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.
And now, for the rest of the story . . .
U.S. Dept. of Labor Awards Amtrak Employee
Compensatory, Punitive Damages in Historic Retaliation Case
An Amtrak Coach Cleaner has been awarded substantial damages for retaliation by her employer for reporting an on-the-job ankle sprain. The U.S. Department of Labor ordered Amtrak to pay Nicole Anderson, a Seattle, Washington Amtrak employee, $60,000 in compensatory damages and $100,000 in punitive damages in a decision issued August 26, 2010.
Amtrak terminated Ms. Anderson’s employment in November 2007 after she reported to her manager that she had sprained her ankle while working at Amtrak’s King Street Station facility. While Amtrak claimed it fired Ms. Anderson for failing to exercise common sense, Administrative Law Judge Steven B. Berlin concluded otherwise, finding that Ms. Anderson established at trial that Amtrak retaliated against her in violation of the Federal Railroad Safety Act for reporting her work-related injury.
Explaining the $100,000 punitive damages award, Judge Berlin wrote, “Amtrak’s conduct reflects a degree of conscious disregard for how its practices obstruct Congress’ mandate in the Federal Rail Safety Act. Punitive damages are appropriate to correct and deter this conduct.â€
The U.S. Occupational Safety and Health Administration launched an investigation into the matter after one of Ms. Anderson’s co-workers reported Amtrak’s action to the agency’s Seattle regional office. Amtrak reduced its discipline of Ms. Anderson from termination to a 30-day suspension without pay while OSHA’s investigation was pending. Following a thorough investigation, OSHA concluded in October 2008 that Amtrak terminated Ms. Anderson in retaliation for reporting her ankle sprain, and ordered the railroad to pay Ms. Anderson her lost wages, expunge her employment file, and to pay Ms. Anderson $20,000 in punitive damages for its illegal conduct. Ms. Anderson returned to work at Amtrak in January 2008, where she still works today.
Amtrak appealed OSHA’s decision to the U.S. Department of Labor’s Office of Administrative Law Judges, and that appeal culminated in a trial de novo before Judge Berlin in June 2009. Attorney Fredric A. Bremseth represented Ms. Anderson at trial. This was the first case to be tried under a 2007 amendment to the Federal Railroad Safety Act, 49 U.S.C. §20109, that makes it illegal for railroads to retaliate against employees who report work-related injuries.
As the result of Amtrak’s illegal conduct, Judge Berlin ordered the railroad to:
• Expunge Ms. Anderson’s personal file of any disciplinary record or negative references related to her October 1, 2007 injury accident;
• Amend its disciplinary records to show no more than a verbal warning in connection with Ms. Anderson’s late arrival at a safety meeting and expunge the 4-day suspension without pay that Amtrak imposed for that incident;
• Pay Ms. Anderson back pay in the amount of $2,666.67, plus interest from the date of termination until the date of payment at the rate prescribed by law;
• Pay Ms. Anderson $60,000 in compensatory damages;
• Pay Ms. Anderson $100,000 in punitive damages; and
• Pay Ms. Anderson for her attorneys’ fees and costs.
“This is an historic case,†said Attorney Bremseth, “that vindicates Congressional findings that railroads do in fact engage in retaliation and harassment of injured employees in order to keep them from reporting work-related injuries.†Mr. Bremseth added, “we are very pleased for our client, and hope this landmark case will put railroads on notice that they can no longer intimidate their employees to keep them from reporting on-the-job injuries.â€
You can read Judge Berline's Order and Decision in this case at the U.S. Department of Labor's website at:
http://www.oalj.dol.gov/DMSSEARCH2/SEARCHRESULTS.jsp