Mlsna, Mark v. Union Pacific Railroad

Filing 172

ORDER denying 141 Motion for Summary Judgment by Defendant Union Pacific Railroad. Plaintiff is to produce Mlsna's requested medical records by 4/19/2021. Plaintiff may file at any time a stand-alone motion in limine as to the admissibility of his application for disability benefits after learning of his not being recertified as a train conductor or medical records unrelated to his hearing deficit, except not later than 5/18/2021, and defendant may have 14 days to respond. Signed by District Judge William M. Conley on 3/30/2021. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MARK MLSNA,
Plaintiff,

ORDER

v.
18-cv-37-wmc
UNION PACIFIC RAILROAD,
Defendant.
In this case, plaintiff Mark Mlsna claims that defendant Union Pacific Railroad
violated the Americans with Disabilities Act (“ADA”) in declining to recertify him as a
train conductor because of his hearing impairment. On September 14, 2020, the Seventh
Circuit issued a decision reversing this court’s grant of summary judgment in favor of
defendant Union Pacific Railroad and remanded for further proceedings. Mlsna v. Union
Pacific Railroad, 975 F.3d 629 (7th Cir. 2020). After receiving the mandate from the
Seventh Circuit, this court reset the schedule through trial. (Dkt. #139.) In doing so, the
court declined to set a new dispositive motion deadline given the Seventh Circuit’s ruling
regarding the existence of disputed issues of material fact remaining for trial as to the
essential functions of Mlsna’s position and reasonable accommodations.
Nevertheless, defendant has now filed an unsolicited second motion for summary
judgment. (Dkt. #141.) In that motion, defendant once again presents evidence of
Mlsna’s sworn statement that he had a medical condition preventing him from working in
a 2015 application for disability benefits from the Railroad Retirement Board, although
this time recasting its original (and since abandoned) estoppel argument.

Instead,

defendant now argues that his sworn statement “negates” one of the essential elements of

his ADA claim -- that he is qualified to perform the essential functions of his job with or
without a reasonable accommodation.
Whether or not to consider a second summary judgment motion is "essentially a
decision concerning case management," reserved for the court's discretion.

Gordon v.

Veneman, 61 F. App'x 296, 298 (7th Cir. 2003). Such a motion may be appropriate if there
exists an intervening change in controlling law, new evidence, an expanded factual record,
or a need to correct a clear error or prevent manifest injustice. Whitford v. Boglino, 63 F.3d
527, 530 (7th Cir. 1995). None of these circumstances appear to be present here, and
having been presented with no other compelling reason to consider a second summary
judgment motion -- especially after the first was litigated not just before this court, but also
on appeal to the Seventh Circuit -- the court will deny defendant's motion.
Having said that, the court recognizes that questions remain for trial as to the
introduction of Mlsna’s disability application and other, as-yet-undisclosed medical
records, as well as the relevance of either in the liability phase of trial. More specifically,
on March 12, 2021, Judge Crocker granted plaintiff’s motion to quash a subpoena to his
medical provider seeking plaintiff’s complete medical record. (Op. & Order 3/12/2021
(dkt. #169).) In that order, Judge Crocker explained:
For years, this court’s consistent position has been that it will
not compel parties or witnesses in a lawsuit to disclose medical
or psychological information that they wish to keep
confidential. But such a decision has consequences. A party
cannot put a medical issue into play and then prevent his
opponent from reviewing records relevant to that issue. In
such a situation, the party either has to forgo the claim or
disclose the records.
In the instant case, the parties hotly dispute whether any

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medical issue other than plaintiff’s hearing loss is relevant after
remand. This dispute is tangentially presented by defendant’s
December 17, 202[0] motion for summary judgment (dkt.
141), but there is no guarantee that Judge Conley will decide - or even indicate -- whether plaintiffs’ medical records require
a forgo-or-disclose decision by plaintiff. If the court’s summary
judgment decision does not provide sufficient guidance, then
defendant must promptly file a stand-alone motion in limine
on this issue so that it can be resolved quickly.
(Id. at 2.)
Given the Seventh Circuit’s ruling, plaintiff understandably argues that the only
issues for remand concern the validity of the stated reason for his discharge: Mlsna’s
hearing deficit rendering him unable to perform an essential function of a train conductor
and the lack of a reasonable accommodation. However, the court agrees with defendant
that plaintiff goes too far in asserting that the Seventh Circuit “expressly decided that Mlsna
could perform his essential functions.” (Def. Br. (dkt. #148) 11.). Instead, that court
remanded because triable issues of fact must be addressed to decide that question, just as
there are factual disputes that must be resolved with respect to whether a reasonable
accommodation was available. Mlsna, 975 F.3d at 637, 638. Similarly, while plaintiff
makes a number of creative arguments as to why defendant is now precluded from raising
other disabilities with respect to Mlsna’s ability to perform essential functions unrelated
to his hearing loss, plaintiff essentially concedes that the Seventh Circuit did not do so
explicitly. Nor can such a ruling be reasonably read into that court’s remand order, since
it was never addressed by this court in the first instance, nor discussed by the Seventh
Circuit on appeal.

