The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES CHADWICK : CIVIL ACTION
:
v. : NO. 21-3991
:
NORFOLK SOUTHERN RAILWAY :
COMPANY :
MEMORANDUM
SCHMEHL. J. July 10, 2023
Plaintiff brought this action claiming the Defendant Norfolk Southern Railway
Company (“Norfolk Southern”) violated the Americans with Disabilities Act (“ADA”), the
Rehabilitation Act (“RA”) and the Pennsylvania Human Relations Act (“PHRA”) when it
allegedly: 1) medically disqualified him from returning to work as a locomotive engineer
(Count I); denied his request for a reasonable accommodation (Count II); and 3)
retaliated against him for filing a charge of discrimination with the Equal Employment
Opportunity Commission (Count III). He also claims that Norfolk Southern medically
disqualified him and did not offer any vocational assistance because of his age in
violation of the Age Discrimination in Employment Act (“ADEA”) (Count IV). Presently
before the Court is Norfolk Southern’s motion for summary judgment. In his Response
in Opposition to Norfolk Southern’s Motion for Summary Judgment, Plaintiff has
conceded his claims for retaliation (Count III) and age discrimination (Count IV). ECF 42
at p.1. For the reasons that follow, the motion is denied without prejudice.
STANDARD OF REVIEW
A court shall grant a motion for summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “genuine” if there is a
sufficient evidentiary basis on which a reasonable jury could return a verdict for the non-
moving party. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is
“material” if it might affect the outcome of the case under governing law. Id. (citing
Anderson, 477 U.S. at 248).
Under Rule 56, the Court must view the evidence presented on the motion in the
light most favorable to the non-moving party. See Anderson, 477 U.S. at 255. However,
“[u]nsupported assertions, conclusory allegations, or mere suspicions are insufficient to
overcome a motion for summary judgment.” Betts v. New Castle Youth Dev. Ctr., 621
F.3d 249, 252 (3d Cir. 2010). The movant bears the initial responsibility for informing the
Court of the basis for the motion for summary judgment and identifying those portions of
the record that demonstrate the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the
burden of proof on a particular issue, the moving party’s initial burden can be met simply
by “pointing out to the district court that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325. After the moving party has met the initial burden,
the non-moving party must set forth specific facts showing that there is a genuinely
disputed factual issue for trial by “citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other materials” or
by “showing that the materials cited do not establish the absence or presence of a
genuine dispute.” Fed. R. Civ. P. 56(c).
Summary judgment is appropriate if the non-moving party fails to rebut by
making a factual showing “sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Celotex,
477 U.S. at 322.
FACTS
The following facts have either been stipulated to by the parties (where indicated)
or construed in the light most favorable to Plaintiff:
1. Plaintiff started working for Norfolk Southern as a locomotive engineer on June
1, 1999 following Norfolk Southern’s acquisition of Conrail. Joint Statement of
Undisputed Material Facts (“SOF”) ECF 40 at ¶ 1; See ECF 40-2, Career
Service Record, at NORFOLK_00000425; Ex. 3, Plaintiff’s Answers to
Interrogatories No. 16.
2. Locomotive engineers operate locomotives and are responsible for moving
freight safely and efficiently in accordance with all applicable regulations.
SOF at ¶ 2; See ECF 40-4, Deposition Transcript of Shaun McCoy, at pp.
8:18-9:3; ECF 40-3, Ans. to Interrogatory, at Ans. No. 16.
3. Failure to operate a locomotive in a safe manner can impact on an
individual’s own safety, their co-workers, and the general public; therefore,
the Federal Railway Administration (“FRA”) deems a locomotive engineer to
be a safety-sensitive position. SOF at ¶ 3; See 49 C.F.R. § 209.303; ECF 40-
1, Deposition Transcript of J. Chadwick, at pp. 79:15-19; ECF 40-5,
Deposition Transcript of Anita Euell, at pp. 75:18-22; ECF 40-6, Locomotive
Engineer Job Demand Forms, at NORFOLK_00000444-445 and
NORFOLK_00000446-447.
4. Engineers must maintain sufficient alertness and concentration to safely
operate the locomotive which includes monitoring engine speed and air
brake pressure, moving engine controls, and maintaining communications
with other personnel, including conductors, to properly control train
movements. SOF at ¶ 5; See ECF 40-6, Locomotive Engineer Job Demand
Forms, at NORFOLK_00000444-445 and NORFOLK_00000446-447; See
ECF 40-4, Deposition Transcript of S. McCoy, at pp. 39:12-40:3.
5. Plaintiff testified that he understood that there are safety rules imposed by the
federal government on Norfolk Southern. ECF 40-1, at pp. 44:23-47:7, 51:5-
11.
6. Plaintiff testified that he understood that the unsafe operation of a locomotive
poses a significant risk to the community. SOF at ¶ 4; See ECF 40-1,
Deposition Transcript of J. Chadwick, at pp. 47:14-48:19.
7. Plaintiff was at all times relevant to this matter, a member of the Brotherhood
of Locomotive Engineers and Trainmen (“BLET”) union, and subject to a
Collective Bargaining Agreement (“CBA”) which establishes a process for
challenging medical disqualification. ECF 40-32, BLET CBA.
8. Plaintiff underwent surgery to remove a brain tumor on August 26, 2013 and
developed a seizure disorder in 2014. SOF at ¶ 6; See ECF 40-7, September
30, 2015 Physical Therapy Initial Examination, RFPOD 00167; ECF 40-8,
June 12, 2014 Neurology Office Visit Notes, at Plaintiff’s RFPOD 000147-
148.
