Otero v. Ind. Harbor Belt R.R. Co.

664 F.Supp.3d 860

Luis OTERO and Zachary Johnson, Plaintiffs, v. INDIANA HARBOR BELT RAILROAD CO., Defendant.

CAUSE NO. 2:19-CV-396 DRL

United States District Court, N.D. Indiana, Hammond Division

Signed March 24, 2023

Charles P. Burns, David G. Huffman-Gottschling, Jacobs Burns Orlove & Hernandez, Chicago, IL, for Plaintiffs.

Edward A. DeVries, Marcia F. Przeslawski, Wilson Elser Moskowitz Edelman & Dicker LLP, Merrillville, IN, Mary Louise Kandyba, Wilson Elser Moskowitz Edelman & Dicker LLP, Chicago, IL, for Defendant.

OPINION AND ORDER

Damon R. Leichty, Judge

Luis Otero and Zachary Johnson are employees of Indiana Harbor Belt Railroad Company (IHB). Mr. Otero has diabetes, and Mr. Johnson has hypertension. After receiving certain information about Mr. Otero's health through one of his applications for medical leave and following up with multiple examinations, IHB medically disqualified Mr. Otero without pay until his treating doctor assured IHB he could safely perform his job as a locomotive engineer. For similar reasons, IHB medically disqualified Mr. Johnson without pay and told him that he could return as a switchman/trainman/conductor if a doctor clarified the nature of his health condition. Both men sued for interference and retaliation under the Family and Medical Leave Act (FMLA) and discrimination under the Americans with Disabilities Act (ADA). Today IHB requests summary judgment. The court grants the dual motions only in respects.

BACKGROUND

A. Luis Otero.

Mr. Otero was diagnosed with type 2 diabetes mellitus in January 2014. The condition never hurt his work performance at IHB. On July 30, 2018, he submitted a request to recertify his FMLA leave for diabetes. He supported his request with a certification from his treating doctor, Dr. Nihad Muhrez. IHB informed Mr. Otero by letter that he had used all his allotted FMLA leave for the requested period. Still, IHB asked Dr. Shirley Conibear, an outside consultant, to review the request.

The treating physician's report raised concerns. In his certification, Dr. Muhrez indicated under "other relevant medical facts" that Mr. Otero "may experience hypo or hyperglycemic episodes (episodes of incapacity/flare ups)." He did not say how severe Mr. Otero's condition was—just that he could experience these issues and there could be hospital stays. Dr. Conibear agreed that the FMLA request was "reasonable," but she noted her safety concerns given that Mr. Otero operated a locomotive and was expected to be always alert. Although Dr. Conibear recommended approving FMLA leave, she also recommended that Mr. Otero submit to a fitness-for-duty examination before returning to work.

On August 9, 2018, IHB informed Mr. Otero that Dr. Conibear recommended he submit to a fitness-for-duty examination and that he would be eligible for FMLA leave on September 6, 2018. The letter recalled that IHB and Mr. Otero discussed over the phone that he would submit to this examination as soon as possible. Mr. Otero went to this examination on August 10, 2018. The examination confirmed his fitness for duty and his "good understanding" of his diabetes. Dr. Conibear reviewed the results, but she saw nothing specifically referring to or analyzing his potential episodes of incapacity and how that might affect his ability to work safely.

On September 6, 2018, IHB approved FMLA leave and obtained Mr. Otero's consent for Dr. Conibear to speak with Dr. Muhrez about the information in the July 2018 FMLA request. She was unable to reach Dr. Muhrez, who was out of town.

Mr. Otero used FMLA leave again on September 19-20, 2018. On October 5, 2018, Dr. Conibear told Melanie Lindner, IHB's Manager of Human Resources and Labor Relations, that she still had concerns about Mr. Otero's ability to operate a locomotive safely. Due to Dr. Conibear's concerns, Nicole Parchem, IHB's Director of Human Resources and Labor Relations, medically disqualified Mr. Otero with pay that same day. She cited Dr. Conibear's recommendation and the fitness-for-duty examination results. On October 8, 2018, IHB told Mr. Otero that the company still had medical concerns. The railroad requested a second fitness-for-duty examination and six months of medical records that would be reviewed by its medical consultants.

Dr. Daniel Bakston examined Mr. Otero on October 16, 2018. On October 22, 2018, after Dr. Bakston had the information he needed, he approved Mr. Otero for work with accommodations. The accommodations included an extra conductor on board the locomotive whenever Mr. Otero operated one outside the railyard. Mr. Otero also would need to check his glucose every 2-4 hours while on duty. Dr. Bakston additionally recommended that Mr. Otero submit quarterly reports from his treating specialist and undergo a yearly fitness-for-duty examination.

