Thomas Dipley v. Union Pacific Railroad Company et al

Filing 27

MINUTES (IN CHAMBERS) by Judge S. James Otero: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO REMAND 17 No costs or attorney'sfees shall be awarded. This case shall close. Case Remanded to Riverside County Superior Court, No. RIC 1701834. MD JS-6. Case Terminated. (lc)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

DATE: April 17, 2017

CASE NO.: CV 17-00422 SJO (SPx)
TITLE:

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Thomas Dipley v. Union Pacific Railroad Co., et al.

========================================================================
PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE
Victor Paul Cruz
Courtroom Clerk

Not Present
Court Reporter

COUNSEL PRESENT FOR PLAINTIFF:

COUNSEL PRESENT FOR DEFENDANTS:

Not Present

Not Present

========================================================================
PROCEEDINGS (in chambers): ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO REMAND [Docket No. 17]
This matter is before the Court on Plaintiff Thomas Dipley's ("Dipley" or "Plaintiff") Motion to
Remand ("Motion"), filed March 29, 2017. Defendants Union Pacific Railroad Co., George Slaats,
Christopher Mengel, Robert Morrison, Robert M. Grimaila, and Joshua N. Closson (collectively,
"Defendants") filed their Opposition on April 10, 2017, to which Plaintiff replied on April 14, 2017.1
The Court found this matter suitable for disposition without oral argument and vacated the hearing
set for May 1, 2017. See Fed. R. Civ. P. 78(b). For the following reasons, the Court GRANTS IN
PART AND DENIES IN PART Plaintiff's Motion.
I.

FACTUAL AND PROCEDURAL BACKGROUND

In his Complaint, Plaintiff alleges the following. Plaintiff is and at all times was employed by
Defendant Union Pacific Railroad Co. ("Union Pacific") as a Deputy Chief in its police force in
Riverside County, California. (Defs.' Notice of Removal ("Removal"), ECF No. 1, Ex. 1 Complaint
("Compl.") ¶ 10, ECF No. 1-1.) The individual named Defendants are employees at Union Pacific
and were Plaintiff's supervisors. (Compl. ¶¶ 11-17.) Plaintiff alleges that, on or about January 29,
2014, a Union Pacific Police Department Special Agent was injured during the course of his
employment. (Compl. ¶ 18.) Although Plaintiff had no involvement in the injury, Plaintiff learned
in the fall of 2014 that his 2015 pay, stock options, and bonus would be adversely affected by the
injury. (Compl. ¶ 29.) On February 5, 2015, Plaintiff learned that he was denied any stock options
and did not receive his full annual bonus or pay raise for 2014 as a result of the injury. (Compl. ¶
31.)
On April 8, 2015, another Special Agent was allegedly injured in the course of his employment.
(Compl. ¶ 33.) Plaintiff alleges that he was ordered by his supervisors to, but refused to, participate
in Union Pacific's harassment, retaliation, and discrimination against the Special Agent for
1

The Court disregards pages 6-9 of Plaintiff's Reply because it exceeds the Court's fivepage limit for replies. (Initial Standing Order, Ex. A ¶ 24, ECF No. 10.)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

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DATE: April 17, 2017

CASE NO.: CV 17-00422 SJO (SPx)

sustaining an on-the-job injury. (Compl. ¶ 36.) On May 1, 2015, Plaintiff filed a complaint with
Union Pacific and its law enforcement agency about the proposed and actual illegal retaliatory
actions against the Special Agent. Thereafter, Defendant Thomas Mengel ("Mengel") called
Plaintiff to admonish him about his filing a whistleblower complaint. (Compl. ¶¶ 37-39, 41.) Within
days, Defendant Mengel and Defendant Robert Morrison ("Morrison") scheduled Plaintiff for
Command Center Training in Omaha, Nebraska on Plaintiff's previously-approved vacation days,
as harassment for filing the complaint. (Compl. ¶ 42.) On May 29, 2015, Plaintiff filed an online
whistleblower complaint with the U.S. Department of Labor's Occupational Safety and Health
Administration ("OSHA"), alleging that he received a negative performance evaluation in February
2015 arising out of an on-duty injury that an employee reported to him, which he reported to his
supervisors (the "Whistleblower Complaint").2 (See Compl. ¶ 41; Removal, Ex. 5 Decl. of Betsy S.
Gassaway ("Gassaway Decl."), ECF No. 1-5, Ex. A 8-10.) Defendants then set about a pattern and
practice to harass Plaintiff and put him at risk of physical harm by expanding his territory,
eliminating manpower in his territory and equipment used for police safety, including his own safety.
(Compl. ¶ 43-48.)
On January 31, 2017, Plaintiff filed his Complaint in the California Superior Court for the County of
Riverside, alleging (1) retaliation in violation of public policy (Tameny claim); (2) harassment in
violation of public policy; and (3) California Labor Code ("CLC") violations.3 (See generally Compl.)
Most of the Defendants were served with the Summons and Complaint on February 2, 2017,
February 6, 2017, and February 9, 2016. (Notice of Removal ("Removal") ¶¶ 3-6, ECF No. 1.) On
March 3, 2017, Defendants Union Pacific Railroad Co., George Slaats, Christopher Mengel and
Robert Morrison removed the action to this Court; Defendants Robert M. Grimaila and Joshua N.
Closson were not served at the time of the removal, but join in the removal. (Removal ¶¶ 7-8.)
Defendants removed the action pursuant to 28 U.S.C. section 1331, on the basis that the Federal
Railroad Safety Act, 49 U.S.C. §§ 20101, et seq. ("FRSA"), preempts the Complaint. (Removal ¶
20.) As discussed below, the Court REMANDS the action.
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II.

