Train Dispatcher with Attendance Issues Loses Disability Discrimination Claims

By Jeffrey Rhodes May 5, 2021
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 BNSF train

The 5th U.S. Circuit Court of Appeals affirmed BNSF Railway Company's enforcement of its attendance policies in its firing of a train dispatcher with epilepsy. The employee sought a transfer out of his safety-sensitive position or flexible leave to comply with BNSF's attendance requirements as reasonable accommodations under the Americans with Disabilities Act (ADA).

The plaintiff began working at BNSF in 1981 and worked as a train dispatcher from 1989 until 2016. During his employment, the plaintiff violated the company's attendance policies many times. Sometimes, BNSF disciplined the plaintiff for violations; other times, it did not.

In 2014, BNSF's new general director of transportation support implemented a new attendance enforcement strategy to ensure that all train dispatchers, including the plaintiff, were treated fairly and consistently and held accountable for attendance violations.

The plaintiff was diagnosed with a brain tumor in 2009. In April 2015, he had a seizure and was diagnosed with epilepsy. He was admitted to an epilepsy monitoring facility, and his neurologist informed BNSF that he could not safely perform his train dispatcher job for three months.

He was granted medical leave and, a few days after the leave began, asked BNSF's director of scheduling to reassign him to a non-safety-sensitive assistant chief dispatcher (ACD) position. The director of scheduling denied the request, stating that no ACD position was available.

The plaintiff claimed that once he was cleared to return to work as a train dispatcher, he asked his supervisors for two accommodations for his disability. First, he told them he needed to attend doctor visits to monitor his epilepsy and maintain his job. Second, he asked to be able to take days off when he experienced triggering events that might increase the risk of seizure, such as sleeping fewer than four hours a night.

The plaintiff had several absences in 2015 that violated BNSF's attendance guidelines. He was granted leniency for these absences, but was told that starting in December 2015, he would be placed on a one-year review period and additional attendance policy violations could result in further disciplinary action.

In the first three months of 2016, the plaintiff had five unexcused absences—two of them due to sleep deprivation and three due to doctor's appointments. BNSF management notified the plaintiff that it was conducting investigations regarding his January, February and March absences and disciplined him after a hearing on each absence. On May 18, 2016, BNSF fired the plaintiff.

The plaintiff sued under the ADA, the Rehabilitation Act, the Texas Labor Code, the Family and Medical Leave Act and Federal Railroad Safety Act, asserting claims of disability discrimination, failure to accommodate, interference, retaliation and denial of medical leave. The district court granted summary judgment to BNSF on all claims, and the plaintiff appealed the dismissal of his failure-to-accommodate claims regarding his requested reassignment to ACD and his denial of medical leave in 2016.

On appeal, the 5th Circuit considered whether the plaintiff could pursue failure-to-accommodate claims as a qualified individual with a disability.

Because the plaintiff could not show an available ACD position existed for him to transfer to, or that he satisfied the qualifications of such a position, he could not establish that a transfer would be a reasonable accommodation. Moreover, the plaintiff's request to use flexible medical leave after a poor night's sleep was too unpredictable to be reasonable. Even though the company had exercised leniency regarding his attendance issues in times past, BNSF could require regular and reliable attendance.

As a result, the 5th Circuit upheld the dismissal of the plaintiff's claims on summary judgment.

Weber v. BNSF Railway Co., 5th Cir., No. 20-10295 (Feb. 24, 2021).

Professional Pointer: Employers often try to help an ailing employee who struggles to satisfy the attendance requirements of a position. Yet when such attendance issues cannot be reasonably accommodated, the employer can enforce its attendance policies through discipline or discharge.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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