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Lincoln v. BNSF Railway Co.

United States District Court, D. Kansas

April 24, 2017

LARRY D. LINCOLN and BRAD C. MOSBRUCKER, Plaintiffs,
v.
BNSF RAILWAY COMPANY, Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This matter comes before the court on defendant BNSF Railway Company's Motions for Summary Judgment against plaintiffs Larry Lincoln and Brad Mosbrucker (Docs. 58, 60). BNSF moves separately for summary judgment against each plaintiff. The court rules both motions in this consolidated order because plaintiffs assert the same three claims arising from related events: (1) disability discrimination and failure to accommodate under the Americans with Disabilities Act (“ADA”), (2) retaliation under the ADA, and (3) retaliation for activity protected by the Federal Railway Safety Act (“FRSA”). For reasons explained below, the court grants BNSF's Motions and enters summary judgment against both plaintiffs.

         I. LEGAL STANDARD

         Summary judgment is appropriate if the moving party demonstrates that “no genuine dispute [about] any material fact” exists and that it “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When applying this standard, the court views the evidence and draws inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). A disputed “issue of fact is ‘genuine' ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party' on the issue.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). And an “issue of fact is ‘material' ‘if under the substantive law it is essential to the proper disposition of the claim' or defense.” Id. (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).

         The moving party bears “‘both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.'” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To carry this burden, the moving party “‘need not negate the non-movant's claim, but need only point to an absence of evidence to support the non-movant's claim.'” Id. (quoting Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)).

         If the moving party meets its initial burden, the non-moving party “‘may not rest upon its pleadings, but must set forth specific facts showing a genuine issue for trial [on] those dispositive matters for which it carries the burden of proof.'” Id. (quoting Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson, 477 U.S. at 248-49. “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 671 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)). “Unsubstantiated allegations carry no probative weight in summary judgment proceedings.” Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Phillips v. Calhoun, 956 F.2d 949, 951 n.3 (10th Cir. 1992)). To survive summary judgment, the non-moving party's “evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise.” Id. (citing Rice v. United States, 166 F.3d 1088, 1092 (10th Cir. 1999)).

         Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327. To the contrary, it is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of every action.'” Id. (quoting Fed.R.Civ.P. 1).

         II. UNCONTROVERTED FACTS

         The following facts either are uncontroverted or, where controverted, they are stated in the light most favorable to plaintiffs as the non-moving parties.

         A. The Chemical Spill

         Both plaintiffs were working as Maintenance of Way (“MOW”) workers for BNSF when, on Tuesday, October 9, 2007, a tank car began to leak, exposing plaintiffs to a hazardous chemical. Plaintiffs were rushed to the emergency room where both were treated and released later the same day. Plaintiffs returned to work without any work restrictions six days later.

         B. The Demand Letter

         Two and a half years after the chemical spill, BNSF offered plaintiffs a settlement for their injuries from the 2007 chemical spill, but the parties were unable to reach an agreement. Plaintiffs' lawyer, Jared Woodfill, then sent demand letters to BNSF's claim representative, Alan Bladsel. The letters described each plaintiff's injuries in detail. The letter sent on Mr. Lincoln's behalf claimed he suffered regular headaches, bloody noses, colds, respiratory infections, and anxiety attacks. The letter sent for Mr. Mosbrucker described his condition to include visual, pulmonary, and emotional/psychiatric problems.

         C. Plaintiffs' Medical Leave

         Someone at BNSF forwarded Mr. Lincoln's demand letter to Natalie Jones, the Medical and Environmental Health (“MEH”) Department Field Manager for BNSF's Kansas division. It is unclear whether Mr. Mosbrucker's demand letter was forwarded as well but, regardless, Ms. Jones learned about both demand letters. In her role as Field Manager, Ms. Jones consulted with Dr. Sharon Clark, a Field Medical Officer for BNSF's medical department, to determine whether plaintiffs should continue working. In May 2010, Dr. Clark determined that BNSF should place both plaintiffs on a medical leave of absence. As a result, plaintiffs were removed from their positions. Dr. Clark explained her decision about Mr. Lincoln in an email she sent to Mr.Blasdel:

As per our conversation today, based on the information in [Mr. Woodfill's] letter, I don't see any other avenue than to ask the employee for updated medical information to either support or deny [Mr. Woodfill's] claims regarding current functionality.

