IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

Michael Cushman, 

Plaintiff,

v.

Union Pacific Railroad Co., 

Defendant. 

Case No. 8:23-cv-196

COMPLAINT

JURY TRIAL DEMANDED

Plaintiff Michael Cushman (“Cushman”) files this Complaint against Defendant 

Union Pacific Railroad Co. (“Union Pacific” or “Defendant”) for damages resulting from 

its violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., as amended 

(“ADA”). 

PRELIMINARY STATEMENT

1. Beginning in 2014, Union Pacific implemented company-wide changes to

its fitness-for-duty program (“Fitness-for-Duty”). As a result of these changes, Union 

Pacific imposed a blanket requirement that employees in certain positions disclose 

specified health conditions—even when the condition had no impact on the employee’s 

ability to safely perform his or her job. This requirement was needlessly invasive and 

violated the ADA by itself, but Union Pacific made matters worse by imposing a policy 

that automatically removes employees who disclose health conditions, or who Union 

Pacific suspects may have health conditions, from service. Union Pacific then subjects the 

employee to a Fitness-for-Duty evaluation, again regardless of whether the employee has 

been safely performing the essential functions of his or her job. These evaluations do not 

assess whether an employee is capable of performing the essential functions of his or her 

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position, and Union Pacific does not conduct physical examinations of employees. 

Furthermore, Union Pacific routinely disregards the opinions of outside doctors who do 

conduct physical evaluations of the employees. Instead, Union Pacific demands medical 

information from the employee and conducts a “file review,” regularly and arbitrarily 

concluding that the employee is unfit for duty because of a disability, and issuing 

unnecessary work restrictions it then refuses to accommodate. 

2. In February 2016, several Union Pacific employees commenced a classaction disability discrimination lawsuit against Union Pacific, alleging that Union Pacific’s 

Fitness-for-Duty policies and practices constituted a pattern or practice of discrimination 

under the ADA. See Quinton Harris et al. v. Union Pacific Railroad Company, Case No. 

8:16-cv-381 (D. Neb.). The District of Nebraska certified the class in February 2019; 

however, the Eighth Circuit Court of Appeals reversed the certification decision in March 

2020. 

3. Cushman is a victim of the same discriminatory Fitness-for-Duty policies 

and practices alleged in Harris. Despite being qualified and safely performing his job 

without incident, Cushman was removed from service for a Fitness-for-Duty evaluation 

under the new program and excluded from work at Union Pacific because of a disability. 

Cushman was a class member in Harris, and now timely brings this individual legal action.

JURISDICTION AND VENUE

4. This Court has jurisdiction under 28 U.S.C. § 1331 because Union Pacific 

violated the ADA.

5. Venue is proper under 28 U.S.C. § 1391(b)(1), because defendant is 

headquartered in Omaha, Nebraska.

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6. Venue is proper under 42 U.S.C. § 2000e-5(f)(3) because unlawful

employment practices were committed by Union Pacific in Omaha, Nebraska, because

employment records relevant to defendant’s unlawful employment practices are 

maintained and administered in Omaha, Nebraska, and because Union Pacific’s principal 

office is in Omaha, Nebraska.

THE PARTIES

7. Cushman resides in San Antonio, Texas. He was an employee of Union

Pacific working out of San Antonio, Texas.

8. Union Pacific is a railroad carrier engaged in interstate commerce and has 

operations in San Antonio, Texas and is headquartered in Omaha, Nebraska.

FACTUAL ALLEGATIONS

UNION PACIFIC’S FITNESS-FOR-DUTY POLICIES AND PRACTICES

9. Union Pacific’s Medical Rules, as reviewed and revised on February 1, 

2014 (attached as Exhibit A), apply to all Union Pacific employees across the country. 

They outline the Fitness-for-Duty program at Union Pacific.

10. The Medical Rules require, among other things, that all employees in 

Telecom positions, Supply Department field positions, Operating Department field 

positions (including Transportation, Engineering Services and Mechanical positions), and 

Dispatcher positions disclose “any new diagnosis, recent events, and/or change in the 

following conditions”—which Union Pacific labels “Reportable Health Events.” (Exhibit 

A). This includes, but is not limited to, loss of consciousness no matter the duration.

