Stephen Thorstenson v. Usdol ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN THORSTENSON, No. 22-70020
Petitioner,
LABR ARB No. 2018-0060
v.
U.S. DEPARTMENT OF LABOR, MEMORANDUM*
Respondent,
BNSF RAILWAY COMPANY,
Intervenor.
On Petition for Review of an Order of the
Department of Labor
Argued and Submitted February 16, 2023
San Francisco, California
Before: McKEOWN and WATFORD, Circuit Judges, and ROTHSTEIN,**
District Judge.
In this comeback case, Petitioner Stephen Thorstenson appeals a second
determination by the Department of Labor Administrative Review Board (“ARB”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
that BNSF Railway Company (“BNSF”) did not retaliate against Thorstenson in
violation of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20101 et seq.
We have jurisdiction under 49 U.S.C. § 20109(d)(4). We grant the petition and
remand for the limited purpose of determining compensatory damages.
In the initial appeal, we reversed and remanded the ARB’s affirmance of the
administrative law judge’s (“ALJ”) decision, explaining that the ARB had
improperly rejected the contention that “BNSF’s enforcement of its timely injury
reporting policy was so unreasonable and unduly burdensome that it constituted
retaliation when enforced on these facts.” Thorstenson v. U.S. Dep’t of Labor
(“Thorstenson I”), 831 F. App’x 842, 843 (9th Cir. 2020). We held that “because
it was virtually impossible for Thorstenson to comply with the injury reporting
rule, he was effectively disciplined for the protected activity of reporting a
workplace injury.” Id. On remand, the ARB took issue with our analysis of the
record, determined that our disposition did not implicate BNSF’s affirmative
defense, and affirmed once more the ALJ’s finding that BNSF had proven its
affirmative defense. Thorstenson now petitions for review.
The ARB erred in its interpretation of our prior decision, which foreclosed
its determination on remand that BNSF established its affirmative defense by clear
and convincing evidence. See id. (explaining that “BNSF’s enforcement of its
timely injury reporting policy was so unreasonable and unduly burdensome that it
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constituted retaliation when enforced on these facts” and “because it was virtually
impossible for Thorstenson to comply with the injury reporting rule, he was
effectively disciplined for the protected activity of reporting a workplace injury”).
In the alternative, we hold that substantial evidence does not support the ALJ’s
conclusion that BNSF proved by clear and convincing evidence that it would have
disciplined Thorstenson in the absence of his protected activity. See DeFrancesco
v. Union R.R. Co., ARB No. 13-057, 2015 WL 5781070, at *5 (ARB Sept. 30,
2015) (explaining that “‘[c]lear’ evidence means the employer has presented an
unambiguous explanation for the adverse action(s) in question,” and
“‘[c]onvincing’ evidence has been defined as evidence demonstrating that a
proposed fact is ‘highly probable’”).
It is clear from the administrative record that Thorstenson is entitled to
damages for his termination. The ALJ found that BNSF terminated Thorstenson
under its progressive discipline policy, relying on the earlier Level S for the late-
reported injury. We therefore conclude that a remand for further proceedings on
the merits would serve no useful purpose. We grant this petition, reverse the
decision of the ARB, and remand with instructions to remand to the ALJ for the
limited purpose of determining compensatory damages based on the existing
record, to be supplemented only as to post-hearing damages.
PETITION GRANTED and REMANDED with instructions.
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