U.S. Department of Labor

Agency decision

Ask Donna

What actually matters in this document.

Text

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

DALE GOURNEAU,

ARB CASE NO. 2023-0034

COMPLAINANT,

ALJ CASE NO. 2021-FRS-00018

ALJ EVAN H. NORDBY

DATE: May 21, 2025

BNSF RAILWAY COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Frederic A. Bremseth, Esq.; Bremseth Law Firm, PC; Minnetonka,

Minnesota

For the Respondent:

Bryan P. Neal, Esq.; Holland & Knight, LLP; Dallas, Texas

Before JOHNSON, Chief Administrative Appeals Judge, and THOMPSON

and KAPLAN, Administrative Appeals Judges

DECISION AND ORDER

This case arises under the whistleblower protection provisions of the Federal

Railroad Safety Act of 1982 (FRSA).1 Dale Gourneau (Complainant or

Gourneau) filed a complaint with the United States Department of Labor’s

Occupational Safety and Health Administration (OSHA) alleging that

BNSF Railway Company (Respondent or BNSF) violated the FRSA by terminating

his employment.2 OSHA determined that Gourneau’s discharge did not violate the

FRSA. Gourneau requested a hearing before an Administrative Law Judge (ALJ).

49 U.S.C. § 20109, as implemented by 29 C.F.R. Part 1982 (2024).

Decision & Order (D. & O.) at 2.

On May 4, 2023, ALJ Evan H. Nordby issued a Decision and Order (D. & O.)

concluding that Gourneau’s discharge violated the FRSA. BNSF timely appealed to

the Administrative Review Board (ARB or Board). We affirm the ALJ’s D. & O.

BACKGROUND

Gourneau worked as a carman for BNSF from 2002 until his employment

was terminated on January 22, 2020.3 For eighteen years, his only prior incident of

discipline was for one unexcused absence due to the passing of his mother.4 Aside

from that one absence, Gourneau had a completely clean record until the four

months preceding his dismissal.5 At all times relevant to this case, he worked at

BNSF’s Madan, North Dakota train yard.6 The lead foreman for Madan is Mark

Bieber.7

As a carman, Complainant was responsible for inspecting train cars as they

arrived at the train yard.8 Not every train was scheduled for inspection upon

arrival, although carmen would note issues on “non-inspection” trains.9 When a

carman discovered a defect, it was called a “bad order” report and those reports

were logged.10 Some bad order reports involved minor repairs that a carman could

complete in the train yard.11 Other times a train car was pulled from service and

sent for repair.12 In general, when a car needed repair, it slowed down operations.13

Complainant was regarded as a good carman and was knowledgeable about

the Federal Railroad Authority (FRA) rules that govern train safety standards.14 He

was active in safety initiatives at BNSF, including as a member of the Safety

Id. at 2-3.

Id. at 3.

Id.

Id. at 4.

Id.

Id. at 3.

Committee, the Leadership Advisory Committee, and a program called Approaching

Others, which encourages non-adversarial ways of raising safety issues.15

Carmen travel around the train yard on ATVs. The train yard, which

contains multiple train tracks, does not have stop signs.16 There are areas in the

train yard that pose increased safety risks due to their proximity to busy terminals,

the railroad crossing area, or a convergence of multiple tracks. These spaces are

designated as “foul areas,” in which employees are not permitted to stop because of

risk of death or harm from a moving train.17 There are two videos in the record,

which show that many of the tracks run close to or cross each other.18 Thus, there

are substantial areas of the yard that are foul areas because of the numerous tracks

in close vicinity to each other.19

In approximately August of 2019, Complainant raised an issue with Mark

Bieber, Complainant’s supervisor and a general foreman, regarding the

administration of BNSF’s “Broken Wheel Club” program.20 The Broken Wheel Club

is an incentive program that encourages employees to report defects with wheels to

prevent derailments.21 If an employee reported a defect and the person who

administered the program in Fort Worth found it eligible, the employee could

receive $500. Complainant testified that he discovered that management in his

district was not submitting the carmen’s reported wheel defects for compensation.22

Complainant raised the issue with Bieber and made copies of the rules for himself,

Bieber, and human resources.23

On September 3, 2019, Complainant raised several more safety concerns.

That morning, Complainant raised concerns pertaining to road conditions including

Id. at 4, 14.

Id. at 5.

Hearing Transcript (Tr.) at 55 (Gourneau testimony).

Respondent’s Exhibit (RX) -24, -25.

See Tr. at 53, 55, 56 (Gourneau testimony) (testifying about the numerous tracks in

proximity to each other and how parts of the yard are designated foul areas, specifically

stating about some of the tracks “[t]hey’re too close together. There’s not enough space in

there to drive through there safely.”).

D. & O. at 4.

Id.

Id. As a result of Complainant’s efforts, carmen received compensation. Id.

washboarding,24 potholes, and missing blue flags.25 Later that shift, Complainant

made three bad order reports on a train involving stencil violations.26 He noticed

that some of the cars on a nearby non-inspection train were missing the required

federal consolidated stencil to identify the cars.27 Complainant radioed the relevant

supervisor, J.T. Smith, to ask if he should “bad order” the cars or repaint the

stencils himself. Complainant testified that Myles Braun, one of Respondent’s

supervisors, then came on the radio and “sternly” told Complainant to go get the

stencil.28 While Complainant and his colleague, Matthew Williams, were waiting for

a train to pass they heard a sound that indicated the running boards were broken

on a non-inspection train.29 Three total broken running boards were identified.30

1. Level S Violations

When BNSF employees engage in misconduct, the misconduct is rated based

on its severity. At issue in this case are two level S or “Serious” violations, and one

conduct violation.31 BNSF’s policy is that two level S violations within a 12-month

period will generally result in dismissal.32

When an employee is charged with misconduct, BNSF holds an investigation,

during which a manager outside the employee’s chain of command holds a

hearing.33 The manager who conducts the investigation is chosen by the general

foreman of the facility.34 The investigator recommends appropriate discipline.

In cases where dismissal is recommended, BNSF’s Policy for Employees’

Performance Accountability (PEPA) committee reviews the investigation record

created by the investigator and the employee’s personnel file to determine whether

RX 28 at 3. “Washboard” or “washboarding” and ballast conditions relate to uneven

and bumpy roads and present safety concerns.

D. & O. at 4. Blue flags were used as a safety measure to indicate that there were

men at work on a train such that certain safety precautions including blocking switches

would be taken. Tr. at 39-40.

D. & O. at 6.

Id. “The stencil includes information such as the build date of the train car.” Id. at 6

n.5.

Id. at 6.

Id.

Id. at 10.

Id. at 34.

Id. at 7, n.7.

Tr. at 275 (Chad Vogele testimony).

dismissal is appropriate.35 PEPA does not conduct a separate investigation as part

of its review. If PEPA determines that termination is appropriate, PEPA forwards

the proposed termination and investigation record to other management for

approval.36 The PEPA committee is based out of Fort Worth, Texas.37

In this case, the violations that led to Complainant’s dismissal happened in

short succession. The first occurred on September 3, 2019, which resulted in a 20day actual suspension, a 10-day record suspension, and a 12-month probationary

period.38 The second occurred on January 3, 2020, which resulted in dismissal.39

Both of the Level S violations at issue in this case involved violations of

BNSF’s Mechanical Safety Rule 12.1.2, “crossing tracks,” which states as follows:

When crossing tracks with a motor vehicle or off-track equipment at

non-public crossing locations:

•

Approach as close to a right angle to the track as practical to

allow for optimal viewing of potential approaching [train]

movements.

Stop before crossing the track(s), unless the vehicle or off-track

equipment is foul of a previously crossed track.

Look for trains, engines, rail cars and on-track equipment

movements approaching from either direction.

Yield to trains, engines, rail cars and on-track equipment before

proceeding across the track(s).[40]

The rule does not specify a distance from the crossing at which an employee

must stop. At the hearing, every witness who was asked to specify an appropriate

D. & O. at 8. PEPA is the name of BNSF’s progressive discipline policy and also the

name of the committee.

Id. at 13-14.

Id. at 8.

Id. at 11.

Id. at 12-13.

Id. at 5.

stopping distance gave a different one.41 During his testimony, Bieber agreed that it

was up to the employee’s discretion to determine safe operations.42

A. September 3, 2019 Incident

On September 3, 2019,43 Complainant was operating an ATV in the yard.

He stopped to do work and saw his supervisor for that day, Braun, speaking with

his coworker, Matthew Williams, east of where Gourneau was working.

When Gourneau completed his task, he got on his ATV and drove across a set of

tracks.44 The record contains video of this crossing but does not show where

Gourneau stopped.45

Within a few feet of crossing the tracks, Braun told Gourneau to stop and

admonished him for not stopping before crossing the track.46 Gourneau responded

that he knew Braun had seen him stop while performing work.47 Gourneau testified

that he stopped in that location to avoid stopping in a designated foul area, which is

prohibited. He further testified that he had stopped in that same location before, as

had his colleagues.48 The video is consistent with Gourneau’s testimony.

Three of Gourneau’s colleagues testified at the hearing that they had

previously stopped where Gourneau had stopped without incident.49 Gourneau

similarly testified that Respondent had never had a problem with him stopping at

that location before.50 In October 2019, a safety meeting was held at which carmen

were told to stop before crossing a track in the same manner as Complainant had

stopped. After this meeting, several workers told Gourneau that Bieber’s instruction

See Tr. at 279 (“At or near the crossing,” with near meaning “. . . like one or two feet

. . . like right before the crossing, a couple of feet,” per Chad Vogele); Id. at 374 (“About 25

feet from the track,” per PEPA Committee member Detlefsen); Id. at 386 (“probably 30 to

40 feet,” per Bieber).

Id. at 411. He goes on to say that “150 feet is a bit excessive.” Id.

After Complainant reported washboarding, potholes, and missing blue flags, but

before he reported illegible stencils and broken running boards. D. & O. at 4-6.

Id. at 5.

Id. at 6; RX-25.

D. & O. at 5.

Id.

Id. at 15-16.

Tr. at 43.

for properly crossing the tracks was the same as the conduct for which Gourneau

had been suspended.51

Later that day, Braun summoned Gourneau to his office. Complainant

testified that he “knew they were mad” because he made nine total bad order

reports that day.52 Gourneau asked Williams to accompany him as a witness.53

At this meeting, Gourneau received paperwork about the alleged failure to stop.54

Two days later, Gourneau was notified there would be a formal investigation into

the incident, and shortly after that, he was notified that a second charge of

discourteousness was added.55

According to Braun, Gourneau was discourteous to him at the time of the

September 3 incident. He testified that Gourneau had cut him off in an “elevated

tone, very disrespectfully, and disrespectfully told me that I should go hang out

with the round house which is the slang term for our machinists . . . and electricians

[a]nd turned around and started his Honda – his four-wheeler and drove away from

me.”56 Braun’s text message to Bieber on September 3, 2019, did not mention

Gourneau’s tone or discourtesy, only that he did not stop at the crossing.57

On September 5, 2019, Bieber sent Braun a text message asking whether

Gourneau had been “discourteous towards [him] at any time” to which Braun

replied, “yes.”58 Braun testified that he felt Gourneau was upset at the time he

initially spoke to Gourneau, and wanted to give him time to cool-off, which was why

he did not bring the discourteousness up earlier.59 Gourneau denies being

discourteous.60 The ALJ found that Braun had an opportunity to raise the alleged

discourteousness when he served Gourneau with the initial paperwork, but did

not.61 Based on this and other facts surrounding this issue, the ALJ ultimately

D. & O. at 10, 29.

Id. at 6.

Id.

Id. Discourteousness is a violation of BNSF’s code of conduct.

Tr. at 308.

D. & O. at 7.

Id.; Tr. at 316.

D. & O. at 7; Tr. at 319-21.

D. & O. at 6.

Id. at 19.

found that Gourneau had not been discourteous, and that this allegation was added

by Respondent after the fact.62

Bieber selected Chad Vogele, a car supervisor, to conduct the investigation.63

Vogele sustained both charges. He viewed the video and determined Complainant

should have stopped closer to the tracks than he did. He agreed with Braun’s

version of the events about Gourneau’s demeanor and behavior. Vogele also stated

that he credited Braun over Gourneau.64 At the hearing, Vogele learned for the first

time that the “discourteous” allegation was added after the fact.65 Vogele confirmed

at the hearing that the “discourteous” charge should have been made immediately.66

After sustaining both charges, Vogele initially recommended a 30-day

suspension, with a 12-month probationary period.67 After conferring with Bieber,

who wanted a more severe penalty for Complainant, Vogele recommended a 36month probationary period, with a 30-day suspension.68

Kathleen Maglisceau, one of the PEPA officials who testified, explained that

PEPA reviewed dismissals as a matter of course, and otherwise was available for

questions about discipline generally.69 In this instance, because Vogele

recommended discipline outside the standard policy of a suspension with a 12month probationary period, PEPA was involved.70 An e-mail exchange followed

between Vogele, Bieber, and the PEPA staff, which the ALJ details extensively in

the D. & O. The PEPA staff explicitly noted Gourneau’s clean record and stated that

“I am not seeing something so egregious” as to deviate from the standard 12-month

probation.71 At the hearing, Bieber minimized his role in disciplining Complainant

Id.

Id. at 8.

Id.

Id. at 9.

Id.

Id.; Tr. at 264, 332.

The probationary period means that if an employee commits other level S violations

during the period, there is the potential for dismissal. At the hearing, Vogele testified that

he reached out to PEPA because when he attempted to submit the selected discipline to the

system, it was rejected. Tr. at 265. He testified that he and Bieber structured the discipline

that way because of the two offenses in the same incident—failure to stop and

discourteousness. Id. at 264.

D. & O. at 9.

and was vague about his disciplinary recommendation.72 However, the record shows

that Bieber advocated for a 36-month probationary period and spoke with

Maglisceau about it.73 BNSF imposed an actual 20-day suspension in addition to a

“record” suspension, a Level S discipline entry in his personnel record for a severe

safety violation, and a 12-month probationary period.74

B. January 3, 2020 Incident

On January 3, 2020, Complainant was working with three other men in the

yard. Williams, his colleague on September 3, 2019, operated as lead man, while

two others worked on the east end, and Gourneau worked on the west end.75 A train

approached from the west end of the yard, and Complainant’s two colleagues were

blocked by another train. Complainant began his portion of the train inspection,

starting on the north side and working eastward. When he finished that portion, he

called in an “OK train,” crossed the track at the east end, and began working from

the other end, moving west. Complainant’s colleagues were able to take over once

they could clear the tracks. Williams told Complainant that once he had finished his

share of the train and he could cross safely, he could stop work for the night.76

While Complainant was working that night, Bieber was in the office,

operating the surveillance cameras. According to Bieber, the cameras are used for

evaluating carmen and for discipline.77 BNSF is required to test the cameras

regularly.78 The video in the record shows an ATV crossing tracks on the west end of

the yard. The video zooms in on the driver approximately halfway through. The

video starts at 10:11 pm, shows the ATV stopping at 10:13:35, and zooms in on the

driver at 10:13:50.79 The driver stops to complete a task, and proceeds to cross

several tracks that are close together without stopping.80

Id. at 11.

Id. at 9; Tr. at 394.

D. & O. at 10.

Id. at 12.

Id.

Id. at 12-13.

Id. at 12.

Id. at 13.

The ALJ found that it was impossible to tell who drove the ATV.81 Bieber

believed it was Gourneau based on radio transmissions.82 Gourneau said he “does

not think it was him.”83 While the ALJ generally found Gourneau credible, the ALJ

found this one aspect of his testimony evasive.84 However, the ALJ found that

whether Gourneau was driving the ATV was not critical to his conclusions.85

Two days later, Complainant’s union representative informed him that he

was being pulled out of service for another level S violation of Rule 12.1.2.86 Bieber

initiated the investigation into this incident.87 As this was a second level S within

the probationary period, Complainant’s employment could be terminated. A second

investigation was held, with Vogele serving as the investigator, once again at

Bieber’s request.88 Bieber was the primary witness for BNSF at the investigation

hearing, described the alleged conduct, advocated for finding it a violation, and

recommended termination of Gourneau’s employment.89 Vogele sustained the

charge and the PEPA committee reviewed the recommended termination.90

PEPA Committee member Stephanie Detlefsen reviewed the proposal to

terminate Complainant’s employment. She relied entirely on the hearing record and

engaged in no independent review or fact-finding.91 Detlefsen testified that her

review showed that Complainant had engaged in the same misconduct before and

had expressed no remorse.92 After Detlefsen completed her review, other managers

reviewed the proposed termination in accordance with BNSF policy.93 No one who

reviewed the proposed termination relied on information outside of the record

Vogele and Bieber created.94

Id.

Id. at 18.

Id.

Id. at 12.

Id. at 12-13.

Id. at 13.

Id.

Id. at 13-14.

Id. at 13.

Id.

Id. at 13-14.

Id.

BNSF offered the disciplinary records of several other BNSF employees as

comparator evidence. Those records show that many employees with two level S

violations within a 12-month period are terminated, but offered no details on

whether the failure to stop violations involved foul areas or an employee stopping

too far away from the tracks.95 Complainant offered the testimony of several

colleagues, each of whom testified that they had made the same choices of where to

stop as Gourneau and not been disciplined for failing to stop.96 Bieber denied seeing

that conduct. Steve Simons, a former yard lead man, stated at the hearing that he

watched the video of the September 3, 2019 incident and that the “very next day,

we’re told exactly—we’re supposed to do exactly what Dale did.”97 Some of those

colleagues admitted to driving right through the tracks, making no attempt to stop

whatsoever, and not being disciplined for it.98

2. Procedural History

On February 25, 2020, Complainant filed a whistleblower complaint with

OSHA.99 On January 25, 2021, OSHA dismissed Complainant’s complaint.100

Complainant requested a hearing with an ALJ, and a hearing was held on

November 16-17, 2021.101

On May 4, 2023, the ALJ issued a D. & O. in favor of Complainant. The ALJ

made extensive credibility findings in the D. & O., which are important to many of

his factual conclusions. Specifically, the ALJ found that Gourneau was credible,

except with his evasiveness as to who was driving the ATV in the January 3, 2020

video;102 Braun was less than credible, especially when it came to the testimony

about the discourteous charge;103 Bieber was not credible for broad parts of his

testimony, including his explanation for why he followed up with Braun to ask

whether Gourneau was discourteous and his testimony that he had never seen

RX-14.

D. & O. at 15-16.

Id. at 15.

Id. at 16.

Id. at 2; RX-31.

100

D. & O. at 2.

101

Id.

102

Id. at 19.

103

Id.

someone stop where Gourneau did on September 3, 2019;104 and Vogele and

members of the PEPA committee were credible.105

The ALJ found that Complainant engaged in the several instances of

protected activity. The ALJ stated, “[i]n general, Gourneau was known as a safety

advocate [ . . . ] As far as specific protected activities, he was a member of the safety

committee into the fall of 2019; at the committee’s monthly meetings and from day

to day as well, Gourneau would raise safety concerns to Bieber and other managers,

such as washboarding and potholes in the yard and missing blue flags at certain

sections of track.”106 The washboarding, potholes, and missing blue flags were

reported on September 3, 2019.107 The ALJ also found that Gourneau engaged in

three more instances of protected activity: (1) Complainant’s report to Bieber

regarding management’s failure to submit eligible reports as part of the

administration of BNSF’s Broken Wheel Club; (2) Complainant’s three bad order

reports of stencil violations to his supervisor; and (3) Complainant’s report of three

broken running boards.108

The ALJ found that Respondent engaged in adverse employment actions

against Complainant when: (1) it imposed charges, a suspension, and a 12-month

probationary period on Complainant in October 2019, and (2) it terminated

Complainant’s employment on January 22, 2020.109

The ALJ found that Complainant’s protected activity was a contributing

factor to the adverse employment actions that he suffered based on the “cat’s paw”

theory of liability, temporal proximity, pretext, BNSF’s inconsistent application of

its policies, BNSF’s antagonism or hostility toward Complainant, Respondent’s

change in attitude toward Complainant, and the falsity of BNSF’s explanation for

the adverse actions taken.110 The ALJ further found that BNSF did not prove that it

would have taken the same adverse action against Complainant absent his

protected activity because Respondent did not prove that it applied Rule S-12.1.2

“consistently for the same conduct.”111 Supporting this finding was evidence that

multiple carmen testified that they drove ATVs in the same manner as

Complainant without punishment and continued to do so after Complainant’s

104

Id. at 19-20.

105

Id. at 20.

106

Id. at 24.

107

Id. at 4.

108

Id. at 4-6, 24.

109

Id. at 25.

110

Id. at 26-33.

111

Id. at 34.

punishment “even with video surveillance available to management to find and

charge Level S violations.”112

The ALJ ordered the following remedies: (1) reinstatement;113 (2) $318,979.98

in back pay wages and $39,679.74 in prejudgment interest,114 with backpay and

post-judgment interest to continue to accrue through the date of payment;115

(3) $70,000 in compensatory damages;116 (4) $150,000 in punitive damages;117

(5) reasonable attorney’s fees and costs;118 and (6) ordered BNSF to seal all

documents relating to the incidents, charges, and adverse actions addressed in the

D. & O. and redact any such references, and to post the D. & O. for a minimum of 60

days in a place and manner that is usual and customary for employees to gather

and review employment related information.119

Respondent filed a timely appeal with the Board.

JURISDICTION AND STANDARD OF REVIEW

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

decisions under the FRSA.120 The ARB will affirm the ALJ’s factual findings if they

are supported by substantial evidence, but reviews conclusions of law de novo.121

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”122 The Board has held that an ALJ’s factual

findings will be upheld where supported by substantial evidence even if we “would

112

Id.

113

Id. at 34-35.

The ALJ selected the interest rate of 7 percent compounded daily. Id. at 35.

Respondent did not appeal the ALJ’s decision with respect to the interest rate.

114

Id. at 35-36. The ALJ stated that “[b]ackpay and interest shall continue to accrue, in

amounts consistent with these calculations, through the date of payment.” Id. at 36.

115

116

Id. at 36-39.

117

Id. at 39-45.

118

Id. at 45.

119

Id. at 45-46.

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

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6,

2020); see 29 C.F.R. § 1982.110(a).

120

Klinger v. BNSF Ry. Co. (Klinger II), ARB No. 2023-0003, ALJ No. 2016-FRS-00062,

slip op. at 5 (ARB July 23, 2024) (citation omitted).

121

Carter v. BNSF Railway Co., ARB No. 2021-0003, ALJ No. 2013-FRS-00082, slip op.

at 6 (ARB Sept. 26, 2022) (citation omitted).

122

justifiably have made a different choice had the matter been before us de novo.”123

The ARB reviews an ALJ’s procedural and evidentiary rulings for abuse of

discretion.124 In addition, because an ALJ observes all witnesses throughout a

hearing the Board generally defers to an ALJ’s credibility findings “unless they are

‘inherently incredible or patently unreasonable.”’125

DISCUSSION

On appeal, BNSF challenges the ALJ’s findings on protected activity,

contributing factor causation, its affirmative defense, and damages.126 For the

reasons that follow, we affirm the ALJ’s D. & O.

1. FRSA Whistleblower Elements

The FRSA provides that railroad carriers “may not discharge, demote,

suspend, reprimand, or in any other way discriminate against an employee if such

discrimination is due, in whole or in part” to any FRSA-protected activities.127

123

Carter, ARB No. 2021-0003, slip op. at 6-7 (citation omitted).

124

Id. at 7 (citation omitted).

Klinger II, ARB No. 2023-0003, slip op. at 5 (citing Mizusawa v. United Parcel Serv.,

ARB No. 2011-0009, ALJ No. 2010-AIR-00011, slip op. at 3 (ARB June 15, 2012), aff’d No.

12-9563 (10th Cir. 2013)).

125

Respondent also raises two procedural issues. First, Respondent contends that the

ALJ impermissibly relied on hearsay evidence regarding the ALJ’s finding that Bieber

targeted Complainant. At issue is Steve Simons’ testimony that Bieber told Will Leach—

who was not called to testify—that “We got Dale. And we’re going to get him fired.” The

applicable regulations specifically state that the formal rules of evidence will not apply and

allow the ALJ to admit relevant evidence. 29 C.F.R. § 1982.107(d). In any case, Bieber, the

original speaker, here testified and disclaimed the testimony, which offsets the concern that

the statement would be taken as true without testimony—albeit testimony that the ALJ did

not find credible here—arguing against the veracity of the statement. Additionally, the ALJ

relied on other evidence for finding that there was antagonism and hostility toward

Gourneau’s protected activity. Thus, we do not disturb the ALJ’s finding.

126

Second, Respondent contends that Complainant failed to exhaust his administrative

remedies with regards to the Broken Wheel Club because he did not explicitly refer to the

Broken Wheel Club in his OSHA complaint. However, the ALJ explained that the hearing

was a de novo proceeding. D. & O. at 22. Exhaustion requires a complainant to give notice

of all claims of discrimination. Stuart v. Gen. Motors Corp., 217 F.3d 621, 630 (8th Cir.

2000) (citation omitted) (discussing Title VII cases). We conclude that Complainant

properly raised his report about Respondent’s failure to properly administer the Broken

Wheel Club program as protected activity before the ALJ. Thus, we are not persuaded by

Respondent’s argument.

127

49 U.S.C. § 20109(a).

FRSA cases are governed by the burdens of proof set forth in the Wendell H. Ford

Aviation Investment and Reform Act for the 21st Century (AIR21).128 Thus, to

prevail, a complainant must show by a preponderance of the evidence that he

engaged in protected activity, was subjected to an unfavorable personnel action, and

that protected activity was a contributing factor in the unfavorable personnel

action.129 The employer may avoid liability by demonstrating, by clear and

convincing evidence, that it would have taken the same action against the

complainant in the absence of the protected activity.130

A. Complainant Engaged in Protected Activity

The FRSA prohibits an employer from discriminating against an employee

because the employee reported a “hazardous safety or security condition.”131

A complainant’s report of a hazardous condition must be made in good faith.

A good-faith report is one that the complainant subjectively believes constitutes a

hazardous safety or security condition.132 The Eighth Circuit133 has rejected the

notion that a good-faith report of a hazardous safety or security condition must be

objectively reasonable.134

The ALJ found that Complainant engaged in several instances of protected

activity under 49 U.S.C. § 20109 (b)(1)(A) by making good faith reports of

“hazardous safety or security conditions” when he: (1) challenged Respondent’s

failure to properly administer the Broken Wheel Club; (2) reported three bad orders

for illegible stencils on September 3, 2019; (3) reported three broken running boards

128

See id. § 20109(d) (citing id. § 42121(b)).

129

29 C.F.R. § 1982.109(a).

130

Id. § 1982.109(b).

131

49 U.S.C. § 20109(b)(1)(a).

Monohon v. BNSF Ry. Co., 17 F.4th 773, 780 (8th Cir. 2021) (“As an initial matter,

the statute requires only that the employee report ‘in good faith,’ meaning ‘honestly and

frankly, without any intent to defraud.’ The statute’s plain language thus does not require

that the report be objectively reasonable, and we decline to read a reasonableness

requirement into the ‘reporting, in good faith provision.”) (citation omitted).

132

Because the events giving rise to this complaint occurred in North Dakota, the

Eighth Circuit may have jurisdiction over any appeal of this decision. See 29 C.F.R. §

1982.112(a).