9. After recovering from surgery, Plaintiff returned to work in January 2014 and
remained in-service until he suffered a series of focal motor seizures in 2014
and 2015. SOF at ¶ 7; See ECF 40-7, September 30, 2015 Physical Therapy
Initial Examination, at Plaintiff’s RFPOD 00167; ECF 40-8, June 12, 2014
Neurology Office Visit Notes, at Plaintiff’s RFPOD 000147-148; ECF 40-9,
October 9, 2014 Neurology Office Visit Note, at Plaintiff’s RFPOD 000141-
145; ECF 40-10, February 11, 2015 Neurology Office Visit Notes, at
Plaintiff’s RFPOD 000138; ECF 40-11, February 19, 2015 Neurology Office
Visit Notes, at Plaintiff’s RFPOD 00135.
10. In a letter to Plaintiff dated August 21, 2014 which requested further medical
information from Plaintiff, the then Director of Medical Services for Norfolk
Southern concerning Plaintiff’s fitness-for-service as a locomotive engineer,
Paula Lina, M.D., wrote, in part:
As information, NS Medical Department guidelines for a
Locomotive Engineer with a Seizure Disorder require
documentation of the control and stability of the condition,
including a minimum seizure free period of 2 years since the
date of the last seizure while on a stable medication regimen
or a minimum seizure free period of 2 years since the date of
the last seizure while off medication.
ECF 42-3 (emphasis in original).
11. In a letter dated October 20, 2015, Plaintiff’s treating neurologist, Warqaa Majeed,
M.D. wrote:
James Chadwick is a current patient being treated for
seizures. Patient may return to back to work. However, patient
should not operate heavy machinery independently. No other
restrictions or accommodations are required. Patient may do
physical activity as tolerated.
ECF 40-12.
12. Ultimately, Plaintiff’s seizures were controlled by behavior modification (no
consumption of alcohol) and his compliance with prescribed anti-seizure
medication. SOF at ¶ 8; See ECF 40-1, at pp 139:4-11, 139:20-140:20.
13. In order to return to work in 2017, Plaintiff needed to renew his engineer
certification and underwent a Periodic Health Assessment. SOF at ¶ 9; See
ECF 40-1, Deposition Transcript of J. Chadwick, at pp. 63:10-21.
14. The Periodic Health Assessment is required by the FRA to ensure engineers
maintain their certification. The assessment tests hearing levels, and color
and distance vision to ensure the engineer meets the minimum safety
requirements. The assessment also includes a questionnaire to report any
medical conditions and prescribed medications, and a check of vitals. SOF at
¶ 10; See 49 CFR §240.121; Ex. ECF 40-16, April 23, 2020 Email to EEOC,
at NORFOLK_00000085.
15. Plaintiff failed the eye exam and was required to see his ophthalmologist to
confirm his corrected vision met the appropriate standard. Plaintiff complied
and was returned to work “without restriction as an engineer only” on
February 27, 2017. ECF 40-15.
16. Plaintiff has been directed to see an ophthalmologist to confirm his vision
met the appropriate standard after most of his vision tests. ECF 40-1, at pp.
76:15-78:2
17. In accordance with FRA regulations, engineers must undergo periodic
medical reviews to maintain their certification. SOF at ¶ 13; See 49 CFR
§240.121; Ex. 40-16, April 23, 2020 Email to EEOC, at
NORFOLK_00000085.
18. In order to be certified as a locomotive engineer, engineers are required to
complete vision and hearing screenings every three years; "no railroad shall
certify a person as a qualified locomotive engineer for an interval of more
than 36 months.” SOF at ¶ 14; 49 CFR §240.217(c)(1); see also 49 CFR
§240.121.
19. Engineers must meet the regulatory vision standard which requires “(i)
distant visual acuity of at least 20/40 (Snellen) in each eye without corrective
lenses, or (ii) Distant visual acuity separately corrected to at least 20/40
(Snellen) with corrective lenses and distant binocular acuity of at least 20/40
(Snellen) in both eyes with or without corrective lenses.” SOF at ¶ 15; 49
CFR §240.121.
20. Norfolk Southern requires engineers to complete a Periodic Health
Assessment every three years which tests hearing levels, and vision to
ensure the engineer meets the minimum safety requirements. The Periodic
Health Assessment also includes a questionnaire to report any medical
conditions and prescribed medications, and a check of vitals. SOF at ¶ 16;
See ECF 40-16, April 23, 2020 Email to EEOC, at NORFOLK_0000008;
ECF 40-5, Deposition Transcript of A. Euell, at pp. 76:2-8; 49 CFR §240.121;
49 CF §240.217(c)(1).
21. Plaintiff had last completed a Periodic Health Assessment three years prior
when he returned to work as an engineer in 2017. SOF at ¶ 17; See ECF 40-
1, Deposition Transcript of J. Chadwick, at pp. 63:10-2.
22. Therefore, on July 20, 2020, Plaintiff underwent a Periodic Health
Assessment. SOF at ¶ 18; See ECF 40-17, July 20, 2020 Periodic Health
Assessment, at NORFOLK_00000256-263.
23. The July 20, 2020 vision test within the Periodic Health Assessment revealed
that Plaintiff’s vision did not meet the regulatory standard for an engineer.
SOF at ¶19; See ECF 40-17, July 20, 2020 Periodic Health Assessment, at
NORFOLK_00000256-263; ECF 40-5, Deposition Transcript of A. Euell, at
pp. 75:23-76:1; ECF 40-1, Deposition Transcript of J. Chadwick, at pp. 80:5-
12; ECF 40-18, July 27, 2020 Letter from NSHS, at Plaintiff’s RFPOD
000001-4; ECF 40-16, April 23, 2020 Email to EEOC, at
NORFOLK_00000085.
