UNITED STATES DEPARTMENT OF LABOR

ADMINISTRATIVE REVIEW BOARD

CHRISTOPHER BALA, ARB Case No. 12-048

Complainant, OALJ Case No.

against,

PORT AUTHORITY TRANS-HUDSON CORPORATION,

Respondent.

______________________________________________________________

BRIEF OF AMICUS CURIAE

NATIONAL WHISTLEBLOWERS CENTER

______________________________________________________________

Richard R. Renner, rr@whistleblowers.org

Stephen M. Kohn, sk@whistleblowers.org

Attorneys for Amicus

National Whistleblowers Legal Defense and Education Fund

3233 P St., N.W.

Washington, DC 20007

(202) 342-6980

(202) 342-6984 (FAX)

STATEMENT OF INTEREST

Established in 1988, the National Whistleblowers Center (NWC) is a non-profit tax-exempt public interest organization. The Center regularly assists corporate employees throughout the United States who suffer from illegal retribution for lawfully disclosing violations of federal law. The NWC supports a nationwide attorney referral service for whistleblowers, and provides publications and training for attorneys and other advocates for whistleblowers. The NWC has participated as amicus curiae in the following cases: English v. General Electric, 110 S. Ct. 2270 (1990); EEOC v. Waffle House, 534 U.S. 279 (2002); Haddle v. Garrison, 525 U.S. 121 (1998); Vermont Agency Of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000); Beck v. Prupis, 529 U.S. 494 (2000); Sylvester v. Parexel International LLC, ARB No. 07-123, ALJ Nos. 2007-SOX-39 and 42 (ARB May 25, 2011).

In 2002, the NWC worked closely with the Senate Judiciary Committee in drafting the anti-retaliation provision of SOX and strongly endorsed its efforts to “prevent recurrences of the Enron debacle . . ..” 148 Cong. Rec. S. 7420 (daily ed. July 26, 2002) (remarks of Senator Leahy, quoting from letter signed by the NWC, Taxpayers Against Fraud and the Government Accountability Project).

Senator Leahy recognized the role of the NWC in the enactment of the Sarbanes Oxley Act (SOX) (S. Rep. 107-146, at 10):

This “corporate code of silence” not only hampers investigations, but also creates a climate where ongoing wrongdoing can occur with virtual impunity. The consequences of this corporate code of silence for investors in publicly traded companies, in particular, and for the stock market, in general, are serious and adverse, and they must be remedied. …

Unfortunately, as demonstrated in the tobacco industry litigation and the Enron case, efforts to quiet whistleblowers and retaliate against them for being “disloyal” or “litigation risks” transcend state lines. This corporate culture must change, and the law can lead the way. That is why S. 2010 is supported by public interest advocates, such as the National Whistleblower Center, the Government Accountability Project, and Taxpayers Against Fraud, who have called this bill “the single most effective measure possible to prevent recurrences of the Enron debacle and similar threats to the nation’s financial markets.”

The NWC advocates on behalf of whistleblowers because these truth-tellers uncover grave problems facing our federal government and our nation. Whistleblowers are a bulwark of accountability against those who would corrupt government or corporations. Therefore, aggressive defense of whistleblowers is crucial to any effective policy to address wrongdoing or abuse of power. Conscientious employees who point out illegal or questionable practices should not be forced to choose between their jobs and their conscience.

Whistleblowers who take an ethical stand against wrongdoing often do so at great risk to their careers, financial stability, emotional well-being and familial relationships. Society should protect and applaud whistleblowers because they are saving lives, preserving our health and safety, and protecting vital fiscal resources.

ARGUMENT

1. The frsa protects employees who follow doctor’s orders, regardless of the source of the injury or illness.

A. The plain language of the FRSA protects all covered employees when they seek to follow a medical treatment plan.

The ARB should reject respondent’s attempt to insert the words “who is injured during the course of employment” into 49 U.S.C. § 20109(c)(2). Respondent’s proposed revision flies in the face of the plain statutory language and is contrary to the public safety purpose of the FRSA.

Statutory analysis begins with the plain language of the statute, “the language used by Congress.” Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979)). To give best effect to the intent of Congress, those words must be given their “ordinary meaning.” Am. Tobacco Co., 456 U.S. at 68 (quoting United States v. Am. Trucking Ass’n, 310 U.S. 534, 542 (1940)). “By reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole,” a court can determine whether a statute is plain and unambiguous. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

Here, the historical context and statutory language provide no support for requiring medical treatment plans to arise from workplace injuries.^[1] While it is a worthy goal to encourage injured workers to report their injuries, the FRSA serves other purposes as well. Principal among these is the prevention of accidents that can injure or kill workers, passengers and bystanders. Safety is endangered when transit workers are pressured to work when their medical condition impairs their abilities. This is true whether the medical condition arises from a workplace injury, an injury outside of work, an injury of unknown source, a disease, or from any other cause. No matter how a worker is impaired, impaired employees should not be working on safety-sensitive means of transportation. The conduct of impaired employees does relate directly “to the railroad work environment” (quoting AAR brief, p. 7) even when the impairment arose at the employee’s home. The FRSA expresses the safety purpose explicitly at 49 U.S.C. § 20101, “The purpose of this chapter is to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” (Emphasis added.) Forcing employees to work in safety-sensitive signals when their doctors told them not to is contrary to the goal of promoting safety and reducing accidents. Impaired workers adversely affect the “railroad work environment.” (Quoting AAR brief, p. 14.) As a safety issue, the source of impairment matters not.

A Committee Report for a predecessor bill makes the goal of safety clear.

To date, scant attention has been paid to railroad safety at either the State or Federal levels. At present, there are several rail safety statutes, each one of which applies to some very specific safety hazard. The majority of these statutes are from 50 to 75 years old and were written when technology was quite different from what it is today. Some 95 percent of the causes of accidents on railroads are in no way covered by Federal statutes or by State law. The Federal Government, for example, has no jurisdiction over the design, construction, inspection, or maintenance of track, roadway, and bridges. Its authority with respect to freight and passenger cars applies only to safety appliances and certain aspects of the brake system.

S. Rep. No. 91-619, 91st Cong., 1st Sess. 4 (1969).

Courts have broadly construed the remedial purpose of whistleblower laws in general, and the FRSA in particular. Chicago Transit Authority v. Flohr, 570 F.2d 1305 (7th Cir. 1977) (Purpose of former chapter was to provide comprehensive and uniform safety regulations in all areas of railroad operations and to fill gaps in statutory safety coverage that had grown so large as to render impossible any meaningful rail safety regulations.); Iowa City-Montezuma R.R. Shippers Ass’n v. U.S., 338 F. Supp. 1383 (S.D. Iowa 1972) (Purpose of former chapter was promotion of safety and reduction of accidents, and not to prevent deterioration of railroad service.); U.S. v. Missouri Pac. R. Co., 417 F.Supp. 312 (E.D. Mo.1976), affirmed 553 F.2d 1156, 1157 (8th Cir. 1977) (“Congressional concern over the rapid increase in railroad accidents and the damage threatened by the release of volatile or explosive substances during such incidents lead [sic] to the enactment of the Federal Railroad Safety Act of 1970.” Citing 1970 U.S. Code Cong. and Admin. News, pp. 4104, 4105). Congress specifically included signal workers, such as the complainant here, within the scope of safety-sensitive railroad jobs subject to limits on hours of service. 49 U.S.C.A. § 20102(4)(A) (“safety-related railroad employee” means--(A) a railroad employee who is subject to chapter 211); 49 U.S.C.A. § 21101(3) (“employee” means a dispatching service employee, a signal employee, or a train employee).

Even in the unlikely event that Congress enacted FRSA with no concern for public safety, but only to encourage employees to report injuries, this Board would still be bound by the actual words Congress used. Courts will not ignore the plain, unambiguous language of a statute where it achieves its intended purpose without any absurd result but simply has additional unintended consequences. See Brogan v. United States, 522 U.S. 398, 403, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998) (“[I]t is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy -- even assuming that it is possible to identify that evil from something other than the text of the statute itself.”); accord United States v. Wade, 266 F.3d 574, 581 (6th Cir. 2001); see also Thompson v. Goetzmann, 337 F.3d 489, 493 (5th Cir. 2003) (“[W]e reiterate that the courts are not in the business of amending legislation. If the plain language of the [] statute produces the legislatively unintended result claimed by the government, the government’s complaint should be addressed to Congress, not to the courts, for such revision as Congress may deem warranted, if any.”); United States v. Arnold, 126 F.3d 82, 86 (2d Cir.1997) (“Notwithstanding that such a result was unintended, the Court declines any invitation to redraft the statute -- that is a task better left to the legislature.”); Leila G. Newhall Unitrust v. Comm’r of I.R.S.,105 F.3d 482, 487 (9th Cir. 1997) (“In any event, if the statute has unintended consequences, it is for Congress, not the courts, to take appropriate measures to avert them.”); In re: Appletree Mkts., Inc., 19 F.3d 969, 974-75 (5th Cir.1994); Olden v. LaFarge Corp., 383 F.3d 495, 506 (6th Cir. 2004).

The brief of the Association of American Railroads, pp. 5-6, argues for copying the phrase “during the course of employment,” from 49 U.S.C. § 20109(c)(1) and using it to limit the plain words of 49 U.S.C. § 20109(c)(2). AAR wants to rewrite the FRSA. The actual words Congress used are logical and clear in advancing the cause of safety. Subsection 20109(c)(1) assures prompt first aid and medical attention for injured workers. Since management has no role in securing medical attention for workers when they are off-duty and off-premises, this Subsection is naturally limited to injuries, “during the course of employment.” This is the time and place where management does have control over the provision of first aid and medical treatment.

