Marschand v. Norfolk and Western Ry. Co.

Decision Date10 February 1995
Docket Number1:94-CV-120.,No. 1:93-CV-134,1:93-CV-134
PartiesDavid L. MARSCHAND, Plaintiff, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant. David L. MARSCHAND, Plaintiff, v. NORFOLK AND WESTERN RAILWAY COMPANY, and Norfolk Southern Company, Defendant.
CourtU.S. District Court — Northern District of Indiana

John C. Theisen & Thomas N. O'Malley, Gallucci, Hopkins, & Theisen, P.C., Fort Wayne, IN, for plaintiffs.

John C. Duffy, Geoffrey L. Blazi & Russel H. Hart, Stuart & Branigan, Lafayette, IN, for defendants Norfolk and Western Railway and Norfolk Southern Corp.


COSBEY, United States Magistrate Judge.


The Plaintiff, David L. Marschand ("Marschand"), has two lawsuits pending before this Court. On May 19, 1993, Marschand filed a claim against the Defendant, Norfolk and Western ("NW") under the Federal Employers' Liability Act, ("FELA"), 45 U.S.C. § 51 et seq. On April 28, 1994, Marschand filed a claim against NW and Norfolk Southern Corporation ("NS" and hereinafter collectively referred to as "the Railroad"), alleging a violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. At a status conference held on June 3, 1994, the Court consolidated the two cases for all pretrial proceedings.

This matter is now before the Court1 on the Defendants' Motions for Summary Judgment filed September 29, 1994. NW is seeking partial summary judgment of Marschand's FELA claim, and the Railroad seeks summary judgment of Marschand's ADA claim. Marschand filed a response brief on December 30, 1994, and the Defendants filed their reply brief on January 13, 1995. For the reasons stated below, the Defendants' Motions for Summary Judgment are GRANTED.


Marschand was hired by the Railroad as a train brakeman in 1989. (Marschand Dep. I, p. 103). In March of 1990 Marschand underwent Locomotive Engineer Training, and served as a student engineer for one year, at which time he qualified as a full engineer. (Id. at 103-05). On March 12, 1991, Marschand was the engineer of a NW train involved in a grade crossing accident. (Plaintiff's exh. 3, accident report). The accident occurred when a pick-up truck carrying a young couple and their 10 year old daughter ("the Lacy family") entered the crossing at the same time as the NW train. Id. The train broadsided the pick-up truck, instantly killing the Lacy family. Id. Marschand suffered no physical injuries as a result of the accident. He did feel the impact of the crash, and at the moment of impact he was aware that he could be injured if struck with flying debris. He and the other members of the train crew ducked to avoid any possible debris.

After the accident Marschand engineered the train for the remainder of its March 12, 1991, trip. (Marschand Dep. I, p. 186). For the next year Marschand continued to work for NW as a brakemen, conductor and engineer. However, on March 12, 1992, (the one year anniversary of the accident), he claims to have suffered a complete and total mental breakdown. (Id. 186-190). Immediately following his breakdown, Marschand was unable to return to work.2 One week later Marschand began treating with Dr. Steven Ross ("Dr. Ross"), a psychologist. Marschand's psychotherapy with Dr. Ross continues to date.

Dr. Ross has diagnosed Marschand as suffering from post-traumatic stress disorder ("PTSD") caused by the trauma of the accident. (Plaintiff's exhibit 12, Ross Aff. ¶¶ 3, 8). Much of Marschand's emotional distress is caused by feelings of guilt, "survivor's syndrome," and grief and bereavement associated with the death of the Lacy family. (Plaintiff's exhibit 12, Ross Aff. ¶ 8). Marschand continues to suffer from PTSD, which generally manifests itself in tension, anxiety and depression. Dr. Ross has further opined that his condition is magnified by the stress of his current lawsuits. (Ross Dep., p. 39). While Dr. Ross has reservations about whether Marschand will ever make a full recovery, he does not believe that Marschand will do so before this litigation is over. (Ross Dep., p. 39).

Nevertheless, by October of 1991, Marschand had made some improvement, because on October 22, 1991, Marschand, through Dr. Ross, requested a return to work. On that date, Dr. Ross sent a letter to M.D. Manion ("Manion"), NW Superintendent for the Lake Division. (Defendants' exh. 3). That letter states in relevant part:

I do have some reservations about Mr. Marschand's return to work. I believe that if Norfolk Southern would allow him to return to work, that he should do so on a limited basis. I do not believe that he should be permitted to operate a train nor should he be involved in the everyday activities in the yard. David has reported to me that he would be able to engage in either custodial or clerical work.


Thereafter, on November 2, and again on November 18, 1992, Marschand personally wrote to Manion expressing his desire to return to work in a limited capacity. Marschand indicated he needed a "low stress" position, preferably working as a clerk or custodian on a limited basis. (Defendants' exh. 4 & 5).

Marschand's employment request was brought to the attention of Eileen Myers ("Myers"), the Chief Clerk for the Lake Division. After conferring with the head clerk in the transportation department, Myers determined that a clerk position was available. (Myers Dep., p. 47-48). Myers notified Manion, who then forwarded Marschand's correspondence to NW's Medical Director, Dr. J.P. Salb, for a medical review. Manion specifically requested that Dr. Salb evaluate Marschand's fitness for engine service,3 as well as working as a yard clerk. (Defendants' exh. 6).

On February 8, 1993, Dr. Salb assessed that Marschand was not qualified for engine service, but he could perform the duties of a yard clerk. (Defendants' exh. 7). On March 8, 1993, Dr. Salb reviewed Dr. Ross' medical records, and reconfirmed his earlier opinion that Marschand could not work in engine service, but could work as a yard clerk. (Defendants' exh. 8).

Marschand's case was also reviewed by Dr. Frank N. Bilisoly, NW's Medical Review Officer. Dr. Bilisoly spoke with Dr. Ross about the duties of an "extra board clerk" to determine whether, in Dr. Ross' opinion, Marschand could perform this job. (Defendants' exh. 9). Dr. Ross agreed with Dr. Bilisoly that Marschand was capable of returning to work as an extra board clerk. (Defendants' exh. 9). Accordingly, on March 9, 1993, Dr. Bilisoly gave Marschand medical clearance for the clerk position and he instructed Manion to schedule Marschand for a physical, drug screen and audiogram. (Defendants' exh. 9).

An extra board clerk is considered clerical. The "clerical" category encompasses a broad range of positions (including janitor), all of which frequently require the use of a personal computer. (Myers Dep., pp. 11, 75-76). Accordingly, for the past 10 years NW has required that an individual be able to establish a minimum typing proficiency of 35 words per minute. (Myers Dep., pp. 13, 61, 72). Thus, before Marschand could be hired as an extra board clerk he was required to pass a typing test.

Marschand first took his typing test on March 23, 1993. (Plaintiff's exh. 8). He failed the test, receiving a score of only 12 words per minute. (Defendants' exh. 12). On March 29, 1993, Marschand wrote to Myers about his test scores, and indicated that should he be unable to qualify for a clerk position, he would like to be considered for any other available position. (Plaintiff's exh. 8). Marschand again wrote to Myers on April 20, 1993, reiterating his desire to work for the Railroad in any position. (Plaintiff's exh. 9) He also stated that he was practicing his typing with the hope of meeting the requirements of the available clerk position. Id. Of course, all positions available in Myers' department were subject to the minimum typing proficiency requirement. (Myers' Dep., pp. 60-61). On April 23, 1993, Myers wrote back to Marschand about his test scores, and she invited him to re-take the test when he felt he was able to obtain the required speed. (Defendants' exh. 12). Marschand took the typing test at least two more times, but, although his scores had improved, he still did not pass.

At some point in time Myers determined that Marschand might never pass the typing test, and therefore, would be unable work in her department. However, it was also clear to her from Marschand's correspondence that he wanted to return to work for the Railroad in any capacity. (Myers Dep., pp. 46-47). Therefore, a few months after his initial request for employment, Myers forwarded Marschand's correspondence to Mr. Richard S. Hayth ("Hayth"), the Railroad's System Manager for Disability Support Services. (Myers Dep., pp. 46-47).

On August 10, 1993, Marschand filed a charge of discrimination with the EEOC, alleging that the Railroad had refused to offer him an available positions on account of his PTSD, in violation of the ADA. (Defendant's exhibit 13, EEOC charge).

On September 2, 1993, Hayth wrote to Marschand's counsel with information on the opportunities available to Marschand under the Railroad's new "Accelerated Rehabilitation Program." (Defendant's ex. 14). Hayth explained that the purpose of the program was to help secure alternative employment for individuals who, as a result of injury, could no longer perform their past work for the Railroad. Id. Hayth further explained that under the program he would first look for an alternative position in Marschand's department, and noted the available clerk position that Marschand had already attempted to qualify for. With regard to Marschand's inability to pass the typing test, Hayth offered to pay Marschand's tuition for a typing class. Id. Hayth further stated that if no position could be found within Marschand's department, the next step would be to look to other departments within the Railroad. However, Hayth qualified this...

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