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Train Law Blog

The Source for Railroad Injuries & Whistleblower Protection

Update on Notable FRSA Cases

Posted in Federal Rail Safety Act

The steady stream of FRSA Section 20109 whistleblower decisions continues apace. Here are some recent notable decisions to keep in mind.

Railroad Bad Faith Conduct

The decision by U.S. District Judge Susan Richard Nelson in Johnston v. BNSF Railway Company is remarkable in several respects. Judge Nelson granted the employee’s Motion for Reconsideration and reversed her prior summary judgment dismissal of the FRSA claim, in part due to a Railway Labor Act arbitrator’s ruling voiding the discipline and reinstating Johnston with full back pay. The Judge noted that a railroad’s “inconsistent application” of its rules and its proffer of reasons that are “unworthy of credence” are enough to allow a jury to infer a retaliatory motive. And the Judge also confirmed that the cat’s paw theory applies: the fact the ultimate decision maker is ignorant of an employee’s protected activity is not a defense when lower level managers with some knowledge of the protected activity provided the information on which the final decision maker based his decision.

Factors Affecting Transfer of Venue

For a discussion of the various private interest and public interest factors controlling a decision on a motion to transfer venue, see Neylon v. BNSF Railway Company.

Bifurcation Not Indicated

In federal court cases involving combined FELA injury and FRSA whistleblower retaliation claims, the attempts by railroads to bifurcate the case into two separate trials have not met with much success. As Judge Nelson pointed out in Johnston, any jury confusion or undue prejudice “can be addressed by careful cautionary instructions to the jury.” And in Wooten v. BNSF Railway Company, the Judge explained why the fact FELA and FRSA claims have distinct elements is not controlling: “Jurors are routinely asked to resolve multiple claims involving distinct elements, defenses, and burdens of proof in a single case.” And given that combined FELA and FRSA claims are factually related with overlapping evidence, it is in the best interest of judicial economy to try them together.

Adverse Action and Inextricably Intertwined

In Stallard v. Norfolk Southern Railway Company, 2017 Ad. Rev. Bd. LEXIS 61 (ARB No.16-022 October 5, 2017), the Administrative Review Board reminds us of the FRSA’s low threshold for adverse action: “where termination, discipline, and/or threatened discipline are involved, there is no need to consider the alternative question whether the employment action will dissuade other employees.” And the ARB also reconfirmed that where “the protected activity and the adverse action are ‘inextricably intertwined,’ there exists a presumptive inference of causation.” And what does inextricably intertwined mean? In the words of the ARB: “Where the basis for the adverse action cannot be explained without discussing the protected activity, the protected activity and adverse action are inextricably intertwined.”

For the complete texts of the cases cited above, click on their links. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

What Is A Hazardous Safety Condition?

Posted in Federal Rail Safety Act

Rail workers who report a “hazardous safety condition” are protected from retaliation by FRSA subsection (b)(1)(A). There are not many cases discussing the scope of that protection, but a recent federal district court decision brings it into sharper focus. Head v. Norfolk Southern Railway Company.

The 3rd Circuit was the first court to comment on (b)(1)(A). In dicta, the Circuit reasoned that while (b)(1)(A) must protect reports of railroad related safety hazards, it would not protect hazards totally unrelated to the railroad. PATH v. DOL (Bala).

In Head, the district court found that reporting bad-order tags and complaining about a utility vehicle’s lack of visibility qualified as “good faith reports of a hazardous safety condition.”  Head also discusses three other actions that qualify as (b)(1)(A) protected activities: a written statement to a trainmaster regarding unsafe walking conditions on a bridge, Foster v BNSF Railway Company; a verbal complaint about smoke in the workplace, Jackson v. Union Pacific Railroad Company; and a locomotive engineer’s refusal to continue working with a conductor who had threatened him, Leiva v. Union Pacific Railroad Company. The refusal in Leiva qualified as a “report of a hazardous safety condition” because “the level of communication between an engineer and conductor is very important and essential to the safe operation of a train.”

The take away is: the scope of (b)(1)(A) is not limited just to the condition of railroad train cars or engines. Its plain language is broad, and embraces any human or non-human condition that threatens the safety of employees or the safe operations of trains. Here is the complete text of Head v. Norfolk Southern Railway Company. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

When the FRSA’s 180 Day Filing Window Opens (and Closes)

Posted in Federal Rail Safety Act

Filing a Federal Rail Safety Act whistleblower retaliation complaint with OSHA within 180 days of a railroad’s adverse action is a threshold issue that can derail the best of cases. So when does that 180 day window open?

The United States Supreme Court tells us:

a limitations period commences when the plaintiff has a “complete and present cause of action.” A cause of action does not become complete and present for limitations purposes until the plaintiff can file suit and obtain relief.

Green v. Brennan (2016).  OK, but that still begs the question, what exactly is the date a railroad worker “can file suit and obtain relief” under the FRSA? Especially given the extended disciplinary process on railroads.

In Dugger v. Union Pacific Railroad Company, the Administrative Review Board answers that question thus:

The limitations period begins to run from the time that the worker knows or reasonably should know that the challenged act has occurred. Thus, a railroad violates the FRSA on the date that it communicates to the employee its intent to take an adverse employment action, rather than the date on which the employee experiences the adverse consequences of the railroad’s action.
In FRSA whistleblower cases, the statute of limitation runs from the date an employee receives “final, definitive, and unequivocal notice” of an adverse employment decision. “Final” and “definitive” notice is a communication that is decisive or conclusive, leaving no further chance for action, discussion, or change. “Unequivocal” notice means a communication that is free of ambiguity or future possibilities.

Dugger involved a manager who received a termination letter explicitly disqualifying him from returning to work in any agreement craft. His attempt a month later to exercise his rights as a locomotive engineer was denied. When he filed a FRSA complaint within 180 days of that denial but more than 180 days from the termination letter, his complaint was dismissed as untimely.

The ARB rejected Dugger’s argument that because he did not have any damages until his bid to return as engineer was denied, the statute did not begin to run until then:

Given the public policy of the whistleblower laws, the issue of whether a complainant has sustained damages has never been a prerequisite to a finding of retaliation: the absence of a tangible injury goes only to remedy, not to whether the employer committed a violation of the law.

OK, so how does that play out in context of railroad whistleblower retaliation? Certainly a Notice imposing discipline after a trial is a concrete adverse action, as is the signing of a waiver to avoid more severe discipline.

However, what about the charge letter ordering the employee to attend the hearing? Or the hearing itself? Arguably they are not a “final” or “conclusive” adverse employment action, as  the pending charges still can be withdrawn or not proven. But best to avoid getting sidetracked into that argument. File the complaint with OSHA within 180 days of the initial charge letter, and amend the complaint as needed to incorporate any subsequent disciplinary actions.

So the take away is, don’t let the 180 day window slam shut on your rights. File your FRSA whistleblower retaliation complaint within 180 days of the railroad’s initial indication it intends to subject you to the disciplinary process. And if necessary, amend that complaint to include any post-hearing formal discipline.

Here is the complete text of Dugger v. Union Pacific Railroad Company. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

An $8 Million Whistleblower Settlement

Posted in False Claims Act fraud

I am pleased to announce a settlement totaling over $8 million dollars in a case brought by two whistleblower retaliation clients. Well may you ask: “Wait a minute, how do you leverage two individual employee whistleblower retaliation claims into a more than $8 million dollar settlement?” And the answer is: “Through the alchemy of the False Claims Act.”

My clients are pharmacists who were fired in October 2013 after insisting their employer comply with federal regulations governing the payment of drug prescriptions by Medicare. For more details on their case, see the U.S. Department of Justice’s Press Release and my Firm Press Release.

What transformed their individual retaliation claim into a multimillion dollar settlement was the involvement of federal monies, which made the False Claims Act applicable. The FCA is an extremely complex statute that when skillfully applied allows whistleblowers to add multimillion dollar premiums to their retaliation claims.

The purpose of the FCA is to punish the dishonest use of governmental monies and thus deter others from defrauding taxpayers. Examples of false claims include: falsely certifying a condition of payment; billing for services not done or that are unnecessary; over billing; billing for substandard service or goods; or failing to pay or refund monies owed to the government. There is a six year statute of limitations, so any false claims going back six years are fair game.

The FCA imposes triple damages and fines against the defrauding party, and entitles the whistleblower relator to receive a bounty of 15% to 30% of the total. However, FCA cases are fraught with hurdles and pitfalls. They can only be brought by an attorney on behalf of a whistleblower. Only the first relator to file can recover a bounty. The complaint must be filed under seal. And any public disclosure or breach of the seal can be fatal to a relator’s case.

