United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50782

____________

Joseph Carrillo, 

Plaintiff—Appellant, 

versus

Union Pacific Railroad Company, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 3:21-CV-26

______________________________

Before Dennis, Engelhardt, and Oldham, Circuit Judges.

Per Curiam:*

Joseph Carrillo sued Union Pacific Railroad Company for violating 

the Americans with Disabilities Act. The district court granted summary 

judgment in favor of Union Pacific. We affirm. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

August 19, 2024

Lyle W. Cayce

Clerk

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I.

A.

This case centers around safety rules developed by Union Pacific 

Railroad Company (“Union Pacific”). Union Pacific developed its safety 

rules in response to several accidents, including one where a Union Pacific 

engineer had a seizure while operating a train, and in response to repeated 

recommendations from the National Transportation Safety Board 

(“NTSB”) to create comprehensive medical standards and enhanced 

fitness-for-duty requirements for employees in safety-critical positions. The 

NTSB specifically recommended that when the railroad learned of an 

employee’s “potentially incapacitating or performance-impairing medical 

condition,” the railroad prohibit the employee from performing any safetysensitive duties until the railroad’s designated physician determined that the 

employee could return to work safely. 

As a result, Union Pacific developed a fitness-for-duty (“FFD”) 

program in 2014 to determine if employees had impairments, such as a risk 

of sudden incapacitation, that could pose a safety risk. The FFD process 

would begin when Union Pacific learned that an employee had a seizure or 

loss of consciousness. Union Pacific would work with the employee to gather 

pertinent medical records and review said records. And Union Pacific 

doctors often would submit cases to outside doctors for independent 

evaluation. Union Pacific doctors would then make work restriction 

recommendations to the employee’s supervisor. The supervisor would then 

decide on an individualized basis whether the employee could perform his 

essential job functions within the restrictions. 

B.

Joseph Carrillo was a diesel electrician for Union Pacific. He would 

inspect locomotive electrical systems, perform maintenance and repairs on 

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locomotives, and move locomotives around the railyard. As part of his job, he 

had to climb on top of the locomotives, lift heavy objects, and balance on 

elevated catwalks, running boards, and railcar roofs while making repairs. 

Diesel electricians like Carrillo sometimes worked on locomotives alone. Due 

to the safety hazards of his position, Carrillo had to meet certain physical 

standards, undergo extensive safety training, and abide by dozens of rules in 

the railyard. 

One morning in June 2017, while Carrillo was at home getting ready 

for work, he suddenly went unconscious and bit his tongue. His wife found 

him lying on the floor. He reported to work and told his supervisor that he 

“fainted or had a seizure.” His supervisor told him to stop working and 

reported Carrillo’s remarks to his managers. Union Pacific subsequently

placed Carrillo on medical leave of absence and initiated an FFD evaluation. 

Carrillo then met with a series of doctors. First, he met with his 

primary care provider and nurse practitioner, Ms. Saenz. He told her that he 

fainted, bit his tongue, and woke up on the floor without any recollection of 

the event. He did not report any other symptoms. Ms. Saenz did not think 

she had enough information to provide an accurate diagnosis and ordered 

additional testing and follow-up appointments. She never cleared Carrillo to 

return to work. 

Carrillo then met with cardiologist Dr. Motta. Carrillo told Dr. Motta 

that he was unconscious for five minutes and was very confused when he 

woke up. Dr. Motta ordered an exercise stress test; Carrillo failed it. 

