Zinn v. Union Pacific Railroad Company
Filing
340
ORDER - Defendant's Motion to Sever Plaintiffs' Claims (Filing No. 331 ) is granted. Plaintiffs will be required to prosecute their claims in separate actions. The Clerk of Court is directed to modify the docket sheet to reflect that Quint on Harris is the plaintiff in this case. The Clerk of Court shall then open five new case files which shall be captioned to reflect that that each plaintiff is proceeding individually. The Clerk of Court shall copy all docket entries from the present file into each of the new case files and docket this Order in all cases. These cases should be denoted as being related and be assigned to the same judges. Each plaintiff shall file an amended complaint in his respective action by August 18, 2020 . Each amended complaint must be specific to the claims of only the named plaintiff in that case. Proposed case progression deadlines shall be submitted to bazis@ned.uscourts.gov. in each case within fourteen days of submission of the answer. Ordered by Magistrate Judge Susan M. Bazis. (LKO)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
QUINTON HARRIS, GEOFFREY MILLER,
NORMAN MOUNT, SCOTT ZINN, THOMAS
TAYLOR, and JOHN BAKER,
8:16CV381
Plaintiffs,
vs.
UNION PACIFIC RAILROAD COMPANY,
ORDER
Defendant.
This matter is before the Court on Defendant’s Motion to Sever Plaintiffs’ Claims (Filing
No. 331). For the reasons explained below, the motion will be granted.
BACKGROUND
An amended complaint alleging fourteen causes of action was filed by Plaintiffs Quinton
Harris (“Harris”), John Baker (“Baker”), Geoffrey Miller (“Miller), Norman Mount (“Mount”),
Thomas Taylor (“Taylor”), and Scott Zinn (“Zinn”) (collectively, “Plaintiffs”) on February 19,
2016. (Filing No. 20.) Plaintiffs, who are all current or former employees of Defendant, contend
that Defendant’s fitness-for-duty policy unlawfully discriminates against employees based on
disabilities and genetic information. Under Defendant’s fitness-for-duty program, employees
holding certain positions are required to disclose specified heath conditions and reportable heath
events so Defendant can evaluate the employee’s fitness for duty. These events generally include
cardiovascular conditions, seizures or loss of consciousness, significant vision or hearing changes,
diabetes treated with insulin, and sleep apnea. Plaintiffs maintain they were “excluded from their
positions on the basis of disabilities that had no effect on their ability to perform the essential
functions of their jobs.” (Filing No. 20.)
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Plaintiffs have asserted claims under the Americans with Disabilities Act (“ADA”): (1)
disparate treatment—alleging that through its fitness-for-duty program, Defendant engaged in a
pattern or practice of discrimination by implementing qualification standards and other criteria that
screen out individuals with disabilities; (2) disparate impact—alleging that the fitness-for-duty
program had an adverse impact on individuals with disabilities by, for example, screening them
out or tending to screen them out of work; and (3) unlawful medical inquiry—alleging violations
of 42 U.S.C. § 12112(d)(4)(A), which provides that an employer “shall not require a medical
examination and shall not make inquiries of an employee 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.” Plaintiffs Baker,
Miller, Mount, Taylor, and Zinn also assert claims under the Genetic Information
Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff et seq. Additionally, four plaintiffs allege
claims under the laws of their respective home states. (Filing No. 20.)
On August 17, 2018, Plaintiffs sought class certification on the ADA disparate treatment
claim. (Filing No. 240.) A class was certified under Federal Rule of Civil Procedure 23 on
February 5, 2019. (Filing No. 307.) Defendant appealed the order granting class certification to
the Eighth Circuit Court of Appeals, arguing Plaintiff did not meet Rule 23(b)(2)’s cohesiveness
requirement or Rule 23(b)(3)’s predominance and superiority requirement.1 Harris v. Union
Pacific Railroad Company, 953 F.3d 1030 (8th Cir. 2020). The Eighth Circuit Court of Appeals
reversed class certification, finding that the “individualized inquiries in this case cannot be
addressed in a manner consistent with Rule 23.” Id. at 1035. The Eighth Circuit concluded that
the district court cannot determine whether the fitness-for-duty policy “constituted a pattern or
practice of unlawful discrimination without considering whether the policy is job-related for each
of over 650 positions in question and whether the policy is consistent with business necessity in
each situation.” Id. The Eighth Circuit stated that in making this determination, the district court
“would have to consider whether [Defendant’s] policy is job-related and consistent with business
1
“Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member
of the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011). Rule 23(b)(3) requires that “questions of
law or fact common to class members predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. at 362.
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necessity in light of the medical conditions to which it applies,” which would require “answering
many individual questions.” Id. at 1036.
DISCUSSION
Defendant requests that the Court sever Plaintiffs’ claims into separate, single-plaintiff
actions. Defendant contends joinder is improper under Federal Rule of Civil Procedure 20(a)
because Plaintiffs’ claims neither arise out of the same transaction or occurrence, nor present
common questions of law or fact. Defendant argues Plaintiffs’ claims involve six different factual
circumstances, with each requiring individualized proof and defenses.
Plaintiffs contend,
however, that each of their claims depend upon their ability to demonstrate that they were wronged
as a result of Defendant’s fitness-for-duty policy and, therefore, the requirements for joinder under
Rule 20(a) are satisfied. Plaintiffs claim it is irrelevant that each of them suffered from different
disabilities, worked in different jobs, and for different supervisors because each of their removals
were decisions to remove a worker from service based on a reportable health event.
Under Federal Rule of Civil Procedure 20(a), persons may join in one action as plaintiffs
if two requirements are satisfied: (1) “they assert any right to relief jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences,” and (2) “any question of law or fact common to all plaintiffs will
arise in the action.” Fed. R. Civ. P. 20. The appropriate remedy for improper joinder of parties
is for the court to “drop a party” or “sever any claim against a party.” Fed. R. Civ. P. 21.
A.
Same Transaction or Occurrence
“The Eighth Circuit has embraced a liberal reading of the same transaction and occurrence
language, finding it permits joinder of all reasonably related claims for relief by or against different
parties.” Tridle v. Union Pacific Railroad Company, No. 8:08CV470, 2009 WL 1783558, at *2
(D. Neb. June 22, 2009) (internal quotation omitted). “[A]ll logically related events entitling a
person to institute legal action against another generally are regarded as comprising a transaction
or occurrence.” Mosley v. General Motors Corp, 497 F.2d 1330, 1333 (8th Cir. 1974). However,
“[i]n ascertaining whether a particular factual situation constitutes a single transaction or
occurrence for purposes of Rule 20, a case by case approach is generally pursued. No hard and
fast rules have been established under the rule.” Id. at 1333.
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The Court finds Plaintiffs cannot satisfy the same transaction or occurrence requirement
for joinder under the circumstances of this case. Although each of the individual plaintiff’s claims
are rooted in allegations that Defendant’s fitness-for-duty policy is discriminatory, the claims
nevertheless “hinge on distinct facts that are unique to each plaintiff and, thus, do not arise out of
the same transaction or occurrence.” Payne v. Grant County, Okla., No. CIV–14–362–M, 2014
WL 3349617, at *2 (W.D. Okla. July 8, 2014). See also Corley v. Google, Inc., 316 F.R.D. 277,
285 (N.D. Cal. 2016) (“[T]he transaction or occurrence requirement is not met where plaintiffs
would have to prove their claims or defendants would have to litigate their defenses on an
individualized basis”).
The Eighth Circuit has already concluded that the resolution of Plaintiffs’ ADA disparate
treatment claims will require individualized determinations as to whether each plaintiff’s fitnessfor-duty evaluation was job-related and consistent with business necessity. Harris, 953 F.3d at
1035. The Eighth Circuit found the district court will have to assess whether the fitness-for-duty
policy is “job-related and consistent with business necessity in light of the medical conditions to
which it applies.”
Id. at 1036. The district court will also have to “consider the unique
circumstances of each position in question to determine whether the policy is unlawfully
discriminatory.” Id. at 1037. Therefore, the determination of whether the fitness-for-duty policy
is job-related and consistent with business necessity will require an examination of each plaintiff’s
medical condition, position, and job responsibilities.
Here, Plaintiffs have distinct medical conditions and were subject to fitness-for-duty
evaluations for different reasons. Plaintiffs worked in separate locations and held different
positions with distinct job duties. Harris suffers from epilepsy and worked as a mechanical service
operator in Little Rock, Arkansas. (Filing No. 243.) Harris’ position required him to move
locomotives, perform service work, and operate forklifts. (Id.) Miller, who suffered from
cardiomyopathy, was a signalman in Delta, Ohio. (Filing No. 244.) Miller’s job duties included
digging out and placing signal cabins, running cable and wire, and operating backhoes and heavy
trucks. (Id.) Mount, who has a pacemaker, was employed as a signal maintainer in Illinois. (Filing
No. 245.) Mount’s position required him to maintain signal equipment and address equipmentrelated safety issues. (Id.) Taylor worked as a signalman in Berkley, Illinois. (Filing No. 246.)
Taylor, who suffers from epilepsy, was responsible for the installation, inspection, maintenance,
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and repair of signal equipment. (Id.) Zinn, who was employed by Defendant as a ballast tamper
operator in Wilcox, Arizona, suffers from post-traumatic stress disorder and substance abuse
problems. (Filing No. 247.) Zinn’s responsibilities as a ballast tamper included the operation of
on-track machinery. (Id.) Baker worked as a holster in Little Rock, Arkansas. (Filing No. 242.)
