Dohogne v. Terminal Railroad Association

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

PATRICIA DOHOGNE, )

)

Plaintiff, )

)

vs. )

) Case No. 3:20-cv-01228-GCS

TERMINAL RAILROAD )

ASSOCIATION, BRAD RAGLAND, )

ADAM MAHLANDT, MATT )

WHITNEY, JOE BENTRUP, and )

ANTHONY BRUNS, )

)

Defendants.1

MEMORANDUM & ORDER

SISON, Magistrate Judge:

INTRODUCTION AND BACKGROUND

On October 9, 2020, Plaintiff Patricia Dohogne brought suit against Defendants

Terminal Railroad Association (“TRA”), Michael Dundas, Brad Ragland, Matt Whitney,

Adam Mahlandt, Joe Bentrup, Anthony Bruns, and Jessica Kasten for claims related to

her termination from her employment as a train dispatcher in September 2016. (Doc. 1,

Exh. 1). Plaintiff filed an amended complaint on August 2, 2021. (Doc. 36). In her amended

complaint, Plaintiff alleges that Defendants TRA, Whitney, Kasten, Ragland, Mahlandt,

Bentrup, and Bruns terminated her employment on October 9, 2015 and failed to renew

1 Plaintiff does not identify Michael Dundas as a defendant in the body of her amended complaint.

See (Doc. 36). Accordingly, the Court considers this defendant voluntarily dismissed, as she states no claims

against him. See Raab v. Wendel, Case No. 16-CV-1396, 2019 WL 1060856, at *2 (E.D. Wisc. Mar. 6,

2019)(finding that entities not named in the caption or body of the complaint are not defendants). Though

Defendants argue the same is true of Matt Whitney, Plaintiff does identify Defendant Whitney and

Defendant Kasten in the body of her complaint, which is sufficient for including them as defendants. See

id.; (Doc. 36, p. 4, 5).

her employment on September 30, 2016. Plaintiff claims this was an act of retaliatory

discharge after she reported evidence that the crew she worked with violated Federal

Railroad Administration train signal rules. Accordingly, she brings a claim for retaliatory

discharge against TRA (Count I). (Doc. 36). Plaintiff also asserts that Defendants TRA,

Ragland, Mahlandt, Bentrup, and Bruns each intentionally caused Plaintiff severe

emotional distress and damage to her reputation by suspending her without pay on July

18, 2015 and by firing her on October 9, 2015 (Count II, III, IV, V and VI). Id.

Defendants removed this case from the Madison County Circuit Court to this

Court on November 12, 2020. (Doc. 1). Now before the Court is Defendants’ motion to

dismiss Plaintiff’s amended complaint. (Doc. 37). For the reasons delineated below, the

motion to dismiss is GRANTED.

FACTUAL ALLEGATIONS

Plaintiff is the primary caretaker of her daughter, a then-minor child suffering

from Post-Traumatic Stress Disorder (“PTSD”). (Doc. 36, p. 2). In order to care for her

daughter, Plaintiff provided transportation and care when her daughter suffered panic

attacks and needed to see a psychologist. Id. Though Plaintiff needed to miss work to care

for her daughter, she was also consistently promoted during her tenure with TRA.

Throughout her twelve-year career with TRA, Plaintiff was promoted from switchperson,

to conductor, to crest tower operator, to yardmaster, and finally to the rank of train

dispatcher. Id. at p. 1. This position is the highest-paid position for craft employees on the

railroad. Id.

In 2014, Plaintiff applied for leave under the Family Medical Leave Act (“FMLA”)

through her supervisor, Defendant Kasten. (Doc. 36, p. 2). Though Ms. Kasten approved

her leave, she did not advise Plaintiff that her benefits would expire within a twelve-

month period. Id.

On August 24, 2014, train dispatcher Christopher Calhoun filed a report with TRA

officials regarding an unsafe recurring technical malfunction in the signal control system.

(Doc. 36, p. 2). Nearly one year later, on June 13, 2015, Plaintiff observed evidence that a

locomotive had been operated past a traffic control signal which had displayed a “stop”

signal. Id. at 2-3. This malfunction could have resulted in a violation of the Federal

Railroad Safety Act (“FRSA”); accordingly, Plaintiff contacted her immediate supervisor,

Defendant Bruns, to inform him of the malfunction. Id. at p. 3. However, Defendant Bruns

ordered the crew back to work regardless of the malfunction. Id.

