The Inside Story on the FRSA's First Punitive Damages Order
Last month, the first reported Order imposing punitive damages against a railroad for violating the FRSA anti-retaliation law came to light. It concerned retaliatory conduct by Amtrak in Seattle, but the OSHA Whistleblower Office Press Release announcing the Order provided few details about what actually happened.
Well, my curiosity was piqued. I managed to get my hands on OSHA's Findings and Final Investigation Report, and the details are very telling.
The employee was working in the King Street Station in Seattle. In the rail yard north of Holgate Street she stepped off a platform onto a parking area that was not properly maintained (potholes, uneven ground, rocks) and twisted her left ankle on a rock. She reported the injury to her supervisor, who saw her swollen ankle, and she booked off injured. Amtrak immediately charged her with violating the usual vague all-encompassing "safety" rules (including Amtrak's "Standards of Excellence," whatever that is), and held a disciplinary hearing. Initially she was fired, but that was reduced to a 30 day suspension without pay.
The employee filed a FRSA retaliation complaint, and OSHA Whistleblower's office investigated. OSHA found Amtrak's managers had "a mind-set that employees are always at fault when they are injured on the job" and "engaged in intimidation by assessing severe punishment against employees who report injuries, which sends a chilling effect to all employees not to report injuries for fear of losing their employment." OSHA ordered Amtrak: to pay the employee her back wages along with punitive damages; to expunge the discipline from her file; and to not retaliate or discriminate against her in any manner in the future.
To me, the most remarkable thing about this case is how typical the scenario is: an employee reports a FELA on-the-job injury, and the railroad reacts by filing bogus disciplinary charges against the employee. This happens every day on railroads all over the country. The fact punitive damages were ordered for such a common situation bodes ill for railroads like Metro North, the LIRR, NJ Transit, MBCR, Amtrak, and CSX where the management culture encourages such knee jerk disciplinary retaliation against employees who report injuries. The FRSA is designed to change that culture by enforcing the free and unfettered reporting of injuries. And punitive damages are the hammer that will force such a cultural change. So railroad managers beware: you now are on notice that trying to discipline an employee who reports a railroad injury will put you squarely in the crosshairs of a FRSA punitive damage action.
Would the new law put an Issue preclusion on FELA? That is could an injured employee file harassment through the D.O.L without Jeopardizing his rights under FELA.
P.S I had your article linked by Law professors blog. http://lawprofessors.typepad.com/laborprof_blog/
The short answer is that the new FRSA law does NOT preclude an injured employee's right to proceed with an FELA claim. The FELA provides a statutory right to recover for damages caused by an on-the-job personal injury (such as pain and suffering, medical expenses, and lost wages caused by the medical condition resulting from the injury). By contrast, the FRSA protects employees against retaliatory discipline or discrimination, and allows recovery of any lost wages due to being disciplined, plus attorney fees and punitive damages. I will be posting an entry discussing this in greater detail, but employees do not have to worry about choosing between a FELA claim and an FRSA action.
This case is being fought by Amtrak scheduled to be heard before an administrative law judge tomorrow June 16th. Will post the out come.