Lila Peck v. Union Pacific Railroad Co and United Transportation Union

Filing 49

MEMORANDUM DECISION AND ORDER granting in part and denying in part 38 Motion for Summary Judgment; denying 39 Motion to Strike; denying 41 Motion to Strike; denying 45 Motion to Strike. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LILA PECK,

Case No. 4:13-cv-00345-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
UNION PACIFIC RAILROAD CO. and
UNITED TRANSPORTATION UNION
DISCIPLINE INCOME PROTECTION
PROGRAM,
Defendants.

Before the Court are the following motions: (1) Defendant Union Pacific Railroad
Co.’s Motion for Summary Judgment (Dkt. 38); and (2) Plaintiff Lila Peck’s three
motions to strike (Dkts. 39, 41, and 45). The Court heard oral argument on January 15,
2015, and took the matter under advisement. For the reasons set forth below the Court
will (1) deny Peck’s motions to strike, (2) grant the Motion for Summary Judgment with
regard to Peck’s disparate treatment claim, and (3) deny the Motion for Summary
Judgment with regard to Peck’s retaliation claim.
BACKGROUND
Plaintiff Lila Peck claims she was retaliated against at her job for participating in
an EEO investigation and ultimately fired because she is a woman. She has sued her
MEMORANDUM DECISION AND ORDER - 1

employer, Union Pacific. She brings claims for retaliation and disparate treatment under
Title VII.
Peck started training to become a Union Pacific Train Service employee in
Pocatello, Idaho on June 6, 2011. Pl’s SUF ¶ 2, Dkt. 40. She was part of a training class
of ten. Id. She was the only female member of the training class. Id. As a trainee, Peck
was not considered an official employee. All trainees must first complete a 60-day
“probationary period” before becoming an employee and earning the right to obtain union
benefits. Def’s SOF ¶ 2, Dkt. 38-1.
On August 5, 2011, Peck overheard a vulgar conversation concerning strip clubs
initiated by a classmate, Jason Martin. Pl’s SUF ¶ 4. Two other trainees, Dave Williams,
and Clint Knickrehm, also participated in the conversation. Id. Peck did not report the
incident to Union Pacific’s EEO compliance office, but an instructor named Jerome
Kasczinski did. Id. A few days after the incident, Carol Gleason from the EEO
Department called Peck and asked her if she knew anything about the strip-club
conversation. Peck, fearing she would lose her job if she did not talk, told Ms. Gleason
the names of those who participated in the conversation and what each participant said
during the conversation. Def’s SOF ¶ 7, Dkt. 38-1. As a result of the conversation, Jason
Martin’s job application was rejected. Id. ¶ 8.
Following Jason Martin’s rejection as a job applicant, Peck’s fellow trainees, Dave
Williams, Clint Knickrehm, and Todd Aslett gave Peck “the cold shoulder.” Id. ¶ 9.
Specifically, Peck said that Todd Aslett “glared daggers” at her on two occasions; Clint
MEMORANDUM DECISION AND ORDER - 2

Knickrehm shouted, “Yeah, we don’t want any EEO violations here” before an EEO
training video; and other Union Pacific employees avoided her and asked her whether she
turned Jason Martin in for his vulgar conversation. Id.
On August 16, 2011, a couple of weeks after Peck overhead this conversation, she
was placed on furlough because of a downturn in the economy. Id.¶ 12. Peck had hoped
the whole matter would “just blow over” while she was on furlough. Peck Dep. 82:20-25,
Dkt. 40-4. But when Peck returned to work nearly a year later, in July 2012, people at the
railroad continued to question her about the incident. Id. at 83:20-88:24. And, according
to Peck, her supervisors did nothing to dispel the belief that Peck was somehow
responsible for Jason Martin being fired. Pl’s SUF ¶ 8. In fact, Peck says that the
manager of Railroad Operations, Gary Pfinster, actually led others to believe that Peck
had turned Jason Martin into the EEO Compliance office. Id. And in the context of a
return to work class, Pfinster made comments and tolerated comments that insinuated that
Peck had snitched on Jason Martin. Id.
Finally, tired of the perceived harassment, Peck called the Union Pacific Values
Line to complain on October 30, 2012. Id. ¶ 7. In her complaint, Peck apparently not only
implicated her peers in the harassment but also accused two superiors, Gary Pfinster and
Jack Huddleston, of contributing to the harassment. Id. ¶ 9. However, before anything
could be done about her Values Line complaint, Peck was involved in a derail incident.
The derail incident occurred on November 5, 2012. Union Pacific had assigned
Pack to work as a student trainee with a crew in Idaho Falls. Pl’s SUF ¶ 10. It was her
MEMORANDUM DECISION AND ORDER - 3

first night working with this crew. Id. Matthew K. Wilson was the conductor in charge of
the work, and he had apparently heard from random employees that he should be careful
in the way he talked or behaved around Peck. Id. At the start of the shift, Wilson told
Peck to just observe and see what they do on the job. Id.
Peck maintains that the Idaho Falls crew was the worst crew she had worked with.
Id. ¶ 11. The crew constantly broke rules, such as jumping off a moving locomotive,
throwing a switch when cars were still moving, stopping too close to a switch and failing
to observe proper red zones. Id. Peck objected, but Wilson told her that they liked to
hurry and get the job done and she should ignore their safety violations. Id.
At approximately 8:05 p.m. a collision and derailment occurred in the “malt yard”
south of Idaho Falls. Id. ¶ 12. The crew’s locomotive and one car were backing south off
the main line to pick up some cars. Id. As the locomotive and car approached the 411
switch, Wilson told the engineer to stop, but he jumped off the car while it was still
moving. Id. Peck, however, waited for the car to stop before jumping off, and by the time
she climbed off the car and had gone around to the end of the car, Wilson had already
thrown the 411 switch and was hurrying up the line of switches toward the cars they
intended to pick up. Id. Peck tried to keep up with Wilson but she had not yet caught up
when she heard him radio the engineer to back up. Id. The engineer apparently backed up
at an excessive rate of speed, and Wilson had thrown the 411 switch the wrong way. Id.
This caused the locomotive and car to back into a line of cars on the 411 siding, which

MEMORANDUM DECISION AND ORDER - 4

derailed and damaged a car. Id. Wilson admitted he threw the switch the wrong way. Id.
He admitted responsibility for the derailment. Id.
At the time of the derailment, Peck had completed her training but had not yet
completed her 60-day probationary period. So she was not yet an official Union Pacific
employee.
On November 7, 2012, Gary Pfinster and Ricky Wells decided that Peck’s job
application should be rejected. Pl’s SUF ¶ 13. Pfinster called Melissa Schop of the
Union Pacific EEO office seeking immediate approval of his decision to reject Peck’s
application. Id. Melissa Schop memorialized the conversation in an email to Carol
Gleason, and Pfinster admitted it was accurate. Id. The email specifically mentioned that
Peck had filed a previous EEO complaint:
Carol,
Gary called me earlier today looking for approval for a probationary
termination. He couldn't reach you and was looking for an immediate
decision. Lila Peck is a Switchman in Pocatello. My understanding is she
has filed a previous EEO complaint. She recently had a major rules
violation. They are disciplining the conductor who was also involved. She
has other performance problems as well. She has previously failed a rules
exam. She has not yet qualified as a Conductor and is the last in her class to
do so. There is also another employee who has violated the same rule. Gary
is currently checking if he is within his probationary period. If so, he will
also be terminated. If not, he will be disciplined.
I gave my ok for the termination. Let me know if you have any questions.
Nov. 8, 2012 Email from Melissa Schop to Carol Gleason, Dkt. 40-5 at 46. The rules
Pfinster said Peck had broken were Rules 6.5 and 8.2. Id. at ¶ 13. Rule 6.5 deals with
shoving movements, and rule 8.2 deals with switching. Id.
MEMORANDUM DECISION AND ORDER - 5

Three other Union Pacific employees, including Wilson were involved in the
derailment. Engineer Layne W. Clark was operating the locomotive at an excessive rate
of speed at the time of impact, and Brakeman Marvin L. Dixon was present at the time of
the derailment. Id. ¶¶ 28-29. All three were charged in the incident. The charges were
identical for each:
You allegedly failed to ensure switches were properly aligned prior to
making a shoving movement and failed to control shoving movement by
not being prepared to stop within half the range of vision for switch aligned
improperly, resulting in collision with standing equipment causing
derailment and damage to company property.
Id. ¶ 30.
Wilson admitted responsibility for the derailment and was disciplined by having to
take five days of paid training. The charges against Clark were waived. The charges
against Dixon were dropped. Id. ¶ 31.
On November 9, 2012, Union Pacific sent Peck a letter rejecting her application
for employment. Wells Letter, UPPR’s Ex. I, Dkt. 26-9. At his deposition, Pfinster
testified that it is “standard practice” to terminate the employment of employees who are
still on probation and who are “involved” with serious rule violations. Pfinster defined
“involved” as simply being there or “on the ground.” Pl’s SUF ¶ 19. Neither Wells nor
Pfnister knew that Plaintiff had called the Values Line to complain before the decision
was made to reject her application. Id. ¶ 27. But they both knew that Peck had
participated in the EEO investigation that led to Jason Martin’s termination.

