Dakota, Minn. & E. R.R. Corp. v. U.S. Dep't of Labor Admin. Review Bd.

• Decision Date: 30 January 2020
• Docket Number: No. 18-2888,18-2888
• Citation: Dakota, Minn. & E. R.R. Corp. v. U.S. Dep't of Labor Admin. Review Bd., 948 F.3d 940 (8th Cir. 2020)
• Parties: DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION d/b/a Canadian Pacific Petitioner v. U.S. DEPARTMENT OF LABOR ADMINISTRATIVE REVIEW BOARD Respondent Mark Riley Claimant - Intervenor
• Court: U.S. Court of Appeals — Eighth Circuit

948 F.3d 940

DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION d/b/a Canadian PacificPetitioner

v.U.S. DEPARTMENT OF LABOR ADMINISTRATIVE REVIEW BOARDRespondent

Mark Riley Claimant - Intervenor

No. 18-2888

United States Court of Appeals, Eighth Circuit.

Submitted: October 15, 2019

Filed: January 30, 2020

Tracey Holmes Donesky, Matthew C. Tews, Stinson, LLP, Minneapolis, MN, for Petitioner.

Megan Elizabeth Guenther, Mary Elizabeth McDonald, U.S. Department of Labor, Office of the Solicitor, Fair Labor Standards Division, Washington, DC, for Respondent.

Corey Barrett Kronzer, Rome & Arata, Pearland, TX, for Claimant - Intervenor.

Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.

LOKEN, Circuit Judge.

Dakota, Minnesota and Eastern Railroad Corp., doing business as Canadian Pacific ("CP"), petitions for review of a final decision of the Department of Labor’s Administrative Review Board("ARB") affirming the decision of the administrative law judge ("ALJ").The ARB ruled that CP violated the whistleblower retaliation provisions of the Federal Railroad Safety Act ("FRSA") when it suspended locomotive engineer Mark Riley for his untimely reporting of a "work-related personal injury" or a "hazardous safety or security condition."49 U.S.C. §§ 20109(a)(4), (b)(1)(A), (d).The statute requires an employee claimant to prove that protected activity such as reporting an injury or unsafe condition was a "contributing factor in the [employer’s] unfavorable personnel action."§ 42121(b)(2)(B)(i).CP argues the ARB and the ALJ committed legal error in refusing to follow Eighth Circuit rulings that "the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity."Kuduk v. BNSF Ry., 768 F.3d 786, 791(8th Cir.2014).We agree and therefore grant the petition for review.

I.Background

At 2:00 a.m. on July 5, 2012, a unit train consisting of three locomotives and eighty one cars loaded with ethanol arrived at CP’s large terminal in Bensenville, Illinois, a Chicago suburb south of O’Hare Airport.The train’s crew was locomotive engineer Riley at the controls and assistant locomotive engineer John Bollman, both based in Dubuque, Iowa.The weather was hot, the old locomotive noisy, and Riley was instructed to bring the train in on track five of the Dog Yard, an unfamiliar location.With Bollman riding on the front of the locomotive to line up switches, Riley moved the train slowly from switch to switch until he stopped at a switch and yelled to Bollman to tell him if this was track four or track five.Bollman did not answer or Riley could not hear his answer so Riley leaned out the window and yelled at Bollman repeatedly.According to Riley, Bollman then entered the locomotive, hit Riley in the chest with his lantern, punched him on the top of the head, and screamed at him.According to Bollman, Riley was shouting expletives and insults, so Bollman went into the cab to tell him to stop, accidentally hit Riley with the lantern when it slipped out of his hand, and did not punch Riley.The two calmed down, finished yarding the train, and went to their hotel rooms at 4:25 a.m. for a mandatory twelve-hour rest period.Riley did not report the altercation with Bollman to any CP supervisors in Bensenville.

Riley testified that, in his hotel room, he attempted to call his immediate supervisor in Dubuque, trainmaster Jeremiah Christensen, sent a text telling a co-worker about the altercation, and fell asleep.In a 12:20 p.m. phone call, Riley told Christensen he had been assaulted and did not want to work with Bollman again.Christensen said, "I need you to make the official report so that I can deal with him."Riley told Christensen he did not want to get Bollman fired and needed time to think about making a formal report.Riley then called several co-workers, friends, and his brother to ask for advice about whether to make a report; all but one said he should report the assault.Riley called Christensen back at 2:38 p.m. and said, "Okay, I’ll make your formal complaint."He later discovered a bruise on his chest where the lantern hit him and added that to his complaint.

