Two recent decisions, one from a federal district court and the other from the Administrative Review Board, reject several of the defenses railroads have raised against Federal Rail Safety Act whistleblower retaliation cases.

Adding a FRSA Count to an FELA Complaint is Allowed

In Battenfield v BNSF Railway Company, Burlington Northern failed to prevent an injured employee from amending his FELA complaint to add a FRSA retaliation count. The Railroad raised the discredited argument that the worker’s use of his CBA procedures to challenge his termination constituted an "election of remedies" that precluded a FRSA claim. The federal district judge rejected that argument, relying on the ARB’s Mercier and Koger decision and the related decision by the District Court in Norfolk S. Ry. Co. v. Solis.

The Solis decision drew an important distinction between the remedies sought under the FRSA and a CBA: "In Koger’s case the unlawful act alleged under the FRSA was a dismissal in retaliation for reporting his injury. The unlawful act alleged in his RLA Section 3 arbitration was dismissal in violation of his rights under the CBA concerning his responsibility for the accident." This critical distinction highlights the fallacy inherent in the argument that a CBA proceeding precludes a FRSA complaint.

An Ultimate Decision Maker’s Lack of Knowledge of FRSA Protected Activity Is No Defense

Railroad’s often try to argue that because the manager who made the ultimate decision to discipline was not aware of the employee’s FRSA protected activity, there can be no violation of the FRSA. In Rudolph v. National Railroad Passenger Corporation, the ARB makes it clear that "defense" is a dead loser:

to focus on the knowledge possessed by the final responsible decision-maker constitutes error as a matter of law. Proof that an employee’s protected activity contributed to the adverse action does not necessarily rest on the decision-maker’s knowledge alone. It may be established through a wide range of circumstantial evidence, including the acts or knowledge of a combination of individuals involved in the decision-making process. Proof of a contributing factor may be established by evidence demonstrating "that at least one individual among multiple decision-makers influenced the final decision and acted at least partly because of the employee’s protected activity."

This includes not just lower level supervisors, but also the attorneys within a railroad’s own legal department. In Rudolph, the deciding manager’s "decisions and action were based on the advice of attorneys within Amtrak’s legal department, who surely were aware of Rudolph’s protected activities." Thus the ARB held that the legal department’s "knowledge is imputed to [the deciding manager]."

Intervening Events Do Not Necessarily Break FRSA Causal Connection

In Rudolph, the ARB confirmed that:

an "intervening event" does not necessarily break a causal connection between protected activity and adverse action simply because the intervening event occurred after the protected activity. The employee’s burden of proving contributory causation will be met even if the railroad also had a legitimate reason for the unfavorable employment action against the employee. Again, proof of causation for "contributing factor" is not a demanding standard. The employee need not prove that his or her protected activity was the only or the most significant reason for the unfavorable personnel action. It is enough that an employee establish that the protected activity in combination with other factors affected in any way the adverse action at issue.

Thus, the only way an intervening event can help a railroad is if the railroad proves by clear and convincing evidence that, due to the intervening events, it would have taken the same adverse action even if the employee had not engaged in the protected activity.

And so it goes. The mannequin dummies the railroads keep propping up as defenses against the FRSA just keep getting knocked flat by judicial decisions.
 

Just a quick post to let everyone know I now am practicing under my own firm and so have a new email address, namely charlie@gowhistleblower.com  My cell number remains the same: 203-376-0526.  As always, feel free to direct your Federal Rail Safety Act whistleblower questions and requests for help to me at charlie@gowhistleblower.com 

The first federal Federal Rail Safety Act jury trial has resulted in an award of attorney fees based on the highest hourly rate in the history of the District Court. This Decision is important because it confirms that attorneys who successfully prosecute FRSA cases will receive top dollar compensation for all their time and efforts.

When a railroad loses a FRSA case, in addition to paying punitive damages, emotional distress, and economic losses, it also must pay the fees generated by the employee’s attorney. Such “fee-shifting” is a penalty designed to increase the incentive of railroads to stop retaliating while encouraging skilled lawyers to prosecute any violations of the law.

The focus of every fee award decision is on the qualifications and performance of the attorney requesting the fees. In the case of Barati v. Metro North Railroad,  that attorney would be me. So self-effacement is not an option (or, to paraphrase Groucho Marx, “modesty flies out the door when attorney fees come innuendo”). Here is the federal judge’s explanation for why she ordered the highest hourly rate in the District:

Attorney Goetsch is undeniably a leading specialist in the law governing railroad employees’ rights, and his longstanding and highly developed practice makes him more efficient, creative, and effective for his railroad employee clients than an attorney of similar trial experience in federal litigation but without the benefits of his specialization. Based on Attorney Goetsch’s experience, his success in this unique case, and the case law evidencing a rise in the prevailing rate, the Court finds that an hourly rate of $525 for his work on this case is reasonable and fulfills the purpose of federal fee shifting statutes to incentivize capable attorneys to take on meritorious cases under the FRSA.

In arriving at the lodestar rate of $525, the Court took into account “Attorney Goetsch’s exceptional performance in being the first attorney to try a FRSA case to a successful verdict” and the fact that “Attorney Goetsch’s practice transcends his local market and competes on a nationwide basis.”

The Court refused to “apportion the requested fees between the FELA and FRSA claims” because “the plaintiff’s FELA and FRSA claims were inextricably intertwined in that they both relied on the same core facts relating to the circumstances of plaintiff’s injury and the railroad’s response to that injury.” Finally, the Court also stressed that “the language of the FRSA does not limit the recovery of expert witness fees in any way” and requires the payment of all the fees generated by an expert witness.

This Decision is a must read for anyone interested in claiming FRSA attorney fees or facing the prospect of paying them. Here is the full text of the Barati v. Metro North Railroad attorney fee award Decision. For more on the FRSA, go to the free Rail Whistleblower Library.

One year ago I tried the first FRSA federal jury trial in the nation for my client Andy Barati. The U.S.District Judge who oversaw that trial now has upheld the jury’s verdict in full. In a 16 page landmark Decision, Judge Janet Bond Arterton rejected the Railroad’s arguments that the jury’s award of maximum punitive damages was excessive and that emotional distress damages should not be available in Federal Rail Safety Act cases.

Punitive Damages
The FRSA has a statutory cap of $250,000 for punitive damages. But as is the proper practice, the jury was not informed of that limit and was allowed to award the amount of punitive damages it felt was just in light of “the degree of reprehensibility of the defendant’s misconduct.” The Barati jury awarded $1 million in punitive damages. As Judge Arterton explained, that award was supported by the evidence:

Here, by their award of four times the statutory maximum, the jury registered their measure of reprehensibility to underscore their finding that the Railroad’s conduct was in reckless disregard of Mr. Barati’s safety and FRSA rights. Their conclusion was supported by the evidence that the Railroad singled Barati out for discipline for a safety violation. The jury also had evidence that Metro North’s termination of Barati was contrary to its written policies and FRA regulations, was a self-serving effort to discourage employee injury reporting in order to keep its injury and lost workday statistics low, violated Metro North’s own obligation to accurately report employees’ on-the-job injuries and resulting lost work days, and contravened Metro North’s “safety statement” that “we are committed to the safety of our employees and our customers,” and “we are determined to provide a work environment where all employees work safety.”

Accordingly, the Court found the maximum punitive damages amount of $250,000 “does not violate due process” because it was fully justified by the evidence.

Emotional Distress
After noting “the issue of whether compensatory damages for emotional distress are recoverable under the FRSA appears to be one of first impression,” the District Court went on to hold “the Court concludes that damages for emotional distress are available under the FRSA.” Judge Arterton explained that the term “compensatory damages” includes both “pecuniary” and “non-pecuniary” damages, and that “non-pecuniary compensatory damages includes compensation for bodily harm and emotional distress, and are awarded without proof of pecuniary loss.” The plain language of the FRSA text controls, and “in the absence of any indication from the statutory language of an intention to limit ‘compensatory damages’ to less than its generally accepted definition, the Court concludes that the FRSA permits recovery for emotional distress.”

