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Mlsna v. Union Pacific Railroad Co.

United States District Court, W.D. Wisconsin

May 15, 2019

MARK MLSNA, Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY, District Judge.

         Plaintiff Mark Mlsna claims that defendant Union Pacific Railroad Company violated the Americans with Disabilities Act in declining to recertify him as a train conductor because of his hearing impairment. Defendant has moved for summary judgment (dkt. #50), arguing generally that Mlsna was not a “qualified individual” because he could not simultaneously meet Federal Railroad Administration hearing acuity standards while wearing required hearing protection. Because plaintiff failed to marshal enough evidence for a reasonable jury to conclude that he could fulfill the essential functions of the train conductor position with a reasonable accommodation, defendant is entitled to summary judgment.[1] Also before the court are defendant's motion to strike an expert declaration (dkt. #82) and plaintiff's motion for leave to supplement the record to provide a late expert report (dkt. #86). Both of these motions will be denied, albeit for different reasons as set forth below.

         UNDISPUTED FACTS[2]

         A. Background

         Mlsna has a hearing impairment and has worn hearing aids for over 20 years. He began working for Union Pacific as a thru-freight train conductor in 2007. The written job description for this position identified the following essential functions and qualifications: (1) “[f]ollowing safety precautions”; (2) “[m]onitoring, observing, interpreting, and relaying signals and placards to gather and communicate information”; (3) being “abl[e] to recognize sounds and changes in sounds”; (4) “[c]ommunicating clearly with co-workers and train dispatchers via radio”; (5) “[a]ttending to and understanding key pieces of spoken information”; and (6) “Safety Orientation: [t]he willingness to practice safe work habits.” (Train Crew Job Description (dkt. #57-1) 2-3.) In describing work conditions, the job description also notes that a conductor “[m]ust wear personal protective equipment such as safety glasses, safety boots, hard hats, and hearing protection where the company requires, ” as well as “[e]nsure compliance with all railroad rules and regulations for safety, operations and Federal Railroad Administration (FRA).” (Train Crew Job Description (dkt. #57-1) 5.) As reflected by this job description, conductors rely heavily on communications from other crew members and dispatchers, including warning sounds and alerts conveying potential hazards. (Jennings Decl. (dkt. #59) ¶ 3.) Moreover, Mlsna agrees that the train conductor position is “safety-sensitive, ” such that an individual's inability to meet the position requirements could pose a threat to people's safety. (Mlsna Dep. (dkt. #27) 17:23-18:12.)

         B. Hearing Acuity Standards & Hearing Conservation Policy

         In January 2012, the FRA promulgated new regulations, which require railroads, including Union Pacific, to certify that its conductors met specific, minimum hearing acuity standards. In particular, the regulations required conductors to pass a hearing test demonstrating that they “do[] not have an average hearing loss in the better ear greater than 40 decibels with or without the use of a hearing aid.” 49 C.F.R. §§ 242.117(i), 242.109(a)(2). FRA regulations also require railroad employees to wear hearing protections in two situations: (1) when exposed to sound levels equivalent to an 8-hour time-weighted average (“TWA”) of 90 decibels or greater; or (2) when exposed to sound levels of 85 decibels or greater if the employee has not yet had a baseline audiogram or experiences a worsening change in hearing sensitivity. 49 C.F.R. § 227.115(c)-(d). Under FRA regulation, hearing protectors must generally attenuate employee exposure to an 8hour TWA of 90 decibels or lower, but for employees who have experienced worsening hearing sensitivity, the hearing protection must attenuate exposure to at most an 8-hour TWA of 85 decibels.

         As required by the FRA, Union Pacific created a Hearing Conservation and Policy Program, which covers employees who “may be subjected to noise exposures equal to or exceeding an 8-hour [TWA] sound level of 85 decibels.” (Hearing Conservation Policy (dkt. #58-1) 1.) Likewise, Union Pacific performs noise monitoring to determine which employees are covered by the policy, including representative sampling.[3] Over a period of approximately 30 years, Union Pacific tested the sound exposure levels for 172 “thru-freight” conductors and 91 “local” conductors, using a noise dosimeter to create a snapshot of exposure levels at different locations.

         This testing revealed that 62 of 172 “thru-freight” conductors were exposed to an 8-hour TWA of 85 decibels or greater, while 22 of 172 were exposed to an 8-hour TWA of over 90 decibels. As to “local” conductors, 29 of 91 were exposed to an 8-hour TWA of 85 decibels or greater, while six were exposed to an 8-hour TWA of over 90 decibels.

         Based on this dosimetry testing, Union Pacific considered all conductors to fall under the Hearing Conservation Policy. (Knight Decl. (dkt. #60) ¶ 8.) Plaintiff notes that Union Pacific did not verify whether his individual essential job functions actually exposed him to an 8-hour TWA of 90 decibels. (Opp'n (dkt. #72) 4-5.)

         Union Pacific's hearing conservation policy also “requires all employees to wear approved hearing protection in identified hearing protection areas, ” which are demarcated by signs. (Hearing Conservation Policy (dkt. #58-1) 1, 3.) This policy directs all employees to wear hearing protection when they are within a 150-foot radius of a locomotive, unless inside the cab with the doors and windows closed. (Id. at 6.) Union Pacific contends that working within 150 feet of a locomotive was central to the position of train conductor, and Mlsna admitted that he worked within a 150-foot radius of a locomotive. (Mlsna Dep. (dkt. #27) 20:8-11, 21:25-22:3.) These additional rules are mandatory for all employees, including those whose regular potential noise exposure is less than the 8-hour TWA of 85 decibels. Indeed, plaintiff alleges in both his complaint and amended complaint that “Train Crewm[e]n work in a noisy environment and are therefore required to wear hearing protection.” (Compl. (dkt. #1) ¶ 14; Amend. Compl. (dkt. #3)

         ¶ 14.)[4]

         There is no dispute that Union Pacific provides its employees with hearing protection under its Hearing Conservation Policy. (Hearing Conservation Policy (dkt. #58-1) 1.) This policy noted that Union Pacific declined to authorize custom molded ear plugs, but instead relied on personal protective equipment approved by the Safety Department.[5] The Safety Department further authorized use of an amplified hearing protection device (“AHPD”), which is an ear-muff style protector with an external microphone and internal speaker that amplifies noise and permits the person to hear sounds, while also blocking harmful levels of sound. In particular, the Safety Department approved the Pro Ears -- Gold device, which prevents sounds greater than 85 decibels from reaching the external ear canal and ear drum. Union Pacific selected this product because of its certified NRR of 30 decibels.[6] (Holland Decl. (dkt. #58) ¶ 11.)

         However, the policy expressly states that “[h]earing aids are not approved UPRR Hearing Protection Devices (HPDs) and are not effective for this purpose.” (Hearing Conservation Policy (dkt. #58-1) 1.) Likewise, Union Pacific does not permit employees to wear hearing aids under hearing protectors or AHPDs because the combination: (1) is not tested or approved; (2) lacks a laboratory-determined NRR; and (3) may result in harmful noise exposure from excessive environmental noise. (Holland Decl. (dkt. #58) ¶ 17; Jan. 16, 2015 Letter (dkt. #53-4) 1.)

         C. Mlsna's Failed Hearing Certification & Proposed Accommodations

         The 2012 FRA regulations “grandfathered in” then-current conductors for thirty-six months, so Mlsna did not have to complete his hearing certification until February 2015. He first underwent the required testing on December 18, 2014, during which his hearing was tested under four circumstances: (1) unaided; (2) with hearing aids; (3) with an AHPD, but with the amplification turned off; and (4) with an AHPD and the amplification turned all the way up. (See Hearing Test Results (dkt. #53-3) 1.) Mlsna only met the minimum FRA hearing criteria when tested with his hearing aids and no AHPD. Comparing these results to Mlsna's baseline audiogram revealed no change in hearing sensitivity.

         After receiving these results, Union Pacific arranged for additional testing by an audiologist with Mlsna wearing the Union Pacific-approved APHD. This second round of testing occurred on January 8, 2015. Again, Mlsna's hearing was tested under the same circumstances. (See Jan. 8, 2015 Audiology Notes (dkt. #53-1) 7.) This testing also found that Mlsna only met FRA standards when he was wearing hearing aids without protection. Union Pacific did not know that Mlsna failed to meet minimum hearing criteria until this second round of certification testing. Following that testing, Union Pacific concluded that it could no longer certify Mlsna as a conductor because he could not meet the FRA-imposed hearing requirements while wearing a required AHPD.

         Union Pacific's Health and Medical Services department then (1) informed Mlsna's supervisor that the railroad could not certify Mlsna and (2) asked what reasonable accommodations would permit Mlsna to continue working. Unfortunately, Mlsna's supervisor could not identify a reasonable accommodation permitting Mlsna to continue to safely work as a conductor.

         In March 2015, Mlsna suggested he be allowed to use E.A.R., Inc.'s “Primo” device, a custom-made earplug, as a possible way for him to satisfy the FRA acuity standards, while providing an adequate level of hearing protection. Despite the Hearing Conservation Policy's prohibition on custom molded ear plugs, Union Pacific reviewed the literature regarding the E.A.R. Primo, ultimately rejecting it because the literature did not specify an NRR. (Knight Dep. (dkt. #95) 22:21-23:11.) In response, Mlsna contends that an NRR could apply to a custom device. (Opp'n (dkt. #72) 11-12 (citing Gordon Dep. (dkt. #70) 29:9-31:2.)

