DeFries v. Union Pacific Railroad Company

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

NICHOLAS DeFRIES, Case No. 3:21-cv-205-SI

Plaintiff, OPINION AND ORDER

v.

UNION PACIFIC RAILROAD

COMPANY,

Defendant.

Anthony S. Petru and Gavin Barney, HILDEBRAND MCLEOD & NELSON, LLP, 5335 College

Avenue, Suite 5A, Oakland, CA 94618, and James H. Kaster and Lucas J. Kaster, NICHOLS

KASTER, PLLP, 4700 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402. Of Attorneys

for Plaintiff.

William H. Walsh, COZEN O’CONNOR, Suite 1900, 999 Third Avenue Seattle, WA 98104, and

Bobbi Britton Tucker, COZEN O’CONNOR, One Oxford Centre, 41st Floor, 301 Grant Street,

Pittsburgh, PA 15219. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Plaintiff Nicholas DeFries (“DeFries”) worked as a locomotive conductor for Defendant

Union Pacific Railroad Company (“Union Pacific”) from July 2004 through March 2018.

DeFries has a color vision deficiency, which he contends is minor, does not limit any major life

activity, and does not prevent him from performing his essential job functions, including

discerning colors in railroad wayside signals. In March 2018, DeFries underwent standard color

vision acuity testing and failed the scientific “Ishihara” 14-plate color vision test. He was

temporarily removed from service in March 2018. In May 2018, he took Union Pacific’s

proprietary secondary color vision field test (“CVFT”), the “Light Cannon” test, and failed that

test. After appealing his secondary test due to testing conditions, he retook the Light Cannon in

July 2018 and again failed that test. Union Pacific then permanently removed DeFries from

service as a locomotive conductor.

DeFries brings claims alleging disparate treatment and disparate impact under the

Americans with Disabilities Act (“ADA”). DeFries contends that Union Pacific “regarded”

DeFries as disabled. He asserts that Union Pacific violated the ADA by using its proprietary

CVFT, the Light Cannon, that was facially discriminatory against DeFries because of his

perceived color vision disability and that served to screen out persons like him, with perceived

color vision deficits. Union Pacific asserts as affirmative defenses business necessity, direct

threat, and the Albertson’s doctrine, based on Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555

(1999).

Now before the Court are Union Pacific’s motions to dismiss based on lack of subject

matter jurisdiction and for summary judgment. Union Pacific argues in its motion to dismiss that

DeFries’s ADA claim implicates the Hobbs Act, and thus jurisdiction is appropriate only in the

circuit court of appeals, after exhausting administrative remedies. DeFries responds that his

claims of disability discrimination are properly before this Court. In its motion for summary

judgment, Union Pacific argues that DeFries cannot show that he is a qualified individual under

the ADA, that disparate impact claims may not be brought in a “regarded as” claim under the

ADA, and that Union Pacific prevails on all three of its affirmative defenses as a matter of law.1

For the reasons explained below, the Court denies Union Pacific’s motions.

1 Union Pacific also raises in its supplemental summary judgment brief, which the Court

permitted after this case was remanded, the same jurisdictional argument it raises in its motion to

STANDARDS

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Union Pacific styles its motion as one under Rule 12(h)(3) of the Federal Rules of Civil

Procedure, distinguishing such a motion from one under Rule 12(b)(1) because a Rule 12(h)(3)

can be brought at any time and need not be responsive to any pleading. Defendant

misunderstands Rule 12(b)(1) motions. The Ninth Circuit has explained that “[a] Rule 12(b)(1)

motion to dismiss for lack of subject matter jurisdiction . . . may be made at any time.” In re

Apple iPhone Antitrust Litig., 846 F.3d 313, 319 (9th Cir. 2017) (citing Rules 12(b)(1)

and 12(h)(3)), aff’d sub nom. Apple Inc. v. Pepper, 587 U.S. 273 (2019). “[T]he deadline for

making a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is prolonged by

Rule 12(h)(3) . . . .” Wood v. City of San Diego, 678 F.3d 1075, 1082 (9th Cir. 2012). Thus, the

Court construes Union Pacific’s motion as one under Rule 12(b)(1) of the Federal Rules of Civil

Procedure, as extended by Rule 12(h)(3).

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either

“facial” or “factual.” See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A

facial attack on subject matter jurisdiction is based on the assertion that the allegations contained

in the complaint are insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is

factual where ‘the challenger disputes the truth of the allegations that, by themselves, would

otherwise invoke federal jurisdiction.’” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013)

(quoting Safe Air for Everyone, 373 F.3d at 1039)).

dismiss. The Court, however, addresses that argument in the context of Union Pacific’s later-

filed motion to dismiss.

Union Pacific brings a factual challenge to the Court’s subject matter jurisdiction. When

a defendant factually challenges the plaintiff’s assertion of jurisdiction, a court does not presume

the truthfulness of the plaintiff’s allegations and may consider evidence extrinsic to the

complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Robinson v.

United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for Everyone, 373 F.3d at 1039. A

factual challenge “can attack the substance of a complaint’s jurisdictional allegations despite

their formal sufficiency.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (quotation

marks omitted).

B. The Hobbs Act

Under the Administrative Orders Review Act—also known as the Hobbs Act2—the court

of appeals, in all jurisdictions except for the Federal Circuit, has exclusive jurisdiction to “enjoin,

set aside, suspend . . . or to determine the validity of . . . final agency actions described in

section 20114(c) of title 49.” 28 U.S.C. § 2342(7). Further, “a proceeding to review a final action

of the Secretary of Transportation under this part or, as applicable to railroad safety, chapter 51

or 57 of this title shall be brought in the appropriate court of appeals as provided in chapter 158

of title 28.” 49 U.S.C. § 20114(c).

C. Motion for Summary Judgment

A party is entitled to 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). The moving party has the burden of establishing the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden,

2 This Hobbs Act is separate from a different Hobbs Act that deals with robbery and

extortion offenses. See 18 U.S.C. § 1951.

“the moving party must either produce evidence negating an essential element of the nonmoving

party’s claim or defense or show that the nonmoving party does not have enough evidence of an

essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. v.

Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000); see also Devereaux v. Abbey, 263 F.3d 1070,

1076 (9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving

party need only point out ‘that there is an absence of evidence to support the nonmoving party’s

case.’” (quoting Celotex, 477 U.S. at 325)). “Where the moving party will have the burden of

proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of

fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509

F.3d 978, 984 (9th Cir. 2007). “If the moving party meets its initial burden, the non-moving

party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that

there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986)).

The Court must view the evidence in the light most favorable to the non-movant and

draw all reasonable inferences in the non-movant’s favor. Clicks Billiards, Inc. v. Sixshooters,

Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing

of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge . . . ruling on a motion for summary judgment,” the “mere existence of a scintilla

of evidence in support of the plaintiff’s position [is] insufficient.” Anderson, 477 U.S. at 252,

255. “Where the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586

(2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

BACKGROUND

A. Federal Regulations

The Federal Railroad Safety Act (“FRSA”) ensures that “[l]aws, regulations, and orders

related to railroad safety and . . . railroad security shall be nationally uniform to the extent

practicable.” 49 U.S.C. § 20106(a)(1). To that end, the Department of Transportation (“DOT”),

through the Federal Railroad Administration (“FRA”) has promulgated comprehensive

regulations to ensure that only qualified individuals operate as train conductors.3 49 C.F.R.

