WILLIAM M. CONLEY, District Judge.
Plaintiff Mark Mlsna hereby appeals to the United States Court of Appeals for the Seventh Circuit from the Court's May 15, 2019 order, in which it granted summary judgment to Defendant Union Pacific Railroad Co. (Dkt. 97), and judgment, which the Court entered the next day (Dkt. 98).
Plaintiff Mark Mlsna claims that defendant Union Pacific Railroad Company violated the Americans with Disabilities Act in declining to recertify him as a train conductor because of his hearing impairment. Defendant has moved for summary judgment (dkt. #50), arguing generally that Mlsna was not a "qualified individual" because he could not simultaneously meet Federal Railroad Administration hearing acuity standards while wearing required hearing protection. Because plaintiff failed to marshal enough evidence for a reasonable jury to conclude that he could fulfill the essential functions of the train conductor position with a reasonable accommodation, defendant is entitled to summary judgment.
Mlsna has a hearing impairment and has worn hearing aids for over 20 years. He began working for Union Pacific as a thru-freight train conductor in 2007. The written job description for this position identified the following essential functions and qualifications: (1) "[f]ollowing safety precautions"; (2) "[m]onitoring, observing, interpreting, and relaying signals and placards to gather and communicate information"; (3) being "abl[e] to recognize sounds and changes in sounds"; (4) "[c]ommunicating clearly with co-workers and train dispatchers via radio"; (5) "[a]ttending to and understanding key pieces of spoken information"; and (6) "Safety Orientation: [t]he willingness to practice safe work habits." (Train Crew Job Description (dkt. #57-1) 2-3.) In describing work conditions, the job description also notes that a conductor "[m]ust wear personal protective equipment such as safety glasses, safety boots, hard hats, and hearing protection where the company requires," as well as "[e]nsure compliance with all railroad rules and regulations for safety, operations and Federal Railroad Administration (FRA)." (Train Crew Job Description (dkt. #57-1) 5.) As reflected by this job description, conductors rely heavily on communications from other crew members and dispatchers, including warning sounds and alerts conveying potential hazards. (Jennings Decl. (dkt. #59) ¶ 3.) Moreover, Mlsna agrees that the train conductor position is "safety-sensitive," such that an individual's inability to meet the position requirements could pose a threat to people's safety. (Mlsna Dep. (dkt. #27) 17:23-18:12.)
In January 2012, the FRA promulgated new regulations, which require railroads, including Union Pacific, to certify that its conductors met specific, minimum hearing acuity standards. In particular, the regulations required conductors to pass a hearing test demonstrating that they "do[] not have an average hearing loss in the better ear greater than 40 decibels with or without the use of a hearing aid." 49 C.F.R. §§ 242.117(i), 242.109(a)(2). FRA regulations also require railroad employees to wear hearing protections in two situations: (1) when exposed to sound levels equivalent to an 8-hour time-weighted average ("TWA") of 90 decibels or greater; or (2) when exposed to sound levels of 85 decibels or greater if the employee has not yet had a baseline audiogram or experiences a worsening change in hearing sensitivity. 49 C.F.R. § 227.115(c)-(d). Under FRA regulation, hearing protectors must generally attenuate employee exposure to an 8hour TWA of 90 decibels or lower, but for employees who have experienced worsening hearing sensitivity, the hearing protection must attenuate exposure to at most an 8-hour TWA of 85 decibels.
As required by the FRA, Union Pacific created a Hearing Conservation and Policy Program, which covers employees who "may be subjected to noise exposures equal to or exceeding an 8-hour [TWA] sound level of 85 decibels." (Hearing Conservation Policy (dkt. #58-1) 1.) Likewise, Union Pacific performs noise monitoring to determine which employees are covered by the policy, including representative sampling.
This testing revealed that 62 of 172 "thru-freight" conductors were exposed to an 8-hour TWA of 85 decibels or greater, while 22 of 172 were exposed to an 8-hour TWA of over 90 decibels. As to "local" conductors, 29 of 91 were exposed to an 8-hour TWA of 85 decibels or greater, while six were exposed to an 8-hour TWA of over 90 decibels.
Based on this dosimetry testing, Union Pacific considered all conductors to fall under the Hearing Conservation Policy. (Knight Decl. (dkt. #60) ¶ 8.) Plaintiff notes that Union Pacific did not verify whether his individual essential job functions actually exposed him to an 8-hour TWA of 90 decibels. (Opp'n (dkt. #72) 4-5.)
Union Pacific's hearing conservation policy also "requires all employees to wear approved hearing protection in identified hearing protection areas," which are demarcated by signs. (Hearing Conservation Policy (dkt. #58-1) 1, 3.) This policy directs all employees to wear hearing protection when they are within a 150-foot radius of a locomotive, unless inside the cab with the doors and windows closed. (Id. at 6.) Union Pacific contends that working within 150 feet of a locomotive was central to the position of train conductor, and Mlsna admitted that he worked within a 150-foot radius of a locomotive. (Mlsna Dep. (dkt. #27) 20:8-11, 21:25-22:3.) These additional rules are mandatory for all employees, including those whose regular potential noise exposure is less than the 8-hour TWA of 85 decibels. Indeed, plaintiff alleges in both his complaint and amended complaint that "Train Crewm[e]n work in a noisy environment and are therefore required to wear hearing protection." (Compl. (dkt. #1) ¶ 14; Amend. Compl. (dkt. #3) ¶ 14.)
There is no dispute that Union Pacific provides its employees with hearing protection under its Hearing Conservation Policy. (Hearing Conservation Policy (dkt. #58-1) 1.) This policy noted that Union Pacific declined to authorize custom molded ear plugs, but instead relied on personal protective equipment approved by the Safety Department.
However, the policy expressly states that "[h]earing aids are not approved UPRR Hearing Protection Devices (HPDs) and are not effective for this purpose." (Hearing Conservation Policy (dkt. #58-1) 1.) Likewise, Union Pacific does not permit employees to wear hearing aids under hearing protectors or AHPDs because the combination: (1) is not tested or approved; (2) lacks a laboratory-determined NRR; and (3) may result in harmful noise exposure from excessive environmental noise. (Holland Decl. (dkt. #58) ¶ 17; Jan. 16, 2015 Letter (dkt. #53-4) 1.)
The 2012 FRA regulations "grandfathered in" then-current conductors for thirty-six months, so Mlsna did not have to complete his hearing certification until February 2015. He first underwent the required testing on December 18, 2014, during which his hearing was tested under four circumstances: (1) unaided; (2) with hearing aids; (3) with an AHPD, but with the amplification turned off; and (4) with an AHPD and the amplification turned all the way up. (See Hearing Test Results (dkt. #53-3) 1.) Mlsna only met the minimum FRA hearing criteria when tested with his hearing aids and no AHPD. Comparing these results to Mlsna's baseline audiogram revealed no change in hearing sensitivity.
After receiving these results, Union Pacific arranged for additional testing by an audiologist with Mlsna wearing the Union Pacific-approved APHD. This second round of testing occurred on January 8, 2015. Again, Mlsna's hearing was tested under the same circumstances. (See Jan. 8, 2015 Audiology Notes (dkt. #53-1) 7.) This testing also found that Mlsna only met FRA standards when he was wearing hearing aids without protection. Union Pacific did not know that Mlsna failed to meet minimum hearing criteria until this second round of certification testing. Following that testing, Union Pacific concluded that it could no longer certify Mlsna as a conductor because he could not meet the FRA-imposed hearing requirements while wearing a required AHPD.
Union Pacific's Health and Medical Services department then (1) informed Mlsna's supervisor that the railroad could not certify Mlsna and (2) asked what reasonable accommodations would permit Mlsna to continue working. Unfortunately, Mlsna's supervisor could not identify a reasonable accommodation permitting Mlsna to continue to safely work as a conductor.
In March 2015, Mlsna suggested he be allowed to use E.A.R., Inc.'s "Primo" device, a custom-made earplug, as a possible way for him to satisfy the FRA acuity standards, while providing an adequate level of hearing protection. Despite the Hearing Conservation Policy's prohibition on custom molded ear plugs, Union Pacific reviewed the literature regarding the E.A.R. Primo, ultimately rejecting it because the literature did not specify an NRR. (Knight Dep. (dkt. #95) 22:21-23:11.) In response, Mlsna contends that an NRR could apply to a custom device. (Opp'n (dkt. #72) 11-12 (citing Gordon Dep. (dkt. #70) 29:9-31:2.)
