FEDERAL RAILROAD SAFETY ACT (“FRSA”)

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WHISTLEBLOWER DIGEST

JUNE 12, 2019

Table of Contents

STATUTE AND REGULATIONS .................................................................................................... 4

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Statute ............................................................................................................................................... 4

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Regulations ....................................................................................................................................... 9

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Statutory and Regulatory History ..................................................................................................... 9

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Retroactive Application................................................................................................................... 10

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Preemption ...................................................................................................................................... 11

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Sovereign Immunity ........................................................................................................................ 13

II.

FILING OF COMPLAINT .......................................................................................................... 13

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Timeliness Generally ...................................................................................................................... 17

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Equitable Tolling ............................................................................................................................ 24

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Timeliness and Removal Provision ................................................................................................. 26

III.

PROCEDURE BEFORE OALJ .................................................................................................. 26

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Amendment of Complaint ................................................................................................................ 29

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Decision and Order......................................................................................................................... 30

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Sanctions / Adverse Inferences ....................................................................................................... 31

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Evidentiary Determinations ............................................................................................................ 31

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Dismissal for Cause ........................................................................................................................ 33

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Summary Decision .......................................................................................................................... 34

•

Witnesses ......................................................................................................................................... 38

•

Remands from ARB ......................................................................................................................... 38

IV.

PROCEDURE BEFORE ARB .................................................................................................... 39

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Briefing ........................................................................................................................................... 41

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Withdrawal of Petition for Review .................................................................................................. 41

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Removal to Federal Court............................................................................................................... 43

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Self-Represented Litigants .............................................................................................................. 44

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Reconsideration .............................................................................................................................. 45

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Standard and Scope of Review ........................................................................................................ 45

ALJ Findings of Fact .................................................................................................................. 45

ALJ Credibility Findings ............................................................................................................ 48

ALJ Evidentiary Rulings............................................................................................................. 49

Punitive Damage Awards............................................................................................................ 50

Dismissal for Cause Review ....................................................................................................... 50

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Timeliness of Petition for Review.................................................................................................... 51

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Substitution of Parties ..................................................................................................................... 55

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Waiver / Forfeiture ......................................................................................................................... 56

REMOVAL TO FEDERAL DISTRICT COURT ......................................................................... 57

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When Removal Is Available ............................................................................................................ 58

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Bad Faith ........................................................................................................................................ 62

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Venue............................................................................................................................................... 64

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Waiver / Laches............................................................................................................................... 64

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Constitutionality of Removal Provision .......................................................................................... 67

•

Dismissal of DOL Complaint, Procedure ....................................................................................... 68

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When DOL Jurisdiction Ends ......................................................................................................... 70

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Notice to DOL of Intent to Remove ................................................................................................. 70

VI.

PROCEDURE BEFORE AND REVIEW BY FEDERAL COURTS ...................................... 72

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Jurisdiction in Interlocutory Appeals ............................................................................................. 73

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Discovery ........................................................................................................................................ 75

•

Party Not Named in Administrative Complaint .............................................................................. 79

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Standard of Review ......................................................................................................................... 80

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Futility of Remand Doctrine ........................................................................................................... 85

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Exhaustion of Administrative Remedies .......................................................................................... 86

•

Collateral Estoppel / Res Judicata.................................................................................................. 91

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Motion to Dismiss ........................................................................................................................... 94

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Short and Plain Statement of the Case............................................................................................ 97

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Evidentiary Determinations ............................................................................................................ 98

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Summary Judgment ......................................................................................................................... 99

•

Motion to Strike Affirmative Defenses .......................................................................................... 127

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Motion for Reconsideration .......................................................................................................... 129

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Post-Trial Motions ........................................................................................................................ 130

•

Award of Costs .............................................................................................................................. 134

VII.

PRIMA FACIE CASE AND BURDEN SHIFTING ANALYSIS ........................................... 136

VIII.

PROTECTED ACTIVITY ..................................................................................................... 155

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20109(a) Protected Activity .......................................................................................................... 155

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20109(b): Hazardous Safety or Security Conditions .................................................................... 168

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Good Faith / Reasonable Belief .................................................................................................... 180

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20109(c)(2): Requesting Treatment or Following Treatment Plan .............................................. 192

IX.

ADVERSE ACTION .................................................................................................................. 205

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In General ..................................................................................................................................... 205

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Specific Conduct ........................................................................................................................... 212

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Charge Letter / Investigation / Caution ..................................................................................... 212

Hostile Work Environment ....................................................................................................... 215

Record Suspension .................................................................................................................... 216

Threats / Threatened Discipline ................................................................................................ 217

Unpaid Leave ............................................................................................................................ 219

Working Conditions .................................................................................................................. 220

Adverse Action and Summary Decision ........................................................................................ 220

CAUSATION / CONTRIBUTING FACTOR .............................................................................. 223

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Contributing Factor Generally ..................................................................................................... 223

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Respondent's Knowledge............................................................................................................... 263

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Chain of Events / Inextricable Intertwinement.............................................................................. 271

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Motive, Animus, Intentional Retaliation ....................................................................................... 288

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Temporal Proximity ...................................................................................................................... 310

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Stated Reason For Discipline ....................................................................................................... 322

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Fairness of Discipline ................................................................................................................... 322

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“Cat’s Paw” Theory ..................................................................................................................... 323

•

Admission of Misconduct .............................................................................................................. 325

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Summary Decision on Contributory Factor.................................................................................. 326

XI.

AFFIRMATIVE DEFENSE / CLEAR AND CONVINCING EVIDENCE STANDARD ... 354

XII.

20109(c)(1) CASES: PROHIBITION OF INTERFERENCE WITH TREATMENT .......... 388

XIII.

DAMAGES AND OTHER REMEDIES ............................................................................... 397

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Reinstatement ................................................................................................................................ 398

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Expungement / Sealing Records.................................................................................................... 400

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Back Pay ....................................................................................................................................... 401

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Front Pay ...................................................................................................................................... 404

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Interest .......................................................................................................................................... 406

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Compensatory Damages ............................................................................................................... 407

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Punitive Damages ......................................................................................................................... 412

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Attorneys’ Fees and Costs............................................................................................................. 429

XIV.

DISMISSALS, WITHDRAWALS, AND SETTLEMENTS ............................................... 437

XV.

20109(f): ELECTION OF REMEDIES .................................................................................... 444

XVI.

BANKRUPTCY ...................................................................................................................... 458

[Editor’s Note: The digest is organized topically and sub-topically. Within each sub-topic, sections for the statute,

regulations, cases from the Federal Courts of Appeals, cases from the Federal District Courts, and cases from the

U.S. Department of Labor Administrative Review Board are listed in separate sections, as applicable. Cases are

organized in reverse chronological order, and are included regardless of their current status as “good law.”

Subsequent editorial notes attempt to flag decisions that may have been reversed or where the legal rule has

significantly changed. Researchers, however, should take care to verify the current status of cases included below.]

STATUTE AND REGULATIONS

• Statute

Federal Railroad Safety Act, 49 U.S.C. § 20109, as amended by Section 1521 of the

Implementing Recommendations of the 9/11 Commission Act of 2007 ("9/11 Act"), Pub. L. No.

110-53. (Aug. 3, 2007)

U.S. Code: 49 U.S.C. § 20109

Public Law: P.L. 110-53, § 1521, 121 Stat. 444 (Aug. 3, 2007); P.L. 110-432, 122 Stat. 4892,

Div. A, Title IV, section 419 (Oct. 16, 2008)

49 U.S.C. § 20109: Employee Protections (Current through PL 116-8, approved 3/8/19)

(a) In general. A railroad carrier engaged in interstate or foreign commerce, a contractor or a

subcontractor of such a railroad carrier, or an officer or employee of such a railroad carrier, 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 the employee's lawful, good faith

act done, or perceived by the employer to have been done or about to be done-(1) to provide information, directly cause information to be provided, or otherwise

directly assist in any investigation regarding any conduct which the employee reasonably

believes constitutes a violation of any Federal law, rule, or regulation relating to railroad

safety or security, or gross fraud, waste, or abuse of Federal grants or other public funds

intended to be used for railroad safety or security, if the information or assistance is

provided to or an investigation stemming from the provided information is conducted by(A) a Federal, State, or local regulatory or law enforcement agency (including an

office of the Inspector General under the Inspector General Act of 1978 (5 U.S.C.

App.; Public Law 95-452);

(B) any Member of Congress, any committee of Congress, or the Government

Accountability Office; or

who has the authority to investigate, discover, or terminate the misconduct;

(2) to refuse to violate or assist in the violation of any Federal law, rule, or regulation

relating to railroad safety or security;

(3) to file a complaint, or directly cause to be brought a proceeding related to the

enforcement of this part or, as applicable to railroad safety or security, chapter 51 or 57 of

this title [49 USCS §§ 5101 et seq. or 5701 et seq.], or to testify in that proceeding;

(4) to notify, or attempt to notify, the railroad carrier or the Secretary of Transportation

of a work-related personal injury or work-related illness of an employee;

(5) to cooperate with a safety or security investigation by the Secretary of

Transportation, the Secretary of Homeland Security, or the National Transportation

Safety Board;

(6) to furnish information to the Secretary of Transportation, the Secretary of Homeland

Security, the National Transportation Safety Board, or any Federal, State, or local

regulatory or law enforcement agency as to the facts relating to any accident or incident

resulting in injury or death to an individual or damage to property occurring in

connection with railroad transportation; or

(7) to accurately report hours on duty pursuant to chapter 211 [49 USCS §§ 21101 et

seq.].

(b) Hazardous safety or security conditions.

(1) A railroad carrier engaged in interstate or foreign commerce, or an officer or

employee of such a railroad carrier, shall not discharge, demote, suspend, reprimand, or

in any other way discriminate against an employee for-(A) reporting, in good faith, a hazardous safety or security condition;

(B) refusing to work when confronted by a hazardous safety or security condition

related to the performance of the employee's duties, if the conditions described in

paragraph (2) exist; or

structures, if the employee is responsible for the inspection or repair of the

equipment, track, or structures, when the employee believes that the equipment,

track, or structures are in a hazardous safety or security condition, if the

conditions described in paragraph (2) exist.

