McKinzy v. National Railroad Passenger Corporation et al

Filing 90

ORDER by Judge Claudia Wilken GRANTING IN PART AND DENYING IN PART 48 Motion for Summary Judgment; DENYING 56 Motion Continue DiscoveryReschedule Trial Date; DENYING 81 Motion Continue DiscoveryReschedule Trial Date (Attachments: # 1 Standing Order) (cwlc3, COURT STAFF) (Filed on 12/23/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DIANE McKINZY,

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Plaintiff,

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United States District Court
For the Northern District of California

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No. C 10-1866 CW

v.
NATIONAL RAILROAD PASSENGER
CORPORATION, also known as
AMTRAK; WILFRED HUBBARD; DOES I
through X, inclusive,
Defendants.
________________________________/

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ORDER GRANTING IN
PART AND DENYING IN
PART DEFENDANTS'
MOTIONS FOR SUMMARY
JUDGMENT (Docket No.
48); DENYING
PLAINTIFF'S MOTION TO
CONTINUE DISCOVERY
(Docket No. 56); AND
DENYING DEFENDANTS'
MOTION TO MODIFY THE
COURT'S PRETRIAL
SCHEDULING ORDER
(Docket No. 81)

Defendants National Railroad Passenger Corporation (Amtrak)
and Wilfred Hubbard seek summary judgment or, in the alternative,
partial summary judgment in their favor on all claims filed by pro

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se Plaintiff Diane McKinzy.

Docket No. 48.

McKinzy has opposed

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the motion.

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cutoff.

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submissions and oral argument, the Court grants Defendants' motion

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in part and denies it in part.1

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In addition, McKinzy moves to extend the discovery

Docket No. 56.

Having considered all of the parties'

BACKGROUND

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On October 1, 2007, McKinzy began work as Assistant Passenger

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Conductor for Amtrak, based in Oakland, California.

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Amended

To the extent that the Court relied upon evidence to which
Defendants object, those objections are overruled. To the
extent the Court did not rely on evidence to which the
parties objected, the objections are overruled as moot.

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Declaration of Diane McKinzy, Exh. A.

Pursuant to a collective

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bargaining agreement, the first ninety to 120 days of her

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employment, including training, were considered probationary.

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McKinzy's new hire training was supervised by Rick Peseau, a

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Senior Officer at Amtrak's Employee Development Department at the

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Oakland station.

Id.

Declaration of Rick Peseau in support of

Defendants' Supplemental Brief at ¶ 2-3.

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In January 2008, McKinzy was transferred to the San Francisco

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United States District Court
For the Northern District of California

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station where she was required to restart her probationary period.

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McKinzy claims that the decision to transfer her and require her

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to restart her probationary status was discriminatory based on

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sex.

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only female in a training class that was transferred from Oakland

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In support of this claim, McKinzy attested that she was the

to San Francisco, due to lack of work.

McKinzy Amended Dec. at

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2:22-24.

At the time McKinzy was transferred, two male assistant

conductors from Oakland were also transferred for retraining in

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San Francisco and were required to restart their probationary

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period.

Peseau Dec. at ¶ 6.

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Peseau attested that McKinzy was "let go" from Oakland

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"principally" because Amtrak experienced a reduction in its

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workforce due to inclement weather that led to cancellation of
certain train service.

Id. at ¶ 7.

However, Peseau also stated

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that her performance in Oakland was poor; she was late to class in

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some instances, failed to bring her equipment and did not complete
her homework.2

Id.

In response to McKinzy's charge of discrimination, which she

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later submitted to the Equal Employment Opportunity Commission,

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Amtrak stated that "there was not enough work and too many persons

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on the Oakland Crew Base to allow [McKinzy] to complete her

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probation hours."

McKinzy Amended Dec., Ex. B.

not mention any poor performance by McKinzy.

The letter does

Amtrak stated that

United States District Court
For the Northern District of California

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on January 8, 2008, McKinzy was offered and accepted a move to the

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CalTrain Crew Base in San Francisco, with the proviso that she

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would restart her probationary period.3

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McKinzy was required to receive classroom training and would work

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According to Amtrak,

for a ninety to 120 day probationary period thereafter.

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On January 31, 2008, McKinzy worked her last day in Oakland,

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and, on February 5, 2008, she transferred to San Francisco.

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McKinzy Amended Dec., Ex. B.

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Caltrain line that ran between San Francisco and San Jose.

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noted earlier, Sturken supervised McKinzy and Hubbard.

McKinzy was assigned to Amtrak's

According

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Alan Sturken, the trainmaster in charge of the trains
on which McKinzy and Hubbard later worked, attested to the
same facts regarding McKinzy's performance in Oakland.
However, the Court disregards his statements because they
lack foundation.
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Amtrak's response states that McKinzy accepted the
offer to join CalTrain on January 8, 2009, but because
McKinzy did not work for Amtrak during 2009, it appears that
2008 is the correct date.
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As

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to Sturken, McKinzy began work as a probationary assistant
conductor in San Francisco on March 10, 2008.
McKinzy became a member of the United Transportation Union on

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March 21, 2008, McKinzy Decl., Ex. H.

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offering her employment with Amtrak, McKinzy was required to join

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According to the letter

the union within sixty calendar days after she first performed
compensated service in her position.

Amended McKinzy Decl., Ex.

