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The Source for Railroad Injuries & Whistleblower Protection

FRSA Statute of Limitations Clarified

Posted in Federal Rail Safety Act

In a case of first impression, a federal court holds the only statue of limitation that applies to Federal Rail Safety Act whistleblower cases is the 180 day window following an adverse action, and that no other statute of limitation applies to the filing of a de novo complaint in federal court.

In Gary Despain v. BNSF Railway Company, the Railroad fired Despain after he reported an injury. Over five years later, while the case was still pending at the Administrative Law Judge level, Despain opted to file a complaint in federal court. The Railroad moved to dismiss the case, arguing federal law’s four year default statute of limitation applies.

In a well reasoned decision, U.S. District Judge Neil V. Wake soundly rejected that argument. Judge Wake noted Section 20109 contains its own 180 day limitation period, and the four year statute of limitations “applies only in the absence of other limitations periods.” He then went on to hold because the employee’s whistleblower action is substantively the same whether in the Department of Labor or in federal court, “only one limitations period applies: the 180-day period governing the employee’s initial filing” with OSHA.

The take away? An employee has the absolute right to file a complaint in federal court as long as: (1) he files a complaint with OSHA within 180 days of an adverse action, (2) the DOL did not issue a final decision within 210 days after the filing of the complaint, and (3) there has been no DOL final dismissal on the merits.

Here is the full text of Gary Despain v. BNSF Railway Company. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

Spotlight on CSX Retaliation

Posted in Federal Rail Safety Act

You can tell a lot about a workplace culture by how managers react to employee safety complaints. Enlightened managers welcome safety complaints, benighted managers suppress them. Enlightened managers view such complaints as a valuable opportunity for improvement, and underscore the first importance of safety by publicly thanking those employees. Benighted managers view such complaints as a personal attack. To them, protecting their insecure egos is more important than safety. And so they lash out, finding a way to retaliate in order to broadcast what happens when workers have the audacity to question their competence.

Now comes OSHA with a Merit Finding against CSX that serves as a lesson for such benighted railroad managers. When IBEW member JJ Giuliano got fed up with the failure of CSX managers at the Selkirk Shop to address longstanding safety complaints, he delivered a letter to Superintendent Daniel Lisowski listing various violations of FRA safety regulations. In OSHA’s words, it was “a very strongly worded letter” identifying “serious safety hazards” and noting CSX’s managers “daily ritual of placing production over all else, such as shop cleanliness, locomotive quality, safety of its employees, and safety of the communities its trains pass through.”

What was the response of the CSX managers? Instead of thanking Giuliano, a few days later they cited him for not using a crosswalk board and imposed a ten day suspension. This despite the fact another employee who they saw doing the same thing was not cited. No one else had been suspended for an O test before, and they ignored Giuliano’s clean disciplinary record when imposing the suspension.

Giuliano filed a classic Federal Rail Safety Act Complaint. CSX responded by arguing Giuliano’s letter was not protected under the FRSA, a contention OSHA found “incredible.” OSHA’s investigation found “reasonable cause to believe CSX violated the FRSA” and that punitive damages are appropriate because “CSX Transportation, Inc. has demonstrated a pattern of retaliation against employees who file FRSA complaints.” OSHA ordered CSX to:

  • pay punitive damages, plus all the attorney’s fees of Guiliano’s attorney;
  • have all managers at CSX’s Selkirk Shop receive OSHA’s FRSA training;
  • provide all new hires with information on their FRSA rights;
  • expunge the suspension from Giuliano’s employment records;
  • not retaliate against Giuliano for pursuing the FRSA complaint; and
  • post in a Notice at Selkirk Shop a Notice confirming CSX will not retaliate or discriminate against employees who file FRSA complaints.

All CSX employees can thank OSHA for shining a spotlight into the dark culture of CSX retaliation. Those of us who believe in rail safety can only hope that one day all benighted railroad managers will finally see the light.

Here is the full text of OSHA’s Merit Finding in Giuliano v. CSX Transportation, Inc. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

Guideposts For FRSA Punitive Damages

Posted in Federal Rail Safety Act

What are the guideposts for determining the amount of punitive damages in Federal Rail Safety Act cases? According to the 10th Circuit’s decision in BNSF Railway Company v. US DOL ARB [Cain], there are three guideposts whose application is informed by the text of Section 20109:

The first and most important indicator of the reasonableness of a punitive damages award is the degree of reprehensibility of defendant’s conduct. Second, courts consider the disparity in the ratio between the actual or potential harm suffered by the plaintiff and the punitive damages award. And third, courts consider the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

Reprehensibility

The text of Section 20109 spells out the prohibited conduct that subjects railroads to punitive damages. Such conduct includes any discipline or discrimination against employees who: report work-related injuries, refuse to violate FRA safety rules, report hazardous safety conditions, file whistleblower complaints, or follow their doctor’s medical treatment plan for injuries arising during the course of employment. And the following non-statutory standard for punitive damages conduct also applies: a “reckless or callous disregard for the employee’s rights, as well as intentional violations of federal statutes.” Compelling evidence of any such prohibited conduct by a railroad can justify imposing the statutory maximum amount of punitive damages.

Ratio

The 10th Circuit Court noted “there are no rigid benchmarks that a punitive damages award may not surpass.” While a single-digit punitive-to-compensatory-damages ratio is certainly acceptable, “higher ratios” are appropriate where “a particularly egregious act has resulted in only a small amount of economic damages.”

Comparable Cases

Since Congress has authorized $250,000 as the maximum amount of punitive damages, a court should “consider this statutorily authorized amount as well as its own comparable cases awarding punitive damages in determining what amount of punitive damages are justified.”

The take away? The amount of punitive damages is not dictated by any rigid punitive-to-compensatory-damages ratio. Rather, it is driven by the nature of the conduct itself, and egregious violations call for maximum punitive damages even when the economic damages are minimal. Here is the full text of BNSF Railway Co. v. US DOL ARB [Cain]. For more on Section 20109 of the FRSA, go to the Rail Whistleblower Library.

Bad Faith Refusal to Allow Employee to Return to Work

Posted in Federal Rail Safety Act

A recent district court case vindicates OSHA’s position that a railroad’s bad faith refusal to allow an employee to return to work is an adverse action violating Federal Rail Safety Act Section 20109.

This is from OSHA’s Summary explaining its Final Rules for FRSA cases:

OSHA believes that the safe-harbor in subsection (c)(2) requires that the railroad’s refusal to allow an employee to return to work be in good faith. A retaliatory refusal to permit an employee to return to work cannot properly be regarded as made “pursuant to” FRA’s or the carrier’s own medical standards for fitness for duty under the statute. Any other interpretation of the provision would permit a railroad carrier to refuse to allow an employee to return to work in retaliation against the employee for reporting the injury (which would violate (a)(4)) or as a means for extending retaliatory discipline prohibited by (c)(2). Evidence that a refusal to allow an employee to return to work is based on carrier standards that are not recorded in the carrier’s official policies, not uniformly applied, or not medically reasonable may help to demonstrate that the refusal is due not to a legitimate safety concern of the railroad carrier by rather is motivated by retaliatory intent.

Fast forward to the federal court decision in Rader v. Norfolk Southern Railway Company, where supervisors delayed an injured employee’s return to work for 43 days after the employee’s treating doctor and the railroad medical department cleared him to return to work. The district judge held a reasonable jury could find such a bad faith delay to be in “reckless or callous disregard” of the employee’s rights, requiring an award of punitive damages.

Here is the full text of Rader v. Norfolk Southern Railway Company. For more on Section 20109 of the FRSA, go to the Rail Whistleblower Library.

When the FRSA’s 180 Day Window Opens

Posted in Federal Rail Safety Act

It is important to know when the 180 window for filing a Federal Rail Safety Act complaint opens. This is from OSHA’s Summary explaining its Final Rules for FRSA cases:

To be timely, a complaint must be filed with OSHA within 180 days of when the alleged violation occurs. This is considered to be when the retaliatory decision has been both made and communicated to the employee. In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer’s decision to take an adverse action, not when the employee learns of the retaliatory nature of the action.

This means railroad workers who are subjected to an adverse action after engaging in protected activity must assume that adverse action is retaliatory and file a FRSA complaint with OSHA within 180 days. For example, if a worker raises a safety concern, and then is subjected to a disciplinary charge, that worker must assume the charge is retaliatory and file a FRSA complaint no later than 180 days after learning of the charge.

