Employment Law Daily BNSF violated railroad safety act by firing employee who reported on-the-job injuries
Wednesday, March 9, 2016

BNSF violated railroad safety act by firing employee who reported on-the-job injuries

By Dave Strausfeld, J.D. By firing an employee who had reported injuries suffered in an on-the-job vehicle accident, a railroad company violated the Federal Railroad Safety Act, which prohibits retaliation against an employee for reporting an on-the-job injury, held the Tenth Circuit, on a petition for review of a DOL order. The court denied the railroad’s petition in relevant part, but remanded the case to the agency for further consideration of the punitive-damages award (BNSF Railway Co. v. U.S. Department of Labor, Administrative Review Board, March 7, 2016, Phillips, G.). Pickup truck accident. In January 2010, a railroad employee with a history of lung, chest, and respiratory problems was driving a company-owned pickup truck from one railroad yard to another when he rear-ended another truck, totaling his own vehicle. Several months later, in April 2010, his doctor informed him that the collision had caused certain serious chest and lung injuries, including a collapsed lung, so he filed an updated injury report. His supervisors discouraged him from filing the update, he said, because it would make them look bad by requiring them to submit an accident report to the Federal Railroad Administration, but he filed his updated injury report anyway. Two months later, the railroad terminated his employment on grounds he had not filed his injury report in a timely manner. Federal Railroad Safety Act. Under the FRSA, a railroad may not retaliate against an employee for notifying or attempting to notify the railroad about an on-the-job injury or medical treatment for that injury. To establish a prima facie case, an employee must show that his or her protected activity was a “contributing factor” in the unfavorable personnel action. Upon such a showing, the burden switches to the employer to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action even in the absence of the employee’s protected activity. Contributing-factor analysis has wrinkle. The first question, then, was whether the employee had made out a prima facie case. The FRSA’s contributing-factor standard is “broad and forgiving,” the court pointed out, and the employee here could meet it by simply showing that his injury update tended “to affect in any way” the railroad’s decision to terminate him. Ordinarily, this would be easy for him to show, but there was a wrinkle here: The railroad said it fired him for misconduct revealedby his updated injury report, i.e., his delay in reporting his injuries. “Fortunately for” the employee, the court commented, he was able to offer additional evidence of retaliatory intent. His most important evidence was that his supervisors discouraged him from filing the injury update, with one supervisor even ominously telling him “this is not going to go well for [you]” (an ALJ found the employee’s account credible). Based on this evidence, the DOL did not err in finding that his protected activity was a contributing factor in the railroad’s decision to fire him, the court concluded. Railroad’s chance to rebut. Now the railroad had the burden of presenting clear and convincing evidence that it would have fired him in any event. It could not make this showing, the court reasoned, given his supervisors’ threats. What would have happened if he had listened to his supervisors and not filed his injury update? Presumably things would have gone better for him and he would not have been fired. Thus, the railroad could not show it would have fired him in any event. For this and other reasons, the DOL’s ruling in favor of the employee on his FRSA retaliation claim was supported by substantial evidence, the court held. Punitive damages. With regard to punitive damages, the DOL Administrative Review Board had not adequately explained why it reduced the ALJ’s punitive-damages award by half, from $250,000 to $125,000. The Board said that half of the ALJ’s reasoning on the punitive-damages issue was wrong, and so it halved the award. “We conclude that the Board acted arbitrarily and capriciously when it halved the punitive-damages award simply because it concluded that the ALJ had erred in half of his analysis.” On remand, the Board should provide a “reasoned explanation for the punitive damages it awards” and then evaluate that award using the due-process guideposts in the Supreme Court’s State Farm decision, the court held.

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