Laurie Smith Camp, Chief United States District Judge.
This matter is before the Court on the Motion for Summary Judgment, ECF No. 49, filed by Defendant Union Pacific Railroad Co. For the reasons stated below, the motion will be granted.
The following facts are those stated in the parties' briefs, supported by pinpoint citations to evidence in the record, and admitted, or not properly resisted, by the opposing party as required by NECivR 56.1
A Locomotive Engineer is a "safety sensitive" position, responsible for regulating the speed of moving trains and ensuring compliance with safety protocols. Id. ¶¶ 8-9. A Locomotive Engineer's mishandling of a train can cause a derailment or collision. Id. ¶ 9. Union Pacific assigned Locomotive Engineers to groups of engineers called "pool turns," who accompanied trains on predetermined routes.
When an engineer laid off, Union Pacific turned first to the "extra board," a group of engineers who filled short-notice vacancies.
In 1989, the train on which Higgins was working "hit some bad rail going around a curve," throwing Higgins from his chair onto the floor. Opp. Brief ¶ 9, ECF No. 62, Page ID 589. Higgins suffered a crushed disc in his spine, was hospitalized for three weeks, and eventually had back surgery. Id. ¶ 10. The operating neurosurgeon advised Higgins that he would experience intermittent back pain the rest of his life. Supp. Brief ¶ 15, ECF No. 56, Page ID 481.
In March of 1990, Higgins's neurosurgeon released Higgins to "return to full-time work within the limits of his comfort." Opp. Brief ¶ 15, ECF No. 62, Page ID 590 (quoting Gogela Ltr., ECF No. 63-8, Page ID 757). On March 24, 1990, Higgins's union representative, Tom Sullivan, wrote to Union Pacific Director R.D. Arney, stating that Higgins would have to "lay off from time to time as a result of his injury." Id. ¶ 16 (quoting Sullivan Ltr., ECF No. 65-3, Page ID 899). A Union Pacific internal correspondence, dated April 3, 1990, showed managers discussing "what our position should be regarding Engineer Higgins laying off periodically" for his injury. Id. ¶ 14 (quoting Arney Email, ECF No. 65-4, Page ID 900). Sullivan wrote again to Union Pacific management on August 28, 1990, November 18, 1991, and February 10, 1992, following up on Higgins's need for laying off. Id. ¶ 18.
In 1991 or 1992, Higgins's train hit a "dip in the rail," causing his head to "snap back" and resulting in a herniated disk in his neck. Id. ¶ 11, Page ID 589; id. ¶ 16, Page ID 578. Higgins alleges that after his second injury he entered into a written settlement agreement with Union Pacific. Id. ¶ 12, Page ID 590. Per this agreement, Higgins released his claims against Union Pacific in exchange for settlement payments and permission to lay off as needed
On March 12, 1992, Higgins's physician, Dr. Brittan, wrote a letter to Union Pacific, stating that Higgins was released to work "with the only restriction being that he should not go out more often than every 24 hours." Opp. Brief ¶ 19, ECF No. 62, Page ID 590 (quoting Brittan Ltr., ECF No. 65-6, Page ID 902). On June 29, 1992, Union Pacific Assistant Medical Director Dr. Richard Peters wrote to Union Pacific Superintendent John Holm, stating that "[t]he medical director's office supports the restriction that on occasion Jon Higgins should not go out on a job assignment more than once every 24 hours." Id. ¶ 19 (quoting Peters Email, ECF No. 65-8, Page ID 904).
On April 7, 1993, Union Pacific Superintendent M.E. Ring wrote to Higgins, stating:
ECF No. 52-2, Page ID 323. Higgins alleges that the letter "purport[ed] to place additional conditions on the previous agreement" with its documentation requirement and threat of discipline. Opp. Brief ¶ 23, ECF No. 62, Page ID 591.
