Griebel v. Union Pacific Railroad is yet another example of rail management’s attempt to circumvent the Federal Rail Safety Act  through discipline for “false and misleading” injury reports. After Griebel reported a work-related injury, the Railroad fired him for a “failure to honestly and timely make a report of injury.” A Public Law Board eventually returned him to work, but without any back wages. Meanwhile, Griebel had filed a FRSA complaint, and after a full trial, Administrative Law Judge John P. Sellers, III issued a detailed Decision explaining how the Union Pacific’s conduct violates the FRSA and requiring the Railroad to pay back wages along with punitive damages and emotional distress damages.

Judge Sellers gives a good summary of the types of evidence an employee can use to prove his FRSA complaint:

Direct or “smoking gun” evidence that “conclusively links the protected activity and the adverse action and does not rely on inference”

Circumstantial evidence showing that the railroad’s “proffered reason was not the true reason, but instead a pretext”; such circumstantial evidence may include:

1) timing of the unfavorable personnel action in relation to the protected activity
2) disparate treatment of the whistleblower employee
3) deviation from routing procedures
4) attitude of supervisors towards the whistleblower or the protected activity in general
5) the employee’s work performance rating before and after engaging in the protected activity

But under the FRSA, an employee also can prevail even without showing the railroad’s reason was a pretext: that is, an employee “can alternatively prevail by showing that the railroad’s reason, while true, is only one of the reasons for its conduct and that another reason was the employee’s protected activity.” And whenever a railroad disciplines an employee for reporting an injury in a false, misleading, or untimely manner, “it cannot reasonably be argued that the employee’s filing of the injury report was not one of the reasons” leading to the termination since “it is clear that if the employee had chosen not to file an injury report, he would never have been terminated.”

Thus, in a false and misleading injury report case, a heavy burden falls on the railroad “to prove by clear and convincing evidence that it would have taken the same adverse action” if the employee had not reported the injury. “Clear and convincing evidence” means hard evidence, not suspicion or conjecture or disputed testimony. And the Union Pacific Railroad failed to carry that heavy burden. In the words of Judge Sellers “I find that the evidence demonstrates Griebel’s protected activity was the true reason for his termination and that he would not have been terminated had he not filed a report of injury.”

Finally, Griebel offers a helpful summary of the types of evidence supporting an award for emotional distress. Judge Sellers correctly notes that “no medical or psychological treatment” is necessary to support an award for emotional distress, and that an employee’s “credible testimony alone is sufficient to establish emotional distress.” Examples of evidence establishing emotional distress include testimony confirming “sleeplessness, anxiety, extreme stress, depression, marital strain, loss of self-esteem, excessive fatigue, or a nervous breakdown.” Also testimony noting the physical manifestations of severe emotional harm is sufficient, such as “ulcers, gastrointestinal disorders, headaches, or panic attacks.” But even in the absence of such testimony, Judge Sellers found that an award of $5,000 in “nominal emotional distress damages” was appropriate. For the full text of Griebel v. Union Pacific RailroadFor more on the FRSA, go to the free Rail Whistleblower Library.