Charles Lee v. Norfolk Southern Railway Company

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1585

CHARLES T. LEE,

Plaintiff - Appellant,

v.

NORFOLK SOUTHERN RAILWAY COMPANY,

Defendant – Appellee.

------------------------

SECRETARY OF LABOR,

Amicus Supporting Appellant,

ASSOCIATION OF AMERICAN RAILROADS,

Amicus Supporting Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:13-cv-00004-MR-DSC)

Argued: May 12, 2015 Decided: September 17, 2015

Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

Reversed and remanded by published opinion. Judge Floyd wrote
the opinion, in which Judge Niemeyer and Judge Diaz joined.
ARGUED: William Cox Tucker, Jr., MAPLES TUCKER & JACOBS,
Birmingham, Alabama, for Appellant. John Bruce Lewis, BAKER &
HOSTETLER LLP, Cleveland, Ohio, for Appellee. Donald J. Munro,
JONES DAY, Washington, D.C., for Amicus Association of American
Railroads. Rachel Goldberg, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Amicus Secretary of Labor. ON BRIEF:
Rachel S. Decker, CARRUTHERS & ROTH P.A., Greensboro, North
Carolina, for Appellant. M. Daniel McGinn, Nicole A. Crawford,
BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P.,
Greensboro, North Carolina; Dustin M. Dow, BAKER & HOSTETLER
LLP, Cleveland, Ohio, for Appellee. M. Patricia Smith,
Solicitor of Labor, Jennifer S. Brand, Associate Solicitor,
William C. Lesser, Deputy Associate Solicitor, Megan E.
Guenther, Counsel for Whistleblower Programs, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of
Labor. Louis P. Warchot, Daniel Saphire, ASSOCIATION OF
AMERICAN RAILROADS, Washington, D.C.; Ronald M. Johnson, M.
Carter DeLorme, JONES DAY, Washington, D.C., for Amicus
Association of American Railroads.

2
FLOYD, Circuit Judge:

This appeal arises from two lawsuits filed by Charles Lee

against his employer, Norfolk Southern Railway Company (NS). In

the first lawsuit, Lee claimed that NS suspended him on the

basis of his race in violation of 42 U.S.C. § 1981. After the

district court granted NS summary judgment, Lee filed his second

lawsuit, claiming that NS in fact suspended him for reporting

rail safety offenses, in violation of the whistleblower

protection provision of the Federal Railroad Safety Act (FRSA).

The district court again granted summary judgment to NS, holding

that Lee’s second lawsuit was barred by the FRSA’s “Election of

Remedies” provision, which provides that “[a]n 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).

We disagree. As explained below, a suspension on the basis

of race is not “the same allegedly unlawful act” as a suspension

in retaliation for FRSA whistleblowing. Accordingly, we vacate

the district court’s judgment and remand for further

proceedings.

I.

Charles Lee works as carman for NS in Asheville, North

Carolina. As a carman, he is responsible for inspecting

3
railcars to identify potential service-related defects. In July

2011, NS suspended Lee without pay for six months. The parties

dispute the reason for the suspension. NS claims it suspended

Lee because he drank a beer on duty and then operated a company-

owned automobile in violation of company policy; Lee, who is

African-American, claims the suspension was motivated both by

his race and in retaliation for federal rail safety

whistleblowing.

On September 21, 2011, Lee filed his first lawsuit,

alleging that the suspension constituted racial discrimination

in violation of 42 U.S.C. § 1981. In the complaint, Lee alleged

several instances where NS favored white carmen over African-

American carmen. First, Lee contended that NS trained and

promoted white carmen pursuant to a collective bargaining

agreement with the carman’s union, but denied African-American

carmen those same opportunities. Second, Lee alleged that his

white supervisor also drank beer while on duty, and the

supervisor was not punished. Finally, Lee alleged several

instances of racial harassment, such as his co-workers hanging a

noose in his locker, threatening his children, and calling him

racial slurs.

