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Federal Appeals Court Awards Damages to Pan Am Railways Employee

May 17, 2017
Commercial railroad company Pan Am Railways has been ordered to pay punitive and compensatory damages after retaliating against a worker who filed an FRSA complaint.

Pan Am Railways Inc. violated the Federal Railroad Safety Act after retaliating against a worker who tried to report an injury and later filed a complaint.

Because of this, a federal appeals court ruled that the North Billerica, Mass.-based company must pay $260,000 in punitive and compensatory damages to the employee.

"A safe and healthy workplace is a goal we should all aspire to achieve," said Michael Felsen, the department's regional solicitor of labor for New England in a statement. "Discriminatory actions by employers, including but not limited to retaliation, can freeze employees into silence. Hazardous conditions can go unreported as a result, and lead to avoidable human and financial costs."

In 2011, the worker injured his left ankle while working as a conductor for Pan Am. According to case documents, he was riding the side of a boxcar and told the engineer to stop at an upcoming switch. When he stepped off the car, he rolled his left ankle on some discarded ties. Doctors found he sprained his ankle, leading to a missed day of work.

Pan Am Railway charged the worker with violating its safety rule which states, "Employee must: . . . b. Before getting on and off, carefully observe ground condition and be assured of firm footing.” The company then issued a formal reprimand to the employee, at which point he contacted an attorney who drafted the FRSA complaint.

The statement the worker provided in the FRSA complaint differed from his description of the accident at the investigative hearing. According to court documents, the worker said he did not fall but rather sat down after he rolled his ankle during the initial hearing. In the FRSA complaint, he stated that as he stepped down from the car he “fell hard to the ground injuring his left ankle.”

In response, Pan Am Railways sent the employee notice of a second disciplinary hearing saying the conflicting statements, "raised the possibility of additional rule violations, and if subsequent information discovered changed the cause of the injury, the company would be legally required to file an amended report with the Federal Railway Administration."

The worker amended his FRSA complaint to include the whistleblower retaliation allegation, saying that no one from the company approached him  and provided an opportunity to explain any discrepancies prior to the hearing. 

According to the case documents, in August 2013, the regional administrator for OSHA found that there was no reasonable cause that Pan Am retaliated against the worker for reporting safety hazards or for reporting an injury. However, there was reasonable cause to believe that Pan Am retaliated against the employee for filing an FRSA complaint because the second investigative hearing is considered an "adverse action" under federal law even though no disciplinary action was taken.

The department originally ordered the railroad to take corrective actions and pay the affected employee $10,000 in compensatory damages and $40,000 in punitive damages. Pan Am Railways appealed, and in 2014, an administrative law judge upheld the agency's finding of retaliation and increased the amount of punitive damages to $250,000, according to OSHA.

The company again appealed to the department's Administrative Review Board which affirmed the judge's order. It then appealed to the U.S. Court of Appeals for the First Circuit, which denied the railroad's petition on April 21.

"This case is a strong reminder that our whistleblower laws prohibit reprisals against employees who file whistleblower complaints, report workplace injuries and illnesses, or raise awareness of hazardous safety or security conditions," said Galen Blanton, OSHA's New England regional administrator in a statement.

OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime and securities laws.

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