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Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

In the Matter of:

STEVE BROUGH,

COMPLAINANT,

ARB CASE NO.

2016-0089

ALJ CASE NO.

2014-FRS-00103

DATE: June 12, 2019

BNSF RAILWAY COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

James P. Carey, Esq.; Lamb & Carey; Helena, Montana

For the Respondent:

Paul S. Balanon, Esq. and Jacob E. Godard, Esq.; BNSF Railway

Company; Fort Worth, Texas; Bryan P. Neal, Esq. and Stephen F.,

Fink, Esq.; Thompson & Knight LLP; Dallas, Texas

Before: William T. Barto, Chief Administrative Appeals Judge; James A.

Haynes and Daniel T. Gresh, Administrative Appeals Judges

FINAL DECISION AND ORDER

DANIEL T. GRESH, Administrative Appeals Judge: Complainant Steve Brough

filed a complaint under the whistleblower protection provisions of the Federal Rail

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Safety Act (FRSA) 1 alleging that the BNSF Railway Company, the Respondent,

fired him for reporting a work injury. After a hearing, an Administrative Law Judge

(ALJ) concluded that BNSF violated the FRSA and awarded Complainant back pay

and damages. BNSF appealed to the Administrative Review Board (ARB or Board).

For the following reasons, the Board affirms the ALJ’s decision.

BACKGROUND 2

Brough worked at BNSF’s Havre, Montana diesel locomotive service shop

starting in May 1972. Through the years he worked as a crane operator, electrician

helper, hostler, 3 and hostler’s helper and trained co-workers in these positions. On

February 21, 2011, Brough came in to work overtime prior to his regular 3:00 p.m.

shift and was assigned to clear accumulated snow from pathways, parking lots, and

walkways between the tracks in the shop yard, using a tractor with an enclosed cab

and a sweeper attachment in front.

Brough was sitting in the cab wearing required ear protection when he

noticed train movement on track six. He stopped and waited until the hostler helper

waved him across the track and then began clearing snow between tracks four and

five to open up the pathways. He saw two connected locomotives on track five but

they were stationary and seemed empty. Brough continued sweeping past the

locomotives, which “fouled the tracks,” 4 and began to turn to his left when the

locomotives hit his tractor on the right rear side, flipped it around 180 degrees,

49 U.S.C. § 20109 (2008), as implemented at 29 C.F.R. Part 1982 (2018) and 29

C.F.R. Part 18, Subpart A (2018).

The ALJ fully detailed the mostly undisputed facts and the parties’ twenty-four

stipulations, and determined the credibility of the witnesses. Decision and Order (D. & O.)

at 2-40.

A hostler operates a locomotive in the service yard, and a helper stands on the steps

alongside the driver’s side to watch out for anything on the track as the hostler moves the

train into the shed for service. Hearing Transcript (TR) at 29-30.

“Fouling a track” is defined under a Federal Railroad Administration regulation at

49 C.F.R. § 220.5 (2018) to “mean[] the placement of an individual in such proximity to a

track that the individual could be struck by a moving train or other on-track equipment, or

in any case is within four feet of the nearest rail.”

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wedged it between the tracks, and blew the two right-side tires, denting the steel

tire rims.

Wes Anderson was a foreman in charge of all locomotive movement in the

yard. He and general foreman Paul McLeod arrived at the scene and investigated.

Anderson took statements from Brough, and hostler Nick McLean and his helper,

Joseph Hofer, who were moving the locomotives into the service shop, and sent all

three men for drug testing. Afterward, Brough worked his regular shift. 5

Foreman McLeod prepared an investigative report that characterized the

accident as an “obstruction incident,” in which Brough fouled the track with the

tractor while clearing snow and was struck by the locomotive, damaging both pieces

of equipment. 6 Superintendent Beau Price decided to hold investigatory hearings

for Brough alone and Hofer and McLean together because they belonged to different

working groups. McLeod sent all three notices of a hearing; the notices were worded

differently in describing whether the locomotives struck the tractor or the tractor

struck the locomotive, but charged each employee with a violation of BNSF’s

Mechanical Safety Rule S-1.2.3 (being alert and attentive on duty). 7

Superintendent Price conducted the investigatory hearing on March 29,

2011. 8 Foreman McLeod testified about his investigation and conclusion that

Brough was at fault because he had fouled the tracks. Mechanic Robert Pitkanen,

who witnessed the accident from his locomotive cab about sixty feet away, testified

that Brough was ahead of the locomotives when they started moving and that a

properly-positioned hostler’s helper would have seen the tractor. 9 McLeod agreed

with Price that Brough should have seen the locomotives moving but then admitted

that the hostler helper (Hofer) “might probably should have seen” the tractor which

Respondent’s Exhibit (RX) B.

