Gilbert v. Union Pacific Railroad Company

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL GILBERT, )

)

Plaintiff, ) 19 C 804

)

vs. ) Judge Gary Feinerman

)

UNION PACIFIC RAILROAD COMPANY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Michael Gilbert alleges that his employer, Union Pacific Railroad Company, is liable

under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq., for his on-the-job

injury and violated the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20109 et seq., by firing

him in retaliation for reporting his injury. Doc. 1. With discovery complete, Union Pacific

moves for summary judgment. Doc. 89. The motion is denied.

Background

The court recites the facts as favorably to Gilbert as the record and Local Rule 56.1

permit. See Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018). At

this juncture, the court must assume the truth of those facts, but does not vouch for them. See

Gates v. Bd. of Educ. of Chi., 916 F.3d 631, 633 (7th Cir. 2019).

Gilbert works for Union Pacific as a conductor on a commuter train operating between

Waukegan and Chicago. Doc. 95 at ¶ 2. On a Friday morning in October 2017, Gilbert was

working with two other conductors, Henry Martin and Joe Wright, on a train heading south to

Chicago. Id. at ¶ 10. A passenger, Mario Watson, who smelled strongly of alcohol, was

behaving in an unruly manner and threatening crew members. Id. at ¶ 11; Doc. 96 at ¶ 9. The

crew decided to remove Watson from the train, and Martin informed him that he would be

required to disembark at the Highland Park station. Doc. 95 at ¶ 12.

When the train reached the Highland Park station, Wright opened the train doors,

allowing Watson a clear path to disembark, and Gilbert exited the train and walked to the right.

Doc. 96 at ¶ 13. As Watson disembarked, he shouted at Gilbert that he would “whip his ass,”

clenched his fist, walked toward Gilbert, and “chest bumped” him. Ibid.; Doc. 95 at ¶ 14.

Gilbert stepped back and told Watson to back up, but Watson kept advancing. Doc. 96 at ¶ 13.

Gilbert then punched Watson and the two started fighting. Doc. 95 at ¶ 16. Gilbert ended up on

the ground and hit his head on the concrete. Doc. 96 at ¶ 14. In addition, Gilbert was punched in

the back of the head, briefly lost consciousness, and injured his left hand. Ibid.

Martin pulled Watson off of Gilbert, and the police arrived. Doc. 95 at ¶ 17; Doc. 96 at

¶ 8. Watson was still acting aggressively—shouting, cursing, pacing, and flailing his hands—

and continued to smell strongly of alcohol. Doc. 96 at ¶ 8. One of the police officers testified

that she felt that Watson was “potentially a threat” to her. Ibid. Gilbert was transported to

Highland Park Hospital, where he received a CT scan to evaluate his head injury. Doc. 95 at

¶ 18; Doc. 96 at ¶ 15. Prior to the incident, neither Union Pacific nor Gilbert knew that Wilson

posed a security threat. Doc. 95 at ¶ 36.

The stationmaster informed Sean McGovern, Union Pacific’s Director of Road

Operations, that Gilbert had been transported to the hospital after an altercation with a passenger.

Id. at ¶ 19. McGovern relayed the information to Jason Reed, Union Pacific’s Superintendent of

Commuter Operations, and then met Gilbert in the hospital. Ibid.; Doc. 96 at ¶¶ 16-17.

McGovern told Gilbert that he had done nothing wrong and had nothing to worry about, as he

was merely defending himself. Doc. 96 at ¶ 16.

After his discharge from the hospital that day, Gilbert went to Union Pacific’s office at

Ogilvie Transportation Center, where he spoke to a risk management representative, gave a

recorded statement, and completed a “report of personal injury” form. Doc. 95 at ¶ 24; Doc. 96

at ¶ 17. The risk management representative completed a “Railroad Employee Injury and/or

Illness Record” stating that Gilbert had sustained injuries to “multiple body parts bruise or

contusion” and received medical care, including “MRI, first aid to cut, cast, PT, Norco 5/325,

Valium 5mg.” Doc. 96 at ¶ 18.

