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Retaliation award upheld for train conductor suspended for speeding


A federal appeals court on Wednesday upheld a 2014 Department of Labor Administrative Review Board ruling against Norfolk Southern Railway Co. for retaliating against an injured worker.

The United States Court of Appeals for the Sixth Circuit denied the railroad's petition to review the case of Marcus Kruse, a train conductor injured on the job on March 31, 2010.

Mr. Kruse was subject to retaliation after he returned to work in August 2010, a Department of Labor administrative law judge concluded in 2012; noting that in September 2010, Mr. Kruse was given a 30-day suspension by Norfolk Southern for allegedly exceeding a speed limit for 19 seconds on Sept. 7.

In 2014, the administrative review board agreed with the administrative law judge that Norfolk Southern did retaliate against Mr. Kruse for reporting a work-related injury and rewarded him $4,000 in compensatory damages.

In its petition to the appeals court, the company claimed that by filing a safety complaint with the Department of Labor's Occupational Safety & Health Administration over the March 2010 accident while simultaneously filing an appeal to an arbitration board regarding the September suspension, Mr. Kruse violated the “election-of-remedies” provision contained within the Federal Railroad Safety Authorization Act of 1980.

The provision requires that an employee seeking protection under the act to choose “either to seek relief pursuant to the FSRA or pursuant to such other provision of law.”

In the decision issued Wednesday, the appeals court agreed with the administrative review board and ruled that Mr. Kruse's appeal to the arbitration board, which is allowed as part of the collective bargaining agreement under the provisions of the Railway Labor Act, did not preclude him from filing an FRSA claim with the Department of Labor.

“The only issue contested by the parties is whether the Board erred in concluding that Kruse's FRSA claim was not barred by the FRSA's election-of-remedies provision,” the published opinion of the appeals court states. “We conclude that it does not and therefore deny Norfolk Southern's petition for review.”

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