MARK MLSNA, Plаintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee.
No. 19-2780
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 27, 2020 — DECIDED SEPTEMBER 14, 2020
Before EASTERBROOK, HAMILTON, and BRENNAN, Circuit Judges.
Appeal from the United States District Court for the Western District of Wisconsin. No. 18-cv-37-wmc — William M. Conley, Judge.
In the United States Court of Appeals For the Seventh Circuit
BRENNAN,
According to the railroad, this placed him in violation of a policy which requirеs that protection be
The conductor sued arguing that the railroad discriminated against him because of his hearing disability. The district court granted summary judgment to the railroad, finding that the conductor “failed to marshal enough evidence for a reasonable jury to conclude that he could fulfill the essential functiоns of the train conductor position with a reasonable accommodation.” We view the record differently. Issues of fact exist as to whether wearing hearing protection is an essential function of the plaintiff‘s work as a conductor, as well as whether reasonable accommodations for the conductor were properly considered. So we reverse and remand for further proceedings.
I
A. Factual Background
Mark Mlsna has experienced hearing loss since youth. Although the precise cause is not known, at an early age he was exposed to loud farming equipment. He bеgan working as a train conductor in the late 1990‘s, and in 2006 he was hired by Union Pacific. At that time, Mlsna had worn hearing aids for more than 10 years. Union Pacific was aware of Mlsna‘s hearing impairment when he was hired.
In 2012 the Federal Railroad Administration implemented regulations to ensure that train conductors possessed hearing acuity, and to confirm that railroads appropriately protected
and conserved their employees’ hearing. A grandfather clause granted thirty-six months after which Union Pacific required all conductors to comply with the hearing acuity regulation.
Without his hearing aids and without hearing protection, Mlsna did not pass the hearing acuity test. The results showed that he “had an average loss of 65 decibels” in his better ear. Mlsna also did not pass the audiological test using the Pro Ears–Gold. Rather, he passed only when he relied on his hearing aids with no additional hearing protection. Later Mlsna was retested with the same results: he passed, but only while wearing hearing аids without hearing protection.
After receiving the test results, Union Pacific decided it could not recertify Mlsna to work as a conductor. When he wore hearing aids and passed the hearing acuity requirement he was in violation of Union Pacific‘s hearing conservation policy, which required additional hearing protection. And when he complied with that policy by wearing the Pro Ears–Gold, he could not pass the hearing acuity test.
To address this problem, Mlsna proposed he use a custom-made hearing protection called the E.A.R. Primo. But Union Pacific rejected his propоsal because that device did not have a factory-issued or laboratory-tested noise reduction rating, as required by
identified an alternative to the device it had suggested, the Pro Ears–Gold. Union Pacific declined to recertify Mlsna as a conductor and his employment was terminated.
To elucidate the parties’ dispute and their arguments, more detail is necessary on the 2012 revisions to the Federal Railroad Administration regulations. Under the hearing acuity regulation,
Under the hearing protection regulation,
The hearing protection regulation sets a floor, not a ceiling.
exceeding an 8-hour time weighted averаge sound level of 85 decibels” or if they work “in identified hearing protection areas” or within 150 feet of a locomotive. The railroad also required all employees subject to its policy to wear a device with a published noise reduction rating.
To measure decibel levels, railroads are required to conduct either “area sampling,” which takes several noise measurements at different locations within a workplace, or “representative personal sampling,” which measures the exposures of employees who operate similar equipment under similar conditions.
If the hearing protection regulation (§ 227.115(c) or (d)) applies, the employer “must select one of ... three methods by which to estimate the adequacy of hearing protector attenuation.”
C. Procedural Background
Back to this case: Mlsna sued Union Pacific, claiming the railroad terminated him because of his hearing impairment and so violated the Americans with Disability Act.
A disparate treatment claim arises from ADA language prohibiting covered entities from “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee.”
A failure-to-accommodate claim is grounded in ADA language defining discrimination in part as “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual.”
