Thomas v. Union Pac. R.R. Co.

203 F.Supp.3d 1111

Andrea THOMAS, Plaintiff,

v.UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.

No. 3:15-cv-01375-HZ

United States District Court, D. Oregon.

Signed August 23, 2016

James K. Vucinovich, Benjamin T.G. Nivison, ROSSI VUCINOVICH PC, 1000 S.W. Second Avenue, Suite 1610, Seattle, Washington 98104, Attorneys for Plaintiff.

Timothy J. Coleman, W.S. Tab Wood, COSGRAVE VERGEER KESTER LLP, 888 S.W. Fifth Avenue, Suite 500, Portland, Oregon 97204, Steve Densley, 280 S. 400 W., Suite 250, Salt Lake City, Utah 84101, Attorneys for Defendant.

OPINION & ORDER

HERNANDEZ, District Judge

In this employment action under the Federal Rail Safety Act, 49 U.S.C. § 20109 (FRSA), Plaintiff Andrea Thomas alleges that her former employer, Defendant Union Pacific Railroad Company, terminated her in retaliation for filing a workplace injury report. Plaintiff moves for partial summary judgment and Defendant moves for summary judgment. I grant Plaintiff's motion in part and deny Defendant's motion.

BACKGROUND

Plaintiff worked for Defendant from April 2013 to August 4, 2014. She completed classroom training and then began conductor training. After completing remote control training, she worked off the "extra board" in Hinkle, Oregon, meaning she was one of several employees who, on a rotating basis, filled in when a regular employee was absent.

Plaintiff alleges that on March 22, 2014, she sustained a hearing loss injury when she was exposed to a very loud and unexpected noise from a locomotive. She was walking past the locomotive when, she states, the air dryer expelled a very loud, popping noise into her ear as she passed by. She alleges that she has had continuous ringing in her ear since that time. Within a few days of the incident, she started noticing some hearing difficulty and occasional dizziness. At the time, Plaintiff had a cold or sinus infection and was not sure if her symptoms were related to her cold or if she had an actual injury from the noise exposure.

Plaintiff went to an ear, nose, and throat (ENT) physician on April 17, 2014 who she asserts diagnosed her with tinnitus and a traumatic hearing loss in her left ear. She immediately called Defendant to report her injury. Her union representative told her that the correct injury reporting protocol was to contact Bryan Clark, the Director of Terminal Operations at Hinkle. Plaintiff called Clark. She states that he asked her several questions and then instructed her to come in at the beginning of her shift that day to complete a report.

Plaintiff asserts that in working with Clark to complete her injury report, he (1) refused to allow Plaintiff to have a co-worker with her while completing the report; (2) questioned the nature of her injury, including whether she was sure it was a one-time traumatic incident and not the result of cumulative exposure; (3) told her that based on her description, she could not have suffered the injury she was reporting; (4) told her that the piece of equipment that she alleges injured her was a spitter valve, not an air dryer; (5) refused to allow her to use a computer to confirm the date of the incident, which Plaintiff could not remember accurately; and (6) intimidated her by making various statements, including telling her that there were "repercussions" for falsifying a Federal Railroad Administration (FRA) document, that the railroad would "get to the bottom of this," and knew "how to handle people like this," and further calling her a "liar" for trying to falsify a FRA document.

According to Plaintiff, within a week after submitting her initial injury report on April 17, 2014, she confirmed with another employee that the locomotive appliance that had injured her was in fact an "air dryer," not a "spitter valve," and she independently confirmed the date of the incident as March 22, 2014. She alleges that after several attempts to contact Clark to correct her injury report, he finally responded and told her that she would be committing a FRA violation for falsifying a report. She was told by a different manager that she could go to Clark's office and supplement her report at her next shift, which she did. She contends that Clark refused to give her a copy of the supplemental report.

Plaintiff alleges that after she reported her injury, she was subject to hostile and intense scrutiny from management. She was repeatedly questioned about her personal protective equipment, as well as "pop tested" and "road block tested." She observed two managers, Clark and John Carbage, watching her through binoculars. She alleges that Clark once followed her for her entire shift. Two other managers also followed her.

Plaintiff alleges that on April 19, 2014, two days after she reported her injury to Clark, he emailed his supervisors stating that as he researched her alleged hearing loss incident, he was finding discrepancies such as an incorrect report of the injury date. He specifically requested that he be allowed to charge Plaintiff with dishonesty in reporting her injury and to terminate her. He was told he could not terminate her because given the injury report, a termination too close to the date of the injury report could be considered "a whistleblower issue." Clark admitted that he was highly suspicious of Plaintiff's report of injury and thought it was fraudulent.

In July 2014, two months after the injury report, Clark investigated Plaintiff for dishonesty in reporting her end-of-shift time (referred to as the "tie up procedure"), on select occasions in June and July 2014. Clark sought permission from his supervisors to charge Plaintiff for dishonesty. On August 4, 2014, Defendant terminated Plaintiff for dishonesty in connection with the investigation initiated by Clark regarding her tie up time.

STANDARDS

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of " ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting former Fed. R. Civ. P. 56(c) ).

Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik , 559 F.3d 924, 927–28 (9th Cir.2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan , 508 F.3d 1212, 1218 (9th Cir.2007) (citing Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ).

The substantive law governing a claim determines whether a fact is material. Suever v. Connell , 579 F.3d 1047, 1056 (9th Cir.2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc. , 658 F.3d 1108, 1112 (9th Cir.2011). If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

DISCUSSION

I. Applicable Law—FRSA

Under the relevant section of the FRSA,

(a) In general.—A railroad carrier engaged in interstate or foreign commerce, ... may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee's lawful, good faith act done, ...—

* * *

(4) to notify, or attempt to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee[.]

49 U.S.C. § 20109(a)(4). An action brought for a violation of the FRSA is governed by the rules and procedures set forth in 49 U.S.C. § 42121(b) ( "AIR-21"), an analogous statute governing airline employees. 42 U.S.C. § 20109(d)(2).

Claims under the FRSA, as governed by AIR-21, are adjudicated under a burden-shifting framework similar to that used in many other employment discrimination and retaliation statutes but possessing some unique distinctions. First, Plaintiff must make out a prima facie case of retaliatory discrimination.

Van Asdale v. Int'l Game Tech. , 577 F.3d 989, 996 (9th Cir.2009) (" Section 42121(b)(2)(B), in turn, sets forth a burden-shifting procedure by which a plaintiff is first required to make out a prima facie case of retaliatory discrimination"). To establish a prima facie case, Plaintiff must prove the following elements by a preponderance of the evidence: (1) she engaged in statutorily-protected activity; (2) the employer knew she engaged in a protected activity; (3) she suffered an unfavorable personnel action; and (4) her protected activity was a contributing factor in the unfavorable personnel action. Araujo v. N.J. Transit Rail Ops., Inc. , 708 F.3d 152, 157 (3d Cir.2013) ; see also Tamosaitis v. URS Inc. , 781 F.3d 468, 481 (9th Cir.2015) (reciting same elements as required to establish a prima facie case of retaliation under the Energy Reorganization Act and citing Araujo in support).

The Araujo court explained the FRSA retaliation law as follows:

The purpose of the [FRSA] is "to promote safety in every area of railroad operations." 49 U.S.C. § 20101. The FRSA was substantially amended in 2007 to include anti-retaliation measures..... Congress passed the FRSA amendment in 2007, expanding the scope of the anti-retaliation protections and providing enforcement authority with the Department of Labor. .....

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