Baker v. Union Pac. R.R. Co.

• Decision Date: 18 January 2022
• Docket Number: 8:20CV315
• Parties: John BAKER, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — District of Nebraska

580 F.Supp.3d 647

John BAKER, Plaintiff,

v.UNION PACIFIC RAILROAD COMPANY, Defendant.

8:20CV315

United States District Court, D. Nebraska.

Signed January 18, 2022

Anthony S. Petru, Pro Hac Vice, Hildebrand, McLeod Law Firm, Oakland, CA, Charles A. Delbridge, Pro Hac Vice, David E. Schlesinger, Pro Hac Vice, James H. Kaster, Pro Hac Vice, Laura Baures, Pro Hac Vice, Lindsey E. Krause, Pro Hac Vice, Neil D. Pederson, Pro Hac Vice, Robert L. Schug, Pro Hac Vice, Nichols, Kaster Law Firm, Minneapolis, MN, Corey L. Stull, Atwood, Holsten Law Firm, Lincoln, NE, Nicholas D. Thompson, Casey Jones Law Firm Casey Jones Law LLC, Appleton, WI, for Plaintiff.

Allison D. Balus, Christopher R. Hedican, David P. Kennison, Leigh C. Joyce, Scott P. Moore, Pro Hac Vice, Baird, Holm Law Firm, Omaha, NE, for Defendant.

MEMORANDUM AND ORDER

Joseph F. Bataillon, Senior United States District Judge This matter is before the Court on defendant Union Pacific Railroad Company's ("U.P." or "the Railroad") motion for summary judgment, Filing No. 365. The plaintiff, John Baker, alleges that U.P. violated the Americans with Disabilities Act ("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 (2008), when it imposed work restrictions that prevented him from returning to work for a year after a fitness-for-duty assessment. He alleges he is a victim of U.P.’s discriminatory fitness-for-duty policies and practices. He asserts disparate treatment and disparate impact claims of disability discrimination, failure to accommodate, impermissible medical examination under 42 U.S.C. § 12112(d)(1) and (4) and violations of the genetic information nondiscrimination act, 42 U.S.C. § 2000ff et seq. U.P. denies the plaintiff's allegations and asserts affirmative defenses of business necessity and direct threat. It contends the plaintiff's medical condition posed a significant risk to his or to others’ health and/or safety and the risk could not have been eliminated or reduced by a reasonable accommodation.

In its motion for summary judgment, U.P. first argues that Baker's disability claim fails as a matter of law because he cannot show discriminatory intent. It argues that the evidence shows as a matter of law that U.P. made a reasonable medical judgment. It also argues that Baker lacks statistical evidence necessary to support a disparate impact claim and he cannot identify any facially neutral employment policy that caused him or anyone else to be screened out because of a disability. Further, the Railroad argues that Baker's failure to accommodate claim cannot advance because he admits that he proceeds only under the "regarded as" theory and his unlawful medical inquiry and genetic information claims fail because the fitness-for-duty review was appropriately narrow, and Union Pacific took no action based on any genetic information.

U.P. argues that the only true dispute in this case is whether a four-month restrictive period, advocated by the plaintiff's experts, or a 12-month period of restrictions, imposed by U.P. medical experts is objectively reasonable. It argues that the duration of those restrictions cannot be grounds for disability discrimination when all that separates experts’ opinions on both sides is a few months.

In response, the plaintiff contends he can prove that U.P.’s decision to remove him from his job for a year was based on a misdiagnosis of his medical condition that was objectively unreasonable. It argues the case should be allowed to proceed to a jury.

I. FACTS

The following facts are gleaned from the parties’ respective statements of undisputed fact and from the record.¹ See Filing No. 366, defendant's brief at 3-15; Filing No. 373, plaintiff's response at 2-21; Filing No. 381, defendant's reply brief at 2-17. The parties agree that Baker began working for Union Pacific in 2004, most recently as a switchman. A switchman is responsible for traffic control, hostler operations, and other general train services. A switchman breaks down and builds up trains that arrive in the yard. The job requires climbing on and off train cars and locomotives. Filing No. 366-2, Deposition of John Baker ("Baker Dep.") at 35. The switchman's written job description identifies the essential functions of the position, including riding on moving railcars; operating locomotives between different shop locations; operating track switches to route train cars. Filing No. 366-4, Ex. 1C, job description. In the fall of 2014, Baker was working as a hostler in Little Rock, Arkansas. Filing No. 373-2, Declaration of John Baker ("Baker Decl.") at 1. His job duties included attending to the switches in a railroad yard, breaking down trains and switching trains from one track to another. Id. In a team, he took turns, with one team member operating the locomotive and the other working on the ground of the train yard. Id.

