# FEDERAL RAILROAD SAFETY ACT (“FRSA”)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A823b0e895b563bf5

## Record

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

## Text

FEDERAL RAILROAD SAFETY ACT (“FRSA”)
WHISTLEBLOWER DIGEST
JUNE 12, 2019
Table of Contents
I.

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

•

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

•

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

•

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

•

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

•

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

•

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

II.

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

•

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

•

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

•

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

III.

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

IV.

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

•

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

•

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

•

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

•

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

•

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

•

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

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

o

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

o

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

o

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

o

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

•

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

•

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

•

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

V.

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

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

VI.

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

VII.

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

VIII.

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

•

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

•

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

•

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

•

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

IX.

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

•

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

•

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

•
X.

o

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

o

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

o

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

o

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

o

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

o

Working Conditions .................................................................................................................. 220
Adverse Action and Summary Decision ........................................................................................ 220

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

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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

•

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.]

I.

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
(C) a person with supervisory authority over the employee or such other person
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
(C) refusing to authorize the use of any safety-related equipment, track, 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
(C) the employee, where possible, has notified the railroad carrier of the
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.
(c) Prompt medical attention.
(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
(C) compensatory damages, including compensation for any special damages
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.
(c) Place of filing. The complaint should be filed with the OSHA office responsible for
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.
(c) During the investigation, OSHA will request that each party provide the other parties to
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.
(c) The findings and any preliminary order will be effective 30 days after receipt by the
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.
(c) If both the complainant and the respondent object to the findings and/or order, the
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.
(c) Neither OSHA's determination to dismiss a complaint without completing an
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
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 no genuine issue of material fact regarding
whether the Complainant suffered an adverse action. The ARB vacated the ALJ’s decision and
remanded.
Factual disputes precluded summary decision
Initially, the ARB noted that that the ALJ had apparently weighed evidence and made factual
inferences inconsistent with the summary decision phase, during which the question was not
whether an adverse action occurred, but only whether, given the evidence presented, there was a
reasonable question whether an adverse action occurred.
The ARB noted that the Complainant’s allegation was that the Respondent’s scheduling of a
disciplinary investigation constituted deliberate retaliation, intimidation and harassment for
reporting an on-duty injury. The Complainant alleged that the charge affected his personnel
record, and that he suffered anxiety and emotional distress because of the scheduled hearing and
the implicit threat of termination. The Respondent countered that the Complainant suffered no
consequences and that nothing was placed on his permanent record. There was a dispute as to
whether the internal hearing was routine or a pretext for retaliation. The ARB found that

viewing the evidence in the light most favorable to the Complainant, a reasonable person could
find the charge letter to be materially adverse.

• Witnesses

DOL Administrative Review Board Decisions

VIOLATION OF ALJ’S SEQUESTRATION OF WITNESSES ORDER; ALJ HAS
DISCRETION ON EVIDENTIARY RULINGS AND DID NOT ABUSE HIS
DISCRETION IN CREDITING TESTIMONY OF WITNESS OVER WHICH THE
WITNESS HAD PERSONAL KNOWLEDGE
In Rathburn v. The Belt Railway Co. of Chicago, ARB No. 16-036, ALJ No. 2014-FRS-35
(ARB Dec. 8, 2017), the Complainant filed a complaint alleging that the Respondent retaliated
against him in violation of the FRSA whistleblower provision for reporting an injury and seeking
medical treatment for the injury. The Complainant had sustained the injury during an altercation
with a co-worker. On appeal, the Complainant argued that the ALJ erred in relying on testimony
presented by the Respondent’s Director of Human Resources and General Counsel (“HR
Director”), because the witness had evidently violated the ALJ’s order granting the
Complainant’s motion to exclude all witnesses from the hearing room during the testimony of
other witnesses. Specifically, the Complainant had called three witnesses about a previous
altercation. The next day at the hearing, the Complainant called the HR Director and asked
whether he had heard about the previous altercation, to which the HR Director responded that the
first time he heard about it was yesterday. The Complainant argued before the ARB that the ALJ
should have not given weight to the HR Director’s testimony and that the violation of the ALJ
sequestration order cast doubt as to other testimony. The ARB noted that the Federal Rules of
Evidence do not apply to FRSA hearings, found that 29 C.F.R. § 18.615 (sequestration request)
does apply, and that pursuant to 29 C.F.R. § 18.602 a witness may only testify about matters on
which the witness has personal knowledge. The ARB then stated that “[e]videntiary rulings are
within the ALJ’s discretion and [the Complainant] has not shown how he was harmed or
prejudiced as a result of [the HR Director’s] testimony or that the ALJ abused his discretion.”
The ARB found that the ALJ had only credited testimony from the HR Director about which the
witness had personal knowledge.

• Remands from ARB

DOL Administrative Review Board Decisions

ALJ WAS WITHIN HIS DISCRETION IN NOT ISSUING BRIEFING ORDER ON
REMAND WHERE RESPONDENT HAD OVER EIGHT MONTHS TO REQUEST
OPPORTUNITY TO SUBMIT ADDITIONAL EVIDENCE OR ARGUMENT
In Rudolph v. National Railroad Passenger Corp. (AMTRAK), ARB Nos. 14-053, -056, ALJ
No. 2009-FRS-15 (ARB Apr. 5, 2016), the ARB affirmed the ALJ’s decision and order on
remand finding that the Respondent violated the employee protection provision of the Federal
Railroad Safety Act, when it determined that the Complainant was medically disqualified from
working as a conductor. On appeal, the Respondent argued that the ALJ denied it an opportunity
to be heard on remand because the ALJ failed to issue a briefing order, thus depriving the
Respondent of its right to submit additional evidence and argument to supplement the record.
The ARB was not persuaded:
The ALJ regulation governing re-opening of the record [at 29 C.F.R. § 18.54(c)]
states: “When there is a hearing, the record shall be closed at the conclusion of the
hearing unless the administrative law judge directs otherwise.” This section
affords the ALJ discretion to reopen the record on remand. For eight months
Amtrak never filed a motion to submit additional evidence on its fitness-for-duty
standards or to offer argument on the issue of contributory causation. The ALJ
obviously found no need to issue a scheduling order. His decision was well within
his discretion.
USDOL/OALJ Reporter at 18 (footnote omitted) (emphasis as in original).
[Editor’s note: The ALJ procedural regulation at 29 C.F.R. § 18.54(c) was in effect at the time of
the ALJ hearing in Rudolph. The ALJ procedural regulations have since been revised, and the
current rule on reopening a record is found at 29 C.F.R. § 18.90(b) (2015).]

IV.

PROCEDURE BEFORE ARB

Regulations

29 C.F.R. § 110: Decision and orders of the Administrative Review Board
…
(a) Any party desiring to seek review, including judicial review, of a decision of the ALJ, or
a respondent alleging that the complaint under NTSSA was frivolous or brought in bad faith who
seeks an award of attorney fees, must file a written petition for review with the ARB, which has
been delegated the authority to act for the Secretary and issue final decisions under this part. The
parties should identify in their petitions for review the legal conclusions or orders to which they
object, or the objections may be deemed waived. A petition must be filed within 14 days of the
date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic
communication transmittal will be considered to be the date of filing; if the petition is filed in
person, by hand-delivery or other means, the petition is considered filed upon receipt. The
petition must be served on all parties and on the Chief Administrative Law Judge at the time it is
filed with the ARB. Copies of the petition for review must be served on the Assistant Secretary,
and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
(b) If a timely petition for review is filed pursuant to paragraph (a) of this section, the
decision of the ALJ will become the final order of the Secretary unless the ARB, within 30 days
of the filing of the petition, issues an order notifying the parties that the case has been accepted
for review. If a case is accepted for review, the decision of the ALJ will be inoperative unless
and until the ARB issues an order adopting the decision, except that any order of reinstatement
will be effective while review is conducted by the ARB, unless the ARB grants a motion by the
respondent to stay that order based on exceptional circumstances. The ARB will specify the
terms under which any briefs are to be filed. The ARB will review the factual determinations of
the ALJ under the substantial evidence standard. If no timely petition for review is filed, or the
ARB denies review, the decision of the ALJ will become the final order of the Secretary. If no
timely petition for review is filed, the resulting final order is not subject to judicial review.
(c) The final decision of the ARB will be issued within 120 days of the conclusion of the
hearing, which will be deemed to be 14 days after the date of the decision of the ALJ, unless a
motion for reconsideration has been filed with the ALJ in the interim. In such case, the
conclusion of the hearing is the date the motion for reconsideration is denied or 14 days after a
new decision is issued. The ARB's final decision will be served upon all parties and the Chief
Administrative Law Judge by mail. The final decision also will be served on the Assistant
Secretary, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of
Labor, even if the Assistant Secretary is not a party.

