902 F.3d 916 (9th Cir. 2018), 16-35457, Equal Employment Opportunity Commission v. BNSF Railway Co.

Docket Nº:16-35457
Citation:902 F.3d 916
Opinion Judge:GOULD, Circuit Judge:
Party Name:EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. BNSF RAILWAY COMPANY, Defendant-Appellant.
Attorney:Bryan P. Neal (argued) and Stephen F. Fink, Thompson & Knight LLP, Dallas, Texas; Kenneth J. Diamond, Winterbauer & Diamond PLLC, Seattle, Washington; for Defendant-Appellant. Susan Ruth Oxford (argued), Attorney; Margo Pave, Assistant General Counsel; Jennifer S. Goldstein, Associate General Cou...
Judge Panel:Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges.
Case Date:August 29, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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902 F.3d 916 (9th Cir. 2018)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee,

v.

BNSF RAILWAY COMPANY, Defendant-Appellant.

No. 16-35457

United States Court of Appeals, Ninth Circuit

August 29, 2018

Argued and Submitted February 8, 2018, Seattle, Washington

Amended September 12, 2018

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[Copyrighted Material Omitted]

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Bryan P. Neal (argued) and Stephen F. Fink, Thompson & Knight LLP, Dallas, Texas; Kenneth J. Diamond, Winterbauer & Diamond PLLC, Seattle, Washington; for Defendant-Appellant.

Susan Ruth Oxford (argued), Attorney; Margo Pave, Assistant General Counsel; Jennifer S. Goldstein, Associate General Counsel; James L. Lee, Deputy General Counsel; U.S. Equal Employment Opportunity Commission, Washington, D.C.; for Plaintiff-Appellee.

John R. Annand and Rae T. Vann, NT Lakis LLP, Washington, D.C.; Kathryn Comerford Todd and Warren Postman, U.S. Chamber Litigation Center Inc., Washington, D.C.; for Amici Curiae Equal Employment Advisory Council and Chamber of Commerce of the United States of America.

Jeffrey L. Needle, Law Offices of Jeffrey L. Needle, Seattle, Washington; Jesse Wing, MacDonald Hoague & Bayless, Seattle, Washington; for Amicus Curiae Washington Employment Lawyers Association.

Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, Senior District Judge, Presiding, D.C. No. 2:14-cv-01488-MJP

Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

SUMMARY

[*]

Americans with Disabilities Act

The panel affirmed the district court's judgment imposing liability on BNSF Railway Company under the Americans with Disabilities Act ("ADA"); vacated the nationwide injunction that prohibited BNSF from engaging in certain hiring practices; and remanded with instructions for the district court to apply the traditional four-factor test to determine whether to issue a permanent injunction, and if so, the scope of the injunction.

Russell Holt received a conditional job offer from BNSF for the position of Senior Patrol Officer contingent on Holt's satisfactory completion of a post-offer medical review. BNSF demanded that Holt submit an MRI of his back at his own cost, which he could not afford. BNSF revoked Holt's job offer, and the Equal Employment Opportunity Commission sued BNSF for violations of the ADA.

The panel held that the EEOC demonstrated all three elements of a 42 U.S.C. § 12112(a) claim by showing (1) that Holt had a "disability" within the meaning of the ADA because BNSF perceived him to have a back impairment; (2) that Holt was qualified for the job; and (3) that BNSF impermissibly conditioned Holt's job offer on Holt procuring an MRI at his own expense because it assumed that Holt had a back impairment. The panel noted that BNSF offered no affirmative defense on appeal; and affirmed the district court's holding that the EEOC made a prima facie case for a violation of ADA, and was entitled to summary judgment.

The district court held that it could grant an injunction to the EEOC by statute, without looking to the four-factor test for injunctive relief. The panel held that it need not, and did not, decide whether the standard four-factor test for injunctive relief was required in the Title VII/ADA context, because even if the four-factor test applied, that test would be satisfied. Namely, the panel held that Holt suffered an irreparable injury, the remedies at law were inadequate, and the balance of equities, and the public interest weighed in favor of an injunction. The panel concluded that the district court properly entered an injunction.

The panel held that the district court must make further factual findings to support the scope of the injunction; and remanded for the district court to establish the proper scope of the injunction.

