Palmer v. Union Pac. R.R.

656 B.R. 789

Robert L. PALMER and Phillip M. Kelly, as Chapter 7 Bankruptcy Trusteein the Matter of Robert L. Palmer and Tamara C. Palmer, Plaintiffs, v. UNION PACIFIC RAILROAD CO., Defendant.

NO. 8:23-CV-0252

United States District Court, D. Nebraska

Signed October 4, 2023

Jacob Harksen, James H. Kaster, Lucas J. Kaster, Charles A. Delbridge, Nichols, Kaster Law Firm, Minneapolis, MN, for Plaintiff Robert L. Palmer.

Jacob Harksen, James H. Kaster, Lucas J. Kaster, Nichols, Kaster Law Firm, Minneapolis, MN, for Plaintiff Phillip M. Kelly.

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

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS

Brian C. Buescher, United States District Judge

Plaintiffs Robert Palmer and Phillip Kelly, as Chapter 7 Bankruptcy Trustee on behalf of the bankruptcy estate of Robert L. Palmer (Palmer), have sued Palmer's former employer defendant Union Pacific Railroad Company under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Filing 1. Palmer purports to be a former member of the now-decertified Harris class that sued Union Pacific for violations under the ADA. Filing 1 at 14 (¶ 66); Harris v. Union Pac. R.R. Co., 953 F.3d 1030 (8th Cir. 2020). Palmer brings two claims under the ADA against Union Pacific alleging disability discrimination due to disparate treatment. Filing 1 at 14-16 (¶¶ 69-82). Union Pacific seeks to dismiss the Complaint, arguing that Palmer's claim is time-barred. Filing 6. For the reasons stated herein, the Court grants Union Pacific's Motion to Dismiss.

I. INTRODUCTION

A. Factual Background

The Court considers the following nonconclusory allegations as true for the purposes of ruling on this motion. See Bauer v. AGA Serv. Co., 25 F.4th 587, 589 (8th Cir. 2022) (quoting Pietoso, Inc. v. Republic Servs., Inc., 4 F.4th 620, 622 (8th Cir. 2021)). Robert Palmer worked for Union Pacific between March 23, 1998, and November 11, 2013, as a Trainman/Conductor. Filing 1 at 9-10 (¶¶ 37-38, 42). Palmer has had diabetes since childhood and developed the eye condition "diabetic retinopathy" during his employment with Pacific Union. Filing 1 at 9 (¶ 39). In or around September 2011, Palmer underwent surgery to correct blurred vision caused by his eye condition then returned to work. Filing 1 at 9 (¶ 40). On or around November 11, 2013, Palmer experienced blurred vision again, this time at work. Filing 1 at 9 (¶ 41). After Palmer reported the issue, Union Pacific removed Palmer from service and informed him that he must undergo a Fitness-for-Duty (FFD) evaluation before returning to work. Filing 1 at 9-10 (¶¶ 41-42). Union Pacific conducted Palmer's FFD evaluation and imposed permanent work restrictions on Palmer in or around February 2014. Filing 1 at 10 (¶ 45). These restrictions disqualified Palmer from continuing to work in his position with Union Pacific. Filing 1 at 10 (¶ 45). Union Pacific also "refused to transfer him to another position." Filing 1 at 11 (¶ 52). In conducting the FFD evaluation, no doctor with Union Pacific physically examined Palmer nor consulted his treating medical providers. Filing 1 at 10-11 (¶¶ 47, 49). Despite Union Pacific's contrary determination, Palmer contends he was "capable of performing [the] essential functions [of his position] with or without reasonable accommodation." Filing 1 at 10 (¶ 45). Indeed, Palmer contends he "remains capable of working in his former position . . . to this day." Filing 1 at 13 (¶ 64).

After he was disqualified from continuing to work in his position, Palmer tried to get Union Pacific to reconsider its decision. Filing 1 at 11-12 (¶¶ 51, 54). On or around May 5, 2014, Palmer submitted a letter from his treating physician that cleared him to return to work and stated that his vision was good. Filing 1 at 11 (¶ 51). On or around December 29, 2014, a doctor with Union Pacific "refused to reconsider Palmer's restrictions" or "any additional information from Palmer's treating physicians regarding the stability or prognosis of his eye condition." Filing 1 at 11 (¶ 53). In or around April 2016, Palmer again requested reconsideration. Filing 1 at 12 (¶ 54). On or around April 22, 2016, a doctor with Union Pacific "reaffirm[ed] . . . the decision to permanently restrict Palmer from working" in his previous position and "informed Palmer that Union Pacific would not reconsider his work restrictions either then or in the future." Filing 1 at 12 (¶¶ 57-58).

