Opinion
3:22-cv-01011-JR
12-18-2023
MARK WALKER, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Plaintiff Mark Walker initiated this action against Union Pacific Railroad Company (“Union Pacific”) alleging claims for disability discrimination. Union Pacific now moves for summary judgment pursuant to Fed.R.Civ.P. 56. Additionally, plaintiff partially moves for summary judgment. For the reasons stated below, plaintiff's motion should be granted, and Union Pacific's motion should be granted in part and denied in part.
The Court generally cites to the moving party's evidence except when referring to the non-duplicative information produced by the non-moving party. Additionally, where exhibits are not individually or sequentially numbered, the Court refers to the page numbers assigned in the docket.
This case turns on whether Union Pacific violated plaintiff's rights under the Americans with Disabilities Act (“ADA”) by subjecting him to additional color acuity testing after he passed the primary scientific method, and then denied him recertification as a locomotive engineer on that basis.
I. Federal Railroad Administration Regulations
The Federal Railroad Administration (“FRA”) issues regulations establishing minimum safety standards for the “eligibility, training, testing, certification and monitoring of all locomotive engineers.” 49 C.F.R. § 240.1. The FRA itself does not evaluate locomotive engineers but rather requires each railroad to maintain a written program for certification. 49 C.F.R. § 240.101. The certification program for each railroad must include a procedure for evaluating vision that conforms with 49 C.F.R. § 240.121.
Similar regulations applicable to railroad conductors are contained in 49 C.F.R. § 242 et. seq. and referenced sporadically in the parties' motions.
As part of the certification process, the FRA sets minimum thresholds for visual acuity and states, in relevant part: “Except as provided in paragraph (e), each person shall have [the] ability to recognize and distinguish between the colors of railroad signals as demonstrated by successfully completing one of the tests in appendix F to this part.” 49 C.F.R. § 240.121(c). Subsection (e), in turn, states:
A person not meeting the thresholds in paragraphs (c) . . . of this section shall, upon request, be subject to further medical evaluation by a railroad's medical examiner to determine that person's ability to safely operate a locomotive. In accordance with the guidance prescribed in appendix F to this part, a person is entitled to one retest without making any showing and to another retest if the person provides evidence substantiating that circumstances have changed since the last test to the extent that
the person could now arguably operate a locomotive or train safely. The railroad shall provide its medical examiner with a copy of this part, including all appendices. If, after consultation with one of the railroad's designated supervisors of locomotive engineers, the medical examiner concludes that, despite not meeting the threshold(s) in paragraphs (c) . . . the person has the ability to safely operate a locomotive, the person may be certified as a locomotive engineer and such certification conditioned on any special restrictions the medical examiner determines in writing to be necessary.49 C.F.R. § 240.121(e). And Appendix F specifies:
In determining whether a person has the visual acuity that meets or exceeds the requirements of this part, the following testing protocols are deemed acceptable testing methods for determining whether a person has the ability to recognize and distinguish among the colors used as signals in the railroad industry. The acceptable test methods are shown in the left hand column and the criteria that should be employed to determine whether a person has failed the particular testing protocol are shown in the right hand column . . . [Listing 12 pseudoisochromatic plate /multifunction vision tests].
An examinee who fails to meet the criteria in the chart may be further evaluated as determined by the railroad's medical examiner. Ophthalmologic referral, field testing, or other practical color testing may be utilized depending on the experience of the examinee. The railroad's medical examiner will review all pertinent information and, under some circumstances, may restrict an examinee who does not meet the criteria from operating the train at night, during adverse weather conditions or under other circumstances. The intent of § 240.121(e) is not to provide an examinee with the right to make an infinite number of requests for further evaluation, but to provide an examinee with at least one opportunity to prove that a . . . vision test failure does not mean the examinee cannot safely operate a locomotive or train. Appropriate further medical evaluation could include providing another approved scientific screening test or a field test.49 C.F.R. § 240, App. F.
In sum, a person demonstrates the ability to recognize and distinguish between the colors of railroad signals for the purposes of obtaining certification by successfully completing one of twelve scientific tests the FRA deems acceptable. The failure of any one these of scientific methods does not automatically result in disqualification; rather, the person then has the opportunity to pursue other practical testing not specified by the FRA, which can also establish the ability to safely operate a locomotive.
After receiving training and initial certification compliant with these regulations, locomotive engineers must be recertified every three years. 49 C.F.R. § 240.201(c).
II. Union Pacific's Color Vision Testing Scheme
From the list of twelve scientific tests deemed acceptable by the FRA, Union Pacific chose the Ishihara 14-plate pseudoisochromatic plate test (“Ishihara”)as their primary color vision test. Barney Decl. Ex. 2 (doc. 23-3). Beginning in 1999, Union Pacific chose a Multi-Head color vision field test (“CVFT”) as their secondary test for persons who failed the Ishihara. Walsh Decl. Ex. B, at 34-35 (doc. 20); Barney Decl. Ex. 8 (doc. 23-9).
The Ishihara test “utilizes a series of plates which include a combination of colors with an image on them [that] the test subject [must] identify.” Def.'s Motion Summ. J. 2 n.1 (doc. 19); Barney Decl. Ex. 2 (doc. 23-3). More than one error on plates one through eleven results in a failing score. 49 C.F.R. § 240, App. F; Barney Decl. Ex. 2 (doc. 23-3).
The Multi-Head CVFT is as follows: “10 wayside signal configurations will be presented to the examinee in a preselected order. The examinee is asked to stand at ground level, about 440 yards away from the signal mast. No measurement of the distance is required. One of the 10 possible signal configurations is dark/unlit. Scoring is performed by a supervisor, who follows a written protocol to record the approximate length of time the examinee takes to identify the lighted colors and interpret the meaning of each displayed signal (scored as 1-2 seconds, 2-3 seconds, and more than 3 seconds). However, no actual measurement of time taken to perform this task is required. If any of the 10 signals is not displayed, the examiner must note the reason. No minimum number of signals is required by the (Union Pacific)'s protocol.” Walsh Decl. Ex. B, at 34-35 (doc. 20).
On June 24, 2012, two Union Pacific freight trains collided head-on near Goodwell, Oklahoma. Walsh Decl. Ex. B, at 8 (doc. 20). The engineer and conductor of the eastbound train, as well as the engineer of the westbound train, were killed in the accident. Id. The National Transportation Safety Board (“NTSB”) investigated the incident and found that one of three probable causes of the collision was the inability of the engineer of the eastbound train to see and correctly interpret a wayside signal. Id. at 12. The NTSB noted that the engineer of the eastbound train was recertified after he failed the Ishihara in 2009 but then passed the Multi-Head CVFT. Id. at 34-35.
The NTSB concluded the Multi-Head CVFT “fails to ensure that Union Pacific employees have adequate color perception to perform in safety-sensitive situations,” as it was of unknown origin and “the reliability and validity [of this] test have not been evaluated.” Id. at 35. As a result, the NTSB recommended Union Pacific “replace its color vision field test with a test that has established and acceptable levels of validity, reliability, and comparability to ensure that certified employees in safety-sensitive positions have sufficient color discrimination to perform safely.” Id.
