Lee v. Norfolk S. Ry. Co.

• Decision Date: 17 September 2015
• Docket Number: No. 14–1585.,14–1585.
• Citation: 802 F.3d 626
• Parties: Charles T. LEE, Plaintiff–Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant–Appellee. Secretary of Labor, Amicus Supporting Appellant, Association of American Railroads, Amicus Supporting Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

802 F.3d 626

Charles T. LEE, Plaintiff–Appellant

v.NORFOLK SOUTHERN RAILWAY COMPANY, Defendant–Appellee.

Secretary of Labor, Amicus Supporting Appellant

Association of American Railroads, Amicus Supporting Appellee.

No. 14–1585.

United States Court of Appeals, Fourth Circuit.

Argued May 12, 2015.

Decided Sept. 17, 2015.

ARGUED:William Cox Tucker, Jr., Maples Tucker & Jacobs, Birmingham, Alabama, for Appellant. John Bruce Lewis, Baker & Hostetler LLP, Cleveland, Ohio, for Appellee. Donald J. Munro, Jones Day, Washington, D.C., for Amicus Association of American Railroads. Rachel Goldberg, United States Department of Labor, Washington, D.C., for Amicus Secretary of Labor. ON BRIEF:Rachel S. Decker, Carruthers & Roth P.A., Greensboro, North Carolina, for Appellant. M. Daniel McGinn, Nicole A. Crawford, Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Greensboro, North Carolina; Dustin M. Dow, Baker & Hostetler LLP, Cleveland, Ohio, for Appellee. M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, William C. Lesser, Deputy Associate Solicitor, Megan E. Guenther, Counsel for Whistleblower Programs, United States Department of Labor, Washington, D.C., for Amicus Secretary of Labor. Louis P. Warchot, Daniel Saphire, Association of American Railroads, Washington, D.C.; Ronald M. Johnson, M. Carter DeLorme, Jones Day, Washington, D.C., for Amicus Association of American Railroads.

Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

Opinion

Reversed and remanded by published opinion. Judge FLOYD wrote the opinion, in which Judge NIEMEYER and Judge DIAZ joined.

FLOYD, Circuit Judge:

This appeal arises from two lawsuits filed by Charles Lee against his employer, Norfolk Southern Railway Company (NS). In the first lawsuit, Lee claimed that NS suspended him on the basis of his race in violation of 42 U.S.C. § 1981. After the district court granted NS summary judgment, Lee filed his second lawsuit, claiming that NS in fact suspended him for reporting rail safety offenses, in violation of the whistleblower protection provision of the Federal Railroad Safety Act (FRSA). The district court again granted summary judgment to NS, holding that Lee's second lawsuit was barred by the FRSA's “Election of Remedies” provision, which provides that “[a]n employee may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier.” 49 U.S.C. § 20109(f).

We disagree. As explained below, a suspension on the basis of race is not “the same allegedly unlawful act” as a suspension in retaliation for FRSA whistleblowing. Accordingly, we vacate the district court's judgment and remand for further proceedings.

I.

Charles Lee works as carman for NS in Asheville, North Carolina. As a carman, he is responsible for inspecting railcars to identify potential service-related defects. In July 2011, NS suspended Lee without pay for six months. The parties dispute the reason for the suspension. NS claims it suspended Lee because he drank a beer on duty and then operated a company-owned automobile in violation of company policy; Lee, who is African–American, claims the suspension was motivated both by his race and in retaliation for federal rail safety whistleblowing.

On September 21, 2011, Lee filed his first lawsuit, alleging that the suspension constituted racial discrimination in violation of 42 U.S.C. § 1981. In the complaint, Lee alleged several instances where NS favored white carmen over African–American carmen. First, Lee contended that NS trained and promoted white carmen pursuant to a collective bargaining agreement with the carman's union, but denied African–American carmen those same opportunities. Second, Lee alleged that his white supervisor also drank beer while on duty, and the supervisor was not punished. Finally, Lee alleged several instances of racial harassment, such as his co-workers hanging a noose in his locker, threatening his children, and calling him racial slurs.

Less than two months after filing his first lawsuit, Lee filed a complaint with the Occupational Safety and Health Administration (OSHA) under the FRSA's whistleblower provision, 49 U.S.C. § 20109. That provision prohibits railroad carriers from, among other things, discriminating against employees who “refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security.” Id. § 20109(a)(2). According to Lee, federal law required him to identify—or “bad order”—defective rail cars for repair. NS capped the number of cars he could tag with such orders, however, effectively requiring him to violate federal law. When he refused to comply with the caps, Lee alleges that NS suspended him in July 2011.