However, Congress recognizes that employees may have medical impairments arising from other causes. Thus, in assuring that workers are not pressured into working in violation of a doctor’s orders, Congress included no such limitation in 49 U.S.C. § 20109(c)(2). This is a natural construction, made clear by the plain words of the statute, and consistent with the public purpose of safety. AAR’s brief, p. 6, is wrong in claiming that the phrase “medical or first aid treatment” in 49 U.S.C. § 20109(c)(2) references that same phrase in 49 U.S.C. § 20109(c)(1). It does not. There are no words in 49 U.S.C. § 20109(c)(2) saying that the “medical or first aid treatment” must be the “medical or first aid treatment” sought or received pursuant to 49 U.S.C. § 20109(c)(1). The phrase is limited to injuries “during the course of employment” in § 20109(c)(1), but not in § 20109(c)(2). The AAR brief is also wrong in claiming that the phrase “orders or a treatment plan of a treating physician” should also be limited to treatment for injuries arising from work. The plain language of Subsection 20109(c)(2) expresses no such limitation. To the contrary, 49 U.S.C. § 20109(c)(2) specifically permits railroads to bar “an employee” from returning “to work following medical treatment,” if that bar “is pursuant to Federal Railroad Administration medical standards for fitness of duty . . ..” These standards are not contingent on whether an injury occurred on or off the worksite, but look at the whole employee to assure that public safety will not be endangered by permitting this employee to work.

If AAR is successful in obtaining an interpretation of 49 U.S.C. § 20109(c)(2) that limits its application to workplace injuries, then AAR members would have no authority to exclude a returning employee who became unfit for duty as a result of a natural disease, an off-duty injury, or a medication that impairs perception and judgment. That would be an absurd result. Would a drug-addicted employee escape disqualification by proving that the addiction arose outside of work? Of course not. The existence of regulations for reporting workplace injuries serve a useful, but different, purpose than 49 U.S.C. § 20109(c)(2), 49 U.S.C.A. § 20102(4)(A) (“safety-related railroad employee”), 49 U.S.C.A. § 21101 (hours of service rules), and 49 C.F.R. Part 209. Impaired employees can create “hazardous safety conditions” and can relate “to railroad safety or security” (quoting AAR brief, p. 9). Thus, AAR’s arguments on pp. 7-9 of its brief present no valid reason to limit the protection for impaired employees to follow their doctor’s orders. By allowing management to bar unfit workers from returning to work, Congress made clear that it was “concerned about railroads forcing ill or injured employees to return to work when not fit for duty” (AAR brief, p. 9). The statute protects both the employee and the management when either one of them has reason to keep the employee out of safety-sensitive work. The employee must have a medical treatment plan, and the management must follow the FRA regulations, but either one can err on the side of safety and do so with the protection of law.

At the top of page 10, AAR dismisses the ALJ’s conclusion that “Section 20109(c)(2) exists . . . to discourage sick or injured workers from returning to duty while their impairment poses a threat to the safety of railroad passengers and fellow employees . . ..” AAR dismisses this concern by noting that Section 20109(b) protects employees when they report hazardous conditions. In making this argument, AAR has forgotten its extensive argument on pages 4-6 to look “at the structure of the statute as a whole,” to avoid “inordinate emphasis” on “a single phrase in a single subsection and ignoring the overall structure and purposes,” and finally to “create a coherent whole” of the law. AAR produces no authority for its claim that, “Congress was not concerned that railroad employees were being coerced by railroads into returning prematurely from non-workplace illnesses and injuries.” By disciplining Bala for failing to return to work sooner than his doctor directed, PATH is doing precisely that.

B. Protecting employees in following all medical treatment plans is consistent with precedent and safety principals developed under the STAA and AIR 21.

The protection for employees following medical treatment plans is consistent with the protections afforded to truck drivers under STAA and airline employees under AIR 21.^[2] Merely protecting employees who raise concerns about safety is sufficient to protect pilots and truck drivers who conclude that their present medical condition makes it unsafe for them to operate transportation equipment. Public policy does not support truck drivers driving when they feel sleepy. Melton v. Yellow Transportation, Inc., ARB No. 06-052, ALJ No. 2005-STA-2 (ARB Sept. 30, 2008) (explaining the “fatigue rule”); Johnson v. Roadway Express, Inc., ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000); Self v. Carolina Freight Carriers Corp., 89-STA-9 (Sec’y Jan. 12, 1990), slip op. at 9. As the STAA was enhanced in the same “9/11 Commission” legislation that created the FRSA employee protection, it is appropriate to interpret the laws in tandem.

Pilots and their employers do the right thing when they use “duty not including flying” (DNIF) status to protect passengers from pilots who do not feel up to flying. See, Furland v. v. American Airlines, Inc., ARB Nos. 09-102, 10-130, ALJ No. 2008-AIR-11 (ARB July 27, 2011); Douglas v. Skywest Airlines, Inc., ARB Nos. 08-070, 08-074, ALJ No. 2006-AIR-14 (ARB Sept. 30, 2009); Air Force Instruction 11-2 Special Air Missions (SAM) Air Crew Training, § 1.2.6.^[3]

Congress recognized the advantage of enacting employee protections for railroad workers that are consistent with other transportation workers. See House Committee Report No. 110-336 (Sept. 19, 2007) (hereinafter “House Report”), p. 39 (The FRSA employee protection “replaces the existing process for filing a petition for relief with the National Mediation Board with a process for filing such petitions with the Secretary of Labor, which is consistent with the whistleblower process for other transportation workers, including aviation personnel and drivers of commercial motor vehicles.”) H.R. 2095, Title II, was devoted to employee fatigue.^[4] Congress was specifically concerned about an NTSB report that employee fatigue played a role in a June 28, 2004 accident in Macdona, Texas. House Report, pp. 29-30, 37, 39.^[5] Three people died as a result of chlorine gas that escaped from a punctured car. Thirty others were injured. Naturally, Congress would protect employees who raise a concern about their own fitness for duty, and those who insist on following their doctor’s directions about whether they should work with safety-sensitive equipment.

