United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Johnson Coleman Judge.
plaintiff, Ronald Shell, brought this action against the
defendant, Burlington Northern Santa Fe Railway Company
(“BNSF”), alleging that BNSF discriminated
against him in violation of the Americans with Disabilities
Act (“ADA”) and the Illinois Human Rights Act
(“IHRA”). BNSF now moves this Court for partial
judgment on the pleadings based on Shell's alleged
failure to exhaust his administrative remedies with respect
to two of his three ADA claims. For the reasons set forth
herein, BNSF's motion for partial judgment on the
pleadings  is granted in part and denied in part.
following facts are taken from the complaint and are accepted
as true for the purpose of ruling on the present motion. In
1977, the Santa Fe Railway, a predecessor company to BNSF,
hired Shell as a driver in its Corwith yard. Plaintiff was
employed by Santa Fe, and subsequently by BNSF, until 2000,
when BNSF subcontracted the operation of the yard to Midwest
Terminal Service and Rail Terminal Services
(“RTS”). Shell was employed by RTS from 2000
until 2010. In 2010, BNSF informed RTS's employees that
it would be taking over all operations in the yard in January
2011, and that RTS employees would need to reapply to BNSF in
order to retain their jobs. Shell timely submitted an
application for the position of Intermodal Equipment
Operator, the job he had been performing for the previous
the submission of his application, Shell took a
pre-employment aptitude test and a drug test and successfully
interviewed for his position (with one interviewer commenting
that Shell “could teach them a thing or two about the
job.”). Shell was extended a conditional offer of
employment, premised in pertinent part on his successful
completion of a physical examination. Following a physical
capabilities test, Shell was informed that he did not meet
the minimum physical demands of the essential functions of
the Intermodal Equipment Operator. Shell met with BNSF's
Director of Medical Support Services, who informed Shell that
his BMI indicated that he likely suffered from sleep apnea,
and that he would need to undergo a sleep study at his own
expense. Shell was subsequently retested, and was informed
that he had passed his physical capabilities test.
Nonetheless, he was informed that BNSF was requiring him to
undergo tests for sleep apnea and that it would require his
medical records for the past seven years. BNSF subsequently
rescinded its conditional offer of employment on November 9,
2010, stating that Shell was not qualified for his
“safety sensitive” position in light of the
“significant health and safety risks associated with
Class 3 Obesity (Body Mass. Index above 40)”.
not contained in the complaint, this Court takes notice of
Shell's EEOC charge of discrimination,  which read:
FAILURE TO HIRE-NOVEMBER 9, 2010, BASED ON A PERCIEVED
PHYTSICAL DISABILITY, OBESITY B. PRIMA FACIE ALLEGATIONS
1. In July 2010, I applied for an intermodal equipment
operator position with Respondent.
2. I was qualified to be hired by Respondent.
3. I have objective reason to believe that Respondent
erroneously perceives me to have a disability within the
meaning of the Act.
4. On November 9, 2010, Respondent's comprehensive health
services department informed me that I was not medically
qualified for the safety sensitive intermodal equipment
operator position due to significant health and safety risks
associated with Class III obesity, because my body mass index
was above 40.
30-2). The EEOC issued Shell a notice of right to sue, and
Shell subsequently initiated the present action.