Federal Railroad Safety Act (“FRSA”) Whistleblower Digest Supplement

[Last Updated May 23, 2022]

VII. PRIMA FACIE CASE AND BURDEN SHIFTING ANALYSIS

VIII. PROTECTED ACTIVITY

20109(a) Protected Activity
20109(b): Hazardous Safety or Security Conditions
Good Faith / Reasonable Belief
20109(c)(2): Requesting Treatment or Following Treatment Plan

IX. ADVERSE ACTION

In General
Specific Conduct
Adverse Action and Summary Decision

X. CAUSATION / CONTRIBUTING FACTOR

Contributing Factor Generally
Respondent's Belief [new]
Respondent's Knowledge
Chain of Events / Inextricable Intertwinement
Motive, Animus, Intentional Retaliation
Temporal Proximity
Stated Reason for Discipline
Fairness of Discipline
"Cat’s Paw" Theory
Summary Decision on Contributory Factor

XI. AFFIRMATIVE DEFENSE / CLEAR AND CONVINCING EVIDENCE STANDARD

XII. 20109(c)(1) CASES: PROHIBITION OF INTERFERENCE WITH TREATMENT

XIV. DISMISSALS, WITHDRAWALS, AND SETTLEMENTS

TIMELINESS OF ADMINISTRATIVE FRSA COMPLAINT FILED BY REGULAR MAIL; MAILBOX RULE IS NOT INVOKED WHERE AFFIDAVITS CONCEDED THAT NORMAL BUSINESS PRACTICE HAD NOT BEEN FOLLOWED, AND THERE WAS AN ABSENCE OF OTHER RELEVANT CIRCUMSTANTIAL EVIDENCE; EVEN IF INVOKED, MAILBOX RULE ONLY PROVIDES A WEAK PRESUMPTION OF DELIVERY, AND OSHA’S DENIAL OF RECEIPT (BOLSTERED BY EVIDENCE THAT OSHA TRACKS CORRESPONDENCE) WOULD BREAK PRESUMPTION

In Guerra v. Consolidated Rail Corp., No. 18-2471 (3rd Cir. Aug. 21, 2019) (2019 U.S. App. LEXIS 24910; 2019 WL 3938631) (cases below: D.N.J. No. 17-cv-06497; ARB No. 2017-069; ALJ No. 2017-FRS-00047), the Third Circuit found that the District Court erred when it concluded that it did not have jurisdiction over an FRSA “kick-out” whistleblower claim where the administrative complaint was not timely filed. The court held that the FRSA limitations period is a non-jurisdictional claims-processing rule. The court, however, indicated even though non-jurisdictional, a limitations period for the filing of an administrative complaint still “has teeth.” The court thus considered Conrail’s motion for summary judgment under FRCP 56 based on lack of timeliness of the FRSA administrative complaint. Guerra maintained that his lawyers filed the administrative complaint by first-class mail on May 10, 2016—which would be timely under the FRSA‘s 180-day limitations period. OSHA, however, found that it first received the complaint by email on November 28, 2016—which would be an untimely filing. In this regard, Guerra relied on the mailbox rule and not equitable tolling.

The court noted that the common-law mailbox rule is, essentially, that “’if a letter properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed . . . that it reached its destination at the regular time, and was received by the person to whom it was addressed.’ Lupyan v. Corinthian Colls. Inc., 761 F.3d 314, 319 (3d Cir. 2014) (internal quotation marks and citation omitted).” Slip op. at 16-17. The record in the instant case contained affidavits from Guerra’s lawyers verifying that the law firm’s normal practice was to send complaints by both certified mail and fax, but conceding that in this case Guerra’s complaint was supposedly sent only by first-class mail due to clerical oversight.

The court stated:

This evidence is not enough to invoke the mailbox rule’s presumption of delivery. To be sure, “receipt can be proven circumstantially by introducing evidence of business practices or office customs related to mail,” at least where the affiant has “personal knowledge of the procedures in place at the time of the mailing.” Lupyan, 761 F.3d at 319-20 (internal quotation marks and citations omitted). But Guerra’s circumstantial evidence of his lawyers’ typical mailing procedures is irrelevant because, “due to a clerical oversight,” those procedures were admittedly not followed. So this case is not like Lupyan, where the sender produced two affidavits, both of which showed “personal knowledge of [the sender’s] customary mailing practices,” and one of which was by the sender’s employee who “swore that she personally prepared the Letter and placed it in the outgoing mail bin.” Id. at 320. Nor is it like Philadelphia Marine, where the sender produced meaningful, relevant circumstantial evidence such as testimony of an express acknowledgement of receipt and a computer printout apparently reflecting metadata of the letter’s drafting date. See 523 F.3d at 153.

Id. at 17. Here, neither affiant were involved in the mailing process. The court agreed with the district court that such “unsupported, second-hand accounts cannot invoke the mailbox rule’s presumption.” Id. at 18 (footnote omitted). The court noted that even if Guerra’s evidence had been sufficient to invoke a presumption of delivery, it would only be a very weak presumption, and that OSHA’s denial of receipt would cause the presumption to disappear. The court also noted that OSHA’s denial of receipt was bolstered by its practice of tracking correspondence and its unavailing search for the purported filing.

The court was not persuaded by Guerra’s argument that such logic was “blatantly unreasonable” and puts a high evidentiary burden on an employee. The court indicated that it was not unreasonable to expect use of a form of mailing for an important document that includes a method of verifiable receipt.

Thus, because Guerra had not produced enough reliable evidence to invoke the common-law mailbox rule, the court determined that his administrative complaint was untimely and his claim barred.

Equitable Tolling

TIMELINESS OF FRSA COMPLAINT; EQUITABLE TOLLING; ALLEGATION FROM COMPLAINANT THAT HE WAS DIRECTED TO HOLD OFF ON FILING HIS FRSA COMPLAINT UNTIL AFTER HE FILED AN EEOC AND STATE HUMAN RIGHTS COMPLAINT DID NOT SUPPORT EQUITABLE TOLLING WHERE COMPLAINANT WAITED AN ADDITIONAL TWO WEEKS TO FILE THE FRSA COMPLAINT

In Privler v. CSX Transportation, Inc., ARB No. 2018-0071, ALJ No. 2018-FRS-00021 (ARB Mar. 24, 2020) (per curiam), Complainant’s FRSA complaint was untimely because it was filed 182 days after the alleged adverse action. The Board noted the ALJ’s analysis of equitable tolling, and agreed with the ALJ’s reasoning for why it was not warranted in this case:

The ALJ specifically indicated that: (1) Complainant was not entitled to equitable tolling based on the theory that he raised “ the precise statutory claim but has done so in the wrong forum” because even though there was some overlap of facts in his Equal Employment Opportunity Commission (EEOC) and New York Department of Human Rights (DHR) complaint, the complaint only pertained to a claim of religious discrimination; (2) a lack of prejudice to the Respondent does not in and of itself warrant equitable tolling; and (3) while Complainant alleged that he was directed not to file his FRSA claim with OSHA until after he filed his EEOC and DHR complaint, he did not explain why he waited over two weeks to the file his FRSA complaint. Id. In doing so, the ALJ construed the record liberally in deference to Complainant’s unrepresented status and still found his arguments insufficient to avoid dismissal.

The ARB refused to consider new arguments from Complainant not raised before the ALJ, affirmed the ALJ’s decision and order, and dismissed the complaint with prejudice.

[Editor’s note: The ALJ’s decision provides context. The self-represented Complainant’s equitable tolling argument was, apparently, that a DHR official advised Complainant to hold off on filing his FRSA complaint because language in the DHR and EEOC complaint stated: “I have not commenced any other civil action, nor do I have an action pending before any administrative agency, under any state or local law, based on upon this same unlawful discriminatory practice.” The ALJ determined that even if a DHR official had advised to file the FRSA complaint with OSHA only after filing the DHR and EECO complaints, Complainant did not do so until over two weeks after the DHR and EEOC complaints were filed. Privler v. CSX Transportation, Inc., ALJ No. 2018-FRS-00021, slip op. at 4 (ALJ Aug. 13, 2018).]

Timeliness and Removal Provision

FRSA LIMITATIONS PERIOD IS A NONJURISDICTIONAL CLAIM-PROCESSING RULE THAT MAY DEFEAT AN EMPLOYEE’S CLAIM, BUT WHICH DOES NOT LIMIT A DISTRICT COURT’S JURISDICTION TO HEAR A CASE UNDER THE FRSA “KICK-OUT” PROVISION

SUBJECT-MATTER JURISDICTION; COURT ALWAYS HAS JURISDICTION TO DETERMINE ITS OWN JURISDICTION, AND HAS THE INDEPENDENT OBLIGATION TO DETERMINE ITS JURISDICTION, EVEN IF NOT CONTESTED BY A PARTY

NON-JURISDICTIONAL CLAIMS-PROCESSING LIMITATIONS PERIOD DOES NOT BAR DISTRICT COURT JURISDICTION OVER FRSA KICK-OUT CLAIM—BUT LIMITATIONS PERIOD STILL “HAS TEETH”; UNTIMELY ADMINISTRATIVE COMPLAINT BARS CLAIM

In Guerra v. Consolidated Rail Corp., No. 18-2471 (3rd Cir. Aug. 21, 2019) (2019 U.S. App. LEXIS 24910; 2019 WL 3938631) (cases below: D.N.J. No. 17-cv-06497; ARB No. 2017-069; ALJ No. 2017-FRS-00047), the court considered the following question:

This case asks whether FRSA’s 180-day limitations period is “jurisdictional.” That is, if an employee fails to file a timely complaint with OSHA, does that divest a district court of subject matter jurisdiction? Or is the limitations period simply a claim-processing rule, the breach of which may defeat an employee’s claim, but not a district court’s jurisdiction to hear the case?

Slip op. at 2-3. The court’s holding was:

After considering the text, context, and history of the provision, and mindful of the Supreme Court’s decisions in this area, we hold that FRSA’s 180-day limitations period in 49 U.S.C. § 20109(d)(2)(A)(ii) is a nonjurisdictional claim-processing rule.

Id. at 3.

When Guerra exercised the option to “kick-out” the case from DOL to a Federal district court, Conrail filed a motion to “dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), asserting that Guerra’s failure to file a timely complaint with OSHA deprived the District Court of jurisdiction over the case. Conrail also moved in the alternative under Rule 56 for summary judgment on the grounds that the record refuted Guerra’s only theory of timeliness. In response, Guerra agreed that the District Court would lack jurisdiction if his complaint had been untimely filed, but asserted that, under the mailbox rule, his attorneys had timely mailed his complaint to OSHA . . . .” Id. at 8.

The Third Circuit noted that a court always has jurisdiction to determine its own jurisdiction, and found that the district court erred by accepting without scrutiny the parties’ accord on the district court’s supposed lack of jurisdiction. Rather, the district court had an independent obligation to determine whether subject-matter jurisdiction existed. The Third Circuit proceeded to consider the question de novo.

The court noted that the distinction between subject-matter jurisdiction and claim- processing rules are sometimes confused or conflated. The court found that the text of the FRSA limitations provision speaks only to a claim’s timeliness and not a court’s power to adjudicate. So too, the provision’s context was not framed in jurisdictional terms, and the provision’s legislative history did not display a clear Congressional intent to create a jurisdictional bar. The court was not persuaded by Conrail’s argument that the fact that the FRSA anti-retaliation provision was designed for a full administrative adjudication means that the filing of an administrative complaint carries jurisdictional significance, the court observing that the kick-out provision at 49 U.S.C. § 20109(d)(3) provides for the bringing of an “original” action at law or equity for “de novo” review. Nor was the court persuaded by the Conrail’s citation of SOX decisions in which the courts dismissed “‘for lack of subject matter jurisdiction where the complainant failed to file a timely administrative complaint.’” Id. at 15 (quoting Appellee’s Supp. Letter which cited several district court decisions). The Third Circuit found that the cited cases were “all merely ‘drive-by jurisdictional rulings’ that easily ‘miss the critical differences between true jurisdictional conditions and nonjurisdictional limitations on causes of action.’ Muchnick, 559 U.S. at 161 (internal quotation marks and citations omitted); see, e.g., King v. Ind. Harbor Belt R.R., No. 2:15-CV-245-JD-PRC, 2017 WL 9565363, at *7–9 (N.D. Ind. Feb. 1, 2017) (analyzing and critiquing the haphazard “jurisdictional” language used by many district courts in the SOX context). (internal quotation marks and citations omitted).” Id.

The court then proceeded to address whether summary judgment was warranted based on an untimely filing of the FRSA complaint, the court noting that a non-jurisdictional claim-processing rule “still has teeth.” Id. at 16 (citations omitted). The court ultimately found that the administrative complaint was untimely and the claim barred.

III. PROCEDURE BEFORE OALJ

Amendment of Complaint

AMENDMENT OF PLEADINGS; ALJ DID NOT ABUSE HIS DISCRETION BY AMENDING THE PLEADING IN REGARD TO AN INSTANCE OF PROTECTED ACTIVITY IDENTIFIED DURING PRE-HEARING DISCOVERY (THE FILING OF A WHISTLEBLOWER COMPLAINT)

In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), Respondent contended that the ALJ improperly considered as protected activity the filing of an OSHA whistleblower retaliation claim where Complainant raised the complaint as protected activity for the first time in an interrogatory response while the matter was pending before the ALJ. The ALJ found that the raising of this claim in response to Respondent’s interrogatories was sufficient notice that the issue would be litigated. On appeal, the ARB found that the ALJ’s decision to amend the pleadings to conform to the evidence as permitted by 29 C.F.R. 18.36 was not an abuse of discretion. The ARB noted that Respondent had not contended that it was prejudiced by, or unable to prepare a defense to this additional claim of protected activity identified in pre-hearing discovery.

Evidentiary Determinations

ALJ DECISION AND ORDER; ALJ NEED NOT DISCUSS ALL EVIDENCE IN DISCUSSION SECTION OF DECISION, BUT ONLY EXPLAIN WHY SIGNIFICANT PROBATIVE EVIDENCE HAS BEEN REJECTED

In Bankruptcy Estate of Donald M. Graff v. BNSF Railway Co., ARB No. 2021-0002, ALJ No. 2018-FRS-00018 (ARB Sept. 30, 2021) (per curiam), Complainant noted on appeal that the ALJ had not discussed in the discussion section of his Decision and Order certain of his supervisor’s statements that Complainant argued demonstrated animosity. The ARB stated, however, that “an ALJ ‘need not discuss all evidence presented to her’ and only must explain why ‘significant probative evidence has been rejected.’ Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)).” Slip op. at 14, n. 116. The ARB determined that in the instant case the evidence of animosity had not been significantly probative, and noted that “the ALJ did refer to the statements in the Findings of Fact and Conclusions of Law section, indicating the he did consider the evidence.” Id.

CREDIBILITY DETERMINATIONS; ALJ MAY TAKE INTO CONSIDERATION WRITTEN STATEMENTS

WITNESSES; IT IS NOT NECESSARY FOR ALJ TO HEAR LIVE TESTIMONY FROM EVERY PERSON IN CASE

In Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020) (per curiam), the ALJ’s contributing factor causation analysis was based in part on his credibility determinations. The ARB found in the instant case the ALJ’s credibility findings were well-reasoned, thoroughly explained, and supported by substantial evidence. On appeal, one of Respondent’s challenges was the fact that some of the ALJ’s credibility determinations were based on written statements. The ARB was not persuaded by this challenge, noting that many witnesses had testified at the hearing. The ARB further stated: “Further, it is the ALJ’s task to review the totality of the record and it is not necessary that the ALJ hear live testimony from every person in a case. Written statements increase the ALJ’s access for probative evidence, not limit it.” Slip op. at 13, n.3.

Appointments Clause Challenge

U.S. CONSTITUTION; ARB DECLINES TO EXERCISE DISCRETION TO CONSIDER NON-JURISDICTIONAL CONSTITIONAL CLAIM WHERE RESPONDENT’S APPOINTMENTS CLAUSE CHALLENGE WAS NOT RAISED BEFORE ALJ; WAIVER OF CHALLENGE IF NOT TIMELY RAISED

In Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020) (per curiam), the Administrative Review Board found that Respondent waived its Appointments Clause challenge because it failed to raise it before the ALJ:

Respondent alternatively argues that it is entitled to a new hearing before a different ALJ under Lucia v. S.E.C., 138 S.Ct. 2044 (2018), because the ALJ was not properly appointed under the Appointments Clause of the U.S. Constitution. Art. II, § 2, cl. 2.[18] Respondent asserts that it did not waive the challenge and that its challenge was timely under Lucia as promptly filed once the Supreme Court’s decision issued. Resp. Reply at 10. In the event it loses on the merits, Respondent requests the matter be vacated and remanded for new proceedings before a different ALJ.

Riddell and the Solicitor of Labor, as amicus, argue Respondent waived its right to make an Appointments challenge. Ordinary principles of forfeiture and waiver apply to Appointments challenges. Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018).

While the ARB has the discretion to consider non-jurisdictional constitutional claims such as Respondent’s Appointments Clause challenge, such discretion is exercised in only rare or exceptional circumstances which we do not see here. Respondent raised the Appointments Clause challenge for the first time on appeal in two-sentences at the end of its petition for review. Respondent did not raise the challenge at any point during the proceedings with the ALJ although it had notice of the issue and the opportunity to do so.[19] The ARB typically does not entertain arguments that are first raised on appeal and we shall not do so now. E.g., Gattegno v. Prospect Energy Corp., et al., ARB No. 2006-0118, ALJ No. 2006-SOX-00008, slip op. at 22 (ARB May 29, 2008). Thus, we hold that Respondent has waived any Appointments challenge.[20], [21]
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[18] Which provides that only the President, “Courts of Law,” or “Heads of Departments” can appoint “Officers.”

[19] In 2016, the courts of Appeals issued conflicting decisions on Appointments Clause challenges to ALJs and in February 2017, the D.C. Circuit granted rehearing en banc of its 2016 Lucia decision. See Solicitor’s Brief at 9. If the burgeoning conflict in the courts of Appeals did not, the Secretary’s ratification of the ALJ’s appointments in December 2017 put Respondent on notice of an Appointments issue. Finally, when Lucia was decided by the Supreme Court on June 21, 2018, CSX should have promptly made its constitutional challenge. The ALJ did not decide this matter until almost six months later on December 12, 2018, giving Respondent a considerable amount of time to raise a challenge. Its failure to do so in a timely fashion is fatal to its argument.

[20] Further bolstering our decision is the fact that Respondent only asks that the Board hold that the ALJ in this matter was not properly appointed if it loses on the merits—thus, the implication that if it were to win on the merits, it would consider the ALJ’s appointment a non-issue.

[21] We note that our sister Board has issued cases consistent with our decision that Respondent’s Appointments challenge has been waived in Kiyuna v. Matson Terminals, Inc., BRB No. 19-0103, 2019 WL 2865994 (BRB June 25, 2019) and Daugherty v. Consolidated Coal Co., BRB No. 18-0341, 2019 WL 3775979 (BRB July 19, 2019).

Slip op. at 28-29.

ALJ Bias or Lack of Impartiality

ALJ BIAS OR LACK OF IMPARTIALITY NOT ESTABLISHED BY HIS EXTENSIVE QUESTIONING OF WITNESSES; LEADING QUESTIONS AND COMMENTARY ON THE EVIDENCE IN THIS CASE WERE WITHIN THE ALJ’S DISCRETION IN FURTHERANCE OF THE DUTY TO SEARCH FOR THE TRUTH

In March v. Metro-North Commuter Railroad Co., ARB No. 2021-0059, ALJ Nos. 2019-FRS-00032, -00035 (ARB Jan. 21, 2022) (per curiam), Respondent (Metro-North) argued on appeal that the ALJ engaged in improper and partial questioning of witnesses and demonstrated bias in favor of Complainant. The ARB, however, found that “the ALJ’s conduct during the hearing was proper at all times, and that the ALJ did not abuse his discretion or exceed the bounds of his authority by questioning witnesses on both sides of the matter.” Slip op. at 20-21. The ARB stated:

The applicable regulations afford ALJs broad discretion in the manner in which administrative hearings are conducted. This discretion includes the power and, where appropriate, even an obligation, to question witnesses in order develop a complete record to determine the relevant facts and identify the salient issues necessary to decide a case. Accordingly, the Board and the Secretary of Labor have long approved of ALJs extensively questioning witnesses as part of their role as factfinders and decisionmakers. Federal courts have similarly expressed that it is often appropriate for a judge, particularly in the analogous circumstance of a bench trial, to question witnesses, so long as the judge does not slip into the role of an advocate for either party. Moreover, it may be essential for an ALJ to question witnesses and take steps to clarify the record in a case involving a pro se litigant.
We do not agree with Metro-North that the ALJ was partial or otherwise acted beyond the scope of his authority by questioning witnesses. The record demonstrates the ALJ’s questions were appropriately geared toward: 1) clarifying or supplementing testimony; 2) resolving potential or apparent conflicts in the record; and 3) exploring the parties’ claims and defenses. The ALJ’s questions often probed Metro-North’s witnesses’ testimony, and sometimes elicited testimony that Metro-North may perceive as unfavorable to its position. However, we find the ALJ’s questions were reasonable, balanced, and neutral in soliciting testimony. Likewise, although the ALJ posed leading and “hypothetical” questions and occasionally commented on the evidence, it was within his discretion and authority to do so in furtherance of his duty to search for the truth and resolve incomplete or inconsistent testimony relevant to the issues in the case before him.

Id. at 21-22 (footnotes omitted). The ARB also noted that Respondent had not made a showing of any extra-judicial source of bias and had only pointed to the ALJ’s actions during the evidentiary hearing.

Timeliness of Request for ALJ Hearing

TIMELINESS OF REQUEST FOR ALJ HEARING IN FRSA CASE; THE APPLICABLE REGULATION REQUIRES THAT COMPLAINANT RECEIVE OSHA’S FINDINGS FOR THE CLOCK TO START RUNNING; IT IS NOT SUFFICIENT TO START THE CLOCK FOR OSHA TO SEND COMPLAINANT’S COPY OF THE FINDINGS TO COMPLAINANT’S COUNSEL

In Lancaster v. Norfolk Southern Railway Co., ARB No. 2019-0048, ALJ No. 2018-FRS-00032 (ARB Feb. 25, 2021), Respondent argued that Complainant’s request for an ALJ hearing was not timely. OSHA sent its findings to Complainant’s counsel, and included in the same envelope a copy for Complainant. There was no evidence that Complainant was ever sent a copy of the findings directly. The ARB quoted the regulation at 29 C.F.R. § 1982.105(b), which states: “The findings and, where appropriate, the preliminary order will be sent by certified mail, return receipt requested, to all parties of record (and each party’s legal counsel if the party is represented by counsel).” The ARB determined:

The use of a parenthetical to include counsel indicates that OSHA’s obligation to send its findings to the party of record is primary, but insufficient when a party is represented by counsel. In that case, both the party and counsel must be sent a copy. A plain reading of the language shows that Complainant as a party of record must be sent a copy of the findings. Here, OSHA sent two copies to Complainant’s counsel but did not send one to Complainant.

For the clock to start running on Complainant’s right to appeal, he must receive OSHA’s findings, which is dictated by the language in the regulation governing appeals. There, the regulation indicates that receipt is a prerequisite for the clock to start ticking. “Any party who desires review, including judicial review, of the findings and preliminary order […] must file any objections and/or a request for a hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to § 1982.105.”

We also agree with the ALJ’s conclusion that Complainant’s appeal to OALJ was filed timely because there is no evidence in the record showing that Complainant ever received the OSHA’s findings.

Slip op. at 4-5 (footnote omitted) (emphasis as in original).

IV. PROCEDURE BEFORE ARB

Mandate on Remand - Law of the Case [new]

LAW OF THE CASE DOCTRINE AND MANDATE ON A REMAND; THE MORE THE APPELLATE COURT DID NOT FULLY ADDRESS ARGUMENTS, APPLICABLE LAW, AND THE PARTICULAR FACTS OF THE CASE, THE LESSER THE CONSTRAINT THE LOWER COURT IN SUBSEQUENT LITIGATION

In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Dec. 21, 2021) (per curiam), the ARB had affirmed the ALJ’s determination that Respondent met its burden for an affirmative defense concerning Complainant’s FRSA retaliation complaint. The Ninth Circuit, in a brief unpublished memorandum, remanded on the ground that the ARB’s decision had erred in two respects: (1) that, under the circumstances of the case, it had been virtually impossible for Complainant to comply with BNSF’s 72-hour injury reporting rule, and (2) that the ARB had imposed an erroneous proximate cause standard of proof. On remand, the ARB again affirmed the ALJ on the affirmative defense determination in a decision in which the ARB had to grapple with analytical problems introduced by the Ninth Circuit’s memorandum.

The ARB first set the context by reviewing its finding from its earlier decision and Complainant’s brief before the Ninth Circuit. It then carefully analyzed the Ninth Circuit’s decision, and concluded that the court had only addressed one argument concerning the affirmative defense holdings – that the ARB erred in rejecting Complainant’s argument that BNSF’s policy regarding reporting of workplace injuries was “unreasonable” and “unduly burdensome.” The ARB noted that the Ninth Circuit had expanded on this argument with several policy grounds, reasoning that compliance with the policy could not reasonably be met and was “virtually impossible” under certain circumstances. The ARB then turned to its mandate on remand under law-of-the-case doctrine.

The ARB examined the doctrine, and observed that “the doctrine covers subsequent litigation most fully when the prior court or appellate court addressed the parties’ arguments, the applicable law at issue, and the facts of a particular case. As the appellate court leaves more substance untouched, the lower court is less constrained.” Slip op. at 10-11. The ARB then explained its conclusion that the Ninth Circuit’s memorandum did not constitute the law of the case for purposes of Respondent’s affirmative defense because: (1) the court had not analyzed the FRSA framework and had not considered whether its reasoning fit that framework; (2) the court focused on Complainant’s fairness arguments and not on the specific affirmative defense arguments (the ARB noting that courts do not typically review the merits of an employer’s policy when deciding if that employer violated the FRSA); and (3) the court followed Complainant’s mischaracterizations of BNSF’s policy to challenge hypothetical situations that did not match the record or the actual policy. The ARB went on to explain why the court’s analysis did not fit the facts of the case. After consideration of the parties’ arguments in the remand briefing, the ARB resolved the law of the case issue as follows:

In the analysis that it did do, the Ninth Circuit’s memorandum characterized the policy as burdensome, unreasonable, and retaliatory under these circumstances. The Ninth Circuit wrote: “[Thorstenson] was effectively disciplined for the protected activity of reporting a workplace injury.” As law of the case, we adopt the Ninth Circuit’s position that BNSF violated the statute, but we construe this to apply to Thorstenson’s contributing factor phase.

A contrary opinion might look at the Ninth Circuit’s language “unduly burdensome,” “unreasonable,” and “retaliatory” as conclusions that encapsulate or indirectly address BNSF’s affirmative defense in so far as they are negatives concerning BNSF’s policy. But as stated above, the Ninth Circuit’s opinion does not mention the affirmative defense or the FRSA’s burden framework and factors such as “unreasonable” and “burdensome” do not necessarily implicate the affirmative defense. By its very nature, the affirmative defense assumes that a violation has taken place, but continues the analysis by comparing the respective weights of the retaliatory reasons with the non-retaliatory reasons and asks the fact-finder to make a finding in a counterfactual or hypothetical situation as if the protected conduct had not occurred. Because the Ninth Circuit’s opinion did not discuss the affirmative defense and considered facts that are inapplicable to Thorstenson’s situation and BNSF’s policy, we conclude that a holding on BNSF’s affirmative defense is not the law of the case.

Id. at 14 (footnote omitted).

Standard and Scope of Review

ARB REVIEW; WHERE ARB AFFIRMED ALJ’S FINDING OF FAILURE TO PROVE CONTRIBUTORY FACTOR CAUSATION, IT WAS UNNECESSARY FOR THE ARB TO ALSO REVIEW THE ALJ’S ALTERNATIVE FINDING THAT RESPONDENT MET ITS BURDEN OF PROOF FOR AN AFFIRMATIVE DEFENSE

In Corbin v. Norfolk Southern Railway Co., ARB No. 2020-0023, ALJ Nos. 2019-FRS-00018, -00019 (ARB May 28, 2021)(per curiam), the ARB found that substantial evidence supported the ALJ’s finding that Complainants failed to prove by a preponderance of evidence that their FRSA protected activity contributed to the disciplinary actions against them. As a result, the ARB found it unnecessary to review the ALJ’s affirmative defense determination that Respondent showed by clear and convincing evidence that it had suspended and later terminated Complainants based on rules violations wholly independent of FRSA protected activity.

When Remand is warranted [new]

ARB REVIEW; A REMAND IS NOT REQUIRED DESPITE ALJ’S APPLICATION OF NOW-REJECTED PRECEDENT WHERE ALJ’S THOROUGH FINDINGS OF FACT AND CREDIBILITY DETERMINATIONS SHOWED COMPLAINANT HAD NOT ESTABLISHED HIS CASE AND A REMAND WOULD BE POINTLESS

In Yowell v. Fort Worth & Western R.R., ARB No. 2019-0039, ALJ No. 2018-FRS-00009 (ARB Feb. 5, 2020) (per curiam), the ARB reversed the ALJ's decision, vacated the ALJ's award of relief, and dismissed the complaint. The ARB determined that the ALJ erred in applying "inextricably intertwined" and "chain-of-action" causation analysis to the contributory factor causation and affirmative defense elements of a FRSA complaint [see casenote below in Section X. CAUSATION / CONTRIBUTING FACTOR - Chain of Events / Inextricable Intertwinement]. The ARB, however, determined a remand was not necessary. It noted that the ALJ had made thorough findings of fact showing that the termination was based solely on late reporting of the injury, and that the ALJ found that Complainant was not credible and that Respondent’s witnesses were credible. The ARB determined that these findings of fact and credibility determinations established that Respondent proved its affirmative defense that it would have fired Complainant for late reporting even in the absence of protected activity. The ARB noted that “[i]n Samson v. U.S. Dep't of Labor, 732 Fed. Appx. 444 (7th Cir. 2018), the 7th Circuit determined that the ALJ’s error on the element of protected activity did not require remand and that remand would be ‘pointless’ because the issue of causation permitted only one result; this is so because of the deference given to the ALJ's credibility findings. Id. at 446-47….” Slip op. at 9-10 (addition citations omitted).

Timeliness of Petition for Review

UNTIMELY PETITION FOR REVIEW; EXTRAORDINARY CIRCUMSTANCES WARRANTING EQUITABLE TOLLING WERE NOT ESTABLISHED BASED ON CONTENTIONS THAT ALJ ONLY SERVED COMPLAINANT’S COUNSEL; THAT ALJ’S D&O DID NOT INCLUDE A NOTICE OF APPEAL RIGHTS; THAT COMPLAINANT ATTEMPTED UNSUCCESSFULLY TO CONTACT DOL REPRESENTATIVES ON APPELLATE PROCEDURE; THAT COMPLAINANT WAS SEARCHING FOR NEW COUNSEL; THAT COMPLAINANT DID NOT HAVE A COPY OF THE HEARING TRANSCRIPT

In Boles v. Union Pacific Railroad Co., ARB No. 2021-0061, ALJ No. 2020-FRS-00101 (ARB Nov. 1, 2021) (per curiam), the ARB dismissed Complainant's untimely Petition for Review, finding that Complainant failed to establish grounds for equitable tolling. Complainant had been represented by counsel before the ALJ. Complainant and his counsel, however, did not have an agreement to represent him in an appeal, and Complainant was self-represented before the ARB.

Complainant's response to the Board's Order to Show Cause why the untimely appeal should not be dismissed did not fit any of the four standard situations where equitable tolling may be applied, so the ARB applied an extraordinary circumstances standard to Complainant's arguments.

Complainant first argued that he was prevented from timely appealing because he did not receive a paper copy of the ALJ's Decision and Order (D&O) directly from the ALJ. The ARB found that this was not an extraordinary circumstance justifying tolling because the D&O was timely served on Complainant's attorney, and that attorney had promptly e-mailed the decision to Complainant. The ARB stated: "As a matter of law, proper notice to a party’s representative is deemed to be actual notice to the party himself." Slip op. at 4 (footnoted omitted). In addition, the ARB noted that Complainant had not disputed that his counsel delivered an electronic copy to him well before the filing deadline -- and that Complainant had not claimed that he was unable to access the decision in its electronic form.

Complainant argued that he did not know the applicable procedures and rules, and noted that the ALJ had not included instructions on how to do so in the D&O. The ARB noted that ignorance of legal rights does not toll a statute of limitations, and that although it would have been helpful for the ALL to have included a notice of appeal rights, there is no statute or regulation requiring such.

Complainant also argued that he made repeated unsuccessful attempts to contact DOL representatives about the appeal procedures. The ARB, however, found no indication that Complainant attempted to contact the ARB itself before the filing deadline. The ARB also found the documentation on the asserted contacts was equivocal, and insufficient to establish extraordinary circumstances. The ARB also noted that when Complainant's counsel e-mailed the ALJ's D&O to Complainant, he specifically informed Complainant about the filing deadline. The ARB noted that its website explains how to file a petition for review electronically or by mail.

Complainant argued that he was struggling to find new legal counsel in the weeks after the ALJ issued the D&O. The ARB, however, stated that "it is well recognized that a Complainant’s inability to find a new representative does not constitute an extraordinary circumstance that would support an equitable tolling of the filing deadline." Id. at 5 (footnote omitted).

Finally, Complainant argued that he was unable to file a timely appeal because he had not received a copy of the hearing transcript. The ARB found that this was not an extraordinary circumstance warranting equitable tolling, and that if Complainant believed the transcript was essential to his ability to file a petition, he should have asked for an extension of the filing deadline.

TIMELINESS OF PETITION FOR ARB REVIEW; ARB DID NOT ABUSE ITS DISCRETION IN UTILIZING ITS EQUITABLE POWERS TO APPLY FRAP 26(c) WHEN RECONSIDERING ITS EARLIER DISMISSAL OF COMPLAINANT’S PETITION FOR REVIEW OF THE ALJ’S DECISION WHERE IT HAD TAKEN 11 DAYS FOR COMPLAINANT TO RECEIVE THE ALJ’S DECISION

In Soo Line R.R., Inc. v. Admin. Review Bd., USDOL, No. 19-1739 (8th Cir. Mar. 4, 2021) (2021 U.S. (App. LEXIS 6286), the ALJ granted summary decision in favor of the Respondent (Petitioner Soo Line Railroad, Inc.) in a Decision and Order dated January 11, 2019. Complainant (Henin) received the Decision and Order on January 22, 2019. Complainant had filed a petition for review with the ARB on January 18, 2019. Respondent moved to dismiss the petition as untimely filed, and the ARB granted the motion. Complainant filed a motion for reconsideration explaining the circumstances. The ARB granted reconsideration and reinstated the administrative appeal as timely; but immediately dismissed the administrative complaint because Complainant had filed a complaint in federal district court on February 11, 2019 pursuant to 49 U.S.C. § 20109(d)(3) and 29 C.F.R. § 1982.114(a). The ARB noted that Complainant’s petition was untimely pursuant to 29 C.F.R. § 1982.110(a), which required filing of the petition within 14 days of the date of the decision of the ALJ, but applied Rule 26(c) of the Federal Rules of Appellate Procedure to add three days to the filing deadline for Complainant’s petition.

Respondent appealed the ARB’s reopening of the administrative claim to the Eighth Circuit. The district court action was stayed pending the Eighth Circuit appeal. The Court of Appeals noted that it appeared that the reason for Respondent’s appeal was that the ARB’s reinstatement of the administrative appeal as timely would permit Complainant to proceed de novo before the district court -- but -- if the administrative appeal was found not to be timely, the ALJ’s Decision and order would arguably become of the final order of the Secretary of Labor and not subject to judicial review.

The court first addressed whether it was appropriate for the ARB to grant reconsideration, noting that the ARB has applied a four-prong test – two of which were applicable to the instant case – “material differences in fact or law” – and “failure to consider material facts.” The court noted that for some unexplained reason – the record contained a copy of the ALJ’s Decision and Order indicating that it was issued on January 15, 2019. In addition, Complainant alerted the ARB that it had taken 11 days for the ALJ’s Decision and Order to reach counsel by regular mail. The court thus found that both prongs were satisfied, making reconsideration by the ARB appropriate.

The railroad also contended that the ARB improperly relied on FRAP 26(c) to find Complainant’s petition to be timely. The court noted that the FRAP only govern procedure in the U.S. Courts of Appeals -- but also noted that the filing period for a petition for review by the ARB is not jurisdictional and is subject to equitable medication. The court found that, here, the ARB “appropriately utilized its equitable powers to control its own docket and to recognize the record’s incongruities and the 11-day delay in service. Therefore, we find that the Board’s reconsideration, reinstatement, and dismissal of Henin’s petition was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accord with law.’ BNSF Ry. Co., 867 F.3d at 945 (citation omitted).” Slip op. at 7.

Waiver / Forfeiture

APPOINTMENTS CLAUSE CHALLENGE NOT TIMELY RAISED

In Perez v. BNSF Railway Co., ARB Nos. 2017-0014 and -0040, ALJ No. 2014-FRS-00043 (ARB Sept. 24, 2020) (per curiam), the ARB found that Respondent’s appointments clause challenge to the appointment of ALJ was not timely raised. The ARB agreed with the Solicitor’s contention that "all of the information needed to challenge the Department of Labor’s ALJ appointments was available prior to the issuance of the ALJ’s decision in this case." The ARB also noted that "it is clear that Respondent had inquiry notice as early as December 2017 when the Secretary of Labor 'ratified' the appointment of its administrative law judges. Yet, BNSF did not file a motion for supplemental briefing until almost a year later."

Respondent alternatively argues that it is entitled to a new hearing before a different ALJ under Lucia v. S.E.C., 138 S.Ct. 2044 (2018), because the ALJ was not properly appointed under the Appointments Clause of the U.S. Constitution. Art. II, § 2, cl. 2.[18] Respondent asserts that it did not waive the challenge and that its challenge was timely under Lucia as promptly filed once the Supreme Court’s decision issued. Resp. Reply at 10. In the event it loses on the merits, Respondent requests the matter be vacated and remanded for new proceedings before a different ALJ.

Riddell and the Solicitor of Labor, as amicus, argue Respondent waived its right to make an Appointments challenge. Ordinary principles of forfeiture and waiver apply to Appointments challenges. Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018).

While the ARB has the discretion to consider non-jurisdictional constitutional claims such as Respondent’s Appointments Clause challenge, such discretion is exercised in only rare or exceptional circumstances which we do not see here. Respondent raised the Appointments Clause challenge for the first time on appeal in two-sentences at the end of its petition for review. Respondent did not raise the challenge at any point during the proceedings with the ALJ although it had notice of the issue and the opportunity to do so.[19] The ARB typically does not entertain arguments that are first raised on appeal and we shall not do so now. E.g., Gattegno v. Prospect Energy Corp., et al., ARB No. 2006-0118, ALJ No. 2006-SOX-00008, slip op. at 22 (ARB May 29, 2008). Thus, we hold that Respondent has waived any Appointments challenge.[20], [21]
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[18] Which provides that only the President, “Courts of Law,” or “Heads of Departments” can appoint “Officers.”

[19] In 2016, the courts of Appeals issued conflicting decisions on Appointments Clause challenges to ALJs and in February 2017, the D.C. Circuit granted rehearing en banc of its 2016 Lucia decision. See Solicitor’s Brief at 9. If the burgeoning conflict in the courts of Appeals did not, the Secretary’s ratification of the ALJ’s appointments in December 2017 put Respondent on notice of an Appointments issue. Finally, when Lucia was decided by the Supreme Court on June 21, 2018, CSX should have promptly made its constitutional challenge. The ALJ did not decide this matter until almost six months later on December 12, 2018, giving Respondent a considerable amount of time to raise a challenge. Its failure to do so in a timely fashion is fatal to its argument.

[20] Further bolstering our decision is the fact that Respondent only asks that the Board hold that the ALJ in this matter was not properly appointed if it loses on the merits—thus, the implication that if it were to win on the merits, it would consider the ALJ’s appointment a non-issue.

[21] We note that our sister Board has issued cases consistent with our decision that Respondent’s Appointments challenge has been waived in Kiyuna v. Matson Terminals, Inc., BRB No. 19-0103, 2019 WL 2865994 (BRB June 25, 2019) and Daugherty v. Consolidated Coal Co., BRB No. 18-0341, 2019 WL 3775979 (BRB July 19, 2019).

Slip op. at 28-29.

V. REMOVAL TO FEDERAL DISTRICT COURT

When Removal Is Available

FRCP 12(b)(1) MOTION; FRSA DOES NOT SUPPORT CONTENTION THAT PLAINTIFF MAY NOT EXERCISE THE “KICK-OUT” PROVISION UNTIL THE ADMINISTRATIVE PROCESS IS COMPLETED

In Ringer v. Neb., Kan., & Colo. Ry., No. 20-cv-3056 (D. Neb. Aug. 19, 2020) (2020 U.S. Dist. LEXIS 149787), Defendant railroad filed a FRCP 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, apparently on the ground that plaintiff could not exercise the “kick-out” option before the administrative process was completed. Here, however, it was undisputed that more than 210 days had elapsed since Plaintiff filed his administrative claim, and that as of the date the federal district court complaint was filed, the Secretary of Labor had not issued a final decision. Moreover, there was nothing in the record suggesting that Plaintiff acted in bad faith. The court found nothing in the record supporting the railroad’s subject matter jurisdiction motion, and that it had jurisdiction pursuant to the “kick-out” provision at 49 U.S.C. § 20109(d)(3).

Waiver / Laches

FRSA KICK-OUT PROVISION; ALTHOUGH PLAINTIFF HAD ENGAGED IN THE ADMINISTRATIVE PROCESS FOR SEVERAL YEARS AND HAD ONLY KICKED-OUT TO FEDERAL COURT SHORTLY PRIOR TO THE SCHEDULED HEARING BEFORE AN ALJ, THE COURT DENIED THE RAILROAD’S FRCP 12(b)(6) MOTION TO DISMISS ON THE BASIS OF WAIVER OR LACHES; THE COURT NOTED THAT DEFENDANT HAD CITED NO AUTHORITY TO SUPPORT ITS MOTION, AND THAT--EVEN IF SUCH AUTHORITY EXISTED--WAIVER AND LACHES ARE FACT-INTENSIVE AND ILL-SUITED FOR CONSIDERATION AT THE PLEADING STAGE

In Chamberlin v. BNSF Ry. Co., No. 22-cv-00005 (N.D. Cal. Mar. 10, 2022) (2022 U.S. Dist. LEXIS 42887), Plaintiff had filed a FRSA retaliation complaint with OSHA. Plaintiff’s right to “kick-out” to federal court accrued in February 2018, but he proceeded with the administrative complaint. OSHA found in his favor in October, of 2020. Defendant requested an ALJ hearing, and the parties commenced discovery. Plaintiff had been proceeding pro se. He averred that he first learned of the kick-out right in late 2021 in conversations with an attorney he had retained earlier that year. Plaintiff filed the district court action in January 2022.

Defendant moved to dismiss under FRCP 12(b)(6), contending that Plaintiff waived his "kick out" right and/or that the complaint was barred by laches. The court noted that it was unclear that the filing of an action in federal court served the statutory purpose of allowing employees to avoid undue delay in administrative proceedings, given that the hearing before the ALJ had been scheduled to commence the prior month, and that while discovery from the administrative proceeding might speed up the litigation to some degree, it would likely be quite a while before a trial would occur. The court, however, denied the motion to dismiss on the ground that Defendant “presented no controlling or clear authority that the statutory ‘kick out’ right is subject to waiver. Even assuming it is, and/or that laches can apply in some instances, however, waiver and laches are both defenses, and are both generally fact-intensive and ill-suited for resolution at the pleading stage. Dismissal under Rule 12(b)(6) is inappropriate, and the motion is denied.” Slip op. at 3.

STATUTORY KICK-OUT PROVISION FOR FRSA RETALIATION COMPLAINT DOES NOT NEGATE COMMON LAW EQUITABLE RELIEF WHERE PLAINTIFF IS FOUND TO HAVE WAIVED HIS RIGHT TO KICK-OUT, AND/OR WHERE LACHES APPLIES; IN INSTANT CASE, PLAINTIFF WAITED UNTIL AFTER HE FILED AN UNTIMELY APPEAL OF THE ALJ’S DECISION TO FILE A DISTRICT COURT ACTION, AND OVER FOUR YEARS HAD PASSED SINCE THE DATE WHEN HE COULD HAVE KICKED-OUT THE CASE TO DISTRICT COURT

In Henin v. Soo Line R.R. Co., No. 19-336 (D. Minn. June 14, 2021) (2021 U.S. Dist. LEXIS 110370), the parties engaged in four months of discovery before the ALJ on Henin’s FRSA retaliation claim; Henin, however, had not taken any depositions or propounded any discovery requests. The railroad then sought summary decision from the ALJ, filing its final version of the motion in October 2017. The ALJ granted the motion in January 2019. Henin petitioned for ARB review of the ALJ’s decision a week past the limitations period. Three days after the railroad filed a motion to dismiss the ARB petition as untimely, Henin filed his federal lawsuit under the FRSA kick-out provision. The ARB ultimately found equitable reasons to accept the untimely appeal, but dismissed the petition because Henin had filed the federal action. An appeal to the 8th Circuit on the ARB’s decision to reinstate the appeal was taken by the railroad. The district court action was stayed pending this appeal. The 8th Circuit affirmed the ARB’s reinstatement, and the stay of the district court action was lifted. The railroad then moved to dismiss Plaintiff’s FRSA retaliation claim based on waiver and laches because of the extent to which he had litigated the case before the ALJ and the ARB. The court granted the motion.

The district court noted that “no court has yet precluded a railroad employee from bringing a federal lawsuit based on the employee’s pursuit of administrative remedies,” slip op. at 5-6 (footnote omitted), but also that “[t]he Eighth Circuit Court of Appeals has ruled the right to bring a federal lawsuit under FRSA may be waivable in some situations. Gunderson v. BNSF Ry. Co., 850 F.3d 962, 972 (8th Cir. 2017).” Id. at 6. In Gunderson, the 8th Circuit rejected the employee’s argument that there is an absolute right to file a kick-out de novo action assuming the delay was not due to the employee’s bad faith – and “instead found that ‘it is likely that common law principles of laches may apply to cut off an employee’s right to sue, or at least to seek equitable relief, some time after the § 20109(d)(3) action accrues.’” Id. (quoting Gunderson at 972). The 8th Circuit did not apply waiver in Gunderson because the railroad had not developed the record on waiver, and had not raised laches or estoppel issues before the district court. In the instant case, however, Defendant was squarely raising these defenses and had developed the record in that regard.

The district court first determined that Henin waived the right to litigate before the court where, despite being clearly on notice of the right to file a federal action, he did not file his federal complaint until after the ALJ issued his decision and he failed to file a timely appeal with the ARB – which was three years after he could have filed a federal action.

The district court also determined that laches applied, finding that the railroad established prejudice from the long delay between the 2015 incidents of which Henin complained, the Henin’s federal filing. The court found that “Henin’s delay in the exercise of his right to bring a federal lawsuit smacks of forum-shopping, and his current claim that he requires more discovery is not well-taken in light of his failure to engage in any discovery before the ALJ.” Id. at 8.

The court also found that, even if dismissal on equitable grounds was not warranted, summary judgment should be granted on the administrative record because the only support for the contributory factor causation element of the FRSA retaliation claim was temporal proximity, which the courts have held is not sufficient standing alone to create a genuine factual issue. The court cited Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791-792 (8th Cir. 2014).

Dismissal of DOL Complaint, Procedure

KICK-OUT OF SOX COMPLAINT TO DISTRICT COURT; FAILURE OF PLAINTIFF TO SERVE PETITION FOR ARB REVIEW ON RESPONDENT DID NOT DEPRIVE DISTRICT COURT OF JURISDICTION

In Mitchell v. National Railroad Passenger Corp. (AMTRAK), No. 20-cv-01319 (E.D. Pa. Sept. 1, 2020) (2020 WL 5211205), Plaintiff filed a FRSA retaliation complaint in U.S. District Court after the ALJ dismissed the administrative complaint for failure of the complainant to timely respond to an order to show cause why the matter should not be dismissed for failure to attend the pre-hearing conference. The complainant’s counsel had, after the deadline for responding to the order to show cause, filed with the ALJ a letter advising that he intended to file an action in federal court. Plaintiff had also filed an appeal to the ARB. Presently before the District Court was Defendant’s motion to dismiss on the ground that the ARB appeal had not been perfected because it was not served on AMTRAK in compliance with the regulation at 29 C.F.R. § 1982.110(a). The court denied the motion, stating:

Although the regulation requires the petition “to be served on all parties . . . at the time it is filed with the ARB,” it does not provide any consequences for a failure to serve it. [29 C.F.R.] § 1982.110(a). Rather, it states only that the petition is deemed filed on the date it is postmarked, faxed, emailed or, if hand delivered, received. Id. . . . AMTRAK does not contend that it was prejudiced by Mitchell’s failure to serve it with his ARB petition. AMTRAK will have an opportunity to answer the complaint and defend the case. To dismiss this action in the absence of prejudice would be inconsistent with the regulation’s intent to provide “ready access to federal court.” Procedures for the Handling of Retaliation Complaints Under the National Transit Systems Security Act and the Federal Railroad Safety Act, 80 Fed. Reg. 69115, 69131.

Slip op. at 7.

VI. PROCEDURE BEFORE AND REVIEW BY FEDERAL COURTS

Discovery

DISCOVERY; ATTORNEY-CLIENT PRIVILEGE IS NOT INVOKED MERELY BECAUSE AN ATTORNEY WAS COPIED ON AN E-MAIL

DISCOVERY; WORK-PRODUCT PRIVILEGE APPLIES TO DOCUMENT PREPARED IN ANTICIPATION OF LITIGATION BY ANOTHER PARTY, OR THE OTHER PARTY’S REPRESENTATIVE SUCH AS A GENERAL MANAGER OR A MEMBER OF A BOARD OF DIRECTORS; ITS APPLICATION DOES NOT REQUIRE AN ATTORNEY TO BE INVOLVED

DISCOVERY; COURT DOES NOT HAVE THE POWER TO COMPEL AN EMPLOYER TO PRODUCE FOR DEPOSITION FORMER EMPLOYEES, OVER WHOM IT NO LONGER HAS CONTROL; A PLAINTIFF, HOWEVER, MAY SUBPOENA SUCH EMPLOYEES REGARDLESS OF THEIR CURRENT EMPLOYMENT STATUS WITH THE DEFENDANT

In Pfeifle v. Portland Terminal R.R. Co., No. 3:19-cv-01436 (D. Or. Jan. 18, 2022) (2022 U.S. Dist. LEXIS 8880; 2022 WL 154678), the court addressed two motions to compel filed by Plaintiff in his FELA/FRSA case. This casenote addresses some of the noteworthy rulings.

Emails – mere copying of attorney does not trigger attorney-client privilege; work-product privilege, however, applies to parties or their representatives

Plaintiff sought production of three emails from Defendant's privilege log. Defendant first argued that emails copied to its attorney were covered by attorney-client privilege on the ground that the sender was its General Manager; that disciplining employees such as Plaintiff is part of his corporate responsibilities; and the fact that Defendant’s attorney was copied on the email showed awareness that the communications related to the furnishing of legal advice. The court was not persuaded, writing:

Even so, simply copying the company's attorney does not bring a communication within the ambit of the attorney-client privilege. See United States v. Heine, No. 3:15-cr-238-SI, 2016 U.S. Dist. LEXIS 145967, 2016 WL 6138245, at *2 (D. Or. Oct. 21, 2016) (quoting Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 630 (D. Nev. 2013) ("[T]he court agrees that merely copying or 'cc-ing' legal counsel, in and of itself is not enough to trigger the attorney-client privilege. Instead, each element of the privilege must be met when the attorney-client privilege is being asserted."). Here, Defendant has made no showing whatsoever that the communication was made for the purpose of securing legal advice from the attorney. This same reasoning applies with equal or greater force to the remaining email, which Defendant does not argue was sent to counsel and about which Defendant has not provided any detail.

Slip op. at 5-6.

The court, however, found that all three emails were protected by the work-product doctrine, as they were all sent after Plaintiff filed his lawsuit, and all regarded the lawsuit. Although the e-mails were from Defendant’s General Manager to the Board, none of whom were attorneys, the court found this was immaterial because work-product protection under FRCP 26(b)(3)(A) extends to documents prepared in anticipation of litigation by another “party,” or the other party’s representative.

Log of personal injury claims – conclusory assertion that HIPAA would be violated

Plaintiff also sought production of a BNSF log of employee personal injury claims and lawsuits involving switches at the same locations where Plaintiff worked and was injured. Defendant represented that the log contained four types of relevant claims. Defendant’s privilege log listed this information as confidential or privileged information about persons not party to the lawsuit, citing HIPAA and other privacy laws. The court found that Defendant need not produce the logs on a claim that was unrelated to the instant lawsuit, and on a claim that was outside the scope of the motion to compel. As to the other two claims, Defendant had produced the names of two employees involving those similar claims -- but Plaintiff requested the log itself. The court noted that Defendant’s assertion that unredacted production could violate HIPAA was conclusory, and that Defendant had not argued that it was a covered entity under HIPAA. The court thus granted the motion to compel as to the two related claim entries on the log. The Court stated that Defendant could redact PII not relevant to the case, such as dates of birth or Social Security numbers.

Depositions – Former Employees

Plaintiff’s motion to compel asserted that Defendant refused to produce certain employees for deposition. Defendant represented that two of persons Plaintiff sought to depose were former employees. The court determined that Plaintiff was free to depose these witnesses regardless of their employment status with Defendant – but that the court could not compel Defendant to produce witnesses over whom it has no authority. The court said that Plaintiff could subpoena the witnesses.

ATTORNEY-CLIENT PRIVILEGE REGARDING COMMUNICATIONS WITH IN-HOUSE COUNSEL; TO BE PRIVILEGED SUCH COMMUNICATIONS MUST BE LEGAL ADVICE, RATHER THAN BUSINESS ADVICE

WORK-PRODUCT PRIVILEGE; MAGISTRATE DID NOT CLEARLY ERR IN DETERMINING THAT THE TRIGGERING ANTICIPATION OF LITIGATION COINCIDED WITH THE DATE OF INJURY WHERE PLAINTIFF WAS ALREADY ENGAGED IN LITIGATION WITH DEFENDANT IN DIFFERENT MATTER, MAKING ADDITIONAL LITIGATION REASONABLY FORESEEABLE

WORK-PRODUCT PRIVILEGE; MAGISTRATE DID NOT CLEARLY ERR IN NOT ORDERING RELEASE OF REDACTED DOCUMENTS WHERE PLAINTIFF CITED NO CASELAW MANDATING SUCH, AND WHERE MAGISTRATE HAD ORDERED DEFENDANT TO DISCLOSE UNDERLYING FACTUAL INFORMATION RELEVANT TO THE CLAIM AND DEFENSE

In Carlson v. BNSF Ry. Co., No. 19-cv-1232 (D. Minn. July 19, 2021) (2021 U.S. Dist. LEXIS 133895; 2021 WL 3030644), Plaintiff moved to compel discovery relating to his Federal Railroad Safety Act (FSRA), Federal Employers' Liability Act (FELA) and Locomotive Inspection Act (LIA) claims. Following in camera review, the magistrate judge denied the motion to compel, finding that the documents in question were “appropriately withheld either as work product, attorney-client privileged communications or both." Slip op. at 2 (quoting Magistrate’s decision). The district court applying the clearly erroneous or contrary to the law standard of review, affirmed the magistrate judge’s determinations.

Attorney-client privilege

On the question of attorney-client privilege, the communications in question were between in-house counsel and Defendant’s employees. The court noted in this regard:

The attorney-client privilege protects communications between in-house counsel and corporate employees when those communications are made for the purpose of securing or providing legal advice. See Upjohn Co. v. United States, 449 U.S. 383, 389–90 (1981); see also PaineWebber Grp., Inc. v. Zinsmeyer Trs. P’ship, 187 F.3d 988, 991 (8th Cir. 1999). Because in-house counsel serve as both legal advisors and business advisors, a court must consider whether the advice at issue primarily is legal advice, which is privileged, or business advice, which is not. See Cardenas v. Prudential Ins. Co. of Am., Nos. 99-1421JRTFLN, 99-1422JRTFLN, 99-1736JRTFLN, 2004 WL 234404, at *2 (D. Minn. Jan. 30, 2004). Only when an attorney acts in the role of legal counselor while communicating information to corporate employees does that information become subject to the attorney-client privilege. See Mission Nat’l Ins. Co. v. Lilly, 112 F.R.D. 160, 163 (D. Minn. 1986).

Id. at 4.

In the instant case, the court conducted its own in camera review of the documents, and found they “involve communications between BNSF's in-house counsel and BNSF employees, and the documents were created for the purpose of either providing or seeking legal advice.” Id. at 4-5. The court thus determined that the magistrate’s findings were neither clearly erroneous nor contrary to law.

Work product privilege

The magistrate judge also found that certain documents were subject to the work-product privilege. The Plaintiff first argued that the magistrate erred by setting the date of anticipated litigation on the date of the alleged injury. The court stated: “Although the mere occurrence of an accident does not always establish whether litigation was reasonably anticipated, see United Nat’l Ins. Co. v. Gunderson, Inc., No. 08-678 (MJD/JJK), 2010 WL 11537511, at *6 (D. Minn. May 20, 2010), a court may find that litigation was reasonably anticipated from the moment an accident occurs, see Almaguer v. Chi., Rock Island & Pac.R.R. Co., 55 F.R.D. 147, 149 (D. Neb. 1972).” Id. at 6. The court noted that in the instant case, when the accident occurred, Plaintiff was already engaged in litigation against Defendant in a different matter. The court found that the magistrate judge's conclusion that, this fact alone rendered litigation over the work related injury in question reasonably foreseeable, was neither clearly erroneous nor contrary to law.

Plaintiff argued that the documents in question were created in the ordinary course of business and thus were not privileged. Plaintiff contended that some of the documents would have been created regardless of whether he filed a lawsuit. The court, however, found that this contention did not accurately reflect the facts of this case – the Defendant had “’received no other reports of rough track or accidents at the location where Carlson claims to have been injured,’ and Carlson was already engaged in other litigation against BNSF for work-related injuries. Id. at 7 (quoting magistrate’s decision). Having conducted its own in camera review, the court concluded that the magistrate judge's ruling was neither clearly erroneous nor contrary to law.

Plaintiff contended before the district court that he has a substantial need for the documents “so that he may understand how BNSF made its decisions and whether they were prompted by intentional retaliation.” Id. The court declined to consider this argument as it had not been made before the magistrate judge.

Plaintiff argued that the magistrate judge should have ordered redacted copies of the documents to be produced. The court, however, determined that not ordering release of redacted copies was neither clearly erroneous nor contrary to law. The court noted that Plaintiff had not cited any supporting caselaw, and that magistrate judge ordered Defendant to disclose the underlying factual information relevant to the claim and defenses. The court stated that the magistrate’s order ensured that Plaintiff had the relevant information he needed to prosecute this case.

WORK-PRODUCT DOCTRINE; COURT REJECTS BNSF’S APPARENT POSITION THAT ANY DOCUMENT OR COMMUNICATION GENERATED PURSUANT TO AN INVESTIGATION OR TERMINATION OF AN EMPLOYEE IS WORK PRODUCT

PROTECTIVE ORDER ISSUED RELATING TO PRODUCTION REQUEST FOR CALENDARS OF ALL PERSONS WHO ATTENDED A BOARD MEETING, AND FOR INSPECTION AND COPYING OF NUMEROUS ELECTRONIC DEVICES FOR VARIOUS BNSF EMPLOYEES; COURT FINDS SUCH REQUESTS TO BE BORDERLINE HARASSMENT

PROTECTIVE ORDER IS NOT WARRANTED MERELY BECAUSE NAMED DEPONENTS WERE PREVIOUSLY DEPOSED IN SIMILAR LITIGATION IN WHICH PLAINTIFF WAS NOT A PARTY

30-DAY DEADLINE TO RESPOND TO DISCOVERY REQUESTS IS NOT TO BE APPLIED MECHANISTICALLY; FILING OF MOTION FOR PROTECTIVE ORDER SUFFICIENT TO PRESERVE OBJECTIONS

MEET–AND-CONFER REQUIREMENT PRIOR TO FILING OF MOTION FOR PROTECTIVE ORDER; COURT FINDS DEFENDANT’S STATEMENT THAT IT ENGAGED IN PHONE CONVERSATION WITH PLAINTIFF’S COUNSEL SUFFICIENT TO AVOID DENIAL OF MOTION FOR PROTECTIVE ORDER, ALBEIT COURT WAS SKEPTICAL AS TO WHETHER DEFENDANTS WERE ENGAGED IN A GENUINELY PRODUCTIVE SESSION; COURT WARNED OF ITS EXPECTATION THAT PRIVILEGE CLAIMS WOULD BE BASED ON CAREFUL EXAMINATION AND NOT MERELY A BLANKET ASSERTION

In Voelker v. BNSF Ry. Co., No. 18-cv-00172 (D. Mont. Nov. 17, 2020) (2020 U.S. Dist. LEXIS 214992; 2020 WL 6742865), the court ruled on pending discovery motions filed by both Plaintiff and Defendant. The court expressed dismay that the parties’ discovery squabbles had resulted in repeated requests for judicial resolutions. The court cited other cases involving similar FRSA litigation in the same district, and the seven requests by the parties for judicial intervention in the present case. The court’s order reflects some frustration with positions taken by both parties in during discovery. This casenote touches on some of the more noteworthy rulings.

Work-product doctrine does not apply merely because documents related to an investigation relating to termination of employee

The court reviewed in camera a number of e-mail documents that BNSF asserted were protected from unredacted disclosure because of attorney-client privilege and/or the work-product doctrine. In regard to a set of the e-mails that the court found were not protected by attorney-client privilege, the court went on to consider whether they were nonetheless afforded work-product protection. The court stated:

Having examined the emails the Court can readily conclude that none of the emails contained in the above-enumerated list were made in anticipation of litigation. Instead, these emails constitute discussions between BNSF employees both before and after Mr. Voelker was terminated without indication that such communications would not have occurred “but for the pendency or imminence of litigation.” See, e.g., E.E.O.C. v. Safeway Store, Inc., 2002 WL 31947153, *5 (N.D. Cal. 2002).

BNSF appears to assert that any document or communication generated pursuant to the investigation or termination of an employee is protected by the work-product doctrine. But this approach would distort the qualified work-product privilege beyond meaning and unduly restrict the fact-finding process in litigation of this sort. Additionally, as noted above, the work-product doctrine does not extend to documents produced in the ordinary course of business. In short, the emails enumerated above in items 1 through 26 do not fall within the scope of the work product doctrine or the attorney-client privilege.

Slip op. at 12-13.

Request for calendars of attendees at a board meeting, and for copying of numerous electronic devices of BNSF employees; court finds request unduly burdensome and borderline harassing

The court found good cause to issue a protective order as to some of Plaintiff’s production requests where they sought irrelevant information, were unduly burdensome, and were duplicative of requests already propounded in the litigation. The court noted, for example, a production request for calendars of all persons present at Plaintiff’s PEPA Board meeting. The court also noted a request for production for inspection and copying numerous electronic devices for various BNSF employees. The court stated that “[t]hese requests are unduly burdensome, overbroad, and borderline harassing.” Id. at 20.

[Editor’s note: Although the instant order did not define “PEPA,” decisions in other FRSA cases involving BNSF indicate that PEPA is an acronym for “Policy for Employee Performance Accountability.”]

Prior depositions of officials in separate case to which Plaintiff was not a party is not grounds for a protective order

The court found meritless BNSF’s motion for a protective order prohibiting Plaintiff from deposing certain officials on the ground that they had already been deposed in the “Wooten litigation” in the same district. The court stated:

Mr. Voelker also argues that the cases relied on by BNSF for the proposition that duplicative depositions are disfavored only apply to situations in which multiple depositions were sought in the same litigation. The Court agrees.

Notably, BNSF has not provided the Court with any authority for the proposition that when a plaintiff conducts a deposition in one case, a completely different plaintiff is prohibited from subsequently deposing that individual in a different case. This is unsurprising, because it would defy reason to conclude that when Ms. Ahern and Mr. Wunker were deposed in the Wooten litigation, Mr. Voelker, who was not even a party to that lawsuit, was afforded adequate opportunity to discover evidence regarding his own termination. In short, BNSF’s argument that depositions of Ms. Ahern and Mr. Wunker would be duplicative because they were deposed in the Wooten litigation is without merit.

Id. at 21.

30-day deadline to respond to discovery requests is not to be applied mechanistically; filing of motion for protective order sufficient to preserve objections

Plaintiff contended that BNSF’s failure to timely file and serve responses to his fourth set of discovery requests constituted a waiver of any objections. The court noted that the FRCP, local district rules, and Ninth Circuit caselaw all supported such a waiver where there was an untimely objection. See FRCP 33(b)(2), 34(b)(2)(A); L.R. 26.39(a)(4); Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473, 1476, n.5 (9th Cir. 1992). The court, however, noted that “despite Ninth Circuit authority harshly concluding the failure to level objections within 30 days amounts to an automatic wavier, there is also authority that this Court is not to mechanistically apply the 30-day deadline, and instead, engage in a context-specific analysis. Burlington Northern, 408 F.3d at 1149.” Id. at 16. The court noted that the Burlington Northern case involved BNSF. The court noted that – in the instant case -- prior to expiration of the deadline to respond, BNSF had filed its motion for a protective order. The court stated that “not only does this arguably constitute the timely leveling of objections to those requests by BNSF, but even if it did not, BNSF’s motion for a protective order prior to the response deadline sufficiently preserved its objections to those requests. As such, no waiver has occurred.” Id. at 17.

Meet-and-confer requirement; court’s skepticism whether BNSF engaged in genuinely productive session, and warning that BNSF must carefully examine documents before blanket assertions of attorney-client privilege

Plaintiff also argued that BNSF failed to comply with the meet-and-confer obligation of FRCP 26 prior to filing its motion for a protective order. The court, however, accepted BNSF counsel’s response that it conducted a telephone conversation with Plaintiff’s counsel in which BNSF’s objections to the discovery requests were discussed. The court thus found no basis for denying BNSF’s motion for a protective order based on an alleged meet–and-confer failure. The court, however, noted “that BNSF’s blanket refusal to respond to 106 requests for production is troubling and the Court is skeptical that a genuinely productive meet and confer session as to that many requests could be accomplished with a single phone call. The Court warns BNSF not to dispose of its discovery obligations with such haste in the future.” Id. at 18, n.5. The court also warned BNSF to carefully examine responsive documents before claiming that they are protected by attorney-client privilege, the court noting that many claims of such privilege had been found by the court to be without merit in the court’s in camera review of e-mails discussed earlier in the order.

DISCOVERY IN FRSA RETALIATION CLAIM IS OFTEN NECESSARILY BROAD IN VIEW OF FACT THAT CONTRIBUTING FACTOR CAUSATION CAN BE ESTABLISHED THROUGH CIRCUMSTANTIAL EVIDENCE

DISCOVERY IN FRSA RETALIATION CLAIM; COURT EXPRESSES FRUSTRATION WITH PARTIES WHERE DISCOVERY ISSUES HAD BEEN RAISED IN PRIOR SIMILAR LITIGATION INVOLVING SAME COUNSEL; COURT INDICATES ITS HOPE THAT COUNSEL WILL DISCERN A PATTERN AND CONSISTENCY IN HOW DISCOVERY ISSUES ARE VIEWED IN THE DISTRICT

DISCOVERY IN FRSA RETALIATION CLAIM; COURT REFERS TO RESOLUTION FROM PRIOR SIMILAR LITIGATION IN REGARD TO COMPARATOR DATA, DEFENDANT’S PRACTICES IN REGARD TO ELECTRONICALLY STORED INFORMATION, MANAGEMENT COMPENSATION AND BONUSES, DATABASE SEARCH, AND DESIGNATION OF RULE 30(B)(6) DEPONENTS

DISCOVERY IN FRSA RETALIATION CLAIM; COURT DECLINES TO IMPOSE ADDITIONAL RELIEF BEYOND RULING ON MOTIONS TO COMPEL, SUCH AS ATTORNEY FEES, APPOINTMENT OF SPECIAL MASTER, AND PREPARTION OF A JOINT STATEMENT AND DISCOVERY PLAN; INSTEAD EXORTS COUNSEL TO WORK TO RESOLVE DISCOVERY ISSUES AND UTILIZE MOTION PRACTICE ONLY AS A LAST RESORT

IN CAMERA REVIEW; DEFENDANT NEED NOT FILE A MOTION FOR LEAVE TO FILE UNREDACTED EMAILS UNDER SEAL WHERE COURT GRANTED UNOPPOSED MOTION FOR IN CAMERA REVIEW AND DIRECTED PRODUCTION TO THE COURT UNDER SEAL PURSUANT TO LOCAL RULE

In Voelker v. BNSF Ry. Co., 18-cv-172 (D. Mon. Oct. 20, 2020) (2020 U.S. Dist. LEXIS 194330; 2020 WL 6149553), the District Court ruled on Plaintiff’s motions to compel discovery in an action based on several federal and state laws. In regard to the discovery motions, the court indicated that Plaintiff’s FRSA retaliation claim was particularly pertinent, that the “contributing factor” causation element of an FRSA claim is particularly important in resolving discovery disputes, and that such causation can be established through circumstantial evidence. Accordingly, the court was “mindful that broad sweeping discovery is often necessary to establish an FRSA claim and is hesitant to render the claim unsuccessful by virtue of its undue constraint of the discovery process.” Slip op. at 4. The court, in ruling on the motions to compel was explicitly influenced by prior FRSA litigation in Jones v. BNSF Ry. Co., 2019 WL 6728429, *3 (D. Mont. 2019) (CV 18–146–M–DLC), and Brewer v. BNSF Ry. Co., 2016 WL 11695454, *2 (D. Mont. 2016) (CV 14–65–GF–BMM–JTJ). This casenote summary below is illustrative, and does not address all the discovery issues addressed in the court’s order.

Comparator data

In regard to Plaintiff’s discovery requests for comparator data, the court indicated irritation that this was well-trodden ground from past similar litigation. The court stated: “The Court finds the issue of comparator data old and tired (as should parties' counsel). This discovery issue has been litigated in similar cases time and time again. See Jones, 2019 U.S. Dist. LEXIS 213475, 2019 WL 6728429, *4 (collecting prior cases). The Court agrees, as it has in the past, that ‘the plaintiff is entitled to much of what he requests.’ Id.” Id. at 8. In regard to an interrogatory request for identifying circumstances in which BNSF employees from 2015 to the present had disseminated reports or information outside BNSF similar to that produced by Plaintiff, the court found that the request was relevant and proportional and appropriately limited in time. The court recognized BNSF’s argument that it would be difficult to ascertain whether or to what extent its employees may have disseminated such reports or information outside BNSF, but stated that it trusted that BNSF would make a good-faith effort to acquire any and all responsive information.

