U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Avenue, N.W.

Washington. D.C. 20210

In the Matter of:

ROBERT A. BARBOZA,

COMPLAINANT,

ARB CASE NO.

2018-0076

ALJ CASE NO.

2017-FRS-00111

DATE,

v.

DEC 1 9 2019

BNSF RAILWAY

COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Robert A. Barboza; prose; Corona, California

For the Respondent:

Keith M. Goman, Esq., and Gillian Dale, Esq.; Hall & Evans, L.L.C.;

Denver, Colorado; and Paul S. Balanon, Esq.; BNSF Railway

Company

Before: James A. Haynes, Thomas H. Burrell, and Heather C. Leslie,

Administrative Appeals Judges

FINAL DECISION AND ORDER

l'ER CUR!AM. This caHO arises under rhe .Federal Rail Safoty Ad of 1982

(.FRSA). 49 U.S.C. ~ 20Hl9 (2008), ati amended by Section 1521 of the Implementing

Recommendations of the 9111 Commission Act of 2007 (9111 ,\ct.), Pub. L. 110-53,

and as implemented at 29 C .F.R. l-'art 1982 (2019) and 29 C.f.R. Part 18. Subpart A

(2019). Complainant Robert I3arboza filed a complaint alleging that the Respondent,

I3NSF Railway Company, retaliated agailrnt him in violation of the FRSA'8

whistlcblowcr protect.ion provision~ becall~<? lie engaged in protoctcd activity.

Complainant appeals from a Decision and OrdHr of a Department of Lah or

AdminiAtrative Law -Judge (A.LJ) issued on Augusl 29, 2018. dismissing the

2

complaint and granting summary decision because Complainant failed to prove a

genuine issue of material fact existed that any timely adverse action occurred,

,JURISl)ICTION AND 8TA."'IDARD Of' REVIEW

The Secretary of Labor has delegated to the Administrative Review Board

authority to review ALJ decisions in cases arising under the FRSA and issue final

agency docisions in the~e matters. Secretary's Order No. 1-2019 (Delegation of

Authority and A~signment of Responsibility to the Administrative Review Board),

84 Fed. Reg. 13072 (Apr. 3, 2019); see 29 C.F.R. § 1982.llO(a).

The Administrative Review Board (Board or ARB) reviews an ALT's grant of

summary decision de novo, applying the same standard applicable to tho ALJ for

granting summary dccision under 29 C.F.R. § 18.72. See Fed. R. Civ. P. Rule 56. To

be entitled to bUmmary decision, the movant must show '·thnt there is no genuine

dispute as to any material fact and the movant is entitled to decision as a matter of

law." 29 C.F.R. § 18.72(a).

DISCUSSION

On March 16, 2017, Complainant filed the instant complaint alleging that

Respondent engaged in adverse action against him because he engaged in FRSAproteeted activities. On August 29, 2018, the ALI i:mued a Decision and Order

Granting Summary Decision because there was a failure of proof that the original

complaint had been filed within 180 days after an adverse action by Respondent.

49 U.S.C. § 20109(d)(2)(A)(ii); 29 C.F.K § 1982.103(d). Complainant filed a petition

for review with the Board, which the Bonrd accepted. Both partie8 filed briefs.

Upon review of the ALJ's grant of summary decision. we conclude that it is a

reasoned decision based on the undisputed facts and the applicable law. The A.LJ

properly concluded that Complainant failed to set forth any genuine issue of

material fact that any adverse actions occurred within the 180-day limitations

period. For this reason, the ALJ properly concluded that Respondent has

established that there is no genuine issue as to any material faet and is entitled to

summary decision as a matter of law.

)

Accordingly, we ADOPT and attach the ALJ's Decision and Order Granti.ng

Summary Decision as the final agency decision in this matter. The complaint is

hereby DENIED.'

SO ORDERED.

Respondent's Motion to strike Complainant's Reply Brief is denied.

•

U.S. Department of Labor

Office of Admmistra1Jve Law Ju<lges

90 Seventh Slreel, Su,te 4-800

San F,aocisco, G/\ 94103-1 516

/410)525-2200

{415)6252201 (FAX)

Issue Date: 29 August 20lff

CAS[' NO. 2017-FRS-00111

In the Maller of

ROIH:RT A. BARBOZA,

Complainant,

l:11\SF RAIL\VA Y COJ\ll'ANV,

RespondCill.

Appearances:

JcffR. Dingwall, l-;sq. 1

for Complainant

Keith M. Goman, Esq.

Gillian Dale, Esq

Paul S. Balanon, Esq.

for i<espondrnt

Ile fore:

Steven B. Bcrlrn

Adrninistrall~e I ,aw Judge

DECISJON A.'ID OUDER GRANTING

SUMMAR\' !lECISION

rhis case anses under lhe Federal Rail Safety AC!, 49 lJ.S.C. § 201 09, and its imple,nmung

2

rcgulat10ns, 29 C.F.R. /'art 1982 On May 11, 2018, Rcspomlent BNSF moved to dis·rni.ss. St'e

29 C.F.R.. § 18. 70(c ). It asserts two groUI1d<s: (l) that Lhis Office lacks junsdidion because

Complainant failed to prosecute his claim before OSHA; aml (2) that Complainant faikd to plead

· Prim to subuullrng Comrlainanl 's opposition lo this motion. Mr. Dingwall nwvcd to withdraw as Complamanl',

counsel. l promionally gr,>nle<I the mOClo", wnLrngcnt on v1r, Dingwall's filing- a timely oppo,ili0n to

Res1,ondc11t's cunel\t mo,1on as well as sm ing complete ,espun.c., to all ofRcsrondem's lhcn-pcndmg 01scovcry.

rhe reqmmnents were aimed at avn1din~ undue delay or prejudice to c.Lthcr party So·e 29 C.F R. § 1t.22( c). Mr.

Dingwall complied with tlie re,quiremcnts, mdudmg the fil111g an opposi!in'l ,o Rcsponde,it's present motion. J then .. , ,•~

g,ante<I tu, motion to willidrn"'. ;\t thts lime, Complainant is ,clfTq,rese,~ed.

'}· [, ";

2

l~ '>

' Except a_s otherwise provided lfi lh~ Act or it, impkrncntmg 1cg,1ialions., the app)kabk procedural ,uks arc the

"Rules of T'racti<c; an<J Procedure for Adrnims,:rativ~ Heanng., bcfo,e lk Office of Adrnmi,trnhvc I "" Judges," 7'J ,,, 1 , ..,

1"" · <

C.F.R l'art lS, subpart /\. See Z9 C.F R. § I ~82 107(a)

,.,;. ,_,

•" .

··-''

i---'

that BNSF Look any employment action adven;e to him within the ~pplicablc 180-day slalulc of

limitations. BNSF &ubmiltcd 24 exhibits in support of its motion.

l'1ior to Ccm1plainant's filing an opposihon. l held a ldcphonc conference with both partie.s'

respective counsel on Jrn1e 4, 2018. I utlOm1cd the parties that l would treat Respondent's

motion as for sumrnary decision, nol a motion to dismiss. The applicable procedural rules allow

an ALJ lo consider summary judgment on tl1e Al J's own motion aitcrnolifying lhe parties of the

facts and that might not be in <lispu!c 29 C.F.R. § 18.72(f)(,). Here, the facts that might not be

in dispuk wen; those a.sserted in Respondent's motion. More to lhc poi:n! is that Respondent was

relying on its 24 exhibits to support its assertions; ils motion went well beyond the

Cumplairumt's plca<lings. As it would he necessary to make ccriain factual <lctcri:ninatium and

~ons1<lcr a numbcr uf,·xhibits, the motion was better treated as for summar_v decision 3

Complainant submitted his '"(lppos,tion to Reopon<lml's :Motion for Summary Decision·• on lnne

18, 2018. He acknuwlc<lg~<l that I had a<lvi,e<l the partie, that l woul<l decide the mo lion on

summary decision under 29 C.f'.R. 18.77.. See Complainant"s Opp. Br. at l (""Dnring a .lune 4,

2018 conii:ormcc call wilh counsel for both partie.s and with Cornplain:mt, the Court a<lvis~<l lhtiL

!he rnstant motion would he taken nnder considcrntion as a Motion fur Summary Decision

pu,snant to 29 C.f.R § 18.72 ") Complamanl submitted three exh1))Jl.s in snpport oi his

. .

oppos,tmn

*

'

Without objection, I admit all c,hihits that the panies ~ubmitted. 5 I will grnnt summary de~iwm

bused solely on Respondent's ,econd argument a failure of proof <>fan adven;e action w1tlrin

the l 80---day limitation~ period.

Facts''

RJ\SF hired Complmnanl as a Lrackman/lahorer in Flagstaff, /\nw,rn in May 2006. C.Ex B at

3 !. About three years later, he transferred to work as a \ruck driver for BNSF, work that he was

still doing in f-ehruary 2016. Id. at 3?.

The safely complaint and Cnmplninm,1 S medical /euw In early Fehruary 2016_ Comp1sinant

went on a medical leave, asscrlmg that he had work-relate<l anxiety and high blood pr~ssuae.

R .Ex. 2 at 98: 12-99: l, 100: l 1-16. I le remained on the leave for nearly 14 months_ tl1rough

\{arch 26, 2017_ Id \"he leaw \Vas Complainant's idea; no one suggested it to him. Id. al

' See FW. R. CIV. P. 56(d) ("'If, on a mo~oo under Rule 12(b)(6) !for Jailurc to state a claim upon whid, rchd can

be gra11tcd] or 12( c) [fo, judgment on ihe pk~tlmg; l, matters outside the pleadings are presented lo and not excluded

b)· th< court, the motion must be treated a; one for summary judgment uuder Rule 56:").

' ComplaJnallt snbm,ued e>:lubib (C Ex.) A-C Respondent snb,nj11ed exhibit, (R_E;._J 1-24.

'R<Spundenl moves for pcnniss,o,i to file a .eµl}· brief. As Complamant offered 11cw e,·jdeuce and srgument wllh

his opposit10n and Respoodent's ropl}' 1s limited to that new evidence an,1 a,gumcnl, I grdnl the mollOn and 01dc,

ResJ><lndent's reply fll.l-ll "'"''-' pro tune

" As is legally , equ,red "" ,,,mmary dt<Cis1on, the facts , ccited ate base(! on lhe evidence ,icwcd in the light most

favorable to Complamant as the onn-moving party, I make no credibility dete, mi""'"'"' anO Ju nol weigh the

ev1<lcncc Acrordingly, the fac1S re<llcd m the text dbovc are for purposes <>f llns molwn onli _

-2-

l OI: I 1-16; C.Ex. B al 38 ("l pulled myoelf out of service'"). ft was also Complainant's decision

to return lo work in Man:h 2017 (afler getting medical clearance). Id at 101 :l 7-25.

Complainant began the lease shortly all.er an incident that invol~c,I a safety complaint he made.

R.Ex. 2 at 100:2()-JOJ: !O; C.Ex. n at 38-39. He ha<l been asked [u ride in the back .seat ofan

\'250 truck. C.Ex. 13 al 38. The truck was hauling a !railer that Complainant Sl!Spected was

overweight. Id In his opinion, the safety chains connecting the trailer to lhe trnck \Wre not

heavy enough. Id. He also noted that lhe trailer lacked a sway-control apparnlu.s and a brakecontrol unit. Id.

Complainant told foreman Steve Dulmage that he wanterl to get the trailer \'<eighed. Id.; R.Ex. J.

Dulmage got "up1e1." C.Ex. Ba\ 38. After cmnpluing their work for lhe day, they weighed the

trnikr; it was ovcn,,cight. Id TI1cy returned in lhe F250 10 the terminal, \shere Complainant

··tagged it oul of .sen,ice." Id. al 39.

Complaimnt went to his hotel room. C 1-.x. B a( 39. Dulmage called him and that said

sL1pe1 vi,;or Jimmy Capps [phonetic J w,sntcd lo talk to him. Id Cornplai nant called l app, and

said !hat he wanted to talk about the trailer. id. Capp> said 1hal he did nol want to talk aholll the

trailer; he wanted to let Complainant know that his job had been ''aholi,;hed" along with lliat of

Complaimmt's co-worker Alex Florez. Id. .Florez was informed du:ough the usllal protocol

ll!1der the collective bargaining agreement, but Capps informed Complainant prnmnally. Id

Complainant belie\'Cd Capps ar1<1 Dulmage were reacting to Complainant", safety reports about

the F250 truck. ld fl doe.s not appear - aufi Complainant Jocs not allege - that this was a

termination of the employmcul; it appears 1.hat Comp!~inant could bid for other jobs al BNSJconsiw:nl with his skills ,m<l seniority. See C.J·.x. Bat 4.l.

C'nmplainanl'.I" ,nrer,111/ cvmplaint to Jluman Resrmrces. Complainant went on his medi01l leave.

About Lhree weeks b!cr. on February 28. 2016, he filed an internal compbint with the BNSF

human resources dcpanment. R.Ex. 2 at l l l :10-116:14. H~ a,;serterl that his joh was abolished

in retaliation for his having raised safety concerns with Dulmage. Id., R.E;:_ .1.

On April 15, 2016, a BNSF human resource<; mnnager notified Cornplainan! that, after

investigation, Human Resourcc.s cc,uld not substantiate his allegation ofretafotion. R.f.x. 3.

When Complainant expressed dissatisfaction, BNSF"s Direclor of Human Resources talked with

Cornplaiuam and then wrote lo him on August 29, 2016. The Director stated that, after talking

with Complainant am! reviewing (he investigaling HR managcr'.s file, it h.1d heen deknnined

that her investigation was ·'sound'" and did not substantiate his allegatiuns of retaliation,

harassment. or any mistreatment. R.E.~. 4.

Complainant alleges in lhe cmreut action tbat he continued to email the Director and other

managers into October 2016 about the alleged retaliation, hut there is no evidence on the record

to support that ~llcgmion.

Comploinanl :S inJwy/1/lncss report and HNSF claim.I' inter<'iew On September 5, 2016,

Complainant filed an ""Employee P~r,onal Injury/Occupational Illness Report"" fonn wilh BN~F.

R.Ex. 5. He said that he was firs, tn:med or diagnosed with his condition in 2014, ''over 2 years

-3-

ago." Id. He rcport~d high hlood pressure, a need for mental health therapy. and that he was

mking anlidepress.ant medication. Id.

BKSF claims represenmtivc Kelly Buzhy called Complainant the next day to inkrview hin1

about his report of a work-related condition. C.F.x. R Complainanl rnn.sented to having !he

interview recorded, and a !rnnseript appears on the record. Id.

Complainant told Buzby that he'd had an emotional condition because oflhc wnstcmt ,vork•

related travel and isolation from his family. Id. al 33. The symptoms were high blood prco;urc,

anxiety, and thoughts of suicide and of doing '·detrimental things·• to himself and other<,. J,J He

said lhat his psychiatrist had diagno;cd an mljustment disorder. Id.

Answering Jluzby's qncstions, Complainant stated lhal, in the past IO years, he had one

relationship that la_sted .seven years and anoLher that la,ted three; apparently hoth had ended. Id.

at 33-.14, 45. lie had a 19-ycar-old dang.ht er, a si,lcr, and his father, but he had ,10 cont2ct ,vith

any oflhm1. Id. al 33. I le did sec his mother whenever possible. Id. ¼hen asked ahout

recreation, he stated 1h31 he drank himself to sleep every night for the pasl 1(J years. Id. «! 34.

Complainant told llu7hy that. for lhc past IO years, hc'J bern travelin~ for work on a S\',•itch

maintenance gang. Id. ar 35.' He had .started t1,crnpy earlier, in 20()4,\,ccausc ofprohlems wilh

relationships at home and '·prohlems with lhc issues on the road, which was drinking." Id As he

said, "The drinking w·as my crnkh lo cope_·, Id In his opimon_ his anxiety 'progressed with ...

the abuse of alcohol". '"the isolation and being in the hotel and think in~, ahout what happened

thnt ,foy a! work and as jhe dmnk] more and it inca•a;ingly gels worse ar,d worse and wor.se .

." Id. at 36. Compfoinanl stated thal havJUg bern away from work for ,ix month.son hi, (ou1Tc·nt

medical leave. he had slopped drinking."' Id.

Complainant told Buzhy that he was uncomfortable abo,11 returning to work because human

resources had twice rejected hi.s claims of rctalimion and had done no1hing on his behalf; he'd be

remrning to Lbc same sit11ation that he'd le fl in February 2() l 6. Id. al 3 8 l le described ffR "s

handling of his complaims a, ·'a mental molcslalion." Id at /4()_

Complain.ant descrikd lo Buzby the safely incident in early l'ebruary 2016, asserting again that

his job had bc~n aboli.shed in rctalialion for his safo;y complaint. id at 3 8-39. He· said of ,he

people with whom he'd been working on that crew in February 2016 that iliern had been

"multiple, multiple, rnullipk issues,'" and that lhe one Lbat led to his going out on a medical kave

was ·'the one that broke the camel's back." Id a! 39. He said that he «got resistance trying lo do

(bis] job every day and that's why [he] pulled [himseltJ ... oUL of service because it was creating

a very volatile situation and [he] needed lD be removed from thm siLUation." Jd. M 40.

Complainant also told Buzby that he mighl have a carpal turmel injury from work. C.Ex. Bat

He had noticed lh~ symptnms in tl1e last six monlhs (1,e., starting sometime in or around

March 20 l6), he h~d mentioned the symptoms to~ doctor about three months earlier (June

~ 1.

' "!he high bloa-d prcs.sure had siarled ,ix or seven yea.cs earlier. Id. at .16.

- 4-

2())6); an<l he"d had neurological testing a month heforc this interview. on August .'J, 2016. Id.

lie expected to see a specialist later in the week of this interview. Id at 42.

Finally, Complainat1t told Bu.cby that he was still living in Kingman., Ari.wna and was trying to

get a transfer to California. C.J..x. Bat 43, 45.

/!NSF',,· ,whee ofin,-,,sr,:;alion. Respondent's Operatiog Rules require immediate reports of

workplace injury an<l occllpational illness. R.Ex. 6. Rllle 1.2.5 >kites. "All cases of personal

injury, while on duty or on company prnperty, must be immediately reported to the proper

If an employee receives a medical diagnosis of

manager and tl1e pre.scribed fonn com_rkred .

occupational i Ilness, the employee must report it immediately to the _rm per manager_" R .Ex. 6.

Given Complainant".s report on September 5, 2016, ihal he ha<l susLained a work related injury or

ilJness "over 2 years ago," B:\'SF notified Complainanr on September 9, 20 J6, Lhat it woul<l

conduct an Jnvcstigmi,,e hearing on September 20, 20!6_ "'for the purpose of ascerbining the

facts and dc!em1ining your responsibility, ff any, in conncc1ion with. yonr alkged failure to

immediately report an injnry in 2014 while working as a nuck driver on the Sonthcrn Californ,s

Division." R.Ex. 7. Re.spondenl cited Operating Rule I .2.5. Id.

On September 14, 2016, nNSF notified Cornplsinanl that H>JSJ:-' an<l the llnicm had agreed to

pos1ponc Lhe investigative hearing to September 20, 2016. R.&. 8. On November 9, 2()16,

BKSF and the Limon agreed to a second postponement, Lhi.s time to January 17, 21117. R.Ex. 9.

On December 23, 2016, t:omplainant signed a stmement a,, follows: ''I Robert Bmhoza wss no!

in any way snbmitring a claim for a personal bodily rnjury that occuu-cd on any ofrhc BNSF's

property. Jr was an occupational illness that I had reported on Sep Icomber 6th_ ISigned] Robert

llarhoza 12-23-J6_-, Having rcc~ived this statement_ on January 11. 201 7. JlNSF notified

Complainant it had cancekd the invest, gation "in its entj rety." R. Ex 11 _

Complainant rd urned to work a( BNSF m1 March 26, 201 7. R.Ex. 2 at 98:12-99: I, 100 11-16.

/he OSIIA comp/am/ and case processing m OSHA. ·1 en days before tetnming to work, on

March 16_ 2017, Complainant filW an onlrne complaint with OSI JA un<ler the Federal Rail

Safety Act. R.Ex. 12. By then. he was living in California. Jd. Completing the onlinc form, he

alleged the following adverse actions (apparently from a check box or drop-down !is!): denial of

benefits. discipline, hanissrnentlintimidmion. negative perf01mance evaluation, suspension, and

threat to take any ofthe above. Id. MOSHA l 9. l)e stakd that these adverse actions started on

Se_rtember 9, 2016, occurred again on September 14, 201 6 and Novemher 9, 2016, and were

continuing through the present time. Id.

An OSI-L\Regional lnvestiga!or called Complamant the same day as he filed his complaint.

R.Ex. 13 at OSlJA42. Complainant refru-c<l the investigalor to his attorney. Id. The attorney

told the OSHA inv~stigator that he would file a formal complaint by March 24, 2017. Id. After

several reminders, the ~ttorncy faile<l to sub mil the promised formal complaint. Id. The attorney

-5-

also a~reed to arrange for the OSHA investigator lo interview Complainant.' R.E.x. 17-18.

