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BNSF whistleblower’s trial over Whatcom County incident begins

A BNSF engine pushes a trainload of coal through Bellingham Jan. 15, 2014. Trial is underway for a BNSF conductor’s whistleblower lawsuit against the railroad in which he claims he was fired for reporting safety concerns while working in Whatcom County.
A BNSF engine pushes a trainload of coal through Bellingham Jan. 15, 2014. Trial is underway for a BNSF conductor’s whistleblower lawsuit against the railroad in which he claims he was fired for reporting safety concerns while working in Whatcom County. pdwyer@bhamherald.com

More than six years after his dismissal, former BNSF Railway conductor Curtis Rookaird is facing off this week in U.S. District Court with his former employer over a civil claim that he was illegally fired after relaying safety concerns to federal officials.

The trial began Monday in Seattle. In a brief filed with the court, Rookaird’s attorneys allege that BNSF violated federal law that protects railroad whistleblowers. The lawsuit seeks back pay and damages.

Rookaird’s trial is the latest whistleblower action to reach federal court against BNSF, a major national carrier that in Washington state carries a wide range of freight, including crude oil and other tanker car cargo.

Last July, Mike Elliott, another BNSF whistleblower, was awarded $1.25 million by a federal jury in Tacoma. During a six-day trial, the former union and safety official laid out a case that he was targeted and terminated on a pretext in 2011 after reporting dozens of safety violations to federal authorities.

Rookaird’s attorneys, in their trial brief, say he was fired in the aftermath of a Feb. 23, 2010, incident at a BNSF depot in Whatcom County. On that day, Rookaird conducted an air-brake test of some 40 railroad cars over the objections of a supervisor who wanted him to skip that step to speed up service. He then reported what happened to the Federal Railroad Administration as well as other safety concerns.

“Rookaird’s case is just the latest example of the way that the railroad abuses its employees’ rights when it comes to protected activity,” said the brief filed by Rookaird’s attorneys.

BNSF, in a brief filed in federal court, said Rookaird was justifiably dismissed because he did not perform his work efficiently, submitted a dishonest request to be paid for time he did not work and was insubordinate.

BNSF attorneys said the firing was upheld by an industry arbitration panel.

Rookaird’s attorneys cite the findings of a federal Occupational Health and Administration investigation.

That agency concluded a “preponderance of evidence” indicated that Rookaird’s actions regarding the air-brake testing were a contributing factor in his dismissal, and ordered BNSF to reinstate him and pay punitive and other damages.

BNSF appealed that decision and has refused to reinstate him.

Rookaird’s federal-court trial is expected to stretch into next week.

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