IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

BURLINGTON NORTHERN &

)

SANTE FE RAILWAY COMPANY

)

)

)

)

Defendant.

)

CIVIL ACTION NO. COMPLAINT DEMAND FOR JURY TRIAL

COMPLAINT

NATURE OF THE ACTION This is an action under Title I of the Americans with Disabilities Act of 1990 (“ADA”) and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of disability and to provide appropriate relief to Thomas Freeman (“Freeman”) who was adversely affected by such practices. The Commission alleges that the Defendant failed to hire Freeman because it regarded him as disabled.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by

1

reference Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5(f)(1) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Western District of Oklahoma.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII , 42 U.S.C.§2000e-5(f)(1) and (3). 4. At all relevant times, Defendant, Burlington Northern and Santa Fe Railway Company (“BNSF”), a Texas corporation, has continuously been doing business in the State of Oklahoma and has continuously had at least 15 employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C.§ 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h). 6. At all relevant times, Defendant has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
2

STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Thomas Freeman filed a charge with the Commission alleging violations of Title I of the ADA by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Since at least on or about December 5, 2002, Defendant has engaged in unlawful employment practices in violation of Section 102 of Title I of the ADA, 42 U.S.C.§ 12112 by denying Thomas Freeman employment because it regarded him as disabled. 9. The effect of the practice complained of in paragraph 8 above has been to deprive Thomas Freeman of equal employment opportunities and otherwise adversely affect his status as an employee based upon his perceived disability. 10. The unlawful employment practice complained of in paragraph 8 above was intentional. 11. The unlawful employment practice complained of in paragraph 8 above was done with malice or with reckless indifference to the federally protected rights of Thomas Freeman.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any unlawful employment practice which discriminates on the basis of disability or perceived disability. B. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities which eradicate the effects of its past and present
3

unlawful employment practices. C. Order Defendant to make whole Thomas Freeman by providing appropriate
backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to rightful place reinstatement and/or front pay.
D. Order the Defendant to make whole Thomas Freeman by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practice described in paragraph 8 above, including but not limited to emotional pain, suffering, inconvenience, humiliation, mental anguish, and loss of enjoyment of life, in amounts to be determined at trial.
E. Order the Defendant to pay Thomas Freeman punitive damages for its malicious conduct or reckless indifference described in paragraph 8, above, in an amount to be determined at trial.
F. Grant such further relief as the Court deems necessary and proper in the public interest.
G. Award the Commission its costs in this action.
JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its Complaint.
4

JURY TRIAL DEMANDED

Respectfully submitted,
ERIC S. DREIBAND General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
ROBERT A. CANINO, OBA #011782 Regional Attorney
TOBY W. COSTAS, Texas Bar # 04855720 Supervisory Trial Attorney
S/ HOLLY WALDRON COLE OBA #14600 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ATTORNEYS FOR PLAINTIFF 210 Park Avenue, Suite 1350 Oklahoma City, Oklahoma 73102 (405) 231-5853 Telephone (405) 231-4340 Telefax Holly.Cole@Eeoc.gov

5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

)

BURLINGTON NORTHERN & SANTA

)

FE RAILWAY COMPANY,

)

)

Defendant.

)

NO. CIV-04-660-T

O R D E R

Before the court is the defendant’s motion [Doc. No. 5] to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Defendant contends that the allegations in the complaint fail to state a claim upon which relief may be granted. Plaintiff has responded, and defendant has filed a reply brief in support of its motion.
The Equal Employment Opportunity Commission (“EEOC”) brought this action to pursue an alleged violation of the Americans with Disabilities Act (“ADA”) by defendant Burlington Northern & Santa Fe Railway Company (“Burlington”). The EEOC alleges that Burlington violated the ADA by withdrawing a conditional job offer to Thomas Freeman. More specifically, the EEOC alleges that Burlington withdrew the offer because it regarded or perceived Freeman as disabled.
Burlington contends that dismissal pursuant to Fed.R.Civ.P. 12(b)(6) is warranted because the allegations show that the EEOC’s legal theory is invalid. Burlington acknowledges, however, that the invalidity on which it relies must be demonstrated by reference to material outside the scope of the pleadings. It contends that, because of the nature of this material, it can be considered as a part of the complaint and,

therefore, the court need not convert this motionto a motionforsummaryjudgment. In response, the EEOC submits additional documents outside the scope of the complaint. Although the EEOC notes that Burlington’s reference additional material, it responds to the motion as one seeking dismissal rather than summary judgment. If the motion is converted to one for summary judgment, the EEOC asks that it be given the opportunity to conduct discovery prior to responding to the motion, as provided in Fed.R.Civ.P. 12 (c) and Fed.R.Civ.P. 56(f).
As a general rule, the court cannot consider material outside the pleadings when ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). “In deciding a Rule 12(b)(6) motion, a federal court generally "should not look beyond the confines of the complaint itself." MacArthur v. San Juan County, 309 F.3d 1216, 1221 (10th Cir. 2002), citing Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 960 (10th Cir.2001), rev’d on other grounds, 537 U.S. 79 (2002).
There are two exceptions to this rule. MacArthur, 309 F.3d at 1221. First, the district court may consider "mere argument" contained in the parties' memoranda concerning a motion to dismiss. Ohio v. Peterson, Lowry, Rall, Barber & Ross, 585 F.2d 454, 457 (10th Cir.1978). Second, "[i]t is accepted practice, if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss." Howsam, 261 F.3d at 961 (quotation omitted). See also GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997). Where the defendant presents such documents, the court is not required to consider them in ruling on the motion to dismiss; rather, the court has the discretion to decide if it should do so. Prager v. LaFaver, 180 F.3d 1185, 1188-89 (10th Cir. 1999).
2

In this case, Burlington does not argue that the factual allegations in the complaint are deficient, but it contends that those allegations, taken as true, present an invalid legal theory. In summary, Burlington contends that Freeman does not qualify as disabled as required by the ADA because he is not substantially limited in a major life activity. The major life activity alleged by the EEOC is that of working; Burlington argues that Freeman cannot be so limited in the context of the definition of that term. As Burlington points out, the regulations applying the ADA provide that, to qualify as being substantially limited in the major life activity of working, one must be “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i).
The parties’ briefs reflect that the primaryquestionat issue is whetherFreemansatisfiedthe definition of a qualified person with a disability. That issue, in turn, depends at least in part on the question of whether he was substantially limited in the major life activity of working. As the parties’ briefs reflect, the EEOC regulations governing the ADA require that, to be so limited, an individual must be restricted in the ability to perform a class of jobs or a broad range of jobs in various classes.
It is apparent to the court that this key question cannot be resolved by reviewing the complaint, the EEOC charge ofdiscrimination, Burlington’s response, or the other correspondence submittedbyBurlington as exhibits to its brief. While these materials outside the scope of the pleadings may be regarded as central to understanding the basis of the EEOC claim, they do not resolve the question of whether Freeman satisfies the ADA requirements of an individual substantially limited in the life activity of working. Whether he was restricted in his ability to perform a class of jobs or a broad range of jobs is a question which requires
3

submission of additional evidence outside the scope of the pleadings, according to the affidavit submitted by the EEOC as its Exhibit 3.
The court finds that the complaint, on its face, states a claim upon which relief may be granted and that dismissal is inappropriate. Even if the court were to consider the additional materials submitted by the parties are a part of the complaint for purposes of a motion to dismiss under Fed.R.Civ.P. 12(b)(6), those documents would not resolve the issue. Therefore, Burlington’s motion to dismiss [Doc. No. 5] is DENIED.
The court declines to convert the motion to one for summary judgment because, as the EEOC notes, no discovery hasbeenconducted. Because it is possible that discovery will impact the validity of the parties’ arguments regarding the major life activity of working as applied to this case, converting the motion at this time would not be economical or in the interest of the orderly adjudication of this case. Instead, the parties can pursue dispositive motions at a later time, if same are proper under the facts developed through discovery.
4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

)

BURLINGTON NORTHERN & SANTA

)

FE RAILWAY COMPANY,

)

)

Defendant.

)

NO. CIV-04-660-T

JUDGMENT Pursuant to the Decem ber 8, 2005 order entered herein [Doc. No. 44] gr anting the defendant’s motion for summary judgment and pursuant to the parties’ current joint confirmation that no othe r issues remain for discovery or trial, judgm ent is hereby entered in favor of the defendant Burlington Northern & Santa Fe Railw ay Company and against the plaintiff Equal Employment Opportunity Commission on all claims asserted by plaintiff in this action. IT IS SO ORDERED this 16th of December, 2005.

 
 406 F.Supp.2d 1228 (2005)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, Defendant.
No. CIV-04-660-T.
United States District Court, W.D. Oklahoma.
December 8, 2005.
1229 *1229 Holly Waldron Cole, EEOC-OKC, Oklahoma City, OK, Toby W. Costas, EEOC-DALLAS, Dallas, TX, for Plaintiff.
Stephen F. Fink, Bryan P. Neal, Thompson & Knight, Dallas, TX, Lawrence M. Stroik, Fort Worth, TX, Roberta Fields, Patricia L. Franz, Rainey, Ross, Rice & Binns, Oklahoma City, OK, for Defendant.
ORDER
RALPH G. THOMPSON, District Judge.
Before the court is the motion [Doc. No. 36] of defendant Burlington Northern and Santa Fe Railway Company ("Burlington") for summary judgment on the claim asserted by the Equal Employment Opportunity Commission ("EEOC"). Pursuant to Fed.R.Civ.P. 56(c), Burlington argues that the undisputed material facts in the record establish that it is entitled to judgment as a matter of law on the EEOC's claims.
The EEOC brings this action on behalf of Thomas Freeman ("Freeman"), alleging that Burlington violated the Americans with Disabilities Act of 1990 ("ADA") by declining to employ Freeman as a Conductor Trainee because it "regarded him as disabled." Burlington initially moved to dismiss the action, arguing that the EEOC could not satisfy the ADA requirements of a claim for relief based on a "regarded as" theory. That motion was denied because its adjudication required consideration of material outside the pleadings, thus rendering it inappropriate for consideration in a motion to dismiss. The parties proceeded to conduct discovery on this issue.
1230 *1230 In its motion for summary judgment, Burlington argues that the EEOC cannot prevail on the claim because it cannot show that Burlington regarded Freeman as disqualified from performing a class of jobs or a broad range of jobs in various classes. Because the EEOC must prove that contention in order to establish that Burlington discriminated by regarding Freeman as disabled, Burlington argues that the EEOC cannot prove disability discrimination as a matter of law. The parties have fully briefed this issue and have submitted an extensive record.
Summary judgment may be granted where the undisputed material facts establish that one party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A material fact is one which may affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To avoid summary judgment, plaintiffs must present more than a "mere scintilla" of evidence; the evidence must be such that "a reasonable jury could return a verdict for the nonmoving party." Id. The facts in the record and reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party. MacKenzie v. City & County of Denver, 414 F.3d 1266, 1273 (10th Cir.2005). Where the undisputed facts establish that a plaintiff cannot prove an essential element of a cause of action, defendant is entitled to judgment on that cause of action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
In this case, it is undisputed that Freeman applied for the Conductor Trainee position with Burlington, and he did not apply for other jobs. The parties also agree that, as the job title implies, the position is that of a railroad conductor in training; thus, the qualifications for a Conductor Trainee and a Conductor are essentially the same. It

is also undisputed that a conditional offer of employment was made to Freeman, pending a physical examination, drug test, and background check. Further, the parties agree that Burlington's Chief Medical Officer, Dr. Michael Jarrard ("Dr.Jarrard"), concluded that Freeman was not qualified for the position.
It is not disputed that Burlington's job posting for the position of Conductor Trainee includes a description of the duties to be performed in that position; among the duties specified are the following:
Gets on and off equipment while train is performing industrial station or yard switching, to set or release hand brakes or other duties. Rides moving car by hanging on grab irons or ladder, sometimes for extended periods of time.
Burlington Job Posting, Burlington Exhibit 3. Burlington's job profile for the position of Conductor Trainee also states, in the description of job duties, that the employee "Rides moving car by hanging on grab irons or ladder, sometimes for extended periods of time." Job Profile, Burlington Exhibit 4, page 2.
The parties agree that, as required by Burlington, Freeman completed certain tests and courses required for his application for a Conductor Trainee position; he also had a physical examination. During this period, Freeman told Burlington that he had previously suffered an injury to his left arm. Upon Burlington's request, he submitted medical records, and the records reflected that, although he had been released to work, he had weakness in his left arm and diminished grip strength in his left hand. Burlington's Chief Medical Officer, Dr. Jarrard, determined 1231 that these conditions disqualified Freeman for "train service" jobs with Burlington because an *1231 essential function of those jobs is the ability to hold on to the exterior of a moving train; Dr. Jarrard notified Freeman that his condition created a "significant risk that a serious or potentially fatal accident may occur while performing train service work." January 10, 2003 Letter from Dr. Jarrard to Freeman, submitted as EEOC Exhibit 4.
Conductors and Conductor Trainees fall into a Burlington job category known as "train service" employees. According to Burlington, the jobs categorized as train service positions are Conductor Trainee, Conductor, Brakeman, Switchman/Switch Foreman, and Hostler[1]. Deposition of Burlington Human Resources Director Terrill L. Morgan, Burlington Exhibit 2, page 65, lines 22-24. (Hereinafter "Morgan dep."). These are the only positions that include the job requirement of holding on to the grab bar or ladder on the exterior of a moving train. Id., page 90, lines 14-16. Many other jobs involve climbing on to the exterior grab bars or ladder; however, those jobs do not require the employee to do so while the train is moving. Morgan dep., page 90, lines 14-25; page 91, lines 1-3. Climbing on to a stationary train is an activity performed by almost all Burlington employees, regardless of their specific jobs; employees in many positions may also hold on to grab bars or ladders on the train exterior while performing their duties. Morgan Declaration, ¶ 5, Burlington Exhibit 1. Employees in positions other than train service may sometimes hold on to the exterior of a moving train; however, they are not required to do so as a part of their duties. Id.
When he was not selected for the Conductor Trainee position, Freeman filed an EEOC complaint alleging both age and disability discrimination as the motivations for Burlington's failure to hire him. The record contains no evidence that the EEOC made a finding regarding his age discrimination claim. However, the EEOC issued a Determination that Burlington's failure to hire Freeman constituted disability discrimination because Burlington regarded Freeman as disabled. In its Determination, the EEOC acknowledged that Burlington told Freeman that he was "not qualified for train service employment" with Burlington because of his medical condition. EEOC Determination, submitted as a part of the documents comprising Burlington Exhibit 1. The EEOC Determination also stated that Burlington defined "train service work" to include the job positions of Conductor Trainee, Brakeman, Switchman, Conductor, and Engineer[2]. Id. The EEOC opined that these positions constituted "a 1232 broad class of *1232 jobs," noting that Burlington employed "over 16,000 in these positions." Id. The EEOC concluded that Burlington regarded Freeman as disabled, "that is, substantially limited in the major life activity of working in a broad range of train service jobs." EEOC Determination, Burlington Exhibit 1. The EEOC further concluded that Burlington had "failed to establish with objective evidence that [Freeman] posed a direct threat of significant risk of substantial harm to the health or safety of himself or others." Id. The EEOC then filed this lawsuit, alleging that Burlington discriminated against Freeman. It contends that Freeman is disabled, as defined by the ADA, because Burlington "regarded him" as disabled. As a result, the EEOC alleges, Burlington violated the ADA when it failed to hire him as a Conductor Trainee.

To be a covered employee under the ADA, an individual must be a "qualified individual with a disability." 42 U.S.C. § 12112(a); Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). A disability includes: a) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; or 2) a record of such an impairment; or 3) being "regarded as" having such an impairment. 42 U.S.C. § 12102(2).
In this case, the EEOC's sole basis for alleging that Freeman is covered by the ADA is its contention that Burlington "regarded" Freeman as being substantially limited in his ability to perform the major life activity of working[3]. A person is "regarded as disabled" for ADA purposes when "(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. "Kelly v. Metallics West, Inc., 410 F.3d 670, 675 (10th Cir.2005), quoting Lanman v. Johnson County, Ks., 393 F.3d 1151, 1156 (10th Cir.2004) and Sutton v. United Air Lines. Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); see also 29 C.F.R. § 1630.2(1).
To be substantially limited in the major life activity of working, the employee must be unable to perform either "a class of jobs or a broad range of jobs in various classes." Doebele v. Sprint/United Management Co., 342 F.3d 1117, 1133 (10th Cir.2003), citing Sutton, 527 U.S. at 491-92, 119 S.Ct. 2139, (quoting 29 C.F.R. pt. 1630, App. § 1630.2(j)(3)(I)). To show that an employee is "regarded as" disabled because he is substantially limited in the major life activity of working, the EEOC must therefore establish that the employer regarded the employee as having an impairment substantially limiting his ability to perform a class of jobs or a broad range of jobs in various classes; it is not enough to show that he is substantially limited in his ability to perform the specific tasks required of a single position. Doebele, 342 F.3d at 1122, citing Sutton, 527 U.S. at 491-92, 119 S.Ct. 2139; see also McKenzie v. Dovala, 242 F.3d 967, 970-72 (10th Cir. 2001).
1233 *1233 The issue raised by Burlington's motion and the EEOC's response is whether Burlington's decision regarding Freeman applies to a "class of jobs" or a "broad range of jobs in a class." Burlington argues that the evidence shows that its decision does not satisfy the ADA definition for either category, while the EEOC contends that the requirements are applicable to a class of jobs.
The ADA regulations define a "class of jobs," for purposes of determining if an individual is substantially limited in the major life activity of working, as:
[t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment.
29 C.F.R. § 1630.2(j)(3)(ii)(B). A "broad range of jobs in various classes" is defined as:
[t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment.
29 C.F.R. § 1630.2(j)(ii)(C). The regulations further state that the "inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(I). This, an employer does not violate the ADA "regarded as" provision if it believes that a limitation disqualifies an individual from performing certain functions applicable to a particular job. Sutton v. United Air Lines, Inc., 130 F.3d 893, 904 (10th Cir.1997). Furthermore, "the inability to perform one aspect of a job while retaining the ability to perform the work in general does not amount to substantial limitation of the activity of working." MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1445 (10th Cir.1996), quoting Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir.1995).
Although Burlington argues that its decision regarding Freeman would disqualify him only from the train service category of jobs, the EEOC contends that he would be disqualified from a number of other Burlington jobs. The EEOC argues that many other positions involve climbing on to a train and grabbing on to bars or ladders; it also contends that non-train service employees hold on to the exterior of moving trains. In support of this contention, the EEOC offers affidavits of two Burlington non-train service employees who state that they have observed

employees in a variety of job positions climbing onto a train, grabbing on with one hand, and sometimes riding on the exterior of a moving train; they also state that they have done so. See Declaration of Maria Buckles, EEOC Exhibit 10; Declaration of Robert Long, Jr., EEOC Exhibit 11. Thus, the EEOC contends, Freeman's impaired grip strength and arm strength would disqualify him from Burlington positions other than those in the train service category.
According to the evidence before the court, the only Burlington positions which include as a job requirement the ability to grasp and hold on to a moving train, sometimes for an extended period of time, are Conductor Trainee/ Conductor, Brakeman, Switchman/Switchman Foreman, and Hostler. Declaration of Burlington's Director of Human Resources, Terrill L. Morgan, Burlington Exhibit 1, ¶ 5 (hereinafter, "Morgan Declaration"); Morgan dep., 1234 page 65, lines 22-24, Burlington Exhibit 2. Although Burlington employees holding *1234 other jobs may be required to get on and off the train, and may have to grasp a grab iron or ladder when doing so, there is no evidence that they are required, as an essential function of their job, to be able to continually grasp the exterior of the train while it is moving.
The EEOC contends that, in his deposition, Morgan testified that many other positions are included in the category of train service. EEOC brief, page 3, citing Morgan dep., pages 23, 49, 50, 75, and 92-93. Morgan's deposition testimony includes extensive discussion of many job positions at Burlington and, as he expressly stated and the EEOC acknowledges, there is no written definition of "train service." He also testified that some employees may use the term loosely and refer to some positions as train service other than the specific positions which the parties agree are included. Morgan dep., p. 22-23, 65. Contrary to the EEOC's argument, he did not state in his deposition that Burlington categorized additional jobs as train service. Moreover, as Burlington points out, the critical determination made by Burlington's Chief Medical Officer was Freeman's ability to perform the essential functions of the jobs in train service which require the ability to hold on to the exterior of a moving train.
The court concludes that the EEOC's argument and the employee declarations it submits do not support the EEOC's contention. Although Burlington employees in a variety of job positions may choose to grab on to a moving train and/or otherwise grasp the exterior of the train, the issue is not whether such conduct may occur. Rather, the issue is whether the ability to grab and hold onto a moving train is a requirement of the job. The EEOC's evidence does not show that employees in other job positions are required to have that ability; however, the ability to do so is a job requirement for the positions of Conductor Trainee, and that is the only position for which Freeman was an applicant.
The EEOC also repeatedly argues that Burlington considered Freeman's impairments as precluding him from holding positions that would require climbing onto a train, an activity required of the majority of Burlington employees. However, the EEOC's argument is not supported by the record. The record shows that Burlington's decision was not based only on Freeman's grip strength, but on the combination of his weakened left arm and diminished left hand grip strength. The evidence does not support the contention that Freeman was considered disqualified from performing any job that required the ability to climb onto a train. In fact, the evidence shows that Burlington considers him qualified for several other positions which do not require the physical ability to grab and hold onto a moving train on a regular basis. Human Resources Director Morgan cited several examples, including but are not limited to carman, mechanical laborer, maintenance-of-way laborer, truck driver, dispatcher, assistant signalman, and clerk. Morgan Declaration, ¶ 9, Burlington Exhibit 1; Morgan dep., p. 176, lines 7-24.
The court concludes that the evidence establishes that the only Burlington jobs from which Freeman is disqualified because of Burlington's decision are those in the category of train service and that those jobs include Conductor Trainee/Conductor, Brakeman, Switchman/ Switch Foreman and Hostler. Thus, the question is whether train service constitutes a "class of jobs."
To support its claim that train service is a class of jobs, the EEOC appears to rely heavily on the number of 1235 Burlington employees in train service nationally. In its Determination, the EEOC expressly *1235 noted that
Burlington employs "over 16,000 in these positions." EEOC Determination, page 2, included in Burlington Exhibit 1. The EEOC concluded that the train service positions constitute a sufficient number of Burlington's work force to constitute a "class of jobs." Id. Burlington admits that, at the time of its decision regarding Freeman, it employed 16,050 full-time or part-time employees in the train service positions throughout the United States[4] and that

number constitutes almost half of its 37,529 employees. See Burlington answer to plaintiff's Interrogatory No. 6, EEOC Exhibit No. 6, page 5.
Despite the EEOC's emphasis on the number of train service employees, it has not submitted authority stating that the number of employees, without more, creates a class of jobs. The court has located no authority which would support such conclusion. In fact, some courts have expressly rejected the argument that numbers alone create a class of jobs. See, e.g., EEOC v. J.B. Hunt Transport, Inc., 321 F.3d 69, 71, 75-77 (2d Cir.2003); Chandler v. City of Dallas, 2 F.3d 1385, 1391 n. 29 (5th Cir.1993). Instead, the courts considering whether an individual is regarded as disqualified from a class of jobs have focused on the duties required to be performed in the jobs, including the specific skills required of the disqualified person.
Decisions in this circuit and others show that, where an individual cannot perform a specific required task in a particular position or positions but can perform other tasks, he is not considered excluded from a "class of jobs." For example, an aircraft mechanic who was disqualified from a position requiring the taxiing of aircraft because of his vision impairment was not substantially limited in the activity of working because his skills allowed him to perform other aircraft mechanic jobs not requiring that specific function. MacDonald, 94 F.3d at 1445. According to the Tenth Circuit, "taxiing aircraft is neither `a class of jobs' nor `a broad range of jobs in various classes,' but is instead `a single, particular job.'" Id., citing 29 C.F.R. § 1630.2(j)(3)(I).
Similarly, a welder whose arm injury was determined to preclude her from a welding position requiring climbing was not regarded as disabled based on the life activity of working because her skills allowed her to perform other welding jobs not requiring the ability to climb. Dutcher, 53 F.3d at 727. The Tenth Circuit has also held that the fact that an employer disqualified an individual from a job requiring lifting did not support a claim that the employer regarded him as disabled; the "belief that [the employee] could no longer perform a job that required lifting in excess of [his] capabilities does not mean that [the employer] regarded [him] as disabled" because he was able to perform other tasks which allowed him to work in other positions for the same employer. Rakity v. Dillon Companies, 302 F.3d 1152, 1164 (10th Cir.2002).
Other circuits have applied a similar analysis to determine the existence of a class of jobs. See, e.g., Rossbach v. City of Miami, 371 F.3d 1354, 1361 (11th Cir. 2004); Epps v. City of Pine Lawn, 353 F.3d 588, 590 (8th Cir.2003); Sheehan v. City of Gloucester, 321 F.3d 21, 25-26 (1st Cir.2003). (Generally holding that the job of police officer 1236 is too narrow a category to constitute a class of jobs for ADA purposes, *1236 as inability to perform specific functions unique to that job does not exclude the individual from working in all law enforcement positions.)
The United States Supreme Court applies the same analysis. See, e.g., Murphy v. United Parcel Service, 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999). In Murphy, a United Parcel Service mechanic whose position required him to drive commercial vehicles was determined, under Department of Transportation ("DOT") rules, to be ineligible to drive a commercial vehicle because of his hypertension. Following his termination, he alleged that his employer regarded him as disabled because it believed he was substantially limited in the major life activity of working. 527 U.S. at 519-20, 119 S.Ct. 2133. Affirming the Tenth Circuit's decision, the court held that his inability to obtain DOT certification limited him from working in a mechanic position that required such certification; however, it did not limit his from other mechanic jobs for which he had training and skills which he remained capable of performing. Id. at 524, 119 S.Ct. 2133. In fact, the evidence showed that his employer maintained numerous other job positions for which he would be qualified regardless of his hypertension. 527 U.S. at 524-25, 119 S.Ct. 2133. "Consequently, in light of petitioner's skills and the array of jobs available to petitioner utilizing those skills, petitioner has failed to show that he is regarded as unable to perform a class of jobs." Id. at 525, 119 S.Ct. 2133.
In this case, when Burlington notified Freeman that it considered him disqualified for the Conductor Trainee position, it specifically stated that he was disqualified from working in "train service" and referenced the "essential function" for train service work of holding onto a moving train car. See January 10, 2003 letter to Freeman from Dr. Jarrard, EEOC Exhibit 4. Contrary to the EEOC's argument, the evidence does not show that Burlington considered Freeman disqualified from all jobs which might involve climbing on to a train or grasping a hand bar or similar feature. The evidence shows that the only jobs for which Burlington considered Freeman to be unable to perform because of his weakened left arm and diminished left hand grip strength are those which require grabbing on to, and holding on to, a moving train. This distinction is significant because, as Burlington indicates, it

is based on safety considerations which are not applicable to other jobs which do not require this ability. The fact that other Burlington employees, including those submitting the declarations labeled as EEOC Exhibits 10 and 11, may perform these activities is not persuasive because there is no evidence that they are required to hold on to the exterior of a moving train in order to perform their job duties. That employees in other positions may choose to perform tasks that they are not required to perform does not mean that those tasks are essential to jobs other than the train service positions identified by Burlington. In fact, as noted above, the evidence shows that Human Resources Director Morgan considered Freeman qualified for a number of other Burlington positions not requiring the job function at issue.
The EEOC attempts to distinguish the authorities cited by Burlington as inapplicable to train service work, and offers the opinion of a proposed expert witness in further support of its contentions. See EEOC Exhibits 12 and 13. The witness, an EEOC economist, submits a written report and opines that Freeman was regarded as being limited in performing a class of jobs. The report reflects, however, that she relies heavily on the conclusion that 1237 Freeman was considered ineligible to perform any job that might include climbing *1237 onto a train or grabbing exterior bars or ladders. As discussed herein, the evidence does not support that broad view because the limitation cited by Burlington is the ability to hold on to the exterior of a moving train, a requirement applicable to only train service positions. Thus, the witness's discussion of the many other positions which involve climbing onto a train or gripping handles does not apply.
Having fully reviewed the evidence and the applicable law, the court concludes that the EEOC has not submitted evidence sufficient to create a material fact dispute regarding the existence of a class of jobs as that term is defined by the ADA. The evidence shows that Burlington determined Freeman was disqualified from selection for the only job for which he applied, Conductor Trainee, and the other positions in the train service category. That decision was based on the fact that those jobs, unlike other Burlington jobs, expressly require the employee to be able to held on to the exterior of a moving train. Burlington determined that, due to his weakened left arm and diminished left hand grip strength, Freeman could not safely perform that required job function. The court concludes that this decision does not exclude Freeman from consideration for other Burlington jobs not requiring that skill; neither does the category of train service constitute a class of jobs as that term is defined by the ADA.
The EEOC also argues in its response brief that Burlington's decision would disqualify Freeman from working in a "broad range of jobs in various classes," an alternative means of showing substantial limitation in the major life activity of working, as required by the ADA. As Burlington points out, the EEOC Determination cites only a "class of jobs" as the basis for this element. However, even if the Determination can be construed as also based on a finding that Freeman was regarded as limited from working in a broad range of jobs in various classes, the evidence does not support that conclusion.
The EEOC's argument, including its proposed expert witness testimony, is based on its contention that Burlington determined Freeman to be disqualified from jobs requiring gripping and climbing onto equipment. As discussed above, the evidence before the court does not support that contention. That Burlington considered him disqualified from performing the essential function of holding on to the exterior of a moving train does not render him unable to perform numerous other functions for which he is otherwise qualified. The EEOC's evidence does not support its contention.
Accordingly, Burlington's motion for summary judgment [Doc. No. 36] is GRANTED. Based on the parties' representations and the record before the court, the court believes that this issue is dispositive of the only claim asserted by the EEOC. Therefore, it should conclude this litigation. Because the motion and preceding discovery are limited, however, the parties are directed to advise the court if there are any remaining issues for discovery and trial. The parties shall do so by written submission no later than December 16, 2005.
[1] Although Burlington's Human Resources Director included the job of hostler in the train service category during his deposition, Burlington's response to the EEOC complaint and other documents in the record do not include that position in the train service category. Weighing the facts in favor of the EEOC, the court will consider the job of hostler to be a train service job for purposes of this motion. In addition, the court has identified the position of switchman as "switchman/switch foreman" because the testimony references both positions.

