Baldwin v. Union Pacific Railroad Co.

Filing 220

MEMORANDUM AND ORDER - Plaintiff's motion for new trial, Filing No. 209 , is denied. Ordered by Senior Judge Joseph F. Bataillon. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN C. BALDWIN,
Plaintiff,

8:22CV87

vs.
MEMORANDUM AND ORDER
UNION PACIFIC RAILROAD CO.,
Defendant.
This matter comes before the Court on Plaintiff’s, John C. Baldwin’s, motion for
new trial. Filing No. 209. This is an action for disability discrimination in employment
under the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq. Baldwin’s claims for
disability discrimination and Union Pacific’s affirmative defenses of direct threat and
business necessity were tried to a jury in November 2023. The jury returned a verdict in
favor of Baldwin on his disparate-treatment claim but in favor of Union Pacific on its direct
threat defense. For the reasons set forth herein, the motion for a new trial is denied.
I.

BACKGROUND
At trial, the evidence showed Baldwin worked as an electrician and later electrician

federal inspector for Union Pacific beginning in 1997. Filing No. 195 at 24–25; Trial Exhibit
304. In 2010, Baldwin had hip replacement surgery due to degenerative arthritis but
continued his work as an electrician without restrictions. Trial Exhibit 1 at 1–2. On June
28, 2016, Baldwin’s supervisor observed him performing work in a tight locomotive
compartment while wearing a Tyvek suit. Id. at 7. The supervisor reported to the director
of locomotive operations at Hinkle, J. Russell Lowe, that Baldwin was sweating, cramping,
and limping. Filing No. 195 at 31–34.

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Lowe subsequently referred Baldwin for a supervisor-initiated fitness-for-duty
evaluation with Union Pacific’s health and medical services. Filing No. 195 at 37; Trial
Exhibit 14. After the fitness-for-duty evaluation, Baldwin was referred for an occupational
medical evaluation with Dr. James Fulper who concluded Baldwin could return to work
with no restrictions. Trial Exhibit 1 at 7, 10. However, Union Pacific had remaining
concerns about Baldwin’s weakness and stamina, and its chief medical officer, Dr. John
Holland, ordered Baldwin to undergo an exercise tolerance test and functional capacity
evaluation. Id. at 10–11.
Baldwin scored 7 METS on the exercise tolerance test pursuant to the Bruce
protocol.

Trial Exhibit 49 at 2.

The ETT was negative for ischemia but noted a

hypertensive response and a deconditioned state. Id. Holland testified an employee with
an ETT lower than 8 METS has a “low aerobic capacity” and consequently requires
ongoing work restrictions of “no more than light physical work.” Filing No. 196 at 129. In
contrast, Baldwin’s functional capacity evaluation concluded he met all the physical
requirements for his electrician job. Trial Exhibit 44.
Holland issued a memo on his fitness-for-duty determination on August 26, 2016.
Trial Exhibit 49. He stated he had received and reviewed Fulper’s occupational medicine
evaluation, the ETT, and the functional capacity evaluation. Trial Exhibit 49 at 2. Holland
opined that Baldwin “in his statement to Dr. Fulper appears to minimize his problems
walking.” Id. at 3. Holland stated that Baldwin’s ETT “shows a moderately low level of
aerobic condition.” Id. This, combined with the fact Baldwin is obese, meant that, in
Holland’s opinion, “he could only safely do physical exertion in a light work category.” Id.
Holland also expressed concern about Baldwin’s “significant blood pressure elevation at
maximal exercise” posing a significant risk of a “cardiovascular event.”
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Id. Holland

concluded that “Baldwin’s low level of aerobic conditioning and his overall low level of
physical conditioning, pose significant, imminent and unacceptable safety risk to him and
others if he were to work as a Diesel Electrician, or in similar jobs.” Id.; Filing No. 196 at
128–30. Consequently, Holland imposed the following work restrictions: not operating
vehicles, not working on or near moving trains, not operating cranes, and not working at
unprotected heights above four feet. Trial Exhibit 49 at 3. Lacey Kavan, the senior
director