Gilbert then discussed the incident with Reed, who said that he had done nothing wrong

by defending himself and that they would see each other on Monday. Id. at ¶ 17. Reed testified

that when he asked Gilbert if he was hurt in any way or if he felt he could not return to work,

Gilbert responded that he was not injured. Doc. 95 at ¶ 26. Gilbert also spoke to Craig

Lockhart, his supervisor, who completed a Manager’s Accident/Injury Report stating that he had

sustained injuries to multiple body parts, for which he had received an MRI and first aid.

Doc. 96 at ¶ 19. That night, McGovern, Reed, and Lockhart determined that the incident

warranted a formal investigation. Doc. 95 at ¶ 23.

The next day, a Saturday, Gilbert went to Immediate Care, where a physician told him

that he should not return to work due to his injuries. Id. at ¶ 27; Doc. 96 at ¶ 21. On Sunday

morning, Gilbert called the Union Pacific health department in Omaha to request a medical leave

of absence and was told that his request was temporarily approved, pending paperwork. Doc. 95

at ¶ 27. When Gilbert called commuter control on Sunday night to be relieved from duty on

Monday, he was informed that the necessary paperwork had not been received from Omaha and

that he would have to use sick time. Id. at ¶ 28.

Gilbert testified that, after he advised his managers that he was seeking a medical leave of

absence, their attitude toward him and the incident changed. Doc. 96 at ¶ 23. On Monday,

Lockhart told Gilbert that he was being pulled from service pending an investigation. Id. at ¶ 24.

Gilbert received a notice of investigation on November 3, informing him that he was charged

with a possible violation of three Union Pacific rules—Rule 1.6, “Conduct, Quarrelsome”; Rule

1.7, “Altercations”; and Rule 1.13, “Reporting and Complying with Instructions”—which could

result in dismissal. Doc. 95 at ¶ 30.

McGovern testified at his deposition that Union Pacific has a “zero tolerance” policy

concerning employees acting in a quarrelsome manner, and that the discipline for doing so with a

passenger is termination. Id. at ¶ 9. Reed testified at his deposition that Union Pacific has a

“zero tolerance” policy concerning violence in the workplace, but that an employee who became

involved in a “violent [or] threatening situation” as the victim would not be terminated. Ibid.;

Doc. 96 at ¶ 28. Union Pacific Manager Conrad Banda testified that “if a conductor is being

assaulted … they have a right to defend themselves.” Doc. 96 at ¶ 31.

In early December 2017, Union Pacific held an investigative hearing, and Gilbert was

terminated later that month based on the investigation’s findings. Doc. 95 at ¶¶ 31, 39. Reed

made the “ultimate decision” to terminate Gilbert, and McGovern participated in the

decisionmaking process. Id. at ¶ 40; Doc. 98 at 6.

In July 2019, the National Mediation Board found that the evidence did not support

Union Pacific’s conclusion that Gilbert had violated Rules 1.6, 1.7, or 1.13. Doc. 96 at ¶ 30.

Gilbert was reinstated and remains employed by Union Pacific. Doc. 95 at ¶ 2.

Union Pacific has an “Ejection of Passengers” policy, which states:

Ejection of our customers is a last resort. Every attempt must be made to

utilize calm and reason when handling these Situations. The following

guidelines must be used when it becomes necessary to eject a passenger:

If practicable you must enlist the assistance of a fellow train crew member.

Passengers may only be removed from the train when they are placed in the

custody of the police or another responsible authority.

Crew members will not warn a passenger that they have the option to leave

the train or be arrested.

Make every attempt to diffuse the situation. Reason with the customer when

possible.

Unless an emergency situation exists, do not inform the engineer or commuter

control with the customer present. This often increases the hostility and

tension of the situation.

‘Ejection/Confiscated Ticket Report’ must be filled out and submitted to

Commuter Control for anyone ejected or refused boarding.

Id. at ¶ 5. Prior to the incident, Gilbert did not receive any formal training on implementing the

policy or how to deal with aggressive or intoxicated passengers or passengers threatening

violence. Doc. 96 at ¶¶ 3-6.

Discussion

I. FELA Claim

The FELA “provides a federal remedy for railroad employees who are injured on the

job.” Abernathy v. E. Ill. R.R. Co., 940 F.3d 982, 988 (7th Cir. 2019). It states, in relevant part,

that “[e]very common carrier by railroad … shall be liable in damages to any person suffering

injury while he is employed … 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.” 45 U.S.C. § 51. “In so

providing, the FELA imposes on railroads a general duty to provide a safe workplace.”

Holbrook v. Norfolk S. Ry. Co., 414 F.3d 739, 741 (7th Cir. 2005) (internal quotation marks

omitted).

“To prove a claim under the FELA, a plaintiff must prove the traditional common law

elements of negligence, including foreseeability, duty, breach, and causation.” Abernathy, 940

F.3d at 988 (internal quotation marks omitted). “However, because it is meant to offer broad

remedial relief to railroad workers, a plaintiff’s burden when suing under the FELA is

significantly lighter than in an ordinary negligence case. A railroad-employer is liable where

‘employer negligence played any part, even the slightest, in producing the injury.’” Ibid.

(alterations and internal quotation marks and citations omitted) (quoting Rogers v. Mo. Pac. R.R.

Co., 352 U.S. 500, 506 (1957)).

Gilbert claims that Union Pacific negligently failed to provide reasonably safe working

conditions by failing to train him in “how to defuse aggressive passenger behavior and prevent

physical altercations.” Doc. 98 at 4-5. Union Pacific presses three grounds for summary

judgment on that claim: first, that Gilbert was not acting within the scope of his employment

when he was injured; second, that it was not foreseeable that Watson or other unruly passengers

might threaten conductor safety; and third, that Union Pacific’s training and policies are

sufficient to protect employees. Doc. 91 at 4-9. All three grounds are without merit.

A. Scope of Employment

The FELA “has uniformly been read as requiring a … claimant to prove that he was

injured while in the scope of his employment.” Wilson v. Chi., Milwaukee, St. Paul, & Pac. R.

Co., 841 F.2d 1347, 1351 (7th Cir. 1988). Because the FELA “does not use the terms

‘employee’ and ‘employed’ in any special sense,” the court “appl[ies] common law principles, as

interpreted by other federal courts,” to ascertain a plaintiff’s “scope of employment.” Id. at 1352

(internal quotation marks omitted). The “settled common law standard for defining scope of

employment” is provided by the Restatement (Second) of Agency: “To be within the scope of

the employment, conduct must be of the same general nature as that authorized, or incidental to

the conduct authorized.” Ibid. (quoting the Restatement (Second) of Agency § 229 (1957)); see

also Rogers v. Chi. & N. W. Transp. Co., 947 F.2d 837, 839 (7th Cir. 1991) (“[I]n order for an

activity to qualify as being within the scope of employment, it must be a necessary incident of

the day’s work or be essential to the performance of the work.”).

Union Pacific admits that Gilbert’s “job duties … include escorting passengers off the

train when necessary,” but argues that his getting into a fight with Watson was “[n]ot only … not

authorized or incidental to conduct authorized by Union Pacific, it was in direct contradiction to

Union Pacific’s rules and regulations.” Doc. 91 at 5. That argument fails on summary judgment

because the record, viewed in the light most favorable to Gilbert, allows a reasonable factfinder

to conclude that Gilbert’s conduct was authorized. According to Gilbert, both McGovern and

Reed told him that he had done nothing wrong by defending himself, Doc. 96 at ¶¶ 16-17, and

Banda testified that a conductor being assaulted has a right to defend himself, id. at ¶ 31.

Although Reed testified that Union Pacific has a “zero tolerance” policy concerning violence, he

added that an employee involved in a “violent [or] threatening situation” as the victim would not

be terminated. Doc. 95 at ¶ 9; Doc. 96 at ¶ 28. Moreover, the National Mediation Board found

that Gilbert had not violated any of the Union Pacific rules that he had been fired for violating,

further suggesting that he was at least implicitly authorized to defend himself from Watson while

escorting him off the train. Doc. 96 at ¶ 30.

Even if the altercation indisputably was unauthorized, Union Pacific still would not be

entitled to summary judgment, as a reasonable factfinder could conclude that the fight was

within the scope of Gilbert’s employment. As the Seventh Circuit has explained, “[e]ven if [the

employee’s behavior] was not authorized, or required, it could still have been within the scope of

his employment.” Wilson, 841 F.2d at 1355. Put another way, “the mere fact that an employer

has forbidden his servant to do something, or to accomplish a task in a particular way, is not

enough to defeat a finding that the act was within the scope of employment. This rule holds even

if the employer has specifically forbidden the employee to do the act in question.” Ellerth v.

