NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES BLANKINSHIP,

Plaintiff

- Appellant,

v. UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation,

Defendant

- Appellee. No. 22

- 16849
D.C. No. 4:21

- cv - 00072

- RM

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding Argued and Submitted February 14, 2024 San Francisco, California Before: S.R. THOMAS, HAMILTON, * * and CHRISTEN, Circuit Judges. This appeal is controlled by our opinion issued today in DeFries v. Union Pacific Railroad Co. ,



### __ F.4th



### __ , No. 23

- 35119 (9th Cir. Ju ne 1 4 , 2024 ). Like plaintiff DeFries, p laintiff

- appellant James Blankinship worked as a conductor for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable David F. Hamilton, United States Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, sitting by designation. 

# FILED

JUN 14 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

defendant

- appellee Union Pacific Railroad Company

. After failing Union Pacific’s routine color

- vision testing , Blankinship was routed into Union Pacific’s employee health screening system, the fitness

- for

- duty program. Wh ile undergoing a fitness

for

- duty evaluation, Blankinship failed Union Pacific’s follow

- up color

- vision field test and was diagnosed by Union Pacific’s Chief Medical Officer with a “Color Vision Deficit” that the company deemed “ unable to be accommodated .” As a result, he was removed from his position , and Union Pacific imposed permanent work restrictions that barred him from working any position that required the identification of traffic signals. Blankinship attempted to find other positions within the company but was unsuccessful, and Union Pacific’s permanent work restrictions have remained in place.
In DeFries , we detailed the history of the Harris v. Union Pacific Railroad
Co. class action , alleging violations of the Americans with Disabilities Act. In
Harris , the plaintiffs’ operative complaint alleged a class that all parties agree included color

- vision plaintiffs like Blankinship , but later in the litigation, class counsel moved for class certification on a narrower definition . The district court certified a class based on that narrower definition, but t hat certification was later reversed by the Eighth Circuit. Harris v. Union Pacific Railroad Co. , 329 F.R.D. 616, 628 (D. Neb. 2019) , re v’d, 953 F.3d 1030, 1032 (8th Cir. 2020). Plaintiff Blankinship is situated identically to DeFries, except that he suffered adverse3

employment actions earlier than DeFries , before the certification of the Harris class. As in DeFries , Blankinship ’s individual claims were timely if American Pipe tolling extended for him until the Eighth Circuit reversed the class certification. See generally American Pipe & Construction Co. v. Utah , 414 U.S. 538, 55 2

– 5 4 (1974); Crown, Cork & Seal Co. , Inc. v. Parker , 462 U.S. 345, 354 (1983). This case, DeFries , and Donahue v

. Union Pacific Railroad Co. , No. 22

- 168 4 7 , were all argued to this panel on February 14, 2024. In all aspects relevant to this appeal, Blankinship and the plaintiffs in Donahue are situated identically to the plaintiff in DeFries

. U nder our decision in DeFries , plaintiff Blankinship was entitled to rely on American Pipe tolling until the Eighth Circuit issued its mandate decertifying the Harris class. We REVERSE summary judgment in favor of Union Pacific and REMAND for f urther proceedings consistent with this order, without reaching the alternative grounds for summary judgment that the district court did not reach.