Two recent district court decisions in the 2nd Circuit discuss what constitutes a “hazardous safety condition” under Section 20109(b)(1)(A) of the Federal Rail Safety Act, Ziparo v. CSX Transp. Inc. and Caria v. Metro North Commuter RR.
By now it is fairly well settled that an employee must have both a subjective and objective basis to believe a condition constitutes a hazard: an employee “must show not only that he believed that the conduct constituted a violation, but also that a reasonable person in his position would have believed that the conduct constituted a violation.” The objective reasonableness must be “based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.”
Ziparo notes that actionable hazardous safety conditions “have generally been found to be physical conditions that are within the control of the rail carrier employer” and that “circumstances outside of the carrier’s control and non-work related conditions are not included.” This can be problematic when the hazard arises out of the employee’s own subjective reaction to conduct that is otherwise not safety-related. An important exception is an employee’s reaction to credible threats of physical violence by a co-worker. But as the Caria case illustrates, even then there still must be both a subjective and objective basis for the employee to believe he was reporting a safety condition at the time he made the report.