Burlington Indus., Inc., 102 F.3d 848, 858 (7th Cir. 1996), vacated on other grounds by Jansen

v. Packaging Corp. of Am., 123 F.3d 490 (7th Cir. 1997). Thus, conduct falls outside of the

scope of employment “only if it is done with no intention to perform it either as a part of, or

incident to, a service for which the servant is employed.” Ibid. In deciding whether conduct fell

within the scope of an employee’s employment, “the court focuses on whether the employer had

the right to control the servant’s actions at the time of the tortious occurrence, not on whether it

expressly authorized the tort itself. It is plain that a principal would not instruct or authorize an

agent to perform tasks negligently, or fraudulently, or in a manner harmful to others, but a

finding that conduct was negligent, fraudulent, or harmful does not defeat a conclusion that it

was within the scope of employment.” Ibid.

A reasonable factfinder could conclude that Gilbert’s altercation with Watson was “part

of, or incident to, a service for which [Gilbert was] employed.” Ibid. As noted, Union Pacific

concedes that Gilbert’s job duties included escorting passengers off the train. Doc. 91 at 5. And

there is no dispute that the altercation occurred as Gilbert was escorting Watson off the train.

Doc. 96 at ¶ 13. Even if Gilbert violated Union Pacific’s policies by punching Watson in

response to his “chest bump,” a reasonable factfinder could conclude from the evidence that

Union Pacific “had the right to control [Gilbert’s] actions at the time.” Ellerth, 102 F.3d at 858.

After all, Union Pacific’s “Ejection of Passenger” policy sets forth the steps that conductors are

expected to follow in removing a passenger from the train. Doc. 95 at ¶ 5. It follows that the

question whether the altercation was within the scope of Gilbert’s employment cannot be

resolved on summary judgment.

B. Foreseeability

“For claims about unsafe work conditions, an essential element of a [FELA] claim is

foreseeability, or whether there were circumstances which a reasonable person would foresee as

creating a potential for harm.” LeDure v. Union Pac. R.R. Co., 962 F.3d 907, 910 (7th Cir.

2020) (internal quotation marks omitted). In other words, “[t]he plaintiff must show that the

employer had actual or constructive notice of th[e] harmful circumstances.” Ibid. (internal

quotation marks omitted).

Union Pacific argues that it had no reason to expect “disruptive behavior [from] Mr.

Watson or [] any generalized threat by passengers to trainmen” and had no “actual or

constructive knowledge of frequent issues with unruly or disruptive passengers.” Doc. 91 at 7.

That argument has no merit. Union Pacific’s “Ejection of Passenger” policy expressly envisions

that it may “become[] necessary to eject a passenger” from the train in a “hostil[e] and tens[e] …

situation” requiring the transfer of the passenger to police custody. Doc. 95 at ¶ 5. The

existence of this policy demonstrates that Union Pacific was aware that passengers might be so

disruptive or threatening that they must be removed from a train against their will. Moreover,

the policy requires employees to fill out an “Ejection/Confiscated Ticket Report” whenever a

passenger is ejected, suggesting that the need to eject passengers occurs with sufficient regularity

that Union Pacific has a dedicated form for documenting ejections. Ibid. Given all this, a

reasonable jury could conclude that Union Pacific was aware that unruly or disruptive passengers

might threaten crew members.

Union Pacific’s argument that it is not liable under the FELA because it could not have

specifically foreseen that Watson posed a threat is misplaced. “The test of foreseeability does

not require that the negligent person should have been able to foresee the injury in the precise

form in which it in fact occurred. Rather it is sufficient if the negligent person might reasonably

have foreseen that an injury might occur.” Mullahon v. Union Pac. R.R., 64 F.3d 1358, 1364

(9th Cir. 1995) (collecting cases). For instance, in Gallick v. Baltimore & Ohio Railroad Co.,

372 U.S. 108 (1963), the Supreme Court held that a plaintiff’s injury from being bitten by an

insect attracted to a stagnant pool of water was foreseeable to the defendant railroad company

because it “knew that the accumulation of the pool of water would attract bugs and vermin to the

area,” even though it could not foresee that a particular type of insect posed a safety risk. Id. at

118-19. It is likewise immaterial that Union Pacific did not foresee that Watson in particular

posed a threat to crew members, as it foresaw that unruly and belligerent passengers in general

could pose such a threat.

