Hopman v. Union Pacific Railroad

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

PERRY HOPMAN PLAINTIFF

v. Case No. 4:18-cv-00074-KGB

UNION PACIFIC RAILROAD DEFENDANT

ORDER

Before the Court is defendant Union Pacific Railroad’s (“Union Pacific”) renewed motion

for judgment as a matter of law pursuant Federal Rules of Civil Procedure 50, 39, and 52 (Dkt.

No. 193). At trial, Union Pacific timely moved for judgment as a matter of law pursuant to Federal

Rule of Civil Procedure 50 prior to submission of the case to the jury. Fed. R. Civ. P. 50(a)(1)(2).

Plaintiff Perry Hopman responded to the motion for judgment as a matter of law at trial and

responded to Union Pacific’s renewed motion for judgment as a matter of law (Dkt. No. 196). Mr.

Hopman also filed a motion to strike the declaration of Robert Carty and photographs that were

attached as an exhibit to Union Pacific’s renewed motion for judgment as a matter of law (Dkt.

No. 197). Union Pacific replied in support of its renewed motion for judgment as a matter of law

and responded to the motion to strike (Dkt. Nos. 205; 206). Mr. Hopman replied in support of his

motion to strike (Dkt. No. 207). Also before the Court is Mr. Hopman’s motion for equitable relief

(Dkt. No. 200). Union Pacific has responded to Mr. Hopman’s motion for equitable relief (Dkt.

No. 208). Mr. Hopman has replied in support of his motion for equitable relief (Dkt. No. 209).

For the reasons stated below, the Court grants Union Pacific’s renewed motion for

judgment as a matter of law (Dkt. No. 193). The Court grants Mr. Hopman’s motion to strike

(Dkt. No. 197). The Court denies Mr. Hopman’s motion for equitable relief (Dkt. No. 200).

I. Introduction

Mr. Hopman brings this action against Union Pacific under Section 504 of the

Rehabilitation Act of 1973, as amended, (“Rehabilitation Act”), 29 U.S.C. § 794, et seq., and the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (Dkt. No. 4, ¶ 3). Mr.

Hopman alleges that he was discriminated against and denied a reasonable accommodation in

violation of both the Rehabilitation Act and the ADA (Id., ¶¶ 18-26). Mr. Hopman maintains that

he can perform the essential functions of his job (Id, ¶ 9). Mr. Hopman asserts, however, that he

needs the requested accommodation of working alongside his service dog, Atlas, in order to enjoy

equal benefits and privileges of employment of working without the burden and pain of his post-

traumatic stress disorder (“PTSD”) (Id., ¶ 12).

Union Pacific moved for summary judgment (Dkt. No. 54). Union Pacific argued that as

a matter of law Mr. Hopman was unable to demonstrate that he was entitled to a reasonable

accommodation or suffered an adverse employment decision and that Union Pacific should have

judgment granted in its favor accordingly (Dkt. No. 54-1, at 17-24). Mr. Hopman responded

premising his claims on a benefits and privileges of employment reasonable accommodation

analysis and stating that “[a]ll Hopman seeks is the same right other employees already have – to

work without the continual and unrelenting burden and pain of PTSD.” (Dkt. No. 59, at 17-21).

Union Pacific in reply argued that Mr. Hopman failed to identify any “benefit” or “privilege” of

employment that Union Pacific offered that he could not access without an accommodation (Dkt.

No. 61, at 1-9).

The Court denied Union Pacific’s motion for summary judgment (Dkt. No. 72). The Court

determined that Mr. Hopman was able to move forward with his reasonable accommodation claim

even though he was able to perform the essential functions of his job (Id., at 19-23). Viewing the

limited record evidence available to the Court at that stage of the litigation in the light most

favorable to Mr. Hopman, the Court determined on the record before it that “a reasonable juror

could conclude that Mr. Hopman has a disability and requested from Union Pacific a reasonable

accommodation to enjoy equal benefits and privileges of employment as are enjoyed by its other

similarly situated employees without disabilities” (Id., at 25). Union Pacific filed a motion for

reconsideration, or in the alternative, certification under 28 U.S.C. § 1292(b) (Dkt. No. 74). Mr.

Hopman opposed the motion (Dkt. No. 78). The Court denied Union Pacific’s motion for

reconsideration or in the alternative certification under 28 U.S.C. § 1292(b) (Dkt. No. 92).

The case proceeded to a jury trial in July 2021 (Dkt. Nos. 172; 173; 174; 176). Union

Pacific filed a timely motion for judgment as a matter of law (Dkt. No. 177). Mr. Hopman orally

opposed the motion (Dkt. No. 179). The Court denied Union Pacific’ motion for judgment as a

matter of law (Id.). The case was submitted to the jury on a verdict form that posed ten questions

(Dkt. No. 184). The jury returned a verdict in favor of Mr. Hopman (Id.).

II. Judgment As A Matter Of Law

A. Background

In its renewed motion for judgment as a matter of law, Union Pacific makes two arguments

(Dkt. No. 193). First, Union Pacific argues that it is entitled to judgment as a matter of law because

Mr. Hopman failed to identify any cognizable “benefit or privilege of employment” that his

requested accommodation would enable him to access (Id., at 6-27). Second, Union Pacific argues

that, as an independent matter, the Court should reject the jury’s answer to “Question Seven”1

1 “Question Seven” asked the jury: “Do you find from a preponderance of the evidence. .

. [t]hat allowing plaintiff Perry Hopman his requested accommodation would be prohibited by a

federal law or regulation?” (Dkt. No. 184, at 7).

because “allowing Atlas to ride in the tight quarters of a cab is prohibited by federal railroad safety

regulations.” (Id., at 27-42).