§§ 242.1-242.511. These FRA regulations include provisions for locomotive conductor

certification, recertification, and denial of certification. “The FRA does not actively participate in

engineer [and conductor] testing or certification, but administers the regulation through approval

and monitoring of individual railroads’ programs, including their training and testing regimens.”

Carpenter v. Mineta, 432 F.3d 1029, 1031 (9th Cir. 2005).

The certification program for each railroad must include a procedure for evaluating vision

for conductors that conforms with 49 C.F.R. § 242.117. The FRA sets minimum thresholds for

visual acuity and states, in relevant part: “Except as provided in paragraph (j) of this section,

each person shall have visual acuity that meets or exceeds the following thresholds: . . . (3) The

ability to recognize and distinguish between the colors of railroad signals as demonstrated by

successfully completing one of the tests in appendix D to this part.” 49 C.F.R. § 242.117(h).

Subsection (j), in turn, provides:

A person not meeting the thresholds in paragraphs (h) and (i) of

this section shall, upon request, be subject to further medical

evaluation by a railroad’s medical examiner to determine that

3 Union Pacific cites regulations governing train engineers in some of its briefing (49

C.F.R. §§ 240.1, et seq. and Appendix F). Because DeFries is a train conductor, however, the

Court cites the similar regulations governing train conductors (49 C.F.R. §§ 242.1, et seq. and

Appendix D).

person’s ability to safely perform as a conductor. In accordance

with the guidance prescribed in Appendix D to this part, a person

is entitled to one retest without making any showing and to another

retest if the person provides evidence substantiating that

circumstances have changed since the last test to the extent that the

person could now safely perform as a conductor. The railroad shall

provide its medical examiner with a copy of this part, including all

appendices. If, after consultation with a railroad officer, the

medical examiner concludes that, despite not meeting the

threshold(s) in paragraphs (h) and (i) of this section, the person has

the ability to safely perform as a conductor, the person may be

certified as a conductor and such certification conditioned on any

special restrictions the medical examiner determines in writing to

be necessary.

Id. § 242.117(j).

Appendix D specifies:

(2) In determining whether a person has the visual acuity that

meets or exceeds the requirements of this part, the following

testing protocols are deemed acceptable testing methods for

determining whether a person has the ability to recognize and

distinguish among the colors used as signals in the railroad

industry. The acceptable test methods are shown in the left hand

column and the criteria that should be employed to determine

whether a person has failed the particular testing protocol are

shown in the right hand column. [Listing eight Pseudoisochromatic

Plate Tests and four Multifunction Vision Tests, and their failure

criteria.]

* * *

(4) An examinee who fails to meet the criteria in the chart, may be

further evaluated as determined by the railroad’s medical

examiner. Ophthalmologic referral, field testing, or other practical

color testing may be utilized depending on the experience of the

examinee. The railroad’s medical examiner will review all

pertinent information and, under some circumstances, may restrict

an examinee who does not meet the criteria for serving as a

conductor at night, during adverse weather conditions or under

other circumstances. The intent of § 242.117(j) is not to provide an

examinee with the right to make an infinite number of requests for

further evaluation, but to provide an examinee with at least one

opportunity to prove that a hearing or vision test failure does not

mean the examinee cannot safely perform as a conductor.

Appropriate further medical evaluation could include providing

another approved scientific screening test or a field test. All

railroads should retain the discretion to limit the number of retests

that an examinee can request but any cap placed on the number of

retests should not limit retesting when changed circumstances

would make such retesting appropriate. Changed circumstances

would most likely occur if the examinee’s medical condition has

improved in some way or if technology has advanced to the extent

that it arguably could compensate for a hearing or vision

deficiency.

Id. App. D.

B. Union Pacific’s Color Vision Testing

For its primary color vision test, Union Pacific uses the Ishihara 14-plate test, one of the

pseudoisochromatic plate tests listed in Appendix D. For its secondary test, Union Pacific uses a

CVFT. This is a proprietary field test, developed by Union Pacific, as per the FRA.

Union Pacific had a CVFT that it had used since 1999, using actual wayside signals. See

ECF 50-2 at 31. This test involved Union Pacific presenting conductors with ten wayside signal

configurations in a preset order. Id. at 30-31. In June 2012, two Union Pacific freight trains

collided head-on in Goodwell, Oklahoma, killing two engineers and one conductor, derailing

five locomotives and 32 cars, and causing about $14.8 million in damages. See, e.g., id. at 8.

Ultimately, the National Transportation Safety Board (“NTSB”) concluded that the accident was

in part because of an engineer who had color vision deficiencies that had grown over time and

were not sufficiently detected by Union Pacific’s then-CVFT. Id. at 52-53. The engineer had

failed the Ishihara test but passed Union Pacific’s then-CVFT. The NTSB determined that Union

Pacific’s CVFT at the time “fails to ensure that [Union Pacific] employees have adequate color

perception to perform in safety-sensitive positions.” Id. at 31. The NTSB recommended that

Union Pacific “replace its color vision field test with a test that has established and acceptable

levels of validity, reliability, and comparability to ensure that certified employees in safety-

sensitive positions have sufficient color discrimination to perform safely.” Id.

The NTSB also noted that federal regulations lacked specificity with respect to the

railroads’ secondary field testing and concluded allowing that discretion created safety risks. Id.

at 32. The NTSB recommended that the FRA define what constitutes a “valid, reliable, and

comparable field test procedure for assessing the color discrimination capabilities of employees

in safety-sensitive positions.” Id.

In response, the FRA issued an “interim interpretation to clarify provisions in its

locomotive engineer and conductor qualification and certification regulations with respect to

vision standards and testing.” Best Practices for Designing Vision Field Tests for Locomotive

Engineers or Conductors, 80 Fed. Reg. 73122, 73122 (Nov. 24, 2015) (“Best Practices”). The

Best Practices provide “guidance for designing valid, reliable, and comparable vision field tests

for assessing whether persons who do not meet those thresholds can perform safely as

locomotive engineers and conductors.” Id. This guidance reaffirms that FRA “rules grant railroad

medical examiners discretion in determining the methods and procedures the medical examiner

will use to further evaluate persons who do not meet the vision thresholds in 49 CFR 240.121(c)

and 242.117(h).” Id. at 73124. The Best Practices then explains that field tests are different from

scientific tests, such as the Ishihara. Id. at 73124-25. Scientific tests are validated through

scientific rigor, peer review, and the like. Id. at 73124. Field tests should be “valid, reliable, and

comparable” and must “reasonably match actual operating or working conditions.” Id. For

validity, “a color vision field test is valid to the degree that it assesses whether a person can

recognize and distinguish between colors of the types of railroad signals in the yard or on all

portions of railroad systems on which the person must perform safely.” Id. at 73125. This factor

essentially tests “[t]he degree to which a field test’s conditions match actual operating

conditions.” Id. “Reliability means the degree of reproducibility of the test results. . . .

Comparability means the testing procedures are fairly administered and the test results are

uniformly recorded.” Id.

After the Goodwell accident, Union Pacific developed a new CVFT, the Light Cannon.