On December 28, 1998, Union Pacific sent Higgins a "Notice of Formal Investigation," for his "excessive absenteeism." Opp. Brief ¶ 25, ECF No. 62, Page ID 592 (quoting Notice Ltr., ECF No. 63-11, Page ID 760.). That same day, Higgins's manager, Tim Burkhart, emailed Union Pacific Manager Rick Folker, stating,
Id. ¶ 26 (quoting Burkhart Email, ECF No. 65-9, Page ID 905). Union Pacific cancelled the investigation in January of 1999. Id. ¶ 27. On January 25, 1999, Dr. Brittan wrote a letter stating that "nothing has changed medically" as to Higgins's back injury and that his restrictions should be kept the same. Id. ¶¶ 27-28 (quoting Brittan Ltr., ECF No. 65-10, Page ID 906).
On October 26, 1999, Sullivan wrote a letter (Sullivan Letter) to Union Pacific Superintendent Rich Jensen, memorializing their agreement "that [Higgins] will not be disciplined as the result of him
In 2004, Michael Humpherys became the Manager of Training and Attendance for the North Platte Service Unit. Id. ¶ 30. In this position, Humpherys was eligible for a performance bonus, depending in part on meeting certain performance goals. Id. ¶ 31. One such performance goal was reducing the number of lay-offs. Id. On October 8, 2004, Humpherys reviewed Higgins's attendance record and noted that it was "[v]ery borderline," and that Humpherys would "[c]ontinue monitoring." Id. ¶ 34 (quoting ECF No. 63-14, Page ID 766). In late 2005, Humpherys recommended to Higgins's supervisor that Higgins be given notice for his violation of the attendance policy. Id. ¶ 35, Page ID 594. Shortly after this, Humpherys discussed the Sullivan Letter with Superintendent Cameron Scott, who told Humpherys that the "[l]etter stands." Id. ¶ 36 (quoting ECF No. 63-14, Page ID 766.).
On June 17, and September 23, 2008, Humpherys sent letters to Higgins, warning him that continued lay-offs could result in discipline. Id. ¶¶ 39-40. In November of 2010, Higgins provided a note from his physician, Dr. Jason Citta, at Union Pacific's request. The letter suggested that Higgins should be given three to four trips off per month due to his back. Id. ¶ 41, Page ID 595.
Union Pacific alleges that prior to 2011 it "had limited means to examine data regarding the specific attendance records of the 2,000 employees in the North Platte service unit." Supp. Brief ¶ 32, ECF No. 56, Page ID 484. According to Union Pacific, "[a]s a result of improved technology that became available in about 2011, Union Pacific began focusing on holding employees accountable for absenteeism as well as other aspects of the business designed to improve efficiency and profitability."
On January 1, 2011, Union Pacific's "Railroad Train, Engine, and Yard Attendance Policy" (TEY Policy) went into effect. Id. ¶ 28, Page ID 483. The TEY Policy states "[a]s a Union Pacific employee, you... are expected to protect your job assignment on a fulltime basis. `Full-time' means being available to work your assignment, whether regular or extra, whenever it is scheduled to work." Id. ¶ 28. The policy further states that "[s]ubstantiating documentation is expected and may be required. However, notification and documentation alone do not excuse your responsibility to protect your job. You may be considered in violation of this policy regardless of the explanation offered if you are unable to work full time and protect all employment obligations." ECF No. 56-9, Page ID 560. The policy warned that, if an employee used lay-offs too frequently, "an investigation will be held; and, if appropriate, discipline will be issued based on the results of the investigation." Id. The job description for a Union Pacific Locomotive Engineer listed "[a]ttendance in compliance with the applicable attendance policy" as an essential function of the position. Supp. Brief ¶ 28, ECF No. 56, Page ID 482-83.
The overall attendance in the North Platte service unit was measured by percentages derived from dividing the number of non-compensated layoffs by the total number of employees. Id. ¶ 34, ECF No.
On April 11, 2013 Higgins received a letter from Humpherys notifying him that Union Pacific was monitoring his attendance. Id. ¶ 38. In October 2013, Humpherys sent an email to a colleague in Union Pacific's Labor Relations office, among others, discussing Higgins's 1991 injury, the agreement allowing him to lay off for that injury, and stating that "Higgins has been a chronic absenteeism problem for years." Opp. Brief ¶ 40, Page ID 62, Page ID 581-82.
