# Administrative Review Board

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A621bd816f729f5fb

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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)).

10

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A621bd816f729f5fb. Public record. Not legal advice.