Such blanket exclusions are illegal under the Americans with Disabilities Act because they screen out disabled workers who might still be qualified for the job, Legal Aid at Work said in an amici brief filed in advance of the May 3 oral argument in Thomas Montgomery’s lawsuit against the railroad. The San Francisco-based organization filed the brief with Disability Rights Advocates and five other groups in support of Montgomery and his wife, Myshell Molina.
A federal judge in Arizona granted Union Pacific’s renewed motion for judgment as a matter of law in February 2020 after declaring a mistrial in the case. It found Montgomery failed to show he could perform the essential functions of the train crew job he sought and safely work on or around trains.
But the ADA requires employers to assess each disabled worker’s ability to safely perform, the amici said. That’s necessary to avoid reliance on discriminatory fears and stereotypes, they said.
Union Pacific instead decided for itself that the cerebral aneurysm Montgomery had 2.5 years before applying placed him above the 1% risk of sudden incapacitation per year threshold it set, they said.
Proof Burden at Issue
The limited individualized assessment of Montgomery the railroad conducted fell short because company doctors merely reviewed his medical file and never examined him or spoke with Montgomery or his doctor, the amici said.
Job qualification standards that exclude entire categories of workers with disabilities because they’re deemed to pose an unacceptable safety risk are especially susceptible to the speculations and prejudices the ADA was intended to eliminate, they said.
Union Pacific’s approach was further flawed because it bases its 1% rule on Federal Motor Carrier Safety Administration guidelines that apply to commercial truck drivers, the amici said. The rule shouldn’t be applied to railroad workers because it’s never been adopted by the Railroad Safety Advisory Committee, they said.
The district court also improperly shifted the burden to Montgomery to show he didn’t pose a risk of sudden incapacitation, the amici said.
The ADA only requires a worker to show he is qualified for the job in question. The employer must establish the worker couldn’t meet a rule like Union Pacific’s 1% standard as part of the ADA’s “direct threat” defense, they said.
Montgomery and his backers misread the ADA and circuit precedent, Union Pacific is expected to counter during oral argument.
The plain text of the statute, its legislative history, and Bates v. United Parcel Service Inc. all dictate that a disabled worker must establish his ability to safely perform as part of his prima facie case, the company said in its brief on appeal.
The amici are also wrong that the company’s renewed judgment-as-matter-of-law motion was based on Montgomery’s risk of sudden incapacitation, the company said. It was instead based on his failure to show he had zero work-related safety violations within two years of his job application, another hiring prerequisite, Union Pacific said.
Montgomery’s failure to make that showing was partly the result of trial tactics, the company said.
He caused a car derailment in a similar job with BNSF Railway Co. just four months earlier, a fact he failed to disclose in his application or job interview, it said.
Montgomery had the trial split into two phases to delay introduction of his BNSF derailment until after the jury decided liability, under the after-acquired evidence rule, which generally makes such proof relevant only on the issue of damages, Union Pacific said.
That barred the company from introducing the derailment during the liability phase unless Montgomery opened the door by pointing to his BNSF safety record, it said.
But in guarding against opening the door, Montgomery never showed he could perform its train crew job safely, according to Union Pacific. The trial judge was right that, without such evidence, no jury could find it liable under the ADA, the company said.
Baird Holm LLP represents Union Pacific. Nichols Kaster PLLP represents Montgomery and Molina.
The case is Montgomery v. Union Pac. R.R. Co., 9th Cir., No. 20-15327, oral argument 5/3/21.