Less than two months after filing his first lawsuit, Lee

filed a complaint with the Occupational Safety and Health

Administration (OSHA) under the FRSA’s whistleblower provision,

4
49 U.S.C. § 20109. That provision prohibits railroad carriers

from, among other things, discriminating against employees who

“refuse to violate or assist in the violation of any Federal

law, rule, or regulation relating to railroad safety or

security.” Id. § 20109(a)(2). According to Lee, federal law

required him to identify – or “bad order” – defective rail cars

for repair. NS capped the number of cars he could tag with such

orders, however, effectively requiring him to violate federal

law. When he refused to comply with the caps, Lee alleges that

NS suspended him in July 2011.

During discovery in the first lawsuit, NS’s attorney sought

to depose Lee about the OSHA whistleblower complaint, believing

it to be “part of [Lee’s] lawsuit here [in federal district

court] too.” J.A. 331. Lee’s attorney objected, noting that

Lee did not bring his FRSA claims in his first lawsuit, because

he was first required to exhaust his administrative remedies

before OSHA and the Secretary of Labor. 1 Although the parties

1
To pursue a FRSA whistleblower complaint under Section
20109, an employee must first file a complaint with OSHA, which
investigates the complaint and issues findings and a preliminary
order. See 49 U.S.C. § 20109(d)(1), (2). If either party
objects to OSHA’s determination, it may then seek a hearing and
final order from the Department of Labor. The FRSA also
contains a “kick-out” provision allowing an employee to bring
his FRSA action in a district court if the “Secretary of Labor
has not issued a final decision within 210 days after the filing
of the complaint and if the delay is not due to the bad faith of
the employee.” Id. § 20109(d)(3). Before using the kick-out
(Continued)
5
ultimately agreed to defer discussing the OSHA complaint, they

left the door open to returning to it when the matter was ripe.

Id. (NS’s attorney agreeing that if either party ultimately

decided to address the OSHA whistleblower complaint in the first

lawsuit, “then arrangements will be made at a later time to

allow that party to get into it”).

On September 21, 2012, OSHA dismissed Lee’s whistleblower

complaint after concluding that NS did not commit any FRSA

violations. Lee timely objected, and sought a hearing before a

Department of Labor administrative law judge (ALJ). On November

20, 2012, Lee gave notice to the ALJ that he intended to

exercise his right to file a lawsuit under the FRSA’s kick-out

provision. Lee did not, however, seek to amend his Section 1981

complaint to add his FRSA claims. He also did not notify the

district court that he intended to file a lawsuit under the

FRSA.

Accordingly, when the district court granted NS summary

judgment on December 12, 2012, the order addressed only Lee’s

Section 1981 claims, not his FRSA claims. First, the district

court concluded that, to the extent Lee’s claims were based on

the collective bargaining agreement, they were preempted by the

provision, the employee must provide 15 days’ notice to the
Department of Labor that he intends to file a lawsuit. Id.; 29
C.F.R. § 1982.114(a), (b).

6
Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., which requires

arbitration of such claims. The court further concluded that NS

was not vicariously liable for the individual instances of

racial harassment by Lee’s co-workers (including the incident

with the noose and use of racial slurs).

Less than a month after the district court granted NS

summary judgment in the first lawsuit, Lee filed his FRSA

retaliation lawsuit. The allegations in this second lawsuit

largely track those in Lee’s OSHA complaint. Lee again alleged

that he was tasked with tagging defective train cars with “bad

orders,” but that NS capped the number of cars he could tag. In

doing so, Lee contends NS pressured him to “violate federal rail

safety regulations and laws and violate NS’s own safety and

mechanical department rules.” J.A. 10. Notably, the specific

retaliatory acts are identical to the retaliatory acts alleged

in Lee’s first complaint, including that NS (i) refused to

properly train and promote him; (ii) allowed him to be racially

harassed by his co-workers; and (iii) suspended him on July

2011, purportedly for drinking a beer while on the job.

On May 20, 2014, the district court granted summary

judgment to NS on Lee’s FRSA claims, concluding that Lee’s first

lawsuit for racial discrimination under Section 1981 constituted

an election of remedies under FRSA Section 20109(f) that barred

7
Lee’s subsequent FRSA retaliation action. Lee then timely noted

this appeal.

II.

This appeal turns on the meaning of the FRSA’s Election of

Remedies provision. See 49 U.S.C. § 20109(f). We begin with a

brief summary of the relevant statutory background to provide

context for the parties’ arguments.

Congress enacted the FRSA in 1970 to promote safety in

railroad operations. See 49 U.S.C. § 20101 et seq. When it was

enacted, the FRSA did not contain a whistleblower provision.

In 1980, Congress amended the FRSA to add such a provision to

prohibit railroads from retaliating against employees who

provided information about violations of federal railroad safety

laws. See Federal Railroad Safety Authorization Act of 1980,

Pub. L. No. 96-423, § 10, 94 Stat. 1811 (1980); Rayner v. Smirl,

873 F.2d 60, 63-64 (4th Cir. 1989). Employees who sought to

bring an FRSA retaliation claim under this new provision were

required to do so under the mandatory arbitration procedure

established under the RLA. See Pub. L. No. 96-423, § 10, sec.

212(c)(1). The 1980 amendments also added the Election of

Remedies provision, which required an employee seeking

protection “under any other provision of law in connection with

the same allegedly unlawful act of an employer” to choose

8
“either to seek relief pursuant to this section [the FRSA] or

pursuant to such other provision of law.” Pub. L. No. 96-423, §

10, sec. 212(d).

In 2007, Congress again amended the FRSA to “enhance[]

administrative and civil remedies for employees” and “ensure

that employees can report their concerns without the fear of

possible retaliation or discrimination from employers.” H.R.

Conf. Rep. No. 110-259, at 348 (2007), reprinted in 2007

U.S.C.C.A.N. 119, 180-81, 2007 WL 2162339. Among other changes,

Congress eliminated the requirement that retaliation claims be

resolved in arbitration under the RLA. In its place, Congress

established an administrative procedure under which retaliation

complaints are first resolved by OSHA and the Secretary of Labor

(and then in the district courts after exhausting these

administrative procedures). 2

Congress also added provisions stating that nothing in the

FRSA’s retaliation provision preempted or diminished other

rights of employees and that the rights provided by FRSA could

not be waived. See 49 U.S.C. § 20109(g), (h). But Congress did

not remove the Election of Remedies provision, which, in its

2
Specifically, the FRSA now incorporates by reference the
rules and procedures applicable to whistleblower cases brought
under the Wendell H. Ford Aviation Investment and Reform Act for
the 21st Century. See 49 U.S.C. § 20109(d)(2)(A) (citing 49
U.S.C. § 42121(b)).

9
current form, 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.” 49 U.S.C.

§ 20109(f).

III.

In its summary judgment order, the district court divided

the Election of Remedies provision into four discrete elements:

(1) an employee (2) may not seek protection (3) under the FRSA

and another provision of law (4) for the same allegedly unlawful

act of the railroad carrier. Because the district court

concluded that Lee did not contest the first, second, and fourth

elements, the court devoted most its analysis to the third

element — that is, to its conclusion that Lee’s first lawsuit

under Section 1981 was an attempt to “seek protection under

another provision of law.”

Contrary to the district court’s finding, Lee expressly

argued in opposing summary judgment that a suspension on the

basis of race is not “the same allegedly unlawful act” as a

suspension in retaliation for FRSA whistleblowing. J.A. 554.

Lee also renewed that argument here on appeal. Appellant’s Br.

at 47-48. Accordingly, we find that Lee properly preserved this

argument for appeal. See United States v. Zayyad, 741 F.3d 452,

459 (4th Cir. 2014) (“To preserve an argument on appeal, the

10
[party] must object on the same basis below as he contends is

error on appeal.”). We therefore turn to the merits of Lee’s

argument.

