Congress amended the Federal Railroad Safety Act in 2008, after public hearings “which demonstrated that railroads have a financial incentive to discourage employees from reporting safety concerns and that they frequently act on such incentive by disparately applying vague workplace rules against employees who report safety concerns,” Brandon Fresquez says in his April 5 federal lawsuit against BNSF Railway Co.
The complaint adds: “BNSF ensures its supervisors have a personal motive to discourage employees from reporting safety concerns by maintaining an incentive compensation plan whereby it pays its managers a yearly bonus based, in part, on productivity.”
The amended Railroad Safety Act gave railroad employees the right to sue their employers in Federal Court, and added protections for whistleblower retaliation.
(This is not the first such whistleblower retaliation claim against BNSF. Former BNSF locomotive engineer Mike Elliott sued BNSF in January 2014 after helping the Federal Railroad Administration find 357 safety violations in BNSF’s Tacoma-Seattle operation and was fired. Elliott won a $1.25 million jury award for retaliation. BNSF has appealed to the Ninth Circuit.)
Fresquez says in his complaint that he told his supervisor in June 2015 that he had found a major defect, and that the tracks had to be “taken out of service.” In response, he says, the supervisor texted him: “Don’t do it.” Later that day, the supervisor told him: “If you continue to do this, you know what will happen,” according to the complaint.
Major defects require that tracks be taken out of service until they are repaired, under federal regulations, Fresquez says, citing Federal Railroad Administration Track Safety Standards. “(I)ntermediate defects necessitate the track’s speed limit being reduced until the defect is repaired, and minor defects necessitate no action so long as the defect is repaired within thirty days of when it was reported,” he adds.
Fresquez says he kept noticing defects in the same area. He says he investigated, “and learned from a coworker that Fresquez’s supervisor — Ryan Akers (‘Akers’) — was ordering employees to report defects as having been repaired despite no repairs having been made.” Akers is not a party to the complaint. The only defendant is BNSF Railway Co.
Fresquez says he brought his concerns to Akers’ supervisor in a safety meeting, whereupon the supervisor “immediately stopped the meeting and ordered Fresquez into an adjacent office.”
The complaint continues: “Carpenter [the supervisor] followed Fresquez into the office, closed the door, and began berating Fresquez, saying that nobody liked Fresquez, that Fresquez wasn’t a good track inspector, that it wasn’t Fresquez’s job to report defects, and that he would disqualify Fresquez from the track inspector position if Fresquez continued to report defects.”
Fearful for his job, Fresquez took a non-track inspector opening. That position was abolished, and Fresquez again found himself inspecting tracks for the company. He says he immediately found several defects he was obligated to report, one of them “major.”
But his new supervisor ordered him to change the defect to “minor” in his report, so BNSF could merely slow speeds on the track rather than shut it down, Fresquez says.
He called the Federal Railroad Administration to inform it of the major defect, and “shortly thereafter” was fired on a pretext: “refusing to re-measure” a defect that he had, in fact, offered to measure, according to the complaint.
Fresquez seeks reinstatement, lost wages, expungement of his record, damages for violations of the Railway Safety Act, $75,000 for emotional distress and $250,000 in punitive damages.
He is represented by Matthew Morgan with Nichols Kaster in Minneapolis, who did not immediately respond to a request for comment.
BNSF Railway did not respond to a request for comment.