United States District Court, D. Nebraska
TASHA M. MCNEIL, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on the motion for summary
judgment, ECF No. 44, and motion to strike, ECF No. 57, filed
by Defendant Union Pacific Railroad Company, and the motion
to strike, ECF No 62, filed by Plaintiff Tasha McNeil. For
the reasons stated below, Union Pacific's motion to
strike will be granted, in part, McNeil's motion to
strike will be denied as moot, and the motion for summary
judgment will granted.
AND PROCEDURAL BACKGROUND
otherwise indicated, the following facts are those stated in
the parties' briefs, supported by pinpoint citations to
admissible evidence in the record, in compliance with NECivR
and Federal Rule of Civil Procedure 56.
MCNEIL'S DISPATCHER POSITION
Pacific hired McNeil, an African-American female, to work in
its Response Management Communications Center (RMCC) as a
Critical Call Dispatcher in March of 2012. Supp. Brief ¶ 8,
ECF No. 46, Page ID 131. The RMCC was Union Pacific's
24hour emergency and non-emergency call dispatch center,
where dispatchers functioned in a manner similar to 911
operators. Id. ¶¶ 10-11, Page ID 131-32.
coordinated emergency responses for critical railroad
incidents, responded to related phone calls, notified
government agencies about such incidents, and prepared
written reports. Id. ¶ 11, Page ID 132.
beginning of each shift, dispatchers were briefed for about
fifteen minutes about incidents that occurred during the
prior shift. Id. ¶ 16, Page ID 133. They then
relieved the previous shift's dispatchers. Id.
Dispatchers were to be present at all times during their
shift to take incoming calls and could not leave their desks
after their shifts until relieved by the next dispatcher.
Id. ¶ 18. Generally, only one on-duty
dispatcher was allowed out of the RMCC at a time.
were scheduled for 8.25 hour shifts and were subject to
mandatory overtime based on staffing needs. Id.
¶ 19. They generally were required to manage inbound
calls from start to end, which could require them to remain
past the end of a shift. Id. ¶ 21. They all had
five consecutive workdays per week followed by two
consecutive rest days. Id. ¶ 15. Each day of a
dispatcher's work week was color-coded to determine the
order of overtime assignments. On a “red day, ” a
dispatcher could be called to begin a shift up to four hours
before the standard start time and/or to remain at work up to
four hours beyond the typical end time. Id. ¶
21, Page ID 133. The parties dispute whether
dispatchers were generally scheduled to work one or two
“red days” per week. Id. On a
“blue day, ” a dispatcher would be called to work
the extended shift only if the “red day”
dispatcher was unavailable. Id. ¶ 25, Page ID
was assigned to the daytime shift, which generally began at
6:15 a.m. and ended at 2:30 p.m. Id. ¶ 20. Page
ID 133. Good attendance and the ability to work overtime were
important for the daytime shift, which tended to be the most
demanding, with the greatest number of emergency calls, and
typically required the most overtime. Id. ¶ 13,
Page ID 132. On a “red day, ” McNeil could be
called to work as early as 2:00 a.m. and stay as late as 6:00
p.m. Id. ¶¶ 23-24, Page ID 134.
MCNEIL'S PREGNANCY AND RETURN TO WORK
December 26, 2012 to January 13, 2013, McNeil took short-term
disability leave due to complications related to pregnancy.
Id. ¶ 26, Page ID 134. She then took maternity
leave under the Family and Medical Leave Act (FMLA), 29
U.S.C. § 2601 et seq., and returned to work on
June 17, 2013. Id.
McNeil returned to work she asked RMCC Director Brian Jarrett
for training before she was placed back on the switchboard,
but Jarrett denied her request. Opp. Brief ¶ 44, ECF No.
52, Page ID 466. Shortly after returning to work, McNeil made
an unspecified error, which she attributed to Jarrett's
refusal to retrain her, and the error resulted in
disciplinary action. Id. McNeil claims that her
white coworker Brittne Queck received training upon returning
from maternity leave. Id. ¶ 45. Union Pacific
and Queck deny that such training occurred. Rep. Brief ¶
187, ECF No. 59, Page ID 1868; Queck Decl. ¶ 5, ECF No.
58-2, Page ID 1814.
about September 18, 2013, RMCC Team Leader Kyla Jo Asher and
Senior Manager Damien Thompson met with McNeil. Supp. Brief
¶ 27, ECF No. 46, Page ID 134. Union Pacific says this
meeting was to “discuss concerns regarding her customer
service and professionalism, ” id., while
McNeil says the meeting was to discuss the error that
occurred as a result of Union Pacific's refusal to
provide training, Opp. Brief ¶ 206, ECF No. 52, Page ID
500. In that meeting, the length of McNeil's breaks to
pump breastmilk was discussed. Supp. Brief ¶ 27, ECF No.
46, Page ID 134. McNeil contends Asher and Thomson said she
took breaks that were too long, although she pumped only
during her lunch breaks. Opp. Brief ¶ 50, ECF No. 52,
Page ID 468. McNeil claims the stress from this meeting
affected her lactation, forcing her to supplement her
child's diet with formula. Id. ¶ 52. She
also alleges Queck was allowed to pump breastmilk at leisure,
without complaint from Union Pacific. Id. ¶ 53,
Page ID 468. Another RMCC dispatcher, Penni Anderson, stated
that she “observed that Jarrett allowed [Queck] to
breast pump at her leisure without any complaints.”
Anderson Decl. ¶ 16, ECF No. 52-2, Page ID 574. Union
Pacific denies this, Rep. Brief ¶ 59, ECF No. 59, Page
ID 1833, and Queck herself stated she never nursed her child,
and so she never pumped breastmilk at work. Queck Dep. ¶
6, ECF No. 59-2, Page ID 1903.
applied for a FMLA specialist position at Union Pacific in
September 2013, but alleges Jarrett would not allow her to
leave her shift to be interviewed. Supp. Brief ¶ 33, ECF
No. 46, Page ID 135. She was not offered the position.
MCNEIL'S DISABILITY LEAVE
Pacific granted McNeil FMLA leave to care for her ailing
mother, from January 17, 2014, to April 11, 2014.
Id. ¶ 38, Page ID 136. While on leave, McNeil
was diagnosed with depression and anxiety related to caring
for her mother. Id. ¶ 40. On February 11, 2014,
while on FMLA leave, McNeil applied for and received
short-term disability benefits. Id. ¶ 41.
March 5, 2014, Union Pacific sent McNeil a letter, advising
her that before she returned to work she must provide Union
Pacific with medical records from her healthcare providers,
demonstrating her ability to work. Id. ¶ 42.
The letter also said the requested medical documentation was
“separate and in addition to any information already
provided to MetLife to approve disability benefits.”
Id. (quoting ECF No. 46-8, Page ID 207).
2014, McNeil and her physicians determined that she should be
able to return to work on June 6, 2014, on a
temporarily-reduced schedule of eight-hour shifts, four days
per week, through August 1, 2014. Id. ¶ 43,
Page ID 137. On May 30, 2014, MetLife informed Union Pacific
that McNeil could return to work four days a week, with an
8.5-hour shift. Id. ¶ 44, Page ID 137. On June
2, 2014, Jarrett stated in an intra-office email that he
could accommodate McNeil's medical restrictions by
removing her from emergency calls 90 minutes before the end
of her shift. ECF No. 46-18, Page ID 245.
Pacific alleges that it could accommodate this restriction
only because it was less than eight weeks in duration, which
Union Pacific considered temporary. Opp. Brief ¶ 44, ECF
No. 46, Page ID 137. McNeil disputes that Union Pacific had
any policy classifying medical restrictions of less than
eight weeks as temporary, and restrictions exceeding eight
weeks as permanent. See Opp. Brief ¶ 208, ECF
No. 52, Page ID 500-01.
did not return to work on June 6. She transitioned to
long-term disability leave (LTD) on June 17, 2014.
Id. ¶ 45. Once McNeil took LTD, Union Pacific
sought to backfill her position, consistent with its
policy. Supp. Brief ¶ 47 ECF No. 46, Page ID
137; ECF No. 52-47, Page ID 1031 (“Once an employee
goes on LTD . . . Union Pacific will generally seek to fill
about July 28, 2014, Jarrett informed a group of critical
call dispatchers that McNeil was “no longer with Union
Pacific” and it was looking for candidates to fill her
position. Id. ¶ 48; Opp. Brief ¶ 74, ECF
No. 52, Page ID 472. Dispatcher Juanita Love called McNeil
and told her Jarrett announced that she was no longer with
the company. Supp. Brief ¶ 48 ECF No. 46, Page ID 137.
Shortly after, McNeil spoke with Jarrett over the phone and
recorded the conversation. Jarrett said he meant that he did
not expect McNeil back “anytime soon.” ECF No.
52-9, Page ID 777.
August 27, 2014, Union Pacific Employee Benefits Director
Dawn Weindel called McNeil because Weindel was told by
MetLife that McNeil planned to return to work soon.
Id. ¶ 50. Weindel informed McNeil that anyone
who had been on LTD for a long period had to go through a
fitness-for-duty (FFD) exam with the health and medical
group. Id. She also told McNeil that when an
employee went on LTD, the department could fill that
employee's job. Weindel provided McNeil with contact
information for FFD Nurse Jennifer Roberts and told McNeil to
call HR Manager Liz Winkler to let her know McNeil would be
released to work in the next couple of weeks. Id.
her conversation with Weindel, McNeil called Winkler to
inform her that McNeil expected to be released to return to
work within a few weeks. Id. ¶ 51. McNeil
recorded the conversation. McNeil said she wanted to make
sure her “job was there.” McNeil Dep. 172:5, ECF
No. 46-20, Page ID 321. Winkler told McNeil “[y]ou know
how much turnover there is in RMCC, so there is pretty much,
you know, a job, ” id. at 172:7- 9, and that
when an employee returned from LTD “if your position is
available when you come back, you can come back to that one,
or if it wasn't . . . the company, we'd find you a
place, ” id. at 179:6-9, Page ID 322. Winkler
also stated, “we do have vacancies in the RMCC right
now, ” id. at 173:9-10, but Union Pacific
couldn't promise McNeil would be able to return to the
daytime shift, id. at 173:14-23. Winkler told McNeil
she would need to pass an FFD exam before returning to work.
Supp. Brief ¶ 51, ECF No. 46, Page ID 138. On that call,
McNeil did not inform Winkler that McNeil's doctors
imposed any work restrictions, or that she would not be able
to work overtime. Id. ¶ 52; McNeil Dep.
176:2-5, ECF No. 46-20, Page ID 322.
September 22, 2014, McNeil's medical provider, CHI Health
Benson Clinic, sent Union Pacific a 17-page fax that included
a letter from Dr. Sanjeev Sharma, dated August 29, 2014,
which stated “[i]t is my professional medical opinion
that Tasha McNeil may return to work on 9/2/14. Please allow
her only morning shifts and no overtime.” Supp. Brief
¶ 55, ECF No. 46, Page ID 139 (quoting ECF No. 53-7).
September 26, 2014, Roberts emailed McNeil to inform her that
the medical department was confused as to whether she was
released with or without restrictions. Id. ¶
57. McNeil told Roberts she could only work daytime hours and
no overtime until approximately January, and her restrictions
were included in the medical packet sent to Union Pacific.
Id. Union Pacific contends it did not receive any
further medical documents regarding McNeil's restrictions
from Benson Clinic or her other care providers between
September 22, 2014, and McNeil's termination on October
28, 2015. Id. ¶ 60, Page ID 140. McNeil
contends that she spoke with Benson Clinic employee Tanika
Broadway, who stated she “may very well have faxed
McNeil's medical records to Union Pacific on [August 13,
2015].” Opp. Brief ¶ 129, ECF No. 52, Page ID 484.
Pacific says it did not accommodate McNeil's proposed
restrictions because it “could not accommodate
permanent overtime restrictions” and the RMCC did not
have any daytime shift positions available at that time.
Supp. Brief ¶ 61, ECF No. 46, Page ID 140. McNeil
alleges there were many open positions in the RMCC for which
she was qualified at the time Union Pacific was notified that
she was ready to return to work. Opp. Brief ¶¶
136-43, ECF No. 52, Page ID 485-86. Although the RMCC work
schedule appeared to show three vacancies in September 2014,
Union Pacific states that employees were hired up to two
months in advance for those positions to ensure adequate
training time, and effectively there were no open positions
for which McNeil was qualified. Supp. Brief ¶ 63, ECF
No. 46, Page ID 140.
October 13, 2014, Union Pacific informed McNeil it could not
accommodate her work restrictions and there were no open
positions in the RMCC. Id. ¶ 64, Page ID
140-41. A short time later, Winkler left McNeil a voicemail
notifying her that there were no openings in the RMCC and
that she could apply for other Union Pacific positions when
she was able to return to work. Id. ¶ 65, Page
October 20, 2014, McNeil received a letter from Terry Owens
of Union Pacific's return-to-work program, stating that
McNeil's “supervising department ha[d] been unable
to identify a reasonable accommodation that will permit you
to safely return to work in your assigned position.”
Id. ¶ 66 (quoting ECF No. 52-37, Page ID 996).
The letter referred her to Union Pacific's Disability
Management Department for assistance and included a number to
call for assistance in finding a job at Union Pacific.
24, 2015, McNeil received a letter from Employee Benefits
Director Kari Peacock indicating that McNeil's LTD
benefits would end on June 26, 2015. Id. ¶ 70,
Page ID 142. The letter stated, “[i]f you are seeking
to return to work with Union Pacific due to the exhaustion of
LTD benefits, please notify me immediately” and,
“[i]n order to return to work with Union Pacific, you
must have a release to return to work from your treating
provider and must submit information . . . for a fitness for
duty review.” Id. (quoting ECF No. 52-38, Page
subsequent conversation, Peacock informed McNeil that a list
of open positions at the RMCC would not be available until
McNeil received clearance to return to work from her doctor.
Id. ¶ 71. At Peacock's direction, McNeil
called FFD Nurse Pam Pachaud on July 8, 2015. Id.
¶ 72. Pachaud returned her call on July 29, 2015, and
told McNeil that she would not be able to return to work
until she was released from her restrictions. Id.
The parties dispute whether the Benson Clinic faxed new
medical records after July 29, 2015.
October 28, 2015, Jarrett sent a letter to McNeil explaining
that Union Pacific terminated her employment due to the
expiration of her LTD and her failure to use Union
Pacific's return-to-work program. Id. ¶ 75,
Page ID 143. Union Pacific alleges that after July 29, 2015,
McNeil did not contact anyone at Union Pacific until after
the letter of termination was issued. Id. ¶ 74,
Page ID 142.
MCNEIL'S EEOC CHARGE AND APPLICATIONS FOR OTHER
filed a Charge of Discrimination with the Nebraska Equal
Opportunity Commission (NEOC) on March 11, 2015. Id.
¶ 77. She amended her charges in January of 2016, and
filed them with the United States Equal Opportunity
Employment Opportunity Commission (EEOC). On May 7, 2015, she
applied for a Labor Relations Officer position with Union
Pacific. Id. ¶ 78. The Labor Relations Officer