of operation

support

concluded

Baldwin’s

restrictions

could

not be

accommodated. Trial Exhibit 53.
Baldwin spoke with Holland about the work restrictions in a phone call in early
September 2016. Trial Exhibit 1 at 15. As a result of this phone call, Holland agreed to
issue a revised fitness-for-duty memo and to allow Baldwin to take a second ETT. Id.
Holland issued the revised memo on October 20. Trial Exhibit 69. He removed the
restriction on operating cranes; maintained the restrictions on driving, working near
moving trains, not working at heights; and added restrictions for climbing on and off
locomotives, not performing prolonged work in high heat and humidity, and not performing
working involving more than light physical exertion. Id. at 3. Kavan again indicated the
restrictions interfered with Baldwin’s essential job functions and could not be
accommodated. Trial Exhibit 71.
Baldwin underwent a second ETT on November 22, 2016. Trial Exhibit 84; Trial
Exhibit 102 at 3. This time, Baldwin scored 8.1 METS. Trial Exhibit 83. The test was
stopped due to “[s]ymptoms of fatigue and leg turnover rate.” Id. at 1. Baldwin showed
“[f]air conditioning and no ischemic chest symptoms” but the report indicated “suspect[ed]
HTN [high blood pressure] and diffuse myocardial wall stress mechanism.” Id.

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Holland reviewed the results of the second ETT and noted Baldwin’s “slight
improvement in aerobic capacity.” Trial Exhibit 87 at 1; Trial Exhibit 102. He concluded
the test nevertheless showed “multiple borderline ECG abnormalities with exercise, that
reversed after 1-2 minutes of rest.” Trial Exhibit 87 at 1. Holland said that a cardiologist
who had reviewed the second ETT results, Dr. Edward Ricketts, indicated it “was not
normal and raised underl[y]ing concerns that required further clinical evaluation.”

Id.

Based on these results, Holland declined to change Baldwin’s work restrictions. Id.
On December 1, 2016, Union Pacific requested a record review of Baldwin’s
fitness-for-duty determination by Dr. Brian Lowes, a heart failure specialist at the
University of Nebraska.

Trial Exhibit 92. Lowes reviewed Baldwin’s two ETTs and

Holland’s updated fitness-for-duty memorandum.

Trial Exhibit 106. Lowes concluded

that Baldwin’s exercise capacity was not normal for his age, and he lacked the exercise
capacity to do his job without excessive fatigue, although he stated “[h]is risk of acute
sudden incapacitation is likely not significantly elevated.”
“[w]orking under extreme environmental

Id. at 1.

He opined that

conditions would increase his risk of

cardiovascular events.” Id. at 2. Thus, he concluded “[i]t would be reasonable for Mr.
Baldwin to perform sedentary work at 60% of his aerobic capacity in a controlled
environment (indoor or office).” Id. Union Pacific maintained the previously imposed
restrictions, and Baldwin was consequently unable to return to his job as an electrician.
Baldwin testified that he had difficulty working in the locomotive on the day he was
flagged for a FFD evaluation because of the high temperatures and cramped conditions,
and that his hip issues were the limiting factor in completing the ETTs, not any heart
issues. Filing No. 197 at 218–22.

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The Court instructed the jury on Baldwin’s causes of action: disparate treatment
based on an actual disability, disparate treatment based on a perceived disability,
disparate treatment based on a record of disability, disparate treatment based on a
qualification standard, and failure to accommodate. Filing No. 184 at 19–29. The Court
also instructed the jury on Union Pacific’s defenses of direct threat and business necessity
and provided an instruction on “business judgment.” Id. at 30–33.
The jury returned a verdict in favor of Union Pacific on Baldwin’s claims for
disparate treatment based on an actual disability, disparate treatment based on a record
of disability, disparate treatment based on a qualification standard, and failure to
accommodate.

Filing No. 192 at 1–2. It found for Baldwin on his claim of disparate

treatment based on a perceived disability but found for Union Pacific on its affirmative
defense that Baldwin posed a direct threat.

Id.

Accordingly, the jury awarded no

damages. Id. at 3.
II.

ANALYSIS
Baldwin argues he is entitled to a new trial for two primary reasons: the evidence

does not support the jury’s verdict and the jury instructions were erroneous. The Court
will address these alleged errors in turn after setting forth the applicable legal framework.
A. Standard of Review
A motion for new trial is governed by Federal Rule of Civil Procedure 59. The
standard for granting a new trial is whether the verdict is against the great weight of the
evidence. Butler v. French, 83 F.3d 942, 944 (8th Cir. 1996). “[M]otions for new trials are
generally disfavored.” Williams v. Baum, 48 F.4th 571, 573 (8th Cir. 2022). The key
question is whether a new trial is necessary to prevent a “miscarriage of justice,” which is
a “stringent standard.” Id. “In determining whether to grant a new trial, a district judge is
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not free to reweigh the evidence and set aside the jury verdict merely because the jury
could have drawn different inferences or conclusions or because judges feel that other
results are more reasonable.” Lincoln Composites, Inc. v. Firetrace USA, LLC, 825 F.3d
453, 465 (8th Cir. 2016). “Unless justice requires otherwise, no error in admitting or
excluding evidence—or any other error by the court or a party—is ground for granting a
new trial . . .. At every stage of the proceeding, the court must disregard all errors and
defects that do not affect any party’s substantial rights.” Fed. R. Civ. P. 61.
“Where a party contends that an instruction was improperly given to the jury,
reversal is appropriate only where the erroneously given instruction affects substantial
rights.” Am. Fam. Mut. Ins. Co. v. Hollander, 705 F.3d 339, 355 (8th Cir. 2013) (quoting
Harrell v. Madison Cnty. Miss. Mote Co., 370 F.3d 760, 762 (8th Cir. 2004)).

The

appropriate inquiry is whether the instructions “taken as a whole and viewed in light of the
evidence and the applicable law, fairly and adequately submitted the issues in the case
to the jury.” Wallace v. Pharma Medica Rsch., Inc., 78 F.4th 402, 406 (8th Cir. 2023)
(quoting Barkley, Inc. v. Gabriel Bros., Inc., 829 F.3d 1030, 1042 (8th Cir. 2016)).
B. Applicable Law
Under the ADA, an employer shall not “discriminate against a qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Discrimination includes
“utilizing standards, criteria, or methods of administration . . . that have the effect of
discrimination on the basis of disability” or “not making reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual with a
disability.” 42 U.S.C. § 12112(b). To establish an ADA violation, a plaintiff must show (1)
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that he or she was disabled within the meaning of the ADA; (2) that he or she was qualified
to perform the essential functions of the job with or without a reasonable accommodation;
and (3) a causal connection between an adverse employment action and the disability.
Evans v. Coop. Response Ctr., Inc., 996 F.3d 539, 545 (8th Cir. 2021). “Disability” is
defined as “a physical or mental impairment that substantially limits one or more major
life activities of such individual”; “a record of such an impairment”; or “being regarded as
having such an impairment.” 42 U.S.C. § 12012(1).
Employers “may include a requirement that an individual shall not pose a direct
threat to the health or safety of other individuals in the workplace.” 42 U.S.C. § 12113(b).
“The term ‘direct threat’ means a significant risk to the health or safety of others that
cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). The Code
of Federal Regulations expands on the definition of “direct threat” as follows:
Direct Threat means a significant risk of substantial harm to the health or
safety of the individual or others that cannot be eliminated or reduced by
reasonable accommodation. The determination that an individual poses a
“direct threat” shall be based on 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.
29 C.F.R. § 1630.2(r); see also Nunes v. Wal–Mart Stores, Inc., 164 F.3d 1243, 1247 (9th
Cir. 1999) (imposing similar standards). The employer bears the burden of proving a

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direct-threat affirmative defense to a charge of discrimination.

