Koger v. Norfolk Southern Railway Company

Filing 26

MEMORANDUM OPINION AND ORDER re: 10 MOTION by Norfolk Southern Railway Company to Dismiss 1 Complaint for Lack of Subject Matter Jurisdiction having been converted to one for summary judgment is DENIED. Signed by Judge David A. Faber on 6/19/2014. (cc: counsel of record) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
LARRY L. KOGER,
Plaintiff,
v.

CIVIL ACTION NO. 1:13-12030

NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant’s motion to dismiss
for lack of subject matter jurisdiction.

(Doc. # 10).

For

reasons expressed more fully below, that motion, having been
converted to one for summary judgment, is DENIED.
Background
Plaintiff, Larry L. Koger, was employed as a conductor for
the defendant, Norfolk Southern Railway Company (“NSRC” or
“Norfolk Southern”).

On July 29, 2007, the locomotive on which

plaintiff was working as a conductor derailed when it ran a red
signal, causing the locomotive to proceed when it should not
have.

According to the allegations in the Complaint, the force

of the derailment caused Koger to suffer a severe back injury.
Koger further alleges that, “based on a pervasive and persistent
pattern of retaliatory conduct by Norfolk Southern,” he was
afraid to report his workplace injury.

Complaint ¶ 12.

Despite

his fear that his employment would be terminated for doing so,

Koger did report his injury and went to the hospital for
treatment.1
On August 8, 2007, Norfolk Southern held a hearing to
determine Koger’s fault in the accident.

At that hearing, Koger

testified that he could not see the stop signal before the
derailment “because the engine was moving in reverse on curved
tracks and his view was blocked by the ‘long hood.’” Id. at ¶ 18.
However, Darrell Smith, a NSRC supervisor, testified that Koger
could have prevented the accident.

Ultimately, NSRC determined

that Koger was a responsible party in the derailment and
terminated his employment.
Plaintiff appealed his dismissal from service under the
Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq.

On January 8,

2008, the Public Law Board issued an Interim Order “directing
that [Koger] be returned to service with seniority and other
benefits unimpaired”.

The Public Law Board issued its Final

Order on July 28, 2008.

In its Final Order, the Board found that

Koger was partially responsible for the derailment but that his

1

As a result of injuries he allegedly sustained when the
train derailed, plaintiff filed a complaint against Norfolk
Southern under the Federal Employees Liability Act (“FELA”), 45
U.S.C. § 51. Trial on the FELA action began on November 17,
2009. After a five-day trial, the jury returned a verdict
finding NSRC at fault and awarded plaintiff damages in the amount
of $3,431,026.00. The jury further found against Norfolk
Southern on the issue of contributory negligence, determining
that Koger himself was not negligent. On November 23, 2009, the
court entered judgment in plaintiff’s favor in the amount of
$3,431,026.00.
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termination from service was not warranted.

The Public Law Board

found that an unpaid suspension from service was a more
appropriate sanction and Koger was reinstated to his former
position.
In February 2008, Koger filed an administrative complaint
with the Occupational Health and Safety Administration (“OSHA”)
and the Department of Labor alleging that Norfolk Southern
retaliated against him for reporting a workplace injury, in
violation of Section 20109 of the Federal Rail Safety Act
(“FRSA”).

After the Department of Labor failed to issue a final

decision on Koger’s administrative complaint in the time period
for doing so, Koger filed his complaint in this court.
Norfolk Southern filed the instant motion to dismiss,
contending that, pursuant to the FRSA’s election of remedies
provision, Koger cannot file suit under the FRSA because he
previously challenged his termination in arbitration under the
Railway Labor Act.
Standard of Review
Norfolk Southern has filed a motion to dismiss, pursuant to
Federal Rule of Civil Procedure 12(b)(1), contending that this
court is without jurisdiction to consider Koger’s FRSA claim.
support of its motion, NSRC has attached the Declaration of
Andrew J. Shepard as an exhibit to it motion.

Likewise, Koger

has tendered several exhibits in responding to the motion to

3

In

dismiss.

As Norfolk Southern correctly points out, in

determining whether it has subject matter jurisdiction, the court
“may consider evidence outside the pleadings without converting
the proceeding to one for summary judgment.”

Richmond,

Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765,
768 (4th Cir. 1991).

However, the issue of consideration of

items extrinsic to the complaint aside, this court has serious
reservations that a Rule 12(b)(1) motion is the proper vehicle to
raise Norfolk Southern’s argument with respect to election of
remedies.
Another district court recently considered the propriety of
using a Rule 12(b)(1) motion to challenge the court’s
jurisdiction based on an argument that FRSA’s election of
remedies provision barred the plaintiff’s FRSA claim.

See

Ratledge v. Norfolk Southern Railway Co., No. 1:12-CV-402, 2013
WL 3872793 (E.D. Tenn. July 25, 2013).

As the Ratledge court

explained:
In this case, the provision of the FRSA at issue
is in a separate section from the provision that
confers jurisdiction on federal courts. Section
20109(d)(3) provides,
With respect to a complaint under paragraph
(1) [of subsection (d)], if the Secretary of
Labor has not issued a final decision within
210 days after the filing of the complaint
and if 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, which shall have
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jurisdiction over such an action without
regard to the amount in controversy, and
which action shall, at the request of either
party to such action, be tried by the court
with a jury.
Subsection (f), the election of remedies provision
in controversy here, states “[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.” Whereas subsection (d)(3)
clearly relates to a court’s jurisdiction, subsection
(f) does not invoke jurisdictional language. Courts
and litigants are duly instructed that, for instance, a
court lacks jurisdiction over a claim in the Secretary
of Labor issued a final decision within 210 days after
the employee filed his complaint. Courts and
litigants, however, are not duly instructed that an
employee’s separate action or invocation of another
provision of law for the same act constitutes a
jurisdictional bar to suit in federal court.
Id. at *5.

The Ratledge court ultimately decided that Norfolk

Southern should have moved for dismissal pursuant to Rule
12(b)(6) and, accordingly, did not consider a declaration
attached to the motion to dismiss.

See id. at *7.

In the instant case, however, the facts necessary to resolve
NSRC’s election of remedies argument do not appear in the
complaint.

Finding it necessary to consider matters outside the

pleadings and agreeing with the Ratledge court that Norfolk
Southern’s election of remedies argument does not speak to the
jurisdiction of this court to consider Koger’s FRSA claim, the
motion to dismiss is converted to one for summary judgment.2

2

Even were the court to agree with Norfolk Southern that
its motion is properly brought as one to dismiss for lack of
subject matter jurisdiction, in such cases a “district court
5

Rule 56 of the Federal Rules of Civil Procedure provides:
The judgment sought shall be rendered
forthwith if the pleadings, depositions,
answers to interrogatories, and
admissions on file, together with the
affidavits, if any, show that there is
no genuine issue as to any material fact
and that the moving party is entitled to
a judgment as a matter of law.
The moving party has the burden of establishing that there is no
genuine issue as to any material fact.
477 U.S. 317, 323 (1986).

Celotex Corp. v. Catrett,

This burden can be met by showing that

the nonmoving party has failed to prove an essential element of
the nonmoving party's case for which the nonmoving party will
bear the burden of proof at trial.

Id. at 322.

If the moving

party meets this burden, according to the United States Supreme
Court, "there can be 'no genuine issue as to any material fact,'
since a complete failure of proof concerning an essential element
of the nonmoving party's case necessarily renders all other facts
immaterial."

Id. at 323.

Once the moving party has met this burden, the burden
shifts to the nonmoving party to produce sufficient evidence for
a jury to return a verdict for that party.
The mere existence of a scintilla of
evidence in support of the plaintiff's
position will be insufficient; there
must be evidence on which the jury could

should apply the standard applicable to a motion for summary
judgment. . . .” Richmond, Fredericksburg & Potomac R.R. Co.,
945 F.2d at 768.
6

reasonably find for the plaintiff. The
judge's inquiry, therefore, unavoidably
asks whether reasonable jurors could
find, by a preponderance of the
evidence, that the plaintiff is entitled
to a verdict . . . .
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

"If

the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted."

Id. at 250-51.

Analysis
Section 20109(f) of the FRSA, entitled “Election of
remedies,” provides that “[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.”
20109(f).

49 U.S.C. §

According to NSRC, this provision bars Koger from

pursuing a claim under the FRSA because he has already challenged
his termination under the RLA.

This court disagrees.

In a consolidated appeal before the Department of Labor’s
Administrative Review Board (“ARB”), the ARB addressed Norfolk
Southern’s argument and found in favor of Koger.

See Mercier v.

Union Pacific Railroad and Koger v. Norfolk Southern Railway Co.,
Case Nos. 09-121, 09-101, 2011 WL 4915758 (ARB Sept. 21, 2011)
(hereinafter “Mercier”).

According to the ARB,

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.
This understanding is illuminated by language
used in Section 20109(h), which expressly
7

references “a collective bargaining agreement” in
describing the application of subsection (h).
The fact that a party relies on the law to
enforce a right in a collective bargaining
agreement is not the same as a right created
under a provision of law. See, e.g., Graf v.
Elgin, Joliet and Eastern Railway Co., 697 F.2d
771, 776 (7th Cir. 1983) (“Nor does the fact that
an activity is regulated by a federal statute, as
collective bargaining in the railroad industry is
regulated by the Railway Labor Act, mean that
disputes between private parties engaged in that
activity arise under the statute.”).
Consequently, if the parties' election of
remedies defense rests on rights created by a
collective bargaining [agreement], we do not need
to interpret the remainder of the Election of
Remedies provision.
Id. at *5.
Following Mercier, Norfolk Southern’s argument has been
rejected by numerous courts.

See, e.g., Grimes v. BNSF Railway

Co., 746 F.3d 184, 191 (5th Cir. 2014) (holding that plaintiff’s
FRSA claim was not barred by FRSA’s election-of-remedies
provision where plaintiff had previously submitted to RLA
arbitration under “the RLA-mandated grievance procedure and
arbitration established in the [collective bargaining
agreement]”); Reed v. Norfolk Southern Railway Co., 740 F.3d 420,
425 (7th Cir. 2014) (“In sum, although the Railway Labor Act is
indeed a federal statute – and thus, we may assume, another
provision of law – it is strained to say that Reed sought
protection under it by appealing his grievance to the special
adjustment board.

Rather, Reed sought protection under his

collective bargaining agreement.

The plain meaning of the
8

statute therefore tells us that Reed is not precluded from
obtaining relief under FRSA simply because he appealed his
grievance to Public Law Board 6394.”); Pfeifer v. Union Pacific
Railroad Co., No. 12-CV-2485-JAR-JPO, 2014 WL 2573326, *5 (D.
Kan. June 9, 2014) (“[T]he Court finds that the election of
remedies provision does not bar Plaintiff’s FRSA claim.”); Ray v.
Union Pacific Railroad Co., 971 F. Supp. 2d 869, 881 (S.D. Iowa
2013) (“[T]he court agrees with Mercier, Reed, and Ratledge that
Plaintiff’s FRSA claims are not barred by the election of
remedies provision in § 20109(f) merely because he elected to
pursue an enforcement action under the RLA for rights that
substantively arise under [the] collective bargaining
agreement.”); Ratledge v. Norfolk Southern Railway Co., No. 1:12CV-402, 2013 WL 3872793, *17 (E.D. Tenn. July 25, 2013) (“[T]he
Court concludes [Norfolk Southern]’s interpretation of § 20109(f)
conflicts with the statutory language, its history and prior
iterations, and relevant legislative materials.

Plaintiff did

not waive his FRSA retaliation rights when he entered RLA
arbitration.”).