Information about BNSF practices on ESI; internal systems to ensure uniform application of employment rules

The court ordered BNSF to respond to Plaintiff’s interrogatories seeking identification of persons having the most knowledge of BNSF’s systems and how it compiles, stores and produces electronic information relevant to the case. The court recognized that once of Plaintiff’s interrogatories was difficult to track, and construed it as “seeking documents contained in BNSF’s internal systems that serve to ensure uniform application of the employment rules BNSF maintains Mr. Voelker violated.” Id. at 13. The court noted that BNSF had apparently provided information about employees disciplined for violating the same rules as had Plaintiff, but found that this was not the information sought. Rather, the court ordered BNSF to “produce any and all documents contained within BNSF’s internal systems designed to ensure uniform application of the rules BNSF maintains Mr. Voelker violated.” Id. at 14. The court directed that if BNSF does not possess responsive documents it should respond as such.

Management compensation and bonus structure

Plaintiff sought discovery on BNSF's management compensation and bonus structure; BNSF objected that certain information was not relevant to any claim or defense in the case and was harassing, and violated employee’s’ right to privacy. The court, citing prior litigation, found this issue to have been ruled in similar litigation where it was found that such information was both relevant and proportional. The court stated: “The confidentiality objections raised by BNSF have previously been overruled by this Court as ‘simply . . . not the sort of sensitive personal information giving rise to a valid objection to discovery.’” Id. at 15 (citing Jones, 2019 WL 6728429 at *6). The court, however, permitted BNSF not to produce such information in relation to two employees who played no role in the events giving rise to the case, and found that the discovery request needed to be narrowed to the years near the relevant events presented by the lawsuit.

Database search

Plaintiff made a number of discovery requests that would require database searches. The court determined that, as in past similar litigation, the resolution of the discovery dispute was the identification of the search terms to be applied. The court noted that Plaintiff had not provided any search terms. The court thus, consistent with what it did in the prior litigation, ordered BNSF to search for ten search terms of Plaintiff’s choosing.

Designation of Rule 30(b)(6) deponents; information on deletions, modifications and alterations and whether such information made be restored

Again applying rulings from prior similar litigation, the court found that Plaintiff was entitled to designation by Respondent of Rule 30(b)(6) deponents on: “(1) basic ESI; (2) ten custodial data sources likely to have discoverable information; (3) non-custodial data sources likely to have discoverable information; (4) BNSF’s organizational policies and procedures governing ESI; and (5) BNSF’s ESI data repositories containing communications related to Voelker’s termination.” Id. at 26.

In regard to Plaintiff’s request for a Rule 30(b)(6) deponent on “other communications [that] may have been deleted, modified, or altered and methods, programs or software that could search for or recover such ESI data/communications,” the court noted that “the latter portion of the request certainly tows the line between permissible discovery and the more disfavored meta-discovery.” The court stated in this regard:

However, the designation of a deponent who can testify regarding whether data in the systems at issue has been “deleted, modified, or altered” and correspondingly whether such data can be restored to its original condition is sufficiently related to the rest of the request to justify compulsion. Indeed, given that an FRSA claim can be proven through circumstantial evidence, such an inquiry may very well reveal crucial evidence. Additionally, because BNSF will have to produce a deponent for the rest of the request, additional designations related to the deletion, modification, or alteration of information in such systems is unlikely to impose an undue burden or increase the expense associated with the discovery process. As such, the Court will grant Mr. Voelker’s motion to compel a response to his sixth topic. It is ordered that BNSF shall designate a proper deponent or deponents capable of testifying as to the information enumerated in the sixth topic.

Id. at 30-31 (emphasis as in original).

Discovery requests on which BNSF had already complied; Defendant cannot produce what it does not have

On a number of discovery requests on which a motion to compel was sought, the court found that Plaintiff’s requests were relevant and proportional, but that BNSF had complied with the request and that was nothing further to compel.

Requested relief; attorneys’ fees and costs; special master; etc.

Plaintiff requested a variety of relief beyond compulsion of responses to the discovery requests. The court found that such relief was either improper or already addressed.

The court found that an award of attorneys’ fees and costs would be “unjust” under FRCP 37(a)(5)(A)(ii)-(iii), as the court had not granted Plaintiff’s motion in full, the court having “concluded that in some instances Mr. Voelker was entitled to an additional response and in other instances BNSF had fully complied with its discovery obligations,” and having found that BNSF's refusal to respond to certain requests was substantially justified. The court stated: “Finally, as stated in previous orders, the Court trusts that counsel will continue to ‘discern a pattern and consistency in how judges in this district view’ the discovery issues raised in Brewer, Wooten, Jones, and now this case. Jones, 2019 U.S. Dist. LEXIS 213475, 2019 WL 6728429 at * 11.”

As to Plaintiff’s other requests for special relief, the court found

that this was not a special case in which the utilization of a special master was warranted;
that preparation of a joint statement and discovery plan was not needed at that time, exhorting instead that counsel should “continue to work together to resolve discovery issues, utilizing motions practice only as a last resort when all other efforts to reach an agreement on the issue have failed”;
that the court had already addressed postponement of deadlines in the case.

In camera review

Plaintiff also sought production of various emails in redacted form. BNSF maintained that such redacted emails were protected by the attorney-client privilege and/or the work product doctrine. Plaintiff requested that the court compel production of the emails or conduct an in camera review. BNSF did not object to in camera review. The court ordered BNSF to produce unredacted copies of the emails by filing them under seal pursuant to Local Rule 5.2, noting that leave of the Court to file under seal was not required.

APEX DEPOSITIONS OF HIGH-LEVEL EXECUTIVES; DEPOSITIONS QUASHED WHERE DEFENDANT PRESENTED AFFIDAVITS DEMONSTRATING EXECUTIVES’ LACK OF PERSONAL, DIRECT KNOWLEDGE OF PLAINTIFF’S TERMINATION AND THAT OTHER AVENUES OF DISCOVERY WERE AVAILABLE

In Voelker v. BNSF Ry. Co., No. 18-cv-172 (D. Mont. Dec. 19, 2019) (2019 U.S. Dist. LEXIS 219462; 2019 WL 6910167), Defendant filed a motion to quash depositions and for a protective order regarding senior management-level executives who lacked knowledge of the events central to the litigation. The court granted the motion. The court first outlined the law regarding “apex depositions.”

   “The Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). In Brewer v. BNSF Railway Co., No CV 14-65-GF-BMM-JCL (Oct. 16, 2015), this Court adopted the framework applied by many other district courts regarding “apex depositions,” or depositions of high-level executives with minimal direct involvement in the events giving rise to a case. Apex depositions present a substantial risk of “annoyance, embarrassment, oppression, or undue burden or expense,” and they are unlikely to elicit relevant testimony, even under the broad standard of relevance that applies for purposes of discovery. Fed. R. Civ. P 26(b)(1), (c)(1).

   As the Northern District of California has noted, “when a party seeks the deposition of a high-level executive (a so-called ‘apex’ deposition), courts have ‘observed that such discovery creates tremendous potential for abuse or harassment.’” Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259,263 (N.D. Cal. 2012) (quoting Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004)). “In determining whether to allow an apex deposition, courts consider ( 1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.” Id. (quoting In re Google Litig., No. C 08-03172 RMW (PSG), 2011 WL 4985279 (N.D. Cal. Oct. 19, 2011)).[2] Nonetheless, the “party seeking to prevent a deposition carries a heavy burden to show why discovery should be denied,” and “it is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances.” Id. (internal quotation marks and citation omitted).

   ____

    [2] Citing Robinett v. Opus Bank, No. C12-1755MJP (W.D. Wash. Oct. 30, 2013), BNSF suggests that these two considerations are elements rather than factors and that the party seeking deposition bears the burden of establishing both elements. The Court disagrees with BNSF’s formulation of the standard. As it did in Brewer, it applies the more flexible standard set forth in Apple Inc., which appropriately allocates the burden to the party seeking a protective order and affords the court the discretion generally available in pretrial matters.

Slip op. at 3-4 (footnotes omitted). In the instant case, Defendant met its “heavy burden” of showing why the depositions should not be taken absent further factual development—specifically: Defendant submitted declarations of each of the executives noticed for deposition (save for one who worked for a different company); the affidavits demonstrated that the noticed individuals did not have personal, direct knowledge of Plaintiff’s termination; and other, less intrusive methods of discovery were open to Plaintiff. The court, however, ruled that if Plaintiff discovers new, additional information showing that any individual has direct and/or unique knowledge of the events surrounding his termination, he may either stipulate to a deposition with Defendant, or if a stipulation cannot be reached, file a motion with the Court seeking an exception to the order.

DISCOVERY; DRAFT EXPERT REPORT PREPARED BECAUSE OF PROSPECT OF LITIGATION

In Smith-Bunge v. Wis. Cent., Ltd., No. 18-1251 (8th Cir. Dec. 27, 2019) (2019 U.S. App. LEXIS 38569; 2019 WL 7198351), Plaintiff, who had brought a FRSA retaliation suit, appealed the district court’s grant of a protective order regarding Plaintiff’s discovery request for draft drawings of an accident scene and draft expert reports by the crash expert hired by Defendant. Plaintiff acknowledged that an expert’s materials are protected under FRCP 26(b)(4), but argued that the person hired by Defendant was not an expert witness but only an ordinary witness. The court of appeals found that the district court had not abused its discretion in granting the protective order. The court of appeals wrote:

On September 19, 2014, a day after the crash, Smith-Bunge’s counsel asked Wisconsin Central to place a litigation hold. A month later, Wisconsin Central retained Rogers to provide “litigation support.” Rogers then investigated the crash and prepared recommendations. The district court did not abuse its discretion in concluding Rogers acquired the information in preparation for trial, so he was an expert witness whose work is protected under Rule 26(b)(4). See Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987), quoting 8 C. Wright and A. Miller, Federal Practice and Procedure § 2024, at 198-99 (1970) (“[T]he test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.”).

DISCOVERY; DEPOSITION OF OPPOSING COUNSEL; ATTORNEY-CLIENT PRIVILEGE

In Smith-Bunge v. Wis. Cent., Ltd., No. 18-1251 (8th Cir. Dec. 27, 2019) (2019 U.S. App. LEXIS 38569; 2019 WL 7198351), Plaintiff, who had brought a FRSA retaliation suit, appealed the district court’s blocking of a deposition of Defendant’s counsel. Plaintiff argued that the district court should have applied the test from Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002), which permits deposing an opposing counsel if a party “seeks relevant information uniquely known by [the] attorneys about prior terminated litigation, the substance of which is central to the pending case.” Id. at 731. The court, however, held that Pamida was distinguishable—that case being about recovery of legal expenses—whereas in the instant case Plaintiff was seeking to discover whether counsel spoke with other of Defendant’s employees about Plaintiff’s earlier lawsuit and whether his prior suspension motivated his termination. The court found that neither piece of information was peculiarly within counsel’s knowledge, and that Defendant had not waived privilege.

The court found instead that Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986) applies. The court in that case held that a party may depose an opposing counsel if the information sought is: (1) not available through other means; (2) relevant and non-privileged; and (3) crucial to the preparation of the case. Id. at 1327. The court found that Plaintiff had not meet the first and second factors.

First, Plaintiff had other means, such as asking other employees, to discover whether the attorney spoke with other employees and whether a past suspension motivated the termination. Plaintiff asserted that he suspected that the other employees had “selective amnesia” during their depositions. The court, however, stated that “a party cannot depose opposing counsel to explore suspicions about opposing witnesses. See Shelton, 805 F.2d at 1327-28 (rejecting deposition where ‘plaintiffs’ counsel indicated that he was asking [counsel] these questions to determine whether [defendant] had in fact truthfully and fully complied with his document requests and interrogatories’).”

Second, the court held that the information was privileged. The court noted that Plaintiff had not identified any statements from the attorney outside of the attorney-client privilege, and had not attempted to narrow his inquiry to respect the privilege. Although Plaintiff argued that the attorney was merely a conduit for funds, or a scrivener, or a business advisor, Defendant’s attorney sworn that all of her communications had been strictly in her capacity as counsel for the Defendant for the purpose of providing legal advice on employment-related issues, that she did not make business decisions. The court stated that Plaintiff had not presented countervailing facts.

The court thus determined that that the district court did not abuse its discretion in granting Defendant’s motion for a protective order.

DISCOVERY OF COMPARATOR DATA; COURT ORDERS PRODUCTION OF THREE YEARS OF DATA ON A NATIONWIDE BASIS OF EMPLOYEES ACCUSED OF VIOLATING SAME WORK RULE AS THE ONE APPLIED TO PLAINTIFF (AS OPPOSED TO THE SAME SPECIFIC CONDUCT); COURT ALLOWS DEFENDANT TO USE INITIALS RATHER THAN NAME AS IDENTIFIERS OF COMPARATOR EMPLOYEES

In Jones v. BNSF Ry. Co., No. 18-cv-146 (D.Mont. Dec. 11, 2019) (2019 U.S. Dist. LEXIS 213475; 2019 WL 6728429), the court addressed a variety of discovery disputes in an FRSA retaliation action. One of the disputes concerned comparator data. BNSF contended that Plaintiff’s discovery request was too broad. It offered to provide two years rather than seven years of data; provide Montana-specific rather than company-wide data; and provide data on those accused of same conduct as Plaintiff rather than same rule violations. The court noted that the attorneys in this matter were already familiar with the court’s views on entitlement to comparator data from prior FRSA litigation. The court stated that “[d]ata regarding similarly situated employees may tend to confirm or deny Jones’s theory that he was disciplined and/or terminated because of his engagement in a protected activity, and it may lead to further discoverable information.” Slip op. at 9-10 (citation omitted). The court, however, limited the time period for comparator data. The court stated that “BNSF’s request to limit production to only those employees accused of the same conduct as Jones would likely increase the burden of production, as Jones’s conduct has not been precisely defined, while he was clearly accused of violating a specific (if expansive) rule.” Id. at 10 (emphasis as in original). The court stated, moreover, that BNSF should not be the sole determiner of the comparability of other employees’ conduct. The court noted that discovery is broader in scope than the standard of relevance governing admissibility at trial. The court noted that the parties had agreed that BNSF could protect the identities of individual employees by providing on their initials, and indicated that the court concurred with this agreement. The court thus ordered BNSF to produce nationwide comparator data from 2016 through present on employees accused of violating the same work rule as Plaintiff, with BNSF being allowed to list individuals by initials rather than name.

DISCOVERY; RELEVANCE OF PERSONNEL RECORDS OF MANAGERIAL EMPLOYEES; CONCERNS OVER EMBARRASSMENT OR PRIVACY ADDRESSED THROUGH PROTECTIVE ORDER DURING DISCOVERY STAGE

In Jones v. BNSF Ry. Co., No. 18-cv-146 (D.Mont. Dec. 11, 2019) (2019 U.S. Dist. LEXIS 213475; 2019 WL 6728429), the court addressed a variety of discovery disputes in an FRSA retaliation action. One of the disputes concerned Plaintiff’s request for personnel documents for management-level employees involved in the decisions to discipline and terminate Plaintiff. Such requested documents included Defendant’s Incentive Compensation Plan (“ICP”), Performance Management Process (“PMP”), and Merit Award Documents. Defendant had produced documents as to three employees, and submitted for in camera review documents regarding other employees. BNSF argued that additional production would be unwarranted because such personal information was (1) not relevant; (2) harassing; (3) violates employees’ right of privacy; (4) was not proportional to the needs of the case; and (5) was privileged and confidential information of persons not parties to the case. The court was not persuaded. First, it found that the documents could show an incentive to discipline or terminate Plaintiff by managerial employees potentially involved in Plaintiff’s termination — noting that the attorneys in this case had been involved in a prior FRSA case in which such documents had probative value. As to the personal nature of the personnel records requested, the court stated the following:

Additionally, while the documents may feel embarrassing or personal to the employees, they are personnel documents, and this is a case involving personnel decisions. This simply is not the sort of sensitive personal information giving rise to a valid objection to discovery. To the degree that BNSF’s objections are based on “harass[ment],” “privacy,” and “confidential[ity],” those concerns are sufficiently addressed by the parties’ protective order and the redaction of information already made in the documents produced in camera. See infra p. 26-28. While the Court recognizes that the employees involved would prefer to not have these materials reviewed by Jones’s attorneys——or to answer questions related to their job performance and compensation during their depositions-such preferences do not give rise to valid objections to discovery.

Slip op. at 14. The reference to the protective order involved BNSF’s designations of certain personal records produced with the marking “Confidential—Attorneys’ Eyes Only” —a category of protection defined in the parties’ stipulated protective order. The court in a separate part of its order allowed these designations to stand at this stage of the litigation. The court determined that the ICP, PMP, and Merits Award documents should be produced for four employees who could be seen as decisionmakers in Plaintiff’s discipline and termination, and for one employee whose role was overseeing safety operations in Plaintiff’s division.

DISCOVERY OF ELECTRONICALLY STORED INFORMATION (ESI); A SOPHISTICATED BUSINESS ENTITY SHOULD BE ABLE TO SEARCH FOR INFORMATION RELATED TO CLAIMS OR DEFENSES IN AN FRSA RETALIATION CASE; SUCH A REQUEST IS NOT TOO VAGUE OR BURDENSOME

DISCOVERY OF ELECTRONICALLY STORED INFORMATION (ESI); WHERE DEFENDANT DID NOT SUGGEST ALTERNATIVES, COURT ORDERED DEFENDANT TO USE SPECIFIC SEARCH TERMS AND DATABASES SUGGESTED BY PLAINTIFF

In Jones v. BNSF Ry. Co., No. 18-cv-146 (D.Mont. Dec. 11, 2019) (2019 U.S. Dist. LEXIS 213475; 2019 WL 6728429), the court addressed a variety of discovery disputes in an FRSA retaliation action. One of the disputes concerned requests for electronically stored information (ESI). Defendant’s objected that the request “for information related to the claims or defenses of any party in this matter” was unreasonably vague. The court was not persuaded, stating that “[t]his is a relatively narrow lawsuit relating to an alleged discriminatory termination, and the defense is that the termination was not discriminatory” and that “a sophisticated business entity such as BNSF should have no trouble conducting the requested search.” Slip op. 23-24 (citation omitted). The court also rejected Defendant’s objection to production of ESI on grounds of burden, stating that “sophisticated corporate entities have the ability to effectively find digital information when they need to, which is exactly why they store that information electronically in the first instance. BNSF’s claim that it is difficult to search the databases in which BNSF chooses to store information carries little weight.” Id. at 24. Defendant also objected that Plaintiff’s discovery request, which suggested specific databases and search terms, was a mandate on how to conduct a search for nonspecific information. The court noted that Defendant’s argument was that Plaintiff’s request was at once, both too specific and too unclear. The court, finding no suggestion from Defendant on how it could provide responsive information, ordered use of the specific search terms and databases identified by Plaintiff.

PUBLIC ACCESS TO MATERIALS PRODUCED DURING DISCOVERY; WHETHER CERTAIN PERSONNEL RECORDS OF MANAGEMENT EMPLOYEES COULD BE DESIGNATED UNDER TERMS OF A PROTECTIVE ORDER AS FOR “ATTORNEY-ONLY” USE DURING DISCOVERY, AND CERTAIN TRAINING MATERIALS COULD BE DESIGNATED AS CONFIDENTIAL; COURT PERMITTED THE DESIGNATIONS TO STAND DURING PRE-TRIAL STAGE AND RESERVED QUESTION OF WHETHER TO SEAL TO TRIAL

In Jones v. BNSF Ry. Co., No. 18-cv-146 (D.Mont. Dec. 11, 2019) (2019 U.S. Dist. LEXIS 213475; 2019 WL 6728429), the court addressed a variety of discovery disputes in an FRSA retaliation action. One of the disputes concerned a stipulated protective order that permitted Defendant to designate certain documents as “Confidential/Attorneys’ Eyes Only.” Defendant had made such a designation for certain Incentive Compensation Plan (“ICP”), Performance Management Process (“PMP”) personnel records of management employees. Defendant had also designated certain training documents using a somewhat less restrictive “Confidential” marking. Plaintiff challenged these designations, contending that “(1) the public interest in access to court proceedings outweighs the individual privacy interests involved; (2) the documents are stale and accordingly do not deserve protection; and (3) the documents are likely to arise in future litigation, and future time and expense could be spared by placing them into the public domain.”

The Court summarily rejected Plaintiff’s third argument, which was not supported by any legal authority. As to the designations, the court determined that they should stand at the discovery stage of litigation. The court, referencing a different part of its order finding that the ICP and PMP documents must be produced during discovery, stated:

If the documents become part of the record at trial, the Court will determine at that time whether they should be sealed. See Pintos v. Pac. Creditors Ass ’n, 605 F.3d 665, 678 (9th Cir. 2010); see also Frost v. BNSF Ry. Co., CV 15-124-M-DWM (D. Mont. Oct. 10, 2019).

The Court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(l). Although the Court disagreed with BNSF that individual employees’ ICP and PMP materials involved privacy interests so compelling as to avoid disclosure entirely, see supra p. 12-15, it nonetheless recognizes that the employees have a reasonable and significant interest in avoiding public dissemination of their salaries and performance reviews. See, e.g., Wisdom v. US. Tr. Program, 232 F. Supp. 3d 97, 126 (D.D.C. 2017); Oliver Wyman, Inc. v. Eielson, 282 F. Supp. 3d 684, 706 (S.D.N.Y. 2017). And BNSF, which takes precautions to avoid sharing its proprietary training materials outside of the company, has sufficiently demonstrated that it reasonably views these materials as confidential. (Doc. 46-8.)

Slip op. at 27.

VI. Party Not Named in Administrative Complaint

FRCP 12(b)(1) MOTION; FACT THAT CERTAIN DEFENDANTS WERE NOT NAMED IN ADMINISTRATIVE COMPLAINT DID NOT SUPPORT DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION

In Ringer v. Neb., Kan., & Colo. Ry., No. 20-cv-3056 (D. Neb. Aug. 19, 2020) (2020 U.S. Dist. LEXIS 149787), Defendant railroad’s holding company (Omnintrax Holdings, Combined Inc.) and a national rail transportation service provider (Omnitrax, Inc.) filed a FRCP 12(b)(1) motion to dismiss for lack of subject matter jurisdiction on the ground that the administrative complaint had not named these entities as defendants, and therefore Plaintiff failed to exhaust administrative remedies against them. The court noted that “Administrative rules, even if important and mandatory, that do not reference a court's adjudicative capacity are more aptly thought of as ‘claims-processing rules.’” Slip op. at 13. Here, the court found that assuming that the Omintrax Defendants were not named in an administrative complaint, that circumstance would not implicate the court’s subject matter jurisdiction. The court stated:

The timely filing of the initial complaint with the Secretary of Labor is a claims-processing requirement subject to several defenses such as waiver, estoppel, or equitable tolling, or, as the plaintiff argues here, that the Omnitrax defendants and NK&C share a substantial identity. Filing 22 at 1. The Omnitrax defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction is without support in the law.

Slip op. at 14-15.

VI. Exhaustion of Administrative Remedies

PROPER PLEADING; SUMMARY JUDGMENT GRANTED WHERE THE FEDERAL COMPLAINT ALLEGED A FRSA 20109(a)(4) VIOLATION, BUT THE ADMINISTRATIVE COMPLAINT BEFORE OSHA HAD BEEN BASED ON A 20109(c)(2) CLAIM; THUS PLAINTIFF HAD NOT EXHAUSTED HER ADMINISTRATIVE REMEDIES AS TO A SUBSECTION (a)(4) CLAIM

In McClement v. Port Authority Trans-Hudson Corp., No. 11-cv-06839 (D. N.J. Jan. 12, 2022) (unpublished) (2022 U.S. Dist. LEXIS 5926), Plaintiff had amended a multi-count federal court complaint to allege retaliation under FRSA, 49 U.S.C. § 20109(a)(4)—that is, retaliation for, inter alia, notifying a carrier of a work-related injury or illness. Plaintiff’s earlier complaint with OSHA, however, had been based on having been taken out of service for insubordination for going to a doctor’s appointment. OSHA’s letter informing Defendant of the allegations established that this is the allegation that OSHA understood the administrative complaint to be about. The court found that this was a 49 U.S.C. § 20109(c) complaint—that is, protection to an employee for, inter alia, “following orders or a treatment plan of a treating physician.” 49 U.S.C. § 20109(c)(2). The court found that Plaintiff thus had not exhausted her administrative remedies as to a subsection (a)(4) claim, and thus granted summary judgment in favor of Defendant on the FRSA count.

EXHAUSATION OF ADMINISTRATIVE REMEDIES; TITLE VII STANDARD APPLIES TO ANALYZE WHETHER ALLEGATIONS IN FEDERAL COMPLAINT ARE WITHIN THE SCOPE OF THE ADMINISTRATIVE COMPLAINT FOR PURPOSES OF EXHAUSATION FOR A FRSA “KICK-OUT” COMPLAINT; ALTHOUGH PLAINTIFF HAD NOT ALLEGED IN THE ADMINISTRATIVE COMPLAINT A DENIAL OF MEDICAL ATTENTION OR THREATS OF TERMINATION FOR REPORTING, THE COURT FOUND THAT THEY WERE RELATED ENOUGH TO THE SPECIFIC ALLEGATIONS MADE IN THE ADMINISTRATIVE COMPLAINT TO MEET THE VASQUEZ “REASONABLY-EXPECTED-INVESTIGATION” STANDARD

EXHAUSATION OF ADMINISTRATIVE REMEDIES; TITLE VII STANDARD APPLIES TO ANALYZE WHETHER ALLEGATIONS IN FEDERAL COMPLAINT ARE WITHIN THE SCOPE OF THE ADMINISTRATIVE COMPLAINT FOR PURPOSES OF EXHAUSATION FOR A FRSA “KICK-OUT” COMPLAINT; WHERE THE RECORD DID NOT CONTAIN THE OSHA INVESTIGATORY FILE, THE “ACTUAL INVESTIGATION” PRONG OF THE VASQUEZ ANALYSIS COULD NOT BE EVALUATED

In Pfeifle v. Portland Terminal R.R. Co., No. 19-cv-01436 (D. Or. June 25, 2021) (2021 U.S. Dist. LEXIS 118938), Defendant moved for judgment on the pleadings on Plaintiff’s FRSA Section 20109 claim on the ground that Plaintiff failed to exhaust his administrative remedies on certain counts. The court denied the motion.

Plaintiff had filed a complaint with OSHA alleging that he was disciplined for reporting an unsafe switch, and for reporting an injury the next day when throwing the switch. After 210 days without a final decision from the Secretary of Labor, Plaintiff brought the instant action in federal court, one claim of which alleged three counts of violations of the FRSA: alleged discipline for reporting a hazardous safety condition; alleged injury during course of employment and denial of prompt medical attention; and alleged discipline for reporting the injury. Defendant moved to dismiss as to the newly raised parts of the federal court complaint, specifically the “denial-of-medical-attention” count, and parts of the first and third counts relating to alleged retaliatory threats of termination. Defendant argued that “each prohibited action must be alleged in the OSHA complaint for that action to be properly exhausted.” Slip op. at 4. Plaintiff, in contrast, argued that “the exhaustion standard applicable in the Title VII context for Equal Employment Opportunity Commission (EEOC) complaints applies in the FRSA context. In the Title VII context, district courts may hear all allegations of discrimination ‘that either fell within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’ B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1100 (9th Cir. 2002), as amended (Feb. 20, 2002) (quotation marks, citations, and emphasis omitted).” Id. at 5.

The court reviewed precedent from other courts that analyzed FRSA exhaustion, found that it suggested that that Title VII standard applies, found that this precedent was persuasive, and therefore used that standard in the instant case. The court discussed the nature of administrative complaint investigations and how the absence of formal pleading requirements indicate that OSHA administrative proceedings are not expected to meet the pleading standards applicable in federal court. In applying the Title VII standard, the court indicated that it may consider all claims that fall within the scope of the agency’s actual investigation or an investigation that could reasonably be expected to grow out of the charge. In the instant case, Defendant argued that “the denial-of-medical-treatment and threat-of-termination claims are not similar to or related to Plaintiff’s claim.” Id. at 8 (citation omitted).

Agency’s “reasonably expected” investigation

The court first reviewed whether the new claims were reasonably related to the complaint made to OSHA. The court stated:

In determining whether a claim is “reasonably related” to the agency complaint, the court “may consider ‘such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred.’” Vasquez, 349 F.3d at 644 (citation omitted).

Id. In the instant case, the court found that the OSHA complaint alleged “only that Defendant responded in a certain way to Plaintiff’s reporting of the switch and injury, and the new claims allege other responses by Defendant to that same reporting conduct.” Id. Applying the Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003), as amended (Jan. 2, 2004), “reasonably expected” investigation analysis, however, the court found that

… the direct causal relationship between these sets of facts, combined with the narrow temporal relationship at issue in Plaintiff’s OSHA complaint, demonstrate that both current claims are reasonably related to the OSHA complaint. A reasonable investigation of Plaintiff’s OSHA allegations would “encompass” Defendant’s reaction to the injury report, including any discussions of injuries and the need for medical attention, as well as interactions (including threats) relating to the reported unsafe switch and injury within the short alleged time frame.2 The additional claims are “so closely related” to the allegations in Plaintiff’s OSHA complaint “that agency action would be redundant” in investigating them separately. B.K.B., 276 F.3d at 1102 (quotation marks and citations omitted). The “operative facts” of Plaintiff’s current denial-of-medical-treatment and threat-of-termination claims are certainly “related to the facts in the EEOC charge.” Vasquez, 349 F.3d at 645.

Id. at 8-9 (footnote omitted). The court noted that “[c]ases finding failure to exhaust where a plaintiff brought a new theory tend to emphasize the lack of temporal proximity between the facts supporting each theory.” Id. at 9, n.2 (citations omitted).

The actual investigation

The court next noted that the OSHA investigative file had not been produced in discovery, and that in the FRSA context, courts have relied on such evidence in deciding exhaustion issues. Id. at 10-11 (citing several decisions). The court, however, indicated that it was nonetheless denying Defendant’s motion for judgment on the pleadings for the reasons discussed under the “reasonably expected” investigation analysis.

EXHAUSTION OF ADMINISTRATIVE REMEDIES; DISTRICT COURT GRANTS SUMMARY JUDGMENT DISMISSING FRSA “SUBCLAIMS” NOT CONTAINED IN THE ADMINISTRATIVE COMPLAINT BEFORE DOL, AND WHICH WERE FIRST RAISED BEFORE THE COURT

In Hand v. CSX Transp., No. 19-cv-941 (S.D. Ohio Mar. 15, 2021) (2021 U.S. Dist. LEXIS 47416), the court granted Defendant’s motion for partial summary judgment on Plaintiff’s FRSA whistleblower retaliation claim. One of Defendant’s arguments was that Plaintiff failed to exhaust his administrative remedies. Plaintiff alleged in the Administrative Complaint filed with DOL that Defendant retaliated against him “for reporting the injury;” he did not allege in that complaint that he had reported safety hazards or safety regulation violations. Defendant argued that the court “should dismiss the FRSA claim to the extent that Hand alleges for the first time in Count 1 that CSXT retaliated against him for reporting safety hazards and railroad safety regulation violations” Slip op. at 12. The court agreed and found that the subclaims “fail as a matter of law. See Foster v. BNSF Railroad Co., 866 F.3d 962, 967 (8th Cir. 2017) (dismissing subclaims not related to the claims raised in the administrative complaint); see also Gibbs v. Norfolk S. Ry. Co., No. 3:14-CV-587-DJH-DW, 2018 WL 1542141, at *5 (W.D. Ky. Mar. 29, 2018) (considering only the subclaims based on adverse actions the plaintiff raised in the administrative complaint).” Id.

ADMINISTRATIVE EXHAUSTION; NEW THEORY OF RETALIATION NOT ABSOLUTELY BARRED FROM BEING RAISED IN FEDERAL COURT AS LONG AS IT REASONABLY RELATED TO ADMINISTRATIVE COMPLAINT; WHERE, HOWEVER, THE NEW CLAIM WAS COMPLETELY UNRELATED TO THE ISSUES RAISED IN THE ADMINISTRATIVE COMPLAINT, THE COURT GRANTED SUMMARY JUDGMENT DISMISSING THE COUNT FOR FAILURE TO EXHAUST

In Vasquez v. BNSF Ry., No. 18-cv-164 (D. Mon. May 29, 2020) (2020 U.S. Dist. LEXIS 94593; 2020 WL 2813700), the court granted summary judgment dismissing an allegation that Plaintiff was terminated for reporting crew fatigue where he had not made such an allegation in the complaint filed in district court or in the OSHA proceeding. The basis for this allegation did not arise until nearly a year after Plaintiff had filed the lawsuit. The court declined to rule as a matter of law that a plaintiff can never raise a new theory of retaliation in a FRSA action, but nonetheless concluded that the circumstances presented in the instant case barred its consideration. The court noted the importance of affording OSHA the opportunity to resolve allegations through the administrative process, but found that exhaustion is not required where the retaliation claim is reasonably related to the administrative complaint. This was not such a case, the fatigue-related complaints being complexly independent of his other claims.

Subject Matter Jurisdiction

SUBJECT-MATTER JURISDICTION; COURT ALWAYS HAS JURISDICTION TO DETERMINE ITS OWN JURISDICTION, AND HAS THE INDEPENDENT OBLIGATION TO DETERMINE ITS JURISDICTION, EVEN IF NOT CONTESTED BY A PARTY

This case asks whether FRSA’s 180-day limitations period is “jurisdictional.” That is, if an employee fails to file a timely complaint with OSHA, does that divest a district court of subject matter jurisdiction? Or is the limitations period simply a claim-processing rule, the breach of which may defeat an employee’s claim, but not a district court’s jurisdiction to hear the case?

Slip op. at 2-3. The court’s holding was:

After considering the text, context, and history of the provision, and mindful of the Supreme Court’s decisions in this area, we hold that FRSA’s 180-day limitations period in 49 U.S.C. § 20109(d)(2)(A)(ii) is a nonjurisdictional claim-processing rule.

Id. at 3.

Stay

DE NOVO ACTION IN DISTRICT COURT STAYED PENDING COURT OF APPEALS DECISION ON ARB DECISION ON TIMELINESS OF PETITION FOR ARB REVIEW; ALTHOUGH PLAINTIFF WAS LIKELY TO WIN THIS POINT, ALL OTHER FACTORS SUPPORTED A STAY

In Henin v. Soo Line R.R., No. 19-336 (D. Minn. Aug. 9, 2019) (2019 U.S. Dist. LEXIS 134109) (case below ARB No. 2019-0028, ALJ No. 2017-FRS-00011), the ARB had initially dismissed the Complainant’s petition for review of the ALJ’s decision on a FRSA complaint as untimely, but later changed course on reconsideration and found that the petition was timely. Respondent appealed this ARB decision to the Eighth Circuit Court of Appeals. In the interim, Plaintiff filed a de novo action FRSA complaint in district court. Defendant filed a motion to stay, arguing that if the Eighth Circuit Court concludes that Plaintiff did not timely appeal, then the ALJ’s order became the final order of the Secretary of Labor and the district court does not have jurisdiction. The court granted the motion finding, inter alia, that it would simplify disputed issues about jurisdiction and conserve judicial resources, avoid the court making an inconsistent ruling with the Eighth Circuit, would not prejudice Plaintiff. The court noted that the factor of likelihood of success favored Plaintiff — but found that the other factors outweighed this factor.

Collateral Estoppel / Res Judicata

FRCP 12(b)(6) MOTION; EMPLOYEE RULE VIOLATION HEARINGS DID NOT HAVE RES JUDICATA OR COLLATERAL ESTOPPEL EFFECT WHERE RECORD DID NOT SHOW THAT ELEMENTS OF FRSA RETALIATION SUIT WERE CLAIMS OR ISSUES FINALLY DECIDED IN THOSE HEARINGS

In Ringer v. Neb., Kan., & Colo. Ry., No. 20-cv-3056 (D. Neb. Aug. 19, 2020) (2020 U.S. Dist. LEXIS 149787), Defendant railroad filed a FRCP 12(b)(6) motion to dismiss for failure to state a claim for relief based on res judicata and collateral estoppel. The railroad argued that Plaintiff was seeking to challenge discipline for failing to file a timely safety and hazard report, leaving a switch unlocked, and engaging in unauthorized employment. The court denied the motion. First, the court noted that Plaintiff alleged facts showing lack of a full and fair opportunity to litigate the rules violations accusations. Second, the court found a lack of identity of claims or issues between the workplace rules violation hearings and the FRSA retaliation claims before the court. Specifically, there was no indication that the elements of FRSA retaliation claim were claims or issues finally decided in the prior employee rule violation hearings, and therefore res judicata and collateral estoppel are not implicated.

Evidentiary Determinations

DISTRICT COURT’S EXCLUSION OF OSHA REPORT BASED ON HEARSAY OBJECTION; ERROR NOT PRESERVED WHERE THERE WAS NO OFFER OF PROOF AT TRIAL; DISTRICT COURT IS NOT MANDATED TO ADMIT GOVERNMENT INVESTIGATIVE REPORTS, BUT HAS OBLIGATION TO BALANCE PROBATIVE VALUE WITH POSSIBLE PREJUDICAL EFFECT

During a bench trial In Epple v. BNSF Ry. Co., No. 18-10509 (5th Cir. Sept. 27, 2019) (per curiam) (unpublished) (2019 U.S. App. LEXIS 29232), the district court sustained Defendant/Appellee’s objection to receipt into evidence a letter from OSHA to Defendant summarizing the agency’s investigative findings. Defendant had objected on the grounds that the letter was hearsay and that it did not fall under the government document exception. On appeal, Plaintiff/Appellant argued that the district court’s refusal to admit the letter was error. The Fifth Circuit noted that the circuit would not consider a claim of error on exclusion without an offer of proof, as required by FRE 103(a). The court also said: “Although a formal offer is not required to preserve error, the party must at least inform the trial court ‘what counsel intends to show by the evidence and why it should be admitted.’ United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir. 1994).” Slip op. at 8. Here, Plaintiff did not proffer the substance of the OSHA letter at trial, and the substance was not apparent from the context. The court noted Plaintiff’s statement that the trial court had referenced the letter (i.e., the OSHA findings) “in its summary judgment motion.” The court stated that this brief reference to the letter was not sufficient to inform the trial court of what counsel intended to show by that evidence. The court was not persuaded by Plaintiff’s citation to Smith v. Universal Services, Inc., 454 F.2d 154, 157 (5th Cir. 1972), which had carved a hearsay exception recognizing that certain investigative reports have such high probative value that may they may, if circumstances allow, outweigh any possible prejudice to the defendant. The court noted that it had previously cautioned that Smith does not negate a district court’s responsibility under FRE 403 to balance the exhibit’s probative value with its possible prejudicial effect, and that a district court retains discretion over such a report’s admissibility.

Summary Judgment

SUFFICIENCY OF PLEADING; CLAIM PURPORTEDLY RAISED FOR FIRST TIME IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT; THE COURT FOUND THE COMPLAINT TO BE ADEQUATE NOTICE OF THE CLAIM WHERE, ALTHOUGH FRSA, 49 U.S.C. § 20109(a)(4) HAD NOT BEEN EXPRESSLY CITED IN THE COMPLAINT, THE COMPLAINT RECITED RELEVANT PROTECTED ACTIVITY AND ADVERSE EMPLOYMENT ACTION, AND THE RESPONSE TO THE SUMMARY JUDGMENT MOTION DID NOT EXCEED THE LEGAL CLAIMS AND FACTS ASSERTED IN THE ADMINISTRATIVE COMPLAINT

One of Defendant's arguments was that the (a)(4) claim should be dismissed because it was raised for the first time in his summary judgment response. The court, however, analyzed Plaintiff’s complaint and found that it was adequate to plead such a claim. Although (a)(4) was not explicitly cited, the complaint laid out the alleged protected activity and specified that Plaintiff suffered adverse employment action because of this activity. The court also noted that Plaintiff’s response to the summary judgment motion had raised no new factual theory, and had not argued outside the legal claims or facts asserted in the administrative stage of the case.

STANDARD OF REVIEW OF AGENCY’S GRANT OF SUMMARY DECISION; ALTHOUGH FOR PURPOSES OF THE CASE THE ARB HAD CONCEDED DE NOVO REVIEW, THE SIXTH CIRCUIT NOTED THAT – ALTHOUGH THE COURT OF APPEALS CONDUCTS DE NOVO REVIEW ON PURE QUESTIONS OF LAW – WHERE AN AGENCY PERMISSIBLY MADE FINDINGS OF FACT WITHOUT A HEARING IN RULING ON A SUMMARY DECISION MOTION, THE APA’S MORE DEFERENTIAL ARBITRARY-AND-CAPRICIOUS OR SUBSTANTIAL EVIDENCE STANDARD APPEARED TO BE APPLICABLE TO THE FACT-FINDING

In Cole v. United States Dep't of Labor, No. 20-4075 (6th Cir. Sept. 24, 2021) (unpublished) (2021 U.S. App. LEXIS 29157), the Sixth Circuit denied Cole’s petition for review of the ARB’s affirmance of the ALJ’s grant of summary decision denying Cole’s FRSA retaliation complaint. The Sixth Circuit addressed the standard of review of an agency’s grant of summary decision. It noted that in briefing the ARB conceded that a de novo standard applied, analogizing agency summary decision to a district court’s summary judgment. The court accepted that concession but noted that the Administrative Procedure Act applied, and that dispositive facts which are permitted to be made without a hearing are not necessarily subject to de novo review, as opposed to pure questions of law which are reviewed de novo. The court stated:

… [W]here the agency’s dispensing of a hearing is based on the compelling nature of the paper record regarding certain facts, and determining such facts without a hearing is not forbidden by the statute or regulations, the statute appears to require that we review such factfinding under a deferential arbitrary-and-capricious standard, or the similarly deferential substantial-evidence standard.

Slip op. at 3. In the instant case, however, the court’s application of de novo review a fortiori supported denial of the petition under a more deferential scope of review.

SUMMARY JUDGMENT – AMENDMENT OF COMPLAINT; EVEN THOUGH BOTH PARTIES ACTED IN THE SUMMARY JUDGMENT STAGE AS THOUGH A FRSA SECTION 20109(c)(1) INTERFERENCE WITH MEDICAL TREATMENT CLAIM WAS AT ISSUE, THE COURT FOUND THAT SUCH A CLAIM HAD NOT ACTUALLY BEEN PLEADED IN THE ORIGINAL COMPLAINT; THE COURT DETERMINED THAT THE COMPLAINT WOULD NOT BE PERMITTED TO BE AMENDED TO INCLUDE SUCH A CLAIM IN RESPONSE TO DEFENDANT’S SUMMARY JUDGMENT MOTION

In Stapleton v. CSX Transp., No. 19-cv-413 (M.D. Fla. March 30, 2021) (2021 U.S. Dist. LEXIS 61377), Plaintiff filed a complaint, one count of which alleged that Defendant retaliated against him for reporting a workplace injury in violation of the FRSA, 49 U.S.C. § 20109(a). Defendant filed a motion for summary judgment, in part arguing that Plaintiff could not show that Defendant interfered with Plaintiff’s medical treatment in violation of 20109(c). In response, Plaintiff argued that Defendant interfered with his medical treatment in violation of 49 U.S.C. § 20109(c)(1) when it provided his health insurer with information that led to the temporary cancellation of his health insurance coverage.

The first item the court addressed in regard to summary judgment was the claims properly before the court. The court noted that Defendant’s motion included a § 20109(c)(1) claim in the motion apparently out of an abundance of caution because of a conclusory reference in the complaint to interference with medical treatment. Upon careful review of the complaint, the court determined that Plaintiff had not presented a § 20109(c)(1) claim. Plaintiff had not listed such a claim in regard to this count of the complaint (the other count being an allegation that Defendant owed him damages under FELA), and had not sought damages having to do with interference with medical treatment. Plaintiff had not mentioned § 20109(c)(1) anywhere in his complaint, whereas he had specifically cited to § 20109(a). Facts supporting a medical treatment claim were entirely absent from the complaint. The court then noted that Eleventh Circuit precedent precludes a plaintiff from amending its complaint through argument at the summary judgment phase of the proceedings. Even though both parties acted in the summary judgment stage as if a § 20109(c)(1) claim was at issue, the court found that the complaint actually asserted no such claim. The court thus concluded: “As such, Stapleton did not plead a claim under 49 U.S.C. § 20109(c)(1) for interference with medical treatment in the Complaint and the Court will not permit Stapleton to amend his complaint to include such a claim at summary judgment. Thus, to the extent CSXT seeks summary judgment on this claim, the Motion is due to be granted.” Slip op. at 26.
.

PLEADING; FAILURE TO ASSERT PROTECTED ACTIVITY UNDER THE FRSA IN ADMINISTRATIVE COMPLAINT DOES NOT WARRANT SUMMARY DISMISSAL IN FEDERAL COURT ACTION, ESPECIALLY WHERE OSHA INVESTIGATED INJURY IN CONNECTION WITHER TERMINATION

SUMMARY DISMISSAL; EVIDENCE THAT DEFENDANT FOLLOWING ITS INTERNAL PROCEDURES AND SAFEGUARDS AGAINST RETALIATION INSUFFICIENT IN ITSELF FOR SUMMARY DISMISSAL BECAUSE IT IS PEOPLE, NOT THE PROCESS, WHO RETALIATE

In Rossich v. BNSF Ry. Co., No. 18-cv-5829 (W.D. Wash. Jan. 9, 2020) (2020 U.S. Dist. LEXIS 4502), BNSF moved for summary dismissal of Plaintiff’s claim that BNSF violated the FRSA when it dismissed him in retaliation for reporting a work-related injury. The court denied the motion. BNSF contended, inter alia, that the claim failed because Plaintiff had not asserted protected activity in the OSHA complaint. The court, however, noted Plaintiff’s argument that “the administrative process is not formal and as a result strict formalistic treatment of the allegations in his complaint are not appropriate,” (slip op. at 5) and that BNSF acknowledged that Plaintiff’s injury had been mentioned in the OSHA complaint and that OSHA had investigated the injury in connection with the termination. BNSF also contended that it established its affirmative defense that it would have terminated Plaintiff with or without the intervening injury. Defendant essentially contended that Plaintiff had been discharged after management officials concluded that Plaintiff had violated BNSF rules regarding a crew’s failure to secure unattended equipment properly, and in accordance with BNSF’s progressive discipline policy. The court was not convinced by BNSF’s notation that OSHA found for BNSF and that the Federal Railroad Administration found that Plaintiff violated the securement regulations. In sum, the court wrote:

As in a recent Montana case, “BNSF puts much stock in its internal procedures and safeguards designed to prevent discrimination while failing to recognize that these checks are only as effective as the people enforcing them. . . . [T]he people, not the process, treated him unfairly by retaliating against him after he filed his injury report.” Wooten v. BNSF Ry. Co., 387 F.Supp.3d 1078, 1094 (D. Montana 2019).”

Id. at 6-7.

SUMMARY JUDGMENT; STATEMENTS IN COMPLAINT ARE ADMISSIONS THAT MAY SUPPORT SUMMARY JUDGMENT, EVEN IF THE STATEMENTS CONFLICT WITH POST-PLEADING EVIDENCE

In Neylon v. BNSF Ry. Co., No. 17-cv-3153 (D. Ne. Sept. 4, 2019) (2019 U.S. Dist. LEXIS 150048) (case below ALJ No. 2017-FRS-00066), Plaintiff brought a FRSA lawsuit under 49 U.S.C. § 20109(a)(4) alleging that Defendant terminated his employment for reporting an ankle injury that he speculated occurred while climbing onto a train in the course of his employment as a BNSF conductor 17 months earlier. Defendant’s moved for summary judgment. One ground for summary judgment, rejected by the court, was the argument that Plaintiff did not establish protected activity because he repeatedly stated in deposition testimony that he reported a medical “condition” —not an “injury” or “illness,” as required by the statute. The court noted that Plaintiff had so testified in deposition because reporting an injury 17 months later would have violated Defendant’s late-reporting rules. The court also noted that Plaintiff maintained he was reporting a “condition” instead of an “injury” in his late-reporting investigatory hearing. Nonetheless, the court found that Plaintiff’s complaint filed with the court specifically stated that he “engaged in protected activity by reporting his left-ankle injury to BNSF.” Slip op. at 20, quoting complaint (emphasis added). The court noted that in the Eighth Circuit, even if post-pleading evidence conflicts with the pleadings, “admissions in the pleadings are binding on the parties and may support summary judgment against the party making such admissions.” Id., quoting Missouri Hous. Dev. Comm’n v. Brice, 919 F.2d 1306, 1315 (8th Cir. 1990). Plaintiff was bound by his admission in his complaint that he reported an “injury,” and he thus engaged in protected activity within the meaning of § 20109(a)(4). The court therefore denied summary judgment on the question of protected activity.

PLEADING OF CLAIMS; LIBERAL PLEADING STANDARDS DO NOT APPLY AT SUMMARY JUDGMENT STAGE; WHERE COMPLAINT IS AMBIGUOUS, SIXTH CIRCUIT APPLIES A “COURSE OF THE PROCEEDINGS” TEST TO DETERMINE WHETHER DEFENDANT WAS ON NOTICE; DISTRICT COURT DOES NOT PERMIT PLAINTIFF TO PROCEED ON INTERFERENCE CLAIM UNDER FRSA § 20109(c) WHERE IT WAS RAISED FOR THE FIRST TIME IN RESPONDING TO A MOTION FOR SUMMARY JUDGMENT, WAS NOT PLEADED IN HER AMENDED COMPLAINT AND SHE HAD NOT SOUGHT LEAVE TO AMEND HER AMENDED COMPLAINT

In Bostek v. Norfolk S. Ry. Co., No. 16-cv-2416 (N.D. Ohio July 2, 2019) (2019 U.S. Dist. LEXIS 110623; 2019 WL 2774147), Plaintiff filed a FRSA complaint alleging that she was fired in retaliation for reporting a work related injury. Defendant moved for summary judgment. In opposing summary judgment, Plaintiff raised a claim not only for retaliation, but also for interference with prompt medical attention under 49 U.S.C. § 20109(c).

The court first noted that the liberal pleading standard does not apply at the summary judgment stage, and that to prevent an unfair surprise, a plaintiff may not expand claims to assert new theories for the first time in response to a summary judgment motion. Where a complaint is ambiguous, the Sixth Circuit applies a “course of the proceedings” standard to determine whether the defendant was on notice of the claim. The court reviewed Plaintiff’s amended complaint and found that it only stated a single retaliation claim. The court noted that the evidence suggested that Plaintiff may have alleged a colorable FRSA interference claim, she had not done so, and had not sought leave to amend her amended complaint to add such a claim. The court stated that “Therefore, the FRSA interference claim cannot be presented now.” Slip op. at 19.

Post-Trial Motions

POST-TRIAL MOTION FOR JUDGMENT AS A MATTER OF LAW; IN REVIEWING A RULE 50(b) MOTION, THE COURT MUST DRAW ALL REASONABLE INFERENCES IN FAVOR OF THE NONMOVING PARTY

In Fresquez v. BNSF Ry., No. 17-cv-0844 (D. Colo. Mar. 8, 2021), the court denied BNSF's post-trial Rule 50(b) motion for judgment as a matter of law on protected activity, the decision makers' purported lack of knowledge of the protected activity, and whether there was clear and convincing evidence that BNSF would have fired Fresquez for insubordination in the absence of the protected activity. In each instance, the court, after reviewing the evidence and drawing all inferences in Fresquez's favor, found that the evidence was insufficient to overturn the jury's conclusions.

For cases on remittitur, see Compensatory Damages.

For cases on motion to reduce punitive damages award, see Punitive Damages.

Bifurcation of Claims

DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DENYING BNSF’S MOTION TO BIFURCATE FRSA RETALIATION AND FELA CLAIMS WHERE CONVENIENCE AND JUDICIAL ECONOMY WEIGHED IN FAVOR OF TRYING CLAIMS TOGETHER

In Wooten v. BNSF Ry., No. 19-35431 (9th Cir. June 22, 2020) (unpublished), the Ninth Circuit determined that the district court did not abuse its discretion by denying the BNSF’s motion to bifurcate Plaintiff’s FRSA retaliation and FELA claims. The court stated that FRCP 42(b) merely allows, but does not require, a trial court to bifurcate cases. Here, “the district court determined that convenience and judicial economy weighed in favor of trying the claims together—the claims involved overlapping evidence and any potential for prejudice was reduced or eliminated by limiting instructions.”

Waiver of Issues

APPEAL SUMMARILY DISMISSED WHERE PRO SE PLAINTIFF FAILED TO PRESENT ANY ARGUMENTS IDENTIFYING ANY CLAIM OF ERROR BY THE DISTRICT COURT

In Williams v. MTA Metro N. R.R., No. 20-3418 (2d Cir. Apr. 8, 2022) (unpublished) (2022 U.S. App. LEXIS 9451) (Summary Order), the Second Circuit summarily affirmed the judgment of the U.S. district court dismissing Plaintiff’s pro se suit that cited claims under the FRSA, 49 U.S.C. § 20109, Title VII of the Civil Rights Act, a New York state law, and a due process claim under the 14th Amendment. On appeal, Plaintiff presented no arguments in his opening or reply briefs identifying any claim of error on the district court's part. Rather, he only provided a collection of documents mostly related to the district court proceeding. The court found that the collection of documents failed to comply even minimally with Rule 28(a), and noted that, even though pro se litigants are offered a high degree of solicitude, it was not the court’s role to identify arguments on their behalf. The court determined that the plaintiff had thus forfeited any argument that the district court erred in dismissing his claims.

COURT OF APPEALS DECLINED TO ADDRESS PRESENTMENT CLAUSE ARGUMENT THAT HAD NOT BEEN RAISED BEFORE THE DISTRICT COURT; ARGUMENT WAS THAT SIXTH CIRCUIT’S CONRAIL TEST’S INCLUSION OF DECISIONMAKER KNOWLEDGE AS PART OF PLAINTIFF’S BURDEN WAS IMPROPER LEGISLATING

In Mangold v. Norfolk S. Ry. Co., No. 21-3059 (6th Cir. Dec. 14, 2021) (not published) (2021 U.S. App. LEXIS 37193; 2021 WL 5904091), the district court granted summary judgment in part because there was no evidence presented to show that the relevant decisionmakers knew that Mangold engaged in FRSA protected activity prior to disciplining him. In the Sixth Circuit, FRSA retaliation cases are analyzed under the test set forth in Consolidated Rail Corp. (“Conrail”) v. United States Dep’t of Labor, 567 F. App’x 334 (6th Cir. 2014), which requires the plaintiff to make four showings, one of which is that the employer knew that the plaintiff engaged in protected activity. Here, Mangold argued on appeal that the district court violated the Constitution’s Presentment Clause. The argument was that the district court improperly legislated when it required Mangold to point to evidence that would create a genuine issue of material fact in opposing summary judgment as to whether the decisionmakers had knowledge of the protected activity. The Sixth Circuit, however, declined to consider this argument because it had not been raised before the district court.

COURT OF APPEALS FOUND THAT BREACH OF CONTRACT ARGUMENT WAS FORFEITED WHEN APPELLANT-PLAINTIFF FAILED TO ADDRESS IN APPELLATE BRIEF DISTRICT COURT’S FINDING THAT THE CLAIM HAD BEEN FORFEITED FOR FAILURE TO BRIEF IT BEFORE THE DISTRICT COURT

In Mangold v. Norfolk S. Ry. Co., No. 21-3059 (6th Cir. Dec. 14, 2021) (not published) (2021 U.S. App. LEXIS 37193; 2021 WL 5904091), Mangold’s FRSA complaint had been partly based on an allegation that Norfolk had not complied with the terms of a settlement agreement in a FRSA case. The court, however, noted that Mangold had failed in his appellate briefing to address the district court’s conclusion that Mangold forfeited this breach of contract claim by failing to address it in the district court briefing or other argument. On appeal, Mangold had only repeated a conclusory allegation that the settlement agreement had been violated. The court found that Mangold’s failure to expressly appeal the district court’s forfeiture holding resulted in a forfeiture of a challenge to the district court’s dismissal of the breach of contract claim.

VII. PRIMA FACIE CASE AND BURDEN SHIFTING ANALYSIS

BURDEN OF PROOF; ONCE CASE IS TRIED, COMPLAINANT’S CASE MUST BE ESTABLISHED BY THE PREPONDERENCE OF THE EVIDENCE; PRIMA FACIE CASE BURDEN RELATES TO INVESTIGATORY STAGE AND TO RAISING OF INFERENCE ON CAUSATION SUFFICIENT TO AVOID SUMMARY DECISION; IN INSTANT CASE, ALJ’S USE OF PRIMA FACIE INFERENCE IN DECISION RENDERED AFTER EVIDENTIARY HEARING RESULTED IN FAILURE TO ADEQUATELY CONSIDER DEFENDANT’S LEGITIMATE, NON-DISCRIMINATORY REASON FOR ADVERSE ACTION

In Acosta v. Union Pacific Railroad Co., ARB No. 2018-0020, ALJ No. 2016-FRS-00082 (ARB Jan. 22, 2020), the ALJ determined that Defendant violated the FRSA and awarded back pay to Complainant. On appeal, the ARB found that the ALJ erred in his contributing factor and same-action defense analyses. The ARB remanded for further proceedings. The primary problem with the ALJ’s analysis was that it was difficult to determine whether he used the correct preponderance of the evidence standard.

When analyzing contributing factor causation, the ALJ stated that the temporal relationship between Complainant’s protected activity and his termination may be sufficient circumstantial evidence to prove “prima facie” contributing factor causation. In his summation of the contributing factor section of his decision, the ALJ likewise wrote that there was sufficient circumstantial evidence to prove, “prima facie,” that the protected activity was a contributing factor to the adverse action. The ARB explained why this was problematic:

Despite its commonplace occurrence in the post-hearing opinions of ALJs, a “prima facie case” is usually associated with an inference and the investigatory phase of a whistleblower complaint, not proof after hearing. See, e.g., Zinn v. Am. Commercial Lines, ARB No. 10-029, ALJ No. 2009-SOX-025, Slip op. at 10 (ARB Mar. 28, 2012) (explaining the different phases of investigation and proof by a preponderance after an evidentiary hearing); Hoffman v. Nextera Energy, ARB No. 12-062, ALJ No. 2010-ERA-011, slip op. at 12 (ARB Dec. 17, 2013) (prima facie showing irrelevant once case goes to hearing before ALJ). As the Eleventh Circuit has noted, incorporation of the term “prima facie case” into whistleblower adjudication has “bred some confusion, chiefly because the phrase evokes the sprawling body of general employment discrimination law.” Stone & Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997) (citations omitted). At the evidentiary stage after hearing, the complainant is required to prove the elements by a preponderance of the evidence, including proof that protected activity was a contributing factor in the adverse action, 29 C.F.R. § 1982.109(a), and not merely allege circumstances sufficient to establish the four elements, including circumstances sufficient to raise the inference that the protected activity was a contributing factor, 29 C.F.R. § 1982.104(e)(2)(iv). Gale v. Ocean Imaging, ARB No. 98-143, ALJ No. 1997-ERA-038, slip op. at 9 (ARB July 31, 2002) (‘‘However, because this case has been fully tried on the merits, we move beyond the question of whether Complainant has presented a prima facie case to analysis of the evidence on the ultimate question of liability.’’); Palmer v. Canadian Nat’l Ry, IL Cent. R.R. Co., ARB 16-035, ALJ No. 2014-FRS-154, slip op. at 20 n.87 (ARB Jan. 4, 2017) (reissued with dissent) (comparing and contrasting the investigation stage with the burden of proof after hearing); Rookaird, 908 F.3d 461-62 (same).

Slip op. at 6-7.

The ARB reviewed the ALJ’s decision and concluded that he had, in fact, employed a prima facie case analysis when determining that temporal proximity of the protected activity and adverse action raised an inference of causation. The ARB stated that “[g]enerally, temporal proximity is associated with an inference to avoid summary judgment and is not sufficient to prove contributing factor causation by a preponderance of the evidence,” Id. at 8 (citations omitted), and that “[t]he mere circumstance that protected activity precedes an adverse personnel action is not proof of a causal connection between the two.” Id. (citations omitted). Rather, “[p]roof of retaliation for engaging in protected activity under the FRSA generally requires more than the mere temporal relationship that an adverse action followed an instance of protected activity.” Id. The ARB stated that “[t]emporal proximity may be supported by other forms of circumstantial evidence establishing the evidentiary link between the protected act and the adverse action such as inconsistent application of an employer’s policies, pretext, shifting explanations by the employer, or antagonism.” Id. (citations omitted). The ARB also stated that “[t]he insufficiency of temporal proximity as a basis for proving causation is even more apparent when the facts reveal an intervening event occurring between the protected activity and the adverse personnel action.” Id. (citations omitted). The ARB also noted that “[t]he limited causal value of temporal proximity is especially prominent in a whistleblower case where most of a complainant’s job may consist of protected activity.” Id.

The ARB stated that the ALJ’s erroneous use of a prima facie inference was compounded by his errors relating to Defendant’s legitimate, nondiscriminatory reasons for terminating Complainant—the ALJ having substituted his perception of the poor merits of Defendant’s employment decision to find that the reasons were not honestly held and thus pretext for FRSA retaliation. The ARB outlined the ALJ’s reasoning that Complainant was not vicariously liable for safety violations of his crew, and thus discipline of Complainant was pretextual. Finding the ALJ’s reasoning deficient, the ARB wrote:

   The ALJ erred in the above analysis by focusing on his perceptions of the merits of Union Pacific’s justifications for terminating Acosta. The question is not whether Acosta violated Union Pacific’s rules, whether he actually was or was not point protector for the entire time, or whether Union Pacific proved that he was not actually in charge of the team’s work as opposed to being a leader of the team. Jones v. U.S. Enrichment Corp., ARB Nos 02-093, 03-010, ALJ No. 2001-ERA-021 (ARB Apr. 30, 2004) (“‘It is not enough . . . to disbelieve the employer: the factfinder must believe the plaintiff’s explanation of intentional discrimination.”) (case citation omitted). The ARB has stated on many occasions that the ALJ should not sit as a super-personnel advocate when viewing the employer’s decisions for an adverse action. Clem v. Computer Sciences Corp., ARB No. 16-096, ALJ Nos 2015-ERA-003, 004 (ARB Sept. 17, 2019); Gale v. Ocean Imaging, ARB No. 98-143, ALJ No. 1997-ERA-038, slip op. at 13 (ARB July 31, 2002) (“Moreover, the thrust of Complainant’s argument is that it was wrong, unfair, or unjust for Respondents not to weigh the grounds that they cited against Complainant’s past performance and find in favor of retaining her, and that therefore Respondent’s rationale was pretext. However, “[I]t is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible . . . [rather] he must show that the explanation is a ‘phony reason.’” citing Kahn v. U.S. Sec’y of Labor, 64 F.3d 271, 278 (7th Cir. 1995)). The FRSA is not a wrongful termination statute. An employer’s actions can be harsh, faulty, and unjustified, but this does not establish that the employer retaliated for FRSA whistleblowing activity.

   Rather, the issue to be decided by the ALJ when evaluating the employer’s reasons for its action is first whether Union Pacific genuinely or honestly believed that Acosta was responsible in whole or in part for the pattern of safety violations or the twenty-two car collision. And if so, whether that belief and not protected activity accounted for its disciplinary actions. Clem, ARB No. 16-096: Stone & Webster, Constr., Inc. v. U.S. Dept. of Labor, 684 F.3d 1127, 1136 (11th Cir. 2012).

   We do not say that the believability of the employer’s reasons is not relevant to a whistleblower retaliation claim. If the employer’s reasons were so unbelievable as to be unworthy of credence, this would be evidence in favor of Acosta, either at the contributing factor stage or preventing the employer from establishing its affirmative defense. The ALJ had traditional grounds for establishing pretext for FRSA retaliation such as disparate treatment with similarly situated comparators, a history of retaliation against persons who engage in protected activity, and so on. However, this is not the analysis that the ALJ performed.

Id. at 11-12 (footnote omitted). In sum, the ARB found that these errors required a remand to weigh the evidence under the preponderance of the evidence standard.

Similarly, the ARB found that the errors in the ALJ’s causation analysis carried over to his analysis of Defendant’s affirmative defense as the ALJ again relied upon his perception of the merits of Defendant’s justifications and not its honestly held basis for the termination. The ARB stated that “The ALJ committed error by shifting the issue to be decided from retaliation for FRSA protected activity to the accuracy or merits of Union Pacific’s termination decision.” Id. at 13.

VIII PROTECTED ACTIVITY

20109(a): Protected Activity

PROTECTED ACTIVITY; REQUESTS TO RETURN TO WORK ARE NOT PROTECTED ACTIVITY

PROTECTED ACTIVITY; ARB ASSUMED ARGUENDO THAT ALJ WAS CORRECT IN DETERMINING THAT REPORTING OF INJURY AND ELABORATION ON THAT INJURY DURING FELA TRIAL ARE PROTECTED ACTIVITY UNDER THE FRSA

In Johnson v. Union Pacific Railroad Co., ARB No. 2021-0041, ALJ No. 2019-FRS-00005 (ARB Jan. 25, 2022) (per curiam), Complainant sustained substantial work-related injuries for which he pursued a claim under the Federal Employers’ Liability Act (FELA). During the trial on the FELA claim, Complainant's attorney asserted that Complainant's injuries were permanent and that he was no longer capable of performing his job duties. Complainant's treating physician testified that he did not recommend that Complainant perform his usual work activities even if he underwent additional surgery, and that a realistic expectation of Johnson’s work capacity would range from sedentary to medium. The jury returned a verdict in Complainant’s favor awarding damages that included a substantial amount designated for future lost earning capacity and fringe benefits. Respondent satisfied a reduced judgment of $993,121.60.

Complainant continued to receive medical treatment, and about a year later a physical examiner and Complainant’s treating physician both cleared Complainant to return to work with no restrictions. Complainant’s union representative contacted Respondent’s Labor Relations Department regarding steps for Complainant to return to work. Respondent’s representative responded that, based on testimony in the FELA proceeding, Complainant was “estopped from returning to service.” Complainant then filed a retaliation complaint alleging that he engaged in protected activity pursuant to 49 U.S.C. § 20109(c)(2) when he requested to return to work based on his physician’s clearance. The ALJ dismissed the complaint.

On appeal, Complainant argued that the ALJ erred in concluding that his request to return to work was not protected activity. The ARB, however, noted that it has held that requests to return to work are not protected activity, citing Rudolph v. Nat’l R.R. Passenger Corp., ARB Nos. 2014-0053, -0056, ALJ No. 2009-FRS-00015, slip. op. at 16-18 (ARB Apr. 5, 2016).

The ALJ had also found that Complainant did engage in protected activity by reporting his injury and elaborating on it during the FELA trial. On appeal, the ARB assumed arguendo that the ALJ was correct in finding that Complainant engaged in protected activity in reporting an injury and elaborating on it in a FELA trial. The ARB nonetheless affirmed the ALJ’s determination that Complainant had not established contributory factor causation.

PROTECTED ACTIVITY; ARB REITERATES ITS HOLDING IN CIESLICKI THAT REPORTING, OR REFUSING TO WORK BECAUSE OF, A PERSONAL, NON-WORK RELATED ILLNESS MAY CONSTITUTE

In Ingrodi v. CSX Transportation, Inc., ARB No. 2020-0030, ALJ No. 2019-FRS-00046 (ARB Mar. 31, 2021), alleged that Respondent violated the FRSA by terminating his employment after he refused to work when he had a non-work related illness. Complainant had been suffering from vomiting and diarrhea, and “believed that if he had worked that day, his medical condition would have affected his ability to safely operate a train and make him a danger to himself and/or co-workers.” Slip op. at 2. The ALJ granted Respondent’s motion for summary decision determining, based on the decisions of several federal courts, that a personal, non-work related illness does not constitute a hazardous condition under the FRSA. The ARB remanded for further proceedings based on its subsequent decision in Cieslicki v. Soo Line Railroad Co., ARB No. 2019-0065, ALJ No. 2018-FRS-00039 (ARB June 4, 2020), holding that a “hazardous safety or security condition” may result from an employee working in an impaired or diminished physical state and that the FRSA “does not require that a condition be ‘work-related’ or state that the condition cannot relate to an employee’s physical condition.” Id. at 6 (citing 49 U.S.C. § 20109(b)(1)(A) and (B)). The ARB wrote:

We reiterate our conclusion in Cieslicki that Section 20109(b)(1) of the FRSA “does not require that a condition be ‘work-related’ or state that the condition cannot relate to an employee’s physical condition.” Consistent with this conclusion, we hold that an employee impaired by an illness can create a hazardous safety or security condition under the FRSA. Depending on the circumstances of the particular case, a worker impaired by illness, like a worker impaired by alcohol or like a faulty or unsafe piece of equipment or line of track, could present a danger or threat of serious harm or injury to the worker, to his or her colleagues, and to the public. To hold otherwise could implicitly incentivize impaired employees to work despite the risk of causing great harm or injury to themselves or those around them, for fear of discipline. In light of Section 20109(b)(1)’s broad and general language, the overarching purposes of the FRSA, and our precedent in the same and analogous contexts, we hold that reporting, or refusing to work because of, a personal, non-work related illness may constitute protected activity under Section 20109(b)(1) of the FRSA.

Although there is the possibility that a personal, non-work related illness could, under certain circumstances, create a hazardous safety or security condition, we do not opine on whether Ingrodi’s illness created such a condition. Additionally, we do not opine on whether Ingrodi reported and/or notified CSX of the purported hazardous safety or security condition, as required by the FRSA.

Based on the current record, the evidence shows that Ingrodi initially communicated that he was sick and could not work, and that the treating emergency room doctor ordered him to remain off work for two days (but only later communicated that he explicitly believed his illness prevented him from safely conducting a train). Accordingly, we remand the matter to the ALJ to further develop the record, as reasonably necessary, and determine whether Ingrodi’s nonwork-related illness, and concomitant refusal to work, constituted a “hazardous safety or security condition” that is protected activity under FRSA. In reaching this determination, the ALJ should consider evidence concerning, for example, the nature and extent of Ingrodi’s illness and symptoms, the nature of the work he was expected or could have performed, and the impact his illness and symptoms would have had on his ability to perform that work.

In addition, the ALJ must determine on remand whether Ingrodi’s communication to CSX satisfied the notice or reporting requirements of FRSA Section 20109(b)(1). These issues present factual or legal questions that should be resolved by the ALJ on remand in light of our holding in Cieslicki.

Id. at -9 (footnotes omitted).

