Howard v. Norfolk S. Corp.

KENTON L. HOWARD, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, Defendant.

Case No.: 2:17-cv-02163-RDP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

September 17, 2020

MEMORANDUM OPINION

This case is before the court on Defendant's Motion for Summary Judgment. (Doc. # 49). The Motion has been fully briefed (Docs. # 50, 59, 63) and is under submission. After careful review, and for the reasons discussed below, the court concludes that Defendant's Motion for Summary Judgment (Doc. # 49) is due to be denied.

I. Factual Background¹

Plaintiff Kenton Howard was conditionally hired by Defendant Norfolk Southern Corporation ("Defendant" or "Norfolk") as a conductor-trainee on June 1, 2006. (Doc. # 51-1 at 76;² Doc. # 51-2 at 17). Norfolk is a "freight railroad that operates large freight trains weighing and hauling thousands of tons on more than 20,000 route miles in 22 states and the District of Columbia." (Doc. # 51-7 at 1, ¶ 3). The duties of a conductor involve "assembl[ing] railcarstogether to form a train," "separat[ing] out or 'uncoupl[ing]' a car or group of cars from an assembled train," "mov[ing] or 'throw[ing]' track switches to align track sections," "apply[ing] and release[ing] hand brakes on train cars," "lift[ing] and carry[ing] telemetry units," and "install[ing] . . . train 'knuckle[s].'" (Doc. # 51-2 at 25). A conductor is expected to be able to "avoid drowsiness and stay mentally alert, including during periods of no physical activity (e.g., when riding in [the] cab of [a] moving locomotive and being on lookout for signals[] and monitoring track conditions)." (Doc. # 51-2 at 25). The position is considered "safety sensitive," and Plaintiff has acknowledged that "[y]ou ha[ve] to be paying attention at all times while [working]." (Doc. # 51-1 at 118). Conductors are considered to have the "lowest seniority," meaning they have little control over their work schedules, frequently work nights, weekends, and holidays, and often have shifts that last up to twelve hours. (Doc. # 51-1 at 102-03, 118-19; Doc. # 51-7 at 2, ¶ 11).

Under the conditions of Plaintiff's employment offer, he was required to undergo a background check and "pre-hire" medical examination.³ (Doc. # 51-1 at 81; Doc. # 51-2 at 17). On June 13, 2006, Plaintiff met with Dr. Kristin Brunsrold for his medical examination. (Doc. # 51-3 at 1). During this examination, Plaintiff disclosed that he had surgery in 1994 to repair an ACL tear on his left knee. (Doc. # 51-3 at 2). However, Plaintiff stated that he had no limitations from the surgery, and he was not taking any medication (either prescription or non-prescription).⁴(Doc. # 51-1 at 81; Doc. # 51-3 at 2). Dr. Brunsrold "recommend[ed that Plaintiff was] qualified with no work restrictions/accommodations." (Doc. # 51-3 at 3).

On June 16, 2006, Norfolk sent a letter to Plaintiff regarding his left knee surgery. Norfolk requested Plaintiff obtain and submit a written report from his physician stating that his knee was stable or that any issues with his knee had been resolved and that Plaintiff was able to safely perform the essential functions of his position. (Doc. # 51-3 at 4). On June 20, 2016, Dr. Brian Cressman, a physician at the Walker Wellness Center, confirmed in writing that Plaintiff's knee issue "ha[d] resolved" and that Plaintiff had no work restrictions. (Doc. # 51-3 at 7). Plaintiff, however, testified that Dr. Cressman was not his physician and "was just somebody [he] went to to get a letter [so] [he] could go to work. [Dr. Cressman] [was] not an orthopedic. [He was] just a regular doctor . . . I . . . went [to] . . . [for an] evaluation . . . ." (Doc. # 51-1 at 132-33).

On July 10, 2006, Defendant employed Plaintiff as a full-time conductor-trainee. (Doc. # 51-2 at 21). He remained a conductor-trainee for approximately four or five months until he "mark[ed] up," at which point he became a brakeman. (Doc. # 51-1 at 82-83). He remained a brakeman until he was promoted to conductor. (Doc. # 51-3 at 20).

Beginning in early 2007, Plaintiff began to experience pain in his knees and back. (Doc. # 51-1 at 89-90). Plaintiff informed Trainmaster Steve Smith that he was experiencing this pain and asked Smith how Norfolk "handle[d] prescriptions." (Doc. # 51-1 at 89). Plaintiff asked Smith if he could get a list of all the medications employees were allowed to take or were prohibited from taking. (Doc. # 51-1 at 90). Smith told him there was no list and that if Plaintiff had a prescription for it, he was "good." (Doc. # 51-1 at 90). Plaintiff also testified that he called Norfolk's "medical" department to further inquire about a medication list and again was informed that there was not alist but that he needed to tell them what medications he was taking. (Doc. # 51-1 at 91).

