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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

ROBERT CARLTON,

Plaintiff, 

vs. 

UNION PACIFIC RAILROAD CO.,

Defendant.

NO. 8:23-CV-0211

MEMORANDUM AND ORDER ON 

DEFENDANT’S MOTION TO DISMISS

Plaintiff Robert Carlton has sued his former employer defendant Union Pacific Railroad 

Company under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Filing 1. Carlton 

is a former member of the now-decertified Harris class that sued Union Pacific for violations under 

the ADA. Filing 1 at 12 (¶ 59); Harris v. Union Pac. R.R. Co., 953 F.3d 1030 (8th Cir. 2020). 

Carlton brings two claims under the ADA against Union Pacific alleging disability discrimination 

due to disparate treatment. Filing 1 at 12–14 (¶¶ 62–75). Defendant seeks to dismiss Count II of 

the Complaint and parts of other claims. Filing 6. Plaintiff seeks oral argument on the Motion to 

Dismiss. Filing 12. For the reasons stated herein, the Court grants Defendant’s Motion to Dismiss 

and denies Plaintiff’s Motion for Oral Argument. 

I. INTRODUCTION

A. Factual Background

On a Motion to Dismiss, the facts are drawn from the Complaint. See Zutz v. Nelson, 601 

F.3d 842, 846 (8th Cir. 2010). Robert Carlton worked for Union Pacific between November 1992 

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and February 2016. Filing 1 at 8 (¶¶ 30, 34). On or around February 13, 2016, Carlton suffered a 

seizure at home in his sleep. Filing 1 at 8 (¶ 32). After Carlton reported the seizure, Union Pacific 

instructed him to take a six-month leave of absence and informed him that he must undergo a 

Fitness-for-Duty (FFD) evaluation before returning to work. Filing 1 at 8 (¶ 34). After this first 

seizure, Carlton sought medical treatment and received medical clearance to return to work with a 

30-day driving restriction. Filing 1 at 8 (¶ 33). In April 2016, while he was on medical leave of 

absence, Carlton suffered another seizure during which he dislocated his shoulder and was 

hospitalized. Filing 1 at 8 (¶ 35). After this second seizure, Carlton was prescribed anti-seizure 

medication and had not had a seizure as of the date of the filing of the complaint. Filing 1 at 8 (¶ 

36). Carlton’s neurologist cleared him to return to work without restrictions on or around July 

2016, approximately three months after his second seizure. Filing 1 at 9 (¶ 38). 

Union Pacific requested Carlton’s medical records to conduct his FFD evaluation. Filing 1 

at 9 (¶ 43). No doctor at Union Pacific physically examined Carlton or consulted with doctors who 

treated his seizures or shoulder. Filing 1 at 10–11 (¶¶ 49–51). Relying on Carlton’s medical 

records, a doctor for Union Pacific conducted Carlton’s FFD evaluation and concluded that Carlton 

had “new onset seizure disorder.”1 Filing 1 at 9–10 (¶ 45). The Union Pacific doctor then “imposed 

. . . work restrictions on Carlton on the basis that he was at risk for sudden incapacitation.” Filing 

1 at 10 (¶ 46). Initially, the restrictions could not be reviewed until 2026 or ten years after Carlton 

stopped taking anti-seizure medication, but the restrictions were later updated to be permanent. 

Filing 1 at 10–11 (¶ 47, 53). Carlton’s supervisor determined that Carlton’s work restrictions could 

not be accommodated for his position as a Foreman General or for several other positions and 

1 Carlton does not allege in the Complaint that he has or ever had “new onset seizure disorder.”

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accordingly removed him from service. Filing 1 at 11 (¶¶ 54–56). Despite this, Carlton alleges that 

he “could perform the essential functions of his position with or without reasonable 

accommodations” and “remains capable of working . . . in all of his previous positions with Union 

Pacific to this day.” Filing 1 at 11, 13 (¶ 57, 65). 

Carlton alleges that he experienced disability discrimination due to Union Pacific’s FFD 

policy. Filing 1 at 14 (¶ 72). The FFD policy applies “to all Union Pacific employees across the 

country.” Filing 1 at 3 (¶ 9). “Fitness for Duty” is defined in Union Pacific’s Medical Rules as 

“[a]bility to medically and functionally (including physical, mental, and/or cognitive function) 

safely perform the functions of a job, with or without reasonable accommodations and meet 

medical standards established by regulatory agencies in accordance with federal and/or state laws.” 

Filing 1-1 at 12. The FFD policy requires that “[i]f the employee experiences a [reportable] health 

event noted in Appendix B, the employee should not report for, or perform, his/her job until 

Fitness-for-Duty clearance has been provided for such work by [Union Pacific’s Health and 

Medical Services Department (HMS)].” Filing 1-1 at 3. “Reportable health events” include

diabetes, a “seizure of any kind,” heart attacks, and “[n]ew use of hearing aids.” Filing 1-1 at 13

(listing categories of conditions as “Cardiovascular,” “Seizure or Loss of Consciousness,” 

“Significant Vision or Hearing Change,” “Diabetes Treated with Insulin,” and “Severe Sleep 

Apnea”). The employee must also “[p]rovid[e], upon request, information from the employees 

[sic] health care provider.” Filing 1-1 at 3. After receiving an employee’s medical records, HMS 

“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.” Filing 1 at 5 (¶ 17). 

HMS relies on the Federal Motor Carrier Safety Administration (“FMCSA”) 2014 Medical 

Examiner’s Handbook to conduct FFD Evaluations, specifically “to determine which health 

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conditions required work restrictions, which standard restrictions to impose, and how long those 

restrictions should remain in place.” Filing 1 at 6 (¶ 21). Carlton alleges that the Handbook “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.” Filing 1 at 6 (¶ 23). He also alleges that, by 2015, HMS “learned” that the 

Handbook was “outdated” but continued to rely on it in its Medical Rules. Filing 1 at 6 (¶ 25).

Carlton also alleges that Union Pacific has unwritten “related policies” not in its Medical 

Rules that are also discriminatory. Filing 1 at 14 (¶ 72). These policies include a “1% rule” that 

Union Pacific “used to disqualify from service any employee who it believed had epilepsy, 

seizures, or a seizure risk, on the basis that they posed a greater than 1% risk for sudden 

incapacitation.” Filing 1 at 4 (¶ 12). Carlton alleges that the “1% rule” was also instituted in 

reliance on the FMCSA Handbook. Filing 1 at 7 (¶ 27).

B. Procedural Background

Prior to this suit, Carlton joined a class action suit (Harris) against Union Pacific alleging 

disability discrimination under the ADA. Filing 1 at 12 (¶ 59). An Amended Complaint was filed 

on behalf of the class in the District Court for the Western District of Washington on February 19, 

2016. Filing 1 at 11 (¶ 58); Harris v. Union Pacific R.R. Co., No. 16-381 (D. Neb. Feb. 19, 2016), 

ECF No. 20. The Amended Complaint described the class as:

Individuals who were removed from service over their objection, and/or suffered 

another adverse employment action, during their employment with Union Pacific 

for reasons related to a Fitness-for-Duty evaluation at any time from 300 days 

before the earliest date that a named Plaintiff filed an administrative charge of 

discrimination to the resolution of this action.

Case No. 16-381, ECF No. 20 at 17 (¶ 116). Among the many Counts asserted in the Amended 

Complaint were a disparate-treatment claim pursuant to 42 U.S.C. § 12112(a) and (b)(6), a

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disparate-impact claim pursuant to 42 U.S.C. § 12112(b)(6) and (b)(3), an unlawful-medicalinquiries claim pursuant to 42 U.S.C. § 12112(d)(4)(A), and a failure-to-accommodate claim

pursuant to 42 U.S.C. § 12112(b)(5)(A). Case No. 16-381, ECF No. 20 at 21–25 (¶¶ 136–163).

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The case was then transferred to this Court. Case No. 16-381, ECF No. 51 at 3.

The Harris plaintiffs sought class certification for their disparate-treatment claim but not 

on their disparate-impact, unlawful-medical-inquiries, or failure-to-accommodate claims before a 

different judge of this Court. Case No. 16-381, ECF No. 241 at 22. When seeking certification, the 

plaintiffs described the class as “[a]ll individuals who have been or will be subject to a fitness-forduty examination as a result of a reportable health event at any time from September 18, 2014 until 

the final resolution of this action.” Case No. 16-381, ECF No. 240 at 1. The class was certified in 

February 2019. See Case No. 16-381, ECF No. 307; Harris v. Union Pac. R.R. Co., 2020 WL 

4504392, at *1 (D. Neb. Aug. 5, 2020). The Eighth Circuit Court of Appeals reversed and 

decertified the class on March 24, 2020. Harris, 953 F.3d 1030. Carlton promptly filed a charge 

of discrimination with the EEOC on April 10, 2020, and the EEOC issued a right-to-sue letter on 

May 22, 2023. Filing 1 at 12 (¶ 61). Carlton filed a Complaint against Union Pacific with the Court 

on May 23, 2023. Filing 1.