Union Pacific began developing the Light Cannon test in 2015. The original device contained

four eight-inch LED lights, with a row of two on each opposing side, that each flashed one of

four colors—red, yellow, green, and white—for five seconds each. See ECF 52-8. At the request

of Union Pacific, this device and testing protocol was reviewed and evaluated by Drs. Jeff Rabin

and Douglas J. Ivan in October 2015. Id. Drs. Rabin and Ivan issued their findings in

January 2016. Id. They recommended several changes, including reducing the time shown for

each color to two seconds, automating the exposure time, increasing the distance between the

examinee and the device to one-half mile, changing the device from rows of two on two sides to

a rotatable cube with one light on each of four sides, and conducting human studies to validate

the efficacy of the test. Id.

The report by Drs. Rabin and Ivan also stated that the test had “a number of critical short

comings in its current design and within the proposed test administrative procedures.” Id. at 4.

The report “strongly recommended” that before relying on “any CVFT” and “particularly” the

Light Cannon test, it “undergo proper scientific and operational validation studies.” Id. at 5. This

is because “practical field color vision tests are problematic and not recommended.” Id.

Union Pacific implemented several of the proposed changes. It changed the design to a

rotating cube with one color on each side. Holland Dep. Tr. 35:9-37:10 (ECF 52-5 at 11-13).4 It

reduced the exposure time to three seconds and automated the exposure. Id.; see also Doerr Dep.

4 This is the deposition of Union Pacific’s medical examiner, Dr. John Holland.

Tr. 93:18-94:18 (ECF 52-6 at 8-9). Union Pacific did not, however conduct any human studies or

perform any other validation of the Light Cannon. It implemented the test in April 2016.

In late October 2016, Union Pacific hired Drs. Rabin and Ivan to review the Light

Cannon, in part because of “formal and informal complaints lodged by Union Pacific employees

who have failed the Color Vision Field Test.” ECF 52-11, 52-12. This review, however, was

minimal. Dr. Ivan testified that it involved creating an outline for an eventual final report,

including preparing for the input of data, such as luminescence measurements, but did not result

in any written report at the time. See Ivan Dep. Tr. 128:10-24 (ECF 52-4 at 19). Dr. Rabin

testified in the similar case of Walker v. Union Pacific, that he recalled that engagement involved

one visit to Union Pacific’s Texas facility to review the new Light Cannon device and taking

some measurements. Walker, December 13, 2024, Daubert Hearing Tr., 119:12-23 (3:22-cv-

1011-SI, ECF 152).

Union Pacific did not conduct human studies at this time. For example, Union Pacific did

not test the Light Cannon’s efficacy for persons with and without color vision deficiencies. Nor

did Union Pacific test persons with and without color deficiencies and compare the Light Cannon

to real wayside signals to determine how well the Light Cannon matches real operating

conditions, or conduct some other test to make that comparison.

Eventually, in 2018, Union Pacific again hired Dr. Rabin to conduct further studies to

evaluate the efficacy of the Light Cannon. In 2019 and 2020, Dr. Rabin conducted studies with

his graduate students on color vision normal persons and color vision impaired persons. See

ECF 52-15. They compared Union Pacific’s “original” testing protocol,5 with a modified testing

5 Dr. Rabin identified Union Pacific’s original testing protocol as its “2019” protocol, as

compared to Dr. Rabin’s proposed new “2020” protocol.

protocol. Union Pacific’s original testing protocol was to show the examinee the same color,

twice, to orient him or her before the test. Id. at 3. The modified protocol was to show the

examinee all four colors before the test. Union Pacific’s original protocol had a 26.5 percent

failure rate in persons known to have no color vision deficiency. Id. With the modified protocol,

this failure rate dropped to nearly zero. Id. at 5.

C. DeFries’s Employment History

DeFries worked for Union Pacific as a conductor and brakeman from July 2004 until

March 2018. The essential duties of his job included: “Observe and respond to variety of

wayside and cab signals which include color light signals[.]” ECF 50-1 at 3. He took his first

Ishihara test in 2004. Union Pacific argues that the result is unclear because the “pass” circle is

filled in completely and the “fail” circle is marked with an “X.” See ECF 50-13 at 7. Above those

markings, however, the test indicates: “record color vision result” and the “normal” circle is

filled in. See id. The “abnormal” circle is unmarked and the trailing comments for abnormal

results also are unmarked. Thus, the evidence supports that DeFries passed his first Ishihara. He

next took an Ishihara test in 2009, and he failed the test. See DeFries Dep. Tr. 48:15-49:3

(ECF 50-11 at 10-11). He also failed Ishihara tests in March 2012 and March 2015. See

ECF 50-14, 50-15. Each time he passed Union Pacific’s previous iteration of its CVFT.

On March 29, 2018, DeFries took and failed his next routine Ishihara test. See

ECF 50-17. He was restricted from duty pending completion of his CVFT. See ECF 50-18

(pages two and three of work restriction); see also ECF 50-16 at 7 (page one of similar work

restriction from 2015 when he failed the Ishihara). This time the CVFT test was the Light

Cannon. He took and failed the Light Cannon on May 10, 2018. ECF 50-19. He appealed the

results, arguing that testing conditions affected his results. He was allowed to retake the test. He

retook and again failed the Light Cannon on July 11, 2018. ECF 50-20. The testing protocol used

for DeFries’s Light Cannon tests was the “original” protocol—to show him two of the same

lights before the test. See ECF 50-19 at 2, 50-20 at 5. After DeFries’s second Light Cannon

failure, Union Pacific’s medical examiner, Dr. John Holland, concluded that DeFries had a

“color vision deficit,” was “not fit for duty,” and his condition could not be accommodated.

ECF 52-21. Thus, his temporary work restriction became permanent.

DISCUSSION

A. Motion to Dismiss

Union Pacific argues that DeFries’s claim under the ADA is “nothing more than a

challenge to the denial of his locomotive [conductor] recertification, a challenge for which

Congress reserved exclusive jurisdiction to the court of appeals to review under the Hobbs Act.”

Union Pacific points out that the color vision acuity standards and certification process for train

conductors are established through FRA regulations. See, e.g., 49 C.F.R. §§ 242.101(a)(3), 117,

App. D. The regulations vest discretion in the railroad’s medical examiner to develop secondary

field testing and evaluate conductors who undergo secondary testing. See 49 C.F.R.

§§ 242.117(j), App. D(4); Best Practices, 80 Fed. Reg. at 73123-24. Union Pacific asserts that

the decision to deny DeFries’s conductor certification was made by Dr. Holland because he

concluded that DeFries could not meet FRA color vision acuity standards.

FRA regulations also include an administrative appeal process. The regulations provide:

Any person who has been denied certification, denied

recertification, or has had his or her certification revoked and

believes that a railroad incorrectly determined that he or she failed

to meet the certification requirements of this regulation when

making the decision to deny or revoke certification, may petition

the Federal Railroad Administrator to review the railroad’s

decision.

49 C.F.R. § 242.501(a) (emphasis added).

Union Pacific contends that this provision requires that any employee must exhaust

administrative remedies for any claim relating to certification. Union Pacific argues that

combining this provision with the Hobbs Act’s requirement that challenges to final agency action

must be brought in the court of appeals means that DeFries cannot evade the reach of the Hobbs

Act by failing to file the required administrative review and then asserting that he did not obtain

a final agency action.

The Court agrees that if DeFries’s claim is the type of claim that falls under the Hobbs

Act, he cannot avoid those jurisdictional requirements by failing to use the administrative

appeals process and obtaining a final agency decision and then arguing that he has no final

agency action to trigger coverage under the Hobbs Act. See, e.g., Brown v. Gen. Servs.

