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Dunn v. BNSF Railway Co.

United States District Court, W.D. Washington, Seattle

August 25, 2017

LINDSAY DUNN, Plaintiff,




         Plaintiff Lindsay Dunn brought this action against his former employer, Defendant BNSF Railway Company (“BNSF”), alleging that BNSF violated the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109, when it retaliated against him in various ways after he had engaged in activities protected under the FRSA. (Compl. (Dkt. # 1) ¶¶ 7-11.) This matter is before the court on BNSF's motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (MTD (Dkt. # 6).) The court has considered the parties' submissions in support of and in opposition to the motion, the relevant portions of the record, and the applicable law. Being fully advised, [1] the court GRANTS in part and DENIES in part BNSF's motion to dismiss; ORDERS Mr. Dunn to show cause within seven (7) days why the court should not dismiss his failure to offer alternative handling claim for lack of subject matter jurisdiction; DISMISSES with prejudice his December 17, 2014, suspension and investigation claims; and DISMISSES with leave to amend the remainder of his retaliation claims.


         This case arises from Mr. Dunn's employment with BNSF, a railroad carrier that engages in interstate commerce. (Compl. ¶¶ 2-3.) Over the course of his employment, Mr. Dunn and BNSF have been involved in several other lawsuits, two of which are relevant here.[2] Thus, the court recites the relevant portions of the two previous suits before discussing the material facts of the present action.

         A. Previous Litigation Between Mr. Dunn and BNSF

         Mr. Dunn initiated the first suit relevant to matters raised here in January of 2014. In that case, he alleged that BNSF violated the FRSA by taking unfavorable employment action-specifically in regard to leave time-against him in retaliation for his December 2007 report of a work-related injury. (Compl. ¶ 7b; Endres Decl. (Dkt. # 7) ¶ 3, Ex. B at 9-10; see also Dunn v. BNSF Ry. Co., No. C14-1621JLR, Dkt. # 1 (W.D. Wash.) (“Dunn I”).) The parties stipulated to dismiss the suit with prejudice. (Endres Decl. ¶ 3, Ex. B at 28-29.)

         In June 2015, BNSF filed the second suit against Mr. Dunn for allegedly falsifying mileage information and, as a result, receiving overpayment.[3] (Id. ¶ 4, Ex. C at 5-6.; see also BNSF Ry. Co. v. McArthur, No. C15-0992RAJ, Dkt. # 1 (W.D. Wash.) (“Dunn II”).) In his motion to dismiss that suit, Mr. Dunn argued that the federal court was without jurisdiction to hear the case because the Railway Labor Act (“RLA”) preempted BNSF's tort suit. (Endres Decl. ¶ 4, Ex. C at 32.) He pointed out that determining whether he had properly recorded his mileage depended upon a provision of the collective bargaining agreement (“CBA”) between his union and BNSF, and when it is necessary to interpret the CBA to resolve a dispute, the RLA requires exclusive use of its procedural mechanisms and generally preempts other simultaneous actions. (Id. at 24, 33.) The court agreed that it could not resolve the mileage dispute without consulting the CBA, and that the RLA demands such disputes be settled through binding arbitration. (Id. at 126-27.) Thus, it dismissed the suit for lack of subject matter jurisdiction. (Id. at 128.)

         B. Present Retaliation Suit

         Mr. Dunn now asserts that BNSF took the following six adverse actions against him during the course of his employment. The first three unfavorable actions occurred on December 17, 2014: (1) Mr. Dunn was “pulled . . . out of service without pay, ” (2) told that he was being investigated for work-related conduct, and (3) was refused the option for “alternative handling.” (Compl. ¶¶ 8a-8c.) Then, on or around March 25, 2015, he was (4) subjected to an investigatory hearing and (5) ultimately terminated a month later, on or around April 10, 2015. (Id. ¶¶ 8d-8e.) For each of the above disciplinary actions, BNSF (6) documented the action taken against Mr. Dunn on his employment record, “creating a potential for blacklisting.” (Id. ¶ 8f.) Mr. Dunn maintains that BNSF took these six actions in retaliation for various protected activities that he engaged in, including reporting a work-related personal injury in December of 2007 (id. ¶ 7a); filing a whistleblower complaint with the Occupational Safety and Health Administration (“OSHA”) in January of 2014 (id. ¶ 7b); raising “a number of safety-related concerns” in November of 2014, “including but not limited to requesting that notes be kept at safety meetings” (id. ¶ 7c); and attempting to comply with federal law in accurately reporting his time slips (id. ¶ 7d).

