Michael Brousil v. LABR ( 2022 )

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