E.E.O.C. v. Wal-Mart

Stores, Inc., 477 F.3d 561, 571 (8th Cir. 2007).
C. Insufficient Evidence
Baldwin sets forth various arguments for why he believes the evidence was
insufficient to support the jury’s verdict or why the jury’s verdict is inconsistent. First, he
argues Union Pacific offered no evidence to support its direct threat affirmative defense
because 1) the evidence Baldwin failed the 10 Mets ETT standard was not sufficiently
individualized to constitute direct threat evidence; 2) Union Pacific failed to prove a
significant risk of harm; 3) Union Pacific did not show it conducted an individualized
assessment of Baldwin’s risk of harm before imposing work restrictions; 4) Union Pacific
disregarded the best available evidence; 5) Union Pacific offered no proof of the factors
set forth in the regulations: the duration of the risk, the nature and severity of the potential
harm, the likelihood that the potential harm will occur, and the imminence of the potential
harm. Baldwin also argues the jury’s verdict on Baldwin’s unlawful screening claim is
against the weight of the evidence and inconsistent.
The evidence presented at trial belies Baldwin’s arguments about the sufficiency
of the evidence; Union Pacific presented adequate evidence to support the jury verdict in
favor of its direct-threat affirmative defense. Baldwin’s supervisor observed him to have
exhibited difficulties on the job, including unsteady walking, trouble climbing ladders, and
fatigue and weakness. Filing No. 196 at 142–48; Trial Exhibit 14. Baldwin obtained
unsatisfactory results on the ETTs and exhibited a hypertensive response and poor
physical conditioning. Trial Exhibit 49; Trial Exhibit 83. Holland testified that he relied on
medical literature indicating a hypertensive response to exercise and low exercise
capacity (such as achieving under 10 METS on the ETT) was a powerful predictor of
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cardiovascular events. Filing No. 196 at 134–45. Based on all these factors, Holland
concluded that Baldwin would have been at risk of an “adverse cardiovascular event, that
might occur if he were to do prolonged work of moderate to strenuous” that was required
of his job. Filing No. 195 at 223–24, 241–44; Filing No. 196 at 134, 147; Trial Exhibit 7.
Dr. Lowes, the UNMC cardiologist, also concluded that Baldwin’s exercise capacity was
not normal for his age and that exertion would increase the risk of an adverse
cardiovascular event. Filing No. 198 at 17–59; Trial Exhibit 106. Taken as a whole, this
is sufficient to demonstrate that Union Pacific undertook a timely, individualized
assessment and concluded Baldwin posed a direct threat to safety based on the required
factors.
Baldwin’s argument Union Pacific did not rely on the best available evidence asks
the Court to discredit Holland’s testimony in its entirety and find the jury should not have
relied on it in reaching its verdict. But the district court “is not free to reweigh the evidence
and set aside the jury verdict merely because the jury could have drawn different
inferences or conclusions or because judges feel that other results are more reasonable.”
Lincoln Composites, 825 F.3d at 465. The jury apparently believed Holland and because
his testimony, in conjunction with the other evidence, supports the jury’s verdict, the Court
is not free to grant a new trial on that basis.
The Court also disagrees that the jury’s verdict is inconsistent and that the verdict
on Baldwin’s unlawful screening claim is against the weight of the evidence. Baldwin
chose to present a multifaceted case by simultaneously arguing that he was discriminated
against on the basis of actual, perceived, and record of disabilities and that he suffered
disparate treatment based on a qualification standard. The jury apparently believed that
he had been discriminated against only on the basis of a perceived disability and rejected
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his other claims. There are various reasons the jury could have so determined, such as
disbelieving there was a qualification standard at all or concluding any standard did not
have a tendency to screen out disabled persons. A mixed verdict alone is not proof of an
inconsistent verdict or a fault in the evidence. Furthermore, because the jury found for
Union Pacific on its direct threat defense, any dispute about its reasoning on Baldwin’s
claims is rendered moot. The Court is not required to speculate on the basis for the jury’s
determination when it is grounded in the evidence presented at trial and when an
affirmative defense precludes liability. While Baldwin argued for a different theory of the
