Donahue v. Union Pacific Railroad Company

— 1 — — 2 — — 3 — 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 JUSTIN DONAHUE, et al., Case No. 21-cv-00448-MMC 8 Plaintiffs, ORDER GRANTING DEFENDANT'S 9 v. MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS; DENYING 10 UNION PACIFIC RAILROAD PLAINTIFFS' MOTION FOR LEAVE COMPANY, TO FILE FIRST AMENDED 11 COMPLAINT Defendant. — 12 — 13 Before the Court are two motions: (1) defendant Union Pacific Railroad 14 Company's ("Union Pacific") Motion, filed April 9, 2021, "for Partial Judgment on the 15 Pleadings"; and (2) plaintiffs Justin Donahue ("Donahue"), Jason Campbell ("Campbell"), 16 and Jacob Goss's ("Goss") Motion, filed May 11, 2021, "for Leave to File First Amended 17 Complaint." The motions have been fully briefed. Having read and considered the 18 papers filed in support of and in opposition to the motions, the Court deems the matters 19 suitable for decision on the parties' respective written submissions, VACATES the 20 hearing scheduled for June 18, 2021, and rules as follows. 21 In the above-titled action, plaintiffs, who formerly worked for Union Pacific as 22 conductors, allege they were "removed from service" under Union Pacific's "Fitness-for23 Duty program" (see Compl. ¶¶ 1, 22-24, 34-35, 49-50, 62-63), on the "basis of their real 24 or perceived disabilities," specifically, "their ability to see color" (see Compl. ¶ 5).1 In that 25 regard, according to plaintiffs, Union Pacific "subjects employees" who have "certain — 26 — 1 Donahue was removed from service in May 2017 (see Compl. ¶¶ 34-35), — 27 — Campbell was removed from service in May 2018 (see Compl. ¶ 50), and Goss was 1 health conditions" to "evaluations [that] do not assess whether an employee is capable of 2 safely or effectively performing their work." (See Compl. ¶ 1.) Plaintiffs also allege that 3 Union Pacific, after removing them from service, failed to provide them with "reasonable 4 accommodations." (See Compl. ¶¶ 42, 55, 65.) Based on the above, plaintiffs assert 5 three causes of action, each alleging a violation of the Americans with Disabilities Act 6 ("ADA") and titled, respectively, "Disability Discrimination – Disparate Treatment" (Count 7 I), "Disability Discrimination – Disparate Impact" (Count II), and "Failure to 8 Accommodate" (Count III). 9 By the instant motion, Union Pacific seeks judgment on the pleadings as to Count 10 III only, and, in support thereof, states none of the plaintiffs exhausted his administrative 11 remedies within the applicable limitations period. In response, plaintiffs do not contend 12 they exhausted within the statutory period. Rather, plaintiffs contend, they are entitled to 13 equitable tolling during the pendency of the class claims in Harris v. Union Pacific 14 Railroad Company (hereinafter, "Harris"), an action in which they were putative class 15 members. With respect to Count III, as set forth below, the Court is not persuaded. 16 The filing of a class action complaint tolls, until "denial of class certification," the 17 running of the statute of limitations for all claims alleged therein on behalf of the putative 18 class members. See Crown, Cork & Steel Co. v. Parker, 462 U.S. 345, 350, 353 (1983). 19 Such tolling is deemed "fair" because the filing of the class action complaint gives 20 defendants "notice of the substantive claims being brought against them." See Williams 21 v. Boeing Co., 517 F.3d 1120, 1136 (9th Cir. 2008) (internal quotation and citation 22 omitted). The tolling rule is limited, however; it "does not leave a plaintiff free to raise 23 different or peripheral claims following denial of class status." See id. (internal quotation, 24 alteration and citation omitted) (holding claim alleging "compensation discrimination" not 25 tolled by class action complaint asserting claims for "promotion discrimination, hostile 26 work environment, and retaliation"). In other words, tolling is "limited to claims filed in a 27 later action that are the same as those pleaded in the putative class action." See Zarecor 1 of Los Angeles, 754 F.2d 1485, 1489 (9th Cir. 1985) (holding plaintiff's "individual 2 discrimination" claim tolled during pendency of class action in which "same allegations" of 3 discrimination were made on behalf of putative class members). 