Expert Testimony
The plaintiff’s expert was George Gavalla, a former Head of the FRA’s Office of Safety. The Court flatly rejected the Railroad’s argument that his expert testimony was “unduly prejudicial.” Gavalla testified about the FRA imposed standards of care governing every railroad’s treatment of employees who report injuries. Gavalla also testified about the “categories of conduct” the FRA identifies as violating the regulatory prohibition against the “harassment or intimidation of persons calculated to discourage or prevent the reporting of injuries”:

The categories he identified included: “singling out employees who are injured for disciplinary action,” disciplining employees who are injured on the job because of safety violations while other employees who commit the same safety violations and are not injured are not disciplined, and having management or railroad officials “threaten or recommend to employees that they’re better off not reporting an injury or an accident.” Mr. Gavalla spoke of these “categories of conduct” in a general manner, without providing any opinion as to whether Metro North had or had not engaged in any such conduct. That testimony came from Metro North’s own employees which focused specifically on Metro North’s safety regulations, policies, and “culture.” . . . Given the testimony about Metro North’s own safety rules, reporting policies, and disciplinary practices, juxtaposed with the general testimony provided by Mr. Gavalla about the FRA’s role in investigating railroad workplace safety and the importance of accurately reporting work-related injuries, it is clear that Mr. Gavalla’s testimony was proper and not unfairly prejudicial to Metro North.

So, hats off to Andy Barati for standing up and asserting the FRSA right of all railroad workers to freely report injuries without fear of retaliation. No doubt this will be the first of many jury verdicts responding to the abusive hypocrisy of railroads with the maximum amount of punitive damages. For the full text of Barati v. Metro North Railroad.

The law governing Federal Rail Safety Act retaliation complaints just got a whole lot clearer. In a precedent setting decision, a United States Circuit Court of Appeals has resoundingly confirmed the remedial purpose of the FRSA while clarifying the employee-friendly legal standards that apply to all FRSA complaints. As a result, Anthony Araujo v. New Jersey Transit Rail is mandatory reading for every railroad employee, union rep, manager, OSHA investigator, or attorney who needs to understand and apply the FRSA.

Here are just a few excerpts from this game-changing decision.

Remedial Protective Purpose
“The purpose of the FRSA is to promote safety in every area of railroad operations.”
“The rail industry has a long history of under reporting incidents and accidents, and railroad labor organizations have frequently complained that harassment of employees who report injuries is a common management practice.”
“The intent of the FRSA is to ensure that employees can report their concerns without the fear of possible retaliation or discrimination from employer railroads” and “by amending the FRSA, Congress expressed an intent to be protective of plaintiff-employees.”

True Meaning of “Contributing Factor”
“The railroad employee need only show that his protected activity was a ‘contributing factor’ in the retaliatory discharge or discrimination, not the sole or even predominant cause. In other words, a contributing factor is any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” This test means an employee does NOT have to prove “his protected conduct was a significant, motivating, substantial, or predominant factor in an adverse personnel action.” This is consistent with the “in whole or in part” language used in the text of the FRSA statute, and means that if the protected activity played any part at all, even to the slightest degree, then it is a “contributing factor.”

No Need to Prove Retaliatory Motive
“A railroad employee need not demonstrate the existence of a retaliatory motive on the part of the supervisory employee taking the alleged prohibited personnel action in order to establish that his disclosure was a contributing factor to the adverse personnel action.”
“We note the fact an employee need not ascribe a motive to the supervisor or manager greatly reduces the employee’s burden in making a prima facie case. However, we believe this reduced burden is appropriate in FRSA cases. We note that the legislative history shows that Congress was concerned that some railroad supervisors intimidated employees from reporting injuries to the FRA.”

Meaning of Disparate Treatment

Even if an injured employee violates a Rule by following a common practice, the railroad nevertheless violates the FRSA if it disciplines that injured employee after ignoring other employees who followed the same practice. For example, in Araujo, the Court noted “it was common practice for conductor-flagmen not to talk to the electrical linemen, and thus be unaware of the extent of the catenary power outages” but that “no other conductor-flagmen were disciplined for violating any rules” due to following that practice. “While the facts in the record may show that Araujo was technically in violation of written rules, they do not shed any light on whether the Railroad’s decision to file disciplinary charge was retaliatory.” Why? Because the key is whether the Railroad treated Araujo disparately. As the Circuit Court stressed, the fact Araujo was the only flagman involved in a fatal incident does not matter: “while Araujo may have been the only conductor-flagman to have been on duty during a fatal accident, it is not appropriate to put him in a class by himself, and not compare him to other conductor-flagmen who did not know about catenary outages but were not on duty during fatal accidents.”

A Railroad’s Burden of Proof Is Tough to Meet

The Railroad’s burden of proof is much higher than an employee’s. Once the employee proves his prima facie case by a mere preponderance of the evidence, “the burden shifts to the railroad to demonstrate by clear and convincing evidence the railroad would have taken the same unfavorable personnel action in the absence of the protected activity.” “Clear and convincing evidence” is just below “proof beyond a reasonable doubt” and way above a mere preponderance of the evidence. The Circuit Court noted that “for employers, this is a tough standard, and not by accident. . . . the standard is ‘tough’ because Congress intended for railroads to face a difficult time defending themselves, due to a history of harassment and retaliation in the industry.”

McDonnell Douglas Burden Shifting Does NOT Apply to FRSA Cases
“The FRSA burden shifting is much more protective of plaintiff-employees than the McDonnell Douglas framework.”
“It is worth emphasizing that the FRSA’s burden-shifting framework is much easier for an employee to satisfy than the McDonnell Douglas standard.” In order “to emphasize the steep burden that railroads face under the FRSA,” the Circuit Court pointed out that it is not enough for a railroad to “articulate a legitimate, non-discriminatory reason for the adverse action.” So, what would be a valid defense under the McDonnell Douglas standard fails in a FRSA case.

More on the ramifications of this landmark decision later. But for now, hats off to my client Tony Araujo for having the courage to stand up and fight for his rights. All railroad employees should take heart knowing that Congress and now the federal courts have declared that the FRSA must be liberally interpreted and applied so as to fully protect all employees who report injuries. Here is the full text of the Araujo v. New Jersey Transit Rail landmark decision. For more information on the FRSA, go the free Rail Whistleblower Library.

Griebel v. Union Pacific Railroad is yet another example of rail management’s attempt to circumvent the Federal Rail Safety Act  through discipline for “false and misleading” injury reports. After Griebel reported a work-related injury, the Railroad fired him for a “failure to honestly and timely make a report of injury.” A Public Law Board eventually returned him to work, but without any back wages. Meanwhile, Griebel had filed a FRSA complaint, and after a full trial, Administrative Law Judge John P. Sellers, III issued a detailed Decision explaining how the Union Pacific’s conduct violates the FRSA and requiring the Railroad to pay back wages along with punitive damages and emotional distress damages.

Judge Sellers gives a good summary of the types of evidence an employee can use to prove his FRSA complaint:

Direct or “smoking gun” evidence that “conclusively links the protected activity and the adverse action and does not rely on inference”

Circumstantial evidence showing that the railroad’s “proffered reason was not the true reason, but instead a pretext”; such circumstantial evidence may include:

1) timing of the unfavorable personnel action in relation to the protected activity
2) disparate treatment of the whistleblower employee
3) deviation from routing procedures
4) attitude of supervisors towards the whistleblower or the protected activity in general
5) the employee’s work performance rating before and after engaging in the protected activity

But under the FRSA, an employee also can prevail even without showing the railroad’s reason was a pretext: that is, an employee “can alternatively prevail by showing that the railroad’s reason, while true, is only one of the reasons for its conduct and that another reason was the employee’s protected activity.” And whenever a railroad disciplines an employee for reporting an injury in a false, misleading, or untimely manner, “it cannot reasonably be argued that the employee’s filing of the injury report was not one of the reasons” leading to the termination since “it is clear that if the employee had chosen not to file an injury report, he would never have been terminated.”

Thus, in a false and misleading injury report case, a heavy burden falls on the railroad “to prove by clear and convincing evidence that it would have taken the same adverse action” if the employee had not reported the injury. “Clear and convincing evidence” means hard evidence, not suspicion or conjecture or disputed testimony. And the Union Pacific Railroad failed to carry that heavy burden. In the words of Judge Sellers “I find that the evidence demonstrates Griebel’s protected activity was the true reason for his termination and that he would not have been terminated had he not filed a report of injury.”

Finally, Griebel offers a helpful summary of the types of evidence supporting an award for emotional distress. Judge Sellers correctly notes that “no medical or psychological treatment” is necessary to support an award for emotional distress, and that an employee’s “credible testimony alone is sufficient to establish emotional distress.” Examples of evidence establishing emotional distress include testimony confirming “sleeplessness, anxiety, extreme stress, depression, marital strain, loss of self-esteem, excessive fatigue, or a nervous breakdown.” Also testimony noting the physical manifestations of severe emotional harm is sufficient, such as “ulcers, gastrointestinal disorders, headaches, or panic attacks.” But even in the absence of such testimony, Judge Sellers found that an award of $5,000 in “nominal emotional distress damages” was appropriate. For the full text of Griebel v. Union Pacific Railroad. For more on the FRSA, go to the free Rail Whistleblower Library.

Here are some recent developments in the world of the Federal Rail Safety Act.

In Bailey v. Consolidated Rail Corp., ALJ Colleen A. Geraghty found that the Railroad retaliated against the employee due to his reporting safety concerns, and ordered various FRSA make whole remedies. Perhaps the most interesting aspect of the Decision is its rejection of the Railroad’s “sole decision maker” defense.

Railroads often will have the manager who filed the disciplinary charge testify at the kangaroo court hearing, and later have a different manager be the “sole decision maker” who decides whether to actually impose discipline. The railroad then argues that because the “sole decision maker” manager had no knowledge of the employee’s FRSA protected activity, there can be no connection between the protected activity and the decision to impose the discipline.

Judge Geraghty rejected that dodge:

Case law states that either an employee with authority to take the adverse action, or an employee “with substantial input” in that decision, must have known of the protected activity. . . . Although the [sole decision maker manager’s] decision occurred following an investigation and hearing, this is insufficient to sever the influence by [the charging manager] because the [charging manager] participated in the investigation and testified against the employee at the hearing. Thus it cannot be said that there was a truly independent investigation apart from [the charging manager’s] influence.

Bailey at pages 25 and 31. At page 25, Judge Geraghty cites both ARB and federal court decisions confirming this principle.

A similar dynamic was in play in Thompson v. Norfolk Southern Railway Co. Thompson was a conductor suspended for supposedly “falsifying an injury.” Chief ALJ Daniel A. Sarno, Jr.’s Decison sets forth how such cases are to be analyzed.

The burden is on the railroad to demonstrate by clear and convincing evidence that it acted in good faith. And to determine whether a railroad actually held a good faith belief the employee falsified his injury, the Judge will closely “examine the procedures by which the railroad investigated and disciplined the employee.” Judge Sarno found there is no good faith if the railroad ignored or discounted evidence supporting the employee. And similarly there is no good faith if the hearing officer did not conduct a truly neutral investigation free from any input by the charging managers.

Thompson also is notable for its holding that when an employee who files a FRSA complaint dies while the claim is still pending, FRSA damages for emotional distress survives the death, but not punitive damages.

