Mlsna, Mark v. Union Pacific Railroad

Filing 218

ORDER granting 195 Motion to Strike ; denying 216 Appeal of Magistrate Judge Decision to District Court. Signed by District Judge William M. Conley on 06/15/2021. (mfh)

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

OPINION AND ORDER

v.
18-cv-37-wmc
UNION PACIFIC RAILROAD COMPANY,
Defendant.
In this case, plaintiff Mark Mlsna alleges that his former employer, Union Pacific
Railroad Company, violated the Americans with Disability Act (“ADA”), 42 U.S.C. § 1210
et seq., in declining to recertify him as a train conductor due to his disability. With trial set
to begin in this case on Monday, June 28, 2021, the court issues the following order
addressing two motions brought by defendant.

I. Objection to Instructions Regarding Disparate Impact Claim
Defendant first objects to plaintiff’s attempts to raise a disparate impact claim in
his pretrial filings with this court. (Dkt. #195, 196.) According to defendant, plaintiff
failed to provide fair notice of this claim, and so it should not be permitted to raise that
claim now with the trial approaching.
In Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), the U.S. Supreme Court
emphasized the “distinction between claims of discrimination based on disparate treatment
and claims of discrimination based on disparate impact.” Id. at 46. The Court further
explained that “[b]ecause ‘the factual issues, and therefore the character of the evidence
presented, differ when the plaintiff claims that a facially neutral employment policy has a

discriminatory impact on protected classes,’ courts must be careful to distinguish between
these theories.” Id. at 53 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 252, n.5 (1981)).
Here, there is some ambiguity in plaintiff’s operative complaint as to whether he
was in fact pursuing a disparate impact claim. (Compare Am. Compl. (dkt. #145) ¶ 52
(alleging that “Union Pacific’s testing policy is not a neutral, uniform protocol that
disparately impacts hearing-impaired employees”); with ¶¶ 114-15 (alleging that Union
Pacific’s hearing exam adversely affected individuals with hearing disabilities).) Regardless
of defendant’s notice of plaintiff’s claim, defendant’s motion must be granted as jury trials
do not appear to be available for ADA disparate impact claims. See 7th Cir. Civ. Jury
Instructions § 3.08 (2017) (“The Committee did not include a disparate impact instruction
because there are no jury trials under Title VII for disparate impact, 42 U.S.C. §
1981a(a)(1) & (c).”); Gaffney v. Riverboat Servs. of Indiana, Inc., 451 F.3d 424, 460 n.35
(7th Cir. 2006) (explaining that the remedies for violations of Title VII and the ADA are
both found in the 1964 Civil Rights Act, 42 U.S.C. § 1981a(a)(1) & (c)); 3d Cir. Civ. Jury
Instructions § 9.1.6 (2018) (“Disparate impact claims are cognizable under the ADA. . . .
No instruction is provided on disparate impact claims, however, because a right to jury
trial is not provided under the ADA for such claims.”). Accordingly, references to any
disparate impact theory of liability will be struck from the jury instructions.

II. Appeal of Magistrate Judge Crocker’s Order on Defendant’s Motion to Compel
On April 28, 2021, defendant filed a motion seeking to compel Mlsna to produce
his W-2 and 1099 tax forms from 2013 to the present. (Dkt. #174.) Defendant represents

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that: (1) in response to defendant’s discovery request (over three years ago), plaintiff
responded that he would produce his W-2s and 1099s; (2) on April 8, 2021, defendant’s
counsel realized that plaintiff had not produced the documents, and he conferred with
plaintiff’s counsel; and (3) after the parties were unable to resolve the dispute, defendant’s
counsel on April 28, 2021, moved to compel the documents. Plaintiff opposed defendant’s
motion on the grounds that: (1) the motion was untimely; (2) defendant has the relevant
documents in its control as Mlsna has not worked for anyone else after Union Pacific
effectively terminated him, so he has no other W-2s or 1099s to produce; and (3)
defendant itself refused to produce certain information demonstrating Mlsna’s wage loss,
including Mlsna’s W-2s and the W-2s for the three employees above and below him on
the seniority roster.
On June 2, 2021, Magistrate Judge Crocker issued the following order denying the
motion: “Discovery in this case closed on March 15, 2021. See dkt. 139. On April 28,
2021, defendant filed a motion to compel discovery. See dkt. 174. That's over six weeks
too late. The motion is denied as untimely.” (Dkt. #214.) Now, defendant seeks to
appeal this order. (Dkt. #216.)
This matter is governed by Federal Rule of Civil Procedure 72(a), which provides:
When a pretrial matter not dispositive of a party's claim or
defense is referred to a magistrate judge to hear and decide, the
magistrate judge must promptly conduct the required
proceedings and, when appropriate, issue a written order
stating the decision. . . . The district judge in the case must
consider timely objections and modify or set aside any part of
the order that is clearly erroneous or is contrary to law.
Fed. R. Civ. P. 72(a). Defendant does not dispute that its motion was filed over six weeks

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after the close of discovery. Instead, it contends that contends that Judge Crocker should
have assessed whether it had good cause for filing the motion after the close of discovery.
Judge Crocker’s order is not clearly erroneous or contrary to law and will be upheld.
In particular, defendant does not explain why it took three years to discover that information
was missing. Defendant’s excuse that plaintiff said he would produce the evidence does
not explain away its own lack of diligence. Moreover, it would appear from plaintiff’s
representations that defendant has all the relevant W-2 and 1099 records in its control.
Finally, this is a two-way street:

just as defendant may not now gain access to this

information, plaintiff not only is precluded from offering it into evidence, but would be
sanctioned should it ever appear that he earned any reported income outside of work for
Union Pacific after 2015, having represented to the court that he has no non-Union Pacific
W-2s or 1099s to produce.

ORDER
IT IS ORDERED that:
1) Defendant’s motion to strike plaintiff’s proposed jury instructions (dkt. #195)
is GRANTED.
2) Defendant’s appeal of Magistrate Judge Crocker’s order (dkt. #216) is
DENIED.
Entered this 15th day of June, 2021.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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