Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railroad

Filing 231

MEMORANDUM AND ORDER denying 221 Motion to Compel Inspection. Signed by Magistrate Judge Kenneth G. Gale on 2/4/15. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

)
)
)
Plaintiff,
)
)
KENT DUTY,
)
)
Plaintiff-Intervenor,
)
v.
)
)
BNSF RAILWAY COMPANY,
)
)
Defendant.
)
______________________________ )

Case No.: 2:12-CV-02634-JWL-KGG

ORDER DENYING ON PLAINTIFFS’ JOINT MOTION
TO COMPEL DEFENDANT TO PERMIT INSPECTION OF PREMISES
This is an employment discrimination case brought under the Americans
with Disabilities Act. The facts of this case were summarized by this Court in its
Order (Doc. 118) on Plaintiff’s prior Joint Motion to Compel Defendant to Permit
Inspection of Premises. (Doc. 92.) That factual summary is incorporated herein by
reference. (Doc. 118, at 1-2.)
In the Court’s prior Order, the undersigned Magistrate Judge held that
Plaintiffs would be allowed to perform a Rule 34 Inspection of Defendant’s named
premises under the following restrictions:

1.

The inspection is to be completed within 45 days
of this Order.

2.

Participants may include Plaintiff Kent Duty, one
attorney for each Plaintiff, one expert, and one
camera operator. The participants will observe
work being performed from a designated area,
except for some reasonable closer access by the
expert upon request for the purpose of taking
measurements.

3.

The inspection may be performed over two days,
to be determined by the parties, lasting no more
than six (6) hours each day.

4.

The persons attending would be able to observe
Locomotive Electrician work being performed in
the ordinary course of their duties.

5.

The persons attending must comply with safety
requirements of BNSF and wear personal
protective equipment as instructed, at Plaintiffs’
expense.

6.

The persons attending must sign a release of
claims in a form satisfactory to BNSF.

7.

At all times the persons attending must stay in
designated locations and follow all BNSF safety
instructions.

8.

The persons attending may not ask substantive (as
opposed to administrative) questions of BNSF
employees.

9.

The persons attending may take photographs and
video recordings so long as they do not take
photographs or video of any person who does not
consent and so long as they agree to produce

copies of such photographs and video to BNSF.
10.

Defendant will accommodate reasonable requests
from Plaintiff’s expert to approach the work area
to make measurements of the work area and
climbing devices.

11.

The parties shall consult further to agree to such
other conditions and accommodations are
consistent with this Order.

(Doc. 118, at 8-9). Plaintiffs appeal of this ruling to the District Court was denied
by the District Judge. (Doc. 144.)
Plaintiffs now move the Court for another Order allowing an inspection, but
argue that the present motion is “substantially different from their first request.”
(Doc. 222, at 3.)
Unlike their first request for inspection, Plaintiffs do not
seek to: (1) pose any substantive questions to BNSF
employees; (2) require BNSF to identify any essential job
functions; or (3) allow on-site testing of Mr. Duty to
demonstrate that he can perform the tasks in question.
Nor do plaintiffs seek a viewing of all 105 tasks at issue,
but rather Plaintiffs now seek to observe only six specific
job tasks which were described by the BNSF
employee/witnesses in their depositions.
(Id.)
The Court does not agree that Plaintiff’s most recent inspection request is
“substantially different” than the prior request. To the contrary, the Court finds
that Plaintiffs are attempting a second bite at the same apple. Plaintiff is again

requesting that they “observe . . . specific job tasks . . . .” Like the previous
request, Plaintiffs are essentially asking the Court to order Defendants to perform a
demonstration of the listed tasks. The Court has already ruled that this is beyond
the proper scope of a Rule 34 inspection. The Court previously held that it would
not require Defendant to ensure that certain tasks be performed during an
inspection as this would constitute “more than a mere inspection.” (Doc. 118, at
6.) Simply because Plaintiff is now seeking to witness an arguably new – or a
smaller – list of tasks does not mean that Plaintiffs have raised a “substantially
different” requested inspection. Plaintiffs have presented no compelling reason to
be allowed to perform an additional – and redundant – inspection. Plaintiffs’
Motion (Doc. 221) is, therefore, DENIED.

IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 4th day of February, 2015.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge