Amtrak Ordered to Pay Employee $162,000 for Retaliatory Discharge

[tom]

Amtrak Ordered to Pay Employee Compensatory, Puntitive Damages for Retaliatory Discharge in Historic Whistleblower Case

An Amtrak Coach Cleaner has been awarded substantial damages for retaliation by her employer for reporting an on-the-job ankle sprain. The U.S. Department of Labor ordered Amtrak to pay Nicole Anderson, a Seattle, Washington Amtrak employee, $60,000 in compensatory damages and $100,000 in punitive damages in a decision issued August 26, 2010.

Amtrak terminated Ms. Anderson's employment in November 2007 after she reported to her manager that she had sprained her ankle while working at Amtrak's King Street Station facility. While Amtrak claimed it fired Ms. Anderson for failing to exercise common sense, Administrative Law Judge Steven B. Berlin concluded otherwise, finding that Ms. Anderson established at trial that Amtrak retaliated against her in violation of the Federal Railroad Safety Act for reporting her work-related injury.

Explaining the $100,000 punitive damages award, Judge Berlin wrote, "Amtrak's conduct reflects a degree of conscious disregard for how its practices obstruct Congress' mandate in the Federal Rail Safety Act. Punitive damages are appropriate to correct and deter this conduct."

The U.S. Occupational Safety and Health Administration launched an investigation into the matter after one of Ms. Anderson's co-workers reported Amtrak's action to the agency's Seattle regional office. Amtrak reduced its discipline of Ms. Anderson from termination to a 30-day suspension without pay while OSHA's investigation was pending. Following a thorough investigation, OSHA concluded in October 2008 that Amtrak terminated Ms. Anderson in retaliation for reporting her ankle sprain, and ordered the railroad to pay Ms. Anderson her lost wages, expunge her employment file, and to pay Ms. Anderson $20,000 in punitive damages for its illegal conduct. Ms. Anderson returned to work at Amtrak in January 2008, where she still works today.

Amtrak appealed OSHA's decision to the U.S. Department of Labor's Office of Administrative Law Judges, and that appeal culminated in a trial de novo before Judge Berlin in June 2009. Attorney Fredric A. Bremseth represented Ms. Anderson at trial. This was the first case to be tried under a 2007 amendment to the Federal Railroad Safety Act, 49 U.S.C. §20109, that makes it illegal for railroads to retaliate against employees who report work-related injuries.

As the result of Amtrak's illegal conduct, Judge Berlin ordered the railroad to:

 

(1) Expunge Ms. Anderson's personal file of any disciplinary record or negative references related to her October 1, 2007 injury accident;

 

(2) Amend its disciplinary records to show no more than a verbal warning in connection with Ms. Anderson's late arrival at a safety meeting and expunge the 4-day suspension without pay that Amtrak imposed for that incident;

(3) Pay Ms. Anderson back pay in the amount of $2,666.67, plus interest from the date of termination until the date of payment at the rate prescribed by law;

(4) Pay Ms. Anderson $60,000 in compensatory damages;

(5) Pay Ms. Anderson $100,000 in punitive damages; and

(6) Pay Ms. Anderson for her attorneys' fees and costs.

 

"This is an historic case," said Attorney Bremseth, "that vindicates Congressional findings that railroads do in fact engage in retaliation and harassment of injured employees in order to keep them from reporting work-related injuries." Mr. Bremseth added, "we are very pleased for our client, and hope this landmark case will put railroads on notice that they can no longer intimidate their employees to keep them from reporting on-the-job injuries."

 

You can read Judge Berlin's Decision and Order on the U.S. Department of Labor's website:

http://www.oalj.dol....ARCHRESULTS.jsp

 

[Guest]

I would hardly call this a "Whistleblower" case. Most railroads require that you report an injury immediately. The coach cleaner was just following what was perceived to be following the rules. Another stumble for Amtrak. 60 Minutes had a story about a lady ticket clerk at New Haven, CT Apparently she had to work second shift and kept complaining about the lack of security when she went to get into her automobile. Well, she finally got mugged and sued Amtrak. She won a judgment of $900,000 which Amtrak refused to pay. This gutsy gal got the local law to seal and padlock an engine in the New Haven round house. They sent a courier with a check post haste; the courier FLEW from Washington into New Haven !!! :blush:

 

[tom]

I would hardly call this a "Whistleblower" case. Most railroads require that you report an injury immediately. The coach cleaner was just following what was perceived to be following the rules. Another stumble for Amtrak. 60 Minutes had a story about a lady ticket clerk at New Haven, CT Apparently she had to work second shift and kept complaining about the lack of security when she went to get into her automobile. Well, she finally got mugged and sued Amtrak. She won a judgment of $900,000 which Amtrak refused to pay. This gutsy gal got the local law to seal and padlock an engine in the New Haven round house. They sent a courier with a check post haste; the courier FLEW from Washington into New Haven !!!