Doc. 73-15 at 1. Dr. Clark went on to explain that the medical information Ms. Jones had for Mr. Lincoln was more than a year old, and that Mr. Lincoln needed “to provide updated medical information to clarify the newly raised safety issues [presented in the demand letter] despite the employee's verbal claims . . . that he can do his job.” Id. at 1.

         On May 21, 2010, Division Engineer Darin Martin sent each plaintiff a letter informing the two men they would be placed on a medical leave of absence lasting from May 27, 2010 to June 27, 2010. The letter stated in part:

Whereas, you have worked successfully for 2 ½ years since the alleged injury, we find it unfortunate to have to request that you provide current medical information to our Medical Department to support that you are indeed safe to work as a [MOW] Machine Operator.
You may not even be aware that your attorney has placed this burden on you, and we hope that you will contact our Medical Field Manager, Natalie Jones, to quickly resolve this issue, so that you can return to providing financially for your family.
Since the BNSF Railway is essentially placed on notice by the letter, we do not want to give you job assignments that would jeopardize your health and safety.
The Medical and Environmental Health Department determines fitness of duty of BNSF employees by reviewing their medical information. You will be placed on a thirty day medical leave of absence.

Doc. 59-12 at 1; see also Doc. 61-13 at 1. The letters also asked each plaintiff to have his treating physician fax Ms. Jones: (1) the diagnosis of the conditions for which he was being treated, (2) the treatment plan or treatment being received, (3) an estimate of how long treatment would continue, and (4) information about their functional level and restrictions. Doc. 59-12 at 1; see also Doc. 61-13 at 1.

         Subsequent letters informed plaintiffs that BNSF had extended their medical leave. Each such letter included a medical leave form that instructed plaintiffs to read all of the information carefully. The forms also instructed each plaintiff “to work with [his] Field Manager or [the] Medical and Environmental Health (MEH) Department” while he was off duty. Doc. 59-30 at 2; Doc. 61-57 at 2. These subsequent letters also advised that plaintiffs would need to be “released by the medical department prior to returning to work.” Doc. 59-30 at 2; Doc. 61-57 at 2.

         On July 13, 2010, Dr. Clark sent another email to certain BNSF personnel, including Darin Martin, Natalie Jones, and Mr. Bladsel. It read:

The employee did indeed miss only 3 days of work back in 2007 after a claimed exposure incident. He did work full duty until his attorney, a Mr. Jared Woodfill, forwarded a . . . letter to BNSF['s] claims Department noting that Mr. Lincoln has suffered permanent injuries/illness due to the 2007 incident and demanded a considerable sum of money.
The conditions noted in the attorney's letter were such that Mr. Lincoln's ability to work safely was brought into question.
Due to this concern, it was decided that the employee should not be allowed to remain at work until he provided updated information regarding his medical conditions.
Please note that the impetus behind this removal from service action is the letter from the employee's voluntarily-selected legal representative.
To date, Mr. Lincoln has provided some medical information requested of him. He is in the process of providing the remainder of the information. To date, for the conditions for which the employee has provided information, the employee does appear to be able to perform his job duties.
. . .
The employee has put himself into this situation.
On one hand he is claiming that he has significant physical ailments (which cause symptoms of safety concern) from an incident in 2007-in order to garner money from BNSF claims.
On the other hand he is complaining that he was wrongfully removed from service. He has been slow in providing the evidence to support his current physical status (which brings into question the attorney's claims of current illnesses) . . . .

Doc. 73-16 at 1.

         D. BNSF's Return to Work Process

         BNSF's MEH Department works with employees to determine their “fitness for duty” in order to return to work after being removed. The employee usually initiates this “return to work” process by submitting medical information to the MEH Department. As long as the employee's medical information indicates that the employee is fit to perform the requirements of his job, the employee is released to work. Doc. 59-6 at 3. The employee's fitness for duty review is triggered when the employee provides documentation from his treating physician that clears him to return to work. Id.

