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Martin v. Union Pacific Railroad Co.

United States District Court, D. Colorado

June 5, 2018

KRIS MARTIN, Plaintiff,
v.
UNION PACIFIC RAILROAD CO., Defendant.

          ORDER DENYING DEFENDANT'S SUMMARY JUDGMENT MOTION

          William J. Martínez, Judge

         Plaintiff Kris Martin (“Martin”) sues his former employer, Defendant Union Pacific Railroad Company (“Union Pacific”), for alleged disability discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. He specifically contends that he could perform all of the necessary duties of his job in the railyard with the reasonable accommodation of knee braces, but Union Pacific allegedly refused this accommodation.

         Before the Court is Union Pacific's Motion for Summary Judgment. (ECF No. 35.) Martin filed a response. (ECF No. 39.) Curiously, Union Pacific filed no reply- meaning, among other things, Martin's “Statement of Additional Disputed Facts” stands unrebutted for summary judgment purposes. See WJM Revised Practice Standards III.E.5 & .6(b). For the reasons explained below, Union Pacific's motion is denied.

         I. LEGAL STANDARD

         Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

         II. FACTS

         The following facts are undisputed for purposes of Union Pacific's motion unless attributed to a party or a witness, or otherwise noted.

         Union Pacific hired Martin in December 2003. (ECF No. 35 at 5, ¶ 1.)[1] By April 2011, Martin was working for Union Pacific “as a Switchman in the Union Pacific Yard in Grand Junction.” (Id.) The essential job functions of a switchman are as follows:

• Get on and off stationary equipment;
• Couple and uncouple air hoses and electrical connections between cars and/or locomotives;
• Ride on moving cars by holding on to grab irons and standing on ladder steps;
• Push/pull and lift/carry up to 25 pounds (frequently); 50 pounds (occasionally); and move weights up to 84-87 pounds (rarely);
• Ability to maintain [3]-point contact (both feet and one hand or both hands and one foot) when holding on to the ladder or car;
• Must have balance and coordination to climb ladders and stairs;
• Must be able to maintain balance and coordination while climbing on ladders 12 feet or more and the stairs (occasionally);
• Walk on ballast [i.e., the crushed stone underlying railroad ties and tracks] and ground (frequently);
• Working 12 feet or more above ground (occasionally).

(Id. at 6, ¶ 8.)

         Martin has arthritis in his knees that “substantially limit[s]” his ability to walk absent an assistive device such as a cane or knee braces. (ECF No. 39 at 5, ¶ 21.) Before he began wearing knee braces in mid-2011 (discussed below), Martin used a “brake stick” both to avoid climbing onto train cars, and as an improvised cane. (Id.) A brake stick is a telescoping metal pole that allows the operator to turn train car brake wheels without climbing onto the train car. (ECF No. 35 at 11, ¶ 25.) Union Pacific encourages its employees to use brake sticks because they mostly eliminate the need to climb ladders, and thus the risk of falling from a ladder. (ECF No. 39 at 10-11, ¶¶ 20-24.)

         On January 18, 2011, Martin's appendix ruptured while he was off-duty. (ECF No. 35 at 7, ¶ 10.) Martin took a medical leave of absence to recover. (Id.) He says he returned to light duty in late February 2011. (ECF No. 39 at 3, ¶ 10.) On February 23, 2011, an unknown manager for Union Pacific referred Martin for a fitness-for-duty (“FFD”) review. (Id. at 8, ¶ 8.) The FFD examination took place on approximately March 11, 2011, and was performed by Union Pacific's associate medical director, Dr. Soo Hoo. (Id. ¶ 9.) Dr. Hoo declared Martin “medically cleared.” (Id.)

         Two or three weeks later, Martin noticed that certain managers and coworkers were observing him very closely. (Id. at 9, ¶ 10.) Among these alleged observers were Bill Malloy, the Grand Junction director of terminal operations, and Jeff Gird, an operations manager. (Id. ¶¶ 10-11; ECF No. 35 at 5-6, ¶¶ 2, 6.) Gird and Martin had known each other for many years. (ECF No. 39 at 7, ¶¶ 1-2.) Gird had long observed that Martin had difficulty walking and Gird was therefore surprised when Union Pacific hired Martin and Martin passed Union Pacific's initial medical screening. (Id. at 7-8, ¶¶ 3-4.)

         In late March or early April 2011, Malloy and Gird conferred regarding Martin and decided to send him to a second FFD review. (Id. at 9, ¶ 11.) A different physician, “Associate Medical Director Charbonneau, ” performed that FFD on April 12, 2011, and noted with apparent exasperation that Martin had already passed an FFD the previous month. (Id. ¶ 14.) Dr. Charbonneau stated that if anyone had “continuing concerns, ” a functional safety evaluation (“FSE”) should be arranged. (Id.) “A FSE is a field test where the employee performs the essential job functions . . . while being observed by his indirect supervisors and a member of [Union Pacific's] ...


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