Ben Winch v. U.S Department of Labor, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15999
________________________
Agency No. 15-020
BEN WINCH,
Petitioner,
versus
U.S. DEPARTMENT OF LABOR,
ADMINISTRATIVE REVIEW BOARD,
SECRETARY, U.S. DEPARTMENT OF LABOR,
Respondents,
CSX TRANSPORTATION, INC.,
Intervenor.
________________________
Petition for Review of a Decision of the
Department of Labor
________________________
(February 13, 2018)
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Before ROSENBAUM, JILL PRYOR, and RIPPLE,∗ Circuit Judges.
PER CURIAM:
Petitioner Ben Winch appeals a decision of the Administrative Review
Board (“ARB”) of the Department of Labor. That decision affirmed his dismissal
from his employer, CSX Transportation, Inc. (“CSX”), after he called in sick and
did not attend work. Winch asserts that he engaged in the protected activities of
reporting and refusing to work in an unsafe condition under the Federal Railroad
Safety Act (“FRSA”), 49 U.S.C. § 20109(b), so the ARB’s decision should be
reversed and his petition granted. After reviewing the record on appeal and having
had the benefit of oral argument, we now deny Winch’s petition.
I.
The FRSA was enacted “to promote safety in every area of railroad
operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101.
The FRSA’s anti-retaliation provisions prohibit, in relevant part, an employer from
disciplining an employee under the following circumstances:
(b) Hazardous safety or security conditions.—
(1) A railroad carrier engaged in interstate or foreign
commerce, or an officer or employee of such a railroad carrier,
shall not discharge, demote, suspend, reprimand, or in any other
way discriminate against an employee for—
∗ Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
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(A) reporting, in good faith, a hazardous safety or
security condition;
(B) refusing to work when confronted by a hazardous
safety or security condition related to the performance of
the employee’s duties, if the conditions described in
paragraph (2) exist; or
(C) refusing to authorize the use of any safety-related
equipment, track, or structures, if the employee is
responsible for the inspection or repair of the equipment,
track, or structures, when the employee believes that the
equipment, track, or structures are in a hazardous safety
or security condition, if the conditions described in
paragraph (2) exist.
(2) A refusal is protected under paragraph (1)(B) and (C) if—
(A) the refusal is made in good faith and no reasonable
alternative to the refusal is available to the employee;
(B) a reasonable individual in the circumstances then
confronting the employee would conclude that—
(i) the hazardous condition presents an imminent
danger of death or serious injury; and
(ii) the urgency of the situation does not allow
sufficient time to eliminate the danger without
such refusal; and
(C) the employee, where possible, has notified the
railroad carrier of the existence of the hazardous
condition and the intention not to perform further work,
or not to authorize the use of the hazardous equipment,
track, or structures, unless the condition is corrected
immediately or the equipment, track, or structures are
repaired properly or replaced.
49 U.S.C. § 20109. This case involves § 20109(b)(1)(A), (b)(1)(B), and (b)(2).
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II.
Winch worked as a conductor and remote control operator at CSX, a railroad
carrier, where his job entailed riding and running along the sides of moving trains
and cars, looking for debris. At about 8:15 p.m. on January 19, 2012, Winch called
the crew operator at CSX to inform the company he was ill and to request that he
be marked off as “sick” for the next day, January 20. He told the operator only his
name, his identification number, and his need to be marked off sick. Winch did
not describe his symptoms. Nor did he state that his presence at work would be a
safety concern that would endanger himself and others or otherwise be a hazard.
The next day, January 20, Winch visited his family doctor, who examined
him, did blood work, and diagnosed him with acute gastroenteritis. She prescribed
him an anti-nausea medicine, told him to stay hydrated, and told him not to go to
work for two days. That same day, Winch had his doctor fax a note to CSX
regarding his illness in an attempt to have his absence excused.
CSX’s work-availability policy subjects employees to discipline if they have
two or more “non-compensated” absences in a twenty-eight-day cycle, which
could include an absence based on an illness that does not require treatment at an
emergency room or urgent-care center. The policy delineates a progression of
discipline based on the number of violations over a certain period of time.
Following several violations and disciplinary suspensions, CSX conducts a review
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of the employee’s complete attendance and work history, along with any
extraordinary issues related to a specific period of uncompensated unavailability,
to determine whether to dismiss the employee.
Winch had a history of receiving discipline for failure to comply with CSX’s
safety and work-availability policies, including a dismissal in 2006, after which he
was rehired six months later, and multiple suspensions in 2009. Before the
absence at issue, Winch’s absences placed him on the final phase of review, and he
was warned that any future violations could result in dismissal. After he missed
work on January 20, Winch marked off sick another day in February. So a full
review of his attendance record took place, and he was dismissed on May 3, 2012.
III.
Winch filed a complaint with the Department of Labor’s Occupational
Safety and Health Administration (“OSHA”) in June 2012 alleging that his absence
on January 20 was in compliance with his doctor’s orders not to go to work and
that in firing him, CSX violated 49 U.S.C. § 20109(c)(2).1 OSHA denied the
complaint based on Winch’s history of attendance and safety violations.
Winch objected to OSHA’s findings and requested a hearing with an
Administrative Law Judge (“ALJ”). Before the ALJ, in addition to asserting that
his termination violated 49 U.S.C. § 20109(c)(2), Winch argued for the first time
1 49 U.S.C. § 20109(c)(2) precludes railroad carriers from disciplining “ an employee . . .
for following orders or a treatment plan of a treating physician.”
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that CSX violated the reporting and refusal provisions of 49 U.S.C. §
20109(b)(1)(A) and (B). The ALJ rejected Winch’s claim under § 20109(c)(2).
But he determined on the basis of § 20109(b) that CSX’s dismissal of Winch was
nonetheless wrongful because “it was reasonable for Complainant to conclude that
it would have been unsafe to go to work.”
CSX appealed, and the ARB reversed. The ARB assumed, without
deciding, that reporting one’s own illness can constitute “reporting” a hazardous
condition, as set forth in § 20109(b)(1)(A). Nevertheless, as relevant here, it
concluded that Winch failed to satisfy the conditions for “reporting” under that
provision. The ARB explained, “Even the most liberal reading of section
20109(b)(1)(A) requires that some information be reported pointing to the
‘hazardous condition’ at the railroad. As a matter of law, the extremely limited
information Winch reported falls short of ‘reporting . . . a hazardous . . .
condition.’” The ARB further noted that “‘reporting a hazardous condition’ is
[also] essential to a claim of protected ‘refusal’ under section 20109(b)(2).”
Finally, as relevant here, the ARB held that the statute requires the employee to
“notif[y]” the employer of the hazardous condition if possible, and Winch did not.
Winch appeals the ARB’s decision.
IV.
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The Administrative Procedure Act, 5 U.S.C. § 706 (“APA”), governs
judicial review of the ARB’s final decision. DeKalb Cty. v. U.S. Dep’t of Labor,
812 F.3d 1015, 1020 (11th Cir. 2016). Under the APA, the Court affirms the
ARB’s decision unless it is “unsupported by substantial evidence” or is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5
U.S.C. § 706(2)(A), (E); Stone & Webster Constr., Inc. v. U.S. Dep’t of Labor, 684
F.3d 1127, 1132 (11th Cir. 2012). So long as substantial evidence in the record as
a whole supports factual findings, we must affirm them. See DeKalb Cty., 812 F.3d
at 1020 (citing 5 U.S.C. § 706(2)(E) (APA standard for formal adjudications)).
As for the ARB’s legal conclusions, we review them de novo but apply due
deference to the Secretary of Labor’s interpretation of the statutes which he
administers, in accordance with Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). See Fields v. U.S. Dep’t of Labor
Admin. Review Bd., 173 F.3d 811, 813 (11th Cir. 1999) (“Appropriate deference
must be given to statutory interpretation by the ARB.”).
V.
After careful review, we find that the ARB’s fact-specific decision was
supported by substantial evidence. Like the ARB, we do not opine on whether
calling in to report one’s own illness can qualify as “reporting . . . a hazardous . . .
condition” under § 20109(b). Assuming for purposes of this opinion that it can,
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the ARB relied on substantial evidence in concluding that Winch did not actually
“report[] . . . a hazardous . . . condition” under § 20109(b)(1)(A). As the ARB
noted, when Winch called in sick, he told the crew operator only his name, his
identification number, and his desire to be marked off sick; he failed to list or
describe any of his symptoms and how they would impact the performance of his
duties. Nor did Winch otherwise put CSX on notice that he was “reporting . . . a
hazardous . . . condition.” Indeed, nothing in his call indicated that he was
attempting to trigger this hazardous-condition provision as opposed to simply
requesting a sick day.
And because Winch did not, as § 20109(b)(2)(C) requires, “notif[y]” CSX
that a “hazardous condition” existed, despite his ability to do so, the ARB
concluded that Winch’s claim fared no better under § 20109(b)(1)(B). This finding
is supported by substantial evidence for the same reasons as the ARB’s conclusion
that Winch failed to “report[] . . . a hazardous . . . condition” under §
20109(b)(1)(A).
VI.
For the foregoing reasons, we deny Winch’s petition.
PETITION DENIED.
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