Donahue v. Consolidated Rail Corp.

• Decision Date: 11 April 2000
• Docket Number: No. 99-1637,99-1637
• Citation: 224 F.3d 226
• Parties: (3rd Cir. 2000) CHARLES E. DONAHUE, Appellant v. CONSOLIDATED RAIL CORPORATION Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 226

224 F.3d 226 (3rd Cir. 2000)

CHARLES E. DONAHUE, Appellant v. CONSOLIDATED RAIL CORPORATION

No. 99-1637

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: April 11, 2000

Filed August 17, 2000

ON APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA District Court Judge: The Honorable Marvin Katz, CIVIL ACTION NO. 98-cv-5874

[Copyrighted Material Omitted]

JOSEPH M. SELLERS, ESQUIRE PAUL T. GALLAGHER, ESQUIRE (Argued) Cohen, Millstein, Hausfeld & Toll, P.L.L.C. 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, D.C. 20005-3964, MARK T. WADE, ESQUIRE JACK PORTER, ESQUIRE Pierce, Raimond, Osterhout, Wade, Carlson & Coulter, P.C. 2500 Gulf Tower 707 Grant Street Pittsburgh PA 15219-1918, Counsel for Appellant

C. GREGORY STEWART, ESQUIRE PHILLIP P. SKLOVER, ESQUIRE LORRAINE C. DAVIS, ESQUIRE LISA J. BANKS, ESQUIRE (Argued) Equal Employment Opportunity Commission Office of General Counsel 1801 L. Street, N.W. Washington D.C. 20507, Counsel for Amicus Curiae in Support of Appellants

ALAN D. BERKOWITZ, ESQUIRE (Argued) M. FRANCIS RYAN, ESQUIRE JENNIFER S. KOETHER, ESQUIRE Dechert Price and Rhoads 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA 19103-2793, Counsel for Appellee

Before: NYGAARD, ALITO, and GIBSON, Circuit Judges^*

OPINION OF THE COURT

ALITO, Circuit Judge:

Charles Donahue appeals from an order granting summary judgment to his former employer, Conrail, in a suit arising under S 504 of the Rehabilitation Act of 1973, 29 U.S.C. S 794. We affirm.

I.

Charles Donahue worked for many years on Conrail freight trains, primarily as a train conductor and engineer. In February 1993, Donahue had a heart attack at home. In May 1993, he returned to work. A few months later, in September 1993, Donahue passed out at work. His cardiologist, James Elson, concluded that Donahue's heart attack and blackout were caused by ventricular tachycardia, a heart condition that can suddenly cause the heart to beat extremely quickly. To help control this condition, Donahue had a defibrillator surgically installed. This device does not prevent the onset of tachycardia. Rather, it is designed to activate during tachycardic episodes and to shock the heart back into its normal rhythm. For the purposes of this appeal, it is undisputed that the device cannot be counted on to prevent loss of consciousness due to tachycardia.

After Donahue had undergone the surgery and several months of convalescence, Dr. Elson wrote a letter clearing him to begin working again. Nevertheless, Dr. Elson specifically warned Donahue that he remained at risk of passing out unexpectedly and that he should not work on or around moving trains. Despite his doctor's warnings, however, Donahue asked for work on moving trains. In March 1994, three days after beginning work as a train conductor, he experienced a tachycardic episode and passed out while walking down a train track. He was found by co-workers and taken to a hospital.

After recovering, Donahue asked his supervisors if there were any jobs that he could perform at Conrail in spite of his condition. The supervisors suggested several positions. He applied for at least one of these and was turned down because there were no vacancies. When he again asked his supervisors for advice, they suggested that he consider locomotive school but warned him that he would not be permitted to take any job at Conrail unless his doctor cleared him to work. Demoralized, Donahue decided to apply for Railroad Retirement Board disability benefits. He was granted full benefits and was terminated.

