Goeldner v. Union Pacific Railroad Company

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

ERICH GOELDNER, )

)

Plaintiff, )

)

v. ) No. 4:19-cv-00692-NKL

)

UNION PACIFIC RAILROAD )

COMPANY, )

)

Defendant. )

ORDER

Plaintiff’s complaint alleges four claims under the Americans with Disabilities Act (ADA),

42 U.S.C. 12101 et seq.: disparate treatment, disparate impact, unlawful medical inquiries, and

failure to accommodate.1 Doc. 1 (Complaint). Plaintiff’s claims arise from Defendant’s

determination under its internal medical policy that Plaintiff was unfit to return to work following

shoulder surgery. Pending before the Court are Defendant Union Pacific’s motion to dismiss, Doc.

8, and Plaintiff Erich Goeldner’s motion to amend the complaint, Doc. 29. For the reasons set forth

below, Plaintiff’s motion to amend is GRANTED and Defendant’s motion to dismiss is DENIED.

I. Alleged Facts

Goeldner began working at Union Pacific as a brakeman/conductor in January 2006. Doc.

1, ¶ 2. On August 21, 2016, Goeldner dislocated his left shoulder while on duty as a brakeman as

a result of his backpack slipping from his shoulder while exiting a locomotive. Id., ¶¶ 29–31.

1. Union Pacific challenges Goeldner’s claim for failure to accommodate, arguing that

Goeldner did not exhaust his administrative remedies and failed to sufficiently plead this claim. In

his response brief on this issue, Goeldner states that he “withdraws Count IV for failure to

accommodate and consents to its dismissal without prejudice.” Doc. 20, at 5 n.1. The Court in this

order dismisses Goeldner’s Count IV for failure to accommodate without prejudice, and therefore

need not address this claim on the merits.

Goeldner was taken to a hospital, “but was ultimately able to pop his shoulder back into place

without medical intervention.” Id., ¶ 32. Following this injury, Goeldner was diagnosed with a

shoulder labral tear which was surgically repaired on September 21, 2016. Id., ¶¶ 34–35. On

December 27, 2016, Goeldner’s physician released him to return to work without restrictions. Id.,

¶ 36, Doc. 1-5 (Plaintiff’s Charge of Discrimination to the EEOC).

Following his shoulder surgery, Union Pacific did not allow Goeldner to return to work.

Id., ¶ 37. Instead, on February 16, 2017, Union Pacific issued a Memo on Fitness for Duty

Determination which stated that Goeldner was “unfit to continue working as a

brakeman/conductor” and “imposed significant permanent restrictions” on his ability to work for

Union Pacific. Id., ¶¶ 38, 42. In a letter dated August 8, 2017, Union Pacific informed Goeldner

that a third-party doctor review of his case as requested by his union was not warranted, and his

current work restrictions remain in place. Id., ¶ 46; Doc 1-4.

Goeldner has not returned to work at Union Pacific, and on December 19, 2017 he filed a

charge of discrimination with the EEOC alleging that Union Pacific discriminated against him on

the basis of age and disability. Id., ¶¶ 49–50, Doc. 1-5. On June 10, 2019, the EEOC issued

Goeldner a right to sue letter. Id., ¶ 50, Doc. 1-6. Goeldner then filed this action on August 30,

2019 alleging disparate treatment, disparate impact, unlawful medical inquiries, and failure to

accommodate under the ADA, 42 U.S.C. 12101 et seq. Doc. 1. A parallel class action brought

against Union Pacific asserting similar ADA claims of disparate treatment, disparate impact, and

unlawful medical inquiries based on the same policy of requiring fitness for duty assessments and

determinations was filed on November 25, 2015. The court in that case granted class certification

for the class of “[a]ll individuals who have been or will be subject to a fitness-for-duty examination

as a result of a reportable health event at any time from September 18, 2014 until the final

resolution of this action.” Harris v. Union Pac. R.R. Co., 329 F.R.D. 616, 628 (D. Neb. 2019). On

February 27, 2019, Union Pacific appealed the class certification. Goeldner asserts that he qualifies

as a member of the Harris class, and has opted-out of that class to file his individual claims through

this action. Doc. 20, at 7, 11.