(2) A refusal is protected under paragraph (1)(B) and (C) if-(A) the refusal is made in good faith and no reasonable alternative to the refusal

is available to the employee;

(B) a reasonable individual in the circumstances then confronting the employee

would conclude that-(i) the hazardous condition presents an imminent danger of death or

serious injury; and

(ii) the urgency of the situation does not allow sufficient time to eliminate

the danger without such refusal; and

existence of the hazardous condition and the intention not to perform further

work, or not to authorize the use of the hazardous equipment, track, or structures,

unless the condition is corrected immediately or the equipment, track, or

structures are repaired properly or replaced.

(3) In this subsection, only paragraph (1)(A) shall apply to security personnel employed

by a railroad carrier to protect individuals and property transported by railroad.

(1) Prohibition. A railroad carrier or person covered under this section may not deny,

delay, or interfere with the medical or first aid treatment of an employee who is injured

during the course of employment. If transportation to a hospital is requested by an

employee who is injured during the course of employment, the railroad shall promptly

arrange to have the injured employee transported to the nearest hospital where the

employee can receive safe and appropriate medical care.

(2) Discipline. A railroad carrier or person covered under this section may not discipline,

or threaten discipline to, an employee for requesting medical or first aid treatment, or for

following orders or a treatment plan of a treating physician, except that a railroad carrier's

refusal to permit an employee to return to work following medical treatment shall not be

considered a violation of this section if the refusal is pursuant to Federal Railroad

Administration medical standards for fitness of duty or, if there are no pertinent Federal

Railroad Administration standards, a carrier's medical standards for fitness for duty. For

purposes of this paragraph, the term "discipline" means to bring charges against a person

in a disciplinary proceeding, suspend, terminate, place on probation, or make note of

reprimand on an employee's record.

(d) Enforcement action.

(1) In general. An employee who alleges discharge, discipline, or other discrimination in

violation of subsection (a), (b), or (c) of this section, may seek relief in accordance with

the provisions of this section, with any petition or other request for relief under this

section to be initiated by filing a complaint with the Secretary of Labor.

(2) Procedure.

(A) In general. Any action under paragraph (1) shall be governed under the rules

and procedures set forth in section 42121(b) [49 USCS § 42121(b)], including:

(i) Burdens of proof. Any action brought under [subsection] (d)(1) shall

be governed by the legal burdens of proof set forth in section 42121(b) [49

USCS § 42121(b)].

(ii) Statute of limitations. An action under paragraph (1) shall be

commenced not later than 180 days after the date on which the alleged

violation of subsection (a), (b), or (c) of this section occurs.

(iii) Civil actions to enforce. If a person fails to comply with an order

issued by the Secretary of Labor pursuant to the procedures in section

42121(b) [49 USCS § 42121(b)], the Secretary of Labor may bring a civil

action to enforce the order in the district court of the United States for the

judicial district in which the violation occurred, as set forth in [section]

42121 [49 USCS § 42121].

(B) Exception. Notification made under section 42121(b)(1) [49 USCS §

42121(b)(1)] shall be made to the person named in the complaint and the person's

employer.

(3) De novo review. With respect to a complaint under paragraph (1), if the Secretary of

Labor has not issued a final decision within 210 days after the filing of the complaint and

if the delay is not due to the bad faith of the employee, the employee may bring an

original action at law or equity for de novo review in the appropriate district court of the

United States, which shall have jurisdiction over such an action without regard to the

amount in controversy, and which action shall, at the request of either party to such

action, be tried by the court with a jury.

(4) Appeals. Any person adversely affected or aggrieved by an order issued pursuant to

the procedures in section 42121(b) [49 USCS § 42121(b)][,] may obtain review of the

order in the United States court of appeals for the circuit in which the violation, with

respect to which the order was issued, allegedly occurred or the circuit in which the

complainant resided on the date of such violation. The petition for review must be filed

not later than 60 days after the date of the issuance of the final order of the Secretary of

Labor. The review shall conform to chapter 7 of title 5 [5 USCS §§ 701 et seq.]. The

commencement of proceedings under this paragraph shall not, unless ordered by the

court, operate as a stay of the order.

(e) Remedies.

(1) In general. An employee prevailing in any action under subsection (d) shall be

entitled to all relief necessary to make the employee whole.

(2) Damages. Relief in an action under subsection (d) (including an action described in

subsection (d)(3)) shall include-(A) reinstatement with the same seniority status that the employee would have

had, but for the discrimination;

(B) any backpay, with interest; and

sustained as a result of the discrimination, including litigation costs, expert

witness fees, and reasonable attorney fees.

(3) Possible relief. Relief in any action under subsection (d) may include punitive

damages in an amount not to exceed $ 250,000.

(f) Election of remedies. An employee may not seek protection under both this section and

another provision of law for the same allegedly unlawful act of the railroad carrier.

(g) No preemption. Nothing in this section preempts or diminishes any other safeguards against

discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or

any other manner of discrimination provided by Federal or State law.

(h) Rights retained by employee. Nothing in this section shall be deemed to diminish the rights,

privileges, or remedies of any employee under any Federal or State law or under any collective

bargaining agreement. The rights and remedies in this section may not be waived by any

agreement, policy, form, or condition of employment.

(i) Disclosure of identity.

(1) Except as provided in paragraph (2) of this subsection, or with the written consent of

the employee, the Secretary of Transportation or the Secretary of Homeland Security may

not disclose the name of an employee of a railroad carrier who has provided information

about an alleged violation of this part or, as applicable to railroad safety or security,

chapter 51 or 57 of this title [49 USCS §§ 5101 et seq. or 5701 et seq.], or a regulation

prescribed or order issued under any of those provisions.

(2) The Secretary of Transportation or the Secretary of Homeland Security shall disclose

to the Attorney General the name of an employee described in paragraph (1) if the matter

is referred to the Attorney General for enforcement. The Secretary making such

disclosures shall provide reasonable advance notice to the affected employee if disclosure

of that person's identity or identifying information is to occur.

(j) Process for reporting security problems to the Department of Homeland Security.

(1) Establishment of process. The Secretary of Homeland Security shall establish

through regulations, after an opportunity for notice and comment, a process by which any

person may report to the Secretary of Homeland Security regarding railroad security

problems, deficiencies, or vulnerabilities.

(2) Acknowledgment of receipt. If a report submitted under paragraph (1) identifies the

person making the report, the Secretary of Homeland Security shall respond promptly to

such person and acknowledge receipt of the report.

(3) Steps to address problem. The Secretary of Homeland Security shall review and

consider the information provided in any report submitted under paragraph (1) and shall

take appropriate steps to address any problems or deficiencies identified.

• Regulations

Code of Federal Regulations: 29 C.F.R. Part 1982

Federal Register:

Final Rule 80 Fed. Reg. 69115 (Nov. 9, 2015)

Interim Final Rule, 75 Fed. Reg. 53521 (Aug. 31, 2010)

• Statutory and Regulatory History

On August 10, 2007, President George W. Bush signed “The Implementing Recommendations

of the 9/11 Commission Act of 2007,” designated as Public Law No: 110-053. The 9/11 Act was

the result of a Conference Report, H.R. Rep. 110-259 (July 25, 2007) (Conf. Rep.). Section 1521

of the 9/11 Act amends the FRSA by modifying the railroad carrier employee whistleblower

provision section both expanding what constitutes protected activity and enhancing

administrative and civil remedies for employees to mirror those found in the Wendell H. Ford

Aviation Investment and Reform Act for the 21st Century (“AIR21”), 49 U.S.C. §42121.

Additionally, the amended FRSA Section 20109 will follow the AIR21 procedure for

adjudication at the Department of Labor.

The FRSA prohibits a railroad carrier engaged in interstate or foreign commerce, a contractor or

subcontractor of such a carrier, or an officer or employee of such a carrier, from discharging or

otherwise discriminating against an employee because he or she (1) provides or is about to

provide information, or otherwise directly assists in an investigation regarding conduct that the

individual believes is a violation of a federal law, rule, or regulation relating to railroad safety or

security, or constitutes gross fraud, waste, or abuse of a federal grant or other public funds

intended to be used for railroad safety or security, if the information or assistance is provided to

specified government entities or a person with supervisory authority over the employee; (2)

refuses to violate or assist in the violation a federal law, rule, or regulation related to railroad

safety or security; (3) files a complaint, causes a proceeding to enforce the FRSA or railroad

safety or security, or testifies in that proceeding; (4) notifies or attempts to notify the railroad

carrier or the Secretary of Transportation of a work-related personal injury or work-related

illness of an employee; (5) cooperates with a safety or security investigation by the Secretary of

Transportation, the Secretary of Homeland Security, or the National Transportation Safety

Board; (6) furnishes information to specified entities related to an railroad accident or incident

resulting in injury or death to an individual or damage to property; or (7) accurately reports hours

on duty pursuant to the Hours of Service Act. 49 U.S.C. § 20109(a).

In addition, a railroad carrier engaged in interstate or foreign commerce, or an officer or

employee of such a carrier, may not discharge or otherwise discriminate against an employee for

(1) reporting, in good faith, a hazardous safety or security condition; (2) refusing to work when

confronted by a hazardous safety or security issue, if certain conditions exist; or (3) refusing to

authorize the use of safety-related equipment, track, or structures, if the employee is responsible

for the inspection or repair of such items and believes that they are in a hazardous safety or

security state. 49 U.S.C. § 20109(b).

•

Retroactive Application

U.S. Circuit Court of Appeals Decisions

RETROACTIVITY; SUMMARY JUDGMENT; EIGHTH CIRCUIT DECLINES TO

APPLY FRSA AMENDMENTS RETROACTIVELY TO COVER EVENTS IN 2006,

AFFIRMS SUMMARY JUDGMENT FOR RAILROARD WHERE STATUTE AS IT

EXISTED AT THE TIME OF THE EVENTS DID NOT PROVIDE ENTITLEMENT TO

RELIEF

Purcell v. Union Pac. R.R., 420 Fed. Appx. 650 (8th Cir. July 8, 2011): The Eighth Circuit

summarily affirmed summary judgment in a railroad in an FRSA case on the grounds that the

statute as it existed in 2006, when the relevant events happened, did not provide entitlement to

relief on the complaint. It also “decline[d] [plaintiff’s] invitation to retroactively apply a

subsequent amendment to the statute.

