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Norvell v. Bnsf Railway Company

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

January 2, 2018

JAMES T. NORVELL, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS

          BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.

         This 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 herein.

         I. PROCEDURAL HISTORY

         On 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.

         II. FACTUAL BACKGROUND[1]

         In 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, Oregon. Id.

         While 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.

         In 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.” Id.

         Subsequently, 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.

         On 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.

         III. DISCUSSION

         BNSF 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.

         A. Motion to Dismiss Standard

         Motions 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 ...


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