United States District Court, D. Nebraska
QUINTON HARRIS, GEOFFREY MILLER, NORMAN MOUNT, SCOTT ZINN, THOMAS TAYLOR, and JOHN BAKER, Plaintiffs,
UNION PACIFIC RAILROAD COMPANY, Defendant.
M. Bazis United States Magistrate Judge.
matter is before the Court on Defendant's Motion for
Protective Order (Filing No. 214) and Motion to
Exclude Report of Dr. Jay Neitz (Filing No. 213).
Plaintiffs' motions will be granted.
a putative class action for violations of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq.,
the Genetic Information Nondiscrimination Act
(“GINA”), 42 U.S.C. § 2000ff et
seq., and state law. (Filing No. 20.)
allege, individually and on behalf of others similarly
situated, that Defendant's Fitness-for-Duty evaluation
procedures unlawfully discriminate against employees on the
basis of disabilities and genetic information. Plaintiffs
assert that under Defendant's Fitness-for-Duty Program,
employees holding particular types of positions are required
to disclose certain specified heath conditions and reportable
heath events, which generally include cardiovascular
conditions, seizures or loss of consciousness, significant
vision or hearing changes, diabetes treated with insulin, and
severe sleep apnea. Plaintiffs allege that they were
“excluded from their positions on the basis of
disabilities that had no effect on their ability to perform
the essential functions of their jobs.” (Filing No.
20.) Plaintiffs seek relief on behalf of the following
Individuals who were removed from service over their
objection, and/or suffered another adverse employment action,
during their employment with Union Pacific for reasons
related to a Fitness-for-Duty evaluation at any time from 300
days before the earliest date that a named Plaintiff filed an
administrative charge of discrimination to the resolution of
(Filing No. 20.)
Motion for Protective Order
to Federal Rule of Civil Procedure 26(b)(1), “[p]arties
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed.R.Civ.P.
26(b)(1). Rule 26 “is to be construed broadly and
encompasses any matter that bears on, or that reasonably
could lead to other matter that could bear on, any issue that
is or may be in the case.” Hodges v. Pfizer,
Inc., Civ. No. 14-4855-ADM/TNL, 2016 WL 1222229, *2 (D.
Minn. March 28, 2016) (internal quotation omitted). Still,
the scope of discovery is not unlimited. Courts must limit
the frequency or extent of discovery if it determines that
“the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive”
or if it is “outside the scope permitted by Rule
26(b)(1).” Fed.R.Civ.P. 26(b). Further, under Rule
26(c), “[t]he court may, for good cause, issue an order
to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed.R.Civ.P.
seeks a protective order precluding Plaintiffs from
conducting discovery on Defendant's Color Vision Field
Test (CVFT”),  and shielding Defendant from
Plaintiffs' Interrogatory Nos. 23 and 24, which relate to
Defendant's CVFT. FRA regulations require that locomotive
engineers and conductors have the “ability to recognize
and distinguish between the colors of railroad
signals.” 49 C.F.R. §240.121(c)(3); 49 C.F.R.
§ 242.117(h)(3). The regulations provide that examinees
who fail one of the FRA-accepted vision tests may be further
evaluated by the railroad's medical examiner and
permitted to take “another approved scientific
screening test or a field test.” 49 C.F.R. § Pt.
240, App. F(4). Defendant uses an FRA-approved testing
method, and then uses its CVFT if an examinee fails the
argues that discovery regarding its CVFT is irrelevant
because the Amended Complaint does not mention the CVFT, or
allege that it is an unlawful method to examine an
employee's vision. Defendant points out that none of the
named Plaintiffs suffer from vision issues or have been
removed from service based on a failed CVFT. Defendant
maintains that the question of whether the CVFT is a valid
method to test an individual's color vision has no
bearing on the claims in this case. Defendant is not seeking
a protective order regarding fitness-for-duty evaluations
related to color vision in general, but only as to discovery
regarding Defendant's CVFT and whether it is an
appropriate mechanism/methodology for use in testing
employees' color vision.
Court agrees that discovery related to the
validity/methodology of Defendant's CVFT is irrelevant to
the claims in this suit. This action involves allegations
that Defendant excluded Plaintiffs from their positions on
the basis of disabilities that had no impact on their ability
to perform the essential functions of their jobs. There is no
allegation that Defendant uses an improper test in connection
with fitness-for-duty evaluations. Therefore, Defendant's
Motion for Protective Order will be granted.
Motion to Exclude ...