Dr. Bakston thought Mr. Otero could safely operate a locomotive within the railyard alone because it would be easier to stop it there. The company's human resource director inquired whether that was true by speaking with IHB's engineers, who told her it was harder to stop a train inside the railyard. She also discovered that hiring an extra conductor to sit with Mr. Otero on board would violate the collective bargaining agreements between IHB and the unions for conductors and locomotive engineers. She thus decided that the accommodations weren't options, rendering him unable to return to work.

On October 24, 2018, IHB informed Mr. Otero that he was medically disqualified from returning to work as a locomotive engineer. He still received pay for his administrative leave and benefits from October 5 through October 24 (though he did not receive the equivalent of overtime pay).

Mr. Otero requested a third opinion on October 25, 2018. He asked his union representative to contact IHB about the disqualification. On November 7, 2018, IHB explained by letter that Mr. Otero's condition caused IHB safety concerns, for him and those working around him, and that the suggested accommodations could not be made. IHB spoke with Dr. Bakston on November 19, 2018. He stood by his recommended accommodations though IHB informed him that driving a locomotive in the railyard was just as dangerous as outside the yard.

On December 4, 2018, Mr. Otero gave IHB an "Endocrinologist Evaluation Checklist." Dr. Muhrez completed this checklist more than a month earlier (October 18, 2018), reporting that Mr. Otero's insulin dosage had recently lowered, he had not had recurring hypoglycemic episodes, he had not been hospitalized, he managed his diabetes well, he did not have symptoms suggesting he would fall unconscious or an impact to his driving, and he could safely operate a train while using insulin. According to Mr. Otero's reinstatement letter, Dr. Conibear again tried to reach Dr. Muhrez, who then responded January 7, 2019; he clarified the issues that had concerned IHB all along throughout this process, thereby clearing Mr. Otero to return to work.¹ On January 9, 2019, IHB reinstated Mr. Otero.

B. Zachary Johnson.

Mr. Johnson works at IHB as a switchman/trainman/conductor. His position requires him to handle locomotives, including pulling, shoving, coupling, and uncoupling them. He was diagnosed with hypertension in June 2017. On June 6, 2017, he spoke with Manager Lindner. After she explained his rights, he applied for and received FMLA leave from May 19, 2017 to June 7, 2017. After speaking with Manager Lindner about how he also could obtain intermittent leave, he applied for and received one day off every three months for his hypertension from July 30, 2017 to July 29, 2018.

On October 26, 2017, the railroad's human resources manager informed Mr. Johnson by letter that the FMLA leave he was taking was not consistent with his application. Specifically, he had used four days in a three-week period. She requested that he update his paperwork. On November 7, 2017, Mr. Johnson applied for five days of FMLA leave per month, but he did not submit information about his ability to control his hypertension or his medications until March 22, 2018. On March 23, 2018, his request was approved for five days off per month and no more than two days off per episode.²

On June 5, 2018, Mr. Johnson marked a day during the June 9 week when he would be off work for a hernia surgery. Manager Lindner told him he needed to submit FMLA paperwork, as he had not done so for that surgery. He submitted the paperwork without a doctor's signature on June 12, 2018. IHB contacted him, and he said that he was having surgery on July 9, 2018, rather than the June date he offered before. IHB said he needed to submit another request, as his current request went through June 12. He submitted another request on June 14, 2018, and he was granted medical leave to cover the remaining time that would exceed the statutory maximum of sixty days under FMLA. His original leave lasted until August 6, 2018. He was granted an extension of medical leave through August 20, 2018.

On August 14, 2018, Mr. Johnson submitted a request for intermittent FMLA leave for his hypertension, but IHB informed him that he had used all his FMLA leave and that he could not use it again until September 23, 2018. On September 28, 2018, he submitted another request, using his certification form from March 22, 2018. The date appeared to be written over, so IHB asked Mr. Johnson to confirm that his doctor had written over an old form. Mr. Johnson's physician, Dr. Gingerich, denied doing so. IHB suspected Mr. Johnson had written the date over the old form. IHB denied his September 28 intermittent leave request on October 12, 2018.

On November 8, 2018, Mr. Johnson submitted another FMLA request based on his hypertension, now saying "at times his [blood pressure was] out of control," and "that he [was] unable to perform any job functions when his [blood pressure was] elevated." Now that Mr. Johnson had additional days to use, IHB approved his request.

Based on Mr. Johnson's previous...