Filing a Federal Rail Safety Act whistleblower retaliation complaint with OSHA within 180 days of a railroad’s adverse action is a threshold issue that can derail the best of cases. So when does that 180 day window open?
The United States Supreme Court tells us:
a limitations period commences when the plaintiff has a “complete and present cause of action.” A cause of action does not become complete and present for limitations purposes until the plaintiff can file suit and obtain relief.
Green v. Brennan (2016).  OK, but that still begs the question, what exactly is the date a railroad worker “can file suit and obtain relief” under the FRSA? Especially given the extended disciplinary process on railroads.
The limitations period begins to run from the time that the worker knows or reasonably should know that the challenged act has occurred. Thus, a railroad violates the FRSA on the date that it communicates to the employee its intent to take an adverse employment action, rather than the date on which the employee experiences the adverse consequences of the railroad’s action.
In FRSA whistleblower cases, the statute of limitation runs from the date an employee receives “final, definitive, and unequivocal notice” of an adverse employment decision. “Final” and “definitive” notice is a communication that is decisive or conclusive, leaving no further chance for action, discussion, or change. “Unequivocal” notice means a communication that is free of ambiguity or future possibilities.
Dugger involved a manager who received a termination letter explicitly disqualifying him from returning to work in any agreement craft. His attempt a month later to exercise his rights as a locomotive engineer was denied. When he filed a FRSA complaint within 180 days of that denial but more than 180 days from the termination letter, his complaint was dismissed as untimely.
The ARB rejected Dugger’s argument that because he did not have any damages until his bid to return as engineer was denied, the statute did not begin to run until then:
Given the public policy of the whistleblower laws, the issue of whether a complainant has sustained damages has never been a prerequisite to a finding of retaliation: the absence of a tangible injury goes only to remedy, not to whether the employer committed a violation of the law.
OK, so how does that play out in context of railroad whistleblower retaliation? Certainly a Notice imposing discipline after a trial is a concrete adverse action, as is the signing of a waiver to avoid more severe discipline.
However, what about the charge letter ordering the employee to attend the hearing? Or the hearing itself? Arguably they are not a “final” or “conclusive” adverse employment action, as  the pending charges still can be withdrawn or not proven. But best to avoid getting sidetracked into that argument. File the complaint with OSHA within 180 days of the initial charge letter, and amend the complaint as needed to incorporate any subsequent disciplinary actions.
So the take away is, don’t let the 180 day window slam shut on your rights. File your FRSA whistleblower retaliation complaint within 180 days of the railroad’s initial indication it intends to subject you to the disciplinary process. And if necessary, amend that complaint to include any post-hearing formal discipline.
Here is the complete text of Dugger v. Union Pacific Railroad Company. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.