Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railroad

Filing 31

MEMORANDUM AND ORDER - 13 Defendant's Motion to Dismiss the complaint of the Equal Employment Opportunity Commission is denied and 15 Defendant's Motion to Dismiss the Complaint of Kent Duty is granted in part and denied in part. Mr. Duty may file an amended complaint no later than April 26, 2013 to the extent he is able to cure the pleading deficiencies with respect to his retaliation claim. Signed by District Judge John W. Lungstrum on 4/5/2013. (ses)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS

Equal Employment Opportunity Commission,
Plaintiff,
Kent Duty,
Plaintiff-Intervenor,

Case No. 12-2634-JWL

v.
Burlington Northern Santa Fe Railroad,
Defendants.

MEMORANDUM & ORDER
The Equal Employment Opportunity Commission (EEOC) filed suit against defendant
Burlington Northern Santa Fe Railroad (BNSF) under the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., alleging that BNSF regarded a job applicant as disabled when it failed to
hire that applicant to work as a locomotive electrician. That job applicant, Kent Duty, has
intervened in the lawsuit, alleging the same claim set forth by the EEOC and additional claims
under the ADA—namely, that BNSF failed to hire him based on an actual disability and/or in
retaliation for engaging in protected activities and failed to reasonably accommodate his
disability.
BNSF has now moved to dismiss both the EEOC’s complaint and the intervenor
complaint on the grounds that the allegations therein are insufficient to comport with the
requirements of Federal Rule of Civil Procedure 8 as interpreted by the Supreme Court in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
With respect to the “regarded as” claim, BNSF contends that neither the EEOC nor Mr. Duty
has sufficiently pleaded that BNSF regarded Mr. Duty as having an impairment that
substantially limited his ability to work or that Mr. Duty could have performed the essential
functions of the job with or without reasonable accommodation. With respect to the actual
disability claim, BNSF contends that Mr. Duty has not sufficiently pleaded that his impairment
substantially limits his ability to perform manual tasks. Finally, with respect to the retaliation
claim, BNSF contends that Mr. Duty’s intervenor complaint contains no facts suggesting that
any decisionmaker might have knowledge of Mr. Duty’s protected activities and no facts
suggesting any causation between Mr. Duty’s protected activities and BNSF’s failure to hire
him.1

Background
The following well-pleaded factual allegations, taken from the EEOC’s complaint and the
intervenor complaint, are accepted as true for purposes of BNSF’s motions.2

Plaintiff-

Intervenor Kent Duty has physical impairments to his right hand and wrist as a result of injuries
he sustained in a car accident at sixteen years of age, over twenty years ago. As a result of this

1

BNSF initially moved to dismiss any separate claim asserted by Mr. Duty that BNSF failed to
reasonably accommodate his disability, construing that claim as asserting the denial of an
accommodation necessary to participate in the interview or hiring process. After Mr. Duty
clarified that the claim is based on an alleged failure to reasonably accommodate Mr. Duty’s
ability to perform the job in question, BNSF withdrew that portion of its motion.
2
When necessary in the context of the parties’ arguments, the court will clarify what allegations
are contained in the EEOC’s complaint and what allegations are contained in the intervenor
complaint.
2

impairment, Mr. Duty has limited grip strength in his right hand and limitation in the range of
motion in his right hand and wrist. In July 2008, Mr. Duty applied for the open position of
Locomotive Electrician at BNSF’s Argentine facility in Kansas City, Kansas. In August 2008,
BNSF responded to Mr. Duty’s job inquiry and asked him to participate in a “Realistic Job
Preview & Testing Session” and to interview for the position. Mr. Duty successfully completed
the testing and interview process and, on August 19, 2008, BNSF extended a conditional offer
of employment to Mr. Duty, subject to a drug screen, background check, physical examination,
medical evaluation and medical history questionnaire.
Mr. Duty completed the medical questionnaire and a medical evaluation administered by
a third-party. On September 22, 2008, Mr. Duty received an e-mail from the BNSF Medical
Review Department notifying him that the third-party administrator had referred Mr. Duty’s
medical evaluation to the BNSF Medical Department for further review. The e-mail advised
Mr. Duty that “BNSF Medical Review” was not able to determine Mr. Duty’s medical
qualification for the Locomotive Electrician position due to “uncertain functional abilities of the
right hand/wrist” and that Mr. Duty could be reconsidered if he supplied a current Functional
Capacity Evaluation (FCE) of his right hand and arm.

