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August 1, 2005.

BROTHERHOOD OF MAINTENANCE WAY EMPLOYEES; BURLINGTON SYSTEM; BURLINGTON NORTHERN SYSTEM; and SANTA FE SYSTEM FEDERATIONS OF THE BROTHERHOOD OF MAINTENANCE WAY EMPLOYEES, on behalf of themselves and all members in the class of persons harmed; and KENNETH RASHID and MICHAEL SCOTT, individually and on behalf of all similarly situated track employees, Plaintiffs,

The opinion of the court was delivered by: RUBEN CASTILLO, District Judge


Plaintiffs Brotherhood of Maintenance Way Employees, Burlington System, Burlington Northern System, Santa Fe System Federations of the Brotherhood of Maintenance Way Employees, Kenneth Rashid, and Michael Scott (collectively "BMWE") allege that Defendant Burlington Northern and Santa Fe Railway Company ("BNSF") violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, by refusing to reasonably accommodate employees with disabilities who are unable to fulfill a truck licensing and certification requirement. (R. 1, Compl. at 1 ¶ 1, 4 ¶ 1.) BNSF's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) is currently before the Court. (R. 8-1.) For the reasons provided below, we partially grant and partially deny BNSF's motion to dismiss. RELEVANT FACTS*fn1

BNSF is a common carrier and the nation's second-largest railroad. (R. 1, Compl. at 2 ¶ C.) BMWE is a labor organization which represents over 90% of the maintenance of way employees in the United States and Canada. (Id. at 2 ¶ A.) BNSF and BMWE are bound by a collective bargaining agreement ("CBA"). (R. 10, Def.'s Mem., Ex. 2, CBA.) The CBA contains rules governing "the hours of service, rates of pay and working conditions of all employees not above the rank of . . . foreman[.]" (Id., Ex. 2, CBA at 2.) The CBA also contains procedures through which employees may bid on new positions. (Id., Ex. 2, CBA at 22-25.) Specifically, the CBA states that "all . . . new positions . . . shall be bulletined in the seniority district for the sub-departments involved." (Id., Ex. 2, CBA at 22.) It also states that "[e]ach new position or vacancy bulletined as provided in Rule 21 will be assigned to the senior qualified applicant who holds seniority on the seniority roster from which the position in question is filled and in the rank of that position." (Id., Ex. 2, CBA at 24.)

  BNSF truck drivers must have a commercial driver's license and be certified by the Department of Transportation ("CDL/DOT certification"). (R. 1, Compl. at 4 ¶ 1.) A person with physical impairments such as a heart condition, vision problems, or renal failure cannot obtain the CDL/DOT certification. (Id. at 12 ¶ 4.) In January 2001, BNSF began requiring its foremen to be CDL/DOT certified. (Id. at 4 ¶ 2.) Approximately fifty disabled foremen were unable to obtain the CDL/DOT certification and at least two foremen lost their jobs as a result. (Id. at 6 ¶ 5, 9 ¶ 11.) Welders also must be CDL/DOT certified. (Id. at 4 ¶ 2.) BNSF accommodated some disabled, uncertified welders and foremen by either allowing them to obtain state licenses to operate trucks within a state, applying the CDL/DOT certification requirement in a manner which allows them to keep working, or by simply ignoring the CDL/DOT certification requirement. (Id. at 6 ¶ 6; 10 ¶ 13.)

  BMWE claims that BNSF's application of the CDL/DOT certification requirement to disabled individuals violates the ADA. As a result, BMWE seeks declaratory relief finding BNSF's policy illegal and stating that BNSF may not make CDL/DOT certification a condition of employment for disabled foremen. BMWE also seeks equitable relief preventing BNSF from applying the CDL/DOT certification requirement to disabled track workers. (Id. at 15 ¶¶ 1-3.) BMWE seeks relief on behalf of a class of "all BNSF employees holding track foremen or welder seniority dates as of January 1, 2001 who were at varying times since then disqualified from their position by reason of being unable to obtain CDL/DOT certification because of physical or mental disabilities." (Id. at 11 ¶ 1.)


  In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), we must "accept the complaint's well-pleaded factual allegations as true and draw reasonable inferences from those allegations in favor of the plaintiff." United Transp. Union v. Gateway W. Ry. Co., 78 F.3d 1208, 1210 (7th Cir. 1996). When the accuracy of the complaint's statement of subject matter jurisdiction is in dispute, however, the Court may look beyond the complaint to review any evidence the parties submit to illuminate the jurisdiction question. Alicea-Hernandez 320 F.3d at 701; see also Sapperstein v. Hager, 188 F.3d 852, 856 (7th Cir. 1999) (stating that "[t]he presumption of correctness that we accord to a complaint's allegations falls away on the jurisdictional issue once a defendant proffers evidence that calls the court's jurisdiction into question"). Ultimately, the plaintiff bears the burden of establishing that it has satisfied the jurisdictional requirements. See Kontos v. U.S. Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987).


  I. Federal Claim Preclusion Under the Railway Labor Act

  To resolve the present motion, we must determine whether the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-188, precludes BMWE's ADA claim and thereby deprives this Court of subject matter jurisdiction. (R. 10, Def.'s Mem. at 2.) Congress enacted the RLA, in part, "to provide for the prompt and orderly settlement of all disputes growing out of . . . the interpretation or application of agreements covering rates of pay, rules, or working conditions." 45 U.S.C. § 151a(5). In order to accomplish this goal, the RLA sets up a mandatory arbitral mechanism to handle such disputes. 45 U.S.C. § 153 First (i); see also Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 248 (1994). All "minor disputes" are subject to this arbitration mechanism. Hawaiian Airlines, 512 U.S. at 252-53. Minor disputes are those which involve the interpretation or application of existing labor agreements, or which involve the duties or rights created or defined by a CBA. Id. at 252-53, 258. If BMWE's claim constitutes a minor dispute, then it is subject to the RLA's mandatory arbitration mechanism. Id. at 253; Tice v. Am. Airlines, Inc., 288 F.3d 313, 314 (7th Cir. 2002) ("Tice I"). Accordingly, this Court would lack subject matter jurisdiction to review the claim. Brown v. Ill. Cent. R.R. Co., 254 F.3d 654, 658 (7th Cir. 2001).

  To decide whether a minor dispute exists, we must first determine whether we will have to interpret or apply the CBA in order to resolve BMWE's ADA claim. Lingle v. Norge Div. of Magic Chef. Inc., 486 U.S. 399, 407 (1988); see also Hawaiian Airlines, 512 U.S. at 262. If the dispute touches only tangentially on the CBA, the RLA will not preclude the ADA claim. Monroe v. Missouri Pac. R.R. Co., 115 F.3d 514, 519 (7th Cir. 1997). If the outcome of the dispute depends on one party's preferred interpretation of the CBA, however, it should be resolved by an arbitrator pursuant to the RLA. Tice I, 288 F.3d at 315. In other words, BMWE's ADA claim is precluded by the RLA if "it cannot be adjudicated without interpreting the CBA, or if it can be `conclusively resolved by interpreting the CBA.'" Brown, 254 F.3d at 658 (citing Hawaiian Airlines, 512 U.S. at 261-62).

  The ADA prohibits employers from discriminating against "qualified individual[s] with disabilities," which includes failing to make reasonable accommodations to the known limitations of an otherwise qualified disabled individual. 42 U.S.C. § 12112(a) & (b)(5)(A); Brown, 254 F.3d at 659. An ADA claimant must demonstrate that he can perform the "essential functions" of the job at issue with or without a reasonable accommodation. Brown, 254 F.3d at 659. A plaintiff may bring an ADA claim in federal court "unless the resolution of [the] ADA claim requires the court to interpret the CBA's terms as a potentially dispositive matter." Id. at 664 (emphasis in original). The ADA, however, does not require accommodations that sacrifice the collectively bargained-for seniority rights of other employees. Id. at 661 (citing Eckles v. Consol. Rail Corp., 94 F.3d 1041, 1051 (7th Cir. 1996)). Thus, a requested accommodation that would interfere with a CBA's seniority system would require the Court to interpret the CBA's seniority provisions as a potentially dispositive matter. Id. In those circumstances, the RLA would preclude federal court jurisdiction over the ADA claim. Id.

  II. BMWE's Requested Accommodation

  In its original complaint, BMWE requests an accommodation in the form of a waiver of the CDL/DOT certification requirement. (R. 1, Compl. at 15.) BNSF argued in its opening brief that the RLA precludes BMWE's ADA claim because a waiver would bypass the CBA's bulletining procedures and would require the Court to interpret the CBA as a potentially dispositive matter. (R. 10, Def.'s Mem. at 1-2.) In response, BMWE clarifies that its requested accommodation is designed to work within the bargained-for bulletining procedures set forth in the CBA and allows bulletining of the positions pursuant to the CBA's requirements.*fn2 BMWE states that the accommodation could be accomplished by one of two methods. First, BMWE states that "[t]he sole accommodation requested is to bulletin the jobs as they had been, without [the] CDL/DOT requirement." (R. 14, Pls.' Resp., Ex. 3, Am. Compl. at 11 ¶ 15(e).) The waiver could ...

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