Whistleblower lawsuit dismissal reversed by Fourth Circuit Court of Appeals

The Fourth Circuit Court of Appeals (which is the federal circuit that includes North Carolina) has allowed a Norfolk Southern Railway worker to proceed with a whistleblower action even after the same employee’s earlier filed discrimination action was dismissed by a federal district court.  The case, Lee v. Norfolk Southern Railway Co., 802 F.3d 626 (4th Cir. 2015), serves as an important reminder of an employer’s duty not to punish employees who report safety violations or other perceived unlawful actions.

The case was filed by Charles Lee, a rail carman for Norfolk Southern in North Carolina.  As a carman, Lee was responsible for inspecting rail cars for potential safety concerns.  In July of 2011, the company suspended Lee without pay for six months.  The company claimed that the suspension was because Lee drank a beer while on duty and then drove a company owned car in violation of company policy. 

Lee, however, claimed that his termination was actually due to two illegal factors: (1) his race (black) and (2) retaliation for federal rail safety whistleblowing activity.  

Lee filed two separate lawsuits at different times alleging these different theories.  The district court entered summary judgment for the defendant and dismissed the first lawsuit for alleged race discrimination under 42 U.S.C. § 1981.  Shortly thereafter, Lee filed a second lawsuit for damages under the Federal Railroad Safety Act’s whistleblower provision.  In this suit, Lee contended that Norfolk Southern suspended him in retaliation for his refusal to comply with the company’s attempts to limit the number of defective cars that he could identify as needing repairs.  In short, Lee argued that the company unlawfully punished him for blowing the whistle on safety violations.

Norfolk Southern argued that this second lawsuit was barred by an election of remedies restriction contained in the Federal Railroad Safety Act.  That provision states: “An employee may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier.”  49 U.S.C. §20109(f).  The district court agreed with this position and granted summary judgment in the second suit as well.

In a heavily contested appeal, which featured appearances by government agencies and amicus filings by the Association of American Railroads, the Fourth Circuit Court of Appeals reversed.  In so doing, the Court agreed with Lee’s position that while his suspension was the challenged act in both lawsuits, the allegedly unlawful act was different in the two suits.  The first suit alleged discrimination as the unlawful act; the second suit alleged whistleblower retaliation. Because these are distinct causes of action with different proof requirements, the Court ruled that the election of remedies restriction did not bar the second whistleblower action.  

Procedurally, the case was quite complex.  The complexity was due to a number of factors, which included the rigorous administrative scheme that a railroad worker must first pursue before filing a whistleblower case in court.  The case demonstrates well, however, the basic danger that lurks whenever an employer takes adverse employment action against an employee who has reported or opposed safety violations or who has refused to comply with instructions or orders that violate federal safety standards.

Far from unique to the railroad setting, whistleblower protections exist in a myriad of settings, both blue collar and white collar.  Virtually any time an employee is punished for opposing work place safety concerns, whistleblower considerations arise.  Beyond the safety arena, employees are also protected from retaliation for opposing unlawful activities, such as employment discrimination or harassment.  

Another whistleblower protection that often comes in to play is the protection afforded to employees who report or oppose unlawful billing practices by employers who perform work under government contracts.  Both federal and state law provides protections to whistleblowers who report false claims for payment or reimbursements.  This blog post presents an excellent overview of some of the more common whistleblower statutory protections under federal law, but keep in mind that North Carolina law provides many others. 

It is also critical to remember that retaliation or whistleblower actions often prove more problematic to the employer than defending the underlying claim of unlawful conduct.  In this case, for example, the Fourth Circuit noted that  the “burden-shifting framework that is applicable to FRSA cases is much easier for a plaintiff to satisfy than the McDonnell Douglas standard” applicable to Section 1981 claims.