Complainant’s Exhibit (CX) 8; see CX 3, 11; RX D, E.

CX 1, 4, 5.

RX D.

RX C; CX 2 at 10-26, 33-51.

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the locomotives struck from behind. Hofer testified that he had not seen the tractor

but agreed that the locomotives were moving when they hit the tractor. 10

Brough testified that he never had any reportable injuries during his career

with BNSF, but that the neck and back pain he had suffered with prior to the

accident—none of which were due to reportable injuries—had gotten progressively

worse since the accident and he was having more headaches; he was still hoping,

however, that his stiffness and soreness “would go away and there would be no

injuries.” Later, Brough was upset about the conduct of the hearing and

complained to Anderson that the hearing was a “joke” with “rehearsed statements”

and a “doctored video.” 11

Earlier in March, after the collision but before the investigatory hearing,

Brough had seen a chiropractor twice for adjustments to his neck and back.

However, his neck and back pain and headaches were not going away as he had

hoped, so Brough then consulted his physician, Dr. Bruce Richardson, who

examined him on Thursday, April 14, 2011. X-rays showed severe degenerative disc

disease in Brough’s cervical and lumbar spine with facet arthroplasty and foraminal

narrowing. Dr. Richardson diagnosed cervical and lumbosacral strain with

myospasm and associated headaches due to the accident. 12

Meanwhile, Superintendent Price reviewed the evidence and testimony from

the investigatory hearing and decided that Brough was at fault because he had

fouled the track and failed to be alert and attentive when putting himself in front of

a moving locomotive. Price determined that Hofer and McLean were not at fault

because they could not have seen Brough. Price assessed Brough with a serious

Level-S violation under BNSF’s Policy for Employee Performance Accountability

due to the resulting damage and was put on probation for one year. 13

Id. at 123-31, 133-41.

Id. at 147, 174-75; TR at 218-19.

CX 28. With his doctor’s diagnosis, Brough decided he had an obligation to report his

injury, which he hadn’t wanted to do because he knew doing so would upset his superiors as

it would interfere with their injury and safety records. TR at 176-77. See CX 29-30.

RX D, TR at 464-70.

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On Tuesday, April 19, 2011, McLeod called Brough and his union

representative to his office to have Brough sign the letter imposing the Level-S

penalty. After Brough expressed his misgiving that his signing could be taken as an

admission of any wrongdoing, McLeod stated that his signature was not

necessary. 14 Brough then informed McLeod of his visit with his doctor and

completed an employee injury report in which he stated that he had been hurt in

the collision on February 21, first noticed some symptoms afterwards, visited a

chiropractor twice, and had mentioned to Anderson “on at least two occasions of

having a sore neck.” 15

Because Brough claimed in his report that he had informed Anderson of

having a sore neck, McLeod asked Anderson to prepare a statement about what

Brough had said to him on February 21, 2011, after the accident, and afterwards. 16

Anderson’s statement indicated that after the February accident, he had asked

Brough several times at the shift briefing if he was okay and Brough replied, “I’m

fine.” But at one point when Anderson informed Brough’s co-workers that Brough

wasn’t hurt, Brough grabbed his neck and said, “I don’t know about that.” 17

McLeod informed Price in an e-mail that Brough had refused to sign his disciplinary

letter, had reported an injury occurring on February 21, and claimed he had told

Anderson several times about being stiff and sore, which Anderson denied. McLeod

forwarded this e-mail to chief mechanical officer Brandon Mabry, who instructed

McLeod to draft an investigation letter to be given to Brough alleging that he was

insubordinate for refusing to sign the disciplinary letter, falsely stating that he had

informed Anderson earlier about his injury, and failing to comply with safety rules

and to report his injuries promptly. Mabry copied his instructions to McLeod on to

Superintendent Price, Joseph Ryan Heenan, labor relations director, and Chris

TR at 181. The previous day when Price asked Brough to sign the penalty letter he

became “visibly upset and agitated,” refused to sign without a union representative, and

told Price that BNSF managers “probably weren’t going to like the results” or “what he was

going to do next.” CX 56, RX F; TR at 179, 475.

CX 15, 19, 37, 66.

TR at 428-430.

CX 38-39, TR at 428-32.

