[00:00:00] Speaker 02:
Thank you, Your Honor. May it please the court? Jessica Garland for the plaintiffs. If I may, I'd like to reserve three minutes. Thank you.

[00:00:09] Speaker 02:
The district courts held that there's not a genuine dispute of material fact as to whether Mr. Blankenship, Mr. Goss, and Mr. Campbell are qualified individuals. That was error because the courts assumed the workers could have had a change in vision since passing a prior test but union pacific doesn't defend this reasoning because it repeatedly asserted to the contrary that the plaintiffs have had no vision change instead union pacific asserts that the workers are not qualified because they did not pursue remedies with the fra and do not hold a certification from the railroad but this court's precedence in roar versus salt river carpenter versus manana and Bates v. UPS foreclose both arguments.

[00:00:56] Speaker 02:
I'll begin by explaining why the workers were correct in not attempting to exhaust the FRA dispute resolution procedures before filing this suit. Although, as we noted in our briefs, the exhaustion argument is waived, it's also wrong on the merits. As this court made clear in Wong v. Reno, there is no requirement to exhaust if an agency lacks the authority to grant the type of relief requested. And in Carpenter v. Mineta, this court held that the FRA cannot provide a remedy for a labor dispute.

[00:01:29] Speaker 02:
In that case, the plaintiff failed a simulator-based skills test and was denied certification. It requested that he be retested and certified, and it pursued all three levels of FRA certification. remedies in pursuing that relief. But the FRA administrator held that it had no power to provide either remedy. As the FRA administrator explained, that's because railroads have the singular authority to create their own remedies for incorrect denials of certification.

[00:02:02] Speaker 02:
And this court affirmed

[00:02:04] Speaker 03:
Counsel, there is an administrative process for certification decisions by the railroad, and that can be reviewed through an administrative agency. Do you see the regulations as allowing the agency to opine or weigh in on – The validity of a field test, like a light cannon test? Could the agency say, we agree with you, the light cannon test is too imperfect and should not be used?

[00:02:38] Speaker 02:
All that the agency can say is that that test doesn't satisfy our regulations. It can't say that it violates the ADA, and it can't say you have to use a nondiscriminatory test. The same dispute regulations at issue in Carpenter v. Mineta, 49 CFR 240, apply here. And so that's what this court understood, those regulations as limiting the FRA's capability. But this court was clear that although railroad employees wrongly denied engineering certification cannot get that certification from the FRA, they're not left without any remedy.

[00:03:13] Speaker 02:
They can seek relief through a statute specifically addressed towards labor disputes, and that's exactly what the plaintiffs did here.

[00:03:19] Speaker 03:
Could they challenge the validity of the FRA test otherwise through the administrative process, even absent from ADA-type claims or discrimination-type claims?

[00:03:32] Speaker 02:
Just to be clear, it's not the FRA test. The light cannon test was an in-house proprietary test that Union Pacific itself made up. The FRA.

[00:03:40] Speaker 01:
But it was approved by the FRA. The FRA allows the railroad to choose its test. Now, you're saying that you're, as I understand it, making an as-applied challenge here to the test itself, saying Blankenship and I guess Donahue have vision, right? They didn't pass the test.

[00:04:03] Speaker 01:
So isn't the determinant of issue whether they passed the test or whether they didn't pass the test? Because this is what the FRA allows the railroad to use as a test?

[00:04:13] Speaker 02:
Well, the light cannon test is not a valid test, so it does not abide by the FRA regulations. And Union Pacific hasn't shown that it went through the proper procedures to get it approved by the FRA.

[00:04:28] Speaker 01:
But the FRA allows the railroad to choose its test, correct, to use a light cannon test, correct?

[00:04:36] Speaker 02:
It provides some guidelines. It says the test must be valid, reliable, and comparable.

[00:04:41] Speaker 01:
Let me ask you this. Did you submit on your motion for summary judgment any expert testimony as to the unreliability of the light cannon test?

[00:04:50] Speaker 02:
Yes, we cited Dr. Rabin and Dr. Ivan's findings. Those are two experts that Union Pacific hired, and they found that the test was not valid. They specifically found that the test had over a 25% false fail rate, and we quoted them as recognizing that the test was, quote, as administered was not valid because of the high failure rate of color vision normal individuals. Again, that's not our experts. That's Union Pacific's own experts.

[00:05:21] Speaker 04:
Hey, Council, can I ask a question? This is how I read the statute. Yes, the statute. First of all, there is a separate provision under which Union Pacific could have submitted the light cannon for FRA approval, right? Yes.

[00:05:42] Speaker 02:
Yes.

[00:05:43] Speaker 04:
They did not do that, right?

[00:05:44] Speaker 02:
There is no evidence in the record showing they did that, yes.

[00:05:48] Speaker 04:
Okay. Then the statute, subsection H, says, except as provided in paragraph J of this section, each person shall have the visual acuity that meets or exceeds the following thresholds. And it's here where they talk about the, what is it, the Shara test? Yes. appears in Appendix D. Yes. And then subsection J says, a person not meeting the thresholds in paragraph H and I of the section shall, which to me sounds mandatory, upon request, be subject to further medical evaluation by the railroads medical examiner.

[00:06:34] Speaker 04:
And I assume this is what Judge Beya is mentioning when he says that they can do that, they can have their own medical examiner do that, determine the person's ability to safely perform as a conductor. So they're entitled to the second test. And presumably that test is the one that needs to be, what is it, clear, reliable, and comparable, right?

[00:07:05] Speaker 02:
Valid, yes.

[00:07:06] Speaker 04:
Yes. And that's what you're challenging here, that it's not clear, reliable, and comparable to one of the tests. Now, they could have administered another test that appears in Appendix D, and apparently those are approved by the FRA, but they didn't do that. They had their own test.

[00:07:31] Speaker 00:
Yes.

[00:07:31] Speaker 04:
And is there evidence that that test...

[00:07:36] Speaker 04:
What you're contesting is that that test doesn't meet the standards of the FRA and thereby discriminates against colorblind people. It eliminates more people than other people. And these people are disabled people because they're colorblind, I guess. Is that how this argument goes? Because I didn't see the brief. from Union Pacific to address any of the statutory or regulatory other than arguing about jurisdiction.

[00:08:13] Speaker 04:
Why we can't decide this case.

[00:08:15] Speaker 04:
But they didn't respond to this argument that he's entitled to a valid second test. He's still entitled to a valid second test.

[00:08:26] Speaker 02:
Yes, we agree, Your Honor. Of course, as we explained in the briefing, the jurisdictional argument is foreclosed by the Supreme Court's decision last summer in McLaughlin. I'm happy to address it, although I think it's quite clearly foreclosed. And I also note that Union Pacific didn't grapple with this court's decision in Roar v. Salt River. Union Pacific asserts that our reading would force them in between the rock of FRA safety regulations and the hard place of ADA liability. But this court in Roar v. Salt River explains that's not the case.

[00:08:59] Speaker 02:
When an agency gives a company wide discretion in order to create their own test, that company has to create a test that both satisfies the safety regulations and the ADA as long as it's possible to do so. Here, because they were allowed to create whatever field test that they wanted to as long as it satisfied the FR regulations, they had the discretion to make one that also satisfy the ADA. And I want to note the issue here isn't that the light cannon test is too safe.

[00:09:30] Speaker 02:
It's that it's too arbitrary. And kicking out a fourth of the individuals who have total vision ability to see railroad signs. It's not ensuring that the railroads are safer. It's just being discriminatory for no reason.

[00:09:45] Speaker 03:
So let me ask this. Both of the district courts ultimately resolved for a number of the plaintiffs that they had not made out a prima facie case because there was no evidence in the record that those plaintiffs could satisfy a different test or any type of validly approved test.

[00:10:06] Speaker 03:
And the only, I think, exception to that seems to me to be Donahue, because Mr. Donahue had gone and gotten a private doctor to test him for Ishihara, and I think he approved there. So he's in a little bit of a different place than the other plaintiffs, but why are the district courts incorrect in finding no genuine dispute of material fact over the fact that there is no recent tests that would establish that they, a tribal dispute that they do have vision abilities.

[00:10:40] Speaker 02:
Starting with Mr. Blankenship, Union Pacific itself asserted as a fact that he, quote, suffers from no vision impairment and, quote, has no color vision deficiencies. This is at ER 402 and 424. And on page 31, footnote 7 of their answering brief, they say he, quote, does not have an actual disability. So even Union Pacific is saying he has perfect color vision.