24. During the July 20, 2020 Periodic Health Assessment Plaintiff also reported
prescription medication used [to] treat his seizure disorder on his health
questionnaire. SOF at ¶ 20; See ECF 40-17, July 20, 2020 Periodic Health
Assessment, at NORFOLK_00000256-263; ECF 40-5, Deposition Transcript
of A. Euell, at pp. 76:2-14; ECF 40-16, April 23, 2020 Email to EEOC, at
NORFOLK_00000085.
25. On July 21, 2020, Plaintiff’s skills to safely operate a locomotive were
assessed on a locomotive simulator. SOF at ¶ 21; See ECF 40-19, July 21,
2020 Performance Evaluation, at NORFOLK_00000031.
26. To determine Plaintiff’s fitness-for-service as of 2020, Norfolk Southern
Health Services (“NSHS”) requested in a letter dated July 27, 2020 from
Francesca Litow, M.D., MPH that Plaintiff provide up-to-date records from his
eye doctor confirming his “best corrected distance vision in each eye” and
also requested up to date medical records relating to his disclosure of
seizure medication on the questionnaire. Specifically, NSHS requested:
“Office visit notes from threating neurologist. Office visit note or written statement
from treating neurologist addressing: date of last known seizure; treatment,
including prescribed medication and any significant safety-impairing medication
side effects[he] may be experiencing; risk of experiencing a recurrent seizure
within the next six (6) months to one year; recommended work restrictions and/or
accommodations, and if any, their anticipated duration; if hospitalized, the
“hospital admission summary” and “physician’s discharge summary.” Please
request these documents from the Medical Records Department of the hospital.
It is not necessary to provide all of the hospitalization records; diagnostic test
results, including EEG report and MRI; lab results (including medication levels if
applicable).”
SOF at ¶ 22; ECF 40-18, July 27, 2020 Letter from NSHS, at Plaintiff’s
RFPOD 000001-4; ECF 40-8, Deposition Transcript of A. Euell, at pp. 75:23-
76:14.
27. NSHS resolved its concern with Plaintiff’s distance vision after receiving
additional information from Plaintiff’s ophthalmologist.
28. On May 18, 2020, Plaintiff had a virtual telehealth visit with Dr. Majeed. Dr.
Majeed did not conduct a physical examination of Plaintiff. In her telehealth
visit notes, Dr. Majeed noted that Plaintiff “had a history of complex partial
seizure with secondary generalization breakthrough seizure for more than 5
years, last MRI of brain no acute pathology postsurgical changes noted due
to history of meningloma removal. Meningloma discovered when the patient
had a seizure status post meningloma removal currently on Keppra and
Vimpat.” Under Assessment/Plan, Dr. Majeed wrote “complex partial seizure
continue on Vimpat 150 mg twice a day as directed continue on Keppra 500
mg in the morning 500 mg at noon time and 1000 mg at bedtime as directed
we will obtain Keppra level and will obtain screening blood work.” Dr. Majeed
further noted that Plaintiff’s mental status was “alert, oriented to person, place,
time and situation.” ECF 40-20, August 5, 2020 Fax from Dr. Majeed, at
NORFOLK
29. The telehealth visit notes did not provide the date of Plaintiff’s last known
seizure, did not describe any side effects from his medication, and did not
identify the likelihood of a recurrent seizure. See ECF 40-20, August 5, 2020
Fax from Dr. Majeed, at NORFOLK_00000358-360.
30. On August 5, 2020, Dr. Majeed faxed NSHS the telehealth visit notes from
the May 18, 2020 telehealth appointment. SOF at ¶ 23; See ECF 40-20,
August 5, 2020 Fax from Dr. Majeed, at NORFOLK_00000358-360.
31. In a letter dated August 5, 2020, Dr. Majeed wrote that “[Plaintiff] is a current
patient in the neurology office being seen for his history of seizures. His
seizures are controlled with the medications Keppra and Vimpat, and it has
been more than five years since his last event. Recommended work
restrictions for him include to not operate heavy machinery and to avoid
working at heights or on ladders.” See ECF 40-21, August 5, 2020 Letter
from Dr. Majeed at NORFOLK_00000361.
32. On August 7, 2020, NSHS Medical Services Clinician Anita Euell (“Ms.
Euell”), called Plaintiff leaving a voicemail acknowledging receipt of the
telehealth visit notes and the August 5, 2020 restriction from operating heavy
machinery. Ms. Euell specifically inquired of Plaintiff whether this new
restriction was in error. See ECF 40- 14, NSHS Case Management Notes, at
NORFOLK_00000309.
33. On August 11, 2020, Plaintiff called Dr. Majeed’s office and asked her to
“reword his work restrictions.” SOF at ¶ 25; ECF 40-22, Dr. Majeed Internal
Office Correspondence, at Plaintiff’s RFPOD 000064-65;ECF 40-1,
Deposition Transcript of J. Chadwick, at pp. 86:11-14.
34. On August 14, 2020, Dr. Majeed faxed NSHS a letter advising that “Patient may
return back to work. However, patient should not operate heavy machinery or climb
ladders independently. No other restrictions are required. Patient may do physical
activity as tolerated.” ECF 40-23, August 14, 2020 Letter from Dr. Majeed at
NORFOLK_00000341.
35. On September 3, 2020, Dr. Majeed faxed NSHS a duplicate copy of the May
18, 2020 telehealth visit notes. SOF at ¶ 26; ECF 40-24, September 3, 2020
Fax from Dr. Majeed, at NORFOLK_00000342-345.
36. On September 23, 2020, Dr. Majeed faxed NSHS a letter dated September
15, 2020 in which she wrote “Patient has not had a seizure for the past 8
years. [Plaintiff] may return to work to continue previous activities. However,
patient should not operate heavy machinery independently due to standard
seizure precautions. No other restrictions or accommodations are required.
