Montgomery v. Union Pacific Railroad Company
Filing
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ORDER denying 58 Defendant's Motion for Summary Judgment. Signed by Judge Rosemary Marquez on 11/21/2018. (BAR)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Thomas Montgomery, et al.,
Plaintiffs,
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No. CV-17-00201-TUC-RM
ORDER
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v.
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Union Pacific Railroad Company,
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Defendant.
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Pending before the Court is Defendant Union Pacific Railroad Company’s Motion
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for Summary Judgment.
(Doc. 58.)
The Motion is fully briefed and suitable for
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determination without oral argument. (Docs. 65, 69.) For the following reasons, the
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Motion is denied.
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I.
Background1
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A.
Defendant’s Train Crew Position
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A position on Defendant’s Train Crew is an entry-level position. (DSOF ¶ 1.)
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The essential functions of a Train Crew position include, but are not limited to: operating
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locomotive equipment; applying and releasing hand brakes; riding rail cars; climbing
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onto and off of equipment; maintaining balance and coordination on equipment; reacting
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The following facts are undisputed unless otherwise noted. Fed. R. Civ. P.
56(e)(2). The Court also may consider other material on the record that is not included in
either party’s statement of facts. Fed. R. Civ. P. 56(c)(3). Defendant’s Statement of
Facts (Doc. 60) is referred to as “DSOF.” Plaintiff’s Controverting Statement of Facts
(Doc. 66) is referred to as “PSOF,” and his Statement of Supplemental Facts (Doc. 66) is
referred to as “PSSF.”
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quickly to situations; operating various designs of track switches and derails; observing
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or monitoring track conditions, the railroad right-of-way, and passing trains; inspecting
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all train cars and other equipment before leaving the yard or as needed; observing,
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interpreting, and relaying hand, lantern, and other signals affecting the movement of the
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train; and judging and controlling the speed and clearance distance of cars. (DSOF ¶¶ 3–
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5.) The parties agree that employees working on the Train Crew work alone next to live
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train tracks and may cross or work between rail cars, although they disagree as to how
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frequently employees do those tasks alone. (DSOF ¶ 6; PSOF ¶ 6.)
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The parties also agree that Defendant’s job description repeatedly states the
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importance of safety in Train Crew positions: applicants “must have zero work related
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safety violations in the past two years” and “must practice safe work habits to prevent on
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the job accidents and injuries.” (DSOF ¶ 9.) The parties dispute, however, whether the
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essential functions of a Train Crew position include the ability to perform the job safely.
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Defendant asserts that because it considers Train Crew positions particularly safety-
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sensitive, the ability to safely perform the job duties is an essential function of the Train
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Crew position.
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description does not require an applicant to perform the essential functions safely, only
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that the applicant merely be physically able to perform them. (PSOF ¶ 8.)
(DSOF ¶¶ 7–8.)
Plaintiff asserts that Defendant’s Train Crew job
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Prior to clearing a Train Crew member for employment, Defendant requires
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applicants to complete a Health History Questionnaire and an in-person physical
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examination at Logistics Health Incorporated (“LHI”). (DSOF ¶ 10.) LHI then sends the
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applicant’s records to Defendant’s Health and Medical Services office, where the fitness-
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for-duty nurses review the file and work with an Associate Medical Director to determine
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if there are any health issues that may pose a safety concern. (DSOF ¶ 11.) The
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Associate Medical Director determines if there is a significant direct threat or an issue
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with the applicant meeting the essential functions of the job. (DSOF ¶ 11.) The Chief
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Medical Officer, Dr. John Holland, weighs in as appropriate. (DSOF ¶ 11.)
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Defendant imposes work restrictions on employees with a risk of sudden
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incapacitation greater than 1% per year.
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restrictions in part on the Medical Examiner Handbook for the Federal Motor Carrier
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Safety Administration (“FMCSA”). (DSOF ¶ 19.) The FMCSA is the lead federal
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agency responsible for regulating and providing safety oversight of commercial trucking.
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(DSOF ¶ 20.) For several decades, the FMCSA has published and revised guidance for
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medical examiners regarding how they should evaluate whether a commercial driver is fit
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for duty in terms of safety. (DSOF ¶ 20.) The FMCSA handbook is based on systematic
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literature reviews and panels of medical experts who have reviewed the literature and
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provided guidance. (DSOF ¶ 21.) The FMCSA is particularly concerned with sudden
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(DSOF ¶ 18.)
Defendant bases its work
incapacitation and physical impairments that affect safety at work. (DSOF ¶ 21.)
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Defendants assert that the FMCSA Handbook is one of the most extensive sets of
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literature regarding fitness-for-duty criteria for any agency within the U.S. Department of
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Transportation, and, thus, Defendant uses it as one of several sources when evaluating
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railroad workers in safety-critical positions. (DSOF ¶ 22.) Plaintiff disputes that the
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FMCSA Handbook sets fitness-for-duty criteria for other agencies within the Department
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of Transportation. (PSOF ¶ 22.) Plaintiff further disputes that the FMCSA Handbook
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requires Defendant to apply its 1% policy to employees who do not require a commercial
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driver’s license to do their jobs, and that the 1% policy is in accordance with current
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leading medical literature. (PSOF ¶ 19; PSSF ¶ 32.)
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B.
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In January 2012, Plaintiff suffered a ruptured cerebral aneurysm and related
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subarachnoid hemorrhage. (DSOF ¶¶ 30, 50.) Plaintiff described the symptoms of his
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aneurysm as beginning with a snap, followed by “a rush of water filling up [his] head,”
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followed in turn by heat flashes, nausea, and black spots in his vision. (DSOF ¶ 42.)
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Plaintiff’s physician treated this condition by endovascular insertion of a metal coil into
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the aneurysm. (DSOF ¶ 31.)
Plaintiff’s Medical Condition
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The parties dispute, based on medical literature and expert testimony, the risk that
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Plaintiff will have another aneurysm or otherwise become suddenly incapacitated.
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Defendant states that Plaintiff has a risk of recurrent rupture or seizure greater than 1%
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per year. (DSOF ¶¶ 33–34, 36–37, 39–41.) Defendant states that the FMCSA Handbook
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recommends a minimum waiting period of five years for safety-sensitive positions after
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an “intracerebral or subarachnoid hemorrhage with risk for seizures.” (DSOF ¶ 43.)
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Plaintiff asserts that his risk of sudden incapacitation, due to either seizures or a recurrent
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rupture, is less than 1%. (PSOF ¶¶ 33–34, 36–37, 39–41; PSSF ¶ 2.) Plaintiff disputes
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that the FMCSA Handbook applies, but asserts that if the FMCSA Handbook does apply,
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the applicable waiting period is the one-year period recommended for individuals who
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suffered an intracerebral or subarachnoid hemorrhage without risk of seizures. (PSOF ¶
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43; PSSF ¶ 35.)
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C.
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On August 8, 2014, less than three years after his aneurysm, Plaintiff applied for a
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position on Defendant’s Train Crew. (DSOF ¶¶ 23, 45.) At the time of Plaintiff’s
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application, he worked for BNSF Railway Company (“BNSF”) as a Train Service
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Conductor Trainee, a position designated as safety-sensitive and nearly identical to a
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Train Crew position with Defendant. (PSSF ¶¶ 5–6, 12.) Plaintiff’s offer from BNSF
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was conditioned upon the passage of a medical examination. (PSSF ¶ 6.) Plaintiff
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provided information to BNSF about his aneurysm, including a letter from his physician
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stating that he had made “an excellent recovery” and was free from “work restrictions,”
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and BNSF cleared him to begin work. (PSSF ¶¶ 7–9.) Plaintiff suffered no seizures,
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rebleeds, instances of sudden incapacitation, or other neurological events during his
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almost year-long tenure at BNSF. (PSSF ¶ 10.)
Offer of Employment and Medical Evaluation
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On October 23, 2014, Defendant extended a job offer to Plaintiff. (DSOF ¶ 24.)
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The job offer was expressly conditioned upon Plaintiff passing the Preplacement Medical
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Evaluation (“PME”) conducted by Defendant’s Health and Medical Services Department.
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(DSOF ¶ 24.) Plaintiff accepted the conditional job offer on or about October 26, 2014.
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(DSOF ¶ 26.)
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As part of the PME, Plaintiff completed and signed a Health History
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Questionnaire. (DSOF ¶ 27.) Upon completion of the Health History Questionnaire, a
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standard preplacement examination was scheduled for November 10, 2014, between
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Plaintiff and LHI, Defendant’s third-party medical examiner. (DSOF ¶ 29.) During the
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PME process, Plaintiff informed the medical examiner that he had suffered a ruptured
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cerebral aneurysm and related subarachnoid hemorrhage.
