Port Auth. Trans-Hudson Corp. v. Sec'y
| Decision Date | 15 January 2015 |
| Docket Number | No. 13–4547.,13–4547. |
| Citation | 776 F.3d 157 |
| Parties | PORT AUTHORITY TRANS–HUDSON CORP., Petitioner v. SECRETARY, UNITED STATES DEPARTMENT OF LABOR, as Delegated to the Administrative Review Board, Respondent * Christopher Bala, Intervenor * (Pursuant to the Clerk's Order dated 2/6/14). |
| Court | U.S. Court of Appeals — Third Circuit |
OPINION TEXT STARTS HERE
Recognized as Preempted
S.H.A. 610 ILCS 107/10; Minn. Stat. § 609.849.
Megan Lee, Esq. (argued), Port Authority of New York & New Jersey, Litigation and Corporate Security, New York, NY, for Petitioner.
Steven W. Gardiner, Esq. (argued), United States Department of Labor, Office of the Solicitor, Washington, DC, for Respondent.
Lawrence M. Mann, Esq., Alper & Mann, Bethesda, MD, for Amicus-respondent.
Ronald M. Johnson, Esq. (argued), Jones Day, Washington, DC, for Amicus-petitioner.
Charles C. Goetsch, Esq. (argued), Cahill, Goetsch & Perry, New Haven, CT, for Intervenor respondent.
Harry W. Zanville, Esq., San Diego, CA, for Amicus-respondent.
Before: SMITH, HARDIMAN, and BARRY, Circuit Judges.
Petitioner railroad Port Authority Trans–Hudson Corporation (“PATH”) challenges a decision and order of the Administrative Review Board of the United States Department of Labor, which held that PATH violated the Federal Railroad Safety Act when it suspended one of its employees for excessive absenteeism. Specifically, PATH was held to have violated an anti-retaliation provision, 49 U.S.C. § 20109(c)(2), which prohibits railroads from disciplining employees “for following orders or a treatment plan of a treating physician.” The physician's order which the employee was following related to treatment for an off-duty injury. Reading subsection (c)(2) in context, we agree with PATH that only physicians' orders which stem from on-duty injuries are covered.
Accordingly, we will grant the petition.
Intervenor Christopher Bala is a unionized signal repairman who has worked for PATH since 1990. Per PATH's agreement with Bala's union, signal repairmen of Bala's seniority are entitled to 12.5 paid holidays and 23 paid vacation days per year. Separate from this allotment of paid holidays and vacations, Bala took in excess of 600 sick and personal days through 2008.1 In 2007 alone, Bala took 82 sick days, compared to the 17 days of sick leave per year taken by unionized signalmen at PATH, on average, between 2002 and 2008. As a result of these absences, PATH issued numerous warnings to Bala over the years that if his attendance did not improve formal disciplinary action might be taken.
On June 22, 2008, Bala experienced back pain while moving boxes at his home. The next day, Bala's physician ordered him off work through July 2008. On July 14, 2008, PATH followed through on its prior warnings, and notified Bala that an internal hearing would be held regarding his absenteeism. As a result of that hearing, PATH suspended Bala for up to six days (partially contingent on improved attendance), without pay, for violating PATH's attendance policy. The suspension was based on the sum total of Bala's absences, including but not limited to those following his June 22, 2008 back injury.
Bala filed a complaint with the Respondent in this case, the United States Secretary of Labor, alleging that the suspension was retaliation for taking statutorily protected sick leave. The Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20101 et seq., provides that “[a] railroad carrier ... may not discipline ... an employee ... for following orders or a treatment plan of a treating physician.” 49 U.S.C. § 20109(c)(2).2 Although subsection (c)(2) immediately follows a provision prohibiting railroads from “deny[ing], delay[ing], or interfer[ing] with the medical or first aid treatment of an employee who is injured during the course of employment,” 49 U.S.C. § 20109(c)(1) (emphasis added), Bala argued that subsection (c)(2) applies regardless of where an employee is injured. An Administrative Law Judge (“ALJ”) agreed and held that PATH violated the FRSA by disciplining Bala for following his physician's orders not to work after his off-duty injury, 3 and awarded Bala just over $1,000 in back pay for the days he was suspended. The Administrative Review Board (“ARB”) of the United States Department of Labor (“DOL”) upheld the ALJ's award in Bala v. Port Authority Trans–Hudson Corp., ARB Case No. 12–048, 2013 WL 5872050 (Sept. 27, 2013).