         BNSF's MEH department addresses an employee's return to work in the following fashion. If the employee's physician releases him to work but the employee's evaluation precludes him from doing his assigned job, MEH will examine whether there is another job that the employee can perform that fits the physician's work recommendations. But, if the physician does not release the employee to work, MEH will discuss a craft transfer with the employee.

         BNSF's craft transfer policy allows employees who are represented by a collective bargaining agreement to transfer from one craft to another craft within BNSF's work force. But, “[e]mployees must be eligible and meet all of the requirements for a craft transfer in order to transfer to another craft.” Doc. 74-37 at 1. General eligibility requirements for an employee to transfer crafts include: (1) applying through BNSF's career website for the position to which the employee wishes to transfer; (2) meeting the basic qualifications for the position as indicated by the job posting; and (3) meeting the guidelines of the supervisor/record review. Id. at 2. Also, an employee seeking a craft transfer must follow the internal selection process. Id. This process includes participating in an interview with Human Resources and the hiring manager. Id.

         MEH also looks outside BNSF for positions that the employee may be qualified to perform. MEH will work with the employee to develop a resume, provide leads, or assist the employee with education.

         E. Plaintiffs' Return to Work Experience

         After BNSF placed plaintiffs on medical leave, they began working with the MEH Department to try to return to work. Ms. Jones testified that plaintiffs communicated well with her over the course of their interactions. After Ms. Jones's departure from BNSF, plaintiffs worked with others in the MEH department including Laurie Graham and Chris McGinnis. These interactions occurred over several years, and the following timeline summarizes them.

         1. Mr. Lincoln 2010

• On June 24, 2010, Ms. Jones documented that Mr. Lincoln had a medical appointment in July and would submit a final report about his medical conditions afterwards.

         • Later, in July, a case note documented that Ms. Jones had sent both plaintiffs job postings about available clerk positions.

         • In August, Mr. Lincoln was diagnosed with reactive airway dysfunction system (RADS). Nurse practitioner Melissa West provided a report from August 2010 stating that Mr. Lincoln was suffering from residual complications from his 2007 chemical exposure. These complications included: (1) allergic rhinitis; (2) epistaxis; (3) dyspnea on exertion; (4) wheezing; (5) headaches; (6) insomnia; (7) anxiety; and (8) fatigue. This report also asserted that Mr. Lincoln should be restricted to indoor employment.

         • In September, Ms. Jones sent Mr. Lincoln a letter to confirm some of their conversations. Specifically, Ms. Jones sought Mr. Lincoln's pulmonary function test report. Ms. Jones's letter also included study materials for Mr. Lincoln to take the First Line Supervisor test.

         • Later in September, Ms. Jones emailed Mr. Lincoln with information about an available welder position and confirmed that she would administer the FLS test to Mr. Lincoln. He passed the test.

         • Ms. Jones informed Mr. Lincoln that “[p]lacement as an eligible FLS candidate is extremely likely due to the expected high number of retirements.” Doc. 73-29 at 7.

         2011

         • A supplemental doctor's note from Mr. Lincoln's physician dated February 7 or 9, 2011, stated: (1) Mr. Lincoln still had chronic rhinitis and epistaxis; (2) outdoor exposure triggered worsening of his symptoms; (3) Mr. Lincoln was not able to return to work; and (4) the estimated date of return to work was still indefinite for outdoor employment.

         • On June 14, 2011, Mr. Lincoln's nurse practitioner certified that Mr. Lincoln had been disabled from performing his regular occupation as of July 2010 with an undetermined end date. Also, the letter certified that Mr. Lincoln was permanently disabled from his regular occupation with commentary that “outdoor exposures trigger worsening rhinitis symptoms.” Doc. 59-18 at 1.

         • At a deposition taken during 2011, Mr. Lincoln testified that he suffered from migraines and, because of his RADS diagnosis, from shortness of breath. He testified that he was miserable when he was outdoors, and that he could not return comfortably to his job as a welder.

         • Ms. Jones wrote to Mr. Lincoln on July 28, 2011, encouraging him to apply for additional upcoming clerk jobs. In the letter, Ms. Jones told Mr. Lincoln that a “college degree will be a plus” as would Microsoft Office skills and typing 25 WPM. Doc. 59-13 at 10. The letter did not mention any other requirements for the clerk positions.

         • MEH agreed to send Mr. Lincoln to Washburn Institute of Technology in Topeka to take a class so he could pass the WPM typing requirement for the clerk positions and develop additional PC and Windows skills. He completed the class and received a certificate. Mr. Lincoln believed that if he passed the typing test, he would be given a clerk position.

         • Mr. McGinnis took over for Ms. Jones as Field Manager for BNSF's MEH Department. In August, he authorized BNSF to pay for a custom class for Mr. Lincoln.

         • Mr. McGinnis offered Mr. Lincoln assistance in getting back to work. This discussion included his MOW job, or going to college and finding another position.

         2012

         • Laurie Graham introduced herself to Mr. Lincoln as the new BNSF MEH field manager in a letter dated February 3, 2012. The letter advised:

According to your file, I see that we have not heard from you in quite a while. I see that you were completing keyboarding and possibly other courses. I would welcome the opportunity to speak with you regarding this training and your current medical status. My goal is to assist you with returning to gainful employment.

Doc. 59-13 at 20.

         • Ms. Graham entered a case note on September 6, 2012, that documented a conversation with Mr. Lincoln. The note stated the following: (1) Mr. Lincoln advised that he had passed a 26 word-per-minute typing exam; (2) Ms. Graham discussed alternate internal jobs; (3) Mr. Lincoln reported that he thought he could work in a shop environment, but that his doctor identified chemicals as the irritant in the shops; (4) Ms. Graham confirmed that Mr. Lincoln had three and a half years of college.

         • On October 1, Ms. Graham sent Mr. Lincoln a letter. It stated:

I have spent some time researching opportunities within BNSF since our last conversation and am writing to let you know what steps need to be taken to get you to a competitive level.
With your restrictions of needing an “inside environment” as well as your completion of 3½ years of college, applying for a clerk position would be the most reasonable approach. You are currently typing at 26 net wpm which is barely above the 25 net wpm minimum requirement. Definitely practice at home to increase this skill.
We discussed the fact that the applicant pool for these clerk positions are highly competitive with many applicants having advanced degrees in accounting and/or finance. Completing your degree as well as taking classes in accounting or finance would make you more competitive. We would be willing to pay for two quarters of college credits to assist you with this plan.
In regards to your applications for a Mechanical position, since these positions require 75% of outside work, you are significantly limited in being selected for one of these positions. I would suggest that you work with your physician to identify a respirator that we would be willing to provide to use not only in the mechanical shop environment but also outside.
I would also recommend that you take advantage of vocational services for skill enhancement, interviewing skills, and resume development to help you in securing employment outside BNSF. I can be reached at the number above should you decide to pursue any of these options.

Doc. 59-20 at 1.

         • On October 1, Mr. Lincoln sent Darin Martin a letter with the reference line “Notice of Request for Accommodation.” Doc. 59-19. In the letter, Mr. Lincoln formally requested that BNSF enter the interactive process of evaluating jobs to find those that fit his qualifications and restrictions, or ask if BNSF could reasonably accommodate to fit his restrictions. See Id. He specifically requested that BNSF search for non-MOW placement at BNSF in addition to considering MOW placement. Id.

         • On December 4, 2012, Mr. Lincoln sent a letter to Jeanne Artzer enclosing an “employee request for accommodation” form. Doc. 59-21. Part of the form required a physician's signature, but Mr. Lincoln never got a doctor to sign it. This letter included an attachment describing the accommodations that Mr. Lincoln sought. The accommodations he sought asked to “keep outdoor work as infrequent and brief as possible to limit exposure to allergens and toxins.” Id. at 2.

