Question: What is the surest way for a railroad to get hit with punitive damages?
Answer: Base a disciplinary charge on an employee’s FRSA complaint.
Railroads that have tried this bone headed move are now 0-3, and OSHA has slammed them with punitive damages every time.
The latest example comes from Pan Am Railways. Subsection (a)(3) of the Federal Rail Safety Act declares that when a worker files a FRSA Complaint with OSHA (or cooperates with OSHA’s investigation into a co-worker’s FRSA complaint), it is a protected activity that cannot be used in whole or in part for disciplinary purposes. After reporting an ankle injury while stepping down from a train in a Yard, Jason Raye was charged with violating a safety rule. The usual kangaroo hearing was held during which he described how the ankle injury occurred. He was found guilty and disciplined.
Raye then filed a FRSA complaint with OSHA’s Whistleblower Office in which the description of how his ankle was hurt differed somewhat from his testimony at the Company trial. Some manager then got the bright idea of charging him again, this time for lying to a government agency, a firing offense. Another hearing was held, after which the Company dropped the charge.
But the damage was done, and Raye amended his FRSA Complaint to include a subsection (a)(3) violation. OSHA agreed, and ordered Pan Am Railways pay $50,000 in punitive damages and emotional distress. OSHA’s explanation for why punitive damages are mandated for subsection (a)(3) violations speaks for itself:
The acts of accusing an employee of lying to OSHA after he filed an FRSA complaint, charging him with violating safety rules that if he was found guilty of could result in his termination, and conducting trial proceedings, have a chilling effect on employees and would to dissuade others from asserting their rights under FRSA. Even if the charge is later dropped, as it was after the hearing in this case, that does not remedy this chilling effect, as the act of bringing the charge against an employee affects all of the Railroad’s employees’ willingness and ability to exercise their most basic rights under FRSA.
Once a FRSA allegation has been made to OSHA, it is OSHA’s responsibility, not the Railroad’s, to establish the truth of assertions made by both parties. Under these circumstances the Railroad’s use of an internal, management run disciplinary hearing to establish facts that are the subject of a federal OSHA investigation is overreaching at best and interfering with a federal investigation at worst. Regardless of the Railroad’s intent, such a heavy handed approach would clearly chill other employees from filing similar claims.
The bottom line for railroad managers everywhere? Don’t even think about using a FRSA complaint for disciplinary purposes, unless you enjoy the prospect of paying punitive damages out of your own pocket. For the full text of OSHA’s Merit Finding in Raye v. Pan Am Railways, Inc., click here. The other two subsection (a)(3) cases are Blocker v. Metro North Railroad, and Young v CSX Transportation.