Rydzeski v. Burlington Northern

• Decision Date: 27 March 1989
• Docket Number: Civ. No. 4-87-940.
• Citation: 708 F. Supp. 1057
• Parties: Patricia RYDZESKI v. BURLINGTON NORTHERN, et al.
• Court: U.S. District Court — District of Minnesota

708 F. Supp. 1057

Patricia RYDZESKI v. BURLINGTON NORTHERN, et al.

Civ. No. 4-87-940.

United States District Court, D. Minnesota, Fourth Division.

March 27, 1989.

David G. Moeller and Brian W. Rude, Graham, Erickson, Hartman & Johnson, Minneapolis, Minn., for plaintiff.

Susan D. Thurmer, Thomas W. Spence Law Office, St. Paul, Minn., for defendants Burlington Northern R. Co. and Ross Traver.

Richard A. Williams and Michael A. Unger, Hvass, Weisman & King, Minneapolis, Minn. (John A. Edmond and Martha Walfoort, Guerrieri, Edmond & James, Washington, D.C., of counsel), for defendants Brotherhood of Ry., Airline, and Steamship Clerks, Edward Doberstein, and Cindy Burke.

ORDER

ROSENBAUM, District Judge.

Defendants, Brotherhood of Railway, Airline, and Steamship Clerks (BRAC) (now Transportation Communications Union), Edward Doberstein, and Cindy Burke (union defendants), move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Fed.R.Civ.P.). A hearing was held on October 26, 1988. After oral argument, and based upon the files, records, and proceedings herein, as well as for the reasons set forth below, union defendants' motion for summary judgment is granted.

Background

On July 29, 1985, plaintiff was assaulted by Charles A. Price, a co-worker and fellow union member at Burlington Northern Railroad Company (BN). At the time of the incident, plaintiff served as a clerk at BN's freight yard in Fridley, Minnesota. She was one of the clerks on the guaranteed Rotating Extra Board (GREB) shift.

BN conducted an investigation and hearing to determine whether either or both of the involved employees should be disciplined for their part in the incident. In such an investigation, Edward Doberstein (Doberstein), chairman of the Protective Committee for Local Lodge 1310 (local chairman) of BRAC, would normally represent a union employee at a disciplinary hearing. In this case, however, there were two union employees being investigated. Doberstein, therefore, consulted the BN/BRAC System Board of Adjustment (system board) concerning appropriate representation in cases involving two union members. To remedy this situation, the system board's general chairman assigned Doberstein to represent Price and, with plaintiff's consent, assigned Tom Wilcox, a BRAC local chairman from a sister lodge, St. Paul G.O.B., to represent plaintiff. Doberstein declaration, par. 5, pp. 2-3, dated September 30, 1988; see also plaintiff's deposition, pp. 15-16, 127.

Following BN's inquiry, Price was terminated. BRAC filed an appeal and subsequently Price was reinstated without back pay on a leniency basis. No disciplinary action was taken against plaintiff by BN. Id.; see also Doberstein deposition, p. 142.

As a result of injuries sustained during the assault, plaintiff was unable to return to work until September 9, 1985. Complaint, par. 9. Her return was under medical restrictions against lifting, gripping, raising hands, bending, twisting, pushing, pulling, prolonged sitting, overhead reaching, static positions, and overhead looking. Doberstein declaration, par. 6, p. 3.

Shortly after her return to work, plaintiff approached a lawyer, Robert J. Tennessen, Esq., who, by letter, advised Doberstein that BN was violating plaintiff's medical/work restrictions by assigning her to jobs requiring activities prohibited by her doctors. See Letter from Robert J. Tennessen, Esq., to Edward Doberstein, dated September 30, 1985. In response to Tennessen's letter, Doberstein first spoke with plaintiff and then requested a meeting with Ross Traver (Traver), BN's general agent. Doberstein declaration, par. 7, p. 3. Tennessen's concerns were reinforced by a letter from Cheryl Peterson, plaintiff's physical therapist, advising BN that plaintiff had been placed into jobs which required activities not allowed by her medical restrictions. Letter from Cheryl Peterson to Gregg J. Tucek (Tucek), dated October 7, 1985.

On October 10, 1985, plaintiff and Doberstein met with Traver and Tucek to discuss plaintiff's medical restrictions, Peterson's letter, plaintiff's seniority, and available jobs. At that meeting, plaintiff could not identify any available positions which were compatible with her medical/work restrictions. Doberstein declaration, par. 8, p. 4.

On October 23, 1985, BN placed Rydzeski on medical leave status, concluding there were no positions available which plaintiff could perform until her physical and emotional condition improved. See letter from Ross Traver, general agent, BN, to P.J. Rydzeski, dated October 25, 1985; see also letter from Edward Doberstein, BRAC local chairman, to Ross Traver, general agent, BN, dated October 11, 1985.

It was suggested at the October 10, 1985, meeting that plaintiff consult an orthopedist or other specialist for further medical treatment. Doberstein declaration, par. 11, p. 4. Plaintiff consulted with Dr. Steven Noran at the Noran Neurological Clinic. Plaintiff also continued treatment with Denise Nelson, a licensed psychologist.

In March, 1986, plaintiff presented BN with revised medical/work restrictions. Nelson advised that plaintiff could return to work but should not be subjected to working with Charles Price. Letter from Denise Nelson, dated March 3, 1986. Dr. Noran also advised that plaintiff could return to work, subject to the following restrictions: "no truck driving," "no looking upward," and "no regular lifting or stair climbing." Dr. Noran note, dated March 3, 1986. Dr. Noran further advised that plaintiff could "begin ½ time for first two weeks. Day shift only to begin personel (sic) restrictions as per psychologist." Id.

On reading Dr. Noran's restrictions, Doberstein became concerned that Dr. Noran's "day shift only" restriction was an open-ended requirement. Doberstein deposition, p. 116. Plaintiff did not have sufficient seniority to hold a day shift only position. Her seniority was sufficient to allow her a GREB position, but these required an employee to work all three shifts. Doberstein declaration par. 13, pp. 4-5. Doberstein expressed his concern to plaintiff, who instructed him that Dr. Noran did not mean to maintain the limitation indefinitely, but only as a transitional measure — to ease her back into work. See Doberstein declaration, par. 13, p. 5.

BN read Dr. Noran's day shift only restriction to mean plaintiff could work only days indefinitely. Id. at par. 14, p. 5. BN advised plaintiff there were no positions available which would accommodate her medical restrictions. Letter from M.L. Holsteen, Terminal Superintendent, BN, to Patricia J. Rydzeski, dated April 4, 1986.

Over the next several months, Doberstein and plaintiff discussed her medical restrictions. He urged her to seek clarification from Dr. Noran concerning the day shift only restriction. Doberstein, with plaintiff's consent, attempted to reach Dr. Noran by telephone to obtain the clarification. Dr. Noran, however, would not discuss the matter with Doberstein. Doberstein declaration, par. 28, p. 9. BRAC local president Cindy Burke (Burke) and chairman Doberstein offered to accompany plaintiff to Dr. Noran's office to explain to him the required clarification. Plaintiff refused their offer. Doberstein declaration, par. 18, p. 6. Twice thereafter Dr. Noran provided medical updates which simply reiterated his March 3, 1986, restrictions. See Dr. Noran's notes dated April 7, 1986, and November 5, 1986. At no point did plaintiff obtain from Dr. Noran the clarification Burke and Doberstein requested. Doberstein declaration, par. 17, p. 6.

In December 1986, Doberstein referred plaintiff's case to the Executive Board of BRAC Lodge 1310 for review and recommendation in an attempt to determine what was needed to get plaintiff back to work. Doberstein declaration, par. 27, p. 9. Plaintiff was present at the board's December 8, 1986, meeting, where her medical restrictions—particularly Dr. Noran's day shift only restriction — were reviewed. Id.; see also Notes of BRAC Lodge 1310 Executive Board Meeting, December 8, 1986. It was recommended that a) plaintiff should request that Dr. Noran clarify his medical restrictions and state clearly that the day shift only restriction was intended to be temporary, and b) a union local representative should accompany plaintiff to Dr. Noran's office to explain to Dr. Noran exactly what was needed by the union and how difficult it would be to get plaintiff back to work under the restriction. Id. Protective Committee member George McCoy offered to go with plaintiff to Dr. Noran's office. Plaintiff did not follow through with the board's recommendation or with McCoy's offer. Doberstein Declaration, par. 27, p. 9.

In the spring of 1987, plaintiff requested that Doberstein contact Dr. Thomas Mears, BN's chief medical officer, to ascertain exactly what had to be done for plaintiff to get back to work. Doberstein deposition, pp. 101-102. When Doberstein spoke with Dr. Mears, he learned that Dr. Mears had received correspondence from plaintiff's psychologist, Denise Nelson. Doberstein declaration, par. 29, pp. 9-10; see also Letter from Denise Nelson, licensed psychologist to Dr. Mears, Chief Medical Officer, BN, December 10, 1986. Dr. Mears requested that plaintiff receive a psychological evaluation to determine whether she was emotionally able to return to work. Doberstein declaration, par. 29, p. 10. Doberstein relayed BN's request to plaintiff, who agreed to the evaluation. See plaintiff's deposition, p. 173; see also Doberstein declaration, par. 30, p. 10.

Shortly after plaintiff's psychological evaluation was completed, in July, 1987, BN returned plaintiff to her regular GREB position.¹ Id.

With the above as prelude, the complaint before this Court is focused on the following facts: plaintiff was off work from July, 1985, to July, 1987. During that period, neither plaintiff nor her union, on her behalf, filed a claim or grievance against BN seeking plain...