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Lemieux v. Soo Line Railroad Co.

United States District Court, D. Minnesota

October 15, 2018

SCOTT A. LEMIEUX, Plaintiff,





         Plaintiff Scott A. Lemieux, a train conductor, brings this action against his former employer, Soo Line Railroad Company, doing business as Canadian Pacific Railway (“CP”), alleging that CP violated his rights under the Federal Railroad Safety Act (“FRSA”) by retaliating against him for protected activities. Lemieux alleges that he made good faith reports of hazardous and unsafe brakes and, as a result, suffered adverse employment actions in the form of investigations, a five-day suspension, and, ultimately, termination. Presently before the Court are the parties' cross-motions for summary judgment. Because genuine disputes of material fact remain as to all issues, the Court will deny both motions.



         CP provides freight rail transportation in Minnesota and other Midwest states. (Decl. of Amanda Cobb (“Cobb Decl.”) ¶ 3, Mar. 30, 2018, Docket No. 108.) Lemieux worked as a unionized conductor for CP from May 2008 until his dismissal in April 2015. (Decl. of Thomas W. Fuller (“Fuller Decl.”) ¶ 3, Ex. 11 at 38, 40, Mar. 30, 2018, Docket No. 105.) Conductors are required to oversee and maintain the car portion and movement of the train. (Decl. of Tracey Holmes Donesky (“Donesky Decl.”) ¶ 2, Ex. A (“Lemieux Dep.”) at 34, Mar. 30, 2018, Docket No. 159.) They also perform inspections. (Id.) Lemieux recognizes that being a conductor is a “safety sensitive” job. (Id.)

         A. CP's Operating Rules and Instructions

         Lemieux acknowledges that he was required to know, understand, and comply with CP's General Code of Operating Rules (“GCOR”), (id. at 35), which include the following:

1.1Safety Safety is the most important element in performing duties. . . .
1.1.1 Maintaining a Safe Course In case of doubt or uncertainty, take the safe course.
1.29 Avoiding Delays Crew members must operate trains and engines safely and efficiently. All employees must avoid unnecessary delays.
1.4 Carrying Out Rules and Reporting Violations Employees must . . . report any condition or practice that may threaten the safety of trains, passengers, or employees . . . .
6.29.1 Inspecting Passing Trains Employees must inspect passing trains. If they detect any of the following conditions, they must notify crew members on the passing train by any available means . . . . When a train is stopped and is met or passed by another train, crew members must inspect the passing train.

(Donesky Decl. ¶ 7, Ex. F at 23, 24, 26, Mar. 30, 2018, Docket No. 158; Decl. of Thomas W. Fuller in Opp. to CP's Mot. for Summ. J. (“2d Fuller Decl.”) ¶ 3, Ex. 30 at 1, Apr. 20, 2018, Docket No. 211.)

         GCOR 6.29.1 refers to “roll-by” inspections. (Lemieux Dep. at 45.) Lemieux was aware of the roll-by requirements and responsible for performing roll-by inspections. (Id. at 35, 45.) He describes roll-by inspections as follows: “you're . . . on the ground and looking at trains that are passing by for any fatigue with any of the cars, any mechanical issues, any safety issues or anything like that that need[s] to be brought to the attention of the . . . passing train.” (Id. at 35.)

         Conductors must also understand and apply CP's General Operating Instructions (“GOI”), which includes a rule regarding brake shoes:

1.8 Brake Shoes
Car brake shoes will be removed when they reach the following indicated thickness, measured at the thinnest point of the shoe:
Shoe Type
Freight Service
Cast Iron
1/2 inch
3/8 inch (including backing)

(Donesky Decl. ¶ 8, Ex. G at 33, Mar. 30, 2018, Docket No. 158.) Lemieux says that he was aware of this rule but was never trained on it. (Lemieux Dep. at 46.)[1]

         B. CP's Discipline Policy

         CP's U.S. discipline policy in place at the time of Lemieux's termination states: “Infractions will be dealt with using progressive discipline, unless they warrant outright dismissal.” (Cobb Decl. ¶ 4, Ex. B at 23, March 30, 2018, Docket No. 109.) According to this progressive discipline policy, a first infraction results in a 5-day unpaid suspension, a second infraction results in a 10-day unpaid suspension, a third infraction results in a 30-day unpaid suspension, and a fourth infraction results in dismissal. (Id.) However, the policy also states that, “[d]epending on the gravity of the situation and the specific circumstances, a 10 or 30 day suspension (or dismissal) may be assessed for the first infraction.” (Id.) The policy contains a non-exhaustive list of situations that might warrant immediate dismissal. (Id. at 24.)

         C. Lemieux's Prior Performance Issues

         In February 2013, Lemieux was noticed for a Collective Bargaining Agreement (“CBA”) hearing regarding a rule violation by his crew. (Lemieux Dep. at 49.) The hearing was canceled when the crew's engineer accepted responsibility for the violation, but Lemieux received informal counseling and was required to attend briefings. (Id. at 49-50.) In January 2015, Lemieux received a notice that he was “in violation of the T&E Availability Standard” because he was absent (reported as “sick”) on December 23 and 24, 2014. (Donesky Decl. ¶ 10, Ex. I at 35, Mar. 30, 2018, Docket No. 158.) CP informed him that his attendance issues were “being monitored” and would be “handled consistent with the enclosed Availability Standard and U.S. Discipline Policy 5612” and that “[f]uture infractions could result in discipline up to and including dismissal.” (Id.)

         D. First Alleged Protected Activity: Brake Report (February 12, 2015)

         1. Report

         On February 12, 2015, Lemieux reported: (1) brakes for being too thin in violation of GOI 1.8, and (2) a severely leaking air hose. (Fuller Decl. ¶ 3, Ex. 2 (“Train Profile”) at 17-20; Lemieux Dep. at 55-56.)

         That morning, CP called Lemieux for work in Glenwood, Minnesota, starting at 10:25 a.m. (Lemieux Dep. at 53.) Lemieux and his engineer, Xxxxx, had to review paperwork in Glenwood and then travel two hours to Dickinson to get on a train there. (Id. at 53-54.) The profile for their assigned train, CP-490-09, shows that the train had 150 cars, 111 of which were fully loaded, and weighed approximately 15, 684 tons. (Train Profile at 17.) Numerous cars contained dangerous or hazardous materials. (Id. at 17-19.)

         Before moving the train, Lemieux and Xxxxx were required to conduct a Class I Air Test. (Lemieux Dep. at 54.) Lemieux started this test at approximately 1:00 or 1:30 p.m. (Id. at 55.) Lemieux began walking the train, “looking for any . . . safety issues, any . . . problems, . . . anything that need[ed] to be fixed.” (Id.) He noted that an air hose was leaking and that numerous brake pads were not compliant, including the pads on three of the first five cars. (Id. at 55-56.) One such pad was “definitely not safe” because it was missing “a major portion” of the pad and was “worn down.” (Id. at 55.) CP did not provide Lemieux with tools to measure brake pads, so Lemieux used his personal Leatherman to measure it. (Id.) His measurement revealed that the brake pad came out below three eighths of an inch, including the backing. (Id.)

         Lemieux completed the inspection of the entire train, which took somewhere between 1.5-2 hours. (Id. at 56.) Based on his training, he did not report the brake problems until after he completed the whole inspection. (Id.) Ultimately, Lemieux “bad ordered” about 56 cars due to bad brake shoes. (Id. at 58.) He called dispatch at 4:00 or 4:30 p.m. to report the non-compliant brake shoes and leaking air hose. (Id.; Donesky Decl. ¶ 12, Ex. K (“Tr.”) at 44-45, Docket No. 167.)

         Keith Kary, the Glenwood train master, and Michael Downer, a St. Paul mechanical manager, were not notified about the bad order cars until around 6:35 p.m. (Tr. at 4, 13, 45.) They arrived at the train between 8:00-8:30 p.m. (Id. at 46.) Kary testified that he looked at four or five cars and “took no exception to th[e] cars that [Lemieux] showed [him], ” finding that they were “legal . . . at least three-eighths of an inch.” (Id. at 14.) Lemieux testified that Kary said that the first few brake shoes appeared “close to three-eighths, ” but said that, since he did not have a measuring device, he could not say for sure whether they were sufficient and safe for travel. (Id. at 47.) Downer testified that he “did not find one exception to the brake shoes” and that there were “absolutely no bad orders in that train whatsoever.” (Id. at 17.) According to Lemieux, Downer said, “just by looking at [the brake pads] that they were greater than three-eighths” and, even if they needed to be repaired, they were safe to travel to the St. Paul yard for repairs. (Id. at 48.) Lemieux testified that allowing the train to travel in that state was not consistent with the GOI or the Class I Air Test, which demands “100 percent rule compliance.” (Id. at 48-49.)

         Qualified mechanics also came out to inspect the brake shoes that Lemieux had bad ordered and found none of them to be bad ordered. (Id. at 17-19.) Lemieux did not see them do the measurements. (Lemieux Dep. at 58.) Neither Kary nor Downer physically measured the brake shoes, and Downer acknowledged that he did not see any of the measurements that were being taken. (Tr. at 76.)

         Kary testified that Lemeiux's report of 56 bad ordered cars caused train delay in violation of GCOR-1.29. (Tr. at 24.)

         2. Hearing

         On February 18, 2015, CP sent Lemieux a notice ordering him to appear for a formal hearing regarding the train delay. (Fuller Decl. ¶ 3, Ex. 6 at 24.) This hearing was required by the CBA that governed the terms of Lemieux's unionized employment. (Lemieux Dep. at 24, 39.)

         Jeffrey McInnis, road foreman of engines in St. Paul, conducted the hearing on February 27, 2015. (Tr. at 1-2; Fuller Decl. ¶ 3, Ex. 23 (“McInnis Dep.”) at 3.) The hearing and investigation relied only on testimony from Lemieux, Xxxxx Kary, and Downer. (Tr. at 2-3.) McInnis denied Lemieux's request to have the union carmen - the only people who had physically measured the brake shoes - testify. (McInnis Dep. at 21.) McInnis also failed to pull audio tapes into the investigation that would have clarified the timing and details of Lemieux's report. (Id. at 39-40.)

         McInnis did not question Lemieux's honesty in reporting defective brakes. (Id. at 25.) He acknowledges that CP wants its employees “to report anything they think could be a possible safety issue with the train” and that Lemieux's report of the air brake hose as a bad order was accurate. (Id. at 25, 28.)

         3. Discipline

         On March 5, 2018, McInnis recommended to Tom Jared, a CP superintendent in Minnesota, that Lemieux receive a 5-day unpaid suspension, “an advancement of one step in the U.S. discipline policy, ” because “[b]ad orders were improperly identified as such, as well as not reported in a timely manner.” (Fuller Decl. ¶ 3, Ex. 8 at 28-29; Fuller Decl. ¶ 3, Ex. 14 at 6.) The same day, Jared agreed with McInnis's recommendation, and passed it along to Mark Redd. (Fuller Decl. ¶ 3, Ex. 8 at 28.) Redd is Senior Vice President of West Region Operations for CP. (Fuller Decl. ¶ 3, Ex. 25 at 86.) He reviewed the hearing transcript and exhibits, as well as the recommendations from McInnis and Jared. (Id. at 97.) Redd issued the 5-day unpaid suspension, (i ...

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