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Decided: September 17, 2015

The Fourth Circuit vacated the district court’s judgment and remanded for further proceedings.

Charles Lee was a carman, who inspected railcars to identify potential service-related defects for Norfolk Southern Railroad (“NS”) in Asheville, North Carolina. In July 2011, NS suspended Lee without pay for six months. The parties did not agree on the reason for the suspension. NS claimed that it was because Lee drank a beer on duty and then operated a company owned automobile in violation of a company policy, whereas Lee, an African-American, claimed that the suspension was motivated by his race and in retaliation for federal rail safety whistleblowing.

In his first lawsuit, filed in September 2011, Lee alleged that his suspension constituted racial discrimination in violation of 42 U.S.C. § 1981. Less than two months after filing his first lawsuit, Lee also filed a complaint with the Occupational Safety and Health Administration (“OSHA”) under the Federal Railroad Safety Act’s (“FRSA”) whistleblower provision, 49 U.S.C § 20109. Lee alleged that NS was capping the number of cars he could tag as defective, which was a violation of federal law. When Lee refused to comply with the caps, NS suspended him. On September 21, 2012 OSHA dismissed Lee’s whistleblower complaint after deciding that NS did not commit any FRSA violations. The district court, on December 12, 2012, granted NS summary judgment and only addressed Lee’s Section 1981 claims, not his FRSA whistleblowing claims. Less than a month later, Lee filed a FRSA retaliation lawsuit. On May 20, 2014, the district court granted NS summary judgment on Lee’s FRSA claims holding that his first lawsuit under Section 1981 constituted an election of remedies under FRSA Section 20109(f) and barred Lee’s subsequent FRSA retaliation action.

The Fourth Circuit began its analysis examining the meaning of the disputed FRSA’s Election of Remedies provision. In its current form, the FRSA Election of Remedies provision prohibits an employee from “seek[ing] protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier.” The district court determined that Lee’s first lawsuit under Section 1981 was an attempt to “seek protection under another provision of law.”

The Fourth Circuit determined that the Election of Remedies provision is unambiguous because it is only susceptible to one reasonable interpretation, that a suspension on the basis of race is not “the same allegedly unlawful act” as a suspension in retaliation for FRSA whistleblowing. The Court held that these acts are distinct causes of action with different elements and burdens of proof. NS argued that its interpretation of the Election of Remedies provision is supported by federal policies prohibit claim splitting. However, the Court rejected this argument noting that nothing in the plain language of the Election of Remedies provision suggests that it should be considered a substitute for a rule against claim-splitting. Therefore, the Court held that the Election of Remedies provision did not apply to Lee’s second whistleblowing lawsuit.

Accordingly, the Fourth Circuit reversed the district court’s order and remanded for further proceedings.

Full Opinion

Meredith Weisler