C. Breach of Duty to Provide a Safe Workplace

Last, Union Pacific contends that there is “no evidence” that it breached its duty to

provide a safe workplace, reasoning that its “safety training, rules, policies, and procedures … ,

if followed correctly, are []sufficient to protect employees.” Doc. 91 at 8. Specifically, Union

Pacific argues that Gilbert would not have been injured had he followed the “Ejection of

Passenger” policy’s requirement that “[p]assengers may only be removed from the train when

they are placed in the custody of the police or another responsible authority.” Ibid.; Doc. 95 at

¶ 5. This argument fails as well.

“Under the [FELA], an employer must not only promulgate safety rules but also enforce

those rules and may be held liable for the failure to do so.” 30 Corpus Jurus Secundum,

Employers’ Liability § 177 (March 2022). Moreover, “a FELA case should go to a jury if even

the slightest of facts support a finding of negligence.” Ruark v. Union Pac. R.R. Co., 916 F.3d

619, 625 (7th Cir. 2019). Gilbert testified that, prior to his injury, he did not receive formal

training on implementing the “Ejection of Passenger” policy or on handling belligerent and/or

intoxicated passengers. Doc. 96 at ¶¶ 3-6. A reasonable jury could find that Union Pacific failed

to exercise reasonable care by promulgating the “Ejection of Passenger” policy without training

its employees on how to implement it.

II. FRSA Claim

The FRSA prohibits a railroad company from retaliating against an employee for

reporting a workplace injury. See 49 U.S.C. § 20109(a)(4) (“A railroad carrier … may not

discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if

such discrimination is due, in whole or in part, to the employee’s lawful, good faith act done …

to notify … the railroad carrier … of a work-related personal injury … .”). To establish a prima

facie case of retaliation under the FRSA, a plaintiff “must show that: (1) he made an injury

complaint in good faith (i.e., engaged in a protected activity); (2) the rail carrier knew of the

complaint; (3) he suffered an adverse employment action; and (4) the complaint was a

contributing factor in the adverse action.” Armstrong v. BNSF Ry. Co., 880 F.3d 377, 381 (7th

Cir. 2018). “Once that showing is made, the rail carrier can still escape liability if it can show,

by clear and convincing evidence, that it would have taken the same action absent the protected

activity.” Ibid.

Focusing on the second element of Gilbert’s prima facie case, Union Pacific contends

that there is no evidence that Reed or McGovern, the supervisors who decided to terminate

Gilbert, knew that he had reported his injury or requested a medical leave of absence. Doc. 91 at

9-11. That matters, says Union Pacific, because “[a]lthough not discussed by the Seventh

Circuit, other federal courts have held that ‘[t]he knowledge relevant for a retaliation claim under

the FRSA must be tied to the decision-maker involved in the unfavorable personnel action.’” Id.

at 9 (quoting Conrad v. CSX Transp., Inc., 824 F.3d 103, 108 (4th Cir. 2016)). That is not the

correct legal standard in the Seventh Circuit. Specifically, in Armstrong, issued two years after

the Fourth Circuit’s decision in Conrad, the Seventh Circuit held that an FRSA retaliation

plaintiff must show only that “the rail carrier knew of the [plaintiff’s] complaint.” 880 F.3d at

381 (emphasis added). Circuit law therefore does not require Gilbert to prove, as part of his

prima facie case, that the particular individuals who terminated him knew about his injury report.

And it is undisputed that Union Pacific as an entity knew of Gilbert’s injury report and request

for medical leave, both of which he made through official Union Pacific channels. Doc. 95 at

¶ 27; Doc. 96 at ¶¶ 18-19.

