MEMORANDUM AND ORDER
In the midst of the court's attempt to resolve Defendant BNSF's Motion for Summary Judgment (Filing No. 118) in this Federal Railroad Safety Act ("FRSA") case, Plaintiff Jeffrey Neylon has filed a Notice of Supplemental Authority (Filing No. 125). Attached to the Notice is a ruling from Public Law Board No. 7880 concluding that although Neylon technically violated BNSF's rules regarding injury reporting, BNSF's termination of Neylon's employment "was unreasonable and arbitrary given the circumstances." (Filing No. 125-1 at CM/ECF p. 3.) The Board ordered that Neylon be reinstated to service without back pay.
Plaintiff's Notice does not make clear that the Board's decision is the result of an appeal of Neylon's dismissal to an arbitral board under the Railway Labor Act, 45 U.S.C. § 153, and pursuant to a collective-bargaining agreement between Neylon's union and his employer. The Board's ruling has also not been properly authenticated.
Neylon asserts that this court should take "notice of the arbitration board's findings of fact" and notes that the Board's findings "strongly support the Court denying BNSF's [summary judgment] motion." (Filing No. 125 at CM/ECF p. 1.) Neylon refers the court to Johnston v. BNSF Railway Co., Civ. No. 15-3685, 2017 WL 4685012 (D. Minn. Oct. 16, 2017), in which the court took notice of an arbitration board's order, including the factual findings therein, and vacated its previous order dismissing the plaintiff's FRSA claim on summary judgment.
Johnston notes that courts in other jurisdictions have held that a railroad employee seeking arbitration pursuant to the Railway Labor Act, 45 U.S.C. § 151, et seq., on his claim that his termination violated a collective-bargaining agreement may also bring a FRSA claim in federal court without running afoul of the election-of-remedies provision in the FRSA, 49 U.S.C. § 20109(f) ("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."). Johnston, 2017 WL 4685012, at *4 n.5. See also 12 Emp. Coord. Labor Relations § 49:112 (Westlaw 2019) (citing Reed v. Norfolk Southern Ry. Co., 740 F.3d 420 (7th Cir. 2014); Grimes v. BNSF Ry. Co., No. 13-60382, 2014 WL 1099049 (5th Cir. Mar. 18, 2014); Norfolk Southern Ry. Co. v. Perez, 778 F.3d 507 (6th Cir. 2015); Bjornson v. Soo Line R. Co., Civ. No. 14-4596, 2015 WL 5009349 (D. Minn. Aug. 24, 2015)). --------
I shall order the parties to file simultaneous briefs addressing several issues, as set forth below.
IT IS ORDERED:
1. On or before June 25, 2019, counsel for the parties shall file simultaneous briefs regarding Plaintiff's Notice of Supplemental Authority (Filing No. 125). The parties' briefing shall include a discussion of:
a. Whether the Eighth Circuit Court of Appeals has held, or would hold, that a railroad employee seeking arbitration pursuant to the Railway Labor Act, 45 U.S.C. § 151, et seq., on his claim that his termination violated a collective-bargaining agreement may simultaneously bring a FRSA claim in federal district court without running afoul of the election-of-remedies provision in the FRSA, 49 U.S.C. § 20109(f)?
b. Whether this court is bound by the decision of Public Law Board No. 7880 (Filing No. 125-1)?
c. Whether the Board's decision (Filing No. 125-1) that Plaintiff Neylon's employment with Defendant BNSF is to be reinstated and that Neylon is not entitled to receive back pay is dispositive of this case; specifically, is Neylon entitled to any further relief from this court?
d. Given the Board's decision (Filing No. 125-1), do the parties wish to proceed with a settlement conference before Magistrate Judge Bazis?
2. Defendant's Motion for Summary Judgment (Filing No. 118) will be held in abeyance pending completion of the above-requested briefs.
DATED this 11th day of June, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge