Allan Sanders v. Union Pacific Railroad Co.

United States Court of Appeals
For the Eighth Circuit
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No. 22-2863
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Allan Sanders,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Union Pacific Railroad Co.,
lllllllllllllllllllllDefendant - Appellant.
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Equal Employment Opportunity Commission,
lllllllllllllllllllllAmicus on Behalf of Appellee(s).
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 16, 2023
Filed: July 25, 2024
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Before COLLOTON,1 BENTON, and SHEPHERD, Circuit Judges.
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1Judge Colloton became chief judge of the circuit on March 11, 2024. See 28
U.S.C. § 45(a)(1).

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COLLOTON, Circuit Judge.
Allan Sanders sued his former employer, Union Pacific Railroad Company,
alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101
et seq. Sanders alleged that Union Pacific discriminated against him in two ways:
first by imposing work limitations because of perceptions about his cardiovascular
health, and second by failing to provide a reasonable accommodation during a related
cardiovascular test. A jury returned a verdict for Sanders on both claims. The district
court2 denied Union Pacific’s renewed motion for judgment as a matter of law. Union
Pacific appeals, and we affirm.
I.
Allan Sanders worked for Union Pacific as a foreman general. This position
required Sanders to oversee mechanics for Union Pacific’s trains, known as carmen,
and to assume their responsibilities if none of them were available to respond to a
distressed train. Some of the carmen’s responsibilities require significant physical
exertion. One such responsibility is replacing knuckles—part of the equipment that
links the cars of a train together—that weigh approximately 86 pounds each.
This physical component of Sanders’s job became a problem only when he
suffered complications relating to a bleeding ulcer. One of those complications was
a brief cardiac arrest. Sanders was resuscitated, underwent a successful operation,
and fully recovered. Before Sanders could resume his duties, Union Pacific required
him to undergo a fitness-for-duty evaluation. Dr. Charbonneau, an associate medical
director for Union Pacific, oversaw the evaluation.
2The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
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Of primary concern to this appeal, Union Pacific required Sanders to perform
a “Bruce protocol” test—that is, a test where Sanders had to walk quickly or jog on
a treadmill—to demonstrate his aerobic capacity. Sanders stopped this test early
because of “fatigue.” He explained to Union Pacific that his fatigue was due to pain
in his knees caused by osteoarthritis rather than any issue with his heart.
Sanders requested that Union Pacific allow him to perform an alternate test on
a bicycle because the bike would put less strain on his knees. Union Pacific told him
that it would not accept the results of a bicycle test. Based on the results of the
treadmill test, Dr. Charbonneau concluded that Sanders had low aerobic capacity and
would be unable to perform strenuous labor. He thus imposed work restrictions that
prevented Sanders from returning to work as a foreman general.
Sanders sued Union Pacific and alleged discrimination under the ADA. A jury
returned a verdict for Sanders and awarded damages of $1,023,424.34. We review
the denial of a motion for judgment as a matter of law de novo. We will reverse only
if a reasonable jury, taking all reasonable inferences in favor of the verdict, would not
have a legally sufficient evidentiary basis to reach its decision. Fed. R. Civ. P.
50(a)(1).
II.
At the outset, Union Pacific argues that Sanders waived any argument
regarding cardiovascular concerns or knee problems because his complaint
specifically identified only his ulcer. The Federal Rules of Civil Procedure, however,
provide that “[w]hen an issue not raised by the pleadings is tried by the parties’
express or implied consent, it must be treated in all respects as if raised in the
pleadings.” Fed. R. Civ. P. 15(b)(2). Consent may be implied “where a party has
actual notice of an unpleaded issue and has been given an adequate opportunity to
cure any surprise resulting from the change in the pleadings” or “when evidence
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relevant to an unpleaded issue has been introduced at trial without objection.” Trip
Mate, Inc. v. Stonebridge Cas. Ins., 768 F.3d 779, 784-85 (8th Cir. 2014) (internal
quotations omitted).
Sanders raised his knee problems and possible cardiovascular limitations
before trial, and Union Pacific was afforded sufficient notice of the claims. Indeed,
the company litigated the merits of those impairments in a motion for summary
judgment and addressed the conditions in its proposed jury instructions. The final
jury instructions included a definition of “disability” that included impairments that
substantially limit cardiovascular and musculoskeletal functions. The company also
did not object to the evidence received at trial regarding those impairments. Union
Pacific thus impliedly consented to amend the pleadings, and the jury properly could
base its verdict on Sanders’s cardiovascular and orthopedic impairments.
Turning to Sanders’s claim of disparate treatment, Union Pacific contends that
the jury could not reasonably have concluded that by imposing work restrictions, the
company “discriminate[d] against a qualified individual on the basis of disability.”
42 U.S.C. § 12112(a). To establish this claim, Sanders was required to show that (1)
he was “disabled,” (2) he was “qualified,” and (3) the employer imposed work
limitations because of his disability. See Chalfant v. Titan Distrib., Inc., 475 F.3d
982, 988 (8th Cir. 2007). Union Pacific challenges the sufficiency of the evidence
on all three elements.
The first issue is disability. “Under the ADA, being regarded as disabled by
an employer can suffice to establish a disability within the meaning of the statute if
the plaintiff shows that his employer subjected him to an adverse action ‘because of
an actual or perceived physical or mental impairment . . . .’” Fischer v. Minneapolis
Pub. Schs., 792 F.3d 985, 988 (8th Cir. 2015) (quoting 42 U.S.C. § 12102(3)(A)).
Physical or mental impairments include “[a]ny physiological disorder or condition . . .
affecting one or more body systems, such as . . . [the] cardiovascular.” 29 C.F.R.
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§ 1630.2(h)(1). Dr. Charbonneau admitted that he required the treadmill test and then
refused to allow Sanders to return to work because of his concern that Sanders’s heart
was impaired. Based on this evidence that Union Pacific perceived Sanders as having
a heart impairment and restricted him from work on that basis, a reasonable jury could
conclude that the railroad regarded Sanders as being disabled. See Fischer, 792 F.3d
at 988.
Union Pacific contends that it did not “regard” Sanders as disabled because it
relied on Dr. Charbonneau’s evaluation. The company relies on decisions from this
court holding that restrictions based on the recommendations of a physician could not
establish a perception of disability. The rationale in those cases was that the
“regarded as” provision of the statute was designed to combat “archaic attitudes,
erroneous perceptions, and myths,” and a doctor’s report does not suffer from those
infirmities. See Kozisek v. County of Seward, 539 F.3d 930, 935 (8th Cir. 2008)
(quoting Brunko v. Mercy Hosp., 260 F.3d 939, 942 (8th Cir. 2001)); see also
Breitkreutz v. Cambrex Charles City, Inc., 450 F.3d 780, 784 (8th Cir. 2006).
The ADA Amendments Act of 2008, however, superseded the cited decisions.
The amendments included a definition of “being regarded as having such an
impairment,” 42 U.S.C. § 12102(3), and added a rule of construction that “[t]he
definition of disability in this chapter shall be construed in favor of broad coverage
of individuals under this chapter to the maximum extent permitted by the terms of this
chapter.” Id. § 12102(4)(A). These changes expanded the scope of “regarded as”
claims. See Brown v. City of Jacksonville, 711 F.3d 883, 889 (8th Cir. 2013). The
amended text provides no basis to limit the prohibition to discrimination based on
“archaic attitudes, erroneous perceptions, and myths.” See 29 C.F.R. pt. 1630 app.
