U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

In the Matter of:

STEPHEN THORSTENSON,

COMPLAINANT,

v.

ARB CASE NOS. 2018-0059

2018-0060

ALJ CASE NO. 2015-FRS-00052

DATE: November 25, 2019

BNSF RAILWAY COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Paul Bovarnick, Esq.; Rose Senders & Bovarnick LLC; Portland

Oregon and Shenoa L. Payne, Esq.; Richardson Wright LLP; Portland,

Oregon

For the Respondent:

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

Washington, D.C.

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

Haynes, Thomas H. Burrell, and Heather C. Leslie, Administrative Appeals

Judges

FINAL DECISION AND ORDER

PER CURIAM. The Complainant, Stephen Thorstenson, filed a retaliation

complaint under the employee protection provision of the Federal Rail Safety Act of

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1982 (FRSA), as amended, 1 with the Department of Labor’s Occupational Safety

and Health Administration (OSHA). Thorstenson alleged that he was a victim of

retaliation by BNSF (Respondent), his employer, for reporting a workplace injury.

OSHA concluded that there was reasonable cause to believe that Respondent

violated the whistleblower provisions of the FRSA and awarded back pay,

compensatory damages and punitive damages, expungement of Complainant’s

employment records, and ordered Respondent to post a Notice to Employees. BNSF

timely objected and requested a hearing before the Office of Administrative Law

Judges (OALJ). The Administrative Law Judge (ALJ) found that Thorstenson

engaged in protected activity and that that activity was a contributing factor in the

discipline he received. The ALJ further found that BNSF established by clear and

convincing evidence that it would have disciplined Thorstenson even if he had not

engaged in protected activity. Both Thorstenson and BNSF appealed the ALJ’s

decision to the Administrative Review Board (ARB or Board). Under the authority

granted by the Secretary of Labor, 2 the Chief Administrative Appeals Judge

directed that this appeal would be decided by the full Board due to the exceptional

importance of the issues presented. For the following reasons, we affirm the ALJ’s

Decision and Order.

BACKGROUND 3

At the relevant time at issue in this case, Thorstenson worked as a conductor

for BNSF in and around Vancouver, Washington. On February 2, 2009, Thorstenson

injured his left knee when he slipped on steps while boarding a train, and he made

a timely report of the injury. D. & O. at 3. He was off work due to the injury for

almost six months. When he returned to work, he still had swelling, stiffness, and

some pain in his knee after he completed work trips, and occasionally saw a doctor

for these symptoms. Thorstenson provided verbal updates to BNSF managers

regarding the condition of his knee. He asked the treating physician to discharge

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).

1

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

Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (April 3, 2019).

2

This background follows the ALJ’s Decision and Order and undisputed facts. In

reciting these background facts, we make no findings of fact.

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him after an appointment on October 20, 2010, and he was able to return to work

without restrictions.

On November 17, 2010, Thorstenson banged his left kneecap against

something metal (a desk onboard the train) and felt pain, but thought that it was

from the injury he sustained in February 2009. On the next day, November 18, he

had more than the usual swelling, stiffness, and pain in his knee. He was not

scheduled to work on November 19 and returned to the orthopedic office where he

saw a physician’s assistant. Thorstenson informed the physician’s assistant that he

had bumped a desk and was afraid that he had aggravated his earlier injury. D. &

O. at 4. The physician’s assistant prescribed pain medication. After returning to

work on November 20 and 21, Thorstenson continued having swelling, stiffness, and

pain and returned to the doctor on November 22, 2010. The doctor drained fluid

from the knee, took x-rays, injected cortisone, and recommended that Thorstenson

remain off work. 4 On November 22, Thorstenson contacted the trainmaster and

filled out an injury report. D. & O. at 4. The ALJ found that Thorstenson reported

the injury to BNSF on November 22, 2010, which was five days after the injury on

November 17, 2010. D. & O. at 4.