         Based on BNSF's alleged retaliation, Mr. Dunn filed a complaint with OSHA on or about July 23, 2015, alleging that BNSF had violated the FRSA. (Id. ¶ 4.) The Secretary of Labor (“the Secretary”) issued preliminary findings, to which Mr. Dunn objected. (Endres Decl. ¶ 5, Ex. D. at 3-4, 7.)[4] After 210 days elapsed since Mr. Dunn filed his original complaint without a final decision from the Secretary, he transferred his complaint to federal court for de novo review. (Compl. ¶ 4; see also 49 U.S.C. § 20109(d)(3).)

         III. ANALYSIS

         BNSF moves to dismiss Mr. Dunn's FRSA claims under both Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (MTD at 2.) The court now addresses each basis for dismissal in turn.

         A. Dismissal for Lack of Subject Matter Jurisdiction

         Although BNSF characterizes its motion as a Rule 12(b)(1) motion to dismiss, it references a lack of subject matter jurisdiction only in passing. First, BNSF asserts that “estoppel binds [Mr. Dunn] to the argument that his entitlement to wages . . . must be, and is being, arbitrated under the [RLA], depriving the [c]ourt of subject matter jurisdiction over his lost wages claim.” (MTD at 2 (footnote omitted); see also Id. at 21 (stating that Mr. Dunn is “bound by his RLA preemption argument relating to wage loss, which deprives this [c]ourt of subject matter jurisdiction”).) It then mentions a lack of jurisdiction again when discussing BNSF's refusal to offer Mr. Dunn “alternative handling” after he was suspended in December of 2014: “[W]hether or not [Mr. Dunn] is entitled to alternative handling can only be determined by interpreting [his CBA], thus any related claim is preempted by the [RLA].”[5] (Id. at 17.) It is unclear whether BNSF asserts that judicial estoppel deprives the court of jurisdiction, or whether it argues that the RLA preempts only the alternative handling claim. Nonetheless, the court addresses both contentions.

         1. Legal Standard

         Under Rule 12(b)(1), the court must dismiss claims over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A motion to dismiss for lack of subject matter jurisdiction is either facial or factual. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. “The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)). However, if the moving party “convert[s] the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)). In either instance, the party asserting its claims in federal court bears the burden of establishing subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

         2. Judicial Estoppel

         To the extent that BNSF argues that judicial estoppel strips the court of jurisdiction, it misapprehends the nature of the doctrine. Judicial estoppel is an “equitable doctrine invoked by a court at its discretion.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)) (internal quotation marks omitted). Courts consider judicial estoppel an affirmative defense that does not affect a court's jurisdiction. See Khadera v. ABM Indus. Inc., No. C08-0417RSM, 2012 WL 581402, at *2 (W.D. Wash. Feb. 21, 2012); Idearc Media LLC v. Glassman, No. 10-1216, 2011 WL 570017, at *2 (E.D. Pa. Feb. 15, 2011). As such, an argument claiming judicial estoppel is more properly considered under Rule 12(b)(6). See Black v. Midland Credit Mgmt., Inc., No. C13-5626RBL, 2013 WL 5140181, at *1 (W.D. Wash. Sept. 12, 2013) (“While dismissal on 12(b)(6) grounds is generally disfavored, a court may dismiss a claim when the plaintiff has included allegations disclosing some absolute defense or bar to recovery, such as judicial estoppel.”). Thus, even if judicial estoppel were to bar this suit, it would not deprive the court of jurisdiction; accordingly, the court addresses the merits of BNSF's judicial estoppel argument in its 12(b)(6) analysis. See infra § III.B.5.

         3. Preemption of Alternative Handling Claim

         BNSF next argues that the court is without jurisdiction to adjudicate Mr. Dunn's alternative handling claim, [6] which BNSF contends would require interpretation of the CBA and is thus preempted by the RLA. (MTD at 17; Reply at 9.) One of the purposes of the RLA is “to provide for the prompt and orderly settlement of all disputes growing out of . . . the interpretation or application of agreements covering rates of pay, rules, or working conditions.” 45 U.S.C. § 151a(5). In pursuit of this goal, the RLA establishes a “mandatory arbitral mechanism” when there are disputes concerning “the interpretation or application of [CBAs], ” such as “controversies over the meaning of an existing [CBA] in a particular fact situation.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252-53 (1994) (quoting Trainmen v. Chicago River & Ind. R.R. Co., 353 U.S. 30, 33 (1957)) (internal quotation marks omitted). These disputes, known as “minor disputes, ” are within the exclusive jurisdiction of an arbitrator, and therefore, any federal suit involving minor disputes would be preempted. See Id. at 253.