11. Union Pacific’s Fitness-for-Duty and “Reportable Health Events” policies 

are even broader in practice than the Medical Rules reflect. Union Pacific routinely triggers 

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the Fitness-for-Duty process for employees who have never indicated they are unable to 

perform the essential functions of their jobs, simply because Union Pacific learns or 

suspects that the employee has, or has had in the past, a listed or non-listed health condition, 

or because a manager refers the employee to Health and Medical Services based on a belief 

that an employee may have such a health condition.

12. Union Pacific also maintains other unlawful policies and qualification 

standards related to Fitness-for Duty that are not included within the Medical Rules. For 

example, Union Pacific uses a “1% rule” that disqualifies from service any employee who 

Union Pacific suspects or believes may be at more than a 1% risk of sudden incapacitation. 

Union Pacific also requires employees to undergo exercise tolerance testing and then 

disqualifies from service any employee whose test results are not “normal,” based on an 

indication that the employee may have a cardiac condition, however minor. On information 

and belief, Union Pacific maintains other, similar policies that it uses to screen out 

employees with disabilities for failing to meet a discriminatory qualification standard.

13. When a Fitness-for-Duty evaluation is triggered, the employee must:

Stay off work (not to report to work or mark up for work) until Health and Medical

Services has completed a Fitness-for-Duty evaluation for that particular health

event and has provided the employee’s Supervisor with notification that the

employee is fit for duty and able to return to his/her job.

Notify his/her Supervisor that he/she has had a Reportable Health Event that

requires Health and Medical Services to complete a Fitness-for-Duty determination

prior to the employee being able to work.

Notify Health and Medical Services that he/she has had a Reportable Health

Event that requires Health and Medical Services to complete a Fitness-for-Duty

evaluation.

(Exhibit A.)

14. These Fitness-for-Duty evaluations are not individualized assessments of 

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the employee’s ability to safely perform the essential functions of the employee’s job.

15. Union Pacific does not directly examine employees during Fitness-ForDuty evaluations.

16. Union Pacific routinely disregards the opinions of the employee’s treating 

medical provider(s) and other medical providers who have physically examined the 

employee and instead makes broad requests for medical information, including medical 

records, from the employee.

17. Once Union Pacific receives the medical information, Union Pacific’s 

Health and Medical Services Department, located in Omaha, Nebraska, conducts a “file 

review” and issues a Fitness-for-Duty determination that the employee is either fit for duty, 

fit for duty with restrictions, or unfit for duty.

18. Union Pacific’s Health and Medical Services Department routinely issues 

Fitness-for-Duty determinations that disqualify employees from their positions because of 

a disability, even though the disability does not affect the employee’s ability to safely 

perform the essential functions of the employee’s job (or other positions for which the 

employee may also be qualified).

19. The Health and Medical Services Department also uses discriminatory 

qualification standards, tests, and/or other criteria to exclude individuals with disabilities 

from their positions. 

20. When issuing Fitness-for-Duty determinations, the Health and Medical 

Services department relies on standardized protocols for employees with certain broad 

categories of health conditions or treatments, and assigns standardized work restrictions to 

employees.

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21. For example, as part of these standardized protocols, the Health and Medical 

Services Department regularly relied on the Federal Motor Carrier Safety Administration 

(“FMCSA”) 2014 Medical Examiner’s Handbook (“The 2014 Medical Examiner’s 

Handbook”), which the company downloaded from the FMCSA website, to determine 

which health conditions required work restrictions, which standard restrictions to impose, 

and how long those restrictions should remain in place.

22. Union Pacific’s Chief Medical Officer Dr. Holland described the 2014 

Medical Examiner’s Handbook as “one of the sources we think is the best.”

23. The recommendations contained in the 2014 Medical Examiner’s Handbook, 

however, did not apply to railroad workers, but instead provided non-binding guidance to 

FMCSA medical examiners for use in medical certification of drivers operating a 

commercial vehicle in interstate commerce.

24. In addition, by December 2014, the FMCSA withdrew the 2014 Medical 

Examiner’s Handbook from its website and no longer endorsed it for use for commercial 

driver certifications. Upon information and belief, the 2014 Medical Examiner Handbook 

was never reindorsed by the FMCSA once it was removed from the website. 

25. By at least 2015, Dr. Holland and Union Pacific learned that the FMCSA 

removed the Handbook from its website, and it was no longer endorsed for use. 

26. Despite this, Union Pacific continued to rely on the outdated Handbook as 

a basis to assign standardized work restrictions for its employees, including workers who 

are not subject to FMCSA medical certification requirements.

27. Union Pacific also represented to Courts that the 2014 Medical Examiner 

Handbook was reliable guidance and supported its decisions to impose standardized work 

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restrictions for its employees: 

a. “Union Pacific concluded that the 1% level of acceptable risk for sudden 

incapacitation is consistent with the acceptable risk threshold recommended 

by the FMCSA Medical Review Board and the 2014 version of the online 

FMCSA Medical Examiner Handbook[.]” Def.’s Br. in Opp’n to Pl.’s Mot.

for Class Certification at 21, Harris et al. v. Union Pacific Railroad Co., 

8:16-cv-00381-JFB-SMB, ECF No. 259 (internal quotations omitted). 

b. “In 2014 the FMCSA issued Medical Examiner Handbook (FMCSA 2014) 

to provide medical examiners guidance for making medical fitness-for-duty 

recommendations for multiple health conditions that can impair the safety 

for commercial vehicle drivers. These and other recent FMCSA guidance 

documents, have served [] as reference materials and a general model for 

developing the Medical Fitness-for-duty Guidelines presented here.” Dr. 

Holland Rebuttal Expert Report, May 11, 2018, Harris et al. v. Union 

Pacific Railroad Co., 8:16-cv-00381-JFB-SMB, ECF No. 249-16. 

c. “Since 2014, Union Pacific has relied on the FMCSA’s guidelines, as 

reflected in its Medical Examiner Handbook, in determining whether 

employees with epilepsy, a single unprovoked seizure, or other seizure risks 

who work in safety sensitive positions have an unacceptably high seizure 

risk such that it is appropriate to impose work restrictions.” Decl. of Dr. 

John Holland dated Oct. 2, 2018 at 6, Harris et al. v. Union Pacific Railroad 

Co., 8:16-cv-00381-JFB-SMB, ECF No. 261-71. 

d. “[E]mployers may rely on their own physicians and FMCSA guidelines to 

make this sort of reasonable, safety-based medical judgment about an 

employee who drives commercial vehicles.” Def.’s Br. in Supp. of Mot. for 

Summ. J. at 2, Miller v. Union Pacific Railroad Co., 8:20-cv-00311-JFBSMB, ECF No. 380. 

28. Through its Fitness-For-Duty program, Union Pacific removes employees 

from service based on medical conditions it learns or believes an employee may have or 

may have had in the past, whether or not such conditions actually interfere with the 

employee’s ability to perform the essential functions of their position, and without making 

a good-faith effort to determine whether a reasonable accommodation exists.

29. As a result of the conduct described above, Union Pacific employees who have 

never had a problem performing the essential functions of their jobs have been forced to 

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disclose sensitive medical information, stay off work without pay, and many have lost their 

livelihoods.

PLAINTIFF MICHAEL CUSHMAN

30. Cushman was hired by Union Pacific on February 9, 1999, as a trainman,

then promoted to a switchman, and then a conductor up until September 2004. 

31. Most recently, starting in September 2004, Cushman worked for Union 

Pacific as a locomotive engineer based out of San Antonio, Texas. He worked ably in and 

around trains for over sixteen years without incident. 

32. On August 3, 2015, Cushman lost consciousness while at work in his parked 

train engine in Laredo, Texas. Before losing consciousness, he felt nauseated for several 

minutes and broke into a cold, clammy sweat, so he opened a window. 

33. After losing consciousness, Cushman was seen in a hospital and diagnosed 

with syncope. 

34. Because Cushman lost consciousness while at work, Union Pacific

immediately removed him from work without pay. While held out of work, he sought 

treatment from medical specialists regarding this loss of consciousness incident.

35. By November 2015, Cushman’s medical specialists and physician cleared 

him to return to work with no restrictions. His treating neurologist, Dr. Ladislau Albert, Jr.,

and cardiologist, Dr. Meeney Dhir, cleared him to return to work on October 7, 2015 and 

October 26, 2015, respectively. Cushman’s treating physician, Dr. David Sandercock,

cleared him to return to work with no restrictions on November 4, 2015. 

36. Despite these clearances, in a “Fitness-for-Duty Determination” 

memorandum dated December 16, 2015, Union Pacific’s Chief Medical Officer, Dr. 

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Holland, stated that Cushman “requires permanent work restrictions for sudden 

incapacitation risks.” 

37. Dr. Holland based this decision, at least in part, on a determination from Dr. 

Reed Wilson, a neurology consultant for the company, who reviewed Cushman’s medical 

records, including his clearances to return to work, and labeled Cushman as having a 

“moderate to high” risk of sudden incapacitation. 

38. The permanent restrictions listed in the December 16, 2015 memorandum 

were as follows: (1) Not to operate company vehicles/on-track or mobile equipment/forklifts; (2) Not to work on or near moving trains, freight cars, or locomotives, unless protected 

by barriers; (3) Not to operate cranes, hoists, or machinery, if these activities might create 

a risk of harm to others or a risk of catastrophic injury to the employee; (4) Not to work at 

unprotected heights, over 4 feet above the ground; (5) If a new job assignment is 

considered, then HMS should review the functional job demands to determine if he can 

safely perform the essential functions of the job.

39. Dr. Holland further stated in the December 16, 2015 memorandum that 

Cushman’s restrictions were consistent with recommendations from the FMCSA.

40. At no time during Union Pacific’s Fitness-for-Duty Determination process, 

or after, did Dr. Holland, Dr. Wilson, or any other doctor affiliated with Union Pacific 

physically examine Cushman. 

41. In a letter dated December 21, 2015, and signed by Terry Owens, Director 

of Disability Management, Union Pacific further informed Cushman that his “supervising 

department has been unable to identify a reasonable accommodation” and enclosed a 

document entitled, “What are my options now that I am unable to return to my railroad 

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job?”

42. After Cushman was informed of his permanent work restrictions, he sought 

an accommodation to work in other positions at Union Pacific that would fit within his 

restrictions. He applied for over a dozen jobs at Union Pacific and was interviewed multiple 

times. However, he did not receive any job offers at Union Pacific and so he went to work 

elsewhere as an Operator for Freedom Terminal Services, making substantially less than 

what he earned as a locomotive engineer at Union Pacific. 

43. After nearly four years, Union Pacific finally allowed Cushman to return to 

work as a locomotive engineer on May 15, 2019. This was after Cushman inquired about 

returning to work and submitted further medical records. 

44. Since the 2015 incident, Cushman remained capable of working as a 

locomotive engineer with Union Pacific. 

45. On February 19, 2016, counsel for Cushman, on behalf of six named 

plaintiffs and those similarly situated, filed a First Amended Complaint against Union 

Pacific in the Western District of Washington, alleging disability discrimination in 

violation of the ADA, along with state law. The case was thereafter transferred to the 

District of Nebraska. See Harris et al. v. Union Pacific Railroad Company, Case No. 8:16-

cv-381 (D. Neb.).

46. Because he was a class member in the Harris case, Cushman’s disability 

discrimination claims have been subject to tolling during the pendency of litigating the 

class-wide claims, pursuant to the Supreme Court’s ruling in Crown, Cork & Seal Co., Inc. 

v. Parker, 462 U.S. 345 (1983).

47. This Court certified the class action in February 2019; however, the Eighth 

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Circuit Court of Appeals reversed the certification decision on March 24, 2020. 

48. As a result of Crown Cork tolling, Cushman had three hundred (300) days 

from the date of the Eighth Circuit’s order to file a charge of discrimination with the Equal 

Employment Opportunity Commission (“EEOC”). Shortly after the Eighth Circuit issued 

its order reversing class certification, the parties entered into a tolling agreement, extending 

the statute of limitations for Cushman’s and other class members’ claims by an additional 

sixty (60) days. Cushman timely filed a charge of discrimination with the EEOC on April

10, 2020. On May 9, 2023, the EEOC issued a right-to-sue letter. Cushman now timely 

initiates the present lawsuit. 

CAUSES OF ACTION

COUNT I

VIOLATIONS OF THE ADA, 42 U.S.C. § 12112(a)

DISABILITY DISCRIMINATION—DISPARATE TREATMENT

49. Cushman incorporates the foregoing paragraphs by reference.

50. The ADA defines a disability as (A) a physical or mental impairment that 

impairs one or more major life activities; (B) a record of such impairment; or (C) being 

regarded as having such an impairment. 42 U.S.C. § 12102(1).

51. At all relevant times, Cushman was an individual with a disability as 

defined by the ADA.

52. At all relevant times, Cushman had the requisite skill, experience, 

education, and other job-related requirements of his position, could perform the essential 

functions of his position with or without reasonable accommodations, and was therefore a 

qualified individual under the ADA.

53. At all relevant times, Cushman could perform the essential functions of his 

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position, with or without reasonable accommodations.

54. Section 12112(a) of the ADA prohibits employers from discriminating 

against qualified individuals on the basis of disability in regard to job application 

procedures, the hiring, advancement, or discharge of employees, employee compensation, 

job training, and other terms, conditions, and privileges of employment.

55. Union Pacific discriminated against Cushman on the basis of disability by, 

among other things, removing him from service for years because of a disability.

56. Because Union Pacific violated 42 U.S.C. § 12112, Cushman has suffered 

and will continue to suffer loss of income, emotional distress, and other damages in an 

amount in excess of $75,000. Cushman is also entitled to attorneys’ fees and costs incurred 

in connection with these claims.

57. Union Pacific committed the above-alleged acts with reckless or deliberate 

disregard for the rights and safety of Cushman and others similarly situated. As a result,

Cushman is entitled to punitive damages.

COUNT II

VIOLATIONS OF THE ADA, 42 U.S.C. § 12112(b)(6)

DISABILITY DISCRIMINATION—DISPARATE TREATMENT

58. Cushman incorporates the foregoing paragraphs by reference. 

59. “ ‘[D]iscriminat[ing] against a qualified individual on the basis of disability’ 

includes...using qualification standards, employment tests or other selection criteria that 

screen out . . . an individual with a disability or a class of individuals with disabilities unless 

the standard, test or other selection criteria, as used by the covered entity, is shown to be 

job-related for the position in question and is consistent with business necessity[.]” 42 

U.S.C. § 12112(b)(6).

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60. Union Pacific discriminated against Cushman on the basis of disability by 

using facially discriminatory qualification standards, employment tests, and/or other 

selection criteria, as part of its Fitness-For-Duty program and related policies, that are 

intended to screen out individuals with disabilities, and which did screen out Cushman.

61. Union Pacific’s qualification standards are neither job-related nor consistent 

with business necessity.

62. Because Union Pacific violated 42 U.S.C. § 12112, Cushman has suffered 

and will continue to suffer loss of income, emotional distress, and other damages in an 

amount in excess of $75,000. Cushman is also entitled to attorneys’ fees and costs incurred 

in connection with these claims.

63. Union Pacific committed the above-alleged acts with reckless or deliberate 

disregard for the rights and safety of Cushman and others similarly situated. As a result, 

Cushman is entitled to punitive damages.

PRAYER FOR RELIEF

WHEREFORE, Cushman prays for judgment against Union Pacific as 

follows:

1. That the practices of Union Pacific complained of herein be determined and 

adjudged to constitute violations of the ADA;

2. An injunction against Union Pacific and its directors, officers, owners, agents, 

successors, employees and representatives, and any and all persons acting in 

concert with them, from engaging in each of the unlawful practices, policies, 

customs, and usages set forth herein;

3. For an award of damages arising from loss of past and future income, emotional 

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distress, and other compensatory damages in excess of $75,000.00;

4. Pre-judgment interest, as provided by law;

5. For Cushman’s costs, disbursements and attorneys’ fees pursuant to law;

6. For an award of punitive damages;

7. For all relief available under the ADA;

8. For such other and further relief available by statute; and

9. For such other and further relief as the Court deems just and equitable.

Date: May 15, 2023 NICHOLS KASTER, PLLP

s/Laura A. Baures

James H. Kaster* (MN # 53946) 

kaster@nka.com 

Lucas J. Kaster* (MN # 396251)

lkaster@nka.com

Laura A. Baures* (MN# 392081)

lbaures@nka.com

80 South Eighth Street 

4700 IDS Center 

Minneapolis, Minnesota 55402-2242 

Telephone: (612) 256-3200 

Fax: (612) 338-4878

*Admitted in D. Neb.

ATTORNEYS FOR PLAINTIFF

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