PROTECTED ACTIVITY; OFF-DUTY PLAINTIFF CALLED TO REPORT TO DERAILMENT; PLAINTIFF’S REFUSAL TO VIOLATE FEDERAL SAFETY REGULATION AND REPORT OF HAZARDOUS SAFETY OR SECURITY CONDITION BASED ON PLAINTIFF’S HAVING BEEN INTOXICATED WHILE OFF-DUTY; NORTHERN DISTRICT OF NEW YORK DECLINES TO FOLLOW SOUTHERN DISTRICT OF NEW YORK DECISION IN LOCKHART; FINDS ARB DECISION IN CIESLICKI TO BE PERSUASIVE

In Kurec v. CSX Transportation, Inc., No. 18-cv-670 (N.D. N.Y. Nov. 4, 2020) (2020 WL 6484056), Plaintiff alleged that Defendant violated the FRSA “by firing him after he: refused to drive to work during a snowstorm; refused to drive while fatigued; and refused to report to work while intoxicated.” Slip op. at 1. The court denied Defendant’s motion for summary judgment on the FRSA claim but granted dismissal of a state law claim.

The court declined to follow Lockhart v. Long Island R.R. Co., 266 F. Supp. 3d 659 (S.D.N.Y. 2017), aff’d sub nom. Lockhart v. MTA Long Island R.R., 949 F.3d 75 (2d Cir. 2020), in which the court had granted summary judgment to the defendant based on a holding that § 20109(a)(2) did not protect a railroad worker from discipline by his employer when he stayed home after taking Oxycodone as treatment for an injury. The district court in Lockhart had reasoned that no authority supported the extension of (a)(2) to non-railroad equipment related conditions. The court in Kurec, however, found no reason to cabin (a)(2) to refusals to violate laws and regulations pertaining to railroad machinery, noting that the plain text of the statute applies to any Federal law, rule or regulation relating to railroad safety or security, and that “regulations prohibiting on-the-job inebriation clearly ‘relat[e] to railroad safety or security….’” Id. at 12. The court was also not persuaded by the Lockhart court’s concern of an absurd result of insulating an employee immunizing himself from discipline by being under the influence for recreational purposes. The court found that a reasonable jury could conclude that Plaintiff’s refusal to report while intoxicated was done, both subjectively and objectively in good faith. In the instant case, the court noted that Plaintiff had not been on call at the time of the derailment to which he was directed to report; the parties agreed that Plaintiff was not prohibited from drinking while off duty and not on call; Plaintiff quickly arranged for another employee to report; upon learning of the derailment, Plaintiff stopped drinking, got some sleep, and when apparently sobered up in the morning, had departed for the scene before been told by a supervisor not to report. The court also noted the ARB’s decision not following Lockhart in Cieslicki v. Soo Line R.R. Co., ARB No. 2019-0065, ALJ No. 2018-FRS-00039 (ARB June 4, 2020) (per curiam), and found that it was persuasive and entitled to deference. The court also declined to apply Lockhart in the subsection (b)(1) (A) and (B) context.

PROTECTED ACTIVITY; COMPLAINANT FIRED FOR COMMUNICATIONS WITH RAILWAY CLIENT DETRIMENTAL TO RAILWAY’S RELATIONSHIP WITH THE CLIENT COULD NOT SHOW THAT DECISIONMAKERS WERE AWARE AT THE TIME OF THE DECISION OF ANY PURPORTED SAFETY CONCERNS RAISED WITH THE CLIENT DURING THE COMMUNICATIONS; CLIENT WAS NOT SHOWN TO BE AN ENTITY WITH AUTHORITY TO INVESTIGATE, DISCOVER, OR TERMINATE THE MISCONDUCT UNDER § 20109(a)(1)(C) WHERE COMPLAINANT KNEW RESPONDENT HAD MADE DECISION TO USE OHIO RATHER MICHIGAN BASED CREWS TO SERVICE CLIENT

In Cole v. Norfolk Southern Railway Co., ARB No. 2019-0029, ALJ No. 2018-FRS-00023 (ARB July 14, 2020), Complainant was a conductor for Respondent railway in its Dearborn Division, and local chair of his union. Respondent entered into a contract with DTE Energy to provide rail service to coal-fired plants in the Detroit area. Respondent informed the unions that Ohio-based crews would be used for the service. The unions opposed this decision under the Railway Labor Act. Respondent filed a civil action in Federal district court seeking arbitration. Complainant, seeking information to provide witness names for the Federal suit, contacted an official at DTE during which he asked the DTE official to “confirm or deny” whether DTE made the decision to use Ohio-based crews. During the conversation, Complainant asked the DTE “[i]f the union was to put it on a billboard that DTE was requiring the Norfolk Southern to move, or to use the base in Toledo would that be true?” The DTE official cautioned that DTE would pursue a libel claim if false information was published, to which Complainant replied, “Oh, we have our lawyers too.” When Respondent learned of the phone call, Complainant was removed from service pending an investigation into whether Complainant had attempted to undermine Respondent’s business relationship with DTE. Complainant was ultimately terminated for conduct unbecoming of an employee and detrimental to Respondent’s interests. Complainant filed a FRSA complaint with OSHA. The ALJ granted summary decision denying the complaint finding that the conversation with the DTE official was not protected activity. The ARB summarily affirmed the ALJ’s decision.

The ARB found that the record supported Respondent’s contention that Complainant did not convey to Respondent at any point prior to his termination any safety concerns he may have raised to the DTE official. Rather, the first time Complainant indicated that he conveyed safety concerns to the DTE official was during a deposition more than a year and half after his employment was terminated.

The ARB also found no merit to Complainant’s argument that his phone call with the DTE official was FRSA protected activity regardless of what was said because he believed DTE had “the authority to investigate, discover, or terminate the misconduct” pursuant to 49 U.S.C. § 20109(a)(1)(C). The ARB pointed to the complaint filed by Respondent in Federal court which stated that Respondent decided to use Ohio-based crews and that DTE was not involved in this decision. The ARB stated: “As DTE was not involved in this decision, it could not have investigated or terminated the alleged misconduct. Further, as Complainant was served with this complaint twelve days prior to his phone call with Mr. Corbett, he cannot demonstrate a good faith belief that Mr. Corbett, DTE’s Communications Manager, had the authority to investigate, discover, or terminate any alleged misconduct.” Slip op. at 8.

PROTECTED ACTIVITY; ARB REJECTS CONTENTION THAT FRSA PROTECTED ACTIVITY DOES NOT COVER EMPLOYEE WHO VOLUNTARILY BECAME IMPAIRED TO WORK; ARB, HOWEVER, NOTES THAT DISCIPLINE MAY BE PERMISSIBLE IF DRIVER KNEW HE WAS ON CALL OR IF THE IMPAIRMENT WAS ILLEGAL

In Cieslicki v. Soo Line Railroad Co., ARB No. 2019-0065, ALJ No. 2018-FRS-00039 (ARB June 4, 2020) (per curiam), Complainant alleged that Respondent violated the FRSA by terminating him in retaliation for telling his employer that he could not report to work because he drank two glasses of wine with dinner. The ALJ granted Respondent’s motion to dismiss for failure to state a claim on the ground that a self-reported, non-work-related physical state caused by a personal decision to consume alcohol while off duty is outside the scope of the hazardous safety conditions contemplated by the FRSA. The ARB reversed and remanded for further proceedings.

Although the ALJ cited several district court decisions in support of his ruling, including Lockhart v. Long Island R.R. Co., 266 F. Supp. 3d 659 (S.D.N.Y 2017), the ARB disagreed, finding that the FRSA is not so limited. The ARB noted that although the Second Circuit had affirmed the district court’s decision in Lockhart, it did so on different grounds.

The ARB analyzed the protected activity covered by FRSA, 49 U.S.C. §20109(a)(2) and 49 U.S.C. §20109(b)(1)(A) and (B), and found that they do not limit their application to work-related conditions. In regard to the latter section, the ARB held that “[t]he term ‘hazardous condition’ is broad and may encompass many types of hazardous conditions. We hold that it is broad enough to include impaired railroad workers who present a danger of death or serious injury if they were to work without reporting those hazardous conditions, or refusing to work because of their impaired condition.” Slip op. at 7. The ARB found that the STAA and ARB precedent supported its holdings.

The ARB, concluded with the following observations:

Concerning both subparts (a) and (b) of 49 U.S.C. §20109, the ALJ relied on an inaccurate premise for support. Contrary to what the ALJ and the district court in the Southern District of New York (in Lockhart) contend, our ruling does not mean that an employee who engages in protected activity by refusing to work because of his impairment may not be disciplined. If an employer decides to discipline an employee because the employee voluntarily chose to become impaired at a time when the employee knew that he should not be impaired (because he was on call, or because it is illegal), then the employer is not prohibited by the FRSA from taking disciplinary action.

Thus, following the plain language of the statute to allow for such reports if a violation of a rule is implicated, or a hazardous safety or security conditions exists, does not lead to “absurd results.” Indeed, an absurd result would occur if an employee who is not on call, drinks alcoholic beverages (as adults of legal age are allowed to do), gets called to work unexpectedly, and then has to choose between working in an impaired state on the railroad (violating federal law or causing a hazardous safety or security condition), or getting fired for indicating that he cannot safely report for duty.

Id. at 9.

PROTECTED ACTIVITY; RAISING OF CONCERN THAT FOREMAN LACKS PROPER QUALIFICATIONS; SUMMARY JUDGMENT GRANTED UNDER 20109(a)(2) WHERE PLAINTIFF DID NOT POINT TO A FEDERAL LAW, RULE OR REGULATION THAT HAD BEEN VIOLATED

In Gonzalez v. Metro-North Commuter R.R., No. 18-cv-10270 (S.D. N.Y. Jan. 15, 2020) (2020 U.S. Dist. LEXIS 9059), Plaintiff alleged that Defendant violated the whistleblower provision of the FRSA when he was discharged for insubordination. Plaintiff alleged that the real reason for the discharge was protected activity regarding Plaintiff’s reports of unsafe conditions of company trucks and regarding Plaintiff’s questioning of whether a foreman had the proper safety qualifications to lead the gang onto the tracks. The court granted Defendant’s motion for summary judgment.

20109(b): Hazardous Safety or Security Conditions

PROTECTED ACTIVITY; WHETHER A PERSONAL ILLNESS IS A HAZARDOUS SAFETY OR SECURITY CONDITION UNDER FRSA, 49 U.S.C. § 20109(b)(1)(A); COURT REJECTS ARB’S CIESLICKI AND INGRODI DECISIONS AND INSTEAD ADOPTS REASONING OF OTHER DISTRICT COURTS THAT A SELF-REPORT OF A WORK-RELATED ILLNESS DOES NOT CONSTITUTE A REPORT OF A HAZARDOUS SAFETY OR SECURITY CONDITION UNDER (b)(1)(A)

In Matta v. Kansas City Southern Railway Co., No. 20-CV-48 (S.D. Tx. Mar. 30, 2022) (2022 U.S. Dist. LEXIS 87407), Defendant filed a motion for summary judgment on a variety of procedural and substantive grounds on Plaintiff’s FRSA retaliation claim. During a hearing on the motion, Plaintiff clarified that he was bringing claims under the FRSA, 49 U.S.C. §§ 20109(a)(4) and 20109(b)(1)(A). The protected activity for the (a)(4) claim was notification of Plaintiff’s manager of a personal illness consisting of feeling fatigued, exhausted, and disoriented. The basis for the (b)(1)(A) claim was “(1) the same report of a personal illness and (2) [Plaintiff’s refusal] to release a railcar that had not been properly tested after he reported to his supervisor that an airbrake test had not been conducted.”

One of Defendant’s arguments was that Plaintiff’s personal illness did not constitute a “hazardous safety or security condition.” The Fifth Circuit had not yet addressed this question. Plaintiff cited two ARB decisions, Cieslicki v. Soo Line R.R. Co., ARB No. 2019-0065, ALJ No. 2018-FRS-00039, at *4 n.5 (ARB June 4, 2020) and Ingrodi v. CSX Transp., ARB No. 2020-0030, ALJ No. 2019-FRS-00046, at *4 (ARB Mar. 31, 2021), holding that (b)(1)(A) does apply to an employee’s report of a personal impairment. The court, however, agreed with the contrary analysis of the courts in Williams v. Illinois Central Railroad Co., No. 3:16-CV-00838, 2017 WL 2602996 (S.D. Miss. June 15, 2017) and Weber v. BNSF Railway Co.¸ No. 4:18-cv-00367, 2019 WL 9100375, at *8 (N.D. Tex. Dec. 6, 2019). The court found that

. . . to interpret (b)(1)(A) to include a report of a work-related illness would make the language of (a)(4) superfluous. Furthermore, it does not undermine the safety goals of the FRSA to interpret (b)(1)(A) as not including self-reports of work-related illness because that activity is protected by (a)(4). In conclusion, given the construction of the statute, the Court agrees with KCSR that Matta’s self-report of a work-related illness does not constitute a report of a hazardous safety or security condition under (b)(1)(A). KCSR’s motion for summary judgment is granted on this ground.

Slip op. at 13.

PROTECTED ACTIVITY UNDER FRSA 49 U.S.C. § 20109(b)(1)(A); EIGHTH CIRCUIT JOINS SECOND CIRCUIT IN DETERMINING THAT OBJECTIVE REASONABLENESS IS NOT AN ELEMENT OF A REPORTING-A- HAZARDOUS-SAFETY-CONDITION COMPLAINT

PROTECTED ACTIVITY UNDER FRSA 49 U.S.C. § 20109(b)(1)(A); EIGHTH CIRCUIT WAS NOT PERSUADED BY BNSF’S ARGMENT THAT THE FRSA REPORTING PROVISON REPORTING PROVISION “REQUIRES AN EXISTING, PHYSICAL, TANGIBLE HAZARDOUS SAFETY CONDITION THAT CAN BE REMEDIATED”

In Monohon v. BNSF Railway Co., No. 18-3346 (8th Cir. Nov. 4, 2021) (2021 U.S. App. LEXIS 32840; 2021 WL 5114271), the Eighth Circuit Court of Appeals joined the Second Circuit in concluding that objective reasonableness is not an element of a reporting-a-hazardous-safety-condition complaint under FRSA, 49 U.S.C. § 20109(b)(1)(A). See Ziparo v. CSX Transp., Inc., 15 F. 4th 153, 155 (2d Cir. 2021).

Background

Plaintiff-Appellant (Monohon), worked for Defendant-Appellee (BNSF) as a railroad track inspector. Following some recent serious accidents, a BNSF Roadmaster conducted a conference call in which he reiterated a rule requiring employees to wear seat belts while operating or riding in a hy-rail vehicle. A hy-rail is a pickup truck that can operate both on pavement and on railroad tracks. Monohon expressed a concern that wearing a seatbelt while hy-railing would make it difficult to bail out if a train approached. The Roadmaster replied that he understood the concern, but that the seatbelt rule must be followed. The next day, Monohon was discovered hy-railing while not wearing his seatbelt. Monohon seemed surprised when confronted that his seatbelt was not fastened, and explained that he had been in and out the vehicle several times that day. The Line Chief reminded Monohon of the recent accidents, and asked him to fasten his seatbelt, which he did. Monohon was told that he would receive an operations test failure and was asked to commit to wearing the seatbelt in the future. Monohon replied by reiterating his concern that a fastened seatbelt would prevent a quick bail out. The Line Chief ended the conversation and sent Monohon for the day. The Line Chief later testified that Monohon did not raise his voice, become argumentative, or disobey any orders during the conversation.

The Line Chief then emailed the Director of Line Maintenance, explained the discussion with Monohon, and related that although they had a good discussion, it had become apparent that getting compliance with the seatbelt rule would be a struggle. The Director commenced an investigation to determine whether Monohon had been insubordinate. The hearing officer found that by engaging the Line Chief with his objection to the seatbelt rule, Monohon had escalated the matter from a minor oversight to the more serious charge of insubordination. The hearing officer recommended suspension or dismissal.

The Director reviewed the hearing transcript and exhibits, considered the hearing officer’s findings and recommendations, and discussed the matter with other managers. He then decided to terminate Monohon’s employment for insubordination, concluding that failure to wear the seatbelt was a serious rules violation, and that Monohon’s failure to commit to wearing a seatbelt constituted insubordination. Monohon then brought Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109(b)(1)(A) suit, charging that BNSF discharged him for reporting, in good faith, a hazardous safety condition. A jury found in favor of Monohon, but the district court later granted BNSF’s motion for judgment as a matter of law. The district court found that Monohon’s claim of reporting hazardous safety condition was not objectively reasonable and was not supported by the facts of the case.”

FRSA Reporting Provision Only Requires Good Faith, and Not Objective Reasonableness

The Eighth Circuit reversed the district court’s judgment as a matter of law, and remanded for reinstatement of the jury verdict and other relief. The court first quoted § 20109(b)(1)(A), which prohibits railroads from retaliating against their employees for “reporting, in good faith, a hazardous safety or security condition.” The Eighth Circuit determined that the plain language of the reporting provision of the FRSA only requires the employee to report “in good faith,” and does not require that the report be objectively reasonable, citing Ziparo, supra. The court noted that the refusal-to-work provision of § 20109(b)(1)(B), in contrast, requires both good faith and objective reasonableness. Citing decisions on statutory construction, the court found that the difference in statutory language reflected Congress’s decision to omit reasonableness in the reporting provision. The court also found that broad protection for good faith reports was in accord with the FRSA’s purpose to “empower[] employees to make good faith reports of hazardous safety conditions without fear of retaliation.” Slip op at 10. The court went on to further explain its reasoning and to state its agreement with the Second Circuit’s decision on the question in Ziparo.

Whether Reporting Provision Requires a Tangible Hazardous Safety Condition

BNSF also argued that the FRSA reporting provision “requires an existing, physical, tangible hazardous safety condition that can be remediated.” Id. at 13. The court, however, found that the FRSA does not require that an accident or injury had occurred. Here, the jury made a finding of fact that Monohon’s report regarding the danger of wearing a seatbelt while hy-railing was a report of a hazardous safety condition. The court found that the record contained a legally sufficient evidentiary basis to support the jury’s finding, reciting evidence that incidents have occurred where a hy-rail or train have collided or nearly collided, and that wearing a seatbelt could impede a bail out.

Evidence Sufficient to Support Finding of Intentional Retaliation

The court further found that the evidence was sufficient to support the finding that the Director of Line Maintenance intentionally retaliated against Monohon. The court cited the Director’s testimony that he terminated Monohon for not wearing his seatbelt and for being insubordinate, and had considered the hearing officer’s report which found that Monohon had been insubordinate for reporting his concern to the Line Chief. The court also cited Monohon’s evidence that BNSF had not terminated employees for violating the seatbelt rule, that he had not disobeyed any orders, and that he had not acted in an incorrigible manner when he raised his safety concern with the Line Chief.

Evidence Did Not Support Judgment As a Matter of Law Rejecting Jury Verdict

The court found that it could not be said that the evidence so pointed all in one direction such that no reasonable interpretation could support the jury’s verdict; that the district court erred in granting BNSF judgment as a matter of law; and that it was immaterial that the court might have drawn a different interference and felt that another conclusion was more reasonable.

FRSA PROTECTED ACTIVITY; § 20109(b)(1)(A) ONLY REQUIRES SUBJECTIVE GOOD FAITH; §§ 20109(b)(1)(B) AND (b)(1)(C) REQUIRE BOTH SUBJECTIVE AND OBJECTIVE GOOD FAITH

NON-PHYSICAL HAZARDOUS SAFETY OR SECURITY CONDITIONS ARE NOT CATEGORICALLY EXCLUDED AS PROTECTED ACTIVITY UNDER § 20109(b)(1)(A); HOWEVER, THEY MUST INVOLVE THE OPERATION OF THE RAILROAD AND MUST BE WITHIN THE CONTROL OF THE RAILROAD TO REMEDY

PROTECTED ACTIVITY; COMPLAINTS OF STRESSFUL AND DISTRACTING WORK CONDITIONS MAY FALL WITHIN THE SCOPE OF “HAZARDOUS SAFETY OR SECURITY CONDITION[S]” UNDER § 20109(b)(1)(A)

In Ziparo v. CSX Transportation, Inc., No. 20-1196 (2d Cir. Sept. 24, 2021) (2021 U.S. App. LEXIS 28941; 2021 WL 4343290), the Second Circuit Court of Appeals decided, on a matter of first impression, that the FRSA protected activity of reporting in “good faith” a hazardous safety or security condition under 49 U.S.C. § 20109(b)(1)(A), “requires only that the reporting employee subjectively believe that the matter being reported constitutes a hazardous safety or security condition, regardless of whether that belief is objectively reasonable….” Slip op. at 2. The court also determined that the District Court erred in determining that Plaintiff-Appellant’s (Ziparo) report that pressure from supervisors to make false entries in work reports was causing employees undue stress and distraction from their duties, was not protected activity because only physical conditions subject to the railroad’s control could constitute such a “hazardous safety or security condition.” The court held that “the statutory text suggests no reason to confine the meaning of ‘hazardous safety or security condition’ to encompass only physical conditions.” Id.

FRSA protected activity; § 20109(b)(1)(A) only requires subjective good faith; §§ 20109(b)(1)(B) and (b)(1)(C) require both subjective and objective good faith

The court noted that the district court had not been alone in interpreting § 20109(b)(1)(A) to contain an objective reasonableness element, but determined that those decisions erroneously relied on appellate decisions interpreting other whistleblower statutes that included specific statutory language requiring objective reasonableness. FRSA § 20109(b)(1)(A) does not contain such language. FRSA §§ 20109(b)(1)(B) and (b)(1)(C), in contrast, contain an objective reasonableness requirement. Thus, Congress knew how to include an objective reasonableness test in § 20109(b)(1)(A) if it so intended. The court also found that interpreting § 20109(b)(1)(A) to only require subjective good faith was consistent with the FRSA’s purpose. The court also found its interpretation to be consistent with the overall structure of § 20109(b). The court stated:

Section 20109(b)(1) creates three different types of protected activities: § 20109(b)(1)(A) protects employees who report hazardous safety or security conditions; § 20109(b)(1)(B) protects employees who refuse to work when confronted by such a hazardous condition; and § 20109(b)(1)(C) protects employees responsible for inspecting or repairing certain railroad equipment who refuse to authorize the use of such equipment when they believe that the equipment is in a hazardous condition.

The conditions under which those categories of employees are protected, however, are different, and are made more restrictive as the burden imposed on the railroad by their actions escalates. Employees who simply report a hazardous condition are protected against retaliation by § 20109(b)(1)(A) on the sole condition that they make their report “in good faith.” Employees who take the more dramatic and burdensome steps of refusing to work or refusing to authorize the use of equipment when they believe that doing so would create a hazardous condition are subject to additional requirements, which are spelled out in § 20109(b)(2). Those employees too must act “in good faith,” 49 U.S.C. § 20109(b)(2)(A), but their belief must also be one that would be held by “a reasonable individual in the circumstances then confronting the employee,” id. § 20109(b)(2)(B).

This broader context helps to explain why Congress would subject some actions by employees, but not others, to an objective reasonableness requirement in order to be protected. A refusal to work or to authorize the use of equipment imposes a substantial burden on a railroad. In contrast, a mere report of a putative safety violation to the railroad itself, even if mistaken, imposes no meaningful costs on the railroad. Nor does the protection extended to an employee making such a report impose unreasonable burdens or costs: The FRSA does not require the railroad to take remedial action on the basis of the employee’s report, or even to investigate the reported condition. If the railroad concludes that the report does not really create a safety or security concern, it remains free to dismiss the report entirely. To avoid liability, it need only refrain from punishing the employee making the report.

Id. at 19-22 (footnote omitted) (emphasis as in original).

The court found that this did not create an absurd or intolerable result. The court stated: “The FRSA does not permit incompetent workers to hide behind a report that they later seek to characterize as involving safety. The statute does not protect from discipline every worker who has previously made, even in good faith, a report of a purported safety violation, or preclude any consideration of the reasonableness of the report. Rather, it prohibits the railroad from disciplining a worker ‘for’ reporting such a condition. 49 U.S.C. § 20109(b).” Id. at 22.

Non-physical hazardous safety or security conditions are not categorically excluded as protected activity under § 20109(b)(1)(A); however, they must involve the operation of the railroad and must be within the control of the railroad to remedy

As to what an employee must report in good faith to be protected under § 20109(b)(1)(A), the court noted that the words “hazardous safety or security condition” are not defined in the FRSA, and that it would accord them their ordinary meaning. The court stated that because these words are of common usage, there is no need to define them further. The court found that the district court erred in imposing a non-textual, categorical restriction that the conditions reported must be physical conditions within the control of the rail carrier to be protected. The court noted that it was plain that non-physical conditions can create safety hazards. The court stated that this does not mean that the term “hazardous safety or security condition” has no limitations whatsoever, agreeing with the Third Circuit in Port Auth. Trans-Hudson Corp. v. Sec’y, U.S. Dep’t of Labor, 776 F.3d 157, 166 (3d Cir. 2015), that its reach is limited to conditions involving the operation of the railroad. The court also found that the term’s reach only embraces conditions that are within the control of the railroad to remedy, citing as an example Jones v. BNSF Ry. Co., No. 18-cv-146, 2020 WL 2062180, at *6-7 (D. Mont. Apr. 29, 2020), where the complainant’s non-work-related sleep apnea made him too tired to work safely. Such limitations, however, were not applicable to Ziparo’s case. The court stated:

Contrary to the district court, we hold that complaints of stressful and distracting work conditions like Ziparo’s may well fall within the scope of “hazardous safety or security condition[s]” under § 20109(b)(1)(A). That is not to say that any railroad employee who tells her employer that she feels unable to perform her work safely due to stress and distraction is protected under the statute; for example, an employee whose stress or distraction results from a turbulent personal life enjoys no protection from termination. But a jury, taking the facts in the light most favorable to the plaintiff, could find that is not what happened here. Ziparo complained about what he believed to be an unsafe environment caused by the improper conduct of CSX’s employees, which was well within CSX’s power to control. Indeed, there is evidence in the record that, after investigating Ziparo’s report, CSX put an end to the practices of which he complained. It is clearly for the factfinder at trial to determine whether Ziparo believed in good faith, as he has consistently asserted, that those practices were creating a genuine safety hazard. Section 20109(b)(1)(A) requires no more.

Id. at 29-30.

REFUSAL TO WORK UNDER HAZARDOUS CONDITIONS; REQUIREMENT TO NOTIFY THE RAILOARD CARRIER “WHERE POSSIBLE”; ARB AFFIRMS ALJ’S DETERMINATION THAT IT HAD NOT BEEN POSSIBLE FOR COMPLAINANT TO NOTIFY RESPONDENT THAT A ROLL-BY INSPECTION COULD NOT BE PERFORMED DUE TO THE CONDITIONS

In Laidler v. Grand Trunk Western Railroad Co., ARB No. 2021-0013, ALJ No. 2014-FRS-00099 (ARB Aug. 31, 2021) (per curiam), On March 7, 2013, Complainant filed a complaint with OSHA alleging that Respondent violated the FRSA by terminating his employment in retaliation for not performing a roll-by inspection due to hazardous conditions. The ARB remanded the first ALJ’s decision to reconsider whether it had been possible for Complainant to notify Respondent of his intention not to perform an on-the-ground roll-by inspection because of the hazardous terrain. A newly assigned ALJ on remand found, after a comprehensive review of the evidence, that it was not possible for Complainant to have given the notice under the circumstances. The ALJ on remand adopted the original ALJ’s remedies, which included an 18.6% increase upon any lost wages by Complainant and $100,000 in punitive damages.

The remand issue focused on 49 U.S.C. § 20109(b)(2), which protects an employee’s refusal to work under hazardous conditions. That provision includes a notification to the railroad condition—i.e., “…where possible, [the employee] has notified the railroad carrier of the existence of the hazardous condition and the intention not to perform further work . . . unless the condition is corrected immediately[.]” On appeal, Respondent argued that the ALJ had conflated the questions of--whether the urgency of the situation did not allow sufficient time to eliminate the danger without refusal—and whether the employee, where possible, notified the railroad carrier of the existence of the hazard. The ARB, however found that substantial evidence supported the ALJ’s determination that it was not possible for Complainant to notify the railroad carrier of the existence of the hazardous condition.

PROTECTED ACTIVITY; COURT GRANTS SUMMARY JUDGMENT AS TO PLAINTIFFS’ FRSA HAZARDOUS-WORK-CONDITION CLAIMS WHERE THE REPORTED INJURIES WERE NOT WORK RELATED; WHERE THERE WAS NO HAZARDOOUS WORK CONDITION BECAUSE DEFENDANT HAD NOT ASKED OR REQUIRED PLAINTIFFS TO WORK AFTER SUBMISSION OF THE INJURY REPORTS; AND WHERE DEFENDANTS HAD NOT REPORTED THEIR INJURIES AS HAZARDOUS SAFETY CONDITIONS

In Adkins v. CSX Transp., Inc., No., 18-0321 (S.D. W.V. Aug. 10, 2021) (2021 U.S. Dist. LEXIS 149351; 2021 WL 3518529), a group of 56 CSX Transportation workers filed FRSA claims (six of whom had settled with Defendants by the time of the court’s August 10, 2021 memorandum decision). CSX became suspicious that Plaintiffs were involved with two chiropractors in submitting fraudulent Certificate of Illness and Injury (“COII”) reports. After a formal investigation, CSX terminated the employment of all of the Plaintiffs. Plaintiffs filed FRSA complaints with OSHA, and later filed a lawsuit alleging violation of the FRSA and other federal and state laws. The instant memorandum decision addressed Plaintiff’s FRSA complaints.

Off-Work Injuries

Plaintiffs argued that Defendant had not attempted to determine whether their injuries and treatment were work related, and thus Defendants had no basis to conclude that they were not. The court rejected this argument because Plaintiffs had self-reported off-work injuries in the COII forms--and because Plaintiffs, who carried the burden of proof to establish protected activity, had not presented any evidence that their injuries were caused by their work.

Hazardous Work Conditions: § 20109(b)

Plaintiffs alleged that Defendants violated the FRSA, 49 U.S.C. § 20109(b)(1)(A)-(B), by terminating them for reporting a hazardous safety condition and/or refusing to work based on their physical impairments. The court dismissed these claims for three reasons: This provision does not extend to off-duty infirmities or injuries (as held by numerous courts); the absence of a hazardous safety condition because, once Plaintiffs submitted the COIIs, Defendant did not ask for require any of the Plaintiffs to work; and Plaintiffs had not reported to Defendant their injuries as hazardous safety conditions.

PROTECTED ACTIVITY UNDER SECTION 20109(b)(1) OF THE FRSA; COMMUNICATION OF SUCH TO RESPONDENT MUST MEET THE NOTICE OR REPORTING REQUIREMENTS OF FRSA SECTION 20109(b)(1)

We reiterate our conclusion in Cieslicki that Section 20109(b)(1) of the FRSA “does not require that a condition be ‘work-related’ or state that the condition cannot relate to an employee’s physical condition.” Consistent with this conclusion, we hold that an employee impaired by an illness can create a hazardous safety or security condition under the FRSA. Depending on the circumstances of the particular case, a worker impaired by illness, like a worker impaired by alcohol or like a faulty or unsafe piece of equipment or line of track, could present a danger or threat of serious harm or injury to the worker, to his or her colleagues, and to the public. To hold otherwise could implicitly incentivize impaired employees to work despite the risk of causing great harm or injury to themselves or those around them, for fear of discipline. In light of Section 20109(b)(1)’s broad and general language, the overarching purposes of the FRSA, and our precedent in the same and analogous contexts, we hold that reporting, or refusing to work because of, a personal, non-work related illness may constitute protected activity under Section 20109(b)(1) of the FRSA.

Although there is the possibility that a personal, non-work related illness could, under certain circumstances, create a hazardous safety or security condition, we do not opine on whether Ingrodi’s illness created such a condition. Additionally, we do not opine on whether Ingrodi reported and/or notified CSX of the purported hazardous safety or security condition, as required by the FRSA.

Based on the current record, the evidence shows that Ingrodi initially communicated that he was sick and could not work, and that the treating emergency room doctor ordered him to remain off work for two days (but only later communicated that he explicitly believed his illness prevented him from safely conducting a train). Accordingly, we remand the matter to the ALJ to further develop the record, as reasonably necessary, and determine whether Ingrodi’s nonwork-related illness, and concomitant refusal to work, constituted a “hazardous safety or security condition” that is protected activity under FRSA. In reaching this determination, the ALJ should consider evidence concerning, for example, the nature and extent of Ingrodi’s illness and symptoms, the nature of the work he was expected or could have performed, and the impact his illness and symptoms would have had on his ability to perform that work.

In addition, the ALJ must determine on remand whether Ingrodi’s communication to CSX satisfied the notice or reporting requirements of FRSA Section 20109(b)(1). These issues present factual or legal questions that should be resolved by the ALJ on remand in light of our holding in Cieslicki.

Id. at -9 (footnotes omitted).

PROTECTED ACTIVITY; COURT DENIES SUMMARY JUDGMENT BASED ON DEFENDANT’S CONTENTION THAT PLAINTIFF WAS MERELY DOING HIS JOB; “JOB-DUTIES EXCEPTION” IS NOT SUPPORTED BY FRSA’S TEXT

PROTECTED ACTIVITY; COURT DENIES SUMMARY JUDGMENT BASED ON DEFENDANT’S CONTENTION THAT TAKING TRACKS OUT OF SERVICE WAS NOT A REFUSAL; FACT ISSUE EXISTED ON WHETHER PLAINTIFF HAD BEEN DISCOURAGED OR IMPLICTLY ORDERED NOT TO TAKE TRACKS OF OUT OF SERVICE

PROTECTED ACTIVITY; COURT DENIES SUMMARY JUDGMENT BASED ON DEFENDANT’S CONTENTION THAT PLAINTIFF HAD NOT SHOWN THAT FAILURE TO TAKE TRACKS OUT OF SERVICE PRESENTED IMMINENT DANGER OF DEATH OR SERIOUS INJURY; PLAINTIFF’S TESTIMONY ON THIS POINT WAS A QUESTION FOR THE JURY

Defendant next argued that Plaintiff could not show protected activity because he had not refused to follow an implicit or explicit order. The court, however, found that Plaintiff had brought forth sufficient competent evidence to show a fact issue on whether he had been discouraged or “implicitly ordered” on occasions not to take tracks out of service.

Defendant next argued that Plaintiff could not show protected activity because he had not shown that conditions presented an imminent danger of death or serious injury if the tracks were not taken out of service. The court, however, found that Plaintiff’s deposition testimony showed that he had learned through his experience that derailments could easily lead to the death of railroad employees or the spilling of hazardous material. The court determined that the credibility of such testimony is a question for the jury.

PROTECTED ACTIVITY; COMPLAINANT’S OBJECTION TO BEING REQUIRED TO STAY ON DUTY BEYOND HIS ALLOWED HOURS OF DUTY TO WRITE A REPORT ON A TRAIN DELAY FOUND TO BE PROTECTED ACTIVITY UNDER THE FRSA; THE FRSA DOES NOT REQUIRE THAT COMPLAINANT BE ENGAGED IN A SAFETY-RELATED TASK

In Lancaster v. Norfolk Southern Railway Co., ARB No. 2019-0048, ALJ No. 2018-FRS-00032 (ARB Feb. 25, 2021), Complainant was a locomotive engineer. Complainant and a co-worker were required by Respondent to write a statement about a train delay. Complainant did not immediately provide the statement on the grounds that he would be over his hours of service. After speaking with his union representative, Complainant provided the statement. Complainant was then suspended without pay, pending investigatory investigation. Complainant was later assessed a 40-day suspension, without pay. Complainant then filed a FRSA complaint. The ALJ’s determined that Respondent retaliated against Complainant in violation of the FRSA.

On appeal, Respondent argued that Complainant had not engaged in protected activity. The ALJ had concluded that Complainant’s disclosure and initial refusal to fill out a statement was protected activity because he made a lawful, good faith disclosure about Hours of Service Act violation. In this regard, the ALJ had found Complainant’s testimony to be credible and corroborated by his co-worker; that Complainant’s supervisor had actual knowledge that Complainant and his co-worker would be in violation of the Hours of Service Act if they were on duty past 4:30 p.m. that day and the supervisor had a duty to ensure that both employees were off duty by that time; and that the statement would have taken longer to write than the available 15 minutes to avoid the hours of service violation. The ARB found that the ALJ’s findings of fact were supported by substantial evidence. The ARB stated:

Complainant’s disclosure fits squarely within the bounds of what the FRSA protects – Complainant objectively and reasonably believed there was an imminent violation of federal railroad safety law. The FRSA does not require that an employee is engaged in a “safety-related task” as Respondent asserts. The FRSA prohibits railroad employers from taking unfavorable personnel actions against employees for reporting safety issues that are illegal or dangerous. This purpose applies equally whether there is a regulatory violation or a hazardous safety condition that relates to the equipment, or the condition of a person who is working on the equipment.

Slip op. at 6-7 (footnote omitted).

The ARB, concluded with the following observations:

Concerning both subparts (a) and (b) of 49 U.S.C. §20109, the ALJ relied on an inaccurate premise for support. Contrary to what the ALJ and the district court in the Southern District of New York (in Lockhart) contend, our ruling does not mean that an employee who engages in protected activity by refusing to work because of his impairment may not be disciplined. If an employer decides to discipline an employee because the employee voluntarily chose to become impaired at a time when the employee knew that he should not be impaired (because he was on call, or because it is illegal), then the employer is not prohibited by the FRSA from taking disciplinary action.

Thus, following the plain language of the statute to allow for such reports if a violation of a rule is implicated, or a hazardous safety or security conditions exists, does not lead to “absurd results.” Indeed, an absurd result would occur if an employee who is not on call, drinks alcoholic beverages (as adults of legal age are allowed to do), gets called to work unexpectedly, and then has to choose between working in an impaired state on the railroad (violating federal law or causing a hazardous safety or security condition), or getting fired for indicating that he cannot safely report for duty.

Id. at 9.

PROTECTED ACTIVITY; RAILROAD’S COMPLIANCE WITH HOURS OF SERVICE ACT AND FEDERAL RAIL SAFETY IMPROVEMENT ACT DID NOT PREEMPT OR PRECLUDE PROTECTION OF PLAINTIFF’S RAISING OF FATIGUE RELATED CONCERNS AND REQUEST FOR PREDICTIVE SCHEDULING

PROTECTED ACTIVITY; REPORT OF PERSONAL FATIGUE CAUSED BY SLEEP APNEA IS NOT A PROTECTED REPORT ABOUT RAILROAD’S SCHEDULING PRACTICES; HOWEVER, FILING OF SAFETY FORMS ASKING FOR PREDICTIVE SCHEDULING AND DISCUSSING FATIGUE IS PROTECTED

BNSF contended that Plaintiff’s fatigue-related complaints were not FRSA protected activity because BNSF’s policies and procedures were consistent with the Hours of Service Act and the Federal Rail Safety Improvement Act. BNSF argued that Plaintiff’s claims were thus preempted for precluded. The court rejected this contention:

The Hours of Service Act and the Federal Rail Safety Improvement Act demonstrate Congress’s awareness of the interplay between fatigue and rail safety. They do not crowd the FRSA, which provides for an additional mechanism to increase safety. The FRSA protects whistleblowers, some of whom may report fatigue; the Hours of Service Act sets forth minimum industry-wide standards to limit fatigue; and the Federal Rail Safety Improvement Act requires railroads to work with the executive branch to continue to find ways to decrease fatigue. Indeed, the FRSA explicitly protects employees who “accurately report hours on duty” pursuant to the Hours of Service Act. 49 U.S.C. § 20109(a)(7). The acts “are complementary and have separate scopes and purposes,” and there is no issue of preclusion. POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 118 (2014).

Slip op. at 16-16.

[Editor’s note: The district court referred to this ruling in a similar case, Vasquez v. BNSF Ry., No. 18-cv- 164 (D. Mon. May 29, 2020) (2020 U.S. Dist. LEXIS 94593), slip op. at 15.]

BNSF also argued that Plaintiff did not engage in a protected activity when he filled out safety reports regarding BNSF’s scheduling practices and fatigue because Plaintiff’s own “personal fatigue and non-work-related sleep apnea” are not “hazardous safety conditions” within the meaning of the FRSA. The court stated that it agreed “that the FRSA is indifferent to reports of allegedly unsafe conditions that fall outside a railroad’s control.” Id. at 16 (citations omitted). Thus, to the extent that Plaintiff reported that his sleep apnea made him too tired to safely perform his work, the report was not protected activity. The court acknowledged that BNSF’s scheduling practices may have worsened Plaintiff’s fatigue, but stated that it did not logically follow that Plaintiff reported BNSF’s scheduling practices when he asserted that he was physically tired and wanted to nap. The court, however, found that some of Plaintiff’s reports had targeted BNSF’s scheduling practices and were protected activity (such as submission of “Safety Issue Resolution Process”(SIRP) forms requesting predictive scheduling and discussing fatigue).

PROTECTED ACTIVITY; COMPLAINT DID NOT REPORT OF CREW FATIGUE MERELY BY SUBMITTING OF WAGE CLAIM FORMS REQUESTING ADDITIONAL PAY, OR BY SUBMITTING “FATIGUE MONITOR” TO UNION AND UNKNOWN TO RESPONDENT’S DECISIONMAKERS; COURT REJECTS, HOWEVER, BNSF THEORY THAT FRSA IS INDIFFERENT TO COMPLAINTS REGARDING CREW FATIGUE

In Vasquez v. BNSF Ry., No. 18-cv-164 (D. Mon. May 29, 2020) (2020 U.S. Dist. LEXIS 94593), the court granted summary judgment dismissing an allegation that Plaintiff was terminated for reporting crew fatigue. The court noted as a threshold matter that it rejected BNSF’s theory that the FRSA is indifferent to complaints regarding crew fatigue, citing the court’s own recent decision in Jones v. BNSF Ry. Co., 18-cv-146 (D. Mont. Apr. 29, 2020) (2020 U.S. Dist. LEXIS 75585; 2020 WL 2062180). In the instant case, however, Plaintiff based this count on the submission of wage claim forms, requesting additional pay consistent with the CBA. The court stated: “While he did claim to have been called into service early and out of rotation, he never claimed to have been fatigued nor did he raise any safety concerns. No reasonable factfinder could conclude that Vasquez reported a hazardous safety condition when he asked for additional pay and neither requested a change in BNSF policy to protect safety nor suggested that he or any other crewmember had been fatigued.” Slip op. at 16. The court noted that Plaintiff appeared to also allege that he was fired for submitting to his union a “fatigue monitor.” The court noted that these forms are not submitted to BNSF, and there was no factual support for finding that decisionmakers were aware of Plaintiff’s submission of a fatigue monitor, let alone that it was a contributing factor in the termination decision.

PROTECTED ACTIVITY; MERE REQUEST THAT A SAFETY FEATURE BE ENGAGED IS NOT PROTECTED ACTIVITY; COURT REJECTS, HOWEVER, BNSF’S POSITION THAT AN FRSA RETALIATION COMPLAINT COULD NOT BE MAINTAINED BECAUSE FEDERAL LAW DID NOT YET MANDATE ENGAGEMENT OF THAT SAFETY FEATURE — RATHER A GOOD FAITH REQUEST THAT A RAILROAD IMPROVE ITS SAFETY POLICIES IS SUBJECT TO PROTECTION

In Vasquez v. BNSF Ry., No. 18-cv-164 (D. Mon. May 29, 2020) (2020 U.S. Dist. LEXIS 94593), Plaintiff, an engineer, noted before departure that the train should travel no faster than 45 mph due to its load. The train’s Positive Train Control (PTC), which limits train speed, was set to 55 mph. The conductor indicated to dispatch that he and Plaintiff were having trouble setting the PTC. Dispatch instructed that they could leave without engaging PTC. Although the conductor apparently agreed initially, Plaintiff remained concerned, and the conductor and Plaintiff attempted to reengage dispatch several times without success. They finally left the yard without PTC engaged. During the run the train failed to stop before a red signal. In an investigation of the incident, Plaintiff asserted that the incident would not have occurred if the PTC had been engaged or he had been working with an experienced, qualified conductor. Although later reinstated, this was Plaintiff’s second serious discipline, and he was terminated for a period without pay.

Plaintiff filed a FRSA retaliation complaint. One of his claims was that he was terminated in retaliation for complaining in regard to the PTC on the train he was operating. The court, however, determined that Plaintiff never made a complaint, but had merely attempted to reset the PTC through the dispatcher. That conversation (made through the conductor) merely reported the trouble resetting the PTC, and obtained the dispatcher’s OK to “cut out PTC,” to which the conductor replied that he understood that it was OK to cut it. Although Plaintiff attempted unsuccessfully four or five times thereafter to contact the dispatcher through the conductor about the PTC, the court found that the attempt could not be perceived as a safety complaint.

The court further stated: “Even if Vasquez had asked dispatch to initiate PTC (and the undisputed facts establish that he did not), an employee does not "report[], in good faith, a hazardous safety or security condition" by merely requesting that a safety feature be engaged. 49 U.S.C. § 42121(b)(1)(A).” Slip op. at 17-18.

The court, however, noted a disagreement with BNSF on a point of law. BNSF argued that the complaint regarding PTC made in November 2016 necessarily fails because at that time BNSF was not required to have PTC activated on the train. The court acknowledged that Federal law had not yet imposed such a requirement, and that Plaintiff testified during his deposition that he was able to safely operate trains before PTC became available. Nonetheless, the court held that “a FRSA claim does not, as a matter of law, fail whenever the complained-of activity is consistent with federal law. … Where an employee requests, in good faith, a change in railroad policies to improve safety, that employee is entitled to protection under the FRSA. 49 U.S.C. § 20109(b)(1)(A).” Id. at 17, citing the court’s own recent decision in Jones v. BNSF Ry. Co., 18-cv-146 (D. Mont. Apr. 29, 2020) (2020 U.S. Dist. LEXIS 75585; 2020 WL 2062180).

FRSA ANTI-RETALIATION PROVISION DOES NOT PROHIBIT INJUNCTIVE RELIEF PURSUANT TO THE RAILWAY LABOR ACT AND AN EXCEPTION TO THE NORRIS-LAGUARDIA ACT TO PREVENT A THREATENED LABOR STOPPAGE RELATING TO THE ADEQUACY OF A RAILROAD’S COVID-19 RESPONSE

ASSUMING ARGUENDO THAT THE FRSA ANTI-RETALIATION PROVISION APPLIES TO UNION WORK STOPPAGES, COVID-19 FOUND NOT TO BE A WORK-SPECIFIC HAZARDOUS SAFETY CONDITION UNDER § 20109(b)(2), NOR AN IMMINENT DANGER AS PERCEIVED BY A REASONABLE PERSON UNDER THE FACTS OF THE CASE

In Union Pacific Railroad Co. v. Brotherhood of Maintenance of Way Employes, No. 20-cv-516 (D. Neb. Jan. 7, 2021), Union Pacific was granted a preliminary injunction over the union’s threat to strike over the adequacy of the railroad’s COVID-19 response.

One of the union’s arguments was that injunctive relief under the Railway Labor Act and an exception to the Norris-LaGuardia Act was prohibited by the anti-retaliation provision of the FRSA at 49 U.S.C. § 20109. The union argued that the FRSA “protects its proposed strike because COVID-19 presents a hazardous condition which Union Pacific has failed to adequately address” and that “the FRSA protects the situation of a threatened mass labor strike like that in the present case.” Slip op. at 20. The court disagreed, finding that the FRSA “is an anti-retaliation statute applicable when employees are unable to work due to hazards on the job” but that “[i]ts protections do not mention labor unions or mass labor strikes.” Id. at 20-21.

The court further found, that even if the FRSA provision applies to threatened labor stoppages, the statutory requirements were not satisfied under the facts of the case.

First, the COVID-19 pandemic does not present a “hazardous safety or security condition related to the performance of the employee’s duties.” 49 U.S.C. § 20109(b)(2). The pandemic is not a work-specific safety concern for the BMWED employees under the FRSA; that is, it is not a hazardous condition “related to the performance” of BMWED employees’ duties. 49 U.S.C. § 20109(b)(2) (emphasis added). Instead, the pandemic is, unfortunately, a worldwide and widespread problem confronting not just the BMWED employees, but individuals of all walks of life. Thus, it does not constitute a condition “related to the performance of the employee’s duties” for purposes of the FRSA. See, e.g., Stokes v. Se. Pennsylvania Transportation Auth., 657 F. App'x 79, 82 (3d Cir. 2016) (finding the FRSA did not apply where “the safety risk that Stokes identified was unconnected to railroad safety, and thus her refusal to appear due to a non-work-related risk to her was not covered by the FRSA.”); Ziparo v. CSX Transportation, Inc., 443 F. Supp. 3d 276, 297 (N.D.N.Y. 2020) (“‘Hazardous safety or security conditions’ have generally been found to be physical conditions that are within the control of the rail carrier employer; circumstances outside of the carrier’s control and non-work related conditions are not included.”).

BMWED cites Kurec v. CSX Transportation, Inc., No. 518CV0670LEKTWD, 2020 WL 6484056 (N.D.N.Y. Nov. 4, 2020) for the proposition that the FRSA’s plain language does not require the hazardous safety or security condition to be under the railroad’s control. . . . In Kurec, the railroad employee, an engineer, refused to report to work when he was intoxicated. 2020 WL 6484056, at *6. Thus, his altered state was one “related to the performance” of his job. In contrast, COVID-19 has no unique impact on BMWED employees’ job performance and thus is neither under Union Pacific’s control nor “related to the performance of the employee’s duties.” 49 U.S.C. § 20109(b)(2). Furthermore, the Kurec court cited the Stokes decision favorably for the proposition that a claim under subsection (b)(1)(B) “requires the hazardous condition to be ‘related to the performance of the employee’s duties.’” Kurec, 2020 WL at 12, n.15 (quoting 49 U.S.C. §§ 20109(b)(1)(B)).

Secondly, a reasonable individual under the circumstances would not conclude that there is “an imminent danger of death or serious injury” presented by the current situation. 49 U.S.C. § 20109(b)(2). First, Union Pacific has implemented certain safety measures for the protection of its workers starting in the early days of the pandemic in March 2020. These measures included complying with CDC guidance, . . . voluntarily providing fourteen days’ paid leave for those employees directed to quarantine for a work-related exposure, instituting policies requiring social distancing and face coverings, regular cleaning of equipment, and providing hand sanitizer and wipes to employees,. . . . The evidence also shows the parties have been in regular communication regarding evolving COVID-19 protocols since March 2020. . . . BMWED claims Union Pacific’s response has been inadequate and that the recent increase in COVID-19 cases combined with the mutation of the virus into a more transmissible strain make the safety concern urgent. . . . In light of Union Pacific’s already-implemented safety measures, on-going dialogue between the parties, and continually-evolving safety procedures, the Court finds there is no “imminent danger of death or serious injury” as defined by 49 U.S.C. § 20109(b)(2).

Lastly, Union Pacific’s COVID-19 response itself does not constitute a “hazardous safety or security condition” as BMWED argues. While BMWED takes issue with certain aspects of Union Pacific’s COVID-19 protocol, it does not dispute that Union Pacific has, in fact, implemented numerous safety measures, including some requested by BMWED. . . . Furthermore, witnesses testified that Union Pacific has continued to improve its response to the pandemic, including securing higher-quality masks, locating hand sanitizer when it was in short supply, and updating social-distancing requirements as CDC guidance has evolved. BMWED seeks additional safety precautions that are either of marginal benefit because of the measures already in place or, as in the case of on-site COVID-19 testing, unworkable. Furthermore, as set forth above, BMWED’s primary demands are related to pay and leave time, not measures relating to safety and health. The differences illustrated by the evidence presented over the level of protections needed and the semantics of implementing protections and paying workers during an unprecedented health situation do not rise to the level of “hazardous” contemplated by the FRSA.

Accordingly, the Court finds the FRSA does not apply to the dispute at hand. Rather, the RLA governs and, as set forth above, supports the issuance of the requested injunctive relief.

Id. at 21-24 (emphasis as in original) (footnotes omitted) (citations to court filings omitted).

FRSA ANTI-RETALIATION PROVISION DOES NOT PROHIBIT A TEMPORARY RESTRAINING ORDER PURSUANT TO THE RAILWAY LABOR ACT AND AN EXCEPTION TO THE NORRIS-LAGUARDIA ACT TO PREVENT A THREATENED LABOR STOPPAGE RELATING TO THE ADEQUACY OF A RAILROAD’S COVID-19 RESPONSE

In Union Pac. R.R. Co. v. Bhd. of Maint. of Way Employes Div. of the Int'l Bhd. of Teamsters, No. 20-cv-516 (D. Neb. Dec. 23, 2020) (2020 U.S. Dist. LEXIS 241874), Union Pacific was granted a temporary restraining order (TRO) over the union’s threat to strike over the adequacy of the railroad’s COVID-19 response. One of the union’s arguments was that a TRO under the Railway Labor Act and an exception to the Norris-LaGuardia Act was prohibited by the anti-retaliation provision of the FRSA at 49 U.S.C. § 20109.

The court rejected the union’s contention that the FRSA anti-retaliation provision exclusively governs the dispute before the court, and that it applies to protect a proposed strike because COVID-19 presents a hazardous condition which Union Pacific failed to adequately address.

The court noted that the FRSA provision applies when employees are unable to work due to hazards on the job, but that the provision does not mention labor unions or mass labor strikes. The court acknowledged that the union had pointed to a handful of decisions implying that the FRSA may protect labor strikes, but found that such decisions were either non-binding or dicta, and were not persuasive in light of the plain statutory language.

The court further found, that even if the FRSA provision applies, under the facts of the case, COVID-19 was not a covered safety risk:

However, even if the FRSA were to apply to threatened labor stoppages like the one at hand, the Court does not find the statutory requirements would be satisfied. First, the COVID-19 pandemic does not present a “hazardous safety or security condition related to the performance of the employee’s duties.” 49 U.S.C. § 20109(b)(2). The pandemic is not a work-specific safety concern for the BMWED employees under the FRSA. Instead, the pandemic is, unfortunately, a worldwide and widespread problem confronting not just the BMWED employees, but individuals of all walks of life. Thus, it does not constitute a condition “related to the performance of the employee’s duties” for purposes of the FRSA. See, e.g., Stokes v. Se. Pennsylvania Transportation Auth., 657 F. App'x 79, 82 (3d Cir. 2016) (finding the FRSA did not apply where “the safety risk that Stokes identified was unconnected to railroad safety, and thus her refusal to appear due to a non-work-related risk to her was not covered by the FRSA.”); Ziparo v. CSX Transportation, Inc., 443 F. Supp. 3d 276, 297 (N.D.N.Y. 2020) (“‘Hazardous safety or security conditions’ have generally been found to be physical conditions that are within the control of the rail carrier employer; circumstances outside of the carrier’s control and non-work related conditions are not included.”).

Secondly, a reasonable individual under the circumstances would not conclude that there is “an imminent danger of death or serious injury” presented by the current situation. 49 U.S.C. § 20109(b)(2) (emphasis added). First, Union Pacific has implemented certain safety measures for the protection of its workers starting in the early days of the pandemic in March 2020. These measures included complying with CDC guidance, … providing fourteen days’ paid leave for those employees directed to quarantine for a work-related exposure, instituting policies requiring social distancing and face coverings, regular cleaning of equipment, and providing hand sanitizer and wipes to employees, … . The evidence also shows the parties have been in regular communication regarding evolving COVID-19 protocols since March 2020. … BMWED claims it is Union Pacific’s lack of a response and accommodations that has prompted it to resort to a threatened strike under emergent situations, … but it has not provided a persuasive reason why a pandemic now in its tenth month is suddenly imminent despite already-implemented safety measures, on-going dialogue between the parties, and continually-evolving safety procedures.

Lastly, Union Pacific’s COVID-19 response itself does not constitute a “hazardous safety or security condition” as BMWED argues. While BMWED takes issue with certain aspects of Union Pacific’s COVID-19 protocol, it does not dispute that Union Pacific has, in fact, implemented numerous safety measures, including some requested by BMWED. …. Rather, BMWED seeks additional safety precautions and pay provisions. While a complete absence of a response to the pandemic may have constituted a “hazardous safety or security condition” under the FRSA, differences over the level of protections needed and the semantics of implementing protections and paying workers during an unprecedented health situation do not rise to the level of “hazardous” contemplated by the FRSA.

Accordingly, the Court finds the FRSA does not apply to the dispute at hand. Rather, the RLA governs and, as set forth above, supports the issuance of the requested injunctive relief.

Slip op. at 15-17 (emphasis as in original) (citations to court filings omitted).

PROTECTED ACTIVITY UNDER THE FRSA; AN EMPLOYEE’S MEDICAL CONDITION SUSTAINED OUTSIDE THE SCOPE OF EMPLOYMENT IS NOT A HAZARDOUS CONDITION, AND THUS PLAINTIFF'S REPORT OF ALLERGIES AND HIS REFUSAL TO WORK WHEN EXPERIENCING THE SYMPTOMS OF ALLERGIES WAS NOT FRSA-PROTECTED ACTIVITY

In Laveing v. Norfolk Southern Railway Co., No. 19-cv-1095 (W.D. Pa. Sept. 28, 2020) (2020 WL 5760352), the District Court adopted the Magistrate Judge’s Report and Recommendation in Laveing v. Norfolk Southern Railway Co., No. 19-cv-1095 (W.D. Pa. Aug. 21, 2020) (2020 WL 5768730) dismissing Plaintiff’s FRSA amended complaint. According to the Magistrate Judge’s decision, Plaintiff was a train conductor who suffered several seasonal allergies that required both prescription and non-prescription medications, which allegedly caused drowsiness and interfered with his ability to concentrate. Plaintiff would “call off” work when he felt too ill to work. Plaintiff was dismissed from employment due to excessive absences. Plaintiff claimed that “he was disciplined in retaliation for reporting an unsafe condition, namely, his own allergies, in violation of 49 U.S.C. § 20109(b)(1)(A),” and ”for engaging in a protected refusal to work, in violation of 49 U.S.C. § 20109(b)(1)(B).” Slip op. at 2. Defendant contended that these claims failed as a matter of law because Plaintiff’s “personal illness does not constitute a hazardous safety or security condition within the meaning of the FRSA and therefore neither Plaintiff's report of allergies nor his refusal to work when experiencing the symptoms of allergies is FRSA-protected activity.” Id. at 4. The Magistrate Judge determined that this issue had been conclusively decided by the Third Circuit Court of Appeals:

   Here, Plaintiff’s side effects from taking medications to treat his severe seasonal allergies is not a hazardous condition under the FRSA, as it is a non-work-related event, has no bearing on the operation of a railroad and thus reporting of his own medical condition and refusal to appear to work is not covered under the FRSA. This is especially so when faced twice with this issue, the Court of Appeals for the Third Circuit rejected the argument that employees suffering non-work-related medical conditions who report or refuse to work are covered under the FRSA. Port Auth. Trans-Hudson Corp., 776 F.3d at 166; Stokes, 657 F. App'x at 82.

   While Plaintiff argues that Norfolk had a policy requiring employees to not report to work when their ability to work safely is impaired by a medical condition or associated medication and that policy makes his reporting and refusal to work protected under the FRSA, he cites to no legal authority that a company policy expands legislation or overturns jurisprudence. The authority on this issue is settled: An employee’s medical condition sustained outside the scope of employment is not a hazardous condition under the FRSA.

   Accordingly, it is respectfully recommended that Norfolk’s motion to dismiss be granted and Count II of Plaintiff’s amended complaint related to his FRSA claim be dismissed with prejudice.

Id. at 5.

PROTECTED ACTIVITY; FRCP 12(b)(6) MOTION TO DISMISS GRANTED WHERE SUBJECTIVELY AND OBJECTIVELY REASONABLE STANDARD NOT PLAUSIBLY PLEADED; PLAINTIFF DID NOT EXPLAIN WHY HIS ADMONISHMENT OF A CO-WORKER FOR UNSANITARY CLEANING METHODS AMOUNTED TO “A HAZARDOUS SAFETY OR SECURITY CONDITION” WITHIN THE MEANING OF THE FRSA

In Williams v. Metro-North R.R., Nos. 17-CV-3092, 17-CV-9167, 18-CV-7793, 17-CV-7758, 18-CV-8350 (S.D. N.Y. Mar. 27, 2020) (2020 U.S. Dist. LEXIS 53914) (Opinion and Order), Plaintiff, who was a coach cleaner for Metro-North, filed pro se a series of actions, one count of which was a FRSA retaliation claim.

The court granted Defendants’ FRCP 12(b)(6) motion to dismiss the FRSA count on the ground that Plaintiff had not plausibly alleged facts suggesting that “a hazardous safety or security condition” existed or that he reported such a condition. The court explained: “On the contrary, Plaintiff claims only that he admonished [a co-worker] for improperly cleaning a bloody tampon. . . . While an improperly cleaned tampon may be unsanitary, Plaintiff does not explain why it would be reasonable for him to believe that [the co-worker’s] conduct amounted to ’a hazardous safety or security condition’ within the meaning of the FRSA. See Ziparo v. CSX Transp., Inc., No. 17-CV-708, 2020 WL 1140663, at *17-18 (N.D.N.Y. Mar. 9, 2020) (requiring that a plaintiff’s good faith belief in the existence of a safety hazard be ’objectively reasonable’); March v. Metro-North R.R. Co., 369 F. Supp. 3d 525, 533 (S.D.N.Y. 2019) (same). On the contrary, cleaning such materials appears to be precisely within the purview of Plaintiff’s role as a car cleaner.” The dismissal was without prejudice to file an amended complaint to correct the deficiencies.

PROTECTED ACTIVITY; PLAINTIFF’S SUBJECTIVE REACTION TO CONDUCT THAT WAS OTHERWISE NOT SAFETY RELATED

[Editor's Note: Caution about this case note -- The Second Circuit Court of Appeals later reversed and remanded, finding that the District Court erred in requiring an objectively reasonable belief under § 20109(b)(1)(A), and in finding that only physical conditions subject to the railroad’s control could constitute such a “hazardous safety or security condition.” See Ziparo v. CSX Transportation, Inc., No. 20-1196 (2d Cir. Sept. 24, 2021) (2021 U.S. App. LEXIS 28941; 2021 WL 4343290)].

In Ziparo v. CSX Transp., Inc., No. 17-cv-708 (N.D. N.Y. Mar. 9, 2020) (2020 U.S. Dist. LEXIS 39908), Plaintiff, a train conductor, asserted that Defendant took various adverse actions against him in violation of the FRSA in retaliation for complaining about supervisors’ orders to falsify information about departure time, arrival time, and the completeness of his work into Defendant’s onboard electronic system in order to improve their chances of bonuses. The court found that Defendant’s Onboard Work Order (“OBWO”) devices were used to enable customers to track their deliveries, and that OBWO was not safety equipment. Plaintiff’s assertion was essentially that he and other employees were being harassed about the OBWO entries, and that such harassment was a safety issue because it made employees unfocused and preoccupied.

The court first found that there was no admissible evidence that other employees were affected in the manner alleged. Thus, the focus was on Plaintiff’s specific situation. The court noted that even if an employee reasonably or honestly believes that the condition was unlawful, he must still show that it was a safety or security related concern. In other words, it must have been subjectively and objectively reasonable for Plaintiff to believe that the supervisor’s entreaties to falsify data constituted a “hazardous safety or security condition.”

The court stated that such conditions “have generally been found to be physical conditions that are within the control of the rail carrier employer; circumstances outside of the carrier’s control and non-work related conditions are not included.” Slip op. at 35 (citations omitted). The court found no federal court or ARB decisions “in which a plaintiff’s subjective reaction to conduct that is otherwise not safety-related, without more, was sufficient to establish a ‘hazardous safety or security condition.’” Id. at 36. Here, even if the underlying condition of the supervisors’ harassment was work-related, “Defendant had no control over Plaintiff’s reaction to that condition, and it was that reaction (rather than the condition itself) that caused the alleged ‘hazardous safety and security condition’. . . . Id. The court thus found as a matter of law that “the alleged condition constituted a ‘hazardous safety or security condition’ within the scope of FRSA.” Id.

The court noted that no admissible evidence had been presented that the purported harassing conduct occurred while Plaintiff was engaged in safety-sensitive railroad work. The court found inapposite cases cited by Plaintiff on hostile work environment or safety-implicated poor communications. Nor had Plaintiff alleged any physical violence or threats of such – rather the alleged threats causing stress were of insubordinate charges or termination.

In sum, the court found that Plaintiff failed to establish that he reported a “hazardous safety or security condition” for the purposes of 49 U.S.C. § 20109(b)(1)(A), and stated that it was not convinced that, “based on the admissible record evidence, a reasonable factfinder could conclude that Plaintiff’s belief that his distraction under the circumstances constituted a hazardous safety or security condition was objectively reasonable.” Id. at 40. The court noted that a proffered expert opinion that Plaintiff’s distraction was a hazardous safety or security condition was insufficient to raise a genuine issue of material fact because that opinion was inadmissible either as a legal conclusion or an issue of fact reserved to the jury.

PROTECTED ACTIVITY; WHERE ADMISSIBLE EVIDENCE OF RECORD DID NOT SHOW THAT PLAINTIFF’S COMPLAINTS ABOUT AN INABILITY TO LOCATE TRAIN CARS AT THE BEGINNING OF A SHIFT RELATED TO SAFETY AT THE TIME OF MAKING THOSE COMPLAINTS, SUCH COMPLAINTS WERE NOT PROTECTED ACTIVITY

[Editor's Note: Caution about this casenote -- The Second Circuit Court of Appeals later reversed and remanded, finding that the District Court erred in requiring an objectively reasonable belief under § 20109(b)(1)(A), and in finding that only physical conditions subject to the railroad’s control could constitute such a “hazardous safety or security condition.” See Ziparo v. CSX Transportation, Inc., No. 20-1196 (2d Cir. Sept. 24, 2021) (2021 U.S. App. LEXIS 28941; 2021 WL 4343290)].

In Ziparo v. CSX Transp., Inc., No. 17-cv-708 (N.D. N.Y. Mar. 9, 2020) (2020 U.S. Dist. LEXIS 39908), Plaintiff, a train conductor, asserted that Defendant took various adverse actions against him in violation of the FRSA in retaliation for complaining about supervisors’ orders to falsify information about departure time, arrival time, and the completeness of his work into Defendant’s onboard electronic system in order to improve their chances of bonuses. The court found that Defendant’s Onboard Work Order (“OBWO”) devices were used to enable customers to track their deliveries, and that OBWO was not safety equipment. Plaintiff averred that falsification of the entries “constituted a ‘hazardous safety or security condition’ based on the inability to track the precise location of railcars on the OBWO (including those containing hazardous materials).” Slip op. at 41-42.

The court found that Plaintiff had not, based on the admissible record evidence established that he believed he was reporting a hazardous safety condition as a result of the falsification of data specifically because of an inability to locate railcars. The court found that Plaintiff’s statement that “employees had to, at the beginning of a new shift, ‘figure out which cars had been placed and which had not’ as meaning that employees had difficulty locating railcars in the way that Plaintiff now suggests. . . .” Id. at 42-43. The court stated that “Plaintiff cannot rely on inferences he believes Defendant should have drawn to remedy his failure to report a certain basis for his belief of the existence of a ‘hazardous safety or security condition.’” Id. (citations omitted). The court found that a reasonable factfinder could not conclude based on the admissible evidence that Plaintiff had in mind an inability to locate railcars in the way he now asserts when he made his various complaints. Plaintiff was required to actually believe that it was a “hazardous safety or security condition” at the time he made his complaints.

PROTECTED ACTIVITY; RAISING OF CONCERN THAT FOREMAN LACKS PROPER QUALIFICATIONS; SUMMARY JUDGMENT GRANTED UNDER 20109(b)(1) WHERE PLAINTIFF’S EVIDENCE FAILED TO SHOW THAT THE CONCERN WAS OBJECTIVELY OR SUBJECTIVELY REASONABLE

The court found that the report about the foreman’s qualifications did not fall within 49 U.S.C § 20109(b)(1), as Plaintiff had “not provided a scintilla of evidence showing that [the foreman’s] leading the men onto the tracks that night was objectively—or even subjectively—a ‘hazardous safety or security condition’ under 49 U.S.C § 20109(b)(1)(A).” Slip op. at 18. The court found Plaintiff’s report to be objectively unreasonable because there was no evidence of record that the foreman was not qualified, and in fact, the evidence pointed to the contrary. The court found Plaintiff’s report also to be subjectively unreasonable as shown by the facts that Plaintiff did not refuse to work after the foreman gave the safety briefing, that Plaintiff’s own testimony was that because of the nature of the work being done—the foreman’s giving the briefing was not a huge risk factor, and that Plaintiff never brought a formal safety challenge about the foreman’s qualifications.

PROTECTED ACTIVITY; “JOB-DUTIES” EXCEPTION HAS NOT BEEN ADOPTED FOR FRSA CASES IN THE EIGHTH CIRCUIT

In Sanders v. Burlington Northern Santa Fe Ry., No. 17-cv-5106 (D. Minn. Oct. 24, 2019) (2019 U.S. Dist. LEXIS 184105; 2019 WL 5448309), the court noted that Defendant appeared to argue for the first time in a reply brief that an employee is not protected by the FRSA when performing job duties. The court rejected the argument citing Brisbois v. Soo Line R.R. Co., No. 15-CV-0570 (PJS/TNL), 2016 WL 7423387, at *4 (D. Minn. Dec. 22, 2016). The court stated that “‘job-duties’ exception has never been adopted by the Eighth Circuit, is not supported by the text of the statute, and would undermine Congress’s intent in enacting the FRSA.” Slip op. at 23, n.11.

PROTECTED ACTIVITY UNDER THE NATIONAL TRANSIT SYSTEMS SECURITY ACT IS NOT LIMITED TO MATTERS AFFECTING THE PUBLIC, BUT RATHER INCLUDES COMPLAINTS ABOUT WORKPLACE SAFETY

[Editor's note: The following casenote is of a decision under the NTSSA, but its reasoning appears to apply to FRSA cases as well.]

In Harte v. Metropolitan Transportation Authority, ARB No. 2017-0002, ALJ No. 2015-NTS-00002 (ARB Aug. 20, 2019) (per curiam), Complainant worked at Respondent’s fabrication shop. Respondent was a public transportation agency subject to the National Transit Systems Security Act (NTSSA). Complainant filed a complaint with a state agency about workplace safety hazards, and was present when state inspectors visited Respondent’s fabrication shop. During the inspection, there was a discussion about the safety and operability of a drill press. Respondent’s representative stated that the drill press was not operable. Disputing this statement, Complainant demonstrated that the drill press was operable by turning it on. Respondent’s representative then threatened to withdraw Complainant’s overtime and to assign him to a less favorable job. Supervisors blamed Complainant for negative changes to the workplace before his coworkers. Complainant filed a retaliation complaint with state agency, which referred the complaint to OSHA.