[00:11:05] Speaker 02:
That's also demonstrated by the fact that he passed color vision tests in the past, including the Ishihara test and Union Pacific's prior field test. And Union Pacific asserts again and again that he, like all the plaintiffs, have never had a change in color vision.

[00:11:20] Speaker 03:
But I guess my concern with that argument and what didn't seem persuasive to the district courts is that there is this three-year certification time period. And so whatever may have happened prior to those three years, someone could pass the test year after year or period after period. But if you're not passing some valid test during the relevant period of time, you cannot be certified. Right. So why does that create a genuine dispute if there's nothing within the relevant time period that suggests that they could pass such a test?

[00:11:56] Speaker 02:
So the evidence is that they did pass a valid test in the past and their vision hasn't changed again. And so as the cases we cited note, there's generally a presumption if you have no change and you pass the test in the past, you could pass it again. The problem is they were never given a valid test again to show they could pass it. And as this court and all the civil rights cases we say in the brief show, a company can't prevent someone from challenging a certification exam by refusing to give them a non-discriminatory certification exam and saying, because you've never challenged the exam, you can't say you're qualified.

[00:12:30] Speaker 03:
But let's give Mr. Donahue as an example. He walked in and he got a private exam because the field test is not a requirement as a second test. It could be an ophthalmological exam as well.

[00:12:43] Speaker 03:
And so he went in and he presented evidence that he might actually be vision compliant within the relevant time period. And so he presents a little bit of a different situation that I'm going to ask opposing counsel about. But Why couldn't other plaintiffs have done the same in order to establish a tribal issue? Or is that, in your view, just not something that plaintiffs should be required to do in order to create a genuine dispute for trial?

[00:13:06] Speaker 02:
That's what this court held in EEOC v. BNSF at page 918. It specifically held that, quote, allowing employers to place the burden on people with perceived impairments To pay for follow-up tests would subvert the goal of the ADA to ensure that those with disabilities have equality of opportunity. So requiring these individuals who have been terminated, not being paid anymore, to go and pay out-of-pocket for multiple expensive tests.

[00:13:33] Speaker 03:
And that was about the MRI test.

[00:13:35] Speaker 02:
Exactly. But the same point applies here to require individuals who have been fired, they have no money, they have to go now pay out-of-pocket to prove that they have been discriminated against. that creates an inequality against individuals with perceived impairments. And they don't need to do that, both because that's what this court held and because there's enough evidence to get to a jury. The only question is, is their dispute a material fact? If they were given a valid test, could they pass it? They don't need to have the certification itself.

[00:14:06] Speaker 02:
That's what this court held on Bonk and Bates. They just need to show the ability to do the job, the fact that they were able to do the job, Can I, before you sit down, and I'll let you run over a little bit.

[00:14:33] Speaker 03:
You rely on Bates for the proposition that this – that the administration of this test is purposefully discriminatory and should not apply – that there should not be a burden-shifting McDonnell-Douglas framework.

[00:14:49] Speaker 03:
It seems like this is a very different situation than what we've seen in other cases like Albertson's. This is because the regulations require the railway to conduct a second test of some kind, but it gives the railroad some discretion as to what to choose. But this is a heavily regulated activity though, right? I mean the railroads are – Congress wanted to ensure that conductors had to be certified before they could be locomotive operators and other things.

[00:15:23] Speaker 03:
So help me situate why Bates is applicable here as a purely discretionary test versus something else that's a little bit more mandatory. Okay.

[00:15:40] Speaker 02:
I think three points. First, you know, we're not asking that they be certified. We're asking for damages under the ADA. We don't dispute that they cannot be certified unless the railroad certifies them. That's what the FRA says. So this is not undermining the safety rules. And then Bates recognizes that a railroad can have a business necessity defense to say it wasn't a violation of the ADA because we need this specific test because otherwise we can't ensure safety.

[00:16:07] Speaker 03:
But the difference in Bates, and I'll let you continue in a second, is that in Bates there was a regulation that said we're going to test drivers of certain trucks over a certain weight for deafness. But UPS decided to go and do that for all drivers. Whereas here, these certification requirements are for all conductors. It's not a subset of them. So that's why it seems it's not quite as discretionary as the facts presented in Bates.

