Several weeks ago, I posted the summary of case decided by Judge Theresa C. Timlin of the U.S. Deparment of Labor that discussed the idea that an absence
from work for a non-work related medical resaons is a protected activity under the FRSA. Last fall, she issued a decision in another Whistleblower
case that illustrates the elements necessary for a successful claim. The decision is also important because it indicated that the FRSA can be violated
even when disciplinary charges are dismissed.
On September 23, 2011, Judge Timlin, after a two day evidentiary hearing, issued an Order directing the Port Authority Trans-Hudson Corporation (“PATH”)
to pay a Railroader punitive damages and expunge from her personnel file any disciplinary and negative references concerning an on-the-job injury that
was properly reported.
First, a little bit about the facts leading up to Judge Timlin’s involvement in the case. On April 1, 2009, the aggrieved Railroader was injured when she
sat on a broken chair that collapsed. She filed an injury report right after the accident occurred. Shortly thereafter, the Railroad issued a letter
notifying her that she was required to attend an investigative hearing to determine whether she had engaged in a rules violation for failing to inspect
the chair prior to sitting on it. The investigative hearing was postponed and rescheduled several times. The charges against the Railroader were eventually
Judge Timlin determined that the Railroad had violated the following elements of the Whistleblower Act. Each of these elements must be proven to recover
under the Law.
Judge Timlin determined that the Railroader had engaged in protected activity by filing the injury report. She indicated that “[T]hese reports are clearly
methods by which an employee may notify an employer of a work-related personal injury or work related illness.” Judge Timlin also concluded that the
Railroader, had in fact, sustained a personal injury.
Knowledge of Protected Activity
Judge Timlin indicated in her decision that a “decision-maker” who carries out the adverse action on behalf of the Railroad must be aware of the protected
activity. It is no enough for the Railroad, as an entity, to know of the protected activity. This element was fulfilled as there was evidence that
the Railroader’s supervisor, who brought the charges against her, was aware that the injury report was filed shortly after the accident.
Unfavorable Personnel Action
Judge Timlin determined that the Railroad had taken unfavorable personnel action against the Railroader despite the fact that the charges filed against
her were ultimately dismissed. She indicated that the filing of such charges, and then dismissing them, “is likely to have a chilling effect on reasonable
employees, who may be dissuaded from filing injury reports for fear of being charged with safety violations and being potentially disciplined.”
The Act requires that the protected activity must be a contributing factor to the unfavorable personnel action. Judge Timlin determined that the Railroader’s
supervisor filed the charges against her because of “information provided in or lacking from the injury report.”
Judge Timlin summed up her decision that the Railroader had fulfilled the elements of her claim as follows: “Rather than investigating the matter first
and filing charges only when a violation was substantiated, Respondent chose to file charges based on the information contained in the injury report.
On the specific facts of this case, I find a clear causal connection between the filing of the Complainant’s injury report and the initiation of charges
By Matt Darby