Brisbois v Soo Line Railroad Company
Filing
32
ORDER granting in part and denying in part 10 Motion to Dismiss/General(Written Opinion). See Order for details. Signed by Judge Patrick J. Schiltz on August 21, 2015. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
LORI BRISBOIS,
Case No. 15‐CV‐0570 (PJS/TNL)
Plaintiff,
v.
ORDER
SOO LINE RAILROAD COMPANY
d/b/a CANADIAN PACIFIC,
Defendant.
Jason Hungerford, NICHOLS KASTER, PLLP, for plaintiff.
Tracey Holmes Donesky & Matthew Tews, STINSON LEONARD STREET LLP,
for defendant.
Plaintiff Lori Brisbois brought this action against her employer, defendant Soo
Line Railroad Company d/b/a Canadian Pacific (“CP”), alleging that CP violated the
Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109, when it retaliated against her
in various ways after she raised safety concerns. This matter is before the Court on CP’s
motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject‐matter jurisdiction
and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. For the reasons that
follow, CP’s motion is granted in part and denied in part.
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I. BACKGROUND
Brisbois has been employed by CP since April 2006 as a laborer, track inspector,
and foreman. Compl. ¶ 2. Brisbois is a member of the Brotherhood of Maintenance of
Way Employes Division (“the Union”). Id. A collective bargaining agreement (“CBA”)
between the Union and CP governs the terms and conditions of Brisbois’s employment.
On July 12, 2012, Brisbois was working as the foreman of a crew at CP’s rail yard
in St. Paul, Minnesota. Id. ¶ 6. Her crew was working on two tracks, both of which
were “protected”—that is, configured so that a train could not come onto the tracks
while the crew was working. See id. ¶¶ 8, 10, 11. The adjacent tracks, however, were
“live”—that is, not protected. See id. ¶¶ 9, 11.
After being briefed regarding the hazards at the St. Paul yard that day, Ken
Heath, a supervisor, gave permission to several of Brisbois’s crew members to walk on
the adjacent live tracks “as long as they were careful.” Id. ¶¶ 12, 14. Brisbois saw at
least one crew member walking on one of the live tracks. Id. ¶ 15. She immediately
secured protection for the track and then confronted Heath about her safety concerns.
Id. ¶¶ 16, 17. Heath “accused [Brisbois] of being argumentative and sent her home.” Id.
¶ 18.
Brisbois was then charged with “being quarrelsome and not following
instructions,” in violation of CP’s rules. Id. ¶ 19. On August 30, 2012, after a
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disciplinary hearing (also called an “investigation hearing”), CP found that Brisbois had
violated its rules and disciplined her by suspending her for five days and restricting her
seniority as a foreman for one year. Id. ¶ 23. Brisbois alleges that CP also denied her
pay and mileage reimbursements to which she was entitled for attending the
disciplinary hearing. Id. ¶ 25. Brisbois also alleges that in the ensuing months CP
denied her “several assistant foreman and related positions that she was qualified for.”
Id. ¶ 24.
On October 18, 2012, Brisbois’s car was damaged while she was at work. See id.
¶ 26. The car was parked “in a parking area with limited access and no real reason for
non‐railroad employees to be.”1 Id.
On January 11, 2013, Brisbois called the Occupational Safety and Health
Administration (“OSHA”) to make a complaint against CP for retaliating against her
after she raised safety concerns. See id. ¶ 27. She spoke with an OSHA investigator on
January 18, 2013.
Brisbois alleges that, from April 2 to April 4, 2013, CP “refused to permit [her] to
return to work” after a brief medical absence, even though she had been medically
cleared to return. See id. ¶ 28. Brisbois also alleges that after she contacted OSHA, CP
1
It appears from materials outside of the pleadings that Brisbois’s car was
damaged in Kenosha, Wisconsin—approximately 350 miles from St. Paul—while she
was working under a different manager. See LeDuc Decl. [ECF No. 17].
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“subjected [her] to additional allegations of rule violations” and conducted a
disciplinary hearing on those allegations, “further denied [her] meal and other
reimbursements,” and “continued to deny [her] assistant foreman and related
positions.” Id. ¶¶ 29‐31.
As noted, Brisbois contacted OSHA in January 2013 to complain of CP’s alleged
retaliation. The OSHA investigator to whom she spoke mistakenly told her that her
complaint appeared to be untimely. Id. ¶ 32. Brisbois alleges that she nevertheless
wanted to pursue her complaint, but the OSHA investigator mistakenly concluded that
she wanted to drop the matter. Id. OSHA confirmed its (mistaken) conclusion in a
letter to Brisbois on January 18, 2013. Id. The letter stated that, because Bribois did not
want to pursue her compliant, “OSHA was taking no further action regarding
[Brisbois]’s allegations.” Id. Brisbois appealed this letter to an Administrative Law
Judge (“ALJ”). Id. ¶ 33. The ALJ dismissed her appeal without prejudice because an
initial OSHA investigation—a prerequisite to a hearing before an ALJ—had not been
conducted. Id. ¶ 34. Brisbois then filed an “Amended Complaint” with OSHA on
April 15, 2013; this document was, in fact, her first written complaint. Id. ¶ 35.
The Amended Complaint included six allegations of retaliation. Brisbois alleged
that CP retaliated against her (1) when CP suspended her for five days and restricted
her seniority for one year; (2) when CP did not pay her or reimburse her mileage when
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she attended the disciplinary hearing; (3) when “agents” of CP damaged her car;
(4) when CP refused to allow her to return to work for three days in April 2013;
(5) when CP “initiate[d] a disciplinary investigation” against her on unrelated charges;
and (6) when CP denied her “a per diem meal allow[an]ce of $25.75.” ECF No. 22‐6
at 3‐4. On September 10, 2013, OSHA issued its findings, concluding that “there is no
reasonable cause to believe” that Brisbois “was discriminated against in reprisal for
raising safety concerns.” See ECF No. 22‐5 at 2.
On January 29, 2015, Brisbois notified the ALJ of her intent to terminate the
administrative proceedings and litigate instead in federal court. Compl. ¶ 36; see 49
U.S.C. § 20109(d)(3). Brisbois then filed this action alleging that CP retaliated against
her for raising safety concerns to Heath on July 12, 2012, Compl. ¶ 43, and for
complaining to OSHA in January 2013, see id. ¶ 45.2
II. ANALYSIS
The FRSA prohibits rail carriers from retaliating against employees who engage
in protected activity, which includes reporting a safety concern to a rail carrier and
complaining of retaliation to OSHA. See 49 U.S.C. § 20109(a)‐(b). Brisbois alleges that
2
At the beginning of her complaint, Brisbois says that she is making claims for
both retaliation and discrimination. Compl. ¶ 1. But the allegations in her complaint
and the arguments in her brief were focused entirely on retaliation; no mention is made
of discrimination. If Brisbois intends to bring a separate claim for discrimination, her
claim has not been sufficiently pleaded.
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CP retaliated against her in violation of the FRSA on eight occasions: (1) when CP
suspended her for five days and restricted her seniority for one year; (2) when CP
denied her “several assistant foreman and related positions;” (3) when CP denied her
pay and mileage reimbursements for attending the disciplinary hearing; (4) when
“agents of [CP] damaged [her] car;” (5) when CP refused to let her return to work for
three days in April 2013; (6) when “CP subjected [her] to additional allegations of rule
violations, and conducted an investigation related to the additional allegations;”
(7) when CP “denied [her] meal and other reimbursements;” and (8) when CP
“continued to deny [her] assistant foreman and related positions” after she contacted
OSHA. Compl. ¶¶ 44, 46.
CP brought this motion to dismiss under Rule 12(b)(1) for lack of subject‐matter
jurisdiction and under Rule 12(b)(6) for failure to state a claim. CP argues that the
Court lacks jurisdiction because Brisbois’s claims are subject to mandatory arbitration.
CP further argues that Brisbois’s claims otherwise fail because her complaint to OSHA
was not timely, she did not exhaust her administrative remedies, and her claims were
insufficiently pleaded.