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.

• Briefing

DOL Administrative Review Board Decisions

BRIEFING; FAILURE TO FILE OPENING APPELLATE BRIEF
Gardner v. Union Pacific Railroad Co., ARB No. 17-025, ALJ No. 2016-FRS-71 (ARB May 24,
2017): Appeal dismissed because the Complainant did not respond to the ARB’s order to show
cause why the appeal should not be dismissed for failure to file an opening appellate brief. The
ARB noted that because of the Complainant’s pro se status, it had reviewed his petition for
review to determine whether the Respondent should be required to respond. The ARB
determined, however, that the Complainant’s petition did not specify any facts as found by the
ALJ that the Complainant believed were not supported by substantial evidence, and did not state
that the ALJ had erred in applying the applicable law to the facts of the case. The ARB thus
found no reason to require the Respondent to respond.

BRIEFING; UNTIMELINESS: UNTIMELY BRIEF NONRESPONSIVE TO ARB’s
SHOW CAUSE ORDER RESULTS IN DISMISSAL OF CASE BEFORE ARB
In Phillips v. Norfolk Southern Railway Co., ARB No. 15-059, ALJ No. 2014-FRS-133 (ARB
Aug. 11, 2015), the ARB issued a dismissal after Complainant failed to timely file opening brief
and, then, in response to ARB’s Show Cause Order, filed a brief responding to the merits of the
case and not the Order to Show Cause.

• Withdrawal of Petition for Review

DOL Administrative Review Board Decisions

WITHDRAWAL OF PETITION FOR REVIEW; ARB GRANTS WITHDRAWAL OF
PETITION FOR REVIEW BASED ON ELECTION OF REMEDIES PROVISION
WHERE SETTLEMENT WAS REACHED IN STATE ACTION
In Boucher v. BNSF Railway Co., ARB No. 2016-0085, ALJ No. 2014-FRS-00072 (ARB Mar.
22, 2019) (per curiam), the Complainant filed a FRSA complaint and a Montana state court
action. The DOL ALJ granted the Respondent’s motion for summary decision on the ground that
the Complainant could not seek relief for his discharge under both the FRSA and the Montana
law. The ALJ also noted that it would be improper for Complainant to receive duplicate remedies
for the Respondent’s same alleged unlawful act. The Complainant appealed to the ARB, but later
filed a motion to withdraw the petition for review based on a settlement of the Montana suit. The
ARB directed the parties to submit a copy of the settlement agreement because the FRSA
regulations require ARB approval where a withdrawal is based on a settlement agreement.
The Respondent filed a redacted copy of the settlement agreement. The ARB denied the motion
to withdraw, stating that it would not approve a redacted settlement agreement because the
amount of money or other consideration provided in the settlement was a matter of public
concern. The ARB directed submission of an unredacted copy of the settlement within 30 days.
The ARB stated that if such was not timely submitted, it would consider the case on its merits. In
response, the Complainant conceded that the Respondent was entitled to summary decision
because he had now elected his remedy—i.e., the settlement in the Montana action.
The ARB noted that the FRSA “election of remedies” provision at 49 U.S.C. § 20109(f)
prohibits a complainant from bringing separate claims under two different provisions of law for
the same allegedly unlawful act. The ARB wrote:
Montana law provides a cause of action to railway workers who suffer adverse
actions because of a railroad’s mismanagement, negligence, or wrongdoing. It is
“another provision of law” and it provides “protection” because it provides a
remedy for wrongful discharge. Because Complainant has elected to seek
protection under “another provision of law” in addition to the FRSA, the “election
of remedies” provision of the Act renders withdrawal and dismissal of the instant
action appropriate.
Slip op. at 4 (footnote omitted). Accordingly, the ARB granted the Complainant’s motion to
withdraw his petition for review, and dismissed the complaint.

