FULK et al v. NORFOLK SOUTHERN RAILWAY COMPANY et al

Filing 34

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 08/04/2014, that Defendants' Motion to Dismiss (Doc. 10 ) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to the FELA clai m and DENIED as to the FRSA claim. FURTHER ORDERED that Plaintiffs' potential remedies on the FRSA claim are limited to those specified in 49 U.S.C. § 20109(e)(2). FURTHER that Plaintiffs' motion for leave to file surreply (Doc. 22 ) is DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DANA B. FULK, THE ESTATE OF
JOHN H. FULK III, and JOHN H.
FULK III,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY and NORFOLK SOUTHERN
CORPORATION,
Defendants.

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1:13CV234

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before the court is Defendants’ Motion to Dismiss
(Doc. 10).

Defendants have filed a memorandum (Doc. 11) in

support of their motion, Plaintiffs have filed a response in
opposition (Doc. 20), and Defendants have filed a reply (Doc.

21).1

Defendants’ motion is now ripe for adjudication, and for

the reasons that follow, this court will grant the motion in
part and deny it in part.
I.

BACKGROUND
The following facts are presented in the light most

favorable to Plaintiffs.
678 (2009).

See Ashcroft v. Iqbal, 556 U.S. 662,

Plaintiffs bring suit against Norfolk Southern

Railway Company and Norfolk Southern Corporation (collectively,
“Norfolk Southern” or “Defendants”), its parent company,
alleging violations of the Federal Employers’ Liability Act
(“FELA”), 45 U.S.C. §§ 51-60, and the anti-retaliation section
of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109.2
Norfolk Southern is a common carrier by railroad that is engaged
in interstate commerce.

(Complaint (“Compl.”) (Doc. 1) ¶ 8.)

1

This court will deny Plaintiffs’ Motion for Leave to File
Surreply (Doc. 22). “Generally, courts allow a party to file a
surreply only when fairness dictates based on new arguments
raised in the previous reply.” DiPaulo v. Potter, 733 F. Supp.
2d 666, 670 (M.D.N.C. 2010); see also Olvera-Morales v. Int’l
Labor Mgmt. Corp., 246 F.R.D. 250, 254 (M.D.N.C. 2007)
(“Surreplies are generally disfavored . . . .”). Plaintiffs
have not identified any of the arguments or issues they contend
were raised for the first time in Defendants’ reply, and it
appears to this court that the reply was limited to addressing
issues raised by Plaintiffs in their response brief.
2

Defendant Norfolk Southern Corporation contends that it
cannot be liable under 49 U.S.C. § 20109 because it is a
transportation holding company, not a railroad. (Defs.’ Br. in
Supp. of Mot. to Dismiss (“Defs.’ Br.”) (Doc. 11) at 2 n.1.)
Plaintiffs did not respond to this argument.
-2-

John H. Fulk III (“Mr. Fulk”) worked for Norfolk Southern
as a railroad car inspector at Linwood Yard, North Carolina.
(Id. ¶ 9.)

As an inspector, Mr. Fulk was responsible for many

safety-related functions, including the examination of rail cars
for defects or noncompliance with Federal Railroad
Administration (“FRA”) regulations.

(Id. ¶ 10.)

When

inspectors found a defective or noncompliant car, they were
supposed to place a “bad order” tag on the car.

(Id. ¶ 11.)

Those tags would list the discovered defects and compliance
issues and notify the carmen in the repair shop what repairs
needed to be made.

(Id.)

Tagged cars were placed in “bad

order” status and were not allowed to be put back in use until
the repairs were completed.

(Id.)

Mr. Fulk became extremely bothered by the attitude of
Norfolk Southern management toward FRA regulations.

(Id. ¶ 14.)

The management consistently chose to get trains out on time
rather than comply with regulations.

(Id.)

In addition,

Norfolk Southern management had “bad order” quotas and did not
want inspectors or carmen, including Mr. Fulk, to place tags on
defective cars and cause the “bad order count” to go “up.”

(Id.

¶ 15.)
Norfolk Southern supervisors set a bad order target of
fifty such orders at any one time at Linwood Yard no matter how
-3-

many cars were defective or noncompliant.

(Id. ¶ 16.)

This

fifty-car “shop count” was discussed daily in the workplace.
(Id.)

When the “shop count” was greater than fifty, Norfolk

Southern management told the inspectors that the company did not
“need any more bad order cars.”

(Id.)

Employees who continued

finding bad orders after there were already fifty were targeted
for harassment.

(Id. ¶ 17.)

Norfolk Southern management pressured Mr. Fulk not to bad
order cars, and Mr. Fulk’s bad order tags were routinely removed
before the car had been repaired.

(Id. ¶ 20.)

It was made very

clear to Mr. Fulk that he was expected to limit his bad orders,
which would have required Mr. Fulk to violate FRA regulations
and Norfolk Southern’s own rules.

(Id. ¶ 21.)

Mr. Fulk refused

to follow this order and continued to tag cars that were
defective or noncompliant with FRA regulations.

(Id. ¶ 22.)

Because of his adherence to FRA regulations, Mr. Fulk was
subjected to abusive intimidation, disciplinary threats, and job
threats by Norfolk Southern management.

(Id.)

Although he

reported these acts and omissions, Norfolk Southern never took
action to stop such treatment.

(Id. ¶ 24.)

On January 6, 2011, Norfolk Southern accused Mr. Fulk of
trying to “sabotage” the braking system on one of its trains.
(Id. ¶ 25.)

A formal hearing was scheduled for January 19,
-4-

2011, on charges of “improper performance of duty” and “conduct
unbecoming an employee.”
¶ 26.)

(Id.)

The charges were false. (Id.

Norfolk Southern’s actions were an attempt to terminate

Mr. Fulk because he would not help violate FRA regulations and
to intimidate other employees.

(Id.)

Mr. Fulk reported to work as scheduled on January 13, 2011.
(Id. ¶ 29.)

