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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

STEPHEN THORSTENSON,

ARB CASE NOS. 2018-0059

2018-0060

COMPLAINANT,

ALJ CASE NO. 2015-FRS-00052

DATE: December 21, 2021

BNSF RAILWAY COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Paul Bovarnick, Esq; Rose Senders & Bovarnick LLC; Portland, Oregon;

Shenoa L. Payne, Esq.; Shenoa Payne Attorney at Law PC; Portland,

Oregon

For the Respondent:

Jacqueline M. Holmes, Esq.; Jones Day; Washington, District of

Columbia; Autumn Hamit Patterson, Esq.; Jones Day; Dallas, Texas

Before: James D. McGinley, Chief Administrative Appeals Judge; Thomas

H. Burrell and Randel K. Johnson, Administrative Appeals Judges

DECISION AND ORDER ON REMAND

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

Federal Railroad Safety Act of 1982 (FRSA), as amended.1 Stephen Thorstenson

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

C.F.R. Part 18, Subpart A (2018).

filed a complaint with the Department of Labor’s Occupational Safety and Health

Administration (OSHA) in which he alleged that his former employer, BNSF

Railway Company, retaliated against him for engaging in activity protected by the

FRSA. On July 31, 2018, an Administrative Law Judge (ALJ) issued a Decision and

Order (D. & O.) in which he concluded that BNSF established by clear and

convincing evidence that it would have discharged Thorstenson even if he had not

engaged in protected activity. On November 25, 2019, we issued a Final Decision

and Order (F. D. & O.) affirming the D. & O.2

Thorstenson appealed our ruling to the U.S. Court of Appeals for the Ninth

Circuit. On December 21, 2020, the Court issued an unpublished Memorandum in

which it stated that “[t]he ARB’s decision erred in two respects.”3 The Court

remanded the case to the Board “for further proceedings consistent with [its]

disposition.”4 Accordingly, we address those two errors and affirm the F. D. & O.

BACKGROUND

We restate the relevant facts from the F. D. & O. At the relevant times at

issue in this case, Thorstenson worked as a conductor for BNSF in and around

Vancouver, Washington. BNSF’s General Code of Operating Rules (GCOR) required

employees to report workplace injuries immediately to the proper manager and

submit a written report.5 In addition, BNSF had a Policy for Employee Performance

Accountability which provided that employees would not be disciplined for late

reporting of muscular-skeletal injuries, as long as the injury was reported within 72

hours of the probable triggering event.6

On February 2, 2009, Thorstenson injured his left knee when he slipped on

steps while boarding a train. Thorstenson made a timely report of this injury and

was off work due to the injury for almost six months.7 When he returned to work, he

Thorstenson v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052

(ARB Nov. 25, 2019).

Thorstenson v. U.S. Dep’t of Labor, 831 F. App’x 842, 843 (9th Cir. 2020)

(unpublished).

Id. at 844.

Respondent’s Exhibit (RX) 5 at 15 (GCOR 1.2.5).

RX 5 at 18.

D. & O. at 3.

still had swelling, stiffness, and some pain in his knee after he completed work

trips, and occasionally saw a doctor for these symptoms. Thorstenson provided

verbal updates to BNSF managers regarding the condition of his knee.

On November 17, 2010, Thorstenson banged his left kneecap against a desk

onboard a train and felt pain, but thought that it was from the injury he sustained

in February 2009. The next day he had more than the usual swelling, stiffness, and

pain in his knee. He was not scheduled to work on November 19 and returned to the

orthopedic office where he saw a physician’s assistant. Thorstenson informed the

physician’s assistant that he had bumped a desk and was afraid that he had

aggravated his earlier injury.8 The physician’s assistant prescribed pain medication.

After returning to work on November 20 and 21, Thorstenson continued

having swelling, stiffness, and pain and returned to the doctor on November 22,

2010. The doctor drained fluid from the knee, took x-rays, injected cortisone, and

recommended that Thorstenson remain off work. On November 22, Thorstenson

contacted the trainmaster and filled out an injury report.9 Thorstenson reported the

injury to BNSF on November 22, 2010, which was five days after the injury on

November 17, 2010.10

On November 24, 2010, BNSF notified Thorstenson that it was investigating

his apparent late report of the workplace injury and would conduct a hearing on

January 21, 2011. On December 6, 2010, Thorstenson returned to the doctor, who

diagnosed several injuries to the knee. Complainant was off work until he recovered

from surgery and returned to full duty on January 17, 2011.

Following the January 21, 2011 hearing, General Manager Doug Jones

concluded that Thorstenson had violated company rules because he did not report

an injury within 72 hours, and he did not report the injury before going to the

doctor.11 Jones recommended a Level S or serious violation which resulted in a 30day “record suspension.” For a “record suspension,” the suspension is noted on the

employee’s work history in his personnel file, but he may continue working and

earning regular wages.

Id. at 4.

Id.

Id. at 7-8.

Although Thorstenson did not have a history of discipline within the previous

five years, he had reported an injury during that time. Therefore, Jones imposed a

36-month review period to attach to the Level S violation and record suspension. 12

At the time in question, the review period that attached to a Level S violation for an

employee that was “discipline free” and “injury free” was 12 months, for others,

including those who had reported an injury, it was 36 months.13

On June 26, 2011, five months after receiving the Level S for late reporting,

Thorstenson was working as a conductor aboard a moving train while another

employee worked as the engineer.14 Under BNSF rules, the engineer and conductor

are jointly responsible for the operation of the train. During its operation the train

exceeded its speed limit and passed through a crossing without sounding the

whistle.15 On June 29, 2011, BNSF’s Superintendent of Operations in Vancouver,

Chris Lucero, issued a Notice of Investigation into the incident on June 26, and the

charges against the two employees were heard together.

Based on the investigation, Lucero concluded that BNSF should dismiss both

Thorstenson and the engineer based solely on this incident.16 The human resources

manager disagreed and advised that it would be difficult to support a standalone

dismissal for the engineer’s case. She recommended that the June event be treated

as a Level S violation for both employees.17 The General Manager, (Johnson),

agreed and imposed Level S violations for Thorstenson and the engineer. However,

due to its progressive discipline policy, and Thorstenson’s 36-month review period

imposed in January 2011 for the previous Level S violation, BNSF terminated his

employment. Thorstenson was notified of his discharge on August 30, 2011.

Thorstenson filed a complaint with OSHA on February 7, 2011, alleging that

the record suspension was in retaliation for requesting medical treatment, following

the orders of a treating physician, and for notifying BNSF of a work-related injury.

On August 31, 2011, he amended his complaint, asserting that he would not have

Id. at 8.

Id.

Id. at 9.

Id. at 10.

Id. at 11.

Id. at 12.

been discharged had he not been previously disciplined for late-filing of an injury

report.

OSHA investigated the complaint and concluded that there was reasonable

cause to believe that BNSF violated the FRSA and awarded back pay, compensatory

damages and punitive damages, expungement of Thorstenson’s employment

records, and ordered BNSF to post a Notice to Employees.

BNSF timely objected and requested a hearing before the Office of

Administrative Law Judges (OALJ). On July 31, 2018, the ALJ issued his D. & O.,

in which he concluded that Thorstenson engaged in FRSA-protected activity, and

BNSF’s decision to discipline Thorstenson was “inextricably intertwined” with that

protected activity.18 The ALJ further found that BNSF established by clear and

convincing evidence that it would have disciplined Thorstenson for the late report

and safety violation even if he had not engaged in protected activity. Both

Thorstenson and BNSF appealed the ALJ’s decision to the Board.

On November 25, 2019, we issued our F. D. & O. affirming the D. & O. We

held that the ALJ erred by concluding that BNSF’s decision to discipline

Thorstenson was “inextricably intertwined” with his protected activity. We

explained that an “inextricably intertwined” analysis, which had been previously

applied by the Board and ALJs, departed from the plain text of the FRSA and, in

some cases, circumvented the appropriate statutory analyses.19 But the ALJ’s legal

error did not require remand because we affirmed his finding that BNSF would

have imposed the same adverse actions in the absence of Thorstenson’s protected

activity.

Thorstenson appealed our ruling to the U.S. Court of Appeals for the Ninth

Circuit. On December 21, 2020, the Court issued an unpublished Memorandum in

D. & O. at 28.

Since our prior ruling in this case, the Board has held that, even in situations in

which both the protected activity and the employer’s non-protected reason for adverse

action arise from the same set of events or situations, the ALJ, as the fact-finder, must still

decide whether the protected activity “contributed to” the adverse decision. See, e.g., Riddell

v. CSX Transp., Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054, slip op. at 21 n.13

(ARB May 19, 2020).

which it stated that “[t]he ARB’s decision erred in two respects.”20 The Court noted

that the circumstances of this 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.”21 The Court also concluded that we 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.”22 The Court

remanded the case to the Board “for further proceedings consistent with [its]

disposition.”23

BNSF filed a Motion for Additional Briefing on Remand on July 7, 2021. On

July 28, 2021, we directed the parties to submit briefs addressing whether the

Memorandum’s reversal of the conclusions it deemed erroneous alters our ruling on

BNSF’s liability under the FRSA. Both parties submitted briefs.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the Administrative Review

Board to review appeals of ALJ’s decisions pursuant to the FRSA.24 The Board will

affirm the ALJ’s factual findings if supported by substantial evidence but reviews

all conclusions of law de novo.25 Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”26

Thorstenson, 831 F. App’x at 843.

Id.

Id. at 3. We have recently noted that, although the Ninth Circuit stated in its

Memorandum that a proximate cause standard was inconsistent with circuit law, it

appears to have relied upon a more rigorous definition of “proximate cause” than the ARB’s

citation, which distinguished legal causation from mere factual causation. See Klinger v.

BNSF Ry. Co., ARB No. 2019-0013, ALJ No. 2016-FRS-00062, slip op. at 9 n.58 (ARB Mar.

18, 2021).

Thorstenson, 831 F. App’x at 844.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020).

29 C.F.R. § 1982.110(b); Austin v. BNSF Ry. Co., ARB No. 2017-0024, ALJ No. 2016FRS-00013, slip op. at 7 (ARB Mar. 11, 2019) (citations omitted).

McCarty v. Union Pac. R.R. Co., ARB No. 2018-0016, ALJ No. 2016-FRS-00066, slip

op. at 3 (ARB Sept. 23, 2020) (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)

(citing and quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))).

DISCUSSION

1. The Statutory and Regulatory Background

The FRSA prohibits a railroad carrier engaged in interstate or foreign

commerce from discharging, demoting, suspending, reprimanding, or in any other

way discriminating against an employee if such discrimination is due, in whole or in

part, to the employee’s lawful, good faith protected activity.27 To prevail, an FRSA

complainant must establish by a preponderance of the evidence that: (1) he engaged

in a protected activity, as statutorily defined; (2) he suffered an unfavorable

personnel action; and (3) the protected activity was a contributing factor, in whole

or in part, in the unfavorable personnel action. If a complainant meets this burden

of proof, the employer may avoid liability only if it proves by clear and convincing

evidence that it would have taken the same unfavorable personnel action absent the

complainant’s protected activity.28

2. The ARB’s Final Decision and Order

BNSF discharged Thorstenson because he received a second Level S

discipline while in probation status for a prior Level S discipline. While we rejected

the ALJ’s use of inextricably intertwined as a rule of causation for the first Level S

violation that Thorstenson received for untimely reporting, we affirmed the ALJ’s

finding that BNSF met its affirmative defense for that discipline.29

As for the second Level S violation, the ARB noted that the ALJ found that

there was “no dispute” that BNSF would have imposed the second Level S violation

for Thorstenson’s role in the June 2011 safety incident in the absence of protected

activity. The ALJ reasoned that the other employee involved in the incident was

also given a Level S violation, and that it was possible that Thorstenson could have

received a standalone dismissal given the seriousness of the charges against him in

connection with the event. However, in Thorstenson’s case, he was discharged

because the second Level S violation occurred while Thorstenson was under a 3627

49 U.S.C. §§ 20109(a), (b).

49 U.S.C. § 20109(d)(2)(A)(i); 49 U.S.C. § 42121(b)(2)(B)(i)(2000); Riley v. Canadian

Pac. R.R. Corp., ARB Nos. 2016-0010, -0052, ALJ No. 2014-FRS-00044, slip op. at 4 (ARB

Jul. 6, 2018) (citing 49 U.S.C. § 42121(b)(2)(B)(iv)).

F. D. & O. at 12-13.

month review period for the prior Level S violation.30 The ALJ found that it was

part of BNSF’s progressive discipline policy to terminate an employee for receiving

a second Level S violation within the review period.

The ARB found that the ALJ’s findings were supported by substantial

evidence. Thus, with two affirmative defense holdings supported by substantial

evidence, the ARB affirmed the ALJ’s dismissal of Thorstenson’s complaint.

