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Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railroad

United States District Court, Tenth Circuit

August 16, 2013

Equal Employment Opportunity Commission, Plaintiff,
Burlington Northern Santa Fe Railroad, Defendants. Kent Duty, Plaintiff-Intervenor,


JOHN W. LUNGSTRUM, District Judge.

The Equal Employment Opportunity Commission (EEOC) filed suit against defendant Burlington Northern Santa Fe Railroad (BNSF) under the Americans with Disabilities Act, 42 U.S.C. ยง 12101 et seq., alleging that BNSF regarded a job applicant as disabled when it failed to hire that applicant to work as a locomotive electrician. That job applicant, Kent Duty, intervened in the lawsuit, alleging the same "regarded as" claim set forth by the EEOC and additional claims under the ADA-namely, that BNSF failed to hire him based on an actual disability and/or in retaliation for engaging in protected activities and failed to reasonably accommodate his disability.

Previously, BNSF moved to dismiss the "regarded as" claims, the actual disability claim and the retaliation claim on the grounds that the allegations underlying those claims were insufficient to comport with the requirements of Federal Rule of Civil Procedure 8 as interpreted by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The court denied BNSF's motion with respect to the "regarded as" claims and the actual disability claim, finding that the complaints satisfied the pleading standards of Twombly and Iqbal. With respect to Mr. Duty's retaliation claim, the court granted BNSF's motion but provided Mr. Duty an opportunity to file an amended complaint to the extent he was able to allege specific facts necessary to satisfy the plausibility requirement.

Mr. Duty has now filed an amended complaint in which he alleges additional facts concerning his retaliation claim as well as an additional "regarded as" claim. BNSF moves to dismiss both claims. As will be explained, the motion is denied.


The following well-pleaded factual allegations, taken from Mr. Duty's amended intervenor complaint, are accepted as true for purposes of BNSF's motion. Plaintiff-Intervenor Kent Duty has physical impairments to his right hand and wrist as a result of injuries he sustained in a car accident at sixteen years of age, over twenty years ago. As a result of this impairment, Mr. Duty has limited grip strength in his right hand and limitation in the range of motion in his right hand and wrist. In July 2008, Mr. Duty applied for the open position of Locomotive Electrician at BNSF's Argentine facility in Kansas City, Kansas. In August 2008, BNSF responded to Mr. Duty's job inquiry and asked him to participate in a "Realistic Job Preview & Testing Session" and to interview for the position. Mr. Duty successfully completed the testing and interview process and, on August 19, 2008, BNSF extended a conditional offer of employment to Mr. Duty, subject to a drug screen, background check, physical examination, medical evaluation and medical history questionnaire.

Mr. Duty completed the medical questionnaire and a medical evaluation administered by a third-party. On September 22, 2008, Mr. Duty received an e-mail from the BNSF Medical Review Department notifying him that the third-party administrator had referred Mr. Duty's medical evaluation to the BNSF Medical Department for further review. The e-mail advised Mr. Duty that "BNSF Medical Review" was not able to determine Mr. Duty's medical qualification for the Locomotive Electrician position due to "uncertain functional abilities of the right hand/wrist" and that Mr. Duty could be reconsidered if he supplied a current Functional Capacity Evaluation (FCE) of his right hand and arm. The e-mail provided a detailed description of the information needed by BNSF Medical, including full range of motion measurements; pinch grip, palmer grip and fingertip dexterity assessments; and grip strength using Jamar dynamometer.

Upon receiving the e-mail, Mr. Duty asked Tamala Cleaver in BNSF's Human Resources department to provide him with a complete job description for the Locomotive Electrician position. BNSF never provided the job description. In early October 2008, Mr. Duty e-mailed BNSF's Central Staffing Human Resources department to confirm that additional information was necessary despite the fact that he had been working successfully in the electrical maintenance field since 1992. The following day, October 7, 2008, Mr. Duty received a response from an unidentified person at BNSF (from the e-mail address "") which advised Mr. Duty that Central Staffing Human Resources did "not get involved in the Medical Review process, " that he needed to follow the instructions provided to him by Medical Review, and that they could not override or change Medical Review's determination that additional information was needed.

Mr. Duty responded to that e-mail by expressing concern that his disability could "discount his options as a candidate" and that BNSF was not operating "within the description of an EOE employer." Mr. Duty advised Central Staffing that he could not provide an evaluation reflecting a fully functional right hand and asked for "what avenues" he might take to move the application process forward. On October 10, 2008, Mr. Duty received an e-mail (again from an unidentified person at the address) reiterating that Central Staffing could "not get involved in the pre-employment medical process, " that he needed to contact "BNSF Medical" regarding the decision, and that Central Staffing would not respond to e-mails at that inbox regarding the medical process.

Thereafter, Mr. Duty made direct contact with BNSF's Medical Department in Fort Worth, Texas to explore his options aside from simply repeating the testing in which Mr. Duty had already participated. During a phone conversation with an unidentified person in the Medical Department, Mr. Duty explained the nature of his impairments, his work experience, his communications with human resources and the status of his job application and post-offer medical examination. My Duty then inquired about the need for further testing as set forth in the September 22, 2008 email from the Medical Review Department. The person to whom Mr. Duty spoke excused herself, explaining that she would need to speak to someone about Mr. Duty's inquiries, and then returned to tell Mr. Duty that she could not assist him other than to tell him to follow the instructions in the September 22, 2008 email requiring Mr. Duty to obtain a complete report to allow the medical department to evaluate his condition again.

In early December 2008, Mr. Duty obtained a FCE at his expense and provided it to BNSF. The evaluation concluded that Mr. Duty had minimal if any voluntary control of his right thumb, index finger, middle finger or ring finger but that he demonstrated the ability to utilize a functional hook grip to handle materials with his right hand. On December 29, 2008, Mr. Duty received an email advising him that the "BNSF Medical Officer has determined that you are not medically qualified for [the] Locomotive Electrician position due to significant risks associated with lack of grip strength in your right hand, including safety concerns such as your inability to support your body weight with one hand during mandatory three point contact when climbing on and off locomotives." BNSF, then, revoked the conditional offer of employment that it had extended to Mr. Duty because he could not meet BNSF's requirement that he have three points of contact when ascending and descending ladders and he could not grip tools firmly with both hands.

Pleading Standards

Defendants' motions to dismiss are based on Federal Rule of Civil Procedure 12(b)(6). In analyzing such motions, the court accepts as true "all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff." Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citation omitted). Under Rule 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Burnett, 706 F.3d at 1235 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

According to the Tenth Circuit, "[t]wo working principles underlie this standard. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.'" Id. (quoting Iqbal, 556 U.S. at 678). "Thus, mere labels and conclusions, ' and a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim." Id. (citations and quotations omitted). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. (quoting Iqbal, 556 U.S. at 679). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Iqbal, 556 U.S. at 678). "The complaint must offer sufficient factual allegations to raise a right to relief above the speculative level.'" Id. (quoting Twombly, 550 U.S. at 555). Although "[s]pecific ...

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