          United States Court of Appeals
                     For the First Circuit


No. 16-2271

                     PAN AM RAILWAYS, INC.,

                          Petitioner,

                               v.

               UNITED STATES DEPARTMENT OF LABOR,

                          Respondent,

                          JASON RAYE,

                          Intervenor.


   PETITION FOR REVIEW OF A FINAL ORDER OF THE ADMINISTRATIVE
      REVIEW BOARD OF THE UNITED STATES DEPARTMENT OF LABOR


                             Before

                      Howard, Chief Judge,
                Selya and Lynch, Circuit Judges.


     Andrew J. Rolfes, with whom Robert S. Hawkins and Buchanan
Ingersoll & Rooney, P.C. were on brief, for petitioner.
     Dean A. Romhilt, Senior Attorney, Office of the Solicitor,
U.S. Department of Labor, with whom Nicholas C. Geale, Acting
Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, and
Megan E. Guenther, Counsel for Whistleblower Programs, were on
brief, for respondent.
     Stephen J. Fitzgerald, with whom Garrison, Levin-Epstein,
Fitzgerald & Pirrotti, P.C. was on brief, for intervenor.
April 21, 2017
          LYNCH, Circuit Judge.      This is a petition for review, in

a Federal Railroad Safety Act ("FRSA") whistleblower retaliation

action, of an agency decision resulting in the statutory maximum

award of punitive damages against a railroad. The railroad brought

charges of dishonesty and insubordination, as well as threats of

dismissal, against an injured employee who had filed a complaint

under   the   FRSA   with   the    Occupational    Safety   and   Health

Administration ("OSHA"), alleging that he lied in that complaint

about precisely how his on-the-job accident happened, based on a

purported discrepancy between the complaint and his prior story.

An Administrative Law Judge ("ALJ") later found that those charges

of   dishonesty   constituted     unlawful    retaliation   against   the

employee for filing the OSHA complaint.

          We agree with the Department of Labor's Administrative

Review Board ("ARB") that substantial evidence supported the ALJ's

rejection of the railroad's affirmative defense and the ALJ's

decision to impose punitive damages.         The amount of the punitive

damages award presents a closer question.         The award seems high,

and we might ourselves have chosen a different sum.         In the end,

however, we conclude that the ALJ's decision to award punitive

damages of $250,000, to punish and deter what he perceived to be

a culture of intimidating employees and discouraging them from

engaging in protected activity, was within the realm of his

discretion.   We deny the petition for review.


                                  - 3 -
                                      I.

A.     The FRSA and Raye's Injury

               This story begins with an on-the-job accident in which

Jason Raye, a train conductor for a subsidiary of petitioner Pan

Am Railways, Inc. ("Pan Am"), injured his ankle and missed work as

a    result.      The   FRSA's   employee    protection     provision    forbids

railroad carriers from retaliating against employees who engage in

protected activity, such as reporting a workplace injury or filing

an OSHA complaint.       See 49 U.S.C. § 20109.       Importantly, this case

concerns       FRSA   retaliation   against    Raye   for    filing     an   OSHA

complaint.

               A few weeks before his accident, on October 5, 2011,

Raye noticed a pile of old railroad ties next to a track in a

railyard in Waterville, Maine.          He thought the pile a tripping

hazard and reported it to his manager, Dwynn Williams.                  The pile

was not removed before Raye's accident.1

               On October 24, 2011, during his shift, Raye stepped off

a train onto that same pile of railroad ties and badly sprained

his ankle.       We recount later his testimony about the accident.

Raye called his dispatcher for a ride to the hospital, where Raye




       1   Raye later testified in the ALJ hearing that Pan Am had
not disciplined anyone, as far as he knew, for failing to remove
the dangerous pile from the railyard in the weeks between Raye's
initial report and his accident.     Pan Am has not refuted that
testimony.


                                     - 4 -
was diagnosed with the sprain.         Williams visited Raye at the

hospital, and Raye explained that he had "rolled [his] ankle on

the same ties that [he had] turned in three weeks ago."                   In

response,   Williams   said   that   Raye   should   "probably   expect   a

[disciplinary] hearing" in the wake of the injury.

            Raye had two scheduled days off after his injury, but he

needed three days to recover, so he missed a day of work.            That

missed day required Pan Am to report Raye's injury and the injury's

cause to the Federal Railroad Administration ("FRA").              See 49

C.F.R. § 225.19(d)(3)(i).      When Raye returned to work on October

28, 2011, his superintendent, Jim Quinn, learned about the injury

and the missed day. Quinn told Raye that the missed day "change[d]

everything" and that "[t]here w[ould] probably be a hearing . . .

for that FRA reportable injury, for missing a day."

B.   First Pan Am Disciplinary Proceeding Brought Against Raye for
     His Alleged Safety Violation

            On November 1, 2011, Raye received a Notice of Hearing

from Pan Am, signed by Williams.      The notice alleged that Raye had

violated Pan Am Safety Rule P-76, which provides that "[b]efore

getting on and off [a train], [employees must] carefully observe

ground condition and be assured of firm footing."        At the November

11, 2011 hearing, Raye testified that he had stepped down from the

train safely and cautiously, but had nonetheless lost his balance

on the unstable pile of ties.         Raye also testified that after




                                 - 5 -
rolling his ankle he had "caught [him]self" and sat down on the

ground rather than falling over.

             On    November   28,   2011,   John   Schultz,   Pan   Am's   Vice

President of Transportation, sent Raye a letter stating that Raye

had failed to assure himself of firm footing before stepping onto

the pile of ties.        The letter itself "serve[d] as discipline in

the form of a formal [r]eprimand and . . . a copy of it w[as] . . .

placed in [Raye's] personal file."

C.   Raye's OSHA Complaint, Second Pan Am Disciplinary Proceeding
     for Raye's Alleged Dishonesty, and Raye's Amended OSHA
     Complaint Charging Retaliation

             Raye retained a lawyer, who drafted and submitted a typed

complaint to OSHA on December 6, 2011, without Raye first reviewing

or signing it.       This initial complaint accused Pan Am of violating

the FRSA by retaliating against Raye, both for reporting a safety

hazard and for reporting his injury.          See 49 U.S.C. § 20109(a)(4),

(b)(1)(A).        The typed OSHA complaint was consistent with Raye's

testimony at the earlier Pan Am disciplinary hearing, with one

exception: the complaint stated that Raye "fell hard to the ground"

at the time of the injury, rather than that he sat down on the

ground.

             On December 12, 2011, OSHA sent Pan Am a copy of Raye's

complaint and sought Pan Am's response to the allegations.             At the

request of Pan Am's legal and human resources departments, Schultz

reviewed the OSHA complaint -- which he reasonably believed had


                                     - 6 -
been drafted by Raye himself -- and thought there was a "major

discrepancy" between the complaint's statement about Raye falling

hard to the ground and Raye's prior hearing testimony that he had

caught himself and sat down on the ground after stumbling.                   That

discrepancy,    Schultz    said    later,    caused   Pan   Am   to    make     a

"collective determination" to bring a second set of disciplinary

charges against Raye.      Pan Am made that determination without any

effort to first ask Raye about the purported inconsistency.

          On December 23, 2011, Pan Am sent Raye a second Notice

of Hearing, which directed him to appear at a second disciplinary

proceeding,    levied    several   serious    charges   against       him,   and

threatened him with termination.            OSHA and the ALJ would later

find that retaliation against Raye for filing the initial OSHA

complaint was a contributing factor in Pan Am's decision to bring

these new charges.      The notice alleged that Raye had "[p]rovid[ed]

false statements to [Pan Am] and/or a government agency, in

connection with [his] description as to how the incident . . . on

October 24, 2011, took place."         That purported dishonesty, the

notice further alleged, violated two Pan Am Safety Rules: (1) Rule

PGR-C, which threatens employees with dismissal if they commit

"act[s] of insubordination, hostility, or willful disregard of

[Pan Am's] interests" or if they "conduct themselves in such a

manner that [Pan Am] will . . . be subject to criticism or loss of

good will"; and (2) Rule PGR-L, which threatens employees with


                                    - 7 -
dismissal if they are "dishonest, immoral, vicious, quarrelsome,

and uncivil in deportment or . . . careless of the safety [of]

themselves or of others."        The notice did not specify which of

Raye's statements about the accident were alleged to have been

"dishonest" or "insubordinat[e]."

             Raye's lawyer, in response, amended the OSHA complaint

on December 27, 2011, to include an allegation that the second set

of charges amounted to Pan Am retaliating against Raye for having

filed the original OSHA complaint.           See 49 U.S.C. § 20109(a)(3).

He enclosed the new Notice of Hearing and asserted to OSHA that

Pan    Am   was    "clearly   bringing   these       additional   charges    in

retaliation for . . . the original [OSHA] complaint."

             The second Pan Am disciplinary hearing, addressing the

new charges of dishonesty and insubordination, took place on

January 4, 2012.       Raye explained that his lawyer had written the

statement in the OSHA complaint, that he himself had not been aware

of    the   statement's   contents   before    the    lawyer   submitted    the

complaint to OSHA, that the discrepant portion of the statement

was wrong, and that his testimony at the first hearing had been

correct.      The facts in the OSHA complaint, he confirmed, were

otherwise     accurate    and   consistent     with     his    prior   hearing

testimony.        Finally, he testified that no one from Pan Am had

approached him informally at any time before issuing the second




                                     - 8 -
Notice of Hearing to discuss the purported "major discrepancy"

that Schultz had identified.2

          In a letter dated January 13, 2012, Pan Am informed Raye

that "the charges [of rule violations] ha[d] not been sustained"

and that no disciplinary action would be taken as a result of the

second hearing.

          On August 14, 2013, OSHA rejected Raye's claim that Pan

Am had retaliated against him for reporting his injury or for

reporting a safety hazard, finding that Pan Am had "provided clear

and convincing evidence that it would have reprimanded [Raye] if

it had observed the incident, even if no injury resulted."

          OSHA    agreed   with   Raye,   however,   that   Pan   Am   had

unlawfully retaliated against him by bringing the second set of

charges after he filed the original OSHA complaint.          Pan Am had

"not provided clear and convincing evidence," OSHA found, "that it

would have taken the same adverse action even if [Raye] had not

engaged in protected activity."      OSHA further noted that "once a


     2    The ALJ later found, despite Pan Am's claim that its
officials could not have spoken informally with Raye because of
the collective bargaining agreement with Raye's union, that
nothing in that agreement prohibited an informal conversation.
This was one of several instances in which the ALJ found Schultz's
testimony before him to be less than truthful. Further, the ALJ
evidently accepted Raye's unrebutted testimony that on another
occasion Quinn, the superintendent, had called him in for an
informal conversation to learn more about the circumstances of a
workplace accident.   On that occasion, Pan Am did not formally
charge Raye with a safety violation until after the informal
conversation.


                                  - 9 -
FRSA allegation has been made to OSHA, it is OSHA's responsibility,

not [an employer's], to establish the truth of assertions made by

both parties."

D.   ALJ and ARB Proceedings

          On September 12, 2013, Pan Am objected to OSHA's finding

of retaliation3 and requested a de novo hearing before an ALJ.

That hearing took place on February 24, 2014.       The ALJ heard live

testimony from Raye and from Schultz.       Pan Am sought to introduce

several   exhibits    documenting    past    instances   of    employee

discipline,   which   it   characterized     as   comparator   evidence

supporting its affirmative defense that it would have taken the

same action even absent Raye's protected activity.             The ALJ

admitted the documents about which Schultz could testify from

personal experience, but excluded others for which Pan Am could

provide no explanation or context.

          The ALJ issued his Decision and Order on June 25, 2014.

First, he found that Raye's protected activity -- filing an OSHA

complaint -- had been a contributing factor in Pan Am's decision

to charge Raye with dishonesty and to hold a second hearing. Next,

he rejected Pan Am's affirmative defense, holding that Pan Am had

not "prove[d] by clear and convincing evidence that it would have




     3    OSHA's finding that the first Pan Am hearing and
subsequent reprimand did not constitute unlawful retaliation
against Raye was not appealed.


                               - 10 -
taken the same action absent [Raye's] protected activity."               He

dismissed as inadequate Pan Am's proffered comparator evidence

because those instances of investigation and discipline were not

fairly comparable to Raye's circumstances.

             Finally, the ALJ turned to what relief was "necessary to

make [Raye] whole," 49 U.S.C. § 20109(e)(1), and awarded Raye

$10,000 in damages for emotional distress.                 He also imposed

$250,000 in punitive damages -- the maximum amount that the FRSA

allows, see id. § 20109(e)(3) -- because Pan Am had "utilized the

[disciplinary] process to intimidate and discourage protected

activity, not only by Raye, but [by] other employees of Pan Am as

well."

             Pan Am appealed the ALJ's decision to the ARB, which

affirmed.     The ARB held that substantial evidence supported the

ALJ's determination that Pan Am had failed to prove its affirmative

defense by clear and convincing evidence.          It also found no abuse

of discretion in the award of $250,000.

                                    II.

             The scope of our review of Pan Am's petition for review

of the ARB's final order is limited by the Administrative Procedure

Act.     See 49 U.S.C. § 20109(d)(4) (cross-referencing 5 U.S.C.

§§ 701–706); R & B Transp., LLC v. U.S. Dep't of Labor, Admin.

Review Bd., 618 F.3d 37, 44 (1st Cir. 2010).         Accordingly, we must

deny   the   petition   "unless   [the    ARB's]   legal   conclusions   are


                                  - 11 -
arbitrary, capricious, or otherwise not in accordance with law, or

its factual conclusions are unsupported by substantial evidence."

R & B Transp., 618 F.3d at 44 (quoting Clean Harbors Envtl. Servs.,

Inc. v. Herman, 146 F.3d 12, 19 (1st Cir. 1998)).   The substantial

evidence standard is a hurdle "notoriously difficult to overcome

on appellate review."   Vieques Air Link, Inc. v. U.S. Dep't of

Labor, 437 F.3d 102, 104 (1st Cir. 2006) (per curiam) (quoting

Bath Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st

Cir. 2003)).4

          Pan Am's petition raises two issues.       First, Pan Am

argues that it established in the ALJ proceeding, by clear and

convincing evidence, its affirmative defense that it would have

issued the second Notice of Hearing and threatened Raye with

termination for dishonesty even if he had not engaged in protected

activity by filing an OSHA complaint.   Second, Pan Am argues that

the $250,000 punitive damages award was unsupported by substantial

evidence and clearly excessive.    Pan Am does not challenge the

abuse of discretion standard of judicial review as to the amount

of punitive damages.




     4    With respect to findings of fact, "it is the ALJ's unique
prerogative in the first instance to 'draw inferences and make
credibility assessments, and we may not disturb his judgment and
the [ARB's] endorsement of it so long as the [ALJ's] findings are
adequately anchored in the record.'" Bath Iron Works, 336 F.3d at
56 (quoting Bath Iron Works Corp. v. Dir., Office of Workers Comp.
Programs, U.S. Dep't of Labor, 244 F.3d 222, 231 (1st Cir. 2001)).


                              - 12 -
A.   Rejection of Pan Am's Affirmative Defense that It Would Have
     Charged Raye with Dishonesty Even Absent His Protected
     Activity

            Under the FRSA, an employee alleging retaliation bears

the initial burden of demonstrating that his protected activity

"was a contributing factor in the unfavorable personnel action

alleged in the complaint."5    49 U.S.C. § 42121(b)(2)(B)(iii); see

id. § 20109(d)(2)(A).    Pan Am does not dispute that Raye met his

"contributing factor" burden and shifted the burden to Pan Am to

prove, "by clear and convincing evidence," that it "would have

taken the same unfavorable personnel action in the absence of [the

protected activity]."    Id. § 42121(b)(2)(B)(iv).6

            Pan Am takes two tacks in challenging the ALJ's rejection

of its affirmative defense.    First, it argues that the ALJ abused

his discretion by excluding material comparator evidence.    Second,

it argues that the mere fact of discrepancy between the two

accounts of Raye's accident is sufficient to meet Pan Am's burden

of proof.




     5    Pan Am has abandoned one of its original theories: that
there was no "adverse action," as a matter of law, given that Raye
was not punished after the second disciplinary proceeding.
     6    The "clear and convincing evidence" standard is more
demanding than a preponderance standard and requires "proof that
the [employer's] assertions are 'highly probable.'" United States
v. Volungus, 730 F.3d 40, 46–47 (1st Cir. 2013) (quoting Colorado
v. New Mexico, 467 U.S. 310, 316–17 (1984)).


