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ARB Clarifies FRSA Punitive Damages Standard

Posted in Federal Rail Safety Act

The Administrative Review Board has handed down an important punitive damages decision that also shows how to eliminate a railroad’s affirmative defense. In Jason Raye v. Pan Am Railways, Inc., the Railroad charged the employee with making false statements in a Federal Rail Safety Act complaint filed with OSHA. Although Raye was never actually disciplined and lost no wages, the ALJ awarded him the statutory maximum of $250,000 in punitive damages. Here are the highlights:

How To Eliminate a Railroad’s Affirmative Defense

The ARB stressed that once an employee shows his protected activity contributed in whole or in part to the adverse action,

to avoid liability the railroad must prove by clear and convincing evidence that it would have taken the same action absent the employee’s protected activity. . . .Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain.

This means that

The lack of credible explanations from the employer makes the ALJ’s finding of causation that much stronger and effectively eliminates the employer’s ability to establish an affirmative defense.

Thus, all an employee need do to eliminate the railroad’s defense is to expose the falsity of the railroad’s explanation or demonstrate the lack of credible evidence supporting it.

When Punitive Damages Are Warranted

The ARB follows the United States Supreme Court’s standard for when an employer’s conduct triggers a punitive damages award, namely

where there has been reckless or callous disregard for the plaintiff’s rights, as well as intentional violations of federal law. The inquiry into whether punitive damages are warranted focuses on the employer’s state of mind, and thus does not require that the employer’s misconduct be egregious or outrageous.

The “requisite state of mind” is confirmed when a railroad consciously disregards an employee’s FRSA protected rights or intentionally interferes with the exercise of those rights. And although egregious or outrageous conduct by a railroad is not necessary to establish the requisite state of mind, its presence certainly supports an inference of the requisite state of mind.

The Amount of Punitive Damages

The ARB notes the purpose of punitive damages is to punish employer conduct that “calls for deterrence and punishment.” The amount to accomplish that purpose is up to the Judge’s discretion:

Punitive damages are not awarded as of right upon a finding of the requisite state of mind; rather, the question of whether to award punitive damages is in the ALJ’s discretion. . . . An ALJ’s task after determining that an award of punitive damages would be appropriate is to determine the amount necessary for punishment and deterrence, which is “a discretionary moral judgment.”

Finally, the ARB stresses that the FRSA’s “statutory limit on punitive damage awards” eases “any reluctance to award punitive damages where minimal or no compensatory damages have been awarded.”

In other words, it is perfectly appropriate to award the maximum statutory limit of $250,000 even in cases with little or no economic damages. And that was the case in Raye: Jason Raye was not actually disciplined and had no lost wages, yet the ARB upheld an award of $250,000 in punitive damages to punish the Railroad’s conduct and “to deter similar conduct in the future.”

Here is the full Decision in Raye v. Pan Am Railways, Inc. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

Landmark NTSSA Subway Whistleblower Decision

Posted in Subway Whistleblower

Most subway and bus workers probably don’t know it, but there is a federal law that protects them from any retaliation for reporting safety hazards in their workplace. It’s called the National Transit Systems Security Act, or NTSSA, and is a twin brother to the better known Federal Rail Safety Act whistleblower law protecting railroad workers. There have been very few decisions under the NTSSA, no doubt due to a pervasive culture of intimidation and retaliation that discourages whistleblowing by subway and bus workers. But that may change, given a landmark decision confirming the broad scope of the NTSSA, Janathan Harte v. New York City Transit Authority.

The NTSSA prohibits any public transportation agency from firing, demoting, suspending, reprimanding, or discriminating “in any other way against” employees for:

  • reporting a hazardous safety or security condition
  • refusing to violate or assist in violating any federal law, rule, or regulation relating to public transportation safety or security
  • providing information to any investigation regarding violations of any federal law, rule, or regulation relating to public transportation safety or security
  • providing information regarding the fraud or waste of public funds relating to public transportation safety or security
  • refusing to work when confronted by a hazardous safety or security condition related to performance of their duties, under certain conditions

The text of the NTSSA clearly protects employees where ever they work, but for the past nine years the largest subway system in the nation, the New York City Transit Authority, has pretended the NTSSA only applies to terrorist activity at passenger locations such as platforms and stations, and not to the shops and tracks where employees work. That dangerous fantasy is now exploded. A federal Administrative Law Judge has definitively declared that the scope of the NTSSA is not limited to terrorism but also includes employee work places, and thus employee “reporting of hazards that present a threat to employee safety” is protected activity under the NTSSA.

Janathan Harte worked at the NYCTA’s Linden Shop. After his internal complaints of safety hazards were ignored, he reported the hazards to PESH, the New York state agency that enforces OSHA standards in NYCTA work places. Two PESH inspectors then conducted a surprise inspection of the Shop. Harte and the Superintendent of the Shop accompanied them. When the inspectors came upon a drill press with no safety guards on it, they asked the Superintendent if the press was operational. The Superintendent said no, but Harte then walked over and turned on the machine, saying his co-workers do in fact use it. The Superintendent immediately blew up and threatened to take Harte off the overtime list and reassign him to “the rack.” After being warned by the PESH inspectors he could not retaliate against Harte, the Superintendent did not actually alter Harte’s overtime or job assignment. But the next day the Superintendent told Harte’s supervisors Harte was to blame for all the disruption resulting from the remedial actions PESH required after the inspection.

The issue at trial was, did the NTSSA extend to employee work places, and did the Superintendent’s threats constitute prohibited adverse action? After hearing all the evidence, the Judge ruled the NTSSA does indeed protect employee work areas such as shops, and that “a standalone threat, without a tangible loss of benefits, is sufficient to constitute an adverse action” under the NTSSA.

The NTSSA prohibits any adverse actions related to a protected activity such as reporting safety hazards, and a supervisor’s threats to alter the terms of an employee’s employment (wages, job assignments, etc) are adverse even if the threat is not carried out. This is because, given “the power imbalance that comes with the supervisor-subordinate relationship,” such threats “could reasonably dissuade workers from exercising their whistleblower rights.”  Accordingly, the Judge ruled the NYCTA did indeed violate Janathan Harte’s NTSSA right to report safety hazards, and awarded him damages.

The NTSSA is a very powerful law with the following “make whole” remedies:

  • an order voiding any retaliatory discipline
  • an order reinstating the worker with benefits and seniority unimpaired
  • an award of full back pay with interest
  • an award for any out of pocket expenses resulting from the retaliation
  • an award for emotional distress
  • a punitive damages award up to $250,000
  • an award for the attorney’s fees and costs of the worker’s own attorney

So, the message to subway and bus workers everywhere is, take Harte! Know that you have the right to report safety hazards in your workplace and that you will be protected from retaliation when you do. Don’t let any reluctance to blow the whistle on safety hazards endanger the lives of your co-workers or the public. Do the right thing, and you will be protected. Here is the full Harte v. New York City Transit Authority Decision. For more on the standards that apply to subway and bus whistleblowers, go to the free Rail Whistleblower Library.

ARB Clarifies FRSA Burdens of Proof

Posted in Federal Rail Safety Act

In a major en banc decision, the Administrative Review Board clarifies the burdens of proof applicable to ALJ whistleblower trials and explains how to apply that standard. Palmer v. Canadian National Railway. This is a must read decision for anyone interested in Federal Rail Safety Act whistleblower matters, but here are some of the highlights:

Proof of the Contributory Factor Element

 the first step of the AIR-21 whistleblower protection provision’s burden-of-proof framework requires the complainant to prove, by a preponderance of the evidence, that protected activity was a contributing factor in the unfavorable personnel action. It further concludes that there are no limitations on the evidence the fact finder may consider in making that determination, and where the employer’s theory of the case is that protected activity played no role whatsoever in the adverse action, the ALJ must consider the employer’s evidence of its non-retaliatory reasons in order to determine whether protected activity was a contributing factor in the adverse action.

However, the level of causation that a complainant needs to show contributing factor is extremely low: the protected activity need only be a “contributing factor” in the adverse action. Because of this low level, ALJs should not engage in any comparison of the relative importance of the protected activity and the employer’s non-retaliatory reasons. Since in most cases the employer’s theory of the facts will be that the protected activity played no role in the adverse action, the ALJ must consider the employer’s non-retaliatory reasons, but only to determine whether the protected activity played any role at all.