3. Thorstenson’s Brief to Ninth Circuit

Thorstenson appealed the ARB’s decision to the Ninth Circuit. Thorstenson’s

brief to the Ninth Circuit asserted several errors of law, and in the first major

heading in his argument, he argued that the ARB erred in affirming the ALJ’s

affirmative defense finding. Under a subheading, Thorstenson asserted that the

“ARB applied the wrong legal standard in determining whether BNSF would have

taken the same adverse action in the absence of any protected behavior.”31

In a separate subheading, Thorstenson argued that “BNSF’s policy is

unreasonable and unduly burdens an employee’s right and ability to report

workplace injuries.” Thorstenson makes two ancillary points that “BNSF’s strict

enforcement of its rule without exception is unreasonable because it chills reporting

of work-place injuries” and “Thorstenson’s deviation from the policy was minor and

inadvertent.”32

This latter argument, though nestled within a major heading that the ARB

erred in affirming the ALJ’s affirmative defense finding, makes no mention of

BNSF’s affirmative defense or any of the FRSA’s statutory or regulatory language.

Instead, Thorstenson’s brief makes several policy-oriented arguments, citing 2012

guidance for OSHA investigators that was clarified or revised in subsequent

guidance.33

Even if BNSF applied the more favorable 12-month policy, Thorstenson’s second

Level S violation occurred within the 12-month period.

Brief of Petitioner at 23, Thorstenson v. U.S. Dep’t of Labor, No. 20-70211 (9th Cir.

June 26, 2020).

Id. at 27-40.

Id. at 28-29.

4. On Remand We Again Find that BNSF Has Proven its Affirmative

Defense

A. The Ninth Circuit’s Statements Regarding the Late-Reported Injury

Despite several arguments against the ARB’s and the ALJ’s affirmative

defense holdings in Thorstenson’s brief, the Ninth Circuit only addressed one

argument: that the ARB erred in rejecting Thorstenson’s argument that BNSF’s

policy was “unreasonable” and “unduly burdensome.” Following Thorstenson’s

argument, the Ninth Circuit expanded upon several policy grounds. The Ninth

Circuit reasoned that compliance with the policy could not reasonably be met and

was “virtually impossible” under certain circumstances. The Ninth Circuit wrote in

pertinent part:

First, the ARB rejected 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 these facts.

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.34

The Ninth Circuit reversed and remanded to the ARB “for further proceedings

consistent with this disposition.”

B. The Law of the Case Doctrine

The ARB is bound by the law of the case and the Ninth Circuit’s mandate.

The law of the case doctrine is “based upon sound policy that when an issue is once

litigated and decided, that should be the end of the matter.”35 “[F]or the [law of the

case] doctrine to apply, the issue in question must have been decided either

expressly or by necessary implication in [the] previous disposition.”36 In other

words, even when issues have not been expressly addressed in a prior decision, if

those matters were “fully briefed to the appellate court and . . . necessary predicates

to the [court’s] ability to address the issue or issues specifically discussed, [those

issues] are deemed to have been decided tacitly or implicitly, and their disposition is

law of the case.”37 The consistency provided by the rule “protects parties ‘from the

expense and vexation attending multiple lawsuits, conserves judicial resources, and

fosters reliance on judicial action . . . .’”38 The Tenth Circuit has stated that “the

doctrine is merely a ‘presumption, one whose strength varies with the

circumstances.’”39

C. The Memorandum Does Not Address BNSF’s Affirmative Defense

With this survey of “law of the case” in the federal courts, we observe 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

Thorstenson, 831 F. App’x at 843.

United States v. U.S. Smelting Ref. & Mining Co., 339 U.S. 186, 198 (1950).

Snapp v. United Transp. Union, 889 F.3d 1088, 1096 (9th Cir. 2018).

Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th

Cir. 2001) (alterations and omission in original).

Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir. 1991) (quoting Montana v. United

States, 440 U.S. 147, 153-54 (1979)).

Been v. O.K. Indus., Inc., 495 F.3d 1217, 1225 (10th Cir. 2007) (quoting Avitia v.

Metro. Club of Chi., Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)).

a particular case. As the appellate court leaves more substance untouched, the

lower court is less constrained.

There are several reasons why the Ninth Circuit’s memorandum does not

constitute the law of the case for purposes of BNSF’s affirmative defense. First, the

Ninth Circuit failed to analyze the FRSA framework and apply its reasoning to the

framework. Neither the FRSA’s language nor its concepts on affirmative defense are

mentioned in the Ninth Circuit’s 3-page, unpublished opinion. The FRSA’s

mandatory framework asks the fact-finder to determine whether protected activity

contributed to the adverse action. If it did, it further asks whether the employer has

proven by clear and convincing evidence that it would have taken the same action in

the absence of protected activity.

Second, the Ninth Circuit focused its attention on Thorstenson’s fairness

arguments aimed at BNSF’s late-reporting policy, not the specific affirmative

defense arguments. “Unduly burdensome” and “punitive” are not promulgated

regulatory factors for adjudicating an employer’s affirmative defense under the

FRSA. Further, these considerations are not necessary predicates to an affirmative

defense finding. Typically, courts do not review the merits of an employer’s policy

when deciding if the employer violated the FRSA.40

Third, the Ninth Circuit followed Thorstenson’s mischaracterizations of

BNSF’s policy to challenge hypothetical situations that do not match the record or

BNSF’s policy. The Ninth Circuit offered the following circumstances in support of

its finding that BNSF’s policy was unduly burdensome and unreasonable as applied

to Thorstenson: (1) Thorstenson had no knowledge of a new injury; (2) Thorstenson

was not required to miss work until after 72 hours had passed; (3) medical experts

did not identify Thorstenson’s symptoms as a new injury or take him off work when

they initially saw him on the 19th; (4) the fact that Thorstenson’s supervisor did not

know whether the symptoms required a new injury report underscores the

unreasonableness of the policy.

Acosta v. Union Pac. R.R. Co., ARB No. 2018-0020, ALJ No. 2016-FRS-00082, slip

op. at 12 n.7 (ARB Jan. 22, 2020) (quoting Collins v. Am. Red Cross, 715 F.3d 994, 999 (7th

Cir. 2013) (the FRSA “does not forbid sloppy, mistaken, or unfair terminations; it forbids

discriminatory or retaliatory terminations”)); see also Clem v. Computer Sciences Corp.,

ARB No. 2016-0096, ALJ Nos 2015-ERA-00003, -00004, slip op. at 19 (ARB Sept. 17, 2019)

(“neither the ALJ nor the ARB is a super-personnel department, evaluating the merits of

the employer’s decisions beyond the necessary parameters of the whistleblower retaliation

complaint before it.”).

These circumstances belie the record and BNSF’s policy. BNSF’s Policy for

Employee Performance Accountability (“PEPA”) provides:

Employees will not be disciplined for ‘late-reporting’ of

muscular-skeletal injuries, as long as the injury is

reported within 72 hours of the probable triggering event,

the employee notifies the supervisor before seeking

medical attention, and the medical attention verifies that

the injury was most likely linked to the event specified.41

BNSF’s policy is not built upon reporting: (1) only serious injuries, (2) only new

injuries, (3) injuries that require taking one off work status, (4) injuries that require

immediate medical attention, (4) injuries that require reporting to the FRA, or (5)

only if the omission of such would constitute a major violation. Rather, the policy

requires reporting, within 72 hours, any injury without any of those qualifications.

Further, the policy requires reporting before seeing a doctor.

The Ninth Circuit’s factual circumstances are inapplicable to this case. The

Ninth Circuit did not comment on the ALJ’s finding that BNSF requires reporting

even if the pain is thought to be an aggravation of a prior injury. This finding is

supported by the record.42 As the ALJ reasoned, Thorstenson was familiar with

these requirements as he had reported his prior injuries multiple times before.

An employee’s missing work is completely independent of the requirement to

timely report of an injury. An employer can require an employee to report an injury,

and discipline the employee for not timely reporting while continuing in on-duty

status. The Ninth Circuit may have been suggesting that Thorstenson’s injury was

not serious enough to be detected until after the 72 hours had passed. But this is

flatly contradicted by the record. Thorstenson went to a doctor due to pain within

the 72 hours. By seeking medical attention before notifying BNSF, Thorstenson

violated BNSF’s policy. Finally, testimony supports that BNSF’s reporting policy

RX 5 at 18.

See D. & O. at 20 (“Also as with Complainant, one employee believed his pain had

been an aggravation of a prior injury … The Public Law Board affirmed Level S discipline

with a 30-day record suspension, stating: ‘Even assuming, arguendo, as [complainant]

would subsequently offer, that the pain he suffered on December 19, 2010 was [an]

aggravation of a prior off-duty injury; such a contention did not excuse him from timely

reporting such circumstances to the Carrier.’”)

applies to injuries and pains to whatever degree, not to only those pains serious

enough to prevent one from working. An injury that was truly unable to be detected

within 72 hours may present a problem for BNSF’s disciplinary framework in some

other case, but it is factually inapplicable in this case.