                                - 13 -
     1.     Pan Am's Comparator Evidence

            Pan Am faults the ALJ for excluding certain notices of

investigation and records of arbitration awards, which Pan Am

sought to introduce as additional comparator evidence.                There was

no abuse of discretion in the ALJ's decision to exclude those

exhibits.     Pan Am contends that the exhibits were admissible as

business records or public records.            See 29 C.F.R. § 18.803(a)(6),

(a)(8).   But that argument misses the point: the KALJ excluded the

exhibits not because they were hearsay, but rather because their

probative value was minimal without a witness to explain their

significance and in light of the exhibits already in evidence.

See id. § 18.403.       The ALJ was within his discretion in concluding

that the proffered exhibits, without additional context, should

not be admitted.

            In any event, the record makes clear that any error was

harmless.   The excluded exhibits, on their face, merely suggested

that Pan Am may have previously disciplined employees for false

statements.      The    key     issue,   however,    was   whether   the    false

statements in those instances were of a similar character as the

discrepancy    that     Pan     Am   chose    to   investigate    formally      and

aggressively    in     Raye's    case.       The   excluded    exhibits    do   not

themselves describe circumstances that are reasonably comparable

to Raye's, and no other evidence makes them so.               There is no reason

to believe that the ALJ would have afforded the exhibits any


                                      - 14 -
weight, or changed his mind, had they been admitted.              See R & B

Transp., 618 F.3d at 46 (finding "any purported [evidentiary] error

. . . harmless in light of the other evidence" considered by the

ALJ); Mekhoukh v. Ashcroft, 358 F.3d 118, 130 (1st Cir. 2004) ("The

evidence [not considered] contains no information that materially

affects the outcome of [petitioner's] claims.").

              Pan Am also argues that the comparator evidence the ALJ

did   admit    was   sufficient   to   meet   its   burden   to   prove   its

affirmative defense.       But those disciplinary records, too, had

only indirect relevance to Raye's case: they involved patently and

materially false hearing testimony by the employees, rather than

mere discrepancies, and the notices given there to the employees

did not threaten to fire them after the employees had made a

statement to OSHA.

      2.      Rejection of Pan Am's Purportedly Non-Retaliatory Motive
              for Charging Raye with Dishonesty

              Pan Am contends that the two accounts of Raye's accident

were "fundamentally irreconcilable" and that the discrepancy gave

Pan Am a non-retaliatory motive to charge Raye with dishonesty-

related violations and to hold a second formal hearing.             But the

ALJ had substantial evidence and reason not to credit Pan Am's

explanation.

              First, the ALJ was entitled to evaluate the hearing

testimony of Schultz, Pan Am's key decision maker, and decide




                                  - 15 -
whether Schultz's explanation was sufficiently credible.             There

were reasons to doubt Schultz's credibility.            In his initial

testimony, he mischaracterized the description of the accident

contained in the OSHA complaint.     Only on cross-examination did he

admit his mischaracterization. The ALJ also reasonably gave weight

to Schultz's failure simply to ask Raye about the perceived

discrepancy before rushing to charge Raye formally with dishonesty

and to threaten him with the loss of his job.            Again, the ALJ

rejected Pan Am's purported reasons for its failure to do so.

            Although there may be room for disagreement about the

significance and extent of the discrepancy, we are not the triers

of fact.    Substantial evidence supported the ALJ's conclusion that

Pan Am overstated the significance of the discrepancy and failed

to prove that it would have taken the same adverse actions if Raye

had not filed the OSHA complaint.

            Pan Am argues that the ALJ ignored an ARB precedent

requiring him to consider "the proportional relationship between

the adverse actions and the bases for the actions."          See Speegle

v. Stone & Webster Constr., Inc., ARB Case No. 13-074, 2014 WL

1758321, at *7 (Dep't of Labor Admin. Review Bd. Apr. 25, 2014).

That argument is flatly contrary to the record, which reflects

that the ALJ in this case properly took proportionality into

account as circumstantial evidence, as well as "the temporal

proximity    between   the   non-protected   conduct   and   the   adverse


                                 - 16 -
actions."    Id.   As Speegle clearly states, proportionality is only

one of several pieces of circumstantial evidence that an ALJ "can"

consider.    Id.

B.   No Abuse of Discretion in Punitive Damages Award

            The remaining issue is whether the $250,000 punitive

damages award was unsupported by substantial evidence, contrary to

law, or clearly excessive.        We conclude that the ALJ's choice of

award was not an abuse of discretion.

     1.     Background

            An employee who prevails on a FRSA retaliation claim

"shall be entitled to all relief necessary to make the employee

whole," 49 U.S.C. § 20109(e)(1), and the relief "may include

punitive    damages   in   an   amount    not    to   exceed   $250,000,"   id.

§ 20109(e)(3).7    The purpose of punitive damages, both in the FRSA

and elsewhere, is twofold: "to punish [a wrongdoer] for his

outrageous conduct and to deter him and others like him from

similar conduct in the future."           Smith v. Wade, 461 U.S. 30, 54

(1983) (quoting Restatement (Second) of Torts § 908(1) (1979)).

            When Congress amended the FRSA in 2007 to expand anti-

retaliation    protections      and   shift     enforcement    authority    from




     7    Prevailing plaintiffs are also entitled to "compensatory
damages, including compensation for any special damages sustained
as a result of the discrimination, including litigation costs,
expert witness fees, and reasonable attorney fees." See 49 U.S.C.
§ 20109(e)(2)(C).


                                      - 17 -
arbitrators to the Department of Labor, it said that it was aiming

to   address   and   rectify      railroads'      history   of   systematically

suppressing employee injury reports through retaliatory harassment

and intimidation.      See Araujo v. N.J. Transit Rail Operations,

Inc., 708 F.3d 152, 156–57 & n.3, 159 & n.6 (3d Cir. 2013)

(discussing the legislative history of the 2007 FRSA amendment).

Congress's     amendment    not    only    gave    the   Department      of    Labor

enforcement     authority    but    also     put    stronger     tools    in     the

Department's toolbox: the statute's punitive damages cap rose from

$20,000 to $250,000.8       Compare 49 U.S.C. § 20109(c) (2006) (pre-

amendment), with id. § 20109(e)(3) (2012) (post-amendment).

             As Pan Am acknowledges, the test for awarding punitive

damages in FRSA whistleblower cases is the same common law test

that Smith used for actions under 42 U.S.C. § 1983.               See Worcester

v. Springfield Terminal Ry. Co., 827 F.3d 179, 182–84 (1st Cir.

2016) (applying Smith standard); BNSF Ry. Co. v. U.S. Dep't of

Labor, 816 F.3d 628, 642 (10th Cir. 2016) (same).                         We have

described the Smith test as a "reckless disregard standard,"

Worcester, 827 F.3d at 183, meaning that punitive damages are

warranted if a railroad acted "[w]ith malice or ill will or with




      8   Post-amendment jury awards of punitive damages, under
the FRSA, are reduced to this statutory cap if necessary. See,
e.g., Barati v. Metro-North R.R. Commuter R.R. Co., 939 F. Supp.
2d 143, 145 (D. Conn. 2013) (granting motion to reduce $1,000,000
jury award of punitive damages to $250,000).


                                     - 18 -
knowledge that its actions violated federal law or with reckless

disregard or callous indifference to the risk that its actions

violated federal law," id. at 182 (alteration and emphases in

original).

     2.      An Award of Punitive Damages Was Warranted

             Substantial evidence in the record supports the ALJ's

conclusion that punitive damages were warranted on account of Pan

Am's "reckless or callous disregard for [Raye's] rights, as well

as intentional violations of federal law."            Smith, 461 U.S. at 51.

The ALJ specifically found that Pan Am had willfully retaliated

against   Raye    for   filing    an    OSHA    complaint       and   that   it   had

"consciously disregarded Raye's statutorily-protected rights under

the FRSA, and in fact intentionally interfered with the exercise

of those rights."       Those were reasonable inferences, in light of

the facts developed at the ALJ hearing.

