How to Prove an FRSA Whistleblower Violation without a Smoking Gun
You have been suspended from work or terminated, and you know it’s because you reported that injury, or because you put in one too many safety reports and trainmasters were targeting you. But how do you prove it when there’s no smoking gun – no statement from management that you’re being fired for reporting your injury or safety complaint? Courts recognize that smoking gun evidence, conclusive evidence of wrongdoing, is typically unavailable cause employers are rarely so cooperative as to include a notation in your file that your discipline is for a reason expressly forbidden by law. Obviously, it is very infrequent that a railroad admits not just to possessing an impermissible motive, but also to acting on it. So proving you were terminated for making an injury or safety report is done most often through circumstantial evidence.
Circumstantial evidence is not only sufficient, but may even be more certain, or more persuasive. Circumstantial evidence that your protected activity, such as reporting injuries or safety complaints, contributed to your discipline may include several factors. First is temporal proximity. If the railroad charges you with rules violations shortly after you report your injury, that indicates the reason for the discipline was the injury report. Second are indications of pretext. When the railroad is vague about what you did to violate the rules, or its witnesses give contradicting statements about what occurred, that shows the reason for the discipline is not what the railroad is claiming. Third is an inconsistent application of the railroad’s policies. If the hammer is coming down hard on you, and a co-worker who committed the same violation a year ago but never reported a safety violation got off easy, that indicates the reason for your discipline was your safety report. Fourth is a railroad’s shifting explanations for its actions. When the railroad first charges you with one violation and then changes its mind to charge you with something else, that indicates that neither of the reasons the railroad gave is the real reason for the discipline.
Fifth is antagonism or hostility toward your protected activity. If your trainmaster tells you, “Don’t bring that BS to me,” when you make a safety complaint, or tells you that you should say your injury happened at home, it shows that any discipline you receive is related to what management was really upset about – your protected activity. Sixth is the falsity of the railroad’s explanation for the discipline. If you can prove there is no way you committed the rule violation you are charged with, and the railroad knew it, then it’s clear the railroad was really motivated by your record of safety complaints. Finally, are changes in the railroad’s attitude towards you after you engaged in protected activity. When you make an injury report, and the trainmaster who you used to be friendly with now won’t look you in the eye because you messed up his numbers for the year, it tends to show that the discipline you received was for reporting that injury.
Proving you were discriminated against because of your protected activity under the FRSA is obviously a tricky business. That is why you need experienced FRSA attorneys with knowledge of railroads and their practices to represent you when you are suspended or terminated from work, and you know it was for an unlawful reason.