[2] The undisputed evidence shows that the position of railroad or locomotive engineer does not involve all physical abilities required of other train service positions. However, Burlington included it in the train service category because the collective bargaining agreement to which it is subject specifies that the position of engineer is the final step in a progression which requires that, to be eligible for training as a railroad or locomotive engineer, an individual must have held the positions of Conductor Trainee/Conductor or Brakeman/Switchman. See June 27, 2003 letter to EEOC from Burlington's Director of Equal Opportunity, EEOC Exhibit 8, ¶ 2.
[3] According to the EEOC regulations, working is a major life activity. 29 C.F.R. § 1630.2(l). As Burlington points out, the United States Supreme Court has expressed reservations about the propriety of including working in this category. Sutton v. United Air Lines, Inc., 527 U.S. 471, 492-93, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). However, the court has not expressly decided that issue, and Burlington does not challenge it in its motion. Accordingly, for purposes of this motion, the court will consider working to be a major life activity.
[4] In its brief, the EEOC states that Morgan testified that 20,000 individuals occupy train service positions. However, the deposition pages which it cites as supporting that testimony do not include that statement. See Morgan dep., pages 72-73, EEOC Exhibit 1. No other exhibit includes a reference to 20,000 employees.
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 CM/ECF LIVE - U.S. District Court:okwd - Docket Report

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U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:04-cv-00660-T

87BG, _ME

Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railway Company Assigned to: Honorable Ralph G. Thompson Demand: $100,000,000 Case in other court: 06-06074 Cause: 42:1983 Civil Rights (Employment Discrimination)

Date Filed: 05/27/2004 Date Terminated: 12/16/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Holly Waldron Cole EEOC-OKC Equal Employment Opportunity Commission 215 Dean A McGee Suite 524 Oklahoma City, OK 73102 405-231-5853 Fax: 405-231-4340 Email: Holly.Cole@EEOC.gov TERMINATED: 02/14/2005

Toby W Costas EEOC-DALLAS 207 S Houston Ave 3rd Fl Dallas, TX 75202 214-253-2760 Fax: 214-253-2749 Email: TOBY.COSTAS@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant Burlington Northern Santa Fe Railway Company

represented by Bryan P Neal Thompson & Knight-DALLAS 1700 Pacific Ave Suite 3300 Dallas, TX 75201 214-969-1762 Fax: 214-969-1751 Email: bryan.neal@tklaw.com ATTORNEY TO BE NOTICED

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#

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Lawrence M Stroik 817-352-2360 Fax: 817-352-2399 Email: Lawrence.Stroik@BNSF.com ATTORNEY TO BE NOTICED
Nancy M Gerrity Rainey Ross Rice & Binns 120 N Robinson Ave Suite 735 W Oklahoma City, OK 73102 405-235-1356 Fax: 405-235-2340 Email: ngerrity@raineyfirm.com TERMINATED: 10/05/2004
Patricia L Franz Rainey Ross Rice & Binns 120 N Robinson Ave Suite 735 W Oklahoma City, OK 73102 405-235-1356 Fax: 405-235-2340 Email: pfranz@raineyfirm.com ATTORNEY TO BE NOTICED
Roberta Fields Rainey Ross Rice & Binns 120 N Robinson Ave Suite 735 W Oklahoma City, OK 73102 405-235-1356 Fax: 405-235-2340 Email: fieldsr-ne@oge.com ATTORNEY TO BE NOTICED
Stephen F Fink Thompson & Knight-DALLAS 1700 Pacific Ave Suite 3300 Dallas, TX 75201 214-969-1120 Fax: 214-969-1751 Email: stephen.fink@tklaw.com ATTORNEY TO BE NOTICED
Docket Text
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04/15/2004 05/27/2004 06/16/2004 07/07/2004 07/07/2004
07/07/2004 07/07/2004 07/13/2004 07/14/2004
07/14/2004 07/15/2004 07/30/2004
08/02/2004

2 GENERAL ORDER 04-02 (April 15, 2004) Mandatory Electronic Case Filing. Signed by Judge Ralph G. Thompson on 4/15/04. (cjs, ) (Entered: 05/27/2004)
1 COMPLAINT against Burlington Northern Santa Fe Railway Company , filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(cjs, ) Modified on 5/27/2004 (cjs, ). (Entered: 05/27/2004)
3 PRAECIPE for and issued 1 summons by Equal Employment Opportunity Commission. (cjs, ) (Entered: 06/16/2004)
4 ENTRY of Appearance by Roberta Fields on behalf of Burlington Northern Santa Fe Railway Company (Fields, Roberta) (Entered: 07/07/2004)
5 MOTION to Dismiss and Brief in Support by Burlington Northern Santa Fe Railway Company. (Attachments: # 1 Exhibit 1 - EEOC charge# 2 Exhibit 2 EEOC Determination# 3 Exhibit 3 - Proposed Conciliation Agreement# 4 Exhibit 4 - BNSF Position Statement# 5 Exhibit 5 - Response to Supplemental Inquiry)(Fields, Roberta) (Entered: 07/07/2004)
6 MOTION for Limited Admission Pro Hac Vice by Burlington Northern Santa Fe Railway Company. (Attachments: # 1 Exhibit 1 - Pro Hac Vice - Fink# 2 Exhibit 2 - Pro Hac Vice - Neal# 3 Exhibit 3 - Pro Hac Vice - Stroik)(Fields, Roberta) (Entered: 07/07/2004)
7 DISCLOSURE STATEMENT by Burlington Northern Santa Fe Railway Company. (Fields, Roberta) (Entered: 07/07/2004)
8 Receipt for Money Received from Rainey Ross Rice & Binns in the amount of $150.00 receipt number 105420 regarding 6 MOTION for Limited Admission Pro Hac Vice (cjs, ) (Entered: 07/13/2004)
9 ORDER granting 6Stephen F Fink, Bryan P Neal and Lawrence M Stroik's Motion for Limited Admission provided cnsl file their respective entries of appearance, consistent with LcvR 83.4 and submit their ECF reg form as req by this Court.. Signed by Judge Ralph G. Thompson on 7/14/04. (cjs, ) (Entered: 07/14/2004)
10 MOTION for Extension of Time to File Response/Reply as to 5 MOTION to Dismiss and Brief in Support by Equal Employment Opportunity Commission. (Cole, Holly) (Entered: 07/14/2004)
11 ORDER granting 10 Pla's Motion for Extension of Time to File Response/Reply re 10 MOTION for Extension of Time to File Response/Reply as to 5 MOTION to Dismiss and Brief in Support Responses due by 7/30/2004. Signed by Judge Ralph G. Thompson on 7/15/04. (cjs, ) (Entered: 07/15/2004)
12 RESPONSE to Motion re 5 MOTION to Dismiss and Brief in Support filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1-Jarrad Letter# 2 Exhibit 2-Courreges June 27# 3 Exhibit 2-Courreges June 27, p.2# 4 Exhibit 3-Sisolak Declaration# 5 Exhibit 4-Courreges May 28)(Cole, Holly) (Entered: 07/30/2004)
13 ENTRY of Appearance by Stephen F Fink on behalf of Burlington Northern Santa Fe Railway Company (Fink, Stephen) (Entered: 08/02/2004)

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08/02/2004 08/03/2004 08/09/2004 08/10/2004
08/13/2004 08/13/2004 09/28/2004 10/04/2004 10/05/2004 10/12/2004 10/20/2004 11/01/2004 11/05/2004 11/10/2004 11/22/2004 11/22/2004

14 ENTRY of Appearance by Bryan P Neal on behalf of Burlington Northern Santa Fe Railway Company (Neal, Bryan) (Entered: 08/02/2004)
15 ENTRY of Appearance by Lawrence M Stroik on behalf of Burlington Northern Santa Fe Railway Company (Stroik, Lawrence) (Entered: 08/03/2004)
16 UNOPPOSED MOTION for Leave to File Reply by Burlington Northern Santa Fe Railway Company. (Gerrity, Nancy) (Entered: 08/09/2004)
17 ORDER granting 16 dft's Motion for Leave to File Reply. Dft is granted lv to file a reply brf in support of its mtn to dismiss not to exceed 10 pages w/in 5 days of the date of this order. . Signed by Judge Ralph G. Thompson on 8/10/04. (cjs, ) (Entered: 08/10/2004)
18 ENTRY of Appearance by Nancy M Gerrity on behalf of Burlington Northern Santa Fe Railway Company (Gerrity, Nancy) (Entered: 08/13/2004)
19 REPLY to Response to Motion re 5 MOTION to Dismiss and Brief in Support filed by Burlington Northern Santa Fe Railway Company. (Gerrity, Nancy) (Entered: 08/13/2004)
20 ORDER denying 5 Motion to Dismiss filed by dft. Signed by Judge Ralph G. Thompson on 9/28/04. (cjs, ) (Entered: 09/28/2004)
21 MOTION to Withdraw as Attorney by Burlington Northern Santa Fe Railway Company. (Gerrity, Nancy) (Entered: 10/04/2004)
22 ORDER granting 21 Motion to Withdraw as Attorney. Attorney Nancy M Gerrity terminated . Signed by Judge Ralph G. Thompson on 10/5/04. (cjs, ) (Entered: 10/05/2004)
23 ANSWER to Complaint by Burlington Northern Santa Fe Railway Company.(Fields, Roberta) (Entered: 10/12/2004)
24 MOTION for Reconsideration of Order Denying Motion to Dismiss by Burlington Northern Santa Fe Railway Company. (Fields, Roberta) (Entered: 10/20/2004)
25 DOCKET: Scheduling Conference set for 12/2/2004 09:50 AM in Chambers before Honorable Ralph G. Thompson. Status Report due by 11/29/2004. (mb, ) (Entered: 11/01/2004)
26 RESPONSE in Opposition re 24 MOTION for Reconsideration of Order Denying Motion to Dismiss filed by Equal Employment Opportunity Commission. (Cole, Holly) (Entered: 11/05/2004)
27 ORDER denying 24 Dft's Motion for Reconsideration . Signed by Judge Ralph G. Thompson on 11/10/04. (cjs, ) (Entered: 11/10/2004)
28 JOINT DISCOVERY PLAN by Plaintiff Equal Employment Opportunity Commission. (Cole, Holly) (Entered: 11/22/2004)
29 JOINT STATUS REPORT of the parties by Plaintiff Equal Employment Opportunity Commission. (Cole, Holly) (Entered: 11/22/2004)

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11/30/2004 12/02/2004 12/02/2004 02/11/2005 02/14/2005 02/14/2005 05/02/2005 06/01/2005
06/02/2005

30 ENTRY of Appearance by Patricia L Franz on behalf of Burlington Northern Santa Fe Railway Company (Franz, Patricia) (Entered: 11/30/2004)
31 ENTRY of Appearance by Holly Waldron Cole on behalf of Equal Employment Opportunity Commission (Cole, Holly) (Entered: 12/02/2004)
32 MINUTE ORDER. Conference held. Parties are granted 120 days to conduct discovery on the question whether re someone as unable to perform train-service work is re the person as substantially limited in the major life activity of working. Dft to file motion for sumjgm. Pla to respond 30 days thereafter.. Signed by Judge Ralph G. Thompson on 12/2/04. (cjs, ) (Entered: 12/03/2004)
33 MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission. (Cole, Holly) (Entered: 02/11/2005)
34 ENTRY of Appearance by Toby W Costas on behalf of Equal Employment Opportunity Commission (Costas, Toby) (Entered: 02/14/2005)
35 ORDER granting 33 Motion to Withdraw as Attorney. Attorney Holly Waldron Cole terminated . Signed by Judge Ralph G. Thompson on 2/14/05. (cjs, ) (Entered: 02/14/2005)
36 MOTION for Summary Judgment by Burlington Northern Santa Fe Railway Company. (Attachments: # 1 Affidavit 1-Morgan Affidavit/Declaration# 2 Exhibit 2-Morgan Deposition# 3 Exhibit 3-Morgan Dep.Ex.8C# 4 Exhibit 4-Morgan Dep. Ex. 17)(Fields, Roberta) (Entered: 05/02/2005)
37 RESPONSE to Motion re 36 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Attachment 1-EEORESPONSEMSJPART2# 2 Attachment 2-EEOCRESPONSEMSJPART3# 3 Exhibit 4-EXHIBITPART1DEPOTERRYMORTAN# 4 Exhibit 5-EXHIBIT1PART2DEPOTERRYMORGAN# 5 Exhibit 6-EXHIBIT1PART3DEPOTERRYMORGAN# 6 Exhibit 7-EXHIBIT1PART4DEPOTERRYMORGAN# 7 Exhibit 8-EXHIBIT1PART5DEPOTERRYMORGAN# 8 Exhibit 9-EXHIBIT2EMPLOYMENTOPPORTUNITIESFORTRAINSERVICE# 9 Exhibit 10-EXHIBIT3DECLARATIONOFMARIABUCKLES51505# 10 Exhibit 11-EXHIBIT4JARRARDLTR# 11 Exhibit 12-EXHIBIT5EXEMPLARFAX# 12 Exhibit 13-EXHIBIT6DEFTSASWRINTERROG# 13 Exhibit 14-EXHIBIT7DECLARTOMFREEMAN# 14 Exhibit 15-EXHIBIT8BNSFLTR62703# 15 Exhibit 16-EXHIBIT9MEDICALRELEASES# 16 Exhibit 17-EXHIBIT10BUCKLESDECLARATION32505# 17 Exhibit 18-EXHIBIT11DECLARATIONOFLONG# 18 Exhibit 19-EXHIBIT14BNSFLTR52803# 19 Exhibit 20-EXHIBIT15EMPOWERMENTPOLICY# 20 Attachment 21-EEOCDECLARATIONPEGGYKIRKWOOD)(Costas, Toby) (Entered: 06/01/2005)
38 MOTION for Order To File Exhibits #12 & #13 to Response to Summary Judgment Out of Time by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 3-EXHIBIT12PART2A2EXPERTREPORT# 2 Exhibit

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06/06/2005 06/15/2005 06/16/2005 06/17/2005
07/01/2005 12/08/2005
12/16/2005 12/16/2005 12/22/2005 12/22/2005
12/22/2005

4-EXHIBIT12PART2BEXPERTREPORT# 3 Exhibit 1-EXHIBIT12PART1EXPERTREPORT# 4 Exhibit 5-EXHIBIT12PART3EXPERTREPORT# 5 Exhibit 6-EXHIBIT13PART1JOBROSTER# 6 Exhibit 7-EXHIBIT13PART2JOBROSTER# 7 Exhibit 8-EXHIBIT13PART3JOBROSTER# 8 Exhibit 9-EXHIBIT13PART4JOBROSTER# 9 Exhibit 10-EXHIBIT13PART4AJOBROSTER# 10 Exhibit 11-EXHIBIT13PART5JOBROSTER# 11 Exhibit 12-EXHIBIT13PART6JOBROSTER# 12 Exhibit 2-EXHIBIT12PART2A1EXPERTREPORT)(Costas, Toby) (Entered: 06/02/2005)
39 ORDER granting 38 Pla's Motion for Order to file Exh #12 and #13. Signed by Judge Ralph G. Thompson on 6/6/05. (cjs, ) (Entered: 06/06/2005)
40 MOTION for Leave to File Reply Brief by Burlington Northern Santa Fe Railway Company. (Fields, Roberta) (Entered: 06/15/2005)
41 RESPONSE to Motion re 40 MOTION for Leave to File Reply Brief filed by Equal Employment Opportunity Commission. (Costas, Toby) (Entered: 06/16/2005)
42 ORDER granting 40 Dft's Motion for Leave to File Reply. Dft's reply brief shall be filed no later than 10 days following the date of this order and shall consist of no more than 15 pages. . Signed by Judge Ralph G. Thompson on 6/17/05. (cjs, ) (Entered: 06/17/2005)
43 REPLY to Response to Motion re 36 MOTION for Summary Judgment filed by Burlington Northern Santa Fe Railway Company. (Fields, Roberta) (Entered: 07/01/2005)
44 ORDER granting 36 Dft Burlington's Motion for Summary Judgment. Because the mtn and preceding discovery are limited; the parties are directed to advise the court if there are any remaining issues for discovery and trial. The parties shal do so by written submission no later than 12/16/05 . Signed by Judge Ralph G. Thompson on 12/8/05. (cjs, ) (Entered: 12/08/2005)
45 JOINT STATUS REPORT to Court by Defendant Burlington Northern Santa Fe Railway Company. (Fields, Roberta) (Entered: 12/16/2005)
46 JUDGMENT in favor of dft Burlington Northern & Santa Fe Railway against plaEqual Employment Opportunity Comm. Signed by Judge Ralph G. Thompson on 12/16/05. (cjs, ) (Entered: 12/16/2005)
47 MOTION for Costs and Brief in Support by Burlington Northern Santa Fe Railway Company. (Fields, Roberta) (Entered: 12/22/2005)
48 BILL OF COSTS by Burlington Northern Santa Fe Railway Company. (Attachments: # 1 Attachment Itemization - Form AO 133# 2 Exhibit 1 - Invoice and Check Payable to LegaLink Los Angeles# 3 Exhibit 2 - Cost Table Listing)(Fields, Roberta) (Entered: 12/22/2005)
49 NOTICE OF BILL OF COSTS HEARING, Bill of Costs Hearing set for 1/26/2006 11:00 AM in Court Clerk's Office (mb, ) (Entered: 12/22/2005)

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01/26/2006 02/13/2006 02/13/2006 02/14/2006 02/17/2006 02/24/2006
02/24/2006
04/07/2006
01/03/2007

50 Costs Taxed in amount of $ 502.90 against Equal Employment Opportunity Comm (cjs, ) (Entered: 01/26/2006)
51 NOTICE by Equal Employment Opportunity Commission (Costas, Toby) (Entered: 02/13/2006)
52 NOTICE OF APPEAL as to 46 Judgment by Equal Employment Opportunity Commission. (dl, ) (Entered: 02/14/2006)
53 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 52 Notice of Appeal (dl, ) (Entered: 02/14/2006)
54 USCA Case Number 06-6074 for 52 Notice of Appeal filed by Equal Employment Opportunity Commission,. (dl, ) (Entered: 02/17/2006)
55 TRANSCRIPT Order Form by Equal Employment Opportunity Commission that transcripts are not necessary. See order form for dates and proceedings. (Costas, Toby) (Entered: 02/24/2006)
56 DESIGNATION of Record on Appeal by Equal Employment Opportunity Commission re 52 Notice of Appeal (Attachments: # 1 Attachment DOCKET SHEET)(Costas, Toby) (Entered: 02/24/2006)
57 TRANSCRIPT LETTER advising that transcripts are not necessary re 52 Notice of Appeal filed by Equal Employment Opportunity Commission,. The record is ready for appeal purposes. (dl, ) (Entered: 04/07/2006)
58 MANDATE From USCA - The judgment of the district court is AFFIRMED 52 Notice of Appeal filed by Equal Employment Opportunity Commission (dl, ) (Entered: 01/03/2007)

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 F I LED
United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS November 29,2006

FOR THE TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plainti ff-Appellant,

v.

No. 06-6074

(D.C. No. 04-CV-660-T)

BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY,

A

(W.D. Okla.) t'rUecopy

_

Teste

'"'--

Defendant-Appellee.

CElliesrakb,euth.sA. -CSoluirut mot-:a- ker'-

Appeals,
--------------1'nl!:::::y---=.,;f\~

Tentti-/'G-- imi"it

___ \(W.

ORDER AND JUDGMENT*(~r.>utyClerk

Before O'BRIEN and BRORBY, Circuit Judges, and BROWN:* District Judge.

The Equal Employment Opportunity Commission (EEOC) brought this action on behalf of Thomas Freeman, who applied to Burlington Northern and Santa Fe Railway Company (Burlington) for the position of conductor trainee.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1 (G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
** The Honorable Wesley E. Brown, Senior District Judge, District of Kansas, sitting by designation.

The EEOC now appeals the district court's entry of summary judgment on its claim that Burlington's failure to hire Mr. Freeman violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. See EEOC v. Burlington N. & Santa Fe Ry. Co., 406 F. Supp. 2d 1228 (W.D. Okla. 2005). We affirm.
I. After completing a six-week course designed to train individuals to be conductors and while working as a conductor trainee for a smaller railroad, Mr. Freeman applied to Burlington for its posted openings for the position of conductor trainee. At Burlington, a conductor trainee sets or releases hand brakes and perform other duties. The employee is required to "ride[] moving car by hanging on grab irons or ladder, sometimes for extended period of time." Jt. App. at 126, 130. Burlington offered the job to Mr. Freeman, conditioned on his passing a physical examination, strength test, drug screen, and background check. Mr. Freeman apparently passed all these tests. On a medical questionnaire, however, Mr. Freeman explained that he had previously suffered an injury to his left arm. This statement prompted concern on the part of Burlington's hiring officer. To provide further medical information, Mr. Freeman consulted with his orthopedist, took a grip-strength test, and obtained the orthopedist's written opinion that he was "able to pursue any type of employment that he so desires including .... hanging from the side of railroad cars," with no medical restrictions. Id. at 232. Nevertheless, Dr. Jarrard,
-2-

