Nall v. BNSF Ry. Co.

• Citation: 917 F.3d 335
• Decision Date: 15 February 2019
• Docket Number: No. 17-20113,17-20113
• Parties: Flora NALL, as Personal Representative of the Estate of Michael Nall, substituted in place and stead of Michael Nall, deceased, Plaintiff–Appellant, v. BNSF RAILWAY COMPANY, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

917 F.3d 335

Flora NALL, as Personal Representative of the Estate of Michael Nall, substituted in place and stead of Michael Nall, deceased, Plaintiff–Appellant,

v.BNSF RAILWAY COMPANY, Defendant–Appellee.

No. 17-20113

United States Court of Appeals, Fifth Circuit.

FILED February 15, 2019

Nitin Sud, Sud Law, P.C., Bellaire, TX, for Plaintiff-Appellant.

Bryan Patrick Neal, Micah Randall Prude, Thompson & Knight, L.L.P., Dallas, TX, for Defendant-Appellee.

Marianne Marsh Auld, Caitlyn Hubbard, Kelly, Hart & Hallman, L.L.P., Fort Worth, TX, for Amicus Curiae Association of American Railroads.

Rae T. Vann, General Counsel, Norris, Tysse, Lampley & Lakis, L.L.P., Washington, DC, for Amici Curiae Center for Workplace Compliance, National Federation of Independent Business Small Business Legal Center.

Before ELROD, COSTA, and HO, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

The panel opinion, special concurrence, and dissent previously issued in this case are withdrawn, and the following opinions are substituted in their place.

Michael Nall sued his employer, BNSF Railway Company, for disability discrimination and retaliation after he was diagnosed with Parkinson’s disease

and later placed on medical leave by BNSF. Because there is a fact issue as to whether BNSF discriminated against Nall, we REVERSE the grant of summary judgment to BNSF on Nall’s disability discrimination claim and REMAND for further proceedings. Because Nall fails to identify a material fact issue regarding his retaliation claim, we AFFIRM the district court’s judgment on this claim.

I.

Nall started working as a trainman with BNSF in 1973. In 2010, he was diagnosed with Parkinson’s disease

. At this time, BNSF provided Nall and his doctor with a medical status form listing the job duties of a trainman, including items such as operating track switches, applying and releasing hand brakes, monitoring track conditions, inspecting train cars and equipment, relaying various types of signals, and controlling train speed. After Nall’s neurologist cleared him to continue working, BNSF’s doctor revised the form to instead contain a list of switchman duties different from the trainman duties on the previous form. The new list added items such as "mak[ing] quick hand and leg movements," "rid[ing] on moving cars while holding onto a ladder," and "maintaining good balance and steadiness of stance/gait."

Nall continued to work with BNSF for the next year and a half without incident. Then, in 2012, BNSF gave Nall a letter stating that a co-worker had voiced concern about Nall’s ability to safely perform his job duties. Nall was placed on medical leave and required to obtain a release from the BNSF medical department to return to work.

To begin the evaluation process, BNSF requested a copy of the results of a physical examination from Nall’s neurologist that would show the doctor’s awareness of BNSF’s concerns and the results of any diagnostic tests performed. Nall complied. He submitted to BNSF a report from his neurologist recommending further evaluations by a neuropsychologist and a physical therapist. BNSF requested that Nall complete these evaluations. Nall again complied. The neuropsychologist reported that he did not see any evidence of brain damage after evaluating Nall and placed Nall’s skill level at the low end of the average range. The occupational therapist concluded that Nall was able to meet the demands of his position at BNSF; suggested that Nall be cautious with balance situations; and added that Nall was able to perform balance tasks safely.

BNSF found some of the statements in these reports "concerning" and kept Nall on leave. BNSF emphasized that its rail yard employees "need[ ] to be able to make quick decisions and take quick actions in order to work safely" and that "[b]alance is essential to working safely as a brakeman/switchman/conductor." In addition, BNSF provided Nall with five pages of photographs depicting some of his job duties and asked for his neurologist to review them and return a statement to BNSF regarding Nall’s ability to complete the depicted tasks.