WITHDRAWAL OF PETITION FOR REVIEW; ALJ’s DECISION BECOMES
SECRETARTY’S FINAL ORDER

Meyer v. BNSF Railway Co., ARB No. 17-030, ALJ No. 2015-FRS-24 (ARB Apr. 6, 2017):
Appeal dismissed based on Respondent’s withdrawal of its petition for review. The ALJ’s
decision thereby became the Secretary of Labor’s final order in the case.

WITHDRAWAL OF PETITION FOR REVIEW; ALJ’s DECISION BECOMES
SECRETARTY’S FINAL ORDER
Williams v. Union Pacific Railroad Co., ARB No. 16-058, ALJ No. 2014-FRS-153 (ARB May
23, 2016): The ARB granted the Complainant's withdrawal of her petition for review, with the
result that the ALJ's Order Granting Respondent's Motion for Summary Decision and Order
Cancelling Hearing issued on April 8, 2016 became the Secretary of Labor's final order in the
case.

• Removal to Federal Court

DOL Administrative Review Board Decisions

ARB DISMISSES COMPLAINT AFTER NOTICE FILED WITH ARB OF INTENT TO
FILE ACTION IN DISTCT COURT
Henin v. Soo Line Railroad Co., ARB No. 2019-0028, ALJ No. 2017-FRS-00011 (ARB Mar. 22,
2019) (per curiam) (Order Granting Reconsideration, Reinstating Complainant’s Appeal As
Timely and Dismissing Complaint): The Respondent filed a motion to dismiss the Complainant's
petition for ARB review as untimely. The Complainant later filed a notice of intent to file an
action in district court, and that same day, the ARB granted the Respondent's motion to dismiss
the petition as untimely. The Complainant filed a motion to reconsider the grounds for the
dismissal because he had not received the ALJ's decision and order until 11 days after the ALJ
issued the decision. The ARB also received a copy of a filing of a complaint in the U.S. District
Court for the District of Minnesota. Upon review of the administrative file, the ARB found,
inexplicably, evidence of two different dates for issuance of the ALJ's decision. A certified mail
mail receipt supported the date of receipt claimed by the Complainant. Applying FRAP 26(c),
the ARB reconsidered, reinstated the appeal as timely filed, and then dismissed the
administrative complaint because the Complainant had filed an action in U.S. district court.
ARB DISMISSES COMPLAINT AFTER NOTICE FILED WITH ARB OF INTENT TO
FILE ACTION IN DISTCT COURT

Johnson v. Grand Trunk Western Railroad Co., ARB No. 2019-0003, ALJ NO. 2018-FRS-10
(ARB Jan. 31, 2019) (Order Dismissing Complaint): The ARB dismissed the Complainant’s
administrative complaint because the Complainant filed a notice of his filing an action in the
United States District Court for Eastern District of Michigan as authorized by 49 U.S.C.A. §
20109(d)(3).

DISMISSAL OF APPEAL ON REMOVAL
Sirois v. Long Island Railroad Co., ARB No. 2018-043, ALJ No. 2017-FRS-78 (ARB June 26,
2018): The ARB dismissed a FRSA case pending before it upon the Complainant’s filing of a
notice of the filing of action in U.S. district court.

FILING OF FRSA COMPLAINT IN U.S. DISTRICT COURT ENDS DOL
JURISDICTION; ARB DISMISSES PENDING APPEAL UPON LEARNING OF
DISTRICT COURT ACTION
On August 23, 2017, the Complainant in Guerra v. Consolidated Rail Corp. (Conrail), ARB
No. 2017-069, ALJ No. 2017-FRS-47 (ARB June 29, 2018), petitioned the ARB for review of
the ALJ’s order dismissing his FRSA retaliation complaint. In its June 29, 2018, Order
Dismissing Appeal, the ARB noted that in Guerra v. Consolidated Rail Corp., No.: 2:17-cv6497, 2018 WL 2947857 (D. N.J. June 13, 2018), the district court granted Conrail’s motion to
dismiss the Guerra’s whistleblower complaint on the grounds that he failed to timely file it with
OSHA. The ARB found that because the Complainant chose to proceed in district court pursuant
to 49 U.S.C.A. § 20109(d)(3), the Department of Labor no longer has jurisdiction over the case.
The ARB noted that it had no record of receiving notice of the filing of the district court
complaint as required by 29 C.F.R. § 1982.114(c).

• Self-Represented Litigants

DOL Administrative Review Board Decisions

SELF-REPRESENTED LITIGANTS; FAILURE TO FILE OPENING APPELLATE
BRIEF; ARB REVIEW OF PETITION OF REVIEW

Gardner v. Union Pacific Railroad Co., ARB No. 17-025, ALJ No. 2016-FRS-71 (ARB May 24,
2017): Appeal dismissed because the Complainant did not respond to the ARB’s order to show
cause why the appeal should not be dismissed for failure to file an opening appellate brief. The
ARB noted that because of the Complainant’s pro se status, it had reviewed his petition for
review to determine whether the Respondent should be required to respond. The ARB
determined, however, that the Complainant’s petition did not specify any facts as found by the
ALJ that the Complainant believed were not supported by substantial evidence, and did not state
that the ALJ had erred in applying the applicable law to the facts of the case. The ARB thus
found no reason to require the Respondent to respond.

•

Reconsideration

DOL Administrative Review Board Decisions

MOTION FOR RECONSIDERATION OF DECISION FINDING THAT APPEAL WAS
UNTIMELY DENIED WHERE GROUND PRESENTED HAD BEEN CONSIDERED BY
THE ARB IN ITS DECISION
In Bohanon v. Grand Trunk Western Railroad Co., ARB No. 16-048, ALJ No. 2014-FRS-3
(ARB May 18, 2016), the Respondent filed a motion for reconsideration of the ARB’s Final
Decision and Order Denying Motion to File Petition for Review, After Time for the Filing Has
Expired. The Respondent relied on the parties’ desire to settle the case as the ground for
reconsideration. This factor, however, had already been considered by the ARB in its decision, in
which it had found that the parties’ motion for approval of a settlement was not an exceptional
circumstance warranting tolling of the limitations period for requesting ARB review.

• Standard and Scope of Review
o ALJ Findings of Fact
U.S. Circuit Court of Appeals Decisions

APPELLATE REVIEW; EIGHTH CIRCUIT VACATES ARB DECISION ON
GROUNDS THAT IT ALTERED ALJ’S LEGAL REASONING BUT IMPROPERLY
FILLED-IN FACTUAL FINDINGS TO REACH SAME CONCLUSION
BNSF Ry. Co. v. United States DOL Admin. Review Bd. [Carter], 867 F.3d 942, No. 16-3093,
2017 U.S. App. LEXIS 15020, 2017 WL 3469224 (8th Cir. 2017) (case below ARB Nos. 14-089,
15-016, -022, ALJ No. 2013-FRS-82).
The Complainant started working for BNSF in 2005. He injured his shoulder in 2007 and
immediately reported it. He later filed a Fed

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A823b0e895b563bf5. Public record. Not legal advice.