Opinion
CASE NO. 8:02CV486
November 12, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Summary Judgment (Filing No. 27) filed by Defendant the Union Pacific Railroad ("Union Pacific"). Union Pacific seeks summary judgment on all claims brought by Plaintiff David Edmonds on the basis that 1) the claims were not brought within the applicable statute of limitations; 2) Edmonds cannot demonstrate a prima facie case of age or disability discrimination; and 3) even if Edmonds can make out a prima facie case, he is unable to show that Union Pacific's legitimate, nondiscriminatory reasons for its employment actions were actually a pretext to discriminate against him unlawfully. Edmonds opposes the motion. I have considered the parties' briefs and evidence (Filing Nos. 28, 38 and 39), and for the reasons that follow, the Defendant's motion will be granted in large part, but not in its entirety.
Uncontroverted Facts
These facts are taken from the "Uncontroverted Facts" as set forth in the Final Pretrial Order signed by counsel and Magistrate Judge F.A. Gossett. (Filing No. 40).
Union Pacific operates a railroad system in 23 states west of the Mississippi River. Edmonds is a resident of Leavenworth, Kansas, and a former employee of Union Pacific. Edmonds began his employment with Union Pacific in September 1957, and in June 1978, he became a train dispatcher. In December 1981, Edmonds experienced medical problems associated with his neck, which caused radiating pain down his right arm. He had also undergone two prior surgeries on his back in 1971 and 1974. As a result of his previous back surgeries and his neck injury, Union Pacific placed Edmonds on long — term disability.
In early 1982, Edmonds had neck fusion surgery, and, in 1990, Edmonds underwent a double fusion surgery on his neck. In early 1998, Edmonds sought reemployment with Union Pacific as a train dispatcher. Because Union Pacific maintained that Edmonds was no longer qualified to work as a train dispatcher after an absence of almost 18 years, Union Pacific required him to complete the Apprentice Train Dispatching Program.
Edmonds resumed his employment with the Union Pacific in the dispatcher training program on November 16, 1998. The next day, Edmonds informed the Union Pacific that his back was hurting and felt stiff. Edmonds was returned to long term disability status by Union Pacific on November 17, 1998. Approximately one year later, on December 29, 1999, Union Pacific wrote to Edmonds explaining his employment status and the reasons why he was placed on long — term disability. In that correspondence, Union Pacific asked Edmonds to provide the medical support that demonstrated his inability to work.
On December 31, 1999, Edmonds had quadruple heart by — pass surgery. On or about February 22, 2000, Union Pacific received a medical progress note signed by Edmonds' physician stating that Edmonds had coronary bypass surgery in December of 1999. On March 19, 2000, Edmonds filed an administrative charge with the EEOC alleging that he had been discriminated against by Union Pacific based on his age and disability. On March 21, 2000, Union Pacific sent Edmonds a letter acknowledging his interest in returning to work, but informing him that he would have to provide medical documentation on his heart condition before Union Pacific could medically clear him to return to work. On May 16, 2000, Union Pacific received correspondence from Dr. Leah J. Stevens, which included a medical history of Edmonds and a statement that Edmonds' cardiologist and rheumatologist had released him to return to work. On or about September 11, 2000, Edmonds filed a second administrative charge with the EEOC again alleging discrimination on the basis of his age and disability. Edmonds returned to work for a second time on or about January 14, 2002, and was again enrolled in the Apprentice Train Dispatcher Program.
Facts from the Summary Judgment Record
The factual record is sparse relative to the period between November 16, 1998, and the date that Edmonds filed his first charge of discrimination on March 19, 2000. These facts are relevant to the disposition of the statute of limitations issue. The parties agree that Edmonds hurt his neck on November 16, 1998, and that on either November 16 or 17, Union Pacific became aware of Edmonds' discomfort and sent him home until he obtained a medical release to return to work. (Filing No. 28, Edmonds Dep. 23-2, hereafter "Dep.") Edmonds went to his physician who completed the Union Pacific Railroad Medical Progress Report that identified an "anticipated return to work date" of December 7, 1998. (Filing No. 39, Attachment 1 at 9, Schiffermiller Aff. at page 32 hereafter "S.Aff.") In his Charge of Discrimination, Edmonds states that this report was faxed to the Union Pacific. (Dep. at Ex. 3).