II. Discussion

A. Amending Complaint by Interlineation

The Court first addresses Goeldner’s motion to amend the complaint by interlineation, Doc.

29. Federal Rule of Civil Procedure 15(a) provides that a request for leave to amend a complaint

“shall be freely given when justice so requires.” Construing this Rule, the Supreme Court has held

that “[i]n the absence of . . . undue delay, bad faith or dilatory motive . . . , repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . [or]

futility of amendment, etc.,” leave should indeed by freely given. Foman v. Davis, 371 U.S. 178,

182 (1962).

In pleading his claim for disparate treatment, Goeldner’s complaint cites as the applicable

standard 42 U.S.C. § 12112(b)(6), a subsection of the ADA used in asserting claims for disparate

impact. Doc. 1, at ¶ 59. Goeldner acknowledges that this was a mistaken reference and moves to

amend this paragraph in his complaint by interlineation to substitute reference to the applicable

section for pleading a claim of disparate treatment, 42 U.S.C. § 12112(b)(1). Union Pacific opposes

this motion on the grounds that even if the proposed amendment was granted, Goeldner’s claim

would still fail to withstand a motion to dismiss as his claim would still be time-barred.

As this Court finds that Goeldner’s claims are not time-barred, an amendment would not

be rendered futile due to Union Pacific’s asserted statute of limitations defense. Goeldner timely

filed this motion to amend in advance of the deadline set by the Scheduling Order, Doc. 21, and

there is no assertion that this amendment would cause any undue delay or prejudice. Accordingly,

in the interest of justice, and so Goeldner can clearly state and test his claim of disparate treatment

on the merits, Goeldner’s motion to amend, Doc. 29, is granted. Paragraph 59 of Plaintiff’s

Complaint, Doc. 1, is amended by interlineation to state as follows:

Discriminating against a qualified individual on the basis of disability includes

“limiting, segregating, or classifying a job applicant or employee in a way that

adversely affects the opportunities or status of such applicant or employee because

of the disability of such applicant or employee.” 42 U.S.C. § 12112(b)(1).

B. Exhaustion of Administrative Remedies

Prior to bringing a claim of discrimination under the ADA in court, a plaintiff must first

exhaust her administrative remedies by timely filing a charge of discrimination with the EEOC

within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 12117(a) (incorporating

Title VII’s enforcement provisions in 42 U.S.C. § 2000e-5 to the ADA). “Exhaustion of

administrative remedies is central to Title VII’s statutory scheme because it provides the EEOC

the first opportunity to investigate discriminatory practices and enables it to perform its roles of

obtaining voluntary compliance and promoting conciliatory efforts.” Williams v. Little Rock Mun.

Water Works, 21 F.3d 218, 222 (8th Cir. 1994).

Union Pacific asserts that Goeldner’s disparate treatment claim is time-barred and

substantively flawed, that he did not exhaust his administrative remedies for his disparate impact

claim,2 and that he neither exhausted his administrative remedies nor stated a claim for which relief

can be granted for his claim of unlawful medical inquiries. Doc. 8. Specifically, Union Pacific

argues that Goeldner’s charge of discrimination with the EEOC was filed after the statute of

2. Union Pacific states in its motion to dismiss that “Goeldner has not pleaded facts plausibly

suggesting his entitlement to relief under the ADA, as to Counts II, III, and IV, as required to state

a claim,” Doc. 8, at 2, but did not provide argument in its briefing regarding whether Goeldner’s

Count II, disparate impact, states a claim for relief.

limitations for him to do so expired, and his claims are now time-barred.

Goeldner filed his EEOC charge on December 19, 2017. Defendant argues that the last

adverse employment action taken against Goeldner occurred on February 16, 2017 when Union

Pacific imposed permanent work restrictions on Goeldner. If this date controls, which the Court

will assume for the purposes of this motion, Goeldner’s charge of discrimination was filed 306

days after the last unlawful employment action. Unless this limitations period was tolled,

Goeldner’s ADA claims would be time-barred for failure to file a charge with the EEOC within

the 300-day statute of limitations.