Given these difficulties with the Ninth Circuit’s memorandum, the ARB

asked parties for supplemental briefing. Among other points, BNSF argues that the

Ninth Circuit’s order should be construed as limited to the contributing factor

element of Thorstenson’s FRSA claim:

To be sure, the Ninth Circuit also noted that “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.”

Thorstenson, 831 F. App’x at 843. But this sentence

appears at the end of a discussion of the existence of a

“violation” of FRSA—something the regulations specify is

merely a showing that the employee proved his

affirmative case. Moreover, this sentence appears without

any discussion of the existence of an affirmative defense,

without any discussion of the legal standard for proving

that defense, and without any discussion of the evidence

supporting BNSF’s affirmative defense. Therefore, one

should not improperly overread this lone sentence as

somehow implicitly addressing issues that the Ninth

Circuit chose not to address explicitly.43

Thorstenson counters that the Ninth Circuit’s opinion should necessarily include

the affirmative defense:

The Ninth Circuit’s reasoning precludes as a matter of

law BNSF’s affirmative defense that it would have

disciplined Thorstenson for “late” reporting absent his

protected activity. As the Court explained, under the facts

of this case, BNSF’s discipline for late reporting was

effectively discipline for the protected report and a

violation of the FRSA. Thorstenson, 831 Fed.Appx. at 843.

The Court’s opinion leaves no room for BNSF to avoid

liability under the FRSA by claiming that it would have

disciplined Thorstenson absent his protected activity

BNSF Railway Company’s Supplemental Brief on Remand at 17 n.2.

because Thorstenson filed his injury report “late.” The

Court already conclusively ruled that BNSF’s discipline

for untimely reporting was discipline for filing his

workplace injury report.44

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.”45 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.

D. The ALJ’s Findings on BNSF’s Affirmative Defense are Supported by

Substantial Evidence

Because we construe the Ninth Circuit’s first point of error as a holding on

Thorstenson’s contributing factor burden, on remand from the Ninth Circuit we

again find that the ALJ’s findings on BNSF’s affirmative defense are supported by

substantial evidence. The affirmative defense asks the fact-finder to determine if

Complainant’s Supplemental Brief on Remand from the Ninth Circuit Court of

Appeals at 6 (emphasis in original).

Thorstenson, 831 F. App’x at 843.

the employer has proven by clear and convincing evidence that it would have taken

the same adverse action in the absence of protected activity.46

As the ALJ recognized, 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.47 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.48

Here, Thorstenson committed two Level S violations within a short duration

and was terminated. The ARB found that the ALJ’s affirmative defense findings on

both the first and second Level S disciplines were supported by substantial

evidence. We briefly recap.

On November 17, 2010, Thorstenson banged his left kneecap and felt pain.

The next day he suffered swelling, stiffness, and pain in his knee. He sought

medical attention on November 19, and he continued experiencing swelling,

stiffness, and pain until November 22, when a doctor drained fluid from his knee,

took x-rays, injected cortisone, and recommended that he remain off work.

Thorstenson did not report his injury to BNSF until November 22, 2010, which was

five days after it happened.49

In finding that BNSF had proven its affirmative defense that Thorstenson

was disciplined for late reporting and not for simply reporting an injury, the ALJ

noted that Thorstenson and many others had filed timely injury reports with no

repercussions. BNSF submitted personnel files of seventeen workers who reported

See 49 U.S.C. § 20109 (incorporating the burdens of proof found in 49 U.S.C. §

42121(b)(2)(B)(iv)); Riley, ARB Nos. 2016-0010, -0052, slip op. at 4.

D. & O. at 22-23.

DeFrancesco v. Union R.R. Co., ARB No. 2013-0057, ALJ No. 2009-FRS-00009, slip

op. at 10-11 (ARB Sept. 30, 2015).

D. & O. at 4.

injuries but were not disciplined.50 Several employees were, however, disciplined for

late reporting.51 As the ALJ reasoned:

The overwhelming evidence on the record establishes that

in cases involving employees who report workplace

injuries, BNSF imposes no discipline when the report is

timely and imposes discipline when the report is late.

Timeliness is the distinguishing factor. Complainant

offered no counterexamples, and he is personally an

example of this practice in action: BNSF imposed no

discipline on the seven occasions that he reported an

injury timely, and it imposed discipline on the one

occasion when he reported late. There is no evidence of

pretext. There is no evidence of personal animus, and in

fact, Complainant testified that Trainmaster Canavan did

not seem upset with him when he went into the office to

complete an injury report. Tr. 343. Both Conducting

Officer Surina and decision-maker Jones described why

they believed Complainant’s injury was a work-related

injury that needed to be reported, those reasons were

consistent with one another, and I find that they honestly

held those beliefs.52

The ALJ further concluded that BNSF does not discipline individuals for the

timely reporting of their injuries, noting that Thorstenson himself had several prior

injury reports with no discipline.53 The ALJ continued:

Complainant knew about the policy, had complied with it

before, and eventually took the steps needed to comply –

but did so late. He conceded that, if he was confused about

whether he had to file a new injury report, he could have

contacted either management or his union within the 72hour required reporting period. Tr. 325. He told his doctor

on November 19, 2010, that he thought he aggravated his

knee condition when he hit the knee against his desk.

R.Ex. 5 at 30. That statement to his doctor was on the

second day after the incident; Complainant could have

Id. at 19.

Id. at 19-20.

Id. at 23.

Id. at 21, 23.

made the same report to BNSF within the remaining time

to meet the 72-hour deadline. At the least, he could have

contacted management and asked whether he needed to

report the new incident. He did neither.54

While a hypothetical policy that required the employee to ascertain whether

an injury is a “new injury” and to report “new injuries” within 72 hours may be

difficult comply with, that was not a requirement of BNSF’s policy:

Even if he thought his new injury was simply an

aggravation of the pre-existing injury, it was his practice

to report new symptoms. Yet, he did not. Moreover, the

policy requires reports of injuries, not reports of changing

symptoms. If Complainant had any question whether

hitting his knee against a hard surface and the onset of

serious symptoms requiring medical attention was a new

injury, he could have asked his supervisor, his

trainmaster, or his union. He did none of these.55

The ALJ found that BNSF enforced its late-reporting policy consistently. BNSF has

discharged employees, like Thorstenson, who had multiple Level S disciplines

including one late injury report and including individuals who believed that their

pain symptoms were related to prior injuries, even prior off-duty injuries.56

Thorstenson knew he had suffered an injury or aggravated an injury.

Thorstenson testified to experiencing pain after striking his knee against a metal

cabinet. Thorstenson sought medical attention for that pain. Thorstenson was

required to inform BNSF before seeing a doctor. This policy allows BNSF to

minimize any additional harm, address safety problems, and provide the resources

of its occupational health program. As the ALJ reasoned:

But BNSF’s rule here is not confusing. To the contrary,

Complainant complied with it on all seven of his previous

injury reports. It is true that there is an exception to the

requirement of an immediate report for injuries involving

muscular-skeletal injuries, but that exception could only

have helped Complainant because his was a muscular54

Id. at 24 n.30.

Id. at 24.

Id. at 20 (footnotes omitted).

skeletal injury, thus giving him 72 hours to report.

Moreover, I find nothing confusing about the exception. In

addition, as discussed in the text above, Complainant

could have sought guidance from his union, his

supervisor, his trainmaster, or BNSF’s human resources

department if he was confused. He did none of this within

the 72 hours he had to get it done. 57

Having considered these positions, we again affirm the ALJ’s order that BNSF met

its affirmative defense in the Level S discipline for late reporting.

Thorstenson had been charged with one Level S violation when, only five

months later, he and another BNSF employee were operating a train that exceeded

its speed limit and passed through a crossing without sounding the whistle. As the

ALJ noted, the discipline Thorstenson received in the summer of 2011 may have

been a Level S except for Thorstenson’s prior Level S for late reporting. The ALJ

observed that Thorstenson’s actions in the summer of 2011 warranted standalone

dismissal.58 BNSF relied on its progressive discipline policy to terminate his

employment for the two Level S disciplines.

Thorstenson complains that BNSF’s late-reporting policy is unfair and

unreasonable. Our task at the ARB is to ask not whether BNSF’s policy is the mostwell 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.”59 We therefore again conclude that BNSF did not violate the

FRSA by terminating Thorstenson’s employment.

5. The Board Has Not Created a New Standard of Causation for Cases

Arising Under the FRSA

The ALJ, following ARB precedent, found that BNSF violated the FRSA

because Thorstenson’s discipline was “inextricably intertwined” with his protected

Id. at 24-25 n.31.