Carlton alleges two counts of disability discrimination on disparate-treatment theories 

under the ADA. Count I asserts a claim under 42 U.S.C. § 12112(a), alleging that “Union Pacific 

discriminated against Carlton on the basis of disability by, among other things, removing him from 

2 The plaintiffs in Harris brought other claims, see Case No. 16-381, ECF No. 20, but only their ADA claims are 

of interest in Carlton’s lawsuit.

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service because of a disability.” Filing 1 at 13 (¶ 67). Count II asserts a claim under § 12112(b)(6), 

alleging:

Union Pacific discriminated against Carlton 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 

Carlton.

Filing 1 at 14 (¶ 72). In his prayer for relief, Carlton asks for monetary damages and other forms 

of relief, including an injunction to enjoin Union Pacific’s policies. Filing 1 at 14–15. 

On June 15, 2023, Union Pacific filed its Motion to Dismiss. Filing 6. Union Pacific seeks 

dismissal of any claim based on Carlton having an “actual disability” or a “record of disability” as 

defined by the ADA. Filing 6 at 1. Union Pacific also seeks dismissal of any claim that Union 

Pacific failed to grant Carlton a “reasonable accommodation” as required by the ADA. Filing 6 at 

1. Union Pacific does not otherwise challenge Count I of Carlton’s Complaint. See generally Filing 

6. On the other hand, Union Pacific argues that Count II of Carlton’s Complaint, although styled 

as a disparate-treatment claim, is actually a disparate-impact claim that is time-barred and must be 

dismissed. Filing 6 at 1.

II. ANALYSIS

A. Applicable Standards

The typical grounds for Rule 12(b)(6) motions are the insufficiency of the factual 

allegations offered to state claims. To state a claim, a complaint must contain “a short and plain 

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 

Nevertheless, “ʻthreadbare recitals of the elements of a cause of action’ cannot survive a [Rule 

12(b)(6)] motion to dismiss.” Du Bois v. Bd. of Regents of Univ. of Minnesota, 987 F.3d 1199, 

1205 (8th Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Instead, as the Eighth 

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Circuit Court of Appeals has explained, “A claim survives a Rule 12(b)(6) motion to dismiss only 

if the complaint’s nonconclusory allegations, accepted as true, make it not just ‘conceivable’ but 

‘plausible’ that the defendant is liable.” Mitchell v. Kirchmeier, 28 F.4th 888, 895 (8th Cir. 2022)

(quoting Iqbal, 556 U.S. at 680-83). To put it another way, a court “must determine whether a

plaintiff’s complaint ‘contain[s] sufficient factual matter, accepted as true, to state a claim to relief 

that is plausible on its face.’” Far E. Aluminium Works Co. v. Viracon, Inc., 27 F.4th 1361, 1364 

(8th Cir. 2022) (quoting Braden v. WalMart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)). Thus, 

“[a] claim is plausible when ‘the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.’” Christopherson v. 

Bushner, 33 F.4th 495, 499 (8th Cir. 2022) (quoting Iqbal, 556 U.S. at 678). In contrast, “ʻ[w]here 

a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the 

line between possibility and plausibility.” Id. (internal quotation marks and citations omitted). The 

Eighth Circuit Court of Appeals has cautioned that “the complaint should be read as a whole, not 

parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden, 588 

F.3d at 594.

In ruling on a Rule 12(b)(6) motion, a court must “accept ‘the facts alleged in the complaint 

as true and draw[ ] all reasonable inferences in favor of the nonmovant.’” Bauer v. AGA Serv. Co., 

25 F.4th 587, 589 (8th Cir. 2022) (quoting Pietoso, Inc. v. Republic Servs., Inc., 4 F.4th 620, 622 

(8th Cir. 2021)). On the other hand, “[m]ere conclusory statements and factual allegations lacking 

enough specificity to raise a right to relief above the speculative level are insufficient to support a 

reasonable inference that the defendant is liable.” Richardson v. BNSF Ry. Co., 2 F.4th 1063, 1068 

(8th Cir. 2021) (internal quotation marks and citations omitted). A court also need not accept a 

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pleader’s “legal conclusions drawn from the facts.” Knowles v. TD Ameritrade Holding Corp., 2 

F.4th 751, 755 (8th Cir. 2021).

Rule 12(b)(6) also permits dismissal when a claim is not cognizable under applicable law. 

See, e.g., Couzens v. Donohue, 854 F.3d 508, 517 (8th Cir. 2017) (dismissal was appropriate where 

Missouri did not recognize a claim for false light invasion of privacy); Thomas v. Bd. of Regents 

of Univ. of Nebraska, No. 4:20CV3081, 2022 WL 1491102, at *18 (D. Neb. May 11, 2022)

(agreeing with defendant that the plaintiffs had failed to state a claim, because a disparate-impact 

claim is not cognizable under the Equal Protection Clause); Freeney v. Galvin, No. 8:19CV557, 

2020 WL 229996, at *2 (D. Neb. Jan. 15, 2020) (finding the plaintiff failed to state a § 1983 claim 

against the manager of his private place of employment because such a claim is not cognizable 

where a private person is not a state actor or engaged in joint action with the state or its agents). In 

such cases, the plaintiff failed to state a claim that was legally cognizable as opposed to factually 

plausible. 

B. Preliminary Matters

The Court begins with two preliminary matters. First, Carlton requested oral argument. 

Filing 12. Defendant’s request for oral argument is denied as the Court does not hold oral 

arguments on straightforward motions to dismiss. 

Second, both parties addressed a non-existent “failure-to-accommodate” claim in their 

briefs. Filing 7 at 21–23; Filing 10 at 20–21; Filing 13 at 12–14. Both parties agree that Carlton’s 

Complaint did not allege a “failure-to-accommodate” claim. Filing 7 at 21; Filing 10 at 20. Thus, 

to the extent that Carlton’s claim is for failure to accommodate, the claim is dismissed.

The true argument between the parties is not over whether the Court should dismiss a 

“failure-to-accommodate” claim that is not in the Complaint but whether evidence on 

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accommodations is “relevant to a defendant’s direct threat affirmative defense.” Filing 10 at 20; 

Filing 13 at 12. Carlton contends that evidence on accommodations is relevant because “reasonable 

accommodations must be made for otherwise qualified individuals who are actually disabled or 

have a record of impairment.” Filing 10 at 21 (citing 29 C.F.R. § 1630.2(o)(54)). He also argues 

that nothing requires that “a plaintiff must have a separate failure-to-accommodate claim for 

accommodations to be relevant to the question of whether a plaintiff is qualified or poses a direct 

threat.” Filing 10 at 21. Union Pacific responds that Carlton seeks to introduce failure-toaccommodate evidence to “resurrect his accommodation claim” and “impos[e] the burden on 

Union Pacific to prove there was no accommodation available to mitigate the direct threat.” Filing 

13 at 12–13 (capitalization removed).

The Eighth Circuit has referenced EEOC regulations to establish that there is no duty to 

accommodate someone who is merely “regarded as” disabled:

A person is disabled for purposes of an accommodation claim if he or she has “[a] 

physical or mental impairment that substantially limits one or more of the major 

life activities of such individual” [“actual” disability] or has “record of such an 

impairment.” 29 C.F.R. § 1630.2(g)(1)(i) and (ii). See also 29 C.F.R. § 1630.2(o)(4)

(providing that a covered entity “is not required to provide a reasonable 

accommodation to an individual who meets the definition of disability solely under 

the ‘regarded as’ prong (paragraph (g)(1)(iii) of this section)”).

Hustvet v. Allina Health Sys., 910 F.3d 399 (8th Cir. 2018). Because Carlton has only adequately 

alleged that he is “regarded as” disabled and not that he has an “actual” or “record of” disability—

as explained below—evidence on accommodations is not relevant to this case.

C. “Disability” Within the Meaning of the ADA

“To obtain relief under the ADA,” an employee is “required to show that he was a disabled 

person within the meaning of the ADA, was qualified to perform the essential functions of his job, 

and suffered an adverse employment action because of his disability.” Finan v. Good Earth Tools, 

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Inc., 565 F.3d 1076, 1079 (8th Cir. 2009) (citation omitted). Carlton contends that he can recover 

because he was disabled within the meaning of the ADA, qualified to perform the essential 

functions of his job, and terminated because of his disability. Filing 1 at 12–13 (¶¶ 64–65, 67). 

Carlton alleges that he is disabled under all three of the definitions in the ADA, i.e., that he

is “actually disabled,” has a “record of disability,” and was “regarded as disabled” by Union 

Pacific. Filing 1 at 12 (¶¶ 63–64). Carlton alleges that his “seizure disorder” is the impairment that 

constitutes a disability under the ADA. Filing 10 at 19. Union Pacific argues instead that Carlton 

has not sufficiently alleged “actual” or “record of” disability but seems to concede that Carlton has 

alleged that he is “regarded as” having a disability. Filing 7 at 20; Filing 13 at 7 (“Carlton’s claim 

is nothing more than a ‘regarded as’ disability claim.”). Thus, the Court turns to the question of 

whether Carlton has sufficiently alleged that he is “disabled” within the meaning of the ADA.

1. Statutory Definitions of Disability

Disability discrimination is prohibited against “a qualified individual on the basis of 

disability” under the ADA. 42 U.S.C. § 12112(a). The ADA defines “disability” to mean “(A) a 

physical or mental impairment that substantially limits one or more major life activities of such 

individual [“actual” disability]; (B) a record of such an impairment; or (C) being regarded as 

having such an impairment.” 42 U.S.C. § 12102(1). In addition, “[t]he definition of disability in 

[the ADA] shall be construed in favor of broad coverage of individuals under this chapter, to the 

maximum extent permitted by” the ADA.” 42 U.S.C. § 12102(4)(A).

Neither party disputes that Carlton alleged he is a “qualified individual who, with or 

without reasonable accommodation, can perform the essential functions of the employment 

position that such individual holds or desires.” 42 U.S.C. § 12111(8); see also Filing 1 at 11 (¶ 57) 

(“Carlton remains capable of working as a Foreman General, as a Supervisor, and in all of his other 

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previous positions with Union Pacific to this day.”). Thus, the issue is determining whether Carlton 

adequately alleged that he has a “disability” within the meaning of the ADA. The Court holds that 

Carlton failed to sufficiently allege that he has an “actual” or “record of” disability but adequately 

alleged that he was “regarded as” disabled by Union Pacific.

2. Carlton’s Allegations of Disability

a. Carlton Has Not Adequately Alleged that He Has an Actual 

Disability

Carlton contends that he “has plausibly alleged that he has an ‘actual’ disability.” Filing 10 

at 16–17. Union Pacific responds that Carlton failed to allege facts sufficient to establish “actual” 

disability. Filing 7 at 20–21. Actual disability requires “[1] a physical or mental impairment [2] 

that substantially limits [3] one or more major life activities of such individual.” 42 U.S.C. 

§ 12102(1) (bracketed numbering added). 

i. Carlton Has Not Sufficiently Alleged that He Has a 

“Physical Impairment”

Carlton contends that “it is reasonable to infer” that “his seizures and shoulder surgery” are 

“physical impairments within the meaning of the ADA.” Filing 10 at 19. As evidence, Carlton 

cites his allegations in the Complaint that “he experienced two seizures and a resulting rotator cuff 

injury, for which he sought medical treatment.” Filing 10 at 19. Union Pacific responds that Carlton 

“cannot meet th[e] baseline requirement” of alleging a physical impairment “because he failed to 

“mention[ ] anything about any specific impairment.” Filing 7 at 20. Union Pacific asserts that 

Carlton has only “vaguely assert[ed] he is ‘an individual with a disability.’” Filing 7 at 20. The 

Court agrees with Union Pacific.

Although the ADA statute does not define “physical impairment,” the Eighth Circuit has 

endorsed an EEOC definition: “Any physiological disorder or condition, cosmetic disfigurement, 

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or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, 

special sense organs, respiratory (including speech organs), cardiovascular, reproductive, 

digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.” Morriss v. 

BNSF Ry. Co., 817 F.3d 1104, 1108 (8th Cir. 2016) (quoting 29 C.F.R. § 1630.2(h)(1)). In addition, 

“[t]he ADA prohibits an employer from discriminating against an individual on the basis of a 

presently existing ‘physical impairment.’” Id. at 1113. Carlton wants the Court to infer that a 

propensity to have seizures is a “physiological disorder or condition . . . affecting one or more 

body systems, such as neurological” that is “presently existing.” Id. at 1108, 1113; Filing 10 at 19

(“Carlton’s alleged seizure disorder would substantially limit . . . the operation of his neurological 

function.”). The Court will not make this inference.

This case is similar to Scheffler v. Dohman, 785 F.3d 1260 (8th Cir. 2015), where the 

Eighth Circuit affirmed the district court’s dismissal of a disability discrimination claim under the 

ADA:

Scheffler failed to allege facts that would support that he has a disability as defined 

by the ADA, and therefore the district court correctly granted the motion to dismiss 

for failure to state a claim. [The plaintiff] does not claim to actually be an alcoholic 

or that his alcoholism causes him to be substantially limited in a major life activity.

However, as the district court correctly found, “[d]riving while intoxicated on 

multiple occasions does not, in and of itself, establish that [Scheffler] is an 

alcoholic.” Additionally, there is no allegation in the complaint that Scheffler has 

ever been diagnosed as an alcoholic, nor does the complaint allege that Scheffler 

suffers from a substantial limitation to a major life activity due to alcoholism. 

Scheffler, 785 F.3d at 1261 (citation omitted). Like Scheffler, Carlton does not “claim to actually 

have” a seizure disorder. Id. Instead, Carlton alleges that a Union Pacific doctor wrote in his FFD 

Memo that “Carlton was evaluated ‘for return to work clearance for rotator cuff repair when he 

was discovered to have new onset seizure disorder.’” Filing 1 at 9–10 (¶ 45). The Court will not 

infer that Carlton’s two seizures constitute a present seizure disorder, absent any allegations that 

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he actually has the impairment, because having a seizure “on multiple occasions does not, in and 

of itself, establish that” Carlton has a disorder. Scheffler, 785 F.3d at 1261. Like in Scheffler, “there 

is no allegation in the complaint that [Carlton] has ever been diagnosed” with a seizure disorder, 

“nor does the complaint allege that [Carlton] suffers from a substantial limitation to a major life 

activity due to” a seizure disorder. Id. Accordingly, Carlton’s “factual allegations lack[ ] enough 

specificity” to sufficiently allege that he has a present physical impairment. See Richardson, 2 

F.4th at 1068.

ii. Carlton Has Not Adequately Alleged a “Substantial 

Limitation” to a “Major Life Activity”

Carlton argues that “[i]t is reasonable to infer from Carlton’s continued use of anti-seizure 

medication prescribed by a doctor that, without such medication, Carlton’s alleged seizure disorder 

would substantially limit at least one major life activity, e.g., the operation of his neurological 

function.” Filing 10 at 19. Carlton contends this inference would be “reasonable” because “[n]ot 

only must this Court accept all of Carlton’s allegations as true and draw all reasonable inferences 

in his favor, this Court also must follow the ADA’s directive to construe the statute as broadly as 

possible in favor of coverage.” Filing 10 at 19. Union Pacific responds that Carlton “fails to allege 

anywhere in the Complaint that he is substantially limited in any major life activity.” Filing 7 at 

20. Union Pacific argues that “[w]hile Carlton’s Complaint arguably includes some reference to 

‘impairments,’ it does not at all allege if and how he is substantially limited in a major life activity.” 

Filing 13 at 9. Union Pacific also contends that Carlton’s allegation that “his physicians released 

him to work with no restrictions” belies the claim that he is substantially limited in a major life 

activity. Filing 13 at 9. The Court agrees with Union Pacific.

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The ADA provides “Rules of construction” for the term “substantially limit.” 42 U.S.C. 

§ 12102(4)(B)–(E). The term “shall be interpreted consistently with the findings and purposes of 

the ADA Amendments Act of 2008,” usually called the ADAAA. 42 U.S.C. § 12102(4)(B); see 

also Morriss, 817 F.3d at 1110 (noting that “in the ADAAA . . . Congress expressed an intent to 

provide ‘broad coverage’ of individuals with disabilities”). To “substantially limit one major 

activity,” an impairment “need not limit other major life activities in order to be considered a 

disability.” 42 U.S.C. § 12102(4)(C). “An impairment that is episodic or in remission is a disability 

if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D). Finally, 

courts do not consider “the ameliorative effects of mitigating measures such as [ ] medication” or 

other aids to determine whether an impairment substantially limits any major life activity. 42 

U.S.C. § 12102(4)(E). The EEOC has elaborated that “‘substantially limits’ is not meant to be a 

demanding standard” and “should not demand extensive analysis.” 29 C.F.R. § 1630.2(j)(1)(i), 

(iii). However, “not every impairment will constitute a disability within the meaning of this 

section.” Id. § 1630.2(j)(ii). “An impairment is a disability within the meaning of this section if it 

substantially limits the ability of an individual . . . as compared to most people in the general 

population,” and this “comparison . . . usually will not require scientific, medical, or statistical 

analysis.” Id. § 1630.2(j)(ii), (v). Ultimately, “[t]he determination of whether an impairment 

substantially limits a major life activity requires an individualized assessment.” Id. § 1630.2(j)(iv).

