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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

TRAVIS KLINGER,

COMPLAINANT,

ARB CASE NO.

2019-0013

ALJ CASE NO.

2016-FRS-00062

DATE: March 18, 2021

BNSF RAILWAY COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Matthew L. Rabb, Esq. and Lloyd L. Rabb, III, Esq.; Rabb & Rabb,

PLLC; Tucson, Arizona

For the Respondent:

Jacqueline M. Holmes, Esq. and Nikki L. McArthur, Esq.; Jones Day;

Washington, District of Columbia

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

H. Burrell and Randel K. Johnson, Administrative Appeals Judges; Judge

Randel K. Johnson, dissenting

ORDER REVERSING AND REMANDING

This case arises under the whistleblower protection provisions of the Federal

Railroad Safety Act of 1982 (FRSA).1 Complainant Travis Klinger filed a complaint

with the U.S. Department of Labor’s Occupational Safety and Health

Administration (OSHA) alleging that Respondent BNSF Railway Company (BNSF)

violated the FRSA by suspending him for reporting a workplace injury. OSHA

dismissed Klinger’s complaint upon finding that his allegations did not support a

49 U.S.C. § 20109 (2008), as implemented by 29 C.F.R. Part 1982 (2020) and 29

C.F.R. Part 18, Subpart A (2020).

claim of retaliation under the FRSA. Klinger objected to OSHA’s determination and

the case was assigned to an Administrative Law Judge (ALJ).

The ALJ decided the case on the record. In a Decision and Order (D. & O.)

issued on November 30, 2018, the ALJ entered judgment in Klinger’s favor and

awarded Klinger monetary and non-monetary relief. For the following reasons, we

reverse and remand for further proceedings consistent with this order.

BACKGROUND2

On August 9, 2015, Klinger injured his shoulder while working for BNSF in

its Southwest Division.3 Klinger reported his injury to his supervisor before leaving

work to visit the emergency room.4 Klinger later submitted a letter signed by his

doctor, dated August 13, 2015, stating that he should remain off work until

September 25, 2015. The letter included a two-page medical evaluation, in which

Klinger’s physician concluded “I do believe it is likely the patient should be able to

return to work in approximately 6 weeks.”5 BNSF granted Klinger’s request for

leave.6

Over the ensuing months, Klinger submitted three requests from his doctor

to extend his medical leave by approximately a month each.7 The extension requests

did not include any additional information regarding Klinger’s condition or

treatment.8 Even so, BNSF granted each extension.9

After Klinger reported his work-related injury, BNSF automatically enrolled

him in its Medical Care Management Program (MCMP).10 BNSF’s website stated

that the MCMP was available to “all on-the-job injured employees” to “progress a

safe return to gainful employment.”11 According to program documents, the MCMP

included a medical care management component to help employees obtain and

This background follows the ALJ’s findings of fact and the record below. In reciting

this background, we make no independent findings of fact.

D. & O. at 2.

Id. at 2, 9.

Id. at 2-3; Complainant’s Exhibit (CX) 5.

D. & O. at 3.

Id.

See CX 8, 12, 16.

D. & O. at 3.

Id. at 4.

Id. at 14.

coordinate care, and a return-to-work component to plan out and implement the

employee’s return to work from injury.12 Kevin Vaudt served as a field manager for

BNSF’s Southwest Division and coordinated the MCMP for Klinger.13

Although employees injured on the job were automatically enrolled in the

MCMP, the program was voluntary.14 Program documents indicated that, to remain

in the program, employees were required to meet certain conditions, including

actively and responsibly participating in physician-recommended care, signing a

medical release form, participating in second opinion medical evaluations,

participating in transitional work when medically approved, and having treating

physicians provide medical information, including diagnoses, objective test results,

prognoses, restrictions, and recommended treatment plans.15 Program documents

also indicated that an employee who did not meet these conditions or voluntarily

participate should be disqualified from the program, although Vaudt testified that it

was not his practice to disqualify non-complying employees.16

Vaudt initially contacted Klinger by phone on or about August 10, 2015.17

Vaudt then followed the call with a letter to Klinger on August 11, 2015. The letter

outlined the ways Vaudt could help Klinger under the MCMP, including by helping

to coordinate or plan medical care and to plan Klinger’s return to work. Vaudt also

asked Klinger to have his doctor provide Klinger’s diagnosis, treatment plan, work

restrictions, and expected timeframe for Klinger’s ability to return to regular duty,

after each visit.18

Klinger did not respond to Vaudt’s August 11 letter. Consequently, Vaudt

sent Klinger additional letters on or about September 11, October 1, and November

11, 2015.19 The letters asked for Klinger’s medical information, asked him to sign a

medical release, and emphasized the opportunity Klinger had to participate in a

transitional work assignment.20 Vaudt also sent a letter directly to Klinger’s doctor

on September 9, 2015, asking for an update on Klinger’s status, what functional

limitations he might have, and whether a transitional assignment would be

CX 24; see D. & O. at 8-9, 14-15.

D. & O. at 4, 8.

Id. at 9, 15.

Id. at 15.

Id. at 15; CX 37 at 35-36.

D. & O. at 4.

Id. at 4-5.

Id. at 5-6.

Id.

appropriate for him.21 The record also indicates that Vaudt called Klinger and left

him messages on multiple occasions.22

Klinger did not respond to any of Vaudt’s communications and his doctor did

not respond with medical records.23 Klinger testified that he was “turned off” by

Vaudt and believed Vaudt’s conduct, particularly his effort to contact Klinger’s

doctor directly, was “very shady.”24

Having not heard from Klinger, Vaudt passed the matter to Steve Curtright,

the General Manager of the Southwest Division.25 Curtright sent Klinger a certified

letter on October 14, 2015, which ordered Klinger to have his doctor provide medical

information to Vaudt. The letter stated “I understand from our medical and

environmental health (MEH) group that you have not voluntarily provided them

with the requested medical information. AT [sic] this juncture, however, please

understand that as your employer the BNSF now requires the medical information

regarding your injury for the following reason(s) . . .” The reasons given by

Curtright were that the information provided by Klinger to that point indicated that

his absence was beyond a reasonable duration according to national disability

guidelines; that BNSF needed to know when and in what capacity Klinger would be

able to return to work so it could meet its manpower planning responsibilities; and

to allow BNSF to identify appropriate existing vocational or developmental

opportunities to assist Klinger in locating alternative work. Curtright ordered

Klinger to have his doctor provide his diagnosis, treatment plan, approximate

length his treatment would continue, and current functional level and restrictions,

to Vaudt within ten days of delivery of the letter. The letter warned that Klinger’s

failure to comply with Curtright’s instruction would be considered misconduct and

could subject Klinger to discipline.26

On October 21, 2015, Klinger asked his doctor to send the requested records

to BNSF, but the doctor’s office forgot to send them.27 Klinger did not notify anyone

at BNSF that he had asked his doctor’s office to comply with Curtright’s letter or

confirm with BNSF that it had received the information.28

Id. at 5.

