My colleague Charlie Goetsch just reported about two railroad whistleblower cases in his Train Law Blog. With his permission, I am reposting his reports here. You can subscribe here to the Train Law Blog.
An “Intervening Event” Is Not A FRSA Defense
Railroads often argue that the firing of an employee was based on an “intervening event” that breaks the causal connection between the FRSA protected activity and the adverse action. The BNSF Railroad terminated conductor Peter Peterson after he reported an injury, and raised that defense to his FRSA complaint. The resulting ALJ decision explains why the “intervening event” defense does not apply to FRSA retaliation cases:
An act that “is part and parcel of the chain of events from injury to termination” is not an intervening event. Any act that is “at least incidental to” a protected activity is not an intervening event. And even an event that is totally unrelated to an injury report is not a defense: “an intervening event does not necessarily sever the connection between protected activity and adverse action — protected activity can be a contributing factor even if the employer also has a legitimate reason for the unfavorable employment action against the employee.”
Peterson v. BNSF Railway. Indeed, the ARB confirms that “even an insubordinate comment is not an intervening event when it was incidental to protected activity.” So chalk up another railroad FRSA defense that is doomed to failure. In Peterson’s case, the ALJ awarded him reinstatement with several hundred thousand dollars for back pay, emotional distress, and punitive damages.
When the 180 Day Limitations Period Begins To Run
Maverick Transportation LLC is a U.S. Circuit Court decision interpreting the FRSA’s fraternal twin whistleblower statute, the STAA (which protects truck drivers from whistleblower retaliation under the same standards as the FRSA). In Maverick, a driver suffered adverse action when he refused to drive a truck he believed presented a danger to himself and the public.
The Circuit Court upheld the ARB’s ruling that the 180 day “limitations period begins to run when the employee receives definitive notice of an adverse action,” not necessarily when the employer takes the adverse action without the employee’s knowledge. This means the limitations period begins to run only when the employee receives definitive notice of the adverse action taken by the employer. In the Maverick case, the employee did not find out until years later, but he was allowed to proceed because he filed his OSHA complaint within 180 days of his discovery of the adverse action.
The Circuit Court also affirmed the liberal standard for awarding emotional distress damages in FRSA retaliation cases. In Maverick, the employee was awarded $75,000 in emotional distress damages based solely on his own testimony without any medical evidence. The Circuit Court upheld the award, noting “A plaintiff’s own testimony can be sufficient for a finding of emotional distress, and medical evidence is not necessary.”