Now comes a district court decision confirming that once the 180 day window has closed, it cannot be reopened for the same adverse action. In Sweatt v. Union Pac. R.R. Co., 2016 U.S.Dist LEXIS 3609 (ND Ill January 12, 2016), the Railroad refused to pay for surgery necessitated by an employee’s work related injury. Well over 180 days later, the employee repeated his demand that the Railroad pay for the surgery and the Railroad again refused. It was only after the second denial for the same surgery that the employee filed a FRSA complaint with OSHA. The Court rejected such an attempt to reopen the 180 window because the Railroad’s second denial “changed nothing” and “did not injure the employee afresh.”

So, employees must be aware that a 180 window opens for each “discrete act” of retaliation. Such discrete acts include the filing of disciplinary charges, suspension, termination, failure to promote, denial of transfer, or refusal to hire. The window opens when the employee learns of such a discrete act, and closes 180 days later. And once closed, the window cannot be reopened for that same adverse act.

What is the take away for railroad workers? Whenever they are targeted for adverse actions after engaging in protected activity, they should consult with a knowledgeable union rep or attorney to confirm whether a FRSA complaint must be filed with OSHA.

Here is the full text of Sweatt v. Union Pacific Railroad Company. For more on Section 20109 of the FRSA, go to the Rail Whistleblower Library.

Expansive Scope of FRSA Adverse Action

Posted in Federal Rail Safety Act

The boundaries of Federal Rail Safety Act adverse action keep expanding. In Fricka v. National Railroad Passenger Corporation, the Administrative Review Board confirms that FRSA adverse action goes far beyond the limits set by Title VII and Burlington Northern v. White. For example, the following actions are adverse under the FRSA:

  • merely threatening discipline against an employee who engages in FRSA protected activity;
  • not paying an employee’s medical bills after misclassifying or reclassifying a work related injury as non-work related: “We conclude as a matter of law that Amtrak’s reclassification of Fricka’s injury as non-work related was unfavorable and more than trivial because it led to Amtrak not paying Fricka’s medical bills.”
  • a drop in an employee’s performance rating, even if it does not reduce the employee’s pay or salary;
  • any other unfavorable employment action that is more than trivial, either as a single event or in combination with other deliberate employer actions.

Fricka should be read in conjunction with the ARB’s decisions in Vernace v. PATH (merely threatening discipline, without more, is adverse action) and Santiago v. Metro North Railroad (not paying medical bills after misclassifying a work related injury as non-work related is adverse action).

So railroads beware: it now is clear that any event or combination of actions that is more than trivial can result in FRSA liability. Here is the full text of Fricka v. National Railroad Passenger Corporation. For more on Section 20109 of the FRSA, go to the Rail Whistleblower Library.

OSHA Issues Final FRSA and NTSSA Rules

Posted in Federal Rail Safety Act

The Rules governing the whistleblower retaliation complaints of railroad workers under Section 20109 of the Federal Rail Safety Act now are final. And the same Rules apply to the whistleblower retaliation complaints of public transit employees under the National Transit Systems Safety Act (NTSSA). Here is the complete text of the Final Rule.

OSHA’s detailed Summary and Discussion of the policies and case law informing the handling of FRSA and NTSSA complaints is well worth a read. Here are several highlights:

Subsection (c)(1)
Citing the ARB’s Decision in Santiago v. Metro North Commuter Railroad, OSHA confirms: “the ‘other discrimination’ for which an employee may seek relief under paragraph (d)(1) necessarily includes a railroad’s denial, delay, or interference with medical or first aid treatment, or failing to promptly transport an injured employee to the nearest hospital”

Subsection (c)(2)’s exception:
“OSHA believes that the safe-harbor in subsection (c)(2) requires that the railroad’s refusal to allow an employee to return to work be in good faith. A retaliatory refusal to permit an employee to return to work cannot properly be regarded as made ‘pursuant to’ FRA’s or the carrier’s own medical standards for fitness for duty under the statute. Any other interpretation of the provision would permit a railroad carrier to refuse to allow an employee to return to work in retaliation against the employee for reporting the injury (which would violate (a)(4)) or as a means for extending retaliatory discipline prohibited by (c)(2). Evidence that a refusal to allow an employee to return to work is based on carrier standards that are not recorded in the carrier’s official policies, not uniformly applied, or not medically reasonable may help to demonstrate that the refusal is due not to a legitimate safety concern of the railroad carrier by rather is motivated by retaliatory intent.”

