An important district court decision spells out how to analyze discipline based on allegedly "false" or "late" injury reports. And also you can add it to the growing list of cases rejecting the hapless "election of remedies" defense still being raised by railroads in Federal Rail Safety Act cases.
Election of Remedies
After Track Department employee Thomas Ray reported a work related injury, the Union Pacific Railroad charged him with the late reporting of a false injury, conducted the usual show trial, and fired him. His union pursued a Public Law Board arbitration under the Railway Labor Act, and almost three years later the arbitrator reinstated Ray with no back pay.
Meanwhile, Ray had filed a FRSA Section 20109 whistleblower protection complaint and opted to go into federal district court. Union Pacific filed a motion for summary judgment, arguing the case should be dismissed because the union’s RLA arbitration constituted an "election of remedies."
U.S. District Judge Robert W. Pratt rejected the Railroad’s "unconvincing" arguments. He endorsed the ARB’s Mercier decision and found it is entitled to Chevron deference. He also endorsed the Reed and Ratledge federal court decisions, ruling that an employee’s "FRSA claims are not barred by the election of remedies provision of the FRSA merely because he elected to pursue an enforcement action under the RLA for rights that substantially arise under the collective bargaining agreement."
False and Late Injury Reports
Judge Pratt’s well reasoned decision also is notable because it spells out how to analyze whether an employee’s injury report is "false" or "dishonest" for FRSA purposes:
even assuming the employee was dishonest with the Railroad on one occasion or another, the relevant inquiry remains whether, at the time he reported his injury, he genuinely believed the injury he was reporting was work-related. . . the focus of the good faith requirement when reporting injuries is on the reporting itself, not on all of an employee’s interactions with his employer. . . . Union Pacific’s arguments that it had "ample basis to discipline" Ray and "acted reasonably in finding Ray guilty of late reporting and dishonesty" misses the mark. This is not a PLB matter but rather an action under the FRSA, which evaluates only whether Ray’s filing of a work-related injury report was a contributing factor in the Railroad’s adverse disciplinary decision. Indeed, even if dishonesty and late reporting comprised 99.9% of the reason Union Pacific discharged Ray, his FRSA actions would still be viable because his injury report could still have been "a contributing factor" in the disciplinary action.
This confirms the "in whole or in part, even to the slightest degree" causation standard of the FELA applies with equal force to the FRSA. And Judge Pratt stressed "contributing causation for purposes of the FRSA analysis is presumed in situations where the employee’s protected activity and the adverse action are inextricably intertwined." And such is the case in false or late injury reporting situations: "if Ray had not reported the alleged work-related injury, Union Pacific would not have undertaken an investigation into either the honesty of Ray’s statement about his injury or the timeliness of his injury report, and he would not have been terminated."
Bottom line? Under the FRSA, there is no such thing as "false" or "late" injury reports. When the railroad’s decision to discipline is set in motion by an employee’s reporting of an injury, FRSA causation is presumed. And managers who fire a worker because his injury report was "false" or "late" can be held personally liable for violating the FRSA. For the full text of Ray v. Union Pacific Railroad Co., click here.