The old English Common Law had a phrase for the argument: “de minimis non curat lex” (“the law does not concern itself with trifles”). But unfortunately for American railroads, the U.S. Department of Labor’s Administrative Review Board has emphatically rejected the application of that argument to violations of the Federal Rail Safety Act.
The facts of Laura Vernace v. PATH Rail demonstrate the absurd lengths to which railroads will go in their attempts to rationalize retaliation against injured workers. Laura was a Signal Tester for PATH working in the Relay Room below the World Trade Center when she had to sit down on a chair to fill out FRA forms (full disclosure: I am the attorney who represented Laura). She chose a normal looking office chair on rollers. However, after she sat down, the backrest unexpectedly collapsed and the chair shot out from under her, causing her to fall backwards and strike her head on the concrete floor.
Laura duly reported the injury, and three weeks later received a charge letter accusing her of violating safety rules because she “failed to exercise constant care and utilize safe work practices to prevent injury to yourself when you did not inspect a chair.” She was ordered to attend an investigative hearing, but the hearing was not held and then one year later PATH dropped the disciplinary charges.
Laura filed a FRSA Complaint alleging the mere filing of a charge letter, without more, constitutes an adverse action. OSHA agreed, and ordered punitive damages. PATH objected, and a de novo trial was held before ALJ Judge Theresa C. Timlin, who issued a detailed Decision explaining why the Railroad’s “intimidating” and “threatening” conduct violated the FRSA and warranted punitive damages. PATH appealed to the ARB, which resoundingly affirmed Judge Timlin:
Congress re-emphasized the broad reach of FRSA when it expressly added “threatening discipline” as prohibited discrimination in section 20109(c) of the FRSA whistleblower statute. . . . 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.
PATH unpersuasively challenges the ALJ’s factual finding of causation by arguing that it initiated a disciplinary investigation only because of the allegedly unsafe use of a chair (sitting on it) and not because Vernace reported an injury. As the ALJ explained, this clever distinction ignores the broad and plain language of the statute and regulations. It also ignores FRSA’s extensive legislative history citing the rampant practices of abuse and intimidation inflicted on railroad workers who reported or even attempted to report work injuries.
The ARB was just being nice when it used the phrase “clever distinction.” “Laughably ridiculous” is more like it. But what really jumps out of the ARB’s Decision is its directive that the FRSA must be interpreted and applied in order to put a stop to “the rampant practices of abuse and intimidation inflicted on railroad workers who report or even attempt to report work injuries.” Roger that.
The take away? There is no such thing as a “de minimus” violation of the FRSA. Even if a railroad rescinds a charge letter and does not go forward with a hearing or impose any discipline, that does not cure its violation of the FRSA for filing the letter in the first place. Here is the full text of Laura Vernace v. PATH Rail. For more on the FRSA, go to the free Rail Whistleblower Library.