Morriss v. BNSF Railway Company

Filing 122

MEMORANDUM AND ORDER - Defendant's motion to restrict access to documents 95 is granted, and, pursuant to NEGenR 1.3(a)(1)(B)(ii), access to filings 97 and 98 shall be restricted to attorneys of record and court users. Defendant's mo tion to strike reply brief 118 is denied. Defendant's motion for summary judgment 96 is granted, and Plaintiff's action is dismissed with prejudice. Plaintiff's motion for partial summary judgment 99 is denied. Judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MELVIN A. MORRISS III,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.

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8:13CV24

MEMORANDUM
AND ORDER

This matter is before the court on cross-motions for summary judgment.1 For
purposes of deciding these motions, there are no genuine issues of material fact.
On May 3, 2011, the plaintiff, Melvin A. Morriss III (“Morriss”), received a
conditional offer of employment from the defendant, BNSF Railway Company
(“BNSF”), to work as a machinist. The job offer was withdrawn on May 18, 2011,
when Dr. Sharon Clark, a BNSF medical review officer, determined in accordance
with company policy that Morriss was “Not currently qualified for the safety sensitive
Machinist position due to significant health and safety risks associated with Class 3
obesity (Body Mass Index of 40 or greater).” (Morriss depo. Ex. 11 (filing 101-2 at
132) (emphasis in original).) 2
1

The defendant has also filed (1) a motion to restrict access to certain
documents, in order to prevent disclosure of the plaintiff’s confidential medical
records, and (2) a motion to strike the plaintiff’s reply brief or, alternatively, for leave
to file a surreply brief. The first motion (filing 95) will be granted. The second motion
(filing 118) will be denied.
2

Morriss stands 5 feet 10 inches tall. On May 11, 2011, he weighed 281 pounds
and had a body mass index (“BMI”) of 40.3. (Clark depo. Ex. 31 (filing 98-21).) On
May 16, 2011, he weighed 285 pounds and had a BMI of 40.9. (Clark depo. Ex. 32
(filing 98-22).)

Morriss claims he was not hired by BNSF because of a disability, or a
perceived disability, in violation of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. §§ 12101 et seq., as amended by the Americans with Disabilities
Act Amendments Act of 2008 (“ADAAA”), Pub.L. No. 110-325, 122 Stat. 3553, and
in violation of the Nebraska Fair Employment Practice Act (“NFEPA”), Neb. Rev.
Stat. §§ 48-1101 et. seq.3 Because disability discrimination claims under the NFEPA
are analyzed using the same framework as claims brought under the ADA, see Orr v.
Wal-Mart Stores, Inc., 297 F.3d 720, 723 (8th Cir. 2002), no separate analysis of the
state law claim is necessary.
“To establish discrimination under the ADA, an employee must
show that [he or] she (1) is disabled within the meaning of the ADA, (2)
is a qualified individual under the ADA, and (3) has suffered an adverse
employment action because of [his or] her disability.” Hill v. Walker, 737
F.3d 1209, 1216 (8th Cir. 2013). “The definition of disability in [the
ADA] shall be construed in favor of broad coverage ... to the maximum
extent permitted by the terms of this chapter.” 42 U.S.C. § 12102(4)(A).
“The ADA defines a disability as a physical or mental impairment that
substantially limits one or more of the major life activities of an
individual,4 a record of such impairment, or being regarded as having
3

Morriss alleges that he was not hired by BNSF because “he is an individual
with a disability as defined by the NFEPA and the ADA” (Plaintiff’s complaint,
combined counts III & IV (filing 1), ¶ 26), but he has not moved for summary
judgment on this claim of “actual disability” discrimination. His motion is limited to
claiming it was BNSF’s “perception that [he] was disabled” by obesity (Plaintiff’s
complaint, combined Counts I & II (filing 1), ¶ 19.) BNSF, on the other hand, has
moved for summary judgment on all claims and argues that Morriss’s obesity was not
an impairment, nor was it regarded as an impairment.
4

“[M]ajor life activities include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A). “[A] major life activity also
includes the operation of a major bodily function, including but not limited to,
functions of the immune system, normal cell growth, digestive, bowel, bladder,
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such an impairment.” Norman v. Union Pacific R.R. Co., 606 F.3d 455,
459 (8th Cir. 2010); see also 42 U.S.C. § 12102(1). “[T]hough the
ADAAA makes it easier to prove a disability, it does not absolve a party
from proving one.” Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 245
(5th Cir. 2013) (second and third alterations in original). Under the ADA
as amended,
An individual meets the requirement of “being
regarded as having such an impairment” if the individual
establishes that he or she has been subjected to an action
prohibited under this chapter because of an actual or
perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life
activity.
42 U.S.C. § 12102(3)(A).
Tramp v. Associated Underwriters, Inc., 768 F.3d 793, 804-05 (8th Cir. 2014).
A physical “impairment” is defined in regulations promulgated by the Equal
Employment Opportunity Commission (EEOC) as “[a]ny physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or more body
systems, such as neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive, genitourinary,
immune, circulatory, hemic, lymphatic, skin, and endocrine.” 29 C.F.R. §
1630.2(h)(1).5 Consistent with this definition, it has been held “that to constitute an

neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”
42 U.S.C. § 12102(2)(B).
5

Because the EEOC has been granted “the authority to issue regulations
implementing the definition of disability in section 12102,” 42 U.S.C. § 12205a, this
definition must be given a high degree of deference. Cf. Fenney v. Dakota, Minnesota
& Eastern R. Co., 327 F.3d 707, 713-14 & n. 10 (8th Cir. 2003) (noting that amount
of deference given to EEOC regulations was an “open question” prior to passage of
the ADAAA).
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ADA impairment, a person’s obesity, even morbid obesity, must be the result of a
physiological condition.” E.E.O.C. v. Watkins Motor Lines, Inc., 463 F.3d 436, 443
(6th Cir. 2006) (truck driver’s weight of 405 pounds was not an impairment under
ADA since he was not aware of any physiological cause for his condition); see also
Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997) (physical characteristics
that are not the result of a physiological disorder are not considered impairments for
the purposes of determining either actual or perceived disability; generally, weight is
not such an impairment).
“It is important to distinguish between conditions that are impairments and
physical, psychological, environmental, cultural, and economic characteristics that are
not impairments.” 29 C.F.R. Pt 1630, App. (EEOC Interpretive Guidance on Title I of
the Americans with Disabilities Act).6 “The definition of the term ‘impairment’ does
not include physical characteristics such as eye color, hair color, left-handedness, or
height, weight, or muscle tone that are within ‘normal’ range and are not the result of
a physiological disorder.” Id. (emphasis supplied).7 “The definition, likewise, does not
include characteristic predisposition to illness or disease.” Id.
When he was asked during discovery to provide factual support for his alleged
disability, Morriss indicated he had no impairments that limited his ability to perform
the functional duties of the machinist position, he required no accommodations to

6

“[T]he agency’s policy statements, embodied in its compliance manual and
internal directives, ... reflect a body of experience and informed judgment to which
courts and litigants may properly resort for guidance.” Federal Exp. Corp. v.
Holowecki, 552 U.S. 389, 399 (2008).
7

One federal district court has read this language to mean that “the requirement
for a physiological cause is only required when a charging party’s weight is within the
normal range.” E.E.O.C. v. Resources for Human Development, Inc., 827 F.Supp.2d
688, 694 (E.D.La. 2011). A more sensible interpretation is that a person’s weight can
be an impairment when it is both (1) outside “normal” range and (2) the result of a
physiological disorder.
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perform the job duties safely, and he had no medical reports describing a disability.
(Plaintiff’s answers to interrogatories (filing 98-3) at 8.) Morriss further stated he “has
never had any work restrictions, and did not have any at the time of his application for
employment with Defendant.” (Id. at 10.) Morriss testified he did not think he had a
physical disability and was not aware of any underlying medical condition that
contributed to his obesity or made it difficult for him to lose weight. (Morriss depo.
(filing 98-2) at 18-19.) He stated his weight “has no physical limitations on me.” (Id.
at 19.) His personal physician likewise testified that Morriss did not suffer from any
medical condition associated with obesity, such as diabetes, hypertension, cardiac
disease, or sleep apnea, that Morriss had no limitations placed on his activities, and that
Morriss was fully capable of performing the work required by the machinist position.
(Plaintiff’s supporting brief (filing 100) at 3-4.) In answering a medical questionnaire
in connection with his employment application on May 5, 2011, Morriss described his
health as “good” and indicated he had no difficulties or limitations in his daily
activities. (Filing 98-20 at 7-8.) Morriss admits BNSF had no information to the
contrary. (Plaintiff’s supporting brief (filing 100) at 8-11.)
There is no evidence that Morriss’s obesity was caused by a physiological
disorder, nor is there any evidence that his weight affected one or more body systems.
In short, there is no evidence that Morriss had a physical impairment.8 Consequently,
his claim of discrimination based on actual disability necessarily fails.
There also is no evidence to support Morriss’s claim that BNSF regarded him
as having an impairment. It is undisputed that Morriss “was denied employment ... not
because of any then current health risk identified by BNSF ... , but because BNSF
believed by having a BMI of 40, [Morriss] would or could develop such health risks
in the future.” (Plaintiff’s supporting brief (filing 100) at 11.) As stated above, the
definition of impairment “does not include characteristic predisposition to illness or

8

In addition, there is no evidence that the alleged impairment substantially
limited one or more major life activities.
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disease.” 29 C.F.R. Pt 1630, App. (EEOC Interpretive Guidance on Title I of the
Americans with Disabilities Act).
Accordingly,
IT IS ORDERED:
1.

Defendant’s motion to restrict access to documents (filing 95) is granted,
and, pursuant to NEGenR 1.3(a)(1)(B)(ii), access to filings 97 and 98
shall be restricted to attorneys of record and court users.

2.

Defendant’s motion to strike reply brief (filing 118) is denied.

3.

Defendant’s motion for summary judgment (filing 96) is granted, and
Plaintiff’s action is dismissed with prejudice.

4.

Plaintiff’s motion for partial summary judgment (filing 99) is denied.

5.

Judgment shall be entered by separate document.

DATED this 20th day of November, 2014.

BY THE COURT:
s/ Richard G. Kopf

Senior United States District Judge
* This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility
for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work
or directs the user to some other site does not affect the opinion of the court.

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