Brasier v. Union Pacific Railroad Company ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mark Brasier, No. CV-21-00065-TUC-JGZ (MSA) 10 Plaintiffs, ORDER 11 v. 12 Union Pacific Railroad Company, 13 Defendants. 14 15 Pending before the Court is a Report and Recommendation issued by Magistrate 16 Judge Maria S. Aguilera. (Doc. 26.) Magistrate Judge Aguilera recommends that the 17 District Court grant Defendant Union Pacific Railroad Company’s Motion to Dismiss 18 Plaintiff’s failure-to-accommodate claim as time barred by the statute of limitations. 19 Plaintiff filed an Objection, which incorporates the arguments from his response to the 20 motion. (Docs. 27, 18.) Union Pacific responded. (Doc. 30.) 21 After an independent review of the parties’ briefing and the record, the Court will 22 adopt the Report and Recommendation, and grant Union Pacific’s motion to dismiss 23 Plaintiff’s failure-to-accommodate claim. 24 STANDARD OF REVIEW 25 When reviewing a magistrate judge’s R&R, this Court “may accept, reject, or 26 modify, in whole or in part the findings or recommendations made by the magistrate 27 judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge’s 28 findings and recommendations de novo if objection is made, but not otherwise.” United 1 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). 2 District courts are not required to conduct “any review at all . . . of any issue that is not the 3 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 4 636(b)(1); Fed. R. Civ. P. 72. Further, a party is not entitled as of right to de novo review 5 of evidence or arguments which are raised for the first time in an objection to the report 6 and recommendation, and the Court’s decision to consider newly-raised arguments is 7 discretionary. Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002); United States v. Howell, 8 231 F.3d 615, 621-22 (9th Cir. 2000). 9 BACKGROUND 10 In February 2021, Plaintiff Mark Brasier filed this individual action after the class 11 action he was a member of was decertified. See Harris v. Union Pac. R.R., 329 F.R.D. 616 12 (D. Neb. 2019), rev’d, 953 F.3d 1030 (8th Cir. 2020). In the underlying class action, which 13 was filed in February 2016 (Doc. 16-1) 1, six representative Plaintiffs asserted, on behalf 14 of the class, ADA claims for (1) disparate treatment, (2) disparate impact, and (3) unlawful 15 medical inquiries. (Id. at 21-24.) Although the representative Plaintiffs also brought failure- 16 to-accommodate claims, the class action complaint did not assert such claims on behalf of 17 the class. (Id. at 4-8.) 18 DISCUSSION 19 In this action, Plaintiff brings two of the same claims raised in the class action on 20 behalf of the class, and a failure-to-accommodate claim. (Doc. 13.) Union Pacific does not 21 dispute that the statute of limitations was tolled pursuant to American Pipe & Construction 22 Co. v. Utah, 414 U.S. 538, 554 (1974), for the two claims raised on behalf of the class in 23 the class action. Union Pacific argues, however, that tolling does not apply to Plaintiff’s 24 failure-to-accommodate claim because the class action complaint did not give Union 25 26 1 The Court will grant Union Pacific’s request for the Court to take judicial notice of the class-action Harris Complaint filed at Doc. 16-1. See ASARCO, LLC v. Union Pac. 27 R.R., 765 F.3d 999, 1008 n.2 (9th Cir. 2014) (noting that filings in other courts are “properly subject to judicial notice and thus may be considered on a Rule 12(b)(6) motion 28 to dismiss”). 1 Pacific fair notice of that claim.2 (Doc. 19 at 5-6.) 2 For tolling to apply, the class action complaint must give notice to the “defendants 3 . . . of the substantive claims.” American Pipe, 414 U.S. at 555. A defendant will have fair 4 notice of a claim if (1) the claim was pleaded as a cause of action in the class complaint, 5 or (2) the factual allegations in the class complaint state a claim (even though the claim 6 was not explicitly pleaded as a cause of action). See Williams v. Boeing Co., F.3d 1120, 7 1131 (9th Cir. 2008) (looking to class complaint allegations to determine whether 8 defendants had fair notice of claim not pleaded); see also Fontana v. Haskin, 262 F.3d 871, 9 877 (9th Cir. 2001) (“Specific legal theories need not be pleaded so long as factual 10 averments show that the claimant may be entitled to some relief.”). The tolling rule “should 11 not be read . . . as leaving a plaintiff free to raise different or peripheral claims following 12 denial of class status.” Crown, 462 U.S. at 354-55 (concurring opinion). 13 The Magistrate Judge concluded that while the class complaint raised Union 14 Pacific’s failure to accommodate as an issue, it clearly limited that issue to the six named 15 plaintiffs. The complaint did not, on behalf of the entire class or for each individual putative 16 class member, raise a failure-to-accommodate claim or include factual allegations that 17 would establish such a claim. The Magistrate Judge thus concluded that Union Pacific did 18 not receive fair notice that Plaintiff’s claim of failure-to-accommodate was within the 19 subject matter of the class litigation and that American Pipe did not toll the statute of 20 2 Although American Pipe concerned tolling of the statute of limitations, the Magistrate Judge concluded that class-action tolling also applies to toll the EEOC charge 21 filing period, which is the deadline at issue in this case. (Doc. 26 at 4 (citing Griffin v. Singletary, 17 F.3d 356, 360-61 (11th Cir. 1994))). The Magistrate Judge further found that 22 the parties implicitly agreed with that conclusion. Union Pacific does not object to this portion of the R&R. In this order, the Court will refer to the deadline for filing an EEOC 23 charge as the statute of limitations, unless otherwise stated. Applying America Pipe here, Plaintiff’s failure-to-accommodate claim would be 24 timely. Plaintiff was required to file a charge of discrimination with the EEOC within 300 days from Union Pacific’s allegedly discriminatory act. See Rush-Shaw v. USF Reddaway, 25 Inc., 2013 WL 3455723, at *3 (D. Ariz. July 9, 2013). Plaintiff alleges that Union Pacific failed to accommodate his disability on September 21, 2016. (Doc. 13 at 7.) Because the 26 class action was pending at that time, the filing time was tolled until March 2020, when the class was decertified. See Tosti v. City of Los Angeles, 754 F.2d 1485, 1488 (9th Cir. 1985) 27 (noting that the statute of limitations is suspended from commencement of class action and until certification is denied). Plaintiff filed his claim with the EEOC on April 10, 2020. 28 (Doc. 13 at 7.) Thus, if American Pipe tolling is applicable, Plaintiff’s claim would not be time barred. 1 limitations for the failure-to-accommodate claim. See American Pipe, 414 U.S. at 555 2 (noting that a class complaint must notify the defendant of the “subject matter and size of 3 the prospective litigation”). Magistrate Judge Aguilera thoroughly analyzed the class 4 complaint and fully explained her reasoning in the Report. 5 The Court agrees with Magistrate Judge Aguilera’s conclusion, and similarly 6 concludes that the class complaint neither alleged a failure-to-accommodate claim as a 7 cause of action on behalf of the entire class, nor alleged facts sufficient to establish such a 8 claim. Although the class complaint alleged that Union Pacific imposed restrictions on the 9 class and failed to accommodate the members, the class complaint failed to allege an 10 essential element of a failure-to-accommodate claim—that reasonable accommodations 11 were available. (See Doc. 28 at 4 (parties’ Rule 26(f) Report citing Snapp v. United 12 Transportation Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (stating elements to establish 13 a failure-to-accommodate claim))). Finally, the Court notes that every other district court 14 presented with this issue has similarly concluded that the class complaint did not give fair 15 notice of a failure-to-accommodate claim by putative class members like Plaintiff. See 16 DeFries v. Union Pac. R.R. Co., 2021 WL 3007254 (D. Or. July 15, 2021); Krehbiel v. 17 Union Pac. R.R. Co., 2019 WL 3387049 (D. Kan. July 26, 2019); Blankinship v. Union 18 Pac. R.R. Co., 2021 WL 3290453 (D. Ariz. Aug. 2, 2021); Donahue v. Union Pac. R.R. 19 Co., 2021 WL 2458351 (N.D. Cal. June 16, 2021); Carrillo v. Union Pac. R.R. Co., 2021 20 WL 3023407 (W.D. Tex. July 16, 2021). 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 CONCLUSION 2 For the foregoing reasons, 3 IT IS ORDERED that the Report and Recommendation (Doc. 26) is ADOPTED. 4 IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Doc. 15) is 5|| GRANTED. 6 IT IS FURTHER ORDERED that Plaintiff's Failure-to-Accommodate Claim is DISMISSED. 8 Dated this 24th day of November, 2021. 9 10 □ ll pote Soipe 1 ; Honorable Jennife ve Zipps United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-