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A. Standard of Review
In ruling on a motion to dismiss for lack of subject‐matter jurisdiction, a court is
free to weigh the evidence and decide whether that evidence establishes that it has
jurisdiction. See Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). In reviewing a
motion to dismiss for failure to state a claim, a court must accept as true all of the
factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s
favor. See Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th Cir. 2008). Although the
factual allegations in the complaint need not be detailed, they must be sufficient to
“raise a right to relief above the speculative level . . . .” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). The complaint must “state a claim to relief that is plausible on its
face.” Id. at 570. In assessing the sufficiency of the complaint, a court may disregard
legal conclusions that are couched as factual allegations. See Ashcroft v. Iqbal, 556 U.S.
662, 678‐79 (2009).
Ordinarily, if the parties present, and the court considers, matters outside of the
pleadings, a Rule 12(b)(6) motion must be treated as a motion for summary judgment.
Fed. R. Civ. P. 12(d). But the court may consider exhibits attached to the complaint and
documents that are necessarily embraced by the complaint without converting the
motion into one for summary judgment. See Mattes v. ABC Plastics, Inc., 323 F.3d 695,
697 n.4 (8th Cir. 2003).
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B. Subject‐Matter Jurisdiction
CP argues that the Court lacks subject‐matter jurisdiction over Brisbois’s claims
because her claims are governed by the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151 et
seq. In order “to promote stability in labor‐management relations,” the RLA mandates
that certain disputes between rail carriers and their employees be arbitrated, not
litigated. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994). If a claim
“requires the interpretation of a [CBA],” then the RLA’s mandatory arbitration
provisions apply and the court lacks subject‐matter jurisdiction. Evermann v. BNSF Ry.
Co., 608 F.3d 364, 367 (8th Cir. 2010) (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486
U.S. 399, 413 (1988)) (discussing RLA preemption of state‐law claims). Arbitration is
mandatory if the CBA is the “only source” of the right asserted, Norris, 512 U.S. at 257‐
58 (quoting Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 324 (1972)), and if the
dispute “may be conclusively resolved by interpreting the existing CBA,” id. at 256
(quoting Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 305 (1989))
(alterations omitted).
By contrast, if a claim seeks to “enforce rights that are independent of the CBA,”
then the RLA does not apply and the courts have jurisdiction. Evermann, 608 F.3d at 367
(quoting Norris, 512 U.S. at 256). “The bare fact that a [CBA] will be consulted . . .
plainly does not require the claim to be extinguished.” Id. (quoting Norris, 512 U.S.
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at 261 n.8) (alterations omitted). Moreover, “purely factual questions about an
employee’s conduct or an employer’s conduct and motives do not require a court to
interpret any term of a [CBA].” Taggart v. Trans World Airlines, Inc., 40 F.3d 269, 273
(8th Cir. 1994) (quoting Norris, 512 U.S. at 261) (internal quotation marks and alterations
omitted).
Here, the Court lacks jurisdiction over four of Brisbois’s claims because they are
dependent on the CBA and thus subject to mandatory arbitration under the RLA. These
include Brisbois’s claims involving (1) the denial of several assistant‐foreman and
related positions, (2) the denial of pay and mileage reimbursements for attending the
disciplinary hearing, (3) the denial of meal and other reimbursements, and (4) the
continued denial of assistant‐foreman and related positions. To know whether CP
retaliated against Brisbois by denying these reimbursements and positions, the Court
would have to determine whether Brisbois was entitled to these reimbursements and
positions; obviously, an employer does not violate the FRSA by denying an employee
something to which she had no right in the first place. And the only source of any
entitlement to these reimbursements and positions would be the CBA. Brisbois has not
identified anything outside of the CBA that would give her the right to be paid for time
at a disciplinary hearing, or to be reimbursed for mileage for attending a disciplinary
hearing, or to be reimbursed for meals or other work‐related expenses, or to be selected
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to fill openings for particular assistant‐foreman positions. It would thus be impossible
for the Court to adjudicate Brisbois’s claims without interpreting the provisions of the
CBA—provisions that, according to Brisbois, entitled her to these reimbursements and
positions and that, according to CP, created no such entitlement. See Evermann, 608 F.3d
at 367 (holding that a claim for reimbursement under a state law prohibiting employers
from withholding pay “by reason of jury duty” was preempted by the RLA because
“not only the existence but also the scope of the entitlement depends on the [CBA]”
(quoting Tice v. Am. Airlines, Inc., 288 F.3d 313, 315 (7th Cir. 2002) (alterations omitted));
see also Schiltz v. Burlington N. R.R., 115 F.3d 1407, 1415 (8th Cir. 1997) (holding that a
claim involving the location of seniority rights was “inextricably intertwined with the
language contained in the CBA” and was preempted by the RLA).
The remaining four claims in Brisbois’s complaint appear to be independent of
the CBA and thus not subject to mandatory arbitration under the RLA. These include
the claims involving Brisbois’s five‐day suspension and one‐year seniority restriction,
the damage to her car, the refusal to let her return to work for three days in April 2013,
and the additional allegations of rule violations. To resolve these retaliation claims, the
Court will primarily address “purely factual questions” about Brisbois’s conduct and
CP’s motivations. Taggart, 40 F.3d at 273. Essentially, the Court will have to determine
what Brisbois did and why CP suspended her, restricted her seniority, (allegedly)
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damaged her car, refused to let her return to work in April 2013, and accused her of
additional rule violations. See Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014)
(discussing the “contributing factor” element of a prima facie case of retaliation under
the FRSA). In the course of making these determinations, the Court may have to
consult the CBA; after all, in a unionized workplace, just about everything is covered by
a CBA. But it does not appear that the Court will be called upon to interpret any
contested provision of the CBA. Moreover, the CBA is not the source (or at least not the
only source) of Brisbois’s right not to have her car damaged or to be suspended,
restricted, barred from work, or accused of rule violations in retaliation for engaging in
conduct protected by the FRSA. See Taggart, 40 F.3d at 274 (“Nor do we think that
resolution of [employee’s] state law [handicap discrimination] claim requires a
determination whether the termination was justified by the [CBA].”).
C. Timeliness
The FRSA requires an employee alleging retaliation to file a complaint with
OSHA within 180 days of the employer’s alleged retaliatory act. 49 U.S.C.
§ 20109(d)(2)(A)(ii). CP argues that Brisbois’s claims are time‐barred because her
written complaint (which Brisbois labeled as an “Amended Complaint”) was not filed
until April 15, 2013, which was after the 180‐day limit expired. Brisbois disagrees and
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contends that she filed a complaint with OSHA by phone on January 11, 2013, which
was within the 180‐day limitations period. See Compl. ¶ 27.
There is no dispute that Brisbois contacted OSHA by phone on January 11, 2013
to complain about alleged retaliation by CP. CP insists, though, that Brisbois’s phone
call does not qualify as a filed complaint because OSHA mistakenly told her that her
complaint was untimely, mistakenly believed that she no longer wanted to pursue the
complaint, and mistakenly failed to reduce Brisbois’s complaint to writing as required
by 29 C.F.R. § 1982.103(b) (“Oral complaints will be reduced to writing by OSHA.”).3
This hardly seems fair—and it is not the law. The governing regulations are clear
that complaints may be filed with OSHA over the phone. See 29 C.F.R. § 1982.103(b).
When an employee files an oral complaint, “[t]he date of the . . . telephone call . . . will
be considered the date of filing.” 29 C.F.R. § 1982.103(d). Brisbois’s oral complaint on
January 11, 2013, was within 180 days of the earliest alleged act of retaliation (the five‐
day suspension and one‐year seniority restriction imposed on August 30, 2012).4 The
3
An administrative tangle then ensued: OSHA sent a letter to Brisbois
summarizing its (mistaken) conclusions from the phone conversation; Brisbois appealed
the letter to the ALJ and requested a hearing; the ALJ dismissed her appeal without
prejudice because OSHA had not conducted an investigation (because it had mistakenly
concluded that Brisbois did not want to pursue her complaint); and OSHA finally
treated Brisbois’s initial phone call as the date of filing and conducted an investigation,
which resulted in a finding that CP had not retaliated against Brisbois.
4
The 180‐day limitation runs from the date of CP’s allegedly retaliatory act—i.e.,
(continued...)