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A.

However, Amtrak's response to McKinzy's EEOC complaint stated

United States District Court
For the Northern District of California

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that if she completed her probationary period--a period of ninety

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to 120 actual work days--in San Francisco, following her transfer

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from Oakland, then she would be required to join the union.

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McKinzy Amended Dec., Ex. B.

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McKinzy claims that Hubbard, while working as the conductor,
sexually harassed her on several occasions when they worked

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together on the Caltrain line.

McKinzy contends that most of the

harassment occurred during trips on "baseball trains," referring

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to trips bringing passengers to and from San Francisco for Giants

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games at AT&T park.

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When asked about the first incident of harassment by Hubbard,
McKinzy stated that she and Hubbard had been talking.
present at the time.

No one was

During the discussion, which may have

involved rules for boarding the train, Hubbard said, "[Y]ou know,

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perhaps you might consider being intimate with me."

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at 207:13-14.

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218:1-4.

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rest of the day.

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McKinzy Dep.4

She responded, "Don't say that to me."

Id. at

Hubbard said, "Okay" and did not speak to her for the
Id. at 218:8-12.

The second incident, as McKinzy describes it, occurred during
a trip on a "baseball train."

Id. at 232:3-5.

The train was at a

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stop, prior to boarding time, and McKinzy had a break.
233:1-9.

Id. at

While standing near the doors to the first cab, Hubbard

United States District Court
For the Northern District of California

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approached her and asked her to have sex.

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McKinzy declined and told him politely to stop propositioning her.

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Id. at 234:19-24.

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away and proceeded with her job duties.

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Id. at 234:8-15.

When Hubbard did not respond, McKinzy walked

McKinzy felt very uncomfortable.

Id. at 235:10-19, 237:11Id. at 234:19-21.

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McKinzy testified that the next incident also occurred on a
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train.

Hubbard reportedly told McKinzy, "You know, I'd like to

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have sex with you.

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for sex.

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"kept asking [McKinzy] to have sex with him."

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The conversation went on for about two to four minutes.

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240:2-14.

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I don't pay for pussy, you know.

What do you think about it?"

I don't pay

Id. at 240:18-23.

Hubbard

Id. at 239:1-2.
Id. at

McKinzy asked Hubbard to stop talking to her in that

manner, but he responded, "Well, just think about it."

Id. at 21-

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22.

McKinzy felt that Hubbard was not taking her seriously.

All excerpts from McKinzy's deposition cited in this
order were included as Exhibit A to Duyen T. Nguyen's
Declaration in Support of Defendants' Motion for Summary
Judgment.
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Id.

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at 241:18.

In deposition, McKinzy was asked why Hubbard would

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have shown such persistence.

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pressure because Hubbard was monitoring her job performance and

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she was a probationary employee.

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Her response indicates that she felt

Id. at 239:6-11.

McKinzy described a subsequent incident that occurred while
she was working in San Francisco.
the brakes."

At the time, she was "clonking

Clonking entails bending over to tighten the train

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brakes to prevent it from rolling.

Id. at 243:15-25.

The task

United States District Court
For the Northern District of California

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required McKinzy to pull up and down on the adjuster attached to

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the brake, the resistance increasing with each pull.

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243:17-22, 246:22-247:11, 248:4-17.

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trying to keep it from moving, bent over in a near squat, clonking

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the brakes, Hubbard approached her from behind and touched her

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Id. at

As McKinzy faced the train,

buttocks close to her "private area."

Id. at 244:1-15, 248:14-19.

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McKinzy testified, "I was clonking the brakes and he came up
behind me and touched me on my butt.

But the way I was bent over

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it was a little--he got a little closer to my private area as well

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as my butt because the way I had to bend over to clonk the

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brakes."

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up and said, "What are you doing."

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Id. at 244:1-5.

She yelled.

Id. at 248:22.

Id. at 248:25-249:5.

asked Hubbard, "Why did you touch my butt?
Why are you touching me?"

She jumped
She

Why did you do that?

Id. at 251:12-13.

Hubbard responded,

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"I don't know.
apologized.

I just felt like it."

Id. at 251:2-19.

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Id. at 251:14-15.

Hubbard

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McKinzy also testified as to what was apparently a fifth

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incident of harassment, which occurred on a day when a train had

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derailed.

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would have sex with him.

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Again, Hubbard broached the topic of whether McKinzy
Id. at 273:7-274:14.

Hubbard denies having ever harassed McKinzy or attempting to
pursue anything other than a working relationship with her.
Sturken testified that he reviewed Amtrak's records and found

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two occasions when Hubbard and McKinzy worked together.

On April

United States District Court
For the Northern District of California

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16, 2008 both worked on train number sixty-six, departing at

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4:27 pm from San Francisco to San Jose, and on train number

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eighty-nine, departing at 6:50 pm from San Jose to San Francisco.

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On April 19, 2008 both worked together again on train number

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forty-six departing San Francisco to San Jose at 8:00 pm, and on

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train number fifty-one departing at 10:30 pm from San Jose to San

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Francisco.

McKinzy insists that she worked with Hubbard more than

twice and continues to seek records to this effect.
Amtrak has an anti-harassment and discrimination policy,

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memorialized in its employee handbook, "Amtrak Standards of

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Excellence."

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on September 24, 2007.

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McKinzy acknowledged that she received the handbook
Id., Ex. B.

