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200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

ROBERT K. BRUCKER,

ARB CASE NOS. 2018-0067

2018-0068

COMPLAINANT,

ALJ CASE NO.

2013-FRS-00070

DATE: November 5, 2020

BNSF RAILWAY COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Joseph L. Bauer, Esq.; The Bauer Law Firm, LLC; Saint Louis,

Missouri

For the Respondent:

Jacqueline M. Holmes, Esq.; Nikki L. McArthur, Esq.; Jones Day;

Washington, District of Columbia

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

Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. Robert K. Brucker (Complainant) filed a complaint under the

whistleblower protection provisions of the Federal Rail Safety Act of 1982 (FRSA)1

with the Occupational Safety and Health Administration (OSHA) on January 9,

2013. Complainant alleged that his employer, BNSF Railway Company (BNSF or

49 U.S.C. § 20109 (2008), as amended by Section 1521 of the Implementing

Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Pub. L. 100-53, and as

implemented by 29 C.F.R. Part 1982 (2019) and 29 C.F.R. Part 18, Subpart A (2019).

Respondent), violated the FRSA by terminating his employment because he

reported a work-related injury. OSHA investigated and dismissed Complainant’s

complaint. Complainant filed objections to OSHA’s findings and requested a hearing

before the Office of Administrative Law Judges (OALJ).

Prior to the hearing, the Administrative Law Judge (ALJ) granted

Respondent’s Motion for Summary Decision on May 1, 2014. Complainant moved to

reconsider and supplement the record. The ALJ denied Complainant’s Motion on

June 20, 2014. Complainant filed a timely petition with the Administrative Review

Board (ARB or Board).

The Board determined that Complainant raised genuine issues of material

facts regarding whether his protected injury report contributed to Respondent’s

decision to fire him. As a result, the Board vacated the ALJ’s decision and

remanded the case to the ALJ for further proceedings on July 29, 2016.

On remand, the ALJ held a hearing in this matter and issued a Decision and

Order Denying Complaint (D. & O.) on August 15, 2018. For the reasons below, we

consolidate the appeals and affirm the ALJ’s D. & O.

BACKGROUND

1. Work History and Injury Report

On June 24, 1993, Complainant applied for employment with Respondent’s

predecessor, Atchison, Topeka Santa Fe Railway Company (ATSF).2 On his

employment application, he checked the box “no” in response to the question, “Other

than traffic violations, have you ever been convicted of a crime?” The end of the

application contained an “Applicant Statement” that the applicant must sign

certifying, “I have answered all questions to the best of my ability. If employed, I

realize false information will be grounds for dismissal at any time, regardless when

such information is discovered.”3 Complainant alleged that he answered “no”

because Mr. David Underwood, Respondent’s assistant superintendent at the time,

told him that the railroad was only interested in felony convictions.4 Complainant

began working for ATSF shortly after submitting his employment application.5

D. & O. at 62; CX 118; RX 2.

Id.

D. & O. at 69.

D. & O. at 6; Hearing Transcript (TR) at 60.

In a letter dated December 10, 2009, Complainant, through his attorney,

informed Respondent that that he had sustained a work-related shoulder injury.6

On January 26, 2010, Complainant filed an injury report with Respondent.7

Complainant filed a Federal Employer’s Liability Act (FELA) lawsuit against

Respondent on October 14, 2011.8

Complainant testified that after he filed his injury report, his supervisors

changed their behavior towards him.9 Complainant stated that they intensified

their scrutiny of his work, but not other employees’ work, on every shift until

Respondent terminated his employment.10

2. Respondent’s PEPA Policy and Complainant’s Disciplinary Issues

Shortly after reporting his injury and during the period that followed,

Respondent cited Complainant for violating employer safety and absenteeism

policies. On May 4, 2010, two co-workers allegedly observed Complainant driving,

and then approximately thirty minutes later, riding as a passenger in a yard truck

without a seat belt.11 Complainant was cited for failing to follow the vehicle

operations rule. Respondent investigated the matter and assessed Complainant a

Level S 30-day record suspension and three years of probation.12

On June 15, 2011, Complainant and three co-workers were servicing three

locomotive units that were attached together.13 The locomotive units were under

“blue flag protection” which signifies that “workers are on, under, or between

equipment and therefore that equipment may not be moved unless and until” an

employee receives permission to operate the engine from the employee in charge,

the blue signal has been removed, and all workers have been warned that the

D. & O. at 85; CX 2.

D. & O. at 6.

Id. at 86.

D. & O. at 6; TR at 70.

Id.

D. & O. at 80.

Id. Under Respondent’s Policy for Employee Performance Accountability (PEPA)

policy there are three severity levels of discipline. The first is a standard violation, the

second is a serious “Level S” violation, and the third is a stand-alone dismissible violation.

D. & O. at 21. The policy states that a second serious violation “committed within the

applicable review period may result in dismissal.” D. & O. at 90; RX 117-4.

Id. at 80.

engine was being moved.14 While servicing the locomotives, Complainant’s coworker failed to set the hand brake.15 “Complainant tried to ‘train line a consist’

meaning that he was taking the electrical and air between two locomotives and

putting them together to make a ‘consist.’”16 In doing so, a locomotive went into an

emergency state and dumped its air. Complainant then released the air brakes

which caused the locomotive units to roll.17 The rolling units caused a fuel stanchion

being used by an employee to “snap off.”18

Respondent investigated the incident and determined that the locomotives’

movement was caused by a combination of Complainant’s co-worker’s failure to set

the hand brake and Complainant’s actions.19 Respondent assessed Complainant a

Level S 30-day record suspension and three years of probation for violating several

Mechanical Safety Rules (MSR).20

In 2012, Complainant received counseling for unauthorized absenteeism ten

times between February 2005 and February 2012.21 Prior to this, the only formal

discipline Complainant had received in connection with his absenteeism was a

record suspension on December 16, 2005, for being absent without authority and

failure to follow instructions between November 30, 2005, and December 15, 2005.22

Complainant signed the counseling notice under protest because he thought that he

was entitled to leave under the Family Medical Leave Act; he asked for but was not

permitted to have union representation at the counseling session; and because he

was told to sign the counseling notice or be charged with insubordination.23

3. Termination

Through discovery accompanying Complainant’s FELA suit, Respondent

learned on or about July 10, 2012, that Complainant had been convicted of a

Id.

Id. at 80-81.

Id. at 81.

Id.

D. & O. at 67; CX 16; RX 23.

D. & O. at 7, 34, 67.

Id. at 34.

crime.24 On August 8, 2012, Respondent investigated to determine whether

Complainant had been dishonest and failed to furnish information on his

employment application.25 Complainant admitted during the investigation that he

lied on the employment application.26 On August 16, 2012, Respondent sent

Complainant a letter notifying him that he was being dismissed for violation of

MSR Rules 28.2.7 and 28.6.27 Mr. Bossolono, Mr. Cargill, Mr. Harris, and Ms.

Hyatt, Respondent’s general attorney, all participated in the decision to terminate

Complainant’s employment.28 Complainant filed a complaint with OSHA claiming

that his termination from employment violated the FRSA. On remand from the

ARB, the ALJ held hearing and determined that Respondent did not violate the Act.

This appeal followed.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the ARB the authority to issue

agency decisions in review or on appeal of matters arising under the FRSA.29 The

ARB reviews questions of law presented on appeal de novo, but is bound by the

ALJ’s factual determinations as long as they are supported by substantial

evidence.30 Substantial evidence means “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”31

DISCUSSION

Id. at 81. On January 25, 1985, Complainant was arrested and charged with assault

in the first degree. Id. at 81; RX 9. On May 7, 1985, Complainant pled guilty to

misdemeanor assault and was sentenced to one year in jail which was suspended during

two years of supervised probation. Id.

Id. at 63.

Id. at 82; RX 24-30.

D. & O. at 82; CX 25; MSR 28.2.7 prohibits employees from withholding information

or failing to provide all the facts to those authorized to receive such information “regarding

unusual prevents, accidents, personal injuries, or rule violations.” Conversely, MSR 28.6

prohibits employees from being dishonest. CX 122-123.

D. & O. at 82.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020); 29 C.F.R. Part 1982.

29 C.F.R. § 1982.110(b); Jacobs v. Liberty Logistics, Inc., ARB No. 2017-0080, ALJ

No. 2016-STA-00007, slip op. at 2 (ARB Apr. 30, 2019) (reissued May 9, 2019).

Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938).

The FRSA prohibits a rail carrier engaged in interstate commerce from

discharging, demoting, suspending, reprimanding, or in any other way retaliating

against an employee who engages in certain protected activity, such as reporting a

work-related injury or illness.32 To prevail, an FRSA complainant must establish by

a preponderance of the evidence that: (1) he engaged in a protected activity as

statutorily defined; (2) he suffered an unfavorable personnel action; and (3) the

protected activity was a contributing factor in the unfavorable personnel action.33 If

a complainant meets his burden of proof, the employer may avoid liability only if it

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

unfavorable personnel action in the absence of a complainant’s protected behavior.34

The ALJ determined that Complainant’s December 10, 2009 attorney letter,

January 26, 2010 injury report, and FELA lawsuit constituted protected activity

and that Respondent’s actions of walking Complainant on and off the property in

front of his co-workers, conducting an investigation under Collective Bargaining

Agreement (CBA), and terminating Complainant’s employment were adverse

actions.35 However, the ALJ found that Complainant’s protected activity did not

contribute to the adverse actions Respondent took against him.36 Both parties

petitioned the ARB for review of these determinations.37 Accordingly, we turn to the

ALJ’s determination whether Complainant’s protected activity contributed to the

adverse actions Respondent took against him.

49 U.S.C. § 20109(a)(4).

Seay v. Norfolk S. Ry. Co., ARB Nos. 2014-0022, -0034; ALJ No. 2013-FRS-00034,

slip op. at 6 (ARB Oct. 27, 2015).

Id.

D. & O. at 86-89.

Id. at 89-91.

In its cross-petition, Respondent also challenges the following: (1) that

Complainant’s FELA lawsuit was not protected activity; (2) that Complainant’s attorney’s

letter to Respondent was not protected activity; (3) that Respondent’s compliance with the

CBA’s procedures and investigation was not an adverse action; and (4) that the Railway

Labor Act (RLA) precludes Complainant’s claim. Respondent’s Opening Brief in Support of

Petition for Review at 7-12. As we are affirming the ALJ’s finding of fact that Complainant

failed to prove that his alleged activity was a contributing factor in the termination of his

employment, all other arguments rendered are moot and we make no further

determinations on the ALJ’s protected activity, adverse action, and RLA preclusion

analyses.

On appeal, Complainant asserts that the ALJ ignored or downplayed

Respondent’s actions taken against him which began shortly after he reported his

injury in January 2010 and continued until his dismissal in August 2012; that

Respondent’s two intervening investigations were far from fair and impartial; that

the ALJ erred in finding that Complainant lied on his employment application; and

that the ALJ ignored ARB precedent regarding contributing factor causation.38

Conversely, Respondent argues that substantial evidence supports the ALJ’s

conclusion that it sincerely believed Complainant was dishonest; that the two-anda-half year gap between Complainant’s alleged protected conduct and his dismissal

undermines any causal inference; and that Complainant did not prove contributing

factor causation by showing Respondent discovered his dishonesty in connection

with his FELA lawsuit.39

To establish a violation under the FRSA, a complainant must show that the

protected activity was a “contributing factor” in the adverse employment action.40

“A contributing factor is ‘any factor, which alone or in combination with other

factors, tends to affect in any way the outcome of the decision.’”41 The Board has

held that while close temporal proximity alone does not compel a finding of

contributing factor causation, an ALJ’s finding of causation may be affirmed when

the ALJ relies on a large variety of both direct and indirect evidence in making his

causation determination and does not rely on temporal proximity alone.42 When

determining whether protected activity was a contributing factor in an adverse

personnel action, the ALJ should be aware that, “in general, employees are likely to

be at a severe disadvantage in access to relevant evidence.”43 “Thus, an employee

Complainant’s Brief in Support of His Petition for Review by the Administrative

Review Board at 22-25.

Respondent’s Response Brief in Opposition to Complainant’s Petition for Review at

11-19.

49 U.S.C. § 20109(d)(2)(A).

Coates v. Grand Trunk W. R.R. Co., ARB No. 2014-0019, ALJ No. 2013-FRS-00003,

slip op. at 3 (ARB July 17, 2015) (quotation marks and citations omitted).

Riddell v. CSX Transp., Inc., ARB No. 2019-0016, ALJ No. 2016-FRS-00082 (ARB

Jan. 22, 2020).

Powers v. Union Pacific R.R. Co., ARB No. 2013-0034, ALJ No. 2010-FRS-00030, slip

op at. 9 (ARB Jan. 6, 2017) (citing Palmer v. Canadian Nat’l Ry., ARB No. 2016-0025, ALJ

No. 2014-FRS-00154, slip op. at 59 (ARB Sept. 30, 2016) (reissued Jan. 4, 2017)).

‘may’ meet his burden with circumstantial evidence.”44 As such, a contributing

factor in a whistleblower case is “not a demanding standard.”45

Upon our review of the evidence, we agree with the ALJ that Complainant

failed to meet his burden to show that his alleged protected activity was a

contributing factor to the decision to terminate his employment. The ALJ correctly

relied on several factors to support his determination. First, Complainant admitted

during the 2012 investigation that he lied on his employment application. Although

Complainant argues that the ALJ erred making this finding and believes his

testimony regarding Mr. Underwood’s application instructions should be entitled to

more weight, his argument is not supported by the record. Complainant testified at

the August 8, 2012 hearing that he did not inform Human Resources that he had

been convicted of a crime prior to Respondent’s discovery, that he understood the

application statement and what his signature indicated on the application

statement, and that he agreed to the application’s terms.46 Additionally, Mr. Suttles

and Mr. Cargill, two employees familiar with Respondent’s hiring practices,

testified that they did not find Complainant’s story regarding Mr. Underwood’s

instructions plausible. Mr. Suttles testified that as a hiring manager, he has sat in

on hiring sessions and “could not imagine hearing a hiring manager say to check the

‘no’ box” especially after they knew the circumstances surrounding Complainant’s

criminal conviction.47 Similarly, Mr. Cargill testified, “HR would want to know

about a criminal conviction for a violent incident during the hiring process.

Respondent does not tolerate workplace violence and it is taken very seriously.”48

Second, Respondent’s PEPA policy states that a second serious violation

committed within the applicable review period may result in dismissal.49 The ALJ

found that Respondent administered the discipline that followed the 2010 seat belt

and 2011 locomotive incidents in accordance with its policies and procedures and

the CBA.50 As such, the ALJ also correctly noted that Complainant’s two serious

violations within the applicable review period, taken in combination with the

Id.

Menendez v. Halliburton, Inc., ARB No. 2012-0026, ALJ No. 2007-SOX-00045, slip

op. at 13 (ARB Mar. 15, 2013).

RX 27.

D. & O. at 27; TR at 643-644.

D. & O. at 22; TR at 521-523.

D. & O. at 90; RX 117-4.

D & O. at 90.

application dishonesty, was highly probative to the decision to terminate his

employment.51

Third, the decision to terminate Complainant’s employment with Respondent

was made by multiple individuals both inside and outside Complainant’s

supervisory chain, the mechanical department, and the Kansas City area.52

Fourth, Complainant’s protected activity occurred two years before

Respondent’s termination decision.53 The Board has held that the probative value of

temporal proximity decreases as the time gap between protected activity and

adverse action lengthens, particularly when other precipitating events have

occurred closer to the time of the unfavorable action.54 In this case, Complainant’s

supervisors had the opportunity to terminate his employment because of protected

activity after the 2010 and 2011 incidents, yet exercised leniency. As the ALJ found,

this leniency weighs against a finding that Complainant’s alleged protected activity

beginning in late 2009 was contributing factor in Respondent’s decision to terminate

his employment in 2012.55

Accordingly, we agree with the ALJ’s conclusion that Complainant failed to

meet his burden to show that his alleged protected activity was a contributing factor

to the decision to terminate his employment. We AFFIRM the ALJ’s D. & O. and

DISMISS the complaint.

SO ORDERED.

Id.; TR at 521.

D. & O. at 90.

Id.

Henrich v. Ecolab, Inc., ARB No. 2005-0030, ALJ No. 2004-SOX-00051, slip op. at 18

(ARB June 29, 2006).

Even if we conclude that the FELA lawsuit constitutes protected activity throughout

the time in question, we would affirm the ALJ’s finding of no contributing factor causation

because of Respondent’s discovery of Complainant’s criminal history and dishonesty on his

employment application and termination shortly thereafter.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.