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fact that OSHA may have violated its own regulations by not reducing Brisbois’s
complaint to writing does not change the fact that Brisbois filed a complaint on
January 11, 2013. Her complaint was timely.
D. Exhaustion
The FRSA requires that, before an employee can sue her employer for a violation
of the FRSA, the employee must exhaust her administrative remedies by filing a
complaint with OSHA. See 49 U.S.C. § 20109(d). The purpose of this exhaustion
requirement is to give OSHA the first opportunity to investigate and resolve the claim.
See Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005) (discussing the purpose of
exhausting discrimination claims under the Age Discrimination in Employment Act).
Separate and distinct incidents of retaliation that were not alleged in an
administrative complaint are not deemed to be exhausted, see Tart v. Hill Behan Lumber
Co., 31 F.3d 668, 673 (8th Cir. 1994); however, “[t]he exhaustion requirement may be
satisfied if the civil claim grows out of or is like or reasonably related to the substance of
the allegations in the administrative charge,” Fanning v. Potter, 614 F.3d 845, 851‐52
(8th Cir. 2010) (internal quotation marks and citation omitted). Compare Parisi, 400 F.3d
4
(...continued)
the date it violated the FRSA. See 29 C.F.R. § 1982.103(d) (explaining that the time for
filing a complaint is “[w]ithin 180 days after an alleged violation of . . . FRSA” (emphasis
added)). Here, the date of the earliest alleged violation of the FRSA is the date that
Brisbois was suspended and her seniority restricted—not the date that Brisbois engaged
in protected activity, as CP appears to argue. See Def.’s Br. 20.
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at 586 (holding that new refusal‐to‐rehire claims were “discrete employment actions”
not reasonably related to the refusal‐to‐rehire claims in the administrative complaint),
and Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222‐23 (8th Cir. 1994) (holding
that a race‐discrimination claim was not reasonably related to the “highly specific”
administrative complaint of retaliation), with Wedow v. City of Kansas City, Mo., 442 F.3d
661, 673‐74 (8th Cir. 2006) (holding that later claims of retaliation were reasonably
related to the administrative complaint alleging “ongoing and continuing” retaliation).
Although “administrative complaints are interpreted liberally,” Tart, 31 F.3d at 671, the
scope of a court action “can be only as broad as the scope of any investigation that
reasonably could have been expected to result from the initial charge of
discrimination,” Fanning, 614 F.3d at 852 (internal quotation marks and citation
omitted).
CP argues that three of Brisbois’s claims must be dismissed because she failed to
exhaust her administrative remedies by first presenting these claims to OSHA. These
include Brisbois’s claims for: (1) the denial of “other reimbursements,” (2) the denial of
several assistant‐foreman and related positions, and (3) the continued denial of
assistant‐foreman and related positions.5 The Court agrees that, because these claims
5
The Court has already held that it does not have jurisdiction over these claims
because they are subject to mandatory arbitration under the RLA. For the sake of
completeness, however, the Court will also address Brisbois’s failure to exhaust her
(continued...)
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were not included in Brisbois’s administrative complaint and are not “reasonably
related” to the claims that were included in that complaint, Brisbois failed to exhaust
her administrative remedies.
Brisbois’s administrative complaint detailed discrete and highly specific
incidents of alleged retaliation. For example, she alleged that “[o]n or about
September 17, 2012,” she was informed that “she would be paid for straight time for
attending the August 17, 2012 disciplinary hearing, instead of the normal overtime,”
and that “she would not receive the normal compensation for her mileage to attend the
hearing.” Am. Compl. ¶ 6. She also alleged that “[o]n or about April 5, 2013,” she was
denied “a per diem meal allow[an]ce of $25.75.” Id. ¶ 11. There is no hint in Brisbois’s
administrative complaint that she is accusing CP of retaliating against her by denying
her any assistant‐foreman or related position, and thus an OSHA investigator would
have had no reason to look into that matter. See Fanning, 614 F.3d at 852.
