NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       DEC 21 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

STEPHEN THORSTENSON,                            No.    20-70211

                Petitioner,

 v.                                             MEMORANDUM*

U.S. DEPARTMENT OF LABOR,

                Respondent,

BNSF RAILWAY COMPANY,

                Intervenor.

                     On Petition for Review of an Order of the
                               Department of Labor

                     Argued and Submitted December 8, 2020
                              Seattle, Washington

Before: McKEOWN and WATFORD, Circuit Judges, and ROTHSTEIN,**
District Judge.

      Petitioner Stephen Thorstenson challenges the final decision and order of

Respondent U.S. Department of Labor’s 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.
upholding an Administrative Law Judge ruling denying Thorstenson relief in his

action alleging that Intervenor BNSF Railway Co. (“BNSF”) retaliated against him

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 reverse and

remand.

      The ARB’s decision erred in two respects. First, the ARB rejected

Thorstenson’s 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. Notifying the railroad carrier of a work-related

personal injury is an enumerated protected activity under the FRSA. See 49 U.S.C.

§ 20109(a)(4). A violation to the FRSA occurs where, as here, an employee is

disciplined for failure to comply with a railroad carrier’s time or manner reporting

rule even though its requirements could not reasonably be met. The following

circumstances made it virtually impossible for Thorstenson to know he had

experienced a new injury in time to comply with BNSF’s 72-hour reporting rule:

the injury presented as an aggravation to an existing injury which Thorstenson had

already reported, his injury did not require him to miss work until after the 72-hour

period had expired, and a medical expert examining him within the 72-hour period

did not identify his symptoms as a new injury or take him off work. The fact that

BNSF staff, including Thorstenson’s supervisor, initially did not know that


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Thorstenson’s symptoms required him to file a new injury report further

underscores the unreasonableness of expecting Thorstenson to have known he was

required to file such a report and disciplining him because he did not.

Accordingly, 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.

      Second, the ARB imposed a new burden of proof for causation under which

FRSA claimants must demonstrate that the protected activity was a proximate

cause of the adverse action. A proximate cause standard is inconsistent with this

circuit’s law regarding the requirements of the FRSA, which requires plaintiffs to

prove only that their protected conduct was a “‘factor, which alone or in

connection with other factors, tended[ed] to affect in any way the outcome of the

decision.’” Frost v. BNSF Ry. Co., 

, 1195 (9th Cir. 2019) (quoting

Rookaird v. BNSF Ry. Co., 

, 461 (9th Cir. 2018); cf. CSX Transp.,

Inc. v. McBride, 

, 694 (2011) (“[The Federal Employers’ Liability

Act] . . . did not incorporate any traditional common-law formulation of proximate

causation . . . . Whether the railroad’s negligent act was the immediate reason for

the [injury] . . . was an irrelevant consideration.” (internal quotation marks and

alterations omitted)).

      Accordingly, we reverse and remand to the ARB for further proceedings


                                           3                                    20-70211
consistent with this disposition.

      REVERSED and REMANDED.




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