- Habla Espanol?
WHISTLEBLOWER PROTECTION - FRA REPORT SLAMS RAILROAD MISCONDUCT
When trying to prove a retaliation claim under Section 20109 of the Federal Rail Safety Act, government reports may provide useful evidence.
The Federal Railroad Administration, for example, has been investigating complaints that one of the major railroads has harassed its employees in an effort to keep them from reporting injuries. And according to a draft version of the FRA report: “certain [a major railroad] officers were creating an atmosphere or culture that tends to have a chilling effect on employee injury/illness reporting and which ultimately sends a message to employees that if they report an on-duty injury, they would be subject to adverse consequences.”
A preview of the upcoming FRA report is contained in a memorandum that was issued as part of a hearing held last October by the United States House of Representatives’ Committee on Transportation and Infrastructure. The subject of the Congressional hearing was: “The Impact of Railroad Injury, Accident, and Discipline Policies on the Safety of America’s Railroads.”
A memo from the Committee’s Majority Staff noted that “the FRA recently conducted an extensive audit into allegations that [a major railroad] frequently harasses and intimidates employees and found numerous violations of Federal law.”
According to the Majority Staff, a draft version of the FRA reports on this railroad states: “The consensus of the investigative team was that certain [a major railroad] officers were creating an atmosphere or culture that tends to have a chilling effect on employee injury/illness reporting and which ultimately sends a message to employees that if they report an on-duty injury, they would be subject to adverse consequences.” FRA Draft Report, page 4, October 17, 2007.
When trying to prove a retaliation claim against a railroad, such reports might be relevant and admissible – under an important exception to the hearsay rule.
The Rules of Evidence To get some idea of how a government report might be used to help prove a retaliation complaint, you need to know a bit about some of the Federal Rules of Evidence. [Copies of the rules we discuss are included at the end of this article.]
Relevant evidence is evidence that has some tendency to prove a fact that is of consequence to the proceedings. And relevant evidence is generally admissible. However, a judge can exclude evidence for various reasons, such as when evidence is “unfairly prejudicial.” So, you cannot be sure that any particular piece of evidence – any specific “brick” in the wall you are building – will be admitted during a trial.
A famous rule of evidence that you have probably heard about, from some movie or television show, is the hearsay rule. The hearsay rule usually applies when a witness testifies about what someone else said.
For example, if Tom Testifier swears in court that he heard Ike Eyewitness say that he (Ike) saw Danny Defendant rob a bank, the hearsay rule would bar Tom’s testimony about what Ike supposedly said. What Tom says he heard Ike say is improper because it is hearsay. Testimony from Tom about what Ike supposedly says he saw is not a proper substitute for testimony from Ike.
The hearsay rule also applies to some documents. So, for example, if a police report says that Ike Eyewitness told Officer Friendly that Ike saw Danny Defendant rob the bank, then the hearsay rule would keep the jury from hearing about the police report. The police report is not a proper substitute for testimony from Ike.
Under the Federal Rules of Evidence, there is an important exception to the hearsay rule for official government reports. If there is a plane crash, for example, and a government report concludes that the cause of the accident was negligence by a pilot, then the government report can be used at trial in a negligence case against the airline. Similarly, in cases where a railroad employee alleges retaliation under Section 20109, a government report might be relevant and admissible to prove that the railroad has a habit or custom of retaliating against employees. And a government report might be relevant and admissible on the question of whether to impose punitive damages against the railroad for a pattern of outrageous conduct.
Evidence that a defendant engaged in some bad conduct on a prior occasion usually is not admissible to prove that the defendant acted the same way in your case. However, evidence that a company has a custom or practice of engaging in certain conduct is admissible to prove that the company engaged in the same conduct in another case. Plus, evidence that a company has a habit of engaging in wrongful conduct might be relevant in proving that the conduct in a particular case was outrageous enough to call for punitive damages.
Proving your case is like building a wall. You construct it one brick at a time. And a government report might be a solid brick.
We have included the Federal Rules of Evidence that are referred to in this article:
Rule 401. Definition of “Relevant Evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Rule 406. Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
If you or a loved one have suffered a serious injury or wrongful death at work on the railroad, or been retaliated against at work for being a railroad whistleblower, call an experienced FELA personal injury lawyer / train accident lawyer at Hoey & Farina at 1-888-425-1212, or complete this form, for your FREE CONSULTATION. Hoey & Farina represents clients throughout the United States.
Straight Track Newletter
- Notice - Unsafe Conditions on Railroads
- Friending & Defending
- Railroaders' Rights - The Cell Phone Trap
- Protecting Your Job & Your FELA Claim While Using Facebook
- Metra Conductor Attacked On Hyde Park Station Platform
- Retaliatory Discharge & The FELA
- "If It's Not A Slip, Trip or Fall, What Is It?"
- Railroads & Riverboats
- Know Your Equipment
- Working The Job & Getting Sued
- Best Practices For Reducing Injuries
- Working For The Railroad Off The Property
- Railroad Logic
- Shining The Light On Safety Standards For Signalmen
- Getting On and Off Moving Railroad Equipment
- Retaliatory Discharge: A Court Strikes Back
- Don't Be A Fool With The Rule
- Failed Couplings Under The Federal Safety Appliance Act
- Tangled In The Net
- Jury Returns $1,818,000 Verdict for Cumulative Trauma Injury
- 2012 Trial Lawyer Excellence Award Recipients
- Jury Trashes Metra's Defenses - Coach Cleaner Awarded $1.27 Million
- Hoey & Farina ‘Lights Up' The Belt - Verdict for Railroad Switchman in Locomotive Inspection Act Case
- Appellate Decision Upholds Engineer's "In Use" Argument in Balough v. Metra
- At The Heart Of A Railroad Family
- White Snow vs. Black Ice
- Record Verdict For Western Michigan - $7,263,000 For Injured Trackmen
- Jury Returns $33 Million Record Verdict In Illinois For Injured Railroader
- Verdict For Railroad Worker With Neck Injuries Caused By Defective Handrail
- Jury Returns $3.4 Million Verdict In West Virginia For Injured Conductor
- Big Supreme Court Victory For Railroaders - Part II
- Big Supreme Court Victory For Railroaders - Part I
- Structured Settlements: A Way To Secure Your Future
- Farina Beats BNSF on "Sole Cause" Defense
- Victory At Last: Tyrrell vs. NS Railway
- After Wild Ride, Hoey & Farina Helps To Snare Victory For Kentucky Railroader
- At Hoey & Farina, Size Doesn't Matter
- McLaughlin vs. CSXT - Offer: 0, Verdict: $2,331,000.00
- Record Illinois Verdict For Injured Railroad Employee
- Jury's "Not Guilty" Verdict Overturned By Federal Trial Judge
- Engineer Awarded $1,390,000.00 For Spinal Injuries Resulting From Locomotive Vibration
- BNSF Offers Low Settlement To Section Laborer, Hoey & Farina Litigates To Verdict In Iowa
- Important Verdict for Maintenance of Way Worker Affirmed by Eighth Circuit Court of Appeals
- Railroad Loses To Hoey & Farina On Appeal
- Major Verdict for Injured Railroad Employee After 27 Day Trial
- Verdict For Metra Electric Engineer "Trapped-Doored"
- Railroad, Military & Department of Veterans Affairs
- Hurt, Broke and Fired!
- Off-Track Vehicle Accident Benefits
- Disability Benefits: What Every Railroader Should Know
- Seniority Upheld Against Disability Rights
- Important Railroad Retirement Board Update
- Suddenly, Switching Career Tracks Doesn't Look So Unlikely
- RRB & Taxes
- How Railroaders Can Weather The Storm
- Railroad Injury Facts
- What Is The FELA?
- Test Your FELA Knowledge
- FELA 101
- Use 'Em Up & Spit 'Em Out: Negligent Assignment & The FELA
- Workplace Privacy & Personnel Records
- Bankruptcy and The FELA
- Clearing The Air On Railroader's Duty To Mitigate
- FELA Under Attack
- Section 60 of the FELA - Part II
- Section 60 of the FELA - Part I
- Crime Rarely Pays: The FELA & Criminal Acts Against Railroad Workers
- Railroader Discovers The "Discovery Rule" - The Hard Way
- Understanding The FELA
- Bankruptcy & The FELA, Part II
- The "Venue" Menu: What It Means For Injured Railroaders
- Your Railroad Work Injury
- Railroad Injury Claims & Tax Returns
- Reporting A Railroad Injury - Your Duty & Rights
- The Fear Factor II: Think Twice About Toughening It Out
- Prior Injuries, Prior Accidents and Prior Medical Conditions - What You Should Know
- Notice, Notice & More Notice!