[00:16:34] Speaker 02:
I think Roar versus Salt River is on all fours right here. At issue there was an OSHA safety requirement that any welder needed to have a respiratory health certification. And it had to do that annually. But it told companies that they had discretion to figure out exactly what was part of that medical evaluation to have the health certification.

[00:16:57] Speaker 02:
And this is at page 863 in Roar versus Salt River. And the court there explained this is not like Albertson's because the agency is giving a discretion on how to meet a certain safety standard. And so because the company can craft what's in that safety standard, they could use their discretion to be discriminatory or they could use their discretion not to be discriminatory. So an individual is able to challenge a test that's discretionary. and discriminatory because the company has that ability to choose not to be discriminatory.

[00:17:33] Speaker 02:
And that's what is the distinguishing factor from what's going on in Albertsons. It's this discretion. And a company can't hide behind discretion to inflict discriminatory tests on individuals.

[00:17:45] Speaker 03:
Okay. We'll give you a little time for a rebuttal.

[00:17:47] Speaker 02:
Thank you.

[00:18:17] Speaker 00:
May it please the court. My name is Scott Moore on behalf of the appellant, Union Pacific Railway Company, along with Michael Westheimer, who was on the brief in Mr. Donahue's case. This court should follow the well-reasoned opinion from the Fifth Circuit of Turner v. BNSF Railway, in which BNSF did exactly what Union Pacific did here, and the Fifth Circuit addressed the exact issue that's before this court. And that is, when a conductor or locomotive engineer brings an ADA claim, they must first exhaust their wide ranging appeal process through the FRA, which includes a administrative hearing, a full ALJ hearing, and the administrator's decision after to decide whether a certification has been wrongfully decided.

[00:19:10] Speaker 00:
And I would like to get right into the questions Judge Wardlaw asked.

[00:19:14] Speaker 03:
Well, before we do that, Mr. Moore, how is there an exhaustion requirement of the regulations say employee may file a petition with the FRA?

[00:19:24] Speaker 00:
Well, again, it is in order that the Congress delegated to the Department of Transportation, which of course delegated to the sub-agency of the Federal Railroad Administration, the authority to regulate certifications requires of locomotive engineers and conductors for the safety of the railroad and the public. And that is quite frankly an exclusive remedy because what they're challenging here is a denial of certification. And that certification process has a robust appeal process through the FRA that these locomotive engineers and conductors can challenge.

[00:19:58] Speaker 00:
In fact, in the record, you'll see two decisions.

[00:20:02] Speaker 00:
one from Pendergraf and one Marlowe, where they actually appealed the denial of Unipacific's denial of their certification based upon the color vision field test, that the locomotive board in one case and conductor board in the other case held that Unipacific properly denied recertification, and that the color vision field test met the requirements of the regulations.

[00:20:26] Speaker 03:
But I mean, I go back to the language of the regulation itself, which says employee may. And then you have a statutory provision, 49 U.S.C. Section 20135D. An individual denied a license or certification shall be entitled to a hearing. under 201.03e of this title to decide whether the license has been properly denied or conditioned. That's permissive language. That's giving a person who's been denied certification an avenue of relief.

[00:20:59] Speaker 03:
I'm straining to find how that is mandatory that someone would have to file with the agency in order to challenge a certification decision in the absence of, you know, let's say they think they have a viable ADA claim.

[00:21:11] Speaker 00:
Sure. Because of the uniqueness of the ADA. The ADA, unlike any other employment discrimination statute, requires that an individual show that they're qualified to perform the job.

[00:21:22] Speaker 00:
The plaintiffs in this case admit it is an essential function of the job to have that certification and satisfy those standards. Thus, very uniquely under the ADA, they must show they meet those preliminary qualification requirements before they proceed with their claim, no matter what their claim is. And for that, and that's why Turner determined that because of the importance of the certification and the fact the FRA gives a railroad medical examiner the discretion to make that determination, which happened here.

[00:21:54] Speaker 00:
Judge Wardlaw, I know you mentioned Union Pacific. What happened here is the railroad medical examiner, Dr. John Holland, and you can see this at SER 110 in the record, issued the denial of certification, and it is that individual who, under the regulations, that is required to make the determination.