In the spring of 2014, Humpherys's review of Higgins's attendance record showed that in 2012 and 2013, Higgins laid off on approximately 20 and 24 percent of his starts, respectively. Supp. Brief ¶ 40, ECF No. 56, Page ID 485-86. Humpherys sent Higgins an Attendance Alert and Advisory letter on April 2, 2014, which explained that his attendance was unsatisfactory under the TEY Policy. Id. ¶ 41.
Between May 11, 2014, and August 9, 2014, Higgins laid off on 26 percent of his shifts—eight non-compensated lay-offs and 23 starts. Id. ¶ 42. Union Pacific alleges that the rest of the engineers in Higgins's pool turn averaged approximately 38 starts during this same period.
Union Pacific issued Higgins a Notice of Investigation letter, which stated that he was under investigation for a first offense under the TEY Policy and would have to report to a hearing on the matter. Id. ¶ 44, Page ID 487. In response, Higgins provided Union Pacific with a letter dated August 19, 2014, from Dr. Citta, which stated that as a result of his "intermittent and unpredictable" back pain, Higgins would be required to miss work "on an intermittent basis." Id. ¶ 45 (quoting Citta Ltr., ECF No. 52-5, Page ID 326)). No hearing was held. Id. ¶ 46.
On September 8, 2014, Higgins filed an occupational injury report, in which he stated that he experienced an anxiety attack while on a locomotive. Higgins claimed the episode was caused by "stress and depression due to harassment by [Union Pacific] and North Platte manager Michael Hansen" regarding the investigation into Higgins's attendance. Id. ¶ 47 (quoting Injury Rep., ECF No. 52-6, Page ID 327-28). This was Higgins's first and only panic attack. Id. ¶ 48. The same day Higgins submitted his injury report, Union Pacific removed him from service pending evaluation of his health. Id. ¶ 50.
Higgins's immediate supervisor Matthew Patnaude, Director of Road Operation John Allberry, and manager Clay Nielson referred Higgins for a fitness-for-duty evaluation (FFD). Id. ¶ 49. Union Pacific contends that this decision was driven solely by safety concerns. Id. Nielson completed a FFD Request Form, in which he stated that the FFD was being requested due to Nielsen's "Absenteeism," "Deteriorating Performance," "Anxiety Attacks," and "Stress," among other issues described
As part of the FFD evaluation, Union Pacific requested that Higgins submit a "copy of clinic notes (also known as office notes or progress notes) from the provider treating your medical condition(s)" to the company's Health and Medical Services office. Supp. Brief ¶ 50, ECF No. 56, Page ID 488 (quoting Med. Srvcs. Ltr., ECF No. 52-7, Page ID 329).
As part of his FFD evaluation, Higgins had to undergo a Functional Capacity Evaluation (FCE) on October 1, 2014. Id. ¶ 52, Page ID 489. During the FCE, Higgins was asked to lift a 40-pound box. Id. When additional weight was added to the box, Higgins dropped the box and injured his ankle. Id. Higgins alleged the ankle injury occurred on the job, and he submitted a second occupational injury report. Id. ¶ 53. Union Pacific requested that Higgins sign a consent to release his medical records, and Higgins verbally agreed that he would authorize records related to his "foot injury only" but would not "consent to anything else." Id. ¶ 54 (quoting Higgins Dep. 169:9-13. ECF No. 52, Page ID 292).
On October 7, 2014, Higgins signed an authorization to release medical records that stated:
ECF No. 52-10, Page ID 335. Below this paragraph was a table in which Higgins wrote his name, date of birth, social security number, and date of injury. See id. The release further stated:
Id. Higgins testified that he relied on his verbal limitation regarding the scope of the release. Supp. Brief ¶ 56, ECF No. 56, Page ID 490.
Union Pacific contract nurse Barbara Andersen sent a "Request for Medical Information" with an attached copy of Higgins's release to Dr. Citta and Midlands Family Medicine on or about October 24, 2014. The Request for Medical Information asked Midlands Family Medicine to provide Higgins's "entire medical chart, including diagnostic test results and prognosis." Id. ¶ 58.