The policy states Amtrak's

commitment to managing the company and administering programs free
from sex discrimination and in conformance with all applicable

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federal, state and local laws.

Declaration of Susan Venturelli,

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Ex. A.

McKinzy testified that in training she was informed that

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she could submit complaints to management, the human resources
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department or hot-line telephone number.

McKinzy Dep. at 167:24-

168:3.
In her deposition, McKinzy testified that conductors,

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including Hubbard, supervised her work, although she conceded that

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they could not fire or suspend her.

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169:24-25; 179:2-4.

McKinzy Dep. at 169:13-15,

According to McKinzy, a conductor could give

a report about an assistant conductor that could lead to his or

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her termination.

Id. at 169:14-18.

McKinzy faulted Hubbard's

United States District Court
For the Northern District of California

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declaration for failing to disclose his duties giving orders to

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assistant conductors and providing a report as part of the

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assistant conductor's performance evaluation.

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Hubbard does not deny that he was McKinzy's supervisor.

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In his declaration,

McKinzy testified that she called Sturken twice, leaving two
voice mail messages.

When asked to relay what she said "verbatim"

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in the messages, McKinzy responded that in the first message she
asked Sturken to call her back, stating, "It's very important.

I

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feel very uncomfortable about a situation and I need you to call

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me back."

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repeated, "It's very important.

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at 174:10-11.

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Id. at 174:3-9.

The second time she called, McKinzy
I need you to call me back."

Id.

According to McKinzy, Sturken never called back.

Sturken disputes that McKinzy ever left a voice message on his
phone asking him to call her back.

Sturken Dec. at ¶ 12.

McKinzy

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conceded that she "never completely made a complaint to Al

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Sturken."

McKinzy Dep. at 171:23-25.

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never saw Sturken on any of her trains.
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McKinzy testified that she
Id. at 316:11-12.

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McKinzy testified that she called Charles Herndon twice and

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left similar messages.

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does not disclose whether she received a call back.

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attests that he never received a voice message from her asking him

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to call her back.

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McKinzy Dep. at 174:13-16.

Her testimony
Herndon

Declaration of Charles Herndon at ¶ 8.

McKinzy

has provided no indication of when she made the phone calls to
Sturken and Herndon.

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In addition to the harassment by Hubbard, McKinzy testified

United States District Court
For the Northern District of California

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that an individual named Schraeder made disparaging comments to

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her based on her being a woman.

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McKinzy does not provide Schraeder's first name or point to any

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evidence detailing the nature of his comments.

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comments do not appear to be related to McKinzy's harassment or

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McKinzy Dep. at 274:21-23.

Schraeder's

discrimination claim.

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On May 21, 2008, McKinzy received a "Letter of Counseling"
reminding her of her obligation to report to work on time.

At

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that point, McKinzy had arrived late to work on five occasions.

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The counseling letter provided language in the General Code of

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Operating Rules and Amtrak's Standard of Excellence addressing

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attendance.

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Sturken Dec., Exh. E.

On May 29, 2008, McKinzy

arrived twenty-nine minutes late.
On June 6, 2008, McKinzy met with Herndon, Sturken and

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another man whose name she could not recall, although he may have

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been Mark Collins.

McKinzy was informed that she was terminated

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and received a letter stating that her application for employment
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as an assistant conductor with Amtrak was "disapproved."

During

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the meeting, McKinzy asked why Sturken and Herndon had failed to

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call her back and informed the men directly, for the first time,

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that she had been experiencing harassment.

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met in person with Sheila,5 an Amtrak Human Resources officer, and

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That day McKinzy also

told her that Hubbard had been harassing her.

Id. at 319:19-

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320:13.
On December 17, 2008, McKinzy submitted to the EEOC and the

United States District Court
For the Northern District of California

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Department of Fair Employment and Housing a charge of

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discrimination.

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following:

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In her charge against Amtrak, McKinzy stated the

My most recent position was Assistant Conductor. From
March through May 2008, I was sexually harassed by
Wilford Hubbart Conductor. I worked with Mr. Hubbart
5 or six times and each time, he stated that he wanted
to f*ck me. He also touched my buttock while we were
working. I called the Train Masters, Al Sterkin and
Charles Herndon, to report the sexual harassment, but
my calls were never returned. On June 6, 2008, I was
terminated.
Respondent stated that I was terminated because I did
not pass my probation.

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I believe I was discriminated against because of my
sex (female) and retaliated against for engaging in
protected activity, in violation of Title VII of the
Civil Rights Act of 1964, as amended.
On November 30, 2011, based on its investigation, the EEOC

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was unable to conclude that the information obtained establishes

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McKinzy does not indicate Sheila's last name.
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statutory violations under Title VII.

Declaration of Elias Munoz,

Ex. C.
McKinzy has brought suit against Amtrak for (1) sex

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discrimination in violation of the California Fair Employment and

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Housing Act (FEHA); (2) sexual harassment in violation of the

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FEHA; (3) wrongful termination; (4) breach of the covenant of good
faith and fair dealing; (5) negligent infliction of emotional

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distress; (6) intentional infliction of emotional distress; and

United States District Court
For the Northern District of California

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(7) negligent hiring, training and supervision.

