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Henley v. Pacific Gas and Electric Co.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 21, 2010

GARY HENLEY, PLAINTIFF,
v.
PACIFIC GAS AND ELECTRIC COMPANY, LOCAL UNION NUMBER 1245 OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS AND DOES 1- 50, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

SCHEDULING CONFERENCE ORDER Discovery Cut-Off: 8/29/11 Non-Dispositive Motion Filing Deadline: 9/15/11 Non-Dispositive Motion Hearing Date: 10/21/11 9:00 Ctrm. 10 Deadline: 9/29/11 Dispositive Motion Filing

I. Date of Scheduling Conference. October 20, 2010.

Dispositive Motion Hearing Date: 10/31/11 10:00 Ctrm. 3 Settlement Conference Date: 9/13/11 10:00 Ctrm. 10 Pre-Trial Conference Date: 12/5/11 11:00 Ctrm. 3 Trial Date: 1/18/12 9:00 Ctrm. 3 (JT-10 days)

II. Appearances Of Counsel. Barsotti & Baker, LLP by Todd B. Barsotti, Esq., appeared on behalf of Plaintiff. Clarence & Dyer LLP by Nicole Howell Neubert, Esq., appeared on behalf of Defendant Pacific Gas and Electric Company. Jennifer Marston, Esq., appeared on behalf of Defendant Local Union Number 1245 of IBEW.

III. Summary of Pleadings

Plaintiff's Contentions

1. Plaintiff worked for PG&E for over 31 years and was terminated on February 5, 2009. Plaintiff's performance evaluations were above average and met goals and expectations for his position. At the time of his termination, he was earning between $44.00 and $49.00 per hour. He earned approximately $167,000.00 in 2008.

2. Plaintiff contends that he was wrongfully terminated without good cause. In addition, Plaintiff contends his termination was discriminatory based on the fact he was a man. Plaintiff contends he was blamed for an accident which was not his fault. Plaintiff filed a grievance which Plaintiff contends IBEW-1245 failed to adequately investigate and failed to adequately and fairly represent him.

3. Plaintiff has suffered damages for past wage loss, future loss of earnings and other employment benefits according to proof.

Defendant PG&E's Contentions

4. This action arises from Plaintiff's termination by PG&E on February 5, 2009. Plaintiff was working for PG&E as an electric crew foreman on December 14, 2008 and was dispatched, along with two journeymen linemen and one apprentice lineman, to a job in Fresno to work on a downed power line. During that job, one of the journeymen linemen, working under Plaintiff's direction, came into contact with an energized source, causing him to lose part of both arms. Subsequently, PG&E conducted a full and fair investigation regarding that electrical contact, which revealed that Plaintiff had violated several company policies and procedures related to grounding overhead lines, tailboard briefings, reporting on clearance procedures, maintaining safe work distances and ensuring proper work area protection. Defendant terminated Plaintiff on February 5, 2009 as a result of the findings of this investigation.

5. IBEW-1245 timely filed a grievance challenging Plaintiff's termination on Plaintiff's behalf shortly after his termination. PG&E and IBEW-1245 participated fully in the grievance process and the parties agreed to close the grievance without adjustment after presenting the case to a Local Investigating Committee. Ample good cause existed to terminate Plaintiff and Defendant denies that it terminated Plaintiff on any other basis.

6. Defendant prays that Plaintiff take nothing by reason of the First Amended Complaint, that judgment be rendered in favor of Defendant PG&E, that PG&E be awarded its costs of suit incurred in this action, and for such other relief as the Court deems proper.

Defendant IBEW-1245's Contentions

7. IBEW-1245 agrees that PG&E investigated Plaintiff's work performance on December 14, 2008 and concluded that it had just cause to terminate Plaintiff's employment.

8. As stated by PG&E, IBEW-1245 timely filed a grievance on Plaintiff's behalf to challenge his termination. IBEW-1245 closed its grievance without adjustment, after concluding Plaintiff's termination was supported by just cause because Plaintiff had violated numerous work rules while directing his crew on December 14, 2008, which violations caused him to fail to appreciate the hazards present and led to his crewmember losing part of both of his arms. IBEW-1245 denies that it closed the grievance on any other basis. On September 29, 2009, Plaintiff received written notification from IBEW-1245 of the decision to close the grievance without adjustment, and he had also been previously notified of the decision to close the grievance sometime before September 29, 2009.

