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Montgomery v. Union Pacific Railroad Co.

United States District Court, D. Arizona

April 23, 2019

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

          ORDER

          HONORABLE ROSEMARY MARQUEZ, UNITED STATES DISTRICT JUAGE

         Pending before the Court is Plaintiff Thomas Montgomery's Motion to Bifurcate. (Doc. 77.) The motion is fully briefed and suitable for determination without oral argument. (Docs. 92, 98.) For the following reasons, Plaintiff's request to bifurcate the trial into liability and damages phases will be granted.

         I. Factual & Procedural History

         This lawsuit arises from Defendant Union Pacific Railroad Company's decision to rescind an offer of employment to Plaintiff. In October 2014, Defendant offered Plaintiff a position on its train crew, conditioned on Plaintiff satisfying certain medical requirements. During the medical-examination process, Plaintiff disclosed that he had suffered a brain aneurysm in January 2012. Determining that Plaintiff posed a risk of sudden incapacitation greater than 1% per year, Defendant rescinded the offer of employment.

         Plaintiff alleges three claims against Defendant. In Count One, Plaintiff alleges that Defendant discriminated on the basis of disability by rescinding the offer of employment due to Plaintiff's brain aneurysm, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a). In Count Two, Plaintiff alleges that Defendant's 1% policy constitutes unlawful screening on the basis of disability, in violation of the ADA, 42 U.S.C. § 12112(a) and (b)(6). In Count Three, Plaintiff alleges that Defendant violated the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff-1(b), by requesting his family medical history.

         On November 21, 2018, the Court denied Defendant's motion for summary judgment. (Doc. 70.) On December 21, 2018, the parties filed a Joint Proposed Pretrial Order. (Doc. 72.) The parties filed various pretrial motions on February 7, 2019, Plaintiff's Motion to Bifurcate among them. (Docs. 77, 80, 81, 82, 83, 84, 85.)

         The Motion to Bifurcate concerns the following additional facts: Prior to applying for a job with Defendant, Plaintiff was a production manager at Gale Insulation for nearly 20 years. Plaintiff was terminated from that position for taking his work-issued vehicle home in violation of company policy. After Gale Insulation, Plaintiff worked for BNSF Railway Company (“BNSF”) for approximately one year. During his employment with BNSF, Plaintiff was involved in a car derailment. As a result, Plaintiff participated in BNSF's alternative handling process, a non-disciplinary response to rule violations. The derailment incident did not appear on Plaintiff's employment record.

         In his application for employment with BNSF, Plaintiff falsely stated that he was “laid off” from Gale Insulation. In his application for employment with Defendant, Plaintiff falsely stated that he left Gale Insulation due to “downsizing.” Furthermore, in response to the question, “Have you ever been fired, asked to resign, forced to leave a position, or had your employment involuntarily terminated in the last two (2) years, ” Plaintiff answered “NO.” Plaintiff also answered “NO” to the question: “Have you been disciplined for any work related safety violations in the past two years?”

         Defendant's policy is to not accept candidates who have been disciplined for any work-related safety violations or who have been involuntarily terminated in the two years preceding the application for employment. Both Plaintiff's involuntarily termination and safety incident would have independently disqualified Plaintiff from employment with Defendant, had he disclosed them. There is, however, no evidence that Defendant knew of Plaintiff's misrepresentations when deciding to revoke the offer of employment.

         II. Standard of Review

         Rule 42(b) of the Federal Rules of Civil Procedure permits district courts to bifurcate trials “[f]or convenience, to avoid prejudice, or to expedite and economize.” “It is clear that Rule 42(b) gives the courts the authority to separate trials into liability and damages phases.” Estate of Diaz v. City of Anaheim, 840 F.3d 592, 601 (9th Cir. 2016) (alteration omitted) (quoting De Anda v. City of Long Beach, 7 F.3d 1418, 1421 (9th Cir. 1993)).

         III. Discussion

         A. Prejudice

         Plaintiff asserts that separate trials on liability and damages are necessary to avoid unfair prejudice associated with Defendant's after-acquired evidence, i.e., evidence of employee wrongdoing that is discovered after the allegedly discriminatory employment decision. See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1070-71 (9th Cir. 2004). The after-acquired evidence in this case-i.e., Plaintiff's false statements that he had not been terminated and that he had no safety violations-is not relevant to Defendant's decision to rescind the offer of employment. See McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 360 (1995) (“The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason.”) ...


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