Weeks v. Union Pacific Railroad Company

Filing 116

ORDER on Plaintiff's 98 Motion for Reconsideration - A Telephonic Status Conference set for 5/22/2017 at 11:00 AM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii, signed by District Judge Anthony W. Ishii on 5/3/2017. (Kusamura, W)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 TREVOR WEEKS, 9 10 11 CASE NO. 1:13-CV-1641 AWI JLT Plaintiff ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION v. UNION PACIFIC RAILROAD CO., (Doc. No. 98) 12 Defendant 13 14 This is an employment discrimination case based on disability brought by Plaintiff Trevor 15 Weeks (“Weeks”) against his former employer, Union Pacific Railroad (“UP”). Weeks now 16 moves for reconsideration of the Magistrate Judge’s February 22, 2017 order denying leave to 17 amend the complaint (“the Order”). See Doc. Nos. 97, 98. For the reasons that follow, Weeks’s 18 motion will be granted in part and denied in part. 19 20 21 22 23 BACKGROUND On April 21, 2014, the time to file an amended complaint per the scheduling order expired. See Doc. No. 11. On March 2, 2015, UP filed a motion for summary judgment. After the summary 24 judgment motion was filed, UP issued Weeks a Notice of Discipline in March 2015 (“March 25 NOD”) for excessive absences. 26 27 28 On April 20, 2015, Weeks filed an untimely opposition to summary judgment that identifies the March NOD as an adverse employment action. See Doc. No. 33. On May 6, 2015, UP’s reply was filed. See Doc. No. 34. The reply argued inter alia that 1 the Court cannot consider the March NOD because it occurred after UP filed its summary 2 judgment motion. See id. 3 In August 2015, the Court received notice that Plaintiff’s counsel (William J. Smith) had 4 died. See Doc. Nos. 40, 41. Attorney Kay Parker was substituted as counsel. See Doc. No. 42. On October 7, 2015, the Court issued a ruling on UP’s summary judgment motion. See 5 6 Doc. No. 43. The Court found genuine disputed issues with respect to: an ADA claim for failure 7 to provide reasonable accommodation, a FEHA claim for failure to provide reasonable 8 accommodation, and a FEHA claim for failure to engage in an interactive process. See id. The 9 Court granted summary judgment on the FEHA and ADA claims for disability discrimination 10 because no adverse employment actions had been demonstrated. See id. The Court held that 11 reliance on the March NOD postdated the summary judgment motion and was not fairly described 12 in the complaint. See id. Although the Court could allow amendment, there was not enough 13 information provided about the March NOD, and the Court disallowed amendment at that time. 14 See id. The Court also granted summary judgment on Weeks’s California medical leave act claim, 15 Labor Code § 923 claim, FEHA retaliation claim, and punitive damages because Weeks stated in 16 his opposition that he did not oppose summary judgment on those matters.1 See id. Finally, the 17 Court permitted the parties to file additional motions if they thought that they had a good faith 18 basis for doing so. See id. Specifically, the Court established mechanisms for UP to file a second 19 summary judgment motion and for Weeks to file a motion to amend with the Magistrate Judge. 20 See id. 21 22 On October 21, 2015, Defendants filed a request to file a second summary judgment motion. See Doc. No. 44. The Court ordered the parties to meet and confer. See Doc. No. 46. 23 In mid-November 2015, there was a dispute regarding the advisability of a second 24 summary judgment. See Doc. No. 48. Weeks stated that his evidence regarding the March NOD 25 and a transfer of two junior employees to a location that would have accommodated Weeks were 26 sufficient to defeat summary judgment. See id. Weeks stated that a proposed first amended 27 1 28 Of note, Defendants’ had argued that there was no evidence that a managing agent was involved in any of the acts complained of (for purposes of California law), and that there was no evidence of “malice, fraud, or oppression” (for purposes of federal law). See Doc. No. 25 at pp. 16-17. 2 1 complaint had been presented to UP and that his request to file a first amended complaint which 2 addressed the March NOD and the transfer of two employees should be granted either through 3 stipulation or court order. See id. Weeks stated that the parties agreed to continue to meet and 4 confer. See id. 5 On November 18, 2015, the Court issued a clarifying order that explained what claims 6 were at issue. See Doc. No. 49. The Court explained that the claims at issue were those that 7 remained in the Complaint, and claims based on the March NOD were not in the Complaint. See 8 id. The Court ordered the parties to meet and confer on a summary judgment motion that did not 9 include claims based on the March NOD. See id. The Court also noted that Weeks had circulated 10 a proposed amended complaint to UP’s counsel and also stated that the amended complaint (if it 11 was filed) would not affect UP’s second summary judgment motion unless it omitted certain 12 claims. See id. The Court ordered the parties to meet and confer regarding both the second 13 summary judgment and the amended complaint and set a briefing schedule. Id. 14 15 After being granted a one week extension of time, UP filed a second summary judgment motion on January 11, 2016. See Doc. No. 54. 16 17 On January 14, 2016, Weeks filed a first amended complaint that included allegations related to the March NOD and the transfers of the two junior employees. See Doc. No. 55. 18 19 On January 25, 2016, Weeks filed a motion to amend the original complaint. See Doc. No. 56. 20 On February 25, 2016, the Magistrate Judge denied the motion to amend and struck the 21 amended complaint. See Doc. No. 68. For purposes of Rule 16, the Magistrate Judge found a 22 lack of diligence by Weeks because nearly eleven months had passed from March 2015 to January 23 2016, and Weeks had waited two months after the first summary judgment motion had been 24 decided. See id. For purposes of Rule 15, the Magistrate Judge found undue delay and that the 25 proposed amended complaint did not include new causes of action or legal theories, rather the 26 amendments merely added factual support.2 See id. The Magistrate Judge found that Weeks 27 2 28 The Magistrate Judge also explained that, as demonstrated by Paragraphs 16 and 21 of the original Complaint, Weeks had alleged that since 2005 to the present, UP “engaged in unlawful employment practices, including discrimination on the basis of disability.” Doc. No. 68. 