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informed the PME examiner that his physician treated the brain condition by
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endovascular insertion of a metal coil into the aneurysm. (DSOF ¶ 31.) Plaintiff’s
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disclosure of his brain condition resulted in the flagging of his PME for further review by
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Defendant’s fitness-for-duty nurses. (DSOF ¶ 46.) LHI provided Defendant’s nurses
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(DSOF ¶ 30.)
Plaintiff
with a copy of the Health History Questionnaire and LHI’s PME form. (DSOF ¶ 46.)
On November 20, 2014, Defendant requested additional documentation to assist in
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its pre-employment medical assessment.
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requested a copy of the neurologist clinic notes from Plaintiff’s 2014 office visit and a
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copy of the 2014 MRI report. (DSOF ¶ 47.) Defendant’s request did not contain a
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warning advising Plaintiff’s physicians to redact or exclude Plaintiff’s genetic or family
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health information. (PSSF ¶ 16.)
(DSOF ¶ 47.)
Specifically, Defendant
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On November 25, 2014, Plaintiff was examined by his medical provider and
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underwent an MRI. (DSOF ¶ 48.) Copies of the documents from that examination were
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sent to Defendant on November 26, 2014. (DSOF ¶ 48.) On December 3, 2014, Plaintiff
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requested that another physician send notes of his physical examinations and MRI results
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via facsimile. (DSOF ¶ 48.) Plaintiff’s medical records from April 27, 2012, indicate
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that Plaintiff experienced memory, concentration, and stamina problems following
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surgery. (DSOF ¶ 51.)2
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On December 16, 2014, Dr. John Charbonneau (one of Defendant’s contracted
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medical doctors) noted two primary areas of concern: Plaintiff’s brain condition, and
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Plaintiff’s Obstructive Sleep Apnea. (DSOF ¶ 52.) Dr. Charbonneau believed that
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Plaintiff’s medical issues created an increased risk for sudden incapacitation. (DSOF ¶
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(PSOF ¶ 51.)
Plaintiff disputes any implication that his symptoms continued indefinitely.
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52.) The next step in Defendant’s assessment was for Dr. Charbonneau and Chief
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Medical Officer Dr. Holland to review and discuss Plaintiff’s medical records with
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Occupational Health Nurse Bridgette Ziemer during a conference call on December 23,
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2014.
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potential for future aneurysms made him unfit for a Train Crew position. (DSOF ¶ 53.)
(DSOF ¶ 53.)
In that call, Defendant ultimately determined that Plaintiff’s
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Due to its decision that Plaintiff’s medical condition created an unreasonable risk
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of sudden incapacitation, Defendant revoked its conditional offer of employment.
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(DSOF ¶ 58.) Defendant did not consider Plaintiff to be permanently restricted from a
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Train Crew position, but rather determined that Plaintiff’s brain condition likely required
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a five-year work restriction (under the FMCSA Handbook) due to the potential risk of
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seizure, with reevaluation at that time. (DSOF ¶ 59.)
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D.
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The only medical information Defendant requested as part of its assessment of
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Plaintiff’s fitness for duty was the information provided in the Health History
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Questionnaire, LHI’s visit notes, and neurologist clinic notes from Plaintiff’s 2014 office
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visit and a copy of the 2014 MRI report. (DSOF ¶ 62.) None of the questions on the
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Health History Questionnaire request information regarding family medical history or
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other genetic information. (DSOF ¶ 63.) In the medical records provided to Defendant,
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Plaintiff’s neurosurgeon states under the family history section: “Entire family history is
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negative,” and “Father deceased at the age of 76 from unknown cause.” (DSOF ¶ 64.)
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At no time did Defendant make any medical inquiry beyond the information to conduct
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the PME, and Defendant made no inquiry regarding genetic information. (DSOF ¶ 65.)
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If genetic information or family history is inadvertently received, Defendant’s medical
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staff does not consider it in making its fitness-for-duty determinations. (DSOF ¶ 66.)
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II.
