Hunter v. CSX Transportation, Inc. (agency decision, April 25, 2019)

Plain-English summary

CSX engineer Desmond Hunter reported a sounding wheel-slip alarm and later challenged his discharge as retaliation under the Federal Rail Safety Act. The ALJ found the report protected because it was a good-faith report of a hazardous safety concern that an engineer had to report. CSX's cross-appeal did not change that conclusion because it repeated arguments the ALJ had already considered and rejected. The ALJ nevertheless found that the report did not contribute to discharge and, alternatively, that CSX clearly and convincingly proved it would have discharged Hunter anyway. The Board deferred to the supported credibility findings, adopted the ALJ's ruling, and denied both sides' challenges.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109; 29 C.F.R. § 1982.110
• Outcome: ALJ decision denying the FRSA complaint affirmed and adopted as the Secretary's final decision.
• Key point: A good-faith wheel-slip alarm report was protected, but the claim still failed on causation and the railroad's same-action defense.

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:


  DESMOND A. HUNTER,                            ARB CASE NOS.     2018-0044
                                                                  2018-0045

         COMPLAINANT,                           ALJ CASE NO.    2017-FRS-00007

         v.                                     DATE: April 25, 2019

  CSX TRANSPORTATION, INC.,

        RESPONDENT.


  Appearances:

  For the Complainant:
        Joseph M. Miller, Esq., Carisa German-Oden, Esq., and Benjamin B.
        Saunders, Esq.; Davis, Saunders, Miller & Oden, PLC; Mandeville,
        Louisiana

  For the Respondent:
        Jacqueline M. Holmes, Esq., and Nickey L. McArthur, Esq.; Jones
        Day; Washington, District of Columbia

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


                       FINAL DECISION AND ORDER





         PER CURIAM. This case arises under the whistleblower protection provisions
  of the Federal Rail Safety Act of 1982 (FRSA). 1 The Administrative Law Judge
  (ALJ) found that the Complainant, Desmond Hunter, established that he engaged
  in protected activity but did not establish that his protected activity was a
  contributing factor in the Respondent’s (CSX Transportation, Inc.) decision to
  discharge him. The ALJ further found that the Respondent established by clear and
  convincing evidence that it would have discharged Complainant even in the absence
  of his protected activity. Thus, the ALJ concluded that Respondent established its
  affirmative defense to liability and denied the complaint. 2 On appeal, Complainant
  urges the Administrative Review Board (ARB or Board) to reverse the ALJ’s ruling
  on whether Complainant had established that his protected activity contributed to
  his termination. Complainant also asks the Board to reverse the ALJ’s holding that
  the Respondent established its affirmative defense. Finally, Complainant asks this
  Board to remand the case for a new hearing. The Respondent opposes
  Complainant’s appeal. (ARB No. 2018-0044). The Respondent has also petitioned for
  review, arguing that the ALJ erred in finding that Complainant engaged in
  protected activity. Complainant opposes Respondent’s appeal. (ARB No. 2018-0045).



                        JURISDICTION AND STANDARD OF REVIEW

         The Administrative Review Board has authority to hear appeals from ALJ
  decisions and to issue final agency decisions on behalf of the Secretary of Labor in
  cases arising out of the FRSA whistleblower protection provisions. 3 The ARB
  reviews questions of law presented on appeal de novo, but is bound by the ALJ’s
  factual findings as long as they are supported by substantial evidence. 4



  1     49 U.S.C. § 20109 (2008), as amended by Section 1521 of the Implementing
  Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Pub. L. 110-53, and as
  implemented at 29 C.F.R. Part 1982 (2018).
  2      Decision and Order (May 2, 2018) (D. & O.).
  3      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. § 1982.110.
  4      29 C.F.R. § 1982.110; Palmer v. Canadian Nat’l Ry. / Ill. Cent. R.R. Co., ARB No.
  16-035, ALJ No. 2014-FRS-154, slip op. at 14-15 (ARB Sept. 30, 2016, reissued Jan. 4,
  2017).



                                        DISCUSSION

         Upon review of the ALJ’s comprehensive D. & O., we conclude that it is a
  reasoned ruling supported by the record and consistent with applicable law. The
  ALJ properly concluded that Complainant had engaged in protected activity when
  he reported that a wheel slip alarm was sounding, which the ALJ determined
  established that Complainant made a good faith report of a hazardous safety
  concern that an engineer is required to report to his supervisor. 5 On appeal, the
  Respondent merely reiterates two arguments: (1) Complainant did not report an
  actual hazardous safety condition, and (2) Complainant did not reasonably believe
  that a hazardous safety condition existed. 6 The ALJ considered and rejected these
  arguments 7 and we see no reason to disturb his reasoning on appeal.

          The ALJ also determined that Complainant did not establish that his
  protected activity was a contributing factor in the decision to discharge him. In
  addition, the ALJ found that, even if Complainant had established that it was a
  contributing factor, the Respondent showed by clear and convincing evidence that it
  would have discharged him in the absence of his protected activity. On appeal,
  Complainant asserts that certain witness testimony is credible, certain evidence is
  significant, and that the Respondent’s non-retaliatory reason for the discharge is
  “bunk.” The Board, however, gives considerable deference to an ALJ’s credibility
  determinations and defers to such determinations unless they are inherently
  incredible or patently unreasonable. 8 In this case, we hold that the ALJ’s credibility
  determinations are neither and we defer to them.




  5      D. & O. at 27-28.
  6      See Respondent’s Opening Brief In Support Of Petition for Review at 5-7.
  7      See D. & O. at 26-28.
  8     See Knox v. Nat’l Park Serv., ARB No. 10-105, ALJ No. 2010-CAA-002, slip op. at 4-5
  (ARB Apr. 30, 2012).



                                     CONCLUSION

         Accordingly, the ALJ’s D. & O. is AFFIRMED. We adopt it as our own and
  attach it. As of the date of this Order, the ALJ’s D. & O. shall become the final
  decision for Secretary of Labor in this matter.

         SO ORDERED.