Robert Powers v. Usdol ( 2018 )

FILED
MAY 22 2018
NOT FOR PUBLICATION MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT POWERS, 17-70676
Petitioner, ARB Case No. 13-034
Department of Labor
v.
U.S. DEPARTMENT OF LABOR, MEMORANDUM*
Respondent,
UNION PACIFIC RAILROAD
COMPANY (UNION PACIFIC),
Respondent-Intervenor.
On Petition for Review of an Order of
the United States Department of Labor
Submitted May 8, 2018**
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: RAWLINSON and NGUYEN, Circuit Judges, and GARBIS, Senior
District Judge.***
Robert Powers petitions for review of a Final Decision and Order of the
Department of Labor’s Administrative Review Board (“ARB”), affirming the
Administrative Law Judge’s (“ALJ”) order of dismissal of Powers’ retaliation
claim under the Federal Railroad Safety Act (“FRSA”). We have jurisdiction
pursuant to 49 U.S.C. § 20109(d)(4), and we affirm.
In May 2007, Powers notified his employer, Union Pacific Railroad Co.
(“Union Pacific”), of a work-related injury–an action that is protected under the
FRSA, 48 U.S.C. § 20109(a)(4). After being terminated in September 2008,
Powers filed a complaint with the Occupational Safety and Health Administration
(“OSHA”) against Union Pacific under 49 U.S.C. § 20109(d)(1). OSHA
investigated the complaint and made a preliminary finding of reasonable cause that
a violation had occurred. Union Pacific timely requested a de novo hearing, which
was held before an ALJ.
The ALJ made a factual finding that Union Pacific’s decision to terminate
Powers was based on its reasonable belief that Powers had been dishonest about
his activities while on medical leave, and the reporting of his work injury was not a
***
The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
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contributing factor to the termination. Reviewing the ALJ’s determination under
the substantial evidence standard, the ARB affirmed, dismissing Powers’
complaint.
We review the ARB’s decision “in accordance with the Administrative
Procedure Act, under which the ARB’s legal conclusions must be sustained unless
they are arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law, and its findings of fact must be sustained unless they are
unsupported by substantial evidence in the record as a whole.” Calmat Co. v. U.S.
Dep’t of Labor, 364 F.3d 1117, 1121 (9th Cir. 2004) (citing 5 U.S.C. § 706). “This
standard of review is ‘highly deferential, presuming the agency action to be valid
and affirming the agency action if a reasonable basis exists for its decision.’” Nat’l
Mining Ass’n v. Zinke, 877 F.3d 845, 866 (9th Cir. 2017) (quoting Nw. Ecosystem
Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007)).
Substantial evidence supports the ALJ’s conclusions, including, inter alia,
that Powers continued to work for Union Pacific for 16 months before he was
fired; Union Pacific provided accommodations for the work injury during that
time; credible testimony established that Union Pacific officials reasonably
believed that Powers had been dishonest; and credible evidence established that
Powers had engaged in physical activities that were inconsistent with his medical
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restrictions. The ALJ’s credibility assessments were reasonable, and all evidence
was properly considered. We do not substitute our judgment for that of the
agency. Lockert v. U.S. Dep’t of Labor, 867 F.2d 513, 520 (9th Cir. 1989).
We do not consider Powers’ argument related to his complaint filed under
the Federal Employers’ Liability Act as a protected activity because it was not
raised in the administrative proceedings below. Balser v. Dep’t of Justice, 327
F.3d 903, 908 (9th Cir. 2003).
PETITION DENIED.
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