Railroad Whistleblower Wins on Appeal to DOL’s Administrative Review Board

March 21, 2012 - Comments Off

The Administrative Review Board (“ARB”) of the Department of Labor (“DOL”) ruled in favor of a railroad whistleblower on February 29, 2012.  In the case of DeFrancesco v. Union Railroad Company, the ARB decided that an administrative law judge (“ALJ”) had erred when he dismissed a whistleblower case brought under the Federal Rail Safety Act of 1982 (“FRSA”), and remanded the case for further proceedings.

Kenneth G. DeFrancesco’s complaint arose when his employer, Union Railroad Company, suspended him for 15 days after he reported a slip-and-fall accident on December 6, 2008.  DeFrancesco had worked for Union as a trainman for more than 30 years, including 12 years on various furloughs.  His work involved putting rail cars together by coupling air hoses and brakes.  On the snowy evening of December 6, 2008, while directing a rail car into the steel mill, he slipped and fell on his back.  DeFrancesco immediately reported the incident to his supervisor, as Union’s work rules required, and went to a doctor who diagnosed that DeFrancesco had a strained lower back.

Superintendent Robert J. Kepic and train rules examiner Ronald A. Sieger watched a video of the December 6, 2008 incident, reviewed the reports, and concluded that DeFrancesco violated Safety Rules 5.20 and 5.20.1 because he failed to take short, deliberate steps when walking in the snow, which they asserted demonstrated carelessness.   They also concluded that DeFrancesco violated General Rule B of Union’s rules book in light of his discipline and injury history.  Sieger and Kepic informed DeFrancesco that if he accepted the charges against him, he would receive a 15-day suspension without pay.  DeFrancesco’s union representative told him that if he proceeded with the investigative hearing, he would be discharged.  On January 12, 2009, DeFrancesco waived the hearing.  On January 15, 2009, Sieger suspended DeFrancesco for 15 days without pay through February 7, 2009.

On February 11, 2009, DeFrancesco filed a complaint with the DOL’s Occupational Safety and Health Administration (“OSHA”) alleging that Union suspended him in retaliation for reporting a work-related injury.  After an investigation, OSHA determined that Union had violated the FRSA and ordered relief.  The Union appealed and requested a hearing with an ALJ.  The ALJ concluded that DeFrancesco failed to establish that his protected activity was a contributing factor in the adverse action Union took against him and dismissed his complaint.  DeFrancesco appealed to the Administrative Review Board.

The ALJ found that DeFrancesco engaged in protected activity by reporting his injury, that Union’s disciplinary decision-makers were aware of his activity, and that the 15-day suspension was an adverse action.  The ALJ’s findings with respect to protected activity, knowledge, and adverse action were not contested on appeal.  In considering whether DeFrancesco’s report of his injury was a contributing factor to the 15-day suspension, the ALJ stated that the “key inquiry” was whether DeFrancesco could establish that Kepic and Sieger were motivated by “retaliatory animus.”  The ALJ concluded that DeFrancesco failed to show that his protected activity was a contributing factor because he did not prove that his employer was motivated by retaliatory animus.

In reversing the ruling by the ALJ, the ARB held that the ALJ had engaged in legal error.  “DeFrancesco is not required to show retaliatory animus (or motivation or intent) to prove that his protected activity contributed to Union’s adverse action.  Rather, DeFrancesco must prove that the reporting of his injury was a contributing factor to the suspension.  By focusing on the motivation of Kepic and Sieger, the ALJ imposed on DeFrancesco an incorrect burden of proof, thus requiring remand.”

The ARB then explained that if DeFrancesco had not reported his injury as he was required to do, Kepic would never have reviewed the video of DeFrancesco’s fall or his employment records.  Kepic admitted as much at the hearing.  The ARB held that while DeFrancesco’s records may indicate a history and pattern of safety violations, the fact remains that his report of the injury on December 6,  2008 triggered Kepic’s review of his personnel records, which led to the 15-day suspension.  As such, the ARB found, Union’s decision to suspend DeFrancesco  for 15 days thus violated the direct language of the FRSA, which provides that a railroad carrier may not “suspend” an employee when the employee’s actions are “due, in whole or in part, to the employee’s lawful, good faith act done.”  Therefore, applying the framework of proving a contributing factor under AIR 21, the ARB concluded that as a matter of law that DeFrancesco’s reporting of his injury was a contributing factor to his suspension.  The ARB therefore remanded the case for the ALJ to determine whether Union proved by clear and convincing evidence that it would have suspended DeFrancesco absent his protected activity.

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