Administrative Review Board

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200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

EDWARD MOSS,

COMPLAINANT,

ARB CASE NO.

2020-0046

ALJ CASE NO.

2018-FRS-00001

DATE: July 20, 2021

CSX TRANSPORTATION, INC.,

RESPONDENT.

Appearances:

For the Complainant:

Edward Moss; pro se; Stanley, North Carolina

For the Respondent:

Thomas R. Chiavetta, Esq..; Jones Day; Washington, District of

Columbia

Before: James D. McGinley, Chief Administrative Appeals Judge; Thomas

H. Burrell and Stephen M. Godek, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. Edward Moss (Complainant), who worked as an engineer for

CSX Transportation, Inc. (Respondent), filed a complaint with the Occupational

Safety and Health Administration (OSHA), alleging that Respondent had violated

the whistleblower protection provisions of the Federal Railroad Safety Act1 (FRSA)

by failing to allow him to end his duties or offer him support services after a critical

49 U.S.C. § 20109, as implemented at 29 C.F.R. Part 1982 and 29 C.F.R.

Part 18, Subpart A.

incident. After an investigation, OSHA determined that Complainant failed to make

a prima facie allegation of an FRSA violation and dismissed the claim. Complainant

requested a hearing with an ALJ. After a hearing, the ALJ issued a Decision and

Order denying the claim. Complainant appealed the ALJ’s decision to the

Administrative Review Board (Board).

BACKGROUND

Complainant worked as a locomotive engineer for Respondent out of its

Buffalo, New York yard.2 Complainant operated trains between Buffalo and

Syracuse, New York.3 On March 10, 2017, Complainant was operating a train going

from Buffalo to Syracuse when a person walked in front of the train, at which time

Complainant applied the train’s emergency brakes.4 The other crew member,

Conductor Dave Wesolowski, notified the dispatcher and the road foreman, Mike

Lewandowski, of the fatality.5 Lewandowski notified them that he would come to

the site of the incident.6 When he arrived, Lewandowski informed them that a

“recrew” was not available to replace them at the time.7 Complainant responded,

“This is wrong of the company to be doing this to us, we need to be taken off this

train per policies and procedures.”8 Lewandowski testified that neither crewmember

mentioned that they needed medical attention or appeared to be injured.9

Lauren Lamp, a field investigative specialist for Respondent, reported to the

scene and introduced herself to the crew.10 She asked them if they were okay, to

which Wesolowski said “yes” and Complainant “bobb[ed] his head, kind of nodding

Decision and Order (D. & O.) at 4.

Id.

Id. at 3-4.

Id. at 2.

Id.

Lewandowski testified that a nearby train was blown over eighteen hours

before, which caused crew shortages. Id. at 8.

Id. at 2.

Id. at 8.

Id. at 9.

like.”11 Lamp testified that the crewmembers did not appear to be injured and that

Complainant acted similarly to other employees who had been involved in similar

incidents.12 She also testified she was familiar with the company’s policy that

prohibits interfering with medical aid and that Complainant never requested

medical attention.13

Lewandowski informed the crewmembers that they would have to drive the

train to the Syracuse yard, where a company cab would transport them back to

Buffalo.14 Lewandowski operated the train until its arrival in Syracuse. 15 A cab

then took Complainant and Wesolowski back to the Buffalo yard.16 After arriving,

they informed the trainmaster’s office that they had returned and provided their

names and company ID numbers.17 Respondent did not provide any debriefing,

counseling, or support services to Complainant that day.18 Complainant did not go

to the hospital during the weekend after the incident.19

Respondent’s employee assistance program20 reached out to Complainant

twice in the days following the incident, but Complainant did not return their

calls.21 Complainant began seeing a therapist shortly after the incident.22

Complainant suffered from a misaligned jaw and cracked tooth from the incident,

which Complainant was not aware of until after March 10, 2017.23 Complainant

testified that the injuries were not visible either. On March 16, 2017, Respondent’s

Chief Medical Officer issued a letter to Complainant informing him that he was

Id.

Id. at 10.

Id.

Id. at 2.

Id.

Id. at 6.

The employee assistance program provides a 24/7 hotline for counseling. Id.

Id.

Id. at 16.

Id. at 6.

medically unqualified for all service.24 Complainant has received regular medical

treatment and therapy and has not returned to work since the incident.25

On June 6, 2017, Complainant filed a complaint with OSHA, alleging that

Respondent violated the FRSA.26 Without alleging a violation of a specific provision

of the FRSA, Complainant alleged that Respondent did not comply with the

company’s critical incident stress plan as mandated by the Federal Railroad

Administration (FRA)27 and that Respondent either unlawfully prevented him from

ending his shift or failed to offer support services after the incident.28 On August 30,

2017, OSHA notified Complainant that it had completed its investigation. OSHA

concluded that Complainant had not suffered a materially adverse action by

Respondent, and, therefore, there was no prima facie allegation of an FRSA

violation.29 Complainant subsequently filed objections to the OSHA findings and

requested a hearing with an ALJ.30

The ALJ held a hearing on August 29, 2019, and issued a decision on May 29,

2020.31 The ALJ noted that the Board had described a railroad carrier’s duties

regarding the medical treatment of its employees under the FRSA. The ALJ found a

carrier must “take the employee to the nearest hospital after a work injury if such a

request is made” and “stay out of the way of the medical providers” who are treating

an employee injured during the course of employment.32

The ALJ found the record did not contain any evidence establishing that

Complainant made a request for medical treatment after the incident on March 10,

Id. at 3.

Id. at 3, 5-6.

Id. at 2.

In a separate investigation, the FRA found that Respondent violated U.S.

Department of Transportation regulations (49 C.F.R. §§ 272.5, 272.101) by failing to

follow critical incident stress plan requirements. Complainant’s Exhibit U.

D. & O. at 2.

Id.

Id. at 3.

Id.

Id. at 12.

2017.33 In response to Lewandowski informing him that no recrews were available,

Complainant testified that he replied that “[w]e need to be taken off this train per

policy and procedures,” which Complainant argued was the equivalent of asking for

medical treatment.34 The ALJ noted Complainant never told anyone that he was

injured, requested an ambulance, or explained why he believed that he should be

taken off the train.35 Complainant admitted that his physical injuries were not

visible on the day of the incident and that he did not discover them until days

later.36 The ALJ therefore concluded that Respondent’s employees could not have

interfered with Complainant’s medical treatment because they were unaware of his

alleged injuries.37

The ALJ further noted Lewandowski testified that both crewmembers were

quiet and did not appear injured when he arrived to the scene.38 Lewandowski also

testified that Complainant did not ask for medical attention, a therapist or

counselor, or that he specifically be allowed to get off the train.39 When Lamp met

the crewmembers, both answered affirmatively to her question if they were okay.40

The ALJ therefore found that Complainant did not make a request for medical

treatment or transportation to medical treatment on the day of the incident.41 The

ALJ concluded that Lewandowski and Lamp would not reasonably have known that

Complainant needed immediate medical treatment at the time or that he needed

transportation to a hospital.42

The ALJ rejected Complainant’s assertion he told Lewandowski that he

needed to be taken off the train per company policy and that this was the equivalent

Id.

Id. at 13.

Id.

Id. at 14.

Id.

Id. at 15.

Id.

of asking for medical attention.43 The ALJ noted that his jurisdiction was limited to

whether Respondent had violated the FRSA’s whistleblower provisions of the Act.

The ALJ also noted that he would not comment on matters not currently before

him, such as whether Respondent had appropriate policies in place to respond to

these types of critical incidents or whether those policies were not covered by the

FRSA.44

The ALJ concluded (1) that Complainant did not show by a preponderance of

the evidence that he engaged in protected activity and (2) that Respondent did not

violate the FRSA whistleblower protection statute.45 The ALJ therefore denied

Complainant’s claim for relief under the FRSA.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the Administrative Review

Board to review appeals of ALJ’s decisions pursuant to the FRSA.46 The ARB will

affirm the ALJ’s factual findings if supported by substantial evidence but reviews

all conclusions of law de novo.47 Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”48

DISCUSSION

Subsection (c) of the FRSA whistleblower statute provides that a railroad

carrier “may not deny, delay, or interfere with the medical or first aid treatment of

an employee who is injured during the course of employment” and that “[i]f

Id.

Id. at 16-17.

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).

Austin v. BNSF Ry. Co., ARB No. 2017-0024, ALJ No. 2016-FRS-00013,

slip op. at 7 (ARB Mar. 11, 2019).

McCarty v. Union Pacific R.R. Co., ARB No. 2018-0016, ALJ No. 2016FRS-00066, slip op. at 3 (ARB Sept. 23, 2020).

transportation to a hospital is requested by an employee who is injured during the

course of employment, the railroad shall promptly arrange to have the injured

employee transported to the nearest hospital where the employee can receive safe

and appropriate medical care.”49 The Board has interpreted this provision to mean

that the “only affirmative duty created in section 20109(c) is for the railroad carrier

to take the employee to the nearest hospital after a work injury if such a request is

made” and “to stay out of the way of the medical providers.”50 The purpose of the

subsection “is to ensure employees receive prompt medical attention if they are

injured on the job.”51

Complainant contests the ALJ’s denial of his claim. Though Complainant

does not raise the specific issue, Respondent demonstrates that the ALJ properly

found that Complainant did not request medical assistance that would require

Respondent to act. When Lewandowski informed him that no recrews were

available, Complainant stated that he and Wesolowski “need[ed] to be taken off this

train per policy and procedures.” The ALJ found that that this reference to whether

a crew should come to relieve Complainant and Wesolowski did not constitute a

legal request for medical assistance of any kind. The ALJ noted that Complainant

did not indicate why he should be taken off. Though Complainant later learned that

he had been injured, no one, including Complainant, knew of the injuries on the day

of the incident. Complainant also did not show any signs of psychological distress

and indicated to Lamp that he was okay when asked. The ALJ’s finding that

Complainant did not request medical assistance and that Lewandowski or Lamp

could not have known Complainant required medical attention, therefore, is

supported by substantial evidence. Because Complainant did not express any need

for medical assistance, the ALJ also properly concluded that Respondent did not

need to arrange for prompt transportation to a hospital, nor was there any medical

49 U.S.C. § 20109(c).

Santiago v. Metro-North Commuter R.R. Co., Inc., ARB No. 2010-0147, ALJ

No. 2009-FRS-00011, slip op. at 16 (ARB July 25, 2012). The duty imposed by subsection

Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062, slip

op. at 18 (ARB June 17, 2019).

Metro-North Commuter R.R. Co. v. U.S. Dep’t of Labor, 886 F.3d 97, 108

(2d Cir. 2018).

treatment that Respondent could have interfered with. Therefore, the ALJ properly

denied Complainant’s claim under section 20109(c) (1).

Complainant seems to argue that Respondent failed to make available

alleged additional evidence that would demonstrate that recrews and members of

the critical incident response team were in fact available that day to relieve and

provide counseling to Complainant. The Board’s review “is generally limited to the

record that was before the ALJ when he or she decided the case” but “may consider

remanding a case to an ALJ to re-open a record where a party establishes that the

party has submitted new and material evidence that was not readily available prior

to the closing of the record.”52 Here, Complainant failed to produce or identify any

such evidence in his brief. Further, whether recrews or critical incident response

team members were available that day is not relevant to Complainant’s claim

because the record establishes that Respondent did not interfere with any medical

treatment and that Complainant never requested transportation to a hospital.

Complainant also argues that an FRA investigator’s findings that

Respondent committed three violations of U.S. Department of Transportation

regulations53 by failing to follow critical incident stress plan requirements on the

day of the incident demonstrate that Respondent violated the FRSA. Complainant

argues that Respondent’s failure to offer timely relief from duty, failure to inform

about relief options, and failure to offer timely transportation to the home terminal

in violation of the regulations effectively denied and interfered with Complainant’s

Woods v. Boeing-South Carolina, ARB No. 2011-0067, ALJ No. 2011-AIR00009, slip op. at 4 (ARB Dec. 10, 2012); 29 C.F.R. § 18.54(c).

“A railroad subject to this part shall adopt a written critical incident stress

plan approved by the Federal Railroad Administration . . . and shall comply with that plan.”

49 C.F.R. § 272.5. “Each critical incident stress plan under this part shall include, at a

minimum, provisions for - (a) Informing each directly-involved employee as soon as

practicable of the relief options available in accordance with the railroad’s critical incident

stress plan; (b) Offering timely relief from the balance of the duty tour for each directlyinvolved employee, after the employee has performed any actions necessary for the safety

of persons and contemporaneous documentation of the incident; (c) Offering timely

transportation to each directly-involved employee's home terminal, if necessary.” §

272.101.

medical treatment. However, these allegations do not implicate Complainant’s

medical treatment, but focus on whether Complainant had a legal right to be

relieved from duty after a critical incident.54 Moreover, none of those violations

demonstrate that Respondent interfered with Complainant’s medical treatment or

failed to provide transportation to a hospital when requested.

Accordingly, we AFFIRM the ALJ’s decision and order denying

Complainant’s claim.

SO ORDERED.

See 49 C.F.R. § 272.1(a).

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.