Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railroad
MEMORANDUM AND ORDER denying 47 Defendant's Motion for Partial Dismissal of Kent Duty's First Amended Intervenor Complaint. Signed by District Judge John W. Lungstrum on 8/16/2013. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Equal Employment Opportunity Commission,
Case No. 12-2634-JWL
Burlington Northern Santa Fe Railroad,
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,
intervened in the lawsuit, alleging the same “regarded as” 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.
Previously, BNSF moved to dismiss the “regarded as” claims, the actual disability claim
and the retaliation claim on the grounds that the allegations underlying those claims were
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). The court denied BNSF’s motion with respect to the “regarded as”
claims and the actual disability claim, finding that the complaints satisfied the pleading
standards of Twombly and Iqbal. With respect to Mr. Duty’s retaliation claim, the court granted
BNSF’s motion but provided Mr. Duty an opportunity to file an amended complaint to the
extent he was able to allege specific facts necessary to satisfy the plausibility requirement.
Mr. Duty has now filed an amended complaint in which he alleges additional facts
concerning his retaliation claim as well as an additional “regarded as” claim. BNSF moves to
dismiss both claims. As will be explained, the motion is denied.
The following well-pleaded factual allegations, taken from Mr. Duty’s amended
intervenor complaint, are accepted as true for purposes of BNSF’s motion. 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
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
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
“BNSF.Newhire@bnsf.com”) 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 BNSF.Newhire@bnsf.com 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.
Thereafter, Mr. Duty made direct contact with BNSF’s Medical Department in Fort
Worth, Texas to explore his options aside from simply repeating the testing in which Mr. Duty
had already participated. During a phone conversation with an unidentified person in the
Medical Department, Mr. Duty explained the nature of his impairments, his work experience,
his communications with human resources and the status of his job application and post-offer
medical examination. My Duty then inquired about the need for further testing as set forth in
the September 22, 2008 email from the Medical Review Department. The person to whom Mr.
Duty spoke excused herself, explaining that she would need to speak to someone about Mr.
Duty’s inquiries, and then returned to tell Mr. Duty that she could not assist him other than to
tell him to follow the instructions in the September 22, 2008 email requiring Mr. Duty to obtain
a complete report to allow the medical department to evaluate his condition again.
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
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.
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
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
In his amended intervenor complaint, Mr. Duty alleges that BNSF unlawfully regarded
his physical impairment as substantially limiting his ability to perform manual tasks. To prevail
on a claim that BNSF regarded Mr. Duty as substantially limited in the major life activity of
performing manual tasks, Mr. Duty must demonstrate that BNSF regarded Mr. Duty as
significantly restricted from doing activities that are of central importance to most people’s daily
lives.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198, 202 (2002). BNSF
moves to dismiss this claim on the grounds that Mr. Duty has not alleged that BNSF regarded
Mr. Duty as substantially limited in his ability to perform activities that are of central
importance to most people’s daily lives but rather has alleged only that BNSF regarded him as
substantially limited in his ability to grip tools with both hands and his ability to maintain a
three-point contact while climbing ladders. Relying primarily on the Eighth Circuit’s decision
in Breitkreutz v. Cambrex Charles City, Inc., 450 F.3d 780 (8th Cir. 2006), BNSF contends that
dismissal of the claim is appropriate in the absence of an allegation that BNSF regarded Mr.
Duty as unable to perform tasks central to most people’s daily lives.
In Breitkreutz, the plaintiff alleged that his former employer regarded him as substantially
limited in the major life activities of working and lifting. Id. at 783. The district court granted
summary judgment on the plaintiff’s claims on the grounds that the evidence did not
demonstrate that the employer regarded the plaintiff as someone with an impairment that
substantially limited a major life activity and demonstrate only that the employer regarded the
plaintiff as someone who could not perform the essential functions of the particular job. See id.
