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

• Decision Date: 24 July 2019
• Docket Number: No. 18-1902,18-1902
• Citation: 931 F.3d 664
• Parties: Jon D. HIGGINS, Plaintiff - Appellant v. UNION PACIFIC RAILROAD CO., Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

931 F.3d 664

Jon D. HIGGINS, Plaintiff - Appellant

v.UNION PACIFIC RAILROAD CO., Defendant - Appellee

No. 18-1902

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2019

Filed: July 24, 2019

Charles Austin Delbridge, Anna P. Prakash, David E. Schlesinger, NICHOLS & KASTER, Minneapolis, MN, Corey Lane Stull, ATWOOD & HOLSTEIN, Lincoln, NE, for Plaintiff - Appellant.

Allison Balus, David P. Kennison, Sara A. McCue, Scott P. Moore, BAIRD & HOLM, Omaha, NE, for Defendant - Appellee.

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

Jon Higgins has chronic back pain. He asked his employer, Union Pacific Railroad ("Union Pacific"), to accommodate his back pain by allowing him to take time off "as necessary" and receive "24 hours of rest per shift (between shifts)." Union Pacific denied his request. Higgins then sued Union Pacific for, among other things, disparate treatment and failure to accommodate under the Americans with Disabilities Act ("ADA"). The district court¹ granted summary judgment in favor of Union Pacific. We affirm.

I. Background

Higgins began working for Union Pacific in 1976 as a Locomotive Engineer. He was based out of North Platte, Nebraska, and typically worked on trains routed from North Platte to Council Bluffs, Iowa. Higgins’s responsibilities included regulating the speed of the trains and ensuring compliance with safety protocols. Between 1989 and 1992, Higgins suffered two spine-related injuries while performing his job responsibilities. In 1992, Higgins entered into a settlement agreement with Union Pacific in which he released his personal injury claims against Union Pacific in exchange for payment and "the right to lay off whenever his back bother[ed] him."²

On March 12, 1992, Dr. Brittan, Higgins’s physician at the time, wrote a letter to Union Pacific stating that Higgins was cleared to work "with the only restriction being that he should not go out more often than every 24 hours." On June 29, 1992, Union Pacific’s Assistant Medical Director, Dr. Richard Peters, wrote to Union Pacific’s Superintendent, John Holm 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." On April 7, 1993, Union Pacific’s new Superintendent, M.E. Ring, wrote a letter to Higgins stating, "[t]his letter serves as an acknowledgment of the agreement between you and former Superintendent[,] ... John Holm, with regard to allowable lay-offs." Ring further wrote that while "I have no problem with you laying off when medically necessary[,] ... lost work periods will be monitored for frequency and timing, and in no way exempt you from discipline if abused."

Several years later, on January 25, 1999, Dr. Brittan wrote another letter to Union Pacific confirming that Higgins’s work restrictions were still necessary. The letter stated, "Mr. Higgins has a long standing back injury and his restrictions ... have been permanent up till now. As far as I know, nothing has changed medically that would require those restrictions to be changed ...." On October 26, 1999, Union Pacific agreed that Higgins would continue "not [to] be disciplined as the result of him being absent from service."

In 2004, Michael Humpherys started as Union Pacific’s Manager of Training and Attendance for the North Platte Service Unit. Her job focused on improving job attendance. According to Union Pacific’s Locomotive Engineer Job Description, "[a]ttendance in compliance with the applicable attendance policy is an essential function of [the] position." Union Pacific’s Attendance Policy states that Union Pacific employees are expected to work "on a full-time basis," which means "being available to work your assignment ... whenever it is scheduled to work." While the policy allows employees to lay off for "personal or family issues," documentation "is expected" and employees can be held in violation of the policy "regardless of the explanation offered if [they] are unable to work full time and protect all employment obligations."

One way for Union Pacific to improve attendance was to reduce "lay-offs." Union Pacific’s Locomotive Engineers are assigned to "pool turns," which are groups of engineers that work on predetermined train routes. Each time a train is ready for departure, the Locomotive Engineer scheduled to work receives an automated call asking whether the engineer wants to accept the shift or "lay off." If the engineer decides to lay off, he must provide an explanation. In the event of a lay-off, Union Pacific turns to the "extra board," a group of engineers who fill short-notice vacancies. If none of those engineers can take the shift, the next engineer in the pool turn is called.

To reduce lay-offs, Humpherys collected attendance data to identify poor performers. Higgins, who had a high number of lay-offs due to his chronic back pain, quickly drew Humpherys’s attention. In October 2004, Humpherys called Higgins’s attendance "[v]ery borderline." In October 2005, Humpherys found that Higgins ranked last in attendance among his pool turn. In 2007, Humpherys noted that Higgins had been listed on five different "snapshots" (monthly attendance reports) as an employee with poor attendance. In 2008, Humpherys sent a letter to Higgins stating that Higgins’s "recent level of job protection [was] unsatisfactory and must be improved," and that "further failure ... w[ould] subject [him] to disciplinary action." Several other Union Pacific Locomotive Engineers received a similar letter. In 2010, 2011, and 2012, Humpherys continued to monitor Higgins’s poor attendance and noted that Higgins appeared on several snapshots each year. In both 2012 and 2013, Higgins laid off 24% of the shifts that he was called to work.

Around 2013 or 2014, Union Pacific began experiencing a manpower shortage in North Platte due to increasing business. Consequently, John Alberry, Union Pacific’s Director of Road Operations, directed Humpherys to "start holding people accountable" for attendance. In 2013, Humpherys began sending out warning letters to North Platte employees with poor attendance. On April 11, 2013, Humpherys sent Higgins a letter that said Higgins’s "attendance may be trending in the wrong direction or may already be placing [him] in violation of Union Pacific’s Attendance Policy." Higgins continued to lay off shifts due to his chronic back pain. On April 2, 2014, Humpherys sent Higgins an Attendance Alert and Advisory letter that said Higgins’s "attendance [was] not satisfactory." Five other North Platte Service Unit employees received the same letter. Higgins’s attendance did not improve—between May 11, 2014, and August 9, 2014, Higgins missed 26% of his scheduled shifts.

On August 14, 2014, Union Pacific sent Higgins a Notice of Investigation letter "in connection with [his] alleged violation of the Union Pacific Railroad ... Attendance Policy, as a result of [his] alleged failure to protect [his] employment on a full time basis by excessively absenting [him]self." Higgins was directed to attend a hearing at which he could present documentation supporting his need for the lay-offs. Prior to the hearing date, Higgins filed an occupational injury report stating that he had experienced an anxiety attack caused by "stress [and] depression due to harassment" regarding his lay-offs. Union Pacific then requested that Higgins undergo a fitness-for-duty ("FFD") evaluation.

On September 24, 2014, as a part of the FFD evaluation, Union Pacific asked Higgins’s physician at the time, Dr. Citta, whether Higgins had any physical limitations. On October 2, 2014, Dr. Citta responded that he "consider[ed] Mr. Higgins[’s] back condition the same [then] as it was at the time that he returned to work in 1990." In addition, he recommended that Union Pacific "[c]ontinue providing at least 24 hours off between shifts or trips" and "[c]ontinue allowing him to layoff as needed secondary to his back pain as per the agreement from 1999." After seeing Dr. Citta’s recommendations, Higgins told Dr. Citta that he "inadvertently" left out the word "occasionally" in his discussion of the 24 hours off between shifts or trips. Higgins, however, never requested that Dr. Citta correct the error or follow-up with Union Pacific.

On November 20, 2014, Union Pacific’s Medical Department determined, based in part on Dr. Citta’s letter, that Higgins needed several permanent job restrictions, including "24 hours of rest per shift (between shifts)." In a phone call with Rhonda Ross, a Union Pacific FFD Nurse, Higgins confirmed that the restrictions were appropriate but requested that they be updated to also "continu[e] allowing him to lay off as needed secondary to his back pain as per agreement from 1999." Higgins’s requested change was never made. On December 3, 2014, Union Pacific determined that Higgins’s restrictions "interfere[d] with [his] essential job functions" and could not be reasonably accommodated. Specifically, Union Pacific found that 24 hours of rest between every shift, rather than occasional shifts, was not feasible because nearly 90% of Higgins’s calls required him to work on less than 24 hours’ rest. On December 4, 2014, Union Pacific notified Higgins that his "supervising department ha[d] been unable to identify a reasonable accommodation that [would] permit [him] to safely return to work in [his] assigned position." Higgins has not been permitted to return to work since the end of 2014.

On December 9, 2016, Higgins filed a lawsuit alleging violations of the ADA, the Genetic Information Nondiscrimination Act, and the Family and Medical Leave Act. The district court granted Union Pacific’s motion for summary judgment on all of Higgins’s claims. Higgins appeals only the grant of summary judgment on his ADA claims for disparate treatment and failure to accommodate.

II. Standard of Review

This Court reviews a district court’s grant of summary judgment...