Patient may do physical activity as tolerated.” ECF 40-25, September 15,
2020 Letter from Dr. Majeed, at NORFOLK_00000340.
37. On September 25, 2020, Dr. Majeed faxed NSHS a letter dated September
25, 2020 in which she wrote “[Plaintiff] may return to work to continue previous
activities. Patient is ok to operate heavy machinery as long as another
employee accompanies him in case of emergency. No other restrictions are
required.” ECF 40-26, September 25, 2020 Letter from Dr. Majeed, at
NORFOLK_00000339.
38. In a letter to Plaintiff dated October 16, 2020, Dr. Litow advised Plaintiff that
he was not cleared to return to duty “in your safety-sensitive job as an
Engineer.” She further informed Plaintiff that he was not being dismissed from
service, “as this medical restriction from active service can be removed if your
condition improves to the extent that you can safely return to work in your
present job. As information, evidence-based guidance related to commercial
drivers recommends a 10-year seizure free period for those diagnosed with
seizure disorders.” See ECF 40-27, October 16, 2020 Letter from NSHS, at
Plaintiff’s RFPOD 000019-20.
39. Plaintiff testified that he interpreted Dr. Litow’s language in the October 16,
2020 letter, “[a]s information, evidence based guidance related to commercial
drivers recommends a 10-year seizure-free period for those diagnosed with
seizure disorders” to mean “she wants me 10 years seizure free.” ECF 40-1 at
pp. 118-119.
40. The October 16, 2020 letter further informed Plaintiff that:
To evaluate your ability to return to work we will need the following:
Seizure Disorder from August 15, 2020 forward
• Office visit notes from treating neurologist.
• Office visit note or written statement from treating neurologist
addressing:
o date of last known seizure
o treatment, including prescribed medication and any significant
safety-impairing medication side effects that you may be
experiencing
o risk of experiencing a recurrent seizure within the next six (6)
months to one year.
o recommended work restrictions and/or accommodations, and if
any, their anticipated duration
• If hospitalized, the “hospital admission summary” and “physician’s
discharge summary”. Please request these documents from the Medical
Records Department of the hospital. It is not necessary to provide all of
the hospitalization records.
• Diagnostic test results, including EEG report and MRI
• Lab results (including medication levels if applicable)
ECF 40-27, at Plaintiff’s RFPOD 000019-20 (emphasis in original); ECF 40-1,
Deposition Transcript of J. Chadwick, at pp. 115:10-117:5, 117:9-22, 118:3-
119:21, 126:20-128:1; ECF 40-28, Deposition Transcript of Francesca Litow,
at pp. 42:8-43:14; 45:1-46:12; 46:25-47:11.
41. The letter also advised Plaintiff that if he wished to be considered for
employment in another vacant position for which he qualified and could work
safely, he should contact Norfolk Southern’s Vocational Rehabilitation
Services (“VRS”). See ECF 40-27, October 16, 2020 Letter from NSHS, at
Plaintiff’s RFPOD 000019-20.
42. Plaintiff testified that Norfolk Southern is entitled to ask for additional
information to determine his medical fitness relating to his vision and his
seizure disorder. See ECF 40-1, Deposition Transcript of J. Chadwick, at pp.
80:13-23, 116:23-117:5. 2
43. Plaintiff did not provide the records requested by NSHS in the October 16,
2020 letter that would allow NSHS to determine if he could return to work. ECF
40-28, Deposition Transcript of F. Litow, at pp. 44:16-22;
44. Plaintiff was placed on “Medical Hold” and he was required to provide records
confirming his distance vision and seizure disorder. See ECF 40-1, Deposition
Transcript of J. Chadwick, at pp. 76:15-78:1.
45. According to Norfolk Southern, “Medical hold is a temporary removal of an
employee from active service by NSHS. It may be issued for a variety of
reasons including, but not limited to, failure to comply with instructions,
concern over personal or public safety, and pending receipt of medical
information sufficient for NSHS to determine fitness-for-service.” ECF 42-7,
p.2 n.1.
46. Plaintiff’s Career Service Record as of September 21, 2021 indicated he was
on a medical hold. SOF at ¶ 27; See ECF 40-2, Career Service Record, at
NORFOLK_00000425.
47. Plaintiff admitted that Dr. Litow’s October 16, 2020 letter did not say he “could
not return to work”. See ECF 40-1, Deposition Transcript of J. Chadwick, at
pp. 126:20-128:1; 153:10-154:18.
48. Plaintiff testified that he did not recall seeing the part of the October 16, 2020
letter inviting him to contact VRS. See ECF 40-1, Deposition Transcript of J.
Chadwick, at pp. 112:7-113:17.
49. Plaintiff averred that “I participated in the NS vocational services back in 2015
and was informed that I had to relinquish my seniority rights as an engineer. I
want to return to work as an engineer with my seniority dating back to 1988.”
ECF 42-5.
50. Other than calling Norfolk Southern’s Employee Resource center (“ERC”) one
time to get his password reset, Plaintiff did not communicate with NSHS
regarding his return to work after receiving the October 16, 2020 letter. See
ECF 40-1, Deposition Transcript of J. Chadwick, at pp. 144:10-20.
51. Dr. Litow testified that she did not recall speaking with or writing to Dr. Majeed
to request clarification of any of Plaintiff’s conditions or restrictions. ECF 40-
28 at p. 38. Nor did Dr. Litow recall whether Ms. Euell had communicated with
Dr. Majeed. Id. at 39.
52. Dr. Litow testified that she is not a neurologist and did not consult with a
neurologist prior to writing her October 16, 2020 letter. Id. at 49-50.
53. Dr. Litow testified that she could have requested that Plaintiff be evaluated by
an independent neurologist but only if Plaintiff had provided the requested
information in the October 16, 2020 letter. Id. at 39-40.
54. Ms. Euell testified that the medical director/chief medical officer (Dr. Litow)
had the authority to have requested a medical specialty evaluation, functional
capacity exam or field test of Plaintiff. ECF 40-5 pp. 64-66.
55. Plaintiff admitted he did not request or need an accommodation. SOF at ¶
28; See ECF 40-1, Deposition Transcript of J. Chadwick, at pp. 131:11-
132:23.
56. Plaintiff admitted that Dr. Majeed did not request an accommodation on his
behalf. SOF at ¶ 29; See ECF 40-1, Deposition Transcript of J. Chadwick, at
pp. 131:11-132:23.
57. Ms. Euell testified that in 2020, Norfolk Southern was operating with a two-
member crew consisting of an engineer and a conductor. ECF 40-5, p. 52.
58. NSHS notified Plaintiff’s supervisor, Shaun McCoy, that Plaintiff’s treating
physician had imposed the following work restriction on Plaintiff: “Patient is
okay to operate heavy machinery as long as another employee accompanies
him in case of an emergency.” See ECF 40-4, Deposition Transcript of S.
McCoy, at pp. 45:10-46:1; ECF 40-5, Deposition Transcript of A. Euell, at pp.
46:4-12; 78:10-79:2; ECF 40-29, at NORFOLK_00000170-173.
59. Upon reviewing the work restriction, McCoy notified NSHS that as “an
engineer it isn’t possible to have another employee on the locomotive with
[Plaintiff] at all times. So I cannot reasonably accommodate his request.” See
ECF 40-29, at NORFOLK_00000170-173.
60. McCoy testified that his words “at all times” came from Dr. Majeed’s letter of
September 25, 2020. ECF 40-4, at p. 45.
61. Nowhere in Dr. Majeed’s September 25, 2020 letter did she require “another
person in the locomotive” and/or “at all times.” Dr. Litow testified that the words
“another person in the locomotive” do not appear in Dr. Majeed’s letter of
September 25, 2020. ECF 40-28 at 31.
62. Only a certified engineer can operate a locomotive. See ECF. 40-4, Deposition
Transcript of S. McCoy, at pp. 33:12-13. A conductor can operate a locomotive
provided the conductor is a certified locomotive engineer. Id.
63. All conductors, including those who are not certified locomotive engineers
have training and are authorized to stop a locomotive if there is an emergency.
See ECF 40-4, Deposition Transcript of S. McCoy, at pp. 37:18-38:2.
64. In the NSHS Case Management Notes dated October 28, 2020, Dr. Litow
wrote: “[Plaintiff] has provided records already on file, [Plaintiff] has been
medically DQ due to seizure disorder unable to accommodate MD request for
‘another person in locomotive’ as noted.” ECF 40-14, p.2.
65. In the Case Management Notes dated September 28, 2020, Ms.
Euell wrote:
Request case review for LE EE with history of seizures.
Neurologist recommended that another employee
accompany him in the event of an emergency. Should email
be sent WRT accommodation or clear based on history of 2-
person T & E crews? Thanks.
ECF 40-14, p. 5.
66. In the Case Management Notes dated September 28, 2020, Ms. Euell wrote:
Reviewed letter dated 09/25/2020 from Dr. Warqaa Majeed,
advising in part that EE may RTW to continue previous duties
and that EE is okay to operate heavy machinery as long as
another employee accompanies him in case of an emergency.
Case deferred for Dr. Litow’s review.
ECF 40-14, p. 4.
67. Ms. Euell testified that this entry meant that “[b]ased upon the restriction that
another person always accompany him-there’s a two-person crew. Would he
be able to be cleared to return to work based on the fact that there is someone
in the cab with him?” ECF 40-5, pp. 56-57. Ms. Euell testified that Dr. Litow did
not respond to this question through MCM. Id. at 54. Ms. Euell further testified
that she could not recall whether Dr. Litow responded to this question in
another format. Id. at 58.
68. The Railroad Retirement Act provides disability annuities for railroaders who
become totally disabled or occupationally disabled. See Disability Annuities
for Railroad Employees, SOF at ¶ 30;
https://www.rrb.gov/Newsroom/Newsreleases/DisabilityAnnuitiesforRailroadE
mployees.
69. Plaintiff applied for disability benefits through the Railroad Retirement Board
(“RRB”) claiming he had been medically disqualified, that “Norfolk Southern
is requiring a 10- year seizure free period before returning to work,” and “NS
would not let [him] return.” SOF ¶ at 31; ECF 1, at pp. 123:8-12, 126:6-8;
ECF 30, Plaintiff’s Application for Disabilities to RRB, at Plaintiff’s RFPOD
000182-193.
Plaintiff also submitted the expert report of Kevin L. Trangle, M.D., MBA. of Kevin
Trangle & Associates in Mayfield Heights, Ohio. Dr. Trangle conducted an independent
review of Plaintiff’s medical records for the purpose of determining the Plaintiff’s fitness-
for-service. ECF 41-1. Dr. Trangle did not see or examine the Plaintiff. Dr. Trangle
concluded that:
The removal of Mr. Chadwick from active duty by NS Health
Services on 07/28/2020 was completely unwarranted, inappropriate
and inconsistent with professional standards of care. At that time,
he had been completely seizure-free on a stable treatment regimen
for more than 5 years since his last seizure. He was previously
allowed back to work in 2017, just two (2) years after his last seizure
based on the NS medical guidelines.
NS Health Services retroactively applied a new policy which
required him to be seizure-free for 10 years. This was not based on
any persuasive medical literature or accepted medical standards,
but instead, it appears this new policy was based on FMCSA
guidelines which even at the time of the NS decision, had been
abandoned. These guidelines were never intended for regulatory
purposes in the railroad industry.
Of importance, NS applied this new policy to Mr. Chadwick without
consulting his neurologist. Despite the seemingly inconsistent
opinion of Mr. Chadwick’s treating neurologist with respect to
necessary work restrictions, NS Health Services failed to directly
communicate with his neurologist to clarify and discuss their actual
necessity.