Respondent’s Exhibit (RX) Q; CX 36 at 98.

See D. & O. at 8; see also RX Q; CX 36 at 98-100; CX 37 at 45, 47, 50-51 55-56.

D. & O. at 8.

Id. at 10.

Id. at 7; CX 14.

D. & O. at 12.

Id.

BNSF issued Klinger a notice of investigation on November 2, 2015, stating

that BNSF would conduct a hearing regarding Klinger’s “alleged misconduct when

[he] allegedly failed to comply with instructions specifically, when [he was] notified

to contact Medical Care Manager Kevin Vaudt on numerous occasions, most

recently in certified letter [sic] from General Managers [sic] Office dated October 14,

2015, requiring information from [his] Physician.”29 After receiving the notice of

investigation, Klinger called Vaudt on November 9, 2015, and supplied him with a

medical release on November 11.30

BNSF conducted a hearing on November 23, 2015.31 Curtright did not attend

the investigation, but reviewed the transcript and exhibits and found that Klinger

had violated multiple of BNSF’s General Code of Operating Rules regarding

furnishing information, conduct, and reporting and complying with instructions.32

Curtright assessed Klinger a level S serious, 30-day record suspension.33 Klinger

did not lose any pay as a result of the suspension, but was placed on a three year

review period and was notified that any rules violations during that three year

period could result in further discipline.34

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the Administrative Review Board

(ARB or the Board) the authority to review ALJ decisions under the FRSA.35 The

ARB will affirm the ALJ’s factual findings if they are supported by substantial

evidence, but reviews all conclusions of law de novo.36 As the United States

Supreme Court has noted, “the threshold for such evidentiary sufficiency is not

high.”37 Substantial evidence is “‘more than a mere scintilla.’ It means—and means

only—‘such relevant evidence as a reasonable mind might accept as adequate to

Id. at 7.

Id. at 12.

Id. at 11.

Id.

Id. at 7.

Id. at 2, 7.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020); see

29 C.F.R. § 1982.110(a).

Yowell v. Fort Worth & W. R.R., ARB No. 2019-0039, ALJ No. 2018-FRS-00009, slip

op. at 4 (ARB Feb. 5, 2020).

Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).

support a conclusion.’”38 In addition, we generally defer to an ALJ’s credibility

findings unless they are inherently incredible or patently unreasonable.39

DISCUSSION

The FRSA prohibits a rail carrier engaged in interstate commerce from

discharging, demoting, suspending, reprimanding, or in any other way retaliating

against an employee who engages in certain protected activity, such as reporting a

work-related injury or illness.40 To prevail on an FRSA claim, a complainant must

establish by a preponderance of the evidence that (1) he engaged in protected

activity, (2) he suffered an unfavorable personnel action, and (3) the protected

activity was a contributing factor in the unfavorable personnel action.41 If a

complainant meets his burden of proof, the employee may avoid liability only if it

proves by clear and convincing evidence that it would have taken the same

unfavorable personnel action in the absence of a complainant’s protected behavior.42

The ALJ concluded that Klinger engaged in protected activity when he

reported that he suffered a work-related injury in August 2015, that Klinger’s

record suspension constituted adverse action, and that Klinger proved by a

preponderance of the evidence that Klinger’s injury report contributed to his

suspension.43 The ALJ also held that BNSF did not prove by clear and convincing

evidence that it would have suspended Klinger in the absence of his protected

activity. Accordingly, the ALJ entered judgment in Klinger’s favor and awarded

Klinger $100,000 in punitive damages,44 other non-monetary relief, and reasonable

attorney’s fees and costs.

BNSF argues on appeal that Klinger’s protected activity did not contribute to

his suspension and, alternatively, that it proved by clear and convincing evidence

that it would have suspended Klinger even in the absence of his protected activity

due to his failure to follow Curtright’s instructions in the October 14, 2015 letter.

Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

Mizusawa v. United Parcel Serv., ARB No. 2011-0009, ALJ No. 2010-AIR-00011, slip

op. at 3 (ARB June 15, 2012).

49 U.S.C. § 20109(a)(4).

Brucker v. BNSF Ry. Co., ARB Nos. 2018-0067, -0068, ALJ No. 2013-FRS-00070, slip

op. at 6 (ARB Nov. 5, 2020); see 49 U.S.C. § 20109(d)(2)(A)(i) (incorporating 49 U.S.C. §

42121(b)(2)(B)(i)).

Brucker, ARB Nos. 2018-0067, -0068, slip op. at 6; see 49 U.S.C. § 42121(b)(2)(B)(ii).

BNSF did not dispute below or on appeal that Klinger engaged in protected activity

or that the suspension constituted adverse action.

Klinger did not request any compensatory damages.

BNSF also appeals the remedies imposed by the ALJ, arguing that the punitive

damages were unwarranted and excessive and that the non-monetary relief

exceeded the scope of permissible remedies under the FRSA.

We find that the ALJ committed legal error which requires the Board to

remand this matter to the ALJ. As detailed below, the ALJ cited and applied the

“inextricably intertwined” analysis that the Board rejected in Thorstenson v. BNSF

Ry. Co.45 We remand to the ALJ to evaluate the case free of the inextricably

intertwined analysis and in accordance with the guidance offered below.

