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Herbst v. CSX Transportation, Inc.

United States District Court, N.D. Indiana

February 4, 2019




         This matter is before the Court on Defendant CSX Transportation, Inc.'s Motion for Summary Judgment [ECF No. 26]. The Defendant requests judgment as a matter of law on all the claims that its employee, Plaintiff Vernon Herbst, has asserted against it in this Americans with Disabilities Act (ADA) litigation. In response to the Defendant's Motion, the Plaintiff has decided to no longer pursue claims of “discrimination and retaliation for acts occurring prior to 2014 or [M]arch 1, 2015, ” as well as “any claims of harassment.” (Pl.'s Mem. in Opp'n 2, ECF No. 39). Thus, the Court is left to consider whether the Defendant's actions in connection with the process of returning the Plaintiff to work after he completed an inpatient alcohol dependence treatment program in September 2014 were discriminatory or retaliatory under the ADA.

         Furthermore, the Plaintiff filed a Motion to Strike [ECF No. 41] pursuant to Federal Rule of Civil Procedure 56. The Defendant subsequently filed its own Motion to Strike [ECF No. 45] pursuant to Federal Rule of Civil Procedure 12(f).


         CSXT is a railroad transportation company. This case involves the procedures CSXT follows when deciding whether its employees are fit to return to their duties after health-related absences. When an employee is absent from work due to a health condition, its Chief Medical Officer is responsible for assessing whether the employee is safely able to perform his duties before that employee is returned to work. The Chief Medical Officer is considered part of the Occupational Health Department, which includes CSXT's Employee Assistance Program (EAP). The EAP offers counseling, guidance, and referral services to employees who are experiencing issues that impact their well-being, including employees with substance dependency issues who are seeking treatment or other support.

         If an employee undergoes inpatient substance abuse treatment, the EAP establishes an aftercare plan following the employee's release from an inpatient treatment center. The Occupational Health Department also assesses the employee's fitness to return to work, and determines whether additional medical documentation, an assessment, or a “return to work” examination is needed to assess an employee's fitness for duty. When an employee is absent for more than seven days, or due to a medical condition that may impact the employee's performance or job safety, the employee must submit an Attending Physician's Return to Work Report from his health care provider.

         The Plaintiff has worked for CSXT since 2004, where he started as a conductor. In January 2013, the Plaintiff was promoted to the position of locomotive engineer. During his period of employment with CSXT, the Plaintiff has sought and obtained inpatient treatment four times for alcohol dependence, a condition that he asserts, alone or in combination with his other psychiatric disorders, impaired him in many important areas of life during relapses. The periods of voluntary inpatient treatment included from July to October 21, 2010; July to August 5, 2011; June 1 to September 24, 2014; and August 17 to October 3, 2016.

         For the 2010 alcohol dependency treatment, the Plaintiff contacted the Defendant's EAP. Tom Leathers, an EAP Manager, was assigned to monitor the Plaintiff's situation and to develop a plan for returning to work at the appropriate time. As the EAP Manager, Leathers recommended to the Plaintiff a substance abuse dependency treatment program located in Salem, Virginia. CSXT has an established relationship with the facility. The Plaintiff agreed, and was at the Salem, Virginia, program for three months. Because of CSXT's existing relationship with the Virginia facility, the Plaintiff's treatment providers were communicating with CSXT about the Plaintiff's treatment. When the Plaintiff completed treatment in October, the EAP developed an aftercare plan to assist the Plaintiff in maintaining sobriety. The aftercare plan was based on recommendations from the treatment program that were set forth in a discharge summary and from CSXT's Occupational Health Department. In November 2010, the Plaintiff was medically cleared to return to his conductor position.

         Between mid-January 2011 and mid-February 2011, the Plaintiff began missing days of work and failed to meet CSXT's “minimum availability” requirements for being available to work. This pattern continued through the spring and early summer of 2011. In July 2011, the Plaintiff returned to inpatient treatment for alcohol dependency for a one-month period.

