Bingham v. Union Pac. R.R.

693 F.Supp.3d 1033

Denny BINGHAM, Plaintiff, v. UNION PACIFIC RAILROAD CO., Defendant.

8:22-CV-118

United States District Court, D. Nebraska

Signed September 22, 2023

Kathryn E. Averwater, Casey, Jones Law Firm, Minneapolis, MN, Nicholas D. Thompson, Casey Jones Law Firm Casey Jones Law LLC, Appleton, WI, for Plaintiff.

Addison C. McCauley, Scott P. Moore, Baird, Holm Law Firm, Omaha, NE, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Brian C. Buescher, United States District Judge

Plaintiff Denny Bingham filed suit against his former employer, Union Pacific Railroad Company (Union Pacific), under the Americans with Disabilities Act, as amended by the Americans with Disabilities Amendments Act of 2008, 42 U.S.C. § 12101, et seq. (ADA). Filing 1 at 1-4. While employed at Union Pacific, Bingham suffered an acute ischemic stroke on May 2, 2019. Filing 1 at 2; Filing 7 at 2. Bingham alleges that as a result of his stroke and Union Pacific's failure to abide by the ADA, he was "effectively terminated for unsubstantiated concerns regarding [his] risk of sudden incapacitation." Filing 1 at 1. He filed suit in this Court asserting "that Union Pacific intentionally discriminated against him on the basis of disability and failed to grant him a reasonable accommodation." Filing 46 at 55 (¶133). Count I of Bingham's Complaint alleges a disparate treatment claim while Count II of his Complaint alleges a failure to accommodate claim. Filing 1 at 3-4. This matter is now before the Court on Union Pacific's Motion for Summary Judgment. Filing 38. For the following reasons, the Court grants summary judgment in Union Pacific's favor on both Counts.¹

I. BACKGROUND

A. Bingham's Work History at Union Pacific

Bingham began working for Union Pacific in 2005 and was assigned to the engineering department. Filing 46 at 55 (¶134). He was initially employed as a "track-repair laborer," which required him to place railroad ties on the track and replace broken rails. Filing 46 at 55 (¶135). However, he soon "began working as an on-rail machine operator, where he ran the ballast regulator. In that role he would regulate the rock and the slope of the rock placed on railroad tracks to keep the tracks from shifting." Filing 46 at 55-56 (¶136). Bingham held that position for approximately six months. Filing 46 at 55-56 (¶136). Following a brief furlough, he "returned as a weed mower operator where he would operate a cab tractor to mow the right of ways next to the railroad tracks." Filing 46 at 56 (¶137). After working as a weed mower operator for two years, Bingham then became a "track inspector." Filing 46 at 56 (¶138). Bigham was a track inspector at all relevant times pertinent to this suit. Filing 46 at 2 (¶6).

B. Bingham's Duties as a Track Inspector

Track inspectors are considered "safety-sensitive" positions by the Federal Railroad Administration (FRA). Filing 46 at 6 (¶22); see also 49 C.F.R. § 214.7. As a track inspector, Bingham worked by himself, drove a "hi-rail" vehicle, and was "responsible for inspecting and performing some maintenance and repair of Union Pacific railroad tracks for defects." Filing 46 at 2 (¶¶7, 8).² He "was responsible for inspecting approximately 150 miles of track per shift." Filing 46 at 4 (¶16). Bingham would begin his shift at the Union Pacific railyard in Gering, Nebraska, and then drive the hi-rail vehicle to the portion of the railroad he was required to inspect. Filing 46 at 3 (¶11). It could take him anywhere from twenty minutes to two hours to arrive at his destination. Filing 46 at 3 (¶12). As such, Bingham drove hundreds of miles on highways and roads. Filing 46 at 3 (¶12). He was also required to be "on-call and would get called into work on any given date, day or night, in all weather conditions to address issues that impact the safety of the rails such as floods or other events[.]" Filing 46 at 6 (¶21). According to Bingham, being a track inspector is a "difficult" job and "is not a position for everybody." Filing 40-2 at 71-72.

Once Bigham arrived at his destination for the day, he began by first seeking permission from dispatchers "to enter the Union Pacific main line" (i.e., active rails). Filing 46 at 3 (¶13). He would then inspect his hi-rail vehicle for defects and ensure that he had his personal protective equipment (e.g., safety glasses, hard hat, ear protection). Filing 46 at 4 (¶14). After sitting on the railroad crossing and engaging the hi-rail, Bingham would begin driving down the rail "look[ing] for defects in the track, defects in other Union Pacific equipment such as wayside signals and signs, as well as other environmental issues that may impact safety[.]" Filing 46 at 4-5 (¶¶15, 17). In order to perform his duties as a track inspector, Bingham was required "to frequently get out of his vehicle . . . to conduct inspections, including inspecting railroad switches, ties, and similar items." Filing 46 at 5 (¶18). He "also performed some maintenance and repairs on the rails." Filing 46 at 5 (¶19). Bingham estimated that on some occasions he had to exit his vehicle up to "[o]ne hundred times a day." Filing 46 at 5 (¶18) (citing Filing 40-2 at 21). Sometimes while he was working outside of the hi-rail and inspecting track, active trains would pass by Bingham on live rails that were next to him. Filing 46 at 5 (¶20).