IV.

This appeal presents a question of statutory

interpretation, which we review de novo. EEOC v. Great Steaks,

Inc., 667 F.3d 510, 519 (4th Cir. 2012). In construing a

statute’s meaning, we “begin, as always, with the language of

the statute.” Duncan v. Walker, 533 U.S. 167, 172 (2001). “In

that regard, we must first determine whether the language at

issue has a plain and unambiguous meaning with regard to the

particular dispute.” Ignacio v. United States, 674 F.3d 252,

254 (4th Cir. 2012) (citation omitted). If the plain language

is unambiguous, we need look no further. Id. On the other

hand, if the text of a statute is ambiguous, we look to “other

indicia of congressional intent such as the legislative history”

to interpret the statute. CGM, LLC v. BellSouth Telecomms.,

Inc., 664 F.3d 46, 53 (4th Cir. 2011) (citation omitted).

A statute is ambiguous if it “lends itself to more than one

reasonable interpretation.” Newport News Shipbuilding & Dry

Dock Co. v. Brown, 376 F.3d 245, 248 (4th Cir. 2004). We

determine the “plainness or ambiguity of statutory language . .

. by reference to the language itself, . . . the specific

11
context in which that language is used, and the broader context

of the statute as a whole.” Yates v. United States, 135 S. Ct.

1074, 1081-82 (2015) (citation and quotation omitted).

As set forth below, we conclude that the Election of

Remedies provision is unambiguous because it is susceptible to

only 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. And even if

we did find the provision ambiguous, we would still reverse

because the legislative history and context of the statute

demonstrates that the provision does not sweep as broadly as NS

suggests.

A.

We begin with the plain language of the statute. Whether

the FRSA’s Election of Remedies provision bars Lee’s suit

depends on the meaning of the phrase “the same allegedly

unlawful act.” The words in this phrase are not defined in the

FRSA or in any other relevant statutory provision. Accordingly,

we give the words their ordinary dictionary meanings.

Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2002

(2012).

Lee concedes that the “act” he challenges – his July 2011

suspension – is the same in both lawsuits. But the Election of

12
Remedies provision applies to “the same allegedly unlawful act”

– not merely “the same act.” And Lee’s suspension standing

alone is not “unlawful.” Rather, to become unlawful, the

suspension must have (of course) violated a law. See Black’s

Law Dictionary 1771 (10th ed. 2014) (defining “unlawful act” to

mean “[c]onduct that is not authorized by law; a violation of a

civil or criminal law”).

In the first lawsuit then, the “allegedly unlawful act” was

the suspension on the basis of race in violation of Section

1981; in the second lawsuit, the “allegedly unlawful act” was

the suspension on the basis of retaliation for Lee’s

whistleblowing regarding rail safety violations. These are

distinct causes of action with different elements and burdens of

proof. Indeed, 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. Araujo v. N.J. Transit Rail Operations,

Inc., 708 F.3d 152, 159 (3d Cir. 2013); see also Cash v. Norfolk

S. Ry. Co., No. 6:13-CV-00056, 2015 U.S. Dist. LEXIS 4293, at

*26-27 (W.D. Va. Jan. 14, 2015) (same). 3

3 Assuming Lee could make a prima facie case of
discrimination under the McDonnell Douglas framework, NS could
rebut Lee’s prima facie case if it could articulate a
“legitimate, nondiscriminatory reason” for the suspension.
Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 251, n. 9 (4th
(Continued)
13
 In short, the “act” may be the “same” in both lawsuits,

but the “act” is “allegedly unlawful” for fundamentally

different reasons. Under the ordinary meaning of the statute

then, a suspension on the basis of race and a suspension on the

basis of whistleblowing are not the “same allegedly unlawful

act.” See Black’s Law Dictionary 1541 (10th ed. 2014) (defining

“same” to mean “[i]dentical or equal; resembling in every

relevant respect”); see also Merriam-Webster Dictionary,

available at http://www.merriam-webster.com/dictionary/same

(defining “same” as “resembling in every relevant respect”)

(saved as ECF opinion attachment).

NS disagrees, though its interpretation hinges more on the

phrase’s grammar than on the meaning of its words. According to

NS, the word “same” cannot modify “unlawful” because those words

are parallel adjectives that independently or separately modify

the verb “act.” Under this reading, the Election of Remedies

provision applies whenever “a single act is ‘allegedly unlawful’

Cir. 2015) (citation omitted). Lee would then be required to
prove “disparate treatment by, for instance, offering evidence
demonstrating that the employer’s explanation is pretextual.”
Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003).
In contrast, under the FRSA’s burden-shifting scheme, if
Lee could establish a prima facie case, NS would then be liable
unless it could prove “by clear and convincing evidence, that
[it] would have taken the same unfavorable personnel action in
the absence of that behavior.” 49 U.S.C. § 42121(b)(2)(B)(ii).

14
for multiple different reasons.” Assoc. of Am. R.R.’s Amic. Br.

at 8-9. 4

While creative, this argument creates its own grammatical

issues. For example, according to several widely respected

style guides, adjectives that independently modify a noun must

be separated by a comma. See The Chicago Manual of Style § 6.33

(16th ed. 2010); see also William A. Sabin, The Gregg Reference

Manual, § 123(c) (11th ed. 2008). A comma should not be used,

however, if the second adjective and the noun can be thought of

as a single unit or phrase, because in that scenario the first

adjective modifies the entire phrase. Chicago Manual of Style §

6.33; see also Gregg Reference Manual § 169 (“When two

adjectives precede a noun, the first adjective may modify the

combined idea of the second adjective plus the noun. In such

cases do not separate the adjectives by a comma.”).

4
NS attempts to support this argument by citing dicta from
a non-binding, out of circuit, unpublished district court
decision. See Sereda v. Burlington N. Santa Fe R.R. Co., Civil
No. 4:03-CV-10431, 2005 WL 5892133, at *4 (S.D. Iowa Mar. 17,
2005) (“The [election of remedies] provision is addressed not to
the character or motivation of the employer’s allegedly unlawful
act, but to the act itself.”). The Sereda court does not cite
any case law supporting this reasoning. Nor could it, as no
other case appears to have reached the same result. Moreover,
Serada made this statement in dicta in the context of concluding
that FRSA preempted state law claims – a conclusion that
Congress overruled in 2007 when it clarified that FRSA does not
preempt state law whistleblower claims. Accordingly, we decline
to follow Sereda here.

15
 This distinction supports Lee’s interpretation. Congress

did not use a comma between “same” and “allegedly unlawful,”

thus indicating that those words do not independently modify

“act.” Moreover, Black’s Dictionary defines the words “unlawful

act” together, further indicating that, as a term of art, those

words act as a single unit or phrase. Black’s Law Dictionary

1771 (10th ed. 2014). 5 Accordingly, under the grammatical rules

set forth above, “same” is an adjective modifying the phrase

“unlawful act.”

Of course, we do not mean to suggest that this appeal turns

entirely on punctuation. As the Supreme Court has recognized,

however, “the meaning of a statute will typically heed the

commands of its punctuation”. See U.S. Nat’l Bank of Or. v.

Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 454-55 (1993).

That is true here: Congress’s decision to omit a comma between

“same” and “allegedly unlawful” is wholly consistent with the

plain meaning of the phrase. Even if grammatical rules

supported this result – and as discussed above, they do not – we

would decline to read the phrase in a manner so plainly contrary

to its ordinary meaning.

5 According to the Chicago Manual of Style, an adjective and
noun should be treated as a single phrase – a so-called
“compound” – when the phrase has been “accepted into the general
vocabulary and can be found in the dictionary . . . .” Chicago
Manual of Style § 7.78.