133

Monohon, 17 F.4th at 780; see also Ziparo v. CSX Transp., Inc., 15 F.4th 153, 159 (2d

Cir. 2021) (“The ordinary meaning of the plain text of § 20109(b)(1)(A), then, would entail

that there is no requirement that, in order to be protected, a report must be reasonably

believed to concern a safety condition, so long as it is made in the good-faith belief that it

does.”) (emphasis in original).

134

on September 3, 2019; and (4) reported washboard conditions, potholes in the yard,

and missing blue flags at certain sections of the track throughout the fall of 2019.135

Respondent objects to the ALJ’s finding that Complainant’s challenge about

the Broken Wheel Club, reports of illegible stencils, and report of broken running

boards are protected as reports of “hazardous safety or security conditions.”136

Specifically, Respondent contends that the ALJ erred by extending protection to

reports of conditions that are only “potentially” hazardous.137 Respondent argues

that the word “hazardous” in the phrase “hazardous safety or security condition,”

means a significant and immediate safety hazard, as opposed to something that is

potentially hazardous or might become hazardous in the future.

The Eighth Circuit has explicitly recognized that a disclosed safety condition

need not be immediately hazardous or actually cause harm to be protected. 138

In Monohon v. BNSF, a railway worker complained that having to wear a seatbelt

in a truck that operates on pavement and railroad tracks was dangerous because it

could prevent him from being able to quickly exit the truck if a train approached.139

A jury found that Monohon’s complaint demonstrated a hazardous safety condition

even though no harm actually came to Monohon.140 The Eighth Circuit affirmed the

jury’s finding, emphasizing that whether something is a hazardous safety condition

is a factual issue, and noted that the “statute does not require that an accident or

injury have occurred.”141 Thus, in accordance with the Eighth Circuit and the

statutory language, we conclude that to establish a good faith report of a “hazardous

135

D. & O. at 24.

Resp. Br. at 13, 15-19. Respondent also challenges the ALJ’s statement that

“Gourneau was known as a safety advocate,” and argues that being a safety advocate is not

protected activity. Id. at 19. We do not construe the ALJ’s statement as finding specific

protected activity, but instead as context supporting his findings of protected activity.

Furthermore, the ALJ found numerous other instances of protected activity, and in at least

two instances—Gourneau’s reporting of washboard conditions and potholes—Respondent

does not even challenge the ALJ’s findings of protected activity under the FRSA. Thus, we

find that substantial evidence supports the ALJ’s finding of protected activity in this case,

and we affirm the ALJ’s determination.

136

137

Respondent’s Brief in Support of its Petition for Review (Resp. Br.) at 16.

Monohon, 17 F.4th at 783 (“The statute does not require that an accident or injury

have occurred.”).

138

139

Id. at 776-78.

140

Id. at 783.

Id.; see also Kuduk v. BNSF Ry. Co., 768 F.3d 786, 790 (8th Cir. 2014) (“the [ ]

records would permit a reasonable jury to find that BNSF understood Kuduk’s complaint

regarding the handle to be, at bottom, a safety report.”).

141

safety or security condition,” Complainant need not prove that the reported safety

conditions be immediately hazardous or have actually caused harm.

a. Complainant’s Broken Wheel Club Complaints were Protected Activity

The ALJ found that Complainant’s Broken Wheel Club complaint was

protected activity because “[f]inding and reporting broken wheels prevents

derailments, as Gourneau testified, and defective wheels are expressly a target of

the minimum Federal safety standards at 49 C.F.R. Part 215.”142 To support his

conclusions, the ALJ relied in part on Ziparo, wherein the Second Circuit found that

an employee who was feeling stressed because of pressure by his supervisors to

falsify records (unrelated to safety themselves), reported a hazardous safety

condition because it affected his ability to perform his safety-related job.143

Here, Complainant reported that managers were not administering a

program designed to prevent derailment. In his testimony, he explained that

carmen were reporting defects and that managers were essentially killing those

reports in the yard, even though the wheel itself may have been fixed.144 A wheel

defect, which could cause a derailment, is clearly hazardous. BNSF argues, in part,

that Gourneau’s complaint was about payments or administration of the program,

not the broken wheels. But Gourneau reported a failure to adhere to an internal

program designed to prevent hazardous safety conditions. The fact that some

carmen ended up receiving rewards under the program shows that there were in

fact hazardous conditions corrected under the program. The program’s existence

also demonstrates the urgency of discovering and correcting wheel defects to

Respondent in preventing derailments and other hazardous conditions that could

result from unreported wheel defects.

The testimony in the record provides evidence that there were safety

problems associated with broken wheels and that these problems were significant

enough for BNSF to create incentives for employees to report them. Based on the

foregoing, we conclude that substantial evidence supports the ALJ’s finding that

Complainant’s Broken Wheel Club complaints were protected activity.

142

D. & O. at 24.

Id. at 23-24; see also Ziparo, 15 F.4th at 156-57, 163-64, 165 (Ziparo’s supervisors’

“demands were creating an unsafe environment by causing Ziparo . . . to be stressed and

distracted and therefore unable to focus properly on [his] work.”).

143

144

D. & O. at 4.

b. Complainant’s Report of Missing Stencils was Protected Activity

The ALJ found that Complainant engaged in protected activity when he

reported illegible stencils.145 The ALJ observed that FRA rules, which state

explicitly that they are intended to provide “minimum Federal safety standards for

railroad freight cars,” require railcars to have “clearly legible letters and numbers”

stenciled “on each side of the car body.”146 Gourneau explained at the hearing that

stencils are required on each railcar to ensure that when a railcar is inspected, it

can be easily identified if an issue or defect is found.147 Indeed, Gourneau’s very first

task when inspecting a train was to write down the car numbers for each car that

needed further scrutiny.148 He also explained that the FRA even requires reporting

defects, like stencil violations, on non-inspection trains, like the trains reported by

Gourneau on September 3, 2019.149 Consequently, a reasonable factfinder could

determine that Gourneau believed, in good faith, that the illegible stencils

presented a hazardous safety condition because a car might not be properly

inspected or a hazard on a car might not be properly identified because the

145

Id. at 24.

4 C.F.R. § 215.301 (“The railroad or private car owner reporting mark, the car

number, and built date shall be stenciled, or otherwise displayed, in clearly legible letters

and numbers not less than seven inches high, except those of the built date which shall not

be less than one inch high (a) On each side of each railroad freight car body; and (b) In the

case of a tank car, in any location that is visible to a person walking at track level beside

the car . . .”); see also id. § 215.303 (“restricted railroad freight car[s] . . . shall be stenciled,

or marked—(1) in clearly legible letters . . .”), § 215.305 (“Maintenance-of-way equipment . .

. shall be stenciled, or marked—(1) In clearly legible letters . . .”).

146

Tr. at 28 (Gourneau explaining that during train inspections, he had to identify the

number on the railcar so that the carman could return to those cars later for a more

thorough inspection). BNSF contends that a violation of an FRA rule, like the stenciling

rule, does not necessarily or automatically create a hazardous safety or security condition.

Resp. Br. at 17. Indeed, the ALJ recognized as much. D. & O. at 24 (stating that “one could

imagine reports of [FRA] rule violations that do not implicate safety” and therefore are not

protected by Section 2019(b)(1)(A)). Even so, for the reasons above, the FRA rule violation

in this instance also poses a hazardous safety condition. Additionally, the fact that

Gourneau understood that the stencils on the identified rail cars violated the FRA rules,

which on their face state that they provide “minimum Federal safety standards,” supports

the ALJ’s conclusion that Gourneau believed, in good faith, that the stencils constituted a

hazardous safety condition. Monohon, 17 F.4th at 780 (requiring a plaintiff to show only

that he believed “in good faith” that a hazardous safety condition existed); see also D. & O.

at 23-24 (“Gourneau clearly understood that the FRA rules ensure safety by identifying and

outlawing conditions that are or may become hazardous, and in turn that reporting

conditions that were in violation of the FRA rules was in fact reporting hazardous

conditions, or potentially hazardous conditions, so that they could be repaired.”).

147

148

Tr. at 28.

149

Id. at 66-67, 131-33.

inspector could not determine which car had the defect. Thus, we affirm the ALJ’s

finding that Complainant’s report of illegible stencils was protected activity.

c. Complainant’s Report of Broken Running Boards was Protected Activity

The ALJ found that Complainant’s report of broken running boards150 was

protected activity. The ALJ’s finding is supported by substantial evidence.

Broken running boards present a clear safety risk—running boards are designed for

people to stand on, and there is a risk of physical harm from a fall if one is broken.

Gourneau also stated at the hearing that a broken running board is an “FRA

Federal Safety Compliance Defect.”151 Consequently, a reasonable factfinder could

determine that Gourneau believed, in good faith, that the broken running boards

presented a hazardous safety condition because of the risk of injury to railway

workers and others. Thus, we affirm the ALJ’s finding that Complainant’s report of

broken running boards was protected activity.

Therefore, we find that each of the ALJ’s findings of protected activity are

supported by substantial evidence and affirm the ALJ’s conclusion that

Complainant engaged in protected activity.