1. Contributing Factor

As set forth above, to establish a violation under the FRSA, a complainant

must show that his protected activity was a “contributing factor” in the adverse

employment action.46 A “contributing factor” is “any factor, which alone or in

connection with other factors, tends to affect in any way the outcome of the

decision.”47 “[T]he contributing factor that an employee must prove is intentional

retaliation prompted by the employee engaging in protected activity.”48 In satisfying

this statutory standard, a complainant need not prove a retaliatory motive beyond

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

adverse action.49

The focus of the ALJ’s contribution analysis is his finding that BNSF

unreasonably and unfairly disregarded the MCMP policy, which led to or created

the grounds for Klinger’s eventual discipline. The ALJ found that participation in

the MCMP, in which Klinger was automatically enrolled after reporting a

workplace injury, was voluntary and that disinterested or non-participating

employees should be disqualified from the program.50 Yet, when Klinger “was not

forthcoming and did not voluntarily participate in the program,” the ALJ found that

ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019).

49 U.S.C. § 42121(b)(2)(B)(i).

Acosta v. Union Pac. R.R. Co., ARB No. 2018-0020, ALJ No. 2016-FRS-00082, slip

op. at 6 (ARB Jan. 22, 2020) (quoting Rookaird v. BNSF Ry. Co., 908 F.3d 451, 461-62 (9th

Cir. 2018)).

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

Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 158 (3d Cir. 2013); see

Frost v. BNSF Ry. Co., 914 F.3d 1189, 1195 (9th Cir. 2019) (“Showing that an employer

acted in retaliation for protected activity is the required showing of intentional

discrimination; there is no requirement that FRSA plaintiffs separately prove

discriminatory intent.” (emphasis original)).

D. & O. at 9.

Vaudt reported him to Curtright instead of disqualifying him.51 Curtright also

“ignored the voluntary nature of the program and interjected his view into the

process” by ordering Klinger to produce his medical information.52 Ultimately, the

ALJ found that Curtright disciplined Klinger for failing to produce his medical

records, despite and in contravention of the supposedly voluntary nature of the

MCMP.53

These findings led the ALJ to conclude that Klinger’s protected activity

contributed to his suspension through use of an “inextricably intertwined” analysis.

At the outset of his contribution analysis, the ALJ stated:

The protected activity here is inextricably intertwined with

Respondent’s confused notion that it enrolled Complainant

in what it describes as a voluntary program, but in

application and practice is a mandatory program. As the

ARB explained, Complainant’s discipline cannot be

explained or discussed without mentioning his protected

activity.[54]

From the foregoing, it appears that the ALJ determined that Klinger’s

reporting of an injury contributed to his suspension because it prompted his

enrollment in the MCMP, which, in turn and as unfairly applied, resulted in

Klinger’s discipline. Stated another way, the ALJ appears to have found that the

MCMP never would have been invoked, and Klinger therefore never would have

been unreasonably disciplined for his refusal to provide his medical information as

part of that program, but for his reporting of a workplace injury.55

The D. & O. issued on November 30, 2018, before the Board decided

Thorstenson v. BNSF Ry. Co. the following year. As we explained in that case, the

“inextricably intertwined” and “chain of events” analyses, which to that point had

been frequently applied by ALJs and approved by the Board, departed from the

plain text of the FRSA. The Board observed that these analyses often substituted

for, and in some cases circumvented, the appropriate, statutory contributing factor

Id. at 22.

Id.

Id. at 26 (“Respondent confabulates the facts here; Complainant was not required to

participate in the medical program or even cooperate, yet Respondent disciplined him for

his failure to participate and comply with the company program.”).

Id. at 22.

See id. at 25-26 (“Mr. Curtright was only involved in the case because Complainant

reported a work-related injury and took time off work for the same injury, but did not

provide a complete release of medical files.”).

or affirmative defense analyses.56 As a result, since Thorstenson, the Board has

repeatedly held that applying the inextricably intertwined or chain of events

analyses constitutes reversible legal error.57, 58 Even in situations in which both the

protected activity and the employer’s non-protected reason for adverse action arise

from the same bundle of events or situations in which the protected activity

incidentally initiated the sequence that resulted in the adverse action, the ALJ, as

the fact-finder, must still decide whether the protected activity “contributed to” the

adverse decision.59

We cannot ascertain whether the ALJ would have concluded that Klinger’s

protected activity contributed to his suspension had he not applied the inextricably

intertwined analysis to link BNSF’s objectionable conduct to Klinger’s reporting of a

workplace injury. The ALJ began his contribution analysis by relying on the

inextricably intertwined nature of the protected activity with the events that

Thorstenson, ARB Nos. 2018-0059, -0060, slip op. at 10.

Rothschild v. BNSF Ry. Co., ARB No. 2019-0022, ALJ No. 2017-FRS-00003, slip op.

at 2-3 (ARB Nov. 30, 2020); Colley v. Union Pac. R.R. Co., ARB No. 2018-0063, ALJ No.

2017-FRS-00071, slip op. at 2-3 (ARB Nov. 6, 2020); Perez v. BNSF Ry. Co., ARB Nos. 20170014, -0040, ALJ No. 2014-FRS-00043, slip op. at 10 (ARB Sept. 24, 2020).

We recognize that the Ninth Circuit Court of Appeals, which would have jurisdiction

over this case, recently reversed the Board’s decision in Thorstenson. Thorstenson v. U.S.

