Every railroad has them. Vague safety rules that are triggered only when a worker reports an injury. In a blistering Decision, a veteran Administrative Law Judge spells out why the use of such rules mandate the award of Federal Rail Safety Act punitive damages.

Union Pacific employee Brian Petersen was leaning against his car in a company parking lot when the tire of a co-worker’s car ran over his foot. When Petersen reported the injury, the Railroad charged him with safety rule violations and fired him. After a three day trial, Administrative Law Judge Pamela A. Lakes ordered the immediate reinstatement of Petersen along with $325,000 in make whole remedy damages. In the words of Judge Lakes:

the Railroad’s safety rules are written in such a manner that anyone who is injured and reports it will have violated a least a part of one or more of them. For example, Rule 1.1.2 (Alert and Attentive) requires that employees be careful to prevent injuring themselves or others; Rule 70.1 (Safety Responsibilities) requires that employees be responsible for their personal safety and take every precaution to prevent injury to themselves; Rule 70.5 (Protection of Body Parts) prohibits employees from placing any part of their bodies in a position "where they might be struck, caught, pinched or crushed"; Rule 1.6 (Part 1, Careless of Safety) relates to a rules infraction by employees that "demonstrates a willful, flagrant, or reckless disregard for the safety of themselves"; and Rule 1.6 (Part 2, Negligent) precludes behaviors or actions by an employee that "cause, or contribute to, the harm or risk of harm to the employee." The Railroad charged Petersen with violating these rules because he "may have failed to take precaution to avoid having [his] feet run over. . . resulting in [his] sustaining a possible injury to [his] feet and back." Thus, these Rules in effect punish an employee for being injured. The Railroad cannot argue that Petersen was being disciplined for being injured as opposed to reporting the injury, because that is a distinction without a difference.

there would clearly be a chilling effect on the reporting of injuries if railroads were permitted to discipline employees for not avoiding injury, as it did here. . . . Even though I have handled multiple whistleblower cases since I began employment with the Office of Administrative Law Judges in 1994, I have never awarded punitive damages before. However, the actions by Union Pacific have been so egregious in this case, and Union Pacific has been so openly blatant in ignoring the provisions of the FRSA, that I find punitive damages are necessary to ensure that this reprehensible conduct is not repeated. Indeed, it would be difficult to envision a case that reveals a more blatant disregard for the whistleblower provisions of the FRSA than the instant case, which involves retaliation against an employee for reporting that his feet were run over while he was leaning against his car in a parking lot. The position taken by Respondent in the instant case is troubling, to say the least, and involves an egregious degree of culpability.

The Judge ordered Union Pacific to immediately reinstate Petersen and pay $325,000 in lost wages, emotional distress, and punitive damages. And so it goes, and will continue to go, for as long as railroads deny the reality of the FRSA. For the full Decision in Brian Petersen v. Union Pacific Railroad Co.,click here.

The message of the Federal Rail Safety Act is clear: "safety trumps discipline." And until railroads fully embrace that new reality, the number of FRSA complaints will continue at a record pace.

Williams v. Grand Trunk Western Railroad is the latest confirmation of this new reality. In addition to elucidating the employee friendly standards governing any motion to dismiss a FRSA complaint, Williams underscores the FRSA’s robust protection of railroad workers who follow their doctor’s orders to remain off work due to any medical condition.

After locomotive engineer Williams took days off from work due to a medical condition that interfered with his ability to safely perform his job, the Railroad fired him for excessive absenteeism. When Williams filed a FRSA complaint, the Railroad asked Chief Administrative Law Judge Stephen L. Purcell to dismiss the complaint because the medical condition was not work-related. Chief Judge Purcell soundly rejected that argument:

I find that the statutory language of Section 20109(c)(2) protects employees who are following a physician’s treatment plan for illnesses or injuries, regardless of whether they are work-related, inasmuch as such an interpretation flows from the plain language of the statute and advances the overall safety purposes of the FRSA.

When it is the medical judgment of a treating physician that a patient is not physically capable of performing his or her work-related duties because of an injury or illness, that individual should not have to choose between, on the one hand, following the physician’s advice to abstain from working or, on the other hand, jeopardizing the health and safety of the employee’s fellow workers and the traveling public by working because the employee may be fired. . . . A railroad cannot simply fire an employee for relying on his treating physician’s opinion that he was too ill to work. Doing so would thwart the very purpose of the FRSA to promote safety and reduce accidents and incidents.

This is in line with the ALJ’s Decision in Bala v. PATH and with the spirit of the ARB’s interpretation of Section (c) in Santiago v. Metro North Railroad. Thanks to the FRSA, safety now trumps discipline in the railroad industry.

 

When airline pilots feel medically unfit to fly, they have a right to stand down and seek medical attention without any adverse consequences. Thanks to the Federal Rail Safety Act, locomotive engineers (and all other railroad workers) now enjoy the same right to protect themselves, their co-workers, and the public.

When Locomotive Engineer Lonnie Smith became dizzy with blurred vision, he informed his supervisor Senior Terminal Manager Steven Wilson it was unsafe for him to continue working and requested medical attention. Manager Wilson responded by threatening Smith with discipline if he did not continue working.

Administrative Law Judge Lee J. Romero, Jr. heard all the evidence, and found such conduct to be an egregious violation of the FRSA that required the imposition of punitive damages. Here are some excerpts from the Judge’s 82-page Decision:

Complainant engaged in protected activity by: reporting his illness which was significantly aggravated by his working conditions; requesting medical treatment or care which was denied, delayed, or interfered with by the Railroad; and expressing his belief that it was unsafe for him to continue performing his work while ill, which he reasonably believed constituted a violation of the FRA safety regulations.

In the instant case, punitive damages are warranted for several reasons. Union Pacific and Smith’s manager were egregiously reprehensible resulting in retaliatory acts which caused Smith to suffer physical and emotional harm. The manager threatened and coerced Smith into continuing to work despite repeated statements by Smith that he could not safely work because of his illness symptoms and requests to seek medical care. Moreover, the Railroad’s actions also put Smith’s co-workers and the public in harms way by requiring him to continue to work under such dire circumstances. I find that these actions demonstrate a complete indifference to, and a callous disregard for employee health and safety.

Completion of work was more important to Manager Wilson than an employee’s request for medical care and treatment. . . . Given this factual scenario, I find Union Pacific’s conduct to be outrageous and unsympathetic to the rights of its workers. Therefore, I find it proper to award punitive damages to punish Union Pacific’s disregard for its worker’s rights and to deter similar conduct in the future.

The Judge not only ordered the Railroad to pay punitive damages, he also ordered Manager Wilson to pay additional punitive damages to Smith. For the full text of Lonnie Smith v. Union Pacific Railroad Company, click here. For the leading briefs explaining why the FRSA grants railroad employees the right not to work when medically unfit, see Complainant Bala’s Brief in Bala v. PATH and the United States Department of Labor’s Amicus Brief in support of Bala.
 

Yet another federal district court judge has rejected rail management’s election of remedies defense to Federal Rail Safety Act whistleblower retaliation complaints. You can add Ratledge v. Norfolk Southern Railway Company to the growing list of federal court decisions dope slapping the railroads who raise such a hapless argument: see Solis, Reed, and Battenfield.

Ratledge concerns an injured conductor who was fired based on bogus allegations by Norfolk Southern that he falsified his injury. While Ratledge’s union was pursuing his Railway Labor Act remedies, he also filed a FRSA retaliation complaint with OSHA. After OSHA ruled in his favor and Norfolk Southern objected, Ratledge opted for a FRSA jury trial in federal court. The Railroad then moved to dismiss the FRSA complaint, arguing that the FRSA’s Election of Remedies provision barred Ratledge from pursuing both his RLA and FRSA remedies.

The U.S. Department of Labor weighed in with the court, reaffirming its position that the FRSA’s election of remedies provision does not bar railroad workers from simultaneously pursuing RLA CBA and FRSA whistleblower remedies.  The United States District Court agreed, and emphatically rejected the Railroad’s argument. Here are some excerpts from the Decision:

The word “another” in subsection (f) implies the second provision of law should be similar in kind to § 20109. . . . With the disjunctive “or” in subsection (h), the statute distinguishes between “Federal or State law” and rights or remedies held “under any collective bargaining agreement.” More succinctly stated, § 20109 distinguishes between legal remedies and CBA remedies. . . . the Court concludes NSR’s interpretation of § 20109(f) conflicts with the statutory language, its history and prior iterations, and relevant legislative materials. Plaintiff did not waive his FRSA retaliation rights when he entered RLA arbitration.

In fact, the federal court found the language and intent of the FRSA to be so clear that application of Chevron agency deference was not even necessary: "The Court concludes any ambiguity in the phrase “another provision of law” is resolved by traditional tools of statutory construction, including the relevant statutory context."

The more railroads raise this bogus defense, the stronger the precedent against it gets.

Thanks to the Federal Rail Safety Act, railroads can no longer interfere with the medical treatment of injured employees. That fact is being reinforced with punitive damage awards against railroads who ignore this new reality.

In the landmark decision of Santiago v. Metro North Railroad, the Administrative Review Board held that FRSA "Section 20109(c)(1) bars a railroad from denying, delaying, or interfering with an employee’s medical treatment throughout the period of treatment and recovery from a work injury." The ARB also held that a prima facie FRSA violation is established "the instant that the railroad carrier directly or indirectly inserts itself into the process and causes a denial, delay, or interference with the medical treatment." Such a railroad is liable under the FRSA unless it proves "by clear and convincing evidence that the result would have been the same with or without the railroad’s interference" with the medical treatment.

The ARB remanded Santiago to Administrative Law Judge Geraghty for an application of those legal standards to the facts. Judge Geraghty’s Remand Decision confirms that Metro North did indeed violate the FRSA when it interfered with Santiago’s medical treatment based on the decision of its Medical Department to classify his injury as non-occupational, a decision that "was contrary to the objective diagnostic tests, medical records, ongoing symptoms, and the treating physician’s opinion."

Here are some of Judge Geraghty’s findings regarding punitive damages:

I find that the circumstances of this case warrant an award of punitive damages. The recent whistleblower amendments to the FRSA were created in response to Congress’ concern that some railroad policies reduce employees’ willingness to report work-related injuries. The actions of Metro North are exactly what the amendments were intended to prevent. . . . Metro North’s reckless indifference and disregard for its responsibilities under the newly enacted Section 20109(c) of the FRSA is reprehensible. Following the effective date of Section 20109(c), Metro North did not instruct its Medical Department staff to change anything nor did it instruct them not to delay, deny, or interfere with the medical treatment of an employee’s treating doctor. . . . Metro North’s interference resulted in a four month delay in Santiago’s treatment, prolonging his pain . . . Based on the foregoing, I conclude that an award of punitive damages is appropriate in this case.

The new reality is that the instant a railroad medical department directly or indirectly interferes with the medical treatment of an injured employee, the railroad will be on the hook for punitive damages, plus any other FRSA damage elements such as emotional distress.

Another federal district court judge has rejected rail management’s bogus "election of remedies" defense to Federal Rail Safety Act whistleblower retaliation complaints.

Reed v. Norfolk Southern Railway Company concerned a trackman who was fired after reporting an injury. While the Brotherhood of Maintenance of Way Employees union was representing him for that disciplinary action, Reed also filed a complaint with OSHA’s Whistleblower Office alleging the Railroad’s conduct violated the FRSA. When Reed opted for a FRSA jury trial in federal court, the Railroad moved for summary judgment, arguing that the FRSA’s Election of Remedies provision barred him from pursuing both his RLA and FRSA remedies.

The United States District Court soundly rejected the Railroad’s argument. Here are some excerpts from the Decision:

a CBA is not "another provision of law" as contemplated by the FRSA’s Election of Remedies provision

grievances filed pursuant to a collective bargaining agreement are not encompassed by the phrase "another provision of law" in the Election of Remedies provision of the FRSA

the Department of Labor has consistently taken the position that the FRSA Election of Remedies provision is not triggered by an employee pursuing arbitration under a collective bargaining agreement because a collective bargaining agreement is a private contract and not another provision of law . . . [and] the Department of Labor’s interpretation is reasonable

The railroads keep trying to sell their discredited Election of Remedies argument, but no one is buying it.
 

A new web page for all things concerning the rights of railroad whistleblowers is now available on line. Go to "Rail Whistleblower Resources" for everything you need to know about the Federal Rail Safety Act. In addition to a "Summary of Rail Whistleblower Protection" and "Special FRSA Legal Standards," you will find the leading FRSA case law divided by subsection and organized by federal, ARB, ALJ, and OSHA decisions. There also are sections on Election of Remedies, Punitive Damages, Attorney Fees, and much more. To receive automatic updates on breaking FRSA developments, enter your email address in the free subscription box at Train Law Blog. 

"If you see something, say something, except if you work for the railroad . . . " That was the theme of the nation’s second FRSA jury trial, resulting in a $1.5 million verdict for two workers who were disciplined after reporting a safety hazard. This was a FRSA only claim, and combined, the two workers lost one day of work due to the disciplinary finding against them.

In March 2010 PATH signalmen Jason Brig and John Buchala were working along the right of way at dusk. Without warning, an unlit work train going 40 mph entered their work site, forcing them to jump out of the way at the last second. When they complained about the unsafe equipment and procedures that allowed such a close call to happen, instead of thanks they were charged with "unsafe work practices," tried, and found guilty.

