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Mullen v. Norfolk Southern Railway Co.

United States District Court, W.D. Pennsylvania

May 29, 2015

HARRY MULLEN, Plaintiff,


Terrence F. McVerry Senior United States District Judge

Before the Court is DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, TO ASSESS COSTS (ECF No. 34) filed by Defendant Norfolk Southern Railway Company ("Norfolk Southern")[1] Plaintiff Harry Mullen opposes the motion. The issues have been fully briefed and well-argued by the parties in their briefs (ECF Nos. 35, 41, 43), and the factual record has been fully-developed via their Concise Statements of Material Facts ("CSMF"), appendices, exhibits, and Responsive Statement of Facts ("RSOF") (ECF Nos. 36, 37, 40, 42). The Court heard oral argument on May 14, 2015. Accordingly, the motion is ripe for disposition.

I. Background

A. Administrative Proceedings

Plaintiff Harry Mullen alleges that Norfolk Southern wrongfully terminated his employment after he had protested violations of safety regulations and raised concerns with his supervisors while working as a trackman assigned to the Engineering Department, Pittsburgh Division at Conway Yard. Following his termination on February 14, 2011, Mullen filed a “whistleblower” claim with the United States Department of Labor, Occupational Safety and Health Administration (“OSHA”) on April 28, 2011 against Norfolk Southern under the employee protection provisions of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109.[2]

After Mullen filed his complaint, the Secretary of Labor, acting through the Regional Administrator for OSHA, Region III, in Philadelphia, Pennsylvania, conducted an investigation and issued written findings on September 30, 2011 (the “Secretary’s Findings”). OSHA found that, on February 13, 2011, Mullen and his supervisor disagreed about the need for a foreman to work with the gang trackmen who were lubricating switches in the Conway Yard and that Mullen refused to assume the role when offered the position. OSHA further found that Mullen raised his concerns at a safety meeting the following day during which Mullen became argumentative and insubordinate. As a result of his behavior, Norfolk Southern suspended and ultimately terminated Mullen from his employment. After Mullen acknowledged that his conduct was inappropriate, Norfolk Southern agreed to convert his discipline to a three and one-half month suspension and to reinstate his employment. According to OSHA, “there [was] no evidence that [Mullen’s] discipline was motivated in any way by his protected activity, but rather because of his disruptive behavior and insubordination.” Def.’s App’x Ex. 2, ECF No. 37-2 at 3.

On October 27, 2011, Mullen filed objections to the Secretary’s Findings and requested a hearing before the Office of Administrative Law Judges. On November 11, 201, Mullen’s case was assigned to the Honorable Richard A. Morgan, Administrative Law Judge (the “ALJ”), who issued a Notice of Hearing and Pre-Hearing Order the same day. Notably, on November 24, 2011, the 210-day period following the filing of Mullen’s complaint elapsed (assuming the April 28, 2011 date is correct) at which time he could have “br[ought] an original action at law or equity for de novo review in the appropriate district court of the United States” as the Secretary had yet issued a final decision within the statutory timeframe. 49 U.S.C.A. § 20109(d)(3). Mullen did not file a civil action at that time.

The parties instead advanced to discovery in the ALJ proceeding, which included multiple depositions and the exchange of documentary evidence. Following discovery, the parties participated in a four-day hearing before the ALJ in Pittsburgh, Pennsylvania. Mullen was represented by two attorneys during the hearing, which lasted from June 26, 2012 through June 29, 2012 and resulted in a 914-page transcript. Mullen presented seven witnesses as part of his case-in-chief and had the opportunity to cross-examine each of the seven witnesses called by Norfolk Southern. After the hearing, both parties filed post-trial briefs with the ALJ.

On April 30, 2013, the ALJ issued a thorough, nineteen page single-spaced Decision and Order Dismissing the Complaint in which he made credibility determinations, findings of fact, and conclusions of law adverse to Mullen. The ALJ weighed the competing testimony and found that Mullen used profanity at the February 14, 2011 safety meeting (“Fuck safety”), continued to vent his frustrations outside the meeting by insulting his co-workers (“You got these two fucking idiots out here graphiting switches”), and then stepped toward a supervisor, pointed a finger in his face, and accused him of dishonesty (“You’re lying, you’re a liar”). Def.’s App’x Ex. 8 at 9, ECF No. 37-8. The ALJ also found and ruled that Norfolk Southern had established by clear and convincing evidence that it removed Mullen from service and then imposed discipline “not because of his safety concerns but rather because of the grossly inappropriate manner in which he raised them.” Id. at 18. Accordingly, the ALJ entered an order dismissing the complaint and advised Mullen of his appellate rights.

