DISTRICT COURT PROPERLY ENTERED JUDGMENT FOR FIRED TOW-BOAT OPERATOR ON HIS 46 U.S.C.S. § 2114(A)(1)(B) WRONGFUL TERMINATION CLAIM. EVIDENCE SHOWED THAT EMPLOYER HAD IMPLICITLY ORDERED OPERATOR TO PERFORM DUTIES THAT OPERATOR BELIEVED WERE UNSAFE. SECTIO
LARRY GWIN, Plaintiff-Appellee, v. AMERICAN RIVER TRANSPORTATION COMPANY, Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2007 U.S. App. LEXIS 8215
April 10, 2007, Decided
PROCEDURAL POSTURE:Plaintiff, a fired tow-boat operator, filed a suit against defendant former employer alleging that it violated 46 U.S.C.S. § 2114(a)(1)(B) by terminating him for refusing to perform unsafe duties. The employer appealed after the United States District Court for the Southern District of Illinois denied its motions for judgment as a matter of law, for an award of costs under Fed. R. Civ. P. 54(d), and to compel payment of its experts' expenses.
OVERVIEW: The operator alleged that he was fired because he had refused to join, on safety grounds, a purportedly voluntary program that required all-river vessels to push six long tows on the Mississippi River. A jury returned a verdict for the operator but rejected the claims asserted by five co-workers. The employer argued: 1) that the operator's 46 U.S.C.S. § 2114(a)(1)(B) claim failed as a matter of law because he admitted that the employer had not explicitly ordered him to push the six long tows; 2) that as the prevailing party, it was entitled to a cost award under Fed. R. Civ. P. 54(d); and 3) that the parties had previously agreed to pay each others' expert fees. The court found error with regard to a portion of the district court's cost rulings, but otherwise found no error. The evidence showed that employer implicitly ordered the operator to push the six long tows by regularly asking him to do so, despite his prior refusals, and by providing poor performance evaluations based on his failure to push the tows. Fed. R. Civ. P. 54(d) was superseded by 46 U.S.C.S. § 2114(b). The employer was properly denied costs with regard to the § 2114(a)(1)(B) claims, but not as to other claims.
OUTCOME: The court affirmed the district court's judgment, but partially reversed its orders denying the employer's requests for costs. It remanded the case back and directed the district court to determine which of the employer's costs were solely allocable to claims that the operator and his co-workers had dismissed before the case was submitted to the jury and to determine whether the employer's expert's fees were reasonable.
