Railroad Worker’s Retaliation Claims For Refusing To Fabricate Safety Violations Proceed To Jury

The anti-retaliation provisions of the Federal Railroad Safety Act are fairly recent additions to the statute and contain, on their face, a lighter causation standard than other employment retaliation statutes.  They provide that a “railroad carrier … may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee’s lawful, good faith act done, or perceived by the employer to have been done or about to be done[,] … to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security.”  49 U.S.C. § 20109(a)(2).  In a case in the U.S. District Court for the Northern District of Alabama, a plaintiff railroad foreman of engines brought suit against a railroad alleging violations of these provisions.

The plaintiff contended that the railroad instructed its road foremen of engines to find and report more safety violations, along with corrective action, on the trains they managed.  The plaintiff alleged that the railroad instituted a strict quota of safety violations that had to be recorded and that if not met, the plaintiff was instructed to fabricate safety violations to meet the quota.  After he was transferred to a different position in a different state with a lower rank and pay, the plaintiff resigned and claimed constructive discharge.  The defendant filed for summary judgment, claiming that the primary purpose of the plaintiff’s position was to uncover safety violations, it had no specific quota for the number of safety violations that needed to be recorded, that the plaintiff reported “by far” the lowest number of safety violations of any one in his position in the entire company, and that his particular division suffered a spike in train derailments around the same time.

The parties agreed that fabricating safety violations on a safety report would violate federal safety regulations and thus an employee’s refusal to fabricate violations would be protected activity under the Federal Railroad Safety Act.  The question before the court was whether the defendant did, in fact, instruct the plaintiff to make one or more fabrications.  The court allowed this question to proceed to the jury and denied the defendant’s summary judgment motion based on the plaintiff’s deposition testimony that a supervisor berated him for not meeting a requisite quota of safety violations on his report along with an email sent around the same time indicating that each railroad foreman was to come prepared to a meeting to discuss six specific handlings of recent violations.  The court, however, noted the spike in train derailments in the plaintiff’s division in explaining, “Viewed in light of defendant’s apparent safety crisis, the jury may conclude that [the supervisor’s] angry ‘whatever it takes’ comments were inspired by justifiable incredulity at plaintiff’s claims that he could not find safety violations, rather than that the comments were meant as an order to fabricate violations.”  Nonetheless, if assumed that the defendant did instruct the plaintiff to fabricate safety violations, the supervisor’s alleged angry comments were enough to withstand summary judgment on causation for a jury could find that the plaintiff’s refusal to fabricate the violations was a contributing factor in the railroad’s demotion decision.

Also of note, the court questioned why the railroad continued to emphasize that the plaintiff was treated more favorably than other employees who failed certain classes and failed to report safety violations.  Specifically, the railroad claimed that the plaintiff was the only person given two corrective training classes and the only one who was offered a transfer to another position after failing to pass the classes.  The court explained, “this dissimilar treatment could be viewed as evidence that defendant was trying to cover its tracks or talk plaintiff out of litigation, and not as evidence of fairness and patience.”