4 In Harris, the named plaintiffs asserted, on behalf of the class, claims that Union 5 Pacific's "Fitness-for-Duty program" violated the ADA, both under a "disparate treatment" 6 theory (see Defs.' Req. for Judicial Notice Ex. A ¶¶ 136-44 (Count I))2 and a "disparate 7 impact" theory (see id. Ex. A ¶¶ 144-53 (Count II)), based on allegations that Union 8 Pacific "subjected . . . employees" who had "specified health conditions" to "evaluations 9 [that] do not in fact assess whether an employee is fit for duty" (see id. Ex. A ¶ 1). Those 10 class claims essentially correspond to Counts I and II as alleged in the instant action, 11 and, indeed, Union Pacific does not argue plaintiffs are not entitled to equitable tolling as 12 to Counts I and II. 13 As Union Pacific points out, however, a failure to accommodate claim was not 14 asserted in Harris on behalf of the putative class members, and, although a subsequent 15 individual action need not be "identical in every respect to the class suit for the statute to 16 be tolled" (see Pls.' Opp. at 2:10-12 (citing Tosti, 754 F.2d at 1489 )), the class and 17 subsequent individual claims must share the "same" factual basis, see Tosti, 754 F.2d at 18 1489. 19 Here, plaintiffs argue, there is a "substantial factual and legal overlap" between the 20 class claims challenging the Fitness-for-Duty program and their individual claim alleging a 21 failure to accommodate. (See Pls.' Opp. at 7:24-25.) The elements of disparate 22 treatment/disparate impact claims and the elements of a failure to accommodate claim, 23 however, are significantly different, and, consistent therewith, the core facts on which the 24 Harris class claims and the instant failure to accommodate claim are based differ — 25 — — 26 — 2 Union Pacific's unopposed request for judicial notice of the operative complaint in Harris is hereby GRANTED. See Rosales–Martinez v. Palmer, 753 F.3d 890, 894 (9th — 27 — Cir. 2014) (holding courts "may take judicial notice of judicial proceedings in other 1 significantly as well. In particular, in addition to differences in the applicable law, 2 compare, e.g., Manual of Model Jury Instructions for the District Courts of the Ninth 3 Circuit, Instruction 12.1A, Instruction 12.1C, and Instruction 11.43 with Instruction 12.7, 4 plaintiffs' failure to accommodate claim is based on events allegedly arising after 5 plaintiffs' removal from service (see Compl. ¶¶ 39-41, 54; see also proposed First 6 Amended Compl. ¶¶ 39-43, 56, 66, 68), i.e., after the events giving rise to the claims 7 alleged on behalf of the class in Harris.4 8 Under such circumstances, the Court finds the Harris action did not give Union 9 Pacific "fair notice" of plaintiffs' failure to accommodate claim, see Williams, 517 F.3d at 10 1131, and, consequently, such claim is time-barred. See Krehbiel v. Union Pacific 11 Railroad Co., 2019 WL 3387049 , at *4 (D. Kan. July 26, 2019) (holding failure to 12 accommodate claim not tolled by pendency of Harris class action; noting named plaintiffs 13 in Harris did "not assert a failure to accommodate claim" on behalf of class); see also, 14 e.g., Aguilar v. Ocwen Loan Servicing, LLC, 2018 WL 949225 , at *6 (N.D. Tex. February 15 20, 2018) (finding plaintiffs not entitled to tolling where claims alleged in subsequent 16 lawsuit "require[d] the plaintiffs to prove . . . wrongful conduct different from what [class 17 claim] require[d]"). 18 Lastly, in light of such finding, plaintiffs' motion for leave to amend, by which 19 plaintiffs seek such relief for the sole purpose of adding factual allegations pertaining to 20 their failure to accommodate claim, will be denied as futile. See Platt Electrical Supply, 21 Inc. v. Eoff Electrical Inc., 522 F.3d 1049, 1060 (9th Cir. 2008) (holding leave to amend 22 properly denied as futile where proposed amended complaint would be "barred by the — 23 — 3 Although the Ninth Circuit does not have a model instruction for a disparate — 24 — impact claim specific to the ADA, the above-cited instruction can readily be modified for use with an ADA discrimination claim. — 25 — 4 In apparent recognition of the differences between the class claims and a failure — 26 — to accommodate claim, the named plaintiffs in Harris asserted a failure to accommodate claim under the ADA only on their own behalf (see Def.'s Req. for Judicial Notice Ex. A — 27 — ¶¶ 159-63), and based only on facts specific to each of those individuals (see id. Ex. A 1 statute of limitations"). 2 CONCLUSION 3 For the reasons stated above: 4 1. Union Pacific's motion for partial judgment on the pleadings is GRANTED, and 5 || Count lll is hereby DISMISSED. 6 2. Plaintiffs' motion for leave to amend is hereby DENIED. 7 IT IS SO ORDERED. — 8 — 9 || Dated: June 16, 2021 . INE M. CHESNEY 10 United States District Judge — 11 — — 12 — — 13 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —