United States Court of Appeals,
Fifth Circuit.
No. 96-10913.
Michael SMITH; Amanda Kathryn Smith; Melissa Ann Smith,
Plaintiffs-Appellants,
v.
MEDICAL AND SURGICAL CLINIC ASSOCIATION, doing business as
Medical and Surgical Clinic Association, doing business as Advance
Occupational, doing business as Advance Occupational; et al.,
Defendants,
Burlington Northern Railroad Company, Defendant-Appellee.
July 31, 1997.
Appeals from the United States District Court for the Northern
District of Texas.
Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Appellant Michael Smith collapsed and suffered a head injury
after receiving a flu shot administered under the auspices of his
employer, Burlington Northern Railroad Co. Smith brought this
statutory negligence action against Burlington Northern under the
Federal Employers' Liability Act ("FELA" or "the Act"), 45 U.S.C.
§§ 51-60. The district court granted summary judgment for the
railroad, finding that Smith had failed to produce evidence that
his injury occurred within the scope of his employment, as FELA
requires. We hold that a genuine issue of material fact exists on
this question, and therefore reverse and remand.
I.
It is undisputed for purposes of this appeal that Burlington
Northern arranged for employees at its Fort Worth, Texas, office
1
building to receive influenza vaccines in the fall of 1993. It is
also undisputed that the flu shots were given on company premises,
during work hours, at no charge to the employees. Appellant was a
Burlington Northern manager who took part in the inoculation
program, receiving a flu shot on September 28, 1993. The shot was
given on the twenty-sixth floor of the Burlington Northern
building. After returning to the fifteenth floor, where his office
was located, Smith collapsed and struck his head. He claims that
the injury caused him to become permanently disabled.
Burlington Northern distributed two fliers to its employees
regarding the vaccination program. Smith conceded in his
deposition testimony that the flu shots were voluntary, but stated
that he felt strongly encouraged to accept a flu shot by the
company's fliers. Smith also testified that about two years
previously he had missed work because of a severe case of the flu,
and that he felt obligated as a good employee to submit to
inoculation to avoid another absence.
Viewing the evidence in the light most favorable to Smith, it
is clear that Burlington Northern planned, administered, and
promoted the flu shot program. The record reflects that the
railroad engaged a health clinic to vaccinate its employees at its
Fort Worth offices.1 The record also reflects that any employee
1
Smith's flu shot was given by a registered nurse employed by
Medical and Surgical Clinic Association, d/b/a Advanced
Occupational Health Care ("AOHC"). Smith's complaint named the
clinic as a defendant; it also named Dr. Thomas V. Mears, a
Burlington Northern vice president who helped initiate the flu shot
program. Smith does not appeal the district court's grant of
summary judgment in favor of AOHC and Dr. Mears.
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who was unable to attend a vaccination session on company premises
would be excused from work to receive a flu shot at the health
clinic.
Smith argues that based on this record, a jury could find that
Burlington Northern actively encouraged participation in the flu
vaccine program, and moreover, that the company was motivated to do
so, at least in part, by a self-interested desire to reduce
absenteeism. At the very least, he contends that a jury could find
that an employee in his position might reasonably believe that the
flu shot program was intended to reduce sick time, increase
productivity, and improve Burlington Northern's bottom line. As
discussed below, whether Smith was acting in the scope of his
employment when he accepted a flu shot depends on whether he might
reasonably have thought doing so would serve Burlington Northern's
interests.
II.
We review the district court's grant of summary judgment de
novo, applying the same standard as the district court. Thomas v.
N.A. Chase Manhattan Bank, 1 F.3d 320, 323 (5th Cir.1993) (citation
omitted); Unida v. Levi Strauss & Co., 986 F.2d 970, 975 (5th
Cir.1993) (citation omitted). Summary judgment is proper if the
pleadings and the record evidence, including affidavits and
deposition testimony, "show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." FED. R. CIV. P. 56(c). At this stage
we view the evidence in the light most favorable to the party
3
opposing the motion and draw all reasonable inferences in that
party's favor. Thomas, 1 F.3d at 323 (citation omitted); Unida,
986 F.2d at 975 (citations omitted). Nevertheless, summary
judgment is appropriate if the non-moving party fails to adduce
sufficient evidence to establish an essential element of his claim
on which he bears the burden of proof at trial. Unida, 986 F.2d at
975-76 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106
S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)).
III.
