Today’s case is an unpublished decision out of the Northern District of Texas that has potential to be a real sleeper. That is, one of the things that the medical licensing boards and the PHP’s are doing are claiming that ensuring physicians with disabilities are not allowed to practice or can only practice with restrictions is a matter of public safety. Of course, it doesn’t work that way. The question is whether the physician is a direct threat to others with respect to matters involving the medical licensing board or the PHP. If a physician’s employer is an entity of 15 or more, then the issue is whether the physician is a direct threat to self or others. So, the case of the day is important because it talks about the burden of proof when it comes to direct threat cases where the employee is engaged in a job that very much affects the safety of others. The case is Goode v. BNSF Railway, Inc., here207189, an unpublished decision decided by the Northern District of Texas on March 20, 2020. As usual, the blog is divided into categories and they are: facts; court’s reasoning whether plaintiff was a qualified person with a disability; court’s reasoning burden of proof in direct threat cases; court’s reasoning direct threat existed as a matter of law; and thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Facts

 

In 1998, plaintiff Cody Goode was diagnosed with dilated cardiomyopathy. As a result, in 2003, he had a single device containing both a pacemaker and an implantable cardioverterdefibrillator (“ICD”) inserted into his chest. The ICD is a device placed in the chest to reduce the risk of dying if the lower chamber of the heart goes into a dangerous rhythm and stops beating effectively. Essentially, the ICD shocks the heart back into a normal heart rhythm if it goes into cardiac arrest.

 

In 2006, Goode applied for a conductor position with BNSF. This position is one of several jobs within the “train-service category,” which includes the positions of conductor, switchman, and brakeman. The position involves working on a train in over-the-road trips as well as working in a rail yard. Additionally, under BNSF’s labor agreements, train-service employees are also required to become locomotive engineers, who “are responsible for the operation of trains, including those that carry hazardous materials.” After being interviewed, Goode was offered a train-service position conditioned upon his successful completion of a post-offer medical evaluation.

 

CHS was permitted to medically qualify an applicant if he disclosed that he had cardiomyopathy and a pacemaker alone. But for other conditions, CHS was supposed to forward the applicant’s information to MEH.

 

On his questionnaire, Goode indicated that he had a pacemaker installed in 2003, but he did not disclose on the questionnaire that his device also included an ICD. CHS’s clinical notes indicate that Goode told the nurse he had a pacemaker, but they do not reflect that Goode mentioned his device also included an ICD. Indeed, Goode cannot recall whether he specifically told the person conducting his medical evaluation that he had an ICD. But Goode was asked to, and he did provide additional medical records from his cardiologist to CHS. Those records included a “certificate to return to work” signed by his cardiologist indicating that Goode was “ok from a cardiac standpoint to work w/ a pacemaker in a safety-sensitive situation.” Additionally, the records reflect that Goode’s device included an ICD. Nevertheless, CHS cleared Goode for hire in the conductor position. Goode worked in the train-service category as a conductor, brakeman, and switchman without incident from 2006 to 2009, when he was furloughed. On April 7, 2010, BNSF sent him a letter recalling him to active service. In connection with this recall, Goode informed MEH that he had an ICD. Dr. Sharon Clark, a Field Medical Officer in MEH, reviewed Goode’s medical records to determine whether he could perform the essential functions of his train-service position with the ICD. Dr. Clark concluded that he could not safely do so. As a result, BNSF arranged for Goode to take the Dispatcher Aptitude Test, which he passed, and attend Dispatcher training in January 2011. Goode has been working as a dispatcher for BNSF since then.

 

II

Court’s Reasoning Whether Plaintiff was a Qualified Person with a Disability

 

  1. To be qualified, an employee must be able to perform with or without reasonable accommodations the essential functions of his position in spite of his disability (“in spite of his disability,” are the words actually used by the court).
  2. The employer pointed out that train service employees frequently work around or on heavy moving equipment or between a set of railroad tracks based as narrowly as 36 inches apart.
  3. A routine part of a conductor’s job is riding on the side of a moving railcar while holding a ladder.
  4. A conductor wears a remote control belt that actually moves trains in the railyard without the help of an engineer.
  5. Train service employees are also required to be able to perform the role of locomotive engineers who are responsible for the operation of trains, including those carrying hazardous materials.
  6. No other individuals with an ICD have knowingly been permitted by the employer’s medical people to work as a train service employee.
  7. Plaintiff admitted in his deposition that if his ICD shocked him while performing as a conductor, he would present a safety risk at least to himself.

