Higgins v. Union Pac. R.R. Co.

• Decision Date: 28 March 2018
• Docket Number: 8:16CV539
• Parties: Jon D. HIGGINS, Plaintiff, v. UNION PACIFIC RAILROAD CO., Defendant.
• Court: U.S. District Court — District of Nebraska

303 F.Supp.3d 945

Jon D. HIGGINS, Plaintiff,

v.UNION PACIFIC RAILROAD CO., Defendant.

8:16CV539

United States District Court, D. Nebraska.

Signed March 28, 2018

Charles A. Delbridge, Pro Hac Vice, David E. Schlesinger, Pro Hac Vice, Nichols, Kaster Law Firm, Minneapolis, MN, Corey L. Stull, Jeanette L. Stull, Atwood, Holsten Law Firm, Lincoln, NE, for Plaintiff.

Allison D. Balus, Sara A. McCue, Scott P. Moore, Baird, Holm Law Firm, Omaha, NE, for Defendant.

MEMORANDUM AND ORDER

Laurie Smith Camp, Chief United States District Judge

This matter is before the Court on the Motion for Summary Judgment, ECF No. 49, filed by Defendant Union Pacific Railroad Co. For the reasons stated below, the motion will be granted.

BACKGROUND

The following facts are those stated in the parties' briefs, supported by pinpoint citations to evidence in the record, and admitted, or not properly resisted, by the opposing party as required by NECivR 56.1¹ and Federal Rule of Civil Procedure 56.

Plaintiff Jon Higgins began working as a Locomotive Engineer for Union Pacific in 1976. Supp. Brief ¶ 7, ECF No. 56, Page ID 479. He was based out of North Platte, Nebraska, and typically worked on trains routed from North Platte to Council Bluffs, Iowa. Id. ¶ 10, Page ID 480.

A Locomotive Engineer is a "safety sensitive" position, responsible for regulating the speed of moving trains and ensuring compliance with safety protocols. Id. ¶¶ 8–9. A Locomotive Engineer's mishandling of a train can cause a derailment or collision. Id. ¶ 9. Union Pacific assigned Locomotive Engineers to groups of engineers called "pool turns," who accompanied trains on predetermined routes.² Id. ¶ 11. When a train was preparing to depart, the next engineer in the pool turn scheduled to work received an automated telephone call asking the engineer to accept the shift or decline it by choosing to "lay off." Id. Engineers who chose to lay off were required to explain why, such as citing an illness or other personal reason. Id. ¶ 12.

When an engineer laid off, Union Pacific turned first to the "extra board," a group of engineers who filled short-notice vacancies.³ Id. ¶ 13. If no one on the extra board was available, Union Pacific called another engineer in the pool turn. Id. ¶ 14.

I. HIGGINS's INJURIES AND UNION PACIFIC's ACCOMMODATION

In 1989, the train on which Higgins was working "hit some bad rail going around a curve," throwing Higgins from his chair onto the floor. Opp. Brief ¶ 9, ECF No. 62, Page ID 589. Higgins suffered a crushed disc in his spine, was hospitalized for three weeks, and eventually had back surgery. Id. ¶ 10. The operating neurosurgeon advised Higgins that he would experience intermittent back pain the rest of his life. Supp. Brief ¶ 15, ECF No. 56, Page ID 481.

In March of 1990, Higgins's neurosurgeon released Higgins to "return to full-time work within the limits of his comfort." Opp. Brief ¶ 15, ECF No. 62, Page ID 590 (quoting Gogela Ltr., ECF No. 63–8, Page ID 757). On March 24, 1990, Higgins's union representative, Tom Sullivan, wrote to Union Pacific Director R.D. Arney, stating that Higgins would have to "lay off from time to time as a result of his injury." Id. ¶ 16 (quoting Sullivan Ltr., ECF No. 65–3, Page ID 899). A Union Pacific internal correspondence, dated April 3, 1990, showed managers discussing "what our position should be regarding Engineer Higgins laying off periodically" for his injury. Id. ¶ 14 (quoting Arney Email, ECF No. 65–4, Page ID 900). Sullivan wrote again to Union Pacific management on August 28, 1990, November 18, 1991, and February 10, 1992, following up on Higgins's need for laying off. Id. ¶ 18.

In 1991 or 1992, Higgins's train hit a "dip in the rail," causing his head to "snap back" and resulting in a herniated disk

in his neck. Id. ¶ 11, Page ID 589; id. ¶ 16, Page ID 578. Higgins alleges that after his second injury he entered into a written settlement agreement with Union Pacific. Id. ¶ 12, Page ID 590. Per this agreement, Higgins released his claims against Union Pacific in exchange for settlement payments and permission to lay off as needed due to his back pain. Id. ¶¶ 12 & 13. Higgins states that he has lost any written record of the agreement. Id. ¶ 14. Union Pacific denies "that the parties entered a written settlement agreement or that it contained an alleged provision regarding Higgins' ability to lay off." Reply Brief ¶¶ 12–13, ECF No. 68, Page ID 967.