Mr. Hopman responds to Union Pacific’s renewed motion for judgment as a matter of law

(Dkt. No. 196). Mr. Hopman argues that Union Pacific gives the Court no basis to ignore the

controlling statute and well-established case law which hold that employers owe a duty of

accommodation for workers with disabilities “when the accommodation will assist them in

mitigating the symptoms of a disability.” (Id., at 4). Mr. Hopman contends that the privileges and

benefits that workers enjoy do not stem from what the employer chooses to grant as employer-

sponsored privileges but from the broad ADA mandate to afford workers with disabilities the same

opportunities as those who do not live with disabilities (Id.). As to Union Pacific’s second

argument, Mr. Hopman contends that Union Pacific did not preserve its challenge to jury

“Question Seven” (Id., at 23).

B. Legal Standard

Judgment as a matter of law should be rendered when “a party has been fully heard on an

issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party

on that issue.” Fed. R. Civ. P. 50(a)(1); Stults v. American Pop Corn Co., 815 F.3d 409, 418 (8th

Cir. 2016). “In deciding a motion for judgment as a matter of law, the court shall:

(1) Resolve direct factual conflicts in favor of the nonmovant, (2) assume as true

all facts supporting the nonmovant which the evidence tended to prove, (3) give the

nonmovant the benefit of all reasonable inferences, and (4) deny the motion if the

evidence so viewed would allow reasonable jurors to differ as to the conclusions

that could be drawn.

Stults, 815 F.3d, at 418 (citing Jones v. Edwards, 770 F.2d 739, 740 (8th Cir. 1985)).

C. Analysis

1. The Statute And Regulations

The ADA prohibits employers from discriminating against disabled employees “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 or

employment.” 42 U.S.C. § 12112(a). Under the ADA employers must, among other things,

accommodate an employee’s known physical or mental limitations. 42 U.S.C. § 12112(b)(5)(A).

The ADA does not define “reasonable accommodation.” The statute does, however, provide two

illustrative examples.

The term “reasonable accommodation” may include—

(A) making existing facilities used by employees readily accessible to and

usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment

to a vacant position, acquisition or modification of equipment or devices,

appropriate adjustment or modifications of examinations, training materials or

policies, the provision of qualified readers or interpreters, and other similar

accommodations for individuals with disabilities.

42 U.S.C.A. § 12111.

Both examples place the burden on the employer to provide an accommodation, and neither

example mentions an accommodation to permit an employee to be free from mental or

psychological pain as a benefit or privilege of employment.

In passing the ADA, the Senate defined the phrase “other terms, conditions, and privileges

of employment” as follows:

(1) recruitment, advertising, and the processing of applications for employment; (2)

hiring, upgrading, promotion, awarding of tenure, demotion, transfer, layoff,

termination, right of return from layoff, and rehiring; (3) rates of pay or any other

form of compensation and changes in compensation; (4) job assignment, job

classification organizational structures, position descriptions, lines of progression,

and seniority lists; (5) leaves of absence, sick leave or any other leave; (6) fringe

benefits available by virtue of employment, whether or not administered [sic] by

the covered entity; (7) selection and financial support for training, including

apprenticeship, professional meetings, conferences, and other related activities, and

selection for leaves of absence to pursue training; and (8) employer-sponsored

activities, including social or recreational programs.

This legislative history does not support Mr. Hopman’s claim that freedom from mental or

psychological pain caused by PTSD is a benefit or privilege of employment that legislators

envisioned employers being required to offer employees.

The legislative history also makes clear that reasonable accommodation does not extend to

adjustments or modifications for the personal benefits of the individual with a disability nor is an

adjustment or modification required to be provided that will assist an individual throughout his or

her daily activities on or off the job. For example, an employer would not have to provide as an

accommodation “any amenity or convenience that is not job-related. . .” 29 C.F.R. § Pt. 1630,

App. § 1630.9 “Section 1630.9 Not Making Reasonable Accommodation” (citing Senate Report

at 31; House Labor Report at 62).

The ADA’s implementing regulations provide the following three definitions of the term

reasonable accommodation:

(i) Modifications or adjustments to a job application process that enable a qualified

applicant with a disability to be considered for the position such qualified applicant

desires; or

(ii) Modifications or adjustments to the work environment, or to the manner or

circumstances under which the position held or desired is customarily performed,

that enable an individual with a disability who is qualified to perform the essential

functions of that position; or

(iii) Modifications or adjustments that enable a covered entity’s employee with a

disability to enjoy equal benefits and privileges of employment as are enjoyed by

its other similarly situated employees without disabilities.

29 C.F.R. § 1630.2(o)(1)(i)-(iii) (emphasis added). Mr. Hopman has consistently argued, and he

testified at trial, that he is able to perform the essential functions of his job. Accordingly, the

parties agree that this action involves only the reasonable accommodation definition relating to

benefits and privileges of employment.

According to the regulations, the obligation to make reasonable accommodation applies to

all services and programs provided in connection with employment and to all non-work facilities

provided or maintained by an employer for use by its employees. Accordingly, the obligation to

accommodate is applicable to employer sponsored placement or counseling services, and to

employer provided cafeterias, lounges, gymnasiums, auditoriums, transportation and the like. 29

C.F.R. § Pt. 1630, App. § 1630.9 “Section 1630.9 Not Making Reasonable Accommodation”

(emphasis added). The Equal Employment Opportunity Commission (“EEOC”) has also issued a

compliance manual which provides examples of what may constitute benefits and privileges of

employment. Each example relates to an employer-sponsored program that the employer offers

to its employees. See EEOC Compliance Manual § 902 Introduction, “Reasonable

Accommodation Related to the Benefits and Privileges of Employment,” 2006 WL 4673363 at

*9-10 (2006).

