This matter is before the court on cross motions for summary judgment brought by Robert Powell ("Powell" or "plaintiff"), Tyler Papworth ("Papworth") and Union Pacific Railroad Company ("UP") and Robert Kline ("Kline") (collectively, "defendants"). The court heard argument on September 14, 2011. Larry Lockshin appeared for Powell; Robert Chalfant appeared for Papworth; and Jacob Flesher and Julia Gahagan appeared for UP. For the reasons set forth below, the court GRANTS in part and DENIES in part plaintiff's motion, DENIES UP's motion*fn1 and GRANTS Papworth's motion.
This matter was initiated in the Superior Court of California, County of San Joaquin, on September 8, 2008. (ECF 1-1.) On July 9, 2009, UP removed the case to this court under 28 U.S.C. § 1441(b). (ECF 1.) On October 21, 2009, plaintiff filed an amended complaint. (ECF 18.) In his amended complaint, plaintiff alleges the following causes of action: (1) that UP was negligent in violation of the Federal Employee Liability Act ("FELA"), 45 U.S.C. 51, et. seq.; (2) that UP failed to provide plaintiff with a safe working environment in violation of the Railway Safety Act, 49 U.S.C. § 21101, et. seq.; (3) retaliation and wrongful termination in violation of public policy against UP; and (4) eavesdropping in violation of California's Invasion of Privacy Act as set forth in California Penal Code § 630, et. seq., against UP, Papworth and Kline. (Id.) UP answered the amended complaint on November 10, 2009, and Papworth and Kline answered on January 19, 2010. (ECF 19, 27.) On June 10, 2011, Papworth filed its motion for summary judgment. (ECF 66.) On June 15, 2011, plaintiff, UP and Kline filed their motions for summary judgment. (ECF 67, 78, 120.)
In 2007, plaintiff Robert Powell was employed as a trainman by UP. (ECF 117 ¶ 12.) On June 28, 2007, plaintiff was responsible for aligning switch 15 in the Stockton rail yard, which required plaintiff to "throw the switch." (Id. ¶ 7, 8.) According to plaintiff, while throwing the switch, he felt a pain in his back. (Id. ¶ 9.) Plaintiff reported his injury the same day by filling out a report of personal injury or illness. (ECF 92 at 7-8.) According to plaintiff, afterwards he was unable to perform his duties at work. (ECF 103 ¶ 2.) Greg Goodwill, a UP claims agent, spoke with plaintiff about his job capabilities after plaintiff's alleged injury. (ECF 117 ¶ 3.) Plaintiff did not return to work as a trainman after the injury. (ECF 78-2 at 2.)
Ray Perry has been the superintendent for UP's Roseville Yard since November 2004. His territory includes the Stockton yard. (ECF 102 ¶ 71.) Perry requested the videotaping of plaintiff. (ECF 93-2 at 28.) Approximately a year later, on June 6, 2008, UP filmed plaintiff performing activities that UP characterizes as pulling, pushing, and bending. (ECF 103 ¶ 3.) According to UP, its video shows plaintiff performing activities that are inconsistent with the limited activities he told UP he could engage in. (Id.) Plaintiff contests that his actions shown in the video are consistent with what he told UP he was capable of. (Id.) Based on the video, UP initiated a disciplinary investigation against plaintiff in accordance with the terms of the collective bargaining agreement ("CBA"), alleging he had falsified information on the official form reporting his injury on July 28, 2007, a Level 5 offense, making him eligible for termination. (Id. ¶ 4.) Plaintiff declined to answer questions or otherwise participate in the investigative hearing, instead relying on an exhibit containing earlier statements to Perry. (ECF 92-3 at 48.) After the investigatory hearing, plaintiff was found guilty of a Level 5 violation under the Union Pacific Discipline Policy and terminated on August 25, 2008. (Id. ¶ 5.)*fn2 Perry is the UP employee that set up the investigation of plaintiff and issued his discipline. Perry also was the one that made the decision to fire plaintiff. (ECF 102 ¶ 128.)
Plaintiff appealed his dismissal to the Railway Labor Board, which denied the appeal in its entirety. The Railway Labor Board determined that "claimant was charged with being dishonest in connection with being able to perform the functions of his position. The record clearly proved the above charge and that the claimant was dishonest in his actions in violation of Rule 1.6 dismissal is the appropriate penalty for dishonesty." [sic] (Id. ¶ 6.) The CBA provides the procedures to follow in carrying out discipline, including that "employees will not be disciplined without just and sufficient cause as determined by a fair and impartial investigation . . ." (Id. ¶ 7.)