3 1 would not be precluded from asserting the March NOD in support of being threatened with 2 discipline, and he could use the transfer of the other two employees to support existing claims. 3 See id. Finally, the Magistrate Judge found prejudice because the proceedings would be 4 prolonged and additional discovery would be needed. See id. 5 On April 21, 2016, the Court denied the second motion for summary judgment in its 6 entirety. See Doc. No. 71. In doing so, the Court relied in part on declarations that had been 7 submitted in connection with the motion to amend. See id. The Court relied on the transfers of 8 the junior employees to show that a transfer was a possible accommodation, and on the March 9 NOD to show that UP may not have been providing medical leave as a good faith accommodation. 10 See id. Under the “Further Proceedings” section, the Court reopened discovery for several 11 reasons: (1) prior counsel’s medical condition affected his ability to prosecute the case; (2) 12 significant events occurred around March 2015, well after the close of discovery (the March NOD 13 and the transfers were mentioned); and (3) the new evidence raised questions regarding transfers. 14 Thus, the parties were “permitted to conduct discovery regarding transfers, seniority, and any 15 other issues relevant to Weeks’s remaining claims, including the events of March 2015.” Id. 16 On May 19, 2016, a new scheduling order was entered. See Doc. No. 76. Non-expert 17 discovery was to close on October 3, 2016. See id. No new deadline for filing an amended 18 complaint was included in the scheduling order. See id. 19 20 On September 18, 2016, a stipulation to extend the discovery deadline was filed. See Doc. No. 77. 21 On September 20, 2016, the stipulation was rejected. See Doc. No. 78. 22 On December 29, 2016, Weeks filed a motion for an extension of time to file dispositive 23 and non-dispositive motions. See Doc. No. 82.3 24 25 On December 30, 2016, Weeks filed a second motion to amend the complaint. See Doc. No. 83. 26 On January 19, 2017, Weeks filed an amended memorandum regarding the motion to 27 amend the complaint. See Doc. No. 87. Weeks sought to include allegations regarding the March 28 3 This motion was denied on January 13, 2017. See Doc. No. 85. 4 1 NOD and the transfers of the junior employees. See Doc. No. 87-3. Weeks also included 2 allegations that UP allowed his engineering license to expire on January 9, 2017. See id. Weeks’s 3 proposed amended complaint attempts to add disparate treatment, retaliation, and wrongful 4 termination claims, as well as a request for punitive damages. See id. On February 22, 2017, the Order was issued denying Weeks’s motion to amend. See Doc. 5 6 No. 97. In terms of Rule 16, the Order concluded that the original scheduling order’s “amended 7 pleading deadline” remained in place. See id. A lack of diligence was again found with respect to 8 the events of March 2015, but diligence was found with respect to the events surrounding the 9 expiration of Weeks’s locomotive certification around January 2017. See id. Because there was 10 sufficient diligence for purposes of Rule 16, the Order analyzed whether amendment to include 11 additional claims was appropriate under Rule 15. See id. In terms of Rule 15, there was undue 12 delay regarding the events of March 2015, but no delay regarding the locomotive certification. 13 See id. The Order found that inclusion of claims related to the locomotive certification would be 14 futile because the Federal Railroad Administration (“FRA”) has an administrative scheme 15 (pursuant to the Federal Railway Safety Act (“FRSA”)) that must be followed with respect to 16 locomotive licenses, and Weeks has not filed a claim with the FRA. See id. The Order also found 17 that an assertion that Weeks was discharged based on his disability is merely evidence of his 18 damages arising under the ADA and is not a separate claim; Weeks has always claimed that UP 19 prohibited his return to work, either with or without a certification, by failing to accommodate his 20 condition. See id. Finally, the Order found prejudice because the Ninth Circuit has upheld a 21 finding of prejudice when a motion to amend was filed on the eve of trial and the additional 22 discovery would have caused a delay in the trial. See id. Because discovery would have to be 23 reopened, UP would be prejudiced. See id. The Order concluded by denying Weeks’s motion 24 through citation to Rule 15(a)(2) and Swanson v. United States Forest Serv., 87 F.3d 339, 343 (9th 25 Cir. 1996) (a case that inter alia discussed amendment of complaints and the Foman factors).4 26 27 28 On March 9, 2017, Weeks filed this motion for reconsideration. Following receipt of an 4 Foman v. Davis, 371 U.S. 178, 182 (1962). The Foman factors are considered in connection with Rule 15 motions. See C.F. v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985 n.5 (9th Cir. 2011); Ledsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). 5 1 opposition, and reply, a hearing was held on April 10, 2017. Supplemental briefing regarding the 2 FRSA was ordered at the hearing and has now been received. 3 On May 1, 2017, trial in this matter was vacated due to conflicting trial schedules 4 involving the re-trial of an older case before District Judge Drozd and the pendency of the motion 5 to amend. See Doc. No. 115. 6 WEEKS’S MOTION 7 8 Weeks’s Argument 9 In his memorandum in support of reconsideration, Weeks argues that there was no undue 10 delay regarding the events of March 2015. Weeks alerted the court to those events in April 2015, 11 UP responded to it in the reply, and Weeks did nothing further because the motion for summary 12 judgment was under submission. Weeks also argues that there was no delay in raising the 13 certification claim, and no prejudice to UP. UP had all of the power and authority over the 14 license, and knowingly failed to include Weeks in the necessary testing, that it had been doing all 15 the years that Weeks was an engineer. 16 Weeks argues that the FRA regulations do not apply to his claims. His claims are for 17 discrimination under the ADA and FEHA, and he is not challenging an improper testing procedure 18 or a failure to certify. Weeks brought this matter to the attention of the EEOC and received a right 19 to sue letter. All administrative procedures for this claim have been exhausted. 