WEST VIRGINIA RECORD

BLUEFIELD - A man is using Norfolk Southern Railway Company, claiming it relied on false testimony in an administrative hearing and then terminated his employment.

On July 29, 2007, Larry L. Koger was riding in the cab of a Norfolk Southern locomotive while working as a freight conductor for the railroad in Bluefield and, as required by Norfolk regulation, was seated at a window watching for signals while the engineer was seated at the other side of the cab and looking for signals on the other side of the tracks, according to a complaint filed May 22 in the U.S. District Court for the Southern District of West Virginia at Bluefield.

Koger claims it was impossible for him to see signals or the signals on the engineer's side of the locomotive, and his view of the signals on the engineer's side of the locomotive was blocked because the train was traveling in reverse around a curve.

With the locomotive traveling in reverse, the "long hood" of the locomotive and the curved track completely blocked Koger's view of the signals that were on the engineer's side of the locomotive, according to the suit.

Koger claims, as required by Norfolk's regulations, the engineer called out that he saw a go-ahead signal and Koger called back that he had heard the engineer. However, because of the long-hood and the curve, Koger says he was unable to see the signal on the engineer's side of the locomotive.

The engineer misread the signal, which was a stop signal, and when the locomotive went past the stop signal, it hit a safety device called a derailer that abruptly halted the locomotive by guiding its wheels off the tracks, according to the suit.

Koger claims he was twisted around in his seat when the locomotive derailed and the force of the derailment slammed him into the seat, causing a severe back injury.

The engineer promptly admitted that he had misread the signal and failed to realize that he was supposed to stop, rather than proceed at that point, and Koger was not responsible for the accident because he was sitting at the window on the other side of the locomotive, according to the suit.

Koger claims he was injured in the accident, but he feared reporting that he had been injured because he says he knew - based on a pervasive and persistent pattern of retaliatory conduct by Norfolk - that he would be fired by Norfolk if he reported the injury.

Despite knowing he would get fired, Koger went to the hospital and reported to his supervisor that he had been injured because he was in such intense pain and he received a letter three days later that there would be a hearing on Aug. 8, 2007, to investigate whether he was responsible for failing to prevent the accident, according to the suit.

Koger claims the presiding officer at the hearing was a railroad supervisor, and the witness who testified that Koger supposedly could have prevented the accident was another railroad supervisor named Darrell Smith, a Road Foreman of Engines.

Smith testified at the hearing that a few hours after the accident, the derailed locomotive was maneuvered back on the rails and a reenactment established that Koger could have seen the stop signal from 261 feet away, according to the suit.

Koger claims after Smith's testimony, Koger's employment was terminated.

One or two months after the hearing, Koger encountered Dustin Phillips, a Norfolk freight conductor, at a post office and Phillips told Koger he had participated in the reenactment and that he could not see the signal from where he was sitting in the conductor's seat, according to the suit.

Koger claims having discovered Norfolk had knowingly presented false testimony at the hearing, he filed an administrative complaint in February 2008, and the judgment in favor of Kroger and against Norfolk was affirmed on appeal.

Koger is seeking compensatory and punitive damages in the amount of $250,000. He is being represented by James L. Farina of Hoey & Farina PC and J. Kristopher Cormany of Cormany Law PLLC.

U.S. District Court for the Southern District of West Virginia at Bluefield case number: 1:13-cv-12030