marano, 2 F.3d at 

1141 (alteration in original) (quoting S. Rep. No. 413, 100th Cong., 2d Sess. 16 (1988) 

(accompanying S. Rep. No. 508)).

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limits on the FELA’s coverage of a worker’s “injury or death resulting in 

whole or in part from [the employing railroad’s] negligence.” Id. at 703 

(quoting 45 U.S.C. § 51). Dissenters thought the CSX majority imposed too 

few limits on causation under the FELA. CSX Transp., 564 U.S. at 705–06 

(Roberts, C.J., dissenting) (concluding that the majority’s test amounts to 

but-for causation). Our use of CSX is not to borrow its definitions but only 

to support that limits on causation are inherent in statutes such as the FRSA. 

Here, we have even more than the common-sense limitation 

inherently present in the FELA. The burden-shifting framework refines our 

understanding of the “in whole or in part” language because the protected 

activity must be a contributing factor to the adverse personnel action. 49 

U.S.C. § 20109(d)(2)(A)(i); § 42121(b)(2)(B)(i). “Contributing” requires 

some degree of causation, though importing a traditional definition of 

“proximate cause” is not helpful. 

We examine other circuit courts of appeals’ decisions to identify 

where to draw this line. The Eighth Circuit has rejected the relevance of 

inextricably intertwined events to show a contributing factor. See, e.g.,

Neylon v. BNSF Ry. Co., 968 F.3d 724, 729–30 (8th Cir. 2020).5 Under that 

circuit’s interpretation, “the contributing factor that an employee must 

prove is intentional retaliation prompted by the employee engaging in 

protected activity.” Kuduk, 768 F.3d at 791. In the Eighth Circuit, it is this 

requirement that the employer have intentionally retaliated due to the 

employee’s protected act that makes the factual intertwining of events 

insufficient for contributing-factor purposes. Heim v. BNSF Ry. Co., 849 

5 Neylon cited a line of Eighth Circuit cases that rejected the inextricably 

intertwined standard: Dakota, Minnesota & Eastern Railroad Corp. v. U.S. Department of 

Labor Administrative Review Board, 948 F.3d 940, 946 (8th Cir. 2020), and Heim v. BNSF 

Railway Co., 849 F.3d 723, 727 (8th Cir. 2017). 

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F.3d 723, 727 (8th Cir. 2017). We already discussed that in this case, the ARB 

relied on the Eighth Circuit’s Kuduk opinion to state that an employee must 

prove intentional retaliation. The Fifth Circuit, though, has not yet decided 

whether a FRSA claimant must prove intentional retaliation as part of a prima 

facie case. See Epple v. BNSF Ry. Co., 785 F. App’x 219, 222–23 (5th Cir. 

2019). The DOL’s briefing in defense of the ARB decision in this case does 

not rely on an absence of evidence of intent. We conclude that we need not 

decide whether intent is an element.

The Seventh Circuit also requires more than a chain of events to 

demonstrate a contributing factor. See, e.g., Holloway v. Soo Line R.R. Co., 

916 F.3d 641, 644 (7th Cir. 2019); Koziara v. BNSF Ry. Co., 840 F.3d 873, 

877 (7th Cir. 2016). In that circuit, “a plaintiff alleging retaliation in violation 

of § 20109(a)(4) cannot point only to the sequence of events — an injury 

report followed by a later dismissal — to show that the complaint was a 

contributing factor in the adverse employment action.” Holloway, 916 F.3d 

at 644. At least some of that circuit’s precedents are explicit that “the 

‘contributing factor’ standard is lower than those applied in other antidiscrimination contexts,” but it is still necessary to show the employer acted 

with improper motive. Armstrong v. BNSF Ry. Co., 880 F.3d 377, 382 (7th 

Cir. 2018). Thus, like the Eighth Circuit, it appears the Seventh Circuit’s 

requirement of more than a mere chain or intertwining of events depends in 

part on the need to prove an employer’s intent.

The Sixth Circuit has insisted that some greater degree of causation is 

required, and not just proof of a chain of events. Lemon v. Norfolk S. Ry. Co., 

958 F.3d 417, 420 (6th Cir. 2020). That court considered an employee’s

argument that “without the injury report, he would not have lied to his 

supervisor about speaking to others and, without that falsehood and others 

discovered later, he would not have been fired.” Id. The Lemon court 

rejected this argument, saying that such a view of the contributing-factor 

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standard “eliminates causation from the liability inquiry.” Id. One way to 

interpret the Lemon opinion is that the court was deciding it did not need to 

plumb the depths of meaning within the term “contributing factor” because 

it was clear from the record “that the railroad would have fired him anyway 

due to his false statements.” Id. at 419. That appears to be reference to the 

same-action defense discussed earlier. § 42121(b)(2)(B)(iv).

The Lemon court also suggested that the employee’s contributingfactor argument did “too much[] and . . . too little.” Lemon, 958 F.3d at 420. 

To explain its position, it provided hypotheticals. On the one hand, the 

chain-of-events standard is too broad: “A woman quits her job after 

becoming frustrated over few promotion opportunities. Even though she 

could not have quit without taking the job in the first place, we would not say 

accepting the job was a contributing factor to her decision to leave it.” Id. 

