Reinhardt v. BNSF Railway Company et al

Filing 30

MEMORANDUM AND OPINION: granting Petition for Judicial Review, REVERSING final agency decision, and REMANDING to Montana Human Rights Commission for further proceedings. FURTHER ORDERED: Respondent BNSF shall pay reasonable atty fees/costs to Petitioner's counsel, who shall submit bill of costs/fees to opposing counsel. Clerk to notify Montana Human Rights Commission of entry of this Opinion & Order. Signed by Judge Charles C. Lovell on 2/6/2012. (MKB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
*******
MITCHELL REINHARDT,

CV 10-27-H-CCL

Petitioner,
-v-

OPINION & ORDER

BURLINGTON NORTHERN
SANTA FE RAILROAD,
Respondent.
*******
This matter was removed to federal court by Respondent Burlington
Northern Santa Fe Railroad (“BNSF”). In presiding over the case, this Court sits
in diversity jurisdiction. See BNSF Railway. Co. v. O’Dea, 572 F.3d 785 (9th Cir.
2009), cert. denied, 130 S. Ct. 1099 (2011).
The petition for review was filed by Petitioner Mitchell Reinhardt

1

(“Reinhardt”) pursuant to the Montana Administrative Procedure Act, § 2-4-701,
et seq., Montana Code Annotated. Reinhardt seeks judicial review of a final
agency decision of the Montana Human Rights Commission (“MHRC”). The final
decision of the MHRC affirmed its Hearing Officer’s determination that BNSF did
not discriminate against Reinhardt when it terminated Reinhardt’s employment for
a legitimate reason.
The petition for review came on for hearing on September 21, 2011.
Respondent BNSF was represented at the hearing by its counsel, Michelle T.
Friend. Due to a scheduling error, no appearance was made for Respondent
Reinhardt by his counsel, Peter Michael Meloy. The Court heard argument from
counsel for BNSF and took the matter under advisement. Having carefully
considered both the oral and written arguments of counsel, as well as the full
administrative record, this Court is prepared to rule.
STANDARDS
Under Montana law “[t]he review must be conducted by the court without a
jury and must be confined to the record.” Mont. Code Ann. § 2-4-704(1). “The
2

court may not substitute its judgment for that of the agency as to the weight of the
evidence on questions of fact,” and if additional evidence is needed, the Court
must remand to the agency for that purpose. Mont. Code Ann. § 2-4-703. The
Court may affirm, reverse, or remand the case for further proceedings.
“The court may reverse or modify the decision if substantial rights of the
appellant have been prejudiced because:
(a) the administrative findings, inferences, conclusions, or decisions are:
(I)

in violation of constitutional or statutory provisions;

(ii)

in excess of the statutory authority of the agency;

(iii)

made upon unlawful procedure;

(iv)

affected by other error of law

(v)

clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record;

(vi)

arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion....”

Mont. Code Ann. § 2-4-704(2).
3

In this case, the facts were adequately stated by the hearing officer in his
final decision dated November 24, 2009, and are not in dispute. After passing a
physical exam and after working for BNSF for approximately nine weeks,
Reinhardt was terminated from his position of conductor trainee by Glendive
Trainmaster Kautzmann on November 10, 2006. BNSF asserts that Reinhardt was
terminated because of safety concerns. Reinhardt asserts that he was terminated
due to a “regarded as” disability1 and his age.
Reinhardt bases his claim of discrimination upon Mont. Code Ann. § 49-2303(1)(a). That provision states that “[i]t is an unlawful discriminatory practice
for . . . an employer to refuse employment to a person, or bar a person from
employment, or to discriminate against a person in compensation or in a term,
condition, or privilege of employment because of . . . age [or] physical . . .
disability . . . when the reasonable demands of the position do not require an age

“Physical disability” is defined to include either a “physical . . .
impairment that substantially limits one or more of a person’s major life activities”
or “a condition regarded as such an impairment.” MCA 49-2-102(19) (emphasis
added).
1

