Gunderson v. BNSF Railway Co., 29 F. Supp. 3d 1259

Gunderson, a former employee of BNSF Railway Company, filed a whistleblower action under FRSA § 20109 alleging retaliation for safety reporting and filing a personal-injury report.
The Secretary conducted an administrative investigation; after discovery, an ALJ held a hearing and issued findings of fact and conclusions of law.
Gunderson challenged the ALJ decision by seeking review, while pursuing his right to a federal de novo action if the Secretary failed to issue a final decision within 210 days.
The ALJ concluded Gunderson was terminated for threatening/harassing a coworker, not for protected conduct.
Gunderson filed a Notice of Intent to File Original Action and then filed suit in district court; it is unclear whether he pursued ARB review.
BNSF moved to dismiss arguing waiver of the right to sue, on the theory Gunderson continued administrative proceedings after obtaining the 211th day right to sue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gunderson waived his right to sue by continuing in the administrative process.	Gunderson did not waive; statute grants de novo federal review if no final decision within 210 days.	Gunderson waived by pursuing further administrative review after the right attached.	No waiver; statutory right to de novo review remains.

Stone v. Instrumentation Laboratory Co., 591 F.3d 239 (4th Cir.2009) (recognizes potential duplication but upholds de novo review right when final decision not issued timely)
Groncki v. AT&T Mobility LLC, 640 F.Supp.2d 50 (D.D.C.2009) (final Secretary decision may have preclusive effect; supports de novo review framework)