On November 24, 2010, BNSF notified Thorstenson that it was investigating

his apparent late report of the workplace injury and would conduct a hearing on

January 21, 2011. Following the hearing, a decision maker, General Manager Doug

Jones, concluded that Thorstenson had violated the rules because he did not report

an injury within 72 hours, and he did not report the injury before going to the

doctor. 5 Jones recommended a Level S or serious violation which resulted in a 30day “record suspension.” 6 Although Thorstenson did not have a history of discipline

On December 6, 2010, Thorstenson returned to the doctor, who diagnosed several

injuries to the knee. Complainant was off work until he recovered from surgery and

returned to full duty on January 17, 2011.

4

D. & O. at 7-8. BNSF follows the General Code of Operating Rules (GCOR). These

rules include a duty to report an injury immediately to the proper manager and submit a

written report. GCOR 1.2.5, RX 5 at 15. In addition, BNSF has a Policy for Employee

Performance Accountability which provides that employees will not be disciplined for late

reporting of muscular-skeletal injuries, as long as the injury is reported within 72 hours of

the probable triggering event. RX 5 at 18.

5

For a “record suspension,” the suspension is noted on the employee’s work history in

his personnel file, but he may work and earn regular wages. This discipline can be imposed

for “Level S” or serious violations.

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within the previous five years, he had reported an injury during that time.

Therefore, Jones imposed a 36-month review period to attach to the Level S

violation and record suspension. D. & O. at 8. At the time in question, the review

period that attaches to a Level S violation for an employee that was “discipline free”

and “injury free” was 12 months. Id.

Thorstenson filed a complaint with OSHA on February 7, 2011, alleging that

the suspension was in retaliation for requesting medical treatment, following the

orders of a treating physician, and for notifying BNSF of a work-related injury. 7

On June 26, 2011, five months after receiving the Level S for late reporting,

Thorstenson was working as a conductor aboard a train. D. & O. at 9. Under BNSF

rules, the engineer and conductor are jointly responsible for the operation of the

train. The conductor’s control of the train’s speed is limited to pulling the emergency

brake and he is required to do this if the maximum authorized speed is exceeded by

five miles an hour or more. At the time of the incident, the train exceeded the 55

miles-per-hour limit for 44 seconds, of which twelve seconds were at 60 mph. The

“alerter system” activated for the last six seconds the train was speeding, and the

engineer moved the throttle down from position eight to position one and then to

idle. D. & O. at 10. About six or seven seconds after the engineer moved the throttle

from position eight to one, Thorstenson noticed that the train was travelling at 60

mph. He pulled the emergency brake. As this can cause the cars to bunch together

and throw people aboard the train forward or backward, he braced himself but

failed to tell the engineer to do the same. The train passed through a crossing

during this incident, but neither Thorstenson nor the engineer sounded the whistle.

D. & O. at 10.

On June 29, 2011, BNSF’s Superintendent of Operations in Vancouver, Chris

Lucero, issued a Notice of Investigation into the incident on June 26, and the

charges against the two employees were heard together. At the investigation

hearing, an expert on event records testified that the train had been slowed to 59

mph at the time Thorstenson pulled the emergency brake, and that Thorstenson

could have read this on his speedometer. The Conducting Officer and Terminal

Manager Michael Cart told Superintendent Lucero that he thought the Company

D. & O. at 9. Subsequently, Complainant elected not to pursue the claim concerning

following the orders of a treating physician. H.Tr. at 13.

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had shown the violation. Lucero concluded that BNSF should dismiss both

Thorstenson and the engineer based solely on this incident (a standalone dismissal),

including the failure to blow the whistle as the train passed through a crossing. D.

& O. at 11. The human resources manager disagreed and advised that it would be

difficult to support a standalone dismissal for the engineer’s case. She recommended

that the June event be treated as a Level S violation for both employees. D. & O. at

12. The General Manager, Johnson, agreed with the H. R. advice and imposed Level

S violations for Thorstenson and the engineer.

