Dennis J. Pickens v. Soo Line Railroad Company, Doing Business as C.P. Rail Systems

HEANEY, Circuit Judge,

dissenting.

After a careful review of the record, I am convinced that this case was properly submitted to the jury. The record reveals that many of the facts as recited by the majority were contested at trial and, indeed, remain disputed on appeal. Given these differing versions of the facts, as set out below, I do not believe that the district court should have substituted its judgment in place of the jury’s. I therefore respectfully dissent.

In evaluating the district court’s decision on a judgment notwithstanding the verdict, we must:

1) consider the evidence in the light most favorable to [Pickens], who prevailed with the jury; 2) assume that all conflicts in the evidence were resolved by the jury in [Pickens’] favor; 3) assume as proved all facts which [Pickens’] evidence tends to prove; 4) give [Pick-ens] the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and 5) affirm the denial of the motion if reasonable persons could differ as to the conclusions to be drawn from it.

Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir.1990)(internal quotation omitted). The majority, however, recites a version of the facts closely mirroring those set forth in Soo Line’s brief, rather than those facts that tend to prove Pickens’ case.

If considered in the light most favorable to Pickens, the record reveals the following facts. Pickens had worked as a railroad conductor for the Soo Line for over 20 years. During that period he never had any safety or disciplinary problems. In 1992, when a train’s brakes malfunctioned, Pickens sustained a back injury.

After the injury, Pickens was off work for three years. In October 1995, Soo Line brought Pickens back as a switch-man, ostensibly because that position would be compatible with his medical restrictions limiting his lifting and working hours. The switchman position, however, required heavy lifting, which caused Pick-ens pain and would have exacerbated his disability. Pickens talked with his doctor regarding a return to the conductor position, which was less physically strenuous than the switchman position. Shortly thereafter, his doctor approved the change to the conductor position, contingent upon Pickens’ ability to tolerate back pain.

Pickens then returned to work as a conductor, and he maintained a fairly consistent work schedule of two to three days a week. When his back flared up, he would “lay off’ from the board, which meant that he was not available for call that day. Conductors at the Soo Line do not typically work a regular schedule. Rather, the “board” system is similar to the staffing at a temporary agency. Even if a conductor is available for service and is marked up on the board, there may not be a train available to run, in which event the conductor would be paid only a reduced rate. If the employee decided to “lay off’ by taking his or her name off the board, the employee would not be called that day. A “lay off’ could be charged as a sick day, personal leave day, or could be taken as time without pay. Indeed, evidence at trial established that Pickens had averaged only between three and four days of work per week before his injury had occurred. Soo Line did not submit any evidence that Pickens’ flexible schedule after his injury created any expense or inconvenience to the company, given the way in which the board system worked.

Pickens maintained this flexible schedule without incident for a number of months. In March 1996, a trial was held on Pickens’ FELA claim stemming from his back injury. Soo Line’s attorney argued to the jury that the damages for the injury should be reduced because:

[The bjottom line is Mr. Pickens is still our employee. He’s working. When this case is over, he’ll still be working, he’ll still be our employee. If he wants to work five days a week, he’s got our okay to work five days a week. If he wants to work two days a week, he’s got our okay to work two days a week.

(Appellant’s Add.). Undoubtedly, this promise of accommodation had an influence on the jury at the FELA trial. Believing that the railroad would work with Pickens to keep him on the job, on a part-time basis if required, the jury would have been influenced to award Pickens less money than if they had known that he would not be granted any accommodations, and, indeed, be fired from his position.

Following the FELA trial, the railroad stopped accommodating his injury. When his back flared up on May 27 and Pickens called in to “lay off,” Soo Line suspended him for fourteen days and required Pick-ens to obtain a health status report from his doctor. Further, at this point, his supervisor harassed Pickens by telling him that “[i]f [he] couldn’t work any more than two to three days a week that [he] shouldn’t have been allowed to return to work and that [he] should quit.” (Tr. Vol. I at 99). After Pickens’ back flared up, and he called in to “lay off’ on August 16, 1996, Soo Line again demanded medical documentation of his condition. For weeks afterward Soo Line did not notify Pickens whether he had been approved to return to duty.

Frustrated at not hearing anything from Soo Line regarding his work status, Pick-ens wrote the letter of September 6, 1996. The majority places a great deal of emphasis on a portion of the letter, stating that the letter appeared threatening and was, therefore, a non-discriminatory reason for Pickens’ termination. When considered in its entirety, however, the letter is susceptible to differing interpretations. Pickens was expressing anger and frustration, but opinions could certainly differ as to whether the contents of the letter constituted a threat. Pickens began the letter by inquiring about his status, stating that his understanding from the FELA trial was that he could work part-time, as necessitated by his back injury. He documented the harassment by his supervisor and expressed his confusion as to why he was being prevented from working. The last part of a letter, where he mentions the disregard of safety “if required” (Appellant’s Add.) also could have a meaning other than the one given to it by the majority. Pickens explained at the trial that he meant that by requiring him to work when his back hurt, the Soo Line could be putting his safety at risk. This interpretation fits with the protests present throughout the rest of the letter. In any event, the letter was introduced into evidence at trial, and the jury was free to draw its own conclusions about its meaning.

There was also evidence that the reasons Soo Line provided for terminating Pickens were pretextual. The first reason Soo Line gave for the termination of Pick-ens was the letter, which has already been discussed, ante. The second reason Soo Line gave was that Pickens had been laying off under false pretenses. At trial there was no evidence that Pickens had ever falsified an injury or that he had been malingering in any way. Rather, the Soo Line superintendent who investigated the situation based his findings on the lack of any record in Pickens’ file documenting an injury (despite the Soo Line’s payment of damages to Pickens for his back injury in the FELA trial).

The facts as I have set them out provide sufficient evidence for the jury to find that Soo Line discriminated against Pickens because of his disability. The jury could have found that Pickens was qualified to perform the essential functions of the job with the accommodations Soo Line had provided prior to the FELA trial. Given the “board” and the “layoff’ system, the jury could have concluded that a flexible schedule was a reasonable accommodation, especially because Soo Line never introduced any evidence that such a schedule would be a financial hardship. As reasonable people could disagree with the facts and whether discrimination had taken place, the case was properly submitted to the jury.