Federal Administrative Law Judge Hits BNSF with Punitive Damages for Retaliating Against Safety Complaint

Last Wednesday U.S. Department of Labor administrative law judge Richard T. Stansell-Gamm issued a 70-page decision finding that BNSF illegally retaliated against our client for reporting that the three GP38-2 locomotives issued to him were dangerously rough riding. The Federal Rail Safety Act of 2007 prohibits railroads from firing, disciplining, or otherwise retaliating against employees who report on-duty personal injuries, unsafe equipment, and other safety hazards in good faith. Our client was the most senior locomotive engineer in his terminal. He used his seniority to bid onto and hold a local freight that went to work at 7 each morning and returned home by 5 each night. The job worked Monday through Friday; the crew had the weekends off. BNSF's witnesses admitted during the administrative hearing that this train was the best job in the terminal. In April of 2012 our client reported all three GP38-2 locomotives in his three-unit consist as unacceptably rough riding. By the time he made this report he had personally operated the north- and south-facing locomotives in the consist. Another crew member who was riding in the center locomotive told our client that locomotive was unacceptably rough as well. Additionally, the center locomotive had been downgraded to the center position following a rough ride report a few days earlier by this same crew, and BNSF had not yet inspected or repaired it. Meanwhile, the local BNSF trainmaster had traveled to company headquarters in Ft. Worth, Texas for meetings. He was in his hotel room in Ft. Worth when he learned the local crew had reported the locomotives assigned to them as dangerously rough riding. His superintendent of operations emailed him to ask how he intended to respond. He decided to abolish the job and start calling it off the extra board so no one could work it regularly. The superintendent of operations concurred. The trainmaster testified he did this because everyone in the terminal knew he was out of town, which meant his response to the rough ride report had to be "immediate." The superintendent of operations said BNSF abolished the job to avoid dealing with the union and to send the message to other crews in the terminal to "do your work and we'll leave the job on." The trainmaster was so angry about the crew's report that he did not even try to hide what he had done. He repeatedly admitted during the hearing that the crew's rough ride report "was the straw that broke the camel's back" and that he would not have abolished the job if they had not submitted the rough ride report. The trainmaster began the process of abolishing the local job from his hotel room in Ft. Worth that same night, without checking with the crew to find out why they had reported all three locomotives. Our client tried to return to main line service but could not do the work. On the advice of his treating physician, he took disability retirement. Soon after our client quit, BNSF re-bulletined the local -- which it had been calling off the extra board during the month of April 2012 -- as a daily job. The same trainmaster who had abolished the job set its new start time at 4am and warned all involved that no deviations from this start time would be tolerated without his express personal authorization. Judge Stansell-Gamm found that our client had engaged in protected activity under the statute, that BNSF knew he had engaged in protected activity, that BNSF's knowledge of his protected activity was a "contributing factor" in its decision to abolish the daily local, and that BNSF had not proved by clear and convincing evidence that it would have abolished the job anyway even if our client had not engaged in protected activity under the statute. The judge then explained that the facts required punitive damages:

In terms of deterrence, I recognize that [the trainmaster] did not intend to violate the FRS employee protection provision when he abolished the [daily local train], and that he no longer works for BNSF. However, even after six years experience as a trainmaster, he jumped to an incorrect conclusion based on unfounded assumptions and immediately responded with an adverse action without obtaining additional, critical information from the [daily local] crew. His inappropriate reflexive response clearly establishes that the safety report training he had received as a BNSF supervisor was insufficient in either content or frequency to make him fully understand: a) the special, and protected, character of hazardous safety condition reports under the FRS, and b) that even in times of operational stress and great customer demand his inherent supervisory responsibility to ensure safe railroad operations [in his territory] required a response to a hazardous safety condition report be based on facts, not assumptions. His decision-making process and actions the evening of April 15, 2012 also demonstrated a lack of awareness that taking immediate adverse action affecting an employee's terms and conditions of employment based in part on an assumption of bad faith actually poses a significant risk to railroad safety itself by discouraging other BNSF employees from making hazardous safety condition reports. Accordingly, to deter other BNSF supervisors from making a personal assumption of bad faith and taking immediate adverse personnel action in response to an employee's hazardous safety condition report, due to insufficient supervisory railroad safety training, and considering that the amount of back pay for which BNSF is liable in this case is de minimis, I find an award of $25,000 in punitive damages is warranted.

Decision, p.65. BNSF will also have to pay our client's reasonable costs and attorney's fees.

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