Palmer alleges that he experienced disability discrimination due to Union Pacific's FFD policy. Filing 1 at 14-16 (¶¶ 69-82). The FFD policy applies "to all Union Pacific employees across the country." Filing 1 at 35 (¶ 16). "Fitness for Duty" is defined in Union Pacific's Medical Rules as "[a]bility to medically and functionally (including physical, mental, and/or cognitive function) safely perform the functions of a job, with or without reasonable accommodations and meet medical standards established by regulatory agencies in accordance with federal and/or state laws." Filing 1-1 at 12. The FFD policy requires that "[i]f the employee experiences a [reportable] health event noted in Appendix B, the employee should not report for, or perform, his/her job until Fitness-for-Duty clearance has been provided for such work by [Health and Medical Services (HMS)]." Filing 1-1 at 3. "Reportable health events" include diabetes, a "seizure of any kind," heart attacks, and "[n]ew use of hearing aids." Filing 1-1 at 13 (listing categories of conditions as "Cardiovascular," "Seizure or Loss of Consciousness," "Significant Vision or Hearing Change," "Diabetes Treated with Insulin," and "Severe Sleep Apnea"). The employee must also "[p]rovid[e], upon request, information from the employees [sic] health care provider." Filing 1-1 at 3. After receiving an employee's medical records, Union Pacific's Health and Medical Services Department (HMS) "conducts a 'file review' and issues a Fitness-for-Duty determination that the employee is either fit for duty, fit for duty with restrictions, or unfit for duty." Filing 1 at 6-7 (¶ 25).

HMS relies on the Federal Motor Carrier Safety Administration ("FMCSA") 2014 Medical Examiner's Handbook to conduct FFD Evaluations, specifically "to determine which health conditions required work restrictions, which standard restrictions to impose, and how long those restrictions should remain in place." Filing 1 at 7 (¶ 28). Palmer alleges that the Handbook "did not apply to railroad workers, but instead provided non-binding guidance to FMCSA medical examiners intended for use in medical certification of drivers operating a commercial vehicle in interstate commerce." Filing 1 at 7 (¶ 30). He also alleges that, by 2015, HMS "learned" that the Handbook was "outdated" but continued to rely on it in its Medical Rules. Filing 1 at 8 (¶ 32).

B. Procedural Background

Prior to this suit, Palmer alleges that he was a member of a class action suit (Harris) against Union Pacific alleging disability discrimination under the ADA. Filing 1 at 14 (¶ 66). An Amended Complaint was filed on behalf of the class in the District Court for the Western District of Washington on February 19, 2016. Filing 1 at 13-14 (¶ 65); Harris v. Union Pacific R.R. Co., No. 16-381 (D. Neb. Feb. 19, 2016), ECF No. 20.¹ The Amended Complaint described the class as:

Individuals who were removed from service over their objection, and/or suffered another adverse employment action, during their employment with Union Pacific for reasons related to a Fitness-for-Duty evaluation at any time from 300 days before the earliest date that a named Plaintiff filed an administrative charge of discrimination to the resolution of this action.

Case No. 16-381, ECF No. 20 at 17 (¶ 116). Among the many Counts asserted in the Amended Complaint were a disparate-treatment claim pursuant to 42 U.S.C. § 12112(a) and (b)(6), a disparate-impact claim pursuant to 42 U.S.C. § 12112(b)(6) and (b)(3), an unlawful-medical-inquiries claim pursuant to 42 U.S.C. § 12112(d)(4)(A), and a failure-to-accommodate claim pursuant to 42 U.S.C. § 12112(b)(5)(A). Case No. 16-381, ECF No. 20 at 21-25 (¶¶ 136-163).² The case was then transferred to this Court. Case No. 16-381, ECF No. 51 at 3.

The Harris plaintiffs sought class certification for their disparate-treatment claim but not on their disparate-impact, unlawful-medical-inquiries, or failure-to-accommodate claims before a different judge of this Court. Case No. 16-381, ECF No. 241 at 22. When seeking certification, the plaintiffs described the class as "[a]ll individuals who have been or will be subject to a fitness-for-duty examination as a result of a reportable health event at any time from September 18, 2014 until the final resolution of this action." Case No. 16-381, ECF No. 240 at 1. The class was certified in February 2019. See Harris v. Union Pac. R.R. Co., 2020 WL 4504392, at *1 (D. Neb. Aug. 5, 2020); Harris, No. 16-381, ECF No. 307. The Eighth Circuit Court of Appeals reversed and decertified the class on March 24, 2020. Harris, 953 F.3d 1030. Palmer filed a charge of discrimination with the EEOC on April 24, 2020, and the EEOC issued a right-to-sue letter on June 5, 2023. Filing 1 at 14 (¶ 68). Palmer filed a Complaint against Union Pacific with the Court on May 23, 2022. Filing 1.

Palmer alleges two counts of disability discrimination on disparate-treatment theories under the ADA. Count I asserts a claim under 42 U.S.C. § 12112(a), alleging that "Union Pacific discriminated against Palmer on the basis of disability by, among other things, removing him from service because of a disability." Filing I at 15. Count II asserts a claim under 42 U.S.C. § 12112(b)(6), alleging:

Union Pacific discriminated against Palmer on the basis of disability by using facially discriminatory qualification standards, employment tests, and/or other selection criteria, as part of its Fitness-For-Duty program and related policies, that

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