B. Complainant was Subjected to an Adverse Action

A complainant must establish that they suffered an adverse action.152

Pursuant to the FRSA, an employer “may not discharge, demote, suspend,

reprimand, or in any other way discriminate against an employee” because that

employee engaged in FRSA-protected activity.153 The regulations elaborate that an

employer cannot “discharge, demote, suspend, reprimand, or in any other way

retaliate against, including but not limited to intimidating, threatening,

restraining, coercing, blacklisting, or disciplining” an employee because they engage

in FRSA-protected activity.154

The ALJ found that Complainant’s dismissal was an adverse action, as were

the “charges, suspension, and 12-month probationary period imposed in October

2019, prompted by the September 3, 2019 track crossing incident.”155

150

D. & O. at 24.

151

Tr. at 67.

152

29 C.F.R. § 1982.109(a).

153

49 U.S.C. § 20109(a).

154

29 C.F.R. § 1982.102(b)(1), (b)(2)(i).

155

D. & O. at 25.

BNSF does not challenge the ALJ’s findings that Complainant’s dismissal,

suspension, and 12-month probationary period were adverse actions.156 The record

substantially supports the ALJ’s factual findings that Respondent suspended

Complainant for 20 days, subjected Complainant to a 12-month probationary

period, and terminated Complainant from his employment on January 22, 2020.

The ALJ’s findings on adverse action are affirmed.

C. Complainant’s Protected Activity was a Contributing Factor in his Adverse

Action

Complainant must establish by a preponderance of the evidence that his

protected activities were a contributing factor to the adverse actions taken against

him.157 A “contributing factor” includes “any factor, which alone or in connection

with other factors, tends to affect in any way the outcome of the [adverse]

decision.”158 This element can be established by either direct or circumstantial

evidence.159 Temporal proximity between the protected activity and the adverse

action is probative for contributing factor, but is not determinative.160

Since the D. & O. was issued in 2023, there have been important

developments in the law relating to contributing factor. The ALJ applied the

relevant Eighth Circuit case law requiring that the complainant establish that the

employer intended to retaliate because of the protected activity, which was outlined

in Kuduk v. BNSF Railway.161 Whether an intent to retaliate is required as part of

contributing factor causation under FRSA and other whistleblower statutes is an

issue that has been extensively litigated before the ARB and in the federal courts.162

The Supreme Court, in Murray v. UBS, recently provided clarity on the intent

BNSF contends that the charging letter for the September 3, 2019 incident was not

a separate adverse action. Resp. Br. at 20. However, because we affirm the ALJ’s adverse

action findings on other grounds, we need not reach this issue.

156

157

29 C.F.R. § 1982.109(a).

Carter v. BNSF Ry. Co., ARB No. 2021-0035, ALJ No. 2013-FRS-00082, slip op. at

8 (ARB Sept. 26, 2022) (quoting Gunderson v. BNSF Ry., 850 F.3d 962, 969 (8th Cir. 2017)).

158

159

Id. (citation omitted).

Id. (citation omitted); see also Tyler v. Univ. of Ark. Bd. of Trustees, 628 F.3d 980,

986 (8th Cir. 2011) (“As more time passes between the protected conduct and the retaliatory

act, the inference of retaliation becomes weaker and requires stronger alternate evidence of

causation.”) (citation omitted).

160

161

Kuduk, 768 F.3d at 792.

See e.g., id. at 791; Murray v. UBS Secs., LLC, 601 U.S. 23, 33 (2024) (stating that

while a SOX whistleblower “must prove that his protected activity was a contributing factor

in the unfavorable personnel action, he need not also prove that his employer acted with

‘retaliatory intent.’”).

162

question. In clear terms, the Court held that while a complainant must prove that

the protected activity was a contributing factor, he does not need to additionally

prove that there was retaliatory intent or animus.163 Murray is a SOX case, but

SOX, like FRSA, incorporates the burden-shifting standard laid out in AIR21.164

Thus, the standard we apply is the one articulated in Murray and we do not require

a complainant to show retaliatory intent in proving a contributing factor.165

i. Cat’s Paw

The ALJ, applying Kuduk, found BNSF liable on a cat’s paw theory of

liability. The cat’s paw theory was laid out in Staub v. Proctor Hospital, wherein the

Supreme Court found that employers can be held liable for employment

discrimination based on discriminatory animus of an employee who influenced, but

did not make, the final employment decision.166 Cat’s paw liability as described in

Staub requires that the supervisor intends to cause an adverse employment

action.167 If the supervisor’s action is a proximate cause of the employer’s adverse

action, then the employer is liable.168

Respondent challenges the ALJ’s cat’s paw analysis, arguing a lack of intent

and that the ALJ applied a diminished standard that undermines existing case law.

Respondent also emphasizes the role of Vogele, his disciplinary investigations, and

PEPA’s review, highlighting their independence and essentially arguing, as the ALJ

described it, that they serve as “firewalls between those with knowledge of and

animus toward Gourneau’s protected activity, and the company’s termination of his

employment.”169 A thorough review of the record, however, supports the ALJ’s

factual findings. The ALJ applied a straightforward cat’s paw analysis, and there is

no reason to disturb his reasoning.

163

Murray, 601 U.S. at 33.

164

Id. at 27-28; see also 18 U.S.C. § 1514A; 49 U.S.C. §§ 20109(d), 42121(b).

Dick v. USAA, ARB No. 2022-0063, ALJ No. 2018-STA-00054, slip op. at 14 n.98

(ARB Apr. 16, 2024) (citing Murray, 601 U.S. 23) (a whistleblower complainant “is not

required to make some further showing that his employer acted with ‘retaliatory intent’”).

165

166

562 U.S. 411, 413, 422 (2011).

Id. at 422. We note that Staub is a USERRA case, which requires different burdens

of proof. FRSA cases have a lower contributing factor causation standard as compared to

the more stringent motivating factor required in a USERRA or Title VII case.

167

Id. (if the supervisor performs an act “that is intended by the supervisor to cause an

adverse employment action, and if that act is a proximate cause of the ultimate

employment action, then the employer is liable . . .”).

168

169

Resp. Br. at 24-27; D. & O. at 31.

The ALJ’s cat’s paw analysis focuses on Bieber: “Bieber’s animus contributed

to his actions to influence Braun, then Vogele, and then the reviewers in the PEPA

office in the process to discipline.”170 Underlying this analysis, the ALJ noted

“evidence that managers in Mandan became frustrated with Gourneau, a long-time,

knowledgeable, and effective carman, because of his safety advocacy overall and

specific actions he took.”171 Further, the ALJ found that Respondent, Bieber most

specifically, had “animus and impermissible motive,” to take adverse action against

Complainant with protected activity as a contributing factor.172 Bieber, influenced

the charges brought and the final discipline from both formal investigations against

Gourneau.173

Respondent contends that, by applying Staub, the ALJ watered down the

showing required to establish that the final decisionmaker served as a mere cat’s

paw. Staub is a USERRA case, and that statute requires a motivating factor to find

liability.174 The ALJ noted that the standard in FRSA cases is the lower

contributing factor standard and aptly adapted Staub to account for the lower

standard, and his analysis is sound.175 The ALJ clearly catalogued how Bieber’s

actions led to Gourneau’s termination—Bieber’s choice of investigator, Bieber’s

prompting to add a discourteous charge, Bieber’s push for a more severe penalty for

the September 3, 2019 incident, and, ultimately, Bieber’s decision to charge

Gourneau with another violation for the January 3, 2020 incident despite dubious

camera and audio evidence.

Respondent argues that its independent PEPA committee establishes that

the termination was proper, but the ALJ made factual findings that undermine

their arguments. Specifically, the ALJ found that while PEPA committee members

were unaware of Gourneau’s protected activity, Bieber’s actions nonetheless led to

170

D. & O. at 31.

171

Id. at 29.

172

Id. at 30-31.

173

Id. at 31.

174

Id. at 24.

See Rudolph v. Nat’l R.R. Passenger Corp. (Amtrak), ARB No. 2011-0037, ALJ No.

2009-FRS-00015, slip op. at 17-18 (ARB Mar. 29, 2013) (finding that, under the cat’s paw

theory “if a supervisor performs an act motivated by discriminatory animus that is intended

by the supervisor to cause an adverse employment action, and if that act is a proximate

cause of the ultimate employment action taken, then the employer will be held liable.”

Where a complainant must establish that his protected activity was a contributing factor to

the adverse action, proof of motivation is not required and a “complainant need not prove

that the decision-maker responsible for the adverse action knew of the protected activity if

it can be established that those advising the decision-maker knew, regardless of their

motives.”).