Dep’t of Labor, 831 F. App’x 842 (9th Cir. 2020) (unpublished). The Ninth Circuit, in an

abbreviated and unpublished decision, rejected the Board’s holding in Thorstenson that,

rather than applying an inextricably intertwined or chain of causation analysis, the ALJ

must instead determine whether the protected activity was the “proximate cause” of the

adverse action. Id. at 843-44 (“A proximate cause standard is inconsistent with this circuit’s

law regarding the requirements of the FRSA, which requires plaintiffs to prove only that

their protected conduct was ‘a factor, which alone or in connection with other factors,

tend[ed] to affect in any way the outcome of the decision.’”). Although the Ninth Circuit

stated that a proximate cause standard was inconsistent with circuit law, it appears to

have relied upon a more rigorous definition of “proximate cause” than the ARB’s citation,

which distinguished legal causation from mere factual causation. The Ninth Circuit did not

discuss the Board’s principal holding in Thorstenson that the inextricably intertwined and

chain of events analyses were improper substitutes for the statutory causation and sameaction defense analyses. Absent elaboration or further guidance from the Ninth Circuit, and

in light of the unpublished nature of the Ninth Circuit’s reversal, we continue to adhere to

our opinion that applying an inextricably intertwined or chain of events analysis for the

issues of causation and the same-action defense is reversible error. See Hart v. Massanari,

266 F.3d 1155, 1177-78 (9th Cir. 2001) (stating that in an unpublished decision “the rule of

law is not announced in a way that makes it suitable for governing future cases” and that

“[a]n unpublished disposition is, more or less, a letter from the court to parties familiar

with the facts, announcing the result and the essential rationale of the court’s decision”).

See Riddell v. CSX Transp., Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054, slip

op. at 21 n.13 (ARB May 19, 2020).

transpired here, and throughout the analysis he appeared to return to the notion

that Klinger’s protected activity was, at a basic level, at least factually connected to

his discipline via a direct sequence of events.60 The ALJ also suggested alternative

motives for BNSF’s conduct, potentially incidental or tangential to Klinger’s

reporting of an injury, that are not inherently violations of the FRSA. For example,

the ALJ suggested that BNSF’s response may have been driven by Klinger

contumaciously ignoring BNSF’s communications.61 The ALJ also repeatedly

asserted that BNSF was driven by a singular desire to secure Klinger’s medical

information.62

It is apparent that the driving force behind the ALJ’s contribution analysis

was his determination that BNSF’s decision to discipline Klinger for refusing to

produce his medical records under the MCMP was egregious and unfair. The ALJ

criticized BNSF’s conduct as a misleading,63 heavy-handed,64 and unfair departure

D. & O. at 25-26 (“Mr. Curtright was only involved in the case because Complainant

reported a work-related injury and took time off work for the same injury, but did not

provide a complete release of his medical files.”), 26 (“In this matter, Complainant did not

participate in a voluntary program related to his work related injury. There was no

separation and there was no independent or intervening cause.”). Our dissenting colleague

suggests that the ALJ’s analysis of “intervening events” renders his use of “inextricably

intertwined” harmless. We note that the “inextricably intertwined” problem and causal

concept of “intervening events” are not mutually exclusive. An ALJ could apply the

problematic rule but yet recognize the possibility of intervening events with no connection

whatsoever to the protected activity. The problem here is that the ALJ’s “inextricably

intertwined” application tainted his analysis of intervening events.

Id. at 22 (“Complainant did not respond to Mr. Vaudt, which both Mr. Vaudt and

Mr. Curtright appeared to find particularly aggravating while ignoring that providing

information was allegedly not required and supposed to be voluntary.”)

Id. at 20 (stating that Vaudt’s “true motive [ ] was to obtain Complainant’s medical

information regardless of how”), 24 (“It was clear that Respondent intended to get the

private medical records and information one way or another, regardless of whether

Complainant willing[ly] complied or not.”).

Id. at 20 (“Respondent’s website notes that the program is voluntary, but you would

not have known that from Mr. Vaudt’s communications.”), 23 (“Mr. Vaudt also never told

Complainant that his failure to provide the information or participate in the voluntary

program could lead to discipline.”), 24 (“Mr. Curtright disciplined Complainant even though

it had never been made clear to Complainant that Mr. Vaudt’s requests were not voluntary

as the program states, but in fact mandatory.”).

Id. at 21 (“Mr. Curtright appeared heavy handed in his handling of the matter.”), 28

(“While the program looks good on paper, Respondent’s heavy-handed implementation

leaves much to be desired.”)

from stated company policy.65 The ALJ also regarded BNSF’s conduct as an

unreasonable invasion of Klinger’s medical privacy.66

Even if supported by substantial evidence, the ALJ’s findings and conclusions

that Klinger’s suspension was the byproduct of BNSF’s unfair and unreasonable

conduct and departure from policy67 do not necessarily establish that Klinger’s

protected activity contributed to his suspension, in the absence of the “inextricably

intertwined” analysis. As the ALJ recognized in his recitation of applicable law, the

ALJ and the ARB should not sit as a super-personnel department evaluating the

wisdom of BNSF’s business judgments. “An employer’s actions can be harsh, faulty,

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

whistleblowing activity.”68 Our task is not to evaluate whether an employer

overstepped, made erroneous or even arbitrary decisions, or did as we would have

Id. at 20 (“Mr. Vaudt also did not follow company procedure and protocols for injured

workers who do not voluntarily participate in the program, and he did not explain why he

chose to approach the general manager over using the process that he said was in place for

non-participating injured workers.”), 21 (“Both Mr. Curtright and Mr. Vaudt’s conduct was

contrary to the policy and direction from the program.”), 23 (“If he was in a voluntary

program and did not participate, Respondent should have followed its protocol and taken

him out of the program, not disciplined him.”), 24 (“When Complainant decided not to

participate in the program, Respondent’s literature said that he would be disenrolled in the

program until he decided to participate. In practice, the exact opposite happened.”).

Id. at 23 n.15 (“Respondent did not explain how its conduct comports with patient

privacy rules.”).

Although the ALJ cited evidence for the proposition that an employee who does not

voluntarily participate in the MCMP should be disqualified, at least one policy document

upon which the ALJ relied suggests that BNSF may still have required disqualified

employees to produce medical information similar to that which Vaudt and Curtright

requested:

If an injured employee does not comply with any of the above fiveenrollment criterion [for the MCMP], the employee will be disqualified

from the program. The must [sic] provide medical information to

MEH that includes [current medical conditions, treatment

plan, approximate length of treatment, and functional level

and restrictions].

D. & O. at 15 (emphasis added) (citing CX 24, 27) (emphasis added). Although the ALJ

quotes this language, neither the ALJ nor the parties discuss the import of the language.