2. Cases Interpreting The Statute And Regulations

Mr. Hopman contends that the Eighth Circuit has recognized the broad remedial nature of

the accommodation obligation including an opportunity to attain “the same level of performance,

benefits, and privileges that is available to similarly situated employees who are not disabled.”

(Dkt. No. 196, at 9 (citing Keil v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en

banc) (emphasis added)). Mr. Hopman also asserts that courts have found that the term benefits

and privileges is an expansive rather than restrictive term (Id.) (citing Exby-Stoley v. Bd. of Cnty.

Commissioners, 979 F.3d 784, 818 (10th Cir. 2020) cert. denied, No. 20-1357, ___ S.Ct. ___, 2021

WL 2637869 (June 28, 2021), in which the Tenth Circuit Court of Appeals stated that the language

“terms, conditions, and privileges of employment” in 42 U.S.C. § 12112(a) “signals that actionable

discrimination must ‘affect employment or alter the conditions of the workplace,’ . . . that the

discrimination must relate to some aspect of employment, and also that the ADA’s discrimination

proscription reaches ‘the entire spectrum’ of employment-based disability discrimination.’”

(emphasis in original) (citations omitted)).

The ADA is not, however, without limits. See Durand v. Fairview Health Servs., 902 F.3d

836, 842 (8th Cir. 2018) (determining that, in a case brought under ADA Title III, even though the

ADA and Rehabilitation Act are “intentionally broad in scope, . . . they do not require institutions

to provide all requested auxiliary aids and services.” (quoting Argenyi v. Creighton Univ., 703

F.3d 441, 446 (8th Cir. 2013)); Michigan Flyer LLC v. Wayne Cty. Airport Auth., 860 F.3d 425,

430 (6th Cir. 2017) (“The fact that a statute has a broad remedial structure does not allow us to

interpret its text in a way that conflicts with its plain language.”); Noeal v. New York City Taxi &

Limousine Comm’n, 687 F.3d 63, 68-69, 71 (2d Cir. 2012) (“Although the ADA is to be interpreted

broadly, ‘the scope of Title II is not limitless.’”) (quoting Reeves v. Queen City Transp., Inc., 10

F. Supp. 2d 1181, 1185 (D. Col. 1998)). As the Sixth Circuit has stated, “[t]he ADA is not a

weapon that employees can wield to pressure the employers into granting unnecessary

accommodations or reconfiguring their business operations. Instead, it protects disabled

employees from disability-related mistreatment—no more, no less.” Tchankpa v. Ascena Retail

Group, Inc., 951 F.3d 805, 809 (6th Cir. 2020).

Union Pacific argues that “benefits and privileges of employment” do not include working

without mental or psychological pain (Dkt. No. 193, at 9-15). At the summary judgment stage,

Union Pacific argued that Mr. Hopman could prove no set of fact or circumstances to support his

claim that Atlas was needed to permit Mr. Hopman to enjoy “equal benefits and privileges of

employment as are enjoyed by Union Pacific’s other similarly situated employees without

disabilities.” (Dkt. No. 61). The Court found that Union Pacific did not carry its burden on that

point at summary judgment, in part, because there was evidence in the record that Union Pacific

had permitted an emotional support animal to accompany an engineer in California on the train in

the past, but the record on that point was not developed as to how or why. As a result, the Court

found that Union Pacific had not meaningfully distinguished Mr. Hopman’s case from other cases

in which other courts had permitted claims like Mr. Hopman’s to proceed to trial.

At trial, Mr. Hopman pursued the theory that the benefit and privilege of employment that

he is seeking is to work without mental and psychological pain caused by his PTSD and traumatic

brain injury. Unlike in the cases relied on by Mr. Hopman, at trial Mr. Hopman did not identify a

corresponding benefit or privilege of employment offered to Union Pacific employees. There was

no evidence presented at trial that Union Pacific offers service animals to its non-disabled

employees as a benefit and privilege of employment. Mr. Hopman’s case is distinguishable from

the cases in other courts relied upon by Mr. Hopman, and Mr. Hopman has not pointed the Court

to any cases to support a claimed right to work without mental or psychological pain.

For example, in Hill v. Assoc. for Renewal in Educ., Inc., 897 F.3d 232, 239 (D.C. Cir.

2018), the employer provided classroom aides to all of the teachers but the disabled plaintiff. The

D.C. Circuit Court of Appeals stated:

We conclude Hill sufficiently alleged a connection between his disability and the

assistance a classroom aide could provide while Hill supervised his students to

present a triable issue of fact as to whether A[ssociation for] R[enewal in]

E[ducation]’s denial of an aide violated the ADA. The ADA’s purpose in requiring

reasonable accommodations is reducing barriers to employment for persons with

disabilities. Therefore, to be “reasonable” under the ADA, an accommodation must

be related to the disability that creates the employment barrier and must address

that barrier; the ADA does not make employers responsible for alleviating any and

all challenges presented by an employee’s disability. See Nuzum, 432 F.3d at 848

(“[T]here must be a causal connection between the major life activity that is limited

and the accommodation sought.”); Felix v. New York City Transit Auth., 324 F.3d

102, 107 (2d Cir. 2003) (“Adverse effects of disabilities and adverse or side effects

from the medical treatment of disabilities arise ‘because of the disability.’

