Opinion
CAUSE NO. EP-21-CV-287-KC
2022-06-10
Robert Anthony ZARAGOZA, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
Anthony S. Petru, Gavin S. Barney, Hildebrand McLeod & Nelson, Oakland, CA, James H. Kaster, Lucas J. Kaster, Nichols Kaster, PLLP, Minneapolis, MN, for Plaintiff. Jasmine L. Anderson, Constangy, Brooks, Smith & Prophete, LLP, San Francisco, CA, Katie M. Rhoten, Constangy, Brooks, Smith & Prophete, LLP, St. Louis, MO, Lara Cardin de Leon, Constangy, Brooks, Smith & Prophete, LLP, San Antonio, TX, for Defendant.
Anthony S. Petru, Gavin S. Barney, Hildebrand McLeod & Nelson, Oakland, CA, James H. Kaster, Lucas J. Kaster, Nichols Kaster, PLLP, Minneapolis, MN, for Plaintiff.
Jasmine L. Anderson, Constangy, Brooks, Smith & Prophete, LLP, San Francisco, CA, Katie M. Rhoten, Constangy, Brooks, Smith & Prophete, LLP, St. Louis, MO, Lara Cardin de Leon, Constangy, Brooks, Smith & Prophete, LLP, San Antonio, TX, for Defendant.
ORDER
KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE On this day, the Court considered Defendant's Partial Motion to Dismiss ("Motion"). ECF No. 13. For the reasons set forth below, the Motion is GRANTED in part and DENIED in part.
I. BACKGROUND
A. Plaintiff's Employment Dispute
Plaintiff Robert Anthony Zaragoza brings this disability discrimination suit against his employer, Union Pacific Railroad Company ("Defendant" or "Union Pacific"). Plaintiff worked for Union Pacific as a conductor and brakeman until he failed a color-vision test in April 2016, after which he was placed on "permanent work restrictions prohibiting him from working in any position requiring accurate identification of colored railroad wayside signals." Compl. ¶¶ 24, 28–30, ECF No. 1. Today, he "remains a Union Pacific employee on an indefinite medical leave of absence." Compl. ¶ 40.
In order to comply with Federal Railroad Administration regulations, Defendant requires its employees who are responsible for train movement to undergo "fitness-for-duty" testing if they have certain known or suspected medical conditions. Compl. ¶¶ 1–2, 17. This testing includes evaluating employees for color-vision deficiency. Compl. ¶¶ 2–3, 19. Plaintiff alleges that he had previously met Defendant's color-vision standards, and only failed his evaluation in 2016 because Defendant implemented discriminatory new testing procedures which did "not simulate real world conditions." Compl. ¶¶ 20–23, 26–35. He states that, at the time he was placed on leave, he "was capable of performing the essential functions of his job, and he remains able to perform them today." Compl. ¶ 35.
B. Procedural History
Plaintiff is not the only litigant to take issue with Defendant's fitness-for-duty evaluations; his case comes to this Court following the decertification of a class action brought by Union Pacific employees, Harris v. Union Pacific Railroad Co. , 953 F.3d 1030 (8th Cir. 2020). See Compl. ¶¶ 11–13. On February 19, 2016—shortly before Plaintiff was placed on indefinite leave—Quinton Harris and five other named plaintiffs filed an amended complaint in the Western District of Washington, bringing an array of claims on behalf of themselves and two different classes of employees. Compl. ¶ 11; Mot. Ex. C (" Harris Complaint"). As is relevant to this case, the Harris plaintiffs brought a disparate treatment claim (Count I) and disparate impact claim (Count II) under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, on behalf of the named plaintiffs and the "ADA Class." Harris Compl. ¶¶ 136–153. Plaintiff asserts he was a putative member of this class. Compl. ¶¶ 11–12. However, the Harris plaintiffs brought their failure to accommodate claim (Count IV) on behalf of the named plaintiffs only. Harris Compl. ¶¶ 159–163. The case was later transferred to the District of Nebraska. Compl. ¶ 11.
