Railroad Worker’s Retaliation Claims After Filing OSHA Complaint To Proceed

While working as a “train dispatcher,” the plaintiff was involved in an incident that almost resulted in the collision of two passenger trains.  Several months later, the plaintiff filed a complaint with OSHA, the federal agency tasked with enforcing the whistleblower protections of the Federal Railroad Safety Act.  His OSHA complaint alleged that the railroad instructed him “to accept full responsibility” for the near collision and “to refrain from providing extensive testimony about [ ] related safety issues” during a formal hearing.  The complaint also alleged that the railroad then fired him for failing to follow those directives.

While that complaint was pending, the plaintiff attempted to exercise his seniority rights he maintained in the Brotherhood of Maintenance of Way Employees’ union to displace an employee with less seniority and return to work as a “trackman.”  Before becoming a train dispatcher (and joining a different union that represented workers in that craft), the plaintiff had been a trackman.

Last week, the U.S. District Court for the Northern District of New York denied the railroad’s motion for summary judgment and allowed the plaintiff’s claims to proceed.  There was no dispute that the plaintiff engaged in protected activity by filing an OSHA complaint, but the court’s attention focused on whether the railroad knew of the protected activity at the time it made its termination decision.  Circumstantial evidence existed showing that multiple railroad employees and members of the railroad’s law department engaged in significant e-mail correspondence regarding receipt of the plaintiff’s OSHA complaint one day before the railroad changed its mind about whether the plaintiff could come back to work as a trackman.  As the court explained, when viewing these facts in the plaintiff’s favor, “a reasonable jury could find that [ ]’s initial decision to defer to the Law Department’s determination was reversed in retaliation for plaintiff’s OSHA Complaint once members of defendant’s upper management became aware of it.”