Bohner v. Union Pacific Railroad Company

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Partially Dismiss Plaintiff's Complaint Under Rule 12(b)(6) is GRANTED in part and DENIED in part 5 . The motion is GRANTED as to Plaintiff's failure to accommodate claim in Count II and DENIED as to Plaintiffs impermissible medical examinations claim in Count III. IT IS FURTHER ORDERED that Plaintiff's failure to accommodate claim in Count II is DISMISSED for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). An appropriate order of partial dismissal will accompany this memorandum and order. Signed by District Judge Sarah E. Pitlyk on 9/14/2020. (KEK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROBERT BOHNER,
Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant.

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No. 4:19-cv-2581-SEP

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Union Pacific Railroad Company’s motion
to partially dismiss Plaintiff Robert Bohner’s Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim on which relief may be granted. Doc. [5].
Plaintiff opposes the motion, which is fully briefed. For the following reasons, the motion will
be granted in part and denied in part.
I.

Background

At all times relevant to the Complaint, Plaintiff was employed by Defendant Union
Pacific Railroad Company. Plaintiff began his employment with Defendant in 1994. He alleges
that on May 29, 2018, his supervisor removed him from service when he observed Plaintiff
experiencing shortness of breath. Plaintiff suffers from arthritis and Lyme disease, which he
claims “substantially limits his ability to care for himself, perform manual tasks, see, hear, eat,
sleep, walk, stand, lift, bend, speak, breathe, learn, read, concentrate, think, communicate, and/or
work.” Doc. [1] ¶¶ 8-9. Plaintiff does not state what position he holds with Defendant and does
not provide a description of his job duties.
After being removed from service, Plaintiff alleges he was examined by his doctor who
determined he could perform the essential functions of his job. Despite this medical opinion,

Defendant refused to reinstate Plaintiff until he underwent a cardiac test. Plaintiff alleges that
despite his paying for and passing the cardiac test, Defendant continued to refuse him work and
subsequently required him to complete a field examination. Plaintiff states he underwent a field
examination on July 19, 2018, which was performed by two of Defendant’s managers, two union
representatives, and a signal maintainer. Plaintiff alleges that his managers failed him on the
field examination because he was unable to bend and squat, and he was again denied
reinstatement.
Plaintiff filed the instant action on September 16, 2019, asserting claims for disability
discrimination (Count I), failure to accommodate (Count II), and impermissible medical
examinations (Count III) under the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq.
(“ADA”). Defendant seeks to dismiss Counts II and III of the Complaint for failure to state a
claim on which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
II.

Legal Standard

The purpose of a motion to dismiss for failure to state a claim is to test the legal
sufficiency of the complaint. As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), a complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief
that is plausible on its face.” Id. at 570 (abrogating the traditional 12(b)(6) “no set of facts”
standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A plaintiff need not provide
specific facts in support of his allegations, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam), but must include sufficient factual information to provide the “grounds” on which the
claim rests, and “to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555 &
n.3. See also Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). This
obligation requires a plaintiff to plead “more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A
complaint “must contain either direct or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable legal theory.” Id. at 562 (quoted case
omitted). On a motion to dismiss, the Court accepts as true all the factual allegations contained
in the complaint and reviews the complaint to determine whether its allegations show that the
pleader is entitled to relief. Id. at 555–56; Fed. R. Civ. P. 8(a)(2).
III.

Discussion
A. Failure to Accommodate (Count II)

Defendant argues that Plaintiff’s failure to accommodate claim should be dismissed
because Plaintiff alleges in his Complaint that he can perform the essential functions of the job
and admits he did not request a specific accommodation. According to Defendant, when an
employee claims he can perform the essential functions of the job and does not request or
identify an accommodation, a failure to accommodate claim must be dismissed pursuant to Fed.
R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.
In his opposition, Plaintiff explains that he did not identify a way in which Defendant
could have accommodated his disability because he does not believe his job’s essential functions
require an accommodation and because the law does “not require employees to identify in their
complaints the ways in which their disabilities could have been accommodated.” Doc. [9] at 1,
4-5. Plaintiff further states that he brought the failure to accommodate claim only as a means “to
reserve his right to respond to any argument to the contrary.” Id. at 1, 5.
To support a failure to accommodate claim, Plaintiff “must establish both a prima facie
case of discrimination based on [his] disability and a failure to accommodate it.” Schaffhauser v.
United Parcel Serv., Inc., 794 F.3d 899, 905 (8th Cir. 2015). To establish a prima facie case of
discrimination based on disability, Plaintiff must show “(1) a qualifying disability; (2)