Finally, Carrillo saw neurologist Dr. Aguilar. Carrillo reported that he 

had constant headaches since the episode, lower back pain, anxiety episodes, 

issues with memory recall, and hypersensitivity in his arm, chest, abdomen, 

and leg. Dr. Aguilar recorded several possible diagnoses, including a single 

unprovoked seizure. Dr. Aguilar told Carrillo not to drive and “to avoid any 

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other activities in which [he] could sustain any injuries or [he] could cause 

injuries to others if a seizure were to recur.” Carrillo saw Dr. Aguilar three 

additional times in a four-month period. At the last appointment, Dr. Aguilar 

noted that Carrillo’s condition had improved, removed the activity 

restrictions, and recommended Carrillo continue to see his primary care 

provider. Dr. Aguilar never reached a definitive diagnosis, but she continued 

to note that Carrillo could have suffered a seizure, either unprovoked or 

provoked. 

Carrillo submitted various diagnostic medical records to Union 

Pacific, including MRI, EKG, and EEG results. These records were reviewed 

by Dr. Charbonneau, the Union Pacific Associate Medical Director. After 

obtaining additional information from Carrillo, including the results of the 

stress test and notes made by Ms. Saenz and Dr. Aguilar, Dr. Charbonneau 

concluded that Carrillo likely had a seizure. 

But Union Pacific did not stop there. It then submitted Carrillo’s 

records to Dr. Frankel at the University of Nebraska for an independent 

evaluation. Dr. Frankel concluded that Carrillo likely experienced an isolated 

seizure and he was at a significant risk of sudden incapacitation for the next 

five years based on the best objective medical evidence. 

Then another physician at Union Pacific—Dr. Holland—reviewed 

Carrillo’s records and Dr. Frankel’s report. Dr. Holland agreed with Dr. 

Frankel that Carrillo most likely experienced a seizure and was at risk of 

sudden risk of incapacitation for five years after the event. He recommended 

certain work restrictions for five years. 

Andreas Mader, the senior manager of shop operations, reviewed Dr. 

Holland’s report and issued safety restrictions to mitigate Carrillo’s risk of 

future incapacitation. Based on his knowledge of Carrillo’s position as a 

diesel electrician, Mader concluded that the restrictions interfered with 

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Carrillo’s essential job functions, and reasonable accommodations could not 

be provided without removing those essential functions. Carrillo applied for 

other positions at Union Pacific, but Union Pacific denied his applications 

because each job would require him to perform tasks outside of his 

restrictions. 

C.

Carrillo brought multiple claims under the Americans with 

Disabilities Act (“ADA”) against Union Pacific. The district court dismissed 

most of his claims and later granted summary judgment in favor of Union 

Pacific on his disability discrimination, or disparate treatment, claim. Carrillo 

timely appealed the summary judgment order. 

Carrillo’s disparate treatment claim is the only one before us. Our 

review is de novo. See Playa Vista Conroe v. Ins. Co. of the W., 989 F.3d 411, 414 

(5th Cir. 2021). We construe all facts in favor of Carrillo as the non-moving 

party. Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).

II.

A.

The ADA prohibits companies from “discriminat[ing] 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.” 42 U.S.C. § 12112(a). To survive summary judgment, an 

employee must provide direct or circumstantial evidence of unlawful 

discrimination. See Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019). 

But even if an employee provides such evidence, the ADA allows 

employers to defend a charge of discrimination by raising a direct threat 

defense. See 42 U.S.C. § 12113(a). The defense applies where “an alleged 

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application of qualification standards, tests, or selection criteria that screen 

out or tend to screen out or otherwise deny a job or benefit to an individual 

with a disability [is] job-related and consistent with business necessity, and 

such performance cannot be accomplished by reasonable accommodation.” 

Ibid. In doing so, the defense balances “the importance of prohibiting 

discrimination against individuals with disabilities” with the unquestionable 

need for businesses to “protect[] others from significant health and safety 

risks.” Bragdon v. Abbott, 524 U.S. 624, 649 (1998).

