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Fourth Circuit Holds that Suit Alleging Racial Discrimination Does Not Bar Later Suit for Unlawful FRSA Retaliation

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The U.S. Court of Appeals for the Fourth Circuit, in Lee v. Norfolk Southern Ry. Co., 802 F.3d 626 (4th Cir. 2015), held that a plaintiff who alleged his suspension resulted from racial discrimination was not barred from claiming in another lawsuit that his employer suspended him as retaliation for refusing to ignore safety regulations, in violation of the Federal Railroad Safety Act (FRSA).

In Lee, the defendant, Norfolk Southern Railway, suspended the plaintiff, Charles Lee, for six months in 2011 for allegedly consuming beer on the job. Lee’s duties for Norfolk Southern included inspecting rail cars for possible safety hazards. Lee sued Norfolk Southern under 42 U.S.C. § 1981, alleging that his suspension resulted from racial discrimination. According to Lee, his white supervisor consumed alcohol on the job and did not face adverse consequences. Lee also alleged that his white co-workers received promotions under a collective bargaining agreement while his African-American co-workers did not, and he claimed that he faced harassment because of his race. Lee eventually lost that lawsuit on summary judgment.

While that lawsuit was pending, Lee filed a complaint with the Occupational Safety and Healthy Administration (OSHA), in which he alleged that Norfolk Southern suspended him in retaliation for his refusal to ignore safety regulations, in violation of FRSA. In his OSHA complaint, Lee asserted that Norfolk Southern attempted to require him to limit the number of rail cars he “bad ordered” – i.e., identified for repair – in violation of FRSA. When Lee refused to abide by Norfolk Southern’s cap because he believed it violated FRSA, Norfolk Southern allegedly suspended him in retaliation. After OSHA dismissed the complaint, Lee filed objections with the Department of Labor’s Office of Administrative Law Judges, and he later informed the OALJ that he would pursue his case in federal court.

After the district court granted summary judgment on Lee’s race discrimination claim, he filed suit on his FRSA retaliation claims. FRSA contains an “election of remedies” provision, which bars an aggrieved employee from pursuing legal action under both FRSA and another law for the “same allegedly unlawful act.” The district court adjudicating Lee’s second suit granted summary judgment against him on his FRSA retaliation claim, holding that his earlier suit alleging racial discrimination was an election of remedies under FRSA and that the suspension was the “same allegedly unlawful act.” Lee appealed to the Fourth Circuit.

The Fourth Circuit reasoned that while the act itself was the same in both cases – suspension – the act was not an “allegedly unlawful act” for the same reasons in each lawsuit. Under the Section 1981 claim, Lee alleged that Norfolk Southern suspended him because of racial discrimination. But under the FRSA claim, the suspension allegedly stemmed from whistleblower retaliation. According to the Fourth Circuit, these differences in the legal theory did not trigger the election of remedies provision.

The Lee Court also held that the election of remedies provision was not intended to cover racial discrimination suits. Instead, the court held, the election of remedies provision only bars a plaintiff from pursuing whistleblower retaliation claims under both the FRSA and another whistleblower protection law.

Importantly, this holding preserves the doctrine of “pleading in the alternative,” and it allows a plaintiff to attempt to prove more than one possible theory for why an employer took an adverse action against him. Ultimately, the decision reduces the chance that a legitimate whistleblower retaliation complaint under FRSA will be barred because the plaintiff alleged another possible motive for the employer’s adverse action.

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