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The Source for Railroad Injuries & Whistleblower Protection

Bad Week For Pan Am Railways

Posted in Federal Rail Safety Act

Twice in the same week, Pan Am Railways has been slammed with the statutory max in Federal Rail Safety Act punitive damages: once from a federal jury expressing its outrage at Pan Am’s profoundly unsafe culture and again from a Judge whose excoriating decision describes that culture in damning detail.

The federal jury verdict came in the Jason Worcester case, described in this earlier post. Jason was terminated after reporting a hazardous safety condition. The district judge denied Pan Am’s summary judgment motion, and the trial was held in late June 2014. The trial shined a spotlight on Pan Am’s dark abusive culture, and the jury responded with a verdict awarding $150,000 in compensatory and $250,000 in punitive damages. With attorney fees into the six figures, the total cost to the Railroad will be over half a million.

After Jason Raye filed a FRSA complaint with OSHA, Pan Am used it to charge him with “providing false statements to a government agency” and subjected him to a disciplinary hearing. Raye filed another complaint based on FRSA subsection (a)(3)’s prohibition against retaliation for filing a FRSA complaint. OSHA ruled in Raye’s favor but Pan Am objected. After a trial, Administrative Law Judge Jonanthan A. Calianos issued a Decision and Order explaining why Pan Am’s culture mandates the award of maximum punitive damages.

Judge Calianos’ opinion in Jason Raye v. Pan Am Railways is a convenient primer on the standards for FRSA liability and damages. Here are some excerpts:

Burdens of Proof
“A preponderance of the evidence is the greater weight of the evidence, sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

“The clear and convincing evidence standard is a higher burden than a preponderance of the evidence and the railroad must conclusively demonstrate that the thing to be proved is highly probable or reasonably certain”

Types of Evidence
Direct evidence conclusively links the protected activity and the adverse action and does not rely upon inference”

Circumstantial evidence may include:
–temporal proximity
–indications of pretext
–inconsistent application of a railroad’s policies
–a railroad’s shifting explanations for its actions
–antagonism or hostility toward an employee’s protected activity
–the falsity of a railroad’s explanation for the adverse action taken
–the railroad’s reasons are not worthy of credence
–a change in supervision’s attitude toward an employee after he or she engages in protected activity

“Circumstantial evidence must be weighed as a whole because a number of observations each of which supports a proposition only weakly can, when taken as a whole, provide strong support if all point in the same direction”

Inextricably Intertwined
“If the protected activity and the adverse action are inextricably intertwined, there exists a presumptive inference of causation.”

“The protected activity and the adverse action are inextricably intertwined if the basis for the adverse action cannot be explained without discussing the protected activity.”

Emotional Distress
No medical testimony is required because “an employee’s credible testimony alone is sufficient to establish emotional distress.”

Evidence of emotional distress may include: “extreme stress, anxiety, sleeplessness, fatigue, loss of appetite, marital or family strain, loss of self esteem, depression, or nervous breakdown.”

“The severity of the adverse action should be considered in determining the amount of emotional damages to be awarded.”

Punitive Damages
“Punitive damages are appropriate for cases involving a railroad’s reckless or callous disregard of employee statutory rights, as well as for intentional violation of federal law.”

Factors to consider are “whether punitive damages are required to deter further violations of the statute and whether the illegal behavior reflected corporate policy.”

Factors to consider when determining the amount of punitive damages include “the sanctions imposed in other cases for comparable misconduct.”

Illustration of a Workplace Culture Mandating Maximum Punitive Damages
Here are excerpts from ALJ Calianos’ description of Pan Am Railways’ culture and why it mandates the maximum amount of punitive damages:

 I find that Pan Am’s actions are an egregious, blatant, and willful act of retaliation. … The only rational explanation for bringing such baseless and serious charges against Raye following the filing of the FRSA complaint is that Pan Am utilized the process to intimidate and discourage protected activity, not only by Raye, but other employees … the fact that Raye was charged with such severe violations is sufficient alone to cause a serious chilling effect of dissuading employees from asserting their rights under the FRSA.