The ADA also provides a non-exhaustive list of “major life activities,” including “caring 

for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, 

bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and 

working.” 42 U.S.C. § 12102(2)(A). Major life activities also include “the operation of a major 

bodily function, including but not limited to, functions of the immune system, normal cell growth, 

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digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive 

functions.” Id. § 12102(2)(B). EEOC regulations have elaborated that “the term ‘major’ shall not 

be interpreted strictly to create a demanding standard for disability. Whether an activity is a ‘major 

life activity’ is not determined by reference to whether it is of ‘central importance to daily life.’”

29 C.F.R. § 1630.2(i)(2) (citation omitted).

The Court will not infer that “without [anti-seizure medication], Carlton’s alleged seizure 

disorder would substantially limit . . . the operation of his neurological function.” Filing 10 at 19. 

Carlton does not allege any facts from which one could infer that his seizure disorder substantially 

limits his neurological function “as compared to most people in the general population.” 29 C.F.R. 

§ 1630.2(j)(1)(ii). Carlton alleges that his “doctors prescribed [him] anti-seizure medication [and] 

Carlton has taken anti-seizure medicine since that time . . . and has not experienced another 

seizure.” Filing 1 at 8 (¶¶ 36–37). Presumably, Carlton wants the Court to infer that any 

unmedicated seizure disorder would substantially limit the operation of a person’s neurological 

function, but he does not allege that the anti-seizure medication is a “mitigating measure”—i.e., 

that Carlton would have more seizures without the medication. Cf. 42 U.S.C. § 12102(4)(E). 

Indeed, Carlton asserts that he “had no prior history of seizures before these two seizures.” Filing 

1 at 8 (¶ 37). It would be untenable for the Court to infer that Carlton would have had more seizures 

but for taking anti-seizure medicine when Carlton has only ever had two seizures and does not 

allege that he was diagnosed with a seizure disorder. Carlton has simply failed to plead sufficient 

facts to allow the Court to make the required “individualized assessment” to determine “whether 

an impairment substantially limits a major life activity.” 29 C.F.R. § 1630.2(j)(iv).

The Court will also not infer a substantial limitation because other factual allegations in 

Carlton’s complaint contradict the notion that his neurological function is substantially limited. 

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Carlton alleges that his neurologist cleared him to return to work without restrictions 

approximately three months after his second seizure. Filing 1 at 9 (¶ 38). Carlton’s claim that he 

received medical clearance over seven years ago belies any inference that his neurological function 

is presently and substantially limited. In addition, Carlton alleges that he “could perform the 

essential functions of his position with or without reasonable accommodations.” Filing 1 at 13 (¶ 

65). Absent specific allegations to the contrary, the Court will not infer that Carlton presently 

suffers a physical impairment that substantially limits his neurological function yet “remains 

capable of working . . . in all of his other previous positions with Union Pacific to this day” without 

any accommodations. Filing 1 at 11 (¶ 57). Because there are insufficient facts from which the 

Court can infer that Carlton’s alleged seizure disorder substantially limits a major life activity, and 

because such an inference contradicts his other allegations, the Court holds that Carlton has not 

sufficiently alleged “actual” disability. Carlton’s “[m]ere conclusory statements” that he has an 

“actual” disability “are insufficient to support a reasonable inference that the defendant is liable.” 

Richardson, 2 F.4th at 1068. 

b. Carlton Has Not Sufficiently Alleged That He Has a “Record 

Of” Disability

Carlton contends that he “has plausibly alleged that he has . . . [a] ‘record of’ disability.” 

Filing 10 at 16–17. Carlton states that “it is reasonable to infer” that “his seizures and shoulder 

surgeries” are “physical impairments within the meaning of the ADA.” Filing 10 at 19. He also 

argues that “without [anti-seizure] medication, Carlton’s alleged seizure disorder would 

substantially limit at least one major life activity, e.g., the operation of his neurological function.” 

Filing 10 at 19. Union Pacific responds that Carlton failed to allege facts sufficient to establish a 

“record of” disability. Filing 7 at 20. Union Pacific argues that Carlton failed to “mention[ ] 

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anything about any specific impairment” and “only vaguely asserts he is ‘an individual with a 

disability.’” Filing 7 at 21. 

The definition of disability under the ADA includes “a record of such an impairment.” 42 

U.S.C. § 12102(1)(B) (referring to “actual” disability as “a physical or mental impairment that 

substantially limits one or more major life activities of such individual” (citing 42 U.S.C. 

§ 12102(1)(A))). The Eighth Circuit has explained that “[h]aving a record of a qualifying 

impairment means that an employee ‘has a history of, or has been misclassified as having, a mental 

or physical impairment that substantially limits one or more major life activities.’” Taylor v. 

Nimock's Oil Co., 214 F.3d 957, 961 (8th Cir. 2000) (quoting 29 C.F.R. § 1630.2(k)); see also 

Shklyar v. Carboline Co., 616 F. Supp. 3d 920, 924 (E.D. Mo. 2022) (quoting Taylor, 214 F.3d at 

961), aff'd, No. 22-2618, 2023 WL 1487782 (8th Cir. Feb. 3, 2023). Thus, like under § 12102(A) 

(“actual” disability), Carlton must show that he previously had or was misclassified as having an 

impairment that substantially limits a major life activity.

Here, unlike his “actual” disability claim, Carlton’s claim that he has a “record of” 

disability is not directly contradicted by other allegations that he is presently medically cleared to 

work without restrictions or that he can now return to his former position without any 

accommodations. There are also some facts from which the Court can draw inferences related to 

Carlton’s alleged record of disability. For example, Carlton’s doctors issued him “a temporary 30-

day driving restriction” after his first seizure in February, 2016. Filing 1 at 8 (¶ 33). Carlton also 

alleges that there was an approximately three-month period after his second seizure during which 

he was not cleared by his doctors to return to work. Filing 1 at 8–9 (¶¶ 35, 38). Finally, he sought 

medical treatment and was hospitalized after his seizures. Filing 1 at 8 (¶¶ 33, 35). 

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However, even though his claim is not wholly inconsistent with the rest of his Complaint, 

Carlton still fails to allege that he had a physical impairment that substantially limited a major life 

activity. Thus, the Court will not infer that Carlton’s two seizures constitute a “record of” 

substantial limitation to the major life activity of “neurological function,” absent any factual 

allegations. Scheffler is again instructive:

Scheffler argues his multiple DWI convictions create a record of alcoholism under 

the second prong of the disability definition. However, as the district court correctly 

found, “[d]riving while intoxicated on multiple occasions does not, in and of itself, 

establish that [Scheffler] is an alcoholic.” Additionally, there is no allegation in the 

complaint that Scheffler has ever been diagnosed as an alcoholic, nor does the 

complaint allege that Scheffler suffers from a substantial limitation to a major life 

activity due to alcoholism. Accordingly, he has failed to allege that he is disabled 

under the [“record of”] prong of the ADA's disability definition. 

Scheffler, 785 F.3d at 1261–62 (citation omitted). The inference Carlton seeks is inappropriate 

because having had seizures “on multiple occasions does not, in and of itself, establish that” 

Carlton had a record of a seizure disorder. Scheffler, 785 F.3d at 1261. Like in Scheffler, as 

discussed above, “there is no allegation in the complaint that [Carlton] has ever been diagnosed” 

with a seizure disorder, “nor does the complaint allege that [Carlton] suffers from a substantial 

limitation to a major life activity due to” a seizure disorder. Id. Therefore, Carlton also “failed to 

allege that he is disabled under the [‘record of’] prong of the ADA’s disability definition.” Id. at 

1262.

Even though Carlton does not assert that a seizure disorder substantially limits any major 

life activity other than his neurological function, the Court will consider whether he has alleged 

facts sufficient to infer any other substantial limitation. The major life activity that most closely 

mirrors his complaint is “working.” 42 U.S.C. § 12102(2)(A). Carlton was not medically cleared 

by his own doctors to return to work without restrictions for approximately three months, which 

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suggests that his ability to work might have been substantially limited. Filing 1 at 9 (¶¶ 35, 38). 