- Part II: "I Didn't See Anything"
- Part I : "I Didn't See Anything"
- Creating The Paper Trail
- What Every Union Officer Should Know
- The Fear Factor
- A Paper Trail Is Everything for an Injured Railroader
- When In Doubt, Write It Out
- Preserving Evidence
- Is There A Right Way To Complete A Personal Injury Report?
- Heed The Warnings!
- Even A Champion Has To Practice, Practice, Practice
- Never Put Off Reporting a Railroad Work Injury
- Personal Injury Report: A Deadly Weapon In The Railroad's Arsenal
- Do You Copy?
- Completing The Personal Injury Report -- The Right Way
- Fear Factor III
- Back To The Basics: How To Complete An On-The-Job Injury Report
RAILROAD LAW & NEWS
- U.S. Court of Appeals Protects FRSA - Whistleblowers' Rights
- S.O.F.A. - Switching Fatality and Severe Injury Update
- Conductor Certification - Use It or Lose It
- U.S. Supreme Court Denies CSX Attempt To Change FELA
- New Restrictions on Crew Cell Phones Likely After Collision of BNSF Trains
- Trouble In Paradise
- Heat Order After Amtrak Derailment Slows Rail Service On CSX Tracks
- Illinois Adopts Strategy for Enforcing Crew-Van Safety Law
- Are Federal Appellate Judges Biased Against Plaintiffs?
- Big Win For Plaintiffs On Where Lawsuits Will Be Tried
- Empty Your Pockets
- Hoey & Farina Defeats Norfolk Southern & The Association Of American Railroads On Rail Safety Preemption Case
- FRA & Surface Transportation Board Join Forces With Hoey & Farina Against The NS & Association Of American Railroads
- Freight Railroads Hopeful for 2003, Passenger Rail Expects Upheaval
- U.S. Court Of Appeals Upholds Contractual Rights
- Railroad Punished For Destroying Evidence
- Injured Railroaders' Rights At Risk
- Inspector General Finds Lax FRA Enforcement
- Railroad Shoots Itself In The Caboose
- Lincoln Rides to the Rescue of Injured Railroaders
FOR YOUR FAMILY
- Prepare For Life's Unexpected Changes
- A Durable What ?!?!?!
- Hoey & Farina's Family Members Seminar & The People Who Are A Part Of Them
- Family's Prompt Action Secures Important Settlement For Injured Trainman
- If Tomorrow Never Comes
- What Do I Tell My Family? Part II
- A New Year's Resolution
- What Do I Tell My Family? Part I
- Expect The Unexpected
- A Call For Veterans
- Veterans Day
- A Call For Veterans' Stories
- Labor Day Celebrates Railroad Workers
- National Train Day May 8, 2010
- Celebrate Railroading On The Fourth of July!
- Veterans Day 2003
- Lessons From Our Steel Driving Hero
- The Real Meaning Of Labor Day
- Labor Day
- They Rode The Rails In Style
ABOUT STRAIGHT TRACK
- Prevent Health Insurance Coverage Problems
- Claim Agents' 3 Favorite Lies
- Winning The Railroad Lottery
- The Case Against Light Duty
- Is This The Same Railroad I Have Been Working For?
- Railroaded - A Fair Deal From The Claim Agent
- What's The Claim Agent's Job?
- "Must I Give A Statement To The Railroad About My Injury?"
- Railroad Offers Free Legal Advice To Injured Employees
- From One Railroader To Another: When Is It Advantageous To Deal With A Claim Agent?
- Deal or No Deal: The Railroad's Game
- Top Ten Lies From Railroad Claim Agents
- Like Fine Wine, Settle No Claim Before Its Time
- "Don't Worry" - Words of Comfort or Deception?
- In Your Best Interest
- Third Time's The Charm
- For A Limited Time Only
- So They Claim … Why Dealing With The Railroad Isn’t In Your Best Interest
- The Weather Outside is Frightful...
