Pan Am Railways, Inc. v. United States Department of Labor , 855 F.3d 29 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2271
PAN AM RAILWAYS, INC.,
Petitioner,
v.
UNITED STATES DEPARTMENT OF LABOR,
Respondent,
JASON RAYE,
Intervenor.
PETITION FOR REVIEW OF A FINAL ORDER OF THE ADMINISTRATIVE
REVIEW BOARD OF THE UNITED STATES DEPARTMENT OF LABOR
Before
Howard, Chief Judge,
Selya and Lynch, Circuit Judges.
Andrew J. Rolfes, with whom Robert S. Hawkins and Buchanan
Ingersoll & Rooney, P.C. were on brief, for petitioner.
Dean A. Romhilt, Senior Attorney, Office of the Solicitor,
U.S. Department of Labor, with whom Nicholas C. Geale, Acting
Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, and
Megan E. Guenther, Counsel for Whistleblower Programs, were on
brief, for respondent.
Stephen J. Fitzgerald, with whom Garrison, Levin-Epstein,
Fitzgerald & Pirrotti, P.C. was on brief, for intervenor.
April 21, 2017
LYNCH, Circuit Judge. This is a petition for review, in
a Federal Railroad Safety Act ("FRSA") whistleblower retaliation
action, of an agency decision resulting in the statutory maximum
award of punitive damages against a railroad. The railroad brought
charges of dishonesty and insubordination, as well as threats of
dismissal, against an injured employee who had filed a complaint
under the FRSA with the Occupational Safety and Health
Administration ("OSHA"), alleging that he lied in that complaint
about precisely how his on-the-job accident happened, based on a
purported discrepancy between the complaint and his prior story.
An Administrative Law Judge ("ALJ") later found that those charges
of dishonesty constituted unlawful retaliation against the
employee for filing the OSHA complaint.
We agree with the Department of Labor's Administrative
Review Board ("ARB") that substantial evidence supported the ALJ's
rejection of the railroad's affirmative defense and the ALJ's
decision to impose punitive damages. The amount of the punitive
damages award presents a closer question. The award seems high,
and we might ourselves have chosen a different sum. In the end,
however, we conclude that the ALJ's decision to award punitive
damages of $250,000, to punish and deter what he perceived to be
a culture of intimidating employees and discouraging them from
engaging in protected activity, was within the realm of his
discretion. We deny the petition for review.
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I.
A. The FRSA and Raye's Injury
This story begins with an on-the-job accident in which
Jason Raye, a train conductor for a subsidiary of petitioner Pan
Am Railways, Inc. ("Pan Am"), injured his ankle and missed work as
a result. The FRSA's employee protection provision forbids
railroad carriers from retaliating against employees who engage in
protected activity, such as reporting a workplace injury or filing
an OSHA complaint. See 49 U.S.C. § 20109. Importantly, this case
concerns FRSA retaliation against Raye for filing an OSHA
complaint.
A few weeks before his accident, on October 5, 2011,
Raye noticed a pile of old railroad ties next to a track in a
railyard in Waterville, Maine. He thought the pile a tripping
hazard and reported it to his manager, Dwynn Williams. The pile
was not removed before Raye's accident.1
On October 24, 2011, during his shift, Raye stepped off
a train onto that same pile of railroad ties and badly sprained
his ankle. We recount later his testimony about the accident.
Raye called his dispatcher for a ride to the hospital, where Raye
1 Raye later testified in the ALJ hearing that Pan Am had
not disciplined anyone, as far as he knew, for failing to remove
the dangerous pile from the railyard in the weeks between Raye's
initial report and his accident. Pan Am has not refuted that
testimony.
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was diagnosed with the sprain. Williams visited Raye at the
hospital, and Raye explained that he had "rolled [his] ankle on
the same ties that [he had] turned in three weeks ago." In
response, Williams said that Raye should "probably expect a
[disciplinary] hearing" in the wake of the injury.
Raye had two scheduled days off after his injury, but he
needed three days to recover, so he missed a day of work. That
missed day required Pan Am to report Raye's injury and the injury's
cause to the Federal Railroad Administration ("FRA"). See 49
C.F.R. § 225.19(d)(3)(i). When Raye returned to work on October
28, 2011, his superintendent, Jim Quinn, learned about the injury
and the missed day. Quinn told Raye that the missed day "change[d]
everything" and that "[t]here w[ould] probably be a hearing . . .
for that FRA reportable injury, for missing a day."
B. First Pan Am Disciplinary Proceeding Brought Against Raye for
His Alleged Safety Violation
On November 1, 2011, Raye received a Notice of Hearing
from Pan Am, signed by Williams. The notice alleged that Raye had
violated Pan Am Safety Rule P-76, which provides that "[b]efore
getting on and off [a train], [employees must] carefully observe
ground condition and be assured of firm footing." At the November
11, 2011 hearing, Raye testified that he had stepped down from the
train safely and cautiously, but had nonetheless lost his balance
on the unstable pile of ties. Raye also testified that after
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rolling his ankle he had "caught [him]self" and sat down on the
ground rather than falling over.
On November 28, 2011, John Schultz, Pan Am's Vice
President of Transportation, sent Raye a letter stating that Raye
had failed to assure himself of firm footing before stepping onto
the pile of ties. The letter itself "serve[d] as discipline in
the form of a formal [r]eprimand and . . . a copy of it w[as] . . .
placed in [Raye's] personal file."
C. Raye's OSHA Complaint, Second Pan Am Disciplinary Proceeding
for Raye's Alleged Dishonesty, and Raye's Amended OSHA
Complaint Charging Retaliation
Raye retained a lawyer, who drafted and submitted a typed
complaint to OSHA on December 6, 2011, without Raye first reviewing
or signing it. This initial complaint accused Pan Am of violating
the FRSA by retaliating against Raye, both for reporting a safety
hazard and for reporting his injury. See 49 U.S.C. § 20109(a)(4),
(b)(1)(A). The typed OSHA complaint was consistent with Raye's
testimony at the earlier Pan Am disciplinary hearing, with one
exception: the complaint stated that Raye "fell hard to the ground"
at the time of the injury, rather than that he sat down on the
ground.
On December 12, 2011, OSHA sent Pan Am a copy of Raye's
complaint and sought Pan Am's response to the allegations. At the
request of Pan Am's legal and human resources departments, Schultz
reviewed the OSHA complaint -- which he reasonably believed had
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been drafted by Raye himself -- and thought there was a "major
discrepancy" between the complaint's statement about Raye falling
hard to the ground and Raye's prior hearing testimony that he had
caught himself and sat down on the ground after stumbling. That
discrepancy, Schultz said later, caused Pan Am to make a
"collective determination" to bring a second set of disciplinary
charges against Raye. Pan Am made that determination without any
effort to first ask Raye about the purported inconsistency.
On December 23, 2011, Pan Am sent Raye a second Notice
of Hearing, which directed him to appear at a second disciplinary
proceeding, levied several serious charges against him, and
threatened him with termination. OSHA and the ALJ would later
find that retaliation against Raye for filing the initial OSHA
complaint was a contributing factor in Pan Am's decision to bring
these new charges. The notice alleged that Raye had "[p]rovid[ed]
false statements to [Pan Am] and/or a government agency, in
connection with [his] description as to how the incident . . . on
October 24, 2011, took place." That purported dishonesty, the
notice further alleged, violated two Pan Am Safety Rules: (1) Rule
PGR-C, which threatens employees with dismissal if they commit
"act[s] of insubordination, hostility, or willful disregard of
[Pan Am's] interests" or if they "conduct themselves in such a
manner that [Pan Am] will . . . be subject to criticism or loss of
good will"; and (2) Rule PGR-L, which threatens employees with
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dismissal if they are "dishonest, immoral, vicious, quarrelsome,
and uncivil in deportment or . . . careless of the safety [of]
themselves or of others." The notice did not specify which of
Raye's statements about the accident were alleged to have been
"dishonest" or "insubordinat[e]."
