Przytula v. Grand Trunk Western Railroad Co. (agency decision, September 26, 2019)

Plain-English summary

Grand Trunk Western Railroad discharged locomotive engineer Todd Przytula after repeated absences violated its attendance policy and his latest last-chance agreement. Przytula claimed the Federal Rail Safety Act protected his absences because he was following a physician's instructions. The Board held that the Act's medical-treatment protections apply to treatment connected to an injury suffered during employment. Przytula's illnesses were unrelated to his work, and there was no dispute on that point. The Board therefore affirmed summary decision for the railroad and denied the complaint.

Decision snapshot

• Cited authorities: 49 U.S.C. §§ 20109 and 42121(b)(2)(B)(iii); 29 C.F.R. §§ 1982.110(a), 18.72(a), and 1982.109(a)
• Outcome: Summary decision for Grand Trunk Western Railroad affirmed and the FRSA complaint denied.
• Key point: FRSA Section 20109(c)(2) protects treatment plans for workplace injuries, not physician instructions concerning an unrelated illness.

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:



  TODD PRZYTULA,                                 ARB CASE NO.     2017-0007

                  COMPLAINANT,                   ALJ CASE NO.     2014-FRS-00117

         v.                                      DATE: September 26, 2019

  GRAND TRUNK WESTERN
  RAILROAD CO.,

                  RESPONDENT.



  Appearances:

  For the Complainant:
        Robert B. Thompson, Esq.; Laurence C. Acker, Esq.; and Robert E.
        Harrington III, Esq.; Harrington, Thompson, Acker & Harrington, Ltd.;
        Chicago, Illinois

  For the Respondent:
        Noah G. Lipschultz, Esq., Joseph D. Weiner, Esq., Littler Mendelson,
        P.C., Minneapolis, Minnesota

  Before: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes and Heather C. Leslie, Administrative Appeals Judges.



                         FINAL DECISION AND ORDER

         PER CURIAM. This case arises under the employee protection provisions of the
  Federal Rail Safety Act of 1982 (FRSA). 1 Complainant Todd Przytula filed a
  complaint with the United States Department of Labor’s Occupational Safety and
  Health Administration (OSHA) alleging that Respondent Grand Trunk Western
  Railroad Company (GTW) violated the FRSA by discharging him from employment
  in retaliation for activity protected by the FRSA. For the following reasons, we deny
  the complaint.



                                         BACKGROUND

         GTW hired Przytula in 2003, and in 2011 he began working as a locomotive
  engineer. As an engineer he was responsible for operating engines on tracks that
  crossed public roads. Under GTW’s attendance policy and a collective bargaining
  agreement, employees such as Przytula were entitled to an established number of
  personal leave days. Absences beyond the established maximum would result in
  discipline unless they fell into an exception to the attendance policy. 2

         Between July 24, 2003 and May 21, 2013, Przytula was disciplined sixteen
  times for absences from work. 3 His employment was terminated on June 9, 2012,
  and April 22, 2013, but on each of those occasions he was allowed to return to work
  under “last chance” agreements. The latter of these agreements, issued on May 21,
  2013, informed Przytula that further absences would result in discharge. 4

         On July 13, 2013, Przytula was nauseous and disoriented, so he went to his
  family doctor, who told him not to go to work. Przytula did not work on either July
  13th or 14th, and he returned to work on July 15th. Przytula was also absent from
  work with a headache and stomach ache on August 4 and 5, 2013. It is undisputed
  that these illnesses were not caused by or related to his employment, and Przytula

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


  2 Deposition of Todd W. Przytula (Przytula Dep.), Exhibits 3-4.


  3 Respondent’s Memorandum in Support of Its Motion for Summary Decision (Resp. Mem.)

  at 4-5, citing Przytula Dep., Exhibits 5-23.

  4 Resp. Mem. at 6, citing Affidavit of Phillip Tassin in Support of Respondent’s Motion for

  Summary Decision, ¶ 4.

  does not assert that, when he took those days off, he informed GTW that he was
  following the orders or treatment plan of a doctor.

         Przytula’s absences in July and August 2013 violated his employer’s
  attendance policy as well as his May 2013 last chance agreement. As a result, GTW
  conducted an investigative hearing to determine if the absences warranted
  dismissal. At the hearing Przytula presented two notes from his doctor, but neither
  note indicated that the doctor ordered Przytula to refrain from working. 5 After the
  hearing GTW General Manager Phillip Tassin determined that Przytula’s
  absenteeism violated GTW work rules and the terms of his most recent last chance
  agreement. GTW fired Przytula on August 30, 2013.

         Przytula filed a three-page complaint with OSHA on October 10, 2013. In the
  complaint Przytula asserted that he was absent from work “for various days in the
  May 24 through August 9 [2013] time period as a result of a medical condition
  which interfered with his ability to safely perform his job duties,” and that his
  “decision to report himself as sick to Respondent GTW is because he was following
  the orders and treatment plan of his treating physician.” 6

        OSHA determined that Przytula’s discharge did not violate the FRSA and
  denied the complaint. Przytula requested a hearing on his complaint before an
  Administrative Law Judge (ALJ). Prior to a hearing GTW filed a Motion for
  Summary Decision, and on November 14, 2016, the ALJ issued a Decision and
  Order Granting Respondent’s Motion for Summary Decision (D. & O.). Przytula
  appealed the ALJ’s ruling to the Board.



                        JURISDICTION AND STANDARD OF REVIEW

         The Secretary of Labor has delegated authority to the ARB to review ALJ
  decisions in cases arising under the FRSA and to issue final agency decisions in




  5 Resp. Mem. at 7-8


  6 Complaint at 1.

  these matters. 7 The ARB reviews an ALJ’s decision granting summary decision
  using a de novo standard. 8 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 the moving party is entitled to prevail as a matter of law. 9 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. 10



                                         DISCUSSION

         The FRSA prohibits a railroad company, a contractor, officer, or employee of
  a railroad company from retaliating against an employee because the employee
  engaged in activity protected by the FRSA. 11 A successful FRSA complainant must
  prove that she or he suffered an adverse employment action that was caused, wholly
  or in part, by complainant’s protected activity. 12




  7 See Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (Apr. 3, 2019); 29
  C.F.R. § 1982.110(a).

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

  24, 2005).

  9 29 C.F.R. § 18.72(a) (2018); Franchini v. Argonne Nat’l Lab., ARB No. 2013-0081, ALJ No.

  2009-ERA-00014, slip op. at 6 (ARB Sept. 28, 2015) (citations omitted).

  10 Franchini, slip op. at 6; Henderson v. Wheeling & Lake Erie Ry., ARB No. 2011-0013, ALJ

  No. 2010-FRS-00012, slip op. at 9 (ARB Oct. 26, 2012).

  11 49 U.S.C. § 20109. The FRSA incorporates the procedures found in the whistleblower

  protection section of the Wendell H. Ford Aviation Investment and Reform Act for the 21st
  Century, commonly known as “AIR 21.” See 49 U.S.C. § 20109(d)(2)(A) (“Any [enforcement]
  action [under the substantive prohibitions on retaliation for whistleblowing] shall be
  governed under the rules and procedures set forth in [the AIR-21 whistleblower protection
  provision].”).

  12 See 49 U.S.C. § 42121(b)(2)(B)(iii) (2000); 29 C.F.R. § 1982.109(a); Luder v. Cont'l
  Airlines, Inc., ARB No. 10-026, ALJ No. 2008-AIR-009, slip op at 6-7 (ARB Jan. 31, 2012).

         Section 20109(c) of the FRSA prohibits employers from denying prompt
  medical treatment and disciplining employees for following the treatment plan of a
  treating physician:

                  (c) Prompt Medical Attention.—

                     (1) Prohibition.—

                        A railroad carrier or person covered under this
                        section may not deny, delay, or interfere with the
                        medical or first aid treatment of an employee who is
                        injured during the course of employment. If
                        transportation to a hospital is requested by an
                        employee who is injured during the course of
                        employment, the railroad shall promptly arrange to
                        have the injured employee transported to the
                        nearest hospital where the employee can receive safe
                        and appropriate medical care.

                  (2) Discipline.—

                        A railroad carrier or person covered under this
                        section may not discipline, or threaten discipline to,
                        an employee for requesting medical or first aid
                        treatment, or for following orders or a treatment
                        plan of a treating physician, except that a railroad
                        carrier's refusal to permit an employee to return to
                        work following medical treatment shall not be
                        considered a violation of this section if the refusal is
                        pursuant to Federal Railroad Administration
                        medical standards for fitness of duty or, if there are
                        no pertinent Federal Railroad Administration
                        standards, a carrier's medical standards for fitness
                        for duty. For purposes of this paragraph, the term
                        “discipline” means to bring charges against a person
                        in a disciplinary proceeding, suspend, terminate,
                        place on probation, or make note of reprimand on an
                        employee’s record.

        The Board recently discussed the extent of employee protection provided by
  Section 20109(c) in Wevers v. Montana Rail Link, Inc. 13 In that case we concluded

  13 ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019).

  that “subsection 20109(c)(1) prohibits an employer from denying, delaying, or
  interfering with medical treatment or first aid only in the temporal period
  immediately following a workplace injury.” 14 We also noted that the purpose of
  subsection (c)(2) is to ensure that an injured employee can follow an ongoing
  treatment plan for the injury suffered in subsection (c)(1). 15 Several federal courts
  have also concluded that subsection (c)(2) applies only to injuries suffered at the
  workplace. 16

         In this case, there is no dispute that the illnesses and absences that were the
  cause of Przytula’s discharge were not related to any injuries suffered during the
  course of employment. Przytula asserts his claim solely on the argument that the
  FRSA does not allow GTW to discharge him for following any treatment ordered by
  a physician. This is an incorrect interpretation of the statute. Przytula did not
  engage in FRSA-protected activity when he informed GTW that he was following
  the instruction of a physician for an illness not related to the performance of his
  duties. He has therefore failed to show that there is a genuine issue of material fact
  requiring a hearing on the merits of his claim.




  14 Wevers, slip op. at 13 (emphasis added).


  15 Id. at 12-13.


  16 See, e.g., Grand Trunk Western R.R. Co. v. U.S. Dep’t of Labor, 875 F.3d 821, 823 (6th Cir.

  2017) (“[S]ubsection (c)(2), just like its preceding subsection (c)(1), applies only to on-duty
  injuries.”); Stokes v. Se. Penn. Transp. Auth., 657 Fed.Appx. 79, 80-82 (3d Cir. 2016)
  (medical instruction to stay on bed rest “was unconnected to railroad safety, and thus
  [plaintiff’s] refusal to appear due to a non-work-related risk to her was not covered by the
  FRSA”); Port Authority Trans-Hudson Corp. v. Secretary, U.S. Dept. of Labor, 776 F.3d 157,
  162 (3d Cir. 2015) (“Since, under subsection (c)(2), a physician’s order could include a
  direction that an employee not work (as the physician's order did in this case), and because
  there is no temporal limitation in the statute, the DOL's interpretation would functionally
  confer indefinite sick leave on all railroad employees who can obtain a physician’s note.”);
  Murdock v. CSX Transp., Inc., No. 3:15-cv-1242, 2017 WL 1165995, at *3 (N.D. Ohio 2017)
  (medical treatment described in subsection (c)(2) “is limited to injuries that occur ‘during
  the course of employment’”).

                                   CONCLUSION

       GTW 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 Przytula’s complaint.

         SO ORDERED.