Equal Emp't Opportunity Comm'n v. BNSF Ry. Co.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant.

CASE NO. C14-1488 MJP

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

January 8, 2016

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT, BNSF'S MOTION FOR SANCTIONS, BNSF'S MOTION TO EXCLUDE TESTIMONY

THIS MATTER comes before the Court on Plaintiff Equal Employment Opportunity Commission's ("EEOC's) Partial Motion for Summary Judgment and Defendant BNSF Railway Company's ("BNSF's") Motion for Summary Judgment (Dkt. No. 91). Having reviewed the Motions, the Responses (Dkt. Nos. 98, 96), the Replies (Dkt. Nos. 99, 100), and all related papers, the Court hereby GRANTS EEOC's Motion on ADA liability and DENIES BNSF's Motion. A trial on damages will proceed as scheduled. After reviewing the related briefing, the Court further DENIES BNSF's Motion for Sanctions (Dkt. No. 114) and finds BNSF's Motion to Exclude Testimony (Dkt. No. 90) moot.

Background

The EEOC brings this case on behalf of Russell Holt, who applied for a position as a senior patrol officer with BNSF in 2011.

I. Factual Background

The facts material to liability are undisputed; because the Court is granting the EEOC's motion on liability, the summary that follows places the evidence in the light most favorable to BNSF.

Senior patrol officers with BNSF are certified police officers with responsibilities and powers similar to those of government police officers. See 49 U.S.C. § 28101. Prior to applying for the position with BNSF, Mr. Holt had been working as a patrol deputy and criminal investigator with the Pulaski County Sherriff's Office in Arkansas between 2006 and 2011. (Holt Decl., Dkt. No. 88 at 1-2; Holt Dep., Dkt. No. 85, Ex. 1 at 57:4-12; Holt Dep., Dkt. No. 91 at 10-20.)

In 2007 Mr. Holt suffered a back injury after lifting weights. (Holt Dep., Dkt. No. 91, Ex. 1 at 23:17-22; Heck Dep., Dkt. No. 91, Ex. 5 at 14:14-19.) According to an August 2007 medical record, several months after the injury, a doctor hypothesized the injury could have occurred during the workout or previously during his work as a police officer. (Heck Dep., Dkt. No. 91, Ex. 5 at 71:6-14.) A 2007 MRI of Mr. Holt showed a two-level disc extrusion in his back. (Heck Dep., Dkt. No. 91, Ex. 5 at 27:15-28:21.) Mr. Holt was treated with epidural steroid injections, chiropractic care, physical therapy and medicines from 2007 to 2009 and continued to receive chiropractic treatments through 2011. (See Heck Dep., Dkt. No. 91, Ex. 5 at 111-127; Fender Records, Dkt. No. 91, Ex. 6.) He had an additional MRI in 2009, which showed a new disc extrusion but improvement in other areas. (Heck Dep., Dkt. No. 91, Ex. 5 at 59:11-6017.)During this period Mr. Holt did not miss any work as a police officer as a result of back pain. (Holt Decl., Dkt. No. 88 at 1-2.)

In 2011 Mr. Holt interviewed for a position with BNSF. (Dkt. No. 91, Ex. 1 at 59:9-61:15.) He received a conditional offer subject to passing a medical examination and criminal background check. (Holt Dep., Dkt. No. 91, Ex. 1 at 61:18-62:8 & Ex. 2.)

BNSF uses a medical contractor, Comprehensive Health Service ("CHS"), to coordinate its multi-step post-offer medical evaluation process. (Jarrard Dep., Dkt. No. 91, Ex. 7 at 46:12-49:2.) Candidates are required to take a shoulder and knee physical capabilities test and a hair-sample drug test, undergo a basic physical examination and psychological evaluation, and complete a CHS medical questionnaire. (Id., Kowalkowski Dep., Dkt. No. 91, Ex. 8 at 49:9-547.) CHS nurses review the questionnaire and may conduct follow-up interviews based on any "yes" answers. (Dkt. No. 91, Ex. 7 at 46:20-48:8.) CHS was entitled to "clear" candidates after the initial medical examination, but it could also send the applicant's information to BNSF's medical department for review and a final decision. (Dkt. No. 91, Ex. 8 at 44:20-45:15.)

Here, Mr. Holt answered "yes" to two items in CHS's medical questionnaire: "Have you ever had a back injury" and "Do you currently have or have you ever had . . . [b]ack pain?" (Dkt. No. 91, Ex. 9 at 5-6.) He briefly explained, "Bulging dis[c] in 2007. Treated with chiropractic care." (Id. at 5.) CHS conducted a follow-up interview in which records reflect that he reported he had non-work related back strain, namely a "bulging disc," in 2007; had an MRI; and was treated by a chiropractor for only four to six months. (Id. at 10.) CHS requested "back MRs" and received Mr. Holt's MRI from 2007. (Id.) Mr. Holt also provided a letter from his treating doctor, Dr. Heck, and a letter from his chiropractor, Dr. Fender. (Holt Dep., Dkt. No. 91, Ex. 1 at 65:15-22.)