The e-mail provided a detailed

description of the information needed by BNSF Medical, including full range of motion
measurements; pinch grip, palmer grip and fingertip dexterity assessments; and grip strength
using Jamar dynamometer.
Upon receiving the e-mail, Mr. Duty asked Tamala Cleaver in BNSF’s Human Resources
department to provide him with a complete job description for the Locomotive Electrician
position. BNSF never provided the job description. In early October 2008, Mr. Duty e-mailed
3

BNSF’s Central Staffing Human Resources department to confirm that additional information
was necessary despite the fact that he had been working successfully in the electrical
maintenance field since 1992. The following day, October 7, 2008, Mr. Duty received a
response

from

an

unidentified

person

at

BNSF

(from

the

e-mail

address

“[e-mail]”) which advised Mr. Duty that Central Staffing Human Resources
did “not get involved in the Medical Review process,” that he needed to follow the instructions
provided to him by Medical Review, and that they could not override or change Medical
Review’s determination that additional information was needed.
Mr. Duty responded to that e-mail by expressing concern that his disability could
“discount his options as a candidate” and that BNSF was not operating “within the description
of an EOE employer.”

Mr. Duty advised Central Staffing that he could not provide an

evaluation reflecting a fully functional right hand and asked for “what avenues” he might take to
move the application process forward. On October 10, 2008, Mr. Duty received an e-mail
(again from an unidentified person at the [e-mail] address) reiterating that
Central Staffing could “not get involved in the pre-employment medical process,” that he
needed to contact “BNSF Medical” regarding the decision, and that Central Staffing would not
respond to e-mails at that inbox regarding the medical process.
In early December 2008, Mr. Duty obtained a FCE at his expense and provided it to
BNSF. The evaluation concluded that Mr. Duty had minimal if any voluntary control of his
right thumb, index finger, middle finger or ring finger but that he demonstrated the ability to
utilize a functional hook grip to handle materials with his right hand. On December 29, 2008,
Mr. Duty received an email advising him that the “BNSF Medical Officer has determined that
4

you are not medically qualified for [the] Locomotive Electrician position due to significant risks
associated with lack of grip strength in your right hand, including safety concerns such as your
inability to support your body weight with one hand during mandatory three point contact when
climbing on and off locomotives.” BNSF, then, revoked the conditional offer of employment
that it had extended to Mr. Duty because he could not meet BNSF’s requirement that he have
three points of contact when ascending and descending ladders and he could not grip tools
firmly with both hands.

Pleading Standards
Defendants’ motions to dismiss are based on Federal Rule of Civil Procedure 12(b)(6).
In analyzing such motions, the court accepts as true “all well-pleaded factual allegations in the
complaint and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortgage
Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citation omitted). Under
Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Burnett, 706 F.3d at 1235 (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
According to the Tenth Circuit, “[t]wo working principles underlie this standard. ‘First,
the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.’” Id. (quoting Iqbal, 556 U.S. at 678). “Thus, mere ‘labels
and conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not
5

suffice; a plaintiff must offer specific factual allegations to support each claim.” Id. (citations
and quotations omitted). “Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Id. (quoting Iqbal, 556 U.S. at 679). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at
678). “The complaint must offer sufficient factual allegations ‘to raise a right to relief above the
speculative level.’” Id. (quoting Twombly, 550 U.S. at 555). Although “[s]pecific facts are not
necessary” to comply with Rule 8(a)(2), the complaint must “‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Id. (quoting Erickson v. Pardus,
551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555)) .
“Determining whether a complaint states a plausible claim for relief is ‘a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.’”
Id. at 1236 (quoting Iqbal, 556 U.S. at 679). “This contextual approach means comparing the
pleading with the elements of the cause(s) of action.” Id. (quoting Khalik v. United Air Lines,
671 F.3d 1188, 1193 (10th Cir. 2012)). While a plaintiff “is not required to set forth a prima
facie case for each element, [he or] she is required to set forth plausible claims animating the
elements” of each cause of action. Id. (quotations omitted). “Pleadings that do not allow for at
least a ‘reasonable inference’ of the legally relevant facts are insufficient.” Id. (citing Iqbal, 556
U.S. at 678).