[00:22:12] Speaker 04:
And that's why in Turner, the decision was... Can I just probe that for a second, though? Sure. What do you make of the language in the statute that says they're entitled, mandatory second test, they're entitled to?

[00:22:31] Speaker 00:
Yes.

[00:22:32] Speaker 04:
And what's being challenged here is the validity of, the second test that was offered.

[00:22:44] Speaker 04:
And so it seems rather circular. The argument that the medical examiner appropriately applied a second test that was invalid because it was discriminatory and then relied on the results of that test to deny the certification. And now you come back and say, so he can't be qualified when it's the very test that he's challenging.

[00:23:19] Speaker 04:
It's not the actual denial of certification. And it's not the actual denial of certification. It's the denial of a valid second test to which he's entitled under the statute.

[00:23:35] Speaker 00:
Well, that would be true if this wasn't mandated by FRA safety regulations. In order for this court to decide that this case should go in front of a jury, you would have to disregard 49 CFR 242117C, which requires the medical examiner to make the determination, and a railroad must have a medical examiner certificate on file for conductors and cannot allow them to work without that certificate. Indeed, that goes right to our argument why exhaustion is important.

[00:24:05] Speaker 04:
That goes to the denial of certification. They're claiming damages because they weren't given a proper test. And apparently there's been no change or anything, and they haven't been offered a valid test that they allege. And they put in a lot of facts that would say, there's a genuine issue of fact as to whether he could, if given a valid nondiscriminatory test, I'm thinking of blankenship now, but given a valid nondiscriminatory test, he would have passed the test and would have been certified.

[00:24:48] Speaker 00:
Well, I'll say two things on that. Number one, the secondary field test is pursuant to federal regulations. and the FRA has the ability to review that test and decide that it's not reliable, valid. Everything that they're asking this court to do is to determine what the FRA regulations mean, and secondly, what the FRA would think of this test. That's what it needs to satisfy here. This is not a Bates case where they're acting above or outside of the regulations.

[00:25:22] Speaker 00:
Everything is within the regulations. Number two.

[00:25:24] Speaker 03:
I mean, that would make more sense if this were Ishihara, but this is a test that the railway, that Union Pacific chose, adopted the light cannon. The regulations aren't saying you must apply the light cannon test. So why isn't that a discretionary decision that would fit within Bates?

[00:25:45] Speaker 00:
there is some limited discretion, but it's still within the confines of what the FRA, it has to meet the FRA standards that are still out there. So yes, there is some discretion.

[00:25:53] Speaker 03:
And is that the guidance for the best practices?

[00:25:55] Speaker 00:
The best practices and the ability to appeal that this test doesn't measure what the FRA wanted it to measure. And that's important. The statute and the regulatory structure from the FRA gives that discretion to the railroad examiner for a reason. And that is because these people have already passed the, excuse me, already failed the scientific Ishihara test. They're given a second chance to nonetheless prove that they can safely operate the locomotive. And the FRA believed that the railroad medical examiner, just like under any other DOT standard, whether it be, for example, the Harris case, the PAM transport case in the A circuit with regard to FMCSA regulations, It's the same issue.

[00:26:36] Speaker 00:
The railroad medical examiner is given the discretion there. And so this court would have to say, disregard what the railroad medical examiner said, and you don't have to have a certificate. Union Pacific, you have to put them back.

[00:26:49] Speaker 03:
But this is not – it's not just a medical examiner issue. I think plaintiffs are arguing that the light cannon test is itself fatally defective, right?

[00:26:59] Speaker 03:
And so my question to you would be let's suppose – we don't have to use light cannon as an example. Let's suppose a railway does choose a field vision test that is completely flawed.

[00:27:11] Speaker 03:
What recourse would a person who was decertified on the basis of that flawed test have to challenge the propriety of that test, its use for a certification decision?

[00:27:23] Speaker 00:
They would go to the FRA, and the FRA has the absolute ability and authority to order that Union Pacific has unlawfully, under their regulations, denied the certifications. At that point, those statutes are parallel. They can bring their, they've established at that point that their unit Pacific withheld the certification unlawfully under the FRA regulations. They've met that requirement and can proceed with their ADA claim.

