IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-60426

Summary Calendar

DESMOND A. HUNTER, 

 Petitioner

v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT 

OF LABOR, 

 Respondent

Petition for Review of the Final Decision and Order of the

United States Department of Labor Administrative Review Board

LABR No. 18-0044

LABR No. 18-0045

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Desmond Hunter petitions for review of the decision of the Department 

of Labor’s Administrative Review Board (ARB), which affirmed the 

Department of Labor’s Administrative Law Judge (ALJ), in this Federal 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 27, 2020

Lyle W. Cayce

Clerk

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Railroad Safety Act (FRSA) retaliatory termination action. We DENY the 

petition for review and AFFIRM the ARB’s decision.

Hunter worked for CSX Transportation, Inc. (“CSX”) since 1994. Three 

years into his employment, Hunter became a certified locomotive engineer. As 

an engineer, Hunter undertook engine inspections to look for defects and report 

possible safety problems. In the afternoon of July 9, 2016, Hunter identified a 

safety concern—a wheel slip fault—and reported the issue to his superior. 

Hunter continued working until roughly 3:00 A.M. on June 10, 2016, at which 

point he left work prior to the end of his shift. CSX initiated disciplinary 

proceedings against Hunter for leaving work before being relieved by a 

supervisor. CSX terminated Hunter on September 9, 2016.

A month later, Hunter filed a complaint under the FRSA to the 

Occupational Safety and Health Administration (OSHA), alleging that he was 

terminated in retaliation for reporting the wheel slip. OSHA dismissed 

Hunter’s complaint. Hunter then filed a complaint with the Department of 

Labor. The ALJ found that Hunter did engage in protected activity under the 

FRSA by reporting the wheel slip, but that he failed to show his protected 

activity was a contributing factor in CSX’s decision to terminate him. 

Alternatively, the ALJ found that CSX demonstrated it would have taken the 

same adverse action in the absence of his protected activity. The ARB affirmed 

the ALJ’s decision, and Hunter timely filed a petition for review.

We review an administrative agency’s findings of fact for substantial 

evidence. Willy v. Admin. Review Bd., 423 F.3d 483, 490 (5th Cir. 2005). This 

standard is “highly deferential,” Mem’l Hermann Hosp. v. Sebelius, 728 F.3d 

400, 405 (5th Cir. 2013) (quoting Bd. of Mississippi Levee Comm’rs v. U.S. 

E.P.A., 674 F.3d 409, 417 (5th Cir. 2012)), and requires only “that which is 

relevant and sufficient for a reasonable mind to accept as adequate to support 

a conclusion,” id. (quoting Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 

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1993)). “We are especially reluctant to disturb an agency determination where

. . . the Board upholds the findings of an administrative law judge who 

conducted live hearings.” Ameristar Airways, Inc. v. Admin. Review Bd., U.S. 

Dep’t of Labor, 650 F.3d 562, 566 (5th Cir. 2011).

The FRSA promotes safety in railroad operations in efforts to reduce 

railroad-related accidents. 49 U.S.C.A. § 20101. To help achieve these goals, it 

protects employees who “report[], in good faith, a hazardous safety or security 

condition” from an employer’s retaliatory action. Id. § 20109(b)(1)(A). A federal 

whistleblower statute, the FRSA has adopted the burden-shifting framework 

set forth in the Wendell H. Ford Aviation Investment and Reform Act for the 

21st Century. Id. § 42121(b). To make a claim for wrongful retaliation, an

employee must show by the preponderance of the evidence that (1) he engaged 

in a protected activity, (2) the employer knew that he engaged in said activity, 

(3) he suffered an adverse personnel action, and (4) the protected activity was 

a contributing factor in the adverse action. Allen v. Admin. Review Bd., 514 

F.3d 468, 475–76 (5th Cir. 2008). The burden then shifts to the employer to 

show by clear and convincing evidence that it would have taken that adverse 

action even in the absence of the employee’s behavior. § 42121(b)(2)(B)(iii).

Hunter contends that the ARB abused its discretion in finding (1) that

his protected activity did not contribute to CSX’s decision to terminate him and 

(2) that CSX would have terminated him in the absence of his protected 

activity. The ALJ conducted a lengthy, live two-day hearing. During these 

proceedings, Hunter’s supervisory employees all testified that leaving work 

without permission was a brand of insubordination and a serious offense 

subject to discharge. Additionally, the ALJ could not point to any evidence that 

showed the trainmaster’s knowledge of Hudson’s protected activity could be 

imputed to the relevant decisionmakers who terminated Hudson. After 

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reviewing the record, we conclude that the ALJ’s findings of fact were based on 

substantial evidence.

PETITION DENIED.

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