Pan Am fosters a workplace culture that discourages employees from reporting on the job injuries … When there is a reportable injury at Pan Am, 99% of the time formal charges are brought against the injured employee … No energy is expended and no investigation is conducted on what the railway may have done wrong when an injury occurs. The corporate mantra appears to be that if an injury occurs on the job, it must be the fault of the employee who was injured. The behavior of assigning blame to individual employees without a thorough examination of the underlying causes that lead to employee missteps is the exact type of behavior Congress was trying to prevent in enacting the FRSA.

So hats off to my colleagues Marc Wietzke (in Worcester) and Steve Fitzgerald (in Raye) for well-tried cases that advance the FRSA cause. The award of the $250,000 maximum in punitive damages is now routine, be it from federal juries or administrative law judges. Even in FRSA cases with minimal lost wages, railroads are looking at an economic cost in the half million dollar range by the time emotional distress, punitive damages, and attorney fees are added up.  Here is a Summary of Rail Whistleblower Rights.  For more information on the FRSA, go to the free Rail Whistleblower Library.  For free automatic updates on FRSA matters, enter your email address in the Stay Connected box at this blog.

The Price Railroads Pay For Ignoring the FRSA

Posted in Federal Rail Safety Act

Well over a year before its string of death and derailment, Metro North was subjected to the first Federal Rail Safety Act whistleblower jury trial in the nation, Barati v Metro North. During that trial, cross examination of the Heads of Metro North’s Safety, Training, and Track Departments exposed the disconnect between the Railroad’s window dressing safety policies and the profoundly unsafe culture of its workplace. The jurors saw how the Railroad–rather than welcome employee reports of safety hazards or injuries as an opportunity to eliminate unsafe conditions through root cause analysis–instead “shoots the messenger” by retaliating against those workers. The result is a profoundly unsafe railroad where hazards are ignored and perpetuated.

The jurors expressed their outrage by awarding $1 million in punitive damages in order to send an unmistakable message that such a culture is not acceptable and will not be tolerated by the public. The federal judge upheld the jury’s punitive damage award, explaining:

Here, the jury registered their measure of reprehensibility to underscore their finding that the Railroad’s conduct was in reckless disregard of Mr. Barati’s safety and FRSA rights. Their conclusion was supported by the evidence that the Railroad singled Barati out for discipline for a safety violation. The jury also had evidence that Metro North’s termination of Barati was contrary to its written policies and FRA regulations, was a self-serving effort to discourage employee injury reporting in order to keep its injury and lost workday statistics low, violated Metro North’s own obligation to accurately report employees’ on-the-job injuries and resulting lost work days, and contravened Metro North’s “safety statement” that “we are committed to the safety of our employees and our customers,” and “we are determined to provide a work environment where all employees work safety.”

But Metro North ignored the jury’s warning. Rather than see the $1 million in punitive damages as a wake up call, Metro North did nothing to shake up the culture of its Safety, Training, or Track Departments, and now is paying an incalculable price.

The findings of the FRA’s recent Deep Dive into the culture of Metro North Railroad are indeed damning:

“an ineffective Safety Department and poor safety culture”
“an ineffective training program”
“a deficient safety culture that has manifested itself in increased risk and reduced safety on Metro North”

But none of this should come as a surprise given that, per capita, Metro North has five times more FRSA violations than any other railroad in the country. In the past five years, OSHA, judges, and juries have ordered punitive damages against Metro North in nine separate cases. But the Railroad ignored those warnings to stop its reckless conduct, and the FRA did nothing to intervene.

Now, the FRA is ordering that “Metro North’s senior leadership must prioritize safety above all else, and communicate and implement that priority throughout Metro North.” A good place to start would be for Metro North to take its violations of the FRSA seriously, but given its record no one should be holding their breath. Lip service to paper policies do nothing to change an entrenched culture. Here is the FRA’s complete Deep Dive Report.  For more information on the FRSA, go to the free Rail Whistleblower Library.