Congress made the protection for following medical treatment plans unusually specific in the FRSA and NTSSA. Passengers facing risks from operator errors would not care if an employee is impaired by a workplace injury, an injury at home, or a disease of unknown origin. They would want that employee to feel free to decline safety-sensitive work so that no one will be put at such risk.

C. The Section title does not override the plain text in the body of the statute.

On page 6, AAR urges a limited construction based on the title of Section 20109(c), “Prompt medical attention.” It is well established that if there is a conflict between the title and the text of a statute, then the text controls. Brotherhood of R.R. Trainmen v. Baltimore & O. R. Co. 331 U.S. 519, 529 (1947)(“the title of a statute and the heading of a section cannot limit the plain meaning of the text.”). After all, if the title was expected to reflect all the details of the text, then it would just be a repetition of the entire text. Titles are too concise to capture the real effect of the text. Having titles aids the reader, even if the title references only the first provision of each section. That is not a reason to limit the rights expressly created by the full text of the statute. There is no danger in rendering a title a “nullity” (AAR brief, p. 6) as the substance of the law comes from the text, not the title.^[6]

D. The legislative record supports a safety-conscious interpretation of the FRSA.

On page 11, AAR’s brief cites the October 25, 2007, hearing of the House Committee on Transportation and Infrastructure entitled, “Impact of Railroad Injury, Accident, and Discipline Policies on the Safety of America’s Railroads.”^[7] Contrary to AAR’s claim, the hearing record shows that the Committee members had a broad and overarching concern for safety that transcends merely encouraging workers to report workplace injuries. On page 5, Mr. Brown, chair of the Rail Subcommittee stated, “The Railroad Subcommittee has concentrated on safety in the rail industry, and that includes the safety and well being of railroad employees. The railroad safety bill will address many of the issues that we are going to discuss today.” On page 6, he expressed a desire to “create a culture of safety in the railroad industry so that both the management and workers can safely handle the significant increased workload that is predicted for American railroads.” On page 7, Mr. McNerney said, “I am keenly interested in the outcome of this hearing and seeing that railroad employees have a culture of safety. It is true that every side should be aligned on the safety issue. It is in everyone’s interest that safety be maintained and that injuries be minimized.” On page 9, Committee Chair Mr. Oberstar expressed this concern:

[I]f a railroad has a ranking system and the employee builds up points over a period of time, eventually he becomes a problem employee in the mind of the railroad, and the point system, from what we have seen, from the documents—and by no means are every incident reported, but a very good sampling of incidents—do not take into account contributing factors.

This concern would explain why Congress would prohibit any discipline for following any medical treatment plan. On pages 45-47, Mr. Gregory Haskin testified about his experience working while taking narcotic pain medication to control his headaches. After two years of such work, management finally asked him to get a doctor’s note to certify his fitness for duty. His doctor would not do that. Even though his injuries originated with a workplace accident, it is still sufficient grounds for Congress to protect all workers whose medical treatment plans restrict their work on safety-sensitive equipment. On page 53, Mr. Oberstar concluded, “Well, management obviously has the responsibility to distinguish among various kinds of behavior, to identify unsafe behavior and safe behavior, and to educate employees, work with employees on safe practices.” On page 55, trial attorney Mr. Jungbauer testified that, “if railroads would just

be safe, carriers would be safe early, they could put lawyers out of business. Put me out of business. I don’t need to be here. I can find something else to do. Just be safe.” On page 75, BNSF official Mr. Schulze testified that:

We are focused on identifying those employees who present risk to themselves and others through an employee review process. As with any solid risk management program, this process allows us to appropriately focus our safety resources. This employee review is a problem-solving process that does not impact an employee’s employment record, nor is it in any way related to discipline. Coaching, training and understanding the employee’s perspective are at the heart of this process.

On page 89, the transcript records this interchange between Mr. Oberstar and Mr. Schulze:

Mr. SCHULZE. We regularly benchmark against all the Class I railroads. We believe our partnership with labor is very strong. Again, I mentioned the meetings we had last week with the safety coordinators, also some general chairmen. Next week again in Kansas City, I am meeting with the general chairman specifically to talk about safety.

Mr. OBERSTAR. Will you talk to them about the point system?

Mr. SCHULZE. I sure will, if that is something you would like.

Mr. OBERSTAR. I think you should. I think it is giving railroad safety a bad name.

On pages 70-72, Mr. Ed Hamberger, president of the Association of American Railroads, testified as follows:

For railroads, operating safely is not an option; it is an imperative. ...

The second theme running through the hearing today is that we need to establish a culture of safety through cooperative relationships with our employees and not a command and control environment.

The safety of the individual employee, his or her fellow employees on the job and, of course, the communities in which we operate, given the materials that we are forced to haul through those communities, demand adherence to strict operating safety procedures.

At the same time, there is a need for cooperation and collaboration to get everybody involved, to get the bottom of safety issues and get to the root cause of safety problems. ...

Now I don’t care how many of these cases go to trial or how many of them get settled or how many of them hire lawyers. That is not the point. The point is the adversarial relationship that is inherent in a negligence-based worker’s comp system.

With this testimony, it is no wonder that Congress moved away from an adversarial issue and created a protection for all railroad employees with medical treatment plans.

E. Respondent presents no empirical evidence that allowing employees to follow their medical treatment plans will make railways less efficient, and respondent ignores the legal imperative of advancing safety.

Respondent and the AAR present no empirical evidence to support their claim that complying with the FRSA would result in less efficient railway operations. To reach such a result, a scientist would need to determine not only the immediate costs of staffing, but also the long term consequences of coercing employees to work contrary to their medical directions. The increased costs of future medical care, and the costs of property damage and personal injury claims of the resultant accidents would need to be evaluated to determine which policy is really more “efficient.”

The FRSA’s purpose places safety first. Sometimes safety costs money. In a seminal case on the scope of protection for employees raising safety concerns, Judge Wilkey held that a miner’s notification to a foreman of possible dangers was “an essential preliminary stage in both the notification to the Secretary (A) and the institution of proceedings (B), and consequently brings the protection of the Safety Act into play.” Phillips v. Interior Bd. of Mine Operations Appeals, 500 F.2d 772, 778 (D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975). Judge Wilkey explained as follows:

Safety costs money. The temptation to minimize compliance with safety regulations and thus shave costs is always present. The miners are . . . in the best position to observe the compliance or noncompliance with safety laws. Sporadic federal inspections can never be frequent or thorough enough to insure compliance. Miners who insist on health and safety rules being followed, even at the cost of slowing down production, are not likely to be popular with mine foreman or mine top management. Only if the miners are given a realistically effective channel of communication re health and safety, and protection from reprisal after making complaints, can the Mine Safety Act be effectively enforced.

To hold that Phillips was not protected . . . would nullify not only the protection against discharge but also the fundamental purpose of the Act to compel safety in the mines. [Footnote omitted.]

In Munsey v. Federal Mine Safety and Health Review Comm’n, 595 F.2d 735, 741 (D.C. Cir. 1978), the Court reinforced the holding in Phillips. When Congress amended the Federal Mine Safety and Health Act in 1978, it explicitly approved Judge Wilkey’s interpretation of the Act. S. Rep. No. 186, 36, 95th Cong. 1st Sess. 1977, U.S. Code Cong. 2nd Ad. News, 3436; accord, Kansas Gas & Elec. Co. v. Brock 780 F.2d 1505, 1511-12 (10th Cir. 1985). Safety measures have up-front costs. This is not a justification to undermine the law, but rather a circumstance that makes the law a necessity. Congress made the decision here by enacting the FRSA. Congress removed from managers the balancing decisions about the benefits and costs of retaliating against employees who choose to follow their doctor’s orders. Managers must allow all rail employees to follow medical treatment plans. Managers can still decide if they will increase normal staffing to reduce the overtime costs that would otherwise arise from unexpected absences. If the FRSA imposes more costs than the railroad owners consider reasonable, they are free to raise this issue with their members of Congress. As one observer has noted, “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.” Henry Louis Mencken, A Book of Burlesques (3d ed. 1920).

On page 23 of respondent’s brief, PATH seems astonished that, “a railroad will never be able to discipline an employee for excessive absences due to being sick as a result of an injury sustained off-duty.”^[8] This is a great exaggeration that ignores the specific statutory provision for an employer’s affirmative defense. 49 U.S.C. § 20109(d)(2)(A)(i) and 49 U.S.C. § 42121(b)(2)(B)(ii) (AIR 21 provision for a defense that “if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”). Moreover, the FRSA now prohibits taking adverse actions against an employee for following that medical treatment plan. 49 U.S.C. § 20109(c)(2). Respondent is operating under the incorrect idea that its attendance policy is superior to the law. It is actually the law that is superior. Respondent has no right to enforce its attendance policy when doing so would result in the direct threats to public safety created by coercing employees through a threat of discharge to ignore their medical advice. It is unsafe to force employees to act counter to their medical treatment just to keep their job. The FRSA is necessary to avoid pressuring employees into working when it would be safer if they did not.

F. AAR misstates the effects of the ADA and FMLA, and fails to appreciate their inapplicability in interpreting a safety law.

AAR’s brief, pp. 15-16, claims that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, and sequence, permits employers to discharge workers for excessive absenteeism, and therefore the FRSA should, too. This argument misstates current ADA law and ignores a fundamental difference between the two laws. The ADA is an anti-discrimination law that seeks to provide equality for Americans with disabilities. The FRSA is a safety law that seeks to protect passengers, bystanders and employees from getting killed. While a candy store might fire a retail clerk who cannot come to work anymore, a railroad must refrain from adverse actions that would pressure employees to work in violation of their medical restrictions and their duty to protect the public safety.

AAR’s brief misstates ADA law. Repeated EEOC guidance confirms that medical leave is an accommodation. See, e.g., 29 C.F.R. Part 1630 App., § 1630.2(o) (“permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment”); A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, § 3.10(4) (EEOC Jan. 1992);^[9] Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (EEOC Oct. 22, 2002);^[10] The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, Question 1 and n.4 (EEOC July 6, 2000).^[11] The Supreme Court has recognized that accommodations may include more breaks for medical treatment even when an employer’s neutral policy would limit such breaks. US Airways, Inc. v. Barnett, 535 U.S. 391, 397–398 (2002). Every circuit to consider the issue recognizes that leave can be a reasonable accommodation. See, e.g., Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir.1998); Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3d Cir. 1999) (“unpaid leave supplementing regular sick and personal days might, under other facts, represent a reasonable accommodation,” but leave requested here was not reasonable); Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.1989) (decided under § 501 of the Rehabilitation Act); Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 782–783 (6th Cir. 1998) (medical leave of absence, paid or unpaid, may be reasonable accommodation); Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601-02 (7th Cir.1998) (“Consideration of the degree of excessiveness is a factual issue well suited to a jury determination.”)^[12]; Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999)^[13]; Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 967 (10th Cir. 2002); Taylor v. Rice, 451 F.3d 898, 910 (D.C. Cir. 2006). See also Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 n.5 (2d Cir. 2006) (noting that “[m]ost other circuits and the Equal Employment Opportunity Commission have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA.”). Moreover, the ADA’s accommodation obligation may require deviation from company policy. As the Supreme Court has stated:

By definition any special accommodation requires the employer to treat an employee with a disability differently, i.e., preferentially. And the fact that the difference in treatment violates an employer’s disability-neutral rule cannot by itself place the accommodation beyond the Act’s potential reach. … Were that not so, the reasonable accommodation provision could not accomplish its intended objective .... Neutral break-from-work rules [for instance] would automatically prevent the accommodation of an individual who needs additional breaks from work, perhaps to permit medical visits.

US Airways, Inc. v. Barnett, 535 U.S. 391, 397–398 (2002). Thus, many courts recognize that leave in excess of that granted by company policy, or by the FMLA, may be necessary. See, e.g., Holly v. Clairson Industries, L.L.C., 492 F.3d 1247, 1263 (11th Cir. 2007), quoting EEOC Guidance on Accommodations, supra, Question 17; Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000) (unpaid leave beyond the one-year period provided in the employer’s policies was reasonable accommodation for employees breast cancer); Parker v. Columbia Pictures Industries, 204 F.3d 326, 338 (2d Cir. 2000) (employer may be liable for firing plaintiff two weeks before the end of his short-term disability leave without investigating available accommodations); Gibson v. Lafayette Manor, Inc., 2007 WL 951473, at *7 (W.D. Pa. Mar. 27, 2007); Dutton v. Johnson County Bd. of County Com’rs, 859 F. Supp. 498 (D. Kan. 1994); Shannon v. City of Philadelphia, 1999 WL 1065210, at *6 (E.D. Pa. Nov. 23, 1999) (jury could believe that additional three-month leave after 12-week FMLA leave was a reasonable accommodation). See also Torrico v. International Business Machines Corp., 319 F. Supp. 2d 390, 408 (S.D.N.Y. 2004) (employer may have been required to give plaintiff more than the standard 30 days to find a reassignment). The EEOC guidance is to the same effect. See, e.g., EEOC Technical Assistance Manual, supra, § 3.10(4) (“An employer is not required to provide additional paid leave as an accommodation, but should consider allowing use of accrued leave, advanced leave, or leave without pay, where this will not cause an undue hardship.”); EEOC Guidance on Accommodations, supra, Question 21, Ex. A (similar); EEOC Guidance on FMLA & ADA, supra, Question 12.

Under the ADA, employers cannot hold the use of accommodations against the employee, such as by penalizing the employee or downgrading evaluations because of leave granted as an accommodation. See, e.g., Questions and Answers: Promoting Employment of Individuals with Disabilities in the Federal Workforce, Question 33 and Ex. 41 (EEOC);^[14] The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities, Ex. 11 (EEOC) (temporary postponement of PIP to process accommodation request ensures that employee will have equal opportunity to improve performance); EEOC Accommodation Guidance, supra, Question 19, Ex. A (employer violates law by giving employee poor performance review based on disability-related absences); Reasonable Accommodations for Attorneys with Disabilities, Example 12 (EEOC May 23, 2006), http://www.eeoc.gov/facts/accommodations-attorneys.html (employer should not give poor performance review based on disability-related absences). See also Myles v. University of Pennsylvania Health System, 2011 WL 6150638, at *8 (E.D. Pa. Dec. 12, 2011) (“[T]here is a question of fact as to whether some of the time for which Plaintiff was disciplined—and which contributed to her termination—should have been classified as protected leave.”).

Similarly, while the Family and Medical Leave Act (FMLA) provides a minimum level of protection for parents working in any industry, it does not create any ceiling of protection that could interfere with safety.^[15] The Department of Labor regulation at 29 C.F.R. § 825.702(a), explains as follows:

The purpose of the FMLA is to make leave available to eligible employees and employers within its coverage, and not to limit already existing rights and protection.” S. Rep. No. 103–3, at 38 (1993). An employer must therefore provide leave under whichever statutory provision provides the greater rights to employees.

There is nothing incongruous with the FMLA in applying the plain language of the FRSA to protect employees when they comply with their medical treatment plans.

G. Arbitral decisions are not entitled to deference in interpreting the scope of protection under the FRSA.

The AAR brief, pp. 21-23, argues for deference to arbitral decisions that have upheld employer discipline policies for absenteeism. The cited decisions were issued before the 2008 amendment to the FRSA, and none specifically consider the issue here of whether the FRSA prohibits disciplining railroad employees for following medical treatment plans. Even if the decisions did consider the FRSA, Congress placed responsibility for enforcing the FRSA here in this Department, and not with the arbitrators. The Supreme Court has stated that:

While courts should defer to an arbitral decision where the employee’s claim is based on rights arising out of the collective-bargaining agreement, different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.

Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 737, 101 S.Ct. 1437, 1443, 67 L.Ed.2d 641 (1981); accord McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); Mercier v. Union Pacific R.R. Co., ARB Nos. 09-101, -121, ALJ Nos. 2008-FRS-3, 4 (ARB Sept. 29, 2011), pp. 7-8. If both the company and the union are against spending what they consider to be too much money on a safety concern, then the employee who raises that safety concern will appreciate that the FRSA provides an avenue of protection independent of labor-management grievance and arbitration. During the October 25, 2007, House Committee hearing, Mr. Boardman stated on page 9 that, “Some of those kinds of systems that railroads put together—and I think they will freely admit—have unintended consequences of difficulty for those employees in terms of how they interpret and what happens to those employees as peer pressures and other kinds of concerns raise their head.” The institutional interests at play in labor-management grievance and arbitration make that process inherently unreliable to protect the public policies behind whistleblower laws. In Mercier, this Board quoted from Alexander v. Gardner-Denver Co., 415 U.S. at 52-53, as follows:

His [the arbitrator’s] source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the “industrial common law of the shop” and various needs and desires of the parties. The arbitrator, however, has no general authority to invoke public laws . . . . [Emphasis added in Mercier.]

Accordingly, it is appropriate that this Board will defer to arbitral awards only where the arbitration “has given full consideration to the parties’ claims and rights under the [Act], and if it affords all of the procedural protections provided in hearings before ALJs.” Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999). The responsibility for determining this Department’s policy on enforcement of the FRSA remains, however, with this Board.

2. CAUSATION ISSUES, INCLUDING EMPLOYER KNOWLEDGE, ARE APPROPRIATELY DECIDED AT THE ORGANIZATIONAL LEVEL AND CAN BE DETERMINED BY INFERENCES.

On Point II, pages 20-22, PATH relies on antiquated notions of knowledge and causation. PATH argues based on the unstated and wrong assumption that analysis of a retaliation claim requires designating a single person as the “decision-maker” and then looking for proof that this “decision-maker” had knowledge of the protected activity. These notions were thoroughly rejected in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011).

This Board considered Staub last year in Bobreski v. J. Givoo Consultants, Inc., ARB No. 09-057, ALJ No. 2008-ERA-3 (ARB June 24, 2011), Order of Remand. The ARB explained Staub as follows:

A recent Supreme Court case, Staub v. Proctor, provides a good example of cases where improper influence occurs early in the decision-making chain and then unlawfully influences an allegedly neutral and unknowing final decision-maker. In Staub, the Court held that an employer may be held liable for the discriminatory actions of a lower level supervisor who influences the decision to take adverse action by a higher level supervisor who lacks discriminatory animus.

In Staub, Justice Scalia wrote as follows for the majority:

When a decision to fire is made with no unlawful animus on the part of the firing agent, but partly on the basis of a report prompted (unbeknownst to that agent) by discrimination, discrimination might perhaps be called a “factor” or a “causal factor” in the decision; but it seems to us a considerable stretch to call it “a motivating factor.”

131 S. Ct. at 1192.

Thus, just as the ALJ below held, it matters not whether Bulayev may have lacked knowledge of Bala’s protected activity when the disciplinary proceedings leading to the adverse action were initiated on account of Bala’s decision to follow his doctor’s orders. Justice Scalia continued explaining that,

it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm. Proximate cause requires only “some direct relation between the injury asserted and the injurious conduct alleged,” and excludes only those “link[s] that are too remote, purely contingent, or indirect.” Hemi Group, LLC v. City of New York, 559 U.S. 1, ––––, 130 S.Ct. 983, 989, 175 L.Ed.2d 943 (2010) (internal quotation marks omitted). We do not think that the ultimate decisionmaker’s exercise of judgment automatically renders the link to the supervisor’s bias “remote” or “purely contingent.” The decisionmaker’s exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes. See Sosa v. Alvarez–Machain, 542 U.S. 692, 704, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). [Footnote omitted.]

This reasoning emphasizes that it is unnecessary to prove who the final decision-maker was if one can show that the protected activity was a contributing factor in the employer’s decision to impose the adverse action. See also, Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir. 2006)) (explaining that inquiry is whether “the employer had knowledge of the employee’s protected activity” (quoting Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir. 1985)); Papelino v. Albany College of Pharmacy of Union University, 633 F.3d 81, 92 (2d Cir. 2011)(“Neither this nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity.” Quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir.2000)). A decision-maker’s knowledge can be inferred from employer knowledge. Jones v. Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009). It is, after all, the employer that is the party, not the individual manager.

When applied on an employer-wide basis, circumstantial evidence is equal to direct evidence in its ability to persuade the fact finder that unlawful motives were afoot. This is what Justice Thomas meant when he said, “Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (citation omitted). The ultimate issue is only whether the law has been violated. U.S.P.S. v. Aikens, 460 U.S. 711, 713-14 (1983); St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

3. FRSA BARS ADVERSE ACTIONS ON ACCOUNT OF PROTECTED ACTIVITY UPON ITS EFFECTIVE DATE, EVEN FOR ACTIONS PLANNED OR INITIATED PRIOR TO ITS EFFECTIVE DATE.

Respondent’s hostility to the mandates of the FRSA are evident in its final argument. Respondent seeks to immunize its adverse actions from liability if it can show that one of its agents took some action in furtherance of that adverse action before the effective date of an amendment to the FRSA. The absurdity of this argument becomes evident when the same reasoning is applied to a race discrimination claim under Title VII. If an employer were to tell an employee in 1963 that, “I plan to fire you in 1966 because you are black,” it would be obvious that the 1966 discharge would be actionable under the Civil Rights Act of 1964. By 1965, Title VII came into effect and the law required the employer to abandon the discharge that is now unlawful. Indeed, the Supreme Court has considered an employer’s delay in changing its policies to comply with the law as evidence of unlawful discrimination. Teamsters v. United States, 431 U.S. 324, 337 (1977). Indeed, past discrimination can be admitted as background evidence to show present-day motives to discriminate, National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), even if that prior discrimination occurred before the effective date of Title VII. Hazelwood School District v. United States, 433 U.S. 299, 309, n. 15, 97 S.Ct. 2736, 2742, n. 15, 53 L.Ed.2d 768 (1977) (“Proof that an employer engaged in racial discrimination prior to the effective date of Title VII might in some circumstances support the inference that such discrimination continued, particularly where relevant aspects of the decisionmaking process had undergone little change.” [Emphasis added]). By claiming that it should be immune from liability for a decision initiated before FRSA’s effective date, respondent is conceding that its conduct after the effective date is a continuation of its policies before the amendment’s effective date. Respondent is conceding that “relevant aspects of the decisionmaking process had undergone little change.” (Quoting Hazelwood). To the extent that PATH is continuing its past practices that discriminated against those employees who are “following orders or a treatment plan of a treating physician” after the amendment’s effective date, PATH is liable for violating FRSA.

Additionally, the original 2007 language of the FRSA is sufficient to protect employees when they raise a safety concern to their supervisor Accord, Phillips v. Interior Bd. of Mine Operations Appeals, 500 F.2d 772, 778 (D.C. Cir. 1974), cert. denied, 420 U.S. 938 (1975). That it would be unsafe to work in violation of a medical treatment plan is such a concern.

4. CONCLUSION

This case presents the Board with an opportunity to set policy on the purpose and scope of protection for railway workers. Congress passed the FRSA with an appreciation of the legacy this Department has established in protecting whistleblowers. It is appropriate for this Board to apply the traditional broad scope of protection to accomplish the natural goal of protecting both workers and the public.

Respectfully submitted by:

___________________________________

Stephen M. Kohn, sk@whistleblowers.org

Richard R. Renner, rr@whistleblowers.org

Attorneys for National Whistleblowers Center

National Whistleblowers Legal Defense and Education Fund

3233 P St., N.W.

Washington, DC 20007

(202) 342-6980

(202) 342-6984 (FAX)

CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing Brief of Amicus Curiae National Whistleblowers Center was served by regular mail, unless email is indicated, on the following persons of the following addresses on this 8th day of June, 2012:

James M Begley and Kathleen Collins^[16]

PATH

225 Park Ave. South, 13th Floor

New York, NY 10003

Charlie Goetsch

43 Trumbull Street

New Haven, CT 06510

charlie@trainlaw.com

Administrative Review Board

200 Constitution Ave., NW, # S-5220

Washington, DC 20210

Directorate of Enforcement Programs

U.S. Department of Labor/OSHA

200 Constitution Avenue, NW

Room N-3603, FPB

Washington, DC 20210

Megan E. Guenther

Office of Associate Solicitor

U.S. Department of Labor/SOL

200 Constitution Avenue, NW

Room N-2716, FPB

Washington, DC 20210

Guenther.Megan@dol.gov

Louis P. Warchot and Daniel Saffire

Association of American Railroads

425 3rd St. SW

Washington, DC 200024

Ronald M. Johnson and Donald J. Munro

Jones Day

51 Louisiana Ave NW

Washington, DC 20001

rmjohnson@JonesDay.com

__________________________

Richard R. Renner

Attorney for Amicus