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McNeil v. Union Pacific Railroad Co.

United States District Court, D. Nebraska

May 21, 2018

TASHA M. MCNEIL, Plaintiff,


          Laurie Smith Camp Chief United States District Judge.

         This 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.


         Unless 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 56.1[1] and Federal Rule of Civil Procedure 56.[2]


         Union Pacific hired McNeil, an African-American female, to work in its Response Management Communications Center (RMCC) as a Critical Call Dispatcher[3] 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.

         Dispatchers 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.

         At the 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. Id.

         Dispatchers 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 134.

         McNeil 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.


         From 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.

         When 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.

         On or 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.

         McNeil 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. Id.


         Union 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.

         On 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).

         In May 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.

         Union 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.

         McNeil 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.[4] 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 the position.”).

         On or 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.

         On 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[5] to let her know McNeil would be released to work in the next couple of weeks. Id.

         After 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.

         On 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).

         On 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.

         Union 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.

         On 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 ID 141.

         On 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. Id.

         On June 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 ID 1000).

         In a 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.

         On 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 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. ΒΆ 78. The Labor Relations Officer was ...

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