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:

ARB CASE NO. 2018-0020

CORBY ACOSTA,

COMPLAINANT,

v.

ALJ CASE NO. 2016-FRS-00082

DATE:

JAN 2 2 2020

UNION PACIFIC RAILROAD

COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Bristol Baxley, Esq.; Rome, Arata & Baxley, LLC; Pearland, Texas

For the Respondent:

Ryan D. Wilkins, Esq., and Fred S. Wilson, Esq.; Union Pacific

Railroad Company; Houston, Texas

Before: Thomas H. Burrell, Acting Chief Administrative Appeals Judge and

,James.-\. Haynes and Heather C. Leslie, Administrative Appeals Judges

DECISION AND ORDER OF REJ'dAI\'D

Corby Acosta, ,Jr,, filed a complaint under the whistleblower protection

provisions of the Federa 1 Rnil Safory A.ct (FRSA)' aller;:ing that the Union Pacific

Railroad Company (Union Pacific) fin,d him for reporting Hafety concerns. After a

hearing, an Administrative Law Judge (.\LJ) coneludcd that Union Pacific violated

the FRSA and awarded back pay. Union Parific nppealed the AL.J's decision to the

Administrative Heview Hoard (ARB or Iloard). For the following reasons, the Hoard

remands th(< ALJ's decision back to the ALJ for further proce«dings.

49 U.S.C. § 20109 (21l08), aB implemented by federal rc~ulati<Jn~ at 29 C.F.R PaYt

1982 (~017) and 29 C.F.R. Pa,-t 18, Subpart A(2017}.

2

BACKGROUND

The facts are taken from the ALJ's summary of the rividonce and are not

generally contested. Acosta was certified as a conductor but performed variouH work

functions as a brakeman, awikhrnan, foreman, and footboard yardmaster in the

Westwego service yard at t.hc Avondale:,, Louisiana, terminal. His immediate

supervisor was Jimmy Cougett and the director of terminal operations was Tobe

Allen.

On May 8, 2015, Acosta called Union Pacific's safety hotline to report

overgrown grass and weeds in a right of way. which harbored snakes and crnated a

hazardous condition around the tracks in the yard. Acosta was a union secretary

and had previously made more than 150 calls to the hotline to report his and other

employees' safoty concerns. D. & 0. at 11.

On May 13, 2015, Acosta was working as a footboard yardmaster with two

other crewmombers ("first" and "second" crewmembors). On this day, the following

two incidents took place:

1. May 13, 2015 single-car securement incident

The first incident involved the crew·s failure to properly secure a car attached

to two locomotives. The second crewmember pulled the pin after a shove movement

to detach the car from the locomotive. D. & 0. at 9, 16. A shove movement is the

pushing or aligning of a rail car or series of cars into place. The second crewmember

performed a securement. test~ but did not wait a minute to verif'y that the cars were

holding after pulling the pin. D. & 0. at 16. There was no movement, accidents, or

damage resulting from the second crewmembcr's action. However, Allen identified it

as an error in procedure. Allen also took issue with Acosta's failure to supervise tho

crew as the footboard yardmaster. D. & 0. at 9.

2. May 13, 2015 sideswipe collision

Shortly after the single-car incident, the crewmembcrs were involved in

another incident resulting in a collision. The crew's job was to move a cut of twentytwo rail cars into the Kinder Morg,:in plant to be unloaded. One crewmember was

driving the two locomotives that wore pushing the cars along track 55, Acosta was

at the head of the line of cars acting as "point protector," and a second crewmember

was the switchman. D. & 0. at 6. A point-proted.or is on the leading edge of the

movement, either in the leading car or walking alongside tho cars. The point•

'

Securement tests H.icntify the integrity of tho brake hold. D. & 0. at 13. lftho ears

hegin to roll during the test. then another hand brake is needed.

protector has a vantage spot to observe the shoving movement. The engineer in the

locomotive, however_ cannot identify shoving movement because of the obstacles in

front of him. D. & 0. at 6. For this reason. the point•protector is in charge of the

movement.

The crew initially moved the cnrs onto the Kinder Morgan track. After the

first movement, but before the shove movement, the second crewmember

purportedly set two hm1d brakes. The engineer began the shove movement. Acosta

rode the shove in the leading car to the gntc and exited the train. D. & 0. at

21.After the shove movement and after Acosta had exited the train, the second

crewmember pulled the pin to disconnect a locomotive from the line of cnn.

However, the second crewmember foiled to perform a second ,;ecurement test to

ensure that the cars were stable. D. & 0. at 7, 16. The cars began rolling hack down

the track nnd sidesv.iped one of the locomotives.

3. Union Pacific's investigation and discharge of Acosta

Terminal director Allen investigated the incident and took personal

stntements from the crew. The crew was tested for drug use c1nd Allen pulled video

of the crew's work that day. A.lien issued all three crewmembcrs notices of

investigation which charged them with carelessness and failing to secure equipm<.Jnt

properly. The failure to properly secure the cars in the ~ingle•car incident in

conjunction with the sideswipe incident established a pattern of neglect. D. & 0. at

28. Allen looked at Acosta's disciplinary history and pulled him out of service

pending an investigation because he already had a level 4 charge on his record. 0. &

0. at 10-11.

At Union Pacific's investigation hearing on June 9, 2015, the second

crewmember took full responsibility for the !\-lay 13 events, stating t.hat. he had not

waited to ensure securement during the single car incident and later, in the twentytwo car collision. had set the two hand brakes on the lead tanker car but not tightly

enough, which caused the cars to roll and ~ideswipc the locomotive. He added that

Arosta was "being punished" for his actions, but that Acosta was not involved with

securing the cars. Respondent's Exhibit (RX) ,J at 206-07. Acosta also denied

wrongdoing at the henring. The first crewmcmber admitted that he shared in the

fault for the incident and accoptod the level 4 discipline. The second crewmember

was charged wilh a level 5 violation and fired. D. & 0. at 14, Hi.

On ,Junc 19, 2015, Union Pacific di~missed Acosta for switching and

sccurement rules v10lations. resulting in uncontrolled movement of railroad cars.

Complainm1t's Exhibit (CX) 5. Superintendent ,Jamal Chappell reviewed the

transcript of the June 9 inv.,stigation hearing and concluded that the evidence

"more than substnntially supports the charges: "On 05•13·2015, at approximately

15:30 while employed as a Footboard Yardmaster, you failed to ptoperly secure

4

equipment, resulting in uncontrolled movement colliding with own engine and

allegedly failed to secure equipment." He noted that under Union Pacific's Upgrade

ProgreAfJive Discipline Table, the violation was a level 4C which, coupled with

Acosta's current level 4 status, amounted to a level 5 violation. Under Union

Pacific's policy, that resulted in permanent dismissal effective immediately.

Acosta filed a timely complaint with DO L's Occupational Safety and Health

Administration (OSHA) on December 16, 2015, alleging that Union Pacific fired him

in retaliation for reporting safety concerns. After an mvestigation, OSHA

determined on August 11, 2016, that Union Pacific had not v10lated the FRSA

Acosta objected and timely requested a hearing, which was held in Covington,

Louisiana on January 18, 2017. The ALI concluded that Union Pacific had violated

the FRSA and awarded Acosta $156,100.00 in back pay and oxpungomont of his

termination record.a

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the Administrative Review

Board to act for the Secretary in review ofan appeal of an ALJ's decision pursuant

to the FRSA. Secretary's Order No. 01-2019 (Delegation of Authority and

Assignment of Responsibility to the Administrative Review Board), 84 Fed. Reg.

13072 (Apr. 3, 2019); 29 C.F.R. § 1982.110. We review the AL.J's factual findings to

detnrmine whether they are supported by substantial evidence. 29 C ..F.R. §

1982.110. The ARB reviews the AL.J's conclusions of law de novo. Kruse v. Norfolk

S. Ry. Co., ARB Nos. 12-081, -106, ALJ No. 2011-FRS-022, slip op. at 3 (ARB Jan.

28, 2014). We gonnraily defer to an ALJ's credibility findings unless they are

"inherently incredible or patently unreasonable." Mizusawa v. United Parcel Serv.,

ARB No. 11-009, ALJ No. 2010-AIR-Ol 1, slip op. at :l (ARB June 15, 2012).

DISCUSSION

Under the FRSA, a 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; (3) and the protncted activity was a

contributing factor in the unfavorable personnel action. If a complainant meets his

burden of proof, the employer may avoid liability only if it prove8 by dear and

convincing eV1dence that it would have taken the same unfavorable personnel

action in the absence of the complainant's protected activity. 49 U.S.C. §

20109(d)(2)(A)(i); 49 U.S.C. § 42121(b)(2)(B)(i)(200U); Thorstenson v. BNSP Ry. Co.,

ARB No. 18•059, -060, ALI No. 201.5-FRS,052 (ARB Nov. 25, 2019).

'

The Public Law lloard reinstated Acosta as of November 2, 2016. D. & 0. at 20.

Acosta went back to work on February 7, 2017. The ALJ awarded Acosta 635 days of back

pay at $260.00 a day minus the amount he earned at part-time jobs. D. & 0. at 59----tiO.

5

1. Acosta engaged in protected activity and suffered an adverse action

The FRSA prohibits a railroad carrier engaged in interstate commerce or its

officers or employees from discharging, demoting, suspending, reprimanding, or in

any oth<cr WtlY retaliating llgainst an employee because the employee engages in any

of the protected activities identified under 49 U.S.C. § 20109(a). 1 We affirm as

unchallenged on appeal the Al.J's conclusions and findings that Acosta engaged in

protected activity when he complained of the overgrown grass and snakes in the

right of way and suffered an adverse personnel action when he was fired. Union

Pacific does not challenge the ALJ's credibility determinations on appeal.

2. The ALJ erred in his contributing factor analysis

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

protected activity was a "contributing factor" in the adverse employment action. 49

U.S.C. § 20109(d)(2)(A), referring to 49 U .S.C. § 4212l(b)(2)(B)(i). "A 'contributing

factor' includes 'any factor, which alone or in connection with other factors, tends to

affect in any way the outcome of tho decision."' Rookaird v. BNSF Ry. Co., 908 F.3d

451, 461-62 (9th Cir. 2018), quoting Gunderson u. BNSF Ry. Co., 850 F.3d 962,969

'

Those provisions 1.11dude the following:

(1) to provide information, d,rcctly cause information t.o be

provided, or otherwise directly assist in any invest1gat10n

regarding any ~onduct which the employee reasonably believes

constitutes a violation of any l•'cderal law, rule. or regulation

relating to railrOad safety ,,r security, or gross fraud, waste, or

abuse cf l•'ederal grants or other public funds intended to be

used fo1· railroad safety or security, if the informatwn or

assistance is provided to or an investigation stemming from the

provided information is conducted hy(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; .

(CJ a person with supervisory authority over the employee or

such othe1· person who ha~ the authority to investigate,

discove,-, or termmatc the misconduct; ....

(4) to notify, or attempt to notify, the railroad carrier or the

Secretary ofTrmrnporrntion of a work-related personal injury

or work-related illness of an employee;

(6) to cooperate with a safety or security investigation by the

Secretary of Transportation. the Secretary of Homeland

Security, or the :...lational TransportaC10n Safety Board; ..

(7) to accurately report hours on duty pursuant to chapter 211.

49 U.S.C. § 20109(a).

6

(8th Cir. 2017). "[T]he contributing factor that an employee must prove is

intentional retaliation prompted by the employee engaging in protected activity."

Kuduk u. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014). In satisfying this

statutory sbmdard, a complainant need not pmvc a retaliatory motive beyond

showing that the employee's protected activity was a contributing factor in the

adverse action. Araujo v. N.J. Transit Rail Operations, inc., 708 l<'.3d 152. 158 (3d

Cir. 2013). If an employer asserts a legitimate, nondiscriminatory reason for its

actions, a complainant can point to spe(.,ific facts or evidence that, if believed, could

show that the employer's reasons were pretext or show that the protected activity

was also a contributing factor even if the employer's reasons were nonretaliatory.

Conversely, an employer's reasons for imposing an adverse personnel action can be

supported and documented to such a degree that a fact-finder finds no contributing

factor causation.

A. The ALJ's use of "prima facie ca~e" language

Considering the t<cmporal relationship between Acosta's May 8 prot<ccted

activity and Acosta's termination, the ALJ "[found] there may be sufficient

circumstantial evidence to prove, prima facie, that the protected activity was a

contributing factor to the ;id verse action."' D. & 0. at 47. Summarizing the section

on contributing factor, the ALJ wrote, ·'I find there is sufficient circumstantial

evidence to prove, prime facie. that the protected activity was a contributing factor

to the adverse action." D. & 0. at 49.

Despite its commonplace occurrence in the post-hearing opinions of ALJs, a

"prima facie case" is usually associated with an inference and the investigatory

phase of a whistleblower complaint, not proof after hearing. See, e.g., Zinn u. Am.

Commercial Lines, ARB Ko. 10-029, ALJ No. 2009-SOX-025, Hlip op. at 10 (ARB

Mar. 28, 2012) (explaining the different phases of investigation and proof by a

preponderance after an evidentiary hearing); Roffman v. Nextera Energy, i\RB No.

12-062, ALT l\'o. 2010-ERA-011, slip op. at 12 (ARB Dec. 17, 2013) (prima facie

showing irrelevant once case goes to hearing before ALJ). As the Eleventh Circuit

has noted, incorporation of the term ''prim a facie case" into whistleblowor

adjudication has "bred some confusion, chiefly because the phrase evokes tho

sprawling body of general employment discrimination law." Stone & Webster En!{',;

Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997) (citations omitted). At the

ovidentiary stage after hearing, the complainant is required to prove the elements

by a preponderance of the evidence, including proof that protected activity was a

contributing factor in the advcrnP action, 29 C ..F.R. § 1982.109(a), and nut merely

allege circumstances sufficient to establish the four clements, including

circumstances sufficient to raise the inference that the protected activity was a

contributing factor, 29 C.F_R. § 1982.104(e)(2)(iv). Gale v. Ocean Imaging, ARB N'o.

98-143, ALJ No. 1997-ERA-038, slip op. at 9 (ARB July 31, 2002) (''However,

because this ca~o has been fully tried on the mtarits, we move beyond the question of

7

whether Complainant has presented a prima facie case to analysis of the evidence

on the ultimate question of liability.''); Palmer v. Canadian Nat'/ Ry, IL Cent. R.R.

Co., ARB 16-035, AJ.J No. 2014-FRS-154, slip op. at 20 n.87 (ARB Jan. 4, 2017)

(reissued with dissent) (comparing and contrasting the investigation stage with the

burden of proof after hearing); Rookaird, 908 F.3d 461---62 (same).

13. The ALJ found that temporal proximity and knowledge prove a ''prima facie"

case of cau.~ation

The ALJ's use of "prima facic" proof seemingly contnbuted to his findings on

pages 44--49 of his D. & 0., that temporal proximity and knowledge" were sufficient

to prove contributing factor causation.

In reference to the timing of Acosta's termination, the i\LJ found that there

were only fiv<c days b<ctwe<cn Acosta's .\iay 8 protected activity and the May 13

accident resulting in Union Pacific's charge against Acosta. D. & 0. at 45-47. The

termination decision followed shortly thereafter on June 19, 201.5. The ALJ

reasoned that temporal proximity and knowledge "will establish, prima facic,"

contributing factor causation. D. & 0. at 45; see also id. at 47 (temporal proximity is

"sufficient circumstantial evidence to prove, prima facic, that protected activity was

a contributing factor''). The ALJ found that "[g]iven the knowledge of the ultimate

decision mllker as well as the proximity between Claimant's protected activity and

the adverse action, I find there is sufficient circumstantial eVIdence to prove, prima

facie, that the protected activity was a contributing factor to the adverse action." D.

& 0. at 49. The AT..J added that this finding is reinforced when considered in

conjunction with what the ALJ found to be a lack of evidence supporting the

Respondent's reasons, which the ALJ discussed in the suhHequent section.

Union Pacific argued that the ALJ erred in drawing an inference from the

temporal proximity between Acosta's discipline and the May 8 complaint. Union

Pacific noted that prior to that complaint, Acosta had made more than lfiO safety

''

Union Pacific concedes !Jut criticizes the AT~J's finding that 1t had knowledge of

Acosta's May 8 hotline report on ,Tune 19 when it made the decision to terminate Acosla.

Union Pucific Br. at W. Union Pacific argues that as of the May 13 inve~tigation mto the

accident no one involved with &osta's pending discipline knew of his May 8 hotline report.

The ALJ agreed with Union Pacific that Allen had no knowledge of the specific May 8

comph1int on May 1:) when the accident took place and when Allen charged Acosta. D. & 0.

at 42, 47-48. The ALJ further reasoned that Allen's knowledge was not essential as ho was

not tho final decision-maker. The ALJ found that Chappell knew or had constructive

knowledge of Acosta's May 8-complaint on June 19, 2015. because ho reviewed the

tnmscript of the investigatory hearing that took place on June 9 concerning the events that

had occurred on May 1 3, during which time Acosta ref'ened lo his protected complaint. D. &

0. at 47~18.

