Elmer F. BOCK, Administrator of the Estate of Phyllis-Bock, Deceased, Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Southern Pacific, Appellee.
No. 97-4076
United States Court of Appeals, Eighth Circuit
June 30, 1999
181 F.3d 920
Submitted: January 13, 1999. Filed: June 30, 1999.
Although we have held that a lack of recourse within an employer‘s organization can contribute to a case for constructive discharge, see Howard v. Burns Brothers, Inc., 149 F.3d 835, 842 (8th Cir. 1998), in this case Ms. Tork sought review beyond her direct supervisor (who issued the performance evaluations) for only one incident; on the occasion of the second written evaluation she quit minutes after receiving it, having spoken to her supervisor briefly. She failed to seek review of her supervisor‘s action through either the human resources department or the employee assistance program, both of which avenues were available to her.
We believe that it would not have been reasonable for Ms. Tork to believe that she was without recourse. See Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997) (“[i]f an employee quits because she reasonably believes there is no chance for fair treatment, there has been a constructive discharge“). Furthermore, Ms. Tork had an obligation to act reasonably by not assuming the worst and by not jumping to conclusions too quickly. Tidwell, 93 F.3d at 494. We think that quitting her job after a few incidents of allegedly unfair criticism and one incident of denied recourse, if indeed she was denied recourse, was jumping to conclusions too quickly. “An employee who quits without giving [the] employer a reasonable chance to work out a problem has not been constructively discharged.” Id.
II.
Ms. Tork asserts in her brief that new evidence, in the form of an affidavit from Virginia Cleary, who was allegedly terminated because of her age, further tended to prove the intolerability of Ms. Tork‘s work conditions. At oral argument, however, Ms. Tork‘s counsel conceded that Ms. Cleary‘s testimony would tend to show only that the reason for the conditions to which Ms. Tork was subjected was linked to Ms. Tork‘s age. We therefore do not consider this evidence in deciding whether the alleged conditions were sufficiently intolerable to make out a submissible case of constructive discharge.
The only new evidence that Ms. Tork points to in her brief as supportive of her motion under
III.
For the reasons stated, we affirm the judgment of the district court.
Association of American Railroads, Amicus on Behalf of Appellee.
Frederick S. Ursery, Little Rock, AR, argued (William H. Sutton and Clifford W. Plunkett, on the brief), for Appellee.
Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
HANSEN, Circuit Judge.
Elmer F. Bock, the administrator of the estate of Phyllis Bock, appeals from the district court‘s1 grant of summary judgment in favor of the St. Louis Southwestern Railway in Bock‘s wrongful death action. We affirm.
I.
The relevant facts, viewed in the light most favorable to Bock, are as follows. On March 10, 1992, Phyllis Bock was driving her car on Main Street in Roe, Arkansas. Main Street intersects railroad tracks owned by St. Louis Southwestern Railway Company (Southwestern). As Phyllis Bock crossed the tracks, a Southwestern train struck and killed her. At the time of the accident, crossbucks provided the sole protection at the Main Street crossing. Crossbucks are X-shaped signs that read “RAILROAD CROSSING” in reflectorized letters. The crossbucks were installed in 1980 as part of a statewide initiative to improve the safety of all railroad grade crossings. The United States Department of Transportation-Federal Highway Administration approved the expenditure of federal funds for use in the Main Street project.
In 1988 a diagnostic team organized by the Arkansas Highway Department inspected the Main Street crossing and recommended that the crossing be protected by lights and automatic gates. The federal government provided 90 percent of the cost, while Southwestern paid the City of Roe‘s 10 percent share. Southwestern received final authority to upgrade the crossing in September of 1991, and completed the project in March 1992, shortly after the accident that killed Phyllis Bock.
Elmer Bock, Phyllis Bock‘s father and the administrator of her estate, filed this wrongful death action in federal court on
II.
