United States District Court, E.D. California
ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION
(DOC. No. 98)
an employment discrimination case based on disability brought
by Plaintiff Trevor Weeks (“Weeks”) against his
former employer, Union Pacific Railroad (“UP”).
Weeks now moves for reconsideration of the Magistrate
Judge's February 22, 2017 order denying leave to amend
the complaint (“the Order”). See Doc.
Nos. 97, 98. For the reasons that follow, Weeks's motion
will be granted in part and denied in part.
April 21, 2014, the time to file an amended complaint per the
scheduling order expired. See Doc. No. 11.
March 2, 2015, UP filed a motion for summary judgment. After
the summary judgment motion was filed, UP issued Weeks a
Notice of Discipline in March 2015 (“March NOD”)
for excessive absences.
April 20, 2015, Weeks filed an untimely opposition to summary
judgment that identifies the March NOD as an adverse
employment action. See Doc. No. 33.
6, 2015, UP's reply was filed. See Doc. No. 34.
The reply argued inter alia that the Court cannot
consider the March NOD because it occurred after UP filed its
summary judgment motion. See id.
August 2015, the Court received notice that Plaintiff's
counsel (William J. Smith) had died. See Doc. Nos.
40, 41. Attorney Kay Parker was substituted as counsel.
See Doc. No. 42.
October 7, 2015, the Court issued a ruling on UP's
summary judgment motion. See Doc. No. 43. The Court
found genuine disputed issues with respect to: an ADA claim
for failure to provide reasonable accommodation, a FEHA claim
for failure to provide reasonable accommodation, and a FEHA
claim for failure to engage in an interactive process.
See id. The Court granted summary judgment on the
FEHA and ADA claims for disability discrimination because no
adverse employment actions had been demonstrated. See
id. The Court held that reliance on the March NOD
postdated the summary judgment motion and was not fairly
described in the complaint. See id. Although the
Court could allow amendment, there was not enough information
provided about the March NOD, and the Court disallowed
amendment at that time. See id. The Court also
granted summary judgment on Weeks's California medical
leave act claim, Labor Code § 923 claim, FEHA
retaliation claim, and punitive damages because Weeks stated
in his opposition that he did not oppose summary judgment on
those matters. See id. Finally, the Court
permitted the parties to file additional motions if they
thought that they had a good faith basis for doing so.
See id. Specifically, the Court established
mechanisms for UP to file a second summary judgment motion
and for Weeks to file a motion to amend with the Magistrate
Judge. See id.
October 21, 2015, Defendants filed a request to file a second
summary judgment motion. See Doc. No. 44. The Court
ordered the parties to meet and confer. See Doc. No.
mid-November 2015, there was a dispute regarding the
advisability of a second summary judgment. See Doc.
No. 48. Weeks stated that his evidence regarding the March
NOD and a transfer of two junior employees to a location that
would have accommodated Weeks were sufficient to defeat
summary judgment. See id. Weeks stated that a
proposed first amended complaint had been presented to UP and
that his request to file a first amended complaint which
addressed the March NOD and the transfer of two employees
should be granted either through stipulation or court order.
See id. Weeks stated that the parties agreed to
continue to meet and confer. See id.
November 18, 2015, the Court issued a clarifying order that
explained what claims were at issue. See Doc. No.
49. The Court explained that the claims at issue were those
that remained in the Complaint, and claims based on the March
NOD were not in the Complaint. See id. The Court
ordered the parties to meet and confer on a summary judgment
motion that did not include claims based on the March NOD.
See id. The Court also noted that Weeks had
circulated a proposed amended complaint to UP's counsel
and also stated that the amended complaint (if it was filed)
would not affect UP's second summary judgment motion
unless it omitted certain claims. See id. The Court
ordered the parties to meet and confer regarding both the
second summary judgment and the amended complaint and set a
briefing schedule. Id.
being granted a one week extension of time, UP filed a second
summary judgment motion on January 11, 2016. See
Doc. No. 54.
January 14, 2016, Weeks filed a first amended complaint that
included allegations related to the March NOD and the
transfers of the two junior employees. See Doc. No.
January 25, 2016, Weeks filed a motion to amend the original
complaint. See Doc. No. 56.
February 25, 2016, the Magistrate Judge denied the motion to
amend and struck the amended complaint. See Doc. No.
68. For purposes of Rule 16, the Magistrate Judge found a
lack of diligence by Weeks because nearly eleven months had
passed from March 2015 to January 2016, and Weeks had waited
two months after the first summary judgment motion had been
decided. See id. For purposes of Rule 15, the
Magistrate Judge found undue delay and that the proposed
amended complaint did not include new causes of action or
legal theories, rather the amendments merely added factual
support. See id. The Magistrate Judge
found that Weeks would not be precluded from asserting the
March NOD in support of being threatened with discipline, and
he could use the transfer of the other two employees to
support existing claims. See id. Finally, the
Magistrate Judge found prejudice because the proceedings
would be prolonged and additional discovery would be needed.
April 21, 2016, the Court denied the second motion for
summary judgment in its entirety. See Doc. No. 71.
In doing so, the Court relied in part on declarations that
had been submitted in connection with the motion to amend.
See id. The Court relied on the transfers of the
junior employees to show that a transfer was a possible
accommodation, and on the March NOD to show that UP may not
have been providing medical leave as a good faith
accommodation. See id. Under the “Further
Proceedings” section, the Court reopened discovery for
several reasons: (1) prior counsel's medical condition
affected his ability to prosecute the case; (2) significant
events occurred around March 2015, well after the close of
discovery (the March NOD and the transfers were mentioned);
and (3) the new evidence raised questions regarding
transfers. Thus, the parties were “permitted to conduct
discovery regarding transfers, seniority, and any other
issues relevant to Weeks's remaining claims, including
the events of March 2015.” Id.
19, 2016, a new scheduling order was entered. See
Doc. No. 76. Non-expert discovery was to close on October 3,
2016. See id. No new deadline for filing an amended
complaint was included in the scheduling order. See
September 18, 2016, a stipulation to extend the discovery
deadline was filed. See Doc. No. 77.
September 20, 2016, the stipulation was rejected.
See Doc. No. 78.
December 29, 2016, Weeks filed a motion for an extension of
time to file dispositive and non-dispositive motions.
See Doc. No. 82.
December 30, 2016, Weeks filed a second motion to amend the
complaint. See Doc. No. 83.
January 19, 2017, Weeks filed an amended memorandum regarding
the motion to amend the complaint. See Doc. No. 87.
Weeks sought to include allegations regarding the March NOD
and the transfers of the junior employees. See Doc.
No. 87-3. Weeks also included allegations that UP allowed his
engineering license to expire on January 9, 2017. See
id. Weeks's proposed amended complaint attempts to
add disparate treatment, retaliation, and wrongful
termination claims, as well as a request for punitive
damages. See id.
February 22, 2017, the Order was issued denying Weeks's
motion to amend. See Doc. No. 97. In terms of Rule
16, the Order concluded that the original scheduling
order's “amended pleading deadline” remained
in place. See id. A lack of diligence was again
found with respect to the events of March 2015, but diligence
was found with respect to the events surrounding the
expiration of Weeks's locomotive certification around
January 2017. See id. Because there was sufficient
diligence for purposes of Rule 16, the Order analyzed whether
amendment to include additional claims was appropriate under
Rule 15. See id. In terms of Rule 15, there was
undue delay regarding the events of March 2015, but no delay
regarding the locomotive certification. See id. The
Order found that inclusion of claims related to the
locomotive certification would be futile because the Federal
Railroad Administration (“FRA”) has an
administrative scheme (pursuant to the Federal Railway Safety
Act (“FRSA”)) that must be followed with respect
to locomotive licenses, and Weeks has not filed a claim with
the FRA. See id. The Order also found that an
assertion that Weeks was discharged based on his disability
is merely evidence of his damages arising under the ADA and
is not a separate claim; Weeks has always claimed that UP
prohibited his return to work, either with or without a
certification, by failing to accommodate his condition.
See id. Finally, the Order found prejudice because
the Ninth Circuit has upheld a finding of prejudice when a
motion to amend was filed on the eve of trial and the
additional discovery would have caused a delay in the trial.
See id. Because discovery would have to be reopened,
UP would be prejudiced. See id. The Order concluded
by denying Weeks's motion through citation to Rule
15(a)(2) and Swanson v. United States Forest Serv.,
87 F.3d 339, 343 (9th Cir. 1996) (a case that inter
alia discussed amendment of complaints and the
March 9, 2017, Weeks filed this motion for reconsideration.
Following receipt of an opposition, and reply, a hearing was
held on April 10, 2017. Supplemental briefing regarding the
FRSA was ordered at the hearing and has now been received.
1, 2017, trial in this matter was vacated due to conflicting
trial schedules involving the re-trial of an older case
before District Judge Drozd and the pendency of the motion to
amend. See Doc. No. 115.
memorandum in support of reconsideration, Weeks argues that
there was no undue delay regarding the events of March 2015.
Weeks alerted the court to those events in April 2015, UP
responded to it in the reply, and Weeks did nothing further
because the motion for summary judgment was under submission.
Weeks also argues that there was no delay in raising the
certification claim, and no prejudice to UP. UP had all of
the power and authority over the license, and knowingly
failed to include Weeks in the necessary testing, that it had
been doing all the years that Weeks was an engineer.
argues that the FRA regulations do not apply to his claims.
His claims are for discrimination under the ADA and FEHA, and
he is not challenging an improper testing procedure or a
failure to certify. Weeks brought this matter to the
attention of the EEOC and received a right to sue letter. All
administrative procedures for this claim have been exhausted.
also argues that there is no prejudice to UP. UP's own
misconduct occurred on the eve of trial, which necessitates
discovery on the eve of trial.
Kay Parker submitted two declarations. In pertinent part,
Parker's first declaration states: (1) she did not think
it was appropriate to file a motion for leave to amend the
compliant while the summary judgment motion, which included
arguments from both sides regarding the March NOD, was under
submission; (2) she obtained right to sue letters from EEOC
and DFEH regarding the events of March 2015; (3) she met and
conferred with defense counsel regarding a second summary
judgment motion and an amended complaint; (4) UP was not
cooperative after discovery was re-opened; (5) she learned in
January 2017 that UP did not notify Weeks of the dates and
locations for the locomotive engineer tests, as it usually
had done, and that his license expired; (6) allowing
Weeks's license to expire, after UP stopped paying him,
providing insurance, and providing retirement credits, was
sending a message that Weeks was fired; and (7) the latest
right to sue letter from EEOC is for retaliatory constructive