Trimble v. Bnsf Ry. Co.

• Citation: 636 F.Supp.2d 916
• Decision Date: 01 July 2009
• Docket Number: No. 4:08CV3116.,4:08CV3116.
• Parties: Kenneth TRIMBLE, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — District of Nebraska

636 F.Supp.2d 916

Kenneth TRIMBLE, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant.

No. 4:08CV3116.

United States District Court, D. Nebraska.

July 1, 2009.

COPYRIGHT MATERIAL OMITTED

Joy A. Shiffermiller, Shiffermiller Law Firm, Lincoln, NE, for Plaintiff.

Krista M. Carlson, Thomas C. Sattler, Melanie J. Whittamore-Mantzios, Wolfe, Snowden Law Firm, Lincoln, NE, for Defendant.

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

Before suffering an on-the-job back injury in June 1991, the plaintiff, Kenneth Trimble, was employed by Burlington Northern Railroad Company ("BN"), the predecessor of the defendant, BNSF Railway Company. The personal injury claim was settled in October 1992, with Trimble acknowledging that he was permanently disabled from returning to work for BN and releasing all claims arising from or in any way related to his employment with BN. In August 2007, Trimble was hired by a BNSF contractor, Alstom Transportation, Inc., to be a production supervisor at the same facility where he previously worked for BN. Trimble alleges that he was terminated by Alstom in October 2007 at the request of BNSF.

In this diversity action Trimble claims that BNSF (1) intentionally interfered with his employment relationship with Alstom and (2) violated the Nebraska Fair Employment Practice Act ("NFEPA"), Neb.Rev.Stat. §§ 48-1101 to 48-1125, by discriminating against him on the basis of disability. BNSF has moved for summary judgment, arguing that (1) both claims are barred by the release Trimble executed in October 1992, (2) Trimble, by acknowledging his permanent disability in the release, is equitably estopped from claiming that he is qualified to work at the BNSF facility, (3) the intentional tort claim fails because BNSF's actions were justified, and (4) the NFEPA claim fails because BNSF had a legitimate, nondiscriminatory reason for its action. BNSF's motion for summary judgment will be granted with respect to the final contention, but in all other respects will be denied.

Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue. Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir.1999). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652 (8th Cir.1997).

In order to withstand a motion for summary judgment, the nonmoving party must substantiate their allegations with "`sufficient probative evidence [that] would permit a finding in [their] favor on more than mere speculation, conjecture, or fantasy.'" Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir.1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992)). Essentially the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Rule 56(e) provides that, when a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505. Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

BNSF has moved to strike paragraph 8 of Trimble's declaration in opposition to the summary judgment motion, in which he states that "[s]oon after I began employment, my Alstom supervisor told me that someone at BNSF alleged I was dealing and using drugs, which was untrue, so I did a drug test to clear up any misconceptions." (Filing 31-2, p. 2, ¶ 8.) BNSF objects to this statement "for the reason that it is immaterial and impertinent, and that it is scandalous." (Filing 33, p. 1, ¶ 1.) The objection is overruled and the motion to strike will be denied.¹ BNSF has also moved to strike various portions of Trimble's opposing brief, including five paragraphs of his "statement of undisputed material facts" and three sections of his argument. "A motion to strike is not the proper way to assert one's substantive disagreement" with the opposing party's position. McNeil v. City of Omaha, No. 8:07CV143, 2008 WL 4000813, *4 (D.Neb. Aug. 26, 2008). Also, the motion is unnecessary; if Trimble's statements or arguments are not supported by the record, or reference inadmissible evidence, they will not be accepted by the court.

Settlement Agreement

Trimble objects that the release he executed in October 1992 in settlement of his personal injury claim is not admissible under Federal Rule of Evidence 408. This objection is groundless. The rule only prohibits using evidence of a compromise "to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction[.]" Fed.R.Evid. 408(a). BNSF is using the settlement agreement to defend itself.

The release states in pertinent part:

GENERAL RELEASE

1. In consideration of [redacted], . . . I, KENNETH E. TRIMBLE, hereby release and forever discharge BURLINGTON NORTHERN RAILROAD COMPANY, and to the same extent as if expressly named herein, its predecessors, successors, assigns, lessors, officers, companies, agents, and employees, and all other persons whomsoever from any and all claims and liabilities of every kind and nature, INCLUDING CLAIMS FOR INJURIES, IF ANY, WHICH ARE UNKNOWN TO ME AT THE PRESENT TIME resulting from accidents occurring at or near Alliance, Nebraska, on or about June 2, 1991, . . . .

2. In further consideration of this settlement, it is understood the injuries, I, KENNETH E. TRIMBLE, have sustained will forever and permanently disable me from returning to work for BURLINGTON NORTHERN RAILROAD COMPANY and any of its subsidiaries or successors, and I hereby release said Company from all claims known or unknown, whether based on federal or state law, including, but not limited to, personal injury, labor claims, employment practices, disability, and other claims arising from or in any way related to my employment with BURLINGTON NORTHERN RAILROAD COMPANY, including any claim for present and future reinstatement which I hereby expressly waive and release.

(Filing 30-6, p. 5.)

A settlement agreement is subject to the general principles of contract law; the terms of a release must be accorded their plain and ordinary meaning as the ordinary and reasonable person would understand them. See Thrower v. Anson, 276 Neb. 102, 752 N.W.2d 555, 561 (2008). A contract is construed to give effect to the parties' intentions at the time the writing was made. See McCord & Burns Law Firm, LLP v. Piuze, 276 Neb. 163, 752 N.W.2d 580, 587 (2008). It is clear that BN and Trimble intended not only to settle the personal injury claim, but also to effectuate a general release of all claims "arising from or in any way related to" Trimble's employment with BN.

"Arise" has been defined as "[t]o spring up, originate, to come into being. . . ." Black's Law Dictionary 108 (6th ed.1990). When interpreting the phrase "arising out of the use" in an insurance contract, the Nebraska Supreme Court held that such words are very broad, general, and comprehensive terms, and are ordinarily understood to mean originating from, growing out of, or flowing from. National Union Fire Ins. Co. v. Bruecks, 179 Neb. 642, 139 N.W.2d 821 (1966).² The court cited with approval the following language of the Pennsylvania Supreme Court: "`[A]rising out of' means causally connected with, not proximately caused by, and that a `but for' causation, that is, a cause and result relationship, is enough to satisfy this provision of the policy." 179 Neb. at 649, 139 N.W.2d at 827 (citing Mfrs. Cas. Ins. Co. v. Goodville M. Cas. Co., 403 Pa. 603, 170 A.2d 571 (1961)).

Hammond v. Nemaha County, 7 Neb.App. 124, 581 N.W.2d 82, 87 (1998).

BNSF argues that the present action arises from Trimble's employment with BN because "[i]f Trimble had not been previously employed by BN, BNSF would never have taken the actions it did to enforce Trimble's agreement because the agreement would not have existed." (Filing 29, p. 6.) This is invalid reasoning.

To prevail on his intentional interference claim, Trimble must prove that BNSF's actions were not justified by the release or by any other reasons cited by BNSF, such as his allegedly poor safety record while working for BN. Without the release or the history of work-related accidents, Trimble would have...