We have said it many a time before, but we cannot say it enough: A contributing factor is ‘any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.’ We want to reemphasize how low the standard is for the employee to meet, how broad and forgiving it is. Any factor really means any factor. It need not be significant, motivating, substantial or predominant, it just needs to be a factor. The protected activity need only play some role, and even an [in]significant or [in]substantial role suffices.

Importantly, if the ALJ believes that the protected activity and the employer’s non-retaliatory reasons both played a role, the analysis is over and the employee prevails on the contributing-factor question. Thus, consideration of the employer’s non-retaliatory reasons at step one will effectively be premised on the employer pressing the factual theory that non-retaliatory reasons were the only reasons for its adverse action. Since the employee need only show that the retaliation played some role, the employee necessarily prevails at step one if there was more than one reason and one of those reasons was the protected activity.

We cannot emphasize enough the importance of the ALJ’s role here: it is to find facts. The ALJ must consider all the relevant, admissible evidence and make a factual determination, under the preponderance of the evidence standard of proof, about what happened: is it more likely than not that the employee’s protected activity played a role, any role whatsoever, in the adverse personnel action? If yes, the employee prevails at step one; if no, the employer prevails at step one. If there is a factual dispute on this question, as is usually the case, the ALJ must sift through the evidence and make a factual determination. This requires the ALJ to articulate clearly what facts he or she found and the specific evidence in the record that persuaded the ALJ of those facts.

Proof of Railroad’s Affirmative Defense

 The second step involves a hypothetical question about what would have happened if the employee had not engaged in the protected activity: in the absence of the protected activity, would the employer nonetheless have taken the same adverse action anyway? On that question, the employer has the burden of proof, and the standard of proof is by clear and convincing evidence. For the ALJ to rule for the employer at step two, the ALJ must be persuaded, based on a review of all the relevant, admissible evidence, that it is highly probable that the employer would have taken the same adverse action in the absence of the protected activity. . . . It is not enough for the employer to show that it could have taken the same action; it must show that it would have.

The ARB’s full Decision is at Palmer v. Canadian National Railway. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

Landmark Seaman’s Protection Act Retaliation Award

Posted in Seaman's Protection Act

Under the Seaman’s Protection Act (SPA), merchant marine seamen enjoy the same protection against retaliation that railroad workers enjoy under the Federal Rail Safety Act. But due to the shipping industry’s pervasive culture of retaliation against seamen who report safety hazards to outside enforcement agencies, hardly any SPA cases have been brought. Now comes a landmark million dollar SPA award exposing that culture of intimidation and declaring it no longer will be tolerated.

The case is John Loftus v. Horizon Lines, Inc. and Matson Alaska, Inc. In 2013 Captain Loftus was Master of the Horizon Trader, an 813 foot long container ship operating on the eastern seaboard between New York, Jacksonville, and San Juan Puerto Rico. Despite his 20 year unblemished record as a Captain, in June 2013 he was abruptly removed as Master due to his reporting of safety violations to the U.S. Coast Guard and its delegated inspection agency, the American Bureau of Shipping.

The purpose of the SPA is to augment the Coast Guard’s limited enforcement resources by encouraging seamen to report possible violations of safety regulations. It does so by prohibiting retaliation against seamen who report possible regulatory violations to the USCG or ABS. The world of American Mariners is small and everyone knows everyone else. By removing Loftus as Captain for specious reasons, Horizon sent a chilling message throughout the industry that safety complaints will be punished. John Loftus filed a SPA case not only to clear his name but more importantly to remedy the profoundly unsafe effect of that message.

After a three day trial, United States DOL Administrative Law Judge Jonathan C. Calianos issued a detailed 48 page Decision that is a complete vindication of John’s character as a man and as a Captain. It is a landmark SPA decision that will encourage seamen to report safety violations and discourage management from retaliating when they do.