Regarded As Disabled

6

Both the EEOC and Mr. Duty allege in their complaints that BNSF unlawfully regarded
Mr. Duty as disabled due to his physical impairment. To prevail on such a claim, the parties
must establish that BNSF treated Mr. Duty as having an impairment that substantially limits one
or more major life activities. See Dillon v. Mountain Coal Co., 569 F.3d 1215, 1218 (10th Cir.
2009).3 Both the EEOC and Mr. Duty allege in their complaints that BNSF regarded Mr. Duty’s
physical impairment as substantially limiting in the major life activity of working. To prevail on
a claim that BNSF regarded Mr. Duty as substantially limited in the major life activity of
working, the EEOC and Mr. Duty must ultimately demonstrate that BNSF regarded Mr. Duty as
significantly restricted in performing either a class of jobs or a broad range of jobs in various
classes. See id.
BNSF moves to dismiss the parties “regarded as” claims first on the grounds that neither
the EEOC nor Mr. Duty has sufficiently pleaded that BNSF regarded Mr. Duty as having an
impairment that substantially limited his ability to work because they do not allege that BNSF
regarded Mr. Duty as substantially limited in his ability to perform a broad range of jobs or a
class of jobs. According to BNSF, the complaints allege only that BNSF perceived Mr. Duty as
unable to work a single job—the Locomotive Electrician position at BNSF. See Sutton v.
United Air Lines, Inc., 527 U.S. 471, 493 (1999) (dismissal of “regarded as” claim appropriate
where plaintiffs alleged only that employer regarded vision impairment as precluding them from
holding positions as global airline pilots; because that position is a single job, the allegation does
3

The parties agree that the standards of the ADA Amendments Act of 2008 do not apply to this
case such that the court is required to apply the law as it stood prior to the enactment of the
ADAAA. That issue, however, is largely irrelevant at this stage where the court is asked to
analyze the appropriate pleading standards for an ADA case rather than any particular
substantive standards under the ADA.
7

not support the claim that the employer regarded plaintiffs as having a substantially limiting
impairment).
Unlike the plaintiffs in Sutton, however, the EEOC and Mr. Duty do not allege that BNSF
regarded Mr. Duty’s impairment as precluding him only from holding the single job of
Locomotive Electrician at BNSF. They expressly allege, consistent with Sutton, that BNSF
believed that Mr. Duty could not safely perform any jobs involving the use of tools and ladders
such that BNSF regarded him as substantially limited in the major life activity of working.
While BNSF acknowledges those allegations, it contends that the complaints lack any factual
support for those allegations and it is not plausible that BNSF, in evaluating Mr. Duty’s
application for a specific position at BNSF, gave any thought whatsoever to Mr. Duty’s general
employability at BNSF or elsewhere. In other words, according to BNSF, the parties have not
and cannot plead that BNSF considered Mr. Duty’s qualification for any job other than the
specific job for which he applied at BNSF.
While the court agrees that the EEOC and Mr. Duty have a difficult task ahead of them in
terms of proving their claim, see Dillon, 569 F.3d at 1219 (because this type of claim rests
heavily on the employer’s state of mind, it is “extraordinarily difficult” to prove; and the task is
more difficult because it is “safe to assume that employers do not regularly consider the panoply
of other jobs their employees could perform”), the court believes that the allegations in the
respective complaints are sufficient to permit a plausible inference that BNSF regarded MR.
Duty as substantially limited in the major life activity of working. It is plausible that the EEOC
and Mr. Duty will be able to prove that an inability to use tools and to climb ladders (or to
firmly grip tools and to comply with the three-point contact safety rule, depending on what the
8

discovery process reveals) constitutes a substantial limitation on the ability to work in a class of
jobs or a broad range of jobs in various classes. See Chicago Regional Council of Carpenters v.
Thorne Assocs., Inc., ___ F. Supp. 2d ___, 2012 WL 4458392, at *8 (N.D. Ill. Sept. 25, 2012)
(declining to dismiss “regarded as” claim where plaintiffs alleged that employer construed
lifting restrictions as disabling condition and that such restrictions were not unique to
employer’s jobs).
BNSF’s second argument in support of dismissal is that neither the EEOC nor Mr. Duty
has sufficiently pleaded that Mr. Duty could have performed the essential functions of the job
with or without reasonable accommodation. See 42 U.S.C. §§ 12112(a); 12111(8). While
BNSF concedes that the EEOC and Mr. Duty have pled that he was qualified to perform the
essential functions of the locomotive electrician position, BNSF contends that neither the EEOC
nor Mr. Duty has pled sufficient facts from which the court could plausibly conclude that Mr.
Duty could perform certain functions specific to the locomotive electrician position—namely,
the ability to maintain three-point contact when ascending and descending locomotive ladders
and to maintain a firm grip on locomotive-related tools. According to BNSF, then, the parties’
allegations that Mr. Duty was employed as an industrial maintenance electrical technician for 16
years prior to his application with BNSF is irrelevant in the absence of facts reflecting an ability
to perform the specific tasks at issue here.
For several reasons, the court is not persuaded by BNSF’s argument. Both the EEOC and
Mr. Duty have expressly pled that Mr. Duty could climb ladders safely and use tools safely and
that he was qualified to perform the essential functions of the locomotive electrician position.
They allege that Mr. Duty successfully completed BNSF’s “Realistic Job Preview and Testing
9

Session” and that he received a conditional offer of employment as a result. Accepting these
allegations as true, it is certainly plausible that Mr. Duty was qualified to perform the essential
functions of the locomotive electrician position with or without reasonable accommodation.
Moreover, BNSF has not directed the court to any case law requiring the level of specificity that
BNSF would require at this stage and it appears that courts have rejected that approach. See
Blackburn v. Trustees of Guilford Tech. Comm. College, 822 F. Supp. 2d 539, 551 (M.D.N.C.
2011) (denying Rule 12(b)(6) motion where plaintiff alleged that she could perform the essential
functions of the position but did not identify the specific essential functions of the position);
Kirbyson v. Tesoro Ref. & Mktg. Co., 2010 WL 761054, at *6 (N.D. Cal. Mar. 2, 2010)
(rejecting defendant’s argument that the plaintiff needed to plead with greater specificity the
essential functions of the job that he sought); Imbody v. C & R Plating Corp., 2009 WL 196251,
at *1-4 (N.D. Ind. Jan. 23, 2009) (rejecting argument that plaintiff had not sufficiently pled
enough facts to establish that he could perform the essential functions of the job).
Finally, the approach espoused by BNSF would short-circuit the jury’s role in an ADA
case (or the court on summary judgment) to determine, as a factual matter, whether the job
requirements relied upon by BNSF for its refusal to hire Mr. Duty are “essential functions” of
the locomotive electrician position. See Davidson v. America Online, Inc., 337 F.3d 1179, 1191
(10th Cir. 2003) (“Determining whether a particular function is essential is a factual inquiry.”).
BNSF’s motion presumes that maintaining three-point contact on ladders and maintaining a firm
grip on tools are essential functions of the job, such that if Mr. Duty does not adequately plead
his ability to perform them, his case must be dismissed. But discovery may yet reveal that these
job requirements are not “essential” or that an accommodation exists that would permit Mr.
10

Duty to perform them in any event. For this additional reason, then, it is entirely inappropriate
to dismiss this claim based on an asserted lack of specificity about Mr. Duty’s ability to perform
these specific tasks.
For the foregoing reasons, the court denies BNSF’s motions to dismiss the EEOC’s and
Mr. Duty’s “regarded as” claims.