From 2001 to November 2010, Papworth was plaintiff's supervisor at UP. (ECF 87-2 ¶ 11.) The basis for plaintiff's eavesdropping claim is a call that occurred on June 8, 2008, around 3:00 p.m., when Papworth called plaintiff. (ECF 117 ¶¶ 2, 13.) Both Papworth and Brian Kline ("Kline") were officers with UP at the time of the June 8, 2008 call. (ECF 117 ¶ 1.) Papworth initiated that call to discuss plaintiff's physical capabilities and the possibility that plaintiff could be a yardmaster. (ECF 87-2 ¶ 13.) Kline provided Papworth with questions to ask of plaintiff. (ECF 87-2 ¶ 14.) Papworth testified to the contents of his call with plaintiff at the investigative hearing. Kline did not testify. In Papworth's testimony at the investigative hearing, he makes clear he thought Kline was on the line when he spoke with plaintiff. (ECF 92-3 at 4-5.) In his deposition, Perry stated that what he saw on the video was inconsistent with plaintiff's representation to Papworth on the call, that his capabilities were limited. (ECF 93-3 at 5-6.) Perry also indicates he spoke with Kline about the June 8 call, although it is not clear from the testimony whether this discussion occurred before the call was placed or afterward. (ECF 102 ¶ 135.)
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).*fn3
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 248 (emphasis 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 588; 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 Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
A. Eavesdropping (Plaintiff's Fourth Cause of Action)
Both plaintiff and Papworth move for summary judgment on plaintiff's claim for eavesdropping in violation of California Penal Code § 631(a). (ECF Nos. 66-1, 78.) Defendants UP and Papworth also move for summary judgment on the proper measure of damages for this claim. (ECF Nos. 66, 67-1.)
California Penal Code 631(a) criminalizes eavesdropping for the following actions:
[a]ny person who. . . intentionally taps, or makes any unauthorized connection . . . with any telegraph or telephone wire, line, cable, or instrument. . . or who willfully and without the consent of all parties to the communication. . . or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section. *fn4 Section 631 broadly proscribes third party access to ongoing communications. "Section 631 was aimed at one aspect of the privacy problem-eavesdropping, or the secret monitoring of conversations by third parties." Ribas v. Clark, 38 Cal.3d 355, 359 (1985). In Ribas, during an acrimonious divorce battle, the wife requested her attorney listen in on a call between her and her husband over an extension line. Id. at 358. The attorney subsequently testified to the contents of that call in an arbitration proceeding. Id. The California Supreme Court observed that listening in on another's telephone call "denies the speaker an important aspect of privacy of communication-the right to control the nature and extent of the firsthand dissemination of his statements." Id. at 361. The third party focus of section 631 is confirmed by Rogers v. Ulrich, 52 Cal. App. 3d 894 (1975), where the court held that only a third party could violate the section 631 proscription on eavesdropping. It reasoned, "[i]t is never a secret to one party to a conversation that the other party is listening to the conversation; only a third party can listen secretly to a private conversation." Id. at 900. Published cases are in accord that section 631 applies only to third parties and not participants. See, e.g., Warden v. Kahn, 99 Cal. App. 3d 805, 811 (1979) (Section 631, "which is quite ambiguous, has been held to apply only to eavesdropping by a third party and not to recording by a participant to a conversation."); Membrila v. Receivables Performance Mgmt, LLC, No. 09-CV-2790-IEG (RBB), 2010 WL 1407274, at *2 (S.D. Cal. April 6, 2010) ("Plaintiff's claim for violation of Section 631 fails, because this section applies only to eavesdropping by a third party and not to recording by a participant to a conversation."); cf. Thomasson v. GC Services Ltd. Partnership, 321 F. App'x 557, 559 (9th Cir. 2008) ("California courts interpret 'eavesdrop,' as used in § 632, to refer to a third party secretly listening to a conversation between two other parties.").*fn5
Moreover, in Warden, after summarizing instances of section 631 being labeled ambiguous, the court reasoned "[s]ince we are dealing with a penal statute, language so ambiguous should be interpreted in favor of the alleged violator." Warden, 99 Cal. App. 3d at 817 n.3. More recently, the California Supreme Court has applied civil statutory interpretation principles to provisions of the Invasion of Privacy Act, reserving interpretation of the same for a possible criminal setting. See Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 116 n.6 (2006) (In determining whether a civil action may proceed, "there is no need to determine whether penal sanctions properly could or should be imposed under these circumstances.").
Given the settled nature of the third-party focus of section 631, the court declines to adopt plaintiff's alternate reading. As such, Papworth's motion for summary judgment is GRANTED.
The parties dispute whether eavesdropping actually occurred during the June 8 call. When asked in depositions whether eavesdropping occurred Papworth and Kline each invoked their Fifth Amendment right under the United States Constitution, which prevents witnesses from being "compelled in any criminal case to be a witness against himself." U.S. Const. amend. V, cl. 2. (See ECF 102 ¶¶ 73-79.)*fn6 However, in testimony during the investigative hearing against plaintiff, Papworth indicated he thought Kline was on the line but that Kline did not want Papworth to reveal Kline's presence on the call. (ECF 92-3 at 4-5.) Moreover, plaintiff notes that in the context of a ...