Railroad Employee with Safety Concern Has Retaliation Judgment Reinstated

By Jeffrey Rhodes January 12, 2022
Railroad Employee with Safety Concern Has Retaliation Judgment Reinstated

A railroad inspector who was fired shortly after reporting that wearing a seat belt while driving a "hy-rail vehicle" could be dangerous had a valid retaliation claim, the 8th U.S. Circuit Court of Appeals ruled. 

The plaintiff worked as a railroad track inspector for BNSF Railway Co. in southern Iowa. The plaintiff drove a hy-rail, which is a pickup truck that can operate both on pavement and on railroad tracks. It is equipped with conventional truck wheels with rubber tires, as well as with flanged steel wheels that fit on railroad tracks.

To set a hy-rail on tracks, a track inspector drives to a crossing, lines up the rail wheels with the track, and then uses the hy-rail's hydraulic system to lower the rail wheels onto the tracks. The inspector thereafter raises the truck wheels and locks the steering wheel. Once a hy-rail is "set on," it does not require steering because the rail wheels follow the tracks.

The plaintiff testified that he operated his hy-rail at speeds up to 20 miles per hour. With their steel wheels on steel tracks, hy-rails cannot stop quickly, particularly when the tracks are lubricated with oil or precipitation. A hy-rail can be removed from the tracks only at crossings. 

Hy-rails have seat belts like any pickup truck. BNSF requires its employees to wear seat belts when they operate hy-rails. BNSF did not consistently enforce the seat belt rule, however, and did not treat the failure to wear a seat belt as a serious rules violation but as an operations test failure, with the discipline being coaching or counseling on the rule. 

During a conference call, the BNSF roadmaster reiterated the seat belt rule, reminding his employees that they were required to wear seat belts when operating hy-rails. He explained that there recently had been two serious accidents involving BNSF hy-rails running into the back of trains, one resulting in the death of a track inspector who had not been wearing his seat belt. 

After hearing the roadmaster's directive and briefing, the plaintiff expressed his concern about wearing a seat belt while hy-railing, questioning the safety of the rule in the event a train is approaching a hy-rail and the seat belt restricts the inspector from quickly bailing out. The roadmaster responded that he understood the concern but that the rule must be followed.

The next day, the plaintiff was tasked with moving trackside postings. The plaintiff exited and entered his hy-rail several times as he adjusted the boards. The plaintiff was waved down by a line chief and assistant roadmaster, who noticed that the plaintiff was not wearing his seat belt. The plaintiff looked down and realized that he was not doing so. The plaintiff admitted his oversight, explaining that he had fastened his seat belt when he entered his hy-rail that morning but that he had been in and out of his hy-rail several times that day. The line chief mentioned the recent hy-rail accidents and asked the plaintiff to fasten his seat belt, which he did. 

After telling the plaintiff that he would receive an operations test failure, the line chief asked the plaintiff to commit to wearing the seat belt in the future. The plaintiff replied that he worried that his fastened seat belt would prevent him from being able to quickly bail out of the hy-rail if a train approached. At that point, the line chief sent the plaintiff home for the day.

BNSF held an investigative hearing into the plaintiff's conduct that day and decided to fire him for insubordination. The plaintiff sued, alleging that BNSF violated the Federal Rail Safety Act (FRSA) when it discharged him for reporting, in good faith, a hazardous safety condition. The district court denied BNSF's motion for summary judgment, and the case proceeded to trial. 

A jury found in favor of the plaintiff and awarded back pay. The district court also awarded three years of front pay. The district court thereafter granted BNSF's motion for judgment as a matter of law, concluding that the plaintiff's claim to have reported a hazardous safety condition was not objectively reasonable and was not supported by the facts of this case.

On appeal, the 8th Circuit found that the plaintiff had made a good-faith report of a safety issue shortly before his firing. It decided that the report did not have to be objectively reasonable for the plaintiff to be entitled to protection. It thus reversed the district court and restored the jury's verdict. It also ordered the district court to consider reinstatement as a remedy. 

Monohon v. BNSF Railway Co., 8th Cir., No. 18-3346 (Nov. 4, 2021).

Professional Pointer: Employers should think twice before disciplining an employee shortly after reporting what the worker honestly believes to be a safety concern. 

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.



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