United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD (UNITED STATES DISTRICT JUDGE
plaintiff, Jess Mullanix, alleges that he was sexually
harassed by a coworker while employed by the defendant, Union
Pacific Railroad (UP), in 2014 and 2015. Mullanix claims that
after he reported those incidents, UP retaliated against him
by changing his position and cutting his pay. He further
alleges that UP discriminated against him on account of his
disability, and retaliated against him for requesting medical
leave under the Family Medical Leave Act.
has sued UP for disability discrimination under the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101 et
seq., and Rehabilitation Act; hostile work environment
sexual harassment under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq.; and unlawful
retaliation under the ADA and Title VII. UP moves for summary
judgment, arguing that Mullanix's claims fail as a matter
of law. For the reasons discussed below, UP's motion will
following facts are not meaningfully disputed. Jess Mullanix
began his employment with UP in 2011 as a utility clerk. The
following year, Mullanix was promoted to an internal support
services position, which he held until 2015. Filing 28-1
at 3. In that role, Mullanix worked directly with crew
dispatchers and managers, fielding their questions and
assisting with technical support. Filing 28-1 at
7-8. One of those managers was a UP employee named
claims that Bowman harassed him on at least four separate
occasions beginning in 2014. The first incident, Mullanix
alleges, occurred on June 19 when Mullanix left his work
station to use the restroom. Filing 28-1 at 8.
Mullanix says that he was standing at the urinal when Bowman
approached him and asked if he could "piss on demand . .
. can you take your cock and can you piss on demand?"
Filing 28-1 at 8. After a short back-and-forth,
Bowman left the restroom, and Mullanix returned to his work
station. Filing 28-1 at 8. The entire incident-from
Bowman entering the restroom to exiting-lasted approximately
one minute. Filing 28-1 at 8.
by the encounter, Mullanix reported the incident to
Bowman's supervisor, Sara Foust, who sent Bowman home for
the night. Filing 27 at 5; filing 28-1 at 8;
filing 28-5 at 2. Bowman later admitted to Foust
that he "said something in poor taste" to Mullanix
while the two men were in the restroom, attributing the
comment to their shared military experience. Filing 28-6
at 2. Bowman agreed to treat Mullanix "[j]ust like
normal" and to act as if "nothing had
happened" until Foust could work out a resolution
between the parties. Filing 28-6 at 3. Meanwhile,
within a 24-hour span, Mullanix had reported the incident to
two additional sources: UP's "Values Line, "
which is a means by which employees can report problems or
concerns, and Jim Swan, Mullanix's local union chairman.
Filing 28-1 at 8-9; filing 28-8 at 1.
second alleged incident occurred two days later while
Mullanix was working in a shared cubicle with Matthew Besse.
Filing 28-1 at 9. According to Mullanix, Bowman
approached his work space 6 times over a 30 minute period
while Mullanix was on the phone with a different crew
manager. Filing 28-1 at 10. Besse, who was
unoccupied at the time, eventually asked Bowman how he could
help, but Bowman allegedly insisted on speaking with
Mullanix. See filing 28-1 at 9-10. Mullanix says
that immediately upon hanging up the phone, Bowman pulled up
a chair and "scooted over as close as he could to me,
put his leg touching mine, and he said, you know, you and I
are like brothers. I pay union dues just like you do."
Filing 28-1 at 10. Mullanix claims that he walked
away from Bowman and then reported the incident to Foust and
UP's Values Line. Filing 28-1 at 10. Foust sent
Bowman home a second time before the end of his shift.
conversations with UP management followed. For example,
Mullanix spoke with Foust after the second alleged incident,
telling her that he "wasn't interested in having a
relationship with Mr. Bowman" because Bowman was
"talking about things that guys don't normally talk
about with each other." Filing 28-1 at 11.
Mullanix also spoke with his direct supervisor, Mark
Applegate. Filing 28-1 at 12. Applegate, like Foust,
acknowledged the improper nature of Bowman's alleged
comments, but encouraged Mullanix to maintain a professional
relationship with him. See filing 28-1 at
also learned of an internal investigation by UP's Equal
Employment Opportunity (EEO) division, which found that
Bowman had, in fact, violated the company's sexual
harassment policy. Filing 27 at 7; filing 31-4
at 7. As a result, Bowman was required to take an EEO
class and sign an official letter of reprimand. Filing 27
at 8-9; filing 28-9 at 3. He was also
instructed to stay out of the restroom when Mullanix was
using it and to limit his conversations with Mullanix to
work-related topics. Filing 27 at 8.
months passed without incident. However, on or around August
8, Mullanix reported that Bowman had followed him into the
restroom, looked at him, and left. As Mullanix explained:
[Bowman] would have been at his desk. I was at mine. I got
up, walked to the bathroom. He got up behind me, walked to
the bathroom. I'm going to the bathroom. He looks in the
door, walks out, leaves.
31-3 at 20. Then, in January 2015, Mullanix reported a
similar incident in which Bowman allegedly followed him out
to UP's parking garage. As to that incident, Mullanix
claims that Bowman "stalked" him "to the edge
of the parking lot" and then "watched [him] walk to
[his] car and then get in[.]" Filing 31-3 at
20. According to Mullanix, that incident, coupled with
the prior encounters, made him uncomfortable in his job and
encouraged him to "get out of the department where
Bowman was working." Filing 31-3 at 25.
Train Dispatcher Position
September 2014, before the alleged parking lot incident,
Mullanix applied for a position as a train dispatcher.
Filing 31-3 at 25. The following month, UP notified
Mullanix that he was selected for the position, contingent
upon his successful completion of a background investigation
and a pre-placement physical exam. Given those contingencies,
the letter recommended that Mullanix "not giv[e] notice
to [his] current employer or incur any expense in reliance