4

[or] physical . . . disability . . . distinction.” MCA 492-303(1)(a). Significantly,
“[d]iscrimination based on, because of, on the basis of, or on the grounds of
physical or mental disability includes the failure to make reasonable
accommodations that are required by an otherwise qualified person who has a
physical or mental disability.” MCA 49-2-102(19).
The Hearing Officer found that the Glendive Trainmaster, Don Kautzmann,
had reported both orally and in writing that Reinhardt had been described as
though he’d had a stroke and was too old (age 48) for the position of conductor
trainee. (Doc. 26-1, ¶ 32.) Reinhardt’s training coordinator, Daniel Dassinger told
Reinhardt that “maybe he was too old for the job.” (¶ 34.)
In railroading, there is a practice of using union employees (craft
instructors) to train new hires, “requiring management to rely to a greater extent
upon the feedback of the seasoned union employees who train and observe the
trainees.” (¶ 13.) Although there were some 23 good evaluations of Reinhardt’s
performance (all of which were lost, apparently, and could not be produced by
BNSF) (¶ 37, fn.2), there were the following evaluation comments submitted by
5

other engineers, conductors, and switchmen suggesting that Reinhardt might be
physically impaired:
1. Locomotive Engineer Allen Koncilya worked with Reinhardt on an
assignment, and he observed that Reinhardt was not “walking stable.” (¶ 22.) He
reported his concern to Trainmaster Kautzmann out of concern about Reinhardt’s
mobility and safety.
2. Conductor Keith Clingingsmith evaluated Reinhardt as good or fair in
most categories, but he reported also that Reinhardt was not “walking stable.”
(¶ 20.) Clingingsmith compared Reinhardt to “somebody that had a stroke or had
recovered from a stroke[.]” (¶41, fn.3.) (TR 296:23-25.)
3. Engineer Pete Score “observed Reinhardt having inordinate difficulty
walking and keep his balance while on ballast and getting on and off the
locomotive.” (¶ 24.)
4. Conductor Jim Knoll worked in the switch yard with Reinhardt for
several days and gave a good/fair evaluation for much of Reinhardt’s work but a
poor evaluation for ten specific duties. (¶ 28.) Knoll wrote a note on the
6

evaluation form stating that Reinhardt “does not have the physical capability to do
the job [and] seems very unstable walking along the tracks and . . . on moving
equipment.” (¶ 29.)
5. After several days of observing Reinhardt in the switch yard,2 Switch
Foreman Steve Ballentine observed that Reinhardt had difficulty walking on
ballast. (¶ 30.) Ballentine’s written evaluation was dated four days after
Reinhardt’s termination. (¶ 30.)
6. On November 6, 2006, Don Dassinger (the head trainer) told Reinhardt
that there were complaints about his work and “maybe he was too old for the job.”
(¶ 34.) Dassinger told both H.R. Officer Woodard and Trainmaster Kautzmann
that there were 30-40 good evaluations, but later Dassinger acknowledged that

After initial concerns were raised by the craft instructors, management
placed Reinhardt in the switch yard, which apparently involves even more taxing
physical duty in that switch yard duty called for twelve hour shifts consisting
mostly of climbing in and out of rail cars with few opportunities to sit down. TR
74:9-25. Apparently the benefit to this was that Reinhardt could be observed more
closely while performing switch yard duty, although it was a duty not assigned to
others in his class of trainees. TR 73:17-25.
2

7

was an overstatement and there could not have been more than 23 good
evaluations. BNSF lost the good evaluations, which were therefore not produced
in discovery. (¶ 36, fn.2.)
7. On November 7, 2006, Reinhardt was assigned to an over-and-back run
with Conductor Jason Ackerman. Ackerman prepared and submitted a bad
evaluation of Reinhardt after Reinhardt had been terminated. (¶ 35 n.1.)
8. Trainmaster Kautzmann told BNSF’s Human Resources Officer, Mike
Woodard, that Reinhardt looked like he had had a stroke and was too old for the
position. (¶ 32.) On November 10, 2006, Kautzmann and Dassinger met with
Reinhardt, and Kautzmann told Reinhardt that “BNSF had concerns about his
physical capacity to perform his job duties and that for safety’s sake they were
terminating his employment.” (¶ 38.)
The Hearing Officer found that, after being terminated, Reinhardt sought
medical evaluation regarding his legs. “The evidence adduced regarding post
termination medical evaluations and treatment of Reinhardt does not support any
findings that Reinhardt suffered from any defined medical problem that caused his
8

difficulties safely performing the required physical activities necessitated by
essential conductor job duties.” (¶ 44.)
The Hearing Officer’s findings of fact noted in paragraph 1-8 above, are
clearly not “stray remarks in the workplace,” discriminatory “statements by
nondecisionmakers, or statements by decisionmakers but unrelated to the
decisional process.” Price-Waterhouse, 490 U.S. at 277 (O’Connor, J.,
concurring). No one in BNSF’s employ suggested that Reinhardt was lazy,
uninformed, or inadequately motivated to perform his job properly.3 The evidence
clearly shows that BNSF personnel judged Reinhardt to be physically incapable
and possibly too old to perform his job adequately or safely, and for these reasons
his employment was terminated. To the extent that there appears to be a dispute
between the parties as to the reason for the adverse employment action, that
appearance is superficial and not substantive. Both parties agree that BNSF
terminated Reinhardt because it believed Reinhardt to have a physical impairment
In fact, Reinhardt passed his first two weeks of BNSF classroom training
in Glendive with a test score of 92.4 and his overall BNSF classroom training with
an 85%. CP Ex. 9.
3

9

that gave rise to a safety issue. Reinhardt merely disagrees with BNSF’s
conclusion that Reinhardt’s physical impairment gave rise to a safety issue.
Reinhardt also takes the position that the process by which BNSF came to that
conclusion was defective. However, Reinhardt does not believe that BNSF’s
stated reason for the termination was a pretext for something else. In fact, the
safety reason given by BNSF is not legally distinguishable from the physical
impairment giving rise to the safety issue. Conduct–including the safety and
performance issues raised by BNSF--that occurs as a result of a disability (i.e.,
“disability-produced conduct”) is part of the disability itself. It does not provide
an analytically separate basis for termination. Gambini v. Total Renal Care, 486
F.3d 1087, 1093 (9th Cir. 2007); Reeves v. Dairy Queen, Inc., 992 P.2d 229 (Mont
1998). Thus, there is no substantial dispute between the parties regarding the
reason for the termination. Both parties agree that BNSF terminated Reinhardt
because it believed that his physical impairment gave rise to safety and
performance issues. The dispute is whether the termination for that reason was
illegal.
10

The hearing officer applied the McDonnell Douglas standard (suitable for a
“pretext” case) to Reinhardt’s claim of discrimination. McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). It was thus Reinhardt’s burden to prove that (1) he
was a member of a protected class; (2) he was qualified for the conductor trainee
position; and (3) he was discharged because he was a member of the protected
class or classes. Tonack v. Montana Bank of Billings, 854 P.2d 326 (Mont. 1993).
But first, before engaging in that analysis, the hearing officer considered whether
Reinhardt’s evidence was direct evidence of discrimination.
Quoting Black’s Law Dictionary, 413 (5th Ed. 1979), the Hearing Officer
defined direct evidence to be “‘proof which speaks directly to the issue, requiring
no support by other evidence’ and which proves a fact or facts without the need
for an inference or a presumption.” (Doc. 26-1 at 12.). If the petitioner presents
direct evidence of discrimination, the burden of proof and the burden of
persuasion shifts to the respondent who then must either discredit the evidence or
present a legal justification for the adverse action. (Doc. 26-1 at 12, citing Blalock
v. M.T.I. 775 F.2d 703, 707 (6th Cir. 1985). Significantly, the direct evidence can
11

relate solely to the adverse action or it can relate to the discriminatory intent
behind the adverse action. (Doc. 26-1 at 12-13 (citing Foxman v. MIADS,
(6/29/1992) HRC Case #8901003997; Edwards v. Western Energy, (9/8/1990),
HRC Case #AHpE86-2885; Elliot v. Helena, (6/14/1989), HRC Case
#8701003108). These two categories are significant, especially because the
Hearing Officer considered the latter category, but not the former.
Although the Hearing Officer acknowledged that there were numerous
instances of direct evidence wherein both fellow conductors and management
personnel discussed their perceptions of Reinhardt’s physical limitations and age
as being the cause for Reinhardt’s unacceptable job performance, the Hearing
Officer nonetheless concluded that these instances reflected no “retaliatory animus
that stems from stereotypical thinking....” (Doc 26-1 at 13.) Furthermore, the
Hearing Officer found that no BNSF employee “lied about or misperceived about
[sic] what he saw....” (Doc. 26-1 at 14.) Therefore, the Hearing Officer concluded
that “the descriptions of Reinhardt’s difficulties in terms of age and a possible
medical condition were not direct evidence of discrimination.” (Doc 26-1 at 14.)
12