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McKinzy has sued Hubbard, as an individual, for (1) negligent

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infliction of emotional distress; (2) intentional infliction of

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emotional distress; (3) assault, (4) battery; and (5) punitive

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damages.

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In addition,

DISCUSSION

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I. Claims Against Amtrak
A. Sex Discrimination
Defendants contend that McKinzy has insufficient evidence to

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support her claim for sex discrimination.

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McKinzy asserts that the decision to transfer her from Oakland to

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San Francisco and require her to start her probationary period

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amounted to sex discrimination.

As noted previously,

McKinzy testified that Schraeder

made derogatory comments about her being a woman.

However, she

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does not argue or point to evidence that Schraeder was involved in
the adverse employment action.

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Therefore, direct evidence of

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Schraeder's bias does not support McKinzy's claim for sex
discrimination.
California courts apply the framework established by

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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to consider

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circumstantial evidence of discrimination in resolving motions for

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summary judgment on claims under the FEHA.
Inc., 24 Cal. 4th 317, 354 (2000).

Guz v. Bechtel Nat.,

To establish a prima facie

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case of discrimination under the FEHA, McKinzy must show that

United States District Court
For the Northern District of California

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(1) she belongs to a protected class, (2) she was qualified for

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the position, (3) she was subject to an adverse employment action,

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and (4) similarly situated individuals who were not members of the

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protected class were treated more favorably.

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Silver State Disposal, Inc., 292 F.3d 654, 658 (9th Cir. 2002).

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Aragon v. Republic

McKinzy's claim fails under the McDonnell Douglas test

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because she cannot satisfy the fourth element.

Undisputed

evidence shows that two other male assistant conductors were

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transferred from Oakland to San Francisco at the same time as

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McKinzy and both were required to restart their probationary

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status.

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B. Harassment
"California courts have adopted the same standard [applied
under Title VII] for hostile work environment sexual harassment

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claims under the FEHA."

Lyle v. Warner Bros. Television Prods.,

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38 Cal. 4th 264, 279 (2006).

Accordingly, to prevail McKinzy must

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establish that "she was subjected to sexual advances, conduct, or
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comments that were (1) unwelcome, (2) because of sex, and

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(3) sufficiently severe or pervasive to alter the conditions of

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her employment and create an abusive work environment."

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(internal citations omitted).

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the offending conduct was imputable to her employer."

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Id.

"In addition, she must establish
Id.

Amtrak

argues that McKinzy cannot establish sufficiently severe or
pervasive harassment or harassment imputable to the company.

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"With respect to the pervasiveness of harassment, courts have

United States District Court
For the Northern District of California

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held an employee generally cannot recover for harassment that is

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occasional, isolated, sporadic, or trivial; rather, the employee

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must show a concerted pattern of harassment of a repeated,

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routine, or a generalized nature."

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whether conduct rises to the level of actionable harassment,

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Id. at 283.

To determine

California courts consider "(1) the nature of the unwelcome sexual

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acts or words (generally, physical touching is more offensive than
unwelcome verbal abuse); (2) the frequency of the offensive

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encounters; (3) the total number of days over which all of the

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offensive conduct occurs; and (4) the context in which the

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sexually harassing conduct occurred."

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Peninsula Hospital, 214 Cal. App. 3d 590, 610 (1989).

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Fisher v. San Pedro

Here, Hubbard's conduct, if proven, could be found to rise to
the level of actionable harassment because it amounts to a pattern

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of escalating harassment that included persistent, explicit,

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unwelcome propositions to have sex.

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repeatedly rejected Hubbard's invitations to have sex.
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McKinzy testified that she
Finally,

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Hubbard touched her buttocks and nearly touched her "private
area."
This case is distinguishable from the cases upon which Amtrak

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relies.

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579 F.3d 858, 862 (8th Cir. 2009), the plaintiff experienced

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In Anderson v. Family Dollar Stores of Arkansas, Inc.,

repeated back rubs and cradling of her chin; the case did not
involve sexual touching of the degree of offensiveness found in

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this case, nor did the alleged harasser make direct, in-person

United States District Court
For the Northern District of California

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propositions for sex.

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716-17 (1986), the accused harasser propositioned the plaintiff

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while on a business trip to Detroit and again during a business

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trip to San Francisco.

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suggestive comment, telling the plaintiff that she was "off the

15

In Jones v. Flagship Intern., 793 F.2d 714,

The accused later made a sexually

hook," because a friend was interested in her.

In this case,

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however, there is evidence that Hubbard demonstrated greater
persistence and touched McKinzy offensively.
Other cases cited by Amtrak are no longer good law.

The

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opinion in Corbitt v. Home Depot U.S.A, Inc., 573 F.3d 1223, 1241

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(11th Cir. 2009), was vacated by Corbitt v. Home Depot U.S.A.,

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Inc. (Corbitt II), 589 F.3d 1136 (11th Cir. 2009).

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Although

Corbitt II likewise found no actionable harassment under Title
VII, that opinion was also subsequently vacated.

Corbitt v. Home

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Depot U.S.A., Inc., 611 F.3d 1379 (2010).

The Supreme Court and

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the Ninth Circuit have expressly rejected the standard applied in

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Rabidue v. Osceola Refining Co., 805 F.2d 611, 615 (6th Cir.
14

1

1986).6

See, Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)

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(holding that a "discriminatorily abusive work environment, even

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one that does not seriously affect employees' psychological well-

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being" may be actionable.); Ellison v. Brady, 924 F.2d 872, 877

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(9th Cir. 1991).

