Welch v. Union Pacific Railroad Company

Filing 14

ORDER AND OPINION GRANTING DEFENDANT'S MOTION TO DISMISS, 5 . Signed on 8/4/16 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SCOTT WELCH,

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Plaintiff,
vs.
UNION PACIFIC RAILROAD
COMPANY,
Defendant.

Case No. 16-00431-CV-W-ODS

ORDER AND OPINION GRANTING DEFENDANT’S MOTION TO DISMISS
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.

I.

BACKGROUND

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.

II.

STANDARD

The liberal pleading standard created by the Federal Rules of Civil Procedure
requires Aa 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)). ASpecific 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 Amust 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.,

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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) (finding administrative
complaints are matters within the public record and can be considered with regard to a
motion to dismiss); Furnari v. Allenwood Fed. Corr. Inst., 218 F.3d 250, 255-56 (3d Cir.
2000) (stating courts may take judicial notice of an administrative agency decision).

III.

DISCUSSION

A. FRSA Election of Remedies Provision
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).

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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) (concluding “[a] railroad employee does
not ‘seek protection’ under the RLA within the plain meaning of § 20109(f) by invoking
RLA-mandated arbitration when pursuing a grievance under a collective bargaining
agreement.”); Grimes v. BNSF Ry. Co., 746 F.3d 184, 191 (5th Cir. 2014) (finding the
election of remedies provision did not bar the plaintiff’s suit even though he sought
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protection under the RLA); Reed v. Norfolk S. Ry. Co., 740 F.3d 420, 423-24 (7th Cir.
2014) (citations omitted) (finding 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) (noting the Eighth Circuit has not evaluated the RLA under the
FRSA election of remedies provision, and finding the provision is not triggered by
arbitrating under the RLA).
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 complainant and party alleged to have
violated the law of the DOL’s findings. 49 U.S.C. § 20109(d)(2) (stating enforcement
actions filed with the DOL are governed by 49 U.S.C. § 42121(b)); 49 U.S.C. §
42121(b)(2). If a person is aggrieved by the DOL’s decision, he or she may seek review
in the United States court of appeals for the circuit in which the violation occurred. 42
U.S.C. § 20109(d)(4). If the DOL fails to issue its final decision, “the employee may
bring an original action at law or equity for a de novo review in the appropriate district
court....” Id. The RLA does not provide investigative procedures similar to the DOL.
Although not faced with the particular issue, the Seventh Circuit opined as to
what would have happened if a plaintiff had sought relief under the OSHA (as Welch did
here), rather than seeking relief under the RLA (as that plaintiff did). “[I]f Reed brought
a claim under the Occupational Safety and Health Act, which extends to whistleblower
protection to employees [who] file a workplace safety complaint or take other protected
action, the election-of-remedies provision would bar a successive FRSA claim.” Reed,
740 F.3d at 425 (noting the RLA does not offer the substantive protection offered by the
FRSA). This is the situation before the Court, and the Court agrees with the Seventh
Circuit.

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Here, Welch elected to file a complaint with the DOL. The DOL found Union
Pacific did not violate the FRSA. That finding prevents Welch from seeking “protection”
for the “same allegedly unlawful act” under “another provision of law.” 49 U.S.C. §
20109(f). The DOL had only 210 days to issue its decision, and its decision was issued
within that timeframe. 42 U.S.C. § 20109(d)(3); Doc. #6-4. Although he was informed
that he could file objections to the DOL’s determination or request a hearing, Welch did
not do so. Id. Additionally, he did not seek review from the Eighth Circuit, as he was
permitted to do so. 42 U.S.C. § 20109(d)(4). By failing to object to the determination,
request a hearing, or appeal the determination, Welch not only elected his remedy but
exhausted that remedy before filing this lawsuit which alleges the same unlawful
conduct for which he sought relief in his DOL Complaint. Compare Doc. #1-1 with Doc.
#6-1, at 4 and Doc. #6-3.
To support his argument that the election of remedies provision does not apply,
Welch relies on a district court case from the Eastern District of California: Gonero v.
Union Pacific Railroad Co., Case No. 09-2009-WBS-JFM, 2009 WL 33778987 (E.D.
Cal. Oct. 19, 2009). But Gonero presents different facts than the case before this Court.
After 290 days passed from the time of filing, the DOL had not issued its determination,
and Gonero withdrew his DOL complaint. Id. at *3, 5. Gonero (like Welch) sought to
vindicate his rights under the FRSA through the DOL, but (unlike Welch) the
administrative process went nowhere. Id. at *5. Gonero, who after more than 210 days
did not receive a decision from the DOL, was permitted to bring an original action at law
in a district court. 49 U.S.C. § 20109(d)(3). Unlike Gonero, the DOL issued its
determination within statutorily required timeframe (210 days) with regard to Welch’s
complaint. As such, Welch elected his remedies and sought protection through that
proceeding. By doing so, the review of DOL’s decision is limited pursuant to the FRSA,
and Welch is not permitted to seek protection for the “same allegedly unlawful act”
under Missouri law. Accordingly, Union Pacific’s motion to dismiss is granted.

B. Res Judicata and Collateral Estoppel
Even if Welch was permitted to seek protection under Missouri law, his Petition
must be dismissed because it is precluded by res judicata and collateral estoppel.
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“Res judicata bars relitigation of a claim if: (1) the prior judgment was rendered by a
court of competent jurisdiction; (2) the prior judgment was a final judgment on the
merits; and (3) the same cause of action and the same parties or their privies were
involved in both cases.” Cardona v. Holder, 754 F.3d 528, 530 (8th Cir. 2014) (quoting
Lane v. Peterson, 899 F.2d 737, 742 (8th Cir. 1990)).1 Collateral estoppel bars
relitigation of an issue if (1) the issue decided in the prior adjudication was identical the
issue presented in this lawsuit; (2) the prior adjudication resulted in a judgment on the
merits; (3) the party against whom estoppel is asserted was a party (or was in privity
with a party) in the prior adjudication; and (4) the party against whom collateral estoppel
is asserted had a full and fair opportunity to litigate the issue in the prior adjudication.
Ideker v. PPG Indus., Inc., 788 F.3d 849, 852-53 (8th Cir. 2015) (quoting Derleth v.
Derleth, 432 S.W.3d 771, 774 (Mo. Ct. App. 2014)).2
“When an administrative agency is acting in a judicial capacity and resolves
disputed issues of fact properly before it which the parties have had an adequate
opportunity to litigate, the courts have not hesitated to apply res judicata to enforce
repose.” See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107 (1991)
(quoting United States v. Utah Constr. & Mining Co., 394 U.S. 394, 422 (1966)); United
States v. Karlen, 645 F.2d 635, 638 (8th Cir. 1981) (citations omitted) (holding the
doctrines of res judicata and collateral estoppel apply to appropriate administrative
actions); Bresnahan v. May Dep’t Stores Co., 726 S.W.2d 327, 329-30 (Mo. banc 1987)
(giving collateral estoppel effect to final decisions of state agencies so long as the
general criteria for applying collateral estoppel are satisfied). Welch’s main argument
for opposing application of res judicata or collateral estoppel is that he did not have an
adequate opportunity to litigate his claims. Doc. #11, at 14-18.