In a May 18, 2015, letter, Dr. Citta wrote:
ECF No. 65, Page ID 889. Higgins stated in his deposition that one of Dr. Citta's employees told Higgins that Citta's office sent Higgins's entire medical file to Union Pacific. Higgins Dep. 186:10-16, ECF No. 52, Page ID 296.
At Midlands Family Medicine, Donna Hines, a medical records clerk, initially received the request for Higgins's records. Supp. Brief ¶ 63, ECF No. 56, Page ID 491. In her deposition, Hines stated that her regular practice was not to send a patient's entire medical file but rather to provide only the documents related to a specific date request and that if she received a request for an individual's entire medical chart, she would not provide it without further documentation. Id. 64.
In September 2014, in connection with Higgins's FCE, Union Pacific inquired of Dr. Citta about Higgins's back injuries. Id. ¶ 66, Page ID 491. Dr. Citta responded on October 2, 2014, stating that Union Pacific should "[c]ontinue allowing [Higgins] to layoff as needed secondary to his back pain as per the agreement from 1999." Id. (quoting Citta Ltr., ECF No. 52-12, Page ID 339). Dr. Citta also wrote that Union Pacific should "[c]ontinue providing at least 24 hours off between shifts or trips." Id. ¶ 67, Page ID 492 (quoting Citta Ltr., ECF No. 52-12, Page ID 339). The parties agree that the letter should have said Union Pacific needed to occasionally provide 24 hours of rest. Id. Although Higgins discussed the omission with Dr. Citta, Higgins did not clarify the matter with his superiors at Union Pacific, because he believed Union Pacific understood what was meant. Id. ¶ 68.
After discussions with Higgins and a review of various documentation from Dr. Citta, Union Pacific's Health and Medical Services Department updated Higgins's permanent restrictions as "1. May sit up to 6 hours intermittently;" "2. May stand up to 2 hours intermittently;" "3. May walk up to 2 hours intermittently;" "4. May work 8-12 hours per day;" "5. May lift up to 20 pounds frequently (33-66% of workshift);" "6. May lift 21 to 100 pounds occasionally (5-33% of workshift);" "7. May never lift over 100 pounds;" "8. Must have 24 hours rest per shift (between shifts)." Id. ¶ 78, Page ID 494 (quoting ECF No. 52-30, Page ID 473).
Higgins admits that these were appropriate restrictions, except that he needed 24 hours of rest between shifts only occasionally, and the restrictions should have indicated that he had to be allowed to lay off as needed. Id. ¶ 79, see Opp. Brief ¶ 79, Page ID 586.
On December 4, 2014, Union Pacific sent Higgins a letter that stated Union Pacific could not accommodate Higgins's permanent restrictions. Id. ¶ 88, Page ID 496. That same day, Union Pacific sent another letter to Higgins advising him of his options and instructing him to call Union Pacific's Disability Management Department
Higgins filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on January 15, 2015, alleging violations of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The EEOC issued Higgins a right-to-sue letter on September 23, 2016. Higgins filed this action on December 9, 2016. In his Complaint, ECF No. 1, Higgins alleged various violations of the ADA, including "Disability Discrimination — Disparate Treatment" (Counts I & IV), Unlawful Medical Inquiries (Count II), Failure to Accommodate (Count III), and Retaliation (Count V), as well as violations of GINA (Count VI) and the Family Medical Leave Act (FMLA) (Count VII).
"Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c)). "Summary judgment is not disfavored and is designed for every action." Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view "the record in the light most favorable to the nonmoving party ... drawing all reasonable inferences in that party's favor." Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, "Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party need not produce evidence showing "the absence of a genuine issue of material fact." Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477 U.S. at 325, 106 S.Ct. 2548). Instead, "the burden on the moving party may be discharged by `showing' ... that there is an absence of evidence to support the nonmoving party's case." St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325, 106 S.Ct. 2548).
