Armitage v. BNSF Ry. Co.

• Decision Date: 06 July 2021
• Docket Number: Civil Action No. 4:20-cv-00209-O
• Parties: GARY ARMITAGE, Plaintiff, v. BNSF RAILWAY CO., Defendant.
• Court: U.S. District Court — Northern District of Texas

GARY ARMITAGE, Plaintiff, v. BNSF RAILWAY CO., Defendant.

Civil Action No. 4:20-cv-00209-O

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

July 6, 2021

MEMORANDUM OPINION AND ORDER

Before the Court are Defendant's Motion for Summary Judgment (ECF Nos. 30-32), filed on May 17, 2021; Plaintiff's Response (ECF No. 33-34), filed June 7, 2021; and Defendant's Reply (ECF No. 35), filed June 21, 2021. Having considered the motion, briefing, and applicable law, the Court GRANTS the motion.

I. BACKGROUND

This disability-discrimination lawsuit arises from Defendant BNSF Railway Company ("BNSF") disqualifying and removing Plaintiff Gary Armitage ("Plaintiff") from his job as a train dispatcher for failing to comply with BNSF's Restricted Medication List.

Beginning in 1996, Plaintiff worked for BNSF as a train dispatcher, a fast-paced, detail-oriented job responsible for safely managing the movement of trains, communicating with train conductors, and reacting in emergency situations "to protect the public, railroad employees and railroad property." Def.'s App 4-14, 158-59, 320, 324-25, 420-21, 584, 603, ECF No. 32. Following a 2003 motorcycle accident in which Plaintiff was injured, Plaintiff's physicians managed Plaintiff's chronic pain with prescription Fentanyl patches and Hydrocodone—a treatment he still requires today. Fifteen years after the accident, BNSF's Medical Department instituted a new policy for the health and safety of the public and its employees: BNSF employees who regularly use a medicine from the Restricted Medication List (including Fentanyl, Hydrocodone, and Oxycodone) could not work in BNSF's safety-sensitive positions—including as train dispatchers ("the Policy"). Pl.'s App., Ex. 1, ECF No. 34-2; Def.'s App. 315-17, 327-30, 333-42, 380-83, 393-96, 419-23, 425-26, 454, 468-75, 579-80, 582-83, 585-93, ECF No. 32. When the Policy became effective on January 15, 2018, Plaintiff would become medically disqualified to continue working as a train dispatcher, and BNSF urged those affected, like Plaintiff, to either transition away from those medications where feasible or seek medical leave to work with BNSF to be placed in another role. Def.'s App. 22-25, 31-32, 43, 53-57, 62-67, 160-61, 168, 391-96, 443-44, 454, ECF No. 32. During his leave, Plaintiff provided BNSF with his medical documentation and a letter from his treating pain physician explaining his long-term opioid therapy, the need to continue that therapy, and his ability to continue "functioning at optimal level[s.]" Pl.'s App., Ex. 2, ECF No. 34-2; Def.'s App 43-44, 67-78, 169-70 404-05, 429-31, 461, ECF No. 32.

A doctor from BNSF's medical department followed up with Plaintiff by phone and by letter, explaining the need for the Policy and the decision not to grant any exemptions to it. Pl.'s App., Ex. 3, ECF No. 34-3; Def.'s App. 43, 51, 59-64, 82-83, 171 313-14, 376-77, 388-89, 396-99, 402-03, 433-35, 454-60, 465, 484-85, 495-97, 583-84, 602, ECF No. 32. With BNSF's doctor's recommendation to the BNSF's Vocational Rehabilitation program, Plaintiff began working through the program to obtain a non-safety-sensitive position. Def.'s App. 83-96, 495-99, 500-26, 532-40, 542-45, 552-53, 558-60, 565-68, 572, 574-75, 594-95, 598-600, ECF No. 32. Ultimately, Plaintiff was placed temporarily and then selected permanently for a non-safety-sensitive manager job overseeing day-to-day tactical execution of train dispatcher manpower functions. Def.'s App. 94-95, 97-99, 553-57, 561-62, 569-71, ECF No. 32.