However, other impairments not caused by the disability need not be

accommodated.”); EEOC’s Interpretive Guidance on Title I of the Americans with

Disabilities Act, 29 C.F.R. Pt. 1630, App. (2016) (“[A]n employer [does not] have

to provide as an accommodation any amenity or convenience that is not job-related”

and “that is not provided to employees without disabilities.”). Hill satisfied these

requirements by alleging that he experienced a hazard of pain and bruising on his

stump while standing for long periods of time, and by specifically connecting that

hazard to supervising his class without assistance. Construing Hill’s pro

se submissions liberally and with all reasonable inferences drawn in his favor, a

reasonable jury could find that if ARE provided Hill a classroom aide as it did for

his colleagues, that aide could help Hill supervise students in the classroom and

during outdoor activities, reducing his need for prolonged standing and mitigating

the alleged “hazard of pain and bruising.”

Hill, 897 F.3d at 238 (D.C. Cir. 2018).

Mr. Hopman’s case is not like Hill. Unlike Mr. Hill, who showed at the summary judgment

stage that teacher aides – the benefit or privilege being requested – were being provided to other

non-disabled teachers, Mr. Hopman did not show at trial that service animals are being provided

to other similarly situated non-disabled Union Pacific employees as a benefit and privilege of

employment. Here, the only evidence presented at trial that other Union Pacific employees worked

with an animal similar to the one that Mr. Hopman is requesting is that Paul Birchfield, a Union

Pacific engineer in California, testified that he brought his emotional support animal (“ESA”) to

work with him on the train for four years (Plaintiff’s Exhibit 42, at 12, 14-16).2 When Union

Pacific received a complaint about Mr. Birchfield’s dog, it investigated the matter, discovered that

2 Union Pacific witness Rodney Doerr disputed this fact and testified that his managers

told him that it had only been two to three weeks that Mr. Birchfield brought his dog (Dkt. No.

189, at 119). The Court gives Mr. Hopman the benefit of this disputed evidence.

a supervisor had never approved the practice, and notified Mr. Birchfield that he must no longer

bring his ESA to work with him (Dkt. No. 189, at 61-62; 115-120).

Even considering Mr. Birchfield’s experience at Union Pacific, however, Mr. Hopman’s

case is not like Hill. At trial, Mr. Hopman presented evidence that Mr. Birchfield brought his ESA

to work with him at Union Pacific without the permission of his supervisors and was asked to stop

bringing the dog as soon as a complaint was lodged with his supervisor and Union Pacific

investigated the matter. In Hill, ARE provided teacher aides, the accommodation Mr. Hill was

requesting, to all other non-disabled teachers at ARE as a benefit of employment but did not

provide a teacher aide to the disabled teacher, Mr. Hill. Additionally, unlike the other non-disabled

teachers in Hill, Mr. Birchfield appears to have been disabled with anxiety and panic attacks. The

facts of Hill are not similar to the facts established at the trial of Mr. Hopman’s case.

Further, Mr. Hopman’s case is distinguishable from Gleed v. AT&T Mobility Servs., LLC,

613 Fed. App’x 535, at 539 (6th Cir. 2015). In Gleed, the Sixth Circuit Court of Appeals

considered and rejected AT&T’s argument on summary judgment that, if plaintiff “was physically

capable of doing his job – no matter the pain or risk to his health – then it had no obligation to

provide him with any accommodation, reasonable or not.” Mr. Gleed requested a chair at work

and AT&T admitted that it allowed a pregnant coworker to have a chair at work, which suggested

that it could have provided one to Mr. Gleed. The Sixth Circuit Court of Appeals stated, “the

ADA’s implementing regulations require employers to provide reasonable accommodations not

only to enable an employee to perform his job, but also to allow the employee to ‘enjoy equal

benefits and privileges of employment as are enjoyed by . . . similarly situated employees without

disabilities.’ 29 C.F.R. § 1630.2(o)(1)(iii). Here, taking the evidence in the light most favorable

to Gleed, he needed a chair to work—as other employees do—without great pain and a heightened

risk of infection.” Id. at 539. In Gleed, the employer permitted non-disabled workers to work with

a chair, the benefit or privilege of employment that the disabled employee was requesting. Unlike

in Gleed, Mr. Hopman has not demonstrated that Union Pacific provided service animals as a

benefit and privilege of employment for any other similarly situated non-disabled employee.

Similarly, in Sanchez v. Vilsack, 695 F.3d 1174, 1176 (10th Cir. 2012), an employee sought

an accommodation of a hardship transfer to access medical treatment after a brain injury. The

employer regularly offered hardship transfers to other non-disabled employees but denied a

hardship transfer to the disabled plaintiff. Id., at 1182. Unlike in Sanchez, Mr. Hopman has not

demonstrated that Union Pacific provided service animals as a benefit and privilege of employment

for any other similarly situated non-disabled employee.

In Branson v. West, Case No. 97 C 3538, 1999 WL 311717 (N.D. Ill. May 11, 1999), the

United States District Court for the Northern District of Illinois granted partial summary judgment

to a doctor who had been denied the right to bring her service dog to work. Id. at *15. Dr. Branson

maintained that the service dog could benefit her by “pulling her wheelchair, opening and closing

doors and holding doors open, picking up dropped items, retrieving items, and bracing for her

when she must lean out of her wheelchair.” Id. at *11. The court determined that the employer

had construed its obligations under the law too narrowly when it stressed that Dr. Branson could

“perform all the functions of her job without the accommodation of her service dog.” Id. at *12.

The court determined that no reasonable jury could conclude that the employer made reasonable

efforts to determine an appropriate accommodation, so it denied the employer’s motion for

summary judgment. Id. at *15. In Branson, the court did not analyze the requested

accommodation as a benefit and privilege of employment under the regulation. The court’s

analysis largely centered around the essential functions of the job, the assistance the requested

accommodation would give Dr. Branson with accessing her employer’s facilities, and the

interactive process between Dr. Branson and her employer in determining whether a reasonable

accommodation existed. The circumstances in Branson are not similar to those here where Mr.

