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Gonero v. Union Pacific Railroad Co.

October 16, 2009

ALEX GONERO, PLAINTIFF,
v.
UNION PACIFIC RAILROAD COMPANY, ANDREW RIBBING, LEO J. MARIN, JOHN PARKER, DENNIS MAGURES, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



MEMORANDUM AND ORDER RE: MOTION TO DISMISS

Plaintiff Alex Gonero brought this action in state court against Union Pacific Railroad Company ("Union Pacific"), Andrew Ribbing, Leo J. Marin, John Parker, and Dennis Magures for wrongful termination and intentional infliction of emotional distress relating to his termination of employment with Union Pacific. Having removed the action to federal court, the defendants now move to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

I. Factual and Procedural Background

In 2008, plaintiff was employed by Union Pacific as a machinist in Roseville, California, and was also Local Chairman of the International Association of Machinist union for Union Pacific's Roseville facility. (Compl. ¶¶ 4-6.) On March 2, 2008, plaintiff was instructed by his supervisor, Adam Nabus, to work on a train that was located on Track 6 inside the area of the repair facility known as the "house." (Id. ¶ 6.) Plaintiff alleges that before he started his assignment, he saw two other trains coming toward the house on Track 6 and noticed that two track switches were not properly set: the Track 6 derail switch was not lined with its blue flag displayed, and the track switch for trains to turn off the lead track and on to Track 6 was not lined to prevent trains from turning on to Track 6. (Id.)

Plaintiff alleges that both of these conditions appeared to him to pose an "imminent risk of physical harm" to him and other workers in the vicinity and to violate Union Pacific's work rules and the "Blue Flag" regulations of the Federal Railroad Administration. (Id.) Plaintiff adjusted the Track 6 derail switch, and was stopped by Nabus as he set out to adjust the lead track switch for Track 6. (Id. ¶ 8.) The two allegedly engaged in a dispute over plaintiff's safety concerns and the requirements of Union Pacific's work rules regarding safety disputes. (Id. ¶¶ 8-9.) Plaintiff alleges he requested, in his individual and official union capacities, that Nabus follow Union Pacific procedure and raise the safety concern with the mechanical officer in charge. (Id. ¶ 9.) Instead, Nabus allegedly instructed plaintiff to return to work in violation of Union Pacific's work rules. (Id.) Plaintiff called Scott Manhart, the mechanical officer in charge, to report his safety complaint, and thereafter returned to his job. (Id. ¶ 10.)

Sometime after this incident Manhart called plaintiff to discuss plaintiff's safety complaint and disagreement with Nabus. (Id. ¶ 11.) Plaintiff alleges that he reiterated that his complaint was made in both his individual and official union capacities, and notified Manhart that as a result of the unsafe conditions he would not be able to complete his work on the train engine on time. (Id.) During this conversation, Manhart allegedly did not tell plaintiff that his response to the safety violation was improper. (Id.)

On March 7, 2008, Leo J. Marin charged plaintiff with violating Union Pacific's work rules and insubordination. (Id. ¶ 13.) On June 18, 2008, Union Pacific conducted a disciplinary investigation, during which Andrew Ribbing acted as the workplace hearing officer in charge of conducting and determining the results of the investigation. (Id.) Sometime after the hearing plaintiff received a letter dated June 25, 2008 from Dennis Magures, Director of the Roseville facility, and signed by Ribbing notifying plaintiff that his employment with Union Pacific was terminated. (Id.) The letter stated plaintiff was terminated because of his 1) refusal to comply with instructions; 2) insubordination; and 3) because his acts of hostility, misconduct, or negligence affected Union Pacific's interests. (Id.)

Plaintiff alleges the reasons laid out in the June 25, 2008 letter are pretext not supported by the facts, and alleges the real reason Union Pacific terminated his employment was because it was Union Pacific's policy and custom to intimidate employees who protest unsafe or illegal working conditions. (Id. ¶ 14.)