Plaintiff reported this incident to the Federal Railroad Safety Administration

(“FRA”), and as a result, was contacted by Defendant Bentrup shortly thereafter. (Doc.

36, p. 3). Defendant Bentrup emphasized to Plaintiff during this meeting that Defendant

Bruns had not violated any FRSA regulations. Id. at p. 4. Nevertheless, approximately one

week later, TRA suspended Defendant Bruns for a period of thirty days for the violation.

Id.

On July 18, 2015, three days after Defendant Bruns returned from his suspension,

Plaintiff requested time to care for her daughter under the FMLA. (Doc. 36, p. 4). During

a hearing on this issue, Defendant Kasten testified under oath that another TRA

employee, whose name she could not recall, contacted her outside of normal hours to

question Plaintiff’s eligibility for FMLA benefits. Id. Shortly thereafter, on July 20, 2015,

one of the defendants2 suspended Plaintiff for sixty days for her failure to reapply for

FMLA coverage when it had lapsed the previous month. Id. This suspension voided

Plaintiff’s right to collect special unemployment insurance that most railroaders carry. Id.

at p. 5. No other TRA employee had been suspended for this infraction in the company’s

history. Id. Under TRA’s Progressive Discipline Policy, Plaintiff’s punishment would

have been a verbal warning. Id.

Plaintiff accepted the discipline after her union representative warned her that

TRA intended to permanently dismiss her if she attempted to exercise her contractual

right to an investigation. (Doc. 36, p. 5). When she returned to work on September 21,

2015, TRA assigned Plaintiff to a portion of the railroad with which Plaintiff was

unfamiliar. Id. at p. 6. On September 23, 2015, Plaintiff believed she observed a train

control system failure; however, this belief was not accurate. Id. TRA disciplined Plaintiff

for this error, and she was permanently fired on October 9, 2015. Id.

Plaintiff attempted to get her position back, but on September 30, 2016, TRA signed

a four-year labor contract with the union representing train dispatchers at the company.

(Doc. 36, p. 6). Plaintiff alleges that TRA drafted a specific contract provision which

incentivized other members of the union to keep Plaintiff dismissed. Id. at p. 7. Paragraph

two of the agreement included terms stipulating that dispatchers would receive cash

2 Plaintiff does not specify which defendant suspended her in her complaint.

payments of $10,000 in the fourth-year of the contract so long as Plaintiff did not return

to employment at TRA. Id. If Plaintiff did return to work, dispatchers would receive only

$1,000. Id.

Prior to filing suit in state court, Plaintiff also filed a complaint against TRA under

the FRSA. (Doc. 37, p. 4 n.4). Under the FRSA, Plaintiff was entitled to a hearing before a

United States Department of Labor Administrative Law Judge (“ALJ”). Plaintiff received

a fully-adjudicated, four-day hearing through this remedy. Id. On May 27, 2020, the ALJ

issued his decision and order in TRA’s favor, finding that TRA did not retaliate against

Plaintiff in violation of the FRSA when it suspended her, and later, terminated her

employment. Id. Though Plaintiff filed a petition for review of the ALJ’s decision with the

United States Department of Labor Administrative Review Board (“ARB”), the ARB

dismissed the appeal for failure to prosecute on June 11, 2021. Id. at p. 9 n.6.

LEGAL STANDARDS

Defendants move to dismiss Count I of Plaintiff’s first amended complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6). When considering a motion to

dismiss under Rule 12(b)(6), this Court determines whether a complaint includes

enough factual content to give the opposing party notice of what the claim is and the

grounds upon which it rests. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007),

Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009). In order to satisfy this standard, the factual

allegations within a complaint must “raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 554-555. For the purposes of evaluating a motion to dismiss, the

Court will assume the complaint’s allegations are true, even if factually dubious. Id. See

also Warth v. Seldin, 422 U.S. 490, 501 (1975)(noting that trial courts are to construe the

complaint in favor of the complaining party).

Although courts are to evaluate the complaint in the light most favorable to the

non-moving party, courts “need not accept as true legal conclusions or threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements.”

