U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

CLOVIS COLLEY,

COMPLAINANT,

v.

ARB CASE NO. 2018-0063

ALJ CASE NO. 2017-FRS-00071

DATE: November 6, 2020

UNION PACIFIC RAILROAD

COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Fredric A. Bremseth, Esq. and David H. Stern, Esq.; Bremseth Law

Firm, P.C.; Minnetonka, Minnesota

For the Respondent:

Ryan D. Wilkins, Esq. and Sierra M. Poulson, Esq.; Union Pacific

Railroad; Omaha, Nebraska

BEFORE: James D. McGinley, Chief Administrative Appeals Judge, James

A. Haynes, Thomas H. Burrell, Heather C. Leslie and Randel K. Johnson,

Administrative Appeals Judges

ORDER REVERSING AND REMANDING

This case arises under the employee protection provisions of the Federal Rail

Safety Act of 1982 (FRSA).1 Clovis Colley (Complainant) filed a complaint with the

United States Department of Labor’s Occupational Safety and Health

Administration (OSHA) alleging that Union Pacific Railroad Company (Respondent)

violated the FRSA by terminating him in retaliation for activity protected by the

49 U.S.C. § 20109 (2008), as implemented by federal regulations at 29 C.F.R. Part

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

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FRSA. In November of 2016, Respondent upheld disciplinary charges and dismissed

Complainant from service for falsifying a personal injury report. OSHA determined

that there was no reasonable cause to find that Respondent violated the FRSA.

Complainant appealed the OSHA finding and an Administrative Law Judge (ALJ)

issued a Decision and Order (D. & O.) reversing OSHA and ruling in favor of the

Complainant. 2

The Secretary of Labor has delegated authority to the Administrative Review

Board (ARB or Board) to review ALJ decisions in cases arising under the FRSA and

to issue agency decisions in these matters.3

In this matter, the ALJ found on August 8, 2019, that Complainant proved by

a preponderance of the evidence that his protected activity was a contributing factor

to the termination. Specifically, the ALJ found the adverse action and protected

activity in the present matter are “inextricably intertwined” because all of the

events related to the ultimate dismissal would not have been discovered, or would

not have occurred but for Complainant’s protected activity of filing a report of

injury.4

The ALJ issued her decision before November 25, 2019, when the Board held

in Thorstenson that ALJs should not apply the “inextricably intertwined” or “chain

of events” analysis, noting that the plain language of the statute does not include

the term “inextricably intertwined.”5 The Board rejected these theories of causation

because they depart from the FRSA’s text regarding contributing factor causation.

The ALJ’s finding that Complainant engaged in protected activity is supported by

substantial evidence. The ALJ reviewed the video footage of the alleged incident and found

that Complainant’s testimony corroborated the video footage. Respondent concedes that

upsetting the ALJ’s conclusion as to protected activity is an uphill battle under the

substantial evidence standard. Brief at 19. We affirm as to protected activity.

2

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); see 29 C.F.R. § 1982.110(a).

3

4

D. & O. at 25.

Thorstenson v. BNSF Ry. Corp., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS00052 (ARB Nov. 25, 2019).

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3

The Board made clear that applying either or both of the “inextricably intertwined”

or “chain of events” theories to create a presumption of causation would be legal

error.

On a larger scale, we acknowledge that the U.S. Court of Appeals for the

Eighth Circuit has held that an employee must prove intentional retaliation by the

employer, because the employee engaged in protected activity, in order to meet the

contributing factor element requirement under FSRA.6 The case before us arises

within the Eighth Circuit’s jurisdiction, and the law of that Circuit applies. The

Eighth Circuit has held that without evidence of intentional retaliation, the FRSA’s

contributing factor causation standard is not met.7

Accordingly, the ALJ erred as a matter of law in finding that Complainant

established that his protected activity was a contributing factor in his termination.

Therefore, the Board remands this case to the Office of Administrative Law Judges

for further proceedings consistent with the ARB’s decision in Thorstenson and the

Eighth Circuit’s causation analysis.8

We REVERSE and REMAND for proceedings consistent with this opinion.

SO ORDERED.

6

Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014).

BNSF Ry. Co. v. U.S. Dep’t of Labor Admin. Review Bd., 867 F.3d 942, 946 (8th Cir.

2017); see also Dakota, Minn. & E. R.R. Corp. v. U.S. Dep’t of Labor Admin. Review Bd.,

948 F.3d 940, 947 (8th Cir. 2020) (unequivocally rejecting the chain-of-events and

inextricably intertwined theories of causation).

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The Board has chosen this abbreviated form of remand because it se rves the

important purposes of allowing for a more prompt decision for the parties involved in this

claim. We are also mindful that the ALJ can correctly apply the standards set in

Thorstenson and the law of the Eighth Circuit.