case, the fact the jury did not buy his argument does not render the verdict inconsistent
or unsupported by the evidence. Lastly, to the extent Baldwin’s argument is premised on
the supposed internal incompatibility of the jury’s verdicts (e.g., finding that he did not
have an actual disability but that he posed a direct threat), he waived such argument by
not objecting to the verdict when it was delivered. See Spencer v. Young, 495 F.3d 945,
950 (8th Cir. 2007) (“[F]ailure ‘to object to any asserted inconsistencies [or to] move for
resubmission of the inconsistent verdict before the jury is discharged’ waives the right to
a new trial.” (alteration in original) (quoting Brode v. Cohn, 966 F.2d 1237, 1239 (8th Cir.
1992))).
D. Erroneous Jury Instructions
Baldwin next argues the jury instructions were erroneous because 1) they misled
the jury on the applicable burdens of proof; 2) the court gave an instruction on business
judgment that conflicted with the direct threat instruction; and 3) the instruction on
Baldwin’s unlawful screening claim misstated the law.
The jury instructions, taken as a whole, correctly state the law. While the burden
of proof was not explicitly stated in Instruction 29 regarding direct threat, the instruction
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as a whole makes clear that it is Union Pacific who is required to demonstrate the
necessary elements. First, the instruction is titled a “Defense.” Second, the only logical
reading of the instruction is that Union Pacific is required prove Baldwin posed a threat; it
is a nonsensical and strained reading to construe the instruction to require Baldwin to
present evidence of his own risk of being a threat. Third, certain of the instructions on
Baldwin’s claims were similarly worded in that they did not expressly repeat it was
Baldwin’s burden to prove his claims, and therefore this affirmative defense instruction is
consistent. See, e.g., Filing No. 184 at 19 (Instruction 16 regarding disparate treatment
based on an actual disability, worded similarly to Instruction 29).
Baldwin also argues the business judgment instruction conflicted with the direct
threat instruction. Instruction 27 on business judgment required the jury not to return a
verdict for Baldwin “just because you might disagree with the defendant’s decision or
believe it to be harsh or unreasonable.” Baldwin argues this contradicts the standard for
direct threat which requires a determination of direct threat to be based on a “reasonable
medical judgment.” Filing No. 210 at 32. These instructions are not contradictory. The
business judgment instruction makes it clear that the harshness or unreasonableness of
the employer’s decision cannot be the sole reason for finding for the employee, but it does
not preclude the jury from thereafter correctly applying the direct threat standard as
enumerated in Instruction 29. Furthermore, the fact the jury found for Baldwin on one of
his claims but not the others is evidence that it correctly based its decision on an
application of the instructed law as to each separate claim rather than a misapprehension
that the business judgment instruction prevented it from finding for Baldwin as he implies.
There is no error in Instruction 27 on business judgment.

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Lastly, the instruction regarding the unlawful screening claim did not misstate the
law. The Court correctly instructed that Baldwin was required to prove both a qualification
standard and Union Pacific’s intent to discriminate when advancing a theory of disparate
treatment by means of a qualification standard. That the Court laid out the various ways
Baldwin could do this did not mean it set out conflicting burdens of proof as he claims; the
instruction is clear that Baldwin can prove discriminatory intent either by showing the
screening standard was facially discriminatory or by showing it was used as a pretext.
Furthermore, because the jury found for Union Pacific on its direct threat defense, any
alleged error in the unlawful screening instruction is harmless.
III.

CONCLUSION
The Court finds there is no miscarriage of justice such as to warrant a new trial.

The jury instructions, taken as a whole, fairly and adequately presented the issues to the
jury, and there is sufficient evidence to support the jury’s verdict. Accordingly,
IT IS ORDERED:
1. Plaintiff’s motion for new trial, Filing No. 209, is denied.

Dated this 25th day of September, 2024.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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