Mlsna v. Union Pac. R.R. Co.
| Decision Date | 03 August 2021 |
| Docket Number | 18-cv-37-wmc |
| Parties | MARK MLSNA, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
On July 1, 2021, a jury found in favor of plaintiff Mark Mlsna as to his disparate treatment and failure to accommodate claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1210, et seq. Still pending before the court is plaintiff's Rule 52 as to his disparate impact claim, which was not presented to the jury, and two remaining issues with respect to the damages award. The first concerns defendant's motion to reduce the jury's award of almost $4 million in compensatory damages and over $40 million in punitive damages to the statutory total cap award of $300, 000 mandated by 42 U.S.C § 1981(a)(b)(3)(D); the second is plaintiff's request for an award of both back pay and front pay. This opinion will resolve all of these matters, bringing the case to a close.
Having made its way to the Seventh Circuit and back already, this case has a long history. Briefly, plaintiff Mark Mlsna has a hearing impairment and has worn hearing aids for over twenty years. Despite this disability, Mlsna was able to work as a thru-freight train conductor for Union Pacific for nearly a decade. After implementing a new hearing acuity and conservation policy, however, Union Pacific declined to recertify Mlsna as a train conductor and held him out of service on January 8, 2015. This court originally granted summary judgment in defendant's favor, but after remand and a three-day trial, a jury found on July 1, 2021, that Union Pacific discriminated against Mlsna because of his disability and failed to reasonably accommodate his disability, both in violation of his rights under the ADA. The jury further found that: (1) allowing Mlsna to continue working would not have posed a direct threat to himself or others in the workplace; and (2) accommodating Mlsna's disability would not have imposed an undue hardship on Union Pacific. Finally, the jury awarded Mlsna $3, 670, 000 in compensatory damages and $40, 300, 000 in punitive damages.
In 2006, the Federal Railroad Administration (“FRA”) promulgated certain new regulations requiring railroads to protect the hearing of vulnerable employees by establishing hearing conservation policies. Among other things, this regulation requires railroad employees who are exposed to sound levels equivalent to an eight-hour, time-weighted average (“TWA”) of 90 decibels or greater to wear hearing protection. 49 C.F.R. § 227.115(c). To measure these decibel levels, railroads are required to conduct dosimetry testing. 49 C.F.R. § 227.103.
If an employee is required to wear hearing protection, then an employer must offer employees “a variety of suitable hearing protectors, ” including a selection of devices with a range of attenuation levels. 49 C.F.R. § 227.115(a). Moreover, the railroad must evaluate the effectiveness of these devices using one of three methods to ensure that they attenuate employee noise exposure to an eight-hour TWA of 90 decibels or lower. 49 C.F.R. § § 227.117(a), (b); App. B to Part 277. The first method for estimating the adequacy of hearing protector attenuation is to derate attenuation using the devices published Noise Reduction Rating (“NRR”). 49 C.F.R. Pt. 227 App. B. The second method is to use specific laboratory-based procedures for measuring, analyzing, and reporting the noise-reducing capabilities of hearing protection devices set forth by the American National Standards Institute. Id. The third method is to use actual measurements of the level of noise exposure inside the hearing protector when employees wear the hearing protector in their actual work environment. Id.
The FRA promulgated additional regulations in 2012 requiring railroads to ensure that individuals met certain minimum hearing acuity benchmarks before certifying them as train conductors. Specifically, to be certified as a train conductor, an individual must “have a hearing test or audiogram that shows . . . [t]he person does not have an average hearing loss in the better ear greater than 40 decibels with or without use of a hearing aid, at 500 Hz, 1, 000 Hz, and 2, 000 Hz.” 49 C.F.R. § 242.117(i)(3)(i). A person who fails this hearing test may still be certified as a conductor, however, with or without “special restrictions, ” “[i]f, after consultation with a railroad officer, the medical examiner concludes that . . . the person has the ability to safely perform as a conductor.” 49 C.F.R. §§ 242.117(j); 242.117(c)(2). Although the railroad is initially responsible for certifying train conductors, an individual may appeal a certification denial to the FRA Operating Crew Review Board. 49 C.F.R. § 242.501.
Importantly, both the FRA hearing conservation regulation and the conductor certification regulation set only “minimum” standards, and railroads are not prohibited from adopting more stringent requirements. See 49 C.F.R. § 227.1 ( ); § 242.1(b) ( ).
In 2013, Union Pacific did just that by creating and implementing an employee hearing conversation policy with more stringent requirements than those set forth in the FRA regulations. Under its policy, all employees, including conductors, are required to wear approved hearing protection in identified areas demarcated by signs and whenever they are within 150 feet of a locomotive, unless they are inside the locomotive's cab with the doors and windows closed.
Union Pacific also provides all employees working in these areas with hearing protection, including conductors. Consistent with FRA regulations, employees are offered a variety of approved devices to choose from, although Union Pacific approved only one Amplified Hearing Protection Device (“AHPD”) -- the “Pro Ears - Gold.” An AHPD is an electronic, ear-muff-style hearing protector designed to both amplify ambient sound and block harmful noise. Employees are not permitted to wear hearing aids under hearing protection, nor are other hearing aids permitted in areas where hearing protection is required.
In addition, Union Pacific prohibits the use of -- and will not approve -- any hearing protection device that does not include an NRR from the manufacturer. Union Pacific also prohibits custom earplugs as hearing protection. As for the hearing acuity requirements, Union Pacific requires all conductors to have a minimum hearing threshold in the better ear of 40 decibels or less (at 500, 1000, and 2000 hertz), either with unaided hearing or when using a Union Pacific-approved AHPD.
On December 18, 2014, Mlsna sat for his first, required hearing exam.[1] Mlsna's hearing was tested under four conditions: (1) without hearing aids and without hearing protection; (2) with hearing aids and without hearing protection; (3) without hearing aids but wearing an AHPD with the volume turned off; (4) without hearing aids but wearing an AHPD with the volume turned all the way up. Because Mlsna only met the 40 decibel hearing acuity threshold under the second scenario, Union Pacific then initiated a fitness-for-duty determination. At Union Pacific's direction, Mlsna visited an audiologist on January 8, 2015, who tested Mlsna under the same four conditions as before. Again, Mlsna only met the hearing acuity threshold with his hearing aids and without hearing protection. The audiologist additionally tested Mlsna while he was wearing both the Pro Ears-Gold and his hearing aids; Mlsna also met the acuity threshold using this configuration.
Based on these test results, Union Pacific concluded that Mlsna could not be certified as a conductor and could not continue working for Union Pacific in that capacity. After he was removed from service on January 8, 2015, Mlsna contacted Union Pacific's director of disability management to explore possible accommodations for his disability. In particular, Mlsna asked whether a custom-made, hearing-protection device manufactured by EAR Primo would work. Union Pacific rejected the EAR Primo because it lacked an NRR from the manufacturer. Ultimately, no accommodation acceptable to Union Pacific was identified.
Mlsna later appealed Union Pacific's decertification decision to the FRA Operating Crew Review Board, which decided on June 4, 2019, that Union Pacific's denial was improper, explaining that the FRA hearing acuity standards may be met with use of a hearing aid. After this decision, Mlsna and Union Pacific entered into a confidential settlement agreement. Ultimately, Union Pacific reinstated Mlsna's conductor certification under the FRA standards, but still refused to return him to his previous job on the grounds that Mlsna did not meet Union Pacific's more stringent hearing acuity and hearing conservation policies.
To support his disparate impact claim, plaintiff produced a spreadsheet from 2010 showing the audiology data of Union Pacific's employees. Although the spreadsheet was discussed at the final hearing with respect to plaintiff's disparate impact claim and damages, and the proper foundation appears to have been laid for its...
To continue reading
Request your trial