         BNSF maintains that Mr. Dunn's alternative handling claim involves a “minor dispute” because the court must ascertain whether Mr. Dunn was entitled to alternative handling in the first place, a determination that requires interpretation of the CBA. (MTD at 17; Reply at 9.) As support, it cites to Brisbois v. Soo Line Railroad Company, 124 F.Supp.3d 891 (D. Minn. 2015), a FRSA case where the employee claimed several adverse actions, such as denial of reimbursements and promotions. See Id. at 897. The court observed that to decide whether retaliation occurred, it had to first determine whether the employee was entitled to those reimbursements and promotions-determinations that were “dependent on the CBA” because the employee could not identify anything outside of the CBA that granted her such entitlement. Id. Because it would be “impossible for the Court to adjudicate [the employee's] claims without interpreting the provisions of the CBA, ” those claims were minor disputes that were preempted by the RLA. Id.

         Here, Mr. Dunn provides the court with little information about what alternative handling is, let alone from where his entitlement to alternative handling derives. (See Compl. ¶ 8c.) And in response to BNSF's contentions, Mr. Dunn suggests vaguely that the FRSA itself may give rise to rights and obligations independent of his CBA, with no specific reference to alternative handling. (See MTD Resp. at 18 (“The [FRSA] therefore imposes rights and obligations that exist independent of [Mr.] Dunn's CBA, and any argument to the alternative is simply unavailing.”).) From Mr. Dunn's inability to ascertain the origin of his entitlement to alternative handling, it appears to the court that, like in Brisbois, the “only source of any entitlement . . . would be the CBA.” See 124 F.Supp.3d at 897. But without the CBA or any information specific to the terms of Mr. Dunn's employment, the court cannot reach any conclusion, as the Brisbois court did, regarding his right to alternative handling and whether it requires interpretation of the CBA.[7]

         Accordingly, the court orders Mr. Dunn to show cause, within seven (7) days, why his alternative handling claim should not be dismissed for lack of subject matter jurisdiction. In his submission, Mr. Dunn must state specifically where his right to alternative handling originates, if not from the CBA. He must respond to this order no later than seven (7) days of the entry of this order. If he does not timely comply with this order, or otherwise fails to adequately respond, the court will dismiss his claim of alternative handling for lack of subject matter jurisdiction.

         B. Dismissal for Failure to State a Claim

         The court now considers BNSF's various arguments for Rule 12(b)(6) dismissal of Mr. Dunn's FRSA retaliation claims. The FRSA serves “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. Pursuant to the FRSA, a railroad carrier, such as BNSF, 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 an employee's engagement in a protected activity. Id. § 20109(a). To state a claim of retaliation under the FRSA, a plaintiff bears the initial burden of pleading sufficient facts that demonstrate “(1) he engaged in a protected activity; (2) the employer knew he engaged in the allegedly protected activity; (3) he suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable personnel action.” Rookaird v. BNSF Ry. Co., No. C14-176RSL, 2015 WL 6626069, at *2 (W.D. Wash. Oct. 29, 2015); Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 157 (3d Cir. 2013); cf. Tamosaitis v. URS Inc., 781 F.3d 468, 481 (9th Cir. 2015) (reciting the prima facie case for an analogous Energy Reorganization Act retaliation claim).[8] If the plaintiff establishes this prima facie case, the burden shifts to the railroad carrier to demonstrate “by clear and convincing evidence that [it] would have taken the same unfavorable personnel action in the absence of the protected activity.” Rookaird, 2015 WL 6626069, at *2; cf. Tamosaitis, 781 F.3d at 481.

         BNSF argues that Mr. Dunn fails to state a claim on three of the above elements necessary for a prima facie showing. First, it insists that the complaint be dismissed in whole because Mr. Dunn did not plead sufficient factual allegations relating to the contributing factor element. (MTD at 11-12.) In the alternative, it asserts that the pleadings surrounding the elements of protected activity and adverse action are insufficient, and thus the complaint fails to state a claim upon which relief can be granted. (Id. at 12-19.)

         1. Le ...

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