In a hearing before an ALJ, Respondent contended that the scope of protected activity under the NTSSA is limited to matters affecting the public. The ALJ rejected this contention, finding that “Congress did not evidence an intention to exclude employee—only safety hazards from the broad umbrella of safety threats under the NTSSA, as well as its sister act the Federal Rail Safety Act (FRSA), 49 U.S.C.A. § 20109, as amended by Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Pub. L. No. 110-53.” Slip op. at 3. Respondent challenged this ALJ finding on appeal. The Office of the Solicitor, appearing for the Assistant Secretary for OSHA as amicus curiae, joined Complainant in urging the ARB to affirm the ALJ’s finding. The ARB affirmed the ALJ’s finding, writing:

We note that the plain language of the NTSSA protects an employee who reports safety and security concerns and is not limited to actions involving public safety or threats of terrorism. Congress has other employer protection statutes that limit the application of whistleblower protections to the specific public concerns giving rise to a specific parent Act. But in this case, the NTSSA was modeled after the FRSA and shares its implementing regulations. The provisions relating to the FRSA have been interpreted to protect whistleblowers who complain about workplace safety, as have those relating to the NTSSA. As there is no express limiting language under this Act, and safety is referred to a number of times without reference or limitation to public security or terrorism, we reject Respondent’s contention that the NTSSA does not apply to protect safety concerns that do not reach to the general public.

Id. at 4 (footnotes omitted; footnote 4 identified the ERA, STAA and AIR21 as examples of statutes that limit their application to public concerns).

Good Faith / Reasonable Belief

PROTECTED ACTIVITY; COURT ADOPTS REASONING OF ZIPARO AND MONOHON THAT GOOD FAITH REPORT OF HAZARDOUS SAFETY OR SECURITY CONDITION UNDER 49 U.S.C. § 20109(b)(1)(A) NEEDS TO ONLY BE SHOWN TO HAVE BEEN SUBJECTIVELY REASONABLE

During a hearing on the motion, Plaintiff clarified that he was bringing claims under the FRSA, 49 U.S.C. §§ 20109(a)(4) and 20109(b)(1)(A). The protected activity for the (a)(4) claim was notification of Plaintiff’s manager of a personal illness consisting of feeling fatigued, exhausted, and disoriented. The basis for the (b)(1)(A) claim was “(1) the same report of a personal illness and (2) [Plaintiff’s refusal] to release a railcar that had not been properly tested after he reported to his supervisor that an airbrake test had not been conducted.” One of Defendant’s arguments was that Plaintiff failed to establish a genuine dispute of material fact that he reported a hazardous safety or security condition “in good faith,” as required by (b)(1)(A).

The court first addressed whether a FRSA Plaintiff only needs to prove subjective belief that the report was made in good faith, or both subjective and objective belief. The Fifth Circuit had not yet addressed this question, but the Second and Eighth Circuits had recently held that good faith need only be established subjectively under (b)(1)(A). Ziparo v. CSX Transp. Inc., 15 F.4th 153, 155 (2d Cir. 2021); Monohon v. BNSF Railway Co., No. 18-3346, 2021 WL 5114271, at *5-6 (8th Cir. Nov. 4, 2021). After reviewing those decisions and the statutory language, the court agreed that the employee need “only show that the employee honestly believed that they were reporting a hazardous safety or security condition. Good faith under (b)(1)(A), is therefore to be interpreted subjectively, and not objectively.” Slip op. at 17.

Turning to the instant case, the only remaining claim under (b)(1)(A) was that Plaintiff made a good faith report of a hazardous safety or security condition when he refused to release a railcar without first completing a necessary brake test. The court reviewed the evidence on the point, and found that it was sufficient to create genuine dispute of material fact.

PROTECTED ACTIVITY; SECOND CIRCUIT ADOPTS REASONABLE BELIEF STANDARD; SUCH BELIEF HAS SUBJECTIVE AND OBJECTIVE COMPONENTS; IN THE INSTANT CASE, PLAINTIFF FAILED TO RAISE A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER WALKWAYS ON WHICH HE REFUSED TO WALK WERE OBJECTIVELY UNSAFE

In Tompkins v. Metro-North Commuter R.R. Co., No. 18-3174 (2d Cir. Dec. 17, 2020) (2020 U.S. App. LEXIS 39624), the Second Circuit, conducting de novo review, affirmed the district court’s grant of summary judgment in favor of Defendant on Plaintiff’s FRSA retaliation claim under 49 U.S.C. § 20109(d)(3). Plaintiff alleged unlawful retaliation for his refusal to walk outdoors to another building in the railyard in allegedly unsafe winter conditions or, in the alternative, for his reporting those unsafe conditions to a foreman.

The Second Circuit adopted the standard from SOX cases that a complainant must show that he or she had a reasonable belief that Respondent’s conduct constituted a violation. This reasonable belief standard contains both subjective and objective 8 components. The court agreed with the district court that Plaintiff had not identified a genuine issue of material fact over whether the walkways were safe or over the reasonableness of his own assessment. Rather, Plaintiff simply asserted that other employees slipped as they walked. The court also found that even if an employee slipped, that did not necessarily show that the trip as a whole presented a hazardous condition. Although Plaintiff showed that he had a subjective belief that the walk was unsafe, the court found no serious dispute that the objective component had not been satisfied. Other employees had not refused the walk, and supervisors had determined that it was safe for the carmen to walk to the other building.

PROTECTED ACTIVITY; PLAINTIFF COULD NOT MEET SUBJECTIVE ELEMENT OF REASONABLE BELIEF STANDARD WHEN RESPONDING TO SUMMARY JUDGMENT MOTION WHERE ALL OF HIS STATEMENTS AND DEPOSITION TESTIMONY INDICATED THAT HE DID NOT BELIEVE AT THE TIME HE REPORTED TO EEO/DIVERSITY AN ALTERCATION BETWEEN TWO TRAINEES THAT A SAFETY ISSUE WAS IMPLICATED, WITH THE EXCEPTION OF ONE BRIEF PART OF HIS DEPOSITION TESTIMONY

In Caria v. Metro-North Commuter R.R., No. 16-CV-9501 (S.D. N.Y. Apr. 29, 2020) (2020 U.S. Dist. LEXIS 75218; 2020 WL 2061410), the court agreed with the conclusion of other district courts in the circuit that “under the FRSA, a plaintiff seeking to establish that he engaged in protected activity under § 20109(b) must demonstrate that he had a subjectively and objectively reasonable belief that he was reporting a safety condition.” Slip op. at 15. Applying that standard to the instant case, the court determined that Plaintiff, who was a supervisor, could not establish that he engaged in FRSA protected activity when he reported an altercation between trainees, because he admitted that he had reported the incident only to EEO/Diversity because he did not believe that the report involved a safety issue. Plaintiff had testified in a deposition, for example, that he had not been notified of the altercation until two days after it happened, and that at that time he did not consider it a safety issue. The record showed that it was only later that Plaintiff asserted in a single portion of his deposition testimony that, although there was no longer an imminent threat, it presented a safety issue for the future if left unaddressed. This subsequent testimony was at odds with many other statements making it clear that Plaintiff did not believe at the time of his report that the trainees’ altercation involved a safety issue. The court determined that the record left no genuine issue of fact that Plaintiff could not satisfy the requisite subjective component. In addition, the court noted that at the summary judgment stage, it is necessary to cite to more than one’s own deposition testimony to create a genuine issue of fact.

PROTECTED ACTIVITY; PLAINTIFF’S SUBJECTIVE REACTION TO CONDUCT THAT WAS OTHERWISE NOT SAFETY RELATED

[Editor's Note: Caution about this casenote -- The Second Circuit Court of Appeals later reversed and remanded, finding that the District Court erred in requiring an objectively reasonable belief under § 20109(b)(1)(A), and in finding that only physical conditions subject to the railroad’s control could constitute such a “hazardous safety or security condition.” See Ziparo v. CSX Transportation, Inc., No. 20-1196 (2d Cir. Sept. 24, 2021) (2021 U.S. App. LEXIS 28941; 2021 WL 4343290)].

PROTECTED ACTIVITY AND CONTRIBUTING FACTOR CAUSATION; EMPLOYEE ABSENCES DUE TO BEING PRESCRIBED NARCOTIC DRUGS; COURT FINDS THAT EMPLOYER DID NOT VIOLATE THE FRSA BY DISCIPLINING AN EMPLOYEE FOR ABSENCES WHERE THE EMPLOYEE FAILED TO SUBMIT MEDICAL CERTIFICATION FORMS REQUIRED BY EMPLOYER TO VERIFY APPROPRIATE USE OF MEDICAL LEAVE

In Lockhart v. MTA Long Island R.R., 949 F.3d 75 (2d Cir. Feb. 4, 2020) (No. 17-2725)(2020 U.S. App. LEXIS 3297), the Second Circuit affirmed the district court’s grant of MTA’s motion for summary judgment. Lockhart had filed a FRSA complaint alleging retaliation when MTA disciplined him for failing to report to work while under the influence of prescribed narcotic drugs. The district court had found that the discipline was based on Lockhart’s failure to present verifying documentation as required by MTA’s sick leave policy. The Second Circuit held that “[b]ecause the statute does not prevent employers from requesting reasonable documentation to assure themselves that employees’ absences are legitimate, we affirm.” Slip op. at 2.

The court did not reach the issue whether the FRSA covers off-duty maladies, because—assuming arguendo that it does—Lockhart failed to demonstrate that his absences, when unaccompanied by medical certification forms required by MTA to avoid a leave policy violation (“SLA-28 form”), were protected activity. The court stated:

    [N]owhere in the statute are employers prevented from using the common practice of requiring reasonable documentation to assure that an employee’s claimed medical absences are legitimate. Nor has appellant demonstrated that prohibiting such a practice only in cases involving railroad safety was a policy intended by the Congress. Because nothing in the text, structure, and purpose of the FRSA directs otherwise, the railroad was within its rights to seek verification of illnesses before excusing appellant’s absences as activity protected under the FRSA. Indeed, it would be rather adventurous to infer an FRSA requirement that a railroad take employees at their word that the reason for a failure to report to work was an easily verifiable doctor-prescribed mind-altering drug. The SLA-28 form, which requires a physician’s diagnosis, treatment plan, and signature, authenticates that information and does not overstep.

    There is also ample case law in other statutory contexts holding that employers have the right to request medical certification documenting an employee’s need for protected leave. For example, courts have held that employers may require employees to fill out standardized reasonable accommodation request forms in order to be entitled to accommodations (including sick leave) under the Americans with Disabilities Act. See, e.g., Pauling v. District of Columbia, 286 F. Supp. 3d 179, 211-12 (D.D.C. 2017); Lundquist v. Univ. of S.D. Sanford Sch. of Med., No. 09-CV-4147, 2011 WL 5326074, at *8 (D.S.D. Nov. 4, 2011); Kunamneni v. Locke, Nos. 1:09-CV-005 (JCC), 1:09-CV-450 (JCC), 2009 WL 5216858, at *11 (E.D. Va. Dec. 29, 2009). Similarly, the Family and Medical Leave Act specifies that employers may require employees to submit health care provider certifications connected to their leave. See 29 U.S.C. § 2613. Appellant has articulated no basis upon which to adopt a view that the FRSA affirmatively prohibits employers from imposing a similar requirement.

    Moreover, the SLA-28 form does not constitute a waiver of an employee’s rights prohibited by the FRSA and the form does not have to expressly reference the statute. Section 20109(c)(2) states that an employee may not be disciplined “for following orders or a treatment plan of a treating physician.” It is perfectly reasonable for a carrier to assure itself that an employee is indeed following a treating physician’s orders in missing work by verifying those orders through the submission of standardized health care provider certifications such as form SLA-13 28.

Id. at 10-12 (footnote omitted).

PROTECTED ACTIVITY; FRSA SECTION 20109(b)(1)(A) ONLY REQUIRES A SAFETY REPORT IN GOOD FAITH; THUS SUCH A REPORT ONLY NEEDS TO BE SUBJECTIVELY REASONABLE AND OBJECTIVE REASONABLENESS IS IMMATERIAL

In Sanders v. Burlington Northern Santa Fe Ry., No. 17-cv-5106 (D. Minn. Oct. 24, 2019) (2019 U.S. Dist. LEXIS 184105; 2019 WL 5448309), the court determined that Defendant did not appear to dispute that “reporting defects, entering slow orders, and removing tracks from service because of a defect—as Sanders undeniably did here—all constitute activity that is protected under § 20109(b)(1)(A) of the FRSA.” Slip op. at 23 (footnote omitted). The court then turned to the question of the reasonableness of these actions:

Whether or not those actions were objectively reasonable is immaterial in determining whether they were protected under § 20109(b)(1)(A). To be protected under that provision, a safety report need only be “ in good faith,” 49 U.S.C. § 20109(b)(1)(A) (emphasis added)—in other words, subjectively reasonable. See Samson v. U.S. Dep’t of Labor, 732Fed. App’x 444, 446(7th Cir. 2017)(distinguishing (b)(1)(A)-protected activity from (b)(2)-protected activity on that basis); see also Monohan v. BNSF Ry. Co., No. 4:14–cv–00305–JAJ–SBJ, 2016WL 7426581, at *4 (S.D. Iowa May 11, 2016)(recognizing that reports need not be “reasonable” or “correct,” so long as they are made “in good faith,” a term which requires no more than subjective honesty). BNSF does not dispute that Sanders acted in subjective good faith when he reported track defects, entered slow orders, and removed tracks from service.

Id. at 23-24 (footnote omitted).

PROTECTED ACTIVITY; IN FRSA CASE, EMPLOYEE MUST SHOW BOTH THAT HE OR SHE HAD A GOOD FAITH BELIEF THAT THE INURY WAS WORK-RELATED AND THAT HE OR SHE ACTUALLY MADE THE INJURY REPORT IN GOOD FAITH; WHERE THERE A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER PLAINTIFF BELIEVED IN GOOD FAITH THAT INJURY WAS WORK RELATED, SUMMARY JUDGMENT NONETHLESS GRANTED WHERE RECORD SHOWED THAT PLAINTIFF LIED TO SUPERVISOR ABOUT NOT HAVING TO TALKED TO ANYONE ELSE ABOUT THE INJURY BEFORE REPORTING IT

In Lemon v. Norfolk S. Ry. Co., 18-cv-1029 (N.D. Ohio Aug. 28, 2019) (2019 U.S. Dist. LEXIS 146607), Plaintiff filed an FRSA retaliation complaint alleging that Defendant fired him in retaliation for reporting a workplace injury. Plaintiff had hurt his neck and reported his neck pain as a workplace injury. The supervisor investigated and concluded that Plaintiff lied and told inconsistent stories about the injury's cause. After a disciplinary hearing, Plaintiff was fired for dishonesty. The parties filed counter-motions for summary judgment. The court granted Defendant’s motion, which was based on the contention that the injury report was not a protected activity because Plaintiff did not make it in good faith. Plaintiff had requested that the court adopt the test used in Ray v. Union Pacific R.R. Co., 971 F.Supp.2d 869, 883 (S.D. Iowa 2013), in which the plaintiff was found to have acted in good faith, despite his changing stories about when and how he realized his injury was employment related, because at them the injury was reported the plaintiff genuinely believed he was reporting a work-related injury. Defendant asked the court to apply a more restrictive, two-part test. The court explained:

Several district courts have disagreed with Ray’s approach and required plaintiffs to show both that: 1) “the employee [had] a good faith belief that his injury is work-related” and 2) “the employee . . . actually made the injury report itself in good faith.” 4 Murphy v. Norfolk S. Ry. Co., 2015 WL 914922, at *5 n.3 (S.D. Ohio) (citing Good Faith, BLACK’S LAW DICTIONARY (6th ed. 1990)); accord Bostek, supra, 2019 WL 2774147 at *3; Smith v. BNSF Ry. Co., 2019 WL 3230975, at *4 (D. Colo.); Armstrong v. BNSF Ry. Co., 128 F. Supp. 3d 1079, 1089 (N.D. Ill. 2015); see also Miller v. CSX Transport., Inc., 2015 WL 5016507, at *6-7 (S.D. Ohio).5 The second part of this test aims to prevent employees who have “some ulterior motive in reporting an injury,” or who are “actually attempt[ing] to avoid reporting an injury” from abusing the FRSA’s protections. Murphy, supra, 2015 WL 914922 at *5 n.3.

I agree with these courts “that FRSA incorporates both elements[,]” Murphy, supra, 2015 WL 914922 at *5 n.3, and apply the two-part test.

Slip op. at 9-10.

In the instant case, viewing the evidence in the light most favorable to Plaintiff, the court found that there was a genuine issue of material fact as to whether Plaintiff believed in good faith that his injury was work related, but the record also showed that Plaintiff lied to his supervisor when he said that he had not talked to anyone else about his injury, when he had told at least three coworkers about hurting his neck before he made his injury report.

The court held that “lying about potential witnesses to a supervisor threatens his or her ability to find out what happened. It is a far graver act than a mere honest misstatement or meaningless request not to inform others.” Id. at 12 (footnote omitted). The court thus found that Plaintiff had not acted in good faith, and that FRSA claims failed on the protected activity element.

PROTECTED ACTIVITY; GOOD FAITH INJURY REPORT

In Smith v. BNSF Ry. Co., No. 17-cv-00977 (D. Col. July 18, 2019) (2019 U.S. Dist. LEXIS 119794; 2019 WL 3230975), the court denied Defendant’s motion for summary judgment on the question of FRSA protected activity. Defendant argued, relying on Murphy v. Norfolk S. Ry. Co., No. 1:13-CV-863, 2015 U.S. Dist. LEXIS 25631, 2015 WL 914922, at *5 n.3 (S.D. Ohio Mar. 3, 2015), that Plaintiff did not make a good faith injury report. The Murphy court had held that an employee must both “have a good faith belief that his injury is work-related” and “have actually made the injury report itself in good faith. ” Here, Defendant argued that Plaintiff had been dishonest because there was no real injury on the date it was reported; rather the injury had occurred earlier and had not been reported then. The court, however, found the evidence of record showed that “whether there was a work-related injury in May, 2015 or July 22, 2015, could support either side’s conclusions, thus creating a quintessential jury question.” In a footnote, the court noted:

BNSF employees cannot immunize themselves against wrongdoing by disclosing it in a protected-activity report. 816 F.3d at 639. See also McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995) (“Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, [the court] cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit.”).

Slip op. at 13 n. 9.

PROTECTED ACTIVITY UNDER FRSA § 20109(a)(4); GOOD FAITH REQUIREMENT REQUIRES BOTH A GOOD FAITH BELIEF THAT AN INJURY WAS WORK-RELATED, AND GOOD FAITH IN MAKING THE INJURY REPORT

In Bostek v. Norfolk S. Ry. Co., No. 16-cv-2416 (N.D. Ohio July 2, 2019) (2019 U.S. Dist. LEXIS 110623; 2019 WL 2774147), Plaintiff failed a “fitness-for-duty” drug test, and was subject to random drug tests for five years thereafter. During the second of those drug tests, Plaintiff needed to go to her car to obtain her driver’s license for identification, and allegedly slipped and fell on a metal staircase. Plaintiff was taken to the hospital and later discharged with a diagnosis of shoulder contusions. During the hospital visit, attempts were made to obtain a urine sample for the drug test, but Plaintiff was unable to produce the requisite volume even after being given fluid. Defendant’s medical department attempted numerous times to communicate with Plaintiff in the days following the incident to notify her of the scheduling of a “Shy Bladder Exam.” It finally reached Plaintiff the day before the scheduled exam, but Plaintiff informed the medical department that she had a conflicting doctor’s appointment. The medical department did not reschedule the exam. Plaintiff attended the doctor’s appointment rather than the shy bladder exam. Defendant then charged Plaintiff with rules violations for failing to attend the follow up medical examination, and for making false and/or conflicting statement on the day of the slip and fall incident. After a hearing, Plaintiff was dismissed from service based on both charges. Plaintiff then filed a 49 U.S.C. § 20109(a)(4) complaint. Defendant moved for summary judgment, alleging that the injury report was not made in good faith, and that Plaintiff could not establish that her protected activity was a contributing factor in the decision to terminate her employment.

Good Faith

The court stated that the FRSA good faith requirement requires both “a good faith belief that an injury was work-related, and good faith in making the injury report.” Slip op. at 5 (citations omitted). Here, it was undisputed that the reported injury occurred at work, so the remaining question was whether the report was submitted with good faith intent. Defendant contended that the report had the ulterior motive of avoiding the random drug test, and pointed to the fact that Plaintiff’s statements about the incident conflicted with others who were present. The court, however, declined to weigh evidence on summary judgment, but rather stated that it must view the evidence in the light most favorable to Plaintiff and determine whether there was sufficient evidence on which the jury could reasonably find for the plaintiff. The court found that there was a genuine issue of fact whether the inconsistency was a product of bad faith, and that a jury could reasonably conclude that Plaintiff reported the injury in good faith.

Contributing Factor

The court first noted a debate among courts whether the contributing factor prong of an FRSA complaint requires a showing that retaliation was a motivating factor, citing decisions form the 4th, 7th and 8th Circuits, or whether a plaintiff need not demonstrate retaliatory motive, citing a 3d Circuit decision. The court noted that the Sixth Circuit had yet to address this question, and that many trial courts in the Sixth Circuit had used a seven factor test derived from Gibbs v. Norfolk S. Ry. Co., No. No. 3:14-cv-587, 2018 WL 1542141, at *8 (W.D. Ky. Mar. 29, 2018) and Wagner v. Grand Trunk W. R.R., No. 15-10635, 2017 WL 733279, at *4 (E.D. Mich. Feb. 24, 2017)). The court used the seven factor test:

(i) temporal proximity
(ii) indications of pretext
(iii) inconsistent application of an employer’s policies
(iv) shifting explanations for an employer’s actions
(v) antagonism or hostility toward a complainant’s protected activity
(vi) falsity of an employer’s explanation for the adverse action taken, and
(vii) change in the employer’s attitude toward the complainant after he engages in protected activity.

The court reviewed the evidence in the light most favorable to the nonmoving party pertaining to each element, and denied summary judgment. In particular, the court noted Defendant’s failure to comply with DOT guidelines and Federal Railroad Administration regulations relating to drug testing, and possible pretext on the part of Defendant’s superintendent and hearing officer. The court also denied summary judgment as to Defendant’s affirmative defense and as to punitive damages.

20109(c)(2): Requesting Treatment or Following Treatment Plan

PROTECTED ACTIVITY; REQUESTS TO RETURN TO WORK ARE NOT PROTECTED ACTIVITY

PROTECTED ACTIVITY; ARB ASSUMED ARGUENDO THAT ALJ WAS CORRECT IN DETERMINING THAT REPORTING OF INJURY AND ELABORATION ON THAT INJURY DURING FELA TRIAL ARE PROTECTED ACTIVITY UNDER THE FRSA

PROTECTED ACTIVITY; COURT GRANTS SUMMARY JUDGMENT AS TO PLAINTIFFS’ FRSA DISCIPLINE-FOR-FOLLOWING-PHYSICIANS-ORDERS CLAIMS BASED ON CASELAW FINDING THAT THIS PROVISION ONLY APPLIES TO ON-DUTY INJURIES

Off-Work Injuries

Discipline for Following Physician's Orders: § 20109(c)

Plaintiffs also alleged that Defendants violated the FRSA, 49 U.S.C. § 20109(c) by disciplining them "for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician." The court, however, stated that it “joins the other courts throughout the country who have analyzed subsection (c)(2) and found that it ‘applies only to on-duty injuries’ despite the lack of an explicit limitation in the text.” Slip op. at 8 (citations omitted) (emphasis as in original).

PROTECTED ACTIVITY UNDER THE FRSA, 49 U.S.C. § 20109(C); SUBSECTION (C) ONLY REQUIRES THE RAILROAD TO TAKE AN EMPLOYEE TO THE NEAREST HOSPTIAL IF REQUESTED, AND TO STAY OUT OF THE WAY OF THE MEDICAL PROVIDERS; THE ARB WAS NOT PERSUADED BY COMPLAINANT’S ARGUMENT THAT RESPONDENT’S FAILURE TO FOLLOW CRITICAL INCIDENT STRESS PLAN REQUIREMENTS WERE A DENIAL AND INTERFERENCE WITH COMPLAINANT’S MEDICAL TREATMENT, THE ARB FINDING INSTEAD THAT THESE ALLEGATIONS DID NOT IMPLICATE MEDICAL TREATMENT BUT WHETHER COMPLAINANT HAD A LEGAL RIGHT TO BE RELIEVED FROM DUTY AFTER A CRITICAL INCIDENT

In Moss v. CSX Transportation, Inc., ARB No. 2020-0046, ALJ No. 2018-FRS-00001 (ARB July 20, 2021) (per curiam), Complainant – a locomotive engineer – alleged in a his FRSA whistleblower complaint that Respondent failed to follow its critical incident stress plan when it failed to allow him to end his duties or offer him support services after an fatal incident when a person walked in front of the train Complainant was operating. After the incident, the road foreman informed the crew that a “recrew” was not available. Complainant replied that this was “wrong of the company to be doing this to us; we need to be taken off this train per policies and procedures.” Complainant, however, did not tell anyone that he was injured, request an ambulance, or explain why he should be taken off the train. Complainant’s injuries (a misaligned jaw and a cracked tooth) were not visible on the day of the incident, and Complainant did not discover them until later. The ALJ thus concluded that Respondent’s employees could not have interfered with Complainant’s medical treatment because they were unaware of his alleged injuries. The ALJ further noted the foreman’s testimony that the crew did not appear injured when he arrived at the scene, and that Complainant had not asked for medical attention, a therapist or counselor, or that he specifically be allowed to get off the train. The crew indicated to a field investigator that they were OK. The ALJ thus found that Complainant “did not make a request for medical treatment or transportation to medical treatment on the day of the incident,” and that the foreman and the field investigator “would not reasonably have known that Complainant needed immediate medical treatment at the time or that he needed transportation to a hospital.” Slip op at 5 (footnotes omitted). The ALJ concluded that Complainant had not shown that he engaged in FRSA protected activity. The ARB affirmed the ALJ’s decision.

The ARB described the relevant part of the FRSA whistleblower statute:

Subsection (c) of the FRSA whistleblower statute provides that a railroad carrier “may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment” and that “[i]f transportation to a hospital is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care.” The Board has interpreted this provision to mean that the “only affirmative duty created in section 20109(c) is for the railroad carrier to take the employee to the nearest hospital after a work injury if such a request is made” and “to stay out of the way of the medical providers.” The purpose of the subsection “is to ensure employees receive prompt medical attention if they are injured on the job.”

Id at. 6-7 (footnotes omitted).

The ARB determined that the ALJ’s findings that Complainant did not request medical assistance, and that foreman and the field investigator could not have known Complainant required medical attention, were supported by substantial evidence. In addition, the ARB found that “[b]ecause Complainant did not express any need for medical assistance, the ALJ … properly concluded that Respondent did not need to arrange for prompt transportation to a hospital, nor was there any medical treatment that Respondent could have interfered with. Therefore, the ALJ properly denied Complainant’s claim under section 20109(c) (1).” Id. at 7-8.

The ARB noted that Complainant appeared to argue on appeal that Respondent failed to make available certain evidence that would demonstrate that recrews and critical incident response team members were available to relieve the crew and provide counseling to Complainant on the day of the incident. The ARB found that Complainant failed to produce or identify such evidence in his brief, and that such evidence was not relevant because the record established that Respondent had not interfered with any medical treatment and that Complainant never requested transportation to a hospital.

Complainant argued that an FRA investigator’s findings that Respondent failed to follow critical incident stress plan requirements, and such violations effectively denied and interfered with Complainant’s medical treatment. The ARB, however, found that these allegations did not implicate medical treatment, but rather focused on whether Complainant had a legal right to be relieved from duty after a critical incident. The ARB found that none of the violations demonstrated an interference by Respondent with Complainant’s medical treatment or a failure to provide transportation to a hospital when requested.

FRSA 20109(c)(2) SAFE-HARBOR “FITNESS FOR DUTY” EXCEPTION IS ANALYZED UNDER PREPONDERANCE OF THE EVIDENCE STANDARD

In McCarty v. Union Pacific Railroad Co., ARB No. 2018-0016, ALJ No. 2016-FRS-00066 (ARB Sept. 23, 2020), Respondent prohibited Complainant from returning to his position as a Centralized Dispatching Center Electronic Technician because Complainant failed Respondent’s fitness for duty standards. The ARB noted that: “Section 20109(c)(2) expressly carves out a ‘safe-harbor exception’ for some unfavorable employment actions and provides that the employer does not violate the Act when it refuses to permit an employee to return to work following medical treatment if the refusal occurs pursuant to Federal Railroad Administration (FRA), or the carrier’s, medical standards for fitness of duty.” Slip op. at 5 (footnote omitted). The ARB determined “that the ALJ did not err in not applying the whistleblower framework and clear and convincing burden of proof to Section 20109(c)(2)’s safe-harbor exception.” Id. at 6. The ARB explained: “In Ledure, we stated the ‘employer bears the burden of persuasion that the [safe harbor has] been met. Those elements include establishing the relevant standards for fitness for duty and how the employee has failed to meet them.’ Because we do not apply the whistleblower framework to the safe-harbor exception, the burden of persuasion remains at the default preponderance of the evidence.” Id. (footnotes omitted). The ARB determined that in the instant case, substantial evidence supported the ALJ’s finding that the safe-harbor exception applied.

PROTECTED ACTIVITY; FRSA PROTECTED ACTIVITY IS NOT IMPLICATED WHEN COMPLAINANT WAS FOLLOWING THE INSTRUCTION A PHYSICIAN FOR AN ILLNESS NOT RELATED TO THE PERFORMANCE OF WORK DUTIES; RATHER § 20109(C)(2) APPLIES ONLY TO INJURIES SUFFERED AT THE WORKPLACE

In Przytula v. Grand Trunk Western Railroad Co., ARB No. 2017-0007, ALJ No. 2014-FRS-00117 (ARB Sept. 26, 2019) (per curiam), the ARB affirmed the ALJ’s grant of summary decision denying Complainant’s FRSA § 20109(c) “interference with prompt medical attention” complaint. Complainant had repeatedly been disciplined for absences from work, and terminated on two occasions. On both those occasions he was permitted to return to work on “last chance” agreements. Subsequently, Complainant had two additional periods of absences. It was undisputed that “these illnesses were not caused by or related to his employment, and Przytula does not assert that, when he took those days off, he informed GTW that he was following the orders or treatment plan of a doctor.” Slip op. at 2. Respondent conducted an investigative hearing resulting in Complainant’s discharge for violating the company’s absenteeism work rules and the terms of his most recent last chance agreement. Complainant filed a FRSA complaint alleging that he missed work as a result of a medical condition that interfered with his ability to safely perform his job duties, and that he was following the orders and treatment plan of his treating physician.

On appeal, the ARB noted that it had “recently discussed the extent of employee protection provided by Section 20109(c) in Wevers v. Montana Rail Link, Inc.” Id. at 5 (footnote omitted). The ARB stated:

In that case we concluded that “subsection 20109(c)(1) prohibits an employer from denying, delaying, or interfering with medical treatment or first aid only in the temporal period immediately following a workplace injury.” We also noted that the purpose of subsection (c)(2) is to ensure that an injured employee can follow an ongoing treatment plan for the injury suffered in subsection (c)(1).

Id. (footnote omitted). The ARB further noted that several federal court had “also concluded that subsection (c)(2) applies only to injuries suffered at the workplace.” Id. at 5-6 (footnote omitted). The ARB thus found that Respondent was entitled to summary decision as a matter of law. The ARB stated:

In this case, there is no dispute that the illnesses and absences that were the cause of Przytula’s discharge were not related to any injuries suffered during the course of employment. Przytula asserts his claim solely on the argument that the FRSA does not allow GTW to discharge him for following any treatment ordered by a physician. This is an incorrect interpretation of the statute. Przytula did not engage in FRSA-protected activity when he informed GTW that he was following the instruction of a physician for an illness not related to the performance of his duties. He has therefore failed to show that there is a genuine issue of material fact requiring a hearing on the merits of his claim.

Id. at 6 (emphasis as in original).

IX. ADVERSE ACTION

In General

ADVERSE EMPLOYMENT ACTION UNDER FRSA; COURT FINDS THAT THE MOST PERSUASIVE AUTHORITY IS TO APPLY THE “DISSUADED A REASONABLE EMPLOYEE FROM REPORTING THEIR INJURY” STANDARD AND NOT THE ARB’S “MORE THAN TRIVIAL” STANDARD

In Stapleton v. CSX Transp., No. 19-cv-413 (M.D. Fla. Mar. 30, 2021) (2021 U.S. Dist. LEXIS 61377), Plaintiff filed a complaint, one count of which alleged that Defendant retaliated against him for reporting a workplace injury in violation of the FRSA, 49 U.S.C. § 20109(a). Defendant filed a motion for summary judgment.

Plaintiff alleged that in response to his reporting of a workplace injury, Defendant retaliated against him when its employees accused him of dishonesty and the payroll department temporarily cancelled his health insurance benefits causing him to delay his surgery by a week to ten days. Plaintiff also alleged that Defendant retaliated against him when it initially classified his injury as non-FRA reportable deferring payment of his copays and deductibles for a period of less than three months until Defendant updated the classification and offered reimbursement. The court found that essentially, Plaintiff was alleging that Defendant accused him of dishonesty. The court, assuming arguendo that merely being accused of dishonesty can amount to adverse employment action under the FRSA, found that the evidentiary record did not support such a claim. It only showed that Plaintiff felt he was being called dishonest. The court wrote: “Stapleton does not suggest that anyone at CSXT ever accused him of misrepresenting how or when the injury occurred, only that its classification of the injury as non-FRA reportable made him feel he was being accused of dishonesty. Stapleton’s feelings notwithstanding, they are not sufficient to support a claim that CSXT engaged in any retaliatory conduct.” Slip op. at 29.

The court also found no factual basis to support a claim that Defendant retaliated by causing Plaintiff’s health insurance coverage to be temporarily cancelled, the undisputed record establishing that employees are response for notifying the payroll department while on leave, and that it was such a failure that caused the temporary discontinuance.

Plaintiff also claimed retaliation because Defendant had initially determined that his workplace injury was non-FRA reportable, which delayed his receipt of a voluntary benefit that Defendant provides employees that suffer FRA reportable injuries until the classification was updated. The court reviewed the Federal court and ARB precedent concerning what constitutes adverse action under the FRSA. The Eleventh Circuit had not yet addressed the question, and the court thus looked to persuasive authority from other courts. The court declined to apply the ARB’s “more than trivial” standard, and instead found that “the weight of the authority as well as the language of the relevant anti-retaliation statutes support a conclusion that that the Burlington definition of adverse action under Title VII should be applied to retaliation claims under the FRSA.” Id. at 36. The court thus found that the question was whether a reasonable jury could find that Defendant’s actions might have dissuaded a reasonable employee from reporting their injury. Reviewing the uncontested facts of the case, the court found that an inference could not be drawn that the initial classification as non-FRA reportable would dissuade a reasonable worker from reporting a workplace injury. It was clear that Defendant initially classified the injury as non-FRA reportable based on the medical records available at the time, which included Plaintiff’s denial that he suffered an injury. Upon receipt of additional information, Defendant updated the classification and offered reimbursement for expenses incurred while the reportability question was being resolved. The court determined that no reasonable jury could find that Plaintiff suffered an adverse action.

Specific Conduct

Charge Letter / Investigation / Caution

SUMMMARY JUDGMENT ON TEMPORARY REMOVAL FROM SERVICE WITHOUT LOSS IN PAY OR BENFITS; SUCH WAS NOT SHOWN TO BE AN ADVERSE ACTION MERELY BECAUSE PLAINTIFF FELT DISTRAUGHT OVER AN INVESTIGATION, WHERE HE WAS IMMEDIATELY EXONERATED AFTER AN EXPEDITED HEARING; CO-WORKER'S SUBJECTIVE BELIEF THAT DEFENDANTS MEANT TO SEND A MESSAGE THAT IT WOULD TARGET EMPLOYEES WHO ISSUE A BAD RAILCAR ORDER WAS INSUFFICIENT

In Grantham v. CSX Transp., Inc., No. 19-cv-00065 (S.D. Ga. Mar. 7, 2022) (2022 U.S. Dist. LEXIS 39576), Plaintiff was a railcar inspector. During a brake inspection that was scheduled for completion by 2:00 pm so that the train could depart at 2:30 pm, a co-worker had to depart, leaving Plaintiff alone to complete the inspection. A senior general foreman assigned two other inspectors to assist. What transpired when the two inspectors arrived was in dispute, but the parties agreed that they concluded that their help was not needed. The foreman arrived at 2:10 pm and learned that the inspection was not yet completed. Plaintiff finished the inspection at 2:30 pm, flagging the railcar as defective, which resulted in delaying the train's departure until 4:32 pm. The foreman entered a rules violation assessment against Plaintiff for conducting an inefficient inspection (essentially for declining the help). A CSX hearing officer found that the assessment had a sufficient factual ground.

A day before the hearing, the Senior General Foreman and CSX's General Foreman drew a conclusion that Plaintiff had made a statement that they construed as a threat of workplace violence. Plaintiff was temporarily removed while the statement was investigated. Four days later, Plaintiff was exonerated because another employee took responsibility for the statement.

Plaintiff then filed the instant FRSA suit alleging that the charge of inefficiency was pretext for retaliation for Plaintiff's flagging the railcar as defective, and that the temporary suspension was further retaliation.

The parties both filed motions for summary judgment. One point of dispute was whether the temporary removal after the comment erroneously attributed to Plaintiff was an adverse action. Defendants cited 11th Circuit authority that, to rise to the level of adverse action, the act must be materially adverse -- and that the mere threat of termination is not an adverse action when the plaintiff is ultimately not terminated. Here, while Plaintiff was temporarily removed from service, he did not lose pay or benefits, and was immediately exonerated after an expedited hearing. Plaintiff argued that he was distraught when pulled out of service, but cited no authority showing that being distraught over an investigation in which the employee is ultimately exonerated is considered an adverse action. Here, Plaintiff could only point to a declaration from a co-worker opining that Defendant was sending a message that it would target those who bad order cars. The court determined that the co-worker's affidavit was based on his own subjective belief, and that the 11th Circuit has held that affidavits based upon information and belief are insufficient to withstand a motion for summary judgment. The court determined that because Plaintiff had no other support to show that the investigation was an adverse action, Defendants' motion for summary judgment would be granted on this count.

ADVERSE ACTION; WHETHER INVESTIGATION LEADING TO “NO-DISCIPLINE” LETTER IS ADVERSE EMPLOYMENT ACTION

In Perez v. BNSF Railway Co., ARB Nos. 2017-0014 and -0040, ALJ No. 2014-FRS-00043 (ARB Sept. 24, 2020) (per curiam), the ARB remanded for the ALJ to reconsider whether the employer’s internal investigation resulting in a no-discipline letter was an adverse employment action. Specifically, the ARB directed the ALJ on remand “to evaluate whether the investigation in this case was a bad faith investigation that constituted a form of harassment or whether it was a routine investigation, in good faith, to determine if a violation of BNSF’s policies occurred.”

ADVERSE EMPLOYMENT ACTION; USE OF BURLINGTON NORTHERN STANDARD; CIRCUMSTANCES AND CONTEXT ARE IMPORTANT, INCLUDING INSTANCES OF INTERNAL INVESTIGATIONS AND HEARINGS

In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), Respondent did not contest on appeal that imposition of a “Level S violation” (i.e., a serious violation) as a result of a late injury report, and termination of Complainant’s employment following a second Level S violation, were adverse employment actions. Respondent did, however, argue that the ALJ erred in finding that a 36-month review period (an extended review period attached to a Level S violation due to Complainant’s having reported an injury within the prior five years), and a Notice of Investigation were adverse actions.

The ARB stated that:

In considering whether an action is adverse, the Board has referenced the United States Supreme Court’s decision in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), a case decided under Title VII of the Civil Rights Act of 1964. In describing the injury or harm alleged as retaliation, the Court held that: “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id at 68. Moreover, the Court held that the significance of any given act of retaliation will often depend upon the particular circumstances and context. Id at 69.

Slip op. at 7 (footnote omitted). The ARB thus affirmed the ALJ’s finding that the 36-month review period was an adverse action as it formed part of Complainant’s progressive discipline. The ARB then stated:

We agree that any alleged adverse action must be considered in context, including internal investigations and hearings which may result in the imposition of discipline. See, e.g., Petronio v. Nat’l R.R. Pas. Corp., 2019 WL 4857579 (SDNY 2019) (bringing a disciplinary charge alone, in and of itself, does not automatically constitute an adverse action, although it can constitute one if such action would dissuade a reasonable employee from engaging in the protected conduct).

Id. The ARB, however, concluded that it need not address Respondent’s arguments regarding whether the Notice of Investigation was adverse employment action given the disposition of the case (affirming the ALJ’s determination that Respondent established its affirmative defense burden of proof).

Denial of Request to Return to Work

ADVERSE EMPLOYMENT ACTION; DENIAL OF REQUEST TO RETURN TO WORK IS, EFFECTIVELY, A CONSTRUCTIVE DISHARGE

Complainant continued to receive medical treatment, and about a year later a physical examiner and Complainant’s treating physician both cleared Complainant to return to work with no restrictions. Complainant’s union representative contacted Respondent’s Labor Relations Department regarding steps for Complainant to return to work. Respondent’s representative responded that, based on testimony in the FELA proceeding, Complainant was “estopped from returning to service.” Complainant was never discharged in a disciplinary proceeding or otherwise formally terminated and remained on the roster.

Complainant then filed a retaliation complaint alleging that he engaged in protected activity pursuant to 49 U.S.C. § 20109(c)(2) when he requested to return to work based on his physician’s clearance. The ALJ dismissed the complaint. The ALJ found that Complainant engaged in protected activity by reporting his injury and elaborating on it during the FELA trial, and that Respondent effectively terminated Complainant’s employment by refusing to allow him to return to work.

Two members of the ARB panel agreed with the ALJ that Respondent effectively terminated Complainant’s employment when it did not allow a return to work. One member of the ARB wrote in a concurrence that Complainant’s successful FELA suit that resulted a large award that included awards for future pain and suffering, permanent disability, future earnings, and future life care, etc., seemed to constitute a constructive resignation. The ARB, however, affirmed the ALJ’s determination that Complainant did not establish contributory factor causation.

Interference With Medical Care

ADVERSE EMPLOYMENT ACTION; SUPERVISOR’S ACT OF HAVING COMPLAINANT TALK TO NURSE ON CELL PHONE ON THE WAY TO THE HOSPITAL FOUND NOT TO BE A DENIAL, DELAY OR INTERFERENCE WITH MEDICAL TREATMENT UNDER THE FACTS OF THE CASE

In Walls v. Union Pacific Railroad Co., ARB No. 2018-0015, ALJ No. 2016-FRS-00069 (ARB Mar. 17, 2020) (per curiam), the ARB affirmed the ALJ’s Decision and Order dismissing Complainant’s FRSA complaint on the ground that Complainant failed to establish by a preponderance of the evidence that he suffered an unfavorable personnel action. Complainant was injured in a derailment on September 3, 2015, and on September 9, 2015 requested transportation to the hospital. He followed his physician’s treatment plan restricting him from full-time work from September 9, to October 20, 2015. The parties stipulated that Complainant engaged in protected activity.

Complainant alleged that Respondent violated the FRSA by delaying and interfering with his medical treatment on September 9, 2015. The ARB, however, found that substantial evidence supported the ALJ’s factual determination that, although Complainant’s supervisor had handed Complainant a cell phone to speak to a nurse while the supervisor was driving Complainant to the hospital, Complainant voluntarily spoke to the nurse and this incident had not caused a denial, delay or interference in transporting Complainant to the hospital and securing medical treatment. The ALJ also found that the nurse had not attempted to dissuade or interfere with Complainant obtaining medical treatment; instead, the ALJ found that the nurse facilitated rather than interfered with Complainant’s medical care.

Complainant also alleged that Respondent’s periodic surveillance of him by a private investigator while Complainant was off work was stressful and rose to the level of adverse action. The ARB, however, ruled that the ALJ’s conclusion that there had been no adverse personnel action with respect to the surveillance was supported by substantial evidence and in accordance with law. The ARB quoted the ALJ’s decision in this regard:

The report makes clear that the private investigator followed Complainant to his doctor’s appointments and parked outside his home during the daytime hours only. There is no indication the private surveillance caused Complainant to alter his daily living activities in any manner or resulted in Complainant or any of his family members having any personal encounters with unknown persons. Consequently, the undersigned concludes that, based on the facts presented in this case, the private surveillance of Complainant was not an adverse action and would not dissuade a reasonable worker from bringing a charge of discrimination.

Slip p. at 5, quoting ALJ’s D. & O. at 23.

Hostile Work Environment

HOSTILE WORK ENVIRONMENT; TO BE ACTIONABLE, WORK ENVIRONMENT MUST BE SUFFICIENTLY SEVERE OR PERVASIVE TO ALTER CONDITIONS OF EMPLOYMENT AND CREATE AN ABUSIVE WORK ENVIRONMENT

HOSTILE WORK ENVIRONMENT; NEGATIVE COMMENTS NOT KNOWN TO COMPLAINANT UNTIL DISCOVERY AND NEGATIVE COMMENTS BY CO-WORKERS MADE NOT BECAUSE OF INJURY, BUT SAFETY CONCERNS AND INCREASED WORK LOAD, FOUND INSUFFICIENT TO ESTABLISH HOSTILE WORK ENVIRONMENT

HOSTILE WORK ENVIRONMENT; COVERT INVESTIGATION OF WHETHER COMPLAINANT WAS ABUSING WORK TIME WAS NOT HARASSMENT BUT A STANDARD AND ROUTINE RESPONSE TO SUSPICION OF ABUSE

In Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam), Complainant alleged in an FRSA complaint that Respondent interfered with his medical treatment and retaliated against him for reporting his injuries and making a safety complaint. One of Complainant’s allegations was that he suffered a hostile work environment based upon co-workers’ and management’s attitude toward his injury and Respondent’s investigations into his use of company time. The ALJ found that Complainant did not establish a hostile work environment.

On appeal, Complainant noted comments by co-workers and supervisors concerning his light-duty status following his injury, such as a co-worker telling him to “man up” and calling him a “wuss,” and a management official mocking his injuries by calling him a “six million dollar man” who might implode. Complainant also noted that Respondent conducted covert surveillance of his activities during the work day.

The ARB, however, affirmed the ALJ’s conclusion that Complainant did not suffer an actionable hostile work environment. The ARB wrote:

To constitute an actionable hostile work environment, that environment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Williams v. Nat’/ R.R. Passenger Corp., ARB No. 12-068, ALJ No. 2012-FRS-016, slip op. at 6-7 (ARB Dec. 19, 2013), citing Harris v. Forklift Sys., 510 U.S. 17, 21-23 (1993).

Slip op. at 13. The ARB found that substantial evidence supported the ALJ’s finding. It noted that the management officials’ comments only become known to Complainant during discovery, and that the official who made the six-million dollar man comment had no decision-making role in the censures. The co-workers’ negative views of Complainant’s work status arose out of safety concerns and increased work load. The ARB agreed with the ALJ that Complainant’s supervisor’s investigation into Complainant’s performance was not evidence of harassment or a hostile work environment; that supervisor had supported his assessment of Complainant’s abuse of work time through an independent inquiry without relying on information from others. The ARB stated that the ALJ “correctly reasoned that these performance investigations were standard and routine.” Id.

Surveillance

ADVERSE EMPLOYMENT ACTION; RESPONDENT’S USE OF PRIVATE INVESTIGATOR FOR DAYTIME SURVEILLANCE OF COMPLAINANT FOUND NOT TO BE ADVERSE EMPLOYMENT ACTION UNDER THE FACTS OF CASE; LACK OF EVIDENCE THAT SURVEILLANCE CAUSED COMPLAINANT TO ALTER HIS ACTIVITIES OR THAT COMPLAINANT OR HIS FAMILY HAD PERSONAL ENCOUNTERS WITH UNKNOWN PERSONS

The report makes clear that the private investigator followed Complainant to his doctor’s appointments and parked outside his home during the daytime hours only. There is no indication the private surveillance caused Complainant to alter his daily living activities in any manner or resulted in Complainant or any of his family members having any personal encounters with unknown persons. Consequently, the undersigned concludes that, based on the facts presented in this case, the private surveillance of Complainant was not an adverse action and would not dissuade a reasonable worker from bringing a charge of discrimination.

Slip p. at 5, quoting ALJ’s D. & O. at 23.

Threats / Threatened Discipline

ADVERSE ACTION; REMOVAL FROM SERVICE IN HUMILATING FASHION; SUSPENSION AND INVESTIGATION OF CHARGE OF SERIOUS MISCONDUCT DURING WHICH COMPLAINANT WAS NOT PAID AND DID NOT HAVE INSURANCE BENEFITS; THREAT OF DISCIPLINE

In Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020) (per curiam), the ARB agreed “with the ALJ that the actions Respondent took against Complainant were unfavorable personnel actions under FRSA. Complainant was removed from service in a humiliating way in front of all of his peers after he had just returned to work from the weekend only to be accosted by a police officer, stripped of his work effects, and sent on his way. He was suspended, charged with serious misconduct, and subject to an investigation during which time he was not paid and did not have insurance benefits. He was threatened with discipline up to and including termination.” Slip op. at 12.

Timely Injury Reporting Rule

RAILROAD’S ENFORCEMENT OF TIMELY INJURY REPORTING RULE FOUND SO UNREASONABLE AND UNDULY BURDENSOME UNDER THE FACTS OF THE CASE AS TO CONSTITUTE RETALIATION UNDER THE FRSA

In Thorstenson v. USDOL, No. 20-70211 (9th Cir. Dec. 21, 2020) (unpublished) (2020 U.S. App. LEXIS 39927), the Ninth Circuit reversed the ARB’s rejection of “Thorstenson’s contention that BNSF’s enforcement of its timely injury reporting policy was so unreasonable and unduly burdensome that it constituted retaliation when enforced on [the facts of case].” The Ninth Circuit stated:

Notifying the railroad carrier of a work-related personal injury is an enumerated protected activity under the FRSA. See 49 U.S.C. § 20109(a)(4). A violation to the FRSA occurs where, as here, an employee is disciplined for failure to comply with a railroad carrier’s time or manner reporting rule even though its requirements could not reasonably be met. The following circumstances made it virtually impossible for Thorstenson to know he had experienced a new injury in time to comply with BNSF’s 72-hour reporting rule: the injury presented as an aggravation to an existing injury which Thorstenson had already reported, his injury did not require him to miss work until after the 72-hour period had expired, and a medical expert examining him within the 72-hour period did not identify his symptoms as a new injury or take him off work. The fact that BNSF staff, including Thorstenson’s supervisor, initially did not know that Thorstenson’s symptoms required him to file a new injury report further underscores the unreasonableness of expecting Thorstenson to have known he was required to file such a report and disciplining him because he did not. Accordingly, because it was virtually impossible for Thorstenson to comply with the injury reporting rule, he was effectively disciplined for the protected activity of reporting a workplace injury.

The Ninth Circuit also determined that the ARB had erroneously replaced the FRSA’s statutory contributing factor standard with a proximate cause standard.

[Editor’s note: The ARB had held that the ALJ erred in applying “inextricably intertwined” and “chain of events” causation analysis at the contributing factor stage. The ARB, however, did not decide the appeal on the contributing factor element. Rather, it affirmed the ALJ’s finding that the affirmative defense had been established. The affirmative defense determination was based on a finding that Complainant was disciplined “because his report was late, not because he reported an injury.” The ARB agreed with the ALJ’s “rejection of Complainant’s contention that BNSF’s enforcement of its timely injury reporting policy is unreasonable and unduly burdensome. The ALJ found that so long as a rule is lawful, an employer is entitled to its disciplinary rules even if the rules are unwise, counterproductive, or arbitrary.” Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (per curiam).].

[Editor's note update: In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Dec. 21, 2021) (per curiam), casenoted below in the Affirmative Defense Section of this Digest, the ARB affirmed its
earlier decision affirming the ALJ on the affirmative defense element of an FRSA case, and explained that it does not review the wisdom of an employer's policy, but only determines determine whether the respondent retaliated against the complainant for activity protected under the FRSA.]

Working Conditions

ADVERSE EMPLOYMENT ACTION UNDER THE FRSA; SUPERVISOR’S ACTION OF CANCELLING OVERTIME IN ORDER TO UNDERMINE COMPLAINANT’S POSITION AS A UNION REPRESENTATIVE WAS AN ADVERSE ACTION UNDER BOTH THE “MORE THAN TRIVIAL” AND “MATERIALITY” TESTS

In Burt v. National Railroad Passenger Corp. (Amtrak), ARB No. 2020-0042, ALJ No. 2018-FRS-00015 (ARB Apr. 29, 2021) (per curiam), Complainant was an electrical technician for Respondent. In 2013, he reported to supervisors that battery chargers were being installed improperly and filed an OSHA complaint about the issue. OSHA investigated. Complainant later made a confidential complaint on Respondent’s “EEOC” Ethics and Compliance Hotline, stating that a supervisor harassed him and co-worker because of the safety complaint. A superintendent revealed to the supervisor that Complainant made the “EEOC” complaint. In 2016, Complainant became a Union shop steward, which required Complainant to interact with the supervisor against whom the prior complaint had been lodged. When accompanying a co-worker to confront the supervisor about an issue concerning overtime assignments, the supervisor and Complainant got into an argument and had to be separated by a foreman. The supervisor added: “Next time you call the EEOC, leave your name with it.” The supervisor then announced to the men on his line that he was cancelling overtime. Complainant was stressed out over the incident and concerned that the supervisor made it look like it was his fault that overtime had been discontinued.

On appeal, Respondent argued that the verbal altercation between Complainant and his supervisor was not an adverse action under the FRSA. The ARB noted, however, that the ALJ found that the subsequent cancellation of overtime was the adverse action. The ARB agreed with the ALJ that the cancellation of overtime “undermined Complainant’s position as a union representative and was made to harass and humiliate him, which is more than a de minimus harm” and was therefore an adverse employment action. Slip op. at 11. Respondent argued that the ARB should not apply the “more than trivial test” and instead apply the Title VII “materiality test.” The ARB, however, found that Respondent had not persuaded it that its actions would not be adverse action under either test.

Adverse Action and Summary Decision

SUMMARY JUDGMENT; ADVERSE EMPLOYMENT ACTION AND CAUSATION; PLAINTIFF’S SUBJECTIVE FEELING THAT HE WAS BEING CALLED DISHONEST BASED ON DEFENDANT’S ACTIONS IN RESPONSE TO HIS WORKPLACE INJURY WHERE INSUFFICIENT TO ESTABLISH RETALIATION WHERE THERE WAS NO EVIDENCE THAT ANY OF DEFENDANT’S EMPLOYEES ACCUSED HIM OF DISHONESTY

SUMMARY JUDGMENT; ADVERSE EMPLOYMENT ACTION AND CAUSATION; TEMPORARY SUSPENSION OF HEALTH INSURANCE COVERAGE WAS NOT RETALIATORY WHERE UNDISPUTED RECORD SHOWED THAT SUSPENSION WAS CAUSED BY PLAINTIFF’S FAILURE TO NOTIFY PAYROLL DEPARMENT THAT HE WAS ON LEAVE

SUMMARY JUDGMENT; ADVERSE EMPLOYMENT ACTION; WHERE DEFENDANT’S INITIAL CLASSIFICATION OF INJURY AS NON-FRA REPORTABLE (WHICH DELAYED PLAINTIFF’S ELIBILITY FOR REIMBURSEMENT FOR OUT-OF-POCKET EXPENSES) BASED ON MEDICAL DOCUMENTATION AVAILABLE AT THE TIME, WHICH INCLUDED PLAINTIFF’S STATEMENT THAT HE HAD NOT SUFFERED AN INURY, AND WHICH WAS REVISED ONCE MORE DOCUMENTATION BECAME AVAILABLE, DID NOT MEET THE “DISSUADED A REASONABLE EMPLOYEE FROM REPORTING THEIR INJURY” STANDARD

X. CAUSATION / CONTRIBUTING FACTOR

Contributing Factor Generally

CONTRIBUTORY FACTOR CAUSATION; SUBSTANTIAL EVIDENCE SUPPORTED ALJ'S FINDING THAT COMPLAINANT WAS FIRED FOR ENGAGING IN A PHYSICAL ALTERCATION, AND THAT PROTECTED ACTIVITY HAD NOT CONTRIBUTED TO RESPONDENT'S TERMINATION DECISION

In Yelder v. Norfolk Southern Railway Co., ARB No. 2020-0041, ALJ No. 2018-FRS-00069 (ARB Aug. 24, 2021) (per curiam), the ARB summarily affirmed the ALJ's determination that FRSA protected activity had not contributed to Respondent's decision to terminate Complainant's employment. Complainant had engaged in protected activity when reporting "a transport driver’s verbal unresponsiveness to his repeated requests, made before and after contacting the Maumee Bridge Operator, to be told where they were going and to stop the vehicle to let him out." Slip op. at 2-3 (footnote omitted). Substantial evidence, however, supported the ALJ's finding that "Complainant’s actions in engaging in a physical altercation with the transport driver and his attempt to take over the steering wheel and brakes of a moving vehicle led to the disciplinary action in this case." Id. at 3.

CONTRIBUTORY FACTOR CAUSATION; ARB AFFIRMED ALJ’S FINDING THAT COMPLAINANT FAILED TO CARRY HIS BURDEN OF PROOF UNDER THE FACTS OF THE CASE; FAILURE TO DISCLOSE CRIMINAL CONVICTION ON EMPLOYMENT APPLICATION; SERIOUS WORK VIOLATIONS; RESPONDENT’S LENIENCY; LACK OF TEMPORAL PROXIMITY

In Brucker v. BNSF Railway Co., ARB Nos. 2018-0067, -0068, ALJ No. 2013-FRS-00070 (ARB Nov. 5, 2020) (per curiam), the ARB affirmed the ALJ’s finding that Complainant failed to prove by a preponderance of the evidence that his alleged protected activity under the FRSA was a contributing factor to Respondent’s decision to terminate Complainant’s employment. In a very fact-specific decision, the ARB found that several factors supported the ALJ’s findings.

First, Complainant had admitted that he lied on his employment application when he checked “no” when asked if he had ever been convicted of a crime other than traffic violations. Complainant had previously plead guilty to misdemeanor assault, and served a suspended sentence. Although Complainant argued that the ALJ should have credited his testimony that his assistant supervisor at the time told him that the railroad was only interested in felony convictions, the ARB pointed out that Complainant had not informed HR of the conviction, and that other witnesses familiar with Respondent’s hiring practices testified that Complainant’s claim that the assistant supervisor told him to check the “no” box was not plausible.

Second, Complainant had committed a second serious violation within the applicable review period, which under Respondent’s employee performance accountability policy could result in dismissal. The ARB noted that the ALJ found that Respondent administered the discipline in accordance with its policies and the collective bargaining agreement. The ARB noted the ALJ’s conclusion that these violations, taken together with Complainant’s dishonestly on the application, were highly probative to Respondent’s decision to terminate the employment.

Third, the decision to terminate Complainant’s employment was made by multiple individuals both inside and outside Complainant’s supervisory chain, the department in which he worked, and the locality.

Fourth, Complainant’s protected activity occurred two years before the termination decision. The ALJ found that Complainant’s supervisors had the opportunity to terminate Complainant’s employment earlier for violations in 2010 and 2011, but had exercised leniency. The ARB agreed with the ALJ that such leniency weighed against finding contributory factor causation between Complainant’s 2009 alleged protected activity and the termination in 2012.

DISTRICT COURT’S DECLINATION OF BNSF’S PROPOSED JURY INSTRUCTIONS ON HONEST BELIEF AND BUSINESS JUDGMENT WAS NOT AN ABUSE OF DISCRETION WHERE PROPER INSTRUCTIONS WERE GIVEN ON FRSA BURDENS OF PROOF

In Wooten v. BNSF Ry., No. 19-35431 (9th Cir. June 22, 2020) (unpublished), the Ninth Circuit determined that the district court did not abuse its discretion by declining to give BNSF’s proposed honest belief and business judgment instructions, the district court having properly instructed the jury on Wooten’s burden of proof under the FRSA and on BNSF’s burden of proof on its affirmative defense, and having adequately instructed the jury on “contributing factor” causation as defined in Frost v. BNSF Ry. Co., 914 F.3d 1189, 1195 (9th Cir. 2019). The Ninth Circuit stated that because the district court’s instructions correctly stated the law, BNSF’s proposed honest belief and business judgment instructions were not necessary.

LEGAL FRAMEWORK FOR FRSA CASES; SIXTH CIRCUIT QUESTIONS COMMON CONCLUSION THAT FRSA ADOPTS THE AIR21 BURDEN-SHIFTING FRAMEWORK AND ITS “CONTRIBUTING FACTOR” CAUSATION ELEMENT

In Lemon v. Norfolk Southern Railway Co., 958 F.3d 417 (6th Cir. Apr. 30, 2020) (No. 19-3906) (2020 U.S. App. LEXIS 13927), the parties agreed to the legal framework for deciding a retaliation claim under the Federal Railroad Safety Act. Thus, the court stated that it had not been asked to “decide how, if at all, a burden-shifting framework applies to them, or resolve whether “contributing factor” is the correct causation standard.” Nonetheless, the court noted its hesitation to join the common conclusion that FRSA incorporated the AIR21 framework to FRSA cases in federal court generally, and that the AIR21 “contributing factor” causation standard applies. The court wrote:

Even so, we pause to mention a few uncertainties about these premises. On the one hand, every court to consider a claim under the Act has concluded that claims under § 20109(d)(1) and § 20109(d)(3) use the “rules and procedures” and “burdens of proof” in 49 U.S.C. § 42121. See, e.g., Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018); Araujo v. N.J. Transit Rail Ops., Inc., 708 F.3d 152, 157 (3d Cir. 2013). Supporting that view, two other statutes that incorporate § 42121 by reference apply its burdens of proof to both agency and federal court claims. 49 U.S.C. § 31105(b)(1); 18 U.S.C. § 1514A(b)(2)(C). See, e.g., Maverick Transp., LLC v. U.S. Dep’t of Labor, 739 F.3d 1149, 1155 (8th Cir. 2014); Genberg v. Porter, 882 F.3d 1249, 1254 (10th Cir. 2018). On the other hand, § 20109 says that the portions of § 42121 that it incorporates apply only to “action[s] under paragraph [(d)](1)”—apply in other words only to agency actions, not kick-out actions under § 20109(d)(3) like this one. 49 U.S.C. § 20109(d)(2)(A). Incorporating § 42121’s procedures into federal court kick-out actions potentially reads the jury trial right out of § 20109(d)(3) and requires the Secretary of Labor to investigate midway through district court proceedings. Id. § 42121(b)(2)(A).

Also opaque is whether “contributing factor” causation, the standard in § 42121, is one of the “rules and procedures” or “burdens of proof” incorporated into § 20109. Id. § 42121(b)(2)(B)(i). A causation requirement doesn’t seem to fit naturally into either category. And applying “contributing factor” causation to § 20109(d) actions could read the causation standard for different kinds of protected activities out of § 20109(a)—(c) (“due, in whole or in part”; “for”). Id. § 20109(a), (c)(2). That is odd because Congress tweaked one of those standards at the same time it added the reference to § 42121, suggesting the partial incorporation of § 42121 did not extend to substituting its causation standard for the ones in § 20109. P.L. 110—53, § 1521, 121 Stat. 266 (Aug. 3, 2007).

Slip op. at 3-4.

CONTRIBUTORY FACTOR CAUSATION; FRCP 12(b)(6) MOTION TO DISMISS GRANTED WHERE COMPLAINANT, WHO HAD ADMONISHED A CO-WORKER, FAILED TO PLEAD THAT HE HAD REPORTED TO ANY SUPERVISOR THAT “HAZARDOUS SAFETY OR SECURITY CONDITION” EXISTED, THAT THERE WAS ANY TEMPORAL PROXIMITY BETWEEN SUCH A REPORT AND DISCIPLINE, OR THAT A SUPERVISOR SHOWED ANY RETALIATORY INTENT BASED ON SUCH A REPORT

The court granted Defendants’ FRCP 12(b)(6) motion to dismiss the FRSA count on the ground that Plaintiff had not plausibly alleged contributory factor causation. The dismissal was without prejudice to file an amended complaint to correct the deficiencies.

The court assumed arguendo that Plaintiff’s admonishment of a co-worker for engaging in an unsanitary cleaning protocol amounted to protected activity under the FRSA, but found that Plaintiff nonetheless had not alleged circumstances suggesting that his reporting of the co-worker’s conduct was a contributing factor to disciplinary proceedings. Plaintiff had been removed from service immediately following an unrelated altercation with the co-worker—and was subsequently suspended following a disciplinary proceeding. Plaintiff did not, however, indicate that the general foreman was even aware of the cleaning incident at the time he removed Plaintiff from service, the removal being based on the co-worker’s accusation that Plaintiff had acted in a threatening manner. Although Plaintiff alleged that a foreman who had been present during the cleaning incident eventually informed the general foreman about the cleaning incident, Plaintiff had not alleged when this occurred. Nor had Plaintiff alleged that he himself reported the incident, that he did so because he believed the incident reflected a “hazardous safety or security condition,” that he made such a report with temporal proximity to when he was disciplined, or that any supervisor expressed resentment or disapproval of such a report. The court stated:

In the absence of such allegations, or any other factual context surrounding any “reporting” by Plaintiff of the cleaning incident, the Court cannot plausibly infer retaliatory intent. See Niedziejko v. Del. & Hudson Ry. Co., No. 18-CV-675, 2019 WL 1386047, at *44 (N.D.N.Y. Mar. 27, 2019) (collecting cases and explaining that gaps in more than two months between a report and an adverse action are too attenuated to raise an inference of discriminatory animus or retaliatory intent); Lockhart v. Long Island R.R. Co., 266 F. Supp. 3d 659, 664 (S.D.N.Y. 2017) (“Lockhart I”) (requiring some indication of “intentional retaliatory animus” to support a FLSA retaliation claim), aff’d sub nom. Lockhart II; cf. Nichik v. N. Y. C. Transit Auth., No. 10-CV-5260, 2013 WL 142372, at *5 (E.D.N.Y. Jan. 11, 2013) (denying defendant’s motion for summary judgment because there was “direct and circumstantial evidence” that retaliatory animus was a contributing factor in the unfavorable personnel action).

CONTRIBUTORY FACTOR CAUSATION; FOURTH CIRCUIT FINDS THAT DISTRICT COURT PROPERLY GRANTED SUMMARY JUDGMENT WHERE THERE WAS AN INTERVENING EVENT AND PLAINTIFF’S FATHER, WHO ENGAGED IN SAME PROTECTED ACTIVITY, HAD NOT BEEN FIRED

In Barrick v. PNGI Charles Town Gaming, LLC, No. 19-1259 (4th Cir. Mar. 25, 2020) (per curiam) (unpublished) (2020 U.S. App. LEXIS 9470), the Fourth Circuit affirmed the District Court’s grant of summary judgment dismissing Plaintiff’s Bank Secrecy Act and SOX retaliation complaint. The court concluded that Plaintiff failed to demonstrate that his protected activity was a contributing factor to his termination from employment. The court found it undisputed that Plaintiff had received a final written warning from the Casino before engaging in any protected activity, and that he was aware that any further violations would result in his termination. The termination occurred after the Casino discovered that he had engaged in a violation of its personal relationship policy. The court found this to be a “legitimate intervening event” that severed any causal connection between protected activity and the termination. The court also noted that Plaintiff’s father, who engaged in the same protected activity, remains employed by the Defendant.

Respondent’s Belief

CONTRIBUTORY FACTOR CAUSATION; RESPONDENT’S DECISION NOT TO ALLOW COMPLAINANT TO RETURN TO WORK BASED ON COMPLAINANT’S LAWSUIT IN WHICH HE SOUGHT AND OBTAINED RECOVERY FOR PERMANENT DISABILITY WAS NOT BASED ON COMPLAINANT’S PROTECTED ACTIVITY

The ALJ found that Complainant did engage in protected activity by reporting his injury and elaborating on it during the FELA trial, and that Respondent effectively terminated Complainant’s employment by refusing to allow him to return to work. The ALJ, however, found that Complainant did not establish contributory factor causation.

The ARB assumed arguendo that the ALJ was correct in finding that Complainant engaged in protected activity in reporting an injury and elaborating on it in a FELA trial. The ARB nonetheless affirmed the ALJ’s determination that Complainant had not established contributory factor causation. The ARB found that the record was “devoid of direct or circumstantial evidence that either Johnson’s reporting an injury or elaborating on it during the trial played any role in Respondent’s refusal to permit him to return to work.” Slip op. at 5. The ARB agreed with the ALJ that Respondent’s reliance on estoppel from a return to work based on a representation of permanent disability at the FELA trial did not indicate an animus toward Complainant’s reporting a work injury or elaborating on it during trial. The ARB noted that, although the ALJ found that collateral estoppel did not apply, this finding did not change the fact that Respondent relied on estoppel along with other factors—and not protected activity—in determining its course of action.

CONTRIBUTORY FACTOR CAUSATION IN FRSA REPORT OF WORK-RELATED PERSONAL INJURY CASE UNDER FROST v. BNSF RAILWAY; NINTH CIRCUIT DISTINGUISHES, IN AN UNPUBLISHED DECISION, BETWEEN A SITUATION WHERE THE RAILROAD DOES NOT KNOW THAT AN EMPLOYEE MADE A PERSONAL INJURY REPORT, AND WHERE THE RAILROAD SUBJECTIVELY BELIEVED THAT THE EMPLOYEE’S ACTIONS WERE NOT PROTECTED ACTIVITY; THE EMPLOYEE DOES NOT HAVE THE BURDEN TO ESTABLISH A SUBJECTIVE DISCRIMINATORY ANIMUS BY THE EMPLOYER, AND THE RAILWAY CAN BE LIABLE EVEN IF IT HAD A SUBJECTIVE REASONABLE BELIEF THAT EMPLOYEE’S REPORT WAS NOT MADE IN GOOD FAITH

BNSF challenged the ARB’s ruling that it violated the FRSA, 49 U.S.C. § 20109(a)(4) when it terminated Brough due to his report of work-related personal injury. The court found that the ALJ’s decision finding contributory factor causation, as affirmed by the ARB, was supported by substantial evidence: the timing of the discipline, the circumstances of Brough’s removal from his work station, and a shift in the basis for the disciplinary charges.

BNSF’s appeal was largely based on its subjectively reasonable belief that Bough’s actions were not protected activity under the FRSA. In this regard, the court cited its rulings in Frost v. BNSF Ry. Co., 914 F.3d 1189, 1195 (9th Cir. 2019), that “[a] finding that the employer terminated an employee due, in whole or in part, to the employee’s protected act establishes intentional discrimination for purposes of 49 U.S.C. § 20109(a)” and that “an employee need not prove the employer had a subjective discriminatory animus….” Slip op. at 3. The court distinguished the situations where the employer did not know at all about the protected activity, and the employer held a subjective belief that the activity was not protected.

In context, Frost’s statement that “it would not be possible to show that an employer retaliated in response to an employee engaging in protected activity if the employer could demonstrate that it honestly believed no protected activity had occurred,” id. at 1197, means that an employee’s report of a workplace injury cannot be a contributing factor to a decision to terminate the employee if the employer does not know that an employee made such a report at all.

Id.

