Todd DeGeer v. Union Pacific Railroad Co.

United States Court of Appeals
For the Eighth Circuit
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No. 23-2625
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Todd DeGeer
Plaintiff - Appellant
v.
Union Pacific Railroad Co.
Defendant - Appellee
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Public Justice
Amicus on Behalf of Appellant(s)
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 7, 2024
Filed: September 3, 2024
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Before SMITH, KELLY, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.

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A group of Union Pacific Railroad Company employees brought a class action
against the company alleging that its fitness-for-duty program violated the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a), (b)(6). Todd DeGeer
thought he was a member of that class. When we decertified it, he filed an Equal
Employment Opportunity Commission (EEOC) charge and an individual suit,
believing that American Pipe & Construction Co. v. Utah tolled his claims. 414 U.S.
538 (1974). The district court disagreed and found that DeGeer was not a member
of the class as narrowly defined in the certification order, so it dismissed his
individual claims as untimely. But because the revised definition did not
unambiguously exclude DeGeer, we reverse and remand.
I.
Union Pacific has a fitness-for-duty program to make sure that employees can
“[s]afely perform a job, with or without reasonable accommodations,” and “[m]eet
medical standards established by regulatory agencies in accordance with federal and
state laws.” The Federal Railroad Agency mandates regular testing to assess
whether employees in safety-sensitive positions can “recognize and distinguish
between the colors of railroad signals” by using one of an approved list of tests. 49
C.F.R. § 242.117(h)(3). If an employee fails that test, he may be sent for “further
medical evaluation by a railroad’s medical examiner to determine” if he can still
safely perform, including a “retest.” § 242.117(j). Union Pacific used the Ishihara
test, and if a worker failed it, he could take a color vision field test. But after a deadly
railroad crash, Union Pacific updated its fitness-for-duty program. It created a new
secondary test, which allegedly doesn’t model real-world conditions or pass
minimum validation standards.
Despite his longstanding color vision deficiency, DeGeer worked at Union
Pacific for years without incident—most recently as a conductor, a safety-sensitive
position. When he had taken the signal tests in the past, he typically failed the
Ishihara test and passed a secondary test. But after Union Pacific replaced the
secondary test, DeGeer failed both. Though he insists that he can still do the job of

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a conductor, Union Pacific removed him from service in June 2017, imposed
permanent work restrictions, and barred him from working in any job where he
would have to identify traffic signals.
Over a year before that happened, former Union Pacific employees filed a
class action alleging that the company’s fitness-for-duty policies and practices
violated the ADA. See Harris v. Union Pac. R.R. Co., 329 F.R.D. 616, 620–21 (D.
Neb. 2019). DeGeer wasn’t a named plaintiff, but he was aware of the suit and was
one of 44 employees to submit a declaration with the plaintiffs’ certification motion.
Although the class definition changed over time, DeGeer always thought that he was
a member.
The operative complaint defined the class as Union Pacific employees who
“were removed from service over their objection, and/or suffered another adverse
employment action . . . for reasons related to a Fitness-for-Duty evaluation.” There
is no question that DeGeer was a member of the class under this definition. But
Union Pacific thought it was too broad. So in response to discovery requests, it
provided a list of employees who were subject to a fitness-for-duty evaluation
“related to a Reportable Health Event.” Union Pacific’s medical rules define a
reportable health event as “any new diagnosis, recent events, and/or change” in a list
of conditions including “significant vision or hearing changes.” DeGeer was on the
list.
When plaintiffs moved to certify the class, though, the definition changed
again. Rather than employees subject to a fitness-for-duty evaluation “related to” a
reportable health event, the proposed class included “[a]ll individuals who ha[d]
been or w[ould] 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 [Harris].” Id. at 628 (emphasis added). The Harris district court certified the
class under this narrowed definition. Id. at 627–28.