8

l'omplaints over a seven-year period with nu repercussions. Union Pacific argues,

among other things, that the ALJ's analysis gives no weight to intervening events

and that Allen charged all three crew members with violations (Acosta less severely

than others) before having knowledge of the May 8 safety complaint. For the

following reasons, wr agree with Union Pacific that the ALJ erred in his causation

analysis.

Generally, temporal proximity is associated with an inference to avoid

summary judgment and is not sufficient to prove contributing factor causation by a

preponderance of the evidence. Brune v. Horizon Air Indus., ARB No. 04-0.'17, ALJ

No. 2002.AJR-008, slip op. at 13 (ARB Jan. 31, 2006); Peck u. Safe Air lnt'l, ARB l\'o.

02-028, ALJ No. 2001-AIR-003, slip op. at 9 (ARB Jan. 30, 2004) (temporal

proximity between protected activity and adverse personnel action "normally" will

satisfy the complainant's burden of making a prima (acie showing at the OSHA

investigatory stage),

The mere circumstance that protected activity precedes an adverse personnel

action is not proof of a causal connection between the two. Bermudez u. TRC

Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir. 1998) ("Timing may be an important

clue to causation, but docs not eliminate the need to show causation -- and [the

plaintiff] really has nothing but the post hoc ergo propter hoc 'argument' to stand

on."); Huss v. Gayden, 571 P.ad 442, 459 (5th Cir. 2009) (noting "the post hoc ergo

propter hoc fallacy assumes causality from temporal sequence"); Huskey u. City of

San Jose, 204 P.ad 893, 899 (9th Cir. 2000) (same).

The limited causal value of temporal proximity is especially prominent in a

whistleblower ca~e where most of a complainant's joh may consist of protected

activity. Proof of retaliation for engaging in protected activity under the FRSA

generally roquires more than the mere temporal relationship that an adverse action

followed an instance of protected activity. Temporal proximity may be supported by

other forms of circumstantial evidence establishing the evidentiary link between the

protected act and the adverse action ~uch as mconsistent application of an

employer's policies, pretext, shifting explanations by the employer, or antagonism.

Loos v. BNSFRy. Co., 865 F.::Jd 1106, 1112-13 (8th Cir. 2017), rev'd on other

grounds, 139 S. Ct. 893 (Mar. 4, 2019)).

The insufficiency of temporal proximity as a basis for proving causation is

even more apparent when the fact8 reveal an intervening event occurring between

the protected activity and the adverse personnel action. Feldman v. Law

Enforcement Assoc. Corp., 752 P.3d 339, 348 (4th Cir. 2014); Robinson v. Nw.

Airlines, ARB No. 04,041, ALJ No. 200:1-AIR-022, slip op. at 9 (ARB Nov. 30, 2005)

("where the protected activity and the adverse action arc separated hy an

intervening event that independently could have caused the adverse action, there is

no longer a logical reason to infor a causal relationship between the activity and the

9

adverse action"); Jones u. BNSF Ry. Co., No. 14-2616, 2016 WL 183514, at *7 (T).

Kan. Jan. 14, 2016) (citations omitted) ("While temporal proximity supports this

element, more than a temporal connection is reqmred to present a genuine factual

issue on retaliation. 'This is especially true when the employer was 'concerned llbout

a problem before the employee engaged in the protected activity."'); King u. BP

Prodo. N. Am., Inc., ARB 05-149, ALJ No. 2005-CAA-005, slip op. at 13 (ARB July

22, 2008) (Deyer, J., discaenting) (temporal proximity insufficient for genuine issue of

material fact when there is an intervening event).

C. The ALI erred in failing to evaluate the intervening events occurring on May

J3 by the correct standard

'I'h"' ALJ's problematic use of inforontial, "prove a prima facio caso" language

and conclusiona that temporal proximity and knowledge were sufficient for

contributing factor cHusation are compounded by tho ALJ's errors m handling

Union Pacific's legitimate, nondiscriminatory reasons for terminating Acosta.s As

discussed below, the ALJ erred in substituting his perception of the poor merits of

Union Pacific's employment decision as a means for finding that those reasons were

not honostly held and thus were protoxt for FRSA retaliation.

i.

