Opinion
CV-21-00065-TUC-JGZ (MSA)
07-20-2021
Mark Brasier, Plaintiff, v. Union Pacific Railroad Company, Defendant.
REPORT AND RECOMMENDATION
Memorable Maria S. Aguilera, United States Magistrate Judge
Pending before the Court is Defendant Union Pacific Railroad Company's (Union Pacific) motion to dismiss. (Doc. 15.) The motion has been fully briefed, and oral argument was held on July 14, 2021. (Docs. 16, 18, 19, 24.) For the following reasons, the Court will recommend that the motion be granted.
Background
This lawsuit is a follow-on to a failed class action titled Harris v. Union Pacific Railroad Company. In the Harris complaint, filed in February 2016, the plaintiffs raised the following allegations concerning Union Pacific's fitness-for-duty program: Employees who experienced a “reportable health event” were required to disclose the event to their supervisors and to the Health and Medical Services Department, and they were required to stay off work until a fitness-for-duty evaluation was completed. (Doc. 16-1 at 4-6, ¶¶ 2- 4.) Fitness-for-duty evaluations were based on standardized protocols rather than on 1 individualized assessments, and they did not include physical examinations or account for the opinions of employees' treating physicians. (Id. at 7, ¶¶ 7-8, 14-15.) Union Pacific routinely issued fitness-for-duty determinations that disqualified employees from their jobs based on disability, even where an employee's medical condition did not affect his or her work. (Id. at 7, ¶ 11.) Union Pacific would either find, incorrectly, that an employee was unfit for duty, or it would find that an employee was fit for duty with medically unnecessary work restrictions that would not be accommodated. (Id. at 7, ¶¶ 12-13.)
The filings in other courts are “properly subject to judicial notice and thus may be considered on a Rule 12(b)(6) motion to dismiss.” ASARCO, LLC v. Union Pac. R.R., 765 F.3d 999, 1008 n.2 (9th Cir. 2014).
The plaintiffs proposed a class of employees who had suffered adverse employment action relating to the fitness-for-duty program. (Id. at 17, ¶ 116.) They pleaded several claims under the Americans with Disabilities Act (ADA). On behalf of the putative class, they asserted claims for disparate treatment, disparate impact, and unlawful medical inquiries. (Id. at 21-24, ¶¶ 136-58.) On behalf of themselves only, they asserted claims for failure to accommodate. (Id. at 24-25, ¶¶ 159-63.) The district court certified the class, but the certification order was reversed on appeal on March 24, 2020. Harris v. Union Pac. R.R., 329 F.R.D. 616 (D. Neb. 2019), rev'd, 953 F.3d 1030 (8th Cir. 2020).
Plaintiff Mark Braiser, a former employee of Union Pacific, alleges that he was a member of the putative class in Harris. (Doc. 13, ¶¶ 3, 19-20, 33.) He raises the same allegations concerning Union Pacific's fitness-for-duty program. (Id. ¶¶ 9-18.) He further alleges that he was disqualified from his job after undergoing a fitness-for-duty evaluation. (Id. ¶¶ 19-30.) Specifically, in September 2016, he received notice that he was permanently restricted from performing tasks essential to his job and that the restrictions would not be accommodated. (Id. ¶¶ 25-26.)
Braiser raises three claims under the ADA. These include a claim for disparate treatment in count one, a claim for unlawful screening in count two, and a claim for failure to accommodate in count three. He alleges that, with the benefit of class-action tolling stemming from the Harris suit, he timely filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Civil Rights Division of the Arizona Attorney General's office, and that he timely filed this lawsuit after they issued 2 their respective determinations. (Id. ¶¶ 3, 31-35.)