DOL Administrative Review Board Decisions

RETROACTIVE APPLICATION OF FRSA SECTION 20109(c)(2) IS NOT

IMPLICATED WHERE, ALTHOUGH A DISCIPLINARY CHARGE LETTER WAS

ISSUED PRIOR TO THE ENACTMENT OF SECTION 20109(c)(2), THE

COMPLAINANT DID NOT EXPERENCE AN ADVERSE ACTION UNTIL HIS LATER

SUSPENSION FOLLOWING A DISCIPLINARY HEARING

In Bala v. Port Authority Trans-Hudson Corp., ARB No. 12-048, ALJ No. 2010-FRS-26 (ARB

Sept. 27, 2013), the Respondent argued that a July 14, 2008 Disciplinary Charge Letter which

charged the Complainant with violation of the Respondent's attendance policy, preceded the date

of enactment of FRSA Section 20109(c)(2), October 16, 2008, and thus the statute could not be

applied retroactively. The ARB held that

“This is not a case involving retroactive application of a statute. While the

charging letter informing [the Complainant] of disciplinary proceedings was dated

July 2008, [the Complainant] did not experience an adverse action until January

2009, when [the Respondent] suspended him immediately following a

disciplinary hearing. 49 U.S.C.A. § 20109(a); DeFrancesco v. Union R.R. Co.,

ARB No. 10-114, ALJ No. 2009-FRS-009 (ARB Feb. 29, 2012) (suspension

constitutes an adverse action under FRSA). Since [the Complainant] was not

disciplined until three months after the statute was enacted, there is no issue in

this case pertaining to retroactivity.”

USDOL/OALJ Reporter at 16.

•

Preemption

Statute

49 U.S.C. § 20109

(g) No preemption. Nothing in this section preempts or diminishes any other safeguards against

discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or

any other manner of discrimination provided by Federal or State law.

U.S. Circuit Court of Appeals Decisions

PREEMPTION; TENTH CIRCUIT AFFIRMS FINDING THAT PRE-2007

AMENDMENT FRSA PREEMPTED STATE LAW CLAIM FOR WRONGFUL

TERMINATION IN VIOLATION OF PUBLIC POLICY PREMISED ON A CLAIM OF

RETALIATION WITHIN THE SCOPE OF THE FRSA, BUT ADDS THAT

AMENDMENTS ADDED A “NO PREMPTION” PROVISION (49 U.S.C. § 20109(g))

THAT WOULD CHANGE THE RESULT

Abbott v. BNSF Ry. Co., 383 Fed. Appx. 703 (10th Cir. 2010): Plaintiff filed a suit alleging

retaliatory discharge in violation of public policy and breach of contract in state court.

Plaintiff had been employed by Defendant since 1979 and in 2006 was promoted to general

director of railroad training services. He became aware that a vice-president who maintained an

engineering license and needed to be recertified had conspired with another employee to obscure

the security cameras so that the other employee could take the recertification test on the vicepresident’s behalf. This was reported, and led to the retirement of the vice-president and salary

grade reduction for the other employee. Later that year issues were raised about Plaintiff’s

performance, which led in 2007 to his removal from a salaried position. He stayed with the

railroad by exercising union seniority rights to take an engineering position. There was no FRSA

complaint—rather, Plaintiff

Defendant railroad removed the suit to federal court, claiming both diversity jurisdiction and

federal question jurisdiction on the grounds that the FRSA preempted the state causes of action.

The district granted a motion to dismiss the retaliatory discharge claim, agreeing that it was

preempted by the FRSA. The district court later granted summary judgment to the railroad on

the contract claim on other grounds. Plaintiff appealed.

The Tenth Circuit affirmed. The amendments to the current version of the FRSA became

effective in August 2007, after the date that Plaintiff was effectively demoted. The amendments

added 49 U.S.C. § 20109(g): “No preemption. Nothing in this sections preempts or diminishes

any other safeguards against discrimination, demotion, discharge, suspension, threats,

harassment, reprimand, retaliation, or any other manner of discrimination provided by Federal or

State law.” But the Tenth Circuit agreed with the district court that the FRSA as it existed before

this addition did preempt the state law claim. Plaintiff argued that since the FRSA as it existed

had incorporated the Railway Labor Act, and it was established that the Railway Labor Act did

not preempt state law claims of this sort, the same result should follow. But the Tenth Circuit

disagreed, noting that the FRSA as it existed at the relevant time only adopted the dispute

resolution mechanisms of the Railway Labor Act. Preemption is a question of federal intent, and

the district court’s conclusion that the intent with the earlier version of the FRSA was to preempt state law claims for violations of railway safety was sound.

The Tenth Circuit added: “Congress later decided not to preempt state law claims like

[Plaintiff’s] claim for wrongful discharge, so our holding will likely have little effect in future

cases.”

•

Sovereign Immunity

U.S. District Court Decisions

SOVEREIGN IMMUNITY; CONGRESS DID NOT ABROGATE SOVEREIGN

IMMUNITY IN THE FRSA

Flakker v. New Jersey Transit Rail Operations, Inc., No. 18-cv-1046 (E.D. Pa. June 18, 2018)

(2018 U.S. Dist. LEXIS 101272; 2018 WL 3029258) (Memorandum): Plaintiff filed an FRSA

complaint against his employer, New Jersey Transit Rail Operations, alleging that it retaliated

against him for reporting a work-related injury. Defendant filed a motion for judgment on the

pleadings on the grounds that it was immune from suit under the Eleventh Amendment. The

Third Circuit Court of Appeals had recently held that NJ Transit was an arm of the state and thus

immune from suit under the Eleventh Amendment. There was no dispute that the Defendant was

part of NJ Transit. The court further determined that Congress did not abrogate sovereign

immunity for the Whistleblower Provision of the Federal Railroad Safety Act. And it found that

sovereign immunity had not been waived in this case. It thus granted the motion and issued

judgment on the pleadings to Defendant.

II.

FILING OF COMPLAINT

Statute

49 U.S.C. § 20109

(d) Enforcement action.

(1) In general. An employee who alleges discharge, discipline, or other discrimination in

violation of subsection (a), (b), or (c) of this section, may seek relief in accordance with

the provisions of this section, with any petition or other request for relief under this

section to be initiated by filing a complaint with the Secretary of Labor.

Regulations

29 C.F.R. § 1982.103: Filing of retaliation complaints.

(a) Who may file. An employee who believes that he or she has been retaliated against in

violation of NTSSA or FRSA may file, or have filed by any person on the employee's behalf, a

complaint alleging such retaliation.

(b) Nature of filing. No particular form of complaint is required. A complaint may be filed

orally or in writing. Oral complaints will be reduced to writing by OSHA. If the complainant is

unable to file the complaint in English, OSHA will accept the complaint in any language.

enforcement activities in the geographical area where the employee resides or was employed, but

may be filed with any OSHA officer or employee. Addresses and telephone numbers for these

officials are set forth in local directories and at the following Internet address:

http://www.osha.gov.

[Sub-section (d) omitted (see below)]

29 C.F.R. § 1982.104: Investigation

(a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent

of the filing of the complaint, of the allegations contained in the complaint, and of the substance

of the evidence supporting the complaint. Such materials will be redacted, if necessary,

consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.

OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section

and §1982.110(e). OSHA will provide an unredacted copy of these same materials to the

complainant (or the complainant's legal counsel if complainant is represented by counsel), and to

the Federal Railroad Administration, the Federal Transit Administration, or the Transportation

Security Administration as appropriate.

(b) Within 20 days of receipt of the notice of the filing of the complaint provided under

paragraph (a) of this section, the respondent may submit to OSHA a written statement and any

affidavits or documents substantiating its position. Within the same 20 days, the respondent may

request a meeting with OSHA to present its position.

the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the

whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to

the other party, OSHA will provide them to the other party (or the party's legal counsel if the

party is represented by counsel) at a time permitting the other party an opportunity to respond.

Before providing such materials to the other party, OSHA will redact them, if necessary,

consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.

OSHA will also provide each party with an opportunity to respond to the other party's

submissions.

(d) Investigations will be conducted in a manner that protects the confidentiality of any

person who provides information on a confidential basis, other than the complainant, in

accordance with part 70 of this title.

(e)(1) A complaint will be dismissed unless the complainant has made a prima facie

showing that protected activity was a contributing factor in the adverse action alleged in the

complaint.

(2) The complaint, supplemented as appropriate by interviews of the complainant, must

allege the existence of facts and evidence to make a prima facie showing as follows:

(i) The employee engaged in a protected activity (or, in circumstances covered by

NTSSA and FRSA, was perceived to have engaged or to be about to engage in protected

activity);

(ii) The respondent knew or suspected that the employee engaged in the protected

activity (or, in circumstances covered by NTSSA and FRSA, perceived the employee to

have engaged or to be about to engage in protected activity);

(iii) The employee suffered an adverse action; and

(iv) The circumstances were sufficient to raise the inference that the protected

activity (or perception thereof) was a contributing factor in the adverse action.

(3) For purposes of determining whether to investigate, the complainant will be

considered to have met the required burden if the complaint on its face, supplemented as

appropriate through interviews of the complainant, alleges the existence of facts and either direct

or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the

respondent knew or suspected that the employee engaged in protected activity (or, in

circumstances covered by NTSSA and FRSA, perceived the employee to have engaged or to be

about to engage in protected activity), and that the protected activity (or perception thereof) was

a contributing factor in the adverse action. The burden may be satisfied, for example, if the

complaint shows that the adverse action took place shortly after the protected activity, or at the

first opportunity available to the respondent, giving rise to the inference that it was a contributing

factor in the adverse action. If the required showing has not been made, the complainant (or the

complainant's legal counsel if complainant is represented by counsel) will be so notified and the

investigation will not commence.

(4) Notwithstanding a finding that a complainant has made a prima facie showing, as

required by this section, further investigation of the complaint will not be conducted if the

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

adverse action in the absence of the complainant's protected activity.

(5) If the respondent fails to make a timely response or fails to satisfy the burden set forth

in the prior paragraph, OSHA will proceed with the investigation. The investigation will proceed

whenever it is necessary or appropriate to confirm or verify the information provided by the

respondent.

(f) Prior to the issuance of findings and a preliminary order as provided for in §1982.105, if

OSHA has reasonable cause, on the basis of information gathered under the procedures of this

part, to believe that the respondent has violated NTSSA or FRSA and that preliminary

reinstatement is warranted, OSHA will contact the respondent (or the respondent's legal counsel

if respondent is represented by counsel) to give notice of the substance of the relevant evidence

supporting the complainant's allegations as developed during the course of the investigation. This

evidence includes any witness statements, which will be redacted to protect the identity of

confidential informants where statements were given in confidence; if the statements cannot be

redacted without revealing the identity of confidential informants, summaries of their contents

will be provided. The complainant will also receive a copy of the materials that must be provided

to the respondent under this paragraph. Before providing such materials, OSHA will redact them,

if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable

confidentiality laws. The respondent will be given the opportunity to submit a written response,

to meet with the investigators, to present statements from witnesses in support of its position, and

to present legal and factual arguments. The respondent must present this evidence within 10

business days of OSHA's notification pursuant to this paragraph, or as soon afterwards as OSHA

and the respondent can agree, if the interests of justice so require.

29 C.F.R. § 1982.105: Issuance of findings and preliminary orders.

(a) After considering all the relevant information collected during the investigation, the

Assistant Secretary will issue, within 60 days of filing of the complaint, written findings as to

whether or not there is reasonable cause to believe that the respondent has retaliated against the

complainant in violation of NTSSA or FRSA.

(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a

violation has occurred, the Assistant Secretary will accompany the findings with a preliminary

order providing relief to the complainant. The preliminary 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 preliminary 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 preliminary order may also require the respondent to pay punitive

damages up to $250,000.

(2) If the Assistant Secretary concludes that a violation has not occurred, the Assistant

Secretary will notify the parties of that finding.

(b) The findings and, where appropriate, the preliminary order will be sent by certified mail,

return receipt requested, to all parties of record (and each party's legal counsel if the party is

represented by counsel). The findings and, where appropriate, the preliminary order will inform

the parties of the right to object to the findings and/or order and to request a hearing, and of the

right of the respondent under NTSSA to request award of attorney fees not exceeding $1,000

from the administrative law judge (ALJ) regardless of whether the respondent has filed

objections, if the respondent alleges that the complaint was frivolous or brought in bad faith. The

findings and, where appropriate, the preliminary order also will give the address of the Chief

Administrative Law Judge, U.S. Department of Labor. At the same time, the Assistant Secretary

will file with the Chief Administrative Law Judge a copy of the original complaint and a copy of

the findings and/or order.

respondent (or the respondent's legal counsel if the respondent is represented by counsel), or on

the compliance date set forth in the preliminary order, whichever is later, unless an objection

and/or a request for a hearing has been timely filed as provided at §1982.106. However, the

portion of any preliminary order requiring reinstatement will be effective immediately upon the

respondent's receipt of the findings and of the preliminary order, regardless of any objections to

the findings and/or the order.

• Timeliness Generally

Statute

49 U.S.C. § 20109

(d) Enforcement action.

…

(2) Procedure.

(A) In general. Any action under paragraph (1) shall be governed under the rules

and procedures set forth in section 42121(b) [49 USCS § 42121(b)], including:

…

(ii) Statute of limitations. An action under paragraph (1) shall be

commenced not later than 180 days after the date on which the alleged

violation of subsection (a), (b), or (c) of this section occurs.

Regulations

29 C.F.R. § 1982.103

…

(d) Time for Filing. Within 180 days after an alleged violation of NTSSA or FRSA

occurs, any employee who believes that he or she has been retaliated against in violation of

NTSSA or FRSA may file, or have filed by any person on the employee's behalf, a complaint

alleging such retaliation. The date of the postmark, facsimile transmittal, electronic

communication transmittal, telephone call, hand-delivery, delivery to a third-party commercial

carrier, or in-person filing at an OSHA office will be considered the date of filing. The time for

filing a complaint may be tolled for reasons warranted by applicable case law. For example,

OSHA may consider the time for filing a complaint equitably tolled if a complainant mistakenly

files a complaint with another agency instead of OSHA within 180 days after becoming aware of

the alleged violation.

U.S. Circuit Court of Appeals Decisions

TIMELINESS OF ADMINISTRATIVE COMPLAINT; SEVENTH CIRCUIT AFFIRMS

DISTRICT COURT’S HOLDING THAT CLOCK STARTS RUNNING FOR FRSA’S

STATUTORY FILING DEADLINE ON THE DATE THAT COMPLAINANT BECAME

AWARE OF THE ADVERSE ACTION

TIMELINESS OF ADMINISTRATIVE COMPLAINT; SEVENTH CIRCUIT AFFIRMS

DISTRICT COURT’S HOLDING THAT, FOR PURPOSES OF FRSA’S STATUTORY

FILING DEADLINE, RENEWING REQUESTS THAT RESPONDENT PAY FOR

MEDICAL EXPENSES THAT IT HAS ALREADY DECLINED DOES NOT RESET THE

CLOCK

In Sweatt v. Union Pacific Railroad Co., No. 16-1236 (7th Cir. Mar. 6, 2017) (2017 U.S. App.

LEXIS 3761; 2017 WL 903527) (unpublished) (case below N.D. Ill. No. 14-cv-7891), the

Seventh Circuit affirmed the District Court’s grant of summary judgment for Respondent,

finding that Complainant did not exhaust his administrative remedies under the FRSA before

filing suit. Sweatt, slip op. at 1. Complainant requested that his employer, Respondent, pay for

surgery for his carpal tunnel syndrome, which his doctor asserted was work-related. Id. at 2.

Complainant filed a complaint with OSHA alleging a violation of FRSA, 49 U.S.C. §

20109(c)(1) and Complainant subsequently used the kick-out provision of FRSA to bring the suit

in federal court. The District Court found that Complainant “knew by the summer of 2012 that

the company would not pay for his surgery and yet he did not file his administrative complaint

until January 2014, long after the 180-day deadline” of § 20109(d)(2)(A)(ii). Id. at 2.

U.S. District Court Decisions

COURT DISMISSED FRSA CLAIM FOR LACK OF SUBJECT MATTER

JURISDICTION ON THE GROUND THAT A TIMELY FRSA ADMINISTRATIVE

COMPLAINT HAD NOT BEEN FILED, WHERE PLAINTIFF FAILED TO RESPOND

TO DEFENDANT'S FRCP 12(b) MOTION WITH SUFFICIENT DOCUMENTATION

TO ESTABLISH GROUNDS FOR INVOCATION OF MAILBOX RULE; AFFIDAVIT

OF ATTORNEY INSUFFICIENT WHERE IT WAS NOT ACCOMPANIED BY AN

AFFIDAVIT FROM UNINDENTIFIED PERSON WHO PURPORTEDLY MAILED THE

ADMINISTRATIVE COMPLAINT, AND WHERE PLAINTFF CONCEDED THAT THE

REGULAR LAW OFFICE PROCEDURE WAS NOT FOLLOWED BECAUSE THE

COMPLAINT WAS SENT BY REGULAR MAIL INSTEAD OF CERTIFIED MAIL

AND FAX

Guerra v. Consolidated Rail Corp., 2:17-cv-6497 (D. N.J. June 13, 2018) (2018 U.S. Dist.

LEXIS 98779) (case below 2017-FRS-00047): The Defendant filed a FRCP 12(b)(1) motion for

dismissal based on lack of jurisdiction, contending that the court did not have jurisdiction

because the Plaintiff had not filed a timely FRSA administrative complaint. The Plaintiff did not

challenge whether failure to file a timely complaint would divest the court of subject-matter

jurisdiction, but instead contended that the complaint was timely. The court found, however, that

the Plaintiff failed to present a sufficient sworn affidavit to take advantage of the mailbox rule

presumption. Although the Plaintiff presented an affidavit from his attorney, there was no

affidavit from the unidentified person who would have mailed the administrative complaint.

Moreover, the Plaintiff acknowledged that typical office procedures had not been followed

because the complaint was allegedly sent by regular mail, and not by certified mail and fax. The

court thus granted the motion to dismiss. However, it stated that “[t]o the extent that the pleading

deficiencies identified by this Court can be cured by way of amendment, Plaintiff is hereby

granted thirty (30) days to file an amended pleading.”

TIMELINESS; SUMMARY JUDGMENT; TO BE TIMELY A COMPLAINT MUST BE

FILED WITH OSHA WITHIN 180 DAYS OF AN ADVERSE ACTION; EARLIER

ADVERSE ACTIONS ARE NOT ACTIONABLE, BUT MAY BE USED AS EVIDENCE

IN SUPPORT OF A CLAIM OF RETALIATION IN A TIMELY COMPLAINT

Roop v. Kan. City Southern Ry., No. 16-cv-413 (E.D. Okla. Oct. 26, 2017) (2017 U.S. Dist.

LEXIS 177646; 2017 WL 4844832): Plaintiff alleged that Defendant railroad intimidated,

harassed, and ultimately terminated him in retaliation for the testifying on behalf of another

employee in a FELA proceeding, in violation of the FRSA. Defendant sought summary

judgment on multiple grounds. The district court denied the motion.

The railroad argued that the claim was time-barred. To be actionable, a complaint must be filed

with OSHA within 180 days of the retaliatory action. However, evidence of prior adverse

actions may be used as support for a timely claim. Here only 127 days had passed between the

termination and the complaint, so the complaint for that adverse action was timely. The court

noted that earlier adverse actions that pre-dated the 180 day window would not be actionable.

MOTION TO DISMISS UNDER FRCP 12(b)(1) BASED ON LACK OF TIMELINESS OF

ADMINISTRATIVE COMPLAINT; TIMELINESS OF ADMINISTRATIVE

COMPLAINT IS NOT JURISDICTIONAL, AND THEREFORE A MOTION TO

DISMISS ON THAT BASIS WOULD NEED TO PROCEED UNDER FRCP 12(b)(6)

In King v. Ind. Harbor Belt R.R. Co., No. 15-CV-245 (N.D. Ind. Mar. 23, 2017) (2017 U.S.

Dist. LEXIS 41908; 2017 WL 1089212) (case below 2015-FRS-3), the Defendant filed a motion

to dismiss for lack of jurisdiction based on the contention that the Plaintiff’s DOL FRSA

complaint was filed one day late and that the timeliness of an administrative complaint is

jurisdictional, and therefore the case should be dismissed under FRCP 12(b)(1). The Plaintiff

responded that “the timeliness of an administrative complaint is not a jurisdictional requirement

but an affirmative defense, and that it is thus not suitable to resolution on a motion under Rule 12

when, as here, it depends on evidence outside of the complaint.” Slip op. at 1.

The court referred the motion to a Magistrate Judge who “concluded that the timeliness of an

administrative complaint is not a jurisdictional requirement under the FRSA. A motion to

dismiss on that basis would thus have to proceed under Rule 12(b)(6), which does not permit

consideration of extrinsic materials. [The Magistrate Judge] thus recommended that [the

Defendant’s] motion be denied, without reaching the substance of IHB’s argument that Mr.

King’s administrative complaint was untimely.” Id. at 2. The Defendant “objected to this

recommendation, solely on the basis that the timeliness of an administrative complaint should be

considered jurisdictional.” Id. The court summarized its ruling accepting the Magistrate Judge’s

Report and Recommendation:

The sole question at issue is whether the timely filing of an administrative

complaint is a jurisdictional requirement for suits filed in federal court under the

FRSA. If so, then it can be raised and decided on a motion to dismiss under Rule

12(b)(1) (a motion to dismiss for lack of subject-matter jurisdiction), which

permits consideration of materials extrinsic to the complaint. If not, then [the

Defendant] cannot properly raise this defense on a motion to dismiss under Rule

12, as its arguments depend on evidence outside of the complaint. The [Magistrate

Judge’s] Report and Recommendation found that this requirement is not

jurisdictional. The Court agrees.

Id. at 3. The court noted that the Defendant had “not requested that the Court treat its motion as a

motion for summary judgment should the requirement not be deemed jurisdictional” and the

court declined to treat it as such.

TIMELINESS OF COMPLAINT; DISCRETE ACTS; CLOCK IS NOT RE-SET BY

SECOND REQUEST FOR SURGERY THAT WAS PREVIOUSLY DENIED;

DISTINCTION FROM ISSUING OF PAYCHECKS DISCUSSED IN AMTRAK v.

MORGAN

In Sweatt v. Union Pac. R.R. Co., No. 14-cv-7891 (N.D. Ill. Jan. 12, 2016) (2016 U.S. Dist.

LEXIS 3609; 2016 WL 128036), the District Court granted Defendant’s motion for summary

judgment, holding that Plaintiff had not timely filed his complaint. Specifically, the court found

that the 180-day limitations period for filing a complaint was triggered by Defendant’s first

denial to pay for a surgical procedure, and that Plaintiff could not restart the limitations period by

filing a second request for the same surgery.

Plaintiff Ronald Sweatt claimed that Defendant Union Pacific Railroad Company violated the

Federal Rail Safety Act (FRSA), 49 U.S.C. § 20106 et seq., by refusing his request that the

company pay for surgery to treat his bilateral carpal tunnel syndrome. In a previous case against

Defendant, Sweatt had claimed that Union Pacific was liable under the Federal Employer’s

Liability Act (FELA) for his development of carpal tunnel syndrome. During a November 2013

deposition in the previous case, Sweatt’s treating physician testified that Sweatt’s carpal tunnel

syndrome was a work-related injury. The district court in that case concluded that Sweatt’s

FELA claim was time-barred and granted summary judgment to Union Pacific. See Sweatt, 2014

U.S. Dist. LEXIS 76156, 2014 WL 2536807, at *5-*6. The Seventh Circuit affirmed the decision

on the same basis. Sweatt v. Union Pac. R. Co., 796 F.3d 701, 707-08 (7th Cir. 2015).

Following the physician’s November 2013 deposition, Sweatt again requested that Union Pacific

approve the surgery. Union Pacific provided no formal response to this request, but the parties

agreed that the company consistently maintained its refusal to authorize payment for the

proposed surgery. On January 31, 2014, Sweatt filed a complaint with the Occupational Safety

and Health Administration (OSHA), claiming that Union Pacific’s refusal to approve payment

for the surgery violated the FRSA.

Before the District Court, Union Pacific moved for summary judgment on the basis that Sweatt

failed to file a timely administrative complaint. Sweatt responded that the FRSA’s limitations

period should not be measured from the day Union Pacific denied his initial request for surgery,

but should instead be measured from the day the company denied his subsequent request for the

same surgery. Sweatt detailed that the violation alleged in his complaint was Union Pacific’s

denial of his subsequent request for surgery in November 2013—not the denial in 2012—and

measured from the later denial, his complaint in January 2014 fell well within the limitations

period. In support of his arguments, Sweatt contended that the 2013 denial was the sort of

“discrete act” of discrimination described in AMTRAK v. Morgan, 536 U.S. 101, 113, 122 S. Ct.

2061, 153 L. Ed. 2d 106 (2002).

In response, Union Pacific contended that the discrete act triggering the limitations period was its

denial of his request in 2012. The company stressed that the 180-day limitations period of §

20109(d)(2)(A)(ii) would be meaningless if Sweatt could reset it simply by requesting the same

surgery a second time and again being told “no.”

The court considered Morgan, a Title VII case, and stated that the point of the case was to

distinguish discrete acts from “continuing violations.” The court provided examples of discrete

acts including “termination, failure to promote, denial of transfer, or refusal to hire,” as well the

issuing of individual paychecks that each reflects a policy of discrimination. The court agreed

with Union Pacific’s argument that its 2012 denial of Sweatt’s request for surgery triggered the

180-day limitations period, and that the denial of his 2013 request for the same surgery to treat

the same injury did not restart it. The court found that the 2013 denial of Sweatt’s second request

for the same surgery could not be viewed as a “discrete act” within the meaning of Morgan.

Unlike individual paychecks or the other acts discussed in Morgan, the denial of Sweatt’s second

request for the same surgery did not injure him afresh. Rather, the second denial changed

nothing, and although Sweatt may have been worse off the longer he was without treatment, a

“lingering effect of an unlawful act is not itself an unlawful act . . . so it does not revive an

already time-barred illegality.”

The court found that Sweatt’s situation was instead analogous to the situation presented in Brown

v. Unified School District 501, Topeka Public Schools, 465 F.3d 1184, 1186 (10th Cir. 2006), a

Title VII case, where the plaintiff was fired from his position as a physical education teacher and

then asked the school district to rehire him. In Brown, the school district informed the Plaintiff

unequivocally that it would not consider him for rehire. Plaintiff filed an EEOC charge about this

refusal, but he did not file a lawsuit within the 90-day limitations period after receiving his rightto-sue notice. Instead, he again asked the district to rehire him, and the district again refused. He

then filed a new EEOC charge and, upon receiving a second right-to-sue notice, filed a lawsuit.

The Tenth Circuit held that the plaintiff’s lawsuit was untimely because the evidence showed

that district’s most recent refusal was a “mere reiteration” of the earlier refusal.

The court concluded that Union Pacific’s 2013 refusal, like the refusal to rehire at issue in

Brown, was a “mere reiteration” of its earlier refusal and must not be treated as a second discrete

act. According to the court, accepting Sweatt’s position would render the limitations period of

49 U.S.C. § 20109(d)(2)(A)(ii) a nullity because Sweatt would be able to restart the period as

many times as he liked. The court therefore granted Union Pacific’s motion for summary

judgment.

DOL Administrative Review Board Decisions

TIMELINESS OF FRSA COMPLAINT; WHERE DISCHARGE NOTICE INFORMED

COMPLAINANT THAT HE WAS NOT ELIGIBLE FOR REEMPLOYMENT,

LIMITATIONS PERIOD COMMENCED ON THAT DATE RATHER THAN ON DATE

THAT COMPLAINANT ATTEMPTED REEMPLOYMENT AND WAS DENIED;

DENIAL OF REEMPLOYMENT APPLICATION WAS CONSEQUENCE OF ADVERSE

ACTION AND NOT A NEW ADVERSE ACTION; ACCRUAL OF DAMAGES IS NOT A

PREREQUISITE FOR A FRSA CAUSE OF ACTION

In Dugger v. Union Pacific Railroad Co., ARB No. 16-079, ALJ No. 2016-FRS-36 (ARB Aug.

17, 2017), the Complainant resigned from a management position with the Respondent. A week

later, August 18, 2015, the Respondent gave the Complainant a letter terminating his

employment and stating in pertinent part that the Complainant was “disqualified from returning

to any agreement craft where you may retain seniority and will not be considered for any future

employment with the Union Pacific Railroad Company or any related companies.” On

September 9, 2015, the Complainant attempted to return to work by exercising his union

seniority rights in a locomotive engineer position, but Respondent denied his request. The

Complainant filed a FRSA complaint on March 1, 2016. Under the FRSA limitations provision,

the complaint was untimely if the alleged violation occurred on the date of the termination letter,

but timely if the relevant violation was the date the Respondent denied the request to return to

work. The ALJ found that the relevant violation occurred on the date of the termination letter

and the denial of the return to work was only a consequence of the adverse action and not a new

one. The ARB affirmed the ALJ’s decision.

Within 180 days after an alleged FRSA violation occurs, any employee who believes that he or

she has been retaliated against in violation of the FRSA may file a complaint alleging such

retaliation. “[The] limitations period begins to run from the time that the complainant knows or

reasonably should know that the challenged act has occurred.” Thus, an employer violates the

FRSA on the date that it communicates to the employee its intent to take an adverse employment

action, rather than the date on which the employee experiences the adverse consequences of the

employer’s action.

In whistleblower cases, statutes of limitation, such as section 20109(d)(2)(ii), run

from the date an employee receives “final, definitive, and unequivocal notice” of

an adverse employment decision. “Final” and “definitive” notice is a

communication that is decisive or conclusive, i.e., leaving no further chance for

action, discussion, or change. “Unequivocal” notice means communication that is

not ambiguous, i.e., free of misleading possibilities.