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Roberts, vice president of mechanical operations, while also stating, “I would like to

pursue dismissal.” 18

Meanwhile, McLeod had Brough escorted off the railroad’s property because

he had not signed the disciplinary letter, and BNSF set an investigatory hearing for

these new offenses to be held on May 11, 2011. 19

At this hearing, Price testified first, recounting how he believed Brough had

violated the safety rules. McLeod testified about the events on April 19 and

reiterated that Brough told him he had reported his neck stiffness and soreness to

Anderson, who denied that Brough had reported any injury. Anderson followed with

his account of the accident on February 21 and Brough’s comment made at the shift

briefing while grabbing his neck, which Anderson thought was made in jest.

Machinist Lowell Alcock testified, recalling Brough’s comments on the day of the

accident and again a few days later that he felt stiff and sore. Union representative

Kuntz testified that Brough told him on February 21 that he felt stiff and sore;

Kuntz asked Brough if he had told anyone, and Brough said he had told Anderson.

Finally, Brough testified, explaining that he had informed Anderson at least twice

that his neck and back were sore and felt that Anderson should have given him

forms to complete an injury report. McLeod testified that Brough stated that he

waited to report his injury until April 19 because “he thought the outcome of the . . .

investigation would have been different and . . . it would bring [matters] to a head”

as he believed the “investigation was a conspiracy.” 20

On May 20, 2011, hearing officer and Foreman Mike Collier e-mailed his

conclusions to Price, Mabry, and Heenan, finding that Brough admitted violating

BNSF’s Mechanical Safety Rule 28.2.5 “Reporting – Injuries to Employees” by not

filing a written report of his injury and not notifying management of his medical

treatment and also therefore Rule 33 of the collective bargaining agreement

between BNSF and Complainant‘s union, which requires injury reporting to be

written; further, the “dishonest reason” Brough reported his injury late was because

CX 24.

RX H, CX 23; TR at 182.

CX 22 at 33-34.

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he believed the investigation was a conspiracy to blame him for the accident, and he

wanted to bring the matter to a head. 21

On May 25, 2011 BNSF fired Brough for violating BNSF’s Mechanical Safety

Rules 28.2.5 (reporting injuries) and 28.6 (conduct). The dismissal letter stated that

Brough had failed to report a personal injury in a timely manner to the proper

manager on February 21, 2011 and was dishonest and immoral in reporting an

injury on April 19. 22

Brough filed a timely complaint with the Department of Labor’s Occupational

Safety and Health Administration (OSHA) on June 13, 2011, alleging that BNSF

fired him in retaliation for reporting a work injury. After an investigation, OSHA

determined on April 22, 2014 that BNSF had not violated the FRSA. 23 Brough

objected and timely requested a hearing, which was held in on November 13-14,

2014.

The ALJ concluded that Brough engaged in protected activity when he

participated in the investigation of the accident that occurred on February 21, 2011,

and when he reported his injury on April 19, 2011, and found that BNSF and the

relevant decision-makers at BNSF had knowledge of his protected activities. 24 The

ALJ further noted that the parties stipulated that BNSF took adverse action

against Brough when he was disciplined on April 18, 2011, after the investigation of

the February 21, 2011 accident, and when he was terminated on May 25, 2011. 25

Next, while the ALJ found that Brough did not establish that his protected activity

was a contributory factor in his discipline on April 18, 2011, the ALJ concluded that

because his subsequent termination on May 25, 2011, was inextricably intertwined

with his protected activity, his protected activity was necessarily a contributory

factor in his termination. 26 Finally, the ALJ found the evidence insufficient to

CX 57, RX W; see CX 58, RX J.

CX 25, RX U.

RX S, CX 5.

D. & O. at 42, 49.

Id. at 50.

Id. at 61-64.

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establish by clear and convincing evidence that Brough’s termination would have

occurred absent his protected activity of filing his injury report and, therefore,

BNSF failed to sustain its affirmative defense. 27 Thus, the ALJ concluded that

BNSF violated the FRSA and awarded Brough $79,170.51 in back pay less

retirement benefits, $29,900.00 in compensation for emotional distress and

expenses, and $75,000.00 in punitive damages. 28 He also ordered expungement of

the record of Brough’s discharge. BNSF appealed to the ARB.

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. 29 The ARB

reviews the ALJ’s conclusions of law de novo. 30 We will affirm the ALJ’s factual

findings as long as they are supported by substantial evidence. 31 We generally

defer to an ALJ’s credibility findings unless they are “inherently incredible or

patently unreasonable.” 32

DISCUSSION

The FRSA prohibits a railroad carrier engaged in interstate commerce or its

officers or employees from discharging, demoting, suspending, reprimanding, or in

Id.at 84.

