Train Law Blog : Railroad Injury Lawyer & Attorney : Cahill Goetsch & Perry Law Firm : Railway Worker Injuries & Accidents

Here's stark confirmation that the cost of retaliation is punitive damages and broken management careers.

A jury in Newark, New Jersey, just found that the top manager in the NJ Transit Police Department, Chief Joseph Bober, retaliated against female officer Theresa Frizalone after she complained about discrimination. The jury awarded her $1.5 million in damages (with another $500,000 in attorney fees to come). $1 million of that is for punitive damages to send a message to the Railroad that such retaliation is totally unacceptable in our society and will not be tolerated by juries.

And what happened to Chief Bober? The day after the verdict, Bober was no longer working for NJ Transit. He had been Chief since 2002 and had been earning $159,000 a year. All that gone with a jury's finding of retaliation. So here's my question to managers like Bober: Is it worth it? Is whatever twisted satisfaction you gain from retaliating against your employees worth destroying your career while forcing your railroad to pay millions in punitive damages?

Unless railroad managers start getting it, such verdicts are only going to increase. The Federal Railroad Safety Act, 49 USC 20109, prohibits retaliation against employees who report injuries or complain about safety or security issues, and juries are free to award punitive damages against managers who violate that new law. So railroad managers are now on notice, and the choice is theirs to make. They can put their careers at risk by retaliating, or they can respect the rights of their employees to engage in activities protected under the FRSA.

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Talk about leveling the playing field. OSHA's FRSA Whistleblowers have sent another powerful message to rail management: sorry guys, but the days of business as usual are officially over. Supervisors are no longer free to retaliate at will against employees who raise safety concerns.

It all started when a Union Pacific Railroad Company welder performing work on adjacent railroad tracks asked for a lookout and tools to make the job safer. His reward? Instead of a thank you for trying to be safe, his supervisor abolished his job, forcing him to increase his daily commute by 131 miles and taking him away from his family for extended periods of time.

The welder filed a whistleblower complaint under the Federal Railroad Safety Act, and OSHA's investigation concluded the Railroad's abolishment of the position was illegal retaliation. In so ruling, OSHA's regional administrator stated a simple principle that will reverberate throughout the railroad industry:

"A supervisor does not have the right to abolish a job position because he becomes annoyed by a worker voicing safety concerns."

Wow. Amen and Hallelujah, brother.

But that's not all. OSHA ordered the Railroad to reassign the welder to his former position, reimburse him for his travel expenses, and pay compensatory damages for his personal hardship. And to top it off, the Railroad was ordered to provide whistleblower rights information to all its employees. For the OSHA Press Release, click here.

So now it is getting very real for the railroads. The FRSA has taken away the right of managers to retaliate at will against employees who get under their skin by reporting injuries or raising safety concerns. From now on, any railroad arrogant enough to ignore the FRSA will be forced to pay dearly for it.

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I feel safer already. The Department of Homeland Security, through its Transportation Security Administration (TSA), has finally gotten around to promulgating new regulations strengthening security on passenger and freight railroads. The new regulations were to go into effect December 26, 2008, but the railroads successfully petitioned for a delay until April 1, 2009. The regs can be found at 49 CFR 1580. For the final report and full text, click here.

Suffice to say, every passenger and freight railroad now must have a Rail Security Coordinator who is available 24/7 to coordinate intelligence and security with the Transportation Security Administration and law enforcement agencies.

And every railroad now is required to "immediately report potential threats and significant security concerns to the Department of Homeland Security Freedom Center at 703-563-3240 or 1-877-456-8722."

Potential threats or significant security concerns are defined to include:

--interference with train crews;

--bomb threats;

--suspicious items that disrupt railroad operations;

--suspicious activity around rail cars or rail facilities;

--discovery of a firearm or other deadly weapon on a train, station, terminal, facility, storage yard, or other location used in the opeation of the railroad;

--indications of tampering with rail cars;

--possible surveillance of a train, facility, storage yard, or other location used in the operation of the railroad;

--threatening correspondence received by the railroad.

The reality is, the TSA has to rely on the eyes and the ears of railroad employees and passengers. So the slogan "If you see something, say something" now has to be changed to "If you see something, call the Freedom Center at 703-563-3240 or 1-877-456-8722." Not as catchy, but hopefully more efficient.

