### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 1187

R ITA G UERRERO

, individually and as the Special Administra

‐

tor of the Estate of Celso N. Guerrero,

Plaintiff

‐ Appellant

,

v.

BNSF R AILWAY C OMPANY

, Defendant

‐ Appellee

.

____________________ Appeal from the United States District Court

for the Central District of Illinois.

No. 1:17

‐ cv

‐ 01044

‐ MMM

‐ JEH

– Michael M

. Mihm, Judge.

____________________

A RGUED M AY 28, 2019

— D ECIDED J ULY 17, 2019

____________________

Before W OOD

, Chief Judge

, and B AUER and E ASTERBROOK

,

Circuit Judges

.

W OOD

, Chief Judge

. Behind the legal question we must re

‐

solve in this case is a sad story: as Celso Guerrero was trying

to drive to his job at BNSF Railway through a snowstorm early

one morning, his car skidded, it collided with a snowplow,

and he was killed. His widow, Rita Guerrero, who appears on2 No. 19

‐ 1187

her own behalf and as administrator of her late husband’s es

‐

tate, is seeking compensatory money damages from BNSF.

(Our references in this opinion to Guerrero refer to Celso

Guerrero, unless the context requires otherwise.) The district

court concluded that Guerrero was not acting within the

scope of his employment when the fatal accident occurred,

and thus the Federal Employer’s Liability Act (FELA) does not

apply to the case. In our view, the question of work status is a

close one, but it is one that we need not resolve. No jury could

fi nd that BNSF was negligent in any action it took or failed to

take with respect to Guerrero, and so on that ground we af

‐

fi rm the district court’s judgment.

I

We take our account of the undisputed facts from the dis

‐

trict court’s opinion, recognizing that this case was resolved

through a motion for summary judgment, and so (as the dis

‐

trict court also did), we accept the facts in the light most fa

‐

vorable to the opponent of the motion, Guerrero.

Celso Guerrero was a machine operator for BNSF. His nor

‐

mal schedule required him to work from Monday through

Friday, but he was subject to possible overtime work at other

times. His primary duty was track repair, but he was also ex

‐ pected to perform other tasks as needed, including snow re

‐

moval. On Saturday, January 31, 2015, Guerrero received a

telephone call around 6:00 p.m. from Nick Burwell, the BNSF

Roadmaster in charge of track maintenance for the Galesburg,

Illinois, railyard and surrounding area. Burwell told Guerrero

that a signi fi cant snowstorm was expected, and so he was

looking for employees to clear snow from the tracks starting

the next morning at 7:00 a.m. at the Galesburg facility. In mak

‐No. 19

‐ 1187 3

ing these calls, Burwell followed a union seniority list. Guer

‐

rero was not required to accept this work opportunity, but he

did. From that point onward, we can assume that BNSF was

relying on him to show up at the assigned time, and he at a

minimum would have had to notify the company if he no

longer wanted to accept the extra work.

Driving his personal vehicle, Guerrero left his home in

Kewanee, Illinois (about 40 miles northeast of Galesburg) at

5:00 a.m. on February 1. The predicted snowstorm was under

‐

way, and it was snowing hard as Guerrero drove along Illi

‐

nois Route 34. The National Weather Service documented at

least four, but likely closer to eight, inches of snow cover

along his route. Interactive Snow Information, Modeled Snow

Depth for 2015 February 1, 12:00 UTC

, T HE N ATIONAL W EATHER

S ERVICE ’ S N ATIONAL O PERATIONAL H YDRAULIC R EMOTE

S ENSING C ENTER

, h tt ps://www.nohrsc.noaa.gov/interac

‐ tive/html/map.html (Physical Element “Snow Depth”; Date

“February 1, 2015, 12:00 UTC”; City, ST “Galesburg, IL”).

While heading southbound, near Oneida, his car slid on the

roadway, spun across the median, and collided with a snow

‐ plow being operated by the Illinois Department of Transpor

‐

tation (IDOT); the plow was in the northbound lane. Guerrero

was severely injured and died the next day in the hospital.

Illinois State Trooper Carrie Worsfold responded to the colli

‐

sion. Commenting that “I was the plow, it felt like,” she re

‐

called that the road was completely covered with snow—

maybe three inches or more.

II

Rita Guerrero, suing in her own right and for Guerrero’s

Estate, fi led this action under the FELA, 45 U.S.C. §§ 51–59.

Asserting that her husband was killed while he was on duty4 No. 19

‐ 1187

and acting within the scope of his employment, she sought

compensatory damages. BNSF took issue with her assertion

that Guerrero was on duty at the time of his injury; it con

‐

tended that he was merely commuting to work, as he did for

his normal shift every day, and that commuting falls outside

the scope of employment in this situation. BNSF argued in the

alternative that no trier of fact could fi nd that BNSF was neg

‐ ligent either by act or omission, and that this was an inde

‐ pendent reason for judgment in its favor. On BNSF’s motion

for summary judgment, the district court ruled that Guer

‐

rero’s fatal injury occurred at a time when he was not acting

within the scope of his employment. The FELA thus did not

apply—a conclusion to which the judge a tt ached jurisdic

‐

tional signi fi cance. Without addressing BNSF’s negligence ar

‐

gument, the judge granted summary judgment in BNSF’s fa

‐

vor, presumably with prejudice, since the judgment docu

‐

ment does not specify otherwise and makes no mention of a

jurisdictional ground for dismissal. See F ED

. R. C IV

. P. 41(b);

Swanigan v. City of Chicago

, 775 F.3d 953, 959 n.2 (7th Cir. 2015).

Guerrero has appealed.

III

Although the parties spend most of their time arguing

over the district court’s fi nding about scope of employment,

we have much less to say about that, and more to say about

BNSF’s alternate, negligence

‐ based argument. The reason is

simple: it appears to us that there are disputed issues of ma

‐

terial fact on the former point that would preclude summary

judgment, but there are no such issues on the la tt er point.No. 19

‐ 1187 5

A

Before turning to the merits, we need to say a word about

jurisdiction. Citing Cailloue tt e v. Balt. & Ohio Chicago Terminal

R. Co.

, 705 F.2d 243, 245–46 (7th Cir. 1983), the district court

held that the answer to the question whether the FELA covers

Guerrero’s claims—here, the answer to the question whether

Guerrero was within the scope of his employment when the

accident occurred—“implicates the Court’s subject ma tt er ju

‐

risdiction.” It is true that the Cailloue tt e court’s discussion of

FELA coverage appears in a section headed “Subject Ma tt er

Jurisdiction.” But saying so does not make it so. All the court

actually held in Cailloue tt e was that the injured rail worker

was indeed acting within the scope of his employment when

he walked across a rail yard, and it a ffi rmed a jury verdict in

the worker’s favor.

Quite a bit of water has gone under the bridge since 1983,

when Cailloue tt e characterized a question relating to the scope

of coverage under a statute as one a ff ecting the district court’s

subject

‐ ma tt er jurisdiction. In Arbaugh v. Y & H Corp.

, 546 U.S.

500 (2006), the Supreme Court endeavored to clarify the dif

‐

ference between “federal

‐ court ‘subject

‐ ma tt er’ jurisdiction

over a controversy; and the essential ingredients of a federal

claim for relief.” Id. at 503. In that case, it held that the provi

‐

sion in Title VII of the Civil Rights Act limiting its coverage to

employers having 15 or more employees does not a ff ect sub

‐ ject

‐ ma tt er jurisdiction. Instead, it simply “delineates a sub

‐

stantive ingredient of a Title VII claim for relief.” Id. Later de

‐

cisions from the Supreme Court have made clear that this was

not a mere quirk of Title VII law. Over and over, the Court has

stressed the di ff erence between the fundamental power to ad

‐6 No. 19

‐ 1187

judicate a claim ( i.e. something a ff ecting subject

‐ ma tt er juris

‐ diction) and lesser restrictions, including claim

‐ processing

rules and ingredients of a claim. See, e.g.

, Fort Bend Cnty., Texas

v. Davis

, 139 S. Ct. 1843 (2019) (administrative charge

‐ fi ling

requirement under Title VII is a mandatory, but non

‐jurisdic

‐

tional, prerequisite to suit); Morrison v. National Australia Bank

Ltd.

, 561 U.S. 247 (2010) (extent of extraterritorial reach of se

‐

curities statute relates to scope of statute, not subject

‐ ma tt er

jurisdiction); Reed Elsevier, Inc. v. Muchnick

, 559 U.S. 154 (2010)

(Copyright Act’s registration requirement is precondition to

suit, but does not a ff ect subject

‐ ma tt er jurisdiction).

The import of those cases is unmistakable: unless Con

‐

gress has unambiguously said in a statute that a particular

limitation a ff ects the district court’s subject

‐ ma tt er jurisdic

‐

tion, a limitation on the right to recover (such as number of

employees, or extraterritorial reach, or scope of employment)

describes an element of the case. Nothing in the FELA com

‐ pels the conclusion that the merits of a claim and subject

‐ mat

‐

ter jurisdiction are con fl ated for its purposes. The question be

‐

fore us is thus only whether Guerrero has alleged enough to

survive summary judgment on the scope

‐ of

‐ employment is

‐

sue. BNSF properly preserved this point in the district court,

and so the fact that it would be too late now to inject that issue

into the case is of no moment.

B

The federal reporters are li tt ered with cases examining

whether the FELA applies to an employee injured while he or

she is commuting to or from work. Often the answer is no:

courts generally hold that the employee is on her own during

the commute and does not report to work until she has

reached her place of employment. Some cases, however, slipNo. 19

‐ 1187 7

into a gray area. For example, employment status is often con

‐

tested where a commuter is injured while traveling to or from

work on the same railway that employs her, using a pass is

‐

sued by the employer. Nonetheless, those cases usually fi nd

that the travel is outside the scope of employment. We have

noted that those commuters “are excluded from [FELA] cov

‐

erage for two reasons—they are not required to commute on

their employer’s trains, and while commuting, they are in no

greater danger than any other member of the commuting

public.” Cailloue tt e

, 705 F.2d at 246 (citing Sassaman v. Pennsyl

‐

vania R.

, 144 F.2d 950, 953 (3d Cir. 1944)); Metropolitan Coal Co.

v. Johnson

, 265 F.2d 173, 178 (1st Cir. 1959). A second group of

borderline cases includes those in which an employee has just

clocked out, or not yet clocked in, but is traversing the work

site on her way to or from her assigned post when she is in

‐ jured. Those cases typically uphold FELA coverage, because

“traversing the work site

... is a necessary incident of the

day’s work.” Id. (citing Erie Railroad Co. v. Win fi eld

, 244 U.S.

170, 173 (1917). Relying on the former line of cases, the district

court found that Guerrero’s accident occurred while he was

on his way to work, far from his worksite, as he drove his per

‐

sonal vehicle on a public highway and faced dangers identical

to the rest of the commuting public.

But the situation is more complex than that. With respect

to the last point, evidence in the record (for example, Trooper

Worsfold’s testimony that she was “the plow,” implying that

she was the fi rst to drive on the newly fallen snow) indicated

that members of the commuting public were not out and

about—they were waiting out the storm until IDOT could

clear the roads and render them passable. Guerrero’s commit

‐

ment to BNSF thus distinguished him from the general popu

‐

lation. In addition, Guerrero was not heading to work for his8 No. 19

‐ 1187

normal job, which as we noted ran from Monday through Fri

‐ day. He had accepted a special assignment, and once he ac

‐ cepted it, BNSF was relying on him to show up. Guerrero

notes that the union contract to which he was subject provides

that “the time of an employee who is called after release from

duty to report for work will begin at the time called and will

end at the time he returns to designated point at headquar

‐

ters.” (Emphasis added.) Burwell called Guerrero at 6:00 p.m.

on January 31 and obtained Guerrero’s agreement to be at the

Galesburg facility by 7:00 a.m. the next morning. Recognizing

the adverse conditions caused by the snow, Guerrero budg

‐

eted a full two hours to drive the 40 miles between his home

and the railyard. In addition, the record shows that Burwell

later approved a se tt lement for Guerrero’s wages from the

6:00 p.m. telephone call until the planned time of arrival the

next morning. Although BNSF insists that Burwell erred in

doing so, a jury would not be required to accept that explana

‐

tion. Taking that fact favorably to Guerrero, it is evidence that

he was not commuting, but instead was “on the clock” and

working on the special assignment at the time of the crash.

We set forth these competing views of the record to show

why the question of scope of employment is not a straightfor

‐

ward one. It is a question of fact for the jury in an FELA case.

See Wilson v. Chicago, Milwaukee, St. Paul, and Pac. R.R. Co.

, 841

F.2d 1347, 1353–54 (7th Cir. 1988). Rather than wrestle it to the

ground to see if summary judgment was nonetheless correct

on this ground, we prefer to move to BNSF’s alternate argu

‐

ment: whether a trier of fact could fi nd that it was negligent,

even under the generous FELA standard, on this record.No. 19

‐ 1187 9

C

Because the district court did not reach the negligence ar

‐

gument, Guerrero understandably said nothing about it in his

opening brief. But BNSF properly raised the issue before the

district court, and it followed up in its responsive brief in this

court. Guerrero then had an opportunity to address negli

‐

gence in his reply brief. We may a ffi rm on any ground sup

‐ ported by the record, see Isby v. Brown, 856 F.3d 508, 529 (7th

Cir. 2017), and so this argument is properly before us.

Guerrero argues that there is ample evidence that would

support a jury fi nding of negligence, and so we begin with his

examples. He asserts that BNSF had a non

‐ delegable duty to

provide a reasonably safe place to work, and that this duty

extended to “places remote from railroad premises.” Reply

Br. at 8. But the cases to which he refers for that proposition

do not go so far as to impose on BNSF the duty to keep snowy

state highways plowed and safe. Instead, they cover private

places speci fi cally known to, if not chosen by, the employer

such as snow

‐ covered employee motel parking lots ( Du ffi eld

v. Marra, Inc.

, 166 Ill. App. 3d 754 (1988)), snow

‐ , ice

‐ , and de

‐

bris

‐ covered premises of a customer ( Howes v. Baker

, 16 Ill.

App. 3d 39 (1973)), and an o ff‐ site defective stairwell at a

training facility ( Mills v. CSX Transp., Inc.

, 300 S.W. 3d 627

(Tenn. 2009). Guerrero also suggests that BNSF was negligent

when, acting through Burwell, it asked Guerrero to show up

at 7:00 a.m. the morning after a bad storm. Burwell, he con

‐

tends, should have paid more a tt ention to the weather fore

‐

cast, or he should have had Guerrero show up at 10:00 p.m.

the night before and given him a hotel room, or he should

have cancelled the work request in the middle of the night

when it turned out that the storm was as severe as it was.10 No. 19

‐ 1187

We grant that Burwell could have gone the extra mile and

taken one or more of those steps, but that fact does not

demonstrate that BNSF was negligent when Burwell did not

do so. As BNSF points out in its brief, Kewanee and Galesburg

are in the upper Midwest, where snow is hardly an unusual

phenomenon. (One estimate shows an average annual snow

‐

fall for Galesburg of 23 inches. See Climate Galesburg

– Illinois

, U.S. C LIMATE D ATA

, h tt ps://www.usclimatedata.com/cli

‐ mate/galesburg/illinois/united

‐ states/usil0439 (last visited

July 12, 2019).) Guerrero had lived in Kewanee for more than

35 years, and so it is impossible that he was a novice driving

in snow. BNSF did not instruct him when to leave his house

to start the drive to Galesburg. Even assuming, as we have,

that he was “on the clock” from the time of Burwell’s call, he

had some discretion in deciding how to carry out his promise

to show up at the railyard.

Note in this connection that we are not relying on the vol

‐

untary nature of Guerrero’s initial decision to accept the as

‐ signment. From the time he said “yes” forward, we can as

‐

sume that he was obliged to show up. But we cannot ignore

the fact that the reason Burwell needed the extra help was the

snowstorm, and nothing but the snowstorm. Nor can we ig

‐

nore the fact that BNSF had no control over IDOT’s e ff orts to

plow the roads. In fact, Trooper Worsfold’s testimony, esti

‐ mating that the road was covered by about three inches of

snow as she was driving to reach the accident site, might sug

‐

gest that the roads had been plowed, even if new snow had

already started accumulating.

A decision that BNSF was negligent merely by asking

Guerrero to drive while it was still dark (as it would have been

on January 31 to February 1 between 6:00 p.m. and 7:00 a.m.,No. 19

‐ 1187 11

since sunset was about 5:15 p.m. and sunrise about 7:10 a.m.,

see Sunrise & Sunset for Galesburg, IL

, O LD F ARMER ’ S

A LMANAC

, h tt ps://www.almanac.com/astronomy/sun

‐ rise

‐

and

‐ set/IL/Galesburg/2015

‐ 02

‐ 01# (last visited July 12, 2019))

would have far

‐ reaching implications. Taken to the extreme,

it would mean that employers in snowy (or rainy, or icy) re

‐ gions would be negligent whenever they required their em

‐ ployees to drive in bad weather. Even under the liberal negli

‐

gence standards that apply in FELA cases, Consol. Rail Corp. v.

Go tt shall

, 512 U.S. 532, 543 (1994), that is too much. As the Su

‐

preme Court itself recognized in Go tt shall :

“[t]hat FELA is to be liberally construed, however,

does not mean that it is a workers’ compensation stat

‐

ute. We have insisted that FELA does not make the em

‐ ployer the insurer of the safety of his employees while

they are on duty. The basis of his liability is his negli

‐

gence, not the fact that injuries occur.

Id. (quotations and citations omi tt ed).

In the end, all that BNSF asked Guerrero to do was to come

in and help out with the task of clearing snow from the tracks.

Its failure, if one can call it that, to micro

‐ manage exactly

when Guerrero left his house, which route he took from

Kewanee to Galesburg, and how he handled his car in the

snow, cannot be characterized as negligence. Even in the rail

‐ yard (that is, on the employer’s premises and at the place of

employment), workers have some discretion in how they

carry out their jobs. So too here.

No one doubts that Mrs. Guerrero su ff ered a terrible per

‐

sonal loss when her husband lost his life as he tried to get to

work. And no one here is saying that Guerrero was at fault for12 No. 19

‐ 1187

the accident. It may have been caused by a sudden gust of

wind, or a patch of black ice that was invisible under the

snow, or any of a number of other external factors. But by the

same token, this record shows that the only action BNSF took

was to ask Guerrero to come to work under conditions known

to both of them. We cannot pin a fi nding of negligence on such

a slender reed.

The judgment of the district court granting summary

judgment in favor of BNSF is AFFIRMED.