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SMITH v. UNION PACIFIC RAILROAD

February 5, 2004.

ROBERT SMITH, Plaintiff,
v.
UNION PACIFIC RAILROAD, Defendant



The opinion of the court was delivered by: JOHN W. DARRAH, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Robert Smith, filed a suit against the Defendant, Union Pacific Railroad, alleging Union Pacific failed to accommodate his disability in violation of the American with Disabilities Act, 42 U.S.C, ¶ 12101 et seq. Both parties have moved for summary judgment.

Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact," Fed, R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S, 317, 322-23 (1986). All the evidence and the reasonable inferences that may be drawn from the evidence are viewed in the light most favorable to the nonmovant. Miller v. American Family Mutual Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000), Summary judgment may be granted when no "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, a party cannot defeat summary judgment by relying on unsubstantiated facts. See Greer v. Board of Educ. of the City of Chicago, 267 F.3d 723, 729 (7th Cir. 2001).

  Smith began working for Union Pacific on November 30, 1998. Smith was hired to work on a road, as opposed to a yard, in the seniority district headquartered in St. Louis on the St. Louis Page 2 Service Unit. Smith had six to eight weeks of training and was then assigned to work train runs from Dupo, Illinois to Jefferson City, Missouri. Smith always worked under the supervision of a qualified conductor and never completed enough trips to work without, supervision. Smith was furloughed in February 1999. (Def.'s 56.1(a)(3) Statement ¶ 13).

  In early 2000, Union Pacific determined that it had a shortage of trainmen/conductors on the Chicago Service Unit ("CSU"). Before hiring new employees, Union Pacific mailed letters to furloughed conductors from St. Louis and other areas that offered the opportunity to transfer seniority to a district on the CSU. In accordance with the customary practice and as was provided by the various collective bargaining agreements, employees accepting the transfer had to relinquish their seniority rights on their former district and start with a new seniority date as of the date of transfer to the new district. (Def.'s 56.1(a)(3) Statement ¶ 14). The transfer also carried some incentives to induce employees to transfer. The employees were provided motel lodging for 30 days plus a per diem and other allowances. In addition, those accepting transfer were paid bonus incentives of $1,500 as soon as they transferred and an additional $3,000 after working 60 days in the new district. An additional $4,000 would be paid after 180 days if they were "marked up" (available for service) and working at the new location. (Id., 16).

  Smith was offered and accepted the transfer to be a conductor/brakeman on road seniority district NE 2, Smith accepted the transfer only because he was advised that after a year on furlough, he would lose all employment rights. Subsequent to Smith's accepting the transfer, Fred Sagedal, the manager of Manpower Planning for the Northern Region, which includes the CSU, learned from Labor Relations that an exception was reached waiving this provision for one time. (Def.'s 56.1(a)(3) Statement ¶ 16). Page 3

  Smith began orientation training at Proviso on February 28, 2000. Smith started working as a trainee on his new seniority district on March 7, 2000. He worked with qualified conductors on trains traveling from Proviso to Janesville and Milwaukee, Wisconsin. Smith did not complete the familiarization and qualification training on the NE 2 district and did not qualify to work alone as a conductor. (Def.'s 56.1(a)(3) Statement ¶ 18). Smith was not happy with his transfer, especially after learning that others who did not transfer did not lose their seniority. Smith also felt that there were a number of advantages to working under the St. Louis collective bargaining agreement compared to the CSU collective bargaining agreement (Id., ¶ 17). Smith received the first of the two incentive payments of $1,5000 and $3,000, Smith was not eligible for the final payment because he was not actively working 180 days after he accepted the transfer. (Id., ¶ 23),

  Between March 7 and May 7, Smith missed several days of work. According to records and a calendar generated by Crew Management Services, Smith missed calls on April 10 and 12 and was shown as "laid off personal." From April 20 through 23, the crew caller records show Smith's status as "laid off sick," (Def.'s 56.1(a)(3) Statement ¶ 24). Smith did not work after May 7, 2000, although he was called for work for a period of time. The CMS records show that beginning on May 8, Smith was laid off on personal leave until May 13, then laid off sick for a day-and-a-half, then missed calls from May 15 through 26, except for May 16 when it is reported that he refused a call. (Id., ¶ 25).

  On May 27, 2000, Sagedal became aware of Smith's failure to be available for work. Sagedal directed the crew caller to contact Smith and direct Smith to call Sagedal concerning his status. The crew caller records show that on May 26, 2000, Smith's home telephone was called and that a woman answering the telephone stated that Smith was out but had been there and that she Page 4 would convey the message that Smith was to contact Sagedal about Smith's status. Sagedal also directed that Smith be considered as AWOL and carry the status of "EA", meaning evading assignment, until Smith contacted him. (Def.'s 56.1(a)(3) Statement ¶ 26). Smith lived at his parents' home at this time, and his mother was the only woman living there at this time. Smith was not aware of receiving the message to call Sagedal, although he is certain that his parents would have conveyed the message. Smith had previously talked with Sagedal on several occasions concerning the transfer of seniority districts but did not relate to Sagedal that he had any mental health issues. Smith never told anyone at the railroad about any mental health issues before he transferred to Chicago. (Id., ¶ 27).

  Once Smith's status was changed to EA, the crew callers did not try to contact him for assignments. The EA status also removed Smith from the monthly reports that identified for the service units those employees whose attendance reflected missed weekend calls and other sporadic attendance problems. (Def.'s 56.1(a)(3) Statement ¶ 28). Smith never called or otherwise contacted Sagedal after May 26, 2000. Sagedal never received any other information about Smith's status from any source until he inquired about Smith in January 2001, (Def.'s 56.1(a)(3) Statement ¶ 29).

  Smith did not disclose any history of depression or mental health problems on his employment application, wherein he agreed to truthfully answer all pertinent questions connected with a physical examination. Smith completed and signed as truthful a "Post-Offer Pre-Placement Medical History" and checked "no" to lines asking if he had ever had any anxiety/depression or other mental problems, took any medications, or had any problems that might interfere with his ability to work safely and efficiently. He also indicated that he did not need any accommodations to work safely or efficiently, (Def.'s 56.1(a)(3) Statement ¶ 30). Page 5

  Smith claims that he stopped working in May 2000 because of depression, a condition first diagnosed in 1990 or 1991, He testified that while he was still working at Proviso, he felt he needed time off of work to see a doctor since his medication was running low; but he did not believe that, he was able to see his doctor despite taking time off in April 2000. (Def.'s 56.1(a)(3) Statement ¶ 31), Smith felt that he was "a little depressed" about being forced to stay in Chicago, which caused him to be away from his family and support system. Another factor that may have been a precipitating factor of his stopping work was the "fluctuating work schedule," (Id., ¶ 32). Smith also felt anxiety and frustration about one of the conductors with whom he was training, since their "personalities just didn't mesh" and he would have preferred to work with another individual. (Id., ¶ 33; Plaint's Response ¶ 33).

  Smith claims that before he left the Chicago area, he told a crew caller that he was sick and needed some time off from work. He did not contact anyone else with the railroad at this time about his status, Upon returning to his home area, Smith did not immediately seek medical treatment. (Def,'s 56.1(a)(3) Statement ¶ 34). A crew caller can allow employees in the Chicago area to mark off sick but only for 12 to 24 hours and for not more than 3 days. After that, a manager in CMS or in the field would have to be involved. Due to the number of employees, such statuses are not monitored on a daily basis. (Id., ¶ 35).

  Sometime in June 2000, Smith telephoned Don Warner of Union's Employee Assistance Program. Smith told Warner that he was off sick, and Warner asked about his illness. Smith explained that he had some problems with depression. He told Warner that he was being treated for his condition and needed information about how to take time off from work. Warner asked if he wanted EAP assistance to obtain counseling, but Smith said he was getting counseling and just Page 6 needed information about a leave. Warner told Smith that he needed to contact his local manager and let them know that he was ill. (Def.'s 56.1(a)(3) Statement ¶ 37). Warner told Smith that he needed to contact his service unit to arrange for a leave of absence because Smith did not want Employee Assistance to open a file on him to oversee his status. Warner advised Smith that without opening ...


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