You Can Win ADA Claims- Show Individualized Analysis and No Knee-Jerk Decisions

Today, the Eight Circuit handed down a well-reasoned decision in plaintiff’s appeal of its loss in an ADA and State Whistleblower claim. 

A locomotive machinist  was sent for examination and not allowed to return to work after being diagnosed with a degenerative eye disease lacks.

The court concluded that the employer did  not violate the ADA by refusing to allow the employee to return to his job after he was diagnosed with advanced stage retinitis pigmentosa, a degenerative disease causing tunnel vision and night blindness.

The doctor recommended several work restrictions, including that the engineer-machinist could not perform a job with more than a 15 degree visual field, which the employer determined was incompatible with the job’s essential functions. The company explained that work was performed in a “360-degree environment” that featured shifting light and much climbing, bending, and walking on uneven surfaces. They apparently backed their claims with objective evidence and a good job analysis/description; NOT a lot of speculation.

The jury’s verdict was based on evidence that the employee fell on a slick, uneven surface at work a few months before the employer required the eye exam, as well as supervisors’ testimony that co-workers noticed that his peripheral vision seemed limited, and that he even reached for items that were not present.

The medical evidence supported the employer and even the employee’s own physician raised concerns, which is unusual.  Often the employee’s treating physician wants to see his patient employed and strains to argue that the patient can do the essential functions and does not constitute a direct threat.  Kind of refreshing….

FROM THE APPELLATE DECISION:  Hohn chose to see Dr. Dietrich, and although Hohn disputed the restrictions and testified that he was performing tasks that ran afoul of them, Hohn did not offer medical evidence to contradict the restrictions. Hohn’s own medical expert expressed concern about Hohn’s ability to perform any activities that required movement, including operating a crane, “being in a motor vehicle, motorized cart, [or] doing the train.”

The Appellate Court observed that in light of so much evidence,  “a reasonable jury could find that Hohn’s visual impairments precluded him not only from performing the essential functions safely, but from performing them at all.”

The employer chose not to argue the often more difficult-to-prove argument of direct threat and maintained a tight focused defense that the employee could not perform the essential functions of the job.  Nice lawyering and good preparation by the employer. 

The lower court also excluded evidence and resulting confusion by delving unnecessarily deep into the alleged safety failings.  It is nice to see a court acknowledge that the details and even the merits of the safety claims may or may not be a factor or evidence of a valid retaliation claim.  But it’s tough keeping the two lines of analysis seperate.

FROM THE APPELLATE DECISION:  Hohn argues that the safety-complaint evidence is relevant because it would have helped prove that he could perform the essential functions of a locomotive machinist.  He contends that the circumstances surrounding the complaint constituted evidence that BNSF retaliated against him when it required him to submit to a medical exam.

 Specifically, the timing of Hobbs’s decision to withhold Hohn from service coincided with Hobbs receiving notification of Hohn’s complaint and responding to it. According to Hohn, the excluded evidence thus would rebut the evidence that he was withheld from service because his supervisors were concerned about his vision. Instead, he argues that the evidence supports a finding that “BNSF believed he could perform the essential functions of his job without any problems immediately before he was withheld from service.”

 We disagree. The disputed evidence may have helped explain Hohn’s theory that he was withheld from service for reporting a safety violation, but BNSF’s motivation for placing him on medical leave is not necessarily a fact of consequence.  At best, the safety-complaint evidence would have supported an inference of retaliation for withholding Hohn from service.

I quote this discussion to remind you to caution supervisors to be sensitive not only to an employee’s protected status, but any ostensible protected conduct when discharging an employee.  I’m not saying that the discharge should be delayed or not carried out, but more documentation and preparation may be helpful.

These retaliation/whistleblower cases, like so many pregnancy discrimination cases, so turn on “timing” and unfortunate coincidence.  Put simply, often the facts “just look bad.”

The employee also appealed the dismissal of his Nebraska State retaliation claim, arguing that the employer ordered the medical evaluation in April 2004 because during the same month, he had supposedly raised a concern about an unsafe locomotive, and called a railway safety hotline after the supervisors refused to withdraw the locomotive from service. This is the common element of OSHA 11 c or other retaliation/whistleblower claims… point to any comment made about safety around the time of adverse action, and allege a connection.

However, the employee could not link to his opposition to the railroad’s alleged “unlawful act.”   He did not show that but-for his protected action, he would not have been terminated.  However, in reading the decision, it seems as if the employer artfully kept the focus on the separate facts of the employee’s performance issues, and did not allow the alleged protected activity to muddle the facts.


Read the case and work backwards.  The employer laid out a good case.  They did not engage in knee-jerk behavior. and the often fickle gods of justice smiled on the employer. 





About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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