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A stronger argument by plaintiff is that any evidence of his sworn statement of
disability or other medical evidence discovered following Union Pacific’s determination
that he was not qualified as a train conductor is not relevant to liability, but only as to his
possible damages. First, as plaintiff points out, this certainly seems to be the holding of the
Seventh Circuit in Rooney v. Koch Air, LLC, 410 F.3d 376 (7th Cir. 2005), which found
“after-acquired evidence” of disqualification was not relevant to determine liability under
the ADA. Id. at 382. Tellingly, defendant does not even address the Rooney decision in its
reply brief. Defendant’s silence is also understandable given current Seventh Circuit law,
although there would appear to be a persuasive argument to the contrary. See Anthony v.
Trax Int’l Corp., 955 F.3d 1123, 1131 (9th Cir. 2020) (criticizing Rooney for failing to
recognize the distinction between the relevance of after-acquired evidence to an age
discrimination claim under the ADEA considered by the Supreme Court in McKennan v.
Nashville Banner Publishing Co., 513 U.S. 352 (1995), compared to a disability claim under
the ADA). However, this court must follow current Seventh Circuit law.1 Regardless, even

The holding in Rooney would also seem to be in some tension with other Seventh Circuit cases
permitting after-acquired evidence to be considered to determine whether an individual is
“qualified” within the meaning of the ADA. For example, in Johnson v. ExxonMobil Corp., 426 F.3d
887 (7th Cir. 2005), the plaintiff applied for disability benefits in March 2003, alleging an onset
date of March 14, 2002 -- the day that he was terminated from his job. Id. at 890. The Seventh
Circuit considered the plaintiff’s sworn statement in this disability application that he was unable
to work in assessing whether the plaintiff was a qualified individual with a disability under the
ADA, even though the statement was made after his termination and, therefore, would not have
been available to his employer when he was fired. Id. at 892. Indeed, in that case, the Seventh
Circuit ultimately concluded that plaintiff’s ADA claim failed in the absence of any explanation as
to why his sworn statement in his disability application was consistent with his ADA claim. Id. See
also Butler v. Vill. of Round Lake Police Dep't, 585 F.3d 1020, 1023 (7th Cir. 2009) (considering posttermination application for disability benefits in assessing whether the plaintiff was a qualified
individual with a disability under the ADA); Lee v. City of Salem, Ind., 259 F.3d 667, 678 (7th Cir.
2001) (considering both pre-termination and post-termination applications for disability benefits
in assessing whether the plaintiff was a qualified individual with a disability under the ADA).
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under Rooney, Mlsna’s medical records would appear relevant to his claims for damages and
reinstatement. Thus, plaintiff is ordered to either produce the requested medical records
or forgo those requested remedies.
Second, there may be practical reasons to delay consideration of this after-acquired
evidence in a second phase of trial (as opposed to a strictly damage phase). Not only would
it allow the jury to decide the factual issues expressly remanded for reconsideration by the
Seventh Circuit without the likely confusion and potential prejudices of other, afteracquired evidence that is arguably deemed of no relevance by the Seventh Circuit in Rooney,
but it could be considered by the jury in a more understandable fashion as part of deciding
damages, where it is certainly relevant. Moreover, should the law change, by asking special
verdict questions in the second phase of the trial as to (1) the relevance of after-acquired
evidence to plaintiff’s ability to perform the reasonably essential functions of a train
conductor and (2) what damages to award, if any, the court and parties can avoid the
necessity of a retrial.
Of course, this is not to decide the relevance of any after-acquired evidence,
especially as to the plaintiff’s sworn statement of disability, which may have other
confusing and prejudicial qualities for a lay jury. That issue can await further briefing by
the parties by way of a stand-alone motion in limine filed by plaintiff before the deadline
for such motions in this case.

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ORDER
IT IS ORDERED that:
1) Defendant’s motion for summary judgment (dkt. #141) is DENIED.
2) Plaintiff is to produce Mlsna’s requested medical records on or before April 19,
2021. If he fails to do so, he will be required to forgo all requested relief.
3) Plaintiff may file at any time a stand-alone, motion in limine as to the
admissibility of his application for disability benefits after learning of his not
being recertified as a train conductor or medical records unrelated to his hearing
deficit, except not later than May 18, 2021, and defendant may have 14 days to
respond.
Entered this 30th day of March, 2021.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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