# U.S. Department of Labor

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URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A7b3458becec403eb

## Record

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

## Text

U.S. Department of Labor

Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

In the Matter of:
WILLIAM BURT,
COMPLAINANT,
v.

ARB CASE NO.

2020-0042

ALJ CASE NO.

2018-FRS-00015

DATE: April 29, 2021

NATIONAL RAILROAD PASSENGER
CORPORATION (“AMTRAK”),
RESPONDENT.

Appearances:
For the Complainant:
William L. Myers, Jr., Esq.; The Myers Firm, Attorneys at Law, P.C.;
Philadelphia, Pennsylvania
For the Respondent:
Gina E. Nicotera, Esq. and William G. Ballaine, Esq.; Landman Corsi
Ballaine & Ford, P.C.; New York, New York
Before: Thomas H. Burrell, Randel K. Johnson, and Stephen M. Godek,
Administrative Appeals Judges

2

DECISION AND ORDER AFFIRMING IN PART,
VACATING AND REVERSING IN PART
PER CURIAM. William Burt (Complainant) filed a complaint under the Federal
Railroad Safety Act1 (FRSA), alleging that his employer, National Railroad
Passenger Corporation (Respondent), had violated the FRSA’s whistleblower
protection provisions. After a hearing, an Administrative Law Judge (ALJ) found
that Respondent had violated the FRSA and awarded him damages. Respondent
appealed the ALJ’s decision. We affirm in part, vacate and reverse in part.
BACKGROUND
Respondent employed Complainant as an electrical technician at its Bear,
Delaware facility.2 Complainant has worked for Respondent since 1983 and is a
member of the International Brotherhood of Electrical Workers (Union).3 In 2017,
Complainant performed inspections on cars at the facility.4 Complainant reported to
Foreman Phil Daly, who reported to General Foreman Kevin Mitchell.5 Mitchell
reported to Manager of Mechanical Operations Louis Ortiz.6
On March 26, 2013, Complainant reported to his supervisors that battery
chargers were being installed improperly and filed a complaint about the issue with
the Occupational Safety and Health Administration (OSHA) on April 4.7 OSHA

1

49 U.S.C. § 20109, as implemented at 29 C.F.R. Part 1982 and 29 C.F.R.
Part 18, Subpart A.
2
Decision and Order (D. & O.) at 2.
3
Id.
4
Id. at 20.
5
Id. at 18.
6
Id. at 11.
7
Id. at 13.

3
subsequently came to the facility and walked the line with Complainant and the
Union president.8
On April 2, 2013, Burt made a confidential complaint to Respondent’s Ethics
and Compliance Hotline (EEOC), stating that Foreman Maurice Ward had harassed
Complainant and Todd Porter, his colleague, because of his safety complaint.9
Complainant claimed that Ward told Porter on March 28 that he had heard “they
were f---ing up 30 track.”10 Complainant interpreted the comment to be an
insinuation that they were causing the safety issue.11
Superintendent Lou Woods met with Ward to inform him of the EEOC
complaint and confirmed that Complainant had made it, even though the hotline
was supposed to be anonymous.12 Ward testified as to how knowledge of complaints
is disseminated around the workplace, stating “it’s the railroad. [The employee will]
make a call, he’ll in discretion tell his buddies, who in discretion tells one of his
buddies, and then it gets around the shop.”13
In 2016, Complainant became a shop steward for the Union, which obligated
him to interact with Ward on matters involving overtime.14 Electrician Charles
Messina was assigned to work on cars on the 29 track, where Ward was the
foreman.15 On July 17, 2017, Messina noticed that two other electricians started to
work overtime, knowing that he was ahead of them on the “overtime list.”16 Messina

8
9
10
11
12
13
14
15
16

Id. at 17.
Id. at 17; Complainant’s Exhibit 1A.
D. & O. at 17.
Id. at 14, 17.
Id. at 15.
Id. at 15; Hearing Transcript (Tr.) at 198.
D. & O. at 18.
Id.
Id.

