TABLE OF CONTENTS
TABLE
OF AUTHORITIES..................................... ii
STATEMENT OF INTEREST................................. 1
STATEMENT OF THE ISSUES.............................. 1
STATEMENT OF THE CASE................................. 4
A. Factual
background............................... 4
B. District
court’s decision.......................... 8
ARGUMENT............................................................ 9
I. Union
Pacific took an adverse action “on the basis of disability” because it imposed
work restrictions based on Sanders’s perceived heart condition.... 10
II. Union
Pacific regarded Sanders as disabled because it believed he had a physical
impairment and took an adverse action against him on that basis............................................................... 17
III. Union
Pacific did not establish a direct threat defense because its medical
assessment of Sanders was objectively unreasonable........................................ 23
IV. Offering
an alternative cardiovascular test would have been a reasonable accommodation
under the circumstances....................................... 27
CONCLUSION....................................................... 32
CERTIFICATE OF COMPLIANCE....................... 33
CERTIFICATE OF SERVICE................................ 34
Page(s)
Cases
Bayes v. Biomet, Inc.,
55 F.4th 643 (8th Cir. 2022).................................. 4
Bragdon v. Abbott,
524 U.S. 624 (1998)................................... 3, 24, 25
Brown v. City of Jacksonville,
711 F.3d 883 (8th Cir. 2013)......................... 11, 21
Canning v. Creighton Univ.,
995 F.3d 603 (8th Cir.), cert. denied, 142 S. Ct. 585 (2021)............................................................ 11
Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc.,
439 F.3d 894 (8th Cir. 2006)............................... 15
Davenport v. Idaho Dep’t of Env. Quality,
469 F. Supp. 2d 861 (D. Idaho 2006), withdrawn in part on reconsideration,
2007 WL 914191 (D. Idaho Mar. 23, 2007)........................................... 13
Echazabal v. Chevron USA, Inc.,
336 F.3d 1023 (9th Cir. 2003)............................. 25
EEOC v. Dolgencorp, LLC,
899 F.3d 428 (6th Cir. 2018)........................... 2, 15
EEOC v. Wal-Mart Stores, Inc.,
477 F.3d 561 (8th Cir. 2007)..................... 3, 24, 27
Feist v. Louisiana,
730 F.3d 450 (5th Cir. 2013)............................... 29
Fischer v. Minneapolis Pub. Sch.,
792 F.3d 985 (8th Cir. 2015).... 2, 18, 20, 22, 23, 29
Frilando v. N.Y.C. Transit Auth.,
463 F. Supp. 3d 501 (S.D.N.Y. 2020).................. 28
Fulbright v. Union Pac. R.R. Co.,
2022 WL 975603 (N.D. Tex. Mar. 31, 2022).. 2, 13, 14
Goeldner v. Union Pac. R.R. Co.,
2020 WL 1148584 (W.D. Mo. Mar. 9, 2020)........ 14
Hilburn v. Murata Elecs. N. Am., Inc.,
181 F.3d 1220 (11th Cir. 1999)..................... 19, 23
Hill v. Walker,
737 F.3d 1209 (8th Cir. 2013)............................. 16
Kozisek v. Cnty. of Seward,
539 F.3d 930 (8th Cir. 2008)......................... 20, 22
Lincoln v. BNSF Ry. Co.,
900 F.3d 1166 (10th Cir. 2018)........................... 19
López-López v. Robinson Sch.,
958 F.3d 96 (1st Cir. 2020).................................. 22
MacKenzie v. City & Cnty. of Denver,
414 F.3d 1266 (10th Cir. 2005)................ 18-19, 23
McCann v. Badger Mining Corp.,
965 F.3d 578 (7th Cir. 2020)............................... 11
Michael v. City of Troy Police Dep’t,
808 F.3d 304 (6th Cir. 2015)............................... 24
Morriss v. BNSF Ry. Co.,
817 F.3d 1104 (8th Cir. 2016)................... 2, 18, 20
Nall v. BNSF Ry. Co.,
917 F.3d 335 (5th Cir. 2019)............... 2, 13, 14, 24
Nyrop v. Indep. Sch. Dist. No. 11,
616 F.3d 728 (8th Cir. 2010).......................... 21-22
Oehmke v. Medtronic, Inc.,
844 F.3d 748 (8th Cir. 2016)............................... 11
Passmore v. Astrue,
533 F.3d 658 (8th Cir. 2008)............................... 22
Phillips v. Tiona,
508 F. App’x 737 (10th Cir. 2013)....................... 17
Rizzo v. Children’s World Learning Ctrs., Inc.,
84 F.3d 758 (5th Cir. 1996)............................. 2, 12
Stragapede v. City of Evanston,
865 F.3d 861 (7th Cir. 2017)............................... 25
Streu v. Dormire,
557 F.3d 960 (8th Cir. 2009)............................... 22
Taylor v. Pathmark Stores, Inc.,
177 F.3d 180 (3d Cir. 1999)................................. 20
Torgerson v. City of Rochester,
643 F.3d 1031 (8th Cir. 2011) (en banc)............. 21
Tramp v. Associated Underwriters, Inc.,
768 F.3d 793 (8th Cir. 2014)........................... 2, 18
Webner v. Titan Distrib., Inc.,
267 F.3d 828 (8th Cir. 2001)........................... 3, 30
Weekes v. JetBlue Airways Corp.,
2022 WL 4291371 (E.D.N.Y. Sept. 16, 2022). 28-29
Wisbey v. City of Lincoln,
612 F.3d 667 (8th Cir. 2010)......................... 21, 22
Statutes
42 U.S.C. § 12101..................................................... 1
42 U.S.C. § 12102.......................... 2, 3, 10,
17, 21, 29
42 U.S.C. § 12111................................... 3,
16, 24, 28
42 U.S.C. § 12112.......................... 2, 3, 11,
15, 16, 28
42 U.S.C. § 12113............................................... 3,
24
42 U.S.C. § 12116..................................................... 1
42 U.S.C. § 12117..................................................... 1
42 U.S.C. § 12205a................................................. 18
42 U.S.C. § 1981a................................................... 15
Rules and Regulations
29 C.F.R. § 1630.2............................... 2,
3, 18, 23, 25
29 C.F.R. pt. 1630, app. § 1630.11................ 3,
28, 29
Fed. R. App. P. 29..................................................... 1
Other Authorities
Pub. L. No. 110-325................................................ 21
Congress tasked the Equal Employment Opportunity
Commission (EEOC) with interpreting and enforcing Title I of the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101 et seq.