9. Defendant prays that Plaintiff take nothing by reason of the First Amended Complaint, that judgment be rendered in favor of Defendant IBEW-1245, that IBEW-1245 be awarded its attorneys' fees and costs of suit incurred in this action; and for such other relief as the Court deems proper.

IV. Orders Re Amendments To Pleadings

1. The parties do not anticipate amending the pleadings at this time.

V. Factual Summary

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings

1. Plaintiff was employed by PG&E.

2. Plaintiff was terminated by PG&E on February 5, 2009.

3. At the time of Plaintiff's termination he was an electric crew foreman.

4. On December 14, 2008, Plaintiff was dispatched, along with two journeymen linemen and an apprentice lineman, to a job in Fresno to work on a downed power line.

5. While performing work on that job, a journeyman lineman came into contact with an energized source and injured both of his arms.

6. Plaintiff was a member of IBEW-1245 at the time of his termination.

7. On February 13, 2009, a grievance was filed challenging Plaintiff's termination.

8. IBEW-1245 and PG&E closed the grievance without adjustment.

B. Contested Facts

1. Defendant PG&E conducted a full and fair investigation into the December 14, 2009 incident.

2. Defendant PG&E had good cause to terminate Plaintiff for violations of company policies and procedures related to grounding overhead lines, tailboard briefings, reporting on clearance procedures, safe work distance and work area protections.

3. Defendant PG&E failed to take similar adverse employment action against a female co-worker arising out of the same incident on December 14, 2008.

4. Defendant terminated Plaintiff on the basis of his gender.

5. Plaintiff claims he filed the grievance contesting his termination, while the Union maintains that it filed the grievance challenging Plaintiff's termination.

6. Plaintiff was notified of the decision to close the grievance prior to September 28, 2009.

7. Defendant IBEW-1245 and Defendant PG&E agreed that IBEW-1245 would not fairly and adequately pursue Plaintiff's grievance in exchange for other agreements unrelated to Plaintiff's termination.

8. Defendant IBEW-1245 failed to fairly represent Plaintiff in processing the grievance filed over his termination and acted arbitrarily, in bad faith or for discriminatory reasons in deciding to close his grievance following the Local Investigating Committee.

VI. Legal Issues

A. Uncontested

1. Jurisdiction is proper inasmuch as this is an action for breach of a labor agreement, which is a cause of action that arises exclusively under federal law, 29 U.S.C. § 185, and any colorable pendant cause of action for violations of California Fair Employment and Housing Act ("FEHA"). Jurisdiction also exists under 28 U.S.C. § 1331 and 29 U.S.C. §§ 185, et seq. Supplemental jurisdiction is invoked under 28 U.S.C. § 1367.

2. Venue is proper under 28 U.S.C. §§ 1441(a) and 1391.

3. The parties agree that the substantive law of the State of California provides the rule of decision for supplemental claims.

B. Contested

1. Whether Plaintiff was terminated for a valid and substantiated reason and good cause related to his clear violations of company policies.

2. Whether Plaintiff was terminated for a valid and substantiated reason related to his clear violations of company policies unrelated to any alleged gender discrimination.

3. Whether Plaintiff timely filed his claims against Defendants.

4. Whether IBEW-1245's processing of Plaintiff's grievance and/or decisions to close the grievance filed on Plaintiff's behalf following the Local Investigating Committee proceedings was a violation of IBEW-1245'S duty of fair representation owed to Plaintiff.

VII. Consent to Magistrate Judge Jurisdiction

1. The parties have not consented to transfer the case to the Magistrate Judge for all purposes, including trial.

VIII. Corporate Identification Statement

1. Any non-governmental corporate party to any action in this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the party's equity securities. A party shall file the statement with its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information.

IX. Discovery Plan and Cut-Off Date

1. The parties are ordered to complete all non-expert discovery on or before June 1, 2011.

2. The parties are directed to disclose all expert witnesses, in writing, on or before July 15, 2011. Any rebuttal or supplemental expert disclosures will be made on or before July 29, 2011. The parties will comply with the provisions of Federal Rule of Civil Procedure 26(a)(2) regarding their expert designations. Local Rule 16-240(a) notwithstanding, the written designation of experts shall be made pursuant to F. R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. Failure to designate experts in compliance with this order may result in the Court excluding the testimony or other evidence offered through such experts that are not disclosed pursuant to this order.

3. The parties are ordered to complete all discovery, including experts, on or before August 29, 2011.

4. The provisions of F. R. Civ. P. 26(b)(4) shall apply to all discovery relating to experts and their opinions. Experts may be fully prepared to be examined on all subjects and opinions included in the designation. Failure to comply will result in the imposition of sanctions.

X. Pre-Trial Motion Schedule

1. All Non-Dispositive Pre-Trial Motions, including any discovery motions, will be filed on or before September 15, 2011, and heard on October 21, 2011, at 9:00 a.m. before Magistrate Judge Gary S. Austin in Courtroom 10.

2. In scheduling such motions, the Magistrate Judge may grant applications for an order shortening time pursuant to Local Rule 142(d). However, if counsel does not obtain an order shortening time, the notice of motion must comply with Local Rule 251.

3. All Dispositive Pre-Trial Motions are to be filed no later than September 29, 2011, and will be heard on October 31, 2011, at 10:00 a.m. before the Honorable Oliver W. Wanger, United States District Judge, in Courtroom 3, 7th Floor. In scheduling such motions, counsel shall comply with Local Rule 230.

XI. Pre-Trial Conference Date

1. December 5, 2011, at 11:00 a.m. in Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger, United States District Judge.

2. The parties are ordered to file a Joint Pre-Trial Statement pursuant to Local Rule 281(a)(2).

3. Counsel's attention is directed to Rules 281 and 282 of the Local Rules of Practice for the Eastern District of California, as to the obligations of counsel in preparing for the pre-trial conference. The Court will insist upon strict compliance with those rules.

XII. Motions - Hard Copy

1. The parties shall submit one (1) courtesy paper copy to the Court of any motions filed. Exhibits shall be marked with protruding numbered or lettered tabs so that the Court can easily identify such exhibits.

XIII. Trial Date

1. January 18, 2012, at the hour of 9:00 a.m. in Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger, United States District Judge.

2. This is a Jury Trial

3. Counsels' Estimate Of Trial Time:

a. Ten days.

4. Counsels' attention is directed to Local Rules of Practice for the Eastern District of California, Rule 285.

XIV. Settlement Conference

1. A Settlement Conference is scheduled for September 13, 2011, at 10:00 a.m. in Courtroom 10 before the Honorable Gary S. Austin, United States Magistrate Judge.

2. Unless otherwise permitted in advance by the Court, the attorneys who will try the case shall appear at the Settlement Conference with the parties and the person or persons having full authority to negotiate and settle the case on any terms at the conference.

3. Permission for a party [not attorney] to attend by telephone may be granted upon request, by letter, with a copy to the other parties, if the party [not attorney] lives and works outside the Eastern District of California, and attendance in person would constitute a hardship. If telephone attendance is allowed, the party must be immediately available throughout the conference until excused regardless of time zone differences. Any other special arrangements desired in cases where settlement authority rests with a governing body, shall also be proposed in advance by letter copied to all other parties.

4. Confidential Settlement Conference Statement

At least five (5) days prior to the Settlement Conference the parties shall submit, directly to the Magistrate Judge's chambers, a confidential settlement conference statement. The statement should not be filed with the Clerk of the Court nor served on any other party. Each statement shall be clearly marked "confidential" with the date and time of the Settlement Conference indicated prominently thereon. Counsel are urged to request the return of their statements if settlement is not achieved and if such a request is not made the Court will dispose of the statement.

5. The Confidential Settlement Conference Statement shall include the following:

a. A brief statement of the facts of the case.

b. A brief statement of the claims and defenses, i.e., statutory or other grounds upon which the claims are founded; a forthright evaluation of the parties' likelihood of prevailing on the claims and defenses; and a description of the major issues in dispute.

c. A summary of the proceedings to date.

d. An estimate of the cost and time to be expended for further discovery, pre-trial and trial.

e. The relief sought.

f. The parties' position on settlement, including present demands and offers and a history of past settlement discussions, offers and demands.

XV. Request For Bifurcation, Appointment Of Special Master, Or Other Techniques To Shorten Trial

1. On the issue of punitive damages, if any, the amount shall be tried in a second phase in a continuous trial before the same jury.

XVI. Related Matters Pending

1. There are no related matters.

XVII. Compliance With Federal Procedure

1. The Court requires compliance with the Federal Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. To aid the court in the efficient administration of this case, all counsel are directed to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and keep abreast of any amendments thereto.

XVIII. Effect Of This Order

1. The foregoing order represents the best estimate of the court and counsel as to the agenda most suitable to bring this case to resolution. The trial date reserved is specifically reserved for this case. If the parties determine at any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent scheduling conference.

2. Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested.

3. Failure to comply with this order may result in the imposition of sanctions.

IT IS SO ORDERED.

20101021

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