In recent Federal Rail Safety Act developments, the 8th Circuit tries its hand at Section 20109 model jury instructions, and the Administrative Review Board underscores some key points of proof.

Jury Instructions

In addition to the battle tested Section 20109 jury instructions in Barati v. Metro North Railroad and Brig v. PATH, the 8th Circuit Court of Appeals now weighs in with the first Model Jury Instructions for Section 20109 whistleblower retaliation cases.  After a Legal Overview section, the Model Instructions address: the elements for subsection (a) and (b) causes of action, for (c)(1) and (c)(2) causes of action, and the “clear and convincing evidence” defense.

Brian Petersen v. Union Pacific Railroad Company

Affirming an ALJ award against the Union Pacific Railroad, the ARB reminds us to keep in mind:

No Proof Retaliatory Motive Is Needed

Union Pacific’s principal legal argument that a complainant must demonstrate animus to prove causation under FRSA is without merit. We have repeatedly held that neither motive nor animus is required to prove causation under FRSA as long as protected activity contributed in any way to the adverse action.

A Chain of Events Alone Is Sufficient to Prove Causation

The ARB has made clear that a “chain of events” can substantiate a finding of contributory factor [citing to Hutton v. Union Pacific R.R. Co.]

Back Pay Awards Are Not Reduced for Unemployment Benefits

The ARB has long held that unemployment compensation benefits received by an employee should not be deducted from back pay awards.  It has likewise been OSHA’s longstanding policy not to deduct unemployment insurance from gross back pay [citing to the OSHA’s 2011 Whistleblower Investigations Manual at page 6-2]

Proof of Illegal Motive Not Necessary for Punitive Damages

FRSA does not require “illegal motive” to sustain a punitive damages award. An award of punitive damages may be warranted where there has been “reckless or callous disregard for the plaintiff’s rights, as well as intentional violations of federal law.” . . . The size of the punitive award is “fundamentally a fact-based determination,” and “we are bound by the ALJ’s factual findings if they are supported by substantial evidence.”

To learn more about the FRSA Section 20109, go to the Summary of the FRSA and the free Rail Whistleblower Library.