In November 2015, the FRA published a set of interim interpretations “to clarify provisions in its locomotive engineer and conductor qualification and certification regulations related to further evaluation of persons who do not meet the vision threshold criteria in Title 49 Code of Federal Regulations (CFR) 240.121(c).” Walsh Decl. Ex. D, at 106 (doc. 20). To that end, “[a]lthough FRA's rules grant discretion to railroads in selecting a test protocol, FRA's longstanding interpretation of this provision is that the test offered by a railroad must be a valid, reliable, and comparable test for assessing whether a person who fails an initial vision test can safely perform as a locomotive engineer.” Id. at 108. “Validity means the degree to which a test actually measures what the test is intended to measure.” Id. at 109. “Reliability means the degree of reproducibility of the test results.” Id. “Comparability means the testing procedures are fairly administered and the test results are uniformly recorded.” Id.
Union Pacific thereafter began designing a new secondary CVFT - i.e., the Light Cannon test.Sometime in 2015, the FRA observed the Light Cannon CVFT, although there is nothing in writing to commemorate this event. Def.'s Mot. Summ. J. 11 (doc. 19); Walsh Decl. Ex. H, at 9798 (doc. 24).
“To administer the test, a Light Cannon (i.e., a device akin to a stoplight) was placed a quarter mile away from the examinee. The test operator would switch on various signals for three seconds before turning it off, and a nurse next to the examinee would record the examinee's answer.” Def.'s Mot. Summ. J. 9 (doc. 19) (citation omitted). Each administration consists of “20 presentations of individual colored railroad wayside signal lights that are presented in random order . . . the failure to correctly identify the color of any individual signal light [constitutes] a failure of the test.” Barney Decl. Ex. 14, at 1 (doc. 26-15).
The Light Cannon CVFT was ultimately implemented on April 1, 2016. Def.'s Mot. Summ. J. 10 (doc. 19); Barney Decl. Ex. 9, at 32 (doc. 23-10). According to Dr. Holland, Union Pacific's Chief Medical Officer, the railroad “tried to follow the best practices as outlined in the Federal Register” in designing the Light Cannot CVFT. Walsh Decl. Ex. E, at 96 (doc. 24). However, Dr. Holland acknowledged that Union Pacific did not submit the Light Cannot CVFT to independent experts for “the purpose of proper scientific and operational validation studies,” but maintained that “type of [scientific validation] wasn't part of the criteria required by the FRA.” Id. at 144.
When validation testing was completed on the Light Cannon CVFT in 2020 by Dr. Rabin, Union Pacific's Research Optometry Consultant, it was determined that 26.5% of individuals with normal color vision failed, and testing protocols were revised as a result. Barney Decl. Ex. 9, at 26-27, 30 (doc. 23-10); Barney Decl. Ex. 16 (doc. 23-17); see also Barney Decl. Ex. 19, at 92 (doc. 23-17) (Dr. Lewis, Union Pacific's Associate Medical Director, testifying that “the majority fail” the Light Cannon CVFT).
III. Plaintiff's Employment with Union Pacific
Union Pacific hired plaintiff in January 2004. Plaintiff underwent a preplacement physical examination in December 2003. See generally Barney Decl. Ex. 20 (doc. 23-21). As part of that testing, plaintiff passed the Ishihara. Id. at 23.
In 2005, plaintiff began working as a locomotive engineer; he passed the Ishihara as part of his initial certification and again in 2007 while being recertified. Barney Decl. Ex. 21 (doc. 2322); Barney Decl. Ex. 22 (doc. 23-23).
In both 2010 and 2013, plaintiff failed the Ishihara (correctly identifying just twelve of fourteen plates each time) but was recertified after passing the Multi-Head CVFT. Barney Decl. Ex. 23 (doc. 23-24); Barney Decl. Ex. 24 (doc. 23-25); Barney Decl. Ex. 26 (doc. 23-27).
Plaintiff asserts his 2013 Ishihara “appears to have been incorrectly scored and should have been considered a ‘pass'” based on Union Pacific's internal criteria. Pl.'s Mot. Partial Summ. J. 14 (doc. 23).
In June 2016, plaintiff passed the Ishihara, correctly identifying all fourteen plates, and was recertified by Union Pacific. Barney Decl. Ex. 27 (doc. 23-28).
In June 2019, plaintiff again passed the Ishihara, correctly identifying all fourteen plates. Barney Decl. Ex. 3 (doc. 23-4). Dr. Lewis reviewed the results of the examination and communicated internally that plaintiff “meets the FRA hearing and vision requirements [and] is approved for FRA certification.” Barney Decl. Ex. 28, at 5 (doc. 23-29). However, Dr. Holland and Deb Gengler, Union Pacific's Director of Clinical Services, recommended that, due to his failure on the Ishihara in 2013, plaintiff be pulled from safety sensitive work and undergo the Light Cannon CVFT. Id. at 4-5. At the time, plaintiff expressed anger “because it wasn't fair to pull him out for something that happened 6 years ago.” Id.
On July 8, 2019, plaintiff failed the Light Cannon CVFT by correctly identifying eighteen of twenty color signals. Barney Decl. Ex. 29 (doc. 23-30). Thereafter, Dr. Holland assessed permanent work restrictions that could not be accommodated in plaintiff's current role, remarking the Light Cannon CVFT results provided “adequate documentation that [plaintiff] cannot identify colored train signals reliably and accurately, so he does not meet the FRA minimum standards for FRA certification or work as an Engineer, Conductor or trainman.” Barney Decl. Ex. 30 (doc. 2331).
Plaintiff appealed his Light Cannon CVFT results and permanent work restrictions, and eventually negotiated a retesting option. Barney Decl. Ex. 28, at 2-3 (doc. 23-29); Walsh Decl. Ex.
K, at 74 (doc. 24). However, that retesting was scheduled in Roseville, California, so plaintiff declined because he was “very close to 60 years old and [had] been preparing for this even though its earlier than [he] thought it should be.” Barney Decl. Ex. 28, at 2-3 (doc. 23-29); Walsh Decl. Ex. K, at 74 (doc. 24). On August 22, 2019, Union Pacific notified plaintiff, via certified mail, that he could no longer work as an engineer. Barney Decl. Ex. 31 (doc. 23-32).
At that time, Kimberlee Foye, Union Pacific's Vocational Case Manager, sent plaintiff a letter “offer[ing] [her] vocational services . . . and let him know what options were available to him to find employment inside or outside of the company if he chose to do so.” Foye Decl. ¶¶ 2, 4 (doc. 27-1). Plaintiff “never responded” to Ms. Foye's letter. Id. at ¶ 5.
IV. Proceedings Before This Court
On July 12, 2022, plaintiff initiated this action alleging claims for disparate treatment, disparate impact, and failure to accommodate. On July 21, 2023, the parties filed the present summary judgment motions.