Mr. Holt also had a physical examination by a physician named Dr. Hixson, who was retained by CHS for this purpose. Again Mr. Holt reported a bulging disc and chiropractic treatment. Dr. Hixson reported to BNSF that she found no abnormalities; no restrictions were needed; and Holt was not likely to experience any symptoms in the next two years impairing his performance or presenting a risk to the health and safety of himself or others. (Hixson Dep., Dkt. No. 91, Ex. 10 at 35:14-37:16 & Ex. 1 at 71-74.) She did not have access to either the 2007 or 2009 MRI, but assumed that he had had one based on his report of a bulging disc. (Hixson Dep., Dkt. No. 91, Ex. 10 at 54:14-20.) She testified at her deposition that knowing that Mr. Holt had an extruded rather than bulging disc would have led her to "look[ ] at the back a little more closely and look[ ] more for signs of nerve root impingement." (Id. at 52:13-21.) She agreed that it was "possible" that knowing that he had two extruded discs could have affected her assessment. (Id. at 52:22-53:2.)

CHS then forwarded Mr. Holt's records—including the 2007 MRI, doctors' notes, and Mr. Holt's completed questionnaire—to BNSF medical officer Dr. Jarrard for a review and a final decision. (Dkt. No. 91, Ex. 7 at 118:5-121:3.) Dr. Jarrard reviewed the records but made no decision about whether Mr. Holt could perform the senior patrol officer job safely because he concluded that he lacked sufficient information. (Dkt. No. 91, Ex. 3 at 101:6-14.) Instead, he composed a request to be sent to Mr. Holt by CHS which requested a radiologist's report of a current MRI, with comparison to the 2007 MRI; pharmacy records for the past two years; and all additional medical records for the past two years. (See Dkt. No. 91, Ex. 9 at 11.)

Mr. Holt testified that he sought an MRI but the doctor he spoke to would not approve it because it was for a job application rather than because he was experiencing pain. (Dkt. No. 91, Ex. 1 at 79:1-13.) Through emails and/or phone calls with BNSF representatives, Mr. Holtexplained that because he had been asymptomatic since 2009, his doctor would not approve it, and therefore he would have to pay for the MRI. (Dkt. No. 30 at 3; Dkt. No. 85, Ex. A at 82:2-22.) An MRI at Mr. Holt's doctor's office in the absence of insurance would have cost approximately $2,000. (Dkt. No. 91, Ex. 5 at 23:6-7.) Despite Mr. Holt's requests, BNSF refused to waive the requirement. (Dkt. No. 85, Ex. A at 82:23-83:11.) Because Mr. Holt did not provide the MRI and other information Dr. Jarrard had requested, it treated him as having declined the position, although he had not. (Dkt. No. 91, Ex. 3 at 170:2-12.)

BNSF also cites later medical evidence showing that Mr. Holt experienced additional symptoms from his back condition, but because the Court does not base its holding on the propriety of the request for an MRI from a medical perspective, it is not necessary to discuss those facts in detail here.

II. Procedural History and Summary of Argument

The Court previously denied BNSF's renewed motion to dismiss for failure to state a claim. (Dkt. No. 28.) In the briefing on that motion, BNSF argued that the language of 42 U.S.C. § 12112(d) explicitly authorized a post-conditional-job-offer, preemployment follow-up request for an MRI after an initial medical examination required for all applicants if that request was tied to issues revealed by the initial exam. (Dkt. No. 21 at 4-6.) BNSF also responded to the EEOC's argument that BNSF's actions violated 42 U.S.C. § 12112(b)(6) by arguing that the EEOC's theory that the request for an MRI could be a "selection criterion" contradicted EEOC interpretive guidance on a regulation interpreting that provision. (Id. at 6-7 (citing 29 C.F.R. § 1630.14 App.).) The Court, citing § 12112(b)(6) and 29 C.F.R. § 1630.14(b), did not find either of these arguments persuasive. (Dkt. No. 28 at 5.)

BNSF now renews this argument in its motion for summary judgment, pointing out for the first time that § 12112(b)(6) is intended to function as a disparate impact test and arguing it is inappropriate to interpret "selection criterion" as an additional requirement imposed only on individuals whom the employer may perceive as disabled, an interpretation that would transform the provision into a disparate treatment test. (Dkt. No. 91 at 15.) It also repeats the argument that the EEOC's interpretive guidance controls the scope of 29 C.F.R. § 1630.14(b) rather than explaining one way the regulation might come into play. (Dkt. No. 91 at 15-16 (citing 29 C.F.R. § 1630.14 App.).)

BNSF also argues that it did not decline to hire Holt on the basis of a "record of" disability because his records did not show a substantially limiting impairment and it did not decline to hire him on the basis of "regarded-as" disability because it did not know whether Holt's prior or latent back condition constituted an actual impairment. (Dkt. No. 91 at 20-21.) In its motion, EEOC points out that the 2008 amendments to the ADA relaxed the definition of "regarded as" disability, see 42 U.S.C. § 12102(1)(C) & (3)(A), because Congress was concerned courts were interpreting the former definition too strictly. (Dkt. No. 84 at 12-13.) See generally 29 C.F.R. § 1630 App; ADA Amendments Act of 2008 ("ADAAA"), Pub....