The 8th Circuit Court of Appeals confirms that a railroad can violate the FRSA even if it honestly believes an employee violated a rule. In Blackorby II, the employee was disciplined for violating BNSF’s rule requiring the “immediate” reporting of work-related injuries. But reporting a work-related injury is protected activity under FRSA Section 20109, and a railroad violates Section 20109 if an employee’s untimely reporting contributed “in whole or in part” to the disciplinary action:

a railroad employer can, in fact, be held liable under the FRSA if it disciplines an employee based on its honestly held belief that the employee engaged in misconduct or committed a rules violation. Liability will still exist notwithstanding such a belief if the railroad’s retaliatory motive also played a contributing role in the decision and if the railroad fails to carry the burden of proving by clear and convincing evidence that it would have taken the same action in the absence of the protected report.

The Circuit Court went on the underscore there is no inconsistency between a railroad being motivated in part by an honestly held belief the employee violated a rule and in part by a motive to retaliate against the employee for engaging in a FRSA protected activity.

The practical effect of this is to negate a railroad’s ability to discipline an employee for the “late” or “untimely” reporting of injuries. And in fact other federal courts have voided “late reporting” discipline based on a railroad’s rule requiring the “prompt” or “immediate” or “before end of shift” reporting of injuries. This is because the charge that an employee’s injury report was “late” is, while true, inextricably intertwined with the protected act of reporting the injury. In other words, the late reporting discipline cannot be explained without discussing the employee’s protected activity of reporting the injury. See, e.g., Smith-Bunge v. Wisconsin Central, Ltd., and Williams v. Illinois Central RR.

Here is the full Blackorby II decision. For more on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

Railroad defense lawyers love to file summary judgment motions because it delays the trial while padding their hourly bills.  But the Federal Rail Safety Act now allows employees to turn such motions into a sword that guts the railroad’s defense.

The facts in Smith-Bunge v. Wisconsin Central, Ltd  follow a familiar pattern. Todd Smith-Bunge felt some pain in his low back when he slipped on taconite pellets, but figured it was the usual soreness from an old back injury that would go away after a few days. But when the pain persisted for six days, an MRI scan confirmed he had a new injury.  He then reported it as a new injury, and the Railroad charged him with bad faith late reporting and suspended him for 15 days.

Smith filed a FRSA complaint in federal court, and the Railroad filed a summary judgment motion arguing the late injury report was not made in good faith and thus was not a FRSA protected activity.  Smith responded by filing his own motion for summary judgment, asking the federal  judge to declare the Railroad violated his FRSA right to report a work-related injury without being disciplined.

U.S. District Judge Ann D. Montgomery found Wisconsin Central did indeed violate the FRSA, and ordered a trial on damages.  In so doing, the judge noted:

the FRSA does not require that reported injuries be “new”; nor does the FRSA require employees follow any particular reporting regime. The FRSA only requires that the employee act in good faith to inform his or her employer of a work-related injury.  By calling his supervisor to inform him that he was suffering from low back pain and needed to see his doctor the next day, Smith acted in good faith to report a work-related injury.

The judge also rejected the Railroad’s absurd argument that “Smith was disciplined for making an untimely injury report, not for reporting the injury itself.”  The judge stressed that railroad “rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all” and pointed out how a railroad’s artificially short window for injury reporting violates the FRSA:

As a general matter, railroad work is physically strenuous and feeling stiff and sore is common among railroad workers. In this context, it is not unreasonable to expect that a worker may not appreciate a new injury, or the extent of an initial injury, until several days pass.  This is particularly true where the injury suffered is a more subtle muscular or internal injury, as opposed to a more obvious injury like an open wound or broken bone.  If a worker who suffers a subtle injury knows that reporting the injury after 24 hours will result in disciplinary action, including the possibility of an unpaid suspension, his or her incentive to report the injury is chilled.  This result is contrary to the safety that the Railroad aims to promote by its “prompt” reporting policy, and it is also in direct conflict with the purpose and goals of the FRSA.

The judge also rejected the Railroad’s argument that its duty to report injuries to the Federal Rail Administration justified its Rule requiring the reporting of all injuries within 24 hours, pointing out “a railroad is only required to report injuries to the FRA every 30 days and it is also able to submit amendments to its regular report.”

Given all this, the judge found that “no reasonable juror could conclude that Smith’s injury report was not a contributing factor to the Railroad’s 15-day disciplinary suspension levied against him” and that “no reasonable juror could conclude the Railroad would have disciplined Smith absent a late report of his injury.”  The judge thus denied the Railroad’s motion for summary judgment, granted Smith’s motion establishing liability, and ordered a trial solely on the amount of damages to go forward.

So, thanks to the FRSA, a favorite defense tool easily can be turned into a sword that guts the railroad’s defense.  Here is the full Decision in Smith v. BNSF Railway.  To learn more about the FRSA, go to the Summary of the FRSA and the free Rail Whistleblower Library.