Neither sustained any FELA injury, and they only lost a single day’s pay between them, but they wanted to stand up for their FRSA-protected whistleblower rights. They filed a FRSA only complaint, and opted for a jury trial in federal court. My colleague and fellow ARLA Board member Marc Wietzke tried the case in Manhattan, and on June 28th the jury returned a verdict awarding each worker $500,000 in punitive damages plus $250,000 in compensatory damages. Even when the punitive damages are reduced to the statutory cap of $250,000, each man still will receive half a million dollars for discipline that resulted in almost no economic loss. And that does not include the fees and costs the Railroad will have to pay their attorney. And the judge has agreed to order the Railroad to expunge the records of both workers.

A pattern is emerging in these FRSA jury trials. In the first trial, Barati v. Metro North, the Railroad fired Andy Barati, reinstated him three months later, and eventually paid his lost wages and expunged his record. Nevertheless, the jury responded with $1 million in punitive damages. In this second trial, the disciplined workers lost almost no time and little economic loss, and the jury responded with $500,000 in punitive damages for each plus a significant emotional distress award.

So now the first two juries to hear FRSA cases have spoken. And the message they sent to railroads nationwide is loud and clear: the public will not tolerate any violations of the FRSA, and railroads who ignore the FRSA will be slammed with the maximum amount of punitive and emotional distress damages.

So hats off to Marc and his two clients for standing up and delivering another body blow to the railroad culture of retaliation. For the jury charge and verdict in Barati, click here and here. For the jury instructions and verdict in Brig & Buchala, click here and here.

The federal courts and Administrative Review Board now are moving in lock step regarding the employee friendly legal standards applicable to FRSA complaints. Building on the landmark Araujo v. New Jersey Transit Rail 708 F.3d 152 (3rd Cir. 2013) federal circuit court decision, the ARB in Hutton v. Union Pacific Railroad Company confirms that the FRSA’s "contributing factor" element is satisfied whenever the chain of events leading to an employee’s discipline would not have begun without the employee reporting an injury. In other words, if the discipline is based on an investigation that was begun only as a result of the employee reporting an injury, then the reporting of the injury constitutes a "contributing factor."

In Hutton, the chain of events that led to the employee’s termination would not have commenced if the employee had not filed an injury report. The ARB ruled that fact alone is enough to satisfy the "contributing factor" element. And in so doing, the ARB also underscored that no proof of retaliatory animus is required in FRSA cases, and that a railroad’s "legitimate business reason" is not a defense. Here are some excerpts from this important ARB decision:

Although the ALJ stated that the chain of events leading to Hutton’s termination would likely never have occurred had he not reported his injury, the ALJ determined that this was not the test for contributory factor under the FRSA. This was error. The ARB has repeatedly ruled that under certain circumstances a chain of events may substantiate a finding of contributory factor. Compounding his error, the ALJ determined that no witness demonstrated “animosity” against Hutton, suggesting that Hutton was required to prove retaliatory animus or motive. Neither motive nor animus is a requisite element of causation as long as protected activity contributed in any way – even as a necessary link in a chain of events leading to adverse activity.

The circumstances presented here are analogous to the facts in DeFrancesco v. Union RR Co., in which we considered the application of the FRSA to the discharge of an employee who reported a work-related injury. In DeFrancesco, the employee reported his injury, which led to an investigation into his disciplinary history and prior injury reports, and the investigation resulted in the employee’s suspension. . . . we held that if DeFrancesco had not reported his injury, the company would not have conducted the investigation that resulted in the discipline. We concluded that DeFrancesco’s injury report was a contributing factor in his suspension, and we remanded the case to the ALJ to determine whether the respondent could show by clear and convincing evidence that it would have suspended DeFrancesco in the absence of his protected activity

The ALJ appeared to base his dismissal solely on a finding that Hutton committed a dismissible offense (failure to attend investigative hearing), similar to the legitimate business reason burden of proof analysis that does not apply to FRSA whistleblower cases. Under the FRSA whistleblower statute, the causation question is not whether a respondent had good reasons for its adverse action, but whether the prohibited discrimination was a contributing factor “which, alone or in connection with other factors, tends to affect in any way” the decision to take an adverse action.

Bottom line is, no matter what the forum, railroads cannot escape the application of the FRSA’s extremely employee friendly legal standards.

The ultimate rail safety lessons from the Metro North Railroad train derailment are yet to be learned.  As the investigation continues, our foremost concern is for the injured Metro North passengers and Metro North crew members.  But one thing is clear: this train collision reminds all of us that the operation of our nation’s railroads profoundly affects the safety of the passenger riding public as well as railroad workers.