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After we reversed certification, Harris v. Union Pac. R.R. Co., 953 F.3d 1030
(8th Cir. 2020), DeGeer filed an EEOC charge. He then filed suit, alleging violations
of the ADA and seeking a declaration that he was a member of the Harris class. If
DeGeer’s claims were tolled during the pendency of the Harris class, his suit was
timely. But in its motion for judgment on the pleadings, Fed. R. Civ. P. 12(c), Union
Pacific argued that DeGeer was not a member of the class as certified and so was
not entitled to American Pipe tolling. The court agreed, focusing on language in
DeGeer’s declaration that “Union Pacific required [him] to undergo a fitness for duty
evaluation as part of [his] routine FRA recertification”—that is, not “as a result of”
a reportable health event. So while DeGeer was waiting to see how the Harris appeal
would play out, the clock was ticking. By the time he filed his EEOC charge, he had
blown past the 300-day deadline. See 42 U.S.C. § 2000e–5(e)(1). The court
dismissed his claims as time-barred, and this appeal follows.
II.
“[T]he commencement of a class action suspends the applicable statute of
limitations as to all asserted members of the class who would have been parties had
the suit been permitted to continue as a class action.” Am. Pipe, 414 U.S. at 554.
“Once the statute of limitations has been tolled, it remains tolled for all members of
the putative class until class certification is denied.” Crown, Cork & Seal Co. v.
Parker, 462 U.S. 345, 354 (1983). So long as asserted class members maintain their
status, they enjoy the benefit of American Pipe tolling when they file an otherwise
untimely individual suit. Id. at 350.
The American Pipe tolling rule is “grounded in the traditional equitable
powers of the judiciary.” Cal. Pub. Emps.’ Ret. Sys. v. ANZ Sec., Inc., 582 U.S. 497,
509 (2017). It furthers the efficiency purpose of class actions by disincentivizing
plaintiffs wary of an adverse certification decision from filing needless protective
suits. See Am. Pipe, 414 U.S. at 550, 556 (observing that federal class actions are
designed to promote “litigative efficiency and economy” and “avoid, rather than
encourage, unnecessary filing of repetitious papers and motions”). And it serves the

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reliance interests that statutes of limitations aim to protect. See Crown, Cork, 462
U.S. at 352–53. By filing a class action, named plaintiffs put defendants on notice
of “the substantive claims being brought against them” and “the number and generic
identities of the potential plaintiffs who may participate in the judgment.” Id. at 353
(quoting Am. Pipe, 414 U.S. at 555). And by relying on the class to press their
claims, asserted class members “cannot be accused of sleeping on their rights.” Id.
at 352.
No one disputes that that tolling ended for the entire Harris class when we
reversed certification. The only question is whether it ended for DeGeer sooner—
when the district court certified the class under a narrower definition than pleaded,
arguably kicking him out of the class. We have rarely considered the contours of
American Pipe tolling, and we have never addressed this issue. But other courts
have.
Following the decertification of the Harris class, the Ninth Circuit held that
“[w]here the scope of the class definition in an initial complaint ‘arguably’ includes”
the plaintiff, he “remain[s] entitled to American Pipe tolling unless and until a court
accepts a new definition that unambiguously excludes them.” DeFries v. Union Pac.
R.R. Co., 104 F.4th 1091, 1099 (9th Cir. 2024). Any ambiguities are resolved in
favor of applying American Pipe tolling. Id. at 1100. Applying this test, the court
found that the narrowed definition did not unambiguously exclude its color vision
appellant. Id. at 1106–07. “[E]xtratextual evidence” that the parties and the Harris
district court treated him as a putative class member reinforced that finding. Id. at
1108–09.
The Fifth Circuit came out much the same way. Unlike DeFries, it found that
for tolling purposes, the Harris district court certified an “expansive” class that
included the color vision appellant. Zaragoza v. Union Pac. R.R. Co., — F.4th —,
2024 WL 3755612, at *5 (5th Cir. Aug. 12, 2024). It based its finding on the district
court’s treatment of the list Union Pacific provided and the 44 declarants. Id. But
it also agreed with DeFries that only an unambiguous exclusion from the class could

