The boundaries of Federal Rail Safety Act adverse action keep expanding. In Fricka v. National Railroad Passenger Corporation, the Administrative Review Board confirms that FRSA adverse action goes far beyond the limits set by Title VII and Burlington Northern v. White. For example, the following actions are adverse under the FRSA:
- merely threatening discipline against an employee who engages in FRSA protected activity;
- not paying an employee’s medical bills after misclassifying or reclassifying a work related injury as non-work related: “We conclude as a matter of law that Amtrak’s reclassification of Fricka’s injury as non-work related was unfavorable and more than trivial because it led to Amtrak not paying Fricka’s medical bills.”
- a drop in an employee’s performance rating, even if it does not reduce the employee’s pay or salary;
- any other unfavorable employment action that is more than trivial, either as a single event or in combination with other deliberate employer actions.
Fricka should be read in conjunction with the ARB’s decisions in Vernace v. PATH (merely threatening discipline, without more, is adverse action) and Santiago v. Metro North Railroad (not paying medical bills after misclassifying a work related injury as non-work related is adverse action).
So railroads beware: it now is clear that any event or combination of actions that is more than trivial can result in FRSA liability. Here is the full text of Fricka v. National Railroad Passenger Corporation. For more on Section 20109 of the FRSA, go to the Rail Whistleblower Library.