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The Source for Railroad Injuries & Whistleblower Protection

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.”

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.

Another Circuit Court Shoots Down “Election of Remedies” Defense

Posted in Federal Rail Safety Act

In a resounding decision, the 4th Circuit Court of Appeals explains why a rail worker’s pursuit of a racial or sexual discrimination claim does not constitute an “election of remedies” barring that worker from pressing a Federal Rail Safety Act Section 20109 whistleblower retaliation claim.

In Lee v. Norfolk Southern Railway Company, carman Charles Lee was suspended after he insisted on complying with FRA safety regulations requiring him to “bad order” defective rail cars for repair. He first filed a discrimination complaint claiming the suspension was motivated by his race, and later filed a separate FRSA action claiming it was in retaliation for his safety whistleblowing.

The district court granted summary judgment on the FRSA claim, holding the racial discrimination lawsuit constituted an “election of remedies” that barred his subsequent FRSA action because both involved the “same allegedly unlawful act” of suspension. Lee appealed, and the U.S. Solicitor of Labor and the Association of American Railroads weighed in with amicus briefs. In a comprehensive opinion, the 4th Circuit agreed with Lee and the Solicitor of Labor and reversed, holding that “a suspension on the basis of race in not ‘the same allegedly unlawful act’ as a suspension in retaliation for FRSA whistleblowing”:

we conclude that the FRSA’s Election of Remedies provision is unambiguous because it is susceptible to only one reasonable interpretation–that a suspension on the basis of race is not “the same allegedly unlawful act” as a suspension in retaliation for FRSA whistleblowing. And even if we did find the provision ambiguous, we would still reverse because the legislative history and context of the statute demonstrates that the provision does not sweep as broadly as Norfolk Southern suggests.

According to the Secretary of Labor (appearing as an amicus on Lee’s behalf), both the statutory context and legislative history make clear that the Election of Remedies provision only requires an employee to choose between proceeding under the FRSA or another law prohibiting retaliation for the same types of rail safety or security-related whistleblowing addressed in the FRSA. . . . Congress only intended to bar railroad employees from seeking duplicative relief under overlapping anti-retaliation or whistleblower statutes that provide protections similar to the protections in FRSA, such as Section 11(c) of the OSH Act and various state versions of the OSH Act, many of which track Section 11 (c) nearly verbatim.

The Circuit Court stressed that both FRSA Section 20109 and OSHA’s 11(c) are statutes “aimed at preventing retaliation for engaging in protected whistleblowing activities regarding safety and health in the workplace,” whereas Section 1981 seeks to curb racial and sexual discrimination. As such, the “unlawful acts” they address are not the same, and raise “distinct causes of action with different elements and burdens of proof.”

So hats off to Attorney Bill Tucker and the Secretary of Labor for insisting the federal courts get it right. Here is the full text of Lee v. Norfolk Southern Railway Company. For more on Section 20109 of the FRSA, go to the Rail Whistleblower Library.

When Context Is Everything

Posted in Federal Rail Safety Act

When does a sentence not mean what it seems to say? When it is quoted out of context. And that is certainly the case with one sentence in the 8th Circuit’s Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014), decision railroad attorneys love to rip out of context and wave at judges as if it somehow changes three decades of whistleblower law.

Here is the sentence: “But the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” This is just another way of saying that, in order to satisfy the “contributing factor” element, there must be some direct or circumstantial evidence the employee’s Federal Rail Safety Act protected activity played a part in causing the adverse action. In other words, the adverse action qualifies as “intentional retaliation” if there is some causal connection between the employee’s protected activity and the adverse action.

It is the maladroit phrase “an employee must prove intentional retaliation” that gives railroads the opportunity to sow mischief. Railroad attorneys like to quote that phrase out of context and then pretend it overrules settled cat’s paw precedent.