 

The old English Common Law had a phrase for the argument: “de minimis non curat lex” (“the law does not concern itself with trifles”). But unfortunately for American railroads, the U.S. Department of Labor’s Administrative Review Board has emphatically rejected the application of that argument to violations of the Federal Rail Safety Act.

The facts of Laura Vernace v. PATH Rail demonstrate the absurd lengths to which railroads will go in their attempts to rationalize retaliation against injured workers. Laura was a Signal Tester for PATH working in the Relay Room below the World Trade Center when she had to sit down on a chair to fill out FRA forms (full disclosure: I am the attorney who represented Laura). She chose a normal looking office chair on rollers. However, after she sat down, the backrest unexpectedly collapsed and the chair shot out from under her, causing her to fall backwards and strike her head on the concrete floor.

Laura duly reported the injury, and three weeks later received a charge letter accusing her of violating safety rules because she “failed to exercise constant care and utilize safe work practices to prevent injury to yourself when you did not inspect a chair.” She was ordered to attend an investigative hearing, but the hearing was not held and then one year later PATH dropped the disciplinary charges.

Laura filed a FRSA Complaint alleging the mere filing of a charge letter, without more, constitutes an adverse action. OSHA agreed, and ordered punitive damages. PATH objected, and a de novo trial was held before ALJ Judge Theresa C. Timlin, who issued a detailed Decision explaining why the Railroad’s “intimidating” and “threatening” conduct violated the FRSA and warranted punitive damages. PATH appealed to the ARB, which resoundingly affirmed Judge Timlin:

Congress re-emphasized the broad reach of FRSA when it expressly added “threatening discipline” as prohibited discrimination in section 20109(c) of the FRSA whistleblower statute. . . . Where termination, discipline, and/or threatened discipline are involved, there is no need to consider the alternative question whether the employment action will dissuade other employees.

PATH unpersuasively challenges the ALJ’s factual finding of causation by arguing that it initiated a disciplinary investigation only because of the allegedly unsafe use of a chair (sitting on it) and not because Vernace reported an injury. As the ALJ explained, this clever distinction ignores the broad and plain language of the statute and regulations. It also ignores FRSA’s extensive legislative history citing the rampant practices of abuse and intimidation inflicted on railroad workers who reported or even attempted to report work injuries.

The ARB was just being nice when it used the phrase “clever distinction.” “Laughably ridiculous” is more like it. But what really jumps out of the ARB’s Decision is its directive that the FRSA must be interpreted and applied in order to put a stop to “the rampant practices of abuse and intimidation inflicted on railroad workers who report or even attempt to report work injuries.” Roger that.

The take away? There is no such thing as a “de minimus” violation of the FRSA. Even if a railroad rescinds a charge letter and does not go forward with a hearing or impose any discipline, that does not cure its violation of the FRSA for filing the letter in the first place. Here is the full text of Laura Vernace v. PATH Rail. For more on the FRSA, go to the free Rail Whistleblower Library.

The sad saga of Norfolk Southern’s reckless disregard for the rights of its injured workers continues. You would think that after nearly a dozen adverse Federal Rail Safety Act Findings ordering millions in punitive and other damages, it could not get much worse for Norfolk Southern. And yet it does.

This time, OSHA comes right out and states in its official Finding that Norfolk’s superintendent “was intentionally untruthful in the investigative hearing and to OSHA.” Ouch. And as if lying to a federal agency was not enough, OSHA stated that Norfolk’s

investigation and hearing process appear to have been intentionally orchestrated to support the decision it had already made: to terminate the Complainant’s employment. . . . Complainant was subjected to an investigative hearing that was neither fair nor impartial. Norfolk directly targeted Complainant because of his injury report and humiliated him for filing the report. . . . Norfolk’s immediate retaliation against this employee for reporting an on-the-job injury exhibited a reckless disregard for the law and total indifference to Complainant’s statutorily protected rights. . . . Norfolk’s continued callous disregard for Complainant’s and other employees’ protected rights under FRSA warrants significant punitive damages.

The facts fit the usual Norfolk Southern pattern: after doing a task a worker feels some discomfort but believes it will go away so does not report it as an injury; when the pain does not go away and increases, the next day he reports it as an injury; Norfolk Southern charges him with falsification of a personal injury, making false or conflicting statements relative to the injury, and failing to promptly report the injury; Norfolk holds the usual kangaroo court hearing and fires him. After firing him, Norfolk then offers him a “leniency waiver” which the financially desperate worker signs in order to keep his career. For earlier examples of Norfolk’s misconduct, click here and here and here and here and here.

OSHA specifically found that such “waivers” are “illegal and contrary to FRSA.” OSHA ordered Norfolk to expunge the waiver and pay, among other things: back wages, costs to purchase lost RRB credits, $125,000 in emotional distress, and $150,000 in punitive damages. Thanks to the FRSA, Norfolk is losing its war against its injured workers. For the full text of Timothy Mull v. Norfolk Southern Railway Company. For more on the FRSA, go to the free Rail Whistleblower Library.

A federal district court has ruled that a General Release for a Federal Employers Liability Act  personal injury does not also release a pending Federal Rail Safety Act complaint. In Tagliatela v. Metro North Railroad, 2012 U.S.Dist LEXIS 161835 (D.Conn. Nov. 13, 2012), custodian Ralph Tagliatela was disciplined for the “late reporting” of an injury. He filed a FRSA complaint with OSHA, and while that investigation was pending signed a General Release for his FELA claim. A month later, OSHA issued its merit Finding, to which Metro North objected without citing the FELA Release. After Tagliatela opted into federal district court, Metro North filed a motion for summary judgment, arguing for the first time that the FELA General Release also released the FRSA complaint.

We already have pointed out that parties cannot release FRSA complaints without the express approval of OSHA. Click here for the reasons why. In Tagliatela, OSHA had not approved any settlement of the FRSA complaint it was investigating, and in fact issued a merit Finding after the FELA Release was executed. However, the district court did not actually rule on the legal necessity of OSHA approval because it found the terms of the General Release itself did not include the pending FRSA complaint.

The federal judge found “it is clear from the terms of the release and the parties’ intent that Tagliatela’s FRSA claim is not barred.” The injury occurred on April 12, 2008, and the disciplinary charge was filed a couple weeks later, and the judge drew a critical distinction between when an injury claim arises and when a FRSA claim arises:

the release cannot be interpreted to mean that Tagliatela’s FRSA claim arose from the injury he sustained when he twisted his knee on April 12, 2008. Rather, his FRSA claim can be interpreted as having arisen from his protected activity of reporting a workplace injury and not the injury itself. Further, the circumstances of the transaction confirm that it was not the parties’ intent to release Tagliatela’s FRSA claim. When the release was executed on May 29, 2009, the parties had been actively litigating Tagliatela’s FRSA claim before OSHA for almost a year. . . . The failure to include any language expressly releasing Tagliatela’s pending FRSA claim clearly evinces that it was not the parties’ intent to release Tagliatela’s FRSA claim. . . Since the release does not bar Tagliatela’s FRSA claim, this Court need not address whether OSHA approval was necessary to effectuate any such release.

And even if a FELA release specifically references a pending FRSA complaint, it is OSHA’s position that any “settlement” of a FRSA complaint by the parties has no force or effect unless and until it is expressly approved by OSHA.

So, what is the bottom line? Unless OSHA has explicitly approved the settlement of a FRSA complaint after reviewing the FELA release for fairness and compliance with DOL policies, it is magical thinking for the parties to pretend that a pending FRSA complaint is actually included in a FELA release. For the full text of the district court’s ruling, see Tagliatela v. Metro North Railroad, 2012 U.S.Dist LEXIS 161835 (D.Conn. Nov. 13, 2012). For more on the FRSA, go to the free Rail Whistleblower Library.