Although plaintiff alleges three distinct claims, neither party separately briefs those claims and both parties seemingly conflate aspects of the disparate treatment and impact claims, while largely ignoring the failure to accommodate claim. The Court's analysis is therefore limited to those issues that are both dispositive and sufficiently briefed. Cf. Juliana v. United States, 339 F.Supp.3d 1062, 1075 (D. Or. 2018), rev'd on other grounds by 947 F.3d 1159 (9th Cir. 2020) (“even if the standards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it believes that the better course would be to proceed to a full trial”) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson, 477 U.S. at 248.
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 631.
DISCUSSION
Plaintiff seeks summary judgment as to: (1) the applicability of Union Pacific's federal regulation affirmative defense; and (2) whether he is a qualified individual with a perceived disability for the purposes of establishing a prima facie case. Plaintiff argues, he was, and remains, qualified for the position of locomotive engineer based on the results of the 2019 Ishihara. Plaintiff contends Union Pacific regarded him as disabled - specifically, having a color vision deficiency -removing him from service and then issuing permanent work restrictions on the basis of this perceived disability. Additionally, plaintiff maintains that, because he “met the threshold color vision qualification standards” imposed by the FRA for recertification, Union Pacific was impermissibly “acting entirely on its own” by “subjecting [him] to additional testing,” such that “the federal regulation defense articulated in Albertson's Inc. v. Kirkinburg t 527 U.S. 555 (1999), cannot apply.” Pl.'s Mot. Partial Summ. J. 18 (doc. 23).
Conversely, Union Pacific argues dismissal is warranted in regard to each of plaintiff's claims because: (1) the prima facie case requirements are unmet since plaintiff “cannot show he was qualified for his position” - i.e., namely, he “could not meet the standards set forth in 49 C.F.R. § 240.121, App. F” because he “failed the Ishihara twice and then failed the CVFT” - and his “regarded as” theory of disability is insufficient to sustain a claim for disparate impact; (2) its actions “were necessitated by FRA regulations” such that “an absolute defense [exists under] Albertson's, Inc. v. Kirkinburg, 527 U.S. 555 (1999)”; and (3) it “can satisfy its burdens for the business necessity and direct threat affirmative defenses.” Def.'s Mot. Summ. J. 13, 15, 17, 21 (doc. 19). Alternatively, Union Pacific contends that, assuming a prima facie case exists, summary judgment is appropriate because legitimate, non-discriminatory reasons existed for the decision to terminate plaintiff - namely, the “FRA safety regulations” - and there is no evidence of pretext. Id. at 28-34.
Accordingly, the parties cross-move for summary judgment as to whether plaintiff is a qualified individual with a disability under the ADA and the applicability of Union Pacific's Albertson's defense. Union Pacific separately seeks summary judgment on its affirmative defenses and the subsequent steps of the burden-shifting framework set forth in McDonnell Douglas Corp.v. Green, 411 U.S. 792 (1973).
I. Preliminary Issues
Union Pacific's adage that its actions were required by or, at a minimum consistent with, binding FRA regulations repeats throughout its various arguments, and forms the basis of both its motion and opposition. The parties also dispute the relevance of McDonnell Douglas, as plaintiff maintains the burden-shifting framework “does not apply in this case” because “direct evidence of discriminatory motive” exists in the form of “Union Pacific's [facially discriminatory] fitness-for-duty protocol.” Pl.'s Resp. to Mot. Summ. J. 2, 28-29 (doc. 26). Thus, as an initial matter, the Court must interpret the relevant FRA regulations, as well as determine the proper legal framework.
A. Interpretation of Relevant Federal Railroad Administration Regulations
“As a general interpretative principle, ‘the plain meaning of a regulation governs.'” SafeAir for Everyone v. U.S. Env't Prot. Agency, 488 F.3d 1088, 1097 (9th Cir. 2007) (quoting WardsCove Packing Corp. v. Nat'l Marine Fisheries Serv., 307 F.3d 1214, 1219 (9th Cir. 2002)). “Other interpretative materials, such as the agency's own interpretation of the regulation, should not be considered when the regulation has a plain meaning.” Id. “The plain language of a regulation, however, will not control if clearly expressed administrative intent is to the contrary or if such plain meaning would lead to absurd results.” Id. (internal brackets and quotations omitted).
The Court finds that 49 C.F.R. § 240.121 is unambiguous. That is, the plain language clearly specifies that a person demonstrates the ability to “recognize and distinguish between the colors of railroad signals” for the purposes of obtaining certification (or recertification) by successfully completing the Ishihara. 49 C.F.R. § 240.121(c); 49 C.F.R. § 240, App. F.
Only if a person fails to successfully complete the Ishihara or other scientific method enumerated in Appendix F is secondary testing implicated. 49 C.F.R. § 240.121(e). To that end, the right inheres with the employee and not the railroad. See 49 C.F.R. § 240, App. F (“[t]he intent of § 240.121(e) is . . . to provide an examinee with at least one opportunity to prove that a . . . vision test failure does not mean the examinee cannot safely operate a locomotive or train”); see also Walsh Decl. Ex. B, at 34-35 (doc. 20) (the NTSB explaining: “Federal regulations at 49 C.F.R. § 240.121(e) permit locomotive engineers to retake vision tests when they fail to meet the standards for certification”); Walsh Decl. Ex. D, at 107 (doc. 20) (FRA affirming, via its interim interpretations, its “longstanding view is that there are some people who, despite not meeting the vision threshold in 49 CFR 240.121(c) . . . have sufficient residual visual capacity to safely perform as a locomotive engineer”). In other words, the purpose of the secondary field testing is to allow the employee a second chance to demonstrate their ability to safely operate a locomotive, rather than to subject the employee to a railroad's discretionary vision standards once the certification standards for color acuity have been met.
In sum, for purposes of recertification, further color vision acuity testing is not contemplated by the FRA regulations after a person successfully completes the Ishihara. Indeed, Union Pacific tacitly recognizes as much, such that its argument regarding the “binding FRA regulations” actually appears to be based on a synthesis of other resources. See Def.'s Mot. Summ. J. 4 (doc. 19) (“[i]f the engineer [passes the Ishihara], no further color vision testing is necessary” under the FRA); see also Barney Decl. Ex. 4, at 14 (doc. 23-5) (Union Pacific's internal “FRA Certifications Training Module” specifying that, “[i]f 10 or more plates are read normally [on the Ishihara test, the employee's] color vision is regarded as normal [based on the] FRA Standard”). While these other resources are discussed in greater detail below, they neither alter the plain language of the FRA regulations nor warrant a different outcome.
The Court notes that 49 C.F.R. § 240.1(b) “does not restrict a railroad from adopting and enforcing additional or more stringent requirements not inconsistent with” the “minimum Federal safety standards for the eligibility, training, testing, certification and monitoring of all locomotive engineers.” Union Pacific does not rely on this subsection in either opposing plaintiff's motion or arguing that summary judgment in its favor is appropriate. Cf. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (“[i]t is not our task, or that of the district court, to scour the record in search of a genuine issue of triable fact . . . if the nonmoving party fails to discharge [its] burden - for example, by remaining silent - its opportunity is waived and its case wagered”) (citations and internal quotations omitted). Regardless, Union Pacific cannot plausibly maintain it was required by regulation to use its own standards in determining whether plaintiff was FRA certifiable.
B. Applicable Legal Framework
“[A] plaintiff can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas.” Young v. United Parcel Serv., 575 U.S. 206, 213, 228 (2015); see also Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008) (although the McDonnell Douglas burden-shifting framework typically applies, a “plaintiff may alternatively proceed by simply producing direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the employer”) (citation and internal quotations omitted).
“Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption,” and “typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005) (citations and internal quotations and brackets omitted). “Direct evidence is rare, and usually arises only when the employer admits to having a discriminatory motive.” Rogers v. Or. Trail Elec. Consumers Co-op., Inc., 2012 WL 1635127, *12 (D. Or. May 8, 2012) (citation omitted). In the present context, this means the plaintiff must establish that the “case involves a facially discriminatory qualification standard [in order to avoid the] burdenshifting protocol.” Bates v. United Parcel Serv., 511 F.3d 974, 982 (9th Cir. 2007).
As an initial matter, Union Pacific's full fitness-for-duty policy or protocol is not contained in the record before the Court and plaintiff does not, in fact, appear to be relying on that policy. Rather, plaintiff cites to Dr. Holland's July 11, 2019, case review stating: “according to the UPRR protocol, he was required to undergo an updated Color Vision Field Test” because he failed the Ishihara in 2013 and was subjected to the Multi-Head CVFT. Pl.'s Resp. to Mot. Summ. J. 29 (doc.26) (citing Barney Decl. Ex. 30 (doc. 23-31)). As such, there is no direct evidence that Union Pacific had a policy of subjecting any employee who had previously failed the primary scientific method to the Light Cannon CVFT.
And while, as addressed in Section I(A), Union Pacific may have misinterpreted and/or misapplied 49 C.F.R. § 240.121 in denying plaintiff recertification as an engineer, the record makes clear that Union Pacific's actions were centered on “comply[ing] with FRA safety regulations” in the wake of the 2012 Goodwell accident. See, e.g., Def.'s Mot. Summ. J. 28, 30 (doc. 19). Indeed, plaintiff does not argue that the FRA regulations are discriminatory, nor does he proffer any alternate motivation for Union Pacific's actions beyond broadly concluding that it harbored a discriminatory animus. Cf. Brunskill v. Kansas City S. Ry. Co., 2008 WL 413281, *3 (W.D. Mo. Feb. 12, 2008), aff'd, 331 Fed.Appx. 426 (8th Cir. 2009) (FRA's “rules are important for the safety of railroad workers and the railroad generally”).
The Court therefore concludes that the McDonnell Douglas framework governs this case. See Campbell v. Union Pac. R.R. Co., 2020 WL 5300734, *3-10 (D. Idaho Sept. 4, 2020) (applying McDonnell Douglas to ADA claims challenging a Union Pacific fitness-for-duty review related to the plaintiff's amputation and prosthesis that resulted in the imposition of work restrictions which effectively prevented railroad employment); see also Smith v. Noah Webster Basic Sch., 389 Fed.Appx. 698, 699 (9th Cir. 2010) (affirming the district court's application of the McDonnell Douglas framework to an ADA claim where the plaintiff was “offered the position” despite her visual impairments and the defendant had “not admitted taking account of disability status, which the Bates court said was required to dispense with the McDonnell Douglas framework”).
II. Cross-Motions for Summary Judgment
To establish a prima facie case of disability discrimination under the ADA, the plaintiff “must show that he: (1) is disabled; (2) is qualified; and (3) suffered an adverse employment action because of (his) disability.” Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001). “The requisite degree of proof to establish a prima facie case on summary judgment is minimal and does not even rise to the level of a preponderance of the evidence.” Schechner v. KPIX-TV, 686 F.3d 1018, 1022 (9th Cir. 2012) (citation and internal quotations and ellipses omitted).
A. Qualified Individual With a Disability
Union Pacific argues that plaintiff “cannot show that he [meets the prerequisites for employment and, by extension, that he] is a ‘qualified' individual as a matter of law” because he “failed the Ishihara twice [in 2010 and 2013] and Light Cannon test once [in 2019].” Def.'s Mot. Summ. J. 14-15 (doc. 19); Def.'s Resp. to Mot. Partial Summ. J. 14 (doc. 27). According to Union Pacific, the “temporal difference between the failed Ishihara tests and the Light Cannon test is unavailing [pursuant to] In re Travitz,” a 2018 decision emanating from the Operating Crew Review Board surrounding a conductor's color visual acuity. Def.'s Mot. Summ. J. 15 (doc. 19). Relatedly, Union Pacific asserts it “was prohibited from allowing [plaintiff] a reasonable accommodation for his position because the FRA explicitly barred Union Pacific from re- certifying him after he could not meet the FRA's vision testing criteria.” Id. at 16-17; Def.'s Resp. to Mot. Partial Summ. J. 14-15 (doc. 27).
Union Pacific does not actually attach the Travitz decision as an exhibit or addendum to its motion. Likewise, Union Pacific does not provide a job description specific to engineers, although it does furnish one for “Trainman (Brakeman, Switchman, Conductor, Hostler, Remote Control Operator).” Walsh Decl. Ex. A (doc. 20). Union Pacific's briefing also makes a number of misstatements of fact and mis-citations to the regulations and record. See, e.g., Def.'s Mot. Summ. J. 28 (doc. 19) (“on every occasion that Plaintiff took the Ishihara test, he failed it”); Def.'s Resp. to Mot. Partial Summ. J. 4 (doc. 27) (“[i]n 2017 Union Pacific implemented [the Light Cannon] test” which plaintiff first took during his next recertification cycle in 2019). Indeed, in many respects it seems as though Union Pacific simply recycled its briefing and exhibits from other suits.
Plaintiff, in turn, highlights the distinction between essential functions and qualification standards, and asserts “there is no question that [he] was able to perform the essential functions of his job” based on his past medical exams and the fact that he “worked nearly 16 years as an engineer without incident.” Pl.'s Mot. Partial Summ. J. 13 (doc. 23). Regardless, plaintiff contends he meets Union Pacific's qualification standards: the FRA's “threshold for determining sufficient color vision is demonstrated by successfully completing one of the tests in appendix F [such that] when [he] passed the Ishihara test on May 1, 2019, he demonstrated both his ability to discriminate railroad signal colors and his FRA recertification eligibility.” Id. (internal quotations omitted).
Plaintiff also discusses at length how he was regarded as an individual with a disability based on the undisputed facts. See, e.g., Pl.'s Mot. Partial Summ. J. 15-17 (doc. 23). In particular, plaintiff argues that where, as here, “an employer bases a prohibited employment action on actual or perceived impairment that is not transitory and minor, the employer regards the individual as disabled.” Id. (citation and internal quotations and brackets omitted); see also Nunies v. HIE Holdings, Inc., 908 F.3d 428, 434 (9th Cir. 2018) (“[a]n individual meets the requirement of ‘being regarded as having such an impairment' [under the 2008 amendments to the ADA, which broadened the definition of ‘disability'] if the individual establishes that he or she has been subjected to an action prohibited under this chapter 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”) (emphasis in original); Equal Emp. Opportunity Comm'n v. BNSF Ry. Co., 902 F.3d 916, 919-24 (9th Cir. 2018) (railroad employer regarded the plaintiff as disabled where it requested additional testing based on its knowledge of the plaintiff's prior health condition, even though the railroad's ordered medical exam “revealed no issues”). Union Pacific's sole opposition is that plaintiff “denie[d] he is disabled” during his deposition and a “regarded as” theory of disability “runs contrary to the statute's purpose in the disparate impact context.” Def.'s Mot. Summ. J. 31 (doc. 19); Def.'s Resp. to Mot. Partial Summ. J. 15 (doc. 27); see also Justice v. Rockwell Collins. Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted). The Court therefore declines to deny plaintiff's motion on this basis, especially because whether plaintiff is, in fact, disabled is immaterial to the Court's ADA inquiry. Cf. Brasier v. Union Pac. R.R. Co., 2023 WL 2754007, *10, 15 (D. Ariz. Mar. 31, 2023) (the plaintiff may allege a “regarded-as-disabled” claim under either a disparate treatment or disparate impact theory and “it makes little sense that employers may regard employees as disabled and discriminate against them based on that perception but avoid ADA liability because their perception turned out to be incorrect”).
Under the ADA an individual is “qualified” if, “with or without reasonable accommodation, [the individual] can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The Ninth Circuit follows a two-step inquiry to determine whether an individual is qualified for a position. Bates, 511 F.3d at 990. First, the court “examines whether the individual satisfies the requisite skill, experience, education and other job-related requirements of the position.” Id. (citation and internal quotations omitted). Second, the court “considers whether the individual can perform the essential functions of such position with or without a reasonable accommodation.” Id. (citation and internal quotations omitted).
Significantly,
“[e]ssential functions” are not to be confused with ”qualification standards,“ which an employer may establish for a certain position. Whereas “essential functions” are basic “duties,” “qualification standards” are “personal and professional attributes” that may include “physical, medical [and] safety” requirements. The difference is crucial.
The statute does not require that a person meet each of an employer's established “qualification standards,” however, to show that he is “qualified.” And, indeed, it would make little sense to require an ADA plaintiff to show that he meets a qualification standard that he undisputedly cannot meet because of his disability and that forms the very basis of his discrimination challenge.Id.
The Court notes that whether an individual is qualified in this context converges with a business necessity affirmative defense, the main distinction being which party bears the burden of proof. SeeBates, 511 F.3d at 993 (“[t]he employee does not bear the burden to invalidate the employer's safety-based qualification standard”). Given the procedural posture of this case, the Court addresses these issues separately but nonetheless notes that they are two sides of the same coin.
The fact that Union Pacific hired plaintiff for the engineer position suffices to establish the first step. See, e.g., Campbell, 2020 WL 5300734 at *4; see also Equal Emp. Opportunity Comm'n, 902 F.3d at 927 (railroad employer “could not credibly” argue that the plaintiff “was not an otherwise qualified individual” where it made “a conditional offer of employment” and “he was cleared by all three doctors who physically examined him”).
Concerning the second step, it is undisputed plaintiff met all requirements to be recertified by Union Pacific in 2016 (even after the new Light Cannon CVFT had been implemented) based on his passage of the Ishihara and that he continued to work as an engineer without incident.Following plaintiff's recertification evaluation in June 2019, Dr. Lewis “approved [him] for FRA certification,” again based on his passage of the Ishihara. Barney Decl. Ex. 28 (doc. 23-29). Critically, Union Pacific does not claim that plaintiff could not perform the essential functions of locomotive engineering work at any time prior to June 2019, when Dr. Holland and Ms. Gengler removed him from service and recommended he complete the Light Cannon CVFT “according to the UPRR protocol” due to his failure on the 2013 Ishihara Barney Decl. Ex. 30 (doc. 23-31).
While Union Pacific does not rely on (or even mention) this fact in its motion, it does broadly mention plaintiff being “disciplined in 2016 for failing to stop at a red signal” in the background section of other briefs. Compare generally Def.'s Mot. Summ. J. (doc. 19), with Def.'s Resp. to Mot. Partial Summ. J. (doc. 27). As such, Union Pacific does not contend there was an open question surrounding plaintiff's ability to recognize and distinguish between the colors of railroad signals (or general fitness for duty) outside of the 2019 Light Cannon CVFT. And the sole evidence Union Pacific introduces surrounding this event - i.e., plaintiff's deposition testimony - reflects that the mistake “wasn't anything about the color of the signal . . . [rather] the signing was new,” such that plaintiff “was looking at the wrong signal.” Walsh Decl. Ex. B, 84-85 (doc. 24-7).
Given this uncontravened evidence, plaintiff demonstrated he could “discriminate colors in signal displays” via the 2019 Ishihara as required by FRA regulation and thus could perform the essential functions of the engineering position. Stated different, plaintiff met Union Pacific's prerequisites, and the successful completion of the Light Cannon CVFT was a qualification standard not required by federal regulation. As a result, no accommodation was necessary to meet Union Pacific's baseline requirements for engineers.
In light of this, in conjunction with the fact that plaintiff is proceeding pursuant to a “regarded as” theory and has not put forth any evidence surrounding his circumstances requiring accommodation or the existence of a reasonable alternative, summary judgment in favor of defendant is appropriate as to his reasonable accommodation claim. See Kaplan v. N. Las Vegas, 323 F.3d 1226, 1232-33 (9th Cir. 2003); 42 U.S.C. § 12201(h) (no duty to accommodate an employee in an “as regarded” case); see also Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1046-47 (9th Cir. 1999) (“when the plaintiff alleges a failure to accommodate, part of the plaintiff's initial burden includes showing the existence of a reasonable accommodation”); Celotex, 477 U.S. at 322 (summary judgment should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden on proof at trial”).
Union Pacific's vague references, without citation, to “the FRA's requirement that [it] only certify engineers that took a field test different than the one that exi[s]ted prior to the Light Cannon” does not change the Court's conclusion. Def.'s Reply to Mot. Summ. J. 2 (doc. 28). In fact, the NTSB report cited by Union Pacific does not even support this proposition. Def.'s Resp. to Mot. Partial Summ. J. 11 (doc. 27); see also Walsh Decl. Ex. B, at 48 (doc. 20) (NTSB recommending, in the wake of the Goodwell accident, that, “[o]nce your replacement color vision test is implemented, retest all certified employees in safety-sensitive positions who failed the primary vision color testing on their last medical certification exam using the new procedure”) (emphasis added).
