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Jeremy Gilmore and v. Union Pacific Rail Road Company

August 2, 2012



The parties have filed motions for reconsideration of certain of the court's prior orders. For the reasons set forth below, the motions are denied.

I. Background

Plaintiffs Jeremy and Dana Gilmore allege that after Jeremy was injured on the job, defendant Union Pacific Rail Road (UP) fired Jeremy purportedly because he was exaggerating his injury but really because he reported defective equipment and intended to pursue an action under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51, et seq.*fn1

Plaintiffs allege Jeremy's termination was in accordance with UP's policy of retaliating against employees who report on-the-job injuries and who 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 and disloyalty for failing to provide information to UP about the extent of Jeremy's injuries; ultimately, she too was wrongfully discharged. Plaintiffs' complaint includes causes of action for negligence (Jeremy), wrongful discharge in violation of public policy (Jeremy), wrongful discharge for the assertion of the right to marital privacy (Dana), retaliation (Dana), intentional infliction of emotional distress (Jeremy and Dana) and invasion of privacy (Jeremy and Dana). ECF No. 20.

The parties filed cross-motions for summary judgment. As part of that motion practice, Dana conceded that her claim of retaliation was unfounded. ECF No. 210 at 33. The court denied both motions in significant part and, during the course of resolving the issues, it reached the following decisions, among others: to the extent Jeremy's FELA negligence claim is based on the design of the locomotive door that allegedly struck his head and shoulder, it is not precluded by the Locomotive Inspection Act (LIA) and its corresponding regulations; and Jeremy had presented sufficient evidence of pretext to survive summary judgment on his termination claim. The court declined to consider whether the appropriate standard for evaluating both Jeremy's and Dana's employment claims was that established by Cotran v. Rollins Hudig Hall Intl., Inc., 17 Cal.4th 93 (1998) or Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980). See generally ECF No. 240.

Thereafter the parties filed a number of motions in limine and additional briefing on the appropriate standard for evaluating the employment claims. In addition, UP contended that plaintiffs' attack on the adequacy of the investigation and hearing as part of their evidence of pretext would require an interpretation of the Collective Bargaining Agreement (CBA), which in turn would mean the claims are preempted under the Railway Labor Act (RLA). UP therefore sought to exclude any evidence and argument that the investigations and hearings were unfair. ECF No. 309. In response, the court determined that Tameny provided the appropriate measure of the discharge claims and that plaintiffs' pretext claims could not be based on evidence or argument that the investigations and hearings were unfair. See generally ECF No. 448.

The parties have now filed motions to reconsider. Plaintiffs challenge the court's order regarding Tameny's application to the employment claims, while UP asks the court to revisit its ruling on summary judgment in two respects, arguing first that the RLA preemption ruling undercuts the court's conclusion concerning plaintiffs' evidence of pretext, and second that a recently decided Supreme Court case should change the ruling on LIA preemption of the design defect component of Jeremy's FELA claim.

II. Tameny or Cotran Applicable to Employment Claims

In Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980), the California Supreme Court explored the nature of the remedy when an employer has fired an at will employee in violation of some public policy. The court concluded that "when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." Id. at 170. The court recognized that this doctrine was a limitation on an employer's authority to discharge an at will employee for no reason. Id. at 172. Although the cause of action of a discharge in violation of public policy thus arose in the context of at will employment, the California courts recognize that an employee may bring a tort action for discharge in violation of public policy even when there is an employment contract:

[T]he cause of action was not dependent on an express or implied promise in the employment contract, but rather reflects a duty imposed by law upon all employers in order to implement the fundamental public policies embodied in the state's penal statutes. . . . [T]he existence of a contractual relationship would not bar an injured party from seeking relief through tort remedies when the employer's discharge of an employee contravenes the dictates of public policy.

Foley v. Interactive Data Corp., 47 Cal.3d 654, 666-67 (1988) (internal citation, quotation omitted).

By finding the Tameny standard to be applicable in this case, this court did not find that Jeremy and Dana were at will employees, but rather found they were asserting a claim based in public policy, available to those with employment contracts as well as those without. Similarly, by quoting a portion of Cotran regarding the investigation plaintiffs claimed was necessary before they could be discharged, the court did not mean to imply that UP need not honestly believe it had legitimate business reasons for terminating Jeremy and Dana. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002); Guz v. Bechtel Nat., Inc., 24 Cal. 4th 317, 358 n.22 (2000); see Pomeroy v. Wal-Mart Stores, Inc., 834 F. Supp. 2d 964, 977 (E.D. Cal. 2011) ("'good cause' in the context of implied employment contracts is defined as 'fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual'"). Finally, to the extent plaintiffs argue that they are entitled to rely on the Cotran framework for analyzing their discharge claims, they are mistaken. As discussed more fully below, the CBA requires a showing of good cause to support a discharge; even assuming that plaintiffs have made a showing of an implied agreement in addition to the CBA, a party may not bring a cause of action on an implied-in-fact contract where an express contract between the parties covers the same subject matter. Phillips Medical Capital, LLC v. Medical Insights Diagnostics Centers, Inc., 471 F. Supp. 2d 1035, 1047 (N.D. Cal. 2007) (quoting Lance Camper Manufacturing Corp. v. Republic Indemnity Co., 44 Cal. App. 4th 194, 203 (1996)).

Finally, as noted in previous orders, some courts have found the Cotran-mode of analysis applicable in Tameny wrongful discharge cases. None of that authority is binding on this court. Nothing plaintiffs have presented in this motion persuades the court that its earlier resolution of this issue is in error.

III. RLA Preemption

Plaintiffs argue that amendments to 49 U.S.C. § 20109 render irrelevant any claim that their termination actions are preempted. Before the amendments, they contend, an employee's sole remedy for a retaliatory discharge was under the FRSA and the RLA, but the amended statute now provides that the section does not preempt or diminish safeguards against retaliation provided by federal or state law or diminish the rights and remedies of any employee under state or federal law or any collective bargaining agreement. Rather, it allows them to pursue their claims without the preemptive effect of the RLA. 49 U.S.C. § 20109, subds. (g) & (h). However, the amendments to § 20109 were designed to expand the remedies available to a railroad whistleblower by overturning the body of law holding that a whistleblower's remedy was limited to a FRSA retaliation claim and permitting a state law suit for wrongful ...

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