Boucher v. BNSF Railway Company (agency decision, March 22, 2019)

Plain-English summary

Gregg Boucher pursued both a Federal Rail Safety Act complaint and a Montana court claim alleging that BNSF unlawfully fired him after he reported an injury. He later settled the state case and released all outstanding claims, then asked to withdraw his Board appeal. The Board refused to approve a redacted settlement because its consideration was a matter of public concern, but Boucher conceded that completing the state-law settlement made his election-of-remedies challenge moot. The FRSA prohibits seeking protection under both its provisions and another law for the same railroad act. The Board granted withdrawal and dismissed the complaint.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109(f); 29 C.F.R. §§ 1982.111(c) and 18.72
• Outcome: Motion to withdraw granted and FRSA complaint dismissed after the state-law remedy was elected.
• Key point: Settling a state-law claim over the same discharge triggered the FRSA election-of-remedies bar.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  IN THE MATTER OF:


  GREGG BOUCHER,                                   ARB CASE NO.   2016-0085

                  COMPLAINANT,                     ALJ CASE NO.   2014-FRS-00072

         v.                                        DATE: March 22, 2019

  BNSF RAILWAY COMPANY,

                  RESPONDENT.


  Appearances:

  For the Complainant:
        James P. Carey, Esq.; Lamb & Carey; Helena, Montana

  For the Respondent:
        Keith M. Goman, Esq.; Hall and Evans, L.L.C.; Denver, Colorado, and
        Paul Balanon, Esq.; BNSF Railway Company, Fort Worth, Texas

  Before: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes and Daniel T. Gresh, Administrative Appeals Judges



                         FINAL DECISION AND ORDER
        PER CURIAM. This case arises under the employee protection provisions of
  the Federal Railroad Safety Act of 1982 (FRSA or the Act).1 Complainant Gregg

  1     49 U.S.C. § 20109 (2018) as amended by Section 1521 of the Implementing
  Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Pub. L. 110-53, as
  implemented at 29 C.F.R. Part 1982 (2018) and 29 C.F.R. Part 18, Subpart A (2018).



  Boucher filed a complaint alleging that Respondent BNSF Railway Company
  violated the FRSA when it terminated his employment. For the following reasons,
  we dismiss his complaint.

                                     BACKGROUND
         On April 26, 2012, Boucher filed a complaint alleging that the Respondent
  violated the FRSA when it fired him after he reported an injury. On that same day,
  Boucher filed a complaint in Montana state court asserting that his discharge
  violated Mont. Code Ann. § 39-2-703, a Montana law holding railway companies
  liable for mismanagement. OSHA investigated the FRSA complaint and found that
  Complainant’s discharge violated the FRSA.

         The Respondent requested a hearing before an Administrative Law Judge
  (ALJ) and filed two motions for summary decision. Prior to any hearing, the ALJ
  granted Respondent’s second motion for summary decision in a Decision and Order
  Granting Summary Decision (D. & O.). The ALJ concluded that Complainant could
  not seek relief for his discharge under both the FRSA and the Montana law. D. & O.
  at 14. He also noted that it would be improper for Complainant to receive duplicate
  remedies for the Respondent’s same alleged unlawful act. Id. at 13-14.

         The Complainant appealed the D. & O. to the Board in a “Petition for Review
  of Decision and Order Granting Motion for Summary Decision” (Petition for
  Review). The Board accepted the appeal and received briefs from the parties. On
  April 26, 2018, Complainant filed a “Motion to Withdraw Petition for Review of ALJ
  Decision” (Motion to Withdraw), which stated: “In exchange for consideration
  obtained in a Confidential Settlement and Release Agreement relating to the
  Montana State Court Suit, Boucher provided BNSF releases of all outstanding
  claims without an award of fees, costs, or expenses.” The Board directed the parties
  to submit a copy of their settlement agreement because, under the FRSA
  regulations, “a party before the Board who enters into a settlement of an FRSA
  claim may withdraw on the basis of a settlement only after the Board approves the
  settlement.” 2

        On May 24, 2018, the Respondent submitted a redacted copy of the
  settlement agreement and an “Order for Dismissal with Prejudice” issued by the


  2      29 C.F.R. § 1982.111(c).



