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Gilmore v. Union Pacific Railroad Co.


May 20, 2010



This matter comes before the Court on Defendants' Union Pacific Railroad Company, Dennis Magures, John Parker, and Leo Marin ("Defendants'") Motion to Dismiss (Doc. #27) Plaintiffs' Jeremy Gilmore and Dana Gilmore's ("Plaintiffs'") Second Amended Complaint ("SAC") (Doc. #20) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants also move to strike portions of the SAC pursuant to Federal Rule of Civil Procedure 12(f). Plaintiffs oppose the motion to dismiss and strike.*fn1


Plaintiffs' SAC alleges a claim for relief for violation of the Federal Employers Liability Act ("FELA"), 45 U.S.C. §51 et seq., as well as state law claims for relief, stemming from Defendants' discipline and dismissal of Plaintiffs from their jobs at Union Pacific. Plaintiffs' First Amended Complaint ("FAC") was brought in Superior Court, and removed to federal court by Defendants under federal question jurisdiction. Defendants previously brought a motion to dismiss and strike claims from the FAC. The Court granted in part and denied in part the motion to dismiss, and denied the motion to strike. Specifically, the Court denied the motion to dismiss with respect to Plaintiffs' claims for wrongful discharge and invasion of privacy. The Court granted the motion to dismiss, without prejudice, with respect to Plaintiff's claims for marital status discrimination, and with prejudice with respect to the claims for intentional infliction of emotional distress. Defendant Carolyn Will was dismissed from the suit.

Plaintiffs were granted leave to amend the FAC, and consequently filed the SAC. Plaintiffs also filed a Motion for Reconsideration of the dismissal of the intentional infliction of emotional distress claims. The Court denied the Motion for Reconsideration (Docket #43). Plaintiffs re-plead the intentional infliction of emotional distress claims in the SAC, and Defendants have asked the Court to again dismiss these claims with prejudice. The Court reiterates its previous order dismissing those claims with prejudice.

The present Motion to Dismiss seeks dismissal of Plaintiff's amended marital status discrimination claim, dismissal or striking of the new claim for retaliation, and dismissal of individual defendants from the suit. Defendants also request Judicial Notice of the original complaint filed by Plaintiffs in Superior Court.


A. Legal Standard

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering 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 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

"Rule 12(f) provides in pertinent part that the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. . . Motions to strike are disfavored an infrequently granted. A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Bassett v. Ruggles et al., 2009 WL 2982895 at *24(E.D. Cal. Sept. 14, 2009)(internal citations omitted).

Generally, the Court may not consider material beyond the pleadings in ruling on a motion to dismiss for failure to state a claim. Sherman v. Stryker Corp., 2009 WL 2241664 at *2 (C.D. Cal. Mar. 30, 2009) (internal citations omitted). There are two exceptions: when material is attached to the complaint or relied on by the complaint, or when the court takes judicial notice of matters of public record, provided the facts are not subject to reasonable dispute. Id. Accordingly, the Court takes judicial notice as requested by Defendants of Plaintiffs' original Superior Court complaint, as it is a matter of public record.

B. Marital Status Discrimination Claim

Plaintiff Dana Gilmore ("Dana") amended her marital status discrimination claim, and now cites Union Pacific's work rules and conflict of interest policy as sources of discrimination, in addition to her previous allegations. As explained in the Court's previous order, marital status discrimination cases fall into two categories: status cases (where the person is discriminated against for being married, single, etc.) and conduit cases where the discrimination is based on the identity of who the person is married to. See Chen v. County of Orange, 96 Cal. App. 4th 926, 939-43 (2002). In conduit cases, the marital status serves only as a conduit for some other kind of animus. Such cases may be divided into cases where the animus is unlawful (such as race discrimination), and cases where the animus is not unlawful (such as political animus). Id. at 949. In conduit cases, "the plaintiff is the object of adverse action because of something about his or her spouse... However, conduit cases not based on some wrongful animus... have been universally met with rejection as valid marital status discrimination claims. Perhaps the best explanation for that is this: In such cases, the marriage qua marriage is irrelevant to the adverse action taken by the employer. What the employer really cares about is the substantive relationship between the plaintiff and someone else." Id.

Here, Dana continues to advance her marital status discrimination claim under both status and conduit theories, but ultimately fails to state a claim under either theory. Dana did not plead facts alleging an unlawful animus towards Jeremy based on his identity. Nor do the quoted workplace rules or conflict of interest policy form the basis of a marital status discrimination claim. Rule 1.6 states that, "Any act of hostility, misconduct or willful disregard or negligence affecting the interest of the company of its employees is cause for dismissal and must be reported. Indifference to duty, or to the performance of duty, will not be tolerated." Rule 1.2.7 states that, "Employees must not withhold information or fail to give all the facts to those authorized to receive information regarding unusual events, accidents, personal injuries or rule violations." Lastly, the conflict of interest policy states that, "A conflict of interest is a conflict between the private interests of an employee and his or her responsibilities as an employee for the corporation. All such conflicts should be avoided. No employee shall place himself or herself in a position that would have the appearance of being, or be construed to be, in conflict with the interests of the corporation. Full disclosure of all facts must be made to the corporation in advance and a determination made to protect the corporation's interest."

Dana alleges that while these rules appear facially neutral, they unfairly affect married employees, when both spouses work for Union Pacific. She alleges that in situations where both spouses work at Union Pacific, they are forced to either follow the rules and breach "the marital duty of loyalty," or break the rules and face discipline or termination. Thus, Dana alleges that the rules constitute marital discrimination.

While discrimination on the basis of marital status is unlawful pursuant to California Government Code 12940(a), an employer can reasonably regulate married employees. See Cal. Govt. Code § 12940(a)(3)(A) ("Nothing in this part relating to discrimination on account of marital status shall do either of the following: (A) Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or moral, the working of spouses in the same department, division or facility, consistent with the rules and regulations adopted by the commission. . .")

Based on the allegations in the SAC, it appears that whether or not Dana and Jeremy were married or in any other type of relationship, Dana would be required to proffer to Defendant any information that she had regarding his accident, pursuant to the workplace rules. While the rules no doubt leave Dana and other married co-employees in an awkward position should they be required to share information on a co-employee spouse, Dana does not plead facts showing that the rules unlawfully penalize the status of marriage so as to amount to a marital status discrimination claim. As Defendants point out, marital privacy is not a protected status. Indeed, Dana alleges that the work rules penalize the status of marriage, but only if the married couple are both Union Pacific Employees. However, if Dana were married to someone who was not an employee at Union Pacific, the work rules would not penalize or affect her status as a married person. Whether an employee is married, divorced or single makes no difference with respect to the rules.

Dana has had several opportunities to plead her claim, and has been unable to do so. Accordingly, Defendants motion to dismiss the marital discrimination claim is GRANTED, with prejudice.

C. Retaliation Claim

Defendants argue that Dana may not bring the California Fair Employment and Housing Act ("FEHA") retaliation claim, as it is a new claim that was not brought in the FAC, nor was it brought in the original superior court complaint. Defendants argue that Dana must get permission from the Court to add an additional claim. They request that the Court strike or dismiss this claim.

The Court's previous order granting in part and denying in part Defendants' motion to dismiss granted Plaintiffs leave to amend the FAC. The Court's order was not limited to amendment of existing claims, and Defendants do not demonstrate that they would be prejudiced by the addition of this claim. Furthermore, though Defendants argue that a scheduling order has been issued, thus requiring good cause to amend the pleadings, Defendants fail to notice that Plaintiffs' SAC was filed before the scheduling order was issued. Thus the SAC is not subject to the requirement for leave of the court and good cause to amend a pleading. Accordingly, the Court will not strike Dana's FEHA retaliation claim and will evaluate the claim on the merits.

California Government Code 12940(h) makes it unlawful for employers to retaliate against employees who have acted to protect rights afforded by FEHA. Section 12940(h) states that it is unlawful, "For any employer, labor organization, employment agency or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part."

To establish a prima facie case of retaliation under the FEHA, a plaintiff must show that (1) he or she engaged in a "protected activity," 2) the employer subjected the employee to an adverse employment action, and (3) the causal link existed between the protected activity and the employer's action. Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1042 (2005).

"To plead a claim for retaliation, plaintiffs must plead that they were retaliated against for complaining of conduct that either is prohibited by FEHA or that they reasonably and in good faith believed was prohibited by FEHA. As long as the mistake was reasonable and in good faith, it does not matter whether the mistake was one of law or fact." Chapin v. Aguirre, 2007 WL 1660740 at *3 (S.D. Cal. June 7, 2007) (internal citations omitted). "It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA... Strong policy consideration support this rule. Employees often are legally unsophisticated and will not be in a position to make an informed judgment as to whether a particular practice or conduct actually violates the governing antidiscrimination statute." Yanowitz, 36 Cal.4th at 1047-48. When an employee refuses to follow an order that she believes to be discriminatory, courts look to the totality of the circumstances to determine whether an employer knew that the employee was acting in opposition to believed FEHA discrimination. Id.

As previously discussed, Dana has not stated a claim for marital status discrimination. However, this does not rule out a retaliation claim, as Dana can still bring such a claim if she acted with a reasonable and good faith belief that Defendants' conduct and policies were unlawful.

Here, the SAC alleges that Dana "refused to inform on her husband in violation of her duties of loyalty and confidentiality to Jeremy. In consequence of Dana's objection and refusal to comply with the rules and policies which penalized the status of marriage, Union Pacific retaliated against Dana by removing her from service. . . and thereafter terminated Dana's employment with Union Pacific." SAC, p. 16. The SAC alleges that Defendants knew that Dana was opposing an order that she believed to be discriminatory. Additionally, Dana alleges she made a claim with the California Department of Fair Employment and Housing as a result of the alleged retaliation, and received a right to sue letter. The SAC alleges that Dana refused to follow orders that she believed to be discriminatory to provide Defendants with information regarding Jeremy's injuries, medical restrictions, activities around the house or elsewhere, doctor's visits, medication use or pain and suffering. She continued to refuse to provide this information even when faced with discipline and termination.

Taking these facts in the light most favorable to Plaintiffs, the Court finds that Dana has sufficiently alleged a cause of action for retaliation. Though Defendants did not engage in marital discrimination, Dana has alleged facts demonstrating a reasonable and good faith belief that Defendants' rules constituted unlawful marital discrimination, thus she may maintain her claim of retaliation at this stage. Defendants motion to dismiss the retaliation claim is DENIED.

D. Dismissal of Individual Defendants

Defendants ask the Court to dismiss all claims brought against individual defendants Dennis Magures ("Magures"), John Parker ("Parker") and Leo Marin ("Marin"). The SAC brings the three previously dismissed claims for intentional infliction of emotional distress, and a claim for invasion of privacy, against Magures, Parker and Marin. However, in Plaintiffs' Opposition, Plaintiffs state that the only claims brought against Magures, Parker and Marin are the claims for intentional infliction of emotional distress. The Court already dismissed the intentional infliction of emotional distress claims with prejudice, and declined to reconsider them, thus the Court reiterates that these claims are dismissed with prejudice from the SAC.

Because Plaintiffs deny bringing any other claims against the individual defendants, it appears that they either did not intend to bring the invasion of privacy claim against Magures, Parker and Marin, or do not oppose the dismissal of this claim against them. Accordingly, the invasion of privacy claim against Magures, Parker and Marin is dismissed, with prejudice. As there are no longer any claims against them, Magures, Parker and Marin are dismissed from this suit.*fn2


For the reasons set forth above, Defendants' Motion to Dismiss is hereby GRANTED in part and DENIED in part. The motion to dismiss the marital status discrimination claim is GRANTED,

WITH PREJUDICE. The motion to dismiss the invasion of privacy claim against Defendants Magures, Parker and Marin is GRANTED, WITH PREJUDICE. Defendants Magures, Parker and Marin are dismissed from this action. The motion to dismiss the retaliation claim is DENIED.


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