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Brisbois v. Soo Line Railroad Co.

United States District Court, D. Minnesota

December 22, 2016

LORI BRISBOIS, Plaintiff,
v.
SOO LINE RAILROAD COMPANY d/b/a CANADIAN PACIFIC, Defendant.

          James H. Kaster, Matthew H. Morgan, and Nicholas D. Thompson, NICHOLS KASTER, PLLP, for plaintiff.

          Tracey Holmes Donesky and Matthew Tews, STINSON LEONARD STREET LLP, for defendant.

          ORDER

          Patrick J. Schiltz United States District Judge.

         Plaintiff Lori Brisbois is a long-time employee of defendant Soo Line Railroad Company d/b/a Canadian Pacific (the “Railroad”). In 2012, the Railroad suspended Brisbois for five days without pay and restricted her seniority for one year. Brisbois contends that she was disciplined in retaliation for reporting a safety concern, and thus that the Railroad violated the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. The Railroad contends that Bribois was disciplined because she was argumentative and repeatedly defied the instructions of her supervisor.

         This matter is before the Court on the Railroad's motion for summary judgment. Because the evidence is clear that Brisbois was not disciplined for reporting a safety concern, the Railroad's motion is granted, and Brisbois's claim is dismissed.[1]

         I. BACKGROUND

         Brisbois was hired by the Railroad in 2006. Brisbois Dep. [ECF No. 59-2] at 56, 149. Since then, she has worked as a track laborer, track inspector, machine operator, assistant foreman, and foreman. Id. at 89, 91, 94-95, 71-102, 130. Brisbois has often brought safety concerns to the Railroad's attention. Id. at 231-32. She has never suffered any adverse consequence on account of raising those safety concerns; indeed, her supervisors rewarded her by offering to allow her to leave work early after she reported that another foreman had asked a machine operator to release a train without giving him the “slow order information that he needed.” Id. at 232-33.

         Brisbois's supervisors have, however, occasionally complained about her work. Id. at 166-69. Sometimes they have accused her of being late with her job briefings. Id. at 167. Other times they have said that she was “not doing enough.” Id. at 166-68. And in May 2012, Brisbois was issued a formal “positive action plan” for being “argumenta[tive]” and “insubordinate” and for “fail[ing] to comply with [her] supervisors['] instructions.” Id. at 170-72; Donesky Decl. Ex. M [ECF No. 59-13], at 1. Brisbois disputes the legitimacy of these complaints, but she does not deny that the complaints were made. See Brisbois Dep. 166-71, 180-82.

         On July 12, 2012, Brisbois was working as a foreman at a rail yard in St. Paul, Minnesota. Id. at 25-27. Her crew was scheduled to work on tracks 37 and 38, both of which were “protected”-meaning that the tracks were configured to prevent trains from coming onto them. Id. at 11-12, 189-90. The adjacent tracks (tracks 36 and 39) were, however, initially unprotected.[2] Id. at 32-36, 251-53. When Brisbois briefed her crew, she reminded them not to “foul” any unprotected tracks.[3] Donesky Decl. Ex. G [ECF No. 59-7], at 114; Donesky Decl. Ex. P [ECF No. 59-16], at 12. Specifically, she warned the crew members not to walk down or cross any unprotected tracks while carrying equipment or supplies. Brisbois Dep. 52-53, 219. Brisbois then left to lock out the west end of track 39. Donesky Decl. Ex. G, at 127-28.

         After Brisbois reached the west end of track 39, she noticed that part of her crew was walking down track 39, “carrying water, ice, tools, supplies, parts, clothing, lunchboxes, ” and other equipment. Brisbois Dep. 10, 13, 200, 219; see also Donesky Decl. Ex. G, at 127-28; Donesky Decl. Ex. P, at 12. Brisbois also saw a new employee, Dominic Lamana, wandering around on unprotected track 40.[4] Brisbois Dep. 16-18. Brisbois immediately stopped some of her crew members from “proceeding over the track.” Id. at 10, 199. Other crew members were too far away for her to stop, id., so she did the next best thing by quickly finishing the locking out of track 39. Id. at 48, 201. Brisbois then drove back to her crew and asked them why they had crossed track 39 without her permission. Id. at 205. The workers responded that Brisbois's boss, Kenneth Heath, had “told them to go to work.” Id. at 37, 161, 165, 207.

         Heath showed up a few minutes later, and Brisbois went to confront him. Id. at 207-09. At this point, Brisbois's crew members were no longer in danger, as all of them were working safely on protected tracks. Id. at 221-22. But Brisbois nevertheless wanted to talk to Heath about how he had “improperly permitted [her crew] to enter into tracks that had not been protected.” Id. at 296. To that end, she asked Heath-and continued to ask Heath-whether he thought what he had done was a “safety” concern. Id. at 210-13. Heath evaded the question. Heath denied ordering Brisbois's “whole” crew to go to work. Id. at 210. Heath asked Brisbois whether she had properly locked out tracks 37 and 38 the previous night. Id. at 213, 226. And Heath told Brisbois that she should have talked directly to Lamana if she was concerned for his safety. Id. at 222. The conversation continued like this for a while.

         Finally, Heath told Brisbois to stop arguing and go back to work. Id. at 214. Brisbois did not stop arguing and did not go back to work. Id. at 244-45. According to Brisbois, Heath did not tell her to stop talking, but to stop arguing. Id. Also according to Brisbois, she was not “arguing, ” but merely “asking for clarification.” Id. at 228. Thus, Brisbois contends, it was impossible for her to follow Heath's instruction, because she could not stop doing something that she was not doing in the first place. Id. at 245-46. (Brisbois does not explain why she could not follow Heath's instruction to go back to work.)

         Needless to say, Heath did not see things the same way. Two more times, Heath told Brisbois to stop arguing and warned her that, if she did not stop arguing and get back to work, he would send her home. Id. at 226-28, 245-47, 260-62. And two more times, Brisbois persisted in asking Heath whether he thought what he had ordered the crew to do was a safety concern. Id. After the third such exchange, Heath sent Brisbois home. Id. at 37. It was roughly 7:00 a.m. Id. at 38-39.

         One month later, the Railroad conducted a disciplinary hearing. Id. at 185. After taking testimony from Brisbois, Heath, and several other employees, the Railroad determined that Brisbois had violated Rules 1.6 and 1.13 of the General Code of Operating Rules. See Donesky Decl. Ex. BB [ECF No. 59-29]. Rule 1.6 prohibits employees from being “insubordinate, ”“quarrelsome, ” or “discourteous.” Donesky Decl. Ex. H [ECF No. 59-8], at 15. And Rule 1.13 generally requires employees to follow their supervisors' instructions. Brisbois Dep. 159-62. As punishment for these rule violations, Brisbois was suspended for five days without pay and her seniority was restricted for one year. Id. at 5-6, 271-72; Donesky Decl. Ex. BB. This lawsuit followed.

         II. STANDARD OF REVIEW

         Summary judgment is warranted “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 dispute over a fact is “material” only if its resolution might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute over a fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving ...


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