Also, special chain of custody and control requirements apply to freight railroad operations in High Threat Urban Areas (HTUA). HTUAs are listed in an Appendix to the regulations, and include areas around Boston, Jersey City/Newark, New York City, and Philadelphia. The railroad must physically inspect cars carrying "rail security-sensitive materials," keep them in a "rail secure area," and document the transfer of custody in writing or electronically.

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Sounds like Joe Szabo will be the next Head of the Federal Railroad Administration. If so, this is good news for rail labor and anyone concerned with promoting rail safety. Joe's background is as a conductor for both freight and passenger railroads, and until recently he served as Illinois state legislative director for the UTU. Joe has known Obama since Obama was an Illinois state legislator, so Joe will have the President's ear.

And speaking of Hope and Change, is it too much to hope for that Joe will take steps to increase the coordination between the FRA and OSHA's Whistleblower Office when it comes to investigating railroad violations of the new Federal Railroad Safety Act, 49 USC 20109? Congress assigned OSHA the responsibility to investigate FRSA retaliation complaints, but did not give OSHA the subpoena power to force recalcitrant rail managers to hand over the internal documents and data needed to prove patterns of systemic abuse. That's where coordinated efforts by the FRA can come in.

Many of the FRSA violations for retaliating against employees who report injuries and interfering with their medical treatment also are violations of the Internal Control Plan the FRA requires railroads to live by, 49 CFR Part 225. The FRA requires all railroads to publish and enforce an Internal Control Plan (ICP). The Metro-North Railroad ICP is typical, and reads as follows:

"Metro-North Railroad is committed to the complete and accurate reporting of all accidents, incidents, injuries, and occupational illnesses arising from the operation of the railroad. Metro-North is also committed to full compliance with the FRA's accident reporting regulations. Harassment or intimidation of any person that is calculated to discourage or prevent any person from receiving proper medical treatment or from reporting any accident, incident, injury, or occupational illness will not be permitted or tolerated. Disciplinary action will be taken against any employee, supervisor, manager, or officer of Metro-North Railroad who harasses or intimidates."

So a violation of the FRSA often will be a violation of a railroad's ICP, thus giving the FRA the jurisdiction and obligation to investigate. If the FRA works together with OSHA's Whistleblower Office to develop the information necessary to fully investigate such violations, the enforcement of the FRSA will be materially strengthened.

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 Some people just don't get it. CSX Transportation managers definitely fall into that group. In a lengthy Investigative Report released in March of 2008, the Federal Railroad Administration put CSX on notice that its management culture of harassment and intimidation intended to dissuade employees from reporting injuries had to stop. In response, CSXT made numerous representations to the FRA promising to change its behavior.

But guess what? The complaints of harassment and intimidation just kept flowing in to the FRA as if nothing had happened. By January of 2009, the FRA had had enough. On January 16th, the Acting Administrator of the FRA, Clifford C. Eby, issued a blistering three page letter to CSX Transportation President and Chief Executive Michael Ward. Eby pointed to the ongoing complaints despite the CSX's list of promises, and concluded: "It is clear that CSXT has failed to adequately address its culture of harassment and intimidation. . . . CSXT has not yet fulfilled its commitments made to FRA regarding harassment and intimidation. . . . the evidence shows that CSXT's response has been inadequate. In order to truly prevent any more instances of intimidation, CSXT must put forth a sustained good-faith effort to change its culture." For the FRA 01/16/09 letter, click here .

Clearly, the FRA's patience has run out. If CSX doesn't change its hostile management culture and change it quick, the FRA will step in and slap a compliance order on the CSX, putting the daily actions of CSX managers and supervisors under FRA oversight.

Meanwhile, whenever a CSX manager intimidates or retaliates against an injured employee, the new amendments to the Federal Railroad Safety Act allow that employee to file a FRSA retaliation complaint with OSHA's Whistleblower Office. And if OSHA does not promptly resolve the complaint, the employee can jump into federal court and have a jury award punitive damages of up to $250,000 against CSX. If the number of FRSA complaints coming out of places like CSX's West Springfield Yard in Massachusetts is any indication, federal juries are going to be very, very busy awarding punitive damages against railroads like CSX.

So while changing CSX's hostile management culture may be a tough nut to crack, the FRA and FRSA are like the pincer arms of a nutcracker, and CSX's nut is now caught firmly in that nutcracker's grip. With the increasing pressure being exerted by the FRA and the FRSA, it is only a matter of time before CSX's nut cracks wide open. 

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