However, due to its progressive discipline policy, and Thorstenson’s 36-month

review period imposed in January 2011 for the previous Level S violation, BNSF

terminated his employment. Thorstenson was notified of his discharge on August

30, 2011. On August 31, 2011, Complainant amended his OSHA complaint. He

asserted that he would not have been terminated had he not been previously

disciplined for late-filing of an injury report.

Following a hearing, the ALJ found that Thorstenson established that he

engaged in protected activity by filing an injury report and filing a claim of

retaliation with OSHA. The ALJ found that Thorstenson’s injury report was a

contributing factor in the first Level S violation that he received. However, the ALJ

found that BNSF established its affirmative defense that it disciplined Thorstenson

because his report was late, not because he reported an injury. In addition, the ALJ

found that BNSF established that BNSF would have imposed a second Level S

violation based on Thorstenson’s role in the June 2011 safety incident in the

absence of protected activity. Thus, the ALJ found, based on BNSF’s policy of

progressive discipline, that BNSF would have terminated Thorstenson’s

employment absent the protected injury report or the complaint with OSHA.

Thorstenson appealed the ALJ’s decision to the Administrative Review Board, and

BNSF cross-appealed.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the Administrative Review Board

authority to review ALJ decisions and issue final agency decisions in cases arising

under the FRSA. Secretary’s Order No. 01-2019 (Delegation of Authority and

Assignment of Responsibility to the Administrative Review Board), 84 Fed. Reg.

13,072 (April 3, 2019); 29 C.F.R. § 1982.110(a). The ARB will affirm the ALJ’s

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factual findings if supported by substantial evidence but reviews all conclusions of

law de novo. Austin v. BNSF Ry. Co., ARB No. 17-024, ALJ No. 2016-FRS-013, slip

op. at 7 (ARB Mar. 11, 2019). As the United States Supreme Court has recently

noted, “[t]he threshold for such evidentiary sufficiency is not high.” Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019). 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 support a conclusion.’” Id. (citing and quoting

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

DISCUSSION

The FRSA prohibits a railroad carrier engaged in interstate or foreign

commerce from discharging, demoting, suspending, reprimanding, or in any other

way discriminating against an employee if such discrimination is due, in whole or in

part, to the employee’s lawful, good faith protected activity. 49 U.S.C. §§ 20109(a) &

(b). To prevail, an FRSA complainant must establish the following by a

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

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

activity was a contributing factor, in whole or in part, in the unfavorable personnel

action. If a complainant meets this 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 absent the complainant’s protected activity. 8

1. Thorstenson engaged in protected activity

The parties do not dispute that Thorstenson engaged in protected activity by

filing a report of injury in February 2009 and by filing a report of injury in

November 2010. We affirm these findings as they are unchallenged on appeal. See

Brough v. BNSF Ry. Co., ARB No. 16-089, ALJ No. 2014-FRS-103, slip op. at 5

(ARB June 12, 2019).

On appeal, BNSF contends that the ALJ improperly considered protected

activity that was alleged for the first time in an interrogatory response before the

49 U.S.C. § 20109(d)(2)(A)(i); 49 U.S.C. § 42121(b)(2)(B)(i)(2000); Riley v. Canadian

Pac. R.R. Corp., ARB Nos. 16-010, -052, ALJ No. 2014-FRS-044, slip op. at 4 (ARB Jul. 6,

2018).

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ALJ, specifically the filing of an OSHA whistleblower retaliation claim on February

7, 2011. The ALJ found that Thorstenson had raised the February 2011 OSHA

complaint as protected activity in response to BNSF’s pre-hearing interrogatories,

which was sufficient notice that it would be litigated. D. & O. at 16.

We agree with the ALJ and affirm the ALJ’s decision to amend the pleadings

to conform to the evidence as Respondent has not shown an abuse of discretion. 29

C.F.R. § 18.36 (permitting the ALJ to amend pleadings). As the ALJ noted, BNSF

did not contend that it was prejudiced by or that it was unable to prepare a defense

to the additional claim of protected activity identified in pre-hearing discovery.