The Industrial Hygiene Department at Union Pacific is responsible for evaluating workplace conditions, developing safety and regulatory compliance programs, providing health and safety training, evaluating employee noise exposure, and identifying appropriate hearing protection devices. In evaluating hearing protection devices, the department does not test the devices and instead relies on their manufacturer-provided NRRs. Without a manufacturer-provided NRR, the department would not approve a device because the department could not be sure of the level of protection.
Blake Knight, a Union Pacific Industrial Hygiene Manager, reviewed the E.A.R. Primo to confirm that it did not have a manufacturer-provided NRR, and accordingly, that the Industrial Hygiene Department could not determine one.
In rejecting Mlsna's proposed E.A.R. Primo as an accommodation, Union Pacific also advised Mlsna that he could submit other proposed devices for evaluation. However, Mlsna did not propose other accommodations until after litigation was already underway, meaning Union Pacific could only have investigated Mlsna's proposed device.
In response, Mlsna now points to his experts' opinions that other AHPDs and custom devices could be used to accommodate him, but there is no evidence that Union Pacific was aware of any device in 2015 that would provide sufficient noise amplification and protection to permit Mlsna to meet the FRA requirements. (See Kloss Rpt. (dkt. #76) 1 (opining that "Mr. Mlsna could be safely accommodated with current available technology such that he would comply with the FRA regulations and work as a railroad Conductor," identifying five models of earplugs or earmuffs that provide sufficient sound amplification and protection); Kloss Suppl. Rpt. (dkt. #74) ¶ 2 ("There are custom digital hearing protection devices that can provide the 25dB of amplification" including products by Electronic Shooters Protection, which "are custom made hearing protection devices that are similar to hearing aids but can be manufactured with . . . a 25dB . . . that would presumably allow Mr. Mlsna to meet the FRA requirement."); Trangle Rpt. (dkt. #77) 1 (opining that "Mlsna could easily have been accommodated in his position as a conductor for the railroad" through use of AHPDs); Trangle Suppl. Rpt. (dkt. #81) 2-4 (opining that "[u]se of custom-molded protection for him, like what Mr. Mlsna provided that had been tailored for his use, could have worked" and discussing suitability of the Howard Leight Impact Pro Industrial earmuff and E.A.R. earplug and earmuffs); Trangle 2d Suppl. Rpt. (dkt. #56) 1 (opining that Honeywell's Howard Leight AHPD product "would provide Mr. Mlsna with hearing protection and necessary amplification"); Holland Decl. (dkt. #58) ¶ 21.)
After Union Pacific declined to recertify Mlsna as a conductor and Mlsna's department was "unable to identify a reasonable accommodation" permitting him to return to work safely, Union Pacific referred him to its Disability Management Department for assistance. (Jan. 30, 2015 Letter (dkt. #57-2) 1.) Specifically, Union Pacific wrote a letter on January 30, 2015, that offered "experienced[,] certified vocational rehabilitation professionals" to "sit down with [him] and help [him] plan [his] next steps." (Id.) The letter further advised that if Mlsna did not contact the Disability Management Department within 30 days, then Union Pacific would assume that he did not require assistance. (Id.) The letter also enclosed a document titled, "What are my options now that I am unable to return to my Railroad job?" (Id. at 3-4.) That document explained:
(Id. at 3.) The attachment also provided information about the railroad retirement board and other disability benefits. (Id. at 3-4.)
Mlsna contends that Union Pacific would not have been able to accommodate his disability with another position. (See Deardorff Dep. (dkt. #96) 8:7-10 (testifying that he did not know of any positions Mlsna "could have bumped to that did not require him to wear hearing protection").) However, Mlsna does not remember contacting the disability prevention and management team at Union Pacific, and he acknowledges never asking Union Pacific for assistance, as well as denying interest in changing jobs within the railroad. (Mlsna Dep. (dkt. #27) 34:3-35:9, 74:20-75:4.) Instead, Mlsna applied for disability benefits from the railroad retirement board ("RRB"). On his application, he represented that his medical conditions prevent him from working. (RRB App. (dkt. #53-2) 10.) Upon learning that he could obtain retirement benefits, Mlsna abandoned his disability benefits application altogether.
