ORDER
Plaintiff Lori Brisbois brought this action against her employer, defendant Soo Line Railroad Company d/b/a Canadian Pacific (“CP”), alleging that CP violated the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109, when it retaliated against her in various ways after she raised safety concerns. This matter is before the Court on CP’s motion to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction and under Fed. R.Civ.P. 12(b)(6) for failure to state a claim. For the reasons that follow, CP’s motion is granted in part and denied in part.
I. BACKGROUND
Brisbois has been employed by CP since April 2006 as a laborer, track inspector, and foreman. , Gompl. ¶2. Brisbois is a .member of the Brotherhood оf Maintenance of Way. Employees -.Division (“the Union”). Id. A collective bargaining agreement (“CBA”) between the Union and CP governs the terms and conditions of Brisbois’s employment.
On July 12, 2012, Brisbois was working as the foreman of a crew at CP’s rail yard in St. Paul, Minnesota. Id. ¶ 6. Her crew was working on two tracks, both of which were “protected”—that is, configured so that a train could not come onto the tracks while the crew was working. See id. ¶¶ 8, 10, 11. The adjacent tracks, however, were “live”—that is, not protected. See id. ¶¶ 9,11.
After being briefed regarding the hazards at the St. Paul yard that day, Ken Heath, a supervisor, gave permission to several of Brisbois’s crew members to walk on the adjacent live tracks' “as long as they, were careful.” Id. ¶¶ 12, 14. Brisbois saw at least one crew member walking on one of the live tracks. Id. 1f 15. She. immediately secured protection for the track and then confronted Heath about her safety concerns. Id. ¶¶ 16,17. Heath “accused [Brisbois] of being argumentative and sent her home.” Id. ¶ 18.
Brisbois was then charged with “being quarrelsome and not following instructions,” in violation of CP’s rules. Id. ¶ 19. On August 30, 2012, after a disciplinary, hearing (also called an “investigation hearing”), CP found that Brisbois had violated its rulés and disciplined her by suspending her for five days and restricting her seniority as a foremаn for one year. Id. ¶23. Brisbois alleges that CP also denied her pay and mileage reimbursements to which she was entitled for attending the disciplinary hearing. Id. ¶25.' Brisbois also allegés that in the ensuing months CP denied her “several assistant foreman and related positions that she was qualified for.” IdLU 24.
On October 18, 2012, Brisbois’s car was damaged while she was at work. See id. 1126. The car was parked “in a' parking area with limited access and no real reason for non-railroad employees to be.”
Brisbois alleges that, from April 2 to April 4, 2013, CP “refused to permit [her] to return to work” after a brief medical absence, even though she had been medically cleared to return. See id. ¶28. Brisbois also alleges that after she contacted OSHA, CP “subjected [her] to additional allegations of rule violations” and conducted a disciplinary hearing on those allegations, “further denied [her] meal and other reimbursements,” and “continued to deny [her] assistant foreman and related positions.” Id. ¶¶ 29-31.
As noted, Brisbois contacted OSHA in January 2013 to complain оf CP’s alleged retaliation. The OSHA investigator to whom she spoke mistakenly told her that her complaint appeared to be untimely. Id. ¶ 32. Brisbois alleges that she nevertheless wanted to pursue her complaint, but the OSHA investigator mistakenly concluded that she wanted to drop the matter. Id. OSHA confirmed its (mistaken) conclusion in a letter to Brisbois on January 18, 2013. Id. The letter stated that, because Brisbois did not want to pursué her compliant, “OSHA was taking no further - action regarding [Brisbois]’s allegations.” Id. Brisbois appealed this letter to an Administrative Law Judge (“ALJ”). Id. ¶ 33. The ALJ dismissed her appeal without prejudice because an initial OSHA investigation—a prerequisite to a hearing before an ALJ—had not been conducted. Id. ¶34. Brisbois then filed an “Amended Complaint” with OSHA on April 15, 2013; this document was, in fact, her first writ-' ten complaint. Id. ¶ 35.
The Amended Complaint included six allegations of retaliation. Brisbois alleged that CP retaliated against her (1) when CP suspended her for five days and restricted her seniority for one year; (2) when CP did not pay her or reimburse her mileage when she attended the disciplinary hearing; (3) when “agents” of CP damaged her car; (4) when CP refused to allow her to return to work for three days in April 2013; (5) when CP “initiate[d] a disciplinary investigation” against her on unrelated charges; and (6) when CP denied hеr “a per diem meal allow[an]ce of $25.75.” ECF No. 22-6 at 3-4. On September 10, 2013, OSHA issued its findings, concluding that “there is no reasonable cause to believe” that Brisbois “was discriminated against in reprisal for raising safety concerns.” See ECF No. 22-5 at 2.
On January 29, 2015, Brisbois notified the ALJ of her intent to terminate the administrative proceedings and litigate instead in federal court. Compl. ¶ 36; see 49 U.S.C. § 20109(d)(3). Brisbois then filed this action alleging that CP retaliated against her for raising safety concerns to Heath on July 12, 2012, Compl. ¶ 43, and for complaining to OSHA in January 2013, see id. ¶ 45.
II. ANALYSIS
The FRSA prohibits rail carriers from retaliating against employees who engage in protected activity, which includes reporting a safety concern to a rail carrier
CP brought this motion to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. CP argues that the Court lacks jurisdiction because Brisbois’s claims are subject to mandatory arbitration.- CP further argues- that Brisbois’s claims otherwise fail because her complaint to OSHA was not timely, she did not exhaust her administrative remedies, and her claims were insufficiently pleaded..
A Standard of Review
In ruling on a motion to dismiss for lack of subject-matter jurisdiction, a court is free to weigh the evidence and decide whether that evidence establishes that it has jurisdiction. See Osborn v. United States,
Ordinarily, if the parties present, and the court considers, matters outside of the pleadings, a Rule 12(b)(6) motion must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d). But the court may consider exhibits attached to the complaint and documents that are necessarily embraced by the complaint without converting the motion into one for summary judgment. See Mattes v. ABC Plastics, Inc.,
B. Subject-Matter Jurisdiction
CP argues that the Court lacks subject-matter jurisdiction over Brisbois’s claims because her claims are governed by the Rаilway Labor Act (“RLA”), 45 U.S.C. §§ 151 et seq. In order “to promote stability in labor-management relations,” the RLA mandates that certain disputes between rail carriers and their employees be arbitrated, not litigated. See Hawaiian Airlines, Inc. v. Norris,
By contrast, if a claim seeks to “enforce rights that are independent of the CBA,” then the RLA does not apply and the courts have jurisdiction. Evermann,
Here, the Court lacks jurisdiction over four of Brisbois’s claims because they are dependent on the CBA and thus subject to mandatory arbitration under the RLA. These include Brisbois’s claims involving (1) the denial of several assistant-foreman and related positions, (2) the denial of pay and mileage reimbursеments for attending the disciplinary hearing, (3) the denial of meal and other reimbursements, and (4) the continued denial of assistant-foreman and related positions. To know whether CP retaliated against Brisbois by denying these reimbursements and positions, the Court would have to determine whether Brisbois was entitled to these reimbursements and positions; obviously, an employer does not violate the FRSA by denying an employee something to which she had no right in the first place. And the only source of any entitlement to these reimbursements and positions would be the CBA. Brisbois has not identified anything outside of the CBA that would give her the right to be paid for timе at a disciplinary hearing, or to be reimbursed for mileage for attending a disciplinary hearing, or to be reimbursed for meals or other work-related expenses, or to be selected to fill openings for particular assistant-foreman positions. It would thus be impossible for the Court to adjudicate Brisbois’s claims without interpreting the provisions of the CBA—provisions that, according to Brisbois, entitled her to these reimbursements and positions and that, according to CP, created no such entitlement. See Evermann,
The remaining four claims in Brisbois’s complaint appear to be independent of the CBA and thus not subject to mandatory arbitration under the RLA. These, include the claims involving Brisbois’s five-day suspension and one-year seniority restriction, the damage to her car, the refusal to let her return to work for three days in April 2013, and the additional allegations of rule violations. To resolve these retaliation claims, the Court will primarily address “purely factual questions” about Brisbois’s conduct and CP’s motivations.
C. Timeliness
The FRSA requires an employee alleging retaliation to file a cоmplaint with OSHA within 180 days of the employer’s alleged retaliatory act. 49 U.S.C. § 20109(d)(2)(A)(ii). CP argues that Brisbois’s claims are time-barred because her written complaint (which Brisbois labeled as an “Amended Complaint”) was not filed until April 15, 2013, which was after the 180-day limit expired. Brisbois disagrees and contends that she filed a complaint with OSHA by phone on January 11, 2013, which was within the 180-day limitations period. See Compl. ¶ 27.
There is no dispute that Brisbois contacted OSHA by phone on January 11, 2013 to complain about alleged retaliation by CP. CP insists, though, that Brisbois’s phone call does not qualify as a filed complaint because OSHA mistakenly told her that her complaint was untimely, mistаkenly believed that she no longer wanted to pursue the complaint, and mistakenly failed to reduce Brisbois’s complaint to writing as required by 29 C.F.R. § 1982.103(b) (“Oral complaints will be reduced to writing by OSHA.”).
. This hardly seems fair—and it is not the law. The governing regulations are clear that complaints may be filed with OSHA over the phone. See 29 C.F.R. § 1982.103(b), When an employee files an oral complaint, “[t]he date of the ... telephone call .,. will be considered the date of filing.” 29 C.F.R. § 1982.103(d). Brisbois’s oral complaint on January 11, 2013, was within 180 days of the earliest alleged act of retaliation (the five-day suspension and one-year seniority restriction impоsed on August 30, 2012).
D. Exhaustion
The FRSA requires that, before an employee can sue her employer for a violation of the FRSA, the employee must exhaust her administrative remedies by filing a complaint with OSHA. See 49 U.S.C. § 20109(d). The purpose of this exhaustion requirement is to give OSHA the first opportunity to investigate and resolve the claim. See Parisi v. Boeing Co.,
Separate and distinct incidents of retaliation that were not alleged in an administrative complaint are not deemed to be exhausted, see Tart v. Hill Behan Lumber Co.,
CP argues that three of Brisbois’s claims must be dismissed because she failed to exhaust her administrative remedies by first presenting these claims to OSHA. These include Brisbois’s claims for: (1) the denial of “other reimbursements,” (2) the denial of several assistant-foreman and related positions, and (3) the continued denial of assistant-foreman and related positions.
Brisbois’s administrative complaint detailed discrete and highly specific incidents of alleged retaliation. For example, she alleged that “[o]n or about September 17, 2012,” she was informed that “she would be paid for straight time for attending the August 17, 2012 disciplinary hearing, instead of the normal overtime,” and that “she would not receive the normal compensation for her mileage to attend the hearing.” Am. Compl. ¶6. She also alleged that “[o]n or about April 5, 2013,” she was denied “a per diem meal allow[an]ce of $25.75.” Id. ¶ 11. There is no hint in
Brisbois argues that her new claims are not new, but rather prеsent “more particularized details and allegations.” Pl.’s Resp. 23. The Court disagrees. Brisbois’s claim in this lawsuit for “other reimbursements” is less, not more, “particularized” than the very specific claims for pay, meal, and mileage reimbursements listed in her administrative complaint. And, as just noted, Brisbois’s administrative complaint said nothing about being denied an assistant-foreman or related position in retaliation for her protected conduct; when she made that allegation in this lawsuit, she was making a new allegation, not a more particularized allegation. See Parisi,
Brisbois points out that her administrative complaint did accuse CP of retaliating against her in August 2012 when it restricted her seniority as a foreman for one year. See Compl. ¶ 23. That is true, and to the extent that Brisbois is complaining in this lawsuit about losing “assistant foreman and related positions” because of the one-year restriction on her seniority, she has exhausted her administrative remedies. But the Court understands Brisbois to be alleging that, during the year that her seniority was restricted, CP denied her assistant-foreman positions to which she was entitled despite having her seniority as a foreman restricted—and to be further alleging that CP continued to deny her assistant-foreman and related positions after the restriction on her seniority had ended. See id. ¶ 24 (“Subsequently, Defendant denied Plaintiff several assistant foreman and related positions that she was qualified for, even after her seniority restriction ended.” (emphasis added)). Brisbois did not reasonably put OSHA (or CP) on notice that Brisbois was accusing CP of retaliating by denying her these positions; indeed, at the time that she filed her complaints (in January and April 2013), she was still on restriction, and thus she could not possibly have included in her complaints any claim about the post-restriction denial of positions.
In sum, Brisbois failed to exhaust her claims that CP retaliated against her by denying “other reimbursements,” by denying several assistant-foreman and related positions, and by continuing to deny assistant-foreman and related positions. If these claims had not already been dismissed for lack of jurisdiction, the Court would dismiss them for failure to exhaust administrative remedies.
E. Failure to State a Claim
To this point, the Court has dismissed three of Brisbois’s claims—her claims regarding the denial of “other reimbursements,” the denial of assistant-foreman and related positions, and the continued denial of assistant-foreman and related positions—both because those claims must be arbitrated under the RLA and because Brisbois failed to exhaust her administrative remedies. The Court has dismissed another of Brisbois’s claims—her claim regarding the denial of pay, mileage, and meal reimbursements—because that claim must be arbitrated under the RLA. That leaves four claims: Brisbois’s claims regarding (1) the five-day suspension and one-year restriction of seniority rights; (2) the damage to her car; (3) the refusal to allow her to return to work for three days in April 2013; and (4) the additional allegations of rule violations and subsequent dis
To establish a prima facie case of retaliation under the FRSA, Brisbois must show: (1) that she engaged in protected activity; (2) that CP knew that she had engaged in protected activity; (3) that she suffered an adverse employment action; and (4) that “the circumstances raise an inference that the protected activity was a contributing factor in the adverse action.” Kuduk v. BNSF Ry. Co.,
Brisbois claims that CP retaliated against her when it damaged her car. Brisbois alleges that her “car was damaged ... in a parking area with limited accеss and no real reason for non-railroad employees to be.” Compl. ¶ 26. She alleges that “[u]pon information and belief, agents acting on behalf of [CP] caused the damage to [her] car.” Id. ¶ 26; see also id. ¶ 44. These allegations are sufficient— if barely—to plausibly plead a claim of retaliation under the FRSA and to give CP fair notice of the claim against it. See Iqbal,
The same is true for Brisbois’s claim that CP retaliated against her when it refused to allow her to return to work for three days in April 2013. Brisbois alleges that in retaliation for her contacting OSHA in January 2013, CP “refused to permit [her] to return to work on April 2 through April 4, 2013, despite that [she] had medical clearance to return from a brief absence.” Compl. ¶ 28; see also id. ¶ 46. Again, Brisbois has plausibly alleged a prima facie case of retaliation and given CP fair notice of the claim against it.
Finally, Brisbois claims that CP retaliated against her when it “subjected [her] to additional allegations of rule violations, and conducted an investigation related to the additional allegations.” Compl. ¶¶ 29, 46, Brisbois was not actually disciplined in connection with these alleged violations. See Pl.’s Resp. 26. She argues,
The FRSA provides that “[a] railroad carrier ... shall not discharge, demote, suspend, reprimand, or in any other way discriminate against, including but not limited to intimidating, threatening, restraining, coercing, blacklisting, or disciplining an employee for [engaging in protected conduct].” 29 C.F.R. § 1982.102(b)(2)(i). The courts characterize these as “adverse employment actions”—the same term used in retaliation cases ' brought under Title VII and other federal statutes. ' See, e.g., AuBuchon v. Geithner,
Under the anti-retaliation provisions of Title VII, an “adverse employment action” is “action that ‘might have dissuaded a reasonable worker from [engaging in protected activity under Title VII].”’ AuBuchon,
Brisbois argues that a broader range of negative consequences should qualify as adverse employment actions under the FRSA than under Title VII because, as a general matter; the FRSA “provides great- ' er employee protection and, thus, prohibits more employer conduct than Title VII.”
Brisbois points to two district-court cases in support of her argument that an employee has suffered an adverse employment action when she has been accused of violating a rule, even if she is later exonerated in a disciplinary hearing. But these eases are distinguishable. The first case,
To hold that a rail worker suffers an adverse employment action any time a rail carrier attempts to determine whether she has violated a rule—typically by following an investigatory process mandated under a CBA—would have major implications for labor relations in the rail industry. In the absence of persuasive authority suggesting that an employee who has not been disciplined can nevertheless recover for retaliation under thе FRSA because she was accused of violating a workplace rule, the Court is unwilling to stretch the FRSA so far. The Court therefore dismisses Brisbois’s claim that CP retaliated against her by accusing her—and later exonerating her—of additional rule-violations.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT defendant’s motion to dismiss [ECF No. 10] is GRANTED IN PART AND DENIED IN PART as follows:
1. Defendant’s motion to dismiss under Fed.R.Civ.P. 12(b)(1) is GRANTED-as to plaintiffs claims for:
a. the denial of several assistant-foreman and related positions;
b. the denial of pay and mileage reimbursements;
c. the denial of meal and other reimbursements; and
d. the continued denial of assistant-foreman and related positions. Those claims are DISMISSED WITHOUT PREJUDICE.
2. Defendant’s motion to dismiss undеr Fed.R.Civ-.P. 12(b)(6) is GRANTED as to plaintiffs claim for the additional allegations of rule violations and subSequent disciplinary hearing. That claim is DISMISSED WITH PREJUDICE AND ON THE MERITS. ■
3. Defendant’s motion to dismiss is DENIED as to plaintiffs claims for:
a. the five-day suspension and one-year seniority restriction;
b. the damage to plaintiffs car; and
c. the refusal to allow plaintiff to return to work for three days in April 2013.
Notes
. It appears from materials outside of the pleadings that Brisbois's car was damaged in Kenosha, Wisconsin—approximately 350 miles from St, Paul—while she was working
. At the beginning of her complaint, Brisbois says that she is making claims for both retaliation and discrimination. Compl. ¶ 1. But the allegations in her complaint and the argumеnts in her brief were focused entirely on retaliation; no mention is made of discrimination. If Brisbois intends to bring a separate claim for discrimination, her claim has not been sufficiently pleaded.
. An .administrative - tangle then ensued: OSHA sent a letter to Brisbois summarizing its (mistaken) conclusions from the phone conversation; Brisbois appealed the letter to the ALJ and requested a héaring; the ALJ dismissed her appeal without prejudice because OSHA had not conducted an investigation (because it had mistakenly concluded that Brisbois did not want to pursue her complaint); and OSHA finally treated Brisbois's initial phone call аs the date of filing and conducted- an investigation, which resulted in a finding that CP had not retaliated against Brisbois,
. The 180-day limitation runs from the date of CP’s allegedly retaliatory act—i.e., the date it violated the FRSA. See 29 C.F.R. § 1982.103(d) (explaining that the time for filing a complaint is ''[w]ithin 180 days after an alleged violation of ... FRSA " (emphasis added)). Here, the date of the earliest alleged violation of the FRSA is the date that Brisbois was suspended and her seniority restricted— not the date that Brisbois engaged in protected activity, as CP appears to argue. See Def.’s Br. 20.
. The Court has already held that it does not have jurisdiction over these claims because they are subject to mandatory arbitration under the RLA. For the sake of completeness, however, the Court will also address Brisbois’s failure to exhaust her administrative remedies.
. CP relies on documents that were neither attached to nor necessarily embraced by the complaint—such as a police report—and argues, in essence, that in light of these documents it is not "plausible” to believe that CP had anything to do with the damage to Brisbois’s car. But the Court may not consider "matters outside the pleadings,” unless it wants to treat CP’s motion to dismiss under Rule 12(b)(6) as a motion for summary judgment under Rule 56. See Fed.R.Civ.P. 12(d).
The Court does not want to treаt CP’s motion as a summary-judgment motion—nor, as a general matter, does the Court want to hear summary-judgment motions until discovery has closed. Although it is true that "documents ‘necessarily embraced by the complaint’ are not matters outside the pleading,” Enervations, Inc. v. Minn. Mining & Mfg. Co.,
. CP does not seriously argue otherwise, but again relies on documents that were neither attached to nor necessarily embraced by the complaint and argues that in light of these documents, Brisbois’s claim is not “plausible.” The Court reminds CP that Twombly and Iqbal focus on the allegations in the complaint and ask whether, on their face, those allegations make out a plausible claim. Twombly and Iqbal should not be used as an excuse to bring two rounds of summary-judgment motions—one de facto, one de jure—in every case.
. For example, the FRSA requires that protected activity merely be a "contributing factor” to the adverse employment action, . whereas Title VII requires a "causal connection” between the protected activity and the adverse employment action. 'See Kuduk,