United States District Court, D. Nebraska
FRED C. ROBERTS, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant.
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge
matter is before the Court on the Motion for Summary
Judgment, ECF No. 35, filed by Defendant Union Pacific
Railroad Company. For the reasons stated below, the Motion
will be granted, in part.
Fred Roberts was a locomotive engineer for Union Pacific. On
December 22, 2013, Union Pacific assigned Roberts and Terry
Booth, a conductor, to deliver a train located in North
Platte, Nebraska, to Cheyenne, Wyoming. Before departure,
Roberts and Booth had to perform a switching maneuver where
certain cars were to be removed from the train and others
were to be added. Roberts and Booth successfully removed two
separate sets of cars from the train before attempting to add
a set of cars.
train consisted of three locomotives and several cars.
Roberts was positioned in the front locomotive controlling
the locomotives' movements and Booth was positioned
outside of the rear locomotive providing Roberts with
directions-point protection-by hand and radio. To add the set
of cars, Roberts had to reverse the locomotives in an eastern
direction into the cars with Booth's direction and
guidance. Roberts and Booth began the move using hand
signals, but when the locomotives traveled around a curve in
the tracks their line of sight was obstructed and Booth
switched to the radio. Roberts and Booth exchanged the
following radio communications as they travelled the curve:
Booth: I'll give you six cars east back to hands around
Roberts: Six. Back to hands around the curve.
. . .
Booth: Now three.
Booth: Now one. Go ahead and ease it up.
Roberts Decl., ECF No. 41-19, Page ID 416. Seconds after
Booth's last radio communication, the rear-most
locomotive collided with the first car at an excessive speed
between six and eight miles per hour, which resulted in a
“hard coupling.” Roberts Dep., ECF No. 41-1, Page
ID 337, 100:1-14. Booth jumped off the locomotive before it
collided with the train car.
to Roberts, Booth's initial communication was misleading,
and Roberts understood it to mean that after six train-car
lengths Roberts and Booth would resume using hand signals,
not that after six car lengths the rear-most locomotive would
meet the first car for coupling. Roberts believed the first
car was further down the track.
Brown, the manager of terminal operations, was working
nearby, heard the collision, and drove to the scene. When he
arrived, Brown asked Roberts if he was physically injured,
and Roberts told Brown that he was experiencing neck pain.
Brown offered to call an ambulance, but Roberts did not
believe an ambulance was necessary and declined. Brown then
told Roberts he could choose to do one of three things: (1)
finish switching the cars and go home, (2) allow a Union
Pacific nurse to examine his neck injury, which would require
no “paperwork, ” (3) or request transportation to
a hospital for an examination, which would include
“paperwork” and “repercussions.”
Roberts Statement, ECF No. 41-3, Page ID 342; Roberts Dep.,
ECF No. 41-1, Page ID 335, 91:20-92:8. Roberts requested
transportation to a hospital, and Brown agreed to take him.
Brown also called Craig Cox, the manager of operating
practices, to download the information from the event data
recorders on the locomotives, which Cox did.
their way to the hospital, Brown asked Roberts if, instead of
going to the hospital, he would agree to get evaluated by a
Union Pacific nurse. Roberts agreed to see a Union Pacific
nurse if he could choose the nurse. When Roberts learned that
the nurse he chose was not available, he asked Brown to
transport him to a hospital. Brown then took Roberts to the
Great Plains Regional Hospital emergency room in North
Platte. When they arrived in the parking lot, Roberts was on
Brown's cell phone with Jay Penner, the director of road
operations, and, according to Roberts, Penner told Roberts
that there would be “ramifications” in the form
of “paperwork” if he went to the emergency room.
Roberts Dep., ECF No. 41-1, Page ID 337, 97:19-98:3. Penner
denies that he told Roberts there would be ramifications for
going to the emergency room. Ultimately, Roberts went in to
the emergency room to have his neck examined.
investigated the cause of the incident by downloading the
event data records and the track information records from one
of the locomotives. He also obtained a recording of the radio
communications between Roberts and Booth. On December 30,
2013, Union Pacific sent Roberts and Booth Notice of
Investigation letters, which charged them with failing to
“properly control a shove movement, control speed and
conduct a proper job briefing regarding your move.” ECF
Nos. 37-7 & 37-8. Each letter identified David Howard, the
manager of operating practices, as the “Charging
Manager” and proposed discipline at level 4C.
