Johnson v. Grand Trunk Western Railroad Co. (agency decision, January 31, 2019)

Plain-English summary

Justin Johnson alleged that Grand Trunk Western Railroad retaliated against him in violation of the Federal Railroad Safety Act's whistleblower provisions. OSHA found no reasonable cause, and an ALJ later granted the railroad summary decision and dismissed the complaint. Johnson petitioned the Board for review, then elected to file his claim for de novo review in federal district court. The governing statute and regulation permit that filing when the Department has not issued a final decision within 210 days and the complainant has not delayed the case in bad faith. Because Johnson filed the federal action, the Board dismissed his administrative complaint.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109; 29 C.F.R. §§ 1982.110(a) and 1982.114
• Outcome: Administrative complaint dismissed after the complainant filed a de novo federal-court action.
• Key point: An eligible FRSA complainant's election to proceed in federal district court ended the parallel Board proceeding.

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:


  JUSTIN JOHNSON,                                       ARB CASE NO. 2019-0003

                  COMPLAINANT,                          ALJ CASE NO. 2018-FRS-00010

         v.                                             DATE: January 31, 2019

  GRAND TRUNK WESTERN RAILROAD CO.,

                  RESPONDENT.

  BEFORE:         THE ADMINISTRATIVE REVIEW BOARD


  Appearances:

  For the Complainant:
         Robert B. Thompson, Esq.; Harrington, Thompson, Acker & Harrington, Chicago,
         Illinois

  For the Respondent:
         Noah G. Lipschultz, Esq.; Littler Mendelson, P.C.; Kansas City, Missouri

  Before: William T. Barto, Chief Administrative Appeals Judge



                             ORDER DISMISSING COMPLAINT

          On November 4, 2015, the Complainant, Justin Johnson, filed a complaint with the United
  States Department of Labor’s Occupational Safety and Health Administration (OSHA) alleging
  that the Respondent, Grand Trunk Western Railroad (GTW), had retaliated against him in violation
  of the whistleblower protection provisions of the Federal Railroad Safety Act of 1982 (FRSA) 1

  1
         49 U.S.C.A. § 20109 (Thomson Reuters 2018).

USDOL/OALJ REPORTER PAGE 1
 and its implementing regulations. 2 Upon investigation, OSHA found that there was no reasonable
cause to believe that GTW violated the FRSA. Johnson requested review of OSHA’s
determination before a Department of Labor Administrative Law Judge. On October 23, 2018,
the presiding ALJ issued a Decision and Order granting GTW’s motion for summary decision and
dismissed Johnson’s complaint. 3

          On November 2, 2018, Johnson filed a petition for review with the Administrative Review
  Board, which the Board accepted for review on November 6, 2018. 4 While the case was pending
  with the Board, Johnson informed the Board of his election to file an action in federal court. The
  Board received a copy of a federal complaint filed in the United States District Court for the
  Eastern District of Michigan as authorized by 49 U.S.C.A. § 20109(d)(3) for de novo review of
  the claim currently pending before the Board. If the Board has not issued a final decision within
  210 days of the date on which the complainant filed the complaint, and there is no showing that
  the complainant has acted in bad faith to delay the proceedings, the complainant may bring an
  action at law or equity for de novo review in the appropriate United States district court, which
  will have jurisdiction over the action without regard to the amount in controversy. 5 Accordingly,
  given that Johnson has filed a de novo complaint in this action in federal district court as provided
  in 49 U.S.C.A. § 20109(d)(3) and 29 C.F.R. § 1982.114, we DISMISS Johnson’s complaint.

         SO ORDERED.



                                                WILLIAM T. BARTO
                                                Chief Administrative Appeals Judge




  2
         29 C.F.R. Part 1982 (2018).
  3
         Johnson v. Grand Trunk Western R.R. Co., ALJ No. 2018-FRS-010 (ALJ Oct. 23, 2018).
  4
         The Secretary of Labor has delegated to the Board authority to issue final agency decisions
  under the FRSA. See Secretary’s Order 02-2012 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 77 Fed. Reg. 69,378 (Nov. 16, 2012); 29 C.F.R.
  § 1982.110(a).
  5
         49 U.S.C.A. § 20109(d)(3); 29 C.F.R. § 1982.114.

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