4
asked Ward why he had been skipped.17 Messina then called the Union president to
report the issue, who instructed him to call Complainant.18
Complainant testified that he and Messina approached Ward’s office and
encountered Ward on the 27 track.19 Ward told Messina “I don’t appreciate you
bringing this over here with you” and “calling your union man,” referring to
Complainant.20 After Messina answered that Complainant was his union
representative, Ward acknowledged that he had “made a mistake.”21 Complainant
testified that he told Ward that Union rules required following the overtime list, to
which Ward retorted “I do whatever the f--- I want here.”22 The two men were
ultimately separated by another foreman.23 Ward added, “Next time you call the
EEOC, leave your name with it.”24 Immediately after the exchange, Ward
announced to the men on his line that he was cancelling overtime.25
Complainant testified that the altercation made him “feel terrible” and that
Ward “tried to make it look like it was my fault that all the overtime was stopping
and my men were losing money.”26 Later that day, Complainant spoke with the
Union president because he “was a little stressed about” the incident.27
Complainant also told his wife that he was stressed about the incident.28 After his
shift ended, the facility’s managers called Ward into a conference room to explain
the incident.29

17
18
19
20
21
22
23
24
25
26
27
28
29

Id. at 5, 18 (citing Tr. at 11).
Id. at 18.
Id. at 7 (citing Tr. at 35).
Id. at 7 n.10.
Tr. at 12.
D. & O. at 7 (citing Tr. at 36).
Id. at 18.
Id.
Id. (citing Tr. 13-14).
Tr. at 37.
Id. at 184.
Id. at 40, 89.
Id. at 184.

5
When Complainant arrived for work the following morning, a security officer
and policer officer for Respondent “escorted” him to the conference room to meet
with Mitchell and Ortiz.30 Complainant explained his side of the story and then
returned to his shift.31 Complainant said he was “scared to death” and “humiliated”
by the experience and thought the officers “were going to take [him] out of there in
handcuffs.”32 On the same day, Complainant’s foreman presented him with a timeadjustment slip to record his clock-in and clock-out times for the day because he was
unable to record it when the officers escorted him to the meeting.33
On July 28, 2017, Mitchell issued Complainant a written counseling letter for
failure to perform timely train inspections.34 The letter referenced Respondent’s
“Standards of Excellence,” which state that an employee can be dismissed for
violating the standards.35 Complainant, who had never received such a letter before,
believed the letter was “serious” discipline and part of a plan to fire him because it
is a step in Respondent’s disciplinary process.36
After these incidents, Complainant testified that he “was just stressed out”
and “scared [he] was going to lose [his] job.”37 Complainant also reported
experiencing a variety of physical ailments, including headaches, diarrhea, and high
blood pressure.38 On September 25, 2017, Complainant sought medical treatment
with his primary care physician, Dr. Robert Wilson, who diagnosed him with
debilitating anxiety and prescribed Xanax to treat the stress.39 Dr. Wilson advised
30

D. & O. at 18-19.
Id. at 7.
32
Tr. at 41.
33
D. & O. at 29-30.
34
Id. at 19.
35
Id. The letter stated that Complainant had not explained why it was taking
more than eight hours to perform an inspection, but Complainant testified that he had never
been told before that inspections should take no more than eight hours and that he does not
know anyone who could fully perform an inspection within eight hours. Id. at 21-22.
36
Id. at 19.
37
Tr. at 69.
38
D. & O. at 8 (citing Tr. at 69-70).
39
Id. at 38-39.
31

6
Complainant to refrain from working pending further evaluation.40 Complainant
went on sick leave the following day and did not return to work until December
2018, at a different facility for Respondent, where he obtained a lower-paying
position after searching for similar jobs.41
On September 20, 2017, Complainant filed a complaint with OSHA, alleging
that Respondent had unlawfully retaliated against him under the FRSA for
reporting the denial of overtime.42 On November 28, OSHA completed its
investigation and determined Complainant had failed to establish that he had
engaged in protected activity.43 On November 30, Complainant objected to the
determination and requested a hearing with the OALJ, which took place on June
24-25, 2019.44
On May 11, 2020, the ALJ issued a Decision and Order. The ALJ began the
decision by recounting the testimonial evidence and making witness credibility
determinations.45 The ALJ found that Messina’s and Complainant’s testimony was
credible.46 In contrast, the ALJ found that Ward’s testimony was only “moderately
credible” because he sometimes contradicted his own testimony at the hearing and
gave answers that “appeared deceptive, given the testimony of the record as a
whole.”47 We have no basis for disturbing the ALJ’s credibility findings of these
witnesses.