Dr. Joseph Jankovic, a neurologist and the director of the Parkinson’s Disease Center and Movement Disorders Clinic at the Baylor College of Medicine, reviewed the photographs. He concluded that Nall was able to perform the job duties shown in the photographs safely and was "in very good condition with balance and concentration in order." BNSF next requested that Nall perform a field test. During the test, Nall successfully completed all of the requested tasks, including taking instructions via radio, climbing on and off equipment, and walking on uneven surfaces. The physical therapist who conducted the test wrote a report in which he noted that Nall had decreased balance when reaching, a resting tremor, and slow and jerky movement patterns. Although not mentioned in the report, two BNSF employees later testified in depositions that, during the test, Nall engaged in conduct that violated two of BNSF’s "eight deadly decisions"—BNSF’s most serious safety rules. BNSF informed Nall that, based on the results of the field test, he could not return to work.

A few months later, Nall filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). He also sent a new medical status form to BNSF showing that he could safely return to work. BNSF responded that Nall was unable to return to work because of his field test results. Nall sent another medical status form to BNSF, from another doctor, clearing him to return to work, and a new BNSF doctor, Dr. Laura Gillis, responded by classifying him as "permanently medically disqualified." The EEOC concluded its investigation and sent a letter to BNSF stating that it did not agree with BNSF that Nall was a potential harm to himself or others or that he was incapable of doing his job. Indeed, the EEOC investigator concluded that there was a violation of the Americans with Disabilities Act (ADA).

Nall and his wife filed the instant lawsuit. During the litigation process, Nall kept trying to return to work. BNSF conducted a second field test and found that Nall was still unable to perform his job duties safely. Several months later, Nall submitted records to BNSF showing that his neuropsychological testing results were "essentially the same as they were in 2012." BNSF’s decision remained the same.

Against BNSF, Nall alleged disability discrimination and retaliation under the ADA and Texas Commission on Human Rights Act (TCHRA).¹ BNSF maintains that it did not discriminate against Nall because Nall was unsafe to return to work throughout the relevant time period. The district court held that Nall presented no direct evidence of discrimination, was not qualified for his position as a trainman, failed to present evidence of pretext, and was precluded from succeeding on his claims because BNSF is entitled to a "direct threat" defense. Nall timely appealed.

II.

We review de novo a district court’s grant of summary judgment, viewing all facts and evidence in the light most favorable to the nonmoving party. Cannon v. Jacobs Field Servs. N. Am., Inc. , 813 F.3d 586, 590 (5th Cir. 2016). "Summary judgment is only appropriate if the movant has shown that there is no genuine issue as to any material fact such that the movant is entitled to judgment as a matter of law." Id.

"An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant. In reviewing the evidence, we must draw all reasonable inferences in favor of the nonmoving party, and avoid credibility determinations and weighing of the evidence. In so doing, we must disregard all evidence favorable to the moving party that the jury is not required to believe." Sandstad v. CB Richard Ellis, Inc. , 309 F.3d 893, 896 (5th Cir. 2002) (citations omitted).

III.

"In employment discrimination cases, a plaintiff may present his case by direct or circumstantial evidence, or both."² Id. If the plaintiff produces direct evidence that discriminatory animus played a role in the employer’s adverse employment decision, the burden of persuasion shifts to the defendant who must prove that it would have taken the same action despite any discriminatory animus. Id. If the plaintiff only produces circumstantial evidence of discrimination, the well-known burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), guides our inquiry. Id. The district court held that Nall neither presented direct evidence of discrimination nor satisfied the circumstantial-evidence requirements of McDonnell Douglas . We address both determinations.

A.

On appeal, Nall presents several comments by BNSF employees as direct evidence of discrimination. First, right after the initial field test, Dana Dickey, the BNSF field medical manager, allegedly told Nall that Nall was "never coming back to work" and that "they were just sending [him] paper work ... to—you know, be nice." Second, Dr. Gillis and BNSF’s manager of clinical services, Carol Wilks, allegedly told Nall’s wife that "people with Parkinson’s don't get better." Third, Dickey e-mailed Dr. Gillis regarding Nall’s condition and whether BNSF should offer him a second field test and said that they "have to have it all documented." In response, Dr. Gillis noted that there was a low likelihood that Nall’s situation would improve but that they have to ask the questions. Fourth, despite Nall’s submission of several medical status forms indicating his ability to work safely, Dr. Gillis and Dickey repeatedly referenced only the first field test.

The first two statements above—that BNSF was just sending Nall paperwork to "be nice" and that "people with Parkinson’s don't get better"—were the only comments presented as direct evidence of discrimination to the district court. As a result, these are the only statements we consider. See United States v. Mix , 791 F.3d 603, 611–12 (5th Cir. 201...