"A court may take judicial notice of the record in prior related proceedings, and draw reasonable inferences therefrom." Wilson v. Huffman (In re Missionary Baptist Found., Inc.) , 712 F.2d 206, 211 (5th Cir. 1983). Thus, the Court may consider filings from the Harris litigation on this motion to dismiss. See Biliouris v. Patman , 751 F. App'x 603, 604 (5th Cir. 2019) (per curiam) ("Taking judicial notice of directly relevant public records is proper on review of a Rule 12(b)(6) motion.").
On August 17, 2018, the Harris plaintiffs sought class certification. See Mot. Ex. D ("Motion for Class Certification"). When they did so, they made a decision with important consequences for the instant Motion: they only "s[ought] certification of Count I, ADA disparate treatment, of the Amended Complaint," and did not seek certification of their disparate impact claim. See Mot. Ex. E ("Memorandum in Support of Class Certification") 22. The district court granted class certification in February 2019. Compl. ¶ 13. Defendant appealed. See Harris , 953 F.3d at 1032. On March 8, 2020, as the appeal was pending, Plaintiff filed a discrimination charge with the Texas Workforce Commission and the Equal Employment Opportunity Commission ("EEOC"). See Mot. Ex. A ("EEOC Charge") 1. The Eighth Circuit decertified the class on March 24, 2020. Compl. ¶ 13; Harris , 953 F.3d at 1039.
Plaintiff filed suit on November 23, 2021, seeking recovery under the ADA for disparate treatment (Count I), disparate impact (Count II), and failure to accommodate (Count III). Compl. ¶¶ 41–64. Defendant now moves to dismiss Counts II and III as time-barred.
II. DISCUSSION
A. Standard
A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court must accept well-pleaded facts as true and view them in a light most favorable to the plaintiff. Calhoun v. Hargrove , 312 F.3d 730, 733 (5th Cir. 2002) ; Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain "detailed" factual allegations, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Colony Ins. Co. v. Peachtree Constr., Ltd. , 647 F.3d 248, 252 (5th Cir. 2011). "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." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
"[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation and internal quotation marks omitted); Colony Ins. Co. , 647 F.3d at 252. Ultimately, the "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Additionally, claims may be dismissed "on a statute of limitations defense where it is evident from the pleadings that the action is time-barred, and the pleadings fail to raise some basis for tolling." Taylor v. Bailey Tool & Mfg. Co. , 744 F.3d 944, 946 (5th Cir. 2014).
B. Disparate Impact
Plaintiff argues that his disparate impact claim is timely because it was tolled until the Eighth Circuit decertified Harris. Before filing suit under the ADA, plaintiffs must first exhaust their administrative remedies by filing a charge of discrimination with the EEOC. Melgar v. T.B. Butler Publ'g Co. , 931 F.3d 375, 378–79 (5th Cir. 2019) (per curiam). If the charge is filed with a state or local agency, it must be filed "within three hundred days after the alleged unlawful employment practice occurred." Id. at 379 (quoting 42 U.S.C. § 2000e-5(e)(1) ). However, this three-hundred-day period is treated like a statute of limitations, see, e.g., McNeill v. Atchison, Topeka & Santa Fe Ry. Co. , 878 F. Supp. 986, 989 (S.D. Tex. 1995), and may be extended if tolling "freeze[s] the clock," see Hall v. Variable Annuity Life Ins. Co. , 727 F.3d 372, 375 (5th Cir. 2013).