Hopman steadfastly maintains his ability to perform the essential functions of the job and is

specifically seeking solely an accommodation of a benefit and privilege of employment.

After the parties filed their briefs, the Court received correspondence from counsel for Mr.

Hopman pointing the Court to the recent decision of Schroeder v. AT&T Mobility Services, LLC,

___ F. Supp. 3d ___, 2021 WL 4942870 (M.D. Tenn 2021). Mr. Schroeder, a veteran suffering

from PTSD, claimed that AT&T failed to accommodate his mental health condition by refusing to

alter his job requirements and company vehicle to permit his service dog to work alongside him.

Id. at *1. The United States District Court for the Middle District of Tennessee denied AT&T’s

motion for summary judgment. Id. at *2-*4. Among other things, the court rejected AT&T’s

argument that the accommodation Mr. Schroeder requested was automatically unreasonable

because Mr. Schroder could perform his job duties without his service animal and noted that

accommodation may be required to allow an employee to enjoy equal benefits and privileges of

employment as are enjoyed by similarly situated employees without disabilities. Id. at *3. The

court also found that several questions of fact remained relevant to whether Mr. Schroeder’s

requested accommodations were reasonable. Id. Like this Court, Schroeder affirms that a remedy

is available for a plaintiff who can establish the need for a reasonable accommodation to enjoy

equal benefits and privileges of employment as are enjoyed by similarly situated employees

without disabilities, but it goes no further because fact issues remained at the summary judgment

stage. Id.; see also Adams v. Crestwood Medical Center, 504 F. Supp. 3d 1263, 1302 (N.D. Ala.

2020) (citing 29 C.F.R. § 1630.2(o)(1)(iii) and determining that fact issue remained on defendant

employer’s motion for summary judgment as to whether serving meal trays constituted an essential

function of employee’s job and whether eliminating meal tray duty was a reasonable

accommodation that would have enabled employee to enjoy equal benefits and privileges of

employment).

Mr. Hopman points to several cases where courts analyze whether the requested

accommodation is reasonable to assist the employee in performing the essential functions of the

job. For example, in Alonzo-Miranda v. Schlumberger Tech. Corp., 2015 WL 13768973, *2 (W.D.

Tex. 2015), the issue was whether a service dog was a reasonable accommodation for a disabled

employee with PTSD so that he could perform the essential functions of his mechanic job (Dkt.

No. 196, at 19). The United States District Court for the Western District of Texas considered

Schlumberger’s renewed motion for judgment as a matter of law, or alternatively, motion for a

new trial. The court found that the jury’s verdict in favor of Mr. Alonzo-Miranda was supported

by evidence “showing the accommodation would help Alonzo-Miranda avoid and mitigate

flashbacks and panic attacks that sometimes prevented him from performing any of the essential

functions of his job.” Id. (emphasis in original). The court went on to point out that the employer

“misstated Fifth Circuit precedent” when it claimed, “that the ADA requires accommodations only

when they are necessary to perform essential functions of the job.” It pointed out that in Feist v.

La., Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 453 (5th Cir. 2013), the Fifth Circuit

Court of Appeals held that “an accommodation may enable the employee to ‘enjoy equal benefits

and privileges of employment’ even if it has no effect on the employee’s ability to do the job.”3

3 In Feist, the Fifth Circuit Court of Appeals remanded the case which involved an on-site

parking space, which would have given the employee access to the employer’s facilities because

the district court overlooked the “benefits and privileges” definition in the regulation. 730 F.3d at

454 (citing the EEOC’s interpretive guidance). The employer was granted summary judgment

after remand because the employee caused a breakdown in the interactive process. Feist v.

Finally, the district court remarked, in what appears to be dictum, that “[s]ubstantial evidence at

trial established that a service dog mitigated the effects of Alonzo-Miranda's PTSD by reducing

the pain and hardship of his disability while at work.” Alonzo-Miranda is distinguishable from the

instant case. There is no indication that Alonzo-Miranda went to the jury solely on the theory that

Schlumberger denied Mr. Alonzo-Miranda a benefit and privilege of employment. Alonzo-

Miranda is an essential function case, not solely a benefit and privilege of employment case.

Moreover, dictum from an unreported district court decision from another Circuit is not binding

on this Court.

In Nawrot v. CPC Int’l, 259 F. Supp. 2d 716, 726 (N.D. Ill. 2003), a diabetic employee,

who sometimes became unable to think clearly and care for himself at work, asked his employer

for an accommodation of periodic breaks to check his blood-sugar levels, eat certain foods, and

administer insulin injections. Id., at 719-720. Unlike Mr. Hopman, Mr. Nawrot claimed that he

needed the accommodation to perform the essential functions of his job. Id. at 725. The employer

moved for summary judgment, but the United States District Court for the Northern District of

Illinois denied the motion concluding that there were disputed facts about whether the

accommodation would enable Mr. Nawrot to perform the essential functions of his job, and, in the

alternative, the court noted that there was a question whether Mr. Nawrot might be entitled to his

accommodation even if he could perform his job without it. Id. The court quoted the three

categories of accommodations and noted that category three “benefits and privileges” shows that

“accommodations are required [for] reasons other than essential job functions.” Id. at 726. The

court went on to suggest “providing additional unpaid leave for necessary treatment” as an

Louisiana Dep’t of Justice, Off of Atty. Gen., Case Nos. 09-7060, 11-1585, 2014 WL 2979623

