WHISTLEBLOWER PROTECTION - RAILROAD RETALIATION REPORT - PART IV

Whistleblower Protection Shield - FRSA
PROCEDURES & REMEDIES TO SAFE GUARD YOUR RIGHTS
Written By: James L. Farina, Alan J. Fisher and Steven P. Garmisa

In the first five months after the FRSA was amended by Congress to strengthen protections for railroad employees, four complaints were filed with the OSHA under the revised law. As of January 3, 2008, three of the complaints filed by railroaders under 49 United States Code, Section 20109 were still being investigated by OSHA. The fourth complaint, filed by a CSX dispatcher, was dismissed. OSHA concluded that the new whistleblower protections did not apply because the CSX dispatcher was fired before the new law went into effect on August 3, 2007.

Does this mean that only three Railroaders were the victims of unlawful retaliation by railroads after Section 20109 was amended? We think it is more likely that awareness of the new law has not yet flowed from The Congressional Record to rail yards. We hope the flow of information from Straight Track will become a valuable reservoir of knowledge and awareness, so that railroaders can exercise their new rights under Section 20109.

To exercise your new rights, you need to know procedures and remedies under the new statute. We hope the following information will serve as a guide to help railroaders understand their rights under the statute.

Complaints

An employee who alleges that he or she was fired, disciplined or otherwise discriminated against in violation of the new whistleblower protection law can file a complaint with the Secretary of Labor.

OSHA acts on behalf of the Secretary of Labor in handling the new whistleblower program.

The Initial Showing

When a railroader files a complaint under Section 20109, OSHA first looks for whether the employee made an initial showing that protected activity was a contributing factor in the railroad’s alleged retaliation.

If OSHA decides that the employee failed to make the required initial showing, it will dismiss the complaint without conducting an investigation.

And, even if OSHA concludes that a railroader made the required initial showing, no investigation will be conducted if the railroad convinces OSHA, by “clear and convincing evidence”, that the railroad would have taken the same disciplinary action even if the railroader had not engaged in protected activity.

For example, if a railroad employee alleges he was fired in retaliation for reporting violations of federal safety rules, but the railroad proves by clear and convincing evidence that it fired the employee because it discovered that he was drinking on the job, OSHA can dismiss the complaint without an investigation.

Clear and Convincing Evidence

In most civil cases, including lawsuits based on the Federal Employers’ Liability Act, the “burden of proof” is “a preponderance of the evidence.” In plain language, this means that the plaintiff wins if he or she convinces the jury that the required facts are probably true. In criminal cases, the prosecution must prove its case “beyond a reasonable doubt.”

The “clear and convincing” requirement that Congress imposed on railroads is somewhere in between the heavy “burden of proof” in a criminal case, and the much lighter “burden of proof” in civil cases. This means Congress wanted to make it difficult for railroads to escape liability for retaliation, but not as hard as having to prove guilt in a criminal case.

Direct and Circumstantial Evidence

You would have “direct evidence” of a violation of Section 20109 if a supervisor bluntly declared: “We are retaliating against you for sending reports to the federal government.” Direct evidence of this magnitude usually is not available. However, circumstantial evidence can be very persuasive. If you did not see someone walk across a field, for example, you would not have direct evidence of that fact. But if you see human footprints in fresh snow, those circumstances are strong “circumstantial evidence” that someone walked across the field after it snowed. You did not see it, but you proved it with circumstantial evidence.

Ruling against Railroads

After an investigation, OSHA will not rule against the railroad unless the employee proves that his or her protected activity was a “contributing factor” in the railroad’s decision to retaliate against the employee.

And even if OSHA decides there was unlawful retaliation, OSHA will not punish the railroad if it proves, again, by clear and convincing evidence, that it would have taken the same action against the employee even if he had not engaged in protected activity.

Deadlines

The complaint must be filed with OSHA within 180 days after an alleged violation. Then, if OSHA fails to issue a final decision within 210 days after the filing of a complaint, and the delay was not due to bad faith by the employee, the employee can file a lawsuit in federal court, with a right to trial by jury.

Remedies

If OSHA rules against the railroad, the employee is “entitled to all relief necessary to make the employee whole.”

Among other things, OSHA can order the railroad to reinstate the employee with seniority; pay lost wages, with interest; give the employee enough money to cover any other losses caused by retaliation, including reimbursement for the fees and expenses of the lawyer who represented the employee in the whistleblower case. Plus, OSHA can award up to $250,000 in punitive damages against the railroad.

Appeals

OSHA’s ruling becomes final unless there is an objection within 30 days. After OSHA issues its ruling, though, the railroad or employee can request a trial before an Administrative Law Judge.

Summary

Here is a re-cap of what you have to prove in order to win your case under Section 20109:

1. Protected Activity - You engaged in activity that is protected under the statute.
2. Employer Knowledge - Your employer knew or suspected that you engaged in protected activity.
3. Adverse Action - You were fired, demoted, suspended, reprimanded, or suffered any other type of detrimental action from your employer.
4. Connection - There was a connection between the protected activity and the adverse action. If there is no direct evidence of the required connection, this can be established circumstantially.

In a whistleblower protection case, the type of circumstances that help establish the required connection between (1) protected activities and (2) retaliation include such things as:

• Any animosity or hostility expressed by railroad supervisors toward the protected activity.
• The closeness in time between the protected activity and the retaliation. • Whether there was different treatment of the employee who filed the complaint compared to other similarly-situated employees.
• Whether the railroad use false testimony or manufactured evidence. And,
• Whether the railroad’s defenses were obviously phony.

Conclusion

The Hoey & Farina RAILROAD RETALIATION REPORT intends to report on future developments concerning the strong safeguards that Congress provided for Railroaders under the amended version of Section 20109 - whistleblower protection. Keep us posted, and we will continue to make every effort to keep you informed, protected, and fully compensated.

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.

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Email: info@hoeyfarina.com
 
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