After signing in, he returned to the employee

parking lot and shot himself in the head with a pistol. (Id.)
He died from the wound. (Id.)
Mr. Fulk had drafted letters to the FRA and the Regional
Director of the Department of Labor’s Occupational Safety and
Health Administration (“OSHA”) before his death to report the
conduct of Norfolk Southern and its supervisors and make a
complaint of retaliation.

(Id. ¶ 27.)

Those letters outlined

various violations of FRA minimum standards.

(Id.)

He fully

intended to send the letters; however, the scheduled hearing
combined with years of harassment and pressure caused Mr. Fulk
to suffer a mental and psychological injury, emotional collapse,
and breakdown.

(Id. ¶ 28.)

A few days after Mr. Fulk’s death, his widow filed a
retaliation complaint with the OSHA Regional Director on behalf
of Mr. Fulk.

(Id. ¶ 30.)

She attached Mr. Fulk’s draft letter.

(Id.)
-5-

Mrs. Fulk also submitted a complaint to the FRA with the
draft letter attached.

(Id. ¶ 31.)

The FRA conducted an

investigation through which it discovered numerous regulatory
violations.

(See id. at ¶¶ 32-36 (describing the investigation

and its results).)

Employees who were interviewed during the

investigation consistently mentioned Mr. Fulk as a target of
Norfolk Southern supervisors; however, no one was willing to
sign a witness statement for fear of retaliation.

(Id. ¶ 33.)

Plaintiffs filed this de novo action after a final
administrative decision on the FRSA claim had not been issued
within 210 days.
II.

See 49 U.S.C. § 20109(d)(3).

LEGAL STANDARD
Defendants move to dismiss Plaintiffs’ FRSA claim pursuant

to Federal Rule of Civil Procedure 12(b)(1) and their FELA claim
pursuant to Rule 12(b)(6).

A Rule 12(b)(1) motion challenges

the court’s subject matter jurisdiction.

When, as here, a

defendant “makes a facial challenge to subject matter
jurisdiction, ‘the plaintiff, in effect, is afforded the same
procedural protection as he would receive under a Rule 12(b)(6)
consideration.’”

Kerns v. United States, 585 F.3d 187, 192 (4th

Cir. 2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.
1982)).

Accordingly, “the facts alleged in the complaint are

taken as true, and the motion must be denied if the complaint
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alleges sufficient facts to invoke subject matter jurisdiction.”
Id.
To survive a Rule 12(b)(6) motion, a plaintiff must allege
“sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”

Iqbal, 556 U.S. at

678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

In order for a claim to be facially plausible, a

plaintiff must “plead[] factual content that allows the court to
draw the reasonable inference that the defendant is liable” and
must demonstrate “more than a sheer possibility that a defendant
has acted unlawfully.”

Id. (citing Twombly, 550 U.S. at 556).

When ruling on a Rule 12(b)(6) motion, a court must accept the
complaint’s factual allegations as true.

Id.

However, “the

tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions,”
and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”

Id.

(citing Twombly, 550 U.S. at 555).
III. ANALYSIS
For the reasons that follow, this court finds that the
motion to dismiss should be granted as to the FELA claim and
denied as to the FRSA claim.

The potential damages available

under the FRSA are outlined in this order.
-7-

A.

FELA Claim

Defendants move to dismiss the FELA claim on three grounds:
(1) the Complaint fails to allege a compensable injury, (2) the
Complaint fails to adequately allege causation, and (3) the
Complaint fails to allege that Defendants had notice of any
mental illness or other propensity of Mr. Fulk to harm himself.
Because this court finds that the Complaint does not allege any
injuries that are compensable under FELA, it does not address
Defendants’ other arguments for dismissal.
As relevant in this case, FELA imposes liability upon an
interstate common carrier by railroad to its employees for
“injury or death resulting in whole or in part from the
negligence of any of the officers, agents, or employees of such
carrier.”

45 U.S.C. § 51.

Although the statute mentions only

negligence, FELA “has been construed to cover some intentional
torts.”

Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S.

557, 562 n.8 (1987); see also Slaughter v. Atl. Coast Line R.R.
Co., 302 F.2d 912, 915-16 (D.C. Cir. 1962) (“[I]t would be
anomalous to disallow recovery for an injury merely because the
harm was intentionally inflicted.”).

A “relaxed standard of

causation applies under FELA,” Consol. Rail Corp. v. Gottshall,
512 U.S. 532, 543 (1994): The “single inquiry” is whether
“negligence of the employer played any part at all in the injury
-8-

or death.” Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 507
(1957); see also CSX Transp., Inc. v. McBride, 564 U.S. ____,
____, 131 S. Ct. 2630, 2638-39 (2011).

The act is primarily

“intended to provide compensation for the injuries and deaths
caused by the physical dangers of railroad work by allowing
employees or their estates to assert damages claims,” Gottshall,
512 U.S. at 555, and is to be “liberally construed . . . to
further Congress’ remedial goal.”

Id. at 543.

Plaintiffs seek compensation for Mr. Fulk’s mental injuries
and suicide that allegedly resulted from the misconduct of
Norfolk Southern managers and supervisors.3

(See Compl. (Doc. 1)

¶ 43 (“[Norfolk Southern] and its management, officers,
supervisors, managers, and other employees in authority
negligently and/or intentionally engaged in harassing and
intimidating conduct . . . .”); id. ¶ 44 (“Mr. Fulk’s workplace
was rendered unsafe and unfit because of such conduct . . . .”);
id. ¶ 46 (“Mr. Fulk’s mental injury and suicide were caused, in
whole or in part, by the negligence and/or intentional conduct
of [Norfolk Southern] and its management, officers, supervisors,
managers, and other employees in authority . . . .”).)

3

The only

FELA claims survive the death of injured employees, 45
U.S.C. § 59, and the act permits wrongful death claims. Id.
U.S.C. § 51; see also Mich. Cent. R.R. Co. v. Vreeland, 227 U.S.
59, 68-69 (1913).
-9-

physical injury alleged is Mr. Fulk’s self-inflicted gunshot
wound.
This court first finds that Plaintiffs’ FELA claim is based
on mental and emotional injuries that are potentially
compensable only if they resulted from a physical impact or an
imminent threat of physical impact.4

In Consolidated Rail Corp.

v. Gottshall, the Supreme Court held that the zone of danger
test applies to FELA claims for negligently inflicted emotional
injuries.

