Train Law Blog

Train Law Blog

The Source for Railroad Injuries & Whistleblower Protection

OSHA Whistleblower Data Snapshot

Posted in Federal Rail Safety Act

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 Of all the cases resolved in 2018, three quarters were dismissed or withdrawn.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.

Further Correcting Kuduk’s Mischief

Posted in Federal Rail Safety Act

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:

Kuduk and its progeny hold that “the contributory factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” But this pronouncement is both conclusory and contrary to the weight of precedent interpreting the “contributing factor” element of the statutory protections of most whistleblower laws.

In footnote 13, the ARB cites decisions from the 3rd, 5th, 7th, and Federal Circuit Courts contradicting Kuduk, and then explains how Kuduk erroneously substitutes Title VII’s “motivating factor” standard for the FRSA’s “contributing factor” standard. Kuduk does so

without properly accounting for the differences between the “motivating factor” causation standard under Title VII and the “contributing factor” standard under FRSA. We have long held that “retaliatory motive” is not required to show causation under the whistleblower statutes, like FRSA, containing the “contributing factor” standard. . . [The FRSA] is designed to address (and remedy) the effect of retaliation against whistleblowers, not the motivation of the employer. Proof of “retaliatory motive” is not necessary to a determination of causation. Although Kuduk acknowledged that the “contributing factor” under FRSA does not require an employee to “demonstrate the employer’s retaliatory motive,” the court failed to explain why, instead, “intentional retaliation” was required or how “intentional retaliation” differs from “retaliatory motive.”

Because the 8th Circuit itself admits the FRSA does not require the employee to “demonstrate the employer’s retaliatory motive,” the phrase “intentional retaliation” simply refers to the fact that one or more of the managers involved in the adverse action must have had some knowledge of the employee’s protected activity. If in fact none of the managers in the disciplinary chain had any actual or constructive notice of the protected activity, then their adverse action cannot be connected in any way to the protected activity. But this has always been the case: the contributing factor standard does require proof that one or more of the adverse acting managers were aware of the protected activity.

But proving mere awareness of the protected activity is far different from proving a person’s internal motive or intent. Under the FRSA, the employee does not have to prove a manager’s internal motive or intent, only that the manager had some actual or constructive notice of the protected activity before initiating the adverse action. Here is the full text of Riley v. Dakota, Minnesota & Eastern Railroad. For more on the proper reading of Kuduk, see When Context Is Everything. For more on the FRSA, go to the free Rail Whistleblower Library.

When Failing to Comply With a Direct Order Is OK

Posted in Federal Rail Safety Act

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.

Inextricably Intertwined

The key was that Klinger’s protected activity was “inextricably intertwined” with the adverse action. The ALJ explained the concept:

When the protected activity itself triggers the adverse action or investigation that leads to it, the protected activity is inextricably intertwined with the adverse action. The ARB has repeatedly found that protected activity and employment actions are inextricably intertwined where the employment action cannot be explained without discussing the protected activity.

The ALJ pointed out that Klinger’s discipline could not be explained or discussed without mentioning his protected activity of reporting a work-related injury. Nevertheless, the Railroad claimed Klinger’s refusal to follow the direct order was an “intervening event.” But the ALJ found that was not good enough, because that so-called intervening event “resulted directly from the reporting of the injury.”

No Clear and Convincing Evidence Defense

The ALJ explained that for a railroad to avoid liability:

It is not enough to show that the employee’s conduct constituted a legitimate independent reason justifying the adverse personnel action, or that the railroad could have taken the personnel action in the absence of the protected activity. Instead, the employer must show that it would have taken the same adverse action absent the protected activity.

And it was impossible for BNSF to prove it would have taken the same action absent Klinger’s report of a work-related injury because, as the ALJ pointed out, “Workers who were off duty for non-work-related injury reasons were treated differently and are not monitored in the same manner as those who report work-related injuries.” Indeed, the ALJ found that “BNSF took the action against Klinger precisely because he reported the work related injury.”

