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Railroad worker's retaliation case reinstated

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A federal appeals court has reinstated a retaliation charged filed by a railroad worker who alleged he was given a 15-day suspension for wearing earrings he had worn during his entire 12 years at the railroad because he had filed safety complaints.

Michael Lowery charged Jacksonville, Florida-based CSX Transportation Inc. with violating the Federal Railroad Safety Act after he was given a 15-day suspension in 2011 for allegedly violating workplace jewelry guidelines and making a false statement, according to Friday’s ruling by the 4th U.S. District court of Appeals in Richmond, Virginia, in Michael Lowery v. CSX Transportation Inc.

According to his complaint, Mr. Lowery, a union official who had made various safety complaints about the railroad, had a conversation with a supervisor, who asked if he should be wearing earrings, in August 2011. Mr. Lowery said he responded that he had been wearing the same earrings since he was hired 12 years before. He also said he had been efficiency tested numerous times by another supervisor who had never mentioned anything about his earrings being in violation of railroad rules.

The next day, he was charged with a rule violation for wearing the earnings and for making false statements about the efficiency testing encounters he had with the supervisor, who said he had asked Mr. Lowery to remove the earrings. Mr. Lowery was disciplined and assessed a 15-day suspension.

Mr. Lowery filed a lawsuit in U.S. District Court in Baltimore, which granted the railroad summary judgement dismissing the case.

“Lowery undoubtedly engaged in protected activities and his suspension constituted an unfavorable personnel action,” said a unanimous three-judge panel.

“Second, Lowery adequately demonstrated that the relevant decision-makers were aware of his protected activities,” said the ruling, referring to Mr. Lowery’s safety reports.

“Moreover, viewing the facts in the light most favorable to Lowery, some evidence suggests that (a supervisor’s) testimony was the result of retaliatory animus, and thus a genuine issue of material fact should have precluded summery judgment on this point,” said the ruling.

“For example, deposition testimony established that local managers … were displeased with Lowery’s safety push and reports,” said the ruling, in vacating the District Court’s judgment and remanding the case for further proceedings.