Actual Disability
In his intervenor complaint, Mr. Duty alleges that he has an actual disability and that
BNSF discriminated against him on the basis of that disability. To prove that he is disabled
under the ADA, Mr. Duty must have a recognized impairment; identify one or more appropriate
major life activities; and show that the impairment substantially limited one or more of those
activities. Sanchez v. Vilsack, 695 F.3d 1174, 1178 (10th Cir. 2012). Mr. Duty alleges that he
has physical impairments to his right hand and wrist that substantially limit his ability to
perform manual tasks “within the meaning of the ADA and its accompanying regulations.” In
order to be substantially limited in performing manual tasks, an individual must have an
impairment that prevents or severely restricts the individual from doing activities that are of
central importance to most people’s daily lives,” such as household chores, bathing and brushing
one’s teeth. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198, 202 (2002). It is
not enough that the impairment render an individual unable to perform the tasks associated with
a specific job. Id. at 200-01.
BNSF moves to dismiss Mr. Duty’s actual disability claim on the grounds that Mr. Duty
has not sufficiently pleaded that his impairment substantially limits his ability to perform
11

manual tasks. According to BNSF, the court must disregard Mr. Duty’s legal conclusion that
his impairment is substantially limited “within the meaning of the ADA and its accompanying
regulations” and, then, is left with no allegations whatsoever suggesting how Mr. Duty’s
impairment limits his ability to perform manual tasks.

Mr. Duty responds that BNSF is

attempting to hold him to a heightened pleading standard that is not required in the Tenth Circuit
and that he is not even required to plead the specific major life activity that is affected by his
impairment, let alone how that impairment affects the major life activity. He further contends
that the detailed clinical description of his impairment set forth in the complaint is sufficient to
permit an inference that his ability to perform any manual task is severely restricted.
The Tenth Circuit has not addressed whether and to what extent a plaintiff must describe
how an alleged impairment substantially limits the major life activity identified in the complaint.
Prior to Iqbal and Twombly, however, the Tenth Circuit clearly indicated that a plaintiff was not
required to enumerate in his or her complaint the major life activities in which he or she is
substantially limited, which suggests, of course, that a plaintiff need not describe how an
impairment substantially limits a major life activity. See Davoll v. Webb, 194 F.3d 1116, 1134
(10th Cir. 1999) (when instructing jury, district court correctly declined to limit plaintiff to the
major life activity of working and properly instructed jury on other activities where plaintiff did
not enumerate specific life activities in complaint and pretrial record and trial transcript
contained considerable evidence of substantial limitations in various activities).
Since Twombly and Iqbal, the only Circuit Court of Appeals that has addressed the issue
squarely is the Third Circuit in Fowler v. UPMC Shadyside, 578 F.3d 203 (3rd Cir. 2009). In
Fowler, the Third Circuit considered post-Iqbal standards for pleading violations of the
12

Rehabilitation Act and held that the plaintiff had sufficiently pleaded her Rehabilitation Act
claim primarily because she had identified an impairment and alleged a limitation to sedentary
work, which “plausibly suggest[ed] that she might be substantially limited in the major life
activity of working.” Id. at 213.4 Rejecting the district court’s conclusion that the plaintiff
failed to sufficiently plead disability, the Circuit explained:
Fowler is not required, at this early pleading stage, to go into particulars about the
life activity affected by her alleged disability or detail the nature of her substantial
limitations. Her complaint identifies an impairment, of which PUMC allegedly
was aware and alleges that such impairment constitutes a disability under the
Rehabilitation Act. Furthermore, her alleged limitation to sedentary work
plausibly suggests that she might be substantially limited in the major life activity
of working. Of course, Fowler must ultimately prove that she is substantially
limited in a recognized major life activity to prevail on her claim. At the pleading
stage, however, Fowler’s allegation regarding disability is sufficient. This is so
even after Twombly and Iqbal.
Id. at 213-14 (citations omitted); accord Jaros v. Illinois Dept. of Corrections, 684 F.3d 667,
672 (7th Cir. 2012) (“Plausibility is not an exacting standard,” and the plaintiff satisfied that
standard by alleging that an impairment to his hip made it difficult to walk and stand).
While many Circuit Courts of Appeals have held that a plaintiff must identify a major life
activity to survive a Rule 12(b)(6) motion, that conclusion is not inconsistent with the Third
Circuit’s approach in Fowler and, in any event, Mr. Duty’s complaint complies with those
decisions. See Mora v. University of Texas Southwestern Medical Center, 469 Fed. Appx. 295,
297 (5th Cir. 2012) (affirming dismissal of ADA claim where plaintiff’s failure to specify which
of her “life activities” is substantially limited was “fatal to stating a valid claim for relief”);