OPINION

GOULD, Circuit Judge:

Russell Holt received a conditional job offer from BNSF Railway Company ("BNSF") for the position of Senior Patrol Officer, contingent on Holt’s satisfactory completion of a post-offer medical review. During that medical review, Holt disclosed that he had injured his back four years before, suffering a two-level spinal disc extrusion. Holt’s primary care doctor, his chiropractor, and the doctor BNSF’s subcontractor hired to examine Holt all determined that Holt had no current limitations due to his back and found no need for follow-up testing. Yet as an effective condition to consider him further for the job, BNSF demanded that Holt submit an MRI of his back— at his own cost— or it would treat Holt as having declined the offer. Holt was in bankruptcy at that time and did not obtain an MRI. As a result, BNSF revoked Holt’s job offer.

The district court concluded that BNSF’s actions violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., as amended by the ADA Amendments Act of 2008 ("ADAAA") Pub. L. No. 110-325, 122 Stat. 3553, and issued a nationwide injunction that prohibited BNSF from engaging in certain hiring practices. We affirm the district court’s judgment imposing ADA liability, but we vacate the injunction and remand with instructions for the district court to make

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further factual findings in order to establish the proper scope of the injunction.

I

In June 2011, Holt applied for a job with BNSF as a Senior Patrol Officer. BNSF describes the job duties of a Senior Patrol Officer as "essentially the same" as a city police officer: Patrol Officers protect the safety of people and property, prevent and respond to criminal activities, and arrest suspects, among other duties. At the time he applied to work for BNSF, Holt was working as a criminal investigator in the Pulaski County Sheriff’s Office in Little Rock, Arkansas, where he had worked for five years. After interviewing Holt, BNSF extended him an offer of employment— contingent upon him passing a background check and satisfactorily completing a post-offer medical exam.

BNSF contracts with Comprehensive Health Services ("CHS") to coordinate its medical evaluations nationwide. CHS requires applicants to take a strength test, have a basic physical examination, complete the CHS medical questionnaire, submit to a clinical exam, answer any follow-up questions, and potentially undergo a targeted medical examination. For any cases in which the decision to clear or reject an applicant is not routine, BNSF’s medical department, not CHS, decides whether an applicant is medically qualified.

Holt proceeded through CHS’s evaluation process. In his health questionnaire, Holt disclosed that he had injured his back in 2007 and suffered back pain as a result. An MRI had shown that he had a two-level disc extrusion, meaning that the nucleus pulposus had escaped from two of his spinal discs. In layman’s terms, this was described as the "jellylike material" inside two of Holt’s spinal discs having been pushed out of the discs and into the spinal column. A follow-up MRI in 2009 showed that one of Holt’s spinal discs had broken off, and a chunk of that spinal disc was then floating in Holt’s spinal canal.1 After his back injury, Holt had regularly visited a chiropractor for "maintenance."

Holt also suffered from knee pain in March 2011, as well as some associated back pain, which led him to see his primary care doctor, Dr. Richard Heck. Dr. Heck stated that an MRI of Holt’s knee might be warranted, but one was never ordered, and Holt’s knee and back pain appears to have resolved with medication, chiropractic care, and physical therapy.

On September 21, 2011, the day after Holt submitted his questionnaire disclosing his prior back injury, a CHS nurse called him with more questions about his back. Holt told her that he had kept the same job after his back was injured and that he had no current back issues. The nurse asked him to submit his medical records relating to his back. Within a week, Holt had submitted his medical records; a letter from his chiropractor stating that Holt had responded well to care; the 2007 MRI; and a note from Dr. Heck— who had just reexamined Holt that week— stating that Holt had no current back problems and had functioned normally since 2009.

CHS’s subcontractor, Concentra, then assigned Dr. Marcia Hixson to conduct a medical exam of Holt. Dr. Hixson was informed generally of Holt’s prior back injury,2 and she said that she looked at his back a "little more closely" than usual as part of her "very thorough" exam. Dr.

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Hixson’s exam revealed no issues— with Holt’s back or otherwise— that would prevent him from performing the duties of the Patrol Officer job, and she saw no need for a follow-up exam; Dr. Hixson relayed these conclusions on the written examination report.

CHS then...

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