A railroad whistleblower has been awarded $1.25 million by a federal jury in Tacoma after a six-day trial in which the former union and safety official proved he was targeted and terminated on a pretext in 2011 after reporting dozens of safety violations to federal authorities.
The unanimous verdict, which was reached late Wednesday, includes $250,000 in rare punitive damages against BNSF Railway for its efforts to discredit Michael Elliott after he raised the safety concerns and then fired him — twice.
Those efforts, according to testimony and court documents, included evidence that a supervisor set up a physical confrontation with Elliott in a BNSF parking lot, and then had him arrested and charged with assault. Elliott spent two days in jail but was acquitted in Pierce County court. The railroad used the incident to justify his dismissal.
Evidence also showed that BNSF officials in Washington colluded to provide inaccurate information to a mediator about whether Elliott had properly reported a 2007 felony conviction for drunken driving and vehicle assault. Elliott insisted he had, and internal emails he produced at trial indicated BNSF supervisors knowingly provided the mediator with inaccurate information, according to Sara Amies, one of Elliott’s Seattle attorneys.
“This is vindication for Mike after he’d been hung out to dry for four years,” said another lawyer, James Vucinovich. “The jury agreed that you can’t treat whistle-blowers like that.”
Gus Melonas, a spokesman for BNSF, said the railroad was “proud of its safety record” and repeated the company’s assertions that Elliott was fired for “unrelated rules violations,” which were rejected by the eight-member jury.
“BNSF is exploring its post-trial options,” he said.
Elliott was a 16-year veteran locomotive engineer for BNSF and elected chairman of the Washington State Legislative Board of the Brotherhood of Locomotive Engineers and Trainmen, which represents roughly 750 union workers at BNSF, Union Pacific and Amtrak. As such, Elliott’s focus was on worker safety, according to court documents.
According to the complaint, Elliott reported several complaints about overgrown vegetation blocking the signal system along BNSF-owned tracks between Tacoma and Vancouver along with several potentially catastrophic signal malfunctions. The signal system is designed to keep trains from colliding on tracks that are owned by BNSF and shared by passenger and cargo trains.
The lawsuit alleges BNSF was slow to address the issue, and in January 2011, after receiving no response, Elliott bypassed the railroad and took his concerns to the Federal Railroad Administration. The FRA conducted a six-week inspection in which it found more than 375 violations, including one that resulted in a $1,000 fine.
While minimal, the fine was the first in the area in years and “it stuck in their craw,” Vucinovich said.
Many of the violations were in territory overseen by a BNSF supervisor, Dennis Kautzmann, whom Elliott accused in his lawsuit of plotting a confrontation in the parking lot in which Kautzmann jumped on the hood of Elliott’s vehicle as he tried to leave. A scuffle ensued, and Elliott punched Kautzmann, according to court documents.
That March 2011 incident was used to terminate Elliott and have him charged with criminal assault, according to court documents. Vucinovich said there was evidence that Elliott was set up by Kautzmann, whose story was rejected by a criminal-court jury but used by BNSF to fire him.
While that incident was under internal review, BNSF officials claimed they discovered Elliott’s alleged failure to report the earlier felony conviction, and he was fired in April 2011. In September 2011, after its review of the incident with Kautzmann, the company called him in and fired him a second time, according to court documents.
The federal jury awarded him $1 million in compensatory damages, including loss of future pay, and imposed $250,000 in punitive damages against the railroad. Vucinovich said Elliott was “ecstatic” with the verdict.
He said the trial judge, U.S. District Judge Ronald Leighton, will decide if Elliott should have the option of taking his job back. If he does, the attorney said the $1 million verdict will be reduced by the amount he was awarded for future wages.