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.
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs' motion for
class certification pursuant to Fed. R. Civ. P.23, Filing No.
240. Plaintiffs also filed supporting brief and evidence in
support of the motion. Filing Nos. 241-249. Union Pacific
filed a brief in opposition and supporting exhibits, Filing
Nos. 259 and 261; and plaintiffs filed a reply brief, Filing
No. 289. This case is a putative class action suit and
involves claims of employment disability discrimination under
the American with Disabilities Act (ADA), 42 U.S.C. §
12112 et seq. and the Genetic Information Nondiscrimination
Act (GINA), 42 U.S.C. § 2000ff-1(b). Filing No. 20,
Pacific has a company-wide Fitness-for-Duty
(“FFD”) program. SeeFiling No. 20, Ex.
A. In 2014, Union Pacific made changes to this program.
Employees in certain positions under the new policy are
required to disclose specific health conditions, and the
newly implemented policy automatically excludes employees who
disclosed these conditions from employment. These employees
then had to have a fitness for duty evaluation, and according
to plaintiffs, Union Pacific routinely ignores the medical
opinions of outside doctors. The records are sent to Dr. John
Holland in Olympia, Washington, and his support staff. Dr.
Holland and his staff do not do a physical evaluation, but he
and his designees make all decisions regarding who is fit for
are all previous employees of Union Pacific. Many had worked
for years and were allegedly qualified and performing their
jobs with no problems. They were pulled from their jobs under
Union Pacific's new program, evaluated, and then excluded
from their positions at Union Pacific, even though, they
argue, they had no trouble fulfilling the essential functions
of their jobs. Plaintiffs challenge Union Pacific's
policy of removing employees from their jobs based on an
arbitrary and scientifically-unsound “1% Rule”
regarding the risk of “sudden
on these allegations, the plaintiffs assert three class
claims under the ADA on behalf of themselves and putative
class members: (1) disparate treatment-alleging that through
its Fitness-for-Duty program, Union Pacific engaged in a
pattern or practice of discrimination by implementing
qualification standards and other criteria that screen out
individuals with disabilities; (2) disparate impact-alleging
that the Fitness-for-Duty program had an adverse impact on
individuals with disabilities by, for example, screening them
out or tending to screen them out of work; and (3) unlawful
medical inquiry-alleging violations of 42 U.S.C. §
12112(d)(4)(A), which provides that an employer “shall
not require a medical examination and shall not make
inquiries of an employee as to whether such employee is an
individual with a disability or as to the nature or severity
of the disability, unless such examination or inquiry is
shown to be job-related and consistent with business
necessity.” They 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
No. 20, Amended Complaint, ¶ 116.
move to certify the class to include: All individuals who
have been or will be subject to a fitness-for-duty
examination as a result of a reportable health event at any
time from September 18, 2014 until the final resolution of
action “saves the resources of both the courts and the
parties by permitting an issue potentially affecting every
class member to be litigated in an economical
fashion[.]” Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 155 (1982) (quotations and modifications
omitted). The district court may grant certification only
after conducting a “rigorous analysis” confirming
that the requirements are met. Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 351 (2011). However, “Rule 23
grants courts no license to engage in free-ranging merits
inquiries at the certification stage.” Amgen Inc.
v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466
(2013). “Merits questions may be considered to the
extent-but only to the extent-that they are relevant to
determining whether the Rule 23 prerequisites for class
certification are satisfied.” Id.
of the Federal Rules of Civil Procedure governs the
requirements for establishing and maintaining certification
for a class action lawsuit. “In order to obtain class
certification, a plaintiff has the burden of showing that the
class should be certified and that the requirements of Rule
23 are met.” Coleman v. Watt, 40 F.3d 255,
258-59 (8th Cir. 1994).
more members of a class may sue or be sued as representative
parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a).
United States Supreme Court has summarized the four basic
requirements as these: (1) numerosity; (2) commonality; (3)
typicality; and (4) adequacy of representation. Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). The
determination under Rule 23(a) is not perfunctory, “the
court must conduct a ‘rigorous analysis' to ensure
that the prerequisites of Rule 23 are satisfied.”
Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th
Cir. 2006) (quoting Gen. Tel. Co. of the S.W. v.
Falcon, 457 U.S. 147, 161 (1982)). “Frequently
that rigorous analysis will entail some overlap with the
merits of the plaintiff's underlying claim.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351
(2011) (internal citations omitted).
must meet all requirements of Rule 23(a) and fall within one
of the categories of Rule 23(b) to certify their . . . claims
as a class action.” Blades v. Monsanto Co.,
400 F.3d 562, 568-69 (8th Cir. 2005) (citing Amchem, 521 U.S.
at 614). Rule 23(b) allows a class action if (1) there is
otherwise a risk of (a) inconsistent adjudications or (b)
impairment of interests for non-class members; (2) the
defendant's conduct applies generally to the whole class;
or (3) questions of law or fact common to members of the
class predominate and the class action is a superior method
for adjudication. See Fed. R. Civ. P. 23(b).
addition to the Rule 23(a) and (b) requirements, pursuant to
Rule 23(c)(1)(B): “An order that certifies a class
action must define the class and the class claims, issues, or
defenses, and must appoint class counsel under Rule
23(g).” Fed.R.Civ.P. 23(c). The plaintiffs propose a
class action on behalf of four classes pursuant to
Rule 23(a) Requirements
first prerequisite the plaintiffs must meet under Rule 23(a)
is numerosity. Amchem, 521 U.S. at 613. Rule
23(a)(1) requires “the class [be] so numerous that
joinder of all members is impracticable.” See
Fed. R. Civ. P. 23(a)(1). Rule 23(a) “requires only the
impracticality, not the impossibility, of joinder.”
U.S. Fid. & Guar. Co. v. Lord, 585 F.2d 860, 870
(8th Cir. 1978). The plaintiffs need only show “that
joining all members of the class would be difficult.”
Caroline C. By & Through Carter v. Johnson, 174
F.R.D. 452, 462 (D. Neb. 1996) (citations omitted).
“There is no magic number for proving numerosity, but
courts have stated as few as forty class members is
sufficient to show joinder is impracticable.”
Harris v. D. Scott Carruthers & Assoc., 270
F.R.D. 446, 450 (D. Neb. 2010) (citing Hale v. AFNI,
Inc., 264 F.R.D. 402, ...