Another Circuit Court has corrected the 8th Circuit’s misuse of the term “intentional retaliation” in FRSA litigation. In Frost v. BNSF Railway Company, the 9th Circuit soundly rejects the suggestion in Kuduk v. BNSF that Section 20109 requires proof of discriminatory animus separate from a showing that the employee’s protected activity was a contributing factor to the adverse action:

What BNSF misses is that the only proof of discriminatory intent that a plaintiff is required to show is that his or her protected activity was a “contributing factor” in the resulting adverse employment action. Showing that an employer acted in retaliation for protected activity is the required showing of intentional discrimination; there is no requirement that FRSA plaintiffs separately prove discriminatory intent. . . .

by proving that an employee’s protected activity contributed in some way to the employer’s adverse conduct, the FRSA plaintiff has proven that the employer acted with some level of retaliatory intent. . .

we hold that although the FRSA’s prohibition on “discriminating against an employee” ultimately requires a showing of the employer’s discriminatory or retaliatory intent, FRSA plaintiffs satisfy that burden by proving that their protected activity was a contributing factor to the adverse employment decision. There is no requirement, at either the prima facie stage or the substantive stage, that a plaintiff make any additional showing of discriminatory intent.

Well said. With its Frost v BNSF decision, the 9th Circuit joins the Administrative Review Board along with the 3rd, 5th, 7th, and Federal Circuits in rejecting Kuduk’s distortion of Section 20109. For more on the FRSA, go to the free Rail Whistleblower Library.

 

The data is in. Since FY 2014, the number of OSHA whistleblower investigators shrunk by 25% while the number of complaints ballooned by 30%. In FY 2018 alone, 1,137 private statutory retaliation complaints were filed, the majority by railroad workers under the Federal Rail Safety Act, followed by long-haul truckers under the STAA. Of all the cases resolved in 2018, three quarters were dismissed or withdrawn. In 2018, 60 cases opted out of OSHA into federal court.

For a fuller snapshot of OSHA’s whistleblower retaliation complaints data, including pie charts, click on this link  For more on the whistleblower rights of workers on railroads and elsewhere, go to the free Rail Whistleblower Library.

The Administrative Review Board provides further proof of the erroneous use of the phrase “intentional retaliation” in the 8th Circuit’s Kuduk decision. In Riley v. Dakota, Minnesota & Eastern Railroad, the ARB spells out why “intentional retaliation” simply does not apply to the FRSA’s contributing factor standard:

Continue Reading Further Correcting Kuduk’s Mischief

When a BNSF employee reports an on-the-job injury, the Railroad orders the employee to disclose medical information to a medical case manager. But when an employee reports a non-work related injury, the Railroad leaves them alone. BNSF employee Travis Klinger reported a work injury and was ordered to contact such a medical manager. When he declined to do so, he was suspended for “failure to comply with a direct order.” The Administrative Law Judge reversed that discipline and ordered BNSF to pay $100,000 in punitive damages. Klinger v. BNSF Railway.

Continue Reading When Failing to Comply With a Direct Order Is OK

The Federal Rail Safety Act is a “make whole remedy” statute, and a federal judge has clarified some important points regarding the range of remedies available to railroad employees who report injuries or safety hazards.

O’Neal v. Norfolk Southern Railroad Company concerned an employee who fell from a chair because the seat was not properly bolted to the frame. After he reported both the injury and the hazardous safety condition, the Railroad accused him of lying about it and fired him. The  jury found the Railroad violated the FRSA and awarded O’Neal back pay, emotional distress damages, and punitive damages.

Continue Reading FRSA Remedies and Attorney Fees

What Is A “Good Faith” Refusal?

Under subsection (a)(2) of the Federal Rail Safety Act, it is protected activity for an employee “to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety.” Now comes a Circuit Court decision clarifying what qualifies as “a refusal” to violate a FRA safety regulation.

Continue Reading More on FRSA “Good Faith” and “Intentional Retaliation”

A $1.15 Million SPA Whistleblower Settlement

It took four long years, but a full measure of justice has come to my client Captain John Loftus. John was the Captain of a 850 foot long container ship who took safety seriously. After his employer ignored his internal reports of unsafe conditions, John went outside to the American Bureau of Shipping and Coast Guard, who forced Horizon Lines to correct the conditions. Horizon then found a pretext to fire John from his Master position. Both the Administrative Law trial Judge and the Administrative Review Board appeals judges ruled in his favor, ordering over $1.15 million in back pay, emotional distress, punitive damages, attorney’s fees and costs. John refused to compromise, ultimately forcing the Company to pay the full $1.15 million, with no confidentiality. So hats off  to John for insisting on clearing his reputation while being made whole.

Continue Reading Recent Seaman Protection Act Whistleblower Developments

What is Adverse Action?

The question arises, in order to qualify as an “adverse action” under the Federal Rail Safety Act, does a railroad’s investigation into an employee’s actions have to result in actual discipline? What if the charge is eventually dropped? No harm no foul? A recent district court decision clarifies the matter:

Continue Reading Some Recent FRSA Developments

While railroaders and truckers generate the most cases, seamen and merchant mariners also are protected from retaliation when they blow the whistle on safety issues. The Seaman’s Protection Act prohibits retaliation against any seaman who reports a work related injury or who reports to the U.S. Coast Guard or American Bureau of Shipping “that a violation of a maritime safety law or regulation has occurred.” In 2013 Captain John Loftus brought a landmark SPA case against Horizon Lines and Matson Alaska when they fired him after he reported numerous safety violations to the USCG and ABS.

Continue Reading ARB Affirms $1 Million Seaman’s Protection Case

Federal Rail Safety Act subsection (c)(1) prohibits railroads from denying, delaying, or interfering with the medical treatment of employees “injured during the course of employment.” In a fact driven decision, the Second Circuit Court of Appeals sidesteps deciding the temporal scope of that protection (just first aid or entire course of treatment?) and its interpretative standard (can a railroad’s denial of a medical claim payment constitute interference?). Instead, the Court merely commented: “We suggest that the Administrative Review Board might reexamine and further explicate its reasoning regarding Section 20109(c)’s interpretation in the future.” Metro North Commuter Railroad Company v. United States Department of Labor (previously captioned as Anthony Santiago v. Metro North Railroad).

In the Metro North case, the Railroad’s Medical Department contractor refused to approve payment for a treatment procedure based on its view that Santiago’s occupational injury had resolved. Given a lack of evidence showing the Railroad’s direct involvement in that determination, the Circuit Court found there was not enough proof the Railroad improperly influenced the contractor’s action. So the Circuit’s decision is limited to that narrow set of facts, and obviously does not apply to actions taken directly by a railroad’s own supervisors or by its own medical department.

The take away? The resolution of subsection (c)(1)’s scope and standard must wait another day. For more on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.