Petition for Writ of Certiorari — Shiplett v. National Railroad Passenger Corp.
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Supreme Court, U.S.
rinse @
N°. @9 735 NOvV1i WF
OGFRRCE OF THE CLERK
Jn The
Supreme Court of the Gnited States
+
KURT D. SHIPLETT
Petitioner,
Ve
NATIONAL RAILROAD PASSENGER
CORPORATION D/B/A AMTRAK,
Respondent.
é
Petition For A Writ Of Certiorari
To The United States Court of
Appeals For The Sixth Circuit
+
PETITION FOR WRIT OF CERTIORARI
with Appendix
+
* Jaimie R. Goodman
LAW OFFICES OF JAIMIE R. GOODMAN
615 Griswold, Suite 1805
Detroit, MI 48226
(313) 965-5123
Attorney for Petitioner
*Counsel of Record
October, 1999
LEGAL ADVANTAGE * 432 Walnut Street * Cincinnati, OH 45202
(800) 581-2252
QUESTIONS PRESENTED
|. Whether, under the direct threat provisions
in Title | of the Americans With Disabilities Act (ADA), 42
U.S.C. §12111(3), an employer can impose requirements
excluding individuals who take prescribed medication from
employment in safety sensitive jobs without conducting an
individualized assessment to determine whether the individual
poses a direct threat to the safety of others?
2. Whether the U.S. Court of Appeals for the
Sixth Circuit's decision in this case conflicts with this Court's
decision in Bragdon v. Abbott, 524 U.S. 624 (1998), where
the Sixth Circuit, in deciding that the petitioner-employee
posed a direct threat to the safety of others under the ADA,
deferred to the judgment of respondent-employer's medical
professional without assessing the objective reasonableness of
the judgment?
3. When an employee with a disability under
the ADA requests an accommodation of reassignment to
another position but does not identify any vacant positions,
should courts then shift the burden of proof to the employer
to show that it made a reasonable effort to assist the employee
in ascertaining whether there were vacant positions for which
the employee was qualified?
4. Whether, in a negligence action under the
Federal Employer's Liability Act, 45 U.S.C. §51, a common
carrier by railroad can be held liable to an employee for
physical and emotional injury damages caused by the railroad's
negligently dangerous employment action where the employee
suffered physical injuries but did not sustain any actual or
threatened impact by a physical object?
i
PARTIES TO THE PROCEEDING
All parties are listed in the caption
TABLE OF CONTENTS
Description Page
Questions Presented for Review ....-.-.-+-+-+5> i
Parties to The Proceedings .........----++++e55 il
TS a a a a eee ill
ee I ng ke 6 hole 6 aw 8A V1
SS ES a Sara ae er a a a ee |
Te a ae ae ae ear a a a ee l
STATUTORY PROVISIONS
eee TE A cals sk ele ee ee ew |
Graveney OF THE CASE ..... 2.226 eee es enes 2
REASONS FOR GRANTING THE WRIT:
I. THE SIXTH CIRCUIT'S DECISION THAT
PETITIONER POSED A DiRECT THREAT TO
THe SAFETY OF OTHERS UNDER THE ADA DIRECTLY
CONFLICTS WITH.THIS COURT'S DECISION IN
BRAGDON V. ABBOTT THAT COURTS CANNOT DEFER
To THE JUDGMENTS OF HEALTH CARE PROFES-
SIONALS WITHOUT ASSESSING THE OBJECTIVE
REASONABLENESS OF THE JUDGMENTS ......--- 9
eee
If.
A. This Court's Decision in Bragdon
Requires Lower Courts to Assess
The Objective Reasonableness Of
Health Care Professionals’
Judgments Without Deferring To
Their Individual Judgments .............. 9
B. The Sixth Circuit's Decision
In The Case At Bar Directly
Conflicts With This Court's
ence CN A wk ee ct haat 11
THE ADA PROHIBITS EMPLOYERS FROM
IMPOSING REQUIREMENTS OF ITS OWN
DEVISING EXCLUDING INDIVIDUALS
FROM EMPLOYMENT IN SAFETY SENSITIVE
POSITIONS SOLELY BECAUSE THEY TAKE
CERTAIN PRESCRIPTION MEDICATION,
WITHOUT CONDUCTING AN INDIVIDUALIZED
ASSESSMENT ON WHETHER THE INDIVIDUAL
Poses A DIRECT THREAT TO THE SAFETY
Ea RPP ie wa ty oa eae ee ee 14
1V
IT.
Page
THERE IS CONFLICT AND CONFUSION
IN THE LOWER COURTS REGARDING AN
EMPLOYEE'S BURDEN OF PROOF AND AN
EMPLOYER'S AFFIRMATIVE DUTY UNDER
THE REASONABLE ACCOMMODATION
PROVISIONS OF THE ADA .... 2-2-0252 055 18
THERE IS CONFUSION ON WHETHER
THis CoURT’S OPINION IN GOTTSHALL
PRECLUDES ALL NEGLIGENCE CLAIMS
UNDER FELA For PHYSICAL AND
EMOTIONAL INJURIES UNLESS THE
EMPLOYEE SUSTAINS A PHYSICAL
uv
IMPACT BY A PHYSICAL OBJECT ...---++--- 23
COMIC AIG on eS ee eee eee 26
APPENDIX
TABLE OF AUTHORITIES
Table of Cases Page(s)
Baertv. huchd Beverage, 1 td,
149 F 3d 626 (7th Cir L998) 20
Barnett. US.) Aur. Ine.
1S7 b 3d 744 (9th Cir 1998) 21
Bloom Consolidated Karl ( ‘OF POPALION,
tL Jd Ol) (3rd Cir 1994) 25
Bragdon vo Abbott,
S24 US 624 (1998) 0-13.15
(‘omsolidated Rail ¢ OFp. Vv Crottshall,
SI2US $32 (1994) 73-75
lyellestad vo Pizza Hut of America, Inc.,
I82 b 3d 609 (8th Cir 1999) 20
Hendricks-Rohinson v bxcel Corp.,
154 F 3d 685 (7th Cir, 1998) 20
Vlarschand vo Norfolk and Western Railroad Co.
SI b 3d 714 (7th Cir 1996) 25
Viengine vo Runyon.
b1db 3d 415 (3rd Cir 1997) 20
Vi
Table of Cases Page(s)
Miller v. [linow Department
of Corrections,
107 F 3d 483 (7th Cir 1997) 20
Monette v. belectrome Data Systems Corp.,
90 F 3d 1173 (6th Cir 1996) 19
Moses v. American Nonwovens, [ne.,
97 F 3d 446 (11th Cir 1996) 19
Mustafa vo Clark County School District,
1S7 b 3d 1169 (9th Cir 1998) 21
School Board of Nassau County v. Arline,
480 US 273 (1987) 1S
Smith vo Ameritech,
129 F 3d 8587 (6th Cir, 1997) 19
~ Smith vo Midland Brakes,
180 F 3d 1154 (10th Cir, 1999) 19-20
Stone v. City of Mount Vernon,
118 F 3d 92 (2nd Cir 1997) 21
Lable of Cases Page(s)
Sutton v. United Airlines, Lrw.,
US 19S Ct. 2139 (1999) 16-17
Szymanski vo Columbia lransportation Co.,
154 F 3d 591 (6th Cir, 1998) 23-25
lavlor v. Phoenixville School District,
174 F 3d 142 (3rd Cir, 1999) 20
lavlor v. Principal binancial Group,
93 F 3d 155 (Sth Cir, 1996) 19
(rie vy. Lhompson,
337 US. 163 41949) 24
White v. York International Corporation,
45 F 3d 357 (10th Cir, 1995) 19
Willis v. Conopeo, Inc.,
108 F.3d 282 (11th Cir, 1997) 19
Statutes And Regulations Page(s)
28 U.S.C. §1254(1)
42 U.S.C. §12102(2)(C) 11S
42U SC. §1211103) 1,9, 15-16,22
Vill
Statutes And Regulations Page(s)
42 U.S.C. §12111(8) 1,15
42 U.S.C. §12111(9)(B) 121
42 U S.C. §12113 (a)-(b) 1,9,16,22
42 USC. §12112(b)( SA) 1,21
45U SC. 851 1,23
29 CFR. §1630.2(0)(3) 422
29 CFR. §1630.2(r) 2.16
Publications:
Guidula, The Threat To Safety Defense
Standard And The Use Of Psychotropic
Medication Under Title | Of The ADA,
144 U. Pa. L. Rev. 1149, 1181 (1996) 18
Legislative Material:
H.R. Rep. No. 101-485 (II), 10 1st Cong
2nd Sess. 65-67 (1990), reprinted in
1990 US.C.C.AN. pp. 348-349 22
H.R. Rep. No. 101-485 (IID), 10 1st
Cong. 2d Sess. 45-46 (1990) reprinted in
1990 US C.C.AN., pp. 468-469 16
1X
PETITION FOR WRIT OF CERTIORARI
Petitioner Kurt D. Shiplett respectfully prays that a
Writ of Certiorari issue to review a final judgment and order
of the United States Court of Appeals for the Sixth Circuit.
OPINIONS BELOW
The decision of the Court of Appeals for the Sixth
Circuit vacating a judgment on jury verdict in favor of the
petitioner was filed on June 17, 1999 and was _ not
recommended for publication. (Appendix A). The Sixth
Circuit's order denying petitioner's petition for rehearing was
filed on August 2, 1999. (Appendix B). The trial court's
judgment on jury verdict was filed on September 24, 1997.
(Appendix C). The trial court's order denying respondent's
motion for judgment as a matter of law or in the alternative,
a new trial was filed on September 24, 1997. (Appendix D).
JURISDICTION
Petitioner seeks review of the judgment and order of
the Court of Appeals for the Sixth Circuit, that was entered on
June 17, 1999. (App. A). The Sixth Circuit's order denying
the petition for rehearing was dated August 2, 1999. (App.
B). This Court has jurisdiction under 28 U.S.C. §1254(1).
STATUTORY PROVISIONS AND REGULATIONS
The pertinent federal statutes are 42 USC.
§§12102(2), 12111(3), (8)-(9), 12112(a),(b)(1) & (S)(A),
12113(a)-(b) of the Americans with Disabilities Act (ADA)
and 45 U.S.C. §51 of the Federal Employer's Liability Act
(FELA) The statute which confers jurisdiction in this court
is28USC §1254(1) The pertinent federal regulations are
29 CFR. §§$1630 2(0)(3), 1630 2(r) The pertinent federal
statutes and regulations cited above are reproduced in
Appendices Fl - F9. There are no constitutional provisions,
treaties, state statutes or ordinances at issue
STATEMENT OF THE CASE
This employment action brought by Petitioner Kurt
Shiplett in United States District Court against his employer
Respondent National Railroad Passenger Corporation
("Amtrak") raises federal law claims under the Americans with
Disabilities Act (ADA) and the Federal Employer's Liability
Act(FELA). Shiplett was a locomotive engineer employed by
Amtrak Federal jurisdiction of this action was based on 28
USC $1331 This case was tried before a jury in federal
court. The jury found in favor of Shiplett and awarded him
damaves against Amtrak in the amount of $500,000 00
Ina nutshell, this case arose because Amtrak regarded
Shiplett as having a disability, stereotyping him as a "drug
abuser" and "mentally unstable" all because he was taking the
prescription medication Xanax — Shiplett took Xanax as
prescribed by his physician before bedtime at least eight hours
before reporting to work at Amtrak as a locomotive engineer
Without conducting any individualized assessment on whether
Shiplett’s taking prescription medication adversely affected his
ability to sately perform his job, Amtrak mandated on its own
that Shiplett was not allowed to return to work as a
locomotive engineer if he was taking Xanax Amtrak not only
refused to return Shiplett to work, but refused to reasonably
accommodate him by reassigning him to another position
Instead. Amtrak directed Shiplett to stop taking Xanax
immediately if he wanted to return to work. This was a
dangerously negligent instruction which caused Shiplett
physical injuries and placed him in fear of physical harm
Shiplett began his employment with Amtrak on
September 22, 1986. He held positions with Amtrak as an
assistant conductor, conductor and assistant locomotive
engineer In 1990, he was promoted to locomotive engineer
and remained in that position until September 15, 1994. By all
accounts, Shiplett was a safety conscious locomotive engineer,
having received safety awards from Amtrak during his tenure
as locomotive engineer. (App. E, p. 8-9)
Shiplett had been taking the prescription medication
Xanax to help him sleep at bedtime. From 1992 until
September 15, 1994, Shiplett regularly took Xanax only
before bedtime, at least eight to ten hours before he reported
to work as a locomotive engineer He never took Xanax
while working or when he was subject to duty. He only took
one milligram of Xanax as prescribed by his physician
Shiplett's physician advised him that he could take this dosage
of Xanax and safely work as a locomotive engineer, (App. E,
p 7-8)
Shiplett informed Amtrak management in 1992 and
1993 that he was taking Xanax. Amtrak advised him that he
could take Xanax and work as a locomotive engineer "as long
as it had been prescribed by a doctor" (App. A, p. 5)
Shiplett experienced no adverse side effects from taking
Xanax His ability to safely operate a locomotive was
unimpaired) (App. E, p. 8) Xanax has no side effects on
certain individuals. (App. A, p. 3). Prior to September 15,
1994, Amtrak's employment records reflected that Shiplett's
overall job and safety performance was above average while
he was taking Xanax.
