Brough v. BNSF Railway Company (agency decision, June 12, 2019)

Plain-English summary

BNSF fired longtime employee Steve Brough after he reported an injury from a locomotive collision weeks after the accident. Substantial evidence supported the ALJ's finding that the report contributed to discharge, including management's reaction, shifting charges, and the railroad's perceived hostility to injury reporting. BNSF did not clearly and convincingly prove it would have fired Brough without the report because its generalized comparator evidence did not establish comparable dishonesty. The Board upheld back pay because BNSF did not prove that equivalent jobs were available, but reversed punitive damages because the ALJ found no intentional, reckless, or callous violation. It modified the expungement remedy to require sealed or restricted records that BNSF could not use in personnel decisions or disclose to prospective employers.

Decision snapshot

• Cited authorities: 49 U.S.C. §§ 20109 and 42121(b)(2)(B); 5 U.S.C. § 557(b); 29 C.F.R. § 1982.110(b)
• Outcome: FRSA liability, back pay, compensatory damages, and modified record relief affirmed; punitive damages reversed.
• Key point: Injury-report causation was supported beyond mere intertwinement, but punitive damages could not stand alongside a supported finding that the railroad did not intentionally or recklessly violate the law.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:



  STEVE BROUGH,                                    ARB CASE NO.   2016-0089

                  COMPLAINANT,                     ALJ CASE NO.    2014-FRS-00103

         v.                                        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





  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,


  1      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).

  2      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.

  3       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.

  4      “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.”




  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



  5      Respondent’s Exhibit (RX) B.

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

  7      CX 1, 4, 5.

  8      RX D.

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




  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


  10     Id. at 123-31, 133-41.

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

  12      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.

  13     RX D, TR at 464-70.




         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




  14     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.

  15     CX 15, 19, 37, 66.

  16     TR at 428-430.

  17     CX 38-39, TR at 428-32.




  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



  18     CX 24.

  19     RX H, CX 23; TR at 182.

  20     CX 22 at 33-34.




  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

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

  22     CX 25, RX U.

  23     RX S, CX 5.

  24     D. & O. at 42, 49.

  25     Id. at 50.

  26     Id. at 61-64.



  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




  27     Id.at 84.

  28    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).

  29     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).

  30    Kruse v. Norfolk S. Ry. Co., ARB Nos 12-081, 106 ALJ No. 2011-FRS-022, slip op. at
  3 (ARB Jan. 28, 2014).

  31     29 C.F.R. § 1982.110(b).

  32    Mizusawa v. United Parcel Serv., ARB No. 11-009, ALJ No. 2010-AIR-011, slip op. at
  3 (ARB June 15, 2012).




  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




  33     49 U.S.C. §§ 20109(d)(2)(A)(i), 42121(b)(2)(B)(iii)-(iv).

  34     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).

  35     D. & O. at 5.

  36     BNSF’s Brief at 1-4.




  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.


  37     D. & O. at 61.

  38     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).

  39      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).




         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.



  40     816 F.3d 628, 639 (10th Cir. 2016), citing Marano v. Dept. of Justice, 2 F.3d 1137
  (Fed. Cir. 1993).

  41     Id. at 639-640.

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




         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 decision-
  making 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

  43     D. & O. at 74-75.




  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

  44     D. & O. at 82-83.

  45     D. & O. at 83-84.

  46     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.

  47      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.




  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.


  48     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. 2002-
  STA-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.

  49      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

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

  51     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).

  52     Anderson v. Timex Logistics, ARB No. 13-016, ALJ No. 2012-STA-011, slip op. at 7
  (ARB Apr. 30, 2014)..




        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 good-
  faith 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

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

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

  55     See 49 U.S.C. § 20109(e)(3).

  56     BNSF’s Brief at 20-21.

  57    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).

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

  59    D’Hooge v. BNSF Rys., ARB Nos. 15-042, 15-066; ALJ No. 2014-FRS-002, slip op. at
  11 (ARB Apr. 25, 2017).




  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.




  60     Beatty, ARB Nos. 15-085, 15-086, slip op. at 12, citing Cooper Indus. v. Leatherman
  Tool Grp., 532 U.S. 424, 435 (2001).

  61      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.”

  62     Section 556 describes requirements for formal APA hearings.




  (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


  63     Albert Einstein Med. Ctr., BALCA No. 2009-PER-00379, slip op. at 29 (BALCA Nov.
  21, 2011) (en banc).

  64     D. & O. at 95.

  65     Id.

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




  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


  67     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.

  68     D. & O. at 85-86. See Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-
  STA-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).

  69     Brough’s Brief at 29.

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



  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.