From the documents provided by Edmonds in opposition to the motion, which the Court is informed were disclosed to Edmonds by Union Pacific during discovery, it appears that Union Pacific employee Mike Phillips, whose connection with Edmonds is unclear to the Court, received information on November 25, 1998, sufficient to put Union Pacific on notice that Edmonds wanted to return to work. (S.Aff. At 57). What, if anything, the Union Pacific did with that information is not part of this record. Edmonds has stated that he tried unsuccessfully to contact Ron Brew by telephone and by certified mail. (Dep. 27, 35). Edmonds stated that he became frustrated about not being able to talk to anybody at Union Pacific about work (Dep. 30). Edmonds also contacted the Railroad Retirement Board. (Dep. 31). Edmonds eventually contacted Nurse Karen Greni in 1999. (Dep. 29).
In Greni's Affidavit, she states that she was then a Methodist Business Health Systems manager who participated in and coordinated the medical review process at Union Pacific. Her affidavit contains no information about events that occurred in the year between December 1998, and December 1999, except that on December 29, 1999, Greni informed Edmonds in writing that he was on long — term disability status, and she requested medical information from him about his ability to return to work. (Filing No. 28, Ex. 6, Greni Aff. at 2, 3, 5-8, and Ex. A). Edmonds claims that Greni's December 29, 1999, letter to him contains inaccurate information including that Edmonds was unable to continue working because of his pain levels, and that Edmonds requested to be placed back on disability. (Dep. at 37). On December 31, 1999, Edmonds underwent quadruple by — pass surgery, and in February 2000, he was released by his physician to return to work. (Dep. 33, 40, Edmonds Aff. ¶ 12).
On March 19, 2000, Edmonds filed his first Charge of Discrimination, and on September 11, 2000, he filed a second Charge of Discrimination. In both charges, he indicated that he claimed a continuing violation.
Edmonds does not deny that he knew he had been returned to long — term disability status within a few months of November 16, 1998. He began receiving a salary continuation benefit after November 16, 1998, and through approximately March 1999 (Dep. 25-26). At the end of March 1999 or the beginning of April 1999, Edmonds stated that his payments were decreased to the amount he had been receiving under long — term disability. (Dep. 26).
Summary Judgment Standard
Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Philip v. Ford Motor Co., 328 F.3d 1020, 1023 (8th Cir. 2003). The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id. at 586.
Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327. Nevertheless, the Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Kampouris v. St. Louis Symphony Soc'y, 210 F.3d 845, 847 (8th Cir. 2000).
Statute of Limitations
Edmonds' claims are brought under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et. seq. ("ADEA"); the Nebraska Act Prohibiting Unjust Discrimination in Employment Based on Age, Neb. Rev. Stat § 48-1001 et. seq. ("NDEA"); the Americans with Disabilities Act, 42 U.S.C. § 12111, et. seq. ("ADA"), and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. § 48-1101 et. seq. ("NFEPA"). Union Pacific seeks dismissal of all claims on the basis that they are barred by the applicable statute of limitation. In the case of the federal statutes, the ADEA and the ADA, a charge of discrimination must be filed with the EEOC or NEOC within 300 days after the occurrence of the allegedly unlawful discriminatory act. In the case of the state law claims when no administrative charge is filed, then the claims of discrimination must be filed in the court within 300 days after the occurrence of the allegedly unlawful discriminatory act. Thus, claims based on events that occurred before the 300-day limitations period are ordinarily time — barred. Kline v. Kansas City Fire Dept. 175 F.3d 660, 664-665 (8th Cir. 1999). The only exceptions to that rule are in cases where equitable tolling applies or where there is a continuing violation.
In this case, Edmonds filed his first Charge of Discrimination on March 19, 2000, alleging that Union Pacific would not allow him to return to work after November 17, 1998, because of his age and disability in violation of state and federal law. In that charge, Edmonds identified the first discriminatory act as occurring on November 16, 1998, and the last discriminatory act as occurring on February 20, 1999. Union Pacific argues that because Edmonds identified February 20, 1999, as the date that the final act of discrimination occurred, he should have filed his charge within 300 days or by December 18, 1999. Union Pacific argues that, unless the Court finds a continuing violation or that the doctrine of equitable tolling applies, all claims premised on acts taken before December 18, 1999, are time — barred.
As a preliminary matter, I am unwilling to use the February 20, 1999, date upon which to base any limitations calculation in this case. In his deposition, Edmonds explained that nothing relevant occurred on February 20, 1999, and he surmised that the date reflects when the paperwork was completed. (Dep. at 42). The Court finds on this record that Edmonds had facts sufficient to put him on actual notice certainly by April 1999 that, against his wishes, he had been returned to long — term disability status based on his actual receipt of long — term disability benefits. Thus, at the latest, Edmonds should have filed his charge of discrimination or commenced litigation on his state law claims within 300 days of his change in status back to long term disability. Three hundred days after April 1999, would have run on or about the end of February 2000. Therefore, absent equitable tolling or a continuing violation, the March 19, 2000, Charge of Discrimination and this lawsuit were not timely filed so as to preserve actions based on the events of November 1998.
There is no evidence that Edmonds learned any more about his status until Nurse Karen Greni's December 1999, letter, which only confirmed what he had long known — he had been returned to long term disability status. Edmonds has presented no evidence that he was unaware of his status by April 1999. Dep. at 25-28.
Equitable Tolling
"Equitable tolling is appropriate only when the circumstances that cause a plaintiff to miss a filing deadline are out of his hands." Heideman v. PFL, Inc., 904 F.2d 1262, 1266 (8th Cir. 1990), cert. denied, 498 U.S. 1026 (1991). For example, the Supreme Court has indicated that equitable tolling might be appropriate when a claimant has received inadequate notice, when a motion for appointment of counsel was pending, when the court has led the plaintiff to believe that he had done everything required of him, or when affirmative misconduct on the part of the defendant has lulled the plaintiff into inaction. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984).Hallgren v. U.S. Dept. of Energy, 331 F.3d 588, 590 (8th 2003), citations omitted.
Edmonds argues that equitable tolling applies in this case because 1) he was not informed that he had been placed back on disability status and would not be allowed to return to work, 2) Union Pacific continued to make requests for additional medical information from him, and 3) Union Pacific was communicating with his physician without Edmonds' knowledge. Union Pacific argues that Edmonds knew his rights because Edmonds admitted that by March 1999, he was investigating whether Union Pacific was covered by the EEOC, and he had contacted an attorney (Dep. at 28-29).
The Court does not find any evidence to support equitable tolling in this case. The only affirmative action that Union Pacific took was in December 1999, when it corresponded with Edmonds about his employment status. This contact does not constitute affirmative misconduct. While it may be that railroad personnel did not take Edmonds' calls or formally notify Edmonds of the change in his employment status in the weeks following November 1998, the Court finds that these omissions, assuming them to be true, are insufficient to support equitable tolling in this case. Edmonds admits that he realized by April 1999 that he had been returned to long — term disability against his wishes. Union Pacific took no action after that date to lull Edmonds into inaction. Accordingly, I reject Edmonds' argument that equitable tolling applies in this case.
Edmonds stated that the payments he received after being sent home in November 1998 continued at the amount he was to receive as an active employee, but by April 1999, the rate of the payment decreased to the amount he had previously been receiving under long — term disability status. Dep. at 25-28.
Continuing Violation
Because it is undisputed that Edmonds realized by April 1999 that he had been returned to long — term disability status against his wishes, the actions based on alleged discrimination that occurred in November 1998 are barred by the statute of limitations unless this Court concludes that this case involves a continuing violation. Last year, the United State Supreme Court discussed the continuing violation theory, and restricted its use in cases involving discrete acts of discrimination. The Court stated:
First, discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180-or 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed.National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The Supreme Court gave examples of discrete acts, such as: " termination, failure to promote, denial of transfer, or refusal to hire . . ." Id. at 114-15.