As the United States Court of Appeals for the

Seventh Circuit explained, the plain meaning of 49 U.S.C. §
20109(f) does not support Norfolk Southern’s position that
Koger’s claim is barred by the election of remedies provision
found in the FRSA:
In our view, there is a conceptually simpler way
to address the question. For even assuming
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arguendo that the Railway Labor Act is “law”, it
must also be the case that Reed “sought
protection under” that law. Giving those words
their plain meaning, we cannot see how he did.
In the first place, the Railway Labor Act
“does not undertake governmental regulation of
wages, hours, or working conditions. Instead it
seeks to provide a means by which agreement may
be reached with respect to them.” Terminal R.R.
Ass'n v. Bhd. of R.R. Trainmen, 318 U.S. 1, 6, 63
S. Ct. 420, 87 L. Ed. 571 (1943). In other
words, the Act is entirely agnostic as to the
content of any collective bargaining agreement.
(Reed's appeal to Public Law Board 6394 is a case
in point; as the district court noted, the claim
he asserted arose solely from his collective
bargaining agreement.) Likewise, the Act's
streamlined arbitration procedures are intended
only to “see that disagreement about [working]
conditions does not reach the point of . . .
threaten[ing] continuity of work, not to remove
conditions that threaten the health or safety of
workers.” Id.; see also Hawaiian Airlines, Inc.
v. Norris, 512 U.S. 246, 252, 114 S. Ct. 2239,
129 L. Ed.2d 203 (1994); Elgin, Joliet & Eastern
Ry. Co. v. Burley, 325 U.S. 711, 725–28, 65 S.
Ct. 1282, 89 L. Ed. 1886 (1945).
We doubt that a person who arbitrates a
grievance based on a private contractual
agreement necessarily does so “under” federal law
merely because a federal statute requires that
the claim be brought before an adjustment board.
Cf. Graf v. Elgin, Joliet & Eastern Ry. Co., 697
F.2d 771, 776 (7th Cir. 1983) (“[T]he fact that
an activity is regulated by a federal statute, as
collective bargaining in the railroad industry is
regulated by the Railway Labor Act,” does not
mean that “disputes between private parties
engaged in that activity arise under the statute”
for jurisdictional purposes). But even if we
grant that Reed was proceeding under the Railway
Labor Act, it seems quite odd to say that he was
seeking protection under it. Again, the Railway
Labor Act offers Reed no protection at all; it
merely instructs him to bring any grievances that
cannot be resolved on-property to a specific
10

forum. By appealing to this forum, Reed did not
seek protection under the Railway Labor Act any
more than a litigant seeks protection under the
jurisdictional statute for the Court of Appeals
for the Federal Circuit, 28 U.S.C. § 1295, when
he files an appeal from a final decision of the
United States Court of Federal Claims.
Reed, 740 F.3d at 423-24 (internal footnotes omitted).

This

court finds the Reed opinion persuasive and agrees with the
analysis contained therein.3
For the reasons expressed in the thorough and wellreasoned authorities cited above, the court finds that Koger’s
FRSA claim is not barred by § 20109(f) because he has not

3

The court acknowledges that Reed, Mercier, and the other
cases decided above seem to be decided on slightly different
grounds as some tribunals focus on the “provision of law”
language while others, notably Reed, focus on the “seek
protection under” language. However, as the Reed court explained
these differences may be more a matter of semantics than
substantive.
The difference between our approach and the district
court's may be more terminological than anything.
Often, arguments designed to show that the Railway
Labor Act is not “law” can just as easily be used to
show that it is not the kind of law under which one can
“seek protection.” See, e.g., Ratledge, 2013 WL
3872793, at *14 (“[T]he rights a plaintiff seeks to
enforce [in the Railway Labor Act process]” are
“contractual rights . . . [a]nd it is those rights, not
the RLA, under which the plaintiff sought protection.”
(emphasis added)); Reed, 2013 WL 1791694, at *4
(“Reed's right to be terminated only for just cause ...
arises not out of any provision of the RLA, but instead
out of the collective bargaining agreement.”).
Reed, 740 F.3d at 423 n.2.
11

previously “[sought] protection under another provision of law”
for his unlawful termination.
Conclusion
Based on the foregoing, defendant’s motion for summary
judgment is DENIED.

The Clerk is directed to send copies of this

Memorandum Opinion and Order to all counsel of record.
IT IS SO ORDERED this 19th day of June, 2014.
ENTER:

David A. Faber
Senior United States District Judge

12