a Burlington medical officer, conducted his own review of the medical records. He decided that Mr. Freeman had a weakness in his left arm and diminished grip strength in his left hand, a medical condition that "creates a significant risk that a serious or potentially fatal accident may occur" while hanging from "the side of moving train cars using only one arm for support." Id. at 224. Dr. Jarrard therefore concluded that Mr. Freeman was not qualified for the conductor-trainee position or any other train-service job, which all require hanging from a moving train.
Mr. Freeman filed an EEOC charge alleging disability discrimination on the part of Burlington. The EEOC found reasonable cause to believe that an ADA violation had occurred and pursued Mr. Freeman's claim in this lawsuit. The parties' filings narrowed the issue to whether Burlington violated the ADA by regarding Mr. Freeman as an individual with a physical impairment. Id. at 25. I The parties conducted limited discovery and, on Burlington's motion for summary judgment, they "fully briefed this issue" and compiled "an extensive record." Burlington N. & Santa Fe Ry. Co., 406 F. Supp. 2d at 1230.
II. In evaluating the EEOC's claim, the district court applied the well-established framework recently summarized in EEOC v. Heartway Corp.,
Neither of the parties argued that the perceived weakness amounted to an actual disability.
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I
Nos. 05-7011 & 05-7016, 2006 WL 3030562 (lOth Cir. Oct. 26, 2006). A claim under the ADA requires the EEOC "to prove, inter alia, that [plaintiff] had a disability." Id. at *3. "The ADA broadly defines 'disability'" to include "being regarded as having ... an impairment" that substantially limits one or more of an individual's major life activities." Id. (quoting 42 U.S.C. § 12102(2)). As in Heartway, "[t]he only major life activity at issue in this case is the activity of working." Id. at *3. A claim that the employer regarded a plaintiff as substantially limited in the major life activity of working '''takes a plaintiff to the farthest reaches of the ADA.'" Id. at *4 (quoting Ross v. Campbell Soup Co., 237 F.3d 701,709 (6th Cir. 2001)). The required evidentiary showing is "particularly difficult," but not "insurmountable." Id. at *4, *5.
"The applicable EEOC regulations specify that the 'regarded as' standard may be met when a person' [h]as a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation.'" Id. at *3 (quoting 29 C.F.R. § 1630.2(1)).
"[W]ith respect to the major life activity of working,' [t]he term "substantially limit[ed]" means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Id. at *3-*4 (quoting § l630.2U)(3)(i)).
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A determination of the employer's perception "is strongly subjective, [but] the question of what constitutes a 'class of jobs'" presents "an objective question." Id. at *5. "[T]here need not be evidence that the employer knew or believed that the group of jobs from which the employer viewed the employee as restricted constituted (or included) a 'class of jobs. '" Id.
In addressing the meaning of "class of jobs" under the ADA, the Supreme Court has explained:
To be substantially limited in the major life activity of working, ... [an employee] must be precluded from more than one type of job, a specialized job, or a particular job of choice. Ifjobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs. Sutton v United Air Lines, Inc., 527 U.S. 471, 492 (1999). In like fashion, the
EEOC regulations define the term "as' [t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment.'" Heartway Corp., 2006 WL 3030562, at *5 (quoting 29 C.F.R. § 1630.2U)(3)(ii)(B)) (further quotations omitted). Although not an "onerous evidentiary showing," the plaintiff must "relate the characteristics of the 'class' ... ofjobs to the performance-restricting consequences of [his] perceived impairment." Id. at *6 (citing 29 C.F.R. § 1630.2U)(3)(II)(B) & (C)).
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To prevail on its claim, the EEOC was required to demonstrate that Burlington viewed the perceived left-arm and grip-strength weakness as significantly restricting Mr. Freeman's ability to perform a class of jobs. 2 More particularly, the issue before the district court on summary judgment was whether the EEOC's evidence would have allowed a reasonable jury to conclude that "Burlington's decision regarding [Mr.] Freeman applies to a 'class of jobs.'" Burlington N. & Santa Fe Ry. Co., 406 F. Supp. 2d at 1233.
III.
Mr. Freeman applied for one job, that of conductor trainee. This is a position in the Burlington job category of train service, which also includes conductor, brakeman, switchman/switch foreman, and hostler. All these positions involve holding onto the grab bar or ladder on the exterior of a moving train as a job requirement.
In the district court, the EEOC argued that Burlington regarded Mr. Freeman as disqualified from train service jobs and also a number of other positions which sometimes necessitate climbing onto a train, grabbing with one hand, or riding on the exterior of the train. According to the EEOC, adding these positions together meant that "fully 93 percent of all [Burlington] jobs are unattainable by [Mr.] Freeman." Jt. App. at 154. The district court, however,
2 Although the EEOC asserted in the district court that Burlington regarded Mr. Freeman as disqualified from performing a broad range of jobs in various classes, it does not advance that argument on appeal. Aplt. Br., 14 at n.3.
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I
rejected the EEOC's attempt to broaden the class because none of the other jobs expressly required the ability to hold onto the exterior of a moving train.
And the district court concluded that, standing alone, "the category of train service [did not] constitute a class of jobs as that term is defined by the ADA." Burlington N. & Santa Fe Ry. Co., 406 F. Supp. 2d at 1237. Synthesizing ADA case law, the district court observed that "where an individual cannot perform a specific required task in a particular position or positions but can perform other tasks, he is not considered excluded from a 'class of jobs. '" ld. at 1235. See also Murphy v. United Parcel Serv., 527 U.S. 516, 524 (l999) (mechanic's inability to obtain certification to drive commercial vehicles did not amount to a showing that employer regarded him as being unable to perform a class of mechanic jobs); Rakity v. Dillon Cos., 302 F.3d 1152, 1164 (lOth Cir. 2002) (employer's belief that plaintiff could not perform heavy lifting did not amount to a showing that employer regarded him as unable to perform a broad class of grocery clerk jobs); Sorensen v. Univ. of Utah Hasp., 194 F.3d 1084, 1089 (lOth Cir. 1999) (flight nurse disqualified following a MS diagnosis but allowed to perform regular nursing jobs did not establish she was precluded from a substantial class of jobs); MacDonald v. Delta A ir Lines, Inc., 94 F .3d 1437, 1445 (lOth Cir. 1996) (position requiring an aircraft mechanic to taxi aircraft as is "a single, particular job," not "a class of jobs"). In sum, the record lacked evidence that Burlington
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perceived Mr. Freeman as ineligible for a "class of jobs," as the term is used in the ADA.
IV. On appeal, the EEOC has shifted its theory on the composition of class of jobs. It now points out that Burlington's labor agreement provides that train service is a prerequisite to a position in engine service, a category that includes the jobs of engineer, engine foreman, fireman, and yardmaster.3 These jobs, the EEOC argues, should be tallied with train-service positions to show that Mr. Freeman was disqualified from 47% of jobs held by Burlington's workforce. It adds that the proposed class corresponds to a recognized occupational classification. "We consider each case individually in determining whether to exercise our discretion to consider a question raised for the first time on appeal. Such determination must begin with recognition that sound policy supports the proposition that an appellate court will not consider an issue raised for the first

3

We note, as did the district court, the record does not demonstrate that

engine service requires the physical abilities of train service and it does show that

train service requires additional training, knowledge, and skills. Burlington N. &

Santa Fe Ry., 406 F. Supp. 2d at 1231, n.2. During agency proceedings, however,

"Burlington included [engineer] in the train service category because the

collective bargaining agreement ... specifies that the position ... is the final step

in a progression which requires that, to be eligible for training as a[n] ...

engineer, an individual must have held the positions of Conductor

Trainee/Conduct or Brakeman/Switchman." Burlington N. & Santa Fe Ry.,

406 F. Supp. 2d at 1231, n.2.

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. ,
time on appeal." Gorman v. Carpenters' & Millwrights' Health Benefit Trust Fund, 410 F .3d 1194, 1202 (lOth Cir. 2005) (quotation omitted). "This rule is particularly apt when dealing with an appeal from a grant of summary judgment, because the material facts are not in dispute and the trial judge considers only opposing legal theories." Id. (quotation omitted).
The EEOC contends that it sufficiently preserved its appellate argument that the engine-service positions in line of progression with train-service jobs should be included in the proposed class of jobs. We have reviewed the EEOC's district court briefs, along with its expert report and appended exhibits without encountering this contention. We decline to consider the EEOC's new theory on appeal.4 We AFFIRM.
Entered for the Court
Wade Brorby Circuit Judge

4

We do note, however, that the EEOC's appellate brief provides no

statutory, regulatory, or case law supporting its proposition that all jobs in a

career progression should be included in a class of jobs for purposes of an ADA

analysis. The EEOC's argument is inconsistent with the need to show that the

proposed class includes only "'jobs utilizing similar training, knowledge, skills or

abilities.'" Heartway Corp., 2006 WL 3030562, at *5 (quoting 29 C.F.R.

§ l630.2U)(3)(ii)(B)).

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Elisabeth A. Shumaker Clerk of Court

United States Court of·Appeals for the Tenth Circuit
OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303)844-3157

Douglas E. Cressler Chief Deputy Clerk

December 26, 2006

Mr. Robert D. Dennis Clerk United States District Court for the W. District of Oklahoma 200 NW Fourth Street Room 1210 United States Courthouse Oklahoma City, OK 73102

Re:

06-6074, Equal Employment Opp v. Burlington Northern

Dist/Ag docket: 04-CV-660-T

Dear Clerk: Enclosed for the clerk of the trial court or the named agency,
is a certified copy of the order and judgment filed in this case which is issued as the mandate of this court. See Fed. R. App. P. 41(a). Please file it in the records of your court or agency.

Please contact this office if you have questions. Sincerely, Elisabeth A. Shumaker Clerk, Court of Appeals

clk:cs
cc: Toby Costas Dori K. Bernstein Bryan P. Neal Lawrence M. Stroik Roberta Browning Fields Stephen F. Fink

By: ~
Deputy Clerk