Rail workers under management pressure to violate FRA safety regulations, take heart. Two ground breaking federal court decisions uphold your Federal Rail Safety Act right to be free from retaliation when you refuse to violate federal safety regulations.
Gregory Morgan v. Norfolk Southern Railway Co., was brought by a Road Foreman after he was demoted for refusing to fabricate window dressing safety violations. Because Norfolk Southern “desperately wanted to give the appearance that it was improving its safety standards,” it required its Road Foremen to report “a strict quota of safety violations” and “to make violations up in order to do so.” When Road Foreman Greg Morgan refused to fabricate safety violations, the Railroad transferred him to a position in another state with lower rank and pay.
The federal judge rejected Norfolk’s attempt to apply the more restrictive standards of other employment retaliation statutes: “The FRSA contains, on its face, a lighter causation standard than do other employment retaliation statutes,” which “are not applicable to this case.” Instead, the very lenient “contributing factor” standard applies, and the judge found there was sufficient evidence for a jury to conclude “that the demotion was, at least in part, payback for plaintiff’s protected refusal to fabricate.”
Fulk v. Norfolk Southern Railway Co., illustrates the tragic consequences of railroad retaliation. John Fulk worked as a Car Inspector at Norfolk’s Linwood Yard in North Carolina. He inspected freight cars for compliance with Federal Rail Administration regulations, and was required to place “bad order” tags on noncompliant cars so they would be kept out of service until repaired.
Fulk objected to the attitude of Norfolk Southern’s managers toward FRA regulations. They “consistently chose to get trains out on time rather than comply with regulations,” and set a bad order quota “of fifty such orders at any one time at Linwood Yard no matter how many cars were defective or noncompliant.” Employees who continued to find bad orders were “targeted for harassment.”
Fulk refused to follow management’s scheme, and “continued to tag cars that were defective or noncompliant with FRA regulations.” As a result, his “bad order tags were routinely removed before the car had been repaired” and he was “subjected to abusive intimidation and disciplinary threats to his job.” Fulk reported all this to Norfolk Southern management, but Norfolk “never took action to stop such treatment.”
Finally, Norfolk Southern filed false charges against him and scheduled a formal Hearing setting him up for termination. Three days before the Hearing, Fulk drove to work, signed in, returned to the employee parking lot, and shot himself in the head with a pistol. He died from the wound.
Prior to his death, Fulk had drafted letters to the FRA reporting the conduct of Norfolk Southern and to OSHA complaining of the retaliation. But before he sent the letters, “the scheduled Hearing combined with years of harassment” precipitated his emotional breakdown and suicide.
A few days after his death, Fulk’s widow filed the FRSA Complaint with OSHA and submitted the letter to the FRA. The FRA investigated and discovered numerous regulatory violations at the Yard. The employees the FRA interviewed confirmed Fulk had been the target of retaliation, but no one was willing to sign a witness statement for fear of retaliation by Norfolk Southern management.
The Railroad moved to dismiss the case because it was Fulk’s widow, not Fulk himself, who filed the FRSA Complaint with OSHA . In “a question of first impression,” the district judge decided that a FRSA claim “survives the death of a railroad employee” as long as the employee was alive when he gave the third party a directive to file the complaint. That is, “a third party is empowered to commence an action under the FRSA on an employee’s behalf” if the “employee was alive at the time he gave the directive to file the complaint.”
The operation of our nation’s railroads affects the safety of everyone, and rail safety is in the public eye as never before. It is not difficult to imagine the outrage of jurors to the type of railroad conduct exposed in Morgan and Fulk, outrage that will find expression in their verdicts. Thanks to the unlimited emotional distress damages available under the FRSA, the public now has the power to force railroads such as Norfolk Southern to suffer the economic and public shaming consequences of their profoundly unsafe cultures. To learn more about the FRSA, go to the Summary of the FRSA and the free Rail Whistleblower Library.