# DeFries v. Union Pacific Railroad Company

> District Court, D. Oregon · April 7, 2025

URL: https://www.frixlaw.com/law-library/cases/10840564

## Case

- **Court:** District Court, D. Oregon
- **Decided:** April 7, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10840564

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10840564. Public record. Not legal advice.