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Railroad failed to accommodate hearing-impaired conductor

Posted On: Sep. 16, 2020 11:42 AM CST


A railroad failed to reasonably accommodate a hearing-impaired conductor who was terminated, a federal appeals court said Monday, in overturning a lower court ruling and reinstating his disability discrimination claim.

Mark Mlsna, who had experienced hearing loss since his youth, was hired by Omaha-based Union Pacific Railroad Co. in 2006, when he had been wearing hearing aids for more than 10 years, according to the ruling by the 7th U.S. Circuit Court of Appeals in Chicago in Mark Mlsna v. Union Pacific Railroad Co.

In 2012, the Federal Railroad Administration implemented regulations to ensure conductors had hearing acuity, and to confirm that railroads appropriately protected and conserved their workers’ hearing.

Mr. Mlsna was tested both with hearing aids, and without, using an amplified hearing protection device call the “Pro Ears-Gold,” the ruling said.

Mr. Mlsna did not pass the test without his hearing aids and without hearing protection, nor did he pass the audiological test using the Pro-Ears-Gold. Rather, he passed only when he relied on his hearing aids with no additional hearing protection.

Mr. Mlsna proposed he use a particular custom-made hearing protection device, but Union Pacific rejected the proposal because the device did not have a factory-issued or laboratory-tested noise reduction rating as required by the federal regulation. The railroad refused to recertify Mr. Mlsna as a conductor and his employment was terminated.

Mr. Mlsna filed suit in U.S. District Court in Madison, Wisconsin, charging violation of the Americans with Disabilities Act. The district court granted the railroad summary judgment dismissing the case, ruling Mr. Mlsna had “failed to marshal enough evidence for a reasonable jury to conclude that he could fulfill the essential functions” of his job with a reasonable accommodation.

The ruling was overturned by a unanimous three-judge appeals court panel. The parties did not dispute Mr. Mlsna had the requisite background experience and knowledge to work as a train conductor, that his hearing impairment is a qualifying disability under the ADA, nor that his disability was the reason he was not recertified, said the ruling.

“In dispute is whether Mlsna can perform the essential functions of the position of train conductor with or without reasonable accommodation,” it said.

“Potential reasonable accommodations were not considered which could have permitted Mlsna to wear hearing protection while also meeting the requirements of the hearing acuity regulation,” the decision said.

“There is no shortage of devices without published noise reduction ratings which could be considered as possible accommodations for Mlsna’s disability,” whether it be the one he had suggested or others, it said.

“The record reveals another fact question on this point. Union Pacific told Mlsna that it engaged in an ‘extensive search’ for adaptive devices, but discovery showed that no such search occurred,” the ruling said.

“Because genuine issues of fact exist as to whether Union Pacific reasonably accommodated Mlsna’s hearing disability, Union Pacific should not have received summary judgment,” the ruling said, in remanding the case for further proceedings.

Plaintiff attorney Adam Hansen, of Apollo Law LLC in Minneapolis, said in a statement, “Disabled Americans can contribute in the workplace just like anyone else. That was Congress’ message and promise when it passed the ADA. We’re pleased the Seventh Circuit recognized that principle when it vindicated Mr. Mlsna’s claim.”

The railroad’s attorneys did not respond to request for comment.