An independent review of the applicable literature and consultation
with a specialist would have established that Mr. Chadwick required
no specific work restrictions. Even if the noted restrictions were
accepted as necessary, the evidence establishes that NS could
have more than likely made reasonable accommodations.
Of note, these exemption criteria were based on the 2007
recommendations of the FMCSA’s Medical Expert Panel which in
turn were based on outdated medical literature. This is the very
reason the FMCSA is currently developing new guidelines. Lastly,
NS Health Services erred in removing Mr. Chadwick from his
position due to a congenital condition affecting his left eye. This
condition was responsible for a stable visual status which neither
precluded Mr. Chadwick from safely performing his job duties nor
required any specific accommodations.
ECF 42-1 at pp. 14-15.
Plaintiff also submitted the expert report of Michael Devereaux, M.D., F.A.C.P., a
Professor of Neurology at University Hospitals Cleveland Medical Center/Case Western
Reserve University and a member of the Epilepsy Center faculty of the Department of
Neurology at the Neurological Institute of University Hospitals Cleveland Medical
Center. Dr. Devereaux was asked to comment on the likelihood of the Plaintiff
continuing to be seizure free in order for him to return to his job as a railroad engineer.
ECF 41-2. Dr. Devereaux did not see or examine the Plaintiff. Dr. Devereaux concluded
that:
It is easy to state that his risk of recurrent seizures after five
(5) years of being seizure free, when he was removed from
duty, was at that time extremely low. He had been doing his
usual job for over three (3) years at that point, when the
company Norfolk Southern (NS) “discovered his history of a
remote seizure, and even though he had been cleared for full
duty three years earlier, now reversed its course of action.
And in essence, imposed new such restrictions so that he was
not employable. I would estimate his risk at being less than
one percent after the initial five (5) years of being seizure free,
which is the point of time he was removed from work. Now
almost eight (8) years later, the course of his health status has
borne out the low likelihood of having a seizure then in 2020
and into the future.
*********
Every state in the Union allows an individual with epilepsy to
return to driving when seizure free, for as little as 3 months in
a number of states, and, no more than a year in other states.
Recognizing the fact that being an engineer of a locomotive
entails a potentially higher risk of danger to oneself,
coworkers and public, nonetheless, the medical situation and
the facts enumerated, the diagnosis and clinical findings, all
support my professional opinion that [Plaintiff] could have
continued to work and there was never a need to remove him
from work in October 2020.
ECF 42-2.
DISCUSSION
The Court first notes that with respect to Count Two which asserts a claim
against Norfolk Southern under the ADA for failure to make a reasonable
accommodation, the parties have stipulated that Plaintiff admitted during his deposition
that he did not ask for or need an accommodation from Norfolk Southern. ECF 40; SOF
at ¶ 28. The parties further stipulated that Plaintiff admitted that Dr. Majeed did not
request an accommodation on Plaintiff’s behalf. ECF 40; SOF at ¶ 29. In addition, the
Court notes that Plaintiff did not respond to Norfolk Southern’s motion for summary
judgment on Count Two. For these reasons, the Court will enter judgment in favor of
Norfolk Southern and against Plaintiff on Count Two.
The Court now turns to Plaintiff’s sole remaining claim (Count One) that Norfolk
Southern discriminated against him in violation of the ADA, RA and PHRA based on a
medical disqualification.1
Despite Dr. Litow’s notation in the NSHS Case Management Notes dated
October 28, 2020, that Plaintiff “has been medically DQ due to seizure disorder,” the
record clearly reveals that Plaintiff was never actually medically disqualified from his
position as a locomotive engineer. In her letter of July 27, 2020 to Plaintiff, Dr. Litow
specifically wrote that “[y]our work status is Medical Hold until we are able to determine
your fitness for service.” ECF 40-18, p. 1. Plaintiff acknowledged that the July 27, 2020
letter so stated. See ECF 40-1, Deposition Transcript of J. Chadwick, at p. 79:20-23.
Dr. Litow further specifically informed Plaintiff in her October 16, 2020 letter that
although “you are not currently cleared to return to duty in [his] safety-sensitive job as
Engineer,” he was not being dismissed from service, “as this medical restriction from
active service can be removed if your condition improves to the extent that you can
safely return to work in your present job.” ECF 40-28 at p. 1. Plaintiff himself admitted
that Dr. Litow’s October 16, 2020 letter did not say he “could not return to work”. See
ECF 40-1, Deposition Transcript of J. Chadwick, at pp. 126:20-128:1; 153:10-154:18.
Indeed, the parties have stipulated that Plaintiff’s Career Service Record as of
September 21, 2021 indicated he was on a “medical hold.” ECF 40. SOF at ¶ 27.
Finally, Article 37(B) p. 164 of Plaintiff’s CBA provides that “if an employee is medically
disqualified the Chief Surgeon will promptly notify the employee, in writing, setting forth
both the medical diagnosis of the employee’s condition and the Company’s minimum
1 Claims brought under the ADA, RA and PHRA are analyzed under identical standards for liability.
, 989 F.3d 226, 229 (3d Cir. 2021); , 602 F.3d 495, 499 n.3 (3d Cir. 2010).
medical standard which that condition does not meet.” Ex. 32, at Art. 37(B) p. 164. The
record in this case is devoid of any such notification. For these reasons, the Court finds
that there is no issue of material fact as to whether Plaintiff was medically disqualified.
He clearly was not and instead was placed on “Medical Hold”, pending receipt of further
requested medical documentation as outlined in the July 27, 2020 and October 16,
2020 letters sent to Plaintiff from NSFS.