         • BNSF never informed Mr. Lincoln that he had filled out the Request for Accommodation form incorrectly.

         2. Mr. Mosbrucker

         2010

         • On June 23, 2010, Mr. Mosbrucker provided BNSF with a “Statement of Sickness” form signed by his nurse practitioner. The form stated that: (1) Mr. Mosbrucker had been evaluated for chemical exposure; (2) he had been referred to a pulmonologist; (3) he started medication for anxiety on June 23, 2010; (4) he was expected to be seen again on July 14, 2010; (5) his current condition included “Anxiety-probable PTSD, need further psychiatric evaluation;” and (6) a return to work date of “2011 (unknown).” Doc. 61-15 at 2.

         • Ms. Jones recommended that Mr. Mosbrucker apply for positions even if he lacked the basic qualifications for them so that he might gain experience from applying and interviewing. Ms. Jones also recommended to Mr. Mosbrucker that he take courses to enhance his skills.

         • On July 1, 2010, Ms. Jones documented that Mr. Mosbrucker had informed her that his doctor was taking him off work until 2011 without any known return to work date.

         • On July 29, 2010, Ms. Jones sent Mr. Mosbrucker a letter informing him of postings for clerk positions. It stated: “[p]lease note there is on the job training, and the lifting requirement may be accommodated by breaking down to smaller lifting loads.” Doc. 74-33 at 4.

         • Mr. Mosbrucker's nurse practitioner sent a disability letter to Ms. Jones stating that it was undetermined whether Mr. Mosbrucker was permanently disabled, but that his estimated return to work date was “pending psychiatric evaluation.” Doc. 61-15 at 3.

         • Around September 1, 2012, Ms. Jones sent Mr. Mosbrucker a letter reminding him that he could continue to apply for any craft transfer positions that BNSF posted. She also informed Mr. Mosbrucker that her program would pay for refresher courses for different crafts.

         • Mr. Mosbrucker's nurse practitioner sent BNSF a letter in mid-September. It stated: “Mr. Mosbruck[er] is suffering from many residual complications since [his 2007 chemical exposure] including headaches, dyspnea on exertion, chest pain, anxiety, insomnia and fatigue.” Doc. 61-16 at 1. It also stated that Mr. Mosbrucker “should be restricted to employment indoors.” Id.

         • In late October, Ms. Jones sent Mr. Mosbrucker another letter. In it, Ms. Jones reminded Mr. Mosbrucker that BNSF employees have the opportunity to seek modifications and accommodations in their craft, and that she hoped he could resume his MOW position. The letter also reminded Mr. Mosbrucker that job postings change daily, and that he should check for opportunities a couple of times per week. Doc. 61-15 at 20. It also informed Mr. Mosbrucker that the First Line Supervisor test offers exempt employment opportunities with BNSF, and offered to administer the test at his convenience in Topeka. Id. Finally, Ms. Jones' letter offered to help cover the cost of tuition and books for Mr. Mosbrucker to complete a functional program at the local community college. Id.

         • Ms. Jones administered the First Line Supervisor test to Mr. Mosbrucker. He did not pass it.

         • Ms. Jones sent Mr. Mosbrucker another letter on November 30, 2010, reminding Mr. Mosbrucker about the upcoming enrollment for the spring semester. She also offered to assist with tuition and books. Doc. 61-15 at 23.

         • In December, Mr. Mosbrucker's nurse practitioner signed a supplemental doctor's statement about him. This statement provided an estimated return to work date of May 1, 2011, and reiterated that Mr. Mosbrucker was unable to work outdoors in proximity to moving trains.

         • BNSF has not completed a fitness for duty review for Mr. Mosbrucker since 2010 because he has never provided BNSF with documentation suggesting that he was able to return to work.

         2011

         • In January 2011, Ms. Jones sent Mr. Mosbrucker another letter. This letter asked about his interest in introductory computer classes such as Microsoft Office to advance his skills. The letter also informed him that BNSF could assist him through four semesters of vocational or community college. Doc. 61-15 at 24.