Class action tolling traces its origins to American Pipe & Construction Co. v. Utah , 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), in which the Supreme Court held that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class." Id. at 554, 94 S.Ct. 756. This rule arose from the policy consideration that "the class action mechanism would not succeed in its goal of reducing repetitious and unnecessary filings if members of a putative class were required to file individual suits to prevent their claims from expiring if certification of the class is denied." Hall , 727 F.3d at 375 (discussing Am. Pipe , 414 U.S. at 550–52, 94 S.Ct. 756 ). The Court found that the considerations that ordinarily motivate statutes of limitations—namely, ensuring "essential fairness" to defendants and preventing plaintiffs from sleeping on their rights—are "satisfied" when a class action "notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment." Am. Pipe , 414 U.S. at 554–55, 94 S.Ct. 756.
Plaintiff received his permanent work restrictions on May 2, 2016, and filed his EEOC Charge on March 8, 2020. Compl. ¶¶ 15, 30. Thus, his disparate impact claim is time-barred unless it was subject to tolling during the pendency of Harris. Plaintiff argues that Harris tolled that claim for two separate reasons: first, the Harris Complaint contained a disparate impact class claim, and second, the decertified disparate treatment claim "share[d] a common factual and legal nexus" with his disparate impact claim. Pl.’s Resp. Mot. Dismiss ("Response") 3–9, ECF No. 17. The Court considers each argument in turn.
1. The Harris Complaint and claim abandonment
Defendant argues that the tolling of Plaintiff's disparate impact claim ceased when the Harris plaintiffs moved for class certification of their disparate treatment claim only, because at that point, Plaintiff could no longer rely on the Harris litigation to protect his interests regarding his disparate treatment claims. Mot. 13. In response, Plaintiff contends that the Harris Complaint sufficed for tolling all stated class claims while that case was pending because that complaint gave Defendant "notice of the subject matter of prospective litigation." Resp. 5 (citing Am. Pipe , 414 U.S. at 555, 94 S.Ct. 756 ).
Two other courts in this District have held in related cases that the Harris Complaint's inclusion of a disparate impact class claim was insufficient to toll follow-on plaintiffs’ disparate impact claims post-certification. See Carrillo v. Union Pac. R.R. Co. , No. EP-21-CV-26-FM, 2021 WL 3023407, at *5–6 (W.D. Tex. July 16, 2021) ; Smithson v. Union Pac. R.R. Co. , No. SA-21-CV-1225-XR, 2022 WL 1506288, at *3 (W.D. Tex. May 11, 2022). The Court agrees. In Hall , the Fifth Circuit stated that the statute of limitations resumes running when certification is denied because "the putative class members have no reason to assume that their rights are being protected" by the class action. 727 F.3d at 375–76 (quoting Taylor v. United Parcel Serv., Inc. , 554 F.3d 510, 520 (5th Cir. 2008) (cleaned up)). That logic controls here. If named plaintiffs do not seek certification of a class claim, that class claim is abandoned. See, e.g., Hillis v. Equifax Consumer Servs. , 237 F.R.D. 491, 494 n.3 (N.D. Ga. 2006) ; Carter v. L'Oreal USA, Inc. , No. 2:16-cv-508-TFM-B, 2020 WL 1931270, at *19 (S.D. Ala. Apr. 21, 2020). Thus, once it became clear that the Harris plaintiffs had abandoned their class claim for disparate impact, Plaintiff could no longer "rely on the named plaintiffs to press [that] claim[ ]." See Crown, Cork & Seal Co. v. Parker , 462 U.S. 345, 352–53, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). The Harris plaintiffs moved to certify their disparate treatment claim on August 17, 2018, Mot. Class Cert., and the district court certified the class in February 2019, Compl. ¶ 13. Therefore, the Harris Complaint no longer protected Plaintiff's disparate impact claim when he filed his EEOC charge on March 8, 2020. See Compl. ¶ 15.