4

The substantive standards for determining whether an individual is disabled are the same under
the Rehabilitation Act and the ADA. Sanchez v. Vilsack, 695 F.3d 1174, 1178 n.2 (10th Cir.
2012).
13

Chapman v. U.S. Postal Service, 442 Fed. Appx. 480, 485 (11th Cir. 2011) (affirming dismissal
of ADA claim where plaintiff “did not specify whether she had a physical or mental impairment,
what the disability was, or how it impaired a major life activity”);5 Baptista v. Hartford Bd. of
Educ., 427 Fed. Appx. 39, 42 (2nd Cir. 2011) (affirming dismissal of ADA claim where the
plaintiff did not identify any major life activity that was allegedly affected by his impairment;
how his impairment affected a major life activity; of whether the Board was aware of his alleged
disability); Hale v. King, 642 F3d 492, 500 (5th Cir. 2011) (affirming dismissal of ADA claim
where the plaintiff failed to allege that impairments substantially limited him in the performance
of a major life activity).
In light of its decision in Davoll v. Webb, the court believes that the Tenth Circuit, if
faced with the issue, would follow the approach taken by the Third Circuit in Fowler and would
conclude that Mr. Duty’s intervenor complaint sufficiently pleads a disability discrimination
claim based on an actual disability. Mr. Duty, in his complaint, has identified a physical
impairment to his right hand and wrist; has alleged that the impairment substantially limits his
ability to perform manual tasks; and has included a detailed clinical description of his
impairment that plausibly suggests that Mr. Duty is substantially limited in his ability to perform
manual tasks. Requiring more detail from Mr. Duty concerning the extent of his limitations on
his ability to perform manual tasks would, in the court’s view, escalate the “plausibility
standard” of Twombly and Iqbal to a level that the Tenth Circuit has rejected. See Khalik v.
United Air Lines, 671 F.3d 1188, 1191-92 (10th Cir. 2012) (rejected heightened pleading
5

The court does not read the Chapman decision as requiring a plaintiff to identify or describe
“how” an impairment affects a specific major life activity but that the combination of defects in
the plaintiff’s complaint simply left no basis for a claim.
14

standard and emphasizing that “specific facts are not necessary” and that Twombly and Iqbal “do
not require that the complaint include all facts necessary to carry the plaintiff’s burden”.)
BNSF’s motion to dismiss this claim is denied.6

Retaliation
The ADA makes it unlawful for an employer to retaliate against an individual “because
such individual has opposed any act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). To state a prima facie case of
retaliation under the ADA, a plaintiff must show that he or she engaged in protected opposition
to discrimination; that a reasonable employee would have found the challenged action materially
adverse; and that a causal connection existed between the protected activity and the materially
adverse action. EEOC v. Picture People, Inc., 684 F.3d 981, 988 (10th Cir. 2012).
In his intervenor complaint, Mr. Duty alleges that he engaged in protected opposition to
discrimination when he e-mailed “the Central Staffing HR” at defendant on October 7, 2008 to
express concerns that his disability could adversely affect his options as a job candidate and to
question whether defendant was “operating within the description of an EOE employer.” In
response to his complaint, Mr. Duty alleges that he received an e-mail from an unidentified
person from the email account “[e-mail] which stated:

In its submissions, BNSF contends that Mr. Duty’s impairment clearly does not substantially
limit his ability to perform manual tasks because Mr. Duty, as alleged in his complaint,
successfully uses a functional hook grip to mitigate his impairment. This, however, is an
evidentiary inquiry more suitable for summary judgment.
6

15

Mr. Duty
I cannot get involved [in] the pre-employment medical process. Please follow the
instruction you were provided below to contact BNSF Medical regarding their
decision. We will NOT respond to emails at this inbox regarding the medical
process.
According to Mr. Duty’s complaint, in late December 2008, he received an e-mail advising him
that the BNSF Medical Officer determined that Mr. Duty was not medically qualified for the
Locomotive Electrician position and that BNSF was withdrawing its conditional offer of
employment. According to Mr. Duty, defendant retaliated against him when it refused to hire
him, refused to provide him reasonable accommodations so that he could perform the job and
refused to provide him with a job description (which he had requested from the HR department
on September 22, 2008).
In its motion to dismiss, defendant contends that Mr. Duty’s intervenor complaint does
not sufficiently state a plausible claim for retaliation because Mr. Duty fails to allege any facts
from which the court could draw the inference that a nexus exists between his complaints to HR
and either the Medical Officer’s determination that he was not qualified for the position or
BNSF’s decision to withdraw the conditional offer of employment. Defendant further contends
that the complaint is devoid of facts permitting the inference that the Medical Officer or any
other decisionmaker even had any knowledge about Mr. Duty’s protected activities. The court
agrees that the intervenor complaint is deficient in these respects, but will permit Mr. Duty to
file an amended complaint to cure these deficiencies to the extent he is able to do so.
In concluding that the intervenor complaint fails to state a claim for relief for retaliation,
the court is guided by the Tenth Circuit’s decision in Khalik v. United Air Lines, 671 F.3d 1188
16

(10th Cir. 2012). In Khalik, the Tenth Circuit affirmed the Rule 12(b)(6) dismissal of the
plaintiff’s Title VII claims, including a claim for retaliation. In that case, the plaintiff had
alleged that she performed her job well; that she complained internally about discrimination on
the basis of her race, national origin and ethnicity; and that she was terminated thereafter. See
id. at 1193-94.

The Circuit concluded that the plaintiff’s complaint lacked specific facts

necessary to satisfy the plausibility requirement. See id. at 1194. With respect to the plaintiff’s
retaliation claim, the Circuit explained:
There is no context for when Plaintiff complained, or to whom. . . . There is no
nexus between the person(s) to whom she complained and the person who fired
her. Indeed, there is nothing other than sheer speculation to link the . . .
termination to a . . . retaliatory motive.
Id. Mr. Duty’s complaint offers some of the detail that was missing in Khalik, such as when he
complained and to whom he complained. But like the complaint that was found deficient in
Khalik, Mr. Duty offers no facts showing a nexus between the person to whom he complained
(an unidentified person responding to an email he sent to Central Staffing HR) and the medical
personnel who determined that he was not qualified for the position. Without any allegations
concerning causation, such as knowledge on the part of the decisionmaker or adverse actions
occurring contemporaneously with Mr. Duty’s complaints, the court is left to speculate as to
whether BNSF’s decisions were retaliatory.
Other courts are in accord with the Khalik decision on the issue of pleading causation in
connection with a retaliation claim, routinely granting motions to dismiss on plausibility
grounds. See Swanson v. Baker & McKenzie, LLP, 2013 WL 1087579, at *5 (N.D. Ill. Mar. 14,
2013) (dismissing retaliation claim where plaintiff did not allege knowledge of complaints on
17

