Michael Brousil v. LABR

43 F.4th 808

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 9, 2022
• Docket: 21-1532
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 21‐1532 MICHAEL J. BROUSIL, Petitioner, v.

UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, Respondent, and BNSF RAILWAY COMPANY, Intervening Respondent. ____________________

On Petition for Review of a Decision and Order of the United States Department of Labor. Nos. 2020‐0053 & ‐0062 ____________________

ARGUED DECEMBER 6, 2021 — DECIDED AUGUST 9, 2022 ____________________

Before RIPPLE, WOOD, and KIRSCH, Circuit Judges. KIRSCH, Circuit Judge. Michael Brousil, a locomotive engi‐ neer, filed an administrative complaint with OSHA alleging that his employer, BNSF Railway Company, violated the Fed‐ eral Railroad Safety Act by retaliating against him for raising 2 No. 21‐1532

safety concerns and for refusing to engage in unsafe practices. Brousil had been disciplined for safety rule violations and in‐ subordination for three 2013 incidents where Brousil refused to perform parts of his job. At the end of a winding path, the Department of Labor’s Administrative Review Board af‐ firmed an administrative law judge’s determination that BNSF had a valid same‐action affirmative defense. Because substantial evidence supported the ARB’s decision that, ab‐ sent any protected activity, BNSF would have disciplined Brousil the same way because of his unwillingness to enter‐ tain reasonable, safe alternatives, we deny Brousil’s petition for review. I A After twenty‐five years as a locomotive engineer for BNSF, Michael Brousil found himself facing a series of investigations and disciplinary actions concerning three incidents in 2013. The first incident—in February—involved Brousil’s piloting a passenger train out of station while one of the train’s doors remained open. Brousil had failed to confirm that an indicator light was on, which illuminates green only when all the doors on a train are closed and is visible only to the locomotive en‐ gineer. BNSF soon informed Brousil it was investigating this incident. While that investigation was ongoing, a second incident occurred. On July 29, Brousil reported an indicator light out‐ age to his supervisor. When an indicator light fails, BNSF pol‐ icies require a train’s crew to manually verify that all doors are closed. The parlance dubs this “going the old way,” codi‐ fied in BNSF’s Passenger Operations Manual as Rule 1.2.4. No. 21‐1532 3

Manual verification had been BNSF’s standard operating pro‐ cedure before indicator lights were installed in the early 2010s. Once the crew convenes and confirms all doors are closed, the train may go on its way. Accordingly, Brousil’s su‐ pervisor—following BNSF’s policies—directed Brousil to go the old way to deal with the malfunctioning light. Even after the crew confirmed all doors were closed and the train was safe to be operated, Brousil refused to operate the train. He maintained that doing so with a malfunctioning indicator light would be unsafe. At no point did Brousil seek an agree‐ ment with his supervisor as to how the work could be com‐ pleted in a safe manner. Nor did Brousil suggest any alterna‐ tives, even though the “old way” had been standard proce‐ dure for years before 2010. The third incident was inside Chicago’s Union Station the following month, on August 1. Pulling his train up to a plat‐ form, Brousil stopped the moment he lost sight of the absolute signal, a large red stoplight flagging the end of the tracks. En‐ gineers like Brousil face automatic decertification of their li‐ censes if they move a train beyond the tracks’ end. Not want‐ ing to risk it, Brousil stopped short and out of reach of the station’s electric power source. This left as the only power source the train’s diesel head end power, which Brousil per‐ sonally considered unsafe in close confines because of its die‐ sel fumes. Meanwhile, a disabled passenger was waiting to board Brousil’s train using the train’s ADA‐compliant lift. Now Brousil had a problem. He refused to get any closer to the station’s power source for fear of decertification and re‐ fused to use the train’s power source for fear of the diesel fumes. Because the lift lacked power, the disabled passenger could not board the train, delaying it fifteen minutes. Just like he did during the July 29 incident, Brousil refused to discuss 4 No. 21‐1532

