Stearns v. Union Pacific Railway Company (agency decision, April 5, 2019)

Plain-English summary

Union Pacific yardmaster Timothy Stearns was on probation for an earlier rules violation when he argued with and belittled a coworker, then threw a steak knife at a wall while describing what he wanted to do toward that coworker. He admitted the threatening comments and knife-throwing incident, and the railroad discharged him for that conduct. Stearns argued that keeping trains moving was safety-related and that his work itself was protected under the Federal Rail Safety Act. The Board held that he identified no specific protected activity and offered no evidence that a safety report or concern contributed to discharge. It affirmed summary decision for the railroad and denied the complaint.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109; 29 C.F.R. § 18.72(a)
• Outcome: Summary decision for Union Pacific affirmed and FRSA complaint denied.
• Key point: Performing a safety-sensitive railroad job is not itself protected activity, and the employee must link a specific protected act to the adverse action.

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:

  TIMOTHY L. STEARNS,                        ARB CASE NO. 2017-0001

                  COMPLAINANT,               ALJ CASE NO. 2016-FRS-00024

         v.                                  DATE:         April 5, 2019

  UNION PACIFIC RAILWAY
  COMPANY,

                  RESPONDENT.


  Appearances:

  For the Complainant:
        Timothy L. Stearns; pro se; North Platte, Nebraska

  For the Respondent:
        Torry N. Garland, Esq.; Union Pacific Railway Company;
        Denver, Colorado

  Before: William T. Barto, Chief Administrative Appeals Judge; James
  A. Haynes and Daniel T. Gresh, Administrative Appeals Judges


                       FINAL DECISION AND ORDER

        J. HAYNES, Administrative Appeals Judge. Timothy Stearns
  complained that the Respondent, his employer, Union Pacific Railway
  Company , fired him in violation of the whistleblower protections of the
  Federal Railroad Safety Act of 1982 (FRSA) and its implementing





  regulations1 because he expressed concerns about railroad safety. Prior to a
  hearing, an Administrative Law Judge (ALJ) granted Respondent’s motion
  for summary decision and dismissed Stearns’ complaint. Stearns appealed to
  the Administrative Review Board (ARB). We affirm.

                                    BACKGROUND
         The following facts are generally undisputed.2 Timothy Stearns was a
  yardmaster at the North Platte, Nebraska locomotive service facility. On
  March 3, 2014, he left work and turned over his duties to an employee not
  fully qualified as a yardmaster. Stearns was disciplined and later signed a
  letter of leniency which returned him to service on an eighteen month
  probation period. The letter stated that Stearns could be fired if he again
  violated Rule 1.6 of the Respondent’s General Code of Operating Rules
  (GCOR).

          On July 27, 2014, Stearns requested information from a co-worker
  who replied that he was busy and didn’t have the information. Stearns
  became irate and belittled him for not doing his job.3 Supervisor Greg Mellon
  overheard the raised voices and attempted to calm Stearns but he continued
  yelling that the co-worker was not providing him the information he needed
  to keep the trains moving.

        After the initial altercation, Mellon called Stearns into his office and
  counseled him about acting in a professional manner. Later at dinner,
  Stearns described the incident to another yardmaster. Stearns then stood up
  and threw a steak knife against the wall, remarking, “I’ll tell you what I
  would have liked to have done, I would of liked to do this towards him.” The
  witness prepared a written statement of what he saw and heard and gave it
  to Mellon.4


  1      49 U.S.C. § 20109 (2008), as implemented at 29 C.F.R. Part 1982 (2018).

  2     The references in this paragraph are to the ALJ’s Order Granting
  Respondent’s Motion for Summary Decision (Order) at 2-3.

  3      Respondent’s Exhibit (RX) A.

  4      RX C and D.




          On July 28, 2014, Stearns was removed from service. An investigatory
  hearing took place on May 27, 2015, and the Respondent fired Stearns on
  June 5, 2015, for violating Rule 1.65 and Respondent’s workplace violence
  policy.6

         Stearns filed a complaint with the Occupational Safety and Health
  Administration (OSHA) on July 22, 2015. On January 12, 2016, OSHA
  dismissed the complaint and Stearns timely requested a hearing before an
  ALJ.7 Prior to the hearing, the Respondent filed a motion for summary
  decision, and Stearns filed an opposition. The ALJ granted Respondent’s
  motion on September 22, 2016, and dismissed Stearns’s complaint. Stearns
  has appealed to the ARB.

                     JURISDICTION AND STANDARD OF REVIEW

         The Secretary of Labor has delegated authority to decide this appeal
  to the Administrative Review Board.8 The ARB reviews an ALJ’s decision
  granting summary decision using a de novo standard.9

        Summary decision is appropriate if the pleadings, affidavits, and other
  evidence show that there is no genuine issue as to any material fact and that




  5      Rule 1.6 of the GCOR reads as follows: Employees must not be careless of the
  safety of themselves or others, negligent, insubordinate, dishonest, immoral,
  quarrelsome, or discourteous. Any act of hostility, misconduct, or willful disregard or
  negligence affecting the interest of the company or its employees is cause for
  dismissal and must be reported. Indifference to duty or to the performance of duty
  will not be tolerated. Complainant’s Exhibit (CX) 1; see Order at 3 n.8.