         • In late January, Ms. Jones wrote a letter to Mr. Mosbrucker's nurse practitioner requesting an update about his medical condition. His nurse practitioner Mansfield responded, affirming that Mr. Mosbrucker was restricted to indoor employment to prevent worsening of his condition.

         • In May, Ms. Jones sent another letter to Mr. Mosbrucker requesting his medical records from his pulmonologist and psychiatrist so that she could make a fitness for duty recommendation. Mr. Mosbrucker does not recall making any efforts to secure these records.

         • In July, Ms. Jones sent Mr. Mosbrucker a letter advising him about future clerk positions that required him to type 25 words per minute.

         • Mr. McGinnis sent a letter to Mr. Mosbrucker introducing himself and asking for his medical records. Mr. McGinnis's letter included his phone number, fax number, and email address, but Mr. Mosbrucker never faxed or emailed any medical records or spoke to Mr. McGinnis. Mr. McGinnis also informed Mr. Mosbrucker of some clerk positions with BNSF. Doc. 61-15 at 33.

         • Mr. McGinnis authorized BNSF to pay for a custom skill class for Mr. Mosbrucker. Mr. Mosbrucker earned a certificate for PC and Windows keyboard training.

         • In 2011, Mr. Mosbrucker testified at a deposition that he could no longer do his job for fear of working in close quarters with trains. He also testified that he had been told by his doctors that he could not work outdoors.

         2012

         • Laurie Graham replaced Mr. McGinnis in 2012. Ms. Graham sent Mr. Mosbrucker a letter informing him that it was her goal to assist him in returning to work. Doc. 61-15 at 38.

         • Ms. Graham's case notes from August 9, 2012, state that she offered Mr. Mosbrucker free external vocational services to assist with resume development and training and external job placement. The notes state that he had refused these services. Ms. Graham informed Mr. Mosbrucker that when candidates apply for jobs with BNSF, BNSF selects the best candidate.

         • Ms. Graham sent Mr. Mosbrucker a letter dated October 1, 2012. It stated that she had reviewed reasonable options for Mr. Mosbrucker to return to work based on future openings at BNSF, his skills, and his physical restrictions. Doc. 61-15 at 41. She informed him that the jobs he had applied for required him to have passed either the Mechanical Aptitude Test or First Line Supervisor (“FLS”) Test, which he had not done, or that he be able to work outdoors around trains and heavy equipment. Id. She also suggested that he: (1) retake the Mechanical Aptitude Test; (2) enroll in a Microsoft Office class; or (3) broaden his employment search outside BNSF. Id.

         • During this time, Mr. Mosbrucker was still restricted from working outdoors. He also suffered from a fear of trains when they were moving at 70 mph speeds.

         • In October, Ms. Graham entered a case note documenting that Mr. Lincoln and Mr. Mosbrucker had called her in a conference call to vent about their frustrations (i.e., how they were not getting interviews, taking tests, and not getting craft transfers). Her notes confirmed that neither plaintiff wanted an outside job, that she had received their ADA letters, and that she would forward them to the appropriate people for handling.

         • Mr. Mosbrucker wrote Ms. Artzer a letter and attached an “employee request for accommodation form.” Part of the form required a Health Professional's signature. No physician signed Mr. Mosbrucker's form. Doc. 61-24 at 4.

         • Ms. Artzer testified that when a prospective BNSF employee requests an accommodation of a health condition, before the interactive process can begin, the employee must fill out a “Request for Accommodation” form, and also must have a doctor fill out a “Healthcare Provider's Certification.” BNSF does not pay doctors to fill out the certification; the employee must pay for it.

         • Mr. Mosbrucker lost his health insurance in January 2012, and remained uninsured in the years that followed. As a result, Mr. Mosbrucker filled out the healthcare forms, but he did not have a healthcare provider sign it.

         • On November 5, 2012, a month after Mr. Mosbrucker sent his formal request for accommodation, BNSF changed Mr. Mosbrucker's internal employment status from vocational rehabilitation to “estoppel status.”

         F. Applications

         Both plaintiffs applied for a number of BNSF jobs. The next two sections discuss them.

         1. ...


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