20 21 22 Weeks also argues that there is no prejudice to UP. UP’s own misconduct occurred on the eve of trial, which necessitates discovery on the eve of trial. Additionally, Kay Parker submitted two declarations. In pertinent part, Parker’s first 23 declaration states: (1) she did not think it was appropriate to file a motion for leave to amend the 24 compliant while the summary judgment motion, which included arguments from both sides 25 regarding the March NOD, was under submission; (2) she obtained right to sue letters from EEOC 26 and DFEH regarding the events of March 2015; (3) she met and conferred with defense counsel 27 regarding a second summary judgment motion and an amended complaint; (4) UP was not 28 cooperative after discovery was re-opened; (5) she learned in January 2017 that UP did not notify 6 1 Weeks of the dates and locations for the locomotive engineer tests, as it usually had done, and that 2 his license expired; (6) allowing Weeks’s license to expire, after UP stopped paying him, 3 providing insurance, and providing retirement credits, was sending a message that Weeks was 4 fired; and (7) the latest right to sue letter from EEOC is for retaliatory constructive discharge. 5 Parker’s second declaration explains the problems and errors she encountered while trying to file 6 her motion for reconsideration on March 8 (which was filed on March 9), explains that she 7 contacted the Court and IT about the problem, and that IT was troubleshooting the problem. 8 9 In reply, Weeks states the UP does not cite any authority that shows that the FRA has exclusive jurisdiction over the retaliation claims identified in the EEOC’s right to sue letter. 10 Further, UP does not deny that it failed to inform Weeks of the date and time or the location of the 11 testing for renewal of his locomotive engineer’s certification, as it had always done before Weeks 12 filed an EEOC charge and this lawsuit. 13 Finally, as part of supplemental briefing, Weeks requests inter alia that the court examine 14 the punitive damages issue. It is unknown why prior counsel (who was ill) did not oppose 15 summary judgment. UP has a corporate culture of vindictive retaliation, and UP’s employees 16 have made contradictory and inconsistent statements. Weeks states that he has found case law 17 granting punitive damages “where no higher level officer of the corporation was identifiable.” 18 UP’s Opposition 19 UP argues that the Order appropriately denied amendment and should be affirmed. First, 20 Weeks’s motion was due on March 8, 2017, but it was filed on March 9, 2017. For this reason 21 alone, reconsideration should be denied. Second, Weeks does not address “good cause” under 22 Rule 16, rather he only challenges the Rule 15 analysis. Weeks has presented no new information 23 that has not already been considered and rejected in the previous attempt to bring claims based on 24 the March NOD. Third, Weeks expressly abandoned his punitive damages claim in his opposition 25 to summary judgment. Finally, pursuant to Peters v. Union Pac. R.R., 80 F.3d 257 (8th Cir. 26 1999), the Magistrate Judge correctly concluded that, if a locomotive engineer has been denied 27 certification, denied recertification, or had his license revoked, the engineer must petition the 28 FRA. Because Weeks failed to do so, he cannot maintain his wrongful termination claim. Also, 7 1 the order denying leave to amend correctly noted that an assertion that Weeks was discharged 2 based upon his disability is merely evidence of his damages arising under the ADA, and Weeks 3 has always claimed that UP prohibited him from returning to work by failing to accommodate his 4 disability. 5 In reply, UP argues that additional reasons support denying reconsideration with respect to 6 Weeks’s certification. First, Weeks’s employment status has not changed and, assuming he 7 satisfies certification requirements, Weeks would be recertified to return to work. Second, Weeks 8 has maintained that UP refuses to accommodate his disability and refuses to return him to work. 9 The fact that he has now lost his license adds nothing to the analysis because without a route that 10 accommodated his condition, he could not return to work even with a license. Third, calling the 11 allegations “wrongful termination” does not add anything to the analysis. Fourth, Weeks has not 12 alleged facts that describe how expiration of the certification is a retaliatory action, nor has he 13 linked the act to protected activity. 14 In supplemental briefing, UP argues that Weeks is creating a shifting target. While his 15 EEOC charge and the proposed amended complaint contend that UP allowed Weeks’s certification 16 to expire, Weeks argues in his briefing that UP did not tell him about meetings for recertification. 17 UP also argues that Weeks cannot establish a constructive discharge. To recover for constructive 18 discharge, an employee’s resignation must be coerced and not caused by an employee’s voluntary 19 action that is beyond the employer’s reasonable control. Because UP had no way of compelling 20 Weeks to undergo various certification procedures and exams, the lapse of the license was beyond 21 UP’s control. 22 Legal Standard 23 a. 24 A district court may refer pretrial issues to a magistrate judge under 28 U.S.C. ' 636(b)(1). Review of Magistrate Judge’s Order 25 See Bhan v.NME Hosp., Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). If a party objects to a non- 26 dispositive pretrial ruling by a magistrate judge, the district court will review or reconsider the 27 ruling under the “clearly erroneous or contrary to law” standard. 28 U.S.C. § 626(b)(1)(A); Fed. 28 R. Civ. P. 72(a); Grimes v. City of San Francisco, 951 F.2d 236, 240-41 (9th Cir. 1991). A 8 1 magistrate judge’s factual findings or discretionary decisions are “clearly erroneous” when the 2 district court is left with the definite and firm conviction that a mistake has been committed. 3 Security Farms v. International Bhd. of Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997); McAdam 4 v. State Nat’l Ins. Co., 15 F.Supp.3d 1009, 1013 (S.D. Cal. 2014); Avalos v. Foster Poultry Farms, 5 798 F.Supp.2d 1156, 1160 (E.D. Cal. 2011). This standard is significantly deferential. Avalos, 6 798 F.Supp.2d at 1160. The district court “may not simply substitute its judgment for that of the 7 deciding court.” Grimes, 951 F.2d at 241; Avalos, 798 F.Supp.2d at 1160. The “contrary to law” 8 standard, however, allows independent plenary review of purely legal determinations by the 9 magistrate judge. See Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3rd Cir.1992); Avalos, 798 10 F.Supp.2d at 1160; Jadwin v. County of Kern, 767 F.Supp.2d 1069, 1110-11 (E.D. Cal. 2011). 11 “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or 12 rules of procedure.” Avalos, 798 F.Supp.2d at 1160; Jadwin, 767 F.Supp.2d at 1011. Rule 15 – Amendments to Pleadings5 13 b. 14 Rule 15(a)(2) instructs courts to “freely give leave [to amend] when justice so requires.” 15 Fed. R. Civ. Pro. 15(a)(2); C.F. v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985 (9th Cir. 16 2011); Zucco Partners, LLC v. Digimarc Ltd., 552 F.3d 981, 1007 (9th Cir. 2009). “This policy is 17 to be applied with extreme liberality.” C.F., 654 F.3d at 985; Eminence Capital, LLC v. Aspeon, 18 Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). “This liberality in granting leave to amend is not 19 dependent on whether the amendment will add causes of action or parties.” DCD Programs, Ltd. 20 v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). However, a court may deny leave to amend “due 21 to undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 22 5 23 24 25 26 27 28 As noted above, there is a scheduling order in this case, and at the time of Weeks’s motions to amend, the deadline for filing amended pleadings had passed. Under these circumstances, there is a two-step process for determining whether to allow an amended complaint. First, the moving party must demonstrate “good cause” under Rule 16(b)(4) to amend the scheduling order. See Mentor Graphics Corp. v. EVE-USA, Inc., 13 F.Supp.3d 1116, 1121 (D. Or. 2014); Jackson v. Laureate, Inc., 186 F.R.D. 605, 606-07 (E.D. Cal. 1999); Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D. N.C. 1987); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) (citing Forstmann with approval). Second, if “good cause” under Rule 16(b)(4) is demonstrated, the moving party must then show that an amended complaint is proper under the standards of Rule 15. See Mentor Graphics, 13 F.Supp.3d at 1121; Jackson, 186 F.R.D. at 606-07; Forstmann, 114 F.R.D. at 85; see also Johnson, 975 F.2d at 608. Here, the Magistrate Judge found sufficient grounds to meet the Rule 16(b)(4) “good cause” standard through the events surrounding the January 2017 lapse of certification. No party challenges the finding that “good cause” has been sufficiently shown. Therefore, the Court accepts that finding and will focus on whether the proposed amended complaint meets the standards of Rule 15. 9 1 deficiencies by amendments previously allowed, undue prejudice to the opposing party . . ., and 2 futility of amendment.” Zucco, 552 F.3d at 1007; Leadsinger, Inc. v. BMG Music Publ=g, 512 3 F.3d 522, 532 (9th Cir. 2008). These considerations are not given equal weight, and delay by 4 itself is insufficient to deny leave to amend. DCD Programs, 833 F.2d at 186. Prejudice to the 5 defendant is the most important factor, but amendment may be denied upon a sufficiently strong 6 showing of other factors. See Eminence Capital, 316 F.3d at 1052. “Absent prejudice, or a strong 7 showing on any of the remaining [considerations], there exists a presumption under Rule 15(a) in 8 favor of granting leave to amend.” C.F., 654 F.3d at 985. 9 Discussion Timeliness of Plaintiff’s Motion 10 a. 11 Pursuant to Local Rule 303(b), a party has fourteen days in which to seek reconsideration 12 with the District Judge of a Magistrate Judge’s order. UP is correct that Weeks filed his motion 13 one day late, on March 9, 2017. However, Parker’s second declaration explains that she is 14 familiar with the Court’s CM/ECF e-filing system, she has used it regularly, and filing a document 15 is usually a 5 to 7 minute endeavor. See Doc. No. 99. On the night of March 8, 2017, while 16 uploading the motion for reconsideration, Parker received a message that stated, “System Error: 17 Unable to Complete Docketing.” Id. She tried several times to file the motion, but was unable to 18 do so. See id. On March 9, 2017, Parker declares that she notified the Court and the IT 19 Department of the problem, and the IT Department began looking into to the matter and 20 attempting to troubleshoot. See id. However, because of the technical problems, Parker declares 21 that she was effectively blocked out of the ECF System on March 8. See id. 22 The Court is satisfied that Parker is familiar with the Court’s ECF System, has used the 23 system without difficulty in the past, but experienced a technological failure. In light of Parker’s 24 declaration, including her efforts to notify the Court and the IT Department of the problem, the 25 Court is satisfied that the deadline to file the motion for reconsideration should be extended by one 26 day. Therefore, the Court will consider Weeks’s motion for reconsideration on the merits. 27 b. 28 It is necessary to determine what precisely Weeks is attempting to allege. In supplemental Claims Relating To The Lapse of Certification In January 2017 10 1 briefing, UP contends that Weeks is claiming that he was improperly denied recertification. See 2 Doc. No. 108 at 8:15-16. In the proposed amended complaint, Weeks alleged that Union Pacific 3 allowed his locomotive certification to expire. See Doc. No. 87-3 at ¶ 26. Under Count 4 of 4 Claims 1 and 2, which is entitled “wrongful termination,” Weeks alleges that UP “allowed his 5 certification to expire, thereby rendering Plaintiff ineligible to work as a locomotive engineer 6 driving trains. For 18 years, [UP] had been providing necessary employer information to keep 7 Plaintiff’s locomotive engineers license current and valid – until January 2017.” Id. at ¶¶ 48, 60. 