Plaintiff testified that, in early 2007, he went to see a pain management specialist, Dr. Ali, for his knee and back pain; he did not go to an orthopedist.⁵ (Doc. # 51-1 at 92-93). Dr. Ali prescribed Plaintiff 40 milligrams of Oxycodone, to be taken twice a day.⁶ (Doc. # 51-1 at 93-94). Around this same time, Plaintiff was also diagnosed with a sagittal tear in his L-4 in his back. (Doc. # 51-1 at 95). Plaintiff did not see a doctor to get a diagnosis for his knee pain;⁷ he believed the pain was related to screws implanted in his knee during his ACL surgery in 1994. (Doc. # 51-1 at 95-96). Plaintiff did not inform any of his supervisors or co-workers that he was seeing a pain management specialist, that he was diagnosed with a back condition, or that he was taking prescription drugs. (Doc. # 51-1 at 95).

Effective October 16, 2007, Plaintiff was promoted from conductor to "Operations Supervisor Trainee." (Doc. # 51-1 at 83-84; Doc. # 51-3 at 18-19). In that new position, Plaintiff "was responsible for supervising [] employees[] [and] making sure they followed the rules . . . safely[] [and] efficiently." (Doc. # 51-1 at 85). Plaintiff was also trained "in accident and scene investigation where if there was a car versus train, [he] would be able to know what to lookfor. [He] was trained in . . . teaching classes to engineers and conductors and brakemen on safety [a]nd just monitoring and mak[ing] sure the workers worked safely and got their work done." (Doc. # 51-1 at 85). Plaintiff testified that one of the reasons he accepted the promotion "was because [his] knees and . . . back had started hurting . . . from walking on the ballast stone . . . , and [he] figured [he] could go to this job and [he] would be fine" and not have to walk "three to four miles every shift on the ballast stone." (Doc. # 51-1 at 88). There is nothing in the Rule 56 record suggesting Plaintiff informed anyone at Norfolk this was the reason he took the position.

On April 27, 2008, Plaintiff resigned his new position before he was to be made a full-time Operations Supervisor. (Doc. # 51-2 at 24). Plaintiff testified he resigned because Superintendent Bryson and Trainmaster Smith told him that "[he] was [required] . . . to find faults . . . in people [as a supervisor], meaning [he] [was] put on the quota system [and] . . . had to find 'X' number of disciplinary rule violations in a month's time period," even if no rule violation had occurred. (Doc. # 51-1 at 87-88). Plaintiff also resigned because the position "was more demanding than he could handle." (Doc. # 51-1 at 96; Doc. # 51-2 at 24). After stepping down from the Operations Supervisor Trainee position, Plaintiff resumed his position as conductor. (Doc. # 51-1 at 99).

Plaintiff testified he first saw Dr. Elliot Rampula in 2008. (Doc. # 51-1 at 100). Dr. Rampula began prescribing Plaintiff Oxycodone and Adderall. (Doc. # 51-1 at 100). Plaintiff testified that he does not recall the dosage of Oxycodone Dr. Rampula prescribed him but that he believed it was around 120 milligrams per day. (Doc. # 51-1 at 104).

On May 27, 2009, Norfolk required Plaintiff to undergo another medical examination. (Doc. # 51-1 at 134; Doc. # 51-3 at 8). Plaintiff did not inform Norfolk that he was experiencing any knee pain or back pain, and he had not informed Norfolk that he was taking any medication—notwithstanding the fact that, at the time of this examination, he was taking high levels ofOxycodone. (Doc. # 51-1 at 135; Doc. # 51-3 at 8). Plaintiff testified he did not disclose he was taking Oxycodone because that "[was] [his] personal medical information." (Doc. # 51-1 at 136).

When Dr. Rampulla died, Plaintiff sought other pain management physicians. He briefly saw Dr. Mangieri. (Doc. # 51-1 at 279). After Dr. Mangieri, in 2010, Plaintiff went to Dr. Rudy Veluz. Dr. Veluz was the first physician to prescribe Plaintiff Methadone⁸ for his knee and back pain.⁹ (Doc. # 51-1 at 184).

On April 8, 2011, Plaintiff underwent another medical examination with Dr. Donald Battle. (Doc. # 51-3 at 13). Unlike in his 2009 examination, this time Plaintiff indicated that he was experiencing knee pain; however, he did not indicate that he was experiencing back pain. (Doc. # 51-1 at 138; Doc. # 51-3 at 13). Plaintiff did not disclose to Dr. Battle that he was taking any medications during this examination, even though he testified that during this time, he was taking anywhere between 120 and 180 milligrams of Oxycontin (or Oxycodone) per day and 30-40 milligrams of Methadone per day.¹⁰ (Doc. # 51-1 at 140).

On February 23, 2012, Dr. Veluz examined Plaintiff at St. Jude Thaddeus Internal Medicine in Irondale, Alabama. (Doc. # 51-5 at 13). Plaintiff presented with "chronic bilateral knee pain w/ surgery," (2) "left knee meniscus [and] anterior cruciate ligament repair," (3) "3 right knee arthroscopes[,] bilateral joint effusion[,] and swelling," and (4) "arthritic changes - left kneerepair." (Doc. # 51-5 at 16). During this exam, Dr. Veluz noted that Plaintiff's current treatment regimen (i.e., the pain medication) was "indefinite at [that] time" but that Plaintiff "[was] able to do daily...