United States District Court, S.D. California
ORDER: (1) GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF 33) (2) DENYING PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION (ECF 34)
CYNTHIA BASHANT, District Judge.
This matter is before the court on cross motions for summary judgment brought by Plaintiff Shawn Pollock and Defendant Union Pacific Railroad Company ("UP"). For the reasons set forth below, the court GRANTS Defendant's motion and DENIES Plaintiff's motion.
I. PROCEDURAL BACKGROUND
Plaintiff filed a Complaint against Defendant in this court on August 29, 2012 alleging violations of 45 U.S.C. 51 et seq., claiming damages related to a workplace injury suffered because of Defendant's carelessness and negligence. ECF 1. Plaintiff then, on December 10, 2012 amended his complaint to allege two causes of action: (1) that UP was negligent in violation of the Federal Employee Liability Act ("FELA"), 45 U.S.C. 51 et seq., and (2) that UP retaliated against him by initiating disciplinary charges because he reported his injuries. ECF 2. Defendant answered the Amended Complaint on January 16, 2013. ECF 4. On March 10, 2013, both parties filed cross motions for summary judgment. ECF 33, 34.
Defendant moves for partial summary judgment dismissing the retaliation claim, contending that there are no material issues of fact relating to the claim and that Plaintiff cannot establish that the disciplinary action taken against him was as a result of conduct protected under the Federal Rail Safety Act ("FRSA"). ECF 33, Def.'s Mot. Summ. J., 1:2-8. Defendant also asserts that Plaintiff's retaliation claim is preempted by the Collective Bargaining Agreement ("CBA"), under the Railway Labor Act. Id. at 1:25-28.
Plaintiff moves for summary adjudication of the FELA action in his favor and to preclude Defendant from asserting a contributory negligence defense as a matter of law. ECF 34, Pl.'s Mot. Summ. Adj., 11:6-9
In 2011, Plaintiff Shawn Pollock was employed by Defendant UP. On November 4, 2011, Plaintiff was a member of a servicing gang; he and Alonzo Chavez operated crawler backhoes, and Robert Brooks acted as foreman. ECF 51, Pl.'s Opp'n Def.'s Mot. Summ. J., 1:5-12.
While operating the backhoe, Plaintiff was injured. Id. at 1:5-8. He attempted to drive the backhoe over a bridge, which collapsed underneath him. Id. at 1:20-25. After the incident, he wrote a statement relating that he was "instructed by [his] foreman Bob Brooks to ravel my crawler hoe (DBH-0605) down to load them up on the equipment flats. I was told to go across a bridge (R.R. Idaho Northern) to get to the equipment flats. I got about 1/4 of the way across the bridge when the side of the bridge gave out and down to the bottom I went." Id.
On November 4, Defendant sent Daryl Neuner, a UP Manager, from Missouri to the scene to investigate the accident. Id. at 2:24-3:4. On November 5, 2011, the site's supervisor, Martie Campos, conducted an investigation of the incident. He summarized his investigation in an email:
I then asked [Pollock and Brooks] what happened and why they even decided to cross the bridge with the crawlers when they had other options such as moving them with the boom truck and trailer. I also asked them why they didn't have a better job briefing with all three of them and do a good risk assessment especially when crossing bridges with the crawlers. I explained to them that if they would have met at the bridge and looked at it and done the risk assessment they might have decided not to go over it. Shawn stated that he did questions Bob about loading them on the trailer to move them but Bob said to go ahead and just travel them down. [...] Bob said that he was helping out the tie contractor when he sent them down on their own and that he felt a little rushed to get them loaded and instructed the operators to travel them down to the flats because he thought it would be faster and that he didn't think it would be a problem traveling over the bridge since they have done it many times in the past on other projects. Alonzo stated that he was following Shawn a ways behind and that he seen Shawn fall off the bridge and then called Bob on the radio and told him what happened. Shawn also stated that he has never crawled across a bridge before so I feel that his lack of experience in this area was a major contributing factor to the accident. Shawn is a qualified operator since 6-6-09 and has been on the gang as an operator on the crawler and done a great job and is an excellent employee and always puts safety first. [...] I think the root cause of the accident was caused by not doing a better job briefing and risk assessment but most of all Shawn's lack of experience going over bridge.
Id. at 2:8-21 (Errors in original).
Plaintiff initially did not believe he had been injured in the incident. Id. at 3:26-27. However, Plaintiff still had pain on November 8th, and so he went to his doctor. After returning from the doctor, he mailed an injury report to Defendant. Id. at 4:15-19.
The same day Plaintiff mailed the injury report to Defendant, but before Defendant received the report, Neuner "wrote of possible imposing discipline on Pollack[.]" Id. at 4:23-25 (error in original). Then on November 11, 2011, Neuner sent an email stating, "Need discipline on CBH accident, Pollock operator, Brooks foreman, job briefing for sure, may need to talk to Bill [Huber] about it. Level 3 for sure with days off." Id. at 6:1-3. Then Huber, UP's ...