MEMORANDUM DECISION AND ORDER - 6

Peck alleges that Union Pacific rejected her application in retaliation for her
participation in the EEO investigation relating to the strip-club comments and her later
Values Line complaint. She also claims she was disparately treated due to her gender as
the only woman on the crew who did not continue working at Union Pacific following
the derail incident. Peck brings claims for retaliation and disparate treatment based on
gender. Union Pacific moves for summary judgment on each of her claims.
ANALYSIS
1. Motions to Strike
Peck moves to strike various defense exhibits, including her own deposition, as
well as Pfinster’s deposition, in addition to various other documents, because they are not
properly authenticated or because they are hearsay. At the summary judgment stage, the
Court does not focus on the admissibility of the evidence's form. It instead focuses on the
admissibility of its contents. Block v. City of Los Angeles, 253 F.3d 410, 418–19 (9th
Cir.2001) (“To survive summary judgment, a party does not necessarily have to produce
evidence in a form that would be admissible at trial, as long as the party satisfies the
requirements of Federal Rules of Civil Procedure 56.”); Fed. Deposit Ins. Corp. v. N.H.
Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991) (“the nonmoving party need not produce
evidence in a form that would be admissible at trial in order to avoid summary
judgment.”) (internal quotation marks and citation omitted). The Court finds that all of
the exhibits Peck seeks to strike could be presented in an admissible form at trial.

MEMORANDUM DECISION AND ORDER - 7

In addition, Peck seeks to strike Union Pacific’s Exhibit F, arguing that it is
irrelevant. Exhibit F is a Public Law Board document, which affirms Union Pacific’s
decision to reject the application of Casey Allen, an employee with a very similar
employment history to Peck’s. The Court, however, did not consider this document in
deciding Union Pacific’s summary-judgment motion, so this particular issue is moot.
The Court will otherwise deny Peck’s motions to strike.
2. Retaliation
Peck claims she was harassed and ultimately fired because she participated in the
EEO investigation that led to the termination of a fellow classmate and because she made
an EEO report. In order to prevail on a retaliation claim, a plaintiff must first establish a
prima facie case of retaliation by showing that: (1) she engaged in a protected activity, (2)
she was subjected by her employer to adverse employment action, and (3) a causal link
exists between the two. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir.1982).
“Essential to a causal link is evidence that the employer was aware that the plaintiff had
engaged in the protected activity.” Id.
Peck presents no evidence that either Pfinster or Wells knew that she had made a
Values Line complaint. Without evidence that the terminating managers were aware that
Peck had made the Values Line complaint, Peck cannot establish a causal link between
her Values Line complaint and the decision to reject her employment action. Id. She
therefore cannot rely on the Values Line complaint to establish her prima facie case of
retaliation.
MEMORANDUM DECISION AND ORDER - 8

Peck, however, also participated in an EEO investigation, which also qualifies as
protected activity. Peck participated in this investigation in August 2011, but she was not
terminated until November 2012. Union Pacific therefore argues that Peck cannot show a
causal link between her participation in the EEO investigation and the rejection of her
employment application because more than a year passed between the two events.
But temporal proximity between the protected activity and the adverse
employment action is not the only way to prove causation. Evidence of a pattern of
retaliatory conduct can be very persuasive evidence of retaliatory motive. Here, Peck has
submitted evidence suggesting that the allegedly retaliatory conduct began as soon as she
was forced to participate in the EEO investigation, and it continued until her employment
application was rejected. Indeed, even though there is no proof Pfinster or Wells knew
about the Values Line complaint, the fact Peck made the complaint shows that she, at the
very least, felt that Pfinster, as well as others, were retaliating against her because she
participated in the EEO investigation of Jason Martin, and this alleged retaliation
continued up until her termination.
Just as importantly, Pfinster mentioned Peck’s participation in the EEO
investigation in his conversation with Melissa Schop regarding the reasons for Peck’s
discharge. Although Pfinster defends his mentioning of Peck’s conduct to ensure that
Peck’s termination would not run afoul of any rules, regulations, or statutes, a reasonable
juror could conclude that Pfinster factored in Peck’s protected activity when deciding to

