Summary Judgment for Railroad in Retailiation Case

The U.S. District Court for the Southern District of Iowa granted summary judgment in favor of the railroad against three plaintiffs in a lawsuit alleging retaliation for engaging in a protected activity under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. During a train crew change in rural Iowa, an outbound crew member was injured. Plaintiffs in the FRSA case, three inbound crew members, and three additional crew members were subjected to a formal investigation, pursuant to their respective collective bargaining agreements (“CBA”), to determine whether they had violated company rules during the crew change. All six were disciplined for rules violations following the formal investigation. Plaintiffs claimed they were disciplined contrary to 49 U.S.C. § 20109(a)(1)(C) [providing information related to an investigation of “a violation of any Federal law, rule, or regulation relating to railroad safety or security…”], when they reported “violations of the Federal Employers’ Liability Act, 45 U.S.C. § 51 (“FELA”), in post-incident statements to their supervisor, to a claims representative, and while testifying at the formal investigation.

The railroad moved for summary judgment on three grounds. First, plaintiffs failed to exhaust their administrative remedies with the Occupational Safety and Health Administration (“OSHA”) regarding some of their claims. Plaintiffs claimed administrative exhaustion was not mandatory. The Court held plaintiffs must first exhaust administrative remedies with OSHA under 49 U.S.C. § 20109(d), citing the Eighth Circuit’s previous statement that “an employee may obtain de novo review of a retaliation claim in federal court after exhausting administrative remedies.” Kuduk v. BNSF Ry. Co., 768 F.3d 786, 788 (8th Cir. 2014). The Court found plaintiffs did not exhaust their administrative remedies related to post-incident statements provided to a claims representative, their claims of excessive operations testing post-incident, or to their claims that they withheld themselves from work to avoid further discipline.

Second, the railroad asserted that some of plaintiffs’ claims required arbitration under the Railway Labor Act, 45 U.S.C. § 151, et seq. (“RLA”), rather than litigation under the FRSA. The Court held plaintiffs’ claims were independent of their CBA and did not require CBA interpretation.

Third and most significantly, the Court agreed plaintiffs failed to set forth a prima facie case of FRSA retaliation. Initially, the Court held plaintiffs did not engage in a protected activity under 49 U.S.C. § 20109(a)(1)(C). The Court held the FELA, a general negligence statute, did not specifically prohibit the conditions plaintiffs claimed were unsafe. Additionally, the Court noted the report of an unsafe condition under the FRSA would fall under 49 U.S.C. § 20109(b), “Hazardous safety or security conditions” and interpreting the report of an unsafe condition as also a report of a violation of federal law under section (a) would make the statutory provisions redundant.

Additionally, even if the Court accepted plaintiffs had engaged in protected activity, the Court found no evidence their activities contributed to the discipline they received. The Court explained that temporal proximity, without more, is insufficient to present a genuine factual issue on retaliation. Plaintiffs’ disagreements with the railroad regarding the legitimacy of their rules violations were not relevant to the Court’s analysis. The Court reaffirmed the Eighth Circuit’s admonition that “[f]ederal courts do not sit as a super-personnel department that reexamines an entity’s business decisions.” See Kuduk, 768 F.3d at 792.

Foster, et. al. v. BNSF Railway Company, Case No. 4:14-cv-313 (S.D. Iowa Jan. 28, 2016). Order.