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end American Pipe tolling. And “even considering the matter afresh,” it found that
the narrowed definition did not unambiguously exclude the appellant. Id. at *6.
To be sure, a district court may limit an asserted class by certifying it under a
definition that is unambiguously narrower than originally pleaded. See Smith v.
Pennington, 352 F.3d 884, 894 (4th Cir. 2003). But we will not consider a plaintiff’s
individual interests abandoned unless there is a class certification decision that
“definitively excludes” him. Choquette v. City of New York, 839 F. Supp. 2d 692,
699 (S.D.N.Y. 2012). We join our sister circuits in holding that “anything short of
unambiguous narrowing would undermine the balance contemplated by the Supreme
Court” in American Pipe and is insufficient to exclude a plaintiff from a class for
tolling purposes. DeFries, 104 F.4th at 1099; see also Zaragoza, 2024 WL 3755612,
at *6 (quoting DeFries, 104 F.4th at 1099); Pennington, 352 F.3d at 894.
III.
We review the grant of judgment on the pleadings de novo, accepting the non-
movant's factual allegations as true, granting all reasonable inference in his favor,
and applying the same standards that govern a Rule 12(c) motion to dismiss. Ellis
v. City of Minneapolis, 860 F.3d 1106, 1109 (8th Cir. 2017). We may look beyond
the complaint to determine the scope of the class. See Pennington, 352 F.3d at 891;
Sawtell v. E.I. du Pont de Nemours and Co., 22 F.3d 248, 253 (10th Cir. 1994).
“The theoretical basis on which American Pipe rests is the notion that class
members are treated as parties to the class action.” In re WorldCom Sec. Litig., 496
F.3d 245, 255 (2d Cir. 2007). So once a district court certifies a class—having
“found that the named plaintiffs asserted claims that were ‘typical of the claims or
defenses of the class’ and would ‘fairly and adequately protect the interests of the
class’”—“the claimed members of the class [stand] as parties to the suit until and
unless they receive[] notice thereof” and decide to opt out. Am. Pipe, 414 U.S. at
550–51 (quoting Fed. R. Civ. P. 23(a)(3), (4)).

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Here, the named plaintiffs asserted a class of over 7,000 Union Pacific
employees. That number tracked the list Union Pacific provided in discovery, which
included DeGeer. The district court called it a “class list,” Harris, 329 F.R.D. at
627, but the railroad has steadfastly rejected this characterization. Resisting
certification, it argued that the list was “significantly broader” than the narrowed
class definition that the plaintiffs proposed. And it urged the court to deny
certification in part because “[t]he putative class is wildly diverse in . . . the reasons
for their [fitness-for-duty] evaluations.”
Over Union Pacific’s objections, the court certified the class, finding
typicality and adequacy of representation. Id. at 624. It relied in part on the list of
employees and “declarations from 44 class members who have experienced the
discrimination alleged” in the complaint—one of whom was DeGeer. Id. at 624 &
n.3 (emphasis added). It then ordered notices be sent to everyone on the “class list,”
though there is no evidence that they ever went out. Id. at 627–28. DeGeer was a
claimed member of the broad class that the court certified, so he stood as a party to
the suit. Am. Pipe, 414 U.S. at 551.
Our inquiry might end there. The district court considered DeGeer a member
of the class it certified, so tolling applies. See Zaragoza, 2024 WL 3755612, at *7.
But Union Pacific argues that the current dispute over class membership requires us
to parse its policies and decide for ourselves whether DeGeer was in the class.
Because we cannot divorce the issue of membership from the efficiency and reliance
purposes of American Pipe tolling, we reach the same result: DeGeer’s individual
claims were tolled until we decertified the Harris class.
Whether the narrowed definition excluded DeGeer turns on the kinds of subtle
distinctions in language that are fodder for lawyers and quicksand for laymen. The
parties spar, for example, over whether there was any material narrowing between
the definition that governed the list of 7,000-plus employees—“related to” a
reportable health event”—and the certified definition—“result of” a reportable
health event.” Union Pacific conceded to the Harris district court that the line was

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not exactly clear and separating out employees with a reportable health event that
affected but did not trigger their fitness-for-duty evaluations was a difficult task.
But the real fight is in whether a failed agency-mandated test could also be a
reportable health event triggering a fitness-for-duty evaluation. Union Pacific
argues that DeGeer admitted in his declaration that his evaluation was “a part of” his
FRA testing, not a reportable health event. And in any case, it says, he did not
experience the kind of significant vision change needed to qualify as a reportable
health event. DeGeer responds that failing the signal tests was a “new diagnosis”—
color vision no longer sufficient to do the job—or at the very least, it indicated a
possible vision change.
We agree with the district court here that whether the class definition included
DeGeer is a “close call.” Because we think both positions have merit, we need not
decide who has the right of the argument. See DeFries, 104 F.4th at 1107 (observing
that “the better reading of the definition” is that failing the “color-vision testing
protocol is a ‘reportable health event’”); Zaragoza, 2024 WL 3755612, at *6 (finding
that plaintiff’s “failed Ishihara test in 2016 at least suggested that his previously
certified color vision acuity may have no longer been passable, such that it met the
definition of a ‘reportable health event’”). What matters is the “genuine ambiguity”
in the definition’s scope. DeFries, 104 F.4th at 1107; cf. Sawtell, 22 F.3d at 253–54
(holding that American Pipe did not toll plaintiff’s claim where she “presented no
evidence supporting the inference she was a putative member” and “the narrowness
of the class definitions was clear”).
Because 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. To hold otherwise would frustrate the purposes of the rule. American
Pipe does not require bystander plaintiffs like DeGeer “to follow the class action
closely, looking for any change in the class definition and carefully parsing what it
might mean.” DeFries, 104 F.4th at 1099. He was a member of the original class
that was not unambiguously narrowed when certified, so it was reasonable for him

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to rely1 on the Harris class to continue to press his claims. See Crown, Cork, 462
U.S. at 352–53. And Union Pacific had notice of DeGeer and his claims. See id.
Challenging certification of what it called a “sprawling” and “diverse” class, it
pointed to the “personal stories of the 44 declarants” as justification for reversal
because they revealed different triggering events for the fitness-for-duty evaluations
and a “broad[] universe” of conditions, including “vision deficiencies.”
Whether or not the Harris district court should have found that the narrowed
definition excluded plaintiffs like DeGeer, no one—not the district court, not the
named plaintiffs, not DeGeer, not even Union Pacific—thought that the court did.
Statutory limitation periods are not “trap[s] for the unwary.” Am. Pipe, 414 U.S. at
551 n.21 (citation omitted). They 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.” Id.
at 554 (quoting Ord. of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348–
49 (1944)). Union Pacific cannot claim surprise. Nor can DeGeer be accused of
sleeping on his rights.
IV.
Because American Pipe tolled DeGeer’s claims during the pendency of the
Harris class, we reverse the district court’s judgment and remand the case for further
proceedings.
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1 That isn’t to say that the availability of American Pipe tolling turns on
whether a plaintiff can show that he has pursued his “claims with requisite
diligence.” Barryman-Turner v. District of Columbia, 115 F. Supp. 3d 126, 132
(D.D.C. 2015). The Supreme Court explicitly disclaimed actual reliance.
“[P]otential class members are mere passive beneficiaries of the action brought in
their behalf” and even “asserted class members who were unaware of the
proceedings brought in their interest or who demonstrably did not rely on the
institution of those proceeding” enjoy the protections of this broad tolling rule. Am.
Pipe, 414 U.S. at 551–52.

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