Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—D. Neb.: Railroad employee, sent home over hip injury, advanced disability discrimination claim, (Nov 12, 2025)

By Molly Platnick

In 2017, the former employee, who was “morbidly obese,” sought treatment for pain in his left hip, and an X-ray revealed osteoarthritis.

A federal district court in Nebraska granted in part and denied in part a railroad company’s motion for summary judgment in a case brought by a former employee whose role was limited after developing osteoarthritis. The former employee alleged the company was liable for disability discrimination, improper medical inquiry/examination, and failure-to-accommodate under the ADA. The court ruled the company discriminated against the employee for his disability when it restricted his role because he was a qualified individual with a disability and his disability did not pose a direct threat to himself or others. However, the employee could not plead failure to accommodate because he did not initiate the accommodation process (Silos v. Union Pacific Railroad Co., No. 8:23CV113 (D. Neb. Nov. 7, 2025)).

Railroad career. The former employee worked for the railroad company for about two decades, starting in 1998. Initially hired as a trackman, he became a backhoe operator in 2011, then, a year later, a track inspector. The railroad company eliminated the track inspector position shortly thereafter, and the employee returned to the backhoe operator position. The employee alleged, however, he was still expected to perform the “functions of the trackman position.”

Sought treatment. In 2017, the former employee, who was “morbidly obese,” sought treatment for pain in his left hip, and an X-ray revealed osteoarthritis. His primary care physician submitted a “Statement of Sickness” with the Railroad Retirement Board, stating the employee was unable to work but would be able to return in two weeks. The employee resumed his role as a backhoe operator in 2019 but was “disqualified” from operating his machine a few months later after damaging railroad equipment. Here, he and railroad company disputed the severity of the damage.

“[S]ent home.” The former employee was reassigned to operate a front ladder, a role which required him to walk on “uneven surfaces” and climb the ladder over 30 times a day. In January 2020, the employee was “sent home.”

The former employee claimed he was discharged because of his hip injury. His supervisor testified the employe mentioned his “bad hip” twice, prompting the supervisor to file a “Supervisor Initiated Fitness-For Duty Request Form” in January 2020. A nurse in the railroad company’s Health and Medical Services department directed the employe to see a new primary care physician (PCP) and an orthopedist. The PCP advised the employee he would eventually “need a hip replacement” but submitted a Statement of Sickness indicating he could return to work immediately. The physician later testified he did not know the employee’s duties and competed the form based on solely on the employee’s claim “he could do it.” The orthopedist diagnosed the former employee as a fall risk and likewise recommended a hip replacement. He did not advise when the employee should go could return to work because, he later testified, he did not have enough information to “opine” about whether the employee could safely do his job.

Restricted duties. A doctor for the railroad company restricted the employee’s duties based on the employee’s obesity and the examinations of the primary care physician and orthopedist. The employee was ordered to “avoid bending his knees, climbing, crawling, kneeling, standing for prolonged time, standing or walking on uneven surfaces, and walking for a prolonged time.” The employee’s supervisors concluded they could not accommodate these restrictions and in April 2020 the employee was notified he could not “safely return to work in [his] assigned position or any job at the railroad.”

No accommodation request, benefits denied. The employee requested to return to work in the same role but did not make any other request for accommodation. In July 2020, he sought disability benefits form the Railroad Retirement Board and requested the PCP to submit a statement to the Board. The PCP wrote the employee was “unlikely to return to work” and was not responsive to treatment. The doctor claimed to have taken the employee “at his word,” and did not do any “independent analysis” as to whether the employee could perform his duties. The Board denied the employee’s request to receive benefits.

Procedural history. The former employee brought this case against the railroad company within three years after being discharged, alleging disability discrimination, improper medical inquiry/examination, and failure-to-accommodate under the ADA. The former employee waived his improper medical inquiry/examination claim because he did not oppose the company’s arguments.

Disability discrimination. The court denied summary judgment as to the disability discrimination claim, finding there was a genuine issue of material fact as to whether the employee was “otherwise qualified” for his position when the railroad company restricted his duties.

McDonnell Douglas burden-shifting. The threshold issue was whether a burden-shifting standard applied because former employee had no “direct evidence” of discrimination. The Supreme Court’s holding in McDonnell Douglas requires an employee to establish a prima facie case of disability discrimination. If he does, the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse employment action, which shifts the burden back to the employee to show the reason was a pretext for discrimination. The Eight Circuit has not elucidated whether McDonnell Douglas applies in cases where the employer limits the employee’s role due to a potential safety risk for the employee with a disability. The court dismissed the burden-shifting vs. direct-evidence issue as immaterial because both frameworks required the employee to show he was “otherwise qualified” but for his disability.

Qualified individual with a disability. An employee is a qualified individual under the ADA if he (1) possesses the requisite skill, education, experience, and training (2) is able to perform the essential job functions with or without reasonable accommodation. Here, the railroad company disputes the second requirement, whether the employee could perform the essential functions of a machine operator or trackman. To determine whether a duty is an essential function, the court looked to (1) the employer’s judgment; (2) written job descriptions; (3) amount of time spent on the job performing the function; (4) consequences of not requiring the employee to perform the function; (5) current work experience of employees in similar jobs. The court emphasizes the first element, the employer’s judgment, “highly probative.”

The court found no evidence the former employee was unable to perform his essential duties at the time he was discharged. The railroad company argued “climbing, bending, stooping, crawling, kneeling, standing for long stretches, and walking on uneven surfaces” were essential functions of the trackman/machine operator position. However, in the court’s view, the company’s evidence only showed the employee had a hip injury and was at risk of falling, not that his hip injury stopped him from performing his duties nor caused him to fall. The court rejected the supervisor’s testimony the employee had “some walking issues, stumbling, and abilities to climb” as too general to prove the employee could not perform his duties. The court concluded, “concerns about future harm…shed no light on the issue of whether [the employee] was able to perform the essential functions of his job at the time [the railroad company] imposed the restrictions.”

Because the railroad company could not point to duties the employee was unable to perform, it argued he was not qualified for safety reasons. The court reiterated there was no evidence the employee’s hip condition made caused him to endanger himself or others. The court found this argument better suited to a “direct threat” defense.

Direct threat. A direct threat is a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The Supreme Court has held a direct threat analysis must be “individualized” and rely on the “best current medical or other objective evidence.” The Court directs lower courts to consider (1) duration of the risk, (2) nature and severity of the harm, (3) likelihood the potential harm will occur, and (4) imminence of the harm.

The court in this case found the railroad company did not meet the second element. The court held “the nature and severity of the potential harm caused by [the employee’s] hip condition is…not particularly high.” The railroad company relied on a line of cases involving train yard employees who were seriously injured because of seizures and head injuries on the job. The court distinguished these “incapacitating” medical events as likely to cause much more severe harm than a hip injury. “The severity of potential harm caused by an employee losing consciousness and the severity of a potential harm caused by an employee falling are vastly different.”

The court found a genuine issue of material fact regarding the likelihood and imminence of the potential harm. The court found the doctor’s testimony the employee was “at risk” of falling was too speculative. Further, two doctors told the employee his condition could be mitigated by weight loss and/or a hip replacement, decreasing the likelihood of potential harm.

Failure to accommodate. The court granted the railroad company’s motion for summary judgment against the employee’s failure to accommodate claim.

The burden is on the employe to seek an accommodation by alerting his employer and providing relevant details. To demonstrate the employer did not engage in this “interactive, accommodation-seeking process,” an employee must show (1) the employer knew about the employee’s disability; (2) the employee requested accommodations or assistance for his disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; (4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.

In this case, the employee did not request accommodations or assistance with his disability. He admitted he did not accept the railroad company’s offer to help him get a job and did not seek reemployment or vocational services. He argued the railroad company did not meet the third element and was at fault for not making a good faith effort to engage in the accommodation-seeking process. However, this was a misstatement of the law, which charges the employee with initiating the process. The court underscored that it is not enough for the employer to know of the employee’s disability; the employee must actively communicate a desire for accommodations.

The case is No. 8:23CV113.

Judge: Bazis, S.

Attorneys: Kathryn E. Averwater (Casey, Jones) for Phil Silos. Scott P. Moore (Baird, Holm) for Union Pacific Railroad Co.

Companies: Union Pacific Railroad Co.

Cases: DisabilityDiscrimination Discrimination NebraskaNews