Whether Mlsna‘s complaint is read as claiming disparate treatment, as seeking a reasonable accommodation, or both, these claims share the element that the plaintiff be able to perform the essential functions of the job with or without reasonable accommodations. On that element, the district court granted summary judgment to Union Pacific, concluding that Mlsna failed to present evidence for a reasonable jury to find that he could fulfill the essential functions of the train conductor position with a reasonable accommodation.
In considering whether Mlsna was a qualified individual able to perform essential functions, the district court ruled
that no jury could conclude that the railroad acted unreasonably in making the use of hearing protection an essential function of the conductor position. The court also decided that no reasonable accommodation existed for Mlsna. While Mlsna offered the E.A.R. Primo as an accommodation, the court decided that he had not presented evidence from which a reasonable jury could conclude that Union Pacific‘s stated reason—the lack of a noise reduction rating—was pretext, or that the E.A.R. Primo would permit him to fulfill the essential functions of a conductor. So the district court found that the railroad‘s rejection of the E.A.R. Primo was reasonable.2
Mlsna appeals. We “review summary judgment de novo, and will affirm when—viewing the evidence in the light most favorable to the nonmovant and drawing all reasonable inferences in its favor—there is nо genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Scheidler, 914 F.3d at 540.
II
The parties do not dispute that Mlsna had the requisite background, experience, and knowledge to work as a train conductor. They also agree that his hearing impairment is a qualifying disability under the ADA, and that his disability was the reason he was not recertified to continue as a conductor. In dispute is whether Mlsna can perform the essential functions of the position of train conductor with or without reasonable accommodation.
A. Essential Functions
When deciding whether a qualified individual is able to perform essential functions, “consideration shall be given to the employer‘s judgment as to what functions of a job are essential, and if an employer has prepared a written description ... , this description shall be considered evidence of the essential functions of the job.”
The district court agreed with Union Pacifiс that wearing hearing protection is an essential function of the train conductor position. In so concluding, the court considered various pieces of evidence:
- the job description of conductor
- the requirement to use hearing protection if exposed to an eight-hour time weighted average of 90 decibels or more in
49 C.F.R. § 227.115(d) ; - Union Pacific‘s representative sampling data, which the court said revealed a reasonable likelihood that conductors will be exposed to excessive noise;
- Mlsna‘s amended complaint, in which he stated “Train Crewm[e]n work in a noisy environment and are therefore required to wear hearing protection;” and
- Mlsna‘s deposition, in which he acknowledged the importance that conductors wear appropriate hearing protection.
“Whether a function is essential is a question of fact, not law.” Tonyan v. Dunham‘s Athleisure Corp., 966 F.3d 681, 687 (7th Cir. 2020) (citing Brown v. Smith, 827 F.3d 609, 613 (7th Cir. 2016)). “We usually do not ‘second-guess the employer‘s judgment in describing the essential requirements for the job.’ But this deference is not unqualified.” Id. (quoting DePaoli v. Abbott Labs., 140 F.3d 668, 674 (7th Cir. 1998)). Our examination of this record yields fact questions as to whether wearing hearing protection is an essential function of Mlsna working as a conductor.
Union Pacific‘s job description for train crew includes the рosition of conductor, and it lists essential job functions. While a hearing acuity requirement is not included, some of the functions do involve hearing. The job description includes accountabilities (“[c]ommunicating clearly with co-workers and train dispatchers via radio“), preferred education, training, experience or skills (“Active [l]istening: [a]ttending to and understanding key pieces of spoken information“), and work conditions (“Must wear personal protection equipment such as ... hearing protection where the company requires.“). If the only evidence on this topic were the job dеscription, the district court‘s conclusion that wearing hearing protection is an essential function of working as a conductor would not be “second guessed.”
But the regulatory requirement to use hearing protection exposes a factual dispute. The default rule under the hearing protection regulation,
weighted average of 90 decibels or higher. On this standard, the only evidence which shows the sound level that Union Pacific conductors are exposed to is a dosimetry data sеt that stretches back to 1980.3 That data was collected using representative personal sampling under
Mlsna points out that “[t]he single most recent measurement meeting or exceeding the 90-decibel threshold was taken in 2001.” According to Mlsna, all measurements taken before 2007 should be disregarded because that year the Federal Railrоad Administration began mandating the use of quieter locomotives. If Mlsna‘s suggestion is followed, no conductors in his position would be subject to an 8-hour time weighted average of 90 decibels or higher, and the hearing protection regulation would not apply to him. Union Pacific disagrees and recommends that the entire data set be considered instead of accepting Mlsna‘s “novel theory” of reviewing some but not all the data.
We decline to adopt Mlsna‘s suggestion that the analysis be limited to data after 2007. Doing so would require that a
bright line be drawn without the guidance of expert testimony. Mlsna is correct, however, that much of the data Union Pacific provided are not relevant, and reasonable inferences from the data run in Mlsna‘s favor as the nonmovant on whether the hearing protection regulation applies to him.
Under the 90-decibel threshold detailed in
Mlsna was never exposed to that noise level, Union Pacific‘s more stringent policy of 85 decibels over the same time frame does not mandate that Mlsna wear hearing protection.
While a bright line does not separate obsolete data points from useful ones, the representative sampling dosimetry data permit a reasonable jury to conclude that when Mlsna was terminated in 2015, conductors working for Union Pacific were not exposed to time-weighted averages of 90 decibels or higher. Simply put, a genuine fact issue exists as to whether the data are a basis for the hearing conservation policy to apply to Mlsna. He was not even hired as a conductor by Union Pacific until 2006, five years after the last data showing a conductor for Union Pacific was exposed to
Mlsna argues that by including measurements from before 2000, the railroad places its thumb on the scale to present dosimetry data falling within the regulation‘s parameters. Union Pacific calls this “historical monitoring,” which is done to achieve statistical significance; that is, to show the data are not due to random or chance events. But drawing all reasonable inferences in Mlsna‘s favor, Scheidler, 914 F.3d at 540, sampling that includes measurements from over 20 and 30 years ago is not “representative” of Mlsna‘s noise exposure or the exposures of other conductors who operate similar equipment under similar conditions.
Mlsna‘s pleading or deposition responses do not support summary judgment for the railroad either. Mlsna‘s admission in his amended complaint that hearing protection is required, and his deposition statement that hearing protection is important, just echo the Federal Railroad Authority regulations. Even if those regulations capture the essential functions of the
conductor job generally, there are genuine issues of material fact as to whether Union Pacific‘s more stringent policy was an essential function of Mlsna‘s position.
A job function also may be considered essential because “the position exists ... to perform that function.”
The parties also dispute whether the essential function of a conductor should be considered more narrowly—as whether Mlsna met the hearing acuity standards while wearing hearing protectiоn. But if characterized that way, then the grant of summary judgment to Union Pacific has even less support. The district court concluded that meeting the hearing acuity standards while wearing hearing protection was an essential function of the conductor job. But the plain text of the hearing acuity regulation does not mention wearing hearing protection. Rather, the hearing test must show, without qualification, that “[t]he person does not have an average loss in the better ear greater than 40 decibels with or without the use of a hearing aid, at 500 Hz, 1,000 Hz, and 2,000 Hz.”
not. See Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another ... it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.“)
This case presents a two-edged problem. The regulations require that conductors have hearing acuity, as well as that their hearing be protected and conserved. But from this record it does not appear that Union Pacific can test hearing acuity under noisy working conditions. The railroad does not have dosimetry data that encompass the generation of locomotives currently in use or a plaintiff such as Mlsna. So on this record it does not follow as a matter of law that an essential function of Mlsna‘s job as a conductor was to pass the hearing
Whether the essential function is defined as Mlsna wearing hearing protection, or Mlsna passing the hearing test while wearing hearing protection, the analysis leads to the same conclusion: this record presents questions of fact.
B. Reasonable Accommodation
In addition to a claim of disparate treatment, Mlsna‘s complaint can be read as seeking a reasonable accommodation from Union Pacific as to his hearing disability. Recall that when Mlsna‘s hearing was tested, one of the iterations included him wearing an amplified hearing protection device called the Pro Ears–Gold. Union Pacific did not identify any alternatives to the Pro Ears–Gold. Mlsna proposed he use a custom-made hearing protection called the E.A.R. Primo. Union Pacific rejected his proposal because that device did not
have a factory-issued or laboratory-tested noise reduction rating, as required by
Federal labor regulations definе “reasonable accommodation” as “[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held ... is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position ... .”
This reasonable accommodation evaluation is affected by the essential function analysis. As concluded above, fact issues exist as to whether Mlsna was subject to the hearing protection regulation, § 227.115. If it does not apply to Mlsna, neither would the requirement that a device considered for reasonable accommodation include a published noise reduction rating. That is, if Mlsna is not within the requirement of
search was the conclusion that the hearing protection regulation necessarily applied. Union Pacific rejected all devices other than the Pro Ears–Gold, possibly based on an overly-broad interpretation of the hearing protection regulation. Because Union Pacific doggedly insisted that the device it considered have a published noise reduction rating to determine noise attenuation, the Pro Ears–Gold device was the only device the railroad considered. Without that constraint, Union Pacific could offer more thаn just the Pro Ears–Gold device to accommodate Mlsna, and a reasonable jury could find that Union Pacific could offer more than it did as a reasonable accommodation.
Potential reasonable accommodations were not considered which could have permitted Mlsna to wear hearing protection while also meeting the requirements of the hearing acuity regulation. There is
addressed on remand without the constraint that the accommodating device carry a published noise reduction rating.
The record reveals another fact question on this point. Union Pacific told Mlsna that it engaged in an “extensive search” for adaptive devices, but discovery showed that no such search occurred. The railroad‘s director of disability management asked others to look for other devices for Mlsnа, but the chief medical officer said he did not do so, and the senior manager of industrial hygiene said he had no responsibility to look for other devices. So after Union Pacific rejected Mlsna‘s proposal of the E.A.R. Primo, nobody at the railroad took any additional steps to explore reasonable accommodations.
Because genuine issues of fact exist as to whether Union Pacific reasonably accommodated Mlsna‘s hearing disability, Union Pacific should not have received summary judgment, and this case should return to the district court for further proceedings оn this determination as well. On remand of the reasonable accommodation evaluation, at least three topics warrant consideration.
The first concerns the district court‘s application of a pretext analysis in its reasonable accommodation evaluation. Pretext is the third step in the three-step burden shifting process established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804–07 (1973). This Court has held that “the McDonnell Douglas burden-shifting method of proof is unnecessary and inappropriate” in a failure-to-accommodate claim. Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1283–84 (7th Cir. 1996); see also Lenker v. Methodist Hosp., 210 F.3d 792, 799 (7th Cir. 2000) (“Because Lenker‘s claim was based on reasonable accommodation ... the district court was correct to reject Lenker‘s proposed pretext instruction.“); Weigel v. Target
Stores, 122 F.3d 461, 464 (7th Cir. 1997) (“[I]n failure to accommodate claims the McDonnell Douglas framework is ‘unnecessary and inappropriate.‘“). Instead, “if the plaintiff demonstrated that the employer should have reasonably accommodated the plaintiff‘s disability and did not, the employer has discriminated under the ADA and is liable.” Lenker, 210 F.3d at 799. While evidence of pretext may be relevant in such a case, a pretext analysis need not be part of the reasonable accommodation evaluation.
The second involves the railroad‘s obligation to engage in an interactive process with the disablеd individual to determine an appropriate reasonable accommodation. During such a process, the defendant employer must consider more than just what the plaintiff employee proposes. EEOC v. Sears, 417 F.3d at 807 (noting an employer‘s duty to work with employee to “craft a reasonable accommodation“). A proposed accommodation is not limited to what the plaintiff introduced into
Third, the parties previously debated and the district court ruled on the timeliness of a supplemental expert report Mlsna submitted which referenced devices that would satisfy Union Pacific‘s hearing conservation policy. Given this remand, the court and the parties have a new opportunity to review that report and consider those other devices.
With these items noted, this case is returned to the district court for further consideration.
III
For the reasons above, the grant of summary judgment to Union Pacific is REVERSED and this case is REMANDED for further proceedings consistent with this opinion.