USDOL/OALJ Reporter at 2 (footnotes omitted). The Complainant argued on appeal that “only

once his bid for a position was denied did he have the requisite damages to pursue a cause of

action.” The ARB rejected this argument, writing:

[G]iven the public policy of the whistleblower laws, the issue of whether a

complainant has sustained damages has never been a prerequisite to a finding of

retaliation; “the absence of a tangible injury goes only to remedy, not to whether

the employer committed a violation of the law.” Further, the August notice not

only terminated Dugger’s employment, but denied him the right to bid upon the

job he subsequently was denied, so Dugger did, in fact sustain a compensable

damage by virtue of this notice and the Secretary could have ordered

reinstatement and reversal of Respondent’s order that Dugger was forbidden to

“mark up.”

Id. at 5 (footnote omitted). The ARB also held that the ALJ’s conclusion that the Respondent’s

refusal to allow the Complainant to “mark up” was a consequence of the August 15, 2015

adverse action rather than a new one was consistent with Board precedent in Johnsen v. Houston

Nana, Inc. JV, ARB No. 00-064, ALJ No. 1999-TSC-4 (ARB Feb. 10, 2003).

•

Equitable Tolling

DOL Administrative Review Board Decisions

EQUITABLE ESTOPPEL; RESPONDENT’S ACTIONS, WHETHER INTENTIONAL

OR NOT, THAT LULLED COMPLAINANT INTO INACTION REGARDING AN FRSA

COMPLAINT; EVIDENCE THAT RESPONDENT LED COMPLAINANT TO BELIEVE

HE WOULD BE REINSTATED SUFFICIENT TO SURVIVE MOTION FOR

SUMMARY DECISION

In Jenkins v. CSX Transportation, Inc., ARB No. 13-029, ALJ No. 2012-FRS-73 (ARB May

15, 2014), the Complainant's FRSA was not timely filed, and the ALJ granted the Respondent's

motion for summary decision, finding that the Complainant failed to establish equitable estoppel

grounds for excusing the untimely filing. On appeal, the ARB stated that in addition to the three

equitable estoppel principles identified in School District of Allentown, the ARB had recognized

a fourth principle: “equitable estoppel will also apply to toll the running of a statute of limitations

in situations ‘where the employer’s own acts or omissions have lulled the plaintiff into foregoing

prompt attempts to vindicate his rights.’” USDOL/OALJ Reporter at 7 (footnote with citations

omitted). The Board stated:

Under this test it is immaterial whether the employer engaged in intentional

misconduct. The equitable principle justifies tolling because one party "lull[ed]

another into a false security, and into a position he would not take only because of

such conduct." For estoppel to apply in this context, "the issue is whether the

[employer]'s conduct, innocent or not, reasonably induced the [employee] not to

file suit within the limitations period." "It is only necessary to show that the

person estopped, by his statements or conduct, misled another to his prejudice."

Id. (footnotes omitted). Reviewing the Administrative Record, the ARB found that the

Complainant had submitted sufficient evidence to create a genuine issue as to whether

equitable estoppel applied in the form of three uncontested affidavits indicating that the

Respondent led him to believe that he would be reinstated. The Respondent argued that

discussions to resolve the Complainant's grievance could not be used as evidence to toll the

filing period. The Board, however, wrote:

If Jenkins were merely invoking the existence of his pending grievance to toll the

statute of limitations, we might agree with CSXT. Grievance proceedings are little

different from settlement negotiations in this respect, which we distinguished

in Hyman from the current situation. As we there noted, the Board has held that

settlement negotiations alone will not toll the running of the statute of

limitations. Hyman, ARB No. 09-076, slip op. at 8 (citing Beckmann v. Alyeska

Pipeline Servs. Co., ARB No. 97-057, ALJ No. 1995-TSC-016 (ARB Sept. 16,

1997) (settlement negotiations in the absence of any showing that the employer

misled or otherwise prevented the employee from filing a complaint held

insufficient to toll running of limitations period)). Unlike the situation in

Beckmann, the showing in this case is to the effect, as in Hyman, that one party

"lull[ed] another into a false security, and into a position he would not take only

because of such conduct." Humble Oil v. The Fidelity & Casualty Co. of N.Y., 402

F.2d 893, 897-98 (4th Cir. 1968). No showing of actual fraud is required. "It is

only necessary to show that the person estopped, by his statements or conduct,

misled another to his prejudice." Id.

USDOL/OALJ Reporter at 9-10. The ARB therefore remanded to the ALJ for further

proceedings, noting that equitable modification to toll a statute of limitations is a fact intensive

question, rarely appropriate for summary decision. One member of the ARB dissented, stating

that he would find that the Complainant had not "presented legally sufficient evidence to support

an equitable relief from the statute of limitations." Id. at 11.

• Timeliness and Removal Provision

U.S. District Court Decisions

TIMELINESS OF COMPALINT; KICK-OUT PROVISION

Despain v. BNSF Railway Co., No. 15-cv-08294 (D. Ariz. May 13, 2016) (2016 WL 2770144;

2016 U.S. Dist. LEXIS 63455) (case below 2015-FRS-00067) (Order denying motion to

dismiss): A district court action under the kick-out provision is essentially a continuation of the

pending agency action and therefore governed by the already-satisfied 180-day limitations

period, not the separate catch-all four year statute of limitations for federal actions.

III.

PROCEDURE BEFORE OALJ

Regulations

29 C.F.R. § 106: Objections to the findings and the preliminary order and requests for a

hearing.

(a) Any party who desires review, including judicial review, of the findings and preliminary

order, or a respondent alleging that the complaint was frivolous or brought in bad faith who

seeks an award of attorney fees under NTSSA, must file any objections and/or a request for a

hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to

§1982.105. The objections, request for a hearing, and/or request for attorney fees must be in

writing and state whether the objections are to the findings, the preliminary order, and/or whether

there should be an award of attorney fees. The date of the postmark, facsimile transmittal, or

electronic communication transmittal is considered the date of filing; if the objection is filed in

person, by hand-delivery or other means, the objection is filed upon receipt. Objections must be

filed with the Chief Administrative Law Judge, U.S. Department of Labor, and copies of the

objections must be mailed at the same time to the other parties of record, the OSHA official who

issued the findings and order, the Assistant Secretary, and the Associate Solicitor, Division of

Fair Labor Standards, U.S. Department of Labor.

(b) If a timely objection is filed, all provisions of the preliminary order will be stayed, except for

the portion requiring preliminary reinstatement, which will not be automatically stayed. The

portion of the preliminary order requiring reinstatement will be effective immediately upon the

respondent's receipt of the findings and preliminary order, regardless of any objections to the

order. The respondent may file a motion with the Office of Administrative Law Judges for a stay

of the Assistant Secretary's preliminary order of reinstatement, which shall be granted only based

on exceptional circumstances. If no timely objection is filed with respect to either the findings

and/or the preliminary order, the findings or preliminary order will become the final decision of

the Secretary, not subject to judicial review.

29 C.F.R. § 106: Hearings

(a) Except as provided in this part, proceedings will be conducted in accordance with the

rules of practice and procedure for administrative hearings before the Office of Administrative

Law Judges, codified at subpart A of part 18 of this title.

(b) Upon receipt of an objection and request for hearing, the Chief Administrative Law

Judge will promptly assign the case to an ALJ who will notify the parties, by certified mail, of

the day, time, and place of hearing. The hearing is to commence expeditiously, except upon a

showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted

de novo on the record. Administrative Law Judges have broad discretion to limit discovery in

order to expedite the hearing.

objections will be consolidated and a single hearing will be conducted.

(d) Formal rules of evidence will not apply, but rules or principles designed to assure production

of the most probative evidence will be applied. The ALJ may exclude evidence that is

immaterial, irrelevant, or unduly repetitious.

29 C.F.R. Part 18 Subpart A

[Editor’s Note: The Rules of Practice and Procedure for Administrative Hearings Before the

Office of Administrative Law Judges can be found at 29 C.F.R. §§ 18.10, et seq.]

29 C.F.R. § 108: Role of Federal agencies

(a)(1) The complainant and the respondent will be parties in every proceeding and must be

served with copies of all documents in the case. At the Assistant Secretary's discretion, the

Assistant Secretary may participate as a party or as amicus curiae at any time at any stage of the

proceeding. This right to participate includes, but is not limited to, the right to petition for review

of a decision of an ALJ, including a decision approving or rejecting a settlement agreement

between the complainant and the respondent.

(2) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division

of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA

is participating in the proceeding, or when service on OSHA and the Associate Solicitor is

otherwise required by these rules.

(b) The Department of Homeland Security or the Department of Transportation, if interested in a

proceeding, may participate as amicus curiae at any time in the proceeding, at those agencies'

discretion. At the request of the interested federal agency, copies of all documents in a case must

be sent to the federal agency, whether or not the agency is participating in the proceeding.

29 C.F.R. § 109: Decision and orders of the administrative law judge

(a) The decision of the ALJ will contain appropriate findings, conclusions, and an order

pertaining to the remedies provided in paragraph (d) of this section, as appropriate. A

determination that a violation has occurred may be made only if the complainant has

demonstrated by a preponderance of the evidence that protected activity was a contributing

factor in the adverse action alleged in the complaint.

(b) If the complainant has satisfied the burden set forth in the prior paragraph, relief may

not be ordered if the respondent demonstrates by clear and convincing evidence that it would

have taken the same adverse action in the absence of any protected activity.

investigation pursuant to §1982.104(e) nor OSHA's determination to proceed with an

investigation is subject to review by the ALJ, and a complaint may not be remanded for the

completion of an investigation or for additional findings on the basis that a determination to

dismiss was made in error. Rather, if there otherwise is jurisdiction, the ALJ will hear the case on

the merits or dispose of the matter without a hearing if the facts and circumstances warrant.

…

(e) The decision will be served upon all parties to the proceeding, the Assistant Secretary,

and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. Any

ALJ's decision requiring reinstatement or lifting an order of reinstatement by the Assistant

Secretary will be effective immediately upon receipt of the decision by the respondent. All other

portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely

petition for review has been filed with the Administrative Review Board (ARB), U.S.

Department of Labor. The decision of the ALJ will become the final order of the Secretary

unless a petition for review is timely filed with the ARB and the ARB accepts the petition for

review.

29 C.F.R. § 115: Special circumstances; waiver of rules.

In special circumstances not contemplated by the provisions of these rules, or for good

cause shown, the ALJ or the ARB on review may, upon application, after three days’ notice to all

parties, waive any rule or issue such orders that justice or the administration of NTSSA or FRSA

requires.

• Amendment of Complaint

DOL Administrative Review Board Decisions

AMENDMENTS TO COMPLAINT TO ALLEGE ADDITIONAL PROTECTED

ACTIVITY PERMITTED WHERE THE AMENDMENTS RELATED BACK TO THE

TIMELY COMPLAINT AND THE RESPONDENT SUFFERED NO PREJUDICE

In D’Hooge v. BNSF Railways, ARB Nos. 15-042, -066, ALJ No. 2014-FRS-2 (ARB Apr. 25,

2017), the Complainant amended his FRSA complaint to include two separate categories of

protected activities. The ALJ found that the amendments (a report of a neck injury due to

cumulative stress, and a report of a rough track) related back to the Complainant’s timely

complaint of based of his report of rough riding or unsafe locomotives. The ALJ thus considered

all of the alleged protected activities. On appeal, the Respondent argued that the ALJ erred in

ruling that the amendments to the complaint were timely, but the ARB agreed with the ALJ that

the amendments related back to the original complaint arising out of the same fact pattern. See

29 C.F.R. § 18.36 (2016); Fed R. Civ. P. 15(c). The ARB also determined that the Respondent

suffered no prejudice by the amendment to include additional protected activities.

• Decision and Order

DOL Administrative Review Board Decisions

ALJ’s DECISION AND ORDER; TIGHTLY FOCUSED SET OF FINDINGS OF FACT

IS HELPFUL FOR SUBSTANTIAL EVIDENCE APPELLATE REVIEW; SUMMARY

OF THE RECORD IS NOT NECESSARY AS IT IS ASSUMED THAT ALJ

CONSIDERED ENTIRE RECORD

In Austin v. BNSF Railway Co., ARB No. 17-024, ALJ No. 2016-FRS-13 (ARB Mar. 11, 2019)

(per curium), the ARB noted that an ALJ need not include a summary of the record in the

decision and order, as it is assumed that the ALJ reviewed and considered the entire record in

making his or her decision. The ARB indicated that what is more helpful for its review of

whether the ALJ’s findings of fact are supported by substantial evidence of record is a tightly

focused set of findings of fact.

PROTECTED ACTIVITY; ALJ FOUND NOT TO HAVE EXCEEDED HIS

AUTHORITY IN FINDING PROTECTED ACTIVITY BASED ON LEGAL THEORY

NOT ARTICULATED BY COMPLAINANT AS LONG AS IT IS SUPPORTED BY THE

RECORD AND WAS ADEQUATELY LITIGATED

In Seay v. Norfolk Southern Railway Co. , ARB No. 14-022, 13-034, ALJ No., 2013-FRS-34

(ARB Oct. 27, 2016), the Complainant was one of two employees (the other being his

supervisor) in a hi-rail vehicle that drove beyond the applicable track authority (a protocol that

ensures that the track section is out of service while it is being inspected). The supervisor was

driving. Both employees were disciplined. The Complainant refused to waive an investigatory

hearing. After the hearing, but before a determination, the Complainant accepted a waiver (under

protest) accepting responsibility for the incident. On appeal, the Respondent contended that the

ALJ erred by finding that the Complainant engaged in protected activity. The ARB affirmed the

ALJ’s finding because the Complainant had provided information about the incident.

The Respondent argued that the ALJ overstepped his authority by finding protected activity on a

theory not advanced by the Complainant (presumably that the Complainant provided information

about safety issues as opposed to merely refusing to waive his right to a hearing). The ARB

rejected this argument, finding that the Complainant had said “numerous times” that his

“reported activity included accusing [the supervisor] of violating a safety rule and that his refusal

to forego a hearing led him to provide information about safety.” The ARB found that this

supported the ALJ’s ruling that the Complainant engaged in protected activity. The ARB cited

Funke v. Federal Express Corp., ARB No. 09-004, ALJ No. 2007-SOX-43 (ARB July 8, 2011).

(“As long as an issue is adequately litigated below and part of the record, we are not necessarily

bound by the legal theory of any party in determining” a question of law.”).

• Sanctions / Adverse Inferences

U.S. Circuit Court of Appeals Decisions

ALJ DISCRETION TO IMPOSE ADVERSE INFERENCE FOR FAILURE TO

PRODUCE EVIDENCE; ALJ CANNOT BE HELD TO HAVE ABUSED THAT

DISCRETION WHERE APPEALING PARTY NEVER ASKED FOR ADVERSE

INFERENCE TO BE DRAWN

In Samson v. USDOL, No. 17-2862 (7th Cir. May 21, 2018) (2018 U.S. App. LEXIS 13174;

2018 WL 2304223) (unpublished) (case below ARB No. 15-065; ALJ No. 2014-FRS-00091),

the 7th Circuit dismissed the complainant’s petition for review of the ARB’s affirmance of the

ALJ’s dismissal of his FRSA retaliation complaint. One of the complainant’s arguments on

appeal was that the ALJ should have drawn an adverse inference sanctioning the respondent for

not providing recordings of certain radio conversations that the complainant believed still

existed. The court observed that imposing an adverse inference against a party is left to the

discretion of the factfinder, and the ALJ could not have abused that discretion where the

complainant had not asked the ALJ to draw an adverse inference.

• Evidentiary Determinations

U.S. Circuit Court of Appeals Decisions

EVIDENTIARY DETERMINATIONS; FIRST CIRCUIT AFFIRMS EXCLUSION OF

COMPARATOR EVIDENCE WHERE LACK OF CONTEXT WOULD RENDER IT OF

LITTLE PROBATIVE VALUE

Pan Am Railways., Inc. v. USDOL, 855 F.3d 29, No. 16-2271 (1st Cir. Apr. 20, 2017) (2017

U.S. App. LEXIS 7047; 2017 WL 1422369) (case below ARB No. 14-074; ALJ No. 2013-FRS84)

Complainant in the case reported that a pile of railroad ties were a safety hazard. It was not

abated. He later tripped on the pile and injured his ankle. He reported his injury and was taken

to the hospital. A manager told him to expect a disciplinary hearing. He had two days off but

took three days to recover, missing a day, which meant the railroad had to report the injury. A

hearing was then initiated based on the alleged failure to make sure he had secure footing before

getting off a train. He was disciplined with a formal reprimand. Complainant then filed an

OSHA complaint based on report the hazard and reporting the injury. It was drafted by a lawyer

without review of the Complainant and contained a discrepancy with the testimony at the hearing

injury as to whether after hurting his ankle he caught himself and say down or fell down. A

manager deemed this major and the railroad decided to bring a second set of charges against

plaintiff for filing the OSHA complaint containing a different account in one part. Complainant

amended his OSHA complaint to include retaliation for bringing the initial OSHA complaint. At

the second hearing, which threatened dismissal, Complainant explained that the lawyer had

prepared the OSHA complaint and had gotten that one detail wrong. He also explained that no

one at the railroad had asked him about the discrepancy before initiating the second round of

discipline. The charge was not sustained.

OSHA found for Complainant on the second, but not first, complaint. The railroad sought a

hearing. The ALJ found the manager not very credible and found for the Complainant, rejecting

the affirmative defense because the comparator evidence did not match the situation. The ALJ

awarded $10K in emotional distress and the maximum amount, $250K, in punitive damages.

The ARB affirmed on the grounds that substantial evidence supported the findings and the

punitive damage award was not an abuse of discretion. The railroad appealed to the First Circuit.

The First Circuit affirmed. First, the railroad argued that it had established its affirmative

defense. It challenged the exclusion of certain comparator evidence, arguing that it was not

hearsay under the business records exception. But they hadn’t been excluded because they were

hearsay. The ALJ excluded some of the comparator evidence because there weren’t any

witnesses who could provide context to them and so they didn’t have probative value. This was

not an abuse of discretion. Moreover, any error was harmless since they would have only shown

that there was prior discipline for false statements, which would not make the circumstances

similar to those in this case. This was the same deficiency the ALJ assigned to the evidence that

did come in, which the First Circuit held was permissibly found insufficient. The railroad also

argued based on its not-retaliatory motive in the discrepancy, but the First Circuit held that

substantial evidence supported the ALJ’s reasons for rejecting that explanation: adverse

credibility findings as to the key manager. The First Circuit also flatly rejected the claim that the

ALJ had improperly evaluated the evidence regarding the circumstances of the disciplinary

hearing.

WEIGHING OF EVIDENCE; THE EIGHTH CIRCUIT FINDS THAT THE

BACKGROUND EVIDENCE RULE WAS APPLIED CORRECTLY BY CONSIDERING

ALL RELEVANT ACTIONS THAT OCCURRED OUTSIDE OF THE STATUTE OF

LIMITATIONS

In Mercier v. USDOL, 850 F.3d 382 (8th Cir. 2017) (case below ARB No. 13-048, ALJ No.

2008-FRS-004), the Eighth Circuit found the ARB’s final decision to be supported by substantial

evidence and affirmed it, dismissing Michael Mercier’s (“Plaintiff”) FRSA complaint against

Union Pacific Railroad Company (“UP”). Plaintiff alleged that UP terminated him for numerous

reports of safety issues, and that UP’s stated reason for termination, violation of a waiver

agreement, was pretextual. Plaintiff contended that the ALJ failed to consider evidence of

conduct that occurred prior to September 29, 2007, “the operative cutoff date” for the 180-day

filing period of the FRSA, 49 U.S.C. § 20109(d)(2)(A)(ii).. The court found that the ALJ

“correctly applied the background evidence rule” because he “consider[ed] all of the relevant

actions that occurred prior to, and after, September 2007 in evaluating the case.”

HEARSAY; THE EIGHTH CIRCUIT FINDS THAT THE ALJ DID NOT IMPROPERLY

RELY ON HEARSAY EVIDENCE; THE CHALLENGED TESTIMONY WAS NOT

HEARSAY BECAUSE IT WAS OFFERED FOR ITS EFFECT ON THE

DECISIONMAKER AND NOT OFFERED FOR THE TRUTH OF THE MATTER

ASSERTED

In Mercier v. USDOL, 850 F.3d 382 (8th Cir. 2017) (case below ARB No. 13-048, ALJ No.

2008-FRS-004), the Eighth Circuit found the ARB’s final decision to be supported by substantial

evidence and affirmed it, dismissing Michael Mercier’s (“Plaintiff”) FRSA complaint against

Union Pacific Railroad Company (“UP”). Mercier at 385. Plaintiff alleged that UP terminated

him for numerous reports of safety issues, and that UP’s stated reason for termination, violation

of a waiver agreement, was pretextual. Id. at 387. Plaintiff contended that the ALJ improperly

relied on hearsay testimony. The testimony at issue detailed conversations between UP

employees and between the decisionmaker and a UP employee. Id. at 389. Reasoning that the

challenged testimony was offered for its effect on the decisionmaker, not for the truth of the

matter asserted in it, the court found that the testimony was not hearsay. Id. at 389-90.

• Dismissal for Cause

DOL Administrative Review Board Decisions

DISMISSAL FOR CAUSE; FAILURE TO RESPONSE TO ALJ’S ORDERS;

DIFFICULTY WITH FAXING AND NEED TO FILE DOCUMENTS IN COURT

PROCEEDING FOUND NOT TO EXCUSE FAILURE

In Lee v. Norfolk Southern Railway Co., ARB No. 17-015, ALJ No. 2014-FRS-24 (ARB May

25, 2018), the ARB summarily affirmed the ALJ’s order dismissing the Complainant’s FRSA

complaint where the Complainant failed to respond to an order to show cause why the claim

should not be dismissed for failure to respond to an earlier order directing the Complainant to

provide a status report on whether he would be proceeding with the FRSA complaint without a

representative after the ALJ granted the Complainant’s counsel’s motion to withdraw from

representation. The ARB found that the Complainant’s purported problems with faxing

responses and need to make filings in a Court of Appeals matter did not excuse the failure to

respond to the ALJ’s order to show cause. Moreover, the ARB found that the ALJ did not abuse

her discretion in not mentioning in the order to show cause that the Complainant had filed a 60

page fax that was a status report on civil litigation in the Federal courts. That fax had not

addressed the question of whether the Complainant intended to proceed with the FRSA claim

before the ALJ without a representative, and was dated prior to the ALJ issued the order to show

cause.

• Summary Decision

U.S. Circuit Court of Appeals Decisions

SUMMARY JUDGMENT UNDER THE FRSA WHISTLEBLOWER PROVISION;

EVIDENCE OF TEMPORAL PROXIMITY AND DISPARATE TREATMENT FOUND

TO BE SUFFICIENT TO SURVIVE DEFENDANT'S MOTION FOR SUMMARY

JUDGMENT; CONGRESS' INTENT TO BE PROTECTIVE OF PLAINTIFFEMPLOYEES

In Araujo v. New Jersey Transit Rail Operations, Inc., No. 12-2148, F.3d , 2013 WL

600208 (3rd Cir. Feb. 19, 2013), the Plaintiff filed an action alleging that he had been disciplined

by the Defendant in retaliation for his participation in activity protected by Federal Rail Safety

Act (FRSA) -- reporting an emotional injury after he witnessed a fatal accident. The district court

found that the discipline was not retaliatory and granted summary judgment the Defendant.

First, the district court held that the Plaintiff did not establish a prima facie case of retaliation

because the record lacked evidence from which a reasonable factfinder could infer that the

protected activity - the report of employee injury - was a contributing factor in the Defendant's

decision to discipline the Plaintiff for operational rules he was found by the employer to have

violated relating to the fatal accident. The Court of Appeals, however, found that although the

Plaintiff had not offered overwhelming evidence in opposition to the motion for summary

judgment he had identified evidence of temporal proximity and adverse disparate treatment,

sufficient to withstand summary judgment.

The court observed that "[t]emporal proximity between the employee's engagement in a

protected activity and the unfavorable personnel action can be circumstantial evidence that the

protected activity was a contributing factor to the adverse employment action. See Kewley v.

Dep't of Health and Human Servs., 153 F.3d 1357, 1362 (Fed.Cir.1998) (noting that, under the

Whistleblower Protection Act, 'the circumstantial evidence of knowledge of the protected

disclosure and a reasonable relationship between the time of the protected disclosure and the

time of the personnel action will establish, prima facie, that the disclosure was a contributing

factor to the personnel action') (internal quotation omitted)." Araujo, supra, slip op. at 19. The

court acknowledged that the evidence on the Plaintiff's temporal proximity argument was

entirely circumstantial, and that he had not provided any evidence about the Defendant's motive,

but ruled that direct evidence of motive is not required.

The Court of Appeals also found that the Defendant's had not carried its "clear and convincing

evidence" burden sufficient to be entitled to summary judgment. The Defendant's proffered facts

to rebut the temporal proximity and disparate treatment proffered facts were insufficient in view

of the steep burden on employers under the AIR-21 burden-shifting framework. Although the

Defendant showed that the Plaintiff was in technical violation of written rules, they did not shed

any light on whether the Defendant's decision to file disciplinary charges was retaliatory.

The Court of Appeals emphasized that the Complainant had not articulated an overwhelming

case of retaliation: for example he had not proffered any evidence that the Defendant dissuaded

him from reporting his injury or expressed animus at him for doing so. The Plaintiff's evidence

was entirely circumstantial, and the Court expressed no opinion as to the strength of the

Plaintiff's evidence. The Court noted, however, that "by amending the FRSA, Congress

expressed an intent to be protective of plaintiff-employees." Araujo, supra, slip op. at 26. Thus,

applying the AIR-21 burden-shifting framework applicable to FRSA whistleblower cases, the

Plaintiff had shown enough to survive the Defendant's motion for summary judgment.

DOL Administrative Review Board Decisions

SUMMARY DECISION ON RESPONDENT’S AFFIRMATIVE DEFENSE, WHICH

HAS TO BE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE IS

PARTICULARLY CHALLENGING; EVEN WHERE A RESPONDENT ASSERTS A

LEGITIMATE, NON-DISCRIMINATORY REASON FOR THE ADVERSE ACTION,

SUMMARY DECISION IS DEFEATED WHERE THE COMPLAINANT POINTS TO

FACTS OR EVIDENCE THAT COULD DISCREDIT THAT REASON

In Stallard v. Norfolk Southern Railway Co., ARB No. 16-028, ALJ No. 2014-FRS-149 (ARB

Sept. 29, 2017), the Complainant reported a back injury at work and received medical care. The

Complainant’s personal physician accidentally checked a box in a follow-up examination stating

that the injury occurred at home rather than on-duty. A claim agent noticed the discrepancy

about where the injury occurred. A company physician was consulted, and after reviewing

hospital records, concluded that there was no way of knowing whether the injury occurred at

home or at work. In the meantime, the Complainant’s personal physician faxed in a correction to

state that the injury occurred at work. This correction was not immediately reported through

channels, and a charge letter was sent scheduling a hearing to determine whether the

Complainant provided false statements to the Respondent. The Complainant’s supervisor was

provided Facebook photographs indicating that the Complainant apparently had been physically

active at a social event, and learned of a rumor that the Complainant had been working at a golf

course. The hearing was postponed at the Complainant’s request. The personal physician resent his correction memo. Upon learning of the correction, the Respondent’s officials debated

whether to cancel the hearing, but decided to keep it scheduled in the event that the rumors and

suspicions about the severity of the Complainant’s injury could be confirmed. The hearing was

canceled about a month later when the Complainant requested an indefinite postponement due to

his medical treatment for the injury. The Complainant ultimately had back surgery and never

returned to work. The Complainant filed an FRSA retaliation complaint with OSHA. OSHA

dismissed the complaint. The Complainant requested an ALJ hearing. The ALJ granted

summary decision in favor of the Respondent finding that the Respondent had established by

clear and convincing evidence that the Complainant’s report of a work injury was not a

contributing factor in the alleged adverse action. The ARB vacated the ALJ’s decision and

remanded.

The ARB noted that a respondent’s burden of proof on this affirmative defense is to prove “by

clear and convincing evidence” that it would have taken the adverse action in the absence of the

injury. The ARB stated that this is an intentionally high burden because “Congress intended to

be protective of plaintiff-employees.” Thus, resolving the issue of the Respondent’s affirmative

defense by summary decision is “challenging.” The ARB stated such “a fact-intensive

assessment … requires a determination, on the record as a whole, how clear and convincing [the

Respondent]’s lawful reasons were for scheduling and then cancelling a hearing into [the

Complainant]’s injury. In analyzing the affirmative defense, it is not enough to confirm the

rational basis of [the Respondent]’s employment policies and decisions. Instead, we must assess

whether they are so powerful and clear that [the Respondent] would have charged [the

Complainant] apart from the protected activity.” USDOL/OALJ Reporter at 14.

In the instant case, the Respondent contended that it presented undisputed facts consistent with

the factors discussed by the ARB in DeFrancesco II, ARB No. 13-057, slip op. at 11-12, for

determining whether a respondent has sufficiently demonstrated its affirmative defense in the

context of a reported injury. The ARB observed, however, that it has ruled that “even where a

respondent asserts legitimate, non-discriminatory reasons as part of its affirmative defense, a

complainant can create a genuine issue of fact by pointing to specific facts or evidence that, if

believed, could discredit the respondent’s reasons, making them less convincing on summary

decision.” USDOL/OALJ Reporter at 14, quoting Henderson, ARB No. 11-013, slip op. at

15. The ARB found that in the instant case there were disputed facts on motivation that

prevented summary decision on the affirmative defense. For example, the Complainant provided

sufficient evidence to create an issue of fact that the Respondent’s conduct surrounding the

charge letter suggested pretext designed to unearth some plausible basis on which to punish the

Complainant for the injury report.

SUMMARY DECISION; WEIGHING EVIDENCE ERROR