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Because McKinzy concedes that she did not complain about the

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harassment to Amtrak authorities until the day she was terminated,
and she does not point to any other evidence that Amtrak knew or

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United States District Court
For the Northern District of California

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should have known about the misconduct, she cannot sue Amtrak for

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harassment by a co-worker.

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("Harassment of an employee, an applicant, or a person providing

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services pursuant to a contract by an employee, other than an

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Cal. Govt. Code § 12940(j)(1)

agent or supervisor, shall be unlawful if the entity, or its

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agents or supervisors, knows or should have known of this conduct
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and fails to take immediate and appropriate corrective action.")
However, McKinzy asserts that Hubbard was her supervisor.

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"[U]nder the FEHA, an employer is strictly liable for all acts of

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sexual harassment by a supervisor."

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Services v. Superior Ct. (McGinnis), 31 Cal. 4th 1026, 1042 (2003)

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(emphasis in original).

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State Dept. of Health

Amtrak asserts that Hubbard was not a

supervisor because trainmasters, here Sturken, were in charge of

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The workplace at issue in Rabidue included posters of
naked and partially dressed women and an employee who
customarily called women "whores," "cunt," "pussy," and
"tits," referred to the plaintiff as a "fat ass," and
specifically stated, "All that bitch needs is a good lay."
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overseeing the trains.

This does not disprove that Hubbard was

also McKinzy's supervisor.
Amtrak also argues Hubbard was not a supervisor because he

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was a union member, not management.

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unpersuasive because the definition of "supervisor" under the FEHA

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Amtrak's argument is

is not based upon the distinction between management and labor.
The definition states,7

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United States District Court
For the Northern District of California

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"Supervisor" means any individual having the
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other
employees, or the responsibility to direct them, or to
adjust their grievances, or effectively to recommend
that action, if, in connection with the foregoing, the
exercise of that authority is not of a merely routine
or clerical nature, but requires the use of
independent judgment.

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Cal. Govt. Code § 12926(r).

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Hubbard had the responsibility to direct her on the job.

17

dispute of fact precludes summary judgment that she was not

18

sexually harassed by her supervisor.

19

McKinzy provides evidence that
This

Next, Amtrak argues that the avoidable consequences doctrine

20
21

provides a complete defense to McKinzy's sexual harassment claim.

22

"Under the avoidable consequences doctrine as recognized in

23

California, a person injured by another's wrongful conduct will

24

not be compensated for damages that the injured person could have

25
26
27
28

Section 12926 is part of the FEHA and subdivision (r)
was added in 1999 to include the definition of supervisor
employed by the Agriculture Labor Relations Act. Chapman v.
Enos, 116 Cal. App. 4th 920 (2004).
7

16

McGinnis, 31 Cal.

1

avoided by reasonable effort or expenditure."

2

4th at 1043.

3

damages for hostile environment sexual harassment by a supervisor,

4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11

McGinnis explained, in the context of a claim for

An employee's failure to report harassment to the
employer is not a defense on the merits to the
employee's action under the FEHA, but at most it
serves to reduce the damages recoverable. And it
reduces those damages only if, taking account of the
employer's anti-harassment policies and procedures and
its past record of acting on harassment complaints,
the employee acted unreasonably in not sooner
reporting the harassment to the employer.
Id. at 1049.
Thus, the doctrine of avoidable consequences is a defense

12

only to damages.

13

make a reasonable effort to complaint about the harassment.

14

Here, there is evidence that McKinzy did not

McKinzy did not call Amtrak's hotline or a Human Resources

15
16

representative after she failed to receive a response to her

17

voicemail messages, even though she was aware of those avenues for

18

making a complaint.

19

harassment policies and procedures and its past record of acting

20

on harassment complaints, found that McKinzy was not reasonably

21

diligent in reporting Hubbard's misconduct, Amtrak could be

22

If a jury, taking account of Amtrak's anti-

shielded from damages.

23
Summary judgment in favor of Amtrak on McKinzy's sexual
24
25
26

harassment claim is denied, although McKinzy's damages may be
limited.

27
28
17

1

C. Failure to Prevent Harassment and Discrimination

2

Included in McKinzy's first cause of action for sexual

3

harassment and discrimination in violation of the FEHA is a claim

4

against Amtrak for failure to prevent harassment, pursuant to

5

California Government Code section 12940(k).

6
7

summary judgment as to this claim.

Amtrak moves for

Amtrak contends that a claim

for failure to prevent harassment cannot lie in the absence of a

8
9

finding of actual harassment, Trujillo v. North Co. Transit Dist.,

United States District Court
For the Northern District of California

10

63 Cal. App. 4th 280, 288-89 (1998).

11

not present sufficient evidence of harassment.

12

above, McKinzy has presented evidence upon which a reasonable jury

13

could find Amtrak liable for sexual harassment by a supervisor.

14

Accordingly, Amtrak's motion for summary judgment on this claim is

15

Amtrak argues McKinzy does
As explained

denied.

16
17
18

D. Violation of Public Policy
Amtrak construes McKinzy's third cause of action for

19

"Violation of Public Policy" as a claim for unlawful discharge in

20

violation of public policy.

21

discharged because of her complaints about sexual harassment and

22

discrimination.