On remand, the ALJ may choose to revisit this document and analyze what

“disqualification” from the MCMP means and what impact, if any, this language has on the

ALJ’s conclusion that BNSF departed from policy by demanding Klinger’s medical

information even when he declined to voluntarily participate in the MCMP.

Acosta, ARB No. 2018-0020, slip op. at 11.

done.69 Rather, the ALJ and the ARB must scrutinize the record for evidence that

the employer’s proffered explanations and actions are false and pretextual or

otherwise evidence of unlawful discrimination.70 Although BNSF may have engaged

in objectionable conduct, and although that objectionable conduct may be

sequentially linked to Klinger’s reporting of a workplace injury, the ALJ must

nevertheless assess whether Klinger’s protected activity, alone or with other factors,

actually influenced BNSF’s conduct.71

We do not discount the possibility that the ALJ may appropriately find on

remand that the way BNSF treated Klinger in the context of the MCMP and its

demands for his medical records constitutes circumstantial evidence that Klinger’s

reporting of a workplace injury contributed to BNSF’s decision to suspend him. As

the Board has repeatedly emphasized, a complainant’s protected activity need only

be one, even insubstantial, factor in the employer’s adverse action, and may still

“contribute” to the adverse action even if other factors also influenced the decision.72

We have also often stated that inconsistent application of a company’s policies could

be circumstantial evidence of retaliation.73 The ALJ may also consider other

circumstantial evidence, including temporal proximity, shifting explanations for

BNSF’s actions, antagonism or hostility towards Klinger’s protected activity, the

falsity of BNSF’s explanation for the adverse action taken, or a change in BNSF’s

attitude towards Klinger after he engaged in protected activity.74

However, it is crucial on remand that the ALJ not simply evaluate the merits

of the MCMP, BNSF’s deviations from the MCMP policy as described on paper, or

the fairness of BNSF’s conduct in its interactions with Klinger in the abstract,

independent of whether the reporting of Klinger’s workplace injury itself influenced

that conduct in some way. Similarly, the ALJ should not merely assess the general

propriety or validity of BNSF’s demands for Klinger’s medical records and the

potential invasion of his privacy rights that may come from requesting medical

Berg v. S & H Express, ARB No. 2017-0075, ALJ No. 2015-STA-00014, slip op. at 9

(ARB June 4, 2020); Jenkins v. U.S. Envt. Prot. Agency, ARB No. 1998-0146, ALJ No. 1988SWD-00002, slip op. at 39 (ARB Feb. 28, 2003).

Jenkins, ARB No. 1998-0146, slip op. at 39.

Palmer v. Canadian Nat’l Ry./Ill. C. R.R. Co., ARB No. 2016-0035, ALJ No. 2014FRS-00154, slip op. at 64 (ARB Sept. 30, 2016) (reissued with full dissent Jan. 4, 2017) (J.

Corchado, concurring) (“[C]ontributing factor means protected activity was an actual factor

(influence) in the employer’s unfavorable employment action.”)

Id. at 53 (“‘Any’ factor really means any factor. It need not be ‘significant,

motivating, substantial or predominant’—it just needs to be a factor.”).

Id. at 59-60.

Lancaster v. Norfolk S. Ry. Co., ARB No. 2019-0048, ALJ No. 2018-FRS-00032, slip

op. at 7 (ARB Feb. 25, 2021).

records. It is not enough that the reporting of a workplace injury may have been the

incidental factual or initiating predicate for the unfair, unreasonable, or

objectionable conduct that followed with the MCMP. If the ALJ reaches the same

outcome on remand, he should explain how these findings, or others, support the

ultimate conclusion that Klinger’s reporting of an injury contributed to his

suspension, without utilizing the inextricably intertwined analysis and without

casting it as a mere sequential link to Klinger’s protected activity.

2. Same-Action Defense

If a complainant proves that his protected activity contributed to an adverse

action, the employer may nevertheless avoid liability if it proves by clear and

convincing evidence that it would have taken the same unfavorable action in the

absence of the complainant’s protected activity.75 BNSF’s same-action defense in

this case is based on Klinger’s refusal to follow Curtright’s October 14 order to

produce his medical information. According to BNSF, it needed Klinger’s updated

medical information because Klinger’s absence exceeded that which would be

expected for his injury, based on the limited information Klinger had provided to

that point. Relatedly, BNSF also claimed it needed Klinger’s medical information

for manpower planning purposes. BNSF argues that it issued Klinger the

“standard” discipline of a record suspension because he disobeyed Curtright’s valid

instruction.76

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

ALJ’s analysis of BNSF’s same-action defense. Once again, the ALJ appears to have

assessed BNSF’s defense, at least in part, through the lens of the inextricably

intertwined analysis. The ALJ stated:

To contend, as Mr. Vaudt and Mr. Curtright did, that the

only reason they suspended Complainant was because he

did not comply with a direct order from the general

manager belies what occurred in this matter. I do not find

Mr. Curtright credible on this point and do not believe his

explanation that he would have taken the same action

independent of the medical leave. There would have

been no reason for Mr. Curtright to take any action

49 U.S.C. § 20109(d)(2)(A)(i) (incorporating 49 U.S.C. § 42121(b)(2)(B)(iv) (“Relief

may not be ordered . . . if the employer demonstrates by clear and convincing evidence that

the employer would have taken the same unfavorable personnel action in the absence of

that behavior.”)).

D. & O. at 11

against Complainant but for the work-related

injury.[77]

BNSF may be able to prove its affirmative defense even though Curtright may have

only been involved in the matter because Klinger reported a workplace injury.78

In addition, as with the ALJ’s causation analysis, the ALJ’s same-action

defense analysis appeared to turn, at least in part, on the ALJ’s assessment that

BNSF’s conduct and application of the MCMP was unfair and unreasonable. For

example, the ALJ explained that he was “unmoved” by BNSF’s proffered reason and

rationale for the MCMP, stating that although the MCMP “looks good on paper,”

BNSF’s “heavy-handed implementation leaves much to be desired.”79 Similarly, the

ALJ criticized BNSF for overstepping in its requests for Klinger’s medical

information. The ALJ observed that BNSF requested medical information from

workers injured on the job “beyond that which is needed to approve a medical leave

of absence,”80 and found that Curtright and Vaudt acted together to get medical

information that it “was not entitled to have without Complainant’s consent.”81

As we explained with respect to the causation analysis, the manner in which

BNSF applied the MCMP and treated Klinger may be evidence of unlawful conduct

and may undermine BNSF’s explanations for its conduct. However, the fact that

BNSF’s conduct may have been misguided, or that BNSF may have infringed on

Id. at 28 (emphasis added).

