United States District Court, W.D. Washington, Tacoma
JAMES T. NORVELL, Plaintiff,
BNSF RAILWAY COMPANY, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant BNSF Railway
Company's (“BNSF”) motion to dismiss. Dkt.
10. The Court has considered the pleadings filed in support
of and in opposition to the motion and the remainder of the
file and hereby denies the motion for the reasons stated
August 29, 2017, Plaintiff James T. Norvell filed his
complaint in this lawsuit. Dkt. 1. Plaintiff brings claims
against BNSF for a wrongful discharge in violation of public
policy and the tort of outrage. Id. On October 11,
2017, BNSF moved to dismiss the complaint. Dkt. 10. On
October 30, 2017, Plaintiff responded. Dkt. 13. On November
3, 2017, BNSF replied. Dkt. 14.
2015, Plaintiff worked for BNSF as a locomotive engineer.
Dkt. 1 at 2. On July 12, 2015, Norvell was assigned to move
trains between two connected BNSF rail yards in Portland,
operating Locomotive 2339 to move 22 freight cars, Plaintiff
found that the locomotive was not responding to his efforts
to slow its downhill descent into the train yard.
Id. at 2-3. Plaintiff was aware that there were
workers in the area, that there were hazardous tank cars at
the bottom of the yard, and that he was surrounded by storage
facilities full of dangerous and flammable products.
Id. at 3. Failing to stop the train “likely
would have caused an enormous explosion and/or spill of
hazardous materials” that would have placed the lives
of those in the yard in imminent peril and created a danger
to the public at large. Id.
order to avoid a collision, Plaintiff placed the locomotive
in reverse and successfully stopped the train. Id.
Stopping the train in this way caused damage to Locomotive
2339 and brought it out of safety compliance with federal
regulations. Id. However, there was “no other
option to stop the train in time to avoid catastrophe.”
BNSF initiated an investigation and disciplinary proceedings
against Plaintiff “in connection with [his] alleged
failure to safely operate [his] train, specifically, when you
failed to properly stop your movement in accordance with
proper train handling . . . .” Id. During
disciplinary proceedings, Plaintiff obtained and revealed
testimony from a BNSF mechanic to the effect that (1)
Locomotive 2339 suffered from braking defects that had not
been properly addressed by BNSF, and (2) BNSF had refused to
authorize appropriate repairs which had resulted in “a
fleet of substandard and non-compliant locomotives.”
Id. at 4.
August 31, 2015, BNSF fired Plaintiff. Id. at 5.
Plaintiff now claims that BNSF, in violation of public
policy, wrongfully terminated him for his actions in stopping
the train and bringing BNSF's repair practices to light.
moves to dismiss Plaintiff's complaint under two
theories. The Court will first address BNSF's argument
that Plaintiff's claims are preempted by the Railway
Labor Act (“RLA”), 45 U.S.C. §§
151-188. Then the Court will address BNSF's arguments
that Plaintiff's complaint fails to allege facts that
support viable claims for a wrongful discharge in violation
of public policy or the tort of outrage.
Motion to Dismiss Standard
to dismiss brought under Rule 12(b)(6) of the Federal Rules
of Civil Procedure may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under such a theory. Balistreri v. Pacifica
Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Material allegations are taken as admitted and the complaint
is construed in the plaintiff's favor. Keniston v.
Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive
a motion to dismiss, the complaint does not require detailed
factual allegations but must provide the grounds for
entitlement to relief and not merely a “formulaic
recitation” of the elements of a cause of ...