Equal Employment Opportunity Commission v. BNSF Railway Company, No. 2:2014cv01488 - Document 28 (W.D. Wash. 2015)
Court Description: ORDER denying 21 Defendant's Renewed Motion to Dismiss for Failure to State a Claim, by Judge Marsha J. Pechman.(MD)
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Equal Employment Opportunity Commission v. BNSF Railway Company Doc. 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 11 Plaintiff, CASE NO. 2:14-CV-01488-MJP ORDER DENYING DEFENDANT’S RENEWED MOTION TO DISMISS 12 v. 13 BNSF RAILWAY CO., 14 Defendant. 15 16 17 THIS MATTER comes before the Court on Defendant BNSF Railway Co.’s Renewed Motion to Dismiss Plaintiff Equal Employment Opportunity Commission’s claim under the 18 Americans with Disabilities Act filed on behalf of Russell Holt. Having considered the motion 19 (Dkt. No. 21), the response (Dkt. No. 23), the reply (Dkt. No. 24), and all attached documents, 20 the Court DENIES Defendant’s Renewed Motion to Dismiss. 21 Background 22 BNSF Railway Co. (“BNSF”) offered Russell Holt (“Holt”) a position as a patrol officer, 23 contingent upon Holt passing a post-offer, pre-employment medical examination. (Dkt. No. 23 24 ORDER DENYING DEFENDANT’S RENEWED MOTION TO DISMISS- 1 Dockets.Justia.com 1 at 5.) The Equal Employment Opportunity Commission (“EEOC”) alleges that BNSF 2 discriminated against Holt when, after BNSF’s contract doctor cleared Holt for the position 3 based on a routine medical examination required of all applicants, it demanded that Holt procure 4 a follow-up MRI. (Id. at 5.) Because the MRI was deemed not medically necessary by Holt’s 5 doctor, Holt’s medical insurance would not cover it; Holt would have to pay for the MRI 6 himself. (Id. at 5.) When Holt refused to procure the MRI because of the cost, BNSF refused to 7 waive the requirement, and rescinded the offer of employment. (Id. at 5.) 8 EEOC contends the MRI was an improper additional inquiry not required of all entering 9 employees, and discriminated on the basis of disability in a manner that was not job-related and 10 not consistent with business necessity, violating sections 42 U.S.C. § 12112(d)(3)(A) and (C) of 11 the Americans with Disabilities Act (“ADA”). (Dkt. Nos. 11, 23.) Defendant argues that the 12 ADA allows BNSF to require the MRI because it was a follow-up examination that is medically 13 related to the initial examination. Defendant now moves to dismiss Plaintiff’s ADA claim. 14 15 16 17 Analysis I. Legal Standards A. Motion to Dismiss To survive a Fed. R. Civ. P. 12(b)(6) motion, a complaint must state a claim for relief that 18 is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially 19 plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable 20 inference that the defendant is liable for the misconduct alleged.” Id. Plausibility does not mean 21 probability, “but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 22 Id. Merely reciting the elements of a cause of action will not suffice. Bell Atl. Corp. v. 23 Twombly, 550 U.S. 544, 555 (2007). 24 ORDER DENYING DEFENDANT’S RENEWED MOTION TO DISMISS- 2 1 Courts follow a two-pronged approach when deciding whether a complaint survives a 2 Fed. R. Civ. P. 12(b)(6) motion. Iqbal, 556 U.S. at 678-79. First, “a court must accept as true all 3 of the allegations contained in a complaint” unless the allegations are legal conclusions. Id. 4 Second, the claim for relief must be plausible, which is a context-specific task. Id. Courts can 5 consider “documents attached to the complaint, documents incorporated by reference in the 6 complaint, or matters of judicial notice” when making their determination. U.S. v. Ritchie, 342 7 F.3d 903, 908 (9th Cir. 2003). 8 9 B. Discrimination in the Hiring Process Under the ADA No covered employer shall discriminate against a qualified individual on the basis of 10 disability in the hiring process. 42 U.S.C. § 12112(a). After an offer of employment but before 11 the start of work, the employer may require a medical examination and may condition the offer 12 of employment on the results of such examination. 42 U.S.C. § 12112(d)(3). These 13 examinations are not required to be job-related and consistent with business necessity, 29 C.F.R. 14 § 1630.14(b)(3), but if the results of the examination screen out or tend to screen out individuals 15 with disabilities, the screening criteria must be job-related and consistent with business necessity. 16 42 U.S.C § 12112(b)(6). 17 The examination is subject to three restrictions: all entering employees must receive an 18 examination regardless of disability, information obtained from the examination must be kept 19 sufficiently confidential, and the results of the examination must only be used “in accordance 20 with this subchapter,” i.e., they must not be used to impermissibly discriminate against a 21 candidate with disabilities. 42 U.S.C. § 12112(d)(3)(A)-(C). 22 23 24 ORDER DENYING DEFENDANT’S RENEWED MOTION TO DISMISS- 3 1 EEOC guidance provides that, after the examination, an employer may request more 2 medical information from an entering employee if the follow-up examinations or questions are 3 “medically related to the previously obtained medical information.” EEOC, EEOC Notice 4 No. 915.002, Enforcement Guidance: Preemployment Disability-Related Questions and Medical 5 Examinations (1995); see also, McDonald v. Webasto Roof Sys., Inc., 570 F. App'x 474, 476 6 (6th Cir. 2014); Flores v. Am. Airlines, Inc., 184 F. Supp. 2d 1287, 1294 (S.D. Fla. 2002). An 7 employer may choose to ask only some individuals for follow-up examinations before clearing 8 them for work; they need not ask all applicants. See McDonald, 570 F. App’x at 476. 9 10 II. Claim against BNSF under the ADA EEOC argues that BNSF impermissibly discriminated against a qualified individual on 11 the basis of disability by requiring Holt to secure an MRI at his own expense after being cleared 12 by a company doctor. While all applicants were given medical examinations, not all applicants 13 were required to secure expensive additional examinations at their own expense. (Dkt. No. 23 at 14 6.) EEOC argues that just because follow-up examinations, such as the MRI here, are 15 permissible if medically related to initial examinations given to all applicants, it does not 16 necessarily follow that covered employers can require applicants to bear the costs of those 17 follow-up procedures. (Dkt. No. 23 at 12.) EEOC argues the MRI requirement, because of its 18 cost, functioned as a screening criterion which screened out Holt, and that screening out Holt in 19 this manner was impermissible because the criterion is not job-related or consistent with business 20 necessity. The criterion also tends to screen out people with disabilities by requiring them to 21 secure expensive additional examinations that applicants without disabilities are not required to 22 secure. (Dkt. No. 23 at 12.) 23 24 ORDER DENYING DEFENDANT’S RENEWED MOTION TO DISMISS- 4 1 BNSF argues that examinations seeking additional information based on the results of the 2 first examination, such as the MRI required here, are considered part of post-offer, pre3 employment medical examinations and are permitted by EEOC guidance as long as they are 4 medically related. (Dkt. No. 24 at 4-5.) Defendant contends that post-offer, pre-employment 5 examinations are not required to be identical for all applicants under either the ADA or EEOC 6 guidance. (Dkt. No. 21 at 8-9.) Defendant further argues that because Holt did not procure the 7 MRI, BNSF did not use the MRI or its results to disqualify him from the position; rather, BNSF 8 used Holt’s failure to submit a complete application to disqualify him. (Dkt. No. 21 at 8.) 9 The Court is not persuaded by Defendant’s contentions. The statute does not authorize 10 an employer to require that an entering employee pay for the follow-up examination where only 11 applicants with disabilities are asked to provide the follow-ups, especially where a company 12 doctor has already cleared that employee as fit for the position. Defendant is correct that a post13 offer, pre-employment examination need not be job-related and consistent with business 14 necessity, and that medically-related follow-up examinations of some entering employees are 15 permitted. But BNSF’s requirement that Holt procure a follow-up MRI after the post-offer, pre16 employment examination functioned as a screening criterion that screened out an applicant with 17 a disability by imposing an expensive additional requirement not imposed on other applicants. 18 The ADA requires screening criteria that screen out people with disabilities to be job-related and 19 consistent with business necessity; here, EEOC argues the MRI requirement was not job-related 20 and consistent with business necessity. A company doctor had already cleared Holt for work, 21 and at the time of his application, Holt had been performing patrolman duties as a police officer 22 for eleven years without any accommodation. 23 24 ORDER DENYING DEFENDANT’S RENEWED MOTION TO DISMISS- 5 1 As BNSF points out, the ADA does not discuss the cost or payment of ADA-permitted 2 medical examinations. BNSF cites to several cases in support of its interpretation of the statute, 3 but in none of the cases relied on did the employer require the applicant to pay for a follow-up 4 examination or require a follow-up after its contract doctor had already cleared the applicant for 5 work. EEOC has stated a plausible claim upon which relief can be granted. 6 7 Conclusion The Court finds that Plaintiff has stated a claim under the Americans with Disabilities 8 Act. Defendant’s Renewed Motion to Dismiss is DENIED. 9 10 The clerk is ordered to provide copies of this order to all counsel. 11 Dated January 29, 2015. 12 A 13 14 Marsha J. Pechman Chief United States District Judge 15 16 17 18 19 20 21 22 23 24 ORDER DENYING DEFENDANT’S RENEWED MOTION TO DISMISS- 6
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