MEMORANDUM DECISION AND ORDER - 9

reject her employment application. At the very least, his mentioning Peck’s EEO conduct
demonstrates her participation in the EEO investigation was not forgotten.
Given these circumstances, the Court finds that questions of fact exist on Peck’s
retaliation claim, and will therefore deny summary judgment on that claim.
3. Disparate Treatment
Peck also alleges that she was terminated because of her gender. To establish a prima
facie case of disparate treatment under Title VII, Peck must show that she (1) belongs to
a protected class, (2) was qualified for her position, (3) was subject to an adverse
employment action, and (4) similarly-situated male employees were treated more
favorably. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).
Three men and one woman – Peck – were involved in the derail incident that led to
the rejection of Peck’s employment. But only Peck, the sole female member of the crew,
lost her job because of the derailment. At first glance, it therefore appears that Peck has
established a prima facie case. Union Pacific, however, responds that Peck was not
similarly situated to the other male employees because she was a probationary employee
while the men involved were union employees.
Individuals are similarly situated for purposes of a Title VII discrimination claim
when “they have similar jobs and display similar conduct.” Vasquez v. Cnty. of Los
Angeles, 349 F.3d 634, 641 (9th Cir.2003). The “employee's roles need not be identical;
they must only be similar in all material respects.” Hawn v. Exec. Jet Mgmt., Inc., 615
F.3d 1151, 1157 (9th Cir.2010) (emphasis added) (internal citations omitted).
MEMORANDUM DECISION AND ORDER - 10

The record in this case demonstrates that Peck was performing the same or similar
work to the other three members of the crew and was “involved” in the derailment to the
same extent as the other crew members in that “she was there,” but only she lost her job
while the male employees only received minimal discipline. However, the facts also
demonstrate that Peck was a probationary employee-in-training and therefore could be
terminated for any reason. By contrast, the other crew members were union employees
and were entitled to certain protections under the collective bargaining agreement, which
Peck did not enjoy. Because of this key distinction between Peck and the other crew
members, the Court finds that Peck and the other crew members were not similar in all
material respects. See Moran v. Selig, 447 F.3d 748, 756 n. 14 (9th Cir.2006) (stating
Plaintiffs were not similarly situated in all material respects to employees who had
worked long enough to qualify for benefits).
Indeed, in an unpublished decision, the Ninth Circuit considered this very issue and
expressly held that probationary employees are not similarly situated to permanent
employees:
Burgess, [the plaintiff], argues that the distinction between probationary
and permanent employees is insignificant. Case law, however, supports the
contrary conclusion (citing cases holding probationary employees not
similarly situated to permanent employees).
“[I]t is the plaintiff's task to demonstrate that similarly situated employees
were not treated equally.” [Citation omitted]. Burgess, however, presented
no evidence that similarly situated probationary employees outside of his
protected class were treated differently. Rather, the evidence he presented
to the district court concerned permanent employees, who were not
similarly situated to Burgess. Burgess failed to present a prima facie case of
MEMORANDUM DECISION AND ORDER - 11

disparate tr
d
reatment an the dis
nd
strict court properly entered s
t
summary
ju
udgment on that issue.
n
Burgess v. State of Washington Dept. of Corrections No. 98-35
n
C
s,
5417, 1999 WL 97418
82,
*3 (9th. Cir. Oct. 22 1999). As in Burge this Cou finds tha Peck, wh was a
2,
A
ess,
urt
at
ho
probatio
onary emplo
oyee, has fa
ailed to pres a prima facie case of disparat treatment
sent
a
te
t.
The Cou therefore will enter summary judgment in favor of U
urt
e
n
Union Pacifi on Peck’s
fic
disparate treatment claim.
e
ORDER
O
IT IS ORDE
T
ERED that
t:
1. Defendant Union Pacif Railroad Co’s Moti for Sum
D
U
fic
d
ion
mmary Judg
gment (Dkt. 38)
is GRANTE in part and DENIED to the ex
ED
a
xtent indicat in this d
ted
decision; an
nd
2. Plaintiff Lil Peck’s th motions to strike (Dkts. 39, 41, and 45) are DENIE
P
la
hree
s
ED.

DAT
TED: Marc 3, 2015
ch

__________
__________
_____
___
B. L
Lynn Winm
mill
Chief Judge
ited
District Cou
urt
Uni States D

MEMORA
ANDUM DECIS
SION AND ORDER - 12
R