As predicted, the maximum amount of punitive damages is becoming routine in Federal Rail Safety Act cases. This past spring a federal jury ordered $1 million in punitive damages in the first FRSA jury trial. Now, an Administrative Law Judge has awarded the $250,000 statutory maximum in punitive damages against a railroad for firing a worker who reported an injury “in an untimely manner.” And the ALJ so ruled even though OSHA had dismissed the complaint after its investigation found no merit.

The facts are all too common. BNSF sheet metal worker Christopher Cain was involved in a motor vehicle accident at work. He duly filed a railroad injury report but did not seek any medical treatment and continued working with no lost time. Three weeks later, his doctor indicated it was probable he suffered some bleeding in his lung due to the work injury incident. When, two months later, Cain informed the Railroad he was taking a medical leave due to a lung condition related to the injury report incident, his supervisors told him it would make his injury “FRA reportable” and “hurt the managers.” He went on medical leave anyway, but after he returned to work his managers assigned him to the worst part of the Yard and then fired him for “failing to report injuries in a timely fashion.”

After an exhaustive analysis of the facts and FRSA law, the ALJ Daniel F. Solomon ruled:

I find that several of BNSF’s management employees conspired to defeat Cain’s right to submit a medical claim and deprive him of his job. I also find that their assignment of Cain to the worst part of the Yard was wanton and willful and an equivalent to an intentional tort. . . .

I also find that public policy and legislative intent for the FRSA assume that disputes as to the nature and extent of injuries are commonplace and should not be used as a pretext to discriminate. Section 20109(a)(4) protects railroad employees from retaliation for notifying or attempting to notify the railroad of a work-related personal injury. That the FRA injury reporting regulations require the railroad to report injuries including the number of lost work days, and may be violated by a railroad that does not accurately report workplace injuries or the number of lost work days, does not impede a railroad employee’s right under 20109(a)(4) to report the injury to the railroad without fear of retaliation.

The ALJ noted that punitive damages are “to punish unlawful conduct and to deter its repetition,” with the amount based on the punitive damages “imposed in other cases for comparable misconduct.” Noting that BNSF management “railroaded” Cain, ALJ Solomon awarded the statutory maximum of $250,000 in punitive damages. To top it off, BNSF now has to pay Cain’s lawyers all of their attorney fees and costs.

So, despite a steady increase in the amount of FRSA punitive damage awards over the past four years, railroads have not changed their retaliatory ways. And until they do, we can all expect to see OSHA, ALJs, and juries awarding the $250,000 statutory maximum as a matter of course. For the complete text of Cain v. BNSF.