40

Id. at 39.
Id. at 23, 36, 39. On March 27, 2018, Respondent declared Complainant
medically disqualified based on submissions from Dr. Wilson. Id. at 22.
42
Id. at 1.
43
Id.
44
Id. at 1-2.
45
Id. at 5-12.
46
Id. at 6, 8.
47
Id. at 9. Regarding the credibility of Ward’s testimony, the ALJ found that
he had “a potential for bias, as he both is an individual Respondent and a current employee
of Respondent.” Id. The ALJ also found that Ward’s “testimony further demonstrates a
potential bias against Complainant due to their history of a strained relationship as coworkers, including the incidents in 2013 and 2017.” Id.
41

7
The ALJ turned to Complainant’s protected activity. The ALJ concluded that
Complainant engaged in a protected activity by making the safety reports to his
superiors and to OSHA regarding the hanging wires.48 The ALJ found unpersuasive
Ward’s assertion that his statement to Porter on March 28, 2013, was a joke,
considering Complainant made an EEOC complaint about it.49 The ALJ also found
Ward was aware that Complainant had made these complaints as Respondent’s
management culture does not protect the confidentiality of complainants.50
The ALJ next considered whether Respondent undertook adverse actions
against Complainant. The ALJ found that Ward, in his decision to publicly cancel
overtime after his altercation with Complainant, had the intent to harass and
humiliate Complainant and undermine his authority as a union representative.51
The ALJ also determined that Ward’s actions were more than trivial and therefore
constituted an adverse action against Complainant.52 The ALJ further determined
that the written counseling letter given by Mitchell was an adverse action because
the letter impliedly referenced further discipline if Complainant failed to abide by
the letter.53 The ALJ, however, concluded that the Respondent’s police escort and
time-adjustment slip were not adverse actions under FRSA.54
The ALJ subsequently discussed whether Complainant’s protected activity
had contributed to Respondent’s adverse actions. The ALJ found that Complainant’s
2013 safety complaints contributed to Ward’s cancelling of overtime, citing Ward’s
comment to Complainant about calling the EEOC.55 The ALJ, however, found
Complainant failed to establish that either Mitchell or Ortiz (Ortiz had advised
48

Id. at 24.
Id. at 14.
50
Id. at 25; see also id. at 14-15. Respondent does not dispute that Complainant
engaged in protected activity and that Ward knew about the complaints on appeal.
51
Id. at 27.
52
Id.
53
Id. at 28-29.
54
The ALJ found that Complainant had not proven Respondent had instructed
the police to escort him and that the time-adjustment slip was not a disciplinary action. Id.
at 27, 29-30.
55
Id. at 30-31.
49

8
Mitchell on issuing the counseling letter) knew of the safety complaint, and,
therefore the complaint did not contribute to the Respondent’s issuance of the
letter.56
The ALJ also concluded Respondent failed to prove its affirmative defense
that Ward would have still engaged in his discriminatory conduct of cancelling
overtime even if Complainant had not engaged in protected activity. The ALJ noted
that Respondent offered no alternative explanation why Ward made the comment
about Complainant calling the EEOC or cancelling the overtime.57
Because Complainant successfully proved his retaliation claim and
Respondent did not prove its affirmative defense, the ALJ discussed Complainant’s
claim for damages. For economic damages, Complainant sought loss of wages,
medical expenses, and reimbursement for lien advances. The ALJ awarded
$83,739.00 in lost “straight time wages,” $15,699.60 in overtime wages, and $2,381
in differential wages. The differential wage award accounted for the lesser pay
Complainant received in the position he obtained when returning to work, as well
as $1,027.56 in out-of-pocket medical expenses Complainant had paid to treat his
stress.58 The ALJ further awarded $42,743.56 to reimburse Complainant for two
liens he had taken out with the Railroad Retirement Board and AETNA to pay for
his expenses while he was out of work and had no income.59
The ALJ then discussed Complainant’s claim for emotional distress damages.
Relying on Dr. Wilson’s testimony about his treatment of Complainant’s anxiety
and Complainant’s testimony regarding his emotional state and physical symptoms
that developed after the altercation, the ALJ awarded Complainant $20,000.60

Id. at 33-34. Complainant does not dispute the ALJ’s finding that his
protected activity did not contribute to the written counseling letter on appeal.
57
Id. at 34-35.
58
Id. at 35-37.
59
Id. at 37, 39.
60
Id. at 37-40. Respondent seemingly does not contest the ALJ’s emotional
distress damages award.
56

9
The ALJ addressed Complainant’s claim for punitive damages. The ALJ
found that Respondent’s culture recklessly disregards a complainant’s anonymity
when he or she engages in protected activity or other confidential reporting, citing
the disclosure of Complainant’s EEOC complaint to Ward and Ward’s testimony
stating that complaints get around the shop.61 The ALJ further noted
Complainant’s escort by Respondent’s police officer as evidence of Respondent’s
problematic culture relating to protected activity. Someone had called the police and
managers allowed the police to publicly escort a union representative to discussions
about an incident with a manager involving a union issue.62 The ALJ found these
actions may have a chilling effect on the complaint process and awarded $35,000 in
punitive damages.63
Last, the ALJ addressed Complainant’s request to expunge the counseling
letter from Respondent’s records. The ALJ cited Leiva, in which the Administrative
Review Board (ARB or Board) held that expungement is not a realistic remedy
because employers are charged with maintaining records but held that placing the
file in a restricted folder not to be used in future personnel files is acceptable.64 The
ALJ therefore ordered Respondent to restrict access to the file and prohibited it
from using the file in future personnel actions.65 Respondent petitioned the ARB to
review the ALJ’s decision.
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated authority to the ARB to review appeals
of ALJ’s decisions pursuant to the FRSA.66 The ARB will affirm the ALJ’s factual

61
62
63

Id. at 41.
Id. at 41-42.

Id. at 42.
64

Id.; Leiva v. Union Pacific R.R. Co., ARB No. 2018-0051, ALJ No. 2017FRS-00036, slip op. at 6 n.11 (ARB May 17, 2019).
65
D. & O. at 42.
66
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).

10
findings if supported by substantial evidence but reviews all conclusions of law de
novo.67
DISCUSSION
The FRSA prohibits a railroad carrier engaged in interstate commerce or its
officers or employees from retaliating against an employee because the employee
engaged in a protected activity.68 The FRSA protects, among other acts, individuals
providing information regarding a violation of railroad safety regulations to a
federal regulator or a person with supervisory authority over the employee.69 To
prevail on an FRSA retaliation complaint, complainants must prove by
preponderance of the evidence that (1) they engaged in protected activity, (2) that
their employer took an adverse employment action against them, and (3) that the
protected activity was a contributing factor in the unfavorable personnel action.70 If
the complainant successfully proves their claim, the employer may avoid liability by
proving by clear and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of the protected activity.71
Respondent appeals several aspects of the ALJ’s decision. First, Respondent
contests the ALJ’s conclusion that it was liable under the FRSA. Second,
Respondent claims that the ALJ’s economic damages award was excessive. Third,
Respondent argues that the ALJ erroneously awarded Complainant punitive
damages. We shall address each argument in turn.
1. Respondent’s Liability

67

Austin v. BNSF Ry. Co., ARB No. 2017-0024, ALJ No. 2016-FRS-00013,
slip op. at 7 (ARB Mar. 11, 2019).
68
49 U.S.C. § 20109(a).
69
Id.
70
Fricka v. Nat’l R.R. Passenger Corp., ARB No. 2014-0047, ALJ No. 2013FRS-00035, slip op. at 5 (ARB Nov. 24, 2015).
71
Id.

11
Respondent contests the ALJ’s decision that it is liable under the FRSA for
retaliation. Respondent claims that the ALJ erred in finding that the altercation
between Complainant and Ward was an adverse action and that Complainant’s
protected activity contributed to the adverse action. We will affirm these findings if
they are supported by substantial evidence, which is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”72
Respondent argues that the verbal altercation between Ward and
Complainant cannot be considered an adverse action under the FRSA. Under that
statute, adverse actions are “unfavorable employment actions that are more than
trivial, either as a single event or in combination with other deliberate employer
actions alleged.”73 The ALJ, however, found that the subsequent cancellation of the
entire shift’s overtime, not the verbal altercation, was the adverse action. Such an
action is likely more than trivial. As the ALJ discussed, the decision undermined
Complainant’s position as a union representative and was made to harass and
humiliate him, which is more than a de minimus harm.74 Therefore, we conclude
the ALJ correctly found that Ward had committed an adverse action.

