A jury has awarded $1.25 million to a whistleblower who suffered retaliation for disclosing safety violations to BNSF Railway and federal authorities. The verdict includes $250,000 in punitive damages, the maximum punitive damages award authorized under the FRSA.
According to the complaint, Mr. Elliott reported a number of potential signal-related safety violations to BNSF management and Federal Railroad Administration (FRA). The territory in which most of the safety violations took place was overseen by Mr. Kautzmann. Following an investigation, the FRA found several violations, including 245 track, switch and turnout defects and 112 signal system defects. Some of the violations resulted in civil penalties.
When Mr. Elliott was off duty, Mr. Kautzmann followed Mr. Elliott outside into the parking lot, and provoked him by jumping onto the hood of Mr. Elliott’s car while Mr. Elliott was driving his vehicle to exit the parking lot. Mr. Kautzmann alleged to police that Mr. Elliott assaulted him. Mr. Elliott was arrested for assault and was acquitted at trial. BNSF used this incident to terminate Mr. Elliott’s employment by accusing him of failing to report an off the job occurrence relating to his licensure as a locomotive engineer.
The Federal Railroad Safety Act prohibits retaliation against a railroad employee who provides information to a regulatory or law enforcement agency, a member of Congress, or any person with supervisory authority over the employee about a reasonably perceived violation of federal law relating to railroad safety or security, or the abuse of public funds appropriated for railroad safety. In addition, the FRSA protects an employee who:
- refuses to violate a federal law, rule or regulation related to railroad safety or security;
- files a complaint under FRSA;
- notifies or attempts to notify the railroad carrier or Department of Transportation of a work related personal injury or illness of an employee;
- cooperates with safety or security investigations conducted by the DOT, Department of Homeland Security, or National Transportation Safety Board;
- furnishes information to the DOT, DHS, NTSB, or any federal, state or local law enforcement agency regarding an accident resulting in death or injury to a person in connection with railroad transportation; or
- accurately reports hours on duty.
A prevailing whistleblower can obtain a wide range of remedies, including: (1) reinstatement, (2) back pay, (3) compensatory damages, (4) attorney fees and litigation costs; and (5) punitive damages up to $250,000.