On April 22, 2009, plaintiff filed a Complaint against the aforementioned parties in Placer County Superior Court alleging wrongful termination and intentional infliction of emotional distress relating to his termination of employment with Union Pacific. (See Docket No. 5.) The action was subsequently removed to this court under diversity jurisdiction on July 17, 2009. (Id. No. 1.) Defendants now move to dismiss plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

II. Discussion

A. Legal Standard

On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff needs to plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556-57).

In general, the court may not consider materials other than the facts alleged in the complaint when ruling on a motion to dismiss. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). The court may, however, consider additional materials if the plaintiff has alleged their existence in the complaint and if their authenticity is not disputed. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Here, defendants have provided the court with plaintiff's complaint filed with the Department of Labor. (Request for Judicial Notice ("RJN") Ex. A.) Plaintiff has alleged the existence of these documents in his Opposition (see Opp. Mot. to Dismiss 1:21-27), and no party has questioned their authenticity. Accordingly, the court will consider these documents in deciding defendants' motions to dismiss.

B. Wrongful Discharge in Violation of Public Policy

1. Election of Remedies Under 49 U.S.C. § 20109

Plaintiff asserts California common law claims of wrongful termination and intentional infliction of emotional distress. (Compl. ¶¶ 15-18, 23.) Defendants contend that plaintiff's entire complaint must be dismissed pursuant to the election of remedies provision of the Federal Railroad Safety Act ("FRSA"), 49 U.S.C.A. § 20109(f) (2008). The FRSA protects railroad employees who report safety concerns from discrimination and provides a mechanism for the resolution of claims of retaliation against employee whistleblowers. Id. § 20109(a)-(b), (d). Indeed, shortly after plaintiff's employment at Union Pacific was terminated, he took advantage of the FRSA's protections by filing a complaint with the Department of Labor on October 15, 2008 alleging § 20109 violations. (See RJN Ex. A.)

The doctrine of election of remedies precludes plaintiffs from pursuing remedies inconsistent with a previous election or conduct. See In re Reaves, 285 F.3d 1152, 1157 (9th Cir. 2002). "[W]hen, with knowledge of the facts, [a party] has clearly elected to proceed upon one [inconsistent remedy], he is thereby bound and will be estopped from invoking the other." Id. (quoting Calhoun v. Calhoun, 81 Cal. App. 2d 297, 305 (1947)).

To "elect" a remedy, however, typically requires more than the mere commencement of a suit: "a plaintiff may pursue an action against an identical defendant in several courts at the same time, even though inconsistent remedies are sought. But... there can be only one recovery." Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 69-70 (9th Cir. 1956). Generally, a conclusive election is made only where the first suit is prosecuted to a judgment or some elements of estoppel are present. See Roullard v. Rosenberg Bros. & Co., 193 Cal. 360, 365 (1924). In this case, plaintiff filed a complaint with the Department of Labor alleging violations under the FRSA. This in itself, therefore, would not ordinarily be enough to invoke the doctrine of election of remedies to bar plaintiff's state law claims.

Furthermore, the election of remedies doctrine will bar successive recoveries only where the remedies sought are inconsistent; it "has no application where a party has different remedies for the enforcement of different and distinct rights or the redress of different and distinct wrongs." Latman v. Burdette, 366 F.3d 774, 783 (9th Cir. 2004) (quoting Popp Telecom v. Am. Sharecom, Inc., 210 F.3d 928, 934 (8th Cir. 2000)). State common law wrongful termination claims are not displaced simply because Congress has also provided a statutory right against retaliation. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994). Each right has legally independent origins and, absent Congressional intent to preempt state law claims, is equally available to an aggrieved employee. The FRSA no longer preempts state law retaliation claims. 49 U.S.C.A. § 20109(g) (2008). Therefore, plaintiff could ordinarily pursue to finality his state common law claims in addition to vindicating his statutory rights under the FRSA, and the election of remedies doctrine would not bar multiple recoveries.

Congress can, however, further restrict by statute the avenues of relief available to potential plaintiffs. Section 20109(f) of the FRSA, titled "Election of remedies," states that: "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." 49 U.S.C.A. § 20109(f) (2008). Defendants contend that filing a complaint with the Department of Labor alleging § 20109 violations qualifies as "seek[ing] protection" under ...


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