However, Carlton does not allege that his ability to work was ever restricted; instead, he asserts 

that he “remains capable of working as a Foreman General, as a Supervisor, and in all of his other 

previous positions with Union Pacific to this day.” Filing 1 at 11. Because Carlton does not allege 

that he ever lost the capability to work, the Court will not infer that an impairment substantially 

limited his major life activity of “working.” Accordingly, Carlton has not alleged sufficient

“factual content that allows the court to draw the reasonable inference that” Carlton has a “record 

of” disability. Christopherson, 33 F.4th at 499 (quoting Iqbal, 556 U.S. at 678).

c. Carlton Has Sufficiently Alleged that He is “Regarded As” 

Disabled by Union Pacific

In his Complaint, Carlton cited the three definitions of disability—actual, record of, and 

regarded as—under the ADA and alleged that “[a]t all relevant times, [he] was an individual with 

a disability as defined by the ADA.” Filing 1 at 12 (¶¶ 63–64). Union Pacific appears to concede 

that Carlton claimed that he was “regarded as” disabled. Filing 13 at 7 (“Carlton’s claim is nothing 

more than a ‘regarded as’ disability claim.”)

Under the ADA, the definition of “disability” includes “being regarded as having such an 

impairment [that substantially limits one or more major life activities].” 42 U.S.C. § 12102(1)(C). 

The statute explains further that “[a]n individual meets the requirement of ‘being regarded as 

having such an impairment’ if the individual establishes that he or she has been subjected to an 

action prohibited under this chapter because of an actual or perceived physical or mental 

impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 

U.S.C. § 12102(3)(A). The Eighth Circuit has explained that an employee “is regarded as disabled 

if her employer mistakenly believes that she has a physical impairment that substantially limits 

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one or more major life activities or mistakenly believes that an actual, non-limiting impairment 

substantially limits one or more major life activities.” Canning v. Creighton Univ., 995 F.3d 603, 

615 (8th Cir. 2021) (citing Brunko v. Mercy Hosp., 260 F.3d 939, 942 (8th Cir. 2001)); see also 

Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1113 (8th Cir. 2016) (“[A]s a threshold matter, [a plaintiff 

is] required to show that [the employer] perceived his [alleged disability] to be a condition that 

met the definition of ‘physical impairment.’”). 

Although Carlton does not adequately allege an “actual” disability, as discussed above, his 

allegations show a “perceived physical . . . impairment whether or not the impairment limits or is 

perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). Union Pacific “imposed . . . 

work restrictions on Carlton on the basis that he was at risk for sudden incapacitation” despite 

Carlton’s allegation that he “remains capable of working as a Foreman General, as a Supervisor, 

and in all of his other previous positions with Union Pacific to this day.” Filing 1 at 10–11 (¶¶ 46, 

57). Carlton also alleges that “Union Pacific did not allow Carlton to return to a Foreman General 

I position” or “to return to work in a different position” because of work restrictions imposed in 

response to what Union Pacific described as a “new onset seizure disorder” Filing 1 at 10–11 (¶¶ 

44, 55–56). Accordingly, because Carlton does not allege that he has an impairment but that he 

was nonetheless removed from service due to an “alleged seizure disorder,” he sufficiently alleges 

that Union Pacific “mistakenly believes that [Carlton] has a physical impairment that substantially 

limits one or more major life activities.” Canning, 995 F.3d at 615; Filing 10 at 19. In short, 

Carlton’s “nonconclusory allegations, accepted as true, make it not just ‘conceivable’ but 

‘plausible’ that” he is “regarded as” disabled by Union Pacific. See Mitchell, 28 F.4th at 895

(quoting Iqbal, 556 U.S. at 680-83).

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Therefore, Carlton has sufficiently alleged that he is “a qualified individual” within the 

meaning of the ADA because he was “regarded as” disabled by Union Pacific, but not because he 

had an “actual” or “record of” disability. 42 U.S.C. § 12112(a). Any claim based upon Carlton 

having an “actual” or “record of” impairment is dismissed.

D. The Nature of Count II

1. Contrary to Union Pacific’s Contention, Count II Is Not for Disparate Impact

Count II of the Complaint seeks relief for disability discrimination under 42 U.S.C. 

§ 12112(b)(6). Union Pacific contends that Count II does not allege disparate treatment and “is 

actually a disparate impact claim.” Filing 7 at 5 (emphasis in original). In this section, the Court 

will only discuss whether Carlton has attempted to plead disparate treatment or disparate impact. 

The plausibility of Carlton’s claims will be discussed in a subsequent section.

Union Pacific argues that Carlton seeks “to disguise the claim as a disparate impact claim 

to avoid the statute of limitations” through “artful pleading.” Filing 7 at 5; Filing 13 at 1. Carlton 

responds that Count II is a disparate-treatment claim because it asserts that Union Pacific’s FFD 

evaluation program and other unwritten policies “intentionally screen[ed] him out of his job 

because of disability.” Filing 10 at 5. The Court agrees with Carlton that Count II attempts to state

a disparate-treatment and not a disparate-impact claim.

The “[g]eneral rule” for disability discrimination under the ADA is that “[n]o covered 

entity shall discriminate against a qualified individual on the basis of disability[.]” 42 U.S.C. 

§ 12112(a). Section 12112(b)(6) specifies that “discriminat[ing] against a qualified individual on 

the basis of disability” includes “using qualification standards, employment tests or other selection 

criteria that screen out or tend to screen out an individual with a disability[.]” Count II specifically 

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seeks relief on a disparate-treatment theory of liability for disability discrimination under 

§ 12112(b)(6). Filing 1 at 13–14 (¶¶ 70–75).

The Supreme Court has “consistently recognized a distinction between claims of 

discrimination based on disparate treatment and claims of discrimination based on disparate 

impact.” Raytheon Co v. Hernandez, 540 U.S. 44, 52 (2003). “Both disparate-treatment and 

disparate-impact claims are cognizable under the ADA,” but the claims are distinct. Id. at 53. 

Accordingly, the Supreme Court admonished that “courts must be careful to distinguish between 

these theories.” Id.

The Supreme Court explained that “disparate treatment . . . is the most easily understood 

type of discrimination. The employer simply treats some people less favorably than others because 

of their race, color, religion, sex, or other protected characteristic.” Id. (cleaned up). Disparatetreatment claims require “evidence of the employer’s subjective intent to discriminate” and 

“depend on whether the protected trait . . . actually motivated the employer’s decision.” Id. at 52–

53 (cleaned up). The Eighth Circuit has elaborated: “In a disparate treatment case, the plaintiff 

must basically prove that he is a member of a protected class and that the defendant treated him 

less favorably than similarly situated non-minority employees in circumstances from which 

intentional discrimination can be inferred.” Hervey v. City of Little Rock, 787 F.2d 1223, 1231 (8th 

Cir. 1986). The prima facie case for disparate treatment based on disability requires showing “(1) 

that the plaintiff was disabled within the meaning of the ADA; (2) that the plaintiff was qualified 

to perform the essential functions of the job with or without a reasonable accommodation; and (3) 

a causal connection between an adverse employment action and the disability.” Lipp v. Cargill 

Meat Solutions Corp., 911 F.3d 537, 544 (8th Cir. 2018) (cleaned up).

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Unlike disparate-treatment claims, disparate-impact claims “involve employment practices 

that are facially neutral in their treatment of different groups but that in fact fall more harshly on 

one group than another.” Raytheon, 540 U.S. at 52. “The factual issues, and therefore the character 

of the evidence presented, differ [from disparate-treatment claims] when the plaintiff claims that 

a facially neutral employment policy has a discriminatory impact on protected classes.” Id. at 53

(cleaned up). Disparate-impact claims do not require showing that “the protected trait . . . actually 

motivated the employer’s decision.” Id. at 52 (internal quotations and citation omitted). Instead, 

“a facially neutral employment practice may be deemed illegally discriminatory without evidence 

of the employer’s subjective intent to discriminate that is required in a disparate-treatment case.” 

Id. at 52–53 (cleaned up). The Eighth Circuit elaborated that “[t]o satisfy the elements of a prima 

facie disparate impact claim, plaintiffs must demonstrate: “(1) an identifiable, facially-neutral 

personnel policy or practice; (2) a disparate effect on members of a protected class; and (3) a causal 

connection between the two.” Williams v. Wells Fargo Bank, N.A., 901 F.3d 1036, 1040 (8th Cir. 

2018).

Here, Carlton did not assert that there was a “facially-neutral personnel policy or practice,” 

as required to assert a disparate-impact claims. Williams, 901 F.3d at 1040. To the contrary, Carlton 

asserted “intentional discrimination” due to what he alleged were “facially discriminatory 

standards, employment tests, and/or other selection criteria . . . that are intended to screen out 

individuals with disabilities, and which did screen out Carlton.” Hervey, 787 F.2d at 1231; Filing 

1 at 14 (¶ 72). Thus, Carlton alleged Union Pacific’s “subjective intent to discriminate,” which is 

consistent with a disparate-treatment claim. Raytheon, 540 U.S. at 53. Therefore, Carlton 

attempted to state a disparate-treatment claim and not a disparate-impact claim. Because Union 

Pacific does not argue that Carlton is time-barred from raising a disparate-treatment claim, and 

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that is the kind of claim the Court finds Carlton attempts to assert in Count II, the Court need not 

analyze whether the statute of limitations would bar a disparate-impact claim.

2. The Court Does Not Need to Determine Whether Disparate-Treatment Claims 

Are Legally Cognizable Under § 12112(b)(6)

Union Pacific argues that 42 U.S.C. § 12112(b)(6) is for disparate-impact claims only. 

Filing 13 at 1–5. Union Pacific contends that controlling precedent fairly implies that § 

12112(b)(6) is for disparate-impact claims alone. Filing 13 at 2–3. In addition, Union Pacific refers 

the Court to previous dicta from another Judge on this Court and persuasive authority from other 

District Courts and Courts of Appeals to support its contention. Filing 13 at 3. Ultimately, Union 

Pacific asks the Court to “follow the many courts that have refused to extend § 12112(b)(6) to a 

disparate treatment theory and dismiss Carlton’s § 12112(b)(6) claim.” Filing 13 at 5. Carlton 

responds that disparate-treatment claims are viable under § 12112(b)(6). He contends that no 

precedent from the Supreme Court or the Eighth Circuit holds nor implies that disparate-treatment 

claims are unavailable under § 12112(b)(6). Filing 10 at 6, 10–11. Carlton also argues that the 

Court’s previous dicta on the issue was incorrect and refers the Court to persuasive authority that 

supports his argument. Filing 10 at 6–7, 12. In addition, Carlton asserts that § 12112(b)(6) permits 

disparate-treatment claims as a matter of statutory interpretation. Filing 10 at 9. However, because 

the Court determines that Carlton has failed to state a plausible claim for relief, the Court does not 

need to decide whether a disparate-treatment claim is cognizable under § 12112(b)(6). 

E. The Sufficiency of the Pleading of Count II

The Court now considers whether Carlton pleaded sufficient facts to state a plausible claim 

for disparate treatment, assuming that disparate-treatment claims are viable under § 12112(b)(6). 

Carlton contends that his Complaint “is sufficient to state a plausible claim that Union Pacific was 

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using its Fitness-for-Duty policies to intentionally screen him out of his job because of his 

disability,” thereby alleging disparate treatment. Filing 10 at 14. Carlton argues that he alleged 

sufficient direct and indirect evidence to show that Union Pacific’s practices constitute disparate 

treatment. Filing 10 at 14–16. Union Pacific responds that “even were Carlton able to assert a 

disparate treatment claim pursuant to § 12112(b)(6), he cannot allege facts sufficient to establish 

such a claim.” Filing 13 at 7.

The Supreme Court and the Eighth Circuit have “long recognized that a party may prove 

intentional discrimination under the ADA either by direct or indirect evidence.” Lipp, 911 F.3d at 

543 (internal quotations and citations omitted); see also Young v. United Parcel Serv., Inc., 575 

U.S. 206, 213 (2015). Therefore, the Court must consider whether Carlton has sufficiently alleged 

facts that can serve as direct or indirect evidence of disparate treatment. The Court agrees with 

Union Pacific that he has not.

1. Carlton Has Not Sufficiently Alleged Direct Evidence of Disparate Treatment 

Carlton contends that he has alleged sufficient direct evidence of intentional discrimination 

to plausibly state a claim for disparate treatment. Filing 10 at 14. Carlton refers the Court to the 

FFD policy and other unwritten practices including the “1% rule” as examples of direct evidence. 

Filing 10 at 14–15. Carlton asserts these policies can serve as direct evidence of disparate treatment 

because they are “facially discriminatory.” Filing 10 at 14. Union Pacific responds that Carlton 

cannot show that the policies are facially discriminatory because they apply “to all employees, 

regardless if they have a disability” and some employees with disabilities “are returned to work.” 

Filing 13 at 7. 

The Supreme Court has stated that “a plaintiff can prove disparate treatment . . . by direct 

evidence that a workplace policy, practice, or decision relies expressly on a protected 

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characteristic.” Young, 575 U.S. at 213. This Court concludes that a policy that “relies expressly” 

on disability classifies by disability, i.e., such a policy is facially discriminatory. Id. The Eighth 

Circuit has defined “direct evidence” somewhat differently as evidence “which shows a strong 

causal connection between the alleged discriminatory animus and the adverse employment action.” 

Smothers v. Rowley Masonic Assisted Living Cmty., LLC, 63 F.4th 721, 727 (8th Cir. 2023). For 

example, the Eighth Circuit has explained that “[d]irect evidence can be circumstantial in nature 

and includes evidence of conduct or statements by persons involved in the decisionmaking process 

that may be viewed as directly reflecting the alleged discriminatory attitude.” Id. (internal 

quotations and citation omitted). The evidence “must be sufficient to support a finding by a 

reasonable fact finder that an illegitimate criterion actually motivated the adverse employment 

action.” Id. (internal quotations and citation omitted).

Carlton alleges that Union Pacific’s policies are “facially discriminatory,” by which the 

Court understand him to mean that the policies “rel[y] expressly” on disability and thus serve as 

direct evidence of disparate treatment. Filing 1 at 14 (¶ 72); Filing 10 at 14–15; Young, 575 U.S. 

at 213. However, Carlton never argues that he has “direct evidence” of the sort described by the 

Eighth Circuit in Smothers, because he nowhere alleges that there is evidence “circumstantial in 

nature” such as “evidence of conduct or statements by persons involved in the decisionmaking 

process that may be viewed as directly reflecting the alleged discriminatory attitude.” Id. (internal 

quotations and citation omitted). Union Pacific argues that its policies are not facially 

discriminatory because they apply “equally to all employees [with and] without disabilities” and 

because some employees “who have a disability are subject to a lawful fitness-for-duty review and 

returned to work, meaning the policy does not automatically result in ‘discrimination.’” Filing 7 

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at 11. Thus, the Court will examine the FFD policy and the “1% rule” to determine whether each 

policy “expressly relies on” disability.

a. The FFD Policy Cannot Serve as Direct Evidence of Disparate 

Treatment

The Court begins with Carlton’s allegations that the FFD policy can serve as direct 

evidence of disparate treatment. The FFD policy aims to determine employees’ “[a]bility to 

medically and functionally (including physical, mental, and/or cognitive function) safely perform 

the functions of a job, with or without reasonable accommodations and meet medical standards 

established by regulatory agencies in accordance with federal and/or state laws.” Filing 1-1 at 2

(cleaned up). The FFD policy applies to “all Union Pacific employees across the county.” Filing 1 

at 3 (¶ 9). After the FFD evaluation, HMS determines whether “the employee is fit for duty, fit for 

duty with restrictions, or unfit for duty.” Filing 1 at 5 (¶ 17). The policy imposes several 

requirements on employees:

Reporting to work fit for duty to safely perform their jobs with or without 

reasonable accommodations;

Notifying the supervisor when the employee becomes aware of or is concerned that 

a medical condition or symptom(s) exists which may affect his/her ability to safely 

perform his/her job;

Undergoing a Fitness-for-Duty evaluation, including all medical tests, 

examinations, and evaluations deemed necessary by various governmental agencies 

and HMS;

Providing, upon request, information from the employees [sic] health care provider 

including, but not limited to: medical documentation pertaining to medical tests, 

examinations, and/or evaluations, including lists of all prescription and over-thecounter medications taken by the employee. Employee may be required to provide 

information on a periodic basis for monitoring of continued fitness-for-duty.

Providing, upon request, a statement from the employees [sic] healthcare provider 

whether or not, or in what circumstances, any prescriptions or OTC medications 

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currently taken by the employee is likely to impair the employee’s perceptual 

abilities or alertness, or impair mental or physical functioning;

Performing all work in conformance with any medical restrictions that HMS has 

placed upon the employee;

Meeting the requirements, in a timely manner, of all federal and state laws and 

regulations applicable to the employee with regard to medical evaluations and 

testing and the use of personal protective equipment;

Providing accurate information to Health and Medical Services regaring [sic] health 

status and medical treatment;

. . . 

Notify HMS as soon as practicable if he/she experiences any of the health events 

listed in Appendix B of these Medical Rules. A reportable health event is defined 

as a new diagnosis, recent event or change in a prior stable condition, for one of the 

following (See Appendix B for more detail): a) Cardiovascular Conditions b) 

Seizure or Loss of Consciousness c) Significant Vision or Hearing Changes d) 

Diabetes Treated with Insulin e) Severe Sleep Apnea;

The employee should simultaneously notify his/her supervisor that he/she has 

experienced a health event, as defined in Appendix B, that requires a Fitness-forDuty evaluation by Health and Medical Services prior to performing his/her job.

If the employee experiences a health event noted in Appendix B, the employee 

should not report for, or perform, his/her job until Fitness-for-Duty clearance has 

been provided for such work by HMS[.]

Filing 1-1 at 3 (semicolons added). 

As to whether anything on the face of the FFD policy “relies expressly” on disability, i.e., 

whether the policy is “facially discriminatory,” Young, 575 U.S. at 213, the Court finds that nothing 

in the FFD policy that expressly relies on or classifies by “disability.” See generally Filing 1-1. 

Indeed, Carlton does not specify which part of the FFD policy he believes expressly relies on 

disability. On the other hand, the FFD policy states that “[i]f the employee experiences a 

[reportable] health event noted in Appendix B, the employee should not report for, or perform, 

his/her job until Fitness-for-Duty clearance has been provided for such work by HMS.” Filing 1-

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1 at 3. It also lists as “reportable health events” medical conditions such as diabetes, a “seizure of 

any kind,” heart attacks, and “[n]ew use of hearing aids.” Filing 1-1 at 13 (listing categories of 

conditions as “Cardiovascular,” “Seizure or Loss of Consciousness,” “Significant Vision or 

Hearing Change,” “Diabetes Treated with Insulin,” and “Severe Sleep Apnea”). Consequently, the 

Court considers whether “reportable health event” operates as a stand-in for “disability” such that 

the classification in the FFD “expressly relies” on disability. 

The Court finds that the FFD’s reliance on “reportable health events” does not “expressly 

rely” on disability and is not “facially discriminatory.” Young, 575 at 213. Instead, employees who 

have a “condition” that constitutes a “reportable health event” may not have an “impairment” that 

constitutes a “disability” within the meaning of the ADA. Compare 42 U.S.C. § 12102(1)(a)

(defining disability to mean an “impairment that substantially limits one or more major life 

activities”), with Filing 1-1 at 13. For example, an employee who had a “seizure of any kind” 

nonetheless might not have a “disability” within the meaning of the ADA if he is not “substantially 

limit[ed] [in] one or more major life activities.” Filing 1-1 at 13; 42 U.S.C. § 12102(1)(a); see also

Filing 1 at 13 (¶ 65) (despite having suffered two seizures, Carlton alleges that “[a]t all relevant 

times, [he] had the requisite skill, experience, education, and other job-related requirements of his 

position [and] could perform the essential functions of his position with or without reasonable 

accommodations”). In addition, there may be employees with an ADA-defined disability who have 

never experienced a “reportable health event.” For instance, not a single “mental impairment” that 

“substantially limits one or more major health activities of such individual” would fall under any 

category of “reportable health events.” Compare 42 U.S.C. § 12102(1)(a), with Filing 1-1 at 13

(listing categories of conditions as “Cardiovascular,” “Seizure or Loss of Consciousness,” 

“Significant Vision or Hearing Change,” “Diabetes Treated with Insulin,” and “Severe Sleep 

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Apnea”). Thus, the FFD policy is not facially discriminatory because classifying employees by 

“reportable health events” is not the same as classifying them by disability. Therefore, the FFD 

policy does not rely expressly on disability.

In sum, the FFD policy does not “rel[y] expressly” on disability. Young, 575 U.S. at 213.

Rather, the FFD evaluations “lead[ ] to varying—and individualized—outcomes” for individuals 

with and without disabilities. Harris, 953 F.3d at 1037. Therefore, Carlton’s “[m]ere conclusory 

statements” that the FFD policy can serve as direct evidence of disparate treatment are insufficient.

See Richardson, 2 F.4th at 1068. 

b. The “1% Rule” Cannot Serve as Direct Evidence of Disparate 

Treatment

The Court moves next to allegations that Union Pacific’s “other unlawful policies and 

qualification standards related to Fitness-for-Duty that are not included within the Medical Rules”

are direct evidence of disparate treatment. Filing 10 at 15. These “unlawful policies”3include the 

purported “1% rule,” which “disqualifies from service any employee who Union Pacific suspects 

or believes may be at more than a 1% risk of sudden incapacitation.” Filing 1 at 4 (¶ 12). Accepting

as true Carlton’s allegation that Union Pacific uses this “1% rule,” the Court holds that the “1% 

rule” does not constitute direct evidence of disability discrimination. 

The “1% rule” does not “expressly rel[y] on” disability because the risk of future 

impairments does not constitute a presently existing impairment under the ADA. Young, 575 U.S. 

3 Carlton contends that “Union Pacific also maintains other unlawful policies and qualification standards related 

to Fitness-for-Duty that are not included within the Medical Rules,” and this is also direct evidence of disability 

discrimination. Filing 1 at 4 (¶ 12); Filing 10 at 15. One protocol that Carlton alleges that Union Pacific relied on in 

making his FFD determination was the “1% Rule.” Filing 10 at 15. Carlton also alleges that “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.” 

Filing 1 at 4 (¶ 12). However, Carlton does not allege that he was subjected to this tolerance testing or that he has a 

cardiac condition. Therefore, the Court only considers the “1% rule.” 

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at 213. At first glance, risk of sudden incapacitation may appear to qualify as a disability under the 

ADA. This is so, because the ADA includes as a “disability” an “impairment that is episodic or in 

remission . . . if it would substantially limit a major life activity when active.” 42 U.S.C. 

§ 12102(4)(D). Moreover, incapacitation would likely substantially limit most of the major life 

activities listed in 42 U.S.C. § 12102(2)(A). However, the focus of the “1% rule” is the future risk 

of incapacitation, not “a presently existing ‘physical impairment’ as that term is defined under the 

Act.” Morriss, 817 F.3d at 1113. The Eighth Circuit explained that the ADA does not prevent 

discrimination against risk of future impairments, so long as the risk determination is not based on 

a presently existing impairment:

The ADA prohibits an employer from discriminating against an individual on the 

basis of a presently existing “physical impairment” as that term is defined under 

the Act. But the ADA does not prohibit an employer from acting on some other 

basis, i.e., on its assessment that although no physical impairment currently exists, 

there is an unacceptable risk of a future physical impairment. . . . The ADA does 

not prohibit discrimination based on a perception that a physical characteristic—as 

opposed to a physical impairment—may eventually lead to a physical impairment 

as defined under the Act. Instead, the plain language of the ADA prohibits actions 

based on an existing impairment or the perception of an existing impairment.

Morriss, 817 F.3d at 1113. Thus, the question is not whether a future risk of sudden incapacitation 

is a physical impairment, but whether Union Pacific decides that an employee is at such risk 

because of a “presently existing ‘physical impairment.’” Id. In other words, the “1% rule” does 

not “expressly rel[y] on” disability because a future risk of sudden incapacitation is not an 

impairment under the ADA. Young, 575 U.S. at 213. Carlton’s “[m]ere conclusory statements” 

regarding the FFD policy or the “1% rule” “are insufficient to support a reasonable inference that” 

the policies can serve as direct evidence of disparate treatment. Richardson, 2 F.4th at 1068.

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2. Carlton Has Not Alleged Sufficient Indirect Evidence from which a Reasonable 

Person Could Infer Disparate Treatment Because of Disability

Carlton also claims that he has alleged sufficient indirect evidence of disparate treatment 

to state a plausible claim. Filing 10 at 15–16. Carlton argues that “there is no requirement that [he] 

prove the alleged policies are ‘facially discriminatory’” but only that “the evidence in the 

complaint, when accepted as true, is sufficient to state a plausible claim that Union Pacific was 

using its Fitness-for-Duty policies to intentionally screen him out of his job because of his 

disability.” Filing 10 at 13–14 (emphasis omitted). By this, the Court understands Carlton to argue 

that the Complaint also contains factual allegations which can serve as indirect evidence of 

disparate treatment. Carlton contends that it is reasonable to infer that Union Pacific intentionally 

discriminated against him from his allegations that Union Pacific did not conduct an individualized 

Fitness-for-Duty evaluation, that Union Pacific disregarded the opinions of his treating medical 

providers, and that Union Pacific continued to rely on the flawed FMCSA. Filing 10 at 16. The 

Court will also consider whether the “1% rule” constitutes indirect evidence because Carlton 

alleges Union Pacific instituted the rule in reliance on the FMCSA Handbook. Filing 1 at 7 (¶ 27). 

Union Pacific does not specifically address Carlton’s claim that indirect evidence shows disability 

discrimination, but Union Pacific contends generally that Carlton “cannot allege facts sufficient to 

establish [a disparate-treatment] claim.” Filing 13 at 7.

A plaintiff may “show disparate treatment through indirect evidence . . . through 

application of the McDonnell Douglas framework,” which first “requires a plaintiff to make out a 

prima facie case of discrimination.” Young, 575 U.S. at 228. Making out the prima facie case 

requires “showing actions taken by the employer from which one can infer, if such actions remain 

unexplained, that it is more likely than not that such actions were based on a discriminatory 

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criterion.” Id. The Eighth Circuit has elaborated on the elements of a prima facie discrimination 

claim based on indirect evidence: 

Under the McDonnell Douglas framework, [an employee must show] the first three 

elements of a prima facie case of discrimination: (1) she is a member of a protected 

class; (2) she was qualified for her position and performing adequately; and (3) she 

suffered adverse employment actions. . . . [T]he fourth element [requires a] showing 

that the circumstances of these actions gave rise to an inference of discrimination. 

