900 F.3d 1166 (10th Cir. 2018), 17-3120, Lincoln v. BNSF Railway Co.

Docket Nº:17-3120
Citation:900 F.3d 1166
Opinion Judge:McHUGH, Circuit Judge.
Party Name:Larry D. LINCOLN; Brad C. Mosbrucker, Plaintiffs-Appellants, v. BNSF RAILWAY COMPANY, Defendant-Appellee. U.S. Equal Employment Opportunity Commission, Amicus Curiae.
Attorney:David E. Schlesinger, Nichols Kaster, PLLP, Minneapolis, Minnesota (Charles A. Delbridge and Lindsey Krause, Nichols Kaster, PLLP, Minneapolis, Minnesota; and Sean M. McGivern, Graybill & Hazlewood LLC, Wichita, Kansas, with him on the briefs), for Plaintiffs - Appellants. David R. Cooper, Fisher...
Judge Panel:Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
Case Date:August 17, 2018
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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900 F.3d 1166 (10th Cir. 2018)

Larry D. LINCOLN; Brad C. Mosbrucker, Plaintiffs-Appellants,

v.

BNSF RAILWAY COMPANY, Defendant-Appellee.

U.S. Equal Employment Opportunity Commission, Amicus Curiae.

No. 17-3120

United States Court of Appeals, Tenth Circuit

August 17, 2018

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Appeal from the United States District Court for the District of Kansas, (D.C. No. 5:15-CV-04936-DDC)

David E. Schlesinger, Nichols Kaster, PLLP, Minneapolis, Minnesota (Charles A. Delbridge and Lindsey Krause, Nichols Kaster, PLLP, Minneapolis, Minnesota; and Sean M. McGivern, Graybill & Hazlewood LLC, Wichita, Kansas, with him on the briefs), for Plaintiffs - Appellants.

David R. Cooper, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, Kansas (Bryan P. Neal, Thompson & Knight LLP, Dallas, Texas, with him on the brief), for Defendant - Appellee.

Gail S. Coleman, Attorney (James L. Lee, Deputy General Counsel; Jennifer S. Goldstein, Associate General Counsel; and Elizabeth E. Theran, Acting Assistant General Counsel, with her on the brief), United States Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae United States Equal Employment Opportunity Commission

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.

OPINION

McHUGH, Circuit Judge.

Several years after a tank car spill accident, Larry D. Lincoln and Brad C. Mosbrucker (collectively "Appellants") advised BNSF Railway Company ("BNSF") that medical conditions attributable to the accident rendered them partially, permanently disabled and prevented them from working outdoors. Upon learning of Appellants’ alleged medical conditions, BNSF removed Appellants from service as Maintenance of Way ("MOW") workers purportedly due to safety concerns and because MOW work entails outdoor work. With some assistance from BNSF’s Medical and Environmental Health Department ("MEH"), Appellants each applied for more than twenty jobs within BNSF during the four years following their removal from service. After not being selected for several positions, Appellants filed charges with the Equal Employment Opportunity Commission ("EEOC"), accommodation request letters with BNSF, and complaints with the Occupational Safety Health Administration ("OSHA").

Following BNSF’s rejection of their applications for additional positions, Appellants filed a complaint raising claims for: (1) discrimination under the Americans with Disabilities Act ("ADA"); (2) failure to accommodate under the ADA; (3) retaliation under the ADA; and (4) retaliation under the Federal Railroad Safety Act ("FRSA"). In a motion for summary judgment, BNSF raised an exhaustion defense and also challenged the merits of Appellants’ claims. Relying on nearly forty years of precedent from this court, the district court concluded that filing an EEOC charge was a jurisdictional prerequisite to suit and it dismissed several parts of Appellants’ ADA claims for lack of jurisdiction. The district court simultaneously granted summary judgment on the portions of the ADA claims that survived its jurisdictional ruling, concluding that Appellants neither qualified for the positions for which they applied nor established an inference of discrimination relative to BNSF’s decision not to select them for the positions. As to the FRSA claims, the district

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court determined that Appellants failed properly to exhaust their OSHA administrative remedies relative to most of the positions to which they applied and failed to show that their engagement in protected activity contributed to BNSF’s decision not to select them for positions that survived the exhaustion determination.

On appeal, Appellants, and the EEOC as amicus, ask this panel to overturn this court’s precedent that filing an EEOC charge is a jurisdictional prerequisite to suit. After polling the full court, we overturn our precedent that filing an EEOC charge is a jurisdictional prerequisite to suit. Thus, we reverse the district court’s jurisdictional rulings and remand Appellants’ ADA discrimination and ADA failure to accommodate claims relative to some of the positions over which the district court determined it lacked jurisdiction.

Appellants also challenge the vast majority of the district court’s summary judgment determinations on the merits of their claims that survived the court’s exhaustion rulings. But in advancing their arguments on appeal, counsel for Appellants submitted a deficient appendix that fails to satisfy the requirements set out in Federal Rules of Appellate Procedure 10(b)(2) and 30(a)(1) and in Tenth Circuit Rule 10.3. These deficiencies impede our ability to reach firm conclusions on the viability of portions of Appellants’ ADA discrimination and failure to accommodate claims and on the entirety of Appellants’ ADA retaliation claims. On the position-based ADA discrimination and failure to accommodate claims for which we are able to reach a firm conclusion, we affirm in part and vacate in part. We also affirm the district court’s grant of summary judgment on Appellants’ FRSA claims. Finally, based on the deficiencies in the appendix submitted by Appellants, we invoke our discretion under Federal Rule of Appellate Procedure 39(a)(4) to preclude Appellants from seeking any of their appellate costs and instead permit BNSF to recover its appellate costs.

I. BACKGROUND

A. Factual History

On October 9, 2007, a BNSF tank car sprung a leak near where Appellants were working, exposing Appellants to 2-chlorobenzyl chloride. Following the tank car spill accident, Appellants attempted, for over two years, to negotiate a monetary settlement with BNSF as to the injuries they sustained from the accident. During that two-year period, Appellants continued to perform their duties as MOW workers for BNSF. By May 2010, settlement negotiations broke down and an attorney representing Appellants relative to the accident sent BNSF demand letters. The demand letter on behalf of Mr. Lincoln stated that Mr. Lincoln continued to suffer from headaches, upper respiratory infections, reactive airways dysfunctions syndrome ("RADS"), nosebleeds, lesions/hormonal issues, endocrine disruption, vision issues, post-traumatic stress disorder ("PTSD"), and anxiety issues as a result of the accident. The demand letter on behalf of Mr. Mosbrucker stated that Mr. Mosbrucker continued to suffer from eye issues, respiratory issues, and PTSD as a result of the accident.

MEH received word of the demand letters, consulted with a BNSF field medical officer, and determined the medical issues alleged in the demand letters raised concerns about whether Appellants could safely perform their duties as MOW workers. Accordingly, MEH placed Appellants on medical leave pending medical evaluations. In 2010 and 2011, BNSF received correspondence from Appellants’ nurse practitioners indicating Appellants could not return

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to their MOW positions or perform any outdoor work.1

From 2010 through at least late 2012, MEH encouraged Appellants to engage in vocational training and to pursue college degrees in the hope of qualifying and being selected for non-MOW positions at BNSF.2 MEH also identified several positions to which Appellants might apply and helped advance their applications to the interview stage of the hiring process. Between August 2, 2010, and March 28, 2013, Mr. Lincoln submitted twenty-one job applications. BNSF did not select Mr. Lincoln for any of these positions. In July 2014, the union to which Mr. Lincoln and other BNSF railway workers belonged selected Mr. Lincoln for a Safety Assistant position, but BNSF rejected the selection. Between August 2, 2010, and November 24, 2014, Mr. Mosbrucker submitted twenty-two job applications; BNSF did not select him for any of these positions.

The positions for which Appellants applied fell into two categories— clerk positions and shop positions— with most of the shop positions being performed primarily in Building 12 of BNSF’s Topeka, Kansas, railyard. Jeanne Artzer, a BNSF Human Resources employee, was the hiring manager for most or all of the positions to which Appellants applied after September 2012.

B. Pre-Litigation Procedural Events Relevant to ADA & FRSA Claims

The following pre-litigation procedural events are relevant to either the triggering of rights or the exhaustion of administrative remedies under the ADA or the FRSA. First, on October 1, 2012, Appellants each submitted an accommodation request letter to BNSF, seeking a job placement with a restriction for only infrequent exposure to the outdoors. Both letters asked BNSF to "enter into the interactive process" and to "continue the present search for a non-MOW placement for [each of the Appellants] within BNSF." BNSFed.Appx. at 271, 718. However, neither Appellant attached any documentation from a health professional to his accommodation request letter, as required by the form instructions. Thus, while Appellants’ accommodation request letters suggested that Appellants believed they could perform the duties of a position that entailed some outdoor exposure, the only medical documentation BNSF ever received indicated that Appellants could not work outdoors at all.3

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Second, the following administrative actions occurred relative to the EEOC. On February 10, 2013, Appellants each filed an EEOC charge. On May 7, 2015, Mr. Mosbrucker filed...

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