         The Industrial Hygiene Department at Union Pacific is responsible for evaluating workplace conditions, developing safety and regulatory compliance programs, providing health and safety training, evaluating employee noise exposure, and identifying appropriate hearing protection devices. In evaluating hearing protection devices, the department does not test the devices and instead relies on their manufacturer-provided NRRs. Without a manufacturer-provided NRR, the department would not approve a device because the department could not be sure of the level of protection.

         Blake Knight, a Union Pacific Industrial Hygiene Manager, reviewed the E.A.R. Primo to confirm that it did not have a manufacturer-provided NRR, and accordingly, that the Industrial Hygiene Department could not determine one.[7] (Knight Decl. (dkt. #60) ¶ 15.) Prior to filing suit, Mlsna never contradicted Union Pacific's conclusion that the E.A.R. Primo lacked an NRR, nor did he undergo audiological testing while using the device to determine whether he met the FRA hearing acuity requirements. Regardless, Mlsna does not dispute that the lack of a manufacturer-provided NRR was the reason that Union Pacific rejected the E.A.R. Primo; rather, he disputes the accuracy of that determination and the reasonableness of the effort undertaken to reach it.[8] (Trangle Suppl. Rpt. (dkt. #81) 4 (“The NRR for the E.A.R. earplug is 31-32 dB and the E.A.R. Sensear earmuffs is NRR of 27 dB per the device representative.”);[9] Knight Dep. (dkt. #95) 22:21-23:15 (testifying that the proposed accommodation was rejected because no NRR was available, but that he only reviewed the provided literature).)

         In rejecting Mlsna's proposed E.A.R. Primo as an accommodation, Union Pacific also advised Mlsna that he could submit other proposed devices for evaluation. However, Mlsna did not propose other accommodations until after litigation was already underway, meaning Union Pacific could only have investigated Mlsna's proposed device.

         In response, Mlsna now points to his experts' opinions that other AHPDs and custom devices could be used to accommodate him, but there is no evidence that Union Pacific was aware of any device in 2015 that would provide sufficient noise amplification and protection to permit Mlsna to meet the FRA requirements. (See Kloss Rpt. (dkt. #76) 1 (opining that “Mr. Mlsna could be safely accommodated with current available technology such that he would comply with the FRA regulations and work as a railroad Conductor, ” identifying five models of earplugs or earmuffs that provide sufficient sound amplification and protection); Kloss Suppl. Rpt. (dkt. #74) ¶ 2 (“There are custom digital hearing protection devices that can provide the 25dB of amplification” including products by Electronic Shooters Protection, which “are custom made hearing protection devices that are similar to hearing aids but can be manufactured with . . . a 25dB . . . that would presumably allow Mr. Mlsna to meet the FRA requirement.”); Trangle Rpt. (dkt. #77) 1 (opining that “Mlsna could easily have been accommodated in his position as a conductor for the railroad” through use of AHPDs); Trangle Suppl. Rpt. (dkt. #81) 2-4 (opining that “[u]se of custom-molded protection for him, like what Mr. Mlsna provided that had been tailored for his use, could have worked” and discussing suitability of the Howard Leight Impact Pro Industrial earmuff and E.A.R. earplug and earmuffs); Trangle 2d Suppl. Rpt. (dkt. #56) 1 (opining that Honeywell's Howard Leight AHPD product “would provide Mr. Mlsna with hearing protection and necessary amplification”); Holland Decl. (dkt. #58) ¶ 21.)

         After Union Pacific declined to recertify Mlsna as a conductor and Mlsna's department was “unable to identify a reasonable accommodation” permitting him to return to work safely, Union Pacific referred him to its Disability Management Department for assistance. (Jan. 30, 2015 Letter (dkt. #57-2) 1.) Specifically, Union Pacific wrote a letter on January 30, 2015, that offered “experienced[, ] certified vocational rehabilitation professionals” to “sit down with [him] and help [him] plan [his] next steps.” (Id.) The letter further advised that if Mlsna did not contact the Disability Management Department within 30 days, then Union Pacific would assume that he did not require assistance. (Id.) The letter also enclosed a document titled, “What are my options now that I am unable to return to my Railroad job?” (Id. at 3-4.) That document explained:

Assistance is available to help you look at your job options both inside the Union Pacific Railroad and outside of the railroad in your local community. . . . Following your call, a member of UPRR[']s Disability Prevention and Management Team ...

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