In 2007, Congress passed a law designed to change the profoundly unsafe workplace culture on our nation’s railroads: Section 20109 of the Federal Rail Safety Act. Eight years later, the concerted action of OSHA, judges, and juries have forced the railroads to move beyond denial and anger to a grudging acceptance of the fact the FRSA is here to stay. And now, in a sure sign the FRSA has come of age, a railroad has agreed to settle a FRSA case for $699,000 with no confidentiality.
It is fitting this historic settlement comes in the Araujo v. New Jersey Transit Rail case. Tony Araujo was one of the first to use the FRSA to fight back against the retaliatory abuse of rail management. The Circuit Court opinion in his case will remain a landmark of railroad whistleblower retaliation law. And now his settlement sets an important precedent about the value of FRSA cases.
Tony has no physical injuries. He has been working full time for the past six years with the rest of his career ahead of him. He lost $60,000 in wages from his disciplinary suspension, but his case demonstrates that the value of a FRSA case is not driven by lost wages. Rather, a FRSA settlement must reflect the railroad’s total exposure to any and all economic losses, unlimited emotional distress, punitive damages, and attorney’s fees. Tony was adamant his bottom line was $699,000 with no confidentiality. Confronted with a jury trial, the Railroad made a rational business decision to limit its exposure and pay Tony’s demand with no confidentiality clause.
No confidentiality was a deal breaker for Tony. Confidentiality clauses freeze in place the chilling effect of retaliation. After a seven year legal battle, Tony refused to let his case be swept under that rug. Now Tony is free to talk to anyone anytime about anything and everything that happened to him. And that includes the Press, so the word will get out and encourage other rail workers to stand up for their rights.
It is one thing for a railroad’s legal advisors to engineer a settlement in order to avoid paying out even more money at trial; it is quite another for every level of rail management to internalize the cultural changes that will put a stop to FRSA lawsuits. That will happen only when railroads put the final missing piece in place: namely, holding individual managers personally accountable for conduct that violates the FRSA. If managers realize they will be fired or have to pay FRSA damages out of their own pockets, the culture will change overnight.
The NJT manager who decided to file the disciplinary charges against Tony is General Superintendent Joseph Meade. OSHA found his conduct violated the FRSA, and the Federal Railroad Administration also fined New Jersey Transit for violating regulations in connection with Tony’s case. Now the Railroad is paying $699,000 to avoid paying out even more. But instead of losing his job, Superintendent Meade is still working for the Railroad and presumably still looking to move up the ranks of management. So, same old same old.
Only when managers see FRSA violations derailing careers will the retaliation stop. Until then, the lawsuits will keep coming.
Eight years ago, Section 20109 of the FRSA was a formless law with many unanswered questions. Thanks to Tony Araujo’s courageous trail blazing, the FRSA now is a well-trodden path with clear direction signs. It has been an honor representing Tony all along the way, and heartening to see his case settled to his satisfaction. For more information on the Federal Rail Safety Act, go to the free Rail Whistleblower Library.