(E.D. La. Jul. 1, 2014).

example of an accommodation that enables an employee with disabilities to enjoy equal benefits

and privileges of employment as are enjoyed by employees without disabilities. Id., at 726 (citing

29 C.F.R. § 1630(o) app.).

Nawrot is not like Mr. Hopman’s case. Mr. Nawrot did not claim that he could preform

the essential functions of his job, and Mr. Nawrot did not assert solely that he was entitled to a

reasonable accommodation of a benefit and privilege of employment to be free from mental or

psychological pain. Further, Nawrot does not establish, as Mr. Hopman suggests, that a proposed

accommodation can be reasonable even if it is not an employer sponsored benefit. In fact, in

Nawrot the court suggested unpaid leave, which is part of an employer sponsored leave program,

might be a reasonable accommodation for Mr. Nawrot.

In McDonald v. Department of Environmental Quality, 351 Mont. 243, 246 (2009), the

employee used a service dog at work to support her body, help her navigate the office building,

and calm her down during “dissociative episodes.” Ms. McDonald asked her employer for an

accommodation to install nonskid flooring to keep the service animal from loosing traction on

slick floors. Id. at 247. In McDonald, the court assessed the requested accommodation’s ability

to provide Ms. McDonald access to her employer’s facilities and to allow her to avoid “dissociative

episodes” that “impacted her ability to do her job,” in contrast to Mr. Hopman who by his own

admission can effectively do his job by performing the essential functions and access his

employer’s facilities without his service animal. Id. at 258.

3. Right To Work Free From Mental Or Psychological Pain

At the summary judgment stage, Mr. Hopman asserted that he had a right to work without

the “continual and unrelenting burden and pain of PTSD.” (Dkt. Nos. 59, at 21). In his trial brief,

Mr. Hopman asserted that a jury would consider “whether or not the proposed accommodation

would do what Congress intended, to assist a worker with a disability so that worker can be

mainstreamed and avoid symptoms and pain not suffered by those without disabilities.” (Dkt. No.

145, at 5-6). At trial, Mr. Hopman’s counsel argued that Mr. Hopman should not have to endure

“physical and emotional pain” his episodes bring him at work (Dkt. No. 192, at 93).

Mr. Hopman has not pointed the Court to authority where a court has articulated a right to

work without mental or psychological pain. A number of cases from the Eighth Circuit and others

suggest, however, that employees do not have a right to work free from mental or psychological

pain. See e.g. Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 728 (8th Cir. 1999) (affirming

district court’s grant of judgment as a matter of law for the employer who refused to provide

unmonitored phone near employee’s desk to accommodate his depression stating that “[w]e do not

believe, however, that the obligation to make reasonable accommodation extends to providing an

aggravation-free environment.”); Gonzagowski v. Widnall, 115 F.3d 744, 747-48 (10th Cir. 1997)

(affirming district court’s grant of summary judgment in favor of employer who denied employee

with anxiety alterations to his work environment to reduce stress and criticism triggered by his

supervisor concluding that “[w]hile specific stressors in a work environment may in some cases

be legitimate targets of accommodation, it is unreasonable to require an employer to create a work

environment free of stress and criticism.”); Pesterfield v. Tennessee Valley Auth., 941 F.2d 437

442 (6th Cir. 1991) (affirming district court judgment for employer because employee with

depression and severe anxiety was not capable of performing the essential functions of his job, and

“it would be unreasonable to require that TVA place plaintiff in a virtually stress-free environment

and immunize him from any criticism in order to accommodate his disability.”); Carozza v.

Howard Cty., Md., 45 F.3d 425 (4th Cir. 1995) (affirming district court grant of summary judgment

against employee with bipolar affective disorder because the undisputed facts “ineluctably lead to

the conclusion” that the employee’s proposed accommodations “for job restructuring, alleviation

of stress, and exemption from normal performance reviews” that would require her employer to

change the very essence of her job are unreasonable); Marino v. U.S. Postal Serv., 25 F.3d 1037

(1st Cir. 1994) (citing Pesterfield the First Circuit Court of Appeals upheld district court’s grant

of summary judgment in favor of employer and dismissed as unreasonable a Vietnam veteran’s

accommodation request that he be protected from stress-producing situations at work); Tomlinson

v. Wiggins, Case No. 12-CV-1050, 2013 WL 2151537, at *4 (W.D. Ark. May 16, 2013) (emails

employee sent explaining his depression and complaining about his boss’s harsh management style

were not a reasonable request for an accommodation because “[t]he Eighth Circuit has found that

an employer’s obligation to make a reasonable accommodation does not extend to ‘providing an

aggravation-free environment.’”) (citing Schwarzkopf v. Brunswick Corp., 833 F. Supp. 2d 1106,

1123 (D. Minn. 2011) (quoting Cannice v. Norwest Bank Iowa, N.A., 189 F.3d 723, 728 (8th Cir.

1999)). Further, Mr. Hopman has not established that Union Pacific has offered its similarly

situated non-disabled employees the benefit and privilege of working without mental or

psychological pain.

4. Enhanced Job Performance

Mr. Hopman has asserted throughout the case that he can perform the essential functions

of his job. He testified to the same at trial (Dkt. Nos. 190, at 179-180; 191, at 9, 27, 32). Mr.

Hopman’s character witnesses also expressed confidence in Mr. Hopman’s job performance (Dkt.

No. 190, at 55, 104-106). In spite of his assertions about the adequacy of his job performance, in

his trial brief, Mr. Hopman stated that, if granted his accommodation request, his “performance

will be better when he is able to avoid the symptoms of his disability with an accommodation” and

that “his ‘level of performance’ will be higher, given that he will not be burdened with the

symptoms of PTSD and migraines that otherwise plague him during the days.” (Dkt. No. 91, at 6).

Mr. Hopman continued this argument at trial, where he asserted that his job performance would

be enhanced when he was able to avoid the symptoms of his PTSD and traumatic brain injury

(Dkt. Nos. 184, at 1; 196, at 5). In closing argument, his counsel argued that “there is a no-cost

solution . . . to allow [Mr. Hopman] to work better, safer and without pain and without flashbacks”

(Dkt. No. 192, at 93-94). This argument may be appropriate for an essential functions reasonable

accommodation analysis, but it is not appropriate for a benefits and privileges of employment

reasonable accommodation analysis.

The EEOC Enforcement Guidance discusses “job performance” as part of the “essential

functions” reasonable accommodation analysis when it states, “[a]n accommodation also must be

effective in meeting the needs of the individuals. In the context of job performance, this means

that a reasonable accommodation enables the individual to perform the essential functions of the

position.” EEOC Enforcement Guidance at *3. The EEOC’s Interpretive Guidance similarly

provides that level of performance and benefits and privileges of employment are two separate

areas of employment in which a disabled employee may obtain equal employment opportunity.

The Interpretive Guidance provides:

Equal employment opportunity means an opportunity to attain the same level of

performance, or to enjoy the same level of benefits and privileges of employment

as are available to the average similarly situated employee without a disability.

Thus, for example, an accommodation made to assist an employee with a disability

in the performance of his or her job must be adequate to enable the individual to

perform the essential functions of the relevant position.

“Interpretive Guidance on Title I of the Americans With Disabilities Act,” 29 C.F.R. Pt. 1630,

App. § 1630.9, “Section 1630.9 Not Making Reasonable Accommodation” (emphasis added).

Mr. Hopman points to Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999),

to support his position and particularly to the Eighth Circuit Court of Appeals’s statement that a

reasonable accommodation “should provide the disabled individual an equal employment

opportunity, including an opportunity to attain the same level of performance, benefits, and

privileges that is available to similarly situated employees who are not disabled.” Id. at 1136-37

(citing 29 C.F.R. § 1620.9 (Appendix (1998)) (emphasis added). In Kiel, however, the Eighth

Circuit Court of Appeals affirmed the district court’s grant of summary judgment in favor of Mr.

Kiel’s employer denying his requested accommodation in an essential functions case. Id. at 1139.

Mr. Kiel was deaf and employed by Select as a billing clerk. Mr. Kiel requested as an

accommodation a telecommunications device (“TDD”) that would have enabled him to make

business and personal telephone calls at work and an interpreter for staff meetings and social

gatherings. Id. at 1134. Select denied the request for a TDD and chose to have Mr. Kiel’s

supervisor make minimal client telephone calls required rather than provide the TDD. Id. at 1137.

Select also found that an interpreter was not required for Mr. Kiel to perform the essential functions

of his position, and on one occasion that a training session was relevant to Mr. Kiel’s position,

Select provided him an interpreter. Id. The district court granted summary judgment in favor of

Select on Mr. Kiel’s failure to accommodate claim. Id. The Eighth Circuit Court of Appeals

affirmed concluding that the accommodation Select provided “restructuring the billing clerk

position” allowed Kiel an equal employment opportunity at Select. Id. The Eighth Circuit Court

of Appeals did not analyze benefits or privileges of employment.

To the extent that Mr. Hopman seeks an accommodation to assist him with performing

duties above and beyond the core essential functions of his job, the Eighth Circuit has held, in the

essential functions context, that accommodations are not reasonable unless they help the employee

in “performing the duties of her particular job . . . .” Rask v. Fresenius Med. Care N. Am., 509

F.3d 466, 471 (8th Cir. 2007); see also Hatchett v. Philander Smith Coll., 251 F.3d 670, 675 (8th

Cir. 2001) (“A reasonable accommodation is one which enables a[n] individual with a disability

to perform the essential functions of the position.”) (citing 29 C.F.R. § 1630.2(o)(1)(i)). Similarly,

the Sixth Circuit has stated that “[t]he ADA is not a weapon that employees can wield to pressure

the employers into granting unnecessary accommodations or reconfiguring their business

operations. Instead, it protects disabled employees from disability-related mistreatment—no

more, no less.” Tchankpa v. Ascena Retail Group, Inc., 951 F.3d 805, 809 (6th Cir. 2020).

In Arndt v. Ford Motor Co., 247 F. Supp. 3d 832, 855-56 (E.D. Mich. 2017), the United

States District Court for the Eastern District of Michigan granted summary judgment in favor of

an employer and against an Army Veteran with PTSD who worked as a process coach on the

factory floor. The evidence in the record on summary judgment indicated that Mr. Arndt had

PTSD and wanted to bring his service dog, Cadence, to work with him on the factory floor where

he encountered “stressors related to his PTSD.” Id. at 857. The service dog was trained

specifically for the “betterment of Plaintiff’s life.” Id. at 855. The court determined that, while

the service dog may have been trained to better Mr. Arndt’s life, that was “simply not sufficient to

carry Plaintiff’s burden to establish, by a preponderance of the evidence, that having Cadence by

his side in all aspects of his job as a process coach would have enabled him to perform the essential

functions of that high stress supervisory job” on the factory floor. Id. In the context of an essential

functions case, the United States District Court for the Eastern District of Michigan determined

that Mr. Arndt had not established that his service dog helped him perform the essential functions

of his job.

Similarly, to the extent that Mr. Hopman’s trainer testified that Atlas was trained to assist

Mr. Hopman with getting on a plane, going to an amusement park, going out to dinner, and

attending a cheer competition and to the extent that Mr. Hopman testified that Atlas makes him “a

better Perry 100 percent of the time,” that testimony does not establish a claim to a benefit and

privilege of employment that Mr. Hopman has identified (Dkt. No. 190, at 74-76, 139).

Mr. Hopman also cites to two hypotheticals from the EEOC’s Enforcement Guidance that

both address performance. The first hypothetical involves a cashier who becomes fatigued because

of lupus and requests a stool because sitting greatly reduces fatigue and “enables her to perform

her job.” (Dkt. No. 196, at 14-15). The guidance provides that the “accommodation is reasonable

because it is a commonsense solution to remove a workplace barrier—being required to stand—

when the job can be effectively performed sitting down. This ‘reasonable’ accommodation is

effective because it addresses the employee’s fatigue and enables her to perform her job.” (Id., at

15).

The second hypothetical from the EEOC’s Enforcement Guidance Mr. Hopman points to

involves a crew member for a cleaning company with a psychiatric disability who requests changes

to permit him to have fewer alterations in his daily routine by either staying on one floor

permanently, staying on one floor for two months and then rotating, or allowing a transition period

to adjust to change in floor assignments (Id., at 15). The guidance provides that “these

accommodations are reasonable because they appear to be feasible solutions to this employee’s

problems dealing with changes to his routine. They also appear to be effective because they would

enable him to perform his cleaning duties.” (Id.)

These hypotheticals address requests for accommodations needed to perform the essential

functions of the job. Neither hypothetical provides guidance regarding equal access to employer-

sponsored benefits and privileges of employment. Additionally, the hypotheticals do not suggest

that freedom from mental and emotional pain constitutes such a benefit or privilege.

D. Conclusion

There is no legally sufficient evidentiary basis for a reasonable jury to find that Mr.

Hopman has identified a cognizable benefit or privilege of employment that he is entitled to as a

reasonable accommodation. Accordingly, the Court grants Union Pacific’s renewed motion for

judgment as a matter of law (Dkt. No. 193). Having determined that Mr. Hopman does not have

a cognizable claim for relief under the Rehabilitation Act or ADA, the Court need not address

Union Pacific’s second argument on its federal-conflict defense regarding federal safety

regulations prohibiting Atlas from being in the cab of a locomotive.

III. Motion For Equitable Relief

Also before the Court is Mr. Hopman’s motion for equitable relief (Dkt. No. 200). Because

the Court grants Union Pacific’s motion for judgment as a matter of law, the Court denies Mr.

Hopman’s motion for equitable relief (Id.)

IV. Motion To Strike

Before the Court is Mr. Hopman’s motion to strike the declaration of Robert Carty and

attached photographs that are Exhibit 4 to Union Pacific’s renewed motion for judgment as a

matter of law (Dkt. Nos. 197; 193-4). Mr. Hopman contends that Union Pacific is attempting to

introduce into evidence photographs that it neglected to offer into evidence at trial (Dkt. No. 197,

at 1). The photographs are of a demonstrative that Union Pacific created on the floor of the

courtroom during trial in an effort to show the size of the cab of a locomotive (Id.). Mr. Hopman

argues that the record is closed, the demonstrative is not part of the record, and Union Pacific

provides no authority for reopening the trial record and made no motion to reopen the record (Id.,

at 2). Union Pacific responds that Mr. Hopman does not challenge the authenticity or accuracy of

the photographs attached to Mr. Carty’s declaration, and both the jury and the Court had the benefit

of the images contained in the photographs during trial (Dkt. No. 206, at 1). Union Pacific

contends that appellate courts may take demonstrative exhibits into account when reaching

determinations (Id., at 2).

Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a pleading. .

. any redundant, immaterial, impertinent, or scandalous matter.” An allegation contained in a

pleading is immaterial if it “has no essential or important relationship to the claim for relief or the

defenses being pleaded.” CitiMortgage, Inc. v. Just Mortgage, Inc., Case No. 4:09 CV 1909 DDN,

2013 WL 6538680, at *7 (E.D. Mo. Dec. 13, 2013) (internal quotations omitted). An allegation is

impertinent if it “consists of statements that do not pertain, and are not necessary, to the issues in

question.” Id. While Rule 12(f) is understood to provide courts with “liberal discretion,” the

Eighth Circuit Court of Appeals has stated that “striking a party’s pleadings is an extreme measure,

and, as a result, we have previously held that ‘[m]otions to strike under Fed. R. Civ. P. 12(f) are

viewed with disfavor and are infrequently granted.’” Stanbury Law Firm v. I.R.S., 221 F.3d 1059,

1063 (8th Cir. 2000) (quoting Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977)).

The Court grants the motion to strike the declaration of Robert Carty and attached

photographs that is Exhibit 4 to Union Pacific’s renewed motion for judgment as a matter of law

(Dkt. Nos. 197). Union Pacific did not present the photographs for admission into evidence at

trial, and the Court has not considered the declaration or attached photographs in ruling on Union

Pacific’s renewed motion for judgment as a matter of law.

V. Conclusion

The Court grants Union Pacific’s renewed motion for judgment as a matter of law (Dkt.

No. 193). The Court will enter judgment for Union Pacific as a matter of law on Mr. Hopman’s

claims. Mr. Hopman’s motion for equitable relief is denied (Dkt. No. 200). The Court grants Mr.

Hopman’s motion to strike (Dkt. No. 197). The Court orders the Clerk to strike docket number

193-4 from the record.

It is so ordered this 30th day of March, 2022.

tas G. Baker

United States District Judge

25