23
24

McKinzy alleges that she was

Compl. at ¶ 11.

Amtrak argues that it is

entitled to summary judgment because McKinzy's underlying claims
of sexual harassment and discrimination are unsupported.

However,

25
26
27

as noted above, McKinzy has provided sufficient evidence of
Amtrak's liability for sexual harassment by a supervisor.

28
18

1

Nevertheless, summary judgment is warranted on this claim

2

because McKinzy admits that she did not complain about the

3

harassment to Sturken, Herndon and the Human Resources Department

4

until after she received notice of her termination.

5

Amtrak could not have decided to terminate McKinzy based on her

6
7

Therefore,

complaints.
E. Breach of Covenant of Good Faith and Fair Dealing

8
9

McKinzy's second cause of action is for breach of the

United States District Court
For the Northern District of California

10

covenant of and good faith and fair dealing based on Amtrak's

11

permitting and failing to prevent sexual harassment.

12

and conditions of employment create a species of contract between

13

an employer and employee, such that a covenant of good faith and

14

fair dealing is implied.

15

The terms

Foley v. Interactive Data Corp., 47 Cal.

3d 654, 683-84 (1988).

16
17
18

Defendants rely upon Smith v. City and County of San
Francisco, 225 Cal. App. 3d 38 (1990), to argue that a claim for

19

breach of the implied covenant of good faith and fair dealing may

20

not be stated where there is no implied-in-fact contract.

21

However, McKinzy was employed by Amtrak and the employee handbook

22

Amtrak provided to her includes a provision stating Amtrak's

23
24

policy barring sexual harassment.

This evidence supports the

existence of an agreement by Amtrak to provide McKinzy with a

25
26

harassment-free workplace.

Foley, 47 Cal. 3d at 680 ("In the

27

employment context, factors apart from consideration and express

28

terms may be used to ascertain the existence and content of an
19

1
2
3

employment agreement, including the personnel policies or
practices of the employer.”).
Nevertheless, McKinzy's claim fails because she lacks

4

evidence of a breach of the covenant.

5

the covenant of good faith and fair dealing "is measured by the

6
7

The obligation imposed by

provisions of the particular agreement at issue."

Kuhn v.

Department of General Services, 22 Cal. App. 4th 1627, 1637

8
9

(1994).

"In essence, it is an implied promise that neither party

United States District Court
For the Northern District of California

10

will take any action extraneous to the defined relationship

11

between them that would frustrate the other from enjoying the

12

benefits under the agreement to which the other is entitled."

13

at 1637-38.

14

about several avenues for reporting sexual harassment.

15

Id.

McKinzy admits that Amtrak informed her in training

Furthermore, McKinzy admits that she never actually complained to

16
17
18

Amtrak authorities about the harassment prior to her termination.
Thus, McKinzy has insufficient evidence to show that Amtrak took

19

action to interfere with her enjoyment of a harassment-free

20

workplace.

21
22
23
24

Summary judgment as to McKinzy's claim for breach of the
covenant of good faith and fair dealing is granted in favor of
Amtrak.
F. Negligent Infliction of Emotional Distress

25
26
27

Amtrak argues that McKinzy's claims for negligent and
intentional infliction of emotional distress should be summarily

28
20

1
2

dismissed because they are preempted by the Federal Employers'
Liability Act, 45 U.S.C. § 51, et seq.

3

The FELA makes a railroad common carrier in interstate

4

commerce liable in damages to any person suffering injury while

5

that person is employed by such carrier in such commerce.8

6

"In

1906, Congress enacted the FELA to provide a federal remedy for

7
8
9

railroad workers who suffer personal injuries as a result of the
negligence of their employer or their fellow employees."

United States District Court
For the Northern District of California

10

Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561

11

(1987).

12

of traditional defenses to tort liability and to facilitate

13

recovery in meritorious cases."

14

"A primary purpose of the Act was to eliminate a number

Id.

Under the FELA, "an action

may be brought in a district court of the United States, in the

15
district of the residence of the defendant, or in which the cause
16
17

of action arose, or in which the defendant shall be doing business

18
8

The FELA, 45 U.S.C. § 51, states in relevant part

19
20
21
22
23
24
25
26
27
28

Every common carrier by railroad while engaging
in commerce between any of the several States or
Territories . . . shall be liable in damages to
any person suffering injury while he is employed
by such carrier in such commerce, or, in case of
the death of such employee, to his or her
personal representative, for the benefit of the
surviving widow or husband and children of such
employee . . . for such injury or death
resulting in whole or in part from the
negligence of any of the officers, agents, or
employees of such carrier, or by reason of any
defect or insufficiency, due to its negligence,
in its cars, engines, appliances, machinery,
track, roadbed, works, boats, wharves, or other
equipment.
21

1

at the time of commencing such action."

45 U.S.C. § 56.

The

2

"FELA provides the sole and exclusive remedy for injured employees

3

of railroad carriers engaged in interstate commerce. . . 'such

4

liability can neither be extended nor abridged by common or

5

statutory laws of the State.'"

6
7

Wildman v. Burlington Northern R.

Co., 825 F.2d 1392, 1395 (9th Cir. 1987).
Supreme Court authority cited by Amtrak holds that claims for

8
9

negligent infliction of emotional distress are cognizable under

United States District Court
For the Northern District of California

10

the FELA.