Even if Seventh Circuit precedent required such knowledge on the part of Reed and

McGovern, Gilbert adduces circumstantial evidence sufficient for a reasonable factfinder to

conclude that they were aware of his injury report and medical leave request. On the day of the

incident, Gilbert reported his injury to a Union Pacific risk management representative and to

Lockhart, his supervisor, and both completed employee injury report forms reporting that Gilbert

had sustained injuries to “multiple body parts.” Doc. 96 at ¶¶ 17-19. It is reasonable to infer that

Reed and McGovern were made aware of those reports before deciding to terminate him,

especially because one of the reports was completed by Lockhart, who was part of a discussion

with Reed and McGovern the evening of the incident in which they decided to open a formal

investigation. Doc. 95 at ¶ 23. Moreover, Gilbert testified that Reed and McGovern had initially

assured him that he had done nothing wrong and had nothing to worry about, but that after he

requested a leave of absence, their attitude toward him and the incident changed. Doc. 96 at

¶¶ 16-17, 23. In addition, Reed’s comment to Gilbert after he was released from the hospital that

he would “see him on Monday” suggests that, at the time Reed assured Gilbert that he had done

nothing wrong, Reed did not expect Gilbert to request a medical leave of absence. Id. at ¶ 17.

This evidence gives rise to a reasonable inference that McGovern and Reed changed their

assessment of Gilbert’s altercation with Watson because they had learned about his injury report

and leave request.

Next, focusing on the fourth element of Gilbert’s prima facie case, Union Pacific argues

that there is no evidence that his injury report or leave request played any role in his termination.

Doc. 91 at 11-13. “[A] FRSA plaintiff need not show that retaliation was the sole motivating

factor in the adverse decision[; rather], the statutory text requires a showing that retaliation was a

motivating factor.” Armstrong, 880 F.3d at 382. This “‘contributing factor’ standard is lower

than those applied in other anti-discrimination contexts.” Ibid. “Evidence which may indicate a

link between the protected activity and the allegedly adverse actions include … a change in the

employer’s attitude toward the complainant after he or she engages in protected activity.” Cyrus

v. Union Pac. R.R. Co., 2015 WL 5675073, at *11 (N.D. Ill. Sept. 24, 2015).

Contrary to Union Pacific’s submission, there is sufficient evidence from which a

reasonable factfinder could conclude that Gilbert’s injury report and medical leave request were

at least a factor in his termination. As noted, according to Gilbert, both Reed and McGovern’s

behavior changed markedly after he reported his injury and requested a medical leave, from

assuring him that he had done nothing wrong and had nothing to worry about to determining that

his role in the incident warranted termination. That alone is sufficient evidence of pretext to

survive summary judgment. See ibid. (holding that a “change in the employer’s attitude toward

the complainant after he or she engages in protected activity” provides evidence of pretext). The

fact that the National Mediation Board found that Gilbert had not violated any rule that he had

been terminated for violating, Doc. 96 at ¶ 30, further suggests that Union Pacific’s justification

for firing him was pretextual. Accordingly, Gilbert has adduced evidence sufficient to satisfy the

fourth element of his prima facie case.

Last, Union Pacific argues that even if Gilbert has established a prima facie case, it is

clear from Union Pacific’s policies that he would have been terminated regardless of his injury

report and medical leave request. Doc. 91 at 13-15. That argument fails to persuade. As noted,

the National Mediation Board found that Gilbert had not violated any rule that he was terminated

for violating, and Gilbert was reinstated as a result of the Board’s finding. Doc. 95 at § 2;

Doc. 96 at § 30. It necessarily follows that it is not at all clear that Gilbert would have been

terminated under a properly neutral application of Union Pacific’s policy; in fact, the evidence

arguably supports the opposite conclusion. Moreover, there is substantial additional evidence

that Gilbert’s behavior did not warrant termination under Union Pacific’s policies, as Reed and

McGovern initially assured Gilbert that he had done nothing wrong, Reed testified that the “zero

tolerance” policy on violence does not apply to victims of a “violent [or] threatening situation,”

and Banda testified that a conductor being assaulted has a right to defend himself. Doc. 96 at

44 16-17, 28, 31. Union Pacific thus cannot show by clear and convincing evidence, at least on

summary judgment, that Gilbert would have been terminated regardless of his injury report and

medical leave request.

Accordingly, Gilbert’s FRSA claim survives summary judgment.

Conclusion

Union Pacific’s summary judgment motion is denied. This case will proceed to trial.

May 17, 2022 ___

United States District Judge

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