Nitin Sud of Sud Employment Law/courtesy photo

After working most of his adult life as a trainman for BNSF Railway, all Michael Nall wanted to do was get back to work after he was diagnosed with Parkinson’s disease, a move the company resisted for the better part of six years, even though Nall allegedly passed every physical test his employer required of him.

Nall's federal disability claims were summarily rejected by a U.S. district court, and he died from a sepsis infection unrelated to Parkinson’s last March, three months before Houston attorney Nitin Sud was set to argue Nall’s case before the U.S. Court of Appeals for the Fifth Circuit.

Sud made his case, and just before the New Year, a split Fifth Circuit panel agreed with his argument that Nall had a valid discrimination claim, partially reversing the trial court’s decision dismissing the case.

“In talking to his wife, we wish he was here for this decision. We’re still going to go forward with the trial,” Sud said, noting that Nall’s wife will try to claim six years’ worth of back pay for her husband’s estate. “He won’t get to testify, we’ll just use his deposition. But it’s pretty clear just based on what they just ruled that liability can be established.’’

According to the Fifth Circuit’s decision in Nall v. BNSF Railway, Nall started working for BNSF in 1973 as a trainman and in 2010 he was diagnosed with Parkinson’s. At the time, BNSF provided Nall and his doctor with a medical status form listing the job duties of a trainman, including operating track switches, applying and releasing hand brakes, and monitoring track conditions, and Nall’s neurologist cleared him to continue working.

Nall worked for the next year and a half without incident until 2012, when BNSF placed Nall on medical leave after getting a letter from a co-worker voicing concerns about Nall’s ability to perform his job duties.

Nall was required to obtain a release from BNSF’s medical department before returning to work. BNSF requested the results of physical examination from Nall’s doctor showing his awareness of BSNF’s concerns, and Nall complied, the court said. Nall’s doctor reported that he did not see any evidence of brain damage, and an occupational therapist concluded that Nall was able to meet the demands of his position at BNSF, according to the decision.

BNSF found some statements in the reports “concerning” and kept Nall on leave, the court noted. In addition, BNSF provided Nall with five pages of photographs depicting some of his job duties and asked for his neurologist to review them and return a statement to BNSF regarding Nall’s ability to complete the depicted tasks.

Nall complied, and the neurologist concluded that Nall was able to perform the job duties shown in the photograph and was “in very good condition with balance and concentration in order.” BNSF next requested that Nall perform a field test, including taking instructions via radio and climbing on and off equipment, which Nall completed successfully, according to the decision.

Although not mentioned in the report, two BNSF employees later testified that Nall engaged in conduct that violated two of the company’s most serious safety rules, and BNSF told Nall he could not return to work, according to the decision.

A few months later, Nall filed a discrimination charge with the Equal Employment Opportunity Commission. After an investigation, the EEOC concluded there was a violation of the Americans with Disabilities Act and sent a letter to BNSF disagreeing with the company's assessment that Nall was a potential harm to himself or others and was incapable of doing his job.

Nall and his wife filed a federal disability discrimination and retaliation lawsuit in a Houston U.S. district court. During the litigation, Nall continued trying to return to work, completing a second field test required by BNSF. He also submitted further neurological testing results showing that his condition was essentially unchanged from 2012, but BNSF’s decision remained the same, according to the decision.

The district court later dismissed Nall’s discrimination and retaliation claims, holding that Nall had presented no direct evidence of discrimination, was not qualified for his position as a trainman, and failed to present evidence of pretext, among other things. Nall appealed the decision to the Fifth Circuit.

On appeal, Nall presented several comments by BNSF employees as direct evidence of discrimination, including one by a company field medical manager who allegedly told Nall he was “never coming back to work” and that “they were just sending him paperwork … to—you know, be nice.”

In a split decision, the Fifth Circuit reversed the district’s decision and revived Nall’s disability claim, with the majority noting that BNSF kept trying to “move the goalposts” on what was required of Nall to return to work.

“Additional evidence that suggests that BNSF’s explanation is false or unworthy of credence includes the reports by Nall’s doctors, who concluded that Nall could safely return to work, the 'never coming back to work' and Parkinson’s related statements made by BNSF employees, and the fact that BNSF continued to move the goalposts—to make requests of Nall, even as he completed the previous ones,” wrote Judge Jennifer Walker Elrod.

“As a result, even assuming that BNSF’s alleged safety concerns were legitimate and non-discriminatory, the totality of the circumstances creates a material fact issue as to whether BNSF’s proffered reasons for refusing to reinstate Nall were merely pretextual—that is, that the real reason for BNSF’s adverse employment action was Nall’s disability,” Elrod wrote. “Accordingly, on Nall’s disability claims, we reverse the district court’s judgment."

She noted, "Of course, this holding does not mean that Nall will prevail at trial or that safety was not the real reason for BNSF’s decision. It means only that Nall produced enough evidence to survive summary judgment.”

The Fifth Circuit affirmed the district court’s decision to dismiss Nall’s retaliation claim by concluding he failed to identify a material fact issue supporting that claim.

Judge James Ho dissented from the majority decision, noting that just because a plaintiff’s expert disagrees with the underlying medical judgment that led to the employment decision does not make the decision “objectively unreasonable.”

Judge Gregg Costa filed a concurring decision, noting there was a simpler route the court could have taken to conclude Nall had a valid discrimination claim. “To use a modern phrase, the firing ‘is what it is’: the railroad has all along acknowledged that it fired Nall because of concerns about his Parkinson’s,” Costa wrote. “That’s discrimination on the basis of a disability.”

Sud was pleased with the decision and the fact a majority of the panel agreed with his arguments that BNSF kept moving the goalposts on his client.

“The key part was BNSF kept changing its process. There was no consistency for what they considered good enough and they just made assumptions because he had Parkinson’s,” Sud said. “They already had their decision, and Mr. Nall and his doctors did a lot to make sure his Parkinson’s was under control. But the stereotypes of Parkinson’s was driving this case and BNSF’s analysis.”

Bryan Neal, a Dallas attorney who represents BNSF, did not return a call for comment.