11

532, 549-50 (1994) (holding that "claims for damages for negligent

12

infliction of emotional distress are cognizable under FELA").

13

Defendants do not argue that McKinzy's claim cannot be pursued

14

under the FELA.

15

Consolidated Rail Corporation v. Gottshall, 512 U.S.

Accordingly, McKinzy may pursue her claim for

negligent infliction of emotional distress, although the claim

16
17

will be governed by the FELA, not California law.9

18
19
20
21
22
23
24
25
26
27
28

The Ninth Circuit has stated that, under the FELA, an
employer may be liable for the intentional misconduct of an
employee on a theory of direct negligence. Taylor v.
Burlington Northern R. Co., 787 F.2d 1309, 1314 (9th Cir.
1986). That is, "an employer is liable if it fails to
prevent reasonably foreseeable danger to an employee from
intentional or criminal misconduct." Id. at 1315 (citing
Harrison v. Missouri Pacific Railroad, 372 U.S. 248 (1963)
(per curiam)). However, Defendants have not argued that
McKinzy will be unable to meet this standard. Nor have they
addressed whether, under the FELA, harassment by a purported
supervisor is imputed to the employer in a claim for
negligent infliction of emotional distress.
9

22

1
2

G. Intentional Infliction of Emotional Distress
Amtrak argues that the FELA precludes McKinzy's claim for

3

intentional infliction of emotional distress.

4

Southern Pacific Transp. Co., 993 F.2d 107, 112 (5th Cir. 1993),

5

the case upon which Amtrak relies, the Fifth Circuit held that the

6
7

In Abate v.

FELA preempted the plaintiff's state law claim for "infliction of
emotional distress by outrageous conduct."

Abate does not hold

8
9

that a claim for intentional infliction of emotional distress is

United States District Court
For the Northern District of California

10

not actionable under the FELA.

11

controlling authority addressing this issue.

12

v. Metro-North R.R. Co., 318 F.3d 422, 425 (2nd Cir. 2003), a

13

sexual harassment case, the Second Circuit held that claims of

14

intentional infliction of emotional distress are actionable under

15

the FELA.

The parties do not point to any
However, in Higgin

Defendants do not argue that Plaintiff cannot pursue

16
17
18
19
20

this claim under the FELA, although the claim will be governed by
the FELA, not California law.10
Therefore, summary judgment in favor on Amtrak on this claim
is denied.

21

H. Negligent Hiring, Supervision and Training

22

Summary judgment in favor of Amtrak on McKinzy's claim for

23

negligent hiring, training and supervision is warranted because

24
25
26
27
28

As noted earlier, the Ninth Circuit has indicated that in
certain circumstances, under the FELA, an employer may be liable
for the intentional misconduct of an employee. Taylor, 787 F.2d at
1309.
10

23

1

McKinzy has not pointed to evidence that Amtrak was negligent in

2

its training, hiring or supervision of Hubbard.

3

II. Claims Against Hubbard

4
5
6
7

Defendants assert that the FELA preempts McKinzy's common law
claims for infliction of emotional distress, assault and battery
against Hubbard.

However, none of the authorities cited by

Defendants demonstrates that the FELA precludes an employee's

8
9

individual liability for common law tort claims.

The FELA states,

United States District Court
For the Northern District of California

10

"Every common carrier by railroad while engaging in

11

commerce . . . shall be liable in damages" for negligence.

12

45 U.S.C. § 51.

13

individuals who are employees of railroad companies.

14

It does not provide the exclusive remedy against

A. Intentional Infliction of Emotional Distress

15
Defendants argue that McKinzy lacks evidence sufficient to
16
17

proceed on her claim against Hubbard for intentional infliction of

18

emotional distress.

19

of emotional distress exists when there is (1) extreme and

20

outrageous conduct by the defendant with the intention of causing,

21

or reckless disregard of the probability of causing, emotional

22

distress; (2) the plaintiff's suffering severe or extreme

23

"A cause of action for intentional infliction

emotional distress; and (3) actual and proximate causation of the

24
25
26
27

emotional distress by the defendant's outrageous conduct."
v. Conoco Cos., 196 Cal. App. 4th 191, 215 (2011).

"A defendant's

conduct is outrageous when it is so extreme as to exceed all

28
24

Kelley

1
2
3

bounds of that usually tolerated in a civilized community."

Id.

(internal quotation marks omitted).
Defendants' argument that Hubbard is entitled to summary

4

judgment is limited to the first element of McKinzy's claim for

5

intentional infliction of emotional distress.

6
7

A jury could find

that Hubbard's highly inappropriate comments, combined with the
alleged offensive touching, rise to the level of extreme or

8
9

United States District Court
For the Northern District of California

10

outrageous conduct.
Summary judgment in favor of Hubbard on McKinzy's claim for

11

intentional infliction of emotional distress is denied.

12

B. Negligent Infliction of Emotional Distress

13

Defendants' sole argument that McKinzy cannot establish a

14
15

claim against Hubbard for negligent infliction of emotional
distress is that she cannot show "negligent conduct" by Hubbard

16
17
18

because she cannot prove that he negligently touched her.

Amtrak

misunderstands the nature of the claim, which is that Hubbard's

19

conduct was intentional but that he was negligent with respect to

20

causing her emotional harm.

21

denied.

22
23
24

Summary judgment as to this claim is

C. Assault
An assault is an act committed by a defendant with the intent
to cause apprehension of an immediate injury coupled with a

25
26

reasonable apprehension of an immediate touching.

Defendants

27

correctly point out that the evidence forecloses a claim for

28

assault because McKinzy testified that she did not see Hubbard as
25

1
2

he approached her.

Summary judgment in favor of Hubbard as to the

assault claim is granted.

3

D. Battery

4

"A battery is any intentional, unlawful and harmful contact

5
6
7

by one person with the person of another . . . A harmful contact,
intentionally done is the essence of a battery."
King, 228 Cal. App. 3d 604, 611 (1991).

Ashcraft v.

"A contact is 'unlawful'

8
9

if it is unconsented to."

Id.

Accordingly, the elements for a

United States District Court
For the Northern District of California

10

claim for battery are (1) the defendant touched the plaintiff or

11

caused the plaintiff to be touched with the intent to harm or

12

offend him or her; (2) that the plaintiff did not consent to the

13

touching; (3) that the plaintiff was harmed or offended by the

14

defendant's conduct; and (4) that a reasonable person in the

15

plaintiff's situation would have been offended by the touching.

16
17
18
19

Judicial Council of California Civil Jury Instructions (2012),
CACI No. 1300.
Contrary to Defendants' assertion, McKinzy's testimony that

20

she did not see Hubbard touch her does not preclude her from

21

proving that he intentionally touched her body.

22

acknowledges that the intent necessary to constitute battery is

23
24

Defendants' brief

not intent to cause harm, but intent to do the act that causes
harm.

McKinzy also testified that when she asked why Hubbard

25
26
27

touched her, he responded that he did it because he felt like it.
That Hubbard denies having touched McKinzy in an improper manner

28
26

1
2

raises a material dispute as to whether a battery occurred.
Summary judgment as to McKinzy's battery claim is denied.

3

E. Punitive Damages

4

Defendants point to no authority for the proposition that the

5
6
7

FELA shields Hubbard from a claim for punitive damages made
against him as an individual.

Defendants assert in a conclusory

fashion that McKinzy will be unable to present evidence sufficient

8
9

to recover punitive damages.

Defendants have failed to

United States District Court
For the Northern District of California

10

demonstrate the absence of a material, factual dispute as to

11

whether McKinzy is entitled to punitive damages.

12

III. Motion to Continue Discovery

13
14
15

This Court's September 28, 2010 case management order set
June 28, 2011 as the deadline for fact discovery.

On June 28,

2011 McKinzy moved to continue the discovery deadline based on a

16
17
18

generalized assertion that her child has had health problems.

An

extension of the time period for discovery is unwarranted given

19

the limited nature of the dispute presented in this case, the

20

length of time allowed for discovery, McKinzy's lack of diligence

21

in pursuing discovery, and her vague explanation for why she was

22

unable to pursue discovery earlier.

23
24

McKinzy's motion for an

extension is denied.
IV. Motion for Relief from Pretrial Scheduling Order

25
26

Defendants request a sixty day continuance of the final

27

pretrial conference and the trial date based on its recent

28

substitution of counsel.

The facts in dispute in this case are
27

1

limited, as are the legal issues involved.

Furthermore,

2

Defendants substituted counsel at a late date by their own

3

volition, knowing the trial schedule.

4

a continuance has not been established.

5

relief is denied.

6
7

Accordingly, good cause for
Defendants' motion for

CONCLUSION
Amtrak and Hubbard's joint motion for summary judgment is

8
9

denied in part and granted in part.

Docket No. 48.

Summary

United States District Court
For the Northern District of California

10

judgment in favor of Amtrak is granted with respect to McKinzy's

11

claims for sex discrimination, breach of the covenant of good

12

faith and fair dealing, unlawful discharge in violation of public

13

policy, and negligent hiring, training and supervision.

14

claims against Amtrak for sexual harassment, and negligent and

15

McKinzy's

intentional infliction of emotional distress will proceed to

16
17
18

trial.

Summary judgment in favor of Hubbard is granted with

respect to McKinzy's claim for assault.

However, Hubbard's motion

19

for summary judgment is denied as to the claims for intentional

20

and negligent infliction of emotional distress, battery and

21

punitive damages.

22
23
24

McKinzy's motion to extend discovery is denied.

Docket 56.

Defendants' motion for relief from the pretrial scheduling order
is denied.

Docket No. 81.

25
26

The parties shall appear for a final pretrial conference on

27

January 11, 2012 at 2:00 pm.

28

2012 at 8:30 am.

Trial shall begin on January 23,

It appears that a jury trial has been waived by
28

1

failure to demand jury timely.

If either party disagrees, they

2

must brief the issue as a motion in limine.

3

requirements related to the pretrial conference are provided in

4

the Court's standing order for pretrial preparation, attached to

5

this Order.

6
7

Deadlines and

The case is referred to Magistrate Judge Jacqueline Scott
Corley to conduct a further settlement conference if she has any

8
9

availability between now and the trial date.

If she does, Judge

United States District Court
For the Northern District of California

10

Corley will inform the parties of the date and the parties must

11

attend.

12

IT IS SO ORDERED.

13
14
15

Dated: 12/23/2011

CLAUDIA WILKEN
United States District Judge

16
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22
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24
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26
27
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29