Paul W. Parker, as Personal Representative of the Estate of Curtis John Rookaird v. BNSF Railway Company, a Delaware Corporation

The Question Presented is: Whether AIR 21’s affirmative defense is satisfied where an employer proves protected activity played only a limited role along with non-protected conduct in an adverse personnel action, instead of proving the employee was not treated worse because of the protected conduct. The Federal Railroad Safety Act’s (FRSA) whistleblower provision expressly incorporates the two-part burden-shifting framework of the Wendell H. Ford Aviation Investment Act for the 21st Century (AIR 21) in providing, “[a]ny action brought under (d)(1) shall be governed by the legal burdens of proof set forth in section 42121(b).” 49 U.S.C. § 20109(d)(2)(A)(i). Under the AIR 21 framework, an employer violates the law if an employee demonstrates that protected conduct “was a contributing factor in the unfavorable personnel action alleged in the complaint.” 49 U.S.C. § 42121(b)(2)(B)(iii). A court may not order relief “if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that [protected conduct].” 49 U.S.C. § 42121(b)(2)(B)(iv). In Murray v. UBS Securities, LLC, 601 U.S. 23, 28 (2024) this Court confirmed, “[t]he framework was meant to relieve whistleblowing employees of the excessively heavy burden under then-existing law of showing that their protected activity was a