512 U.S. at 554.

Under that test, railroad employees

“will be able to recover for injuries – physical and emotional –
caused by the negligent conduct of their employers that
threatens them imminently with physical impact.”

Id. at 556.

The Court adopted the zone of danger test because it “best
harmonizes” FELA’s primary focus on physical injury and the
statute’s use of the word “‘injury,’ which may encompass both
physical and emotional injury.”

Id.

Although Gottshall did not address the appropriate test for
claims alleging intentional infliction of emotional distress,
4

Because this court finds that the alleged injuries are
compensable only if they satisfy the zone of danger test, it
does not address Plaintiffs’ argument that this court should
look to the Restatement (Second) of Torts § 455 (1965) to
determine whether Mr. Fulk’s suicide is compensable under FELA.
In addition, that section, which addresses liability for
negligent conduct, is in some tension with Gottshall, which
requires plaintiffs to satisfy the zone of danger test for
negligent infliction of emotional distress claims.
-10-

id. at 541 n.2, the opinion “focused on whether emotional
injuries were generally compensable under FELA, rather than upon
the specific cause of action.” Smith v. Union Pac. R.R. Co., 236
F.3d 1168, 1171 (10th Cir. 2000).

Federal courts have

consistently applied the zone of danger test to all stand-alone
emotional distress claims.

See, e.g., Goodrich v. Long Island

Rail Road Co., 654 F.3d 190, 198 (2nd Cir. 2011) (“Neither
FELA’s terms nor any court decision of which we are aware
supports expanding the injuries for which recovery is available
under FELA to include those occurring outside a zone of physical
danger.”); Gannon v. Nat’l R.R. Passenger Corp., 422 F. Supp. 2d
504, 513 (E.D. Pa. 2006); see also Norfolk & W. Ry. Co. v.
Ayers, 538 U.S. 135, 147 (2003) (recognizing two categories of
FELA claims: “[s]tand-alone emotional distress claims not
provoked by any physical injury, for which recovery is sharply
circumscribed by the zone-of-danger test; and emotional distress
claims brought on by a physical injury, for which pain and
suffering recovery is permitted”); Higgins v. Metro-North R.R.
Co., 318 F.3d 422, 431 (2nd Cir. 2003) (Sotomayor, J.,
concurring) (“I would hold that the zone of danger test applies
to plaintiff’s intentional infliction of emotional distress
claim . . . .”); Smith, 236 F.3d at 1171; Lancaster v. Norfolk &
W. Ry. Co., 773 F.2d 807, 813 (7th Cir. 1985) (“FELA does not
-11-

create a cause of action for tortious harms brought about by
acts that lack any physical contact or threat of physical
contact – an act such as telling a man he’s fired . . . .”).
In Goodrich v. Long Island Rail Road Co., which this court
finds persuasive, the Second Circuit recognized that “the common
law does not currently impose a zone of danger test on
[intentional infliction of emotional distress] claims.”5
F.3d at 196.

654

Assessing the intentional infliction of emotional

distress tort “in the appropriate historical context,” however,
the court determined that it was “in a nascent stage at the time
of FELA’s passage.”6

Id. at 197; see also id. at 197-99

(discussing the history of the tort).

Having factored in both

FELA’s primary concern with physical harm and the state of the
law at the time it was enacted, the Second Circuit concluded
that intentional infliction of emotional distress is a “tort

5

The Restatement (Third) of Torts defines the intentional
infliction of emotional distress tort in these terms: “An actor
who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional harm to another is subject to
liability for that emotional harm and, if the emotional harm
causes bodily harm, also for the bodily harm.” Restatement
(Third) of Torts § 46 (2012); see also Restatement (Second) of
Torts § 46(1) (1965). Defendants have not argued that the
Complaint fails to adequately allege extreme and outrageous
conduct.
6

Courts have been instructed to consider FELA questions “in
the appropriate historical context.” See Gottshall, 512 U.S. at
555; Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330, 337 (1988).
-12-

unbounded by any connection to the dangers originally prompting
Congress to protect railroad workers through enactment of FELA.”
Id. at 198-99.

Accordingly, the court found no reason “why the

same definition of injury should not apply in the [negligent
infliction of emotional distress] and [intentional infliction of
emotional distress] contexts.”

Id. at 199.

Having found that the zone of danger test applies to
Plaintiffs’ FELA claim, this court finds that the Complaint does
not satisfy that test.

Plaintiffs raise two arguments against

this conclusion: (1) “Mr. Fulk absolutely suffered from a
physical impact – a gunshot to the head”; and (2) “not only was
Mr. Fulk at risk of injury and death from suicide because of
[Defendants’] oppressive and targeted wrongful conduct, he was
also at risk of injury and death from defective railcars just
like everyone else.”

(Pls.’ Resp. and Br. Opposing Mot. to

Dismiss (“Pls.’ Resp.”) (Doc. 20) at 30.)7
Intentional harassment and wrongful adverse employment
actions, standing alone, do not satisfy the zone of danger test.
In Gallimore-Wright v. Long Island R.R. Co., the plaintiff
alleged that the defendant railroad had “intentionally inflicted
7

All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.

-13-

emotional distress upon her by undertaking a deliberate campaign
to subject her to discipline and fire her in retaliation for her
prior lawsuit.”

354 F. Supp. 2d 478, 487 (S.D.N.Y. 2005).

Despite acknowledging that the alleged conduct was
“[r]eprehensible” if true, the court dismissed the FELA claim
because there was “no suggestion that it resulted in any
physical impact on plaintiff or brought her within the zone of
danger of such an impact.”