Admin., 425 U.S. 820, 833-34 (1976) (“It would require the suspension of disbelief to ascribe to

Congress the design to allow its careful and thorough remedial scheme to be circumvented by

artful pleading. . . . [A] precisely drawn, detailed statute pre-empts more general remedies.”).

There are, however, two errors with Union Pacific’s contention that administrative review under

the FRSA’s implementing regulations trumps a claim under the ADA.

The first flaw in Union Pacific’s argument is that the plain text of the FRA regulations do

not require administrative review. The regulations provide that an employee “may” file a petition

with the FRA. 49 C.F.R. §§ 242.501(a) (conductors); 240.401(a) (engineers); see also

Carpenter, 432 F.3d at 1031 (“The regulations were not designed to affect the relationships

between railway companies and their labor force. See, e.g., 49 U.S.C. § 20110; 49 C.F.R.

§§ 240.1(a), 240.5(c)-(f). Despite this focus, Subpart E of 49 C.F.R. Part 240 establishes a

limited three-level dispute resolution mechanism in which a person denied engineer certification

may obtain a fresh determination by the FRA of whether a railroad’s decision was correct. See 49

C.F.R. §§ 240.401-240.411.” (emphasis added)). The FRA knew how to instruct that a person

“must” or “shall” engage in conduct when drafting the implementing regulations. See, e.g., 49

C.F.R. § 242.117(a) (“Each railroad shall adopt and comply with a program which complies with

the requirements of this section.” (emphasis added)). The FRA easily could have instructed that

an employee “shall” file a petition with the FRA under certain circumstances if that was intended

to be the only option available to employees challenging certification decisions. The FRA chose

not to use such absolute language in this provision. Indeed, the Ninth Circuit in Carpenter

repeatedly emphasized the “limited” scope of and lack of remedial relief available in the FRA

administrative process and described several alternatives available to railroad employees

“wrongly denied engineer certification,” including a claim under the Railway Labor Act and

claims under a collective bargaining agreement or at common law. See, e.g., Carpenter, 432 F.3d

at 1034-35. The Ninth Circuit’s express description that an employee wrongly denied engineer

certification had avenues other than FRA administrative appeals directly contradicts Union

Pacific’s argument to the contrary here.

Because the FRA administrative review provision is not mandatory, it means that

DeFries’s failure to file an administrative appeal does not implicate the Court’s jurisdiction

because it does not implicate the court of appeals’ future jurisdiction. Cf. Pub. Util. Comm’r of

Or. v. Bonneville Power Admin., 767 F.2d 622, 626 (9th Cir. 1985) (holding “that where a statute

commits review of final agency action to the court of appeals, any suit seeking relief that might

affect the court’s future jurisdiction is subject to its exclusive review”). DeFries had the option of

administratively appealing to the FRA, but he also had the option of bringing other types of legal

challenges. See, e.g., 49 C.F.R. § 242.5(d) (“Nothing in this part shall be deemed to abridge any

additional procedural rights or remedies not inconsistent with this part that are available to the

employee under a collective bargaining agreement, the Railway Labor Act, or (with respect to

employment at will) at common law with respect to removal from service or other adverse action

taken as a consequence of this part.”); Carpenter, 432 F.3d at 1035.

The second flaw in Union Pacific’s argument is that Union Pacific contends that the

FRSA precludes a claim under the ADA. It does not. Although the FRSA aspires for national

uniformity in railroad safety “to the extent practicable,” it only expressly preempts state law.

See 49 U.S.C. § 20106(2); Tufariello v. Long Island R.R., 458 F.3d 80, 86 (2d Cir. 2006). For

two federal statutes, “courts are not at liberty to pick and choose among congressional

enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent

a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton

v. Mancari, 417 U.S. 535, 551 (1974). Although Union Pacific states that it does not argue

“preemption,” it does not offer a persuasive argument for preclusion.

In enacting the FRSA, Congress did not clearly express an intent to preclude ADA

claims. Indeed, the two statutes have different purposes that can work harmoniously—the FRSA

is focused on railroad safety and the ADA protects against discrimination of persons with actual

or perceived disabilities. Cf. Vann-Foreman v. Illinois Cent. R.R. Co., 2022 WL 180749, at *4

(N.D. Ill. Jan. 20, 2022) (“The subject matter of Title VII is discrimination. It is not a safety

statute. Thus, Title VII and the FRSA address different subject matters entirely. Consequently,

the court concludes that the FRSA does not preempt Title VII and plaintiff was not required to

exhaust any available remedies under the FRSA.” (citation omitted)); Weeks v. Union Pac. R.R.

Co., 2017 WL 1740123, at *7 (E.D. Cal. May 4, 2017) (“Further, the subject matter of the FEHA

and the ADA is discrimination. As relevant here, the subject matter of the FRSA and 49 C.F.R.

Part 240 is the criteria for ensuring that safe and qualified individuals operate locomotives. The

ADA and FEHA are not safety statutes or regulations. The FRSA and the ADA/FEHA address

different subject matters entirely.” (citations omitted)); Earwood v. Norfolk S. Ry. Co., 845 F.

Supp. 880, 885 (N.D. Ga. 1993) (“The Court concludes that Plaintiff’s FELA claims are not

precluded by F.R.S.A. The two statutes do not purport to cover the same areas. . . . There is

clearly no ‘intolerable conflict’ between the two statutes.”).

As the Southern District of New York explained, in finding that claims under the Federal

Employers Liability Act (“FELA”) were not precluded by the FRSA,

The Court concludes that it must not rewrite the express statutory

language of the FRSA by inferring that its regulations preclude

covered federal claims under the FELA, in addition to covered

state law claims. . . .

A different conclusion is not warranted by the FRSA’s vague

directive that “[l]aws, regulations, and orders related to railroad

safety ... shall be nationally uniform to the extent practicable.” 49

U.S.C. § 20106(a)(1). This provision must be read in the context in

which it appears: a section of the statute exclusively addressing the

preemption of state law.

. . . .

Finally, were there any lingering doubts as to how the Supreme

Court would resolve this issue, those doubts are eliminated by the

Supreme Court’s recent decision in POM Wonderful LLC v. Coca–

Cola Co., 573 U.S. 102 (2014).

Henderson v. Nat’l R.R. Passenger Corp., 87 F. Supp. 3d 610, 616, 619 (S.D.N.Y. 2015). The

Henderson court described the Supreme Court’s unanimous holding in POM Wonderful, with its

similar underlying statute’s specific preclusion of state law and not federal law, heavily regulated

industry, and the goal of “national uniformity.” Id. at 619-21. The court in Henderson found

POM Wonderful to be persuasive authority, and concluded that the FRSA and FELA were

complementary statutes and that the FRSA did not preclude FELA. Id. at 621.

The Court finds Henderson persuasive authority and although it involved FELA, there is

even less reason for the FRSA to preclude the ADA than to preclude FELA. The ADA focuses

on disability discrimination, whereas FELA focuses on the safety of railroad employees, so it

arguably has more overlap with the FRSA.

The Court also agrees with the court in Henderson that POM Wonderful provides

persuasive authority. In that case, POM Wonderful sued the Coca-Cola Company (“Coca-Cola”)

under the false advertising provision of the Lanham Act over one of Coca-Cola’s fruit juice

products, and the district court concluded that the claim was precluded under the Food, Drug,

and Cosmetic Act (“FDCA”). POM Wonderful, 573 U.S. at 110. The FDCA prohibits the

misbranding and mislabeling of food and drink and authorizes the Food and Drug Administration

to promulgate regulations regarding food and drink labeling, including the labeling of mixes of

different types of juice into one juice blend. Id. at 108. The FDCA preempts certain state laws on

misbranding but does not refer to federal laws. Id. at 109 (citing 21 U.S.C. § 343-1(a)).

