     Case: 19-60524      Document: 00515397248         Page: 1    Date Filed: 04/28/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                      No. 19-60524                         April 28, 2020
                                                                          Lyle W. Cayce
DANIEL LEIVA,                                                                  Clerk


              Petitioner

v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT
OF LABOR,

              Respondent




           On Petition for Review of the Administrative Review Board
                   of the United States Department of Labor
                               Agency No. 18-0051


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner Daniel Leiva was a locomotive engineer for Union Pacific
Railroad Company.         In July 2012, Leiva had an altercation with a train
conductor, after which he reported to management that the conductor had
threatened and physically intimidated him. Union Pacific suspended both
Leiva and the conductor and charged them with violating workplace policy.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 19-60524
Leiva then filed a complaint with the Occupational Safety and Health
Administration (“OSHA”), alleging that he was suspended in retaliation for
formally reporting the incident.     An Administrative Law Judge (“ALJ”)
concluded that Union Pacific had violated the Federal Railroad Safety Act
(“FRSA”).   The Administrative Review Board (“ARB”) affirmed the ALJ’s
decision and remanded for consideration of punitive damages.
      In July 2015, the parties settled Leiva’s claim. Among other things, the
settlement required Union Pacific to expunge all references to the July 2012
incident from its records. Union Pacific also agreed that it would not rely on
the July 2012 incident in any future disciplinary or employment decisions. The
ALJ approved the settlement agreement and thus dismissed Leiva’s complaint.
      In the meantime, Union Pacific terminated Leiva in 2014 for committing
two safety violations, including running a train through a stop signal. Leiva’s
union appealed his termination to another administrative body. As part of that
proceeding, in August 2016, a Union Pacific employee pulled Leiva’s
disciplinary history from Union Pacific’s records and included it in a
submission to the administrative body.        Despite the parties’ settlement
agreement, Leiva’s July 2012 incident appeared in the submission as one of
the fifteen violations in Leiva’s disciplinary record. Over a year later, the
administrative body affirmed Leiva’s termination.
      Leiva filed another FRSA complaint, alleging that Union Pacific had
violated the FRSA by failing to expunge the July 2012 incident from its records
and by informing another administrative body of the incident.           An ALJ
concluded that Union Pacific’s failure to expunge the incident was a
continuation of Union Pacific’s retaliation against Leiva and thus held in his
favor. But the ARB vacated the ALJ’s decision, holding that Union Pacific’s
failure to expunge the information did not constitute a “new case” under the
FRSA. At most, the ARB concluded, Union Pacific’s failure to expunge violated
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                                 No. 19-60524
the parties’ settlement agreement, which was to be enforced in federal district
court. Leiva petitioned us for review.
      We will sustain the ARB’s decision unless it was “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). We review the ARB’s legal conclusions de novo and its factual
conclusions under a “substantial evidence standard,” meaning we will defer to
them if, considering the whole record, “a reasonable person could have reached
the same conclusion[s] as the ARB.” Allen v. ARB, 514 F.3d 468, 476 (5th Cir.
2008).
      To succeed on an FRSA claim, the plaintiff must establish that (1) he
“engaged in protected activity,” (2) the employer knew that he did so, (3) he
“suffered an unfavorable personnel action,” and (4) his protected activity was
a contributing factor in the unfavorable action. Id. at 475–76.
      “A contributing factor is ‘any factor, which alone or in combination with
other factors, tends to affect in any way the outcome of the decision.’” Id. at
476 n.3 (quoting Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB Case No.
04–149, 2006 WL 3246904, at *13 (ARB May 31, 2006)). We require plaintiffs
to satisfy this prong by a preponderance of the evidence. Id. at 475 n.1.
      In arguing that his July 2012 activity was a contributing factor in the
events of August 2016, Leiva relies on a “cat’s paw” theory of causation. To
succeed under a cat’s paw theory, “a plaintiff must establish that the person
with a retaliatory motive somehow influenced the decisionmaker to take the
retaliatory action. Put another way, a plaintiff must show that the person with
retaliatory animus used the decisionmaker to bring about the intended
retaliatory action.” Zamora v. City Of Houston, 798 F.3d 326, 331 (5th Cir.
2015); see also Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011).
      Leiva argues that Jennifer Powell, Union Pacific’s director of labor
relations, submitted the July 2012 incident to the administrative body in 2016
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                                No. 19-60524
“because in 2012, those with the requisite knowledge of Mr. Leiva’s 2012
protected activity (culpable state of mind) unlawfully put the false allegation
in Mr. Leiva’s personnel file.” But Leiva’s argument stretches the cat’s paw
theory too far. Leiva has not pointed to evidence that anyone “with retaliatory
animus used [Powell] to bring about [an] intended retaliatory action.” Zamora,
798 F.3d at 331.     Indeed, Leiva has identified no evidence that anyone
associated with the July 2012 incident or subsequent settlement was at all
involved in the events of August 2016. We reject the argument that the initial
inclusion of the July 2012 incident in Leiva’s file somehow influenced Powell
to submit the entire file—which included the July 2012 incident along with
several others—to the administrative body over four years later. Leiva has not
shown by a preponderance of the evidence that his July 2012 protected activity
was a “contributing factor” in Powell’s decision to submit his file to the
administrative body in 2016.
      The petition is DENIED.




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