Raye's lawyer, in response, amended the OSHA complaint
on December 27, 2011, to include an allegation that the second set
of charges amounted to Pan Am retaliating against Raye for having
filed the original OSHA complaint. See 49 U.S.C. § 20109(a)(3).
He enclosed the new Notice of Hearing and asserted to OSHA that
Pan Am was "clearly bringing these additional charges in
retaliation for . . . the original [OSHA] complaint."
The second Pan Am disciplinary hearing, addressing the
new charges of dishonesty and insubordination, took place on
January 4, 2012. Raye explained that his lawyer had written the
statement in the OSHA complaint, that he himself had not been aware
of the statement's contents before the lawyer submitted the
complaint to OSHA, that the discrepant portion of the statement
was wrong, and that his testimony at the first hearing had been
correct. The facts in the OSHA complaint, he confirmed, were
otherwise accurate and consistent with his prior hearing
testimony. Finally, he testified that no one from Pan Am had
approached him informally at any time before issuing the second
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Notice of Hearing to discuss the purported "major discrepancy"
that Schultz had identified.2
In a letter dated January 13, 2012, Pan Am informed Raye
that "the charges [of rule violations] ha[d] not been sustained"
and that no disciplinary action would be taken as a result of the
second hearing.
On August 14, 2013, OSHA rejected Raye's claim that Pan
Am had retaliated against him for reporting his injury or for
reporting a safety hazard, finding that Pan Am had "provided clear
and convincing evidence that it would have reprimanded [Raye] if
it had observed the incident, even if no injury resulted."
OSHA agreed with Raye, however, that Pan Am had
unlawfully retaliated against him by bringing the second set of
charges after he filed the original OSHA complaint. Pan Am had
"not provided clear and convincing evidence," OSHA found, "that it
would have taken the same adverse action even if [Raye] had not
engaged in protected activity." OSHA further noted that "once a
2 The ALJ later found, despite Pan Am's claim that its
officials could not have spoken informally with Raye because of
the collective bargaining agreement with Raye's union, that
nothing in that agreement prohibited an informal conversation.
This was one of several instances in which the ALJ found Schultz's
testimony before him to be less than truthful. Further, the ALJ
evidently accepted Raye's unrebutted testimony that on another
occasion Quinn, the superintendent, had called him in for an
informal conversation to learn more about the circumstances of a
workplace accident. On that occasion, Pan Am did not formally
charge Raye with a safety violation until after the informal
conversation.
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FRSA allegation has been made to OSHA, it is OSHA's responsibility,
not [an employer's], to establish the truth of assertions made by
both parties."
D. ALJ and ARB Proceedings
On September 12, 2013, Pan Am objected to OSHA's finding
of retaliation3 and requested a de novo hearing before an ALJ.
That hearing took place on February 24, 2014. The ALJ heard live
testimony from Raye and from Schultz. Pan Am sought to introduce
several exhibits documenting past instances of employee
discipline, which it characterized as comparator evidence
supporting its affirmative defense that it would have taken the
same action even absent Raye's protected activity. The ALJ
admitted the documents about which Schultz could testify from
personal experience, but excluded others for which Pan Am could
provide no explanation or context.
The ALJ issued his Decision and Order on June 25, 2014.
First, he found that Raye's protected activity -- filing an OSHA
complaint -- had been a contributing factor in Pan Am's decision
to charge Raye with dishonesty and to hold a second hearing. Next,
he rejected Pan Am's affirmative defense, holding that Pan Am had
not "prove[d] by clear and convincing evidence that it would have
3 OSHA's finding that the first Pan Am hearing and
subsequent reprimand did not constitute unlawful retaliation
against Raye was not appealed.
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taken the same action absent [Raye's] protected activity." He
dismissed as inadequate Pan Am's proffered comparator evidence
because those instances of investigation and discipline were not
fairly comparable to Raye's circumstances.
