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Roberts v. Union Pacific Railroad Co.

United States District Court, D. Nebraska

March 15, 2019

FRED C. ROBERTS, Plaintiff,


          Laurie Smith Camp Senior United States District Judge

         This 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.


         Plaintiff 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.

         The 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 the curve.
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.

         According 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.

         John 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.

         On 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.

         Cox 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.

         Union 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. 37-10.

         Following 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.

         In January 2014, Roberts took medical leave and never returned to work because he was unable to pass Union Pacific's fitness-for-duty evaluation.

         On 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.[1] 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.


         “Summary 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.”[2] 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).

         In 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 ...

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