A federal judge has confirmed the principle that “adverse action” prohibited by the Federal Railroad Safety Act is any action that would dissuade a reasonable employee from engaging in FRSA protected activities (such as reporting injuries or safety hazards or following a treating doctor’s orders). It is not limited to the actual imposition of discipline, and merely charging an employee with a rule violation is enough to trigger FRSA protection.

William Conrad v. CSX Transportation, Inc. concerns a conductor who, after reporting safety violations, was charged with violating CSX Safety Rules. Before he was actually subjected to the imposition of discipline, Conrad filed a Section 20109 whistleblower retaliation complaint. CSX argued that merely charging an employee with a disciplinary rule violation is not an “unfavorable personnel action” that can be remedied by the FRSA.

The federal district judge disagreed, and issued a decision consistent with the position of the U.S. DOL’s Administrative Review Board, Vernace v. PATH. Noting that “exemptions from remedial statutes are to be construed narrowly,” District Judge William M. Nickerson found that in passing the FRSA, “Congress meant to cover broad categories of punitive employer conduct.” All a rail worker need show is that the adverse action “might have dissuaded a reasonable employee from” engaging in the protected activity. And given the progressive discipline scheme used by every railroad, even a first level charge with no actual discipline imposed qualifies as adverse:

 A reasonable employee, faced with the threat of such action, may be discouraged from reporting violations of federal safety law or hazardous conditions. A reasonable employee may even feel compelled to act against his interest in bodily safety in order to avoid finding himself on the road to termination.

Based on the implications of successive serious charges under CSX policy, the Court cannot say that a reasonable worker would not be dissuaded from engaging in protected conduct by successive disciplinary charges brought by CSX.

And so railroads cannot escape liability under the FRSA when they point the gun of discipline at a worker without pulling the trigger. The mere act of pointing the gun is enough. Here is the full decision of Conrad v. CSX Transportation, Inc. To learn more about the FRSA, go to the Summary of the FRSA and the free Rail Whistleblower Library.