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Rule 8 of the Federal Rules of Civil

Procedure requires that a complaint provide a “short and plain statement of the claim

showing that the pleader is entitled to relief” in a manner that provides the defendant

with “fair notice” of the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93

(2007)(citing Twombly, 550 U.S. at 555; quoting FED. R. CIV. PROC. 8(a)(2)). Therefore, in

ruling on a motion to dismiss for failure to state a claim, a court must “examine whether

the allegations in the complaint state a ‘plausible’ claim for relief.” Arnett v. Webster,

658 F.3d 742, 751 (7th Cir. 2011)(citing Iqbal, 556 U.S. at 677-678). A complaint “must

contain sufficient factual matter, to state a claim to relief that is plausible on its face,”

rather than providing allegations that do not rise above the speculative level. Id.

Nevertheless, at the pleading stage, general factual allegations of an injury arising from

the defendant’s conduct may be sufficient; the Court presumes that general allegations

“embrace those specific facts that are necessary to support the claim.” Lujan v. National

Wildlife Fed., 497 U.S. 871, 889 (1990).

Defendants also move to dismiss Counts II-VI of Plaintiff’s first amended

complaint under Illinois’s two-year statute of limitations. The statute of limitations is an

affirmative defense, which is evaluated under the standard for a motion for judgment

on the pleadings. When determining whether to dismiss a complaint on the basis of a

defendant’s affirmative defense, the appropriate standard to apply is outlined in Rule

12(c), rather than Rule 12(b). See Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687,

690 (7th Cir. 2012)(citing Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009)). Rule 12(c)

governs judgment on the pleadings. See FED. R. CIV. PROC. 12(c). However, the standard

for judgment on the pleadings under Rule 12(c) is the same as that outlined for a motion

to dismiss under Rule 12(b). See Flenner v. Sheahan, 107 F.3d 459, 461 (7th Cir. 1997).

“When the existence of a valid affirmative defense is so plain from the face of the

complaint” that there is no means for the plaintiff to state a claim, the Court may grant

relief and dismiss the suit. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002).

ANALYSIS

In their motion to dismiss, Defendants allege that Plaintiff’s claim for retaliatory

discharge must fail because there is an adequate, alternative remedial scheme available

to her. (Doc. 37, p. 4). In the alternative, Defendants assert that Plaintiff’s claim is barred

by the FRSA’s election of remedies clause and by both issue and claim preclusion. Id. at

p. 6. As to Counts II-VI, Defendants rely on the affirmative defense of the statute of

limitations to dismiss Plaintiff’s claims for intentional infliction of emotional distress

(“IIED”). Id. at p. 10.

I. Whether an Alternative Remedial Scheme is Available for Plaintiff’s

Retaliatory Discharge Claim

“The tort of retaliatory discharge was not intended to serve as a substitute means

for enforcement of particular laws.” Stebbings v. Univ. of Chicago, 726 N.E.2d 1136, 1140

(Ill. App. Ct. 2000). Illinois courts are concerned with ensuring that some remedy is

available to deter conduct contrary to public policy; if that remedy is available by statute,

then common law remedies are excessive and redundant. See, e.g., Zwick v. Inteliquent,

Inc., 83 F.Supp.3d 804, 809 (N.D. Ill. 2015)(dismissing a retaliatory discharge claim where

Sarbanes-Oxley provided a remedy for the same underlying conduct and expressly

prohibited bringing an additional common law claim) (internal citations omitted). The

existence of an “adequate alternative remedy” is therefore one of the factors a court

considers in deciding whether to allow a retaliatory discharge claim. Stebbings, 726 N.E.2d

at 1140. See also Brandon v. Anesthesia & Pain Management Associates, Ltd., 277 F.3d 936, 943

(7th Cir. 2002)(applying Illinois law).

Defendants assert that an adequate, alternative remedy exists for Plaintiff’s

common-law retaliatory discharge claim under the FRSA, 49 U.S.C. § 20109. (Doc. 37, p.

5). The FRSA provides protections for railroad carrier employees and prohibits

discharging an employee for providing “information . . . regarding any conduct which

the employee reasonably believes constitutes a violation of any Federal law, rule or

regulation relating to railroad safety or security . . . if the information or assistance is

provided to or an investigation stemming from the provided information is conducted

by . . . a Federal . . . law enforcement agency.” 49 U.S.C. § 20109(a)(1)(A). Any employee

who alleges discharge in violation of the FRSA may “seek relief in accordance with the

provisions of this section . . .” to be initiated by filing a complaint with the Secretary of

Labor. 49 U.S.C. § 20109(d). Available remedies are “all relief necessary to make the

employee whole[,]” including reinstatement with the same seniority status; any backpay,

with interest; and compensatory and punitive damages. 49 U.S.C. § 20109(e). However,

in order to obtain relief under this statute, a plaintiff must commence the action “not later

than 180 days after the date on which the alleged violation” occurred. 49 U.S.C. §

20109(d)(2)(A)(ii).

Where there is even slight doubt that an alternative remedy does not apply to a

particular plaintiff, that remedy is not an adequate alternative which would render a

common-law retaliatory discharge complaint superfluous. See United States ex rel. Rockey

v. Ear Institute of Chicago, LLC, 92 F. Supp.3d 804, 829 (N.D. Ill. 2015). In Rockey, the

defendant alleged that the plaintiff, who had been fired for reporting suspected Medicare

fraud, had an adequate alternative remedy through the False Claims Act (“FCA”). Id. at

828. The defendant relied on another district court case which predicted that Illinois

courts would not recognize the tort of retaliatory discharge due to the remedies present

in the FCA. Id. (citing United States ex rel. Chandler v. Hektoen Institute for Medical Research,

35 F. Supp.2d 1078, 1083 (N.D. Ill. 1999). The Rockey court, however, noted that the

Seventh Circuit undermined that prediction in Brandon, wherein it stated that such a

finding would extinguish the “whistle-blower” claim of retaliatory discharge under

Illinois law. Id. at 828-829 (citing Brandon, 277 F.3d at 943). The Rockey court, then relied

on a Seventh Circuit case, which stated in dicta that the FCA might be an adequate,

alternative remedy for a similar plaintiff in light of a recent amendment to the FCA. Id. at

829 (citing Halasa v. ITT Educ. Servs., Inc., 690 F.3d 844, 847-848 (7th Cir. 2012)). Because it

was “unclear” as to whether an adequate remedy existed under the FCA, the Court found

that the plaintiff could proceed on her retaliatory discharge claim. Id. See also Howell v.

BNSF Railway Company, 14 C 9977, 2015 WL 3528237, at *4 (N.D. Ill. June 4, 2015)(noting

that there “remained a residual doubt – admittedly slight, but a doubt nonetheless –

whether reporting misconduct to internal supervisors [wa]s protected by the FCA’s

amended anti-retaliation provision.”).

Permitting a plaintiff to proceed on a retaliatory discharge claim where there is

even a slight chance that the plaintiff may not have alternative remedies protects the

public policy goals outlined in the common-law tort. Unlike criminal statutes, which

“ensur[e] to the benefit of the State,” the civil remedies outlined in common-law

retaliatory discharge “alleviate the plight of those employees who are threatened with

retaliation and forgo their rights.” Kelsay v. Motorola, Inc., 384 N.E.2d 353, 359 (Ill. 1978).

The tort is also designed to deter employers from risking the threat of lesser sanctions in

order to engage in retaliatory discharge. Id. Furthermore, even if an alternative remedy

exists, the “Illinois Supreme Court looks at this fact” not as dispositive, but as “one of

many factors in the pragmatic approach toward determining when the tort of retaliatory

discharge will lie.” Brandon, 277 F.3d at 945.

Though similar, the FRSA and retaliatory discharge tort remedies share one

significant difference. Whereas a retaliatory discharge claim carries a five-year statute of

limitations, see Henon v. Lever Bros. Co., 449 N.E.2d 196, 197 (Ill. App. Ct. 1983), a plaintiff

must bring a claim under the FRSA within 180 days. See Howell, 2015 WL 3528237, at *4.

The difference in the statute of limitations, however, is of no import in determining

whether an adequate alternative remedy exists as the Plaintiff originally pursued her

claim under the FRSA before filing suit in state court.

When evaluating whether the FRSA is an adequate, alternative remedy to

retaliatory discharge, the pertinent question is therefore “whether the FRSA’s remedial

scheme, considered together with other factors, is sufficiently strong to warrant rejecting”

the retaliatory discharge claim in this case. Shaffer v. National R.R. Passenger Corp., No. 11

C 970, 2011 WL 4916493, at *3 (N.D. Ill. Oct. 17, 2011). Here, the Court finds that the FRSA

“is precisely the sort of ‘adequate, alternative remedy’ that would lead Illinois courts not

to recognize [Plaintiff’s] retaliatory discharge tort.” Howell, 2015 WL 3528237, at *3

(internal citations omitted).The Court is persuaded by the district court’s reasoning in

Howell and believes it is applicable to the instant case.

