Law Office of H. Chris Christy, PA

Sweatt v. Union Pac. R.R. Co., 2016 U.S.Dist. LEXIS 3609 (ND Ill January 12, 2016)

OSHA's Summary of Final Rules for FRSA cases states that in order for a complaint to be timely, it must be filed with OSHA within 180 days of when the alleged violation occurs.  This is considered to be when the retaliatory decision has both been made and communicated to the employee.  In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer's decision to take an adverse action, not when the employee learns of the retaliatory nature of the action.

The district court in Sweatt just confirmed that once the 180 day period has closed, it cannot be reopened for the same adverse action.  In Sweatt, the railraod refused to pay for a surgery necessitated by an employee's work related injury.  Well over 180 days later, the employee reiterated his demand that the railroad pay for the surgery.  The railroad again refused, prompting Sweatt to file an FRSA complaint with OSHA.  The Court rejected this attempt to reopen the 180 day window stating that the railroad's second denial "changed nothing" and "did not injry the employee afresh."

Employees should note that a 180 day window opens for each "discrete act" of retaliation.  Such discrete acts include the filing of disciplinary charges, suspension, termination, failure to promote, denial of transfer, or refusal to hire.  The window opens when the employee learns of such a discrete act, and closes 180 days later.  The window cannot be reopened for that same adverse action.

Fricka v. National R.R. Passenger Corp., ARB Case No. 14-047 (Nov. 24, 2015)

The Administrative Review Board has expanded the definition of an adverse action yet again.  In Fricka v. National Railroad Passenger Corporation, the ARB has determined that FRSA adverse action extends past the limits of a Title VII claim and BNSF v. White.  The following actions have specifically been enumerated by the Board:

  • Merely threatening discipline against an employee who engages in FRSA protected activity;
  • Not paying an employee’s medical bills after misclassifying or reclassifying a work related injury as non-work related: “We conclude as a matter of law that Amtrak’s reclassification of Fricka’s injury as non-work related was unfavorable and more than trivial because it led to Amtrak not paying Fricka’s medical bills.”
  • A drop in an employee’s performance rating, even if it does not reduce the employee’s pay or salary;
  • Any other unfavorable employment action that is more than trivial, either as a single event or in combination with other deliberate employer actions.