IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

Mathew Bray, 

Plaintiff,

v.

Union Pacific Railroad Co., 

Defendant. 

Case No. 8:23-cv-235

COMPLAINT

JURY TRIAL DEMANDED

Plaintiff Mathew Bray (“Bray”) 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 Co., 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. Bray 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, Bray 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. Bray 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. Bray resides in Walla Walla, Washington. He was an employee of Union

Pacific working in La Grande, Oregon.

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

operations in LaGrande, Oregon 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, eye surgeries for glaucoma, cataracts, or laser 

treatment of the cornea and/or retina.

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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 

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 

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

or because a manager refers the employee for a Fitness-for-Duty evaluation 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.

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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 

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 (“Health and Medical Services”), 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. Health and Medical Services routinely issues Fitness-for-Duty decisions

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. Health and Medical Services also uses discriminatory qualification 

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

their positions. 

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

Services relies on standardized protocols for employees with certain broad categories of 

health conditions or treatments, and it assigns standardized work restrictions to employees.

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

Services regularly relied on the Federal Motor Carrier Safety Administration (“FMCSA”) 

2014 Medical Examiner’s Handbook (“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 then-Chief Medical Officer Doctor John 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 intended 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 FMCSA never again endorsed the 

2014 Medical Examiner’s Handbook 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 no longer endorsed its use. 

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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, including in the Harris action, that 

the 2014 Medical Examiner’s Handbook was reliable guidance and supported its decisions 

to impose standardized work restrictions for its employees. For example: 

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. 

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.

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

their livelihoods.

PLAINTIFF MATHEW BRAY

30. Bray was hired by Union Pacific on January 5, 1998, as a switchman. He 

then became a brakeman and conductor before becoming a locomotive engineer. 

31. Most recently, Bray worked for Union Pacific as a locomotive engineer in 

La Grande, Oregon, and as a conductor in other locations. Over his 18-year career with 

Union Pacific, he worked ably and safely in and around trains. 

32. For many years, Bray lived and worked with an eye condition, pigmentary 

glaucoma, without incident. Bray’s pigmentary glaucoma is controlled with medication.

33. On or about July 21, 2016, Bray had surgery on his right eye to help relieve 

pressure in his eye caused by pigmentary glaucoma. He chose to have the surgery to help 

maintain his longevity in working for Union Pacific. 

34. After Bray’s medical leave for his eye surgery and related recovery, Union 

Pacific would not allow him to return to work without first submitting medical records for 

a Fitness-for-Duty evaluation, which he timely submitted. 

35. Bray’s treating ophthalmologist, Dr. Hanna Takasawga, M.D., cleared Bray

to return to work with no restrictions on September 22, 2016. 

36. Despite this clearance, on October 17, 2016, Union Pacific’s then-Chief 

Medical Officer, Dr. John Holland, placed permanent work restrictions on Bray that 

prohibited him from returning to work as either a locomotive engineer or conductor. 

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37. The permanent work restrictions Union Pacific imposed on Bray include: 

(1) Does not meet Federal Railroad Administration (FRA) medical standards as a 

locomotive engineer or conductor; (2) Not to do jobs that require the accurate identification 

of colored wayside railroad signal lights; and (3) If a new job assignment is considered, 

then Health and Medical Services should review the functional job demands to determine 

if the employee can safely perform the essential functions of the job. 

38. At no time during the Fitness-for-Duty process, or after, did Dr. Holland or 

any doctor affiliated with Union Pacific physically examine Bray. 

39. Upon information and belief, at no time during or after this process did Dr. 

Holland or any doctor affiliated with Union Pacific speak with any of Bray’s treating 

doctors, including Dr. Takasawga, who had cleared Bray to return to work. 

40. As a result of the onerous restrictions Union Pacific imposed, Bray

concluded it would be futile to continue to seek accommodations from Union Pacific to 

return to his position or to any other position with the Railroad.

41. In the time since it imposed permanent work restrictions on Bray, Union 

Pacific has persisted in its refusal to allow Bray to return to his job or to another position. 

42. Following his employment with Union Pacific, Bray has worked several 

jobs, including as a laborer at Crown Paper and Janitorial Supply Company. He also

applied for and receives Railroad Retirement Board (“RRB”) benefits in order to make 

ends meet. Bray earns substantially less than he did when he worked for Union Pacific. 

43. Bray remains capable of working in his former positions to this day.

44. On February 19, 2016, counsel for Bray, on behalf of six named plaintiffs 

and those similarly situated, filed a First Amended Complaint against Union Pacific in the 

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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 v. Union Pac. R.R. Co., Case No. 8:16-cv-381 (D. Neb.).

45. Because he was a class member in Harris, Bray’s disability discrimination 

claims have been tolled during the pendency of the class action, pursuant to the Supreme 

Court’s ruling in Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983).

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

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

47. As a result of Crown, Cork tolling, Bray 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 Bray’s and other class members’ claims by an additional sixty 

(60) days. Bray timely filed a charge of discrimination with the EEOC, on April 10, 2020. 

On May 25, 2023, the EEOC issued Bray a right-to-sue letter. Bray 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

48. Bray incorporates the foregoing paragraphs by reference. 

49. 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).

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50. At all relevant times, Bray was an individual with a disability as defined by

the ADA.

51. At all relevant times, Bray 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.

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

against a qualified individual 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.

53. Union Pacific discriminated against Bray on the basis of disability by, 

among other things, imposing permanent work restrictions on him disqualifying him from 

his position and others for which he was qualified.

54. Because Union Pacific violated 42 U.S.C. § 12112, Bray has suffered and 

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

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

connection with these claims.

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

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

is entitled to punitive damages.

COUNT II

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

DISABILITY DISCRIMINATION—DISPARATE TREATMENT

56. Bray incorporates the foregoing paragraphs by reference.

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57. “‘[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 . . . is shown to be job-related for the position 

in question and is consistent with business necessity[.]” 42 U.S.C. § 12112(b)(6).

58. Union Pacific discriminated against Bray 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 Bray.

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

with business necessity.

60. Because Union Pacific violated 42 U.S.C. § 12112, Bray has suffered and 

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

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

connection with these claims.

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

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

is entitled to punitive damages.

PRAYER FOR RELIEF

WHEREFORE, Bray 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;

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

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

5. For Bray’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: June 1, 2023 NICHOLS KASTER, PLLP

s/Jacob C. Harksen

James H. Kaster* (MN # 53946) 

kaster@nka.com 

Lucas J. Kaster* (MN # 396251)

lkaster@nka.com

Jacob C. Harksen* (MN # 0400097)

jharksen@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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