  Montana Eighth Judicial District Court. On June 5, 2018, the Board issued an
  “Order Denying Motion to Withdraw Petition for Review of ALJ Decision and
  Denying Approval of Settlement Agreement” (Order Denying Motion). It states the
  following:

                  The Board will not approve a redacted settlement
                  agreement because the amount of money or other
                  consideration provided in a settlement is a “matter of
                  public concern” . . . . Accordingly, the Board directs the
                  parties to submit an unredacted copy of the Settlement
                  within thirty days of this Order. If they have not done so
                  within that time, this matter will proceed to a
                  consideration of the merits of Boucher’s Petition.

        On July 2, 2018, the Complainant filed a “Submission in Response to ARB’s
  Order to Complainant and Respondent.” In this document the Complainant
  concedes that the Respondent is entitled to summary decision:

                  Complainant’s argument before the ALJ and before the
                  ARB on appeal was that he had not elected a remedy in his
                  Montana state court action because that case was then still
                  pending, and had not resolved via verdict or settlement,
                  i.e., he had not then received a remedy . . . . Having now
                  pursued his “elected remedy” to satisfactory conclusion, the
                  issue before the ARB of whether the ALJ correctly decided
                  election of remedies issue is rendered moot.


                          JURISDICTION AND STANDARD OF REVIEW
        The Secretary of Labor has delegated to the Administrative Review Board
  authority to review ALJ decisions in cases arising under the FRSA and issue final
  agency decisions in these matters. 3 The Board reviews the ALJ’s factual
  determinations under the substantial evidence standard. 4 The Board reviews an




  3      Secretary’s Order No. 2-2012 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 77 Fed. Reg. 69,378 (Nov. 16, 2012); see
  29 C.F.R. § 1982.110(a).
  4      29 C.F.R. § 1982.110(b).



  ALJ’s conclusions of law de novo. 5 The Board reviews an ALJ's grant of summary
  decision de novo, applying the same standard that ALJs employ under 29 C.F.R.
  Part 18. 6 Pursuant to 29 C.F.R. § 18.72, an ALJ may enter summary judgment for
  either party if the pleadings, affidavits, material obtained by discovery, or matters
  officially noticed show that there is no genuine issue as to any material fact and
  that a party is entitled to summary decision.


                                           DISCUSSION
         The FRSA prohibits a railroad carrier engaged in interstate or foreign
  commerce from discharging, demoting, suspending, reprimanding, or in any other
  way discriminating against an employee if such discrimination is due, in whole or in
  part, to the employee’s protected activity. 7 The “election of remedies” provision of
  the Act prohibits a Complainant from bringing separate claims under two different
  provisions of law for the same allegedly unlawful act: “[a]n employee may not seek
  protection under both this section and another provision of law for the same
  allegedly unlawful act of the railroad carrier.” 8

          Montana law provides a cause of action to railway workers who suffer
  adverse actions because of a railroad’s mismanagement, negligence, or wrongdoing. 9
  It is “another provision of law” and it provides “protection” because it provides a
  remedy for wrongful discharge. Because Complainant has elected to seek protection
  under “another provision of law” in addition to the FRSA, the “election of remedies”


  5     Hamilton v. CSX Transp., Inc., ARB No. 12-022, ALJ No. 2010-AIR-025, slip op. at 2
  (ARB Apr. 30, 2013) (citations omitted).
  6     Siemaszko v. FirstEnergy Nuclear Operating Co., Inc., ARB No. 09-123, ALJ No.
  2003-ERA-013, slip op. at 3 (ARB Feb. 29, 2012).
  7      49 U.S.C. § 20109(a), (b), (c).
  8      49 U.S.C. § 20109(f).
  9       “A person or corporation operating a railway or railroad in this state is liable for all
  damages sustained by any employee of the person or corporation in consequence of the
  neglect of any other employee of the person or corporation or by the mismanagement of any
  other employee and in consequence of the willful wrongs, whether of commission or
  omission, of any other employee of the person or corporation when the neglect,
  mismanagement, or wrongs are in any manner connected with the use and operation of a
  railway or railroad on or about which the employee is employed. A contract that restricts
  the liability is not legal or binding.” Mont. Code Ann. § 39-2-703(1).



  provision of the Act renders withdrawal and dismissal of the instant action
  appropriate.



                                     CONCLUSION

        Accordingly, Complainant’s motion to withdraw his petition for review in this
  appeal is GRANTED and his complaint is hereby DISMISSED.

         SO ORDERED.