In response to the moving party's showing, the nonmoving party's burden is to produce "specific facts sufficient to raise a genuine issue for trial." Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial." Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). "[T]here must be more than the mere existence of some alleged factual dispute" between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).
Union Pacific has moved for summary judgment on all of Higgins's claims. Higgins does not dispute that his FMLA claim should be dismissed. The Court will examine his remaining claims under the ADA and GINA.
The ADA prohibits covered employers from discriminating against "a qualified individual" on the basis of a disability with regard to the terms and conditions of the individual's employment. 42 U.S.C. § 12112. When, as here, a plaintiff brings an ADA claim supported by circumstantial evidence, the claim is analyzed under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Cody v. Prairie Ethanol, LLC, 763 F.3d 992, 996 (8th Cir. 2014). Under this framework, a plaintiff must first establish a prima facie case of discrimination. Id. "The burden then shifts to defendant to articulate a legitimate, nondiscriminatory reason for its action. If defendant meets that minimal burden, plaintiff must show that the proffered nondiscriminatory reason is merely a pretext for unlawful ... discrimination." Id. (alteration in original) (quoting Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th Cir. 2003)).
To establish his prima facie case, Higgins must establish that he (1) is disabled within the meaning of the ADA; (2) is qualified to carry out the essential functions of his position with or without a reasonable accommodation; and (3) suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Lowery v. Hazelwood School Dist., 244 F.3d 654, 657 (8th Cir. 2001).
The parties dispute whether Higgins's ailments render him disabled under the ADA. The Court does not reach this issue because, even if Higgins is disabled under the ADA, he is not a qualified individual, and his claim fails for that reason. In establishing a prima facie case, a plaintiff must show "that he was qualified to perform the essential functions of his position, with or without reasonable accommodation." Otto v. City of Victoria, 685 F.3d 755, 758 (8th Cir. 2012) (citing 42 U.S.C. § 12111(8)-(9); Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999)).
"The determination of qualification involves a two-fold inquiry: (1) whether the individual meets the necessary prerequisites for the job, such as education, experience, training, and the like; and (2) whether the individual can perform the essential job functions, with or without reasonable accommodation." Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir. 2000) (citing Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1111-12 (8th Cir. 1995)). "If the employee establishes that she cannot perform the essential functions of the job without accommodation, she must also make a facial showing that reasonable accommodation is possible and that the accommodation will allow her to perform the essential functions of the job." Burchett v.
Union Pacific argues that Higgins was unqualified because his need to lay off as required by his discomfort prevented him from performing an essential function of his job. According to Union Pacific, such an accommodation would have violated the attendance policy and meant that Higgins was working less than full time. "[R]egular attendance at work is an essential function of employment." Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008) (citing Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1048 (8th Cir. 1999)); see Moore v. Payless Shoe Source, Inc., 187 F.3d 845, 848 (8th Cir. 1999) ("An employee who is `unable to come to work on a regular basis [is] unable to satisfy any of the functions of the job in question, much less the essential ones.'" (alteration in original) (quoting Halperin v. Abacus Tech. Corp., 128 F.3d 191, 198 (4th Cir. 1997))).
Higgins argues that full-time attendance was not an essential function of his job because allowing him to lay off as needed was a reasonable accommodation. Opp. Brief, ECF No. 62, Page ID 621 ("The `determination of what functions are essential is fact-specific.' And the facts of this case clearly demonstrate that accommodating Higgins's occasional layoffs was possible and reasonable, since [Union Pacific] did just that for 25 years." (internal citation omitted) (quoting Barnes v. Nw. Iowa Health Ctr., 238 F.Supp.2d 1053, 1082 (N.D. Iowa 2002))).
The U.S. Court of Appeals for the Eighth Circuit has held that "an employee who cannot attend work cannot perform the essential functions of his job" even if "the absences are with the employer's permission." Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961, 966 (8th Cir. 2006) (citing Pickens v. Soo Line R.R. Co., 264 F.3d 773, 777 (8th Cir. 2001)). In Pickens, the plaintiff was a railroad conductor who suffered an on-the-job back injury. Because of the back injury, the plaintiff "regularly made himself unavailable for work by exercising his right to `lay off' under the railroad's collective bargaining agreement." Pickens, 264 F.3d at 775 & n.3. After his termination, the plaintiff brought suit under the ADA, arguing that he was a qualified individual "regardless of his excessive absences given the nature of the railroad's scheduling structure," which allowed him to lay off at his choosing. Id. at 777. The Eighth Circuit rejected that argument and held that "[e]ven though the railroad's system of scheduling appears quite flexible, the railroad's policy requires regular, reliable attendance, and [the plaintiff's] job was full-time." Id. The court noted its prior holding that the "`[u]nfettered ability to leave work at any time is certainly not a reasonable accommodation,' and an employer is not required by the ADA to provide an unlimited absentee policy." Pickens, 264 F.3d at 778 (quoting Buckles v. First Data Res., Inc., 176 F.3d 1098, 1101 (8th Cir. 1999)). Although the court acknowledged that "[t]he ADA does cite a part-time or modified work schedule as a reasonable means of accommodation," id. (citing 42 U.S.C. § 12111(9)(B)), it ultimately concluded that the plaintiff's proposed method of "work[ing] only when he feels like working" was unreasonable as a matter of law. Id.
Here, as in Pickens, Higgins used his employer's lay-off scheduling mechanism — as well as his prior agreement with Union Pacific — to balance his work and his back pain. And, as in Pickens, Higgins accumulated a large number of a lay-offs
Higgins's Failure to Accommodate claim fails for the same reason as his claim for disparate treatment. The ADA's prohibition of discrimination "against a qualified individual on the basis of disability," 42 U.S.C. § 12112(a), includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee." 42 U.S.C. § 12112(b)(5)(A); Battle v. United Parcel Serv., Inc., 438 F.3d 856, 862 (8th Cir. 2006) ("Under the ADA, an employer is required to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee with a disability, unless the requisite accommodation would impose an undue hardship on the employer's business.").
Although discriminatory intent is not required in a failure-to-accommodate case, see Peebles v. Potter, 354 F.3d 761, 765-67 (8th Cir. 2004),
For the reasons discussed above, Higgins's inability to attend work with sufficient regularity prevents him from fulfilling an essential function of his position and disqualifies him under the ADA.
Higgins also argues that his accommodation claim should proceed because Union Pacific failed to engage in an interactive process to determine if it could reasonably accommodate Higgins's disability. "Where the employee requests accommodation, the employer must engage in an `informal, interactive process' with the employee to identify the limitations caused by the disability and the potential reasonable accommodations to overcome those limitations. Battle, 438 F.3d at 862 (8th Cir. 2006) (quoting Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951 (8th Cir. 1999)). Even if Union Pacific did not engage
Under the ADA, discrimination against a qualified individual includes:
42 U.S.C. § 12112.
Higgins argues that Union Pacific's "practice of allowing non-physician managers to refer employees to fitness for duty evaluations, and then interact with the Health and Medical Services Department to influence the course of those fitness for duty evaluations, is a facially-neutral policy that has a disparate impact on individuals with disabilities." Opp. Brief, ECF No. 62, Page ID 633.
"A plaintiff in a disparate impact case must first establish a prima facie case of disparate impact by identifying a specific employment practice and then presenting statistical evidence of a kind and degree sufficient to show that the practice in question caused the plaintiff to suffer adverse employment action because of his or her membership in a protected group." Evers v. Alliant Techsystems, Inc., 241 F.3d 948, 953 (8th Cir. 2001) (citing Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)). "If the plaintiff succeeds in making this prima facie showing, the burden then shifts to the employer to produce evidence demonstrating a legitimate business reason for the challenged practice." Id. (citing Watson, 487 U.S. at 997-98, 108 S.Ct. 2777).