See Yowell, ARB No. 2019-0039, slip op. at 7-8 (finding legal error where ALJ

discounted possibility that employer could prove its same-action defense because of

inextricably intertwined analysis); cf. Speegle v. Stone & Webster Constr., Inc., ARB No.

2014-0079, ALJ No. 2005-ERA-00006, slip op. at 6-7 (ARB Dec. 15, 2014) (affirming an

ALJ’s finding that the employer proved the same-action defense, despite previously finding

that the complainant’s protected activity and the non-protected activity forming the basis of

the employer’s decision to terminate the employee were inextricably intertwined).

D. & O. at 28.

Id.

Id. at 27. It is not clear to the Board why the ALJ reached the conclusion that BNSF

was not entitled to Klinger’s medical information without his consent. Although the parties

disagreed as to when, and the manner in which, BNSF might demand medical information,

there does not appear to be any debate that an employer like BNSF may be entitled to some

medical information from its employees, especially for employees injured on the job who

may receive certain disability, worker’s compensation, or other benefits. Moreover, although

the ALJ questioned how BNSF’s actions comported with HIPAA, he did not explore the

contours of that law or how it applied in the circumstances of this case. To the extent these

findings are material to the ALJ’s decision on remand, he should clarify the factual bases

for them and how the findings connect to his judgment that BNSF’s conduct indicated that

Klinger’s protected activity contributed to his suspension.

Klinger’s privacy rights, does not necessarily preclude the possibility that BNSF

could establish its same-action defense.82 To the extent the ALJ reaches the same

result on remand, he should explain, without reference to the inextricably

intertwined or chain of events analyses and without merely critiquing or secondguessing the virtue of BNSF’s business judgments in their own right, how these

findings support the conclusion that Klinger’s protected activity contributed to his

suspension or undermine BNSF’s stated reasons for its actions.

3. Damages

As the ALJ correctly observed, punitive damages may be awarded in cases in

which a respondent acted with reckless or callous disregard for the complainant’s

rights under the FRSA or intentionally violated the law. In addition, when an ALJ

determines an award of punitive damages is appropriate, he or she may consider

the reprehensibility or culpability of the respondent’s conduct, the relationship

between the penalty and the harm to the victim caused by the respondent’s actions,

and the sanctions imposed in other cases for comparable misconduct when

determining the amount of punitive damages that should be awarded.83

Because we vacate the ALJ’s decision with respect to BNSF’s liability, we

also vacate the ALJ’s award of damages. If the ALJ reaches the same outcome as to

BNSF’s liability on remand, we will review that decision and any award of damages

in due course. Just as our holding today does not preclude the possibility that the

ALJ may appropriately find BNSF liable on remand, we also do not discount the

possibility that the ALJ may appropriately find that punitive damages are

warranted under the standard articulated above. However, we observe that as with

the liability analysis, it appears that the ALJ’s punitive damages analysis may have

veered towards a skewed judgment of the merits of the MCMP and BNSF’s conduct

in the abstract and may have been premised, at least in part, on the ALJ’s

assessment that BNSF violated Klinger’s privacy rights.84 We repeat again that a

significant, intentional, or reckless departure from law may offer evidence not only

of BNSF’s liability, but also its culpability for purposes of awarding punitive

Culver v. Gorman & Co., 416 F.3d 540, 547 (7th Cir. 2005) (“An employer’s

explanation can be foolish or trivial or even baseless so long as it honestly believed the

proffered reason for the adverse employment action.” (internal citations and quotations

omitted)).

D. & O. at 29-30; Raye v. Pan Am Rys., Inc., ARB No. 2014-0074, ALJ No. 2013-FRS00084, slip op. at 8-10 (ARB Sept. 8, 2016).

D. & O. at 31 (“Respondent did not care about federal law or worker privacy, and in

practice submitted letters to medical providers in the name of the company seeking

information for which it had not been given permission to seek because ‘sometimes they get

it’ . . . . There was no attempt to follow the law or company policy and they did not respect

the injured worker/Complainant’s medical privacy. . . .”).

damages. However, the ALJ must assess BNSF’s liability and culpability for a

violation of the FRSA, rather than BNSF’s liability or culpability for other

misconduct.

CONCLUSION85

For the foregoing reasons, we REVERSE and REMAND for proceedings

consistent with this opinion.

SO ORDERED.

Randel K. Johnson, Administrative Appeals Judge, dissenting:

I respectfully dissent from my colleagues’ decision to remand this case for

further consideration.

Many statements of apparent truth become hackneyed over time because

perhaps they were never established on a proper basis to begin with, or simply

became outdated and irrelevant as society changed. However, while its historical

roots may be unclear, the statement that “justice delayed, is justice denied,” and its

meaning that lengthy delays in a judicial system effectively gut a remedy to a

proven wrong remains as powerful as ever. “Justice delayed, is justice denied is a

maxim which means that even if remedy against an illegal injury caused is

available but not executed in due time, such a situation is comparable to having no

remedy at all.”86 It is also clear that inordinate delays can debase the judicial

system and the confidence of the public in that system.87 Lastly, I believe that one

can take judicial notice of the fact that delays are often used by parties to grind

down the ability of the opposing parties to continue to maintain their cases in court,

or the relevant administrative bodies, regardless of merit, and increase leverage for

settlements. One might question whether judicial, or administrative, bodies should

enable such a tactic—even if the solution is unclear.

Our holding renders moot BNSF’s Motion to Reopen the Record to add a decision of

the Public Law Board to the record. The ALJ may elect to consider the issue raised in that

motion, to the extent BNSF raises it on remand.

Justice Delayed is Justice Denied, Study Today, https://www.studytoday.net/justicedelayed-is-justice-denied/ (last visited Mar. 17, 2021).