Brisbois argues that her new claims are not new, but rather present “more
particularized details and allegations.” Pl.’s Resp. 23. The Court disagrees. Brisbois’s
claim in this lawsuit for “other reimbursements” is less, not more, “particularized” than
the very specific claims for pay, meal, and mileage reimbursements listed in her
administrative complaint. And, as just noted, Brisbois’s administrative complaint said
5
(...continued)
administrative remedies.
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nothing about being denied an assistant‐foreman or related position in retaliation for
her protected conduct; when she made that allegation in this lawsuit, she was making a
new allegation, not a more particularized allegation. See Parisi, 400 F.3d at 586 (“[I]t is
not reasonable to expect the EEOC to look for and investigate such [discrete] adverse
employment actions if they are nowhere mentioned in the administrative charge.”).
Brisbois points out that her administrative complaint did accuse CP of retaliating
against her in August 2012 when it restricted her seniority as a foreman for one year.
See Compl. ¶ 23. That is true, and to the extent that Brisbois is complaining in this
lawsuit about losing “assistant foreman and related positions” because of the one‐year
restriction on her seniority, she has exhausted her administrative remedies. But the
Court understands Brisbois to be alleging that, during the year that her seniority was
restricted, CP denied her assistant‐foreman positions to which she was entitled despite
having her seniority as a foreman restricted—and to be further alleging that CP
continued to deny her assistant‐foreman and related positions after the restriction on
her seniority had ended. See id. ¶ 24 (“Subsequently, Defendant denied Plaintiff several
assistant foreman and related positions that she was qualified for, even after her seniority
restriction ended.” (emphasis added)). Brisbois did not reasonably put OSHA (or CP) on
notice that Brisbois was accusing CP of retaliating by denying her these positions;
indeed, at the time that she filed her complaints (in January and April 2013), she was
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still on restriction, and thus she could not possibly have included in her complaints any
claim about the post‐restriction denial of positions.
In sum, Brisbois failed to exhaust her claims that CP retaliated against her by
denying “other reimbursements,” by denying several assistant‐foreman and related
positions, and by continuing to deny assistant‐foreman and related positions. If these
claims had not already been dismissed for lack of jurisdiction, the Court would dismiss
them for failure to exhaust administrative remedies.
E. Failure to State a Claim
To this point, the Court has dismissed three of Brisbois’s claims—her claims
regarding the denial of “other reimbursements,” the denial of assistant‐foreman and
related positions, and the continued denial of assistant‐foreman and related positions—
both because those claims must be arbitrated under the RLA and because Brisbois failed
to exhaust her administrative remedies. The Court has dismissed another of Brisbois’s
claims—her claim regarding the denial of pay, mileage, and meal reimbursements—
because that claim must be arbitrated under the RLA. That leaves four claims:
Brisbois’s claims regarding (1) the five‐day suspension and one‐year restriction of
seniority rights; (2) the damage to her car; (3) the refusal to allow her to return to work
for three days in April 2013; and (4) the additional allegations of rule violations and
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subsequent disciplinary hearing. CP argues that Brisbois has not sufficiently pleaded a
prima facie case of retaliation as to the latter three claims.
To establish a prima facie case of retaliation under the FRSA, Brisbois must show:
(1) that she engaged in protected activity; (2) that CP knew that she had engaged in
protected activity; (3) that she suffered an adverse employment action; and (4) that “the
circumstances raise an inference that the protected activity was a contributing factor in
the adverse action.” Kuduk v. BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir. 2014).
Brisbois claims that CP retaliated against her when it damaged her car. Brisbois
alleges that her “car was damaged . . . in a parking area with limited access and no real
reason for non‐railroad employees to be.” Compl. ¶ 26. She alleges that “[u]pon
information and belief, agents acting on behalf of [CP] caused the damage to [her] car.”
Id. ¶ 26; see also id. ¶ 44. These allegations are sufficient—if barely—to plausibly plead a
claim of retaliation under the FRSA and to give CP fair notice of the claim against it. See
Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a probability
requirement . . . .” (internal quotation marks omitted)); Twombly, 550 U.S. at 556 (“[A]
well‐pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.” (internal
quotation marks omitted)).6
6
CP relies on documents that were neither attached to nor necessarily embraced
(continued...)
