A federal judge in Chicago recently denied a railroad’s motion for summary judgment in an action brought by our client under the Federal Rail Safety Act (“FRSA”). The facts of the case are familiar to those who work in the railroad industry – an employee makes multiple safety complaints to his supervisors and reports an on-duty injury, creating a target on his back, and at the first instance the railroad finds he may have violated a rule, he is unfairly terminated. The judge rejected the railroad’s argument that the case should be dismissed. She concisely summarized the events leading to his dismissal as follows:

“[The employee’s] contention is not that [his manager] or any other supervisor at Soo Line sat down and, pondering the report about the Bensenville ballast, decided that it was time for him to go. Rather, [the employee’s] claim is that Soo Line’s transition to precision-scheduled railroading made it imperative for the company to keep trains on time at all costs. Under that regime, his tendency to be safety-conscious – of which these five report are prominent examples – led him to become, in management’s eyes, a troublesome employee. This built up a run of what [the employee] claims was unwarranted discipline in the year before spring 2023, and it culminated with his report about the plow on April 14, which broke the camel’s back and led to his firing, with Soo Line using the two disciplinary hearings as pretext.”

The decision covers several legal issues prevalent in FRSA cases. First, the Court followed Ziparo v. CSX Transportation, Inc. and held that the employee only needed a subjective belief that the condition he was reporting was hazardous for it to be considered protected activity under the FRSA. At the start of his shift, the employee noticed that the metal plow on his locomotive was jagged and broken in spots. He reported the condition to the mechanical supervisor to ensure that the plow was compliant with federal regulations. The railroad argued that his complaint about the plow was not reasonable because later inspection showed the plow was safe. The Court, following Ziparo and other FRSA cases, held that to make out a case under the FRSA, the employee did not have to show reasonableness – he only must establish that he had a good faith, subjective belief that the plow might be unsafe for FRSA protections to arise.

The Court also discussed who needs to know about the employee’s safety complaints before the railroad can be held liable under the FRSA. Soo Line argued that because the decisionmaker who signed the termination letter – in this instance, a vice president – was unaware of the employee’s protected activity, then the railroad cannot be liable for retaliation under the FRSA. The Court rejected that argument, finding instead that an employee need only show that the carrier as a whole was aware of the protected activity. The Court recognized the potential for railroad abuse if its argument on this issue was accepted. “Restricting the knowledge element to a single decisionmaker would allow railway carriers to limit their liability by distributing firing decisions among various managers, as the decision to fire [the employee in this case] was distributed among various managers. Distributing decisionmaking like this would allow a manager who was aware of the protected activity to recommend an employee be fired to a manager who had been insulated from that knowledge. The rail carrier would then point to that final decisionmaker’s lack of knowledge as an impenetrable defense, even though the firing had in truth been motivated by protected activity.” Railroads commonly employ this tactic through labor relations departments that are separated from the trainmasters and managers on the property. The Court recognized and rejected the railroad’s attempt to do so in this case.

Ultimately, the Court rejected the railroad’s arguments that the case should be dismissed and will allow the matter to proceed to a jury trial.