Eventually, the OSHA investigator gave Complainant",; counsel a final deadline to suhmit a more

dcLaikd complaint. When counsd failed lo meet the deadline, lhe OSHA investigator

recommended !bat OSHA dismiss the case. Only after that did Complainanl's counsel file a

more detailed, formal comp la mt with OSHA on August 17, 2017. R.fu. 19-20 ("Fir0tAn1cnJcd

Compbint'J'

In the Fllil Amended Complaint, Complarnant alleged that he had complained to BNSF

mmlilgcmcnl on February 28, 2016, about '"nwnerous saiety and security issues and rernlimion

and harassment" {including violations nf JlNSF and Department ofTransportation safety rules

and regulativns ): !hm he had com plained directly about safety issues before lhal (including

taking unsafe ··machine~•- O\ll or sen· ice); that llN SF notified Complainant on April l 5. 20 l 6.

thar it would not be taking any [remedial j action based on his complaints; that Complai t1,1nt

comim,ed to pre<;s his con<'crrn: thal he met with the Human Resources Director on or about July

11, 2016, rciterntcd his concerns, and reported 11rnt he had been experie,icing anxiety because of

tl1esc concerns and Lhat he did not feel he could return safely ro work; that on Augu1t 29, 2017.

the Human Resources Director notified him that no action would be taken in resp<Jnsc LO his

complaints; that ('.ornplairmnl continued to email BNSF management (including tk Human

Resources Director) about his cnncems into October 2016; thM, before this, on :'.eptembcr 5.

J.O 16, Compbinant filed the injury/illness report form; rhat the claims representshvc inkrviewed

him on the fo!lowing day: Lhal on September 9, 2016, BNSF notified Complainant nfthe

invesCLgative hearing; dint BNSf r,otilie<l Complainant of postponement~ of the hearing on thr~e

occasions (Sept. 14, J.016: :-.J"v. 9. 21116; Jan. 6, 2017); that BNSF canceled the investigatim, on

January 20, 20 l 7: and that Complainant returned to work on March 27, 2017. R.Ex. 20 at OSI !A

12-1•1.

Finally, Complainant alleged: "Since returning lo work fComplai,~1ntj Barbon has been

subjected to ongoing harassmtn!, intimidation and a hostile work environment due, in whole or

in part, to his having rm.,ed safety concerns; refused to virdate or assist in !he violation of Federal

laws, rule, and/or regu!ahons related Lo railroad safety;,iiling a complaint with OSHA under the

FRSA; and/or for a·porting hazardcm<; safoty anti scrnrity concerns." Id. al OSHA 14.

Discussion

L

Tius Qfftce Has Jurisdiction to _[)ccid~ This Ca,e, Compl;rin_a1n__Properlv lnvokcJ that

Ju,isdiction. and Complainant May Add Allevat10IJS jn this Forum.

Congress delegated lo lhe Secretary of Llbor aulhomy to receive complaints, investigate the

allegations, decide the merits. and n.medy violations oflhc Federal Rail Safety Act. See 49

U.S.C. § 20109(d)(l ), (2). Th~ Secretary, in turn, charged !be Department's Occupational Safety

' l'he ,ec,orU 1, s:iknt a, to whcthe, ( :i,,.,.,J,in:n,rs counsel ar,a,,ged !he !Iltcrvicw. Fmm the ongoing later

couesponJrnce, it appears unlikely <hac Complarnant submitted co on OSHA mterview

' As Complainant's filmg of the VirSl Amended C',ompbmt with OSHA was untimely, OS!IA di;rnisscd the

compLnnl. Cornplainam's reque,t for a hca1i11g hefoce an a<lmmi,Lrati,c law judge foUowed. For the present

litjga110n, OSHA produced to IZesporuknt a redacted copy of Cornplamant'.s First Amended Complaint. which

Respondent suhm1tted as an exhibit rn .,uppnn of JlS pr=t motion. See R.h. 20.

-6-

& Health Adm.inistraticm wilh the re1pon,;ibility to receive the comp la.int.!,, decide whdher an

inve,;tigation was warramed, c<lnduct appropriate investigations, and issue preliminary

deterrnmalions on the merits. 29 C.F.11. *§ 1982 lOJ.\982 l 05. The Secretary authorized the

D<.,'J]amnent's adrninistrutive Jaw judges lo hear and decide de novo c~scs in which any party

"hjectcd fo OSHA's preliminary dctenninations. 29 C.F.R. §¾ 1982.l 06• 1982 109.

Rcsprn1dent asserrs that this Office (OALJ) Jacks jurisdiction to hear Complainant's case because

Complainant faile<l to cooperate in the OSIJA inve..stigation. For this contention, llespornknt

cites no!hing in the Act, the regulations, <>r case law arldres.sed to !he Act. Rather, it misplaces its

reliance on dic/c, in a fontnote C<Jncernin;;, exhaustion of adwinistrative rcm~dies in a Title VJI

case agai,rnt a federal agency, citing Clark v. Chasen, 619 F.2d 111(), 1337 n 18 {9th Cir 1980)

(reversing lnwer court's dismissal that har! bttn based on a frnl<lr~ to exhaust administrative

remedies)."' In Clark, the Ninth Circuit r<:Jccteri the ernp loyn' s argument that, to chllaw;t

ad1nmistralive remedies, the empl"yee w~~ rc,:1u1red To Jo more than fulfill tk statutory

prerequisi/cs lo ~ivil litigation. (, 19 F.2<l at 1115.37_

Here, cxcqll as I w1H discuss with respect lJJ the timelin~ss nfComplainant's lihng of1hc OSHA

cnmplaint, he .satislictl all 1egnlalory reqn,rcmcnts to have his case hea,d de novn heforc ,u1 Al J.

He filed a comp lam I with OSHA. See 29 C} R. § 1982 )03. The regulations do no! reqnire that

the complaint he filed in any particular form: oornpletion of the onlme form wao snffiucnl See

id, 1982.1 OJ(h). TI1c regulations charge OSHA with ~u-ta;n rcsponsihilirics and give 1hc

respondent employer certain opportunities 10 be heard. but they slale no funhcr requir~m~'llb for

cornplainau(s al OSHA. Rather, if a complainaul fails In r<:sp<.md to or satisfy OSllA's inqui11cs

or requests, the cornplair,ant runs the nsk under the regulations that 0'3UA will disrmss tile

wrnpla, nt - perhaps w1thoL11 a full ;nw,11gatinn. See 19 C.F .R § l 982. I 04( e)( I ). Indeed, tlwt is

what happ<.,ned at OSJ IA in !his case.

*

Once OSHA i.ssue,; irn findings and prnlirninary dclerm.ination, inclw.ling potentially a dim,isMl

\\-ithout a full inwstigatiou," party may rl:<Jue.st a hearing heforc an AJ.J. Sa 2') Cf.R

§ 1'!82 I 06(a) This is done by filing objections 1o OSHA's findings and prelimmary

detcnnination withm 30 days. Id. Cnmplainant did that. Much as in Clm*. lhe1e is no basis to

rnquiie Comp!arnant to do more to mvoke this Otlice'sjwis<Jiction.

Nor 1s a complainant limited at th!S Office to allegat(ous that he or she has nnsed at OSHA. To

!h~ contrary, the regulations anticipate that d1e scope "fthe case will develop thrnughoul the case

processing al the Departma:il of Labor, including al OAU. The pleading requirement,; at OSHA

arc extraordinarily infonnal. A e<1rnplamanl may, for example, fik the complaint orally (such as

by telephone) and in any language. 29 C.f.R. § 1982. 103(b). TI1e complainant need nol serve

the comp Iamt on the respondent; OSHA notifies the respondent of!he complain( and its

allegatinns. Id. § 1982.J 04{a). The i-espondent may file a re,;poru.ive positi"n statement, bnt it is

not required lo do so. Id. § 1982.1 04(b). OSHA conducts an initial review, inteivicws !he

rnmplainanl if appropriate, and decides whether to cnnduct a ful I i n,c,l1gation. s~e id.

§ 1982.104(e). Either at that point or following a full in\'cstigation. OSHA issues its findings

an<l a preliminary order. id. § l 982.105. Any party desiring rev1cw may request a de JJOVO

" The Ninth C,rcu,l is contrnlline in Ilic present case; all actrnty ""' m >\ri7ona ur Califo,nia.

- 7-

V

hearing before an AU. id. § 1982.ill6. The AU may not remand the case to OSHA for :further

inve.stigation. fd. § l 982.109(c). Rather. iflhere is jmisdict1011, the AU is lo hear the case on

the merits. Jd. To achieve an apprnpriate adjudication, the judge may allow partie.s to amend

arul supplement their pleadings. 29 C.F.R. § 18.36. h1dced, '·AlJs should freely grant parties

the oppmtunity lo amcnJ their initial filings \o provide more information about their complainl

Sylve.<ter v. Parexel Int'!, LLC. AJ{B No. 07-123 at *10

before the complaint is dismissed.

(lvlay 25, 2011).

In all, the applicable pleading requirements are ve1y infonnal. ln cases being litigated before an

ALJ, the parties o/kn kam the full scupe of lk case through amended plcmlings. mandatory

disclosures, discovery, and other litigation processes. HearinP;s before the Ilepartment's Al Js

are nol subjcd lo !he forrnali1y of fc<le-,al pleading rc,iuircmcnts. See Evans v. Envrrvnmenlal

l'mtec,ion Aisency. ARB No 08-059 (July 31. 2012) (re-jcding in v.histl~blowcr cases

application of the plausibility requirements in pleadings under Ashcroft v_ lqbol. 556 U.S. 662

(7009), or Bd/ A1/w,1ic Corp. v. "/'womb/y, 5'i() lJ.S. 544 (211117)). Thus, as an integral part of the

regulatory ~chcme, a complainant may add allegations al OALJ Lha! he or she <lid not raise at

OSI-L\. See Sy/vn/er. s1<pr"; 29 C.F.R. If 18.36. 11 J therefore conclude that I have juriod,ction to

rnnsidcr all cvide-,icc lhal C"mpbinanl puls bdOrc me on (he mo1ion.

JI

Crnnplainant Failed t<> Offer Evidence nf an Adverse Action Occurring within rhe

Applicable 180-Day Limitat10us Period.

(jeneml /ego/ requirements for ,;umnu,uy decision, On sumrna,y decis,on, l must detenuinc it;

based on the plc~dings, aftidatits. matcnal obtamcd by discow1y or othnwisc, or mat!crs

officially noticed, there is 110 genuine issue of material fact such that the moving p~rty is entitled

10 judgment as a mart er oflaw. See )9 C.F.R. §18.72 ()015), see also. FED. R. CIV P. 56 I

cons;der the facts in the light most favnrable to the nnn-moving paoty. See Andn.wn F. Liheriy

Lobby, Inc, 477 U.S. 242, 255 (1986). I draw all rcasorrnblc inferences m favor ol"!hc nonmoving party and may not make credibility determinations or weigh the evidence. Reeves v.

SandPrsrm !'/umhinf!, f'mducts, Irie., 531) lJ.S. 13.'l, 150 (20110) (applying .same rule in cm;e<;

under FID R. C!V. P SO a,1d 56).

I imimzions pi>rind A complainant alleging a vioJatinn of the employee protection provisions of

the Federal Rail Safety Act must file a complaint with OSHA '·not later than 180 days after the

date on which the alleged v1olat1on . . occur,." 49 U.S.C. § 207 09; 29 c:.F.R. & l 'J82 l 03(d).

111e limitations penod begjus when tl1e employee "knows or reaso,rnbly should know that the

challmgc<l ac1 has occurred." Allen v. US Steel Corp, 665 F 2d 689,692 (51h Cir 1982).

1

' The enLire ad1udicaLo[}' proce<.s al the Deparlmenl nfLabur provide, an .idmini.,irati,·e n:mcdy rn appropriate

l-dses. It wnnul be =d that a cmnplamant ha, failed to oha\Lst admm1<:trat1vc rcrnc<l1cs when tl1e cnrnp/a1nam JS

still processing hJS case at the administrative agency here the Dcpartrnel\t of) ,aho, l!.erneJies ava.dable tirrough

odjud1ca11GI\ st OAl J aJ e part of thO<e ad@OJstrative rerne<lies, /'has, dn exampk uf folure lu exhlrn>t

<1dmini;trali\c remedies WOHld occur 1f a cornplaimml whu 1> di»atislicd Tuith an OS'.fA prcl1mmary order mkc< an

immediate appeal to " l1 S. Court of Appeals. The complainant will have fulled to exhaust ,he reo,ed,a) pr"""""

under lhe Labor Secretary'; regulations, those include a hearing before an AU and an appeal to tlie ~d",;,,;sicar;ve

Review Bo.rrd,

Complaiirnnl filed hi.s OSHA wmplaint on March 16, 2017. The !imitations period excludrn

adv cm~ actions occurring prior to September 17, 2016. The adverse actions that Complainant

alleges almost all fall outside the 180-day limitations period. The ~xceptions arc the follo;;ing:

that BNSF notified Complainant of pl>stponernents of the investigative hearing on two occasions

(Nov~-rnber 9, 2016 and January 6. 2017); that BNSF canceled the inv~stigation on January 20,

201 7; that Complainant received no response when he continued into October 2016 to email

BNSF management (including the Hum'111 Resourc~s Director) afler the Hn.urnn Resources

Director wrute to him ( ontside the limitations period) affrrming Bl', SF' s investigative findings

that it had not retaliated against him, and that, after returning to work on March n, 2017, he was

snhjected to ongoing harassment, intimidation, and a hostile work environment.

Bnt allegations are not enough. To ,aise a genuine is,;ne ol"materiaJ fact and ilms; defcal

Respomknl·s motion for surnrnmy decision, Complainant cannot 1cs1 on his pleadmgs, bnt must

pn'S~Tlt "specific facts showing thal there is a genuine issne for trial.'' See Cdmex Co,p. v.

Catrett, 477 U.S. 317, .124 (1986). A gen nine 1Ssue exists when, ba.secl on the evidence, a

reasnnah/c facllinder conld nile for the non-moving pmty. See Ander:,on, 4 77 ( I. S. at 2S2.

On surnmaiydccision:

A party as.serting !hat a fact ... is g~-rminely dwputed mnst suppon the asscrtio11

by: (i) Citing to parti~ular parts of materials ir\ the record, indmling: depositions,

documents, elc,;:troni~ally stored infom1atim1, a/Iida vits ,., <icdarations,

stipnlarions . ., admiss10ns. mtermgato1 y answers, or oUi~r materials; or (ii)

Showing that !he mater1als citOO do r>ot csiablish the abs~c1ce or presen~~ of a

genuine dispute, or that an adverse party cannot pw<lu~e adm issiblc ~vidence to

suppor\ the fact

2') C.f.R. § J 8. 72( c)(I). lt is not the ALl 's ohligation lo s~arch the n:wrd for m~tcrial s a party

does not cite; the AU may consida other makrial.s bnt l8 noL reqnired 10 do so. 2'J C.F.R.

~ 18.72(c)(3}.

As the Ninth Circuit has explaincJ concerning the bmdens or\ summaryju<igrncnt

A moving party without the nltima1c bmden of pluuasion at tnal . has both the

imtial hnrdcn ofpmdnction an<l the ultimate burden of pe1suasion on a motion for

summary judgment In order to carry ils burden of production. the moving party

mu.st either produce evidence negating an essential element of the nonmoving

party's claim or defCllSe or show thal the mmrnoving party docs not have enongh

evidence of att cssrnlial element 10 carry its ultimate hnrden of pLTimasinn at trial.

In order to carry its ultimate burden ofpersuaswn on the motion, the movmg

party mnst pcrnuade the court tru,t !here is no genuine issnc ol"malerial fact.

lf a movrng patty fails to carry its milial burden ofpro<luction, the mmmoving

pany has no obligation to produce anything, even if the nomnovingparty would

have lk ultimate burden of persuasion at trial. 1u such~ case, the noumoving

party may defeat the mot inn for summary judgm~Tlt without producing anything.

If, however.~ moving party carries its burden of produclion, the nonmoving party

m<JSl produce .:vidence to support its claim or dcfrnse. lf the nomnovlug party

fails to produr:e enough evidence tr, create a gmuine is.sue ofmatenal fact, lhc

moving party wins the motion for summary judgment. But if the nonmoving

party produces enough cvidenr:e !o create a genuine issue of material fact, the

nonmoving party defeats tbe motion.

1'i1ssan Fire & Manne Ins. Co, Ltd. v. Fnlz Companie,, Inc., 21 0 J'.Jd 1099, I !02-03 (9th Cir.

2000) ( citations onurtcd). As it is C"mplainant"s tmnien 1D prove lhal his protected activity was

a conlribuling faclm in an unfavorable persoilllcl action, 12 Ni.,.san Fke applies here.

HNSF nffere<l evider,ce that lhc only conduct that Complainant aJkgcd within the limitatrons

periorl did not amount to adn.,,s~ action 'J hat ,hifts tl1e burden lo Complainant to prorlucc

enough evidence lo create a genuine iss\1c ofmalcrial fact. See Nis.,tm F,rc

rhe record on the present mo!ion contains evidence of two BNSF aclion.s within the lim.it..~t1ons

period: (1) a joint management-union postponcm~Tt! ofBNSF"s investigoTion into "heLher

Complainant timely notified BNSF of a workplace in1ury; and (7) B1',SF"s cancellatinn oft he

i nvest1ga!ion in its entirely.

But Complainant cites no evidence 10 support any of the other allegations said lo have occu1rcd

within the limitations pcnod, and though I am not required to ,~arch for uncited ev,rlcncc, l ha~e

found none. I find no rlecfarntions, tli~covery re.sponses, stipulations. or other documents or

materials to show that ComplainanL continued emailing BNSF management to cnmplain about

rc!.t,lialion w1 Lhin lht' limitations period, anti I have found no e\'irlen,,e to show lhal, afler

returning to work on Mar~h 2 !, 1017, Complainant was subJeded lo nngoing ha,assmcnL

inrinlldation, and a hos Lile work env1romncnl.

··Summary judgment 'is the '·pul up or shut up" moment in" law~ml, when a party rnust shov,

what evidence it has that ,..oul<l convrnce a trier of fact to acu,pl its version of e,·cnts. ,., Johnson

v. Cumbndge Industries. Inc, 321 f.Jd 892, 901 {"/th Cir. 2001), quotwg Schacht v Wisco11sin

D,p't of Corrections, 175 f.3d 497, 504 (7th Cir. 1'J'J<J). llcrc. the record is devoid of evidence

(even viewed in the light most favorable to Complainant) baoed on which a reasonable factfinder

could find that H~SF took either of these adverse actions.'' Complainant thus ha.snot shown a

" See Palmer v. Canadian N~1 ·t Ry., ARB No. 16 035 (Sept lO, 21116) (rri»ucd).

"· Evrn 1! !here ,,.,a, ,.,,;dcncc that HJ\'SI' corurnucd to supply TIO relief to C.:,mplomant ba\Cd on lus inte, ""I

complaint of retaliation, any claim un lhat theory would be nnomcly, fhe hu= resource., manaee1 notified

Complainanl on April 15. 2016, that, after i1n-e.<t,gation, Human Resources found lus complain! uru.ub,tmtlate<l.

When Complamanl cxpm,scd <lissatJsfuc,tion, IJNSF's Director ofl-lumau Reso\m:;e, talked u,1th Com1,laU1ant,

reviewed the file. and wrote to Complainanl on August 29, 201 h, affimring lhc managers dere,mjnation. All ot thi.s

occurred l,eyond the lim;i..tions pcriod.

Once ,,n employer notifies the affocted pe,S<m of the adver.c actlon, the 1; miLotions prnod begins to ru,,; the

employee canno! rcscl the limitations petiod simply by repeating the same ,equesl dild ob!:nning the cmploye,";

repetition of the >rlmc dcrual (or otl1er

dcimmnatlon). See SwrnJl v, Union Pac R.R. Co .. No. 14-CV-7891,

20)6 WL 128036 at •3 (N.D nl faJL 12, 2016), ~/j'd, 678 F. App'x 423 (71h C!J", 2017) (fltlc VII) (re,soning lhal

the limi<ahons pmod "would be meanu,gless if[ employee] could , eset it simply by rnqucstrng the same surgcry a

second time and again heiag !old ·no m)_ "When an inioa/ discriminatory act "timc-haned, a laier related event "

ad,=

genuine issue as to ongoing denials of reguests for HR i1westlgations or ongoing harassment,

intimidation or a hostile work erwironment.

I turn to the timely incidents on which the nowrd pmvides supporting dommentalion. 14 These

are (1) BKSF's notice !o Complainant ofajnintly agreed BNSF/Union postponerneut oflhe

investigation hearing, and (2) BNSJ-i' s cancdlatinn of the investigation in its entirety. I find

neither oflhese adverse.

BNSF assnb that nntke of fill i11vestiga!ory heming to dder1nine wheiher disciphm; is

appropriate u.tider BNSY.s npernting rules i.s not an adve1se adion. To the contrary, however,

where, for exarnpk, a letter charging a disciplinary offense affects the workm·'s personnd record

and causes anxiety or emohonal distress, that is sufticicnlly adverse lo resi.st snnunmy decision.

Stu/lard v. Norfolk Southern 1/y, Co., ARB No. 16-028 (Sept. 29. 201 7) at *5.*7, citing William,

v. American Airlines. ARB No. 09-01 ~ (Dec. 29, 201 0)."

Ccm1plainant repo,ted anxidy and emotional distress 10 Bn:zby. lfBNSF decided llie

investigation again.st Cornplainaut, it wnulrl ba vc resulted in serious rl1scipline. Combined with

any other serious disciplinary rnfraction during B"N SF' s '·re,·iew pe,;o,1" (typically I lo 3 years),

it coultl lead to a termination from ernployrn~nt; it therefore could seriously at1CC! Cnmplainanl's

personnel record und.,,- the progrcssi,e d1.sciplinc policy. I llicrefore condude that BNSF is not

entitled to wmmary rlisposilion nn wl1cthn the notice of investigation was adverse acllon.

Instead, I conclude that JJNSF is entitled 10 summary djsposition ms to the no Lice itself because

BNSF g:avc Complainant 1hc nollce of mv~stigation rn_,1,ide rhe l1mita1ions periorl. The notice

v. as a complete ,md linal statement that a disciplmary investigation would oc~ur. It wos

not act;e>nabk if 1! i, rncrel}' , conmcucncc of the Jirot. to he act,OLMbk, the law evenl must rnvo/ve an indcpe1nlcnl

act 0f d1scnrnmation." /frown " U1,iftcd Sd,,,oi Dist. 50!, "fop~k,; Pub. Schools, 465 F.3d l 164, U87 ( Wth Cir,

2006) (Tllk Vil and 47 U.S.C. ~ 1981), ,ee Delaware Sia<e ( 01/cgc v Hfr ks, 449 lJ.S. 250, 2)7 ( 1080). Thus, ai\er

au employer previously informed at1 rn,ployce that he wa; no! eligible for rdun:, thccmployer 'o repetition ofth

statement whe,n employee's union 1efmed him frn work <lid not restarl :he limitations period Se,' Johnsrn v.

Hnus/on Nana, Inc., AKH ~o. OO-Go4 at 4-5 (ARB Jan. YI, '!003)

Complai11aot',; internal compla,m was lo BNSF s lh,mfill Rcsou,ces Department As 11!0 hc~d of that<lepartmcnt,

the Director expressly affome<J lhc rejection of Complainant's internal oomplatnl. [hat was fin,l noti,c of the

adverse decis,on OlJ The cumplamt The hrnilation, penod began to run on August 29, 201 6, because as a ma(u,r or

Jaw Complainar,t should ha,·c known from 100::1pt ofrhm Lhe Director's de!mnination th.a, JJNSF's decision wa,

"firul. dcfimtive, and uncquivc-cal · Sff Jen/cue, ,, /J.S I::n,irmtmenl"/ l'rotoctfon 4gmc.y, ARB No. 98-146 al 13

(ARB Feb. H, 2003) It was a wmrnunicat1ou lhal was ··c0ndus;ve" and "free of misleadmg possibilities," Dugg..r

c linionl'ac,fic RR Co., ARB No 16-0n ,., 2 (ARB Au~. 17, 2017) Colllplainanl could not JesTar-1 lhe limitations

veriod by continuio,g to repeat or argue a6ou: lhe >llmc , nte,n,l complaint.

" Complaina,\l argue, - eonecl)y - lhat events occnrring bcrond the linulatiou., pe,iOO can be admi~<1ble o,

background. For exi,rnpl½ tn uuderSland what the Joinl BKSFiOnion puslponcmrnt of,he imcstigati,·e hearing on

(.0mpla;nanh injwy report, I mus! ha;e iu mh,d thal, ouL,idc tlJe hnrilalwns period, B.!'-ISF notified Cornplamant

that \l=e v.ould he an investigation. Thai background is necessary to unde.rS!an<l what was haing p05lponcd. But

this kind of background iuformatiou will not satisfy Cornplaina11t's obligolion to show facts ,utficicnt t() establish a

genuine ,ssue about an adv,,;s, action that occnrred 1<,thin the 1,milalion, period.

'' Respondent cites s,wenil cases rn suppor( of it, argume,~ (h,, the notice of invto>tigat,on was nol adverse actio,,.

All uf the cited ca.ses were out-of-Circuit and nol from the Al!..13; none wa-' rnn<wlling. T11e /\RB '""'' cited m che

lcxt above are wnlrolhn:;,

- 11 -

complete at the time Complainant received it: s~-ptcmbcr 9, 2016. 16 Complainant's OSJ !A

complaint therefore was nol Limely as to lhe notice itself.

And the actions m which BNSF c:ngageJ within the limitations penod were not advcr,c, BNSF

agreed with Complainant'~ union t" a p,,stponement of the hearing, laler, it cancelled the

investigation altogether. Far from adverse, the cancellation of the investigation was Jawrahle 10

Compla1.I1ant. The p"slponement was neither positive nor negali~c; by agreement of the pa1ties,

it was simply a change in the date for the investigative hearing Complainant offers no argummt

to explain what is adverse about an agroo.l n:sche<luling, and l see nothing adve1sc about iL

Thus, oflhc llmely allegations nf adverse action, Complainanl failed to raise a genuine issue on

some when he failed to offer any evidence of what ocwned, and he failed as to The othrs

hecause, although his evidence was suffic1tm\. BNSF'.s action~ were not advcrs~.

No ha.<is to d,:fer ruling. Complairulnl arg:ucs !hat, even if he cannot currently show a genuine

i.ssue of m~terial fact, he might learn more <lunng discovery. I le argu~-s that an ~mployer in a

wbistlcblowcr case has better access to ,elevant evidence, and a wmplainant must ,ely on

discovery !o gather the needed evidence.

Even rnnstrning this as a request to defer a ruling on Rcspondent"s motion until Comp!t1inanl has

ha<l additional time for discovery. I woulJ <l~ny the request. The onJy ~vidmcc !ha! Complainant

needs concerns adverse action Tbe limitations period only begins lo nm on an adverse actwn

when the complainant knows or shnuld know that the adVCTSC action has happened. See Allen v

[1.S. S1ei,f Co,p., supra. 665 F.Zd at 692; .rne abo. fr1. IJ a bow. Thal is why an employ~c who

wikrn an adv~-rse action al mo.st always kJ!ows or should kn,,v,, that it has occrn,ed

Adverse actions include discharge. d~~nouon, suspension, reprimand, anJ sud, C<Jnduct as

intltllidat10n. tlm:.,ts, rcstrnini11g, coercion, blacklisting, or discipli11ing. See 29 C.F.R.

§ 19~2.1 02(b). Although nol impossible, it is difficult to irua(;inc an advnse action ofwluch an

employee would be tlllaware at or about the time 11 occurrc<l '-' Discovery <;horrid not be

11ecessary, or if necessary. should n"( be complex or time-consuming for an unployee to know

that an arlverse action ruls occuned Most often a complomant could resist summary rlecision on

advenic anion by submilling a declaration in which he or she stales what happened.

In ,my event, Cnmplainant failed lD comply with the p1ocerlural reqmr~ments lo defer a ruling on

l{e.spondent's motion. The applicable rule requires the non-moving party to .show '"by :,itidavil

or dcclarnlion that, for specified reasor1s. it cannol prcs,ml facts es<;ential to justllj its position.'"

29 C.F.R. § 18 72(d). Represented by counsel. Complainant suhmirted no ,lcdaration or

affidavit ahout facts being unavailable to him at this time. E,cn in his brief, he offered no

specific reasons that he wuld not presec1t facts ncc<li:d for his opposition at this ti.me. BNSF has

rcsp<mdt:d lo all discovery Complainant prnpoundul and Complainant is nol pursuing a morion

" See in, 13 for a d1;cussion of when an a1h= aclion occurs.

" Of all th= forms of adverse actw"• <>uly blackhstmg could he acticm of which the employee would know

nollung. But Complainant here re<umed lo "'urk di B1''SF a.s M>on a, he asked lo mum This is not a hlac,~J,scing

ca.<£

- 12 -

lo compel. He has not idenl!Jicd what discovGry devices he would use or what he wouhl m;k to

obtain the evidence he ncc<ls to oppose thjs motion. This does nol meet the regulatory

requirement. Jd.

Equitahle tolling. Complainant doe.snot assert equitahle rnlli11g. He was rcpresenterl by wunseJ

from the time the c~sc was at OSHA Lhmugh the briefing on this motion. l therefore need not

rrnch the issuc. 1s

For the foref'oing r~asons. Hespomknl B~'SJ<' RailwaJ• Company's rnot;on for summary decision

is GRA..NTED. Complainant's claim is DENIED and l)ISMTSSEO. Complainant shall taking

n0rhing by reason of his rnmplaint.

so ORDr:ru::o.

,,,... '"""' "> ,,,~' '"'"-'"

CAW ,,me-< C>-if, eo,o,~o,

"" c,am•,ea e,e, ~ vU• ,_.,,

.,,,.,~ .. -, - , _ , ,-aa ••

'••o=, s--c•, caes

=,~, """""""""

S !"EVEN l-1 BLRLD-!

Administrative J a\.\- Judge

I\OTlCE OF APPEAi. RIGHTS: 1 o appeal, you must file a Pd1tion for Re,icw ('-l'et,tion'")

v.ith th~ Administrative R~v,ew Board ("Board'") within fourteen (J 4) days of the dare of

issuance of the administrative law jlidg~'s decision. The Board"> address is: Administrative

Revin, Board, lJ.S Department ofL~bor, Solle S-5nO, 200 Consjjnnion 1\\enue, :,,,w,

Wa~hington DC 20210, frn tmlilional paper filmg Ahernati,·ely, the B"ard offers an lclectrouic

File and Service Re<J\lCS( (EFSl{) system. The EJ, SR for electronic filrng (cFile) penmts the

suhmiSoion of fom1s and documents lo the Roard through the lnt~met in.stead of using pm:tal

mail ~ml fax. The Fl'SR portal allow<; parties lo file nev. apprnls electronically, receive

electronic service of Roard issuances, tik briefs and mo!ioru; dectrnnical\y. and check the slalus

of cristrng appeals via a wcb-baserl ,ntcrfo~e accessihlc 7.4 hours every day. No paper copi~s

need be Jiie<i

" Complsrnant has shown no ba>ts tor tolling in any c>c'llt. Tolfo,g is generally avaHabl< in FRSA ca.ses "for

reasons wan ante<l by apph,oabk ca.so law." 7.9 C.F.R. § 1982 l OJ(d); see al,o Hyman v, KD Re.<Ou,u,, ARll :Ko.

09-076 (Mar. 11, 2010) (Sarbanc,,-Oxley AC!) al g Applicable ""'" law allows equllabk lolling ''wben th<

defendant has acl!vciy misled the plaurtiff regarding the cause uf act10n: when lh~ plaintitfha.s <n some

,,,-,..,,or<lwary WdY been preveme,J from filing Im action; am! -.,hen the pfainl1ffhas raised the pn-m<"' statutory claim

,a issue bul has done so ill tl!e wrung forum ,, i.;,/o/ol i- NASA. AIHI No 10.027 (Dec. 20, 7011) al 4 (Clean Alt

Act).18 cinng S, hool D,s, o(CitvofAl/~n/own v Marshall, 657 F 2d 16 (3rd Cir. l()~l); /1W1am., v flmled

A1r/i,re.t, Tm-., Allfl No, 08-063 at 2 (Sept, 21, 2009) (cuing samd. Thi, record oon~lins no facts to su1,po,1 lollrng

11nde1 any of!ht,e conditions.

" 13 -

An c-Filcr must rcg!Slcr as a user, by filing an on line registration form. To register, lhc c-Filcr

m11-st have a valid e-mail address. The Board must vali<la!e thee-Filer before he or she may file

any c-Filcd docunrnnl. After the Board has accepted an e•filing, it is handled JIISl as it woul<l he

had it been filed in a more traditional manner. c-Filers will al.so have access to electronic service

(eService), which 1s simply a way 10 rece1v~ documents, i.ssued hythe Board. tlu:ough the

lntcmct instead uimailing paper notices/documents.

lnfo1mation regarding registration for acct;SS to lh<: EFSR system, as well as a step hy step user

guide and FAQs can be tO\md at hllps:/ldul-appeab.entellit,ak.com If you have any question~

or comments, please contact: lloa.rds-El'SR·Hclp(lijdol.gov

Your Petition i.s considered filed on the date of its postmark, foe.simile transmjtta.1, or c -tilmg; bul

if you file it in rerson. by hand rich very or other means, it is filed when the Ilnard receive~ 11.

See 29 (' F.R. § 1982. l l O(a). YouT Petition mml specifically identify the finrl1ngs. conclusion,,

nr nrde,s to which you object. You waioe any obJections you do not misc spcc,fically. See 29

C.F.R. § 1982.llO(a).

At lhc lime ~ou Jile lhe Petili011 with th.e Boa.rd, you must serve it on all parties a.swell as the

('hief Arlministrative Law Judge, US Department of l..ahor, Office of Admim~lra!ive Law

Ju,lges. 800 K Stred, NW, Suite 400-North. W~s..lungton, DC 20001-8002. You must also scr,c

the Assistant Secreta,y, Occnpariorn,I Safely and Health Administratior, anrl, in cases in which

the As,;istant ~ec1eta1y is a pmty, on the Associate Solicitor, Division offoir Labor Slandards.

See 29 C.F.R. § 1982.I IO(a).

Tr filing paper copies. you must file an urig:inal an<l four copies oft he petition for review wilh the

Roan!. toge the,, wilh one copy of this decision. ln a(ldition, within 30 calendar days of filing: the

petition for review you ronst file wiili lhe Board an original and four copi~s or a supporting legal

briet of points and authorities, not to exceed thirty doublc-~paced typed pages, and you may file

an appendix (one copy only) consi~ling ofrelevant excerpts oflhc record o[ the proceedings

fiom which the cippeal is lukm. upon which you rely in wpport of yuur pclllion for review lf

you c file your pclilion and opening hrief, onlyoue copy need be uploaded

Any rc,,ponse in oppnsition to a petit10n for rc,i~w must be filer! with the Board within 30

calendar <lays from the date of tiling of the petitioning party's supporting kgal brief of points

and authorities. The response in opposition to the pcht!On for review must include an original

and fotar copies of the responding party's legal bnef of points and authorities in opposition t<J the

petitior1, not to exceed th!r1y double-spaced typed pages. and may include an appenrlix (one copy

rmly) consisting ol"rdcvant excerpts of the recoTd of the procceding.s from which appeal hl1s

bem taken, upon which the resp,:,nding pmly relies. If you e-File your responsive brief, only one

copy need be uploaded.

1Jpoo receipt of a legal brief filed in opposition to a petition for review, the petitioning party may

fik a rq,ly brid (original and four copies), no\ lo exceed ten double-spaced typed pages, within

such lime period a.s may be ordered by lhe Board. !fynu e- file your reply brief, only one copy

need be uploaded

- 14 -

If no Petition is timely filed, the adtninistrntive law judge's decision hecomes the final order of

the Secretary of Labor punmant to 29 C.F.R. §§ 1982.109(e) and 1982.I 1O(a). Even if a Petition

is timely filed, the administrative law judge's decision bce<1mes lhe final order of the ScLoetary

ofl.abor unless lhe Board issl!es an order within thirty (30) days oflhe date the Pel!lmn is filed

notifying the parties that it has accepted the case for review. See 29 C.F R. §§ \ 982.1 lO(a) and

(b)

- l5 -