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

 A leading U.S. Circuit Court of Appeals has clarified when rail workers can recover damages for outrageous conduct by their employer railroad. Building on two cases that I handled (Metro North Railroad v. Buckley in the U.S. Supreme Court and Higgins v. Metro North Railroad in the Second Circuit), the Second Circuit Court of Appeals has declared that a worker can recover for a purely emotional injury (involving no physical impact) only if he or she was within a "zone of danger of physical impact."

 Goodrich v. LIRR involved an electrician who sought to recover under the Federal Employers Liability Act (FELA) for his emotional distress after a fellow worker intentionally posted his HIV positive status on a company bulletin board. The Circuit Court ruled that under the FELA the electrician could not recover because there was no physical impact or threat of physical impact involved. So no matter how outrageous the conduct, unless there is some physical impact or imminent threat of serious physical impact, under the FELA a railroad worker has no recovery for emotional distress.

But that is not the case if the worker is protected by the Federal Rail Safety Act. Under the FRSA, physical impact is not necessary for the recovery of emotional distress damages, and a worker can recover for any emotional distress resulting from a railroad's violation of his FRSA rights. And punitive damages up to $250,000 also are recoverable under the FRSA for outrageous conduct by the railroad.

So, even if a worker has no claim under the FELA for emotional distress, he still may be able to recover emotional distress damages under the FRSA. 

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Fighting Federal Rail Safety Act claims just got a lot more expensive for railroads. Two recent appellate court decisions confirm that---no matter how small a worker's FRSA economic damages may be--the railroad has to pay the FULL amount of the worker's attorneys fees and costs. The appellate decisions apply to FRSA cases in the administrative law system as well as in federal court.

The Second Circuit Court of Appeals is just one step below the United States Supreme Court. In an opinion directly applicable to FRSA cases, the Second Circuit held there is no such thing as a "de minimis" award in a fee-shifting case. In Millea v. Metro North Railroad, the worker succeeded on one of two FMLA counts and recovered $615 in wages. Instead of awarding Millea's attorney $144,000 in attorney fees, the trial judge only awarded $204, finding that the award was "de minimis" and had "no public policy significance." Declaring that to be "legal error" and an "abuse of discretion," the Second Circuit reversed.

The Second Circuit stressed that by enacting fee-shifting provisions in statutes such as the FRSA, Congress "has already made the policy determination that such claims serve an important public policy purpose disproportionate to their cash value." As such, there is no such thing as a "de minimis" recovery under the FRSA. Such

claims are often small-ticket items, and small damages awards should be expected without raising the inference that the victory was technical or de minimis. . . . Especially for claims where the financial recovery is likely to be small, calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery.

Similarly, the administrative appeals court for the FRSA, the Administrative Review Board (ARB), confirms that when a worker prevails on any part of his claim, he "is entitled to all costs and expenses including attorney's fees reasonably incurred in bringing his complaint." And the ARB flatly refuses to reduce an attorney's fee award because the amount of the fee is larger than the wages recovered by the worker. Why? Because to do so would chill attorneys from taking cases where the economic losses are small in relation to the time expended by the attorney. Thus, in Furland v. American Airlines, the worker was awarded $915 in lost wages and $39,000 in attorney's fees, and the ARB refused "to reduce the attorney fee award based on its disproportionate size or because the worker only prevailed on part of his claims." So even when a worker only wins part of his FRSA claim, the railroad still has to pay the full amount of attorney's fees, no matter how small the lost wages may be.

Bottom line? The reflexive denial of FRSA claims is no longer a cost-free option for railroads. Every worker's attorney can rest easy in the knowledge that the more a railroad drags out a FRSA case, the more the attorney will get paid. And railroads must be prepared to pay ALL the fees for the lawyers on BOTH sides, even in small damage cases where only one part of the claim succeeds.

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It's one of the hoariest acts in the railroad repertoire of retaliation: first, invent rules setting an arbitrary deadline for the reporting of injuries, and then use the threat of discipline under those rules to discourage the reporting of injuries. Classic examples of absurd reporting rules are Metro North Railroad's "all injuries must be reported immediately" and CSX Transportation's "all injuries must be reported prior to the end of the shift." Such arbitrary rules outlaw entire categories of FRA reportable injuries.

No more. Under the Federal Rail Safety Act, the reporting of injuries cannot be used as the basis for discipline. And because any discipline for "late reporting" is necessarily based on the reporting of an injury, it is a prima facie violation of the FRSA. And railroads who continue to discipline for "late reporting" are getting slammed with record high punitive damages. See, for example, Harvey v. Union Pacific Railroad.

So, thanks to the FRSA, there is no longer any such thing as the "late reporting" of an injury. The railroad repertoire of retaliation just keeps getting smaller and smaller.

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Once again, OSHA has slammed Metro North Railroad with punitive damages for disregarding the Federal Rail Safety Act rights of its employees. This time it is for using prior injuries to deny promotions, and the resulting punitive damage award is $125,000.

Like many railroads, Metro North has a policy and practice of considering an employee's history of reporting injuries when evaluating that employee for a promotion. Here, ironworker Bill Ordner passed all the hurdles for a locomotive engineer job, but then, after the final background check phase, was handed a letter denying him the promotion with no explanation. He had reported injuries within the prior three years, and when Metro North refused to provide OSHA's Whistleblower Office with the information on which the denial was based, OSHA drew a negative inference against Metro North and concluded that Ordner's reporting of injuries was a contributing factor in Metro North's denial of the promotion.

Here are OSHA's words of warning to railroads nationwide:

Metro North automatically assigns points to an employee's personnel record, thereby subjecting the employee to other adverse consequences such as disqualification for promotion or craft transfer, solely for lawfully reporting a work-related injury. Metro North's enforcement of this policy, to the extent that it punishes employees for reporting work-related injuries, on its face violates FRSA. Such practices produce a chilling effect on reporting injuries in the workplace, jeopardizing employee safety. Furthermore, Metro North's refusal to provide OSHA with certain documents requested during this investigation is consistent with its conduct in past investigations. Metro North's pattern of refusal to provide OSHA with requested information during FRSA investigations demonstrates willful disregard for the law and the rights of its employees.

OSHA's make whole remedies include: ordering the Railroad to promote Ordner to the position of locomotive engineer with a seniority date of November 24, 2008 and full back pay; $125,000 in punitive damages; another $15,000 in emotional distress and attorney's fees; and the posting of the FRSA Notice to Employees in all 120 stations on the Railroad.

When will railroads learn that the FRSA has made the reporting of injuries a neutral, penalty-free event? For the full text of the Merit Finding, click here.

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OSHA's Whistleblower Office has slammed Metro North Railroad with punitive damages for using a Federal Rail Safety Act complaint as a basis for disciplining a worker. After a laborer at Metro North's New Haven Shop filed a FRSA complaint, the Railroad charged the worker with "Conduct unbecoming a Metro-North employee in that you filed a false statement in your complaint to OSHA claiming violations of the Federal Rail Safety Act." Metro North then held a disciplinary trial on that charge and issued a 30-day suspension. Even though Metro North later dropped the suspension and the worker lost no wages, OSHA nevertheless imposed over $80,000 in punitive damages and attorney fees against the Railroad.

OSHA found that "All the evidence indicates that the management officials most involved in the trial and decision knew that the charges and subsequent discipline were retaliatory but they allowed it to happen anyway." OSHA went on to warn railroads:

The acts of bringing disciplinary charges and instituting trial proceedings against an employee for filing a complaint with OSHA and accusing the employee of lying to OSHA in those charges and proceedings have a chilling effect on the Railroad's employees and would tend to dissuade others from asserting their rights under FRSA. Even if the charge is later dropped, that does not remedy this chilling effect, as the act of bringing the charge against an employee undermines all of the Railroad's employees' willingness and ability to exercise their most basic rights under FRSA. . . . Metro North's conduct in retaliation against an employee for filing a FRSA complaint with OSHA exhibited a reckless disregard for the law and complete indifference to the Complainant's rights and the rights of Metro North's other employees. Bringing disciplinary charges against an employee that on their face threaten discipline for claiming violations of FRSA (regardless of whether the charges are later dropped) functions to chill employees from exercising their most basic rights under FRSA.

In a Press Release, OSHA's Regional Administrator indicated that the FRSA is designed to remedy the "culture of silence in which hazardous conditions are masked because employees will be fearful of reporting them" and stressed it is "unconscionable" for a railroad to discipline an employee for  invoking his FRSA rights.

The message to railroads nationwide is: workers who file FRSA complaints are protected from any discipline that is based in whole or in part on the filing or content of the complaint. So don't even think about using a FRSA complaint as the basis for discipline, unless of course you enjoy getting hit with punitive damages. For the complete text of the decision, click here. For access to the FRSA Library, click here.  For a National Public Radio piece on this Award, click here.

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Teddy Roosevelt would be proud. 102 years after he signed the original rail safety statute into law, the Federal Employers Liability Act is still doing its job: exposing the unsafe practices of railroads and holding railroads accountable for the employee injuries that result.

The sad truth is, rail managers habitually ignore their own responsibility for the unsafe conditions that injure workers and instead focus all blame on the victim. This has the noxious effect of leaving the root cause of injuries in place, thereby prolonging the risk and guaranteeing more employee injuries. But in the right hands, the FELA is a powerful weapon that can pierce the armor of rail management denial and expose the truth about unsafe work practices. The remarkable story of electrician Jim Deacon is a case in point (see below for news links)

One of the most horrifying dangers on any railroad is a high voltage electrical arc explosion. During an arc explosion metal melts into a superheated plasma that engulfs workers in a fireball hotter than surface of sun, and is usually caused by defective cable connections. To prevent arc explosions, railroads must routinely inspect electrical equipment to confirm all connections are secure.  And to completely eliminate the risk of arc explosions, railroads must deenergize the power before employees begin working on the equipment.

On October 30, 2006, electrical tester Jim Deacon was assigned to work inside a third rail sectionalizing switch box that was an arc explosion waiting to happen. Because Metro North had not inspected that box, Metro North did not know there was a positive 700 volt cable under a metal motor housing that was completely disconnected and touching the metal housing, thus electrifying it. When Jim took off his protective gloves in order to thread a narrow #6 negative wire (following the practice in the field), the negative wire happened to touch the improperly electrified metal motor housing, sparking an arc explosion fireball. Jim spent a week in the Burn Unit with second and third degree burns over 15% of his body. Over the next year he endured three surgeries with multiple skin grafts.

And what of Jim's Metro North managers? Instead of taking responsibility for causing the explosion by their unsafe practice of not inspecting and not deenergizing, Metro North blamed Jim for his injury and disciplined him for not wearing gloves at the moment of the explosion. And instead of preserving the crucial evidence, the managers destroyed the cable end and connector barrel involved in the explosion, and denied they had shot any videotape during their investigation. Fortunately an anonymous source mailed Jim a copy of the video shot by the top manager showing him personally ordering workers to reach inside the live box without protective gloves on, the very same act for which the manager disciplined Jim.

Jim returned to work in the Metro North Power Department for 17 months, but the ongoing unfair blame and unsafe working conditions took a severe toll on his psychological condition, to the point he was medically disqualified from working.

But the FELA finally forced the Railroad to admit the truth. After 3.5 years of blaming Jim, on the eve of trial Metro North admitted the explosion was caused by its negligence and that Jim did not contribute to his injuries in any way. This crucial vindication--plus the $1.1 million Metro North will pay Jim--would not have happened without the FELA.

So Teddy Roosevelt's rail safety law is indeed working as intended. For a two minute video regarding the arc explosion, go to the New Haven Register news site, where a copy of rail safety expert James Sottile's excellent Report detailing the failures of Metro North management is available as well.

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The civil penalties for discrimination just got steeper and more painful for Metro North Railroad and Long Island Railroad. Metro North and LIRR now are subject to new penalties of up to $100,000 for violations of New York State's Human Rights Law. N.Y. Exec. Law Section 290 et seq.

New York's law prohibits discrimination in employment based on disability, age, sex, or race. Now, for conduct occurring after July 6, 2009, Metro North and LIRR are exposed to penalties of $50,000 for such discrimination and up to $100,000 for discriminatory acts that are willful, wanton, or malicious. These civil penalties may be demanded in civil lawsuits brought by railroad employees, and apply not only to the Railroad but to individual supervisors and managers.

The New York Commissioner of Human Rights declared "this amendment to our law will provide the Division with a very powerful tool to fight discrimination." Press Release. And how. So Metro North and LIRR railroad managers beware, your decision to discriminate will cost you dearly. 

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