Grand Trunk W. R.R. Co. v. U.S. Dep't of Labor, 17-3083

• Citation: 875 F.3d 821
• Decision Date: 20 November 2017
• Docket Number: No. 17-3083,17-3083
• Parties: GRAND TRUNK WESTERN RAILROAD COMPANY, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Administrative Review Board, Respondent, Webster Williams, Jr., Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

875 F.3d 821

GRAND TRUNK WESTERN RAILROAD COMPANY, Petitioner,

v. UNITED STATES DEPARTMENT OF LABOR, Administrative Review Board, Respondent,Webster Williams, Jr., Intervenor.

No. 17-3083

United States Court of Appeals, Sixth Circuit.

Argued: October 11, 2017

Decided and Filed: November 20, 2017

ARGUED: Holly M. Robbins, Littler Mendelson, P.C., Minneapolis, Minnesota, for Petitioner. Sarah Kay Marcus, United States Department of Labor, Washington, D.C., for Respondent. Robert B. Thompson, Harrington, Thompson, Acker & Harrington, LTD., Chicago, Illinois, for Intervenor. ON BRIEF: Holly M. Robbins, Joseph D. Weiner, Littler Mendelson, P.C., Minneapolis, Minnesota, for Petitioner. Sarah Kay Marcus, United States Department of Labor, Washington, D.C., for Respondent. Robert B. Thompson, Robert E. Harrington, III, Harrington, Thompson, Acker & Harrington, LTD., Chicago, Illinois, for Intervenor. Harry W. Zanville, La Mesa, California, Jacqueline M. Holmes, Jones Day, Washington, D.C., for Amici Curiae.

Before: KEITH, McKEAGUE, and STRANCH, Circuit Judges.

McKEAGUE, J., delivered the opinion of the court in which KEITH and STRANCH, JJ., joined. STRANCH, J. (pg. 831–32), delivered a separate concurring opinion.

McKEAGUE, Circuit Judge.

Despite having had its position derailed by every federal court to date, the Department of Labor's Administrative Review Board steams ahead. The Board interprets a retaliation clause in the Federal Railroad Safety Act (FRSA)—located in a recent amendment regarding "Prompt medical attention," 49 U.S.C. § 20109(c) —to provide sick leave to all railroad employees for off-duty injuries and illnesses.

In this case, the Board's broad interpretation meant Webster Williams, Jr.—a Grand Trunk employee with a non-work-related history of anxiety and depression—was granted relief from his termination for six collectively-bargained-for-as-unexcused absences because he was "following ... a treatment plan of [his] treating physician." 49 U.S.C. § 20109(c)(2).

Traditional tools of statutory interpretation lead us to a different conclusion: subsection (c)(2), just like its preceding subsection (c)(1), applies only to on-duty injuries. Thus, we grant the petition and remand with instructions that the proceeding below be dismissed.

I

Webster Williams, Jr. has a lifelong history of anxiety and depression. This history pre-dates his employment with Grand Trunk Western Railroad Company (Grand Trunk), where Williams worked as a locomotive engineer from 1995 until his termination for excessive absences in 2012.

In 2006, Williams began seeing Dr. John Bernick for a variety of conditions, including hypertension, insomnia, anxiety, and depression. As a part of his treatment plan, Dr. Bernick prescribed Xanax for Williams to take as a "stop gap" measure when Williams felt he needed to take the medication for his anxiety and depression. But he did so with two additional instructions: first, he referred Williams to a psychiatrist for further treatment; second, he advised: Williams that in addition to taking Xanax, he "shouldn't work" during an anxiety episode if he would not feel safe. In December 2011, Williams missed eight days of work because of his anxiety and depression. Although Williams's absences comported with at least part of Dr. Bernick's treatment plan for his medical conditions, Grand Trunk deemed six of these missed work days to be "unexcused absences" and terminated Williams in January 2012 for excessive absenteeism.¹

On March 1, 2012, Williams filed a complaint with the Occupational Safety and Health Administration (OSHA) for wrongful retaliation and termination. On February 6, 2013, OSHA dismissed the complaint because Williams's absences for a "non-work-related illness" did not constitute qualifying "protected activity."