The direct threat defense protects the employer even if the employer

does not reach the correct diagnosis. The employer must simply make a 

“reasonable medical judgment” based on the “most current medical 

knowledge” or “the best available objective evidence,” and upon an 

“individualized assessment of the individual’s present ability to safely 

perform the essential functions of the job.” Chevron U.S.A., Inc. v. Echazabal, 

536 U.S. 73, 86 (2002) (quotation omitted). In doing so, courts consider 

(1) the duration of the risk, (2) the nature and severity of potential harm, 

(3) the likelihood that potential harm will occur, and (4) the imminence of 

potential harm. See ibid.; 29 C.F.R. § 1630.2(r). The direct threat defense 

reflects the wisdom that business necessities and “medical determinations of 

this sort are best left to team doctors and universities” rather than courts. 

Knapp v. Northwestern Univ., 101 F.3d 473, 484 (7th Cir. 1996). The circuits 

are split on which party bears the burden to prove or disprove the direct 

threat defense. EEOC v. Steel Painters, LLC, 433 F. Supp. 3d 989, 1003 (E.D. 

Tex. 2020) (collecting cases).

B.

We need not take sides on that split, however, because Union Pacific 

easily satisfied the necessary criteria in any event. 

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First, Union Pacific made a reasonable medical judgment that relied 

on the best available objective evidence. See Chevron, 536 U.S. at 86. Carrillo 

underwent extensive cardiology and neurology examinations and sat for a 

battery of tests, including a stress test, an MRI, an EKG, and an EEG. Union 

Pacific thoroughly evaluated Carrillo’s medical records, requested additional 

information, and submitted the case for independent review by a doctor at 

the University of Nebraska. Union Pacific abided by its standard, extensive 

FFD protocol as recommended by the NTSB. Cf. Nall, 917 F.3d at 346 n.8

(forbidding an employer from “chang[ing] the disqualification criteria in the 

middle of the evaluation to dictate that outcome”). At least five doctors

evaluated Carrillo after his episode of unconsciousness: cardiologist Dr. 

Motta, neurologist Dr. Aguilar, Dr. Charbonneau, neurologist Dr. Frankel, 

and Dr. Holland. Several years later, another University of Nebraska 

neurologist, Dr. Diesing, corroborated Dr. Frankel’s findings and Union 

Pacific’s decision to issue restrictions. And those University of Nebraska 

doctors concluded that Union Pacific relied on the best objective evidence 

throughout and at the time of the evaluation. Even Dr. Devereaux, who met 

with Carrillo four years after the episode and testified on his behalf, could not 

rule out a seizure diagnosis and concluded that the diagnosis was “not 

unreasonable based on the information available.” 

Second, Union Pacific conducted an individualized evaluation of 

Carrillo’s ability to perform his essential job functions. As discussed above, 

Carrillo went through multiple rounds of testing, interviews, and 

independent review. And after almost a year of these appointments, a 

manager—Andreas Mader—issued the final restrictions. Mader understood 

what was required of Carrillo as a diesel electrician. He could conclude from 

the doctors’ reports that Carrillo could not perform his essential job 

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functions.1 It is unclear what more Carrillo would have Union Pacific do to 

individualize its evaluations.

Finally, the railroad’s restrictions properly accounted for the duration 

of the risk, the nature and severity of potential harm, the likelihood of 

potential harm, and the imminence of potential harm. See 29 C.F.R. 

§ 1630.2(r). First, the record contains undisputed evidence that a second 

seizure is a high risk for several years after the first—a risk that only time can 

mitigate. Carrillo’s own expert recognized this. Second, the nature and 

severity of potential harm was great. Carrillo’s job required him to move or 

direct trains in an active railyard. He had to climb on those trains and balance 

on precarious catwalks as high as eighteen feet in the air. He—and everyone 

else in the railyard—would be significantly endangered if he suddenly lost 

consciousness. And the likelihood and imminence of potential harm was 

great. Again, Carrillo’s own expert did not dispute that. Thus, there was a 

strong chance of harm to Carrillo, others, and Union Pacific property for 

several years. Union Pacific’s decision to impose restrictions for five years 

was reasonable.

C.

None of the evidence provided by Carrillo creates a genuine dispute 

of material fact. The fact that the doctors did not interview Carrillo’s wife

does not undermine their conclusions; Carrillo relayed her account to 

multiple doctors. The fact that Union Pacific’s doctors did not personally 

meet with Carrillo also does not undermine their conclusions; these doctors

_____________________

1 Dr. Holland’s FFD memo incorrectly notated Carrillo’s job title as “Conductor.” 

But this minor error did not affect his conclusion that Carrillo had probably suffered a 

seizure and should avoid activities where loss of consciousness would pose a safety risk. 

Beyond that, it was Mader who knew of Carrillo’s responsibilities and made the final call 

regarding work restrictions for Carrillo. 

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relied on extensive medical reports submitted by the doctors who did.2

Moreover, the direct threat defense does not require a company to mine all 

sources of evidence. Cf. Jarvis v. Potter, 500 F.3d 1113, 1124 (10th Cir. 2007) 

(concluding that the employer did not need to seek “further medical advice 

or conduct[] a fitness-for-duty examination” after it received one letter from 

an employee’s therapist about his PTSD). Union Pacific’s thorough yearlong process was more than enough for the doctors to conclude Carrillo could 

not safely perform certain tasks. See ibid. 

Nor does it matter that Union Pacific looked partly to guidance 

documents from the Federal Motor Carriers Safety Administration

(“FMSCA”) that were not peer-reviewed and were removed from the 

FMCSA website. It is undisputed on this record that the guidance documents 

were evidence-based and developed through a consensus of medical experts. 

And independent doctors at the University of Nebraska agreed with Union 

Pacific that these documents were consistent with the best evidence from the 

medical literature. Carrillo does not identify medical literature missing from 

Union Pacific’s consideration, and he does not claim that Union Pacific 

“intentional[ly] disregard[ed]” the best objective evidence. Nall, 917 F.3d at 

347. In fact, his own expert testified that the seizure diagnosis was not 

unreasonable, and he agreed that the risk of a second seizure persists for 

several years after an initial one. 

_____________________

2 Moreover, none of our direct threat precedents require that an employer have its 

own doctors meet with or examine an employee before taking appropriate action, likely 

because many companies do not employ doctors on their staff. And it cannot be that Union 

Pacific’s choice to employ medical experts like Dr. Charbonneau and Dr. Holland can be 

used to heighten the direct threat standard, so as to require large corporations which 

employ doctors to meet a higher bar than small businesses which do not. The same point 

applies to Union Pacific’s above-and-beyond decision to refer the case to an outside doctor.

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Rather, Carrillo points to one email from one doctor who opined that 

the guidance documents are not reliable. But that alone is insufficient to 

prohibit Union Pacific from consulting them as part of its FFD program. See 

Bragdon, 524 U.S. at 650. Nor is Union Pacific prohibited from consulting 

the guidance documents simply because they were created for vehicle 

carriers; Carrillo offers no reason why a railroad could not consult the 

documents more broadly. And after failing to adopt its own comprehensive 

standards, the Federal Railroad Administration encouraged railroad 

companies to look to regulations governing other transportation regulatory 

bodies. Union Pacific merely followed this instruction. 

III.

Our dissenting colleague takes issue with our analysis of the direct 

threat defense. With greatest respect, we disagree with his criticisms.

First, the dissenting opinion argues that Dr. Frankel, the independent 

doctor at the University of Nebraska, made his evaluation on “an incomplete 

medical record” provided by Union Pacific. See post, at 14 & nn. 2–3. But Dr. 

Charbonneau sent Dr. Frankel a comprehensive list of materials, which 

included Dr. Aguilar’s thorough notes. And insofar as Dr. Charbonneau’s 

cover letter might have omitted some of the facts in those notes, Dr. 

Frankel’s report shows that he closely examined and relied on the underlying 

records.