175

Gourneau’s job loss because Bieber intended to retaliate and influenced the

ultimate decision to terminate. Contrary to Respondent’s assertions, PEPA was not

isolated. Bieber spoke directly with PEPA about the appropriate discipline for the

September 3, 2019 incident and argued for more discipline. PEPA’s purported

independence was simply not enough to change the outcome—PEPA still relied on

Bieber’s initial charges of misconduct and investigations run by Bieber’s chosen

investigator. The ALJ’s reliance on and application of the cat’s paw theory was

sound, and we affirm.

ii. Temporal Proximity and Pretext

The ALJ found that temporal proximity and pretext also supported the

conclusion that Complainant’s protected activity was a contributing factor to his

suspension and termination, particularly in light of Complainant’s clean track

record, reputation, and history as a “tenacious safety advocate.”176 Specifically, the

ALJ found that there was close temporal proximity between both Gourneau’s report

about the Broken Wheel Club in August 2019 and bad order reports on September

3, 2019, with Braun’s issuance of the charge against Gourneau for his track crossing

at the end of the shift on September 3rd.177 The ALJ also found that this temporal

proximity carried over to the January 3, 2020 incident and January 22, 2020

termination because only a few weeks separated the end of Gourneau’s suspension

following the September 3, 2019 incident and the investigation of the January

incident that led to his termination.178 The ALJ further found that Respondent’s

actions and explanations were pretextual.179

Respondent contends that the ALJ’s findings on temporal proximity and

pretext are flawed because the ALJ erred in conflating two disciplinary events.180

Specifically, Respondent contends that the ALJ’s finding that the September 3, 2019

incident is temporally proximate to the January 3, 2020 incident and January 22

termination is broken by Gourneau’s intervening misconduct when Gourneau drove

through a crossing without stopping for a second time.181

First, substantial evidence supports the ALJ’s finding of temporal proximity

between Complainant’s protected activity and Respondent’s decision to discipline

and then terminate his employment. Gourneau was initially disciplined within a

176

D. & O. at 28.

177

Id.

178

Id.

179

Id. at 28-29.

180

Resp. Br. at 28.

181

Id.

few weeks of reporting protected hazardous safety concerns. And, Complainant’s

ultimate termination occurred within weeks of serving the first suspension, and

only a few months after the initial disciplinary action was taken.

Second, the record supports the ALJ’s finding that Respondent’s reasons for

taking adverse action against Complainant were pretextual. The evidence

demonstrated that it was accepted practice among carmen to stop some distance

ahead of the yard track crossing as Gourneau did in this case, there was no evidence

of a consensus among BNSF management as to what the correct stopping distance

was, and the rule itself did not provide a stopping distance.182 We agree with the

ALJ that the facts support an inference that the reasons to discipline and later

terminate Gourneau were pretextual.

For all the reasons discussed above, we find the ALJ’s factual findings

supported by substantial evidence and his analysis consistent with the law.

Accordingly, we affirm the ALJ’s finding that Gourneau established that his

protected activity was a contributing factor to his termination.183

D. Respondent Failed to Prove its Affirmative Defense

If a complainant meets his burden of proof to establish that his protected

activity contributed to adverse employment action, an employer may avoid liability

by proving by clear and convincing evidence that it would have taken the same

adverse action in the absence of the protected activity.184 The clear and convincing

standard is “a very high burden of proof.”185 An employer satisfies this standard by

182

D. & O. at 32.

Respondent also argues that the ALJ erred in criticizing its policies for two reasons.

First, Respondent contends that the ALJ’s finding that Respondent inconsistently applied

its policies is speculative and flawed. Resp. Br. at 29. However, after the September 3

incident, Bieber held a safety meeting to discuss properly stopping before the tracks, and

several carmen present believed that Bieber was authorizing them to do what Gourneau

had been disciplined for. We find the record substantially supports the ALJ’s finding.

Second, Respondent contends that the ALJ acted as a “super-personnel” department in

criticizing BNSF’s policies. However, while the ALJ is critical of BNSF’s policies, the ALJ’s

contributing factor analysis did not hinge on BNSF’s policy decisions. Thus, we are not

persuaded by Respondent’s argument in this regard.

183

184

29 C.F.R. § 1982.109(b).

Raye v. Pan Am Rys., Inc., ARB No. 2014-0074, ALJ No. 2013-FRS-00084, slip op. at

5 (ARB Sept. 8, 2016), aff’d Pan Am Rys., Inc., v. U.S. Dep’t of Lab., 855 F.3d 29 (1st Cir.

2017) (quoting Brune v. Horizon Air Indus., Inc., ARB No. 2004-0037, ALJ No. 2002-AIR00008, slip op. at 14 (ARB Jan. 31, 2006) (stating that clear and convincing evidence is

“[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.”)

(citation omitted).

185

demonstrating that it is “highly probable” that it would have taken the same action

in the absence of protected activity.186 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.”187 In Murray, the Supreme Court stated that, “[t]he right way to

think about that kind of same-action causation analysis is to ‘change one thing at a

time and see if the outcome changes.’”188

The ALJ found that Respondent failed to meet its burden because the record

evidence provided by Respondent did not show that it would have terminated

Gourneau in the absence of his protected activity, and because Gourneau provided

testimony from other carmen who testified they engaged in the same conduct and

were not penalized.189 The ALJ noted that the comparator evidence provided by

Respondent was, in fact, not actually comparable because although it showed

several employees were disciplined for violations of Rule 12.1.2, none were

terminated for the same misconduct as Gourneau and in the same time period.190 He

further found that carmen continued to stop where Gourneau did without any

discipline, even after Gourneau was penalized, despite the presence of cameras in

the yard for supervisors to use to identify the same misconduct.191 Thus, he found

that Respondent failed to prove its affirmative defense.192

Respondent argues that it met its burden of proof to establish that it would

have terminated Complainant in the absence of protected activity because the two

Level S violations in short succession would have been grounds for dismissal

regardless. Respondent further argues that the comparators who testified in

support of Complainant about their discipline for violating Rule 12.1.2, are not

proper comparators due to the difference in the timing between offenses and

because some of them accepted a waiver.193 Respondent further argues that the ALJ

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

op. at 13 (ARB Jan. 22, 2020) (citing Palmer v. Canadian Nat’l Ry./Ill. C. R.R. Co., ARB

2016-0035, ALJ No. 2014-FRS-00154, slip op. at 52-53 (ARB Jan. 4, 2017) (reissued with

dissent Jan. 4, 2017)).

186

187

Id. at 13 (citation omitted).

188

Murray, 601 U.S. at 38 (quoting Bostock v. Clayton Cnty., 590 U. S. 644, 656 (2020)).

189

D. & O. at 34.

190

Id.

191

Id.

192

Id.

A waiver is when the employee accepts responsibility for the offense, and generally

is granted a lesser discipline. Id. at 17.

193

erred by faulting Respondent for failing to enforce “hypothetical rule violations of

which there is no evidence that Bieber and Braun” were aware.194

We find that the ALJ’s factual findings are supported by substantial evidence

in the record. Respondent’s comparator evidence does not even address carmen

receiving discipline for stopping before crossing a track as Gourneau did, which is at

the crux of the alleged misconduct. The record, in fact, leaves that question

unanswered. The testimony of the carmen at the hearing was that they routinely

stopped in the manner that Gourneau did without receiving discipline.

Furthermore, Bieber himself endorsed their choice of how and where to stop before

crossing a track in a safety meeting following Gourneau’s termination where he

advised carmen to proceed in a manner that they viewed as the same or similar to

the conduct for which Gourneau was disciplined.195

To bolster its position, Respondent cites case law that looks to “whether the

railroad consistently enforces the policies and rules at issue” as a factor in

determining whether an affirmative defense has been proven.196 Respondent asserts

that consistent enforcement is demonstrated by highlighting comparator evidence

that shows two Level S violations in twelve months regularly results in dismissal.

Respondent’s argument ignores the inconsistent enforcement of Rule 12.1.2—the

rule that Complainant is alleged to have violated resulting in each Level S

discipline. The inconsistent application of Rule 12.1.2 is at issue here.197

Applying the Murray standard, removing Complainant’s protected activity

likely does change something—whether he was penalized for violating Rule 12.1.2.

The employer’s burden in a FRSA case is to prove by clear and convincing evidence

that it would have taken the same action absent the protected activity. Here,

Respondent has failed to meet that heavy burden—the evidence provided is

insufficient to show that BNSF consistently enforced Rule 12.1.2 or that it ever

enforced it in the way it was used to terminate Complainant’s employment.

Therefore, we affirm the ALJ’s finding that BNSF did not meet its burden to prove

194

Respondent’s Reply Brief in Support of its Petition for Review at 11.

Whether management actually witnessed other carmen stopping where Gourneau

did, forming the basis for potential discipline, is less relevant given the ALJ’s finding that

Bieber explicitly told other carmen to make similar choices about where to stop.

195

196

Dafoe v. BNSF Ry. Co., 164 F. Supp. 3d 1101, 1115-16 (D. Minn. 2016).

We note this inconsistency not to criticize BNSF’s personnel policies, nor to sit as a

“super-personnel” department, but instead to highlight that BNSF cannot meet its burden

of proof in this case because the enforcement inconsistency itself is a sign of retaliation. See

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

(ARB May 19, 2020).

197

by clear and convincing evidence that it would have terminated Gourneau absent

his protected activity.

2. Damages

The regulations specify that when a complainant prevails under FRSA:

[T]he ARB will issue an order providing relief to

the complainant. The order will include, where

appropriate, affirmative action to abate the violation;

reinstatement with the same seniority status that

the employee would have had but for the retaliation; any

back pay with interest; and payment of compensatory

damages, including compensation for any special damages

sustained as a result of the retaliation, including litigation

costs, expert witness fees, and reasonable attorney fees.

Interest on back pay will be calculated using the interest

rate applicable to underpayment of taxes under 26 U.S.C.

