NOT FOR PUBLICATION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. 20-70211 

MEMORANDUM*

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.

FILED

DEC 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 20-70211 

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 
3 20-70211 

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., 914 F.3d 1189, 1195 (9th Cir. 2019) (quoting 

Rookaird v. BNSF Ry. Co., 908 F.3d 451, 461 (9th Cir. 2018); cf. CSX Transp., 

Inc. v. McBride, 564 U.S. 685, 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
4 20-70211 

consistent with this disposition. 

REVERSED and REMANDED.