This legal conclusion (that Reinhardt’s evidence is not direct evidence) is flawed,
however, because it ignores the other type of direct evidence: that which relates
solely to the adverse action itself.
An example of this latter category of direct evidence would be when an
employer states explicitly that it is terminating an employee because of his age or
physical disability: this would be direct evidence of discrimination. To jump to
the conclusion that it is not direct evidence because the “real” reason for the
adverse action is safety and poor performance, not discrimination, quits the
analysis too early by ignoring the subsequent steps of the direct-evidence analysis.
The McDonnell Douglas burden-shifting test, which was utilized by the
Hearing Officer in this case, does not apply to cases based on direct evidence of
employment discrimination. See Trans World Airlines, Inc. v. Thurston, 469 U.S.
111, 121, 105 S. Ct. 613, 621-22, 83 L.Ed.2d 523 (1985). In direct evidence cases
in which both parties agree on the employer’s articulated reason for terminating
the plaintiff, the only issue to be decided is whether the employer’s action is
illegal.
13

In response to a direct evidence claim wherein the reason given by the
employer is not in dispute, the employer may prove by a preponderance of the
evidence either (1) that plaintiff’s direct evidence is simply not credible, or (2) that
no unlawful motive played a role in the adverse employment action. See Allison v.
Town of Clyde Park, 11 P.3d 544, 547 (Mont. 2000) (citing Reeves v. Dairy
Queen, Inc., 953 P.2d 703 (Mont. 1998)); see also Rule 24.9.610(5), Admin. R.
Mont. (“ARM”). In proving its case, the employer may rely on Mont. Code Ann.
§ 49-2-303(a), to defend itself by proving that the reasonable demands of the
position do require an age or physical disability distinction. Additionally, the
employer may defend with Mont. Code Ann. § 49-2-102(19)(b), which provides
that “[a]n accommodation that would require an undue hardship or that would
endanger the health or safety of any person is not a reasonable accommodation.”
However, in attempting to meet its burden, the employer would also have to
confront additional potential challenges arising from Montana case law and
Montana’s administrative rules. One such hurdle would be the Montana’s
mandatory requirement that employers engage in an interactive process with an
14

employee with a disability in order to identify and implement appropriate
reasonable accommodations. See McDonald v. Dept. Envtl. Quality, 214 P.3d
749, 764 fn.9 (Mont. 2009) (citing both Barnett v. U.S. Air, 228 F.3d 1105, 111114 (9th Cir. 2000) (en banc), judgment vacated on other grounds, 535 U.S. 391,
122 S. Ct. 1516, 152 L.Ed.2d 589 (2002), and also 29 C.F.R. § 1630.2(o)(3),4 app.
“To determine the appropriate reasonable accommodation it may be
necessary for the covered entity to initiate an informal, interactive process with the
individual with a disability in need of the accommodation. This process should
identify the precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those limitations.” C.F.R.
§ 1630.2(o)(3).
Furthermore, when a “direct threat” of substantial harm to the health or
safety is being considered, there shall be an “individualized assessment of the
individual’s present ability to safely perform the essential functions of the job.
This assessment shall be based on a reasonable medical judgment that relies on the
most current medical knowledge and/or on the best available objective evidence.
In determining whether an individual would pose a direct threat, 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.”
C.F.R. § 1630.2(r).
“Such consideration must rely on objective, factual evidence–not on
subjective perceptions, irrational fears, patronizing attitudes, or stereotypes–about
the nature or effect of a particular disability, or of disability generally.” C.F.R.
4