16
 At bottom, both the definitions of the words “the same

allegedly unlawful act” and accepted grammatical rules

demonstrate that the Election of Remedies provision does not

prohibit Lee’s second lawsuit. And because Congress has spoken

clearly, no further analysis is required. The plain meaning of

the statute settles the issue. See Ignacio, 674 F.3d at 257

(“[A]bsent an ambiguity in the words of a statute, our analysis

begins and ends with the statute’s plain language.”).

B.

Even if we did find that NS’s grammatical argument rendered

the Election of Remedies provision ambiguous, we would still

reverse.

According to the Secretary of Labor (appearing as an amicus

on Lee’s behalf), both the statutory context and legislative

history make clear that the Election of Remedies provision only

requires an employee to choose between proceeding under the FRSA

or another law prohibiting retaliation for the same types of

rail safety or security-related whistleblowing addressed in the

FRSA. In other words, the provision does not require a choice

between the FRSA and statutes aimed at curbing racial

discrimination. We agree.

As noted above, when the FRSA was enacted in 1970, it did

not contain a whistleblower provision. Despite this omission,

17
railroad employees could still seek protection under Section

11(c) of the Occupational Safety and Health Act (OSH Act), which

protects workers in all industries from retaliation for filing a

complaint, instituting a proceeding, testifying, or exercising

rights related to safety and health in the workplace. See 29

U.S.C. § 660(c). The OSH Act merely acts as a default, however.

“Where Congress has enacted an industry-specific statute

conferring authority over working conditions on another agency .

. . the OSH Act does not apply.” Power Fuels, LLC v. Fed. Mine

Safety & Health Review Comm’n, 777 F.3d 214, 216-217 (4th Cir.

2015); see also 29 U.S.C. § 653(b)(1). The Federal Rail

Administration (FRA) is one such agency, as it is authorized to

regulate railroads, including workplace safety. 49 U.S.C. §

20103(a); 49 C.F.R. § 1.89.

The FRA does not, however, exercise exclusive authority

over all aspects of railroad employee workplace safety. In

1978, the FRA issued a Policy Statement clarifying the

relationship between the FRA and the OSH Act in this context.

Railroad Occupational Safety and Health Standards; Termination,

43 Fed. Reg. 10583 (March 14, 1978). As set forth in that

statement, the FRA explained that it decided to exercise its

regulatory authority to regulate workplace safety only in the

area of “railroad operations,” which “refers to the movement of

equipment over the rails.” Id. The FRA explained that it would

18
not preempt OSHA’s jurisdiction over workplace safety in other

parts of the railroad industry, such as in “railroad yards,

shops, and associated offices.” Id.

This dichotomy seems to have created an unintended

regulatory gap: a railroad employee could sue under the OSH

Act’s retaliation provision if the alleged safety violation

occurred in railroad yards, shops, and offices, but could not do

so if the violation occurred in connection with the movement of

equipment over the rails. In 1980, Congress appears to have

filled this gap by amending the FRSA to add a whistleblower

provision similar to Section 11(c) of the OSH Act. In doing so,

Congress also added the Election of Remedies provision.

According to the member of Congress who managed the bill in the

House of Representatives, the Election-of-Remedies provision was

intended to

clarify[] the relationship between the remedy provided
here and a possible separate remedy under [the OSH
Act]. Certain railroad employees, such as employees
working in shops, could qualify for both the new
remedy provided in this legislation, or an existing
remedy under [the OSH Act]. It is our intention that
pursuit of one remedy should bar the other, so as to
avoid resort to two separate remedies, which would
only result in unneeded litigation and inconsistent
results.

126 Cong. Rec. 26532 (Sept. 22, 1980) (statement of Rep. Florio)

(emphasis added).

19
 This history supports the Secretary of Labor’s assertion

that Congress did not intend the Election of Remedies provision

to require railroad employees to choose between pursuing a rail

safety retaliation claim on one hand, and a racial

discrimination claim on the other. Instead, Congress only

intended to bar railroad employees from seeking duplicative

relief under overlapping anti-retaliation or whistleblower

statutes that provide protections similar to the protections in

FRSA, such as Section 11(c) of the OSH Act and various state

versions of the OSH Act, many of which track Section 11(c)

nearly verbatim. See, e.g., Ind. Code Ann. § 22-8-1.1-38.1; cf.

N.C. Gen. Stat. §§ 95-128; 95-241. 6

Congress’s addition of subsection (h) in 2007 further

supports a narrow interpretation of the Election of Remedies

provision. That subsection precludes applying the Election of

Remedies provision to “diminish” an employee’s rights under

“any” law. 49 U.S.C. § 20109(h). NS contends Lee’s rights are

6 NS counters that it is unaware of any instance in which a
railroad employee has sought to recover under both Section 11(c)
of the OSH Act and the FRSA. This argument is misplaced: the
question is not whether any employees have tried to recover
under both statutes, or even whether they could do so. Rather,
the question is whether Congress intended the Election of
Remedies provision to address that scenario when enacting the
provision in 1980, regardless of whether that scenario ever
subsequently became commonplace. And as the above history
demonstrates, Congress intended the Election of Remedies
provision to address only the potential overlap between the OSH
Act, various state versions of the OSH Act, and the FRSA.

20
not diminished under its interpretation, because he can still

choose which law he wants to proceed under; he just cannot

choose both. But as the Sixth Circuit persuasively explains,

the Election of Remedies provision dilutes an employee’s rights

to some extent whenever it is enforced because “[r]estricting an

employee to only one of the numerous arrows in his quiver

obviously reduces the number of options available to him.”

Norfolk S. Ry. Co. v. Perez, 778 F.3d 507, 514 (6th Cir. 2015)

(“Under the election-of-remedies provision, in other words, even

the option ultimately chosen by the employee is rendered less

valuable to him by virtue of what he has given up in order to

choose it.”). At a minimum then, 49 U.S.C. § 20109(h) suggests

that the Election of Remedies provision should not be construed

as broadly as NS suggests.

This legislative history and statutory context also support

our interpretation of the plain meaning of the statute. Again,

the ordinary meaning of the phrase “the same unlawful act” means

the act must be unlawful for the same reasons. A termination

based on whistleblowing under the FRSA, the OSH Act, and various

state versions of the OSH Act satisfies this requirement because

each of those statutes is aimed at preventing retaliation for

engaging in protected whistleblowing activities regarding safety

and health in the workplace. The same is not true for Section

21
1981, which seeks to curb racial discrimination. Accordingly,

the Election of Remedies provision does not bar Lee’s lawsuit.

V.

Finally, NS contends that “important federal policies”

prohibiting “claim-splitting” support its interpretation of the

Election of Remedies provision. The rule against claim

splitting “prohibits a plaintiff from prosecuting its case

piecemeal and requires that all claims arising out of a single

wrong be presented in one action.” Sensormatic Sec. Corp. v.

Sensormatic Elecs. Corp., 273 F. App’x 256, 265 (4th Cir. 2008)

(citation omitted). NS claims the “procedural rules” of Section

20109 – namely the requirement that FRSA claims must first be

brought before OSHA and the Department of Labor, and then later

in federal district court – “interfere” with claim-splitting

rules by making it impossible for a plaintiff to bring FRSA and

Section 1981 claims together in a single lawsuit. Thus, NS

asserts that the Election of Remedies provision should be read

as a “de facto” substitute for the rule against claim-splitting.

We reject this argument for several reasons. First,

nothing in the plain language of the Election of Remedies

provision suggests that it should be read as a substitute for a

rule against claim-splitting. Rather, as set forth above, the

provision merely requires employees to choose between proceeding

22
under various workplace safety whistleblower statutes. Second,

numerous federal whistleblower statutes contain procedural rules

virtually identical to those in the FRSA, yet all but one lack a

similar Election of Remedies provision. See, e.g., 49 U.S.C. §

31105 (whistleblower provision in context of commercial motor

vehicle safety); 49 U.S.C. § 42121 (same, air safety); 42 U.S.C.

§ 5851 (same, energy safety). 7

NS does not explain why Congress would have sought to

prevent claim-splitting through the Election of Remedies

provision in the rail safety context, but not in the context of

commercial vehicle, air, and energy workplace safety. That

Congress did not do so strongly indicates that traditional

claim-splitting rules apply equally in the federal whistleblower

context. Indeed, courts have held as much. See Thanedar v.

Time Warner, Inc., 352 F. App’x 891, 898-99 (5th Cir. 2009)

(holding that claim-splitting rules barred a plaintiff’s lawsuit

under Sarbanes-Oxley’s whistleblower provision, which contains

procedural rules – including a “kick-out” provision – similar to

those in the FRSA, where the plaintiff had previously sued for

7 The only exception is the National Transit Systems
Security Act (NTSSA), 6 U.S.C. § 1131 et seq. See id. § 1142.
The NTSSA is modeled on the FRSA, the primary difference being
that the NTSAA governs rail safety in the context of commuter
railroads, urban rapid transit systems, and short-haul passenger
services, unlike the FRSA, which governs rail safety in context
of freight rail operations.

23
racial discrimination under Title VII). Nothing suggests a

different result is warranted in the FRSA context.

True, under the FRSA’s “kick-out” provision, Lee was

required to wait 210 days after filing his administrative

complaint before bringing his FRSA claim in court. 49 U.S.C.

§ 20109(d)(3). But nothing required him to bring his Section

1981 lawsuit before the FRSA’s waiting period expired. Indeed,

under the four-year statute of limitations period applicable to

his Section 1981 claim, 8 Lee had ample time to wait until the 210

day period expired, at which point he could have filed his

Section 1981 and FRSA claims together in the same lawsuit, thus

avoiding a potential claim-splitting defense.

Moreover, because Lee filed his administrative complaint

with OSHA on September 21, 2011, the 210-day waiting period

expired on March 18, 2012. At that point, Lee could have filed

suit under the FRSA and moved to consolidate the claim with his

Section 1981 lawsuit, which was still pending. At a minimum, he

could have notified the district court that he intended to bring

FRSA claims. Instead, Lee waited to file his FRSA lawsuit until

after the district court granted summary judgment in his Section

1981 lawsuit. In light of these facts, traditional rules of

claim-splitting may well bar Lee’s FRSA claim.

8
See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382
(2004).

24
 On the other hand, an argument could be made that NS

acquiesced to splitting the claims when its counsel agreed to

defer discussing the FRSA administrative complaint at Lee’s

deposition in the first lawsuit. See Super Van Inc. v. City of

San Antonio, 92 F.3d 366, 371 (5th Cir. 1996) (holding that “a

second action may be brought by a plaintiff on the same cause of

action if the parties have agreed in terms or in effect that the

plaintiff may split [its] claim, or the defendant has acquiesced

therein” (internal quotation marks omitted)); see also Rotec

Indus. v. Mitsubishi Corp., 348 F.3d 1116, 1119 (9th Cir. 2003)

(holding that a party with knowledge of split claim litigation

must promptly raise the issue “while both proceedings are

pending”). Because the district court did not address this

issue, we leave it to that court to decide NS’s claim-splitting

defense in the first instance on remand. See Kubicko v. Ogden

Logistics Servs., 181 F.3d 544, 555 n.9 (4th Cir. 1999) (“It is

the general rule . . . that a federal appellate court does not

consider an issue not passed upon below.”).

In any event, the issue on appeal is whether the Election

of Remedies provision bars Lee’s second lawsuit, not whether

traditional claim-splitting rules do so. And as set forth

above, the Election of Remedies plainly does not apply here.

25
 VI.

For the foregoing reasons, we reverse the district court’s

order and remand for further proceedings.

REVERSED AND REMANDED

26