A federal jury in Colorado sided with a track inspector in his whistle-blower retaliation claim against BNSF Railway. As a result, the railroad company was hit with a seven figure verdict last month that included $250,000 in punitive damages.
Brandon Fresquez, who inspected railroad tracks for BNSF in Denver until the company terminated his employment in May 2016, claimed he was red for reporting his supervisors’ violations of the Federal Rail Safety Act. Those supervisors, Fresquez said, were taking track sections that were tagged for defects and putting them back into service without ever having those defects repaired. A supervisor charged Fresquez with insubordination, which the jury found was in retaliation to his protected activity under FRSA. On Feb. 19, concluding a five day trial in Denver, the jury awarded Fresquez $1.05 million.
FRSA requires that when railroad carriers spot a defect on a section of track, they must repair the defect with- in 30 days or remove the track section from service. This requirement often puts track inspectors at odds with the road masters they work under, said Nick Thompson, an attorney with The Moody Law Firm in Virginia, who rep- resented Fresquez.
Railroad safety employees are often caught “between a rock and a hard place where they want to follow the law but don’t want to slow down trains and catch the wrath of their supervisors,” Thompson said. BNSF’s trial counsel were Keith Goman and Gillian Dale, members at Hall & Evans in Denver. Hall & Evans and BNSF declined to comment on the trial’s outcome and whether there are plans for appeal.
Fresquez, who joined BNSF in 2005, began having conflicts with supervisors in spring 2015 when, as he claims, he refused to participate in their practice of leaving unrepaired tracks in service. Supervisor Mark Carpenter threatened to re him for insubordination, but Fresquez bid to another position in the company before those proceedings got underway, according to the plaintiff.
In May 2016, Fresquez ended up inspecting tracks under another road- master, Michael Paz, and the two immediately clashed. According to Fresquez, he’d found a severe track defect, and Paz ordered him to falsely classify the defect to get the track put back into service. Fresquez called a Federal Railroad Administration agent to discuss the situation, afterward telling Paz he’d reported to “his friends in high places.” Paz told Fresquez, “I have Carpenter on my side, and we don’t lose.”
Later that day, Paz called Fresquez asking him to meet at a different section of track that had a potential defect. A geometry car, which surveys tracks for alignment problems, had flagged that section. Fresquez and Paz, joined by a track foreman, looked at the track, and Paz said he couldn’t see anything wrong with it.