Whether or not Acosta was actually a point-protector for the entire time on

May 13, was a supervisor, foreman, or was vicariously liable for the acts of

his crew is not the dispositive issue in an FRSA retaliation rlaim

Union Pacific claimed that Acosta was a point-protector and footboard

yardmaster on May 13 and was tasked with preventative and supervisory duties

during a shove incident resulting in a collision in the sideswipe incident and failure

to follow protocol in the single-car securcment incident. Point-protectors serve a

safety role during shove-procedures to prevent collisions or derailment. D. & 0. at 6,

fi0-51. When investigating the May 13 incident, Allen charged Acosta with violating

the rules because he was footboard yardmaster and the entire crew is responsible

for the securement of the equipment. D. & 0. at 9-13, 28--29, 32. Notwithstanding

that one of Acosta's crewmcmbers admitted that he alone failed to secure the cars,

"

The ALJ correctly set out the preponderance of the evidence burden of proof and the

contributmg factor standard in his mtroduction to the section. D. & 0. at 40-44. The ALJ

correctly noted that a complainant need not prove that the employer's reason~ were false to

prevail under the contributmg factor standard. D. & 0. at 44. But the ALJ overextended

that premise when he concluded that an employer's legitimalc. nondiscriminatory reason

"is by itself insufficient to defeat an employee's claim under the contributing factor

analysis." D. & 0. at 44. A fact-finder is permitted to conclude that the employer's

justifications for its action were pr"v,m to such a der:ree that rnntributinr: factor playPd no

part. in the adverse action. That the two motives can coexist under the lighter, contributing.

factor ~tandard does not render the employer's jusltfications inelevant or impotent at the

contributing factor stage Palmer, ARB 16-0:-!5.

10

Union Pacific's posit10n 1s that Acosta was the "footboard yardmaster" and "should

have been watching and admonishing [his crewmemberj for violating the rules." D.

& 0. at 28-29, 51. Union Pacific relied in part on a "pattern" of neglect because the

crew under Acosta foiled to secure the cars correetly during the single-car

securement incident that occurred before the twenty-two car collision. Union l'ac1fic

claimed that it based its termination decision on Acosta's existing level 4 violat10n

status and the events of May 13, which upgraded that status to level 5. id. at 12-13,

28-29, 32-33.

Rejecting Union Pacific's roliancc on this ground, the ALJ countered that

"Allen never testified that A.costa was the point protector during the entirety of the

events which took place on May 13, 2015, Rather, Allen specifically stated that he

'could not say who provided point protection for the initial shove movement,"'

D, & 0, at 51 (emphasis in original), The ALT also took issue with the fact that

Union Pacific did not charge Acosta himself with violating the rules but rather held

him responsible for the actions of his crew, D, & O. at 51. The ALJ emphasized

"[m]oroover. my review of the record roveals Acosta was never found to have

directly violated any rules. Rather, he was held accountable for his crew member's

violations of those rules." D. & 0. at 52. The AL.I rejected Union l'acific's assertion

that Acosta was in a leadership position and was thus responsible for the actions of

his crew. D. & 0. at 52. "I find no testimony, by [crcwmembers] or Acosta, that the

footboard yardmaster position is a leadership or management position. :vly review of

the record reveals that [crewmembers] and Acosta uniformly testified that a

foothoard yardmaster is in charge of the work to be done, but a foot board

yardmaster is nut in charge of or liable for the actions of the crew." D. & 0. at 5253. The ALT examined the specific testimony of crewmemhcrs as to whdher it

supported the assertion that the footboard yardmaster was similar to a foreman or

liable for crew's actions. D. & 0. at 52---54. The AL.I found that Union Pacific's

"reasons for the adverse action" against Acosta wore "not support[ed]" becausi)

Acosta was not liable as footboard yardmaster. D. & O. at 53. "1 do not find

[crewmembers'J testimony establishes that a footboard yardmaster is in charge of

the crew, responsible for, or liable for the actions of the crew." D. & 0. at 54. The

ALJ did not find that Union Pacific had proven that a footboard yardmaster was

equivalent to a foreman. D. & 0. at 55. The A.LJ wrote "[m]oreover, 1 am not

convinced, by the evidence of record, that a footboard yardmaster is responsible for

the actions of the other crew members. Nor do I believe the evidence supports a

finding that that a foothoard yardmaster is vicariously liable for the safety

violations of his crew." D. & 0. at 55. Continuing to vet the merits of vicarious

liability, the ."..LJ found tho following:

Respondent has wholly failed to convince me of the legitimacy of its

rea~ons for its adverse actions against Complainant. Respondent failed

to establish that a footboard yardmaster iH a leadership position.

Respondent also failed to establish that a footboard yardmaster is

11

responsibl<c for or liable for any safety violations of his crew members regardless of whether he witnesses such violations.

D. & 0. at 56. Accordingly, the ALJ found that Uruon l'acific"s reasons for

disciplining Acosta because of his snfety violations on May 13 were "illegitimate or

pretextual." D. & 0. at fiO.

The ALJ erred in the above analysis by focusing on his perceptions of the

merits of Union Pacific's justifications for terminating Acosta. The question is not

whether Acosta violated Union Pacific's rules, whether he actually was or was not

point protcetor for the entire time, or whether Union Pacific proved that he was not

actually in charge of the toam's work as opposed to being a leader of the team. Jones

u. U.S. Enrichment Corp., ARB Kos 02-093, 03-010, ALJ Nu. 2001.ERA.021 (ARB

Apr.30.2004) ("'It is nut enough ... to disbelieve the employer: the factfinder must

believe the phi.intiffs explanation of intentional discrimination.") (case citationa

omitted). The ARB has stated on many occasions that the ALJ should not sit as a

super.personnel advocate when viewing the employer's decisions for an adverse

action. Clem l'. Computer Sciences Corp., ARB No. 16·096, ALJ Nos 201fi.ERA-003,.

004 (ARB Sept. 17, 2019); Gale u. Ocean Imaging. /\RB No. 98·143, AL.J Ko. 1997•

ERA.038, slip op. at 13 (ARB July 31, 2002) ("Moreover, the thrust of Complainant's

argument is that it was wrong, unfair. or unjust for Respondent'> not to weigh the

grounds that they cited against Complainant's past performance and find in favor of

retaining her, and that therefore Respondenti rationale was pretext. However, "[I]t

is not enough for the plaintiff to show that a reason given for a job action is not just,

or fair, or sensible ... [rather] he must show that the explanation is a 'phony

reason."' citing Kahn u. U.S. Sec'y of Labor, 64 F.3d 271, 278 (7th Cir. 1995)). The

FRSA is not a wrongful termination statute. An employer's actions can be harsh,

faulty, and unjustified, but this does not establish that the employer retaliated for

FRSA whistleblowing activity. 7

Rather, the issue to be decided by the ALJ when evaluating the employer'ci

reasons for its action is first wheth<.Jr Union Pacific genuinely or honestly believed

that Acosta was rnsponsible in whole or in part for the pattern of safety violations or

Swenson v. Schwan ".s Consumer Brands N. Am., Tnc .. 500 }led. Appx ..~4:-J, 846 (5th

Cir. 2012) ('"Admittedly, the parties dispute whether and to what extent Swenson violalcd

Schwan's vacation policy. Swenson !ffgues that demonstrating that Schwan's was factually

incorrect in its determinatiun that Swenson violated company policy is sufficiont tu

establish pretext. However, pretext is not established merely because the company was

mistaken in its belief. if huncstly held. \Vhether Schwan's conclusion was correct is

irrelevant; if Schwan's belief that Swenson violated company policy motivated its discharge

decision, thon it was not a pretext. and Swenson cannot meet his cvidentiary burden."):

Cullins u. Am. Red Cross, 715 F.3d 994, 999 (7th Cir. 2013) (the FRSA "does not forbid

sloppy, mistaken, or unfair terminations; it forbids discriminatory or retaliat.ory

terminations').

12

the twenty-two car collision. And if so, whether that belief and not protected activity

accounted for its disciplinary actions. Clem, ARB No. 16-096: Stone & Webster,

Constr., Inc. u. U.S. Dept. of Labor, 684 F.3d 1127, 1136 (11th Cir. 2012).

We do not say that the bolievability of the employer's reasons is not relevant

to a whistleblower retaliation claim. If the employer's reasons were so unbelievable

as to be unworthy of credence, this would be evidence in favor of Acosta, either at

the contributing factor stage or preventing the employer from establishing its

affirmative defense. The ALJ had traditional grounds for establishing pretext for

FRSA retaliation such as disparate treatment with similarly situated comparators,

a history of retaliation against persons who engage in protected activity, and so on.

However, this is not the analysis that the ALJ performed.

D. The ALJ's errors require remand to weigh the evidence by the preponderance

of the euidence

To prove a fact by a preponderance of the eVIdence "means to show that that

fact is more likely than not; and to determine whether a party has proven a fact by

a preponderance necessarily means to consider all the relevant, admissible evidence

and, on that basis, determine whether the party with the burden has proven that

the fact is more likely than not." Palmer. ARB 16-035, slip op at 18. As we have

stated before, the employer's reasons for it~ actions are relevant at both the

contributing factor stage, when applying the "preponderance of the evidence"

standard, and at the affirmative defense stage, when analyzing the employer's

burden by the "clear and convincing evidence" standard.

&viewing the AL,J's opinion as a whole it is difficult to separate out the

ALJ's use of inference standard8 (prim a facie) from those showing a weighmg by the

preponderance of the evidence, especially in light of the weight that the ALJ gave to

temporal proximity and knowledge---adorncd in inference language. D. & 0. at 47.

49. Our conclusion is corroborated by the fact that the ALJ appeared to

compartmentalize the employer's reasons for its actions in a separate section on

legitimate, nondiscriminatory reasons after concluding that temporal proximity and

knowledge established "prima facie" that proteeted activity contributed to Acosta's

termination. Even if the ALJ did weigh thP. evidence by a preponderance of the

evidence in making his contributing factor findings (D. & 0. at 56), he did not

correctly weigh the employer's evidence by tho correct standard and this roquir~s

remand.

3. The ALJ erred in his clear and convincing analysis

In evaluating the employer•~ same-action defense, the fact-finder must asaeas

whGther the respondent has domonstn1t<cd by clear and convincing evidence that it

would have taken the action even if tho employee had not engaged in protected

13

activity. We have said that the employer satisfies this burden when it shows that it

is "highly probable" that it would have taken the action in tho absence of protected

activity. Palmer, ARB 16-035, slip op. at 52. As we said in Clem, ARB No. 16-096, a

fact-finder must holisticnlly consider any and all relevant, admissible evidence

when determining whether an employer would have taken the same adverse action

against an employee in the absence of any protected activity.

The above-cited errors in the ALJ's causation analysis, carried over to the

ALJ's analysis of Union Pacific's affirmative defense as the ALJ again relied upon

his perception of the merits of Union Pacific'H justificc1tions and not Union Pacific's

honestly held basis for the June 19 termination following investigation of the May

13 events. 'I'he AW found that he was ''unconvinced by the legitimacy of

Respondent's reasons" for the adverse action. D. & 0. at 58. The ALJ wrote as

follows:

For the same reasons I am unconvinced by the legitimacy of

Rcrnpondent's reasons for its adverse action, J am similarly

unconvinced that Rebpondent would have taken the same action

absent Complainant's protected activity. Simply put, I am wholly

unconvinced by Respondent's reasons for its adverse actions against

Complainant.

I believe - as Respondent asserts - Complainant would have been

upgraded to a ·'level 5" and thus subject to tho possibility of

termination ifhe violated safety rule.>. However, as discussed above,

Respondent was unable to convince me of the legitimacy of its roasons

for chargrng Complainant with the safety rule v10lations and the

ultimate adverse action taken against Complainant. Respondent failed

t.o establish sufficient evidence of the actual responsibilities and duties

of one of its own employee positions. As such, the undersigned found

the validity of Respondent's reasons for the adverse action taken

against Complainant tn be questionable. In this particular case,

without convincing me of its reasons for the adverse action,

Respondent cannot convince me that it would have taken the same

action absent Complainant's protected activity. Accordingly, I find

Complainant has established that his protected aclivity wns a

contributing factor to the adverse action and Respondent failed to

establish that it would have taken adverse action absent

Complainant's protected activity.

D. & 0. at 58 (emphasis in original). The ALJ committed error by shifting the issue

to be decided from retaliation for FRSA protected activity to the accuracy or merits

of Urno11 l'ac1fic's termination decision.

14

CONCLUSIOK

Tho ALJ erred in his contributing fador and same-action defense analyses.

We REMAND for proceedings consistent with this opinion.

SO ORDERED.