§ 1630.2(l). Dr. Charbonneau’s recommendation thus does not insulate the employer
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from liability. A reasonable jury could have concluded that Union Pacific regarded
Sanders as disabled.3
The second question is whether the jury reasonably concluded that Sanders was
qualified. An employee is “qualified” if he can perform the essential functions of his
job with or without reasonable accommodation. 42 U.S.C. § 12111(8). Union Pacific
alleges that Sanders was unable to perform strenuous labor, including the essential
task of lifting 86-pound knuckles. But the jury heard considerable evidence that
Sanders could lift knuckles and perform other strenuous activities without
accommodation. His doctors cleared him for work without lifting limitations. The
carmen’s job description states that they lift knuckles only “rarely” and “with
assistance.” Sanders testified that he regularly performed activities that were more
strenuous than his work for Union Pacific. And no test reliably showed that Sanders
could not lift 86 pounds. In light of this evidence, a reasonable jury could conclude
that Sanders was qualified to perform the essential functions of a foreman general.
The third issue is whether the jury reasonably found that Union Pacific acted
because of the employee’s disability. The evidence showed that Union Pacific
stopped Sanders from working as a foreman general because it believed he had
diminished cardiovascular health, which is an impairment under the ADA. 29 C.F.R.
§ 1630.2(h)(1).
Union Pacific argues that Sanders failed to meet this element because he
presented no evidence that the company was hostile toward disabled persons. But
while our cases have spoken in terms of “discriminatory animus,” the ADA does not
require evidence of prejudice toward the disabled. Rather, “animus” in this context
3Our decision in Wisbey v. City of Lincoln, 612 F.3d 667, 672-73 (8th Cir.
2010), relied on Brunko and Breitkreutz, but the events at issue in Wisbey occurred
in 2007, id. at 669-71, and the 2008 amendments did not apply retroactively. Nyrop
v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 734 n.4 (8th Cir. 2010).
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means simply that the employer was motivated by the employee’s disability. See St.
Martin v. City of St. Paul, 680 F.3d 1027, 1033 (8th Cir. 2012); EEOC v. Dolgencorp,
LLC, 899 F.3d 428, 436 (6th Cir. 2018). Sanders satisfied the third element in this
case because “the defendant acknowledges relying on the plaintiff’s [impairment] in
reaching the employment decision.” Norcross v. Sneed, 755 F.2d 113, 116 (8th Cir.
1985); see Dolgencorp, LLC, 899 F.3d at 436. Sanders thus presented sufficient
evidence for a reasonable jury to find that Union Pacific intentionally discriminated
against him because of a perceived disability.
Union Pacific contends nonetheless that it was entitled to judgment based on
a “direct threat” defense. An employer may defend against a claim of discrimination
under the ADA on the ground that an employee poses a “direct threat” to the health
or safety of others in the workplace—that is, because of his disability, he creates “a
significant risk to the health or safety of others that cannot be eliminated by
reasonable accommodation.” 42 U.S.C. §§ 12111(3); 12113(b). The jury was
instructed on this defense and found that it did not apply.
To establish the defense, Union Pacific was required to show that its
determination that Sanders posed a direct threat was: (1) the result of an
individualized assessment, (2) objectively reasonable, and (3) based on the “most
current medical knowledge and/or on the best available objective evidence.” 29
C.F.R. § 1630.2(r); see Bragdon v. Abbott, 524 U.S. 624, 650 (1998); EEOC v.
Wal-Mart Stores, Inc., 477 F.3d 561, 571-72 (8th Cir. 2007).
There was sufficient evidence here for a jury to conclude that Union Pacific
failed to prove the second and third elements of the defense. Sanders’s medical
expert testified that Union Pacific should have allowed Sanders to undergo a test on
a bicycle in light of his knee condition and medication regimen. These factors, the
expert explained, rendered the results from the treadmill test inaccurate. The expert
opined that Union Pacific’s decision to limit Sanders was “completely uncalled for,
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completely wrong, and not based on any medical principles at all.” A reasonable jury
could have accepted this testimony and concluded that the company failed to prove
that its decision was objectively reasonable and based on the best available objective
evidence. The district court thus did not err in denying Union Pacific’s motion for
judgment as a matter of law on Sanders’s claim of disparate treatment.