[00:27:52] Speaker 00:
But that certification, everything they're asking, and you can read it in their brief, is for you to determine what the FRA would have said about this particular regulation. And so in that case, and ROAR is completely different. If we look at the ROAR case, that was an OSHA regulation. that had no standards, that had no frequency with regard to when the employer needed to do the test, had nothing to follow, and there's no indication of any appeal rights. Roar is completely distinguishable from this case. In Albertson's, the Supreme Court recognized that Congress stated in certain instances when it comes to the Department of Transportation, these regulations may be inconsistent with the ADA.

[00:28:32] Speaker 00:
But Congress has given the Department of Transportation the authority to regulate railroad safety because they're in the best position to do it. I can't imagine that the Congress would ever wanted a jury of six people to determine whether a certification was properly granted or not. And that's what they're asking for here. Which goes to the second point with regard to evidence that they're able to do it. What they say is, yes, Your Honor.

[00:28:56] Speaker 04:
Hello.

[00:28:58] Speaker 04:
Sorry. You repeatedly characterize this as a challenge to...

[00:29:06] Speaker 04:
The denial of certification. Yes. Okay. But that's not what plaintiffs are arguing. They're arguing they weren't given a proper test in order to decide whether they should be certified.

[00:29:23] Speaker 04:
And what I hear you arguing is that they have no recourse to protection under the ADA case unless they challenged the use of the test before the FRA. That's what you're arguing.

[00:29:42] Speaker 00:
That's correct. And that's exactly what Turner versus BNSF for Elway said.

[00:29:48] Speaker 04:
We're not bound by that case.

[00:29:49] Speaker 00:
Oh, I understand that, Your Honor. Absolutely.

[00:29:51] Speaker 04:
Trying to get down to the, you know, try to identify, we're trying to identify the arguments that everybody's making and trying to read the statute and apply it here. So, I mean, honestly, I Your brief relied entirely on this Turner case, and I think you need to address the statute itself, not on what the Fifth Circuit did.

[00:30:18] Speaker 00:
Yeah, and I believe we have in the sense, Your Honor, that indeed the color vision field test, there is no argument that Unipacific was operating under mandatory regulations that apply to this position and set forth a procedure that must be followed. Yes, there is some limited discretion, but they have a remedy to go to the FRA to make that determination first. If this was extra regulatory, I would understand where the court would be coming from because it would be on Unipacific's own volition here.

[00:30:49] Speaker 00:
But that leads to the second argument with regard to they haven't presented any evidence to show they could meet the standard in the first place. Again, Judge Marquez in the Blankenship case said very clearly, They could have taken any of the tests, Judge Wardlaw, that you mentioned that are listed in the statute and shown it that way. They could have had an expert who is an ophthalmologist come in. And that's discovery, right? That's discovery that they were required to show a question of fact as to whether they could meet that.

[00:31:19] Speaker 01:
But your friend cited two doctors who were UP doctors who said there was a failure rate with the light cannon test. Why isn't that sufficient evidence to put to a jury?

[00:31:31] Speaker 00:
Because they still have to, on a triennial basis, demonstrate under the regulations that they meet the requirement. What they're saying is, because my client passed the old UP test, that shows—and there was no change of vision— that shows that they can meet the requirements now. The problem with that is twofold. Number one is that it requires a demonstration every three years. But more importantly, the NTSB, after the Goodwill accident, said unequivocally, unequivocally that Union Pacific's previous test And it does not accurately measure whether someone can distinguish color vision field, excuse me, color side signals.

[00:32:13] Speaker 00:
And Unit Pacific needs to replace that test. Unequivocally, they said that. And they said it was one probable cause in causing a head-on collision, which killed three Unit Pacific employees. To rely on that test would be completely reckless at that point.

[00:32:30] Speaker 03:
Mr. Donahue did get a privately administered Ishihara test, and he did pass that. So why doesn't that properly tee up a tribal dispute as to whether he was vision qualified and can then go and challenge the validity of the light cannon test?

[00:32:48] Speaker 00:
Well, again, we would say that – There's no information with regard to the validity of that test or how that test was administered.

[00:32:56] Speaker 03:
That's for trial, right? That's the genuine dispute, isn't it?

[00:32:59] Speaker 00:
But I would go back to, again, he's still challenging that certification requirement. Moreover, I want to answer Judge Sanchez, your question about this case. This is not a facially discriminatory case. They only have a disparate treatment case. They don't have an accommodation or a disparate impact case here. This is a disparate treatment case. And because it was equally applied to everyone, maybe they were entitled to an accommodation, maybe they were entitled to a disparate impact, but they're saying they were treated less favorably than non-disabled individuals.

[00:33:30] Speaker 00:
They were not. In fact, everyone took the Ishihara test, and if you failed, they were given another opportunity to show that. That on its face cannot be a disparate treatment case. And so the district court in Donahue was correct in applying the McDonnell-Douglas standard and saying there was no pretext. on intentional discrimination. Had they brought a reasonable accommodation claim, had they brought a disparate impact claim, maybe they could go forward with that. But it's undisputed that the only type of claim here is a disparate treatment case on the basis of disability.

[00:34:03] Speaker 03:
What about a claim that if the test is as flawed as it is, and Union Pacific knows about its flaws, that the administration of that test could establish some basis for pretext? At least enough to take it to trial.

[00:34:17] Speaker 00:
First of all, it's a red herring. So I will say that we disagree with their interpretation of the record. The test that those two doctors look at was a precursor to the actual test that was given. That was a different test with a different device. when Dr. Raven and Dr. Ivan did that. Secondly, the 25% failure rate they talk about were graduate students taking the exam who failed it the first time. And as the experiment said, they were unfamiliar with railroad colors, and that's why they failed it. When they took it a second time, they all passed 100%.

[00:34:48] Speaker 00:
And Blankenship did take the test twice. So that's a red herring. We certainly don't agree that it's a... We think it's a valid test, and that's upheld by the two decisions, Pendergraf and Marlowe, from the FRA... that said it complies with the FRA regulations. Unit Pacific was acting within the regulatory scope the entire time. And for that reason, we believe this court should determine that they have an exhaustion requirement before they go forward to show they're qualified, before they can go forward with the ADA claim.

[00:35:18] Speaker 03:
Okay.

[00:35:19] Speaker 00:
I see I'm out of time, Your Honor. Yes. Thank you very much.

[00:35:21] Speaker 03:
Thank you. Thank you for your arguments. Counsel, we'll give you a couple minutes for rebuttal.

[00:35:41] Speaker 02:
Thank you. I'd just like to make three points. First, my friend on the other side doesn't deal with this court's precedent in Carpenter v. Mineta, which makes clear the FRA cannot require a railroad to give someone a certification or say that someone is wrongly denied certification. All they can say is that a specific test doesn't meet their standards. And in Carpenter versus Mineta, although the individual went through all three phases of FRA review to exhaust those remedies, that took six years.

[00:36:11] Speaker 02:
And then the individual had to go still and file under the statute in order to get the actual relief that he sought. The EEOC, however, has a 300-day statute of limitations. So if an individual was required to spend six years exhausting procedures that cannot give the remedy they seek, indeed, You can't even get a ruling from the FRA saying that they are qualified. That would prevent them from actually ever succeeding under the ADA. I'd also like to explain why we have made out a genuine dispute of material fact about whether all four individuals are qualified.

[00:36:47] Speaker 02:
The prior test that Union Pacific itself told the NTSB, that's page 22 of the NTSB report, complied with FRA regulations was sufficient. And Union Pacific argues that the NTSB questions the validity of that test. But the FRA chose not to adopt that finding. And it's the FRA, not the NTSB, that has the authority to approve or disapprove of a test. As the FRA explained in its best practices report, the issue with the test before the Goodwill accident was that it wasn't properly applied.

[00:37:24] Speaker 02:
That engineer wasn't even given testing on all 10 tests. of the signals. He was only given testing on half of the signals. So the problem was with how it was applied, not that it was an invalid test. Finally, I note that in Marlow and Pendergrass, those FRA rulings were not about the validity of the test in any precedential way because they were not – the FRA rulings were not given any of the evidence that we now have from Union Pacific's own experts saying the tests are invalid.

[00:37:55] Speaker 02:
Thank you.

[00:37:56] Speaker 03:
Thank you, counsel. Thank you both for your helpful arguments. The matter will stand submitted.