Lincoln v. BNSF Railway Company
900 F.3d 1166
| 10th Cir. | 2018Background
- In 2007 a BNSF tank car leak exposed Larry Lincoln and Brad Mosbrucker to toxic chemicals; after medical complaints and demand letters, BNSF’s MEH removed them from outdoor MOW work and helped them apply for many internal non-MOW positions between 2010–2014.
- Each appellant submitted EEOC charges (Feb. 10, 2013; Mosbrucker later amended in 2015) and OSHA complaints (Lincoln Sept. 12, 2014; Mosbrucker Nov. 13, 2014 and Jan. 28, 2015).
- Appellants sued BNSF alleging ADA discrimination, failure to accommodate, ADA retaliation, and FRSA retaliation. District court dismissed or granted summary judgment on most claims, holding (under Tenth Circuit precedent) that timely EEOC filing was jurisdictional and that appellants failed on qualification/pretext and exhaustion grounds.
- On appeal the panel (with full-court concurrence) overruled Tenth Circuit precedent that EEOC charge-filing is jurisdictional, treating failure-to-file as an affirmative defense instead; it vacated the district court’s jurisdictional dismissals and remanded some claims.
- The panel nevertheless affirmed summary judgment on most position-specific ADA and all FRSA claims on the merits, citing: insufficiency of evidence that appellants were qualified for many jobs; lack of pretext or causal link; exhaustion/waiver issues; and a seriously deficient appellant appendix. The court sanctioned appellants by denying them appellate costs and allowing BNSF to recover its appellate costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EEOC charge-filing is jurisdictional | Lincoln & Mosbrucker: EEOC filing is not jurisdictional; Zipes/Arbaugh support treating timeliness/filing as defenses | BNSF: Tenth Circuit precedent makes EEOC exhaustion jurisdictional (binding) | Filing an EEOC charge is not jurisdictional; failure to exhaust is an affirmative defense (panel circulated to all active judges and overruled prior circuit precedent) — remanded limited jurisdictional dismissals |
| Effect of parties’ stipulation re: exhaustion (¶13) | Appellants: ¶13 waived BNSF’s exhaustion defense for actions on/after April 16, 2012 | BNSF: stipulation resolved only pre-April-16-2012 matters; it did not waive later exhaustion defenses | ¶13 unambiguously states exhaustion was satisfied for actions on/after April 16, 2012; district court should decide whether to enforce the stipulation (remand) given fairness and possible manifest injustice considerations |
| ADA discrimination / failure-to-accommodate for specific positions (qualification, pretext, reassignment) | Appellants: many shop and clerical positions were viable with accommodation/reassignment; BNSF’s ‘‘most-qualified’’ hiring policy cannot block reassignment | BNSF: many positions required outdoor work or prerequisites (aptitude tests, trade experience); other applicants were more qualified; reassignment isn’t automatic if employer has legitimate policy | Most position-specific grants of summary judgment affirmed: appellants failed to show qualification or pretext for most shop/clerk posts; reassignment can be a reasonable accommodation (Smith and Barnett reconciled) so failure-to-accommodate claims survive as to some positions (Boilermaker for both; Lincoln’s Nov. 1, 2012 Carman) — remanded for further proceedings on those limited claims |
| Deficient appellant appendix and sanctions | Appellants: appendix omissions harmless | BNSF: omissions impede appellate review; submitted full supplemental appendix | Appellants’ appendix was seriously deficient; court may (and did) refuse to consider arguments lacking record support, summarily affirm where necessary, and exercised discretion to preclude appellants from recovering appellate costs and permitted BNSF to recover appellate costs |
| FRSA retaliation (exhaustion & decisionmaker knowledge) | Appellants: demand letters/OSH A filings supported FRSA retaliation claims | BNSF: many challenged claims unexhausted and decisionmakers lacked knowledge of protected activity; rejections were for non-retaliatory reasons (e.g., test failures, prerequisites) | Affirmed summary judgment on FRSA claims: plaintiffs failed to show decisionmakers knew of protected activity or that protected activity was a contributing factor; exhaustion windows limited which incidents were actionable |
Key Cases Cited
- Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) (statutory EEOC filing/timeliness is an affirmative defense, not jurisdictional)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (statutory prerequisites are not jurisdictional unless Congress framed them in jurisdictional terms)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for discrimination claims)
- Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (reassignment to a vacant position can be a reasonable accommodation; employee preference may be required)
- US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (reassignment is a reasonable accommodation, but may be limited where it conflicts with important employment policies such as a seniority system)
- Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (each discrete act of discrimination is a separate unlawful employment practice for exhaustion purposes)