Hopman v. Union Pac. R.R.
| Decision Date | 26 May 2020 |
| Docket Number | Case No. 4:18-cv-00074-KGB |
| Citation | 462 F.Supp.3d 913 |
| Parties | Perry HOPMAN, Plaintiff v. UNION PACIFIC RAILROAD, Defendant |
| Court | U.S. District Court — Eastern District of Arkansas |
Gregory G. Paul, Morgan & Paul PLLC, Pittsburg, PA, John W. Griffin, Jr., Pro Hac Vice, Marek, Griffin & Knaupp, Victoria, TX, Katherine L. Butler, Pro Hac Vice, Butler & Harris, Paul R. Harris, Pro Hac Vice, Shellist Lazarz Slobin LLP, Houston, TX, for Plaintiff.
Brian A. Wadsworth, Pro Hac Vice, Linda C. Schoonmaker, Seyfarth Shaw LLP, Houston, TX, Torrriano N. Garland, Union Pacific Railroad, Omaha, NE, for Defendant.
Before the Court is a motion for summary judgment filed by defendant Union Pacific Railroad ("Union Pacific") (Dkt. No. 54). Plaintiff Perry Hopman filed a response to this motion (Dkt. No. 59), Union Pacific filed a reply (Dkt. No. 61), and Mr. Hopman filed a sur-reply (Dkt. No. 62). For the following reasons, the Court denies Union Pacific's motion (Dkt. No. 54).
Mr. Hopman brings this action against Union Pacific under Section 504 of the Rehabilitation Act of 1973, as amended, ("Rehabilitation Act"), 29 U.S.C. § 794, et seq. , and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. (Dkt. No. 4, ¶ 3). Mr. Hopman alleges that he was discriminated against and denied a reasonable accommodation in violation of both the Rehabilitation Act and the ADA (Id. , ¶¶ 18-26).
Mr. Hopman joined the U.S. Army in 1993 (Dkt. No. 55, ¶ 1). Mr. Hopman originally served as an active duty service member and spent approximately one and one-half years on duty before joining the National Guard in Arkansas (Id. ). In 2006, Mr. Hopman deployed to Iraq as a member of the National Guard (Id. , ¶ 2). While deployed, Mr. Hopman discussed employment at Union Pacific with one of his fellow guardsmen and was told that it was a great place to work (Id. ). Mr. Hopman decided to pursue a railroad career at Union Pacific when he returned from his deployment (Id. ). At some point after Mr. Hopman returned to the United States, he was diagnosed with post-traumatic stress disorder
("PTSD") for the first time (Id. , ¶ 3).
In May 2008—while still a member of the National Guard but after returning from his deployment—Mr. Hopman accepted employment as a conductor at Union Pacific's North Little Rock service unit (Id. , ¶ 4). Conductors are responsible for train operations and movement, which includes operating locomotive equipment (Id. , ¶ 5). A conductor's duties include, but are not limited to: pushing, pulling, lifting, and carrying up to 25 pounds frequently, 50 pounds occasionally, and assisting in the infrequent movement of weights of seven up to 83 pounds; riding railcars and climbing onto equipment; applying bilateral use of upper extremities when needed such as maintaining a grip with both hands; maintaining balance and coordination on stairs, ladders, uneven terrain, moving equipment, rails, and ballast; maintaining three-point contact when holding on a ladder or train; working and interacting with others; and riding at the rear of a car on a ladder (Id. ). In addition to these duties, the conductor also spends time outside of the train to walk the train and deal with other problems (Id. , ¶ 6). This means the conductor must perform his or her duties in extreme weather and face any dangers the weather may pose (Id. ). As a conductor, Mr. Hopman was required to work a variable schedule based on business needs, which included overnight travel (Id. , ¶ 7). This involved Mr. Hopman, as a conductor, pairing up with an engineer to operate Union Pacific's trains (Id. ). Due to scheduling limitations, a conductor and engineer team is not constant and usually changes for each run (Id. ).
In April 2010, Mr. Hopman took a leave of absence from Union Pacific to perform military service (Id. , ¶ 8). This leave of absence ultimately lasted five years (Id. ). Mr. Hopman deployed to Kosovo during this time and also spent time at his local armory in Benton, Arkansas (Id. ). Mr. Hopman asserts that he suffered a traumatic brain injury
during his service in Kosovo and spent time after his deployment trying to recover from his injuries, during which his PTSD became much worse (Dkt. No. 59-2, ¶ 8). Mr. Hopman received treatment at Walter Reed in Washington, D.C. and participated in an Army PTSD program in San Diego, California (Dkt. No. 55, ¶ 8). Mr. Hopman also asserts that he received treatment at the Intrepid Center for his traumatic brain injury and PTSD and the Oasis Center for his PTSD (Dkt. No. 59-2, ¶ 8). Union Pacific avers that it paid Mr. Hopman approximately $300.00 to $400.00 per month during this leave, which represented the difference between his pay at Union Pacific and the pay he received while serving on military duty, but Mr. Hopman disputes this claim (Dkt. Nos. 55, ¶ 8; 59-2, ¶ 8). Mr. Hopman medically retired from the Army National Guard in 2015 (Dkt. No. 55, ¶ 8).
Mr. Hopman claims that his medical team recommended that he get a service dog to help mitigate the flashbacks, anxiety, and migraine headaches he suffered (Dkt. No. 59-5, ¶ 5). In 2014, prior to returning to work at Union Pacific, Mr. Hopman got his dog Atlas, a two-month-old German Rottweiler (Dkt. No. 55, ¶ 9). Mr. Hopman returned from his military leave of absence on or about May 4, 2015 (Id. , ¶ 10). Mr. Hopman resumed working as a conductor at the North Little Rock Service Unit after his return (Id. ). Union Pacific required Mr. Hopman to undergo a fitness-for-duty exam when he returned to work, as it requires all of its employees who work in a safety sensitive position to undergo a fitness-for-duty exam after returning from an absence of one year or longer (Id. , ¶ 11). While Mr. Hopman informed Union Pacific of his PTSD diagnosis at that time, he did not request a reasonable accommodation and returned to work without restrictions (Id. ).
On or about April 1, 2016, after working at Union Pacific for nearly a year after returning from his military leave of absence and approximately eight years after his PTSD diagnosis, Mr. Hopman requested that Union Pacific permit him to bring Atlas to work as a reasonable accommodation (Id. , ¶ 12). This request is the first time that Mr. Hopman ever sought a reasonable accommodation from Union Pacific (Id. ). Mr. Hopman readily admits that from May 4, 2015, to April 1, 2016, prior to requesting this accommodation, he was able to perform safely all functions of his job, though he asserts that he suffered flashbacks, anxiety, and migraine headaches during that time (Dkt. Nos. 55, ¶ 12; 59-2, ¶ 12). Mr. Hopman made this 2016 request to his supervisor at the time, Josh Davis, and the only disability claimed at the time was his PTSD (Dkt. No. 55, ¶ 13). Mr. Hopman requested to bring Atlas to work because he believed Atlas would allow him to be more comfortable at work, make working easier, and help him both mentally and physically (Dkt. Nos. 54-6, at 2; 55, ¶ 13). After reviewing Mr. Hopman's request, Union Pacific denied it because it determined that the accommodation would result in a direct threat to health and safety (Dkt. Nos. 54-7, at 2; 55, ¶ 14). Specifically, Union Pacific noted that: (1) it is unclear how a dog would react to the dangerous conditions of the railyard, such as moving cars and locomotives; (2) there was no infrastructure to support a dog in a locomotive or on the road; and (3) the dog would remain unmonitored and could pose a risk to other employees (Id. ). Mr. Hopman asserts that Union Pacific refused to communicate with him about any concerns regarding this accommodation, that Union Pacific was not in a position to make a decision about whether Atlas would be or result in a direct threat to health and safety, and that the record shows that Union Pacific only communicated its concerns after it had already denied the accommodation (Dkt. No. 59-2, ¶ 14).
After the denial of this request, Mr. Hopman filed a Charge with the Equal Employment Opportunity Commission ("EEOC") on April 21, 2016 (Dkt. No. 55, ¶ 15). In his Charge, Mr. Hopman alleged that Union Pacific denied him a reasonable accommodation because of his disability (Id. ). In the accompanying Intake Questionnaire, Mr. Hopman indicated the only discrimination he faced was Union Pacific's denial of a "use of service dog at work" (Id. ). Mr. Hopman also indicated that the assistance he sought was "only to allow a service dog to accompany [him] at work" (Id. ). At the time Mr. Hopman filed this Charge, Atlas had not completed his training (Id. ). Because Mr. Hopman proactively requested an accommodation he would want in the future, the EEOC recommended that Mr. Hopman withdraw his Charge, which he did (Id. ).
After Atlas completed his 18-month training program in or about April 2017, Mr. Hopman requested again that Union Pacific permit him to bring Atlas to work with him via an email to Pauline Weatherford, one of Union Pacific's senior vocational case managers (Id. , ¶ 16). Union Pacific asserts that Ms. Weatherford's role in accommodation requests is to engage in the interactive process with the employee, clarify what the employee is seeking, and assist the employee in acquiring the desired accommodation request, if possible (Id. ). In his email, Mr. Hopman wrote that he now had his service dog full-time and would like to ask for an accommodation enabling him to bring Atlas to work (Id. , ¶ 17).
Mr. Hopman completed a reasonable accommodation request intake form which addressed the concerns Union Pacific expressed in denying his 2016 request (Id. ). Mr. Hopman claimed that: (1) Atlas was trained to perform necessary tasks in varied environments and trained to focus on his work; (2) Atlas was trained not to relieve himself for 14 straight hours; (3) Atlas was an extension of Mr. Hopman and should be viewed as such; (4) Mr. Hopman suffered physical and mental...
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