Judge Calianos found “Captain Loftus was the most safety conscientious Master in the entire Horizon Lines fleet” with “an unusually strong commitment to the safety of his vessel and crew.” But Captain Loftus’s insistence on calling Horizon’s attention to serious safety hazards was met with indifference and inaction. As a result, “Loftus resorted to reporting safety concerns to the regulatory agencies because of Horizon’s consistent failure to correct hazardous conditions aboard the Trader. Loftus was clearly a thorn in Horizon’s side.”

In removing Loftus as Master, the Judge found “Horizon’s conduct was reprehensible” because it engaged in “machinations,” “smoke and mirrors,” and “fabrication” to mask “the real reasons” for its removal of Loftus as Master, “namely to discipline Loftus for his protected activity.” In addition to awarding full back wages and emotional distress, the Judge found such reprehensible conduct required the imposition of punitive damages close to the statutory maximum, explaining:

the need to deter others from engaging in similar conduct is uniquely critical in the SPA whistleblower context given such claims involved public safety, and an adverse action may have a chilling effect on the willingness of other seamen to report a violation. This is especially true considering how small the marine industry is, and how quickly word travels within it. Horizon’s retaliation against Loftus is exceptionally troublesome considering his reputation for being an exemplar of safety, which is exactly what the SPA is designed to promote.

The damages resulting from Horizon’s retaliation totals over $1 million: $655,000 in back wages with a high rate of interest compounded on a daily basis; $225,000 in punitive damages; $10,000 for emotional distress; and over $200,000 in attorney’s fee and expenses.

Full disclosure: John Loftus is my client, and it was my privilege to try his case and help clear his name. I would like to extend a special thanks to the impressive marine safety experts who testified at trial on John’s behalf: Walcott J. Becker, Jr. (former Vessel Superintendent at Horizon Lines), Captain Kevin O’Halloran, Captain James Staples, and  Mark A. Bisnette (retired USCG officer).

For the sake of shipping safety, let us hope this landmark case encourages all seamen to freely exercise their SPA right to report safety hazards, and deters managers from retaliating when they do. Here is the full text of Loftus v. Horizon Lines, Inc. and Matson Alaska, Inc.

More On FRSA Punitive Damages

Posted in Federal Rail Safety Act

Another Circuit Court has clarified the standard for awarding punitive damages to rail whistleblowers, this time in the context of jury instructions.

 After Springfield Terminal Railway Company fired Jason Worcester for raising safety concerns, he filed a Federal Rail Safety Act whistleblower complaint in federal court.  The district judge instructed the jury that:

 you can award punitive damages if you find Springfield

  • acted with malice or ill will,
  • or acted with knowledge that its actions violated the FRSA,
  • or acted with reckless disregard or callous indifference to the risk its actions violated the FRSA

The jury responded with a $250,000 punitive damages award, the maximum amount allowed by the FRSA Section 20109 statute.

 The Railroad appealed, arguing the jury charge should have been limited solely to whether it “acted with malice.” In rejecting that argument, the Circuit Court endorsed the standard adopted by the United States Supreme Court and the Administrative Review Board, namely that “punitive damages may be awarded not only for actual intent to injure or evil motive, but also for recklessness, or for serious indifference to or disregard for the rights of others.”

 The take away? No proof of actual malice or ill will is necessary for FRSA punitive damages. It is sufficient for a worker to show either the railroad knew it was violating the FRSA, or acted with indifference to the possibility it was violating the FRSA.

 Here is the full text of Jason Worcester v. Springfield Terminal Railway Co. Given Worcester and the 10th Circuit’s recent decision in BNSF Railway Co. v. US DOL, the standard for determining the basis for and amount of FRSA punitive damages now is settled.  For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

FRSA Statute of Limitations Clarified

Posted in Federal Rail Safety Act

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

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

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

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

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

Spotlight on CSX Retaliation

Posted in Federal Rail Safety Act

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

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

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

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

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

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

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

Guideposts For FRSA Punitive Damages

Posted in Federal Rail Safety Act

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

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


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


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

Comparable Cases

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

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

Bad Faith Refusal to Allow Employee to Return to Work

Posted in Federal Rail Safety Act

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

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

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

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

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

When the FRSA’s 180 Day Window Opens

Posted in Federal Rail Safety Act

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

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

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

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

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

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

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