Ray v. Union Pac. R.R. Co.

• Decision Date: 14 November 2013
• Docket Number: No. 4:11–cv–334.,4:11–cv–334.
• Citation: 971 F.Supp.2d 869
• Parties: Thomas W. RAY, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Iowa

971 F.Supp.2d 869

Thomas W. RAY, Plaintiff,

v.UNION PACIFIC RAILROAD COMPANY, Defendant.

No. 4:11–cv–334.

United States District Court,

S.D. Iowa,

Central Division.

Sept. 13, 2013.

Order Denying Motion to Amend Nov. 14, 2013.

Charles A. Collins, Charles A. Collins PA, St. Paul, MN, Karin R. Zeigler, Zeigler Law Firm PC, West Des Moines, IA, for Plaintiff.

Bruce E. Johnson, Cutler Law Firm PC, West Des Moines, IA, for Defendant.

ORDER

ROBERT W. PRATT, District Judge.

Before the Court is Union Pacific Railroad Company's (“Defendant” or “UP”) Motion for Summary Judgment (“Motion”), filed June 10, 2013. Clerk's No. 21. Thomas W. Ray (“Plaintiff” or “Ray”) filed a resistance to the Motion on July 12, 2013. Clerk's No. 26. Defendant replied on July 22, 2013. Clerk's No. 27. The matter is fully submitted.¹

I. FACTUAL BACKGROUND

Plaintiff began working for Defendant on June 17, 1996. Def.'s Statement of Undisputed Material Facts in Supp. of Its Mot. For Summ. J. (“Def.'s Facts”) (Clerk's No. 21.2) ¶ 1. At the time of Plaintiff's dismissal on December 30, 2009, he was employed as assistant foreman in Defendant's track repair department in Boone, Iowa. Id. ¶ 2. In this position, Plaintiff was represented by the Brotherhood of Maintenance of Way Employees Division, International Brotherhood of Teamsters (“BMWED”). Id. ¶ 3.

In April 2008, Plaintiff complained to his physician about pain in both of his knees. Id. ¶ 4. Plaintiff was diagnosed and treated for obesity and degenerative arthritis. Id. ¶ 5. Over time, Plaintiff's right knee pain worsened and, by 2009, he required surgery to repair it. Id. ¶¶ 6–7. In October 2009, Plaintiff informed his supervisor, Jim Biggerstaff (“Biggerstaff”), that he needed time off work for knee surgery. Id. ¶ 8. Biggerstaff asked Plaintiff whether the surgery was related to an on-duty injury, but Plaintiff replied that his surgery was not related to his work at the railroad. Id. ¶¶ 9–10. Defendant granted Plaintiff time off and Plaintiff had knee surgery on November 10, 2009. Id. ¶ 11.

On November 13, 2009, an attorney contacted Defendant and advised it that Plaintiff claimed to have cumulative knee injuries caused by work and that he was representing Plaintiff in connection with a potential action under the Federal Employers Liability Act (“FELA”).²Id. ¶ 12. On November 19, 2009, Plaintiff reported to Defendant for the first time that his knee condition was work-related and filled out Form 52032, Defendant's required injury report form. Id. ¶ 13. One of the questions on Form 52032 was, “When did you first become aware that this condition may have been caused by your work?” Id. ¶ 14. Plaintiff's response to the question was a “year ago.” Id.

Rule 1.6 of Defendant's General Code of Operating Rules (“Code”) provides, among other things, that “Employees must not be ... Dishonest.” Def.'s Facts ¶ 15; Def.'s App. in Supp. of Mot. for Summ. J. (“Def.'s App.”) (Clerk's No. 21.1) at 12 8.³ Rule 1.2.5 of Defendant's Code provides in pertinent part: “All cases of personal injury, while on duty or on company property, must be immediately reported to the proper manager and the prescribed form completed.” Def.'s Facts ¶ 16; Def.'s App. at 129. On November 24, 2009, Defendant issued a Notice of Investigation to Plaintiff, charging him with violation of the honesty and late-reporting rules.⁴ Def.'s Facts ¶ 18. A hearing was held on December 22, 2009, wherein Plaintiff was represented by BMWED Vice Local Chairman Rod Mulder (“Mulder”). Id. ¶ 19. Five witnesses testified about Plaintiff's injury report, including Biggerstaff. Id. ¶ 20. Mulder cross-examined each witness, was provided an opportunity to present evidence on Plaintiff's behalf, and made a closing argument. Id. ¶ 21. Plaintiff was present for the entire hearing and had the opportunity to present evidence, ask questions, and otherwise speak on his own behalf.⁵Id. ¶ 22.

In his own testimony at the December 22, 2009 hearing, Plaintiff explained that he initially told Biggerstaff that his knee injuries were not work-related because he did not realize until after his surgery, while discussing it with his mother and some coworkers, that his work may have contributed to the wear and tear on his knees.⁶Id. ¶ 23. Plaintiff further testified that he first learned that his knee injury could have been the result of cumulative trauma during this discussion with his mother and coworkers. Id. ¶ 24 At the December 22 hearing, Plaintiff additionally testified that he felt intimidated at the November 19, 2009 meeting where he filled out an injury report. Id. ¶ 25; see Def.'s App. at 101 (Q. “In your meeting on the 19th ... did you feel ... intimidated at all during that meeting?” Plaintiff: “I did, yes. I was very uncomfortable.” Q. “Well why—well why would you feel intimidation?” Plaintiff: “Well they ... they put me in a room shut the door and there was three guys standing—standing there looking at me asking question after question after question.”).

According to Defendant, its progressive disciplinary policy, known as the “UPGRADE” policy, is designed to ensure that rule violations are consistently addressed. Def.'s Facts ¶¶ 26–27; see Def.'s App. at 10 (“The intent of this policy is to provide a uniform structure to address rule and policy violations in a consistent and fair manner.”). The UPGRADE policy provides that “All discipline is determined using the Discipline Assessment Table and Progressive Discipline Table.” Def.'s Facts ¶ 28; Def.'s App. at 11. The Discipline Assessment Table separates Defendant's Code into five levels, with Level 1 encompassing minor rule violations and Level 5 encompassing major rule violations. Def.'s Facts ¶ 28; Def.'s App. at 16–20. For instance, violations of reporting requirements under Rule 1.2.5 are assessed at Level 3, which results in “Up to five days off work without pay or up to one day training without pay. A corrective Action Plan must be developed upon return to work.” Def.'s App. at 17. Violations of Rule 1.6 of Defendant's Code, which provides that employees must not be “dishonest,” are assessed at Level 5, resulting in “Permanent dismissal.” ⁷ Def.'s App. at 20; see also Def.'s Facts ¶ 29–30 (stating that “All level 5 violations require permanent dismissal” and noting that violations of Rule 1.6 are Level 5 violations). Following the December 22 hearing, Defendant's General Superintendent, Karol Burchfield (“Burchfield”), reviewed the transcript and exhibits in light of the UPGRADE policy and determined that Plaintiff had violated both Rule 1.6 and Rule 1.2.5. Def.'s Facts ¶¶ 26, 32. Plaintiff was then dismissed from his employment with Defendant in a letter from Burchfield dated December 30, 2009. ⁸Id. ¶ 33; Def.'s App. at 143.

Mulder appealed Plaintiff's dismissal on February 2, 2010 in a letter to Defendant's Assistant Director of Labor Relations, Justin Wayne, and requested that Plaintiff be reinstated with back pay and lost benefits. Def.'s Facts ¶¶ 34–35. Wayne reviewed the evidence and upheld Plaintiff's dismissal. Id. ¶ 36. BMWED General Chairman Wayne E. Morrow then appealed Plaintiff's dismissal to Defendant's Director of Labor Relations, Brant Hanquist (“Hanquist”), who also reviewed the evidence and upheld Plaintiff's dismissal. Id. ¶¶ 37–38. Eventually, Defendant's representatives met with BMWED representatives to attempt to resolve Plaintiff's claim and the case was referred to a Public Law Board (“PLB”) for arbitration under the Railway Labor Act (“RLA”).⁹Id. ¶¶ 39–40.

While Plaintiff's RLA claims was pending, Defendant deposed Plaintiff in connection with a FELA claim that he had filed in Iowa state court.¹⁰Id. ¶ 41. On January 4, 2012, Plaintiff testified that he knew as early as 2008 that his work activities were causing his knee problems and that he waited at least a month to report his injury. Id. ¶¶ 42, 44. Plaintiff also testified that he had a good relationship with his supervisors, Biggerstaff always treated him well, and that during the November 19, 2009 meeting where he filled out an injury report, “everything was just fine” and there was a “nice discussion.” Id. ¶¶ 45–46. Nevertheless, Plaintiff also testified that he did not tell Biggerstaff that his injury was work-related because he feared losing his job.¹¹Id. ¶ 43.

On April 18, 2013, the PLB issued its determination, concluding that “harassment and intimidation [did not] play[ ] any role in [Plaintiff's] decision not to tell the truth to Manager Biggerstaff in mid-October 2009” and that “substantial evidence was adduced at the Investigation that [Plaintiff] was guilty as charged.” Def.'s App. at 183. However, because Plaintiff had “17 years of service with a good work record,” the PLB determined that the “discipline was excessive” and reduced it to “lengthy suspension which is corrective in nature and in accordance with [Defendant's] UPGRADE Discipline policy.” Id. Plaintiff was thus “reinstated to service with seniority intact, all benefits unimpaired, but with no back pay.” Id. Plaintiff filed the present action on July 18, 2011, asserting claims of “discrimination and retaliation” and “intimidation and chilling effect,” in violation of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. See generally Compl. (Clerk's No. 1).

II. SUMMARY JUDGMENT STANDARD

The term “summary judgment” is something of a misnomer. See D. Brock Hornby, Summary Judgment Without Illusions, 13 Green Bag 2d 273 (Spring 2010). It “suggests a judicial process that is simple, abbreviated, and inexpensive,” while in reality, the process is complicated, time-consuming, and expensive. ¹²Id. at 273, 281. The complexity of the process, however, reflects the “complexity of law and life.” Id. at 281. “Since the constitutional right to jury trial is at stake,” judges must engage in a “paper-intensive and often tedious” process to “assiduously avoid deciding disputed facts or inferences” in a quest to determine whether a record contains...