United States District Court, N.D. Alabama, Southern Division
E. Ott Chief United States Magistrate Judge
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. 13). The motion has been fully briefed by
the parties. Upon consideration, the motion will be granted.
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.
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).
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.
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
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.
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.
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.
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.
completed and submitted his on-line medical questionnaire on
July 9, 2014. He answered “No” to the following
2. Have you had any of the following that caused you to miss
work/school for more than 2 days . . .
a. Illness or injury,
20. Have your work tasks or daily activities ever been
interfered with by pain, swelling, or soreness in your . . .
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).
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.)
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.
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.
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).
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 firstname.lastname@example.org for
medical information or BNSF.Newhire@bnsf.com for
non-medical information and provide an explanation. Failure
to do so may result in BNSF rescinding your final offer
letter or terminating employment.
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
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
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).
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).
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 ...