1. Class Action Tolling Under American Pipe

The first issue to address is whether Goeldner’s claims are tolled under the principles set

forth by the Supreme Court in American Pipe. Under American Pipe, the timely filing of a class

action tolls the applicable statute of limitations for putative class members. Am. Pipe & Const. Co.,

414 U.S. 538, 554 (1974). This tolling of plaintiff’s claims begins at “the commencement of a

class action” and “suspends the applicable statute of limitations as to all asserted members of the

class who would have been parties had the suit been permitted to continue as a class action.” Id. at

554 (1974) (emphasis added). “Once the statute of limitations has been tolled, it remains tolled for

all members of the putative class until class certification is denied.” Crown, Cork & Seal Co. v.

Parker, 462 U.S. 345, 354 (1983).

Goeldner argues that his claims are not time-barred because the statute of limitations for

filing his charge of discrimination with the EEOC was tolled because he was a member of the

putative class action in Harris v. Union Pacific Railroad Co., and he therefore timely filed his

charge with the EEOC as necessary to exhaust his administrative remedies prior to bringing this

suit. See Harris v. Union Pac. R.R. Co., 329 F.R.D. 616 (D. Neb. 2019). Union Pacific argues that

Goeldner is not a member of the Harris class because the certified class consists of “[a]ll

individuals who have been or will be subject to a fitness-for-duty examination as a result of a

reportable health event at any time from September 18, 2014 until the final resolution of this

action.” Harris v. Union Pac. R.R. Co., 329 F.R.D. 616, 628 (D. Neb. 2019). According to Union

Pacific, the term “reportable health event” as used in the class certification order is derived from

the company’s reportable health events policy, and only applies to certain medical conditions, and

not to Goeldner’s shoulder dislocation and surgery. Doc. 1-2 (Union Pacific’s Medical Rules), at

11–12. Alternatively, Union Pacific argues that even if Goeldner is a member of the Harris class,

tolling should not apply because American Pipe tolling only applies if class certification is denied.

To determine whether Goeldner is a member of the “Harris class” for the purposes of

tolling, the Court must look to the class action complaint filed in the Harris case, not the class

actually certified. American Pipe, 414 U.S. at 554 (1974) (“We are convinced that the rule most

consistent with federal class action procedure must be that the commencement of a class action

suspends the applicable statute of limitations as to all asserted members of the class who would

have been parties had the suit been permitted to continue as a class action.”) (emphasis added). In

the Harris complaint the class members are defined as:

Individuals who were removed from service over their objection, and/or suffered

another adverse employment action, during their employment with Union Pacific

for reasons related to a Fitness-for-Duty evaluation at any time from 300 days

before the earliest date that a named Plaintiff filed an administrative charge of

discrimination to the resolution of this action.

Amended Complaint at 17, Harris v. Union Pac. R.R. Co., No. 2:15-CV-01865-JCC (D. Neb. Feb.

19, 2016), ECF No. 20. Goeldner’s permanent work restrictions following a Fitness-for-Duty

evaluation at Union Pacific qualify him as a member of the putative class action as asserted in the

complaint in Harris.

As for Union Pacific’s alternative argument that American Pipe tolling only applies if class

certification is denied, the Court finds the Defendant’s authority unpersuasive. The two cases cited

by the defendants are China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018) and Weitzner v. Sanofi

Pasteur, Inc., 909 F.3d 604, 609 (3rd Cir. 2018) and both these cases deal with successive class

actions, not individual claims filed by class members after a class action is filed.

Courts that have dealt with class members filing an individual claim after a class action is

filed have found that American Pipe tolling applies even if class certification is granted. The Eighth

Circuit held in Zarecor v. Morgan Keegan & Co. that “whether a plaintiff’s participation in a class

action ends with a decision to opt out rather than with denial of class certification ‘is irrelevant to

the applicability of the American Pipe rule.’” 801 F.3d 882, 888 (8th Cir. 2015) (quoting Adams

Pub. Sch. Dist. v. Asbestos Corp., 7 F.3d 717, 718 n.1 (8th Cir.1993); accord Grispino v. New

England Mut. Life Ins. Co., 358 F.3d 16, 19 (1st Cir. 2004) (noting that there is “a consistent line

of federal circuit court cases holding that the American Pipe tolling doctrine applies to plaintiffs

who opt out of a class action in federal district court”); Realmonte v. Reeves, 169 F.3d 1280, 1284

(10th Cir. 1999) (“that [plaintiffs’] participation in the class action terminated with a decision to

opt out of a certified class rather than with the denial of class certification is irrelevant to the

applicability of the American Pipe tolling rule”); Tosti v. City of Los Angeles, 754 F.2d 1485, 1488

(9th Cir. 1985) (“when certification has been granted, the statute [of limitations] begins running

anew from the date when the class member exercises the right to opt out”); Santiago v. Fischer,

No. 09-CV-1383-MKBST, 2017 WL 4349378, at *6 (E.D.N.Y. Sept. 29, 2017) (holding that

tolling under American Pipe can extend beyond class certification).

The goal of American Pipe tolling is to preserve “litigative efficiency and economy” by

preventing each potential class member from being induced to file individual suits or motions to

intervene for fear that reliance on only a separate putative class action may result in their claims

being barred. American Pipe, 414 U.S. at 554. Equitably tolling Goeldner’s claims would not

frustrate the goal of requiring parties to operate within the statute of limitations, as the intended

purpose of statutes of limitations are to “put defendants on notice of adverse claims and to prevent

plaintiffs from sleeping on their rights, but these ends are met when a class action is commenced.”

Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 352 (1983) (citations omitted). Union Pacific

has been appropriately notified by the class action complaint and is acutely aware of Goeldner’s

claims given the discovery and litigation in the related Harris class action.3

2. Scope of EEOC Charge

While the parties do not dispute that Goeldner’s charge of discrimination to the EEOC

alleged a claim of disparate treatment, Union Pacific argues that the charge, even if timely filed,

did not allege claims of disparate impact or unlawful medical inquiries, and that Counts II and III

should therefore be dismissed for failure to exhaust administrative remedies. Goeldner contends

that his charge filed with the EEOC was stated broadly enough to cover both of these claims, and

he therefore exhausted his administrative remedies prior to filing this suit.

“While a charge of discrimination ‘need not specifically articulate the precise claim, it

must nevertheless be sufficient to give the employer notice of the subject matter of the charge and

identify generally the basis for a claim.’” Malone v. Ameren UE, 646 F.3d 512, 516 (8th Cir. 2011)

(quoting Humphries v. Pulaski Cnty. Special Sch. Dist., 580 F.3d 688, 697 (8th Cir. 2009)). “To

determine whether an allegedly discriminatory action falls within the scope of a claim, the

administrative complaint must be construed liberally in order to further the remedial purposes of

3. As for Union Pacific’s argument that it would be inequitable to give Goeldner the

protection of equitable tolling when he has not opted out of the class action, there is an insufficient

record to support that argument. Further, even if he has not opted out, there are more equitable

ways to address that concern than to deny his individual claims when, if Union Pacific is correct,

he is not even an actual member of the class initially certified.

applicable legislation.” Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th Cir. 2002)

(citing Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988)). In determining whether a claim

asserted in a complaint falls within the scope of the charge filed, it is understood that the civil suit

may only include claims “as broad as the scope of the EEOC investigation which reasonably could

be expected to result from the administrative charge.” Kirklin v. Joshen Paper & Packaging of

Arkansas Co., 911 F.3d 530, 536 (8th Cir. 2018) (quoting Shelton v. Boeing Co., 399 F.3d 909,

912 (8th Cir. 2005)).

Goeldner’s charge to the EEOC stated, in relevant part, that he sustained an on-the-job

injury, he received medical attention, he was released by his doctor to return to work without

restrictions, that “the company’s medical officer did a fitness for duty assessment,” that the

company’s doctor imposed permanent work restrictions against him preventing him from returning

to his previous position, that he “submitted to a functional capacity exam,” that he was “advised

that [he] needed to request a conference between [his] doctor and the company’s medical officer,”

and that he was then informed that there would be no further medical review and his work

restrictions would remain in place. Goeldner ended section specifying the particulars of his case

noting that he believed he “was discriminated against because of [his] age . . . and because [he]

was regarded as disabled . . . .” Doc. 1-5.

Unlike claims of disparate treatment where “discriminatory motive is critical,” disparate

impact claims are distinguishable for involving “employment practices that are facially neutral in

their treatment of different groups but that in fact fall more harshly on one group than another and

cannot be justified by business necessity.” International Broth. of Teamsters v. United States, 431

U.S. 324, 335 n.15 (1977); see also Brown v. Ameriprise Fin. Servs. Inc., 707 F. Supp. 2d 971,

976 (D. Minn. 2010) (“disparate treatment involves intentional discrimination against an

individual (or group of individuals), while disparate impact involves unintentional

discrimination.”) (citations omitted). Goeldner’s charge did not specifically assert that an

individual acted with intent to discriminate against him, but stated that “he was regarded as

disabled.” Doc. 1-5, at 1. Goeldner identified that following being cleared by his physician, he was

subject to a fitness for duty assessment and a functional capacity exam. Id. This statement leaves

open the possibility that a neutral company policy had resulted in his unfairly being regarded as

disabled. Goeldner did not narrow his claim t just intentional discrimination. Addressing the broad

language used by Goeldner, it is reasonable that an investigation conducted by the EEOC would

review both the possibility of a disparate treatment claim and a related ancillary disparate impact

claim. Once the EEOC investigated the case and found that Goeldner did not meet Union Pacific’s

medical standards but had met outside medical standards, it would be natural for the EEOC to

question the business justification for these medical assessments and the possibility of a disparate

impact claim stemming from a facially neutral employment policy which could disproportionately

bar individuals with disabilities from being able to work. Similarly, while evaluating the

appropriateness of Union Pacific’s medical policies generally, the fact that Union Pacific requires

its employees to supply their medical records which could divulge their injuries and disabilities to

be used against the employees would have been an expected offshoot of the EEOC’s investigation.

Goeldner’s charge of discrimination provided the necessary procedures and policies in effect at

Union Pacific for the EEOC to have been put on notice of not only a direct disparate treatment

claim against Goeldner, but of related claims for disparate-impact and unlawful medical inquiries.

Because this Court finds that Goeldner’s claims for disparate impact and unlawful medical

inquiries were within the scope of the charge filed with the EEOC, the Court need not address

Goeldner’s argument that his claims were administratively exhausted due to the properly filed

charges of others through the single filing rule.

C. Failure to State a Claim

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint

“must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible

on its face.’” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). A claim has facial plausibility when its allegations rise above being

“speculative” or “conceivable,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007), and

where “the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Such a complaint

will be liberally construed in the light most favorable to the plaintiff. Eckert v. Titan Tire Corp.,

514 F.3d 801, 806 (8th Cir. 2008). However, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

1. Count I – Disparate Treatment

To establish a prima facie case of discrimination under the ADA, Goeldner must

demonstrate that “(1) he is a disabled person as defined by the ADA, (2) he is qualified to perform

the essential functions of his job with or without reasonable accommodation, and (3) he suffered

an adverse employment action because of his disability.” Higgins v. Union Pac. R.R. Co., 931 F.3d

664, 669 (8th Cir. 2019) (citation omitted).

Goeldner alleges that he a qualified individual with a disability under the ADA; that he

maintains the requisite skill, experience, education, and other job-related requirements of his

positions; and that he was capable of performing the essential functions of his brakeman/conductor

position. Doc. 1, at ¶¶ 55–57. The ADA makes it unlawful for an employer to discriminate against

any “qualified individual on the basis of disability.” 42 U.S.C. § 12112(a); Hill v. Walker, 737

F.3d 1209, 1216 (8th Cir. 2013). Discriminating on the basis of a disability includes “limiting,

segregating, or classifying a job applicant or employee in a way that adversely affects the

opportunities or status of such applicant or employee because of the disability of such applicant or

employee.” 42 U.S.C. § 12112(b)(1). The burden of establishing a prima facie case of disparate

treatment is not onerous. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Union Pacific argues that Goeldner’s claim for disparate treatment should be dismissed

for failure to state a claim as the section of the complaint pleading this claim made reference to a

section of the ADA used when asserting a claim of disparate impact, 42 U.S.C. § 12112(b)(6). As

the Court has already granted Plaintiff’s motion to amend this paragraph by interlineation, and

given that the amended paragraph now asserts an appropriate reference for pleading a claim of

disparate treatment, Union Pacific’s argument is now moot. Goeldner alleges that Union Pacific

discriminated against him on the basis of his disability by issuing permanent work restrictions on

him preventing him from working, despite his ability to perform the essential functions of his

work. Doc. 1, at ¶¶ 41, 55–61. The factual allegations in Goeldner’s complaint are sufficient to

draw an inference that Union Pacific would be liable for claim of disparate treatment.

2. Count II – Disparate Impact

The ADA additionally makes it unlawful for a covered employer to discriminate on the

basis of disability through “utilizing standards, criteria, or methods of administration . . . that have

the effect of discrimination on the basis of disability.” 42 U.S.C. 12112(b)(3). Goeldner alleges

that Union Pacific’s fitness for duty policies and practices “disproportionally—and adversely—

impact qualified individuals with disabilities.” Doc. 1, at ¶ 68. Goeldner further alleges that Union

Pacific “routinely issue Fitness for Duty determinations that disqualify employees from their

positions on the basis of their abilities, even though the disabilities do not affect the employees’

ability to perform the essential functions of their job” and that Union Pacific cannot show that the

policies and standards they employ are “job-related and consistent with business necessity.” Doc.

1, at ¶¶ 17, 70. Union Pacific challenges the sufficiency of the pleading of this claim, but provides

no support for this argument in its briefing. Given Goeldner’s allegations that he was denied the

ability to return to his position despite being able to work in that position, in construing the

allegations in the light most favorable to plaintiff, it is possible to draw a reasonable inference that

Union Pacific would be liable for a claim of disparate impact.

3. Count III – Unlawful Medical Inquiry

Under the ADA, employers are generally prohibited from requiring current employees to

undergo medical examinations or inquiries unless the employer can demonstrate they are “job-

related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4). To survive a motion to

dismiss, Plaintiff must plead that (1) he was an employee of Defendant, and (2) that Defendant

required a medical examination or made a disability-related inquiry of him. Under the ADA, a

medical inquiry is improper if it “may tend to reveal a disability.” Krehbiel v. Union Pac. R.R. Co.,

No. 2:19-CV-02002-JAR-JPO, 2019 WL 3387049, at *5 (D. Kan. July 26, 2019). A plaintiff must

also show that the alleged violation of the ADA caused a tangible injury. Hustvet v. Allina Health

Sys., 910 F.3d 399, 406 (8th Cir. 2018).

Goeldner alleges in his complaint that while an employee of Union Pacific, the company

had a policy of reviewing the medical status of employees who had certain changes in their health

status. Doc. 1, at ¶8–11. These internal policies adhered to standard protocols and allegedly

resulted in in improper and broad requests for medical records that were used to impose work

restrictions on employees on the basis of their disabilities. Id., at ¶¶ 12–23, 74–75. Goeldner asserts

that the medical inquiries were not job-related or consistent with business necessity, and that he

was otherwise cleared to work without restriction. Id., at ¶ 36, 76.

Goeldner states that he was given permanent work restrictions following one such review

of his medical records, and alleges that as a result of this improper disability-related inquiry he

was prevented from being able to perform his job and that he continues to suffer loss of income,

emotional distress, and other damages. Id., at ¶¶ 38, 41, 43, 77. Construing the alleged facts in the

light most favorable to Goeldner, the complaint alleges sufficient factual allegations to plausibly

state a claim for unlawful medical inquiries.

III. Conclusion

For the reasons set forth above, Plaintiff’s Count IV, failure to accommodate, is

DISMISSED without prejudice; Plaintiff’s motion to amend complaint, Doc. 29, is GRANTED;

and Defendant’s motion to dismiss, Doc. 8, is DENIED.

/s/ Nanette K. Laughrey

NANETTE K. LAUGHREY

United States District Judge

Dated: March 9, 2020

Jefferson City, Missouri