# U.S. Department of Labor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A8b1934897b3cd11f ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text 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~nle ' Except a_s otherwise provided lfi lh~ Act or it, impkrncntmg 1cg,1ialions., the app)kabk procedural ,uks arc the "Rules of T'ractifan 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:lubib (C Ex.) A-C Respondent snb,nj11ed exhibit, (R_E;._J 1-24. 'Rf 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 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 ar1kites. "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 haJSJ:-' anr case law arldres.sed to !he Act. Rather, it misplaces its reliance on dic/c, in a fontnote C\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. 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;erind 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 challmgct di»atislicd Tuith an OS'.fA prcl1mmary order mkcstponernents 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 ,., ot csiablish the abs~c1ce or presen~~ of a genuine dispute, or that an adverse party cannot pwrlmc 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 liminabk 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 Siallmc , nte,n,l complaint. " Complaina,\l argue, - eonecl)y - lhat events occnrring bcrond the linulatiou., pe,iOO can be admi~tigat,on was nol adverse actio,,. All uf the cited ca.ses were out-of-Circuit and nol from the Al!..13; none wa-' rnnuly blackhstmg could he acticm of which the employee would know nollung. But Complainant here reon a, he asked lo mum This is not a hlac,~J,scing ca. ,,,~' '"'"-'" CAW ,,me--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 Rets tor tolling in any c>c'llt. Tolfo,g is generally avaHabl< in FRSA ca.ses "for reasons wan ante