Thorstenson v. BNSF Railway Co. (agency decision, May 15, 2023)

Plain-English summary

Stephen Thorstenson alleged that BNSF disciplined him for reporting a workplace injury. After two rounds of Board and Ninth Circuit review, the court held that substantial evidence did not support BNSF's same-action defense and that the company's reporting rule made compliance virtually impossible, effectively disciplining Thorstenson for the protected injury report. The court determined that he prevailed and was entitled to damages. Treating the mandate as clear and leaving no merits issue open, the Board remanded only for the administrative judge to calculate compensatory damages from the existing record, supplemented as needed for damages after the hearing.

Decision snapshot

• Cited authority: 49 U.S.C. § 20109
• Outcome: Remanded solely to determine compensatory damages.
• Key point: Once the court mandate established liability and rejected the same-action defense, the Board could not reopen the merits and could remand only for damages.

Full text (DOL official public release)

U.S. Department of Labor        Administrative Review Board
                                200 Constitution Ave. NW
                                Washington, DC 20210-0001

IN THE MATTER OF:

STEPHEN THORSTENSON, ARB CASE NOS. 2018-0059, -0060

           COMPLAINANT,                    ALJ CASE NO. 2015-FRS-00052
                                           ALJ STEVEN B. BERLIN
           v.
                                           DATE: May 15, 2023

BNSF RAILWAY COMPANY,

           RESPONDENT.

Before HARTHILL, Chief Administrative Appeals Judge, and BURRELL, Administrative Appeals Judge

                           ORDER OF REMAND

PER CURIAM:

  The Complainant, Stephen Thorstenson, filed a retaliation complaint under

the employee protection provision of the Federal Rail Safety Act of 1982 (FRSA), as amended,1 with the Department of Labor’s Occupational Safety and Health Administration (OSHA). Thorstenson alleged that his employer, BNSF Railway Company (Respondent), retaliated against him for reporting a workplace injury. OSHA concluded there was reasonable cause to believe that Respondent violated the whistleblower provisions of the FRSA. BNSF timely objected and requested a hearing before the Office of Administrative Law Judges (OALJ).

  On July 31, 2018, an Administrative Law Judge (ALJ) issued a Decision and

Order (D. & O) concluding that Thorstenson engaged in protected activity, and the

1 49 U.S.C. § 20109, as implemented by 29 C.F.R. Part 1982 (2022) and 29 C.F.R. Part 18, Subpart A (2022). 2

activity was a contributing factor in the discipline he received.2 The ALJ also found that BNSF established by clear and convincing evidence that it would have disciplined Thorstenson even if he had not engaged in protected activity.3 Both Thorstenson and BNSF appealed the ALJ’s D. & O. to the Administrative Review Board (ARB or Board).

   On November 25, 2019, the ARB issued a Final Decision and Order

(F. D. & O.) affirming the ALJ’s D. & O.4 The Board held that the ALJ committed legal error in his contributing factor analysis but affirmed the ALJ’s finding that BNSF would have imposed the same adverse actions in the absence of Thorstenson’s FRSA-protected activity.5

  Thorstenson appealed the ARB ruling to the U.S. Court of Appeals for the

Ninth Circuit. On December 21, 2020, the Court issued an unpublished Memorandum in which it reversed and remanded the case to the Board for further proceedings consistent with its disposition.6

   On remand, the ARB affirmed the ALJ’s affirmative defense findings.7

Thorstenson again appealed the Board’s ruling to the Ninth Circuit. On March 15, 2023, the Court issued a second Memorandum in which it held that we erred in our interpretation of their prior decision. The Court stated that “substantial evidence does not support the ALJ’s conclusion that BNSF proved by clear and convincing evidence that it would have disciplined Thorstenson in the absence of his protected activity.”8 It reiterated its conclusion that, “because it was virtually impossible for Thorstenson to comply with the injury reporting rule, he was effectively disciplined for the protected activity of reporting a workplace injury.”9 The Ninth Circuit’s prior ruling “foreclosed [a] determination on remand that BNSF established its

2 Thorstenson v. BNSF Ry. Co., ALJ No. 2015-FRS-00052, slip op. at 19 (ALJ July 31, 2018). 3 Id. at 22-27. 4 Thorstenson v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019). 5 Id. at 10-12. 6 Thorstenson v. U.S. Dep’t of Lab., 831 F. App’x 842, 843 (9th Cir. 2020) (unpublished). 7 Thorstenson v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Dec. 21, 2021). 8 Thorstenson v. U.S. Dep’t of Lab., 2023 WL 2523831 at *1 (9th Cir. 2023) (unpublished). 9 Id. 3

affirmative defense by clear and convincing evidence.”10 And the Court held that, because Thorstenson has prevailed on his FRSA complaint, he is entitled to damages.

    The Ninth Circuit’s March 15, 2023 Memorandum and May 8, 2023 Mandate

is clear and unequivocal. There is no room for further adjudication on the merits. “It is clear from the administrative record that Thorstenson is entitled to damages for his termination.”11 Accordingly, in line with the Ninth Circuit’s Memorandum, we remand to the ALJ for the limited purpose of determining compensatory damages based on the existing record, to be supplemented only as to post-hearing damages.

  SO ORDERED.



                                  ____________________________________
                                  SUSAN HARTHILL
                                  Chief Administrative Appeals Judge



                                  ____________________________________
                                  THOMAS H. BURRELL
                                  Administrative Appeals Judge

10 Id.
11 Id.