On September 15, 1994, Shiplett overshot a passenger
platform while operating the locomotive. Asa result, Shiplett
was given a drug and alcohol screen by Amtrak. He tested
positive for benzodiazepine, a class of drugs which includes
Xanax. At that point, Amtrak's medical officer, Dr. Robert
McLean became involved. Amtrak's Dr. McLean removed
Shiplett from service as a locomotive engineer because he was
taking Xanax. Dr. McLean told Shiplett that he had to stop
taking Xanax immediately if he wanted to return to work.
(App. A, p. 4)
On September 27, 1994, Dr. Gallant was contracted
out by Amtrak, to conduct a physical examination of Shiplett.
Dr Gallant advised Shiplett that he was "mentally and
physically fit" to return to work and to try to get off the Xanax
slowly. Dr. Gallant told Shiplett that taking Xanax at bedtime
and working the next day as a locomotive engineer would not
be a "safety factor" (App. E, p. 9).
Amtrak still refused to return Shiplett to work unless
he stopped taking Xanax. Amtrak's Dr. McLean felt that
Xanax "might" have contributed to Shiplett's overshooting the
platform on September |Sth. (App. A, p. 6). Dr. McLean did
not know whether the use of Xanax adversely affected
Shiplett's alertness or coordination (App. E, p. 16). This
could only be adduced by direct examination. Dr. McLean
never tested, examined or even met Shiplett. Dr. McLean
never reviewed Shiplett's medical history or performance
records. (App. E, p. 13-14, 16, 18).
It was undisputed that Xanax can have no side effects
on some individuals. (App. A, p. 3, App. E, p. 19). Yet,
Amtrak's Dr. McLean imposed a blanket exclusion of
employees who take Xanax from working as locomotive
engineers. It did not matter to Amtrak that Shiplett was only
taking one milligram of Xanax before bedtime at least 8 to 10
hours before he would work. (App. E, p. 11-13, 19).
There were no governmental regulations prohibiting
locomotive engineers from operating a locomotive if they took
Xanax as prescribed by a physician. This prohibition was
imposed by Amtrak's medical officer Dr. McLean and not by
any governmental agency. (App. E, p. 20).
Once Amtrak refused to return Shiplett to work as a
locomotive engineer, he requested an accommodation to
return to work in another position. Shiplett asked Dr.
McLean in the end of September, 1994 that he be allowed to
return to work in another position. Amtrak's Dr. McLean did
_not deny that such an accommodation request was made,
stating he had no recollection as to whether such a request for
accommodation was made. Amtrak made no attempt to try to
'The Sixth Circuit made no contrary finding. The Sixth
Circuit found that two public safety agencies - the National
Transportation Safety Board (NTSB) and the Federal Railroad
Administration(FRA) - supported Dr. McLean's decision affer
the fact. (App. A, p. 9-10). In point of fact, there was no
proof of this, other than Dr. McLean's testimony on the views
of the NTSB and a letter from the FRA which did not even
mention Xanax.
reassign Shiplett to a vacant position” (App. A, p. 9, 20-21,
App. E, p. 20-21)
Instead, Amtrak's Dr McLean instructed Shiplett to
stop taking Xanax immediately, if he wanted to return to
work = Shiplett: followed Dr McLean's instruction and
suffered physical injuries - headaches, shakiness, insomnia and
nausea - as aresult. (App. A, p. 4, 26) Amtrak's instruction
was dangerously negligent and put Shiplett at risk of further
physical injuries such as seizures. (App. E, p. 4-5)
Shiplett's treating physician Dr. Viken Matossian, a
board certified psychiatrist who specialized in the effects of
psychotropic medication such as Xanax, contacted Amtrak's
Dr McLean Dr Matossian advised Dr McLean that
Shiplett's taking Xanax as prescribed would not impair his
ability to safely perform his job. (App. E, p 2-4). Dr
McLean admitted Dr. Matossian advised him that Shiplett was
able to safely perform his job as a locomotive engineer while
taking Xanax before bedtime. (App. E, p. 17). Dr. McLean
did not specialize in the area of psychiatry and had no special
training on the effects of psychotropic medication such as
Xanax. (App. E. p. 14-15)
‘More than six months after Shiplett made his
accommodation request and only after he was totally disabled
from returning to work in any capacity, Amtrak sent Shiplett
a letter dated April 6, 1995, explaining the process of
requesting a reasonable accommodation. Shiplett was unable
at that point to return to work or respond to that letter. (App
A. p 8-9)
Dr. McLean still refused to reinstate Shiplett to his
position of locomotive engineer unless he stopped taking
Xanax. After Shiplett requested reassignment to a conductor
or assistant conductor position, Dr. McLean accused Shiplett
of being a drug abuser, "mentally unstable" and recommended
that he speak with a drug counselor. (App. A, p. 6, 17).
Because of Amtrak's discriminatory conduct, Shiplett has been
unable to return to work from December 23, 1994 forward
Shiplett filed this lawsuit in U.S. District Court seeking
remedy from Amtrak's discriminatory and negligent conduct.
Shiplett maintained, in pertinent part, claims against Amtrak
of handicap discrimination under Title | ofthe Americans With
Disabilities Act (ADA), 42 U.S.C. §12102, ef seg. and
negligence under the Federal Employer's Liability Act (FELA),
45 U.S.C. §51. Shiplett maintained that Amtrak discriminated
against him by refusing to return him to work and rejecting his
request for reasonable accommodation on the basis of a
perceived disability in violation of the ADA. Shiplett
maintained under FELA that Amtrak negligently instructed
him to stop taking Xanax immediately, thereby causing him
physical and emotional injuries
After an eight day trial, the jury returned a general
verdict of $500,000.00 in favor of Shiplett. The district court
denied Amtrak's motion for judgment as a matter of law or in
the alternative a new trial. In a peremptory fashion, the Sixth
Circuit vacated the judgment on jury verdict, reversed the
district court's order denying Amtrak's motion for judgment as
a matter of law and entered judgment in favor of Amtrak on
each of Shiplett's claims
While the Sixth Circuit found that Amtrak regarded
Shiplett as having a disability under the ADA, it deferred to
Amtrak's judgment that Shiplett posed a direct threat to the
safety of others because he took Xanax and was thus
unqualified to perform the job of locomotive engineer. The
Sixth Circuit did not review the objective reasonableness of
Amtrak's judgment or address Amtrak's failure to make an
individualized assessment before deciding that Shiplett posed
a direct threat to the safety of others. Instead, the appellate
court stated that it would defer to Amtrak's judgment and the
views of public safety agencies because "courts have little
expertise on this issue" (App. A, p. 20)
The appellate court was dismissive of Shiplett's request
for a reasonable accommodation of reassignment to another
position. The Sixth Circuit ruled that Shiplett did not meet his
burden of showing the existence of any vacant positions for
which he was qualified) There was no consideration given as
to whether Amtrak made any efforts to assist Shiplett on his
reasonable accommodation request. (App. A, p. 21-22). The
court also rejected the FELA claim, holding that Shiplett's
complained of physical injuries did not involve "traditional
common law concepts of physical impact." (App. A, p. 26-
27)
Shiplett then filed a petition for rehearing and
suggestion for rehearing en banc. The Sixth Circuit denied the
petition for rehearing (App. B) Thus, this petition has now
been filed
REASONS FOR GRANTING THE WRIT
THE SIXTH CIRCUIT'S DECISION THAT
PETITIONER POSED A DIRECT THREAT TO THE
SAFETY OF OTHERS UNDER THE ADA DIRECTLY
CONFLICTS WITH THIS COURT'S DECISION IN
BRAGDON v. ABBOTT THAT COURTS CANNOT
DEFER TO THE JUDGMENTS OF HEALTH CARE
PROFESSIONALS WITHOUT ASSESSING THE
OBJECTIVE REASONABLENESS OF THE
JUDGMENTS
A.
This Court's Decision in Bragdon Requires Lower
Courts to Assess The Objective Reasonableness Of Health
Care Professionals’ Judgments Without Deferring To
Their Individual Judgments.
This Court in Bragdon v. Abbott, 524 U.S. 624 (1998)
set forth specific requirements for the lower courts to follow
in assessing whether an individual with a disability under the
ADA poses a direct threat to the safety of others.’ The
plaintiff in Bragdon was a dental patient infected with human
immunodeficiency virus (HIV) who brought an ADA action
‘While Bragdon addressed the direct threat provision under
Title Hl of the ADA, this Court held that "[p]arallel provisions
appear in the employment provisions of Title | of the ADA, 42
USC. §§12111(3), 12113(b)." Bragdon, supra at 648-649
ayvainst her dentist Dr Bragdon for refusing to treat her in his
dental office /d at 629. Dr. Bragdon claimed that in his
judgment, treating the plaintiff in his office posed a direct
threat to the health and safety of others. The lower courts
found that Bragdon raised no genuine issue of material fact to
support the judgment that plaintiff's HIV infection posed a
direct threat under the ADA_ The trial court granted and the
appellate court affirmed summary judgment in favor of the
plaintiff /d. at 629-630
In reviewing what evidence supports a direct threat to
the health or safety of others standard under the ADA, this
Court first found the ADA requires that "a significant risk to
the health or safety of others" must be shown. /d. at 648-649
This Court's decision in Bragdon established the following
standard of review
"The existence, or non-existence, of a
significant risk must be determined from the
standpoint of the person who refuses the
treatment or accommodation, and the risk
assessment must be based on medical or other
objective evidence" /d. at 649
"As a health care professional, [Bragdon| had
the duty to assess the risk of infection based
on the objective scientific information available
to him and others in his profession. His belief
that a significant risk existed, even if
maintained in good faith, would not relieve
him from liability "| /d.
10
The Bragdon opinion specifies that Dr. Bragdon
"receives no special deference simply because he is a health
care professional." /d. This Court concluded that:
“courts should assess the objective
reasonableness of the views of health care
professionals without deferring to their
individual judgments." /d. at 650.
The Bragdon decision also sets forth explicit
guidelines for the lower courts to follow in assessing the
reasonableness of a health care professional's judgment on the
issue of direct threat under the ADA. First, the views of
public health authorities, while of special weight, are not
conclusive. /d. at 650. Second, the lower court's assessment
of the "available objective evidence" must only be based on
evidence that existed at the time the defendant refused to treat
the plaintiff /d. at 650-65]
B.
The Sixth Circuit's Decision In The Case At Bar
Directly Conflicts With This Court's Decision In Bragdon.
In the case at bar, the Sixth Circuit, after finding that
Shiplett was regarded by Amtrak as having a disability
covered by the ADA, committed palpable error in deferring to
Amtrak's defense that Shiplett posed a direct threat to the
safety of others. The Sixth Circuit held, in direct contradiction
with Bragdon, as follows
"Given that the courts have little expertise on
this issue, we conclude that the only
11
reasonable course is to defer to the
determination made by Amtrak and federal
agencies charged with transportation safety
that Shiplett's use of Xanax posed a significant
risk to the safety of others." (App. A, p. 20).
The Sixth Circuit did not assess the available objective
evidence, as required by Bragdon. The appellate court
deferred to the medical views of Amtrak's medical officer, Dr.
McLean. This Court's opinion in Bragdon, expressly
precludes the lower court from engaging in such deference.
The Sixth Circuit was required to assess the objective
reasonableness of the medical evidence available at the time
Dr McLean decided that Shiplett's taking of Xanax posed a
threat to the safety of others See Bragdon, supra at 650.
The Sixth Circuit's decision to defer to the views of
federal agencies also conflicts with this Court's holding in
Bragdon that views of public health authorities are "not
conclusive".* /d. at 650. The Sixth Circuit also violated the
holding of this Court in Bragdon by relying on the views of
federal agencies that were not available at the time Amtrak's
Dr McLean made the decision that Shiplett's use of Xanax
posed a direct threat to the safety of others.
‘Four Justices of this Court give even less weight to views
of public agencies in litigation between private parties. The
dissent in Bragdon observed there is "no provision of law or
judicial practice" that would permit courts to give scientific
views more credence than others simply because they have
been endorsed by a "politically appointed public health
authority." Bragdon, 524 U.S. at 663 (REHNQUIST, C.J.,
concurring and dissenting in part).
12
aie
The Bragdon opinion states that lower courts can only
assess and place reliance on the available objective evidence at
the time the complained of decision was made. Id. at 650-
651, 653. In the case at bar, that would be the decision by
Amtrak's Dr. McLean in September, 1994 to refuse to allow
Shiplett to return to work so long as he was taking Xanax
(App. A, p. 4-6).
The views of the Federal Railroad Administration
(FRA), which the Sixth Circuit relied upon, were not made
known until December 30, 1994. (App. A., p. 9). This was
well after Amtrak made its decision that Shiplett was a direct
threat to the safety of others because of his use of Xanax
Similarly, the National Transportation Safety Board did not
contact Amtrak about Shiplett's use of Xanax until January
1995. well after Amtrak made its decision.
Accordingly and consistent with Bragdon, any views
by these public agencies cannot be relied upon by the lower
court in the case at bar. Most significantly, Bragdon
preempted the Sixth Circuit from according any "special
deference" to Dr. McLean's judgments. There were no federal
regulations or published directives from any federal agency
that required Amtrak to exclude Shiplett or any person from
employment as a locomotive engineer solely because he was
taking Xanax. Amtrak made this decision on its own. (App
E, p. 20).
The Sixth Circuit's decision is in irreconcilable conflict
with Bragdon. The legitimacy of our federal judicial system
is predicated on lower courts following decisions of this
Court. To allow otherwise would invite chaos and cause ruin
to the very fibre of our judicial system. This Court's
13
intervention is now urgently needed to protect the integrity of
federal jurisprudence.
THE ADA PROHIBITS EMPLOYERS FROM
IMPOSING REQUIREMENTS OF ITS OWN
DEVISING EXCLUDING INDIVIDUALS FROM
EMPLOYMENT IN SAFETY SENSITIVE POSITIONS
SOLELY BECAUSE THEY TAKE CERTAIN
PRESCRIPTION MEDICATION, WITHOUT
CONDUCTING AN INDIVIDUALIZED ASSESSMENT
ON WHETHER THE INDIVIDUAL POSES A DIRECT
THREAT TO THE SAFETY OF OTHERS
Amtrak refused Kurt Shiplett reemployment as a
locomotive engineer solely because he was taking the
prescription medication Xanax. Amtrak claims it excluded all
individuals who take Xanax under any circumstances from
employment as locomotive engineers or any other safety
sensitive positions, because Xanax "might" cause adverse side
effects such as impairment of alertness or coordination.
It was undisputed Xanax affects individuals differently
and Xanax can have no side effects on certain individuals.
(App. E, p. 19). Amtrak did not know if Shiplett's use of
Xanax impaired his alertness or coordination. Amtrak never
individually assessed whether Shiplett's use of Xanax actually
caused him any side effects which would pose a direct threat
to the safety of others in the performance of his job as
14
locomotive engineer. (App. E, p. 12-14, 16-18).°
Amtrak cannot demonstrate that Shiplett posed a
direct threat to the safety of others without conducting an
individualized assessment of Shiplett's ability to safely perform
the job function of locomotive engineer. This Court held in
School Board of Nassau County v. Arline, 480 U.S. 273, 287
(1987), that an "individualized inquiry" is necessary as to
whether an employee posed a direct threat to the safety of
others, in order to prevent handicap discrimination based on
prejudice, stereotypes and generalized fears. This Court in
Arline found that:
"the fact that some persons who have
contagious diseases may pose a serious health
threat to others under certain circumstances
does not justify excluding from the coverage
of the Act a// persons with actual or perceived
contagious diseases." /d. at 285.
While the Ar/ine opinion addressed provisions of the
Rehabilitation Act, Congress relied on the same statutory
language in enacting the ADA. The ADA's direct threat
provision codifies Arline. See Bragdon v. Abbott, 524 US.
624, 649 (1998). The employment provision of Title I of the
ADA define a direct threat to mean a significant risk to the
health and safety of others that cannot be eliminated by
*Shiplett was regarded by Amtrak as having a disability
under the ADA. (App. A, p. 15). Shiplett was therefore a
"qualified individual with a disability" unless Amtrak proved
its defense that Shiplett's taking Xanax posed a direct threat.
See, 42 U.S.C. §§12102 (2)(c), §12111(8).
15
reasonable accommodation. 42 U.S.C. §12111(3). An
employer can raise as a defense to a charge of handicap
discrimination that an employee poses a direct threat to the
safety of others. 42 U.S.C. §12113(a)(b).
The Equal Employment Opportunity Commission
(EEOC) regulations implementing the provisions of the ADA,
set forth that:
"The determination that 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." 29 C_F.R. §1630.2(r)
The legislative history to the ADA also supports the
conclusion that there must be an individualized assessment.
Congress stated in its Committee Report that decisions as to
whether an individual poses a direct threat cannot be based on
generalizations but must be based on "the facts of an
individual case." The "direct threat" determination must be
based on “actual proof of significant risk to others" and on
“Objective evidence about the individual involved." Congress
noted that an employer may not refuse to hire an individual
simply because he or she "sought treatment for a mental
disorder." H.R. Rep. No. 101-485 (III), 101st. Cong. 2d
Sess. 45-46 (1990) reprinted in 1990 U.S.C.C_AN., pp. 468-
469
Just recently, this Court in Sutton v. United Airlines,
Inc., . US. ., 119 S.Ct. 2139, 2147 (1999)
emphasized, in the context of holding that a disability is
determined with reference to corrective measures, that the
16
ADA mandated an "individualized inquiry". This Court in
Sutton criticized the EEOC's directive that persons be judged
in their uncorrected state, holding that:
"[t]he agency approach would often require
courts and employers to speculate about a
person's condition and would, in many cases,
force them to make a disability determination
based on general information about how an
uncorrected impairment usually affects
individuals, rather than on the individual's
actual condition." /d. at 2147.
This Court held that an interpretation of the ADA which does
not treat persons as "individuals" runs "contrary to both the
letter and spirit of the ADA." /d.
This Court's analysis in Sutton applies with equal force
to the “direct threat" standard of the ADA. There is no
credible reason to require an "individualized inquiry" for
determining whether an individual has a "disability" under the
ADA yet not utilize the same standard in assessing whether an
individual poses a direct threat to the safety of others.
Amtrak imposed a blanket exclusion not required by
federal or state law which prohibited Shiplett and other
individuals from employment opportunities in safety sensitive
positions. This blanket exclusion runs directly contrary to the
individualized analysis so central to the ADA.
The Sixth Circuit held that Shiplett was unqualified for
safety sensitive positions solely based on his taking Xanax.
(App. A, p. 19-20). The Sixth Circuit endorsed Amtrak's
xe
blanket exclusion, devoid of any individualized inquiry.
Amtrak's medical officer made it clear that irrespective of an
individual's medical history, job performance, Xanax dosage
or actual effect Xanax has on a particular individual, Amtrak
excluded all individuals taking Xanax from working as
locomotive engineers. (App. E, p. 12-13, 18-19).
To achieve the goals of the ADA, the law must
recognize and accommodate the widespread and successful
use of psychotropic medication in today's society. See
Guiduli, The Threat To Safety Defense Standard And The Use
Of Psychotropic Medication Under Title | Of The ADA, 144
U. Pa L. Rev. 1149, 1181 (1996). The courts should not
permit employers to utilize the direct threat provision of the
ADA as a bulletproof shield to exclude all individuals taking
prescription medication from employment opportunities in
safety sensitive positions. Undoubtedly, this is a sensitive
matter that needs to be put to rest by this Court
THERE IS CONFLICT AND CONFUSION IN THE
LOWER COURTS REGARDING AN EMPLOYEE'S
BURDEN OF PROOF AND AN’ EMPLOYER'S
AFFIRMATIVE DUTY UNDER THE REASONABLE
ACCOMMODATION PROVISIONS OF THE ADA
There is a clear conflict among the Circuit Courts of
Appeals regarding the employee's initial burden of proof on
reasonable accommodation under the ADA and when that
burden shifts to the employer to show that a reasonable effort
to accommodate was made. In the case at bar, the Sixth
Circuit imposed an unduly restrictive standard, requiring an
18
employee requesting reassignment to another position to
establish as part of the initial burden of proof that there was a
vacant position for which he or she was qualified. (App. A, p.
21-22). The Sixth Circuit's opinion followed its published
precedent setting forth this standard. /d. See, Monette v.
Llectronic Data Systems Corp., 90 F.3d 1173, 1183 (6th Cir.
1996); Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir. 1997)
The Sixth Circuit is not without company in imposing
this restrictive standard. The Sth, 10th and | 1th Circuits have
held that an employee has the initial burden of identifying a
vacant position for which he or she is qualified. Employers
facing litigation in these circuits have no duty under the ADA
to engage in an interactive process to assist an employee in
identifying any vacant positions unless an employee first
identifies a vacancy. See, Willis v. Conopco, Inc., 108 F.3d
282, 285-286 (11th Cir. 1997); Moses v. American
Nonwovens, Inc., 97 F.3d 446, 448 (11th Cir. 1996); /aylor
v. Principal Financial Group, 93 F.3d 155, 165 (Sth Cir.
1996), White v. York International Corporation, 45 F.3d 357,
362-363 (10th Cir. 1995).°
The 3rd, 7th and 8th Circuits have held that an
employee requesting an accommodation of reassignment is not
required to identify a vacant position as part of the initial
burden of proof. These Circuit Courts have found that once
an employee makes a request for reassignment, an employer
°The 10th Circuit in a recent en banc decision has now
noted that an interactive process is frequently an essential
component of the statutory obligation to offer a reasonable
accommodation. See, Smith v. Midland Brake, Inc., 180 F.3d
1154, 1172, fn. 10 (10th Cir, 1999).
19
has the burden of showing that it engaged in an interactive
process and made reasonable efforts to assist in the search for
appropriate reasonable accommodations. Hendricks-
Robinson v. Excel Corp., 154 F.3d 685, 694-695 (7th Cir.
1998), Baert v. Luclid Beverage, Lid., 149 F.3d 626, 632-634
(7th Cir. 1998): /jellestad v. Pizza Hut of America, Inc., 182
F 3d 609, 617 (8th Cir. 1999); Zaylor v. Phoenixville School
District, 174 F.3d 142, 157 (3rd Cir. 1999); Mengine v.
Runyon, 114 F.3d 415, 420 (3rd Cir. 1997).
A request as straight forward as asking for continued
employment is a sufficient request for accommodation to
trigger the employer's duty under the ADA to engage in an
interactive process. The ADA then places a duty on the
employer to ascertain whether there is some job that the
employee might be able to fill. Hendricks-Robinson, supra,
Miller v. Illinois Department of Corrections, 107 F.3d 483,
486-487 (7th Cir. 1997)
In many cases, an employee will not have the ability or
resources to identify a vacant position absent participation by
the employer. Mengine, 114 F.3d at 420. The 10th Circuit in
a recent en banc decision similarly found that once an
employee asked the employer to return to work in some
Capacity, a genuine issue of material fact may be raised as to
whether the employer engaged in reasonable accommodation
under the ADA. See, Smith v. Midland Brakes, 180 F.3d
1154, 1173 (10th Cir. 1999) The 10th Circuit in Smith made
the following observation
“The employer is in the best position to know
which jobs are vacant or will become vacant
within a reasonable period of time." /d.
20
The 9th Circuit has issued seemingly conflicting
opinions on the issue of reasonable accommodation. In
Barnett v. U.S. Air, Inc., 157 F.3d 744, 749-750 (9th Cir.
1998), the Circuit Court followed the 6th and 1 1th Circuit line
of cases that an ADA plaintiff has the initial burden of
showing the existence of a vacant position that he or she could
perform. Only then does the burden shift to the employer to
make a reasonable effort at accommodation. /d. at 752-753.
Yet only two weeks earlier, the 9th Circuit held that once an
employee suggests an accommodation, the employer has a
duty to make a reasonable effort to identify an
accommodation. See, Mustafa v. Clark County School
District, 157 F.3d 1169, 1176-1177 (9th Cir. 1998).
The 2nd Circuit has employed a slightly different
standard in balancing the employee's initial burden of proof
and the employer's duty to make a reasonable effort to identify
an accommodation. The 2nd Circuit requires that the plaintiff
must merely "suggest the existence of a particular plausible
accommodation" which the defendant must then show is
unreasonable. Stone v. City of Mount Vernon, 118 F.3d 92.
98 (2nd Cir. 1997).
The letter and spirit of the ADA strongly militate in
favor of the approach taken by the 3rd, 7th and 8th Circuits.
The ADA provides that no employer shall discriminate against
a qualified individual with a disability by not making
reasonable accommodations unless the employer can
demonstrate the accommodation would impose an undue
hardship. 42 U.S.C. §12112(b)(5)(A). The ADA defines
"reasonable accommodation" to include reassignment to a
vacant position for which the employee is qualified. 42 U.S.C.
§12111(9)(B). An employer asserting the "direct threat"
21
defense of the ADA must show that the direct threat "cannot
be eliminated by reasonable accommodation." 42 U.S.C.
§§12111(3), 12113(b).
The legislative history to the ADA reflects Congress'
intent that the employer and employee shall interact with one
another to assess the availability of a reasonable
accommodation. H.R. Rep. No. 101-485 (II), 101st Cong.
2nd Sess. 65-67 (1990), reprinted 1990 U.S.C.C.A.N. pp.
348-349. The EEOC regulations similarly recognize the need
for the employer to initiate an informal interactive process
with the employee to assess the availability of a reasonable
accommodation. 29 C.F.R. §1630.2(0)(3).
There nevertheless is a deep split among the Circuit
Courts of Appeals on an employee's initial burden of showing
a reasonable accommodation and the employer's
corresponding duty to show it made reasonable efforts to
identify a reasonable accommodation. This tension is
especially pronounced where the ADA plaintiff requests an
accommodation of reassignment to another position, but is
unable to identify a specific vacancy.
In the case at bar, the Sixtn Circuit rejected Shiplett's
claim of reasonable accommodation because he did not
identify any vacant positions for which he was qualified. Even
though Shiplett had requested to return to work in another
position, the court did not place any burden on the employer
to make reasonable efforts to assess the availability of a vacant
position. The Sixth Circuit places an overly onerous burden
on ADA plaintiffs, which is in tension with decisions of other
Circuit Courts of Appeals.
22
This issue has been fully developed before the Circuit
Courts of Appeals. The conflict among the circuits is
confusing and chaotic for both employers and employees alike.
Employees and employers in different regions of the country
are subject to divergent protection and duties under the ADA.
This Court's guidance in this area is urgently needed.
IV
THERE IS CONFUSION ON WHETHER THIS
COURT'S OPINION IN GOTTSHALL PRECLUDES
ALL NEGLIGENCE CLAIMS UNDER FELA FOR
PHYSICAL AND EMOTIONAL INJURIES UNLESS
THE EMPLOYEE SUSTAINS A PHYSICAL IMPACT
BY A PHYSICAL OBJECT
Shiplett brought a claim under the Federal Employer's
Liability Act (FELA), 45 US.C. §5] alleging that Amtrak
negligently caused him physical and emotional injuries. At
trial, Shiplett presented evidence that Amtrak negligently
instructed him to Stop taking Xanax immediately and he
suffered physical injuries as a result. The physical impact,
however, was not caused by any physical object.
The Sixth Circuit concluded that the physical injuries
complained of by Shiplett did not constitute actionable injuries
under FELA. The Sixth Circuit held, relying on its en banc
decision in Szymanski v. Columbia /ransportation Co., 154
F.3d 591, 593 (6th Cir. 1998), that this Court's decision in
Consolidated Rail ( orp. v. Gottshall, §12 U.S. 532 (1994)
did not permit a FELA recovery for Shiplett's physical injuries.
The appellate court recited its position in Szymanski that
-
Gottshall should be interpreted as “encompassing traditional
23
common law concepts of physical impact." (App. A, p. 26-
27). This interpretation of Gottshall requires that an
employee must show "actual impact by a physical object or
being in the zone of danger for such an impact." Szymanski,
154 F.3d at 594.
The Gottshall opinion cannot be read that narrowly.
This Court in Gottshall was concerned that recognition of a
FELA cause of action for emotional injury, when not related
to any physical trauma, may inundate judicial resources with
a flood of trivial claims. Gottshall, 512 U.S. at 545. The
(;ottshall decision limited recovery for emotional injuries
arising in the ordinary course of employment ("too much
work") as distinguished from a situation in which a plaintiff
was given "too dangerous" work. /d. at 558.
There is no mention in Gottshall that recovery for
emotional distress caused by a railroad carrier's negligence is
limited to instances where employees suffered physical impact
by a physical object. Quite the contrary, this Court in
Gottshall cited its prior decision rejecting the argument that
FELA only covers injuries caused by accidents. /d. at 543,
cing Urie v. Thompson, 337 U.S. 163, 181 (1949).
The Sixth Circuit has grossly misinterpreted this
Court's decision in Gottshall, thereby severely and unduly
restricting a railroad employee's rights to seek a remedy for
negligent conduct in the workplace. This impacts an entire
class of railroad workers as well as workers at sea. See
Szymanski, 154 F.3d at 592 (applying the Gottshall decision
to negligence claims under the Jones Act).
There was a sharp division in the Sixth Circuit
24
regarding the application and interpretation of Gottshall. The
dissenting opinion to the en banc ruling in Szymanski correctly
stated that Gottshall did not limit recovery for negligent
infliction of physical injuries and only foreclosed negligent
infliction of emotional distress claims "for too much work as
opposed to too dangerous work." /d. at 598-599.
Other Circuit Courts have expressed uncertainty
regarding the scope of this Court's opinion in Gottshall. The
3rd and 7th Circuits were unclear over whether Gottshall
required a showing of a risk of physical harm or risk of
physical impact in the absence of actual physical impact.
Bloom v. Consolidated Rail Corporation, 4\ F.3d 911, 914-
91S (3rd Cir. 1994): Marschand v. Norfolk and Western
Railroad Co., 81 F.3d 714, 715 n.1 (7th Cir. 1996). The
Third Circuit in B/oom expressed its hope that this Court will
clarify these issues in its next FELA emotional distress case
Id. at 915
In the case at bar, Shiplett suffered a physical impact -
headaches, shakiness, insomnia and nausea- as a result of
Amtrak's negligence. Shiplett also was in fear of physical
harm-risk of seizures-as a result of Amtrak's negligent
instruction to stop taking Xanax immediately. The negligent
conduct Amtrak subjected Shiplett to falls within the rubric of
"too dangerous" work.
The time is now ripe for this Court to review and clear
up any confusion in the Circuit Courts surrounding its opinion
in Gottshall. This petition presents the appropriate vehicle to
resolve any such misconceptions. This Court's guidance is
critical to preserve the humanitarian purpose of FELA
tempered by the recognition that an employer should not be
25
made the insurer of every imagined trivial claim
CONCLUSION
There are compelling reasons raised herein for this
Court to exercise its jurisdiction and review the questions
presented in this petition. These Federal law questions
address important, real life employment concerns faced by
employees and employers alike across the nation. This
Court's guidance on these issues is critically needed. For all
the foregoing reasons, Petitioner Kurt D. Shiplett respectfully
prays that Certiorari be granted
Respectfully submitted.
Jaimie R. Goodman
Law Offices of Jaimie R. Goodman
Counsel for Petitioner
See reiantiae
Table of Appendix Contents
6TH CIRCUIT FILINGS:
Final Opinion,
snornpusiec tekusics-t CU REE Oe Oe Ta A1l-A27
Order Denying Peitition for Rehearing,
sci asd cig Oe B1-B]
EASTERN DISTRICT OF MICHIGAN FILINGS:
Judgment on Jury Verdict,
sn ic si using dE RP a C1-C2
Order Denying Defendant’s Motion
For Judgment As A Matter of Law
or In The Alternative, A New Trial.
oe ovo ee cn ck occ wx, D1-D2
Excerpts of Trial Proceedings:
bscs Mh . Msrinie csi dhe ee ae E1-ES
‘ica ke. Kiksinca Ae re £6-E9
Niet Rak «i E10-E21
STATUTES AND REGULATIONS:
Title 28, U.S.C. §1331, §1254 ......00 0 FI-F]
Title 42, U.S.C §12102(2)(c) .... 0.00 F2-F2
Title 42, U.S.C. §12111(3),(8)&(9) ... 00 F3-F4
Title 42, U.S.C. §12112(a),(by\(1)(5)(A) 2... F5-F5
Title 42, U.S.C. §12113(a)-(b) ............. F6-F6
Tae 5, USCS... .. F7-F7
29 CFR, §1630.2 (0)(r) ................. F8-F9
dy OO
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 24
N°. 97-2056
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KURT D. SHIPLETT, :
Plaintiff-Appellant, | ON APPEAL from the
United States District
Court for the Eastern
District of Michigan
NATIONAL RAILROAD
PASSENGER CORPORATION,
D/B/A AMTRAK, -
Defendants-Appellees:.
Before: KENNEDY, DAUGHTREY, and CLAY:
Circuit Judge:
MARTHA C. DAUGHTREY, Circuit Judge.
After an eight-day trial, a jury returned a
general verdict of $500,000 in favor of the plaintiff, Kurt
Shipiett, based on his claims brought under the Americans
with Disabilities Act, the Rehabilitation Act of 1973. the
Michigan Handicappers’ Civil Rights Act, and the Federal
Employer's Liability Act (FELA). The defendant, National
Railroad Passenger Corporation (Amtrak), appeals the
district court’s denial of its motion for judgment as a matter
Apdx. A - |
of law (or. in the alternative. a new trial) and the court’s
entry of judgment on the jury verdict. For the reasons
which follow, we conclude that the district court erred in
denying Amtrak’s motion, and we therefore vacate the
judgment entered below and enter judgment in favor of
defendant Amtrak.
PROCEDURAL AND FACTUAL BACKGROUND
Kurt Shiplett began his employment with
Amtrak in September 1986. In 1990, he was promoted to
the position of locomotive engineer. On September 15,
1994, while working as the locomotive engineer on a
passenger train, he overshot the stopping point on the
passenver platforms at three different stations. The first two
times, he missed the platform by one to one and one-half
car lengths, which the plaintiff and other Amtrak employees
attributed to mechanical problems. Shortly after noon,
however, Shiplett overran the third stop, in Jackson,
Michigan, by the entire length of the train, which consisted
of seven cars plus the locomotive. Although the plaintiff
continued to operate the train without incident to its
destination, his supervisor was later disciplined for allowing
him to continue after the Jackson incident. The supervisor
later testified that Shiplett said that he was tired and had
made a mistake in judgment. At the time of this incident,
the plaintiff was working as an “extra-board engineer,"
which meant that he was on-call for duty, and therefore
subject to federal regulations and collective bargaining
Apdx. A - 2
i ee Se a i
ee
EE’”-~ Ol
agreement requirements regarding the amount of time an
engineer must e given to rest between assignments.
Accordingly, Shiplett had been off duty at least 24 hours
before his shift began on September 15.
In Overshooting the Passenger platform,
Shiplett violated Amtrak’s operating rules, and was
therefore required to submit to a "reasonable Suspicion"
drug and alcohol screen, in accordance with Amtrak policy.
He tested positive for benzodiazepine, a class of drugs that
includes Xanax, a drug that Shiplett had been taking
ostensibly to alleviate a sleep disorder. However, Xanax is
a highly addictive drug, usually Prescribed for the treatment
Of anxiety and panic attacks, which. as it turned out.
Shiplett was also experiencing. Its potential side effects
include drowsiness, memory impairment. light-headedness.
and impaired coordination. Dr. Robert McLean, Amtrak’s
medical advisor, testified that the average duration of side
effects from Xanax is approximately 11.5 hours. but that the
effects can last for up to 26 hours after ingestion.
However, Dr. McLean also admitted that Xanax can have
no side effects on some individuals.
Shiplett maintained that he had been
Prescribed Xanax in 1992, at a dosage of .25 milligram at
bedtime. He had reported this Prescription on a 1992
employee form that his supervisor Saw, but which was not
sent to Dr. McLean’s office. Another medical report
resulting from an Amtrak physical examination indicated
that he was taking Xanax as carly as 199] and had been
Apdx. A - 3
advised by a Dr. Massan at that time that he was "not
allowed to operate motorized vehicle" while taking Xanax.
By 1994, he had nevertheless increased his daily dosage
from .25 to 1.0 milligram of Xanax, a four-fold increase.
Shiplett was removed from service the same
day as the overshooting incidents, which were reported the
following day to Dr. McLean. McLean was required to
determine whether the Xanax was in Shiplett’s system
"legitimately" and also to determine whether the drug might
have c’Aused Shiplett to miss three station stops on
September 15. He testified that when he spoke with
Shiplett on September 19, Shiplett told him that he had felt
extremely drowsy on September 15 and that he did not
recall overshooting the train stations. During that
conversation, Shiplett also informed Dr. McLean that during
his last physical examination, conducted on September 23,
1992, he had indicated that he was taking Xanax on
Amtrak’s medical examination form and had so advised the
Amtrak physician. Shiplett testified that Dr. McLean told
him, around September 20, that if he wanted to return to
work, he had to stop taking Xanax immediately. He further
testified that he followed that advice and suffered
headaches, shakiness, insomnia, and nausea as a result. Dr.
McLean disputed this version of events at trial, testifying
that he advised Shiplett to contact his personal physician
immediately so that he could be supervised in withdrawing
slowly from the drug over a two to three week period.
Apdx. A - 4
Shiplett. maintained at trial that an
unidentified Amtrak physician had told him that he could
take Xanax at bedtime without impairing his work as a
locomotive engineer the following day. He also testified
that he had verbally informed one or more of his
supervisors that he was taking Xanax and that they
authorized him to continue taking the medication, "as long
as it had been prescribed by a doctor." However, Dr.
Gallant, a physician who saw the plaintiff on September 27,
less than two weeks after the overshoot incident. advised
Shiplett "that he [should] refrain from ever taking this
medication" and told Shiplett that he should "talk to Dr.
McLean about getting off the Xanax slowly rather than
suddenly stopping using it."
McLean testified that the medical director’ s
office did not have copies of any of Shiplett’s physical
examinations at the time of the incidents that led to
Shiplett’s suspension, that he was unaware that Shiplett
Was taking Xanax, and that he would not have authorized
him to use the drug.
After telephoning the plaintiff's personal
physician, Dr. May, to confirm that he had prescribed
Xanax to Shiplett, Dr. McLean determined that the Xanax
found in Shiplett’s system was there ‘legitimately" and
therefore treated the September 15 drug test as a negative
result. As a result, Shiplett was not required to give a clean
urine sample within 30 days or to enter an employee
assistance program, as usually required under company
Apdx. A - 5
policy after a negative drug test result. However, Dr.
McLean concluded that the Xanax might have contributed
to Shiplett’s "significant operational error" and, on
September 22, 1994, he temporarily disqualified the
plaintiff from working as a locomotive engineer until he
discontinued the use of Xanax.
After receiving Dr. Gallant's report on his
September 27 fitness-for-duty examination of Shiplett, Dr.
McLean formally reinstated the plaintiff to his position as
locomotive engineer on the condition that he not take Xanax
or medication with similar side effects and that he report to
his supervisor whenever he felt too drowsy to work.
Shiplett testified, however, that when he spoke with Dr.
McLean after Dr. Gallant's examination to clarify whether
he should gradually discontinue the Xanax and to ask
whether he could work as a conductor or an assistant
conductor, Dr. McLean accused him of being a drug abuser
and recommended that he speak with a drug counselor.
McLean denied that this conversation ever took place.
On November 11, 1994, Shiplett’s
psychiatrist, Dr. Matossian, provided a written report to Dr.
McLean stating that he was treating the plaintiff for panic
attacks and depression and indicating the medications the
plaintiff was taking. which did not include Xanax. The
letter further stated that the plaintiff was fit to resume all of
his previous work activities. In response, Dr. McLean
determined that Shiplett could return to work without
restrictions. On November 23, 1994, the plaintiff submitted
Apdx. A - 6
ver
MC 2
as 2 ee ee ee
to a return-to-work physical in accordance with the terms of
the governing collective bargaining agreement between
Amtrak and the Brotherhood of Locomotive Engineers.
Shiplett’s urine tested positive for Xanax. His explanation
was that he had forgotten his new medications while on
vacation and therefore. three days before the test, had taken
some Xanax that he had with him.
Because the drug test was positive, under
Amtrak’s policy and the terms of the collective bargaining
agreement, Shiplett was required to meet one of two
requirements before returning to work: (1) provide a
negative urine sample within 30 days of the positive result:
or (2) enter Amtrak’s Employee Assistance Program within
30 days. Amtrak informed the plaintiff of these options by
letter dated November 29, 1994. Dr. McLean also called
Dr. Matossian in early December to discuss the plaintiff's
options. Shiplett did not respond to the drug notification
letter.
On December 23, 1994, Dr. Matossian sent
Amtrak a letter Stating that Shiplett would be "off work
indefinitely." On January 5, 1995, Amtrak sent the plaintiff
a formal notice that it had begun an investigation and had
scheduled a hearing regarding his violation of Amtrak rules
in failing to respond to the November 29 drug notification
letter, in accordance with the company’s labor agreements.
At some point in January, the plaintiff was hospitalized for
eight days for mental health reasons. On January 26, 1995.
Dr. McLean sent the plaintiff and Dr. Matossian a letter
Apdx. A - 7
informing them that the hearing would be indefinitely
postponed and that he had arranged for a waiver of
Amtrak’s drug policy to allow Shiplett to obtain treatment
from Dr. Matossian instead of being treated in the
company’s Employee Assistance Program. Shiplett did not
take any action in response or compliance with the
suggestions of that letter.
In early 1995, Shiplett’s wife completed an
application on his behalf for disability benefits from the
Railroad Retirement Board. The application, which was
signed by the plaintiff's father on his behalf and submitted
along with a report from Dr. Matossian, represented that
between May 1991 and September 1994, the plaintiff had
suffered from "fatigue, confused [sic], insomnia, fear of
losing control of oneself/crazy, lack of concentration, panic
attacks." The application acknowledged that Amtrak had
not medically disqualified Shiplett from working, but stated
that he had been unable to work since September 15, 1994,
because of his condition. The Railroad Retirement Board
awarded him monthly benefits, and Amtrak transferred him
to a disability retirement status, both effective as of
September 15, 1994.
On April 6, 1995, Amtrak sent Shiplett a
letter explaining the process of requesting a reasonable
accommodation, specifically detailing the necessity for
documentation of his disability prepared by his physician
along with specifications regarding restrictions or limitations
on his activities. Shiplett did not respond to that letter and
Apdx. A - 8
NE
later testified that he was unable at that point to return to
Work or respond to the letter. Dr. McLean spoke to the
: plaintiff again on July 11, 1995, at which time the plaintiff
i Stated that he was only interested in the position of
locomotive engineer and that he would "drop his
discrimination charges against Amtrak if it would drop the
charges against him." Shiplett claimed that he orally asked
Dr. McLean towards the end of the September 1994
Whether he tould work as a conductor or assistant
conductor. Dr. McLean had no recollection of that
conversation.
Two federal agencies were also involved in
Shiplett’s situation. Dr. McLean had Previously testified
before the National Transportation Safety Board, after a
serious accident in late 1992, that Amtrak did not allow
engineers to operate trains while taking Xanax. The Board
later made a specific recommendation that Amtrak develop
programs to ensure that engineers would not take drugs
such as benzodiazepines and barbiturates. Upon being
contacted by Shiplett, who was asking about the
permissibility of using Xanax, the senior toxicologist at the
Board called Dr. McLean to reiterate the Board’s position
that Amtrak should not permit engineers to use Xanax
because the side effects could last 10-14 hours. The
Federal Railway Administration also investigated the
Shiplett matter in response to a Congressional request. On
December 30, 1994. the Administration issued a letter
concluding that Dr. McLean’s actions were consistent with
Apdx. A - 9
49 C.F.R. Part 219.103, which “requires medical officers to
ensure that medications used by employees are consistent
with the safe performance of the employee's duties."
On February 20, 1995, the plaintiff filed a
claim of disability discrimination with the EEOC. When
the f:OC found no reasonable basis to support it and
issued a right-to-sue letter, Shiplett then field this action
avainst Amtrak, alleging that Amtrak had discriminated
avainst him on the basis of a disability or perceived
disability. in violation of the Americans with Disabilities
Act. 42 U.S.C. &$ 12101 etseg.. the Rehabilitation Act of
1973. 29 U.S.C. §§& 794, et_seg.. and the Michigan
Handicappers’ Civil Rights Act. Mich. Comp. Laws Ann.
37.1101. et_seg.” He also alleged that Amtrak had
discriminated ayainst him tn retaliation for his allegations of
discrimination, in violation of § 602(a) of the Michigan
Handicappers’ Civil Rights Act. His third claim alleged
that Amtrak negligently caused him physical and emotional
injuries. thereby violating the FELA, 45 U.S.C. §§ 51 et
seq.
In addition to the evidence discussed above,
Shiplett also presented evidence that he sustained losses of
$60.000 ner year in lost wages, which totaled $180,000 at
the time of trial. He calculated future lost wages at $1.5
In 1998. after the plaintiff filed this action, the
Michigan state legislature changed the name of this statute
to "Persons with Disabilities Civil Rights Act.”
Apdx. A - 10
ee
million and lost benefits as $166,000. Amtrak did not
present evidence on economic damages. At the close of the
plaintiff's case, Amtrak moved for judgment as a matter of
law on all claims. The district court denied that motion.
Following a charge conference that was not transcribed, the
trial judge instructed the jury. In doing so, he declined to
vive five instructions requested by Amtrak and also declined
to use special verdict forms that had been submitted both
parties. relying instead on 4 general verdict form that did
not separately reference the plaintiff's individual claims.
The jury returned a general verdict in favor of the plaintiff
and awarded damages of $500.QQ0. Amtrak made a timely
post-trial motion on judgment as a matter of law. or in the
alternative, a new trial. Which the district court denied.
This appeal followed.
DISCUSSION
Disability Discrimfination Claim
Amtrak contends that the district court erred
in denying its motion for judgment as a matter of law on
the plaintiff's disability discrimination claims. retaliation
claim, and FELA claim. We review de novo the disposition
ee Mtn
Such a judgment may be rendered only when no reasonable
Apdx. A - II
.
weigh the evidence, evaluate the credibility of the witnesses,
or substitute our judgment for that of the jury. See K&T
Enters. Inc. vs. Zurich Ins. Co., 97 F.3d 171, 175-76 (6th
Cir. 1996). Instead, we are required to view the evidence
in the light most favorable to the non-moving party and
give that party the benefit of all reasonable inferences. See
id. at 176. We will reverse a district court’s denial of such
a motion only if reasonable minds could not come to a
conclusion other than one in favor of the movant. See id.
The plaintiff's disability discrimination claim
is brought under the Americans with Disabilities Act, 42
U.S.C. §§ 12101, et_seg., the Rehabilitation Act of 1973,
29 U.S.C. §§ 794, et_seg., and the statute then known as
the Michigan Handicappers’ Civil Rights Act, Mich. Comp.
Laws Ann. §§ 37.1101, et_seg. By statute, the standards
governing ADA cases also apply to Rehabilitation Act cases
alleging employment discrimination. See McPherson _v.
Michigan High Sch. Athletic Ass’n., Inc., 119 F.3d 453,
460 (6th Cir. 1997) (en banc)(explaining that principle
distinction between the two statutes is that coverage under
the Rehabilitation Act is limited to entities receiving federal
financial assistance, while ADA’s reach extends to purely
private entities); Burns v. City of Columbus, 91 F.3d 836,
842 (6th Cir. 1996)(citing 29 U.S.C. § 794(d)). Similarly,
resolution of the federal disability claims generally will also
resolve claims raised under the Michigan statute, which
essentially tracks federal law. See Cassidy v. Detroit
Edison Company, 138 F.3d 629, 634 n.3 (6th Cir.
Apdx. A - 12
a
Hao SE ha aa a i
1998)(citing Monette v. Electronic Data Sys. Corp.. 90 F.3d
1173, 1178 n.3 (6th Cir. 1996), and Ashworth v. Jefferson
Screw Products, Inc.. 440 N.W.2d 101, 104-05 (Mich. Ct.
App. 1989)).
The ADA mandates in relevant part that:
No covered entity s hall discriminate against a
qualified individual with a disability because of the
disability of such individual in regard to job
application procedures. the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms. conditions, and privileges
of employment.
4Z UBC. § 12112(a)(1994). Under the ADA and the
Rehabilitation Act, a plaintiff may prove that he was
discriminated against based upon his disability either
through direct evidence or indirect evidence. See Monette.
90 F.3d at 1178. The latter method involves the burden-
shifting approach first articulated in McDonnel Douglas
Corp. v. Green, 41] U.S. 792, 802-03 (1973). Because
Shiplett has presented no direct evidence that he was
discriminated against because of a disability or a perceived
disability, he can rely only on indirect evidence.
To recover on a claim of discrimination
brought under the ADA or the Rehabilitation Act using
indirect evidence, an employee must first make out a prima
facie case of discrimination by establishing that (1) he was
Or was perceived to be handicapped within the definitions
Apdx. A - 13
of each of the acts; (2) he was otherwise qualified to
perform the essential functions of the job, with or without
reasonable accommodation: (3) he suffered an adverse
employment decision; (4) the employer knew or had reason
to know of the plaintiff's disability; and (5) the employer
replaced him. See Monette, 90 F.3d at 1186. Under the
Rehabilitation Act, the plaintiff must also show that Amtrak
receives federal funds. See id. at 1178 n.4.
If the plaintiff successfully establishes a
prima facie case, that creates a mandatory presumption of
discrimination and the burden shifts to the employer to
proffer a legitimate, non-discriminatory reason for
discharging the employee. See Smith v. Chrysler Corp.,
155 F.3d 7799, 805 (6th Cir. 1998). If the defendant shows
a non-discriminatory reason, the mandatory presumption
becomes a permissive inference, and the burden shifts back
to the plaintiff to show by a preponderance of the evidence
that the employer's proffered reason for discharge was
actually a pretext intended to hide unlawful discrimination.
See id.
On appeal. Amtrak disputes that Shiplett has
met his burden with respect to the first two elements of his
prima facie case. In order to recover on his disability
discrimination claim, Shiplett must first establish as part of
his prima facie case that he was or was perceived to be
handicapped within the definitions of each of the acts, at the
time of Amtrak’s allegedly discriminatory act. An
employee can prove he has a disability by showing he has
Apdx. A - 14
+ ee
a physical or mental impairment that substantially limits one
or more major life activities, that he had a record of such
an impairment, or that he was perceived as having such an
impairment. 42 U.S.C. § 12102(2).
Shiplett’s complaint alleged that Amtrak
discriminated against him because the company regarded
him as having a disability or because he had a disability.
However, at trial Shiplett maintained that he was not
disabled from September 15, 1994. through mid-December
1994, but that Amtrak regarded him as having a disability
during that time.
The applicable regulations provide three ways
in which a plaintiff can show that he is "regarded" as
having a disability:
(1) The individual may have an impairment which
is not substantially limiting but is perceived by the
employer ... as constituting a substantially limiting
impairment;
(2) the individual may have an impairment which
is only substantially limiting because of the attitudes
of others toward the impairment: or
(3) the individual may have no impairment at all
but is regarded by the employer ... as having a
substantially limiting impairment.
29 C.F.R. App. § 1630.2(1). As we have previously
explained, to prevail on a "regarded as" disabled
discrimination claim, a "plaintiff must show that the
perceived impairment is a substantial limitation on a major
Apdx. A - 15
life activity.” Kocsis v. Multi-Care Management, Inc., 97
F.3d 876, 885 (6th Cir. 1996). The term "substantially
limits’ means an inability to perform or a significant
restriction on the ability to perform as compared to the
average person in the general population." Cassidy v.
Detroit Edison Co.. 138 F.3d 629, 633 (6th Cir.
1998)(citing 29 C.F.R. § 1630.2G)(1)). "Major life
activities’ include “functions such as caring for oneself,
performing manual tasks. walking, seeing. hearing,
speaking, breathing, learning, and working.” Id. (quoting
29 C.F.R. § 1630.2(1)).
Shiplett argues that the evidence was
sufficient for a reasonable jury to find that the defendant
regarded or "perceived" him as having a_ substantially
limiting disability -- specifically drug addiction and mental
illness. The ADA provides protection for employees who
are erroneously regarded as being current illegal drug users.
See 42 USC. § 12114(b)(3)(excluding — erroneous
perception of illegal drug use from being disallowed as a
disability under § 12114(a)): Buckley v. Consol. Edison Co.
of New York, Inc.. 127 F.3d 270, 273 (2d Cir.
1997\(stating that committee reports in the ADA’s
legislative history make clear that ""[i]n removing protection
for persons who currently use illegal drugs, the Committee
does not intend to afiect coverage for individuals who have
a past drug problem or are erroneously perceived as having
a current drug problem’")(quoting H.R. Rep. No. 101-
485(11), at 77 (1990)), vacated en banc on other grounds,
Apdx. A - 16
———————————————————
135 F.3d 150 (2d Cir. 1998): Collings v. Longview Fibre
Co., 63 F.3d 828, 831-32 (9th Cir. 1995)(stating that the
ADA protects "individuals who are erroneously regarded as
using drugs when in fact they are not")(citing § 121 14(b)).
Although Shiplett presented evidence at trial that Dr.
McLean made statements indicating his perception that
Shiplett was "mentally unstable" and addicted to the
prescription drug Xanax, he was also required to show that
Amtrak believed that the perceived mental instability and
drug addiction were severe enough to substantially limit one
or more of his major life activities. Shiplett has not
explicitly stated what major life activities Amtrak regarded
as substantially limited by these perceived impairments,
although his contention seems to be that Amtrak regarded
his ability to perform his duties as an engineer, and perhaps
a conductor, a position that he testified that he requested as
an accommodation, as being substantially limited.
Several circuits have held that "an employer
does not necessarily regard an employee as handicapped
simply by finding the employee to be incapable of
satisfying the singular demands of a particular job." Byrne
\. Board of Education. 979 F.2d 560. 567 (7th Cir.
1992\(quoting Forrisi v. Bowen. 794 F.2d 931, 934 (4th
Cir. 1986)), cited with approval in Kocsis. 97 F.3d at 885.
Indeed. the applicable regulations provide that "[t]he
inability to perform a single, particular job does not
constitute a substantial limitation in the major activity of
working.” 29 C.F.R. § 1630.2(j)(3)(i); see also Sutton v.
Apdx. A - 17
United Air Lines, Inc., 130 F.3d 893, 904 (10th Cir.
1997)(citing 29 C.F.R. § 1630.2(j)(3)G)), cert. granted, 119
S.Ct. 790 (1999). Rather, in order to establish a disability
under the "regarded as" prong of the ADA with respect to
the major life activity of working, the plaintiff must show
that his employer regarded him as having an impairment
that creates a "significant|] restrict{ion] in the ability to
perform either a class of jobs or a broad range of jobs in
various classes as compared to the average person having
comparable training, skills and abilities." 29 C.FLR. §
1630.2())(3)Q); see also Sutton, 130 F.3d at 904 (quoting 29
C.b.R. § 1630.(2)G)(3)G)); Bolton v. Scrivner, Inc., 36 F.3d
939, 942 (10th Cir. 1994)(same). A "class of jobs" is
defined as "[t]he job from which the individual has been
disqualified because of an impairment, and the number and
types of jobs utilizing similar training, knowledge, skills or
abilities, within that geographical area, from which the
individual is also disqualified because of the impairment."
29 CLELR. § 1630.2(j)(3)(1)(B); see also Sutton, 130 F.3d at
904 (quoting 29 C.FLR. § 1630.24)(3)0i)(B)). Applying
this law to Shiplett's case and drawing all reasonable
inferences in his favor, we conclude that he has established
that Amtrak regarded him as having a disability that
substanually limited the major life activity of work, because
the evidence suggests that McLean thought he was
substantially limited in his ability to perform any of a broad
range of safety-sensitive jobs.
Apdx. A - 18
ee
Thus, we must consider whether Shiplett
established that he was "otherwise qualified" to perform the
essential functions of the locomotive engineering job, in
satisfaction of the second element of his prima facie case.
A “qualified individual with a disability" within the
meaning of §12112(a) is defined as "an individual with a
disability who, with or without reasonable accommodation,
can perform the essential functions of the employment
position that such individual holds or desires." 42 U.S.C.
§ 12111(8). "A disabled individual, however. is not
‘qualified’ for a specific employment position if he or she
poses a ‘direct threat’ to the health or safety of others
Which cannot be © eliminated by a reasonable
accommodation." Mauro v. Borgess Medical Center. 137
"3d 398, 402 (6th Cir. 1998)(citing 42 U.S.C. § 12111(3)
and Doe v. University of Maryland Medical System Corp..,
50 F.3d 1261, 1265 (4th Cir. 1995)). Furthermore. the
“direct threat" standard applied in the Americans With
Disabilities Act is based on the same standard as ‘significant
risk” applied by the Rehabilitation Act." Id. (citing HLR.
Rep.No. 101-485, pt. 3 at 45 (1990). reprinted in 1990
U.S.C.C.A.N. 445, 468; University of Md., 50 F.3d at 1265
N.9: and Doe v. District of Columbia, 796 F.Supp. 559, 567
n. 11 (D.D.C. 1992)).
Therefore, the analysis under each statute
requires consideration of whether Shiplett’s working as a
locomotive engineer while regularly using Xanax created a
direct threat or significant risk to the health or safely of
Apdx. A - 19
others. Dr. Mclean, the National Transportation Safety
Board. and the Federal Railway Administration all believe
that the potential side effects caused by the use of Xanax
pose too significant of a risk to the safety of the operation
of a train to justify its use. Given that the courts have little
expertise on this issue, we conclude that the only reasonable
course is to defer to the determination made by Amtrak and
federal agencies charged with transportation safety that
Shiplett’s use of Xanax posed a significant risk to the safety
of others.
It follows that the plaintiff, as a non-qualified
individual, could not perform an essential function of his
job. namely, operating a train — safely, without
accommodation. But it also appears that his employer
could not "reasonably accommodate" the plaintiff to enable
him to perform “the essential functions” of the job in
question. School Bd. of Nassau County v. Arline, 480 U.S.
287-88 n. 17 (1987p(quoting 45 C.F.R. § 84.3(k)(1985)):
accord Doe v. DeKalb County School District, 145 F.3d
1441. 1446 (11th Cir. 1998). Shiplett has not suggested,
nor can we think of, any reasonable accommodation could
be made that would qualify him to perform his duties as a
locomotive engineer in spite of the possibility of drowsiness
and other potential adverse side effects that accompany the
1 errr eneereertreeenee ere nee ecererreenmane
use of Xanax. He merely argues that it was unreasonable
for Amtrak to refuse to allow him to work while taking
Xanax. His only suggested accommodation was to request
placement as a conductor. Although Amtrak does not recall
Apdx. A - 20
or have record of that request, it argues now it would have
precluded Shiplett from that position as well, because it was
also a safety-sensitive position. Shiplett himself testified
that the job of conductor required supervision over the
coaches, including, in the case of an emergency, evacuating
the passengers. Accordingly, we conclude that the plaintiff
cannot prevail on his discrimination claim as a matter of
law, because he failed to show that he can perform the
essential functions of his job with or without
accommodation.
Furthermore, Shiplett bears the initial burden
of establishing that the accommodation he sought was
"objectively reasonable," which includes showing that there
was an open conductor position. Monette v. Electronic
Data Systems Corp., 90 F.3d 1173. 1183 (6th Cir. 1996):
see also Smith v. Ameritech, 129 F.3d 857. 867 (6th Cir.
1997). "In some cases, reasonable accommodation under
the ADA may include ’job restructuring’ or “reassignment
to a vacant position."". Smith, 129 F.3d at 867 (citing 42
U.S.C. § 12111(9)(b) and 29 C.F.R. §1630.2(0)(2)(ii)).
Nonetheless, "the ADA does not require an employer to
reassign an employee to a position that is not vacant." Id.
(citing White v. York Int’l Corp., 45 F.3d 357. 362 (10th
Cir. 1995)). Nor does the ADA require that an employer
restructure the company to create a position for an
employee "in a manner which would usurp the legitimate
rights of other employees in a collective bargaining
agreement." Jasany v. United States Postal Service. 755
Apdx. A - 2]
F.2d 1244, 1251-52 (6th Cir. 1985). Shiplett did not
present evidence on any of theSe issues. Thus, without
evidence that there was an opening for a conductor, the
plaintiff's requested accommodation, if it could be proven,
would not be objectively reasonable. See Smith, 129 F3d
at 867.
In sum, Amtrak’s only condition upon
Shiplett’s working as a locomotive engineer was that he not
use Xanax. Shiplett told the company that he would
comply with the directive and obtained prescriptions with a
different drug to treat his sleeping problems, yet tested
positive for Xanax on his return-to-work drug test. After
that. he could have returned to work simply by providing a
urine sample that tested negative for Xanax, but he did not
do so. Indeed, at no time did Shiplett present a urine
sample showing that he was_not using Xanax. Accordingly,
he was not “otherwise qualified" for the locomotive
engineering position which he had previously held.’
Furthermore, Shiplett did not meet his burden of showing
that his suggested accommodation of being placed as a
conductor was objectively reasonable. We _ therefore
"Even if we were to conclude that Shiplett was
“otherwise qualified" for the position at issue despite his use
of Xanax, his continued use of the drug constitutes a
legitimate non-discriminatory reason for Amtrak’s decision
to temporarily preclude him from working in this position.
There is no evidence that this proffered reason is pretextual.
Apdx. A - 22
conclude that Shiplett was not otherwise qualified for the
position at issue.
B. Retaliation Claim
Shiplett’s recaliatory discrimination claim is
brought under § 602(a) of the Michigan Handicappers’ Civil
Rights Act, Mich. Comp. Laws Ann. §§ 37.1101 et seq.
(West 1985). Section 602(a) provides as follows: "A
person or 2 or more persons shall not: (a) Retaliate or
discriminate against a person because the person has
opposed a violation of this act, or because the person had
made a charge, filed a complaint, testified, assisted. or
participated in an investigation, proceeding, or hearing
under this act.". Mich. Comp. Laws Ann. § 37.1602(a)
(West 1985). This language tracks the language used in the
ADA. Thus, cases discussing the standards for an ADA
retaliation claim are also applicable to a retaliation claim
under the Michigan statute. See Monette, 90 F.3d at 1178
n.3.
A plaintiff makes a prima facie case of
retaliation under the ADA and, thus, the parallel Michigan
Act, by showing that: (1) he engaged in protected activity:
(2) the exercise of his civil rights was known by the
defendant; (3) that defendant thereafter took adverse
employment action; and (4) a causal connection exists
between the protected activity and the adverse employment
action. See Walborn v._ Erie County Care Facility. 150
“3d 584, 588-89 (6th Cir. 1998).
Apdx. A - 23
Amtrak contends, correctly we conclude, that
Shiplett has not shown that he was subjected to any adverse
employment action. Shiplett testified that he first made
complaints of discrimination against Amtrak around late
November or early December of 1994. Dr. McLean had
cleared the plaintiff to return to his position as locomotive
engineer in mid-November 1994, and Shiplett was merely
required to submit to a return-to-work physical, which was
required by the terms of the governing collective bargaining
agreement between Amtrak and the Brotherhood of
Locomotive Engineers, in order to return to work. On
November 23, 1994, the plaintiff was given such a physical
and again tested positive for Xanax. He was therefore not
allowed to return to work. Shiplett needed only to submit
a clean urine sample within 30 days of that positive drug
test to regain his position as locomotive engineer. He failed
to do so. From the time of the September 15 overshooting
incidents, Amtrak’s only condition on Shiplett’s return to
work was that he discontinue using Xanax for safety
reasons. This was merely a condition for working in that
safety-sensitive position, and not an adverse employment
action.
Despite the fact that the result of Amtrak’s
condition was that the plaintiff did not work for an
extended period of time and, accordingly, did not receive
wages, that outcome was the result of his own behavior.
Employers in a variety of industries that involve safety-
sensitive positions require, implicitly or explicitly, that
Apdx. A - 24
workers arrive for work every day unimpaired by any
substances that may affect their ability to perform their jobs
safely. This requirement does not constitute an adverse
employment action.
It follows that the plaintiff's retaliation claim
also fails sa a matter of law.
C. FELA Claim
Shiplett also brings a negligence claim under
the FELA, alleging that Amtrak negligently caused him
physical and emotional injuries. The Supreme Court
recently clarified the standard for recovering for negligent
infliction of emotional distress under the FELA in
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994),
In Gottshall, the Court considered two claims for negligent
infliction of emotional distress. First, it considered the
claim of Carlisle, a plaintiff who had worked for the
railroad as a train dispatcher for several years before
suffering a nervous breakdown and other injuries due to
overwork. See id. at 539-40. Second, the Court considered
Gottshall’s claim that the railroad was responsible for the
major depression and post-traumatic stress disorder he
suffered after witnessing a co-worker have a heart attack
and die while working. See id. at 536-37. As we have
previously noted, "the Gottshall Court adopted the common
law ‘zone of danger’ test to determine who may recover for
negligent infliction of emotional distress under the FELA.
Apdx. A - 25
The zone of danger test limits recovery for emotional injury
to those plaintiffs who sustain physical impact as a result of
a defendant’s negligent conduct or who are placed in
io
immediate risk of physical harm by that conduct. Id."
Szymanski v. Columbia Transportation Co., 154 F.3d 591,
593 (6th Cir. 1998)(en banc)(citation to Gottshall, 512 U.S.
at 554-57, omitted). In Metro-North Commuter R.R. Co. v.
Buckley, 521 U.S. 424 (1997), "the Supreme Court
emphasized its adherence to the Gottshall holding in
reiterating the reasons ‘common law courts have restricted
recovery for emotional harm to cases falling within rather
narrowly defined categories....". Szymanski, 154 F.3d at
594 (quoting Metro-North, 521 U.S. at 433).
The plaintiff argues in his appellate brief that
he introduced the following evidence at trial supporting
several grounds of liability under the FELA: (1) he
followed Dr. McLean's instructions to stop taking Xanax
immediately, and suffered physical injuries as a result; and
(2) Amtrak refused to return Shiplett to work without
examining him to see whether Xanax impaired his ability to
perform his job responsibilities, which caused him physical
injuries. During trial, the plaintiff also argued that
Amtrak’s negligence was responsible for his emotional
breakdown. In Metro-North. the Supreme Court listed
examples of cases cited in Gottshall in support of its narrow
"zone of danger" test. See Metro-North, 521 U.S. at 430-
31. It is clear that those cases all envision an actual.
immediate "physical impact," such as a car accident. In
Apdx. A - 26
Szymanski, we reviewed cases in which courts rejected
claims under the FELA for work-induced physical injuries
such as depression, headaches, and weight loss, as well as
intangible workplace physical threats such as carcinogenic
substances, and concluded that a work-induced heart attack
did not create liability under the FELA. Szymanski. 154
F.3d at 594-95. The Szymanski court took the position that
those cases reinforced its interpretation of Gottshall as
encompassing traditional common law concepts of physical
impact. See id. In light of the governing case law, we can
only conclude that the injuries of which Shiplett complains
do not constitute actionable injuries under the FELA.
CONCLUSION
For the foregoing reasons, we REVERSE the
district court’s order denying defendant’s motion for
judgment as a matter of law and. accordingly, enter
judgment for Amtrak on each of the plaintiff's claims.
tl
a |
Apdx. A -
UNITED STATES DISTRICT COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PASSENGER CORPORATION,
D/B/A AMTRAK,
Defendant-Appellant.
KURT D. SHIPLETT, )
Plaintiff-Appellee, ) =
yye
v. ) Tsk ad
NATIONAL RAILROAD ) | g2"lae
)
)
BEFORE: KENNEDY, DAUGHTREY, and CLAY,
Circuit 'edaes
The court having received a petition for rehearing en
banc, and the petition having been circulated not only to the
original panel members but also to all other active judges of this
court, and no judge of this court having requested a vote on the
suggestion for rehearing en banc, the petition for rehearing has
been referred to the original panel.
The panel has further reviewed the petition for rehearing
and concludes that the issues raised in the petition were fully
considered upon the original submission and decision of the case.
Accordingly, the petition is denied
ENTERED BY ORDER OF THE COURT
/s/_ Leonard Green,
Leonard Green, Clerk
Apdx. B - |
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISIGN
KURT D. SHIPLETT,
Plaintiff, Case No. 96-71467
v. Hon.: Horace W.
Gilmore
NATIONAL RAILROAD
PASSENGER CORPORATION,
D/B/A AMTRAK,
Defendant.
a /
JAIMIE R. GOODMAN (P34769)
\ttorney for Plaintiff
the Ford Building
615 Griswold, Suite 1805
Detroit, Michigan 48226
(313) 965-5123
Cathleen Giannetta, Esq.
\ttorney for Defendant
National Railroad Passenger
Corporation ("Amtrak")
233 Broadway, 34th Floor
New York, N.Y. 10279
JUDGMENT ON JURY VERDICT
At a session of said Court held
in the U.S. Courthouse in Detroit.
Michigan on September 24, 1997
Present: Honorable Horace W. Gilmore
District Court Judge
Apdx. C - |
This action came on for trial before the Court upon a jury
trial, the issues having been duly tried and the jury having duly
rendered its verdict on July 23, 1997:
IT IS HEREBY ORDERED AND ADJUDGED, that
Judgment ts hereby entered in favor of Plaintiff Kurt D. Shiplett
and Plaintiff shall recover from Defendant, the sum of Five
Hundred Thousand Dollars ($500,000.00) along with interest
thereon and taxable costs as allowed by law.
Horace W. Gilmore
District Court Judge
Apdx. C - 2
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KURT D. SHIPLETT,
Plaintiff, Case No. 96-71467
v. Hon.: Horace W.
Gilmore
NATIONAL RAILROAD
PASSENGER CORPORATION,
D/B/A AMTRAK,
Defendant.
/
JAIMIE R. GOODMAN (P34769)
Attorney for Plaintiff
The Ford Building
615 Griswold, Suite 1805
Detroit, Michigan 48226
(313) 965-5123
Cathleen Giannetta, Esq.
Attorney for Defendant
National Railroad Passenger
Corporation ("Amtrak")
233 Broadway, 34th Floor
New York, N.Y. 10279
ORD"™R DENYING DEFENDANT’S MOTION FOR
JULGMENT AS A MATTER OF LAW OR IN THE
ALTERNATIVE. \ NEW TRIAL
At a session of said Court held
in the U.S. Courthouse in Detroit.
Michigan on September 24, 1997
Present: Honorable Horace W. Gilmore
District Court Judge
Apdx. D - |
[he matter having come on for hearing on September 24,
1997 on Detendant’'s Motion for Judgment As a Matter of Law
Or In the Alternative. A New Trial. the Court have considered
the briefs, heard oral argument and being otherwise fully advised
in the premises:
IT IS HEREBY ORDERED, for the reasons set forth on
the record, that Detendant s Motion for Judgment As a Matter of
Law is DENIED and that Defendant's Motien for a New Trial is
DENIED
Horace W. Gilmore
District Court Judge
Apdx. D - 2
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KURT D. SHIPLETT,
Plaintiff-Appellee, Case No. 96-71467
¥. Hon.: Horace W.
Gilmore
NATIONAL RAILROAD
PASSENGER CORPORATION,
D/B/A AMTRAK,
Defendant-Appellant.
VOLUME 3
TRIAL
Proceedings had and testimony taken in the above-
entitled matter before HONORABLE HORACE W. GILMORE.
District Judge, United States District Court, Detroit, Michigan, on
Thursday, July 10th, 1997,
APPEARANCES:
FOR THE PLAINTIFF: Jaimie R. Goodman, Esq.
FOR THE DEFENDANT: Cathleen Giannetta, Esq.
COURT REPORTER: Joan L. Morgan, CSR
Official Court Reporter
Apdx. E - |
[I:xcerpted p. 50, line 4-25; p.S1, line 1-19]
VIKEN MATOSSIAN, M.D.
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GOODMAN:
@)
Good morning.
Good morning.
Doctor, would you state your full name for the record
please?
Viken Matossian.
And would you tell the jury your occupation?
I'm a psychiatrist
Are you an M.D.?
Medical doctor.
\nd where is your practice located?
In Howell, Michigan.
And you specialize in psychiatry, then?
Yes
\nd do you specialize in a specific area of psychiatry?
| have several board certificates in adult psychiatry and
child-adolescent psychiatry. And I would say that in the
past five years | have concentrated) primarily tn
psychotropic medication and their effects
When you say your have concentrated on psychotropic
medication?
Yes.
What do you mean by that?
Apdx. k - 2
()
().
().
A very large part of my day is spent: examining
individuals for medication effects, and supervising
psychotherapy combined with medications.
Okay. And is that what a large part of your practice
consists of today?
Yes
Where do you practice?
In Howell, Michigan.
And so you are licensed in the state of Michigan to
practice medicine?
Yes.
Where did you graduate from medical school?
Washington University in St. Louis.
[Excerpted p. 54, line 3-12]
Did you assist Mr. Shiplett in any way with his
communications with Amtrak in trying to return to work?
| believe | spoke to Dr. McLean on two occasions who,
as T understood it, was a physician responsible for
overseeing the medical health of the locomotive
Operators.
Was it your understanding that Mr. McLean was
Amtrak's medical officer?
Yes, sir.
[Excerpted p.54, line 21-23; |
Did you ever indicate to Dr. Mclean your thoughts as to
Whether Mr. Shiplett should be allowed to work while
taking Xanax?
Q.
[Excerpted p.55, line 1-25]
It is my opinion that there was no basis for taking him
off of work, simply due to the status of being treated
with Xanax and the way he had been.
Okay. It that why you indicated to Dr. McLean?
Yes, it was.
Why is that your opinion?
There can be variable responses to medication, but
statistically, there’s a small chance of impairment with
Xanax. In Kurt's case, in particularly, | could detect and
Kurt had no complaints of any kind of impairment in
sedation or memory, or tension when he was taking the
Xanax.
Additionally | would like to comment, Mr. Shiplett was
on a constant dose of one milligram to take it at night.
Daily doses of Xanax, under one milligram have been
studied carefully, and repeatedly, for effects on working
memory, attention, and sedation. None of those studies
found any significant impairment in a dosage with
chronic use of Xanax.
[Excerpted p.62, line 6-22
In terms of fully relating the significant events, did Mr.
Shiplett ever indicate to you, Doctor, whether Amtrak's
medical doctor, Mr. McLean, told him to stop taking
Xanax cold turkey?
Yes, he did say that.
If. in tact. Dr. McLean told Kurt Shiplett to stop taking
Xanax cold turkey. do you believe that was responsible
Apdx. E - 4
or irresponsible on the part of Dr. McLean?
| was shocked to the point that I actually didn’t give it
absolutely any credence. It seemed so unpredicted. It
was hard for me to ignore that a physician would make
such a recommendation. Stopping Xanax abruptly after
a long-term administration runs the risk of severe
complications including seizures and possibly even death.
Apdx. E - 5
UNITED STATES DISTRICT COURT |
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KURT D. SHIPLETT,
Plaintiff-Appellee, Case No. 96-71467
v. Hon.: Horace W.
Gilmore
NATIONAL RAILROAD
PASSENGER CORPORATION,
D/B/A AMTRAK,
Defendant-Appellant.
VOLUME 4
TRIAL
Proceedings had and testimony taken in the above-
entitled matter before HONORABLE HORACE W. GILMORE,
District Judge, United States District Court, Detroit, Michigan, on
Phursday, July 14th, 1997.
APPEARANCES:
FOR THE PLAINTIFF: Jaimie R. Goodman, Esq.
FOR THE DEFENDANT: Cathleen Giannetta, Esq.
COURT REPORTER: Joan L. Morgan, CSR
Official Court Reporter
Apdx. E - 6
[Excerpted p. 3, line 21-25]
KURT D. SHIPLETT
having been called as a witness herein, and after having been first
duly sworn to tell the truth, the whole truth, and nothing but the
truth, was examined and testified as follows:
Q.
[excerpted p. 33, line 2-8]
Mr. Shiplett, did you continue to take Xanax from the
time it was prescribed to you in 1992, until September
15, 1994?
That is correct.
Okay. And did you always take it as the doctors
prescribed it to you?
Yes, sir.
[Excerpted p. 34, line 7-25; p. 35, line 1-25]
But at least up until September 15, 1994, you were
regularly taking Xanax at one milligram?
[hat is correct.
Did you ever take more than one milligram of Xanax any
time between June of 1993 and September 15, 1994?
No, sir.
Did you ever take Xanax while on the job?
No.
Did you ever take Xanax two or three hours before
reporting to work?
No, sir.
Did you ever take Xanax when you were subject to duty?
No, Sir.
Apdx. E - 7
Q.
Q.
().
And when you would get off work, how many hours do
you understand before you would have to veport to work
again?
A minimum of eight to ten hours, depending on how
many hours | had worked.
And how many hours of sleep would you try to get
before reporting to work?
As many as | could, at least to eight as possible. Like |
said, it depended -- a lot depended on the scheduling, but
| always took the Xanax immediately going off duty to
make sure | was rested prior to going back on duty.
Was it your practice to take Xanax at least eight hours
before you had to return to work?
That is correct.
From the time you took Xanax to help you sleep in June
of 1992, up to September 15, 1994, how did the Xanax
make you feel? Did it affect you in any way?
It just helped me sleep. Other than that, no.
Did it make vou drowsy the next day when you woke
up?
No.
Did it impair your coordination in any way?
No.
In your judgment, Mr. Shiplett, did it affect your ability
in any way to safely navigate a locomotive engine?
It helped my ability because | got a good night's sleep.
[Excerpted p. 41, line 3-15]
Now, during the time that you were taking the Xanax,
Were you performing your job responsibilities as a
locomotive engineer safely?
That is correct.
Apdx. E - 8
Q,
Q.
Q.
While you were taking Xanax as prescribed to you at
bedtime, did you receive any feedback from Amtrak as
to your safety performance on the Xanax?
Prior to 1994?
Yes.
Yes, | did.
Okay. Do you recall Winning any safety awards, Mr.
Shiplett?
Yes, I do.
[Excerpted p. 81. line 2-15]
Did Dr. Gallant specifically indicate to you that it was no
problem for you to use Xanax at bedtime. and then work
as a locomotive engineer the next day?
Yes, because that’s what | was explaining to him that’s
What I was doing. And again, he said it would not have
been maybe his number one choice of medication, but
certainly he didn’t see it as a safety factor.
Did Dr. Gallant upon his conclusions of his examination
indicate to you his opinion as to whether you Were
mentally and physically fit for returning to work as a
locomotive engineer?
Yes, that’s what he indicated.
Apdx. E - 9
UNTEPED STATES DISTRICT COURT
FASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KURT D. SHIPLETT,
Plaintiff-Appellee, Case No. 96-71467
‘. Hlon.: Horace W.
Gilmore
NATIONAL RAILROAD
PASSENGER CORPORATION,
DBA AMPRAR,
Defendant-Appellant.
VOLUME 7
TRIAL
Proceedings had and testimony taken in the above
entitled matter before HONORABLE HORACE W. GIEMORE,
District Judge, United States Distrret Court, Detron, Michigan, on
Phursday. July 17th, 190°
APPEARANCES
FOR THE PLAINTIEE Jammie R. Goodman, bsq
POR THE DEFENDANT Cathleen Giannetta, bsq
COURT REPORTER Joan L. Morgan, CSR
Otficial Court Reporter
\pdx. b - 10
Q.
Q.
[Excerpted p. 13, line 3-25; p. 14, line 1-16]
Q.
[Excerpted p. 11, line 3-13]
Okay. Isn°t it true, Dr. McLean,
"that side effects of Xanax, if
they occur, are generally
observed at the beginning of
therapy and usually disappear
upon continued medication?
They may, but they may also
come back during the use.
hat statement that I just read to
you, sir, isn’t that) statement
right out of the "Physicians’
Desk Reference"?
Yes, sir, it is.
All right. And you also
determined, did you not, that
prescription, at least according
to the documentation received
by vou from Dr. May, indicated
that a prescription was written
for Xanax, one milligram, as a
sleeping pill to be taken at
bedtime for patient, Kurt
Shiplett.
That's correct.
And you understood then at the
time that Mr. Shiplett was taking
the Xanax at that time to help
him sleep.
Apdx. E - 11
Q,
That's correct.
And notwithstanding all that,
you decided that he could not
perform his responsibilities as a
locomotive engineer, is that
correct?
As | testified yesterday, not only
Mr. Shiplett, but all locomotive
engineers working for Amtrak.
That's what I want to get to
right now. So, in other words,
just so | understand you cor-
rectly, it doesn’t matter who the
locomotive engineer ts, it
doesn't matter what the dosage,
it doesn't matter when they take
it, the bottom line is, it's your
policy on behalf of Amtrak that
a locomotive engineer cannot
operate a locomotive engine or
perform his job while taking
Xanax.
That is correct, sir.
So, in other words, Amtrak has
a blanket policy prohibiting any
locomotive engineer — from
operating a locomotive engine
While taking Xanax.
That's correct, sir.
All right. So, the fact that Mr.
Shiplett may have been only
taking one milligram of Xanax,
Apdx. E - 12
Q.
=<
Q.
Q.
QO.
as Opposed to four milligrams of
Xanax, was of no consequence
to you?
That’s correct.
And the fact that Mr. Shiplett
Was taking Xanax at bedtime
and was taking it eight hours
before he would report to work
is of no consequence to you; is
that correct?
That's essentially correct, sir.
[Excerpted p. 16, line 7-25]
You never examined = Mr.
Shiplett; did you, ever?
The answer is, as Corporate
Medical Director of — the
corporation, | examined no
patients.
Is your answer "no?"
The answer is "no," sir.
Okay. You never conducted any
tests of any kind on = Mr,
Shiplett; did you?
Mr. Shiplett was examined for
the corporation by Dr. Gallant.
| understand what you testified
to. I’m asking you, did you
conduct any tests on Mr.
Shiplett, yes or no?
The answer is "no." There’s no
reason | should.
Apdx. E - 13
Q.
Q.
Q.
And just so I'm clear, you make
a determination that Mr. Shiplett
cannot perform his job without
testing or examining him
personally. Is that a true
statement?
It's a true statement, but I'd like
to expand on it if | could.
[Excerpted p. 30. line 4-16]
Now, Dr. McLean, let me just
go over a little bit regarding
your background, if we could.
Yes, sir.
You are not Board Certified in
Psychiatry: are you?
That is correct.
Okay. In fact, would it be fair
to say that psychiatry is not an
area of your specialty? It’s not
an area you specialize in.
For the direct treatment of
patients, no.
Have you ever -- during the
time that you worked at Amtrak,
did you ever treat patients from
a psychiatric standpoint?
| previously testified | did not
treat patients.
Apdx. E - 14
[Excerpted p. 31, line 3-7]
Q. And you've never prescribed
medication to anyone for
purposes of any emotional
disorders during the time that
you worked at Amtrak; did you?
A I did not prescribe medication
because I do not treat patients.
[Excerpted p. 32, line 14-25; p. 33, line 1-1 1]
Q. Now, are you familiar with the
term, "psychopharmacology?"
A. Certainly.
Q. Do you have any — special
training in that area?
A. Not as a trained psychiatrist.
Q. Okay. Were you aware of -- do
you know an individual by the
name of Dr. Viken Matossian?
A. | spoke with Dr. Matossian on
the telephone and I have,
indeed, checked his credentials.
Q. And, in fact, his credentials, as :
they relate to the area of
psychopharmacology, were
impressive: were they not?
A. They are.
Q. In fact, he had more
qualifications in that area than
you do; correct?
A. Yes.
Apdx. E - 15
Q.
[Excerpted p. 35, line 18-25: p. 36, line 1-4]
Q.
And he had more qualifications
in the area of psychiatry than
you do.
That ts correct.
In tact, | believe Dr. Matossian,
and you made reference to this
in your notes, was a Diplomat of
the American Board of
Psychiatry; correct?
That is correct.
Okay. You would agree with
me that you would have to
physically observe someone in
order to determine whether they
are alert or not, correct?
That's correct.
So, in terms of whether Mr.
Shiplett's use of the Xanax
affected his alertness, you would
have not know; correct?
That's correct.
And in terms of whether the
Xanax affected Mr. Shiplett’s
coordination, you would not
know without physically
observing him: correct?
That ts correct. at the time.
Apdx. E - 16
Q.
A.
Q.
Q.
Q.
[Excerpted p. 37, line 6-16]
Now, prior to making the
decision to prohibit Mr. Shiplett
from using Xanax, did you ever
review any of Mr. Shiplett’s
medical records that were kept
by his treating physicians?
The only treating physician that
| knew that Mr. Shiplett had was
Dr.. May and | was in direct
discussion with Dr. May.
You never reviewed any of Dr.
May's records: did you?
No, sir.
[Excerpted p. 40, line 10-20]
And it was your understanding -
-I believe you said you and Dr.
Matossian had "philosophical
differences" regarding whether
Mr. Shiplett should be able to
use the Xanax; correct?
That's correct, sir.
And it was clear to you based
on your discussions with Dr.
Matossian, that Dr. Matossian
believed that Mr. Shiplett would
be able to safely perform § his
responsibilities by using Xanax
at bedtime: correct?
That was what was expressed to
me.
Apdx. E - 17
Q.
().
Q.
{Excerpted p. 42. line 6-23]
So, in fact as | understand it,
Mr. Shiplett’s performance,
whether it was excellent, above
average, or whatever it was, had
no impact on your decision as to
whether he was able to use
Xanax at bedtime.
As I testified, he can certainly
use Xanax at bedtime. He may
not operate a locomotive engine
under the influence of Xanax.
So, even if all his performance
records indicate that he was
safely performing his job re-
sponsibilities, and operating as
an above-average engineer while
using Xanax at bedtime, that
would have meant nothing to
you.
As lve testified, the answer ts
we will not permit him to
operate with Xanax as a loco-
motive engineer.
And that’s a uniform policy
across the board for any
locomotive engineers.
Through the time that I was at
Amtrak, yes.
Apdx. E - 18
Q.
Q.
Q.
A.
[Excerpted p. 60, line 13-22
And you've’ reviewed _ the
"Physicians’ Desk Reference";
have you not?
That's correct.
Isn’t it true, sir, that these
figures in terms of the per-
centage of people who may
effect drowsiness and dizziness,
and all this other stuff that you
cited, involves studies where
individuals are taking up to four
milligrams of Xanax over a ten-
week period; isn’t that true?
Sir, | can’t say whether that’s
true or not.
[Excerpted p. 64, line 2-9]
Okay. Now, you would agree
with the proposition, would you
not, Dr. McLean, that Xanax
affects different individuals
differently.
That's correct.
Okay. So, Xanax potentially
could have no affect on a
particular person depending on
who that particular person is:
correct?
That’s correct.
Apdx. E - 19
Q.
Q.
Q.
Q.
Q.
[Excerpted p. 70, line 7-25]
And the Federal — Railroad
Administration leaves it in the
Medical Review Officer’s hands
to determine what prescription
medication locomotive engineers
can use; correct?
Phat’s correct.
There are no Federal Railroad
Regulations which specifically
state that a locomotive engineer
cannot operate a locomotive
While using Xanax; are there?
Phat is correct.
So, in fact, the Federal Railroad
Administration doesn't direct
you to tell locomotive engineers
they can’t use Xanax. You
make that decision on your own.
Phat is made in the name of the
corporation, yes.
By vou.
By me.
Okay. Not the FRA.
Not the FRA.
(Excerpted p. 97, line 4-11]
All right. Now, isn’t it) true,
though, that back in 1994, Mr.
Shiplett) requested that = you
accommodate him by allowing
him to work in another position?
Apdx. E - 20
Q.
As | said, sir, | do not recall
that.
So, you don’t recall that either
way, one way or the other:
correct?
That's correct.
Title 28
Judiciary and Judical Proceedure
§1254. Cow» of appeals; certiorari; certified questions
Cases in the courts of appeals may be reviewed by the
Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition of any
party to any civil or criminal case, before or after rendition of
judgment or decree:
§1331. Federal question
Che district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of
the United States.
Apdx. F - |
Title 42 [Excerpted]
Americans With Disabilities Act
$12102. Definitions
As used in this chapter: . . .
(2) Disability
The term = "disability" means, with respect to an
individual--
(A) a physical or mental impairment. that
substantially limits one or more of the major life
activities of such individuals:
(B) a record of such an impairment: or
(C) being regarded as having such an
impairment
Apdx. F - 2
Title 42 [Excerpted]
Americans With Disabilities Act
§12111. Definitions
As used in this chapter:
(3) Direct threat
The term "direct threat" means a Significant risk
to the health or safety of others that cannot be
eliminated by reasonable accommodation.
(8) Qualified individual with a disability
The term "qualified individual with a disability"
means an individual with a disability who, with
or without reasonable accommodation, can
perform the essential functions of the
employment position that such individual holds
or desires. For the purposes of this subchapter,
consideration shall be given to the employer's
judgment as to what functions of a job are
essential, and if an employer has prepared a
Written description before advertising — or
interviewing applicants for the job, this
description shall be considered evidence of the
essential functions of the job.
Apdx. F - 3
(9) Reasonable accommodation
The term "reasonable accommodation" may
include--
(A) making existing facilities used by
employees readily accessible to and
usable by individuals with disabilities;
and
(B) job restructuring, part-time or
modified work schedules, reassignment
to a vacant position, acquisition or
modification of equipment or devices.
appropriate adjustment or modifications
of examinations, training materials or
policies, the provision of qualified
readers or interpreters, and other similar
accommodations for individuals with
disabilities.
Apdx. F - 4
er
§12112.
(a)
(b)
Title 42 [Excerpted]
>
Definitions
General rule
No covered entity shall discriminate against a qualified
individual with a disability because of the disability of
such individual in regard to job application procedures,
the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms,
conditions, and privileges of employment.
Construction
As used in subsection (a) of this section. the term
"discriminate" includes--
(1) Limiting, segregating, or classifying a job
applicant or employee in a way that adversely
affects the opportunities or status of such
applicant or employee because of the disability
of such applicant or employee;
(5)(A) not making reasonable accommodations
to the known pbysical or mental limitations of an
otherwise qualified individual with a disability
who is an applicant or employee, unless such
covered entity can demonstrate that the
accommodation would impose an undue hardship
on the operation of the business of such covered
entity; or
Apdx. F - 5
Title 42 [Excerpted]
Americans With Disabilities Act
§$12113. Defenses
(a) In general
It may be a defense to a charge of discrimination under
this chapter that an alleged application of qualification
standards, tests, or selection criteria that screen out or
tend to screen out or otherwise deny a job or benefit to
an individual with a disability has been shown to be job-
related and consistent with business necessity, and such
performance cannot be accomplished by reasonable
accommodation, as required under this subchapter.
(b) Qualification standards
The term "qualification standards" may include a
requirement that an individual shall not pose a direct
threat to the health or safety of other individuals in the
workplace.
Apdx. F - 6
Title 45 [Excerpted]
Federal Employer’s Liability Act
a
v
§51. Liability of common carriers by railroad, in interstate
or foreign commerce, for injuries to employees from
negligence; employee defined
Every common carrier by railroad while engaging in
commerce between any of the several States or Territories, or
between any of the States and Territories, or between the District
of Columbia and any of the States or Territories, or between the
District of Columbia or any of the States or Territories any
foreign nation or nations. shall be liable in damages to any
person suffering injury while he is employed by such carrier in
such commerce, or, in case of the death of such employee. to his
or her personal representative, for the benefit of the surviving
widow or husband and children of such employee; and, if none,
then of such employee's parents, and. if none, then of the next
of kin dependent upon such employee, for such injury or death
resulting in whole or in part from the negligence of any of the
officers, agents, or employees of such carrier, or by reason of any
defect or insufficiency, due to its negligence, in its cars, engines,
appliances, machinery, track. roadbed, works, boats, wharves, or
other equipment.
Any employee of a carrier, any part of whose duties as
such employee shall be the furtherance of interstate or foreign
commerce; or shall, in any way directly or closely and
substantially, affect such commerce as above set forth shall, for
the purposes of this chapter, be considered as being employed by
such carrier in such commerce and shall be considered as entitled
to the benefits of this chapter.
Apdx. F - 7
29 CFR Ch. XIV [Excerpted]
+
Part 1630--REGULATIONS TO IMPLEMENT THE EQUAL
EMPLOYMENT PROVISIONS OF THE AMERICANS
WITH DISABILITIES ACT
§1630.2. Definitions
(0) Reasonable accommodation.
(1) The term reasonable accommodation means:
(1). Modifications or adjustments to a job
application process that enable a
qualified applicant with a disability to be
considered for the position such
qualified applicant desires: or
(11) Modifications or adjustments that
enable a covered entity's employee with
a disability to enjoy equal benefits and
privileges of employment as are enjoyed
by its other similarly situated employees
without disabilities.
(2) Reasonable accommodation may include but
is not limited to:
(11) Job restructuring; part-time or
modified work schedules; reassignment
to a vacant position: acquisition or
modifications of equipment or devices;
appropriate adjustment or modifications
of examinations, training materials, or
policies; the provision of qualified
readers or interpreters; and other similar
Apdx. F - 8
accommodations for individuals with
disabilities.
(3) To determine the appropriate reasonable
accommodation it may be necessary for the
covered entity to initiate an informal, interactive
process with the qualified individual with a
disability in need of the accommodation. This
process should identify the precise limitations
resulting from the disability and potential
reasonable accommodations that could overcome
those limitations.
(r) Direct Threat means a significant risk of substantial
harm to the health or safety of the individual or others
that cannot be eliminated or reduced by reasonable
accommodation. The determination that 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. In determining whether an individual would
pose a direct threat, the factors to be considered include:
(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.
*
Apdx. F - 9
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