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Montgomery v. Union Pacific Railroad Company

United States District Court, D. Arizona

April 23, 2019

Thomas Montgomery, et al., Plaintiffs,
Union Pacific Railroad Company, Defendant.



         Pending before the Court are the parties' Motions in Limine (Docs. 80, 81, 82, 83, 84, 85).[1] The motions are suitable for determination without oral argument.

         I. Background

         This lawsuit arises from Defendant Union Pacific Railroad Company's decision to rescind a job offer to Plaintiff after learning that Plaintiff had suffered a brain aneurysm less than three years prior. Plaintiff brings three claims. In Count One, he alleges that Defendant rescinded his job offer based on disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a). In Count Two, Plaintiff alleges that Defendant's policy to not hire individuals who have a sudden risk of incapacitation greater than 1% per year constitutes unlawful screening in violation of the ADA, 42 U.S.C. § 12112(a) and (b)(6). In Count Three, Plaintiff alleges that Defendant unlawfully requested his family medical history in violation of the Genetic Information Nondiscrimation Act (“GINA”), 42 U.S.C. § 2000ff-1(b).

         II. Plaintiff's Motions in Limine

         A. Whether Plaintiff is Disabled

         ADA claims require, among other things, proof that the plaintiff “is disabled within the meaning of the ADA.” Nunies v. HIE Holdings, Inc., 908 F.3d 428, 433 (9th Cir. 2018), as amended. “The term ‘disability' means . . . (A) a physical or mental impairment that substantially limits one or more major life activities . . .; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Id. (quoting 42 U.S.C. § 12102(1)(A)-(C)). A person is “regarded as having such an impairment” if “the individual establishes that he or she has been subjected to an action . . . because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A).

         Plaintiff argues that Defendant should be precluded from arguing that he is not disabled because, regardless of whether he is actually disabled, 42 U.S.C. § 12102(1)(A), he was regarded as being disabled when Defendant rescinded the job offer based on perceived risk of sudden incapacitation, id. § 12102(1)(C). Defendant complains that Plaintiff's motion is a disguised (and untimely) motion for summary judgment and argues that Plaintiff must prove all elements of his claim.

         The motion will be denied. Defendant has not conceded that Plaintiff is disabled or that it regarded Plaintiff as disabled. It is Plaintiff's burden to prove each element of his claims. This includes whether he meets the ADA's definition of “disabled.”

         B. 2017 Meta-Analysis

         During discovery, Dr. John Holland opined, based in part on a 2017 meta-analysis, that Plaintiff's risk of sudden incapacitation was approximately 5%. Plaintiff argues that the meta-analysis should be excluded because it was published approximately three years after the decision to rescind his job offer, and all other testifying doctors and experts dispute the meta-analysis' relevance. Defendant concedes that its direct-threat defense must be analyzed based on information available at the time of the employment decision but argues that after-the-fact medical studies are nevertheless relevant to whether the decision was objectively reasonable. Defendant also raises a fairness argument, pointing out that Plaintiff's counsel refuses to agree to not present evidence favorable to Plaintiff but also not available at the time of the employment decision, i.e., that Plaintiff suffered no neurological incidents following the employment decision.

         The motion will be denied. Expert evidence offered after the employment decision may be relevant to “whether the opinion that a direct threat existed was objectively reasonable.” Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1033 (9th Cir. 2003) (emphasis in original) (admitting after-the-fact expert opinions). Furthermore, although the meta-analysis itself was not available at the time of the employment decision, Plaintiff has not established that “the body of medical knowledge” contained in the meta-analysis “was not available at the time, i.e., was beyond the then ‘most current medical knowledge.'” Id. Finally, the Court disagrees that the meta-analysis' relevance is substantially outweighed by any of the factors set forth in Rule 403.

         C. Train Accidents

         Defendant presented evidence of two train accidents in connection with its motion for summary judgment. The first accident was caused in part due to untreated sleep apnea. The second accident was caused by sudden incapacitation due to seizure. Plaintiff argues that evidence of these accidents (in the form of official reports) is irrelevant for two reasons: (1) the causes of the accidents were not determined until after Defendant's employment decision and thus could not have factored into the decision, and (2) the conditions that caused the accidents (sleep apnea and seizures) are different from the subarachnoid hemorrhage suffered by Plaintiff. Plaintiff also argues that evidence of catastrophic train accidents is unduly prejudicial under Rule 403. Defendant responds that the train accidents have relevance external to the employment decision and that its primary concern is the risk of sudden incapacitation, not the specific medical condition that may cause sudden incapacitation.