 

III

Court’s Reasoning Direct Threat Burden of Proof

 

  1. Direct threat appears in a section labeled defenses, 42 U.S.C. §12113(a).168119119190
  2. The Fifth Circuit has declined to specifically decide which party has the burden of proof when it comes to direct threat.
  3. The 10th Circuit has concluded that although the existence of a direct threat is generally a defense to be proved by the employer, an exception exists where the essential job duties necessarily implicate the safety of others. In that situation, the burden may be on the plaintiff to show that he or she can perform those functions without endangering others.
  4. The 10th Circuit relied upon a Fifth Circuit case from 2000 saying that the burden may be on the plaintiff to show that he or she can perform those functions without endangering others where the job duties necessarily implicate the safety of others.
  5. Since many of the essential functions of a train service employee implicate the safety of both the employee and others, the plaintiff must prove that he is not a direct threat as part of his prima facie case.

IV

Court’s Reasoning That Direct Threat Exist As a Matter of Law

 

  1. Whether an employer has properly determined that a person poses a direct threat depends upon the objective reasonableness of the employer’s actions.
  2. Citing to Chevron v. Echazabal, which we discussed here169120120191, the direct threat defense must be based upon a reasonable medical judgment relying on the most current medical knowledge and/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.
  3. In determining direct threat, the court looks at: the nature of the risk, duration of the risk, the severity of the risk, and the probability that the potential harm will occur. If the threatened harm is grievous, even a small risk may be significant.
  4. The issue isn’t whether the employer is correct about the risk the employee poses, but instead whether the employer’s decision was objectively reasonable based upon the information it had before it.
  5. The law only requires that an employer rely on the objectively reasonable opinion rather than an opinion that is actually correct.
  6. If plaintiff were acting as an engineer and transporting hazardous materials at the time his ICD fired, the risk to himself, his fellow employees, and the general public could be great. So while the probability and duration of the risk caused by his ICD firing might be low, the nature and severity of the risk when he collapses as a result of the firing of the ICD is potentially catastrophic.
  7. Plaintiff presented no contrary evidence demonstrating that the conclusion of the doctors was incorrect, much less objectively unreasonable.

 

V

Takeaways

 

  1. I am a bit surprised that this case was not appealed. Looking at the docket for the case, the deadline for appealing has passed. I did see that plaintiff was taxed costs of $2235 and some change.
  2. I don’t argue the points made by the court with respect to direct threat existing as a matter of law, which may be the reason why the case was not appealed.
  3. I do think that it is not a foregone conclusion that the burden of proof in direct threat cases falls upon the plaintiff in some situations, such as public safety. After all if that is true, then why does direct threat appear in the ADA under defenses?
  4. Whether a person is a qualified individual with a disability depends upon whether they can perform the essential functions of the job with or without reasonable accommodations assuming they meet the necessary experience, training, etc. for the position in the first place. The term “in spite of his disability,” is jarring to say the least. The issue is whether the person meets the requirement for the position and whether they can perform the essential functions of the job with or without reasonable accommodations. The issue is also whether they have a disability in the first place. Whether any of this takes place in spite of their disability is simply not the issue and is not correct.
  5. The reason this case is a big sleeper if it stands as it goes through the courts is because in the world of medical licensing boards and physician health programs, which we discussed here170121121192, one of the common things that is argued by medical licensing boards and physician health programs is that what a physician does necessarily implicates the safety of others. So, this would mean whenever a healthcare professional is being subject to medical licensure board proceedings or to physician health program proceedings, the question of direct threat would be placed squarely on the physician under this decision and not upon the medical licensing board, the physician health program, or even the physician’s employer.
  6. Regardless of the burden of proof of direct threat, direct threat is still the consideration and not some amorphous, “public safety” concept.
  7. Interesting note, the 10th Circuit case relied upon by the court, Jarvis v. Potter171122122193, had Justice Gorsuch on its panel, though he did not write the decision, and the decision was unanimous.

 

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