William E. Burger, The State of the Judiciary—1970, 56 ABA J. 929, 934 (1970) (“A

sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a

free people, and three things could destroy that confidence and do incalculable damage to

society [including] [t]hat people come to believe that inefficiency and delay will drain even a

just judgment of its value . . . .”).

While it can hardly be argued that the wheels of justice often grind too slowly

in much of the judicial system, this unfortunate fact does not preclude, I believe,

decision makers from taking into consideration what the effects of additional delays

might be when evaluating the appropriateness of a remand in a particular case.

Phrased another way, the fact that a problem is nearly ubiquitous does not require

that we turn a blind eye to its potential in an individual case.

Procedurally, this case dates back to at least December 2015 when the

subject complaint was submitted to OSHA for evaluation and objections were filed

in June 2016. A former ALJ on the case issued an order that the case be submitted

and decided on the record. The case was subsequently transferred to another ALJ

when the original judge moved to a different agency. On November 30, 2018, the

decision before us was issued. It is now March 2021. For some six years this case

has lingered within the Department of Labor.

Of course, it is the role of the ARB, and similar reviewing courts and

appellate bodies, to remand decisions rendered below if there has been, typically, an

error of law or lack of substantial evidence in support of factual findings, depending

on the exact nature of the review set out in the applicable statute. But, I believe

that it is appropriate to evaluate these issues partially through the prism of the

delays which would necessarily result in a further remand, balancing the equities.88

Here the Majority believes that the ALJ erred by applying the “inextricably

intertwined” standard of earlier ARB case law, noting that this standard was

reversed, after the ALJ rendered the decision before us, in the Thorstenson case.

However, I believe that one fair reading of the D. & O. indicates that the ALJ did

not strictly or exclusively apply an inextricably intertwined or chain of events

causation analysis, and instead conducted an analysis consistent with the principles

expressed by the Board in Thorstenson.89 Phrased another way, although the ALJ

See Conley v. U.S., 323 F.3d 7, 18 (1st Cir. 2003) (Bownes, J., dissenting) (“My final

comment is a direct reply to the majority’s discussion of justice. Simply put, ‘Justice delayed

is Justice denied.’ I think this court has a duty to decide this case and that a remand is

unnecessary.”); Foulks v. Oh. Dep’t of Rehab. & Corr., 713 F.2d 1229, 1234 (6th Cir. 1983)

(Keith, J., dissenting) (“Over ten years ago, the plaintiff Curtis Foulks was the victim of

racial discrimination. . . . Today, the majority remands the case for reconsideration of the

findings of fact and conclusions of law with respect to the individual defendants, thus

further delaying redress of the wrongs plaintiff has suffered. To deny prompt relief gives

credence to the age-old maxim, justice delayed is justice denied.”).

As the Majority notes, the Ninth Circuit rejected the Board’s holding in Thorstenson

that, in lieu of conducting a strict inextricably intertwined or chain of events analysis, ALJs

should instead resolve whether a complainant’s protected activity was a “proximate cause”

of the adverse action. The Majority notes that scope of the Ninth Circuit’s disagreement

with the Thorstenson case is unclear. The disagreement is easy to understand, as the

did set the table with references to the “inextricably intertwined” framework, his

analysis also referred to concepts indicating that he was open to and did consider

whether or not intervening events could have broken the chain of causation, in

contrast to the “inextricably intertwined” approach to examining causation which

accepts that one domino fells the next and that any domino is a “contributing

factor.” Granted, the analysis is not crystal clear, but the ALJ did state that “not all

connection via a chain of events establishes contribution” and that “[w]hen there are

intervening events that might explain the adverse action, the question is whether

the intervening events negate a finding that the complainant’s protected activity

was a contributory factor in the respondent’s adverse action.” Ultimately, the ALJ

concluded based on his weighing of the evidence that he could not find that

Klinger’s “failure to comply with Mr. Curtright’s letter was an intervening act

sufficient to sever the connection between the protected activity and the

discipline.”90

While not using other concepts such as superseding events or extreme

remoteness91 which can be part of a traditional causation analysis, the ALJ did

acknowledge that intervening events could break a causal chain of events and thus

did not adhere to the “inextricably intertwined” analysis which was rejected in

Thorstenson. We, as reviewers, may not agree with his conclusion that there was no

intervening event in this case, but I believe that the ALJ used a proper analytical

framework.

phrase “proximate cause,” is a vessel into which so much has been poured and from which

so much confusion has arisen. “There is perhaps nothing in the entire field of law which has

called forth more disagreement, or upon which the opinions are in such a welter of

confusion” than the issue of “proximate cause.” W. PAGE KEETON ET AL., PROSSER AND

KEETON ON THE LAW OF TORTS 263 (5th ed. 1984); accord CSX Transp. Inc. v. McBride, 564

U.S. 685, 701 (2011) (stating that the term “proximate cause” is “notoriously confusing” and

“the lack of consensus on any one definition of ‘proximate cause’ is manifest.”) Thus, two

intelligent individuals could be using the same two words when talking to each other, but

mean completely different things, as the proverbial two ships passing in the night. However

defined or labeled, though, the fundamental principle behind imposing any limitation on a

causation analysis—whether the potential misnomer “proximate cause” is attached to that

limitation or not—is that not all factual causes predating an injury should be considered

legally cognizable causes of it. PROSSER AND KEETON, at 264; Archer v. Warner, 538 U.S.

314, 326 (2003). Even if an event would not have occurred “but for” some factual precursor,

“it still does not follow that there is liability, since other considerations remain to be

discussed and may prevent liability.” PROSSER AND KEETON, at 266. Those other

considerations include, for example, intervening events, as considered by the ALJ here.

Absent such limitations, liability could be extended ad absurdum. Koziara v. BNSF Ry. Co.,

840 F.3d 873, 877-78 (7th Cir. 2017). Surely, the Ninth Circuit could not have intended

such a result.

D. & O. at 25-26 (internal citations and quotations omitted).

PROSSER AND KEETON, at 264, 301-02.

