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JOHNSON v. NORFOLK SOUTHERN CORPORATION

March 25, 2003

EARL L. JOHNSON, JR., PLAINTIFF,
v.
NORFOLK SOUTHERN CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Nan R. Nolan, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Earl L. Johnson, Jr. filed a complaint against defendant Norfolk Southern Corporation ("NSC") alleging that he was held out of service without pay for two and a half months in violation of the Americans with Disabilities Act ("ADA"). 42 U.S.C. § 12101 a seq., and Tide VTI of the Civil Rights Act, 42 U.S.C. § 2000c et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (4 This matter is now beibre the Court on NSC's motion for surnmaryjudgrnent. For the reasons set forth bclow, the motion is granted.

FACTUAL BACKGROUND

NSC is a holding company headquartered in Norfolk, Virginia. NSC's subsidiary, Norfolk Southern Railway Company ("NSR"), is a Virgnia railroad company tat does business in Illinois as an interstate common carrier of freight. MW provides management serviecs for NSR, including medical management services through NSC's Medical Department. Johnson was hired by a predecessor to NSR in October 1988 as a switchman. Shortly thereafter, he became qualified as a locomotive engineer and has worked for NSR in this capacity ever since.

On February 16, 2000, Johnson went to see his personal physician at the Union Health Service in Chicago because of pain in his knee. This was the first time he had ever consulted with a doctor regarding a knee problem. Johnson's doctor did not prescribe any medication or recommend that Johnson take time off from work. Or' April 3, 2000, Johnson returned to Union Health Service complaining of a further flare-up with his knee. Johnson told the doctor that his i-i gin knee was painful, that he could not fully straighten the leg, and that he was having difficulty walking because of the pain. Johnson also stated that the symptoms had become much worse during tbe previous two weeks. The doctor x-rayed, lohnson's leg, recommended that he take three days off work, and prescribed Tylenol for the pain. Johnson marked off work for the three days recommended by his doctor and for an "additional four vacation days.

On April 7, 2000, Johnson tried to return to work but was instructed by Trainmaster Peters that he first needed to obtain a release from his doctor. Johnson returned to his doctor that day and reported that his knee was extremely painful. He stated that he had been experiencing pain off and on for about Live weeks, and that he could not straighten his leg all the way. Tn addition, Johnson was using a cane. The doctor observed Johnson "limp around the room a few times" and step on and off a stool, which Johnson says he "negotiated without any problem other than limping and pain." The doctor asked Johnson what his job duties were as a locomotive engineer, and Johnson responded that lie "sit[s] down on my rump and out rig[s] a locomotive aft day." Johnson Dep., pp. 87-88. At the end ol' the examination, the doctor released Johnson to return to work on April 9, 2000 without restrictions.

Johnson returned to work for his next scheduled shift on the evening of April 9. He gave the doctor's note to Trainmaster John Gentry and went to work. The following morning on April 10, 2000, Assistant Superintendent Richard Zimmerman contacted the NSC Medical Department and spoke with Occupational Health Nurse Beverly Dozier. Zimmerman told Nurse Dozier that Johnson had been observed limping and having problems walking, and that Zimmerman was concerned about Johnson's ability to safely mount and dismount locomotives. The panics have not identified the individual who reportedly observed Johnson having problems walking, but Johnson admits that he was in fact limping and in pain at that time. Johnson Dep., pp. 232-33. Nurse Dozier told Zimmerman that Johnson should be scheduled for a fitness for service examination with a company doctor because a locomotive engineer has to walk on uneven terrain and ballast, and has to climb ladders to get up to the cab of the locomotive. Zimmerman interpreted Nurse Dozier's instruction to mean that Johnson could not work until he completed the fitness for service examination and held Johnson out of service pending that examination. Although this was not the normal procedure, Nurse Dozier testified that periodically, a supervisor will instruct an employee not to return to work until released by a doctor.

Trainmaster Peters called Johnson at home cm April 10, 2000 and told him that he needed to see a company doctor to evaluate his medical condition and that he would be held out of service pending that evaluation. Johnson went to the Hammond Clinic on April 12, 2000 for his scheduled appointment and was examined by one of the staff physicians. Johnson told the doctor that his knee had fired up and started hurting in connection with exercise. The doctor examined Johnson and signed an NSR form stating that Johnson could perform the essential functions of a locomotive engineer. Johnson took the release to NSR and returned to work on April 12 or 13, 2000. At that time, his knee pain had diminished and his condition was improved. Def. Facts ¶ 20.

On April 14, 2000, Johnson went to see his personal physician. Dr. Pahwa, at the Union Health Service, and reported that he still could not straighten his knee. Dr. Pahwa, an orthopedist, recommended that Johnson have an MRI done on the knee and prescribed an anti-inflammatory drug, Indocin. On April 18, 2000, Johnson had an MRI. Shortly thereafter on April 26, 2000, Johnson went to see Superintendent of Terminals Burl Scott about being paid for the days he was held out of service between April 10 and 12. Johnson had filed a time claim for those days under his collective bargaining agreement but Scott had decided that NSR would not pay any of the claims. During that conversation, Scott noticed for the first time that Johnson had a severe limp and was in obvious pain. Scott shared his observation with Johnson who explained that his knee was hurting due to an arthritic flare-up. Scott expressed concern that Johnson might injure are himself on the job, which required him to walk on uneven ground, rock ballast, rail ties and rails, and to mount and dismount locomotives using ladders. Johnson said that he had been performing his job safely since April 12 and offered to complete a field test to show his ability to perform his essential job functions.

Scott declined Johnson's offer and took him out of service citing safety concerns. Scott told Johnson that he would contact the NSC Medical Department, which he did later that day. Specifically, Scott called the NSC Medical Director, C. Ray Prible, M.D., and told him that Johnson had completed a fitness for service examination a couple of weeks earlier and had been released to return to work, but that he was now limping around the yard in apparent pain. Scott told Dr. Prible that Johnson admitted that he was hurting, and Scott recommended taking Johnson out of service because he was a falling risk out it' the yard. Dr. Prible said that he would investigate the matter and agreed that Johnson should be placed on a "medical hold" to protect his safety pending an evaluation. A "medical hold" is a temporary removal from active service pending a determination of an employee's fitness for service. Only the NSC Medical Department can place an employee on medical hold. However, a supervisor who has concerns about an employee's fitness for service is expected to contact the NSC Medical Department for advice, and an employee may be placed on medical hold based on a supervisor's reported observations.

After speaking with Dr. Prible on April 26, 2000, Scott sent him an e-mail message, copied to Dr. Paula Lina, stating:

This man has a severe problem with his knee. He limps real bad and admitts (sic) he is in a lot of pain. He says he has a bad "arthris" (sic) condition, this no doubt is magnifled" by his weight. Personal observation of about 300 pounds, 5'11" tall.
He was off recently and brought release from personal doctor, sent to Hammond clinic released for work???? With a bad limp.
He was told to send in medical to you on this before and he was off over a month with the same condition. He was told he cannot work until he provides complete medical from his doctor to you.
Johnson Dep. Ex. 13. Johnson notes that the e-mail message inaccurately states that he was off work for one month for his knee condition, and fails to reveal that he obtained a doctor's release because Zimmerman took him out of service. In any event, Dr. Prible referred the matter to Dr. Lina and Nurse Dozier.

At Dr. Lina's request, Nurse Dozier looked into the matter and reported that Johnson's supervisor presumably Scott — had observed Johnson walking with a severe limp. She also relayed that Johnson had told Scott that he was experiencing a lot of pain in his knee. Based on this information, Dr. Lina recommended that Nurse Dozier place Johnson on medical hold pending further evaluation of his fitness for service. Dr. Lina knew that Johnson had successfully completed a fitness for service evaluation on April 12. 2000, but she determined that further evaluation was necessary because Scott's personal observations of Johnson on April 26 gave her a reasonable belief that Johnson's condition might have changed and was now impairing his ability to perform his job. Dr. Lina felt that it was most appropriate to obtain information from Johnson's treating physician rather than relying on a field test because his physician could clarify Johnson's condition and history of treatment, as well as their effect on his ability to work.

On April 27, 2000, Nurse Dozier sent Zimmerman an e-mail message instructing him to place Johnson on medical hold and to inform Johnson that his doctor needed to provide the NSC Medical Department with information about his current condition, including any recommendations as to the need for work restrictions or accommodations. Scott called Johnson that day to request the information and confirmed the conversation by letter dated April 28, 2000. Also on April 28, Johnson returned to Union Health Service for a previously scheduled appointment with Dr. Pahwa to review the results of his MRI. Johnson was walking with a cane and complained to Dr. Pahwa that he continued to have knee pain. He also told the doctor that he was off work. Dr. Pahwa gave Johnson a new prescription for Indocin and told him to begin physical therapy on his knee. At Johnson's request, Dr. Pahwa signed a note stating that Johnson was "physically able to return to work as of 4/28/00." NSC points out that the doctor did not express an opinion as to Johnson's ability to perform the specific job duties of a locomotive engineer. Johnson claims that Dr. Pahwa knew he was an engineer; however, he presents no evidence that Dr. Pahwa knew his specific job duties aside from the description Johnson gave him on April 7, 2000 — i.e., that he "sit[s] down on my rump and out rig[s] a locomotive all day." Johnson Dep., pp. 87-88; Pl. Facts ¶ 40.

On April 29, 2000, Johnson received Scott's letter requesting medical records — Johnson called Union Health Service to ask for the records and was informed that he needed to come in, sign a release and pay a fee. Johnson complied with these instructions and was told that he would be notified when the records were ready for pick-up. Early the next week, Johnson went to Scott's office with his April 28 work release and asked if he could return to work. Scott told him that he could not return until the NSC Medical Department cleared him for work, which it could not do until it received his medical records. Johnson understood that the decision to remove him from medical hold had to be made by the Medical Department.

Johnson started physical therapy on May 3, 2000. Shortly thereafter, he picked up his medical records and asked that the Superintendent's office forward them to the NSC Medical Department. The records were faxed as requested on May 9, 2000. Dr. Lina reviewed the records and determined that she did not have sufficient information to assess Johnson's fitness for service. The records indicated that Johnson was experiencing ongoing symptoms with his knee and needed a cane to walk. He had a reduced range of motion in his knee and was prescribed stronger medication and physical therapy. Dr. Lina remained concerned that Johnson's knee condition represented a significant safety risk and would impair his ability to climb and walk on uneven terrain, especially because he was using a cane. She was also concerned that Johnson's doctor did not have a full understanding of Johnson's job duties given that he was given a full release to work even though he was walking with a cane. Accordingly, Dr. Lina faxed a letter to Dr. Pahwa on May 10, 2000 requesting that he provide additional in formation on Johnson's condition in light of his specific job duties, which she described in the letter. The following day. Dr. Lina received a faxed from the Union Health Service stating that Johnson had an appointment scheduled with Dr. Pahwa on June 9, 2000, which he "must keep per Dr."

By June 1, 2000, Dr. Lina still had not received the information she requested on May 10, Thus, she sent an e-mail message to Scott asking him to contact Johnson and advise him that they were still waiting for some information from his doctor. On June 5, 2000, Superintendent D.C. Talley sent a letter to Johnson instructing him to provide the NSC Medical Department with all relevant medical records and a current work release from his physician. Johnson was examined by Dr. Loughran at the Union Health Service on June 9, 2000 and reported that he had attended physical therapy and was feeling better. Dr. Loughran told Johnson that he could work without restrictions and that no further treatment was necessary. He gave Johnson a prescription ...


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