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The same is true for Brisbois’s claim that CP retaliated against her when it
refused to allow her to return to work for three days in April 2013. Brisbois alleges that
in retaliation for her contacting OSHA in January 2013, CP “refused to permit [her] to
return to work on April 2 through April 4, 2013, despite that [she] had medical
clearance to return from a brief absence.” Compl. ¶ 28; see also id. ¶ 46. Again, Brisbois
has plausibly alleged a prima facie case of retaliation and given CP fair notice of the
claim against it.7
6
(...continued)
by the complaint—such as a police report—and argues, in essence, that in light of these
documents it is not “plausible” to believe that CP had anything to do with the damage
to Brisbois’s car. But the Court may not consider “matters outside the pleadings,”
unless it wants to treat CP’s motion to dismiss under Rule 12(b)(6) as a motion for
summary judgment under Rule 56. See Fed. R. Civ. P. 12(d).
The Court does not want to treat CP’s motion as a summary‐judgment motion—
nor, as a general matter, does the Court want to hear summary‐judgment motions until
discovery has closed. Although it is true that “documents ‘necessarily embraced by the
complaint’ are not matters outside the pleading,” Enervations, Inc. v. Minn. Mining &
Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004), there is a difference between a document
being relevant to an allegation in a complaint and a document being necessarily embraced
by a complaint. The documents relied on by CP fall into the former category.
7
CP does not seriously argue otherwise, but again relies on documents that were
neither attached to nor necessarily embraced by the complaint and argues that in light
of these documents, Brisbois’s claim is not “plausible.” The Court reminds CP that
Twombly and Iqbal focus on the allegations in the complaint and ask whether, on their
face, those allegations make out a plausible claim. Twombly and Iqbal should not be
used as an excuse to bring two rounds of summary‐judgment motions—one de facto,
one de jure—in every case.
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Finally, Brisbois claims that CP retaliated against her when it “subjected [her] to
additional allegations of rule violations, and conducted an investigation related to the
additional allegations.” Compl. ¶¶ 29, 46. Brisbois was not actually disciplined in
connection with these alleged violations. See Pl.’s Resp. 26. She argues, though, that
merely being accused of violating workplace rules—and having to address those
accusations at a disciplinary hearing—is an “adverse employment action” for purposes
of the FRSA. This is by no means a frivolous argument, but ultimately the Court
disagrees.
The FRSA provides that “[a] railroad carrier . . . shall not discharge, demote,
suspend, reprimand, or in any other way discriminate against, including but not limited
to intimidating, threatening, restraining, coercing, blacklisting, or disciplining an
employee for [engaging in protected conduct].” 29 C.F.R. § 1982.102(b)(2)(i). The courts
characterize these as “adverse employment actions”—the same term used in retaliation
cases brought under Title VII and other federal statutes. See, e.g., AuBuchon v. Geithner,
743 F.3d 638, 641 (8th Cir. 2014) (“To prove a prima facie case of unlawful retaliation
[under Title VII] employees must demonstrate that . . . the employer took adverse
employment action against them . . . .”).
Under the anti‐retaliation provisions of Title VII, an “adverse employment
action” is “action that ‘might have dissuaded a reasonable worker from [engaging in
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protected activity under Title VII].’” AuBuchon, 743 F.3d at 643‐44 (quoting Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)); see also Thompson v. N. Am.
Stainless, LP, 562 U.S. 170, 173 (2011) (“. . . Title VII’s antiretaliation provision must be
construed to cover a broad range of employer conduct.”). Under this standard, the
adverse employment action must be “material, not trivial” and “the retaliation must
produce some injury or harm.” AuBuchon, 743 F.3d at 644 (internal quotation marks
omitted) (holding that there was no adverse action where the employee’s supervisor
made “reckless allegations of sexual harassment” against the employee, but the
employee was never threatened or disciplined). But see, e.g., Doucet v. Univ. of
Cincinnati, No. 1:05CV148, 2006 WL 2044955, at *22 n.19 (S.D. Ohio July 19, 2006) (“The
initiation of a formal disciplinary investigation—even one that does not result in formal
discipline—would satisfy this standard [from Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)].”), aff’d, No. 06‐4118, 2007 WL 2445993 (6th Cir. Aug. 28, 2007)
(unpublished).
Brisbois argues that a broader range of negative consequences should qualify as
adverse employment actions under the FRSA than under Title VII because, as a general
matter, the FRSA “provides greater employee protection and, thus, prohibits more
employer conduct than Title VII.”8 Pl.’s Resp. 26. But Brisbois has not explained what
8
For example, the FRSA requires that protected activity merely be a “contributing
(continued...)
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this less demanding standard is (or should be), nor has she cited any case in which an
employer was found liable for retaliation under the FRSA for taking an action that
would not have “dissuaded a reasonable worker from [engaging in protected activity].”
AuBuchon, 743 F.3d at 643‐44.
Brisbois points to two district‐court cases in support of her argument that an
employee has suffered an adverse employment action when she has been accused of
violating a rule, even if she is later exonerated in a disciplinary hearing. But these cases
are distinguishable. The first case, Blackorby v. BNSF Railway Company, No. 13‐CV‐
00908, 2015 WL 58601 (W.D. Mo. Jan. 5, 2015), denied summary judgment for the rail
carrier where the employee was investigated and suffered a “30 day record suspension
and . . . loss in pay for time spent in the investigation hearing.” Id. at *3. Here, Brisbois
was not disciplined, and there are no allegations that she lost pay—or anything
else—due to the investigation. Second, the court in Almendarez v. BNSF Railway
Company, No. C13‐0086, 2014 WL 931530 (W.D. Wash. Mar. 10, 2014), denied summary
judgment for the employees where the employees—a “gang” assigned to work on a
construction project—alleged that the carrier had explicitly threatened that “the gang
8
(...continued)
factor” to the adverse employment action, whereas Title VII requires a “causal
connection” between the protected activity and the adverse employment action. See
Kuduk, 768 F.3d at 791 (noting that the “contributing factor” causation standard under
the FRSA is more lenient).
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would be abolished” if any additional injuries to gang members were reported, though
nothing resulted from the threat. Id. at *1, 5‐6. The Court is not certain that Almendarez
was correctly decided, but, in any event, Brisbois did not experience the kind of explicit
threat that was at issue in Almendarez. True, any investigation of a suspected rule
violation carries an implicit threat that, if the employee is found to have violated the
rule, she might be disciplined. But that is a far cry from the rail carrier explicitly
warning an employee that, if she engages in protected activity, the rail carrier will, in
fact, take action against her.
To hold that a rail worker suffers an adverse employment action any time a rail
carrier attempts to determine whether she has violated a rule—typically by following
an investigatory process mandated under a CBA—would have major implications for
labor relations in the rail industry. In the absence of persuasive authority suggesting
that an employee who has not been disciplined can nevertheless recover for retaliation
under the FRSA because she was accused of violating a workplace rule, the Court is
unwilling to stretch the FRSA so far. The Court therefore dismisses Brisbois’s claim that
CP retaliated against her by accusing her—and later exonerating her—of additional rule
violations.
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ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT defendant’s motion to dismiss [ECF No. 10] is
GRANTED IN PART AND DENIED IN PART as follows:
1.
Defendant’s motion to dismiss under Fed. R. Civ. P. 12(b)(1) is GRANTED
as to plaintiff’s claims for:
a.
the denial of several assistant‐foreman and related positions;
b.
the denial of pay and mileage reimbursements;
c.
the denial of meal and other reimbursements; and
d.
the continued denial of assistant‐foreman and related positions.
Those claims are DISMISSED WITHOUT PREJUDICE.
2.
Defendant’s motion to dismiss under Fed. R. Civ. P. 12(b)(6) is GRANTED
as to plaintiff’s claim for the additional allegations of rule violations and
subsequent disciplinary hearing. That claim is DISMISSED WITH
PREJUDICE AND ON THE MERITS.
2.
Defendant’s motion to dismiss is DENIED as to plaintiff’s claims for:
a.
the five‐day suspension and one‐year seniority restriction;
b.
the damage to plaintiff’s car; and
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c.
the refusal to allow plaintiff to return to work for three days in
April 2013.
Dated: August 21, 2015
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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