In POM Wonderful, the Ninth Circuit affirmed the district court but the Supreme Court

reversed. The Supreme Court explained that the FDCA expressly preempted state laws but did

not mention federal laws. Id. at 114. The Court then emphasized: “By taking care to mandate

express pre-emption of some state laws, Congress if anything indicated it did not intend the

FDCA to preclude requirements arising from other sources. Pre-emption of some state

requirements does not suggest an intent to preclude federal claims.” Id. (citation omitted). The

Supreme Court also concluded that “[t]he structures of the FDCA and the Lanham Act reinforce

the conclusion drawn from the text” because “[t]he Lanham Act and the FDCA complement each

other in major respects, for each has its own scope and purpose.” Id. at 115. Statutes complement

each other when they “impose ‘different requirements and protections.’” Id. (quoting J.E.M. Ag

Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 144 (2001)). The Supreme Court

pointed out that “[w]hen two statutes complement each other, it would show disregard for the

congressional design to hold that Congress nonetheless intended one federal statute to preclude

the operation of the other.” Id.

The Supreme Court rejected Coca-Cola’s argument that the FDCA’s goal of “national

uniformity” in labeling and branding supported preclusion of the Lanham Act claim. The Court

explained:

it is far from clear that Coca-Cola’s assertions about national

uniformity in fact reflect the congressional design. Although the

application of a federal statute such as the Lanham Act by judges

and juries in courts throughout the country may give rise to some

variation in outcome, this is the means Congress chose to enforce a

national policy to ensure fair competition. It is quite different from

the disuniformity that would arise from the multitude of state laws,

state regulations, state administrative agency rulings, and state-

court decisions that are partially forbidden by the FDCA’s pre-

emption provision. Congress not infrequently permits a certain

amount of variability by authorizing a federal cause of action even

in areas of law where national uniformity is important.

Id. at 117.

Similar issues are present here. The ADA and FRSA complement each other because

they impose different requirements and protections. They each have their own scope and purpose

and can operate in tandem. Congress focused on national uniformity for the FRSA by

preempting state law but allowed “a certain amount of variability by authorizing a federal cause

of action” even though national uniformity is important to railroad safety. See id. The application

of a federal statute like the ADA would not result in the “disuniformity that would arise from the

multitude of state laws, state regulations, state administrative agency rulings, and state-court

decisions.” See id.

Further, DeFries’s discrimination claims under the ADA do not give rise to concerns

requiring preclusion. DeFries challenges Union Pacific’s discretionary Light Cannon test as

discriminatory. “Union Pacific has discretion under the federal regulations to develop and

administer follow-up color-vision tests to those who fail the Ishihara. But that discretion must be

exercised within the limits of the ADA.” See Mills v. Union Pac. R.R. Co., 2024 WL 185246,

at *9 (D. Idaho Jan. 16, 2024). DeFries is not challenging the FRA regulations or an FRA

decision. Absent Union Pacific’s rejected argument that DeFries was required to file an appeal

with the FRA and create a final agency action, Union Pacific offers no credible argument that

DeFries is making a challenge related to the FRA. “This is not a case where a lawsuit is

undermining an agency judgment, and in any event the [FRA] does not have authority to enforce

the [ADA].” See POM Wonderful, 573 U.S. at 120.

Union Pacific cites several cases to support its argument that this case falls under the

Hobbs Act. The first is Daniels v. Union Pacific Railroad Co., 530 F.3d 936 (D.C. Cir. 2008). In

Daniels, locomotive engineers sued Union Pacific, the Locomotive Engineer Review Board

(“LERB”), and the FRA after Union Pacific revoked the “Class I” licenses of seven locomotive

engineers without a hearing. Id. at 937-38. The plaintiffs argued that this violated an FRA

regulation, 49 C.F.R. § 240.307(b), which establishes that before revoking a license upon

recertification, a railroad must provide notice and the opportunity to be heard. Daniels, 530 F.3d

at 938-39. After Union Pacific’s conduct, Daniels petitioned the LERB for review, which

concluded that the case was governed by FRA regulations, and found that Union Pacific did not

need to provide a hearing for the alleged conduct. Id. at 939. Daniels appealed the LERB’s

decision to the FRA and lost. Id. Daniels then sued all three defendants in federal district court,

alleging violations of his Fifth Amendment right to due process. The D.C. Circuit concluded that

the two causes of action naming the LERB and the FRA sought review of final agency action—

the petition for review before the LERB, regardless of whether the engineers had exhausted their

administrative appeals. Id. at 941-42. Thus, the D.C. Circuit held that the court of appeals had

exclusive jurisdiction over those claims and the district court did not have subject matter

jurisdiction over those claims. Id.

The D.C. Circuit then evaluated the claim brought against only Union Pacific, which

alleged that Union Pacific failed to “provide a prior hearing or prompt post deprivation hearing

to determine if there is the basis for revocation of a Class I certificate under federal regulations.”

Id. at 942 (quotation marks omitted). The circuit court held that this count also was a challenge

to the actions of the LERB and the FRA, because Union Pacific’s denial of a hearing was based

on its interpretation of § 49 C.F.R. § 240.307(b), an interpretation that the FRA had upheld. Id.

The court concluded that to obtain the requested relief,

the plaintiffs must challenge the FRA’s interpretation of its

regulations as well as Union Pacific’s application of the

regulations. Otherwise, the plaintiffs are circumventing review of

the FRA’s regulations in this Court (provided for by the Congress

under the Hobbs Act) by instead indirectly—in Count I—seeking

review of the regulations in district court.

Id. (emphasis in original). The court also noted a demotion was essentially a revocation, which is

subject to a three-tiered administrative review, and constitutes a challenge to the FRA. Id. at 943.

Daniels is distinguishable because although the claim purportedly was against only

Union Pacific for its conduct, it actually involved procedural conduct that already had been

ratified by the FRA. Thus, it was deemed agency conduct because it was Union Pacific’s

interpretation of an FRA regulation that the FRA already had ratified. Thus, it equated to Union

Pacific’s application of the FRA’s interpretation of its regulation. There is no such agency

conduct here. There is no evidence that the FRA evaluated the Light Cannon test for any

discriminatory effects and ratified its efficacy. To the contrary, the regulations show that field

testing is left to the railroad’s discretion. The fact that the FRA may have approved Union

Pacific’s certification program does not make use of the Light Cannon test a federal agency

action. Nor did DeFries invoke his voluntary administrative appeal process and obtain an agency

opinion.

Union Pacific next cites Brotherhood of Locomotive Engineers & Trainmen v. Federal

Railroad Administration (“BLET”), 972 F.3d 83 (D.C. Cir. 2020). In BLET, the D.C. Circuit held

that it had jurisdiction under the Hobbs Act to hear the challenge by labor unions to the FRA’s

approval of a materially altered engineer certification program. Id. at 99 (“As to the question of

finality, the Railroad Administration’s approval of Kansas City Railway’s revised engineer

certification program is a final agency action reviewable under the Hobbs Act.”). BLET is

distinguishable because it was a challenge directed to the FRA based on its action approving a

railroad’s certification program. It has no similarity to the facts of this case, other than generally

reciting the background of the FRA and its regulations.