After exhausting his remedies before the EEOC, Plaintiff sued BNSF on March 5, 2020. See Compl., ECF No. 1. Following a motion to dismiss parts of the original complaint, see ECF No. 5, Plaintiff filed an Amended Complaint, the live pleading. Am. Compl. ¶¶ 18-26, ECF No. 12. During discovery, Plaintiff withdrew one of his claims and, in response to the present motion, abandoned several others. See Resp. 1, ECF No. 33. The only remaining claim against BNSF is Plaintiff's ADA disability-discrimination claim based on his disqualification from his train dispatcher position. Am. Compl. ¶¶ 18-26, ECF No. 12; see also Resp. 1, ECF No. 33. Defendant moved for summary judgment on all remaining claims. Mot. 1, ECF No. 31. The motion is now ripe for the Court's consideration. See Resp., ECF Nos. 33-34; Reply, ECF No. 35.

II. LEGAL STANDARD

The Court may grant summary judgment where the pleadings and evidence show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is not "a disfavored procedural shortcut," but rather an "integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotation marks omitted).

"[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute as to any material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant must inform the court of the basis of its motion and demonstrate from the record that no genuine dispute as to any material fact exists. See Celotex, 477 U.S. at 323. "The party opposing summaryjudgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

When reviewing the evidence on a motion for summary judgment, courts must resolve all reasonable doubts and draw all reasonable inferences in the light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). The court cannot make a credibility determination in light of conflicting evidence or competing inferences. Anderson, 477 U.S. at 255. If there appears to be some support for disputed allegations, such that "reasonable minds could differ as to the import of the evidence," the court must deny the motion. Id. at 250.

III. ANALYSIS

Defendant contends that summary judgment is proper because there is no genuine dispute of material fact as to Plaintiff's remaining ADA disability-discrimination claim. Mot. 1, ECF No. 31. In response, "Plaintiff submits that factual disputes remain concerning whether BNSF conducted an individualized direct threat analysis." Resp. 1, ECF No. 33. For the following reasons, the Court concludes that Defendant is entitled to summary judgment.

"The ADA prohibits employers from discriminating against an employee on the basis of a disability as defined by the Act." Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 764 (5th Cir. 2016) (citing 42 U.S.C. § 12112 (2009)). "In a discriminatory-termination action under the ADA, the employee may either present direct evidence that she was discriminated against because of her disability or alternatively proceed under the burden-shifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014). Plaintiff contends "there is no dispute [BNSF] medically disqualified Armitage becauseof his chronic pain condition and use of narcotic pain medication." Resp. 2, ECF No. 34 (citing Pl.'s App., Ex. 3, ECF No. 34-3); see also id. at 3 ("Plaintiff submits that BNSF's conduct is direct discrimination such that the case turns on a direct threat analysis.").

"[D]irect evidence is rare." Portis v. First Nat'l Bank of New Albany, 34 F.3d 325, 328 (5th Cir. 1994). The Fifth Circuit defines "direct evidence" as "evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002); see also Clark v. Champion Nat'l Sec., Inc., 952 F.3d 570, 579 (5th Cir.), cert. denied sub nom. Clark v. Inco Champion Nat'l Sec., Inc., 141 S. Ct. 662 (2020). "A statement or document which shows 'on its face that an improper criterion served as a basis—not necessarily the sole basis, but a basis—for the adverse employment action [is] direct evidence of discrimination.'" Herster v. Bd. of Supervisors of La. State Univ., 887 F.3d 177, 185 (5th Cir. 2018) (quoting Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 993 (5th Cir. 2005)).

Here, Plaintiff points to a January 16, 2018, letter from BNSF Senior Manager Chad Shramek to Plaintiff as direct evidence of disability discrimination. Resp. 2, ECF No. 34 (citing Pl.'s App., Ex. 3, ECF No. 34-3). The letter in totality reads

As of January 16, 2018, you have not complied with the Medical Department[']s requests regarding your fitness for duty. Accordingly, you are being placed on a medical leave of absence until February 15, 2018. If at any time during this MLOA you comply with the requirements outlined in Medical Department[']s letters to you, your fitness for duty will be reviewed[,] and you could be returned to service. Otherwise, the Medical Department will determine you to be disqualified from performing safety-sensitive duties on February 16, 2018.

For questions regarding your fitness to perform safety-sensitive duties and the requirements per the Medical Department, please refer to the letters you have received from the Medical Department. The contact should be either Carol Wilks at 817-352-1618 or Cindy OConnell at 817-352-1663.

Pl.'s App., Ex. 3, ECF No. 34-3.

First, the letter on its face provides that "not compl[ying] with the Medical Department[']s requests" was the basis of the decision to place Plaintiff on medical leave. Id. This sort of vague reference, without context, requires the Court to look outside the face of the letter to understand the basis for BNSF's action, a step that would relegate the letter to only circumstantial evidence. See Herster, 887 F.3d at 185 (direct evidence...