We review the district court‘s grant of summary judgment de novo, viewing the evidence in the light most favorable to Bock, the nonmoving party. Bryan v. Norfolk and Western Ry. Co., 154 F.3d 899, 901 (1998), cert. dismissed, 525 U.S. 1119, 119 S.Ct. 921, 142 L.Ed.2d 899 (1999). We will affirm the district court‘s judgment only if there are no genuine issues of material fact and Southwestern is entitled to summary judgment as a matter of law. Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
A. Abnormally Dangerous Crossing
Bock first argues that his wrongful death action is not preempted because the Main Street crossing was abnormally dangerous and Southwestern used inadequate warning devices to protect the crossing. The district court granted Southwestern‘s motion for summary judgment, holding that Bock‘s negligence claim was preempted by federal law.
The Supreme Court has held that when certain federal regulations issued by the Secretary of Transportation governing the protection devices to be placed at railroad grade crossings apply, see
“Federal regulations are applicable if federal funds have been expended for the installation of the warning devices at the crossing. ‘Federal funding is the touchstone of preemption in this area.‘” Bryan, 154 F.3d at 903 (quoting Elrod v. Burlington Northern R.R. Co., 68 F.3d 241, 244 (8th Cir.1995)). There is no dispute in this record that federal funds were used to install the crossbucks at the Main Street crossing. Accordingly, Bock‘s claim should be preempted. Nonetheless, Bock argues that his claim is not preempted because the crossbucks were inadequate in view of
Preemption is not a water spigot that is turned on and off simply because a later decision is made to upgrade a crossing. As we noted above, our cases clearly hold that once a federally funded warning device is installed and operational—the crossbucks in this case—preemption occurs. See Bryan, 154 F.3d at 904; Elrod, 68 F.3d at 244; St. Louis Southwestern Ry. Co. v. Malone Freight Lines, Inc., 39 F.3d 864, 867 (8th Cir.1994), cert. denied, 514 U.S. 1110, 115 S.Ct. 1963, 131 L.Ed.2d 854 (1995). The fact that a better warning system is desirable is simply irrelevant. “[T]he issue is not what warning system the federal government determines to be necessary, but whether the final authority to decide what warning system is needed has been taken out of the railroad‘s and the state‘s hands under
B. Delayed Installation
Bock next argues that Southwestern negligently delayed the installation of the improved safety devices at the Main Street crossing. In other words, according to Bock, Southwestern is liable for failing to promptly install lights and gates after the determination to install such devices was made. Bock dedicates the majority of his brief on this topic to the question of whether such a cause of action exists under Arkansas law. We do not reach that question because we hold that Bock‘s negligent delay claim is also preempted by federal law.
Bock‘s argument is little more than an attempt to make an end run around the preemption doctrine. As we explained above, once preemption occurs, it is not suspended or terminated by a subsequent governmental determination regarding the adequacy of the crossing. When, as here, a plaintiff brings a state tort cause of action for harm sustained at a railroad crossing that has federally funded, installed, and operational warning devices, that state cause of action is preempted. That another, improved warning system was later planned is simply irrelevant. See Armijo, 87 F.3d at 1192 (“The mere fact that the federal government has changed its opinion regarding what warning devices are needed at a particular crossing at some point after making a prior determination a lesser warning system is sufficient is of no real significance....“). Whether Arkansas‘s common law recognizes a tort cause of action for negligent delay is likewise irrelevant because that cause of action would also be preempted. Due to preemption, the railroad was no longer duty-bound, in the tort sense, for causes of action based on the adequacy of the crossing safety devices. After the federally funded crossbucks were installed and operational, preemption absolved Southwestern of any state law obligation to upgrade the crossing sua sponte. Cf. Malone, 39 F.3d at 867 (“Before preemption, the public is protected by a railroad‘s state common-law duty of care. After installation of federally mandated warning devices, the public is protected by those devices.“). Because Bock‘s negligent delay claim is founded on the premise that the then existing crossbucks inadequately protected the crossing, his claim is preempted. This case is markedly different from the situation presented in Malone. In that case, preemption had not occurred because the original federally funded warning devices were not yet in-
In sum, we hold that Bock‘s negligent delay claim is preempted.
III.
Accordingly, we affirm the district court‘s judgment.