Judges: Per Curiam
Filed: May 21, 2018
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 21, 2018* Decided May 21, 2018 Before JOEL M. FLAUM, Circuit Judge MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge No. 17-2862 JACEK SAMSON, Petition for Review of a Decision of the Petitioner, Administrative Review Board. v. No. 15-065 UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, Respond
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 21, 2018* Decided May 21, 2018 Before JOEL M. FLAUM, Circuit Judge MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge No. 17-2862 JACEK SAMSON, Petition for Review of a Decision of the Petitioner, Administrative Review Board. v. No. 15-065 UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, Responde..
More
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2018*
Decided May 21, 2018
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17‐2862
JACEK SAMSON, Petition for Review of a Decision of the
Petitioner, Administrative Review Board.
v. No. 15‐065
UNITED STATES DEPARTMENT OF
LABOR, ADMINISTRATIVE REVIEW
BOARD,
Respondent,
and
SOO LINE RAILROAD COMPANY,
d/b/a CANADIAN PACIFIC,
Intervening‐Respondent.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17‐2862 Page 2
O R D E R
Canadian Pacific, a railroad company, fired Jacek Samson after he walked off his
job as a conductor twice in one week and refused to follow his supervisors’ instructions.
Samson filed an administrative complaint, alleging that Canadian Pacific required him
to work in hazardous conditions and that it fired him because he objected to those
conditions, in violation of the Federal Railroad Safety Act, 49 U.S.C. § 20109(b). The
U.S. Department of Labor affirmed an administrative law judge’s dismissal of the
complaint. The ALJ had found that Samson’s belief about hazardous conditions was
unreasonable and had credited the company’s testimony that it fired Samson only
because he abandoned his job. Because nothing in the record contradicts the agency’s
findings, we deny Samson’s petition for review.
Both incidents in which Samson walked off the job occurred in early 2013. On
February 20, Samson was working with a crew to perform “switches” (disassembling
and reassembling trains). Nick Mugavero, a “yardmaster” in charge of all of the crews
that day, told Samson to change how he performed a switch. Samson relayed the
instruction to his crew. Mugavero then asked Samson about a couple of train cars that
he believed were incorrectly labeled. At that point, Samson felt that Mugavero was
distracting him and usurping the conductor’s authority over the crew. Samson asked
Mugavero if he was the conductor—implying that Mugavero should back off.
Mugavero responded by giving Samson two options: follow his instructions about how
to complete the switch, or go home and answer for his conduct in an insubordination
hearing. Samson chose the latter option and abandoned his position.
Before he left that day, Samson stopped by the office of the superintendent and
filled out a “Safety / Hazard Report.” He described his dispute with Mugavero:
Trainmaster Nick Mugavero came to the east end c‐yard and began telling
1399 two men crew how to switch tracks creating unsafe conditions for the
crew. He was constantly interfering and causing confusion, crew member
insisted on being able to do the switching, Trainmaster Mugavero refused.
The superintendent concluded in a written response that Mugavero’s supervision did
not constitute a hazardous or unsafe condition.
The second incident occurred two days later. A different yardmaster, Mark
Lashbrook, approached Samson at work. Although their accounts of their interaction
vary, it is undisputed that Lashbrook told Samson that he must meet the company’s
No. 17‐2862 Page 3
standards for switching a certain number of cars per shift, and that Samson responded
by saying that he must “work safely.” Lashbrook then remarked that he had just seen
Samson complete a switch unsafely. Samson felt pressured by this remark to work
faster. He decided to leave his shift early even though Lashbrook and another
yardmaster asked him multiple times to stay on duty.
Samson’s conduct received several layers of review. Canadian Pacific held two
separate disciplinary hearings based on the two incidents. Both hearing officers
recommended immediate dismissal, each concluding that by walking off the job on both
February 20 and 22, Samson was insubordinate. A multi‐level review process at
Canadian Pacific commenced, ending with Samson’s discharge for his misconduct.
Samson then sought administrative review action under the Federal Railroad Safety
Act. He alleged that Canadian Pacific fired him in retaliation for refusing to work under
unsafe conditions and for reporting a hazardous condition. See 49 U.S.C. § 20109(b), (d).
An ALJ held a hearing, see id. §§ 20109(d)(2)(A); 42121(b)(2)(A), at which Samson,
Mugavero, Lashbrook, and other company representatives testified.
After the administrative hearing, the ALJ dismissed Samson’s complaint. The
ALJ discredited Samson’s testimony about his supervisors’ motivations and credited
the testimony of the company’s witnesses. Those witnesses said that Samson’s two
refusals to follow orders to remain at work—and nothing else—led the company to fire
him. Next, the ALJ concluded that Samson’s belief that he had to leave work on
February 20 and 22 to remain safe was objectively unreasonable. First, although Samson
maintained that Mugavero had distracted him on February 20, Samson left his shift after
the distraction had ended and while he was with his crew in a safe location. Second,
Samson’s conversation with Lashbrook on February 22 also occurred under safe
conditions. Third, Samson acknowledged that neither supervisor’s instructions were
themselves unsafe, and that both supervisors gave him multiple opportunities to stay at
work. Because both refusals to work were unreasonable, the ALJ ruled that neither was
protected activity and Samson could be fired for them. Furthermore, the ALJ added,
because no objectively hazardous condition was present on February 20, the
“Safety / Hazard Report” that Samson filled out that day also was not protected.
Samson has challenged this ruling. He first appealed to the U.S. Department of
Labor’s Administrative Review Board, which summarily affirmed the ALJ’s decision.
He now seeks direct review by this court, see 49 U.S.C. § 42121(b)(4)(A). As in other
administrative contexts, we review the ARB’s decision as supplemented by the ALJ’s
reasoning. See Orellana‐Arias v. Sessions, 865 F.3d 476, 488–89 (7th Cir. 2017). The
No. 17‐2862 Page 4
agency’s “findings of fact must be upheld if supported by substantial evidence,”
Roadway Express, Inc. v. U.S. DOL, 612 F.3d 660, 664 (7th Cir. 2010), but we review the
agency’s legal conclusions de novo, giving deference to the reasonable constructions of
applicable statutes, BNSF Ry. Co. v. U.S. DOL, 816 F.3d 628, 638 (10th Cir. 2016).
The Federal Railroad Safety Act protects railroad employees in two ways that are
relevant to this case. The first protection is for reporting safety concerns. An employee
may not be fired for “reporting, in good faith, a hazardous safety or security condition.”
49 U.S.C. § 20109(b)(1)(A). The second protection is for refusing to work in hazardous
conditions, but this protection is more limited. An employee who refuses to work is
protected from discharge only if the refusal is made “in good faith” and if a “reasonable
individual in the circumstances then confronting the employee” would find (1) that the
hazardous condition presented an “imminent danger of death or serious injury” and
(2) that “the urgency of the situation” did not “allow sufficient time to eliminate the
danger without” refusing to work. Id. § 20109(b)(1)(B), (b)(2)(A)–(B). In both cases, the
fired employee must show that the protected activity was a contributing factor to the
discharge. See BNSF Ry. Co., 816 F.3d at 638.
Samson challenges only the ALJ’s conclusion that his “Safety / Hazard Report”
was not protected activity—he does not challenge the ALJ’s parallel conclusion about
his work refusals. Samson contends that the ALJ erroneously applied the heightened
requirements for refusals to work under 49 U.S.C. § 20109(b)(2) when deciding if his
hazard report was protected activity. The ALJ did indeed recite the standard from
§ 20109(b)(2), the work‐refusal provision, when introducing his analysis of Samson’s
hazard report. And the ALJ went on to rule that the hazard report was not protected
activity for the same reasons that the February 20 work refusal was not protected.
But the ALJ’s error of law about the report does not require a remand if the error
is harmless. See Lopez v. Lynch, 810 F.3d 484, 492 (7th Cir. 2016). And the error is
harmless even if the hazard report was protected activity, if it played no role in
Samson’s firing—that is, if Canadian Pacific fired Samson only for insubordination.
See Armstrong v. BNSF Ry. Co., 880 F.3d 377, 382 (7th Cir. 2018) (explaining that
retaliation must play “at least some role” in adverse action). Because the ALJ did not
decide this question, the Chenery doctrine limits our review of it. See SEC v. Chenery
Corp., 318 U.S. 80, 87–88 (1943); Ferreira v. Lynch, 831 F.3d 803, 809–10 (7th Cir. 2016). Yet
Chenery does not require a remand if one “would be futile because it is clear what the
decision has to be.” Lopez, 810 F.3d at 492; see Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir.
2010); Illinois v. ICC, 722 F.2d 1341, 1348–49 (7th Cir. 1983).
No. 17‐2862 Page 5
Based on the ALJ’s credibility findings, a remand would be futile in this case. The
ALJ found credible the company’s witnesses who all testified that Samson’s refusal to
follow his supervisors’ instructions, not his filing of the hazard report, led to his firing.
The ALJ rejected as not believable Samson’s contrary testimony, and Samson presented
no other evidence that his hazard report factored into the decision to fire him. Samson
challenges the ALJ’s credibility findings, but we are required to give “great deference”
to such determinations. Mercier v. U.S. DOL, 850 F.3d 382, 388 (8th Cir. 2017);
see also Summers v. Berryhill, 864 F.3d 523, 528 (7th Cir. 2017). Samson also points to the
timing of the decision to fire him, but timing alone is not a basis upon which to infer
retaliation. See Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012). Thus even if the
ALJ should have ruled that the hazard report was protected activity, the ALJ’s
credibility findings inescapably lead to the conclusion that the report played no role in
Samson’s firing. So the discharge was lawful, and a remand to the ALJ on that question
is thus pointless.
Samson raises another argument, but it is unavailing. He contends that the ALJ
should have “sanctioned” Canadian Pacific for not providing him with recordings of
radio conversations that he had during the two incidents in question. He says that he
asked the ALJ for the recordings during discovery, but Canadian Pacific replied that
they did not have them. Samson did not believe the company because Mugavero had
testified during the earlier disciplinary hearing that he had reviewed them. Thus,
Samson argues, the ALJ should have imposed an “adverse inference” against Canadian
Pacific. But imposing an adverse inference against a party is left to the discretion of the
factfinder. Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir. 2013). Although Samson
brought up the issue of the recordings during his hearing before the ALJ, he did not ask
the ALJ to draw an adverse inference. The ALJ did not abuse his discretion by declining
to grant relief to Samson that Samson never requested.
Samson’s additional arguments lack merit and require no further discussion.
Accordingly we DENY his petition for review.