In his complaint, Baker alleges that in the fall of 2014, he experienced lightheadedness on a couple of isolated instances outside of work and underwent medical testing to investigate the incidents. Filing No. 341, Amended Complaint at 7; see also Filing No. 373-2, Baker Decl. at 1. On November 5, 2014, Baker reported having headaches and dizziness and informed U.P. that his doctor had recommended that he not operate heavy machinery while undergoing testing. Filing No. 368-12, Ex. 2B, Medical Comments History at 6. On November 6, 2014, Baker provided Union Pacific with a note from his treating physician, Dr. Robert Silzer. Id.

Pending the results of the medical testing, Baker asked Union Pacific to be temporarily removed from the list of qualified hostlers. Filing No. 373-2, Baker Decl. at 2. Rather than doing so, Union Pacific took Baker completely out of service without pay. Id. U.P. sent Baker a letter dated November 6, 2014, stating that he would require a fitness for duty review prior to his return to work, in accordance with U.P. Safety Rule 90.4. Filing No. 368-3, Ex. 1G.

In connection with its evaluation, U.P. requested medical records including "diagnostic study reports including lab work (medication levels), EEG (awake and/or sleep deprived), Tilt table test, CT scan

, MRI, etc.;" "physician clinic notes (also known as office notes or progress notes) from the provider treating [him] for this condition" and a "[l]ist of current medications." Filing No. 368-3, Ex. 1G, U.P. letter. U.P. was provided records that showed that in May 2013, Baker had been seen in an emergency room because he felt "weak and tired." Filing No. 368-11, Ex. 2A at 14-16. He denies that he lost consciousness and the emergency room discharge instructions identified "dehydration" as the reason for his visit. Id. Under the category, "clinical impression," the physician checked "CVA (stroke );" "pneumonia ;" and "syncope." Id. He had blood work and a CT scan which were normal. Id. at 16. Baker was instructed to drink plenty of fluids. Id. His wife reports that he did not lose consciousness. Filing No. 373-4, Declaration of Jessica Baker.

On August 26, 2013, Baker was seen by cardiologist Scott Davis, M.D., for, what he contends was, a follow up visit. Medical records indicate his chief complaint was syncope/near syncope. Filing No. 368-11, Office consult record at 1. At that visit, Baker complained of "feelings of loss of consciousness" that began three months earlier and had occurred only once. Id. at 1. The office notes state that the patient reported extreme fatigue, confusion, gait disturbances and slurred speech with the episodes, but Baker disputes that he made that statement. Filing No. 368-11, Office Consult record at 1; Filing No. 373-3, Second Declaration of John Baker at 1. The doctor's notes indicate that Baker had no TIA or stroke-like symptoms. Filing No. 368-11, Office Consult record at 1. An echocardiogram

performed that day was normal and Dr. Davis ordered a stress test using Bruce protocol and a 48-hour Holter test. Id. at 2. Later medical records showed the cardiac work up results were normal. Id. at 4-5. Baker later underwent "head up tilt table" (HUTT) testing in November 2014 and "the test was negative for any suggestions of neurocardiogenic syncope

." Id. at 7. The attending Electrophysiologist, Blake Norris, M.D., suggested that Baker increase sodium and fluid intake for volume expansion. Id.

In October 2014, Baker was seen by a neurologist, Dr. Robert Silzer, reporting episodes of dizziness, confusion and a "staring spell with delirium

witnessed by his wife" one month earlier that Baker did not remember. Filing No. 368-1, Ex. 1D at 1. Baker had symptoms of fatigue malaise and night seats. Filing No. 368-1 at 3. Baker's wife, a certified registered nurse anesthetist (CRNA), reported to Dr. Silzer that Baker "look[ed] postictal after these events." Filing No. 368-1 at 1. Although Dr. Silzer's records identify his diagnosis as "syncope," Dr. Silzer explained that a "spell" is a more accurate term but there is no International classification of diseases ("ICD") code for a spell, so a doctor has to come up with the closest to get a workup going that the insurance company would be happy with." Filing No. 375-14, Ex. 1E, Deposition of Robert Silzer ("Silzer Dep.") at 16-17. He testified that "syncope" is passing out and loss of consciousness" but that "to say that [Baker was having true syncope and he was passing out is—I mean if you have read my notes you know that is not exactly the case." Id. at 16. Dr. Silzer stated that agreed that "what Mr. Baker had was not necessarily syncope, but just a spell that could not be diagnosed as a black-and-white condition." Id. at 20. Dr. Silzer also stated that Baker did not have any seizures. Id. at 51.

Dr. Silzer advised that Baker needed additional neurological testing and recommended that during the time of neurological testing that Baker refrain from driving and operating heavy machinery. Filing No. 368-2, Exhibit 1F at 1. However, Dr. Silzer did...