Union Pacific also cites Carpenter v. Department of Transportation, 13 F.3d 313 (9th

Cir. 1994). In that case, a truck driver with monocular vision had been a licensed driver for 31

years. Id. at 314. Then the Federal Highway Administration (“FHWA”) discovered his vision

issues and disqualified him from driving in interstate commerce because he did not satisfy the

agency’s vision acuity standards. Id. Carpenter filed an administrative appeal against the agency,

and after that was denied, he filed suit against the FHWA in federal district court under the

Rehabilitation Act. Id. The Ninth Circuit concluded that the claim against the FHWA (part of the

DOT) challenging its regulations must be brought in the court of appeals under the Hobbs Act.

Id. at 315-16. The court warned against “artful pleading” to frame a challenge to DOT

regulations as a civil rights case. See id. at 316 (“It would be inconsistent with this intent to allow

those who wish to challenge DOT regulations the opportunity to avoid the jurisdictional and time

limitations of the Hobbs Act by simply invoking the Rehabilitation Act and adding damages to

their complaint.”). This case is distinguishable because DeFries is not suing a federal agency and

is not challenging FRA regulations, directly or indirectly.

The fourth case cited by Union Pacific is Kirkingburg v. Albertson’s, Inc., 143 F.3d 1228

(9th Cir. 1998), as amended (July 1, 1998), rev’d, 527 U.S. 555 (1999). In Kirkingburg, the

Ninth Circuit did not reach the Hobbs Act question because it was not addressed by the parties.

Id. at 1236. The court noted in dicta, however, that it “seriously question[ed] [its] jurisdiction” to

adjudicate the plaintiff’s relevant argument because it doubted “a business that operates in the

highly regulated commercial transportation industry is free to challenge generally applicable

FHWA regulations in private litigation.” Id. This was because “[t]he practical effect of

Albertson’s argument is to seek to have us declare the waiver program invalid.” Id. This case has

no application here because DeFries is not asking this Court to declare any aspect of the FRA

invalid or to make a decision that would have the practical effect of invalidating any portion of

the FRA.

The next case cited by Union Pacific is Bonneville Power. As noted, in Bonneville

Power, the Ninth Circuit explained that when a circuit court has exclusive jurisdiction over final

agency action, if the resolution of the claims before the district court “could affect the [circuit]

court’s future jurisdiction over final agency action,” then the district case was subject to the

circuit court’s exclusive jurisdiction. 767 F.2d at 626. DeFries has filed an ADA claim and is

seeking money damages and injunctive relief to preclude Union Pacific from continuing to

engage in discriminatory conduct. At this time, Union Pacific fails to show that the relief sought

in this case could affect the circuit court’s jurisdiction such that jurisdiction in this Court is

barred.

The final case cited by Union Pacific is Turner v. BNSF Railway Co., 2023 WL 9052248

(N.D. Tex. Dec. 22, 2023). The plaintiff in Turner, like DeFries, failed his Ishihara test. Turner’s

claim stemmed from the argument that the railroad’s secondary field test was insufficient under

FRA guidelines and served to discriminate against him. See id. at *2. The Turner court did not

mention the Hobbs Act, but concluded that the FRSA precluded the ADA claim because of the

administrative review option in 49 C.F.R. § 242.501(a). Id. at *2. The court in Turner rejected

the contention that the ADA and the FRSA could co-exist harmoniously, stating: “If conductors

were permitted to challenge a railroad’s testing criteria for recertification under the ADA, it

would have the untenable result of making the railroad safety regulations established under the

FRSA virtually meaningless.” Id. at *3 (quotation marks omitted). The court continued,

explaining that “[t]he FRA’s ‘specific, detailed scheme setting out dispute resolution procedures’

on this issue would be pointless and the FRSA’s purpose of protecting public health and safety

would be undermined.” Id. (quoting Peters v. Union Pac. R.R. Co., 80 F.3d 257, 261 (8th

Cir. 1996)). The Turner court explained that

When an employee is not attempting to challenge the substance of

the railroad’s certification program or the actual decision to deny

recertification,” the employee may state a claim under the ADA.

But in this case, where FRA regulations specifically govern the

sufficiency of an employee’s recertification testing criteria, an

employee cannot challenge the railroad’s testing protocol under the

ADA. Such a claim is precluded by the FRA’s “comprehensive

administrative adjudication system for handing certification

disputes.” See Peters, 80 F.3d at 262.

Id. (cleaned up).

The Court respectfully disagrees with Turner. The Turner court did not discuss the

meaning of the FRA regulation’s use of the word “may” in the administrative appeal provision.

The court in Turner also did not mention the regulation’s provision expressly preserving other

legal challenges. Nor did the court distinguish between analyzing state law preemption (like the

Eighth Circuit did in Peters) and federal law preclusion. The court in Turner relied on and

applied the reasoning of state court FRSA preemption cases, particularly Peters, but the analysis

is different for federal law preclusion. The court also did not mention POM Wonderful or the fact

that Congress specifically preempted state law but not federal law in the FRSA. Most

importantly, the Northern District of Texas is not within the Ninth Circuit, which has the

guidance of Carpenter. Carpenter explains the limited reach of the administrative review within

the FRSA and specifically states that employees “wrongly denied engineer [and conductor]

certification” do have legal recourse other than the administrative review process. See

Carpenter, 432 F.3d at 1034-35. This is the exact opposite of the conclusion reached by the court

in Turner. 2023 WL 9052248, at *3 (“To the extent a conductor believes they have been

improperly denied recertification, their recourse is with the FRA, not under the ADA.”).

B. Motion for Summary Judgment

Union Pacific moves for summary judgment, arguing first that DeFries cannot meet his

burden to make a prima facie case because he cannot show that he is a “qualified” individual

under the ADA. Union Pacific then raises three affirmative defenses. The first asserts that Union

Pacific was following binding federal regulations, similar to the Supreme Court’s decision in

Albertson’s. The next two rely on the statutory affirmative defenses set forth in 42 U.S.C.

§ 12113, known as “business necessity” and “direct threat.”

1. Qualified Individual

Under the ADA an individual is “qualified” if, “with or without reasonable

accommodation, [the individual] can perform the essential functions of the employment position

that such individual holds or desires.” 42 U.S.C. § 12111(8). The Ninth Circuit follows a two-

step inquiry to determine whether an individual is qualified for a position. Bates v. United Parcel

Serv., Inc., 511 F.3d 974, 990 (9th Cir. 2007). First, a court “examines whether the individual

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

position.” Id. (quotations marks omitted). Second, a court “considers whether the individual can

perform the essential functions of such position with or without a reasonable accommodation.”

Id. (quotation marks omitted). “Essential functions are not to be confused with qualification

standards, which an employer may establish for a certain position. Whereas essential functions

are basic duties, qualification standards are personal and professional attributes that may include

physical, medical, and safety requirements.” Id. (cleaned up).

Union Pacific argues that DeFries cannot show that he is a qualified individual because

he cannot perform the essential functions of his job—meaning he does not meet the second

prong of the test. Union Pacific argues DeFries fails this prong because he failed his Ishihara test

and both Light Cannon tests and therefore he cannot show that he can be certified for color

vision acuity as required under FRA regulations.