Although the ALJ had found when considering punitive damages that BNSF had not intentionally violated the FRSA, and that the decision makers genuinely believed that they were punishing unprotected conduct, the court determined that the ARB’s conclusion that BNSF violated the FRSA was not undercut because Brough was not required to prove BNSF’s subjective animus. The court further stated:

For the same reason, we reject BNSF’s argument that it did not violate the FRSA because § 20109(a)(4) bars discrimination against an employee only when the employee has engaged in a “lawful, good faith act,” and BNSF had a subjective reasonable belief that Brough’s report of injury was not in good faith.

Id. at 4.

CONTRIBUTORY FACTOR CAUSATION; ARB AFFIRMED ALJ’S FINDING THAT COMPLAINANT FAILED TO ESTABLISH CONTRIBUTION IN A FACT-SPECIFIC DECISION; MERE SHOWING THAT INVESTIGATION LEADING TO COMPLAINANT’S DISCHARGE WAS FLAWED, WAS INSUFFICIENT TO SHOW CONTRIBUTORY FACTOR CAUSATION, AS THE QUESTION IS WHETHER RESPONDENT BELIEVED IN GOOD FAITH THAT COMPLAINANT WAS GUILTY OF MISCONDUCT AND NOT WHETHER COMPLAINANT WAS ACTUALLY GUILTY OF THAT MISCONDUCT

In Bankruptcy Estate of Donald M. Graff v. BNSF Railway Co., ARB No. 2021-0002, ALJ No. 2018-FRS-00018 (ARB Sept. 30, 2021) (per curiam), Complainant worked as an electronics technician and then as a foreman for Respondent railroad from 2007 to 2017. Complainant lodged a variety of safety complaints with his supervisor. In 2017, Complainant was suspended and then fired for attempting to destroy company property and insubordination. Complainant filed an FRSA retaliation complaint, and the ALJ found that Complainant failed to establish by a preponderance of the evidence that his protected activity contributed to Respondent’s decision to terminate his employment. On appeal, Complainant pointed to evidence he believed demonstrated that he met his burden. The ARB, however, found that substantial evidence supported the ALJ’s decision, and affirmed dismissal of the complaint.

Complainant first pointed to the temporal proximity of only ten days from his protected activity to his suspension. The ARB, however, found that the ALJ correctly determined that temporal proximity alone is generally insufficient to provide contribution by a preponderance of the evidence.

Second, Complainant alleged that there was evidence of disparate treatment of another employee. The ARB noted that “[d]isparate treatment requires that both employees committed similar conduct with comparable seriousness.” Slip op. at 12. The ALJ had afforded more weight to Respondent’s witnesses’ testimony that the other employee’s actions had not been a serious safety violation. Complainant, in contrast, was accused of intentional acts of destroying property. The ARB thus affirmed the ALJ’s finding that Complainant failed to show disparate treatment.

Third, Complainant alleged that “evidence of antagonism and hostility towards Complainant’s safety reports and a change in management’s attitude toward Complainant demonstrates a contributing factor to his termination.” Id. at 13. In this regard, Complainant cited to alleged statements by his supervisor demanding that Complainant not call HR, and to quit bringing safety complainants; to the fact that the supervisor collected information that resulted in an investigation of Complainant; and to the fact that he had never been disciplined in the 10 years prior until the supervisor displayed animosity toward him. Respondent countered that Complainant was not disciplined when making safety complaints in the past, including one directed at the supervisor; the supervisor denied making the statements; and no evidence supported Complainant’s contention that the supervisor made the statements. The ARB noted that Complainant’s evidence had some probative value, but found that it was not enough to cause the ARB to reverse the ALJ’s contributory factor findings.

Fourth, Complainant alleged that pretext was demonstrated by a showing that Respondent’s investigation was flawed. The ARB noted: “The critical inquiry in pretext analysis is ‘whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge,’ rather than ‘whether the employee actually engaged in the conduct for which he was terminated.’” Id. at 14 (footnote and citations omitted). The ARB agreed with Complainant and the ALJ that Respondent’s finding that Complainant attempted to damage company property was based on limited and unreliable evidence. The ARB noted, however, that the ultimate decision-maker could not have been influenced by Complainant’s protected activity when he recommended dismissal, and that the ALJ had accepted Respondent’s witnesses’ testimonies that they believed Complainant had committed the violation. Complainant had not presented any further evidence of pretext.

CONTRIBUTORY FACTOR CAUSATION; UPON DE NOVO REVIEW OF DOL’S GRANT OF SUMMARY DECISION IN FAVOR OF THE RAILROAD, THE SIXTH CIRCUIT DENIED COMPLAINANT’S PETITION FOR REVIEW WHERE THE RECORD LACKED EVIDENCE THAT THE RAILROAD KNEW OR SUSPECTED THAT COMPLAINANT RAISED SAFETY ISSUES WHEN COMPLAINANT – WHO IN ADDITION TO BEING A CONDUCTOR WAS THE LOCAL UNION CHAIR – CALLED A CUSTOMER TO TRY TO OBTAIN A CONFIRMATION OR DENIAL OF THE RAILROAD’S STATEMENT THAT CREWS FROM MICHIGAN WERE BEING REPLACING BY CREWS FROM OHIO BASED ON THE CUSTOMER’S REQUIREMENT

In Cole v. United States Dep't of Labor, No. 20-4075 (6th Cir. Sept. 24, 2021) (unpublished) (2021 U.S. App. LEXIS 29157), the Sixth Circuit denied Cole’s petition for review of the ARB’s affirmance of the ALJ’s grant of summary decision denying Cole’s FRSA retaliation complaint. Cole was a conductor for Norfolk Southern and the local chairman of his union. Cole alleged he was discharged in retaliation for expressing safety concerns that the railroad was going to use Toledo-based crews who were unqualified to work in the Detroit area. When he had expressed those concerns, the railroad replied that its customer, Detroit Edison, required the use of Toledo-based crews. Cole called a Detroit Edison representative asking if Detroit Edison made the decision to use the Toledo-based crews. The representative declined to comment and referred Cole back to the railroad. Cole was eventually discharged based on a charge that this phone call was “conduct unbecoming an employee and detrimental to the interests of Norfolk Southern.” The ALJ found that the phone call was not FRSA protected activity, and the ARB affirmed.

The court found that the record supported the ARB’s conclusion that Cole failed to offer sufficient evidence that any protected activity contributed to the termination. The record indicated that the phone call had the purpose of asking whether Detroit Edison was requiring the railroad to move Michigan jobs to Ohio, and the record did not show that safety concerns about whether the Ohio crews were adequately familiar the territory had been discussed. During the railroad’s investigation, Cole had stated that he made the call in his capacity as a union official, and wanted Detroit Edison to confirm or deny what he had been told by the railroad. Cole also stated that he had been doing due diligence for a civil lawsuit that the railroad had filed against the union and him. Other communications with the Detroit Edition representative prior to the termination reiterated this purpose for the call -- and these communications did not show that safety concerns were discussed. It was only later in a deposition that Cole stated that he conveyed safety concerns to the Detroit Edison representative.

The court stated that summary decision was appropriate on this record, as the record lacked any evidence that Cole or anyone else informed the railroad prior to the termination that Cole had reported safety concerns to Detroit Edison. The court observed that it was not necessary to make a finding of fact on whether safety concerns had been communicated by Cole to Detroit Edison, because even if he did, there was no evidence that it contributed to his termination.
The court found Cole’s argument that he had a good faith belief that Detroit Edison had authority to address safety concerns to be immaterial because there was no evidence that the railroad knew or suspected that Cole informed Detroit Edison of safety concerns.

CONTRIBUTING FACTOR CAUSATION; ALJ DID NOT ERR BY CONSIDERING TRUTH OF COMPLAINANT’S ALLEGATIONS AGAINST COWORKERS AND WHETHER CHARGES BROUGHT AGAINST HIM WERE TRUE IN DETERMINING WITNESS CREDIBLITY

In Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020) (per curiam), Complainant alleged that Respondent “retaliated against him in violation of FRSA’s whistleblower protection provisions for reporting that he saw his co-workers engaging in illegal drug (marijuana) use while operating heavy machines on the rails.” Slip op. at 2. Respondent had removed Complainant from service to investigate charges that he had made a threat against a supervisor. Respondent objected on appeal to the ALJ’s finding of causation because the ALJ had considered whether Complainant actually made threats against a supervisor and whether the drug allegations Complainant made against co-workers were true. Respondent argued that “these are irrelevant considerations because the question is not whether these were true but what the employer believed that is at issue.” Id. at 16. The ARB agreed that “what matters to the causation analysis is what the employer believed rather than the truth of the underlying facts.” Id. However, in the instant case, the ALJ had “thoroughly explained that he was analyzing the underlying facts as a part of his credibility determinations.” Id. The ARB stated that “[t]his fits squarely within the ALJ’s responsibilities as the fact finder.” Id.

Respondent’s Knowledge

KNOWLEDGE ELEMENT OF FRSA RETALIATION CLAIM; DISTRICT COURT FINDS THAT IN THE SEVENTH CIRCUIT, IT IS SUFFICIENT IF THE RAIL CARRIER KNEW OF PLAINTIFF’S REQUEST FOR MEDICAL LEAVE AND DIRECT KNOWLEDGE OF DECISIONMAKERS ON ADVERSE EMPLOYMENT ACTION IS NOT REQUIRED; COURT MAKES ALTERNATIVE FINDING OF SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF KNOWLEDGE TO SURVIVE SUMMARY JUDGMENT

In Gilbert v. Union Pac. R.R. Co., No. 19-cv-804 (N.D. Ill. May 17, 2022) (2022 U.S. Dist. LEXIS 88503; 2022 WL 1556101), the court denied Defendant’s motion for summary judgment on Plaintiff’s FELA and FRSA claims. The court ruled on the motion based on the facts in the light most favor to Plaintiff.

Plaintiff worked as a conductor on commuter train, and was injured in an altercation while removing an unruly passenger. During the altercation, Plaintiff punched the passenger after the passenger had chest bumped him and continued to advance on Plaintiff. Plaintiff was transported to a hospital for a CTS scan to evaluate a head injury, and the trainmaster informed Defendant’s Director of Road Operations about the incident and the hospitalization, who in turn relayed the information to Defendant’s Superintendent of Operations – who visited Plaintiff in the hospital and told him that he had done nothing wrong as he was merely defending himself. After discharge, Plaintiff went to Defendant’s office and spoke to a risk management representative who completed an injury report stating that Plaintiff had sustained injuries and received treatment.

Plaintiff then discussed the incident with the Director of Road Operations who also said Plaintiff had done nothing wrong by defending himself, and that they would see each other on Monday. Plaintiff indicated to this official that he was not injured. Plaintiff also spoke to his supervisor, who completed a manager’s accident/injury report stating that Plaintiff had sustained injuries and received treatment. That night, Defendant’s managers determined that the incident merited a formal investigation. The next day (a Saturday), Plaintiff went to a care facility and was told by a physician that he should not return to work due to his injuries. The following day, Plaintiff requested medical leave, which was temporarily approved pending paperwork. Later that day, however, when Plaintiff called in for relief from duty on Monday, the paperwork had not been received and he was told that he would have to use sick time. After advising his managers that he was seeking a medical leave of absence, their attitude toward him and the incident changed, and he was pulled from service. Defendant has a “zero tolerance” policy concerning violence in the workplace. An investigation ensued, and Plaintiff was terminated from employment. Later, the National Mediation Board found that the evidence did not support a finding that Plaintiff violated Defendant’s work rules, and Plaintiff was reinstated.

One of Defendant's arguments in its summary judgment motion that there was no evidence that the supervisors who decided to terminate Plaintiff knew that he had reported his injury or requested a medical leave of absence, citing caselaw from other circuits that such knowledge must be tied to the decisionmaker involved in the unfavorable personnel action. The court, however, determined that the standard in the Seventh Circuit is that “an FRSA retaliation plaintiff must show only that ‘the rail carrier knew of the [plaintiff's] complaint.’” Slip op. at 12, citing and quoting Armstrong v. BNSF Ry. Co., 880 F.3d 377, 381 (7th Cir. 2018) (emphasis added). The court stated:

Circuit law therefore does not require Gilbert to prove, as part of his prima facie case, that the particular individuals who terminated him knew about his injury report. And it is undisputed that Union Pacific as an entity knew of Gilbert's injury report and request for medical leave, both of which he made through official Union Pacific channels.

Id. (records citation omitted). The court also ruled that even if knowledge was required on the part of the decision-making supervisors, the record contained sufficient circumstantial evidence to survive summary judgment.

CONTRIBUTORY FACTOR CAUSATION; SIXTH CIRCUIT’S CONRAIL TEST’S INCLUSION OF DECISIONMAKER KNOWLEDGE AS PART OF PLAINTIFF’S BURDEN WHEN RESPONDING TO SUMMARY JUDGMENT MOTION; ALLEGATIONS SUPPORTED ONLY BY PLAINTIFF’S OWN ARGUMENT ARE INSUFFICIENT TO RAISE A GENUINE ISSUE OF MATERIAL FACT

In Mangold v. Norfolk S. Ry. Co., No. 21-3059 (6th Cir. Dec. 14, 2021) (not published) (2021 U.S. App. LEXIS 37193; 2021 WL 5904091), Mangold made frequent complaints, reports and notes of locomotive defects and other safety issues. He also, however, had a record of major and minor disciplinary actions under Norfolk’s progressive discipline system. In 2016 Mangold was dismissed from service, but reinstated as part of a settlement agreement settling Mangold’s FRSA retaliation complaint. Once reinstated, Mangold continued to report alleged locomotive defects. In 2017, he received two unfavorable personnel decisions – a letter of reprimand and a dismissal from service. Mangold filed a new FRSA retaliation complaint. The Sixth Circuit determined that the District Court properly granted summary judgment dismissing the complaint.

In the Sixth Circuit, FRSA retaliation cases are analyzed under the test set forth in Consolidated Rail Corp. (“Conrail”) v. United States Dep’t of Labor, 567 F. App’x 334 (6th Cir. 2014). The district court had found that there was no evidence presented to show that the relevant decisionmakers knew that Mangold engaged in protected activity prior to disciplining him. The district court also found that intervening events independently justified the discipline, such that Mangold failed to establish contributory factor causation. Those events were Mangold’s failure to properly shut down his locomotive; speeding; and inattention to duty when he pulled a train out of a crossing without a signal to do so from the dispatcher.

Because the issue had not been raised before the district court, the Sixth Circuit declined to address Mangold’s Presentment Clause argument that the district court improperly legislated in Conrail when it required him to point to evidence that would create a genuine issue of material fact as to whether the decisionmakers had knowledge of the protected activity.

As to whether summary judgment on the knowledge question was correctly granted, the court first noted that Norfolk had presented signed affidavits from the decisionmakers indicating that they were not aware of Mangold’s safety concerns, and even if they had been aware, they would not have considered them as they were irrelevant to the incidents under investigation. Norfolk also cited Mangold’s own testimony indicating that he did not make safety reports to two of the decisionmakers. This evidence thus required Mangold to come forward with specific facts or affidavits to show a genuine issue of material fact. The court stated that what Mangold pointed to in the record were mere allegations supported only by his own argument. Mangold also argued that “his that his reporting was so commonly known that it would have been impossible for a decisionmaker not to have been aware of it.” The court stated: “This is not, however, competent evidence on a motion for summary judgment as ‘these kinds of vague, conclusory statements do not suffice to get a case to a jury.’” Slip op. at 9 (citations omitted).

The court further found that even if the relevant decisionmakers had knowledge of the protected activity, Mangold failed to demonstrate contributory factor causation. Although Mangold cited temporal proximity, the court noted that this alone was insufficient because (1) there is no indication that any decisionmaker had knowledge of Mangold’s protected activities when the disciplinary decisions were made; (2) Mangold’s safety reporting was not raised at any point during Norfolk’s internal investigation and hearing and Mangold’s actions that led to the hearings were intervening events that independently justified the adverse disciplinary action; and (3) there was no evidence that the decisionmakers were influenced by Mangold’s protected activity or by the charging officers’ alleged bias.

Mangold also argued that he should not have been faced with disciplinary charges as he did not violate any rules. The court rejected this argument, noting that “courts do not act as a ‘super-personnel department’ and re-examine an employer’s disciplinary decisions.” Id. at 11 (citation omitted). The court stated: “To do so here would be particularly improper in view of the fact that Mangold has provided scant evidence that anything other than his own negligence motivated the decisions to discipline him.” Id.

CONTRIBUTORY FACTOR CAUSATION; SUMMARY JUDGMENT GRANTED IN FAVOR OF PUBLIC AGENCY WHICH HAD CONTRACTED WITH PLAINTIFF’S EMPLOYER TO PROVIDE COMMUTER RAIL TRANSPORTATION; ALTHOUGH THE PUBLIC AGENCY HAD CONTINUED A BAR IMPOSED BY CSX ON PLAINTIFF’S ACCESS TO THE COMMUTER TRACKS AFTER HAVING GAINED THE AUTHORITY TO LIFT THE BAR, ITS MAINTAINANCE OF THE BAR UNTIL IT LEARNED OF EXONERATING INFORMATION, COULD NOT BE LINKED TO PLAINTIFF’S PROTECTED ACTIVITY; THE RECORD DID NOT SUPPORT ANY RETALIATORY ANIMUS BY THE PUBLIC AGENCY, THERE WAS A LACK OF TEMPORAL PROXIMITY, AND PLAINTIFF DID NOT PRESENT EVIDENCE TO SUPPORT CONSTRUCTIVE KNOWLEDGE OR A CAT’S PAW THEORY

In Beall v. S. Fla. Reg'l Transp. Auth., No. 16-cv-24050 (D.C. Fla. Sept. 1, 2021) (2021 U.S. Dist. LEXIS 165652; 2021 WL 3912652), the court granted Respondents South Florida Regional Transportation Authority’s (“SFRTA”) and Tri-Rail’s motion for summary judgment as to Plaintiff’s retaliation claim under the National Transit Systems Security Act (“NTSSA”), 6 U.S.C. § 1142. Plaintiff was a locomotive engineer for Respondent Veolia Transportation Service, Inc. (“Veolia”), which operated a rail service under contract to Respondent SFRTA, which was a public agency authorized to provide commuter rail transportation. That rail service was Tri-Rail.

Between 2008 and 2012, Plaintiff had repeatedly reported safety concerns to Veolia regarding the visibility of warning signs along the rail line. Plaintiff raised these concerns during town hall meetings in 2009 and 2010, but the SFRTA officials who attended did not recall hearing Plaintiff’s statements about the warning signs. Later, during a test conducted by Veolia consisting of placing a warning sign next to the tracks, Plaintiff failed to slow down or respond. Veolia investigated, and revoked Plaintiff’s locomotive engineering certificate. CSX Transportation (CSX), which at the time had the authority to bar individuals from working on trains operating on the commuter tracks, barred Plaintiff from accessing the tracks as the result of Veolia’s determination. Plaintiff challenged the revocation through the Federal Railroad Administration (“FRA”) and his union. The FRA found that the test was improper and the certificate should not have been revoked -- but that retaliation was not a factor. The union challenge went to arbitration, and after extended litigation, the arbitrator’s determination that Plaintiff’s termination was excessive was affirmed by the Eleventh Circuit in 2017. Veolia had refused to reinstate Plaintiff during the arbitration. SFRTA was not a party, and did not participate in any of these proceedings. In the interim, CSX gave up control of the tracks, and SFRTA gained the authority to lift Plaintiff’s bar. In 2015, Veolia asked SFRTA whether it would continue the bar, informing SFRTA of the status of the arbitration, but not about the FRA’s decision. SFRTA confirmed that it would not lift the bar. In 2016, after learning more about the arbitration, the FRA decision, and a whistleblower action Plaintiff had filed with OSHA, SFRTA lifted the bar. Veolia continued to refuse to reinstate Plaintiff as an engineer until shortly before its contract with SFRTA expired, and rehired Plaintiff as a station ambassador at his previous salary as a locomotive engineer.

In deciding SFRTA’s and Tri-Rail’s motion for summary judgment, the court focused on whether Plaintiff meet his initial burden of establishing a retaliation claim under the NTSSA against SFRTA and Tri-Rail for its decision to continue the CSX bar from March 2015 to November 2016. The court found that Plaintiff failed to establish that his protected activity in 2009 and 2010 was contributing factor in SFRTA’s decision to continue the bar. SFRTA had relied on information from Veolia in continuing the bar. SFRTA’s Governing Board’s actions in 2016 upon learning more about the matter -- immediately seeking additional information from Veolia -- did not reasonably suggest retaliatory animus. Even if SFRTA had not been diligent in seeking the FRA decision, Plaintiff had not connected such alleged inaction to his safety complaints. The court noted the lack of temporal proximity between the protected activity and any alleged adverse action by SFRTA. The court found no actual knowledge by SFRTA of the FRA decision until January 2016. The court was not persuaded by Plaintiff’s argument that SRFTA had constructive knowledge of the FRA decision once it gained authority to lift the bar, finding such a conclusion too attenuated, and noting that Plaintiff presented no evidence showing that SFRTA knew about the FRA decision prior to January 2016 and ignored it in retaliation for Plaintiff’s protected activity. Nor was the court persuaded by Plaintiff’s “cats-paw” theory that the decision to continue the bar had been influenced by two SRFTA officials who had attended the 2009-10 town hall meetings. The court found that Plaintiff did not show that those officials had any animus toward him, or that they made any biased recommendations relied upon by the decision makers, or that SRFTA considered Plaintiff’s protected activity in deciding whether to maintain the bar. The court thus found that Plaintiff failed to establish a prima facie claim of retaliation under the NTSAA on SRFTA’s decision to maintain the CSX bar.

EMPLOYER’S KNOWLEDGE OF PROTECTED ACTIVITY; FOURTH CIRCUIT’S DECISION IN CONRAD DOES NOT REQUIRE PROOF OF DIRECT KNOWLEDGE BY THE DECISION MAKER; CONSTRUCTIVE KNOWLEDGE MAY BE SUFFICIENT

EMPLOYER’S KNOWLEDGE OF PROTECTED ACTIVITY;COURT REJECTS DEFENDANT’S ARGUMENT FOR SUMMARY JUDGMENT THAT IT WAS SO OBVIOUS THAT PLAINTIFF’S PROTECTED ACTIVITY WAS TAKEN IN BAD FAITH THAT EMPLOYER COULD NOT BE IMPUTED WITH KNOWLEDGE OF PROTECTED ACTIVITY

In Taylor v. Union Pac. R.R. Co., No. 18-1110 (M.D. La. Mar. 12, 2021) (2021 U.S. Dist. LEXIS 47301), the court denied Defendant’s motion for summary judgment on Plaintiff’s FRSA retaliation complaint. Citing Conrad v. CSX Transp., Inc., 824 F.3d 103 (4th Cir. 2016), one of Defendant’s contentions was that Plaintiff must do more than merely demonstrate that the employer, as an entity, was aware of the protected activity, and that, in the instant case the sole decision maker on Plaintiff’s termination from employment denied having knowledge of the protected activity. The court was not persuaded, finding that the Conrad court did not require direct knowledge of the decision maker, and had only ruled that “[t]he ‘knowledge’ relevant for a retaliation claim under the FRSA must be tied to the decision-maker involved in the unfavorable personnel action.” Slip op. at 13, quoting Conrad, supra, 824 F.3d at 108 (emphasis added). Here, there were indications in the record of constructive knowledge by the decision-maker in the form of an e-mail on which he had been copied.

The court was not persuaded by Defendant’s additional argument, which was essentially that Plaintiff’s bad faith was so obvious that Defendant could not have been aware of any good-faith protected activity. The court noted that under relevant legal standards, Plaintiff’s actions could be viewed as taken in good faith – and that the FRSA regulations only require that the employer “knew or suspected that the employee engaged in the protected activity,” – and not that it knew the protected activity was undertaken in good faith.

CONTRIBUTING FACTOR CAUSATION; SUMMARY JUDGMENT; CIRCUMSTANTIAL EVIDENCE INSUFFICIENT TO OVERCOME FATAL FLAW IN COMPLAINT THAT DECISIONMAKERS ON TERMINATION WERE NOT AWARE OF PLAINTIFF’S PROTECTED ACTIVITY; CAT’S PAW THEORY OF LIABILITY FAILED WHERE CHARGES AGAINST PLAINTIFF WERE BROUGHT BY CHARGING OFFICER, AND MULTIPLE WITNESSES SUPPORTED CHARGE OF VIOLATION OF WORKPLACE VIOLENCE POLICY

In Petronio v. Amtrak, No. 19-3624 (2d Cir. Dec. 2, 2020) (unpublished) (2020 U.S. App. LEXIS 37585; 2020 WL 7050189), the Second Circuit, conducting de novo review, determined that the District Court correctly granted summary judgment to the Appellee/Defendants on Petronio’s FRSA retaliation complaint. On appeal, Petronio argued that the district court ignored circumstantial evidence that his safety reports were a contributing factor in termination of his employment, and improperly rejected his “cat’s paw” theory of liability.

The court, however, found “no evidence that the Amtrak officers who decided to charge, convict, and terminate Petronio for his violation of Amtrak’s workplace policies were aware of Petronio’s safety reports. Petronio’s purported circumstantial evidence that his safety reports were a contributing factor to his termination—such as temporal proximity between the safety reports and his termination, or alleged hostility to his safety reports from Amtrak employees without decision-making power—cannot overcome this fatal defect.” Slip op. at 2.

The court also found the cat’s paw theory inapplicable under the facts of the case where the charging officer was responsible for bringing the charges against Petronio, and not the Assistant Division Engineer that Petronio claimed was biased against him; and where the termination decisionmakers relied on the testimony of multiple witnesses in concluding that Petronio had violated workplace policies. The court also found that even if the Assistant Division Engineer played a meaningful role in the decisionmaking process, no reasonable jury could find by a preponderance of the evidence that the safety reports were a contributing factor in the Assistant Division Engineer actions in the disciplinary proceedings, that person haven taken no actions adverse to Petronio until after learning of Petronio’s potential violations of workplace violence policies. The court found that Petronio’s allegations of hostility by the Assistant Division Engineer were insufficient to show bias.

DISTRICT COURT’S DECLINATION OF JURY INSTRUCTIONS ON DECISION-MAKER KNOWLEDGE WAS NOT AN ABUSE OF DISCETION WHERE RAILROAD HAD NOT PUT ON EVIDENCE OR ARGUED THAT DECISION MAKERS WERE UNAWARE OF PLAINTIFF’S FRSA PROTECTED ACTIVITY

BNSF did not present any evidence, argue before the jury, or contend on appeal that its decision-makers were unaware of Wooten’s protected activity. Even if decision-maker knowledge is required under the FRSA, any error was harmless—there was ample evidence that BNSF’s decision-makers were aware of Wooten’s protected activity. See Wilkerson, 772 F.3d at 838 (“[I]f any error relating to the jury instructions was harmless, we do not reverse.”).

Slip op. at 3.

Chain of Events / Inextricable Intertwinement

CONTRIBUTORY FACTOR CAUSATION; INEXTRICABLY-INTERTWINED/CHAIN-OF-EVENTS CAUSATION WAS REJECTED IN THORSTENSON; ALJ MUST BE CAREFUL TO EVALUATE CIRCUMSTANTIAL EVIDENCE IN THE CONTEXT OF CONDUCT PROTECTED BY THE FRSA AND NOT AS TO GENERALIZED IMPROPRIETY OF RESPONDENT’S ACTIONS

NINTH CIRCUIT’S REVERSAL OF ARB’S DECISION IN THORSTENSON; ARB EXPLAINS THAT, IN LIGHT OF THE COURT’S ABBREVIATED DISCUSSION IN AN UNPUBLISHED OPINION, THE ARB WILL CONTINUE TO ADHERE TO ITS OPINION THAT APPLYING AN INEXTRICABLY-INTERTWINED OR CHAIN-OF-EVENTS ANALYSIS FOR THE ISSUES OF CAUSATION AND THE SAME-ACTION DEFENSE IS REVERSIBLE ERROR

In Klinger v. BNSF Railway Co., ARB No. 2019-0013, ALJ No. 2016-FRS-00062 (ARB Mar. 18, 2021), the ARB remanded the case to the ALJ to reassess the contributory factor and “same-action” defense elements of the case because the ALJ had cited and applied the “inextricably intertwined” analysis that later had been rejected by the ARB in Thorstenson v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019), rev'd, Thorstenson v. United States Dep’t of Labor, 831 F. App’x 842, 843 (9th Cir. 2020) (see below for the ARB's interpretation of the impact of the 9th Circuit's reversal).

ALJ appears to have applied “but for” reasoning

The ARB found that it appeared that the ALJ determined that Complainant’s reporting of an injury contributed to his suspension because it prompted his automatic enrollment in Defendant’s voluntary Medical Care Management Program (MCMP), which in turn – as unfairly applied – resulted in discipline of Complainant. Essentially, Complainant – who was on an extended disability leave – had not been responsive to medical information requests from the MCMP’s field manager, and eventually the Division’s General Manager directed Complainant to provide the information – but this time as an order of the employer rather than a request from the MCMP. Complainant’s failure to ensure that the medical information was timely delivered resulted in a 30 day suspension. The ARB elaborated: “Stated another way, the ALJ appears to have found that the MCMP never would have been invoked, and Klinger therefore never would have been unreasonably disciplined for his refusal to provide his medical information as part of that program, but for his reporting of a workplace injury.”

The ARB reviewed the ALJ’s decision and concluded that it could not ascertain “whether the ALJ would have concluded that Klinger’s protected activity contributed to his suspension had he not applied the inextricably intertwined analysis to link BNSF’s objectionable conduct to Klinger’s reporting of a workplace injury.” Slip op. at 9.

ALJ appears to have been influenced by Respondent’s general objectionable conduct

The ARB also determined that the ALJ’s contributory factor causation analysis had been driven in part by a conclusion that BNSF’s decision to discipline Complainant was egregious and unfair; that the BNSF’s conduct had been misleading, heavy-handed and an unfair departure from company policy; and that BNSF’s attempts to obtain Complainant’s medical records was an unreasonable invasion of Complainant’s privacy. The ARB stated that, even if this was true, it did not necessarily establish contributory factor causation. The ARB stated: “Although BNSF may have engaged in objectionable conduct, and although that objectionable conduct may be sequentially linked to Klinger’s reporting of a workplace injury, the ALJ must nevertheless assess whether Klinger’s protected activity, alone or with other factors, actually influenced BNSF’s conduct.” Id. at 12 (footnote omitted). The ARB continued:

We do not discount the possibility that the ALJ may appropriately find on remand that the way BNSF treated Klinger in the context of the MCMP and its demands for his medical records constitutes circumstantial evidence that Klinger’s reporting of a workplace injury contributed to BNSF’s decision to suspend him. As the Board has repeatedly emphasized, a complainant’s protected activity need only be one, even insubstantial, factor in the employer’s adverse action, and may still “contribute” to the adverse action even if other factors also influenced the decision. We have also often stated that inconsistent application of a company’s policies could be circumstantial evidence of retaliation. The ALJ may also consider other circumstantial evidence, including temporal proximity, shifting explanations for BNSF’s actions, antagonism or hostility towards Klinger’s protected activity, the falsity of BNSF’s explanation for the adverse action taken, or a change in BNSF’s attitude towards Klinger after he engaged in protected activity.

However, it is crucial on remand that the ALJ not simply evaluate the merits of the MCMP, BNSF’s deviations from the MCMP policy as described on paper, or the fairness of BNSF’s conduct in its interactions with Klinger in the abstract, independent of whether the reporting of Klinger’s workplace injury itself influenced that conduct in some way. Similarly, the ALJ should not merely assess the general propriety or validity of BNSF’s demands for Klinger’s medical records and the potential invasion of his privacy rights that may come from requesting medical records. It is not enough that the reporting of a workplace injury may have been the incidental factual or initiating predicate for the unfair, unreasonable, or objectionable conduct that followed with the MCMP. If the ALJ reaches the same outcome on remand, he should explain how these findings, or others, support the ultimate conclusion that Klinger’s reporting of an injury contributed to his suspension, without utilizing the inextricably intertwined analysis and without casting it as a mere sequential link to Klinger’s protected activity.

Id. at 12-13 (footnotes omitted). The ARB found that the same errors in the causation analysis impacted the ALJ’s analysis of the same-action defense.

ARB explains that it will continue to adhere to its interpretation in Thorstenson regarding inextricably intertwined and chain of events analyses despite the Ninth Circuit’s unpublished reversal

In footnote 58 of the slip opinion, the ARB addressed the Ninth Circuit’s unpublished reversal of the ARB’s decision in Thorstenson. The Ninth Circuit had held that “the ARB imposed a new burden of proof for causation under which FRSA claimants must demonstrate that the protected activity was a proximate cause of the adverse action. A proximate cause standard is inconsistent with this circuit’s law regarding the requirements of the FRSA, which requires plaintiffs to prove only that their protected conduct was a ‘factor, which alone or in connection with other factors, tended[ed] to affect in any way the outcome of the decision.’ Frost v. BNSF Ry. Co., 914 F.3d 1189, 1195 (9th Cir. 2019) (quoting Rookaird v. BNSF Ry. Co., 908 F.3d 451, 461 (9th Cir. 2018)….” Thorstenson, 831 Fed. F. App'x at 843.

In the footnote in Klinger, the ARB noted that the Ninth Circuit’s decision was “abbreviated and unpublished,” and appeared to rely on a “more rigorous definition of ‘proximate case’ than the ARB’s citation,” and “did not discuss the Board’s principal holding in Thorstenson that the inextricably intertwined and chain of events analyses were improper substitutes for the statutory causation and same-action defense analyses.” Slip op. at 9, n.58.

Accordingly, the ARB concluded: “Absent elaboration or further guidance from the Ninth Circuit, and in light of the unpublished nature of the Ninth Circuit’s reversal, we continue to adhere to our opinion that applying an inextricably intertwined or chain of events analysis for the issues of causation and the same-action defense is reversible error.” Id.

Dissent finds that ALJ’s analysis had been consistent with the ARB’s Thorstenson decision

One member of the ARB dissented. This member concluded that the ALJ had not strictly or exclusively applied an inextricably-intertwined or chain-of-events causation analysis, and instead conducted an analysis consistent with the principles expressed by the ARB in Thorstenson. The ALJ had weighed the evidence, and had acknowledged that intervening events could break a chain of events. This member found that the ALJ had not committed legal error, and, that substantial evidence supported the ALJ’s factual findings. In view of the age of the case, this member would have brought the case to closure rather than remanding merely for the ALJ to refine his opinion.

CONTRIBUTING FACTOR CAUSATION; ARB REMANDS WHERE ALJ APPLIED “INEXTRICABLY INTERTWINED” ANALYSIS IN DECISION RENDERED PRIOR TO ARB’S REJECTION OF THAT ANALYSIS IN THORSTENSON; ARB ALSO DIRECTS ALJ TO FOLLOW NINTH CIRCUIT’S ANALYSIS IN FROST

In Rothschild v. BNSF Railway Co., ARB No. 2019-0022, ALJ No. 2017-FRS-00003 (ARB Nov. 30, 2020), the ALJ had found that “Complainant met his burden of demonstrating contributing factor causation because the adverse action and protected activity in the present matter were ‘inextricably intertwined’ because there was no way to explain Respondent’s disciplinary decision without referring to Complainant’s injury report. ” Slip op. at 2 (footnote omitted). The ALJ’s decision, however, had been issued prior to the ARB’s decision in Thorstenson v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019), in which the ARB rejected the “inextricably intertwined” and “chain of events” theories for creating a presumption of causation. The ARB thus remanded for further proceedings consistent with Thorstenson, and the Ninth Circuit’s analysis in Frost v. BNSF Ry. Co., 914 F.3d, 1189, 1195 (9th Cir. 2019).

CONTRIBUTING FACTOR CAUSATION IN FRSA CASE; ARB REMANDS CASE ARISING IN EIGHTH CIRCUIT FOR FURTHER PROCEEDINGS IN LIGHT OF ARB’S REJECTION OF “INEXTRICABLY INTERTWINED” ANALYSIS IN THORSTENSON, AND THE EIGHTH CIRCUIT’S REQUIREMENT OF PROOF OF INTENTIONAL RETALIATION

In Colley v. Union Pacific Railroad Co., ARB No. 2018-0063, ALJ No. 2017-FRS-00071 (ARB Nov. 6, 2020), the ALJ found that Complainant established contributing factor causation under the FRSA retaliation provision. In making this finding, the ALJ applied the “inextricably intertwined” analysis. On appeal, the ARB noted that after the ALJ had issued her Decision in Colley, the ARB held in Thorstenson v. BNSF Ry. Corp., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019), that ALJs should not apply the “inextricably intertwined” or “chain-of-events” analysis to create a presumption of causation. The ARB also noted that the Colley case arose in the Eighth Circuit, and that the U.S. Court of Appeals for the Eighth Circuit had held that an employee must prove intentional retaliation by the employer. See Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014); BNSF Ry. Co. v. U.S. Dep’t of Labor Admin. Review Bd., 867 F.3d 942, 946 (8th Cir. 2017); Dakota, Minn. & E. R.R. Corp. v. U.S. Dep’t of Labor Admin. Review Bd., 948 F.3d 940, 947 (8th Cir. 2020) (unequivocally rejecting the chain-of-events and inextricably intertwined theories of causation). The ARB thus remanded the case to the ALJ for further proceedings.

ARB’S REJECTION OF “INEXTRICABLY-RELATED” CAUSATION ANALYSIS

In Perez v. BNSF Railway Co., ARB Nos. 2017-0014 and -0040, ALJ No. 2014-FRS-00043 (ARB Sept. 24, 2020) (per curiam), the ARB remanded because the ALJ had applied the “inextricably intertwined” analysis in finding that a causal relationship existed between protected activity and adverse action. This analysis had been overturned by the ARB in 2019 in Thorstensen v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052, slip op. at 10 (ARB Nov. 25, 2019).

CONTRIBUTING FACTOR CAUSATION; SIXTH CIRCUIT REJECTS CHAIN-OF-EVENTS THEORY OF CAUSATION

In Lemon v. Norfolk Southern Railway Co., 958 F.3d 417 (6th Cir. Apr. 30, 2020) (No. 19-3906) (2020 U.S. App. LEXIS 13927), Plaintiff-Appellant had given varying accounts of whether he had been injured on the job, or at home — and how the injury happened. The railroad, applying its policy of firing workers who make false statements at work, conducted a hearing, and afterwards fired Plaintiff for dishonesty. Plaintiff then filed a FRSA complaint with OSHA alleging retaliation for reporting a workplace injury in good faith. The complaint was ultimately kicked-out to Federal district court. The district court granted summary judgment, concluding that, because of Plaintiff’s dissembling, there was no dispute about whether the injury report was in good faith. On appeal, the Sixth Circuit questioned whether “contributing factor” causation/affirmative defense legal framework was the correct standard, but decided the appeal on that basis because the parties agreed that it applied and briefed the case on that basis. The court found that the injury report was not a contributing factor in the railroad’s decision to fire Plaintiff, and that the record confirmed that the railroad would have fired Plaintiff due to his false statements. The court noted that the railroad’s investigation was about the false statement and that was what the decisionmaker had stated.

Plaintiff’s contended that there was a fact dispute concerning whether the railroad “regularly cooks up pretextual reasons for discipline to retaliate against people who file injury reports.” Slip op. at 4. The court found problems with this argument: (1) such vague, conclusory statements are insufficient to get a case to a jury; (2) the statements in this case were inadmissible hearsay; (3) even if the railroad had such a policy, Plaintiff had not shown that the railroad retaliated against Plaintiff in particular. In contrast, the record showed that the railroad regularly enforced its false statements policy; Plaintiff admitted that discipline was appropriate for false statements; and Plaintiff stated that he had never been discouraged from reporting his injury or threatened with retaliation for it.

Plaintiff contended that “that his injury report was a contributing factor in the railroad’s decision to fire him because, without the injury report, he would not have lied to his supervisor about speaking to others, and, without that falsehood and others discovered later, he would not have been fired.” Id. at 5. The court rejected this chain-of-events theory of causation, first “because it’s hard to think of any event in a person’s life that could not be viewed as a contributing factor under this theory” and second “because it would authorize employees to engage in banned behavior so long as it occurs during protected conduct.” Id. at 5-6.

CONTRIBUTORY FACTOR CAUSATION WHERE PROTECTED ACTIVITY LEADS TO DISCOVERY OF A DISCHARGEABLE OFFENSE; FIFTH CIRCUIT FINDS THAT THE WEIGHT OF THE FEDERAL APPELLATE CASELAW SUPPORTS THE ARB’S DECISION IN THORSTENSON TO ABANDON “INEXTRICABLY INTERTWINED” OR “CHAIN OF EVENTS” ANALYSIS; ARB FOUND NOT TO HAVE ERRED IN DETERMINING THAT RAILROAD DID NOT VIOLATE THE FRSA WHEN IT FIRED COMPLAINANT FOR FAILING TO IMMEDIATELY REPORT A WORKPLACE INJURY AS REQUIRED BY COMPANY POLICY

In Yowell v. Administrative Review Board, USDOL, No. 20-60274 (5th Cir. Apr. 12, 2021) (2021 WL 1344004), the Fifth Circuit found that the ARB did not err in “in finding that the railroad terminated the petitioner's employment for failing to comply with his obligation to report promptly all known injuries and that his eventual acknowledgement of the injury was not a ‘contributing factor’ for purposes of the FRSA.” Slip op. at 2.

Yowell reported a workplace-placed related injury to his knee. The railroad learned that he had actually injured his knee the week before. Because this was a violation of company policy that all injuries, no matter how small, must be reported immediately, Yowell’s employment was terminated. An ALJ found in Yowell’s favor, but the ARB reversed. On appeal, the only dispute was whether the protected activity was a contributing factor to the termination.
The court framed the issue as “how to evaluate a factual scenario in which an employee's protected act itself reveals, or at least leads to the discovery of, conduct for which discipline is otherwise appropriate.” Id. at 6. The ALJ had applied the “inextricably intertwined” standard. In reversing the ALJ, the ARB had explained that in Thorstenson v. BNSF Ry. Co., ARB Nos. 18-059, -060, ALJ No. 2015-FRS-052, slip op. at 10 (ARB Nov. 25, 2019), the ARB stated that it would no longer require ALJs to apply the “inextricably intertwined” or “chain of events” analysis. In Thorstenson v. U.S. Dep't of Lab., 831 F. App'x 842, 843 (9th Cir. 2020), the Ninth Circuit rejected the ARB’s new approach, but in a non-precedential decision. The court found that this Ninth Circuit decision stands alone in rejecting the ARB’s Thorstenson decision. Reviewing contributory cause analysis by other circuits, the Fifth Circuit concluded that “There is consistent support in other circuits' analysis for what the ARB decided in this case and little authority that disagrees. We do not disagree either.” Slip op. at 15. The court summarized:

Under the FRSA, when an employee engages in a protected activity such as reporting a workplace injury, that employee is not insulated from what would otherwise be appropriate discipline for misconduct that becomes known to the employer at that time or during the course of the employer's addressing the protected activity. In simple terms, a protected activity does not by itself shield an employee from the ramifications of workplace misconduct.

Id. Applying this standard to the facts of the case, which contained no evidence that the railroad attempted to prevent Yowell’s report or to discourage him from reporting, the court found no error in the ARB’s allowing the railroad to terminate Yowell’s employment for violating the employee handbook work and safety rule. The court agreed with the ARB holding that “an employee may not rely solely on the fact that a protected activity is what informed the employer of wrongdoing. Instead, the focus must be on the employer's actions after learning of wrongdoing. There is unchallenged evidence in the record that it was not the fact of reporting an injury but the failure to report promptly an earlier injury that caused Yowell to be discharged.” Id. at 16.

One member of the Fifth Circuit panel concurred, stating: “I concur with the understanding that the ultimate holding of this opinion is, simply and succinctly: The protected activity provision cannot be interpreted to shield an employee from proper disciplinary action when the employee breaches a valid, established, and unchallenged work rule, and no legal legerdemain can make it otherwise.” Id. at 17.

CONTRIBUTORY FACTOR CAUSATION AND AFFIRMATIVE DEFENSE; WHERE ALJ FOUND THAT RESPONDENT FIRED COMPLAINANT FOR VIOLATION OF ITS POLICY ON TIMELY REPORTING OF INJURIES, ARB DISMISSED THE COMPLAINT

CONTRIBUTORY FACTOR CAUSATION AND AFFIRMATIVE DEFENSE; ARB NO LONGER APPLIES “INEXTRICABLY INTERTWINED” AND “CHAIN OF EVENTS” CAUSATION ANALYSIS

CONTRIBUTORY FACTOR CAUSATION; ARB NOW FOLLOWS EIGHT’S CIRCUIT’S KUDUK INTENTIONAL RETALIATION STANDARD

In Yowell v. Fort Worth & Western R.R., ARB No. 2019-0039, ALJ No. 2018-FRS-00009 (ARB Feb. 5, 2020) (per curiam), Complainant alleged retaliation in violation of the FRSA by Respondent for his report of a workplace injury. OSHA found no violation, but the ALJ did and awarded relief to Complainant. On appeal, the ARB reversed, vacated the award of relief, and dismissed the complaint.

When Complainant reported an injury to his knee, he gave inconsistent statements about where the injury had occurred, and eventually disclosed that he had injured his knee the week before but did not report the injury until he felt pain. Respondent had a very strict policy requiring timely reporting of injuries, no matter how small. Respondent’s General Director of Operating Policies testified that injuries must be reported even if no pain is experienced so that the scene may be investigated for safety. Respondent’s Chief Transportation Officer testified that Complainant was terminated from employment because the late reporting of the incident had prevented Respondent from investigating the scene to ensure that it was safe. Complainant testified that the only reason he was fired was for late reporting.

The ARB affirmed the ALJ’s findings of protected activity and adverse employment action, but found that the ALJ erred in his contributory factor causation analysis. The ALJ applied the “inextricably intertwined rule,” finding that had there been no protected report, Complainant would not have been disciplined. On appeal, the ARB agreed with Respondent that it was error for the ALJ to apply “chain-of-events” causation. The ARB stated:

As we explained in Thorstenson, the ARB no longer requires that ALJs apply the "inextricably intertwined" or "chain of events" analysis. Thorstenson v. BNSF Ry. Co., ARB Nos. 18-059, -060, ALJ No. 2015-FRS-052, slip op. at 10 (ARB Nov. 25, 2019) ("We note that the plain language of the statute does not include the term "inextricably intertwined." Rather, this is a construction that substitutes for, and in some cases circumvents, the ALJ's contributing factor or affirmative defense analyses."). By placing the focus on how the employer came to learn of the employee's wrongdoing rather than the employer's actions based on that wrongdoing or protected activity, "chain of events" causation departs from the statute's "contributing factor" text. Id. at 10.

Slip op. at 7. For the same reasons, the ARB determined that the ALJ’s application of "inextricably intertwined" reasoning to find that Respondent could not prevail in its same-action defense was error.

The ARB determined a remand was not necessary. It noted that the ALJ had made thorough findings of fact showing that the termination was based solely on late reporting of the injury, and that the ALJ found that Complainant was not credible and that Respondent’s witnesses were credible. The ARB determined that these findings of fact and credibility determinations established that Respondent proved its affirmative defense that it would have fired Complainant for late reporting even in the absence of protected activity. The ARB noted that “[i]n Samson v. U.S. Dep't of Labor, 732 Fed. Appx. 444 (7th Cir. 2018), the 7th Circuit determined that the ALJ’s error on the element of protected activity did not require remand and that remand would be ‘pointless’ because the issue of causation permitted only one result; this is so because of the deference given to the ALJ's credibility findings. Id. at 446-47….” Slip op. at 9-10 (addition citations omitted).

[Editor’s note: To put this decision in perspective, the ALJ issued his decision on February 20, 2019. He provided a detailed discussion of ARB authority in effect at the time. The ALJ concluded that the precedent indicated that ALJs should apply an “inextricably intertwined, presumptive inference of causation….” ALJ decision at 41 (citations omitted). Moreover, the ALJ expressly followed precedent from outside the Eighth Circuit (and noted that this case did not arise in the Eighth Circuit) to conclude that the Kuduk intentional retaliation standard did not apply, and that a complainant is not required to show Respondent had a retaliatory motive in terminating him due to a late report of injury. ALJ decision at 42. The ARB’s Thorstenson decision rejecting "inextricably intertwined" or "chain of events" analysis was not issued until November of 2019.

It is also noted that in Yowell, the ARB cited Kuduk favorably in discussing contributory factor analysis. The ARB wrote:

To establish a violation under the FRSA, a complainant must show that the protected activity was a “contributing factor” in the adverse employment action. 49 U.S.C. § 20109(d)(2)(A), referring to 49 U.S.C. § 42121(b)(2)(B)(i). “A ‘contributing factor’ includes ‘any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.’” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 461-62 (9th Cir. 2018), quoting Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969 (8th Cir. 2017). “[T]he contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014). In satisfying this statutory standard, a complainant need not prove a retaliatory motive beyond showing that the employee's protected activity was a contributing factor in the adverse action. Araujo u. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 158 (3d Cir. 2013).

Compare the Eighth Circuit’s recent decision in Dakota, Minn. & E. R.R. Corp. v. United States Dep't of Labor Admin. Review Bd., No. 18-2888 (8th Cir. Jan. 30, 2020) (2020 U.S. App. LEXIS 2978; 2020 WL 486843), in which the court roundly criticized the ARB’s unfavorable analysis of Kuduk in Riley v. Dakota, Minn. & E. R.R. Corp., ARB Nos. 16-010, -052, ALJ No. 2014-FRS-00044 (ARB July 6, 2018) (see especially n. 13).

It is now clear that the ARB has rejected its earlier precedent instructing, or at least implying, that ALJs should apply an “inextricably intertwined” standard to contributory factor causation, and should not follow the Kuduk intentional retaliation standard.]

CONTRIBUTORY FACTOR CAUSATION; ARB OVERTURNS PRIOR ARB PRECEDENT ON “CHAIN OF EVENTS” AND “INEXTRICABLY INTERTWINED” ANALYSIS

In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), the ALJ, applying ARB precedent, relied on “chain of events” or “inextricably intertwined” analysis to conclude that Complainant’s protected activity of filing an injury report contributed to a Notice of Investigation and imposition of a violation for untimely filing of the report. The ARB quoted the ALJ’s finding that “there cannot be a late report unless there is a report, and the report is protected.”

In its en banc decision, the ARB announced that it was overturning its prior rulings on “inextricably intertwined” and “chain of events” causation analysis. See, e.g., DeFrancesco v. Union R.R. Co., ARB No. 10-114, ALJ No. 2009-FRS-00009 (ARB Feb. 29, 2012). The ARB stated:

We take this opportunity to clarify that we no longer require that ALJs apply the “inextricably intertwined” or “chain of events” analysis. We note that the plain language of the statute does not include the term “inextricably intertwined.” Rather, this is a construction that substitutes for, and in some cases circumvents, the ALJ’s contributing factor or affirmative defense analyses.

By placing the focus on how the employer came to learn of the employee’s wrongdoing rather than the employer’s actions based on that wrongdoing or protected activity, “chain of events” causation departs from the statute’s “contributing factor” text. In Gunderson v. BNSF Ry. Co., the Eighth Circuit noted that Congress did not intend to insulate wrongdoing because the employee engaged in protected activity. 850 F.3d 962, 969-70 (8th Cir. 2017) (“An employee who engages in protected activity is not insulated from adverse action for violating workplace rules, and an employer’s belief that the employee committed misconduct is a legitimate, non-discriminatory reason for adverse action.”). The Seventh Circuit has also criticized the inextricably intertwined doctrine, noting that reporting the injury is not a proximate cause to the termination when the employee is terminated for carelessness in creating the injury or for some other conduct discovered as part of the review process initiated by the report of the injury. Koziara v. BNSF Ry. Co., 840 F.3d 873, 877 (7th Cir. 2016) (“[p]roximate causation creates legal liability, ‘proximate’ denoting in law a relation that has legal significance”). We agree with this analysis.

This is not to say that an ALJ may not find that an adverse action and protected activity are intertwined such that contributing factor causation is factually established. For these cases, the ALJ must explain how the protected activity is a proximate cause of the adverse action, not merely an initiating event. Koziara, 840 F.3d at 877 (finding that the district court erred in relying on the fact that the “injury report initiated the events that led to his discipline”). In Koziara, the Seventh Circuit held that the “[the district court] failed to distinguish between causation and proximate causation. The former term embraces causes that have no legal significance. Had the plaintiff never been born or never worked for BNSF he would neither have been hurt by the plank flung at him by the energetic front-end loader nor have stolen railroad ties from the railroad. But that doesn’t mean that his being born or his being employed by the railroad were legally cognizable [proximate] causes of his being fired.” Id. at 877.

Slip op. at 10-11 (footnote omitted).

CONTRIBUTORY FACTOR CAUSATION; INTERFERENCE WITH MEDICAL TREATMENT; ARB EXPRESSES SKEPTICISM OF ALJ’S CHAIN OF CAUSATION ANALYSIS, CITING FEDERAL COURT DECISIONS ADDRESSING IMPORT OF PROXIMATE CAUSATION AND INTERVENING EVENTS

In Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam), Complainant alleged that Respondent interfered with his medical treatment in violation of 42 U.S.C. § 20109(c)(1). The ALJ found that Complainant established contributory factor causation. The ALJ found temporal proximity between the treatment plan and censures of Complainant because Complainant’s treatment and light-duty work status were ongoing dating from his injury through to when he received his censures. The ALJ also found that Complainant’s treatment plan and the censures were inextricably intertwined and satisfied the contributing-factor standard. This, according to the ALJ’s findings, was because co-workers were upset about Complainant’s light duty and non-work, and a co-worker was likely the source behind the complaint about Complainant’s wasting work time. The ALJ found that this animosity formed the reason for the coworker’s complaints to Complainant’s supervisor. The ARB did not affirm this aspect of the ALJ’s decision. It noted that it did not necessarily endorse the chain of causation upon which the ALJ relied, citing BNSF Ry. Co. v. U.S. Dep’t of Labor, 867 F.3d 942, 946-49 (8th Cir. 2017) (examination of chain of causation); Koziara v. BNSF Ry. Co., 840 F.3d 873, 877 (7th Cir. 2016) (distinction between causation and proximate causation); and; Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014) (context of intervening events). The ARB, however, did not resolve the question because it affirmed, as supported by substantial evidence, the ALJ’s additional determination that Respondent satisfied its affirmative defense by clear and convincing evidence that it would have censured Complainant for violating company use of time policy even if Complainant had not been following the treatment plan of a treating physician. The ARB stated that the ALJ properly discounted the fact that Respondent Learned of Complainant’s wrongdoing through an investigation, and noted that the ALJ had found that monitoring employee performance and use of time were normal and routine actions. In short, Respondent would have censured Complainant even if he were not following the treatment plan of physicians, those censures having arisen from misconduct.

The ARB noted that Respondent had submitted a tabular exhibit with information about all the other employees that it disciplined over a particular time frame. The ARB noted that the ALJ found that this history of discipline was “not itself conclusive, as it could not accurately isolate for injuries, but when considered in conjunction with [Respondent’s Chief Engineer’s] testimony, the exhibit supported [Respondent’s] affirmative defense.” Slip op. at 21. The ARB also noted that

The ALJ reasoned that co-workers’ frustrations were not due to Wevers’s work-related injury or treatment plan but rather it was the fact that his work was not being completed and work time was being wasted. . . . The co-workers’ bias and hostility generated the complaint, which in turn triggered an independent investigation. This investigation revealed a violation of company policy independent of Wevers’s protected activity. The proximate cause of the April censure letter was Wevers’s failing to attend the medical appointment; the proximate cause of the October censure was Wevers’s abusing company time during a performance review.

Id. The ARB thus affirmed the ALJ’s finding that Respondent “would have censured Wevers for abuse of company time because he was not doing his job even if he had not engaged in protected activity by following the treatment plan of a treating physician.” Id.

CONTRIBUTORY FACTOR CAUSATION; INEXTRICABLY-INTERTWINED THEORY; ARB DID NOT ADDRESS WHERE MULTIPLE FACTORS SHOWED LATE REPORT OF INJURY CONTRIBUTED TO DISCHARGE

Background

Complainant was clearing snow between tracks when his tractor was hit by locomotives. After an investigation, Respondent’s superintendent found that Complainant was responsible for the collision. Prior to the investigatory hearing, Complainant had seen a chiropractor twice, and then saw his physician who diagnosed cervical and lumbosacral strain with myospasm and associated headaches due to the accident.

When called in with his union representative for the purpose of having Complainant sign a letter imposing a penalty for violation of Respondent’s rule requiring being alert and attentive on duty, Complainant declined to sign, and then filed an employee injury report based on the collision. Complainant stated that he had first noticed symptoms afterwards and had mentioned to his foreman having sore neck on at least two occasions. Complainant’s foreman was asked by Respondent to prepare a statement. The foreman stated that he had asked Complainant several times if he was OK, to which Complainant replied that he was fine. But, the foreman acknowledged that at one point when he informed Complainant’s co-workers that Complainant wasn’t hurt, Complainant grabbed his neck and said, “I don’t know about that.” Subsequently, Respondent opened an investigation into whether Complainant had been insubordinate for refusing to sign the disciplinary letter, falsely stating that he had earlier informed his foreman about his injury, and failing to comply with safety rules and to report his injuries promptly.

Following an investigatory hearing, the hearing officer and a foreman sent their conclusions to management officials that Complainant violated Respondent’s safety rule and the CBA by failing to file a written report of injury, and that Complainant had been dishonest in asserting that he reported the injury late because he believed the investigation was a conspiracy to blame him for the accident and he wanted to bring the matter to a head. Respondent then fired Complainant.

On appeal, Respondent challenged the ALJ’s determination that Complainant’s injury report and his termination were “inextricably intertwined” because the protected activity of reporting the injury was the underlying act supporting Respondent’s justification for the termination.

Complainant does not have the burden to establish intentional discriminatory animus

Respondent contended that “under the FRSA, a complainant must prove that an employer’s intentional discriminatory animus against the complainant’s protected activity, and not merely the complainant’s protected activity alone, is a contributing factor in an employer’s adverse action.” Slip op. at 10. The ARB rejected this contention:

[F]or the reasons the Board has repeatedly stated in its previous decisions, we decline to hold that an employee must prove a separate discriminatory or retaliatory animus, motivation or intent in order to establish that his protected activity was a contributing factor to the adverse employment action alleged in the complaint. Proof of the causal relationship between the protected activity and the adverse action is sufficient to establish any discriminatory intent that the statutory text implicitly requires.

Id. (footnote omitted).

Inextricably-intertwined theory — in instant case multiple factors showed late report of injury contributed to discharge

Respondent contended that “courts have rejected the inextricably-intertwined theory of contributory causation,” citing BNSF Ry. Co. v. USDOL (Cain), 816 F.3d 628, 639 (10th Cir. 2016), citing in turn, Marano v. Dep’t of Justice, 2 F.3d 1137 (Fed. Cir. 1993). In Cain, the employee had been disciplined for late reporting of medical treatment for an injury, and the court “held that an employee cannot immunize himself against discipline for wrong-doing simply by disclosing his injury as part of his protected activity. The court required the employee to show more to establish causation than the simple fact that his injury report led to his discharge.” Id. The court, however, affirmed the ALJ because he had relied on other factors such as temporal proximity and the employee’s credibility.

The ARB did not opine on whether the Inextricably-intertwined theory was valid, but instead noted that in the instant case that the ALJ received evidence on other relevant factors, such as the particular circumstances of the injury; Respondent’s negative reaction to the late injury report; Complainant’s removal from his work station for refusing to sign the disciplinary report (which did not require a signature); allusions to disciplinary actions during cross-examination of Complainant’s witnesses during the investigatory hearing; and other factors. The ARB stated:

Regardless of whether Brough’s report of his injury was untimely, Brough reported his injury. The ALJ found credible Brough’s assertions that he was reluctant to report a work injury, he wanted the injury to go away as his other previous aches and pains had, and he went to a chiropractor to try to achieve that end. When that treatment didn’t get the results he desired, he went to a physician who diagnosed his resultant work injury. Brough then reported his injury, which contributed to his termination.

Id. at 11. In sum, the ARB found that substantial evidence supported the ALJ’s determination that protected activity was a contributory factor in Complainant’s discharge.

Motive, Animus, Intentional Retaliation

CONTRIBUTING FACTOR CAUSATION; COURT REJECTS RULING IN KUDUK THAT A PLAINTIFF NEEDS TO ESTABLISH INTENTIONAL RETALIATION

Defendant argued that Plaintiff could not show protected activity was a contributing factor to the decision to discipline him under either (a)(4) or (b)(1)(A). urging the court to adopt the Eighth Circuit’s reasoning in Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014), requiring a showing of intentional retaliation. The court reviewed the decisions of other district courts within the Fifth Circuit and other circuits, and the Fifth Circuit’s precedent on analogous Sarbanes-Oxley cases, and determined that “a plaintiff need not show intentional retaliation to satisfy the requirements of the ‘contributing factor’ element of a prima facie case of retaliation under the FRSA.” Slip op at 21. Reviewing the evidence, the court found that a genuine issue of material fact existed on contributory factor causation.

SUMMARY JUDGMENT ON CONTRIBUTORY FACTOR CAUSATION; COURT FINDS THAT INTENTIONAL RETALIATION STANDARD APPLIES, BUT THAT PLAINTIFF'S VERSION OF EVENTS WAS SUFFICIENT TO PLEAD A PRIMA FACIE CASE OF RETALIATORY MOTIVE

The parties both filed motions for summary judgment.

The first point of dispute was whether the FRSA’s causation standard requires proof of retaliatory animus to show a prima facie case of intentional retaliation, or whether temporal proximity is sufficient to establish "contributory factor" causation. Plaintiff argued that, for purposes of surviving a motion for summary judgment, it was sufficient to rely on temporal proximity alone. Defendant argued that several circuits require proof of retaliatory animus.

The court noted that the 11th Circuit had not yet addressed the question, and that there was a split among other circuit courts and the ARB on the question. After analyzing precedent and the parties' arguments, the court determined that the intentional retaliation standard applied to the case, especially since it involved an employee whose normal job duties regularly involved protected conduct. The court, however, found that a reasonable juror could credit Plaintiff's version of events to show retaliatory motive, and thus that Plaintiff had established a prima facie case sufficient at the present stage of the litigation. The court also determined that, taking all reasonable inferences in Plaintiff's favor, CSX could not show clear and convincing evidence that it would have still assessed the rules violation absent Plaintiff reporting the defective railcar.

CONTRIBUTORY FACTOR CAUSATION; A COMPLAINANT IS NOT REQUIRED TO PROVE RETALIATORY ANIMUS—HOWEVER—MOTIVATION IS RELEVANT CIRCUMSTANTIAL EVIDENCE THAT MAY BE CONSIDERED IN DETERMINING WHETHER A COMPLAINANT DEMONSTRATED CONTRIBUTORY FACTOR CAUSATION

In Corbin v. Norfolk Southern Railway Co., ARB No. 2020-0023, ALJ Nos. 2019-FRS-00018, -00019 (ARB May 28, 2021)(per curiam), Complainants were responsible for moving trains throughout Respondent’s rail system. They alleged in a FRSA complaint that Respondent suspended, and then dismissed them, in retaliation for expressing protected safety concerns about operating a locomotive in long hood forward mode in a manner that decreased vision of the road, and about diesel exhaust potentially causing the crew’s eyes to water. Following a hearing, the ALJ found, in a very fact-specific decision, that Plaintiffs failed to prove contributory factor causation. The ALJ also found that Respondent established its affirmative defense by showing by clear and convincing evidence that the suspensions and terminations were based on rules violations wholly independent of protected activity. The rules violations charged were Complainants’ failure to follow supervisor instructions concerning early departures from work, and in one Complainant’s case, refusal to permit inspection of his driver’s license when entering the facility in a manner as directed by a supervisor.

On appeal, Complainants argued that the ALJ erroneously required them to prove that Respondent’s trainmaster (Siffre) had retaliatory motives when he was the charging officer in the disciplinary hearings on the rules violations. The ARB found that the ALJ had not erred:

Complainants are correct that the complainants do not need to prove retaliatory motivation in FRSA whistleblower cases. Rather, “the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” To satisfy this standard, “a complainant need not prove a retaliatory motive beyond showing that the employee’s protected activity was a contributing factor in the adverse action.”

However, the ALJ did not hold that Complainants must show retaliatory animus to successfully prove their claims against Respondent. The ALJ made findings that Complainants had failed to prove by a preponderance of the evidence that Siffre “was motivated in any way to retaliate against [them] because of the safety complaint made in the summer of 2017.” Motivation, however, is relevant circumstantial evidence that may be “consider[ed] when determining whether a complainant has demonstrated that protected activity was a contributing factor in the adverse action.” We interpret the ALJ’s findings as support for its overall findings that Complainants failed to prove their protected activity contributed to Siffre’s disciplinary actions. Therefore, the ALJ did not err in finding that Siffre was not motivated to retaliate against Complainants.

Slip op. at 6-7 (footnotes omitted).

Complainants also sought reversal of the ALJ’s findings that they failed to prove that their protected activities were contributory factors in the trainmaster’s disciplinary actions. Complainants pointed to temporal proximity, certain testimony, and their contention that the rules violation charges were pretext. The ARB found these challenges unpersuasive. The ARB found the temporal proximity evidence weak, as Complainants had not established the length of time between the protected activity and disciplinary action—and even the approximate temporal proximity of early summer to August, was not particularly close As to the testimony and contentions cited by Complainants on appeal, the ARB found that substantial evidence supported the ALJ’s finding of no contribution, noting lack of evidentiary support for Complainants contentions, and considerable evidence showing rules violations by Complainants.

CONTRIBUTORY FACTOR CAUSATION; COURT REJECTS SUMMARY JUDGMENT ARGUMENT THAT, IT DEFIED COMMON SENSE FOR DEFENDANT TO HAVE FIRED PLAINTIFF MERELY FOR REMOVING TRACKS FROM SERVICE AS OPPOSED TO PLAINTIFF’S INSUBORDINATION; COURT DISTINGUISHES BRISBOIS BASED ON THE FACTS

In Taylor v. Union Pac. R.R. Co., No. 18-1110 (M.D. La. Mar. 12, 2021) (2021 U.S. Dist. LEXIS 47301), the court denied Defendant’s motion for summary judgment on Plaintiff’s FRSA retaliation complaint. One of Defendant’s arguments was that Plaintiff could not show causation because it was implausible for Defendant to retaliate against Plaintiff for removing tracks from service “because that act is ‘small potatoes’ in light of the ‘hundreds, if not thousands, of slow orders and track removals a year.’” Slip op. at 18 (citations to the record omitted). The court found that this appeal to common sense did not prevent Plaintiff from meeting his burden. The court also found that Brisbois v. Soo Line Railroad Co., No. 15-CV-0570, 2016 WL 7423387, at *5 (D. Minn. Dec. 22, 2016) -- in which the court granted summary judgment where that plaintiff had been argumentative and defied a supervisor’s instructions and that plaintiff’s safety violation report was “small potatoes” -- was distinguishable because in the instant case Defendant would have to have to spend millions of dollars to fix the safety problem, whereas in Brisbois, all that was required was an instruction to employees to stay off the track. The cases were also distinguishable because in Brisbois, the plaintiff had been previously formally disciplined for being argumentative and defying instructions, whereas Plaintiff in the instant case had recently received an overall “Good Performer” rating, and had received positive comments aside from one paragraph addressing his attitude.

CONTRIBUTING FACTOR CAUSATION; SECOND CIRCUIT JOINS SEVENTH AND EIGHTH CIRCUITS IN HOLDING THAT SOME EVIDENCE OF RETALIATORY INTENT IS A NECESSARY COMPONENT OF A FRSA CLAIM

CONTRIBUTING FACTOR CAUSATION; SECOND CIRCUIT ADOPTS EIGHTH CIRCUIT’S FIVE-FACTOR ANALYSIS FROM GUNDERSON FOR DETERMINING CONTRIBUTING FACTOR CAUSATON

CONTRIBUTING FACTOR CAUSATION; FACT THAT ARBITRATION PANEL OVERTURNED DISCIPLINARY PANEL’S SUSPENSION OF PLAINTIFF FOR THE MANNER IN WHICH HE HAD CONFRONTED A SUPERVISOR OVER A PRIOR HEARING DID NOT OUTWEIGH OTHER GUNDERSON FACTORS; THAT THE DISCIPLINE WAS OVERTURNED ULTIMATELY HAD NO CONNECTION TO WHETHER IT WAS IN RETALIATION FOR PLAINTIFF’S SAFETY COMPLAINT

The Second Circuit found that the district court did not err in concluding that Plaintiff’s safety complaints regarding the state of the walkways did not contribute to any unfavorable personnel action. The court first examined a split in the circuits “on whether the ‘contributing factor’ prong requires a plaintiff to show that the employer’s decision was motivated, at least in part, by a desire to retaliate against the plaintiff for engaging in protected activity.” Slip op. at 15 (footnote omitted). The court determined that retaliatory intent is a required showing:

Having now considered the issue, we agree with the Seventh and Eighth Circuits and hold that some evidence of retaliatory intent is a necessary component of an FRSA claim. “The FRSA provides that a rail carrier may not discharge ‘or in any other way discriminate against’ an employee for engaging in protected activity.” And “the essence of [such a] tort is ‘discriminatory animus,’” which in turn requires the employee to prove that she was the victim of “intentional retaliation prompted by [her] . . . protected activity.” Put simply, “[a] showing of discriminatory animus, which the statute requires, necessarily includes some proof of retaliatory motive.”

To establish that retaliation was a contributing factor, an FRSA plaintiff must produce evidence of “intentional retaliation prompted by the employee engaging in protected activity.” The plaintiff need not show that the “contributing factor” was the sole factor affecting the discipline or that the employer acted only with retaliatory motive. The plaintiff must, however, show “more than a temporal connection between the protected conduct and the adverse employment action . . . to present a genuine factual issue on retaliation.”

Id. at 15-16 (emphasis as in original) (footnotes omitted). The court then considered the five factors enunciated by the 8th Circuit in Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969 (8th Cir. 2017), for analyzing whether protected activity contributed to the adverse action. Applying those factors to the facts of the case, the court found that they weighed in favor of Defendant.

The case also involved a lunchroom incident in which Plaintiff was disciplined for the manner in which he confronted a supervisor over the hearing regarding Plaintiff’s refusal to walk to another building in winter conditions. An arbitration panel ultimately overturned the suspensions imposed after a disciplinary hearing on this incident, and awarded Plaintiff back pay. The court found that the Gunderson factors still strongly favored Defendant. The court explained:

The lunchroom incident that occurred between the safety complaint and the Count II discipline served as an intervening incident and provided an unrelated basis for discipline (“conduct unbecoming a Metro-North employee and disregard of the company’s interests”). That this disciplinary finding was ultimately overturned has no connection to whether it was in retaliation for Tompkins’s safety complaint, and he has submitted no specific evidence that the discipline was retaliatory.

Id. at 18.

ARB REMANDS CASE ARISING IN EIGHTH CIRCUIT FOR FURTHER PROCEEDINGS IN LIGHT OF THE EIGHTH CIRCUIT’S REQUIREMENT OF PROOF OF INTENTIONAL RETALIATION

In Colley v. Union Pacific Railroad Co., ARB No. 2018-0063, ALJ No. 2017-FRS-00071 (ARB Nov. 6, 2020), the ALJ found that Complainant established contributing factor causation under the FRSA retaliation provision. In making this finding, the ALJ applied the “inextricably intertwined” analysis. On appeal, the ARB noted that after the ALJ had issued her Decision in Colley, the ARB held in Thorstenson v. BNSF Ry. Corp., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019), that ALJs should not apply the “inextricably intertwined” or “chain-of-events” analysis to create a presumption of causation. The ARB also noted that the Colley case arose in the Eighth Circuit, and that the U.S. Court of Appeals for the Eighth Circuit had held that an employee must prove intentional retaliation by the employer. See Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014); BNSF Ry. Co. v. U.S. Dep’t of Labor Admin. Review Bd., 867 F.3d 942, 946 (8th Cir. 2017); Dakota, Minn. & E. R.R. Corp. v. U.S. Dep’t of Labor Admin. Review Bd., 948 F.3d 940, 947 (8th Cir. 2020) (unequivocally rejecting the chain-of-events and inextricably intertwined theories of causation). The ARB thus remanded the case to the ALJ for further proceedings.

In Lockhart v. MTA Long Island R.R., No. 17-2725 (2d Cir. Feb. 4, 2020) (2020 U.S. App. LEXIS 3297), the Second Circuit affirmed the district court’s grant of MTA’s motion for summary judgment. Lockhart had filed a FRSA complaint alleging retaliation when MTA disciplined him for failing to report to work while under the influence of prescribed narcotic drugs. The district court had found that the discipline was based on Lockhart’s failure to present verifying documentation as required by MTA’s sick leave policy. The Second Circuit held that “[b]ecause the statute does not prevent employers from requesting reasonable documentation to assure themselves that employees’ absences are legitimate, we affirm.” Slip op. at 2.

    [N]owhere in the statute are employers prevented from using the common practice of requiring reasonable documentation to assure that an employee’s claimed medical absences are legitimate. Nor has appellant demonstrated that prohibiting such a practice only in cases involving railroad safety was a policy intended by the Congress. Because nothing in the text, structure, and purpose of the FRSA directs otherwise, the railroad was within its rights to seek verification of illnesses before excusing appellant’s absences as activity protected under the FRSA. Indeed, it would be rather adventurous to infer an FRSA requirement that a railroad take employees at their word that the reason for a failure to report to work was an easily verifiable doctor-prescribed mind-altering drug. The SLA-28 form, which requires a physician’s diagnosis, treatment plan, and signature, authenticates that information and does not overstep.

    There is also ample case law in other statutory contexts holding that employers have the right to request medical certification documenting an employee’s need for protected leave. For example, courts have held that employers may require employees to fill out standardized reasonable accommodation request forms in order to be entitled to accommodations (including sick leave) under the Americans with Disabilities Act. See, e.g., Pauling v. District of Columbia, 286 F. Supp. 3d 179, 211-12 (D.D.C. 2017); Lundquist v. Univ. of S.D. Sanford Sch. of Med., No. 09-CV-4147, 2011 WL 5326074, at *8 (D.S.D. Nov. 4, 2011); Kunamneni v. Locke, Nos. 1:09-CV-005 (JCC), 1:09-CV-450 (JCC), 2009 WL 5216858, at *11 (E.D. Va. Dec. 29, 2009). Similarly, the Family and Medical Leave Act specifies that employers may require employees to submit health care provider certifications connected to their leave. See 29 U.S.C. § 2613. Appellant has articulated no basis upon which to adopt a view that the FRSA affirmatively prohibits employers from imposing a similar requirement.

    Moreover, the SLA-28 form does not constitute a waiver of an employee’s rights prohibited by the FRSA and the form does not have to expressly reference the statute. Section 20109(c)(2) states that an employee may not be disciplined “for following orders or a treatment plan of a treating physician.” It is perfectly reasonable for a carrier to assure itself that an employee is indeed following a treating physician’s orders in missing work by verifying those orders through the submission of standardized health care provider certifications such as form SLA-13 28.

Id. at 10-12 (footnote omitted).

CONTRIBUTORY FACTOR CAUSATION; EIGHTH CIRCUIT FINDS THAT THE ARB AND ALJ ERRED IN FAILING TO APPLY KUDUK v. BNSF RY; SUSPENSION FOR UNTIMELY FILING OF REPORT THAT RAILROAD’S RULE REQUIRES TO BE FILED PROMPTLY DOES NOT, WITHOUT MORE, ESTABLISH A FRSA RETALIATION CASE

In Dakota, Minn. & E. R.R. Corp. v. United States Dep't of Labor Admin. Review Bd., 948 F.3d 940 (8th Cir. Jan. 30, 2020) (No. 18-2888) (2020 U.S. App. LEXIS 2978; 2020 WL 486843) (case below ARB Nos. 16-010, -052, ALJ No. 2014-FRS-44), the ARB had affirmed the ALJ’s holding that Petitioner violated the whistleblower retaliation provisions of the FRSA when it suspended the complainant, a locomotive engineer, for his untimely reporting of a “work-related personal injury” or a “hazardous safety or security condition.” 49 U.S.C. §§ 20109(a)(4), (b)(1)(A), (d). On appeal, Petitioner argued that the ARB and the ALJ had failed to follow the Eighth Circuit’s ruling in Kuduk v. BNSF Ry., 768 F.3d 786, 791 (8th Cir. 2014) that “the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” The court agreed, and remanded the matter to the ARB to apply the correct legal standard.

The complainant had been involved in a physical altercation with a co-worker at Petitioner’s terminal in Bensenville, Illinois. Complainant was struck by a lantern. Complainant did not report the altercation to supervisors in Bensenville. Complainant testified that after going to his hotel for a mandatory 12-hour rest period, he attempted to call his immediate supervisor in Dubuque Iowa, and sent a text, and then fell asleep. In a later phone conversation, complainant told the immediate supervisor that he had been assaulted and that he did not want to work with the co-worker again. The supervisor told complainant that he needed to make an official report in order for him to deal with it. Complainant said he did not want to get the co-worker fired and needed time to think about filing a formal report. A few hours later he did file a formal complaint. Later, he discovered a bruise where the lantern struck him and added that to his complaint.

Petitioner immediately interviewed both employees and then launched a formal investigation. Ultimately the Petitioner determined that complainant had failed to promptly report the incident, and that dismissal was warranted because complainant was under a “last chance” agreement — but that it had decided that the time complainant was withheld from service during the 47 day investigation would be assessed as formal discipline. The co-worker’s employment was terminated. The Railway Labor Board upheld complainant’s suspension, but reduced it to 15 days. Complainant then filed his FRSA complaint. The ALJ applied decisions from the ARB and other circuits holding that neither motive nor animus are required to prove causation under the FRSA as long as protected activity contributed in any way to the adverse action. The ALJ determined that complainant satisfied the contributing-factor element of his case because his report of altercation had set in motion a chain of events leading to the discipline.

On appeal to the ARB, Petitioner argued that the chain-of-events analysis was contrary to controlling 8th Circuit precedent. The ARB distinguished Kuduk, and affirmed the ALJ’s decision, stating that “‘[s]imply put, [Riley’s] reporting of the injury set in motion the chain of events eventually resulting in the investigation and is inextricably intertwined with the eventual adverse employment action.’” Slip op. at 6 (quoting ARB decision and adding emphasis). The court noted:

The ARB’s opinion included a lengthy footnote arguing that Kuduk’s intentional retaliation standard “is both conclusory and contrary to the weight of precedent” and that Kuduk erred in adopting the Supreme Court’s causation standard in Staub v. Proctor Hospital, 562 U.S. 411 (2011), because the FRSA “does not require a complainant to ’demonstrate the employer’s retaliatory motive.’”

Id. at 7.

The 8th Circuit was not persuaded by the ARB’s analysis:

The ARB’s reasoning is both contrary to our governing precedents and fatally flawed. The FRSA prohibits a rail carrier from discriminating against an employee for engaging in protected activity. 49 U.S.C. § 20109(a). In Staub, the Supreme Court noted that intentional torts such as this require a showing that a supervisor’s “discriminatory animus” was a causal factor of the ultimate employment action. 562 U.S. at 420-21. Applying that ruling to FRSA retaliation claims, we held in Kuduk that “the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” 768 F.3d at 791. To establish this element of his prima facie case, the employee does not have to conclusively prove retaliatory motive but must show more than temporal proximity between the protected activity and the adverse action. Id. at 791-92.

Id. (emphasis as in original). The court also outlined its decisions that had confirmed and followed Kuduk. The court acknowledged that in the instant case complainant’s report and the discipline were an “inextricably intertwined” “chain of events.” Nonetheless, the court stated that “no sinister inference may be drawn from this chain of events.” Id. at 9. The court elaborated:

“An injury report is a normal trigger for an investigation designed to uncover facts that can prompt corrective action that will reduce the likelihood of a future injury.” Koziara v. BNSF Ry., 840 F.3d 873, 878 (7th Cir. 2016). By ruling that this factual connection was sufficient to satisfy the contributing factor causal element of an FRSA claim, the ARB in essence held that an employee can be free of discipline and recover FRSA damages simply by disclosing misconduct of which the employer is otherwise unaware in a report that will be considered protected FRSA activity. It is well settled that “employees cannot immunize themselves against wrongdoing by disclosing it in a protected-activity report.” BNSF Ry. v. U.S. Dep’t of Labor (Cain), 816 F.3d 628, 639 (10th Cir. 2016). The principle applies in this situation: the protected activity was the untimely filing of a report that CP’s operating rules require employees to promptly file, consistent with railroad safety; a suspension imposed for violating that rule does not, without more, evidence discrimination against a good faith rail safety whistleblower

Id.

CONTRIBUTORY FACTOR CAUSATION; SUMMARY JUDGMENT; FAILURE TO ESTABLISH PRIMA FACIE CASE OF INTENTIONAL RETALIATION; HIRING OF EXPERT TO INVESTIGATE ACCIDENT IS NOT, IN ITSELF, EVIDENCE OF ANIMUS OR INTENT TO RETALIATE

In Smith-Bunge v. Wis. Cent., Ltd., No. 18-1251 (8th Cir. Dec. 27, 2019) (2019 U.S. App. LEXIS 38569; 2019 WL 7198351), Plaintiff, who had brought a FRSA retaliation suit, appealed the district court’s grant of summary judgment for failure to make a prima facie case of retaliation. The Eighth Circuit affirmed the district court.

In the Eighth Circuit, “the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” Kuduk v. BNSF Railroad Co., 768 F.3d 786, 791 (8th Cir. 2014). Here, the court found that Plaintiff had not raised an inference of intentional retaliation prompted by any of his three acts: (1) filing a prior lawsuit, (2) reporting an injury from a 2014 collision, and (3) reporting a brake failure that caused a 2014 collision. The court noted that Plaintiff failed in his brief to mention the Kuduk “intentional retaliation” standard.

The court found that no reasonable fact finder could infer a retaliatory motive. Plaintiff noted that Defendant had hired its expert to investigate the 2014 collision six days after Plaintiff won summary judgment in the 2013 litigation, and that Defendant did not terminate workers involved in other accidents. The court, however, held that hiring the expert to investigate the 2014 accident did not, by itself, indicate animus or intentional retaliation. Moreover, the short lapse between Plaintiff’s success in summary judgment and the hiring of the expert was insufficient. The court found that the 2013 litigation and the 2014 crash were completely unrelated, and that the 2014 crash was “an “intervening event that independently justified” his termination.” Slip op. at 7. As to differential treatment, the court found that Plaintiff had not provided sufficient details about the other crashes to determine if they were of the same magnitude, and that none of the workers in the other crashes provided false information as had Plaintiff.

As to the 2014 report of injury and brake failure, the court found that Plaintiff had provided no evidence of retaliatory motive. In this regard, the court stated:

[Plaintiff] relies on testimony from two Wisconsin Central employees that if he had not falsely reported the brake failure, he would not have violated the rule to furnish true information and, therefore, possibly not been terminated. He concludes from this testimony that his act of reporting caused the termination. It did not. His falsehoods in the report, substantiated by [Defendant’s expert’s] examination of his truck’s brakes after the crash, contributed to his termination.

Id. at 7-8 (emphasis as in original).

CONTRIBUTORY FACTOR CAUSATION AND AFFIRMATIVE DEFENSE; RESPONDENT’S HONEST BELIEF; FRSA ADDRESSES RETALIATION AND NOT WRONGFUL TERMINATION; NOT ENOUGH TO SHOW THAT ADVERSE ACTION WAS WRONG, UNFAIR, OR UNJUST—IT MUST BE SHOWN TO HAVE BEEN RETALIATORY

In addition, the ARB stated that the ALJ’s erroneous use of a prima facie inference was compounded by his errors relating to Defendant’s legitimate, nondiscriminatory reasons for terminating Complainant—the ALJ having substituted his perception of the poor merits of Defendant’s employment decision to find that the reasons were not honestly held and thus pretext for FRSA retaliation. The ARB outlined the ALJ’s reasoning that Complainant was not vicariously liable for safety violations of his crew, and thus discipline of Complainant was pretextual. Finding the ALJ’s reasoning deficient, the ARB wrote:

   The ALJ erred in the above analysis by focusing on his perceptions of the merits of Union Pacific’s justifications for terminating Acosta. The question is not whether Acosta violated Union Pacific’s rules, whether he actually was or was not point protector for the entire time, or whether Union Pacific proved that he was not actually in charge of the team’s work as opposed to being a leader of the team. Jones v. U.S. Enrichment Corp., ARB Nos 02-093, 03-010, ALJ No. 2001-ERA-021 (ARB Apr. 30, 2004) (“‘It is not enough . . . to disbelieve the employer: the factfinder must believe the plaintiff’s explanation of intentional discrimination.”) (case citation omitted). The ARB has stated on many occasions that the ALJ should not sit as a super-personnel advocate when viewing the employer’s decisions for an adverse action. Clem v. Computer Sciences Corp., ARB No. 16-096, ALJ Nos 2015-ERA-003, 004 (ARB Sept. 17, 2019); Gale v. Ocean Imaging, ARB No. 98-143, ALJ No. 1997-ERA-038, slip op. at 13 (ARB July 31, 2002) (“Moreover, the thrust of Complainant’s argument is that it was wrong, unfair, or unjust for Respondents not to weigh the grounds that they cited against Complainant’s past performance and find in favor of retaining her, and that therefore Respondent’s rationale was pretext. However, “[I]t is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible . . . [rather] he must show that the explanation is a ‘phony reason.’” citing Kahn v. U.S. Sec’y of Labor, 64 F.3d 271, 278 (7th Cir. 1995)). The FRSA is not a wrongful termination statute. An employer’s actions can be harsh, faulty, and unjustified, but this does not establish that the employer retaliated for FRSA whistleblowing activity.

   Rather, the issue to be decided by the ALJ when evaluating the employer’s reasons for its action is first whether Union Pacific genuinely or honestly believed that Acosta was responsible in whole or in part for the pattern of safety violations or the twenty-two car collision. And if so, whether that belief and not protected activity accounted for its disciplinary actions. Clem, ARB No. 16-096: Stone & Webster, Constr., Inc. v. U.S. Dept. of Labor, 684 F.3d 1127, 1136 (11th Cir. 2012).

   We do not say that the believability of the employer’s reasons is not relevant to a whistleblower retaliation claim. If the employer’s reasons were so unbelievable as to be unworthy of credence, this would be evidence in favor of Acosta, either at the contributing factor stage or preventing the employer from establishing its affirmative defense. The ALJ had traditional grounds for establishing pretext for FRSA retaliation such as disparate treatment with similarly situated comparators, a history of retaliation against persons who engage in protected activity, and so on. However, this is not the analysis that the ALJ performed.

Id. at 11-12 (footnote omitted). In sum, the ARB found that these errors required a remand to weigh the evidence under the preponderance of the evidence standard.

HONESTLY HELD BELIEF DEFENSE; JURY INSTRUCTION IS PREJUDICIAL IF IT INDICATES THAT THE HONESTLY HELD BELIEF DEFENSE IS PART OF PLAINTIFF’S CONTRIBUTORY FACTOR BURDEN; THE DEFENSE IS, RATHER, CONSIDERED AS PART OF DEFENDANT’S AFFIRMATIVE DEFENSE UNDER THE CLEAR AND CONVINCING EVIDENCE STANDARD

CONTRIBUTORY FACTOR CAUSATION; AN EMPLOYER MAY HAVE BEEN MOTIVATED BY BOTH AN IMPERMISSIBLY RETALIATORY MOTIVE AND AN HONESTLY HELD BELIEF THAT PLAINTIFF VIOLATED A RULE

EIGHTH CIRCUIT DISTINGUISHES HONESTLY HELD BELIEF INSTRUCTION IN SEVENTH CIRCUIT DECISION IN ARMSTRONG, FINDING THAT ARMSTRONG WAS ABOUT WHETHER THERE HAD BEEN A FALSE REPORT AND THUS WHETHER THER HAD BEEN PROTECTED ACTIVITY

In Blackorby v. BNSF Ry. Co., No. 18-2372 (8th Cir. Aug. 23, 2019) (2019 U.S. App. LEXIS 25313), the Eighth Circuit held that a jury instruction on the “honestly held belief” defense, although not inherently impermissible in an FRSA retaliation case, was prejudicial where it was given in a manner where the jury was essentially told to consider the instruction as part of Plaintiff’s prima facie case and not as a part of Defendant’s heightened burden under the clear-and-convincing evidence standard. The court, referencing a decision on an earlier appeal of the case, stated:

The second sentence of Instruction 17, however, is an incorrect statement of the law in the context of the contributing-factor standard. The second sentence states, “BNSF Railway cannot be held liable under the FRSA if you conclude that BNSF Railway disciplined Plaintiff based on its honestly held belief that Plaintiff engaged in misconduct or committed a rules violation.” As made clear in the first panel opinion, a retaliatory motive gives rise to FRSA liability if retaliation was a “contributing factor” in the discipline decision. Blackorby I, 849 F.3d at 721–22. Contrary to the plain language of Instruction 17’s second sentence, an employer can, in fact, be held liable under the FRSA if it disciplines an employee based on its honestly held belief that the employee engaged in misconduct or committed a rules violation. Liability will still exist notwithstanding such a belief if the employer’s retaliatory motive also played a contributing role in the decision and if the employer fails to carry the burden of proving by clear and convincing evidence that it would have taken the same action in the absence of the protected report. As Blackorby succinctly notes in his opening brief, “A finding that an employer maintained an honest belief that an employee engaged in misconduct or violated a rule is not mutually exclusive with a finding of retaliatory intent.” In fact, two causes being non-mutually exclusive is the very essence and definition of a “contributing” factor.

Slip op. at 7. The court noted that although this instruction itself did not reference a burden of proof, when taken in the context of the compounding effect of a second instruction, the jury had been told to consider the “honestly held belief” instruction as part of Plaintiff’s prima facie case. The court noted: “We do not mean to suggest there is anything inherently impermissible about using an ‘honestly held belief’ instruction in the context of an FRSA retaliation claim. Any such instruction, however, must be articulated in a manner that preserves the clear-and-convincing-evidence standard, the contributing factor standard, and the statutory burden-shifting framework.” Id. at 8, n. 5.

Defendant argued, inter alia, that the jury instructions were permissible in light of the Seventh Circuit decision in Armstrong v. BNSF Ry. Co., 880 F.3d 377 (7th Cir. 2018). The court distinguished Armstrong. First, it noted that the instruction in Armstrong did not suffer from the compounding effect present in the present case. The court then noted that in Armstrong, the misconduct perceived by the employer in raised a question whether the employee had filed a false report and had thus actually engaged in protected activity. In the instant case, there was no allegation of a false report. The court wrote:

Second, we find Armstrong distinguishable on a separate basis. In Armstrong, the plaintiff-employee filed a report alleging a supervisor had attacked and injured him by slamming a door on his leg as he left the supervisor’s office. 880 F.3d at 379. The employee later sued under the FRSA alleging retaliation based on the filing of his report. Id. at 380. A video of the scene, however, appeared to show the supervisor located ten to twelve feet from the door at the time the plaintiff-employee left the supervisor’s office. Id. at 379. The fighting issue in Armstrong, therefore, involved a very specific type of perceived employee misconduct—the filing of a false report. Given that specific context, if the employer honestly believed the plaintiff-employee had knowingly made a false report, it would seem nearly impossible for that same report to support a claim of unlawful retaliation. The FRSA, after all, prohibits retaliation against employees who make lawful, good faith complaints. See 49 U.S.C. § 20109(a) (prohibiting discrimination “due, in whole or in part, to the employee’s lawful, good faith act”). And, the act of making a false report simply is not a lawful, good faith complaint. The issue in Armstrong, therefore, was not so much a question of mixed motives or contributing factors. Rather, the issue was the existence or nonexistence of a protected act. See Armstrong, 880 F.3d at 382 (“If BNSF fired Armstrong because it honestly believed that he was lying about his complaint, then it necessarily follows that it did not retaliate against Armstrong for filing a good faith complaint.”).

The fighting issue in the present case, in contrast, did not involve allegations of a false report. Blackorby alleged BNSF retaliated against him for making a truthful and good-faith, albeit untimely, report and also for refusing his supervisor’s coercive attempts to prevent him from making any report at all. Unlike in Armstrong, there is no inconsistency between BNSF being motivated in part by an impermissible retaliatory motive and in part by an honestly held belief that Blackorby violated a rule. As a result, we decline BNSF’s invitation to adopt Armstrong as controlling in our circuit or as establishing a general rule that the language of Instruction 17 may be deemed appropriate in all cases.

Id. at 8-9.

CONTRIBUTORY FACTOR CAUSATION; PLAINTIFF NOT REQUIRED TO ESTABLISH RETALIATORY MOTIVE

In Smith v. BNSF Ry. Co., No. 17-cv-00977 (D. Col. July 18, 2019) (2019 U.S. Dist. LEXIS 119794; 2019 WL 3230975), the court denied Defendant’s motion for summary judgment on the question of contributory factor causation, finding that whether Defendant had a good faith belief in its conclusion of dishonesty by Plaintiff was a disputed issue that must be decided by a jury. In discussing the motion, the court addressed whether a plaintiff must show in an FRSA case that the decision-maker had a retaliatory motive:

It is not necessary in an FRSA retaliation case that the plaintiff show that the decision-maker had a retaliatory motive. See Kuduk v. BNSF Ry. Co., 980 F. Supp. 2d 1092, 1100-01 (D. Minn. 2013), aff’d, 768 F.3d 786 (8th Cir. 2014). That protected activity was a contributing factor to an adverse employment action can be proven through circumstantial evidence of a temporal proximity, pretext, shifting explanations by the employer, antagonism or hostility toward the plaintiff’s protected activity, the falsity of the employer’s explanation or a change in the employer’s attitude toward plaintiff after he/she engaged in protected activity. Id. (citing DeFrancesco v. Union RR Co., ARB No. 10-114, ALJ No.2009-FRS-009, 2012 DOL Ad. Rev. Bd. LEXIS 23 (ARB Feb. 29, 2012)).

The critical inquiry in a pretext analysis “is not whether the employee actually engaged in the conduct for which he was terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge.” Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969 (8th Cir. 2017) (citing McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 861-62 (8th Cir. 2009)).

CONTRIBUTING FACTOR CAUSATION; DISTRICT COURT NOTES SPLIT IN CIRCUITS ON WHETHER PLAINTIFF MUST SHOW RETALIATORY MOTIVE, AND INSTEAD APPLIES SEVEN-FACTOR TEST DERIVED FROM GIBBS AND WAGNER

Good Faith

Contributing Factor

(i) temporal proximity
(ii) indications of pretext
(iii) inconsistent application of an employer’s policies
(iv) shifting explanations for an employer’s actions
(v) antagonism or hostility toward a complainant’s protected activity
(vi) falsity of an employer’s explanation for the adverse action taken, and
(vii) change in the employer’s attitude toward the complainant after he engages in protected activity.

CONTRIBUTORY FACTOR CAUSATION; COMPLAINANT IS NOT REQUIRED TO ESTABLISH RETALIATORY ANIMUS

CONTRIBUTORY FACTOR CAUSATION; REPORT OF INJURY, EVEN THOUGH POSSIBLY UNTIMELY, FOUND TO HAVE CONTRIBUTED TO COMPLAINANT’S TERMINATION

Background

Complainant does not have the burden to establish intentional discriminatory animus

[F]or the reasons the Board has repeatedly stated in its previous decisions, we decline to hold that an employee must prove a separate discriminatory or retaliatory animus, motivation or intent in order to establish that his protected activity was a contributing factor to the adverse employment action alleged in the complaint. Proof of the causal relationship between the protected activity and the adverse action is sufficient to establish any discriminatory intent that the statutory text implicitly requires.

Id. (footnote omitted).

Inextricably-intertwined theory — in instant case multiple factors showed late report of injury contributed to discharge

Regardless of whether Brough’s report of his injury was untimely, Brough reported his injury. The ALJ found credible Brough’s assertions that he was reluctant to report a work injury, he wanted the injury to go away as his other previous aches and pains had, and he went to a chiropractor to try to achieve that end. When that treatment didn’t get the results he desired, he went to a physician who diagnosed his resultant work injury. Brough then reported his injury, which contributed to his termination.

Id. at 11. In sum, the ARB found that substantial evidence supported the ALJ’s determination that protected activity was a contributory factor in Complainant’s discharge.

Temporal Proximity

CONTRIBUTORY FACTOR CAUSATION; TEMPORAL PROXIMITY BASED ON ONGOING LITIGATION BEING A PERSISTENT PRESENCE IN THE MINDS OF THE ACTORS IN THE CASE

CONTRIBUTORY FACTOR CAUSATION; ALJ DOES NOT ERR IN ASSESSING SHORTCOMINGS OF AN ARBITRATION PROCEEDING THAT HAD UPHELD RESPONDENT’S DECISIONS TO IMPOSE SUSPENSIONS AND TO TERMINATE COMPLAINANT’S EMPLOYMENT; FINDING IN FAVOR OF RESPONDENT IS A RELEVANT FACTOR, BUT NOT DISPOSITIVE

CONTRIBUTORY FACTOR CAUSATION; CIRCUMSTANTIAL EVIDENCE THAT MANAGERS’ ATTITUDE TOWARD COMPLAINANT BECAME HOSTILE AFTER HE HAD FILED A FRSA RETALIATION COMPLAINT

In March v. Metro-North Commuter Railroad Co., ARB No. 2021-0059, ALJ Nos. 2019-FRS-00032, -00035 (ARB Jan. 21, 2022) (per curiam), Respondent (Metro-North) did not challenge on appeal the ALJ’s finding that Complainant (March) engaged in the protected activity of having filed a FRSA retaliation complaint in 2015. Respondent also did not challenge that the work suspensions and termination were adverse employment actions. Rather, the issues on appeal were contributory factor causation, and Respondent’s affirmative defense. In regard to the contributory factor causation issue, Respondent principally argued that the ALJ erred in finding that temporal proximity supported a finding of causation, and that the ALJ had given inadequate weight to the fact that a panel of three arbitrators had upheld the suspensions and termination,

Temporal proximity

The 2015 FRSA action was pending in federal court at the time of work suspensions in 2017 and termination from employment in 2018. The ALJ relied on temporal proximity, new hostility toward Complainant following his whistleblower complaints, and inconsistent application of company policies to find that the 2015 whistleblower complaint had been at least one factor in the suspension and termination decisions. The ALJ considered but did not attribute significant weight to the fact that the suspensions and termination had been upheld by a panel of three arbitrators (one member from Metro-North management, one union member, and one neutral member).

On appeal, Respondent argued that temporal proximity was not a factor because there had been a 20-month gap between the 2015 FRSA complaint and the events giving rise to the adverse employment actions, and because it was Complainant’s change in attitude that caused any hostility or deferential treatment. The ARB, however, found that there was a substantial basis for the ALJ “to reasonably conclude March’s ongoing litigation against the company: 1) remained a persistent presence in the minds of the actors in this case; 2) had ongoing ramifications for March; and 3) helped shape how events unfolded.” Slip op. at 12. The ARB noted that this analysis was consistent with its decision in Brucker v. BNSF Railway Co., ARB No. 2014-0071, ALJ No. 2013-FRS-00070, slip op. at 12 (ARB July 29, 2016), in which the ARB stated: “Ongoing litigation kept the protected activity ‘fresh as the events in the case unfolded’ and led to ‘continuing fallout’ for the complainant.” Id. (quoting Carter v. BNSF Ry. Co., ARB Nos. 2014-0089, 2015-0016, -0022, ALJ No. 2013-FRS-00082, slip op. at 4 (ARB June 21, 2016)). The ARB was not persuaded by Respondent’s argument that its decision in Brucker was counter to Second Circuit law, finding that each case cited by Respondent was distinguishable.

The ARB also observed that temporal proximity was only one of several factors that the ALJ had considered in regard to contributory factor causation.

Arbitration decisions

Respondent also argued that the ALJ failed to properly consider the fact that neutral arbitrators had upheld the suspensions and termination. The ARB stated:

An arbitration decision upholding an employer’s disciplinary decisions may help substantiate an employer’s explanation for its conduct, and it also may also be one piece of evidence suggesting that an employer did not discriminate or retaliate against its employee. However, arbitration decisions are not dispositive. Rather, the weight to be accorded to the arbitration decisions is left to the discretion of the tribunal, based on the particular facts and circumstances of the case.

Id. at 14 (footnote omitted). The ARB found that Respondent had not shown that the arbitration decisions must be given more weight than the ALJ accorded them.

First, the ALJ had noted that the arbitration decisions tended to weigh in Respondent’s favor, but also noted circumstances surrounding the decisions (Complainant’s absence from two of the three disciplinary proceedings, incomplete and inaccurate records presented to the arbitrators, and an error of fact in at least one of the arbitration decisions) that made them less probative than other circumstantial evidence in the record.

Second, the ARB rejected Respondent’s arguments “that the ALJ abused his discretion or committed reversible error by considering what he reasonably determined to be deficiencies or shortcomings with the arbitration decisions when determining the weight he would give them.” The ARB noted that Respondent had not challenged that Complainant’s absence at the proceedings had an impact on the records made, and that such records were in some ways incomplete and inaccurate. Moreover, the ARB stated:

Metro-North has not pointed to any precedent that bars the ALJ, in the exercise of his discretion and judgment, from considering the accused’s absence from the disciplinary proceedings, the impact that absence had on the records, or evident flaws in the records and decisions themselves, when weighing the probative value of arbitration decisions. We find no error in the ALJ’s determination about the appropriate weight to give the arbitration decisions, and Metro-North has not provided any legal basis for us to do so.

Id. at 15 (footnote omitted). The ARB was not persuaded by Respondent’s apparent suggestion that the ALJ should have given more weight to the arbitration decisions because a union representative appeared on Complainant’s behalf. The ARB stated that union representation is a relevant consideration, but not the sole relevant consideration in assessing the fairness or probative value of arbitration decisions.

Other circumstantial evidence

The ARB noted that other circumstantial evidence supported the ALJ’s determination on contributory factor causation, such as findings, supported by substantial evidence, that Complainant’s managers began acting differently toward him because of Complainant’s litigation against the company; that Complainant credibly testified that he had not changed his behavior and that it was the managers whose attitude changed at the time of the initiation of the lawsuit; that although managers testified that Complainant’s inspections became more particular and slower after he filed the complaint, they also stated that these changes did not cause significant concern; that only one manager (who had played a key role in the earlier lawsuit and who was also responsible for each of the present disciplinary charges) “categorically insisted that March became combative, uncooperative, and unacceptably inconsistent after he sued the company.” Id. at 18. The ALJ also relied on evidence that the suspensions and termination conflicted with managers’ testimony regarding circumstances that typically warrant discipline. The ARB noted that “[a]lthough Metro-North may disagree with how the ALJ weighed this evidence or resolved factual disputes, we find no reversible error in the ALJ’s determination and conclude his findings are supported by substantial evidence.” Id. at 16.

SUMMARY JUDGMENT ON CONTRIBUTORY FACTOR CAUSATION GRANTED WHERE, ALTHOUGH THERE WAS TEMPORAL PROXIMITY BETWEEN THE PROTECTED ACTIVITY OF REPORTING AN INJURY AND TERMINATION FOR MAKING A FALSE REPORT, THERE WAS INSUFFICIENT OTHER EVIDENCE TO SUPPORT AN INFERENCE OF RETALIATORY MOTIVE

In Carlson v. BNSF Ry. Co., No. 19-cv-1232 (D. Minn. Jan. 4, 2022) (2022 U.S. Dist. LEXIS 1159; 2022 WL 37468), Plaintiff’s complaint contained three counts, one of which alleged that Defendant terminated his employment in violation of the Federal Rail Safety Act, 49 U.S.C. § 20109 for reporting unsafe working conditions. The court granted Defendant’s motion for summary judgment dismissing the FRSA count.

Plaintiff had reported that he sustained injuries while working as a conductor when the train traveled over rough tracks in two locations. Defendant instituted a disciplinary investigation to determine whether Plaintiff had falsely reported a personal injury. After a hearing, Defendant found that Plaintiff had been dishonest and falsely reported a personal injury in violation of BNSF’s rules. Defendant subsequently terminated Plaintiff’s employment.

Defendant argued that summary judgment should be granted because there was no evidence that Plaintiff’s protected activity was a contributing factor in the termination decision. It was undisputed that the contributory factor causation element of Plaintiff’s FRSA claim was entirely based on circumstantial evidence.

The court noted the temporal proximity between the filing of the injury report and the termination, and that such could support an inference of retaliatory motive—provided that additional circumstantial evidence of a retaliatory motive supported the inference.

Plaintiff argued that an inference of contributory factor causation was supported by Defendant’s “shifting explanations” for the termination decision. Plaintiff pointed to an e-mail exchange among Defendant’s managers in which they discussed multiple possible rules violations to investigate. The court, however, noted that this e-mail exchange occurred before the investigation had begun when Defendant had an incomplete understanding of the circumstances, and was determining whether and on what grounds to investigate its suspicion that Plaintiff lied. The court noted that Defendant did not reach its disciplinary decision—let alone the basis for such—until the investigation concluded more than two months later. After that point, Defendant did not shift its explanation that the termination was based on Plaintiff’s dishonestly when reporting a personal injury. Because the record did not contain evidence of “shifting explanations,” the court found that a reasonable jury could not reasonably infer pretext.

Plaintiff argued that pretext could be inferred based on Defendant’s inconsistent application of its policies. The court, however, was not persuaded by this argument as (1) the examples of purportedly inconsistent application of rules were based on rules that did not pertain to the dishonesty/false-reporting policy on which the termination was based; and (2) evidence that Defendant conducted 162 investigations on the same rule with only 14 resulting in terminations lacked sufficient details to make meaningful comparisons to the investigation of Plaintiff.

Plaintiff also argued that Defendant’s antagonism and hostility toward his filing of a personal-injury report supported a reasonable inference that termination for dishonesty was a pretext. The court cited caselaw holding that a plaintiff must demonstrate that the individuals who decided to terminate him showed discriminatory animus, as opposed to other employees. Here, Plaintiff pointed to a co-worker’s slow response to the injury report, and a terminal manager’s dismissiveness about the alleged injury and discouragement to Plaintiff to file a personal injury claim. The court, however, found no evidence that these persons were in involved in the termination decision. Plaintiff also pointed to an email exchange in which one supervisor questioned whether Defendant should “take a run at” Plaintiff or “go after” him for possible rule violations. The court, however, found that—when viewed in context—these stray remarks were about whether to commence an investigation for lying, and did not reflect animus toward Carlson for filing a personal-injury report. Nor did the email directly relate to the decision to terminate Plaintiff’s employment more than two months later. The court found that a jury could not reasonably infer pretext from this evidence.

CONTRIBUTORY FACTOR CAUSATION; TEMPORAL PROXIMITY ALONE IS INSUFFICIENT TO CREATE A GENIUNE ISSUE OF MATERIAL FACT WHERE OTHER EVIDENCE SHOWED LACK OF KNOWLEDGE OF PROTECTED ACTIVITY BY THE RELEVANT DECISIONMAKERS; PROTECTED ACTIVITY WAS NOT RAISED DURING THE RAILWAY’S INTERNAL INVESTIGATION AND HEARING OF THE INTERVENING EVENTS THAT JUSTIFIED THE INVESTIGATION AND HEARING; THERE WAS NO EVIDENCE THAT THE DECISIONMAKERS WERE INFLUENCED BY PROTECTED ACTIVITY OR THE ALLEGED BIAS OF THE CHARGING OFFICIALS

SUMMARY JUDGMENT ON CONTRIBUTORY FACTOR CAUSATION GRANTED WHERE THE ONLY EVIDENCE SUPPORTING CAUSATION WAS TEMPORAL PROXIMITY, WHICH IS NOT IN ITSELF SUFFICIENT TO CREATE A GENUINE ISSUE SUFFICIENT TO AVOID SUMMARY JUDGMENT

In Henin v. Soo Line R.R. Co., No. 19-336 (D. Minn. June 14, 2021) (2021 U.S. Dist. LEXIS 110370), the court granted Defendant's motion for summary judgment where the only support for the contributory factor causation element of the FRSA retaliation claim was temporal proximity, which the courts have held is not sufficient standing alone to create a genuine factual issue. The court cited Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791-792 (8th Cir. 2014).

CONTRIBUTING FACTOR CAUSATION; FOUR YEAR GAP BETWEEN SAFETY COMPLAINT IN 2013 AND VERBAL ALTERCATION WITH SUPERVISOR THAT RESULTED IN ADVERSE EMPLOYMENT ACTION IN 2017; SUPERVISOR’S REFERENCE TO 2013 SAFETY COMPLAINT SUFFICENT TO ESTABLISH CONTRIBUTING FACTOR

On appeal, Respondent argued that the roughly four-year gap between the protected activity and the verbal altercation was too large to find that it contributed to the decision to cancel overtime, and that other factors motivated the supervisor, such as the supervisor’s frustration with the co-worker for involving Complainant as a union representative in the overtime dispute.

The ARB, however, found that substantial evidence supported the ALJ’s finding of contributory factor causation. The ALJ had noted that supervisor referenced the EEOC complaint during the altercation, and that the 2013 complaint had been made after Complainant heard this supervisor say that Complainant was “f—cking up 30 track.” The ALJ noted that: 1) the supervisor knew about the safety complaint; 2) the supervisor’s comment related to the safety complaint; 3) Complainant had made an EEOC complaint about the supervisor’s 2013 conduct relating to the safety complaint; and 4) the EEOC complaint was clearly on the supervisor’s mind during the 2017 altercation. The ARB stated that while “Respondent argues that there could have been other motivations for Ward’s behavior, Complainant needs only to prove that the protected activity contributed to the adverse action as a factor, not that it was the only or main motivation for the adverse action.”

CAUSATION; EVIDENCE OF HOSTILITY TO PLAINTIFF TWO YEARS PRIOR TO DISCIPLINARY ACTIONS AT ISSUE INSUFFICIENT TO DEFEAT SUMMARY JUDGMENT WHERE THERE NO EVIDENCE OF EVENTS LINKING THE TWO

In Jones v. BNSF Ry. Co., 18-cv-146 (D. Mont. Apr. 29, 2020) (2020 U.S. Dist. LEXIS 75585; 2020 WL 2062180), Plaintiff charged that BNSF disciplined and terminated him in violation of the FRSA at least in part because he was an outspoken advocate for predictive scheduling. The court rejected, at least partially, two of BNSF’s contentions, but granted summary judgment on the contributing factor causation and employer affirmative defense elements of a FRSA claim.

The court, reviewing the facts of the case, found that temporal proximity between the protected activity and the disciplinary investigation was not enough to show causation where Plaintiff had submitted a SIRP form only after the disciplinary action was initiated. Plaintiff pointed to a declaration indicating that hostility against Plaintiff may have originated when Plaintiff spoke up at a 2014 town hall meeting about the effect of erratic work schedules on staff fatigue. The court noted that there was not temporal proximity between the 2014 town hall meeting and the disciplinary actions taken in 2016, and that the record did not substantiate a chain of events between the two. The court also found that the record did not support a finding that the sole decisionmaker regarding the first “Level S” (i.e., serious) discipline was aware of the town hall meeting. The court noted that Plaintiff had not argued that a speeding event leading to a second Level S violation was not serious enough to warrant a suspension. The court concluded that Plaintiff’s argument was that he would not have been fired for the speeding event if there had not already been the first Level S discipline on his record. The court, however, found that a reasonable jury could not conclude that the first disciplinary action was retaliatory.

CONTRIBUTING FACTOR CAUSATION; FRCP 12(b)(6) MOTION; PLAINTIFF FAILED TO PLAUSIBLY ALLEGE CONTRIBUTING FACTOR CAUSATION WHEN THERE HAD BEEN A FOUR YEAR GAP BETWEEN PROTECTED ACTIVITY AND ADVERSE EMPLOYMENT ACTION

In Sirois v. Long Island R.R., No. 18-2858-cv (2d Cir. Jan. 14, 2020) (unpublished) (2020 U.S. App. LEXIS 1480; 2020 WL 209282), Plaintiff-appellant appealed from the district court’s grant of a motion to dismiss under FRCP 12(b)(6). Plaintiff alleged that Defendant violated the FRSAʹs anti‐retaliation provisions by changing her injury status from work‐related to non‐work‐related, resulting in the loss of certain benefits. The court noted that “[t]emporal proximity may support a prima facie inference that the protected activity was a contributing factor, but only where the protected act and the retaliation occur in quick succession.” Slip op. at 7 (citations omitted). The court noted that the Second Circuit has not drawn a bright line on when a temporal relationship is too attenuated to establish causal relationship, but instead exercises judgment on permissible inferences that can be drawn based on temporal proximity in the context of the particular case. In the instant case, over four years had passed from the protected activity of reporting the injury to the reclassification. The court held that “[a] temporal gap of over four years is too attenuated to support the requisite inference.” Id. at 8-9. The court held that Plaintiff “thus failed to plausibly allege that her protected activity was a contributing factor in the unfavorable treatment” and concluded “that the district court did not err when it dismissed Siroisʹs claim.” Id. at 9.

CONTRIBUTORY FACTOR CAUSATION; TEMPORAL PROXIMITY ALONE GENERALLY DOES NOT ESTABLISH CAUSATION; FACTFINDER MUST CONSIDER INTERVENING EVENTS; TEMPORAL PROXIMITY MAY HAVE LIMITED CAUSAL PERSUASIVENESS WHERE COMPLAINANT’S JOB IS MOSTLY ABOUT PROTECTED ACTIVITY

Despite its commonplace occurrence in the post-hearing opinions of ALJs, a “prima facie case” is usually associated with an inference and the investigatory phase of a whistleblower complaint, not proof after hearing. See, e.g., Zinn v. Am. Commercial Lines, ARB No. 10-029, ALJ No. 2009-SOX-025, Slip op. at 10 (ARB Mar. 28, 2012) (explaining the different phases of investigation and proof by a preponderance after an evidentiary hearing); Hoffman v. Nextera Energy, ARB No. 12-062, ALJ No. 2010-ERA-011, slip op. at 12 (ARB Dec. 17, 2013) (prima facie showing irrelevant once case goes to hearing before ALJ). As the Eleventh Circuit has noted, incorporation of the term “prima facie case” into whistleblower adjudication has “bred some confusion, chiefly because the phrase evokes the sprawling body of general employment discrimination law.” Stone & Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997) (citations omitted). At the evidentiary stage after hearing, the complainant is required to prove the elements by a preponderance of the evidence, including proof that protected activity was a contributing factor in the adverse action, 29 C.F.R. § 1982.109(a), and not merely allege circumstances sufficient to establish the four elements, including circumstances sufficient to raise the inference that the protected activity was a contributing factor, 29 C.F.R. § 1982.104(e)(2)(iv). Gale v. Ocean Imaging, ARB No. 98-143, ALJ No. 1997-ERA-038, slip op. at 9 (ARB July 31, 2002) (‘‘However, because this case has been fully tried on the merits, we move beyond the question of whether Complainant has presented a prima facie case to analysis of the evidence on the ultimate question of liability.’’); Palmer v. Canadian Nat’l Ry, IL Cent. R.R. Co., ARB 16-035, ALJ No. 2014-FRS-154, slip op. at 20 n.87 (ARB Jan. 4, 2017) (reissued with dissent) (comparing and contrasting the investigation stage with the burden of proof after hearing); Rookaird, 908 F.3d 461-62 (same).

Slip op. at 6-7.

In sum, the ARB found that these errors required a remand to weigh the evidence under the preponderance of the evidence standard. The ARB found that the errors in the ALJ’s causation analysis carried over to his analysis of Defendant’s affirmative defense as the ALJ again relied upon his perception of the merits of Defendant’s justifications and not its honestly held basis for the termination. The ARB stated that “The ALJ committed error by shifting the issue to be decided from retaliation for FRSA protected activity to the accuracy or merits of Union Pacific’s termination decision.” Id. at 13.

CONTRIBUTORY FACTOR CAUSATION; REPORT OF INJURY; CAUSAL INFERENCE BASED ON TEMPORAL PROXIMITY DIMINISHED BY INTERVENING EVENTS SHOWING A REASONABLE CONCERN BY EMPLOYER THAT COMPLAINANT WAS CHARGING OFFICIAL TIME WHILE ENGAGED IN PERSONAL ACTIVITIES; EMPLOYER’S SURVEILLANCE OF COMPLAINANT WAS A REASONABLE RESPONSE TO COMPLAINTS FROM CO-WORKERS ABOUT COMPLAINANT’S ACTIVITIES

In Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam), Complainant alleged in an FRSA complaint that Respondent interfered with his medical treatment and retaliated against him for reporting his injuries and making a safety complaint. The ARB found that substantial evidence supported the ALJ’s determination that Complainant’s reports of injuries had not contributed in any way to his censures.

Complainant suffered his first injury in December 2012. On April 19, 2013, he missed a physical therapy session that he said that he would attend during paid work time. Respondent censured Complainant within a week of discovering the abuse of company time. The ARB concurred with the ALJ’s finding that that the span of four months between the injury report and the censure lacked a strong temporal connection. The ARB wrote:

A short duration between adverse action and protected activity can constitute circumstantial evidence of causation but is not necessarily dispositive of contributing factor causation. Barker v. Ameristar Airways, Inc., ARB 05-058, ALJ No. 2004-AlR-012, slip op. at 7 (ARB Dec. 31, 2007). [Complainant’s supervisor’s] receiving a complaint [from a co-worker] about Wevers and discovering his abuse of work time served as intervening events that diminished any causal inference from temporal proximity with the December report of an injury. . . . The investigation into Wevers’s conduct was reasonable and unrelated to the injury report except for the incidental point that he should have been at a physical therapy appointment as part of his treatment stemming from the injury report.

Slip op. at 12.

The ALJ also found that Complainant’s injury report did not contribute to his discipline in October 2013. The ARB noted that the ALJ had found that the temporal proximity of nine to ten months between the October 2013 discipline and the December 2012 injury report was minimal, and that the ALJ found that non-retaliatory reasons accounted for the October discipline. Respondent had investigated Complainant’s work activities and observed Complainant taking a long lunch and stopping at places that did not have a clear work purpose. This investigation had been prompted in part from complaints from co-workers based on their concerns about work not being completed and increased work load because of Complainant’s light work schedule. The ARB noted that the ALJ “considered the covert performance surveillance as a routine response to the co-workers’ complaints and corroborating circumstances.” Id. The ARB stated that Respondent’s “investigation and discovery of Wevers’s wrongdoing constituted intervening events leading to the October censure and ten-day waived suspension.” Id. The ARB also noted that Complainant’s “letter of discipline was issued one day after the discovery of his wrongdoing.” Id.

The ALJ observed that Complainant’s evidence of causal contribution stemmed mainly from Respondent’s inability to prove the appropriateness of its disciplinary charge. The ARB found that “the ALJ correctly concluded that MRL was not burdened with proving the correctness of its disciplinary charge, but only that Wevers’s injury report or other protected activity did not cause its disciplinary charge in whole or in part.” Id. The ARB further noted that the ALJ “discounted contribution in part because of the light discipline Wevers actually received for his misuse of company time, which included censure letters, a waived suspension and notations in his personal file that would be removed if he had no further problems.” Id.

Stated Reason for Discipline

CONTRIBUTING FACTOR CAUSATION; APPLICATION OF ESTABLISHED DOWNSIZING POLICY AND COLLECTIVE BARGAINING AGREEMENT WAS SOLE CAUSE OF COMPLAINANT'S FURLOUGH

In Campbell v. National Railroad Passenger Corp (Amtrak), ARB No. 2020-0056, ALJ No. 2018-FRS-00012 (ARB Sept. 21, 2021) (per curiam), Complainant filed a complaint alleging that Respondent violated the FRSA and FSMA by furloughing her after she reported the improper storage of pillows, pillow cases, food, and beverages at one of Respondent’s station base. The ALJ found that Complainant failed to prove by a preponderance of the evidence that her protected activity was a contributing factor in the furlough decision. In a summary decision, the ARB affirmed the ALJ's decision. The ARB stated:

Substantial evidence supports the ALJ’s findings that Respondent’s reasons for terminating Complainant’s employment were clear and straightforward—based on its application of the previously established company-wide downsizing directive and the CBA. He also found that there was no indication of pretext. Thus, substantial evidence supports the ALJ’s finding that Complainant’s report of improper storage was not a contributing factor in her being furloughed. Accordingly, we summarily affirm the ALJ’s conclusion.

Slip op. at 4-5 (footnote omitted).

CONTRIBUTING FACTOR CAUSATION; COURT REJECTS ARGUMENT OF PRETEXT ON GROUND THAT RAILROAD REGULARLY COOKS UP REASONS TO DISCIPLINE EMPLOYEES WHO FILE INJURY REPORTS, WHERE RAILROAD HAD POLICY AGAINST MAKING FALSE STATEMENTS, AND RECORD SHOWED THAT PLAINTIFF VIOLATED THAT POLICY

PETITION FOR REVIEW OF DOL’S DISMISSAL OF FRSA RETALIATION COMPLAINT DENIED WHERE ALJ’S FINDINGS OF FACT WERE SUPPORTED BY SUBSTANTIAL EVIDENCE; TESTIMONY THAT EMPLOYER CONSIDERS AN ENGINEER’S LEAVING WORK WITHOUT PERMISSION TO BE A SERIOUS FORM OF INSUBORDINATION

In Hunter v. Administrative Review Board, USDOL, 795 Fed.Appx. 308 (5th Cir. Feb. 27, 2020) (per curiam) (unpublished) (No. 19-604426 ) (2020 U.S. App. LEXIS 6527; 2020 WL 969106), a locomotive engineer filed a claim of retaliatory termination in violation of the FRSA. The engineer had reported a wheel slip fault. His employer terminated his employment for leaving work before being relieved by a supervisor. The engineer claimed that the termination was in retaliation for reporting the wheel slip. The ALJ found that the engineer engaged in protected activity but had not established that this activity was a contributing factor in the termination, and that the employer demonstrated it would have taken the same adverse action in the absence of his protected activity. The ARB affirmed.

The Fifth Circuit denied the engineer’s petition for review, finding that the ALJ’s findings of fact were based on substantial evidence. The court noted that the ALJ had conducted a two-day hearing, during which supervisory employees all testified that “leaving work without permission was a brand of insubordination and a serious offense subject to discharge.” In addition, the ALJ found no evidence that the trainmaster’s knowledge of the engineer’s protected activity could be imputed to the relevant decisionmakers on the termination.

Fairness of Discipline

CONTRIBUTORY FACTOR CAUSATION; TEMPORAL PROXIMITY BASED ON ONGOING LITIGATION BEING A PERSISTENT PRESENCE IN THE MINDS OF THE ACTORS IN THE CASE

CONTRIBUTORY FACTOR CAUSATION; CIRCUMSTANTIAL EVIDENCE THAT MANAGERS’ ATTITUDE TOWARD COMPLAINANT BECAME HOSTILE AFTER HE HAD FILED A FRSA RETALIATION COMPLAINT

Temporal proximity

The ARB also observed that temporal proximity was only one of several factors that the ALJ had considered in regard to contributory factor causation.

Arbitration decisions

Respondent also argued that the ALJ failed to properly consider the fact that neutral arbitrators had upheld the suspensions and termination. The ARB stated:

An arbitration decision upholding an employer’s disciplinary decisions may help substantiate an employer’s explanation for its conduct, and it also may also be one piece of evidence suggesting that an employer did not discriminate or retaliate against its employee. However, arbitration decisions are not dispositive. Rather, the weight to be accorded to the arbitration decisions is left to the discretion of the tribunal, based on the particular facts and circumstances of the case.

Id. at 14 (footnote omitted). The ARB found that Respondent had not shown that the arbitration decisions must be given more weight than the ALJ accorded them.

Metro-North has not pointed to any precedent that bars the ALJ, in the exercise of his discretion and judgment, from considering the accused’s absence from the disciplinary proceedings, the impact that absence had on the records, or evident flaws in the records and decisions themselves, when weighing the probative value of arbitration decisions. We find no error in the ALJ’s determination about the appropriate weight to give the arbitration decisions, and Metro-North has not provided any legal basis for us to do so.

Other circumstantial evidence

CONTRIBUTORY FACTOR CAUSATION; REPORT OF INJURY; COMPLAINANT CANNOT PROVE CONTRIBUTION MERELY BASED ON EMPLOYER’S INABILITY TO PROVE APPROPRIATENESS OF DISCIPLINARY CHARGE; RESPONDENT DOES NOT HAVE BURDEN TO ESTABLISH CORRECTNESS OF CHARGE BUT ONLY THAT PROTECTED ACTIVITY DID NOT CONTRIBUTE TO IT

In Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam), Complainant alleged in an FRSA complaint that Respondent interfered with his medical treatment and retaliated against him for reporting his injuries and making a safety complaint. The ARB found that substantial evidence supported the ALJ’s determination that Complainant’s reports of injuries had not contributed in any way to his censures.

A short duration between adverse action and protected activity can constitute circumstantial evidence of causation but is not necessarily dispositive of contributing factor causation. Barker v. Ameristar Airways, Inc., ARB 05-058, ALJ No. 2004-AlR-012, slip op. at 7 (ARB Dec. 31, 2007). [Complainant’s supervisor’s] receiving a complaint [from a co-worker] about Wevers and discovering his abuse of work time served as intervening events that diminished any causal inference from temporal proximity with the December report of an injury. . . . The investigation into Wevers’s conduct was reasonable and unrelated to the injury report except for the incidental point that he should have been at a physical therapy appointment as part of his treatment stemming from the injury report.

Slip op. at 12.

"Cat’s Paw" Theory

CONTRIBUTORY FACTOR CAUSATION; RAILROAD’S SUPPLYING TO ADMINISTRATIVE BODY PERSONNEL RECORD THAT CONTAINED REFERENCE TO AN INCIDENT THAT SHOULD HAVE BEEN EXPUNGED PURSUANT TO SETTLEMENT OF EARLIER FRSA CASE; CAT’S PAW THEORY THAT REFERRAL OF RECORD WITH REFERENCE TO EARLIER INCIDENT HAPPENED BECAUSE PERSONS WITH RETALIATORY MOTIVE PLACED IT THERE WAS NOT SUSTAINABLE WHERE THERE WAS NO EVIDENCE THAT THIS SOMEHOW INFLUENCED CURRENT HR PERSONNEL (WHO HAD NO KNOWLEDGE OF THE EARLIER EVENTS) TO SUPPLY ENTIRE FILE TO ADMINISTRATIVE BODY

In Leiva v. Admin. Review Bd., 811 Fed.Appx. 237 (5th Cir. Apr. 28, 2020) (per curiam) (unpublished) (No. 19-60524) (2020 U.S. App. LEXIS 13870; 2020 WL 2078380), Leiva and Union Pacific Railroad Company had settled a FRSA complaint in 2015. One of the terms of the settlement required expungement of all references to the underlying July 2012 incident from Union Pacific’s records. Union Pacific also agreed that it would not rely on the July 2012 incident in any future disciplinary or employment decision. In the meantime, Union Pacific terminated Leiva for two safety violations, and Leiva’s union appealed the termination to another administrative body. In August 2016, a Union Pacific employee supplied Leiva’s disciplinary history to the administrative body. Leiva’s July 2012 incident appeared in the submission as one of 15 violations in Leiva’s disciplinary record. The administrative body affirmed Leiva’s termination.

Leiva filed a new FRSA complaint, alleging that the failure to expunge the July 2012 incident and informing the other administrative body of the incident was a FRSA violation. An ALJ concluded that the failure to expunge was a continuation of retaliation, and found in Leiva’s favor. The ARB, however, vacated the ALJ’s decision, holding that the failure to expunge was a violation of the settlement agreement which was to be enforced in federal district court. The Fifth Circuit sustained the ARB’s decision, albeit the court found that Leiva had failed to establish contributory factor causation rather than specifically affirming the ARB’s ruling on enforcement jurisdiction.

The court stated that Plaintiff was relying on a “cat’s paw” theory of causation, which requires a showing that a person with retaliatory animus used the decisionmaker to bring about the intended retaliatory action. Here, Leiva’s argument was that Union Pacific’s director of labor relations (Powell) submitted the July 2012 incident to the administrative body in 2016 because persons with the requisite knowledge of the 2012 protected activity had unlawfully put the false allegation in the personnel file. The court found that this argument stretches cat’s paw theory too far. The court stated:

Leiva has not pointed to evidence that anyone “with retaliatory animus used [Powell] to bring about [an] intended retaliatory action.” Zamora, 798 F.3d at 331. Indeed, Leiva has identified no evidence that anyone associated with the July 2012 incident or subsequent settlement was at all involved in the events of August 2016. We reject the argument that the initial inclusion of the July 2012 incident in Leiva’s file somehow influenced Powell to submit the entire file—which included the July 2012 incident along with several others—to the administrative body over four years later. Leiva has not shown by a preponderance of the evidence that his July 2012 protected activity was a “contributing factor” in Powell’s decision to submit his file to the administrative body in 2016.

Slip op. at 4.

CONTRIBUTORY FACTOR CAUSATION; COURT GRANTS SUMMARY JUDGMENT DISMISSING FRSA COMPLAINT WHERE THERE WAS NO EVIDENCE LINKING DISCIPLINARY HEARING ABOUT POSSIBLE VIOLATION OF WORKPLACE VIOLENCE POLICY WITH PLAINTIFF’S PROTECTED ACTIVITY; ALTHOUGH ONE SUPERVISOR WHO TESTIFIED AT DISCIPLINARY HEARING KNEW ABOUT PROTECTED ACTIVITY, HE DID NOT COMMUNICATE THIS INFORMATION TO DECISIONMAKERS AND THERE WAS NO EVIDENCE OF IMPERMISSIBLE BIAS BY SUPERVISOR SUFFICIENT TO INVOKE CAT’S PAW PRINCIPLE

In Petronio v. Amtrak, No. 19-cv-144 (S.D. N.Y. Oct. 2, 2019) (2019 U.S. Dist. LEXIS 171413), Plaintiff had reported several safety concerns at Penn Station via email to upper level management. About the same time, Amtrak was making staff changes at Penn Station. Plaintiff, who was local chairman for the SMART union, agreed to speak on behalf of a union member with a supervisor about a proposed bumping. In a second meeting, Plaintiff made a statement that the supervisor felt may have been a threat. Management advised the Assistant Division Engineer, John Collins, to ask Plaintiff what he meant before determining whether there had been a violation of Amtrak’s Workplace Violence Policy. Collins scheduled the meeting. There was some disagreement about what exactly was said and in what manner during the meeting — but it resulted in Plaintiff being escorted out and being withheld from service. It also resulted in Collins making a report to Amtrak’s charging officer. The Charging officer then charged Plaintiff with violations of Amtrak policies. A disciplinary hearing resulted in Plaintiff’s termination from employment. Plaintiff’s appeals were denied. Plaintiff filed a FRSA complaint with DOL, which was eventually kicked out to Federal district court.

The district court granted summary judgment in favor of Defendants. The court noted that “[t]here is a circuit split over which legal standard to apply in evaluating whether a protected activity was a contributing factor in an unfavorable employment decision,” with the Seventh and Eight Circuits requiring a plaintiff to prove “intentional retaliation” prompted by the employee’s protected activity, and the First, Third, Fourth, Sixth) Ninth, and Tenth Circuits apparently not requiring proof of “intentional retaliation.” The court further noted that the Second Circuit had not addressed the issue. The court determined that, even assuming the more “plaintiff-friendly” standard applies, there was no evidentiary support in the record supporting a finding, either directly or circumstantially, that Plaintiff’s protected activity played any role in Amtrak’s decision to initiate a disciplinary investigation which lead to Plaintiff’s discharge. The disciplinary actions were based solely on Plaintiff’s behavior during a heated exchange between Plaintiff and a supervisor. The court noted that there was no evidence that the hearing officer or the official who made the decision to terminate Plaintiff’s employment knew anything about Plaintiff’s safety reports at the time of the decision. The only person involved in the termination process who knew about the safety reports — Collins — was only a witness, and there was no evidence that he communicated this knowledge to the decisionmakers. The court was not persuaded by Plaintiff’s “cat-paw” argument:

For the cat’s paw principle to apply, there needs to be, at minimum, some evidence that the “individual shown to have the impermissible bias” has “played a meaningful role in the decisionmaking process.” Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272 (2d Cir. 2016); see also Staub v. Proctor Hospital, 562 U.S. 411, 421 (2011). For this reason, the circumstance where the cat’s paw principle applies generally involves “the supervisor advising the decision-maker or being intimately “involved in the decision.” Niedziejko v. Delaware & Hudson Ry. Co., No. 18-cv-0675 (GTS) (CFH), 2019 WL 1386047, at *4 (N.D.N.Y. Mar. 27, 2019); see also Lowery v. CSX Transp., Inc., 690 F. App’x 98, 100 (4th Cir. 2017); Johnston v. BNSF Ry. Co., 15-CV-3685, 2017 WL 4685012, at *8 (D. Minn. Oct. 16, 2017).

Slip op. at 16-17 (footnote omitted). The court found that in the instant case, there was no evidence that Collins harbored some impermissible bias in bringing the charge or testifying at the hearing. The court found that mere testimony is insufficient to create a cat’s paw theory. The court noted that Collins had not started the investigation on his own initiative, but rather because of Plaintiff’s argument with his supervisor — and even then only after consulting with a charging officer on how to proceed and after meeting with Plaintiff to hear his side of the story. Although the meeting with Plaintiff resulted in a heated exchange, there was nothing about the meeting that supported a connection with Plaintiff’s safety reports.

Summary Decision on Contributory Factor

CONTRIBUTORY FACTOR CAUSATION; PLAINTIFF’S OBSERVATION OF MARKED CHANGE IN SUPERVISOR’S ATTITUDE AFTER HE REPORTED INJURY AND REQUESTED MEDICAL LEAVE -- FROM ASSURING HIM THAT HE HAD DONE NOTHING WRONG IN DEFENDING HIMSELF IN AN ALTERCATION, TO FINDING THAT HIS ROLE IN THE ALTERCATION WARRANTED TERMINATION – WAS SUFFICIENT IN ITSELF TO SURVIVE MOTION FOR SUMMARY JUDGMENT

One of Defendant's arguments in its summary judgment motion was that there was no evidence that his injury report or leave request played any role in his termination. The court, however, found that Plaintiff’s observation that his supervisors’ “behavior changed markedly after he reported his injury and requested a medical leave, from assuring him that he had done nothing wrong and had nothing to worry about to determining that his role in the incident warranted termination” (Slip op. at 13)—was sufficient in itself to survive summary judgment. The court also stated that “the fact that the National Mediation Board found that Gilbert had not violated any rule that he had been terminated for violating . . . , further suggests that Union Pacific's justification for firing him was pretextual.” Id. at 13-14 (record citation omitted).

Similarly, the court found that there was sufficient evidence that Plaintiff’s evidence had not been initially considered to have violated the zero-tolerance policy because Plaintiff had been defending himself, that Defendant could not show by clear and convincing evidence (at least on summary judgment) that it would have terminated Plaintiff’s employment regardless of his injury report.

RETALIATORY MOTIVE; SUFFICIENT PLEADING OF

See casenote of Grantham v. CSX Transp., Inc., No. 19-cv-00065 (S.D. Ga. Mar. 7, 2022) (2022 U.S. Dist. LEXIS 39576) above in Motive, Animus, Intentional Retaliation (holding that proof of retaliatory animus is necessary for a prima case of intentional retaliation, but that summary judgment would be denied beause Plaintiff had pleaded sufficient facts for a reasonable jury to conclude there was retaliatory motive),

CONTRIBUTORY FACTOR CAUSATION; SUMMARY JUDGMENT GRANTED WHERE IT WAS UNDISPUTED THAT PLAINTIFF WORE A BULLETPROOF VEST TO WORK AFTER AN ALTERCATION WITH HIS SUPERVISOR, AND THAT DEFENDANT BELIEVED THIS WAS A DISCHARGEABLE OFFENSE AS IT CAUSED OTHER EMPLOYEES TO FEAR FOR THEIR SAFETY

In Foura v. National Railroad Passenger Corp. (AMTRAK), No. 19-cv-00394 (E.D. Pa. Sept. 16, 2020) (2020 U.S. Dist. LEXIS 169307; 2020 WL 5554465), Plaintiff wore a bulletproof vest to work about a week after reporting a physical altercation with his supervisor. A co-worker felt unsafe because of this and reported it to Amtrak police. The Amtrak police removed Plaintiff from the shop floor an investigation. Plaintiff was charged with violated Amtrak“s Standards of Excellence and Workplace Violence Policy. The court stated that ‘[t]he charges were based on the fact that the bulletproof vest made fellow Amtrak employee’s feel ‘threatened, intimidated and distracted, fearing for their safety. ’” Slip op. at 2-3 (citation to record omitted). Plaintiff was terminated from employment following a hearing officer’s determination that Amtrak proved its case. After an appeal, Plaintiff was reinstated after signing an agreement stating that the disciplinary record demonstrated that all charges against him were provide and were terminable offenses, and that the disciplinary process was not procedurally defective. In the interim, Plaintiff filed a FRSA retaliation complaint with OSHA, which was kicked out to Federal court after 210 days had passed without a decision from OSHA. Amtrak moved for summary judgment.

The court, viewing the facts in the light most favorable to Plaintiff, found for purposes of ruling on the summary judgment motion that Plaintiff’s report of the physical altercation was protected activity under FRSA §§ 20109(a)(1)(C) and § 20109(b)(1)(A).

The court, however, found that the protected activity was not a contributing factor to the termination. Plaintiff argued that there was temporal proximity between his report of the altercation and his removal from service. The court, however, found that the wearing of the bulletproof vest was an intervening event that broke any suggestion of causation based on temporal proximity. Plaintiff argued disparate treatment, but the court found that neither Plaintiff nor the supervisor had been disciplined for the altercation. Plaintiff wore body armor to work while the supervisor did not.

Plaintiff argued that the supervisor was generally antagonistic towards him. The court, however, found that the evidence showed only antagonism prior to the protected activity, and not as the result of it. The court also found that the supervisor did not decide to terminate Plaintiff, nor were his actions the proximate cause of it.

Plaintiff argued pretext, based on the charges being inconsistent with the facts of the case and the harshness of the punishment. The court cited caselaw about what is necessary to show pretext and found that Plaintiff could not meet those tests, as it was undisputed that Plaintiff wore body armor to work and that Amtrak believed that doing so justified termination.

Plaintiff argued that his protected activity and his termination were “inextricably intertwined” creating an inference of causation. In support, Plaintiff argued that the hearing officer had found against him at least in part based on the altercation. The court was not persuaded:

These arguments miss the mark. It doesn’t matter if the altercation is “inextricably intertwined” with Mr. Foura’s termination. The altercation is not a protected activity under the FRSA. The protected activity was Mr. Foura’s reporting of the event to his supervisor. Mr. Foura’s report of the altercation and his subsequent termination were distinct events, not one continuous chain. Amtrak’s investigation of Mr. Foura’s conduct began after he wore body armor to work, not when he reported Mr. Jefferson’s conduct. In addition, the disciplinary hearing focused on whether the vest distracted and instilled fear in his coworkers. Mr. Foura discussed his altercation with Mr. Jefferson to explain why he felt he was justified to wear the body armor to work. The altercation itself was not actually at issue during the disciplinary hearing.

Id. at 8.

In sum, the court wrote:

Actions have consequences. Mr. Foura chose to wear a bulletproof vest to work. In this day and age, he should have known that doing so carried a risk of disciplinary action. He has not mustered evidence to show that Amtrak’s response was anything other than a normal employer’s response to conduct that created an elevated risk of workplace violence. The Court will therefore grant Amtrak’s motion. An appropriate Order follows.

Id.

SUMMARY JUDGMENT DENIED WHERE REASONABLE JUROR COULD FIND CONTRIBUTORY FACTOR CAUSATION BASED ON THE FACT THAT THE RAILROAD’S REVIEW OF PLAINTIFF’S SOCIAL MEDIA POSTS OCCURRED WITHIN ONE WEEK AFTER PLAINTIFF’S REPORT OF AN ON-THE-JOB-INJURY

SUMMARY JUDGMENT DENIED ON DEFENDANTS’ AFFIRMATIVE DEFENSE WHERE REASONABLE JUROR COULD FIND THAT, BY TIME OF INVESTIGATION LEADING TO PLAINTIFF’S FIRING, DEFENDANT KNEW THAT PLAINTIFF’S SOCIAL MEDIA POSTING WAS ONLY AN “IDLE THREAT” AND THAT PLAINTIFF WAS NOT ACTUALLY GOING TO REFUSE CREW CALLS

In Carman v. Cent. of Ga. R.R. Co., No. 18-cv-00230 (M.D. Ga. Aug. 7, 2020) (2020 U.S. Dist. LEXIS 141268; 2020 WL 4574492), Plaintiff (Carman) was a conductor for Central of Georgia Railroad Company. He alleged that he was terminated in retaliation for reporting the on-the-job injury. An Assistant Division Superintendent (Brockman) had reviewed Plaintiff’s social media posts and concluded that Plaintiff had threatened to cause the railroad to “feel some pain” in regard to its mark off policy. Plaintiff was terminated from employment for conduct unbecoming an employee, in violation of the railroad’s Safety and Conduct General Rule 900.

Defendants filed a motion for partial summary judgment. Defendants first contended that Plaintiff could not establish that his protected activity was a contributing factor in his termination, and even if contributing factor causation could be established, Defendant’s evidence clearly established that Plaintiff would have been fired anyway. The court, however, found that genuine facts existed that precluded summary judgment on contributory factor causation. Specifically, Defendants started investigating Plaintiff within a week after he reported his injury.

In regard to its affirmative defense, Defendants contended that the Assistant Division Superintendent had a good faith, honest belief that Plaintiff violated the Safety and Conduct General Rule by threatening to disrupt Defendants’ operations. Defendants argued that the court must accept the Assistant Division Superintendent’s statement on this point as true, citing Stone & Webster Construction, Inc. v. U.S. Department of Labor, 684 F.3d 1127, 1132–33 (11th Cir. 2012). The court was not persuaded that Stone & Webster was on point as it was about whether the ARB applied the substantial evidence standard for review of an ALJ’s findings of fact—the 11th Circuit finding that the ARB erred in substituting its own findings of fact. Here, in contrast, the court stated that

. . . the relevant question is whether there is a genuine fact dispute on whether Brockman held a good faith, honest belief that Carman violated Rule 900. A reasonable juror could conclude that Brockman did not actually believe that Carman's June 30 statement in a comment thread among friends on Facebook was a true threat against the railroad. Brockman himself described the comment as an "idle threat," and the record viewed in the light most favorable to Carman would permit a juror to conclude, based on all the other comments and what actually happened after the June 30 Facebook post, that Brockman understood by the time of his investigation that Carman did not intend to refuse crew calls when he was needed at the railroad. Based on this genuine fact dispute, summary judgment is inappropriate.

Slip op. at 17 (footnote omitted).

In Williams v. Metro-North R.R., Nos. 17-CV-3092, 17-CV-9167, 18-CV-7793, 17-CV-7758, 18-CV-8350 (S.D. N.Y. Mar. 27, 2020) (2020 U.S. Dist. LEXIS 53914; 2020 WL 1489832) (Opinion and Order), Plaintiff, who was a coach cleaner for Metro-North, filed pro se a series of actions, one count of which was a FRSA retaliation claim.

In the absence of such allegations, or any other factual context surrounding any “reporting” by Plaintiff of the cleaning incident, the Court cannot plausibly infer retaliatory intent. See Niedziejko v. Del. & Hudson Ry. Co., No. 18-CV-675, 2019 WL 1386047, at *44 (N.D.N.Y. Mar. 27, 2019) (collecting cases and explaining that gaps in more than two months between a report and an adverse action are too attenuated to raise an inference of discriminatory animus or retaliatory intent); Lockhart v. Long Island R.R. Co., 266 F. Supp. 3d 659, 664 (S.D.N.Y. 2017) (“Lockhart I”) (requiring some indication of “intentional retaliatory animus” to support a FLSA retaliation claim), aff’d sub nom. Lockhart II; cf. Nichik v. N. Y. C. Transit Auth., No. 10-CV-5260, 2013 WL 142372, at *5 (E.D.N.Y. Jan. 11, 2013) (denying defendant’s motion for summary judgment because there was “direct and circumstantial evidence” that retaliatory animus was a contributing factor in the unfavorable personnel action).

CONTRIBUTING FACTOR CAUSATION; COURT GRANTS SUMMARY JUDGMENT AGAINST PLAINTIFF BASED ON GUNDERSON FACTORS

In regard to Plaintiff’s reports of unsafe trucks, the court found not a scintilla of evidence suggesting that they were a contributing factor in Plaintiff’s dismissal. The court applied the five-part test from Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969 (8th Cir. 2017), and found that each relevant factor favored Defendant. First, the disciplinary investigation that led to Plaintiff’s discharge was exclusively concerned with the insubordination with no mention whatsoever of the condition of company trucks. Second, Plaintiff’s multiple incidents of insubordination and refusal to work during an emergency were intervening events that independently justified disciplinary actions. Third, Plaintiff was represented by union counsel throughout the disciplinary proceedings and the dismissal was upheld by both the railroad internally and by an independent arbitration panel. The fourth factor was inapposite because DOL never completed its investigation. Factor five weighed in Defendant’s favor because there was no showing that the lower-level supervisor accountable for addressing Plaintiff's safety complaints about the trucks played any role in the adjudication of the insubordination charges. The court noted that the evidence of record showed that repairs were made when needed, and that Plaintiff had never been disciplined for his frequent reports on truck conditions. The court noted that the manager never told Plaintiff to stop asking for truck repairs, or had even complained about Plaintiff’s reports. The court found the admissible evidence, even when considered in the light most favorable to Plaintiff, made it clear that Plaintiff was removed from service for multiple instances of insubordination compounded by an existing disciplinary record.

Reviewing Plaintiff’s questioning of the foreman’s qualifications under 49 U.S.C § 20109(a)(2), the court noted that Plaintiff had not pointed to any Federal law, rule or regulation that established minimum qualifications for taking men onto the tracks to work. Although Plaintiff stated that his training and experience suggested that proper procedures had not been followed, the court stated that the “statute [at 49 U.S.C § 20109(a)(2)] plainly requires pointing to a violation of a Federal law, rule, or regulation. Here we have no such law, rule, or regulation.” The court also found that the report about the foreman’s qualifications did not fall within 49 U.S.C § 20109(b)(1), as Plaintiff had “not provided a scintilla of evidence showing that [the foreman’s] leading the men onto the tracks that night was objectively—or even subjectively—a ‘hazardous safety or security condition’ under 49 U.S.C § 20109(b)(1)(A).” Slip op. at 18. The court found Plaintiff’s report to be objectively unreasonable because there was no evidence of record that the foreman was not qualified, and in fact, the evidence pointed to the contrary. The court found Plaintiff’s report also to be subjectively unreasonable as shown by the facts that Plaintiff did not refuse to work after the foreman gave the safety briefing, that Plaintiff’s own testimony was that because of the nature of the work being done—the foreman’s giving the briefing was not a huge risk factor, and that Plaintiff never brought a formal safety challenge about the foreman’s qualifications.

The court also found that the qualifications complaint was not a contributing factor in Plaintiff’s dismissal, again applying the Gunderson factors.

CONTRIBUTORY FACTOR CAUSATION; SUMMARY JUDGMENT NOT WARRANTED WHERE REASONABLE JURY COULD FIND THAT DIVISION ENGINEER HAD DISCRIMINATORY ANIMUS AND HAD INFLUENCED DISCIPLINARY DECISION MAKER, AND WHERE COMPARATOR EMPLOYEE EVIDENCE SHOWED LESSER DISCIPLINE WHERE OTHER EMPLOYEES HAD NOT ENAGED IN PROTECTED ACTIVITY

CONTRIBUTORY FACTOR CAUSATION; MERE FACT THAT EMPLOYER DECIDED TO SURVEIL PLAINTIFF DOES NOT SUPPORT A FINDING OF CONTRIBUTIJNG FACTOR CAUSATION IN RESULTING DISCIPLINE

CONTRIBUTORY FACTOR CAUSATION; MERE FACT THAT EMPLOYER GOT FACTS WRONG IN DISCIPLINARY INVESTIGATION DOES NOT SUPPORT A FINDING OF CONTRIBUTORY FACTOR CAUSATION WHERE EMPLOYER BELIEVED IN GOOD FAITH THAT PLAINTIFF HAD COMMITTED OFFENSE

CONTRIBUTORY FACTOR CAUSATION; A REASONABLE JURY COULD NOT FIND THAT MERE FACT THAT PLAINTIFF HAD ENGAGED IN PROTECTED ACTIVITY IN HIGH VOLUME SHOWED CONTRIBUTORY FACTOR CAUSATION BECAUSE IT WOULD BE ILLOGICAL FOR DEFENDANT TO SUDDENLY DECIDE TO RETALIATE AGAINST HIM FOR DOING SOMETHING IT KNEW HE HAD BEEN DOING FOR A LONG TIME

CONTRIBUTORY FACTOR CAUSATION; SUMMARY JUDGMENT; HISTORY OF DISCIPLINE OF PLAINTIFF DOES NOT PRECLUDE AN INFERENCE OF RETALIATION WHERE OTHER CIRCUMSTANTIAL EVIDENCE OF RETALIATORY MOTIVE EXISTS

In Sanders v. Burlington Northern Santa Fe Ry., No. 17-cv-5106 (D. Minn. Oct. 24, 2019) (2019 U.S. Dist. LEXIS 184105; 2019 WL 5448309), the court denied Defendant’s motion for summary judgment on the issue of contributory factor, finding that a jury could find that protected activity was a contributing factor to Plaintiff’s termination for time theft. The court first determined that Plaintiff did not have direct evidence of retaliation. The court, however, determined that there was sufficient circumstantial evidence to go to the jury.

First, Plaintiff had presented recordings that reasonably could be characterized as showing that a division engineer had discriminatory animus against Plaintiff for the number of track inspection slow orders Plaintiff entered. The court found that a reasonable jury could find that the division engineer was involved in the decision to charge Plaintiff with time theft and the subsequent decision to fire him. Although an investigatory team member testified that she independently concluded that dismissal was the appropriate sanction and did not rely at all on the division engineer’s interpretation, the court found that a jury could decide her testimony was not credible on that point, noting evidence that a jury might consider in that regard. Because of this, the court distinguished Gunderson v. BNSF Ry. Co., 850 F.3d 962 (8th Cir. 2017), in which there was no evidence that immediate supervisors had done anything except forward a complaint about the employee to the general manager.

Second, Plaintiff presented comparator evidence to show other employees who had not engaged in protected activity received lesser discipline after facing similar accusations of time-reporting dishonesty.

The court, however, noted a few types of circumstantial evidence that did not support a finding of contributory causation. First, the time gap between the last protected activity and the termination were not particularly close.

Second, the court found that Defendant’s decision to surveil Plaintiff, standing alone, did not support a finding that his protected activity was a contributing factor in the resulting discipline:

In BNSF v. U.S. Dep’t of Labor, the Eighth Circuit held that “a showing that protected activity initiated a series of events leading to an adverse action does not satisfy the FRSA’s contributing factor causation standard.” 867 F.3d at 946. In other words, the mere fact that an employee’s protected activity caused his employer to more closely scrutinize the employee’s record in the hopes of finding disciplinary violations, without any more evidence, is not enough to demonstrate that the protected activity was a contributing factor in whatever disciplinary outcome results. Id. at 946–47.

Slip op. at 34-35.

The court further found that “even if Sanders is correct that he did not falsify his time records—even if BNSF’s hearing process simply got it wrong—that fact on its own does not establish pretext if BNSF possessed a good-faith belief that he committed the time theft with which he was charged.” The court cited authority stating that courts do not sit as super-personnel departments, re-examing an employer’s disciplinary decision. The court stated: “In short, BNSF acting in good faith but getting its investigation wrong wouldn’t be enough to establish a prima facie case, but BNSF reaching the decision it did at least in part to retaliate against Sanders for his protected activity would.” Id. at 35.

Third, the court determined that a reasonable jury could not conclude that “every single one of the thousands of track defects he reported, and every single one of the hundreds of times he pulled tracks out of service or entered a slow order . . . contributed in some way over a period of many years to BNSF’s April 2016 decision to fire him.” Id. The court stated that “[b]aked into Sanders’s position is the undisputed fact that he had been engaging in this form of protected activity for a very long time, and in a very large volume. But none of those prior actions ever led to adverse action being taken against him. . . . Sanders does not point to any evidence suggesting why BNSF would take the seemingly illogical step of suddenly decided to retaliate against him for doing something it knew he had been doing for a long time.” Id. at 35-36(citation omitted).

The court acknowledged that a jury could conclude Plaintiff’s termination was not-retaliatory based on past discipline, the court found that a history of discipline does not preclude an inference of retaliation where other circumstantial evidence of retaliatory motive exists.

CONTRIBUTORY FACTOR CAUSATION; SUMMARY JUDGMENT GRANTED WHERE PLAINTIFF’S LATE REPORT OF AN INJURY VIOLATED A WELL-ESTABLISHED WORK RULE THAT PLAINTIFF WAS AWARE OF; DEFENDANT DID NOT HAVE A PATTERN OF RETALIATION FOR REPORTING INJURIES; COMPLAINANT ADMITTED THAT THE DECISIONMAKERS ON HIS DISCHARGE DID NOT HAVE RETALIATORY MOTIVES BASED ON REPORTING AN INJURY; TERMINATION DECISION WAS BASED ON A DELIBERATIVE, OBJECTIVE PROCESS; ONLY RELEVANT EVIDENCE PRESENTED BY COMPLAINANT WAS HIS OWN DEPOSITION TESTIMONY ABOUT A PURPORTED CONVERSATION WITH AN UNNAMED CLAIMS AGENT FOUR YEARS EARLIER

To determine whether the circumstances raise an inference of retaliatory motive in the absence of direct evidence, we consider circumstantial evidence such as the temporal proximity between the protected activity and the adverse action, indications of pretext such as inconsistent application of policies and shifting explanations, antagonism or hostility toward protected activity, the relation between the discipline and the protected activity, and the presence of intervening events that independently justify discharge. We also consider evidence of the employer’s nonretaliatory reasons for the adverse action.

Id. at 21, quoting Hess, 898 F.3d at 858 (internal quotation marks and citation omitted). Reviewing the undisputed facts of the case, the court found that “no reasonable fact-finder could conclude that BNSF terminated Neylon’s employment because Neylon reported his injury; rather, the evidence establishes that BNSF terminated Neylon’s employment because Neylon late-reported his injury in violation of numerous BNSF employment plans, rules, and policies.” Id. The court also found that Plaintiff “failed to submit evidence creating any inference of a retaliatory motive on BNSF’s part or refuting the following evidence, all of which indicates a lack of such motive. . . . ” Id.

The court noted several specific factors:

Defendant had well-established plans, rules, and policies specifying that termination could occur if an employee committed a Serious Rule Violation — which included late reporting of an injury — during a review period for a prior violation, and in the instant case, there was no question that Plaintiff late-reported his injury during such a review period and that he was aware of the rule and its implications.
During the relevant time period, BNSF did not have a pattern of retaliating against employees for reporting an injury.
Complainant had conceded that he was not claiming the BNSF employees involved in deciding whether his employment should be terminated retaliated against him for reporting a work-related injury.
BNSF made the termination decision in a manner that reflected a deliberative, objective process, and not retaliatory animus.
The only “marginally relevant evidence of possible animus” Plaintiff presented was his deposition testimony that an unnamed claims agent handling an injury from four years prior told Plaintiff that all injuries reports are kept on record, and that multiple injuries could lead to punishment.

XI. AFFIRMATIVE DEFENSE / CLEAR AND CONVINCING EVIDENCE STANDARD

AFFIRMATIVE DEFENSE; DEFENDANT MET THE CLEAR AND CONVINCING EVIDENCE BURDEN OF PROOF WHERE, THE EVIDENCE SHOWED THAT PLAINTIFF’S PROTECTED ACTIVITY CONTRIBUTED VERY LITTLE TO THE DECISION TO FIRE PLAINTIFF, AND THAT PLAINTIFF WOULD HAVE BEEN FIRED FOR GROSS DISHONESTY AND INSUBORDINATION IN THE ABSENCE OF THE PROTECTED ACTIVITY; THE PROTECTED ACTIVITY (CONDUCTING AN AIR TEST) WAS ROUTINE AND DID NOT RESULT IN THE FIRING OF TWO WORKERS WHO HAD ALSO CONDUCTED A TEST, BUT WHO UNLIKE PLAINTIFF, HAD NOT BEEN CONSIDERED TO HAVE ACTED DISHONESTLY OR INSUBORDINATELY

In Parker (Personal Representative of Estate of Rookaird) v. BNSF Ry. Co., No. 14-cv-00176 (W.D. Wash. Mar. 28, 2022) (2022 U.S. Dist. LEXIS 55654), Rookaird sued Defendant BNSF Railway Company ("BNSF") under 49 U.S.C. § 20109(d)(3), alleging that the railway violated the anti-retaliation provision of the Federal Railroad Safety Act ("FRSA"). A jury had found in Rookaird’s favor, but the Ninth Circuit vacated the jury verdict and remanded for re-trial on certain issues. On remand, the parties stipulated to a bench trial. The district court found that Rookaird was fired, in part, for his inefficiency in getting cars moved. The court found that the inefficiency was partly caused by Rookaird’s decision to conduct an air test, and that his refusal to stop the air test was protected activity. The preponderance of the evidence was that Rookaird’s refusal to stop an air test was a contributing factor in his termination. Thus, the burden shifted to Defendant to show by clear and convincing evidence that it would have terminated Rookaird’s employment in the absence of the protected activity. The court found that Rookaird was fired for many reasons unrelated to his inefficiency, and that Defendant met the clear and convincing evidence standard.

Specifically, Rookaird was fired for gross dishonesty, having failed to sign his FRA tie-up timeslip and having falsely recorded his tie-up time. The court found that BNSF believed that this dishonesty was significant because of its federal reporting obligations and the associated potential fines. Rookaird was also fired for insubordination, having twice disobeyed a BNSF assistant superintendent’s directives to tie-up and go home, and also starting a heated argument with a coworker. The court found that both gross dishonesty and insubordination were single, dismissible violations under Defendant’s disciplinary policy.

The court also found that, although the air test was a contributing factor in the firing, it contributed very little. The supposed inefficiency was based on Rookaird and his crew working for about five-and-a-half hours before they were called in. The air test only accounted for about 20 to 40 minutes of that time. Moreover, no BNSF officer instructed Rookaird to stop the air test – evidence that the test played only a small part in BNSF’s overall decision. The court also found that the significance of the air test was undermined by its routine nature, being a test that was conducted at BNSF hundreds of times a day or more. Rookaird had conducted such air tests several times in the prior weeks without incident, which was further evidence that the test played only a small part in the termination decision. Moreover, two of crew members performed the same air test but were not fired because, unlike Mr. Rookaird, they were not insubordinate, and they did not improperly complete their tie-up timeslips. The court found that this demonstrated that, absent the air test, BNSF would have fired Mr. Rookaird anyway because of his gross dishonesty and insubordination.

AFFIRMATIVE DEFENSE ESTABLISHED WHERE COMPLAINANT HAD MADE A REMARK AT WORK THAT HE FELT LIKE KILLING SOMEONE

ARB REVIEW; ARB FOUND IT UNNECESSARY TO REVIEW PARTIES ARGUMENTS ON APPEAL ABOUT THE ALJ'S FINDINGS ON PROTECTED ACTIVITY AND CONTRIBUTORY FACTOR CAUSATION WHERE THE RECORD SUPPORTED THE ALJ'S CONCLUSION THAT RESPONDENT ESTABLISHED ITS AFFIRMATIVE DEFENSE

In Figgins v. Grand Trunk Western Railroad Co., ARB Nos. 2020-0001 & -0002, ALJ No. 2014-FRS-00119 (ARB Feb 28, 2022) (per curiam), the ALJ determined that Complainant had engaged in certain protected activity, and assumed arguendo that other activity was protected under the FRSA. The ALJ, however, found that Respondent proved by clear and convincing evidence that it would have suspended and discharged Complainant in the absence of any FRSA-protected activity. Both parties appealed to the ARB. The ARB found it unnecessary to address the parties’ appeals of the ALJ's rulings on protected activity and contributory factor causation, because the record supported the ALJ's conclusion that Respondent established its affirmative defense.

In this case, Complainant had not appealed the ALJ's finding that his suspension only reflected ordinary practice in the course of business at Respondent. As to the discharge, Complainant had made a remark about "killing someone," which Respondent had taken very seriously. Moreover, a union representative testified that Respondent's rules prohibited making such remarks. The ARB affirmed the ALJ’s conclusions as supported by substantial evidence and in accordance with the law. The ARB stated:

The record supports the ALJ’s conclusion that Bistis decided to discharge Figgins pursuant to Rule H because: “(1) Mr. Figgins’s remark in the workplace about ‘killing someone’ was unprecedented, and (2) when evaluating the potential threat posed by Mr. Figgins to the workplace, [Bistis] ‘just didn’t have the luxury to get that one wrong.’”

Slip op. at 7, quoting ALJ decision (footnotes omitted).

AFFIRMATIVE DEFENSE; LACK OF EVIDENCE REGARDING SIMILARLY SITUATED EMPLOYEES DISCIPLINED FOR THE SAME REASONS AS COMPLAINANT

AFFIRMATIVE DEFENSE; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT RULES THAT COMPLAINANT WAS CHARGED WITH VIOLATING WERE VAGUE AND THAT THE RECORD DID NOT CLEARLY ALIGN WITH THE CHARGES OR THE SEVERITY OF THE DISCIPLINE IMPOSED

In March v. Metro-North Commuter Railroad Co., ARB No. 2021-0059, ALJ Nos. 2019-FRS-00032, -00035 (ARB Jan. 21, 2022) (per curiam), the ALJ determined that Respondent failed to carry its heavy burden of proof on its affirmative defense, noting that Respondent had not offered evidence regarding similarly situated employees who were disciplined for the same reasons as Complainant, and that the rules Complainant charged with violating were vague and easily manipulated for retaliatory purposes. The ALJ noted that Respondent had not provided evidence defining its rules or establishing how they were enforced. The ALJ found that the record did not clearly align with the charges brought against Complainant or the severity of the discipline imposed.

The ARB stated that although Respondent argued on appeal that there were no similarly situated employees to whom Complainant could be compared, it had not offered any rebuttal evidence to the other considerations the ALJ discussed about the vagueness of the rules and their application to Complainant—considerations which the ARB concluded were substantially supported by the evidence in the record.

AFFIRMATIVE DEFENSE WHERE THERE WAS A VIOLATION OF RAILROAD’S POLICY ON UNTIMELY REPORTING OF AN INJURY; THIS SITUATION REQUIRES EVALUATION OF EXTRINSIC FACTORS INCLUDING THE EMPLOYER’S JUSTIFICATION FOR THE ACTION AND THE CONSISTENCY WITH WHICH THE EMPLOYER APPLIES THE POLICY

AFFIRMATIVE DEFENSE; ARB DECLINED TO CONSIDER COMPLAINANT’S ARGUMENT THAT BNSF’S LATE-REPORTING POLICY WAS UNFAIR AND UNREASONABLE; DOL’S TASK IS NOT TO ASK WHETHER THE REPORTING POLICY “RINGS WELL,” BUT ONLY WHETHER RESPONDENT RETALIATED AGAINST COMPLAINANT FOR FRSA PROTECTED ACTIVITY

Factual and Procedural Background

Complainant, who worked as a conductor for BNSF, had been given “Level S” (i.e., “serious”) “record suspension” (i.e., a suspension recorded in the employee’s personnel file, but which permitted the employee to continue to work with pay) for not timely reporting an injury, which in this case may have been an aggravation of a prior injury. Five months later, Complainant and a co-worker were investigated for speeding and passing through a crossing without sounding the whistle. The investigation resulted in a finding of Level S violations for both employees. Due to BNSF’s progressive discipline policy, Complainant was discharged for having two offenses within the relevant time period. Complainant then filed an FRSA complaint with OSHA alleging that the record suspension was retaliatory. The complaint was later amended to allege that Complainant would not have been discharged, but for the previous discipline for late-filing of an injury report. OSHA found in Complainant’s favor, and BNSF requested an ALJ hearing.

The ALJ concluded that Complainant engaged in FRSA-protected activity, and that BNSF’s decision to discipline Complainant was “inextricably intertwined” with that protected activity. The ALJ, however, also determined that BNSF established by clear and convincing evidence that it would have disciplined Complainant for the late report and safety violation even if he had not engaged in protected activity. On appeal, the ARB held that the ALJ erred in applying the “inextricably intertwined” analysis, recognizing that this was the precedent at the time of the ALJ’s decision, but explaining that the ARB had subsequently determined that such analysis departed from and circumvented the appropriate statutory analysis. The ARB, however, affirmed the ALJ’s determination that BNSF’s established the affirmative defense.

Complainant appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit issued an unpublished Memorandum remanding the case to the ARB for further proceedings. Thorstenson v. U.S. Dep’t of Labor, 831 F. App’x 842 (9th Cir. 2020) (unpublished). The court found that the circumstances of the case “made it virtually impossible for Thorstenson to know he had experienced a new injury in time to comply with BNSF’s 72-hour reporting rule.” Id. at 843. The court also concluded that the ARB erred by imposing “a new burden of proof for causation under which FRSA claimants must demonstrate that the protected activity was a proximate cause of the adverse action.” Id.

Law of the Case Doctrine

In its Decision an Order on Remand, the ARB first set the context by reviewing its finding from its earlier decision and Complainant’s brief before the Ninth Circuit. It then carefully analyzed the Ninth Circuit’s decision, and concluded that the court had only addressed one argument concerning the affirmative defense holdings – that the ARB erred in rejecting Complainant’s argument that BNSF’s policy regarding reporting of workplace injuries was “unreasonable” and “unduly burdensome.” The ARB noted that the Ninth Circuit had expanded on this argument with several policy grounds, reasoning that compliance with the policy could not reasonably be met and was “virtually impossible” under certain circumstances. The ARB then turned to its mandate on remand under law-of-the-case doctrine.

In the analysis that it did do, the Ninth Circuit’s memorandum characterized the policy as burdensome, unreasonable, and retaliatory under these circumstances. The Ninth Circuit wrote: “[Thorstenson] was effectively disciplined for the protected activity of reporting a workplace injury.” As law of the case, we adopt the Ninth Circuit’s position that BNSF violated the statute, but we construe this to apply to Thorstenson’s contributing factor phase.
A contrary opinion might look at the Ninth Circuit’s language “unduly burdensome,” “unreasonable,” and “retaliatory” as conclusions that encapsulate or indirectly address BNSF’s affirmative defense in so far as they are negatives concerning BNSF’s policy. But as stated above, the Ninth Circuit’s opinion does not mention the affirmative defense or the FRSA’s burden framework and factors such as “unreasonable” and “burdensome” do not necessarily implicate the affirmative defense. By its very nature, the affirmative defense assumes that a violation has taken place, but continues the analysis by comparing the respective weights of the retaliatory reasons with the non-retaliatory reasons and asks the fact-finder to make a finding in a counterfactual or hypothetical situation as if the protected conduct had not occurred. Because the Ninth Circuit’s opinion did not discuss the affirmative defense and considered facts that are inapplicable to Thorstenson’s situation and BNSF’s policy, we conclude that a holding on BNSF’s affirmative defense is not the law of the case.

Id. at 14 (footnote omitted).

Application of Affirmative Defense to Situation Where Filing of Injury Report Resulted in Adverse Action for Untimely Reporting

Based on how it construed the Ninth Circuit’s Memorandum, the ARB again found that the ALJ’s findings on BNSF’s affirmative defense were supported by substantial evidence.

The ARB noted that the “affirmative defense asks the fact-finder to determine if the employer has proven by clear and convincing evidence that it would have taken the same adverse action in the absence of protected activity.” Id. at 14-15 (footnote omitted). The ARB then noted its agreement with the ALJ that

…in cases such as this one where the protected activity of filing an injury report initiated events that led to the adverse action for untimely reporting, the traditional application of “in the absence of protected activity” leads to a more complex analysis. As a result, the fact-finder may evaluate the employer’s affirmative defense by examining several extrinsic factors including the employer’s justification for the action and the consistency with which the employer applies the policy.

Id. at 15 (footnotes omitted). Here, substantial evidence supported the ALJ’s determination that Complainant had committed two Level S violations within a short time period. The ARB noted the ALJ’s finding that Complainant and other employees filed timely injury reports with no repercussions, but that several employees had been disciplined for late reporting. The ALJ found that BNSF does not impose discipline for timely reporting of injuries, and noted that Complainant himself had made several prior injury reports with no discipline. The ALJ found that Complainant knew about the policy, and under the facts of the case could have complied with it, but failed to do so. The ALJ determined that if Complainant was uncertain whether the policy applied to the instant situation where the injury might have been an aggravation of a prior injury but with symptoms serious enough to require medical attention, he could have asked his supervisor, his trainmaster, or his union. The ARB noted that the ALJ found that BNSF applied its policy consistently, and that its rule was not confusing.

Here, Complainant’s second Level S violation had been within five months of the prior violation, and was for a dischargeable offense of operating the train in excess of the speed limit and passing a crossing without sounding the whistle, and BNSF relied on its progressive discipline policy to terminate Complainant’s employment for two Level S disciplines within the applicable time period. This supported the ALJ’s affirmative defense finding.

The ARB noted Complainant’s argument that BNSF’s late-reporting policy is unfair and unreasonable, but indicated that this question was not for it to decide on the FRSA affirmative defense analysis. The ARB wrote:

Our task at the ARB is to ask not whether BNSF’s policy is the most-well thought out policy or rings well in a policy setting. Instead, our task is to determine whether BNSF retaliated against Thorstenson for activity protected under the FRSA. “Courts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it.” We therefore again conclude that BNSF did not violate the FRSA by terminating Thorstenson’s employment.

Id. at 18 (footnote omitted).

Ninth Circuit’s Conclusion that ARB Imposed an Erroneous Proximate Cause Burden of Proof

The ARB next turned to the Ninth Circuit’s finding of error that the ARB had imposed a proximate cause burden of proof. The ARB explained why this was a misunderstanding of its decision. The ARB first noted that the ALJ, following later deprecated precedent, found that found that BNSF violated the FRSA because Complainant’s discipline was “inextricably intertwined” with his protected activity of reporting an injury. The ARB noted that it had explained its finding that the ALJ erred in following the deprecated precedent when it wrote that “the plain language of the FRSA does not include the term ‘inextricably intertwined,’ and the analysis is ‘a construction that substitutes for, and in some cases circumvents, the ALJ’s contributing factor or affirmative defense analyses.’” Id. at 19 (footnote omitted). The ARB quoted the Ninth Circuit’s conclusion that the ARB had imposed a new “proximate cause” burden of proof for causation under the FRSA. The ARB then quoted its earlier decision in Klinger v. BNSF Ry. Co., ARB No. 2019-0013, slip op at 9 n.58, in which it had explained that the Ninth Circuit’s memorandum in Thorstenson had not discussed the ARB’s principal holding regarding the lack of viability of “inextricably intertwined” and “chain-of-events” analyses.

The ARB acknowledged that in it discussion in Thorstenson, it had quoted the Seventh Circuit decision in Koziara to distinguish legal causation from factual causation, and had used the phrase “proximate causation” in that discussion. The ARB explained, however, that the Ninth Circuit had construed the phrase “proximate causation” in a different manner than the ARB intended, and that the ARB had not intended to create an additional standard above and beyond the statutory text of the FRSA. The ARB noted that the statutory text only requires the complainant to prove that protected activity was “a contributing factor in the unfavorable personnel action, ” and noted that it had previously stated that a “contributing factor” includes “any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Slip op. at 21 (footnote omitted).

AFFIRMATIVE DEFENSE; RESPONDENT’S ARGUMENT—THAT ITS SUPERVISOR HAD NOT DEMONSTRATED A MOTIVATION TO RETALIATE AGAINST COMPLAINANT GIVEN THAT YEARS HAD PASSED SINCE COMPLAINANT’S SAFETY COMPLAINT--AND THAT THE ADVERSE ACTION WAS ENTIRELY CONSISTENT WITH THE SUPERVISOR’S REPUTATION FOR AGGRESSIVE BEHAVIOR AND DISLIKE OF BEING QUESTIONED—WAS INSUFFICIENT TO MEET RESPONDENT’S CLEAR AND CONVINCING EVIDENCE STANDARD WHERE SUPERVISOR CLEARLY HAD COMPLAINANT’S EARLIER PROTECTED ACTIVITY ON HIS MIND WHEN TAKING THE ADVERSE ACTION

Respondent argued that it proved by clear and convincing evidence that the supervisor would have cancelled the overtime regardless of whether Complainant had ever engaged in protected activity, citing evidence that the supervisor had not demonstrated any motivation to retaliate against Complainant for several years after the EEOC complaint, and that the 2017 altercation was entirely consistent with his reputation for aggressive behavior and dislike of being questioned.

The ARB found the evidence relevant, but that it was not sufficient to reverse the ALJ’s finding that Respondent did not meet its heightened burden for the affirmative defense. The supervisor had made a comment to Complainant about leaving his name on his next EEOC complaint, which demonstrated that the protected activity was on the supervisor’s mind during the incident.

SAME-ACTION DEFENSE; INEXTRICABLY-INTERTWINED/CHAIN-OF-EVENTS CAUSATION WAS REJECTED IN THORSTENSON; ALJ MUST BE CAREFUL TO EVALUATE CIRCUMSTANTIAL EVIDENCE IN THE CONTEXT OF CONDUCT PROTECTED BY THE FRSA AND NOT AS TO GENERALIZED IMPROPRIETY OF RESPONDENT’S ACTIONS

See the full casenote infra under X. CAUSATION / CONTRIBUTING FACTOR; Chain of Events / Inextricable Intertwinement, of Klinger v. BNSF Railway Co., ARB No. 2019-0013, ALJ No. 2016-FRS-00062 (ARB Mar. 18, 2021), in which the ARB found that the legal errors made by the ALJ in application at the contributory factor element of a FRSA retaliation also required a remand on the "same-action defense element. Specifically, the ALJ appears to have applied an “inextricably- intertwined”/"chain-of-events analysis rejected by the ARB in Thorstenson v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019), rev'd, Thorstenson v. United States Dep’t of Labor, 831 F. App’x 842, 843 (9th Cir. 2020). The Klinger decision explains why the ARB will continue to apply its holding in Thorstenson despite the Ninth Circuit's reversal. In addition, it appeared that the ALJ took into consideration his generalized finding that Respondent's actions had been unfair and heavy handed. The ARB cautioned that Respondent's actions should be evaluated in relation to conduct protected by the FRSA retaliation provision.

CLEAR AND CONVINCING EVIDENCE DEFENSE; SUMMARY JUDGMENT GRANTED WHERE THE RECORD SHOWED THAT PLAINTIFF WAS DISCIPLINED FOR RULES VIOLATIONS RATHER THAN FOR REPORTING AN INJURY

In Hand v. CSX Transp., No. 19-cv-941 (S.D. Ohio Mar. 15, 2021) (2021 U.S. Dist. LEXIS 47416), the court granted Defendant’s motion for partial summary judgment on Plaintiff’s FRSA whistleblower retaliation claim. One of Defendant’s arguments was that Plaintiff was disciplined for rules violations and not for reporting his injury. The court determined that Plaintiff could not prove that his protected activity contributed to Defendant’s decision to discipline him simply because Defendant investigated the incident surrounding the injury after Plaintiff reported his injury. The court noted that the Sixth Circuit in Lemon rejected a chain-of-events causation. The determined that although Plaintiff offered more than just a “chain-of-events” case, “ultimately the evidence does not show that the decision to discipline Hand for rules violations, as opposed to the decision to charge Hand with rules violations, was retaliatory.” Slip op. at 15 (emphasis as in original). The court reviewed the record, and concluded that “as a matter of law that CSXT has proven by clear and convincing evidence that it would have disciplined Hand for violating the Safe Way Rules even if he had not engaged in the protected behavior. Hand’s claim that CSXT violated the FRSA by retaliating against him for reporting an injury must be dismissed.” Id. at 17.

AFFIRMATIVE DEFENSE; CONTENTION THAT PLAINTIFF HAD BEEN INSUBORDINATE, QUARRELSOME AND DISCOURTEOUS; SUMMARY JUDGMENT DENIED WHERE RECORD SHOWED ISSUES OF FACT; FACT THAT DEFENDANT HAD A POLICY ADDRESSING INSUBORDINATION AND HAD FOLLOWED THE PERFORMANCE IMPROVEMENT PLAN PROTOCOL DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT

In Taylor v. Union Pac. R.R. Co., No. 18-1110 (M.D. La. Mar. 12, 2021) (2021 U.S. Dist. LEXIS 47301), the court denied Defendant’s motion for summary judgment on Plaintiff’s FRSA retaliation complaint. One of Defendant’s arguments was that it would have fired Plaintiff regardless of the protected activity based on his insubordinate, quarrelsome, and discourteous conduct. The court, however, noted “that these adjectives are inherently subjective” and “would likely require credibility determinations that are, of course, prohibited at the summary judgment stage.” Slip op. at 21. The court reviewed the record and found questions of fact for the jury.

The court also found that although Defendant demonstrated that it had a policy addressing insubordination, and that it had followed the appropriate procedure by providing Plaintiff with a Performance Improvement Plan, summary judgment was inappropriate because there were genuine issues of material fact regarding Plaintiff’s conduct.

AFFIRMATIVE DEFENSE; CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT’S DECISION MAKERS HONESTLY BELIEVED COMPLAINANT HAD FALSIFIED ANSWERS ON A PRE-EMPLOYMENT MEDICAL QUESTIONNNAIRE (FAILURE TO DISCLOSE PRIOR INJURY AND RELATED LAWSUIT AGAINST HIS PRIOR EMPLOYER), AND THAT RESPONDENT HAD A LEGITIMATE INTEREST IN ITS POLICY TO DISMISS EMPLOYEES FOUND TO BE DISHONEST

In Chambers v. BNSF Railway Co., ARB No. 2019-0074, ALJ No. 2018-FRS-00086 (ARB Mar. 5, 2021) (per curiam), when Complainant applied for employment with Respondent he failed to disclose on a pre-employment medical questionnaire a previous an injury, surgery and related lawsuit against his prior employer. The questionnaire warned that incomplete or false answers may be grounds for withdrawal or termination of employment. A few years after being hired, Complainant reported an injury, and Respondent discovered the potential failure to disclose. After an investigation, Respondent dismissed Complainant for dishonesty on his pre-employment medical questionnaire. Complainant then filed a FRSA complaint alleging that he was fired for reporting the injury. OSHA and the ALJ dismissed the complaint. On appeal, the ARB affirmed the ALJ's finding that Respondent provided by clear and convincing evidence that BNSF decision-makers dismissed Complainant solely because they honestly believed that Complainant falsified his answers on his pre-employment questionnaire. The ALJ’s decision had been based in part on credibility determinations. In addition to the ALJ’s finding that Respondent’s decision makers honestly believed that Complainant provided false answers on the questionnaire, the ALJ found that Respondent had policies prohibiting dishonesty, had a legitimate interest in enforcing those policies, and had consistently dismissed employees found to be dishonest.

AFFIRMATIVE DEFENSE; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDINGS THAT DISCIPLINE WAS BASED ON COMPLAINANT’S BEHAVIOR; THAT RESPONDENT ACTED APPROPRIATELY WITHIN ITS SAFETY AND OPERATING RULES AND ZERO TOLERANCE FOR WORKPLACE RETALIATION; AND THAT RESPONDENT DEMONSTRATED NO RETALIATORY MOTIVE AS TO THE DISCIPLINE

In Brousil v. BNSF Railway Co., ARB Nos. 2020-0053, -0062, ALJ No. 2014-FRS-00163 (ARB Jan. 27, 2021) (per curiam), the ALJ who originally heard the case had found that Respondent established its FRSA affirmative defense, stating that Respondent had probable cause to investigate Complainant’s actions and that Respondent showed leniency in its discipline. The ARB found that the ALJ had not applied the correct legal standard and remanded. On remand, a different ALJ was assigned who dismissed Complainant’s claim, finding that Respondent proved, by clear and convincing evidence, that it would have taken the same adverse action against Complainant absent any of his protected activity. The ARB, applying a substantial evidence standard of review, affirmed, stating:

In deciding this case, the ALJ found that Respondent acted appropriately in accordance with its safety and operating rules and within its “zero tolerance” policy for workplace retaliation. The ALJ found “[a]lthough Complainant was involved in several disciplinary proceedings over a short time period, the disciplinary proceedings were consistent with BNSF safety rules and clearly resulted from Complainant’s conduct over a short time period rather than any motive to harass or intimidate Complainant.” Upon review of BNSF’s safety and operating rules, we find that they support the ALJ’s findings that Respondent’s discipline was based on Complainant’s own behavior throughout the three incidents and would have occurred in the absence of protected activity.

Additionally, the ALJ found that Respondent demonstrated no retaliatory motive in its discipline. The ALJ analyzed factors including whether Respondent’s operating and safety rules were rational, unambiguous, and retaliatory; whether Complainant failed to act in accordance with those rules and instructions from his supervisors; and the import of Complainant’s own admissions, including conceding at his deposition that he departed without an illuminated door indicator light the second time on February 5, 2013. The ALJ also noted that Respondent had given greater discipline and terminated 15 other employees in 2013 for violating the same rules with which Complainant was charged. The ALJ found that the basis and the managerial leniency of the Respondent’s disciplinary decisions were so powerful that it is clear the discipline would have occurred apart from his protected activity, and that “[g]iven the justification for the lenient treatment of Complainant due to his position and tenure with Respondent, I thus find that Respondent has shown by clear and convincing evidence that it would have disciplined Complainant in the same way in the absence of Complainant’s protected activity.” We affirm this conclusion as supported by substantial evidence and in accordance with law.

Accordingly, we find the record supports the ALJ’s factual determination that Respondent proved, by clear and convincing evidence, that it would have taken the same adverse actions against Complainant absent any of his protected activity.

Slip op. at 4-5 (footnotes omitted).

AFFIRMATIVE DEFENSE; CONCURRING OPINION VIEWS SPEEGLE FACTORS AS AN ANALYTICAL AID, AND NOT A SET OF BRIGHT-LINE RULES; ADDRESSES HOW TO ANALYSE VIOLATIONS OF COMPANY POLICY IN REGARD TO AFFIRMATIVE DEFENSE

One member of the ARB filed a concurring opinion to address the employer’s affirmative defense. The concurring member noted the ARB’s decision in Speegle v. Stone & Webster Constr., Inc., ARB No. 2013-0074, ALJ No. 2005-ERA-00006, slip op. at 11-12 (ARB Apr. 25, 2014), which listed factors that should be considered in assessing the “clear and convincing” evidence defense. The concurring member indicated that the Speegle factors should be viewed as assisting a fact-finder and not as a bright-line rule for all cases. The member stated: “A fact-finder may simply apply the statutory and regulatory text without additional nonstatutory and nonregulatory factors. We stated in Clem v. CSC Computer Sci. Corp. that ‘these [Speegle] factors are not expressly prescribed in the statutory text and such a rule was not necessary to resolve the matter at issue . . . . A fact-finder must holistically consider any and all relevant, admissible evidence when determining whether an employer would have taken the same adverse action against an employee in the absence of any protected activity.’” Slip op. at 6. The concurring member also discussed how a complainant’s violations of company policy may be analyzed as an affirmative defense, noting that an reasonable and honest belief of such a violation can satisfy the burden, but that it is not enough to merely show that the conduct violated a company policy or constituted a legitimate business reason for the adverse personnel action.

AFFIRMATIVE DEFENSE; EMPLOYEE COMPARATOR DATA ARE IRRELEVANT WHERE DECISIONMAKERS DID NOT KNOW ABOUT PROTECTED ACTIVITY

The court granted summary judgment on the alternative ground that Plaintiff would have been terminated even if he had not been an advocate for predictive scheduling. The court found nothing in the record to support a finding that decisionmakers “were aware of — let alone relied upon — Jones’s reports regarding fatigue when they made their decisions regarding Jones’s employment.” Id. at 22 (citation omitted). Plaintiff contended that data regarding similarly situated employees were sufficient to defeat summary judgment. The court, however, stated: “where, as here, the decisionmakers were unaware of the employee’s safety reports, comparator data are unnecessary and irrelevant. BNSF does not need to “prove similar or identical issues received [the] same discipline” because it has proven that Jones’s safety reports did not factor into the decisions to discipline Jones.” Id.

AFFIRMATIVE DEFENSE; PLAINTIFF CANNOT DEFEAT SUMMARY JUDGMENT MOTION MERELY BY CHALLENGING MERITS OF DISCIPLINE PROCEEDING OR UNSUPPORTED SPECULATION THAT CHARGES WERE PRETEXT FOR RETALIATION; RECORD SHOWED THAT DECISION MAKERS BELIEVED IN GOOD FAITH THAT COMPLAINANT WAS GUILTY OF THE CONDUCT FOR WHICH HE WAS BEING REPRIMANDED

In Mangold v. Norfolk Southern Ry., No. 20-cv-214 (N.D. Ohio Dec. 14, 2020) (2020 U.S. Dist. LEXIS 234009; 2020 WL 733467), Plaintiff alleged that he was disciplined and terminated in retaliation for engaging in protected activity, in violation of the anti-retaliation provisions of the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20109. The court granted Defendant’s motion for summary judgment on the grounds that (1) Plaintiff failed to demonstrate knowledge of protected activity on the part of the individuals involved in the decisions to discipline and terminate him, (2) Plaintiff failed to demonstrate that his protected activity was a contributing factor in the adverse decisions, and (3) Defendant demonstrated by clear and convincing evidence that it would have made the adverse personnel decisions regardless of Plaintiff’s protected activity. The court stated that there were no material questions of fact as to any of the claims in the complaint.

As to the affirmative defense, the court stated:

Even if Mangold had established a prima facie case of retaliation (which he has not), Norfolk has demonstrated by clear and convincing evidence that it would have disciplined and/or discharged him based on his various rules violations. Much of Mangold’s opposition brief is devoted to challenging the accuracy of the application of the rules to his behavior, highlighting inconsistencies in data relied upon at the hearing with later acquired data, and contesting the decision-makers’ evaluation of the evidence presented at the hearings. But this Court declines review the merits of the discipline because,

“federal courts do not sit as a super-personnel department that re-examines an employer’s disciplinary decisions.” Kuduk, 768 F.3d at 792 (quotation omitted). The critical inquiry in a pretext analysis “is not whether the employee actually engaged in the conduct for which he was terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge. McCullough v. Univ. of Ark. For Med. Scis., 559 F.3d 855, 861–62 (8th Cir. 2009). Moreover, if the discipline was wholly unrelated to the protected activity, whether it was fairly imposed is not relevant to FRSA causal analysis. “An employee who engages in protected activity is not insulated from adverse action for violating workplace rules, and an employer’s belief that the employee committed misconduct is a legitimate, non-discriminatory reason for adverse action.” Richey v. City of Independence, 540 F.3d 779, 784 (8th Cir. 2008).

Gunderson, 850 F.3d at 969–70. See Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012) (endorsing the “honest belief rule” and noting that, to establish pretext, a plaintiff “is required to show ‘more than a dispute over the facts upon which the discharge was based’”) (quoting Braithwaite v. Timken Co., 258 F.3d 488, 493–94 (6th Cir. 2001)). Here, there is nothing in the record that would show that the relevant decision-makers did not believe in good faith that Mangold was guilty of the conduct justifying the letter of reprimand and the subsequent dismissal. In light of the undisputed record evidence that Mangold’s discipline—which was unrelated to his protected activity, administered in accordance with START procedures and the governing collective bargaining agreement after a hearing where he was represented and given a full opportunity to present his case, and imposed by decision-makers unaware of his protected activity—was issued in good faith, Mangold’s unsupported speculations as to retaliation fail to show pretext. See, e.g., Heim, 2015 WL 5775599, at *5 (“In the absence of evidence suggesting that retaliation for reporting an injury was a contributing factor to his discipline, Heim is not entitled to relief, even if BNSF’s disciplinary decision was inaccurate.”). Accordingly, Norfolk is entitled to summary judgment on Mangold’s FRSA claim for this additional reason.

AFFIRMATIVE DEFENSE ESTABLISHED ON SUMMARY JUDGMENT; PLAINTIFF’S PROTECTED ACTIVITY WAS AN ATTEMPT TO ENFORCE A PROVISION OF AN EARLIER FRSA SETTLEMENT AGREEMENT THAT DIRECTED REMOVAL OF REPRIMAND LETTER; PLAINTIFF PRESENTED NO EVIDENCE TO SHOW THAT DECISIONMAKER ON CURRENT 50-DAY SUSPENSION LOOKED UNFAVORABLY ON THE ATTEMPT TO ENFORCE REMOVAL OF THE LETTER

In Johnson v. Grand Trunk Western Ry., No. 18-13582 (E.D. Mich. Apr. 15, 2020) (2020 U.S. Dist. LEXIS 65947; 2020 WL 1873325), Plaintiff and Defendant had resolved a 2013 FRSA complaint with a settlement agreement, a term of which required removal of a letter of reprimand for reporting a workplace injury from Plaintiff’s personnel file. In 2015, Defendant suspended Plaintiff for 50-days for violating an attendance rule (Defendant concluding that Plaintiff was marking off from calls in order to avoid work). During the investigation leading to this suspension, Plaintiff discovered that the 2013 letter of reprimand had not been removed from his file. The instant complaint alleged that Defendant violated the FRSA by relying on this letter in imposing the 50 day suspension. The district court granted Defendant’s motion for summary judgment.

The court analyzed the summary judgment motion under Plaintiff’s theory that his settlement agreement continues to protect his complaint by ordering Defendant to remove the reprimand letter from the personnel file, and thus Plaintiff’s enforcement of the agreement is also protected under the FRSA. Defendant argued that the failure to remove the letter was enforceable by a contract claim rather than a FRSA retaliation claim.

For purposes of analyzing the summary judgment motion, the court assumed that the decisionmaker on the 50 day suspension (Plaintiff’s supervisor) was aware of the reprimand letter because during the hearing Plaintiff attempted to have the letter removed, and although the decisionmaker did not attend the hearing, he should have known this from reviewing the hearing transcript. The decisionmaker, however, testified that the sole reason Plaintiff was given a 50-day suspension was because Plaintiff had an intervening 30-day suspension in 2014 for violating a mandatory directive to slow down, and the decisionmaker’s unwritten guide was to impose progressive discipline. The decisionmaker also stated that the letter of reprimand was too insignificant and low level to consider. The court was not persuaded by Plaintiff’s contention that he would not have received the 30-day suspension without the letter of reprimand, as the evidence showed that a 30-day suspension was the minimum for violating a slow-down directive.

Although there was evidence that the decisionmaker was skeptical of Plaintiff’s regular mark offs right before being called, the court found that these suspicions went to Plaintiff’s credibility and not his protected activity. The court also noted that it was not the decisionmaker who decided to investigate Plaintiff’s regular mark offs, and that Plaintiff’s admitted that the claim that the reprimand letter played a role was just a feeling rather than based on any facts. Finally, the court noted that the letter of reprimand was not itself the protected activity. Rather, the protected activity was Plaintiff’s attempts to have it removed from the personnel file. There was no evidence presented to show that the decisionmaker looked unfavorably toward these efforts. The court thus found that Defendant had established that Plaintiff would have been given the same punishment absent the letter of reprimand and Plaintiff’s protected activity.

CONTRIBUTORY FACTOR CAUSATION AND AFFIRMATIVE DEFENSE; ARB NO LONGER APPLIES “INEXTRICABLY INTERTWINED” AND “CHAIN OF EVENTS” CAUSATION ANALYSIS

See casenote above in Section X. CAUSATION / CONTRIBUTING FACTOR - Chain of Events / Inextricable Intertwinement, on Yowell v. Fort Worth & Western R.R., ARB No. 2019-0039, ALJ No. 2018-FRS-00009 (ARB Feb. 5, 2020) (per curiam). In that case, the ALJ had relied on since rejected precedent on inextricable intertwinment and chain of events casuation to find that Respondent did not meet its affirmative defense. The ARB reversed and dismissed the complaint based on the ALJ's finding that Respondent fired Complainant for violation of its policy on timely reporting of injuries.

AFFIRMATIVE DEFENSE; CLEAR AND CONVINCING EVIDENCE ESTABLISHED THAT BNSF DISCIPLINED COMPLAINANT SOLELY BECAUSE HIS INJURY REPORT WAS LATE, AND NOT BECAUSE HE FILED AN INJURY REPORT; ARB AFFIRMS ALJ’S REJECTION OF COMPLAINANT’S CONTENTION THAT ENFORCEMENT OF BNSF’S TIMELY REPORTING POLICY IS UNREASONABLE AND UNDULY BURDENSOME

In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), the ALJ determined that Respondent established by clear and convincing evidence that it disciplined Complainant in January 2011 because his report of injury on November 22, 2010, was late, not because he reported an injury. The ALJ had found overwhelming evidence that Defendant does not impose discipline when a report is timely and imposes discipline when the report is not timely. Moreover, the ALJ noted that in the instant case, Complainant himself had filed seven injury reports but was not disciplined, except for the instance when the report was late. Also, Defendant presented evidence of 17 other workers who were not disciplined for filing injury reports in 2011, and seven Public Law Board decisions that upheld Defendant’s decisions to discipline employees for late reporting of an injury. The ALJ gave some weight to the Public Law Board’s decision. The ALJ found no evidence of pretext or personal animus.

The ARB affirmed the ALJ’s rejection of Complainant’s argument that Defendant’s enforcement of its timely reporting policy is unreasonable and unduly burdensome. The ARB noted:

The ALJ found that so long as a rule is lawful, an employer is entitled to its disciplinary rules even if the rules are unwise, counterproductive, or arbitrary. “’Courts do not sit as a super-personnel department that re-examines an employer’s disciplinary decisions.” See Kuduk, 768 F.3d at 792. The ALJ noted that “[w]hen a worker reports an injury, the railroad is in a position to investigate to determine whether there are unsafe conditions that must be corrected for the protection of the public and of rail workers. Without notice of an injury, a railroad cannot take these steps.” D. & O. at 23.

Slip op. at 12. The ARB found that the ALJ’s findings were supported by substantial evidence, and affirmed the ALJ’s “finding that Respondent established by clear and convincing evidence that it would have disciplined Complainant with a Level S violation for the sole reason that his report was late, not because he reported an injury.” Id.

AFFIRMATIVE DEFENSE; CLEAR AND CONVINCING EVIDENCE ESTABLISHED THAT BNSF WOULD HAVE DISCHARGED COMPLAINANT UNDER ITS PROGRESSIVE DISCIPLINE POLICY EVEN IN THE ABSENCE OF PROTECTED ACTIVITY

In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), Defendant imposed a “Level S” (i.e., serious) violation on Complainant and a coworker for a safety incident involving serious charges, including failure to sound the whistle when passing through a crossing. The ALJ found it undisputed that the incident would have resulted in a Level S violation in the absence of protected activity. Complainant was already under a 36-month review for a prior Level S violation (untimely reporting of an injury), and the ALJ found that part of BNSF’s progressive discipline policy was to terminate an employee for receiving a second Level S violation within the review period. The ARB found that substantial evidence supported the ALJ’s findings. The ARB had earlier in its decision affirmed the ALJ’s conclusion that Defendant showed by clear and convincing evidence that it would have disciplined Complainant with a Level S violation for the untimely reporting of an injury. The ARB affirmed the ALJ’s finding that Defendant would have imposed a second Level S discipline, and that Defendant would have terminated Complainant’s employment following his second Level S violation, even absent the protected injury report or his filing a claim with OSHA.

AFFIRMATIVE DEFENSE; DEFENDANT FAILED TO ESTABLISH AFFIRMATIVE DEFENSE FOR ITS LENGTHENING OF PERIOD COMPLAINANT WAS UNDER REVIEW FOR A PRIOR POLICY VIOLATION; HOWEVER, BECAUSE COMPLAINANT’S SECOND VIOLATION WAS STILL WITHIN REGULAR 12-MONTH REVIEW PERIOD, NO DAMAGES RESULTED

ALJ LACKS AUTHORITY TO ORDER DEFENDANT TO “CEASE AND DESIST” FROM POLICY THAT LENGTHENED PERIOD AN EMPLOYEE WAS UNDER REVIEW FOR A SERIOUS VIOLATION WHERE THE REASON FOR LENGTHENING WAS A PRIOR INJURY REPORT

In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019) (en banc) (per curiam), at the time in question, Defendant’s policy was to impose a 12-month review period following a “Level S” (i.e., serious) violation for “injury free” and “discipline free” employees. In the instant case, Defendant’s General Manager imposed a 36-month review period on Complainant following a “Level S” violation for untimely reporting of an injury. The 36-month period was imposed because Complainant had filed an injury report within the prior five years. The ALJ found that imposition of the 36-month review period based on a prior injury report did not meet Defendant’s burden on an affirmative defense. The ALJ also found, however, that Complainant had not established damages on the lengthened review period because he had a second Level-S violation within the 12-month review period, and—under Defendant’s progressive discipline policy—Complainant would have been discharged regardless of the lengthening. The ARB affirmed the ALJ’s finding. Although the ALJ noted that Defendant had since discontinued the practice, the ALJ ordered that BNSF cease and desist from imposing the 36-month review period for solely because the employee receiving discipline had reported an injury prior to receiving that discipline. Defendant argued on appeal that the cease and desist order was beyond the ALJ’s powers. The ARB agreed and vacated the ALJ’s order, finding that it was ultra vires.

AFFFIRMATIVE DEFENSE; ROBUST PROCEDURES EMPLOYER TOOK TO ASCERTAIN FACTS AND ARRIVE AT ITS DECISION TO TERMINATE COMPLAINANT’S EMPLOYMENT, TOGETHER WITH HISTORY OF COMPLIANCE, SHOWED THAT EMPLOYER FIRED COMPLAINANT BECAUSE IT BELIEVED HE COMMITTED A FIRING-LEVEL OFFENSE

In Epple v. BNSF Ry. Co., No. 18-10509 (5th Cir. Sept. 27, 2019) (per curiam) (unpublished) (2019 U.S. App. LEXIS 29232), the court declined to opine on whether the FRSA’s reference to AIR21 § 42121 eliminates a plaintiff’s obligation to establish a discriminatory or retaliatory motive, and instead found that the record developed at trial established by clear and convincing evidence that the railroad would have dismissed the complainant regardless of the injury report that he filed. Specifically, the court relied on procedures and safeguards used in BNSF’s disciplinary process:

The record shows that BNSF terminated Epple’s employment only after it subjected the alleged charges to a thorough, multi-stage investigation. The investigation had robust safeguards built in and gave Epple plenty of opportunity to challenge the evidence against him as well as introduce information and context that could help vindicate the decisions he made leading to his injury. For example, the company assigned supervisors to interview Epple within hours of the accident and to examine the location where Epple fell. Then, after the supervisors concluded that a possible rule violation took place, the company called for a formal hearing. The proceedings were conducted “by the book.” And Epple offers no evidence that any of the participants at the hearing treated it frivolously or in a pretextual manner.

Three different BNSF officials reviewed the investigation’s findings, including Hurlburt, the Director of Labor Relations, who was outside of the department’s chain of command and, therefore, could act as neutral party. Moreover, the discharge decision fully complied with company policy. Epple’s failure to take the safe course and to comply with his supervisor’s instructions both constitute serious infractions. And the company’s PEPA policy provides that an employee is subject to dismissal if he commits two serious offenses within a 36-month review period.

Slip op. at 5-6. The court noted that this process closely resembled the process that the Eighth Circuit upheld as clear and convincing evidence in Kuduk v. BNSF Ry. Co., 768 F.3d 786, 792 (8th Cir. 2014). The court stated that although the Eighth Circuit had not offered much explanation:

… it is easy to see why the court gave these procedures so much weight. The proceedings themselves cost time, money, and resources. A company signals its concern when it is willing to expend these resources to uncover the truth about an employee’s conduct. The procedures also have the added benefit of diluting the influence of any individual with an improper motive. The more layers of review and the more personnel involved makes it less likely for bad actors to steer the process toward an outcome the company would not have otherwise chosen. The company essentially limits the possibility that it pursued disciplinary measures for any reason other than the employee’s wrongful conduct.

Id. at 6-7. The court also pointed to evidence that the complainant had “reported workplace injuries on more than a dozen occasions yet was never disciplined or treated unfavorably as a result” and that “[o]ut of 37 employees in the Texas Division who reported injuries in 2010, only two received any form of discipline within three months of their injury.” Id. at 7. The court concluded:

A history of compliance does not preclude the possibility of discriminatory conduct by BNSF, but it does imply that the circumstances surrounding Epple’s injury set this incident apart. Combining this with the robust procedures that BNSF took to ascertain the facts and arrive at its decision, the evidence firmly shows that BNSF believed Epple committed a firing-level offense. In short, it was Epple’s perceived conduct—not his protected activity—that led to the disciplinary measures being taken against him. The company therefore qualifies for the affirmative defense provided in § 42121(b)(2)(B)(iv).

Id.

The second sentence of Instruction 17, however, is an incorrect statement of the law in the context of the contributing-factor standard. The second sentence states, “BNSF Railway cannot be held liable under the FRSA if you conclude that BNSF Railway disciplined Plaintiff based on its honestly held belief that Plaintiff engaged in misconduct or committed a rules violation.” As made clear in the first panel opinion, a retaliatory motive gives rise to FRSA liability if retaliation was a “contributing factor” in the discipline decision. Blackorby I, 849 F.3d at 721–22. Contrary to the plain language of Instruction 17’s second sentence, an employer can, in fact, be held liable under the FRSA if it disciplines an employee based on its honestly held belief that the employee engaged in misconduct or committed a rules violation. Liability will still exist notwithstanding such a belief if the employer’s retaliatory motive also played a contributing role in the decision and if the employer fails to carry the burden of proving by clear and convincing evidence that it would have taken the same action in the absence of the protected report. As Blackorby succinctly notes in his opening brief, “A finding that an employer maintained an honest belief that an employee engaged in misconduct or violated a rule is not mutually exclusive with a finding of retaliatory intent.” In fact, two causes being non-mutually exclusive is the very essence and definition of a “contributing” factor.

CLEAR AND CONVINCING EVIDENCE THAT DEFENDANT SUSPENDED PLAINTIFF FOR SAFETY RULE AND WORKPLACE VIOLENCE POLICY VIOLATIONS; FACT THAT PLAINTIFF BELIEVED DISCIPLINE WAS UNFAIR NOT RELEVANT; RECORD DID NOT SHOW THAT DEFENDANT DID NOT BELIEVE IN GOOD FAITH THAT PLAINTIFF WAS GUILTY OF THE RULES AND POLICY VIOLATIONS

In Ryan v. CSX Transp., Inc., No. 17-cv-353 (S.D. Ohio July 19, 2019) (2019 U.S. Dist. LEXIS 120739; 2019 WL 3254129), Plaintiff claimed that his protected activity—reporting the personal injury and being off work for sixteen months for treatment—was a contributing factor to his termination. The court noted that although contributing factor is a lenient causation standard, the plaintiff must prove is intentional retaliation prompted by the employee engaging in protected activity, citing inter alia, Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014). The court noted that the Plaintiff reported the injury the same day he was injured, and was terminated almost a year later, after he had been back on the job for two months. The court found that Plaintiff could not establish an inference of retaliation based on the timing of the protected activity and his termination. The court indicated that conversations Plaintiff had with co-workers shortly before he returned to work suggesting that Respondent would be coming after Plaintiff and he needed to be careful, noting that personal injuries adversely impact their bonuses, and suggesting that Plaintiff transfer to another division were not persuasive, and there was no evidence in the record that a bonus calculation for one of the railroad officials was altered because of Plaintiff’s knee injury. Plaintiff contended that he was treated differently and targeted after returning to work, but the court was persuaded by Defendant’s evidence indicates little difference in testing of Plaintiff for compliance with operating rules, and noted that there was no evidence that Plaintiff was tested more frequently than other employees. Plaintiff noted a couple of sarcastic comments from officials, but the court was not persuaded that such isolated comments were not circumstantial evidence of an improper motive, and may have had been intended to prevent another injury. The court further found that Defendant showed by clear and convincing evidence that would have suspended Plaintiff based on safety rules violations and the violation of the Violence in the Workplace Policy, finding that the record did not show that Defendant did not believe in good faith that Plaintiff was guilty of such conduct, and that the conduct was factually unrelated to the reporting of a knee injury or the time Plaintiff was off work for that injury. The court stated that the fact that Plaintiff believed the discipline was unfairly imposed was not relevant to the causal analysis. The court thus granted summary judgment in favor of the Defendant on the FRSA retaliation count of the complaint.

PROTECTED ACTIVITY; GOOD FAITH INJURY REPORT

BNSF employees cannot immunize themselves against wrongdoing by disclosing it in a protected-activity report. 816 F.3d at 639. See also McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995) (“Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, [the court] cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit.”).

Slip op. at 13 n. 9.

AFFIRMATIVE DEFENSE; INTERFERENCE WITH MEDICAL TREATMENT; INVESTIGATION LEADING EMPLOYER TO CONCLUDE THAT COMPLAINANT WAS USING COMPANY TIME FOR PERSONAL BUSINESS; FINDING THAT PROXIMATE CAUSE OF CENSURE OF COMPLAINANT WAS NOT BASED ON TREATMENT PLAN BUT COMPLAINANT’S FAILURE TO ATTEND MEDICAL APPOINTMENT AND ABUSE OF COMPANY TIME

AFFIRMATIVE DEFENSE; EVIDENCE OF HOW OTHER EMPLOYEES WERE DISCIPLINED WAS NOT CONCLUSIVE BUT WAS SUPPORTIVE OF TESTIMONIAL EVIDENCE

The ALJ reasoned that co-workers’ frustrations were not due to Wevers’s work-related injury or treatment plan but rather it was the fact that his work was not being completed and work time was being wasted. . . . The co-workers’ bias and hostility generated the complaint, which in turn triggered an independent investigation. This investigation revealed a violation of company policy independent of Wevers’s protected activity. The proximate cause of the April censure letter was Wevers’s failing to attend the medical appointment; the proximate cause of the October censure was Wevers’s abusing company time during a performance review.

AFFIRMATIVE DEFENSE; COMPARATIVE EVIDENCE OF TREATMENT OF OTHER EMPLOYEES CHARGED WITH DISHONESTY FOUND INSUFFICIENT WHERE IT WAS BASED ON UNSPECIFIED REVIEWS AND A DIFFERENT VARIETY OF DISHONESTY (INTENT TO DECEIVE v. MERELY BEING WRONG); ALTHOUGH MANAGERS PERCEIVED COMPLAINANT’S LATE INJURY REPORT TO BE IN RETALIATION FOR DISCIPLINE, ARB AFFIRMED ALJ’S DETERMINATION THAT INJURY REPORT WAS DRIVING FORCE FOR COMPLAINANT’S TERMINATION; ARB NOTES THAT BUT-FOR THE INJURY REPORT RESPONDENT’S REASONS FOR FIRING COMPLAINANT WOULD NOT HAVE EXISTED

In Brough v. BNSF Railway Co., ARB No. 2016-0089, ALJ No. 2014-FRS-00103 (ARB June 12, 2019), the ARB affirmed the ALJ’s decision finding that the Respondent violated the FRSA when it fired Complainant for reporting a work injury. On appeal, Respondent challenged the ALJ’s determination that it had failed to establish by clear and convincing evidence that absent the protected activity it would have taken the same adverse action. Specifically, Respondent argued “that the ALJ erred in failing to accept its affirmative defense based on its comparative evidence that the ‘vast majority’ of its employees who reported injuries were not disciplined and that other employees had been disciplined for conduct similar to Brough’s.” Slip op. at 11-12. The ALJ had found the comparative evidence insufficient, finding that Respondent’s witness — a manager who claimed to have reviewed other similar cases involving employee dishonesty — had presented only generalized reflections based on unspecified cases; the type of “dishonesty” involved was of a different nature (intent to deceived v. merely being wrong about the characterization of one’s condition); and the dishonesty charge had not been substantiated and was not crucial to the decision to fire Complainant. While Respondent’s managers’ perception was that Complainant reported the injury in retaliation for Respondent imposing discipline on him for the accident in which Complainant was injury, the ALJ had found that the reaction of the managers demonstrated that the protected activity was the driving force for the discipline. The ARB also pointed out that without the protected activity — Complainant’s injury report at the time of Respondent demanded that Complainant sign a disciplinary report — Respondent would not have known about Complainant’s chiropractic visits, his medical treatment and the late injury reporting — “and consequently BNSF’s stated reasons to fire him would not have existed.” Id. at 12.

XII. 20109(c)(1) CASES: PROHIBITION OF INTERFERENCE WITH TREATMENT

INTERFERENCE WITH MEDICAL TREATMENT; SUBSECTION 20109(c)(1) IS NOT A TYPICAL “WHISTLEBLOWER” PROVISION, BUT RATHER A DIRECT PROHIBITION OF CERTAIN CONDUCT; REQUEST FOR MEDICAL TREATMENT IS THE PROTECTED ACTIVITY ; DENIAL, DELY OR INTERFERENCE WITH MEDICAL TREAMENT IS THE ADVERSE ACTION; CONTRIBUTORY FACTOR CAUSATION AND AFFIRMATIVE DEFENSE BURDENS APPLY

In Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam), Complainant alleged that Respondent interfered with his medical treatment in violation of 42 U.S.C. § 20109(c)(1). The ARB noted that the ALJ had observed that subsection (c)(1) “is not a typical whistleblower protection provision but is instead a direct prohibition of certain conduct.” Slip op. at 15. Further, “[l]ikening subsection (c)(1) to an anti-retaliation provision, the ALJ reasoned that a request for medical treatment would constitute the protected activity under this subsection and the employer’s adverse action would be the denial, delay, or interference with medical treatment. Extending this analysis, the ALJ concluded that subsections 20109(c) and (d) would implicitly incorporate the typical requirement of contributing factor causation and thereby provide the employer with an affirmative defense that its action is not a prohibited interference or denial of treatment but a reasonable course of action.” Id. (footnote omitted).

INTERFERENCE WITH MEDICAL TREATMENT; OVERTURNING ITS INTERPRETATION IN SANTIAGO, THE ARB HELD THAT THE EMPLOYEE PROTECTIONS PROVIDED AT 42 U.S.C. § 20109(c)(1) ARE LIMITED TO THE TEMPORAL PERIOD IMMEDIATELY FOLLOWING A WORKPLACE INJURY

In Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam), Complainant alleged that Respondent interfered with his medical treatment in violation of 42 U.S.C. § 20109(c)(1). Both parties cited to and relied upon the ARB’s decision in Santiago v. Metro-North Commuter R.R. Co., Inc., ARB No. 10-147, ALJ No. 2009-FRS-11 (ARB July 25, 2012), in which the ARB ruled that “subsection 20109(c)(1) bars a railroad from denying, delaying, or interfering with an employee’s medical treatment throughout the period of treatment and recovery from a work injury.” In Metro-North Commuter R.R. Co. v. U.S. Dep’t of Labor, 886 F.3d 97 (2d Cir. 2018) the Second Circuit vacated the ARB’s Santiago opinion based on a finding that the ALJ’s decision was supported by substantial evidence under DOL’s interpretation of subsection (c)(1). The court, however, found several problems with the ARB’s approach to subsection (c)(1), and suggested that DOL reconsider its interpretation. Thus, in the instant case the ARB reexamined the question, and found that “the text of subsection (c)(1) as a whole indicates that it was intended to be limited to first aid treatment immediately following a workplace injury” and that “[t]he language of subsections (c)(1) and (c)(2), when considered together, also supports the conclusion that subsection (c)(1) is limited to the period of time immediately following a workplace injury.” Slip op. at 18. The ARB held:

Accordingly, we will no longer adhere to the interpretation of subsection (c)(1) that the Board had previously set forth in Santiago. Instead, we hold that subsection 20109(c)(1) prohibits an employer from denying, delaying, or interfering with medical treatment or first aid only in the temporal period immediately following a workplace injury. Subsection 20109(c)(1)’s provision for prompt “medical or first aid treatment” does not create a statutory right to ongoing or unlimited medical treatment of choice over the entire course of a treatment plan or recovery period for a workplace injury. As Wevers does not complain of his medical or first aid treatment immediately following his workplace injuries, the only question that remains before us is whether MRL disciplined or threatened to discipline Wevers for following the treatment plan of a treating physician.

Id. at 19 (footnotes omitted). In a footnote the ARB stated: “The determination as to what constitutes an appropriately limited temporal period will necessarily be fact-driven and so we decline to set forth any specific temporal limits or boundaries.” Id. at n.9.

XIII. DAMAGES AND OTHER REMEDIES

Reinstatement

REINSTATEMENT IS REQUIRED BY THE FRSA RETALIATION PROTECTION PROVISION; HOWEVER, WHERE REINSTATEMENT WOULD NOT BE POSSIBLE, DISTRICT COURT HAS THE DISCRETION TO AWARD FRONT PAY “TO MAKE THE EMPLOYEE WHOLE”; WHETHER PLAINTIFF REQUESTED OR DID NOT CHALLENGE AN AWARD OF FRONT PAY IS A FACTOR TO CONSIDER

In Monohon v. BNSF Railway Co., No. 18-3346 (8th Cir. Nov. 4, 2021) (2021 U.S. App. LEXIS 32840; 2021 WL 5114271), the jury in the district court proceeding had found in favor of Monohon on his FRSA retaliation claim. Although the district court later found that Monohon’s claim of reporting hazardous safety condition was not objectively reasonable and was not supported by the facts of the case, and granted judgment as a matter of law in favor of BNSF, the Eighth Circuit found that objective reasonableness is not an element of the FRSA, 49 U.S.C. § 20109(b)(1)(A), “reporting” case, and remanded for reinstatement of the jury verdict and other relief.

As to other relief, Monohon had argued before the Eighth Circuit that the district court erred in awarding front pay because the FRSA mandates reinstatement. The court said that although it normally employs an abuse of discretion standard when reviewing a district court’s decision to order front pay, the FRSA unambiguously requires reinstatement. 49 U.S.C. § 20109(e)(2)(A).

The court, however, agreed with BNSF’s argument that the requirement is not absolute. Where reinstatement would not be possible, the FRSA “gives the district court discretion to award whatever relief is ‘necessary to make the employee whole.’” Slip op. at 17, quoting 49 U.S.C. § 20109(e)(1). The court, however, noted that unlike the instant case, in the cases cited by BNSF, the plaintiff requested or did not challenge the award of front pay. The court instructed the district court on remand to reconsider Monohon’s request for reinstatement.

Expungement / Sealing Records

AFFIRMATIVE RELIEF; AN ALJ MAY ORDER A COUNSELING LETTER TO BE SEALED IN A COMPLAINANT’S PERSONNEL RECORD IF THE LETTER WAS RETALIATORY UNDER THE FRSA; HOWEVER, WHERE THE ALJ FOUND THAT THE LETTER WAS NOT RETALIATORY, THE ARB REVERSED AN ALJ’S ORDER TO SEAL THE LETTER

In Burt v. National Railroad Passenger Corp. (Amtrak), ARB No. 2020-0042, ALJ No. 2018-FRS-00015 (ARB Apr. 29, 2021) (per curiam), the ARB affirmed the ALJ’s determination that Respondent violated the FRSA when a supervisor cancelled overtime after an altercation with Complainant and a co-worker. The overtime cancellation had undermined Complainant’s authority as a union representative. The ALJ found that Complainant’s earlier FRSA protected activity was a contributing factor in the adverse action. Complainant was later presented with a counseling letter for failure to perform train inspections in a timely manner, which Complainant believed to be part of a plan to fire him. As part of requested relief, Complainant asked the ALJ to order expungement of the counseling letter from Respondent’s records. The ALJ noted that in Leiva v. Union Pacific R.R. Co., ARB No. 2018-0051, ALJ No. 2017-FRS-00036 (ARB May 17, 2019), the ARB held that expungement is not a realistic remedy because employers are charged with maintaining records, but also held that placing the file in a restricted folder not to be used in future personnel files is acceptable. The ALJ thus ordered Respondent to restrict access to the file and prohibited it from using the file in future personnel actions.

On appeal, the ARB reversed because the ALJ had found that the counseling letter had not violated the FRSA whistleblower provision. The ARB stated that the order to seal the letter did not put Complainant in the position he would have been in if the supervisor had not retaliated against him.

AUTHORITY OF ALJ TO ORDER EXPUNGEMENT OF RECORD; ARB AFFIRMS ALJ’S ORDER, BUT NOTES PROCESS FOR DOING SO MUST ACCOMMODATE OTHER LEGAL REQUIREMENTS THAT PREVENT BUSINESS FROM DESTROYING RECORDS

In Brough v. BNSF Railway Co., ARB No. 2016-0089, ALJ No. 2014-FRS-00103 (ARB June 12, 2019), the ARB affirmed the ALJ’s decision finding that Respondent violated the FRSA when it fired Complainant for reporting a work injury. The ALJ directed expungement of the record on Complainant’s discharge. On appeal, Respondent argued that the FRSA’s “make whole” relief language refers to economic damages, and that the regulations cannot confer jurisdiction on the ALJ to order affirmative action that the FRSA does not mandate. The ARB affirmed the ALJ’s expungement order, but modified it to reflect an employer’s legal obligations to maintain company or corporate records. The ARB wrote:

We note, however, that it may be futile to order an employer to “expunge” information which other laws may require the employer to maintain. Because businesses may not be able to legally destroy company or corporate records, ALJs should be cautious and specific when ordering an employer to “expunge” information from an employee’s personnel record. Where an ALJ finds it necessary to order an employer to disregard certain information which had been placed in an employee’s personnel record, it would be more realistic, for example, for the ALJ to require that the information be placed in a sealed and/or restricted subfolder or that the employer be specifically prohibited from relying on the information in future personnel actions or referencing it to prospective employers. Thus, we affirm the ALJ’s order that BNSF expunge any employment records referencing Brough’s discipline issued on May 25, 2011, but modify her order to require that the information be placed in a sealed and/or restricted access subfolder and that the employer be specifically prohibited from relying on the information in future personnel actions or referencing it to prospective employers.

Slip op. at 18 (footnote omitted).

Back Pay

BACK WAGES; ALJ DID NOT ERR IN INCLUDING AN 18.6% RETROACTIVE INCREASE BASED ON A UNION OFFICIAL’S TESTIMONY WHERE RESPONDENT PRESENTED NO REBUTTAL

Respondent argued on appeal that the ALJ erred by imposing an 18.6% increase to Complainant’s lost wages; Respondent contended that the ALJ did not have the jurisdiction to interpret the collective bargaining agreement. The ARB, however, determined that the only evidence in the record concerning Complainant’s back pay determination was “the union official’s testimony, which stated that a new labor wage agreement was passed between Respondent and Complainant’s union, that it was ratified and retroactive to 2010, and that it called for an 18.6% pay increase for all employees.” Slip at 7 (footnote omitted). The ARB noted that “Respondent provided no rebuttal witnesses or documents to dispute the annual percentage wage increase.” Id.

CALCULATION OF BACK PAY, FRONT PAY AND PREJUDGMENT INTEREST; DISTRICT COURT EXERCISED DISCRETION TO OBTAIN EXPERT MODELS FROM PARTIES AND MODIFY THE AMOUNTS TO BE AWARDED CONSISTENT WITH THE COURT’S PRIOR RULINGS WHERE BOTH PARTIES’ HAD FAILED TO SO

In Fresquez v. BNSF Ry. Co., No. 17-cv-0844 (D. Colo. Dec. 17, 2019) (2019 U.S. Dist. LEXIS 216402), a FRSA retaliation case, the court had resolved certain disputes between the parties regarding calculation of back pay and front pay and directed supplemental briefs on the dollar amount to be awarded consistent with the court’s rulings. In that supplemental briefing, however, neither party’s experts calculated the back and front pay consistent with the court’s order. Frustrated by this additional complication to an already complicated matter, and seeking to end the protracted litigation, the court obtained the expert models from the parties, and exercised its discretion to modify the numbers to be consistent with the court’s prior rulings. Recognizing that each model made numerous assumptions and adjustments, the court found that Plaintiff’s model was inadequate for calculation of prejudgment interest, and thus used the BNSF model adjusted to arrive an amount that fairly represented the amount of back pay, front pay and prejudgment interest to which Plaintiff was entitled.

MITIGATION OF DAMAGES; COURT NOT PERSUADED BY EXPERT’S CONTENTION THAT PLAINTIFF SHOULD HAVE APPLIED FOR FIVE JOBS A DAY – THE STANDARD FOR MITIGATION NOT BEEING THE HIGHEST STANDARD OF DILIGENCE BUT RATHER A GOOD FAITH EFFORT

MITIGATION OF DAMAGES; BURDEN WAS NOT ON PLAINTIFF TO ESTABLISH WHY HE FOCUSED ON FINDING JOBS IN CONSTRUCTION INDUSTRY RATHER THAN RAILROAD FIELD, IT BEING CREDIBLE THAT PLAINTIFF DID NOT HAVE REASONABLE PROSPECTS WITH RAILROADS AFTER BEING DISCHARGED FOR INSUBORDINATION

In Fresquez v. BNSF Ry. Co., No. 17-cv-0844 (D. Col. Nov. 4, 2019) (2019 U.S. Dist. LEXIS 190873), a jury found in favor of Plaintiff on his FRSA whistleblower complaint. The trial judge had found that the questions of back pay and front pay are equitable remedies to be decided by a judge. The trial judge passed away before these questions were decided and a second judge conducted a hearing on these remedies. Defendant argued that Plaintiff did not make reasonable efforts to mitigate and presented expert testimony to bolster its claim. The court was not persuaded, noting that the expert had opined that Plaintiff should have applied to five jobs per day. The court noted that the expert’s report did not indicate that there were that many openings available during Plaintiff’s period of unemployment; that the report was limited to market research after Plaintiff obtained full-time employment; and that Plaintiff “was not required to use the highest standard of diligence, such as applying to five jobs a day, but rather required to make a good faith effort.” Slip op. at 20. The court noted Plaintiff’s post-termination efforts to find employment and found that Defendant failed to carry its burden to show failure to mitigate.

Plaintiff, who had been a track inspector with Defendant, had found employment in the building inspector field. Defendant argued that Plaintiff had “not shown that he has mitigated damages by finding the ’best available alternative employment’ because he has not shown that he applied to other railroads who would not hire him.” Id. at 21. The court found that this argument improperly inverted the burden of proof on mitigation. The court noted Plaintiff’s testimony that he applied for a position with a different railroad after his discharge from Defendant, but that he quickly received a rejection letter. The court also noted Plaintiff’s argument that “as a practical matter given the employment realities of the railroad industry, his dismissal from BNSF will prevent him from ever again working for another railroad.” The court found that Defendant had “not presented any credible evidence that another railroad will hire a candidate discharged from a class 1 railroad for insubordination (even if wrongfully terminated), and therefore has not shown that Fresquez could mitigate his damages by seeking employment in the railroad industry.” Id.

AUTHORITY OF COURT TO AWARD SPECIFIC AMOUNT OF BACK PAY OR FRONT PAY; COURT REJECTS ARGUMENT THAT RAILWAY LABOR ACT ONLY PERMITS A COURT TO SET LENGTH OF TIME FOR AWARD

In Fresquez v. BNSF Ry. Co., No. 17-cv-0844 (D. Col. Nov. 4, 2019) (2019 U.S. Dist. LEXIS 190873), a jury found in favor of Plaintiff on his FRSA whistleblower complaint. The trial judge had found that the questions of back pay and front pay are equitable remedies to be decided by a judge. The trial judge passed away before these questions were decided and a second judge conducted a hearing on these remedies. Defendant argued the Court lacked jurisdiction “to award a specific amount of back pay or front pay (as opposed to setting a length of time) because the Railway Labor Act (“RLA”) precludes all claims that involve rights vested in a CBA.” Slip op. at 21. The court was not persuaded, noting that “it appears contrary to the purpose of the FRSA to require that a remedy under that Act (namely, back pay or front pay) be exclusively reserved to a Public Law Board under the RLA for adjudication” and that “other federal courts and administrative bodies outside the RLA process have awarded back pay and front pay under the FRSA, instead of merely determining the length of time for a back pay or front pay award.” Id.at 23 (citations omitted).

BACK PAY AWARD IN TENTH CIRCUIT IS NOT REDUCED BY AMOUNT OF UNEMPLOYMENT BENEFITS RECEIVED BY PLAINTIFF

In Fresquez v. BNSF Ry. Co., No. 17-cv-0844 (D. Col. Nov. 4, 2019) (2019 U.S. Dist. LEXIS 190873), the court rejected BNSF’s argument that a back pay award should be reduced in the amount of unemployment benefits received by Plaintiff. The court stated:

A review of Tenth Circuit case law explains BNSF’s lack of citations: courts within the Tenth Circuit and the District of Colorado do not reduce back pay by the amount of unemployment insurance benefits received. The Tenth Circuit has reasoned that “unemployment compensation is purely a collateral source and is peculiarly the property of the claimant. It would be unfair to give [the party that wrongfully terminated an employee] the benefit of it in these circumstances.” Sandia Corp., 639 F.2d at 625. It further explained that the “deduction or offsetting of employment benefits may well result in a windfall to the employer.” Id. at 626.

Thus, “[t]his Court follows the rule that [a wrongfully terminated party’s] unemployment benefits should not be deducted from any back pay award.” Cooper v. Cobe Labs., Inc., 743 F. Supp. 1422, 1435 (D. Colo. 1990); see also Clawson v. Mountain Coal Co., 2007 WL 201253, at *12 (D. Colo. Jan. 24, 2007) (“[T]he more well-accepted trend in this Circuit is to decline to offset a damage award with unemployment benefits.”); Pickering v. USX Corp., 1995 WL 584372, at *44 (D. Utah May 8, 1995) (“either as a matter of law or a matter of discretion, unemployment compensation benefits are almost never offset against back pay awards”); Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1493 (10th Cir. 1989) (“the amount of unemployment compensation [the plaintiff] received is not essential to ascertaining backpay because it is within the district court’s discretion whether to discount a backpay award by the amount of unemployment compensation”).

Slip op. at 24-25.

BACK PAY; BURDEN TO PROVE FAILURE TO MITIGATE IS ON RESPONDENT; MERE ADMISSION BY COMPLAINANT THAT HE DID NOT LOOK FOR A COMPARABLE JOB FOUND NOT TO MEET THIS BURDEN UNDER FACTS OF THE CASE, SUCH AS PHYSICIANS’ STATEMENTS INDICATING COMPLAINANT WOULD NOT HAVE RETURNED TO WORK UNTIL AFTER HE RETIRED

In Brough v. BNSF Railway Co., ARB No. 2016-0089, ALJ No. 2014-FRS-00103 (ARB June 12, 2019), the ARB affirmed the ALJ’s decision finding that Respondent violated the FRSA when it fired Complainant for reporting a work injury. The ALJ awarded back pay from the date when Complainant’s physician pronounced him fit to return to work until the date Complainant chose to retire. On appeal, Respondent argued that Complainant’s deliberate withdrawal from the employment market constituted a failure to mitigate damages. The ARB first noted:

A wrongfully-discharged employee seeking back pay has a duty to exercise reasonable diligence to mitigate his damages by searching for substantially equivalent work. However, the employer must prove that its employee failed to mitigate by submitting evidence that would establish that substantially equivalent positions were available and that the employee failed to attempt diligently to secure such positions.

Slip op. at 14 (footnotes omitted). Here, the ARB noted that Respondent had not presented any evidence of available comparable jobs for the periods Complainant was not working, and thus the ALJ was unable to decide whether mitigation was possible. Respondent relied solely on Complainant’s “admission that he did not look for a comparable job during these times.” Id. The ARB noted that the Public Law Board had stipulated probation and no back pay, and that Complainant had testified that he perceived that if he returned to work he would have a target on his back, and thus he retired rather taking a chance on being fired again. The ARB also noted that physicians had indicated that Complainant was not expected to return to work until dates after when Complainant retired. On this basis, and the ALJ’s thorough discussion of her reasons for awarding back pay, the ARB found that Respondent failed to meet its burden of proof, and affirmed the ALJ’s back pay award as supported by substantial evidence.

BACK PAY; FELA DAMAGES FOR LOST WAGES, SUCH AS BACKPAY, ARE TAXABLE UNDER RRTA

In BNSF Railway Co. v. Loos, __ U.S. __, No. 17-1042 (U.S. Mar. 4, 2019), the U.S. Supreme Court held that FELA damages for lost wages, like backpay, are “compensation” taxable under the Railroad Retirement Tax Act (“RRTA”). Reversing Loos v. BNSF Ry., 865 F.3d 1106 (8th Cir. Aug. 3, 2017). See also Loos v. BNSF Railway Co., No. 13-cv-3373 (D. Minn. Apr. 22, 2019) (ordering offset of jury damages award for payment of taxes under the RRTA.

Front Pay

FRONT PAY; AWARD OF FRONT PAY FOR AN EXTENDED PERIOD FOUND NOT AN ABUSE OF DISCRETION UNDER THE CASE’S HIGHLY UNUSUAL CIRCUMSTANCES WHERE PLAINTIFF CAME FROM A RAILROAD FAMILY IN A SMALL RAILROAD TOWN, AND LOSS OF RAILROAD JOB LEFT HIM WITH AN ESSENTIALLY NON-EXISTENT JOB MARKET FOR COMPARABLE JOBS

In Wooten v. BNSF Ry., No. 19-35431 (9th Cir. June 22, 2020) (unpublished), the Ninth Circuit determined that the district court did not abuse its discretion under the usual facts of the case in awarding Wooten front pay for an extended period under the FRSA. The court stated:

Notwithstanding the temporary nature of front pay, we have upheld front pay awards for extended periods where the facts have justified such an award to make a plaintiff whole. See, e.g., Gotthardt, 191 F.3d at 1157 (affirming a front pay award covering approximately eleven years); see also Padilla v. Metro-N. Commuter R.R., 92 F.3d 117, 126 (2d Cir. 1996) (affirming a front pay award covering more than twenty years).

   Upon careful review, we conclude that the front pay award, although for an extended period, does not constitute an abuse of discretion based on the highly unusual, fact specific record before the court. Wooten had a limited education and was from a small railroad town. He came from a railroad family—his grandfather retired from the railroad—and worked at one of the best paying jobs in the area. Notably, Wooten acquired at BNSF a specific set of skills that were related only to the transportation industry. After being dismissed in violation of the FRSA, Wooten was faced with an essentially non-existent job market for comparable paying jobs.

   Indeed, BNSF’s own expert confirmed that the job market was highly unusual. The company’s vocational expert testified that Wooten had a highly specialized set of skills derived from his work at BNSF; that the most he could make working at another railroad would be $60,000 (compared to the approximately $100,000 he had been making at BNSF); that it was unclear whether another railroad would even be willing to hire him; and that his insurance job was probably the best-paying job he could otherwise hope to get. What’s more, it appears that the seniority Wooten had acquired at BNSF ensured that he would actually get put on jobs with that employer, while his lack of seniority at any other railroad might have rendered him unable to earn a full-time salary. BNSF did not show that Wooten would be able to find a comparable job at any point over his expected working career. Moreover, given the salary Wooten earned at BNSF and the benefits associated with the seniority that he enjoyed, Wooten would not have had any economically rational reason to ever leave BNSF, making it far from speculative to find that he would have stayed at the company until his retirement.

   In the vast majority of cases, a plaintiff will be able to find a comparable job within a few years, and for that reason, only a few years of front pay will be sufficient to bridge the gap in earnings. But this is not a typical situation. The district court’s findings supporting the front pay award were not clearly erroneous, and the award was not an abuse of discretion.

Slip op. at 5-6.

DENIAL OF RECONSIDERATION

In Fresquez v. BNSF Railway Co., No. 17-cv-0844 (D. Colo. Apr. 14, 2020), the court considered, and rejected on reconsideration, Defendant’s arguments that the front pay award was based on the unproven factual contention that other railroads would not hire Plaintiff because he had been fired by BNSF; that the court erred by assuming that the only employment available to Plaintiff was comparable employment; that the front pay award was more than necessary to make Plaintiff whole; that the court erred in it calculation of but-for earning; that the court improperly rejected Defendant’s deduction of unreimbursable railroad employee expenses; and that the court had misapprehended controlling law on valuation of future medical benefits.

See casenote on Fresquez v. BNSF Ry. Co., No. 17-cv-0844 (D. Colo. Dec. 17, 2019) (2019 U.S. Dist. LEXIS 216402) above in the Back Pay section regarding the court's authority to obtain expert's models and to modify the amounts to be awarded.

FRONT PAY; FUTURE UNCERTAINTY IS ACCOUNTED FOR BY DETERMINING CUTOFF DATE AND DISCOUNTING TO PRESENT VALUE

FRONT PAY; DURATION TO DATE OF FULL RETIREMENT MAY BE A WINDFALL FOR A YOUNG EMPLOYEE OR AN EMPLOYEE WITH ONLY SHORT TENURE

FRONT PAY; COURT MAY TAKE INTO ACCOUNT THAT RAILROAD JOBS ARE DIFFICULT TO MATCH IN TERMS OF WAGES, BENEFITS AND UNION PROTECTIONS

In Fresquez v. BNSF Ry. Co., No. 17-cv-0844 (D. Col. Nov. 4, 2019) (2019 U.S. Dist. LEXIS 190873), a jury found in favor of Plaintiff on his FRSA whistleblower complaint. The trial judge had found that the questions of back pay and front pay are equitable remedies to be decided by a judge. The trial judge passed away before these questions were decided and a second judge conducted a hearing on these remedies. The court initially found that reinstatement was not a viable option in this case and that an appropriate award of front pay must be determined. The parties disputed the appropriate duration for a front pay award. Plaintiff contended that “union railroad jobs are well-paid, secure positions available without a college degree with good health insurance and retirement benefits, and that no comparable employment exists outside the railroad industry” and stated that he sought front pay for the difference between his best alternative employment until his eligibility for full retirement with Defendant at age 60. Slip op. at 9. Defendant argued, inter alia, that front pay in the context of a FRSA case serves as “a limited-term stopgap payment for [Plaintiff] until he is able to secure a good job, not a long-term award for the remainder of [Plaintiff’s] career (as is common in personal injury cases, where the plaintiff’s capacity to work is diminished as a result of a defendant’s wrongful conduct).” Id. at 10.

The court noted authority cited by Defendant where courts distinguished between an equitable award of front pay and lost future wages. The court, however, found the 10th Circuit has not made such a distinction and declined to apply one in the instant case, finding that “[a]wards of front pay or lost future wages and benefits are necessarily speculative by nature, and the courts have accounted for future uncertainty by determining a cutoff date for awards of front pay, and discounting to net present value.” Id. at 12 (citation omitted).

The court noted that many cases involving awards of front pay until retirement involve older plaintiffs, and that some authority recognizes that awarding front pay until retirement for younger workers may result in a windfall. The court also noted that a plaintiff’s tenure with the organization is a relevant factor in determining duration of a front pay award, it being too speculative to assume that a worker with only short tenure would continue to work for the defendant until retirement. The court, however, found credible in the instant case that other comparable employment to that which Plaintiff enjoyed with Defendant could not reasonably be expected in terms of wages, fringe benefits, retirement income, and union job protection.

The court determined was that it was far too speculative to find that Plaintiff would stay 26 more years with Defendant until eligibility for full retirement. Moreover, the court found that award of front pay until full retirement age would be a windfall to Plaintiff, who was young and healthy, had an aptitude for learning, and appeared to have established a good alternative career in the building inspection industry since his termination by Defendant. The court, however, found that limiting front pay to only two to three years would result in a windfall to Defendant. Considering Plaintiff’s intent to stay with Defendant for the long term, his youth, his opportunity to build a career as building inspector with significant (if not comparable) wages and benefits, the court found that 10 years of front pay from the date of the jury verdict was warranted.

CALCULATION OF LOST FUTURE WAGES; FACTORING UNION WAGE RATE, HOW MUCH WORK IS AVAILABLE, AND HOW MUCH PLAINTIFF WORKED IS A LOGICAL BASIS FOR CALCULATION

In Fresquez v. BNSF Ry. Co., No. 17-cv-0844 (D. Col. Nov. 4, 2019) (2019 U.S. Dist. LEXIS 190873), the court rejected BNSF’s argument that a calculation of lost future wages should be based on Plaintiff’s actual wages prior to termination adjusted for annual increases for inflation. The court noted that BNSF did not present an expert who made the calculation based on BNSF’s suggested approach. The court also noted that Plaintiff’s expert had used a logical method for calculation, factoring in how much railroad employees are paid under union contracts, how much work is available, and how much Plaintiff elected to work on a historical basis.

CALCULATION OF VALUE OF HEALTH INSURANCE BENEFITS FOR FRONT PAY AWARD; DISTRICT COURT, ACKNOWLEDGING SPILT IN AUTHORITY, FINDS THAT PROPER MEASURE IS ACTUAL OUT-OF-POCKET EXPENSES FOR PLAINTIFF FOR A BACK PAY AWARD, BUT THAT FOR A FRONT PAY AWARD THE PARTIES SHOULD COMPARE THE VALUE OF SUCH BENEFITS FOR DEFENDANT’S WORKERS WITH VALUE OF BENEFITS AT ALTERNATIVE EMPLOYMENT AND REDUCE THE SAME TO PRESENT VALUE

In Fresquez v. BNSF Ry. Co., No. 17-cv-0844 (D. Col. Nov. 4, 2019) (2019 U.S. Dist. LEXIS 190873), Plaintiff’s expert calculated front pay to include health insurance benefit amounts based on the premiums Defendant paid or would have paid absent unlawful discrimination. Defendant argued that the amount should be based on actual out-of-pocket expenses to the former employee. The court, noting a circuit split on the question and inconsistency in the 10th Circuit, found that the analysis differs for back pay as opposed to front pay. For back pay losses, the court found that “the proper measure of lost medical benefits is the out-of-pocket expenses incurred by the employee for purchasing replacement coverage or paying medical expenses that would have been covered by the employer’s policy. This is the actual measure of damages, and easily calculable. “ Slip op. at 28. The court, however, found that this measure did not make sense in relation to a front pay award, and ordered the parties to “calculate the health benefit it component of front pay by adding a multiplier to the straight front pay wage losses….” Id. at 30. The court elaborated:

This will entail looking at the value of the health insurance benefits Fresquez received at BNSF, as compared to the value of such benefits at his alternate employment, and reducing same to present value. This approach will address the relative loss in value of health benefits (recognizing that “health insurance benefits” are not fungible goods, but rather are of varying quality and benefit). The parties are instructed to, in their supplemental briefing, justify the multiplier they each use in determining the value of the future health insurance benefits.

Id.

Interest

CALCULATION OF PREJUDGMENT INTEREST; COURT FINDS THAT FOR FRSA COMPLAINT, 29 U.S.C., 6621 ENSURES COMPENSATION WITHOUT A WINDFALL, AND THAT MONTHLY COMPOUNDING BEST REFLECTS A PLAINTIFF’S LOSSES

In Fresquez v. BNSF Ry. Co., No. 17-cv-0844 (D. Col. Nov. 4, 2019) (2019 U.S. Dist. LEXIS 190873), Plaintiff argued that the court should calculate prejudgment interest according to 29 U.S.C. § 6621 (IRS underpayment interest rate, which is generally the Federal short-term rate plus three percent), and that the interest be compounded daily pursuant to DOL guidance at 80 Fed. Reg. 69115 (Nov. 9, 2015). Defendant argued that prejudgment interest should be calculated using the post-judgment interest rate calculations set forth by 28 U.S.C. § 1961 (interest rate “equal to the weekly average 1-year constant maturity Treasury yield” with interest usually computed daily and compounded annually). The court noted its discretion as to the calculation of prejudgment interest, and the several methods used by courts in the 10th Circuit. The court concluded that the interest rate in § 6621 would ensure that Plaintiff was fully compensated for his damages without receiving a windfall, and that “monthly compounding better serves the purposes of the FRSA, more accurately reflects the plaintiff’s losses, and balances the parties’ competing requests for daily compounding (Fresquez) and annual compounding (BNSF).” Slip op. at 32 (citations omitted).

Compensatory Damages

COMPENSATORY DAMAGES FOR MEDICAL DISTRESS; ALTHOUGH LATER INCIDENTS FURTHER CONTRIBUTED TO THE DISTRESS, THE RECORD AS A WHOLE SHOWED THAT THE DISTRESS ORIGINATED AT THE TIME OF THE ADVERSE EMPLOYMENT ACTION; BUT-FOR CAUSATION

The next morning, Complainant was escorted by security to the conference room to meet with the General Foreman and the Manager of Mechanical Operations, where he explained his side of the story. Complainant said that he was frightened and humiliated by the experience. Complainant was later presented with a counseling letter for failure to perform train inspections in a timely manner, which Complainant believed to be part of a plan to fire him. After these incidents, Complainant was diagnosed by his primary care physician, Dr. Wilson, with debilitating anxiety-- and upon the physician’s advice--Complainant took extended sick leave until he found a lower paying position with Respondent at a different facility.

On appeal, Respondent contended that the record did not establish that the altercation caused the stress disorder. Respondent cited Complainant’s testimony that he was only “a little stressed” after the altercation with his supervisor. Respondent also cited evidence that Complainant had not sought medical help “until after the police escort and counseling letter, which were not found to be retaliatory acts. Respondent also references Dr. Wilson’s testimony, which failed to state whether the incident had any lasting impact on Complainant’s mental health or when the symptoms of the stress disorder began.” Slip op. at 13. The ARB, however, found that substantial evidence supported the ALJ’s damages award for loss of wages and medical expenses.

As discussed by the ALJ, however, Complainant’s and Dr. Wilson’s testimony demonstrated that Complainant began suffering from a diagnosed anxiety disorder that was not present prior to the altercation with Ward. Though the record suggests that subsequent incidents at work, including the written counseling letter, further contributed to Complainant’s stress, the evidence in the record as a whole demonstrates that the incident with Ward initiated Complainant’s anxiety, which worsened and eventually caused him to stop working. In other words, if the discrimination from Ward had never occurred, Complainant would not have needed to seek medical treatment and been out of work for a year.

Id. at 14 (footnote omitted).

COMPENSATORY DAMAGES; ARB VACATES AWARD OF REIMBURSEMENT FOR LIENS COMPLAINANT HAD TAKEN OUT FOR NOT RECEIVING INCOME; ALJ ALREADY AWARDED LOST WAGES, AND THE LIEN REIMBURSEMENT WOULD BE A DOUBLE RECOVERY

In Burt v. National Railroad Passenger Corp. (Amtrak), ARB No. 2020-0042, ALJ No. 2018-FRS-00015 (ARB Apr. 29, 2021) (per curiam), the ARB affirmed the ALJ’s determination that Respondent violated the FRSA when a supervisor cancelled overtime after an altercation with Complainant and a co-worker. The overtime cancellation had undermined Complainant’s authority as a union representative. The ALJ found that Complainant’s earlier FRSA protected activity was a contributing factor in the adverse action. Complainant later become so distressed that took extended medical leave before returning to work for Respondent at a different facility at a lower rate of pay. As part of the damages award, in addition to an award for lost wages, the ALJ ordered reimbursement of Complainant for liens he took out he had taken out with the Railroad Retirement Board and AETNA to pay for his expenses while he was out of work and had no income.

On appeal, the ARB vacated and reversed the lien award:

For the two liens Complainant had taken out to support himself while he was not receiving income, the ALJ awarded reimbursement of the liens in addition to the award for lost wages. The lost wages award enabled Complainant to pay back the liens he took out. By awarding both the lost wages and reimbursement of the liens, Complainant received a windfall by effectively being able to keep the loans without having to pay them back himself, which placed him in a better spot than he would have been if the retaliation had never occurred. The FRSA does not allow complainants to receive double recoveries.

Slip op. at 14 (footnote omitted).

REMITTITUR; AWARD OF $800,000 FOR EMOTIONAL DISTRESS NEED NOT BE SUPPORTED BY GRAPHIC OR HIGHLY DESCRIPTIVE TESTIMONY

In Fresquez v. BNSF Ry., No. 17-cv-0844 (D. Colo. Mar. 8, 2021), the court denied BNSF's motion for remittitur based on the argument that the jury's award of $800,000 as compensatory damages for emotional distress was not supported by Fresquez's testimony, and BNSF’s speculation that the jury's award appeared to be based on improper arguments of counsel and intent to punish. The court was not persuaded. The court recognized that while "Fresquez did not describe his emotional distress in the most graphic or descriptive terms, he clearly described that the stress from his termination had affected him in significant ways." Slip op. at 13.

EMOTIONAL DISTRESS AWARD MAY BE BASED ON PLAINTIFF’S TESTIMONY; OBJECTIVE EVIDENCE IS NOT REQUIRED

In Wooten v. BNSF Ry., No. 19-35431 (9th Cir. June 22, 2020) (unpublished), the Ninth Circuit determined that the district court did not abuse its discretion in concluding that the jury’s emotional distress award was supported by the evidence. The court stated:

“Generally, a jury’s award of damages is entitled to great deference, and should be upheld unless it is ‘clearly not supported by the evidence’ or ‘only based on speculation or guesswork.’” In re First All. Mortg. Co., 471 F.3d 977, 1001 (9th Cir. 2006) (quoting L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 791 F.2d 1356, 1360 (9th Cir. 1986)). The jury’s award was supported by Wooten’s testimony regarding the emotional impact he experienced after dismissal. Objective evidence is not required to support an emotional distress award. See Passantino, 212 F.3d at 513.

Slip op. at 7.

Punitive Damages

SUMMARY JUDGMENT ON PUNITIVE DAMAGES GRANTED WHERE THERE WAS NO EVIDENCE THAT DEFENDANTS CONSCIOUSLY DISREGARDED PLAINTIFF’S STATUTORILY PROTECTED RIGHTS, AND WHERE DEFENDANTS HAD TAKEN MULTIPLE ROUNDS OF TRAINING ABOUT FRSA PROTECTIONS

In Grantham v. CSX Transp., Inc., No. 19-cv-00065 (S.D. Ga. Mar. 7, 2022) (2022 U.S. Dist. LEXIS 39576), Plaintiff filed a FRSA suit against CSX and three employees, alleging that they had retaliated against Plaintiff for marking a railcar as defective, resulting in a several hour delay in the train’s departure. The Defendants moved for summary judgment on the question of whether Plaintiff was entitled to punitive damages. The court found it clear from the record that there was no evidence that Defendants consciously disregarded Plaintiff’s statutorily protected rights under the FRSA. the court also noted Defendants’ multiple rounds of training to protect against such disregard of FRSA protected rights. The court thus granted summary judgment in favor of Defendants on liability for punitive damages.

PUNITIVE DAMAGES UNDER THE FRSA; LIABILITY FOR PUNITIVE DAMAGES DOES NOT ARISE WHERE THE EMPLOYER DISTINCTLY BELIEVED THAT ITS DISCRIMINATORY ACTIONS WERE LAWFUL

PUNITIVE DAMAGES UNDER THE FRSA; COURT REJECTS RAILWAY’S ARGUMENT THAT ARB’S REVERSAL OF ALJ’S AWARD OF PUNITIVE DAMAGES WAS UNREVIEWABLE AGENCY ACTION

In Brough v. Admin. Review Bd., No. 19-71983 No. 20-70655 (9th Cir. Dec. 14, 2021) (not published) (2021 U.S. App. LEXIS 36858), the Ninth Circuit denied cross petitions for review of the ARB’s decision in Brough v. BNSF Railway Co., ARB No. 2016-0089, ALJ No. 2014-FRS-00103 (ARB June 12, 2019). Brough appealed the ARB’s determination that he was not entitled to punitive damages. The court found that the ARB did not err in reversing the ALJ’s award, noting that the ALJ had found that BNSF’s managers genuinely believed that Brough’s conduct was not protected by the FRSA, and that the ARB had found that BNSF had made a good faith effort to comply with the law. The court stated:

Although the ALJ found troubling evidence of indifference and callous disregard for the rights of workers, punitive damages liability does not arise where “the employer discriminates with the distinct belief that its discrimination is lawful,” Kolstad, 527 U.S. at 537.

Slip op. at 5.

The court rejected BNSF’s argument that the ARB’s reversal of the punitive damages award was unreviewable agency action, noting that 49 U.S.C. § 20109(d)(4) does not preclude court review of such, and that there are meaningful standards for determining whether an award of punitive damages is proper.

PUNITIVE DAMAGES; ALJ DID NOT COMMIT REVERSIBLE ERROR IN AWARDING $100,000 WHERE THE ALJ CONSIDERED MULTIPLE FACTORS, HAD SET THE AMOUNT BASED ON COMPARABLE FRSA CASES, AND DETERMINED THAT RESPONDENT HAD CREATED AN ENVIRONMENT WHERE EMPLOYEES WERE PLACED IN DANGER FOR FEAR OF LOSING THEIR JOBS

Respondent argued that the ALJ erred in awarding Complainant $100,000 in punitive damages “because Respondent’s general manager ‘honestly believed that [Complainant] was lying’ . . . .” Id. at 6 (footnote omitted). The ARB, however, found no reversible error by the ALJ in making the punitive damages award. The ARB noted that the ALJ had relied on factors such as--that Complainant had been singled out for discipline while other employees faced no discipline; Respondent’s general manager had relied on unverifiable personal assumptions about the conditions and ignored objection evidence; and, the general manager relied in making the termination decision upon witnesses and information that were never presented at the formal investigation or revealed to Complainant. The ARB also noted that the ALJ based the amount of the award on amounts awarded in other FRSA cases, how Complainant had been treated, and mitigating factors. The ALJ had determined that a work environment had been created by Respondent that put employees in danger out of fear of losing their livelihoods.

PUNITIVE DAMAGES; ARB AFFIRMS ALJ’S AWARD OF $35,000 IN PUNITIVE DAMAGES WHERE SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDINGS THAT RESPONDENT’S BUSINESS CULTURE RECKLESSLY DISREGARDED A COMPLAINANT’S ANONYMITY WHEN MAKING A CONFIDENTIAL REPORT, AND THAT RESPONDENT NEEDLESSLY HUMILIATED COMPLAINANT BY ARRANGING TO HAVE HIM ESCORTED BY POLICE TO A MEETING ABOUT AN ALTERCATION OVER OVERTIME ASSIGNMENT

In Burt v. National Railroad Passenger Corp. (Amtrak), ARB No. 2020-0042, ALJ No. 2018-FRS-00015 (ARB Apr. 29, 2021) (per curiam), the ARB affirmed the ALJ’s determination that Respondent violated the FRSA when a supervisor cancelled overtime after an altercation with Complainant and a co-worker, in order to undermine Complainant’s authority as a union representative. Complainant’s earlier 2013 FRSA protected activity was a contributing factor in the adverse action. The supervisor knew about the 2013 protected activity because a superintendent revealed to the supervisor that Complainant made the hotline complaint. In addition, Complainant had been escorted by security personnel the day after the 2017 altercation to a conference room to give his side of the story to supervisors about the overtime dispute. Complainant had found the police escort frightening and humiliating. Complainant requested punitive damages.

The ALJ found that Respondent’s “culture recklessly disregards a complainant’s anonymity when he or she engages in protected activity or other confidential reporting,” and that the police escort was evidence of Respondent’s problematic culture relating to protected activity. Slip op. at 9. Finding that these actions may have a chilling effect on the complaint process, the ALJ awarded $35,000 in punitive damages.

On appeal, Respondent argued that the disclosure of Complainant’s identity as a whistleblower and the altercation with the supervisor (Ward) were “one-off” occurrences and were not condoned by management. Respondent noted that Complainant had not been discouraged enough not to file complaints with EEOC and OSHA, and that the police escort was not found by the ALJ to be connected to any protected activity. The ARB was not persuaded by these arguments.

First, the argument that punitive damages were not warranted because Complainant was still able to file complaints is unavailing, as punitive damages are not awarded based on whether or not the employee yields to the employer’s wrongful conduct. Second, substantial evidence supports the ALJ’s finding that “it is part of Amtrak’s culture to recklessly disregard a complainant’s privacy when he or she engages in protected activity or other confidential reporting.” The record demonstrates that Ward was apprised of Complainant’s safety and EEOC complaints as a result of a workplace culture that disregards complainant anonymity, which led to the altercation and Ward’s retaliation against Complainant. Testimony from managers for Respondent demonstrated lack of care or ambivalence toward complainant confidentiality at the workplace. The ALJ did not find that Amtrak’s police escort was an adverse action, in large part because the record does not establish who called the police. However, the ALJ observed that obviously “someone from Amtrak called the police, and Amtrak managers allowed the police to publicly escort a union representative to and from discussions about an incident with an Amtrak manager; in effect, publicly harassing [and humiliating] Complainant for doing his job as a union representative.” As the ALJ found, “[n]othing in the record established a legitimate reason for police presence at the meeting.” The ALJ also found that the police escort demonstrated a problematic part of Respondent’s culture relating to protected activity, as the incident could have had a chilling effect on other workers.

Id. at 16 (footnotes omitted). The ARB thus affirmed the award of punitive damages. Respondent also contested the amount of the award, arguing that the ALJ failed to support how the amount was determined. The ARB determined, however, that the ALJ had not abused her discretion in determining the amount, noting that she had cited previous punitive damages award amounts affirmed the ARB. The ALJ had provided “brief parentheticals describing the employer’s conduct, to demonstrate how punitive damages awards were determined on a factual basis.” Id. at 17, n.97.

PUNITIVE DAMAGES MUST BE BASED ON DEFENDANT’S LIABILITY AND CULPABILITY FOR A VIOLATION OF THE FRSA, RATHER THAN ITS LIABILITY OR CULPABILITY FOR OTHER MISCONDUCT

In Klinger v. BNSF Railway Co., ARB No. 2019-0013, ALJ No. 2016-FRS-00062 (ARB Mar. 18, 2021), the ARB remanded the case to the ALJ to reassess the contributory factor and affirmative defense elements of the case because the ALJ applied an inextricably-intertwined or chain-of-events causation analysis that had been rejected the Board in Thorstenson v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019), rev'd, Thorstenson v. United States Dep’t of Labor, 831 F. App’x 842, 843 (9th Cir. 2020) (reversal put into context in Klinger, supra at 9, n.58), after the ALJ had issued his decision, and appeared to have been influenced by consideration of whether BNSF’s procedures in the matter had been heavy handed generally. The Board also vacated the ALJ punitive damages award because those legal errors may have influenced that award. The ARB stated:

Because we vacate the ALJ’s decision with respect to BNSF’s liability, we also vacate the ALJ’s award of damages. If the ALJ reaches the same outcome as to BNSF’s liability on remand, we will review that decision and any award of damages in due course. Just as our holding today does not preclude the possibility that the ALJ may appropriately find BNSF liable on remand, we also do not discount the possibility that the ALJ may appropriately find that punitive damages are warranted under the standard articulated above. However, we observe that as with the liability analysis, it appears that the ALJ’s punitive damages analysis may have veered towards a skewed judgment of the merits of the MCMP and BNSF’s conduct in the abstract and may have been premised, at least in part, on the ALJ’s assessment that BNSF violated Klinger’s privacy rights. We repeat again that a significant, intentional, or reckless departure from law may offer evidence not only of BNSF’s liability, but also its culpability for purposes of awarding punitive damages. However, the ALJ must assess BNSF’s liability and culpability for a violation of the FRSA, rather than BNSF’s liability or culpability for other misconduct.

Klinger, supra, slip op. at 16 (footnote omitted).

PUNITIVE DAMAGES MAY BE SUPPORTED BY TESTIMONY THAT DEFENDANT HAD A CULTURE THAT DISREGARDS RAILROAD SAFETY RULES AND EMPLOYEE RIGHTS

In Fresquez v. BNSF Ry., No. 17-cv-0844 (D. Colo. Mar. 8, 2021), the court denied BNSF's argument that that the jury’s award of $250,000 in punitive damages was inappropriate because, according to BNSF, Fresquez’s proof of a FRSA violation was scant, BNSF’s conduct did not rise to the level of a reckless or callous disregard for Fresquez's rights, and BNSF made good faith efforts to comply with the FRSA and has rules and process to encourage reporting of misconduct and to prevent discrimination or retaliation for such reporting. The court was not persuaded, noting that the jury had "heard testimony that BNSF has a culture that disregards railroad safety rules and employee rights." Slip op. at 15.

PUNITIVE DAMAGES; ARB AFFIRMS ALJ’S AWARD OF $25,000 IN PUNITIVE DAMAGES WHERE THE EVIDENCE SHOWED THAT EVERYONE INVOLVED WAS AWARE OF THE HOURS OF SERVICE ACT, THAT THE ACT HAD BEEN INTENTIONALLY VIOLATED BY RESPONDENT’S DIRECTIVE FOR COMPLAINANT TO STAY ON DUTY BEYOND HIS ALLOWED HOURS TO WRITE A REPORT ON A TRAIN DELAY, AND THAT IT WAS COMMONPLACE FOR EMPLOYEES TO BE REQUIRED TO REMAIN ON DUTY FOR A PERIOD IN EXCESS OF 12 CONSECUTIVE HOURS

In Lancaster v. Norfolk Southern Railway Co., ARB No. 2019-0048, ALJ No. 2018-FRS-00032 (ARB Feb. 25, 2021), the ARB affirmed the ALJ’s determination that Respondent retaliated against Complainant in violation of the FRSA when it suspended Complainant after he had raised an objection that requiring him to stay on duty to write a report on a train delay would violate the Hours of Service Act. The ALJ found that that Complainant’s objection was protected activity; that it had been a contributing factor in the suspension; and that Respondent had not shown by clear and convincing evidence that it would have suspended Complainant in the absence of the protected activity. The ARB affirmed these findings as supported by substantial evidence. Among other damages awards, the ALJ imposed the statutory maximum $25,000 in punitive damages. On appeal, Respondent argued that the award of punitive damages was inappropriate. The ARB, however, affirmed the ALJ’s punitive damages award:

Here, the ALJ followed the proper legal analysis by first determining whether punitive damages were warranted. He held they were based on record evidence and testimony showing that everyone involved was aware of the requirements of the Hours of Service Act. The ALJ also held that [Complainant’s supervisor] was prioritizing his supervisors’ priorities over compliance with the law. After determining that Respondent intentionally violated the Hours of Service Act and the FRSA, the ALJ then awarded punitive damages in the amount of $25,000 based on Respondent’s repeated violations of the Hours of Service Act. Complainant and his supervisors testified at the hearing that it was commonplace for employees to be required to remain on duty for a period in excess of 12 consecutive hours. The ALJ’s process and findings are consistent with ARB precedent and supported by the record.

Slip op. at 10 (footnote omitted).

DISTRICT COURT’S DECLINATION OF KOLSTAD INSTRUCTION ON PUNITIVE DAMAGES WAS NOT AN ABUSE OF DISCRETION WHERE SUFFICIENTLY SENIOR-LEVEL OFFICIALS AT MULTIPLE LAYERS REVIEWED AND APPROVED PLAINTIFF’S DISMISSAL

[W]e need not decide whether a Kolstad instruction on punitive damages is appropriate in a FRSA action. See Kolstad, 527 U.S. at 545. Sufficiently senior-level officials at multiple layers, including the Regional Vice-President, the Montana Division General Manager, a Director of Labor Relations, and the Director of Administration for the Montana Division, reviewed and approved Wooten’s dismissal. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 516-17 (9th Cir. 2000).

Id. at 4.

PUNITIVE DAMAGES; $150,000 AWARD FOR INTENTIONAL RETALIATION AFFIRMED WHERE, EVEN THOUGH COMPLAINANT WAS NOT FIRED, THERE HAD BEEN SIGNIFICANT HARM TO COMPLAINANT

In Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020) (per curiam), the ARB affirmed the ALJ’s $150,000 punitive damages award for intentional retaliation, despite the fact that Complainant was not fired. The ARB noted that the ALJ found that the harm to Complainant was nonetheless significant -- “(charges, targeted retaliation, drug testing, psychological testing, removal from service, disciplinary hearing, and the threat of termination)” -- and “resulted in strain, embarrassment, humiliation, and situations of emotional distress.” Slip op. at 27.

PUNITIVE DAMAGES; UNDISPUTED EVIDENCE THAT DEFENDANT HAD POLICIES IN PLACE TO TRY IN GOOD FAITH TO PREVENT RETALIATION INSUFFICIENT FOR SUMMARY DECISION WHERE THERE WERE GENUINE ISSUES OF MATERIAL FACT WHETHER ITS DISCIPLINARY REVIEW PROCESS WAS TRULY INDEPENDENT OF A MANAGER WHO COULD BE FOUND BY A JURY TO HAVE BEEN A BAD ACTOR

In Sanders v. Burlington Northern Santa Fe Ry., No. 17-cv-5106 (D. Minn. Oct. 24, 2019) (2019 U.S. Dist. LEXIS 184105; 2019 WL 5448309), BNSF sought summary judgment as to Plaintiff’s ability to seek punitive damages where there was undisputed evidence that it made good faith efforts to prohibit retaliation. The court noted authority finding that a defendant that makes good-faith efforts to comply with the FRSA is not liable for punitive damages. The court further noted that in the instant case it was a close-call. The court, however, found that there were genuine issues of material fact as to whether Defendant actually followed that policy where an internal review panel may not have been independent of a manager who a jury could find acted with reckless or callous disregard for Plaintiff’s FRSA rights or intentionally violated federal law by repeatedly pressuring Plaintiff to refrain from entering legitimate slow orders.

PUNITIVE DAMAGES; DEFENDANT’S “GOOD FAITH EFFORTS TO COMPLY” DEFENSE FOUND NOT APPROPRIATE FOR DECISION AS A MATTER OF LAW ON MOTION FOR SUMMARY JUDGMENT

In Smith v. BNSF Ry. Co., No. 17-cv-00977 (D. Col. July 18, 2019) (2019 U.S. Dist. LEXIS 119794; 2019 WL 3230975), the court denied Defendant’s motion for summary judgment on the question of punitive damages. Defendant had submitted documents showing that it made good faith efforts to ensure compliance with the law. The court, however, found that Defendant’s good faith could not be decided as a matter of law, but necessarily only after the presentation of evidence at the trial. When considering the motion, the court outlined the law on punitive damages in an FRSA case:

   FRSA provides that relief under the statute shall include “compensatory damages, including compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees” and “may include punitive damages in an amount not to exceed $250,000.” 49 U.S.C.A. § 20109(e). It does not specify, however, the standard for awarding punitive damages.

   The Supreme Court has looked to general common law principles—rather than the standard for awarding punitive damages adopted by any particular state—in determining FRSA punitive damages. Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 75 L. Ed. 2d 632(1983). In Smith, the court said “[p]unitive damages are to be awarded only when “the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Id. See also Worcester v. Springfield Terminal Ry. Co., 827 F.3d 179, 182 (1st Cir. 2016) (applying federal common law in FRSA case.) The Tenth Circuit has affirmed this interpretation in other contexts as well. See Flitton v. Primary Residential Mortg., Inc., 238 F. App’x 410, 419 (10th Cir. 2007) (In the context of punitive damages under Title VII actions, punitive damages are appropriate only if a plaintiff proves that her employer engaged in intentional discrimination “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.”); Jolivet v. Deland, 966 F.2d 573, 577 (10th Cir. 1992)(punitive damages in §1983 action.)

   The Department of Labor is the federal agency charged with administering FRSA. See 49 U.S.C. § 20109(d). Congress made clear that a primary purpose of FRSA was that “[l]aws, regulations, and orders related to railroad safety . . . shall be nationally uniform to the extent practicable.” 49 U.S.C. § 20106. The DOL’s Administrative Review Board has interpreted the FRSA standard for awarding punitive damages to be the same as the Smith standard. Petersen v. Union Pac. R.R. Co., ARB Case No. 13-090, 2014 DOL Ad. Rev. Bd. LEXIS 89, 2014 WL 6850019, at *3 (Nov. 20, 2014); see also BNSF Ry. Co. v. United States DOL, 816 F.3d 628, 642 (10th Cir. 2016).

   In Kolstad v. American Dental Ass’n, 527 U.S. 526, 535, 119 S. Ct. 2118, 144 L. Ed. 2d 494 (1999), the Supreme Court explained that “malice” or “reckless indifference” does not require “a showing of egregious or outrageous” conduct. Instead, a plaintiff must present proof that the employer acted “in the face of a perceived risk that its actions will violate federal law.” Id. at 536.

   Plaintiffs seeking punitive damages have a formidable burden. “[A]n award of punitive damages requires an assessment of [the defendant’s] subjective state of mind.” Wulf v. City of Wichita, 883 F.2d 842, 867 (10th Cir. 1989). The focus must be on whether the defendant’s actions call for “deterrence and punishment over and above that provided by compensatory awards.” Smith, 461 U.S. 30 at 54, 103 S. Ct. 1625, 75 L. Ed. 2d 632; Jolivet, 966 F.2d at 577.

   Even if a plaintiff can show unlawful retaliation, BNSF “may avoid vicarious punitive damages liability by showing that it made good faith efforts to comply with [the FRSA].” BNSF Ry. Co. v. United States Dep’t of Labor Admin. Review Bd., 867 F.3d 942, 949 (8th Cir. 2017).

Slip op. at 17-18.

PUNITIVE DAMAGES; ARB CONDUCTS DE NOVO REVIEW OF CONCLUSION OF LAW OF WHETHER PUNITIVE DAMAGES ARE WARRANTED

PUNITIVE DAMAGES; WHERE ALJ HAD FOUND THAT RESPONDENT HAD NOT INTENTIONALLY VIOLATED THE FRSA, ARB REVERSED ALJ’S AWARD OF PUNITIVE DAMAGES

In Brough v. BNSF Railway Co., ARB No. 2016-0089, ALJ No. 2014-FRS-00103 (ARB June 12, 2019), the ARB affirmed the ALJ’s decision finding that Respondent violated the FRSA when it fired Complainant for reporting a work injury. The ALJ awarded $75,000.00 in punitive damages. On appeal, the ARB agreed with Respondent’s contention that the ALJ erred in making this award because the ALJ had found that Respondent had not intentionally violated the FRSA. The ARB noted that it is bound to the size of a punitive damages award if the ALJ’s decision is supported by substantial evidence. Based on Section 557(b) of the Administrative Procedure Act, however, the ARB determined that it reviews de novo the question of whether a punitive damages award is warranted. Given the ALJ’s finding of no intentional violation, and the ALJ’s crediting of the managers’ belief that they were punishing unprotected conduct, the ARB reversed the conclusion of law that a punitive damages award was warranted.

Attorneys' Fees and Costs

ATTORNEY’S FEES; WHERE SEPARATE SETTLEMENTS WERE REACHED WITH TWO PLAINTIFFS REPRESENTED BY THE SAME LAW FIRM, AND ONE OF THE SETTLEMENTS RESOLVED ATTORNEY’S FEES AND EXPENSES BUT THE OTHER DID NOT, THE COURT WAS NOT PERSUADED BY DEFENDANT’S “DOUBLE DIPPING” CONTENTION AS TO SECOND PLAINTIFF’S FEES AND EXPENSES DEMAND, WHERE THAT PLAINTIFF HAD ACHIEVED A MUCH MORE SIGNIFICANT SETTLEMENT AMOUNT, AND WHERE DEFENDANT DID NOT PRESENT EVIDENCE TO SUPPORT ITS CONTENTION THAT THE FEES SHOULD BE CUT IN HALF AND THE ATTORNEY PROVIDED A FULL ACCOUNTING OF HIS WORK ON THE TWO CLAIMS

ATTORNEY’S FEES FOR LEGISLATIVE WORK AND INTERVENTION IN OTHER CASES INVOLVING ELEVENTH AMENDMENT IMMUNITY, RESULTING IN A NEW STATE LAW PROHIBITING THE NEW JERSEY TRANSIT RAIL OPERATIONS, INC. FROM RAISING SUCH IMMUNITY AS A DEFENSE, WAS FOUND TO BE COMPENSABLE WHERE IT PERMITTED PLAINTIFF’S CASE TO PROCEED

In Johnson v. NJ Transit Rail Operations, Inc., No. 17-2309 (E.D. Pa. Jan. 8, 2021) (2021 U.S. Dist. LEXIS 3339), Plaintiffs Jenkins and Johnson filed actions against Defendant alleging FRSA violations under 49 U.S.C. § 20109. Both cases were settled. The Jenkins settlement resolved the question of attorney’s fees and expenses, but the Johnson settlement did not. Accordingly, Johnson filed with the court a petition for attorney’s fees and expenses. Defendant filed objections, all of which the court denied. The court’s discussion focused on two of Defendant’s objections: whether Johnson’s fee petition for his law firm, which also represented Jenkins, included double dipping, and whether Johnson’s counsel’s work in effecting a legislative change to prohibit Defendant from asserting Eleventh Amendment immunity was compensable in the instant fee petition.

Double Dipping

Jenkins and Johnson were union officers, and brought their FRSA cases using the same law firm. Jenkins raised one claim under the FRSA, while Johnson raised two claims. Jenkins’ claim, and one of Johnson’s claims, arose out of the same underlying facts and involved similar allegations of retaliation. Defendant argued that Johnson’s demand for fees included work applicable to representation of Jenkins, and that the court should only award one-half of the attorney’s fee demand. The court, however, noted that Defendant provided no evidence that the fees agreed upon for Jenkins were also intended to cover Johnson’s claims, and that Johnson provided a complete account of his counsel’s work on his two claims. Defendant had merely provided a notation on every entry on counsel’s timesheet that involved Jenkins, and declared that Johnson’s fee should thus be cut in half. The court found that such notations did not carry Defendant’s burden in challenging the reasonableness of the requested fee.

The court found that the existence of Jenkins's settlement did not bear on Johnson's fee petition. The court also noted that Johnson's claims were much more extensive" than Jenkins's sole claim, and resulted in a much larger settlement amount. The court observed that the degree of success obtained is the most critical factor determining fee petitions, noting that "[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee." Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). The court found it clear that Johnson had obtained excellent results in the instant case.

Eleventh Amendment Work

Defendant, New Jersey Transit Rail Operations, Inc., contended that Johnson should not recover fees for counsel’s legislative work and intervention in Eleventh Amendment cases. Defendant had raised Eleventh Amendment immunity as a defense, and one of Johnson’s counsel’s responsive strategies was a successful effort to effect the New Jersey Transit Employee Protection Act, which prohibits the defense of sovereign immunity in cases involving NJ Transit Rail Operations, Inc. This legislative effort allowed Johnson’s case to move forward, and the court determined that fees were recoverable for this work:

Counsel may petition for fees for work that is “useful and the type ordinarily necessary to secure the final results obtained.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 560-61 (1986). In Delaware Valley, the Supreme Court determined that “useful” work includes hours that “did not occur in the context of traditional judicial litigation.” Id. (holding counsel could include time spent on regulatory work in fee petition pursuant to the Clean Air Act). Mr. Johnson has articulated the importance of counsel’s legislative work and intervention in Eleventh Amendment cases to his lawsuit. Without this work, Mr. Johnson’s lawsuit might not have gone forward. Therefore, Mr. Johnson’s counsel is entitled to recover fees for the Eleventh Amendment work.

Slip op. at 5.

ATTORNEYS’ FEES; ALTHOUGH COURT ACCEPTED PLAINTIFF’S USE OF OUT-OF-STATE COUNSEL, IT REDUCED REQUESTED HOURLY RATE FROM $625 TO $450; REDUCTION FOR TRAVEL TIME NOT SPENT ON CASE; REDUCTION FOR EXCESSIVE CHARGE FOR PREPARING COSTS AND FEES PETITION; SUBTRACTION OF TIME SPENT ON MOTION FOR EXTENSION WHERE BASIS FOR MOTION WAS BASED ON COUNSEL’S MISTAKE

LITIGATION COSTS; COURT REDUCED CLAIMED NON-TAXABLE LITIGATION COSTS BY 45% WHERE PLAINTIFF FAILED TO ESTABLISH REASONABLENESS OF CHARGES FOR ONE OF DENVER’S MOST EXPENSIVE HOTELS AND WHAT MAY BE ITS MOST EXPENSIVE RESTAURANT

LITIGATION COSTS; COURT’S ROLE IS TO DO ROUGH JUSTICE AND NOT TO ACHIEVE ACCOUNTING PERFECTION

EXPERT FEES; COURT DISALLOWED EXPERT FEE FOR WITNESS WHO TESTIFIED ONLY ON AN UNCONTESTED ISSUE

EXPERT FEES; COURT ALLOWED FEE PAID TO AN ACCOUNTANT TO REVIEW THE REASONABLENESS OF FEES AND COSTS

In Fresquez v. BNSF Ry., No. 17-cv-0844 (D. Colo. Mar. 20, 2020) (2020 U.S. Dist. LEXIS 48416), a jury returned a verdict in favor of Plaintiff after a six day trial, finding that Defendant retaliated against Plaintiff in violation of the FRSA. The court then considered Plaintiff’s initial and supplemental fees and costs petition.

Attorneys’ Fees

Plaintiff had engaged two attorneys as counsel. The court accepted Plaintiff’s argument that he had been unable to obtain local counsel in Colorado for his FRSA suit, and thus out-of-state rates were appropriate and reasonable. The court, however, was not persuaded that the hourly rate of $625 was reasonable. Although counsel represented that the rate was effectively $575 an hour because they had not charged for staff, the court found it impossible to determine how staff time factored into the proffered rate or the “effective” rate. The court declined to accept a location-adjusted rate based on the Laffey Matrix, noting that other courts in the District had declined to adopt it, even adjusted, outside the District of Columbia, and that counsel had not explained how they arrived at the locality adjusted rate. The court was not convinced by the declaration of other lawyers who represent injured railroad workers because they had not addressed the prevailing market rate for such work or the qualifications of one of Plaintiff’s attorneys. Exercising its discretion to use other factors to set the rate when presented within inadequate evidence of market rates, the court looked to the rates charged by employment lawyers within Colorado, the prevailing rates for those who specialize in FRSA and FELA litigation awarded by other courts nationally, and the level of competence required to successfully litigate the instant claim. The court found that the reasonable rate was $450 per hour.

The court indicated its appreciation that Plaintiff’s counsel exercised billing judgment to reduce claimed hours as the result of conferring with Defendant prior to submitting the fee petition, and summarily rejected a number of Defendant’s objections. The court, however, discussed a number of Defendant’s meritorious objections. It first noted that Plaintiff’s counsel had already reduced travel time by one-half in their initial fee motion to reflect time actually spent on the case during travel, but had failed to do so for their supplement fee petition. The court found the 50% reduction appropriate and similarly reduced the supplement. The court agreed that 69.8 hours drafting the initial fee motion was excessive and reduced this time by 50%. The court subtracted two hours charged for a motion for leave to file out of time where counsel had thought it was due the following week — the court finding it not reasonable to charge Defendant for Plaintiff’s counsel mistake.

Litigation costs

Plaintiff’s counsel sought $83,041.43 in litigation costs in addition to taxable costs. The court first rejected BNSF’s argument that “litigation costs” should be construed narrowly and limited to taxable costs under 28 U.S.C § 1920, finding that this argument had previously been rejected in Wallis and Wooten. BNSF also challenged the reasonableness of Plaintiff’s litigation costs, particularly travel expenses, expenses incurred in connection with the trial, and office supplies. The court found that Plaintiff failed to fully discharge the burden of establishing that the costs were reasonable related to the litigation, particularly in regard to troubling charges for one of Denver’s most expensive hotels and perhaps its most expensive restaurant. The court noted that there were “at least a dozen perfectly acceptable and substantially less expensive hotels within a half-mile of the federal courthouse.” Slip op. at 13. The court found, however, that some of the concerns raised by BNSF did not withstand scrutiny, and declined BNSF’s request that the court examine each receipt to determine how the cost related to the litigation and the reasonableness thereof. Rather, the court noted that the role of the court in this regard is to do rough justice rather than to achieve auditing perfection. The court found it appropriate to reduce the requested costs by 45%.

Expert fees

BNSF challenged requested fees of $28.505.66 as excessive for one expert witness who testified on track safety and defect reporting. The court agreed that Plaintiff had not shown that this fee was reasonable, particularly because the testimony was on an uncontested issue and that expert’s fee was more than double that of other experts.

The court disagreed with BNSF’s challenge to a fee paid to an accountant to review the reasonableness of fees and costs. BNSF argued that “[a]n attorney familiar with the case and with allowable costs is more qualified to perform this analysis than an accountant with no involvement in the case.” Id. at 15 (quoting BNSF objections). The court explained its disagreement: “There were a very large number of costs associated with this case, and Plaintiff’s counsel was not required to wade through piles of receipts to determine the costs incurred. Rather, it was reasonable to hire an outside professional to analyze the costs and raise issues where necessary, rather than spend attorney hours (particularly at Plaintiff’s counsel’s requested rate of $625) compiling and reviewing such information.” Id.

Other Remedies [new]

XIV. DISMISSALS, WITHDRAWALS, AND SETTLEMENTS

JURISDICTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT; ALTHOUGH FIFTH CIRCUIT AFFIRMED ARB DECISION IN LEIVA, IN WHICH THE ARB HELD THAT FAILURE TO EXPUNGE PERSONNEL RECORD MUST BE ENFORCED IN DISTRICT COURT AS A SETTLEMENT BREACH, COURT DID NOT SPECIFICALLY AFFIRM THIS RULING BUT INSTEAD DENIED PETITION FOR REVIEW ON CONTRIBUTORY FACTOR CAUSATION ELEMENT OF FRSA CLAIM

Leiva has not pointed to evidence that anyone “with retaliatory animus used [Powell] to bring about [an] intended retaliatory action.” Zamora, 798 F.3d at 331. Indeed, Leiva has identified no evidence that anyone associated with the July 2012 incident or subsequent settlement was at all involved in the events of August 2016. We reject the argument that the initial inclusion of the July 2012 incident in Leiva’s file somehow influenced Powell to submit the entire file—which included the July 2012 incident along with several others—to the administrative body over four years later. Leiva has not shown by a preponderance of the evidence that his July 2012 protected activity was a “contributing factor” in Powell’s decision to submit his file to the administrative body in 2016.

Slip op. at 4.

XV. EMPLOYER / EMPLOYEE

SUMMARY JUDGMENT GRANTED DISMISSING INDIVIDUAL OFFICIALS OF THE RAILROAD AS DEFENDANTS WHERE IT WAS UNDISPUTED THAT THEY WERE NOT THE ULTIMATE DECISION MAKERS ON THE ADVERSE ACTIONS TAKEN; FACT THAT MANAGERS COULD ISSUE ASSESSMENTS OF RULES VIOLATIONS, STANDING ALONE, WAS INSUFFICIENT TO IMPOSE LIABILITY AS DECISION MAKERS

Plaintiff then filed the instant FRSA suit against CSX and three employees, alleging that the charge of inefficiency was pretext for retaliation for Plaintiff's flagging the railcar as defective, and that the temporary suspension was further retaliation. The three employees named as Defendants were the manager who entered the delay assessment, the manager who entered an assessment against Plaintiff for the statement construed as a threat, and the CSX hearing officer who conducted the delay assessment hearing.

The court granted the Defendants motion for summary judgment dismissing the individuals as Defendants. The court found that it was undisputed that these three Defendants were not decision-makers with regard to the adverse actions against Plaintiff. The court noted that Plaintiff had cited no authority showing that the mere ability to issue an assessment to be investigated showed that the individual Defendants were “decision-makers.”

FRCP 12(b)(6) MOTION; COURT DENIES MOTION TO DISMISS FOR FAILURE TO STATE A GROUND FOR RELIEF IN REGARD TO CERTAIN DEFENDANTS ON THE GROUND THAT THEY WERE NOT PLAINTIFF’S “EMPLOYER” WHERE THERE WERE ALLEGATIONS THAT ONE DEFENDANT WAS RESPONSIBLE FOR DENYING PAYMENT FOR ALLEGED WORKPLACE SKIN CONDITION, AND THAT THE OTHER DEFENDANT REQUIRED PLAINTIFF TO REMOVE HIS SAVING FROM HIS 401(K) ACCOUNT; COURT FINDS THAT THESE ARE ACTIONS AN EMPLOYER OR AN EMPLOYER’S AUTHORIZED AGENT MAY TAKE

FRCP 12(b)(6) MOTION; COURT DENIES MOTION TO DISMISS FOR FAILURE TO STATE A GROUND FOR RELIEF IN REGARD TO CERTAIN DEFENDANTS ON THE GROUND THAT THEY WERE NOT PLAINTIFF’S “EMPLOYER” BECAUSE FRSA COVERS “RAILROAD CARRIERS” AND THERE WERE ALLEGATIONS THAT ONE DEFENDANT CONTROLLED CERTAIN OF THE RAILROAD’S OPERATIONS AND THAT THE OTHER DEFENDANT PROVIDES RAIL TRANSPORTATION SERVICES ACROSS THE NATION

In Ringer v. Neb., Kan., & Colo. Ry., No. 20-cv-3056 (D. Neb. Aug. 19, 2020) (2020 U.S. Dist. LEXIS 149787), Plaintiff’s complaint alleged retaliation under FRSA, 49 U.S.C. § 20109, regarding Defendants' alleged negligence in exposing him to a herbicide and refusing his request for medical treatment.

Defendant railroad’s holding company (Omnintrax Holdings, Combined Inc.) and a national rail transportation service provider (Omnitrax, Inc.) filed a FRCP 12(b)(6) motion to dismiss on the ground that Plaintiff was never "employed" by the Omnitrax Defendants. These Defendants asserted that the complaint’s allegation that he was employed by all defendants was merely a legal conclusion, insufficient to satisfy the requirements to state a claim for relief.

The court, however, found that Plaintiff identified that Omnitrax was responsible for denying payment of medication prescribed by Plaintiff’s physician to treat Plaintiff’s herbicide-induced dermatitis, and that that Omnitrax required Plaintiff to remove his saving from his employee 401(k) account. The court stated that “[b]oth of these actions are the kind of actions an employer or the employer's authorized agent may take with respect to an employer's employee.” Slip op. at 15.

The court also noted the FRSA speaks to the conduct of “railroad carriers,” citing 49 U.S.C. § 20109(a)(1) and 49 U.S.C. § 10102(5). Here, Plaintiff alleged that Omnitrax Holdings “controls the operation of NK&C's interstate transportation of agricultural products, and that Omnitrax, Inc. provides rail transportation services across the nation.” Id. at 16. The court stated that “[t]hose allegations are not merely conclusory labels, and at a minimum, are sufficient to raise a reasonable expectation that discovery will reveal evidence to substantiate the plaintiff's claim that the Omnitrax defendants fit the definition of a railroad carrier, and may be liable to the plaintiff for his damages.” Id. (citation omitted).

Federal Railroad Safety Act (“FRSA”) Whistleblower Digest Supplement

CONTENTS

XV. EMPLOYER / EMPLOYEE [New]

Mandate on Remand - Law of the Case [new]

LAW OF THE CASE DOCTRINE AND MANDATE ON A REMAND; THE MORE THE APPELLATE COURT DID NOT FULLY ADDRESS ARGUMENTS, APPLICABLE LAW, AND THE PARTICULAR FACTS OF THE CASE, THE LESSER THE CONSTRAINT THE LOWER COURT IN SUBSEQUENT LITIGATION

Standard and Scope of Review

Other Remedies [new]