- Habla Espanol?
WHISTLEBLOWER PROTECTION - SAMPLE OSHA COMPLAINT
We strongly recommend that you confer with your union representative, or FELA Designated Legal Counsel, before pursuing a retaliation claim under the new version of § 20109 of the Federal Rail Safety Act.
A retaliation case under § 20109 is not a do-it-yourself project. The facts and circumstances of each case must be developed, dissected, digested and discussed to prepare for this process. To assist in this discussion, we have provided a sample complaint. Using fictional names, the employer is called Ruthless Railroad, while the victim of unlawful retaliation is referred to as Ralph Railroader.
To the United States Secretary/ Department of Labor
And the Occupation Health and Safety Administration
Ralph Railroader, Complainant,
Ruthless Railroad, Respondent.
Complaint Pursuant to the Federal Rail Safety Act,
49 United States Code § 20109, as amended by the
Implementing the 9/11 Commission Recommendations Act
Ralph Railroader (Ralph), by his attorney, D. L. Counsel, respectfully submits the following as his complaint against Ruthless Railroad (Ruthless), pursuant to Section 20109 of the Federal Rail Safety Act, as amended by the Implementing the 9/11 Commission Recommendations Act, effective August 3, 2007.
1. Ralph was riding in the cab of a Ruthless locomotive unit while working as a freight conductor for the railroad in Somewhere, U.S.A., on September 4, 2007.
2. As required by one of Ruthless’ regulations, Ralph was sitting in his designated seat at a window watching for signals, while the engineer was seated at the other side of the cab looking for signals on the other side of the tracks.
3. It was impossible for Ralph to see the yard signals on the engineer’s side of the locomotive because the “long nose” of the locomotive unit obstructed his view as the unit was going through a curve in the yard track.
4. As also required by Ruthless’ regulations, the engineer called out that he saw a go-ahead signal, and Ralph repeated the signal indication given to him by the engineer. However, because of the long-hood and the curve, Ralph was unable to see the signal on the engineer’s side of the locomotive. And the Ruthless regulation did not obligate Ralph to have X-Ray vision.
5. As the locomotive unit traveled down the track Ralph reached to put his paperwork in his work bag. Then, at that point, the locomotive unit – which was traveling at approximately 5 miles per hour – derailed from the track onto the ground.
6. The engineer promptly admitted to Ralph that he had misread the signal and failed to realize that he was supposed to stop rather than proceed at that point in the yard track.
7. The damage to Ruthless’ property from the derailment totaled approximately $1,500.
8. Ralph was not responsible for the derailment because he was sitting at a window on the conductor’s side of the locomotive, as required by Ruthless’ regulations, and because of the long-hood and curve, he could not see the yard signal on the engineer’s side of the locomotive.
9. The engineer admitted to Ruthless that his carelessness was the sole cause of the accident.
10. Ralph was injured in the derailment, but he feared reporting that he was injured. Based on a pervasive and persistent pattern of outrageous misconduct by Ruthless, Ralph knew that he would be fired by Ruthless if he reported he had been injured.
11. Injured railroad employees do not get workers compensation benefits under state law. However, under the Federal Employers’ Liability Act, 45 United States Code § 51 et seq., injured railroad employees are permitted to sue their employers for negligence. Consequently, because they are directly liable for negligently injuring employees, some railroads – such as Ruthless – have engaged in the practice of deterring personal injury claims by retaliating against employees who report work-related injuries, thereby thwarting the intent of the F.E.L.A.
12. In the region where Ralph worked, Ruthless has succeeded in creating a pervasive and intense climate of fear among employees who know they will be fired if they report that they have been injured on the job.
13. Ralph did not want to report his injury because he knew that Ruthless would retaliate by firing him. However, by the time he got home, Ralph was in such severe pain that – despite knowing he would be fired – Ralph reported to a supervisor that he had been injured, and Ralph went to a hospital for treatment.
14. As anticipated by Ralph, Ruthless retaliated against him for reporting a personal injury by (1) conducting a pre-textual hearing on October 10, 2007, and (2) firing him on October 21, 2007. A copy of the October 21, 2007, termination letter is attached as Exhibit A.
15. As amended by the Implementing the Recommendations of the 9/11 Commission Act, effective August 3, 2007, Section 20109 of the Federal Rail Safety Act, 49 U.S.C. § 20109, was amended to provide that a railroad engaged in interstate commerce (such as Ruthless) shall not, among other things, fire or terminate an employee for reporting to a supervisor that he suffered a work-related injury. 49 U.S.C. § 20109(a)(1)(C) and 20109(a)(4).
16. Ralph engaged in protected conduct when he reported that he suffered from an on-the-job injury, and Ruthless’ conduct in retaliating against Ralph, by firing him for engaging in protected activity, violated Section 200109. 49 U.S.C. § 20109(a)(1)(C) and 20109(a)(4).
17. The phony excuse given by Ruthless for firing Ralph was that he supposedly should have prevented the engineer from going past the yard signal with a stop-indication. However, Ralph, as required, was seated at the window on the other side of the locomotive from the engineer, and it was impossible for Ralph to see the signal that the engineer misread.
18. A Public Law Board issued an interim order commanding Ruthless to re-instate Ralph as an employee. Exhibit B.
19. By reporting to a supervisor that he had been injured on the job and was going to seek medical attention, Ralph engaged in protected activity under Section 20109. 49 U.S.C. § 20109(a)(1)(C) and 20109(a)(4).
20. Having received Ralph’s report that he had been injured, Ruthless knew that Ralph engaged in activity that was protected under Section 20109.
21. Ruthless’ decision to terminate Ralph was motivated by its policy of retaliating against employees who report that they have been injured on the job.
22. Unless OSHA and the Department of Labor put a stop to Ruthless’ improper and outrageous conduct in firing employers like Ralph who engage in the protected activity of reporting that they have been injured on the job, Ruthless will have succeeded in deterring employees from reporting injuries.
23. Ruthless should be subjected to a hefty sanction of punitive damages under Section 20109 to deter it from continuing to engage in the outrageous practice of firing employees who report that they were injured on the job.
24. Ralph’s home address and telephone number are: __________.
25. The address and phone number of Ruthless Railroad’s local office in the region where Ralph worked are: _________________.
26. Ralph is a member of the _____________________union.
27. The approximate number of employees who are employed by Ruthless Railroad in the divisions where Ralph worked is _____. Wherefore Ralph Railroader requests that OSHA and the Secretary / Department of Labor order Ruthless Railroad to fully reimburse him for all compensatory losses suffered as the result of its conduct in firing Ralph; reimburse Ralph for his legal fees and expenses in pursuing this complaint; and order Ruthless to pay an award of $250,000 in punitive damages.
D. L. Counsel
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
RAILROAD LAW & NEWS
- Railroaders' Rights - Protection Needed for Off-Duty Injuries / Illnesses
- FRA - Status of Positive Train Control Implementation
- An FELA Claim Is An Asset Of Bankruptcy Estate
- 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
- The 911 On Reporting a Railroad 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
HIRE A FELA LAWYER
- Where In The World Is Jim Farina?
- 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
- 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
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 Continues To Test Due To Diesel Fumes Threat
- Metra's And Diesel Fumes Threat To Workers And Commuters
- 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
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