On May 10, 2013, Mullen timely filed a Petition for Review with the Administrative Review Board (the “ARB”). The ARB entered an order setting a briefing schedule six days later, directing Mullen to file a supporting legal brief on or before June 10, 2013. Mullen did not file a supporting legal brief with the ARB. Instead, on June 6, 2013, Millen filed with the ARB a Notice of Intention to File Original Action in United States District Court (the “Notice of Intent”). Mullen did not, however, file a district court complaint at that time.

On June 13, 2013, the ARB issued an Order to Show Cause in which in stated, in relevant part, as follows: “Accordingly, we order the parties to SHOW CAUSE no later than June 24, 2013, why the Board should not dismiss Mullen’s claim pursuant to 29 C.F.R. § 1982.114. Should the parties fail to timely reply to this Order, the Board may dismiss this claim without further notice.” Def.’s App’x Ex. 12, at 2, ECF No. 37-12 (emphasis in original). Mullen did not respond to the Order to Show Cause.[3]

On July 9, 2013, the ARB issued its “Final Decision and Order Dismissing Complaint.” Def.’s App’x Ex. 13, ECF No. 37-13. In its Final Decision and Order, the ARB recounted the procedural history of the matter and acknowledged that “[t]he Secretary of Labor has delegated to the Board her authority to issue final agency decision.” Id. at 2. The ARB also reiterated that “[t]he Board cautioned the parties that should they fail to timely respond to the Board’s Order that ‘[it] may dismiss the claim without further notice.’” Id. The ARB then concluded: “Accordingly, in accordance with 29 C.F.R. § 1982.114 and Mullen’s notification of his intent to proceed in district court and given his failure to respond to the Board’s Order to Show Cause, we DISMISS Mullen’s complaint. SO ORDERED.” Def.’s App’x Ex. 13, at 3, ECF No. 37-13 (emphasis in original). This suit followed.

B. District Court Proceedings

Mullen commenced this action by filing a Complaint in the United States District Court for the Eastern District of Pennsylvania on October 30, 2013-113 days after the issuance of the Secretary’s Final Decision and Order Dismissing Complaint-which was assigned to the Honorable Michael M. Baylson. In his Complaint, Mullen alleges that “he was illegally dismissed by NSR in retaliation for having protested unsafe acts in violation of Federal rail safety regulations, refused to commit the acts himself, and confronted managers as to their violations of these regulations in a company safety meeting, where such problems are supposed to be raised.” Pl.’s Compl. at 1, ECF No. 1. To be sure, the Complaint raises the exact same alleged FRSA violation(s) that the parties fully litigated at the administrative level.

On February 7, 2014, Norfolk Southern filed a Motion to Dismiss for Lack of Jurisdiction and Improper Venue, or in the Alternative, Transfer Venue. Mullen opposed the motion(s). Judge Baylson denied the motion to dismiss but granted the alternative relief requested in an April 8, 2014 Memorandum and Order, transferring this action to the United States District Court for the Western District of Pennsylvania. (ECF Nos. 11, 12). On May 6, 2014, Norfolk Southern moved for certification of the April 8, 2014 Order of Court for an interlocutory appeal and for a stay pending the appeal. Judge Baylson denied the motion in a June 10, 2014 Memorandum and Order. (ECF Nos. 19, 20). The case was transferred to this Court on July 10, 2014.

This Court held a Case Management Conference on October 7, 2014 at which Norfolk Southern raised and the undersigned discussed with counsel whether it had subject-matter jurisdiction. With the parties consent, the Court ultimately ordered briefing and heard oral argument on this issue.

After careful consideration of the motion and the filings in support and opposition thereto, the Court concludes that it does not have subject-matter jurisdiction. Thus, for the reasons that follow, the Court will grant in part and ...

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