Williams appealed OSHA's dismissal to an administrative law judge (ALJ) on February 25, 2013. After an evidentiary hearing and a review of the parties' briefs, on August 11, 2014, the ALJ held that Williams had engaged in protected activity because he was following the treatment plan of his physician and the protected activity was a factor in Grand Trunk's decision to terminate Williams's employment. Thus, the ALJ awarded damages and attorney's fees to Williams. The ALJ based his finding that Williams's treatment plan was protected—even though it was for an off-duty illness—on the Administrative Review Board's holding in Bala v. Port Authority Trans-Hudson Corp ., No. 12-048, 2013 WL 5872050 (Admin. Rev. Bd. Sept. 27, 2013).² Grand Trunk appealed the ALJ's decision to the Board on August 21, 2014.

The Board affirmed the ALJ's decision in Williams v. Grand Trunk W. R.R. Co. , No. 2016 WL 7742872 (Admin. Rev. Bd. Dec. 5, 2016), and declined to apply the Third Circuit's decision in Port Authority Trans-Hudson Corp. v. Sec'y, U.S. Dep't of Labor , 776 F.3d 157, 161–62 (3d Cir. 2015) ( PATH ), which held that § 20109(c) only applies to treatment plans for on-duty injuries. This petition for review followed.

II

"A petition for review of an order entered by the Board pursuant to the FRSA is governed by the Administrative Procedure Act." Norfolk S. Ry. Co. v. Perez , 778 F.3d 507, 511 (6th Cir. 2015) (citing 49 U.S.C. § 20109(d)(4) ). The primary question this case presents is one of statutory interpretation. This is a question of law we review de novo. Id. at 511 ("[T]he Board's legal conclusions are reviewed de novo.").

Everyone agrees that the FRSA was amended in 2008 to provide railroad workers with additional protections for on-duty injuries. But does a retaliation provision in the FRSA—nested in a section providing for "Prompt medical attention," 49 U.S.C. § 20109(c) —encompass a physician's treatment plan for off-duty injuries? The Board argues it does; Grand Trunk argues it does not.

"We begin, as in any case of statutory interpretation, with the language of the statute." CSX Transp., Inc. v. Ala. Dep't of Revenue , 562 U.S. 277, 283, 131 S.Ct. 1101, 179 L.Ed.2d 37 (2011) (citing Hardt v. Reliance Standard Life Ins. Co. , 560 U.S. 242, 251, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010) ). The relevant statutory section provides:

(c) Prompt medical attention. —

(1) Prohibition. —A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment . If transportation to a hospital is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care.

(2) Discipline. —A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier's refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to Federal Railroad Administration medical standards for fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier's medical standards for fitness for duty. For purposes of this paragraph, the term "discipline" means to bring charges against a person in a disciplinary proceeding, suspend, terminate, place on probation, or make note of reprimand on an employee's record.

49 U.S.C. § 20109(c) (emphasis added).

Of course, "[i]f the statutory language is plain, we must enforce it according to its terms." King v. Burwell , ––– U.S. ––––, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (citing Hardt , 560 U.S. at 251, 130 S.Ct. 2149 ); see also Conn. Nat'l Bank v. Germain , 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ("When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’ " (quoting Rubin v. United States , 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981) )). "But oftentimes the ‘meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.’ " King , 135 S.Ct. at 2489 (quoting FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ).

"[W]hen placed in context," id. , the plain meaning of subsection (c)(2), which prohibits "an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician," proves elusive.³ Thus, we must rely upon "traditional tools of statutory interpretation." Sierra Club v. EPA , 793 F.3d 656, 665 (6th Cir. 2015). The Board primarily cites to the so-called Russello structural canon; Grand Trunk relies upon other textual context and structure, the absurdity canon, and the legislative history. These tools provide a framework for our analysis.

A

The Board's argument depends heavily on one textual observation: the language under subsection (c)(1) includes a limitation—"A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment "—while subsection (c)(2) contains no such limitation.

The Board cites to Russello v. United States , 464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) and its progeny, which explained that "[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Id. at 23, 104 S.Ct. 296 ; see, e.g. , Hardt , 560 U.S. at 252, 130 S.Ct. 2149 ; Allison Engine Co. v. U.S. ex rel. Sanders , 553 U.S. 662, 671, 128 S.Ct. 2123, 170 L.Ed.2d 1030 (2008) ; see also United States v. Detroit Med. Ctr. , 833 F.3d 671, 678 (6th Cir. 2016) ; Moses v. Providence Hosp. & Med....