Finally, the ALJ turned to what relief was "necessary to
make [Raye] whole," 49 U.S.C. § 20109(e)(1), and awarded Raye
$10,000 in damages for emotional distress. He also imposed
$250,000 in punitive damages -- the maximum amount that the FRSA
allows, see id. § 20109(e)(3) -- because Pan Am had "utilized the
[disciplinary] process to intimidate and discourage protected
activity, not only by Raye, but [by] other employees of Pan Am as
well."
Pan Am appealed the ALJ's decision to the ARB, which
affirmed. The ARB held that substantial evidence supported the
ALJ's determination that Pan Am had failed to prove its affirmative
defense by clear and convincing evidence. It also found no abuse
of discretion in the award of $250,000.
II.
The scope of our review of Pan Am's petition for review
of the ARB's final order is limited by the Administrative Procedure
Act. See 49 U.S.C. § 20109(d)(4) (cross-referencing 5 U.S.C.
§§ 701–706); R & B Transp., LLC v. U.S. Dep't of Labor, Admin.
Review Bd., 618 F.3d 37, 44 (1st Cir. 2010). Accordingly, we must
deny the petition "unless [the ARB's] legal conclusions are
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arbitrary, capricious, or otherwise not in accordance with law, or
its factual conclusions are unsupported by substantial evidence."
R & B Transp., 618 F.3d at 44 (quoting Clean Harbors Envtl. Servs.,
Inc. v. Herman, 146 F.3d 12, 19 (1st Cir. 1998)). The substantial
evidence standard is a hurdle "notoriously difficult to overcome
on appellate review." Vieques Air Link, Inc. v. U.S. Dep't of
Labor, 437 F.3d 102, 104 (1st Cir. 2006) (per curiam) (quoting
Bath Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st
Cir. 2003)).4
Pan Am's petition raises two issues. First, Pan Am
argues that it established in the ALJ proceeding, by clear and
convincing evidence, its affirmative defense that it would have
issued the second Notice of Hearing and threatened Raye with
termination for dishonesty even if he had not engaged in protected
activity by filing an OSHA complaint. Second, Pan Am argues that
the $250,000 punitive damages award was unsupported by substantial
evidence and clearly excessive. Pan Am does not challenge the
abuse of discretion standard of judicial review as to the amount
of punitive damages.
4 With respect to findings of fact, "it is the ALJ's unique
prerogative in the first instance to 'draw inferences and make
credibility assessments, and we may not disturb his judgment and
the [ARB's] endorsement of it so long as the [ALJ's] findings are
adequately anchored in the record.'" Bath Iron Works, 336 F.3d at
56 (quoting Bath Iron Works Corp. v. Dir., Office of Workers Comp.
Programs, U.S. Dep't of Labor, 244 F.3d 222, 231 (1st Cir. 2001)).
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A. Rejection of Pan Am's Affirmative Defense that It Would Have
Charged Raye with Dishonesty Even Absent His Protected
Activity
Under the FRSA, an employee alleging retaliation bears
the initial burden of demonstrating that his protected activity
"was a contributing factor in the unfavorable personnel action
alleged in the complaint."5 49 U.S.C. § 42121(b)(2)(B)(iii); see
id. § 20109(d)(2)(A). Pan Am does not dispute that Raye met his
"contributing factor" burden and shifted the burden to Pan Am to
prove, "by clear and convincing evidence," that it "would have
taken the same unfavorable personnel action in the absence of [the
protected activity]." Id. § 42121(b)(2)(B)(iv).6
Pan Am takes two tacks in challenging the ALJ's rejection
of its affirmative defense. First, it argues that the ALJ abused
his discretion by excluding material comparator evidence. Second,
it argues that the mere fact of discrepancy between the two
accounts of Raye's accident is sufficient to meet Pan Am's burden
of proof.
5 Pan Am has abandoned one of its original theories: that
there was no "adverse action," as a matter of law, given that Raye
was not punished after the second disciplinary proceeding.
6 The "clear and convincing evidence" standard is more
demanding than a preponderance standard and requires "proof that
the [employer's] assertions are 'highly probable.'" United States
v. Volungus, 730 F.3d 40, 46–47 (1st Cir. 2013) (quoting Colorado
v. New Mexico, 467 U.S. 310, 316–17 (1984)).
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1. Pan Am's Comparator Evidence
Pan Am faults the ALJ for excluding certain notices of
investigation and records of arbitration awards, which Pan Am
sought to introduce as additional comparator evidence. There was
no abuse of discretion in the ALJ's decision to exclude those
exhibits. Pan Am contends that the exhibits were admissible as
business records or public records. See 29 C.F.R. § 18.803(a)(6),
(a)(8). But that argument misses the point: the KALJ excluded the
exhibits not because they were hearsay, but rather because their
probative value was minimal without a witness to explain their
significance and in light of the exhibits already in evidence.
See id. § 18.403. The ALJ was within his discretion in concluding
that the proffered exhibits, without additional context, should
not be admitted.
In any event, the record makes clear that any error was
harmless. The excluded exhibits, on their face, merely suggested
that Pan Am may have previously disciplined employees for false
statements. The key issue, however, was whether the false
statements in those instances were of a similar character as the
discrepancy that Pan Am chose to investigate formally and
aggressively in Raye's case. The excluded exhibits do not
themselves describe circumstances that are reasonably comparable
to Raye's, and no other evidence makes them so. There is no reason
to believe that the ALJ would have afforded the exhibits any
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weight, or changed his mind, had they been admitted. See R & B
Transp., 618 F.3d at 46 (finding "any purported [evidentiary] error
. . . harmless in light of the other evidence" considered by the
ALJ); Mekhoukh v. Ashcroft, 358 F.3d 118, 130 (1st Cir. 2004) ("The
evidence [not considered] contains no information that materially
affects the outcome of [petitioner's] claims.").
Pan Am also argues that the comparator evidence the ALJ
did admit was sufficient to meet its burden to prove its
affirmative defense. But those disciplinary records, too, had
only indirect relevance to Raye's case: they involved patently and
materially false hearing testimony by the employees, rather than
mere discrepancies, and the notices given there to the employees
did not threaten to fire them after the employees had made a
statement to OSHA.
2. Rejection of Pan Am's Purportedly Non-Retaliatory Motive
for Charging Raye with Dishonesty
Pan Am contends that the two accounts of Raye's accident
were "fundamentally irreconcilable" and that the discrepancy gave
Pan Am a non-retaliatory motive to charge Raye with dishonesty-
related violations and to hold a second formal hearing. But the
ALJ had substantial evidence and reason not to credit Pan Am's
explanation.
First, the ALJ was entitled to evaluate the hearing
testimony of Schultz, Pan Am's key decision maker, and decide
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whether Schultz's explanation was sufficiently credible. There
were reasons to doubt Schultz's credibility. In his initial
testimony, he mischaracterized the description of the accident
contained in the OSHA complaint. Only on cross-examination did he
admit his mischaracterization. The ALJ also reasonably gave weight
to Schultz's failure simply to ask Raye about the perceived
discrepancy before rushing to charge Raye formally with dishonesty
and to threaten him with the loss of his job. Again, the ALJ
rejected Pan Am's purported reasons for its failure to do so.
Although there may be room for disagreement about the
significance and extent of the discrepancy, we are not the triers
of fact. Substantial evidence supported the ALJ's conclusion that
Pan Am overstated the significance of the discrepancy and failed
to prove that it would have taken the same adverse actions if Raye
had not filed the OSHA complaint.
Pan Am argues that the ALJ ignored an ARB precedent
requiring him to consider "the proportional relationship between
the adverse actions and the bases for the actions." See Speegle
v. Stone & Webster Constr., Inc., ARB Case No. 13-074, 2014 WL
1758321, at *7 (Dep't of Labor Admin. Review Bd. Apr. 25, 2014).
That argument is flatly contrary to the record, which reflects
that the ALJ in this case properly took proportionality into
account as circumstantial evidence, as well as "the temporal
proximity between the non-protected conduct and the adverse
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actions." Id. As Speegle clearly states, proportionality is only
one of several pieces of circumstantial evidence that an ALJ "can"
consider. Id.B. No Abuse of Discretion in Punitive Damages Award
The remaining issue is whether the $250,000 punitive
damages award was unsupported by substantial evidence, contrary to
law, or clearly excessive. We conclude that the ALJ's choice of
award was not an abuse of discretion.
1. Background
An employee who prevails on a FRSA retaliation claim
"shall be entitled to all relief necessary to make the employee
whole," 49 U.S.C. § 20109(e)(1), and the relief "may include
punitive damages in an amount not to exceed $250,000," id.§ 20109(e)(3).7 The purpose of punitive damages, both in the FRSA
and elsewhere, is twofold: "to punish [a wrongdoer] for his
outrageous conduct and to deter him and others like him from
similar conduct in the future." Smith v. Wade, 461 U.S. 30, 54
(1983) (quoting Restatement (Second) of Torts § 908(1) (1979)).
When Congress amended the FRSA in 2007 to expand anti-
retaliation protections and shift enforcement authority from
7 Prevailing plaintiffs are also entitled to "compensatory
damages, including compensation for any special damages sustained
as a result of the discrimination, including litigation costs,
expert witness fees, and reasonable attorney fees." See 49 U.S.C.
§ 20109(e)(2)(C).
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arbitrators to the Department of Labor, it said that it was aiming
to address and rectify railroads' history of systematically
suppressing employee injury reports through retaliatory harassment
and intimidation. See Araujo v. N.J. Transit Rail Operations,
Inc., 708 F.3d 152, 156–57 & n.3, 159 & n.6 (3d Cir. 2013)
(discussing the legislative history of the 2007 FRSA amendment).
Congress's amendment not only gave the Department of Labor
enforcement authority but also put stronger tools in the
Department's toolbox: the statute's punitive damages cap rose from
$20,000 to $250,000.8 Compare 49 U.S.C. § 20109(c) (2006) (pre-
amendment), with id. § 20109(e)(3) (2012) (post-amendment).
As Pan Am acknowledges, the test for awarding punitive
damages in FRSA whistleblower cases is the same common law test
that Smith used for actions under 42 U.S.C. § 1983. See Worcester
v. Springfield Terminal Ry. Co., 827 F.3d 179, 182–84 (1st Cir.
2016) (applying Smith standard); BNSF Ry. Co. v. U.S. Dep't of
Labor, 816 F.3d 628, 642 (10th Cir. 2016) (same). We have
described the Smith test as a "reckless disregard standard,"
Worcester, 827 F.3d at 183, meaning that punitive damages are
warranted if a railroad acted "[w]ith malice or ill will or with
8 Post-amendment jury awards of punitive damages, under
the FRSA, are reduced to this statutory cap if necessary. See,
e.g., Barati v. Metro-North R.R. Commuter R.R. Co., 939 F. Supp.
2d 143, 145 (D. Conn. 2013) (granting motion to reduce $1,000,000
jury award of punitive damages to $250,000).
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knowledge that its actions violated federal law or with reckless
disregard or callous indifference to the risk that its actions
violated federal law," id. at 182 (alteration and emphases in
original).
2. An Award of Punitive Damages Was Warranted
Substantial evidence in the record supports the ALJ's
conclusion that punitive damages were warranted on account of Pan
Am's "reckless or callous disregard for [Raye's] rights, as well
as intentional violations of federal law." Smith, 461 U.S. at 51.
The ALJ specifically found that Pan Am had willfully retaliated
against Raye for filing an OSHA complaint and that it had
"consciously disregarded Raye's statutorily-protected rights under
the FRSA, and in fact intentionally interfered with the exercise
of those rights." Those were reasonable inferences, in light of
the facts developed at the ALJ hearing.
3. A Statutory-Maximum Award of Punitive Damages Was Not
Clearly Excessive
The evidence on which the punitive damages award rests
does not pertain solely to how Pan Am treated Raye. The ALJ's
opinion cites several additional reasons, all supported by
substantial evidence. For example, Pan Am exaggerated the
seriousness of the supposedly "major" discrepancy, both in the
second Notice of Hearing and in Schultz's testimony before the
ALJ, and Schultz's dissembling gave reason to be concerned about
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Pan Am's culture. Pan Am's choice to charge Raye with dishonesty
was made not by a low-level manager but by its corporate legal
department and a Vice President. Pan Am chose not to make use of
OSHA's built-in factfinding process to address the discrepancy,
and instead threatened Raye with the dishonesty charges. Finally,
Pan Am appeared to the ALJ to have a corporate culture more focused
on retaliation than on safety: the ALJ found that 99% of injuries
at Pan Am that were reportable to the FRA triggered formal charges
against the injured employee, in stark contrast to Pan Am's
apparent nonchalance about its own responsibility to improve
safety and remove hazards like the one Raye reported.
The difficult question is not whether there should have
been a punitive damages award at all, but whether Pan Am has shown
that a $250,000 award, set at the statutory maximum, was an abuse
of discretion. See Cooper Indus., Inc. v. Leatherman Tool Grp.,
Inc., 532 U.S. 424, 432–33 (2001) (federal appellate courts
generally review the size of a punitive damages award for abuse of
discretion, assuming that "no constitutional issue is raised" and
that the award was within statutory limits).9 Our deference to
9 Pan Am has not challenged the size of the punitive
damages award on constitutional grounds. Cf. State Farm Mut. Auto
Ins. Co. v. Campbell, 538 U.S. 408, 416–17 (2003) (discussing the
"procedural and substantive constitutional limitations" applicable
to punitive damages awards); Méndez-Matos v. Municipality of
Guaynabo, 557 F.3d 36, 47, 52–56 (1st Cir. 2009) (reducing a jury's
punitive damages award to comport with due process).
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the ALJ's choice, to be sure, "is not boundless." United States
ex rel. D'Agostino v. EV3, Inc., 802 F.3d 188, 192 (1st Cir. 2015).
Still, in this instance, we will not disturb the $250,000 award.
The Supreme Court has recently reminded us about the
reasons for an abuse of discretion standard: "basic principles of
institutional capacity counsel in favor of deferential review"
when a factfinder's decision "turns not on 'a neat set of legal
rules' but instead on the application of broad standards" to the
specific and nuanced facts of a particular case. McLane Co. v.
EEOC, No. 15-1248, 2017 WL 1199454, at *7 (U.S. Apr. 3, 2017)
(quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). In cases
like this one, a Department of Labor ALJ's subject matter expertise
and experience with whistleblower cases make him or her well suited
to make the "discretionary moral judgment[s]," Smith, 461 U.S. at
52, and the "fact-intensive, close calls," McLane, 2017 WL 1199454,
at *7 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404
(1990)), that must inform any punitive damages determination --
whether under the FRSA or another statute. Abuse of discretion
review is not "no review at all," Wilton v. Seven Falls Co., 515
U.S. 277, 289 (1995), but when applying that standard we will
refrain from "reweighing evidence and reconsidering facts already
weighed and considered by the [ALJ]," McLane, 2017 WL 1199454, at
*7 (quoting Cooter & Gell, 496 U.S. at 404).
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The ALJ was entitled, within wide limits, to decide how
much weight to afford to each of the relevant facts, to assess the
credibility of the witnesses at the ALJ hearing, and to make the
fact-sensitive and "discretionary moral judgment[s]" that Smith
requires. 461 U.S. at 52. The question of excessiveness is a
close one, but like the ARB we ultimately see no abuse of
discretion in the ALJ's conclusion that a maximum award was
warranted here to accomplish the FRSA's goal of punishing and
deterring retaliatory conduct by employers like Pan Am.
III.
We deny Pan Am's petition for review. Costs are awarded
against Pan Am.
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