Battenfield v. BNSF Railway Company

Filing 57

OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting 23 Motion to Amend (Re: 1 Complaint ) (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

RANDY BATTENFIELD,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 12-CV-213-JED-PJC

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave to File
Amended Pleading [Dkt. No. 23]. Battenfield filed this action in April 2012
asserting a claim under the Federal Employees’ Liability Act (“FELA”), 45 U.S.C. §
51 et seq., alleging that he was injured as the result of BNSF Railway Company’s
(“BNSF”) failure to maintain a safe workplace. Plaintiff now seeks to add a claim
for retaliation under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109.
Defendant BNSF objects. For the reasons set forth below, the Motion to Amend
is GRANTED.
I.
BACKGROUND
In August 2011, Plaintiff Randy Battenfield (“Battenfield”) was working in
the Defendant BNSF’s Cherokee rail yard in Tulsa, Oklahoma. Battenfield was
driving a Kubota UTV with a passenger, Deborah Ann Beeler, on board.
Battenfield alleges that as he drove across some railroad tracks, his vehicle was
1

struck by a free-rolling flat car. Battenfield was injured; Beeler was killed.
Thereafter, BNSF undertook an internal investigation of the accident. Battenfield
told BNSF that he had stopped the Kubota before crossing the tracks, and a
witness supported Battenfield. BNSF, however, felt that a video of the accident
indicated Battenfield did not stop before entering the crossing, and that
Battenfield had given inconsistent stories about where he had stopped his
vehicle. On February 22, 2012, Battenfield was fired for dishonesty.
Defendant objects to the proposed amendment. Initially, Defendant
objected on the grounds that the punitive nature of the FRSA claim is
“incompatible with FELA’s broad remedial purpose.” [Dkt. No. 26, at 4].
Defendant argued that the FRSA claim would raise new factual issues, use a
different burden of proof, and confuse the jury. [Dkt. No. 26, at 7-12]. Nowhere
in its initial objection to the Motion to Amend did BNSF assert that Plaintiff was
precluded from pursuing his retaliation claim by virtue of the election of
remedies provision in 49 U.S.C. § 20109(f) of FRSA.
At a hearing held January 15, 2013, Defendant espoused an entirely new
argument against the amendment: That the election of remedies provision of
FRSA bars relief under that act if the plaintiff has sought relief for the same
allegedly unlawful conduct under the Railway Labor Act (“RLA”), 45 U.S.C. § 153
First (i); and, that election of remedies is a threshold bar to a FRSA claim,
thereby making the Motion to Amend futile. Because these arguments were

2

raised for the first time at the hearing, the parties were given additional time to
brief the matter. Extensive briefing has now been completed, and the Court
believes further oral argument would not be helpful.
II.
GENERAL PRINCIPLES REGARDING AMENDMENT
Plaintiff seeks leave of Court to file an amended Complaint adding a
retaliation claim under FRSA. The Rules of Civil Procedure provide:
[Other than when amending of right], a party may amend its
pleading only with the opposing party's written consent or the
court's leave. The court should freely give leave when justice so
requires.
Fed. R. Civ. P. 15(a)(2).
It is an abuse of discretion to deny leave to amend “without any justifying
reason,” Foman v. Davis, 371 U.S. 178, 182 (1962), or if the Court’s decision is
arbitrary, capricious, whimsical or manifestly unreasonable.” Orr v. City of
Albuquerque, 417 F.3d 1144, 1153 (10th Cir. 2005). “Justifying reasons” for
denying a motion to amend include: undue delay, bad faith or dilatory motive,
repeated failure to cure deficiencies by previous amendments, undue prejudice
to the opposing party, and futility. Foman, 371 U.S. at 182. In examining an
objection to amendment based on futility, the Court essentially asks whether the
proposed amendment would survive a motion to dismiss. Anderson v. Suiters,
499 F.3d 1228, 1238 (10th Cir. 2007); Bradley v. J.E. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004) (“A proposed amendment is futile if the complaint, as amended,

