United States District Court, D. Arizona
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 ...