Norfolk Southern Railway is showing all of us how to get hit with big Federal Rail Safety Act punitive damages. Here is OSHA’s explanation as to why it awarded record-breaking punitive damages against Norfolk Southern in two recent FRSA cases.
NS Engineer Kintner was fired after reporting an injury due to a tripping hazard in a locomotive. OSHA concluded:
the evidence in this case indicates that Norfolk Southern orchestrated its investigation into the circumstances surrounding Kintner’s injury to support its pre-determined conclusion that Kintner falsified the injury, tried him in absentia, and terminated him because he reported a work-place injury. Kintner and other employees indicated that they are reluctant to report injuries because they fear that Norfolk Southern will suspend and eventually terminate their employment. Such egregious conduct by NS has created a chiling effect. In fact, NS has been cited by OSHA in several other instances for violating the whistleblower protection provision of FRSA by responding to reports of work place injuries in the same manner that it did here—i.e. by conducting an investigation and disciplinary hearing foreordained to find the employee falsified the injury and terminatino the employee despite evidence that the workplace injury occurred. Norfolk Southern’s continued callous disregard for its employees protected rights under FRSA warrants significant punitive damages.
As a result, OSHA ordered NS to pay $150,000 in punitive damages and $50,000 for emotional distress. For the full text of Kintner v. Norfolk Southern Railway.
Similarly, NS trackman laborer Morris was fired after he reported an injury arising out of an incident that involved his entire gang. OSHA found:
Norfolk Southern terminated Morris because he was the only employee who was injured and initiated a reportable injury filing, thereby marring NS’s self-proclaimed stellar injury and illness rates. . . . Norfolk Southern’s investigation and hearing process appear to have been intentionally orchestrated to support the decision it already had made to terminate Morris. . . . He was treated disparately as compared to other employees involved in the accident, and in fact was the only one terminated. NS directly targeted Morris because of his injury report and humiliated him for doing so. NS wanted to make him an example of what would happen if an employee reports an injury.
Noting NS’s “retaliation exhibited a reckless disregard for the law and total indifference to its employee’s statutorily protected rights” that “has created a chilling effect in the workplace,” OSHA ordered NS to pay $200,000 in punitive damages and $100,000 for emotional distress. For the full text of Morris v. Norfolk Southern Railway.
Thanks to the FRSA, Norfolk Southern’s addiction to retaliation has become a very expensive habit indeed. For more on the FRSA, go the to free Rail Whistleblower Library.