III.
Union Pacific also challenges the jury’s verdict on Sanders’s failure-to-
accommodate claim. Discrimination in violation of the ADA includes “not making
reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual.” 42 U.S.C. § 12112(b)(5)(A). Employers are
generally required to administer tests in a manner that accurately reflects the
employee’s ability rather than the limitations caused by his impairment. See id.
§ 12112(b)(7). Reasonable accommodation thus includes the “appropriate adjustment
or modifications of examinations . . . for individuals with disabilities.” Id.
§ 12111(9)(B).
Union Pacific argues that there was no legally sufficient basis for the jury to
conclude that Sanders proved the elements of his claim—namely, that: (1) Union
Pacific knew that Sanders was disabled; (2) Sanders requested an accommodation;
(3) Union Pacific failed to engage in an “interactive process” with Sanders about
possible accommodations; and (4) Sanders’s disability could have been reasonably
accommodated if the interactive process had taken place. See Garrison v.
Dolgencorp, LLC, 939 F.3d 937, 941 (8th Cir. 2019).
Sanders testified that he has arthritis in his knees that limits his ability to walk
quickly enough on the treadmill to demonstrate accurately his aerobic capacity. This
was sufficient evidence to allow the jury to conclude that Sanders is actually
disabled—that he has a physical impairment (arthritis) that substantially limits a
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major life activity (walking). 42 U.S.C. § 12102(1)(A), (2)(A). There was also ample
evidence that Union Pacific knew of Sanders’s knee problems: Union Pacific
possessed Sanders’s medical records; Sanders told Union Pacific employees that he
was concerned about his knees before taking the treadmill test; and Sanders told Dr.
Charbonneau later that his knees limited his performance on the treadmill test.
The record also supports a finding that Sanders requested an accommodation:
he asked whether he could take the test on a bicycle rather than a treadmill. Once
Sanders made this request, Union Pacific was required to engage in an “informal,
interactive process” with him. Battle v. United Parcel Serv., Inc., 438 F.3d 856, 862
(8th Cir. 2006) (internal quotation omitted). That process is designed to identify the
limitations caused by the employee’s disability and potential reasonable
accommodations to overcome those limitations. An employer hinders this interactive
process when it “does not in good faith assist the employee in seeking
accommodations,” and “the employee could have been reasonably accommodated but
for the employer’s lack of good faith.” Id. at 862-63.
Here, Union Pacific did not assist Sanders in identifying a suitable
accommodation for his impaired knees. Instead, a company employee informed
Sanders that only results from a treadmill test would be acceptable. This directive
eliminated the possibility of an accommodation. The record also included evidence
showing that the company could reasonably have accommodated Sanders. Three
physicians testified that a bicycle test is a medically appropriate alternative to the
treadmill test for someone with impaired knees.
Union Pacific contends that Sanders did not show that he would have passed
the bicycle test. Assuming that the employee must prove not only that a reasonable
alternative test was available, but also that he would have performed satisfactorily on
that test, we find no error. Sanders stopped the treadmill test only because of his
knees. His doctors cleared him for work without restrictions. There was evidence
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that he regularly performs physical activities, such as ranching, that are as strenuous
as his work as a foreman general. A reasonable jury could conclude that Sanders
would have performed well enough on the bicycle test to return to work.
In sum, the record includes a legally sufficient basis for the jury to conclude
that Union Pacific did not engage in the interactive process, could have provided a
reasonable accommodation if it had engaged in the required interaction, and thus
discriminated by failing to accommodate Sanders. The district court did not err by
denying Union Pacific’s motion for judgment as a matter of law on Sanders’s failure-
to-accommodate claim.
* * *
The judgment of the district court is affirmed.
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