American Bar Association
Media Alerts
Media Alerts - Charles Lee v. Norfolk Southern Railway Co. -- Fourth Circuit
Decrease font size
Increase font size
October 6, 2015
  Charles Lee v. Norfolk Southern Railway Co. -- Fourth Circuit
Headline: Railroaded? The Federal Railroad Safety Act's Election of Remedies Provision

Issue Presented: Whether the Federal Railroad Safety Act's Election of Remedies Provision bars a plaintiff from seeking protection for alleged wrongful suspension under employment discrimination law and the Federal Railroad Safety Act's whistleblower protection provision for the same suspension.

Brief Summary: This case arises out of two lawsuits brought by Charles Lee against the Norfolk Southern Railway Company. Lee was employed by Norfolk Southern as a carman. As a carman, Lee was responsible for examining railcars for safety defects while in the rail yard. Lee's two lawsuits both involve Norfolk Southern suspending him for six months without pay. The company alleged that it did so because Mr. Lee drank while on duty and operated the company vehicle without authorization. Lee asserted in one lawsuit that his suspension was racially motivated and in the other that he was suspended in retaliation for refusing to violate a federal law. The District Court granted summary judgment to Norfolk Southern as to both lawsuits and the Fourth Circuit reversed.

Extended Summary: Charles Lee was formerly employed by Norfolk Southern as a carman. He brought two lawsuits against the company due to his six-month suspension without pay. He first brought an action in the Federal District Court for the District of North Carolina against Norfolk Southern under 42 U.S.C. § 1981 claiming his suspension was racially motivated. Specifically, Lee - who is African-American - alleged that his white counterparts were promoted and/or given opportunities that he was not; that his white supervisor also drank on the job but was not punished; and that his co-workers made racially charged and intimidating threats (including placing a noose in his locker). This case was dismissed by the District Court because Lee did not follow the arbitration procedure required by the collective bargaining agreement nor was Norfolk Southern Railway liable for the independent actions of its employees (pertaining to the racially-charged threats).

Shortly thereafter, Lee brought a second suit in which he alleged his suspension was in retaliation for refusing to comply with company orders not to follow a federal law. Specifically, Lee claimed that as a carman, he was required to report each instance a railcar had a safety defect. He stated that Norfolk Southern limited the amount of cars he could designate as defective, a violation of the Federal Railroad Safety Act ("FRSA"), and his refusal to comply with the caps was the reason he was suspended. He initially filed this complaint with the Occupational Safety and Health Administration ("OSHA") Board, claiming whistleblower protection violations. That complaint was dismissed by the OSHA Board and he then filed it in Federal District Court under a "kick-out" provision. He filed this suit entirely separately from the § 1981 racial discrimination claim. The Federal District Court for the District of North Carolina granted summary judgment to Norfolk Southern because a specific provision, the Election of Remedies Provision, of the FRSA barred the suit. That provision bars employees from seeking protection under this section and another provision of law for the same allegedly unlawful act. The District Court interpreted that to mean that because he sought protection under § 1981 for the allegedly unlawful suspension, the Election of Remedies Provision barred his suit under the FRSA whistleblower protection provision.

Upon review, the U.S. Court of Appeals for the Fourth Circuit endeavored to interpret the meaning of the Election of Remedies Provision to determine if the trial court was correct in its ruling. Using basic principles of statutory interpretation, the Fourth Circuit concluded that the District Court erred in granting summary judgment to Norfolk Southern. Specifically, the court agreed with Lee's assertion that the Election of Remedies Provision did not apply because being suspended due to race and being suspended as retaliation for complying with federal law constituted different unlawful acts.

This was the first time the Fourth Circuit interpreted this provision of the FRSA. Going forward, employees suspended or terminated may not be barred by the Election of Remedies Provision from bringing suits based on the same act that is rendered different due to violation of two or more federal laws. The Fourth Circuit ultimately reversed the District Court and remanded for further proceedings.

To read the full opinion, click here.

Panel: Judges Niemeyer, Diaz, and Floyd

Argument Date: 05/12/2015

Date of Issued Opinion: 09/18/2015

Docket Number: No. 14-1585

Decided: Reversed and Remanded by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: William Cox Tucker, Jr., MAPLES TUCKER & JACOBS, Birmingham, Alabama, for Appellant. John Bruce Lewis, BAKER & HOSTETLER LLP, Cleveland, Ohio, for Appellee. Donald J. Munro, JONES DAY, Washington, D.C., for Amicus Association of American Railroads. Rachel Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. ON BRIEF: Rachel S. Decker, CARRUTHERS & ROTH P.A., Greensboro, North Carolina, for Appellant. M. Daniel McGinn, Nicole A. Crawford, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina; Dustin M. Dow, BAKER & HOSTETLER LLP, Cleveland, Ohio, for Appellee. M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, William C. Lesser, Deputy Associate Solicitor, Megan E. Guenther, Counsel for Whistleblower Programs, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. Louis P. Warchot, Daniel Saphire, ASSOCIATION OF AMERICAN RAILROADS, Washington, D.C.; Ronald M. Johnson, M. Carter DeLorme, JONES DAY, Washington, D.C., for Amicus Association of American Railroads.

Author of Opinion: Judge Floyd

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/06/2015 03:08 PM     4th Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top