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Lemieux v. Soo Line Railroad Co.

United States District Court, D. Minnesota

August 16, 2017

SCOTT A. LEMIEUX, Plaintiff,
SOO LINE RAILROAD COMPANY d/b/a Canadian Pacific Railway, Defendant.

          Thomas W. Fuller, HUNEGS LENEAVE & KVAS, for plaintiff.

          Tracey Holmes Donesky and Margaret M. Bauer Reyes, STINSON LEONARD STREET LLP, for defendant.



         Plaintiff Scott Lemieux brought this action against his former employer Soo Line Railroad Company d/b/a Canadian Pacific Railway (“CP”), alleging CP violated the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109, when it retaliated against him after he raised safety concerns. CP filed a motion under Fed.R.Civ.P. 12, or alternatively Fed.R.Civ.P. 56, to dismiss all new claims and allegations in the Amended Complaint. CP argues the claims and allegations should be dismissed because Lemieux did not raise them before the Occupational Health and Safety Administration (“OSHA”). For the reasons set forth below, the Court will grant in part and deny in part CP's motion.


         Lemieux worked as a conductor for CP from 2008 until his termination in April 2015. (Am. Compl. ¶ 45, Nov. 22, 2016, Docket No. 21; Decl. of Tracey Holmes Donesky (“Donesky Decl.”), Ex. A (“OSHA Compl.”) ¶ 5, Dec. 6, 2016, Docket No. 27.) As set forth in the Amended Complaint, Lemieux asserts he made good faith reports of hazardous and unsafe brakes on railroad cars to CP and suffered adverse employment actions in the form of investigations, a five-day suspension, and, ultimately, termination. (Am. Compl. ¶¶ 50-56.)

         Lemieux initially sought relief under FRSA by initiating a charge with OSHA alleging adverse employment actions in the form of “notice[] to attend an investigation, ” “a five day suspension, ” and “his firing.” (OSHA Compl. ¶¶ 27, 37.) In the OSHA Complaint, Lemieux made a number of specific allegations regarding an incident that occurred on February 12, 2015. On that date, Lemieux determined the handbrakes on fifty-six railroad cars “were in violation” of certain safety standards. (Id. ¶¶ 8-9.) Lemieux reported the violations and, when the trainmaster arrived, the trainmaster found the cars safe to travel. (Id. ¶¶ 11, 13, 16.) Following an investigation into the incident, CP sent Lemieux a letter stating Lemieux “was found in violation” of certain rules regarding delays and was “assessed a 5 day suspension from service.” (Id. ¶ 18, 21.) Lemieux characterized this event as “result[ing] in, ” “contribut[ing] in part to, ” or “a contributing factor” in Lemieux's ultimate termination. (Id. ¶¶ 21, 27, 37, 43.) The OSHA Complaint did not set forth any specific allegations regarding a separate incident that allegedly occurred on March 4, 2015.

         OSHA never commenced an investigation. (Aff. of Thomas W. Fuller ¶ 4, Dec. 27, 2016, Docket No. 34.) After more than 210 days passed - as required by 49 U.S.C. § 20109(d)(3) - Lemieux informed OSHA that he would file a complaint in federal district court. (Id., Ex. 2.) In response, OSHA dismissed the OSHA Complaint, (see id., Ex. 1), and Lemieux initiated this matter, (see Compl., June 1, 2016, Docket No. 1).

         Like the OSHA Complaint, Lemieux's first Complaint focused on events that occurred on February 12, 2015. (Id. ¶¶ 7-35.) Lemieux also alleged that he received a letter on March 6, 2015, finding him guilty of violating CP's work rules and suspending him for five days. (Id. ¶¶ 37-38.) The Complaint asserted that because Lemieux reported the “unsafe and hazardous brakes, Mr. Lemieux became a targeted employee and on April 13, 2015, [CP] unlawfully terminated [him].” (Id. ¶ 41.) Lemieux asserted that CP violated FRSA in two ways: (1) unlawful retaliation under section 20109(b)(1)(A) for reporting, in good faith, a hazardous safety condition on February 12, 2015; and (2) unlawful retaliation under section 20109(b)(1)(C) for punishing Lemieux for his good-faith refusal to authorize the use of safety-related equipment when Lemieux believed the equipment was in a hazardous condition. (Id. ¶¶ 44-60.) In retaliation for Lemieux's protected activity, the Complaint alleged CP investigated Lemieux, suspended him for five days, and ultimately terminated him. (Id. ¶¶ 49, 59.)

         On September 30, 2016, Lemieux filed a motion for leave to amend the Complaint. (Pl.'s Mot. for Leave to Amend Compl., Sept. 30, 2016, Docket No. 12.) As part of the motion, Lemieux sought to make minor word changes and to add factual allegations related to another incident of protected activity on March 4, 2015. Lemieux requested leave to insert the following five paragraphs:

42. On March 10, 2015 [CP] sent . . . Lemieux another disciplinary charge notice ordering him to appear for another formal investigation. This investigation was over an alleged failure to perform a roll by inspection of CP trains 497-03 and 198-28 and further delay of his assigned CP train 550-662 occurring on March 4, 2015.
43. On March 4, 2015, however, . . . Lemieux did not fail to perform the roll by inspections as claimed and any alleged delay (which there was none) was caused in whole or in part by defective and hazardous brakes discovered on . . . Lemieux's assigned CP train 550-662, which . . . Lemieux again reported in good faith to CP.
44. On March 31, 2015 and continuing on April 3, 2015, after several postponements, [CP] conducted its second investigative/retaliatory hearing where it charged . . . Lemieux with discipline despite his good faith reports of defective and hazardous brakes on his assigned train.
45. On April 13, 2015, following [CP's] previous investigations and despite . . . Lemieux's good faith reports of defective and hazardous brakes occurring on February 12 and March 4, 2015, . . . Lemieux received a letter from [CP] wrongfully terminating ...

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