Stephen Thorstenson v. Usdol ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN THORSTENSON, No. 20-70211
Petitioner,
v. MEMORANDUM*
U.S. DEPARTMENT OF LABOR,
Respondent,
BNSF RAILWAY COMPANY,
Intervenor.
On Petition for Review of an Order of the
Department of Labor
Argued and Submitted December 8, 2020
Seattle, Washington
Before: McKEOWN and WATFORD, Circuit Judges, and ROTHSTEIN,**
District Judge.
Petitioner Stephen Thorstenson challenges the final decision and order of
Respondent U.S. Department of Labor’s Administrative Review Board (“ARB”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
upholding an Administrative Law Judge ruling denying Thorstenson relief in his
action alleging that Intervenor BNSF Railway Co. (“BNSF”) retaliated against him
in violation of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. §§ 20101 et
seq. We have jurisdiction under 49 U.S.C. § 20109(d)(4). We reverse and
remand.
The ARB’s decision erred in two respects. First, the ARB rejected
Thorstenson’s contention that BNSF’s enforcement of its timely injury reporting
policy was so unreasonable and unduly burdensome that it constituted retaliation
when enforced on these facts. Notifying the railroad carrier of a work-related
personal injury is an enumerated protected activity under the FRSA. See 49 U.S.C.
§ 20109(a)(4). A violation to the FRSA occurs where, as here, an employee is
disciplined for failure to comply with a railroad carrier’s time or manner reporting
rule even though its requirements could not reasonably be met. The following
circumstances made it virtually impossible for Thorstenson to know he had
experienced a new injury in time to comply with BNSF’s 72-hour reporting rule:
the injury presented as an aggravation to an existing injury which Thorstenson had
already reported, his injury did not require him to miss work until after the 72-hour
period had expired, and a medical expert examining him within the 72-hour period
did not identify his symptoms as a new injury or take him off work. The fact that
BNSF staff, including Thorstenson’s supervisor, initially did not know that
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Thorstenson’s symptoms required him to file a new injury report further
underscores the unreasonableness of expecting Thorstenson to have known he was
required to file such a report and disciplining him because he did not.
Accordingly, because it was virtually impossible for Thorstenson to comply with
the injury reporting rule, he was effectively disciplined for the protected activity of
reporting a workplace injury.
Second, the ARB imposed a new burden of proof for causation under which
FRSA claimants must demonstrate that the protected activity was a proximate
cause of the adverse action. A proximate cause standard is inconsistent with this
circuit’s law regarding the requirements of the FRSA, which requires plaintiffs to
prove only that their protected conduct was a “‘factor, which alone or in
connection with other factors, tended[ed] to affect in any way the outcome of the
decision.’” Frost v. BNSF Ry. Co., 914 F.3d 1189, 1195 (9th Cir. 2019) (quoting
Rookaird v. BNSF Ry. Co., 908 F.3d 451, 461 (9th Cir. 2018); cf. CSX Transp.,
Inc. v. McBride, 564 U.S. 685, 694 (2011) (“[The Federal Employers’ Liability
Act] . . . did not incorporate any traditional common-law formulation of proximate
causation . . . . Whether the railroad’s negligent act was the immediate reason for
the [injury] . . . was an irrelevant consideration.” (internal quotation marks and
alterations omitted)).
Accordingly, we reverse and remand to the ARB for further proceedings
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consistent with this disposition.
REVERSED and REMANDED.
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