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Woman suing over Empire Builder rape case


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#81 Bob Dylan

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Posted 01 December 2017 - 01:32 PM

The CEO of Amtrak needs to call up the Lawyers handling this case for Amtrak and tell them in no uncertain terms to Settle with the Woman for Fair Compensation along with Sincere apologies from Amtrak.

He also needs to have his Executive team do a serious study of the vetting,hiring and discipline system that Amtrak negotiates with the Unions, and implement a workable and sensible system that protects the Rights of Both the Employees and the Passengers!

Basta! Enough "it's not Right but its Legal" BS!!

Edited by Bob Dylan, 01 December 2017 - 01:32 PM.

"There's Something About a Train! It's Magic!"-- 1970s Amtrak Ad
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Yet there isn't a train I wouldn't take,No matter where its going!.." -Edna St. Vincent Millay

#82 tricia

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Posted 01 December 2017 - 02:03 PM

 

I see myself as a feminist. If I walk down a lonley street at night, and there is a lone female ahead, I cross the road to the other side, so as not to raise any worries...Maybe the current level of sexual harrasment coming into the news in many walks will help to promote better Amtrak whistle blowing and vetting procedures.


I still support the original goal of popularizing gender equality through traditional feminism.  What's not to like about a social contract that promotes equal power and responsibility for the benefit of everyone?  I think almost anyone with a conscience can get behind the idea that powerful people should not be allowed to abuse their position in order to force subordinates into non-consensual behavior. Whether on the street or on Amtrak or in a hotel room.  However, we now seem to be moving beyond the equality standard in some ways, possibly in response to growing anger and dissatisfaction with living under the regime of a self-professed woman grabber. These days even seemingly harmless (if socially awkward) displays of romantic affection are being reinterpreted as potentially life altering criminal behavior.  Which leaves me wondering how men will go about pursuing women in a socially acceptable manner in the future.  Perhaps women will eventually become the primary romantic pursuers if the new social contract begins to favor their interests over time.

 

 

That friendly touch currently is perilous in many settings is a real loss—and not just to our romantic lives. Human touch in social and business settings is so important that non-threatening ways to do it (like handshakes) have been institutionalized for perhaps as long as humans have been human.

 

But the blame for this awkwardness shouldn't be assigned to the women who feel newly enabled to publicly shame men who've abused them. The blame belongs to those men, and to some extent to all of us who've been complicit in a culture that has allowed them to abuse with little risk.  (It's mostly men not because women are somehow morally superior, but because men are much more often in positions of economic, physical, and/or other power over women than vice versa.)

 

I think much of the current awkwardness is temporary. It seems reasonable to hope that as more men learn that they need to seek consent, rather than assume that superior power either gives them irresistible attractiveness or simply allows them to get away with whatever they want, life will improve for women and men alike.

 

Amtrak, like other businesses and institutions, can help this good process along by implementing a no-tolerance policy for physical abuse, defined to include any sort of intentional, non-consensual touching. For this to be effective, the policy needs to be well publicized, and employees need to be trained to look for and immediately respond to incidents of abuse.

 

Perhaps a few well-publicized incidents of gropers being thrown off the train at the next stop (as Amtrak policy currently treats on-board smokers) would be helpful. (DA: It's perhaps too much to hope that this might happen to a certain orange-haired office holder--but imagining such a scene does make me smile.) 



#83 Lonestar648

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Posted 01 December 2017 - 06:05 PM

The corporate legal team seems to control these situations, not the CEO.  How can we minimize the liability is all that is important to management.  Lawyers prohibit admission of fault, immediate offers to compensate and assist, etc. because these demonstrate guilt.  Concern for the people involved is at the bottom of their list, top is protecting the all mighty corporation. United's CEO went against the advice of his legal team.  Amtrak is doing what most corporations do, hide behind the legal team.



#84 neroden

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Posted 03 December 2017 - 11:18 AM

OK, Mr. Nerode, I will concede to you that the doctrine of a Union's obligation to represent it's employees was first set forth in the first of the Trilogy - the Wagner Act. However, with much enacted legislation, there are found to be "lukewarm" provisions to accomplish the intent of the legislation's framers. The Landrum-Griffin Act placed "teeth" into the fair representation of employees covered by an Agreement.

https://www.nlrb.gov...rum-griffin-act

Thanks for the reference regarding the Wagner act.


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#85 neroden

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Posted 03 December 2017 - 11:22 AM

Their responses to both of the incidents noted in this thread indicate an unwillingness to take seriously the potential for assault to passengers.

How exactly do your draw that conclusion from the facts on hand?

 
Two examples:
 
From the article about the rape: "The argument that Amtrak is liable for the attack is based on the Common Carrier Doctrine, which holds carriers such as Amtrak to the "highest degree of care" in regards to passenger safety, rather than the "reasonable care standard." Amtrak's attorneys, however, argue that the doctrine doesn't apply in this case, only when a passenger is injured by an employee acting within the scope of their employment duties. Pinner raping the woman was "not ratified by Amtrak, and thus, Amtrak cannot be liable for punitive damages," the carrier's attorney wrote. " My mind boggles at this: Amtrak is saying it shouldn't be held accountable for actions committed by an on-the-job employee--one whose job is, in part, to ensure the safety and security of passengers--so long as Amtak doesn't explicitly give that employee permission to rape a passenger.

In a sense, Amtrak is correct in the rape case -- the Board should have been named as an additional defendant, and Amtrak should have countersued the Board, because because the Board *specifically ordered* Amtrak to rehire a employee who was known to be irresponsible and dangerous, against Amtrak's protests. That means they ratified the employee's action and THEY are subject to punitive damages. Name the individual arbitration board members as defendants and get going; reinstating someone who committed criminal activity on the job is outside the scope of their legitimate arbitration powers, so their actions can be classified as personal, not state.

If the board members want to claim that Amtrak didn't provide a proper prosecution, they can come defend themselves in court and we'll see who's actually responsible. Best to charge them.

Edited by neroden, 03 December 2017 - 11:24 AM.

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#86 caravanman

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Posted 03 December 2017 - 12:19 PM

Being from outside the USA, I am not familiar with how your laws work... It sounds to me as though a court judge can be prosecuted if they free a person, who then goes on to commit a different crime?  Maybe it will be difficult to find folk to be judges, or sit on employee disciplinary panels, if that is the case?

 

Ed.



#87 Thirdrail7

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Posted 03 December 2017 - 12:36 PM

 

 

Two examples:
 
From the article about the rape: "The argument that Amtrak is liable for the attack is based on the Common Carrier Doctrine, which holds carriers such as Amtrak to the "highest degree of care" in regards to passenger safety, rather than the "reasonable care standard." Amtrak's attorneys, however, argue that the doctrine doesn't apply in this case, only when a passenger is injured by an employee acting within the scope of their employment duties. Pinner raping the woman was "not ratified by Amtrak, and thus, Amtrak cannot be liable for punitive damages," the carrier's attorney wrote. " My mind boggles at this: Amtrak is saying it shouldn't be held accountable for actions committed by an on-the-job employee--one whose job is, in part, to ensure the safety and security of passengers--so long as Amtak doesn't explicitly give that employee permission to rape a passenger.

 

In a sense, Amtrak is correct in the rape case -- the Board should have been named as an additional defendant, and Amtrak should have countersued the Board, because because the Board *specifically ordered* Amtrak to rehire a employee who was known to be irresponsible and dangerous, against Amtrak's protests. That means they ratified the employee's action and THEY are subject to punitive damages. Name the individual arbitration board members as defendants and get going; reinstating someone who committed criminal activity on the job is outside the scope of their legitimate arbitration powers, so their actions can be classified as personal, not state.

If the board members want to claim that Amtrak didn't provide a proper prosecution, they can come defend themselves in court and we'll see who's actually responsible. Best to charge them.

 

 

I've always wondered how that worked, but I don't think it works the way you've mentioned, Neroden. Let go back to the archives and recall an incident in Amtrak's past:

 

A collision in 2004 between a stationary LIRR train and an Amtrak train in the East River tunnel. Please note, that I will only use information publicly available.

 

Allow a few quotes from TRAIN DRIVER IN CRASH TIRED

 

 

 

Tritini, who has been fired by Amtrak, didn't dispute the finding, and told the Daily News he had worked "excessive overtime" in the week of the collision. "You either go [on an assignment] or you are insubordinate," he said. "You are between a rock and a hard place.

" Tritini was at the helm of an Amtrak locomotive pulling empty passenger cars into Penn Station at about 7 a.m. on April 19 when it slammed into a stopped LIRR train at about 10 mph. The collision knocked the LIRR train 13 feet and injured 131 passengers and crew members on the commuter train. None of the injuries was life-threatening. Amtrak spokeswoman Tracy Connell declined to comment. Tritini is appealing his firing through his union. Tritini was first hired by Amtrak in 1987. In 1994, he qualified as a locomotive engineer but was fired in 1999 because of a "Rule G violation - random testing," according to the report. The rule pertains to possession, use and testing for alcohol, illegal drugs, medication or other substances that could cause impairment. He was rehired two years later and became an engineer again in 2002.

 

The PLB overturned his dismissal from 1999 and he was reinstated in all capacities in 2002. A few years later, he is involved in a collision, in which he was fired again. This is another example of "What can you do?" Who is ultimately responsible other than the person who committed the act? You could argue that if the PLB didn't reinstate him, this incident never would have occurred.  I don't think you can sue the board. I would believe that is akin to suing the courts.

 

After the above incident, the PLB **again** overturned the dismissal and reinstated him in all capacities (since it was his first operating incident 17 years...remember, the Rule G didn't count since he was reinstated) where he remained until he "moved on"  :ph34r:  in 2012 after 25 years on the job.

 

Let say for giggles that he was involved in another collision and injured people after being fired twice and reinstated twice. These are court decisions. Can you sue a court for allowing someone with a previous record to be released on bail while awaiting trial and they commit a crime? Can you sue a parole board for allowing someone out on parole and the commit a crime?

 

I'm thinking the answer is no so while it sounds good on paper, it doubt this is a viable solution...unless you can prove misconduct or some sort of collusion or bribery.  It is along the lines of suing the prosecutor or judge if you have been wrongfully convicted and your case is overturned.

 

Meanwhile, the companies are left holding the bag.

 

Additionally, Tricia, this is common tactic. If my memory is clear (and it might not be), Exxon used this same tactic after the disaster in the Prince William sound.  They basically said "this isn't our fault. Captain Hazlewood is the one ran the ship aground. He is fully responsible for this since he knew he shouldn't operate a boat under the influence."

 

The freights (in which the CEO was the head of one) are NOTORIOUS for this move. They've resorted to suing their own crews for damages. Here was the first shot (to my knowledge) across the bow:

 

Engineer sued by railroad in train collision

 

Please allow a brief "fair use" quote from this 2005 article:

 

 

Documents filed in U.S. District Court in Des Moines allege that Gary Cordray, a railroad engineer who lives in Fort Madison, failed to stop at a signal and ended up on a collision course with another locomotive.

A 4,000-gallon diesel tank was punctured and both locomotives and some freight cars were damaged.

An estimated 700 gallons of fuel spilled along a 1.5-mile section of the track, as did holiday popcorn tins and sneakers destined for Wal-Mart stores.

The crash also delayed an Amtrak passenger train for several hours.

.

 

The company said Cordray was negligent in failing to follow proper regulations.

"Obeyance of train signals is essential for the protection of the safety and lives of BNSF employees, the safety and lives of passengers on Amtrak trains" and the safety of "others in proximity to railroad tracks," the lawsuit said.[/b]

 

I snickered when I first read this. I thought "oh, now they're worried about delaying an Amtrak train! :giggle: "

 

This was the first of many. Here are two fairly recent ones from a railroad that may have something in common with Amtrak:

 

2016's Norfolk Southern Railway sues engineer in 2015 Washington County derailment and 2014's Norfolk Southern suing engineer over Sewickley train crash

 

I will quote from the latter article:

 

 

 

 

 

What Norfolk Southern would gain from winning the lawsuit isn't clear. Several lawyers familiar with employment and railroad laws said it's unlikely Heilig has an insurance policy that would cover a judgment in the case.

 

 

John Stember, an employment law attorney who represents a local of the Brotherhood of Locomotive Engineers and Trainmen, said he's heard of companies trying to dock workers' pay or take other actions in response to accidents, but he hasn't heard of suing them in federal court for damages.

 

“I've never seen it, and I've done this a long time,” he said.

Robert Peirce, a personal injury lawyer who represents people injured in railroad incidents, had the same assessment.

“I've not seen one like it,” he said.

Sam Cordes, an employment lawyer who represents employees, said he's seen companies sue employees to recover damages they have to pay to third parties, but that only makes sense if the employee has an insurance policy.

“That is probably what's going on,” he said.

Two of the damaged locomotives belong to Union Pacific Railroad and one of the railcars belongs to TXX Co., the lawsuit says. Consequently, Norfolk could end up paying both of them damages as well as other third parties, the lawsuit says

[/b]

 

You're probably thinking what does any of this have to do with anything. It is cut and dry to me. Look at the first article. The companies are basically saying 'We've trained people to act a certain way. They are professionals. They know what is right and what is wrong based the training and instructions they've received. THEY are directly responsible for this and they are negligent and have failed us as well. We are taking action."

 

The companies are attempting to limit their liability, which is a common legal tactic. Ultimately, I believe a settlement will be made as soon as the terms have been made clear. However, the legal posturing is as Bob Dylan and Jis mentioned typical from a legal standpoint.

 

No matter what screening you provide, you can't be sure what someone will do. When the depressed copilot locked his pilot out of the cockpit and flew the plane directly into the side of the mountain, evaporating everyone on board, I'm willing to bet the company didn't see that one coming.


Edited by Thirdrail7, 03 December 2017 - 04:42 PM.

They say laughter is the best medicine. Obviously they never posted on AU.


#88 neroden

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Posted 04 December 2017 - 01:19 AM

It's not akin to suing the courts. Judges have a special status. Administrators in the federal government do not have the same status, because they are not actual judges; they do not go through the appointment and confirmation procedures applicable to judges.

Prosecutors can be and are sued, but have been given some completely ludicrous and unconstitutional immunities by judges, which are currently being challenged. The official legal excuse for the immunity is that prosecutors don't actually make any decisions (!!!) which is pretty bogus, but in any case does not apply to a quasijudicial panel.

Furthermore, you CAN actually sue judges if their actions were objectively *wildly* out of line with the law; their actions are then considered to be not a judicial action. Higher-level judges can give them reprimands.

This is substantially easier with an administrative panel which isn't actually judicial in the first place.

The standard for suing them isn't merely that they were negligent or contributed to the future crime; the standard, if I remember correctly, is that their ruling did not comply with the law and that they *knew* when they made the ruling that it did not comply with the law (the second part is the tricky bit, but it's been proven in some cases). Basically you have to prove deliberate disregard for the legal standards they were supposed to be upholding.


But under *normal* circumstances, the rulings of such an administrative panel are *not* binding; they can be appealed to the *actual* courts. I have been given the impression that Amtrak isn't doing this. Is there a legal reason why they aren't?

The way this works, last I checked, is, first you go to the courts to overrule the administrative panel and declare its ruling to be unsustainable and unjustified, and then after you've proven that, you may try to demand compensation for having to comply with the unjustified demands of the administrative panel in the meantime.

Did Amtrak fail to take the first step of going to the courts to overrule the administrative panel? If so, why? Is there a bizarre provision in the Wagner Act which prevents it?

Since the court appeals are usually really slow, I'm afraid I was assuming that Amtrak was still bogged down in appealing the administrative panel ruling (since that happens *often*), but did they just shrug their shoulders and not appeal it? In that case it's entirely on Amtrak.

Edited by neroden, 04 December 2017 - 01:27 AM.

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#89 Lonestar648

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Posted 04 December 2017 - 11:37 AM

So the question would be, can the "Binding" decision made by the panel be appealed? If it can, why didn't Amtrak?



#90 me_little_me

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Posted 05 December 2017 - 12:31 PM

Being from outside the USA, I am not familiar with how your laws work... It sounds to me as though a court judge can be prosecuted if they free a person, who then goes on to commit a different crime?  Maybe it will be difficult to find folk to be judges, or sit on employee disciplinary panels, if that is the case?

 

Ed.

 

Court judges cannot be sued by individuals based on their rulings, if I understand right. Their rulings can be overturned on appeal; they can be removed from office; they can have other punishments imposed by higher courts; they can be "tried" and "convicted" in the court of public opinion.

 

So the question would be, can the "Binding" decision made by the panel be appealed? If it can, why didn't Amtrak?

 

I would suggest that binding means exactly that. While it is likely possible to drag government agency decisions through the courts, it would also mean the other side could drag a decision in your favor the same way. For organizations who regularly use the same decision making body, it would likely be a dangerous precedent. That's different than a one-time lawsuit by individuals or class actions against a bank or government agency. It's not like the bank next time is going to sue if they lose the next binding arbitration decision against you, if there ever is one. The most-likely positive result when suing the bank is that the court of public opinion causes the bank or company to partially back down (ala Wells Fargo).



#91 Lonestar648

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Posted 05 December 2017 - 11:46 PM

It is what I thought, Amtrak received the binding decision and has to act accordingly.  When the second firing came to the Board, I would have thought red flags across the way would have been raised and a more indepth due diligence would have been required before issuing the second decision.






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