         The motion will be denied. Evidence of train accidents caused by sudden incapacitation is relevant to Defendant's direct-threat defense, which requires examination of “[t]he nature and severity of the potential harm” if the job is not safely performed. 29 C.F.R. § 1630.2(r)(2); see Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86 (2002). In view of this inquiry, what Plaintiff describes as prejudice is more akin to probative value: the evidence is undeniably informative regarding the potentially disastrous consequences of sudden incapacitation in a train-crew position. Next, Plaintiff's reliance on the differing medical conditions is a red herring. Defendant has consistently maintained that it places considerable emphasis on the risk of sudden incapacitation-not the specific medical condition that may cause sudden incapacitation.

         D. Plaintiff's Employment with Gale Insulation

         Plaintiff was employed with Gale Insulation from 1993 to approximately 2013. He was terminated for taking his company vehicle home in violation of the company's standard operating procedures. Plaintiff applied to work at BNSF Railway Company in late 2013, indicating on his application that he was “laid off” from Gale Insulation. Subsequently, Plaintiff applied for a position with Defendant, indicating on his application that he left Gale Insulation due to “downsizing.” Following the revocation of his job offer with Defendant, Plaintiff applied at United Subcontractors, Inc., indicating on his application that he left Gale Insulation due to an “SOP violation.” Plaintiff appears to concede that his “downsizing” statement to Defendant is admissible. He also appears to concede that the fact that he was terminated for violating company policy is admissible. He contends, however, that his statements to other employers about his departure from Gale Insulation are inadmissible. He argues that the statements are irrelevant or have only limited relevance that is substantially outweighed by a risk of unfair prejudice, and that the statements constitute improper character or habit evidence under Federal Rule of Evidence 404(b). Defendant argues that Plaintiff's statements to other employers are admissible impeachment evidence within the scope of Federal Rule of Evidence 608(b).

         The motion will be granted. The parties concede the admissibility of evidence that Plaintiff was terminated for violating Gale Insulation's policies and concealed that fact from Defendant. This after-acquired evidence will be admissible only in the damages phase of the trial. Statements that Plaintiff made to other employers about his termination, however, are largely irrelevant. Whatever slight probative value the statements have towards impeachment is substantially outweighed by the risk of prejudice. See Fed. R. Evid. 403.

         E. Plaintiff's Termination from United Subcontractors, Inc.

         Shortly after having his offer of employment with Defendant revoked, Plaintiff began employment at United Subcontractors, Inc. Plaintiff was terminated several months later. Plaintiff acknowledges that his termination could be relevant to whether he mitigated damages after being denied employment with Defendant. He contends that any such relevance is low, however, since he actively tried to reenter the workforce, and his termination was due to a lack of revenue, not violation of company rules. He also contends that the limited probative value of his termination is substantially outweighed by the risk of prejudice and misleading and confusing the jury.

         Defendant argues that Plaintiff's termination is relevant to whether he exercised “reasonable diligence” in seeking and maintaining new employment. Defendant disputes Plaintiff's assertion that he was terminated due to a lack of revenue because documents obtained from United Subcontractors, Inc. indicate that Plaintiff was terminated for poor performance and that Plaintiff is ineligible for rehire. Defendant contends that termination due to poor performance, like termination for violating company rules, is relevant to whether a plaintiff mitigated damages.

         The motion will be denied. The evidence is relevant to whether Plaintiff mitigated damages. See Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 230-32 (1982) (describing duty of discrimination plaintiffs “to use reasonable diligence in finding other suitable employment”). Plaintiff's salary at United Subcontractors, Inc. was purportedly higher than his first-year salary with Defendant would have been. A factfinder could reasonably find that Plaintiff failed to mitigate damages by losing a higher-paying job due to poor performance. Cf. Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1279 (4th Cir. 1985) (finding lack of reasonable diligence where plaintiffs were terminated from new employment for violating company rules). Any risk of prejudice posed by the evidence does not substantially outweigh the evidence's probative value.

         Because the evidence is relevant only to damages, Defendant may present it only during the damages phase. This effectively eliminates the risk that the jury would be confused or misled.

         III. Defendant's Motions in Limine

         A. Plaintiff's ...

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