Mercier v. United States Department of Labor
850 F.3d 382
| 8th Cir. | 2017Background
- Mercier, a Union Pacific (UP) engineer and union rep, frequently reported safety violations and believed management retaliated against him through discipline.
- In June–July 2007 Mercier sent offensive text messages about a new employee (Symons); Symons reported harassment and UP suspended Mercier pending EEO action.
- Mercier agreed to a waiver to return to work (admitting an EEO violation, taking training, apologizing, and waiving future hearings for EEO breaches); he returned in August 2007.
- In October 2007 additional complaints arose (comments about underwear, alleged disparaging remarks), prompting EEO manager Schop to conclude Mercier violated the waiver and to terminate him in November 2007.
- Mercier filed a FRSA whistleblower claim (OSHA/ALJ/ARB), arguing the termination was pretextual retaliation for his safety reporting; the ALJ and ARB found he failed to show his protected activity was a contributing factor to the firing.
- On review, the Eighth Circuit affirmed under the APA standard, rejecting Mercier’s challenges to the statute-of-limitations handling, hearsay rulings, and the contributing-factor analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations / admissibility of pre-180‑day acts | Mercier: ALJ excluded or undervalued pre‑Sept 29, 2007 protected acts | UP: Only actions after Sept 29, 2007 (termination) are actionable; earlier acts are background | Court: ALJ correctly applied Morgan background‑evidence rule; pre‑cutoff acts admissible as context |
| Hearsay evidence before ALJ | Mercier: ALJ relied on hearsay (coworker statements) improperly | UP: Testimony offered to show effect on decision‑maker (Schop), not truth | Court: Admission proper — offered to show effect on Schop; not reversible error |
| Contributing‑factor causation standard | Mercier: ALJ applied wrong standard, effectively required proof termination "would not" have occurred absent reporting | UP: Termination based on EEO waiver violation, not safety reporting | Court: ALJ applied correct "a contributing factor" standard; substantial evidence supports finding safety reporting was not a contributing factor |
| Decision‑maker knowledge (element of prima facie case) | Mercier: Safety reports motivated termination; decision‑maker knew of reports | UP: Schop (decision‑maker) did not know of safety reporting; EEO independently concluded waiver breach | Held: Substantial evidence supports that Schop lacked knowledge of FRSA activity; plaintiff likely failed knowledge element |
Key Cases Cited
- National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (prior untimely acts may be admitted as background evidence for a timely claim)
- Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014) (FRSA prima facie and burden‑shifting framework; employer must show by clear and convincing evidence it would have acted absent protected activity)
- Maverick Transp., LLC v. U.S. Dep't of Labor, 739 F.3d 1149 (8th Cir. 2014) (standard of judicial review for DOL/ARB decisions under the APA)
- Gonzalez v. Barnhart, 465 F.3d 890 (8th Cir. 2006) (definition of substantial evidence and review limits)
- Wright Elec., Inc. v. NLRB, 200 F.3d 1162 (8th Cir. 2000) (deference to ALJ credibility findings; abuse‑of‑discretion standard for evidentiary rulings)
- Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784 (7th Cir. 2015) (statements offered to show effect on decision‑maker are not hearsay for truth of matter asserted)