His position involved attending to switches in the rail yard, breaking down trains, and switching
trains from one track to another. (Id.) Baker was subject to a fitness-for-duty evaluation after
experiencing syncopal episodes. (Id.) The factual differences between each of the plaintiff’s
situations are legally significant and resolution of each plaintiff’s claims will require an
individualized analysis.
Like Plaintiffs’ ADA disparate treatment claims, the other claims will involve
individualized elements of proof. For instance, Plaintiffs’ ADA claims will also require each
plaintiff to offer individualized proof that he had a disability and was qualified2 under the ADA.
See Tramp v. Assoc. Underwriters, Inc., 768 F.3d 793, 804 (8th Cir. 2014) (“Though the ADAAA
makes it easier to prove a disability, it does not absolve a party from proving one.”); Hutchinson
v. United Parcel Serv., Inc., 883 F. Supp. 379, 398 (N.D. Iowa 1995) (stating that the ADA requires
“an individualized assessment of [an employee’s] capacity to perform the essential functions of
her job”). The issue of whether a reasonable accommodation could have been made is also a
“highly fact-specific inquiry that depends on the circumstances of each case.” Crowder v. City of
Manila, Arkansas, 796 F. App’x 325, 326 (8th Cir. 2020). Moreover, the unlawful medical inquiry
and GINA claims require individualized proof of a tangible injury or injury-in-fact. See Higgins v.
Union Pac. R.C. Co., 303 F.Supp.3d 945, 962 (D. Neb. 2018). Plaintiffs cannot solely rely upon
an alleged discriminatory policy to establish their claims.
Because evaluation of Plaintiffs’ claims and Defendant’s defenses will require many
necessary, individualized assessments, Rule 20’s single transaction or occurrence requirement is
not satisfied. Here, the mere allegation of a discriminatory policy does not support joinder. See
McDowell v. Morgan Stanley & Co., 645 F.Supp.2d 690, 695 (N.D. Ill. 2009) (granting motion to
sever, reasoning “[t]hough Morgan Stanley’s alleged discriminatory conduct may have occurred
because of a company-wide policy, that conduct was rooted in individual decisions, made by
A “qualified individual” is “an individual who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
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different supervisors, at different times, and in four different offices”). Accordingly, severance is
warranted.
B.
Common Question of Law or Fact
Even if Plaintiffs could satisfy the same transaction of occurrence requirement of Rule 20,
severance would nevertheless be appropriate as there is no indication that “a question of law or
fact common to all the parties will arise in the action,” as is also required for joinder under Rule
20. Mosley v. General Motors Corp, 497 F.2d 1330, 1334 (8th Cir. 1974). Plaintiffs contend the
common question of law or fact applicable to each of the claims in this action, including those
under the ADA, GINA, and state law, is whether Defendant’s fitness-for-duty policy is
discriminatory. Plaintiffs maintain the fact that their claims will require individual elements of
proof is not grounds for severance.
After careful consideration, the Court finds Plaintiffs’ claims do not share common
questions of law or fact. Although each plaintiff was evaluated for fitness for duty, they were each
evaluated for a different reason. Plaintiffs suffered from varying medical conditions and held
different positions with different job responsibilities. They also worked in different locations. The
factual differences between each plaintiff’s situation will impact, for example, the determination
of whether Defendant could make reasonable accommodations for a given plaintiff due to that
plaintiff’s medical condition and job functions. The unique assessments necessary to evaluate
each plaintiff’s claim make joinder improper.
Plaintiffs’ assertion of claims under the same laws does not automatically establish a
common question of law. See Smith v. Planned Parenthood of St. Louis Region, 225 F.R.D. 233,
246 (E.D. Mo. 2004) (“[T]he mere fact that [the plaintiffs’] claims arise under the same law does
not necessarily establish a common question of law or fact”.). Moreover, Plaintiffs’ claims do not
all overlap. Plaintiffs Baker, Miller, Mount, Taylor, and Zinn assert claims under GINA and four
of the plaintiffs allege claims under the laws of their respective home states. Because Plaintiffs’
claims do not share common questions of law or fact, the motion to sever will be granted.
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C.
Jury Confusion and Prejudice
Even if the requirements of Rule 20 could be satisfied, severance is nonetheless
appropriate. “[D]istrict courts have the discretion to refuse joinder in the interest of avoiding
prejudice and delay, ensuring judicial economy, or safeguarding principles of fundamental
fairness, even where standard for joinder under Rule 20 of the Federal Rules of Civil Procedure is
otherwise met.” Black Elk v. Roy, No. 18-CV-3255, 2019 WL 885641, at *1 (D. Minn. Feb. 5,
2019) (quotation omitted). See also Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 615,
521 (5th Cir. 2010) (“[D]istrict courts have considerable discretion to deny joinder when it would
not facilitate judicial economy and when different witnesses and documentary proof would be
required for plaintiffs’ claims.”). Based on these considerations, the Court finds severance
warranted.
