Equal Emp't Opportunity Comm'n v. Burlington N. Santa Fe R.R., Case No. 12-2634-JWL
| Decision Date | 13 March 2014 |
| Docket Number | Case No. 12-2634-JWL |
| Parties | Equal Employment Opportunity Commission, Plaintiff, Kent Duty, Plaintiff-Intervenor, v. Burlington Northern Santa Fe Railroad, Defendants. |
| Court | U.S. District Court — District of Kansas |
The Equal Employment Opportunity Commission (EEOC) filed suit against defendant Burlington Northern Santa Fe Railroad (BNSF) under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., alleging that BNSF regarded a job applicant as disabled when it failed to hire that applicant to work as a locomotive electrician. That job applicant, Kent Duty, intervened in the lawsuit, alleging the same "regarded as" claim set forth by the EEOC and additional claims under the ADA—namely, that BNSF failed to hire him based on an actual disability and/or in retaliation for engaging in protected activities and failed to reasonably accommodate his disability. This matter is presently before the court on plaintiffs' joint motion for review (doc. 127) of the magistrate judge's order granting in part and denying in part plaintiffs' motion to compel defendant to permit an inspection of its Argentine facility under Federal Rule of Civil Procedure 34. As will be explained, the motion is denied.
By way of background, BNSF hired Mr. Duty as a locomotive electrician subject to a medical examination. Several months later, BNSF revoked the conditional offer of employment that it had extended to Mr. Duty because it determined, after a medical evaluation, that he could not meet BNSF's requirement that he have three points of contact when ascending and descending ladders and he could not grip tools firmly with both hands. Mr. Duty does not dispute that he has physical impairments to his right hand and wrist as a result of injuries he sustained in a car accident and that, as a result of this impairment, Mr. Duty has limited grip strength in his right hand and limitation in the range of motion in his right hand and wrist. In light of BNSF's contention that Mr. Duty could not perform the essential functions of the locomotive electrician position, plaintiffs filed a motion to compel BNSF to allow plaintiffs and their experts access to BNSF's Argentine facility "to observe, measure, document and record performance of the essential functions of the Locomotive Electrician position and consider potential accommodations for Mr. Duty, as permitted under Rule 34 of the Federal Rules of Civil Procedure."
In large part, Magistrate Judge Gale denied the motion and concluded that many aspects of plaintiffs' request went beyond the proper scope of a Rule 34 inspection. Judge Gale concluded that plaintiffs were not entitled to pose questions to BNSF's employees during the inspection; that BNSF was not required to designate which tasks being observed are "essential functions" relied upon by BNSF in denying employment to Mr. Duty; that BNSF was not required to provide a viewing of "representative tasks" at issue in the case; and that plaintiffs would not be permitted to engage in on-site testing of Mr. Duty in an effort to prove that Mr. Duty could perform the tasks being observed. In the end, Judge Gale concluded that plaintiffs(plus one attorney each, one expert and one camera operator) were entitled to observe (from a designated area) Locomotive Electrician work being performed in the ordinary course of business over a two-day period lasting no more than 6 hours per day. Judge Gale further ordered that persons attending the inspection could not ask substantive questions of BNSF employees and that BNSF was required to accommodate reasonable requests from plaintiffs' expert to approach the work area to make measurements of the work area and climbing devices.
In their motion to review, plaintiffs challenge only that aspect of Judge Gale's order that "relieves" BNSF of the "obligation" to ensure that plaintiffs observe a Locomotive Electrician actually performing the essential functions that BNSF claims Mr. Duty could not perform. According to plaintiffs, they and their expert need the ability to view these job functions so that they can create an accurate test to demonstrate that Mr. Duty can perform them. In reviewing Judge Gale's order, the court is required to defer to the magistrate judge's ruling "unless it was clearly erroneous or contrary to law." Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006). Curiously, plaintiffs' motion to review does not reference this standard in any respect and plaintiffs do not even suggest that Judge Gale's order is clearly erroneous or contrary to law— plaintiffs simply disagree with Judge Gale's approach and ask this court to modify the order. In response to BNSF's suggestion that plaintiffs' approach is fatal to their request for review, plaintiffs urge in their reply brief that "this court is free to render its own decisions under de novo review, regardless of whether it feels a mistake has been committed."
In support of their argument that the court should give do novo review to Judge Gale's order, plaintiffs rely on Leventhal v. Schaffer, 612 F. Supp. 2d 1026, 1036 (N.D. Iowa 2009) and contend that Leventhal holds that the "clearly erroneous" standard is the "minimum" standard ofreview applicable to non-dispositive orders under Federal...
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