Barboza v. BNSF Railway Co. (agency decision, January 28, 2020)

Plain-English summary

Robert Barboza alleged that BNSF Railway retaliated against him for protected activity. An ALJ granted summary decision because Barboza did not show an adverse action within the 180-day limitations period, and the Board affirmed. The Board denied an initial reconsideration request on January 17, 2020. Barboza filed another reconsideration motion eight days later. The Board denied the second motion for the reasons stated in its earlier reconsideration order and identified the route for judicial review.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109(d)(2)(A)(ii); 29 C.F.R. § 1982.112
• Outcome: The second motion for reconsideration was denied.
• Key point: Repeating a reconsideration request does not reopen a final FRSA dismissal when the Board has already found no qualifying ground for reconsideration.

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:

  ROBERT A. BARBOZA,                               ARB CASE NO.   2018-0076

                  COMPLAINANT,                     ALJ CASE NO.   2017-FRS-00111

         v.                                        DATE: January 28, 2020

  BNSF RAILWAY
  COMPANY,

                  RESPONDENT.

  Appearances:

  For the Complainant:
        Robert A. Barboza; pro se; Corona, California

  For the Respondent:
        Keith M. Goman, Esq., and Gillian Dale, Esq.; Hall & Evans, L.L.C.;
        Denver, Colorado; and Paul S. Balanon, Esq.; BNSF Railway
        Company

  Before: Thomas H. Burrell, Acting Chief Administrative Appeals Judge;
  James A. Haynes and Heather C. Leslie, Administrative Appeals Judges


                      ORDER DENYING RECONSIDERATION

        PER CURIAM. This case arises under the Federal Rail Safety Act of 1982
  (FRSA). 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 (2019) and 29 C.F.R. Part 18, Subpart A
  (2019). Complainant Robert Barboza filed a complaint alleging that the Respondent,
  BNSF Railway Company, retaliated against him in violation of the FRSA’s
  whistleblower protection provisions because he engaged in protected activity. On
  August 29, 2018, a Department of Labor Administrative Law Judge (ALJ) issued a

USDOL/OALJ REPORTER PAGE 1
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  Decision and Order Granting Summary Decision because there was a failure of
  proof that an adverse action occurred within the 180-day limitations period.
  49 U.S.C. § 20109(d)(2)(A)(ii). Complainant appealed the ALJ’s decision to the
  Administrative Review Board (ARB or Board) and we concluded that the ALJ’s
  grant of summary decision was a reasoned ruling based on the undisputed facts and
  the applicable law.

        On December 23, 2019, Complainant filed a Motion for Reconsideration of the
  Board’s order. On January 17, 2020, we denied reconsideration because we
  concluded that none of the factors supporting reconsideration were satisfied.

        On January 25, 2020, Complainant filed a “Motion for Petition for
  Reconsideration.” In this motion he argues that grounds for reconsideration exist.
  For the reasons stated in our Order Denying Reconsideration we deny
  Complainant’s January 25 motion.

         Complainant may appeal our decision by filing a timely petition for review in
  the United States Court of Appeals for the circuit in which the violation allegedly
  occurred or the circuit in which Complainant resided on the date of the alleged
  violation. 29 C.F.R. §1982.112 (Judicial review).

                                    CONCLUSION

      Accordingly, Complainant’s Motion for Petition for Reconsideration is
  DENIED.

  SO ORDERED.

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