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A railroad that investigated an accident after reimbursing an injured employee and then fired the employee for negligence and theft did not retaliate under the Federal Railroad Safety Act, the 7th U.S. Circuit Court of Appeals ruled.
Michael Koziara worked for BNSF Railway Co., the second-largest North American freight railroad, as a track foreman supervising crews responsible for track maintenance.
The Federal Railroad Safety Act forbids a railroad from discharging or otherwise discriminating against an employee for conduct protected by the act, including notifying the railroad that he has suffered a work-related injury. On Sept. 9, 2010, Koziara was supervising a crew removing and reinstalling planks on part of the line at a railroad crossing when he was injured.
To remove crossing planks, the large wooden screws, or "lags," are removed with a hydraulic tool before the plank is lifted. With Koziara's approval, a crew member used a front-end loader to remove the plank, which caused the plank to fly loose just as Koziara was walking into the center of the track, and to strike one of his legs. Koziara went to his doctor and learned that he had fractured his shinbone. He submitted a report of the injury to management, and the company accepted the report and paid his medical bills.
Under BNSF's policies, employees must "be careful to prevent injuring themselves" and not be "careless of the safety of themselves." BNSF thus requires an investigation of all reported injuries by staging a re-enactment of the accident in order to learn how it happened. Koziara's supervisor staged the re-enactment and concluded that Koziara had been careless in walking into the crossing while the front-end loader was trying to remove the plank, thus placing himself in danger of being hit by the plank as it came off the ground.
A week after the re-enactment, a member of the crew that Koziara had been supervising told Koziara's supervisor that he thought Koziara might have been injured 10 days before the incident while removing railroad ties from railroad property.
The supervisor requested a preliminary investigation of the allegation, which concluded that theft charges were warranted. According to the railroad's collective bargaining agreement with the union, the company conducted a formal investigation presided over by railroad managers.
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For his carelessness (which had cost the company the medical expenses), the company issued a 30-day suspension. But that decision quickly became moot because the company also decided that Koziara should be discharged because of the theft, consistent with company policy.
Koziara argued that his supervisor had given him permission to take the ties, which he planned to give to a friend who had a farm. The supervisor testified that he had never given such permission. Because the railroad ties were soaked in creosote, which is hazardous and not approved for residential use, it was especially unlikely that the supervisor would have done so.
Both the Railway Labor Act and the collective bargaining agreement entitled Koziara to appeal his 30-day suspension and discharge to the National Railroad Adjustment Board, an arbitral body established pursuant to the act.
Koziara appealed, but the board denied both appeals. He then filed a complaint with the Occupational Safety and Health Administration (OSHA), but the agency rejected his complaint on the same grounds as the board. Koziara appealed OSHA's finding and was allowed to file a lawsuit in federal court.
Koziara accused the railroad of having retaliated against him for notifying it that he had suffered a work-related personal injury, incurring medical expenses that the railroad might be required to cover. He argued that the railroad never would have discovered the theft had he not filed an injury report.
The district court agreed with Koziara, and a jury awarded damages to Koziara for retaliation by BNSF. On appeal, however, the 7th Circuit reversed the decision and dismissed the lawsuit, finding that Koziara had not proven that his reporting of the accident was the cause of his suspension and termination. Rather, the re-enactment (and not Koziara's injury report) uncovered evidence of negligence and misconduct by Koziara that BNSF relied upon to discharge him.
The 7th Circuit further noted that the small amount of medical expenses involved could not be expected to motivate retaliation by a large employer like BNSF.
Koziara v. BNSF Railway Co., 7th Cir., No. 16-1577 (Oct. 31, 2016).
Professional Pointer: An employee can assert a retaliation claim merely by showing that his or her employment terms became worse shortly after making a protected complaint or report. An employer may still prevail, however, if it can show that the employee's own misconduct or other factors separate from the protected complaint or report caused the change in employment terms.
Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.
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