FELA provides that "every common carrier by railroad" engaged
in interstate commerce "shall be liable in damages to any person
suffering injury while he is employed by such carrier in such
commerce" where the injury arises from the negligence of the
railroad's officers, agents, or employees. 45 U.S.C. § 51. FELA
affords railroad employees their only remedy for injuries sustained
while engaged in interstate commerce. See New York Cent. R. Co. v.
Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045 (1917). To
prevail under the Act, a plaintiff must prove that (1) the
defendant is a common carrier by railroad engaged in interstate
commerce; (2) he was employed by the defendant with duties
advancing such commerce; (3) his injuries were sustained while he
was so employed; and (4) his injuries resulted from the
defendant's negligence. Fowler v. Seaboard Coastline R.R. Co., 638
F.2d 17, 19 (5th Cir. Unit B February 1981) (citing 45 U.S.C. §
51).
The only issue in this appeal is the third element, which
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requires proof that the plaintiff was injured in the scope of his
employment. See Wilson v. Chicago, Milwaukee, St. Paul, & Pac.
R., 841 F.2d 1347, 1351 (7th Cir.1988) (citations omitted). FELA's
"scope of employment" requirement has been interpreted broadly. It
is not limited to acts required or coerced by the employer.
Rather, the scope of employment encompasses "acts incidental to the
employment as well as the actual work." Fowler, 638 F.2d at 20.
In this circuit, "the proper test for scope of employment in a[ ]
FELA case [is] whether the act was one which the employer might
reasonably have foreseen and which the employee might reasonably
have thought necessary in the interest of or in the benefit of the
employer." Id. at 20 (citing Texas & Pac. Ry. v. Jones, 298 F.2d
188 (5th Cir.1962)).
Federal courts have held that FELA claimants were acting
within the scope of their employment while eating lunch on company
property; sleeping in accommodations provided by the employer
during a layover necessitated by railroad work; or riding in a
vehicle (but not commuting to or from work) when doing so is a
"necessary incident of [the] day's work." Rogers v. Chicago &
North Western Transp. Co., 947 F.2d 837 (7th Cir.1991) (citing
Fowler, 638 F.2d at 20; Mostyn v. Delaware, L. & W.R. Co., 160
F.2d 15, 17-18 (2d Cir.), cert. denied, 332 U.S. 770, 68 S.Ct. 82,
92 L.Ed. 355 (1947); Wilson, 841 F.2d at 1355). Accord Jones, 298
F.2d at 192 (employee injured while voluntarily assisting another
employee); Morris v. Pennsylvania R.R. Co., 187 F.2d 837, 841 (2d
Cir.1951) (employee killed while crossing tracks on his way to work
5
at defendant's freight yard).
At the opposite pole, "purely private activity totally
unrelated to the employment" is not within the scope of employment.
Fowler, 638 F.2d at 20. Put another way, FELA "cannot be extended
to cover activities not necessarily incident to or an integral part
of employment in interstate commerce. It obviously does not cover
activities undertaken by an employee for a private purpose and
having no causal relationship with his employment." Id. (quoting
Atchison, T. & S.F. R. Co. v. Wottle, 193 F.2d 628, 630 (10th
Cir.), cert. dismissed, 344 U.S. 850, 73 S.Ct. 89, 97 L.Ed. 661
(1952)). Thus, the family of an employee who was fatally injured
while riding his motorcycle on railroad property during a lunch
break could not recover under the Act. Id. 638 F.2d at 20.
Both parties accept the principles articulated in Fowler as
the governing legal standards. Our task is simply to apply these
principles to the summary judgment evidence. To help narrow our
inquiry, we reiterate that under Fowler, an activity falls within
the scope of employment if (1) the employer might reasonably have
foreseen it and (2) the employee might reasonably have thought it
necessary for the employer's benefit.
IV.
Burlington Northern does not argue that Smith's participation
in the flu shot program was unforeseeable. Rather, the issue is
whether an employee such as Smith might reasonably have thought it
necessary to accept a flu shot for the benefit of Burlington
Northern. If a jury could reasonably answer that question
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affirmatively, summary judgment is inappropriate. On the other
hand, if a reasonable employee must have realized that the flu
shots were purely gratuitous private benefits, summary judgment was
proper. The question, in other words, is whether Smith's flu shot
and ensuing injury bore some "causal relationship" to his
employment, or whether his vaccination was "a purely private
activity totally unrelated to the employment." Fowler, 638 F.2d at
20.
As we have already observed, Burlington Northern planned,
administered, paid for, and (arguably) promoted the vaccination
program. In addition, Smith submitted evidence which he contends
raises an inference that the railroad was motivated by a desire to
reduce absenteeism—or at least, that it was reasonable for him to
have thought so. This evidence consists of Smith's own affidavit
and deposition testimony and copies of two fliers distributed by
Burlington Northern to its employees.2
In his affidavit, Smith stated that the company offered the
flu shots and that his direct supervisor escorted him from his
office to receive his vaccination. Smith conceded that he was not
required to take a flu shot, but stated, "I felt strongly
encouraged to do so as a "good' employee."
2
The railroad downplays Smith's testimony by describing it as
"self-serving." In our adversarial system, self-serving statements
are neither unusual nor inherently suspect. It remains for the
jury to decide whether Smith's statements are credible and whether
they give rise to the inferences urged by Smith: that Burlington
Northern encouraged employees to avail themselves of the flu
vaccinations and that an employee could reasonably have concluded
that the company did so for its own benefit.
7
In his deposition testimony, Smith stated that he felt
obligated to submit to a flu shot because about two years
previously he had missed work because of a severe case of the flu.
He stated, "I ... felt that it was important, in order for me to be
a good employee and to avoid losing that kind of productivity, for
me to become vaccinated."
The first of the Burlington Northern fliers in the summary
judgment record announced, "TIME FOR 1993 FLU SHOTS." It stated
that vaccines would be available to all employees who chose to sign
up for them.3 The second flier bore the headline, "ROLL UP YOUR
SLEEVE AND BE BRAVE." It stated that flu vaccines would be given
free of charge to all employees who had previously signed up to
receive them. It also stated that employees who were unable to
attend one of the scheduled vaccination sessions on the premises
would be authorized to receive their flu shots at the clinic.
Burlington Northern correctly points out that Smith adduced no
evidence that the company was actually motivated by self-interest.4
However, Fowler does not require evidence of the employer's actual
motivation. Under Fowler, Smith need only produce evidence to
3
The same flier included descriptions of flu symptoms, the
vaccine, and possible side effects, as well as a warning that
certain employees should check with their physicians before being
vaccinated. Burlington Northern contends that the qualifying
language in the flier belies Smith's claim that employees were
encouraged to undergo inoculation.
4
Smith cites the deposition testimony of Dr. Thomas V. Mears,
the Burlington Northern vice president who helped initiate the flu
shot program, as evidence that the railroad was motivated by a
desire to reduce absenteeism during flu season. To the contrary,
Dr. Mears testified that the vaccinations were intended merely as
a convenience for the railroad's employees.
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support the inference that he might reasonably have thought that
flu shots were offered in part for the company's benefit.
Based on the summary judgment evidence, a genuine issue
exists as to whether an employee might reasonably have believed
that the flu shots were administered, in part, for Burlington
Northern's benefit. The company developed, administered, and
(viewing the evidence in the light most favorable to Smith)
promoted the vaccination program. Moreover, the company announced
that employees unable to attend the vaccination sessions at the
Burlington Northern office building would be excused from work to
receive flu shots at the AOHC clinic. Also, the fact that Smith's
supervisor accompanied him to the vaccination site might possibly
tend to support an inference that the company had an interest in
its employees being inoculated. In sum, we think a rational jury
could infer that an employee in Smith's position "might reasonably
have thought [the flu shots] necessary in the interest of or in the
benefit of the employer." See Fowler, 638 F.2d at 20.
V.
It may well be that in arranging and paying for the 1993 flu
shot program, Burlington Northern was motivated entirely by a
humane concern for the welfare of its employees. However, it is no
secret that illnesses such as the flu cost American corporations
billions of dollars annually in lost productivity and medical
insurance expenses. The railroad's decision to provide its
employees with free flu shots is no less commendable if it was
motivated by enlightened self-interest. Nevertheless, under FELA,
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if an employee might reasonably have thought that accepting a flu
shot was necessary for the benefit of Burlington Northern, then
submitting to inoculation was an act within the scope of
employment. We think the evidence adduced by Smith precludes
summary judgment on this question.
We conclude that summary judgment against Smith on the "scope
of employment" issue was unwarranted. The order of the district
court is REVERSED and the case REMANDED.
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