Still, Mlsna did ask Union Pacific to reconsider its decision not to recertify him. In response, Holland explained that: (1) safety required all train crew members "to be able to accurately hear spoken and radio communications"; (2) Mlsna had been "removed from service as a Trainman" following the December 18, 2014 audiogram showing "significant hearing loss in both ears"; (3) Union Pacific "requires all Trainmen to have a minimum hearing threshold in the better ear of 40 decibels or less . . . either with unaided hearing or when using a UPRR-approved AHPD"; (4) Mlsna's tests "indicate[d] that [he] ha[d] substantial bilateral hearing loss that poses a significant, imminent and unacceptable safety risk . . . if [he] were to work as a Trainman for UPRR"; (5) he "d[id] not have the hearing ability to safely perform [his] essential job duties as a Trainman even when . . . using a UPRR approved AHPD"; (6) Union Pacific could not locate "any adaptive device that would allow [Mlsna] to hear adequately for safe work as a Trainman and still provide adequate hearing protection in areas where this is required." (June 9, 2017 Letter (dkt. #58-2) 1-3.)
Summary judgment is appropriate if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). At this stage, all reasonable inferences must be drawn in favor of plaintiff as the nonmoving party. Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir. 2001) (citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)). To avoid summary judgment, plaintiff must marshal enough evidence — not merely a scintilla — to permit a jury to rule in his favor. Nowak v. St. Rita High School, 142 F.3d 999, 1002 (7th Cir. 1998) (internal citations omitted).
Defendant seeks summary judgment contending that plaintiff simply "cannot show that Union Pacific discriminated against him because of his hearing impairment." More specifically, even though Mlsna is "disabled" under the ADA, he cannot establish that: (1) he is a "qualified individual"; and (2) he suffered an adverse employment action because of his disability.
"The ADA and Rehabilitation Act prohibit an employer from discriminating against a qualified individual with a disability because of the disability." Jackson v. City of Chic., 414 F.3d 806, 810 (7th Cir. 2005) (quoting Silk v. City of Chic., 194 F.3d 788, 798 (7th Cir. 1999)). Regardless of whether plaintiff's claim is viewed as outright discrimination or a failure-to-accommodate claim, he must establish that he is "disabled" under the ADA and that with or without accommodation he could perform the job's essential functions. See Hooper, 804 F.3d at 853 (citing Bunn v. Khoury Enters., Inc., 753 F.3d 676, 683 (7th Cir. 2014)) (identifying elements of discrimination claim as: being disabled under the ADA, qualified to perform job's essential functions, and termination because of the disability); E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005) (citing Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001)) (identifying elements of failure-to-accommodate claim as: being "a qualified individual with a disability"; employer knowledge of disability; and the employer's failure to accommodate the disability).
In order to be a "qualified individual" an employee must "satisf[y] the prerequisites for the position" and be able to "perform the essential functions of the position . . . with or without reasonable accommodation" at the time he was fired. Stern v. St. Anthony's Health Ctr., 788 F.3d 276, 285, 287 (7th Cir. 2015); see also Whitaker v. Wis. Dept. of Health Servs., 849 F.3d 681, 684 (7th Cir. 2017) (explaining that an "otherwise qualified" employee is one who "is capable of performing the `essential functions' of the job with or without a reasonable accommodation"); Nowak, 142 F.3d at 1003 (explaining that the qualified individual determination "must be made as of the time of the employment decision" (internal citation omitted)). Plaintiff bears the burden of establishing that he was a qualified employee. Nowak, 142 F.3d 1003.
There is no dispute that plaintiff had the requisite background, experience, and knowledge to serve as a train conductor, as he had been employed by Union Pacific in that role since 2007. The relevant dispute is over plaintiff's ability to perform the position's essential functions with or without accommodation. Since there can be no dispute that federal regulation requires a person not to "have an average hearing loss in the better ear greater than 40 decibels with or without use of a hearing aid, at 500 Hz, 1,000 Hz, and 2,000 Hz," 49 C.F.R. § 242.117(i), the parties' dispute centers on whether hearing protection is an essential function of the position.
"[T]o determine whether a particular duty is an essential function," the court considers factors like "the employee's job description, the employer's opinion, the amount of time spent performing the function, the consequences for not requiring the individual to perform the duty, and past and current work experiences." Stern, 788 F.3d at 285 (quoting Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th & 22nd Judicial Circuits, 601 F.3d 674, 679 (7th Cir. 2010)); see also 29 C.F.R. § 1630(n)(2) (listing potential reasons that "[a] job function may be considered essential"). While the employer's judgment is important, it is not controlling; workplace practices are also considered. Stern, 788 F.3d at 285-86 (quoting Miller v. Ill. Dep't of Transp., 643 F.3d 190, 198 (7th Cir. 2011)).
Defendant contends that wearing hearing protection is an essential function of the train conductor position because: (1) FRA regulations require railroad employees to use hearing protection when exposed to an eight-hour TWA of 90 decibels or more (Opening Br. (dkt. #51) 22 (citing 49 C.F.R. § 227.115(d));
Accordingly, plaintiff's argument that he may not have been personally exposed to excessive noise is not determinative. First, train conductors' work environments vary making personal noise exposure level monitoring a difficult, if not pointless, exercise. As defendant points out, "dosimetry data measures historically where he has been, not where he will be on a given day." (Reply (dkt. #85) 23.) Second, as plaintiff himself acknowledged in his complaint, "Train Crewm[e]n work in a noisy environment and are therefore required to wear hearing protection." (Amend. Compl. (dkt. #3) ¶ 14.) Accordingly, the court is inclined to credit Union Pacific's assertion that requiring some conductors but not others to wear protective gear "would produce administrative and legal chaos," as well as "invite FELA liability." (Reply (dkt. #85) 23.)
Plaintiff also argues that since the train conductor job does not exist "to wear hearing protection, wearing hearing protection has nothing to do with the number of thru-freight conductors Union Pacific employs, and Mlsna wasn't hired for his ability to wear hearing protection." (Opp'n (dkt. #72) 26.) Whether a position exists to perform a function, the number of employees who perform a function, and whether an employee was hired for the ability to perform that function are all factors a court may consider when evaluating whether that function is essential. But Union Pacific is also required to provide a safe work environment for its employees. Moreover, Union Pacific may do so by requiring the use of protective gear, even when doing so is above-and-beyond the federal requirements. Indeed, keeping train conductors safe is such a priority that Union Pacific noted in the train crew job description that it required train conductors to "[f]ollow[] safety precautions," be "willing[] to practice safe work habits," "wear personal protective equipment such as . . . hearing protection where the company requires," and "[e]nsure compliance with all railroad rules and regulations for safety." (Train Crew Job Description (dkt. #57-1) 2-4.)
Accordingly, no jury could conclude that Union Pacific acted unreasonably in making the wearing of hearing protective devices an essential function of the train conductor position. An arguably closer question is whether Union Pacific did in fact make wearing headgear an essential function of plaintiff's train conductor position, but only because plaintiff testified at his deposition that he and his colleagues never wore hearing protection. However, plaintiff is bound by his affirmative pleading that "Train Crewm[e]n work in a noisy environment and are therefore required to wear hearing protection" because they "work in a noisy environment." (Amend. Compl. (dkt. #3) ¶ 14.) Robinson v. McNeil Consumer Healthcare, 615 F.3d 861, 872 (7th Cir. 2010) ("A judicial admission is a statement, normally in a pleading, that negates a factual claim that the party making the statement might have made or considered making.");
This brings the court to whether a reasonable accommodation would have permitted plaintiff to meet the FRA hearing acuity standards while wearing hearing protective devices. "[A]n accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." Bunn, 753 F.3d at 682 (quoting 29 C.F.R. pt. 1630 app. § 1630.2(o)). Where a disabled employee establishes that he did not receive a reasonable accommodation, his "employer will be liable only if it bears responsibility for the breakdown of the interactive process." Sears, Roebuck, 417 F.3d at 797 (citing Beck v. Univ. of Wisc. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996)).
Here, there is no dispute that plaintiff could only meet the FRA hearing acuity standard with assistance from his hearing aids. However, as noted above, Union Pacific's Hearing Conservation Policy does not permit conductors to wear hearing aids under their hearing protection. Moreover, plaintiff's experts also do not recommend wearing hearing aids under hearing protection. (Trangle Dep. (dkt. #46) 58:13-59:19; Kloss Dep. (dkt. #47) 55:1-10.)
Plaintiff only offered the E.A.R. Primo as a proposed reasonable accommodation during the interactive process.
Further, the evidence shows an inability to accurately measure an NRR because of the device's electronics. (Gordon Dep. (dkt. #70) 55:13-56:16 (explaining that noise reduction testing is performed with the device in the "off" position because testing cannot be done "while it's turned on"); Soli Dep. (dkt. #41) 41:19-21, 62:1-6, 73:15-74:13 (testifying that NRR is "calculated based on the passive characteristics of the device" and that custom devices do not have NRRs).) Plaintiff's contention about the availability of other methods of determining the level of hearing protection provided by a device is not enough to create a material dispute of fact, however, because plaintiff failed to produce any evidence from which a reasonable jury could conclude that Union Pacific's stated reason — the lack of a discernable NRR — was a pretext for discrimination. See Nolan v. Arkema, Inc., 809 F.Supp.2d 356, 365 (E.D. Penn. 2011) (explaining that "a plaintiff may defeat a motion for summary judgment" by showing "some evidence . . . from which a factfinder would reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action" that required plaintiff to show "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence" (internal citations omitted));
Even if Union Pacific's reason was a pretext for discrimination, plaintiff has another problem with his proposed accommodation: there is no evidence in the record to permit a reasonable jury to find that the E.A.R. Primo would actually permit him to fulfill the essential functions of a train conductor. (See Kloss Dep. (dkt. #47) 55:17-56:16 (testifying that he would need to test a product to determine if it would permit Mlsna to meet the FRA requirements).) Plaintiff's belated motion for leave to supplement the record with Kloss's most recent report is both too little and too late. (See Mot. Leave Suppl. (dkt. #86) 1.)
As to being too late, plaintiff knew from the outset that central factual issues in this suit were (1) his failure to meet FRA hearing acuity standards without assistance and (2) the lack of a manufacturer-provided NRR on his proposed accommodation. Indeed, Union Pacific ostensibly rejected the E.A.R. Primo because it did not have an NRR, and plaintiff had plenty of time to build a record on this question well before summary judgment was fully briefed. At the very latest, plaintiff should have provided this supplemental report with his brief in opposition, which was filed March 6, 2019 — one day after the date of the report. Regardless, there is no justification for plaintiff instead waiting to file the report one day after defendant filed its summary judgment reply.
As for too little, the supplementation does not solve plaintiff's evidentiary problems. The report describes the tested devices as having been "ordered through E.A.R., Inc[. and] manufactured by Persona Medical," but fails to identify them as the accommodation actually proposed by plaintiff in 2015. Likewise, the report only concludes that "with the volume turned to FULL-ON," Mlsna "DOES MEET FRA minimal hearing criteria." (Kloss. 2d Suppl. Rpt. (dkt. #86-1) 1.) Accordingly, this opinion adds practically nothing, since there is no dispute that with hearing aids plaintiff met this standard back in 2015. Assuming that meeting FRA hearing acuity standards is only one of the essential functions at issue here, Kloss's opinion is silent about the level of hearing protection offered by the tested device.
For all these reasons, Union Pacific's rejection of the E.A.R. Primo was reasonable, and Union Pacific cannot be held responsible for the breakdown of the interactive process, having met its burden by evaluating plaintiff's proposed accommodation and offering to review others. Indeed, the undisputed evidence is that plaintiff did not propose additional accommodations in 2015, and he declined defendant's offer for assistance in seeking alternate employment. Further, because plaintiff cannot meet FRA requirements while wearing appropriate hearing protection, he is not a "qualified individual." Accordingly, defendant is entitled to judgment.
IT IS ORDERED that:
IT IS ORDERED AND ADJUDGED that judgment is entered in favor of defendant Union Pacific Railroad Company against plaintiff Mark Mlsna dismissing this case.
Id. at 806.
