Rail Law Blog

Ziparo v. CSXT - 2nd Circuit Expands Scope of Protection Under FRSA

Cody Ziparo worked as a Conductor for CSX Transportation, Inc. in Watertown, New York. CSXT utilized an "On-Board Work Order System" (OBWO) at this location, which requires the train crew to record tasks into a tablet computer as they are completed to allow its customers to track the status of their orders. Supervisors are paid bonuses at CSXT in part for the performance of their crews as measured by the OBWO system. Ziparo and other employees were pressured by their supervisors to falsely enter tasks into the OBWO system that were not completed so the supervisors could increase their bonus. Ziparo resisted the request and told his supervisors that he did not feel comfortable entering false information. He and his engineer complained repeatedly that the ongoing anxiety caused by the supervisors' pressure was creating a safety concern, as Ziparo became more and more distracted at work. On May 3, 2016, Ziparo made a formal complaint against his supervisors with CSXT Ethics Hotline, stating that the pressure from his supervisors was "a safety issue because employees are not focused on their work and are preoccupied with the harassment coming from [the supervisors]." A few days later, a train ran through a misaligned switch and caused serious property damage. Records indicate that Ziparo was the last employee to operate the switch. After a company investigation, Ziparo's employment was terminated.

Ziparo filed suit against the railroad under the Federal Rail Safety Act (FRSA) pursuant to Section 20109(b)(1)(A), which provides that "[a] railroad carrier...shall not discharge...or in any other way discriminate against an employee for...reporting, in good faith, a hazardous safety or security condition." Ziparo alleged that his termination was motivated at least in part by his complaints against his supervisors. The lower court dismissed the claim because it found that it was not objectively reasonable for Ziparo to believe that his own reported stress was a "hazardous safety or security condition" and because a hazardous condition under the FRSA is a "physical condition that is within the control of the rail carrier," not an employee's own stress.

In a decision that greatly expands protection for workers under the FRSA, the Second Circuit Court of Appeals reversed the decision. The court distinguished between a report of a hazardous safety condition that is done in "good faith" with one that is "reasonable." The former is a subjective standard, requiring only that the actor's state of mind when making the complaint be "with honesty or sincerity of intention." The latter is an objective standard. The actor's state of mind is irrelevant -- a "reasonable" complaint is one that is "fair, proper, or moderate under the circumstances." One may hold a sincere belief or undertake an act in good faith, but it still may be objectively unreasonable. The court held that actions brought under Section 20109(b)(1) need only be subjectively in good faith based on the language of the statute -- there is no language requiring the report be reasonable. Cases holding that such reports also be reasonable "all share a common analytical flaw. Specifically, in concluding that "good faith" as used in §20109(b)(1)(A) contains an objective reasonableness element, the district courts have relied on various appellate decisions interpreting other whistleblower statutes that include specific language, absent from §20109(b)(1)(A), that requires objective reasonableness." Requiring only a good faith belief, and expanding the protections of this section of the FRSA, is consistent with the statute's stated purpose: "to promote safety in every area of railroad operations and reduce railroad related accidents and incidents." Under a subjective standard, Ziparo can make out a valid claim if it is found that he made a good faith safety complaint, with honesty or sincerity of intention. It doesn't matter whether his belief, if sincere, was reasonable. Good faith only requires that Ziparo actually believes that the facts he is reporting are true and constitute a hazardous safety or security condition.

The court further held that a hazardous safety or security condition is not limited to only physical conditions that are within the control of the railroad carrier. Such a restriction is not included in the language of the statute, and such a limitation would unduly limit the scope of protections available to workers not intended by Congress. The court cited examples that would be improperly excluded from coverage based on the district court's finding, such as complaints that a supervisor fails to perform safety checks, or performs them under the influence of drugs or alcohol. Further, an employee's stress or fatigue can create dangers, which is why safety regulations limit the hours of service of rail employees. The only implicit limitation on hazardous safety or security conditions recognized by the court is that they involve the operation of the railroad.

The Ziparo decision overrules several district court opinions that require complaints that fall under Section 20109(b)(1) to be objectively reasonable. Removing such a requirement greatly expands protections of the FRSA, and furthers the goal of promoting safety in every area of railroad operations and reducing accidents and incidents.


One response to “Ziparo v. CSXT – 2nd Circuit Expands Scope of Protection Under FRSA”

  1. On November 4, 2021, the 8th Circuit Court of Appeals joined the 2nd Circuit in holding that a good faith report of a hazardous safety condition under this provision of the FRSA need not be objectively reasonable. See Monohon v. BNSF Railway Co. – https://ecf.ca8.uscourts.gov/opndir/21/11/183346P.pdf

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