In Howell, the plaintiff alleged that his employer violated Illinois common law by

firing him in retaliation for reporting an on-the-job injury. 2015 WL 3528237, at *1. His

employer moved to dismiss the plaintiff’s common law retaliatory discharge claim

arguing that the plaintiff failed to allege that his discharge violated public policy. Id. at

*1-2. The plaintiff responded that his discharge violated statutory public policy as

outlined in the Federal Rail Safety Act. Id. at *3. The district court, however, rejected the

plaintiff’s argument and granted his employer’s motion to dismiss. Id. at *5. The court

noted that one of the factors in determining whether to allow a retaliatory discharge claim

was whether there was an “adequate alternative remedy.” Id. at *3 (quotations and

citations omitted). The court reasoned that the FRSA did provide for an adequate

alternative remedy because it offered comprehensive relief, including attorneys’ fees, to

individuals who claimed they were discriminated against for notifying the railroad

carrier of a work related injury. Id. at *3-4. The court further rejected the plaintiff’s

contention that the FRSA was not an adequate remedy because it could only protect those

rights through an administrative proceeding, as opposed to a jury trial. Id. at *4. In doing

so, the court relied on prior Supreme Court precedent finding that the absence of a jury

as a fact finder was a neutral factor. Id. (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322,

332 n.19 (1979)). The key inquiry was whether the proceeding was fair and adequate, and

because the Supreme Court had previously found that a prior SEC administrative

proceeding met that standard, it stood to reason that a “jury-less FRSA proceeding” could

as well. Id.

Like Howell, the FRSA specifically provides Plaintiff with complete and

comprehensive relief. In Howell, the FRSA protected an individual from retaliation for

complaining about an on-the-job injury. Here, although the nature of the retaliation is

different, it is still protected under the FRSA. As noted previously, the FRSA protects an

individual from retaliation for reporting violations of any regulation relating to railroad

safety or security, which is what Plaintiff did in the instant case. See 49 U.S.C. §

20109(a)(1)(A). Moreover, as the Howell court noted, the relief provided under the FRSA

is even more comprehensive than under common law because the FRSA provides for the

recovery of attorneys’ fees. 2015 WL 3528237, at *4 (citing 49 U.S.C. § 20109(e)(2)(C)).

Because the FRSA provides for a complete, comprehensive, and an arguably more

superior remedial scheme than that provided for under the common law, the Court finds

it is appropriate to reject Plaintiff’s common law retaliatory discharge claim. Count I is

thus dismissed.

II. Whether Plaintiff’s Count I is barred under the FRSA’s election of remedies

clause, or barred by either claim or issue preclusion

Even if the FRSA fails to provide an adequate, alternative remedy for retaliatory

discharge, Plaintiff’s Count I must still be dismissed because Plaintiff has already sought

relief for this claim through an administrative body capable of issuing binding relief. The

FRSA expressly forbids a plaintiff from seeking relief under both the FRSA and another

law for the same acts. See 49 U.S.C. § 20109(f). Prior to filing this suit, Plaintiff sought

relief against TRA under the FRSA.3 (Doc. 37, Exh. A, p. 29-30). In both actions, Plaintiff

alleges that TRA suspended and discharged her in retaliation for making an internal

complaint regarding the June 13, 2015 stop signal incident. See (Doc. 36); (Doc. 37, Exh.

A, p. 3-4, 5-12, 33-39). As Plaintiff first elected to pursue relief under the FRSA for these

acts of alleged retaliation, she cannot now receive relief under Illinois common law by

the clear text of the FRSA.

Plaintiff argues that she abandoned her claim when she filed suit in state court

because she did not continue her appeal before the ARB. (Doc. 38, p. 4). The regulations

to the FRSA stipulate that a plaintiff may bring an action at law in the appropriate United

3 The Court may take judicial notice of administrative decisions without converting a motion to

dismiss to one for summary judgment. See, e.g., Opoka v. Immigration and Naturalization Serv., 94 F.3d 392,

395 (7th Cir. 1996)(noting that a court may take judicial notice of an administrative law judge’s decision).

See also Henson v. CSC Credit Serv., 29 F.3d 280, 284 (7th Cir. 1994)(holding that a district court may take

judicial notice of matters of public record without converting a motion to dismiss into one for summary

judgment).

