Texas Federal Court Denies Railroad’s Motion To Dismiss Retaliation Case Under FRSA’s “Kick-Out” Provision

In December 2010, a railroad employee filed an administrative claim under the Federal Rail Safety Act (“FRSA”) alleging that the railroad retaliated against him for reporting a rail yard safety condition.  OSHA investigated the claim and attempted to conduct closing conferences in August and October 2011, but the employee insisted on additional investigation.  OSHA eventually dismissed the claim on substantive grounds on June 21, 2012, the employee filed objections, and the case was referred to an ALJ.  The employee agreed to a scheduling order that culminated in a January 9, 2013 hearing.  Following post-hearing briefs, on July 12, 2013, prior to the deadline to for the employee to file a reply brief, he filed a lawsuit in federal court.  Defendant railroad moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that plaintiff’s conduct in waiting to file his complaint 892 days after he filed his administrative claim, and 682 days after his right to remove vested, constituted “bad faith” and divested the court of subject matter jurisdiction.

Last week, in considering defendant’s motion, the U.S. District Court for the Northern District of Texas noted that the issue of whether the worker filed his lawsuit in an act of gamesmanship or to prolong the dispute was not relevant as the sole issue was whether the court had subject matter jurisdiction to hear the suit.  Under 49 U.S.C. 20109(d)(3), jurisdiction of the worker’s FRSA claim depended upon whether “the Secretary of Labor has not issued a final decision within 210 days after the filing of the complaint and … the delay is not due to the bad faith of the employee[.]”  Notably, the court found that the railroad had not established bad faith on the part of the employee, notwithstanding that “(1) Plaintiff was responsible for delay in the OSHA investigator’s ruling because he sought further investigation; (2) Plaintiff indicated that he did not intend to file the case in federal court and voluntarily entered into a scheduling order before the ALJ; (3) the ALJ and both parties expended significant resources in preparing for and conducting an extensive hearing; and (4) this lawsuit was filed five months after the hearing, after Defendant and the ALJ spent additional resources on lengthy post-hearing briefing.”  The delay, “even if partially due to Plaintiff taking advantage of the rights afforded by Department of Labor regulations – was not caused by the ‘dishonesty of belief or purpose’ of Plaintiff” as a bad faith finding would require.