During his deposition, Bingham agreed that a track inspector is a "safety sensitive" position. Filing 40-2 at 30. When asked whether it was a "[d]angerous job that [he] did[,]" Bingham responded, "Yes. The railroad is a dangerous job." Filing 40-2 at 27. He also admitted that were he to lose consciousness suddenly while outside of his truck, he could pose a danger to himself and others given the potential to stumble, fall, and be hit by a locomotive or train. Filing 40-2 at 26-27.³

C. Bingham's Stroke and Hospitalization

On or about May 2, 2019, Bingham woke up with a continuing headache that had started to manifest the night before. Filing 46 at 9 (¶27). While attending his child's soccer game, Bingham's ex-wife told him that "he looked pale and that his speech was slurred." Filing 46 at 9 (¶28). Bingham went to a medical clinic where his blood pressure was taken. Filing 46 at 9 (¶29). He was then advised by the clinic's medical personnel that he "needed to immediately go to the hospital." Filing 46 at 9 (¶29). Bingham followed this advice and proceeded to the emergency room at Regional West Medical Center. Filing 46 at 9 (¶30). When he arrived, his blood pressure was 220/80 and he reported trouble talking. Filing 46 at 9 (¶31). Results from a computed tomography (CT) scan and magnetic resonance imaging (MRI) "confirmed that Bingham had an 'acute left frontal lobe stroke.' " Filing 46 at 9 (¶32). Specifically, "Bingham had an acute small infarct in the lateral left frontal lobe measuring 6 mm in diameter." Filing 46 at 9 (¶33). Bingham's "treating providers concluded that the stroke was likely caused by long-standing hypertension and [his] noncompliance with his blood pressure medication." Filing 46 at 10 (¶34).⁴

While Bingham was still in the hospital, Union Pacific sent him a letter regarding his medical leave status. Filing 46 at 11 (¶38); Filing 40-19 at 1. Bingham was informed that he was placed on a medical leave of absence from May 2, 2019, to July 3, 2019. Filing 40-2 at 86. He was also advised that he would need to undergo a fitness for duty (FFD) examination before returning to work. Filing 46 at 38 (¶91). In this letter, Union Pacific also requested medical records relevant to Bingham's stroke. Filing 46 at 38 (¶92). Bingham spent five days at Regional West Medical Center and was discharged on May 7, 2019. Filing 46 at (¶35). None of the doctors who treated Bingham during his hospital stay provided him with a release to return to work. Filing 46 at 10 (¶37) (citing Filing 40-2 at 44). However, "[h]is treating provider at the hospital told Bingham to follow up with a neurologist when he was discharged." Filing 46 at 10 (¶36).

D. Bingham's Follow-Up Care

On May 10, 2019, Bingham saw Jennifer Griebel, a family nurse practitioner, for follow-up care. Filing 46 at 11 (¶¶38, 39). According to Griebel, this was the first time that Bingham had visited her. Filing 40-5 at 11. "Griebel has no specific training in neurology, does not evaluate individuals for fitness for duty . . . and has never evaluated any railroad workers for their ability to safely perform their job." Filing 46 at 11 (¶40). During her deposition, Griebel stated that she could not recall ever discussing Bingham's specific job duties at Union Pacific with him. Filing 40-5 at 9. She also stated that she did not "know what position he held when he was working at the railroad." Filing 40-5 at 9. Griebel further testified that if she had evaluated Bingham's fitness for duty that would have been notated in her records, but her records did not reflect that any such assessment had been done. Filing 40-5 at 13.

On June 6, 2019, Bingham met with Dr. Tracie Caller, a neurologist. Filing 46 at 13 (¶44); Filing 42-4 at 2.⁵ In a declaration she signed on February 23, 2023, Dr. Caller said she was unaware of Bingham's "job duties in his position with Union Pacific" and that she "did not evaluate his fitness to return to work and provided no opinion regarding his fitness for duty or his ability to return to work." Filing 40-8 at 1. Dr. Caller later completed a second affidavit in connection with this case on March 31, 2023. See generally Filing 42-4. In this affidavit, she states that her examination of Bingham on June 6, 2019, "demonstrated that [he] had recovered from his stroke and that restrictions were therefore unwarranted." Filing 42-4 at 2.⁶ Dr. Caller's latter declaration does not explain or otherwise expand on what she means by the term "restrictions"—whether they be workplace, lifestyle, dietary, or other. See generally Filing 42-4. Regardless, at no point in her latter...