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Grand Trunk Western Railroad Co. v. United States Department of Labor

United States Court of Appeals, Sixth Circuit

November 20, 2017

Grand Trunk Western Railroad Company, Petitioner,
v.
United States Department of Labor, Administrative Review Board, Respondent, Webster Williams, Jr., Intervenor.

          Argued: October 11, 2017

         On Petition for Review from the United States Department of Labor's Administrative Review Board. Nos. ARB 14-092; ARB 15-008.

         ARGUED:

          Holly M. Robbins, LITTLER MENDELSON, P.C., Minneapolis, Minnesota, for Petitioner.

          Sarah Kay Marcus, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent.

          Robert B. Thompson, HARRINGTON, THOMPSON, ACKER & HARRINGTON, LTD., Chicago, Illinois, for Intervenor.

         ON BRIEF:

          Holly M. Robbins, Joseph D. Weiner, LITTLER MENDELSON, P.C., Minneapolis, Minnesota, for Petitioner.

          Sarah Kay Marcus, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent.

          Robert B. Thompson, Robert E. Harrington, III, HARRINGTON, THOMPSON, ACKER & HARRINGTON, LTD., Chicago, Illinois, for Intervenor.

          Harry W. Zanville, La Mesa, California, Jacqueline M. Holmes, JONES DAY, Washington, D.C., for Amici Curiae.

          Before: KEITH, McKEAGUE, and STRANCH, Circuit Judges.

          OPINION

          McKEAGUE, CIRCUIT JUDGE

          Despite having had its position derailed by every federal court to date, the Department of Labor's Administrative Review Board steams ahead. The Board interprets a retaliation clause in the Federal Railroad Safety Act (FRSA)-located in a recent amendment regarding "Prompt medical attention, " 49 U.S.C. § 20109(c)-to provide sick leave to all railroad employees for off-duty injuries and illnesses.

         In this case, the Board's broad interpretation meant Webster Williams, Jr.-a Grand Trunk employee with a non-work-related history of anxiety and depression-was granted relief from his termination for six collectively-bargained-for-as-unexcused absences because he was "following . . . a treatment plan of [his] treating physician." 49 U.S.C. § 20109(c)(2).

         Traditional tools of statutory interpretation lead us to a different conclusion: subsection (c)(2), just like its preceding subsection (c)(1), applies only to on-duty injuries. Thus, we grant the petition and remand with instructions that the proceeding below be dismissed.

         I

         Webster Williams, Jr. has a lifelong history of anxiety and depression. This history predates his employment with Grand Trunk Western Railroad Company (Grand Trunk), where Williams worked as a locomotive engineer from 1995 until his termination for excessive absences in 2012.

         In 2006, Williams began seeing Dr. John Bernick for a variety of conditions, including hypertension, insomnia, anxiety, and depression. As a part of his treatment plan, Dr. Bernick prescribed Xanax for Williams to take as a "stop gap" measure when Williams felt he needed to take the medication for his anxiety and depression. But he did so with two additional instructions: first, he referred Williams to a psychiatrist for further treatment; second, he advised Williams that in addition to taking Xanax, he "shouldn't work" during an anxiety episode if he would not feel safe. In December 2011, Williams missed eight days of work because of his anxiety and depression. Although Williams's absences comported with at least part of Dr. Bernick's treatment plan for his medical conditions, Grand Trunk deemed six of these missed work days to be "unexcused absences" and terminated Williams in January 2012 for excessive absenteeism.[1]

         On March 1, 2012, Williams filed a complaint with the Occupational Safety and Health Administration (OSHA) for wrongful retaliation and termination. On February 6, 2013, OSHA dismissed the complaint because Williams's absences for a "non-work-related illness" did not constitute qualifying "protected activity."

         Williams appealed OSHA's dismissal to an administrative law judge (ALJ) on February 25, 2013. After an evidentiary hearing and a review of the parties' briefs, on August 11, 2014, the ALJ held that Williams had engaged in protected activity because he was following the treatment plan of his physician and the protected activity was a factor in Grand Trunk's decision to terminate Williams's employment. Thus, the ALJ awarded damages and attorney's fees to Williams. The ALJ based his finding that Williams's treatment plan was protected-even though it was for an off-duty illness-on the Administrative Review Board's holding in Bala v. Port Authority Trans-Hudson Corp., No. 12-048, 2013 WL 5872050 (Admin. Rev. Bd. Sept. 27, 2013).[2] Grand Trunk appealed the ALJ's decision to the Board on August 21, 2014.

         The Board affirmed the ALJ's decision in Williams v. Grand Trunk W. R.R. Co., No. 2016 WL 7742872 (Admin. Rev. Bd. Dec. 5, 2016), and declined to apply the Third Circuit's decision in Port Authority Trans-Hudson Corp. v. Sec'y, U.S. Dep't of Labor, 776 F.3d 157, 161-62 (3d Cir. 2015) (PATH), which held that § 20109(c) only applies to treatment plans for on-duty injuries. This petition for review followed.

         II

         "A petition for review of an order entered by the Board pursuant to the FRSA is governed by the Administrative Procedure Act." Norfolk S. Ry. Co. v. Perez, 778 F.3d 507, 511 (6th Cir. 2015) (citing 49 U.S.C. § 20109(d)(4)). The primary question this case presents is one of statutory interpretation. This is a question of law we review de novo. Id. at 511 ("[T]he Board's legal conclusions are reviewed de novo.").

         Everyone agrees that the FRSA was amended in 2008 to provide railroad workers with additional protections for on-duty injuries. But does a retaliation provision in the FRSA-nested in a section providing for "Prompt medical attention, " 49 U.S.C. ยง 20109(c)-encompass a physician's treatment plan ...


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