CP immediately brought Riley and Bollman back to Dubuque and interviewed them separately.Riley accused Bollman of assault.Bollman made a cross complaint against Riley.On July 6, Mike Morris, a CP trainmaster based in Mason City, Iowa, wrote Riley and Bollman to advise that Morris would conduct a "formal investigation session" on July 16"to ascertain the facts and determine your responsibility, if any, [for] your alleged involvement in a physical altercation ... and your alleged failure to promptly report said incident to your supervisor."Consistent with the governing collective bargaining agreement, Bollman was represented at the hearing by a union representative and Riley by a trusted co-worker.After the hearing, Morris recommended to CP’s decision makers that both Riley and Bollman be terminated for multiple CP rule violations, including late reporting and engaging in physical and verbal altercations.

On August 21, CP sent Riley a decision letter stating that "the transcript established your failure to promptly report the incident," dismissal "is certainly warranted" because Riley had been returned to service in February 2010 under a "last chance" agreement, but CP "decided to exercise management discretion and allow you to remain an employee."¹However, the time Riley was withheld from service during the investigation (forty seven days)"will be assessed as formal discipline."That same day, CP terminated Bollman for violating the General Code of Operating Rules and the Safety Rule Book for Field Operations.The union appealed Riley’s discipline to the Public Law Board, an arbitration panel established under the Railway Labor Act.The panel upheld the discipline but reduced it to a fifteen day suspension.

Riley filed this FRSA retaliation claim with the Department’s Occupational Safety and Health Administration ("OSHA").See29 C.F.R. § 1982.103 -04.To establish a prima facie case of unlawful FRSA retaliation, an employee must show, by a preponderance of the evidence: "(i)he engaged in a protected activity; (ii)[the rail carrier] knew or suspected, actually or constructively, that he engaged in the protected activity; (iii)he suffered an adverse action; and (iv) the circumstances raise an inference that the protected activity was a contributing factor in the adverse action."Kuduk, 768 F.3d at 789.In November 2013, after an investigation, the Secretary of Labor’s Acting Regional Administrator dismissed Riley’s complaint, finding that his protected activity of filing an injury report was not a contributing factor in the adverse disciplinary action, and that CP established a legitimate, non-retaliatory reason for its disciplinary decision.Although Riley was entitled to file a "kick-out" action in district court for de novo review because the Secretary had not acted on his complaint in 210 days, see49 U.S.C. § 20109(d)(3), he instead petitioned for administrative review and a de novo hearing before a Department of Labor ALJ.See29 C.F.R. § 1982.106.

At the evidentiary hearing, Riley introduced no evidence that the CP decision makers, or any other supervisor, intentionally discriminated against Riley because he engaged in the protected activity of filing an injury or unsafe condition report.Rather, in his Closing Brief, Riley argued:

[CP] only found out about the incident involving Mr. Riley and Mr. Bollman because Mr. Riley reported the attack and his injury to [CP].It logically follows that if Mr. Riley had not reported the incident, [CP] would not have known about it and could not have taken any adverse action against Mr. Riley. ...Clearly, Mr. Riley’s reports were a contributing factor to the adverse actions [CP] took against Mr. Riley.

Citing only prior decisions by the ARB and other circuits, including Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152(3d Cir.2013), the ALJ adopted this argument and ruled that Riley had satisfied the contributing-factor element of his prima facie case:

Complainant need not demonstrate the existence of a retaliatory motive on the part of [CP] in order to establish that his disclosure of the workplace injury was a contributing factor to his suspension. ...Neither motive nor animus is required to prove causation under FRSA as long as protected activity contributed in any way to the adverse action.

... [CP] became aware of the injury when [Riley] came forward, albeit several hours later.In other words, Mr. Riley’s report of the attack and resulting injury influenced [CP’s] decision to investigate the timeliness of Mr. Riley’s reporting of the underlying facts of how his injury occurred.Where such a report sets the subsequent investigation and disciplinary process in motion, this chain of events is sufficientevidence of a contributing factor .Therefore, I find the protected activity was a contributing factor in the adverse personnel action in this case.

...[A] case is established here because the basis for [Riley’s] suspension cannot be discussed without reference to the protected activity.Simply put, [Riley’s] reporting of the injury set in motion the chain of events eventually resulting in the investigation and is inextricably intertwined with the eventual adverse employment action.

(Emphasis added; citations omitted.)The ALJ concluded that CP failed to establish an affirmative defense and therefore Riley’s disciplinary suspension violated 49 U.S.C. §§ 20109(a)(4), (b)(1)(A).

On appeal to the ARB, CP argued the ALJ erred in adopting a chain-of-events analysis contrary to controlling Eighth Circuit precedent.The ARB nonetheless upheld the ALJ’s analysis of the contributing factor issue:

Because it is impossible to separate the cause of Riley’s discipline -- for filing his injury report late -- from his protected activity of filing the injury report,

...