This conclusion is buttressed by the fact that a review of past ARB cases

applying the “inextricably intertwined” analytical principles finds very little

reference to factors such as intervening events in the causation analysis. Indeed, in

the Speegle case, the ARB specifically remanded the case back to the ALJ upon

finding that the ALJ improperly looked at the concept of an intervening event in the

context of the “contributing factor” analysis and should have looked at it in the

context of the defendant’s rebuttal under the “clear and convincing” affirmative

defense analytical prong.92

In sum, I would hold that the ALJ did not commit a legal error here. Further,

given his analysis, it seems highly unlikely that the ALJ would find a different

result even under a strict application of the Thorstenson case. This probability is

one which we can legitimately weigh in considering whether a remand is

appropriate.93

Speegle v. Stone & Webster Constr., Inc., ALJ No. 2005-ERA-00006, slip op. at 37-38

(ALJ Jan. 9, 2006) (ALJ holding that there was no causation based, in part, on finding that

Speegle’s profane comment connected to his protected activity “was an intervening event of

significant weight” and that “Respondent reasonably could have terminated Speegle for the

legitimate reason of insubordination arising out of this comment.”); Speegle v. Stone &

Webster Constr., Inc., ARB No. 2011-0029-A, ALJ No. 2005-ERA-00006, slip op. at 10-12

(ARB Jan. 31, 2013) (ARB reversing ALJ upon applying the inextricably intertwined

analysis to hold “there is no evidence of unprofessional conduct or insubordinate conduct by

Speegle that is unrelated to his protected activity,” but remanding to the ALJ to determine

whether the respondent could prove its same-action affirmative defense); Speegle v. Stone &

Webster Constr., Inc., ARB No. 2014-0079, ALJ No. 2005-ERA-00006, slip op. at 6-7 (ARB

Dec. 15, 2014) (ARB affirming the ALJ’s subsequent determination that the respondent

proved it would have terminated Speegle in the absence of his protected activity based on

his profanity and insubordinate conduct).

See Yowell v. Fort Worth W. R.R., ARB No. 2019-0039, ALJ No. 2018-FRS-00009,

slip op. at 9-10 (ARB Feb. 5, 2020) (finding legal error because of application of inextricably

intertwined analysis, but declining to remand because case could be resolved on proper

standards without additional fact-finding); see also Helvering v. Gowran, 302 U.S. 238, 245

(1937) (“In the review of judicial proceedings the rule is settled that if the decision below is

correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a

wrong reason.”); Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006)

(“Accordingly, although we certainly retain our ability to remand where appropriate, we

also retain our ability to affirm an IJ’s’ [Immigration Judge’s] factual findings—including

an adverse credibility determination—despite error, where that analysis is otherwise

supported by substantial evidence and we can state with confidence that the same decision

would be made on remand.”); Dema v. Gonzales, 193 F. App’x 109, 110 (2d Cir. 2006)

(“Although we do not agree with all of the [factual findings], remand is not required because

we can confidently predict that the decision-maker would reach the same conclusion on

remand.”); Fleshman v. West, 138 F.3d 1429, 1433 (Fed. Cir. 1998) (finding that a reviewing

court need not “remand to the agency if it is clear that the agency would have reached the

Moving beyond the argument of a possible legal error committed here by the

ALJ, I believe that substantial evidence supports the ALJ’s factual findings. In this

regard, it is worth reiterating just how deferential the ARB has traditionally seen

its role in reviewing substantial evidence.94

In summary, I would affirm the decision below in that the legal analysis was

within the framework of the Thorstenson case, albeit that the D. & O. here preceded

that case, and that substantial evidence supports the ALJ’s other conclusions.

Further, the ALJ’s reasoning is not in conflict with the Ninth Circuit’s rejection of

“proximate cause,” as it is unclear what the Ninth Circuit intended by rejecting that

phrase, as the Majority Opinion points out. It seems probable that the Ninth Circuit

was rejecting that part of proximate cause case law which requires that a cause be a

“substantial factor,” rather than merely a contributing factor, which would be

contrary to the statutory language governing herein.95 The ALJ here focused on the

concept of an intervening factor, not whether or not the protected conduct was a

“substantial factor.”

I understand that this is a close case, but believe given the delays that have

already characterized the process of the Department of Labor’s consideration of the

complainant’s allegations, simple concepts of equity argue towards bringing this

same ultimate result had it considered the new ground.” (internal quotations and citations

omitted)).

Sharpe v. Supreme Auto Transp., ARB No. 2017-0077, ALJ No. 2016-STA-00073,

slip op. at 5 (ARB Dec. 23, 2019) (“We must uphold an ALJ’s factual finding that is

supported by substantial evidence even if there is also substantial evidence for the other

party, and even if we would justifiably have made a different choice had the matter been

before us de novo.” (internal citations and quotations omitted)); Atkins v. The Salvation

Army, ARB No. 2000-0047, ALJ No. 2000-STA-00019, slip op. at 2 (ARB Dec. 11, 2001)

(“[Substantial evidence] is something less than the weight of the evidence, and the

possibility of drawing two inconsistent conclusions from the evidence does not prevent a

finding from being supported by substantial evidence.”); see also Biestek v. Berryhill, 139

S.Ct. 1148, 1154 (2019) (“The threshold for such evidentiary sufficiency [substantial

evidence] is not high. . . . It means—and means only—such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” (internal citations and

quotations omitted)); Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013)

(unpublished) (“It may well be that reasonable minds would disagree as to [the finding], but

it is clear from the record that the ALJ . . . simply reached a conclusion, supported by

substantial evidence . . . .”).

See McBride, 564 U.S. at 696. McBride provides a detailed discussion by the

Supreme Court about proximate cause and why a test requiring a factor to be a

“substantial” cause of harm is too high a burden in the context of the Federal Employer’s

Liability Act. The 5-4 decision provides a useful template against which much of these

issues can be measured.

case to closure rather than remanding it for refinement of the opinion with the

references to “inextricably intertwined” excised. Indeed, I believe that such

refinement could have been done in an affirmance, eliminating further procedural

complexities. The ALJ determined that certain remedies were appropriate for

Complainant and it is time to no longer suspend those remedies.

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.