The FRSA provides for payment of punitive damages up to $250,000.00. 49 U.S.C.

§ 20109(e)(3), 29 C.F.R. § 1982.105(a)(1).

Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 84 Fed. Reg. 13072 (Apr. 3, 2019); 29

C.F.R. § 24.110(a).

Kruse v. Norfolk S. Ry. Co., ARB Nos 12-081, 106 ALJ No. 2011-FRS-022, slip op. at

3 (ARB Jan. 28, 2014).

29 C.F.R. § 1982.110(b).

Mizusawa v. United Parcel Serv., ARB No. 11-009, ALJ No. 2010-AIR-011, slip op. at

3 (ARB June 15, 2012).

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any other way retaliating against an employee because the employee engages in any

of the protected activities identified under 49 U.S.C. § 20109(a).

Under the FRSA, a complainant must establish the following facts by a

preponderance of the evidence: (1) he engaged in a protected activity as statutorily

defined; (2) he suffered an unfavorable personnel action; (3) and the protected

activity was a contributing factor in the unfavorable personnel action. 33 If a

complainant meets his burden of proof, the employer 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 the complainant’s protected

activity. 34

Initially, we affirm as unchallenged on appeal the ALJ’s conclusions that

Brough engaged in protected activity under subsections 20109(a)(1)(C) and (a)(4)

when he participated in the March 30, 2011 investigation of the accident and when

he reported his injury on April 19, 2011. Also, the parties stipulated that Brough’s

thirty-day suspension and one-year probation imposed on April 18 and his dismissal

imposed on May 25, 2011 were adverse actions. 35

On appeal, BNSF challenges the ALJ’s decision about contributory causation.

In addition, BNSF contends that the ALJ erred in rejecting its affirmative defense

that it would have fired Brough absent any of his protected activity. Finally, BNSF

contests the ALJ’s order of the expungement of Brough’s discipline from his

employment records, and her award to Brough of both punitive damages and back

pay. 36

49 U.S.C. §§ 20109(d)(2)(A)(i), 42121(b)(2)(B)(iii)-(iv).

49 U.S.C. § 42121(b)(2)(B)(iv); see Bruckner v. BNSF Ry. Co., ARB No. 14-071, ALJ

No. 2013-FRS-070, slip op. at 7 (ARB Jul. 29, 2016); Hamilton v. CSX Trans., Inc., ARB

No.; 12-022, ALJ No. 2010-FRS-025, slip op. at 2 (ARB Apr. 30, 2015).

D. & O. at 5.

BNSF’s Brief at 1-4.

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The ALJ’s determination that Brough’s protected activity was a contributory factor

in his termination is supported by substantial evidence

The ALJ determined that BNSF terminated Brough on May 25, 2011, for his

untimely reporting of his injury on February 21, 2011, in violation of BNSF’s own

reporting rule, and for his dishonest and immoral conduct when he ultimately did so

on April 19, 2011. 37 Notwithstanding BNSF’s stated reason for Brough’s

termination, the ALJ found that Brough’s injury report and his termination were

“inextricably intertwined” since his protected activity of reporting his injury was the

underlying act supporting BNSF’s justification for his termination. Thus, the ALJ

concluded that Brough established that his protected activity was a contributory

factor in his termination as a matter of law. 38

BNSF initially urges the Board to reverse the ALJ’s decision on contributory

causation because it argues that under the FRSA, a complainant must prove that

an employer’s intentional discriminatory animus against the complainant’s

protected activity, and not merely the complainant’s protected activity alone, is a

contributing factor in an employer’s adverse action. However, for the reasons the

Board has repeatedly stated in its previous decisions, we decline to hold that an

employee must prove a separate discriminatory or retaliatory animus, motivation or

intent in order to establish that his protected activity was a contributing factor to

the adverse employment action alleged in the complaint. 39 Proof of the causal

relationship between the protected activity and the adverse action is sufficient to

establish any discriminatory intent that the statutory text implicitly requires.

D. & O. at 61.

D.& O. at 62-64 citing DeFrancesco v. Union Pac. R.R. Co., ARB No. 13-057, ALJ

No. 2009-FRS-009, slip op. at 5 (ARB Sept. 30, 2015) (DeFrancesco II), citing DeFrancesco I

(when the manner of the protected activity provides the grounds for the adverse action,

contribution is shown as a matter of law). See also Cain v. BNSF Ry. Co., ARB No. 13-006,

ALJ No. 2012-FRS-019, slip op. at 6 (ARB Sept. 18, 2014).

See Rathburn v. The Belt Ry. Co. of Chi., ARB No. 16-036, ALJ No. 2014-FRS-035,

slip op. at 8, n.42 (ARB Dec. 8, 2017); Menendez v. Haliburton, Inc., ARB No. 12-026, ALJ

No. 2007- SOX-005, slip op. at 9 (ARB Mar. 15, 2013), aff'd sub nom, Halliburton, Inc. v.

Admin. Review Bd., 771 F.3d 254, 263 (5th Cir. 2014); Smith v. Duke Energy Carolinas,

LLC, ARB No. 11-003, ALJ No. 2009-ERA-007, slip op. 7-9 (ARB June 20, 2012).

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BNSF further asserts that courts have rejected the inextricably-intertwined

theory of contributory causation. Under facts similar to those in this case, in BNSF

Ry. Co. v. USDOL (Cain), 40 an employee’s late reporting of his injury resulted in

discipline for not reporting that he had received medical treatment. The United

States Court of Appeals for the Tenth Circuit held that an employee cannot

immunize himself against discipline for wrong-doing simply by disclosing his injury

as part of his protected activity. The court required the employee to show more to

establish causation than the simple fact that his injury report led to his discharge.

Because the ALJ in that case relied on other factors, such as temporal proximity

and the employee’s credibility, the court affirmed the ALJ’s conclusion that the

employee’s filing of his injury report was a contributing factor in the decision to fire

him as it was supported by substantial evidence. 41

In this case, the ALJ had also received evidence concerning other relevant

factors: the particular circumstances of the injury itself, Mabry’s negative reaction

to the late injury report, Brough’s removal from his work station on April 18 for

refusing to sign the disciplinary report which did not require a signature, the

allusions to disciplinary action during BNSF’s cross-examination of Brough’s

witnesses at the investigatory hearing, the immoral conduct charge based on no

“clear contradiction” between Brough’s and Anderson’s account of an “injury,” the

“troubling shift” in charges from reporting an injury “too late” to “not reporting” an

injury, and a perceived “culture of hostility” at BNSF to injury reporting. 42

Regardless of whether Brough’s report of his injury was untimely, Brough

reported his injury. The ALJ found credible Brough’s assertions that he was

reluctant to report a work injury, he wanted the injury to go away as his other

previous aches and pains had, and he went to a chiropractor to try to achieve that

end. When that treatment didn’t get the results he desired, he went to a physician

who diagnosed his resultant work injury. Brough then reported his injury, which

contributed to his termination.

816 F.3d 628, 639 (10th Cir. 2016), citing Marano v. Dept. of Justice, 2 F.3d 1137

(Fed. Cir. 1993).

Id. at 639-640.

See D. & O. at 20, 31, 35, 62, 73, 76, 81-82, 83-84, 95-96.

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After a review of the record, we conclude that substantial evidence supports

the ALJ’s findings of fact and her legal conclusions are in accord with the FRSA.

Thus, the ALJ’s determination that Brough’s protected activity was a contributory

factor in his termination is affirmed. Consequently, BNSF must now prove that it

would have taken the same action even if Brough had not reported his injury.

BNSF has failed to prove its affirmative defense

BNSF provided three reasons before the ALJ for terminating Brough:

Brough’s dishonesty in initially reporting the condition of his neck to Anderson, the

late reporting or failure to report his injury, and Brough’s immoral conduct in

reporting his alleged injury in retaliation for BNSF’s previously disciplining

Brough. On appeal, BNSF argues that the ALJ erred in failing to accept its

affirmative defense based on its comparative evidence that the “vast majority” of its

employees who reported injuries were not disciplined and that other employees had

been disciplined for conduct similar to Brough’s. While BNSF admits that the ALJ

properly considered this comparative evidence, it relies on its previous arguments

against contributory causation to contend that it would have fired Brough even

absent his protected activity.

