Leiva v. Union Pacific Railroad Company (agency decision, May 17, 2019)

Plain-English summary

Daniel Leiva previously settled a successful Federal Rail Safety Act case in which Union Pacific agreed not to use or disclose records of 2012 discipline tied to his protected activity. He filed a new FRSA complaint after the company supplied those records to a Public Law Board considering a later discharge. The Board held that the alleged failure to honor the settlement created a contract-enforcement issue, not a new whistleblower cause of action based on the same protected activity and discipline. The settlement itself provided for enforcement in federal district court, and the Railway Labor Act provided routes to challenge the arbitration decision. The Board vacated the ALJ's new liability award and dismissed the complaint.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109; 29 C.F.R. § 1982.110(a); 5 U.S.C. § 557(b); 45 U.S.C. § 153(q)
• Outcome: ALJ liability decision vacated and the new FRSA complaint dismissed.
• Key point: An employer's alleged breach of a final settlement must be enforced in the forum the agreement provides and does not create a duplicate FRSA claim from the same facts.

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:

  DANIEL LEIVA,                                   ARB CASE NO.   2018-0051

                  COMPLAINANT,                    ALJ CASE NO.   2017-FRS-00036

         v.                                       DATE: May 17, 2019

  UNION PACIFIC RAILROAD
  COMPANY,

                  RESPONDENT.

  Appearances:

  For the Complainant:
        Jerry Easley, Esq.; The Law Office of Jerry Easley; Bellaire, Texas

  For the Respondent:
        Jacqueline M. Holmes, Esq., and Nikki L. McArthur, Esq.; Jones Day;
        Washington, D.C.; and Ryan D. Wilkins, Esq.; Union Pacific Railroad
        Company; Omaha, Nebraska

  For the Solicitor of Labor as Amicus Curiae:

         Kate S. O’Scannlain, Esq., Jennifer S. Brand, Esq., William C. Lesser,
         Esq., Megan E. Guenther, Esq., and Elizabeth A. Johnston, Esq.;
         United States Department of Labor; 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 Federal Rail Safety Act of 1982
  (FRSA).1 Complainant Daniel Leiva filed a complaint alleging that the Respondent,
  Union Pacific Railway Company, retaliated against him in violation of the FRSA’s
  whistleblower protection provisions because he engaged in protected activity.
  Respondent appeals from a Decision and Order (D. & O.) of a Department of Labor
  Administrative Law Judge (ALJ) issued on May 25, 2018, concluding that
  Respondent unlawfully discriminated against Complainant and ordering relief.
  Because the events and matters arising in this case relate to a settlement
  agreement previously reached between the parties and a Public Law Board decision,
  we vacate the ALJ’s D. & O. due to Complainant’s failing to state a cause of action
  under the FRSA’s whistleblower protection provisions and dismiss this complaint.

                                       BACKGROUND

         Complainant filed a previous complaint pursuant to the FRSA’s
  whistleblower protection provisions with the Occupational Safety and Health
  Administration (OSHA) on September 19, 2012.2 In that case (Case #1),
  Complainant alleged that while he was working as a train engineer, he engaged in
  protected activity when he reported that he did not feel safe continuing to work with
  a conductor who had physically intimidated and threatened him. In response to his
  report, Respondent pulled him out of service, charged him with workplace violence,
  informed him that he would be subject to a formal investigation and hearing,
  suspended him pending the investigation with no pay, and required him to sign a
  hearing waiver agreeing to termination of his employment followed by immediate
  reinstatement as a probationary employee in order to continue to be employed with
  Respondent. Complainant filed a FRSA complaint and an ALJ held a hearing. The
  ALJ concluded that Respondent violated the FRSA when it took adverse actions
  against Leiva because he engaged in protected activity and that Respondent did not
  show that it would have taken the same actions absent Complainant’s protected
  activity. The ARB affirmed the ALJ’s decision but remanded the case to the ALJ for
  consideration of whether punitive damages were warranted, as Complainant had

  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) and 29 C.F.R. Part 18, Subpart A (2018).

  2     We summarize the facts of the Complainant’s original complaint as set forth in the
  ARB’s decision in that case. See Leiva v. Union Pacific R.R. Co., Inc., ARB Nos. 2014-0016
  and 2014-0017, ALJ No. 2013-FRS-00019 (ARB May 29, 2015) (Case #1).




  requested them from the ALJ but the ALJ had not addressed the punitive damages
  issue.

