Dansie v. Union Pac. R.R. Co.

• Decision Date: 02 August 2022
• Docket Number: 20-4054
• Citation: 42 F.4th 1184
• Parties: Kelly DANSIE, an individual, Plaintiff - Appellant, v. UNION PACIFIC RAILROAD CO., a Delaware corporation, Defendant - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

42 F.4th 1184

Kelly DANSIE, an individual, Plaintiff - Appellant,

v.UNION PACIFIC RAILROAD CO., a Delaware corporation, Defendant - Appellee.

No. 20-4054

United States Court of Appeals, Tenth Circuit.

FILED August 2, 2022

Adam W. Hansen, Apollo Law LLC (Nicholas D. Thompson, The Moody Law Firm, Portsmouth, Virginia, Justin L. James, James, Dodge, Russell, & Stephens, P.C., Salt Lake City, Utah, and Michael E. Bourne, Minneapolis, Minnesota, with him on the brief), Minneapolis, Minnesota, for Plaintiff-Appellant Kelly Dansie.

Christopher Hedican, Baird Holm LLP (Michael J. Roccaforte, with him on the brief), Omaha, Nebraska, for Defendant-Appellee Union Pacific Railroad Company.

Before HARTZ, BRISCOE, and CARSON, Circuit Judges.

CARSON, Circuit Judge.

When an employee provides notice to his employer of a disability and expresses a desire for a reasonable accommodation, the employee and the employer must engage in good-faith communications—what we have termed the interactive process. Once an employee triggers the interactive process, both the employee and the employer have an obligation to proceed in a reasonably interactive manner to determine the employee's limitations and consider whether the accommodations he requests—or perhaps others that might surface during the interactive process—would enable the employee to return to work.

Plaintiff Kelly Dansie sued Defendant Union Pacific Railroad Company for terminating his employment in violation of the Americans with Disabilities Act ("ADA") and the Family Medical Leave Act ("FMLA"). The district court granted summary judgment for Defendant on Plaintiff's ADA claim but allowed the case to proceed to trial on Plaintiff's FMLA claim. The jury then returned a verdict in Defendant's favor. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse in part and affirm in part. Plaintiff presented sufficient evidence for a jury to find that Defendant failed to engage in the ADA mandated interactive process. Given that evidence, we reverse summary judgment for Defendant on Plaintiff's ADA claim and remand it to the district court for a trial. But we affirm the verdict for Defendant on Plaintiff's FMLA claim.

I.

Defendant, a railroad company, schedules its conductors using an on-call system. A dispatcher calls a conductor when Defendant needs him or her for work. The conductor at the top of the list at the time of the shift receives the first call. If that conductor is unavailable, the dispatcher calls the next conductor on the list. Under this system, Defendant requires the conductor to report for duty within two hours. Although Defendant runs its trains twenty-four hours a day, seven days a week, conductors are not on call during federally mandated rest periods. Defendant also provides conductors with paid vacation leave and paid personal leave under a union agreement. The union agreement also provides conductors with "reasonable" unpaid personal "layoffs"—where an on-call conductor schedules himself unavailable for work and he is called in for duty—and gives "significant consideration" to employees dealing with illness.

For the past twenty years, Plaintiff has lived and worked with an HIV-positive diagnosis. He has AIDS and testicular cancer—though his cancer

is in remission. Because of his medical conditions, Plaintiff requires ongoing treatment. Despite regularly undergoing physically taxing medical procedures, Plaintiff believes his condition is stable and his symptoms are manageable.

In 2004, Plaintiff began working for Defendant as a conductor. As a conductor, Defendant expected Plaintiff to work "full time." And Plaintiff understood that his job required him to be physically present on trains and that his job was a "safety-sensitive" position. Defendant's written attendance policy measures "attendance" for on-call employees based on their availability. The policy provides that employees must "protect" their "job assignment[s] on a full-time basis" and defines "full time" as "being available to work your assignment ... whenever it is scheduled." Defendant's attendance policy distinguished between two types of absences—agreement-provided compensated days and uncompensated layover days. Defendant provided the "agreement-provided compensated days off" as a time for "personal business." As to layoffs, the policy mandates that the employee must notify his or her manager before the layoff "if possible." But notification and documentation alone would not excuse the employee's "responsibility" to protect his or her job.