DISCUSSION

2

Defendants state that Plaintiff filed the Whistleblower Complaint on or around August 3,
2015. (Removal ¶ 34.) However, the record indicates that, on May 29, 2015, Plaintiff filed
an online whistleblower complaint (number ECN8567) with OSHA, which provided notice to
Union Pacific on August 3, 2015. (Gassaway Decl., Ex. A 4-8.)

3

A Tameny claim is "an exception to the at-will employment doctrine that allows
employees fired in violation of fundamental state or federal public policy to recover tort
damages from employers." Gonero v. Union Pac. R. Co., No. CV 09-02009 WBS, 2009 WL
3378987, at *7 (E.D. Cal. Oct. 19, 2009) (citing Tameny v. Atl. Richfield Co., 27 Cal. 3d 167,
172 (1980)).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

DATE: April 17, 2017

CASE NO.: CV 17-00422 SJO (SPx)

A.

Legal Standard

An action is removable to federal court only if it might have been brought there originally. See 28
U.S.C. § 1441(a). The removal statute is "strictly construe[d] . . . against removal jurisdiction."
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (internal citations omitted). "Federal
jurisdiction must be rejected if there is any doubt as to the right of removal . . . ." Id. (internal
citation omitted). "Th[is] 'strong presumption' against removal jurisdiction means that the defendant
always has the burden of establishing that removal is proper." Id. (internal citations omitted).
In determining whether a claim "aris[es] under the Constitution, laws, or treaties of the United
States" under 28 U.S.C. section 1331, the well-pleaded complaint rule "provides that federal
jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly
pleaded complaint." Fisher v. NOS Commc'ns, 495 F.3d 1052, 1057 (9th Cir. 2007) (internal
quotation marks and citations omitted). Thus, "the plaintiff is the master of his complaint and may
avoid federal jurisdiction by relying exclusively on state law." Hunter v. Philip Morris USA, 582 F.3d
1039, 1042 (9th Cir. 2009) (quotation marks and citation omitted). It is "settled law that a case may
not be removed to federal court on the basis of a federal defense, including the defense of
preemption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties
admit that the defense is the only question truly at issue in the case." Franchise Tax Bd. v. Constr.
Laborers Vacation Tr., 463 U.S. 1, 14 (1983); accord, Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075
(9th Cir. 2005).
Under the "complete preemption doctrine" exception, however, if "federal law completely preempts
a plaintiff's state-law claim . . . any claim purportedly based on that preempted state law is
considered, from its inception, a federal claim, and therefore arises under federal law." Botsford
v. Blue Cross & Blue Shield of Mont., 314 F.3d 390, 393 (9th Cir. 2002) (internal citation and
quotations omitted). In order to completely preempt state-law causes of action, the "federal law
must both: (1) conflict with state law (conflict preemption) and (2) provide remedies that displace
state[-]law remedies (displacement)." Id. (internal citations omitted).
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B.