  6      RX A.

  7      CX 11.

  8      See Secretary’s Order No. 02-2012 (Delegation of Authority and Assignment
  of Responsibility to the Administrative Review Board), 77 Fed. Reg. 69,378-69,380
  (Nov. 16, 2012).

  9     Mehan v. Delta Air Lines, ARB No. 03-070, ALJ No. 2003-AIR-004, slip op. at
  2 (ARB Feb. 24, 2005).




  the moving party is entitled to prevail as a matter of law.10 In reviewing such
  a motion, the evidence before the ALJ is viewed in the light most favorable to
  the non-moving party; the Board may not weigh the evidence or determine
  the truth of the matter; our only task is to determine whether there is a
  genuine conflict as to any material fact for hearing.11

                                      DISCUSSION

          The FRSA prohibits a railroad carrier engaged in interstate commerce
  or its officers or employees from discharging, demoting, suspending,
  reprimanding, or in 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). Protected activities include providing information
  regarding any conduct which the employee reasonably believes constitutes a
  violation of any federal law, rule, or regulation relating to railroad safety or
  security.12

         To prevail under the FRSA, a complainant must establish three points
  by a preponderance of the evidence. They are that: (1) he engaged in
  protected activity as statutorily defined; (2) he suffered an unfavorable
  personnel action; and, (3) the protected activity was a contributing factor in
  the unfavorable personnel action.13 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.14

  10   29 C.F.R. § 18.72(a) (2018); Franchini v. Argonne Nat’l Lab., ARB No. 13-081,
  ALJ No. 2009-ERA-014, slip op. at 6 (ARB Sept. 28, 2015) (citations omitted).

  11     Franchini, ARB No. 13-081, slip op. at 6; Henderson v. Wheeling & Lake Erie
  Ry., ARB No. 11-013, ALJ No. 2010-FRS-012, slip op. at 9 (ARB Oct. 26, 2012).

  12     49 U.S.C.§ 20109(a)(1) and (b)(1)(A).

  13    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).

  14     49 U.S.C. § 20109(d)(2)(A)(i); see Speegle v. Stone & Webster Constr. Inc., ARB
  No. 13-074, ALJ No. 2005-ERA-006, slip op. at 12 (ARB Apr. 25, 2014) (discussing
  three factors to be considered in assessing clear and convincing evidence).




         The issue on appeal is whether the pleadings, affidavits, and other
  evidence show that there is a genuine issue as to a material fact, namely,
  whether any protected activity contributed to Stearns’s discharge. After
  reviewing the evidence presented in the light most favorable to Stearns, we
  agree with the ALJ’s conclusion on this issue. In this case, the ALJ properly
  granted the Respondent’s motion for summary decision because Stearns has
  proffered no evidence that any alleged protected activity contributed to his
  discharge.

         As noted above, Stearns had signed a disciplinary letter for violating
  Rule 1.6 of the GCOR fewer than five months prior to the July incident.15 The
  letter stated that if Stearns violated Rule 1.6 during an eighteen month
  probation, he would be “removed from service without a formal
  investigation.” The June 5, 2015 dismissal letter stated that Respondent fired
  Stearns because of his verbal attack on his co-worker, and his subsequent
  hostile statements and the knife-throwing incident. The ALJ found no
  material fact in dispute because Stearns admitted to making the threatening
  comments and throwing a knife; he also stated that he felt badly about his
  behavior, and wished he could take it back.

        On appeal, Stearns asks the ARB to apply its decision in Fordham v.
  Fannie Mae that in determining contributory causation the ALJ must not
  weigh the employer’s evidence in support of its affirmative defense.16
  However, we subsequently reconsidered the rule announced in Fordham and
  affirmed the ALJ’s duty to weigh all relevant evidence when determining the
  elements of a FRSA complaint. 17




  15     CX 4.

  16     ARB No. 12-061, ALJ No. 2010-SOX-051 (ARB Oct. 9, 2014).

  17     Powers v. Union Pac. R.R. Co., ARB No. 13-034, ALJ No. 2010-FRS-030, at 9,
  (ARB Jan. 6, 2017), aff’d, Powers v. U.S. Dep’t of Labor, No. 17-70676, 723 Fed.
  Appx. 522, 2018 IER Cases 180,768 (9th Cir, May 22, 2018)(unpub.), citing Palmer v.
  Canadian Nat 'l Ry., ARB No. 16-035, ALJ No. 2014-FRS-154, at 16, 37 (ARB Sept.
  30, 2016; reissued Jan. 4. 2017).




         Stearns also argues that as yardmaster he was responsible for the safe
  and efficient operation of train movement. However, Stearns has produced no
  evidence that a delay in moving a particular train would have endangered
  safety in the terminal operations or cause any hazardous condition.

         Finally, Stearns argues that he was engaging in protected activity just
  by being an employee under the FRSA and by moving interstate commerce
  through the terminal. The FRSA, however, still requires an employee to
  prove the specific elements of a complaint. Here, Stearns has offered no
  evidence that could prove that he engaged in protected activity or that the
  activity he did claim contributed to his discharge. The ALJ properly granted
  the Respondent’s motion for summary decision.

                                  CONCLUSION

         The Respondent is entitled to summary decision as a matter of law.
  Accordingly, we AFFIRM the ALJ’s Order Granting Respondent’s Motion for
  Summary Decision and DENY Stearns’s complaint.

         SO ORDERED.