482 F.3d 969 (7th Cir. 2007), 06-2900, Gwin v. American River Transp. Co.

Docket Nº:06-2900.
Citation:482 F.3d 969
Party Name:Larry GWIN, Plaintiff-Appellee, v. AMERICAN RIVER TRANSPORTATION COMPANY, Defendant-Appellant.
Case Date:April 10, 2007
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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482 F.3d 969 (7th Cir. 2007)

Larry GWIN, Plaintiff-Appellee,



No. 06-2900.

United States Court of Appeals, Seventh Circuit.

April 10, 2007

Argued Feb. 9, 2007.

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Christopher W. Dysart (argued), Dysart Law Firm, St. Louis, MO, for Plaintiff-Appellee.

Gary T. Sacks (argued), Goldstein & Price, St. Louis, MO, for Defendant-Appellant.

Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.

FLAUM, Circuit Judge.

Larry Gwin worked as a towboat operator for American River Transportation Company ("Artco") until May 2003. He and five other former Artco employees filed suit in federal district court arguing that Artco fired them because they refused to perform duties they considered unsafe, in violation of 46 U.S.C. § 2114(a)(1)(B). After a 12-day trial, the jury returned a verdict in favor of Gwin, but against the other plaintiffs. Artco then filed a motion for judgment as a matter of law, a motion for costs, and a motion to compel payment for its experts' expenses. The district court denied Artco's motions and Artco appeals. For the following reasons, we affirm the judgment of the district court and remand for a finding on costs.

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Artco operates towboats on the Mississippi River between St. Paul, Minnesota and New Orleans, Louisiana. Artco has two types of vessels: all-river vessels and lower-river vessels. The all-river vessels are smaller because they have to navigate through narrower passages in the river beginning just north of St. Louis. The lower-river boats are larger and travel only between St. Louis and New Orleans. Prior to 1999, the largest lower-river vessels towed forty barges, five long and eight wide. 1

In 1999, Artco initiated a "six long" program meaning that its lower river vessels would push forty-eight barges, six long and eight wide. At that time, no other towboat company was pushing six long tows on the Mississippi River. Artco ran the program on a trial basis for six months and then adopted it as part of its regular business practice. Pilots and captains who wanted to participate in the program had to receive extra training, but were also paid a higher salary than those pilots and captains pushing smaller tows. 2 Artco maintains that at all times the six long program was voluntary.

Larry Gwin captained the Daniel MacMillan, a 10,500 horsepower, triple screw (three propellers) towboat, the largest size towboat on the river. Gwin was the Daniel MacMillan's captain for five and a half years and routinely pushed forty-barge tows between St. Louis and New Orleans. Gwin's supervisor, Port Captain Bruce Hussell, informed Gwin of the six long program. Hussell told Gwin that the program was voluntary but that Gwin should think about participating. Gwin eventually decided not to participate in the program because he thought that the program was unsafe. Gwin informed Hussell of his decision.

On January 16, 2002, Gwin received a written evaluation. Hussell rated Gwin's performance as "good" in 12 of 13 categories but rated his performance as "fair" in category # 9, which was titled "does he/she operate the vessel to its full potential." Under the section titled "recommendations for improvement," Hussell wrote, "Other vessels in the class as the [Daniel MacMillan] take 46 loads southbound." On February 1, Gwin wrote Hussell a letter in response to the evaluation and sent copies to Artco's President and Vice President. Gwin wrote,

As for # 9 of the evaluation, this is an area which we have discussed on many occasions. You have asked me if I was willing to take 46 barges southbound. I advised you that the safe number of barges to navigate southbound on the Mississippi River is determined by the river conditions, but never more than 40.... Some of the reasons I gave you for not wanting to take more than 40 barges southbound include my concern for the life and safety of my crew and my livelihood, i.e., my license. Concerning my license, each time we discussed me taking 46 barges southbound, you have been quick to say that this was my decision and was strictly voluntary. You stressed to me that it was not mandatory, not something Artco would force me to do.

Gwin testified that after he sent the letter, Hussell continued to ask him to push six long tows. Gwin again told Hussell, "I

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thought we talked about this ... I am not going to do it."

In January 2003, Gwin received another evaluation from Hussell. Hussell rated Gwin's performance as "good" in 11 of 13 categories. This time he...

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