 

Metro North Hit With Seven FRSA c(2) Violations

Posted in Federal Rail Safety Act, Railroad Injuries

Once again, the federal government is telling Metro North that its “discipline trumps safety” culture must change. OSHA’s Whistleblower Directorate has found Metro North violated subsection c(2) of the Federal Rail Safety Act in seven cases. In each case, the employee followed his doctor’s order to stay home because he could not safely perform his job duties. In each case, Metro North ignored the doctor’s note and threatened the employee with discipline under its Attendance Policy.

The case of Richard Williams is typical of the seven. After a surgical procedure, William’s treating doctor prescribed narcotic pain medication that “precluded him from safely performing his job duties” for six days. Accordingly, the doctor excused Williams from working his safety sensitive Railroad job during those six days, and when Williams returned to work he gave the doctor’s note to Metro North.

Subsection c(2) of Section 20109 prohibits a railroad from disciplining an employee “for following the orders or a treatment plan of a treating physician.” Nevertheless, in blatant violation of that prohibition, Metro North counted the six day absence against Williams and took “the first step in the disciplinary process” by issuing a letter of warning. Metro North’s conduct is especially troubling because it knowingly acted in direct violation of the U.S. Department of Labor’s official position on the scope of Subsection c(2).

OSHA awarded compensatory damages and attorney fees. In so doing, OSHA rejected Metro North’s argument that a letter of warning does not constitute discipline:

OSHA finds that issuance of a warning letter to an employee in connection with facts such as exist in this matter is an adverse action under FRSA because it could reasonably dissuade an employee from engaging in activity protected under Section 20109 or other FRSA provisions.

Bottom line? Thanks to the FRSA, safety trumps discipline, and a railroad cannot use the threat of discipline to force employees to report to work in a medically unfit condition contrary to their doctor’s orders.  Here is OSHA’s Press Release.  For more information on the FRSA, go to the Summary of the FRSA and the Rail Whistleblower Library.

“Good Faith” Reporting of Hazardous Safety Conditions

Posted in Federal Rail Safety Act

Today’s front page article in the New York Times exposes the fundamental problem with the rail management’s safety culture. When a mayor and her fire chief went to the site of a liquid gas derailment in their town, the railroad threatened to arrest them. Describing the railroad’s response to their legitimate concern over an obvious safety hazard, the mayor said, "They don’t have to tell us a thing. It’s a very arrogant attitude." For the full "Hazards Ride the Rails in Secret" article, click here.

Not surprisingly, railroad employees who report safety hazards are subjected to the same arrogant hostility. Congress responded by enacting Subsection (b)(1)(A) of the Federal Rail Safety Act, which protects employees for "reporting, in good faith, a hazardous safety or security condition."

But what constitutes the "good faith" reporting of a safety hazard? Is a worker’s "honest, subjective belief" sufficient? Or must the belief be "objectively reasonable"? The recent district court decision in Jason Worcester v. Springfield Terminal Railway Company elucidates the answer to those questions.

When Springfield Terminal ordered untrained personnel to remove hazardous material from the right of way, Signal Foreman Jason Worcester objected, warning it would be unsafe. He was charged with insubordination, subjected to the usual kangaroo court, and terminated.

After Jason filed for a jury trial in federal court, the Railroad moved to dismiss the case, arguing his report of the safety hazard was not done "in good faith." The district judge denied the motion and ordered the case to trial. In so doing, the Court noted:

"An employee taking on a task he cannot safely complete could constitute a hazardous safety condition," and "warning a supervisor about such a condition could constitute reporting."

The Court found both the "subjective belief" and "objective reasonableness" standards were satisfied by the evidence in the case. However, the Court also stressed that Subsection (b)(1)(A) "contains no explicit requirement that the employee’s actions be objectively ‘reasonable.’"

Bottom line? The text of the FRSA does not require "objective reasonableness" for reports of safety hazards. The rules of statutory interpretation dictate that "good faith" is satisfied when the employee "held an honest, subjective belief that there was a hazardous safety or security condition." For the full text of Worcester v. Springfield Terminal Railway Co., click here. For a Summary of the FRSA, click here. For free access to the Rail Whistleblower Library, click here.
 

A Road Map For FRSA Attorney Fee Awards

Posted in Federal Rail Safety Act

The second Federal Rail Safety Act jury trial in the nation has precipitated a primer on the award of FRSA attorney fees. In Brig and Buchala v. PATH, the jury found the Railroad violated the FRSA when it retaliated against two workers who complained when an unscheduled train nearly struck them. Here are excerpts from Senior District Judge Patterson’s application of the controlling factors:

Presumptively Reasonable Fee
A "presumptively reasonable fee" is "the product of a reasonable hourly rate and the reasonable number of hours required by the case." The fee applicant bears the burden of documenting the appropriate hourly rate and hours expended.

Reasonableness of Time Billed
"Three conditions must be met to establish reasonableness of the time expended: "First, the hours submitted must be documented with contemporaneous records. Second, the records must not be overly vague. Finally, the billed time must have been reasonably spent."

Records
As for detail, "the records need only specify the date, the hours expended, and the nature of the work done." "Counsel is not required to record in great detail how each minute of his time was expended, but he should identify the general subject matter of his time expenditures." Best practice is to log the task as soon as it is completed.

Time Billed During OSHA Proceedings Is Recoverable
Filing a complaint with OSHA "is a step that is required by the FRSA before an employee plaintiff is allowed to bring an FRSA action in district court. Accordingly, any hours billed pursuant to OSHA proceedings are recoverable."

Time Billed For Requesting Attorney Fees is Recoverable
"It is proper to award attorney fees for time sought in connection with the arguments and submissions made regarding a fee award request."

Establishing Prevailing Market Rates
"In order to determine a reasonable rate, the lodestar looks to the prevailing market rates in the relevant community." The "relevant community to which the court should look is the district in which the case was brought."

"To determine the currently prevailing reasonable rate, courts look first to the lawyer’s level of experience."

"A review of the prevailing rate for an attorney of counsel’s experience in the relevant community is then required." Courts usually establish a spectrum of rates by looking to awards in other cases, with "rates on the highest end of the spectrum reserved for extraordinary attorneys held in unusually high regard in the legal community."

Recoverable Costs
Under the FRSA, a prevailing employee is entitled to an award of "litigation costs," including "those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." Substantiation of those expenses is accomplished by providing a summary list with invoices attached.

For the complete text of Judge Patterson’s Decision, click here. For free access to the Rail Whistleblower Library, click here.

The Long And The Short Of FRSA OSHA Complaints

Posted in Federal Rail Safety Act

There now are two formats for filing a Federal Rail Safety Act whistleblower retaliation complaint with OSHA: short form and long form.

On Line Short Form
OSHA recently gave workers the option to file a whistleblower complaint on line, using the form available at OSHA’s web site. This may be a good option for a worker who does not have an attorney or is under pressure because the 180 day window for filing is about to close (and the 180 days begins to run on the date the employee first learns the railroad would be taking taking the adverse action against him or her). So while the upside is that filing the form electronically will instantly register the complaint as filed, the downside is it may be lacking in persuasive details and supporting material. For a link to the OSHA on line complaint form, click here.

Long Form
The long form is just another way to describe a detailed written complaint tailored to the facts of an employee’s case. The purpose of the long form complaint is to present the facts and exhibits to the OSHA investigator in such a way that the merit of the claim becomes self-evident.  Generally, such complaints are best drafted and refined through an interactive process between an attorney and the employee. For an example of such a long form complaint based on a classic set of facts, click here.  For a Summary of the FRSA, click here.  For access to the free Rail Whistleblower Library, click here.

FRSA Federal Court Jurisdiction Clarified

Posted in Federal Rail Safety Act

The latest Federal Rail Safety Act district court decision confirms that the statutory jurisdiction of the federal courts over railroad whistleblower cases can not be limited by DOL regulations or actions.