When an employee does not work full time, the company identifies that employee by examining:

A. Frequent, or pattern of, weekend layoffs.

B. Frequent, or pattern of, holiday layoffs.[ ]

C. Frequent personal layoffs.

D. Frequent sick/sickness in family layoffs without current medical documentation provided in advance when possible.

E. Lower availability/work days when compared to peers.

F. Missed calls/No show/Tardy/Refusal.

If an employee's attendance record warrants, Defendant will investigate. Defendant's policy provides for two written notices of violation. Those written offenses stay on an employee's record for three years. A violation during the thirty-six months following the date of the second written notice leads to permanent dismissal.

Through 2014, Plaintiff used the FMLA to cover his absences. But in September of 2014, Defendant terminated Plaintiff for an alleged safety violation. Plaintiff appealed his termination to the Public Law Board—an administrative body that hears disputes between railroad companies and their employees—which overturned his termination but declined to award him backpay. Plaintiff returned to work in January 2016—more than one year after his termination. Because the administrative body functionally commuted his termination to an unpaid suspension, Plaintiff temporarily lost his eligibility for FMLA leave.

Plaintiff repeatedly sought to use paid leave to cover his illness or medical appointments. But Defendant denied his requests. Defendant's records show it denied the requests because the "[c]urrent supply of crews does not meet demand." Thus Plaintiff would "lay off" and mark his status as "sick."

Eight months after reinstatement, Defendant charged Plaintiff with violating its attendance policy, alleging that Plaintiff had "laid off sick" six times in a ninety-day period. Plaintiff then requested what he believed to be a reasonable accommodation under the ADA. He asked Defendant's occupational health nurse for advice and the nurse referred him to Defendant's director of disability management in Nebraska, Terry Owens. After contacting Owens, Plaintiff and one of his physicians filled out Defendant's "Form E," titled "Medical Inquiry in Response to Request for Reasonable Accommodation." While filling out the form, Plaintiff sought clarification from Defendant about the definition of full-time employment. Plaintiff told Defendant that his doctor would need to see the definition of "full time" to fill out the paperwork and determine what would constitute a reasonable accommodation request. Defendant did not provide clarification.

Plaintiff's physicians submitted two Form E documents. The first explained that Plaintiff experienced fatigue and recovered slower from illnesses but that with sufficient rest, Plaintiff would be fully functional in his current position. Without a clarification on the attendance policy, Plaintiff's physician did not clearly understand Plaintiff's schedule requirements and hesitated to recommend a specific amount of time off work. After Owens told him the requested amount of time off was not specific enough, Plaintiff told Owens that he needed guidance. Plaintiff and Owens had a follow up discussion in which they discussed that Plaintiff would need five days a month. Plaintiff and his physician then completed a new Form E, which the physician estimated that Plaintiff would likely need five days off each month but cautioned that the estimate was subject to change because of the nature of Plaintiff's illness. Plaintiff's physician again noted that Defendant's unclear scheduling and attendance requirements prevented him from providing an estimate with certainty.

The parties disagree about what happened to Plaintiff's accommodation request after he submitted his amended Form E. Plaintiff asserts that a member of Defendant's disability-management team called him and told him that Defendant approved his request for an accommodation. Plaintiff has no documentation from Defendant to support his claim. Plaintiff believed that Defendant granted his request, so he suggested no other potential accommodations.

But Defendant's internal correspondence shows that Defendant would not accommodate up to five days off per month. Terry Brown, superintendent of Defendant's Utah Transportation Department, explained in his deposition that he needed Plaintiff to show up to work and Plaintiff's request for five days off—on top of his normal days off—was too much time. Brown also testified that the unpredictability of Plaintiff's request compounded the issue. And Plaintiff testified that when he told his immediate supervisor that he believed Defendant granted his accommodation request, his supervisor just shrugged and walked away. His supervisor testified that Plaintiff was on his "shit list" and that he believed Plaintiff was lazy because he failed to follow the attendance policy.

Before Defendant terminated him, Plaintiff testified that he asked for a dialogue among himself, his manager, and someone from the disability management office. Plaintiff requested that Owens intervene and explain what an ADA accommodation was to his supervisors. But Owens never did, and Plaintiff's supervisors charged him with attendance-policy violations three times. After his first violation, Defendant instructed Plaintiff "to mark up immediately and to remain available on a full time basis." Four months later, Defendant disciplined him on the same basis. Defendant...