On the Right Track: Railroad Whistleblowers Came Out on Top in 2015

February 4, 2016

Employees, contractors and subcontractors who report or oppose railroad safety concerns and/or the fraudulent use of federal grants or funds designated for railroad safety or security are protected from employer retaliation by the Federal Rail Safety Act (FRSA). The FRSA also protects railroad employees from retaliation for reporting workplace injuries. Railroad whistleblowers who believe they have been illegally retaliated against may file a complaint with the Occupational Safety and Health Administration (OSHA). Regardless of the outcome of that complaint, the FRSA whistleblower may eventually find his or her case in front of the Administrative Review Board (ARB), the home of the final appellate review within the Labor Department.

In 2015, the ARB fielded numerous complaints brought by employees who blew the whistle on the railroad industry. This article will summarize and review the takeaways of important FRSA decisions the ARB issued in 2015. We’ll also build on last year’s development to take a look forward at what we can expect in 2016.

ARB Overturns FRSA Punitive Damages Award

Jackson v. Union Pacific Railroad Co. involves a claim brought by Michael Jackson, a switchman/brakeman at Union Pacific Railroad Co.’s freight yard. He alleged that the railroad suspended him for reporting a foul smell from nearby marsh fires, a condition he considered to be hazardous to workplace safety. Though the supervisor confirmed that the fire department had issued no health advisories, Mr. Jackson requested a work area free from smoke due to health concerns. His supervisor directed him to go home and return to work after obtaining a medical release. The administrative law judge (ALJ) who heard the case held that this constituted adverse action connected to Mr. Jackson’s protected activity and awarded Mr. Jackson $1,500 in combined compensatory and punitive damages.   Based on its determination that the supervisor incorrectly believed that Mr. Jackson was reporting a personal health concern rather than a workplace safety concern, the ARB found that Union Pacific did not recklessly or callously disregard Mr. Jackson’s legal rights, a requisite for any punitive damages.  Therefore, the ARB overturned the ALJ’s award of $1,000 in punitive damages.

ARB Sides with Whistleblower After Employer Makes Unsubstantiated Claim about Termination

Powers v. Union Pacific Railroad Co. involves a claim brought by Robert Powers, a rail worker for Union Pacific Railroad. He alleged that he was terminated in retaliation for reporting a hand injury he suffered while operating a rail saw. OSHA ordered reinstatement, back pay and other relief, but the ALJ dismissed the complaint. The ARB determined that Mr. Powers engaged in protected activity when he reported his injury—and his doctor’s subsequent work restrictions—to his supervisor.

As explained in the ARB’s decision, Union Pacific had hired a private investigator to record video surveillance showing whether Mr. Powers was refraining from repetitive motion and lifting heavy objects, as recommended by his doctor. According to the company, it determined that Mr. Powers was flouting these instructions and terminated him on the basis that he had violated the company’s dishonesty provision. The ARB, however, found that the evidence did not support the company’s claim (as it could not be proved that Mr. Powers’ home activities did not comply with his doctor’s treatment plan) and that Mr. Powers’ protected activity contributed to his termination. The ARB remanded the case to the ALJ to determine if the company would have terminated him if Mr. Powers had not reported his injury.

The ARB thus made clear that a company’s unsubstantiated claim that some unrelated activity led to the employee’s termination would not adequately rebut evidence that an employee’s protected activity contributed to the adverse action taken against him.

ARB Confirms that FRSA Punitive Damages Do Not Require an “Illegal Motive”

In Leiva v. Union Pacific Railroad Co. Inc., Daniel Leiva, a locomotive engineer with Union Pacific Railroad Company Inc., alleged that his employer suspended him, terminated his employment and then reinstated him with probation in violation of the FRSA retaliation provision.

According to the complaint, after an altercation in which another conductor threatened him, Mr. Leiva raised concerns that this affected workplace safety and requested that he be allowed to fill out a report prior to continuing work with the offender. As the ARB held, reporting workplace violence constituted protected activity under the FRSA where the complainant demonstrated that:

  1. workplace violence is a violation of Union Pacific rules; and
  2. he had been taught that following Union Pacific rules would keep him compliant with federal regulations.

The Board also upheld the ALJ’s determination that Mr. Leiva’s reporting constituted a report of a “hazardous safety or security condition” because he felt threatened by his assailant. This decision confirmed that the FRSA does not require an “illegal motive” to justify a punitive damages award and held that the size of a punitive award “is fundamentally a fact-based determination.”

Employer Pays Up for Reclassifying Injury as “Non-Occupational”,

In Santiago v. Metro-North Commuter Railroad Co. Inc., Anthony Santiago, an employee with Metro-North Commuter Railroad Co., brought a claim alleging that the company violated the FRSA when it retaliated against him for reporting workplace safety threats. The ARB affirmed an ALJ decision awarding Mr. Santiago compensatory and punitive damages, finding that Metro-North violated the FRSA when it reclassified his back injury as non-occupational and ceased paying for medical treatment.

The ARB first held that Mr. Santiago engaged in protected activity when he reported threats made against him by a coworker because it created a “hazardous safety and security condition.” The Board also upheld the ALJ’s decision finding that Metro-North’s reclassification, which interfered with Mr. Santiago’s medical treatment, constituted an adverse employment action. The ARB further held that Metro-North did not prove its affirmative defense that the reclassification would have occurred “without the railroad carrier’s interference.”

For more information on this decision, read our blog on the topic.

