Responding to my recent post about Metro North Railroad's Spuyten Duyvil train derailment, Colin O'Keefe of LXBN interviewed me regarding the culture of rail safety on our nations railroads, and the external and internal factors that make it so subpar. Rail employees are the eyes and ears of safety on the property, but recently Congress and OSHA's Whistleblower Directorate have confirmed a national railroad culture where managers retaliate against workers who report injurious hazards rather than treating such reports as an opportunity to eliminate the root causes of those hazards. So what needs to happen? Nothing less than a sea change in rail management culture, from a culture of 'shoot the messenger' retaliation to a culture of non-punitive risk remediation. From a 'discipline trumps safety' culture to a culture where 'safety trumps discipline.' Here is the interview:
Enough is enough. The time has come to transform the safety culture of our nation's railroads, starting with Metro North. Today's fatal crash of a Metro North passenger train in New York (the third derailment in recent months) is a wake up call that something must change, and that something is an unsafe workplace culture that gives lip service to safety while punishing the reporting of safety hazards and injuries.
Every day the operation of our nation's railroads threatens the safety of millions of passengers, employees, drivers at crossings, and homeowners along tracks where toxic and explosive materials are hauled. Safety should be the first and last consideration in everything a railroad does. But in 2007, Congress conducted hearings that exposed a railroad culture where managers react to worker reports of injurious safety hazards by retaliating against the worker while ignoring the root cause of the injury. In response, Congress gave whistleblower protection to railroad employees who raise such safety concerns, and allowed punitive damages against railroads who do not stop their abusive unsafe ways: the Federal Rail Safety Act.
Since then, the number of whistleblower claims against railroads has skyrocketed, to the point the railroad industry now is the worst in the nation when it comes to whistleblower complaints. In the past six years OSHA, judges, and juries have awarded millions of dollars in punitive damages in an attempt to force railroads to abandon their unsafe ways and adopt a truly safety friendly culture.
But still the railroads resist. Metro North is just one example. When I tried the first FRSA trial against Metro North in 2012, the jury responded with a verdict awarding $1 million in punitive damages, sending a clear message that the public will no longer tolerate a railroad culture where real safety takes a back seat to retaliation. And yet Metro North (and other railroads) persist in their old ways.
The time has come for a top to bottom transformation in the safety culture of our nation's railroads, and Metro North Railroad is a good place to start. If today's fatal passenger train derailment in New York does not trigger that change, nothing will. Here is the OSHA/FRA take on what that change of culture will involve, and here is my take on it.
A recent decision against Amtrak clarifies the Federal Rail Safety Act rights of injured employees to return to work over a railroad's objection.
After Amtrak locomotive engineer Jonette Nagra reported a work related injury, her treating neurosurgeon kept her out of work on temporary total disability. Eventually her doctor released her to return to work full duty with no restrictions, but Amtrak refused to give her a return to work physical because she had filed a FELA lawsuit alleging permanent disability and had refused Amtrak's offer to settle conditioned on the surrender of all her rights.
Administrative Law Judge C. Richard Avery found Amtrak's conduct violated FRSA subsections (a)(4) and (c)(2) and called for punitive damages. Judge Avery's Decision is notable for its further elucidation of railroad's workers FRSA right to return to work pursuant to a treating doctor's recommendation. Citing the ARB's Decision in Rudolph v. Amtrak, Judge Avery noted:
The ARB found that under (c)(2), attempting to return to work based on a treating physician's recommendation is an FRSA protected activity, and a railroad's refusal to permit an employee's return to work based on a physician's recommendation constitutes adverse employment action. . . .
When an employee seeks to return to work based on his or her treating physician's recommendation, the railroad's refusal to allow the employee to return to work constitutes discipline in violation of FRSA subsection (c)(2) unless the railroad's refusal is based on FRA medical standards for fitness for duty or secondarily, the railroad's medical standards for fitness for duty.
In this case there was no FRA medical fitness standard or Amtrak medical fitness standard that prevented Nagra from returning to work. In other words, Amtrak has no legal defense to the adverse action taken under subsection (c)(2) of the FRSA.
Judge Avery ordered Amtrak to give Nagra a return to work physical and to reinstate her if she passes it. And in light of Amtrak's indifference and disregard for its employee's FRSA protected rights, the Judge ordered Amtrak to pay punitive damages as well as attorney fees.
This is another example of the independence of FRSA complaints from FELA lawsuits or claims. The allegations pled in a FELA lawsuit or a worker's refusal to accept a railroad's FELA settlement offer will not excuse a railroad's violations of the FRSA. For the full text of Nagra v. National Railroad Passenger Corp., click here.
An important district court decision spells out how to analyze discipline based on allegedly "false" or "late" injury reports. And also you can add it to the growing list of cases rejecting the hapless "election of remedies" defense still being raised by railroads in Federal Rail Safety Act cases.
Election of Remedies
After Track Department employee Thomas Ray reported a work related injury, the Union Pacific Railroad charged him with the late reporting of a false injury, conducted the usual show trial, and fired him. His union pursued a Public Law Board arbitration under the Railway Labor Act, and almost three years later the arbitrator reinstated Ray with no back pay.
Meanwhile, Ray had filed a FRSA Section 20109 whistleblower protection complaint and opted to go into federal district court. Union Pacific filed a motion for summary judgment, arguing the case should be dismissed because the union's RLA arbitration constituted an "election of remedies."
U.S. District Judge Robert W. Pratt rejected the Railroad's "unconvincing" arguments. He endorsed the ARB's Mercier decision and found it is entitled to Chevron deference. He also endorsed the Reed and Ratledge federal court decisions, ruling that an employee's "FRSA claims are not barred by the election of remedies provision of the FRSA merely because he elected to pursue an enforcement action under the RLA for rights that substantially arise under the collective bargaining agreement."
False and Late Injury Reports
Judge Pratt's well reasoned decision also is notable because it spells out how to analyze whether an employee's injury report is "false" or "dishonest" for FRSA purposes:
even assuming the employee was dishonest with the Railroad on one occasion or another, the relevant inquiry remains whether, at the time he reported his injury, he genuinely believed the injury he was reporting was work-related. . . the focus of the good faith requirement when reporting injuries is on the reporting itself, not on all of an employee's interactions with his employer. . . . Union Pacific's arguments that it had "ample basis to discipline" Ray and "acted reasonably in finding Ray guilty of late reporting and dishonesty" misses the mark. This is not a PLB matter but rather an action under the FRSA, which evaluates only whether Ray's filing of a work-related injury report was a contributing factor in the Railroad's adverse disciplinary decision. Indeed, even if dishonesty and late reporting comprised 99.9% of the reason Union Pacific discharged Ray, his FRSA actions would still be viable because his injury report could still have been "a contributing factor" in the disciplinary action.
This confirms the "in whole or in part, even to the slightest degree" causation standard of the FELA applies with equal force to the FRSA. And Judge Pratt stressed "contributing causation for purposes of the FRSA analysis is presumed in situations where the employee's protected activity and the adverse action are inextricably intertwined." And such is the case in false or late injury reporting situations: "if Ray had not reported the alleged work-related injury, Union Pacific would not have undertaken an investigation into either the honesty of Ray's statement about his injury or the timeliness of his injury report, and he would not have been terminated."
Bottom line? Under the FRSA, there is no such thing as "false" or "late" injury reports. When the railroad's decision to discipline is set in motion by an employee's reporting of an injury, FRSA causation is presumed. And managers who fire a worker because his injury report was "false" or "late" can be held personally liable for violating the FRSA. For the full text of Ray v. Union Pacific Railroad Co., click here.
It's official: railroad employees who follow their treating doctor's orders not to work cannot be disciplined for those absences, even if the absence is due to an off-duty medical condition. Why? Because Bala v. PATH now is the law of the land, having just been affirmed in full by the highest appeals tribunal in the U.S. Department of Labor, the Administrative Review Board. The ARB's ruling applies to railroads nationwide, and every OSHA Whistleblower office in the country now is required to enforce it.
A year and a half ago, Judge Timlin stunned the railroad industry when she ruled in Bala v. PATH:
the purpose of the FRSA is to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents. . . . in enacting the FRSA, Congress stated that 'employees should not be forced to choose between their lives and their livelihoods.' . . . After reviewing the FRSA's text and purpose, I find it clear that Section 20109(c)(2) exists not only to encourage employees suffering on-the-job injuries to report unsafe conditions to their superiors without fear of reprisal, but also to discourage sick or injured workers from returning to duty while their impairment poses a threat to the safety of railroad passengers and fellow employees. I thus find that Section 20109(c)(2) applies equally to treatment plans arising out of on-duty and off-duty injuries.
In other words, safety trumps discipline. PATH and the American Association of Railroads disagreed, and filed an appeal arguing that discipline trumps safety.I filed a brief endorsing Judge Timlin's interpretation of FRSA Subsection (c)(2), and the United States Solicitor of Labor weighed in with an amicus brief confirming that FRSA Section (c)(2) protects ALL medically impaired railroad employees who follow their doctor's orders not to work, even workers who are injured off the job or have a non-work related medical condition.
In response,the ARB's Decision fully endorses Judge Timlin's interpretation, holding: "Subsection (c)(2) of 49 U.S.C. 20109 affords railroad employees protection from discipline when following treating physicians' orders that stem from off-duty injuries." The ARB stressed that both the plain language of Subsection (c)(2) and the FRSA's legislative history mandates that conclusion. And the ARB emphatically rejected the AAR's argument that such an application of (c)(2) will interfere with the ability of railroads to discipline employees:
nothing in Section 20109 precludes an employer from disciplining an employee for excessive absences. The only limitation set out in (c)(2) is that an employee cannot be disciplined because he/she is complying with the orders of treatment plan of a treating physician. . . . The express statutory language set out in Sections (c)(1) and (2), as well as the legislative history reflecting Congress's broad concern over safety in the railroad industry and protection of injured railroad workers, makes clear that Congress did not intend to foreclose from protection railroad workers who "follow orders or a treatment plan of a treating physician" even when the injury they are being treated for occurred off-duty.
The bottom line is, if an employee notifies a railroad his treating doctor has ordered him not to work, the railroad cannot use that absence for disciplinary purposes. And it doesn't matter if the absence is due to sickness, an off-duty injury, or an on-duty injury. From now on, any railroad that disciplines employees for such absences will pay a steep price in FRSA damages and attorney fees. For all the briefs and decisions regarding Subsection (c), click here. For more information on all the elements of the Federal Rail Safety Act, go to Rail Whistleblowers Library.
Question: What is the surest way for a railroad to get hit with punitive damages?
Answer: Base a disciplinary charge on an employee's FRSA complaint.
Railroads that have tried this bone headed move are now 0-3, and OSHA has slammed them with punitive damages every time.
The latest example comes from Pan Am Railways. Subsection (a)(3) of the Federal Rail Safety Act declares that when a worker files a FRSA Complaint with OSHA (or cooperates with OSHA's investigation into a co-worker's FRSA complaint), it is a protected activity that cannot be used in whole or in part for disciplinary purposes. After reporting an ankle injury while stepping down from a train in a Yard, Jason Raye was charged with violating a safety rule. The usual kangaroo hearing was held during which he described how the ankle injury occurred. He was found guilty and disciplined.
Raye then filed a FRSA complaint with OSHA's Whistleblower Office in which the description of how his ankle was hurt differed somewhat from his testimony at the Company trial. Some manager then got the bright idea of charging him again, this time for lying to a government agency, a firing offense. Another hearing was held, after which the Company dropped the charge.
But the damage was done, and Raye amended his FRSA Complaint to include a subsection (a)(3) violation. OSHA agreed, and ordered Pan Am Railways pay $50,000 in punitive damages and emotional distress. OSHA's explanation for why punitive damages are mandated for subsection (a)(3) violations speaks for itself:
The acts of accusing an employee of lying to OSHA after he filed an FRSA complaint, charging him with violating safety rules that if he was found guilty of could result in his termination, and conducting trial proceedings, have a chilling effect on employees and would to dissuade others from asserting their rights under FRSA. Even if the charge is later dropped, as it was after the hearing in this case, that does not remedy this chilling effect, as the act of bringing the charge against an employee affects all of the Railroad's employees' willingness and ability to exercise their most basic rights under FRSA.
Once a FRSA allegation has been made to OSHA, it is OSHA's responsibility, not the Railroad's, to establish the truth of assertions made by both parties. Under these circumstances the Railroad's use of an internal, management run disciplinary hearing to establish facts that are the subject of a federal OSHA investigation is overreaching at best and interfering with a federal investigation at worst. Regardless of the Railroad's intent, such a heavy handed approach would clearly chill other employees from filing similar claims.
The bottom line for railroad managers everywhere? Don't even think about using a FRSA complaint for disciplinary purposes, unless you enjoy the prospect of paying punitive damages out of your own pocket. For the full text of OSHA's Merit Finding in Raye v. Pan Am Railways, Inc., click here. The other two subsection (a)(3) cases are Blocker v. Metro North Railroad, and Young v CSX Transportation.
Every railroad has them. Vague safety rules that are triggered only when a worker reports an injury. In a blistering Decision, a veteran Administrative Law Judge spells out why the use of such rules mandate the award of Federal Rail Safety Act punitive damages.
Union Pacific employee Brian Petersen was leaning against his car in a company parking lot when the tire of a co-worker's car ran over his foot. When Petersen reported the injury, the Railroad charged him with safety rule violations and fired him. After a three day trial, Administrative Law Judge Pamela A. Lakes ordered the immediate reinstatement of Petersen along with $325,000 in make whole remedy damages. In the words of Judge Lakes:
the Railroad's safety rules are written in such a manner that anyone who is injured and reports it will have violated a least a part of one or more of them. For example, Rule 1.1.2 (Alert and Attentive) requires that employees be careful to prevent injuring themselves or others; Rule 70.1 (Safety Responsibilities) requires that employees be responsible for their personal safety and take every precaution to prevent injury to themselves; Rule 70.5 (Protection of Body Parts) prohibits employees from placing any part of their bodies in a position "where they might be struck, caught, pinched or crushed"; Rule 1.6 (Part 1, Careless of Safety) relates to a rules infraction by employees that "demonstrates a willful, flagrant, or reckless disregard for the safety of themselves"; and Rule 1.6 (Part 2, Negligent) precludes behaviors or actions by an employee that "cause, or contribute to, the harm or risk of harm to the employee." The Railroad charged Petersen with violating these rules because he "may have failed to take precaution to avoid having [his] feet run over. . . resulting in [his] sustaining a possible injury to [his] feet and back." Thus, these Rules in effect punish an employee for being injured. The Railroad cannot argue that Petersen was being disciplined for being injured as opposed to reporting the injury, because that is a distinction without a difference.
there would clearly be a chilling effect on the reporting of injuries if railroads were permitted to discipline employees for not avoiding injury, as it did here. . . . Even though I have handled multiple whistleblower cases since I began employment with the Office of Administrative Law Judges in 1994, I have never awarded punitive damages before. However, the actions by Union Pacific have been so egregious in this case, and Union Pacific has been so openly blatant in ignoring the provisions of the FRSA, that I find punitive damages are necessary to ensure that this reprehensible conduct is not repeated. Indeed, it would be difficult to envision a case that reveals a more blatant disregard for the whistleblower provisions of the FRSA than the instant case, which involves retaliation against an employee for reporting that his feet were run over while he was leaning against his car in a parking lot. The position taken by Respondent in the instant case is troubling, to say the least, and involves an egregious degree of culpability.
The Judge ordered Union Pacific to immediately reinstate Petersen and pay $325,000 in lost wages, emotional distress, and punitive damages. And so it goes, and will continue to go, for as long as railroads deny the reality of the FRSA. For the full Decision in Brian Petersen v. Union Pacific Railroad Co.,click here.
The message of the Federal Rail Safety Act is clear: "safety trumps discipline." And until railroads fully embrace that new reality, the number of FRSA complaints will continue at a record pace.
Williams v. Grand Trunk Western Railroad is the latest confirmation of this new reality. In addition to elucidating the employee friendly standards governing any motion to dismiss a FRSA complaint, Williams underscores the FRSA's robust protection of railroad workers who follow their doctor's orders to remain off work due to any medical condition.
After locomotive engineer Williams took days off from work due to a medical condition that interfered with his ability to safely perform his job, the Railroad fired him for excessive absenteeism. When Williams filed a FRSA complaint, the Railroad asked Chief Administrative Law Judge Stephen L. Purcell to dismiss the complaint because the medical condition was not work-related. Chief Judge Purcell soundly rejected that argument:
I find that the statutory language of Section 20109(c)(2) protects employees who are following a physician's treatment plan for illnesses or injuries, regardless of whether they are work-related, inasmuch as such an interpretation flows from the plain language of the statute and advances the overall safety purposes of the FRSA.
When it is the medical judgment of a treating physician that a patient is not physically capable of performing his or her work-related duties because of an injury or illness, that individual should not have to choose between, on the one hand, following the physician's advice to abstain from working or, on the other hand, jeopardizing the health and safety of the employee's fellow workers and the traveling public by working because the employee may be fired. . . . A railroad cannot simply fire an employee for relying on his treating physician's opinion that he was too ill to work. Doing so would thwart the very purpose of the FRSA to promote safety and reduce accidents and incidents.
This is in line with the ALJ's Decision in Bala v. PATH and with the spirit of the ARB's interpretation of Section (c) in Santiago v. Metro North Railroad. Thanks to the FRSA, safety now trumps discipline in the railroad industry.
When airline pilots feel medically unfit to fly, they have a right to stand down and seek medical attention without any adverse consequences. Thanks to the Federal Rail Safety Act, locomotive engineers (and all other railroad workers) now enjoy the same right to protect themselves, their co-workers, and the public.
When Locomotive Engineer Lonnie Smith became dizzy with blurred vision, he informed his supervisor Senior Terminal Manager Steven Wilson it was unsafe for him to continue working and requested medical attention. Manager Wilson responded by threatening Smith with discipline if he did not continue working.
Administrative Law Judge Lee J. Romero, Jr. heard all the evidence, and found such conduct to be an egregious violation of the FRSA that required the imposition of punitive damages. Here are some excerpts from the Judge's 82-page Decision:
Complainant engaged in protected activity by: reporting his illness which was significantly aggravated by his working conditions; requesting medical treatment or care which was denied, delayed, or interfered with by the Railroad; and expressing his belief that it was unsafe for him to continue performing his work while ill, which he reasonably believed constituted a violation of the FRA safety regulations.
In the instant case, punitive damages are warranted for several reasons. Union Pacific and Smith's manager were egregiously reprehensible resulting in retaliatory acts which caused Smith to suffer physical and emotional harm. The manager threatened and coerced Smith into continuing to work despite repeated statements by Smith that he could not safely work because of his illness symptoms and requests to seek medical care. Moreover, the Railroad's actions also put Smith’s co-workers and the public in harms way by requiring him to continue to work under such dire circumstances. I find that these actions demonstrate a complete indifference to, and a callous disregard for employee health and safety.
Completion of work was more important to Manager Wilson than an employee's request for medical care and treatment. . . . Given this factual scenario, I find Union Pacific’s conduct to be outrageous and unsympathetic to the rights of its workers. Therefore, I find it proper to award punitive damages to punish Union Pacific’s disregard for its worker’s rights and to deter similar conduct in the future.
The Judge not only ordered the Railroad to pay punitive damages, he also ordered Manager Wilson to pay additional punitive damages to Smith. For the full text of Lonnie Smith v. Union Pacific Railroad Company, click here. For the leading briefs explaining why the FRSA grants railroad employees the right not to work when medically unfit, see Complainant Bala's Brief in Bala v. PATH and the United States Department of Labor's Amicus Brief in support of Bala.
Yet another federal district court judge has rejected rail management's election of remedies defense to Federal Rail Safety Act whistleblower retaliation complaints. You can add Ratledge v. Norfolk Southern Railway Company to the growing list of federal court decisions dope slapping the railroads who raise such a hapless argument: see Solis, Reed, and Battenfield.
Ratledge concerns an injured conductor who was fired based on bogus allegations by Norfolk Southern that he falsified his injury. While Ratledge's union was pursuing his Railway Labor Act remedies, he also filed a FRSA retaliation complaint with OSHA. After OSHA ruled in his favor and Norfolk Southern objected, Ratledge opted for a FRSA jury trial in federal court. The Railroad then moved to dismiss the FRSA complaint, arguing that the FRSA's Election of Remedies provision barred Ratledge from pursuing both his RLA and FRSA remedies.
The U.S. Department of Labor weighed in with the court, reaffirming its position that the FRSA's election of remedies provision does not bar railroad workers from simultaneously pursuing RLA CBA and FRSA whistleblower remedies. The United States District Court agreed, and emphatically rejected the Railroad's argument. Here are some excerpts from the Decision:
The word “another” in subsection (f) implies the second provision of law should be similar in kind to § 20109. . . . With the disjunctive “or” in subsection (h), the statute distinguishes between “Federal or State law” and rights or remedies held “under any collective bargaining agreement.” More succinctly stated, § 20109 distinguishes between legal remedies and CBA remedies. . . . the Court concludes NSR’s interpretation of § 20109(f) conflicts with the statutory language, its history and prior iterations, and relevant legislative materials. Plaintiff did not waive his FRSA retaliation rights when he entered RLA arbitration.
In fact, the federal court found the language and intent of the FRSA to be so clear that application of Chevron agency deference was not even necessary: "The Court concludes any ambiguity in the phrase “another provision of law” is resolved by traditional tools of statutory construction, including the relevant statutory context."
The more railroads raise this bogus defense, the stronger the precedent against it gets.
Thanks to the Federal Rail Safety Act, railroads can no longer interfere with the medical treatment of injured employees. That fact is being reinforced with punitive damage awards against railroads who ignore this new reality.
In the landmark decision of Santiago v. Metro North Railroad, the Administrative Review Board held that FRSA "Section 20109(c)(1) bars a railroad from denying, delaying, or interfering with an employee's medical treatment throughout the period of treatment and recovery from a work injury." The ARB also held that a prima facie FRSA violation is established "the instant that the railroad carrier directly or indirectly inserts itself into the process and causes a denial, delay, or interference with the medical treatment." Such a railroad is liable under the FRSA unless it proves "by clear and convincing evidence that the result would have been the same with or without the railroad's interference" with the medical treatment.
The ARB remanded Santiago to Administrative Law Judge Geraghty for an application of those legal standards to the facts. Judge Geraghty's Remand Decision confirms that Metro North did indeed violate the FRSA when it interfered with Santiago's medical treatment based on the decision of its Medical Department to classify his injury as non-occupational, a decision that "was contrary to the objective diagnostic tests, medical records, ongoing symptoms, and the treating physician's opinion."
Here are some of Judge Geraghty's findings regarding punitive damages:
I find that the circumstances of this case warrant an award of punitive damages. The recent whistleblower amendments to the FRSA were created in response to Congress' concern that some railroad policies reduce employees' willingness to report work-related injuries. The actions of Metro North are exactly what the amendments were intended to prevent. . . . Metro North's reckless indifference and disregard for its responsibilities under the newly enacted Section 20109(c) of the FRSA is reprehensible. Following the effective date of Section 20109(c), Metro North did not instruct its Medical Department staff to change anything nor did it instruct them not to delay, deny, or interfere with the medical treatment of an employee's treating doctor. . . . Metro North's interference resulted in a four month delay in Santiago's treatment, prolonging his pain . . . Based on the foregoing, I conclude that an award of punitive damages is appropriate in this case.
The new reality is that the instant a railroad medical department directly or indirectly interferes with the medical treatment of an injured employee, the railroad will be on the hook for punitive damages, plus any other FRSA damage elements such as emotional distress.
Another federal district court judge has rejected rail management's bogus "election of remedies" defense to Federal Rail Safety Act whistleblower retaliation complaints.
Reed v. Norfolk Southern Railway Company concerned a trackman who was fired after reporting an injury. While the Brotherhood of Maintenance of Way Employees union was representing him for that disciplinary action, Reed also filed a complaint with OSHA's Whistleblower Office alleging the Railroad's conduct violated the FRSA. When Reed opted for a FRSA jury trial in federal court, the Railroad moved for summary judgment, arguing that the FRSA's Election of Remedies provision barred him from pursuing both his RLA and FRSA remedies.
The United States District Court soundly rejected the Railroad's argument. Here are some excerpts from the Decision:
a CBA is not "another provision of law" as contemplated by the FRSA's Election of Remedies provision
grievances filed pursuant to a collective bargaining agreement are not encompassed by the phrase "another provision of law" in the Election of Remedies provision of the FRSA
the Department of Labor has consistently taken the position that the FRSA Election of Remedies provision is not triggered by an employee pursuing arbitration under a collective bargaining agreement because a collective bargaining agreement is a private contract and not another provision of law . . . [and] the Department of Labor's interpretation is reasonable
The railroads keep trying to sell their discredited Election of Remedies argument, but no one is buying it.
A new web page for all things concerning the rights of railroad whistleblowers is now available on line. Go to "Rail Whistleblower Resources" for everything you need to know about the Federal Rail Safety Act. In addition to a "Summary of Rail Whistleblower Protection" and "Special FRSA Legal Standards," you will find the leading FRSA case law divided by subsection and organized by federal, ARB, ALJ, and OSHA decisions. There also are sections on Election of Remedies, Punitive Damages, Attorney Fees, and much more. To receive automatic updates on breaking FRSA developments, enter your email address in the free subscription box at Train Law Blog.
"If you see something, say something, except if you work for the railroad . . . " That was the theme of the nation's second FRSA jury trial, resulting in a $1.5 million verdict for two workers who were disciplined after reporting a safety hazard. This was a FRSA only claim, and combined, the two workers lost one day of work due to the disciplinary finding against them.
In March 2010 PATH signalmen Jason Brig and John Buchala were working along the right of way at dusk. Without warning, an unlit work train going 40 mph entered their work site, forcing them to jump out of the way at the last second. When they complained about the unsafe equipment and procedures that allowed such a close call to happen, instead of thanks they were charged with "unsafe work practices," tried, and found guilty.
Neither sustained any FELA injury, and they only lost a single day’s pay between them, but they wanted to stand up for their FRSA-protected whistleblower rights. They filed a FRSA only complaint, and opted for a jury trial in federal court. My colleague and fellow ARLA Board member Marc Wietzke tried the case in Manhattan, and on June 28th the jury returned a verdict awarding each worker $500,000 in punitive damages plus $250,000 in compensatory damages. Even when the punitive damages are reduced to the statutory cap of $250,000, each man still will receive half a million dollars for discipline that resulted in almost no economic loss. And that does not include the fees and costs the Railroad will have to pay their attorney. And the judge has agreed to order the Railroad to expunge the records of both workers.
A pattern is emerging in these FRSA jury trials. In the first trial, Barati v. Metro North, the Railroad fired Andy Barati, reinstated him three months later, and eventually paid his lost wages and expunged his record. Nevertheless, the jury responded with $1 million in punitive damages. In this second trial, the disciplined workers lost almost no time and little economic loss, and the jury responded with $500,000 in punitive damages for each plus a significant emotional distress award.
So now the first two juries to hear FRSA cases have spoken. And the message they sent to railroads nationwide is loud and clear: the public will not tolerate any violations of the FRSA, and railroads who ignore the FRSA will be slammed with the maximum amount of punitive and emotional distress damages.
So hats off to Marc and his two clients for standing up and delivering another body blow to the railroad culture of retaliation. For the jury charge and verdict in Barati, click here and here. For the jury instructions and verdict in Brig & Buchala, click here and here.
The federal courts and Administrative Review Board now are moving in lock step regarding the employee friendly legal standards applicable to FRSA complaints. Building on the landmark Araujo v. New Jersey Transit Rail 708 F.3d 152 (3rd Cir. 2013) federal circuit court decision, the ARB in Hutton v. Union Pacific Railroad Company confirms that the FRSA's "contributing factor" element is satisfied whenever the chain of events leading to an employee's discipline would not have begun without the employee reporting an injury. In other words, if the discipline is based on an investigation that was begun only as a result of the employee reporting an injury, then the reporting of the injury constitutes a "contributing factor."
In Hutton, the chain of events that led to the employee's termination would not have commenced if the employee had not filed an injury report. The ARB ruled that fact alone is enough to satisfy the "contributing factor" element. And in so doing, the ARB also underscored that no proof of retaliatory animus is required in FRSA cases, and that a railroad's "legitimate business reason" is not a defense. Here are some excerpts from this important ARB decision:
Although the ALJ stated that the chain of events leading to Hutton’s termination would likely never have occurred had he not reported his injury, the ALJ determined that this was not the test for contributory factor under the FRSA. This was error. The ARB has repeatedly ruled that under certain circumstances a chain of events may substantiate a finding of contributory factor. Compounding his error, the ALJ determined that no witness demonstrated “animosity” against Hutton, suggesting that Hutton was required to prove retaliatory animus or motive. Neither motive nor animus is a requisite element of causation as long as protected activity contributed in any way – even as a necessary link in a chain of events leading to adverse activity.
The circumstances presented here are analogous to the facts in DeFrancesco v. Union RR Co., in which we considered the application of the FRSA to the discharge of an employee who reported a work-related injury. In DeFrancesco, the employee reported his injury, which led to an investigation into his disciplinary history and prior injury reports, and the investigation resulted in the employee’s suspension. . . . we held that if DeFrancesco had not reported his injury, the company would not have conducted the investigation that resulted in the discipline. We concluded that DeFrancesco’s injury report was a contributing factor in his suspension, and we remanded the case to the ALJ to determine whether the respondent could show by clear and convincing evidence that it would have suspended DeFrancesco in the absence of his protected activity
The ALJ appeared to base his dismissal solely on a finding that Hutton committed a dismissible offense (failure to attend investigative hearing), similar to the legitimate business reason burden of proof analysis that does not apply to FRSA whistleblower cases. Under the FRSA whistleblower statute, the causation question is not whether a respondent had good reasons for its adverse action, but whether the prohibited discrimination was a contributing factor “which, alone or in connection with other factors, tends to affect in any way” the decision to take an adverse action.
Bottom line is, no matter what the forum, railroads cannot escape the application of the FRSA's extremely employee friendly legal standards.