The Mills court rejected a similar argument by Union Pacific under factually similar

circumstances. See Mills, 2024 WL 185246, at *10. The court in Mills first found that “federal

regulations do not require use of the Light Cannon.” Id. at *6. The Mills court thus characterized

the Light Cannon as a “qualification standard” and not an “essential function.” See, e.g., id.

at *9-10, 13. The court in Mills rejected Union Pacific’s argument that failing the Light Cannon,

which was “necessary to meet the essential functions of the job of conductor,” resulted in the

plaintiff failing to be a qualified individual, quoting Bates in explaining:

The circuit court elaborated that “it would make little sense to

require an ADA plaintiff to show that he meets a qualification

standard that he undisputedly cannot meet because of his disability

and that forms the very basis of his discrimination challenge.” Id.

(emphasis in original). While this statement expressly applies to

the second prong of the qualified individual analysis, the logic

holds true for the first prong as well. It would make no sense for

the Court to hold that Mills has failed to meet the prerequisites for

conducting trains simply because he failed the test he is currently

challenging.

Id. at *10 (quoting Bates, 511 F.3d at 990). The Mills court found that based on this policy and

the plaintiff’s history of job performance without difficulty and passing the old CVFT test after

failing the Ishihara, issues of fact existed as to whether the plaintiff was able to perform the

essential functions of his job. Id.

Union Pacific relies on Turner, which found that the plaintiff was not a qualified

individual because the plaintiff did not have a certification and did not seek administrative

review of that certification decision. Turner, 2023 WL 9052248, at *4. The court in Turner relied

on a Fifth Circuit opinion, Williams v. J.B. Hunt Transport, Inc., which had held that a plaintiff

could not raise an ADA claim without having exhausted the DOT’s administrative appeals

process under 49 C.F.R. § 391.47. 826 F.3d 806, 812 (5th Cir. 2016). The Ninth Circuit,

however, has not so held. Indeed, Carpenter supports a contrary conclusion.

The Court finds Mills more persuasive than Turner. Mills relies on the Ninth Circuit’s

discussion in Bates. The Court finds that underlying reasoning persuasive. It makes little sense to

find that a plaintiff who is challenging a particular test, protocol, or standard as discriminatory

because it screens out persons with perceived disabilities like the plaintiff, cannot be a qualified

individual because they failed the very test they are challenging as deficient under the ADA.

Taking the failure to be certified off the table, DeFries offers sufficient evidence to create

an issue of fact as to whether he is a qualified individual. He passed DOT color vision tests every

three years, including in 2021. See ECF 52-22; DeFries Dep. Tr. 16:25-17:11 (ECF 52-18 at

4-5). He also provides the expert medical opinion of Dr. Jay Neitz, who reviewed DeFries’s

medical records and color vision tests, and opines that he has sufficient color vision acuity to

safely perform his job as conductor. Neitz Op. at 10-11 (ECF 52-1). The latter testing and

medical opinion distinguishes this case from Blankinship v. Union Pacific Railroad Co., 2024

WL 5187689 (D. Ariz. Dec. 20, 2024). In Blankinship, the court found that the plaintiff was not

qualified to perform the essential functions when the plaintiff offered nothing other than

historical performance and old CVFT results (although those two items alone were found

sufficient in Mills).6 Id. at *5-6. Here, DeFries provides the additional DOT vision testing and

the medical expert opinion.

2. Albertson’s Defense

Union Pacific argues that it “has an absolute defense to an ADA claim if an action is

‘required or necessitated by another Federal law or regulation.’” ECF 49 at 25 (quoting 29

C.F.R. § 1630.15(e) and citing Albertson’s, 527 U.S. 555). Union Pacific contends that its

actions were protected as a matter of law because they were undertaken pursuant to binding FRA

regulations.

There is no dispute that DeFries was required under FRA regulations to take a primary

color vision test and that the Ishihara is one of the approved tests listed in the FRA regulations.

Nor is there any dispute that the regulations allow for secondary testing when a conductor fails

the primary test and that the railroad has discretion as to the type of secondary testing to

implement. One type of secondary testing is a field test. Again, the railroad has discretion under

6 DeFries also provides similar historical evidence as the plaintiffs in Mills and

Blankinship—that DeFries performed his job without problem for 14 years and passed the old

CVFT several times. That is support that he historically could perform the essential functions of

his job, including the color vision aspects of the job. It is additional evidence a reasonable juror

could consider along with the expert evidence and more recent vision testing as to whether

DeFries could perform those functions in 2018.

the regulations to create a field test. The field test, however, should be “valid, reliable, and

comparable” to what a conductor would see in the field. See Best Practices, 80 Fed. Reg.

at 73124 (“Although FRA’s rules grant discretion to railroads in selecting a test protocol, FRA’s

longstanding interpretation of this provision is that the test offered by a railroad must be a valid,

reliable, and comparable test for assessing whether a person who fails an initial vision test can

safely perform as a locomotive engineer or conductor.”).

DeFries argues that Union Pacific’s discretionary Light Cannon test serves to screen out

persons like DeFries who are perceived as color vision deficient (and thus are “disabled” under

the ADA) but can perform the essential functions of their job. DeFries contends that the Light

Cannon does so because it is not a valid, reliable, and comparable field test. DeFries provides

sufficient evidence creating a fact dispute on both of these points. As discussed above, he

provides evidence creating an issue of fact that he can perform the essential functions of his job

(i.e., that he is qualified). He also provides evidence creating an issue of fact about the efficacy

of the Light Cannon as given to DeFries and whether it screens out persons with perceived color

vision deficits. This includes a report by Union Pacific’s reviewing experts criticizing the

original Light Cannon test that was only partially modified and had no human studies before

DeFries was tested, Dr. Rabin’s 2020 study report showing that the test as given to DeFries had

a 26.5 percent failure rate for color vision normal persons, Dr. Neitz’s expert testimony

regarding DeFries’s color vision acuity, and the DOT color vision test that DeFries passed

in 2021. The Albertson’s defense, thus, turns on whether binding FRA regulations require testing

with the Light Cannon.

The FRA regulations do not require that Union Pacific use the Light Cannon test as a

secondary test. Indeed, they do not require that Union Pacific even use a field test as a secondary

test. This is unlike the situation in Albertson’s. As explained by the court in Mills in rejecting this

same argument by Union Pacific,

The problem with this line of reasoning is that the regulation in

Albertson’s provided a single, clear, substantive standard for the

visual acuity of truck drivers in interstate commerce. See 49 C.F.R.

§ 391.41(b)(10) (1998). That regulation contained no field test

provision, and certainly did not allow employers to choose how to

evaluate the visual acuity of drivers. If a driver’s vision fell below

the standard, the driver simply could not drive unless he or she

obtained a waiver and his or her employer chose to recognize the

waiver.

The safety regulations here are not the same. See 49 C.F.R. § 240,

App. F. Appendix F provides initial standards on which railroad

companies can rely in detecting problematic color blindness—the

Ishihara or other similar color-vision tests. Id. But, as previously

discussed, an employee who falls short of those standards is not

left without recourse. Subsection 4 of Appendix F affords railroad

companies broad discretion in conducting further evaluation of the

color vision of their employees. Id. at App. F(4) (“An examinee

who fails to [pass the listed color-vision tests], may be further

evaluated as determined by the railroad’s medical examiner.

Ophthalmologic referral, field testing, or other practical color

testing may be utilized depending on the experience of the

examinee.”).

With the discretion afforded by Appendix F, Union Pacific created

the Light Cannon, and used it to test Mills’ color vision after he

failed the Ishihara. In other words, unlike Albertson’s, Union

Pacific has insisted upon a job qualification of its own devising.

And because reliance on the Light Cannon is not required by

federal regulations, its use may be subject to questions about its

appropriateness and justifiable application to Mills.

Mills, 2024 WL 185246, at *10-11 (emphasis and alterations in original) (Mills cites § 240,

Appendix F, which contains the same information as § 242, Appendix D, but applied to

engineers instead of conductors). Thus, the Albertson’s defense does not apply as a matter of law

to shield Union Pacific from challenges to the Light Cannon secondary field test.

3. Business Necessity

The ADA provides a “business necessity” affirmative defense, which provides, as

relevant here, that a qualification standard that screens out persons regarded as disabled may be

defensible if it is “shown to be job-related and consistent with business necessity.” 42 U.S.C.

§ 12113(a). “Once an employee shows that a qualification standard tends to screen out an

individual with a disability, the employer shoulders the burden of proving that the challenged

standard is job-related and consistent with business necessity.” Rohr v. Salt River Project Agric.

Imp. & Power Dist., 555 F.3d 850, 862 (9th Cir. 2009); see also Bates, 511 F.3d at 992-93.

Because “disability” includes “regarded as” disabled, this standard applies here. DeFries has

shown that the Light Cannon tends to screen out persons with no or minimal color vision

deficits. Thus, the burden is on Union Pacific to show job-relatedness and business necessity.

“To show ‘job-relatedness,’ an employer must demonstrate that the qualification standard

fairly and accurately measures the individual’s actual ability to perform the essential functions of

the job.” Bates, 511 F.3d at 996. In other words, “[a]n employer urging a business necessity

defense must validate the test or exam in question for job-relatedness to the specific skills and

physical requirements of the sought-after position.” Id. at 996 n.12 (quoting Belk v. Sw. Bell Tel.

Co., 194 F.3d 946, 951 (8th Cir. 1999)). “To show that the disputed qualification standard is

consistent with business necessity, the employer must show that it substantially promotes the

business’s needs. . . . The business necessity standard is quite high, and is not to be confused

with mere expediency.” Id. at 996 (cleaned up).

Union Pacific fails to meet its burden of showing this affirmative defense as a matter of

law. As discussed, DeFries has presented evidence raising issues of material fact regarding the

efficacy of the Light Cannon test and whether it screens out persons with perceived color vision

deficits who are able to perform the essential functions of their job. This goes to both prongs of

this affirmative defense. As DeFries points out in his brief, this case is similar to Rohr in the

discretion given to the agency and how that wide discretion affects the business necessity

defense. As the Ninth Circuit explained:

Salt River asserts that its respirator certification test, including the

breathilator test, was a business necessity because it is mandated

by OSHA. However, OSHA’s requirements are not so specific.

* * *

This is not a case where an employer merely implemented the

medical certification program required by a federal agency. Rather,

OSHA’s regulations were sufficiently broad to allow Salt River the

discretion to determine how, and how often, it would evaluate its

employees’ ability to use a respirator. As such, there is a genuine

issue of fact whether Salt River could have provided reasonable

accommodations to enable Rohr to complete the test. Indeed, the

ADA provides that “[t]he prohibition against discrimination . . .

shall include medical examinations and inquiries.” 42 U.S.C.

§ 12112(d). Salt River has failed to show the necessity of the

particular breathilator test that it used in the evaluation, or the

absence of any alternative respiratory evaluation appropriate for

individuals with high blood pressure. See Bates, 511 F.3d at 996.

Salt River also failed to show that any such alternative method

would impose an undue hardship. See id. Therefore, there is a

genuine issue of material fact regarding all elements of the

business necessity defense.

Rohr, 555 F.3d at 862-63 (alterations in original) (citation omitted).

The same principle applies here. Union Pacific was given broad discretion to implement a

type of secondary testing and to create a field test if it chose that type of secondary testing.

Union Pacific fails to show the necessity or the job-relatedness of the Light Cannon test.

4. Direct Threat

Union Pacific argues that it is entitled to “rely on qualification standards that require an

employee to not pose a direct threat to the safety of others while in the workplace.” ECF 49 at 31

(citing 42 U.S.C. § 12113(b)). The “qualification standard” at issue in this case is the Light

Cannon test. To prove the direct threat affirmative defense, Union Pacific must show that

DeFries posed “a significant risk to the health or safety of others.” 42 U.S.C. § 12111(3).7

Determining whether “an individual poses a ‘direct threat’ shall be based on an individualized

assessment of the individual’s present ability to safely perform the essential functions of the job.

This assessment shall be based on a reasonable medical judgment that relies on the most current

medical knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r). This

determination includes consideration of: “(1) The duration of the risk; (2) The nature and

severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The

imminence of the potential harm.” Id.

Union Pacific argues that there is no disputed issue of fact that DeFries represented a

direct threat because he failed the Ishihara and twice failed the Light Cannon and thus had color

vision acuity deficits. Union Pacific contends that because DeFries could not be certified under

FRA regulations for color vision acuity, he was a significant risk to the health and safety of

others and posed a risk of causing a train crash.

The problem with Union Pacific’s argument is that it presupposes the efficacy of the

Light Cannon test. FRA regulations specifically accept that an engineer or conductor can fail the

Ishihara and still have sufficient color vision acuity to perform their essential job functions.

See 49 C.F.R. §§ 240.121(e), 242.117(j) (establishing secondary testing); Best Practices, 80 Fed.

Reg. at 73123 (“FRA’s longstanding view is that there are some people who, despite not meeting

the vision threshold in 49 CFR 240.121(c) and 242.117(h), have sufficient residual visual

capacity to safely perform as a locomotive engineer or conductor.”). DeFries challenges in this

lawsuit whether the Light Cannon secondary test actually screens out persons with color vision

7 Because this case involves a claim that DeFries was regarded as disabled, the

reasonable accommodation element of this affirmative defense is inapplicable. See Walker v.

Union Pac. R.R. Co., 2024 WL 5165208, at *1 n.1 (D. Or. Dec. 19, 2024).

acuity problems or instead screens out persons with normal color vision acuity and minimal color

vision deficits that are not disabling and still enable the person to perform the essential job

functions of conductor and engineer. As discussed, DeFries has presented sufficient evidence to

create an issue of fact on the efficacy of the test. This would enable a reasonable juror to

conclude that despite failing the Light Cannon, DeFries could still perform the essential

functions of his job and thus would not be pose a direct threat.

DeFries also has presented sufficient evidence to create an issue of fact related to his own

color vision acuity. As previously discussed, he provides the expert opinion of Dr. Neitz and his

DOT vision testing. DeFries also notes that he performed his job without problems for 14 years

and passed Union Pacific’s earlier CVFT test, as additional evidence providing context to the

more recent evidence. This is enough to preclude summary judgment on Union Pacific’s

affirmative defense of direct threat. Union Pacific fails to meet its burden that it has proven this

defense as a matter of law.

CONCLUSION

The Court DENIES Defendant Union Pacific’s Motion for Summary Judgment, ECF 49,

Supplemental Motion for Summary Judgment, ECF 86, and Motion to Dismiss, ECF 96.

IT IS SO ORDERED.

DATED this 7th day of March, 2025.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge