The 8th Circuit Court of Appeals confirms that a railroad can violate the FRSA even if it honestly believes an employee violated a rule. In Blackorby II, the employee was disciplined for violating BNSF’s rule requiring the “immediate” reporting of work-related injuries. But reporting a work-related injury is protected activity under FRSA Section 20109, and
railroad injury retaliation
Another Circuit Court Corrects Kuduk’s Distortion
By Charlie Goetsch on
Posted in Federal Rail Safety Act
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…
When Failing to Comply With a Direct Order Is OK
By Charlie Goetsch on
Posted in Federal Rail Safety Act
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
More on FRSA “Good Faith” and “Intentional Retaliation”
By Charlie Goetsch on
Posted in Federal Rail Safety Act
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”
Another Circuit Court Shoots Down “Election of Remedies” Defense
By Charlie Goetsch on
Posted in Federal Rail Safety Act
In a resounding decision, the 4th Circuit Court of Appeals explains why a rail worker’s pursuit of a racial or sexual discrimination claim does not constitute an “election of remedies” barring that worker from pressing a Federal Rail Safety Act Section 20109 whistleblower retaliation claim.
In Lee v. Norfolk Southern Railway Company, carman Charles…
When Context Is Everything
By Charlie Goetsch on
Posted in Federal Rail Safety Act
When does a sentence not mean what it seems to say? When it is quoted out of context. And that is certainly the case with one sentence in the 8th Circuit’s Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014), decision railroad attorneys love to rip out of context and wave at…
FRSA District Court Decisions Update
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The trickle of federal district court FRSA decisions has turned into a steady stream. To keep up, here is a listing of recent district court opinions interpreting Section 20109 of the Federal Rail Safety Act, with a summary of their significance.
Temporal proximity
Myles v. Northeast Ill. Reg’l Commuter Rail Corp., 2015 U.S.…
Administrative Review Board Clarifies FRSA Burdens of Proof
By Charlie Goetsch on
Posted in Federal Rail Safety Act
In a rare en banc decision, the U.S. Department of Labor’s Administrative Review Board explains why the Federal Rail Safety Act’s distinct two step burden of proof process must never be merged into one. Powers v. Union Pacific Railroad Company also is significant for reminding us that the subjective evaluations of railroad managers carry virtually…
The Long And The Short Of FRSA OSHA Complaints
By Charlie Goetsch on
Posted in Federal Rail Safety Act
There now are two formats for filing a Federal Rail Safety Act whistleblower retaliation complaint with OSHA: short form and long form.
On Line Short Form
OSHA recently gave workers the option to file a whistleblower complaint on line, using the form available at OSHA’s web site. This may be a good option for a worker…
FRSA Federal Court Jurisdiction Clarified
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The latest Federal Rail Safety Act district court decision confirms that the statutory jurisdiction of the federal courts over railroad whistleblower cases can not be limited by DOL regulations or actions.
After trackmen Donald Glista and William Orr reported injuries, Norfolk Southern Railway fired them for "conduct unbecoming" and for making "false and conflicting statements." For that blatant…