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WEATHERSBY v. UNION PACIFIC RAILROAD COMPANY

August 27, 2003

MARK D. WEATHERSBY, PLAINTIFF,
v.
UNION PACIFIC RAILROAD COMPANY, DEFENDANT



The opinion of the court was delivered by: Charles Norgle, District Judge

OPINION AND ORDER

Before the court is Defendant Union Pacific Railroad Company's Motion to Dismiss Count IV of Plaintiff's Second Amended Complaint brought pursuant to Federal Rule of Civil Procedure 12(b)(1). For the following reasons, Defendant's motion is granted.

I. INTRODUCTION*fn1

On April 1, 1997, Union Pacific Railroad Company ("Union Pacific") hired Plaintiff Mark D. Weathersby, an African-American male, as a trackman to work at the train yard in Dolton, Illinois. In June of 1999, Weathersby completed training and met all requirements needed to become a machine operator. In September of 1999, Weathersby made several bids on machine operator vacancies, all of which were denied. In each case, Union Pacific filled the machine operator [ Page 2]

positions with non-minority applicants — all with less seniority and qualifications than Weathersby. Several months later, Weathersby filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging racial employment discrimination for Union Pacific's failure to appoint minority applicants to the machine operator positions.

On November 10, 1999, Weathersby injured his right hand when he slipped on a truck bumper and fell while working in the train yard. On June 6, 2000, Weathersby injured his lower back while using a rail stretcher. Weathersby's lower back injury was further aggravated when he rode in a company truck containing inadequate shock absorbers. On June 7, 2000, Weathersby reported the June 6, 2000 injury to Union Pacific by submitting the required form.

On June 15, 2000, Union Pacific ordered Weathersby to complete another personal injury report for the June 6, 2000 incident. Weathersby executed his second personal injury report and submitted it to Union Pacific on the following day.

On June 16, 2000, Union Pacific withheld Weathersby from service pending an investigation on whether Weathersby properly reported his June 6, 2000 injury and followed instructions given on June 15, 2000. On October 2, 2000, Union Pacific terminated Weathersby's employment as a result of the investigation's findings.

On October 17, 2000, Weathersby received a "Notice of Right to Sue" from the EEOC.

On January 12, 2001, Weathersby filed this lawsuit against his former employer, Union Pacific. On February 27, 2003, after two years of litigation, Weathersby filed his Second Amended Complaint containing four counts. Counts I and II are brought pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 56, alleging negligence in connection with Weathersby's November 10, 1999 and June 6, 2000 injuries, respectively. Count III is brought pursuant to Title [ Page 3]

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"), alleging racial employment discrimination. Count IV is a state-law wrongful discharge claim alleging that Union Pacific wrongfully terminated Weathersby to avoid reporting Weathersby's November 10, 1999 and June 6, 2000 injuries to the Federal Railroad Administration ("FRA").

On March 27, 2003, Union Pacific filed its Motion to Dismiss Count IV of Weathersby's Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). Union Pacific's motion is fully briefed and before the court.

II. DISCUSSION

A. Motions to Dismiss for Lack of Subject ...


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