Labor & Employment Law Daily Wrap Up, CLASS ACTIONS—8th Cir.: Conductor gets late-filed ADA claims reinstated based on tolling, (Jun 13, 2025)

By Marjorie Johnson, J.D.

Because the conductor was not unambiguously excluded from the certified class, he was entitled to American Pipetolling, and his suit was timely.

The Eighth Circuit reversed a district court’s dismissal of a former Union Pacific railroad conductor’s ADA lawsuit as untimely since, after his case was dismissed, the appeals court issued its opinion in DeGeer v. Union Pacific Railroad Co., clarifying that “anything short of unambiguous narrowing” of the class is insufficient to exclude a plaintiff for American Pipe tolling purposes. Accordingly, because the conductor was not unambiguously excluded from the certified class, he could take advantage of American Pipe tolling until the date of the subsequent decertification of the class, and as such his suit was timely (Hess v. Union Pacific Railroad Co., No. 24-1211 (8th Cir. Jun. 12, 2025)).

“Reportable health events.” Union Pacific’s fitness-for-duty policy requires employees to disclose particular health conditions, as well as reportable health events, which the railroad defines in its medical rules as “a new diagnosis, recent event, or change in a prior stable condition,” including cardiovascular conditions, “seizure or loss of consciousness,” “significant vision or hearing change,” “diabetes treated with insulin,” and “severe sleep apnea.”

Harris class. In 2016, a putative class of current and former Union Pacific employees filed a lawsuit, Harris v. Union Pacific Railroad Co., asserting that the railroad discriminated against them because of their disabilities. In particular, they alleged that the railroad used its fitness-for-duty policy inappropriately by routinely disqualifying employees from service based on their disabilities without conducting individualized review to confirm those employees’ ability to work safely or effectively.

Class definition narrowed. The Harris plaintiffs initially proposed a class definition of individuals who were removed from service or suffered another adverse employment action for reasons related to a fitness-for-duty evaluation during the relevant time period. However, the district court ultimately certified the class under a narrower definition: “All individuals who have been or will be subject to a fitness-for-duty examination as a result of a reportable health event.” The railroad appealed, and in March 2020, the district court decertified the class.

Conductor fired due to Xanax use. The conductor began working for Union Pacific in 2013. In 2015, he was prescribed Xanax to treat his post-traumatic stress disorder. At the time, the railroad did not prohibit employees from taking drugs like Xanax, but in 2016 it released a list of prohibited medications that included Xanax. After it learned that the employee was taking Xanax in January 2017, it removed him from service and initiated a fitness-for-duty evaluation. About one year later, the railroad sent him a fitness-for-duty-determination which placed him on permanent work restrictions, disqualifying him from doing his job.

Claim dismissed as untimely. After the decertification of the Harris class, the conductor filed an EEOC charge and subsequently received a notice of right to sue. He then filed this action alleging ADA claims of disability discrimination. Union Pacific moved to dismiss the complaint as untimely, arguing that because he was not a member of the class as certified, the statute of limitations on his claims was not subject to American Pipe tolled while the class action was pending. The district court agreed and dismissed his complaint.

American Pipe tolling. Pursuant to American Pipe tolling, the commencement of a class action suspends the applicable statute of limitations for all putative class members. In turn, a denial of class certification—or, in this case, decertification—typically starts the clock again. Here, for purposes of appeal, the parties agreed that the filing of the Harris class action tolled the conductor’s ADA claims because he was a putative member of the class as initially defined.

However, they disputed when the clock started running again. The railroad argued that he was excluded from the narrower certified class, and thus American Pipe tolling ceased for his claims on the date the court certified the class, and his complaint was filed too late. Conversely, the conductor asserted that he remained a member of the narrower certified class, and thus American Pipe tolling applied until the date of decertification.

DeGeer. In its recent decision in DeGeer, the Eighth Circuit reversed the dismissal of another putative Harris class member’s complaint despite the railroad’s urging that he—like the plaintiff here—was not included within the narrow class certified by the district court because he did not suffer a “reportable health event,” and therefore was not terminated as a “result of” one. Joining the Fifth and Ninth Circuits, the Eighth Circuit found that “[b]ecause the Harris class did not unambiguously exclude [the plaintiff] when the district court certified it under a narrowed definition, he was entitled to American Pipe tolling.”

No ambiguity. In the instant action, the conductor similarly was not “unambiguously excluded” from the certified class. Pointing to its medical rules, the railroad argued that the conductor did not have a reportable health event because taking a restricted prescription medication is not included within the five categories of health conditions that can constitute reportable health events. But the employee countered that, in practice, the railroad treated a much broader array of conditions than those listed in the medical rules as a reportable health event that triggered the fitness-for-duty process, including “non-listed health conditions” and taking restricted prescription medications.

Indeed, when Union Pacific sought reversal of the Harris class certification order on appeal, it asserted that even the narrowed Harris class would include more than 7,000 employees,” with “a broad universe of medical conditions, including but not limited to heart disease, brain injury, post-traumatic stress disorder,..., and epilepsy.” Moreover, in the challenged certification order, the district court did not state that the term “reportable health event” in the Harris class definition was defined solely by the medical rules. Accordingly, because the employee was not unambiguously excluded from the certified class, American Pipe tolling applied, and his suit was timely.

The case is No. 24-1211.

Judge: Kelly, J.

Attorneys: Laura Baures (Nichols Kaster) for James Hess. Mark Joseph Goldsmith (Baird Holm) for Union Pacific Railroad Co.

Companies: Union Pacific Railroad Co.

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