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.

The FRSA is a “make whole remedy” statute, so the question arises: can OSHA force a recalcitrant railroad to train its managers so they comply with the statute going forward? The short answer is: yes, when the facts call for it. The long answer is found in Administrative Law Judge Timothy J. McGrath’s decision in Giuliano v. CSX Transportation, Inc.

Continue Reading Can OSHA Order the Training of Managers?

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.

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.

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.

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.

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.

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.