          On remand the parties settled the case. The Settlement Agreement states
  that “Complainant agrees that acceptance of this Agreement constitutes settlement
  in full of any and all claims against Union Pacific Railroad Company arising out of
  Complainant’s complaint filed with OSHA on April 8, 2015” subject to approval by
  the ALJ. Joint Exhibit (JX) 3 at 2. It provided that Respondent would do the
  following: 1) expunge references to the discipline it assessed against Leiva on July
  27, 2012, from its Human Resources Records (HR System Report); 2) take out any
  references to the exercise of his rights under the FRSA from its HR System Report;
  3) ensure that the facts and circumstances relating to the discipline or exercise of
  his rights “are not used against Complainant in any future disciplinary,
  employment, or promotional opportunities with Respondent”; and 4) give no
  negative references regarding any of these matters to a potential future employer.
  Id. Further, the agreement provided that subject to the ALJ’s approval of the
  settlement, it would constitute the final order under the FRSA and was enforceable
  in an appropriate United States District Court. Id. The parties signed the
  Settlement Agreement on July 1, 2015. Id. at 4. The ALJ approved the Settlement
  Agreement on July 14, 2015, and dismissed the complaint.

         On February 15, 2017, Complainant filed the instant complaint alleging that
  Respondent engaged in adverse action against him by the following actions: when it
  1) fired him on October 27, 2014, 2) advised the Public Law Board on August 29,
  2016, that he “engaged in workplace violence” in 2012, and 3) thereby enabled the
  Public Law Board to rely on Respondent’s allegations that Complainant engaged in
  workplace violence in 2012 to deny his claim before the Public Law Board on
  December 7, 2016, and uphold his termination. D. & O. at 3. OSHA dismissed the
  instant FRSA complaint because determined it was not timely filed. Complainant
  appealed and requested an ALJ hearing, which was held on November 20, 2017.

         The ALJ found that the instant complaint was timely filed and considered
  the merits of the case. The ALJ found that it was uncontested that Complainant
  had engaged in protected activity as set forth in the original ALJ’s D. & O. in Case
  #1. D. & O. at 51. The ALJ further found that Respondent committed a continuing
  violation of the FRSA by maintaining records that Complainant had engaged in
  “workplace violence” in 2012 and Complainant’s disciplinary history regarding it in
  Complainant’s personnel file. Id. at 49, 52. The ALJ found that submission of this



  information to the Public Law Board “was the same unlawful act from 2012” that
  continued to 2017, when the information was finally expunged from Complainant’s
  file. Id. With regard to causation, the ALJ found that “regardless of Respondent’s
  ignorance” [about Complainant’s protected activity when it took the action against
  him in the instant case], the original decision-makers in Case #1 knew about
  Complainant’s protected activity when they placed the information in his personnel
  file where it remained as a continuing violation; thus, the ALJ concluded that
  contributing factor causation was established. Id. at 55-56. The ALJ concluded that
  Respondent failed to establish that it would have taken the same action absent
  Complainant’s protected activity because “there was no reason under any
  circumstance for the 2012 incident to be a part of Respondent’s submission” to the
  Public Law Board because it was supposed to have been expunged. Id. at 57. Thus,
  the ALJ ordered relief.

        Respondent filed a petition for review with the Board on June 8, 2018, which
  the Board accepted. Both of the parties filed briefs. The Solicitor of Labor has filed
  an amicus brief regarding Respondent’s challenge that the ALJ was not properly
  appointed in accordance with the Appointments Clause of the Constitution.3

                         JURISDICTION AND STANDARD OF REVIEW

        The Secretary of Labor has delegated to the Administrative Review Board
  authority to review ALJ decisions in cases arising under the FRSA and issue final
  agency decisions in these matters.4 The Board reviews an ALJ’s conclusions of law
  de novo.5




  3      See U.S. Const. Art 2, § 2, cl. 2. Because we are vacating and dismissing this
  complaint on other grounds, we need not address Respondent’s Appointments Clause
  challenge.

  4      Secretary’s Order No. 1-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13072 (Apr. 3, 2019); see
  29 C.F.R. § 1982.110(a).

  5      Austin v. BNSF Ry. Co., ARB No. 2017-0024, ALJ No. 2016-FRS-00013, slip op. at 7
  (ARB Mar. 11, 2019) (citations omitted). Specifically, the Administrative Procedure Act
  provides at 5 U.S.C. § 557(b) (1976) that “[o]n appeal from or review of the initial decision,
  the agency has all the powers which it would have in making the initial decision . . . .”



                                           DISCUSSION

            As an overarching matter, we hold that the ALJ erred in treating this case
  as entailing a new, separate FRSA complaint rather than as a continuation of Case
  #1. The ALJ found that the Complainant established the elements of entitlement for
  a FRSA complaint, including protected activity, adverse action, and causation, all
  based on the facts and events arising from Complainant’s original complaint.
  Indeed, the ALJ expressly found that “the alleged unfavorable personnel action is
  the same action noted in [the original] ALJ[‘s] . . . Decision and Order issued
  December 2, 2013 (i.e., the inclusion of the 2012 workplace violence incident in
  Complainant’s file).” D. & O. at 52. If all of the elements of the instant claim are the
  same as in Case #1, then there is not a new case to adjudicate. We need not go so far
  as to state that res judicata applies, but we hold that other avenues of redress are
  available and appropriate.

        First, the facts in this matter represent the breach of a settlement agreement
  enforceable, by its terms, in United States District Court.6 The Settlement
  Agreement also states that it settles in full any and all claims arising out of the
  complaint in Case #1.7 Therefore, when Respondent breached the terms of the
  settlement agreement by maintaining information in his personnel file relating to
  Complainant’s disciplinary history and protected activity regarding the
  confrontation with his coworker, a claim in contract for breach of the terms of the
  settlement agreement arose.

        Second, Complainant had avenues for redress before the Public Law Board.8
  Indeed, the ALJ acknowledged that if Complainant objected to the Public Law
  Board’s reliance on the “workplace violence” notation, “the appropriate remedy was


  6     JX 3 at 2 (Settlement Agreement) (“this settlement is . . . enforceable in an
  appropriate United States District Court.”).

  7      JX 3 at 2.

  8      Use of a public law board is one method of arbitration provided for in the Railway
  Labor Act, 45 U.S.C. 151 et seq. (1996). See also D. & O. at 17. It is also significant to note
  that the ALJ was even aware that “the findings of the arbitral panel (i.e., the public law
  board, adjustment board) are ’conclusive of the parties’ and the award is ’final and binding’
  on the parties in the dispute governed by the Railway Labor Act.” D. & O. at 49 n.13.




  to return to arbitration.”9 Additionally, there is a prescribed statutory procedure to
  appeal the Public Law Board decision to federal district court.10

         While the ALJ reasonably considered Respondent’s failure to expunge the
  retaliatory information included in Complainant’s personnel file,11 in violation of
  the terms of the settlement agreement, to be reprehensible and egregious conduct,
  the remedy is not the filing of a new FRSA complaint based on the same set of facts.
  Neither the ALJ nor this Board possess continuing jurisdiction to enforce
  settlement agreements that have become the final decision of the Secretary. Under
  such circumstances, Complainant must pursue any remedies in a proper forum in
  accordance with the terms of the settlement agreement to which he is a party.12

  9      Id.

  10      45 U.S.C. § 153(q) (“If any employee . . . is aggrieved by the failure of any division of
  the Adjustment Board to make an award in a dispute referred to it, or is aggrieved by any
  of the terms of an award or by the failure of the division to include certain terms in such
  award, then such employee or group of employees or carrier may file in any United States
  district court in which a petition under paragraph (p) could be filed, a petition for review of
  the division’s order.”).

  11      We note 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 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 folder or that the
  employer be specifically prohibited from relying on the information in future personnel
  actions or referencing it to prospective employers.

  12     Even if we were somehow able to entertain Complainant’s complaint, dismissal of
  the complaint would still be appropriate. The ALJ found that the Respondent’s decision-
  makers who submitted the “workplace violence” information to the Public Law Board had
  no knowledge about Complainant’s protected activity. Specifically, the ALJ summarized the
  Respondent’s decision-makers’ (Gearan’s, Chappell’s and Powell’s) testimony indicating
  that each had stated that they had no knowledge about Complainant’s protected activity.
  D. & O. at 55. The ALJ found each of these witnesses to be “sincere, unbiased, and credible”
  and their demeanors to be persuasive. D. & O. at 51. But the ALJ found causation despite
  this and “regardless of Respondent’s ignorance,” because there was causation in Case #1
  when the protected activity and discipline information was placed in Complainant’s
  personnel file. This was error because if the decision-makers did not know about
  Complainant’s protected activity and discipline, it could not have contributed to their
  decision to use the information. This finding would necessitate dismissal because, with a
  “no knowledge” finding, there can be no legally sufficient causation.



                                   CONCLUSION

        Because this complaint does not state a new cause of action, we VACATE the
  ALJ’s D. & O. Accordingly, this complaint is DISMISSED.

         SO ORDERED.