The Eighth Circuit affirmed the district court. Id. at 784. With respect to the plaintiff’s claim
that the employer regarded him as substantially limited in the major life activity of lifting, the
[W]e have noted a restriction on lifting alone is not a major life limitation. Rather
than viewing lifting as a major life activity in its own right, it is more accurate to
say that it is part of a set of basic motor functions that together represent a major
life activity. A limitation on lifting together with limitations on other basic motor
functions may create a triable issue of disability if in the aggregate they prevent or
severely restrict the plaintiff from doing the set of manual tasks that are of central
importance to most people’s daily lives. Breitkreutz does not allege Cambrex
perceived him as unable “to do the manual tasks central to most people’s lives”
where the type of evidence most relevant to establishing a substantial limitation in
the major life activity of performing manual tasks, includes, for example, an
individual's ability to do household chores, bathe, brush one's teeth, prepare meals,
do laundry, etc. Regarding an employee as having a limitation that is not itself a
disability cannot constitute a perception of disability.
Id. (citations, quotations and alterations omitted). Quite clearly, Breitkreutz does not suggest
that the dismissal of plaintiff’s complaint is warranted. As a review of the district court’s
decision at the summary judgment stage under the “much more stringent” Rule 56 standard,
Breitkreutz has no bearing on the pertinent pleading standards for a “regarded as” claim under
Rule 12(b)(6). See Fowler, 578 F.3d at 213; Twombly, 550 U.S. at 556 (“[A] well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts alleged is
improbable and that a recovery is very remote and unlikely.”).
BNSF’s reliance on Breitkreutz suggests that the real crux of BNSF’s argument is that
Mr. Duty will simply never be able to prove that BNSF regarded him as substantially limited in
performing tasks central to most people’s daily lives. To be sure, Mr. Duty’s evidentiary burden
will be difficult to satisfy as it is unlikely that BNSF considered the impact of Mr. Duty’s
impairment beyond the specific job for which he applied. See Dillon v. Mountain Coal Co., 569
F.3d 1215, 1219 (10th Cir. 2009) (discussing “extraordinarily difficult” task of proving
“regarded as” claim). Nonetheless, the court’s focus at this stage is not on whether Mr. Duty
will ultimately be able to prove his claim but on whether he has stated a plausible claim for
Focusing on the pleading standards of Iqbal and Twombly, this court has already
determined that Mr. Duty is not required to provide the degree of factual specificity urged by
BNSF. In resolving BNSF’s earlier motion to dismiss Mr. Duty’s actual disability claim—a
claim that is similarly based on Mr. Duty’s alleged substantial limitation on his ability to
perform manual tasks—the court concluded that the Tenth Circuit would follow the approach
highlighted by the Third Circuit in Fowler v. UPMC Shadyside, 578 F.3d 203 (3rd Cir. 2009),
wherein the Circuit squarely addressed post-Iqbal pleading standards in the context of a
disability discrimination claim. As this court explained previously, the Third Circuit in Fowler
held that a plaintiff is not required, at the pleading stage, “to go into particulars about the life
activity affected by her alleged disability or detail the nature of her substantial limitations.” Id.
at 213. While a plaintiff certainly must ultimately prove that he or she is substantially limited
(or regarded as substantially limited) in a recognized major life activity to prevail on his or her
claim, that plaintiff satisfies Iqbal and Twombly at the pleading stage by identifying an
impairment of which the defendant was allegedly aware, alleging that the impairment constitutes
a disability under the pertinent statute, and alleging facts that plausibly suggest a substantial
limitation in a major life activity. See id.
The court sees no reason to vary from Fowler which, in fact, concerned a “regarded as”
claim. See id. at 212 (plaintiff alleged that she was injured at work and that employer regarded
her as disabled). The court believes, then, that the Tenth Circuit would find that Mr. Duty’s
amended intervenor complaint sufficiently pleads a plausible disability discrimination claim
based on a perceived disability. Mr. Duty has identified a physical impairment to his right hand
and wrist, he has alleged that BNSF knew about that impairment, and that BNSF denied his
employment application based on that impairment. He has further alleged that BNSF regarded
that impairment as substantially limiting his ability to perform manual tasks. While he has not
specifically alleged that BNSF regarded him as substantially limited in his ability to perform
tasks that are central to most people’s daily lives, he has alleged that BNSF knew that he had
virtually no grip strength in his right hand and that he was denied employment on this basis.1
Assuming these allegations are true, it is at least plausible that a complete inability to grip
objects with one hand would qualify as a substantial limitation on the major life activity of
performing manual tasks (including tasks that are central to most people’s daily lives) and that
BNSF accordingly perceived Mr. Duty as disabled within the meaning of the ADA. Thus,
Duty’s allegations, taken together, fairly embrace the contention that BNSF perceived Mr. Duty
as having a substantial limitation on the ability to perform manual tasks. See Roman-Oliveras v.