Plaintiff’s Genetic Information
Standard of Review
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Summary judgment is proper “if the movant shows that there is no genuine dispute
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as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under the
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governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual
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dispute is genuine if the evidence is such that a reasonable trier of fact could resolve the
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dispute in favor of the nonmoving party. Id. In evaluating a motion for summary
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judgment, the court must “draw all reasonable inferences from the evidence” in favor of
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the non-movant. O’Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1150 (9th Cir. 2002).
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A reasonable inference is one which is supported by “significant probative evidence”
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rather than “threadbare conclusory statements.” Barnes v. Arden Mayfair, Inc., 759 F.2d
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676, 680–81 (9th Cir. 1985) (internal quotation marks omitted). If “the evidence yields
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conflicting inferences [regarding material facts], summary judgment is improper, and the
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action must proceed to trial.” O’Connor, 311 F.3d at 1150.
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The party moving for summary judgment bears the initial burden of identifying
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those portions of the record, together with affidavits, if any, that it believes demonstrate
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the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
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323 (1986). If the movant meets this burden, the burden shifts to the nonmovant to
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“come forward with specific facts showing that there is a genuine issue for trial.”
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal
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quotation marks and emphasis omitted); see also Fed. R. Civ. P. 56(c)(1).
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III.
Discussion
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Plaintiff brings two claims under the Americans with Disabilities Act (“ADA”).
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In Count One, Plaintiff alleges Defendant rescinded his job offer based on disability in
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violation of 42 U.S.C. § 12112(a). In Count Two, Plaintiff alleges Defendant’s 1%
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policy constitutes unlawful screening in violation of §§ 12112(a) & (b)(6). Defendant
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initially argued that the burden-shifting framework set forth in McDonnell Douglas Corp.
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v. Green, 411 U.S. 792 (1973), applies to Plaintiff’s ADA claims. There is no dispute,
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however, that Defendant rescinded Plaintiff’s job offer based on his prior aneurysm.
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Therefore, the burden-shifting framework is inapplicable. Snead v. Metro. Prop. & Cas.
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Ins., 237 F.3d 1080, 1093 n.10 (9th Cir. 2001).
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Plaintiff also brings a claim under the Genetic Information Nondiscrimination Act
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(“GINA”). In Count Three, Plaintiff alleges Defendant requested his family medical
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history in violation of 42 U.S.C. § 2000ff-1(b). There is no dispute that Defendant did
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not use Plaintiff’s genetic information or family medical history to make its fitness-for-
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duty determination.
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A.
Americans with Disabilities Act
1.
Qualified Individual
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Defendant contends it is entitled to summary judgment because Plaintiff cannot
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show he is a “qualified individual” within the meaning of the ADA. Plaintiff responds
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that he is qualified and asserts that, at a minimum, there is a triable issue as to whether he
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is qualified because he performed a substantially similar job for approximately one year
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prior to having the employment offer rescinded. The Court finds there is a triable issue
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of fact as to whether Plaintiff is a qualified individual.
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To state a claim under § 12112(a), Plaintiff must show (among other things) that
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he is a qualified individual with a disability. Dunlap v. Liberty Nat. Prods., Inc., 878
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F.3d 794, 798–99 (9th Cir. 2017) (citing Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 955
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(9th Cir. 2013)).
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accommodation, can perform the essential functions of the employment position that such
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individual holds or desires.” 42 U.S.C. § 12111(8). “Qualification for a position is a
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two-step inquiry. The court first examines whether the individual satisfies the ‘requisite
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skill, experience, education and other job-related requirements’ of the position.” Bates v.
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United Parcel Serv., Inc., 511 F.3d 974, 990 (9th Cir. 2007) (en banc). Defendant does
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not argue that Plaintiff lacks the required skill, experience, or education necessary for a
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Train Crew position.
A qualified individual is one “who, with or without reasonable
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The next step requires the Court to “consider[] whether the individual ‘can
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perform the essential functions of such position’ with or without a reasonable
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accommodation.” Id. (citations omitted). Essential functions are the “fundamental job
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duties of the employment position,” not including “the marginal functions of the
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position.” 29 C.F.R. § 1630.2(n)(1). In determining what functions are essential, courts
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may consider the following factors:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
The employer’s judgment as to which functions are essential;
Written job descriptions prepared before advertising or interviewing
applicants for the job;
The amount of time spent on the job performing the function;
The consequences of not requiring the incumbent to perform the
function;
The terms of a collective bargaining agreement;
The work experience of past incumbents in the job; and/or
The current work experience of incumbents in similar jobs.
