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Fired train conductor’s lawsuit against CSX reinstated

Posted On: Sep. 24, 2021 1:36 PM CST


A federal appeals court has reinstated a lawsuit filed by a fired railroad employee who charged he was terminated for reporting a hazardous safety situation.

Cody Ziparo worked for Jacksonville, Florida-based CSX Transportation Inc. as a train conductor from 2006 to 2016, according to Friday’s ruling by the 2nd U.S. Circuit Court of Appeals in New York in Cody Ziparo v. CSX Transportation Inc.

Mr. Ziparo complained he was pressured by supervisors to mark tasks as complete on the railroad’s “on-board work order” system, even though this was not the case, the ruling said.

“Ziparo was not comfortable with these requests and his refusals to implement them were met with threats of discipline.  Both the requests and threats of discipline caused Ziparo stress to the point that he was unable to focus on his work,” the ruling said.  He lodged a formal complaint against the supervisors in May 2016.

The following month, a misaligned track switch almost led to a catastrophic collision, and CSX reports showed Mr. Ziparo was the last person to operate the switch before the incident and that he had failed to return it to its proper position.

Mr. Ziparo was terminated. The railroad subsequently reprimanded the two supervisors he had complained about.

Mr. Ziparo filed suit against the railroad in U.S. District Court in Syracuse, New York, charging it with unlawful retaliation under the Federal Railroad Safety Act.

The district court dismissed the case, holding the FSRA only protects employees who report conditions that a similarly situated employee would reasonably understand constituted a hazardous safety or security condition and ruling that was not the case here.

The district court also held that the term “hazardous safety or security condition” in the FSRA only applied to physical conditions, which was not applicable in this case.

The ruling was overturned by a unanimous three-judge appeals court panel.  “We conclude that a reasonable jury could find that Ziparo subjectively believed that what he was reporting was a hazardous safety or security condition within the meaning of the FRSA,” the panel’s ruling said.

The ruling said also, “Without question, limiting the FRSA’s protection to reports of physical conditions would unduly limit its scope and beget results that Congress surely did not intend.   It is plain that various practices that do not involve physical conditions can create safety hazards.”

In remanding the case for further proceedings, the ruling said, “we take no position as to whether a reasonable jury could find that Ziparo was fired at least in part for his reports, rather than, as CSX contends, solely because he was negligent in resetting a switch, with potentially catastrophic consequences — an issue that the district court did not address.”

P. Matthew Darby, of Berman, Sobin, Gross, Feldman & Darby LLP in Lutherville, Maryland, who represented Mr. Ziparo, said the ruling is “a commonsense and legally appropriate decision by the 2nd Circuit that recognized the viewpoint of the FSRA, which is to promote safety in the railroad industry.”

The railroad’s attorney did not respond to a request for comment.

In July, an Occupational Safety and Health Administration investigation found that a CSX company violated the FRSA  and “demonstrated a pattern of retaliation” after firing a worker in December 2019 for reporting safety concerns.