In addition, there is no dispute that Norfolk Southern had every right to request
additional medical documentation concerning Plaintiff’s distance vision and history of
seizures. The parties have stipulated that in accordance with FRA regulations,
engineers must undergo periodic medical reviews to maintain their certification. SOF at
¶13. See 49 CFR §240.121; Ex. 16, April 23, 2020 Email to EEOC, at
NORFOLK_00000085. The parties have further stipulated that in order to be certified as
a locomotive engineer, engineers are required to complete vision and hearing
screenings every three years. The regulations provide that "no railroad shall certify a
person as a qualified locomotive engineer for an interval of more than 36 months.” SOF
at ¶ 14; 49 CFR §240.217(c)(1); see also 49 CFR §240.121.
Indeed, Norfolk Southern requires engineers to complete a Periodic Health
Assessment every three years which tests hearing levels, and vision to ensure the
engineer meets the minimum safety requirements. SOF at 16. The Periodic Health
Assessment also includes a questionnaire to report any medical conditions and
prescribed medications, and a check of vitals. Id. Since Plaintiff had last undergone a
Periodic Health Assessment in 2017, Plaintiff was due for another one in 2020. Plaintiff
underwent his Periodic Health Assessment on July 20, 2020. SOF at ¶ 18. The July 20,
2020 vision test within the Periodic Health Assessment revealed that Plaintiff’s vision
“did not meet the regulatory standard for an engineer.” SOF at ¶19. During the July 20,
2020 Periodic Health Assessment, Plaintiff also “reported prescription medication used
[to] treat his seizure disorder on his health questionnaire.” SOF at ¶ 20.
To determine Plaintiff’s fitness for service as of 2020, NSHS, in a July 27, 2020
letter to Plaintiff, requested Plaintiff provide up-to-date records from his eye doctor
confirming his “best corrected distance vision in each eye” and also requested up to
date medical records relating to his disclosure of seizure medication on the
questionnaire. Specifically, NSHS requested: “Office visit notes from treating
neurologist. Office visit note or written statement from treating neurologist addressing:
date of last known seizure; treatment, including prescribed medication and any
significant safety-impairing medication side effects[he] may be experiencing; risk of
experiencing a recurrent seizure within the next six (6) months to one year;
recommended work restrictions and/or accommodations, and if any, their anticipated
duration; if hospitalized, the “hospital admission summary” and “physician’s discharge
summary.” SOF at ¶ 22.
In response, on August 5, 2020, Dr. Majeed faxed to NSHS office visit notes from
a May 18, 2020 telehealth appointment with Plaintiff. Since this was a telehealth visit,
Dr. Majeed did not physically examine the Plaintiff. In her telehealth visit notes, Dr.
Majeed noted that Plaintiff “had a history of complex partial seizure with secondary
generalization breakthrough seizure for more than 5 years, last MRI of brain no acute
pathology postsurgical changes noted due to history of meningloma removal.
Meningloma discovered when the patient had a seizure status post meningloma
removal currently on Keppra and Vimpat.” ECF 40-20 at p. 1. Under Assessment/Plan,
Dr. Majeed wrote “[c]omplex partial seizure continue on Vimpat 150 mg twice a day as
directed continue on Keppra 500 mg in the morning 500 mg at noon time and 1000 mg
at bedtime as directed we will obtain Keppra level and will obtain screening blood work.”
Id. at p. 2. Dr. Majeed further noted that Plaintiff’s mental status was “alert, oriented to
person, place, time and situation.” Id. at p. 1.
However, the telehealth notes did not provide the information that was
specifically requested in its July 27, 2020 letter, including the date of Plaintiff’s last
known seizure, any safety-impairing side effects Plaintiff may have experienced from his
medication, and the likelihood of a recurrent seizure within six months to one year. ECF
40-20. Instead, in a faxed letter that accompanied the telehealth notes, Dr. Majeed
wrote that “[Plaintiff] is a current patient in the neurology office being seen for his history
of seizures. His seizures are controlled with the medications Keppra and Vimpat, and it
has been more than five years since his last event. Recommended work restrictions for
him include to not operate heavy machinery and to avoid working at heights or on
ladders.” See ECF 40-21, August 5, 2020 Letter from Dr. Majeed at
NORFOLK_00000361. On August 7, 2020, Ms. Euell, called Plaintiff leaving a voicemail
acknowledging receipt of the telehealth visit note and the August 5, 2020 restriction
from operating heavy machinery and inquiring whether this new restriction was in error.
SOF at ¶ 24.
Instead of complying with the requests for additional information contained in
NSHS’s July 27, 2020 letter, Plaintiff, on August 11, 2020, called Dr. Majeed’s office and
asked her to “reword his work restrictions.” SOF at ¶ 25; ECF 40-22, Dr. Majeed Internal
Office Correspondence, at Plaintiff’s RFPOD 000064-65;ECF 40-1, Deposition
Transcript of J. Chadwick, at pp. 86:11-14.
Dr. Majeed then sent NSHS a serious of follow-up letters in which she essentially
stated in various forms that it was “ok” for Plaintiff to return to work as long as another
employee accompanied him in case of emergency. ECF 40-23, 40-24, 40-25 and 40-26.
As a result of these letters, Dr. Litow advised Plaintiff in her October 16, 2020 letter that:
To evaluate your ability to return to work we will need the following:
Seizure Disorder from August 15, 2020 forward
• Office visit notes from treating neurologist.
• Office visit note or written statement from treating neurologist addressing:
o date of last known seizure
o treatment, including prescribed medication and any significant safety-
impairing medication side effects that you may be experiencing
o risk of experiencing a recurrent seizure within the next six (6) months to
one year.
o recommended work restrictions and/or accommodations, and if any,
their anticipated duration
• If hospitalized, the “hospital admission summary” and “physician’s discharge
summary”. Please request these documents from the Medical Records
Department of the hospital. It is not necessary to provide all of the hospitalization
records.
