Two Decisions Clarifying FRSA Adverse Differential Treatment
The Federal Rail Safety Act prohibits a railroad from "discriminating in any way" against an employee who engages in the protected activity of raising a safety concern or reporting an injury. Such discrimination can take many forms, but two recent decisions highlight a classic example: namely, treating a worker differently from other similarly situated workers.
In Gunderson & Peterson v. BNSF Railway Co., AL J Paul C. Johnson, Jr. confirms that the FRSA prohibits a railroad from singling out for discipline an employee who engages in protected activity while ignoring similarly situated employees. Peterson was fired for accessing certain personal information relating to other employees, and Gunderson was fired for using "rough language" while talking to a supervisor. But Judge Johnson denied summary judgment because the Railroad "presented no evidence that it has terminated other employees for similar behavior." As such, the Railroad could not prove by "clear and convincing evidence" that it would have taken the same action even in the absence of the protected activity.
The facts of Infermo v. New Jersey Transit Rail Operations, Inc. are indeed classic. Infermo and his co-worker Gelmi are walking on ballast along the right of way. Both stumble in a washed out area, but only Infermo falls and is injured. He reports the injury, and is disciplined for violating the railroad's absurdly vague safety rules ("Employees must be aware of their surroundings . . . Employees must be alert and watch where they are walking"). His co-worker is not disciplined, nor are the railroad managers responsible for allowing the hazardous condition to exist.
The Railroad argued it legitimately disciplined Infermo because he did in fact violate those safety rules, but in denying summary judgment Senior U.S. District Judge Stanley Chesler explained why a FRSA jury would be entitled to reject that articulated reason:
his work partner [Gelmi] was walking along the same allegedly hazardous path and would have presumably, according to NJT's rationale for disciplining Infermo, failed to avoid the same tripping hazards. Indeed, Gelmi testified that he, too, lost his footing on the right of way but, unlike Infermo, was able to steady himself and avoid falling. Gelmi was not charged with any safety violations, nor required to attend any safety counseling. Infermo points out that the only difference between his conduct and Gelmi's conduct on the day in question is that Infermo suffered an injury whereas Gelmi did not. This evidence, the Court finds, casts doubt on NJT's articulated legitimate reason and would permit a jury to disbelieve it.
So the message is clear: unless a railroad disciplines everyone whose actions or inaction contributed to the injury incident (including managers), it can not single out the injured worker for discipline without violating the FRSA and inviting a jury to impose punitive damages.
Call me crazy, but there is an alternative: don't discipline anyone. Instead, take all the energy spent on disciplining the injured worker and redirect it toward identifying and correcting the causes of the hazardous condition so it will not injure again. That would truly promote safety while completely avoiding hefty FRSA damages. Just a thought.
