On February 5, 2019, the United States District Court for the District of Nebraska granted class certification to a group of Union Pacific employees alleging that Union Pacific engaged in a pattern and practice of discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C § 12101 et seq. The class contains more than 7,000 Union Pacific workers and includes: All individuals who have been or will be subject to a fitness-for-duty examination as a result of a reportable health event at any time from September 18, 2014 until the final resolution of this action. The Court also appointed Nichols Kaster, PLLP as class counsel.
By granting class certification, the Court allowed the plaintiffs to proceed as a class and then try the case in two phases. In the first phase, the jury will determine whether Union Pacific engaged in a pattern or practice of disability discrimination on a class-wide basis. In the second stage, individual hearings will take place to determine damages as to each class member.
The case alleges that Union Pacific has put numerous long-time employees out of work due to their disabilities (or perceived disabilities) even though they could perform their jobs. The Plaintiffs’ First Amended Complaint alleges that Union Pacific requires certain employees to disclose particular health events or conditions. Once an employee makes such a disclosure, Plaintiffs allege that Union Pacific removes the employee from service and conducts a so-called “Fitness-for-Duty” evaluation, but the employees allege that this evaluation does not assess whether an employee can perform the essential functions of their job.
Plaintiffs claim that the employee is not even physically evaluated, and that Union Pacific routinely disregards the opinions of treating doctors who do evaluate the employee. Instead, Plaintiffs allege that Union Pacific collects extensive medical information from the employee and conducts a “file review” of the information. Plaintiffs allege that Union Pacific then mines the medical information and disqualifies the employees from service—either by deeming them “medically disqualified” or by issuing permanent, unnecessary work restrictions that it then refuses to accommodate.
The six named plaintiffs allege that Union Pacific discriminated against them through this “Fitness-for-Duty” protocol. The plaintiffs include the following employees, all of whom were taken out of service by Union Pacific:
- An individual who has had a pacemaker for more than 20 years as a Union Pacific employee, and who had never had a work-related incident as a result;
- An individual with fully-controlled epilepsy who had never had a work related incident as a result;
- An individual who had lightheadedness on a few isolated incidents outside of work;
- An individual with a fully-controlled heart condition who never had a work-related incident;
- An individual with a fully-controlled seizure disorder; and
- An Iraq War veteran formerly diagnosed with PTSD who never had a work incident as a result.
The plaintiffs are represented by James H. Kaster, David E. Schlesinger, Robert L. Schug, Charles A. Delbridge, Neil D. Pederson, Laura A. Baures and Lindsey E. Krause of Nichols Kaster, PLLP, Anthony S. Petru of Hildebrand Mcleod & Nelson, Nicholas D. Thompson of the Moody Law Firm and Corey L. Stull of Atwood, Holsten, Brown Deaver & Spier, P.C., L.L.O.
The case is Harris et al. v. Union Pacific Railroad Company, 8:16-CV-381 (D. Neb.).