United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
This is a whistleblower retaliation action under the Federal Rail Safety Act ("FRSA"), 49 U.S.C. § 20109(d). Union Pacific moved for summary judgment (Doc. 37) on the basis that Plaintiff's claim is barred by the election of remedies provision of 49 U.S.C. 20109(f) and the doctrine of res judicata. The motion is fully briefed and the Court is prepared to rule. As described more fully below, the Court denies Union Pacific's motion.
I. Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party." A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party.'"
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence. The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation."
The defendant has the burden of proof on the affirmative defense, and thus in moving for summary judgment on the affirmative defense, "[t]he defendant... must demonstrate that no disputed material fact exists regarding the affirmative defense asserted." Once the defendant makes this initial showing, "the plaintiff must then demonstrate with specificity the existence of a disputed material fact." If the plaintiff cannot meet this burden, "the affirmative defense bars [her] claim, and the defendant is then entitled to summary judgment as a matter of law." In determining whether summary judgment is proper, the evidence must be viewed in the light most favorable to the non-moving party.
Finally, summary judgment is not a "disfavored procedural shortcut;" on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."
II. Uncontroverted Facts
The following facts are uncontroverted or stipulated to by the parties, and all reasonable inferences are drawn in favor of Plaintiff as the non-movant. Plaintiff was employed by Union Pacific as a train conductor. On October 20, 2010, several Union Pacific managers conducted a testing event on Plaintiff's train, which included reviewing Plaintiff's Conductor's Report, and determining whether Plaintiff's train had exceeded the scope of its authority given by the track warrant. Based on the investigation, Plaintiff was charged with violations related to his Conductor's Report. Union Pacific held an evidentiary investigative hearing on November 3, 2010, at which Plaintiff was allowed to call witnesses and submit evidence. Plaintiff testified at the hearing that he was targeted for testing because he reported safety issues. After the hearing, the superintendent issued a Notice of Discipline and five-day suspension without pay, for failure to "comply with instructions to properly fill out [the] conductors log form after multiple prior coaching opportunities for failure to log required entries." Plaintiff's union appealed the suspension to the Public Law Board (the "PLB"). The PLB found in favor of Plaintiff and compensated him for his suspension and the day spent in the investigative hearing.
On September 9, 2010, about six weeks before the October 20 testing event, Plaintiff filed an FRSA whistleblower complaint with the Occupational Health and Safety Administration ("OSHA action"), an agency of the United States Department of Labor ("DOL"). After an investigation, the Assistant Secretary of Labor issued findings in Plaintiff's favor, and Union Pacific timely objected. Pursuant to DOL rules and procedure, an Administrative Law Judge ("ALJ") conducted a three-day evidentiary hearing from March 27-29, 2012. On July 11, 2012, well over 210 days after Plaintiff filed the complaint with OSHA, the ALJ issued a Decision and Order finding in favor of Union Pacific.
On July 20, 2012, Plaintiff filed a Petition for Review with the Administrative Review Board ("ARB"). On July 30, 2012, prior to serving his notice of intent to file an original action in United States District Court with the ARB, Plaintiff filed his Complaint before this Court. On August 14, 2012, the ARB received Plaintiff's notice of intent to file an original action. On November 19, 2012, the ARB issued an order dismissing Plaintiff's appeal.
A. Res Judicata