States District Court when 210 days have passed since the filing of a complaint and there

is no final order of the Secretary of Labor or their designee. See 29 C.F.R. § 1982.114(a).

An ALJ’s decision is only considered a final order of the Secretary if there is no timely

petition for review before the ARB. See 29 C.F.R. § 1982.109(e). As Plaintiff filed a timely

review before the ARB, there is no final decision from the Secretary in this case. (Doc. 37,

p. 9 n.6).

However, Plaintiff’s reliance on this regulation still fails. The regulations only

permit a plaintiff to bring suit in a district court if “there is no showing that there has

been a delay due to the bad faith of the complainant.” 29 C.F.R. § 1982.114(a) (emphasis

added). Plaintiff herself admits that she failed to obtain a final decision of the Secretary

through appeal to the ARB because she abandoned her claim before the ARB in order to

pursue relief in state court. (Doc. 38, p. 4).4 In other words, Plaintiff did not receive a final

decision of the Secretary because she purposefully evaded such a decision in order to

have her case heard in another forum. The Plaintiff’s dilatory conduct before the ARB

and her evasive motive cannot be considered good faith without undermining the

purpose of that requirement in the regulation. See, e.g., Research Automation, Inc. v.

Schrader-Bridgeport Intern., Inc., 626 F.3d 973, 979 n.2 (7th Cir. 2010)(considering forum

shopping as bad faith) (internal citations omitted). See also Fennell v. Illinois Cent. R. Co.,

987 N.E.2d 355, 360-361 (Ill. 2012)(stating that “[d]ecent judicial administration cannot

4 Even if this were not an indication of bad faith, the Court notes that Plaintiff first filed suit in state

court, which is not permitted under the FRSA. In order for Plaintiff’s argument to succeed, the Court would

need to consider Defendants’ decision to remove this case to federal court as if Plaintiff had filed suit in

district court under the FRSA. Noting no argument as to why that is appropriate, the Court declines to do

so.

tolerate forum shopping as a persuasive or even legitimate reason for burdening

communities with litigation that arose elsewhere and should, in all justice, be tried

there.”).

Furthermore, Plaintiff’s claim is also barred by the doctrines of both claim and

issue preclusion. Claim preclusion is known as the doctrine of res judicata. It bars a

plaintiff’s complaint when: (i) the identity of the parties and (ii) the identity of the cause

of action are the same between the first and second lawsuits, and (iii) the first suit

concluded with a final judgment on the merits of the action. See Adams v. City of

Indianapolis, 742 F.3d 720, 736 (7th Cir. 2014) (internal quotations omitted). “Whether

there is an identity of the cause of action depends on whether the claims comprise the

same core of operative facts that give rise to a remedy.” Id. In comparison, issue

preclusion, also known as “collateral estoppel,” bars a complaint when: (i) the issue

sought to be precluded is the same as an issue in prior litigation, (ii) the issue was actually

litigated in that litigation, (iii) the determination of the issue was essential to the eventual

judgment, and (iv) the party against whom estoppel is invoked was fully represented in

the prior action. Adams, 742 F.3d at 746 (internal citations omitted).

Both Plaintiff and TRA were parties in her administrative suit. Furthermore,

Plaintiff’s suit before the ALJ concerned whether TRA retaliated against her after she

reported Defendant Bruns “running” a stop signal and when she attempted to take

additional leave under the FMLA. The determination of this issue was central to the ALJ’s

decision as to whether TRA retaliated against Plaintiff. Likewise, here, the purpose of

Plaintiff’s suit is whether TRA retaliated against Plaintiff based on the same set of facts.

Plaintiff again argues that the ARB did not issue a decision on the merits, and as

such, the ALJ’s decision was not “final.” (Doc. 36, p. 5). However, to adopt Plaintiff’s

reasoning would allow parties to sidestep the effect of the res judicata and collateral

estoppel doctrines. This would allow parties to continuously litigate claims or issues that

they already had a full opportunity to litigate so long as an appeal is not pursued. This

result runs counter to the very purpose of the claim and issue preclusion doctrines. See,

e.g., Adams, 742 F.3d at 746 (noting that res judicata and collateral estoppel are intended to

reduce repetitive litigation) (internal citations omitted). Accordingly, an order is

considered “final” for preclusion purposes if it “ends the litigation and leaves nothing to

be decided in the district court.” Edmonds v. Operating Engineers Local 139, 620 F.Supp.2d

966, 973 (W.D. Wisc. 2009)(citing Adams, 874 F.2d at 394). As the ALJ considered the same

operative facts and the same underlying issues in order to arrive at a decision in Plaintiff’s

case, both claim and issue preclusion serve to bar Count I from being heard before this

Court.

