# U.S. Department of Labor

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A9cf2f86f34957793

## 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:
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( 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. 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A9cf2f86f34957793. Public record. Not legal advice.