8 At the hearing on this motion, Weeks’s counsel clarified the Count 4 allegations. Counsel stated 9 that UP did not notify Weeks of the time, place, and location for him to renew his license/attend 10 meets regarding continuing education and renewal, even though UP had done so for over 18 11 years. In supplemental briefing, Weeks again points to the failure of UP to notify him of the date, 12 time, and location of the meeting of locomotive engineers who were getting their licenses 13 renewed. See Doc. No. 109 at 4:23-24. Weeks states that the “issue raised in the proposed first 14 amended complaint related to the expiration of Weeks’s locomotive engineer’s license is not 15 ‘whether [UP] would have wrongfully failed to certify Weeks if it had notified him of the date, 16 time, and location of the license renewal meeting,’ but rather ‘what was the reason why [UP] 17 failed to notify Weeks of the date, time, and location of the renewal meeting?” Id. at 5:18-23 18 (emphasis in original). Given the proposed complaint’s allegations and the representations in the 19 supplemental briefing and at the hearing, the Court construes Weeks’s claims under Count 4 as 20 being based on UP’s failure to notify him of what the Court will term “renewal meetings,” despite 21 having done so for 18 years. That is, the “adverse employment action” is not the decision to deny 22 recertification, the adverse employment action is the failure to provide the customary notification 23 of “renewal meetings.” With this understanding, the Court will consider whether amendment to 24 include claims based on a failure to provide customary notification is appropriate. 25 (1) Preemption by the Federal Railroad Safety Act 26 The FRSA (49 U.S.C. § 20100 et seq.) was enacted “to reduce railroad-related accidents 27 and deaths and to improve rail safety more generally.” Southern Pac. Transp. Co. v. Public Util. 28 Comm’n, 9 F.3d 807, 812 (9th Cir. 1993). Pursuant to the FRSA, the FRA has issued 11 1 administrative rules regarding inter alia the training and certification of locomotive engineers. 2 See 49 C.F.R. Part 240; Carpenter v. Mineta, 432 F.3d 1029, 1031 (9th Cir. 2005). As a means of 3 promoting railway safety, FRA regulations seek to ensure “that locomotives are only operated by 4 qualified and safe engineers.” Carpenter, 432 F.3d at 1031. “The FRA does not actively 5 participate in engineer testing or certification, but administers the regulation through approval and 6 monitoring of individual railroads’ programs, including their training and testing regimens.” Id. 7 The “regulations were not designed to affect the relationships between railway companies and 8 their labor force.” Id. The FRA has a dispute resolution process “in which a person denied 9 engineer certification may obtain a fresh determination by the FRA of whether the railroad’s 10 decision was correct.” Id. “Any person who has been denied certification, denied recertification, 11 or has had his or her certification revoked and believes that a railroad incorrectly determined that 12 he or she failed to meet the qualification requirements of this regulation when making the decision 13 to deny or revoke certification, may petition the [FRA] to review the railroad’s decision.” 49 14 C.F.R. 240.401(a). Additionally, the FRSA has an express preemption clause. See 49 U.S.C. § 15 20106. With exceptions not applicable here, see 49 U.S.C. § 20106(b), state laws (including 16 common laws), regulations, or orders relating to railroad safety are preempted by federal 17 administrative regulations or orders “covering the subject matter of the State requirement.” 49 18 U.S.C. § 20106(a); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). The state 19 requirement must do more than “touch upon” or “relate to” to the FRSA/an FRA regulation 20 because the term “covering is a more restrictive term which indicates that preemption will lie only 21 if the federal regulations substantially subsume the subject matter of the relevant state law.” CSX 22 Transp., 507 U.S. at 664; Southern Pac. Transp. Co. v. Public Util. Comm’n, 9 F.3d 807, 812 (9th 23 Cir. 1993). Stated differently, a state requirement “covers the same subject matter” of the 24 FRSA/an FRA regulation if the state requirement “addresses the same safety concern as the FRA 25 regulation.” Burlington N. R.R. Co. v. Montana, 880 F.2d 1104, 1105 (9th Cir. 1989); Prentice v. 26 Amtrak, 2014 U.S. Dist. LEXIS 108585, ; see also Burlington N. & Santa Fe R.R. Co. v. Doyle, 27 186 F.3d 790, 796 (7th Cir. 1999) (quoting Montana). 28 As discussed above, Weeks is contending that he was retaliated against because UP, 12 1 contrary to its 18 year practice, failed to notify him of the certification renewal meetings and that 2 this conduct violated the ADA and FEHA. Weeks is not complaining about UP’s decision to deny 3 recertification, he is not complaining about any training methodology or testing criteria, and he is 4 not attempting to obtain his license. That is, Weeks is not contending that UP “incorrectly 5 determined that he . . . failed to meet the qualification requirements . . .” for recertification, 49 6 C.F.R. 240.401(a), nor is he seeking to “obtain a fresh determination by the FRA of whether [UP’s 7 recertification] decision was correct.” Carpenter, 432 F.3d at 1031. The claims, as clarified by 8 Weeks, do not fit within the express language of the FRA’s dispute resolution regulations. See id. 9 Further, the subject matter of the FEHA and the ADA is discrimination. Glow v. Union 10 Pac. R.R. Co., 652 F. Supp. 2d 1135, 1145-46 (E.D. Cal. 2009). As relevant here, the subject 11 matter of the FRSA and 49 C.F.R. Part 240 is the criteria for ensuring that safe and qualified 12 individuals operate locomotives. See 49 U.S.C. §§ 20101(a), 20135; 49 C.F.R. § 240.1; 13 Carpenter, 432 F.3d at 1031. The ADA and FEHA are not safety statutes or regulations. The 14 FRSA and the ADA/FEHA address different subject matters entirely. Cf. Glow, 652 F.Supp.2d at 15 1145-46 (finding a FEHA reasonable accommodation claim was not preempted by inter alia the 16 FRSA). Weeks is not attempting to challenge the substance of UP’s certification program or the 17 actual decision to deny recertification. Weeks’s claim is that UP took retaliatory steps against him 18 so that he would not be aware of the meetings that were done in preparation for recertification. 19 This claim does not encompass any safety or competency standards. Neither the decision to deny 20 recertification nor safety considerations regarding a person’s qualifications to operate a 21 locomotive is directly implicated by Weeks’s claims. At most, Weeks’s claims may “touch on” 49 22 C.F.R. Part 240, which is not sufficient for preemption. See CSX Transp., 507 U.S. at 664; 23 Southern Pac., 9 F.3d at 812. 24 UP relies heavily on a case from the Eighth Circuit, Peters v. Union Pacific R.R., 80 F.3d 25 257 (8th Cir. 1996), to argue that Weeks’s Count 4 claims are preempted. In that case, Peters was 26 a locomotive engineer who had his certification suspended for one month due to various 27 operational infractions. See Peters, 80 F.3d at 259. The suspension was in accordance with FRA 28 regulations. See id. Peters was also discharged. See id. After union involvement and 13 1 negotiations, Peters was reinstated six months after discharge and was reissued his certification 2 card. See id. at 259-60. Peters brought suit against the railroad and alleged a state law claim for 3 conversion of his certification card for the six months between the lapse of his suspension and his 4 reinstatement. See id. The Eighth Circuit found that the conversion claim was preempted by the 5 FRSA. See id. at 262. The conversion claim depended upon Peters’s entitlement to the 6 certification card, and nothing in the regulations established an automatic recertification following 7 a suspension or ineligibility period. See id. The Eighth Circuit held that the conversion claim was 8 “necessarily a challenge to Union Pacific’s certification decision, it follows that the claim comes 9 within the scope of the FRSA regulations and is preempted.” Id. In this case, however, Weeks is 10 not challenging a certification decision and his claims are not premised on an entitlement to a 11 certification card. Weeks is claiming that UP retaliated against him by not informing him of 12 renewal meetings for the first time in 18 years. The nature of Weeks’s claims is fundamentally 13 different from the conversion claim advanced in Peters. Therefore, Peters does not apply. In sum, the Court concludes that Weeks’s claims are not “preempted” by the FRSA.6 14 15 (2) Relevance Beyond Damages The Court does not agree that the failure to inform Weeks of “renewal meetings” would 16 17 only be relevant to damages. There currently are no retaliation claims in this case. Based on the 18 representations made to the Court, breaking with an 18 year old practice of informing engineers of 19 “renewal meetings” appears to be an “adverse employment action.” As an “adverse employment 20 action,” it could satisfy a critical element of retaliation claims under the ADA and FEHA. See 21 Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 863 n.16 (9th Cir. 2016); Moore v. Regents of 22 the Univ. of Cal., 248 Cal.App.4th 216, 244-45 (2016); Ninth Circuit Model Jury Instruction 23 (Civil) 12.9; Judicial Council of Cal., Jury Instructions (Civil) § 2505 (Fall 2016 ed.). Since the 24 failure to inform of renewal meetings could meet a key element of separate causes of action, such 25 conduct has significance beyond being additional factual support to existing claims. 26 27 28 6 Technically, the FRSA does not “preempt” the ADA because the preemption doctrine “is inapplicable to a potential conflict between two federal statutes.” Tufariello v. Long Island R.R., 458 F.3d 80, 85 (2d Cir. 2006). Further, the preemption provision of the FRSA expressly addresses only “state law.” 49 U.S.C. § 20106. 14 1 2 (4) Prejudice To UP There has been an insufficient showing of prejudice for purposes of Rule 15. Importantly, 3 UP’s conduct is recent and it is UP’s conduct that forms the basis for adding additional claims. 4 Moreover, the Court has vacated the trial in this matter primarily due to conflicting trial schedules. 5 While there will be a delay in the trial, it will not primarily be because of an amended complaint. 6 7 (5) Conclusion After conducting an independent plenary review and accepting clarification from Weeks, 8 the Court respectfully concludes that the findings of preemption and prejudice are a misapplication 9 of law and thus, are contrary to law. See Avalos, 798 F.Supp.2d at 1160. Weeks’s claims based 10 on a failure to inform of renewal meetings are not preempted by the FRSA. Further, because the 11 information presented at this time indicates that the failure to inform constitutes an “adverse 12 employment action,” the allegations are relevant beyond supplying additional factual support for 13 existing claims. Since amendment would not be futile and there is insufficient prejudice to UP, 14 Weeks will be permitted to file an amended complaint that includes ADA and FEHA retaliation 15 claims based on the failure to inform of renewal meetings. 16 17 18 c. Claims Based On The Events of March 2015 (1) Prejudice To UP As indicated above, the events of March 2015 (i.e. the March NOD and the transfer of 19 junior employees to a position that would have accommodated Weeks) were first raised by Weeks 20 in April 2015 as part of his opposition to summary judgment, and UP acknowledged the March 21 NOD in its reply memorandum. In January 2016, in his first proposed amended complaint, Weeks 22 included language that the March NOD disqualified Weeks for the two open positions that were 23 filled by the junior employees. See Doc. No. 55 at ¶¶ 27-30. When the first motion to amend was 24 denied, the Magistrate Judge stated that the events of March 2015 could be used to support 25 existing claims. In April 2016, the Court’s second summary judgment order discussed the March 26 NOD and the transfers of the junior employees, and then reopened discovery in part so that the 27 events of March 2015 could be explored. See Doc. No. 71 at 19. 28 This sequence of events shows that there are no surprises with the respect to the events of 15 1 March 2015. The events have been known and raised in this Court in some from since April 2015. 2 Moreover, discovery was specifically opened so that the events of March 2015 could be explored. 