- Don't Let Your Claim Slip Away
- Prepare for the Winter Months
- 'Tis The Season To Be Careful
- Summer Time! Staying Healthy At Work on The Railroad
- Ice & Snow - Don't Let Your Claim Slip Away
- Railroad's Duty to Provide Safe Workplace During Summer
- The Bugs Are Back In Town
- The Effects of Walking on Ballast
- Reader's Response - Emotional Effects Of Collisions
- Emotional Effects of Collisions on Train Crew
- Metra's And Diesel Fumes Threat To Workers And Commuters
- Metra Continues To Test Due To Diesel Fumes Threat
- Diesel Fumes Threat To Railroad Workers And Commuters
- Checklist for Traumatic Brain Injury
- Oh My Aching Wrist! Carpal Tunnel Syndrome & The FELA
- Why Does It Still Hurt?
- The Creosote Threat To Railroaders
- New Study Reveals Risks from Harmful Vibrations For Engineers
- Traumatic Brain Injury: Not A Simple Diagnosis
- A Traumatic Experience Can Have Long Lasting Effects On Your Mental Health (PTSD)
- The Diesel Exhaust Threat
- Good, Good, Good...Good Vibrations?
- Recovering From Emotional Stress (PTSD)
- Aggravating A Pre-Existing Condition
- Asbestos: Railroads' Quiet Killer
- Understanding Back Pain: Getting It Evaluated & Treated
- Complex Regional Pain Syndrome
- Everybody Hurts, Sometimes
- Are You Aware?
- New FRA Rules On Locomotive Cab Noise
- Prior Medical Conditions
MEDICAL CARE / BILLS
- The Railroad In The Exam Room
- A Premium Smokescreen
- After I'm Hurt at Work, Why Should I Do Vocational Rehabilitation?
- Protecting Your Rights At The ER
- The ADA & Seniority Rights
- Post-Accident Drug & Alcohol Testing
- Medical Examinations & Occupational Disability
- When You Snooze -- You Lose (Your Rights Concerning Medical Care)
- Why Do Re-Hab Nurses Wear Fish Net Stockings?
- Who's Really Paying Your Medical Bills?
- Your Doctor Must Be Your Best Friend
- Company Doctor - Medical Witness
- Company-Ordered Medical Examinations
- Talking To Your Doctor
- No Costume Needed: A Scary Story for Halloween
- The Defense Medical Exam
- Victory For Railroaders' Medical Confidentiality
- The Railroad As Big Brother
- On A Need To Know Basis: Medical Bill Payments & The Injured Railroad Employee
HIRE A FELA LAWYER
- Remembering a Life of Giving
- How Many Lawyers Does It Take To...
- More Than Just Words: You May Not Need A Lawyer, But You Do Need Legal Advice
- Hoey & Farina: Representing All Seriously Injured Individuals & Their Families
STATUTE OF LIMITATIONS
- Your Right & Responsibility To Help!
- Honoring The Father, The Man & The Job
- Debs Was First Rail Trade Unionist To Champion Unity
- Your Right To Choose & Recommend Designated Legal Counsel Fought For By Your Union - Part II
- Your Right To Choose & Recommend Designated Legal Counsel Fought For By Your Union - Part I
- A Protected Right & Responsibility To Help!
- More Candid Talk About Video Surveillance
- Smile! You’re On Candid Camera: Video Surveillance Admissibility
- If Injured Be Aware: Surveillance Videos Can Destroy Your Case
- Under Surveillance? Don't Get Discredited!
MOTOR VEHICLES / CABS
- What Happens If The Railroad's Outside Contractor Creams Me?
- Understanding The Railroad's Use Of Taxi Cab Companies
- "Does The FELA Apply If I Am Injured Riding In A Motor Vehicle While I Am On The Job?"
- Don't Be Taken For A Ride
- Part I - Congress Stands Up For Railroad Whistleblowers
- Part II - Basic Questions And Answers About Whistleblower Protection Laws
- Part III - Protection for Refusing to Violate Safety Laws
- Part IV - Procedures & Remedies For Protecting Your Whistleblower Rights
- Part V - Supreme Court Decision May Extend Reach of Anti-Retaliation Law
- Part VI - Procedures for Filing Whistleblower Retaliation Claim
- Part VII - OSHA Investigation of Claim
- Part VIII - Sample OSHA Complaint
- Part IX - New Federal Law Protects Local Remedies
- Part X - Government Report Slams Railroad Misconduct
- Part XI - Sorting Out "Election of Remedies"
- Part XII - Court Clarifies Requirements For Proving A Retaliation Claim
- Part XIII - Railroad Leaves "Fingerprints" of Retaliation by "Hounding" Employee