a fix with his supervisor. He refused to use head end power when ordered to do so. And he did not try to operate the ADA lift manually, which BNSF employees are trained to do. In‐ stead, Brousil walked off, prompting a coworker to finish the job by using the head end power to operate the ADA lift for the passenger. BNSF temporarily suspended Brousil and held two formal disciplinary hearings, one on August 14 and one on Septem‐ ber 11. At the end of the first hearing, the presiding BNSF em‐ ployee considered evidence, witness testimony, and argu‐ ments, concluding that Brousil had violated the company’s safety rules in February when he piloted a passenger train with the door open. The second hearing—charging Brousil with insubordina‐ tion and rule violations during the second and third incidents on July 29 and August 1—had the same procedures and the same result. The conducting officer found Brousil had com‐ mitted the charged violations and issued him two suspen‐ sions that under BNSF’s policies warranted dismissal. B Brousil filed a complaint with OSHA alleging that BNSF’s disciplinary actions against him were retaliation for his rais‐ ing safety concerns and refusing to engage in unsafe practices, conduct protected by the Federal Railroad Safety Act, 49 U.S.C. § 20109. OSHA dismissed the complaint. Brousil then sought and got a formal evidentiary hearing before a Department of Labor administrative law judge. That ALJ denied Brousil’s claim based on the statutory same‐action affirmative defense, 49 U.S.C. § 42121(b)(2)(B)(iv), but the Ad‐ ministrative Review Board remanded so that the ALJ could No. 21‐1532 5

reconsider that defense using several factors to address Brou‐ sil’s situation, where the conduct for which Brousil was disci‐ plined overlapped with protected conduct. The ALJ con‐ cluded that Brousil had carried his prima facie case under FRSA, but BNSF would have imposed the same discipline ab‐ sent Brousil’s protected activity. The ARB affirmed the ALJ’s conclusions and denied Brousil’s complaint, agreeing that “the record supports the ALJ’s factual determination that [BNSF] proved, by clear and convincing evidence, that it would have taken the same adverse actions against [Brousil] absent any of his protected activity.” Brousil petitioned us to review the ARB’s decision in ac‐ cordance with 49 U.S.C. § 20109(d)(4), arguing that the ALJ and ARB committed various errors in applying the same‐ac‐ tion defense. BNSF intervened. II We review the ARB’s decision under the Administrative Procedure Act standards in 5 U.S.C. § 706. 49 U.S.C. § 20109(d)(4). We will uphold the ARB’s legal conclusions un‐ less they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Roadway Exp., Inc. v. U.S. Dep’t of Lab., 612 F.3d 660, 664 (7th Cir. 2010) (quoting 5 U.S.C. § 706(2)(A)). And we will uphold the ARB’s findings of fact if supported by substantial evidence. Id. (citing 5 U.S.C. § 706(2)(E)). The deferential substantial evidence standard is satisfied if the factfinder relied on “such relevant evidence as a reasonable mind might accept as adequate to support the conclusion.” Id. (citation omitted). We accept without decid‐ ing—as did the ARB—that Brousil’s reporting safety issues and refusing to work constituted protected activity and that 6 No. 21‐1532

Brousil carried his prima facie case. So we turn to the statutory same‐action affirmative defense. An employer is not liable on a FRSA retaliation claim if it demonstrates “by clear and convincing evidence, that the em‐ ployer would have taken the same unfavorable personnel ac‐ tion in the absence of [statutorily protected] behavior.” 49 U.S.C. § 42121(b)(2)(B)(iv); see id. § 20109(d)(2)(A) (incorpo‐ rating id. § 42121(b) by reference). The ARB has given guiding factors to factfinders deciding whether an employer would have taken the same adverse action against an employee ab‐ sent any protected activity: “(1) how ‘clear’ and ‘convincing’ the independent significance is of the non‐protected activity; (2) the evidence that proves or disproves whether the em‐ ployer ‘would have’ taken the same adverse actions; and (3) the facts that would change in the ‘absence of’ the protected activity.” Speegle v. Stone & Webster Constr., Inc., ARB No. 13‐ 074, ord. at 12 (ARB Apr. 25, 2014). These factors are non‐man‐ datory, and the ARB has admonished factfinders to “holisti‐ cally consider any and all relevant, admissible evidence.” Clem v. Computer Sci. Corp., ARB No. 16‐096, ord. at 12 n.8 (ARB Sept. 17, 2019). Contrary to Brousil’s contention, no cir‐ cuit court or later ARB decision has limited the factfinder’s ability to look at all relevant evidence. It is difficult to draw the line where protected conduct ends and unprotected conduct begins when—as here—both arise out of the same incidents. That line‐drawing is factual and due substantial evidence review. See Formella v. U.S. Dep’t of Lab., 628 F.3d 381, 393 (7th Cir. 2010) (upholding ALJ’s same‐action defense determination as supported by substan‐ tial evidence). In Formella, we held that an employer was en‐ titled to a same‐action defense. The conduct for which No. 21‐1532 7

Formella was fired overlapped with protected conduct. Id. Formella, a truck driver, had reported to his supervisors that his assigned truck had various unsafe defects, but his manner of expressing these protected concerns was markedly hos‐ tile—even threatening—and he was terminated. Id. at 383–87. We held that such blatant insubordination is typically unpro‐ tected behavior. Id. The ALJ (and the ARB in affirming) had substantial evidence about Formella’s disruptive conduct to conclude that the plaintiff had crossed the line from protected to unprotected conduct. Id. at 393. The same is true for Brousil’s case. Substantial evidence showed Brousil refused to use reasonable alternatives in both the July 29 and August 1 incidents. Where there is a safe, rea‐ sonable alternative, refusal to use that workaround will typi‐ cally take the conduct over the line from protected (refusal to engage in unsafe work) to unprotected (refusal to use the al‐ ternative). Substantial evidence supported a finding that Brousil’s conduct during the July 29 incident crossed over into unpro‐ tected territory because of his unwillingness to seek a reason‐ able, safe alternative. For years before 2010 and the emergence of indicator lights, BNSF engineers had used the old way of manual verification, Passenger Operations Manual Rule 1.2.4, to ensure train doors were safely closed. Brousil knew all about POM 1.2.4, which makes sense considering his more than two decades as a BNSF engineer before 2010. And no ev‐ idence was presented that the old way was unsafe. On the contrary, every other operator was comfortable using the old way as an alternative. The factfinders had enough evidence to conclude Brousil’s intransigence constituted unprotected ac‐ tivity for which BNSF would rightly discipline employees. 8 No. 21‐1532

BNSF disciplined Brousil for his unwillingness to entertain a solution—the old way—not for his reporting or refusal to work. The same goes for the August 1 incident. Brousil refused to discuss any solutions to his dilemma and simply walked off. But evidence showed using head end power was a rea‐ sonable, safe alternative. The ALJ reviewed testimony and documents explaining that diesel exhaust in Chicago Union Station has never approached harmful levels. BNSF published these findings on its website, which Brousil had seen. And Brousil did not entertain the option to operate the lift manu‐ ally. Here again BNSF disciplined Brousil for his unwilling‐ ness to entertain a solution—using head end power or the manual option—not for his reporting or refusal to work. Considering substantial evidence showed these alterna‐ tives were available during both incidents, BNSF had a valid reason for disciplining Brousil for refusing to use them. Therefore, regardless of any protected activity overlapping with those refusals, BNSF “would have taken the same unfa‐ vorable personnel action.” See 49 U.S.C. § 42121(b)(2)(B)(iv). Brousil thinks the ALJ erred by not addressing multiple facts evincing BNSF was disciplining him for his protected ac‐ tivity, not his misconduct: (1) An email from BNSF manage‐ ment that Brousil claims shows animosity towards Brousil’s exercise of FRSA rights; (2) alleged disparate treatment of other employees in the hearing on the July 29 incident; and (3) BNSF’s altering of a printout showing that Brousil had left the station during the February incident when the indicator light was not on. We’ve never held that agencies must consider every piece of evidence when making a factual finding under the Administrative Procedure Act. And evidence arguably No. 21‐1532 9

pointing towards one conclusion does not change the sub‐ stantial evidence pointing in the direction taken by the agency factfinders. At most, these few facts mean “that reasonable people might differ about the outcome here,” but—for the reasons stated above—“we have no trouble finding that sub‐ stantial evidence supported the ARB’s decision” that the same‐action defense applied to BNSF’s discipline of Brousil. Roadway Exp., 612 F.3d at 666. DENIED