Gunderson v. BNSF Ry. Co., Case No. 14–CV–0223 (PJS/JJG).

• Court: United States District Courts. 8th Circuit. United States District Court of Minnesota
• Writing for the Court: PATRICK J. SCHILTZ
• Citation: 29 F.Supp.3d 1259
• Parties: Paul GUNDERSON, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant.
• Docket Number: Case No. 14–CV–0223 (PJS/JJG).
• Decision Date: 30 June 2014

29 F.Supp.3d 1259

Paul GUNDERSON, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

Case No. 14–CV–0223 (PJS/JJG).

United States District Court, D. Minnesota.

Signed June 30, 2014

Motion denied.

Fredric A. Bremseth and Christopher J. Moreland, Bremseth Law Firm, P.C., for plaintiff.

Sally J. Ferguson and Lee A. Miller, Arthur Chapman Kettering Smetak & Pikala, P.A.; Jacqueline M. Holmes and Joanne R. Bush, Jones Day, for defendant.

ORDER
PATRICK J. SCHILTZ, District Judge.

Plaintiff Paul Gunderson is a former employee of defendant BNSF Railway Company (“BNSF”). Gunderson brings this action under the whistleblower provision of the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20109, alleging that he was harassed and terminated from his job in retaliation for reporting safety violations and filing a personal-injury report. BNSF moves to dismiss this action on the ground that Gunderson has waived his right to bring it. For the reasons stated below, the Court denies BNSF's motion.

[29 F.Supp.3d 1260]

I. BACKGROUND

A. The Administrative Process

Section 20109 prohibits rail carriers from retaliating against employees for various types of protected conduct, including reporting a safety violation and notifying the carrier of a work-related injury. An employee who believes that his employer has violated § 20109 may file a complaint with the Secretary of Labor (“Secretary”) within 180 days of the violation. 49 U.S.C. § 20109(d)(1), (2).

The administrative process involves multiple levels of review. Initially, the Secretary undertakes an investigation and issues a written finding as to whether there is reasonable cause to believe that the employer violated § 20109. 29 C.F.R. §§ 1982.104–105. A party may obtain review of the Secretary's finding by filing an objection. 29 C.F.R. § 1982.106. An administrative law judge (“ALJ”) then conducts a hearing and issues findings of fact and conclusions of law. 29 C.F.R. §§ 1982.107, 1982.109. The parties may petition for review of the ALJ's decision before the Administrative Review Board (“ARB”). 29 C.F.R. § 1982.110(a). If neither party petitions for review—or if the ARB declines to accept the petition—then the ALJ's decision becomes the final order of the Secretary. 29 C.F.R. § 1982.110(a), (b). Finally, the parties may appeal the Secretary's final order to the United States Court of Appeals for the circuit in which the violation allegedly occurred. 49 U.S.C. § 20109(d)(4); 29 C.F.R. § 1982.112.

Under certain circumstances, however, employees have the right to abandon the administrative process and file an original action in federal district court. In particular, if the Secretary fails to issue a final decision within 210 days after the administrative complaint was filed, and if the delay was not due to bad faith on the employee's part, then the employee may bring an original action for de novo review in federal district court. 49 U.S.C. § 20109(d)(3).

B. Gunderson's Administrative Proceedings

After BNSF terminated Gunderson, he filed a timely § 20109 complaint with the Secretary. Compl. ¶ 5. About nine months later, the Secretary found that there was no reasonable cause to believe that BNSF had violated § 20109. Bush Decl. Ex. 1.

Gunderson filed an objection and sought a hearing before the ALJ. Bush Decl. Ex. 2. The ALJ scheduled a period of discovery and an evidentiary hearing. ¹ Bush Decl. Ex. 3. The record is not clear concerning how long the hearing lasted, but it spanned at least four days and possibly seven. Bush Decl. Ex. 4. During the hearing, the ALJ heard testimony from witnesses and admitted various exhibits into evidence. See generally Bush Decl. Ex. 5.

Following the hearing, the ALJ issued a 14–page opinion concluding that BNSF terminated Gunderson for threatening and harassing a fellow employee rather than in retaliation for protected conduct. Bush Decl. Ex. 5. Gunderson had ten business days to file a petition for review before the ARB. 29 C.F.R. § 1982.110(a), (b). On the eighth business day after the ALJ's decision, Gunderson filed a “Notice of Intent to File Original Action” before the ALJ. Compl. ¶ 6. He filed this action the next day.² ECF No. 1. The record

[29 F.Supp.3d 1261]

does not reflect whether Gunderson also filed a petition for review of the ALJ's decision before the ARB.

II. ANALYSIS A. Standard of Review

In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th Cir.2008). Ordinarily, if the parties present, and the court considers, matters outside of the pleadings, the motion must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d). But the court may consider materials that are necessarily embraced by the complaint, as well as any exhibits attached to the complaint, without converting the motion into one for summary judgment. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n. 4 (8th Cir.2003).

BNSF submitted materials outside of the complaint—namely, a declaration attaching portions of the administrative record. Neither side has objected to the Court's consideration of these materials. It appears to the Court, however, that at least some of these materials are not necessarily embraced by the complaint, and that it is therefore necessary for the Court to treat BNSF's motion as one for summary judgment. Although the Court did not give the parties notice of its intent to convert BNSF's motion into one for summary judgment, neither side has been prejudiced, as the relevant facts are undisputed, BNSF's motion presents a question of law, and Gunderson has had a full opportunity to respond to BNSF's submissions. See Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir.2012) (“Any lack of formal notice by the district court that it would convert the motion to one for summary judgment was harmless considering Ashanti's adequate opportunity to respond to Golden Valley's motion and the lack of any showing that any material facts were disputed or missing from the record.”).

B. Waiver

There is no dispute that the Secretary did not issue a final decision within 210 days of the filing of Gunderson's administrative complaint. There is also no dispute that the delay was not due to any bad faith on Gunderson's part. Under the plain language of § 20109(d)(3), then, Gunderson has a right to bring an action in federal district court.

BNSF argues, however, that although Gunderson acquired the right to file a federal lawsuit on the 211th day, he thereafter waived that right by continuing to participate in the administrative process. As BNSF points out, courts hold in a variety of situations that a party can waive its right to litigate in a particular forum by pursuing litigation in an alternative forum. See, e.g., McGraw–Edison Co. v. Van Pelt, 350 F.2d 361, 363–64 (8th Cir.1965) (per curiam) (denial of motions to transfer venue was not an abuse of discretion where the motions were not made until after five months of extensive litigation);

[29 F.Supp.3d 1262]

Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1246 (11th Cir.2004) (a defendant may waive the right to remove a case to federal court by litigating in state court before filing a notice of removal).

The Court has a great deal of sympathy for BNSF's argument. It is indeed extremely...