The Supreme Court contrasted these claims with hostile work environment claims that are continuing by nature. Id. at 2075. A violation is continuing if it consists of "`an ongoing pattern or practice of discrimination,'" rather than an amalgamation of discrete, isolated instances. Rorie v. United Parcel Service, Inc. 151 F.3d 757, 761 (8th Cir. 1998), quoting Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1303 (8th Cir. 1997), cert. denied, 524 U.S. 953 (1998) (emphasis omitted).
Like a failure — to — promote case, Union Pacific's alleged failure to restore Edmonds to active employment allegedly based on his age or disability is a discrete act of discrimination. While the damages sustained by a plaintiff as a result of an adverse employment action may continue, such as when an employee has been unlawfully denied a promotion and attendant raise based on illegal discrimination, ongoing damages are not sufficient to convert an action based on discrete discriminatory acts into a continuing violation case.
Edmonds urges this Court to consider the Eighth Circuit Court's recent case Saulsberry v. St. Mary's University of Minnesota, 318 F.3d 862, 866 (8th Cir. 2003), and I have. Saulsberry is distinguishable from this case because the adverse employment action at issue here was not recurring. Because I find that there is no continuing violation, and because Edmonds filed his first charge on March 19, 2000, the Court concludes that any employment action that occurred more than 300 days before March 19, 2000, which is approximately May 23, 1999, is not actionable.
The plaintiff in Saulsberry argued that each semester that the university decided to remit his tuition at the 75 percent rate instead of the 100 percent rate was a discrete discriminatory act, but that this pattern constituted a continuing violation, such that all of the acts came within the statute of limitations because the last discrete act had occurred within 300 days of the claim. Although the Eighth Circuit did not decide the case on the limitations issue, the Court indicated that it was inclined to agree with Saulsberry's view of the timeliness issue — implying that the Eighth Circuit would approve the use of the continuing violation theory in some cases involving discrete acts of discrimination.
There is nothing in the March 19, 2000, charge that describes any unlawful action that occurred between May 23, 1999, and March 19, 2000. (Dep at Ex. 3). While Edmonds argues that the charge includes a "continuing violation" notation, the notation is not controlling. Accordingly, the Court concludes that all claims relative to Edmonds' initial attempt to return to work on November 16, 1998, and his inability to obtain reinstatement following his November 17, 1998, medical leave, are barred by the statute of limitations, and Union Pacific is entitled to summary judgment on those claims.
September 11, 2000, Charge of Discrimination
The statute of limitations analysis does not end there, however, because Edmonds filed a second Charge of Discrimination on September 11, 2000. The Union Pacific urges this Court to reject it as a copy — cat of the March 19, 2000, charge. However, because Edmonds' September 11, 2000, Charge of Discrimination includes additional information, it is not a duplicate charge that can be easily rejected. The September 11, 2000, charge includes information that on February 22, 2000, Edmonds had been released to return to work by his physicians, but that Union Pacific again failed to allow him to return to employment. (Dep. Ex. 5). Edmonds indicates in the September charge that he believed this action was taken on the basis of his age and disability in violation of the law.
The September charge describes a discrete act of discrimination, Union Pacific's failure to return Edmonds to work despite his being released to return to work by his physician on February 22, 2000. The Court concludes any alleged acts of discrimination that occurred with 300 days before September 11, 2000 — which the Court's estimates to be on or about November 14, 1999 — were preserved. Thus, Edmonds' charge that the Union Pacific violated age and disability discrimination laws by failing to return Edmonds to active employment following his release to return to work on February 22, 2000, was timely filed.
The Merits of the Claims
According to Edmonds, he repeatedly requested that he be allowed to return to work, but his requests were denied. (Dep. at 29-30.) On February 22, 2000, his doctor again released him to return to work with only a single restriction from lifting weights greater than 25 pounds., However, Union Pacific still did not allow Edmonds to return to work. On September 11, 2000, Edmonds filed a second charge of discrimination with the EEOC. On September 29, 2001, the EEOC issued a determination concluding that there was reasonable cause to support the charge. (S.Aff. at 108-09.) Shortly thereafter, Union Pacific agreed to return Edmonds to work, which it did on January 14, 2002, in Omaha. (Dep. at 59) He was discharged in February 2002.
