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Petition for review from an Order of the Department of Labor (except OSHA). (LABR No. 13-006).
Stephen F. Fink, Thompson & Knight, Dallas, Texas (Bryan Neal; Micah R. Prude, Thompson & Knight, LLP, Dallas, Texas, on the briefs), for Petitioner.
Sarah J. Starrett, Attorney (M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, William C. Lesser, Deputy Associate Solicitor, and Megan E. Guenther, Counsel for Whistleblower Programs, with her on the brief), U.S. Department of Labor, Washington, D.C., for Respondent.
Newton G. McCoy (Robert J. Friedman and C. Marshall Friedman, C. Marshall Friedman, P.C., Saint Louis, Missouri, with him on the brief), St. Louis, Missouri, for Intervenor.
Before KELLY, LUCERO, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
BNSF Railway petitions for review of the Administrative Review Board's (the Board) decisions (1) affirming an Administrative Law Judge's (ALJ) finding that BNSF violated the Federal Railroad Safety Act (FRSA or the Act), 49 U.S.C. § 20109, when it fired BNSF employee Christopher Cain, and (2) the ALJ's imposing punitive damages for the violation. Exercising jurisdiction under 49 U.S.C. § 20109(d)(4) and § 42121(b)(4)(A), we deny the petition in part, grant it in part, and remand to the Board for further proceedings.
In February 2006, BNSF hired Christopher Cain as a sheet-metal worker. He worked primarily at BNSF's Argentine Rail Yard in Kansas City, Kansas, but also worked regularly at the Murray Rail Yard in Kansas City, Missouri. Cain drove between the two rail yards in a BNSF-provided pickup truck about " 4 days a week for many months." R. vol. I at 814. Paul Schakel, the Facility Supervisor, was Cain's direct foreman. Schakel reported to John Reppond, a general foreman, and Reppond reported to Dennis Bossolono, the shop superintendent of the two rail yards.
In early January 2010, Cain felt chest pains and sought treatment at an emergency room. Cain had a medical history of lung, chest, and respiratory problems. A few days later he visited a doctor, who prescribed pain medication for his chest pain.
On January 27, 2010, when Cain was driving the BNSF pickup truck back to the Argentine yard from the Murray yard, he rear-ended a produce truck stopped at a red light. He later explained on scene to the investigating police officer that " his brakes failed." Id. At the scene, Cain wrote a brief account of the accident. Cain said that he had stopped at a four-way intersection before driving toward the produce truck, which was stopped at a red light. Cain said that as he approached the stopped truck he pushed his brake pedal, which " didn't feel [r]ight." Id. at 756. Faced with this problem, Cain said he swerved but still hit the back of the produce truck. Cain was wearing his seat belt. Because the accident totaled the BNSF truck, another BNSF employee got Cain and drove him back to the Argentine yard. The police officer investigating the accident did not issue Cain a citation.
After arriving back at the Argentine yard that day, Cain filled out, signed, and filed BNSF's Employee Personal Injury/Occupational Illness Report (Report), identifying as his injuries a skinned knuckle and a bruised knee. Cain never sought medical treatment for those injuries. So that it can comply with its requirements under the Act, BNSF requires its injured employees to complete this report and to notify their supervisors of any treatment received for work-related injuries. As stated in the Report, BNSF also requires that employees " promptly notify [their] supervisor . . . if [the employees] experience any complications resulting from [the] injury/illness." Id. at 369.
During BNSF's investigation, Cain claimed that he had been in shock when he filled out the Report and had no memory of doing so. In support, Cain pointed to his " shaky handwriting and one-word answers." Id. at 815. The day after the accident, Cain e-mailed supervisor Reppond to tell Reppond that Cain's finger and knee were fine, but that Cain would miss work that day because he had slept poorly and was sore from coughing. Cain missed work the following day too, telling Reppond that he was still coughing. Cain says that his chest pains worsened after the accident.
On February 17, 2010, Cain sought medical treatment at Dr. Scott Teeter's office where a nurse practitioner, Donnette Streeter, diagnosed a rib fracture and excess fluid surrounding his lungs. In a medical report filed the next day, the
nurse practitioner described that the bruising on Cain's chest was " probably from his seatbelt." Id. at 774. Although the nurse practitioner told Cain this, Cain testified that he " wanted to know . . . what exactly was going on" before filing an updated Report that listed possibly more significant injuries. Id. at 155. That same day, Cain called Reppond to tell him that Cain needed the next two work days off to have excess fluid drained from Cain's lungs. Reppond asked Cain if this medical condition related to the accident and noted later that " Cain was adamant that this had nothing to do with his on duty automobile accident." Id. at 391. On February 22, 2010, Cain completed a " Medical Status Form," where he wrote that he was going to have (and did have) minor lung surgery the next day. Immediately upon Cain's return to work after this medical treatment, BNSF assigned him to work in the diesel service facility, which Cain described as the " dirtiest, smokiest[, most] hideous place on the yard." Id. at 164.
On February 23, 2010, BNSF notified Cain that it was investigating whether he had violated its rules by possibly driving poorly and causing the truck accident. In particular, it investigated whether Cain had violated BNSF's Mechanical Safety Rule S-28.1.1: Maintaining a Safe Course (" In case of doubt or uncertainty, take the safe course." ); Rule S-28.1.2: Alert and Attentive (" Employees must be careful to prevent injuring themselves or others. They must be alert and attentive when performing their duties and plan their work to avoid injury." ); and Rule S-28.6: Conduct (" Employees must not be: (1) [c]areless of the safety of themselves or others, (2) [n]egligent, (3) [i]nsubordinate, (4) [d]ishonest, (5) [i]mmoral, (6) [q]uarrelsome, or (7) [d]iscourteous." ). R. vol. I at 555-56. BNSF advised Cain that he needed to attend a hearing on this matter set for March 10, 2010. Cain and BNSF twice agreed to postpone the hearing, ultimately until May 18, 2010.
On April 8, 2010, Cain saw Dr. Shantikumar Gandhi, who told Cain that the truck collision had caused his chest and lung injuries. Later that day, Cain filed an updated Report with BNSF about his January accident. As part of his doing so, he encountered supervisors Reppond and Schakel, who discouraged him from filing the updated Report. Cain later testified that Reppond told him that if he filed the updated Report " this wasn't going to go well for [you]." Id. at 902. Cain also testified that Schakel urged him not to file the report, saying that doing so would hurt managers and supervisors because BNSF would have to report the accident and injuries to the Federal Railroad Administration (FRA). See 49 C.F.R. § § 225.1, 225.19 (requiring railroads to report any work-related accidents that result in medical treatment or significant injury). Despite the opposition, Cain still filed the updated Report, recounting his previous medical appointments and identifying three additional injuries caused by the accident: a " Broken Rib [due] to Seat Belt Hitting Chest & No Air Bag," bleeding in the pleural cavity, and a collapsed lung. R. vol. I at 403.
On April 30, 2010, BNSF notified Cain that it also had begun investigating whether he had violated company rules by the late reporting of his injuries and medical treatment arising from the truck accident.
On May 13, 2010, Cain attended BNSF's investigative meeting on this issue. On May 18, 2010, Cain attended BNSF's investigative meeting on the issues connected with his driving conduct leading up to the truck accident.
On June 2, 2010, BNSF issued a written decision suspending Cain for 30 days for violating its rules associated with safely driving its automobiles. In addition, BNSF placed Cain on probation for three years, retroactive to the date of the accident, January 27, 2010. BNSF's written decision noted that " [a]ny rules violation during this probation period could result in further disciplinary action." Id. at 563.
Only six days later, on June 8, 2010, BNSF terminated Cain's employment for Cain's " fail[ing] to report to the proper manager that [he] had received medical treatment related to [his] vehicle accident on January 27, 2010." Id. at 565. As Cain understood it, BNSF was basing his termination on his " not filing an injury report in a timely manner." Id. at 165. During his deposition, Reppond said that BNSF dismissed Cain " for an accumulation of discipline events per our . . . guidelines." Id. at 799. Similarly, Bossolono stated that BNSF fired Cain " for accumulation of discipline events with the latest one being failure to report that he had received medical treatment for an on-duty injury." Id. at 973. The ALJ found that " the termination was for violation of probation, which had been applied retroactively to the [accident]." Id. at 1122. BNSF objected to this finding before the Board but did not argue why the ALJ erred in making that finding. BNSF does not challenge the ALJ's finding in the petition for review.
In November 2010, after Cain's union unsuccessfully sought back wages under the collective-bargaining agreement, Cain filed a complaint under FRSA with the Occupational Safety and Health Administration (OSHA). In December 2011, an OSHA regional administrator denied Cain's claims under 49 U.S.C. § 20109. The administrator concluded that Cain had not shown a prima facie case of retaliation under FRSA. Specifically, the administrator concluded that even if Cain had engaged in protected activity by filing the April 8 updated Report, that activity had not been a contributing factor ...