6621 and will be compounded daily. The order will also

require the respondent to submit documentation to

the Social

Security

Administration or the Railroad

Retirement Board, as appropriate, allocating any back pay

award to the appropriate months or calendar quarters. The

order may also require the respondent to pay punitive

damages up to $250,000.[198]

The ALJ ordered the following remedies: (1) reinstatement;199

(2) $318,979.98 in back pay wages and $39,679.74 in prejudgment interest, with

backpay and interest to continue to accrue until payment;200 (3) $70,000 in

compensatory damages;201 (4) $150,000 in punitive damages;202 (5) reasonable

attorney’s fees and costs;203 and (6) Respondent must seal all documents relating to

the incidents, charges, and adverse actions addressed in the D. & O. and redact any

such references, and Respondent must also post the D. & O. for a minimum of 60

days in a place and manner that is usual and customary for employees to gather

198

29 C.F.R. § 1982.110(d).

199

Id. at 34-35.

200

Id. at 35-36.

201

Id. at 36-39.

202

Id. at 39-45.

203

Id. at 45.

and review employment related information.204 Respondent specifically challenges

reinstatement, back wages, and punitive damages.205 We affirm the ALJ.

A. Reinstatement

Respondent challenges the ALJ’s order of reinstatement, stating that the

parties have too much animus for reinstatement. While Gourneau stated at the

hearing that he would go back to BNSF, his statement was reluctant and his

briefing at the hearing included a request for front pay. The ALJ stated in his

decision that “I credit Gourneau’s own testimony over arguments in briefing about

front pay.”206 Nevertheless, the statute requires reinstatement.207 The ARB has

recognized very few exceptions. In Dale v. Step 1 Stairworks, Inc., the ARB stated

that, “reinstatement should not be denied merely because friction may continue to

exist between the complainant and the company or its employees. Nor should it be

denied because the employer may find it inconvenient to reinstate the former

employee.”208 Here, the ALJ ordered reinstatement, Gourneau does not argue for a

different outcome on appeal, and BNSF’s own manager, who worked to terminate

Gourneau, admitted that he was a “good carman.” There’s nothing in the record

that supports granting an exception to the reinstatement requirement.

Accordingly, we affirm the ALJ’s order that BNSF reinstate Gourneau.

B. Back Wages

Respondent contends that the ALJ erred because he failed to account for

Gourneau’s duty to mitigate damages. A wrongfully-discharged employee seeking

back pay has a duty to exercise reasonable diligence to mitigate his damages by

204

Id. at 45-46.

Although Respondent contends that the ALJ should vacate all damages, Respondent

does not explicitly challenge the ALJ’s award of compensatory damages. Compensatory

damages are authorized by the FRSA and are available for emotional pain and suffering,

mental anguish, embarrassment, and humiliation. 29 C.F.R. § 1982.109(d)(1); Petitt v. Delta

Airlines, Inc., ARB No. 2021-0014, ALJ No. 2018-AIR-00041, slip op. at 23 (ARB Mar. 29,

2022). The ALJ awarded $70,000 in compensatory damages for Gourneau’s emotional

distress, including the impact on his relationships with family; for his financial distress,

including selling personal belongings; and because Gourneau began taking medication to

help manage depression and anxiety from losing his job. The record substantially supports

the ALJ’s findings. Thus, we affirm the ALJ’s award of compensatory damages.

205

206

D. & O. at 35.

49 U.S.C. § 20109(e)(2) (“Relief . . . shall include . . . reinstatement.”); see also 29

C.F.R. § 1982.110(d) (“The order will include . . . reinstatement.”).

207

Dale v. Step 1 Stairworks, Inc., ARB No. 2004-0003, ALJ No. 2002-STA-00003, slip

op. at 5 (ARB Mar. 31, 2005).

208

searching for substantially equivalent work.209 It is the employer’s burden to prove

that the employee failed to mitigate by submitting evidence that would establish

that substantially equivalent positions were available and that the employee failed

to attempt to diligently secure such positions.210 The Supreme Court has stated, an

“unemployed or underemployed claimant need not go into another line of work,

accept a demotion, or take a demeaning position [and will only] forfeit[ ] his right to

backpay if he refuses a job substantially equivalent to the one he was denied.”211

Here, Respondent failed to meet its burden to show a failure to mitigate

because it failed to provide evidence about substantially equivalent work.

Respondent submitted job postings for mechanics and “field service technicians” in

the area as evidence of available work.212 The jobs in general have lower pay than

Gourneau’s, and a review of the descriptions does not show that they are

substantially equivalent to the position he held with Respondent. The ALJ noted in

his decision that “there is no clear evidence presented by BNSF in the record as to

the available hours, pay or working conditions of the only comparable work

Gourneau mentioned seeking, with two short-line railroads.”213 Accordingly,

Respondent failed to meet its burden to show that damages were not mitigated.

In any case, Gourneau testified that his search for work was limited due to

the COVID-19 pandemic, which was in full force at the time his employment was

terminated and increased the danger of obtaining work with his pre-existing

asthma condition. The ALJ found this to be reasonable,214 stating that “under the

unprecedented circumstances of the pandemic, it was a reasonable decision not to

seek new employment in general, given Gourneau’s age and preexisting pulmonary

conditions and the associated elevated risk of death from COVID-19.”215

We find substantial evidence in the record to support the ALJ’s decision, and

we affirm the ALJ’s backpay award.

209

Dale, ARB No. 2004-0003, slip op. at 5-7.

210

Id. at 7.

Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982); see also Parrish v. Immanuel

Med. Ctr., 92 F.3d 727, 735 (8th Cir. 1996).

211

212

RX-15.

213

D. & O. at 36.

Id. The ALJ also noted that Complainant’s asthma diagnosis was not a disabling

condition generally, preventing Gourneau from working for Respondent, because it was a

condition that existed before and during Gourneau’s employment with BNSF.

214

215

Id.

C. Punitive Damages

Respondent also challenges the ALJ’s award of punitive damages.

Respondent argues that it took steps to comply with the law, and that its antiretaliation policies are evidence of that.216 Respondent also argues that its policies

insulate it from liability for any punitive damages because of its good-faith efforts to

comply with the FRSA.

Relief under FRSA “may include punitive damages in an amount not to

exceed $250,000.”217 An award of punitive damages may be awarded when there has

been a reckless or callous disregard for the plaintiff's rights, as well as intentional

violations of federal law.”218 The inquiry into whether punitive damages are

warranted focuses on the employer’s state of mind, and thus does not require that

the employer’s misconduct be egregious.219 Instead, a plaintiff must present proof

that the employer acted “in the face of a perceived risk that its actions will violate

federal law.”220 The focus must be on whether the employer’s actions call for

“deterrence and punishment over and above that provided by compensatory

awards.”221 An employer may avoid punitive damages when it has made a good-faith

effort to comply with the law.222 The employer relying on the affirmative defense of

good faith has the burden of proof.223

The Board’s standard of review for whether punitive damages are warranted

is substantial evidence—that is, the Board reviews the factual question of whether

the employer acted with the requisite state of mind for substantial evidence in the

record.224 “An ALJ’s task after determining that an award of punitive damages is

216

Resp. Br. at 56.

217

49 U.S.C. § 20109(e)(3).

218

Smith v. Wade, 461 U.S. 30, 51 (1983); Raye, ARB No. 2014-0074, slip op. at 8.

219

Raye, ARB No. 2014-0074, slip op. at 7.

220

Kolstad v. Am. Dental, 527 U.S. 526, 536 (1999).

221

Smith, 461 U.S. at 54.

Youngermann v. United Parcel Serv., ARB No. 2011-0056, ALJ No. 2010-STA-00047,

slip op. at 7 (ARB Feb. 27, 2013) (citations omitted).

222

223

Kolstad, 527 U.S. at 545.

Raye, ARB No. 2014-0074, slip op. at 8 (ARB Sept. 8, 2016) (“The substantial

evidence of record supports the ALJ’s findings of egregious and intentional conduct

warranting the award of punitive damages.”); D’Hooge v. BNSF Rys., ARB No. 2015-0042, 0066, ALJ No. 2014-FRS-00002, slip op. at 11 (ARB Apr. 25, 2017) (“We review the ALJ’s

finding of the requisite state of mind for substantial evidence.”); Riddell, ARB No. 20190016, slip op. at 22 (ARB May 19, 2020) (“The Board reviews whether a punitive damages

224

appropriate is to determine the amount necessary for punishment and deterrence—

‘a discretionary moral judgment.’” 225 The ARB reviews an ALJ’s determination of

the amount of a punitive damages award for an abuse of discretion.226

The ALJ found that “Bieber had knowledge that the FRSA bars retaliation

against employees who make safety complaints” and “acted with malice or reckless

indifference to Gourneau’s rights.”227 Earlier in the ALJ’s decision, the ALJ found

“that BNSF’s adverse actions reflected intentional conduct by the company’s

managers in reckless disregard of Gourneau’s protected FRSA rights.”228 We agree.

Substantial evidence in the record supports the ALJ’s finding Respondent’s conduct

in taking adverse action against Complainant in this matter was done in reckless

indifference to the law.

With respect to the first discipline Respondent leveled against Complainant,

the ALJ found that Vogele and Bieber, “the manager in the field with the most

knowledge of Gourneau’s history of safety advocacy,” pushed for harsher penalties

for Gourneau, while the managers in Fort Worth, Maglisceau and Detlefsen pushed

back. All of this for an action that Respondent had no clear rule about—Bieber

himself had “emphasized that carmen should use their judgment to make the safest

award is warranted for whether substantial evidence supports the ALJ finding that the

employer acted with the requisite intent.”); see Schaub v. VonWald, 638 F.3d 905, 939 (8th

Cir. 2011) (“Whether a defendant’s conduct meets the callousness threshold [to support a

punitive damages award] is a question of fact.”); Fletcher v. Tomlinson, 895 F.3d 1010, 1024

(8th Cir. 2018) (““[W]hether a defendant’s conduct was motivated by an evil motive or

involves reckless indifference to the federally protected rights of others” “is a question of

fact.”). Contra Brough, ARB No. 2016-0089, slip op. at 17 (ARB June 12, 2019) (despite ARB

caselaw to the contrary, the Board concluded that under the APA the question of whether

Respondent acted with reckless or callous disregard for the plaintiff's rights or intentional

violations of federal law warranting punitive damages was a question of law subject to de

novo review.).

225

Raye, ARB No. 2014-0074, slip op. at 10 (quoting Smith v. Wade, 461 U.S. at 52).

Id. at 2 (citing Cooper Indus. Inc., v. Leatherman Tool Grp., Inc., 532 U.S. 424, 433

(2001) (“If no constitutional issue is raised, the role of the appellate court, at least in the

federal system, is merely to review the trial court’s ‘determination under an abuse-ofdiscretion standard’” regarding the amount of a punitive damages award) (quoting

Browning-Ferris Indus. of Vt., Inc., v. Kelco Disposal, Inc., 492 U.S. 257, 279 (1989)).

Respondent did not appeal the amount of the punitive damages award, only that punitive

damages were awarded at all, so the issue of whether the ALJ abused his discretion in

awarding $150,000.00 in punitive damages is not at issue on appeal.

226

227

D. & O. at 44.

228

Id. at 28.

decisions when operating vehicles in foul areas,” and it was commonly thought that

the actions Gourneau took were considered the correct course.229

After returning from his suspension, Gourneau believed that “Bieber’s

attitude had changed toward him. Gourneau felt that Bieber ‘was holding a grudge”

and “was out to get me . . . and was going to get me sooner or later.’”230 Further,

Gourneau heard from coworkers that Bieber was trying to fire him.231 The ALJ

found Complainant to be overall credible and specifically found credible and

supported by other facts in the record, that Gourneau “was being targeted, and that

Bieber’s attitude toward him had in fact perceptibly changed.”232

With regard to Respondent’s second discipline against Gourneau and

ultimate termination, Bieber initiated the action himself by operating the camera

and taking video to identify what he asserted was a violation, identified Gourneau

as the person in the video committing the violation, and initiated a second violation

against Gourneau.233 Bieber then requested that Vogele serve as the investigator

into Gourneau a second time.234 During the investigation, Bieber was the primary

witness for BNSF.

Viewed together, this evidence supports, as the ALJ found, that Bieber had

animus against Gourneau because he engaged in protected activity and engaged in

intentional conduct in reckless disregard of Gourneau’s protected FRSA rights.

Therefore, the ALJ’s finding on this issue supportive of a punitive damages award is

affirmed as supported by substantial evidence.

As stated above, an employer may avoid punitive damages if it can prove that

it has made a good-faith effort to comply with the law. However, the ALJ found that

BNSF’s anti-retaliation policies were insufficient to establish a good faith effort to

comply with the FRSA in this matter. While BNSF’s policies exist, the ALJ found

that Bieber was able to work around those policies, resulting in the prohibited

termination of Gourneau’s employment. He noted that some Eighth Circuit and

other cases have found that sufficient corporate policies preclude punitive

damages.235 Respondent relies heavily on one of those decisions, Carter, an appeal

229

Id.

230

Id.

231

Id.

232

Id.

233

Id. at 12.

234

Id.

Id. at 41-42; see BNSF Ry. Co. v. U.S. DOL Admin. Review Bd. (Carter), 867 F.3d

942 (8th Cir. 2017); Kolstad, 527 U.S. at 544.

235

from the ARB in which a punitive damages award was vacated. In that decision, the

Eighth Circuit stated, in part,

BNSF may avoid vicarious punitive damages liability by

showing that it made good faith efforts to comply with the

FRSA. Here, the ALJ acknowledged that BNSF has a Code

of Conduct that specifically prohibits retaliation, an Injury

Reporting Policy prohibiting retaliation against employees

who report injuries, a Mechanical Safety Rule expressly

prohibiting retaliation, a hotline or website, and review of

dismissals by its Labor Relations Department, and that

Heenan, the person ultimately responsible for reviewing

the file and making a recommendation, had never met Mr.

Carter, and knew nothing about his injury or subsequent

lawsuit. This is strong evidence of BNSF’s good-faith

efforts to prevent retaliation.[236]

Respondent also relies on Kolstad v. American Dental Association, a case

arising under Title VII, in which the Supreme Court held that an employer is not

liable for punitive damages if a supervisor’s action was “contrary to the employer’s

good-faith efforts to comply” with federal law.237

The ALJ found Carter and Kolstad inapplicable. The ALJ reasoned that the

discussion in Carter was dicta (1) regarding the final decisionmaker’s lack of

knowledge without analyzing whether his decision was influenced by those with

knowledge, and (2) because it failed to examine in-circuit precedent on punitive

damages and insufficient good faith efforts. The ALJ’s analysis on Carter is

persuasive and is bolstered by the subsequent history involved in Carter—once

Carter went back to the ALJ and the inextricably intertwined causation was

removed from the analysis, the ALJ found no liability whatsoever for BNSF. This

Board affirmed.238

The ALJ found that Kolstad was inapplicable because the Tenth Circuit and

the District of Minnesota both explicitly rejected the notion that BNSF’s policies are

a total bar to punitive damages.239 Instead, the ALJ relied on Fresquez v. BNSF, a

236

See Carter, 867 F.3d at 949 (quotation omitted).

237

Resp. Br. at 47 (citing Kolstad, 527 U.S. at 545).

238

Carter, ARB No. 2021-0035, slip op. at 18.

D. & O. at 41-42 (citing Fresquez v. BNSF Ry. Co., 52 F.4th 1280, 1320 (10th Cir.

2022); Sanders v. BNSF Railway Co., No. 17-cv-5106, 2019 WL 5448309, at *16 (D. Minn.

Oct. 24, 2019)).

239

case that also contained a cat’s paw fact pattern.240 Specifically, despite a PEPA

review, the Court found that a reasonable jury would find that the anti-retaliation

policies were insufficient and the managers who retaliated “promoted a workplace

culture that encouraged the flouting of federal safety regulations, and openly

discouraged employees, by way of intimidation and fear of reprisal, from objecting to

these practices, all for the purpose of allowing trains to continue to run on tracks

that contained defects.”241 Other courts have followed similar reasoning and found

that the existence of the policy is insufficient—the employer must actually insulate

the decision-maker from managers with ill-intent.242

Here, the ALJ noted that the PEPA committee was small and relied very

heavily on the work of the managers on the ground to process discipline. The ALJ

pointed out that in this case, despite BNSF’s policies, Bieber successfully used the

PEPA process to effectively retaliate against Gourneau. The ALJ described Bieber’s

conduct as “a months-long series of actions to discipline and then fire Gourneau.”243

We note that the evidence shows Bieber was directly in contact with PEPA and

argued for harsher discipline. There is sufficient evidence in the record for a

reasonable mind to conclude that BNSF did not make a good faith effort to comply

with FRSA.

A thorough review of the record demonstrates that (1) Respondent acted with

the requisite intent to support an award of punitive damages, (2) Respondent failed

to meet its burden to prove the affirmative defense of good faith, and (3) the ALJ’s

240

Fresquez v. BNSF Ry. Co., 52 F.4th 1280 (10th Cir. 2022).

241

Id. at 1320-21.

Sanders, 2019 WL 5448309, at *16 (“[O]ne of the key aspects of this determination is

whether BNSF did not merely have but followed an internal review process in which the

person ultimately responsible for the decision was disconnected from the assertedly bad

actor.”); see also Fresquez v. BNSF Ry. Co., No. 17-cv-00844-WYD-SKC, 2018 WL 6249686,

at *9 (D. Colo. Oct. 2, 2018) (denying summary judgment on punitive damages because

PEPA committee was aware that there were complaints of retaliation, but did nothing to

investigate); Smith v. BNSF Ry. Co., No. 17-CV-00977-KMT, 2019 WL 3230975, at *8 (D.

Colo. July 18, 2019) (fact question as to whether BNSF acted in good faith despite having

anti-retaliation policies).

242

243

D. & O. at 43.

factual findings on these issues are supported by substantial evidence. Accordingly,

the ALJ’s punitive damages award of $150,000 is affirmed.

CONCLUSION

For the reasons set forth above, we AFFIRM the D. & O.244

SO ORDERED.

ANGELA W. THOMPSON

Administrative Appeals Judge

RANDEL K. JOHNSON

Chief Administrative Appeals Judge

ELLIOT M. KAPLAN

Administrative Appeals Judge

In any appeal of this Decision and Order, the appropriately named party is the

Secretary, U.S. Department of Labor, not the Administrative Review Board.

244

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.