Actually, it is a "Whistleblower" case.

Take a look at OSHA's fact sheets on the Whistleblower protections for railroad employees on OSHA's web site at http://www.osha.gov/...er-railroad.pdf and at http://www.whistlebl..._attention.html.

As you will see, these relatively new amendments provide important new protections to railroad employees for a variety of "protected activities." These protected activities range from reporting one's own one injury to reporting safety and fraud issues.

Congress added these protections as amendments to the Federal Railroad Safety Act after hearings disclosed widespread practices of intimidation harassment throughout the railroad industry. Hopefully, employees backed by OSHA and the U.S. Department of Labor will greatly reduce this type of illegal conduct.

 

[Anthony]

Kind of curious why member "tom" registered just to post this story? And by the way, "punitive" is misspelled in your headline.

 

[tom]

Kind of curious why member "tom" registered just to post this story? And by the way, "punitive" is misspelled in your headline.

Anthony,

I thought this issue might be of interest to members who also appear to be railroad employees, based on prior posts.

For example, “Save Our Trains Michigan” posted a statement by former UTU President Paul Thompson on September 20, 2007 in which Thompson called on Congress to “Strengthen whistleblower protections and permit conductors to refuse to authorize use of unsafe or hazardous equipment.”

On April 7, 2010, “JIS” opened a new thread entitled, “NJ Transit fined by OSHA,” which contained a link to a different FRSA Whistleblower case.

Please accept my apology for misspelling punitive.

Tom

 

[tp49]

My understanding is that Amtrak can appeal this decision to the US District Court. Though they may not based on the amount of the judgment.

 

[tom]

tp49,

Yes, but not to U.S. District Court.

Both parties have 30 days from the date of Judge Berlin's Order in which to file an appeal from that Order. If neither party files an appeal, Judge Berlin's Order becomes the final Order of the U.S. Department of Labor.

If an appeal is filed, it goes to the U.D. Department of Labor's Administrative Review Board ("ARB") in Washington, D.C. See 49 U.S.C. 20101(d)(4). You can read a copy of the statute at http://www.law.corne...09----000-.html.

Either party can appeal from the ARB within 60 days of the ARB's decision by filing an appeal with the Federal appellate court for the geographical area in which the claim arose. Since the claim in this case arose in Seattle, Washington, an appeal from the ARB in this case would go to the Ninth Circuit Court of Appeals.

The next potential and final level of appellate review would be the U.S. Supreme Court in Washington, D.C. But unlike lower level appeals, an appeal filed with the U.S. Supreme Court is discretionary, meaning that a majority of the U.S. Supreme Court would have to vote in favor of accepting the appeal.

Tom

 

[Devil's Advocate]

Kind of curious why member "tom" registered just to post this story?

Let's not stoop to AM radio style xenophobia here. If you have an substantive issue with the article or the judgement rendered I'd like to hear what it is for the record. Personally I'm heartened to hear that at least a few whistleblowers are potentially receiving additional protections against maltreatment since many of our former protections and safety nets have actually been rolled back in recent years. In most jobs, once you become a formal whistleblower your career is generally over for good. Your only hope is a judgement large enough to pay your bills while you train for a new career that may or may not be accepting of your past employment issues. Hopefully this judgment will not be overturned by the Roberts Court.

 

[Dutchrailnut]

The fun just begins, Amtrak was originally ordered to pay , way less but desided to take it to court, they lost ;-)

http://www.trainlawblog.com/2010/08/articles/federal-railroad-safety-act/the-disastrous-result-of-railroads-reflexive-appeal-of-frsa-awards/index.html

In October 2008 OSHA ordered Amtrak to pay $20,000 in punitive damages plus back pay to a coach cleaner in Seattle who experienced retaliation after reporting an injury. Amtrak's denial toward the FRSA blinded it to the merits of the case, and out of anger at being ordered to pay punitive damages it reflexively appealed for a ALJ trial. The trial was held in June 2009 before ALJ Steven B. Berlin, and now ALJ Berlin has just issued a 29 page Decision and Order (the first to be issued by an ALJ after a de novo FRSA trial).

 

[me_little_me]

The lesson for railroads is clear: angry denial is not a viable defense strategy. Until you take off your blinders of denial, until you let go of your anger at the FRSA's threat to your management culture of retaliation, this pattern will be repeated again and again.

The lesson may be clear to the railroads but to the bureaucrats at Amtrak, it is probably a non-issue. They don't pay.