But in fact Kuduk does not change or overrule the United States Supreme Court’s “cat’s paw” decision in Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011), nor could it. Here is the full context of the 8th Circuit’s “intentional retaliation” comment in Kuduk:

The cat’s paw theory articulated in Staub is consistent with the [FRSA] regulation stating that the FRSA knowledge requirement may be satisfied by circumstantial evidence the employer had actual or constructive knowledge of protected activity. . . . We agree . . . that, under the [FRSA] statute’s “contributing factor” causation standard, “[a] prima facie case does not require that the employee conclusively demonstrate the employer’s retaliatory motive.” . . . But the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.

So, to the extent railroads invoke Kuduk to argue proof of intentional retaliatory motive now is required, that is flat error. Kuduk’s use of the phrase “intentional retaliation” is nothing more than a misleading reference to any adverse action prompted by an employee’s protected activity, and it does not change the fundamental whistleblower law precept that proof of retaliatory motive or intent is not required. The principle remains that whenever an employee satisfies the contributing factor element, then perforce the retaliation is “intentional” and any other evidence of motive or intent is not necessary.

And in fact district court judges cite Kuduk to confirm that the FRSA does not require employees to “conclusively demonstrate” the railroad’s retaliatory motive: see, e.g., Gunderson v. BNSF Railway Co., 2015 U.S. Dist. LEXIS 99046 (D. Minn. July 28, 2015), and Miller V. CSX Transp., 2015 U.S. Dist. LEXIS 112507 (S.D. Ohio August 25, 2015).

Context is everything. Railroad whistleblower retaliation cases cannot be derailed by one imprecise phrase ripped out of context. For more information on Section 20109 of the Federal Rail Safety Act, go the Rail Whistleblower Library.

FRSA District Court Decisions Update

Posted in Federal Rail Safety Act

The trickle of federal district court FRSA decisions has turned into a steady stream. To keep up, here is a listing of recent district court opinions interpreting Section 20109 of the Federal Rail Safety Act, with a summary of their significance.

Temporal proximity

Myles v. Northeast Ill. Reg’l Commuter Rail Corp., 2015 U.S. Dist. LEXIS 90798 (N.D. Ill. July 14, 2015).
Subsection (a)(4) reporting of a work-related injury.

Close temporal proximity alone is sufficient to satisfy the contributing factor element, following Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152 (3d Cir. 2013), Davis v. Union Pac. R.R. Co., 2014 WL 3499228 (W.D.La. July 14, 2014), and Ray v. Union Pac. R.R. Co., 971 F.Supp.2d 869 (D.Iowa 2013).

Good faith reporting standard, and inextricably intertwined

Mosby v. Kan. City S. Ry. Co., 2015 U.S.Dist. LEXIS 93869 (E.D.Ok July 20, 2015).
Subsection (a)(4) reporting of a work-related injury.

Denied summary judgment, endorsing the good faith reporting standard applied in Ray v. Union Pac. R.R. Co., 971 F.Supp.2d 869, 883-84 (D.Iowa 2013) (“even assuming that the Plaintiff employee was dishonest with the Railroad on one occasion or another, the relevant inquiry remains whether, at the time he reported his injury to the Railroad, he genuinely believed the injury he was reporting was work-related.”), and denying summary judgment regarding the contributing factor element based on the fact the adverse action was inextricably intertwined with the reporting of the work-related injury.

Miller V. CSX Transp., 2015 U.S. Dist. LEXIS 112507 (S.D. Ohio August 25, 2015).
Subsection (a)(4) reporting of work-related injury.

Denied summary judgment, applying the good faith reporting standard of Ray, Murphy, and Koziara v. BNSF Railroad Co., 2015 U.S. Dist. LEXIS 2382 (W.D. Wisc. January 9, 2015).

Clear and Convincing Evidence

Gunderson v. BNSF Railway Co., 2015 U.S. Dist. LEXIS 99046 (D. Minn. July 28, 2015).
Subsection (a)(4) reporting work related injury and (b)(1)(A) raising safety concerns.

