Administrative Review Board

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

MICHAEL BROUSIL,

ARB CASE NOS. 2020-0053

2020-0062

COMPLAINANT,

v.

ALJ CASE NO.

2014-FRS-00163

DATE: January 27, 2021

BNSF RAILWAY COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Kenneth E. Rudd, Esq.; Wildwood, Missouri

For the Respondent:

Paul S. Balanon, Esq.; BNSF Railway Company; Fort Worth, Texas

Before: Thomas H. Burrell, Randel K. Johnson, and Stephen M. Godek,

Administrative Appeals Judges

DECISION AND ORDER

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

Federal Railroad Safety Act of 1982 (FRSA).1 Michael Brousil (Complainant) filed a

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

Health Administration (OSHA) alleging that BNSF Railway Company (Respondent)

violated the FRSA by disciplining him in retaliation for acts protected by the FRSA.

OSHA dismissed the complaint. Complainant objected and requested a hearing

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

1982 (2020) and 29 C.F.R. Part 18, Subpart A (2020).

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before an Administrative Law Judge (ALJ), who found Respondent had proven its

affirmative defense. Complainant appealed. On July 9, 2018, the Administrative

Review Board (ARB or Board) remanded the case back to the ALJ for application of

the correct legal standard to Respondent’s affirmative defense. The ALJ reassigned

to this case ruled in favor of the Respondent. For the following reasons, we affirm

the ALJ’s order.

BACKGROUND

Respondent hired Complainant in 1988. At the time of the events listed

below, Complainant worked as a locomotive engineer. On August 2, 2013,

Respondent assessed Complainant with a Standard Formal Reprimand for violating

Attendance Guidelines. In March of 2011 and throughout 2013, Complainant raised

his concerns to Respondent’s managers about plugging into shore power at Chicago

Union Station due to his apprehensions of unsafe exposure to diesel exhaust. “Shore

power” is power the train station supplies an incoming train by connecting a large

electrical cord.

On August 29, 2013, Respondent issued a “Level S 30 Day Record

Suspension” with a 3-year probation period against Complainant for a February 5,

2013 incident. A passenger train departed without an illuminated light indicating

that all doors were closed. The train traveled at speeds over 65 miles-per-hour for

more than 10 minutes with a car door open. Later on the same day, the passenger

train departed again without a door indicator light for approximately 40 seconds

before doors were shut.

On October 11, 2013, Respondent issued two additional “Level S 30 Day

Record Suspensions” with 3-year probation periods to be served concurrently with

the first disciplinary review period against Complainant for incidents occurring on

July 29, 2013, and August 1, 2013. On July 29, 2013, Complainant refused to follow

supervisor’s instructions to use an alternative method to ensure all car doors were

closed as the door indicator light was not working. On August 1, 2013, Complainant

stopped a train 30 feet from the stopping point at Chicago Union Station and

refused instructions to pull the train closer to be plugged into shore power. As a

result, a disabled passenger was temporarily unable to board the train and

approximately 2,500 commuters were delayed more than 20 minutes.

On November 25, 2015, the ALJ assigned to the case dismissed

Complainant’s claim after finding Respondent had shown it would have taken the

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same adverse actions at issue absent any protected activity. The ALJ found that

Respondent had probable cause to investigate Complainant’s actions and that

Respondent showed leniency in its discipline. On July 9, 2018, the Board vacated

the ALJ’s conclusion that Respondent proved it would have taken the same adverse

action against Complainant and remanded the case back to the ALJ for application

of the correct legal standard. Specifically, the Board found that the ALJ’s findings

that Respondent had probable cause to investigate Complainant’s actions and that

it did not discipline him to the extent that it could have under its rules did not meet

the required “clear and convincing” standard.

The ALJ reassigned to the case dismissed Complainant’s claim, finding that

Respondent proved, by clear and convincing evidence, that it would have taken the

same adverse action against Complainant absent any of his protected activity.

These appeals followed.2

JURISDICTION AND STANDARD OF REVIEW

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

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

matters.3

DISCUSSION

The FRSA is governed by the burdens of proof set out under the Wendell H.

Ford Aviation Investment and Reform Act for the 21st Century (AIR 21).4

On October 9, 2018, the ALJ issued an order denying Respondent’s motion

requesting briefing to be filed by the parties addressing the contributing factor and

protected activity elements. Respondent appeals this determination. (ARB No. 2020-0053).

As the Respondent did not provide a compelling reason to submit briefing on an issue that

the Board has previously held was final in this matter, and as the Respondent concedes

that it did not timely file an appeal before the ARB on these issues at that time, we affirm

the ALJ’s order and deny Respondent’s petition.

2

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

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

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020); see 29 C.F.R. § 1982.110(a). In its response

brief, Respondent argues that the Board lacks subject-matter jurisdiction over ARB Case

No. 2020-0062 because the Board failed to timely accept Complainant’s petition for review.

However, the Board denies the Respondent’s argument because the ALJ’s order could not

be considered final once the Board timely accepted the Respondent’s petition for review.

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49 U.S.C. § 20109(d)(2)(A)(i), citing 49 U.S.C. § 42121(b).

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Accordingly, to prevail, an FRSA complainant must establish by a preponderance of

the evidence that: (1) he engaged in a protected activity, as statutorily defined; (2)

he suffered an unfavorable personnel action; and (3) the protected activity was a

contributing factor, in whole or in part, in the unfavorable personnel action.5 If a

complainant meets this burden of proof, the employer may avoid liability only if it

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

unfavorable personnel action absent the complainant’s protected activity.6

The issue before us is whether substantial evidence supports the ALJ’s

finding that Respondent proved, by clear and convincing evidence, it would have

taken the same adverse action absent any of Complainant’s protected activity. The

Board has held that an ALJ’s factual finding will be upheld where supported by

substantial evidence even if there is also substantial evidence for the other party,

and even if we “would justifiably have made a different choice had the matter been

before us de novo.”7 As the United States Supreme Court has stated, “[t]he

threshold for such evidentiary sufficiency is not high.”8 Substantial evidence is

“‘more than a mere scintilla.’ It means—and means only—‘such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.”’9

In deciding this case, the ALJ found that Respondent acted appropriately in

accordance with its safety and operating rules and within its “zero tolerance” policy

for workplace retaliation. The ALJ found “[a]lthough Complainant was involved in

several disciplinary proceedings over a short time period, the disciplinary

proceedings were consistent with BNSF safety rules and clearly resulted from

Complainant’s conduct over a short time period rather than any motive to harass or

intimidate Complainant.”10 Upon review of BNSF’s safety and operating rules, we

find that they support the ALJ’s findings that Respondent’s discipline was based on

Complainant’s own behavior throughout the three incidents and would have

occurred in the absence of protected activity.

5

49 U.S.C. § 42121(b)(2)(B)(iii).

6

Id. at § 42121(b)(2)(B)(iv).

Henrich v. Ecolab, Inc., ARB No. 2005-0030, ALJ No. 2004-SOX-00051, slip op. at 8

(ARB June 29, 2006) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).

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8

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).

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

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D. & O. at 17-18.

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Additionally, the ALJ found that Respondent demonstrated no retaliatory

motive in its discipline. The ALJ analyzed factors including whether Respondent’s

operating and safety rules were rational, unambiguous, and retaliatory; whether

Complainant failed to act in accordance with those rules and instructions from his

supervisors; and the import of Complainant’s own admissions, including conceding

at his deposition that he departed without an illuminated door indicator light the

second time on February 5, 2013. The ALJ also noted that Respondent had given

greater discipline and terminated 15 other employees in 2013 for violating the same

rules with which Complainant was charged.11 The ALJ found that the basis and the

managerial leniency of the Respondent’s disciplinary decisions were so powerful

that it is clear the discipline would have occurred apart from his protected activity,

and that “[g]iven the justification for the lenient treatment of Complainant due to

his position and tenure with Respondent, I thus find that Respondent has shown by

clear and convincing evidence that it would have disciplined Complainant in the

same way in the absence of Complainant’s protected activity.”12 We affirm this

conclusion as supported by substantial evidence and in accordance with law.13

Accordingly, we find the record supports the ALJ’s factual determination that

Respondent proved, by clear and convincing evidence, that it would have taken the

same adverse actions against Complainant absent any of his protected activity.

CONCLUSION

The ALJ’s Decision and Order is supported by the substantial evidence in the

record. Accordingly, we AFFIRM the ALJ’s conclusion of law that Respondent

proved its affirmative defense and the complaint in this matter is DENIED.

SO ORDERED.

11

Id. at 19.

12

Id. at 25.

Complainant argues that the ALJ’s opinion is not supported by substantial evidence

because the ALJ failed to adequately address his argument that Respondent tampered with

the download evidence presented at the August 14 disciplinary hearing. However, as there

is no showing of tampered evidence in the record, we conclude that the ALJ’s factual

determination is supported by substantial evidence.

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