72

McCarty v. Union Pacific R.R. Co., ARB No. 2018-0016, ALJ No. 2016FRS-00066, slip op. at 3 (ARB Sept. 23, 2020).
73
Fricka, ARB No. 2014-0047, slip op. at 6 (quoting Williams v. Am. Airlines,
Inc., ARB No. 2009-0018, ALJ No. 2007-AIR-00004, slip op. at 7 (ARB Dec. 29, 2010)).
Respondent argues that the Board should not employ the “more than trivial test” and
instead apply the “materiality test” used in Title VII discrimination cases under Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Under such test, an adverse action is
one that would “dissuade[] a reasonable worker from making or supporting a charge of
discrimination.” Id. at 68. Respondent does not persuade us that Ward’s actions would not
be an adverse action under either test. Zavaleta v. Alaska Airlines, Inc., ARB No. 20150080, ALJ No. 2015-AIR-00016, slip op. at 8-10 (ARB May 8, 2017) (declining to reject
Burlington Northern’s applicability and reasoning that the “more than trivial” and
“materially adverse” test yield the same outcome).
74
See Williams, ARB No. 2009-0018, slip op. at 14-15 (“Trivial employment
actions” are actions “that ordinarily cause de minimus harm or none at all to reasonable
employees,” including “petty slights,” “minor annoyances,” “personality conflicts,” or
“snubbing by supervisors and coworkers.”).

12
Respondent further argues the ALJ erroneously found that the safety
complaint was a contributing factor in Ward’s cancellation of overtime. Respondent
claims that the roughly four-year gap between Complainant’s safety complaint and
the incident with Ward is too large to find contribution and that there were other
motivations for Ward’s behavior, including his frustration with Messina involving a
union representative in the overtime dispute.
A “contributing factor” is “any factor which, alone or in connection with other
factors, tends to affect in any way the outcome of the decision.”75 The ALJ found by
preponderance of the evidence that the 2013 safety complaint contributed to the
2017 altercation. The ALJ noted that Ward referenced the EEOC complaint during
the altercation, which Complainant had made after Ward said he heard that
Complainant was “f---cking up 30 track.” We hold that this finding is supported by
substantial evidence. The ALJ noted that: 1) Ward had known about the safety
complaint; 2) Ward’s comment in July 2017 to Complainant and Porter related to
the safety complaint; 3) Complainant had made an EEOC complaint about Ward’s
2013 conduct relating to the safety complaint; and 4) the EEOC complaint was
clearly on Ward’s mind during the altercation in 2017.76 While Respondent argues
that there could have been other motivations for Ward’s behavior, Complainant
needs only to prove that the protected activity contributed to the adverse action as a
factor, not that it was the only or main motivation for the adverse action. Thus, we
shall not disturb the ALJ’s finding.
Respondent further argues that it successfully demonstrated by clear and
convincing evidence that Ward would have cancelled the overtime regardless of
whether Complainant had ever engaged in protected activity. Clear and convincing
evidence is that which is “highly probable or reasonably certain.”77 Respondent cites
evidence that Ward did not demonstrate any motivation to retaliate against
Complainant for several years after the EEOC complaint and that the 2017

75

Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 157 (3d Cir.

2013).
76

D. & O. at 30.
DeFrancesco v. Union R.R. Co., ARB No. 2013-0057, ALJ No. 2009-FRS00009, slip op. at 8 (ARB Sept. 30, 2015).
77

13
altercation was entirely consistent with his reputation for aggressive behavior and
dislike of being questioned.78 Although this evidence is relevant to whether Ward
would have cancelled the overtime regardless of protected activity, it does not
persuade us to reverse the ALJ’s finding that Respondent failed to meet its
heightened burden for the affirmative defense. Ward’s comment to Complainant
about leaving his name on his next EEOC complaint demonstrated that
Complainant’s protected activity was on Ward’s mind during the incident. We
therefore affirm the ALJ’s finding that Respondent is liable under the FRSA.
2. Damages Award
Respondent contests the ALJ’s economic damages award, which included lost
wages and overtime, a pay differential for the lesser-paying job he obtained, and
medical expenses resulting from his stress condition. A complainant who prevails on
an FRSA discrimination claim “shall be entitled to all relief necessary to make the
employee whole,” including reinstatement to their position, back pay with interest,
and compensatory damages.79 Damages make a complainant whole if they are
“placed in the same position he or she would have been in if no unlawful retaliation
[had] occurred.”80 The Board reviews damages awards for substantial evidence.81
Respondent contends that the record does not demonstrate that the
altercation caused the stress disorder, citing Complainant’s testimony that he was
only “a little stressed” after the incident and evidence that he did not seek medical
help until after the police escort and counseling letter, which were not found to be
retaliatory acts. Respondent also references Dr. Wilson’s testimony, which failed to
state whether the incident had any lasting impact on Complainant’s mental health
or when the symptoms of the stress disorder began.

Respondent’s Br. at 20.
49 U.S.C. § 20109(e)(1).
80
Laidler v. Grand Trunk W. R.R. Co., ARB No. 2015-0087, ALJ No. 2014FRS-00099, slip op. at 13 (ARB Aug. 3, 2017) (quoting 80 Fed. Reg. 69,124 (Nov. 9,
2015)); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 419-20 (1975).
81
See Brough v. BNSF Ry. Co., ARB No. 2016-0089, ALJ No. 2014-FRS00103, slip op. at 15 (ARB June 12, 2019).
78
79

14
As discussed by the ALJ, however, Complainant’s and Dr. Wilson’s testimony
demonstrated that Complainant began suffering from a diagnosed anxiety disorder
that was not present prior to the altercation with Ward.82 Though the record
suggests that subsequent incidents at work, including the written counseling letter,
further contributed to Complainant’s stress, the evidence in the record as a whole
demonstrates that the incident with Ward initiated Complainant’s anxiety, which
worsened and eventually caused him to stop working. In other words, if the
discrimination from Ward had never occurred, Complainant would not have needed
to seek medical treatment and been out of work for a year. Substantial evidence
supports this finding. Thus, we affirm the ALJ’s damages award for loss of wages
and medical expenses made Complainant whole.
Respondent further contests two specific aspects of the damages award. First,
Respondent disputes the award reimbursing Complainant for the liens he took out.
Second, Respondent challenges the ALJ’s order for Respondent to seal the record of
the counseling letter. Respondent argues that neither of those remedies made
Complainant whole.
For the two liens Complainant had taken out to support himself while he was
not receiving income, the ALJ awarded reimbursement of the liens in addition to
the award for lost wages. The lost wages award enabled Complainant to pay back
the liens he took out. By awarding both the lost wages and reimbursement of the
liens, Complainant received a windfall by effectively being able to keep the loans
without having to pay them back himself, which placed him in a better spot than he
would have been if the retaliation had never occurred. The FRSA does not allow
complainants to receive double recoveries.83 The lien award is therefore vacated and
reversed.84

82

D. & O. at 38-39.
Mercier v. Union Pacific R.R. Co., ARB Nos. 2009-0101, -0121, ALJ Nos.
2008-FRS-00001, -00004, slip op. at 8 (ARB Sept. 29, 2011); Fresquez v. BNSF Ry. Co.,
421 F.Supp.3d 1099, 1105 (D. Colo. 2019).
84
Complainant did not address any fees or interest associated with the liens in
his briefings, nor did the ALJ address them in the decision. Thus, we do not consider them
in reviewing the damages award.
83

15
For the written counseling letter, the Board has previously held that an ALJ
may require the employer to seal information regarding discipline an employee
received out of retaliation and prohibit the employer from referencing it in future
personnel actions.85 However, the ALJ did not find that the letter violated FRSA’s
whistleblower statute. The order to seal the letter does not put Complainant in the
position he would have been in if Ward had not retaliated against him. We therefore
reverse this order as well.86
3. Punitive Damages Award
Respondent appeals the ALJ’s decision to award punitive damages and the
amount awarded. In addition to damages to make a complainant whole, the FRSA
permits an ALJ to award up to $250,000 in punitive damages.87 Under the “reckless
disregard standard,” an ALJ may award punitive damages if the employer acted
“[w]ith malice or ill will or with knowledge that its actions violated federal law or
with reckless disregard or callous indifference to the risk that its actions violated
federal law.”88 We have previously held that punitive damages are awarded to
punish defendants for their conduct and deter them and others from subsequent
similar conduct.89 The ALJ’s finding regarding whether the employer acted with the
requisite intent is reviewed for substantial evidence.90
Respondent argues that the disclosure of Complainant’s identity as a
whistleblower and the altercation with Ward were “one-off” occurrences and were
85