When Edmonds returned to work in January 2002, he again participated in the dispatcher training program. At the end of the program, Edmonds' employment was terminated because he failed to pass the final computer proficiency test. (Dep. at 66, 68).
Age Discrimination Claims
Edmonds maintains that he was not reinstated to employment in February 2000 upon his release to return to work because of his age, and that he was discharged from the apprentice train dispatching program because of this age. The McDonnell Douglas burden — shifting analysis applies to age claims under the ADEA and the NDEA. To state a prima facie case, Edmonds must show membership in a protected age group; that he was qualified for the job and satisfied the legitimate expectations of the employer; that despite these qualification, he suffered an adverse employment action; and that he was replaced by a younger employee. Simonson v. Trinty Reg'l Heath Sys., 336 F.3d 706, 708-09 (8th Cir. 2003), and Alan v. ATT Tech, Inc., 423 N.W.2d 424, 431 (Neb. 1988) (employing ADEA elements in age discrimination claim under NDEA).
At all relevant times, Edmonds has been at least 60 years old, and he is a member of the protected class. Edmonds' claim is that he was not allowed to return to work despite providing what he believed was a sufficient medical release to return to work in February 2000. After being returned to work and placed in the apprentice training dispatcher program in January 2002, Edmonds was discharged in February 2002. Both the delay in reinstatement to active employment and the discharge constitute adverse employment action. While Edmonds can easily satisfy both the first and third requirements of the prima facie case, Union Pacific contends that he cannot satisfy the second element because he cannot demonstrate that he was qualified for the job.
Reinstatement
With regard to Edmonds' claim that Union Pacific delayed in reinstating him to active employment, Union Pacific has failed to demonstrate that Edmonds was not qualified for the apprentice dispatcher training position. The record demonstrates that Union Pacific had information from Edmonds' cardiologist about Edmonds' ability to return to work by February 22, 2000. (S.Aff. at 33). That information was supplemented by a May 16, 2000, "To Whom is May Concern" letter from Edmonds' family practitioner that released him to return to work on that date. (S. Aff. at 35) If Edmonds had been qualified to participate in the dispatcher training in January 2002, presumably, he was also qualified to participate on February 22, 2000, when he was released to return to work by his cardiologist, or at the latest by May 16, 2000, when he was released by his family practitioner. Yet, the Union Pacific has not provided the Court with a legitimate, nondiscriminatory reason for its decision not to return Edmonds to active employment before January 2002. Therefore, Union Pacific is not entitled to summary judgment on this claim. What damage, if any, Edmonds sustained as a result of not participating in an earlier dispatcher training, when the outcome likely would have been an earlier termination from the railroad, is a question reserved for trial.
Union Pacific also argues that Edmonds cannot demonstrate that he was replaced by a younger worker. However, where, as here, and as in reduction — in — force cases, a position intentionally is not filled upon another employee's discharge, the element is modified such that the plaintiff must show that age was a factor in the employment decision. (Miller Aff. at ¶ 14.) See Yates v. Rexton, Inc., 267 F.3d 793, 799 (8th Cir. 2001) (noting that replacement by a younger worker is ordinarily sufficient to establish a prima facie case, but when"when duties have to be redistributed within the employer's remaining workforce" the plaintiff "must come forward with some additional evidence that age played a role in his termination"), and Putman v. Unity Health System, ___ F.3d ___ 2003 WL 22517284, *3 (8th Cir. 2003) (referring to the "flexible prima facie case burden" in cases where there is no replacement.)
