*

The Honorable James G. Carr, Unit

Northern District of Ohio, sitting by desi

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

MARK S. MOUNTS,

Plaintiff-Appellant,

v.

GRAND TRUNK WESTERNRAILROAD,

Defendant-Appellee.

Appeal from the United St

for the Southern District of 

No. 98-00036—Joseph P. Kin

Argued: Decembe

Decided and Filed: Ja

Before: COLE and GILMAN, 

District Jud
2 Mounts v. Grand Trunk Western R.R. No. 99-3151

_________________

COUNSEL

ARGUED: Paul Kevin Hemmer, CARROLL, UCKER &HEMMER, Columbus, Ohio, for Appellant. Julie L.Atchison, PORTER, WRIGHT, MORRIS & ARTHUR,Columbus, Ohio, for Appellee. ON BRIEF: Paul Kevin

Hemmer, CARROLL, UCKER & HEMMER, Columbus,Ohio, for Appellant. Julie L. Atchison, Patrick Jerome Smith,PORTER, WRIGHT, MORRIS & ARTHUR, Columbus,Ohio, for Appellee. 

_________________

OPINION

_________________

R. GUY COLE, JR., Circuit Judge. The sole issue on

appeal is whether Mark S. Mounts, a lifetime railroademployee who can no longer hold his job because of hearingloss, filed suit against his former employer within the threeyear statute of limitations of the Federal Employers’ LiabilityAct (“FELA”), 45 U.S.C. § 51 et seq. We find that he didnot, and therefore AFFIRM the district court’s grant ofsummary judgment for the defendant employer, Grand TrunkWestern Railroad. 

I.

Mounts is a 51-year-old man who has been a railroad

employee all his career. After working as a brakeman for theNew York Central Railroad for ten years, Mounts beganworking for Grand Trunk Western (“GTW”) in March 1978.During his employment with GTW, which was primarilybased in Ohio, he was exposed to a variety of loud noises inconnection with his work, such as noises from brake exhaust,radios, yard retarders, and whistles. Mounts attributes hissubsequent hearing loss to these noises on his job sites. 

No. 99-3151 Mounts v. Grand occur within the statutory perioBowen, & Bally, 882 F.2d 104(discussing Ohio cases that apply attorneys), there has been no indFELA claims. In fact, in Kichline, follow, the Third Circuit rejected See Kichline, 800 F.2d 356, 360 Fowkes v. Pennsylvania R.R., 264 which arguably applied the docRailroad Passenger Corp. v. KroApp. 1993) (reversing lower courcause of action did not accrue unaction ended and citing, at 495 n.9, rejecting this approach). We declitort doctrine to this case, because Minjury and its cause long before produce evidence of a new or sepalleged continuing conduct of GTW

CONCLUS

In sum, the FELA statute of li

genuine issue of material fact exiscause of action accrued before thAFFIRM the district court’s grant defendant GTW.
10 Mounts v. Grand Trunk Western R.R. No. 99-3151

governing malpractice claim under Federal Tort Claims Actbegins to run when claimant discovers or should have discoveredthe acts constituting the alleged wrong), cert. denied, 454 U.S.

967 (1981); Herm v. Stafford, 663 F.2d 669, 682 (6th Cir. 1981)

(statute in securities fraud case begins to run when the fraudshould have been discovered); Ott v. Midland-Ross Corp., 600

F.2d 24, 27 (6th Cir. 1979) (Age Discrimination in EmploymentAct claim accrues within a reasonable time after plaintiff shouldhave discovered injury); N.L.R.B. v. Allied Products Corp., 548

F.2d 644, 650 (6th Cir. 1977) (“general rule” is that statute

begins to run when claimant discovers or should have discoveredthe unfair labor practice).

Mounts’s attempts to distinguish Aparacio in order to

obtain relief for the worsening of his condition that occurredwithin the three years prior to filing suit are unavailing.Although factual differences exist between this case andAparicio, the application of the discovery rule does not hingeon the distinction of whether or not the employee withheldinformation of his injury from the employer, nor does it relyon the employer’s knowledge or lack of knowledge of theinjury. Cf. Kubrick, 444 U.S. at 122-23 (stating that the goal

of the discovery rule is to encourage an employee to informhimself about his condition and bring claims promptly). Wealso note that a holding that circumvents the discovery rulewhen the employer knows of the employee’s condition mightcreate unfortunate incentives for employers not to “find out”about employee illnesses through regular testing. 

Nor does Mounts have a viable claim for a continuing tort

under FELA. The continuing tort doctrine can be viewed asan exception to the discovery rule, see Dixon v. Anderson,

928 F.2d 212, 216 (6th Cir. 1991) (calling continuousviolations an exception in the discrimination context), or analternative to the discovery rule. Although continuing tort hasbeen recognized by our circuit in other contexts, seeAlexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394,408 (6th Cir. 1999) (stating that, in the Title VII context,longstanding and demonstrable discrimination can allow acourt to examine discriminatory acts that occur even outsideof the statute of limitations, as long as some of these acts

No. 99-3151 Mounts v. Grand 

GTW began to conduct regu

employees in the late 1980s. administered a hearing test, after had a hearing loss. At a follow-doctor’s notes state that Mounts sahearing communications at work decreased over a period of time. undergo more extensive testing in different doctor in Ohio. The secdiscussed the results of the test with possibility of a hearing aid. (GTW hearing aid after Mounts ordered onthat he did not need one.) Mountand a half weeks because of this h

In July 1990, Mounts settled a 

GTW for $7,700 and signed a warailroad. Mounts states that he wagent, Blackstone, that in order to time off, he had to sign the waiverreceived was marginally more than states that Blackstone told him tminimal. Mounts did not take a before returning to work. 

In 1993, after a company audiog

Mounts was again directed to Detrtest, conducted in November 1993for speech and severe loss for higears. The doctor’s report states conditions at work were noisy. 

From about 1990, when GTW su

ear plugs, until the time he ceased Mounts wore hearing protection wsometimes the protection would pwell enough to do his job, so he wothough, he wore the protection thawas not told by GTW at any point t
4 Mounts v. Grand Trunk Western R.R. No. 99-3151

In May 1994, Mounts went on medical leave as a result of

a seizure (unrelated to his hearing claim). He returned to hisposition in April 1995, with a medical clearance and withoutany work restrictions.

GTW conducted another test of Mounts’s hearing in 1996,

which showed poorer hearing. On May 28, 1997, Mountswas removed from service with GTW because of his hearingimpairment. He was referred by his personal physician to aspecialist, who opined that Mounts is permanently disabledfrom his railroad work. GTW told Mounts to apply for apermanent disability annuity from the Railroad RetirementBoard. 

On January 8, 1998, Mounts sued GTW in district court

under the FELA, 45 U.S.C. § 51, for: 1) negligence; and 2)maintaining improper and unsafe equipment in violation ofthe Boiler Inspection Act, 45 U.S.C. § 22 et seq. (1994). Incount three of his amended complaint, Mounts alleged fraudin the signing of the 1990 waiver, or in the alternative, mutualmistake. 

GTW filed for summary judgment based on the three-year

FELA statute of limitations. See 45 U.S.C. § 56. The district

court dismissed all three counts; granting summary judgmentbased on the statute of limitations on the first two counts, anddismissing the third count for failure to state a claim becauseit was dependent on the success of the underlying FELAclaims. Mounts appeals.

II.

We review the grant of a motion for summary judgment

under a de novo standard. See Babbitt v. Norfolk & W. Ry.

Co., 104 F.3d 89, 90 (6th Cir. 1997). Summary judgment isappropriate “if the pleadings, depositions, answers tointerrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to ajudgment as a matter of law.” Fed. R. Civ. P. 56(c). Indeciding the motion, a court must view the evidence and draw

No. 99-3151 Mounts v. Grand 

3In addition, the discovery rule has 

other federal statutes. See Michigan Workers Unions v. Muir Co., 992 F.2d 59stated:

There is good reason for us now discovery rule in this ERISA case bdone so in other contexts. Dixon v. An

(6th Cir. 1991) (42 U.S.C. § 1983 plaintiff knows or has reason to know v. Estate of Presser, 929 F.2d 11

(plaintiff in Bivens action has reason 

he should have discovered it); Hofs897, 904 (6th Cir. 1988) (RICO actknew or should have known of defenAu Rustproofing Center, Inc. v. Gulf 1237 (6th Cir. 1985) (state fraud actwas or should have been discoveredInc., 762 F.2d 49, 51 (6th Cir. 1985) to run when claimant discovers oviolations of National Labor RelationCent. Co., 650 F.2d 829, 834 (6th C

a severable cause of action unLiability Act.” Aparicio, 84 F.3d athe rationale set out in Fries v. Transp. Co., 909 F.2d 1092 (7th Ccircuit. See Aparicio, 84 F.3d at worker with hearing loss acknowloss as early as 1980 or 1981, and caused by his job, but did not seek Seventh Circuit rejected Fries’s suiSee Fries, 909 F.2d 1092. Fries exof action could accrue before the inseverity. See id. at 1096. In other employee who discovers an injury three-year statute of limitations perbringing suit against his employer id.; see also Albert v. Maine Cent. R

Cir. 1990) (finding the five plaintstatute of limitations when they kneattributed it to their railroad wobefore filing suit).3
8 Mounts v. Grand Trunk Western R.R. No. 99-3151

2The court, however, rejected Kichline’s argument that the cause of

action did not accrue until his retirement when the harmful exposure todiesel fuel, which allegedly caused his pulmonary disease, ceased. See id.a separate injury, not a continuation of the prior injury. Seeid. at 815. We asserted that if the injury had been acontinuation, it would be barred by the statute of limitations.See id.

Mounts has not brought forth evidence that a separate

injury or disease occurred within the three-year statute oflimitations. Mounts argues that a question of fact exists as towhether the change in his situation -- from being able to dohis job when he returned to work in 1995 to being disabledfrom his job in 1997 -- constitutes a separable tort. However,he has not submitted affidavits or other evidence frommedical professionals indicating that the hearing loss sufferedover the past few years is a separate injury. In response toGTW’s motion for summary judgment, he submitted anaffidavit from Dr. Victor VerMeulen, which briefly describesMounts’s hearing loss and opines that the loss is caused by hisemployment at GTW and that Mounts is “permanentlymedically disqualified from returning to his position on therailroad.”

We decline to follow Mounts’s suggestion that this court

can and should adopt the rationale and holding of Kichline v.Consolidated Rail Corp., 800 F.2d 356 (3d Cir. 1986). InKichline, the Third Circuit permitted the employee to proceedon his claim for aggravation of an injury during the threeyears prior to filing suit. See id. at 356. “The fact thatplaintiff was aware of the harmful effects of his exposure topollutants would go to his contributory negligence under thecircumstances but might not bar his claim for aggravationduring that period.” Id. at 361. The Third Circuit placed theresponsibility for establishing the extent of the injury thatoccurred during this period on the plaintiff. See id.2

In Aparicio, however, this court explicitly “disagree[d] with

the Third Circuit that the aggravation of an original injury is

No. 99-3151 Mounts v. Grand all reasonable inferences in favor See Matsushita Elec. Indus. Co. vU.S. 574, 587 (1986). The movburden of demonstrating the absematerial fact. See Celotex Corp. (1986). If the moving party nonmoving party must come forshowing that there is a genuinMatsushita, 475 U.S. at 587. Tnonmoving party may not rest on tpleadings. See Fed. R. Civ. P. 5

324.

III. 

FELA is “a remedial and human

by Congress to afford relief to emplin the railway industry.” Edsall v479 F.2d 33, 35 (6th Cir. 1973); 

(establishing employer liability); 4the assumption of risk defense as a statute of limitations, 45 U.S.C. § action shall be maintained uncommenced within three years fraction accrued.” 

The Supreme Court, in the cour

a plaintiff’s claim for silicosis walimitations, examined what “accrstatute of limitations. See Urie v. (1949). The Court rejected the appdusty breath” is a new cause of aextreme, a rule that the employee she contracted the disease, before hstating that a rule which held an knowledge of the disease “at somunknown and inherently unknowwould frustrate Congress’s purpos169. Instead, “‘the afflicted emp“injured” only when the accu
6 Mounts v. Grand Trunk Western R.R. No. 99-3151

1In Kubrick, the Court stated:

We are unconvinced that for statute of limitations purposes aplaintiff’s ignorance of his legal rights and his ignorance of thefact of his injury or its cause should receive identical treatment.That he has been injured in fact may be unknown or unknowableuntil the injury manifests itself; and the facts about causationmay be in the control of the putative defendant, unavailable tothe plaintiff or at least very difficult to obtain. The prospect isnot so bleak for a plaintiff in possession of the critical facts thathe has been hurt and who has inflicted the injury. He is nolonger at the mercy of the latter. There are others who can tellhim if he has been wronged, and he need only ask. 

Id. at 122. 

deleterious substance manifest themselves.’” Id. at 170(quoting Associated Indem. Corp. v. Industrial AccidentComm’n, 12 P.2d 1075, 1076 (Cal. App. 1932)). The Courtlater solidified what has become known as the discovery rule,finding that a cause of action “accrues” when an employeeknows of the injury and its cause. See United States v.Kubrick, 444 U.S. 111, 123-24 (1979) (distinguishing, in aFederal Tort Claims Act case, discovery of the fact of theinjury from discovery of legal liability).1

Mounts argues against a statute of limitations bar under two

approaches. First, Mounts asserts that the claim is not timebarred because the aggravation of his hearing loss constitutesa separate injury and that the exposure at his GTW jobconstitutes a separate tort for FELA purposes; or at least thata question of facts exists on this point. As proof, Mountsasserts that he returned to work in 1995 fully qualified andthat, after exposure to noise at work, he was terminated in1997 because of his hearing loss. Second, Mounts argues thathis claim is not time-barred for the injury that occurred duringthe three years prior to filing suit, irrespective of whether thatinjury is considered a new injury, aggravation of an old injury,or the result of a separate tort. In other words, no matter whatthe court calls his worsened hearing, Mounts asserts that heshould be able to recover for damage to his hearing thatoccurred within the three-year statute of limitations period.

No. 99-3151 Mounts v. Grand 

Both of these approaches fail und

which requires Mounts to establish satisfying the three-year statute of limay conduct an examination of interpreted the discovery rule to babrought more than three years aftecause were discovered. See Apari84 F.3d 803, 814-15 (6th Cir. 199knew of his hearing loss and its hearing was tested and determinMounts himself attributed to his e

The discovery rule applies eve

worsened by the same employer:

Any “aggravation” of the originjury would only affect the pwould not require a separate detecausation. Furthermore, a rule pa claim that an original, contiaggravated would contravene discovery rule articulated in Employers’ Liability Act plaindiligence to discover the cause injury manifests itself. 

Id. at 815.

In Aparicio, the employee a

negligently caused his carpal epicondylitis. Beginning in 1987numbness and tingling in his righhowever, resolved themselves wiapproximately five years. See Aparicio again sought treatment wrists, was diagnosed with carpal operated on. Id. at 806. In 1993with tennis elbow and could not rethe district court’s finding that a created by Aparicio’s submissiphysician who stated that his later (