Granted summary judgment based on clear and convincing evidence that the employee’s violation of Railroad’s workplace violence policy would have resulted in his termination in the absence of his unrelated protected activity.

Jauhola v. Wis. Cent., 2015 U.S. Dist. LEXIS 109930 (D.Minn. August 20, 2015).
Subsection (a)(1) and (a)(2) safety complaints, and (b)(1)(A) reporting safety hazards.

Granted summary judgment based on clear and convincing evidence that the employee’s release of track authority while a crew was still on the track would have resulted in his termination in the absence of his unrelated protected activity.

Refusal to work

Stokes v. Southeastern Pennsylvania Transp. Authority, 2015 U.S. Dist. LEXIS 115161 (E.D. Pa. August 26, 2015).
Subsection (b)(1)(B) refusal to work.

Granted motion to dismiss for failure to plead facts sufficient to support a Subsection (b)(1)(B) refusal to work when confronted by a hazardous safety condition presenting an imminent danger of death or serious injury.

Railroads Cannot Interfere With Injured Worker Medical Treatment

Posted in Federal Rail Safety Act

In the landmark decision of Santiago v. Metro North Railroad, the Administrative Review Board held that Federal Rail Safety Act “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 Administrative Review Board 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.

Now, in a follow up Santiago v. Metro North Railroad Decision, the ARB clarifies what a “clear and convincing” defense requires in medical interference cases.

The facts are these. When a chair at his Railroad work place collapsed as he sat down, Anthony Santiago suffered an injury to his low back. Metro North ordered him to go to its Medical Department, which confirmed he had an occupational back injury and advised him to see an orthopedic physician. For two months Metro North followed its policy of paying the medical bills for occupational injuries. However, when a MRI scan confirmed Santiago had a herniated disc and his doctor prescribed treatment for the disc, Metro North’s Medical Department immediately reclassified Santiago’s occupational back injury as “non-occupational” and refused to pay for the treatment. As a result, Santiago suffered a four month delay in his prescribed treatment and was forced to pay $16,520 in medical expenses out of his own pocket.

The Administrative Law Judge found Metro North illegally interfered with Santiago’s medical treatment when it stopped paying for his medical treatment based on the decision of its Medical Department to reclassify his injury as non-occupational. That left Metro North liable unless it could prove “it was highly probable a reasonable doctor acting independently, without Metro North’s involvement, would have determined that the prescribed treatment was medically unreasonable.” In other words, the Railroad had to prove its interference in the medical treatment did not make any difference because the result would have been the same even in the absence of its interference.

In its follow up Decision affirming the punitive and make whole damages awarded to Santiago, the ARB explains it is not enough for a railroad to present a competing medical opinion. Rather, a railroad has to prove that “any reasonable doctor” would conclude the prescribed treatment was medically unreasonable, and that means every doctor in a pool of independent doctors, not just one doctor paid by the railroad. Merely generating “a debatable point” fails to carry the railroad’s heavy clear and convincing burden of proof. This is a tough standard to meet, but the ARB stressed that “Congress has made it clear that it wants railroad companies to completely stop interfering with the ability of railroad workers to seek proper medical treatment for work injuries.”

For the complete text of the Decisions, here is the first ARB Decision, here is the ALJ’s Decision, and here is the follow up ARB Decision. For more on the FRSA, go to the Rail Whistleblower Library page  or the Summary of Rail Whistleblower Rights.

A Miscellany of FRSA Updates

Posted in Federal Rail Safety Act

Here are some “need to know” developments affecting Federal Rail Safety Act Section 20109 railroad whistleblower retaliation matters.