On the other hand, it is too narrow: “[A]n employee . . . makes a pass at his 

manager while reporting an injury. Discipline in that case would clearly be 

caused — and justified — by the harassment, whether or not it occurred 

when he gave his boss the injury report.” Id. 

We close our review of other circuits with the Tenth Circuit’s helpful

analysisin BNSF Railway Co. v. U.S. Departmentof Labor, 816 F.3d 628 (10th 

Cir. 2016). There, an employer learned about violations of company policy 

through the employee’s updated injury report. Id. at 639. The employee 

could not “satisfy the contributing-factor standard merely by arguing that 

[the railroad] would not have known of his delays in reporting his injuries 

absent his filing the updated [r]eport”; nonetheless, the court found there 

was other substantial evidence to support that the updated report was a 

contributing factor to the adverse employment action. Id. at 639–40. “[T]he 

investigation that led to the firing was initiated before the investigation of 

whether [the employee] was responsible for the accident,” the employee’s 

supervisors allegedly discouraged his reporting, and the employment 

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termination occurred close in time to the protected activity. Id. Those 

additional facts allowed the employee to establish contributing-factor 

causation. Id. at 640.

Yowell distinguishes these other circuits’ cases on factual bases. It is 

true that the relevant precedents generally involve employees who were 

disciplined for misconduct that was distinct from a protected activity, such 

as for dishonesty or stealing. In our view, though, this argument is just 

another way to say that reporting of an injury was inextricably intertwined 

with learning that the report was late. Yowell also contextualizes his case as 

presenting a question of “whether . . . a railroad carrier may put requirements 

on how an employee must engage in FRSA protected acts, and then fire an 

employee for not following the carrier’s requirements when the employee 

engages in FRSA protected acts.” In essence, Yowell is all but arguing that 

a railroad cannot require timely reporting.

We see the narrow question before us as this: If an employee’s late, 

initially incorrect, but finally accurate report of a prior injury is what 

informed a railroad of an employee’s violation of the obligation to report 

injuries promptly, must that report be considered a contributing factor under 

the FRSA for any adverse action? In answering the question, we know that 

adverse employment action that is “due, in whole or in part,” to the 

employee’s engaging in a protected activity is prohibited. § 20109(a). 

Indeed, “even the slightest” influence from the protected activity will 

invalidate the employer’s adverse action. CSX Transp., 564 U.S. at 692 

(quoting Rogers, 352 U.S. at 506). FRSA liability does not arise, though, 

unless the employee can prove that his engaging in a protected activity was a 

contributing factor to the adverse employment action.

We have summarized a substantial amount of the caselaw on the 

contributing-factor standard to assist us in answering this narrow question as 

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perceptively as possible. There is consistent support in other circuits’

analysis for what the ARB decided in this case and little authority that 

disagrees. We do not disagree either. 

Under the FRSA, when an employee engages in a protected activity 

such as reporting a workplace injury, that employee is not insulated from 

what would otherwise be appropriate discipline for misconduct that becomes 

known to the employer at that time or during the course of the employer’s 

addressing the protected activity. In simple terms, a protected activity does 

not by itself shield an employee from the ramifications of workplace 

misconduct. 

We now examine the evidence in this case under the legal standard.

III. Applying the contributing-factor standard to this case

The final part of our analysis is to review the facts of this case. Yowell 

agrees that all he has, though of course he argues that all he needs, is that

FWWR learned of his failure to comply with his obligation to report timely 

all injuries when he made his delayed report, thereby making the protected 

activity of reporting an injury a contributing factor in his employment 

termination. There is nothing further, such as evidence that company 

representatives attempted to prevent his report or discouraged him from

reporting. 

The ARB accepted the following ALJ factual findings: Yowell was 

discharged “because he did not promptly or immediately report his right 

knee injury”; Yowell “failed to present any circumstantial evidence that 

[FWWR] used [Yowell’s] report of injury, or his medical treatment as a 

pretext to his discharge”; FWWR had not inconsistently applied its clearly 

expressed discipline policy of prompt reporting; and the evidence 

“demonstrably shows [Yowell] was terminated for the sole reason that he 

reported his work-related knee injury on August 29, 2017, one week after it 

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occurred and as a result, [FWWR] terminated [Yowell] for violating its 

employee handbook work and safety rule.” 

As the ARB held, an employee may not rely solely on the fact that a 

protected activity is what informed the employer of wrongdoing. Instead, the 

focus must be on the employer’s actions after learning of wrongdoing. There 

is unchallenged evidence in the record that it was not the fact of reporting an 

injury but the failure to report promptly an earlier injury that caused Yowell 

to be discharged. 

There was no error in the ARB’s decision to allow FWWR to end

Yowell’s employment for his failure to report his work injury promptly. 

The petition for review is DENIED.

Case: 20-60274 Document: 00515817679 Page: 16 Date Filed: 04/12/2021
No. 20-60274

17

E. Grady Jolly, Circuit Judge, concurring:

I concur with the understanding that the ultimate holding of this 

opinion is, simply and succinctly: The protected activity provision cannot be 

interpreted to shield an employee from proper disciplinary action when the 

employee breaches a valid, established, and unchallenged work rule, and no 

legal legerdemain can make it otherwise.

Case: 20-60274 Document: 00515817679 Page: 17 Date Filed: 04/12/2021