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Powell-Coker v. Norfolk Southern Railway Company, Inc.

United States District Court, N.D. Alabama, Southern Division

October 19, 2018

STEFFANY POWELL-COKER, Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         Steffany Powell-Coker filed this lawsuit against Norfolk Southern Railway Company, Inc. (“NSRC”) and several of its employees including, Todd Reynolds, Ray Wallace, Rodney Moore, Patrick Whitehead, Steve Wilburn, Donald Craine, Kraig Barner, Darrel Green, Stephen Weatherman, and Dale Brown (hereinafter collectively the “Individual Defendants”), alleging retaliation in violation of the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20109, Count I, and an Alabama state law claim of outrage, Count II. Doc. 16. Before the court is Defendants' motion to dismiss Powell-Coker's first-amended complaint. Doc. 22. The motion is fully briefed and ripe for review, docs. 22, 23, 26, 27, and is due to be granted.

         I. STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citing Twombly, 550 U.S. at 557).

         Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citations omitted) (internal quotation marks omitted). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The complaint must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). Ultimately, this inquiry is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         II. FACTUAL BACKGROUND [1]

         Powell-Coker is an employee in the Birmingham office of NSRC, an interstate railroad carrier. Doc. 16 at 2. Her division clerk and administrative assistant job duties included “documenting employees' discipline history and ensuring compliance with NSRC rules and union requirements that promote rail safety.” Id. at 3-4. Powell-Coker alleges that her supervisor, Todd Reynolds, sexually harassed her through inappropriate explicit messages, attempts to touch her, threats to her husband, improper monitoring, and attempts to relocate her job to Atlanta, Georgia. Id. at 5. This harassment is the basis of her outrage claim.

         Powell-Coker's retaliation claim is based on her contention that Defendants retaliated against her after she reported hazardous safety conditions. Apparently, in October 2016, Powell-Coker's direct supervisor and then-Assistant Division Superintendent, Ray Wallace, and Steve Wilburn purportedly instructed her to falsely alter and/or delete employee disciplinary files, including safety-related offenses. Id. Powell-Coker maintains that these repeated orders created an ongoing safety issue that placed railroad employees at risk. Id. As a result, she notified Darrel Green (general manager), Rodney Moore (division superintendent), and Todd Reynolds (supervisor) of these “hazardous safety” concerns. Id. She also notified Donald Craine, an assistant general manager in charge of auditing the discipline reports, and he advised that she provide him with “weekly un-altered discipline reports.” Id.

         Allegedly, in retaliation for her complaints, in December 2016 and January 2017, NSRC placed Powell-Coker on furlough on two occasions due to “work force reductions” and accused her of incorrectly addressing an envelope and missing a deadline to file a disciplinary appeal for two employees. Id. at 8. In February 2017, Stephen Weatherman (an NSRC employee) investigated Powell-Coker's safety hazard allegations but found that they lacked merit. Id. at 7. A month later, Steve Wilburn (charging officer), Craig Barner (hearing officer), and Dale Brown (assisting hearing officer) held a disciplinary hearing regarding Powell-Coker's alleged mishandling of the two employee's disciplinary appeal and ultimately issued “a letter of reprimand.” Id. at 8-9.

         Based on the furloughs and reprimand, Powell-Coker filed a complaint under the FRSA with the Occupational Safety and Health Administration (“OSHA”) alleging retaliation. Due to OSHA's failure to issue a final decision on the merits within 210 days and because the delay was not due to her bad faith, [1]Powell-Coker seeks de novo review of her claim in this court. Id. at 2.

         III. DISCUSSION

         There are two components to the motion to dismiss. First, the Individual Defendants, excluding Moore, argue that Powell-Coker's FRSA retaliation claim, Count I, fails to specify how each of them learned about her protected activity and/or individually participated in the alleged adverse employment action. Also, as to Count I, Defendants Weatherman, Brown, and Traywick argue that Powell-Coker failed to exhaust prerequisite administrative remedies because her OSHA complaint fails to explicitly mention them. Second, all the Defendants argue that the outrage claim, Count II, lacks sufficient descriptions of the alleged harassment and the severe emotional distress required for such a claim. The court will address first the retaliation claim in Section A, followed by the outrage claim in Section B.

         A. FRSA Retaliation Claim - Count I

         The FRSA provides that “[a] railroad carrier… or an officer or employee of such a railroad carrier... may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee's lawful, good faith act done, or perceived by the employer to have been done or about to be done[, ] ... to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security.” 49 U.S.C. § 20109(a)(2). Courts interpreting this provision note that the FRSA “incorporates by reference the rules and procedures applicable to Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR-21”) whistleblower cases.” Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152, 157 (3d Cir. 2013). This framework requires that the plaintiff must show that “the protected activity was a ‘contributing factor' to the adverse employment action.” Id. (citing Allen v. Admin. Review Bd., 514 F.3d 468, 475-76 (5th Cir.2008)). To do so, the employee must demonstrate, by a preponderance of the evidence, that “(1) he engaged in a protected activity; (2) the railroad employer knew or suspected ...


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