Id. § 1630.2(n)(3)(i)–(vii). “A highly fact-specific inquiry is necessary to determine what
a particular job’s essential functions are.” Cripe v. City of San Jose, 261 F.3d 877, 888
n.12 (9th Cir. 2001) (citations omitted).
Here, the threshold issue is whether the ability to safely perform the duties of a
Train Crew position is itself an essential function. Defendant argues that safety is an
essential function, given the nature of Train Crew members’ responsibilities (e.g., riding
rail cars, balancing on equipment, operating track switches and derails) and the
possibility of disastrous consequences should something go wrong (e.g., death, serious
injury, and property damage, all of which occurred in a 2014 train collision caused when
an employee lost consciousness).
Plaintiff asserts that he need only show he can
physically perform the job duties to be qualified, and he disagrees that safe performance
is an essential function.
The Court agrees with Defendant and finds that safety is an essential function of a
train crew position. However, there is a triable issue of fact whether Plaintiff can
perform that function. Defendant argues the reason Plaintiff cannot perform his job
safely is because his risk of sudden incapacitation due to seizure or recurrent rupture is
over 1% per year (specifically, between 1% and 5%). (Holland Dep. 58:10–24, 87:5–9,
107:5–109:6, Docs. 60-2, 67-1.) This argument rests on the expert medical opinion of
Dr. Holland, who testified that Plaintiff’s risk of rupture is closer to 5% based on a metaanalysis completed after Defendant’s employment decision. (Id. at 83:7–84:20, 87:5–9.)
Dr. Holland further testified that prior literature placed Plaintiff’s risk between 1% and
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3%. (Id. at 87:13–88:19.) Dr. Holland believes that Plaintiff is at an increased risk of
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rupture due to his hypertension/high blood pressure, thyroid condition, obesity, and
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potential to work in high heat and humidity. (Holland Decl. ¶ 17, Doc. 60-3.)
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It is also the opinion of Dr. Holland and Dr. Raymond Schumacher that Plaintiff
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has a substantially increased risk of suffering a seizure. (Id. ¶ 18; Schumacher Report 3–
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4, Doc. 60-13.) Dr. Holland opines that Plaintiff is at risk of seizures, even if seizures
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have never occurred, for two reasons: first, the subarachnoid hemorrhage spread to
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Plaintiff’s brain cortex, evidenced by Plaintiff’s subsequent problems with concentration
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and short term memory; and second, Plaintiff had two recent frontal lobe infarctions.
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(Holland Decl. ¶ 18.) Based on the foregoing, and Defendant’s 1% policy, Dr. Holland
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opines that Plaintiff presented an unacceptable risk of sudden incapacitation. (Id. ¶ 19.)
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Predictably, Plaintiff’s expert disagrees. Dr. Kevin Trangle places Plaintiff’s risk
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of rupture or seizure at one-tenth of 1%. (Trangle Rebuttal Report 5, Doc. 67-6.) Dr.
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Trangle disagrees that hypertension/high blood pressure, thyroid issues, and working in
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hot and humid areas are additional risk factors for rupture. (Trangle Dep. 46:25–48:1,
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Doc. 67-3.) He opines that Plaintiff is not at an increased risk for seizure because the risk
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depends on the location of the hemorrhage, and Plaintiff’s hemorrhage occurred in an
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area not associated with increased risk for seizures. (Trangle Report 9, Doc. 67-4.) He
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also opines that Plaintiff’s hemorrhage did not spread to the brain cortex, as Dr. Holland
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believes. (Id. at 8.) Finally, Dr. Trangle questions the reasonableness of Defendant’s 1%
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policy and opines that, assuming the policy is reasonable, Plaintiff easily satisfied it and
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could have performed his full duties. (Trangle Rebuttal Report 5.)