See 42 U.S.C. §§ 12116 (regulatory
authority), 12117(a) (enforcement
authority). This case presents important questions regarding the proper
interpretation of the ADA’s anti-discrimination and reasonable accommodation
provisions, the statutory definition of a perceived “disability,” and the
standard for establishing a “direct threat” affirmative defense. Because the
EEOC has a substantial interest in the proper resolution of these questions,
the agency offers its views. See Fed.
R. App. P. 29(a)(2).
A jury returned a verdict in favor of Allan Sanders on
his ADA claims for disparate treatment and failure-to-accommodate against his
former employer, Union Pacific Railroad Company. The jury likewise rejected
Union Pacific’s “direct threat” affirmative defense. Union Pacific now appeals
from the district court’s denial of its post-verdict motion for judgment as a
matter of law. The questions presented are:
1. Whether the jury could have reasonably found
that Sanders’s perceived disability was a “but for” cause of an adverse
employment action when the record reflects that Union Pacific imposed work
restrictions because it believed Sanders had a heart condition that diminished
his aerobic capacity.
Apposite authority: 42 U.S.C. § 12112(a), (b)(1);
Rizzo v. Children’s World Learning Ctrs., Inc., 84 F.3d 758 (5th Cir.
1996);
EEOC v. Dolgencorp, LLC, 899 F.3d 428 (6th Cir. 2018);
Nall v. BNSF Ry. Co., 917 F.3d 335 (5th Cir. 2019);
Fulbright v. Union Pac. R.R. Co., 2022 WL 975603 (N.D. Tex. Mar. 31,
2022).
2. Whether the jury could have reasonably found
that Union Pacific regarded Sanders as having a disability because it believed he
had a physical impairment—namely, a heart condition—and took an adverse action
against him on that basis.
Apposite authority: 42 U.S.C. § 12102(1)(C), (3)(A);
29 C.F.R. § 1630.2(h)(1);
Fischer v. Minneapolis Pub. Sch., 792 F.3d 985 (8th Cir. 2015);
Morriss v. BNSF Ry. Co., 817 F.3d 1104 (8th Cir. 2016);
Tramp v. Associated Underwriters, Inc., 768 F.3d 793 (8th Cir. 2014).
3. Whether the jury could have reasonably found
that Union Pacific did not establish a direct threat defense based on the best
available objective medical evidence when several physicians testified that Union
Pacific’s medical assessment was based on unreliable test results.
Apposite authority: 42 U.S.C. § 12113(b);
29 C.F.R. § 1630.2(r); Bragdon v. Abbott, 524 U.S. 624 (1998);
EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561 (8th Cir. 2007).
4. Whether the jury could have reasonably found
that offering an alternative cardiovascular test would have been a reasonable
accommodation for Sanders’s knee osteoarthritis—an actual disability—when the treadmill
test Union Pacific used did not accurately reflect Sanders’s cardiovascular
health, while other tests could.
Apposite authority: 42 U.S.C. § 12102(1)(A),
(2)(A); 42 U.S.C. § 12111(9)(B);
42 U.S.C. § 12112(b)(5)(A), (b)(7); 29 C.F.R. pt. 1630, app. § 1630.11;
Webner v. Titan Distrib., Inc., 267 F.3d 828 (8th Cir. 2001).
Sanders began working for Union Pacific in 1979. App.
0391, R. Doc. 118 at 15.
Sanders held various positions and most recently worked as a Foreman General. App. 0391,
R. Doc. 118 at 15. In that role, Sanders oversaw the inspection and repair of train
cars in distress. App. 648-50, R. Doc. 163 at 146-48.
In June 2018, Sanders began experiencing shortness of
breath at home and took an ambulance to the hospital. App. 0391, R. Doc. 118 at
15; App. 0658-59, R. Doc. 163 at 156-57. There, doctors discovered that Sanders
had internal bleeding (a bleeding ulcer), which required emergency surgery. App.
0391, R. Doc. 118 at 15; App. 0909-10, R. Doc. 164 at 209-10.
Before the surgery, blood loss caused Sanders’s blood count to drop and his
heart to stop. App. 0909, 0914, R. Doc. 164 at 209, 214. After Sanders’s medical
team resuscitated him, they rushed him into surgery to stop the bleeding. App.
0909, R. Doc. 164 at 209. The operation was successful, and Sanders fully
recovered. App. 0910, R. Doc. 164 at 210.
Given these events, Union Pacific required Sanders to undergo
a fitness-for-duty evaluation before returning to work. App. 0391, R.
Doc. 118 at 15. Dr. John Charbonneau, Union Pacific’s Associate
Medical Director (an in-house physician), oversaw the evaluation, although he
never personally examined Sanders. App. 0855, R. Doc. 164 at 155.
At Dr. Charbonneau’s request, Sanders provided
numerous medical records to Union Pacific. App.0897-0901, R. Doc. 164 at 197-201;
App. 0664-666, R. Doc. 163 at 162-64. The records confirmed that Sanders was
fit to work, and several physicians cleared him to return to work without
restriction: this included Dr. Charles Ro (Sanders’s surgeon), Dr. Nadine
Aboul-Madg (Sanders’s nephrologist), and Dr. Jimmy Buller (Sanders’s primary
care physician).
P-EX 1 (Dr. Ro’s work-release letter); P-EX 2 (work release from
Dr. Abdoul-Madg’s office); P-EX 3 (Dr. Ro’s medical progress
report clearing Sanders to return to work); P-EX 13 (Dr. Buller’s
work-release letter); App. 0659-63, R. Doc. 163 at 157-61 (Sanders discussing
return-to-work releases). At trial, Dr. Ro and Dr. Buller reaffirmed
that Sanders was fit to work without restriction, and Sanders’s medical expert,
Dr. Kevin Trangle, and cardiologist, Dr. William Nicholas, concurred
with those findings. App. 0910-14, R. Doc. 164 at 210-14 (Dr. Ro); App.
1007-10, R. Doc. 165 at 59-62 (Dr. Buller); P-EX 30 at 12-14
(Dr. Nicholas); App. 0777-79, R. Doc. 164 at 77-79 (Dr. Trangle).
Despite those favorable medical evaluations, Dr. Charbonneau
remained concerned about one issue: the condition of Sanders’s heart. App.
0391, R. Doc. 118 at 15. Consequently, Dr. Charbonneau ordered a “Bruce
Protocol” treadmill test, which measures cardiovascular health. App. 0996,
R.165 at 48; App. 0923-26, R. Doc. 164 at 223-26. As requested, Sanders took
the test at his cardiologist’s office, but the “exercise test was stopped due
to Fatigue.” App. 0928, R. Doc. 164 at 228; D-EX 113. Though Union Pacific
disputes it, UP Br. at 24, Sanders claimed he explained to Dr. Charbonneau
that he could not complete the test because he was experiencing knee pain and
asked whether he could take an alternative, such as a bicycle test. App.
0666-67, R. Doc. 163 at 164-65; App. 0732, R. Doc. 164 at 32; see also
P-EX 22.
Dr. Charbonneau refused and, based on the treadmill-test
results, concluded that Sanders had “limited aerobic capacity or cardiac
functional capacity.” App. 0958, R. Doc. 165 at 10; see also App. 0873,
0928-30, 0937-38, R. Doc. 164 at 173, 228-30, 237-38. As a result, Dr. Charbonneau
imposed work restrictions that prevented Sanders from performing more than
light physical exertion or prolonged work in excessive heat or cold. App. 0392,
R. Doc. 118 at 16; P-EX 16. Under those restrictions, Sanders was unable
to return to work.
Sanders filed this ADA action, which proceeded to trial
on his failure-to-accommodate and disparate treatment claims. The jury returned
a verdict in Sanders’s favor on both claims, rejecting Union Pacific’s direct
threat defense. App. 0339-41, R. Doc. 114 at 1-3.
After the verdict, Union Pacific renewed its motion for
judgment as a matter of law. App. 0427-29, R. Doc. 124 at 1-3. The district
court denied the motion. As relevant here, the district court determined that
sufficient evidence allowed the jury to find that: (i) Sanders was disabled
within the meaning of the ADA because he had an actual disability, he had a
record of a disability, and Union Pacific regarded him as disabled; (ii) Union
Pacific “intentionally discriminated against Sanders by unreasonably imposing a
Bruce-protocol treadmill test requirement on Sanders and then misinterpreting
the incomplete and unreliable Bruce-protocol results”; and (iii) Union Pacific
did not establish that Sanders posed a significant risk of substantial harm to
the health or safety of himself or others that could not be eliminated or
reduced by reasonable accommodation. Add. 010-12 (R. Doc. 172 at 5-7).
