Opinion
3:21-cv-00205-SB
06-04-2021
NICHOLAS DEFRIES, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
The Court accepts the complaint's well-pleaded factual allegations as true and construes all inferences in favor of DeFries. See Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017).
I. FACTUAL ALLEGATIONS
DeFries worked as a conductor and brakeman for Union Pacific from 2004 to March 2018. (First Am. Compl. (“FAC”) ¶ 24.) DeFries's job as a conductor required him to read and interpret multicolored railroad traffic signal lights on signal masts. (Id.)
Federal Railroad Administration (“FRA”) regulations require that all locomotive engineers and conductors undergo periodic vision testing. (Id. ¶ 20.) The FRA regulations require that a conductor can recognize and distinguish between the colors of railroad signals, as demonstrated through one of twelve forms of color-vision examination. (Id.) Under Union Pacific's own medical evaluation program, called the Fitness-for-Duty program, Union Pacific employees are required to undergo color vision testing when an employee either reports or is suspected of a color-vision deficiency. (Id. ¶ 19.) Union Pacific first utilized the 14-Plate Ishihara test (“Ishihara test”) to test for color-vision deficiency. (Id. ¶ 21.) If an employee fails the Ishihara test, the employee undergoes a different Color Vision Field Test (“CVFT”) called the Light Cannon test. (Id.)
In March 2015, DeFries underwent the FRA's conductor certification process and failed the Ishihara test. (Id. ¶ 27. ) A year later, DeFries passed a different CVFT, which required him to read and relay a series of signals from a railroad signal mast. (Id.) In March 2018, as part of the conductor recertification process, DeFries again failed the Ishihara test. (Id. ¶ 28.) DeFries's negative test result triggered a Fitness-for-Duty evaluation and Union Pacific removed DeFries2 from his work as a conductor. (Id.) In May 2018, DeFries failed the Light Cannon test. (Id. ¶ 29.) Due to rain and windy conditions during the test, DeFries requested a retest. (Id. ¶ 30.)
Approximately one week later, DeFries contacted Union Pacific and asked whether there were any other positions available if he failed the Light Cannon test on his second attempt. (Id. ¶31.) Shortly thereafter, DeFries attempted the Light Cannon test for the second time and Union Pacific determined that he failed. (Id.) On August 7, 2018, Union Pacific issued DeFries permanent work restrictions prohibiting him from working in any position requiring accurate identification of colored railroad wayside signals, which included his position as a conductor. (Id. ¶ 33.) Union Pacific claimed that it could not accommodate these restrictions. (Id.)
After Union Pacific issued DeFries's work restrictions, DeFries contacted Union Pacific and requested that Union Pacific allow him to return to work in a different position. (Id. ¶ 34.) According to DeFries, Union Pacific “has persisted in its refusal to allow [him] to return to his job as a conductor/brakeman” despite having open positions, and that he “could be returned to work despite the permanent work restrictions[.]” (Id. ¶¶ 35-36.)
II. RELATED CLASS ACTION
Before DeFries filed this action, he was a putative class member of a class action lawsuit against Union Pacific in the District of Nebraska. (Id. ¶¶ 4-5; see Quinton Harris et al. v. Union Pac. R.R. Co., Case No. 8:16-cv-381 (D. Neb.).) The class action was filed in February 2016, and asserted ADA claims of (1) disparate treatment, (2) disparate impact, and (3) unlawful medical inquiry, based on Union Pacific's Fitness-for-Duty program. (Seeid. ¶ 4; Def.'s Mot. Ex. A (“Harris Compl.”).) The class members were individuals who were subjected to a Fitness-for-Duty examination because of a reportable health event. (Harris Compl. ¶ 116.) Importantly, the Harris Complaint asserted a failure to accommodate claim on behalf of the named plaintiffs, but not on behalf of the class. (Harris Compl. ¶¶ 159-63.)
The Court grants Union Pacific's request to take judicial notice of the Harris Complaint. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“A court may . . . consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.”); Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1998) (“[I]t is proper for the district court to take judicial notice of matters of public record outside the pleadings and consider them for purposes of the motion to dismiss.”) (simplified).
On February 5, 2019, the Harris court certified the class, but on March 24, 2020, the Eighth Circuit Court of Appeals reversed the certification decision. (FAC ¶¶ 12-13; see Harris v. Union Pac. R.R. Co., No. 8:16-cv-381, 329 F.R.D. 616, 620 (D. Neb. Feb. 5, 2019), rev'd 953 F.3d 1030 (8th Cir. 2020).)
III. EEOC CHARGE
Shortly after the Eighth Circuit's decision in Harris, the parties in Harris entered into a tolling agreement, extending the time for putative class members to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) by an additional sixty days. (FAC ¶ 14.) On April 24, 2020, DeFries filed an EEOC charge, alleging disability discrimination. (Id. ¶ 15.) DeFries filed his complaint in this action on February 8, 2021. (ECF No. 1.)
An ADA plaintiff must file an EEOC charge of discrimination within 300 days of the last discrete instance of their employer's alleged ADA violations. See 42 U.S.C. § 2000e-5(e)(1); see also Logan v. W. Coast Benson Hotel, 981 F.Supp. 1301, 1310 n.5 (D. Or. 1997) (“[P]laintiffs had 300 days from the date of the alleged offenses to file with the EEOC pursuant to 42 U.S.C. § 2000e-5(e)(1).”).
DISCUSSION
I. STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “‘The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.'” Mashiri, 845 F.3d at 988 (quoting Twombly, 550 U.S. at 556).
II. ANALYSIS
Union Pacific moves to dismiss DeFries's failure to accommodate claim, arguing that the claim is time-barred because DeFries failed to exhaust his administrative remedies by timely filing a charge with the EEOC. (Def.'s Mot. at 5; see also 42 U.S.C. § 2000e-5(e)(1) (requiring that an EEOC charge “shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred”).) DeFries does not dispute that, absent tolling, his failure to accommodate claim would be time-barred. Instead, DeFries asserts that his claim is tolled under the principles outlined by the Supreme Court in American Pipe &Construction Co. v. Utah, 414 U.S. 538 (1974).
In American Pipe, the Supreme Court held that if the statute of limitations expires during the pendency of a class action, “the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Id. at 553-54. The Court later extended its holding in American Pipe to include “all asserted members of the class, not just as to interveners.” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350 (1983) (quotation marks and citation omitted); see also China Agritech, Inc. v. Resh, 138 S.Ct. 1800, 1804 (2018) (noting that the “timely filing of a class action” may toll the statute of limitations “for all persons encompassed by the class complaint”). “Tolling is fair in such a case because when the complaint is filed defendants have notice of the ‘substantive claims being brought against them.'” Williams v. Boeing Co., 517 F.3d 1120, 1136 (9th Cir. 2008) (quoting Crown, 462 U.S. at 352-53). “However, the tolling rule does not ‘leave[ ] a plaintiff free to raise different or peripheral claims following denial of class status.'” Id. at 1136 (quoting Crown, 462 U.S. at 354 (Powell, J. concurring)).
The parties dispute whether tolling under American Pipe applies only to later-filed individual claims that are identical to those asserted on behalf of the class in the earlier-filed class action. Union Pacific argues that American Pipe tolling does not apply to DeFries's failure to accommodate claim because the Harris plaintiffs did not plead a failure to accommodate claim on behalf of the class. (Def.'s Mot. at 8.) DeFries responds that Union Pacific relies on an “overly narrow interpretation of class-action tolling, ” and that the proper analysis is whether the claims in the class action share a common factual and legal nexus with the claims in the subsequent individual action. (Pl.'s Resp. at 1.)
DeFries is correct that some courts outside the Ninth Circuit have applied American Pipe tolling when subsequent individual claims merely share a common factual and legal nexus with those brought in the previous class action. See, e.g., Williams-Hopkins v. Allied Interstate, No. 20-226 (SDW) (LDW), 2020 WL 2731101, at *4 (D.N.J. May 26, 2020) (“Where a subsequent, but different claim shares a common factual and legal nexus with those brought in the prior class action, American Pipe tolling may apply.”); Jones v. BMW of N. Am., No. 1:20-cv-0057, 2020 WL 5752808, at *5 (M.D. N.C. Sept. 25, 2020) (noting that American Pipe tolling does not require that “subsequent individual claims must be exactly the same or that both cases cite the exact same statutory provisions for class action tolling to apply”); In re Cmty. Bank of N. Va., 622 F.3d 275, 300 (3d. Cir. 2010), as amended (Oct. 20, 2010) (noting that other circuits have recognized that where a nexus exists, “there is no persuasive reason for refusing to apply class action tolling, as the defendant will already have received adequate notice of the substantive nature of the claims against it and likely would rely on the same evidence and witnesses in mounting a defense”).
The Third Circuit recognized that other circuits are split on this rule, but declined to either adopt or reject it. See In re Cmty. Bank of N. Va., 622 F.3d at 300.
However, the Ninth Circuit has declined to extend American Pipe tolling to subsequent individual claims that assert a different cause of action than the class claims. As Union Pacific correctly points out, the cases from this circuit on which DeFries relies did not involve a different cause of action than the class claims, but instead alleged distinct factual circumstances in support of the same cause of action. For example, in Tosti v. City of Los Angeles, 754 F.2d 1485, 1489 (9th Cir. 1985), the Ninth Circuit applied American Pipe tolling where the plaintiff's individual action and the prior class action both asserted 42 U.S.C. § 1983 claims for sex-based employment discrimination. Although the Court held that individual claims in the subsequent action need not be “identical in every respect to the class suit for the statute to be tolled, ” the plaintiff's suit and the class action pleaded the same cause of action. Tosti, 754 F.2d at 1489.
Similarly, in Renati v. Walmart Stores, No. 19-cv-02525-CRB, 2019 WL 5536206, at *13-14 (N.D. Cal. Oct. 25, 2019), the district court tolled the plaintiff's claims where the individual action and earlier-filed class action both asserted identical claims of disparate treatment and disparate impact under Title VII. Importantly, the Renati court acknowledged that “[c]ourts are most likely to find that claims are ‘different or peripheral' from an earlier class action when they rely on different causes of action, ” and that “[c]ourts are more likely to find that American Pipe tolling applies when later claims assert the same legal theory as the class complaint, even if they are based on somewhat different factual allegations.” Id. (quoting Crown, 462 U.S. at 354 (Powell, J. concurring)) (emphasis added); see also Biotechnology Value Fund, L.P. v. Celera Corp., 12 F.Supp.3d 1194, 1200 (N.D. Cal. 2013) (applying American Pipe tolling where the plaintiff's subsequent cause of action was identical to one asserted in the class complaint, even though the claims were based on different facts).
DeFries also cites to Shirey v. Portfolio Recovery Assocs., LLC, No. 2:19-cv-00114-SAB, 2019 WL 3842391 (E.D. Wash. Aug. 14, 2020), which relies on Tosti in tolling the plaintiff's subsequent claims where the plaintiff was not a putative class member in the earlier-filed action due to the narrowly proposed definition of the class. However, it is unclear from the opinion whether the subsequent and class claims were identical, and therefore Shirey may be similarly distinguishable.
Since Tosti, the Ninth Circuit has interpreted American Pipe and its progeny as tolling only the same causes of action alleged in the prior class action. See Williams, 517 F.3d at 1136 (declining to toll the plaintiff's individual compensation discrimination claim because “neither the Original nor the First Amended Complaints [in the earlier class action] stated a claim for compensation discrimination” and therefore “the statute of limitation was not tolled for that claim as it would have been for the promotion discrimination, hostile work environment, and retaliation claims properly raised” (citing Crown, 462 U.S. at 350)); Card v. Duker, 122 Fed.Appx. 347, 349 (9th Cir. 2005) (recognizing that “[t]he Supreme Court has [] not extended tolling due to class litigation beyond American Pipe's narrow allowance for identical causes of action brought where the class was decertified”).
District courts in the Ninth Circuit addressing the arguments DeFries raises here have also declined to toll individual claims asserting a different cause of action than the prior class claims. See, e.g., In Re Ford Motor Co. DPS6 Powershift Transmission Prods. Liab. Litig., Nos. ML-18-02814 AB (PVCx) & CV-18-01893 AB (FFMx), 2021 WL 1220948, at *3 (C.D. Cal. Mar. 29, 2021) (“Plaintiff's only remaining claims are a claim for common law fraud and a Song-Beverly Act claim for breach of the express warranty. [The previous class action] pled no fraud claim whatsoever, so it could not toll the limitations period for Plaintiff's common law fraud claim.”); Natan v. Citimortgage, Inc., No. CV145779DSFPLAX, 2016 WL 10837861, at *1 (C.D. Cal. Sept. 21, 2016), aff'd, 714 Fed.Appx. 710 (9th Cir. 2017) (noting that “[w]hile there is some flexibility in the application of this rule in situations where the same basic claim or claims are broadened or altered slightly . . . neither American Pipe nor Jolly allows tolling for completely different claims with elements different from those pleaded in the class action”); Inre Cathode Ray Tube (CRT) Antitrust Litig., 27 F.Supp.3d 1015, 1021 (N.D. Cal. Mar. 13, 2014) (declining to toll later-filed claims that were not asserted in the earlier-filed class action); In re TFT-LCD (Flat Panel) Antitrust Litig., Nos. M 07-1827 SI, C 12-4114 SI, 2013 WL 254873, at *2 (N.D. Cal. Jan. 23, 2013) (same).
Courts outside of the Ninth Circuit have held similarly. See, e.g., Zarecor v. Morgan Keegan & Co., 801 F.3d 882, 888 (8th Cir. 2015) (“American Pipe tolling should be limited to claims filed in a later action that are the same as those pleaded in the putative class action.”); In re World Com Sec. Litig., 496 F.3d 245, 255 (2d Cir. 2007) (“It would not undermine the purposes of statutes of limitations to give the benefit of tolling to all those who are asserted to be members of the class for as long as the class action purports to assert their claims.”); Raie v.Cheminova, Inc., 336 F.3d 1278, 1283 (11th Cir. 2003) (per curiam) (declining to toll the plaintiff's wrongful death claim under American Pipe because no wrongful death claim was pleaded in the class action suit); but see Cullen v. Margiotta , 811 F.2d 698, 720 (2d Cir. 1987) (extending American Pipe tolling to plaintiff's individual federal causes of action where the class action asserted only state law claims).
This case presents a slightly closer question than those cases in which an individual pleads a completely different cause of action than the class claim (such as an individual common law fraud claim following a class statutory claim), because DeFries's failure to accommodate claim here is also an ADA discrimination claim. (Compare Harris Compl. ¶¶136-141, ¶¶ 145147, alleging ADA disparate treatment and disparate impact claims pursuant to 42 U.S.C. §§ 12112(b)(6) and (b)(3), with FAC ¶¶ 56-63, alleging a failure to accommodate claim pursuant to 42 U.S.C. § 12112(b)(5)(A).) However, in Williams, the Ninth Circuit addressed an analogous situation when it declined to toll the statute of limitations for the plaintiff's compensation discrimination claim under 42 U.S.C. § 1981, even though the prior class action alleged discrimination claims under the same statute. SeeWilliams, 517 F.3d at 1136 (“[N]either the Original nor the First Amended Complaints [in the earlier class action] stated a claim for compensation discrimination. Therefore the statute of limitation was not tolled for that claim as it would have been for the promotion discrimination, hostile work environment, and retaliation claims properly raised.” (citing Crown, 462 U.S. at 350)). Here, although DeFries pleads a failure to accommodate claim under the ADA, the elements of and defenses to that claim are not identical to the elements of and defenses to the ADA disparate treatment and disparate impact claims alleged in the class action.
DeFries argues that the rationale for the American Pipe tolling rule is that a class action provides a defendant with notice of the plaintiff's substantive claims, and here Union Pacific was on notice that it would be required to defend against individual failure to accommodate claims. (Pl.'s Resp. at 3-10.) The Court is not persuaded. Although Crown suggests that courts should allow tolling when a lawsuit asserts claims that “concern the same evidence, memories, and witnesses as the subject matter of the original lawsuit, ” the Supreme Court also cautioned that courts must “make certain . . . that American Pipe is not abused by the assertion of claims that differ from those raised in the original class suit.” Crown, 426 U.S. at 324. Indeed, the Supreme Court has expressly stated that “the tolling effect given to the timely prior filings in American Pipe . . . depended heavily on the fact that those filings involved exactly the same cause of action subsequently asserted.” Johnson v. Ry. Express Agency, 421 U.S. 454, 467 (1975). The Supreme Court acknowledged that the prior class action “necessarily operated to avoid the evil against which the statute of limitations was designed to protect.” Id. Nevertheless, the Supreme Court concluded that “[o]nly where there is complete identity of the causes of action will the protections . . . necessarily exist.” Id. at n.14; see alsoInt'l Union of Elec., Radio and Mach.Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 238 (1976) (declining to toll a later-filed individual claim that was not identical to the earlier-filed class claim, citing Johnson). Thus, the notice a class action affords to a defendant justifies the tolling rule, but notice does not compel tolling under American Pipe.
The weight of authority supports the conclusion that to benefit from the American Pipe tolling rule, an individual must plead the same cause of action that was pleaded in the putative class action. SeeKrehbiel v. Union Pac. R.R. Co., No. 2:19-CV-02002-JAR-JPO, 2019 WL 3387049, at *1 (D. Kan. July 26, 2019) (applying American Pipe to a similar individual action arising out of the Harris class action and declining to toll the Harris class member's failure to accommodate claim because “without a class action claim, there is no American Pipe tolling available to plaintiff”); see also Goeldner v. Union Pac. R.R. Co., No. 4:19-cv-00692-NKL, 2020 WL 1148584, at *1 n.1 (W.D. Mo. Mar. 9, 2020) (noting that the plaintiff, a Harris class member, withdrew his failure to accommodate claim in response to the defendant's argument that he did not exhaust his administrative remedies and therefore the claim was time-barred); Owen v. Union Pac. R.R. Co., No. 8:19CV462, 2020 WL 6684504, at *3 (D. Neb. Nov. 12, 2020) (noting that the plaintiff, also a Harris class member, conceded that his failure to accommodate claim was untimely). Absent further guidance from the Ninth Circuit extending class action tolling beyond American Pipe's narrow allowance for identical causes of action, the Court declines to toll the statute of limitations for DeFries's failure to accommodate claim.
Accordingly, DeFries's failure to accommodate claim is time-barred and the district judge should grant Union Pacific's motion to dismiss.
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT Union Pacific's motion to dismiss DeFries's failure to accommodate claim (ECF No. 13).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.