She may do so by presenting evidence of pretext. A plaintiff may show pretext, 

among other ways, by showing that an employer (1) failed to follow its own 

policies, (2) treated similarly-situated employees in a disparate manner, or (3) 

shifted its explanation of the employment decision.

Smothers, 63 F.4th at 728 (internal quotations and citation omitted). 

Here, Carlton has satisfied the first three elements of his prima facie case for disability 

discrimination. As discussed above, he is “regarded as” having a disability. 42 U.S.C. 

§ 12102(1)(C). He alleged that he “had the requisite skill, experience, education, and other jobrelated 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.” 

Filing 1 at 13 (¶ 65). He also alleged that he was “remov[ed] . . . from service.” Filing 1 at 13 (¶ 

67). Thus, the question is whether Carlton can satisfy the fourth element by “showing that the 

circumstances of” relying on the FMCSA Handbook and on Carlton’s medical records without an 

individual medical examination “gave rise to an inference of discrimination.” Smothers, 63 F.4th 

at 728. The Court will consider whether either of these actions “present[ ] evidence of pretext.” Id.

Carlton does not allege that Union Pacific “failed to follow its own polices” or “shifted its 

explanation of the employment decision.” Id. Therefore, the focus of the “pretext” analysis is 

whether Union Pacific “treated similarly-situated employees in a disparate manner,” i.e., relied on 

the FMCSA Handbook and on employees’ medical records instead of their treating physician’s 

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opinions or an individualized examination because Union Pacific wanted to exclude employees 

based on disability. Id.

The Court begins with the allegation that Union Pacific’s reliance on the FMCSA 

Handbook can serve as indirect evidence of disparate treatment. The Court assumes that the 

Handbook, as Carlton alleged, “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.” Filing 1 at 6 (¶ 23). The Court also 

assumes that, by 2015, Union Pacific knew “that the FMCSA removed the Handbook from its 

website and no longer endorsed its use” and that Union Pacific used the Handbook “as a basis to 

assign standardized work restrictions for its employees.” Filing 1 at 6 (¶ 26). In addition, the Court 

assumes that the “1% rule” was instituted by Union Pacific in reliance on the FMCSA Handbook, 

as Carlton alleged. Filing 1 at 7 (¶ 27) (“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.”).

First, regarding “circumstances of” reliance on the Handbook as purportedly “g[iving] rise 

to an inference of discrimination,” Smothers, 63 F.4th at 728, Carlton only alleges the following:

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. . . . 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. . . . By 

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

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Handbook from its website and no longer endorsed its use. . . . 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.

Filing 1 at 6 (¶¶ 23–26). However, Carlton has adduced no evidence to plausibly suggest that using 

the standards in the Handbook is inappropriate simply because it was intended for a different 

industry. See generally Filing 1. The Court observes that Carlton alleges that the Handbook was 

designed for “drivers operating a commercial vehicle in interstate commerce,” that is, designed for 

a plainly related transportation industry. Filing 1 at 6 (¶ 23). The heart of the issue is whether 

Union Pacific’s reliance on the FMCSA Handbook “gave rise to an inference of discrimination” 

because it “treated similarly-situated employees in a disparate manner.” Smothers, 63 F.4th at 728. 

In essence, Carlton wants the Court to hold that a reasonable person could “infer” that Union 

Pacific relied on safety standards from a federal agency concerning a related industry because it 

“more likely than not” intended to discriminate against disabled employees. Young, 575 U.S. at 

228. Such an inference is simply not plausible, for the following reasons.

Carlton implies that Union Pacific relied on the Handbook as a “pretext” to discriminate 

against him and other disabled employees, i.e., that Union Pacific relied on governmental safety 

information that was known to be “outdated” and intended for the commercial vehicle industry 

rather than the railroad industry so that Union Pacific could intentionally remove him from service. 

In effect, Carlton wants the Court to infer that: (1) Union Pacific adopted facially neutral4safety 

standards because it knew the standards would have the effect of disproportionately discriminating 

against disabled employees; (2) Union Pacific intended or desired this effect; (3) Union Pacific’s 

4 Although Carlton alleges the FFD policy is “facially discriminatory,” the Court rejected that argument in a 

preceding section. Filing 1 at 14 (¶ 72).

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reasons for relying on federal safety standards were not because Union Pacific believed that the 

standards would serve to protect its employees from workplace hazards; (4) any safety rationale 

for relying on the FMCSA is a mere pretext for disability discrimination; and (5) the fact that the 

Handbook was intended for the trucking industry rather than the railroad industry and that the 

Handbook was taken off the FMCSA website is evidence that Union Pacific’s reliance on the 

Handbook was pretext for intentional discrimination. The Court finds that this series of inferences 

is implausible.

Carlton also implies that the Court should require Union Pacific to contradict federal 

agency safety standards applicable to a related industry, which the Court is reluctant to do. See 

Boersig v. Union Elec. Co., 219 F.3d 816, 822 (8th Cir. 2000) (noting that compliance with the 

employee’s “argument would require an employer to accommodate a disabled employee by 

violating the express terms of a CBA”); Filing 1 at 14–15 (seeking “[a]n injunction against Union 

Pacific . . . from engaging in each of the unlawful practices, policies, customs, and usages set forth 

herein”). Moreover, if Carlton asserted that these standards merely have the effect (under a 

disparate-impact theory) of discriminating against Carlton and other disabled individuals, the 

Court would likely find his conclusion to the chain of inference more plausible. Instead, Carlton 

alleges that “it is reasonable to infer that Union Pacific intentionally discriminated against Carlton” 

by having these standards. Filing 10 at 16. The notion that Union Pacific would adopt federal 

safety standards because it intended to discriminate against disabled employees is too farfetched 

to be plausible.

The Court turns to the issue of determining whether Union Pacific’s reliance on Carlton’s 

medical records to conduct his FFD evaluation—instead of conducting its own examination of 

Carlton or adopting his doctors’ opinions wholesale—constitutes indirect evidence of disparate 

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treatment. Filing 10 at 15–16. Carlton does not explain why relying on his medical records to 

conduct an FFD evaluation is indirect evidence of discrimination. Nor does Carlton explain why 

conducting its own individualized FFD evaluations or adopting the opinions of his doctors would 

instead be non-discriminatory. Instead, Carlton simply asserts that “it is reasonable to infer that 

Union Pacific intentionally discriminated against Carlton.” Filing 10 at 16. The necessary 

inference here would be that relying on medical records alone allows Union Pacific so much 

discretion to impose restrictions based on disabilities as compared to conducting physical 

examinations or adopting the opinions of an employee’s personal physician would be as to imply 

a discriminatory animus and demonstrate pretext. The Court also finds this allegation too removed 

from plausibility “to support a reasonable inference that the defendant is liable.” Richardson, 2 

F.4th at 1068. Therefore, Carlton has not sufficiently alleged any indirect evidence of disparate 

treatment. 

In sum, neither Union Pacific’s reliance on the FMCSA Handbook nor its reliance on 

Carlton’s medical records are “actions taken by the employer from which one can infer . . . that it 

is more likely than not that such actions were based on a discriminatory criterion.” Young, 575 

U.S. at 228. Thus, even when making all possible inferences in favor of Carlton, the Court holds 

that he has not sufficiently alleged indirect evidence of disparate treatment because the “factual 

allegations lack[ ] enough specificity to raise a right to relief above the speculative level.” 

Richardson, 2 F.4th at 1068. Therefore, because Carlton failed to plead either direct or indirect 

evidence of disparate treatment, his disparate-treatment claim is dismissed for failure to state a 

claim upon which relief can be granted.

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III. CONCLUSION

For these reasons, the Court dismisses Count II, Carlton’s disparate-treatment claim under 

42 U.S.C. § 12112(b)(6), even though the Court finds that Carlton attempted to allege disparate 

treatment and not disparate impact. Count II must be dismissed because the Complaint fails to 

plead facts sufficient to state a disparate-treatment claim upon which relief can be granted. In 

addition, any claim that Carlton has an “actual” or a “record of” disability is dismissed. Any claim 

based on a failure to accommodate is also dismissed. The Court also denies Carlton’s Motion for 

Oral Argument. Accordingly,

IT IS ORDERED:

1. Defendant's Motion to Dismiss, Filing 6, is granted; and

2. Plaintiff’s Motion for Oral Argument, Filing 12, is denied.

Dated this 29th day of September, 2023.

BY THE COURT:  

_________________________

Brian C. Buescher 

United States District Judge

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