Welch v. Union Pac. R.R. Co., Case No. 16-00431-CV-W-ODS
| Decision Date | 04 August 2016 |
| Docket Number | Case No. 16-00431-CV-W-ODS |
| Parties | SCOTT WELCH, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant. |
| Court | United States District Courts. 8th Circuit. Western District of Missouri |
Pending is Defendant Union Pacific Railroad Company's ("Union Pacific") Motion to Dismiss for Failure to State a Claim. Doc. #5. Union Pacific's motion is granted.
In April 2014, Plaintiff Scott Welch filed a complaint with the Department of Labor's ("DOL") Occupational Safety and Health Administration ("OSHA") alleging Union Pacific violated the Federal Railway Safety Act ("FRSA"). In October 2014, the DOL determined there was "no reasonable cause" to believe Union Pacific violated the FRSA. Doc. #6-4, at 1. The DOL informed Welch he had thirty days to file objections and request a hearing before an administrative law judge. Id. at 2. The DOL also stated "[i]f no objections are filed, these Findings will become final and not subject to court review." Id. Welch did not object to the determination or request a hearing.
In April 2016, Welch filed his Petition in the Circuit Court of Jackson County, Missouri, alleging wrongful termination for reporting violations of laws, statutes, regulations, or rules; refusing to perform an illegal act or an act contrary to the mandate of public policy; providing truthful testimony in a quasi-judicial proceeding about safety violations unfavorable to his employer; and/or otherwise acting in manner public policy would encourage. Doc. #1-1, at 8-9. Union Pacific removed the matter to this Court.
Union Pacific argues Welch's Petition should be dismissed for failure to state a claim because the claims are barred by res judicata and collateral estoppel, Welch has already elected his remedies under the FRSA by filing a complaint with the DOL and cannot seek state law relief for the same allegations, and Missouri law does not recognize a common-law retaliation action for violation of public policy because the FRSA provides an adequate statutory remedy.
The liberal pleading standard created by the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Fed. R. Civ. P. 8(a)(2)). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the...claim is and the grounds upon which it rests.'" Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In ruling on a motion to dismiss, the Court "must accept as true all of the complaint's factual allegations and view them in the light most favorable to the Plaintiff[ ]." Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Id. at 679. A claim is facially plausible if it allows the reasonable inference that the defendant is liable for the conduct alleged. See Horras v. Am. Capital Strategies, Ltd.,729 F.3d 798, 801 (8th Cir. 2013); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
Union Pacific attaches documents to its motion to dismiss, and argues the Court is permitted to examine the documents while considering its motion. Doc. #6, at 7. "If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). There is an exception to this rule. The Court may take judicial notice of matters in the public record without converting the motion into one for summary judgment. See Levy v. Ohl, 47 F.3d 988, 991 (8th Cir. 2007) (citations omitted). This Court takes judicial notice of the DOL's finding. See Faibisch v. Univ. of Minn., 304 F.3d 797, 802-03 (8th Cir. 2002) (); Furnari v. Allenwood Fed. Corr. Inst., 218 F.3d 250, 255-56 (3d Cir. 2000) ().
The FRSA was enacted "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. In 1980, the FRSA was expanded to include protections against retaliation for employees who engaged in protected activity, such as reporting safety violations. Ray v. Union Pac. R.R. Co., 971 F. Supp. 2d 869, 877 (S.D. Iowa 2013) (citing Fed. Railroad Safety Authorization Act of 1980, Pub. L. No. 96-423, § 10, 94 Stat. 1811 (1980)). At that time, employees were required to submit FRSA retaliation claims under the mandatory arbitration procedure established under the Railway Labor Act ("RLA"). Id. (citation omitted); see also Lee v. Norfolk S. Ry. Co., 802 F.3d 626, 630 (4th Cir. 2015). At the same time, the FRSA was amended to include an election of remedies provision, which now reads "[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).
In 2007, Congress eliminated the requirement that retaliation claims be resolved under the RLA, and instead, established an administrative procedure under which retaliation complaints are resolved by OSHA. 49 U.S.C. § 20109(d); see Lee, 802 F.3d at 630. The administrative procedure commences with the filing of a complaint with the DOL. 49 U.S.C. § 20109(d)(1). "[I]f the Secretary of Labor has not issued a final decision within 210 days after the filing of the complaint and the delay is not due to the bad faith of the employee, the employee may bring an original action at law or equity for de novo review in the appropriate district court of the United States...." 49 U.S.C. § 20109(d)(3). The 2007 amendments also included the following: "Nothing in this section preempts or diminishes any other safeguards against...retaliation...provided by Federal or State law." 49 U.S.C. § 20109(g).
Union Pacific, relying on section 20109(f), argues the election of remedies provision bars this action. It argues Welch may not seek remedies under the FRSA by filing a complaint with and receiving a timely finding by the DOL and then also seek remedies under another provision of the law for the same alleged unlawful act. Neither party cited to a case that is directly on point, nor has he Court has been able to locate precedent on the particular issue before the Court.
The manner courts have treated an employee's resolution of disputes under the RLA (the prior mechanism for resolving FRSA disputes) is helpful to the Court's analysis. Some courts, not the Eighth Circuit, have considered whether arbitration under the RLA is "seeking protection under" the FRSA, and whether such action bars a subsequent FRSA action brought in court under the FRSA's election of remedies provision. Courts have determined arbitrating under the RLA does not equate to seeking protection under the FRSA because the RLA provides a mechanism for arbitrating grievances pursuant to a collective bargaining agreement and does not undertake governmental regulations, such as working conditions. See Norfolk S. Ry. Co. v. Perez, 778 F.3d 507, 512 (6th Cir. 2015) (); Grimes v. BNSF Ry. Co., 746 F.3d 184, 191 (5th Cir. 2014) (); Reed v. Norfolk S. Ry. Co., 740 F.3d 420, 423-24 (7th Cir. 2014) (citations omitted) ( an employee, by submitting a grievance to arbitration, "seeks to vindicate his contractual right under a collective bargaining agreement," not protection under another provision of law); Ray, 971 F. Supp. 2d at 880-81 (same); Bjornson v. Soo Line RR. Co., Case No. 14-4596, 2015 WL 5009349, at * 4-13 (D. Minn. Aug. 24, 2015) ().
Mandatory arbitration under the RLA is remarkably dissimilar to the OSHA administrative procedure established by Congress in 2007. Unlike the RLA, which generally governs contractual disputes, the DOL is charged with investigating a complaint that a railroad retaliating against an employee for engaging in protected activity under the FRSA, determining "whether there is reasonable cause to believe that the complaint has merit," and notifying the...
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