Montgomery v. Union Pacific Railroad Co.

          ORDER

          Honorable Rosemary Marquez United States District Judge

         Pending before the Court is Defendant Union Pacific Railroad Company's Motion for Summary Judgment. (Doc. 58.) The Motion is fully briefed and suitable for determination without oral argument. (Docs. 65, 69.) For the following reasons, the Motion is denied.

         I. Background^[1]

         A. Defendant's Train Crew Position

         A position on Defendant's Train Crew is an entry-level position. (DSOF ¶ 1.) The essential functions of a Train Crew position include, but are not limited to: operating locomotive equipment; applying and releasing hand brakes; riding rail cars; climbing onto and off of equipment; maintaining balance and coordination on equipment; reacting quickly to situations; operating various designs of track switches and derails; observing or monitoring track conditions, the railroad right-of-way, and passing trains; inspecting all train cars and other equipment before leaving the yard or as needed; observing, interpreting, and relaying hand, lantern, and other signals affecting the movement of the train; and judging and controlling the speed and clearance distance of cars. (DSOF ¶¶ 3- 5.) The parties agree that employees working on the Train Crew work alone next to live train tracks and may cross or work between rail cars, although they disagree as to how frequently employees do those tasks alone. (DSOF ¶ 6; PSOF ¶ 6.)

         The parties also agree that Defendant's job description repeatedly states the importance of safety in Train Crew positions: applicants “must have zero work related safety violations in the past two years” and “must practice safe work habits to prevent on the job accidents and injuries.” (DSOF ¶ 9.) The parties dispute, however, whether the essential functions of a Train Crew position include the ability to perform the job safely. Defendant asserts that because it considers Train Crew positions particularly safety-sensitive, the ability to safely perform the job duties is an essential function of the Train Crew position. (DSOF ¶¶ 7-8.) Plaintiff asserts that Defendant's Train Crew job description does not require an applicant to perform the essential functions safely, only that the applicant merely be physically able to perform them. (PSOF ¶ 8.)

         Prior to clearing a Train Crew member for employment, Defendant requires applicants to complete a Health History Questionnaire and an in-person physical examination at Logistics Health Incorporated (“LHI”). (DSOF ¶ 10.) LHI then sends the applicant's records to Defendant's Health and Medical Services office, where the fitness-for-duty nurses review the file and work with an Associate Medical Director to determine if there are any health issues that may pose a safety concern. (DSOF ¶ 11.) The Associate Medical Director determines if there is a significant direct threat or an issue with the applicant meeting the essential functions of the job. (DSOF ¶ 11.) The Chief Medical Officer, Dr. John Holland, weighs in as appropriate. (DSOF ¶ 11.)

         Defendant imposes work restrictions on employees with a risk of sudden incapacitation greater than 1% per year. (DSOF ¶ 18.) Defendant bases its work restrictions in part on the Medical Examiner Handbook for the Federal Motor Carrier Safety Administration (“FMCSA”). (DSOF ¶ 19.) The FMCSA is the lead federal agency responsible for regulating and providing safety oversight of commercial trucking. (DSOF ¶ 20.) For several decades, the FMCSA has published and revised guidance for medical examiners regarding how they should evaluate whether a commercial driver is fit for duty in terms of safety. (DSOF ¶ 20.) The FMCSA handbook is based on systematic literature reviews and panels of medical experts who have reviewed the literature and provided guidance. (DSOF ¶ 21.) The FMCSA is particularly concerned with sudden incapacitation and physical impairments that affect safety at work. (DSOF ¶ 21.)

         Defendants assert that the FMCSA Handbook is one of the most extensive sets of literature regarding fitness-for-duty criteria for any agency within the U.S. Department of Transportation, and, thus, Defendant uses it as one of several sources when evaluating railroad workers in safety-critical positions. (DSOF ¶ 22.) Plaintiff disputes that the FMCSA Handbook sets fitness-for-duty criteria for other agencies within the Department of Transportation. (PSOF ¶ 22.) Plaintiff further disputes that the FMCSA Handbook requires Defendant to apply its 1% policy to employees who do not require a commercial driver's license to do their jobs, and that the 1% policy is in accordance with current leading medical literature. (PSOF ¶ 19; PSSF ¶ 32.)

         B. Plaintiff's Medical Condition

         In January 2012, Plaintiff suffered a ruptured cerebral aneurysm and related subarachnoid hemorrhage. (DSOF ¶¶ 30, 50.) Plaintiff described the symptoms of his aneurysm as beginning with a snap, followed by “a rush of water filling up [his] head, ” followed in turn by heat flashes, nausea, and black spots in his vision. (DSOF ¶ 42.) Plaintiff's physician treated this condition by endovascular insertion of a metal coil into the aneurysm. (DSOF ¶ 31.)

         The parties dispute, based on medical literature and expert testimony, the risk that Plaintiff will have another aneurysm or otherwise become suddenly incapacitated. Defendant states that Plaintiff has a risk of recurrent rupture or seizure greater than 1% per year. (DSOF ¶¶ 33-34, 36-37, 39-41.) Defendant states that the FMCSA Handbook recommends a minimum waiting period of five years for safety-sensitive positions after an “intracerebral or subarachnoid hemorrhage with risk for seizures.” (DSOF ¶ 43.) Plaintiff asserts that his risk of sudden incapacitation, due to either seizures or a recurrent rupture, is less than 1%. (PSOF ¶¶ 33-34, 36-37, 39-41; PSSF ¶ 2.) Plaintiff disputes that the FMCSA Handbook applies, but asserts that if the FMCSA Handbook does apply, the applicable waiting period is the one-year period recommended for individuals who suffered an intracerebral or subarachnoid hemorrhage without risk of seizures. (PSOF ¶ 43; PSSF ¶ 35.)