Brough, ARB No. 2016-0089, slip op. at 18-19.
We note that Complainant’s defense of the order is limited to one sentence
in his brief and void of any substantive argument: “Although she found the written
counseling letter not to have been causally related to [Complainant]’s protected reporting
in 2013, ALJ Timlin concluded that sealing it was required to make [Complainant] whole,
and her decision should be respected.” Complainant’s Brief at 25.
87
49 U.S.C. § 20109(e)(3).
88
Pan Am Rys., Inc. v. U.S. Dep’t of Labor, 855 F.3d 29, 38 (1st Cir. 2017).
89
Jackson v. Union Pacific R.R. Co., ARB No. 2013-0042, ALJ No. 2012-FRS00017, slip op. at 6 (ARB Mar. 20, 2015).
90
Riddell v. CSX Transp., Inc., ARB No. 2019-0016, ALJ No. 2014-FRS00054, slip op. at 22 (ARB May 19, 2020).
86

16
not condoned by management. Respondent also adds that Complainant was never
discouraged enough not to file complaints with EEOC and OSHA and that the police
escort, which the ALJ cited in support of its award, was not found to be connected to
any protected activity.
First, the argument that punitive damages were not warranted because
Complainant was still able to file complaints is unavailing, as punitive damages are
not awarded based on whether or not the employee yields to the employer’s
wrongful conduct. Second, substantial evidence supports the ALJ’s finding that “it
is part of Amtrak’s culture to recklessly disregard a complainant’s privacy when he
or she engages in protected activity or other confidential reporting.”91 The record
demonstrates that Ward was apprised of Complainant’s safety and EEOC
complaints as a result of a workplace culture that disregards complainant
anonymity, which led to the altercation and Ward’s retaliation against
Complainant. Testimony from managers for Respondent demonstrated lack of care
or ambivalence toward complainant confidentiality at the workplace.92 The ALJ did
not find that Amtrak’s police escort was an adverse action, in large part because the
record does not establish who called the police. However, the ALJ observed that
obviously “someone from Amtrak called the police, and Amtrak managers allowed
the police to publicly escort a union representative to and from discussions about an
incident with an Amtrak manager; in effect, publicly harassing [and humiliating]
Complainant for doing his job as a union representative.”93 As the ALJ found,
“[n]othing in the record established a legitimate reason for police presence at the
meeting.”94 The ALJ also found that the police escort demonstrated a problematic
part of Respondent’s culture relating to protected activity, as the incident could
have had a chilling effect on other workers.95

91

D. & O. at 41.
In response to a question as to how he knew that Complainant made several
anonymous complaints, Ward answered: “I’m going to put this so I don’t–it’s the railroad.”
Tr. 198. In response to a question of whether a manager was supposed to disclose a
complainant’s identity, Mitchell only responded: “I guess not.” Tr. at 221-22.
93
D. & O. at 41.
94
Id. at 27 n.43 (citing Tr. at 30).
95
Id. at 41-42.
92

17
We conclude substantial evidence in the record supports the ALJ’s conclusion
that the “culture of Amtrak, when taken in its totality, amounts to a reckless
disregard for the rights of both Complainant and any other potential would-be
complainants.”96 The ALJ’s decision to award punitive damages, therefore, is
affirmed.
Respondent further contests the amount awarded to Complainant because
the ALJ failed to provide the method used to arrive at the $35,000 award and that
the ALJ’s reference to several cases awarding various punitive damages amounts
failed to discuss which cases applied to the current matter.97 We conclude the ALJ
did not abuse her discretion in determining the amount.98
CONCLUSION
Accordingly, we VACATE and REVERSE the ALJ’s award of compensation
for the liens and sealing of the counseling letter but AFFIRM all other aspects of
the ALJ’s decision.
SO ORDERED.

96

Id. at 42.
The ALJ cited several previous cases in which the Board affirmed punitive
damages awards ranging from $1,000 to $250,000, including brief parentheticals
describing the employer’s conduct, to demonstrate how punitive damages awards were
determined on a factual basis. Id. at 40.
98
Raye v. Pan Am Rys., Inc., ARB No. 2014-0074, ALJ No. 2013-FRS-00084,
slip op. at 10 (ARB Sept. 8, 2016).
97

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A7b3458becec403eb. Public record. Not legal advice.