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The Court agrees with Plaintiff that “[t]his case is a battle of expert opinions about
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whether [he] was qualified for the Train Crew position.” Defendant’s sole argument that
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Plaintiff is not qualified is that Plaintiff poses a risk of sudden incapacitation greater than
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1%. Defendant’s expert says that Plaintiff’s risk is greater than 1%; Plaintiff’s expert
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says it is not. It is not a district court’s function on summary judgment to “resolve an
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issue of fact based on conflicting expert testimony.” Scharf v. U.S. Attorney Gen., 597
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F.2d 1240, 1243 (9th Cir. 1979); see Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1270
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(9th Cir. 1994) (“Expert opinion evidence is itself sufficient to create a genuine issue of
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disputed fact sufficient to defeat a summary judgment motion.”). Whether Plaintiff is
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qualified is an issue for the jury.
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2.
Unlawful Screening
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An ADA claim requires proof that the employer discriminated against the plaintiff
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on the basis of disability. Dunlap, 878 F.3d at 798–99 (citation omitted). Discrimination
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includes the use of “qualification standards . . . that screen out or tend to screen out an
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individual with a disability . . . unless the standard . . . is shown to be job-related for the
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position in question and is consistent with business necessity[.]”
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12112(b)(6). There is a two-step analysis under this statute. Cripe, 261 F.3d at 886. The
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first step requires an examination of whether the defendant’s qualification standards
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screen out or tend to screen out disabled individuals. Id. There is an affirmative defense
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available to defendants at the first step; defendants may rely on qualification standards
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that “include a requirement that an individual shall not pose a direct threat to the health or
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safety of other individuals in the workplace.” Echazabal v. Chevron USA, Inc., 336 F.3d
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1023, 1027 (9th Cir. 2003) (quoting 42 U.S.C. § 12113(b)). The second step requires an
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examination of whether the defendant’s qualification standard falls within the business
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necessity exception. Cripe, 261 F.3d at 886.
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(i)
42 U.S.C. §
Effect of Qualification Standard
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At the first step, Defendant argues that Plaintiff’s job offer was rescinded based on
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an individualized assessment, not based on a qualification standard that routinely screens
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out disabled individuals. Plaintiff disagrees, arguing that disabled individuals are more
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likely to have a risk of sudden incapacitation greater than 1% and that, since Defendant
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utilizes the 1% policy across the board for all applicants, disabled individuals are
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disproportionately screened out. The Court finds there is a triable issue of fact as to
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whether Defendant utilizes a qualification standard that screens out disabled individuals.
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The Court is not persuaded by Defendant’s focus on the medical assessment of
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Plaintiff, which involved multiple medical officials examining and discussing Plaintiff’s
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medical records. That indisputably occurred. However, that assessment was geared
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toward making a single determination: whether or not Plaintiff’s risk of sudden
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incapacity is greater than 1% per year because, if so, Plaintiff presented an unacceptable
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safety risk and was unfit for employment. (Holland Dep. 58:10–24, 107:5–109:6.) It is
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the 1% policy that Plaintiff complains of. Federal law does not require Defendant to
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employ that standard. (Id. at 60:1–8.) Furthermore, it is a logical inference that non-
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disabled people are less likely than disabled people to become suddenly incapacitated.
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See Anderson, 477 U.S. at 255 (explaining that nonmovant on summary judgment is
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entitled to “all justifiable inferences”). If so, then the 1% policy would “tend to screen
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out an individual with a disability . . . .” 42 U.S.C. § 12112(b)(6). Whether the 1%
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policy does in fact screen out disabled individuals is a determination for the ultimate
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factfinder.
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(ii)
Direct Threat Defense
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Still at the first step, Defendant contends that even if the 1% policy screens out
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disabled individuals, Plaintiff’s ADA claims must fail because Plaintiff poses a direct
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threat. “[T]he burden of establishing a direct threat lies with the employer.” Echazabal,
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336 F.3d at 1027 (citations omitted). An individual is a direct threat if he or she poses “a
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significant risk to the health or safety of others that cannot be eliminated by reasonable
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accommodation.” 42 U.S.C. § 12111(3).
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Before excluding an individual from employment as a direct threat,
an employer must demonstrate that it has made an “individualized
assessment” of the employee’s ability to perform the essential functions of
the job, “based on a reasonable medical judgment that relies on the most
current medical knowledge and/or on the best available objective
evidence.” 29 C.F.R. § 1630.2(r). The factors to be considered include:
“(1) The duration of the risk; (2) The nature and severity of the potential
harm; (3) The likelihood that the potential harm will occur; and (4) The
imminence of the potential harm.” Id.
Echazabal, 336 F.3d at 1027 (footnote omitted).
Plaintiff has raised a material issue of fact as to whether Defendant’s decision was
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“based on a reasonable medical judgment that relies on the most current medical
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knowledge and/or the best available objective evidence.” 29 C.F.R. § 1630.2(r). To
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start, it is not clear from the record that Dr. Holland relied on the most current medical
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knowledge at the time of Defendant’s employment decision. During his deposition, he
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first cited a meta-analysis that was completed in 2017 and thus could not have been a
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factor in his decision. (Holland Dep. 83:7–84:20.) Dr. Holland did generally reference
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“look[ing] at [articles] in the past,” which placed the risk of rupture “from one to three
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percent.” (Id. at 87:13–88:19.) However, Dr. Holland was unable to provide any details
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when pressed for information about those articles, so it is unclear whether they also post-
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date Defendant’s employment decision. (Id. at 88:20–89:14.) Dr. Holland also indicated
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that he did not look for the other articles because the meta-analysis is “more applicable in
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this case,” which raises questions as to the appropriateness of his reliance on the other
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articles at the time of Defendant’s employment decision. (Id. at 89:1–7.)3
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Furthermore, it is not clear that Defendant took into consideration that Plaintiff
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performed substantially similar work at BNSF for almost a year without medical incident.
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“[T]his Circuit has cautioned that individualized risk assessment also requires
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consideration of relevant information about an employee’s past work history.”
18
Echazabal, 336 F.3d at 1032 (explaining that a reasonable jury could find that 20 years of
19
experience without incident was proof the plaintiff was not a direct threat), citing with
20
approval Anderson v. Little League Baseball, Inc., 794 F. Supp. 342, 345 (D. Ariz. 1992)
21
(rejecting direct threat defense and giving “great weight” to the plaintiff’s three years of
22
experience without incident). Dr. Charbonneau believes he was unaware of Plaintiff’s
23
work history, and Dr. Holland does not recall whether or not he was aware.
24
(Charbonneau Dep. 67:17–20; Holland Dep. 93:5–12.)
25
Defendant gave Plaintiff’s circumstances full and proper consideration.
26
27
28
3
Thus, it is not clear that
Although
Dr. Charbonneau questioned the relevancy of the meta-analysis to the
present case, testifying he was “not sure it has much to do with the risk going forward.”
(Charbonneau Dep. 76:20–77:4, Doc. 67-2.) Dr. Schumacher expressed the same
opinion, stating he did not “see how this would specifically relate to the issues in this
case.” (Schumacher Dep. 11:16–25, Doc. 67-7.) A reasonable jury could find that their
testimony casts doubt on the reliability of Dr. Holland’s opinions as a whole.
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1
Plaintiff’s injury-free work history is shorter than that of the plaintiffs in Echazabal and
2
Little League Baseball, a reasonable jury could still rely on it to reject Defendant’s direct
3
threat defense.
4
(iii)
Business Necessity Exception
5
At the second step, Defendant argues it is entitled to summary judgment because
6
the 1% policy is job-related and consistent with business necessity. The Court finds there
7
is a triable issue as to whether the business necessity exception applies.
8
“To successfully assert the business necessity defense to an allegedly
9
discriminatory application of a qualification standard . . . an employer bears the burden of
10
showing that the qualification standard is (1) ‘job-related,’ (2) ‘consistent with business
11
necessity,’ and (3) that ‘performance cannot be accomplished by reasonable
12
accommodation.’”
13
qualification standard is job-related if it “fairly and accurately measures the individual’s
14
actual ability to perform the essential functions of the job.” Id. at 996 (citations omitted).
15
A qualification standard is consistent with business necessity if it “substantially promotes
16
the business’s needs,” taking into account for safety-based qualification standards “the
17
magnitude of possible harm as well as the probability of occurrence.” Id. (citations,
18
brackets, and internal quotation marks omitted). Finally, an employer must show either
19
that no reasonable accommodation exists or that a proposed accommodation would
20
impose an “undue hardship” on the employer. Id. at 996–97 (citations omitted).
Bates, 511 F.3d at 995 (quoting 42 U.S.C. § 12113(a)).
A
21
Plaintiff has raised a material issue of fact as to whether the 1% policy “fairly and
22
accurately measures” his ability to perform the job safely. Id. at 996. The 1% policy is
23
not required by federal law.
24
Handbook, which applies to commercial truck drivers, and has not been adopted by the
25
Railroad Safety Advisory Committee (“RSAC”) (although Dr. Holland testified it was
26
RSAC’s intent to eventually adopt it). (Id. at 39:25–42:23; 58:10–24.) Dr. Trangle
27
questions the propriety of the 1% policy.
28
necessarily believe the 1 percent risk should be the actual rule . . . .”); Trangle Rebuttal
(Holland Dep. 60:1–8.)
It is based on the FMCSA
(Trangle Dep. 72:18–74:10 (“Not that I
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1
Report 5 (“Even if one accepts the 1% standard as reasonable, which in and of itself is
2
debatable as to utilizing this as a standard . . . .”).) Thus, Defendant has not indisputably
3
shown that the 1% policy is “job-related.”
4
B.
5
Defendant argues that Plaintiff’s claim under GINA fails as a matter of law
6
because Defendant never requested, received, or considered Plaintiff’s genetic
7
information in making its employment decisions.
8
judgment is precluded because Defendant requested medical records without a warning to
9
not disclose genetic information.
Genetic Information Nondiscrimination Act
Plaintiff argues that summary
10
Subject to exceptions, GINA generally prohibits employers from requesting
11
employees’ or applicants’ genetic information. 42 U.S.C. §§ 2000ff(2)(A)(i), 2000ff-
12
1(b). “Genetic information” means information about an individual’s genetic tests, the
13
genetic tests of the individual’s family members, and the manifestation of disease or
14
disorder in the individual’s family members. Id. § 2000ff(4)(A). An employer does not
15
violate GINA by “inadvertently request[ing] or requir[ing] family medical history” of an
16
applicant.
17
generally be considered inadvertent unless the covered entity directs the individual and/or
18
health care provider from whom it requested medical information . . . not to provide
19
genetic information.” 29 C.F.R. § 1635.8(b)(1)(i)(A). However, failure to provide such
20
notice will not prevent an employer from establishing that receipt of genetic information
21
was inadvertent “if its request for medical information was not ‘likely to result in a
22
covered entity obtaining genetic information’ (for example, where an overly broad
23
response is received in response to a tailored request for medical information).” Id. §
24
1635.8(b)(1)(i)(C).
Id. § 2000ff-1(b)(1).
“[T]he acquisition of genetic information will not
25
Plaintiff’s GINA claim appears very weak, but the Court is unable to find on the
26
present record that Defendant is entitled to summary judgment. Plaintiff has admitted
27
that Defendant did not consider genetic information in making its employment decision.
28
(DSOF ¶ 66; PSOF ¶ 66.) Plaintiff has also admitted that Defendant “made no inquiry
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1
regarding genetic information.” (DSOF ¶ 65; PSOF ¶ 65.) These admissions are not
2
fatal, however, because Plaintiff’s claim is not that Defendant asked Plaintiff for genetic
3
information or used genetic information to make the employment decision. Rather,
4
Plaintiff’s claim is that Defendant unlawfully requested medical records without
5
instructions to redact family history.
6
Defendant phrased its request as follows: “Please submit the following
7
information by November 28, 2014: [c]opy of neurologist clinic notes from 2014 office
8
visit[;] [c]opy of the 2014 MRI report.” (Doc. 60-15.) Defendant argues its request was
9
a “narrowly tailored” follow up “related to [Plaintiff’s] aneurysm history and subsequent
10
treatment—again, information which would not implicate family medical history.”4 The
11
request itself makes no mention of Plaintiff’s aneurysm, however, and thus Defendant has
12
failed to show its request was unlikely to result in the receipt of genetic information.
13
14
15
IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. 58) is
denied.
Dated this 21st day of November, 2018.
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Defendant also argues it did not receive genetic information because “the
fact that an individual family member has been diagnosed with a disease or disorder is
not considered genetic information if such information is taken into account only with
respect to the individual in which such disease or disorder occurs and not as genetic
information with respect to any other individual.” (Doc. 63 at 16 (quoting Maxwell v.
Verde Valley Ambulance Co., No. CV–13–08044–PCT–BSB, 2014 WL 4470512, at *16
(D. Ariz. Sep. 11, 2014) (internal quotation marks omitted).) Defendant’s argument is
beside the point, as Plaintiff’s claim rests on Defendant’s allegedly unlawful request.
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