Norfolk Southern told to pay $122,199 to ex-employee

The federal government has ordered Norfolk Southern Corp. to pay more than $122,000 in damages to a former employee who was fired after reporting an on-the-job injury in 2009.

The Department of Labor's Occupational Safety and Health Administration said the railroad violated the employee's rights under the whistle-blower provisions of the Federal Railroad Safety Act. OSHA ordered Norfolk Southern to pay the former worker $122,199 in compensatory and punitive damages, as well as reasonable attorney's fees.

"Every American worker has the right to report an injury without fear of retaliation or intimidation," said Cindy A. Coe, OSHA's regional administrator in Atlanta, in a statement.

A Norfolk Southern spokesman declined to comment, because the matter involved litigation.

The former employee was injured on May 13, 2009, in Jamestown, N.C., in the process of pulling a spike from a rail line.

"Fearing loss of employment, the worker did not report the injury until a re-injury occurred in October when, at the suggestion of management, the employee saw a doctor," OSHA stated in a news release. "After returning to work, the employee was suspended and later terminated for allegedly falsifying the injury."

After the worker complained to OSHA, the agency investigated and determined that the worker's rights had been violated under the provisions of the Federal Railroad Safety Act and that Norfolk Southern had "also successfully intimidated other employees from reporting on-the-job injuries," according to the OSHA statement.

"This 'chilling effect' allowed Norfolk Southern to maintain the appearance of an exemplary safety record and continue its 22-consecutive-year record as recipient of the E.H. Harriman Gold Medal Rail Safety Award," OSHA stated.

In May, the railroad took top honors for the 22nd year in a row in the awards, with the best employee-safety record in 2010 among the nation's largest line-haul railroads.

OSHA's order awards the former employee, now living in Greensboro, N.C., compensatory damages including pain and suffering; reasonable attorney's fees; and $75,000 in punitive damages for the company's reckless disregard of the individual's rights under the federal safety act, the agency stated.

The Labor Department does not release the names of employees involved in whistle-blower complaints, according to OSHA.

Either party can file an appeal.

The penalty is "larger than many for workplace injuries, but not especially large for a successful whistleblower case," wrote J.H. (Rip) Verkerke, an OSHA expert and professor of employment law at the University of Virginia School of Law, in an email.

The federal rail act authorizes punitive damages of up to $250,000 in appropriate cases, a Department of Labor spokeswoman said in an email. "Since 2008, OSHA has awarded punitive damages of $75,000 or more in 13 cases under the Federal Railroad Safety Act," she wrote.

Nationwide, OSHA previously had issued four merit findings against Norfolk Southern under the act's whistle-blower provision, in cases involving other workers complaining about retaliation, according to the department.

"The agency ordered other relief in those cases, but this is the first time OSHA has ordered Norfolk Southern to pay punitive damages under the Federal Railroad Safety Act's whistleblower provision," the department spokeswoman wrote.

Norfolk Southern also has been ordered to expunge the disciplinary record of the individual and to post a notice, where employees can read it, about whistle-blower protection rights under federal law.

"I'm reasonably certain that Norfolk Southern will appeal both the finding of wrongdoing and the compensatory and punitive damages award," Verkerke said. "There are multiple levels of appeal and it is quite common for cases to be ultimately settled for some fraction of the originally assessed amount."

In three other whistle-blower cases this summer, the Labor Department has levied penalties or settled cases for sums ranging from more than $141,000 to more than $176,000.

Robert McCabe, (757) 446-2327, robert.mccabe@pilotonline.com