New Rules of Practice For ALJ Trials

As of June 18, 2015, a new set of Rules of Practice and Procedure will apply to the trial of whistleblower cases before U.S. DOL Administrative Law Judges. An increasing number of whistleblower retaliation claims are being handled by ALJs, and the current revisions are designed to harmonize ALJ hearings with the current Federal Rules of Civil Procedure while streamlining handling of those claims. Some of the notable changes include:

Use of Depositions at Hearings

The new Rules add a provision allowing the unconditional use of depositions at ALJ hearings in the absence of an objection, and even over objection under certain circumstances.

Serving Subpoenas

The authority to issue subpoenas remains with the ALJ judge. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering with it the fees for one day’s attendance and the mileage allowed by law. Service may also be made by certified mail with return receipt. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before the formal hearing, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.

Rules of Evidence Remain the Same

Note that the ALJ Rules of Evidence remain the same as before.

OSHA Clarifies Standards of Proof for Whistleblower Investigators

OSHA’s Whistleblower Directorate has issued a Memorandum entitled “Clarification of the Investigative Standard for OSHA Whistleblower Investigations.”  In sum, OSHA confirms that the “reasonable cause” standard applies to OSHA investigations, not the preponderance of evidence standard. The best way to understand this distinction is to visualize the four levels of proof applicable to whistleblower retalation cases, starting with the lowest.

Prima Facie

OSHA’s first step is to determine if the employee has alleged the existence of facts and evidence sufficient for the Investigator to infer the elements of the whistleblower retaliation claim can be satisfied. There is a prima facie case if there is just enough facts to create an inference or presumption that a violation can be proven. If so, the Investigator proceeds with the full investigation.

Reasonable Cause

OSHA’s next step is to determine whether there is “reasonable cause.” Reasonable cause is less than a preponderance of the evidence. Reasonable cause simply means a reasonable judge could believe a violation occurred. In other words, there is reasonable cause if the employee could succeed in proving a violation; proof that a violation actually has occurred is not required. The Memo states: “OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred.”

Preponderance of the Evidence

This is the standard that applies to whistleblower trials. “Preponderance of the evidence” simply means the greater weight of the evidence. When the weight of all the evidence tips in favor of the employee, even if just ever so slightly, then the employee has carried his burden of proof by a preponderance of the evidence. A preponderance of the evidence is more than reasonable cause but less than reasonable certainty.

Clear and Convincing Evidence

This is the highest level of proof in whistleblower retaliation cases. It only applies to the employer, not the employee. “Clear and convincing evidence” requires proof to a degree of reasonable certainty or high probability. It is the burden of proof an employer must satisfy when proving its defense that it would have taken the exact same adverse action in the absence of the employee’s protected activity.

OSHA’s Memo stresses that when determining merit or non-merit, OSHA’s Investigators must apply “the reasonable cause standard, not the preponderance of the evidence standard that would apply to the claim at trial.” This is a subtle but crucial distinction that must never be forgotten. The reasonable cause standard is lower than the standard of proof at trial, and OSHA Investigators must not view the evidence as if they were a judge at trial. At the OSHA investigation stage, preponderance of the evidence is not required, only enough evidence for the Investigator to conclude a judge could find (not necessarily will find) a violation occurred.

Revision of OSHA’s Whistleblower Investigations Manual

OSHA’s Whistleblower Investigations Manual outlines the standards, procedures, and other information relative to the handling of retaliation complaints under the various whistleblower statutes delegated to OSHA. In its first update since September of 2011, OSHA now has a revised Whistleblower Investigations Manual. Some of the highlights include:

Front Pay

The revised Manual lists the factors to consider when determining if an award of front pay (i.e., future lost wages) is appropriate: the complainant’s job or a comparable job is no longer available; the complainant is not physically able of performing his job; an employer’s offer of reinstatement is not made in good faith; there is “extreme hostility” between the parties and reinstatement would be too disruptive; or returning to work would cause debilitating anxiety or otherwise risk the complainant’s mental health.