Although the Carrillo and Smithson courts concluded that tolling ended when the Harris plaintiffs filed their Motion for Class Certification on August 17, 2018, see Carrillo , 2021 WL 3023407, at *6 ; Smithson , 2022 WL 1506288, at *3, some courts have indicated that the operative date is the day that the court rules on certification. For instance, in Choquette v. City of New York , 839 F. Supp. 2d 692 (S.D.N.Y. 2012), the court rejected the argument "that conduct by class counsel indicating an intention to abandon certain plaintiffs’ claims can trigger cessation of American Pipe tolling before those claims have actually been discontinued," and concluded that class action tolling "ends when a plaintiff opts out of the class or a class certification decision of the court definitely excludes that plaintiff." Id. at 699.
Motions can be amended, and the effect of a motion may not be apparent until the court has ruled on it. As such, it would make sense to set the date of the court's order as the date when "putative class members have no reason to assume" that the class action will protect their rights regarding any claims that are not certified. See Hall , 727 F.3d at 376. Such a position would accord with the Supreme Court's statement in American Pipe that a class member does not "have any duty to take note of the suit or to exercise any responsibility with respect to it" before "the existence and limits of the class have been established." 414 U.S. at 552, 94 S.Ct. 756 ; see also Crown, Cork , 462 U.S. at 354, 103 S.Ct. 2392 (Powell, J., concurring) (observing that American Pipe "preserves for class members a range of options pending a decision on class certification " (emphasis added)). But it makes no difference in this case, because neither date would make Plaintiff's EEOC Charge timely.
Plaintiff's attempt to distinguish Hall is unavailing. Plaintiff argues that the Fifth Circuit's logic does not apply to his situation because Hall centered on a "decision to vacate class certification," which "had the effect of entirely resolving the class action," whereas here, "the question of class certification remained an open one until the Eighth Circuit ultimately decertified the Harris class in 2020." Resp. 8. However, even though the question of certification on the disparate treatment claim remained open until the Eighth Circuit addressed the issue, there was no possibility that the court of appeals would suddenly revive the disparate impact class claim, on which the Harris plaintiffs had not even sought certification. The status of the class's disparate impact claim was therefore even more final than a denial of certification or decertification, which ceases tolling despite the fact that the decision "might potentially be reversed on appeal." See Hall , 727 at 375–76. The action was, in Plaintiff's words, "entirely resolv[ed]" with respect to putative class members’ disparate impact claim when the district court certified the disparate treatment claim only.
Even if Hall did not control, one of the Supreme Court's justifications for the American Pipe rule is that the class action "notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment." Am. Pipe , 414 U.S. at 554–55, 94 S.Ct. 756. When potential class claims drop out of the case at the certification stage, it cannot be said that putative class members "may participate in the judgment" with respect to those claims. Thus, the suit no longer gives the defendant notice of "the number and generic identities of the potential plaintiffs" with an interest in such claims.
2. Similarity of claims
Plaintiff argues that, even if claim abandonment generally ceases class action tolling, his disparate impact claim was nevertheless tolled because of its legal and factual similarities with the class's disparate treatment claim. Resp. 3–4. Defendant advocates for a narrower reading of American Pipe , contending that tolling only applies when there is "complete identity" between the class claim and subsequent claim. See Def.’s Reply ("Reply") 2–4, ECF No. 18.
"There are two competing approaches to determining when class-action tolling applies." Brasier v. Union Pac. R.R. Co. , No. CV-21-00065-TUC-JGZ, 2021 WL 6101432, at *3 (D. Ariz. July 20, 2021), R. & R. adopted by 2021 WL 5505087 (D. Ariz. Nov. 24, 2021). Some courts recognize class action tolling when the claims in the follow-on suit "share a common factual basis and legal nexus" with the class claims, whereas others require complete identity of claims between the two suits. Id. (quoting Newby v. Enron Corp. (In re Enron Corp. Sec.) , 465 F. Supp. 2d 687, 718 (S.D. Tex. 2006) ); see also Drennen v. PNC Bank, NA (In re Cmty. Bank of N. Va.) , 622 F.3d 275, 299–300 (3d Cir. 2010) (collecting cases). Two courts in this District have applied the latter, narrower rule to Harris follow-on suits. See Carrillo , 2021 WL 3023407, at *6 ; Smithson , 2022 WL 1506288, at *4.