3 At oral argument, Weeks’s counsel indicated that discovery did occur, primarily in the form of 4 depositions. Defense counsel did not contradict this assertion. Defense counsel also did not state 5 that UP did not conduct discovery regarding the events of March 2015 or, importantly, that UP did 6 not have the opportunity to conduct discovery regarding the events of March 2015. Further, when 7 asked at the hearing if UP wished to elaborate on any prejudice and the events of March 2015, UP 8 did not identify any actual prejudice to it that would stem from including claims based on the 9 events of March 2015. Finally, the trial date in this matter has been vacated, and the vacation is 10 11 12 13 14 due primarily to conflicting trial schedules. In light of the above, the Court concludes that there is no prejudice to UP if claims based on the events of March 2015 are included in an amended complaint. (2) Undue Delay The procedural history of this case shows that Weeks timely notified the Court of the 15 events of March 2015. It is true that a number of months had passed between March 2015 and the 16 first motion to amend filed in January 2016. However, although the Court is unaware of a rule on 17 point, the filing of a motion between April 2015 (the date of Weeks’s opposition) and October 18 2015 (the date the first summary judgment motion was decided) would have caused a disruption in 19 the summary judgment process and likely would have been viewed with disfavor. The Court does 20 not fault Weeks for failing to file a motion to amend during the period in time in which the motion 21 for summary judgment was under submission. Further, after the summary judgment order issued, 22 the Court issued several orders for the parties to meet and confer regarding not only a second 23 summary judgment motion, but also an amended complaint. The first issue to be resolved was 24 whether a second summary judgment motion would be filed, once that issue was determined, and 25 efforts to meet and confer regarding both the summary judgment motion and an amended 26 complaint were complete, Weeks filed his amended complaint and first motion to amend. Before 27 Weeks filed the first motion to amend, a proposed amended complaint had been circulated, meet 28 and confer efforts had been on-going, and Weeks had so informed the Court. This course of 16 1 conduct does not demonstrate a lack of diligence or undue delay. 2 Once the Court issued its order on the second summary judgment motion, Weeks 3 conducted discovery. Weeks did not request a new deadline for filing an amended complaint. It 4 appears that the parties were continuing to discuss extending the discovery deadline until after 5 October 3, 2016, and Weeks attempted to extend the discovery and motions deadlines. However, 6 Weeks did not file a motion to amend the complaint until about three months after the new 7 discovery period had ended. 8 9 Given the totality of the above, the Court finds that there is some delay. However, Weeks has consistently attempted to raise the events of March 2015 and to include them as part of his 10 bases for relief since April 2015. The delay in seeking leave to amend following the close of the 11 second discovery period is concerning. Nevertheless, considering the ruling on the first motion to 12 amend, the previous efforts to raise issues surrounding the events of March 2015, and the 13 discovery that was conduct, under the totality of these unique circumstances the Court finds that 14 the delay is not egregious. 15 (3) Relevance Beyond Damages The Court previously granted summary judgment on the “disparate treatment” claims 16 17 because there was no evidence of any “adverse employment actions.” See Doc. No. 43 at 14-17. 18 Based on the representations made to the Court, at least the March NOD now appears to be an 19 “adverse employment action.” As an “adverse employment action,” the March NOD could satisfy 20 a key element of an ADA and FEHA disparate treatment. See Garity, 828 F.3d at 863 n.16; 21 Furtado v. State Personnel Bd., 212 Cal.App.4th 729, 744 (2013) (FEHA case); Ninth Circuit 22 Model Jury Inst. (Civil) 12.1; Judicial Council of Cal., Jury Instructions (Civil) § 2540 (Fall 2016 23 ed.). That is, the March NOD could form the basis of a cause of action that is separate from the 24 current “failure to accommodate” claims.7 Also, as an adverse employment action, the March 25 NOD could satisfy an element of a retaliation claim under the ADA and FEHA. See Garity, 828 26 27 28 7 A “disparate treatment” claim is distinct from a “failure to accommodate” claim. See Johnson v. Board of Trs. of Boundary Sch. Dist.. 666 F.3d 561, 567 (9th Cir. 2011) (ADA case); Furtado, 212 Cal.App.4th at 744 (setting out the separate elements for a FEHA “failure to accommodate” claim and a FEHA disability discrimination/“disparate treatment” claim) ; see also Anderson v. Harrison Cnty., 639 F. App’x 1010, 1016 n.8 (5th Cir. 2016); Voeltz v. Arctic Cat, Inc., 406 F.3d 1047, 1051 (8th Cir. 2005). 17 1 F.3d at 863 n.16; Moore, 248 Cal.App.4th at 244-45; Ninth Circuit Model Jury Instruction (Civil) 2 12.9; Judicial Council of Cal., Jury Instructions (Civil) § 2505 (Fall 2016 ed.). Since the March 3 NOD could form the basis of separate causes of action, the March NOD has significance beyond 4 being additional factual support to existing claims. 5 6 (4) Conclusion After considering the arguments and evidence, and conducting an independent plenary 7 review of the matter, the Court respectfully concludes that the findings used to support a denial of 8 amendment are a misapplication of law and thus, contrary to law. See Avalos, 798 F.Supp.2d at 9 1160. Relative to the complaint, the events of March 2015 are new factual developments that 10 support additional causes of action, and the relevant Rule 15 considerations support permitting 11 amendment. See C.F., 654 F.3d at 985; Zucco, 552 F.3d at 1007. Therefore, Weeks will be 12 permitted to amend his complaint to include the events of March 2015 in support of disparate 13 treatment and retaliation claims under the ADA and FEHA. 14 d. 15 Weeks’s proposed amended complaint appears to have a distinct claim under the ADA for Count 2 of ADA Claim - Interactive Process 16 failure to engage in the interactive process. Under FEHA, there is a separate cause of action for 17 failure to engage in an interactive process. See Cal. Gov. Code § 12940(n). However, as 18 explained in the first summary judgment order, there is no independent cause of action for failure 19 to engage in the interactive process under the ADA. See Doc. No. 43 at 12:23-24 (citing Stern v. 20 St. Anthony’s Health Ctr., 788 F.3d 276, 292 (7th Cir. 2015); Kramer v. Tosco Corp., 233 F. 21 App’x 593, 596 (9th Cir. 2007)). Weeks may not include an independent cause of action under 22 the ADA for failure to engage in an interactive process. See id.; see also Mujica v. AirScan, Inc., 23 771 F.3d 580, 592 (9th Cir. 2014) (futility alone can be sufficient to justify denial of amendment). 24 e. 25 Under California law, a plaintiff may obtain punitive damages against a corporation “if the Punitive Damages 26 [corporate] employee is sufficiently high in the corporation’s decision-making hierarchy to be an 27 ‘officer, director, or managing agent.’” Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34, 63 28 (2006) (citing Cal. Civ. Code § 3294 and White v. Ultramar, Inc., 21 Cal.4th 563, 572 (1999)). 18 1 Under the ADA, a plaintiff may obtain punitive damages against his corporate employer through 2 use of traditional agency principles. Kolstad v. American Dental Ass’n, 527 U.S. 526, 540-41 3 (1999); EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d 724, 732 (5th Cir. 2007); Hemmings 4 v. Tidyman’s, Inc., 285 F.3d 1174, 1197 (9th Cir. 2002). Punitive damages are available when a 5 managerial employee acted within the scope of his or her employment. Kolstad, 527 U.S. at 540- 6 41; Hemmings, 285 F.3d at 1197. Stated differently, a corporate employer is liable for punitive 7 damages when its “malfeasing agent served in a ‘managerial capacity’ and committed the wrong 8 while ‘acting in the scope of employment.’” E.I. Du Pont, 480 F.3d at 732. 9 In his opposition to UP’s first summary judgment motion, Weeks expressly stated that he 10 did not oppose summary judgment on punitive damages. See Doc. No. 33 at 2:12-13. At oral 11 argument and in supplemental briefing, Weeks argues that it is unknown why his former counsel 12 did not oppose summary judgment on punitive damages. However, the precise reason why 13 Weeks’s former counsel chose not to oppose summary judgment is not really the issue. As the 14 agent of his client, an attorney’s acts generally are attributed to his client, even if those acts are 15 negligent. See Towery v. Ryan, 673 F.3d 933, 941 (9th Cir. 2012); Community Dental Services v. 16 Tani, 282 F.3d 1164, 1168 (9th Cir. 2002). That Weeks’s current counsel may disagree with the 17 decision of Weeks’s former counsel is not by itself a sufficient basis to revisit the issue. Weeks 18 will not be permitted to include a prayer for punitive damages that is based on the conduct 19 described in the original complaint. See id. 20 Nevertheless, at oral argument, Weeks’s counsel also indicated that events after the filing 21 of the original complaint could support punitive damages. In particular, the events of March 2015 22 and the failure to inform of renewal meetings were identified. Weeks’s counsel also identified 23 several managerial level employees whose conduct may subject UP to punitive damages. Because 24 these events postdate the original complaint, the Court will permit Weeks to include a request for 25 punitive damages based on the events of March 2015 forward. 26 As part of the amended complaint, and in connection with claims based on the events of 27 March 2015, Weeks will be required to identify an “officer, director, or managing agent” for 28 punitive damages under FEHA, and a “managerial employee” for punitive damages under the 19 1 ADA. Considering the discovery that has occurred, Weeks should know which UP employees 2 were involved with the March 2015 events. However, for events based on the failure to inform of 3 renewal meetings, because this is a very recent event and no discovery has occurred (unlike the 4 events of March 2015), Weeks need not identify an actual managerial employee or officer, director 5 or managing agent. 6 f. 7 Weeks has described his Count 4 claims as “retaliatory constructive discharge” claims. A Constructive Discharge 8 constructive discharge is an adverse employment action. See Jordan v. Clark, 847 F.2d 1368, 9 1377 n.10 (9th Cir. 1988). As an adverse employment action, a constructive discharge may meet a 10 key element in either a disparate treatment or retaliation claim. However, a constructive discharge 11 occurs when an employee resigns because of a working environment that has become so egregious 12 and intolerable that a reasonable person in the employee’s position also would have resigned. See 13 Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007); Draper v. Coeur Rochester, 147 F.3d 14 1104, 1110 (9th Cir. 1998); Steele v. Youthful Offender Parole Bd., 162 Cal.App.4th 1241, 1253 15 (2008). Here, there is no indication that Weeks has resigned from UP. Therefore, Weeks may not 16 pursue claims based on a “constructive discharge.”8 17 g. 18 Weeks will not file the proposed amended complaint (Doc. No. 87-3). Instead, Weeks will Amended Complaint 19 file an amended complaint, entitled First Amended Complaint (“FAC”). As part of the FAC, 20 Weeks will expressly identify the adverse employment actions at issue with respect to his 21 disparate treatment claims. Weeks will also expressly identify protected conduct and the resulting 22 adverse employment actions with respect to his retaliation claims. The FAC should be consistent 23 with the analysis of this order. 24 25 26 27 28 8 The parties appear to dispute Weeks’s employment status. At this time it is unclear whether Weeks’s is employed or whether he has somehow been terminated. Cf. Clements v. Barden Miss. Gaming, L.L.C., 373 F.Supp.2d 653, 668-69 (N.D. Miss. 2004) (finding that a failure to hire/rehire was an effective or de facto termination); Bailey v. Ga.-Pac. Corp., 176 F. Supp. 2d 3, 6-7 (D. Me. 2001) (describing a failure to participate in an employee’s work-release program to be a de facto termination). For purposes of this motion, it is enough for the Court to conclude that Weeks may not pursue claims based on a “constructive discharge” because he has not resigned. 20 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s motion for reconsideration is GRANTED, consistent with the above analysis; 4 2. Within ten (10) days of service of this order, Plaintiff shall file a First Amended 5 6 Complaint; 3. 7 8 answer; 4. 9 10 Within ten (10) days of service of the First Amended Complaint, Defendant shall file an A telephonic status conference will be held on May 22, 2017 at 11:00 a.m. for purposes of setting a trial date; 5. Within fourteen (14) days of service of Defendant’s answer, the parties shall contact the 11 Magistrate Judge for purposes of setting additional discovery or other appropriate 12 deadlines that may be necessary in light of this order.9 13 14 15 IT IS SO ORDERED. Dated: May 3, 2017 SENIOR DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Nothing in this order should be read to preclude the parties from voluntarily continuing any discovery efforts on their own (such as depositions) and without court involvement. 21

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