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Weeks v. Union Pacific Railroad Co.

United States District Court, E.D. California

May 3, 2017

TREVOR WEEKS, Plaintiff
v.
UNION PACIFIC RAILROAD CO., Defendant

          ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION (DOC. No. 98)

         This is 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.

         BACKGROUND

         On April 21, 2014, the time to file an amended complaint per the scheduling order expired. See Doc. No. 11.

         On 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.

         On 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.

         On May 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.

         In 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.

         On 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.[1] 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.

         On 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. 46.

         In 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.

         On 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.

         After being granted a one week extension of time, UP filed a second summary judgment motion on January 11, 2016. See Doc. No. 54.

         On 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. 55.

         On January 25, 2016, Weeks filed a motion to amend the original complaint. See Doc. No. 56.

         On 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.[2] 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. See id.

         On 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.

         On May 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 id.

         On September 18, 2016, a stipulation to extend the discovery deadline was filed. See Doc. No. 77.

         On September 20, 2016, the stipulation was rejected. See Doc. No. 78.

         On December 29, 2016, Weeks filed a motion for an extension of time to file dispositive and non-dispositive motions. See Doc. No. 82.[3]

         On December 30, 2016, Weeks filed a second motion to amend the complaint. See Doc. No. 83.

         On 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.

         On 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 Foman factors).[4]

         On 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.

         On May 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.

         WEEKS'S MOTION

         Weeks's Argument

         In his 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.

         Weeks 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.

         Weeks 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.

         Additionally, 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 discharge. ...


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