Legal Standard
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). This standard “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim meets this standard if it has “facial plausibility, ” meaning there is “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
A defendant may challenge the sufficiency of a complaint by filing a motion to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when ‘the running of the statute is apparent on the face of the complaint.'” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). In determining whether the plaintiff has stated a plausible claim, the court “must take all the factual allegations in the complaint as true, ” although it need not “accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Discussion
A plaintiff must timely file a charge of discrimination with the EEOC before he may file a lawsuit under the ADA. Walsh v. Ariz. Logistics, Inc., 998 F.3d 393, 397 (9th Cir. 2021). The charge ordinarily must be filed within either 180 or 300 days of the date of the alleged discrimination, Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002), but the filing period may be tolled in certain circumstances, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). In this case, Braiser filed his charge more than four years after the date of the alleged discrimination. He argues, and Union Pacific mostly agrees, 3 that his charge was timely with the benefit of class-action tolling arising from Harris. The challenge raised in Union Pacific's motion is limited: Union Pacific contends that Braiser's failure-to-accommodate claim was outside the scope of class litigation in Harris, such that Braiser may not invoke tolling to save that claim. The Court agrees.
Generally, the filing of a class action tolls the statute of limitations as to all putative class members until class certification is denied, at which point “class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54 (1983) (quoting Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974)). Such tolling applies only if the class complaint notifies the defendant of “both the subject matter and size of the prospective litigation, ” Am. Pipe, 414 U.S. at 555, so that “[t]he defendant will be aware of the need to preserve evidence and witnesses respecting the claims of all the members of the class, ” Crown, 462 U.S. at 353. When these notice requirements are satisfied, “[t]olling the statute of limitations . . . creates no potential for unfair surprise.” Id.
American Pipe and Crown concerned the tolling of the statute of limitations, not the administrative charge-filing period. As the parties implicitly agree that class-action tolling can also apply to the latter, the Court proceeds on that understanding. See Griffin v. Singletary, 17 F.3d 356, 360-61 (11th Cir. 1994) (applying class-action tolling to the administrative charge-filing period).
There are two competing approaches to determining when class-action tolling applies. The first approach requires that there be an identity of claims between the class action and the follow-on individual suit. This is a straightforward analysis: If the legal theory pleaded in the follow-on suit does not match one of the legal theories pleaded in the class action, then tolling does not apply. See Zarecor v. Morgan Keegan & Co., 801 F.3d 882, 888 (8th Cir. 2015). Under this approach, tolling would not apply in this case because no failure-to-accommodate claim was pleaded on behalf of the putative class in Harris. See Krehbiel v. Union Pac. R.R., No. 19-CV-02002, 2019 WL 3387049, at *4 (D. Kan. July 26, 2019) (holding that a Harris class member's failure-to-accommodate claim was barred under the identity-of-claims approach); DeFries v. Union Pac. R.R., No. 21-cv-00205, 2021 WL 3009109, at *5 (D. Or. June 4, 2021) (same), adopted by 2021 WL 3007254 (July 4 15, 2021). The Court disagrees with this approach because, as described below, it is inconsistent with this circuit's caselaw. See Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394, 402 (9th Cir. 1980) (observing that “American Pipe . . . did not rest upon the identity of the causes of action”).
Under the second approach, tolling applies to claims raised in a follow-on suit so long as they “share a common factual basis and legal nexus [with the claims raised in the class action, ] so that the defendant would rely on the same evidence and witnesses in his defense.” In re Enron Corp. Sec., 465 F.Supp.2d 687, 718 (S.D. Tex. 2006). The Court will apply this approach because it is consistent with circuit caselaw. In Tosti v. City of Los Angeles, 754 F.2d 1485, 1489 (9th Cir. 1985), for instance, the court applied tolling because the plaintiff's follow-on individual suit “involved the same allegations that were made in the class suit of a . . . policy to discriminate against women” so that the defendant “had ample notice of the nature of [the plaintiff's] discrimination claims” and was “alerted to make appropriate investigations.” And in Williams v. Boeing Co., 517 F.3d 1120, 1131- 32, 1136 (9th Cir. 2008), the court refused to apply tolling to a compensation discrimination claim because the plaintiffs' “general allegations that they were discriminated against with regard to ‘terms of employment' did not provide ‘fair notice'” of that claim.
See also Crown, 462 U.S. at 355 (Powell, J., concurring) (stating that class-action tolling applies to “[c]laims as to which the defendant was . . . fairly placed on notice, ” i.e., claims that “concern the same evidence, memories, and witnesses as the subject matter of the original class suit” (quoting Am. Pipe, 414 U.S. at 562 (Blackmun, J., concurring))).
Two district courts recently held that the Harris class complaint did not provide Union Pacific with fair notice of class members' failure-to-accommodate claims. Donahue v. Union Pac. R.R., No. 21-cv-00448, 2021 WL 2458351, at *2 (N.D. Cal. June 16, 2021); Carrillo v. Union Pac. R.R., No. EP-21-CV-00026, 2021 WL 3023407, at *6-7 (W.D. Tex. July 16, 2021). Both courts reasoned that because the elements of a claim for disparate treatment differ from the elements of a claim for failure to accommodate, the facts relevant to each theory will necessarily differ as well. Donahue, 2021 WL 2458351, at *2; Carrillo, 2021 WL 3023407, at *6-7. In the case of the Harris class complaint, they explained, the class claim for disparate treatment was based on allegations that Union Pacific subjected 5 employees to flawed fitness-for-duty evaluations, while the named plaintiffs' failure-to-accommodate claims were based on allegations about events that occurred after their evaluations and removal from service. Donahue, 2021 WL 2458351, at *2; Carrillo, 2021 WL 3023407, at *7. Based on the differing factual bases, the courts concluded that Union Pacific did not receive fair notice of class members' failure-to-accommodate claims. Donahue, 2021 WL 2458351, at *2; Carrillo, 2021 WL 3023407, at *7.
The Court finds Donahue and Carrillo persuasive. The disparate-treatment and disparate-impact claims were based on facts that differed from those relevant to the named plaintiffs' failure-to-accommodate claims. The latter claims “require[d] a fact-specific, individualized analysis of the disabled individual's circumstances and the accommodations that might allow him to meet the [job's] standards.” McGary v. City of Portland, 386 F.3d 1259, 1270 (9th Cir. 2004) (quoting Wong v. Regents of Univ. of Cal., 192 F.3d 807, 818 (9th Cir. 1999)). The plaintiffs in Harris undoubtedly understood this because they supported their individual failure-to-accommodate claims with allegations about each plaintiff's particular circumstances. These additional, plaintiff-specific allegations differed in substance from the allegations supporting the class claims. See Donahue, 2021 WL 2458351, at *2; Carrillo, 2021 WL 3023407, at *7.
Fair notice requires that the defendant receive “the essential information necessary to determine both the subject matter and size of the prospective litigation.” Am. Pipe, 414 U.S. at 555 (emphasis added). Only with this information will the defendant “be aware of the need to preserve evidence and witnesses respecting the claims of all the members of the class.” Crown, 462 U.S. at 353. Here, while the class complaint raised failure to accommodate as an issue, it clearly limited that issue to the six named plaintiffs. Union Pacific thus did not receive fair notice that issues concerning accommodations were within the “subject matter” of the class litigation, and it would not have known to preserve evidence concerning the denial of accommodations to an unknown number of the approximately 7, 000-member class. Under these circumstances, tolling should not apply.
Braiser highlights that the class complaint included allegations that Union Pacific 6 disqualified employees either by finding them unfit for duty or by imposing work restrictions that were not accommodated. (Doc. 16-1 at 2, ¶ 1; id. at 7, ¶¶ 12-13.) These general allegations do not establish that Union Pacific had fair notice of individual class members' failure-to-accommodate claims, particularly when contrasted with the named plaintiffs' specific allegations about being denied accommodations. Braiser next points to documents outside of the class complaint. The Court questions whether it is appropriate to consider these documents, since it is the complaint that defines the scope of the lawsuit. See Am. Pipe, 414 U.S. at 555 n.25 (“[I]n certain situations the intervenors may raise issues not presented in the class action complaint and to that extent the defendants will not have received notice of the nature of the claims against them.” (citation omitted)); Crown, 462 U.S. at 353 (noting that “a class complaint” provides the defendant with the required notice); but see McCarthy v. Kleindienst, 562 F.2d 1269, 1274-75 (D.C. Cir. 1977) (stating that “it may be necessary to go beyond the facts of the complaint to analysis of the specific evidence involved in the intervenor's action and to consideration of possible prejudice to the defendant”). In any event, the documents cited by Braiser do not establish that Union Pacific received fair notice of his failure-to-accommodate claim.
Braiser first cites Union Pacific's brief in opposition to the plaintiffs' motion for class certification. There, Union Pacific argued that class certification should be denied because it would be unworkable for the plaintiffs to prove, as part of their prima facie case for disparate treatment, that each member of the class was “qualified, ” meaning that each class member could perform the essential functions of his or her job “with or without reasonable accommodation.” (Doc. 18-3 at 59-65); 42 U.S.C. § 12111(8). The issue whether a plaintiff can perform her job with an accommodation, however, is substantively different from the issue whether a defendant unlawfully refused to provide that accommodation.
Braiser next cites Union Pacific's answer, in which Union Pacific raised the affirmative “business necessity” defense. Although the statute creating this defense refers to “reasonable accommodation, ” see 42 U.S.C. § 12113(a), the defense “may be asserted 7 to defend against disparate treatment, disparate impact, and failure to accommodate claims under the ADA.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 995 n.10 (9th Cir. 2007) (en banc) (citing Morton v. United Parcel Serv., Inc., 272 F.3d 1249, 1260-61 (9th Cir. 2001), overruled by Bates, 511 F.3d 974). In Harris, Union Pacific specified that it was raising the defense in relation to claims based on qualification standards and inquiries for medical information. (Doc. 18-4 at 33-34.)
Finally, Braiser points out (for the first time during oral argument) that he submitted a declaration in support of the motion for class certification. Harris, 329 F.R.D. at 624 n.3 (referring to a “Braiser Decl.” in finding that the named plaintiffs were adequate representatives). In the declaration, Braiser asserted that work restrictions were imposed after his fitness-for-duty evaluation, and that the restrictions were not accommodated. (Doc. 248-33 at 14-15, Harris v. Union Pac. R.R., No. 16-cv-00381 (D. Neb.).) Viewed in proper context, however, this declaration does not show that Union Pacific had fair notice. The named plaintiffs drew a clear line between the class claims for disparate treatment and disparate impact and their individual claims for failure to accommodate. See Donahue, 2021 WL 2458351, at *2 (explaining that the class claims were based on different facts than the individual failure-to-accommodate claims). The declaration was submitted in support of a request to certify only on the disparate-treatment claim, so it would not have alerted Union Pacific to preserve evidence respecting class members' individual claims for failure to accommodate.
Conclusion
Because Union Pacific did not receive fair notice of Braiser's failure-to-accommodate claim, Braiser may not invoke class-action tolling in support of that claim. See In re Hanford Nuclear Rsrv. Litig., 534 F.3d 986, 1007 (9th Cir. 2008) (stating that the issue whether a claim “was tolled pending class certification is a purely legal question”). As the alleged discrimination occurred in September 2016, Braiser was required to file his charge no later than July 2017. He filed his charge in April 2020, so it is apparent from the face of the complaint that his claim is barred. See Von Saher, 592 F.3d at 969. 8
IT IS RECOMMENDED that Defendant Union Pacific Railroad Company's motion to dismiss (Doc. 15) be granted, and that count three of the first amended complaint be dismissed.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties shall have fourteen days from the date of service of this recommendation to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). No replies may be filed absent prior authorization by the district court. Failure to file timely objections may result in the acceptance of this recommendation by the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 9