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Feltman v. BNSF Railway Co. Inc.

United States District Court, N.D. Alabama, Southern Division

January 24, 2018



          John E. Ott Chief United States Magistrate Judge

         This is a disability discrimination case. Plaintiff Bernie Feltman alleges that defendant BNSF Railway Company, Inc. violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., when it withdrew an employment offer after learning that he has a partially amputated right foot. He alleges that BNSF is liable under the ADA for discriminating against him on the basis of an actual disability and the perception of a disability. The case is now before the court on BNSF's motion for summary judgment. (Doc.[1] 13). The motion has been fully briefed by the parties. Upon consideration, the motion will be granted.


         Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment 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). The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, ” relying on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Once the moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324.

         At summary judgment, a court views the evidence in the light most favorable to the non-movant. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). The court must credit the evidence of the non-movant and draw all justifiable inferences in the non-movant's favor. Id. Inferences in favor of the non-movant are not unqualified, however. “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). At summary judgment, “the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         FACTS [2]

         During the summer of 1974, Feltman injured his right foot in an accident on a construction site. As a result of the accident, the toes and adjoining area of his right foot were amputated. He has worn a prosthesis ever since.

         On May 21, 2014, Feltman submitted an online application for a Conductor Trainee position with BNSF. BNSF operates a railroad network covering the western two-thirds of the United States. Conductors are in charge of operating the trains, which includes addressing problems that may arise during a train trip and ensuring that trains move safely and efficiently.

         BNSF's Conductor Trainee application includes a “Voluntary Self-Identification of Disability” form for applicants to complete if they voluntarily choose to do so. (Doc. 15-2 at 72). The form identifies “[m]issing limbs or partially missing limbs” as a type of disability. (Id. at 73). Feltman elected not to complete the form and did not disclose his partially amputated right foot as a disability.

         After receiving Feltman's application, BNSF invited Feltman to a “job preview and interview session” held in Birmingham, Alabama, on July 2, 2014. During the job preview session, BNSF's Director of Human Resources delivered a presentation on the requirements of the Conductor position and described the hiring process for applicants who were selected for a conditional employment offer. He advised the applicants that, if selected, they would be subject to a medical review process, which includes completing a medical questionnaire and undergoing a physical capabilities test.

         On July 8, 2014, BNSF conditionally offered Feltman a position in its Conductor Trainee training session beginning September 29, 2014, in Birmingham. The training session is mandatory for all BNSF Conductors and lasts up to seventeen weeks including both classroom and on-the-road training. The job description for the Conductor Trainee position includes the “basic qualifications” of “[ability] to work on uneven surfaces; frequently climb ladders and get on/off equipment; [and] work at various heights above the ground including on top of locomotives, railcars and other equipment.” (Doc. 15-1 at 97). Feltman's offer was contingent on his successful completion of a “pre-employment screening consisting of … receipt and review of a completed BNSF medical questionnaire, physical examinations, hair analysis drug screen, [and] background investigation ….” (Id. at 95). Feltman accepted the conditional employment offer on July 9, 2014.

         The BNSF screening process commences directly after the offeree's acceptance of the conditional offer. The process begins with the offeree's completion of an on-line medical questionnaire, which asks questions regarding the offeree's current and past medical conditions. The purpose of the questionnaire is to identify any conditions that require further investigation to determine whether the offeree can safely perform the essential functions of the position with or without accommodation.

         Feltman completed and submitted his on-line medical questionnaire on July 9, 2014. He answered “No” to the following questions:

2. Have you had any of the following that caused you to miss work/school for more than 2 days . . .
a. Illness or injury,
b. Hospitalization,
c. Surgery
20. Have your work tasks or daily activities ever been interfered with by pain, swelling, or soreness in your . . .
m. Feet
22. Do you currently or have you ever had any of the following musculoskeletal problems . . .
a. Weakness in any of your arms, hands, legs or feet …

(Doc. 15-1 at 101-104). Feltman contends that he answered these questions truthfully, because the loss of his right toes in the summer of 1974 did not interfere with his daily work tasks and he did not suffer weakness in his foot as a consequence of the injury. (Doc. 16 at 5). BNSF disagrees, and points to Feltman's admissions at his deposition that he did experience weakness in his foot following the accident and that his injury did interfere with his daily tasks that summer. (Doc. 14 at 9-10).

         Feltman's medical questionnaire was reviewed by Eileen Henderson, a nurse who works for Comprehensive Health Services (“CHS”), a third-party contractor that performs initial medical reviews for BNSF. Nurse Henderson spoke with Feltman by phone and asked him questions regarding the conditions he had identified in the questionnaire. According to Nurse Henderson's notes from the conversation, Feltman denied having any medical or musculoskeletal issues other than the ones he had identified in the questionnaire. (Doc. 15-3 at 19). Feltman also informed Nurse Henderson that he currently worked as a letter carrier and walked 3 miles, 3 to 5 times a week. (Id.)

         On July 17, 2014, Feltman participated in a physical capabilities test at Thomasville Physical Therapy. Feltman met the qualifications for strength and range of motion in his knees and shoulders. The physical capabilities test did not include an examination of Feltman's feet.

         Feltman then visited Prime Care Occupational Medicine (“Prime Care”) for a medical screening exam. His vital signs, vision, hearing, and urine were all tested and were all within normal limits. The screening did not include a foot examination, although Feltman was required to remove his shoes when his weight was checked. Based on Feltman's test results, BNSF Nurse Charlene Coleman certified that he met the minimum requirements for vision and hearing under the Federal Railroad Administration regulations.[3]

         On August 4, 2014, BNSF notified Feltman by email that he had “completed the necessary steps in the medical evaluation” and was “currently medically qualified” for the Conductor Trainee position. (Doc. 15-1 at 116).

         On September 7, 2014, BNSF informed Feltman by email that he had “met the requirements of the pre-employment screening process for the Conductor Trainee” position in Birmingham. (Doc. 15-1 at 115). He was instructed to report on September 29, 2014, to begin his training. (Id.) He was also advised:

If any information you have supplied during the application and hiring process, including medical and criminal-background information, has become inaccurate, incomplete, or otherwise has changed prior to your first day of employment, you must immediately notify BNSF via for medical information or for non-medical information and provide an explanation. Failure to do so may result in BNSF rescinding your final offer letter or terminating employment.


         Three days after Feltman received the email informing him that he had satisfied the pre-employment screening requirements for the Conductor Trainee position, Feltman sent an email to BNSF with an attached letter “concerning [his] offer of employment with respect to [his] medical information.” (Doc. 15-1 at 117). He stated in his letter:

I was offered, and accepted, employment with BNSF as a Conductor in Birmingham, Alabama. In completing all my pre-employment documentation and my pre-employment strength and medical exams, there did not seem to be a problem or conflict. I answered all required questions with direct answers and did the same at my various exams and agility tests.
Earlier today, while completing my employment documents, I came across a document that asked if I had a disability. Technically, by the strictest letter of the law, I do have a disability. However, I personally do not feel as if I am disabled. As a teenager, during summer vacation from high school, I was in an accident that resulted in me losing the toes and adjoining area of my right foot. For years, I've worn a prosthesis and have vigorously exercised and maintained a lifestyle that is far more active than the majority of non-disabled people in my age group. . . . At no time has my amputation caused me to fail to do anything that I wanted to do. Therefore, I don't consider this an issue.
However, I do not want my employment to be affected either by the failure to disclose my disability or by the disclosure of my disability. If I have been deemed medically certified by the BNSF Medical Department, does any of this matter? Please give me guidance regarding this very important matter.

(Id. at 119).

         After receiving Feltman's letter, BNSF's Director of Medical Support Services, Chris Kowalkowski, reviewed Feltman's medical questionnaire and determined that Feltman had not disclosed his foot condition in his responses. Kowalkowski re-opened Feltman's medical review for further inquiry into his foot condition. Pursuant to BNSF policy, the medical review was sent back to CHS. CHS Nurse Henderson then contacted Feltman to set up a focused “Occupational Health Assessment” exam with Prime Care. (Doc. 15-3 at ¶ 21).

         Dr. Matthew Krista conducted the focused exam on September 16, 2014. (Doc. 15-2 at 44-45). He followed the “BNSF Focused Exam” form provided by CHS and completed the attached “Musculoskeletal Exam Worksheet B (Hip, Knee, Ankle).” (Id.) Dr. Krista found that Feltman's range of motion in his hips, knee, and ankle was normal; that his gait was normal; and that he was able to tandem walk, walk on his heels, hop, squat, and rise from a squat. (Id.) Dr. Krista noted ...

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