Klinger did not ask for any economic or emotional distress damages, but did ask for punitive damages to be awarded. The ALJ found BNSF’s “conduct to be outrageous, reprehensible, and untruthful. It has a policy that treats employees injured on the job differently than employees who are off work for non-work related injuries.” The ALJ accordingly awarded $100,000 in punitive damages in order to deter BNSF from such conduct in the future.

Here is the full opinion in Klinger v. BNSF Railway. For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.

FRSA Remedies and Attorney Fees

Posted in Federal Rail Safety Act

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.

After the trial O’Neal asked the Judge to also reinstate him, expunge the discipline from his records, add prejudgment interest to his back pay, and award attorney fees. The Judge did so, clarifying those important make whole remedies.


The federal court confirmed that reinstatement with the same seniority status and benefits an employee would have had but for discrimination is the default remedy for wrongfully fired railroad whistleblowers. The only exception is situations where “discord and antagonism between the parties would render reinstatement ineffective as a make-whole remedy.” In those cases, an award of front pay is the appropriate remedy.


The federal court ruled:

the plain language of the FRSA statute makes expungement available when necessary to make the employee whole. . . references to suspension and termination in the personnel files could potentially be harmful to the employee in the future, and they are the direct result of the Railroad’s violation of the FRSA. Expungement is therefore necessary to make the employee whole. . . . Thus the employee is entitled to the expungement of the charge letters, the termination letters, and the letters to the union upholding the termination, as well as all other references to his termination in the Railroad’s employment files.

Prejudgment Interest on Back Pay

The federal court also confirmed “the FRSA mandates that successful employee plaintiffs receive any back pay with interest.” However, the FRSA does not require prejudgment interest on “damages for emotional pain, loss of reputation, personal humiliation, and other nonpecuniary losses.” Here is the full remedies opinion in O’Neal v. Norfolk Southern.

Attorney Fees and Costs

The federal court confirmed that successful FRSA plaintiffs also are entitled “to recover litigation costs, expert witness fees, and reasonable attorney fees.” But how does a court decide what are reasonable attorney fees? The federal court explained:

The starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This number is called the “lodestar,” and there is a strong presumption that the lodestar is the reasonable sum the attorneys deserve. The district court should exclude hours that were not reasonably expended, such as work that was excessive, redundant, or otherwise unnecessary. Downward adjustment of the lodestar is merited only if the prevailing party was partially successful in its efforts, a determination the district court makes on a case-by-case basis. It is the burden of the party seeking an award of fees to submit evidence to support the hours and rate claimed.

A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of  comparable skills, experience, and reputation. Evidence of that rate requires not only the affidavit of the attorney performing the work but also additional affidavits from local attorneys confirming the prevailing rate.

But what of cases where both FRSA and FELA claims are tried together? Hours spent solely on the FELA claim must be excluded, but the “hours spent on legal work that furthers both the FRSA fee-shifting and the FELA non-fee-shifting claims may be included in the lodestar calculation because they would have been expended even if the plaintiff had not included non-fee-shifting claims in his complaint.”

Finally, it is important to remember when the lodestar rate can be increased. The federal judge noted “where the attorney fee is contingent on success, the hourly rate should ordinarily be raised to compensate the attorney for the risk of nonrecovery.” And when a contingency fee based attorney does achieve a successful result, “an upward adjustment of the lodestar is warranted.” In the O’Neal case, these factors resulted in an enhancement of 1.33 times the lodestar rate. Here is the full attorney fees opinion in O’Neal v. Norfolk Southern.

For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.

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

Posted in Federal Rail Safety Act

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.

In Rookaird v. BNSF Railway Company, the 9th Circuit Court of Appeals explains how an employee’s refusal of a direct order or an implicit order is protected by the FRSA:

an employee’s refusal need not be precipitated by an explicit directive in order for the employee’s refusal to be FRSA protected activity. The word “refuse” in the FRSA is a clear reference to the employees conduct, not the employer’s. And while certainly an explicit order can be “refused,” statements or conduct of the employer can amount to an implicit order, and an employee can refuse to follow that implicit order just as much as an explicit one.

Moreover, the Circuit Court rejected BNSF’s argument that such refusals only apply to actual violations of FRA regulations:

BNSF effectively asks us to add the word “actually” before “violate” in paragraph (a)(2). We reject this narrow interpretation of (a)(2) as incorrectly narrowing its intended scope. To constructively add the word “actually” into paragraph (a)(2) would undercut the good faith requirement that applies throughout subsection (a). Congress’s use of the phrase “in good faith” in subsection (a) means that it intended for paragraph (a)(2) to extend to an employee’s good faith refusal to undertake conduct the employee believed to be violative of a law, rule, or regulation, even if the conduct at issue would not constitute an actual violation of a law, rule, or regulation if performed or continued.

And such an interpretation is consistent with the good faith standard applicable to reporting a work related injury. The Circuit Court noted that federal courts interpreting what injury reports are protected by the FRSA

have refused to construe paragraph (a)(4) to require that the reported injury actually be work-related. Rather, those courts require only that the employee have had, at the time of notification, a good faith belief that the injury was work-related: the employee must show that “he subjectively believed his reported injury was work-related,” and that “his belief was objectively reasonable.” If the employee turns out to have been mistaken (that is, the injury was not actually work-related), the railroad can still be liable under paragraph (a)(4), provided that the employee’s notification was done in good faith.

Further Weakening Kuduk’s Mischief

And the 9th Circuit’s decision in Rookaird further weakens the 8th Circuit’s notorious insertion of the mischievous phrase “intentional retaliation” in Kuduk v BNSF. The fact is, employees do not have to prove the railroad had an intentional motive to retaliate. Even the 8th Circuit in Kuduk recognizes that fact, as does the 5th Circuit, 7th Circuit, and 9th Circuit: all hold that an employee’s prima facie showing “does not require that the employee conclusively demonstrate the employer’s retaliatory motive.” All an employee must prove is that one or more of the managers involved in the chain of discipline or adverse action against him had some knowledge of his protected activity.

For more on the proper reading of Kuduk, go to When Context Is Everything and A Distinction Without A Difference. For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.

Recent Seaman Protection Act Whistleblower Developments

Posted in Seaman's Protection Act

A $1.15 Million SPA Whistleblower Settlement

It took four long years, but a full measure of justice has come to my client Captain John Loftus. John was the Captain of a 850 foot long container ship who took safety seriously. After his employer ignored his internal reports of unsafe conditions, John went outside to the American Bureau of Shipping and Coast Guard, who forced Horizon Lines to correct the conditions. Horizon then found a pretext to fire John from his Master position. Both the Administrative Law trial Judge and the Administrative Review Board appeals judges ruled in his favor, ordering over $1.15 million in back pay, emotional distress, punitive damages, attorney’s fees and costs. John refused to compromise, ultimately forcing the Company to pay the full $1.15 million, with no confidentiality. So hats off  to John for insisting on clearing his reputation while being made whole.

ARB Confirms SPA Covers Internal Safety Complaints

The Seaman’s Protection Act prohibits retaliation against any seaman who reports a work related injury or reports to the U.S. Coast Guard or American Bureau of Shipping “that a violation of a maritime safety law or regulation has occurred.”

It also protects merchant mariners who “testified in a proceeding brought to enforce a maritime safety law or regulation.” But how broad is the scope of such a “proceeding”? The Administrative Review Board confirms it is broad enough to include purely internal safety complaints:

The Board has interpreted “proceedings” under other whistleblower statutes we administer as covering safety complaints to the employer. . . .protected activity includes “bringing a proceeding” or having “testified in such a proceeding”, which the Board has interpreted to cover internal complaints to an employer.

Meeks v. Genesis Marine, LLC. Thus, to be protected from retaliation, seamen need not necessarily escalate their safety complaints to outside agencies. And OSHA’s Seaman Protection Act Fact Sheet  now confirms it is protected activity under the SPA to make “an internal complaint, such as to a master, captain, or other supervisor, relating to a violation of maritime safety law or regulation.”

For more on the standards applicable to whistleblower laws such as the Seaman Protection Act, go to the free Rail Whistleblower Library.

Some Recent FRSA Developments

Posted in Federal Rail Safety Act

What is Adverse Action?

The question arises, in order to qualify as an “adverse action” under the Federal Rail Safety Act, does a railroad’s investigation into an employee’s actions have to result in actual discipline? What if the charge is eventually dropped? No harm no foul? A recent district court decision clarifies the matter:

The Administrative Review Board has repeatedly held that charging an employee with a policy violation, instituting an investigation, or simply threatening adverse action against an employee can constitute adverse action, even when the employee is not ultimately discharged or suspended and suffers no economic harm.

Thus “adverse actions” under the FRSA include not just “discriminatory actions that affect the terms and conditions of employment,” but also any action that would dissuade an objectively reasonable employee from exercising her rights under the law. And the United States Supreme Court stresses that “context matters” when making that assessment. The same action might therefore constitute a minor annoyance in one context and an adverse action in another.

Though the materiality requirement may not be met “any time” an investigation is instituted, the requirement may be satisfied where an investigation–along with its implicit threat of discipline–would dissuade a reasonable employee from exercising her rights under the FRSA.

Renzi v. Union Pacific Railroad Company.

So, when it comes to adverse action, context matters, and the focus must be on whether a reasonable worker would be discouraged from reporting an injury or unsafe condition if he knew that doing so would subject him to an investigation that has the potential to end in discipline. Here is the district court’s full decision in Renzi v. Union Pacific Railroad Company.

Is Reporting an Injury Also Reporting a Hazardous Safety Condition?

The short answer is, yes it can be. In Wooten v. BNSF Railway Company, a conductor reported that his wrist was injured due to a door latch that was not working properly. He filed a FRSA Complaint citing the protected activity of reporting of a work injury but not specifically claiming he also reported a hazardous safety condition. When the employee filed a FRSA complaint in federal court citing both protected activities, the Railroad argued he was limited to the specific allegations in his OSHA complaint.

The district court disagreed, in a decision confirming that when a worker’s injury report states the injury resulted from some hazardous safety condition, then the employee’s “claim that he engaged in protected activity by reporting a hazardous safety condition is reasonably related to his OSHA complaint.” Here is the district court’s full decision in Wooten v. BNSF Railway Company.

So although it is better form to specifically include any applicable protected activities in the OSHA complaint, it is sufficient if the worker’s report of the injury also refers to a particular hazardous safety condition that caused the injury. For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.

ARB Affirms $1 Million Seaman’s Protection Case

Posted in Seaman's Protection Act

While railroaders and truckers generate the most cases, seamen and merchant mariners also are protected from retaliation when they blow the whistle on safety issues. The Seaman’s Protection Act prohibits retaliation against any seaman who reports a work related injury or who reports to the U.S. Coast Guard or American Bureau of Shipping “that a violation of a maritime safety law or regulation has occurred.” In 2013 Captain John Loftus brought a landmark SPA case against Horizon Lines and Matson Alaska when they fired him after he reported numerous safety violations to the USCG and ABS.

After a three day trial in 2015, Administrative Law Judge Jonathan A. Calianos awarded Loftus nearly one million dollars in damages ($655,000 in back pay, $225,000 in punitive damages, plus emotional distress, attorney fees, and compounding interest). Here is a full analysis of the ALJ’s Decision. Horizon and Matson appealed, and now the Administrative Review Board has soundly rejected all of their arguments.

The ARB’s Decision is notable because it affirms Horizon constructively discharged Loftus when it demoted him from Captain to Chief Mate, forcing him to resign rather than sail as Chief Mate under “intolerable working conditions.” The ARB also affirmed the $225,000 in punitive damages, since “a large punitive damage award was necessary to deter and punish Horizon given its longstanding inaction addressing Loftus’s safety concerns, the chilling effect Horizon’s retaliatory actions likely had on other marine employees, and the harm it visited upon Loftus personally.”

The take away? All seamen and merchant mariners should know there is a federal statute that encourages them to report safety violations to the USCG or ABS, and that protects them from retaliation when they do. For the sake of shipping safety, let us hope this landmark case liberates all seamen to freely exercise their SPA right to report safety hazards, and deters managers from retaliating when they do. Here is the ARB’s full decision in Loftus v. Horizon Lines, Inc. and Matson Alaska Inc. Here is the Connecticut Law Tribune’s article on the Decision. For more on the standards applicable to whistleblower laws such as the SPA, go to the free Rail Whistleblower Library.

Second Circuit Sidesteps Subsection (c)(1) Issues

Posted in Federal Rail Safety Act

Federal Rail Safety Act subsection (c)(1) prohibits railroads from denying, delaying, or interfering with the medical treatment of employees “injured during the course of employment.” In a fact driven decision, the Second Circuit Court of Appeals sidesteps deciding the temporal scope of that protection (just first aid or entire course of treatment?) and its interpretative standard (can a railroad’s denial of a medical claim payment constitute interference?). Instead, the Court merely commented: “We suggest that the Administrative Review Board might reexamine and further explicate its reasoning regarding Section 20109(c)’s interpretation in the future.” Metro North Commuter Railroad Company v. United States Department of Labor (previously captioned as Anthony Santiago v. Metro North Railroad).

In the Metro North case, the Railroad’s Medical Department contractor refused to approve payment for a treatment procedure based on its view that Santiago’s occupational injury had resolved. Given a lack of evidence showing the Railroad’s direct involvement in that determination, the Circuit Court found there was not enough proof the Railroad improperly influenced the contractor’s action. So the Circuit’s decision is limited to that narrow set of facts, and obviously does not apply to actions taken directly by a railroad’s own supervisors or by its own medical department.

The take away? The resolution of subsection (c)(1)’s scope and standard must wait another day. For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.

Can OSHA Order the Training of Managers?

Posted in Federal Rail Safety Act

The FRSA is a “make whole remedy” statute, so the question arises: can OSHA force a recalcitrant railroad to train its managers so they comply with the statute going forward? The short answer is: yes, when the facts call for it. The long answer is found in Administrative Law Judge Timothy J. McGrath’s decision in Giuliano v. CSX Transportation, Inc.

OSHA found CSX violated JJ Giuliano’s FRSA right to report safety hazards, and in addition to awarding punitive damages ordered that “all managers at CSX’s Selkirk Locomotive Diesel Shop shall receive training provided by OSHA relative to the FRSA rights afforded employees.” CSX paid the punitive damages, but objected to the training of its managers (go figure).

Judge McGrath first noted OSHA’s FRSA regulations confirm that the posting of a Notice regarding the whistleblower complaint “can be important to remedying the reputational harm an employee has suffered as a result of retaliation.” And as for training managers:

an order to provide training to managers regarding the rights protected by the FRSA can assist in making the employee whole by ensuring that the circumstances that led to retaliation do not persist, thus remedying the employee’s fear of future retaliation for having engaged in the protected activity.

See OSHA’s Final Rule Summary at page 69126. Noting that the FRSA statutory language broadly mandates all remedies to make an employee whole, Judge McGrath concluded:

I find an order of affirmative action to abate a violation (such as ordering the training of managers) may be appropriate under the FRSA when it functions to make the employee whole.

The key factor is whether the employee remains under the supervision of the managers who retaliated against him. If so, posting a Notice restoring his reputation in the workplace is appropriate, as is an order forcing the training of those managers to ensure the retaliation will not continue in the future.

Here is the full text of Giuliano v. CSX Transportation, Inc. For more information on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.