The district court also determined the “evidence in the
record establishes that Sanders did request an accommodation.” Add. 011 (R.
Doc. 172 at 6). Specifically, “Sanders testified that he asked Dr. Charbonneau
to let him take an alternative to the treadmill test, but Dr. Charbonneau
refused.” Add. 011 (R. Doc. 172 at 6.)
Union Pacific appealed, App. 1453-55, R. Doc. 180 at 1-3,
and now contends that it was entitled to judgment as a matter of law on
Sanders’s disparate treatment and failure-to-accommodate claims, as well as its
direct threat defense.
Union Pacific maintains that, because the company relied
on Dr. Charbonneau’s medical opinion when it issued work restrictions, the
company cannot be liable for disability discrimination as a matter of law. Specifically,
Union Pacific argues that its reliance on Dr. Charbonneau’s opinion
precludes a finding that the company engaged in intentional discrimination,
shows that the company did not regard Sanders as having a disability,
and establishes a direct threat defense. Union Pacific also argues that an
alternative employment test categorically cannot be a reasonable accommodation.
These arguments are unavailing. Under a correct
understanding of the ADA’s text and this Court’s precedents—and viewing the
facts in the light most favorable to the verdict, supra n.2—Union
Pacific cannot establish that no reasonable jury could find in Sanders’s favor
on these issues.
Union Pacific argues that no reasonable jury could find
that it engaged in intentional discrimination—here, disparate
treatment—because no evidence showed the company or Dr. Charbonneau were
motivated by a “discriminatory attitude” or “discriminatory animus” when they
issued work restrictions. See UP Br. at 29-34, 44-47. But the statutory
text does not require such a showing.
The ADA prohibits discrimination “on the basis of
disability,” which includes limiting an employee in ways that adversely affect
his opportunities or status “because of [his] disability.” 42 U.S.C. § 12112(a),
(b)(1). As this Court has recognized, the ADA thus requires a plaintiff to
establish a “causal link” between his disability and an adverse action. Brown
v. City of Jacksonville, 711 F.3d 883, 889 (8th Cir. 2013).
The district court determined—and the parties agreed—that it requires “but for”
causation.
See UP Br. at 31 n.5; App. 0320, R. Doc. 99 at 11; App. 0473, R. Doc.
151 at 33. Accordingly, the district court instructed the jury that Sanders had
to prove his “disability was the ‘but-for’ cause … of [Union Pacific’s] refusal
to allow [him] to return to duty.” App. 0394, R. Doc. 118 at 18. The district court
clarified that a disability “is a ‘but for’ cause of an employment decision if
the employment decision would not have occurred without it,” and that “‘[b]ut
for’ causation does not require that disability was the only reason for the
decision.” App. 0395, R. Doc. 118 at 19.
Here, the record contains direct evidence that Union
Pacific made an adverse employment decision “on the basis of” Sanders’s perceived
disability and that the company would not have taken the same action “but for”
his disability. Indeed, there appears to be little dispute that Union Pacific imposed
work restrictions precisely because Dr. Charbonneau believed
Sanders had a heart condition that diminished his aerobic capacity. UP Br. at
19-20; App. 0958, 0987, 0990, R. Doc. 165 at 10, 39, 42. That is enough to
establish a causal link between Sanders’s disability and an adverse employment
action without any inferences. See Rizzo v. Children’s World Learning Ctrs.,
Inc., 84 F.3d 758, 762 (5th Cir. 1996) (where employer “does not deny that
[plaintiff] was removed from driving duties because of her hearing impairment,”
employer “admits that it discriminated” and the court “need not engage in the McDonnell
Douglas presumptions in order to infer discrimination”); Davenport v.
Idaho Dep’t of Env. Quality, 469 F. Supp. 2d 861, 877 (D. Idaho
2006) (causation element satisfied where “it is undisputed that [work]
restrictions were put in place because of Plaintiff’s diabetes”), withdrawn
in part on reconsideration on other grounds, 2007 WL 914191 (D. Idaho Mar.
23, 2007);
Fulbright v. Union Pac. R.R. Co., 2022 WL 975603, at *7 (N.D. Tex. Mar.
31, 2022) (employer’s imposition of work restrictions based on plaintiff’s
sleep disorder is direct evidence of discrimination).
To be sure, Union Pacific maintains that it imposed work
restrictions because it believed Sanders’s heart condition posed a danger to himself
and others. But that argument goes to Union Pacific’s direct threat affirmative
defense. And as one judge in the Fifth Circuit explains, “[a]n employer cannot
have it both ways by arguing that [an adverse action] was justified because the
disability was dangerous while also maintaining that the safety-threatening
disability was not the reason for the [adverse action].” Nall v. BNSF Ry.
Co., 917 F.3d 335, 350 (5th Cir. 2019) (Costa, J., specially concurring).
Instead, “[w]hen a concern about the disability’s negative impact on workplace
safety is the reason for the adverse action, the ‘causation’ element of an ADA
discrimination claim should be straightforward.” Id.