         C. Offer of Employment and Medical Evaluation

         On August 8, 2014, less than three years after his aneurysm, Plaintiff applied for a position on Defendant's Train Crew. (DSOF ¶¶ 23, 45.) At the time of Plaintiff's application, he worked for BNSF Railway Company (“BNSF”) as a Train Service Conductor Trainee, a position designated as safety-sensitive and nearly identical to a Train Crew position with Defendant. (PSSF ¶¶ 5-6, 12.) Plaintiff's offer from BNSF was conditioned upon the passage of a medical examination. (PSSF ¶ 6.) Plaintiff provided information to BNSF about his aneurysm, including a letter from his physician stating that he had made “an excellent recovery” and was free from “work restrictions, ” and BNSF cleared him to begin work. (PSSF ¶¶ 7-9.) Plaintiff suffered no seizures, rebleeds, instances of sudden incapacitation, or other neurological events during his almost year-long tenure at BNSF. (PSSF ¶ 10.)

         On October 23, 2014, Defendant extended a job offer to Plaintiff. (DSOF ¶ 24.) The job offer was expressly conditioned upon Plaintiff passing the Preplacement Medical Evaluation (“PME”) conducted by Defendant's Health and Medical Services Department. (DSOF ¶ 24.) Plaintiff accepted the conditional job offer on or about October 26, 2014. (DSOF ¶ 26.)

         As part of the PME, Plaintiff completed and signed a Health History Questionnaire. (DSOF ¶ 27.) Upon completion of the Health History Questionnaire, a standard preplacement examination was scheduled for November 10, 2014, between Plaintiff and LHI, Defendant's third-party medical examiner. (DSOF ¶ 29.) During the PME process, Plaintiff informed the medical examiner that he had suffered a ruptured cerebral aneurysm and related subarachnoid hemorrhage. (DSOF ¶ 30.) Plaintiff informed the PME examiner that his physician treated the brain condition by endovascular insertion of a metal coil into the aneurysm. (DSOF ¶ 31.) Plaintiff's disclosure of his brain condition resulted in the flagging of his PME for further review by Defendant's fitness-for-duty nurses. (DSOF ¶ 46.) LHI provided Defendant's nurses with a copy of the Health History Questionnaire and LHI's PME form. (DSOF ¶ 46.)

         On November 20, 2014, Defendant requested additional documentation to assist in its pre-employment medical assessment. (DSOF ¶ 47.) Specifically, Defendant requested a copy of the neurologist clinic notes from Plaintiff's 2014 office visit and a copy of the 2014 MRI report. (DSOF ¶ 47.) Defendant's request did not contain a warning advising Plaintiff's physicians to redact or exclude Plaintiff's genetic or family health information. (PSSF ¶ 16.)

         On November 25, 2014, Plaintiff was examined by his medical provider and underwent an MRI. (DSOF ¶ 48.) Copies of the documents from that examination were sent to Defendant on November 26, 2014. (DSOF ¶ 48.) On December 3, 2014, Plaintiff requested that another physician send notes of his physical examinations and MRI results via facsimile. (DSOF ¶ 48.) Plaintiff's medical records from April 27, 2012, indicate that Plaintiff experienced memory, concentration, and stamina problems following surgery. (DSOF ¶ 51.)^[2]

         On December 16, 2014, Dr. John Charbonneau (one of Defendant's contracted medical doctors) noted two primary areas of concern: Plaintiff's brain condition, and Plaintiff's Obstructive Sleep Apnea. (DSOF ¶ 52.) Dr. Charbonneau believed that Plaintiff's medical issues created an increased risk for sudden incapacitation. (DSOF ¶ 52.) The next step in Defendant's assessment was for Dr. Charbonneau and Chief Medical Officer Dr. Holland to review and discuss Plaintiff's medical records with Occupational Health Nurse Bridgette Ziemer during a conference call on December 23, 2014. (DSOF ¶ 53.) In that call, Defendant ultimately determined that Plaintiff's potential for future aneurysms made him unfit for a Train Crew position. (DSOF ¶ 53.)

         Due to its decision that Plaintiff's medical condition created an unreasonable risk of sudden incapacitation, Defendant revoked its conditional offer of employment. (DSOF ¶ 58.) Defendant did not consider Plaintiff to be permanently restricted from a Train Crew position, but rather determined that Plaintiff's brain condition likely required a five-year work restriction (under the FMCSA Handbook) due to the potential risk of seizure, with reevaluation at that time. (DSOF ¶ 59.)

         D. Plaintiff's Genetic Information

         The only medical information Defendant requested as part of its assessment of Plaintiff's fitness for duty was the information provided in the Health History Questionnaire, LHI's visit notes, and neurologist clinic notes from Plaintiff's 2014 office visit and a copy of the 2014 MRI report. (DSOF ¶ 62.) None of the questions on the Health History Questionnaire request information regarding family medical history or other genetic information. (DSOF ¶ 63.) In the medical records provided to Defendant, Plaintiff's neurosurgeon states under the family history section: “Entire family history is negative, ” and “Father deceased at the age of 76 from unknown cause.” (DSOF ¶ 64.) At no time did Defendant make any medical inquiry beyond the information to conduct the PME, and Defendant made no inquiry ...