Hohn v. BNSF Ry. Co.

• Decision Date: 18 April 2013
• Docket Number: No. 12–1041.,12–1041.
• Citation: 707 F.3d 995
• Parties: Frank HOHN, Plaintiff–Appellant v. BNSF RAILWAY COMPANY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

707 F.3d 995

Frank HOHN, Plaintiff–Appellant

v.BNSF RAILWAY COMPANY, Defendant–Appellee.

No. 12–1041.

United States Court of Appeals,

Eighth Circuit.

Submitted: Dec. 11, 2012.

Filed: Feb. 28, 2013.

Rehearing and Rehearing En Banc Denied April 18, 2013.^*

Scott C. LaBarre, argued, Denver, CO, Timothy Ryan Elder, on the brief, Baltimore, MD, for appellant.

Thomas Carl Sattler, argued, Melanie J. Whittamore–Mantzios, on the brief, Lincoln, NE, for appellee.

Before WOLLMAN, BYE, and BENTON, Circuit Judges.

WOLLMAN, Circuit Judge.

BNSF Railway Co. (BNSF) placed locomotive machinist Frank Hohn on medical leave to have his eyes examined and thereafter did not allow him to return to his position. Hohn, who is visually impaired, filed suit, alleging that BNSF retaliated against him for reporting a safety violation and that BNSF discriminated against him based on his disability. The district court ¹ granted summary judgment in favor of BNSF on the whistleblower claim, and the jury found in favor of BNSF on the discrimination claims. On appeal, Hohn challenges the orders granting summary judgment, excluding evidence related to the safety complaint, and denying his motions for a new trial and to set aside the order awarding costs. We affirm.

I. Background

BNSF hired Hohn in December 1997 to work as a locomotive machinist at its maintenance facility located in Alliance, Nebraska. A locomotive machinist performs a myriad of locomotive servicing, maintenance, and troubleshooting functions, including inspecting and replacing brake shoes and traction motors, replacing filters, and ensuring that proper lubricating oil levels are maintained. In December 2003, Hohn fractured the bone above his right wrist when he fell on a slick, uneven surface at the Alliance facility. Hohn was placed on light duty while he recovered and was released to work without restriction in late March or early April 2004.

Around that time, Hohn's supervisors noticed that he was displaying signs of vision impairment or were told that he had troubles seeing. Douglas Miller observed Hohn walking slowly and cautiously, looking around at things, and missing handrails when he tried to grab onto them. Cecelia Deichert observed that Hohn did not see her if she approached him from the side. Deichert and Jennifer Crawford expressed concerns regarding Hohn's vision to Jack Wilson, the assistant superintendent at the maintenance facility. Wilson instructed Deichert, Crawford, and Miller to memorialize their concerns, which they did. Deichert's memo, dated April 20, 2004, stated:

Several machinists have told me that Mr. Frank Hohn can not [sic] see. They do not wish to work with him because they are afraid of getting hurt. They have even noticed that as he walks he is having trouble seeing where he is going. They fear for his well being.

Crawford's April 25, 2004, memo reported that she had observed Hohn “having problems with his vision during the performance of his duties, such as hooking up walkway chains and adjusting brake shoes,” and that Hohn “appeared to struggle with writing up his paperwork[.]” Miller reported that several of Hohn's coworkers had expressed concerns regarding Hohn's vision and safety.

In late April, Hohn reported to a railway safety hotline that he had been forced to perform an unsafe act. Specifically, while inspecting a locomotive on April 17, 2004, Hohn discovered that a cylinder was malfunctioning. He believed that the problem might cause the motor to lose compression and blow out an exhaust valve, so he summoned a supervisor and refused to load test the locomotive. Hohn recommended that the locomotive be moved to the shop for repairs. The supervisor who had responded to Hohn's call regarding the malfunction called the general foreman to evaluate the cylinder. The general foreman disagreed with Hohn's assessment and determined that the cylinder was not malfunctioning. He instructed Hohn to run the locomotive under full load. Hohn did so, notwithstanding his concerns, because he believed that he might lose his job if he refused to test the locomotive as ordered. On April 19 or 20, Hohn reported the incident to a railway safety hotline. On April 21, Calvin Hobbs, the shop superintendent, received notification of Hohn's safety complaint. In response, Hobbs investigated the incident and found that two supervisors and a foreman had assessed the locomotive and disagreed with Hohn's conclusion. Hobbs explained that the load test was completed without incident and that the locomotive had not subsequently experienced any mechanical problems. In an April 27, 2004, e-mail, Hobbs wrote, “We feel this employee is using safety as an answer for a productivity issue that is in the process of being addressed and corrected with him.”

By letter dated April 26, 2004, Hobbs informed Hohn that he would be placed on paid medical leave so that he could have his eyes examined. The letter instructed Hohn to contact his optometrist and Angela Bailey, the BNSF medical and environmental health regional director. Hohn received the letter on April 29, 2004, and remained on paid medical leave until early June 2004.

Optometrist Robert Dietrich evaluated Hohn in May 2004 and diagnosed him as having advanced stage retinitis pigmentosa, a degenerative eye disease that causes tunnel vision and night blindness. Retinitis pigmentosa, for which there is no known cure, often causes blindness. Consistent with the diagnosis, Dr. Dietrich found that Hohn suffered from night blindness and that his field of vision was limited to about 15 degrees in each eye. Dr. Dietrich testified that he measured Hohn's visual field using uniformly bright light, noting that “in dimly lit situations there's going to be a lot of challenge to his vision[.]” Dr. Dietrich believed that Hohn should surrender his driver's license and consider “full [and] permanent disability vs. actively working.”

Dr. Dietrich recommended the following work restrictions: no walking on uneven surfaces; no more than occasional bending or stooping; no operating vehicles or machinery; no climbing ladders or scaffolds; no working on unprotected heights; no more than occasional lifting of greater than 20 pounds; and no job that requires more than 15 degrees visual field. When asked why he restricted Hohn from working in places requiring more than 15 degrees visual field, Dr. Dietrich replied,

Any task that would require greater than that could potentially put him in a position where he might stumble, fall, [or] give incorrect directives to others.... So basically just to confine him to a work station where it involves not much movement, not much change in light—lighting from darker areas to more bright areas, and so forth, that would hinder his judgments.

Two other doctors evaluated Hohn and in most part agreed with Dr. Dietrich's restrictions.

Sharon Clark, BNSF's medical field officer and doctor of osteopathic medicine, reviewed the recommended restrictions. She testified that the area where Hohn worked was a “360–degree environment[,]” where operations occur “above, below, behind, in front of and to the left and right of one's activities.” Given Hohn's reduced visual field, Dr. Clark believed that the restrictions were well advised, and she approved them in July 2004. Hobbs determined that the work restrictions would prevent Hohn from performing the essential functions of the machinist position.

After the restrictions were approved, Bailey began to work with Hohn to determine whether he could return to work as a machinist or in another position with the railroad. Although Bailey supported conducting an on-site evaluation to determine whether Hohn could perform the job of a machinist, Dr. Clark disagreed. Dr. Clark concluded that Hohn could not perform such an evaluation without running afoul of the work restrictions. Hobbs testified that he would have agreed to an on-site evaluation if the medical and legal departments had approved it. Dr. Clark and Bailey remained in contact with Hohn throughout 2005. Hohn, however, was not allowed to return to work after being withheld from service on April 29, 2004.

Hohn filed a charge of discrimination and retaliation with the Nebraska Equal Opportunity Commission (NEOC or commission). Hohn alleged that BNSF withheld him from service for reporting the April 17, 2004, incident to the railway-safety hotline and that BNSF discriminated against him on the basis of his disability. The commission found that the evidence was insufficient to support the charge and thus found no reasonable cause. Hohn received notification of the commission's finding on August 4, 2005. The Equal Employment Opportunity Commission (EEOC) issued its right-to-sue letter on September 21, 2005.

Hohn filed suit in federal district court on December 20, 2005. He alleged that BNSF violated the Americans with Disabilities Act (ADA), see42 U.S.C. § 12101 et seq., and the Nebraska Fair Employment Practices Act (NFEPA), seeNeb.Rev.Stat. § 48–1101 et seq., when it discriminated against him on the basis of his disability and failed to reasonably accommodate his disability. He also claimed that BNSF violated Nebraska law when it retaliated against him for reporting a safety violation. BNSF later moved for summary judgment, arguing, in part, that Hohn's retaliation claim should be dismissed as untimely. The district court granted summary judgment in favor of BNSF on the retaliation claim, albeit on different grounds, holding that Hohn had not shown “any adverse employment actionconnected to his opposition to an unlawful act by [BNSF].” D. Ct. Order of Sept. 26, 2007, at 13–14.

Hohn's disparate treatment and reasonable accommodation claims proceeded to trial. Hohn sought to introduce evidence of the events underlying his safety-hotline report, the report itself, and BNSF's response. The district court sustained BNSF's objection to the evidence, finding it irrelevant.

I find that the hotline issue is not an issue in ...