2. BNSF imposed several adverse actions on Thorstenson

The parties do not dispute that both BNSF’s imposition of a Level S violation

as a result of the late injury report and its termination of Thorstenson’s

employment following the second Level S violation are adverse employment actions.

We affirm these findings as they are unchallenged on appeal.

BNSF also contends that the ALJ erred in finding that the 36-month review

period and the Notice of Investigation following the November 2010 injury report

were adverse actions. In considering whether an action is adverse, the Board has

referenced the United States Supreme Court’s decision in Burlington Northern &

Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), a case decided under Title VII of the

Civil Rights Act of 1964. 9 In describing the injury or harm alleged as retaliation, the

Court held that: “a plaintiff must show that a reasonable employee would have

found the challenged action materially adverse, “which in this context means it well

might have ‘dissuaded a reasonable worker from making or supporting a charge of

discrimination.’ ” Id at 68. Moreover, the Court held that the significance of any

given act of retaliation will often depend upon the particular circumstances and

context. Id at 69. We affirm the ALJ’s finding that the 36-month review period is an

adverse action as it formed part of Thorstenson’s progressive discipline.

We agree that any alleged adverse action must be considered in context,

including internal investigations and hearings which may result in the imposition

9

42 U.S.C. § 2000e (1977).

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of discipline. See, e.g., Petronio v. Nat’l R.R. Pas. Corp., 2019 WL 4857579 (SDNY

2019) (bringing a disciplinary charge alone, in and of itself, does not automatically

constitute an adverse action, although it can constitute one if such action would

dissuade a reasonable employee from engaging in the protected conduct). However,

given our disposition of this case we need not address Respondent’s specific

arguments regarding whether the Notice of Investigation was an adverse

employment action.

3. The ALJ erred in his contributing factor analysis

To establish a violation under the FRSA, a complainant must show that the

protected activity was a “contributing factor” in the adverse employment action. 49

U.S.C. § 20109(d)(2)(A), referring to 49 U.S.C. § 42121(b)(2)(B)(i). “A ‘contributing

factor’ includes ‘any factor, which alone or in connection with other factors, tends to

affect in any way the outcome of the decision.’” Rookaird v. BNSF Ry. Co., 908 F.3d

451, 461-62 (9th Cir. 2018), quoting Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969

(8th Cir. 2017). “[T]he contributing factor that an employee must prove is

intentional retaliation prompted by the employee engaging in protected activity.”

Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014). 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. Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 158 (3d

Cir. 2013).

On appeal, BNSF contends that the ALJ erred in finding that Thorstenson’s

November 22, 2010 report of an injury contributed to his discipline. The ALJ relied

on “chain of events” or “inextricably intertwined” analysis to conclude that

Complainant’s protected activity of filing an injury report in November 2010

contributed to the Notice of Investigation and the imposition of the Level S violation

for untimely filing. Specifically, the ALJ found that “there cannot be a late report

unless there is a report, and the report is protected.” 10

D. & O. at 19. We note that the ALJ referred to the complainant’s burden to prove

contributing factor causation as establishing or proving a “prima facie case.” After a

hearing, the complainant must prove causation by a preponderance of the evidence. A

prima facie case is usually associated with an inference of causation. Brune v. Horizon Air

Indus., ARB No. 04-037, ALJ No. 2002-AIR-008 (ARB Jan. 31, 2006). Although the ALJ

used “prima facie case,” he applied the correct standard. D. & O. at 15.

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The ARB has held that where protected activity directly leads to an

investigation and the investigation leads to discovery of wrongdoing which results in

an unfavorable employment action, the report and the discipline are inextricably

intertwined and causation is established presumptively as a matter of law. In

DeFrancesco v. Union R.R. Co., ARB No. 10-114, ALJ No. 2009-FRS-009 (ARB Feb.

29, 2012), for example, the ARB observed the following:

If DeFrancesco had not reported his injury as he was required to

do, Kepic would never have reviewed the video of DeFrancesco’s fall or

his employment records. Kepic admitted this at the hearing, testifying

that such a review was routine after an employee reported an injury

and that the purpose of the review was to determine “the root cause.”

Kepic stated that after seeing the video he reviewed DeFrancesco’s

injury and disciplinary records to determine whether there was a

pattern of safety rule violations and what corrective action, if any,

needed to be taken.

While DeFrancesco’s records may indicate a history and pattern

of safety violations, the fact remains that his report of the injury on

December 6 triggered Kepic’s review of his personnel records, which

led to the 15-day suspension. If DeFrancesco had not reported his fall

and Kepic had not seen the video, Kepic would have had no reason to

conduct a review of DeFrancesco’s injury and disciplinary records,

decide that he exhibited a pattern of unsafe conduct, and impose

disciplinary action.

… Applying the framework of proving a contributing factor

under AIR 21, we can only conclude as a matter of law that

DeFrancesco’s reporting of his injury was a contributing factor to his

suspension.

Id. at 7-8 (footnotes omitted and emphasis added).

The ALJ’s findings and reasoning in this case are analogous to that in

DeFrancesco. Thorstenson filed an untimely report. BNSF, which had a clear policy

on timely reporting injuries, disciplined Thorstenson for untimely reporting. The

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ALJ, following ARB precedent, found that the discipline was “inextricably

intertwined” with the protected report. Had there been no report, there would have

been no discipline for untimely filing it. 11 Through this reasoning, the ALJ found

that Thorstenson met his burden to prove contributing factor causation by a

preponderance of the evidence. D. & O. at 19.

We hold that the ALJ committed legal error. We take this opportunity to

clarify that we no longer require that ALJs apply the “inextricably intertwined” or

“chain of events” analysis. 12 We note that the plain language of the statute does not

include the term “inextricably intertwined.” Rather, this is a construction that

substitutes for, and in some cases circumvents, the ALJ’s contributing factor or

affirmative defense analyses.

By placing the focus on how the employer came to learn of the employee’s

wrongdoing rather than the employer’s actions based on that wrongdoing or

protected activity, “chain of events” causation departs from the statute’s

“contributing factor” text. In Gunderson v. BNSF Ry. Co., the Eighth Circuit noted

that Congress did not intend to insulate wrongdoing because the employee engaged

in protected activity. 850 F.3d 962, 969-70 (8th Cir. 2017) (“An employee who

engages in protected activity is not insulated from adverse action for violating

workplace rules, and an employer’s belief that the employee committed misconduct

is a legitimate, non-discriminatory reason for adverse action.”). The Seventh Circuit

has also criticized the inextricably intertwined doctrine, noting that reporting the

injury is not a proximate cause to the termination when the employee is terminated

for carelessness in creating the injury or for some other conduct discovered as part

See, e.g., Riley v Dakota, Minnesota & Eastern RR Corp., ARB Nos. 16-010, 16-052

(July 6, 2018), slip op. at 5, citing Henderson v. Wheeling & Lake Erie Ry., ARB No. 11-013,

slip op. at 14 (ARB Oct. 26, 2012) (Riley was charged with failure to promptly report an

incident to his supervisor and was not found to have violated any other work rule or

regulation); see also Smith v. Duke Energy Carolinas, LLC, ARB No. 11-003, ALJ No. 2009ERA-007, slip op. at 4 (ARB June 20, 2012) (the termination decision by Smith's managers

stemmed solely from Smith's seven-day delay in reporting false log signatures, and not on

the bare fact that Smith made the report, thus the Board held that Smith's act of reporting

the information to the managers triggered the decision to terminate him).

11

In overturning our rule of “inextricably intertwined” and “chain of events” causation,

we note that several Circuit Courts of Appeal have disagreed with our prior analysis. We

further explain our departure by emphasizing the language of the statute. Nat'l Cable &

Telecommunications Ass'n v. Brand X Internet Servs, 545 U.S. 967 (2005).

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of the review process initiated by the report of the injury. Koziara v. BNSF Ry. Co.,

840 F.3d 873, 877 (7th Cir. 2016) (“[p]roximate causation creates legal liability,

‘proximate’ denoting in law a relation that has legal significance”). We agree with

this analysis.

This is not to say that an ALJ may not find that an adverse action and

protected activity are intertwined such that contributing factor causation is

factually established. For these cases, the ALJ must explain how the protected

activity is a proximate cause of the adverse action, not merely an initiating event.

Koziara, 840 F.3d at 877 (finding that the district court erred in relying on the fact

that the “injury report initiated the events that led to his discipline”). In Koziara,

the Seventh Circuit held that the “[the district court] failed to distinguish between

causation and proximate causation. The former term embraces causes that have no

legal significance. Had the plaintiff never been born or never worked for BNSF he

would neither have been hurt by the plank flung at him by the energetic front-end

loader nor have stolen railroad ties from the railroad. But that doesn’t mean that

his being born or his being employed by the railroad were legally cognizable

[proximate] causes of his being fired.” Id. at 877.

By applying the ARB’s precedent on “inextricably intertwined” or “chain of

causation,” the ALJ erred. For the reasons discussed below, that error does not

require remand in this case because the ALJ also found that BNSF established its

affirmative defense, and we affirm those findings.

4. BNSF would have imposed a Level S discipline for untimely

reporting in the absence of protected activity

If a complainant meets his or her burden of proof that he or she engaged in

protected activity and that protected activity contributed to an adverse action, the

employer may avoid liability only if it proves by clear and convincing evidence that

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

complainant’s protected activity. 13

The ALJ concluded that BNSF established by clear and convincing evidence

that it disciplined Thorstenson in January 2011 because his report of injury on

November 22, 2010, was late, not because he reported an injury. The ALJ found

that the overwhelming evidence establishes that BNSF imposes no discipline when

a report is timely and imposes discipline when the report is late. D. & O. at 23.

The ALJ noted that Complainant himself had previously filed seven injury

reports and was not disciplined, but discipline was imposed on the one occasion

when he reported late. In addition, BNSF submitted the personnel files of seventeen

workers who reported injuries in 2011 and were not disciplined and seven Public

Law Board decisions that upheld its decisions to discipline employees for late

reporting of an injury. The ALJ gave some weight to the Public Law Board’s

determination that imposition of Level S discipline for a late injury report was

consistent with BNSF’s disciplinary policy.

The ALJ found that there was no evidence of pretext or personal animus and

that Thorstenson testified that the trainmaster did not seem upset with him when

he went into the office to complete the injury report. Thus, the ALJ found that

Respondent established the affirmative defense by clear and convincing evidence, a

burden that is higher than that faced when establishing contributing factor

causation.

We affirm the ALJ’s rejection of Complainant’s contention that BNSF’s

enforcement of its timely injury reporting policy is unreasonable and unduly

burdensome. The ALJ found that so long as a rule is lawful, an employer is entitled

to its disciplinary rules even if the rules are unwise, counterproductive, or arbitrary.

“‘Courts do not sit as a super-personnel department that re-examines an employer’s

disciplinary decisions.” See Kuduk, 768 F.3d at 792. The ALJ noted that “[w]hen a

“Relief may not be ordered under subparagraph (A) 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.” See 49 U.S.C. § 20109 (incorporating the

burdens of proof found in 49 U.S.C. § 42121(b)(2)(B)(iv)); cf. Clem v. Computer Sciences

Corp., ARB No. 16-096, ALJ No. 2015-ERA-003, -004, slip op. at 18 n.8 (ARB Sept. 17,

2019) (discussing the clear and convincing standard in context of statutory requirements).

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worker reports an injury, the railroad is in a position to investigate to determine

whether there are unsafe conditions that must be corrected for the protection of the

public and of rail workers. Without notice of an injury, a railroad cannot take these

steps.” D. & O. at 23.

We conclude that the ALJ’s findings are supported by substantial evidence.

We affirm the ALJ’s finding that Respondent established by clear and convincing

evidence that it would have disciplined Complainant with a Level S violation for the

sole reason that his report was late, not because he reported an injury.

5. BNSF would have terminated Thorstenson under its progressive

discipline policy in the absence of protected activity

The ALJ found that there was “no dispute” that BNSF would have imposed

the second Level S violation for Thorstenson’s role in the June 2011 safety incident

in the absence of protected activity. D. & O. at 25-26. The ALJ factored in that the

other employee involved in the incident was also given a Level S violation, and that

it was possible that Complainant could have received a standalone dismissal given

the seriousness of the charges against him in connection with the event.

However, in Thorstenson’s case, he was terminated because the second Level

S violation occurred while Thorstenson was under a 36-month review period for the

prior Level S violation. The ALJ found that it was part of BNSF’s progressive

discipline policy to terminate an employee for receiving a second Level S violation

within the review period. The ALJ’s findings are supported by substantial evidence.

As we affirm the ALJ’s finding that BNSF established by clear and

convincing evidence that it would have disciplined Thorstenson with a Level S

violation for untimely reporting an injury, and we affirm the ALJ’s finding that

BNSF would have imposed a second Level S discipline, we therefore also affirm the

ALJ’s finding that BNSF would have terminated Thorstenson’s employment

following his second Level S violation, even absent the protected injury report or his

filing a claim with OSHA.

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6. BNSF’s 36-month review period

General Manager Jones imposed a 36-month review period following

Thorstenson’s first Level S violation for untimely reporting because Thorstenson

had filed an injury report within the previous five years. The ALJ found that this

was a violation of the FRSA. The ALJ also found that BNSF failed to establish its

affirmative defense as to the imposition of a 36-month review period for the latereported injury. D. & O. at 24-25. We agree with the ALJ that BNSF violated the

FRSA with its imposition of the 36-month review period. At the time, the review

period following a Level S violation was 12 months for “injury free” and “discipline

free” employees, and the reason that Jones extended it to 36 months was because of

Thorstenson’s prior injury report.

The ALJ further found that Thorstenson did not establish any damages due

to the imposition of the 36-month review period because the second Level S

violation triggering progressive discipline occurred within 12 months and would

have caused the termination whether BNSF had imposed the 12-month or the 36month review period. Nonetheless, the ALJ ordered that BNSF cease and desist

from its policy of imposing the 36-month review periods for persons who receive

discipline but have reported an injury prior to receiving that discipline. 14

BNSF appealed the ALJ’s order, asserting that the “cease and desist” order

was beyond the ALJ’s powers. We agree. The ALJ’s cease and desist order is ultra

vires and we vacate the order. See Hoffman v. NetJets Aviation, Inc., ARB No. 09021, ALJ No. 2007-AIR-007 (ARB Mar. 24, 2011) (Board only has power to abate a

proven violation); see also Yates v. Superior Air Charter, LLC, ARB No. 17-061, ALJ

No. 2015-AIR-028, n. 9 (ARB Sept. 26, 2019).

CONCLUSION

Accordingly, we AFFIRM the ALJ’s finding that Thorstenson established

that he engaged in protected activity and that the imposition of a Level S violation

as a result of the late injury report, the 36-month review period, and the

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8.

The ALJ acknowledged that BNSF has since discontinued that practice. D. & O. at

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termination of employment following the second Level S violation are adverse

employment actions. In addition, while we conclude that the ALJ erred in his

contributing factor analysis, we hold that it is unnecessary to remand for further

findings because we AFFIRM the ALJ’s finding that BNSF established by clear and

convincing evidence that it would have imposed the Level S violations and

terminated Thorstenson in the absence of the Complainant’s protected activity.

However, we VACATE the ALJ’s order that BNSF must cease and desist its policy

of imposing a greater discipline on employees based solely on account of an

employee’s history of workplace injuries as it is beyond the power of the ALJ.

SO ORDERED.

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