During discovery in the first lawsuit, NS's attorney sought to depose Lee about the OSHA whistleblower complaint, believing it to be “part of [Lee's] lawsuit here [in federal district court] too.” J.A. 331. Lee's attorney objected, noting that Lee did not bring his FRSA claims in his first lawsuit, because he was first required to exhaust his administrative remedies before OSHA and the Secretary of Labor.¹ Although the parties ultimately agreed to defer discussing the OSHA complaint, they left the door open to returning to it when the matter was ripe. Id. (NS's attorney agreeing that if either party ultimately decided to address the OSHA whistleblower complaint in the first lawsuit, “then arrangements will be made at a later time to allow that party to get into it”).

On September 21, 2012, OSHA dismissed Lee's whistleblower complaint after concluding that NS did not commit any FRSA violations. Lee timely objected, and sought a hearing before a Department of Labor administrative law judge (ALJ). On November 20, 2012, Lee gave notice to the ALJ that he intended to exercise his right to file a lawsuit under the FRSA's kick-out provision. Lee did not, however, seek to amend his Section 1981 complaint to add his FRSA claims. He also did not notify the district court that he intended to file a lawsuit under the FRSA.

Accordingly, when the district court granted NS summary judgment on December 12, 2012, the order addressed only Lee's Section 1981 claims, not his FRSA claims. First, the district court concluded that, to the extent Lee's claims were based on the collective bargaining agreement, they were preempted by the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., which requires arbitration of such claims. The court further concluded that NS was not vicariously liable for the individual instances of racial harassment by Lee's co-workers (including the incident with the noose and use of racial slurs).

Less than a month after the district court granted NS summary judgment in the first lawsuit, Lee filed his FRSA retaliation lawsuit. The allegations in this second lawsuit largely track those in Lee's OSHA complaint. Lee again alleged that he was tasked with tagging defective train cars with “bad orders,” but that NS capped the number of cars he could tag. In doing so, Lee contends NS pressured him to “violate federal rail safety regulations and laws and violate NS's own safety and mechanical department rules.” J.A. 10. Notably, the specific retaliatory acts are identical to the retaliatory acts alleged in Lee's first complaint, including that NS (i) refused to properly train and promote him; (ii) allowed him to be racially harassed by his co-workers; and (iii) suspended him on July 2011, purportedly for drinking a beer while on the job.

On May 20, 2014, the district court granted summary judgment to NS on Lee's FRSA claims, concluding that Lee's first lawsuit for racial discrimination under Section 1981 constituted an election of remedies under FRSA Section 20109(f) that barred Lee's subsequent FRSA retaliation action. Lee then timely noted this appeal.

II.

This appeal turns on the meaning of the FRSA's Election of Remedies provision. See 49 U.S.C. § 20109(f). We begin with a brief summary of the relevant statutory background to provide context for the parties' arguments.

Congress enacted the FRSA in 1970 to promote safety in railroad operations. See 49 U.S.C. § 20101 et seq. When it was enacted, the FRSA did not contain a whistleblower provision. In 1980, Congress amended the FRSA to add such a provision to prohibit railroads from retaliating against employees who provided information about violations of federal railroad safety laws. See Federal Railroad Safety Authorization Act of 1980, Pub.L. No. 96–423, § 10, 94 Stat. 1811 (1980) ; Rayner v. Smirl, 873 F.2d 60, 63–64 (4th Cir.1989). Employees who sought to bring an FRSA retaliation claim under this new provision were required to do so under the mandatory arbitration procedure established under the RLA. See Pub.L. No. 96–423, § 10, sec. 212(c)(1). The 1980 amendments also added the Election of Remedies provision, which required an employee seeking protection “under any other provision of law in connection with the same allegedly unlawful act of an employer” to choose “either to seek relief pursuant to this section [the FRSA] or pursuant to such other provision of law.” Pub.L. No. 96–423, § 10, sec. 212(d).

In 2007, Congress again amended the FRSA to “enhance[ ] administrative and civil remedies for employees” and “ensure that employees can report their concerns without the fear of possible retaliation or discrimination from employers.” H.R. Conf. Rep. No. 110–259, at 348 (2007), reprinted in 2007 U.S.C.C.A.N. 119, 180–81, 2007 WL 2162339. Among other changes, Congress eliminated the requirement that retaliation claims be resolved in arbitration under the RLA. In its place, Congress established an administrative procedure under which retaliation complaints are first resolved by OSHA and the Secretary of Labor (and then in the district courts after exhausting these administrative procedures).²

Congress also added provisions stating that nothing in the FRSA's retaliation provision preempted or diminished...