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qualifications to perform the essential functions of [his] position with or without reasonable
accommodation; and (3) an adverse employment action due to [his] disability.” Kelleher v. WalMart Stores, Inc., 817 F.3d 624, 631 (8th Cir. 2016) (cited cases omitted).
If the Court were to find that Plaintiff had established a prima facie case based on his
disability, Plaintiff would then have to establish Defendant’s failure to accommodate his
disability. “To determine whether an accommodation for the employee is necessary, and if so,
what that accommodation might be, it is necessary for the employer and employee to engage in
an ‘interactive process.’” Schaffhauser, 794 F.3d at 906 (quoting Peyton v. Fred’s Stores of
Ark., Inc., 561 F.3d 900, 902 (8th Cir. 2009)). “This interactive, accommodation-seeking
process must be initiated by the disabled employee, who must alert his employer to the need for
an accommodation and provide relevant details of his disability.” Id. (citing EEOC v. Convergys
Customer Mgmt. Grp., 491 F.3d 790, 795 (8th Cir. 2007)).
To show that an employer did not engage in an interactive process, the employee
must prove:
1) the employer knew about the employee’s disability;
2) the employee requested accommodations or assistance for his or her disability;
3) the employer did not make a good faith effort to assist the employee in seeking
accommodations; and
4) the employee could have been reasonably accommodated but for the
employer’s lack of good faith.
Id. (citing Peyton, 561 F.3d at 902).
Plaintiff is incorrect in his assessment that the law does “not require employees to
identify in their complaints the ways in which their disabilities could have been accommodated.”
Doc. [9] at 1, 4-5. In support of his argument, Plaintiff cites to California case law, specifically
Nealy v. City of Santa Monica, 234 Cal. App. 4th 359 (2015), and Schauf v. American Airlines,
2016 WL 110481 (E.D. Cal. Jan. 11, 2016), which analyzed employers’ failures to provide

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reasonable accommodations under the California Fair Employment and Housing Act, not the
ADA. These authorities are not binding on this Court and are unpersuasive, as they contradict
Eighth Circuit precedent.
The Eighth Circuit has held definitively that an employee must request an
accommodation in order to succeed on a claim for failure to accommodate. See Schaffhauser,
794 F.3d at 906. Plaintiff’s Complaint does not allege that he requested an accommodation or
that a reasonable accommodation was possible. To the contrary, Plaintiff admits in his
opposition briefing that he intentionally did not request an accommodation from his employer
“because he does not believe his job’s essential functions require him to bend and squat more
than he did.” Doc. [9] at 5. Regardless of whether Plaintiff thought he was physically able to
perform the essential functions of his job, to state a failure to accommodate claim he must allege
that he sought an accommodation from his employer and his employer failed to assist in it.
“A sufficient request for accommodation includes identification and discussion about
what specific accommodations might be made to allow the individual to continue to perform the
essential functions of his or her job.” Mills v. St. Louis Cty. Gov’t, 2018 WL 3208581, at *6
(E.D. Mo. June 29, 2018); see also Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 446 (8th
Cir. 1998) (plaintiff is required to “make a facial showing that reasonable accommodation was
possible” and then the burden shifts to the employer to show that it was unable to accommodate
him). Because Plaintiff’s complaint does not allege facts to support a failure to accommodate
claim, Count II must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon
which relief can be granted.
B. Impermissible Medical Examinations (Count III)
Defendant argues that Plaintiff’s impermissible medical examinations claim should be
dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted,

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because the Complaint is devoid of factual allegations demonstrating that Defendant required
him to undergo an improper medical examination or inquiry and that such an examination or
inquiry caused him a tangible injury. Defendant contends that the allegations in Plaintiff’s
Complaint are consistent with its ability as an employer to make inquiries regarding the health of
its employees to perform job-related functions.
The ADA prohibits employers from requiring medical examinations or making inquiries
“as to whether such employee is an individual with a disability or as to the nature or severity of
the disability, unless such examination or inquiry is shown to be job-related and consistent with
business necessity.” 42 U.S.C. § 12112(d)(4)(A). “This provision applies to all employees,
regardless of whether the employee has an actual disability.” Thomas v. Corwin, 483 F.3d 516,
527 (8th Cir. 2007) (citing Cossette v. Minn. Power & Light, 188 F.3d 964, 969 (8th Cir. 1999)).
“To demonstrate compliance with § 12112(d)(4)(A), the employer bears the burden to show the
asserted ‘business necessity’ is vital to the business and the request for a medical examination or
inquiry is no broader or more intrusive than necessary.” Id. (cited case omitted).
“[C]ourts will readily find a business necessity if an employer can demonstrate . . . a
medical examination or inquiry is necessary to determine . . . whether the employee can perform
job-related duties when the employer can identify legitimate, non-discriminatory reasons to
doubt the employee’s capacity to perform his or her duties.” Id. (citing Sullivan v. River Valley
Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999) (holding that “there must be significant evidence
that could cause a reasonable person to inquire as to whether an employee is still capable of
performing his job” to uphold an employer’s request for an exam)). An employer’s request for a
medical examination is not inappropriate if it is not obvious that an employee suffers from a
disability. See Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998).

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The question of whether an employer legitimately sought a medical evaluation is
generally not one to be decided at this early stage of litigation. “To survive a motion to dismiss,
[P]laintiff must plead that (1) he was an employee of [D]efendant and (2) that [D]efendant
required a medical examination or made a disability-related inquiry of him.” Krehbiel v. Union
Pac. R.R. Co., 2019 WL 3387049, at *5 (D. Kan. July 26, 2019). Employer arguments as to
whether the ADA would permit the inquiry as job-related or consistent with business necessity
are premature on a motion to dismiss. Id.; see also Duda v. Bd. of Educ. of Franklin Park Pub.
Sch. Dist. No. 84, 133 F.3d 1054, 1060 (7th Cir. 1998) (affirming denial of motion to dismiss
that argued employee’s medical evaluation was job-related and consistent with business
necessity because “[a]t a later stage in this litigation, [defendant] will have an opportunity to
demonstrate that it was necessary to make such an inquiry in this situation”).
In the instant case, Plaintiff alleged that Defendant required him to undergo medical
examinations because a supervisor observed him to be out of breath on one occasion. While
Defendant may dispute this allegation and argue the medical evaluations it required were jobrelated and consistent with business necessity, such arguments are inappropriate at the pleading
stage. To survive a motion to dismiss, Plaintiff need only “put the defendant on notice as to the
nature of the claim against [it] and the relief sought,” Twombly, 550 U.S. at 574, and he has met
that standard here.
Defendant’s argument that Plaintiff has not alleged a tangible injury also fails. Plaintiff
alleges that Defendant’s medical inquiry into his shortness of breath was unlawful and its failure
to return him to work and his resulting loss of wages was a direct consequence of the unlawful
inquiry. Allegations of lost wages and emotional distress are tangible injuries that could accrue
when an employer refuses work to an employee based on an unlawful medical inquiry. See, e.g.,
Shoun v. Best Formed Plastics, Inc., 28 F. Supp. 3d 786, 790 (N.D. Ind. 2014) (finding an

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“emotional injury” is a recognized tangible injury under the ADA). Therefore, the Court will not
dismiss Plaintiff’s impermissible medical examinations claim (Count III).
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Partially Dismiss Plaintiff’s
Complaint Under Rule 12(b)(6) is GRANTED in part and DENIED in part. Doc. [5]. The
motion is GRANTED as to Plaintiff’s failure to accommodate claim in Count II and DENIED
as to Plaintiff’s impermissible medical examinations claim in Count III.
IT IS FURTHER ORDERED that Plaintiff’s failure to accommodate claim in Count II
is DISMISSED for failure to state a claim upon which relief can be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6).
An appropriate order of partial dismissal will accompany this memorandum and order.

Dated this 14th day of September, 2020.

_______________________________
SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE

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