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4

Thomas H. Burrell, Administrative Appeals Judge, concurring

I concur with the majority’s order of remand. I write separately to address a

few points in the ALJ’s D. & O. and ARB precedent concerning the employer’s

affirmative defense. The FRSA provides that if a complainant successfully proves

that protected activity was a contributing factor in the adverse action, the

respondent can avoid relief by proving, by clear and convincing evidence, that it

would have taken the same action in the absence of protected activity.9 The FRSA’s

implementing regulation states:

(b) If the complainant has satisfied the [contributing factor] burden set

forth in the prior paragraph, relief may not be ordered if the

respondent demonstrates by clear and convincing evidence that it

would have taken the same adverse action in the absence of any

protected activity.10

In analyzing the Respondent’s affirmative defense in this case, the ALJ

wrote:

Respondent asserts it had a lawful and valid reason to terminate

Complainant pursuant to its Code of Operating Rules, Rule 1.6

prohibiting dishonesty, based on numerous inconsistencies between

Complainant’s report of injury forms and the video of his trip on

November 17, 2015. . . . However, in establishing the affirmative

defense, “it is not enough to confirm the rational basis of

[Respondent’s] employment policies and decisions. Instead, [the ALJ]

must assess whether they are so powerful and clear that termination

would have occurred apart from the protected activity.” . . . Thus, even

assuming Respondent reasonably and sincerely believed that

Complainant violated company rules on dishonesty and had a

legitimate and rational basis for imposing discipline as a result of the

dishonesty, this alone does not satisfy Respondent’s burden on the

affirmative defense. Respondent must also establish “through factors

extrinsic to [complainant’s] protected activity that the discipline to

9

49 U.S.C. § 20109(d), citing 49 U.S.C. § 42121 (AIR 21’s burden-shifting framework).

10

29 C.F.R. § 1982.109(b).

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which [complainant] was subjected was applied consistently, within

clearly-established company policy, and in a non-disparate manner

consistent with discipline taken against employees who committed the

same or similar violations but were not injured.”11

In Speegle, the ARB held:

To sum up the factors that must be considered in applying

the “clear and convincing” defense, we find that the

statute requires us to consider the combined effect of at

least three factors applied flexibly on a case-by-case basis:

(1) how “clear” and “convincing” the independent

significance is of the nonprotected activity; (2) the

evidence that proves or disproves whether the employer

“would have” taken the same adverse actions; and (3) the

facts that would change in the “absence of” the protected

activity.12

The ARB in Speegle stated that it is not enough that the employer “could have”

imposed the adverse action but it must show that it “would have.” 13

I would characterize these as factors that may assist a fact-finder and may be

11

D. & O. at 26-27 (citations omitted).

Speegle v. Stone & Webster Constr., Inc., ARB No. 2013-0074, ALJ No.

2005-ERA-00006, slip op. at 11-12 (ARB Apr. 25, 2014) (footnotes omitted); see

also DeFrancesco v. Union R.R. Co., ARB No. 2013-0057, ALJ No. 2009-FRS00009, slip op. at 13-14 (ARB Sept. 30, 2015).

12

Speegle, ARB No. 2013-0074, slip op. at 11 (“In addition to the high burden of proof,

the express language of the statute requires that the ‘clear and convincing’ evidence prove

what the employer ‘would have done’ not simply what it ‘could have’ done.”); Brucker v. BNSF

Ry. Co., ARB No. 2014-0071, ALJ No. 2013-FRS-00070, slip op. at 14 (ARB July 29, 2016)

(“To prove what BNSF would have done, it is not sufficient for it to establish that it had an

honesty policy in place under which it could have terminated Brucker’s employment. Instead

it must convincingly demonstrate that it was highly probable that it would have terminated

Brucker’s employment for failing to check the correct box on his employment application,

after nineteen years of employment.”) (emphasis omitted).

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appropriate in some cases but are not necessarily required as a bright-line rule for

all cases. A fact-finder may simply apply the statutory and regulatory text without

additional nonstatutory and nonregulatory factors. We stated in Clem v. CSC

Computer Sci. Corp. that “these [Speegle] factors are not expressly prescribed in the

statutory text and such a rule was not necessary to resolve the matter at issue . . . .

A fact-finder must holistically 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.” 14

The Speegle factors may illuminate an employer’s insufficient evidence in a

particular case, for example, when the employer merely, in retrospect, offers

reasons that could have justified the adverse action but were not manifest in the

actual decisionmaking. But the factors also have the potential to obscure the ALJ’s

analysis. The “could-would” factor, for example, has prevented the fact-finder from

freely analyzing the employer’s nonretaliatory decisionmaking for imposing the

adverse action through its unclear guidance on the meaning of “would have.”

Unlike the framework for analyzing after-acquired evidence, where the employer

must demonstrate that its policies and practice would have generated an outcome if

discovered beforehand,15 the employer proving its affirmative defense will not have

to justify its basis in the abstract. Rather the successful employer can satisfy its

affirmative defense by clear and convincing evidence in the record demonstrating

why it imposed the adverse action, including a reasonable and honest belief that the

employee violated company policy.16

ARB No. 2016-0096, ALJ No. 2015-ERA-00003, -00004, slip op. at 18 n.8 (ARB Sept.

17, 2019).

14

Clemmons v. Ameristar Airways, Inc., ARB No. 2008-0067, ALJ No. 2004-AIR-00011,

slip op. at 2-3 (ARB Apr. 27, 2012) (“[W]here there is after-acquired evidence of wrongdoing

that would have led to termination on legitimate grounds had the employer known about it,”

back pay should be limited to the period “from the date of the unlawful discharge to the date

the new information was discovered.”).

15

Contra Kao v. Areva Inc., ARB No. 2016-0090, ALJ No. 2014-ERA-00004, slip op. at 8

(ARB Apr. 30, 2018) (“[B]y the same token, it is not enough for an employer to show merely

that the employee’s conduct violated company policy or constituted a legitimate business

reason justifying the adverse personnel action.”).

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