15

§ 1630.9). Another hurdle is that when an employee is not informed until the
point of termination that his disability is in issue and could potentially result in
termination, the employer has a duty to investigate what reasonable
accommodations might be available to assist the employee before firing the
employee. Reeves v. Dairy Queen, Inc., 953 P.2d 703, 711 (9th Cir. 1998) (duty to
investigate accommodation shifting to employer when employee not given
opportunity to request accommodation.). Reeves provides that the duty to
investigate potential available accommodations arises prior to termination:
[I]ndependent assessment of the risk of substantial harm is evaluation
by the employer of the probability and severity of potential injury in
the circumstances, taking into account all relevant information
regarding the work and medical history of the person with the
disability before taking the adverse employment action in question.
Reeves (quoting Rule 24.9.606(8), ARM) (emphasis added); see also Hafner v.
Conoco, Inc., 977 P.2d 330 (Mont. 1999) (stating that the independent assessment

§ 1630, app. § 1630.2(r).
“The obligation to make reasonable accommodation is a form of nondiscrimination. It applies to all employment decisions and to the job application
process.” C.F.R. § 1630, app. § 1630.9.
16

requirement applies to both McDonnell or Reeves tests). The safety defense, in
particular, specifically requires that the employer independently assess whether an
accommodation would create a reasonable probability of substantial harm. Rule
24.9.606(7), ARM. If the employer fails to make that independent assessment,
however, then a disputable presumption arises that the employer’s justification (of
safety) is a pretext for discrimination on the basis of disability. Rule 24.9.606(7),
ARM.5
Clearly, an employer may have a legitimate reason for a termination (or
another adverse employment action) which might, at least superficially, appear to
be an act of discrimination. Indeed, the Administrative Rules of Montana
explicitly make it clear that employers are not required to accommodate any and
all disabilities regardless of the hardship to the employer:
“If an employer defends an adverse employment action against a person
with a physical or mental disability on the grounds that an accommodation would
endanger the health or safety of a person, the employer’s failure to independently
assess whether the accommodation would create a reasonable probability of
substantial harm will create a disputable presumption that the employer’s
justification is a pretext for discrimination on the basis of disability.” Rule
24.9.606(7), ARM.
5

17

(1) It is an unlawful discriminatory practice for an employer, agent of an
employer, employment agency or labor organization to:
(a) fail to make reasonable accommodations to the known physical or
mental limitations of an otherwise qualified employee, employment
applicant or union member with a physical or mental disability unless
it can demonstrate that the accommodation would impose an undue
hardship on the operation of the business in question.
Rule 24.9.606, ARM (emphasis added).
In this case, the legal justification for BNSF’s adverse employment action is
that Reinhardt’s termination was necessary to protect Reinhardt’s safety and the
safety of others. Indeed, such a justification is explicitly approved by the
Administrative Rules of Montana:
An accommodation to a person with a physical or mental disability
for the purpose of enabling the person to perform the essential
functions of an employment position is not reasonable if it would
endanger the health or safety of any person.
Rule 24.9.606(6), ARM.

18

It is clear to the Court that Reinhardt has presented a prima facie directevidence case of discrimination based on a perceived physical disability. The
direct evidence as to age discrimination is not as abundant. On the other hand, it
is also clear that BNSF, which commendably places high prioritization on safety,
does assert the safety defense and that there is strong evidentiary support therefor.
This Court does not determine herein that BNSF’s termination of Reinhardt
was illegal. Instead, the Court determines that the Hearing Officer’s legal analysis
was not correct and should be revisited. The error in the analysis lies in its failure
to recognize properly the nature of the direct evidence and to apply an appropriate
analysis to the undisputed facts.
Therefore, finding that the final decision is affected by an error of law that
substantially affects the rights of the appellant, this Court reverses the final agency
decision and remands the case to the Montana Human Rights Commission for
further analysis of Reinhardt’s direct evidence and BNSF’s defenses thereto.
Accordingly, the Petition for Judicial Review having been granted,
IT IS HEREBY ORDERED that the final agency decision of the Montana
19

Human Rights Commission is REVERSED and REMANDED for further
proceedings consistent with this Opinion.
IT IS FURTHER ORDERED that Respondent BNSF shall pay reasonable
attorney fees and costs for this suit to Petitioner’s counsel, who shall submit a bill
of costs and fees to opposing counsel forthwith. If counsel are unable to agree
upon amount and payment details within 10 days hereafter, Petitioner shall move
the Court for an order setting such fee and payment thereof.
Done and dated this 6th day of February, 2012.

20