Courts that merely require commonality reason that American Pipe tolling should apply when the class action gives the defendant adequate notice of potential follow-on suits. See, e.g., Wyser-Pratte Mgmt. Co. v. Telxon Corp. , No. 5:02CV1105, 2003 WL 25861087, at *17 (N.D. Ohio June 4, 2003) ("[C]omplete identity of claims is not necessary for class action tolling to apply. Rather, the Court ... must look to whether the Defendants were on ‘ample notice’ by virtue of the previously-filed class complaint of the claims now asserted against them ...."); see also Crown, Cork , 462 U.S. at 354–55, 103 S.Ct. 2392 (Powell, J., concurring) (stating that American Pipe sets forth a "generous" rule but should be limited to follow-on suits that "concern the same evidence, memories, and witnesses as the subject matter of the original class suit, so that the defendant will not be prejudiced" (internal quotation omitted)). Such courts have observed that demanding complete identity of claims would undermine the basic logic of American Pipe by requiring duplicative filings in a variety of situations. See, e.g., CSU Holdings v. Xerox (In re Indep. Serv. Orgs. Antitrust Litig.) , No. MDL-1021, 1997 WL 161940, at *3, 1997 U.S. Dist. LEXIS 4496, at *19 (D. Kan. Mar. 12, 1997) (discussing Tosti v. City of Los Angeles , 754 F.2d 1485, 1489 (9th Cir. 1985) and Cullen v. Margiotta , 811 F.2d 698, 721 (2d Cir. 1987) ).
By contrast, courts that require the claims to be identical reason that the only way a defendant can have adequate notice of a follow-on suit is when the individual plaintiff brings the exact same claims as the class. See, e.g., Aguilar v. Ocwen Loan Serv'g, LLC , No. 3:17-cv-1165-B, 2018 WL 949225, at *6 (N.D. Tex. Feb. 20, 2018). This position is supported by the Supreme Court's statement that American Pipe "depended heavily on the fact that [the class action] involved exactly the same cause of action subsequently asserted," because a defendant may only be able to "protect itself against the loss of evidence, the disappearance and fading memories of witness, and ... unfair surprise" when "there is complete identity of the causes of action." See Johnson v. Ry. Express Agency, Inc. , 421 U.S. 454, 467 & n.14, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).
Broadly speaking, this is a difficult issue that has divided courts for decades. However, under the particular circumstances of this case, the Court believes that complete identity of claims is not necessary. It is certainly true that, as another court in this District recently observed, "[t]he Supreme Court has ‘consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact’ "—namely, that disparate treatment requires a showing of intent, whereas disparate impact involves the unequal effects of a facially neutral policy. See Smithson , 2022 WL 1506288, at *4 (quoting Raytheon Co. v. Hernandez , 540 U.S. 44, 52, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003) ). However, the Court respectfully notes that it is also well established that evidence of disparate impact can be relevant to a finding of disparate treatment. See Crain v. City of Selma , 952 F.3d 634, 641 (5th Cir. 2020) (citing Int'l Bhd. of Teamsters v. United States , 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) ) ("A discriminatory motive can sometimes be inferred from the mere fact of differences in treatment." (cleaned up)); Hill v. Miss. State Emp. Serv. , 918 F.2d 1233, 1238 (5th Cir. 1990) ("[C]ircumstantial evidence of disparate treatment often includes ... statistical evidence, and a finding of disparate impact requires statistically significant disparities."). Had the Harris class survived, it appears likely that the named plaintiffs would have relied on evidence that Defendant's challenged policies had a disparate impact on disabled employees to support their disparate treatment claim. See Memo. Supp. Class Cert. 15–16 (discussing statistical evidence of the fitness-for-duty program's effect on employees who were evaluated after experiencing a "reportable health event"), 23 (stating that plaintiffs have evidence that Defendant was "aware of the discriminatory intent and outcomes of its policy" (emphasis added)).