If Plaintiffs’ claims were tried together, the risk of jury confusion and prejudice to
Defendant—and potentially individual plaintiffs—would be significant given the factual and legal
differences between each plaintiff’s claims. In evaluating the claims, the jury would be required
to determine the essential functions of six jobs and evaluate whether six individuals with different
medical conditions could perform his respective job. The jury would need to understand each
individual plaintiff’s job responsibilities and work history. The jury would also be expected to
understand each plaintiff’s medical condition and the limitations caused by that condition. To do
so, the jury would have to consider evidence related to each specific plaintiff. Such evidence
would include medical records, employment records, and testimony from treating physicians,
experts and other witnesses. The jury would then need to compartmentalize this evidence for each
individual plaintiff. This would be an extremely confusing and difficult undertaking.
As recognized by other courts, in situations such as this where evidence is highly
individualized, the risk of jury confusion and prejudice is significant. “The jury may simply
resolve the confusion by considering all the evidence to pertain to all the plaintiffs’ claims, even
when it is relevant to only one plaintiff’s case.” Bailey v. Northern Trust Co., 196 F.R.D. 513, 518
(N.D. Ill. 2000). See also Grayson v. K-Mart Corp, 849 F. Supp. 785, 790 (N.D. Ga. 1994)
(“There is a tremendous danger that one or two plaintiff’s unique circumstances could bias the jury
against defendant generally, thus, prejudicing defendant with respect to the other plaintiffs’
claims.”); Weir v. Litton Bionetics, Inc., Civ. No. H–85–2545, 1986 WL 11608, at *6-7 (D. Md.
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May 29, 1986) (granting motion to sever stating that “in view of the different facts which are
pertinent to each of [the] claims, defendant would suffer prejudice if the claims were tried
together”). The Court concludes that due to the number of facts that are only relevant to individual
plaintiff’s claims, jury confusion and prejudice would result if the claims were tried together.
Plaintiffs contend severance would result in duplicative discovery and motion practice.
Plaintiffs also maintain that severance is premature and should not be considered until after the
close of discovery and resolution of summary judgment. Plaintiffs argue that proper evaluation of
the risks of jury confusion and prejudice can only occur when it is known which claims will
proceed to trial. The Court finds Plaintiffs’ arguments unconvincing.
This case was filed on November 25, 2015 and the amended complaint was filed on
February 19, 2016. Since that time, a significant amount of discovery has taken place. To the
extent some discovery remains, it is probable, based upon the claims asserted, that the discovery
is plaintiff-specific. To the extent some remaining discovery relates to all Plaintiffs’ claims,
counsel may coordinate this discovery to prevent duplication. Moreover, because the evidence
that will be necessary in motion practice will be largely individualized and plaintiff-specific,
motion practice will not be complicated through severance. To the contrary, separate summary
judgment briefing for each plaintiff’s claims may clarify issues as the briefing will be more focused
and hopefully more succinct. The same is true regarding the presentation of evidence at trial.
Although certain evidence may need to be offered at each individual trial, any inconvenience
which may be caused by doing so is outweighed by the confusion to the jury and prejudice that
would result from proceeding jointly with Plaintiffs’ claims.
Based on the facts and claims presented in this case, the Court finds the prerequisites for
joinder under Rule 20(a) have not been satisfied. Further, the Court finds that allowing Plaintiffs’
claims to proceed together would lead to jury confusion and prejudice. Accordingly, the Court
will sever Plaintiffs’ claims and allow each plaintiff to proceed in a separate action.
IT IS ORDERED:
1.
Defendant’s Motion to Sever Plaintiffs’ Claims (Filing No. 331) is granted.
Plaintiffs will be required to prosecute their claims in separate actions.
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2.
The Clerk of Court is directed to modify the docket sheet to reflect that Quinton
Harris is the plaintiff in this case. The Clerk of Court shall then open five new case files which
shall be captioned to reflect that that each plaintiff is proceeding individually. The Clerk of Court
shall copy all docket entries from the present file into each of the new case files and docket this
Order in all cases. These cases should be denoted as being related and be assigned to the same
judges.
3.
Each plaintiff shall file an amended complaint in his respective action by August
18, 2020. Each amended complaint must be specific to the claims of only the named plaintiff in
that case.
4.
Proposed case progression deadlines shall be submitted to bazis@ned.uscourts.gov.
in each case within fourteen days of submission of the answer.
Dated this 5th day of August, 2020.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge
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