Worker’s Sprained Ankle Leads to $250,000 Punitive Damage Award for Retaliation

A railroad challenged a worker after the worker filed an OSHA complaint on grounds that he lied in that complaint about precisely how his on-the-job accident occurred (based on a discrepancy between the complaint and his prior version of the events).  An ALJ concluded that those charges of dishonesty amounted to unlawful retaliation against the employee for filing the OSHA complaint and awarded $250,000 in punitive damages (the statutory maximum).  The DOL Administrative Review Board found that substantial evidence supported the ALJ’s decision, and last week, the First Circuit agreed.

The injury that started this chain of events is, on its face, innocuous.  A conductor severely sprained his ankle and missed work as a result of stepping off a train onto a pile of railroad ties.  Several weeks earlier, he had reported the same pile as a tripping hazard to his manager but the pile had not been removed.  Because he missed a day of work, the railroad had to report the injury and its cause to the Federal Railroad Administration.  When he returned to work, his superintendent told the worker that the missed day likely would lead to a hearing because it was a reportable injury.  At the hearing, the worker testified he stepped down from the train cautiously but nonetheless had lost his balance on the unstable pile, and that he caught himself and sat down on the ground.  The railroad’s vice president of transportation sent the worker a letter a few days later indicating that he had failed to assure himself of firm footing and that the letter served as “discipline in the form of a formal reprimand” and was being placed in his personnel file.

Two weeks later, the worker filed an OSHA complaint accusing the railroad of retaliating for his reporting of the safety hazard and for reporting his injury.  The complaint, drafted by the worker’s lawyer, stated that the worker “fell hard to the ground” at the time of the injury.  Because of this discrepancy, the railroad brought a second set of disciplinary charges against the worker and held another hearing, but after the worker explained the apparent discrepancy at the second hearing, the railroad did not sustain the additional charges and took no further action.

A few months later, OSHA rejected the worker’s claim that the railroad retaliated against him for reporting the safety hazard (finding that the railroad would have reprimanded the worker if it had observed the incident even if no injury had occurred).  OSHA, however, agreed that the railroad unlawfully retaliated against the worker by bringing the second set of charges.  OSHA concluded that the railroad had not demonstrated with clear and convincing evidence that it would have taken the same adverse action even if the worker had not filed the OSHA complaint.  The ALJ, in a de novo hearing, agreed with OSHA and awarded the worker $10,000 for emotional distress and $250,000 (the statutory maximum) in punitive damages because the railroad had “utilized the [disciplinary] process to intimidate and discourage protected activity, not only by [this worker], but [by] other employees” as well.

On judicial review, the First Circuit found the closer question to be the award of punitive damages but ultimately concluded that the amount of the award was not an abuse of discretion.  Citing the broad discretion afforded to the ALJ, the First Circuit noted the following facts in support of the award:  the railroad exaggerated the seriousness of the supposedly “major” discrepancy, the railroad’s choice to charge the worker with dishonesty was made not by a low-level manager but by its corporate legal department and a Vice President, the railroad chose not make use of OSHA’s fact-finding process to address the discrepancy and instead threatened the worker with the dishonesty charges, and the railroad appeared to the ALJ to have a corporate culture more focused on retaliation than on safety: the ALJ found that 99% of the railroad’s injuries that were reportable to the FRA triggered formal charges against the injured employee, in stark contrast to the railroad’s “apparent nonchalance about its own responsibility to improve safety and remove hazards like the one [the worker] reported.”

The case is No. 16-2271 in the U.S. Court of Appeals for the First Circuit.



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