Second, the dissenting opinion claims that Dr. Charbonneau

disagreed with the assessments of the three medical professionals who 

personally examined Carrillo, thus making this case inappropriate for 

summary judgment. See post, at 12–15. But Dr. Charbonneau’s assessment 

that Carrillo had likely suffered a seizure did not “conflict” with the findings 

of the other medical professionals. Contra post, at 14. That is because none of 

these individuals either ruled out a seizure diagnosis or adopted a non-seizure 

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diagnosis. To the contrary, Dr. Aguilar—who saw Carrillo more than the 

other providers—repeatedly asserted that Carrillo could have suffered from 

either an unprovoked or provoked seizure. And even if Dr. Charbonneau had 

disagreed with one of the other medical professionals, the direct threat 

analysis asks whether the employer made a “reasonable medical judgment,”

Chevron, 536 U.S. at 86—not whether every examining doctor came to the 

same exact conclusion.

Lastly, the dissenting opinion contends that Union Pacific’s argument 

regarding its individualized assessment is undermined by the broad scope of 

Carrillo’s work restrictions. See post, at 15. Insofar as an individualized 

assessment reveals substantial concerns about employee safety, however,

broad work restrictions may be appropriate. Given the amount of time and 

effort that Union Pacific spend in evaluating Carrillo, the breadth of his

restrictions does not undercut the company’s direct threat defense.

* * *

There is no genuine dispute of material fact that Union Pacific’s 

assessment and precautions were objectively reasonable. The district court 

therefore correctly entered summary judgment in favor of Union Pacific.

AFFIRMED.

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James L. Dennis, Circuit Judge, dissenting:

As the majority correctly recognizes, the question before us is whether 

Union Pacific deprived Mr. Carrillo of his livelihood because he was a “direct 

threat” to the health and safety of others. As we (and the Supreme Court) 

have previously made clear, “an employer’s direct threat determination 

must result from an ‘individualized assessment’ of the particular employee 

based on the ‘best available objective evidence.’” Nall v. BNSF Ry. Co., 917 

F.3d 335, 344 (5th Cir. 2019) (quoting Chevron U.S.A., Inc. v. Echazabal, 536 

U.S. 73, 86 (2002)). So, if “[a] reasonable jury could conclude that [the 

employer]” either “did not consider the ‘best available objective evidence’ 

or meaningfully engage in an ‘individualized assessment’ of whether [the 

employee] could perform the essential duties of [their job] safely,” summary 

judgment is inappropriate. Nall, 917 F.3d at 343. Because a reasonable jury 

could do so here, I respectfully dissent.

There is sufficient evidence in the record to suggest that Union Pacific 

neither considered the “best available objective evidence” nor made an 

“individualized assessment” of Mr. Carrillo when it found that his single 

incident of unconsciousness was enough to determine that he had a seizure, 

and thus his continued employment would pose a direct threat to the safety 

of others. 

First, the record shows that only three health care professionals ever 

conducted physical assessments of Mr. Carrillo, none of whom concluded 

that he suffered a seizure. Ms. Saenz, a nurse-practitioner and Mr. Carrillo’s 

primary care provider, examined him shortly after the unconsciousness event 

but did not mention the possibility of a seizure in her examination notes. She 

did, however, refer him to two other doctors for further testing. One, Dr. 

Motta, a cardiologist, conducted a stress test, but likewise never mentioned 

the possibility of a seizure. The other, Dr. Aguilar, a neurologist, saw Mr. 

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Carrillo multiple times over the following months. During her assessments, 

she noted that Mr. Carrillo’s EKGs and MRIs were normal and did not 

indicate that he had suffered a seizure. By their final medical visit, Dr. Aguilar 

removed the activity restrictions she had previously imposed on Mr. Carrillo 

due to his unconsciousness event. She was unable to conclude what caused 

Mr. Carrillo’s episode of unconsciousness, but did list multiple possible 

causes, one of which was a “single unprovoked seizure.” None of these 

healthcare professionals ever suggested that it was unsafe for Mr. Carrillo to 

return to work.

Despite the lack of certainty, Union Pacific did not conduct nor 

request any further physical examinations of Mr. Carrillo. Instead, Dr. 

Charbonneau, who is not a neurologist, merely reviewed Mr. Carrillo’s 

records (not Mr. Carrillo himself), without speaking to the sole eyewitness of 

the unconsciousness event or Mr. Carrillo’s treating physicians. Even though 

he lacked subject matter expertise, Dr. Charbonneau made an affirmative 

diagnosis that Mr. Carrillo likely suffered a seizure, when two other doctors

(including a neurologist) with direct experience examining Mr. Carrillo could 

not do so.1

 And when an employer relies on the assessments of doctors who 

lack training in the relevant field—as Union Pacific did here—over the 

assessments of doctors with relevant training, “a reasonable jury could 

conclude that [Union Pacific] failed to rely upon a reasonable medical 

judgment that relies on the most current medical knowledge and/or on the 

_____________________

1 While Mr. Carrillo’s doctors included seizure as a potential cause of his 

unconsciousness episode, they explicitly determined that could not make a positive 

diagnosis of what likely caused his condition. “Single unprovoked seizure” was one of eight 

listed possible causes, one of which was just “others.” Union Pacific’s Dr. Holland even 

acknowledged that things as unthreatening as dehydration can contribute to an 

unconsciousness episode. However, despite having the same information and less 

expertise, Union Pacific still positively concluded that Mr. Carrillo suffered a seizure.

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best available objective evidence.” See Echazabal v. Chevron USA, Inc., 336 

F.3d 1023, 1028 (9th Cir. 2003) (internal quotations omitted) (finding that 

the employer’s reliance on the assessment of two doctors without “any 

special training in liver disease” instead of subject matter experts to conclude 

that an employee’s liver issues created a direct threat contributed to a 

material fact dispute); see also Nall, 917 F.3d at 346 (citing Echazabal for the 

proposition that “medical opinion letters from the employee’s doctors, 

together with the employee’s own declaration, raised a material fact issue as 

to the objective reasonableness of the employer’s opinion.”)

Further, while the majority touts that other doctors (University of 

Nebraska’s Dr. Frankel and Union Pacific’s Dr. Holland) agreed with Dr. 

Charbonneau, they made their assessments based on Dr. Charbonneau’s 

conclusion, an incomplete medical record,2 and without ever talking to or 

physically examining Mr. Carrillo.3 The conflict between Dr. Aguilar’s and 

Dr. Charbonneau’s assessments suggests that there is indeed a dispute of 

material fact. Nor does the majority’s interpretation of the two doctors 

contrasting diagnoses mesh with the unequivocal requirement that we must 

view “all facts and evidence in the light most favorable to [Mr. Carrillo].”

Nall, 917 F.3d at 340. And a reasonable jury may find that the diagnoses of 

three doctors who never assessed the patient directly were not “the best 

_____________________

2 When asking Dr. Frankel to review Mr. Carrillo’s condition, Union Pacific failed 

to include the entirety of Dr. Aguilar’s differential diagnosis. The referring paperwork also 

stated that “there was no clear explanation of why he takes [Gabepentin],” (a medicine 

that may be used to treat seizures), even though Mr. Carrillo had already explained that he 

had been taking it for two years to treat numbness from a previous elbow surgery. 

3 Like Dr. Charbonneau, these doctors never discussed the loss of consciousness 

incident with Mr. Carrillo’s wife, the sole witness to the incident, nor any of his treating 

physicians.

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available objective evidence.” Nall, 917 F.3d at 344. That alone should 

preclude summary judgment. 

The majority’s citation to Jarvis v. Potter, 500 F.3d 1113, 1124 (10th 

Cir. 2007), to argue that an employer did not need to seek “further medical 

advice” beyond a single letter from a physician is inappropriate and 

unavailing. There, not only did the employee’s own psychologist inform the 

employer that he was a direct threat to the safety of other employees, but the 

employee admitted himself that his PTSD caused him to be a danger to others 

and the diagnosis was corroborated by previous safety incidents. Id. A single 

physician’s opinion might be sufficient to show a direct threat in that 

circumstance, but Jarvis does not give Union Pacific carte blanche to make 

summary conclusions about an individual’s livelihood without so much as a 

physical examination.4

Second, there is also sufficient evidence in the record to suggest that 

Union Pacific failed to make a sufficiently “individualized assessment” when 

it implemented work restrictions preventing Mr. Carrillo from returning to 

work for at least five years. The restrictions themselves are so broad and 

vague—for instance, prohibiting Mr. Carrillo from performing work that 

requires “critical decision making,” a term that Union Pacific does not 

define—that a juror could conclude they were generic, and not the product 

of an individualized assessment. 

The “individualized” evaluations on which the restrictions were 

based include basic mistakes of fact. For example, when conducting his 

fitness for duty determination, Dr. Holland, Union Pacific’s Chief Medical 

Officer, listed Mr. Carrillo’s job title as a “conductor.” He is in fact a diesel 

electrician, a position that obviously presents different safety concerns. Dr. 

_____________________

4 Or even a conversation with that individual’s treating physicians. 

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Holland also failed to discuss Mr. Carrillo’s condition with Mr. Carrillo 

himself or his treating physicians when making his assessment. 

Further still, when formulating its work restrictions, Union Pacific 

relied on a medical handbook, the “Federal Motor Carrier Safety 

Administration Medical Evaluation Handbook” (the “FMCSA MEH”),5

that provides guidance for vehicular commercial driving medical 

examinations, not examinations of diesel electricians working for railroads. 

Mr. Carrillo submitted expert testimony that medical experts do not consider 

the FMCSA MEH to be a reliable guidance for formulating work restrictions 

for railway workers, in part because it was not peer-reviewed, a cornerstone 

of good medical evidence. While Union Pacific’s reliance on outdated (and 

likely irrelevant) guidance for commercial driving does not alone preclude 

summary judgment, when assessed in the light of the report which 

improperly identified Mr. Carrillo’s job title and the subsequent imposition 

of generic work restrictions, it supports a finding that there is a dispute of 

material fact about whether Union Pacific made a sufficiently individualized 

assessment of whether Mr. Carrillo could return to work safely. The majority 

fails to cite to any support to the contrary or explain how the generic work 

restrictions that resulted from the review of a questionably relevant, 

unquestionably outdated, manual could possibly constitute an 

“individualized assessment” of Mr. Carrillo’s circumstances. 

Ultimately, the majority accepts that a superficial review of paper 

records by individuals without subject matter expertise is “the best available 

objective evidence,” and that Union Pacific’s generic work restrictions 

resulting in Mr. Carrillo’s termination reflect the “result of an individualized 

_____________________

5 The FMCSA removed the MEH at issue, from 2014, from its website, and no 

longer endorses the use of the MEH for certification of commercial drivers. 

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assessment of the individual’s present ability to safely perform the essential 

functions of the job.” Maj. Op. at 6–7. But that is not the correct standard to 

apply when determining if Union Pacific has established that Mr. Carrillo 

presented a direct threat as a matter of law. It is not sufficient for Union 

Pacific to merely present a scintilla of evidence that it made a proper direct 

threat analysis; it must show that no “reasonable jury could conclude that 

[the employer]” either “did not consider the ‘best available objective 

evidence’” or did not “meaningfully engage in an ‘individualized 

assessment’ of whether [the employee] could perform the essential duties of 

[their job] safely.” Nall, 917 F.3d at 343. Because Union Pacific has not 

shown that here, I respectfully dissent. 

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