United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, U.S. DISTRICT COURT JUDGE
Larry Robson brought this action against Defendant Union
Pacific Railroad Company for disability discrimination in
violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101. Before the Court
are Union Pacific's Motion for Summary Judgment (Dkt.
32), and Robson's Objection to Exhibit 1Q in Support of
Defendant Union Pacific Railroad Company's Motion for
Summary Judgment (Dkt. 40). The Court heard oral arguments on
the motions on October 16, 2019 and took them under
advisement. For the reasons discussed below, the Court will
deny Defendant's motion for summary judgment, and deny
Plaintiff's objection to Exhibit 1Q as moot.
Larry Robson has been employed by Union Pacific since May
2004. Compl. ¶ 7, Dkt. 1. He is currently
employed as a machinist. Id.
September 4, 2015, Robson suffered a severe traumatic brain
injury due to an ATV accident. Compl. ¶ 8;
see Def.'s SOF ¶ 11, 37, Dkt. 34. A CT scan
showed that Robson had “a left convexity subarachnoid
hemorrhage with punctate hyperdensity in his left anterior
temporal lobe and parietal lobe suspicious for cortical
contusions.” Def.'s Ex. 1F, Dkt. 33 at 76.
This means he had bleeding within his brain, between the
brain and the membrane that covers the brain, and between
that membrane and the skull. Robson was released from the
hospital, but on September 8, 2015, Robson awoke confused and
disoriented, he was readmitted to the hospital for
observation. Def.'s Ex. 1G, Dkt. 33 at 81.
Robson's treating neurosurgeon, Dr. Morgan, determined
that Robson's symptoms were most likely due to
post-concussive symptoms and not a seizure. Morgan
Depo. at 38-40, Dkt. 39-7.
October 14, 2015, Robson was authorized to return to work
without restrictions by his treating Nurse Practitioner.
Def.'s Ex. 1M, Dkt. 33 at 100. Union
Pacific required Robson to undergo a medical fitness-for-duty
evaluation before it would allow him to return to work.
Pl.'s Ex. C at 2-3, Dkt. 39-3. On November 12,
2015, Dr. Reed Wilson, a consulting neurologist, reviewed
Robson's medical records and determined that Robson had
suffered a severe traumatic brain injury. Dr. Wilson
recommended that Robson be placed on permanent restrictions
from safety critical work based on guidance from the Federal
Motor Carrier Safety Administration Medical Examiner's
Handbook. Def.'s Ex. 1M, Dkt. 33 at
102. Dr. John Holland, Chief Medical Officer for
Union Pacific, adopted this recommendation and issued a
Fitness-for-Duty Determination for Robson permanently
restricting him from (1) operating company vehicles, on track
equipment or other mobile equipment, or forklifts (2) working
on or near moving trains, freight cars or locomotives without
protective barriers, (3) operating cranes, hoists or
machinery, (4) working at unprotected heights above four feet
above ground, and (5) making decisions or performing acts
that can affect the safety of others. Def.'s Ex.
1D, Dkt. 33 at 49-50.
January 2016, Robson had a CT scan that showed interval
resolution of the previously seen contusions and hemorrhages
of his brain - in other words, his CT scan was normal.
Def.'s Ex. 1N, Dkt. 33 at 116; Charbonneau
Depo. at 30, Dkt. 39-4; Wilson Depo. at 29-30,
Dkt. 39-5. That same month, Robson's treating physician,
Dr. Morgan, provided him a written release to “return
to work full duty w/ no restrictions.” Def.'s
Ex. 1N, Dkt. 33 at 109. Based on this release, Robson
asked Union Pacific to reconsider his fitness-for-duty
determination and provided additional medical records.
Id. at 105.
follow-up review, Dr. Wilson and Dr. Holland concluded that
Robson should be restricted for five years rather than
permanently. Def.'s Ex. 1O, Dkt. 33 at 121;
Wilson Depo. at 61-62, Dkt. 39-5; Holland
Depo. at 36-37, Dkt. 39-2. Although the restrictions
prevented Robson from performing some of the essential
functions of the machinist job Union Pacific allowed him to
return to work as a machinist. Def.'s Ex. 1A at
58, Dkt. 33.
claims that, because his brain injury has resolved, and he
was cleared to return to work without restrictions by his
treating physician, he is able to perform all of the
essential functions of a machinist. Compl. ¶
16. Since returning to work, Robson alleges that he has not
been sent on certain jobs and has lost overtime opportunities
due to the restrictions. Compl. ¶ 12. Robson
alleges that, by unnecessarily restricting him from certain
jobs, Union Pacific has discriminated against him in
violation of the ADA.
Plaintiff's Objection to Exhibit 1Q
Rule 56(c) governs the procedures that the parties must
comply with to support or dispute a motion for summary
judgment. See Fed.R.Civ.P. 56(c). Under Rule 56(c)(2), a
party “may object that the material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence.” Id. An affidavit is
an acceptable form in which to present evidence in the
summary judgment context. However, “[a]n affidavit or
declaration used to support or oppose a motion must be made
on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”
makes clear then that only admissible evidence may be
considered in ruling on a motion for summary judgment.
Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.
2002); see also Fed. R. Civ. P. 56(c). However, in
determining admissibility for summary judgment purposes, it
is the contents of the evidence rather than its form that
must be considered. Fraser v. Goodale, 342 F.3d
1032, 1036-37 (9th Cir. 2003). If the contents of the
evidence could be presented in an admissible form at trial,
those contents may be considered on summary judgment.
Summary Judgment Standard
judgment is appropriate where a party can show that, as to
any claim or defense, “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be
a genuine dispute as to any material fact - a fact
“that may affect the outcome of the case.”
Id. at 248.
evidence must be viewed in the light most favorable to the
non-moving party, and the Court must not make credibility
findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie
v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On
the other hand, the Court is not required to adopt