Id.; see also Roberts v. CSX

Transp., Inc., Cause No. 1:06-CV-00169, 2006 WL 1763640, at *3
(N.D. Ind. June 26, 2006) (finding that injuries “stemming from
nonphysical contact, such as the alleged supervisor harassment,
the arguably flawed disciplinary proceedings, or [the
plaintiff’s] wrongful firing,” were not compensable under FELA
as a matter of law).
In addition, even severe mental or emotional injuries that
lead to physical manifestations are insufficient, on their own,
to bring a claim within FELA.8

See, e.g., Gottshall, 512 U.S. at

544 (“The injury we deal with here is mental or emotional harm
(such as fright or anxiety) that is caused by the negligence of
another and that is not directly brought about by a physical

8

Because the zone of danger test applies to FELA cases
based on the type of injury, not the form of action, cases
addressing negligently inflicted emotional injuries are
instructive here.
-14-

injury, but that may manifest itself in physical symptoms.”);
Smith, 236 F.3d at 1174 (“[The plaintiff’s] disrupted sleep
cycle, and resulting depression and other physical maladies,
constituted an emotional injury to which [Gottshall’s] zone of
danger test applies.”); Crown v. Union Pac. R.R. Co., 162 F.3d
984, 986 (8th Cir. 1998) (finding that a plaintiff’s injuries
were not compensable under FELA despite “his evidence of
emotional and physical injuries”); Szymanski v. Columbia Transp.
Co., 154 F.3d 591, 594 (6th Cir. 1998) (finding, under the Jones
Act, that a heart attack allegedly arising from job-related
stress was not a physical injury and distinguishing “the
‘physical impact’ that is a prerequisite for liability (meaning
either actual impact by a physical object or being in the zone
of danger for such an impact)” from “any physical manifestations
of an emotional injury that may have occurred” (footnote
omitted)).
These cases are supported by the Supreme Court’s analysis
in Gottshall.

Both plaintiffs in that case demonstrated

objective manifestations of their emotional distress.

One

plaintiff experienced “insomnia, headaches, depression, and
weight loss,” followed by a “nervous breakdown.”
U.S. at 539.

Gottshall, 512

The other experienced “nausea, insomnia, cold

sweats, and repetitive nightmares concerning [a crew member’s
-15-

on-the-job] death,” in addition to weight loss, anxiety, and
suicidal preoccupations.

Id. at 536-37.

Despite their

severity, these emotional injuries were not compensable under
FELA.
Here, the only physical injury alleged is Mr. Fulk’s selfinflicted gunshot wound.9

This court finds that a self-inflicted

injury under the circumstances described in this case cannot be
used to circumvent the zone of danger test.10

Furthermore, as

noted above, intentional harassment and wrongful adverse
employment actions are insufficient, on their own, to satisfy
the zone of danger test.

Finally, although Mr. Fulk may have

been “at risk of injury and death from defective railcars just
like everyone else,” (Pls.’ Resp. (Doc. 20) at 30), the
Complaint does not allege that he was ever “threaten[ed] . . .

9

Under Plaintiffs’ argument that the gunshot wound
satisfies the impact requirement, had Mr. Fulk committed suicide
in some other manner, he would not meet the zone of danger test.
Thus, the distinguishing factor becomes solely the manner of the
commission of the suicide. This court finds that construing the
Gottshall case and the impact requirement to reach that type of
result is not logical.
10

This court does not rule out the possibility that suicide
may be compensable under FELA under certain circumstances. For
example, had Mr. Fulk been “run-over by a rail car” (Pls.’ Resp.
(Doc. 20) at 30) and later committed suicide, there would have
been a physical impact attributable to Norfolk Southern and this
court might view this case differently.
-16-

imminently with physical impact.”

See Gottshall, 512 U.S. at

556.
Accordingly, this court finds that the Complaint fails to
allege an injury that is compensable under FELA.
The parties have directed this court’s attention to five
cases which address whether suicide may be a compensable injury
under FELA.

See Delise v. Metro-North R.R. Co., 646 F. Supp. 2d

288 (D. Conn. 2009); Halko v. N.J. Transit Rail Operations,
Inc., 677 F. Supp. 135, 142 (S.D.N.Y. 1987) (“[S]uicide is
actionable under the FELA when the suicide is committed in a
state of insanity.”); Barilla v. Atchison, Topeka & Santa Fe Ry.
Co., 635 F. Supp. 1057, 1059 (D. Ariz. 1986) (“The Court . . .
concludes as a matter of law that suicide by a railroad employee
is not a proximate cause cognizable in an FELA action nor
intended to be remedied by the FELA.”); Marazzato v. Burlington
N. R.R. Co., 817 P.2d 672 (Mont. 1991) (holding that suicide
must at least be reasonably foreseeable); Nelson v. Seaboard
Coast Line R.R. Co., 398 So. 2d 980, 982 (Fla. Dist. Ct. App.
1981) (“[I]n order for the employer to be liable for the suicide
of the deceased, it must be shown that the negligent act of the
employer drove the deceased beyond the point where he could
rationally decide against killing himself.”).

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Only Delise was decided after Gottshall, and this court
does not find that opinion persuasive.
address whether Gottshall should apply.

First, it does not
Second, it appears that

the defendant-railroad only argued that the decedent was not an
employee at the time he committed suicide and that his suicide
was not foreseeable.

Delise, 646 F. Supp. 2d at 291.

