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
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.
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 ...