When 180 day window begins to run:
The 180 window to file a complaint with OSHA begins when the alleged violation occurs: “this is considered to be when the retaliatory decision has been both made and communicated to the employee. In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer’s decision to take an adverse action, not when the employee learns of the retaliatory nature of the action.”

Temporal proximity may be years:
An employee can satisfy the contributing factor standard “if he or she shows that the railroad’s adverse action took place within a temporal proximity of the protected activity, or at the first opportunity available to the retaliating manager, giving rise to the inference that it was a contributing factor in the adverse action. For example, years between the protected activity and the retaliatory actions did not defeat a finding of a causal connection where the manager did not have the opportunity to retaliate until he was given responsibility for making personnel decisions.”

Interest rate on back pay:
“Under the FRSA and NTSSA, interest on back pay will be computed by compounding daily the Internal Revenue Service (IRS) interest rate for the underpayment of taxes, which is the Federal short-term rate plus three percentage points.”

Back pay includes RRB allocations:
Because the FRSA is a make whole remedy, railroads are required “to submit the appropriate documentation to the Railroad Retirement Board allocating the back pay to the appropriate months.”

Front pay:
“Front pay has been recognized as a possible remedy under whistleblower statutes where actual reinstatement is not possible due to the impossibility of a productive and amicable working relationship, or the company no longer has a position for which the employee is qualified, or the employee is medically unable to work due to major depression resulting from the retaliation.”

Injunctive relief:
“OSHA believes that injunctive relief to abate a violation of a specific employee’s rights can be an important element of making the employee whole. Such relief could include, for example, an order requiring a railroad to expunge certain records from an employee’s personnel file, or not apply a particular company policy to an employee, or post a notice regarding the resolution of the employee’s whistleblower complaint to remedy the employee’s reputational harm. In some instances, an order to provide training to managers or a notice to employees regarding the rights protected by the FRSA can assist in making the employee whole by ensuring that the circumstances that led to retaliation do not persist, thus remedying the employee’s fear of future retaliation for having engaged in the protected activity.”

Hearsay is admissible in ALJ trials:
“The formal rules of evidence will not apply to proceedings before an ALJ” and “hearsay evidence is often appropriate in whistleblower cases, as there often are no relevant documents or witnesses other than hearsay to prove retaliation.”

15 day notice before filing in district court eliminated:
OSHA eliminated the requirement to provide 15 day notice before filing a de novo complaint in district court, and replaced it with a requirement that “within seven days after filing a complaint in district court, an employee must provide a file-stamped copy of the complaint to the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending.”

FELA and FRSA
Clarifying the FRSA’s relationship to the Federal Employers’ Liability Act (FELA) on the job injury law, OSHA confirms: “FRSA’s election of remedies provision generally does not bar complainants from bringing both a FRSA retaliation claim and a complaint for compensation for a workplace injury under FELA. The conduct that gives rise to a retaliation claim under FRSA generally differs from the conduct that causes a worker’s injury, which is the subject of a FELA claim. The FELA involves a general standard of care that a railroad owes to a worker while the FRSA is akin to an intentional tort.”

Here is the complete text of OSHA’s Summary and Rules, which is at 80 FR 69115-69132. The Rules are at 29 CFR 1982.100-115. For more on Section 20109 of the FRSA, go to the free Rail Whistleblower Library.

FRSA Alert! Expansive Scope of Employee Right to Medical Treatment Confirmed

Posted in Federal Rail Safety Act

Federal Rail Safety Act Subsection (c)(1) prohibits railroads from denying, delaying, or interfering with the medical treatment “of an employee who is injured during the course of employment.” And (c)(1) also requires that railroads provide prompt transportation to the nearest hospital for employees who are “injured during the course of employment.”

Now, in a case of first impression, a federal court has confirmed the protection of (c)(1) is not limited to “work related” injuries, but applies to any and all injuries that happen to occur while an employee is on duty. And the holding in Jones v. Illinois Central Railroad Company also means FRSA subsection (c)(2) protects employees from discipline for absences ordered by a doctor who is treating an employee for any injury that manifests itself while the employee is on duty, irrespective of the injury’s cause.

Conductor David Jones had hereditary high blood pressure. One evening while at work his head began hurting. A concerned co-worker told his supervisors to call an ambulance, but they failed to do so. By the time Jones was driven to the hospital, he had suffered disabling brain damage.

Jones admitted his brain hemorrhage was triggered by high blood pressure that was not “work related.” But he sued the Railroad for violation of FRSA subsection (c)(1), claiming the Railroad’s delay in obtaining medical treatment for him caused or worsened his brain hemorrhage. The Railroad moved to dismiss the case, arguing (c)(1) only applies to “work-related” injuries and not to preexisting conditions that happen to manifest themselves while at work.

In Jones v. Illinois Central Railroad Company, the federal court held that “an injury occurring while an employee is on duty is sufficient to bring that employee within the scope of subsection (c)(1)’s protection.” The court explained how that conclusion is compelled by the plain meaning of the statute’s text:

The Court holds that (c)(1) unambiguously covers employees who suffer injury while on duty at their place of employment, irrespective of the injury’s cause. This interpretation accords the statute its plain meaning by construing the term “during” in its ordinary sense as a temporal requirement. . . . The statute intends “during the course of employment” to create only a time-based requirement that the injury occur “at some time in the course of employment.”

And Jones explains why this conclusion is fully consistent with the Third Circuit’s decision in the Bala case, PATH v. DOL:

Although the Third Circuit seemingly uses the phrases “on-duty injury” and “work-related injury” interchangeably in its opinion, it may be possible that an injury occurs “during the course of employment” either if it occurred “on duty” or was “work-related” in the sense that it was caused by work. . . . the Third Circuit actually refers to the prerequisite for protection under subsection (c)(1) as a “temporal limitation.”

It is important to note subsection (c)(2) does not use the term “work-related,” and the Third Circuit Bala’s opinion only ruled that (c)(2) incorporated (c)(1)’s “during the course of employment” injury standard. As a result, subsection (c)(2)’s protection from absence discipline applies to any employee who is following his treating doctor’s orders for any injury that occurs “during the course of employment,” even if it is a preexisting non-work related condition that just happens to manifest itself while the employee is on duty.

Bottom line? Any injury that occurs or manifests itself while an employee is on duty is protected by subsections (c)(1) and (c)(2). It doesn’t matter if the injury is not covered by the FELA or is a preexisting non-work related condition that just happens to manifest itself while an employee is on duty. The take away is:

  • It is a violation of subsection (c)(1) for a railroad to deny, delay, or interfere with the medical treatment for any injury that manifests itself during the scope of employment.
  • It is a violation of (c)(1) for a railroad to fail to promptly transport the injured employee to the nearest hospital any injury that manifests itself during the scope of employment.
  • It is a violation of (c)(2) for a railroad to discipline an employee for following the treatment orders of a doctor who is treating the employee for any injury that manifests itself during the scope of employment.
  • It is a violation of (c)(2) for a railroad to discipline employees for absences ordered by doctors treating employees for any injury that manifests itself during the scope of employment.

Here is the Jones v. Illinois Central decision. For more on the rights of railroad whistleblowers under Section 20109 of the Federal Rail Safety Act, go to Rail Whistleblower Library.

Article Confirms Railroad Culture of Retaliation

Posted in Federal Rail Safety Act

Although it comes as no surprise to railroad employees, an investigative article exposes for the rest of the country how railroads continue to retaliate against workers who report safety hazards or injuries. The article is entitled: For Big Railroads, a Carload of Whistleblower Complaints and is published by FairWarning Reports.

The article notes that from October 2007 through June 2015, OSHA figures show railroad workers filed more than 2,000 retaliation complaints. And nationwide, during that period seven of the top ten employers subjected to whistleblower retaliation complaints were railroads, in the following order: BSNF 409; Union Pacific 360; CSX 267; Norfolk Southern 247; Canadian National 151; Amtrak 119; and Metro North Railroad 102.

Here are some of the more notable points the article makes:

The alleged violations defy a key intent of federal whistleblower laws: to encourage employees who discover possible hazards to come forward before an accident happens. The potential value of such an early warning system is underscored by the deadly passenger rail accidents and oil train wrecks in recent years. Joseph C. Szabo, who headed the FRA from 2009 until this January, said industry supervisors often are under “immense pressure” to curb costs by moving trains quickly out of rail yards. That, in turn, translates into pressure on rank-and-file workers “to ignore safety protocols and to just get the damn train out of town.” That’s why, Szabo said, it’s “critically important” that railroad workers are “very comfortable in doing the right thing without any fear of retribution.”

