BNSF Railway Company v. Feit
ORDER STAYING CASE, Motions terminated: (67 in 6:11-cv-00001-DWM, 77 in 6:10-cv-00054-DWM) GRANTING - MOTION to Clarify Scope of Remand or in the alternative to Recertify to the Montana Supreme Court filed by Eric Feit, (76 in 6:10-cv-00054-DWM , 66 in 6:11-cv-00001-DWM) DENYING - MOTION for Hearing re (34 in 6:11-cv-00001-DWM, 34 in 6:10-cv-00054-DWM) Response to Motion, Renewed Motion for Oral Argument filed by Eric Feit. Signed by Judge Donald W. Molloy on 5/1/2013. Associated Cases: 6:10-cv-00054-DWM, 6:11-cv-00001-DWM (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BNSF RAILWAY COMPANY,
a Delaware corporation,
CV 10-54-H-DWM and
Eric Feit moves the Court to either remand this matter to the state agency or
to recertify it to the Montana Supreme Court. Feit’s motion is well taken. The
Court remands this matter to the state agency with the following clarifications.
On certification, the Montana Supreme Court held:
Obesity that is not the symptom of a physiological disorder or
condition may constitute a “physical or mental impairment” within
the meaning of Montana Code Annotated § 49–2–101(19)(a) if the
individual’s weight is outside the “normal range” and affects “one or
more body systems” as defined in 29 C.F.R. § 1630.2(h)(1) (2011).
BNSF Ry. v. Feit, 281 P.3d 225, 231 (Mont. 2012). This means that two questions
must be answered in order to determine whether obesity may constitute a physical
or mental impairment: (1) is the individual’s weight outside the “normal range,”
and (2) does the individual’s weight affect “one or more body systems” as defined
in 29 C.F.R. § 1630.2(h)(1)?
The Montana Supreme Court cited with approval a case from the Eastern
District of Louisiana for the proposition that “weight outside the normal range”
means “severely obese.” Feit, 281 P.3d at 230 (citing EEOC v. Resources for
Human Dev., Inc., 827 F. Supp. 2d 688, 694 (E.D. La. 2011) (“[I]f a charging
party’s weight is outside the normal range—that is, if the charging party is
severely obese—there is no explicit requirement that obesity be based on a
physiological impairment.”)). The EEOC Compliance Manual § 902.2(c)(5)(ii), in
turn, notes that “severe obesity [is] defined as body weight more than 100% over
the norm . . . .”
This means that a person’s weight may be a physical or mental impairment
if: (1) it is more than 100% over the norm and (2) it affects one or more body
systems as defined in 29 C.F.R. § 1630.2(h)(1).
In light of the Montana Supreme Court’s decision, this Court remanded this
case back to the state agency for further factual findings consistent with the
Supreme Court’s decision. (Doc. 69). The agency then issued two factual findings:
(1) “Feit’s weight when he applied for work with BNSF was 220 pounds.” and (2)
“Feit’s weight when he applied for work with BNSF was not ‘more than 100%
over norm,’ under any meaningful definition of ‘100% over norm.’” (Doc. 75-1.)
The agency construed the Court’s remand order narrowly, but
understandably so, given the way the Court worded its order. While perhaps not as
evident as it should have been, the Court intended the agency to engage in broader
The Montana Supreme Court’s decision requires consideration of several
factual questions, including, but not limited to:
What was Feit’s weight when he applied for work with BNSF?
Was Feit’s weight when he applied for work with BNSF more
than 100% over the norm?
Did Feit’s weight affect “one or more body systems as defined
in 29 C.F.R. § 1630.2(h)(1)”?
Did BNSF regard Feit as having a weight 100% over the norm
at the time that he applied for work with BNSF? and
Did BNSF regard Feit as having a weight that affected one or
more body systems as defined in 29 C.F.R. § 1630.2(h)(1)?
This list is not exhaustive, but it is indicative of the types of questions that the
agency must consider (some of which it did consider on remand).
In light of the Montana Supreme Court’s decision in Feit, the Court intends
the agency to answer the following question—the central question in this
case—and to engage in any new fact finding necessary to arrive at that answer:
Did BNSF refuse employment to Feit because of “physical or mental
disability . . . when the reasonable demands of the position do not
require a[ ] . . . physical or mental disability . . . distinction”?
See Mont. Code Ann. § 49–2–303(1)(a).
IT IS ORDERED that Eric Feit’s motion to clarify the scope of remand
(doc. 77) is GRANTED. This matter is remanded to the state agency so that it may
make further factual findings consistent with this order and the Montana Supreme
Court’s decision in BNSF Ry. v. Feit, 281 P.3d 225, 231 (Mont. 2012).
IT IS FURTHER ORDERED that Feit’s renewed motion for oral argument
(doc. 76) is DENIED AS MOOT.
IT IS FURTHER ORDERED that this case is STAYED pending remand.
The parties are ordered to notify the Court once the state agency has made further
factual findings in accordance with this order.
Dated this 1st day of May 2013.
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