After trackmen Donald Glista and William Orr reported injuries, Norfolk Southern Railway fired them for "conduct unbecoming" and for making "false and conflicting statements." For that blatant FRSA violation OSHA ordered Norfolk Southern to pay Glista $620,523 and Orr $297,985. The Railroad objected and pushed it up to the ALJ level. Before any ALJ trial was held, the workers filed a Notice of Intent to file in U.S. district court. Five weeks later the ALJ dismissed the complaint with prejudice, and then four weeks after that the workers actually filed their complaint in district court.

Norfolk moved to dismiss, arguing the ALJ’s dismissal was a "final" DOL order barring federal court jurisdiction. The district judge disagreed. Stressing "the FRSA is a remedial statute that should be liberally construed in order to protect the plaintiff employees," the Court held the "plaintiffs had a statutory right to remove their claim from the administrative process because the requisite 210 days had clearly elapsed."

The Court also held that OSHA’s 15 day notice regulation is not mandatory: "it is clear that failure to provide such notice is not a binding requirement, preclusive to exercising the right to de novo review or indicative of bad faith." This is consistent with the district court holding in Pfeifer v. Union Pacific Railroad Co.: "the FRSA statute contains no reference to a notice requirement, and thus the DOL regulation has no statutory basis in the law."

Bottom line? After 210 days, in the absence of a final decision on the merits by the DOL, an employee has an absolute statutory right to file in federal court with or without giving 15 day notice.  For the full decision in Glista and Orr v. Norfolk Southern Railway Co.,click here.  For a Summary of the FRSA,click here.  For free access to the Rail Whistleblower Library,click here.

FRSA Miscellany

Posted in Federal Rail Safety Act

Here’s a Miscellany of Federal Rail Safety Act items, ranging from the United States Supreme Court to how to file in federal district court to how to award attorney fees.

United States Supreme Court Cites Section 20109

Protecting whistleblowers has deep bipartisan support in Congress, and the United States Supreme Court also goes out of its way to protect whistleblowers. And true to form, the Supreme Court’s first reference to 49 USC Section 20109 bodes well for any FRSA whistleblower case that may wend its way to the nation’s highest court.

The cite comes in the Court’s recent decision in the SOX whistleblower case of Lawson v. FMR LLC. SOX is the Wall Street whistleblower statute that protects employees who blow the whistle on fraud affecting the stocks of publicly traded companies. The issue was whether the language of the SOX statute was broad enough to include employees of contractors to public companies.

Noting that SOX was modeled after the AIR-21 whistleblower statute protecting airline employees, the Supreme Court endorsed the broad remedial interpretation of AIR-21 and applied it to confirm the expansive scope of SOX. In a footnote, the Supreme Court stated: "For other provisions borrowing from AIR-21, see 49 U.S.C.. 20109, governing rail carriers, which incorporates AIR 21′s enforcement procedures." Lawson at fn.19.

So for those railroads who may be itching to challenge the FRSA in the Supreme Court, be careful what you wish for. There is no reason to think the result will be any different from the dope slapping the Circuit Courts have applied to every attempt by the railroads to undercut the FRSA.

Liberal Filing in Federal Court

The U.S. District Court decision in Pfeifer v. Union Pacific Railroad Co. illustrates the liberal filing standards applicable to FRSA cases.

OSHA found Union Pacific retaliated against Nick Pfeifer after he reported a rough track hazardous safety condition. Union Pacific objected and the case went to an ALJ bench trial. The ALJ ruled against Pfeifer and dismissed his FRSA complaint. Pfiefer petitioned for review by the ARB, and then filed for a jury trial in federal district court, but without first giving the DOL a15-Day Notice of Intent to file. Union Pacific filed a Motion to Dismiss in the district court, arguing the ALJ’s dismissal controlled and the lack of a 15-day Notice barred federal court jurisdiction.

District Judge Julie A. Robinson rejected both of the Railroad’s arguments. She held the DOL’s regulations asking for a 15-day Notice before filing in federal court is not binding:

the FRSA statute contains no reference to a notice requirement, and thus the DOL regulation has no statutory basis in the law. . . .The statute gives federal courts jurisdiction to hear whistleblower claims de novo under certain circumstances, and when those circumstances are met, the agency may not strip the courts jurisdiction by adding additional requirements. . . .The Court does not lack jurisdiction due to a lack of notice to the DOL.

As for the ALJ’s administrative dismissal, Judge Robinson held it had no effect on the federal court proceeding. For an employee to file "a protective appeal to the ARB to maintain his right of removal to federal court would not be indicative of bad faith." She noted that "administrative decisions that are not final decision do not have a res judicata effect," and "because Pfeifer has removed this action, as authorized by statute, the Secretary of Labor has not issued a final decision."

Bottom line? An ALJ’s non-final administrative dismissal does not bar an employee from filing in federal court for a jury trial without giving notice to the DOL first.

How To Figure Attorney Fee Awards

The Administrative Review Board and the Administrative Law Judge in the Bala v. PATH case have issued decisions outlining the criteria for determining a reasonable hourly rate for attorneys who successfully represent FRSA complainants. Factors include "location of counsel, his years of experience, the level of expertise, the complexity of the case, the risk of loss, delay in payment, and the amount of the award." In order to establish the appropriate prevailing market rate, counsel must submit "affidavits of other lawyers" and "evidence of the fees counsel received in cases of similar complexity."  The ARB Decision and the ALJ decision should be read in conjunction with U.S. District Judge Arterton’s fee decision in Barati v. Metro North Railroad.

It is important to note that even if a rail worker’s FRSA economic award is minimal, his attorney still is entitled to an award based on the full amount of his time. For example, Bala’s economic award was only $1,101, but his attorney was awarded a fee based on 100% of his hours at $525 an hour, for a total fee award of $72,000.  The public policy encouraging such fee awards is spelled out by the Second Circuit’s Decision in Millea v. Metro North Railroad.

For a Summary of the FRSA, click here. For all the materials on the FRSA in the Rail Whistleblower Library,click here.

Railroad Hearings Are Not Binding In FRSA Cases

Posted in Federal Rail Safety Act

In a definitive decision, a U.S. Circuit Court of Appeals has barred railroads from using RLA arbitration findings to preclude Federal Rail Safety Act whistleblower retaliation cases. The Court held that self-serving railroad disciplinary hearings cannot and do not have any effect on the right of employees to sue railroads for violating the FRSA.

The fact pattern is familiar: locomotive engineer Danny Grimes reported a work-related injury, and the BNSF Railroad charged him with falsifying an injury. After the usual kangaroo court disciplinary hearing (no discovery, no attorney, no rules of evidence, with railroad managers acting as judge, prosecutor, and jury) the Railroad declared him guilty and fired him. The union appealed to a RLA arbitration board, but based on the kangaroo court record the Public Law Board found Grimes had been dishonest.

Meanwhile, Grimes had filed a FRSA whistleblower retaliation claim with OSHA and then opted into federal district court for a de novo jury trial. The district judge ruled the PLB’s finding was binding on Grimes, and therefore dismissed the FRSA case. Grimes appealed to the 5th Circuit, and in a well-reasoned decision the Court of Appeals reversed, explaining:

The RLA makes the arbitral findings conclusive on the parties in the dispute governed by the RLA. . . . Those findings are not, however, necessarily conclusive in a suit brought under another statute. . . . Where the arbitral panel relies on a hearing conducted by the defendants, the arbitral findings of fact do not have preclusive effect. . . . Here, (1) the hearing was conducted by the railroad; (2) the plaintiff was represented by the union rather than an attorney; (3) the termination decision was made by a railroad employee, not by an impartial fact finder such as a judge or a jury; (4) the rules of evidence do not appear to have been controlling; (5) and most crucially, the PLB’s affirmance was based solely on that record. . . .There are good reasons to require neutral arbitrators: The employer may have already developed opinions about the employee before the ultimate hearing and may have other motives to dismiss a particular employee. Thus, the employer’s decision maker might assess the credibility and weight of the evidence differently than would a neutral arbitrator.

To top if off, the 5th Circuit fully endorsed the 7th Circuit’s decision in Reed v. Norfolk Southern Railway Co. holding that workers are free to simultaneously pursue a RLA arbitration and a FRSA case: "The plain language of the FRSA statute tells us that an employee is not precluded from obtaining relief under the FRSA simply because he appealed his grievance to a Public Law Board."

Thanks to the federal Circuit Courts and the Administrative Review Board, the foundation of FRSA whistleblower protection law now is solidly in place. And despite the desperate efforts of railroads to invent defenses where none exist, the reality is there is one and only one defense to a FRSA case: the railroad will always be liable unless it can prove to a reasonable degree of certainty it would have taken the exact same adverse action even if the employee had not engaged in the protected activity. And in the words of the 3rd Circuit’s landmark decision in Araujo v. New Jersey Transit Rail, "for employers, this is a tough standard, and not by accident. . . . the standard is ‘tough’ because Congress intended for railroads to face a difficult time defending themselves, due to a history of harassment and retaliation in the industry."

Amen. For the full decision in Grimes v. BNSF Railway Co.,click here. For the full Reed v. Norfolk Southern Railway Co. decision,click here. For a Summary of the FRSA whistleblower protections, click here. And for access to the free Rail Whistleblower Library, click here.

FRSA Case Law Update

Posted in Federal Rail Safety Act

Two recent decisions clarify the "intervening event" defense, the limitations period, and the basis for emotional distress damages in Federal Rail Safety Act cases.

An "Intervening Event" Is Not A FRSA Defense

Railroads often argue that the firing of an employee was based on an "intervening event" that breaks the causal connection between the FRSA protected activity and the adverse action.  The BNSF Railroad  terminated conductor Peter Peterson after he reported an injury, and raised that defense to his FRSA complaint. The resulting ALJ decision explains why the "intervening event" defense does not apply to FRSA retaliation cases:

An act that "is part and parcel of the chain of events from injury to termination" is not an intervening event. Any act that is "at least incidental to" a protected activity is not an intervening event. And even an event that is totally unrelated to an injury report is not a defense: "an intervening event does not necessarily sever the connection between protected activity and adverse action — protected activity can be a contributing factor even if the employer also has a legitimate reason for the unfavorable employment action against the employee."

Peterson v. BNSF Railway.  Indeed, the ARB confirms that "even an insubordinate comment is not an intervening event when it was incidental to protected activity." So chalk up another railroad FRSA defense that is doomed to failure. In Peterson’s case, the ALJ awarded him reinstatement with several hundred thousand dollars for back pay, emotional distress, and punitive damages.

When the 180 Day Limitations Period Begins To Run

Maverick Transportation LLC is a U.S. Circuit Court decision interpreting the FRSA’s fraternal twin whistleblower statute, the STAA (which protects truck drivers from whistleblower retaliation under the same standards as the FRSA). In Maverick, a driver suffered adverse action when he refused to drive a truck he believed presented a danger to himself and the public.

The Circuit Court upheld the ARB’s ruling that the 180 day "limitations period begins to run when the employee receives definitive notice of an adverse action," not necessarily when the employer takes the adverse action without the employee’s knowledge. This means the limitations period begins to run only when the employee receives definitive notice of the adverse action taken by the employer. In the Maverick case, the employee did not find out until years later, but he was allowed to proceed because he filed his OSHA complaint within 180 days of his discovery of the adverse action.

Emotional Distress

The Circuit Court also affirmed the liberal standard for awarding emotional distress damages in FRSA retaliation cases. In Maverick, the employee was awarded $75,000 in emotional distress damages based solely on his own testimony without any medical evidence. The Circuit Court upheld the award, noting "A plaintiff’s own testimony can be sufficient for a finding of emotional distress, and medical evidence is not necessary."

For the full Peterson decision, click here, and for the full Maverick decision, click here. For a summary of employee rights under the FRSA, click here.