In 2012, amid widespread suspicion that railroads were under counting injuries, in part by pressuring workers not to report them, the industry dropped its 99-year-old annual Harriman safety award, which was largely based on employee injury reports. Norfolk Southern, which had won Harriman safety “gold award” 23 years in a row before the honor was scrapped, was the target of 247 whistleblower complaints during the nearly eight-year period tracked. That was the fifth-highest total among all U.S. employers.

Szabo, the former FRA chief, said railroads have embraced more enlightened practices over the past decade or so, but management still has elements of “a paramilitary structure, very much command and control.” To this day, railroads remain discipline-minded. Operating and safety manuals run hundreds of pages. Suspected violators, including workers who get hurt, face internal investigations. Critics still echo Congressional investigators who in 2007 found that railroad companies, along with federal regulators, are “more oriented toward assigning blame to a single individual, without a thorough examination of the underlying causes that led that single individual to commit an error.”

Here is the complete article. For more on the rights of railroad whistleblowers under Section 20109 of the Federal Rail Safety Act, go to the Rail Whistleblower Library.

More On the FRSA’s “Clear and Convincing Evidence” Defense Standard

Posted in Federal Rail Safety Act

On the heels of its signal en banc decision in Powers v. Union Pacific Railroad Company, the Administrative Review Board has issued another important decision further clarifying the standard for a “clear and convincing evidence” defense in Federal Rail Safety Act whistleblower retaliation cases.

The case is the ARB’s decision affirming the remand ruling in DeFrancesco v. Union Railroad Company. The ARB begins by highlighting the public policy informing the FRSA whistleblower statute:

A employee’s right to report a workplace injury is “a core protected right” under the FRSA that benefits not only the employee but also the railroad employer and the public. If employees do not feel free to report injuries or illnesses without fear of incurring discipline, dangerous conditions will go unreported resulting in putting the employer’s entire work force as well as the general public potentially at risk.

Where a protected injury report becomes the basis for investigation into the worker’s conduct of a type designed to lead to discipline, there is a heightened danger that the investigation will chill injury reporting by sending a message to other employees that injury reports are not welcome.

Congress responded by making it difficult for railroads to defend against their employee whistleblower retaliation claims by requiring them to prove by clear and convincing evidence it would have taken the same unfavorable personnel action in the absence of the protected activity. “Clear” evidence requires “an unambiguous explanation for the adverse actions in question.” “Convincing” evidence means proof to a “reasonable certainty.” As both the ARB and federal courts stress:

“For employers, this is a tough standard, and not by accident.” One of the important interests Congress sought to protect by the 2007 amendments to FRSA was the right of railroad employees to report injury without fear of retaliation for so doing. …. the legislative history surrounding adoption of the tough clear and convincing standard under the FRSA whistleblower protection provision reveals Congressional concern about a history of retaliation against railway employees who report an injury.

Factors that are fatal to a railroad’s defense include the disparate treatment of injured employees and the selective enforcement of rules and policies. Also fatal is evidence the railroad’s investigation of the injury was conducted more to find some pretext for retaliation than to identify and eliminate the root cause of the hazard that lead to the injury.

So here are the questions the ARB stressed must be answered when determining if the violation of a workplace safety rule is being used as a pretext for discrimination against an injured employee:

  • Does the railroad routinely monitor for compliance with the work rule in the absence of an injury?
  • Does the railroad consistently impose the same discipline on employees who violate the work rule but do not report an injury?
  • Is the rule so vague or subjective it can be easily used as a pretext for discrimination?
  • Was the investigation designed more to unearth a plausible basis for punishing the injured employee than to reveal the root cause of the injury?
  • Were all the supervisors whose actions or inaction contributed to the root cause of the injury also disciplined, or was only the injured employee disciplined?

Bottom line? DeFrancesco confirms it is not enough for the railroad to show the employee was disciplined for violating a safety rule. It is not enough for the railroad to show it disciplines employees who do not report an injury. A railroad’s defense still fails if it cannot prove to a reasonable certainty that it routinely monitors for compliance with the work rule in the absence of an injury, and that it consistently imposes the same discipline on employees who violate the work rule but do not report an injury. For more information on railroad whistleblower rights, go to the Rail Whistleblower Library.