Id. On December 30, Howard also sent Roberts and
Booth notices that their respective certifications were
revoked effective December 23, 2013, until January 22, 2014.
ECF No. 41-14; ECF No. 37-10.
Pacific held an investigation hearing on January 20, 2014.
After considering the evidence presented at the hearing, Tony
Orr, the general superintendent, sustained the charges
against Roberts and Booth and separately informed them of his
decision in letters titled Notification of Discipline
Assessed, dated January 28, 2014. ECF Nos. 37-9; 41-17.
Although Orr found that Roberts and Booth both “failed
to properly control a shove movement, control speed and
conduct a proper job briefing . . . [, ]” he found
Roberts in violation of Rule 6.5 and Rule 70.3 of Union
Pacific's General Code of Operating Rules (GCOR) but
found Booth in violation of only Rule 70.3. Id. GCOR
6.5 provides the manner in which employees must execute a
shove movement, ECF No. 41-15, and GCOR 70.3 provides the
manner in which employees are to conduct a job briefing
before executing such a movement, ECF No. 37-4, Page ID
165-66. Based on his findings, Orr assessed Roberts
discipline at level 4C and assessed Booth discipline at level
3 under the “UPGRADE Progressive Discipline
Table.” Id. As a result, Orr suspended Roberts
for sixty days and suspended Booth for five days.
Id.; ECF No. 37-10. When Orr made his decision on
January 28, 2014, both Roberts's and Booth's
certifications had been reinstated. ECF No. 41-14; ECF No.
Orr's decision, Randy Eardensohn, the director of
regional operations, separately reviewed the evidence of the
incident to determine whether Booth's certification was
correctly revoked under 49 C.F.R. § 242.403, which
provides the criteria railroad carriers may consider when
deciding whether to revoke a conductor's certification.
Eardensohn agreed with Orr's findings.
January 2014, Roberts took medical leave and never returned
to work because he was unable to pass Union Pacific's
August 25, 2017, Roberts filed the Complaint, ECF No. 1,
which asserted two separate “Claims for Relief”
against Union Pacific under the Federal Railroad Safety Act
(FRSA), 49 U.S.C. § 20101 et seq. Roberts's
First Claim for Relief alleges Union Pacific denied, delayed,
or interfered with medical treatment for his neck injury;
threatened him with discipline if he sought medical treatment
for his injury; and disciplined him more harshly than Booth
because Roberts notified Union Pacific of his injury and
sought medical treatment for that injury. Id.
¶¶ 23-28, Page ID 5; 49 U.S.C. §§
20109(a)(4) & (c). Roberts's Second Claim for Relief
alleges Union Pacific found him unfit to return to work
following his medical leave because he reported and sought
medical attention for his neck injury. Compl. ¶¶
30-35, ECF No. 1, Page ID 6. Union Pacific moved for summary
judgment on all claims arguing Roberts failed to support his
claims with sufficient evidence.
judgment is appropriate when the evidence, viewed in the
light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Garrison
v. ConAgra Foods Packaged Foods, LLC, 833 F.3d
881, 884 (8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)).
“Summary judgment is not disfavored and is designed for
every action.” Briscoe v. Cty. of St. Louis, 690
F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v.
City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011)
(en banc)). In reviewing a motion for summary judgment, the
Court will view “the record in the light most favorable
to the nonmoving party . . . drawing all reasonable
inferences in that party's favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing
Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir.
2004)). Where the nonmoving party will bear the burden of
proof at trial on a dispositive issue, “Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves.” Se. Mo.
Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). The moving party need not produce evidence
showing “the absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779
F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477
U.S. at 325). Instead, “the burden on the moving party
may be discharged by ‘showing' . . . that there is
an absence of evidence to support the nonmoving party's
case.” St. Jude Med., Inc. v. Lifecare Int'l,
Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting
Celotex, 477 U.S. at 325).
response to the moving party's showing, the nonmoving
party's burden is to produce “specific facts
sufficient to raise a genuine issue for trial.”
Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d
879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine
issue for trial.” Wagner v. Gallup, Inc., 788
F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson,
643 F.3d at 1042). “[T]here must be more than the mere
existence of some alleged factual dispute” between the