Nicholas Malfitano May 11, 2016, 2:08pm


PHILADELPHIA – A former Amtrak employee who claimed he was fired in violation of the Federal Rail Safety Act (FRSA) for being a company whistleblower has defeated an Amtrak motion to dismiss his case.

According to Judge Timothy J. Savage of the U.S. District Court for the Eastern District of Pennsylvania, plaintiff Andrew J. Rossi IV alleged “a plausible inference” that Amtrak fired him for engaging in protected activity as a whistleblower.

Amtrak
Amtrak

“Rossi began his employment with Amtrak as an electrician in November 2008. While working in Amtrak’s asbestos program in 2010, he had an acrimonious relationship with defendant Michael Devine, a car repairman in the asbestos program and Rossi’s co-worker,” Savage said.

“Devine had a history of usurping overtime from other employees in the department through intimidation and threats of physical injury. Devine also performed asbestos work without properly sealing the area,” Savage added.

In December 2011, Devine began to work eight hours of overtime every night, leaving none for the other employees. Rossi, who normally worked regular overtime, says when he informed his supervisors of this development, Devine “began making complaints to management about Rossi’s behavior and performance.”

Two months later, Rossi says Devine threatened him for nearly an hour, after Rossi was assigned three hours of overtime. Rossi explained he informed his union representative, Michael McCulley, about the altercation.

The following day, Rossi and McCulley met with Devine and Amtrak management member Bruce Carlton, “to discuss the ongoing intimidation.” Later the same day, a second meeting was held among Rossi, McCulley, Lou Woods and Terry Schindler.

At the second meeting, Carlton was assigned to investigation Rossi’s complaints. The next day, Carlton requested Rossi “write down what he had told Woods and Schindler or risk termination.” McCulley advised Rossi not to comply with Carlton’s request, and thus Rossi refused to divulge the discussions of the second meeting.

Rossi says he developed insomnia, anxiety, irritable bowel syndrome and post-traumatic stress disorder as a result of these events, leading his physician to remove him from his duties with Amtrak in March 2012.

The following October, Rossi contacted Amtrak’s Health Services department to return to work, but explained he received a letter on Nov. 29, 2012 stating “he had failed to properly notify Amtrak of his condition.” On Dec. 4, 2012, Amtrak terminated Rossi’s employment.

Rossi argued Amtrak discharged him in violation of the whistleblower provisions of the FRSA. Moving to dismiss the complaint for failure to state a claim, Amtrak contends Rossi has not adequately alleged that he was engaged in a protected activity or that Amtrak knew of his protected activity.

“To establish a prima facie case under the FRSA’s whistleblower provisions, the plaintiff must show that: (1) He engaged in a protected activity; (2) The employer knew that he engaged in a protected activity; (3) He suffered an adverse employment action; and (4) The protected activity was a ‘contributing factor’ in the adverse action,” Savage said.

According to Savage, though Rossi’s complaint to management of a co-worker’s usurpation of overtime was not a protected activity under the FRSA, his other complaint regarding defendant Devine’s failure to seal an area where asbestos work was being performed was.

“Although the complaint is imprecise, one can infer that during the meetings, Rossi was also calling attention to a hazardous safety condition, which falls within the meaning of Section 20109 [of the FRSA],” Savage said. “Rossi’s complaints of Devine’s threats and intimidation may also be protected activity because they relate to railroad safety or security.”

Savage stated Amtrak argued Rossi did not adequately pleaded the causation element of his cause of action, believing the nine-month span between Rossi’s protected activity and his termination nullified the requisite causal link. But, Rossi countered Amtrak “delayed his termination due to his health-related absence.”

“Temporal proximity is a question of fact. Rossi has raised a plausible inference that his protected activity was a contributing factor in his termination. Thus, we cannot dismiss his complaint at this stage,” Savage said.

“Rossi has sufficiently alleged that he was engaged in a protected activity and that his protected activity was a contributing factor in his termination. Thus, he has stated a claim under Section 20109,” Savage concluded.

The plaintiff is represented by Patrick J. Finn of Myers Lafferty Law Offices, in Philadelphia.

The defendants are represented by David M. Murdza and Mark S. Landman of Landman Corsi Ballaine & Ford, in Philadelphia and New York City, respectively.

U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-01111

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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