United States District Court, D. Minnesota
SCOTT A. LEMIEUX, Plaintiff,
SOO LINE RAILROAD COMPANY d/b/a Canadian Pacific Railway, Defendant.
W. Fuller, HUNEGS LENEAVE & KVAS, for plaintiff.
Holmes Donesky and Margaret M. Bauer Reyes, STINSON LEONARD
STREET LLP, for defendant.
MEMORANDUM OPINION AND ORDER
R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT
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.
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.)
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.
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).
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.)
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 ...