         The Plaintiff again used a CSXT recommended treatment facility. Leathers had communication with the facility providers and received a discharge summary in August 2011. The Plaintiff agreed to an aftercare plan following his discharge, developed by the EAP based on recommendations from the treatment facility and input from members of the EAP and the Occupational Health Department. In September, the Health Department advised the EAP that the Plaintiff had to be in recovery and following the 2011aftercare plan for six months before it would consider returning him to service.

         The Plaintiff did not agree with the requirement that he demonstrate six months of sobriety before being allowed to return to work. Nor did he believe that such a requirement had been communicated to him when he agreed to the aftercare plan. The Defendant's records, however, show that this was the Occupational Health Department's and the EAP's understanding of what would be required. The EAP case progress notes from December 22, 2011, are a response to the Plaintiff's complaint that he did not know what was going on and that he needed to get back to work to alleviate financial burdens. Leathers left the Plaintiff a message advising him that he had not yet complied with the aftercare plan that he had signed for six months. At the end of January 2012, the Plaintiff complained to Leathers that the Defendant was marking him out sick until March (which would have marked the end of the six-month period for the aftercare plan). In February 2012, the Plaintiff wrote a letter to Leathers expressing his opinion that he should have already been returned to work. According to the Plaintiff, Leathers had not been responsive to his phone calls, and told him only that the Medical Department was denying his return. Eventually, the Plaintiff achieved six months of sobriety and complied with the 2011 aftercare plan, and CSXT returned him to service in April 2012 following a return to work examination.

         Several incidents occurred in 2013 and 2014 that suggested to the Defendant that the Plaintiff might be struggling with his mental health or alcohol dependence. At the end of May 2014, the Plaintiff contacted Leathers because he wanted to go back into alcohol dependency treatment and had selected a treatment center. The facility was located in West Palm Beach, Florida. Leathers was not familiar with the program and CSXT did not have an existing relationship with the treatment center. However, the Plaintiff was free to attend treatment at the facility of his choosing. The Plaintiff, who had to interrupt his telephone call with Leathers, advised Leathers that he would call the EAP back with detailed information about the facility. The Plaintiff, however, did not contact the EAP again before going into treatment, where he would not have any communication with the EAP until several months later. The next notation in the Case Progress Notes is on June 3, 2014, and it states that Leathers attempted to contact the Plaintiff and left him a message. The Plaintiff was marked off sick on June 11.

         On June 13, 2014, the Defendant sent the Plaintiff a letter advising that if his ongoing absence since May 31, 2014, was due to his inability to perform his duties for medical reasons, he was required to submit documentation from his heath care provider. The letter warned that if the Defendant did not receive documentation by July 20, 2014, the Defendant would consider the Plaintiff to have voluntarily resigned his employment. A Case Progress Note from July 18 indicates that the Plaintiff remains off sick, has had no contact, his whereabouts are unknown, and he has not submitted any medical documentation to support his absence. On August 15, 2014, the Defendant sent the Plaintiff a letter stating that, by his non-response to its previous letter, he had voluntarily resigned from CSXT effective July 20, 2014.

         While he was in treatment in Florida, the Plaintiff had contact with Jamie Modesitt, a union representative. Modesitt relayed information to Leathers near the end of the Plaintiff's inpatient treatment in September 2014. Leathers told Modesitt that the Plaintiff needed to sign a release and have the treatment center contact Leathers. On September 19, 2014, Leathers received a telephone message from the Plaintiff, who indicated that he had about one more week in treatment. He acknowledged that the union told him that the EAP needed to communicate with the treatment center, and he requested that Leathers call him back. Leathers then discovered the August 15, 2014, letter advising the Plaintiff that he was considered to have voluntarily resigned from CSXT effective July 20, 2014. This complicated matters, as the Plaintiff's status as voluntarily resigned had to be changed, and the Plaintiff considered an employee, before the Plaintiff could be deemed medically cleared to return to work.

         On November 14, 2014, the voluntary resignation was rescinded. The Plaintiff was also advised by letter on this same date that, to be considered for return to active duty, he had to contact the Treatment Center of Palm Beaches and secure certain documentation related to his treatment, including a discharge summary. ...

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