Defendants Fail to Establish that Federal Question Jurisdiction Exists Based on
Federal Preemption

Defendants' sole basis for removal is that the FRSA completely preempts the Complaint. (Removal
¶ 20; Opp'n 3, ECF No. 24.) Specifically, Defendants argue that the FRSA's election of remedies
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

DATE: April 17, 2017

CASE NO.: CV 17-00422 SJO (SPx)

provision bars a railroad employee from seeking protection under both the FRSA "and another
provision of law for the same allegedly unlawful act of the railroad carrier." (Removal ¶ 28) (citing
49 U.S.C. § 20109(f).) Thus, Defendants argue, by virtue of Plaintiff's filing of the Whistleblower
Complaint "for the same allegedly wrongful acts that he now alleges in his instant state law case,"
federal jurisdiction is triggered. (Removal ¶¶ 20-21.) The Court disagrees.
To begin, Defendants' removal is procedurally improper. Defendants incorrectly argue that the
Complaint presents a federal question on its face because, inter alia, the retaliation claim is
completely barred by Plaintiff's Whistleblower Complaint. (Opp'n 6.) On the contrary, the
Complaint does not allege any claims arising out of federal law.4 Under the well-pleaded complaint
rule, Defendants cannot rely on a preemption defense to remove the action unless the complete
preemption exception applies. As discussed below, Defendants have not demonstrated that it
does.
Defendants fail to address, let alone prove, the necessary components for complete preemption:
that the FRSA both "conflicts with state law" and "provides a remedy that displaces state law
remedies" with respect to retaliation and harassment claims. See Sullivan v. BNSF Ry. Co., 447
F. Supp. 2d 1092, 1098 (D. Ariz. 2006) (citing Botsford, 314 F.3d at 393). Notably, Defendants
ignore the statutory language of the FRSA provision governing employee protections: "Nothing
in this section preempts or diminishes any other safeguards against discrimination, demotion,
discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner of
discrimination provided by Federal or State law." 49 U.S.C. § 20109(g) (emphases added); see
Gonero, 2009 WL 3378987, at *3 (citing 49 U.S.C. § 20109(g)) ("The FRSA no longer preempts
state law retaliation claims. Therefore, plaintiff could ordinarily pursue to finality his state common
law claims in addition to vindicating the statutory rights under the FRSA, and the election of
remedies doctrine would not bar multiple recoveries.").
In cases where the Supreme Court has found complete preemption, "the federal statute[ ] at issue
provided the exclusive cause of action for the claim asserted and also set forth procedures and
remedies governing that cause of action." Beneficial Nat'l Bank v. Anderson, et al., 539 U.S. 1, 8
(2003). However, the FRSA contains "no express or implied cause of action authorizing suit by a
private individual." Nippon Yusen Kaisha v. Union Pac. R.R. Co., No. CV 04-08861 GAF, 2005 WL
1241866, at *1 (C.D. Cal. May 10, 2005). Furthermore, that Plaintiff alleges public policies under
both the FRSA and the CLC, as well as CLC violations, (see Compl. ¶¶ 53-54, 56-57, 108-121),
suggests the absence of complete preemption. See, e.g., Campbell v. Aerospace Corp., 123 F.3d
1308, 1315 (9th Cir. 1997) (concluding that plaintiff's citation to the federal policy protecting

4

A complete preemption defense cannot form the basis of removal. Franchise Tax Bd., 463
U.S. at 14. Neither do Plaintiff's references to the FRSA and its public policy in the
Complaint trigger federal-question jurisdiction. (Compl. ¶¶ 52, 54-55.) See Easton v.
Crossland Mortg. Corp., 114 F.3d 979 (9th Cir. 1997).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

DATE: April 17, 2017

CASE NO.: CV 17-00422 SJO (SPx)