Employers Can Lawfully Prevent Workers from Returning Over “Legitimate Fitness Concern”

In LeDure v. BNSF Railway Co., Kenneth LeDure, a conductor with BNSF Railway Co., alleged that the company violated the FRSA by not allowing him to return to his duties even after his physician released him to work after a spine injury. The ALJ dismissed his complaint for failure to prove that BNSF discriminated against him, and the ARB affirmed the ALJ’s determination.

The Board explained that the decision to disallow Mr. LeDure to return to work fell on one “lone decision-maker,” who considered the release to be ambiguous and concerning.  As such, it is not clear that the refusal was retaliatory in nature. As the Board notes, “the provision [of the FRSA that exempts some unfavorable employment actions] literally exempts fitness for duty situations from coverage.” Importantly, if an employer can prove that an adverse action stems not from retaliating in response to protected activity but from a legitimate fitness concern, a company can lawfully prevent a return to work.

ARB Says Employer Must Prove Decision to Terminate Was Legitimate and Non-Pretextual

In Coates v. Grand Trunk Western Railroad Co., Dennis Coates filed a FRSA complaint against his employer, Grand Truck Western Railroad Co., alleging that he was terminated in retaliation for filing a prior FRSA complaint and a work-related accident and injury complaint regarding his heart condition. The ALJ found in his favor and awarded damages, costs and other relief in two orders. The company argued that Mr. Coates had failed to demonstrate that its reasons for terminating him were pretextual.

The ARB rejected this argument and affirmed the ALJ’s ruling, noting that Mr. Coates needed to only prove that his protected activity contributed to the adverse action taken against him. The burden then shifted to Grand Trunk to prove by clear and convincing evidence that it had actually terminated Mr. Coates for legitimate, non-pretextual reasons, which—according to the ARB and the ALJ—it had failed to do so.

ARB Sides with Railroad Worker after Protected Activity Influences Adverse Action

DeFrancesco v. Union Railroad Co. involves a claim brought by Union Railroad worker Kenneth DeFrancesco, who alleged that he was suspended by the company in retaliation for reporting his slip-and-fall incident, which resulted in a back injury. Union Railroad asserted that its subsequent investigation had revealed that Mr. DeFrancesco had engaged in “unsafe conduct” that precipitated the fall. After initially dismissing the case and having that dismissal reversed by the ARB, the ALJ ruled in favor of DeFrancesco, finding that the company had failed to establish its affirmative defense because the investigation into his “unsafe conduct” would not have occurred had Mr. DeFrancesco not reported the incident.

The ARB affirmed the ALJ’s ruling, finding that Union Railroad could not prove that it would have disciplined Mr. DeFrancesco if he had not first engaged in protected activity. Because Union Railroad learned of Mr. DeFrancesco’s alleged unsafe behavior through an investigation that only came about via protected activity (the injury report), it was not possible for it to establish that Mr. DeFrancesco’s protected activity was not a contributing factor in its decision to suspend him. The ARB noted that “the complainant need establish only that the protected activity affected in any way the adverse action taken.”

ARB Sides with Suspended Worker Who Reported Supervisor

Seay v. Norfolk Southern Railway Co. involves a claim brought by Reggie Seay, a railway track inspector for Norfolk Southern Railway Company. He alleged that the company violated the FRSA when it subjected him to disciplinary action without a preliminary investigative hearing, as per union rules, for his involvement in a hi-rail vehicle going out of bounds. The company then pressured Mr. Seay to sign a waiver that offered him a 25-day suspension and forfeiture of seniority after Mr. Seay testified at the investigative hearing, an increase from the original 15-day suspension that did not affect his seniority.

The ARB held that Mr. Seay engaged in protected activity when he notified the company that his supervisor had driven the vehicle past its limits, regardless of the fact that Mr. Seay was in the backseat of the vehicle at the time. The ARB also directed the ALJ to hold an evidentiary hearing to address whether or not Mr. Seay was coerced into signing the waiver. Thus, the ARB reversed the ALJ’s determination that the protected activity did not contribute to the suspension and remanded the case for further consideration.

ARB Sides Against Employer that Lowered Whistleblower’s Performance Rating

In Fricka v. National Railroad Passenger Corp., Michael Fricka, an Amtrak foreman with National Railroad Passenger Corp., was injured while taking a company-approved motorcycle trip to a job site. He subsequently received a lower-than-expected performance review, removing his ability to receive a bonus.

The ARB affirmed the ALJ’s finding that the injury was work related—and therefore that reporting the injury constituted protected activity under the FRSA—but reversed the ALJ’s finding that Amtrak had not taken an adverse action against Mr. Fricka. The Board found that the following constituted adverse personnel actions:

  1. Amtrak’s classification of Mr. Fricka’s injury as non-work related and subsequent refusal to pay Fricka’s medical bills; and
  2. lowering of Fricka’s performance rating from 2.11 (“competent”) to 1.43 (“needs development”), thus removing his ability to receive a bonus.

Looking Forward

The outcomes for railroad whistleblower retaliation cases were largely pro-employee in 2015, which bodes well for the prospects for railroad whistleblowers in 2016. Multiple ARB FRSA decisions over the last year stressed the Board’s commitment to workplace safety and employee well-being, as such concerns are crucial to ensuring the health and safety of all commuters. More broadly, the ARB has consistently interpreted the whistleblower protection statutes enforced by the Labor Department, including the FRSA, in such a way that they are actually able to provide the broad protections for which they were intended. Those protections are critical because they allow courageous railroad employees and the public at large to ride a little easier.

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