In May 2016, a jury trial resulted in a $1.6 million verdict for a Federal Railroad Safety Act (FRSA) whistleblower. Under the FRSA, whistleblowers need only show that their protected activity was a contributing factor to the termination decision. The whistleblower’s burden under the FRSA is lower than in many other whistleblower statutes, which require that the protected activity be a motivating or substantial factor in the termination decision.

The FRSA Whistleblower Claim

Curtis Rookaird was a conductor for BNSF in Washington. In February 2010, Rookaird conducted an air brake safety check on a train carrying hazardous materials. When Rookaird elected to carry out the safety check, a BNSF manager contacted Rookaird by radio to tell him not to go through with the check. Rookaird proceeded with the check and was fired shortly thereafter.

In his claim, Rookaird argued that the safety check was protected activity under the FRSA and that his performance of the check contributed to BNSF’s decision to terminate him. BNSF countered that the check was not required by federal law and that Rookaird had implemented the check to purposely slow down service so that he could earn more wages. BNSF further argued that Rookaird had a history of seeking unwarranted wages.

The Rookaird Decision

After an arbitration panel composed of a company representative, a union representative and a neutral party ruled in favor of BNSF in 2011, OSHA found in Rookaird’s favor in 2013. The case was eventually removed to federal court in the Western District of Washington where Rookaird ultimately prevailed in a jury trial. Because of BNSF’s retaliation, he was awarded about $420,000 in backpay, $470,000 in frontpay, $560,000 in pain and suffering damages, and $200,000 in punitive damages, totaling $1.65M.