Train Law Blog

Train Law Blog

The Source for Railroad Injuries & Whistleblower Protection

FRSA Subsection (c)(2)’s Safe Harbor Exception

Posted in Federal Rail Safety Act

In a case of first impression, a federal judge has applied FRSA subsection (c)(2)’s exception to the prohibition against railroads disciplining employees for following the orders of a treating physician. Stapleton v. Union Pac. R.R. Co.

The exception to (c)(2) is:

a railroad carrier’s refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to Federal Railroad Administration medical standards for fitness for duty or, if there are no pertinent FRA standards, a carrier’s medical standards for fitness for duty.

Kelly Stapleton was a locomotive engineer who reported an injury for which he received medical treatment. When his treating doctor OK’d him to return to work, the Railroad’s Medical Department refused to allow him to do so.

Turns out that four years before, the Railroad had added “treatment with anti-seizure medication to prevent seizures” to its list of medically disqualifying conditions. Separate from his work injury, Stapleton had been diagnosed with epilepsy and was being treated with anti-seizure medication. So when his return to work exam revealed that, the Railroad refused to allow him to continue operating locomotives.

Stapleton sued under the FRSA claiming the refusal was in retaliation for his reporting of an injury. But the federal judge found (c)(2)’s Safe Harbor “exempts railroads from retaliation claims” for refusing to allow an employee to return to work pursuant to the railroad’s “medical standards for fitness for duty.”

Here is the full text of Stapleton v. Union Pac. R.R. Co. For more information on the rights of railroad whistleblowers, go to the free Rail Whistleblower Library.

How the FRSA Can Protect Safety Absences From Discipline

Posted in Federal Rail Safety Act

It is especially important for rail workers in safety sensitive positions to know how to book off when their medical condition renders them unsafe. To quote the Chairman of the NTSB: “The public deserves alert operators. That’s not too much to ask.” Yes, but how can a rail worker protect a safety absence from discipline? Well, in Winch v. Dir, OWPC, 2018 U.S. App. LEXIS 3584 (11th Cir. 2018), the 11th Circuit Court of Appeals spells out how railroad employees can have safety absences protected by FRSA subsection (b)(1):

After careful review, we find that the ARB’s fact-specific decision was supported by substantial evidence. Like the ARB, we do not opine on whether calling in to report one’s own illness can qualify as “reporting . . . a hazardous . . . condition” under § 20109(b). Assuming for purposes of this opinion that it can, the ARB relied on substantial evidence in concluding that Winch did not actually “report[] . . . hazardous . . . condition” under § 20109(b)(1)(A). As the ARB noted, when Winch called in sick, he told the crew operator only his name, his identification number, and his desire to be marked off sick; he failed to list or describe any of his symptoms and how they would impact the performance of his duties. Nor did Winch otherwise put CSX on notice that he was “reporting . . . a hazardous . . . condition.” Indeed, nothing in his call indicated that he was attempting to trigger this hazardous-condition provision as opposed to simply requesting a sick day.

The take away? A railroad worker who wants a safety absence to be protected from discipline under FRSA subsection (b)(1) must:

  1. inform the Railroad orally and in writing that he is in an unsafe condition to perform his duties, by
  2. listing his symptoms and describing how they would impact the safe performance of his railroad duties, and
  3. if possible, backing it up with a doctor’s note confirming the symptoms and the doctor’s order not to work.

Safety absences must be protected. Here is the full text of Winch v. Dir, OWPC, 2018 U.S. App. LEXIS 3584 (11th Cir. 2018). For more on the whistleblower rights of railroad employees, go to the free Rail Whistleblower Library.

What Is a Work-Related Illness?

Posted in Federal Rail Safety Act

Federal Rail Safety Act Section 20109(a)(4) protects rail workers who notify their railroad of “a work-related personal injury or work-related illness.” Injuries usually are pretty obvious. But what qualifies as “a work related illness”? The federal court in Williams v. Ill. Cent. R.R. holds that any illness arising during the course of employment is included, not just illnesses caused by the conditions of an employee’s railroad work.

Marcus Williams was a locomotive engineer who experienced what he believed were heart attack symptoms while at work and asked to be taken to the hospital. He was given a note to take off the next work day, and did so. The Railroad used that absence to fire him for violating its attendance policy. When Williams filed a FRSA complaint, the Railroad raised several arguments, all rejected by the federal judge.

First, the Railroad sought ” a bright-line rule that persons who experience a heart attack at work do not qualify for protections of the FRSA until an expert testifies that the heart attack was caused by work conditions.” But the judge rejected that narrow interpretation of subsection (a)(4).

Second, the Railroad argued Williams was not protected because he did not fill out the Railroad’s  injury report form. The judge rejected that as well: “The FRSA does not require employees to follow any particular reporting regime.” This is undoubtedly correct, as the statutory language of (a)(4) reads: “to notify, or attempt to notify, the railroad” of a work-related injury or illness. Mere notification is sufficient, not the filling of any railroad injury report form. And indeed, subsection (h) confirms the FRSA rights of employees “may not be waived by any form or condition of employment.”

Third, the judge rejected the Railroad’s reading of the Third Circuit’s PATH decision that, to be protected, an injury or illness must be “caused by work conditions.” The judge noted

The PATH Court concluded that “Congress intended the entirety of subsection 20109(c) to apply only when an employee sustains an injury during the course of employment.” . . . The Third Circuit nowhere indicated that an “on duty injury” or “work-related injury” meant anything more than that the injury must have occurred while the plaintiff was working.

Finally, regarding Illinois Central’s “clear and convincing evidence” defense that it fired Williams for violating the attendance policy “without regard to the reason for the absence, “the judge responded: “But that is exactly the problem. . . . If an employee is following doctor’s orders to stay at home, as in this case, his railroad should not classify the absence as a violation of attendance guidelines.”

Here is the complete text of Williams v. Ill. Cent. R.R. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

A Tale of “Malicious Compliance”

Posted in Federal Rail Safety Act

How bad is it on New Jersey Transit Rail?

So bad, the NJT Chief Compliance Officer (my client Todd Barretta) had to file a Federal Rail Safety Act whistleblower retaliation complaint after he was terminated for insisting the Railroad comply with FRA safety regulations. Here is the Bloomberg article.

So bad, NJT Rail employees who refuse to violate safety rules are charged with “malicious compliance.”

So bad, droves of the most skilled and experienced workers have fled to Metro North Railroad (of all places) for relief from the dysfunction.

The use of the term “malicious compliance” says all you need to know about NJT’s profoundly unsafe culture. But change is on the way. Declaring NJT “a national disgrace,” the new Governor is replacing the top managers and ordering a top to bottom audit of the entire Railroad. But the transformation of an entrenched workplace culture is never easy. It will be fascinating to watch this drama unfold. Stay tuned.

For more on the whistleblower rights of rail workers, see the free Rail Whistleblower Library.

Update on Notable FRSA Cases

Posted in Federal Rail Safety Act

The steady stream of FRSA Section 20109 whistleblower decisions continues apace. Here are some recent notable decisions to keep in mind.

Railroad Bad Faith Conduct

The decision by U.S. District Judge Susan Richard Nelson in Johnston v. BNSF Railway Company is remarkable in several respects. Judge Nelson granted the employee’s Motion for Reconsideration and reversed her prior summary judgment dismissal of the FRSA claim, in part due to a Railway Labor Act arbitrator’s ruling voiding the discipline and reinstating Johnston with full back pay. The Judge noted that a railroad’s “inconsistent application” of its rules and its proffer of reasons that are “unworthy of credence” are enough to allow a jury to infer a retaliatory motive. And the Judge also confirmed that the cat’s paw theory applies: the fact the ultimate decision maker is ignorant of an employee’s protected activity is not a defense when lower level managers with some knowledge of the protected activity provided the information on which the final decision maker based his decision.

Factors Affecting Transfer of Venue

For a discussion of the various private interest and public interest factors controlling a decision on a motion to transfer venue, see Neylon v. BNSF Railway Company.

Bifurcation Not Indicated

In federal court cases involving combined FELA injury and FRSA whistleblower retaliation claims, the attempts by railroads to bifurcate the case into two separate trials have not met with much success. As Judge Nelson pointed out in Johnston, any jury confusion or undue prejudice “can be addressed by careful cautionary instructions to the jury.” And in Wooten v. BNSF Railway Company, the Judge explained why the fact FELA and FRSA claims have distinct elements is not controlling: “Jurors are routinely asked to resolve multiple claims involving distinct elements, defenses, and burdens of proof in a single case.” And given that combined FELA and FRSA claims are factually related with overlapping evidence, it is in the best interest of judicial economy to try them together.

Adverse Action and Inextricably Intertwined

In Stallard v. Norfolk Southern Railway Company, 2017 Ad. Rev. Bd. LEXIS 61 (ARB No.16-022 October 5, 2017), the Administrative Review Board reminds us of the FRSA’s low threshold for adverse action: “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.” And the ARB also reconfirmed that where “the protected activity and the adverse action are ‘inextricably intertwined,’ there exists a presumptive inference of causation.” And what does inextricably intertwined mean? In the words of the ARB: “Where the basis for the adverse action cannot be explained without discussing the protected activity, the protected activity and adverse action are inextricably intertwined.”

For the complete texts of the cases cited above, click on their links. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

What Is A Hazardous Safety Condition?

Posted in Federal Rail Safety Act

Rail workers who report a “hazardous safety condition” are protected from retaliation by FRSA subsection (b)(1)(A). There are not many cases discussing the scope of that protection, but a recent federal district court decision brings it into sharper focus. Head v. Norfolk Southern Railway Company.

The 3rd Circuit was the first court to comment on (b)(1)(A). In dicta, the Circuit reasoned that while (b)(1)(A) must protect reports of railroad related safety hazards, it would not protect hazards totally unrelated to the railroad. PATH v. DOL (Bala).

In Head, the district court found that reporting bad-order tags and complaining about a utility vehicle’s lack of visibility qualified as “good faith reports of a hazardous safety condition.”  Head also discusses three other actions that qualify as (b)(1)(A) protected activities: a written statement to a trainmaster regarding unsafe walking conditions on a bridge, Foster v BNSF Railway Company; a verbal complaint about smoke in the workplace, Jackson v. Union Pacific Railroad Company; and a locomotive engineer’s refusal to continue working with a conductor who had threatened him, Leiva v. Union Pacific Railroad Company. The refusal in Leiva qualified as a “report of a hazardous safety condition” because “the level of communication between an engineer and conductor is very important and essential to the safe operation of a train.”

The take away is: the scope of (b)(1)(A) is not limited just to the condition of railroad train cars or engines. Its plain language is broad, and embraces any human or non-human condition that threatens the safety of employees or the safe operations of trains. Here is the complete text of Head v. Norfolk Southern Railway Company. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

When the FRSA’s 180 Day Filing Window Opens (and Closes)

Posted in Federal Rail Safety Act

Filing a Federal Rail Safety Act whistleblower retaliation complaint with OSHA within 180 days of a railroad’s adverse action is a threshold issue that can derail the best of cases. So when does that 180 day window open?

The United States Supreme Court tells us:

a limitations period commences when the plaintiff has a “complete and present cause of action.” A cause of action does not become complete and present for limitations purposes until the plaintiff can file suit and obtain relief.

Green v. Brennan (2016).  OK, but that still begs the question, what exactly is the date a railroad worker “can file suit and obtain relief” under the FRSA? Especially given the extended disciplinary process on railroads.

In Dugger v. Union Pacific Railroad Company, the Administrative Review Board answers that question thus:

The limitations period begins to run from the time that the worker knows or reasonably should know that the challenged act has occurred. Thus, a railroad violates the FRSA on the date that it communicates to the employee its intent to take an adverse employment action, rather than the date on which the employee experiences the adverse consequences of the railroad’s action.
In FRSA whistleblower cases, the statute of limitation runs from the date an employee receives “final, definitive, and unequivocal notice” of an adverse employment decision. “Final” and “definitive” notice is a communication that is decisive or conclusive, leaving no further chance for action, discussion, or change. “Unequivocal” notice means a communication that is free of ambiguity or future possibilities.

Dugger involved a manager who received a termination letter explicitly disqualifying him from returning to work in any agreement craft. His attempt a month later to exercise his rights as a locomotive engineer was denied. When he filed a FRSA complaint within 180 days of that denial but more than 180 days from the termination letter, his complaint was dismissed as untimely.

The ARB rejected Dugger’s argument that because he did not have any damages until his bid to return as engineer was denied, the statute did not begin to run until then:

Given the public policy of the whistleblower laws, the issue of whether a complainant has sustained damages has never been a prerequisite to a finding of retaliation: the absence of a tangible injury goes only to remedy, not to whether the employer committed a violation of the law.

OK, so how does that play out in context of railroad whistleblower retaliation? Certainly a Notice imposing discipline after a trial is a concrete adverse action, as is the signing of a waiver to avoid more severe discipline.

However, what about the charge letter ordering the employee to attend the hearing? Or the hearing itself? Arguably they are not a “final” or “conclusive” adverse employment action, as  the pending charges still can be withdrawn or not proven. But best to avoid getting sidetracked into that argument. File the complaint with OSHA within 180 days of the initial charge letter, and amend the complaint as needed to incorporate any subsequent disciplinary actions.

So the take away is, don’t let the 180 day window slam shut on your rights. File your FRSA whistleblower retaliation complaint within 180 days of the railroad’s initial indication it intends to subject you to the disciplinary process. And if necessary, amend that complaint to include any post-hearing formal discipline.

Here is the complete text of Dugger v. Union Pacific Railroad Company. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

An $8 Million Whistleblower Settlement

Posted in False Claims Act fraud

I am pleased to announce a settlement totaling over $8 million dollars in a case brought by two whistleblower retaliation clients. Well may you ask: “Wait a minute, how do you leverage two individual employee whistleblower retaliation claims into a more than $8 million dollar settlement?” And the answer is: “Through the alchemy of the False Claims Act.”

My clients are pharmacists who were fired in October 2013 after insisting their employer comply with federal regulations governing the payment of drug prescriptions by Medicare. For more details on their case, see the U.S. Department of Justice’s Press Release and my Firm Press Release.

What transformed their individual retaliation claim into a multimillion dollar settlement was the involvement of federal monies, which made the False Claims Act applicable. The FCA is an extremely complex statute that when skillfully applied allows whistleblowers to add multimillion dollar premiums to their retaliation claims.

The purpose of the FCA is to punish the dishonest use of governmental monies and thus deter others from defrauding taxpayers. Examples of false claims include: falsely certifying a condition of payment; billing for services not done or that are unnecessary; over billing; billing for substandard service or goods; or failing to pay or refund monies owed to the government. There is a six year statute of limitations, so any false claims going back six years are fair game.

The FCA imposes triple damages and fines against the defrauding party, and entitles the whistleblower relator to receive a bounty of 15% to 30% of the total. However, FCA cases are fraught with hurdles and pitfalls. They can only be brought by an attorney on behalf of a whistleblower. Only the first relator to file can recover a bounty. The complaint must be filed under seal. And any public disclosure or breach of the seal can be fatal to a relator’s case.

Many FCA cases concern Medicare payments to health care providers or pharmaceutical companies. But defense contractors and any other businesses that directly or indirectly receive federal funds also are subject to a false claim action. One area that has not received the attention it deserves is transportation infrastructure projects.

Transportation infrastructure construction projects are subject to the False Claims Act because they depend on substantial federal and state funding. Such projects include the construction or renovation of tunnels, bridges, highways, stations, and ports, as well as publicly funded railroad capital improvements. For example, in the greater New York City area alone, a multitude of projects are underway at the MTA, Amtrak, Metro North Railroad, the Long Island Rail Road, PATH, and New Jersey Transit. The FCA applies to similar construction projects nationwide. Click here for a list of some of those projects.

So here is the message to all the managers and employees involved in such transportation construction projects: be on the look out for potential false claims. If you have concrete information showing the misuse of federal or state monies, do not go public until you contact an experienced FCA attorney to ensure you follow the special procedures of the FCA. Any discussion will be kept confidential, and any resulting FCA complaint will be filed under seal. You may receive a multimillion dollar bounty for protecting taxpayer dollars. Click here to learn more about the False Claims Act, so that when confronted with evidence taxpayer dollars are being lost to fraud or waste, you can do the right thing.

Two Recent FRSA Punitive Damages Decisions

Posted in Federal Rail Safety Act

Here are two recent federal court decisions affirming the amount of punitive damages awarded by the Administrative Review Board and by a district court jury.

In Jason Raye v. Pan Am Railways, the Administrative Law Judge awarded the statutory maximum of $250,000 in punitive damages despite the fact Jason Raye was not actually disciplined and lost no wages. The Administrative Review Board affirmed that decision, explaining that the employer’s misconduct need not be egregious or outrageous, only that it be in “reckless or callous disregard” of the employee’s rights.

The Railroad appealed to the Circuit Court, and the First Circuit Court of Appeals affirmed the ALJ, holding: “we conclude that the ALJ’s decision to award punitive damages of $250,000, to punish and deter what he perceived to be a culture of intimidating employees and discouraging them from engaging in protected activity, was within the realm of his discretion.”

The Circuit noted FRSA “punitive damages are warranted if a railroad:

  • acted with malice or ill will, or
  • with knowledge that its actions violated federal law, or
  • with reckless disregard or callous indifference to the risk that its actions violated federal law

As for the amount of the punitive damages, the Circuit Court confirmed the “ALJ was entitled, within wide limits, to decide how much weight to afford to each of the relevant facts, to assess the credibility of the witnesses, and to make the fact-sensitive and discretionary moral judgments” required.

In Timothy Dendy and Jason Polk v. National Railroad Passenger Corp., a federal court jury awarded each plaintiff $711.43 in back pay and $125,000 in punitive damages. Amtrak asked the district judge to set aside the jury’s punitive damage awards, arguing there was no evidence of Amtrak’s recklessness or callous indifference to the plaintiffs’ FRSA whistleblower protection rights.

The district judge rejected Amtrak’s argument, noting direct evidence a railroad knew it was violating an employee’s FRSA rights is not required. Rather, it is sufficient to produce circumstantial evidence of the railroad’s “knowledge that it may be acting in violation of federal law.” And it is the role of the jurors to issue a moral judgment on the railroad’s conduct via their punitive damages award:

Ultimately, an award of punitive damages is a discretionary moral judgment that the defendant has engaged in conduct that is so reprehensible that it warrants punishment. The Court will not second-guess the jury’s judgment.

Here is the full text of the Raye v. Pan Am and Dendy v. NRPC decisions. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.

Recent FRSA Circuit Court Decisions

Posted in Federal Rail Safety Act

The 8th Circuit has issued a spate of FRSA decisions falling outside the main stream of other Circuits. It is important to put them in perspective.

Araujo v. Kuduk: a distinction without a difference

Citing the Congressional Record and the leading whistleblower decision in Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993), the 3rd Circuit in Araujo explained why the contributing factor standard did not require a railroad employee to prove the manager taking the adverse action had a retaliatory motive. Araujo v. NJT Rail Operations, 708 F.3d 152 (3rd Cir 2013). The 8th Circuit is trying to draw a distinction between itself and the 3rd Circuit, but it is a distinction without a difference.

In Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir 2014), the 8th Circuit noted:

the FRSA knowledge requirement may be satisfied by circumstantial evidence the employer had actual or constructive knowledge of protected activity. . . . We agree . . . that, under the [FRSA] statute’s “contributing factor” causation standard, “[a] prima facie case does not require that the employee conclusively demonstrate the employer’s retaliatory motive.” . . . But the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.

The use of the phrase “intentional retaliation” is simply a maladroit way of saying the managers who took the adverse action must have had some knowledge of the employee’s protected activity. Which has always been the case. Knowledge of the protected activity = intentional retaliation. The more accurate phrasing actually is: “intentional retaliation prompted by some knowledge of the employee’s protected activity.” If the supervisors taking the adverse action had no knowledge of the employee’s protected activity, then the  contributing factor element is not satisfied. But that is nothing new or different. The 8th Circuit’s “intentional retaliation” comment is a distinction without a difference.

In Kuduk the 8th Circuit also took a gratuitous swipe at the 3rd Circuit’s Araujo decision by footnoting the following dicta:

In our view, the Araujo panel may have improperly relied on Marano . . . for its no-need-to-show-motive conclusions because the court in Marano was construing a federal employee whistleblower statute that required only an ultimate showing of causation in fact (‘because of’), not discrimination.

But that dicta is simply wrong. In fact Marano interpreted and applied the “contributing factor” burden of proof standard, which is the very same standard cited in AIR-21 and incorporated by reference into FRSA Section 20109. The Administrative Review Board has stated many times that the “contributing factor” standard is the standard elucidated in Marano, see e.g., Palmer v. Canadian National Railway, ARB No. 16-035,  ALJ No. 2014-FRS-154 (ARB Sept. 30, 2016), as have other Circuits, see e.g., Halliburton v. Administrative Review Board, 771 F.3d 254 (5th Cir. 2014).

The 8th Circuit continues to cite Kuduk’s erroneous dicta. Blackorby v. BNSF Ry. Co., 849 F.3d 716 (8th Cir. 2017), and Heim v. BNSF Ry. Co., 849 F.3d 723 (8th Cir. 2017). But that is no reason for other courts to do so. Anytime a railroad cites Kuduk, make sure the court understands the phrase “intentional retaliation” is simply drawing a distinction without a difference.

Laches Dicta

To prevail on a common law defense of laches, a defendant must prove the plaintiff unreasonably and inexcusably delayed filing the lawsuit, resulting in actual prejudice to the defendant. In pure dicta, and without benefit of any briefing or argument, two members of an 8th Circuit panel recently engaged in sua sponte speculation about the applicability of the common law principle of laches to Section 20109 cases. Gunderson v. BNSF Ry. Co., 2017 U.S. App. LEXIS 4258 (8th Cir. 2017). While such uninformed speculation has no precedential effect, in deciding when to opt out of the DOL and file a FRSA complaint in federal district court, attorneys representing FRSA clients should be mindful of the laches principle.

Scope of Hazardous Safety Conditions

In its PATH (Bala) decision, the 3rd Circuit commented in dicta that subsection (b)(1)(A)’s phrase “hazardous safety condition” is limited to conditions related to railroad work:  “we think that subsection (b)(1)(A) must be read as having at least some work-related limitation.” The 3rd Circuit did NOT say (b)(1)(A) is limited to work-related injury conditions. On the contrary, the Circuit Court was pointing out subsection (b)(1)(A) protects the reporting of any hazardous condition that is related to an employee’s railroad work. However, the district court in Murdock v. CSX Transp. Inc., 2017 U.S. Dist. LEXIS 46835 (N.D. Ohio 2017), entirely missed that point, erroneously merging (b)(1)(A)’s reporting of a hazardous condition with a (b)(2)(B) refusal to work. The 3rd Circuit’s PATH decision did no such thing.

For more information on the FRSA Section 20109 whistleblower statute, go to the free Rail Whistleblower Library.