Emotional Distress

The Manual’s discussion of emotional distress has been expanded from one paragraph to two pages. Although medical testimony is not necessary, it still is important for the complainant’s testimony to demonstrate manifestations of the distress and a causal connection between the adverse actions and the distress.


Chapter 6 has been extensively revised to provide updated guidance regarding remedies and settlement agreements.

ARB Decision in Leiva v Union Pacific Railroad

The ARB’s Decision in Leiva v Union Pacific Railroad is notable for implicitly recognizing that a signed leniency waiver does not bar a FRSA claim or damages for lost wages. Also, it recognizes that reports of generalized verbal threats with no physical contact qualifiy as a hazardous safety condition actionable under Section 20109’s Subsection (b)(1).

For more information on Federal Rail Safety Action Section 20109 railroad whistleblower matters, go to the Rail Whistleblower Library, which includes a Summary of Rail Whistleblower Rights.

Historic Settlement Confirms FRSA Coming of Age

Posted in Federal Rail Safety Act

In 2007, Congress passed a law designed to change the profoundly unsafe workplace culture on our nation’s railroads: Section 20109 of the Federal Rail Safety Act. Eight years later, the concerted action of OSHA, judges, and juries have forced the railroads to move beyond denial and anger to a grudging acceptance of the fact the FRSA is here to stay. And now, in a sure sign the FRSA has come of age, a railroad has agreed to settle a FRSA case for $699,000 with no confidentiality.

It is fitting this historic settlement comes in the Araujo v. New Jersey Transit Rail case. Tony Araujo was one of the first to use the FRSA to fight back against the retaliatory abuse of rail management. The Circuit Court opinion in his case will remain a landmark of railroad whistleblower retaliation law. And now his settlement sets an important precedent about the value of FRSA cases.

Tony has no physical injuries. He has been working full time for the past six years with the rest of his career ahead of him. He lost $60,000 in wages from his disciplinary suspension, but his case demonstrates that the value of a FRSA case is not driven by lost wages. Rather, a FRSA settlement must reflect the railroad’s total exposure to any and all economic losses, unlimited emotional distress, punitive damages, and attorney’s fees. Tony was adamant his bottom line was $699,000 with no confidentiality. Confronted with a jury trial, the Railroad made a rational business decision to limit its exposure and pay Tony’s demand with no confidentiality clause.

No confidentiality was a deal breaker for Tony. Confidentiality clauses freeze in place the chilling effect of retaliation. After a seven year legal battle, Tony refused to let his case be swept under that rug. Now Tony is free to talk to anyone anytime about anything and everything that happened to him. And that includes the Press, so the word will get out and encourage other rail workers to stand up for their rights.

It is one thing for a railroad’s legal advisors to engineer a settlement in order to avoid paying out even more money at trial; it is quite another for every level of rail management to internalize the cultural changes that will put a stop to FRSA lawsuits. That will happen only when railroads put the final missing piece in place: namely, holding individual managers personally accountable for conduct that violates the FRSA. If managers realize they will be fired or have to pay FRSA damages out of their own pockets, the culture will change overnight.

The NJT manager who decided to file the disciplinary charges against Tony is General Superintendent Joseph Meade. OSHA found his conduct violated the FRSA, and the Federal Railroad Administration also fined New Jersey Transit for violating regulations in connection with Tony’s case. Now the Railroad is paying $699,000 to avoid paying out even more. But instead of losing his job, Superintendent Meade is still working for the Railroad and presumably still looking to move up the ranks of management. So, same old same old.

Only when managers see FRSA violations derailing careers will the retaliation stop. Until then, the lawsuits will keep coming.

Eight years ago, Section 20109 of the FRSA was a formless law with many unanswered questions. Thanks to Tony Araujo’s courageous trail blazing, the FRSA now is a well-trodden path with clear direction signs. It has been an honor representing Tony all along the way, and heartening to see his case settled to his satisfaction. For more information on the Federal Rail Safety Act, go to the free Rail Whistleblower Library.