Discharge
To satisfy his burden on the second element of the discharge claim, Edmonds must offer evidence that he was qualified for the job, or, as otherwise stated, that he met the legitimate expectations of Union Pacific. See Taylor v. Southwestern Bell Telephone Co., 251 F.3d 735, 740 (8th Cir. 2001); Landon, 72 F.3d at 624 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The Court finds that he cannot sustain this burden. Union Pacific has provided evidence to demonstrate that Edmonds was not qualified for the position and did not meet its legitimate expectation. Edmonds did not successfully pass the apprentice train dispatcher class that was required of all train dispatchers. (Miller Aff.) Edmonds has offered no evidence of his objective qualifications to run the computer system. Indeed, Edmonds conceded that he had very little previous experience on any type of computer before the dispatcher training classes. (Dep. at 85). Thus, the Court finds that he has failed to satisfy the second element of his prima facie case, and the Union Pacific is entitled to summary judgment on this claim.
The Court acknowledges that Edmonds' failure to pass the test is also the purported legitimate, nondiscriminatory reason that the Union Pacific offers for its employment decision to discharge Edmonds, and under such circumstances, courts must be careful not to decide the issue prematurely. See Miners v. Cargill Communications, Inc., 113 F.3d 820 (8th Cir. 1997). However, having considered the entire Miller Affidavit, the Fortner Affidavit, and other evidence related to the final computer proficiency test, including Edmonds' own deposition and the testing records, I find there is no evidence to indicate the presence of unfair subjectivity or unlawful discriminatory animus.
I recognize that, considering the evidence in the light most favorable to Edmonds as the non — moving party, there is some evidence that may hint at bias. Edmonds stated that another trainee was assured that she would be given the assistance she needed to pass the computer test, (Dep. at 81-82), and Edmonds suspects, though he has presented no facts to demonstrate, that Miller was instructed to be unavailable to Edmonds for tutoring before and after classes. (Dep. at 69-70, 91.) Edmonds recalled remarks such as references to "the good old days" and to Edmonds being a "vintage" railroad worker. (Dep. at 87, 96.) Considering all of this evidence, I conclude that these comments and hunches, without more, are insufficient to block an otherwise properly presented motion for summary judgment. This evidence, even if proven, is not enough to demonstrate an animus based on age or disability.
For these reasons, the Court concludes that Union Pacific is entitled to summary judgment on Edmonds' claim that he was discharged on the basis of his age.
Disability Discrimination
To establish a prima facie case of disability discrimination, Edmonds must show (1) that he is disabled within the meaning of the ADA; (2) that he is qualified to perform the essential functions of his position; and (3) that he suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination." Alexander v. The Northland Inn, 321 F.3d 723, 727 (8th Cir. 2003).
As with the age claims, Edmonds claims both that he was denied timely reinstatement to active employment status because of his perceived disability, and that he was discharged because of his perceived disability. Union Pacific contends that Edmonds cannot show any element of the prima facie case.
The Union Pacific contends 1) Edmonds did not notify them that he was disabled, and 2) they did not consider him, in November 1998 or January 2002, to be disabled. Therefore, the railroad argues, Edmonds cannot establish that he was disabled within the meaning of the ADA. The ADA defines disability as including both a "physical or mental impairment that substantially limits one or more of the major life activities of [an] individual," and "being regarded as having such an impairment." 42 U.S.C. § 12102(2)(A)(C).
Both parties knew that Edmonds had been receiving long — term disability benefits. Edmonds' message to the railroad, starting in early 1998, appears to have been that he was no longer disabled and that he wished to return to work. However, an employer's awareness of a claimant's past medical problems does not establish that it regarded the employee as disabled. Simonson, 336 F.3d at 709. Accordingly, I find that there is a genuine issue of material fact as to whether Edmonds was disabled under the ADA, and specifically whether the Union Pacific regarded Edmonds as having an impairment that prevented his reinstatement to employment.
If the Court assumes for purposes of the motion that Edmonds was disabled under the ADA, then Union Pacific may still be entitled to summary judgment if it can demonstrate that he was not qualified to perform the essential functions of the job. Under this analysis, Union Pacific is entitled to summary judgment on part of the age discrimination claim.
Reinstatement
With respect to Edmond's reinstatement claim, I conclude that even if the Court assumes that Edmonds is disabled under the Act, Union Pacific has provided no evidence to demonstrate that he was not qualified to participate in the train dispatcher training in February 2000, after his release to return to work. Edmonds has demonstrated that the railroad believed in January 2002, that he was qualified to participate in the dispatcher training program, but that after February 2000, he was repeatedly denied his request to get back to work and off the long — term disability program. Union Pacific has not come forward with a legitimate, nondiscriminatory reason for the delay in allowing Edmonds to return to work after he was released by his physician in February 2000. On this record, there are genuine issues of material fact that remain for trial on this part of the disability discrimination claim.
Discharge
The Court concludes, however, that Union Pacific is entitled to summary judgment on Edmonds' claim that he was discharged because of his perceived disability because, even if the Court assumes that the railroad perceived Edmonds to be disabled under the Act, Edmonds cannot demonstrate that he is qualified to perform the essential functions of the train dispatcher job. For the same reasons that are stated in the age discrimination analysis, Edmonds cannot show that he was qualified to continue working as a train dispatcher because of his unsuccessful completion of the final computer proficiency testing. Because Edmonds cannot state a prima facie case that he was discriminated against on the basis of a disability, Union Pacific is entitled to summary judgment on the claim that Edmonds was discharged from his employment in violation of the ADA.
Retaliation under FEPA
In order to establish a prima facie case of retaliation under the FEPA, a plaintiff must show (1) that he engaged in statutorily protected activity; (2) an adverse employment action was taken against him; and (3) a causal connection between the two events. Luciano v. Montfort, Inc., 259 F.3d 906, 909 (8th Cir. 2001); and Rose v. Vickers Petroleum, 546 N.W.2d 827, 833 (Neb.App. 1996).
The Court agrees with Edmonds that his filing of the EEOC charges, in March 2000, and in September 2000, constitutes protected activity. After the filing of the charges, the only adverse employment action that he sustained was the delay in reinstating his employment following his release to return to work after February 22, 2000, and his termination as a train dispatcher in February 2002. Other than some connection in time, the Court finds no evidence of a causal connection between Edmonds' protected activity, filing the administrative charges, and the adverse employment actions that were taken against him. With regard to the Union Pacific's alleged delay in reinstating Edmonds' employment, a causal link is nearly impossible to see because the allegedly adverse employment action occurred before, and continued after, the charges were filed. With regard to Union Pacific's decision to terminate his employment, I can find no evidence to indicate that decision was linked in any way to Edmonds' protected activity. Accordingly, I conclude that the Union Pacific is entitled to summary judgment on the retaliation claim as a matter of law.
Conclusion
Union Pacific is entitled to summary judgment as a matter of law on the claims based on events occurring before the end of November 1999, because they are barred by the applicable statute of limitations. Union Pacific is also entitled to summary judgment on Edmonds' claims that he was unlawfully discharged from his employment because of his age or disability under the ADEA, the NDEA, the ADA and the NFEPA. In addition, Union Pacific is entitled to summary judgment on Edmonds' claim of retaliation under the NFEPA.
Because the Court finds genuine issues of material fact remain regarding Edmonds' claims that the Union Pacific violated the ADEA, the NDEA, and the ADA, by delaying his reinstatement to active employment following his medical release to return to work, the motion is denied as to these claims. The Court is aware that even if Edmonds meets his burden of proof with respect to the remaining causes of action, it will be difficult, if not impossible, for him to demonstrate that he incurred any monetary damage as a result of Union Pacific's actions, in light of the fact that he was ultimately found to be unqualified for the dispatcher position.
IT IS ORDERED:
1) Plaintiff's Motion for Summary Judgment (Filing No. 27) is granted as to the claims set forth in (a) through (c) below, and is denied in all other respects:
(a) All claims based on events occurring before the end of November 1999;
(b) All claims that Edmonds was unlawfully discharged from his employment in violation of the ADEA, NDEA, ADA and NFEPA; and
(c) All claims that Edmonds was discharged or suffered any other adverse employment action in retaliation for protected activities in violation of the NFEPA.
2) The remaining claims in this case are scheduled for trial before the undersigned commencing on Tuesday, November 18, 2003.