In short, on the record here, the jury could have reasonably
found that Union Pacific took an adverse action against Sanders “on the basis
of” his disability by imposing restrictions that prevented him from working. See
Goeldner v. Union Pac. R.R. Co., 2020 WL 1148584, at *6 (W.D. Mo. Mar. 9,
2020) (plaintiff’s
allegation that “Union Pacific discriminated against him on the basis of his
disability by issuing permanent work restrictions on him preventing him from
working, despite his ability to perform the essential functions of his work,”
was “sufficient to draw an inference that Union Pacific would be liable for
claim of disparate treatment”); Fulbright, 2022 WL 975603, at *6 (reasonable jury could find that Union Pacific discriminated against plaintiff by
“impos[ing] work restrictions that caused [him] to lose his job”).
Union Pacific sees things differently. In its view,
Sanders had to also show that the company or Dr. Charbonneau was motivated
by disability-related animus: a prejudice against people with disabilities or,
at least, with heart conditions. UP Br. at 26, 29-34. But the ADA contains no
such mens rea requirement. As the Sixth Circuit recently observed, the statute
“speaks in terms of causation, not animus.” EEOC v. Dolgencorp, LLC, 899
F.3d 428, 436 (6th Cir. 2018). Thus, while evidence that an employer was
motivated by animus might be sufficient to establish causation, it is not
required for liability under the ADA.
Instead, the Sixth Circuit explained, under the statute’s plain language, “[a]n
employer violates the [ADA] whenever it” takes an adverse action against “an
employee ‘on the basis of disability’ (a necessary requirement for liability),
not only when it harbors ill will (a sufficient way of establishing
liability).” Id. (quoting 42 U.S.C. § 12112(a)).
For example, if an employer “fired a visually impaired
employee to save itself the minimal expense of buying special software for
her,” that “would constitute termination ‘on the basis of disability,’ even if
all of the evidence showed that cost-savings, not animus towards the blind,
motivated the company.” Id. Here too, imposing work restrictions based
on Sanders’s heart condition is an adverse action “on the basis of disability”
even if safety concerns, not animus, motivated Union Pacific.
None of this is to suggest that an employer is
automatically liable for disability discrimination anytime it imposes
safety-related work restrictions. See UP Br. at 32-34. To succeed on a
discrimination claim, a plaintiff still must prove that he had a disability as
defined by the ADA and that he was a qualified individual (i.e., that he can
perform the essential functions of his job with or without reasonable accommodation).
See 42 U.S.C. §§ 12111(8), 12112(a);
Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013) (articulating
elements of disability discrimination claim). And, of course, the direct threat
and other affirmative defenses remain available to employers. But those
defenses do not diminish the fact that an employer who imposes work
restrictions because of an employee’s disability necessarily takes an adverse
action “on the basis of” that disability. To hold otherwise would render the
ADA’s affirmative defenses mere nullities.
Union Pacific next argues that because it relied on Dr. Charbonneau’s
medical opinion about Sanders’s condition (rather than “myths” or “stereotypes”
about disabilities), no reasonable jury could find that the company regarded
Sanders as having a disability. UP Br. at 37-40. The statutory text contradicts
that argument.
The regarded-as prong provides that an individual has a
disability if he is “regarded as having … an impairment.” 42 U.S.C. § 12102(1)(C). In 2008, Congress amended the ADA to “expand the definition and construction of
what constitutes a disability.” Phillips v. Tiona, 508 F. App’x
737, 747 n.5 (10th Cir. 2013).
As pertinent here, the 2008 amendments modified the standard for regarded-as
claims. The amended statute provides that a plaintiff may establish disability
under the regarded-as prong by showing that he “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.” 42 U.S.C. § 12102(3)(A);
see also Tramp v. Associated Underwriters, Inc., 768 F.3d 793, 805 (8th
Cir. 2014) (articulating amended standard).
In turn, EEOC regulations define a “physical impairment”
as “[a]ny physiological disorder or condition … affecting one or more body
systems,” including “cardiovascular.” 29 C.F.R. § 1630.2(h)(1);
see also Morriss v. BNSF Ry. Co., 817 F.3d
1104, 1108 (8th Cir. 2016) (discussing regulatory definition of “impairment”);
42 U.S.C. § 12205a (authorizing
the EEOC to issue regulations “implementing the definitions of disability” in
the 2008 amendments). Thus, to establish a disability under the regarded-as
prong, Sanders had to show only that Union Pacific perceived him as having a
physical impairment and “subjected him to an adverse action” on that basis. Fischer
v. Minneapolis Pub. Sch., 792 F.3d 985, 988 (8th Cir. 2015).
Here, Union Pacific does not appear to dispute that it
perceived Sanders as having a physical impairment, namely, a physiological
condition affecting his cardiovascular system. See UP Br. at 14
(discussing Sanders’s “multiple cardiovascular problems”); id. at 16
(arguing that Sanders’s “heart disease” presented health-related risks); cf.
MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1275 (10th Cir.
2005) (where
employer “does not dispute [employee] has a heart condition,” a “jury could
reasonably conclude, even without expert medical testimony, that [employee] had
a condition affecting the cardiovascular system constituting a physical
impairment under the ADA”), abrogated on other grounds by Lincoln v. BNSF
Ry. Co., 900 F.3d 1166 (10th Cir. 2018);
Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1227 (11th Cir.
1999) (“There
is no question that heart disease constitutes a physical impairment under the
ADA.”).
Nor does Union Pacific appear to dispute that it imposed
work restrictions based on Dr. Charbonneau’s opinion that Sanders’s
“cardiovascular evaluation showed that he had limited aerobic capacity or
cardiac functional capacity.” App. 0958, R. Doc. 165 at 10; see also UP
Br. at 19 (“Dr. Charbonneau assigned the restrictions because of the
demonstrated functional capacity on that first Bruce Protocol test.”)
(quotation marks omitted).
As a result, the jury could have reasonably found that Union
Pacific both perceived Sanders as having a physical impairment and took an
adverse action against him on that basis. That is enough to establish a
disability under the regarded-as prong. See Fischer, 792 F.3d at 988.
In urging a contrary result, Union Pacific relies on Kozisek
v. County of Seward, 539 F.3d 930 (8th Cir. 2008).
Citing the ADA’s goal to combat “archaic attitudes, erroneous perceptions, and
myths” about disabilities, Kozisek held that if an employer imposes work
restrictions “based upon the recommendations of physicians, then it is not
based upon myths or stereotypes about the disabled and does not establish a
perception of disability.” Id. at 935 (quotation marks and citation
omitted). Once again, however, the ADA’s text contains no such limitation—it
never has. See Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 191 (3d
Cir. 1999) (“[W]hether
or not [an employer] was motivated by myth, fear or prejudice is not
determinative of [the employee’s] ‘regarded as’ claim.”) (citation omitted).
In any event, Kozisek and the case law on which
it relied predated the 2008 amendments. Those amendments not only expanded the
definition of disability, they also overruled and abrogated prior case law that
narrowly construed the term. See Morriss, 817 F.3d at 1110 (“Congress intended that the [2008 amendments] abrogate certain Supreme Court rulings
that improperly ‘narrowed the broad scope of protection ... originally intended
under the ADA.’”) (citation omitted); Pub. L. No. 110-325 § 2(b)(3) (rejecting court decisions that narrowed “coverage under the third prong of the
definition of disability”). And in amending the statute, Congress made plain
that “[t]he definition of disability … shall be construed in favor of broad
coverage of individuals.” Pub. L. No. 110-325 § 4(a) (codified
at 42 U.S.C. § 12102(4)(A)); see also Brown, 711 F.3d at 889 (explaining that “more restrictive requirements appli[ed] to pre-amendment ADA
[regarded-as] claims,” in contrast to post-amendment regarded-as claims).
In one decision issued after the 2008 amendments, this
Court applied its prior holding that an employer does not regard an employee as
disabled if the employer imposes work restrictions based on a physician opinion
rather than myths or stereotypes. See Wisbey v. City of Lincoln, 612
F.3d 667, 672-73 (8th Cir. 2010),
abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d
1031 (8th Cir. 2011) (en banc).
But the conduct in that case took place in 2007, id. at 669-71, before the 2008 amendments took effect. See Pub. L. No. 110-325 § 8 (amendments “shall become effective on January 1, 2009”); Nyrop v. Indep. Sch.
Dist. No. 11, 616 F.3d 728, 734 n.4 (8th Cir. 2010) (ADA’s
2008 amendments are not retroactive and do not apply to conduct occurring
before effective date).
Simply put, Kozisek, Wisbey, and their predecessors are stale
law. The EEOC urges this Court to take this opportunity to clarify as much.
Union Pacific also suggests—citing Fischer—that
Dr. Charbonneau’s reliance on Sanders’s treadmill-test results, rather
than myths or stereotypes, also precludes a finding that he regarded Sanders as
disabled. UP Br. at 39. But Fischer is distinguishable. There, this
Court reasoned that an employee’s poor performance on a strength test did not
necessarily show that his employer regarded him as having an impairment, an
essential element of a regarded-as disability claim, because the employer’s
belief that the plaintiff lacked the strength to perform “medium-heavy” work
was “not equivalent to a belief that [the employee] suffered a physical
impairment such as a physiological disorder, cosmetic disfigurement,
anatomical loss, or disease.” Fischer, 792 F.3d at 989 (emphasis added). After all, one can lack strength without an impairment.
Here, by contrast, there is evidence that Dr. Charbonneau
believed Sanders’s performance on the treadmill test resulted from his heart
condition. App. 0958, R. Doc. 165 at 10. And, as explained above, a belief that
an employee has a heart condition is equivalent to a belief that the
employee has a physical impairment. See 29 C.F.R.
§ 1630.2(h)(1); MacKenzie, 414 F.3d at 1275;
Hilburn, 181 F.3d at 1227.
Union Pacific also argues that its reliance on Dr. Charbonneau’s
opinion was enough to establish a direct threat defense. Union Pacific is
mistaken.
The ADA provides a defense if an employee’s disability
poses a “direct threat” to other individuals in the workplace. 42 U.S.C.
§ 12113(b). The statute defines a “direct threat” as “a significant risk
to the health or safety of others that cannot be eliminated by reasonable
accommodation.” 42 U.S.C. § 12111(3).
The direct threat defense is an affirmative defense, and “the employer bears
the burden of proof.” EEOC v. Wal-Mart Stores, Inc.,
477 F.3d 561, 571 (8th Cir. 2007).
The touchstone of the direct threat defense is objective
reasonableness. “Whether an employer has properly determined that a person
poses a direct threat depends on the objective reasonableness of the employer’s
actions,” Nall, 917 F.3d at 342 (cleaned up) (citation omitted), and
when an employer’s determination is based on a physician’s medical opinion, the
relevant inquiry is whether that opinion was “itself objectively reasonable,” Michael
v. City of Troy Police Dep’t, 808 F.3d 304, 307 (6th Cir. 2015).
As the Supreme Court has held, “courts should assess the objective
reasonableness of the views of health care professionals without deferring to
their individual judgments.” Bragdon v. Abbott, 524 U.S. 624, 650 (1998). To this end, determining whether an employee poses a direct threat requires an
“individualized assessment,” which must be “based on a reasonable medical
judgment that relies on the most current medical knowledge and/or on the best
available objective evidence.” 29 C.F.R. § 1630.2(r).
It bears emphasis that an employer’s subjective beliefs
about the existence of a direct threat, even when supported by a medical
opinion, are neither dispositive nor entitled to deference. As the Supreme
Court has explained, because the direct threat assessment “must be based on
medical or other objective evidence,” an employer’s “belief that a significant
risk existed, even if maintained in good faith, would not relieve [it] from
liability.” Bragdon, 524 U.S. at 649. And a decisionmaker “receives no
special deference simply because he is a health care professional.” Id.; see also Stragapede v. City of Evanston, 865 F.3d 861, 867 (7th Cir.
2017) (“The
[employer’s] primary argument is that it does not matter whether [the employee]
actually posed a direct threat to health or safety; it’s enough that the City thought
he was a direct threat. The Supreme Court disagrees[.]”); 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.”).
Here, there was ample evidence from which the jury could
have found that Dr. Charbonneau’s opinion about Sanders’s heart condition
was neither objectively reasonable nor based on the best available objective
evidence. Dr. Charbonneau testified that he issued work restrictions
because of Sanders’s performance on the treadmill test. App. 0872, 0938, R.
Doc. 164 at 172, 238. Yet Sanders’s physicians and medical expert repeatedly
opined that it was unreasonable for Dr. Charbonneau to base his opinion on
those test results because they were unreliable.
Sanders’s medical expert, Dr. Trangle, testified
that the test results were invalid because Sanders’s knee pain prevented him
from completing the test and because Sanders was taking prescription medication
at the time. App. 0769-75, R. Doc. 164 at 69-75; see also P-EX 30 at
10-11. Sanders’s primary care physician, Dr. Buller, similarly testified
that he “wasn’t concerned” about the treadmill-test results because the test
“wasn’t stopped for cardiac or pulmonary issues,” but because of “a physical
issue,” namely, Sanders’s knees. App. 1009, R. Doc. 165 at 61. Sanders’s
cardiologist, Dr. Nicholas, whose office conducted the treadmill test,
likewise confirmed that the test was stopped due to “fatigue,” which he
explained meant the test was stopped for reasons unrelated to Sanders’s heart. P-EX
30 at 9. Given these problems, Dr. Trangle concluded that Dr. Charbonneau’s
assessment of Sanders was not only “very flawed,” it was “shameful.” App. 0779,
R. Doc. 164 at 79.
Given that testimony, the jury could have reasonably found
that Union Pacific did not meet its burden to show that Sanders was a direct
threat based on the best available objective medical evidence. See Wal-Mart
Stores, 477 F.3d at 572 (reversing grant of summary judgment on direct
threat defense where employer “failed to prove that [the employee] … would pose
a direct threat to the safety of himself or others”).
Union Pacific also contends that offering an alternative
test cannot be a reasonable accommodation and that the district court erred by
instructing the jury otherwise. UP Br. at 65. That argument is at odds with the
statutory text.
The ADA imposes an affirmative obligation on employers
to make reasonable accommodations for employees with disabilities absent undue
hardship. 42 U.S.C. § 12112(b)(5)(A).
The statute provides that the term “reasonable accommodation” may include
“appropriate adjustment or modifications of examinations.” 42 U.S.C.
§ 12111(9)(B). The ADA further requires employers to “select and
administer tests concerning employment” in ways that “accurately reflect” the
skills or aptitude the tests “purport[] to measure,” as opposed to reflecting
the employee’s “impaired sensory, manual, or speaking skills.” 42 U.S.C.
§ 12112(b)(7). Together, these provisions “emphasize that individuals with
disabilities are not to be excluded from jobs that they can actually perform
merely because a disability prevents them from taking a test, or negatively
influences the results of a test, that is a prerequisite to the job.”
29 C.F.R. pt. 1630, app. § 1630.11;
see also Frilando v. N.Y.C. Transit Auth., 463 F. Supp. 3d 501, 516
(S.D.N.Y. 2020) (discussing
testing accommodations).
Critically, these statutory provisions may require
employers to offer different or alternative employment tests as reasonable
accommodations under some circumstances. See, e.g., Weekes v. JetBlue
Airways Corp., 2022 WL 4291371, at *14 (E.D.N.Y. Sept. 16, 2022) (plaintiff’s
requests to take “different [breathalyzer] test” to account for asthma were
“requests for reasonable accommodation”). For example, if an employer usually
administers a written employment test but an employee is unable to read due to
dyslexia, then the employer may have to administer an “alternative oral test”
as an accommodation. 29 C.F.R. pt. 1630, app. § 1630.11.
Here, the jury heard evidence that the treadmill test
did not accurately reflect Sanders’s cardiovascular health (which the test
purported to measure) because his knee impairment
and other factors unrelated to his heart prevented him from completing the test
or negatively influenced the results. As explained above, Sanders testified
that he was unable to complete the test because his knees began hurting, not
because of his heart. App. 0666-67, R. Doc. 163 at 164-65. Sanders’s physicians
and medical expert likewise testified that his treadmill-test results were
unreliable because his knee condition prevented him from completing the test
and because he was on prescription medication. See App. 0769-75, R. Doc.
164 at 69-75 (Dr. Trangle); App. 1009, R. Doc. 165 at 61
(Dr. Buller); P-EX 30 at 9-11 (Dr. Nicholas).
The jury also heard evidence that alternative tests
could have accurately measured Sanders’s cardiovascular health, unaffected by
his knee impairment, and would have shown that his heart was healthy.
Dr. Trangle testified that a bicycle test would have measured Sanders’s
cardiovascular condition, just like the treadmill test, while imposing less
stress on his knee. App. 0773-74, R. Doc. 164 at 73-74. Dr. Trangle further
explained that the bicycle test is often offered as an alternative to treadmill
tests for patients with knee, foot, or hip problems, and referred to bicycle
and treadmill tests as “equivalent.” App. 0773-74, 0815-16, R. Doc. 164 at
73-74, 115-16.
Additionally, Sanders’s cardiologist, Dr. Nicholas,
administered a chemical stress test, which likewise measures heart function. App.
0775-76, R. Doc. 164 at 75-76. Both Dr. Nicholas and Dr. Trangle
concluded that Sanders’s chemical test results demonstrated good heart health,
and that Sanders was fully capable of working from a cardiovascular
perspective. App. 0776-78, R. Doc. 164 at 76-78; P-EX 30 at 12-14. Sanders’s
other physicians offered similar testimony. App.1008-09, R. Doc. 165 at 60-61
(Dr. Buller); App. 0913-14, R. Doc. 164 at 213-14 (Dr. Ro).
Based on the foregoing evidence, the jury could have reasonably
found that Sanders’s treadmill-test results reflected his knee impairment
rather than his cardiovascular condition. By the same token, and based on the
same evidence, the jury could have reasonably found that an alternative test
could have accurately reflected Sanders’s cardiovascular condition. Accordingly,
the jury could have reasonably concluded that an alternative test was a
reasonable accommodation under the circumstances.
For the foregoing reasons, this Court should affirm the
verdict and the district court’s decision regarding the issues discussed above.
Respectfully submitted,
GWENDOLYN YOUNG REAMS
Acting General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
DARA S. SMITH
Assistant General Counsel
/s/ Steven Winkelman
STEVEN WINKELMAN
Attorney
Equal Employment Opportunity Commission
Office of General Counsel
131 M Street NE, Fifth Floor
Washington, DC 20507
(202) 921-2564
steven.winkelman@eeoc.gov
April 4, 2023
I certify that the foregoing brief complies with the
type-volume requirements of Federal Rules of Appellate Procedure 29(a)(5) and
32(a)(7)(B) because it contains 6,279 words, excluding the parts of the brief
exempted by Federal Rule of Appellate Procedure 32(f).
This brief also complies with the typeface and type-style
requirements of Federal Rules of Appellate Procedure 32(a)(5) and 32(a)(6)
because it was prepared in a proportionally spaced typeface using Microsoft
Word in 14-point Century Schoolbook font.
Pursuant to Eighth Circuit Local Rule 28A(h)(2), the
electronic version of this brief was scanned for viruses with Microsoft Windows
Defender and is virus-free according to that program.
/s/ Steven Winkelman
STEVEN WINKELMAN
Attorney
April 4, 2023
I certify that on April 4, 2023, a copy of the foregoing brief was
electronically filed using the Court’s CM/ECF system, which will result in
service on all counsel of record.
I further certify
that, as required by Eighth Circuit Local Rule 28A(d), ten paper copies of
the foregoing brief will be filed with the Court and one paper copy of the
foregoing brief will be served on each party.
/s/ Steven Winkelman
STEVEN WINKELMAN
Attorney
April 4, 2023
