Lee v. Norfolk S. Ry. Co., CIVIL CASE NO. 1:13cv4-MR-DSC

187 F.Supp.3d 623

Charles T. Lee, Plaintiff,

v.Norfolk Southern Railway Company, Defendant.

CIVIL CASE NO. 1:13cv4-MR-DSC

United States District Court, W.D. North Carolina, Asheville Division .

Signed May 11, 2016

Charles T. Lee, Asheville, NC, pro se.

William Cox Tucker, Jr., Maples, Tucker & Jacobs, LLC, Birmingham, AL, Rachel Scott Decker, Carruthers & Roth, PA, Greensboro, NC, for Plaintiff.

Max Daniel McGinn, Nicole A. Crawford, Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, Greensboro, NC, for Defendant.

MEMORANDUM OF DECISION AND ORDER

Martin Reidinger, United States District Judge

THIS MATTER is before the Court on remand from the Fourth Circuit Court of Appeals. [Doc. 47]. The appellate court vacated this Court's prior Order [Doc. 37] that granted summary judgment in favor of the Defendant, and remanded the matter to this Court for further consideration. [Doc. 47 at 26]. Specifically, this Court is directed to consider Defendant's "claim-splitting defense in the first instance on remand." [Id. at 25]. Further, because this Court initially addressed only one of the grounds asserted by the Defendant in its Motion for Summary Judgment [Doc. 23], the Court will consider whether judgment in favor of the Defendant is appropriate on any other ground it asserted.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff Charles T. Lee ("Lee") initiated this action on January 8, 2013. [Doc. 1]. Lee alleges that he was subjected to retaliation by Defendant Norfolk Southern Railway Company ("NS"), in violation of the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20109. Lee, who is African-American, worked for NS as a carman conducting safety inspections of railroad cars and locomotives. He asserts he was the unwarranted recipient of a six-month suspension from employment as retaliation for tagging too many railroad cars with "bad order" citations thus requiring their removal from service for repair. [Doc. 1 at 2].

Sixteen months prior to commencing this action, Lee filed a separate suit against NS in this Court, asserting an action for employment discrimination on the basis of race pursuant to 42 U.S.C. § 1981. Lee v. Norfolk S. Ry., No. 1:11cv245–MR–DCK, 912 F.Supp.2d 375 (W.D.N.C.2012) (the "First Lawsuit"). In the First Lawsuit, Lee asserted that he was suspended from work for six months as a result of abusive racial harassment, intimidation, and threats. [Doc. 24-3 at 8-9]. The Court granted NS's summary judgment motion in the First Lawsuit on December 12, 2012, and dismissed Lee's case. [Doc. 24-5]. Lee did not appeal the Court's dismissal order. Now, he asserts that the same six-month suspension occurred in retaliation for his reporting safety violations.¹ [Doc. 1 at 2].

Lee's position as a carman for NS brings with it the responsibility to conduct safety-related functions including the inspection and repair of railroad cars and locomotives. [Doc. 1 at 2]. When a carman, like Lee, finds a railroad car in need of repair, he is to place a "bad order" tag on the car setting forth any defect which directs the car to the repair shop. Such cars are then placed in "bad order" status and removed from service. [Id.].

Lee alleges in this matter that NS management, including management at the Asheville yard where he worked, maintained artificial "bad order" quotas and NS, therefore, did not want carmen like Lee to "bad order" a number of cars above a set threshold. [Id.]. According to Lee, NS pressured him not to "bad order" cars and further that NS management and employees removed "bad order" citations from cars Lee tagged for repair. [Id.]. Lee states that NS's pressure not to exceed the "bad order" quota, had he succumbed to it, would have required him to violate federal rail safety law and regulations as well as NS's own safety rules. [Id.]. Lee alleges he reported the foregoing acts and omissions to NS management and Equal Employment Opportunity personnel who took no action to stop or to remediate the same. [Id. at 3]. As a result, Plaintiff "claims that NS improperly suspended him for six months in 2011 as retaliation because he persistently placed ‘bad order’ tags on defective railcars." [Doc. 31 at 2 (footnote omitted) ].

On November 14, 2011, Lee filed a complaint with the Department of Labor's ("DOL") Occupational Safety and Health Administration ("OSHA") asserting the 49 U.S.C. § 20109 retaliation violation that forms the basis for this present action. [Doc. 1 at 4]. By letters dated January 19, 2012 [Doc. 51-2 at 2 to 4], and September 7, 2012 [Doc. 51-3 at 2], NS responded to Lee's OSHA complaint asserting that Lee previously had filed a lawsuit alleging the same harm based on other grounds. On September 21, 2012, the OSHA Area Director found that NS had not committed a retaliation violation under the FRSA. [Id.]. Lee objected to the OSHA Area Director's findings and requested a hearing before the DOL's Administrative Law Judge ("ALJ"). [Id.]. Because the Secretary of Labor, by and through his OSHA designee, had not yet issued a final decision within 210 days of Lee filing his OSHA complaint,² Lee notified the ALJ of his intent to file this action in this Court under the FRSA "kick-out" provision, 49 U.S.C. § 20109(d)(3). [Id.]. Meanwhile, on December 12, 2012, this Court granted NS's summary judgment motion in the First Lawsuit and dismissed that case. [Doc. 24-5]. Lee initiated the present action in this Court on January 8, 2013. [Doc. 1].

NS responded to Lee's Complaint in this matter by filing its Answer on February 25, 2013. [Doc. 7]. In its Answer, NS asserts as its Fourth Affirmative Defense that "Plaintiff is precluded from asserting or pursuing here one or more claims and/or issues under principles of collateral estoppel, issue preclusion, and/or res judicata as Plaintiff previously unsuccessfully asserted those claims and/or issues and they were determined against him in this Court." [Id. at 2]. Later in 2013, NS filed its Motion for Summary Judgment asserting several grounds. [Doc. 23]. NS's primary contention, as it was in the OSHA proceeding, was that Lee's present action is barred by the FRSA's election of remedies provision³ since Lee previously sued NS claiming protection under 42 U.S.C. § 1981 for the very same conduct he alleges in this FRSA lawsuit (i.e., the suspension). [Id. at 3]. This Court agreed that the FRSA's election of remedies section barred Lee's present action and granted judgment in favor of NS. [Doc. 37]. Lee appealed the Court's summary judgment order. [Doc. 39].

On appeal, the Fourth Circuit reversed. [Doc. 47]. The appellate court observed that in the First Lawsuit, the "allegedly unlawful act" was the suspension on the basis of race in violation of Section 1981 ; in the present lawsuit, the "allegedly unlawful act" was the suspension in retaliation for Lee's whistleblowing regarding rail safety violations. [Id. at 13]. Nevertheless, NS argued on appeal that FRSA's election of remedies provision should be read as a "de facto" substitute for the rule against claim-splitting, and thus prohibited Lee from dividing his claim into separate suits based on race discrimination and an OSHA violation. [Id. at 22]. The appellate court disagreed that the election of remedies provision and the rule against claim-splitting were functional equivalents. Having held that a suspension on the basis of race is not "the same allegedly unlawful act" as a suspension in retaliation for FRSA whistleblowing under the FRSA's election of remedies provision, the appellate court vacated this Court's judgment [Id. at 3] and directed this Court to address, on remand, NS's claim-splitting defense in the first instance. [Id. at 25].

On remand, the Court requested the parties file supplemental briefs. [Doc. 49]. The parties have done so [Docs. 50 & 51], and the matter is once again ripe for this Court's review.⁴

STANDARD OF REVIEW

The Defendant has filed its motion for summary judgment under Federal Rule of Civil Procedure 56 wherein it contends that there are no factual issues for trial and that judgment may be rendered as a matter of law based upon the record. Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the case." N & O Pub. Co. v. RDU Airport Auth., 597 F.3d 570, 576 (4th Cir.2010). A "genuine dispute" exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A party asserting that a fact cannot be genuinely disputed must support its assertion with citations to the record. Fed. R. Civ. P. 56(c)(1). "Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact." Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003). If this showing is made, the burden then shifts to the non-moving party who must convince the court that a triable issue exists. Id. Finally, in considering the Defendant's summary judgment motion, the Court must view the pleadings and materials presented in the light most favorable to the Plaintiff and must draw all reasonable inferences in the Plaintiff's favor as well. Adams v. UNC Wilmington, 640 F.3d 550, 556 (4th Cir.2011).

DISCUSSION

I. NS's Claim-Splitting Defense.

The rule against claim splitting is one of the principles inherent in the broad doctrine of res judicata. Nash County Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 490 (4th Cir.1981). For the doctrine of res judicata to be applicable, there must be: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two...