The affirmative defense requires the employer to prove with clear and

convincing evidence that absent the protected activity it would have taken the same

adverse action. The ALJ found the comparative evidence BNSF offered to be

insufficient to meet this standard. Specifically, while Heenan, a BNSF manager,

claimed to have reviewed other BNSF cases similar to Brough’s involving

dishonesty that resulted in dismissal, the ALJ reached the following conclusions

about Heenan’s testimony: 1) Heenan‘s “generalized reflections based on an

unspecified review of cases” were insufficient to carry BNSF‘s burden; 2) the

putative comparators’ dishonesty did not compare to Brough’s alleged dishonesty in

reporting the condition of his neck to Anderson, as dishonesty requires an intent to

deceive as opposed to being merely wrong in the characterization of one’s condition;

and 3) “the dishonesty charge was neither substantiated nor crucial in the decisionmaking process” to fire Brough, 43 In addition, while it was Mabry’s and the other

BNSF managers’ perception that Brough had reported his injury in retaliation for

BNSF imposing discipline on him after the February 2011 collision, the ALJ instead

found that BNSF would have fired any employee whom it perceived to be retaliating

D. & O. at 74-75.

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against the company. 44 “Rather than showing that [BNSF] would have acted in the

same way absent the protected activity, the reaction of BNSF managers who

perceived hostility and retaliation against them by [Brough’s] actions demonstrates

the opposite, the protected activity itself is the driving force of the discipline

because that is what it deems hostile and retaliatory against it.” 45

Moreover, absent Brough’s protected activity in this case, which was his

injury report on April 19, 2011, BNSF would not have known about Borough’s

chiropractic visits, his subsequent medical treatment, and his late injury reporting,

and consequently BNSF’s stated reasons to fire him would not have existed. Thus,

because substantial evidence supports the ALJ’s finding that BNSF failed to

establish by clear and convincing evidence that Brough would have been terminated

absent his protected activity, the ALJ’s finding that BNSF failed to sustain its

affirmative defense is affirmed.

The ALJ properly awarded back pay and ordered expungement, but erred in

awarding punitive damages

Based on its arguments on the merits, BNSF objects to any award of back

pay or punitive damages and expungement of Brough’s discharge. BNSF argues

that (1) back pay cannot be awarded because Brough withdrew from the workplace,

(2) punitive damages are not permitted because the ALJ found that BNSF had no

intent to discriminate against Brough, and (3) the FRSA does not authorize

expungement. 46

First, BNSF argues that an employee’s deliberate withdrawal from the

employment market constitutes failure to mitigate damages. 47 BNSF avers that the

D. & O. at 82-83.

D. & O. at 83-84.

BNSF Brief at 20-23. As BNSF does not specifically contest the ALJ’s award of

$29,000.00 of compensatory damages for out-of-pocket expenses and emotional distress, D.

& O. at 99, the ALJ’s determination is affirmed.

See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1527 (11th Circ. 1991); Sellers v.

Delgado Community College, 902 F.2d 1189, 1193 (5th Cir. 1990). Both cases involved

complaints under Title VII of the Civil Rights Act of 1964. Under both statutes, the burden

is on the employer to prove that substantially equivalent jobs were available.

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statute does not permit an employee to recover from his or her employer wage

“losses” that the employee deliberately self-inflicted. 48

The ALJ awarded back pay from January 2, 2013, when Brough’s physician

pronounced him fit to return to work, until June 2, 2014, when Brough chose to

retire. 49 The ALJ ordered BNSF to pay Brough $74,962.97, minus any retirement

benefits he received from November 1, 2013, until June 2, 2014, the exact amounts

for the parties to determine. 50

A wrongfully-discharged employee seeking back pay has a duty to exercise

reasonable diligence to mitigate his damages by searching for substantially

equivalent work. 51 However, the employer must prove that its employee failed to

mitigate by submitting evidence that would establish that substantially equivalent

positions were available and that the employee failed to attempt diligently to secure

such positions. 52

BNSF submitted no evidence of available comparable jobs for any of the

times during which Brough was not working; thus, the ALJ was unable to decide

whether mitigation was possible and to determine a suitable amount of back pay.

BNSF instead relied solely on Brough’s admission that he did not look for a

comparable job during these times.

BNSF Brief at 23. Contrary to BNSF’s assertion, the ARB did not “reject” the

mitigation rule in Roberts v. Marshall Durbin Co., ARB Nos. 03-071, -095; ALJ No. 2002STA-035, slip op. at 17-18 (ARB Aug. 6, 2004). Rather, the ARB applied the rule and

awarded appropriate back pay based on the facts of that case.

TR at 194-95, 241-42. This was after the Public Law Board decided Brough’s appeal

in his favor, reinstated him, but declined to award back pay and imposed a year-long

probation on top of his previous Level-S violation

D. & O. at 86-88, 99.

Williams, ARB Nos. 14-091, 15-008, citing Dale v. Step 1 Stairworks, Inc., ARB No.

04-003, ALJ No. 2002-STA-030, slip op. at 6-7 (ARB Mar. 31, 2005). See 49 U.S.C.

§ 20109(e); 29 C.F.R. § 1982.105(a)(1).

Anderson v. Timex Logistics, ARB No. 13-016, ALJ No. 2012-STA-011, slip op. at 7

(ARB Apr. 30, 2014)..

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Brough testified that the last facet injections for his neck pain occurred

around January 2013 and that he could have returned to work in some fashion at

that point. But he added that the Public Law Board’s stipulation of probation and

no back pay, along with his feeling that he “would be walking around with a target

on my back,” prompted him to retire “rather than take a chance on being fired

again.” 53 Further, when Dr. Richardson diagnosed his work injury in 2011, Dr.

Richardson stated that Brough was not expected to return to work until 2016.

Subsequently, another physician certified to the Railroad Retirement Board that

Brough was unable to return to work until December 2012. 54 Because BNSF failed

to meet its burden of proof and the ALJ thoroughly discussed the reasons for her

award of back pay, we affirm the ALJ’s award as supported by substantial evidence.

However, we agree with BNSF’s contention that the ALJ erred in awarding

punitive damages 55 because of the ALJ’s unchallenged finding that BNSF did not

intentionally discriminate or violate the FRSA. 56 A punitive damages award is

warranted “where there has been ‘reckless or callous disregard for the plaintiff’s

rights, as well as intentional violations of federal law.” 57 Gross or reckless

indifference to the law can establish the intentional component needed for

willfulness. 58 An employer may avoid punitive damages when it has made a goodfaith effort to comply with the law. 59

The size of a punitive damages award is fundamentally a fact-based

determination driven by the circumstances of the case, so the Board is bound by the

TR at 191-92, 94-95, 243-46.

CX 28-29, TR at 243-46, 258-60.

See 49 U.S.C. § 20109(e)(3).

BNSF’s Brief at 20-21.

Ferguson v. New Prime, Inc., ARB No. 10-075, ALJ No. 2009-STA-047, slip op. at 8

(ARB Aug. 31, 2011), citing Smith v. Wade, 461 U.S. 30, 51 (1983).

Beatty v. Celadon Trucking Servs., Inc, ARB Nos. 15-085, 15-086, ALJ No. 2015STA-010, slip op. at 12 (ARB Dec. 8, 2017).

D’Hooge v. BNSF Rys., ARB Nos. 15-042, 15-066; ALJ No. 2014-FRS-002, slip op. at

11 (ARB Apr. 25, 2017).

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ALJ’s findings if they are supported by substantial evidence on the record

considered as a whole. 60 But neither the FRSA nor its implementing regulations

specify the standard of review of an ALJ’s conclusion, following a hearing, as to

whether a punitive damages award is warranted in the first instance. The

Administrative Procedure Act (APA), 5 U.S.C. § 553 et seq. (1966), states the

standard of review when the subordinate official, such as the ALJ in this case,

conducts a formal APA hearing. 61 Specifically, Section 557(b) of the APA provides,

in relevant part:

(a) This section applies, according to the provisions

thereof, when a hearing is required to be conducted in

accordance with section 556 of this title.[62]

(b) When the agency did not preside at the reception of

the evidence, the presiding employee [. . .] shall initially

decide the case [. . .]. When the presiding employee makes

an initial decision, that decision then becomes the

decision of the agency without further proceedings unless

there is an appeal to, or review on motion of, the agency

within time provided by rule. On appeal from or review of

the initial decision, the agency has all the powers which it

would have in making the initial decision except as it may

limit the issues on notice or by rule.

Beatty, ARB Nos. 15-085, 15-086, slip op. at 12, citing Cooper Indus. v. Leatherman

Tool Grp., 532 U.S. 424, 435 (2001).

In regard to hearings conducted in cases involving retaliation complaints under the

FRSA, 29 C.F.R. § 1982.107(a) provides that “proceedings will be conducted in accordance

with the rules of practice and procedure for administrative hearings before the Office of

Administrative Law Judges, codified at subpart A of part 18 of this title.” In turn, the rules

of practice and procedure for administrative hearings before the Office of Administrative

Law Judges, codified at subpart A of part 18 of title 29, provides at 29 C.F.R. 18.12(b) that

“[i]n all proceedings under this part, the judge has all powers necessary to conduct fair and

impartial proceedings, including those described in the Administrative Procedure Act, 5

U.S.C. 556.”

Section 556 describes requirements for formal APA hearings.

