Davis v. Union Pac. R.R. Co., CIVIL ACTION NO. 5:12-CV-2738

• Decision Date: 14 July 2014
• Docket Number: CIVIL ACTION NO. 5:12-CV-2738
• Parties: JEFFREY DAVIS v. UNION PACIFIC RAILROAD COMPANY
• Court: U.S. District Court — Western District of Louisiana

JEFFREY DAVIS v. UNION PACIFIC RAILROAD COMPANY

CIVIL ACTION NO. 5:12-CV-2738

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION

Dated: July 14, 2014

JUDGE TOM STAGG

MAGISTRATE MARK HORNSBY

MEMORANDUM RULING

Before the court are a motion for partial summary judgment filed by the plaintiff, Jeffrey Davis ("Davis"), and a cross-motion for summary judgment filed by the defendant, Union Pacific Railroad Company ("Union Pacific"). See Record Documents 58 and 59. For the reasons set forth herein, Davis's motion is DENIED, and Union Pacific's motion is DENIED.

I. BACKGROUND

Davis began working for Union Pacific in 2007 in Iowa, transferred to work for Union Pacific in Shreveport in June 2010, and was working at the "Reisor Yard" in Shreveport on July 15, 2010. See Record Document 58, Statement of Material Facts Not At Issue at ¶¶ 7-9; Record Document 59, Statement of Undisputed Facts at¶¶ 1-2. Davis alleges that he turned his ankle when some ballast¹ under his right foot shifted. See Record Document 21 at ¶ 8. The amended complaint further states that "the pain subsided" and Davis "was able to continuing [sic] working approximately 1 and a half hours until the end of his shift." Id. at ¶ 8. Union Pacific contends that, immediately after twisting his ankle, Davis looked at the area around him and he did not see anything out of the ordinary or anything defective to report. See Record Document 59, Statement of Undisputed Facts at ¶ 2. Davis claims his ankle was slightly swollen that night but he thought the swelling would go down overnight. See Record Document 21 at ¶ 9.

The next day, July 16, Davis alleges that his right calf and ankle were both swollen. He elevated his leg to try and reduce the swelling so that he could report for his shift at 3:30 p.m. See id. at ¶ 10. Davis contends that, when the swelling did not go away, he did not think he could perform work safely. See id. at ¶ 11. The complaint alleges that Davis called Union Pacific's Manager of Train Operations, Andrew Steinkamp ("Steinkamp") and left him a voicemail. See id. Specifically, Davis stated in the voicemail that he "could hardly walk" and was going to take theday off, but he was "not trying to put on a personal injury claim . . . ." Id. Union Pacific alleges that, in his voicemail to Steinkamp, Davis stated his injury was in no way work-related. See Record Document 59, Statement of Undisputed Facts at ¶ 3.

Also on July 16, Davis went to the emergency room at Willis-Knighton Medical Center in Shreveport. See Record Document 21 at ¶ 12; Record Document 58, Statement of Material Facts Not At Issue at ¶ 16. The amended complaint states that notes prepared by a nurse contain contradictory information on whether Davis's pain began on July 15 or July 16, despite Davis's contention that he advised the nurse that he turned his ankle at work on July 15. See Record Document 21 at ¶ 12. Davis was examined by Dr. John W. Reeves ("Dr. Reeves") and diagnosed with possible tendinitis or gout.² Dr. Reeves ordered Davis to schedule a follow-up appointment with Dr. Kirit S. Patel ("Dr. Patel"). See id.; Record Document 58, Statement of Material Facts Not At Issue at ¶¶ 16-17.

Steinkamp called Davis on July 19 to see how Davis was doing. See Record Document 21 at ¶ 13. Davis claims to have told Steinkamp he was diagnosed withgout. See Record Document 58, Statement of Material Facts Not At Issue at ¶ 23. However, according to Davis, Steinkamp believed that the injury might be work-related and Steinkamp spoke to Union Pacific's Return to Work Manager, Terry Owens ("Owens"), and Union Pacific's General Superintendent, Monty Whatley ("Whatley"), to inform them that Davis may have been injured at work. See id., Statement of Material Facts Not At Issue at ¶¶ 24-26, 28,30. In their opposition to Davis's motion, Union Pacific alleges that while Steinkamp thought it was possible that Davis's injury might be work-related, he had no reason to doubt the diagnosis of gout. See Record Document 72, Statement of Disputed Facts. Union Pacific farther alleges that Steinkamp directly asked Davis on two occasions whether his injury was work-related, and that Davis denied it both times. See Record Document 59, Statement of Undisputed Facts at ¶ 6.

Davis contends that, during their initial phone conversation on July 19, Steinkamp instructed Davis to call Owens. See Record Document 21 at ¶ 13. According to Davis, Owens called him on July 20 and Davis told her about turning his ankle and his visit to the emergency room. See id. at ¶ 15. Davis contends that he and Steinkamp spoke by phone on four occasions between July 19 and July 30, and that Davis was off work with permission until July 30. See Record Document 5 8, Statement of Material Facts Not At Issue at ¶¶ 19-20. Moreover, Davis alleges that,on July 30, Steinkamp instructed him to direct all further communications to Owens. See id. at ¶ 22. Effective July 30, Davis was placed on a medical leave of absence by. Union Pacific. See id. at ¶ 21; Record Document 59, Ex. 2.

On July 30, Davis was examined by Dr. Patel. The amended complaint states that Davis "presented with worsening right ankle pain, swelling and inability to bear weight." Record Document 21 at ¶ 16. Dr. Patel ordered a MRI for August 2. See id. Davis alleges that he received the MRI results on August 11 and, for the first time, was diagnosed with a severe high ankle sprain. See id. at ¶ 20. The next day, August 12, Davis states that he completed a Union Pacific Form 52032 Report of Personal Injury or Occupational Illness ("injury report"). See id. at ¶ 21; Record Document 58, Statement of Material Facts Not At Issue at ¶ 33. Union Pacific alleges that Davis met with Steinkamp in person on August 12 and told him he sprained his ankle at work on July 15, and that Davis claimed to know exactly when it occurred, where he was working, and that slipping on unstable ballast was what caused it. See Record Document 59, Statement of Undisputed Facts at ¶¶ 8-9.

According to Davis, Steinkamp confronted him about not submitting an injury report prior to August 12 and accused him of lying. See Record Document 21 at ¶ 22. Union Pacific contends that Steinkamp asked why Davis changed his mind about what happened on July 15 and that Davis did not have an answer. See RecordDocument 59, Statement of Undisputed Facts at ¶ 11. Moreover, Union Pacific alleges that Steinkamp suspected Davis of lying because he asked Davis several times before if the injury was work-related and Davis had indicated it was not. See id.. Statement of Undisputed Facts at ¶ 12. Union Pacific states that Steinkamp talked to Whatley about his concerns that Davis was lying, and they charged Davis with dishonesty. See id., Statement of Undisputed Facts at¶ 13. Davis specifically alleges that Steinkamp and Whatley issued a Level 5 disciplinary charge against him. See Record Document 58, Statement of Material Facts Not At Issue at ¶ 39. Davis claims that a Level 5 disciplinary charge is a dismissible offense. See id., Memorandum in Support at 9.

A "Notice of Investigation" letter was sent to Davis on August 19, informing him that a formal investigation was to occur on August 26. The notice specifically stated the investigation would develop facts and determine responsibility, if any, for

your alleged dishonest representation and embellishment of facts and circumstances surround an alleged on duty injury that you allege occurred at approximately 2115 hours, on July 15, 2010, . . . and your alleged misrepresentation of the facts surrounding an alleged on duty injury and alleged late reporting of an alleged on duty injury which was not made known to [Union Pacific] until August 12, 2012.

Record Document 58, Ex. I. The formal investigation was ultimately postponed toSeptember 24, 2010. See Record Document 21 at ¶¶ 26-27, 28; Record Document 58, Statement of Material Facts Not At Issue at ¶ 42. Davis contends that, prior to the formal investigation, Union Pacific terminated his health insurance and advised him that he was no longer employed, both of which Davis claims were retaliation for filing a personal injury claim and defending himself against the charge of dishonesty. See Record Document 21 at ¶ 28.

The formal investigation occurred on September 24. See Record Document 58, Statement of Material Facts Not At Issue at ¶ 42; Record Document 59, Statement of Undisputed Facts at ¶ 14. Davis alleges that Steinkamp was the "charging manager" and Lee Briggs was the "hearing officer" at the formal investigation. See Record Document 58, Statement of Material Facts Not At Issue at ¶¶ 43-44. Union Pacific states that Davis had union representation at the formal investigation. See Record Document 59, Statement of Undisputed Facts at ¶ 14. The amended complaint states that both Steinkamp and Davis testified. See Record Document 21 at ¶ 29.

Following the formal investigation, Whatley sent a letter, to Davis informing him that he was being dismissed from Union Pacific for violating the rule against dishonesty because of "your dishonest representation and embellishment of facts and circumstances surrounding an on duty injury . . . and your misrepresentation of the facts surrounding an on duty injury and late reporting of an on duty injury which wasnot made known to [Union Pacific] until 8/12/2010 . . . ." Record Document 58, Ex. K. Davis contends he thereafter filed a complaint with the United States Department of Labor's Occupational Safety and Health Administration ("OSHA"), which was ultimately dismissed. See Record Document 21 at ¶¶ 33, 35. Additionally, Davis states that he filed an objection and request for de novo review before an Administrative Law Judge ("ALJ"), which was dismissed when Davis gave notice of intent to file the instant lawsuit in this court. See id. at ¶¶ 36-37.

Davis filed the instant lawsuit on October 22, 2012. See Record Document 1. Davis's amended complaint states causes of...