BNSF particularly criticizes paragraph 28 of Mr. Duty’s amended intervenor complaint, which
alleges that “[i]f Plaintiff-Intervenor was not capable of climbing ladders using a three point
contact rule or gripping tools using both hands, as Defendant falsely claimed or believed,
Plaintiff Duty would also be substantially limited in the major life activity of performing manual
tasks.” According to BNSF, this paragraph improperly makes a “logical leap” because the
Supreme Court in Toyota held that manual tasks unique to any particular job are not necessarily
important parts of most people’s dailiy lives. But when the allegations in Mr. Duty’s intervenor
complaint are taken as a whole, the complaint plausibly suggests that BNSF regarded Mr. Duty
as substantially limited in performing manual tasks that are central to most people’s lives.
Puerto Rico Elec. Power Auth., 655 F.3d 43, 49 (1st Cir. 2011) (complaint satisfied Iqbal and
Twombly despite the fact that it did not expressly assert that the defendant regarded the plaintiff
as substantially limited in a class of jobs or a broad range of jobs in various classes; allegations
were sufficient to “embrace that contention”).
The court has uncovered one district court case with analogous facts that is instructive
here. In Hataway v. Board of Trustees of the University of Illinois, 2013 WL 160442 (C.D. Ill.
Jan. 15, 2013), the plaintiff developed degenerative arthritis in both wrists which resulted in an
inability to perform the essential functions of his job as a shipping and receiving clerk—namely,
frequently lifting objects weighing up to 70 pounds. Id. at *1. Eventually, his physician
released him to work as long as the work did not require lifting or grasping objects weighing
more than 20 pounds. Id. Shortly thereafter, plaintiff began receiving disability benefits and his
employer placed him on disability leave. Id. Plaintiff then applied for an open position and his
employer allegedly told him that he could not apply because he was “on disability.” Id. The
plaintiff filed suit under the ADA alleging that the employer discriminated against him on the
basis of an actual disability and that it regarded the plaintiff as disabled. Id.
The employer filed a motion to dismiss both claims on the grounds that the plaintiff did
not adequately plead that he was disabled under the ADA.
Id. at *2. According to the
employer, the plaintiff had alleged an impairment that interfered with work-related tasks rather
than tasks that were of central importance to most people’s daily lives. The district court denied
the motion and concluded that the plaintiff’s allegation that his arthritic wrists rendered him
completely unable to grasp objects was sufficient to resist dismissal:
Assuming this statement to be true, the complete inability to grasp objects must
certainly qualify as a substantial limitation on the major life activity of performing
manual tasks (not to mention lifting or working). This allegation is a plausible
effect of degenerative arthritis. . . . [Plaintiff] has pled just enough to proceed with
Id. at *3. With respect to the plaintiff’s “regarded as” claim, the employer further argued that its
statement that the plaintiff was “on disability,” coupled with the allegations concerning the
plaintiff’s impairment, were not sufficient to state a claim. Id. at *5. The court rejected this
argument, concluding that such a claim was plausible and that discovery was necessary to
determine the extent of the employer’s knowledge and perceptions of the extent of the plaintiff’s
injuries; whether the plaintiff was capable of returning to full duty; and the seriousness of his
injuries. Id. at *5.
The plaintiff in Hataway, then, was not required to specifically allege that the employer
regarded him as substantially limited in performing tasks central to most people’s daily lives
because his allegations about his limitations with respect to work-related tasks made it plausible
that he was similarly limited with respect to the major life activity of performing manual tasks.
Plaintiff’s allegations here concerning BNSF’s perception of his grip strength, while certainly
work-related, are similarly sufficient to state a plausible claim that BNSF perceived him as
substantially limited in the major life activity of performing manual tasks. Requiring more
detail from Mr. Duty at the pleading stage 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
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.2
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 amended intervenor complaint, Mr. Duty alleges that he engaged in protected
opposition to discrimination when he communicated with both the HR and Medical Review
departments about the nature of his disability, his concerns about BNSF’s requirement that he
submit the results of a second medical examination and his options as a disabled candidate who,
in his opinion, could perform the essential functions of the position he sought. According to Mr.
Duty, BNSF retaliated against him when it refused to hire him, refused to engage in an
BNSF also contends that Mr. Duty has effectively pled himself out of court by alleging that
BNSF regarded him as substantially limited in performing manual tasks simply because it
concluded that he was unable to perform tasks unique to the Locomotive Electrician job. The
court, however, does not read Mr. Duty’s complaint so narrowly and finds that he has stated a
plausible claim for relief.
interactive process, refused to provide him reasonable accommodations so that he could perform
the job and required him to submit to a second medical examination.3
In its motion to dismiss, BNSF contends that Mr. Duty, despite amending his intervenor
complaint, has failed to state a plausible claim for retaliation under the ADA. According to
BNSF, Mr. Duty’s amended complaint suffers from the same deficiencies as his initial
complaint—a failure to allege facts suggesting a plausible nexus between his protected activity
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.
In Mr. Duty’s initial
complaint, he alleged only that he raised concerns to HR and there were no facts whatsoever
suggesting that HR had any contact with anyone in the Medical Review. Indeed, the facts
indicated that the Medical Review department operated independently of any oversight or input
from HR. The court, then, concluded that, in the absence of facts suggesting that anyone in the
Medical Review department had knowledge of Mr. Duty’s comments to HR, his retaliation
claim did not rise above the speculative level. In amending his complaint, Mr. Duty now alleges
that he made direct contact with the Medical Review department and shared the same concerns
directly with Medical Review—namely, the nature of his disability and his concerns about the
requirement that he undergo a second examination. According to Mr. Duty, the purpose of the
phone call was to explore his options aside from a second medical examination.
Mr. Duty also asserts that BNSF retaliated by refusing to provide a job description. The court
previously dismissed this claim on the grounds that Mr. Duty had not pleaded facts suggesting
that the failure to provide a job description would be materially adverse to a reasonable person.
Because Mr. Duty has not amended his complaint to address that deficiency in any respect, the
court’s prior order dismissing that claim stands.
Mr. Duty’s amended complaint, then, sufficiently fills in the gaps of his initial complaint.
He has specifically alleged a plausible connection between his protected activity and various
adverse actions that BNSF allegedly took against him. Taking Mr. Duty’s allegations as true, he
contacted the Medical Review department directly, essentially sought to have a discussion about
reasonable accommodations for his disability, and thereafter had his offer of employment
withdrawn because the Medical Review department deemed him unqualified.
allegations satisfy Twombly and Iqbal. BNSF’s additional challenges to Mr. Duty’s retaliation
claim are more properly suited to resolution on summary judgment.4 The motion is denied.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion for
partial dismissal (doc. 47) of Kent Duty’s first amended intervenor complaint is denied.
IT IS SO ORDERED.
Dated this 16th day of August, 2013, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
BNSF, for example, contends that its failure to engage in an interactive process is not an
adverse employment action; that it never “required” Mr. Duty to undergo a second examination;
that Mr. Duty has not alleged a plausible connection between the unidentified person he talked
to in the Medical Review department and the Medical Officer who determined that Mr. Duty
was not qualified; and that Mr. Duty’s contention that BNSF failed to reasonably accommodate
him in retaliation for his complaints is improperly duplicative of his failure-to-accommodate
claim. These challenges are more properly examined after the discovery process.
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