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The Source for Railroad Injuries & Whistleblower Protection

ALJ Rejects Overly Broad Settlement Agreement

Posted in Federal Rail Safety Act

In a warning to over-reaching defense attorneys, an Administrative Law Judge has refused to approve a proposed whistleblower retaliation settlement agreement because it “is so overbroad as to contravene public policy.”

The Agreement attempted to release “both corporate and individual respondents of all claims known and unknown of any and every kind,” and included a draconian “hold harmless on any taxes” clause. Moreover, the proposed Agreement included a confidentiality clause in contravention of the Department of Labor’s policy mandating public access to its files.  As a result, the Judge ordered the attorneys to submit a narrower settlement agreement or go to trial.

Although this arose in a STAA whistleblower case, the ALJ’s concerns equally apply to overreaching releases in Federal Rail Safety Act cases. Here is the ALJ’s full Order Disapproving Settlement Agreement.

The Broad Scope of FRSA Adverse Action Reaffirmed

Posted in Federal Rail Safety Act

A federal judge has confirmed the principle that “adverse action” prohibited by the Federal Railroad Safety Act is any action that would dissuade a reasonable employee from engaging in FRSA protected activities (such as reporting injuries or safety hazards or following a treating doctor’s orders). It is not limited to the actual imposition of discipline, and merely charging an employee with a rule violation is enough to trigger FRSA protection.

William Conrad v. CSX Transportation, Inc. concerns a conductor who, after reporting safety violations, was charged with violating CSX Safety Rules. Before he was actually subjected to the imposition of discipline, Conrad filed a Section 20109 whistleblower retaliation complaint. CSX argued that merely charging an employee with a disciplinary rule violation is not an “unfavorable personnel action” that can be remedied by the FRSA.

The federal district judge disagreed, and issued a decision consistent with the position of the U.S. DOL’s Administrative Review Board, Vernace v. PATH. Noting that “exemptions from remedial statutes are to be construed narrowly,” District Judge William M. Nickerson found that in passing the FRSA, “Congress meant to cover broad categories of punitive employer conduct.” All a rail worker need show is that the adverse action “might have dissuaded a reasonable employee from” engaging in the protected activity. And given the progressive discipline scheme used by every railroad, even a first level charge with no actual discipline imposed qualifies as adverse:

 A reasonable employee, faced with the threat of such action, may be discouraged from reporting violations of federal safety law or hazardous conditions. A reasonable employee may even feel compelled to act against his interest in bodily safety in order to avoid finding himself on the road to termination.

Based on the implications of successive serious charges under CSX policy, the Court cannot say that a reasonable worker would not be dissuaded from engaging in protected conduct by successive disciplinary charges brought by CSX.

And so railroads cannot escape liability under the FRSA when they point the gun of discipline at a worker without pulling the trigger. The mere act of pointing the gun is enough. Here is the full decision of Conrad v. CSX Transportation, Inc. To learn more about the FRSA, go to the Summary of the FRSA and the free Rail Whistleblower Library.

Late Injury Report Discipline Results in Summary Judgment Against Railroad

Posted in Federal Rail Safety Act

Railroad defense lawyers love to file summary judgment motions because it delays the trial while padding their hourly bills.  But the Federal Rail Safety Act now allows employees to turn such motions into a sword that guts the railroad’s defense.

The facts in Smith-Bunge v. Wisconsin Central, Ltd  follow a familiar pattern. Todd Smith-Bunge felt some pain in his low back when he slipped on taconite pellets, but figured it was the usual soreness from an old back injury that would go away after a few days. But when the pain persisted for six days, an MRI scan confirmed he had a new injury.  He then reported it as a new injury, and the Railroad charged him with bad faith late reporting and suspended him for 15 days.

Smith filed a FRSA complaint in federal court, and the Railroad filed a summary judgment motion arguing the late injury report was not made in good faith and thus was not a FRSA protected activity.  Smith responded by filing his own motion for summary judgment, asking the federal  judge to declare the Railroad violated his FRSA right to report a work-related injury without being disciplined.

U.S. District Judge Ann D. Montgomery found Wisconsin Central did indeed violate the FRSA, and ordered a trial on damages.  In so doing, the judge noted:

the FRSA does not require that reported injuries be “new”; nor does the FRSA require employees follow any particular reporting regime. The FRSA only requires that the employee act in good faith to inform his or her employer of a work-related injury.  By calling his supervisor to inform him that he was suffering from low back pain and needed to see his doctor the next day, Smith acted in good faith to report a work-related injury.

The judge also rejected the Railroad’s absurd argument that “Smith was disciplined for making an untimely injury report, not for reporting the injury itself.”  The judge stressed that railroad “rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all” and pointed out how a railroad’s artificially short window for injury reporting violates the FRSA:

As a general matter, railroad work is physically strenuous and feeling stiff and sore is common among railroad workers. In this context, it is not unreasonable to expect that a worker may not appreciate a new injury, or the extent of an initial injury, until several days pass.  This is particularly true where the injury suffered is a more subtle muscular or internal injury, as opposed to a more obvious injury like an open wound or broken bone.  If a worker who suffers a subtle injury knows that reporting the injury after 24 hours will result in disciplinary action, including the possibility of an unpaid suspension, his or her incentive to report the injury is chilled.  This result is contrary to the safety that the Railroad aims to promote by its “prompt” reporting policy, and it is also in direct conflict with the purpose and goals of the FRSA.

The judge also rejected the Railroad’s argument that its duty to report injuries to the Federal Rail Administration justified its Rule requiring the reporting of all injuries within 24 hours, pointing out “a railroad is only required to report injuries to the FRA every 30 days and it is also able to submit amendments to its regular report.”

Given all this, the judge found that “no reasonable juror could conclude that Smith’s injury report was not a contributing factor to the Railroad’s 15-day disciplinary suspension levied against him” and that “no reasonable juror could conclude the Railroad would have disciplined Smith absent a late report of his injury.”  The judge thus denied the Railroad’s motion for summary judgment, granted Smith’s motion establishing liability, and ordered a trial solely on the amount of damages to go forward.

So, thanks to the FRSA, a favorite defense tool easily can be turned into a sword that guts the railroad’s defense.  Here is the full Decision in Smith v. BNSF Railway.  To learn more about the FRSA, go to the Summary of the FRSA and the free Rail Whistleblower Library.

Two More Federal Court FRSA Decisions

Posted in Federal Rail Safety Act

Railroads are running out of defenses to the Federal Rail Safety Act. Their initial “election of remedies” gambit is dead and buried. Their second line of defense–charging employees who report injuries with “falsification and dishonesty”–has been obliterated by the “inextricably intertwined” principle upheld by judges and appellate courts. In desperation, railroads have been forced to fall back on the “decision maker ignorance” defense. But that defense du jour has been shredded by the “cat’s paw” principle recognized by the Supreme Court and ARB.

And now comes two federal district court decisions further undermining the “ignorant decision maker” and “falsification” defenses.

Ignorant Decision Maker

In the “ignorant decision maker” defense, the railroad claims the “final” or “sole” decision maker did not know the employee had reported an injury or safety hazard or was following a doctor’s orders. But the ”cat’s paw” principle applies, so even if just one of the group of individuals involved in the entire disciplinary process was aware of the protected activity, that is sufficient to establish FRSA liability. Rudolph v. National Railroad Passenger Corporation.

Now there is another way to undercut that defense: even when there is no direct evidence showing at least one of the managers involved in the disciplinary process knew of the protected activity, close temporal proximity alone is sufficient to establish FRSA liability.

In Robin Young v. CSX Transportation, the CSX Legal and Labor Relations Departments decided to allow former dispatcher Robin Young to exercise his trackman seniority and return to work as a trackman. But within a week after CSX’s Headquarters was served with a copy of Robin Young’s FRSA Complaint, CSX reversed its decision and told him to stop working as a trackman. CSX argued it was not liable because there was no documentary proof that the “sole decision maker” was aware of the FRSA Complaint.

The federal judge rejected that defense, holding that temporal proximity alone is sufficient to overcome the “ignorant decision maker” defense. Temporal proximity refers to the closeness in time between the protected activity and the decision to take the adverse action, and that alone is enough to infer the railroad knew about the protected activity and that it was a contributing factor in the adverse action.

Falsification

Jeffrey Davis v. Union Pacific Railroad Company involved an employee who, for one month after turning his foot on unstable ballast, maintained his pain was not work related but rather gout. Then, after a doctor diagnosed a severe ankle sprain, he did report it as work-related, and the Railroad fired him for dishonesty and misrepresentation of facts.

Union Pacific argued the employee’s injury report was not protected by the FRSA because it was not made “in good faith.” But the federal court rejected that defense, confirming the focus is only on the employee’s good faith belief, not on the railroad’s perception:

If the employee actually believed, at the time he reported the injury, that it was work-related, then his activities were in good faith and were protected under the FRSA. … Whether the railroad believed the employee was acting in good faith is irrelevant.