In upholding the award, the ARB rejected PATH's argument that subsection (c)(2) is limited to physicians' orders stemming from on-duty injuries. However, a mere 14 months earlier, in Santiago v. Metro–North Commuter Railroad Co., ARB Case No. 10–147, 2012 WL 3255136 (July 25, 2012), a different ARB panel (albeit comprised of two of the same three members) stated just the opposite, that subsection (c)(2) “identifies protected activity as ... complying with treatment plans for work injuries.” Id. at *6 (emphasis added). The Bala panel, while citing Santiago seven times, failed to address this clear contradiction.
PATH petitioned this Court to set aside the ARB's decision and order, and presented two questions: (1) whether subsection (c)(2) applies to orders of treating physicians that stem from off-duty injuries; and (2) assuming the statute's application to off-duty injuries, whether there was sufficient evidence to find that PATH disciplined Bala because of such protected absences. We conclude that Congress intended the entirety of subsection 20109(c) to apply only when an employee sustains an injury during the course of employment. It is, therefore, unnecessary for us to reach the second question of the sufficiency of the evidence. We will grant PATH's petition.
The ARB had jurisdiction, as delegated to it by the Secretary of Labor, pursuant to 49 U.S.C. § 20109(d)(1). We have jurisdiction over this appeal pursuant to 49 U.S.C. § 20109(d)(4).
We review the ARB's decision to determine if it was, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See5 U.S.C. § 706(2)(A); Doyle v. U.S. Sec'y of Labor, 285 F.3d 243, 248–49 (3d Cir.2002). While “we exercise plenary review in deciding questions of law,” id. at 249, our review is potentially subject to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, “when we are called upon to resolve pure questions of law by statutory interpretation, we decide the issue de novo without deferring to an administrative agency that may be involved.” Patel v. Ashcroft, 294 F.3d 465, 467 (3d Cir.2002) ().
Before the FRSA was amended by the Rail Safety Improvement Act of 2008 (“RSIA”),449 U.S.C. § 20109 was exclusively an anti-retaliation provision. Subsections (a) and (b) of § 20109 provided (and still provide) protections to employees who assist in investigations into railroad safety, refuse to violate laws pertaining to railroad safety, notify a railroad or the Secretary of Transportation about “work-related” injuries or illnesses, and report and/or refuse to work in hazardous conditions. The RSIA inserted a new subsection (c), containing both an anti-retaliation provision, subsection (c)(2), and a more direct worker safety provision, subsection (c)(1):
(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). We are the first federal appeals court to consider a case involving this subsection.5
We are confronted here with a statute that specifically references at subsection (c)(1) “injur[ies] during the course of employment,” while subsection (c)(2) does not. PATH argues that the “treatment” in subsection (c)(2) “refers back” to the “treatment” in subsection (c)(1) and thereby incorporates the “during the course of employment” limitation into subsection (c)(2).6 The DOL, contending that the two paragraphs are “distinct” provisions, argues that the absence of the “during the course of employment” limitation in subsection (c)(2) reflects a deliberate choice by Congress to extend protections even to workers who sustain injuries off-duty. Since, under subsection (c)(2), a physician's order could include a direction that an employee not work (as the physician's order did in this case), and because there is no temporal limitation in the statute, the DOL's interpretation would functionally confer indefinite sick leave on all railroad employees who can obtain a physician's note.7
We agree with PATH that the “during the course of employment” limitation applies to subsection (c)(2). As we explain below, because subsection (c)...
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