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Jeremy Gilmore and Dana Gilmore v. Union Pacific Railroad Company

July 26, 2011


This case was on calendar on June 8, 2011 for argument on the parties' cross-motions for summary judgment. Larry Lockshin appeared for plaintiffs; Stephanie Quinn and Brian Plummer appeared for defendants. Plaintiffs move for summary judgment on their fourth and seventh causes of action and on several of defendant's affirmative defenses. Defendant moves for summary judgment on all of plaintiffs' causes of action and on their claim for punitive damages.

I. Background

Plaintiffs Jeremy and Dana Gilmore allege that after Jeremy was injured on the job, defendant Union Pacific Railroad (UP) and certain individual defendants fired Jeremy for exaggerating his injuries after they became aware that he intended to file an action under the Federal Employers' Liability Act (FELA), 45 U.S.C.§§ 51, et seq. Plaintiffs allege Jeremy's termination was in accordance with UP's policy of retaliating against employees who report onthe-job injuries and intend to pursue claims for the injuries. They also allege that Dana, Jeremy's wife and a supervisor at UP, was falsely accused of dishonesty for failing to provide information to UP about the extent of Jeremy's injuries and ultimately wrongfully discharged. With these facts as the backdrop to their second amended complaint, they alleged nine causes of action for negligence (Jeremy), wrongful discharge in violation of public policy (Jeremy), intentional infliction of emotional distress (Jeremy and Dana), wrongful discharge for the assertion of the right to marital privacy (Dana), wrongful discharge because of marital status discrimination (Dana), retaliation (Dana), intentional infliction of emotional distress (Jeremy and Dana) and invasion of privacy (Jeremy and Dana).*fn1 ECF No. 20.

In an order filed May 21, 2010, the court dismissed with prejudice the claims for intentional infliction of emotional distress and Dana's claim for marital status discrimination and dismissed the remaining individual defendants from the lawsuit. ECF No. 44. Accordingly, the only causes of action remaining in this suit are the first cause of action for negligence, the second cause of action for Jeremy's wrongful discharge in violation of public policy, the fourth cause of action for Dana's wrongful discharge for her assertion of her right to marital privacy, Dana's sixth cause of action for retaliation, and Dana and Jeremy's seventh cause of action for invasion of privacy. Dana has conceded, however, that her claim of retaliation is unfounded. ECF No. 210 at 33.

II. Standards For Summary Judgment

A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).*fn2

The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . .; or show [] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphases in original).

In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)).

III. Evidentiary Objections

Each side objects to portions of the others' evidence. Defendant objects to many of plaintiffs' deposition excerpts as well as several other of plaintiffs' exhibits, but in its response to plaintiffs' separate statement of undisputed facts in opposition to defendant's motion for summary judgment, defendant agrees that some of the facts, though not relevant, are undisputed. Compare ECF No. 225-1 with ECF No. 226.

Both parties have submitted excerpts from the many depositions taken in this case, though only a few excerpts are properly authenticated. See ECF No. 209-4 at 45-50; excerpts of deposition of Andrew Ribbing); Orr v. Bank of America, 285 F.3d 764, 774 (9th Cir. 2002) ("a deposition or excerpt therefrom is authenticated in a motion for summary judgment when it identifies the name of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent"); Chao v. Westside Drywall, Inc., 709 F.Supp.2d 1037, 1051 (D. Or. 2010) (blank, unsigned reporter's certificate not sufficient authentication); Kesey v. Francis, 2009 WL 909530, at *3 (D. Or. Apr. 3, 2009) (collecting cases re: authentication of transcripts). Consonant with the court's obligation to consider only authenticated documents in resolving motions for summary judgment, this court will not rely on the unauthenticated excerpts. Orr, 285 F.3d at 733.

In addition, plaintiffs have submitted a number of e-mails without any attempt to identify their provenance. Defendant objects to many of these exhibits, but in response to some of plaintiffs' statements of facts, acknowledge that some of the e-mails were sent. For example, defendant does not dispute the fact that Diana Anderson, Director of Maintenance Processes at Roseville, sent an e-mail to Andrea Gansen, Vice-President of Labor Relations, about Dennis Magures' desire "to cite employee Jeremy Gilmore as being accident prone" and noting she had asked Dennis to send the information for Gansen's review. Nor does defendant dispute the fact that on August 19, Parker e-mailed Lynn Beebe disagreeing that Jeremy would be a proper candidate for the "Noggin Award," given to one whose hard hat deflected serious injury. ECF No. 226 ¶ 231 & 232; see ECF No. 213 at 23, 25-26. Defendant's acknowledgment that these e-mails were sent authenticates them sufficiently for purposes of this motion. While defendant objects that the contents are hearsay, a statement "by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" is not hearsay. FED. R. EVID. 801(d)(2)(D); Sea Land Service, Inc. v. Lozen Intl., LLC, 285 F.3d 808, 821 (9th Cir. 2002). The contents of these e-mails show that they concerned "a matter within the scope of the . . . employment," as they dealt with the response to Jeremy's own-the-job injury. They are admissible.

IV. Undisputed Facts Relating To All Causes Of Action

In connection with their cross-motions for summary judgment, the parties submitted lengthy statements of undisputed and disputed facts and many pages of exhibits. Many of plaintiffs' undisputed and disputed facts are repetitive and argumentative; several of defendant's declarations were filed twice. See, e.g., ECF No. 210-3 ¶¶ 210, 211; compare ECF Nos. 200-3 and 209-4. At the court's request, the parties have submitted a joint statement of undisputed facts and separate statements of undisputed and disputed facts. In this section of background facts, the court draws from the joint statement and from other materials in the record, including the parties' other statements of facts, when there are no disputes. Facts specific to the causes of action will be included in the discussion of those causes of action below.

Jeremy Gilmore began working for UP in November 1999 as a shop laborer. ECF No. 235 ¶ 3. His wife, Dana, started with UP the following year and was promoted to a supervisory position in March 2007. ECF No. 235 ¶ 5. Dana was not Jeremy's supervisor. ECF No. 235 ¶ 63. Both signed UP's "Terms and Conditions Of Employment," in which they acknowledged their obligation to adhere to UP's rules, orders and instructions and to serve the company honestly and loyally. ECF No. 235 ¶¶ 4, 6. In addition, as a supervisor, Dana was responsible for reporting fraud upon the company and was aware that UP's rules applied to all employees regardless of marital status. ECF No. 235 ¶ 23.

V. Analysis

A. Personal Injury/FELA (First Cause of Action)

Jeremy contends that on August 14, 2008, he was standing on a ladder fastening the door of an air compartment on a locomotive engine after completing mechanical tests when the door came open and fell on his head and body, causing injury to his head, neck and shoulders. SAC ¶¶ 4-7. He alleges that the air compartment door latches and hinges "were defective and unsafe for their intended use, because the subject door latches and hinges had not been properly inspected, maintained, and repaired" and were "defective and unsafe for their intended use;" that UP had failed to provide him a safe manner of closing the door that did not expose his head and body to the force of the door should it fall; and that UP thereby negligently and carelessly breached its duty to provide Jeremy with a reasonably safe work environment. SAC ¶ 6. These acts and omissions, he contends, violate the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51, et seq.

According to UP, Jeremy's FELA claim is based in part on the design of the locomotive air compartment door and on his contention that UP was negligent for not installing lighter doors made of fiberglass, and failing to use a different latch and hinge configuration for the air compartment doors and to install a third latch. ECF No. 200 at 12. Jeremy does not dispute this characterization of his theory, which he has pursued through the numerous discovery disputes in this case. See, e.g., ECF No. 190 (in motion to compel inspection, asserting that "plaintiff contends that the air compartment door latch system on Locomotive Engine 9643 could have and should have been provided on the locomotive on which plaintiff was working").

In this motion, UP argues that the design defect portion of Jeremy's FELA claim is precluded by the Locomotive Inspection Act (LIA) and its regulations. It offers a declaration from Michael Iden, UP's General Director of Car and Locomotive, who couches legal conclusions about the reach and scope of the LIA as factual assertions, which the court will not credit. See ECF No. 200-6 ¶¶ 1-2; Evangelista v. Inlandboatmen's Union of Pacific, 777 F.2d 1390, 1398 n.3 (9th Cir. 1985) (lay witness testimony on correct interpretation of collective bargaining agreement not admissible). Jeremy counters with information about the design and maintenance of the air compartment door, which the court does not find relevant to the narrow issue presented by UP's motion. See, e.g., ECF No. 237 ¶¶ 1-6, 10.

FELA allows railroad workers to recover for injuries suffered "by reason of any defect, or insufficiency, due to its negligence, in its . . . engines, appliances, machinery . . . or other equipment." 45 U.S.C. § 51. Although the elements of a FELA claim are the same as those for a claim of common law negligence, the statute was designed "to enable injured railroad workers to overcome a number of traditional defenses to tort liability that had previously operated to bar their actions. . . ." Lewy v. Southern Pacific Transp. Co., 799 F.2d 1281, 1287 (9th Cir. 1986) (purpose of FELA); Glow v. Union Pacific Railroad Co., 652 F.Supp.2d 1135, 1141 (E.D. Cal. 2009) (elements of common law negligence). The Locomotive Inspection Act (LIA), on the other hand, provides that a railroad may use a locomotive "only when the locomotive . . . and its parts and appurtenances -- (1) are in proper condition and safe to operate without unnecessary danger of personal injury . . . ." 49 U.S.C. § 20701. The LIA, and its predecessor the Boiler Inspection Act, "supplement[] the Federal Employers' Liability Act by imposing on interstate railroads 'an absolute and continuing duty' to provide safe equipment." Urie v. Thompson, 337 U.S. 163, 188 (1949). These statutes are "substantively, if not in form amendments to the Federal Employers' Liability Act," because a worker who is able to show a violation of the LIA has shown FELA negligence as a matter of law. Id.; Grogg v. CSX Transportation, 659 F.Supp.2d 998, 1006 (N.D. Ind. 2009). Nevertheless, not all violations of FELA constitute LIA violations because "FELA allows recovery in a broad range of situations, while liability under the LIA occurs under more narrow circumstances." Monheim v. Union Railroad Co., F.Supp.2d , 2011 WL 1527798, at *3 (W.D. Penn. Apr. 20, 2011). Jeremy does not raise a LIA claim, as explained below.

Federal courts have held that the BIA and LIA and the regulations adopted to implement them, as well as the Federal Railroad Safety Act (FRSA), preempt state laws that cover the same subject matter. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 675 (1993); Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 612-13 (1926) (finding state laws requiring locomotives to have doors on the firebox and cab curtains preempted "because the Boiler Act . . . was intended to occupy the field"); Law v. General Motors Corp., 114 F.3d 908, 909 (9th Cir. 1997) (BIA preempts state common law remedies against railroad manufacturers arising from alleged design defects).

Defendant argues that because the LIA regulates "the design, construction, and the material of every part of the locomotive . . . and of all appurtenances," Napier, 272 U.S. at 611, Jeremy's design defect claim is precluded by the LIA, which does not require that the air brake compartment doors be made of fiberglass or have different or additional latches. They cite several cases in which courts have found preclusion. In Waymire v. Norfolk and Western Railway Co., 218 F.3d 773, 776 (7th Cir. 2000), the Seventh Circuit found a FELA claim based on unsafe speed to be precluded by FRSA when a train was traveling within FRSA prescribed limits. See also Dickerson v. Staten Trucking, Inc., 428 F.Supp.2d 909, 914 (E.D. Ark. 2006) (compliance with FRSA regulations regarding cab seats precluded FELA claim); Monheim, 2011 WL 1527798, at *4 (compliance with FRSA precludes various FELA design defect claims). One court in this district has ruled that LIA regulations on cab safety precluded a FELA claim based on the failure to install seatbelts or padding. Tucker v. BNSF Railway Co., 2008 WL 3286748, at *2 (E.D. Cal. Aug. 6, 2008); but see Glow, 652 F.Supp.2d at 1142 (recognizing lack of 9th Circuit authority on the question).

Other courts have recognized that while the law may be clear on federal preemption of state regulation of railroads, "the FRSA only explicitly preempts state laws, regulations and orders . . . [but] is silent as to whether 'other federal safety standards' are precluded." McCain v. CSX Transportation, Inc., 708 F.Supp.2d 494, 502 (E.D. Penn. 2010). In Grogg, 659 F.Supp.2d at 1011, the Indiana district court recognized "the degree to which this preclusion applies to FELA claims remains a developing part of the law and there is clearly no bright line test for applying preclusion. Preclusion analysis must still be applied on a claim by claim basis." The court in Grogg concluded that while there may be preclusion "when the issue raised by a FELA claim is directly covered by a regulation issued pursuant to the LIA," preclusion "is not absolute simply because language in the LIA or one of its accompanying federal regulations could be argued to 'occupy the field' in a broad sense." Id. at 1012, 1013-14. And in Mosco v. Baltimore & Ohio Railroad, the Fourth Circuit said, although Mosco had no viable Boiler Inspection Act claim based on the absence of protective devices from the windows of the locomotive's cab, it is possible that he might have stated a meritorious FELA claim based on the same facts. As the Supreme Court has indicated, devices or equipment that do not fall within the coverage of the Boiler Inspection Act are not therefore excluded from the usual rules of liability. 817 F.2d 1088, 1092 (4th Cir. 1987).

In light of the policies behind the LIA and FELA, this court does not find that LIA precludes all FELA claims stemming from problems with "parts and appurtenances." As the Supreme Court has said, the Safety Appliance Acts and the BIA "hav[e] the purpose and effect of facilitating employee recovery, not of restricting such recovery or making it possible." Urie, 337 U.S. at 189. Determining that the LIA is broadly preclusive runs counter to its purpose as described by the Supreme Court.

Based on the record on the pending motion, however, the court need not determine whether a specific regulation precludes a FELA claim. Defendant cites only one regulation concerning doors on locomotive engines: 49 C.F.R. § 229.85, which provides for warnings on doors guarding high voltage equipment. It has not cited the court to any regulations concerning the requirements for locomotive doors in general or doors for air brake compartments in particular.*fn3 Jeremy's FELA claim based on principles of design defect is not precluded.

B. The Discharges (Second and Fourth Causes Of Action)

In the SAC, Jeremy alleges that after his injury, his supervisors cited him for violation of various UP rules, based on a claim that he was falsifying or exaggerating the extent of his injuries. SAC ¶ 14. UP did not present any evidence from a doctor or other medical provider at the disciplinary hearing but nevertheless discharged Jeremy after the hearing officer found him guilty of the charges. Id. ¶ 15. Defendant was aware that Jeremy intended to pursue a FELA claim and so pursued the baseless dismissal as part of a general policy of retaliation against employees "who report having been injured at work and/or who are known or believed by Union Pacific of [sic] intending to make a claim for damages arising out of an on-the-job injury. . . ." Id. ¶ 17. Jeremy also alleges that the discharge was motivated in part by the bonuses UP paid to the managers who participated in Jeremy's wrongful discharge and discipline. Id. ¶ 18. This discharge, he says, violated California Labor Code § 132a, the Federal Rail Safety Act, 49 U.S.C. § 20109(a)(4) and California public policy because UP was aware Jeremy intended to pursue a FELA claim. Id. ¶ 19.

On August 14, 2008, Jeremy reported the air compartment door of locomotive UP7163 had not latched properly and had fallen on him; he was taken for a medical examination that afternoon. ECF No. 235 ¶¶ 7-8. The doctor diagnosed neck strain, but did not impose any work restrictions. ECF No. 201-4 at 17; ECF No. 235 ¶ 8. Dana was present during that examination, but did not accompany Jeremy to other medical appointments. ECF No. 201-4 ¶ 18. Even so, she was aware that ...

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