Johnson v. ARB ( 2023 )

Case: 22-60152 Document: 00516599063 Page: 1 Date Filed: 01/05/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 22-60152 January 5, 2023
Lyle W. Cayce
Terrell Johnson, Clerk
Petitioner,
versus
Administrative Review Board, United States
Department of Labor,
Respondent.
Petition for Review of a Final Decision of
the United States Department of Labor
Administrative Review Board
ARB No. 2021-0041
Before Higginbotham, Jones, and Oldham, Circuit Judges.
Per Curiam:*
Terrell Johnson challenges Union Pacific Railroad Company’s refusal
to let him return to work. After exhausting his administrative remedies,
Johnson failed to win relief before the Department of Labor. We deny his
petition for review.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60152
I.
On April 14, 2015, Johnson was working as a railroad trackman for
Union Pacific Railroad Company (“Union Pacific”). While performing a job-
related task, he injured his neck, cervical spine, low back, lumbar spine, right
shoulder, and right elbow. He immediately reported his injuries in
compliance with company policy.
He then sought recovery under the Federal Employers’ Liability Act
(“FELA”) for his injuries against Union Pacific. During his jury trial in
federal district court in December 2016, he alleged that his injuries were
permanent and prevented him from returning to work. His treating
physician, Dr. Donald Dietze, testified that he didn’t expect Johnson could
ever perform his usual work duties again. The jury returned a verdict in
Johnson’s favor and awarded him $1,227,739 in damages—$832,739 of
which was specifically for future lost earnings and fringe benefits. Union
Pacific satisfied a reduced judgment of $993,121.60. Johnson continued
treatment for his injuries.
But then in October 2017, Johnson sought to return to work. In
December 2017—only one year after his trial—he underwent a standard
Union Pacific medical exam. The examiner checked a box on a form, which
stated that Johnson could return to work with no restrictions. In January
2018, Dr. Dietze also cleared him to return.
But when he submitted a request to return in February 2018, Union
Pacific denied his request. Specifically, a Union Pacific representative said he
was “estopped from returning to service” based on the evidence he
presented at the FELA trial. He was never formally terminated.
In May 2018, he filed a complaint under the Federal Railroad Safety
Act of 1982 (“FRSA”), 49 U.S.C. § 20109, with the Department of Labor
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Occupational Safety and Health Administration. The Secretary of Labor
ruled in favor of Union Pacific on its theory of judicial estoppel.
Johnson sought a de novo hearing before an Administrative Law Judge
(“ALJ”). He argued that his request to return to work was a protected
activity under 49 U.S.C. § 20109(c)(2) and Union Pacific’s refusal of his
request amounted to an unlawful termination. The ALJ dismissed his
complaint. It found that Johnson was effectively terminated and thereby
faced discipline, but it rejected his contention that his request was a protected
activity.1 Johnson appealed to the Department of Labor Administrative
Review Board (“ARB”), which fully agreed with the ALJ.
Johnson timely filed a petition for review. We have jurisdiction under
49 U.S.C. § 20109(d)(4). We review the ARB’s conclusions of law de novo
and its factual findings under the substantial evidence standard. Yowell v.
ARB, 993 F.3d 418, 421 (5th Cir. 2021). “Under the substantial evidence
standard, the ARB’s decision must be upheld if, considering all the evidence,
a reasonable person could have reached the same conclusion as the ARB.”
Id. (quotation omitted).
II.
We begin with the statute. FRSA provides safeguards for railroad
employees who engage in certain protected activities. 49 U.S.C. § 20109. Of
relevance here, it prohibits railroad carriers from disciplining employees for
seeking medical attention or following medical treatment plans. Id.§ 20109(c)(2). Specifically:
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The ALJ also found that his report of a work-related injury was protected under
§ 20109(a) but concluded that it was not a contributing factor to the refusal. Johnson does
not challenge this finding on appeal. (He solely argues that his request to return to work
was a protected activity.) Accordingly, he forfeits the point.
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A railroad carrier or person covered under this section may not
discipline, or threaten discipline to, an employee for requesting
medical or first aid treatment, or for following orders or a
treatment plan of a treating physician, except that a railroad
carrier’s refusal to permit an employee to return to work
following medical treatment shall not be considered a violation
of this section if the refusal is pursuant to Federal Railroad
Administration medical standards for fitness of duty or, if there
are no pertinent Federal Railroad Administration standards, a
carrier’s medical standards for fitness for duty. For purposes
of this paragraph, the term “discipline” means to bring charges
against a person in a disciplinary proceeding, suspend,
terminate, place on probation, or make note of reprimand on an
employee’s record.
Id.
To obtain relief for unlawful discipline under 49 U.S.C.
§ 20109(c)(2), an employee must satisfy the burden-shifting framework in 49
U.S.C. § 42121(b). See id. § 20109(d)(2)(A)(i). An employee must first show
that a specified protected behavior “was a contributing factor in the
unfavorable personnel action alleged in the complaint.” Id.
§ 42121(b)(2)(B)(i). We have interpreted this burden to mean that an
employee must prove by a preponderance of the evidence: (1) the employee
participated in a protected activity; (2) the employer knew the employee
participated in a protected activity; (3) the employee faced an unfavorable
personnel action; and (4) the protected activity was a “contributing factor”
in that unfavorable personnel action. Yowell, 993 F.3d at 421. Then the
burden shifts to the employer to show by clear and convincing evidence “that
the employer would have taken the same unfavorable personnel action in the
absence of [the employee’s protected] behavior.” 49 U.S.C.
§ 42121(b)(2)(B)(ii), (iv).
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The parties also do not dispute (3) that the employee faced an
unfavorable personnel decision or “discipline” under the statute. Nor do
they contest (2) that Union Pacific had notice of Johnson’s request. A Union
Pacific representative told Johnson in response to his request to return to
work, he was “estopped from returning to service.” Even though Johnson
was never formally terminated, Union Pacific refused to let him return,
effectively ending his employment.
The parties’ disagreement turns on (1) whether a request to return to
work is a protected activity under the statute, and (4) if so, whether this
request to return to work was a “contributing factor” in the termination
decision. Our inquiry begins and ends with (4).
Even if a request to work is protected activity, Johnson cannot show
that it contributed in any way to his termination. A contributing factor is “any
factor, which alone or in combination with other factors, tends to affect in
any way the outcome of the decision.” Halliburton, Inc. v. ARB, 771 F.3d 254,
263 (5th Cir. 2014) (quotation omitted). “Even such a broad interpretation,
though, has its limits.” Yowell, 993 F.3d at 424. And this case illustrates them
perfectly. Johnson’s request to return to work played no part in Union
Pacific’s refusal to allow him to return to work. Union Pacific’s decision was
based on the fact that it already paid Johnson almost a million dollars for a
purportedly permanent disability. As the ARB noted: “The parties stipulated
that Johnson was not allowed to return to work because he was estopped from
doing so based on his representation of permanent disability at the FELA
trial.” Johnson v. Union Pac. R.R. Co., ARB No. 2021-0041, ALJ No. 2019-
FRS-00005, slip op. at 5 (ARB Jan. 25, 2022) (emphasis added). Johnson has
produced no evidence to suggest any other factor, like animus or anything
else, played any role in Union Pacific’s decision. So we cannot say the ARB’s
decision is not supported by substantial evidence.
DENIED.
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