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(emphasis added). The Attorney General's Manual on the Administrative Procedure

Act (1947) provides that, in reviewing an initial or recommended decision of a

subordinate officer, “the agency is in no way bound by the decision of its

subordinate officer; it retains complete freedom of decision — as though it had

heard the evidence itself.” “Thus, if the initial decision had been made by an ALJ . .

. following a formal evidentiary hearing, and the governing statute or regulation did

not specify the standard of review, the standard of review by the final agency

decision maker would be de novo pursuant to the APA's default standard of review

at Section 557(b). 63 Consequently, we conclude that the Board exercises de novo

review of an ALJ’s determination, following a hearing, as to whether a punitive

damages award is warranted.

In considering the imposition of punitive damages, the ALJ stated that after

“reviewing the managers’ decisions and acts in this case, I find no intentional

violation of the FRSA.” 64 Indeed, the ALJ credited the managers’ belief that they

were punishing unprotected misconduct. 65 As the ALJ’s finding that BNSF did not

intentionally violate the FRSA is supported by substantial evidence, the ALJ’s

conclusion of law that a punitive damages award is warranted in this case is

reversed. 66

Finally, 49 U.S.C. § 20109(e)(1) provides that “[a]n employee prevailing in

any action under” the FRSA’s whistleblower provisions “shall be entitled to all relief

necessary to make the employee whole.” BNSF argues that while the ALJ correctly

characterized his order of the expungement of the record of Brough’s discharge as

equitable relief, other federal statutes authorizing such relief include that specific

remedy or they order some other affirmative action, whereas subsection 20109(e)(1)

does neither. BNSF asserts that “make whole” language in a statute generally

refers to economic damages that would place the injured party back in the position

he or she would have been absent the fault of another. Moreover, BNSF contends

Albert Einstein Med. Ctr., BALCA No. 2009-PER-00379, slip op. at 29 (BALCA Nov.

21, 2011) (en banc).

D. & O. at 95.

Id.

Ferguson, ARB No. 10-075, slip op. at 8, citing Smith, 461 U.S. at 51.

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that the FRSA’s implementing regulations cannot confer jurisdiction upon the ALJ

to order “appropriate affirmative action to make the employee whole” that the

FRSA itself does not mandate. 67

The ALJ noted that subsection 20109(e)(1) does not specifically list

expungement as a remedy, but that subsection 20109(e)(1)’s directive is for “all

relief necessary to make the employee whole.” The ALJ found that expungement of

the May 25, 2011, discharge was appropriate because she had concluded that BNSF

violated the FRSA only due to that action. 68 Brough contends that “make whole”

relief encompasses cleansing his personnel record of the action that violated the

FRSA so that his near-40 years of work history does not reveal BNSF’s unlawful

discharge. 69

We note, however, that it may be futile to order an employer to “expunge”

information which other laws may require the employer to maintain. Because

businesses may not be able to legally destroy company or corporate records, ALJs

should be cautious and specific when ordering an employer to “expunge”

information from an employee’s personnel record. Where an ALJ finds it necessary

to order an employer to disregard certain information which had been placed in an

employee’s personnel record, it would be more realistic, for example, for the ALJ to

require that the information be placed in a sealed and/or restricted subfolder or that

the employer be specifically prohibited from relying on the information in future

personnel actions or referencing it to prospective employers. Thus, we affirm the

ALJ’s order that BNSF expunge any employment records referencing Brough’s

discipline issued on May 25, 2011, 70 but modify her order to require that the

information be placed in a sealed and/or restricted access subfolder and that the

BNSF’s Brief at 21-22. See 29 C.F.R. §§ 1982.109(d)(1), 1982.110(d) (order relief,

including, “where appropriate: Affirmative action to abate the violation”). Brough’s counsel

sought the expungement of the record of Brough’s discharge at the hearing. TR at 22-23.

D. & O. at 85-86. See Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998STA-8, slip op. at 14 (ARB July 28, 1999) (the “ALJ fashioned relief in keeping with the

statutory directive to abate the violation” when “[h]e ordered [the employer] to expunge

from its personnel files and records system” warning letters and any notice of suspension of

the complainant).

Brough’s Brief at 29.

See Scott, ARB No. 99-013, slip op. at 14.

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employer be specifically prohibited from relying on the information in future

personnel actions or referencing it to prospective employers.

CONCLUSION

Accordingly, the ALJ’s decision concluding that Respondent violated the

FRSA and order granting appropriate relief is AFFIRMED, with modifications as

noted above, but that portion of the ALJ’s order awarding punitive damages is

REVERSED.

SO ORDERED.

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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.