United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S SUMMARY JUDGMENT
William J. Martínez, Judge
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.
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.
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).
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.
following facts are undisputed for purposes of Union
Pacific's motion unless attributed to a party or a
witness, or otherwise noted.
Pacific hired Martin in December 2003. (ECF No. 35 at 5,
¶ 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
• Ability to maintain -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
• Must be able to maintain balance and coordination
while climbing on ladders 12 feet or more and the stairs
• 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.)
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.)
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.”
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.)
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] ...