Glow v. Union Pacific R. Co.

• Decision Date: 26 August 2009
• Docket Number: No. CIV. S-08-1250 LKK/EFB.,CIV. S-08-1250 LKK/EFB.
• Citation: 652 F.Supp.2d 1135
• Parties: David Chad GLOW, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY and Does through 20, inclusive, Defendants.
• Court: U.S. District Court — Eastern District of California

652 F.Supp.2d 1135

David Chad GLOW, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY and Does through 20, inclusive, Defendants.

No. CIV. S-08-1250 LKK/EFB.

United States District Court, E.D. California.

August 26, 2009.

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Philip W. Ganong, Ganong & Wyatt, Bakerfield, CA, for Plaintiff.

Stephanie Lynn Quinn, Thomas Allen Cregger, Wendy M. Motooka, Randolph Cregger & Chalfant LLP, Sacramento, CA, for Defendants.

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

Plaintiff is employed by defendant Union Pacific Railroad Company as a locomotive engineer. He has brought suit alleging that defendant, due to the condition of the equipment in some of defendant's trains, violated the Federal Employers' Liability Act, 45 U.S.C. § 51, the Locomotive Inspection Act, 49 U.S.C. § 20701, and by virtue of those conditions and other conduct violated the California Fair Employment and Housing Act, Cal. Gov't Code § 12900. Pending before the court is defendant's motion for summary judgment on all causes of action. The court resolves the motion on the papers and after oral argument. For the reasons stated herein, the motion is granted in part and denied in part.

I. BACKGROUND AND FACTS¹

Plaintiff is a locomotive engineer employed by defendant, who operates as an interstate common carrier. In early 2007, plaintiff was on medical leave and, in June 2007, returned to work. At that time, he was cleared to work without any restrictions.

The next month, he sent to defendant's General Superintendent a note written by Dr. Jerome Schofferman on a prescription pad that stated, "Reasonable accommodation, Ergonomic locomotive operator chair, Head/neck rest/restraint, Good arm rests, Air or hydraulic ride." Plaintiff has tendered evidence that Dr. Schofferman also faxed to defendant's employee Ray Perry a copy of his July 25, 2007 evaluation of plaintiff, in which he concluded that plaintiff required a seat with a head restraint or headrest, an air-ride or hydraulic system, and adequate, cushioned arm supports. Decl. of Jerome Schofferman In Support of Pl.'s Opp'n to Def.s' Mot. for Summ. J. ("Schofferman Decl.") ¶ 4, Ex. 2.

On September 14, 2007, plaintiff was assigned as a locomotive engineer traveling from Portola, California to Elko, Nevada. The needle of the speedometer in the engineer's console would begin to bounce when the train reached approximately fifty miles per hour. At the time, plaintiff had a watch and a Table of Train Speeds, which he could use to calculate the train's speed. There was also a fully functional speedometer in the locomotive's rear panel, which plaintiff could see from his engineer's seat by turning his head and looking over his shoulder. See Decl. of Phillip Ganong In Support of Pl.'s Opp'n to Def.s' Mot. for Summ. J. ("Ganong Decl.") Ex. 4 (Glow Depo. at 32:5-33:21).

Instead of using his watch and table to calculate the train's speed, plaintiff looked at the speedometer on the rear panel. Plaintiff has testified that he did so because to calculate the speed "would be a little bit hard," given that he also had to monitor speed restrictions and signals while the train was traveling. Ganong Decl. Ex. 6 (Glow Depo. at 39:18-40:10). During the ten hour trip, plaintiff looked over his shoulder at the rear speedometer approximately every thirty seconds.

Plaintiff has tendered evidence that the repeated turning of his neck, in light of his prior injury, further injured his spine. Decl. of Peter Francis In Support of Pl.'s Opp'n to Def.s' Mot. for Summ. J. ("Francis Decl.") ¶ 5; see also Decl. of James Reynolds In Support of Pl.'s Opp'n to Def.s' Mot. for Summ. J. ("Reynolds Decl.") Ex. 1 at 3-4. In his separate statement of disputed facts and in his opposition to defendant's motion, plaintiff asserts that the seat at the engineer's console was also "badly maintained," Pl.'s Sep. Statement of Disputed Material Facts in Support of Opp'n to Def.'s Mot. for Summ. J. ¶ 8, but the only evidence tendered to support this is a reference in the report of Dr. James Reynolds, one of plaintiff's treating physicians. There, Dr. Reynolds mentioned notes from an examination performed by Dr. Schofferman on September 18, 2007, in which Dr. Schofferman had documented that the plaintiff reported the train had a "flimsy" seat. Reynolds Decl. Ex. 1 at 3; see also Ganong Decl. Ex. 6 (Glow Depo. at 33:8-21) (describing the seat as "loose with a floppy back," which prevented it from swiveling freely).

On October 23, 2007, Richard Sweet, identified as defendant's claims director, sent a letter to plaintiff denying the July request for accommodation as "unrealistic." See Decl. of Richard Sweet in Support of Def.'s Mot. for Summ. J. ("Sweet Decl.") Ex. B. As an engineer, plaintiff must operate whatever locomotive he is assigned when he is called to duty and defendant asserts that it has over 8,000 locomotives. See Decl. of Gary Harlan in Support of Def.'s Mot. for Summ. J. ("Harlan Decl.") ¶ 3; Sweet Decl. Ex. B. Sweet offered that defendant was willing to purchase for plaintiff either a "McCarty's Sacro Ease Neck Ease" or a "McCarty's Sacro Ease Deluxe seat support" that plaintiff could use at work and for personal use. See Sweet Decl. Ex. B.

Plaintiff responded in writing, asking for additional information about the McCarty products. Defendant responded in writing by directing plaintiff to the McCarty website. On December 6, 2007, plaintiff had surgery to treat his original spine injury.

II. STANDARD FOR A MOTION FOR SUMMARY JUDGMENT UNDER FEDERAL RULE OF CIVIL PROCEDURE 56(C)

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 853 (9th Cir.1995).

Under summary judgment practice, the moving party [A]lways bears the initial responsibility of informing the district court of the basis for 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). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322, 106 S.Ct. 2548. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. 2548.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Sicor Ltd., 51 F.3d at 853.

In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. 1348; see also First Nat'l Bank, 391 U.S. at 289, 88 S.Ct. 1575; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.1998). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Owens v. Local No. 169, Ass'n of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir.1992) (quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987)), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; see also Cline v. Indus. Maint. Eng'g & Contracting Co., 200 F.3d 1223, 1228 (9th Cir.2000).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); see also In re Citric Acid Litigation, 191 F.3d 1090, 1093 (9th Cir.1999). The evidence of the opposing party is to be believed, see Anderson, 477 U.S. at 255, 106 S.Ct. 2505, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)); see also Headwaters Forest Def. v. County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, ...