On March 31, 2012, the court issued its order on the parties' cross motions for summary judgment under Federal Rule of Civil Procedure ("Rule") 56, granting summary judgment in favor of defendant Tyler Papworth and denying summary judgment to Union Pacific on several employment claims. The court reserved judgment regarding plaintiff Robert Powell's eavesdropping claim and ordered further briefing on the application of the litigation privilege under California Civil Code section 47(b). For the reasons set forth below, the court grants plaintiffs' motion for summary adjudication on liability and grants defendant Union Pacific's motion for summary adjudication on the measure of damages.
I. FACTUAL BACKGROUND*fn1
Ray Perry is the superintendent for Union Pacific's ("UP") Stockton yard where Powell worked. (ECF 102 ¶ 71.) Perry is the UP employee who initiated the investigation into Powell for dishonesty and who ultimately decided to fire Powell. (ECF 102 ¶ 128.)
From 2001 to November 2010, Tyler Papworth was plaintiff's supervisor at UP. (ECF 87-2 ¶ 11.) On June 8, 2008, around 3:00 p.m., Papworth called plaintiff to discuss his physical capabilities (the "call"). (ECF 117 ¶¶ 2, 13.) Both Papworth and Brian Kline were officers with UP at the time of the call. (Id. ¶ 1.) Kline provided Papworth with questions to ask plaintiff. (ECF 87-2 ¶ 14.) Based on the differences between what plaintiff said he was capable of on the call and a surveillance video of plaintiff with his family, Perry, in conversations with Kline and others, determined to charge plaintiff with dishonesty and begin termination proceedings. (See ECF 93-3 at 6--7.)
A disciplinary investigation performed in conformity with the Collective Bargaining Agreement ("CBA"), later commenced on July 28, 2008. (ECF 106-1 at 11.) Papworth testified to the contents of his call with plaintiff at the disciplinary hearing. Kline did not testify. In Papworth's testimony, he makes clear he thought Kline was on the line when he spoke with plaintiff. (ECF 92-3 at 4--5.) On August 25, 2008, plaintiff was terminated. (Id. at 11-12.) Plaintiff then appealed his dismissal to the Railway Labor Board, which affirmed his termination. (Id. at 13.)
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).
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 587; 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)).
Plaintiff and Papworth each moved for summary adjudication of liability on plaintiff's claim for eavesdropping under California Penal Code § 631(a). (ECF 66-1, 78.) In this court's previous order, the court granted Tyler Papworth's motion for summary judgment because the court determined that California Penal Code section 631 did not apply to a participant to an ongoing communication, but only to unannounced third parties. (ECF 125.) The court now considers whether UP and Kline may be liable if Kline, as a third party, listened in on the call. The court also addresses the motion by UP, joined by Kline, for summary judgment on the proper measure of damages applicable to plaintiff's eavesdropping claim. (ECF 66, 67-1.)
California Penal Code § 631(a) criminalizes eavesdropping and broadly proscribes third party access to ongoing communications. See CAL. PEN. CODE § 631(a); Ribas v. Clark, 38 Cal. 3d 355, 359 (1985). Defendants UP and Kline contend there is no evidence that Kline eavesdropped on the call between Papworth and Powell. When asked in depositions whether Kline listened in on the call, 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.) Plaintiff argues that in the context of a civil suit, Baxter v. Palmigiano, 425 U.S. 308 (1975) allows an "adverse inference" to be drawn from a party's refusal to answer questions by invoking the Fifth Amendment. (ECF 106.)
In civil cases, an adverse inference from invocation of the Fifth Amendment may be drawn only where the movant has also provided separate probative evidence to support the inference. As the Ninth Circuit explained in Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000), [t]he Baxter holding is not a blanket rule that allows adverse inferences to be drawn from invocations of the privilege against self-incrimination under all circumstances in the civil context. Rather, lower courts interpreting Baxter have been uniform in suggesting that the key to the ...