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Paul S. Bovarnick, Of Counsel, Rose, Senders & Bovarnick, LLP, 1205 NW 25th Ave., Portland, OR 97210; T: 503-227-2486; PBovarnick@rsblaw.net.
By Paul S. Bovarnick, Portland, OR
On May 3, 2010, Gennese Annen’s grip caught on the door frame as she passed through the door of her locomotive. Several hours later her back began to spasm. She called a manager to report that she had been injured and then went to the doctor. A week later, she was medically cleared to return to work. A day after that, on May 11, UP notified her of her alleged rule violations. UP accused Gennese of not reporting her injury for six hours, failing to report defective equipment, and being dishonest. UP conducted an investigation on May 19, 2010, and fired Gennese on May 26, 2010. We filed a Whistleblower charge on July 14, 2010. The charge was placed with the Seattle office of OSHA.
On December 15, 2011, after a remarkably thorough investigation, and vetting by layers of bureaucracy, OSHA issued its twenty-page finding. Although the size of the award has understandably attracted attention, the substance of the award is worth reviewing.
First off, as in all cases, the quality of my client was important. OSHA found her statements to be uniformly credible. Gennese has not an ounce of guile or deceptiveness, nor was she intimidated in the least by UP. She knew that she was in the right, and she knew why. As the findings demonstrate, it is impossible not to trust her. Second, we were blessed with a diligent and dedicated investigator. He did a careful and thorough investigation with the full support of the OSHA officials in his regional office. Third, UP could not have done a worse job in explaining its actions to OSHA. UP did not even bother to try to conceal what it had done. And what it did was almost unbelievable.
To begin with, despite numerous phone calls, Gennese was unable to reach a manager until she was already at a clinic. The manager she did finally reach told her that she had to come to the depot before getting medical attention. Despite this, Gennese went into the clinic. She left without being seen after the clinic told her that it would give UP her medical information with or without her permission. (We filed a complaint with the HHS Office of Civil Rights. HHS found the clinic to be in violation of HIPAA, but elected not to sanction them further in view of the Clinic’s subsequent corrective action.) When Gennese finally found a clinic that would obey HIPAA and treat her, she was instructed by UP management not to take the medication that the clinic had prescribed until she had been drug tested, a violation of 49 CFR 219.11(2). Not surprisingly, after admitting in the investigation that he interfered with her medical treatment, the UP officer tried to deny he had done so when interviewed by OSHA.
At the investigation on May 19, 2010, Gennese insisted that she saw no defect in the door frame, and no evidence was presented of any defect. Moreover, the conducting officer concluded that the TIR showing Gennese exiting the locomotive did not show that she had lied about her injury. In fact, neither of the two conducting officers recommended that Gennese be disciplined, and one explicitly wrote that Gennese should not be disciplined.
OSHA’s findings made careful note of other contradictions between the facts and UP’s conclusions. For example, OSHA found that the locomotive doorway was non-standard. OSHA noted that UP made no effort to determine the medical plausibility of Gennese’s testimony that the pain came on hours after the initial twinge. OSHA determined that there were numerous instances where employees were not disciplined despite long delays in reporting defects not connected with an injury. OSHA also found that UP’s employees believed that UP was hostile towards injury reporting. Further, OSHA demonstrated that managers are rewarded for minimizing the number of injury reports. Perhaps the most remarkable finding that OSHA made was that despite reports from two conducting officers, neither of which supported the charges, the superintendent who fired Gennese could not remember why he had done so.
In view of the facts it uncovered, it is not surprising that OSHA awarded significant damages, including punitive damages of $175,000. In support of that award, OSHA relied not only on UP’s egregious conduct in this case, but on its findings in other cases. I expect OSHA to file suit shortly to compel UP to restore Gennese to her employment, and I expect UP to appeal.
Finally, I want to put in a plug for the utility of employment discrimination claims in the context of FELA claims. I have been doing this for years, and, for the most part, I have gotten good results. Employment discrimination cases often present the carrier in a light far worse than an FELA case. Such cases can provide an excellent vehicle for exposing the carrier’s hypocrisy and give us an opportunity to undermine the railroads’ credibility in a way that is sometimes hard to do in an FELA case. Moreover, since most employment discrimination cases require a preliminary investigation by a government agency, we can sometimes get free discovery in a process in which the railroad witnesses are usually not counseled by their own lawyers.
As I mentioned above, I am blessed in this case by the qualities of both my client and my defendant, and I am optimistic about the final outcome.