Many FCA cases concern Medicare payments to health care providers or pharmaceutical companies. But defense contractors and any other businesses that directly or indirectly receive federal funds also are subject to a false claim action. One area that has not received the attention it deserves is transportation infrastructure projects.

Transportation infrastructure construction projects are subject to the False Claims Act because they depend on substantial federal and state funding. Such projects include the construction or renovation of tunnels, bridges, highways, stations, and ports, as well as publicly funded railroad capital improvements. For example, in the greater New York City area alone, a multitude of projects are underway at the MTA, Amtrak, Metro North Railroad, the Long Island Rail Road, PATH, and New Jersey Transit. The FCA applies to similar construction projects nationwide. Click here for a list of some of those projects.

So here is the message to all the managers and employees involved in such transportation construction projects: be on the look out for potential false claims. If you have concrete information showing the misuse of federal or state monies, do not go public until you contact an experienced FCA attorney to ensure you follow the special procedures of the FCA. Any discussion will be kept confidential, and any resulting FCA complaint will be filed under seal. You may receive a multimillion dollar bounty for protecting taxpayer dollars. Click here to learn more about the False Claims Act, so that when confronted with evidence taxpayer dollars are being lost to fraud or waste, you can do the right thing.

Two Recent FRSA Punitive Damages Decisions

Posted in Federal Rail Safety Act

Here are two recent federal court decisions affirming the amount of punitive damages awarded by the Administrative Review Board and by a district court jury.

In Jason Raye v. Pan Am Railways, the Administrative Law Judge awarded the statutory maximum of $250,000 in punitive damages despite the fact Jason Raye was not actually disciplined and lost no wages. The Administrative Review Board affirmed that decision, explaining that the employer’s misconduct need not be egregious or outrageous, only that it be in “reckless or callous disregard” of the employee’s rights.

The Railroad appealed to the Circuit Court, and the First Circuit Court of Appeals affirmed the ALJ, holding: “we conclude that the ALJ’s decision to award punitive damages of $250,000, to punish and deter what he perceived to be a culture of intimidating employees and discouraging them from engaging in protected activity, was within the realm of his discretion.”

The Circuit noted FRSA “punitive damages are warranted if a railroad:

  • acted with malice or ill will, or
  • with knowledge that its actions violated federal law, or
  • with reckless disregard or callous indifference to the risk that its actions violated federal law

As for the amount of the punitive damages, the Circuit Court confirmed the “ALJ was entitled, within wide limits, to decide how much weight to afford to each of the relevant facts, to assess the credibility of the witnesses, and to make the fact-sensitive and discretionary moral judgments” required.

In Timothy Dendy and Jason Polk v. National Railroad Passenger Corp., a federal court jury awarded each plaintiff $711.43 in back pay and $125,000 in punitive damages. Amtrak asked the district judge to set aside the jury’s punitive damage awards, arguing there was no evidence of Amtrak’s recklessness or callous indifference to the plaintiffs’ FRSA whistleblower protection rights.

The district judge rejected Amtrak’s argument, noting direct evidence a railroad knew it was violating an employee’s FRSA rights is not required. Rather, it is sufficient to produce circumstantial evidence of the railroad’s “knowledge that it may be acting in violation of federal law.” And it is the role of the jurors to issue a moral judgment on the railroad’s conduct via their punitive damages award:

Ultimately, an award of punitive damages is a discretionary moral judgment that the defendant has engaged in conduct that is so reprehensible that it warrants punishment. The Court will not second-guess the jury’s judgment.

Here is the full text of the Raye v. Pan Am and Dendy v. NRPC decisions. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

Recent FRSA Circuit Court Decisions

Posted in Federal Rail Safety Act

The 8th Circuit has issued a spate of FRSA decisions falling outside the main stream of other Circuits. It is important to put them in perspective.

Araujo v. Kuduk: a distinction without a difference

Citing the Congressional Record and the leading whistleblower decision in Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993), the 3rd Circuit in Araujo explained why the contributing factor standard did not require a railroad employee to prove the manager taking the adverse action had a retaliatory motive. Araujo v. NJT Rail Operations, 708 F.3d 152 (3rd Cir 2013). The 8th Circuit is trying to draw a distinction between itself and the 3rd Circuit, but it is a distinction without a difference.

In Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir 2014), the 8th Circuit noted:

the FRSA knowledge requirement may be satisfied by circumstantial evidence the employer had actual or constructive knowledge of protected activity. . . . We agree . . . that, under the [FRSA] statute’s “contributing factor” causation standard, “[a] prima facie case does not require that the employee conclusively demonstrate the employer’s retaliatory motive.” . . . But the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.

The use of the phrase “intentional retaliation” is simply a maladroit way of saying the managers who took the adverse action must have had some knowledge of the employee’s protected activity. Which has always been the case. Knowledge of the protected activity = intentional retaliation. The more accurate phrasing actually is: “intentional retaliation prompted by some knowledge of the employee’s protected activity.” If the supervisors taking the adverse action had no knowledge of the employee’s protected activity, then the  contributing factor element is not satisfied. But that is nothing new or different. The 8th Circuit’s “intentional retaliation” comment is a distinction without a difference.

In Kuduk the 8th Circuit also took a gratuitous swipe at the 3rd Circuit’s Araujo decision by footnoting the following dicta:

In our view, the Araujo panel may have improperly relied on Marano . . . for its no-need-to-show-motive conclusions because the court in Marano was construing a federal employee whistleblower statute that required only an ultimate showing of causation in fact (‘because of’), not discrimination.

But that dicta is simply wrong. In fact Marano interpreted and applied the “contributing factor” burden of proof standard, which is the very same standard cited in AIR-21 and incorporated by reference into FRSA Section 20109. The Administrative Review Board has stated many times that the “contributing factor” standard is the standard elucidated in Marano, see e.g., Palmer v. Canadian National Railway, ARB No. 16-035,  ALJ No. 2014-FRS-154 (ARB Sept. 30, 2016), as have other Circuits, see e.g., Halliburton v. Administrative Review Board, 771 F.3d 254 (5th Cir. 2014).

The 8th Circuit continues to cite Kuduk’s erroneous dicta. Blackorby v. BNSF Ry. Co., 849 F.3d 716 (8th Cir. 2017), and Heim v. BNSF Ry. Co., 849 F.3d 723 (8th Cir. 2017). But that is no reason for other courts to do so. Anytime a railroad cites Kuduk, make sure the court understands the phrase “intentional retaliation” is simply drawing a distinction without a difference.

Laches Dicta

To prevail on a common law defense of laches, a defendant must prove the plaintiff unreasonably and inexcusably delayed filing the lawsuit, resulting in actual prejudice to the defendant. In pure dicta, and without benefit of any briefing or argument, two members of an 8th Circuit panel recently engaged in sua sponte speculation about the applicability of the common law principle of laches to Section 20109 cases. Gunderson v. BNSF Ry. Co., 2017 U.S. App. LEXIS 4258 (8th Cir. 2017). While such uninformed speculation has no precedential effect, in deciding when to opt out of the DOL and file a FRSA complaint in federal district court, attorneys representing FRSA clients should be mindful of the laches principle.

Scope of Hazardous Safety Conditions

In its PATH (Bala) decision, the 3rd Circuit commented in dicta that subsection (b)(1)(A)’s phrase “hazardous safety condition” is limited to conditions related to railroad work:  “we think that subsection (b)(1)(A) must be read as having at least some work-related limitation.” The 3rd Circuit did NOT say (b)(1)(A) is limited to work-related injury conditions. On the contrary, the Circuit Court was pointing out subsection (b)(1)(A) protects the reporting of any hazardous condition that is related to an employee’s railroad work. However, the district court in Murdock v. CSX Transp. Inc., 2017 U.S. Dist. LEXIS 46835 (N.D. Ohio 2017), entirely missed that point, erroneously merging (b)(1)(A)’s reporting of a hazardous condition with a (b)(2)(B) refusal to work. The 3rd Circuit’s PATH decision did no such thing.

For more information on the FRSA Section 20109 whistleblower statute, go to the free Rail Whistleblower Library.

Amtrak Hit With $900,000 Whistleblower Award

Posted in False Claims Act fraud

Amtrak’s Office of Inspector General (OIG) is supposed to investigate and remedy retaliation against employees who blow the whistle on contractor fraud or safety hazards. But in a ruling that raises serious questions about Amtrak’s commitment to whistle blower protection, OSHA has found Amtrak terminated one of its own OIG Supervisors for raising concerns about contractor fraud and safety. That Supervisory Special Agent is my client, Michael DeJoseph. OSHA has ordered Amtrak to immediately reinstate him and pay him over $900,000 in damages.