     3.      A Statutory-Maximum Award of Punitive Damages Was Not
             Clearly Excessive

             The evidence on which the punitive damages award rests

does not pertain solely to how Pan Am treated Raye.                      The ALJ's

opinion   cites     several   additional        reasons,    all       supported   by

substantial      evidence.       For   example,    Pan     Am    exaggerated      the

seriousness of the supposedly "major" discrepancy, both in the

second Notice of Hearing and in Schultz's testimony before the

ALJ, and Schultz's dissembling gave reason to be concerned about




                                       - 19 -
Pan Am's culture.           Pan Am's choice to charge Raye with dishonesty

was made not by a low-level manager but by its corporate legal

department and a Vice President.                Pan Am chose not to make use of

OSHA's built-in factfinding process to address the discrepancy,

and instead threatened Raye with the dishonesty charges.                    Finally,

Pan Am appeared to the ALJ to have a corporate culture more focused

on retaliation than on safety: the ALJ found that 99% of injuries

at Pan Am that were reportable to the FRA triggered formal charges

against the injured employee, in stark contrast to Pan Am's

apparent      nonchalance        about    its   own   responsibility   to    improve

safety and remove hazards like the one Raye reported.

                  The difficult question is not whether there should have

been a punitive damages award at all, but whether Pan Am has shown

that a $250,000 award, set at the statutory maximum, was an abuse

of discretion.            See Cooper Indus., Inc. v. Leatherman Tool Grp.,

Inc.,       532    U.S.   424,   432–33    (2001)     (federal   appellate   courts

generally review the size of a punitive damages award for abuse of

discretion, assuming that "no constitutional issue is raised" and

that the award was within statutory limits).9                    Our deference to




        9 Pan Am has not challenged the size of the punitive
damages award on constitutional grounds. Cf. State Farm Mut. Auto
Ins. Co. v. Campbell, 538 U.S. 408, 416–17 (2003) (discussing the
"procedural and substantive constitutional limitations" applicable
to punitive damages awards); Méndez-Matos v. Municipality of
Guaynabo, 557 F.3d 36, 47, 52–56 (1st Cir. 2009) (reducing a jury's
punitive damages award to comport with due process).


                                          - 20 -
the ALJ's choice, to be sure, "is not boundless."    United States

ex rel. D'Agostino v. EV3, Inc., 802 F.3d 188, 192 (1st Cir. 2015).

Still, in this instance, we will not disturb the $250,000 award.

          The Supreme Court has recently reminded us about the

reasons for an abuse of discretion standard: "basic principles of

institutional capacity counsel in favor of deferential review"

when a factfinder's decision "turns not on 'a neat set of legal

rules' but instead on the application of broad standards" to the

specific and nuanced facts of a particular case.     McLane Co. v.

EEOC, No. 15-1248, 2017 WL 1199454, at *7 (U.S. Apr. 3, 2017)

(quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).    In cases

like this one, a Department of Labor ALJ's subject matter expertise

and experience with whistleblower cases make him or her well suited

to make the "discretionary moral judgment[s]," Smith, 461 U.S. at

52, and the "fact-intensive, close calls," McLane, 2017 WL 1199454,

at *7 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404

(1990)), that must inform any punitive damages determination --

whether under the FRSA or another statute.     Abuse of discretion

review is not "no review at all," Wilton v. Seven Falls Co., 515

U.S. 277, 289 (1995), but when applying that standard we will

refrain from "reweighing evidence and reconsidering facts already

weighed and considered by the [ALJ]," McLane, 2017 WL 1199454, at

*7 (quoting Cooter & Gell, 496 U.S. at 404).




                              - 21 -
            The ALJ was entitled, within wide limits, to decide how

much weight to afford to each of the relevant facts, to assess the

credibility of the witnesses at the ALJ hearing, and to make the

fact-sensitive and "discretionary moral judgment[s]" that Smith

requires.      461 U.S. at 52.      The question of excessiveness is a

close   one,   but   like   the   ARB   we   ultimately   see   no   abuse   of

discretion in the ALJ's conclusion that a maximum award was

warranted here to accomplish the FRSA's goal of punishing and

deterring retaliatory conduct by employers like Pan Am.

                                    III.

            We deny Pan Am's petition for review.         Costs are awarded

against Pan Am.




                                   - 22 -
