NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN THORSTENSON,

Petitioner,

v.
U.S. DEPARTMENT OF LABOR,

Respondent,

BNSF RAILWAY COMPANY,

Intervenor. No. 22

- 70020

LABR ARB No. 2018

- 0060

MEMORANDUM *

On Petition for Review of an Order of the

Department of Labor

Argued and Submitted February 16, 2023 San Francisco, California

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

In this comeback case
, Petitioner Stephen Thorstenson appeals a second

determination by the Department of Labor 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. 

# FILED

MAR 15 2023

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

that BNSF Railway Company (“BNSF”) did not retaliate against Thorstenson 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 grant the petition and

remand for the limited purpose of determining compensatory dam ages

. In the initial appeal, we reversed and remanded the ARB’s affirmance of the

administrative law judge’s (“ALJ”) decision , explaining that the ARB had

improperly reject ed the 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

. ” Thorstenson v. U.S. Dep’t of Labor

(“ Thorstenson I

”), 831 F. App’x 842, 843 (9th Cir. 2020) . We held that “ 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 injur y.” Id. On remand, the ARB took issue with our analysis of the

record, determined that our dispos ition did not implicate BNSF’s affirmative

defense , and affirmed once more the ALJ’s finding that BNSF had proven its

affirmative defense . Thorstenson now petitions for review.

The ARB erred in its interpretation of our prior decision, which foreclosed

its determination on remand that BNSF established its affirmative defense by clear

and convincing evidence

. See id

. ( explaining that “ BNSF ’ s enforcement of its

timely injury reporting policy was so unreasonable and unduly burdensome that it3

constituted retaliation when enforced on these facts ” and “b ecause it was virtually

impossible for Thorstenson to comply with the injury reporting rule, h e was
effectively disciplined for the protected activity of reporting a workplace injury”)

. In the alternative, we hold that substantial evidence does not support the ALJ’s

conclusion that BNSF proved by clear and convincing evidence that it would have

di sciplined Thorstenson in the absence of his protected activity

. See DeFrancesco

v. Union R.R. Co.
, A RB No. 13

- 057, 2015 WL 5781070, at *5 ( ARB Sept. 30,

2015 ) (explaining that “‘[c]l ear’ evidence means the employer has presented an

unambiguous explanation for the adverse action(s) in question ,” and

“ ‘ [c] onvincing’ evidence has been defined as evidence demonstrating that a

proposed fact is ‘highly probable ’”).

I t is clear from the administrative record that Thorstenson i s entitled to

damages fo r his termination. The ALJ found that BNSF terminated Thorstenson

under its progressive discipline policy , relying on the earlier Level S for the late

reported injury. We th erefore conclude that a remand for further proceedings on

the merits would serve no useful purpose. We grant th is petition, reverse the

decision of the ARB
, and remand with instructions to remand to the ALJ for the

limited purpose of determining compensatory damages based on the existing

record, to be supplemented only as to post

- hearing damages

.
PETITION GRANTED and REMANDED with instructions

.