Michael’s long career in law enforcement is impressive. A graduate of the Connecticut State Police Academy and the FBI National Academy, he served 29 years on the Newtown Connecticut Police Department, retiring as Chief of Police. He then joined Amtrak’s OIG, where for ten years he was Supervisory Special Agent-in-Charge of the NYC and Boston offices, overseeing sensitive investigations into allegations of fraud and mismanagement by high level Amtrak management.

The trouble began when Michael discovered that ten concrete inspectors who certified the concrete used on Amtrak’s East River Tunnel projects were not actually certified to inspect concrete, and that Amtrak had been paying invoices based on the testing of those non-credentialed inspectors. Such fraudulent concrete testing posed obvious risks to the safety of Amtrak’s passengers using those tunnels, and Michael pressed ahead with his investigation. But when he issued a subpoena for more information, Amtrak’s Deputy Inspector for Investigations intervened and shut down the investigation. That Deputy Inspector then issued the first negative review in Michael’s career, eliminated his Supervisory position, and terminated him after claiming he was “not qualified” to be rehired as a Special Agent.

OSHA found OIG’s “not qualified” claim was a pretext to retaliate against Michael for raising fraud and safety concerns related to the uncertified inspections of Amtrak’s tunnel concrete. OSHA ordered Amtrak to immediately reinstate Michael into his former Supervisory position and pay him $892,550 in wages, interest, emotional distress, and punitive damages. With attorney fees the total is well over $900,000. Here is the full Merit Finding in Michael DeJoseph v. NRPC. And here is OSHA’s Press Release and Twitter post.

The take away? All railroad employees and managers must know that the Federal Rail Safety Act will protect them when they raise concerns over contractor fraud or safety. This is especially important going forward, given the billions of dollars in transportation infrastructure projects sure to flow from federal and state governments in the near future. Fraud by contractors working on tunnel, bridge, highway, and railroad infrastructure projects must not be tolerated. And anyone with knowledge of such fraud should know they may be entitled to rewards in the millions of dollars if they follow the special provisions of the False Claims Act (which requires the filing of a complaint under a seal of secrecy). Here is more on whistleblower awards under the qui tam provisions of the False Claims Act. For more on the rights of railroad whistleblowers, go to the free Rail Whistleblower Library.

ARB Reaffirms (c)(2) Protects Non Work Related Medical Conditions

Posted in Federal Rail Safety Act

In a major decision with national implications, the Administrative Review Board confirms that Federal Rail Safety Act subsection (c)(2) does indeed protect treatments for non-work related medical conditions. Williams v. Grand Trunk Western Railroad. In so doing, the ARB explicitly rejects the 3rd Circuit’s holding in Bala v. PATH, which imposed a work related limitation on the scope of (c)(2) protection. The result is that in every Circuit other than the 3rd, it now is the official position of the Department of Labor that (c)(2) protects employees who follow their treating doctor’s orders for a non work related medical condition.

The plain language of subsection (c)(2) states: “A railroad may not discipline or threaten to discipline employees for following the orders or treatment plan of a treating physician.” Congress did not include any work-related limitation, and the ARB explained why the 3rd Circuit’s imposition of a work-related limitation is “counter to the intent of Congress”:

the express language set out in Sections 20109(c)(1) and (2), as well as the legislative history, makes it clear that Congress did not intend to foreclose protection from railroad workers who were following a physician’s treatment plan for a non-work-related condition or injury.

Because there is no rule of intercircuit stare decisis, federal agencies are not bound by the decision of a circuit court in litigation arising in other circuits. Thus, we decline to apply the holding in PATH to cases not arising in the Third Circuit.

The wrong headedness of the 3rd Circuit’s Bala “work related” limitation has become glaringly obvious in light of the recent string of deadly derailments related to the untreated medical conditions of locomotive engineers. Situational awareness must be maintained at all times, and no one wants an employee in an unsafe condition to perform safety sensitive railroad work. When an employee follows his doctor’s orders not to work in an unsafe condition, that absence must be encouraged and protected. Period.

Bottom line? The ARB has given a green light to workers in all the other circuits to press complaints with OSHA and Administrative Law Judges when railroads discipline them for following the orders of their treating doctors, regardless of whether the medical condition is work or non-work related. Here is the complete text of Williams v. Grand Trunk Western  Railroad Company. For more information on FRSA Section 20109, go to the free Rail Whistleblower Library.