whistleblowers under the False Claims Act "does not alter the fundamental nature of his state-law
tort action" where, inter alia, "California statutory law establishes the same public policy element
as the FCA and provides an alternative state-law theory to support [plaintiff's] case").
Defendants insist that pursuant to the election of remedies provision, 49 U.S.C. section 20109(f),
the FRSA completely preempts this action. (Opp'n 4.) The provision states that an employee "may
not seek protection under both this section and another provision of law for the same allegedly
wrongful act of the railroad carrier." 49 U.S.C. § 20109(f); see Gonero, 2009 WL 3378987, at *3
("The doctrine of election of remedies precludes plaintiffs from pursuing remedies inconsistent with
a previous election or conduct . . . .") (citations omitted). "Although the FRSA permits an employee
discharged for refusal to assist in the violation of any federal law relating to railroad safety to file
a complaint with the Secretary of Labor, the Act specifically provides that it is not to be construed
'to diminish the rights, privileges, or remedies of any employee under any Federal or State
law . . . ." Ruiz v. Union Pac. R.R. Co., No. CV 09-00797 SJO, 2009 WL 650621, at *2 (C.D. Cal.
Mar. 10, 2009) (quoting 49 U.S.C. § 20109(a)) (emphasis added); see also Gonero, 2009 WL
3378987, at *5 ("[R]ailroad employees do not forfeit their rights under state law when they invoke
the protections of the FRSA."). Defendants do not show how, in spite of this clear statutory
language, the FRSA would preempt Plaintiff's state law claims. (See Opp'n 4; see Ruiz, 2009 WL
650621, at *2 ("As a result of the lack of a federal cause of action for private individuals in the
FRSA, which explicity states that it is not intended to diminish an employee's state-law rights, the
FRSA does not displace Ruiz's state-law claims.").)
Furthermore, even assuming, arguendo, that Plaintiff's Whistleblower Complaint and the instant
Complaint allege the same conduct by Defendants, and that the FRSA did displace the state-law
remedies, Defendants' argument still fails. The Whistleblower Complaint is still pending. (See
Opp'n 1; Removal ¶ 21; Gassaway Decl. ¶ 4) ("It is my understanding and belief that Thomas
Dipley's [Whistleblower Complaint] is still pending."). However, "[t]o 'elect' a remedy typically
requires more than the mere commencement of a suit: 'a plaintiff may pursue an action against an
identical defendant in several courts at the same time, even though inconsistent remedies are
sought. But . . . there can be only one recovery.' Generally, a conclusive election is made only
where the first suit is prosecuted to a judgment or some elements of estoppel are present."5

5

Contrary to Defendants' averments, (Opp'n 1, 11-12), Gonero rejected the arguments that
the mere filing of an OSHA complaint qualifies as an "election" of remedies. Id. at *5 (finding
that to find otherwise "ignores the clear intent expressed" by sections 20109(g) and (h)).
Furthermore, the Fourth and Seventh Circuit cases that Defendants cite, Lee v. Norfolk, 802
F.3d 626 (4th Cir. 2015), and Reed v. Norfolk S. Ry. Co., 740 F.3d 420 (7th Cir. 2014), are
inapposite and do not support what Defendants purport that they do–that the election of
remedies provision "completely barred the filing of multiple whistleblower claims for the
same allegedly wrongful act of the railroad, without any mention of an estoppel
requirement." (Opp'n 11) (emphasis in original). Lee held that a single suspension done
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CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

DATE: April 17, 2017

CASE NO.: CV 17-00422 SJO (SPx)

Gonero, 2009 WL 3378987, at *3 (quoting Sears, Roebuck & Co. V. Met. Engravers, Ltd., 245 F.2d
67, 69-70 (9th Cir. 1956)). "Subsections (g) and (h) do not prevent a railroad employee who has
filed a complaint with the Department of Labor from pursuing other available state remedies."
Gonero, 2009 WL 3378987, at *5 ("In this case, plainitff sought to vindicate his rights under the
FRSA through the administrative process described in § 20109(d), which went nowhere. He then
turned to the protections of California common law in this action.") In sum, Defendants fail to
establish that the election of remedies provision bars Plaintiff's claims.
Finally, in their Removal, Defendants argue that the Court has jurisdiction "over OSHA claims that
have exceeded 210 days." (Removal ¶ 41.) This conclusion is meritless. Generally, if OSHA does
not issue a final decision within 210 days after the filing of the whistleblower complaint, "the
employee may bring an original action at law or equity for de novo review in the appropriate district
court of the United States, which shall have jurisdiction over such an action without regard to the
amount in controversy . . . ." See 49 U.S.C. § 20109(d)(3). Plaintiff did not elect to do so. In sum,
because Defendants do not demonstrate that complete preemption applies, and raise no other
grounds for removal, the Court lacks subject matter jurisdiction and must remand the action.6
Finally, the Court DENIES Plaintiff's request for costs and attorney's fees under 28 U.S.C. section
1447(c). (Mot. 5.)
///
III.

RULING

For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion,
and REMANDS the action to the Superior Court for the County of Riverside. No costs or attorney's
fees shall be awarded. This case shall close.
IT IS SO ORDERED.

for two allegedly different reasons amounted to two separate unlawful acts under FRSA
under the election of remedies provision, see 802 F.3d at 628; Reed court held that "[t]he
election-of-remedies provision only bars railroad employees from seeking duplicative relief
under overlapping antiretaliation or whistleblower statutes . . . ." 740 F.3d at 426. Again,
Defendants do not demonstrate that the CLC and FRSA are "overlapping" statutes.
6

Defendants do not argue that the Court has diversity jurisdiction. It appears that there is
a lack of complete diversity between the parties. (See generally Compl.)

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