Weeks v. Union Pac. R.R. Co., CASE NO. 1:13–CV–1641 AWI JLT

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: ANTHONY W. ISHII, SENIOR DISTRICT JUDGE
• Citation: 137 F.Supp.3d 1204
• Decision Date: 07 October 2015
• Docket Number: CASE NO. 1:13–CV–1641 AWI JLT
• Parties: Trevor Weeks, Plaintiff v. Union Pacific Railroad Co., Defendant

137 F.Supp.3d 1204

Trevor Weeks, Plaintiff
v.
Union Pacific Railroad Co., Defendant

CASE NO. 1:13–CV–1641 AWI JLT

United States District Court, E.D. California.

Signed October 7, 2015

137 F.Supp.3d 1209

Kay McKenzie Parker, Law Office of Kay McKenzie Parker, San Jose, CA, William J. Smith, Smith Johnson, Inc., Fresno, CA, for Plaintiff.

Charles L. Thompson, Jill V. Cartwright, Ogletree Deakins Nash Smoak & Stewart, PC, San Francisco, CA, for Defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ANTHONY W. ISHII, SENIOR DISTRICT JUDGE

This is an employment discrimination case brought by Plaintiff Trevor Weeks ("Weeks") against his current employer, Defendant Union Pacific Railroad ("Union Pacific"). Weeks alleges causes of action for disability discrimination under 42 U.S.C. § 12112 (the Americans with Disabilities Act) ("ADA") and state law for disability discrimination under Government Code § 12940 (the California Fair Employment and Housing Act) ("FEHA"), retaliation for taking medical leave under Government Code § 12945.2 (the California Family Rights Act ("CFRA")), and retaliation under California Labor Code § 923. Union Pacific now moves for summary judgment on all claims alleged against it. For the reasons that follow, the motion will be granted in part and denied in part.

SUMMARY JUDGMENT FRAMEWORK

Summary judgment is proper 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 ; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; Fortyune v. American Multi–Cinema, Inc. , 364 F.3d 1075, 1080 (9th Cir.2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an 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) ; Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (9th Cir.2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir.2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir.2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an

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essential element of the non-moving party's claim. See James River Ins. Co. v. Herbert Schenk, P.C., 523 F.3d 915, 923 (9th Cir.2008) ; Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105–06 (9th Cir.2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Nissan Fire, 210 F.3d at 1103. The opposing party cannot " ‘rest upon the mere allegations or denials of [its] pleading’ but must instead produce evidence that ‘sets forth specific facts showing that there is a genuine issue for trial.’ " Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.2008).

The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 ; Narayan v. EGL, Inc. , 616 F.3d 895, 899 (9th Cir.2010). While a "justifiable inference" need not be the most likely or the most persuasive inference, a "justifiable inference" must still be rational or reasonable. See Narayan, 616 F.3d at 899. "If conflicting inferences may be drawn from the facts, the case must go to the jury." Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1175 (9th Cir.2003). 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 Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D.Cal.2008) ; UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D.Cal.2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir.2002) ; see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir.2002). The parties have the obligation to particularly identify material facts, and the court is not required to scour the record in search of a genuine disputed material fact. Simmons v. Navajo Cnty. , 609 F.3d 1011, 1017 (9th Cir.2010). Further, a "motion for summary judgment may not be defeated ... by evidence that is ‘merely colorable’ or ‘is not significantly probative.’ " Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 ; Hardage v. CBS Broad. Inc. , 427 F.3d 1177, 1183 (9th Cir.2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.

FACTUAL BACKGROUND¹

Union Pacific operates railroad tracks in 23 states in the western two-thirds of the country, and ships goods throughout the country on its own railroad tracks and through relationships with other shipping providers. JUMF 2. Union Pacific operates over 8,000 locomotives, and has approximately 15 to 20 trains running through its Bakersfield, California railyard/hub every day. See JUMF's 3, 4, 5. Trains travelling between Bakersfield and

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Los Angeles change crews in Bakersfield (e.g. one crew drives the train from Roseville to Bakersfield and a second crew drives the train from Bakersfield to Los Angeles). JUMF 6.

Locomotive engineers are subject to a Collective Bargaining Agreement ("CBA") negotiated between Union Pacific and the Brotherhood of Locomotive Engineers ("BLE"). See JUMF 8; DUMF 1. Part of the CBA includes the Roseville Hub Implementing Agreement (the "RHIA") with BLE.² See DUMF 6; Foley Reply Dec. ¶ 3. Union Pacific locomotive engineers who are members of the United Transportation Union are under the same CBA negotiated by the BLE. See JUMF 9. The CBA identifies four different seniority zones. See DUMF 7. The RHIA provides in part that "engineers may not move from one Zone to another except in accordance with consolidated seniority provisions which require, among other provisions, the Carrier to post a notice of intent to promote additional engineers so that engineers may request transfer to the Zone with the need for additional engineers." DUMF 8. Pursuant to this part of the RHIA, Union Pacific must post for engineer positions in zones and also must award those positions by seniority. DUMF 9. The RHIA also provides that an engineer cannot carry his seniority from one zone to another, rather he starts anew with his seniority in the new zone. DUMF 10.³ Only the BLE can allow an engineer to transfer between zones with seniority, and Union Pacific cannot transfer an engineer with seniority between zones without violating the CBA. See DUMF's 11, 12.⁴

In November 2009, Union Pacific adopted an "Agreement Intracraft Transfer Policy for Operating Craft Employees of Union Pacific Railroad" ("IT Policy"). See DUMF 13; Foley Dec. Ex. 2. An "Intracraft Transfer" is "any reassignment from one operating craft to an operating

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craft position at a different work location/seniority district that has not been agreed to under the applicable collective bargaining agreements." DUMF 14. The IT Policy explains that a transferring employee loses all of his seniority when he transfers into the new position, absent an agreement to the contrary by the BLE. See DUMF 16.

The CBA also has a Job Posting and Staffing Policy ("JPS Policy"). See Plaintiff's Ex. 1. The JPS Policy provides for the internal posting of job vacancies for "Band D and below" positions. See id. The JPS Policy explains where and when jobs vacancies will be posted, and explains that "agreement and nonagreement" Union Pacific employees may use, and are encouraged to use, the internal...