As denoted herein, there is no dispute that Union Pacific implemented the Light Cannon CVFT in April 2016 - i.e., before plaintiff's June 2016 recertification - yet Union Pacific elected not to administer its replacement color vision test to plaintiff at that time. When Union Pacific did finally subject plaintiff to the Light Cannon CVFT in 2019, he had passed his last two Ishihara tests. While not dispositive, the Court notes that 49 C.F.R. § 240.217, which governs time limitations for making certification designations, dictates a railroad shall not rely on visual acuity “examination[s] conducted more than 450 days before the date of the railroad's recertification decision.” Accordingly, the Court is not persuaded that, pursuant to either the FRA regulations or NTSB recommendations, “failing the Ishihara test and the field test constitutes grounds for decertification as an engineer,” irrespective of any remoteness of time between those events. Def.'s Reply to Mot. Summ. J. 1 (doc. 28).
Finally, Union Pacific's reliance on Travitz is misplaced. In Travitz, a Union Pacific conductor failed the Ishihara in 2014 “but subsequently passed the color vision field test.” Walsh Decl. Ex. K, at 2 (doc. 27-4). In 2017, during his next “periodical physical examination,” the conductor passed the Ishihara; however, Union Pacific's Chief Medical Officer determined the conductor “was still likely to have a color deficiency” based on his “history of having failed color vision tests” Id. at 2-3. The conductor was therefore referred for a “Fitness for Duty evaluation.” Id. at 3. “[A]s part of [that] evaluation,” the conductor failed the Light Cannon CVFT. Id.
The Operating Crew Review Board denied the conductor's petition for recertification, specifically citing the Chief Medical Officer's opinion that the conductor was “likely to have a color deficiency despite passing the color vision Ishihara test.” Id. at 4. In so finding, the Operating Crew Review Board relied on 49 C.F.R. § 242.117 - i.e., the FRA regulation governing visual acuity for conductors - which, unlike 49 C.F.R. § 240.121, requires the railroad's medical examiner to determine that the employee has sufficient visual acuity to perform their position. Id.at 3.
As such, Travitz is distinguishable in at least three material respects - namely, the timeline of events, the applicable FRA regulations, and the presence of independent concerns surrounding the employee's visual acuity. Moreover, the findings of the Operating Crew Review Board are “not precedential.” 49 C.F.R. §§ 240.409(u)(5), 242.509(u)(5). Travitz neither undermines plaintiff's prima facie case, nor shields Union Pacific's actions given the record before the Court.
For this reason, Union Pacific's reliance on other Operating Crew Review Board decisions to establish the validity of its Light Cannon CVFT are unavailing, especially since these decisions do not address the issue with any meaningful analysis and plainly did not consider the record (including the expert opinions) currently before the Court. See, e.g., Walsh Decl. Exs. L-M (doc. 27-4).
B. Albertson's Defense
Union Pacific asserts that it “meets the Albertson's defense because it acted under the direction of binding FRA regulations.” Def.'s Mot. Summ. J. 17 (doc. 19). Specifically, Union Pacific observes that, “[a]pplying Albertson's, federal courts have unanimously affirmed the dismissal of employees' claims where a federal regulation required the employer to take an adverse action.” Id. at 19 (collecting cases).
Plaintiff, in contrast, maintains that “Union Pacific's actions were not necessitated by Federal Law or Regulation.” Pl.'s Resp. to Mot. Summ. J. 22 (doc. 26). That is, “[u]nlike the defendants in Albertsons and its progeny, when Union Pacific referred [plaintiff] for additional evaluation with the Light Cannon, it was no longer bound by federal regulation.” Pl.'s Mot. Partial Summ. J. 19 (doc. 23).
As addressed herein, the FRA regulations relevant to this case did not require (or, arguably, even permit) secondary field testing as a condition of employment after the passage of the primary scientific method, especially in the absence of other behaviors that might lead Union Pacific's Medical Officers to question an engineer's fitness for duty. Nor did the NBST's recommendations or FRA's interim interpretations call for implementation of the Light Cannon CFVT given the timeline of events. Simply put, nothing in the record before the Court suggests that Union Pacific's actions were taken pursuant to binding regulation (or NBST or FRA recommendations). Plaintiff's motion is granted, and Union Pacific's motion is denied, as to these issues.
III. Union Pacific's Motion for Summary Judgment
Even where the plaintiff satisfies his prima facie case, summary judgment may still be appropriate if the defendant can either meet its burden of proof in regard to an affirmative defense or establish a legitimate, non-discriminatory reason for its adverse employment action.
A. Direct Threat Affirmative Defense
Union Pacific argues plaintiff categorically “posed a ‘direct threat'” causing it to “evaluate Plaintiff's color vision acuity in accordance with 49 C.F.R. § 240.121(h)(3) by administering the Ishihara test and its Light Cannon test” and “[f]ederal regulations do not require any[thing] further.” Def.'s Mot. Summ. J. 26 (doc. 19).
The ADA allows an affirmative defense for disability discrimination. 42 U.S.C. § 12111(3). To prevail on this defense, the employer bears the burden of proving that the employee posed “a direct threat to the health or safety of other individuals in the workplace.” Nunes v. WalMart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (quoting 42 U.S.C. § 12113(b)). “Direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Id. (citation and internal quotations omitted).
“To protect disabled individuals from discrimination based on prejudice, stereotypes, or unfounded fear, the Supreme Court has required an individualized direct threat inquiry that relies on the best current medical or other objective evidence.” Id. at 1248. “[F]actors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.” Id.(citations omitted).
In this case, Union Pacific has not introduced any medical or other objective evidence that plaintiff posed a threat, let alone “a significant risk of substantial harm to the health or safety of the individual or others.” Nunes, 164 F.3d at 1247 (9th Cir. 1999) (citation and internal quotation omitted); see also Echazabal v. Chevron USA, Inc., 336 F.3d. 1023, 1028 (9th Cir. 2003) (“[a] subjective belief in the existence of a risk, even one made in good faith, will not shield the decisionmaker from liability”). In fact, the record contains no expert or other evidence regarding plaintiff's test results or purported vision deficiency at the time he was decertified. And, as addressed herein, plaintiff's passage of the Ishihara in 2019 was sufficient to establish that he possessed the “ability to recognize and distinguish between the colors of railroad signals” for the purposes of FRA certification. 49 C.F.R. § 240.121(c).
The Court understands that plaintiff went on to fail the Light Cannon CVFT following the 2019 Ishihara. Although the parties dispute the validity of that field test (which is discussed in greater detail below), Union Pacific, at a minimum, failed to carry its burden of proof. In other words, disputed issues of material fact exist surrounding whether plaintiff posed any risk of harm to others given there were no generalized concerns surrounding his fitness for duty and he passed the 2016 and 2019 Ishihara tests (despite failing the 2019 Light Cannon CVFT). Union Pacific's motion is denied in this regard.