New Guidelines on FRSA Settlement Agreements

Posted in Federal Rail Safety Act

Recognizing it’s hard to blow the whistle once you’ve been gagged, OSHA has issued new guidelines prohibiting the use of gag and confidentiality clauses in settlement agreements. See Policy Guidelines for Approving Settlement Agreements in Whistleblower Cases.

OSHA reviews settlement agreements between whistleblowers and their employers “to ensure they are fair, adequate, reasonable, and in the pubic interest, and that the employee’s consent was knowing and voluntary.” OSHA now updates “the criteria that OSHA will use to evaluate whether a settlement impermissibly restricts or discourages protected activity.”

OSHA confirms it will not approve any gag or confidentiality provision that “prohibits, restricts, or otherwise discourages an employee from participating in protected activity.” Such protected activity includes but is not limited to providing information to the government, filing a complaint with a governmental agency, participating in an investigation, or testifying in proceedings regarding an employee’s past or future conduct.

Any provision that restricts such activity is prohibited, as is any provision that requires an employee to notify his employer before filing a complaint or communicating with the government regarding the employee’s past or future conduct. And even adding the phrase “except as provided by law” to a confidentiality clause will not spare it from deletion by OSHA.

The take away? Railroad attorneys should not even think about gagging employees with confidentiality clauses, because OSHA will rip off the gag every time. Here is the full OSHA Policy Guidelines for Approving Whistleblower Settlements. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

ARB Clarifies FRSA Punitive Damages Standard

Posted in Federal Rail Safety Act

The Administrative Review Board has handed down an important punitive damages decision that also shows how to eliminate a railroad’s affirmative defense. In Jason Raye v. Pan Am Railways, Inc., the Railroad charged the employee with making false statements in a Federal Rail Safety Act complaint filed with OSHA. Although Raye was never actually disciplined and lost no wages, the ALJ awarded him the statutory maximum of $250,000 in punitive damages. Here are the highlights:

How To Eliminate a Railroad’s Affirmative Defense

The ARB stressed that once an employee shows his protected activity contributed in whole or in part to the adverse action,

to avoid liability the railroad must prove by clear and convincing evidence that it would have taken the same action absent the employee’s protected activity. . . .Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain.

This means that

The lack of credible explanations from the employer makes the ALJ’s finding of causation that much stronger and effectively eliminates the employer’s ability to establish an affirmative defense.

Thus, all an employee need do to eliminate the railroad’s defense is to expose the falsity of the railroad’s explanation or demonstrate the lack of credible evidence supporting it.

When Punitive Damages Are Warranted

The ARB follows the United States Supreme Court’s standard for when an employer’s conduct triggers a punitive damages award, namely

where there has been reckless or callous disregard for the plaintiff’s rights, as well as intentional violations of federal law. The inquiry into whether punitive damages are warranted focuses on the employer’s state of mind, and thus does not require that the employer’s misconduct be egregious or outrageous.

The “requisite state of mind” is confirmed when a railroad consciously disregards an employee’s FRSA protected rights or intentionally interferes with the exercise of those rights. And although egregious or outrageous conduct by a railroad is not necessary to establish the requisite state of mind, its presence certainly supports an inference of the requisite state of mind.

The Amount of Punitive Damages

The ARB notes the purpose of punitive damages is to punish employer conduct that “calls for deterrence and punishment.” The amount to accomplish that purpose is up to the Judge’s discretion:

Punitive damages are not awarded as of right upon a finding of the requisite state of mind; rather, the question of whether to award punitive damages is in the ALJ’s discretion. . . . An ALJ’s task after determining that an award of punitive damages would be appropriate is to determine the amount necessary for punishment and deterrence, which is “a discretionary moral judgment.”

Finally, the ARB stresses that the FRSA’s “statutory limit on punitive damage awards” eases “any reluctance to award punitive damages where minimal or no compensatory damages have been awarded.”

In other words, it is perfectly appropriate to award the maximum statutory limit of $250,000 even in cases with little or no economic damages. And that was the case in Raye: Jason Raye was not actually disciplined and had no lost wages, yet the ARB upheld an award of $250,000 in punitive damages to punish the Railroad’s conduct and “to deter similar conduct in the future.”

Here is the full Decision in Raye v. Pan Am Railways, Inc. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.