On March 12, 1992, Higgins's physician, Dr. Brittan, wrote a letter to Union Pacific, stating that Higgins was released to work "with the only restriction being that he should not go out more often than every 24 hours." Opp. Brief ¶ 19, ECF No. 62, Page ID 590 (quoting Brittan Ltr., ECF No. 65–6, Page ID 902). On June 29, 1992, Union Pacific Assistant Medical Director Dr. Richard Peters wrote to Union Pacific Superintendent John Holm, stating that "[t]he medical director's office supports the restriction that on occasion Jon Higgins should not go out on a job assignment more than once every 24 hours." Id. ¶ 19 (quoting Peters Email, ECF No. 65–8, Page ID 904).

On April 7, 1993, Union Pacific Superintendent M.E. Ring wrote to Higgins, stating:

This letter serves as an acknowledgement of the agreement between you and former Superintendent Transportation Services, John Holm, with regard to allowable lay-offs.

I have no problem with you laying off when medically necessary. With each occurrence, however, I will expect your supervisor to be provided with a medical slip from your treating physician outlining in detail the medical necessity for the lay-off. Additionally, these lost work periods will be monitored for frequency and timing, and in no way exempt you from discipline if abused.

ECF No. 52–2, Page ID 323. Higgins alleges that the letter "purport[ed] to place additional conditions on the previous agreement" with its documentation requirement and threat of discipline. Opp. Brief ¶ 23, ECF No. 62, Page ID 591.

II. HIGGINS's ATTENDANCE

A. 1990–2004

On December 28, 1998, Union Pacific sent Higgins a "Notice of Formal Investigation," for his "excessive absenteeism." Opp. Brief ¶ 25, ECF No. 62, Page ID 592 (quoting Notice Ltr., ECF No. 63–11, Page ID 760.). That same day, Higgins's manager, Tim Burkhart, emailed Union Pacific Manager Rick Folker, stating,

I see Mr. J.D. Higgins continues to come up on the worst of the worst list regarding absenteeism. This induividual [sic] has been given to [sic] right to lay off whenever his back bothers him ... as part of a settlement to a law suit involving a personal injury.

I had a conversation with Kathleen Vance who heads up the EEO office and she suggested we might attack this from the medical department. I would assume this meant that Mr. Higgins would be medically re-evaluated....

Rick, I don't really think we can do much about this, at least on the local level. We run the risk of being named in a lawsuit for violating the terms of this individual's settlement.

Id. ¶ 26 (quoting Burkhart Email, ECF No. 65–9, Page ID 905). Union Pacific cancelled the investigation in January of 1999. Id. ¶ 27. On January 25, 1999, Dr. Brittan wrote a letter stating that "nothing has changed medically" as to Higgins's back injury and that his restrictions should be kept the same. Id. ¶¶ 27–28 (quoting Brittan Ltr., ECF No. 65–10, Page ID 906).

On October 26, 1999, Sullivan wrote a letter (Sullivan Letter) to Union Pacific Superintendent Rich Jensen, memorializing their agreement "that [Higgins] will not be disciplined as the result of him being absent from service." Id. ¶ 29, Page ID 593 (quoting Sullivan Ltr., ECF No. 65–11, Page ID 907). Jensen counter-signed the letter, indicating his agreement, and wrote "where layoffs are a result of [Higgins's] medical condition." Id. (quoting Sullivan Ltr., ECF No. 65–11, Page ID 907).

B. 2004–2014

In 2004, Michael Humpherys became the Manager of Training and Attendance for the North Platte Service Unit. Id. ¶ 30. In this position, Humpherys was eligible for a performance bonus, depending in part on meeting certain performance goals. Id. ¶ 31. One such performance goal was reducing the number of lay-offs. Id. On October 8, 2004, Humpherys reviewed Higgins's attendance record and noted that it was "[v]ery borderline," and that Humpherys would "[c]ontinue monitoring." Id. ¶ 34 (quoting ECF No. 63–14, Page ID 766). In late 2005, Humpherys recommended to Higgins's supervisor that Higgins be given notice for his violation of the attendance policy. Id. ¶ 35, Page ID 594. Shortly after this, Humpherys discussed the Sullivan Letter with Superintendent Cameron Scott, who told Humpherys that the "[l]etter stands." Id. ¶ 36 (quoting ECF No. 63–14, Page ID 766.).

On June 17, and September 23, 2008, Humpherys sent letters to Higgins, warning him that continued lay-offs could result in discipline. Id. ¶¶ 39–40. In November of 2010, Higgins provided a note from his physician, Dr. Jason Citta, at Union Pacific's request. The letter suggested that Higgins should be given three to four trips off per month due to his back. Id. ¶ 41, Page ID 595.

Union Pacific alleges that prior to 2011 it "had limited means to examine data regarding the specific attendance records of the 2,000 employees in the North Platte service unit." Supp. Brief ¶ 32, ECF No. 56, Page ID 484. According to Union Pacific, "[a]s a result of improved technology that became available in about 2011, Union Pacific began focusing on holding employees accountable for absenteeism as well as other aspects of the business designed to improve efficiency and profitability."⁴ Id.

On January 1, 2011, Union Pacific's "Railroad Train, Engine, and Yard Attendance Policy" (TEY Policy) went into effect. Id. ¶ 28, Page ID 483. The TEY Policy states "[a]s a Union Pacific employee, you ... are expected to protect your job assignment on a fulltime basis. ‘Full-time’ means being available to work your assignment, whether regular or extra, whenever it is scheduled to work." Id. ¶ 28. The policy...