OSHA Orders Reinstatement of Fired Greybull, WY BNSF Conductor

On Behalf of | May 15, 2014 | Firm News

In a May 15, 2014 “merit finding,” the Occupational Safety and Health Administration has concluded that BNSF illegally retaliated against Greybull, Wyoming conductor Cory Hodge for reporting a work-related injury. The OSHA decsion orders BNSF to reinstate Mr. Hodge with back pay retroactive to March of 2010, pay him emotional distress damages, and pay his attorneys’ fees. The OSHA decision explains that Mr. Hodge missed work in February of 2009 with back pain which he did not realize was work-related. He notified his trainmaster that he needed time off because of back pain. A year later, he missed work again because of back pain and again notified his trainmaster.  A few days later he told the trainmaster he believed he had a work-related back condition and asked to fill out a BNSF personal injury report. BNSF allowed him to report the injury. Then it noticed him up for investigation and fired him for supposedly reporting the injury late and for supposedly lying on his 2010 personal injury report about the precise dates of his visits to various doctors in 2009. Like most normal people, Mr. Hodge had no reason to acquire or read his own medical records. He didn’t have those medical records in front of him when he filled out the personal injury report in 2010. The personal injury form asked him for the names and dates of the doctors he saw for the injury. He responded with the names of the doctors he saw in 2009 and his best estimate of the dates he saw those doctors. Nothing on the form or anything the trainmaster told him while filling it out warned him he needed to provide anything other than estimates of those dates. Nothing on the form or anything the trainmaster told him while filling it out warned him his career would hinge on providing the exact dates rather than estimates. BNSF was unable to explain at the investigation or to OSHA how having those precise dates on the personal injury form would have made any difference. Once BNSF had Mr. Hodge’s estimate of the dates on the personal injury form, it put its safety director and company nurse to work gathering his 2009 medical records. Mr. Hodge, of course, didn’t have the help of the company safety director, the company nurse, or the medical records when he sat down to fill out the personal injury report in 2010. BNSF presented these medical records at his investigation. The company official who was serving as prosecutor and judge at the investigation admitted them into evidence. BNSF then used them to conclude his estimates of the dates of the doctor visits in 2009 were willful lies. OSHA’s decision finds that Mr. Hodge had a federal right to report his personal injury and that his attempt to do what the law permitted was at least a contributing factor in BNSF’s decision to fire him. Congress assigned OSHA to investigate such claims of retaliation because of OSHA’s experience and expertise with similar retaliation in other industries. Ironically, just a few days before BNSF fired Mr. Hodge,OSHA issued an important announcement warning railroads that OSHA intended to scrutinize closely and carefully any discipline imposed for alleged late reporting of injuries, because the alleged timing issue could all too easily be used as a pretext to cover up retaliation for the injury report itself. A copy of the entire merit finding is available here. [gview file=”/wp-content/uploads/2014/05/2014-05-15-OSHA-Merit-Finding-in-Hodge-v-BNSF1.pdf”]