Straight Track #260: RRR Part 8

We strongly recommend that you confer with your union representative, or 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,             )
                                                        )
          vs.                                         )
                                                        )
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.

25. The address and phone number of Ruthless Railroad’s local office in the region where Ralph worked are: _________________.

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.