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As it pertains to res judicata, there is no meaningful difference between federal and
Missouri law. See Bannum, Inc. v. City of St. Louis, 195 S.W.3d 541, 544 (Mo. Ct. App.
2006) (citations omitted) (recognizing “Missouri law tracks the Eighth Circuit in defining
the prerequisites for res judicata.”).
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In a diversity case, the Eighth Circuit applies the state substantive law in deciding
whether to apply collateral estoppel. Ideker, 788 F.3d at 852.
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Welch chose to seek relief with the DOL.3 He received the DOL’s determination
that there was “no reasonable cause” to believe Union Pacific violated the FRSA. Doc.
#6-4, at 1. At that time, Welch was informed he had thirty days to file objections and
request a hearing before an administrative law judge. Id. at 2. He was also advised
that “[i]f no objections are filed, these Findings will become final and not subject to court
review.” Id. Notwithstanding these directives, Welch chose to abandon his
administrative complaint. While there is no precedent on the very issue before this
Court, there are two cases that are highly persuasive.
First, the United States District Court for the Western District of Washington
analyzed the applicability of res judicata and collateral estoppel with regard to a
complaint that had been filed with OSHA by an employee pursuant to 49 U.S.C. §
42121(b), which is the same statute that governs the administrative procedure under the
FRSA. Fadaie v. Alaska Airlines, Inc., 293 F. Supp. 2d 1210, 1219 (W.D. Wash. 2003);
49 U.S.C. § 20109(d)(2) (stating enforcement actions filed with the DOL are governed
by 49 U.S.C. § 42121(b)). The district court found Fadaie’s allegations in the lawsuit
and OSHA complaint were identical or could have been raised in the earlier complaint.
Fadaie, 293 F. Supp. 2d at 1218. But Fadaie (as Welch does here) argued he was not
afforded a full and fair opportunity to represent his claims to the agency. Id. at 1219.
The district court found “the procedures governing Mr. Fadaie’s whistleblower
complaint afford ample opportunity to fully present his claims, including avenues of
appeal that provided direct and apparently unique access to the federal appellate
courts.” Id. Fadaie, like Welch, was informed he had the option of seeking a formal
hearing on the merits by an ALJ. Id. The district court noted “proceedings before the
ALJ are adversarial in nature and involve taking evidence, hearing testimony, and
considering the arguments of the parties. The Secretary of Labor then makes his or her
final decision based on the ALJ’s recommendation and can choose from a full range of
remedies when providing relief to the complainant.” Id. Thereafter, any aggrieved party

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The FRSA states an “employee…may seek relief in accordance with the provisions of
this section, with any petition or other request for relief under this section to be initiated
by filing a complaint with the Secretary of Labor.” 49 U.S.C. § 20109(d)(1) (emphasis
added).
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can appeal the Secretary’s decision to the applicable federal court of appeals. Id. (citing
49 U.S.C. § 42121(b)(4)(A)).
Fadaie, similar to Welch, received the determination letter, and although
informed of his options, chose not to follow through with the procedures set forth in the
letter. Id. at 1219-20. The district court noted that Fadaie had an “opportunity to fully
and fairly litigate” his claims; thus, he “cannot now argue that the procedures utilized by
the agency were insufficient when it was Mr. Fadaie’s choice to forego the admittedly
sufficient procedures to which he was entitled.” Id. at 1220. Accordingly, his claims
were barred by res judicata. Id.
The Supreme Court of California addressed a similar issue. In Murray v. Alaska
Airlines, the plaintiff, similar to Welch, received the Secretary of Labor’s preliminary
finding and did not file objections or request a hearing, but he later filed a lawsuit
alleging the same claims. 50 Cal. 4th 860, 868-79 (Cal. 2010). The Court found the
plaintiff was precluded from bringing an action in court for the same allegations. Id. at
868. The Court noted the plaintiff “failed to exercise his absolute statutory right to a
formal de novo hearing of record before an administrative law judge (ALJ), and
consequently, failed to exercise his statutory right to appeal any adverse findings and
decision of the ALJ to the Ninth Circuit.” Id. The Court further found the plaintiff’s
“omissions occurred in the face of clear statutory notice to [the plaintiff] that his forfeiture
of such rights would result in the Secretary’s preliminary factual findings and decision
becoming a final nonappealable order….” Id. That is, the plaintiff had the right to a full
de novo trial-like hearing, but he failed to invoke that right. Id.
Similar to Fadaie and Murray, Welch elected to file a complaint with the DOL.
Once the DOL issued its timely determination, Welch was informed that the DOL’s
decision would become final and not subject to court review unless he submitted
objections or requested a hearing before an ALJ. Doc. #6-4. Contrary to his argument
against application of res judicata and collateral estoppel, Welch had an adequate
opportunity to litigate his claims. He simply chose to forego that opportunity by
abandoning his claim. In consideration of the facts before the Court and in light of the

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applicable legal standards for res judicata and collateral estoppel, the Court finds that
Welch’s claims are also barred by these doctrines.4

IV.

CONCLUSION

For the foregoing reasons, Union Pacific’s motion to dismiss is granted. Union
Pacific’s request for oral argument is denied as moot.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: August 4, 2016

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Because the Court is granting dismissal on the basis of the FRSA election of remedies
provision as well as the application of res judicata and collateral estoppel, it is
unnecessary for the Court to address Union Pacific’s argument that the “adequate
alternative remedy” doctrine applies.
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