U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

JONATHAN WALLS,

ARB CASE NO. 2018-0015

COMPLAINANT,

v.

ALJ CASE NO. 2016-FRS-00069

DATE: March 17, 2020

UNION PACIFIC

RAILROAD, CO.,

RESPONDENT.

Appearances:

For the Complainant:

Jerry Easley, Esq.; Rome, Arata & Baxley, L.L.C.; Pearland, Texas

For the Complainant:

Doris A. Beutel-Guthrie, Esq. and Ryan D. Wilkins, Esq.; Union

Pacific Railroad; Houston, Texas

Before: Thomas H. Burrell, Acting Chief Administrative Appeals Judge,

James A. Haynes and Heather C. Leslie, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM. This case arises under the Federal Rail Safety Act of 1982

(FRSA). 1 Complainant Jonathan Walls filed a complaint alleging that Respondent

Union Pacific Railroad retaliated against him in violation of FRSA’s whistleblower

49 U.S.C. § 20109 (2008), as implemented by federal regulations at 29 C.F.R. Part

1982 (2019) and 29 C.F.R. Part 18, Subpart A (2019).

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protection provisions for reporting an injury. Complainant appeals from a Decision

and Order (D. & O.) issued by a Department of Labor Administrative Law Judge

(ALJ) on December 12, 2017, dismissing Walls’ complaint because Walls failed to

carry his burden to prove by a preponderance of the evidence that Respondent

engaged in an unfavorable personnel action against him. We affirm.

BACKGROUND

Complainant works for Respondent as a brakeman-conductor and has done so

since November 2011. Walls v. Union Pac. R.R. Co., ALJ No. 2016-FRS-00069, slip

op. at 8 (ALJ Dec. 12, 2017) (“D. & O.”). On September 9, 2015, Complainant

reported that he had been injured in a derailment that occurred on September 3,

2015, and on September 9, he requested transportation to the hospital. He followed

his physician’s treatment plan from September 9, 2015, to October 20, 2015, which

restricted him from full-time work for Respondent. Finally, he filed an OSHA

complaint on September 11, 2019. Id. Based on the parties’ joint stipulations of fact,

the ALJ concluded that Complainant engaged in FRSA-protected activity. Id.

Briefly, Complainant alleged that Respondent violated FRSA by delaying and

interfering with his medical treatment on September 9, 2015. Complainant further

alleged that Respondent’s periodic surveillance of him while he was off work was

stressful and rose to the level of adverse action.

To determine whether there was adverse action in the form of an

interference, denial, or delay in medical treatment, the ALJ analyzed the events of

September 9, 2015. Id. at 24. On that day, Complainant called his supervisor,

Steffen Storbeck, and reported that he was having pain in his ankle that was

becoming worse. Id. At the time of the call, Complainant was working aboard a

moving train. Storbeck arranged an unscheduled stop and drove to meet

Complainant in Waco. Id. Upon first meeting in person that day, Complainant at

first told Storbeck that he was not injured and refused medical treatment. Id. at 25.

Thereafter, Complainant told Storbeck that he wanted to get checked by medical

professionals. Id. Storbeck immediately decided to take Complainant to the closest

hospital emergency room in his vehicle. Id. However, before they began driving,

Storbeck offered Complainant his phone so that he could speak to nurse Guadalupe

Koch. Complainant agreed to talk to her and took the phone. Id. at 26. The call

continued and concluded while Storbeck was driving Complainant to the hospital.

Id. Storbeck and Complainant arrived at the hospital and Complainant received

treatment, which included the use of crutches for two weeks. Id. at 10.

The ALJ found “Complainant’s testimony unpersuasive due to the equivocal

nature of his reports following the September 3, 2015 derailment.” Specifically he

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found that Complainant’s “equivocation, lack of specificity, and inconsistent reports

regarding the extent of his claimed injuries make his testimony about the version of

the events occurring on the evening of September 9, 2015 unpersuasive, including

the timing and content of the telephone conversations with Nurse Koch.” Id. at 1718. In contrast, the ALJ found the testimony of Storbeck and Koch largely credible,

straightforward and forthright. Id. at 18, 19. Indeed, the ALJ found with respect to

Storbeck that

Mr. Storbeck’s testimony concerning the phone calls with

Nurse Koch is more persuasive and credible than

Complainant’s testimony. The undersigned finds the most

reasonable interpretation of the evidence is [that] the

telephone calls with Nurse Koch were placed or received

shortly before Complainant and Mr. Storbeck began

driving to the hospital and concluded during the drive to

the hospital. The undersigned specifically rejects

Complainant’s testimony that the entire duration of his

telephone conversation with Nurse Koch occurred prior to

leaving for the hospital. This finding of fact is further

supported by the Mr. Storbeck’s cellular telephone

records.

Id. at 19. Further, the ALJ found that nurse Koch’s testimony contained no

apparent inconsistencies. Her testimony was corroborated as to the length of her

telephone call with Complainant by Storbeck’s testimony and independently by cell

phone records, and the ALJ found her persuasive concerning the details and

purpose of the conversation. Id. at 19.

To determine whether there was adverse action in the form of private

surveillance of Complainant by Respondent, the ALJ considered the record evidence

including witness testimony and the private investigator’s report. Respondent had

engaged a private investigator to conduct surveillance of Complainant that

Complainant asserts was stressful. Id. at 22. The surveillance was conducted on

four days and occurred during daytime hours only. Id. at 23.

Based on the ALJ’s findings of fact, she concluded that Complainant failed to

prove by a preponderance of the evidence that Respondent took any unfavorable

personnel action against him and dismissed the complaint. Complainant appealed

to the Administrative Review Board (ARB or Board).

JURISDICTION AND STANDARD OF REVIEW

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The Secretary of Labor has delegated to the Administrative Review Board

authority to issue agency decisions under the FRSA. 2 The Board reviews the ALJ’s

factual determinations under the substantial evidence standard. 3 The Board

reviews an ALJ’s conclusions of law de novo. 4

DISCUSSION

FRSA complaints are governed by the legal burdens of proof set forth in the

employee protection provision of the Wendell H. Ford Aviation Investment and

Reform Act for the 21st Century (AIR 21). 49 U.S.C. § 20109; see 49 U.S.C. §

42121(b) (2000). To prevail on a FRSA claim, an employee must prove by a

preponderance of the evidence that he engaged in protected activity which was a

contributing factor in an unfavorable personnel action taken against him. 49 U.S.C.

§ 42121(b)(2)(B)(iii). In light of our disposition of this matter, we limit our

discussion to the issue of whether the ALJ correctly decided that Complainant

failed to prove that Respondent engaged in any unfavorable action against him.

Having considered the evidence of unfavorable personnel action as a whole

and collectively weighing all of the evidence of record, the ALJ found that

Complainant failed to prove that Respondent took any unfavorable personnel action

against him in this matter. Id. at 15. Initially, the ALJ found that while Storbeck

handed Complainant a cell phone with which to speak to nurse Koch, Complainant

voluntarily spoke with the nurse and that speaking with her did not cause a denial,

delay, or interference in transporting Complainant to the hospital and securing

medical treatment. 5 Id. at 25, 26. The ALJ found that while the call began before

Storbeck and Complainant left for the hospital, it concluded while Storbeck was

driving Complainant to the hospital. Id. at 26. Further, the ALJ found specifically

that nurse Koch did not attempt to dissuade or interfere with Complainant

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

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (March 6, 2020); see

29 C.F.R. § 1982.110(a).

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29 C.F.R. § 1982.110(b).

Hamilton v. CSX Transp., Inc., ARB No. 12-022, ALJ No. 2010-AIR-025, slip

op. at 2 (ARB Apr. 30, 2013) (citations omitted).

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See Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014FRS-00062, slip op. at 18 (ARB Jun. 17, 2019) (The FRSA at 49 U.S.C. 20109(c)(1) (2008)

prohibits a railroad from denying, delaying or interfering with prompt medical treatment or

first aid during the time period immediately following a workplace injury.).

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obtaining medical treatment, a finding supported by her testimony and a clinical

consultation record that she completed on September 9, 2015. 6 Id. at 27.

Additionally, the ALJ found that there was no adverse personnel action with

respect to Respondent’s surveillance of Complainant. 7 Id. at 23. The ALJ analyzed

factors including the length, duration, and time of day in which the surveillance

took place to come to this conclusion and appropriately concluded that while

surveillance of a complainant by a respondent may in some cases rise to the level of

adverse action, in this case, it did not. 8 We affirm this conclusion as supported by

substantial evidence and in accordance with law.

To summarize, the ALJ concluded that while Complainant engaged in

protected activity, Respondent did not take any unfavorable employment action

against him. Substantial evidence supports the ALJ’s findings of fact and her

conclusions are in accordance with law.

CONCLUSION

As substantial evidence supports the ALJ’s factual determination that

Respondent did not take any adverse action against Complainant, we AFFIRM the

ALJ’s conclusion of law that Respondent did not violate the STAA. Accordingly, the

complaint in this matter is DENIED.

SO ORDERED.

Indeed, the ALJ found that nurse Koch provided general comfort to

Complainant while in transport in a non-emergency vehicle to a medical provider and

concluded this was consistent with Respondent’s policies. D. & O. at 27. Her role here

facilitated rather than interfered with Complainant’s medical care.

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While the ALJ referenced an “expansive view” of adverse action by the Board,

we make clear that both the ALJ and the Board must apply the statute and regulations as

they are found. The ALJ appropriately applied the law to the facts in this case to find that

the surveillance in this case did not constitute and adverse personnel action.

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The ALJ found that: “The report makes clear that the private investigator

followed Complainant to his doctor’s appointments and parked outside his home during the

daytime hours only. There is no indication the private surveillance caused Complainant to

alter his daily living activities in any manner or resulted in Complainant or any of his family

members having any personal encounters with unknown persons. Consequently, the

undersigned concludes that, based on the facts presented in this case, the private surveillance

of Complainant was not an adverse action and would not dissuade a reasonable worker from

bringing a charge of discrimination.” D. & O. at 23.

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