A recent Federal Department of Labor Administrative Law Judge (“ALJ”) decision highlights the tactics railroads use against their employees and one possible statutory remedy for those tactics. Jonette Nagra v. National R.R. Passenger Corp., Case No. 2012-FRS-74 (10/29/2013).
Amtrak Engineer, Jonette Nagra, sustained a neck injury in a train/truck collision while working for Amtrak. Due to the severity of the injury, Nagra was forced to be out of work for almost 2 years while she treated for her injuries. Nagra continually treated to get better in order to return to engineering with Amtrak. Her treating neurosurgeon noted she was highly motivated to return to work. During the time that she was recovering, Nagra filed a FELA lawsuit to protect her rights in the event that she was not able to return to work. Unfortunately, the Federal Court that was presiding over her FELA case dismissed it against Amtrak. Nagra never received any money for her case from Amtrak by settlement or a jury verdict.
Even though Amtrak did not pay a dime to Nagra, Amtrak was not interested in having a 19 year employee back at work, even after her case was dismissed. The railroad’s in-house lawyer, its outside lawyer, and several middle managers in labor relations and in Amtrak’s transportation department disliked Nagra. They saw her FELA case as a chance to be rid of her forever. When the treating neurosurgeon eventually decided she had recovered well enough to return to work, the railroad refused to allow her to do so. Amtrak justified this under its “estoppel policy.” “Estoppel” is a legal standard that prevents a person or company from saying one thing and then changing a position after somebody else has relied on the first position. The purpose of the estoppel doctrine is to prevent injustice by stopping people and companies from being inconsistent in their positions, such as receiving money for a permanent disability while trying to go back to work.
Amtrak managers and labor relations who did not want Nagra back at Amtrak said it did not matter whether her neurosurgeon released her to return to work. They took the position that she was barred from returning because her FELA lawsuit alleged that she was permanently disabled. They said because she alleged in the FELA case that she might not ever be able to return to work, now it did not matter that her doctor opined that her remarkable recovery enabled her to mark up again.
The particular kind of estoppel that applies to the allegations people make in lawsuits is called “judicial estoppel.” It has several elements, all of which have to exist or the doctrine does not apply. One of the elements requires proof that the person or company who is supposedly being inconsistent in their position prevailed in litigation on the claim they are now trying to disavow.
But Nagra did not prevail. Her FELA lawsuit was dismissed. She got nothing for it. The people at Amtrak who refused to allow her back knew Nagra’s lawsuit had been dismissed. Certain managers in her division even met with the claims representative to congratulate her for “zeroing out” Nagra’s FELA claim.
Despite this evidence and sworn testimony, Amtrak refused to allow Nagra to return to work even after her treating neurosurgeon reviewed her job description and said in writing that she could safely do her job as an engineer. Amtrak failed to provide any FRA medical fitness standards or any internal Amtrak medical fitness standards which would prevent Nagra from returning to engineering. Amtrak essentially failed to provide even one piece of medical evidence preventing Nagra from returning. Amtrak labor relations simply ignored the medical opinion of the treating neurosurgeon who released her to return to service. Amtrak went so far as to argue that the doctor’s written opinion that Nagra could return to work was “disingenuous.” Basically, Amtrak decided to cherry-pick from Nagra’s medical records the instances where her doctor kept her from returning to work when she was she was preparing for neck surgery and recovering from that neck surgery. Amtrak refused to believe that Nagra could recover and return to work after surgery, despite her doctor’s release.
Railroads have been able to punish employees who suffer injuries at work in this way by not allowing them to return to their careers. Years ago, Nagra might have been stuck with Amtrak’s refusal to allow her to take a return-to-work physical, and her railroad career might have been over. Today, fortunately, she has a remedy.
Nagra filed a retaliation claim under the Federal Railroad Safety Act (“FRSA”). A Department of Labor Administrative Law Judge heard the evidence at the trial and decided the case. The FRSA provides:
(2) Discipline – A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier’s refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to Federal Railroad Administration medical standards for fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier’s medical standards for fitness for duty. For purposes of this paragraph, the term “discipline” means to bring charges against a person in a disciplinary proceeding, suspend, terminate, place on probation, or make note of reprimand on an employee’s record.
49 U.S.C. § 20109(c). The ALJ explained that this section means what it says: if the treating physician says the employee can return to work, the railroad must allow it, unless FRA medical standards or the railroad’s own internal medical standards say otherwise. Here, Amtrak did not rely on FRA medical standards or any internal medical standards of its own.
As stated by the ALJ:
“Respondent failed to avoid liability in this matter because it failed to provide any evidence that there is an Amtrak medical fitness standard or FRA medical fitness standard keeping Complainant from returning to work as required under section (c)(2) of the Act. Further, Respondent has failed to provide any evidence that Complainant’s personal injury reporting did not in some way contribute to the discrimination and discipline allegedly imposed by Lech under the doctrine of estoppel. In Ms. Lech’s word, a defense I find ‘disingenuous.’”
This case had far reaching implications beyond Nagra’s attempt to return to work. If successful in this endeavor, Amtrak would have used Nagra’s case as precedent to disallow an employee, who is fit for duty, from returning to service at its own whim rather than based on the clear provisions of section (c)(2). Without the Court’s intervention, Amtrak could have unilaterally and illegally picked and chosen which employees will be allowed to return to work without regard to section (c)(2), creating a chilling effect on employee protection under the FRSA. Amtrak would have been left unchecked to discourage employees from treating for their injuries, reminding them that they might not be allowed to return to their careers, using the story of Jonette Nagra as a cautionary tale. Fortunately, the ALJ saw through this “disingenuous” defense and justice prevailed for Jonette Nagra. Nagra received full reinstatement to her engineering position with her seniority rights. Amtrak was required to pay $102,045.87 for its punitive behavior.