This is consistent with the Worcester v. Springfield Terminal Railway Company federal court decision holding that “good faith” is satisfied when the employee “held an honest, subjective belief that there was a hazardous safety or security condition.”

To learn more about the FRSA, go to the Summary of the FRSA and the free Rail Whistleblower Library.

 

Federal Courts Protect Rail Workers Refusal To Violate Safety Regulations

Posted in Federal Rail Safety Act

Rail workers under management pressure to violate FRA safety regulations, take heart. Two ground breaking federal court decisions uphold your Federal Rail Safety Act right to be free from retaliation when you refuse to violate federal safety regulations.

Gregory Morgan v. Norfolk Southern Railway Co., was brought by a Road Foreman after he was demoted for refusing to fabricate window dressing safety violations.  Because Norfolk Southern “desperately wanted to give the appearance that it was improving its safety standards,” it required its Road Foremen to report “a strict quota of safety violations” and “to make violations up in order to do so.” When Road Foreman Greg Morgan refused to fabricate safety violations, the Railroad transferred him to a position in another state with lower rank and pay.

The federal judge rejected Norfolk’s attempt to apply the more restrictive standards of other employment retaliation statutes: “The FRSA contains, on its face, a lighter causation standard than do other employment retaliation statutes,” which “are not applicable to this case.”  Instead, the very lenient “contributing factor” standard applies, and the judge found there was sufficient evidence for a jury to conclude “that the demotion was, at least in part, payback for plaintiff’s protected refusal to fabricate.”

Fulk v. Norfolk Southern Railway Co., illustrates the tragic consequences of railroad retaliation.  John Fulk worked as a Car Inspector at Norfolk’s Linwood Yard in North Carolina.  He inspected freight cars for compliance with Federal Rail Administration regulations, and was required to place “bad order” tags on noncompliant cars so they would be kept out of service until repaired.

Fulk objected to the attitude of Norfolk Southern’s managers toward FRA regulations.  They “consistently chose to get trains out on time rather than comply with regulations,” and set a bad order quota “of fifty such orders at any one time at Linwood Yard no matter how  many cars were defective or noncompliant.”  Employees who continued to find bad orders were “targeted for harassment.”

Fulk refused to follow management’s scheme, and “continued to tag cars that were defective or noncompliant with FRA regulations.”  As a result, his “bad order tags were routinely removed before the car had been repaired” and he was “subjected to abusive intimidation and disciplinary threats to his job.”   Fulk reported all this to Norfolk Southern management, but Norfolk “never took action to stop such treatment.”

Finally, Norfolk Southern filed false charges against him and scheduled a formal Hearing setting him up for termination. Three days before the Hearing, Fulk drove to work, signed in, returned to the employee parking lot, and shot himself in the head with a pistol. He died from the wound.

Prior to his death, Fulk had drafted letters to the FRA reporting the conduct of Norfolk Southern and to OSHA complaining of the retaliation.  But before he sent the letters, “the scheduled Hearing combined with years of harassment” precipitated his emotional breakdown and suicide.

A few days after his death, Fulk’s widow filed the FRSA Complaint with OSHA and submitted the letter to the FRA.  The FRA investigated and discovered numerous regulatory violations at the Yard.  The employees the FRA interviewed confirmed Fulk had been the target of retaliation, but no one was willing to sign a witness statement for fear of retaliation by Norfolk Southern management.

The Railroad moved to dismiss the case because it was Fulk’s widow, not Fulk himself, who filed the FRSA Complaint with OSHA . In “a question of first impression,” the district judge decided that a FRSA claim “survives the death of a railroad employee” as long as the employee was alive when he gave the third party a directive to file the complaint.  That is, “a third party is empowered to commence an action under the FRSA on an employee’s behalf” if the “employee was alive at the time he gave the directive to file the complaint.”

The operation of our nation’s railroads affects the safety of everyone, and rail safety is in the public eye as never before.  It is not difficult to imagine the outrage of jurors to the type of railroad conduct exposed in Morgan and Fulk, outrage that will find expression in their verdicts.  Thanks to the unlimited emotional distress damages available under the FRSA, the public now has the power to force railroads such as Norfolk Southern to suffer the economic and public shaming consequences of their profoundly unsafe cultures.  To learn more about the FRSA, go to the Summary of the FRSA and the free Rail Whistleblower Library.

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.