U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

In the Matter of:

TODD PRZYTULA,

COMPLAINANT,

v.

ARB CASE NO.

2017-0007

ALJCASENO.

2014-FRS-00117

DATE:

SEP 2 6 2019

GRAND TRUNK WESTERN

RAILROAD CO.,

RESPONDENT.

Appearances:

For the Complainant:

Robert B. Thompson, Esq.; Laurence C. Acker, Esq.; and Robert E.

Harrington III, Esq.; Harrington, Thompson, Acker & Harrington, Ltd.;

Chicago, Illinois

For the Respondent:

Noah G. Lipschultz, Esq., Joseph D. Weiner, Esq., Littler Mendelson,

P.C., Minneapolis, Minnesota

Before: William T. Barto, Chief Administrative Appeals Judge; James A.

Haynes and Heather C. Leslie, Administrative Appeals Judges.

FINAL DECISION AND ORDER

PER CURIAM. This case arises under the employee protection provisions of the

Federal Rail Safety Act of 1982 (FRSA). 1 Complainant Todd Przytula filed a

1

49 U.S.C. § 20109 (2008), as implemented by 29 C.F.R. Part 1982 (2018).

2

complaint with the United States Department of Labor's Occupational Safety and

Health Administration (OSHA) alleging that Respondent Grand Trunk Western

Railroad Company (GTW) violated the FRSA by discharging him from employment

in retaliation for activity protected by the FRSA. For the following reasons, we deny

the complaint.

BACKGROUND

GTW hired Przytula in 2003, and in 2011 he began working as a locomotive

engineer. As an engineer he was responsible for operating engines on tracks that

crossed public roads. Under GTW's attendance policy and a collective bargaining

agreement, employees such as Przytula were entitled to an established number of

personal leave days. Absences beyond the established maximum would result in

discipline unless they fell into an exception to the attendance policy. 2

Between July 24, 2003 and May 21, 2013, Przytula was disciplined sixteen

times for absences from work. 3 His employment was terminated on June 9, 2012,

and April 22, 2013, but on each of those occasions he was allowed to return to work

under "last chance" agreements. The latter of these agreements, issued on May 21,

2013, informed Przytula that further absences would result in discharge_;

On July 13, 2013, Przytula was nauseous and disoriented, so he went to his

family doctor, who told him not to go to work. Przytula did not work on either July

13th or 14th, and he returned to work on July 15th. Przytula was also absent from

work with a headache and stomach ache on August 4 and 5, 2013. It is 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.

2

Deposition of Todd W. Przytula (Przytula Dep.), Exhibits 3-4.

Respondent's Memorandum in Support of Its Motion for Summary Decision (Resp. Mem.)

at 4-5, citing Przytula Dep., Exhibits 5-23.

3

Resp. Mem. at 6, citing Affidavit of Phillip Tassin in Support of Respondent's Motion for

Summary Decision, '\I 4.

4

3

Przytula's absences in July and August 2013 violated his employer's

attendance policy as well as his May 2013 last chance agreement. As a result, GTW

conducted an investigative hearing to determine if the absences warranted

dismissal. At the hearing Przytula presented two notes from his doctor, but neither

note indicated that the doctor ordered Przytula to refrain from working. 5 After the

hearing GTW General Manager Phillip Tassin determined that Przytula's

absenteeism violated GTW work rules and the terms of his most recent last chance

agreement. GTW fired Przytula on August 30, 2013.

Przytula filed a three-page complaint with OSHA on October 10, 2013. In the

complaint Przytula asserted that he was absent from work "for various days in the

May 24 through August 9 [2013] time period as a result of a medical condition

which interfered with his ability to safely perform his job duties," and that his

"decision to report himself as sick to Respondent GTW is because he was following

the orders and treatment plan of his treating physician." 6

OSHA determined that Przytula's discharge did not violate the FRSA and

denied the complaint. Przytula requested a hearing on his complaint before an

Administrative Law Judge (ALJ). Prior to a hearing GTW filed a Motion for

Summary Decision, and on November 14, 2016, the ALJ issued a Decision and

Order Granting Respondent's Motion for Summary Decision (D. & 0.). Przytula

appealed the ALJ's ruling to the Board.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the ARB to review ALJ

decisions in cases arising under the FRSA and to issue final agency decisions in

these matters. 7 The ARB reviews an ALJ's decision granting summary decision

using a de novo standard. 8 Summary decision is appropriate if the pleadings,

5

Resp. Mem. at 7-8

6

Complaint at 1.

See Secretary's Order No. 01-2019 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (Apr. 3, 2019); 29

C.F.R. § 1982. ll0(a).

7

8

Mehan v. Delta Air Lines, ARB No. 03-070, ALJ No. 2003-AlR-004, slip op. at 2 (ARB Feb.

24, 2005),

4

affidavits, and other evidence show that there is no genuine issue as to any material

fact and that the moving party is entitled to prevail as a matter oflaw. 9 In

reviewing such a motion, the evidence before the ALJ is viewed in the light most

favorable to the non-moving party; the Board may not weigh the evidence or

determine the truth of the matter; our only task is to determine whether there is a

genuine conflict as to any material fact for hearing. 10

DISCUSSION

The FRSA prohibits a railroad company, a contractor, officer, or employee of

a railroad company from retaliating against an employee because the employee

engaged in activity protected by the FRSA. 11 A successful FRSA complainant must

prove that she or he suffered an adverse employment action that was caused, wholly

or in part, by complainant's protected activity. 12

Section 20109(c) of the FRSA prohibits employers from denying prompt

medical treatment and disciplining employees for following the treatment plan of a

treating physician:

(c) Prompt Medical Attention.(!) Prohibition.-

A railroad carrier or person covered under this

section may not deny, delay, or interfere with the

29 C.F.R. § 18.72(a) (2018); Franchini u. Argonne Nat'/ Lab., ARB No. 2013-0081, ALJ No.

2009-ERA-00014, slip op. at 6 (ARB Sept. 28, 2015) (citations omitted).

0

IO Franchini, slip op. at 6; Henderson u. Wheeling & Lake Erie Ry., ARB No. 2011-0013, ALJ

No. 2010-FRS-00012, slip op. at 9 (ARB Oct. 26, 2012).

49 U.S.C. § 20109. The FRSA incorporates the procedures found in the whistleblower

protection section of the Wendell H. Ford Aviation Investment and Reform Act for the 21st

Century, commonly known as "AIR 21." See 49 U.S.C. § 20109(d)(2)(A) ("Any [enforcement]

action [under the substantive prohibitions on retaliation for whistle blowing] shall be

governed under the rules and procedures set forth in [the AIR-21 whistleblower protection

provision].").

11

See 49 U.S.C. § 4212l(b)(2)(B)(iii) (2000); 29 C.F.R. § 1982.109(a); Luder u. Cont'/

Airlines, Inc., ARB No. 10-026, ALJ No. 2008-AIR-009, slip op at 6-7 (ARB Jan. 31, 2012).

12

5

medical or first aid treatment of an employee who is

injured during the course of employment. If

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.

(2) Discipline.A railroad carrier or person covered under this

section may not discipline, or threaten discipline to,

an employee for requesting medical or first aid

treatment, or for following orders or a treatment

plan of a treating physician, except that a railroad

carrier's refusal to permit an employee to return to

work following medical treatment shall not be

considered a violation of this section if the refusal is

pursuant to Federal Railroad Administration

medical standards for fitness of duty or, if there are

no pertinent Federal Railroad Administration

standards, a carrier's medical standards for fitness

for duty. For purposes of this paragraph, the term

"discipline" means to bring charges against a person

in a disciplinary proceeding, suspend, terminate,

place on probation, or make note of reprimand on an

employee's record.

The Board recently discussed the extent of employee protection provided by

Section 20109(c) in Wevers v. Montana Rail Link, Inc. 1.3 In that case we concluded

that "subsection 20109(c)(l) prohibits an employer from denying, delaying, or

interfering with medical treatment or first aid only in the temporal period

immediately following a workplace injury." 14 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)(l). 15 Several federal courts

13

ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019).

14

Wevers, slip op. at 13 (emphasis added).

15

Id. at 12-13.

6

have also coneluded that subsection (c)(2) applies only to injuries suffered at the

workplace. 16

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.

CONCLUSION

GTW is entitled to summary decision as a matter of law. Accordingly, we

AFFIRM the ALJ's Order Granting Respondent's Motion for Summary Decision

and DENY Przytula's complaint.

SO ORDERED-

See, e.g., Grand Trunk Western R.R. Co. v. U.S. Dep't of Labor, 875 F.3d 821, 823 (6th Cir.

2017) ("[S]ubsection (c)(2), just like its preceding subsection (c)(l), applies only to on-duty

injuries."); Stokes v. Se. Penn. Transp. Auth., 657 Fed.Appx. 79, 80-82 (3d Cir. 2016)

(medical instruction to stay on bed rest "was unconnected to railroad safety, and thus

[plaintiffs] refusal to appear due to a non-work-related risk to her was not covered by the

FRSA''); Port Authority Trans-Hudson Corp. v. Secretary, U.S. Dept. of Labor, 776 F.3d 157,

162 (3d Cir. 2015) ("Since, under subsection (c)(2), a physician's order could include a

direction that an employee not work (as the physician's order did in this case), and because

there is no temporal limitation in the statute, the DOL's interpretation would functionally

confer indefinite sick leave on all railroad employees who can obtain a physician's note.");

Murdock v. CSX Transp., Inc., No. 3:15-cv-1242, 2017 WL 1165995, at *3 (K.D. Ohio 2017)

(medical treatment described in subsection (c)(2) "is limited to injuries that occur 'during

the course of employment"').

16