At the time Donahue left his job, Conrail had vacancies in the train dispatcher position.¹ The parties agree that a train dispatcher remotely monitors a stretch of railroad track and the trains on it. On hearing of a mishap, a train dispatcher must dispatch emergency crews to the scene and route traffic away. The dispatcher is also responsible for alerting both train crews and emergency crews about congestion or dangerous situations. A train dispatcher does not constantly control signals but must be prepared to do so if the need arises--as, for example, when an emergency call is received. At some times, especially when there is bad weather, there can be a constant stream of calls to a train dispatcher. Because dispatchers must be alert when they are on duty, and because the consequences of train wrecks can be severe, dispatchers are not allowed to work while under the influence of medications that might make them drowsy. Furthermore, train dispatchers are governed by strict federal regulations designed to insure that railroad employees who send train signals are alert. By regulating the hours that a train dispatcher can work, these regulations "promote the safety of employees and travelers on the railroads." 49 C.F.R. pt. 228, App. A.

In November 1998, Donahue sued Conrail under S 504 of the Rehabilitation Act of 1973, 29 U.S.C. S 704. He alleged that Conrail had violated the Act by failing to provide a reasonable accommodation that would have allowed him to continue working. Specifically, Donahue alleged that Conrail had failed to accommodate him by offering to transfer him to a position he could perform.

Section 504(a) of the Rehabilitation Act, 29 U.S.C. S 794(a), provides in pertinent part as follows:

No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .

We have set out the elements of a claim under this provision as follows:

To make out a prima facie case of discrimination under the Rehabilitation Act, the employee bears the burden of demonstrating (1) that he or she has a disability, (2) that he or she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he or she was nonetheless terminated or otherwise prevented from performing the job. The plaintiff must make a prima facie showing that reasonable accommodation is possible. If the plaintiff is able to meet these burdens, the defendant then bears the burden of proving, as an affirmative defense, that the accommodations requested by the plaintiff are unreasonable or would cause an undue hardship on the employer.

Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996). The elements of a claim under S 504(a) of the Rehabilitation Act are very similar to the elements of a claim under Title I of the Americans with Disabilities Act, 104 Stat. 328, 42 U.S.C. S 12111 et seq.² See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319-20 (3d Cir. 1999) (elements of a claim under the ADA).

An employer's obligation to provide a reasonable accommodation does not require the employer to create a new job. Mengine v. Runyon, 114 F.2d 415, 417 (3d Cir. 1997). However, an employer may be required to transfer an employee to an existing position. Mengine, 114 F.3d at 418; Shiring, 90 F.3d at 832, 42. In such a failure-to- transfer case, the plaintiff bears the burden of demonstrating: (1) that there was a vacant, funded position; (2) that the position was at or below the level of the plaintiff 's former job; and (3) that the plaintiff was qualified to perform the essential duties of this job with reasonable accommodation. If the employee meets his burden, the employer must demonstrate that transferring the employee would cause unreasonable hardship. Id.

Donahue sued under the theory that, at the time of his termination, there were vacant positions at an appropriate level for which he was qualified. The District Court held, however, that a reasonable jury could not find based on the summary judgment record that there were any such positions, and the Court therefore granted summary judgment in favor of Conrail. Donahue appealed.

II.

The principal question that we must decide in this appeal concerns Donahue's ability to perform the job of train dispatcher without posing a significant risk to others. Although Donahue argues that he could have performed the duties of several other positions without presenting any problems, the summary judgment record is insufficient to show that any of those other positions was vacant, funded, and "at an equivalent level or position as [his former job]." Shiring, 90 F.3d at 832.³ We therefore focus on the job of train dispatcher.

Although both parties and their amici agree that Conrail was not required to make Donahue a train dispatcher if doing so would have created a "significant risk" to the health or safety of others, the two sides disagree about the allocation of the burden of proof on this issue.⁴ Conrail and its amicus argue that Donahue, as part of his burden of proving that he was "qualified" for the train dispatcher position, was obligated to show that he would not present such a risk. By contrast, Donahue and the EEOC, relying chiefly on certain provisions of the Americans with Disabilities Act, maintain that Conrail bore the burden of proof on this issue.⁵

We find it unnecessary to decide this question. First, the argument that Conrail bore the burden of proof on this issue was never made to the District Court and was therefore waived. Second, even if we assume for the sake of argument that Conrail bore both the burden of production and the burden of persuasion on the issue of significant risk, we would still affirm the District Court's decision. As we will explain, no reasonable jury could fail to find that the evidence in the summary judgment record established that employing Donahue as a train dispatcher would have presented a significant risk to others.

In disability discrimination cases, courts must evaluate the significance of the risk that an employee would pose by considering four interrelated factors: the nature of the risk, the...