As with Higgins's disparate treatment claim and his failure to accommodate claim, Count IV fails because Higgins is not a qualified individual under the ADA. The Court also notes that Higgins has not introduced any statistical evidence to show that Union Pacific's FFD policy has a disparate impact. Higgins argues that such evidence is not explicitly required under Eighth Circuit law. Even if his assertion were true — a question the Court does not reach — Higgins failed to rebut Union Pacific's evidence demonstrating a legitimate reason for the FFD policy. Specifically, Union Pacific presented evidence that managerial referrals of employees for FFDs is rooted in train safety. Higgins's experience makes this plain: Higgins reported experiencing a debilitating panic attack while responsible for the safety of a traveling locomotive, a situation obviously requiring immediate removal from his job duties, and referral for a medical evaluation. Higgins implies that such referrals should be made by medical professionals. But requiring that managers confer with medical professionals simply to refer an employee to medical professionals would insert a redundancy into a process that could result in catastrophe and loss of life. Such is not required by the ADA.
The ADA makes it unlawful for an employer to "coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter." 42 U.S.C. § 12203. Higgins alleges that Union Pacific "intimidated, threatened, and interfered with Higgins in response to his enjoyment of the legally-mandated, and agreed-upon, reasonable accommodation," i.e., his permission to lay off as needed. ECF No. 62, Page ID 634. "Direct evidence of retaliation is evidence that demonstrates a specific link between a materially adverse action and the protected conduct, sufficient to support a finding by a reasonable fact finder that the harmful adverse-action was in retaliation for the protected conduct." Lors v. Dean, 746 F.3d 857, 865 (8th Cir. 2014) (quoting Young-Losee v. Graphic Packaging In'l, Inc., 631 F.3d 909, 912 (8th Cir. 2011)).
As stated, Higgins is not a qualified individual under the ADA and his proposed accommodation, that he lay off as needed, was unreasonable. The only evidence of retaliation Higgins identifies is the "letters and notices of investigation regarding attendance, which UP sent to Higgins in 1998, 2007-08, and again in 2013-14...."
Under the ADA "[a] covered entity ... 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."
Higgins primary evidence
Without establishing that Union Pacific received the entire medical chart, Higgins cannot show he was injured by Union Pacific's violation. Plaintiffs asserting claims under § 12112(d) must establish that the violation "caused some sort of tangible injury." Cossette v. Minnesota Power & Light, 188 F.3d 964, 970 (8th Cir. 1999). If Union Pacific did not receive Higgins's file, it could not have taken any injurious action based on the file's contents.
Higgins also argues that because he has alleged entitlement to punitive damages, he need not show injury-in-fact. Union Pacific contends that injury-in-fact must be shown first, to establish liability, and is an analytically-distinct predicate to the question of what damages, punitive or otherwise, are owed a plaintiff. ECF No. 68, Page ID 992 (citing Armstrong v. Turner Indus., Inc., 141 F.3d 554, 559 (5th Cir. 1998)). The Court does not reach this issue because, even if Higgins can use his claim to punitive damages to sidestep the injury-in-fact requirement, he has not shown he is entitled to them.
"Although punitive damages are available in ADA cases, they are limited `to cases in which the employer has engaged in intentional discrimination and has done so with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 903 (8th Cir. 2006)
Higgins also presents a similar claim for unlawful medical inquiry, pursuant to GINA. Under GINA, it is unlawful for an employer to "request, require, or purchase" genetic information from an employee. 42 U.S.C. § 2000ff-1(b). Requesting genetic information includes "making requests for information about an individual's current health status in a way that is likely to result in a covered entity obtaining genetic information." 29 C.F.R. § 1635.8(a). "The term `genetic information' means, with respect to any individual, information about — (i) such individual's genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual." 42 U.S.C. § 2000ff(4).
As with Count II, Higgins has not presented evidence to establish an injury-in-fact or to show that Union Pacific's request for medical information was conducted with the requisite state of mind to merit punitive damages. Count VI fails as well.
For the reasons stated above, the Motion for Summary Judgment, ECF No. 49 will be granted, and Higgins's complaint will be dismissed, with prejudice. Higgins also moved for oral arguments, however, the Court finds that the parties' briefs were sufficiently helpful in evaluating the issues raised in Union Pacific's motion. Accordingly,
IT IS ORDERED:
