NJ Transit ordered to pay employee $570G in whistleblower case

BY LARRY HIGGS • TRANSPORTATION WRITER • APRIL 7, 2010

An New Jersey Transit employee has received a record $569,587 award after a federal investigation found that NJ Transit illegally retaliated against the Clifton man — resulting in his losing his home, car and credit rating — for reporting an injury to another worker.

The award ordered by the U.S. Department of Labor stems from a February 2008 incident on NJ Transit's Morris & Essex line in which one man was killed and four others injured when a contractor's crew came in contact with live, overhead wires.

The Labor Department concluded that NJ Transit violated a federal whistleblower law by its actions against its employee who reported the incident, Anthony Araujo. The two-year old law was designed to prevent management from retaliating against rail workers who report safety issues or injuries.

The lion's share of the award goes to compensate Araujo for almost 12 months of lost pay after he was suspended in October 2008, including $345,754 for the loss of his home which was foreclosed on, the repossession of his car and the damage to his credit rating, said the April 6 Labor Department report. Only $17,915 was awarded for attorney's fees.

This is the largest award so far under the Federal Rail Safety Act, said Ted Fitzgerald, Occupational Safety and Health Administration spokesman.

"This is unprecedented. They're just trying to make him whole," said Araujo's attorney, Charles Goetsch, who specializes in railroad law. "He's lost his credit standing for seven years and the financial and emotional distress of losing his home and his car, and what did he do wrong? He reported an injury."

NJ Transit officials are reviewing the finding and weighing their appeal options, said Penny Bassett-Hackett, NJ Transit spokeswoman. She declined to comment further because it is an ongoing legal case. NJ Transit has 30 days to appeal.
Account of the incident

Araujo was working as a flagman to protect and alert the contractors to trains on Feb. 25, 2008, the day of the accident. The accident happened when a contractor worker contacted a wire with 13,000 volts of electricity running through it.

"I saw that one of the contractor employees was on fire and screaming in pain. His co-workers were screaming for me to do something," Araujo said in his statement to the Labor Department. "I radioed 911 and the railroad dispatcher. His co-workers could not put out the flames and he continued to burn and scream until the EMTs (emergency medical technicians) arrived,"

Araujo was told the accident wasn't his fault because he wasn't supervising the crew and NJ Transit did not test him for drug use, which federal law would have required if he was suspected to be at fault, the Labor Department report said.

But it was after an NJ Transit counselor referred him to a doctor and psychologist, who found him to be suffering from post-traumatic stress disorder, that he was brought up on administrative charges of violating rules in March 2008.

Araujo was suspended for five months without pay and when found fit to return to work, brought up on disciplinary charges and suspended. He also lost additional months of pay when NJ Transit suspended part of his Employee Assistance Program pay while being treated.

Araujo filed a whistleblower complaint with OSHA in July 2008 and alleged the railroad had retaliated against him for reporting his work-related illness.

"Respondent's (NJ Transit) conduct in retaliation against an employee for reporting an injury exhibited reckless disregard for the law and complete indifference to complainant's (Araujo) rights," said Robert D. Kulick, Labor Department regional administrator, in his six-page report. "Respondent's complete disregard for the law and the rights of an employee under the Federal Rail Safety Act warrants punitive damages."

According to the report, NJ Transit "has not provided an answer to the complaint as of this date, nor has it made any witnesses available to the investigation."

The fine was announced as NJ Transit officials are set to vote on April 14 on a package to increase fares and cut services to close a budget gap.

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