Brisbois v. Soo Line Railroad
124 F. Supp. 3d 891
D. Minnesota
2015

Background

  • Lori Brisbois, a unionized Soo Line (Canadian Pacific) employee and foreman, raised safety concerns after observing crew members on a live track on July 12, 2012. She secured protection and confronted supervisor Ken Heath, who sent her home and later accused her of being quarrelsome.
  • CP held a disciplinary hearing and on August 30, 2012 suspended Brisbois five days and restricted her foreman seniority for one year; she alleges CP also denied pay/mileage/meal reimbursements and several assistant-foreman positions at various times.
  • Brisbois called OSHA by phone on January 11, 2013 to complain of retaliation; OSHA initially mishandled the intake but ultimately treated the January call as the date of filing and investigated, finding no reasonable cause.
  • Brisbois sued in federal court after terminating administrative proceedings, asserting multiple FRSA retaliation claims: suspension/seniority restriction; denial of positions; denial of reimbursements; car damage; refusal to allow return to work in April 2013; and additional investigations/disciplinary allegations.
  • CP moved to dismiss for lack of subject-matter jurisdiction (RLA/arbitrability) and for failure to state a claim and argued some claims were untimely or unexhausted.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether claims are governed by the Railway Labor Act (mandatory arbitration) Brisbois: claims enforce FRSA rights independent of CBA CP: many claims require interpreting the CBA and so must be arbitrated under RLA Court: RLA bars jurisdiction as to claims that hinge on CBA entitlements (reimbursements, selection for positions); those claims dismissed without prejudice
Timeliness of OSHA filing Brisbois: her January 11, 2013 telephone complaint counts as filed within 180 days CP: written complaint was April 15, 2013 and untimely; OSHA failed to reduce the call to writing so call doesn't count Court: OSHA regulations treat oral complaints as filed on date of call; January 11 filing was timely
Exhaustion of administrative remedies Brisbois: federal suit grows from administrative complaint; additional allegations are particulars of same retaliation CP: several claims (e.g., general "other reimbursements," denials of positions after restriction ended) were not in OSHA charge Court: claims not alleged or reasonably related to the OSHA charge were not exhausted and would be dismissed (also duplicative of RLA-arbitrability analysis)
Whether being accused/ investigated (but not disciplined) is an adverse action under FRSA Brisbois: additional allegations and investigation are adverse and actionable CP: mere investigation or accusation without discipline is not an adverse action under the FRSA (analogous to Title VII standard) Court: dismissed claim based on additional allegations/investigation with prejudice — holding that accusation alone (without material harm) is not an adverse employment action under FRSA in this context

Key Cases Cited

  • Osborn v. United States, 918 F.2d 724 (8th Cir. 1990) (standard for jurisdictional factfinding on Rule 12(b)(1))
  • Aten v. Scottsdale Ins. Co., 511 F.3d 818 (8th Cir. 2008) (pleading standard — accept factual allegations as true)
  • Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
  • Ashcroft v. Iqbal, 556 U.S. 662 (2009) (disregard legal conclusions in pleadings)
  • Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994) (RLA mandatory arbitration to promote labor stability)
  • Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988) (when CBA interpretation triggers arbitration/preemption)
  • Consol. Rail Corp. v. Ry. Labor Execs’ Ass’n, 491 U.S. 299 (1989) (scope of RLA preemption)
  • Evermann v. BNSF Ry. Co., 608 F.3d 364 (8th Cir. 2010) (RLA arbitration when CBA is sole source of claimed right)
  • Taggart v. Trans World Airlines, Inc., 40 F.3d 269 (8th Cir. 1994) (purely factual questions do not require CBA interpretation)
  • Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014) (FRSA "contributing factor" causation standard)
  • Parisi v. Boeing Co., 400 F.3d 583 (8th Cir. 2005) (purpose of exhaustion requirement)
  • Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (Title VII adverse-action standard: might dissuade a reasonable worker)
  • Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) (broad scope of anti-retaliation protections)
  • Schiltz v. Burlington N. R.R., 115 F.3d 1407 (8th Cir. 1997) (CBA entanglement preemption example)
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