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Federal lawsuit against CSX reinstated

Second Circuit addresses question of first impression

By: Bennett Loudon//September 27, 2021

Federal lawsuit against CSX reinstated

Second Circuit addresses question of first impression

By: Bennett Loudon//September 27, 2021

A federal appeals court has reinstated a lawsuit against CSX Transportation Inc. that was filed by a former employee who accused the railroad freight hauler of retaliation after he reported a possible safety issue.

Plaintiff Cody Ziparo sued CSX under the Federal Railroad Safety Act claiming he was fired for making the report. CSX claims he was fired for failing to properly set a track switch that caused an accident.

U.S. District Court Judge Glenn T. Suddaby, chief judge of the U.S. District Court for the Northern District of New York, granted a defense motion for summary judgment on the grounds that Ziparo’s report was “objectively unreasonable.”

Ziparo reported that supervisors pressured workers to make false entries in work reports, which caused them stress and distraction from their duties.

Suddaby found that only physical conditions subject to the railroad’s control could constitute a “hazardous safety or security condition.”

“We conclude that the district court erred in both respects,” a panel of the U.S. Court of Appeals for the Second District ruled in a decision released Friday.

Under FRSA, reports made in good faith only require that the employee “subjectively believe that the matter being reported constitutes a hazardous safety or security condition, regardless of whether that belief is objectively reasonable,” according to the decision.

The Act does not limit the meaning of “hazardous safety or security condition” to encompass only physical conditions, according to the decision.

So the court vacated Suddaby’s decision and sent the case back to District Court.

The Ziparo decision is the first time the Second Circuit has addressed the question of whether the FRSA protects only “employees who report conditions that a similarly situated employee would reasonably understand as constituting a hazardous safety or security condition?”

Suddaby concluded that it does.

“We hold that the FRSA’s text and purpose do not support the district court’s interpretation, and that ‘good faith’ as used in the FRSA requires only that the reporting employee honestly believe that what she reports constitutes a hazardous safety or security condition,” the court wrote.

“We further conclude that the district court erred in defining the term ‘hazardous safety or security condition’ to embrace only physical conditions, a limitation without foundation in the statutory language,” according to the decision.

Ziparo worked for CSX as a train conductor from 2006 until 2016, when he was fired. In October 2015, Ziparo was working in CSX’s train yard in Watertown.

CSX used a computer software program to track the productivity of its employees. CSX rewards supervisors with bonuses for meeting performance goals based on the software data. The bonuses are not paid to conductors or other lower-level employees.

In January 2016, Ziparo’s supervisors began pressuring him and other conductors to mark tasks as complete in the tracking software even though the tasks had not actually been completed. Doing so would inflate the supervisors’ performance metrics so they would earn larger bonuses.

Ziparo refused to mark the tasks complete and his supervisors threatened him with discipline, which led to stress “to the point that he was unable to focus on his work,” according to the decision.

From January to May 2016, Ziparo and another employee repeatedly complained to supervisors that they were creating an unsafe environment.

In May 2016 Ziparo made a formal complaint on CSX’s ethics hotline.

On June 9, a train caused serious damage to a misaligned track switch. CSX records showed Ziparo was the last person to operate the switch, although Ziparo disputes the accuracy of the records.

Ziparo was fired. Subsequently, the investigation of his complaint against the supervisors was completed and the supervisors were reprimanded.

Ziparo filed his lawsuit against CSX in June 2017.

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