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:

TIMOTHY L. STEARNS,

COMPLAINANT,

v.

ARB CASE NO. 2017-0001

ALJ CASE NO. 2016-FRS-00024

DATE:

April 5, 2019

UNION PACIFIC RAILWAY

COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Timothy L. Stearns; pro se; North Platte, Nebraska

For the Respondent:

Torry N. Garland, Esq.; Union Pacific Railway Company;

Denver, Colorado

Before: William T. Barto, Chief Administrative Appeals Judge; James

A. Haynes and Daniel T. Gresh, Administrative Appeals Judges

FINAL DECISION AND ORDER

J. HAYNES, Administrative Appeals Judge. Timothy Stearns

complained that the Respondent, his employer, Union Pacific Railway

Company , fired him in violation of the whistleblower protections of the

Federal Railroad Safety Act of 1982 (FRSA) and its implementing

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regulations1 because he expressed concerns about railroad safety. Prior to a

hearing, an Administrative Law Judge (ALJ) granted Respondent’s motion

for summary decision and dismissed Stearns’ complaint. Stearns appealed to

the Administrative Review Board (ARB). We affirm.

BACKGROUND

The following facts are generally undisputed.2 Timothy Stearns was a

yardmaster at the North Platte, Nebraska locomotive service facility. On

March 3, 2014, he left work and turned over his duties to an employee not

fully qualified as a yardmaster. Stearns was disciplined and later signed a

letter of leniency which returned him to service on an eighteen month

probation period. The letter stated that Stearns could be fired if he again

violated Rule 1.6 of the Respondent’s General Code of Operating Rules

(GCOR).

On July 27, 2014, Stearns requested information from a co-worker

who replied that he was busy and didn’t have the information. Stearns

became irate and belittled him for not doing his job.3 Supervisor Greg Mellon

overheard the raised voices and attempted to calm Stearns but he continued

yelling that the co-worker was not providing him the information he needed

to keep the trains moving.

After the initial altercation, Mellon called Stearns into his office and

counseled him about acting in a professional manner. Later at dinner,

Stearns described the incident to another yardmaster. Stearns then stood up

and threw a steak knife against the wall, remarking, “I’ll tell you what I

would have liked to have done, I would of liked to do this towards him.” The

witness prepared a written statement of what he saw and heard and gave it

to Mellon.4

1

49 U.S.C. § 20109 (2008), as implemented at 29 C.F.R. Part 1982 (2018).

The references in this paragraph are to the ALJ’s Order Granting

Respondent’s Motion for Summary Decision (Order) at 2-3.

2

3

Respondent’s Exhibit (RX) A.

4

RX C and D.

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On July 28, 2014, Stearns was removed from service. An investigatory

hearing took place on May 27, 2015, and the Respondent fired Stearns on

June 5, 2015, for violating Rule 1.65 and Respondent’s workplace violence

policy.6

Stearns filed a complaint with the Occupational Safety and Health

Administration (OSHA) on July 22, 2015. On January 12, 2016, OSHA

dismissed the complaint and Stearns timely requested a hearing before an

ALJ.7 Prior to the hearing, the Respondent filed a motion for summary

decision, and Stearns filed an opposition. The ALJ granted Respondent’s

motion on September 22, 2016, and dismissed Stearns’s complaint. Stearns

has appealed to the ARB.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to decide this appeal

to the Administrative Review Board.8 The ARB reviews an ALJ’s decision

granting summary decision using a de novo standard.9

Summary decision is appropriate if the pleadings, affidavits, and other

evidence show that there is no genuine issue as to any material fact and that

Rule 1.6 of the GCOR reads as follows: Employees must not be careless of the

safety of themselves or others, negligent, insubordinate, dishonest, immoral,

quarrelsome, or discourteous. Any act of hostility, misconduct, or willful disregard or

negligence affecting the interest of the company or its employees is cause for

dismissal and must be reported. Indifference to duty or to the performance of duty

will not be tolerated. Complainant’s Exhibit (CX) 1; see Order at 3 n.8.

5

6

RX A.

7

CX 11.

See Secretary’s Order No. 02-2012 (Delegation of Authority and Assignment

of Responsibility to the Administrative Review Board), 77 Fed. Reg. 69,378-69,380

(Nov. 16, 2012).

8

Mehan v. Delta Air Lines, ARB No. 03-070, ALJ No. 2003-AIR-004, slip op. at

2 (ARB Feb. 24, 2005).

9

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the moving party is entitled to prevail as a matter of law.10 In reviewing such

a motion, the evidence before the ALJ is viewed in the light most favorable to

the non-moving party; the Board may not weigh the evidence or determine

the truth of the matter; our only task is to determine whether there is a

genuine conflict as to any material fact for hearing.11

DISCUSSION

The FRSA prohibits a railroad carrier engaged in interstate commerce

or its officers or employees from discharging, demoting, suspending,

reprimanding, or in any other way retaliating against an employee because

the employee engages in any of the protected activities identified under 49

U.S.C. § 20109(a). Protected activities include providing information

regarding any conduct which the employee reasonably believes constitutes a

violation of any federal law, rule, or regulation relating to railroad safety or

security.12

To prevail under the FRSA, a complainant must establish three points

by a preponderance of the evidence. They are that: (1) he engaged in

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.13 If a complainant meets this 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 absent the complainant’s protected activity.14

29 C.F.R. § 18.72(a) (2018); Franchini v. Argonne Nat’l Lab., ARB No. 13-081,

ALJ No. 2009-ERA-014, slip op. at 6 (ARB Sept. 28, 2015) (citations omitted).

10

Franchini, ARB No. 13-081, slip op. at 6; Henderson v. Wheeling & Lake Erie

Ry., ARB No. 11-013, ALJ No. 2010-FRS-012, slip op. at 9 (ARB Oct. 26, 2012).

11

12

49 U.S.C.§ 20109(a)(1) and (b)(1)(A).

Riley v. Canadian Pac. R.R. Corp., ARB Nos. 16-010, -052, ALJ No. 2014FRS-044, slip op. at 4 (ARB Jul. 6, 2018).

13

49 U.S.C. § 20109(d)(2)(A)(i); see Speegle v. Stone & Webster Constr. Inc., ARB

No. 13-074, ALJ No. 2005-ERA-006, slip op. at 12 (ARB Apr. 25, 2014) (discussing

three factors to be considered in assessing clear and convincing evidence).

14

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The issue on appeal is whether the pleadings, affidavits, and other

evidence show that there is a genuine issue as to a material fact, namely,

whether any protected activity contributed to Stearns’s discharge. After

reviewing the evidence presented in the light most favorable to Stearns, we

agree with the ALJ’s conclusion on this issue. In this case, the ALJ properly

granted the Respondent’s motion for summary decision because Stearns has

proffered no evidence that any alleged protected activity contributed to his

discharge.

As noted above, Stearns had signed a disciplinary letter for violating

Rule 1.6 of the GCOR fewer than five months prior to the July incident.15 The

letter stated that if Stearns violated Rule 1.6 during an eighteen month

probation, he would be “removed from service without a formal

investigation.” The June 5, 2015 dismissal letter stated that Respondent fired

Stearns because of his verbal attack on his co-worker, and his subsequent

hostile statements and the knife-throwing incident. The ALJ found no

material fact in dispute because Stearns admitted to making the threatening

comments and throwing a knife; he also stated that he felt badly about his

behavior, and wished he could take it back.

On appeal, Stearns asks the ARB to apply its decision in Fordham v.

Fannie Mae that in determining contributory causation the ALJ must not

weigh the employer’s evidence in support of its affirmative defense.16

However, we subsequently reconsidered the rule announced in Fordham and

affirmed the ALJ’s duty to weigh all relevant evidence when determining the

elements of a FRSA complaint. 17

15

CX 4.

16

ARB No. 12-061, ALJ No. 2010-SOX-051 (ARB Oct. 9, 2014).

Powers v. Union Pac. R.R. Co., ARB No. 13-034, ALJ No. 2010-FRS-030, at 9,

(ARB Jan. 6, 2017), aff’d, Powers v. U.S. Dep’t of Labor, No. 17-70676, 723 Fed.

Appx. 522, 2018 IER Cases 180,768 (9th Cir, May 22, 2018)(unpub.), citing Palmer v.

Canadian Nat 'l Ry., ARB No. 16-035, ALJ No. 2014-FRS-154, at 16, 37 (ARB Sept.

30, 2016; reissued Jan. 4. 2017).

17

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Stearns also argues that as yardmaster he was responsible for the safe

and efficient operation of train movement. However, Stearns has produced no

evidence that a delay in moving a particular train would have endangered

safety in the terminal operations or cause any hazardous condition.

Finally, Stearns argues that he was engaging in protected activity just

by being an employee under the FRSA and by moving interstate commerce

through the terminal. The FRSA, however, still requires an employee to

prove the specific elements of a complaint. Here, Stearns has offered no

evidence that could prove that he engaged in protected activity or that the

activity he did claim contributed to his discharge. The ALJ properly granted

the Respondent’s motion for summary decision.

CONCLUSION

The Respondent is entitled to summary decision as a matter of law.

Accordingly, we AFFIRM the ALJ’s Order Granting Respondent’s Motion for

Summary Decision and DENY Stearns’s complaint.

SO ORDERED.

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