Regardless, the opinion offers very little in the way of
specific facts and, in the absence of any discussion about
Gottshall, the opinion is not persuasive as to this case.
Furthermore, each of the cases relied upon by Plaintiffs –
Delise,11 Halko,12 and Nelson – contain an “uncontrollable
impulse” standard not applied in Gottshall. The “irresistible
impulse” inquiry acknowledges “the general rule that suicide is
an intervening cause eliminating liability on the part of a

11

The Delise court relied upon Norfolk & Western Ry., 538
U.S. 135, which addressed emotional injury associated with
asbestosis, a cognizable physical injury under FELA. Id. at 148.
The court concluded that “genuine issues exist as to whether
negligent supervision by Metro-North played a part in Mr.
Delise’s death, and as to whether Mr. Delise’s suicide was the
result of an “‘uncontrollable impulse.’” Delise, 646 F. Supp.
2d at 291. Thus, the district court did not consider whether
the type of injuries alleged in the complaint were compensable
under FELA.
12

Halko did not rely entirely upon the “uncontrollable
impulse” standard, but also recognized a “causal connection”
standard. Nevertheless, the Halko court concluded the claim
survived under either standard, including as an “uncontrollable
impulse.”
-18-

wrongdoer,” but asks whether the “‘decedent was delirious or
insane and either incapable of realizing the nature of his act
or unable to resist an impulse to commit it.’” Epelbaum v. Elf
Atochem, N. Am., Inc., 40 F. Supp. 2d 429, 431 (E.D. Ky. 1999)
(citing Watters v. TSR, Inc., 904 F.2d 378, 384 (6th Cir.
1990)). As stated by the Nelson court, “in order for the
employer to be liable for the suicide of the deceased, it must
be shown that the negligent act of the employer drove the
deceased beyond the point where he could rationally decide
against killing himself.”

Nelson, 398 So. 2d at 982.

Plaintiffs’ allegations do not meet this standard.
Plaintiffs alleges that “Mr. Fulk drafted letters to the FRA and
the Regional Director of the Department of Labor's Occupational
Safety & Health Administration (‘OSHA’) to expose Norfolk
Southern and its supervisors for their illegal conduct and make
a complaint of retaliation.” (Compl. (Doc. 1) ¶ 27.)

The

Complaint then alleges:
Mr. Fulk fully intended to send these letters.
However, the upcoming termination hearing combined
with the fact that NS was also harassing Wesley Ball
(another car inspector at Linwood Yard who was also
the nephew of Mrs. Fulk) combined with the years of
harassment and pressure, caused Mr. Fulk to suffer a
mental and psychological injury, emotional collapse,
and breakdown.
Because of his mental injury, instability, and
incapacity, Mr. Fulk did not mail the letters.
Instead, he reported to work on 1/13/11 as scheduled.
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After he signed in for work, he went to the employee
parking lot and shot himself in the head with a
pistol. He died from his wounds.
(Id. ¶¶ 28, 29.)

Thus, while the Complaint alleges mental

injury, instability, incapacity, emotional collapse, and
breakdown, it does not plausibly allege insanity or
uncontrollable impulse.

Nor will this court infer an

“uncontrollable impulse” from these allegations. Instead, the
Complaint alleges rational conduct – the drafting of letters to
FRA and the Regional Director of the Department of Labor’s OSHA
to expose Defendants for illegal conduct and the intent to send
these letters – followed by the allegations of suicide.

The

Complaint does not allege any facts intervening between the
rational conduct and the suicide that might offer some basis
upon which to conclude the suicide was an uncontrollable impulse
and not, as described in Nelson, “a mental condition in which
the injured person is able to realize the nature of the act of
suicide and has the power to control it if he so desires.”
Nelson, 398 So. 2d at 982.
In opposition, Plaintiffs argue that paragraphs 28 and 29
of the Complaint “clearly allege that Mr. Fulk’s mental injury
caused his behavior.”

(Pls.’ Resp. (Doc. 20) at 25.)

While

this may be true, the Complaint does not allege the degree of
Mr. Fulk’s mental injury, nor does it allege insanity or an
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uncontrollable impulse. There are simply no facts alleged to
support any inference of insanity or uncontrollable impulse,
particularly in light of the rational conduct and intent that
preceded the suicide.
As a result, this court concludes, in light of Gottshall,
that the Complaint fails to plausibly allege an actionable
injury under FELA.
Plaintiffs also contend, in the alternative, that
Defendants are “absolutely liable” under FELA for their alleged
violation of the anti-retaliation provision of the FRSA. (Pls.’
Resp. (Doc. 20) at 26.)

In support of their position,

Plaintiffs rely on cases holding railroads absolutely liable
under FELA for injuries caused by violations of various railroad
safety acts.

See Baltimore & Ohio R.R. Co. v. Groeger, 266 U.S.

521 (1925) (Boiler Inspection Act); San Antonio & Aransas Pass
Ry. Co. v. Wagner, 241 U.S. 476 (1916) (Safety Appliance Act);
McCarthy v. Pennsylvania R.R. Co., 156 F.2d 877 (7th Cir. 1946)
(Safety Appliance Act); Jarrett v. CSX Transp., Inc., No. 1:08CV-290, 2008 WL 4239148 (N.D. Ohio. Sept. 10, 2008) (Locomotive
Inspection Act); Robb v. Burlington N. & Santa Fe Ry. Co., 100
F. Supp. 2d 867 (N.D. Ill. 2000) (Safety Appliance Act).

“It is

well-settled that the FELA requires a finding of negligence per
se when there has been a violation of a safety statute
-21-

specifically aimed at the railroad industry.”13

Ries v. Nat’l

R.R. Passenger Corp., 960 F.2d 1156, 1159 (3rd Cir. 1992).
This court has found no authority to support Plaintiffs’
argument that a common carrier is absolutely liable under FELA
for any injuries caused by a violation of 49 U.S.C. § 20109 or
that such a violation establishes negligence per se.

Under the

FRSA’s anti-retaliation provision, interstate railroad carriers
“may not discharge, demote, suspend, reprimand, or in any other
way discriminate against an employee” for engaging in certain
protected activities.

49 U.S.C. § 20109(a).

Although that

statute may lead to safer railroads by protecting employees who
raise safety concerns, it does not easily translate to a tort
standard of care.

Accordingly, this court finds that 49 U.S.C.

§ 20109 is not a “safety statute” that may be used to establish
absolute liability or negligence per se under FELA.
Furthermore, even assuming that FRSA establishes a standard
of care and resulting negligence, it does not address the “zone
of impact” or the required causal connection between the injury
sustained and the failure to comply with a statutory duty.

