James Hess v. Union Pacific Railroad Company

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-1211
___________________________
James Hess
Plaintiff - Appellant
v.
Union Pacific Railroad Company
Defendant - Appellee
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: November 20, 2024
Filed: June 12, 2025
____________
Before COLLOTON, Chief Judge, BENTON and KELLY, Circuit Judges.
____________
KELLY, Circuit Judge.
James Hess brought this employment discrimination action against Union
Pacific Railroad Company (Union Pacific), asserting it unlawfully terminated him
because of his disability. The district court dismissed Hess’s action as untimely, and
he appeals. In light of our recent decision in DeGeer v. Union Pacific Railroad Co.,
113 F.4th 1035 (8th Cir. 2024), we reverse and remand.

-- 1 of 6 --

-2-
I.
Union Pacific has a “Fitness-for-Duty” policy meant to ensure employees can
“safely perform the functions of a job, with or without reasonable accommodations
and meet medical standards established by regulatory agencies in accordance with
federal and/or state laws.” The policy requires employees to disclose particular
health conditions, as well as “Reportable Health Events,” which Union Pacific
defines in its Medical Rules as “a new diagnosis, recent event, or change in a prior
stable condition,” including: cardiovascular conditions, “seizure or loss of
consciousness,” “significant vision or hearing change,” “diabetes treated with
insulin,” and “severe sleep apnea.”
In February 2016, a putative class of current and former Union Pacific
employees (the Harris class) filed suit, asserting that Union Pacific discriminated
against them because of their disabilities.1 See Harris v. Union Pac. R.R., 329 F.R.D.
616, 620 (D. Neb. 2019). The plaintiffs alleged that Union Pacific used its fitness-
for-duty policy inappropriately, routinely disqualifying employees from service
based on their disabilities without conducting individualized review to confirm those
employees’ ability to work safely or effectively. The Harris plaintiffs initially
proposed a class definition of:
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
1 Hess attached filings and documents prepared in the course of the Harris
litigation to his complaint, his response opposing Union Pacific’s motion to dismiss,
and his briefing on appeal. To the extent any filings from the Harris litigation are not
already properly before us, we take judicial notice of them. See Zerger & Mauer LLP
v. City of Greenwood, 751 F.3d 928, 935 n.7 (8th Cir. 2014) (noting that “federal
courts may sua sponte take judicial notice of proceedings in other courts if they relate
directly to the matters at issue” (quoting Conforti v. United States, 74 F.3d 838, 840
(8th Cir. 1996))).

-- 2 of 6 --

-3-
filed an administrative charge of discrimination to the resolution of this
action.
The complaint also alleged that “Union Pacific’s Fitness-for-Duty program is even
broader in practice than the Medical Rules reflect.”
Hess began working for Union Pacific in May 2013. In May 2015, he was
prescribed Xanax to treat his post-traumatic stress disorder. At the time, Union
Pacific did not prohibit its employees from taking drugs like Xanax, but in 2016,
Union Pacific changed course, releasing a list of prohibited medications that
included Xanax. Union Pacific learned that Hess was taking Xanax in January 2017,
removed him from service, and initiated a fitness-for-duty evaluation. Roughly one
year later, Union Pacific sent Hess his “Fitness for Duty Determination,” which
placed him “on permanent work restrictions,” disqualifying him from doing his job.
The parties do not dispute that, in alignment with the original, proposed Harris class
definition, Hess was “removed from service . . . for reasons related to a Fitness-for-
Duty evaluation.”
The district court ultimately certified the Harris class, but not as originally
proposed. See Harris, 329 F.R.D. at 628. Instead, as requested by the plaintiffs in
their motion for class certification, the class was certified under a different, narrower
definition: “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 this action.” Id. (emphasis added). Union Pacific
appealed, and in March 2020, this court decertified the class. See Harris v. Union
Pac. R.R., 953 F.3d 1030, 1032 (8th Cir. 2020).
After decertification, Hess filed an EEOC charge of discrimination and
received a letter informing him of his right to sue. He then filed this action, raising
two disability discrimination claims under the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq. Union Pacific moved to dismiss the complaint as
untimely. According to Union Pacific, because Hess was not a member of the class

-- 3 of 6 --

-4-
as certified, the statute of limitations on his claims was not tolled while the class
action was pending. The district court agreed and dismissed Hess’s complaint.
Hess appeals.
II.
“[T]he commencement of a class action suspends the applicable statute of
limitations [for all putative class members].” Am. Pipe & Constr. Co. v. Utah, 414
U.S. 538, 554 (1974). In turn, a denial of class certification—or, in this case,
decertification—typically starts the clock again. See Crown, Cork & Seal Co. v.
Parker, 462 U.S. 345, 354 (1983); see also DeGeer, 113 F.4th at 1039.
For purposes of appeal, the parties agree that the filing of the Harris class
complaint tolled Hess’s claims because he was a putative member of the class as
initially defined. The question in dispute is when the clock started running again.
Union Pacific argues that Hess was excluded from the narrower class certified in
Harris and, as a result, American Pipe tolling ceased for Hess’s claims on the date
the court certified the class.2 Thus, Union Pacific asserts Hess’s complaint was filed
too late. Hess disagrees, asserting that he remained a member of the class, even after
it was narrowed and certified, and that American Pipe tolling applied until the date
of decertification.3
2 We need not address Union Pacific’s alternative argument that the date when
the Harris plaintiffs filed the motion for class certification is the date tolling ended,
because it would not change the analysis here.
3 Charges of discrimination must typically be filed with the EEOC “within 300
days of the alleged discriminatory act.” Tusing v. Des Moines Indep. Cmty. Sch.
Dist., 639 F.3d 507, 520 (8th Cir. 2011) (citations omitted). Since Hess filed his
EEOC charge of discrimination in April 2020, one month after this court decertified
the Harris class, Harris, 953 F.3d at 1032, his suit is timely if he can take advantage
of tolling until the date of decertification.

-- 4 of 6 --

-5-
Our recent opinion in DeGeer—issued after the district court entered its order
dismissing Hess’s complaint—guides our answer. See 113 F.4th at 1041. In DeGeer,
we reversed the dismissal of another putative Harris class member’s complaint. See
id. Just as it does here, Union Pacific argued that DeGeer was not included within
the narrow class certified by the district court because DeGeer did not suffer a
“reportable health event,” and therefore was not terminated as a “result of” one. See
id. at 1040. We rejected this argument, declining to resolve the question of whether
DeGeer was included or not. Id. (“Because we think both positions have merit, we
need not decide who has the right of the argument.”). Instead, we determined that,
“[b]ecause the Harris class did not unambiguously exclude DeGeer when the district
court certified it under a narrowed definition, he was entitled to American Pipe
tolling.” Id. at 1041. In so holding, we joined the Fifth and Ninth Circuits, who had
recently adopted the same rule. See Zaragoza v. Union Pac. R.R., 112 F.4th 313, 322
(5th Cir. 2024); DeFries v. Union Pac. R.R., 104 F.4th 1091, 1099 (9th Cir. 2024).
Like DeGeer, Hess was not “unambiguously exclude[d]” from the certified
class. See DeGeer, 113 F.4th at 1041. Union Pacific points to its Medical Rules and
argues that Hess did not have a reportable health event, because taking a restricted
prescription medication is not included within the five categories of health
conditions that can constitute reportable health events. Thus, Union Pacific asserts,
Hess could not have been terminated “as a result of a reportable health event.” See
Harris, 329 F.R.D. at 628.
But Hess alleged that, in practice, Union Pacific treated a much broader array
of conditions than those listed in the Medical Rules as a reportable health event that
triggered the fitness-for-duty process, including “non-listed health condition[s]” and
taking restricted prescription medications.4 Indeed, Union Pacific has already
4 Hess also notes that, if Union Pacific’s interpretation of the class definition
controlled, several of the named plaintiffs in the Harris class (including Harris
himself) would not be class members, because they were routed through the fitness-
for-duty evaluations based on disclosures of longstanding conditions instead of after
“a new diagnosis, recent event, or change in a prior stable condition.”

-- 5 of 6 --

-6-
represented as much to this court. Seeking reversal of the class certification order on
appeal, Union Pacific asserted that even the narrowed Harris class would include
“more than 7,000 . . . Union Pacific employees,” with “a broad universe of medical
conditions, including but not limited to heart disease, brain injury, post-traumatic
stress disorder, . . . substance abuse, and epilepsy.” Opening Br. for Appellant at i,
2, Harris v. Union Pac. R.R., No. 19-1514 (8th Cir. Apr. 25, 2019) (emphases added).
As the Fifth Circuit noted, “Union Pacific may well be estopped from discarding its
previous representations of the Harris class’s overbreadth to argue here that [the]
same class was narrow enough to have excluded [Hess].” Zaragoza, 112 F.4th at 321
n.5. In any event, the district court in Harris, in its certification order, did not state
that the term “reportable health event” in the class definition was defined solely by
the Medical Rules. See Harris, 329 F.R.D. at 628.
Accepting Hess’s factual allegations as true and drawing all reasonable
inferences in his favor, Grawitch v. Charter Commc’ns, Inc., 750 F.3d 956, 960 (8th
Cir. 2014), Hess was not unambiguously excluded from the certified class.
Therefore, Hess may take advantage of American Pipe tolling until the date of
decertification, see DeGeer, 113 F.4th at 1041, and his suit is timely.
We reverse and remand for further proceedings.5
______________________________
5 We grant Union Pacific’s motion for leave to file a sur-reply brief.

-- 6 of 6 --