Fulk v. Norfolk S. Ry. Co.
| Decision Date | 04 August 2014 |
| Docket Number | No. 1:13CV234.,1:13CV234. |
| Citation | 35 F.Supp.3d 749 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | Dana B. FULK, The Estate of John H. Fulk III, and John Fulk III, Plaintiffs, v. NORFOLK SOUTHERN RAILWAY COMPANY and Norfolk Southern Corporation, Defendants. |
William Cox Tucker, Jr., Petway, Tucker & Barganier, LLC, Birmingham, AL, Rachel Scott Decker, Carruthers & Roth, PA, Greensboro, NC, for Plaintiffs.
Jeffrey S. Berlin, Sidley Austin LLP, Washington, DC, John S. Buford, M. Daniel McGinn, Nicole A. Crawford, Reid L. Phillips, Brooks Pierce McLendon Humphrey & Leonard, LLP, Greensboro, NC, for Defendants.
Presently before the court is Defendants' Motion to Dismiss (Doc. 10). Defendants have filed a memorandum (Doc. 11) in support of their motion, Plaintiffs have filed a response in opposition (Doc. 20), and Defendants have filed a reply (Doc. 21).1 Defendants' motion is now ripe for adjudication, and for the reasons that follow, this court will grant the motion in part and deny it in part.
The following facts are presented in the light most favorable to Plaintiffs. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Plaintiffs bring suit against Norfolk Southern Railway Company and Norfolk Southern Corporation (collectively, “Norfolk Southern” or “Defendants”), its parent company, alleging violations of the Federal Employers' Liability Act (“FELA”), 45 U.S.C. §§ 51 –60, and the anti-retaliation section of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109.2 Norfolk Southern is a common carrier by railroad that is engaged in interstate commerce. (Complaint (“Compl.”) (Doc. 1) ¶ 8.)
John H. Fulk III (“Mr. Fulk”) worked for Norfolk Southern as a railroad car inspector at Linwood Yard, North Carolina. (Id. ¶ 9.) As an inspector, Mr. Fulk was responsible for many safety-related functions, including the examination of rail cars for defects or noncompliance with Federal Railroad Administration (“FRA”) regulations. (Id. ¶ 10.) When inspectors found a defective or noncompliant car, they were supposed to place a “bad order” tag on the car. (Id. ¶ 11.) Those tags would list the discovered defects and compliance issues and notify the carmen in the repair shop what repairs needed to be made. (Id. ) Tagged cars were placed in “bad order” status and were not allowed to be put back in use until the repairs were completed. (Id. )
Mr. Fulk became extremely bothered by the attitude of Norfolk Southern management toward FRA regulations. (Id. ¶ 14.) The management consistently chose to get trains out on time rather than comply with regulations. (Id. ) In addition, Norfolk Southern management had “bad order” quotas and did not want inspectors or carmen, including Mr. Fulk, to place tags on defective cars and cause the “bad order count” to go “up.” (Id. ¶ 15.)
Norfolk Southern supervisors set a bad order target of fifty such orders at any one time at Linwood Yard no matter how many cars were defective or noncompliant. (Id. ¶ 16.) This fifty-car “shop count” was discussed daily in the workplace. (Id. ) When the “shop count” was greater than fifty, Norfolk Southern management told the inspectors that the company did not “need any more bad order cars.” (Id. ) Employees who continued finding bad orders after there were already fifty were targeted for harassment. (Id. ¶ 17.)
Norfolk Southern management pressured Mr. Fulk not to bad order cars, and Mr. Fulk's bad order tags were routinely removed before the car had been repaired. (Id. ¶ 20.) It was made very clear to Mr. Fulk that he was expected to limit his bad orders, which would have required Mr. Fulk to violate FRA regulations and Norfolk Southern's own rules. (Id. ¶ 21.) Mr. Fulk refused to follow this order and continued to tag cars that were defective or noncompliant with FRA regulations. (Id. ¶ 22.) Because of his adherence to FRA regulations, Mr. Fulk was subjected to abusive intimidation, disciplinary threats, and job threats by Norfolk Southern management. (Id. ) Although he reported these acts and omissions, Norfolk Southern never took action to stop such treatment. (Id. ¶ 24.)
On January 6, 2011, Norfolk Southern accused Mr. Fulk of trying to “sabotage” the braking system on one of its trains. (Id. ¶ 25.) A formal hearing was scheduled for January 19, 2011, on charges of “improper performance of duty” and “conduct unbecoming an employee.” (Id. ) The charges were false. (Id. ¶ 26.) Norfolk Southern's actions were an attempt to terminate Mr. Fulk because he would not help violate FRA regulations and to intimidate other employees. (Id. )
Mr. Fulk reported to work as scheduled on January 13, 2011. (Id. ¶ 29.) After signing in, he returned to the employee parking lot and shot himself in the head with a pistol. (Id. ) He died from the wound. (Id. )
Mr. Fulk had drafted letters to the FRA and the Regional Director of the Department of Labor's Occupational Safety and Health Administration (“OSHA”) before his death to report the conduct of Norfolk Southern and its supervisors and make a complaint of retaliation. (Id. ¶ 27.) Those letters outlined various violations of FRA minimum standards. (Id. ) He fully intended to send the letters; however, the scheduled hearing combined with years of harassment and pressure caused Mr. Fulk to suffer a mental and psychological injury, emotional collapse, and breakdown. (Id. ¶ 28.)
A few days after Mr. Fulk's death, his widow filed a retaliation complaint with the OSHA Regional Director on behalf of Mr. Fulk. (Id. ¶ 30.) She attached Mr. Fulk's draft letter. (Id. )
Mrs. Fulk also submitted a complaint to the FRA with the draft letter attached. (Id. ¶ 31.) The FRA conducted an investigation through which it discovered numerous regulatory violations. (See id. at ¶¶ 32–36 ().) Employees who were interviewed during the investigation consistently mentioned Mr. Fulk as a target of Norfolk Southern supervisors; however, no one was willing to sign a witness statement for fear of retaliation. (Id. ¶ 33.)
Plaintiffs filed this de novo action after a final administrative decision on the FRSA claim had not been issued within 210 days. See 49 U.S.C. § 20109(d)(3).
Defendants move to dismiss Plaintiffs' FRSA claim pursuant to Federal Rule of Civil Procedure 12(b)(1) and their FELA claim pursuant to Rule 12(b)(6). A Rule 12(b)(1) motion challenges the court's subject matter jurisdiction. When, as here, a defendant “makes a facial challenge to subject matter jurisdiction, ‘the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.’ ” Kerns v. United States, 585 F.3d 187, 192 (4th Cir.2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982) ). Accordingly, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Id.
To survive a Rule 12(b)(6) motion, a plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In order for a claim to be facially plausible, a plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable” and must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). When ruling on a Rule 12(b)(6) motion, a court must accept the complaint's factual allegations as true. Id. However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ).
For the reasons that follow, this court finds that the motion to dismiss should be granted as to the FELA claim and denied as to the FRSA claim. The potential damages available under the FRSA are outlined in this order.
Defendants move to dismiss the FELA claim on three grounds: (1) the Complaint fails to allege a compensable injury, (2) the Complaint fails to adequately allege causation, and (3) the Complaint fails to allege that Defendants had notice of any mental illness or other propensity of Mr. Fulk to harm himself. Because this court finds that the Complaint does not allege any injuries that are compensable under FELA, it does not address Defendants' other arguments for dismissal.
As relevant in this case, FELA imposes liability upon an interstate common carrier by railroad to its employees for “injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” 45 U.S.C. § 51. Although the statute mentions only negligence, FELA “has been construed to cover some intentional torts.” Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562 n. 8, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987) ; see also Slaughter v. Atl. Coast Line R.R. Co., 302 F.2d 912, 915–16 (D.C.Cir.1962) (). A “relaxed standard of causation applies under FELA,” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) : The “single inquiry” is whether “negligence of the employer played any part at all in the injury or death.” Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 507, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) ; see also CSX Transp., Inc. v. McBride, 564 U.S. ––––, 131 S.Ct. 2630, 2638–39, 180 L.Ed.2d 637 (2011). The act is primarily “intended to provide compensation for the...
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