When a BNSF employee reports an on-the-job injury, the Railroad orders the employee to disclose medical information to a medical case manager. But when an employee reports a non-work related injury, the Railroad leaves them alone. BNSF employee Travis Klinger reported a work injury and was ordered to contact such a medical manager. When he declined to do so, he was suspended for “failure to comply with a direct order.” The Administrative Law Judge reversed that discipline and ordered BNSF to pay $100,000 in punitive damages. Klinger v. BNSF Railway.
The key was that Klinger’s protected activity was “inextricably intertwined” with the adverse action. The ALJ explained the concept:
When the protected activity itself triggers the adverse action or investigation that leads to it, the protected activity is inextricably intertwined with the adverse action. The ARB has repeatedly found that protected activity and employment actions are inextricably intertwined where the employment action cannot be explained without discussing the protected activity.
The ALJ pointed out that Klinger’s discipline could not be explained or discussed without mentioning his protected activity of reporting a work-related injury. Nevertheless, the Railroad claimed Klinger’s refusal to follow the direct order was an “intervening event.” But the ALJ found that was not good enough, because that so-called intervening event “resulted directly from the reporting of the injury.”
No Clear and Convincing Evidence Defense
The ALJ explained that for a railroad to avoid liability:
It is not enough to show that the employee’s conduct constituted a legitimate independent reason justifying the adverse personnel action, or that the railroad could have taken the personnel action in the absence of the protected activity. Instead, the employer must show that it would have taken the same adverse action absent the protected activity.
And it was impossible for BNSF to prove it would have taken the same action absent Klinger’s report of a work-related injury because, as the ALJ pointed out, “Workers who were off duty for non-work-related injury reasons were treated differently and are not monitored in the same manner as those who report work-related injuries.” Indeed, the ALJ found that “BNSF took the action against Klinger precisely because he reported the work related injury.”
Klinger did not ask for any economic or emotional distress damages, but did ask for punitive damages to be awarded. The ALJ found BNSF’s “conduct to be outrageous, reprehensible, and untruthful. It has a policy that treats employees injured on the job differently than employees who are off work for non-work related injuries.” The ALJ accordingly awarded $100,000 in punitive damages in order to deter BNSF from such conduct in the future.
Here is the full opinion in Klinger v. BNSF Railway. For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.