Chambers v. BNSF Railway Co. (agency decision, June 11, 2021)

Plain-English summary

Gregory Chambers alleged that BNSF Railway terminated him for reporting an injury in violation of the Federal Railroad Safety Act. An ALJ dismissed the complaint, and the Board affirmed because substantial evidence supported BNSF's affirmative defense. Chambers then sought reconsideration by repeating points he had raised in the appeal and arguing that the Board had not addressed every issue. The Board found no newly discovered material fact, later-occurring material fact, change in law, or failure to consider a material fact already presented. It denied reconsideration and left the dismissal in place.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109; 29 C.F.R. § 1982.112
• Outcome: Motion for reconsideration denied; prior affirmance of dismissal remains in place.
• Key point: Repeating previously considered arguments does not satisfy the Board's limited grounds for reconsideration.

Full text (DOL official public release)

                                     Administrative Review Board

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

In the Matter of:

GREGORY CHAMBERS,                                 ARB CASE NO.        2019-0074

              COMPLAINANT,                        ALJ CASE NO.        2018-FRS-00086

       v.                                         DATE: June 11, 2021


BNSF RAILWAY COMPANY,

              RESPONDENT.

Appearances:

For the Complainant:
      Joseph L. Bauer, Jr., Esq.; The Bauer Law Firm, LLC; Saint Louis,
      Missouri

For the Respondent:
      Susan J. Travis, Esq.; Robbins Travis PLLC; Southlake, Texas; and
      Paul S. Balanon, Esq.; BNSF Railway Company; Fort Worth, Texas

Before: James D. McGinley, Chief Administrative Appeals Judge, James A.
Haynes and Randel K. Johnson, Administrative Appeals Judges


            ORDER DENYING MOTION FOR RECONSIDERATION

       PER CURIAM. This case arises under the employee protection provisions of the
Federal Railroad Safety Act of 1982 (FRSA).1 Gregory Chambers (Complainant)
filed a complaint alleging that BNSF Railway Company (Respondent or BNSF)

1
       49 U.S.C. § 20109 (2008), as implemented by federal regulations at 29 C.F.R. Part
1982 (2020) and 29 C.F.R. Part 18, Subpart A (2020).
                                         2

violated the FRSA by terminating his employment for reporting an injury. On July 23, 2019, an Administrative Law Judge (ALJ) issued a Decision & Order Dismissing Complaint based upon his findings that Complainant did not meet his burden for contributing factor causation and that Respondent proved its affirmative defense. On March 5, 2021, we affirmed the ALJ’s decision because substantial evidence in the record supports the ALJ’s finding as to the affirmative defense.

  On April 27, 2021, Complainant filed a Motion for Reconsideration of the

Board’s Decision and Order. On May 6, 2021, BNSF filed a Response in Opposition to Complainant’s Motion for Reconsideration. For the following reasons, we deny Complainant’s Motion for Reconsideration.

                                   DISCUSSION

   The Administrative Review Board (ARB or Board) is authorized

to reconsider a decision upon receiving a motion for reconsideration within a reasonable time of the date on which the decision was issued.2 We will reconsider our decisions under limited circumstances, which include: (i) material differences in fact or law from those presented to the Board of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the Board’s decision, (iii) a change in the law after the Board’s decision, or (iv) failure to consider material facts presented to the Board before its decision.3

   Complainant has failed to demonstrate a ground upon which the Board will

grant reconsideration. Complainant has not presented any new evidence or a change in controlling law. Instead, Complainant argues the Board did not address every issue raised by Complainant, reemphasizing various points previously raised on appeal before the Board. However, the Board has already carefully considered

   2      Henin v. Soo Line R.R. Co., ARB No. 2019-0028, ALJ No. 2017-FRS-00011, slip

op. at 3 (ARB Mar. 22, 2019) (citing Wimer-Gonzales v. J.C. Penney Corp., Inc., ARB No. 2010- 0148, ALJ No. 2010-SOX-00045, slip op. at 2-3 (ARB Feb. 7, 2012)).
3 Id.
3

the evidentiary record as a whole and the parties’ briefs on appeal, including the arguments Complainant highlights again in his Motion for Reconsideration.4

  None of Complainant’s arguments fall within any of the four limited

circumstances under which we will reconsider our decisions. Accordingly, we DENY the Complainant’s Motion for Reconsideration.5

  SO ORDERED.




  4         Chambers v. BNSF Ry. Co., ARB No. 2019-0074, ALJ No. 2018-FRS-00086,

slip op. at 3 (ARB Mar. 5, 2021).
5 Complainant may petition for review of the Board’s Decision. See Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board (Secretarial review)), 85 Fed. Reg. 13186, 13188 at (6)(b)(1) (Mar. 6, 2020); 29 C.F.R. § 1982.112 (Judicial review).