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Railroad Injury Blog

OSHA Decision Determines That A Firing In Retaliation For Filing A Whistleblower Claim Is A Serious Violation Of The FRSA

Sunday, April 29, 2012

On March 26, 2012, the Occupational Safety and Health Administration (OSHA) issued a decision in a Whistleblower case that requires CSX Transportation to pay punitive damages for dismissing a Railroader for filing a claim under the FRSA that alleged that he had been disciplined for raising various safety issues.

The case involved a dispatcher who was involved in a near miss incident that involved the misrouting of two trains. After the incident, the dispatcher cooperated in a meeting that involved CSXT and the FRA. During that meeting, the dispatcher raised various safety issues that he felt contributed to the near miss incident. The dispatcher was subsequently fired by CSXT. He then, with the approval of CSXT, exercised his seniority rights so that he could return to his previous craft within the Track Department. On his first day back to work as a trackman, he was fired. This was one day after CSXT received notification that he had filed a claim under the FRSA for his dismissal in connection with the near miss incident and its subsequent investigation.

CSXT was ordered to pay punitive damages in the amount of $100,000.00 for its dismissal of the Railroader. The OSHA opinion regarding that award indicated as follows:

“Respondent’s (CSXT) conduct in retaliation against an employee for filing a FRSA complaint with OSHA exhibited reckless disregard for the law and complete indifference to Complainant’s rights and the rights of Respondent’s other employees. Discharging an employee for claiming violations of FRSA functions to chill employees from exercising their most basic rights under FRSA.”

By Matt Darby

Whistleblower Decision Illustrates Elements Necessary For A Successful Claim

Friday, March 30, 2012

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 dismissed.

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.

Protected Activity

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.”

Contributing Factor

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 against her.”

By Matt Darby

Recent Whistleblower Decision Determines That Absence For Non-Work Related Medical Reasons Is A Protected Activity Under The FRSA

Friday, March 09, 2012

On February 10, 2012, Administrative Law Judge, Theresa C. Timlin, of the U.S. Department of Labor, issued an Order directing the Port Authority Trans-Hudson Corporation (PATH) to pay a Railroader back pay for a suspension imposed because he was absent from work pursuant to orders from his treating doctor for a non-work related injury.

First, a little bit about the facts leading up to Judge Timlin’s involvement in the case.

On June 22, 2008, the aggrieved Railroader sustained a low back injury while he was lifting boxes at his home. The next morning, he was evaluated by his family doctor and taken off work for a week. The Railroader immediately told his supervisor of his doctor’s orders. The Railroad then referred the Railroader to its own doctor who concurred with the opinion of the Railroader’s doctor regarding his inability to work. The Railroader informed his supervisor that the Railroad’s own physician determined that he was unable to work. The Railroader was issued a disciplinary charge letter for violating the Railroad’s attendance policy. After a hearing, the charges were affirmed and the Railroader was suspended for three days.

While it is undisputed that the Federal Rail Safety Act (FRSA) prohibits the discipline of railroad employees for following the orders or a treatment plans of a treating physician for work related injuries, Judge Timlin indicated that this protection goes further and stated as follows:

“After reviewing the Act’s text and purpose, I find it clear that § 20109(c)(2) exists not only to encourage employees suffering on-the-job injuries to report unsafe conditions to their superiors without fear of reprisal, but also to discourage sick or injured workers from returning to duty while their impairment poses a threat to the safety or railroad passengers and fellow employees. I thus find that § 20109(c)(2) applies equally to treatment plans arising out of on-duty and off-duty injuries.”

In sum, while it has always been the case that a railroad violates the FRSA if it disciplines an employee for following a doctor’s orders concerning a job-related injury, it is now clear that such protection covers non-work related injuries as well.

By Matt Darby

Recent Whistleblower Decisions

Friday, January 20, 2012

The following are significant decisions that were recently issued by the U.S. Department of Labor pursuant to the Federal Railroad Safety Act (FRSA), 49 U.S.C. §20109.

  1. On August 22, 2011, the Department of Labor issued an Order directing the Union Pacific Railroad Company to pay back wages in the amount of $3,437.10, punitive damages in the amount of $150,000.00 and compensatory damages for pain and suffering in the amount of $10,000.00 to a  railroader who alleged and proved that he was pulled out of service, charged with rule violations and permanently dismissed from service in retaliation for reporting safety concerns on the Railroad’s safety hotline. The Railroad was also ordered to reinstate the railroader to his former position with all the pay, benefits, and rights he had before his discharge.
  2. On August 15, 2011, the Department of Labor directed the Burlington Northern and Santa Fe Railway Company to pay compensatory damages in the amount of $125,000.00 and punitive damages in the $150,000.00 to a railroader who alleged and proved that she had been suspended for 30 days without pay in retaliation for notifying the Railroad of a work-related personal injury. She also alleged and proved that the Railroad brought charges against her in a disciplinary proceeding in retaliation for requesting medical and/or first aid treatment and for following the orders and the treatment plan of her treating physician.
  3. On August 8, 2011, the Department of Labor issued an Order directing Norfolk Southern Railway Company to pay compensatory damages in the amount of $20,750.11 and punitive damages in the amount of $75,000.00 to a railroader who alleged and proved that he had been suspended in retaliation for reporting a workplace injury. 
  4. On August 5, 2011, the Department of Labor directed the Metro-North Commuter Railroad Company to pay compensatory damages in the amount of $5,000.00 and punitive damages in the amount of $125,000.00 to a railroader who alleged and proved that he suffered retaliation when he reported a workplace injury. The Railroad was also ordered to pay the railroader back pay and promote him to the position of Locomotive Engineer.

By Matt Darby

Federal Whistleblower Protection For Injured Railroaders

Monday, January 16, 2012

Railroad employees have long recognized that their employers have a well established culture of harassment and intimidation with regard to the reporting of work related injuries. As a result of this harassment, it is a violation of Federal Law for a railroad to: “discharge, discriminate, demote, suspend, reprimand, or in any way discriminate, in whole or in part, against an employee that notifies or attempts to notify the railroad of a work related personal injury or illness.” 49U.S.C. 20109(a)(4). If the railroad violates any of these rights, the employee has the right to file a complaint with the Occupational Safety and Health Administration. If successful, the employee is entitled to reinstatement, back pay with interest, attorneys fees and potential punitive damages up to $250,000.00.

Link to the OSHA Whistleblower Factsheet here.

By Matt Darby

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