As the cited cases demonstrate, this rule has been most often applied to Title VII cases. However, the Court sees no reason why it should not apply in the ADA context. See generally Flowers v. S. Reg'l Physician Servs. Inc. , 247 F.3d 229, 234 (5th Cir. 2001) (discussing the "similar ... language ... purposes and remedial structures" of Title VII and the ADA).
The Court therefore respectfully disagrees with its sister courts that have recently dismissed Harris follow-on plaintiffs’ disparate impact claims as time-barred. The class's disparate treatment claim put Defendant on notice that it would need to preserve evidence that would also pertain to putative class members’ potential disparate impact claims based on the same fitness-for-duty testing policy. As such, the disparate treatment claim satisfied the purpose of the statute of limitations articulated in American Pipe. See 414 U.S. at 554, 94 S.Ct. 756 ("[S]tatutory limitation periods are ‘designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.’ " (quoting Order of R.R. Telegraphers v. Ry. Express Agency , 321 U.S. 342, 348–49, 64 S.Ct. 582, 88 L.Ed. 788 (1944) )). This case presents a situation where the relationship between two distinct causes of action is such that they share "the same or very similar elements, thus providing Defendant[ ] with notice and allowing [it] to rely on the same evidence and witnesses in [its] defense[ ]" against the new claim in the follow-on suit. See Newby , 465 F. Supp. 2d at 718–19. There is no risk that Union Pacific's defense could be prejudiced by "the loss of evidence, the disappearance and fading memories of witness, and ... unfair surprise" regarding Plaintiff's disparate impact claim. See Johnson , 421 U.S. at 467 n.14, 95 S.Ct. 1716. Moreover, the fact that the same policy is at issue in both claims means that the Harris disparate treatment claim notified Defendant "of the number and generic identities of the potential plaintiffs who may participate" in individual disparate impact claims. See Am. Pipe , 414 U.S. at 555, 94 S.Ct. 756. The Court sees no reason why class action tolling should not apply.
This is not to say that every disparate treatment claim will be able to draw on evidence of disparate impact. For instance, if Plaintiff alleged that he had been placed on indefinite leave for pretextual reasons due to a particular supervisor's animus, then evidence about the unequal effects of a broad policy might be irrelevant to his claim. See generally Pacheco v. Mineta , 448 F.3d 783, 792 (5th Cir. 2006) ("[A] disparate-impact investigation could not reasonably have been expected to grow out of [plaintiff's] administrative charge [for disparate treatment] because ... it identified no neutral employment policy ...."). Here, however, the two claims are presented as alternative theories about the exact same "fitness-for-duty" testing procedure. See Compl. ¶¶ 47–49, 53–56. As demonstrated by the Harris plaintiffs’ arguments in support of class certification, see Memo. Supp. Class Cert. 15–16, evidence of that policy's disparate impact could be relevant to proving Union Pacific's intent, see, e.g., Pac. Shores Props., LLC v. City of Newport Beach , 730 F.3d 1142, 1166 (9th Cir. 2013) (observing that statistical evidence of a local ordinance's discriminatory impact could be "helpful" to show discriminatory motive, even if plaintiffs had waived their disparate impact claim). The Court expresses no opinion at this time on whether Plaintiff's allegations make out either claim.
The Court questions if even an individual case with an "identical" follow-on claim will necessarily have the same elements and rely on the same evidence as the class claim. For example, if an individual plaintiff files in a different circuit from where the class claim was filed—as is true in this case—the follow-on court may apply meaningfully different law to that "identical" claim. But if such differences required individual Plaintiffs in different circuits to file their own suits to preserve their claims, the core logic of American Pipe would be gutted. See Hall , 727 F.3d at 375 (referring to class action tolling as a "brightline rule" intended to "reduc[e] repetitious and unnecessary filings").
