Taylor v. Burlington Northern Railroad Holdings, Inc.

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

CASEY TAYLOR, et al., CASE NO. C11-1289JLR Plaintiffs, ORDER DENYING MOTIONS v. FOR SUMMARY JUDGMENT BNSF RAILWAY COMPANY, Defendant.

This matter comes before the court on remand from the Ninth Circuit Court of Appeals. See Taylor v. Burlington N. R.R. Holdings Inc., 801 F. App’x 477 (9th Cir. 2020); (Mandate of USCA (Dkt. # 88).) Before the court are: (1) a motion for summary judgment on liability filed by Plaintiffs Casey and Angelina Taylor (Pl. MSJ (Dkt. # 95); Pl. Reply (Dkt. # 101)); (2) a motion for summary judgment filed by Defendant BNSF Railway Company (“BNSF”) (Def. MSJ (Dkt. # 99); Def. Reply (Dkt. # 108); and (3) a motion to exclude the testimony of Plaintiffs’ expert Dr. Mark V. Roehling filed by BNSF (MTE (Dkt. # 103).) Each party opposes the motion for summary judgment brought by the other. (See Pl. MSJ Resp. (Dkt. # 97); Def. MSJ Resp. (Dkt. # 105).) The

court has considered the parties’ submissions in favor of and in opposition to the motions, the relevant portions of the record, and the applicable law. Being fully advised,1 the court DENIES the Taylors’ motion for summary judgment on liability, DENIES BNSF’s motion for summary judgment, and DENIES as moot BNSF’s motion to exclude Dr. Roehling as an expert.

A. Factual Background On June 27, 2007, Mr. Taylor applied to work for BNSF in the position of Electronic Technician. (Pierce Decl. (Dkt. # 30) ¶ 2, Ex. A (“Application”) at 1.) Mr. Taylor was then nearing the end of a five-year term of service in the United States Marine Corps, where he worked as an avionics technician. (See id. at 2-3 (stating the ending date

of Mr. Taylor’s service as September 2007); Stephens Decl. (Dkt. # 32) ¶ 2, Ex. 1 (“Taylor Dep.”) at 10:13-15, 12:7-11, 15:8-12 (noting that Mr. Taylor received an honorable discharge),2 19:19-20:2.) He listed his Marine Corps service as his most recent work experience. (Application at 2.) On October 29, 2007, BNSF extended a conditional

1 No party requests oral argument (Pl. MSJ at 1; Pl. MSJ Resp. at 1; Def. MSJ at 1; Def. MSJ Resp. at 1; MTE at 1; MTE Resp. (Dkt. # 110) at 1), and the court concludes that oral argument would not be helpful to its disposition of the motions, see Local Rules W.D. Wash. LCR 7(b)(4).

2 The application to work at BNSF asked whether Mr. Taylor had been dishonorably discharged. (Application at 3.) Mr. Taylor responded in the negative. (Id.) job offer to Mr. Taylor for the Electronic Technician position. (Taylor Dep. at 22:17-21; Pierce Decl. ¶ 5, Ex. D (“Cond. Offer”).)

In view of safety considerations associated with the position, BNSF conditioned Mr. Taylor’s offer in part on a successful medical screening. (See Cond. Offer at 1 (“[T]his offer is contingent on the favorable outcome of a pre-employment background screening, consisting of the following: physical examination . . . and our receipt and review of a completed BNSF medical history questionnaire. Failure of any portion of our background screening will result in this conditional offer being rescinded.”).)3 On

October 29, 2007, Mr. Taylor submitted a completed medical questionnaire to Comprehensive Health Services (“CHS”), BNSF’s outside medical contractor. (Pierce Decl. ¶ 6, Ex. E (“Med. Questionnaire”) at 2-8; see also Stephens Decl. ¶ 4, Ex. 3 (“1st Jarrard Dep.”) at 29:12-14; Cond. Offer at 1.) He listed his height as 5’7” and his weight as 250 pounds. (Med. Questionnaire at 2.) He disclosed that he experienced back pain

and had been diagnosed with or treated for bursitis in his knee as a result of Marine Corps physical training. (Id. at 5; see also id. at 3 (“Did you contract any illness or were you injured during military service, and as a result, you intend to apply for a Veteran’s Administration Disability Rating? Yes. . . . Ringing in ears, back pain, knee pain, foot pain, TMJ.”).) Otherwise, he answered most questions on the questionnaire in the

negative and described his health as, in general, “Excellent.” (Id. at 7.)

3 The conditional offer required Mr. Taylor to complete this process within 30 days or by the date “this position is to begin work – whichever is sooner.” (Cond. Offer at 1.) Mr. Taylor was to begin work on November 26, 2007. (Stephens Decl. ¶ 20, Ex. 19.) On November 2, 2007, Eileen Henderson of CHS spoke to Mr. Taylor about his medical information. (See Stephens Decl. ¶ 13, Ex. 12 (“Clinical Notes”).) She

confirmed his self-reported height and weight and gathered additional information about his back and knee issues. (Id.) Mr. Taylor reported to Ms. Henderson that he had no current problems with his back or knees, and Ms. Henderson requested Mr. Taylor’s medical records. (See id. (requesting records regarding Mr. Taylor’s back and knees); Pierce Decl. ¶ 8, Ex. G (“Henderson Emails”); Taylor Dep. at 27:19-22 (“As I recall, she was actually just wanting everything that I had in my military record.”).) On November

6, 2007, Mr. Taylor contacted Ms. Henderson again to let her know that he was requesting his medical records from the Veterans Administration (“VA”) but was unsure how long he would have to wait. (See Henderson Emails at 1; Taylor Dep. at 27:19-28:2, 28:16-29:5.) Mr. Taylor underwent a medical examination with CHS on November 5, 2007.

(See Stephens Decl. ¶ 20, Ex. 19 (“Physician Opinion”); see also id. ¶ 14, Ex. 13 (“IPCS Results”); id. ¶ 15, Ex. 14 (“Vision Eval.”); Clinical Notes.) He passed a physical capacities (“IPCS”) test4 that indicated he had adequate shoulder and knee strength. (See IPCS Results; 1st Jarrard Dep. at 32:18-33:10.) A blood pressure test revealed normal results. (See Vision Eval.; 1st Jarrard Dep. at 75:8-24.) His height and weight

measurements changed slightly from the self-reported values, however, resulting in a body mass index (“BMI”) that increased from 39.2 to 41.3. (See Pierce Decl. ¶ 7, Ex. F

4 This test takes its name from the company that invented it—Industrial Physical Capacity Solutions. (See 1st Jarrard Dep. at 10:22-11:3.) (“Referral”) (listing Mr. Taylor’s measured height as 5’6” and measured weight at 256 pounds).) Because of his elevated BMI, CHS referred his medical examination results to

BNSF’s medical department. (See id.; 1st Jarrard Dep. at 40:9-14; Clinical Notes at 1 (“exam cleared . . . exam bmi 41.3 . . . pending MRs, will defer to BNSF Medical for review” (omissions in original)).) CHS’s referral also noted that Mr. Taylor’s medical records were not currently available. (See Referral at 1.) BNSF medical officer Dr. Michael Jarrard reviewed Mr. Taylor’s file on November 7, 2007. (See 1st Jarrard Dep. at 31:11; Pierce Decl. ¶ 10, Ex. I (“Jarrard

Email”).) That afternoon he sent an internal email containing the text of a letter that would be sent to Mr. Taylor the next day. (See Jarrard Email; Pierce Decl. ¶ 9, Ex. H (“11/8 Letter”).) The letter informed Mr. Taylor that BNSF was “unable to determine medical qualification . . . due to significant health and safety risks associated with extreme obesity ([BMI] near or above 40) and uncertain status of knees and back.” (11/8

Letter; see also Jarrard Email.) The letter further explained that Mr. Taylor could “permit further evaluation” of his “health status and risks” by submitting (1) a sleep study, (2) a medical report from a doctor documenting various “cardiac risk factors,” including fasting lipid profile and fasting blood sugar level, (3) an exercise tolerance test, (4) hip and waist measurements performed by a physician’s office or athletic facility, and (5) the

complete VA disability determination once it became available. (11/8 Letter; see also Jarrard Email.) Alternatively, Mr. Taylor could be considered for the job if he lost 10% of his weight and maintained that weight loss for at least six months. (11/8 Letter; see also Jarrard Email.) BNSF did not offer to pay for any of the listed tests, and Mr. Taylor could not afford them. (See 11/8 Letter; Stephens Decl. ¶ 5, Ex. 4 (“2d Jarrard Dep.”) at 31:24-32:17; Taylor Dep. at 35:14-36:4, 37:15-24.)

Dr. Jarrard testified that he wanted this information because Electronic Technician is a safety-sensitive position. (See 2d Jarrard Dep. at 29:13-30:22; see also id. at 23:11-25.) According to Dr. Jarrard, a high BMI is a risk factor for certain health conditions, such as sleep apnea, that could create safety risks if they developed in a person holding such a position. (See 1st Jarrard Dep. at 46:19-47:3, 49:2-50:1; 2d Jarrard Dep. at 23:11-25, 29:13-30:22, 59:16-60:24.) Dr. Jarrard did not believe that Mr. Taylor

had such conditions, only that he was prone to developing them. (See 1st Jarrard Dep. at 49:2-17, 86:4-25; 2d Jarrard Dep. at 30:7-22, 44:14-45:4, 59:16-60:24.) Mr. Taylor was not hired for the Electronic Technician position, and on February 8, 2008, he filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). (Stephens Decl. ¶ 26, Ex. 25 (“EEOC Charge”).) On March 27,

2008, BNSF responded to that charge in a letter to the EEOC. (Stephens Decl. ¶ 29, Ex. 28 (“Resp. to EEOC”).) BNSF denied discriminating against Mr. Taylor and explained to the EEOC that: Mr. Taylor’s conditional offer of employment was rescinded due to evidence of significant risk associated with extreme obesity and uncertain status of knees and back. These conditions posed a safety risk to Mr. Taylor and to others. Therefore, Mr. Taylor’s conditional offer of employment was rescinded. (Id. at 1.) 5 On August 25, 2010, the Taylors filed the present lawsuit in King County Superior Court and BNSF removed it to federal court on August 4, 2011. (See Not. of

Removal (Dkt. # 1).)6 The Taylors initially brought two types of discrimination claims against BNSF. First, they alleged that BNSF discriminated against Mr. Taylor based on BNSF’s perception that he was disabled. (See Compl. at 4-5.)7 The Taylors argued that BNSF perceived Mr. Taylor as disabled due to morbid obesity and knee and back problems. (See id. at 3-4; 1st MSJ Resp. (Dkt. # 31) at 14-15, 17-18.) Second, the Taylors alleged

that BNSF discriminated against Mr. Taylor on the basis of his status as a veteran. (See Compl. at 5; 1st MSJ Resp. at 23-24.) Although federal statutes might cover these types of claims, the Taylors brought their claims under the Washington Law Against Discrimination (“the WLAD”), RCW ch. 49.60. (1st MSJ Resp. at 9 n.70.) B. Initial Ruling and Appeal

BNSF filed its initial motion for summary judgment on December 15, 2015. (1st MSJ. (Dkt. # 29) at 1.) BNSF asked the court to dismiss the Taylors’ disability

5 BNSF now asserts that it did not rescind Mr. Taylor’s offer but rather did not hire Mr. Taylor because he failed to provide requested medical information. (See, e.g., Def. MSJ at 9-11.) 6 BNSF originally removed the case to federal court on September 20, 2010, and it was remanded to state court on June 6, 2011 because it did not involve a federal question and the complaint did not specify the amount of damages sought. (See Not. of Removal at 2.) The case was removed on the basis of diversity jurisdiction after the Taylors filed a statement of damages that exceeded $75,000. (Id.)

7 The court refers to the page numbers at the bottom of the each page in the complaint as included in the notice of removal filed by BNSF. (See Not. of Removal at 7-12.) discrimination claim because, it contended, obesity is not a disability unless caused by a physiological disorder, and BNSF did not perceive Mr. Taylor as having a disability

related to obesity. (See id. at 6-11.) BNSF also argued that the Taylors’ veteran-status discrimination claim should be dismissed because the Taylors lacked evidence linking BNSF’s failure to hire Mr. Taylor to Mr. Taylor’s status as a veteran. (See id. at 16-18.) Initially, the court granted summary judgment in BNSF’s favor on the Taylors’ perceived disability claim related to obesity and veteran status and reserved ruling on the back-and-knee claim. (See 2/17/16 Order (Dkt. # 53) at 19-23.) For the obesity claim,

the court’s ruling was based on its conclusion that in order to perceive Mr. Taylor as having a disability, BNSF had to perceive him as being obese due to a physiological disorder or condition rather than just perceive that he was obese. (See id. at 17-19.) After hearing oral argument, the court also granted BNSF summary judgment on the Taylors’ back-and-knee claim and dismissed the case with prejudice. (See 3/7/16 Order

(Dkt. # 64).) The Taylors appealed the court’s ruling on the obesity and back-and-knee claims. (Not. of Appeal (Dkt. # 67).) On appeal, the Ninth Circuit affirmed the court’s grant of summary judgment on the back-and-knee claim and vacated the grant of summary judgment on the obesity claim. Taylor, 801 F. App’x at 480. Before ruling on the obesity claim, the Ninth Circuit

certified the following question to the Washington State Supreme Court: Under what circumstances, if any, does obesity qualify as an “impairment” under the Washington Law against Discrimination (WLAD), Wash. Rev. Code § 49.60.040?

Taylor v. Burlington N. R.R. Holdings Inc., 904 F.3d 846, 853 (9th Cir. 2018). The Washington Supreme Court answered as follows:

We hold that obesity is always an impairment under the plain language of RCW 49.60.040(7)(c)(i) because the medical evidence shows that it is a “physiological disorder, or condition” that affects many of the listed body systems. Obesity does not have to be caused by a separate physiological disorder or condition because obesity itself is a physiological disorder or condition under the statute. Taylor v. Burlington N. R.R. Holdings, Inc., 444 P.3d 606, 609 (Wash. 2019). Based on this answer, the Ninth Circuit ruled that a reasonable jury could find that BNSF perceived Mr. Taylor as having a disability (obesity); that he was nevertheless able to perform the essential functions of the job; and that BNSF’s perception of his disability was a substantial factor in its decision to deny him employment. Taylor, 801 F. App’x at 480. In reaching this conclusion, the Court held that the Taylors’ claim—based on allegations that BNSF withdrew a conditional offer of employment because of a prospective employee’s failure to pay for medical testing that the employer requested because of a perceived disability or impairment—presented a valid legal theory under the WLAD. Id. at 479 (citing EEOC v. BNSF Railway Co., 902 F.3d 916, 924-27 (9th Cir. 2018)). It also noted that BNSF did not dispute that Mr. Taylor could perform the essential functions of the job “in these proceedings.” Id. Based on these conclusions, the Ninth Circuit vacated this court’s grant of summary judgment on the obesity claim and remanded. Id. at 480. C. Post-Remand Procedural Background On remand, the court set a new trial date of November 1, 2021, and a new

dispositive motions deadline of August 3, 2021. (Sched. Order (Dkt. # 94).) On July 1, 2021, the Taylors filed a motion for summary judgment as to liability on the obesity claim. (Pl. MSJ.) On July 22, 2021, BNSF filed its own motion for summary judgment on the obesity claim. (Def. MSJ.) A. Motions for Summary Judgment

1. Legal Standard Summary judgment is appropriate if the evidence shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). A fact is “material” if it might affect the

outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49). The moving party bears the initial burden of showing there is no genuine issue of

material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can show the absence of a dispute of material fact in two ways: (1) by producing evidence negating an essential element of the nonmoving party’s case, or (2) by showing that the nonmoving party lacks evidence of an essential element of its claim or defense. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving

party will bear the burden of persuasion at trial, it must establish a prima facie showing in support of its position on that issue. UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994). That is, the moving party must present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue. Id. at 1473. If the moving party meets its burden of production, the burden then shifts to the nonmoving party to identify specific facts from which a fact finder could reasonably find in the nonmoving

party’s favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 252. The court is “required to view the facts and draw reasonable inferences in the light most favorable to the [non-moving] party.” Scott v. Harris, 550 U.S. 372, 378 (2007). The court may not weigh evidence or make credibility determinations in analyzing a motion for summary judgment because these are “jury functions, not those of a judge.”

Anderson, 477 U.S. at 249-50. Nevertheless, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott, 550 U.S. at 380 (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586-87 (1986)). 2. The Taylors’ Motion for Summary Judgment The Taylors move for summary judgment on liability on their WLAD obesity claim, arguing that BNSF violated the WLAD when it (1) extended a conditional employment offer to Mr. Taylor; (2) diagnosed him with morbid obesity; (3) ordered him to obtain and pay for a sleep study that other applicants were not required to obtain; and

(4) rescinded his conditional offer of employment when he could not afford that additional medical testing. (Pl. MSJ at 1-2.) BNSF first argues that the court should not consider the merits of the Taylors’ motion because it is barred by the mandate rule. (Pl. MSJ Resp. at 10 (citing Visciotti v. Martel, 862 F.3d 749, 763 (9th Cir. 2016).)8 According to BNSF, because the Taylors asked the Ninth Circuit in their supplemental briefing to affirmatively find that BNSF

discriminated against Mr. Taylor and the Ninth Circuit found that “a reasonable jury could find” that BNSF perceived Mr. Taylor as obese, this court is precluded from ruling in the Taylors’ favor on this issue. (Id. (citing Taylor, 801 F. App’x at 479).) Nonsense. In Visciotti, the Ninth Circuit discussed the law of the case doctrine, whereby “on remand a lower court is bound to follow the appellate court’s decision as to issues

decided explicitly or by necessary implication.” 862 F.3d at 763. But here, the Ninth Circuit did not explicitly decide that the record was insufficient to support a grant of summary judgment in the Taylors’ favor. See generally Taylor, 801 F. App’x 477. Nor does Ninth Circuit’s decision to ignore the Taylors’ supplemental request that the Court

8 BNSF appears to conflate the mandate rule with the law of the case doctrine. (Compare Pl. MSJ Resp. at 10) (treating the concepts as identical), with United States v. Garcia-Beltran, 443 F.3d 1126, 1129 (9th Cir. 2006) (explaining the distinct doctrines).) Because BNSF cites caselaw and makes arguments rooted in the law of the case doctrine, the court analyzes its argument under that framework. (Pl. MSJ Resp. at 10.) Regardless, the Ninth Circuit did not mandate that this court reject a summary judgment motion brought by the Taylors based on the factual record of this case. See generally Taylor, 801 F. App’x 477. affirmatively find in their favor, rather than just vacate and remand, “necessarily imply” that the Court decided the issue. The Ninth Circuit did not even discuss the Taylors’

request that the Court affirmatively rule in their favor. See generally id. Contrary to BNSF’s assertions, this does not imply that the Court was denying a motion for summary judgment that the Taylors had yet to even file. Rather, it implies that the Ninth Circuit was leaving this issue to be decided on remand by the trial court. Accordingly, that is what this court shall do. Turning to the merits, BNSF argues that the Taylors have failed to demonstrate a

lack of genuine dispute as to whether Mr. Taylor was able to perform the essential functions of the job. (Pl. MSJ Resp. at 13-14.) The court agrees. “To prevail on his WLAD claim, [Mr.] Taylor must prove . . . that he was able to perform the essential functions of the job . . . .” (Pl. MSJ at 8 (citing Hill v. BCTI Income Fund-I, 23 P.3d 440, 452 (Wash. 2001).) The Taylors make two arguments in attempting

to satisfy their burden regarding this element of their claim. First, they cite the Ninth Circuit’s statement that BNSF “does not dispute in these proceedings that Mr. Taylor was able to perform the essential functions of the job” to establish this element. (Pl. MSJ at 11 (citing Taylor, 801 F. App’x at 479.) But BNSF’s failure to brief this issue on appeal when it did not undergird this court’s initial ruling cannot properly be viewed as a

concession. (See generally 2/17/16 Order (granting summary judgment to BNSF without discussing essential functions element of WLAD claim).) Thus, the Taylors must demonstrate that there is no genuine dispute of material fact using the evidence in the record. The Taylors’ second argument is based on the evidence that Mr. Taylor cleared BNSF’s medical examination and passed the physical capacities test, demonstrating that

he possessed adequate shoulder and knee strength for the position. (Pl. MSJ at 11 (citing IPCS Results).) But BNSF provides deposition testimony from its medical officer, Dr. Jarrard, who states that Mr. Taylor passing this test does not necessarily mean he could perform the minimum qualifications required by the position. (2d Jarrard Dep. at 32:24-33:10 (“Q. So, in other words, [passing the IPCS test means] he could perform the minimum qualifications required by that position? . . . A. No, that’s not what that

means.”) Dr. Jarrard testified that he asked for medical records and additional information about Mr. Taylor’s history because they could help him assess the risk of recurring problems with Mr. Taylor’s reported knee and back issues. (Id. at 42:9-24; 44:12-24.) Thus, the court is presented with competing evidence as to whether Mr. Taylor has established that he was able to perform the essential functions of the job. The

court may not weigh evidence or make credibility determinations in analyzing a motion for summary judgment because these are “jury functions, not those of a judge.” Anderson, 477 U.S. at 255. The court concludes that a reasonable jury could find that Mr. Taylor was not able to perform the essential functions of the Electronic Technician position. Accordingly, granting summary judgment is not appropriate.

BNSF raises several other arguments regarding the Taylors’ motion for summary judgment. (See Pl. MSJ Resp. at 11-13 (arguing BNSF never rescinded Mr. Taylor’s job offer); 14-18 (arguing the Taylors cannot demonstrate perception of obesity was a substantial factor); 18-21 (arguing existence of bona fide occupational qualification).) But as the court has determined that the Taylors have failed to demonstrate a lack of genuine dispute regarding Mr. Taylor’s ability to perform the essential functions of the

job, it declines to address these arguments at this time.9 3. BNSF’s Motion for Summary Judgment BNSF also moves for summary judgment, arguing that the Taylors’ WLAD claim based on perception of obesity fails as a matter of law. (Def. MSJ at 1.) It contends that summary judgment should be awarded for four reasons: (1) Mr. Taylor cannot demonstrate that BNSF refused to hire Mr. Taylor (id. at 9-11); (2) Mr. Taylor cannot

demonstrate he was qualified for the position (id. at 11-14); (3) BNSF prevails under a defense of bona fide occupational qualification (id. at 14-17); and (4) BNSF prevails under a defense of proper performance (id. at 17-19). The court addresses each in turn. a. Refusal to Hire First, BNSF argues that Mr. Taylor cannot demonstrate that it rescinded his offer

of employment because BNSF only “notified Mr. Taylor that it was ‘unable to determine medical qualification’ without medical information” and then “took no action on the application” after that notification. (Id. at 10 (quoting 11/8 Letter).) According to BNSF, it presented Mr. Taylor with “two options to enable BNSF to further evaluate [Mr.] Taylor’s health status and risks: 1) to provide additional medical information; or 2) for

[Mr.] Taylor to lose weight and maintain that weight loss.” (Id.) Thus, in BNSF’s eyes it did not refuse to hire Mr. Taylor, it just “took no action on the application” after it

9 The court notes, however, that BNSF raises several similar arguments in its own motion for summary judgment, which the court addresses below. See infra § III.A.3. presented him with these two options. (Id.) But BNSF’s reliance on these options is misplaced.

The first option that BNSF provided was for Mr. Taylor to submit additional medical information, including the results of a sleep study that Mr. Taylor could not afford to take. (11/8 Letter; Taylor Dep. at 19:5-20:4.) The second option for Mr. Taylor was to lose 10% of his body weight and maintain that weight loss for six months. (11/8 Letter.) Mr. Taylor had to satisfy one of these two options if he wanted to receive a favorable outcome on his medical examination. (Id.) According to his offer letter, if he

failed to receive a favorable outcome on his medical examination, his offer would be rescinded. (Cond. Offer.) Thus, Mr. Taylor had to comply with one of these two options if he did not want his offer to be rescinded. But the Ninth Circuit has already determined that requiring Mr. Taylor to complete the first option—submission of medical information including a sleep study Mr.

Taylor could not afford—presents a valid claim under the WLAD. The Court held that an employer violates the WLAD “when it withdraws a conditional offer of employment based on a prospective employee’s failure to pay for medical testing that the employer has required solely because of the prospective employee’s perceived disability or impairment.” Taylor, 801 F. App’x at 479 (citing BNSF Railway Company, 902 F.3d at

924-27). The second option—Mr. Taylor losing 10% of his body weight—is, in essence, a requirement that Mr. Taylor eliminate the disability that BNSF perceived Mr. Taylor to have if he wanted to receive employment. See Taylor, 444 P.3d at 609 (holding that obesity is always an impairment under the WLAD). Requiring a prospective employee to meet a condition that violates the WLAD in order for him to fulfill the conditions of his offer is a refusal to hire. See Taylor, 801 F. App’x at 479. Giving the prospective

employee two options that violate the WLAD does not change that. The characterization of BNSF’s actions as a rescission of a job offer is supported by BNSF’s own statements in proceedings before the EEOC, where it argued that “BNSF did not discriminate against Casey Taylor based upon perceived disability when rescinding his conditional offer of employment as an Electronic Technician.” (Resp. to EEOC at 1.) Mr. Taylor also testified in his deposition that a BNSF representative made

clear to him that he had been removed from consideration for the position and that even if he provided information it would go toward perhaps qualifying him for a future opening. (Taylor Dep. at 397-40:3.) Accordingly, examining the evidence in the light most favorable to Mr. Taylor, a reasonable jury could find that BNSF refused to hire Mr. Taylor or rescinded his conditional offer.

b. Ability to Perform Essential Functions BNSF’s second argument is that Mr. Taylor cannot demonstrate that he had the ability to perform the essential functions of the job. (Def. MSJ at 11.) But the Taylors point to ample evidence that could support a jury concluding that Mr. Taylor could perform the essential functions of the job. Mr. Taylor’s physical capacities test

determined that he “[m]eets minimum physical demands of the essential functions of Electronic Technician.” (IPCS Results.) Indeed, the very fact that Mr. Taylor received a conditional offer could support a reasonable jury’s finding that he could perform the essential functions of the job. (See Cond. Offer.) BNSF has presented competing evidence that this test alone does not necessarily mean that Mr. Taylor would be able to perform the essential functions of the job. See supra § III.A.2; (2d Jarrard Dep. at

32:24-33:10.) But rather than support BNSF’s motion for summary judgment, this highlights the existence of a genuine dispute of material fact as to Mr. Taylor’s ability to perform the essential functions of an Electronic Technician. Thus, BNSF’s second argument in favor of summary judgment fails. c. Bona Fide Occupational Qualification BNSF’s third argument is based on the statutory defense of bona fide occupational

qualification. (Def. MSJ at 14-17.) Under the WLAD, an adverse employment action that would otherwise be discriminatory can be justified if the employer can establish that the refusal to hire is based upon a bona fide occupational qualification. RCW 49.60.180(1). To successfully raise the defense, an employer must demonstrate that “all or substantially all” prospective employees who do not possess the qualification would

not be able to efficiently perform the work at issue. Franklin Cty. Sheriff’s Off. v. Sellers, 646 P.2d 113, 117 (Wash. 1982); see also Kries v. WA-SPOK Primary Care, LLC, 362 P.3d 974, 989 (Wash. Ct. App. 2015). BNSF contends that that the bona fide occupational qualification that Mr. Taylor lacks is the successful completion of its medical clearance procedures. (Def. MSJ at 15.)

But viewing the bona fide occupational qualification this abstractly negates the purpose of the WLAD of preventing discrimination against specific impairments. Blanchette v. Spokane County Fired Protection District No. 1 is instructive. 836 P.2d 852 (Wash. Ct. App. 1992). There, a prospective fire fighter was denied employment after the fire district determined he did not meet the required medical standards due to his diagnosis of Crohn’s disease. Id. at 859-60. Rather than examine whether passage of the fire

district’s medical standards was a bona fide occupational qualification, the court examined the underlying reason for the failure: the prospective employee’s condition that caused the failure. Id. at 860-61. The burden on the fire department, then, was to “prove that all or substantially all persons with Crohn’s disease could not properly perform the duties of a fire fighter.” Id. at 861. Here, then, the proper framing of the issue is not whether Mr. Taylor passed BNSF’s medical clearance procedures. It is

whether there is a bona fide occupational qualification such that all or substantially all individuals who have the condition that caused Mr. Taylor fail the medical clearance procedure could not perform the duties of an Electronic Technician. The Ninth Circuit has already determined that a reasonable jury could find that BNSF’s perception of his obesity was a substantial factor in BNSF’s decision to deny Mr. Taylor employment.

Taylor, 801 F. App’x. at 480. Thus, in order to succeed on summary judgment, BNSF must demonstrate that all or substantially all obese individuals could not effectively perform the duties of an Electronic Technician. It cannot. BNSF points to Greene v. Union Pacific Railroad Co. to support the proposition that obesity can preclude a prospective employee from having a bona fide occupational

qualification. 548 F. Supp. 3 (W.D. Wash. 1981). In that case, a railroad company denied the request of an employee to transfer to the position of fireman based on his weight, high blood pressure, and osteoarthritis of the spine. Id. at 5. The court held that obesity was not a disability under Washington law and dismissed the complaint with prejudice. Id. It also noted that even if obesity was a handicap, the height-weight requirements of the railroad company for the firefighter position presented a bona fide

occupational qualification for the category of fireman. Id. This court does not find the 40-year-old dicta in Greene persuasive. Both medical science and Washington disability law have progressed in the past four decades. Health professionals’ understanding of obesity today is different than it was in 1981, and, in part because of that evolution, obesity is recognized as an impairment under the WLAD in all circumstances. See Taylor, 444 P.3d at 609, 612-15 (discussing nature of obesity as an impairment). Further,

even if the height and weight requirements used by the railroad company in Greene did present a bona fide occupational qualification for a railway fire fighter, the court fails to see how that is immediately analogous to the requirements for a railway Electronic Technician. Thus, BNSF must demonstrate based on the evidence in the record that having a BMI under 40 is a bona fide occupational qualification for the role of Electronic

Techician. To this end, BNSF asserts that there are “inherent dangers of working around moving trains, including while carrying heavy equipment.” (Def. MSJ at 16.) It also points to Dr. Jarrard’s testimony that obesity is an “indicator of possible risk of several other health conditions,” primarily sleep apnea and diabetes, and can lead to “a high

probability of a potentially very serious outcome.” (Def. MSJ at 18 (citing 1st Jarrard Dep. at 49:2-50:1; 2d Jarrard Dep. at 59:16-60:20.) But the argument that obesity is such a significant risk factor for other conditions such that obese individuals cannot effectively perform any safety-sensitive position is belied by BNSF’s treatment of incumbent employees. Dr. Jarrard testified that incumbent employees in the same obesity classification as Mr. Taylor were not all required to get medical testing and it was done

on a case-by-case basis. (2d Jarrard Dep. at 24:9-22.) He continued that circumstances that might lead to medical testing for an obese incumbent employee included falling asleep on the job or returning from medical leave for a serious medical condition. (Id. at 25:1-19.) Thus, while BNSF maintains that all or substantially all individuals in Mr. Taylor’s obesity classification cannot effectively perform safety sensitive positions because of the risk of obesity indicating other health conditions, BNSF does not require

all or substantially all obese employees to undergo testing for these possible conditions. This contradiction strongly suggests that BNSF’s own policies do not treat all or substantially all obese employees as being at high risk of conditions that would prevent them from effectively performing safety sensitive positions. At the very least, it creates a material issue of fact as to whether there is a bona fide occupational qualification that Mr.

Taylor lacks. Accordingly, BNSF has not met its burden of demonstrating a bona fide occupational qualification that justifies any adverse employment actions it may have taken against Mr. Taylor. d. Proper Performance BNSF’s fourth argument is that the statutory defense of proper performance

justifies a grant of summary judgment. (Def. MSJ at 17-19.) Like the bona fide occupational qualification defense, the WLAD provides that an otherwise discriminatory act is allowable “if the particular disability prevents the proper performance of the particular worker involved.” RCW 49.60.180(1). Thus, if BNSF can demonstrate that Mr. Taylor’s high BMI prevented him from properly performing the job of Electronic Technician, there can be no liability under the WLAD. See Rose v. Hanna Mining Co.,

616 P.2d 1229, 1231 (Wash. 1980). As BNSF admits, its arguments in favor of proper performance are similar to its arguments in supporting the defense to a bona fide occupation qualification. (Def. MSJ at 17.) They also fail for similar reasons. Just as BNSF has not demonstrated that all or substantially all obese individuals cannot effectively perform the functions of an Electronic Technician, it has not demonstrated that one particular obese individual, Mr.

Taylor, could not perform those functions because of his obesity. BNSF cannot establish the defense of proper performance on summary judgment. Accordingly, having determined that none of BNSF’s arguments in favor of summary judgment are availing, the court DENIES BNSF’s motion. B. Motion to Exclude

BNSF moves to exclude the testimony of the Taylors’ expert, Dr. Mark V. Roehling. (MTE). The Taylors respond that BNSF’s counsel did not consult with them to determine if they still intended to call Dr. Roehling on remand, and that they withdraw Dr. Roehling as an expert witness. (MTE Resp.) Accordingly, the court DENIES the motion to exclude as moot. None of the court’s above analysis of the summary judgment

motions relies on Dr. Roehling’s report or testimony. //

//

// For the foregoing reason the court DENIES Mr. Taylor’s motion for summary

judgment (Dkt. # 95), DENIES BNSF’s motion for summary judgment (Dkt. # 99), and DENIES as moot BNSF’s motion to exclude Dr. Roehling as an expert (Dkt. # 103). Dated this 27th day of August, 2021. A United States District Judge