Even

if a violation of the FRSA’s anti-retaliation provision could
13

The safety statute or regulation must be specifically
aimed at the railroad industry. In the Fourth Circuit, a
violation of an OSHA regulation may be used as evidence of
negligence but not to establish negligence per se. Albrecht v.
Baltimore & Ohio R.R. Co., 808 F.2d 329, 332 (4th Cir. 1987).
-22-

establish negligence per se under FELA, this court would still
dismiss the FELA claim.

A finding of negligence per se would

not make an otherwise uncompensable type of injury compensable.
B.

FRSA Retaliation Claim

Defendants also move to dismiss Plaintiffs’ claim under the
FRSA’s anti-retaliation provision, contending that this court
does not have subject matter jurisdiction over that claim
because Mrs. Fulk, rather than the decedent, filed the
administrative complaint.14

The extent to which a claim under 49

U.S.C. § 20109 survives the death of a railroad employee is a
question of first impression.

For the reasons that follow, this

court finds that Mr. Fulk’s widow has standing to file the
administrative complaint on his behalf.15

14

Defendants have not moved to dismiss this claim on any
other basis.
15

This court finds no merit to Plaintiffs’ argument that
the FRSA claim may be pursued through FELA. (See Pls.’ Resp.
(Doc. 20) at 6 n.4.) The cited cases hold only that a carrier
by railroad is absolutely liable under FELA for violations of
any of the Safety Appliance Acts, including the Boiler
Inspection Act. Unlike the FRSA anti-retaliation provision,
those acts did not create an independent enforcement mechanism;
instead, they “are substantively if not in form amendments to
the [FELA]” and “cannot be regarded as statutes wholly separate
from and independent” of that act. Urie v. Thompson, 337 U.S.
163, 189 (1949); see also Crane v. Cedar Rapids & Iowa City Ry.
Co., 395 U.S. 164, 166 (1969); Kernan v. Am. Dredging Co., 355
U.S. 426, 432-33 (1958); Lilly v. Grand Trunk W. R.R. Co., 317
U.S. 481, 485 (1943).
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The FRSA is intended “to promote safety in every area of
railroad operations and reduce railroad-related accidents and
incidents.”

49 U.S.C. § 20101.

The act was “substantially

amended in 2007 to include anti-retaliation measures.”

Araujo

v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 156 (3rd
Cir. 2013).

Under the FRSA’s anti-retaliation provision, a

railroad carrier may not “discharge, demote, suspend, reprimand,
or in any other way discriminate against an employee if such
discrimination is due, in whole or in part, to the employee’s
lawful, good faith act done, or perceived by the employer to
have been done or about to be done,” to engage in any of the
specified protected activities.

49 U.S.C. § 20109(a).

An employee who alleges discharge, discipline, or other
discrimination in violation of the statute may seek relief,
“with any petition or other request for relief . . . to be
initiated by filing a complaint with the Secretary of Labor.”16
49 U.S.C. § 20109(d)(1).

If a final decision has not been

issued within 210 days and the delay is not due to the
employee’s bad faith, the employee may file an original action
in federal district court.

49 U.S.C. § 20109(d)(3).

16

The Secretary of Labor has delegated the authority to
investigate and adjudicate whistleblower claims to the Assistant
Secretary for OSHA. 75 Fed. Reg. 3924 (Jan. 25, 2010).
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Here, it is undisputed that Mr. Fulk never filed an
administrative complaint.

Defendants have not challenged the

substantive sufficiency of the administrative complaint filed by
Mrs. Fulk, nor have they argued that Plaintiffs have otherwise
failed to comply with the statutory requirements for enforcement
actions.

Thus, the only issue is whether Mrs. Fulk, the

decedent’s widow and personal representative, had standing to
bring the action in the first place.
i.

FRSA Statutory Language and Regulations

Three different provisions inform the court’s analysis of
this issue. The first is FRSA’s whistleblower provision, which
states that “[a]n employee who alleges discharge, discipline, or
other discrimination . . . may seek relief in accordance with
the provisions of this section . . . by filing a complaint with
the Secretary of Labor.” 49 U.S.C. § 20109(d)(1).

The second is

the whistleblower provision of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century (“AIR21”), 49
U.S.C. § 42121(b), the “rules and procedures” of which FRSA
incorporates into its enforcement provision. 49 U.S.C.
§ 20109(d)(2)(A) (“Any action under [this provision] shall be
governed under the rules and procedures set forth in section
42121(B) . . . .”).

AIR21’s text states that “[a] person who

believes that he or she has been discharged or otherwise
-25-

discriminated against . . . may . . . file (or have any person
file on his or her behalf) a complaint with the Secretary of
Labor.” 49 U.S.C. § 42121(b)(1) (emphasis added). The third
provision is an agency regulation implementing FRSA, which
states that “[a]n employee who believes that he or she has been
retaliated against by an employer . . . may file, or have filed
by any person on the employee’s behalf, a complaint alleging
such retaliation.” 29 C.F.R. § 1982.103(a).
The primary point of contention between the parties is the
interpretation of 49 U.S.C. § 20109((d)(2)(A) incorporating
AIR21’s procedures.

Defendants contend that § 20109(d)(2)(A)

only incorporates specific provisions of AIR21 and does not
incorporate the provision that would allow another to file a
complaint with the Secretary of Labor on behalf of the employee.
(Defs.’ Br. (Doc. 11) at 15-21.)

Plaintiffs, on the other hand,

argue that Plaintiff Dana Fulk does have standing to file a
complaint on behalf of Mr. Fulk with the Secretary of Labor
under the statutory language and the implementing regulations.
(See Pls.’ Resp. (Doc. 20) at 7-10.)
Having reviewed the plain language of the regulation and
the two statutes, this court admits to having some difficulty
determining whether a FRSA claim can be filed on behalf of a
deceased employee. FRSA’s incorporative language (“Any action
-26-

under paragraph (1) shall be governed under the rules and
procedures set forth in section 42121(b) . . . .” (49 U.S.C.
20109(d)(2)(A))) unequivocally governs the enforcement actions
contemplated in § 20109(d)(1) (those “to be initiated by filing
a complaint with the Secretary of Labor”), but it is unclear
whether Congress intended to incorporate AIR21’s “or have any
person file on his or her behalf” language into the FRSA. The
Secretary of Labor apparently concluded that the language was
incorporated, as evidenced by the promulgated regulation
appearing to adopt AIR21’s language allowing third party filing
of complaints.

This court has no reason to find 29 C.F.R.

§ 1982.103(a) to be an unreasonable interpretation of the
statute.
Defendants note, correctly, that an implementing regulation
cannot expand a statutory grant of jurisdiction.
(Doc 11) at 16.)

(Defs.’ Br.

Nevertheless, viewing the statute as a whole,

this court finds the full text of 49 U.S.C. § 20109(d)(1) and
(2) significant.

Notably, (d)(1) provides:

“In general.--An

employee who alleges discharge, discipline, or other
discrimination . . . 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.”
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As further explained in (d)(2)(A):

“In general.--Any

action under paragraph (1) shall be governed under the rules and
procedures set forth in section 42121(b), including . . . .”
Thus, § 20109 authorizes the initiation of a request for
relief by filing a complaint with the Secretary.

Furthermore,

“any action” under paragraph (1) is governed by the rules and
procedures set forth in § 42121(b).

Each of these provisions

appears to address an action, including a complaint within the
Department of Labor.

An action at law is not permitted or

described in § 20109(d)(1); instead, that is addressed in other
sections of the statute.

As a result, this court finds that any

AIR21 provisions incorporated by § 20109(d)(2) apply to the
filing of a complaint with the Secretary of Labor.
The additional issue of what sections of AIR21 are
incorporated into § 20109’s procedures is more complex. Section
20109(d)(2)(A) provides that
Any action shall be governed under the rules and
procedures set forth in § 42121(b), including:
(i) Burdens of proof.
(ii) Statute of limitations.
(iii) Civil actions to enforce.
Oddly, although § 20109’s use of the term “including”
would suggest inclusion of specific provisions of § 42121,
the statutory language does not seem to follow that
interpretation.

Section 42121 contains a requirement that
-28-

a complaint be filed “not later than 90 days after the date
on which such violation occurs.”

49 U.S.C. § 42121(b)(1).

However, § 20109 states that “[a]n action under paragraph
(1) shall be commenced not later than 180 days after the
date on which the alleged violation . . . occurs.”
49 U.S.C. § 20109(d)(2)(A)(ii).
It therefore appears to this court that the word
“including” as used in § 20109(d)(2)(A) is intended to add
to or modify the language of § 42121 where noted.

Rather

than acting as a limitation to the incorporated provisions,
this court finds that an action under § 20109(d)(1) is
“governed under the rules and procedures set forth in
section 42121(b)” except where those provisions are
modified by § 20109(d)(2)(A)(i), (ii), or (iii) and (B). As
a result, this court finds that the § 42121(b)(i) language
permitting the filing of a complaint on behalf of the
employee (“or have any person file on his or her behalf”)
is a procedure incorporated into 49 U.S.C. § 20109.

This

court therefore further finds, in this case, that §§ 20109
and 42121 would authorize Mrs. Fulk to file a complaint
with the Secretary of Labor on behalf of Mr. Fulk as she
was authorized as required by statute.

-29-

Nevertheless, to the extent a third party is empowered
to commence an action under the FRSA on an employee’s
behalf, this court finds that both the statute and
regulation contemplate a living employee,17 or more
specifically, an employee who was alive at the time he gave
the directive to file the complaint. The use of the present
tense of the verb “have” implies that the employee must
have “caused” someone to file a complaint on his behalf or,
at least, that the employee must have been alive to “allow”
someone to do so.

See Webster’s New College Dictionary 520

(3d ed. 2008) (defining “have,” as relevant here, in the
following ways: “To cause to be done or performed”; “To
cause to, as by persuasion or compulsion”; “To cause to
be”; “To permit: allow”).

Contrary to this analysis,

Defendants argue that the statutory language (“An employee
who believes . . . may file, or have filed . . . on the
employee’s behalf”) (Defs. Br. (Doc. 11) at 13) and the
implementing regulations make clear that only a living
employee can file or “have filed on his behalf, a
complaint.”

This court disagrees with that interpretation.

17

The regulations define “employee” as “an individual
presently or formerly working for . . . a railroad carrier.”
29 C.F.R. § 1982.101(d). This definition is supported by the
statutory language authorizing an employee “who alleges
discharge . . .” to file a claim. 49 U.S.C. § 20109(d)(1).
-30-

The “have filed on his behalf” language contemplates a
living employee capable of authorizing the filing of the
complaint, but the liberal language of the statute does not
otherwise limit the authority, nor does it establish any
requirements at the precise time of the filing of the
complaint.
In this case, the Complaint alleges that it “was filed on
behalf of Mr. Fulk and/or his Estate in Mrs. Fulk’s capacity as
‘any persons on the employee’s behalf’ as authorized under 29
C.F.R. §§ 1982.101 and 1982.103(a).”18 (Compl. ¶ 30.) Ultimately,
whether Mrs. Fulk was properly authorized within the meaning of
the statute and the regulations (i.e., whether Mr. Fulk directed
her to file the action when he was alive) is an issue of fact
that, in light of the allegations contained in the Complaint, is
sufficiently pled and may be further addressed at summary
judgment, if necessary.
Defendants’ motion to dismiss the FRSA claim is limited to
one issue – whether or not the FRSA action may be initiated by a

18

In a supplemental brief, Plaintiffs argue certain facts
perhaps relevant to agency but not included in the Complaint.
(See Pls.’ Supplemental Br. Opposing Dismissal (Doc. 29) at 3
(“Mr. Fulk drafted his administrative complaint and talked to
his wife about filing it as late as the night before his
death.”).) Those facts are not considered here, but are the
kinds of facts which may be addressed and tested during
discovery.
-31-

deceased employee’s widow filing an administrative complaint. As
Defendants state:
It is important to make clear that Defendants’
motion to dismiss the Count 2 claim does not implicate
the more commonplace question whether a proceeding that
has been properly initiated survives the subsequent
death of the person who initiated it. For purposes of
this motion, Defendants have no occasion to dispute,
and assume arguendo, that if a railroad employee has
actually filed a § 20109 complaint with DOL while
living, the employee’s estate could continue to pursue
the claim at DOL . . . .
(Defs.’ Br. (Doc. 11) at 14-15.)

Defendants contend with

respect to such a claim punitive damages would be banned. (Id.
at 15 n.6.)
Plaintiffs, responding to Defendants’ argument to dismiss
the FRSA claim, argue that the FRSA claim survives under the
federal common law.

(Pls.’ Resp. (Doc. 20) at 11.)

In light of

Defendants’ limitation as to their argument (that an FRSA
complaint cannot be initiated by a deceased employee’s widow),
it is not entirely clear to this court why Plaintiffs have
advanced this federal common law argument except as an
alternative to the FRSA statutory provisions for allowing Mrs.
Fulk’s claim to proceed.
This court has entered its ruling finding that the FRSA
permits the filing of the complaint with the DOL, assuming Mrs.
Fulk was in fact authorized to file the complaint on behalf of
Mr. Fulk.

This court does not therefore find it necessary to
-32-

determine, at this time, an issue that was not raised by
Defendants in the original motion to dismiss except to briefly
acknowledge the parties’ apparent agreement that punitive
damages are not recoverable.
The fact that “Congress has failed to provide a clause on
survivorship to accompany the statute granting the right of
action does not necessarily mean that Congress intended that the
action abate upon the death of a party.”

Mallick v. Int’l Bhd.

of Elec. Workers, 814 F.2d 674, 677 (D.C. Cir. 1987).

“In the

absence of an expression of contrary intent, the survival of a
federal cause of action is a question of federal common law.”
United States v. NEC Corp., 11 F.3d 136, 137 (11th Cir. 1993)
(holding that a relator’s qui tam action survives his death);
see also Smith v. Dep’t of Human Servs., 876 F.2d 832, 834 (10th
Cir. 1989); Hoffman v. Sumner, 478 F. Supp. 2d 1024, 1030 (N.D.
Ill. 2007).

“The basic federal rule is that an action for a

penalty does not survive, though remedial actions do.”
Faircloth v. Finesod, 938 F.2d 513, 518 (4th Cir. 1991)
(citations omitted); see also NEC Corp., 11 F.3d at 137.

“A

remedial action is one that compensates an individual for
specific harm suffered, while a penal action imposes damages
upon the defendant for a general wrong to the public.”
Corp., 11 F.3d at 137.
-33-

NEC

For the reasons that follow, this court agrees with the
parties that Plaintiffs’ remedies are limited to those specified
in 49 U.S.C. § 20109(e)(2).
This court will dismiss the claim for punitive damages
pursuant to 49 U.S.C. § 20109(e)(3) because punitive damages are
“plainly penal.”

See Estwick v. U.S. Air Shuttle, 950 F. Supp.

493, 498 (E.D.N.Y. 1996) (dismissing claim for punitive damages
under the ADEA, ADA, and Title VII after the plaintiff’s death);
see also EEOC v. Timeless Invs., Inc., 734 F. Supp. 2d 1035,
1057 (E.D. Cal. 2010); Kettner v. Compass Grp. USA, Inc., 570 F.
Supp. 2d 1121, 1134 (D. Minn. 2008) (“Plaintiff is entitled to
all available remedies under the ADA and Rehabilitation Act
except for liquidated or punitive damages.”); Medrano v. MCDR,
Inc., 366 F. Supp. 2d 625, 635 (W.D. Tenn. 2005) (holding that a
claim for punitive damages under 42 U.S.C. § 1981 abated upon
the plaintiff’s death under federal common law); Allred v.
Solaray, Inc., 971 F. Supp. 1394, 1396 (D. Utah 1997) (“[C]laims
for punitive damages under the ADA do not survive the
plaintiff’s death.”); Caraballo v. S. Stevedoring, Inc., 932 F.
Supp. 1462, 1466 (S.D. Fla. 1996).
This court also rejects Plaintiffs’ claim for wrongful
death damages under the federal common law.

A wrongful death

action gives “surviving relatives a cause of action for losses
-34-

they suffered as a result of the decedent’s death,” Dooley v.
Korean Air Lines Co., 524 U.S. 116, 123 (1998), and the FRSA’s
anti-retaliation provision only provides remedies for the
injured employee, 49 U.S.C. § 20109(e); see also California v.
Sierra Club, 451 U.S. 287, 297 (1981) (“The federal judiciary
will not engraft a remedy on a statute, no matter how salutary,
that Congress did not intend to provide.”). The Complaint does
not state a separate wrongful death claim. Furthermore, this
court finds that amending the Complaint to include a common law
wrongful death claim would be futile.

Norfolk Shipbuilding &

Drydock Corp. v. Garris, 532 U.S. 811 (2001), and Moragne v.
States Marine Lines, Inc., 398 U.S. 375 (1970), recognize a
right to recover for wrongful death under general maritime law,
a “species of judge-made federal common law,” Yamaha Motor
Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1996).

This court

has found no authority that would support recognizing such a
right in any other legal context.
IV.

CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that

Defendants’ Motion to Dismiss (Doc. 10) is GRANTED IN PART and
DENIED IN PART.

The motion is GRANTED as to the FELA claim and

DENIED as to the FRSA claim.

IT IS FURTHER ORDERED that

-35-

Plaintiffs’ potential remedies on the FRSA claim are limited to
those specified in 49 U.S.C. § 20109(e)(2).
IT IS FURTHER ORDERED that Plaintiffs’ motion for leave to
file surreply (Doc. 22) is DENIED.
This the 4th day of August, 2014.

_______________________________________
United States District Judge

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