• Diagnostic test results, including EEG report and MRI
• Lab results (including medication levels if applicable)
ECF 40-27 (emphasis in original); ECF 40-1, Deposition Transcript of J. Chadwick, at
pp. 115:10-117:5, 117:9-22, 118:3-119:21, 126:20-128:1; ECF 40-28, Deposition
Transcript of Francesca Litow, at pp. 42:8-43:14; 45:1-46:12; 46:25-47:11.
Yet, the record is undisputed that Plaintiff did not provide the records requested
by NSHS in the October 16, 2020 letter that would allow NSHS to determine if he could
return to work. ECF 40-28, Deposition Transcript of F. Litow, at pp. 44:16-22. And
Plaintiff himself admitted Norfolk Southern is entitled to ask for additional information to
determine his fitness-for-service relating to his distance vision and his seizure disorder
and that asking for such information is not discriminatory. ECF 40-1, Deposition
Transcript of J. Chadwick, at pp. 116:23-117:5.
Under the ADA, employers are forbidden from "mak[ing] inquiries of an employee
as to whether such employee is an individual with a disability or as to the nature or
severity of the disability." 42 U.S.C. § 12112(d)(4)(A). Such inquiries are allowed,
however, if "shown to be job-related and consistent with business necessity." Id.; see
also id. § 12112(d)(4)(B) (permitting employers to "make inquiries into the ability of an
employee to perform job-related functions").
Norfolk Southern's inquiries into Plaintiff’s distance vision and seizure disorder
were clearly job-related and consistent with business necessity. Although Norfolk
Southern resolved its concern with Plaintiff’s distance vision after receiving information
from Plaintiff’s ophthalmologist, each of Norfolk Southern's specific inquiries into
Plaintiff’s seizure history in 2020—which included request for more information about
the date of Plaintiff’s last known seizure, whether Plaintiff experienced any side effects
from his medication, and the likelihood of a recurrent seizure—were related to Plaintiff’s
safety-sensitive position as a locomotive engineer. Indeed, it was Plaintiff’s own
neurologist, Dr. Majeed, who started the ball rolling in her August 5, 2020 letter by
clearing Plaintiff to return to work with the contingency that he should not operate heavy
machinery or climb ladders independently. ECF 40-21. The information sought is clearly
consistent with the necessity of ensuring that employees of Norfolk Southern with a
potentially incapacitating or performance impairing medical condition are prohibited from
performing duties of a safety-sensitive position until it is determined that the employee
can work safely. This is especially true where, as here, NSHS was without any updated
medical information on Plaintiff since 2017. Given its responsibility for public safety,
Norfolk Southern was more than justified in requesting enough information for it to
competently decide whether it was safe for Plaintiff to operate one of its locomotives.
Even more significant is the fact that Norfolk Southern’s requests for the additional
medical documentation were required by federal regulation. “An employer should not be
required to defend its adherence to a binding federal safety regulation, even when that
regulation conflicts with the goals of the ADA.” Bey v. City of New York, 999 F. 3d 157
(2nd Cir. 2021).
Plaintiff argues that both Dr. Trangle and Dr. Devereaux established that based
on their review of the Plaintiff’s records there was not a likelihood that Plaintiff would
suffer a recurrent seizure and therefore there was no need for Norfolk Southern to
request additional documentation about Plaintiff’s seizure condition to satisfy safety
concerns or federal requirements. “But expert testimony is not sufficient to create an
issue of triable fact when a course of action is required by federal regulation.” Coffey v.
Norfolk Southern Railway Co. 23 F. 4th 332, 341 (4th Cir. 2022). As discussed, supra,
Norfolk Southern's inquiries were compelled by binding FRA regulation, and therefore
there can be no violation of the ADA, the Rehabilitation Act or the PHRA.
Plaintiff also argues that Dr. Litow referenced the incorrect standard when she
wrote in her October 27, 2020 letter to Plaintiff that “[a]s information, evidence-based
guidance related to commercial drivers recommends a 10-year seizure free period for
those diagnosed with seizure disorders.” ECF 40-27. According to Plaintiff, Dr. Litow
referenced an outdated standard for commercial drivers and not the current standard for
locomotive engineers. Even assuming, arguendo, that Plaintiff is correct, the fact
remains that there is no evidence that Dr. Litow’s use of the 10-year standard played
any role in her decision to place Plaintiff on “Medical Hold.” By her own language (“as
information”, Dr. Litow was only advising Plaintiff of the 10-year standard, not basing her
decision on that standard. To the contrary, Dr. Litow’s decision to place Plaintiff on
“Medical Hold” was clearly the result of Plaintiff’s July 20, 2020 Periodic Health
Assessment and Dr. Majeed’s August 5, 2020 letter which placed a new contingency on
Plaintiff returning to work. Therefore, Dr. Litow would have still needed the additional
requested information from Plaintiff no matter if the standard was two years, three years
or 10 years.
Since Plaintiff was never actually terminated or medically disqualified by Norfolk
Southern and instead placed on a medical hold, the Court will deny Norfolk Southern’s
motion for summary judgment without prejudice. Plaintiff will be allowed 60 days from
the date of this Order to supply NSHS with the requested medical documentation in its
letters of July 27, 2020 and October 16, 2020. If Plaintiff fails to comply, Norfolk
Southern will be permitted to renew its motion for summary judgment. If Plaintiff does
comply, the Court trusts that NSHS will conduct a thorough review of the medical
evidence and issue a fair and prompt decision on whether Plaintiff may or may not
return to his job as a locomotive engineer. If Plaintiff is not satisfied with the decision, he
may proceed further with this suit to the extent he can prove Norfolk Southern acted in a
discriminatory manner.