3

would be subject to dismissal.”). In this case, the question is narrower: Is
Plaintiff’s claim under the FRSA colorable in light of the election of remedies
provision of the FRSA?
Whether to grant or deny leave to amend is a matter within the court’s
discretion. Byllin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009), cert. denied, 130
S.Ct. 1506 (2010).
III.
DISCUSSION
BNSF contends that Battenfield’s Motion should be denied because
allowing the amendment would be futile since his retaliation claim is precluded
by FRSA’s election of remedies provision. At this juncture it is not clear, as a
matter of law, that the proposed amendment is futile – that is, it is not clear that
Battenfield’s retaliation claim is necessarily precluded, because there is legal
authority supporting Battenfield’s claim.
The FRSA provision in question states: “An 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). BNSF argues
that this language bars Battenfield from asserting a FRSA retaliation claim
because he has already pursued relief under a Collective Bargaining Agreement
(“CBA”) between his union and BNSF.
In In the Matter of: Michael L. Mercier v. Union Pacific Railroad Co. and Larry
L. Koger v. Norfolk Southern Railway Co., 2011 WL 4915758 (DOL Adm.Rev.Bd.
4

Sept. 29, 2011) (hereafter, “Mercier”), the Arbitration Review Board (“ARB”) of the
Department of Labor examined circumstances nearly identical to those
presented here and found that a retaliation claim was not precluded by FRSA’s
election of remedies provision. Mercier involved two appeals from rulings by
different Administrative Law Judges (“ALJ”) concerning the election of remedies
provision of FRSA. In Mercier’s case, the ALJ held that pursuing a contractual
remedy under a CBA is not seeking relief under “another provision of law”; thus,
Mercier was allowed to proceed with his retaliation claim. In Koger’s case,
however, the ALJ held that resort to the grievance process did bar relief under
FRSA.
The cases were consolidated on appeal to the ARB. The ARB affirmed the
ALJ’s action in Mercier and reversed the ALJ’s action in Koger. The Board said:
“In our view, the plain meaning of ‘another provision of law’ does not encompass
grievances filed pursuant to a ‘collective bargaining agreement,’ which is not
‘another provision of law’ but is instead a contractual agreement.” Id. at *5.
After reviewing the legislative history of the FRSA, the Board said:
Based on the foregoing interpretation of the FRSA's mandate, (1) we
deem nothing in these whistleblower protection provisions as
diminishing Mercier's right to pursue arbitration under the
collective bargaining agreement between his union and his
employer, and (2) we hold that by pursuing arbitration Mercier did
not waive any rights or remedies that the FRSA affords him,
including the right to pursue a whistleblower complaint under its
provisions.
Id. at *7.
5

As BNSF points out, the ARB decision is not precedential. This
Court may consider, but need not give deference to, the Mercier decision.
However, Mercier does provide some authority for Battenfield’s position –
and Mercier is not the only authority indicating that BNSF’s election of
remedies argument is less than clear.1
Although Norfolk S. Ry. Co. v. Solis, 2013 WL 39226 (D.D.C. Jan. 3, 2013)
concerned a different issue than the one presented here, the Court’s analysis of
the inter-relationship between the RLA and FRSA is instructive. In Solis, Plaintiff
Norfolk Southern Railway Co. (“NSR”) sought judicial review of the non-final
agency decision by the ARB regarding Koger, one of the plaintiffs in the
consolidated Mercier appeals. The Secretary of Labor moved to dismiss NSR’s
lawsuit on jurisdictional grounds and for failure to state a claim. 2013 WL
39226 at * 1. The District Court found that it lacked subject matter jurisdiction
of NSR’s Complaint and dismissed the action.2

Indeed, the Court wonders why, if this argument is so clear, it was not
raised in BNSF’s initial objection to the Motion to Amend.
1

Under FRSA, a final order of the ARB is subject to judicial review in a
United States Court of Appeals. 49 U.S.C. § 20109(d)(4). District courts have
jurisdiction in § 20109 cases in limited circumstances. NSR contended that it
was entitled to direct review of the ARB decision under the doctrine of Leedom
v. Kyne, 358 U.S. 184 (1958) because the ARB’s decision exceeded the Secretary’s
delegated powers and that NSR had no other meaningful and adequate means to
vindicate its statutory right. Solia, 2013 WL 39226, at *7. In addressing the first
prong of analysis under the Leedom doctrine, the Court discussed many of the
issues raised before this Court by BNSF.
2

6

In the course of rendering its decision, the Court addressed whether NSR
had established that the Secretary had disobeyed a clear and mandatory
statutory provision by failing to bar Koger’s FRSA complaint under the election
of remedies provision of the RLA. Solis at *8-*9. The Court noted that the
statutory provisions of FRSA were “neither specific nor unambiguous.” Id. at *9.
The Court found a colorable distinction between the RLA’s “procedural”
provisions for mandatory arbitration of disputes concerning a CBA and the
substantive provisions contained in the CBA. Id. The Court also saw a
distinction in the unlawful act that was the basis of the claims. “In Koger's case,
the unlawful act alleged under the FRSA was a dismissal in retaliation for
reporting his injury. The unlawful act alleged in his RLA § 3 arbitration was
dismissal in violation of his rights under the CBA concerning his responsibility
for the accident.” Id. Similar reasoning could apply here.
The Court in Solis also found that statutory history supported the
idea of distinguishing the retaliation claim from the CBA claim.
NSR ignores the different statutory scheme created by the 2007
amendments to FRSA. Until the 2007 amendments, retaliation
claims were pursued before an RLA § 3 arbitration board; therefore,
retaliation claims and complaints pursuant to an employee's CBA
were pursued in one action. The 2007 amendments to the FRSA
were an attempt to “enhance [ ] administrative and civil remedies for
employees” and “to ensure that employees can report their concerns
without the fear of possible retaliation or discrimination from
employers.” H.R.Rep. No. 110–259 at 348 (2007) (Conf.Rep.). As a
part of achieving these goals, the Secretary took over the
proceedings related to retaliation claims under FRSA, separating
such claims from any claims alleging violations of an employee's
7

CBA. At the same time, Congress amended the statute with §§
20109(g) and 20109(h). Under NSR's reading of the statute, an
employee who was dismissed both in violation of his CBA and in
retaliation for reporting an injury would be forced to choose
between his claim for retaliation under FRSA and his rights under
his CBA. As discussed above, Congress' provisions under §§ 20109(g)
and (h) limited the preemption of other rights of action by an
employee and reinforced employee rights. It would be highly
inconsistent with the 2007 amendments for Congress, by
transferring retaliation claims to the Secretary, to limit the ability to
engage in RLA arbitration and pursue a separate retaliation claim
under FRSA without further clarification.
Solis at *10 (emphasis added).
IV.
CONCLUSION
Mercier and Solis indicate that Battenfield’s retaliation claim is at
least colorable. The Court does not believe that on the record before it,
and after considering the submitted legal authority, that it is clear that
Battenfield cannot maintain his FRSA retaliation claim. Furthermore,
Battenfield deserves a fair opportunity to marshal evidence and materials
in support of his election of remedies position, just as BNSF has done.3
The better way to do this is to allow the Amended Complaint and
preserve the issue for determination at a more

The Court is aware that BNSF believes there is no need for discovery and
the matter should be decided now as a pure question of law. However, BNSF
submitted voluminous evidentiary and other materials in support of its election
of remedies argument. Those materials included at least one affidavit. If such
materials are permissible in support of BNSF’s argument, simple fairness would
require that Battenfield have a similar opportunity – including, taking the
deposition of BNSF’s affiant, if desired.
3

8

appropriate time. The Court emphasizes that it is not holding that
§20109(f) does not preclude Battenfield’s retaliation claim; only that on
this record, the law is not as clear as BNSF contends that the amendment
is futile.
ACCORDINGLY, the Motion to Amend [Dkt. No. 23] is GRANTED.
IT IS SO ORDERED, this 26th day of March 2013.

9