# U.S. Department of Labor

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3Aae447815aa0f2d1e

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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).
1

2
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).
5

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).
7

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.
8

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).

5
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).
13

6
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.”).
16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3Aae447815aa0f2d1e. Public record. Not legal advice.