C. Failure to Accommodate
Plaintiff argues that his failure to accommodate claim is timely because Defendant's failures to accommodate and to engage in the interactive process are ongoing: "Each day that Union Pacific fails to engage Plaintiff—a current employee—in the interactive process is a new, discrete violation of the ADA." Resp. 10. Defendant argues that Plaintiff does not adequately allege that he has attempted to engage in any sort of ongoing interactive process that could bring his claim within the statute of limitations. Reply 9–10.
The Court agrees with Defendant. Plaintiff's argument that Defendant had an ongoing duty to engage in the interactive process is a correct statement of law, but Plaintiff "neglects that the interactive process is a two-way street; it requires that employer and employee work together, in good faith, to ascertain a reasonable accommodation." See Dillard v. City of Austin , 837 F.3d 557, 563 (5th Cir. 2016). After Plaintiff failed the color-vision test, Defendant told him his "restrictions could not be accommodated" and refused to let him retake the test. Compl. ¶¶ 30, 33–34. This refusal to provide any accommodation was a discrete act that accrued on the date that it occurred. See Henson v. Bell Helicopter Textron, Inc. , 128 F. App'x 387, 391 (5th Cir. 2005) (per curiam). Thus, Plaintiff cannot indefinitely extend the statute of limitations by contending that Defendant was required to approach him with a new offer of an accommodation after it denied his first request.
Plaintiff must, at the very least, allege that he attempted to participate in the interactive process such that his EEOC Charge was timely. His Complaint does not do so. He states that, after he was placed on leave, he "contacted Union Pacific on one or more occasions ... to request that he be allowed to return to work in a different craft or position," but does not describe when those occasions took place. As such, the Complaint does not allege that he sought a reasonable accommodation within three-hundred days of filing his EEOC Charge. The claim is time-barred.
Defendant argues that the Court need not even reach the Complaint because Plaintiff's EEOC Charge does not describe any "alleged attempts to contact Union Pacific and return to work after being removed from service, and so Plaintiff "cannot rely on these unexhausted allegations to make his charge timely." Reply 10. But EEOC charges need not be as detailed as a complaint; the charge exhausts "any kind of discrimination like or related to allegations contained in the charge." See Franklin v. City of Slidell , 936 F. Supp. 2d 691, 709–10 (E.D. La. 2013) (quoting Nat'l Ass'n of Gov't Emps. v. City Pub. Serv. Bd. of San Antonio , 40 F.3d 698, 711 (5th Cir. 1994) ). The Court finds that Plaintiff's statements that "Union Pacific refused to accommodate the restrictions that it imposed on me," "would not allow me to return to my job," and "continues to refuse to return me to work" would exhaust his failure to accommodate claim if that filing were timely. See EEOC Charge 1.
Defendant further argues that, even if Plaintiff had so alleged, his failure to accommodate claim would be time-barred because "an employer ‘standing by a prior denial [of accommodation] after an employee requests reconsideration’ does not extend the limitations period." Mot. 16 (quoting Das v. Am. Airlines , No. 4:19-CV-870-A, 2020 WL 364264, at *3 (N.D. Tex. Jan. 21, 2020) ). However, the facts about Plaintiff's attempts to engage in the interactive process are sparse; it is not clear to the Court if Plaintiff's request to work in a different position was indeed duplicative of his first request for an accommodation. See Compl. ¶¶ 30, 33–36. Perhaps the claim would be time-barred no matter what Plaintiff alleged, but the Court cannot apply the statute of limitations to facts that are not given.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion, ECF No. 13, is GRANTED in part and DENIED in part. The Motion is GRANTED as to Plaintiff's failure to accommodate claim and DENIED as to Plaintiff's disparate impact claim. Plaintiff's failure to accommodate claim (Count III) is DISMISSED .