III. Whether Plaintiff’s remaining claims are barred by Illinois’s statute of

limitations

Both the statute of limitations and the rules that are “an integral part of the statute

of limitations,” such as equitable estoppel, are treated as substantive for purposes of the

Erie doctrine. See Hollander v. Brown, 457 F.3d 688, 694 (7th Cir. 2006). The Court therefore

looks to Illinois law governing the statute of limitations for IIED claims. In Illinois, IIED

is a form of personal injury; accordingly, the applicable statute of limitations is two years.

See Feltmeier v. Feltmeier, 798 N.E.2d 75, 85 (Ill. 2003). As Plaintiff initiated her suit

approximately four years after the latest incident alleged in her amended complaint, her

case is barred by the statute of limitations unless equitable estoppel applies. (Doc. 14, Exh.

1, p. 10).

Under Illinois law, the doctrine of equitable estoppel may suspend the statute of

limitations during any period in which the defendant took specific, affirmative steps to

prevent the plaintiff from suing. See Hollander, 457 F.3d at 694. For instance, when a

defendant has “lulled” the plaintiff into delaying by promising not to raise the statute of

limitations defense or by concealing necessary evidence, equitable estoppel may

nevertheless permit that plaintiff to bring an otherwise untimely claim. See Swann &

Weiskopf, Ltd. v. Meed Associates, Inc., 711 N.E.2d 395, 401 (Ill. App. Ct. 1999); Beynon Bldg.

Corp. v. National Guardian Life Ins. Co., 455 N.E.2d 246, 252 (Ill. App. Ct. 1983). Though

equitable estoppel is designed to prevent parties from “taking advantage of [their] own

wrongdoing,” Neaterour v. Holt, 544 N.E.2d 846, 851 (Ill. App. Ct. 1989), a plaintiff must

show that the defendant misrepresented or concealed a material fact in order to apply

equitable estoppel to the statute of limitations. See Parks v. Kownacki, 737 N.E.2d 287, 296

(Ill. 2000); see also Clay v. Kuhl, 727 N.E.2d 217, 223 (Ill. 2000).

Plaintiff does not allege that Defendants prevented her from timely bringing this

claim. Instead, she asserts that she was diligently pursuing her claim through the FRSA

administrative law process until June 11, 2021, when the ARB denied Plaintiff’s appeal

for failure to prosecute and that the statute of limitations should be tolled to account for

that time. (Doc. 38, p. 5). However, as Plaintiff herself states, in order to “prevail on an

equitable tolling claim, a plaintiff must show that ‘she has been pursuing her rights

diligently, and .. . that some extraordinary circumstance stood in her way.” (Doc. 38, p.

6)(citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Plaintiff does not explain how her

exhaustion under the FRSA constitutes an extraordinary circumstance justifying

equitable tolling in this case. Furthermore, Plaintiff herself admits that she had not been

pursuing her rights diligently throughout the time it took the ARB to deny Plaintiff's

appeal; instead, Plaintiff chose not to prosecute in order to take her case to state court.

(Doc. 38, p. 5). Equitable tolling is not available when a plaintiff does not meet the statute

of limitations due to his or her own dilatory conduct. See, e.g., Donald v. Cook County

Sheriff's Dept., 95 F.3d 548, 562 (7th Cir. 1996) (noting that application of equitable tolling

requires that the plaintiff demonstrate “reasonable diligence”) (internal citations

omitted). As Plaintiff intentionally failed to exercise reasonable diligence to exhaust her

available remedies under the FRSA, equitable tolling is not available to her, and the

statute of limitations bars Plaintiff's remaining ITED claims.

CONCLUSION

For the above-stated reasons, the undersigned GRANTS Defendants’ motion to

dismiss. (Doc. 37). The Clerk of the Court is directed to enter judgment in favor of

defendants and to close the case.

IT IS SO ORDERED.

Digitally signed

DATED: June 15, 2022. Bitten 2} [Raa ise sison 2

13:15:49 -05'00'

GILBERTC.SISON

United States Magistrate Judge

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