behalf of relevant actors involved in alleged retaliation); Mandavia v. Columbia Univ., 2012 WL
6186828, at *13 (S.D.N.Y. Dec. 12, 2012) (granting motion to dismiss where “Plaintiff does not
allege any specific facts that could give rise to a plausible inference that [employer’s motive]
was retaliatory. To the contrary, Plaintiff appears to offer little more than a highly speculative
argument that because Columbia’s . . . action occurred later in time than his first EEOC
Complaint, the Court should infer retaliatory motive. This argument does not suffice.”); Clarke
v. Petersburg City Public School, 2012 WL 5286957, at *4 (E.D. Va. Oct. 24, 2012) (dismissing
retaliation claim where plaintiff failed to allege that decisionmaker had knowledge of protected
activity); Carlson v. CSX Transp., Inc., 2012 WL 1657117, at *6 (S.D. Ind. May 10, 2012)
(dismissing claim where plaintiff alleged only that she engaged in protected activity and
suffered adverse employment actions months later); Enadeghe v. Ryla Teleservices, Inc., 2010
WL 481210, at *9 (N.D. Ga. Feb. 3, 2010) (dismissing retaliation claim where plaintiff failed to
allege that decisionmaker had knowledge of protected activity).
Plaintiff’s reliance on this court’s opinion in Bell v. Turner Recreation Commission, 2009
WL 2914057 (D. Kan. Sept. 8, 2009) is unavailing. In Bell, the court denied a Rule 12(b)(6)
motion to dismiss a Title VII retaliation claim, concluding that it was “difficult to imagine what
more the court could require of plaintiff in terms of pleading her claims with specificity.” Id. at
*3. However, the plaintiff had pleaded that she complained to both her supervisor Ms. Todd and
to her supervisor’s supervisor and that she was suspended less than 90 minutes after delivering
her written complaint. She further alleged that she was discharged on the day she returned from
her suspension by the very supervisor to whom she had complained. Thus, the plaintiff’s
allegations concerning both the timing of the adverse actions and the fact that the decisionmaker
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had received the plaintiff’s complaints were more than sufficient to permit an inference that the
employer had retaliated against the plaintiff.
By contrast, Mr. Duty has not alleged any facts from which the court may infer that any
decisionmaker with respect to plaintiff’s application for employment had any knowledge of Mr.
Duty’s protected activity such that the decision to deny employment might plausibly be based
on a retaliatory motive. Similarly, there are no facts in the intervenor complaint from which the
court could draw the inference that a nexus exists between his complaints to HR and either the
Medical Officer’s determination that he was not qualified for the position or BNSF’s decision to
withdraw the conditional offer of employment. If the adverse actions had occurred on the heels
of Mr. Duty’s complaint, then the court could likely infer the requisite causation. But based on
Mr. Duty’s allegation that the relevant decisions occurred nearly 3 months after he complained,
and the complaint’s suggestion that “Central Staffing HR” and “BNSF Medical” operate entirely
distinctly from one another, plaintiff must plead additional allegations to raise the inference that
BNSF failed to hire him in retaliation for his complaints. This is particularly true in light of the
allegation that “BNSF Medical Review” initiated the medical review process, expressed concern
about Mr. Duty’s ability to perform the functions of the position, and sought additional
information from Mr. Duty before he lodged a complaint with Central Staffing.7

7

While it may be reasonable to infer causation between Mr. Duty’s complaints to Central
Staffing HR and that department’s alleged refusal to provide a job description to Mr. Duty, Mr.
Duty has nonetheless failed to state a plausible retaliation claim with respect to BNSF’s failure
to provide a job description because the complaint is devoid of allegations that BNSF’s refusal
to provide the job description would be materially adverse to a reasonable person. Mr. Duty
alleges in his complaint that he needed the job description “to assist him in the requested
information Defendant BNSF expected Plaintiff to provide,” but this allegation is contradicted
by other allegations in the complaint that BNSF gave him a detailed account of the medical
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IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion to
dismiss the complaint of the Equal Employment Opportunity Commission (doc. 13) is denied
and defendant’s motion to dismiss the complaint of Kent Duty (doc. 15) is granted in part and
denied in part. Mr. Duty may file an amended complaint no later than April 26, 2013 to the
extent he is able to cure the pleading deficiencies with respect to his retaliation claim

IT IS SO ORDERED.

Dated this 5th day of April, 2013, at Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

information he needed to provide to them. The information requested by BNSF may or may not
comport with the actual job description for the position, but that is a separate issue from whether
Mr. Duty actually needed the job description to help him figure out what information to provide
to BNSF. To the extent he is able to do so, Mr. Duty may cure these deficiencies if and when he
files an amended complaint.
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