A recent federal Department of Labor administrative law judge (“ALJ”) decision highlights the tactics railroads use against their employees and one possible statutory remedy for those tactics. Jonette Nagra v. National R.R. Passenger Corp., Case No. 2012-FRS-74 (10/29/2013).Amtrak Engineer Jonette Nagra had a neck injury but wanted to keep her railroad career if possible. Her treating neurosurgeon noted she was highly motivated to return to work. Temporarily, however, the doctor wouldn’t let her work. Her three-year statute of limitations was running. Because it was unclear if she could ever return to work, she filed an FELA case. In that case she alleged permanent disability. For reasons that aren’t clear from the ALJ decision, the court that was presiding over her FELA case dismissed it. That meant she didn’t get any money for it by settlement or judgment.But Amtrak wasn’t done with Nagra yet. The railroad’s in-house lawyer, its outside lawyer, and several middle managers in labor relations disliked Nagra. They saw her FELA case as a chance to be rid of her forever. When the treating neurosurgeon eventually decided she had recovered well enough to return to work, the railroad refused to allow her to do so. Amtrak justified this under its so-called “estoppel policy.” “Estoppel” is a legal principle that prevents a person or company from saying one thing and then changing position after somebody else has relied on the first position. There are several different kinds of estoppel but generally they all require somebody to have changed positions or otherwise relied on the first position. The purpose of these estoppel principles is to prevent people and companies from talking out of both sides of their mouths.The people at Amtrak who didn’t want Nagra back said it didn’t matter whether her neurosurgeon now said she could return to work. They said she was stuck with the allegation in her now-dismissed FELA lawsuit that she was permanently disabled. They said she had alleged in the FELA case that she wouldn’t ever be able to return to work, so now it didn’t matter that her doctor had concluded she had had a remarkable recovery and was ready to mark up again.The particular kind of estoppel that applies to the allegations people make in lawsuits is called “judicial estoppel.” It has several elements, all of which have to exist or the doctrine doesn’t apply. One of the elements requires proof that the person or company who is supposedly talking out of both sides of their mouth prevailed in litigation on the claim they are now trying to disavow.But Nagra didn’t prevail. Her FELA lawsuit was dismissed. She got nothing for it. And the people at Amtrak who didn’t want her back knew she didn’t prevail in the lawsuit, because they met with the claims representative to congratulate her for “zeroing out” Nagra’s FELA claim.Despite this, they refused to allow Nagra to return to work even after her treating neurosurgeon reviewed her job description and said in writing that she could safely do the work. They didn’t apply any FRA standards. They didn’t apply any internal Amtrak standards. They didn’t have any medical evidence of their own. They simply decided the treating neurosurgeon had been right when he said earlier that she couldn’t return to work, and that he was wrong when he decided at the end of her medical care that she had had a remarkable recovery that permitted her to return to work. They said the doctor’s written opinion that Nagra could return to work was “disingenuous.” In other words, they picked and chose from the medical records. And as is usually the case when railroad middle managers play doctor, none of these people went to medical school.This is the kind of good faith and fair dealing you may be up against if you have the audacity to suffer an injury at work that isn’t your fault. Twenty years ago, Nagra might have been stuck with this and her railroad career might be over. Today, she has a remedy.Nagara filed a retaliation claim under the Federal Railroad Safety Act (“FRSA”). A Department of Labor ALJ heard the evidence and decided the case. The FRSA provides:
(2) Discipline.–A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier’s refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to Federal Railroad Administration medical standards for fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier’s medical standards for fitness for duty. For purposes of this paragraph, the term “discipline” means to bring charges against a person in a disciplinary proceeding, suspend, terminate, place on probation, or make note of reprimand on an employee’s record.
49 U.S.C. § 20109(c). The ALJ explained that this section means what it says: if the treating physician says the employee can return to work, the railroad must allow it, unless FRA standards or the railroad’s own internal standards say otherwise. Here, Amtrak didn’t rely on FRA standards or any internal standards of its own. Its desire to punish Nagra for having filed her FELA case and make an example of her to discourage other employees didn’t qualify. Therefore Amtrak lost the case and Nagra won.