Argued Dec. 2, 2013.
Charles A. Collins, Saint Paul, MN, David L. Lee, Chicago, IL, Harry W. Zanville, San Diego, CA, for Plaintiff-Appellee.
James S. Whitehead, Sidley Austin LLP, Chicago, IL, for Defendant-Appellant.
Rachel Goldberg, Department of Labor, Washington, DC, for Amicus Curiae.
Before BAUER and FLAUM, Circuit Judges, and VAN BOKKELEN, District Judge.[*]
FLAUM, Circuit Judge.
This case is about the meaning of the election-of-remedies provision in the Federal Railroad Safety Act (" FRSA" ). The defendant, Norfolk Southern Railway, claims that this provision bars a railroad employee who has been wrongfully discharged from obtaining relief through both grievance-arbitration pursuant to the Railway Labor Act and an administrative claim or lawsuit under FRSA. We disagree. Although our reasoning differs from the district court's, we too conclude that nothing in FRSA bars an employee from bringing both claims.
In April 2009, Justin Reed, a trackman with Norfolk Southern Railway (" NSR" ), experienced a bout of severe abdominal pain while working. He claimed that, after he informed his supervisor, company officials were reluctant to provide medical treatment and pressured him into signing a statement that he had not been " injured on or at work." Reed was on medical leave for about seven months. Soon after he returned to work, a company claims agent urged him to state whether he thought the April incident was work-related. Reed admitted that, notwithstanding his earlier attestation, he felt that his work did play a role in his injury. NSR responded by firing Reed for making inconsistent statements and for violating Rule N, an internal rule requiring same-day reporting of on-site injuries.
Reed was a member of the Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters, which had negotiated a collective bargaining agreement with NSR. Reed and the union believed that his termination violated the terms of this agreement. Following his termination— and pursuant to section 3 of the Railway Labor Act, 45 U.S.C. § 153— Reed appealed his dismissal to an arbitral board, Public Law Board 6394.
While the arbitration proceedings before the Board were pending, Reed also filed a complaint with the Occupational Safety and Health Administration, alleging that NSR had violated the Federal Railroad Safety Act. FRSA prohibits railroad carriers from, among other things, discriminating against employees who " notify, or attempt to notify, the railroad carrier ... of a work-related personal injury." 49 U.S.C. § 20109(a)(4). After waiting an appropriate period of time, see id. § 20109(d)(3), Reed brought an original action in federal district court.
Approximately seven months after Reed filed his FRSA suit, Public Law Board
6394 issued its opinion. The Board concluded that Reed's violations of company policy were not grounds for dismissal and awarded him reinstatement without back pay. Four days later, NSR moved for summary judgment in Reed's FRSA suit. By choosing to arbitrate his grievance before the Public Law Board, the ...