James Blankinship v. Union Pacific Railroad Company

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2024
• Docket: 22-16849
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMES BLANKINSHIP, No. 22-16849

Plaintiff-Appellant, D.C. No. 4:21-cv-00072-RM

v. MEMORANDUM* UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding

Argued and Submitted February 14, 2024 San Francisco, California

Before: S.R. THOMAS, HAMILTON,** and CHRISTEN, Circuit Judges. This appeal is controlled by our opinion issued today in DeFries v. Union

Pacific Railroad Co., __F.4th __, No. 23-35119 (9th Cir. June 14, 2024). Like

plaintiff DeFries, plaintiff-appellant James Blankinship worked as a conductor for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David F. Hamilton, United States Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, sitting by designation. defendant-appellee Union Pacific Railroad Company. After failing Union Pacific’s

routine color-vision testing, Blankinship was routed into Union Pacific’s employee

health screening system, the fitness-for-duty program. While undergoing a fitness-

for-duty evaluation, Blankinship failed Union Pacific’s follow-up color-vision field

test and was diagnosed by Union Pacific’s Chief Medical Officer with a “Color

Vision Deficit” that the company deemed “unable to be accommodated.” As a result,

he was removed from his position, and Union Pacific imposed permanent work

restrictions that barred him from working any position that required the

identification of traffic signals. Blankinship attempted to find other positions within

the company but was unsuccessful, and Union Pacific’s permanent work restrictions

have remained in place.

In DeFries, we detailed the history of the Harris v. Union Pacific Railroad

Co. class action, alleging violations of the Americans with Disabilities Act. In

Harris, the plaintiffs’ operative complaint alleged a class that all parties agree

included color-vision plaintiffs like Blankinship, but later in the litigation, class

counsel moved for class certification on a narrower definition. The district court

certified a class based on that narrower definition, but that certification was later

reversed by the Eighth Circuit. Harris v. Union Pacific Railroad Co., 329 F.R.D.

616, 628 (D. Neb. 2019), rev’d, 953 F.3d 1030, 1032 (8th Cir. 2020). Plaintiff

Blankinship is situated identically to DeFries, except that he suffered adverse

2 employment actions earlier than DeFries, before the certification of the Harris class.

As in DeFries, Blankinship’s individual claims were timely if American Pipe tolling

extended for him until the Eighth Circuit reversed the class certification. See

generally American Pipe & Construction Co. v. Utah, 414 U.S. 538, 552–54 (1974);

Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354 (1983).

This case, DeFries, and Donahue v. Union Pacific Railroad Co., No. 22-

16847, were all argued to this panel on February 14, 2024. In all aspects relevant to

this appeal, Blankinship and the plaintiffs in Donahue are situated identically to the

plaintiff in DeFries. Under our decision in DeFries, plaintiff Blankinship was

entitled to rely on American Pipe tolling until the Eighth Circuit issued its mandate

decertifying the Harris class. We REVERSE summary judgment in favor of Union

Pacific and REMAND for further proceedings consistent with this order, without

reaching the alternative grounds for summary judgment that the district court did not

reach.