B. Business Necessity Affirmative Defense
Union Pacific next argues that the business necessity affirmative defense applies because: (1) its “color vision screening protocol . . . is mandated by the FRA”; (2) “this protocol substantially promotes Union Pacific's business needs: namely, safety”; and (3) “the Ninth Circuit has held that the ADA does not require an employer to provide a reasonable accommodation to an individual who meets the definition of ‘disability' under only the ‘regarded as' prong.” Def.'s Mot. Summ. J. 33-34 (doc. 19).
The ADA also provides a business necessity affirmative defense. 42 U.S.C. §12113(a). Where, as here, “an employer asserts a blanket safety-based qualification standard - beyond the essential job function - that is not mandated by law and that qualification standard screens out or tends to screen out an individual with a disability, the employer - not the employee - bears the burden of showing that the higher qualification standard is job related and consistent with business necessity, and that performance cannot be achieved through reasonable accommodation.” Bates, 511 F.3d at 992-93.
Union Pacific attacks plaintiff's reliance on Bates: “the central question in Bates revolved around an employer's business-necessity defense when the qualification standard at-issue was not federally mandated [whereas in this case] Union Pacific was bound by the FRA color-vision regulations for engineers.” Def.'s Reply to Mot. Summ. J. 10-11 (doc. 28). Yet because plaintiff qualified for recertification under the relevant FRA regulations by passing the 2019 Ishihara, and neither the FRA nor the NTSB require secondary testing under the present circumstances, Bates is not inapt.
“To show ‘job-relatedness,' an employer must demonstrate that the qualification standard fairly and accurately measures the individual's actual ability to perform the essential functions of the job.” Id. at 996. Stated differently, “[a]n employer urging a business necessity defense must validate the test or exam in question for job-relatedness to the specific skills and physical requirements of the sought-after position.” Id. at n.12 (citation and internal quotations omitted). “To show that the disputed qualification standard is ‘consistent with business necessity, the employer must show that it substantially promotes the business's needs.” Id. (citations and internal quotations and brackets omitted). “The ‘business necessity' standard is quite high, and is not to be confused with mere expediency.” Id. (citation and internal quotations omitted).
“Although the specifics of proof in direct threat and business necessity cases may vary, the frameworks are parallel.” Id. at 993. Nevertheless, “[i]n this Circuit, the business necessity defense is rarely demonstrated.” Littlefield v. Nevada, ex. rel. Dep't of Pub. Safety, 195 F.Supp.3d 1147, 1159 (D. Nev. 2016); see also Cripe v. San Jose, 261 F.3d 877, 890 (9th Cir. 2001) (“we have had little occasion to apply that defense, although in one case we held it sufficient to render non-discriminatory a medical examination when an employee's ‘health problems have had a substantial and injurious impact on an employee's job performance'”) (quoting Yin v. California, 95 F.3d 864, 868 (9th Cir. 1996)).
Union Pacific's arguments surrounding this defense are without merit. As addressed in Section I(A), Union Pacific's decision to subject plaintiff to the Light Cannon CVFT due to his Ishihara failure six years prior was not required by federal regulation. Furthermore, given that successfully completing the Ishihara is sufficient to meet the FRA's thresholds for color acuity for engineers, it is unclear whether Union Pacific's protocol actually promotes, let alone substantially promotes, railway safety.
To that end, a disputed issue of material fact exists concerning the validity of the Light Cannon CVFT. Union Pacific makes much of the fact that “[t]he FRA regulation does not require ‘validation' of the field test.” Def.'s Reply to Mot. Summ. J. 1 (doc. 28). However, both the NTSB recommendations and FRA interim interpretations do implore railroads to design secondary field tests that have “established and acceptable levels of validity.” Walsh Decl. Ex. B, at 35 (doc. 20); see also Walsh Decl. Ex. D, at 108 (doc. 20) (“[a]lthough FRA's rules grant discretion to railroads in selecting a test protocol, FRA's longstanding interpretation of this provision is that the test offered by a railroad must be a valid”). And Union Pacific relies on the NTSB recommendations and FRA interim interpretations at various points in support of its actions. See, e.g., Def.'s Mot. Summ. J. 6-9, 34 (doc. 19); Def.'s Reply to Mot. Summ. J. 15-16 (doc. 28).
Thus, while Union Pacific is correct that the FRA leaves development of secondary testing under 49 C.F.R. § 240.121(e) to the discretion of the railroad and does not mandate specific tests or policies, it has nonetheless established minimum standards. And the record is equivocal as to whether those standards were met in this case.
Both parties rely on the testimony of Dr. Rabin to establish their contrary positions. In particular, Union Pacific argues that plaintiff “takes Dr. Rabin's deposition testimony out of context to falsely suggest that the CVFT was not ‘valid' [by] highlight[ing] the CVFT's failure rate among ‘Color Vision Normal' subjects, while ignoring the fact that this issue had nothing to do with the validity of the CVFT as a field test under 49 C.F.R. Pt. 242, Appx. D(2).” Def.'s Reply to Mot. Summ. J. 5 (doc. 28). Aside from the fact that 49 C.F.R. § 242, App. D pertains to the “Medical Standard Guidelines” for conductors, it is silent as to validity testing (as is 49 C.F.R. § 240, App. F, the “Medical Standard Guidelines” for engineers).
In any event, Dr. Rabin expressly agreed that the Light Cannon CVFT was “not valid [prior to 2020] because of the high failure rate of color vision normal people” and the excerpted testimony proffered by Union Pacific is not necessarily inconsistent therewith. Barney Decl. Ex. 15, at 7576, 104, 115, 210 (doc. 23-16). That is, without specifying any particular timeframe, Dr. Rubin separately indicated that the Light Cannon CVFT was “a valid field test which simulates their real-world demands” to the extent it attempted to implement “the quarter-mile distance [and] lights used [because those] are exactly what one may experience in the field.” Walsh Decl. Ex. B, at 38 (doc. 28-2); see also Pl.'s Reply to Mot. Partial Summ. J. 11 (doc. 29) (“[w]hen Dr. Rabin testified that the Light Cannon was valid, he was referring to the test as it existed in 2022 [at the time he was deposed], not in 2019”).
While “raw subjects” were used during Dr. Rabin's study and Dr. Ivan, Union Pacific's Ophthalmology Consultant, stated that a conductor working for Union Pacific “would have known what the four color choices are just by practical exposure,” it is not clear from the record before the Court that the 2019 version of the Light Cannon CVFT actually measured what it was intended to measure. Walsh Decl. Ex. A, at 143-44 (doc. 28-2); see also id. at 139-41 (Dr. Ivan testifying that “part of the validation methodology that you go through” is testing subjects to “figure out those kind of errors that could taint the test,” and that showing subjects all the colors prior to administering the Light Cannon CVFT - a practice that had not been implemented in 2019 -drastically improved the testers' results); Barney Decl. Ex. 1, at 9 (doc. 26-2) (plaintiff's color vision expert, Dr. Neitz, opining that, “[u]p until 2020, according to Dr. Rabin's report, the Light Cannon performed the opposite to the dictates of the FRA. Rather than being a further evaluation capable of identifying people who fail the Ishihara but who can perform the visual tasks required to work on the railroad, the Light Cannon has been demonstrated by a scientific study to fail everyone diagnosed as have any type of color vision deficiency - even the mildest forms - and it fails more than 25% of people diagnosed as having normal color vision”); Barney Decl. Ex. 10, at 20-21 (doc. 26-11) (Dr. Rabin's and Dr. Ivan's initial January 2016 report on the Light Cannon CVFT, concluding “the device in its current form remains technologically immature” and that “exclusive reliance on the [Light Cannon] without proper validation as the only test to verify safe performance in critical color vision railroad tasks is problematic and challengeable”).
Union Pacific's argument presumes that plaintiff was not color vision normal based on the Light Cannon CVFT, but his results on the 2019 Ishihara are to the contrary. 49 C.F.R. § 240.121(c); see also Walsh Decl. Ex. B, at 35 (doc. 28-2) (Dr. Rabin describing the Ishihara as “the most sensitive [test] out there” and, “if administered correctly, [it] unequivocally identifies the presence of hereditary color vision deficiency”); Barney Decl. Ex. 1, at 4-6 (doc. 26-2) (Dr. Neitz opining that “the Ishihara has sensitivity of very close to 1; this means that it detects very close to 100% of people with red-green color vision deficiency even very mild sufferers [but] the test is so difficult that even people with normal color vision sometimes fail . . . An initial screening with the Ishihara effectively separates normal from color deficient people”).
Finally, Union Pacific's assertion that the “FRA has concluded that [the Light Cannon] CVFT adequately measures color-vision acuity” is not born out by the record.Def.'s Reply to Mot. Summ. J. 12 (doc. 28). The sole evidence that Union Pacific relies on in support of this proposition - i.e., Dr. Doerr's deposition testimony - merely reflects that an unidentified individual from the FRA was, at some time in 2015, “t[aken] through the test” and, in Dr. Doerr's recollection, “favorably impressed.” Def.'s Mot. Summ. J. 11 (doc. 19); Walsh Decl. Ex. H, at 97-98 (doc. 24); see also Barney Decl. Ex. 17, at 134, 138-40 (doc. 26-18) (Ms. Gengler testifying that the “FRA came for a visit [and she] talked through what we do with them . . . [that discussion] was pretty limited”). Accordingly, “there is no evidence in the record that the FRA ever completed a direct assessment of the test, nor that it has it performed any evaluation of its validity.” Pl.'s Resp. to Mot. Summ. J. 26 (doc. 26).
Likewise, Brunskill does not stand for the proposition that a “[p]laintiff's - or his expert witness's - allegations that Union Pacific should have developed a better CVFT, or employed scientific testing of the CVFT, are immaterial.” Def.'s Mot. Summ. J. 24 (doc. 19). While this case recognized “that the railroad may exercise its discretion to conduct the field test in a manner of its choosing in conjunction with its medical advisor,” it predated the Goodwell accident and did not involve a direct challenge to the defendant railroad's field test or testing procedures. Instead, the plaintiff employee alleged that his field test was not administered in the “most effective manner.” Brunskill, 2008 WL 413281 at *27. Although the plaintiff claimed that his field test - which required him to identify signal colors from real wayside signals in a railyard - should have been conducted from a moving train, “the parties [did] not dispute that it does not make a difference whether the field test is conducted from the ground or from the cab of a moving train - either method is acceptable.” Id. at 28.
Given Union Pacific's failure to demonstrate “job-relatedness” and that “the disputed qualification standard is consistent with business necessity,” summary judgment is improper, irrespective of whether plaintiff is proceeding under a “regarded as” theory. As such, this is not one of those unique cases where this defense applies. SeeLittlefield, 195 F.Supp.3d at 1160 (denying the employer's summary judgment motion as to the business necessity defense in regard to a safety-based vision qualification standard where the employer failed to proffer any medical evidence “to establish even the first requirement that the qualification standard is (1) job-related, let alone (2) consistent with business necessity, and (3) that performance cannot be accomplished by reasonable accommodation”) (citation and internal quotations omitted).
C. Subsequent Steps of the McDonnel Douglas Burden-Shifting Framework
Under McDonnell Douglas, if the plaintiff establishes a prima facie case, the burden shifts to the defendant to provide evidence of legitimate non-discriminatory reasons for the challenged action. Snead, 237 F.3d at 1093. If the defendant meets that burden, the plaintiff must then “raise a triable issue of material fact as to whether the defendant's proffered reasons . . . are mere pretext for unlawful discrimination.” Hawn v. Exec. Jet Mgmt., 615 F.3d 1151, 1155-56 (9th Cir. 2010). “As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment.” Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citation and internal quotations omitted).
As addressed herein, plaintiff established a prima facie case, Albertson's is inapplicable, and disputed issues of material fact exist as to both affirmative defenses raised by Union Pacific. Under these circumstances, summary judgment in favor of Union Pacific is not appropriate.
Regardless, the Court notes there is evidence from which a reasonable jury could conclude plaintiff's perceived disability was a motivating factor in his removal and that Union Pacific's proffered reasons - notably, the FRA regulations - were pretextual. As denoted, the FRA regulations did not cloak Union Pacific's actions in legitimacy. And there is no evidence in the record before the Court to suggest that any other employee who passed the primary scientific method was subjected to secondary testing based on a failure that predated the last recertification cycle.
Given that plaintiff was nearly 60 at the time these events transpired and there were otherwise no concerns surrounding his fitness for duty, coupled with the fact that he had no recent history of citations or Ishihara failures, an open question exists surrounding Union Pacific's motivations for administering the Light Cannon CVFT. See France v. Johnson, 795 F.3d 1170, 1175 (9th Cir. 2015) (to establish pretext, the plaintiff can “directly [show] that unlawful discrimination more likely than not motivated the employer” or “indirectly [show] that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable”); Snead, 237 F.3d at 1094 (a disability discrimination claim “can survive summary judgment without producing any evidence of discrimination beyond that constituting [the] prima facie case, if that evidence raises a genuine issue of material fact regarding the truth of the employer's proffered reasons”); see also Pl.'s Resp. to Mot. Summ. J. 30 (doc. 26) (“[a]s Union Pacific admits, passing the Ishihara is generally sufficient to earn an engineer certification, so its decision to subject [plaintiff] to additional testing was inconsistent with Union Pacific's treatment of other engineers”).
RECOMMENDATION
For the foregoing reasons, plaintiff's Motion for Partial Summary Judgment (doc. 23) should be granted. Union Pacific's Motion for Summary Judgment (doc. 19) should be granted as to plaintiff's failure to accommodate claim and denied in all other respects. The parties' requests for oral argument are denied as unnecessary.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment.