A Circuit Court has clarified when the doctrine of equitable tolling applies to FRSA Section 20109 time limitations.

In Sparre v. United States Dep’t of Labor, the 7th Circuit confirms the FRSA’s various time limitations for filing or appealing are not jurisdictional and therefore are subject to equitable tolling. However, the Court warns such tolling “is granted sparingly only when extraordinary circumstances far beyond the litigant’s control prevented timely filing.”

Here are the four principal situations in which equitable tolling may apply:

(1) when the opposing party has actively misled the movant about the cause of action;

(2) when the movant has in some extraordinary way been prevented from filing his or her appeal before the Board;

(3) when the movant has raised the precise statutory claim in issue but has done so in the wrong forum; and

(4) when the opposing party’s own acts or omissions have lulled the movant into forgoing prompt attempts to vindicate his rights.

The Court also notes that “parties represented by counsel are ordinarily not entitled to equitable tolling.” This is because attorneys are “presumptively aware” of any applicable time limits, and “clients are accountable for the acts and omissions of their attorneys.”

Here is the full decision in Sparre. For more on Section 20109 deadlines, go to FRSA Statute of Limitations. For more on the rights of railroad workers under the FRSA, go to the free Rail Whistleblower Library.

 

Did you know that rail workers who refuse to violate the Hours of Service Act are protected by Section 20109 of the FRSA? The Norfolk Southern Railway just found out the hard way.

In Lancaster v. Norfolk Southern Railway Company, the NS required a locomotive engineer to continued writing a statement beyond the time he outlawed. When he refused to violate the HSA by continuing to write the statement beyond his HSA deadline, his NS managers accused him of insubordination and suspended him without pay for 40 days.

The Judge held that is a violation of the FRSA. Noting “The Hours of Service Act was enacted to protect train crews and the public from the life-threatening risks posed by crew fatigue,” the Judge found the NS managers put their demand “for written statements ahead of their duty to obey and enforce a federal statute designed to keep railroads safe” and in so doing intentionally violated the FRSA.

The Judge awarded damages for back pay and emotional distress, as well as punitive damages due to NS’s reckless indifference to the right of its employees to comply with the HSA and its callous disregard of the safety considerations protected by the HSA. Here is the full Lancaster Decision. For more on the rights of rail employees under the FRSA, go to the free Rail Whistleblower Library.

 

We all know that “reporting in good faith a hazardous safety condition” is protected activity under Section 20109 of the FRSA. But what does “good faith” mean? Is it just the employee’s subjective belief, or must it also be objectively reasonable?

The cases are tending toward requiring both, and March v. Metro North Railroad is a recent example. There, the district judge found FRSA Section (b)(1)((A) requires both a subjective and objectively reasonable belief there was a hazardous condition. But in Frost v. BNSF Railway, the 9th Circuit confirmed that when answering that question, the focus always must be on the worker, not the railroad.

In Frost, the Circuit Court held it is reversible error to instruct a jury that a railroad cannot be held liable if it terminated an employee “based on its honestly held belief that the worker engaged in the conduct for which he was disciplined.” It is reversible error because an employee can be guilty of a disciplinary offense and still recover under the FRSA “if his filing of an injury report played only a very small role in the railroad’s decision-making process.”

Bottom line? A rail worker must show not only that he believed the conduct or condition constituted a safety hazard, but also that a reasonable person in his position would have believed so. What the railroad may believe is irrelevant.

So when reporting a safety hazard, make sure there is both a subjective and objective basis for belief. Here are earlier posts on good faith under the FRSA. For more on the rights of employees under the FRSA, go to the free Rail Whistleblower Library.

 

When can a $13,000 FELA injury turn into a $3.2 million Judgment against a railroad? Answer: When the railroad violates the Federal Rail Safety Act. Wooten v. BNSF Railway is yet another demonstration of the transformative power of Section 20109’s whistleblower protections.

When Zachary Wooten reported a wrist injury, BNSF accused him of dishonesty and fired him. The jury decided to send a message BNSF will never forget: $1.4 million in front pay, $500,000 for emotional distress, and $249,999 in punitive damages. The District Judge upheld the jury’s verdict, and added $42,732 in prejudgment interest, $657,107 in attorney fees, and $339,014 in costs and expenses, for a total Judgment of over $3.2 million.

The 20 page Decision is worth reading for many reasons, but here is a quote regarding the front pay award:

Wooten was wrongfully terminated by BNSF, cutting short what he hoped would be a lifetime career with great benefits and excellent pay. Prevailing under the FRSA entitles Wooten “to all relief necessary to make [him] whole.” The Court is convinced that a front pay award of $1,407,978 falls squarely within that statutory directive.

The FRSA allows FELA attorneys to look jurors in the eye and ask them “to send a message” that violations of the FRSA will not be tolerated. And jurors have done just that, sending multi-million dollar messages in cases where the FELA injury is relatively minor. It remains to be seen if railroads will ever “get it” and actually change their retaliatory cultures. But until then, judgments like Wooten will continue to be handed down. For more on the rights of rail employees under the FRSA, go to the free Rail Whistleblower Library.

 

Another Circuit Court has corrected the 8th Circuit’s misuse of the term “intentional retaliation” in FRSA litigation. In Frost v. BNSF Railway Company, the 9th Circuit soundly rejects the suggestion in Kuduk v. BNSF that Section 20109 requires proof of discriminatory animus separate from a showing that the employee’s protected activity was a contributing factor to the adverse action:

What BNSF misses is that the only proof of discriminatory intent that a plaintiff is required to show is that his or her protected activity was a “contributing factor” in the resulting adverse employment action. Showing that an employer acted in retaliation for protected activity is the required showing of intentional discrimination; there is no requirement that FRSA plaintiffs separately prove discriminatory intent. . . .

by proving that an employee’s protected activity contributed in some way to the employer’s adverse conduct, the FRSA plaintiff has proven that the employer acted with some level of retaliatory intent. . .

we hold that although the FRSA’s prohibition on “discriminating against an employee” ultimately requires a showing of the employer’s discriminatory or retaliatory intent, FRSA plaintiffs satisfy that burden by proving that their protected activity was a contributing factor to the adverse employment decision. There is no requirement, at either the prima facie stage or the substantive stage, that a plaintiff make any additional showing of discriminatory intent.

Well said. With its Frost v BNSF decision, the 9th Circuit joins the Administrative Review Board along with the 3rd, 5th, 7th, and Federal Circuits in rejecting Kuduk’s distortion of Section 20109. For more on the FRSA, go to the free Rail Whistleblower Library.

 

The data is in. Since FY 2014, the number of OSHA whistleblower investigators shrunk by 25% while the number of complaints ballooned by 30%. In FY 2018 alone, 1,137 private statutory retaliation complaints were filed, the majority by railroad workers under the Federal Rail Safety Act, followed by long-haul truckers under the STAA. Of all the cases resolved in 2018, three quarters were dismissed or withdrawn. In 2018, 60 cases opted out of OSHA into federal court.

For a fuller snapshot of OSHA’s whistleblower retaliation complaints data, including pie charts, click on this link  For more on the whistleblower rights of workers on railroads and elsewhere, go to the free Rail Whistleblower Library.

The Administrative Review Board provides further proof of the erroneous use of the phrase “intentional retaliation” in the 8th Circuit’s Kuduk decision. In Riley v. Dakota, Minnesota & Eastern Railroad, the ARB spells out why “intentional retaliation” simply does not apply to the FRSA’s contributing factor standard:

Continue Reading Further Correcting Kuduk’s Mischief

When a BNSF employee reports an on-the-job injury, the Railroad orders the employee to disclose medical information to a medical case manager. But when an employee reports a non-work related injury, the Railroad leaves them alone. BNSF employee Travis Klinger reported a work injury and was ordered to contact such a medical manager. When he declined to do so, he was suspended for “failure to comply with a direct order.” The Administrative Law Judge reversed that discipline and ordered BNSF to pay $100,000 in punitive damages. Klinger v. BNSF Railway.

Continue Reading When Failing to Comply With a Direct Order Is OK

The Federal Rail Safety Act is a “make whole remedy” statute, and a federal judge has clarified some important points regarding the range of remedies available to railroad employees who report injuries or safety hazards.

O’Neal v. Norfolk Southern Railroad Company concerned an employee who fell from a chair because the seat was not properly bolted to the frame. After he reported both the injury and the hazardous safety condition, the Railroad accused him of lying about it and fired him. The  jury found the Railroad violated the FRSA and awarded O’Neal back pay, emotional distress damages, and punitive damages.

Continue Reading FRSA Remedies and Attorney Fees

What Is A “Good Faith” Refusal?

Under subsection (a)(2) of the Federal Rail Safety Act, it is protected activity for an employee “to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety.” Now comes a Circuit Court decision clarifying what qualifies as “a refusal” to violate a FRA safety regulation.

Continue Reading More on FRSA “Good Faith” and “Intentional Retaliation”