Id. at 25. BNSF considered both Level S disciplines cumulatively in deciding to

discharge Thorstenson under its progressive discipline policy.

Furnco Constr. Co. v. Waters, 438 U.S. 567, 578 (1978).

reporting of his injury.60 In our review of the ALJ’s decision we held that the

“inextricably intertwined” analysis of prior cases was erroneous. We noted 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.”61

As noted above, the Ninth Circuit’s opinion held that the ARB erred in two

respects. The Ninth Circuit’s language on the second point is as follows:

Second, 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); cf. CSX Transp., Inc. v.

McBride, 564 U.S. 685, 694 (2011) (“[The Federal

Employers’ Liability Act] . . . did not incorporate any

traditional common-law formulation of proximate

causation . . . . Whether the railroad’s negligent act was

the immediate reason for the [injury] . . . was an

irrelevant consideration.” (internal quotation marks and

alterations omitted)).62

In this assigned error, the Ninth Circuit did not discuss the Board’s holding

or its rationale on inextricably intertwined. In Klinger v. BNSF Ry. Co, the ARB

discussed the Ninth Circuit’s opinion:

Although the Ninth Circuit stated that a proximate cause

standard was inconsistent with circuit law, it appears to

have relied upon a more rigorous definition of “proximate

cause” than the ARB’s citation, which distinguished legal

F. D. & O. at 10.

Id.

Thorstenson, 831 F. App’x at 843-844.

causation from mere factual causation. The Ninth Circuit

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.

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. See Hart v.

Massanari, 266 F.3d 1155, 1177-78 (9th Cir. 2001)

(stating that in an unpublished decision “the rule of law is

not announced in a way that makes it suitable for

governing future cases” and that “[a]n unpublished

disposition is, more or less, a letter from the court to

parties familiar with the facts, announcing the result and

the essential rationale of the court’s decision”).63

The Ninth Circuit did discuss and reject the ARB’s use of “proximate

causation.” The ARB acknowledges that “proximate causation” is a legal phrase of

art that has attracted many different definitions in many different applications. The

ARB quoted one sense as used by the Seventh Circuit to distinguish legal causation

from factual causation. The ARB wrote:

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 877.64

The Ninth Circuit construed the phrase “proximate cause” in a different manner

than that intended by the ARB. The ARB did not intend to create an additional

Klinger, ARB No. 2019-0013, slip op at 9 n.58.

F. D. & O. at 10.

standard above and beyond the statutory text that requires the complainant to

prove only that protected activity was “a contributing factor in the unfavorable

personnel action.” As we have stated before, 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.’”65

CONCLUSION

Having considered the Ninth Circuit’s Memorandum, and based on its

findings and conclusions, we again hold that, to establish a violation under the

FRSA, Thorstenson was required to show that his protected activity was a

“contributing factor” in the adverse employment actions taken by BNSF. And we

again AFFIRM that the ALJ’s finding that BNSF established by clear and

convincing evidence that it would have imposed the Level S violations and

terminated Thorstenson in the absence of the Complainant’s protected activity was

based on substantial evidence. As noted earlier, our role is not to determine

whether or not we might have reached a different result based on the record, but

rather to determine if the ALJ’s findings, which we have closely examined and

reflected in our opinion, are supported by substantial evidence, consistent with the

FRSA and our role as an appellate body. The ALJ’s analysis in this case clearly

meets this threshold requirement.

SO ORDERED.

See, e.g., Rothschild v. BNSF Ry. Co., ARB No. 2019-0022, ALJ No. 2017-FRS-00003,

slip op. at 2-3 (ARB Nov. 30, 2020) (“The Board made clear that applying either or both of

the ‘inextricably intertwined’ or ‘chain of events’ theories to create a presumption of

causation would be legal error. Accordingly, the ALJ erred as a matter of law in finding

that Complainant established that his protected activity was a contributing factor in his

discipline. Therefore, the Board remands this case to the Office of Administrative Law

Judges for further proceedings consistent with the ARB’s decision in Thorstenson. We also

direct the ALJ and parties to follow the Ninth Circuit’s analysis as set forth in Frost v.

BNSF Ry. Co.”); see also Acosta, ARB No. 2018-0020, slip op. at 6 (quoting Rookaird v.

BNSF Ry. Co., 908 F.3d 451, 461-62 (9th Cir. 2018)).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.