Here are some recent developments in the world of the Federal Rail Safety Act.

In Bailey v. Consolidated Rail Corp., ALJ Colleen A. Geraghty found that the Railroad retaliated against the employee due to his reporting safety concerns, and ordered various FRSA make whole remedies. Perhaps the most interesting aspect of the Decision is its rejection of the Railroad’s “sole decision maker” defense.

Railroads often will have the manager who filed the disciplinary charge testify at the kangaroo court hearing, and later have a different manager be the “sole decision maker” who decides whether to actually impose discipline. The railroad then argues that because the “sole decision maker” manager had no knowledge of the employee’s FRSA protected activity, there can be no connection between the protected activity and the decision to impose the discipline.

Judge Geraghty rejected that dodge:

Case law states that either an employee with authority to take the adverse action, or an employee “with substantial input” in that decision, must have known of the protected activity. . . . Although the [sole decision maker manager’s] decision occurred following an investigation and hearing, this is insufficient to sever the influence by [the charging manager] because the [charging manager] participated in the investigation and testified against the employee at the hearing. Thus it cannot be said that there was a truly independent investigation apart from [the charging manager’s] influence.

Bailey at pages 25 and 31. At page 25, Judge Geraghty cites both ARB and federal court decisions confirming this principle.

A similar dynamic was in play in Thompson v. Norfolk Southern Railway Co. Thompson was a conductor suspended for supposedly “falsifying an injury.” Chief ALJ Daniel A. Sarno, Jr.’s Decison sets forth how such cases are to be analyzed.

The burden is on the railroad to demonstrate by clear and convincing evidence that it acted in good faith. And to determine whether a railroad actually held a good faith belief the employee falsified his injury, the Judge will closely “examine the procedures by which the railroad investigated and disciplined the employee.” Judge Sarno found there is no good faith if the railroad ignored or discounted evidence supporting the employee. And similarly there is no good faith if the hearing officer did not conduct a truly neutral investigation free from any input by the charging managers.

Thompson also is notable for its holding that when an employee who files a FRSA complaint dies while the claim is still pending, FRSA damages for emotional distress survives the death, but not punitive damages.