           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0004P (6th Cir.)
                    File Name: 00a0004p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                            ;
                             
 MARK S. MOUNTS,
                             
          Plaintiff-Appellant,
                             
                             
                                              No. 99-3151
          v.
                             
                              >
 GRAND TRUNK WESTERN         
                             
        Defendant-Appellee. 
 RAILROAD,

                             
                            1

      Appeal from the United States District Court
     for the Southern District of Ohio at Columbus.
    No. 98-00036—Joseph P. Kinneary, District Judge.
                  Argued: December 6, 1999
              Decided and Filed: January 5, 2000
   Before: COLE and GILMAN, Circuit Judges; CARR,
                   District Judge.*




    *
     The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.


                                  1
2    Mounts v. Grand Trunk Western R.R.          No. 99-3151      No. 99-3151       Mounts v. Grand Trunk Western R.R.          11

                    _________________                             occur within the statutory period); Flynt v. Brownfield,
                                                                  Bowen, & Bally, 882 F.2d 1048, 1052 (6th Cir. 1989)
                         COUNSEL                                  (discussing Ohio cases that apply doctrine to suits against
                                                                  attorneys), there has been no indication that it applies to
ARGUED: Paul Kevin Hemmer, CARROLL, UCKER &                       FELA claims. In fact, in Kichline, which Mounts urges us to
HEMMER, Columbus, Ohio, for Appellant. Julie L.                   follow, the Third Circuit rejected the continuing tort theory.
Atchison, PORTER, WRIGHT, MORRIS & ARTHUR,                        See Kichline, 800 F.2d 356, 360 (3d Cir. 1986) (limiting
Columbus, Ohio, for Appellee. ON BRIEF: Paul Kevin                Fowkes v. Pennsylvania R.R., 264 F.2d 397 (3d Cir. 1959),
Hemmer, CARROLL, UCKER & HEMMER, Columbus,                        which arguably applied the doctrine); see also National
Ohio, for Appellant. Julie L. Atchison, Patrick Jerome Smith,     Railroad Passenger Corp. v. Krouse, 627 A.2d 489 (D.C.
PORTER, WRIGHT, MORRIS & ARTHUR, Columbus,                        App. 1993) (reversing lower court’s finding that the FELA
Ohio, for Appellee.                                               cause of action did not accrue until the employer’s tortious
                                                                  action ended and citing, at 495 n.9, federal district court cases
                    _________________                             rejecting this approach). We decline to apply the continuing
                                                                  tort doctrine to this case, because Mounts clearly knew of his
                        OPINION                                   injury and its cause long before filing suit and failed to
                    _________________                             produce evidence of a new or separate injury caused by the
  R. GUY COLE, JR., Circuit Judge. The sole issue on              alleged continuing conduct of GTW.
appeal is whether Mark S. Mounts, a lifetime railroad                                    CONCLUSION
employee who can no longer hold his job because of hearing
loss, filed suit against his former employer within the three-      In sum, the FELA statute of limitations has run and no
year statute of limitations of the Federal Employers’ Liability   genuine issue of material fact exists as to whether Mounts’s
Act (“FELA”), 45 U.S.C. § 51 et seq. We find that he did          cause of action accrued before this period. Therefore, we
not, and therefore AFFIRM the district court’s grant of           AFFIRM the district court’s grant of summary judgment for
summary judgment for the defendant employer, Grand Trunk          defendant GTW.
Western Railroad.
                              I.
  Mounts is a 51-year-old man who has been a railroad
employee all his career. After working as a brakeman for the
New York Central Railroad for ten years, Mounts began
working for Grand Trunk Western (“GTW”) in March 1978.
During his employment with GTW, which was primarily
based in Ohio, he was exposed to a variety of loud noises in
connection with his work, such as noises from brake exhaust,
radios, yard retarders, and whistles. Mounts attributes his
subsequent hearing loss to these noises on his job sites.
10     Mounts v. Grand Trunk Western R.R.                 No. 99-3151    No. 99-3151       Mounts v. Grand Trunk Western R.R.          3

  Mounts’s attempts to distinguish Aparacio in order to                    GTW began to conduct regular hearing tests of its
obtain relief for the worsening of his condition that occurred           employees in the late 1980s. In 1989, Mounts was
within the three years prior to filing suit are unavailing.              administered a hearing test, after which he was told that he
Although factual differences exist between this case and                 had a hearing loss. At a follow-up test in April 1990, the
Aparicio, the application of the discovery rule does not hinge           doctor’s notes state that Mounts said he was having difficulty
on the distinction of whether or not the employee withheld               hearing communications at work and that his hearing had
information of his injury from the employer, nor does it rely            decreased over a period of time. Mounts was directed to
on the employer’s knowledge or lack of knowledge of the                  undergo more extensive testing in Detroit, and testing by a
injury. Cf. Kubrick, 444 U.S. at 122-23 (stating that the goal           different doctor in Ohio. The second Ohio doctor, Morris,
of the discovery rule is to encourage an employee to inform              discussed the results of the test with Mounts and discussed the
himself about his condition and bring claims promptly). We               possibility of a hearing aid. (GTW later refused to pay for a
also note that a holding that circumvents the discovery rule             hearing aid after Mounts ordered one; a railroad official stated
when the employer knows of the employee’s condition might                that he did not need one.) Mounts was out of work for five
create unfortunate incentives for employers not to “find out”            and a half weeks because of this hearing testing.
about employee illnesses through regular testing.
                                                                            In July 1990, Mounts settled a hearing loss claim with
   Nor does Mounts have a viable claim for a continuing tort             GTW for $7,700 and signed a waiver of claims against the
under FELA. The continuing tort doctrine can be viewed as                railroad. Mounts states that he was told by GTW’s claim
an exception to the discovery rule, see Dixon v. Anderson,               agent, Blackstone, that in order to receive his wages for the
928 F.2d 212, 216 (6th Cir. 1991) (calling continuous                    time off, he had to sign the waiver. The amount of money he
violations an exception in the discrimination context), or an            received was marginally more than his back pay. Mounts also
alternative to the discovery rule. Although continuing tort has          states that Blackstone told him that his hearing loss was
been recognized by our circuit in other contexts, see                    minimal. Mounts did not take a physical or hearing test
Alexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394,             before returning to work.
408 (6th Cir. 1999) (stating that, in the Title VII context,
longstanding and demonstrable discrimination can allow a                   In 1993, after a company audiogram showed hearing loss,
court to examine discriminatory acts that occur even outside             Mounts was again directed to Detroit for a hearing test. The
of the statute of limitations, as long as some of these acts             test, conducted in November 1993, showed a moderate loss
                                                                         for speech and severe loss for high pitched sounds in both
                                                                         ears. The doctor’s report states that Mounts told him the
                                                                         conditions at work were noisy.
     governing malpractice claim under Federal Tort Claims Act
     begins to run when claimant discovers or should have discovered       From about 1990, when GTW supervisors told him to wear
     the acts constituting the alleged wrong), cert. denied, 454 U.S.
     967 (1981); Herm v. Stafford, 663 F.2d 669, 682 (6th Cir. 1981)     ear plugs, until the time he ceased employment with GTW,
     (statute in securities fraud case begins to run when the fraud      Mounts wore hearing protection when he could. He said that
     should have been discovered); Ott v. Midland-Ross Corp., 600        sometimes the protection would prohibit him from hearing
     F.2d 24, 27 (6th Cir. 1979) (Age Discrimination in Employment       well enough to do his job, so he would remove it. Otherwise,
     Act claim accrues within a reasonable time after plaintiff should   though, he wore the protection that GTW gave him. Mounts
     have discovered injury); N.L.R.B. v. Allied Products Corp., 548
     F.2d 644, 650 (6th Cir. 1977) (“general rule” is that statute       was not told by GTW at any point that he had job restrictions.
     begins to run when claimant discovers or should have discovered
     the unfair labor practice).
4     Mounts v. Grand Trunk Western R.R.           No. 99-3151      No. 99-3151         Mounts v. Grand Trunk Western R.R.                 9

   In May 1994, Mounts went on medical leave as a result of         a severable cause of action under Federal Employers’
a seizure (unrelated to his hearing claim). He returned to his      Liability Act.” Aparicio, 84 F.3d at 815. Instead, we adopted
position in April 1995, with a medical clearance and without        the rationale set out in Fries v. Chicago & Northwestern
any work restrictions.                                              Transp. Co., 909 F.2d 1092 (7th Cir. 1990), as the rule of this
                                                                    circuit. See Aparicio, 84 F.3d at 815. In Fries, a railroad
  GTW conducted another test of Mounts’s hearing in 1996,           worker with hearing loss acknowledged that he noticed the
which showed poorer hearing. On May 28, 1997, Mounts                loss as early as 1980 or 1981, and soon after suspected it was
was removed from service with GTW because of his hearing            caused by his job, but did not seek treatment until 1985. The
impairment. He was referred by his personal physician to a          Seventh Circuit rejected Fries’s suit, filed in November 1987.
specialist, who opined that Mounts is permanently disabled          See Fries, 909 F.2d 1092. Fries explicitly stated that a cause
from his railroad work. GTW told Mounts to apply for a              of action could accrue before the injury reached its maximum
permanent disability annuity from the Railroad Retirement           severity. See id. at 1096. In other words, in this circuit, an
Board.                                                              employee who discovers an injury and its cause before the
                                                                    three-year statute of limitations period is precluded from later
   On January 8, 1998, Mounts sued GTW in district court            bringing suit against his employer based on that injury. See
under the FELA, 45 U.S.C. § 51, for: 1) negligence; and 2)          id.; see also Albert v. Maine Cent. R.R. Co., 905 F.2d 541 (1st
maintaining improper and unsafe equipment in violation of           Cir. 1990) (finding the five plaintiffs’ claims barred by the
the Boiler Inspection Act, 45 U.S.C. § 22 et seq. (1994). In        statute of limitations when they knew of their hearing loss and
count three of his amended complaint, Mounts alleged fraud          attributed it to their   railroad work more than three years
in the signing of the 1990 waiver, or in the alternative, mutual    before filing suit).3
mistake.
   GTW filed for summary judgment based on the three-year
FELA statute of limitations. See 45 U.S.C. § 56. The district           3
                                                                          In addition, the discovery rule has also been applied to a range of
court dismissed all three counts; granting summary judgment         other federal statutes. See Michigan United Food & Commercial
based on the statute of limitations on the first two counts, and    Workers Unions v. Muir Co., 992 F.2d 594, 597-98 (6th Cir. 1993), which
dismissing the third count for failure to state a claim because     stated:
it was dependent on the success of the underlying FELA                   There is good reason for us now to adopt and apply the
                                                                         discovery rule in this ERISA case because we have frequently
claims. Mounts appeals.                                                  done so in other contexts. Dixon v. Anderson, 928 F.2d 212, 215
                                                                         (6th Cir. 1991) (42 U.S.C. § 1983 claim accrues “when the
                               II.                                       plaintiff knows or has reason to know of the injury”); Friedman
                                                                         v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991)
  We review the grant of a motion for summary judgment                   (plaintiff in Bivens action has reason to know of his injury when
under a de novo standard. See Babbitt v. Norfolk & W. Ry.                he should have discovered it); Hofstetter v. Fletcher, 905 F.2d
                                                                         897, 904 (6th Cir. 1988) (RICO action accrues when plaintiff
Co., 104 F.3d 89, 90 (6th Cir. 1997). Summary judgment is                knew or should have known of defendant's fraudulent scheme);
appropriate “if the pleadings, depositions, answers to                   Au Rustproofing Center, Inc. v. Gulf Oil Corp., 755 F.2d 1231,
interrogatories, and admissions on file, together with the               1237 (6th Cir. 1985) (state fraud action accrues when the fraud
affidavits, if any, show that there is no genuine issue as to any        was or should have been discovered); Shapiro v. Cook United,
material fact and that the moving party is entitled to a                 Inc., 762 F.2d 49, 51 (6th Cir. 1985) (per curiam) (statute begins
                                                                         to run when claimant discovers or should have discovered
judgment as a matter of law.” Fed. R. Civ. P. 56(c). In                  violations of National Labor Relations Act); Modin v. New York
deciding the motion, a court must view the evidence and draw             Cent. Co., 650 F.2d 829, 834 (6th Cir.) (statute of limitations
8       Mounts v. Grand Trunk Western R.R.                No. 99-3151        No. 99-3151      Mounts v. Grand Trunk Western R.R.         5

a separate injury, not a continuation of the prior injury. See               all reasonable inferences in favor of the nonmoving party.
id. at 815. We asserted that if the injury had been a                        See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
continuation, it would be barred by the statute of limitations.              U.S. 574, 587 (1986). The moving party bears the initial
See id.                                                                      burden of demonstrating the absence of a genuine issue of
                                                                             material fact. See Celotex Corp. v. Catrett, 477 U.S. 317
  Mounts has not brought forth evidence that a separate                      (1986). If the moving party shows this absence, the
injury or disease occurred within the three-year statute of                  nonmoving party must come forward with specific facts
limitations. Mounts argues that a question of fact exists as to              showing that there is a genuine issue for trial. See
whether the change in his situation -- from being able to do                 Matsushita, 475 U.S. at 587. To meet this burden, the
his job when he returned to work in 1995 to being disabled                   nonmoving party may not rest on the mere allegations in the
from his job in 1997 -- constitutes a separable tort. However,               pleadings. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at
he has not submitted affidavits or other evidence from                       324.
medical professionals indicating that the hearing loss suffered
over the past few years is a separate injury. In response to                                             III.
GTW’s motion for summary judgment, he submitted an
affidavit from Dr. Victor VerMeulen, which briefly describes                    FELA is “a remedial and humanitarian statute . . . enacted
Mounts’s hearing loss and opines that the loss is caused by his              by Congress to afford relief to employees from injury incurred
employment at GTW and that Mounts is “permanently                            in the railway industry.” Edsall v. Penn Cent. Transp. Co.,
medically disqualified from returning to his position on the                 479 F.2d 33, 35 (6th Cir. 1973); see also 45 U.S.C. § 51
railroad.”                                                                   (establishing employer liability); 45 U.S.C. § 54 (abolishing
                                                                             the assumption of risk defense as a matter of law). The FELA
   We decline to follow Mounts’s suggestion that this court                  statute of limitations, 45 U.S.C. § 56, provides in part: “No
can and should adopt the rationale and holding of Kichline v.                action shall be maintained under this chapter unless
Consolidated Rail Corp., 800 F.2d 356 (3d Cir. 1986). In                     commenced within three years from the day the cause of
Kichline, the Third Circuit permitted the employee to proceed                action accrued.”
on his claim for aggravation of an injury during the three
years prior to filing suit. See id. at 356. “The fact that                      The Supreme Court, in the course of determining whether
plaintiff was aware of the harmful effects of his exposure to                a plaintiff’s claim for silicosis was barred by the statute of
pollutants would go to his contributory negligence under the                 limitations, examined what “accrual” means in the FELA
circumstances but might not bar his claim for aggravation                    statute of limitations. See Urie v. Thompson, 337 U.S. 163
during that period.” Id. at 361. The Third Circuit placed the                (1949). The Court rejected the approach that “each intake of
responsibility for establishing the extent of the injury  that               dusty breath” is a new cause of action, as well as the other
occurred during this period on the plaintiff. See id.2                       extreme, a rule that the employee should have filed as soon as
                                                                             he contracted the disease, before he even had any symptoms;
  In Aparicio, however, this court explicitly “disagree[d] with              stating that a rule which held an employee responsible for
the Third Circuit that the aggravation of an original injury is              knowledge of the disease “at some past moment in time,
                                                                             unknown and inherently unknowable even in retrospect”
                                                                             would frustrate Congress’s purpose in enacting FELA. Id. at
    2
      The court, however, rejected Kichline’s argument that the cause of     169. Instead, “‘the afflicted employee can be held to be
action did not accrue until his retirement when the harmful exposure to      “injured” only when the accumulated effects of the
diesel fuel, which allegedly caused his pulmonary disease, ceased. See id.
6       Mounts v. Grand Trunk Western R.R.                   No. 99-3151    No. 99-3151       Mounts v. Grand Trunk Western R.R.            7

deleterious substance manifest themselves.’” Id. at 170                       Both of these approaches fail under this circuit’s precedent,
(quoting Associated Indem. Corp. v. Industrial Accident                     which requires Mounts to establish a separate injury, thereby
Comm’n, 12 P.2d 1075, 1076 (Cal. App. 1932)). The Court                     satisfying the three-year statute of limitations, before the court
later solidified what has become known as the discovery rule,               may conduct an examination of liability. This circuit has
finding that a cause of action “accrues” when an employee                   interpreted the discovery rule to bar FELA claims from being
knows of the injury and its cause. See United States v.                     brought more than three years after the initial injury and its
Kubrick, 444 U.S. 111, 123-24 (1979) (distinguishing, in a                  cause were discovered. See Aparicio v. Norfolk W. Ry. Co.,
Federal Tort Claims Act case, discovery     of the fact of the              84 F.3d 803, 814-15 (6th Cir. 1996). At the latest, Mounts
injury from discovery of legal liability).1                                 knew of his hearing loss and its cause in 1993, when his
                                                                            hearing was tested and determined to be deficient; a loss
  Mounts argues against a statute of limitations bar under two              Mounts himself attributed to his employment.
approaches. First, Mounts asserts that the claim is not time-
barred because the aggravation of his hearing loss constitutes               The discovery rule applies even if the injury was later
a separate injury and that the exposure at his GTW job                      worsened by the same employer:
constitutes a separate tort for FELA purposes; or at least that
a question of facts exists on this point. As proof, Mounts                    Any “aggravation” of the original negligently caused
asserts that he returned to work in 1995 fully qualified and                  injury would only affect the plaintiff’s damages, and
that, after exposure to noise at work, he was terminated in                   would not require a separate determination of liability or
1997 because of his hearing loss. Second, Mounts argues that                  causation. Furthermore, a rule permitting severability of
his claim is not time-barred for the injury that occurred during              a claim that an original, continuing injury has been
the three years prior to filing suit, irrespective of whether that            aggravated would contravene the purpose of the
injury is considered a new injury, aggravation of an old injury,              discovery rule articulated in Urie requiring Federal
or the result of a separate tort. In other words, no matter what              Employers’ Liability Act plaintiffs to use reasonable
the court calls his worsened hearing, Mounts asserts that he                  diligence to discover the cause of an injury once the
should be able to recover for damage to his hearing that                      injury manifests itself.
occurred within the three-year statute of limitations period.
                                                                            Id. at 815.
                                                                              In Aparicio, the employee alleged that the railroad
    1                                                                       negligently caused his carpal tunnel syndrome and
     In Kubrick, the Court stated:
    We are unconvinced that for statute of limitations purposes a           epicondylitis. Beginning in 1987, Aparicio began to have
    plaintiff’s ignorance of his legal rights and his ignorance of the      numbness and tingling in his right hand. These problems,
    fact of his injury or its cause should receive identical treatment.     however, resolved themselves with minimal treatment for
    That he has been injured in fact may be unknown or unknowable
    until the injury manifests itself; and the facts about causation        approximately five years. See id. at 805-06. In 1992,
    may be in the control of the putative defendant, unavailable to         Aparicio again sought treatment for pain in his hands and
    the plaintiff or at least very difficult to obtain. The prospect is     wrists, was diagnosed with carpal tunnel syndrome, and was
    not so bleak for a plaintiff in possession of the critical facts that   operated on. Id. at 806. In 1993, Aparicio was diagnosed
    he has been hurt and who has inflicted the injury. He is no             with tennis elbow and could not return to his job. We upheld
    longer at the mercy of the latter. There are others who can tell        the district court’s finding that a material issue of fact was
    him if he has been wronged, and he need only ask.
                                                                            created by Aparicio’s submission of an affidavit of a
Id. at 122.                                                                 physician who stated that his later (1992 and 1993) injury was
