Bien v. Union Pacific Railroad Company

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JAMES BIEN,
Plaintiff,
v.
UNION PACIFIC RAILROAD
COMPANY,
Defendant.
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Civil Action No. 4:25-cv-74
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Motion to Dismiss Plaintiff’s Amended
Complaint (the “Motion”) (Dkt. #16). Having considered the Motion, the relevant pleadings, and
the applicable law, the Court finds Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint
(Dkt. #16) should be GRANTED.
BACKGROUND
I. Factual Background
Plaintiff James Bien (“Plaintiff”) brings this disability discrimination suit against his
employer, Defendant Union Pacific Railroad Company (“Defendant”) (Dkt. #31).1 In 1998,
Defendant hired Plaintiff as a switchman and brakeman (Dkt. #31 at ¶¶ 8–10). Plaintiff later
assumed a conductor role (Dkt. #31 at ¶¶ 8–10). Prior to and throughout his employment, Plaintiff
underwent various color vision tests, often failing an Ishihara color vision test before passing a
1 On January 24, 2025, Plaintiff filed the instant lawsuit against Defendant (Dkt. #1). On August 15, 2025, Plaintiff
filed his Third Amended Complaint (Dkt. #31), in which Plaintiff excluded his previously asserted failure-to-
accommodate claim against Defendant (Dkt. #17 at p. 12). The Court considers the allegations made in Plaintiff’s
Third Amended Complaint (Dkt. #31) for the purpose of summarizing a factual background and making its
determinations on the issues raised in the instant Motion.
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secondary color vision test (Dkt. #31 at ¶¶ 9–11). Plaintiff continued his employment as a
conductor for nearly fifteen years, working ably and safely (Dkt. #31 at ¶ 10).
In 2013, as part of his Federal Railroad Administration (“FRA”) certification to work as a
conductor, Plaintiff took an Ishihara color vision test which he failed (the “2013 Ishihara Color
Vision Test”) (Dkt. #31 at ¶ 16). Subsequently, on July 25, 2013, Union Pacific required Bien to
take a color vision field test, which Plaintiff contends is unreliable, inaccurate, and does not
replicate Plaintiff’s working conditions (Dkt. #31 at ¶¶ 18, 21). Plaintiff failed this secondary test
(Dkt. #31 at ¶ 22).
On July 29, 2013, Plaintiff was informed he was being removed from service as a conductor
(the “2013 Work Restriction”) (Dkt. #31 at ¶ 27). Through a letter dated July 30, 2013, Defendant
notified Plaintiff that he was restricted from working jobs that required color signal recognition and
that this restriction could not be accommodated, thus ending his employment as a conductor
(the “2013 Letter”) (Dkt. #31 at ¶¶ 27–28; Dkt. #31 at p. 29). Plaintiff admits that he also failed
another color vision field test administered on August 20, 2013 (Dkt. #31 at ¶ 29). After several
months of unemployment, Defendant hired Plaintiff as a Manager of Crew Utilization for less pay
(Dkt. #31 at ¶ 37).
After Defendant imposed its work restriction on Plaintiff, on February 1, 2014, Defendant’s
updated “Medical Rules” went into effect, which outlined its Fitness-for-Duty Evaluations
(Dkt. #31 at ¶ 13, pp. 17–28). These evaluations were intended to assess an employee’s ability to
safely perform the essential functions of that employee’s job (Dkt. #31 at ¶¶ 13–14). Plaintiff alleges
the Medical Rules impose a “rigid and formulaic approach to assessing the abilities of persons with
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disabilities,” and these assessments unfairly determine what “standardized work restrictions”
Defendant can impose on an employee (Dkt. #31 at ¶ 14).
In August or September of 2015, Plaintiff received a notification from Defendant about
performing a FRA recertification physical (Dkt. #31 at ¶ 38). On September 17, 2015, Plaintiff took
and passed an Ishihara color vision test (the “2015 Ishihara Color Vision Test”) (Dkt. #31 at
¶¶ 38–39). Based on this event, Plaintiff asked Defendant to have his medical information
reviewed, to let him retake the color vision field test, to reconsider the 2013 Work Restriction, and
to reinstate him as a conductor (Dkt. #31 at ¶ 40).
Defendant informed Plaintiff, through a letter dated October 13, 2015 (the “2015 Letter”),
that the 2015 Ishihara Color Vision Test was “done in error,” and he “should not have been
allowed to take the FRA Certification vision test, since [he was] given permanent work restrictions
by [Defendant] in 2013” (Dkt. #31 at pp. 30–32). The 2015 Letter further communicated that
Defendant was denying Plaintiff’s request to retake the color vision field test and that Plaintiff will
“continue to have permanent work restrictions that [he] not do jobs that require accurate
identification of colored train signals, based on [his] failure of a Color Vision Field Test in 2013”
(Dkt. #31 at p. 31).
II. Procedural History
Plaintiff was not the only litigant to take issue with Defendant’s revision of the Fitness-for-
Duty evaluations and its effects on their employment.2 On February 19, 2016, several of
Defendant’s employees who had been removed from their positions following their failing of an
2 Indeed, days before Plaintiff filed the instant lawsuit, a similar case was filed—Jeffrey Todd Cooley v. Union Pacific
Railroad Company, Civil Docket No. 4:25-cv-56. Both cases before the Court involve Defendant, raise similar claims,
and involve a similar statute of limitations issue. In the Cooley case, on November 3, 2025, the Court granted
Defendant’s Motion to Dismiss, and the case was closed. The Cooley plaintiff has since moved for reconsideration.
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assessment filed a lawsuit against Defendant alleging, inter alia, that Defendant’s Fitness-for-Duty
evaluations and subsequent employment decisions violated the Americans with Disabilities Act,
42 U.S.C. § 12112 et seq. (the “ADA”) (Dkt. #31 at ¶ 47). Harris v. Union Pac. R.R. Co., 329 F.R.D.
616, 621 (D. Neb. 2019), rev’d, 953 F.3d 1030 (8th Cir. 2020). The proposed Harris class was
defined as follows:
Individuals who were removed from service over their objection, and/or suffered
another adverse employment action, during their employment with [Defendant] for
reasons related to a Fitness-for-Duty evaluation at any time from 300 days before
the earliest date that a named Plaintiff filed an administrative charge of
discrimination to the resolution of this action.
Id.
On February 5, 2019, the United States District Court of Nebraska certified the Harris class
to more narrowly consist of: “[a]ll individuals who have been or will be subject to a fitness-for-duty
examination as a result of a reportable health event at any time from September 18, 2014 until the
final resolution of this action.” 329 F.R.D. at 628. Defendant filed an interlocutory appeal of this
class certification, and on March 24, 2020, the United States Court of Appeals for the Eighth
Circuit reversed the certification. Harris, 953 F.3d at 1039. The instant lawsuit comes to this Court
following this decertification.
On April 10, 2020, less than a month after the Harris class was decertified, Plaintiff
dual-filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission
(the “EEOC”) and the Texas Workforce Commission (Dkt. #31 at ¶ 52). On September 3, 2024,
the EEOC provided Plaintiff with a determination letter (Dkt. #31 at ¶ 53). On October 28, 2024,
the EEOC provided Plaintiff with a right to sue letter (Dkt. #31 at ¶ 54). On January 24, 2025,
Plaintiff filed the present suit against Defendant (Dkt. #1). Plaintiff amended his complaint twice,
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ultimately alleging Defendant was liable for disparate treatment under the ADA (Dkt. #1; Dkt. #13;
Dkt. #31).
In his Third Amended Complaint (the “Complaint”), Plaintiff asserts the following
regarding the Harris class action: (1) Plaintiff was a putative class member in the Harris case;
(2) Plaintiff’s claims against Defendant accrued after September 18, 2014; and (3) the Harris class
action tolled the statute of limitations period for his claims against Defendant asserted herein from
September 18, 2014 through March 24, 2020 (Dkt. #31 at ¶¶ 47–49). Because of the tolling period,
Plaintiff now asserts two disability discrimination claims under the ADA and specifically alleges
disparate treatment (Dkt. #31 at ¶¶ 56–74). On March 25, 2025, Defendant filed the instant
Motion, arguing Plaintiff’s ADA claims are time-barred (Dkt. #16). Plaintiff responded, and
Defendant replied (Dkt. #17; Dkt. #18). The Motion is now ripe for adjudication.
LEGAL STANDARD
The Federal Rules of Civil Procedure require that each claim in a complaint include a
“short and plain statement . . . showing that the pleader is entitled to relief.” FED. R. CIV. P.
8(a)(2). Each claim must include enough factual allegations “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the complaint
fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When considering
a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts in the
plaintiff’s complaint and view those facts in the light most favorable to the plaintiff. Bowlby v. City
of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may consider “the complaint, any
documents attached to the complaint, and any documents attached to the motion to dismiss that
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are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays
Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court must then determine whether the
complaint states a claim for relief that is plausible on its face. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “But where the well-pleaded facts do not
permit the [C]ourt to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679
(quoting FED. R. CIV. P. 8(a)(2)).
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency
of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and
disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal, 556
U.S. at 664. Second, the Court “consider[s] the factual allegations in [the complaint] to determine
if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the necessary claims or
elements.’” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009) (citation omitted). This
evaluation will “be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. Thus, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 570).
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ANALYSIS
Defendant urges the Court to dismiss Plaintiff’s claims because they are time-barred
(Dkt. #16 at pp. 8–13). Additionally, Defendant argues Plaintiff fails to state a claim based upon an
“actual” or “record of” disability (Dkt. #16 at pp. 6–8, 13–15). The Court considers each argument
in turn.
I. Timeliness of Plaintiff’s ADA Claims
Plaintiff brings claims for disparate treatment under the ADA, 42 U.S.C. §§ 12112(a),
12112(b)(6) (Dkt. #31 at ¶¶ 56–74). Defendant argues Plaintiff has failed to timely comply with the
ADA’s administrative prerequisites prior to commencing this action. Under the ADA, a plaintiff
must exhaust their administrative remedies against their employer before pursuing their claims in
federal court. Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (citing 42 U.S.C.
§ 2000e-5(e)(1)). To do so, the plaintiff must file a charge of discrimination with the EEOC or with
a state or local agency with authority to grant or seek relief from the alleged unlawful employment
practice within 300 days of the alleged discriminatory act. Id.; 42 U.S.C. § 12117(a) (incorporating
42 U.S.C. § 2000e-5(e)).
Here, the applicable limitations period for Plaintiff’s ADA disparate treatment claims
began to run from the time Plaintiff knew or reasonably should have known that Defendant’s
challenged conduct occurred. Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 878 (5th Cir.
2003) (citing Vadie v. Miss. State Univ., 218 F.3d 365, 371 (5th Cir. 2000)). However, under
American Pipe & Const. Co. v. Utah, “the commencement of a class action suspends the applicable
statute of limitations as to all asserted members of the class who would have been parties had the
suit been permitted to continue as a class action.” 414 U.S. 538, 554 (1974). A district court’s
certification of a class therefore establishes “the pertinent class definition” so that each class
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member’s claims are tolled “until the class is decertified or the case is otherwise resolved.”
Zaragoza v. Union Pac. R.R. Co., 112 F.4th 313, 319 (5th Cir. 2024) (determining that plaintiff’s
claims were tolled because he failed a vision test that “at least suggested” he was covered by the
class definition).
Defendant argues that Plaintiff failed to timely comply with the ADA’s administrative
prerequisites prior to filing suit. Specifically, Defendant argues Plaintiff’s claims are time-barred
for two reasons: (1) he was never a member of the Harris class, meaning the limitations period
continued to run; and (2) even if he was initially a member of the Harris class, Plaintiff was
unambiguously excluded from the class when the class was certified on February 5, 2019 (Dkt. #16
at p. 8). In contrast, Plaintiff contends his discrimination claims against Defendant should benefit
from the tolling period because his claims accrued after September 18, 2014—during the tolling
period created by the Harris case (Dkt. #31 at ¶¶ 63–64; Dkt. #17 at pp. 5–7). Specifically, Plaintiff
argues his claims are based on the adverse actions taken by Defendant on October 13, 2015,
conveyed through the 2015 Letter, when Defendant allegedly made a new decision pertaining to
Plaintiff’s Fitness-for-Duty (Dkt. #17 at p. 5). Plaintiff contends this subsequent decision imposes
consequences that were more severe than those imposed through the 2013 Work Restriction
(Dkt. #17 at p. 5). Finally, Plaintiff avers that Defendant’s 2015 Letter communicated a permanent
restriction from his job as a conductor (Dkt. #17 at p. 5).
Again, the tolling period created by the two Harris class definitions spanned from
September 18, 2014 to March 24, 2020. Harris, 953 F.3d at 1039. To determine whether Plaintiff
benefitted from the tolling period in Harris, the Court must determine whether Plaintiff was
included in the Harris class, and if so, for how long.
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“A class is initially defined by the plaintiffs via their complaint.” Zaragoza, 112 F.4th at 318
(citing American Pipe, 414 U.S. at 554). “As class actions progress, plaintiffs may expand, narrow,
or otherwise refine their action by filing amended pleadings.” Id. With respect to tolling,
[W]hen a district court certifies a class, that certified class becomes the pertinent
class definition. Further, the class definition persists through appeal. A subsequent
decertification of that class, either by the district court or the appellate court, ends
tolling going forward but does not affect the earlier class certification for tolling
purposes.
Id. at 319 (footnotes omitted).
A. Plaintiff was a member of the Harris class, as initially defined by the putative
class.
First, the Court must determine whether Plaintiff was included in the proposed class
definition of the then-operative complaint in Harris, which defined the putative class as follows:
Individuals who were removed from service over their objection, and/or suffered
another adverse employment action, during their employment with [Defendant] for
reasons related to a Fitness-for-Duty evaluation at any time from 300 days before
the earliest date that a named Plaintiff filed an administrative charge of
discrimination to the resolution of this action.
329 F.R.D. at 621 (emphasis added).
Here, the parties agree that the operative date at issue is September 18, 2014, which is 300
days before the earliest date that a named Plaintiff filed an administrative charge of discrimination
(Dkt. #16 at p. 9; Dkt. #17 at p. 7). Thus, September 18, 2014, is the start of the tolling period.
However, Defendant argues the original Harris class definition was limited to individuals removed
from service on or after September 18, 2014 (Dkt. #16 at p. 9). Based on Plaintiff’s own pleadings,
Defendant argues he was removed from service as a conductor on July 29, 2013—the 2013 Work
Restriction—which was before the operative date and thus, he cannot be included in the Harris
class (Dkt. #16 at pp. 9–10; Dkt. #31 at ¶ 27). In contrast, Plaintiff argues the initial class definition
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in Harris included Plaintiff because he was subjected to an adverse employment action for reasons
related to a Fitness-for-Duty evaluation after September 18, 2014 (Dkt. #17 at p. 7). Specifically,
Plaintiff’s passed the 2015 Ishihara Color Vision Test before receiving the 2015 Letter, through
which Defendant refused Plaintiff’s request to retake a secondary color vision field test. Plaintiff
argues this decision on October 13, 2025, was a discrete adverse employment action directly related
to a Fitness-for-Duty evaluation (Dkt. #17 at p. 7).
The parties do not direct the Court to any case law suggesting that Defendant’s denial of
Plaintiff’s request to reconsider the 2013 Work Restriction is or is not an adverse employment
action. Thus, the Court, by accepting as true all well-pleaded facts in the Complaint and viewing
those facts in the light most favorable to Plaintiff, agrees with Plaintiff. Bowlby, 681 F.3d at 219.
Plaintiff was mistakenly ordered to take the 2015 Ishihara Color Vision Test and passed it (Dkt. #31
at ¶¶ 38–39). Based on this event, Plaintiff asked Defendant to have his medical information
reviewed, to let him retake the color vision field test, to reconsider the 2013 Work Restriction, and
to reinstate him as a conductor (Dkt. #31 at ¶ 40). Because Defendant denied these requests after
September 18, 2014, Plaintiff suffered an adverse employment action, as he alleges (Dkt. #31 at pp.
30–32).
Therefore, Plaintiff’s ADA disability discrimination claim was tolled through this initial
putative class definition.
B. Although he was initially a member of the Harris class, Plaintiff was
unambiguously excluded from the revised class definition.
Second, the Court must determine if Plaintiff was included under the revised class
definition in Harris, as certified, thereby tolling his ADA claims until the Harris class was
decertified on March 24, 2020. 953 F.3d at 1039. As stated before, the Harris district court certified
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a class of plaintiffs including: “[a]ll individuals who have been or will be subject to a fitness-for-
duty examination as a result of a reportable health event at any time from September 18, 2014, until
the final resolution of this action.” 329 F.R.D. at 628. Plaintiff’s inclusion in the Harris class under
American Pipe hinges on whether he was “subject to a fitness-for-duty examination” that occurred
“as a result of a reportable health event.” Harris, 329 F.R.D. at 628; American Pipe, 414 U.S. at 554.
Zaragoza is instructive to the Court’s analysis. See 112 F.4th at 321. In that case, the Fifth
Circuit considered whether an employee’s failure to pass an Ishihara color vision test determined
that employee’s inclusion in the Harris class. Id. at 319. The Fifth Circuit held the plaintiff’s first
instance of failing the Ishihara color vision test “met the definition of a ‘reportable health event’”
under the Harris class definition. Id. at 321. The secondary light cannon test was therefore a
“fitness-for-duty examination as a result of a reportable health event,” and not the “reportable
health event” itself. Id. Unlike Plaintiff, the plaintiff in Zaragoza failed both the Ishihara test and
the secondary vision test in 2016—almost two years after the tolling period began on September
18, 2014, for the Harris class; therefore, the plaintiff in Zaragoza was included in the Harris class
definition and enjoyed the tolling of his claims. Id.
Here, Defendant argues Plaintiff was not subject to a fitness-for-duty examination as a
result of a reportable health event after September 18, 2014 (Dkt. #16 p. 11). Specifically,
Defendant contends that when Plaintiff failed the 2013 Ishihara Color Vision Test, Defendant
imposed the 2013 Work Restriction, which was a the permanent, involuntary removal of Plaintiff
from his job as a conductor (Dkt. #16 at p. 11). Thus, as Defendant asserts, because Plaintiff’s
removal from service as a conductor on July 29, 2013 occurred prior to the start of the tolling
period—September 18, 2014—Plaintiff is excluded from the Harris class as certified (Dkt. #16 at
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p. 11). In contrast, Plaintiff contends that the 2015 Ishahara Color Vision Test he passed was the
“reportable health event” at issue, as it indicated a new diagnosis of a possible vision change (Dkt.
#17 at p. 10). Plaintiff argues that as a result of this event he was subject to a new Fitness-for-Duty
“decision” on October 13, 2015, which is when Defendant determined the 2013 Work Restriction
would remain in place (Dkt. #17 at p. 11). Because this “decision” occurred after September 18,
2014, Plaintiff argues “his claims were tolled from the time they accrued in 2015 until the Harris
class was decertified by the [Eighth] Circuit on March 24, 2020”—meaning his charge of
discrimination, which was filed less than a month after the Harris class was decertified, was timely.
(Dkt. #17 at p. 11).
In its reply, Defendant directs the Court to the phrase “fitness-for-duty examination” as
used in the narrowed Harris class definition (Dkt. #18 at p. 2). Defendant emphasizes that the court
that certified the Harris class did not use the phrase “fitness-for-duty decision,” as Plaintiff now
ask the Court to use, but instead used the term “examination” (Dkt. #18 at p. 2). Moreover,
Defendant’s own Medical Rules includes a section titled “Health and Medical Services Fitness-
for-Duty Decisions,” which states: “[a]fter a Fitness-for-Duty evaluation is complete, Health and
Medical Services determines if the employee/applicant is medically and functionally able to safely
perform his/her job and make the following designations: Fit for Duty, Fit For Duty – with
Restrictions, or Not Fit for Duty” (Dkt #31 at p. 23) (citation modified).
To begin with its analysis, given that Plaintiff previously failed the 2013 Ishihara Color
Vision Test which triggered a secondary test and the 2013 Work Restriction, the Court finds that
his passing the 2015 Ishihara Color Vision Test, even if it was mistakenly administered, could be
considered as a “reportable health event” (Dkt. #31 at ¶¶ 38–39). See Zaragoza, 112 F.4th at 321.
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However, unlike the Zaragoza plaintiff who failed two tests—first, the Ishihara test, which was the
“reportable health event,” followed by, the light cannon test, being the “fitness-for-duty
examination”— Plaintiff never underwent a “fitness-for-duty examination” or any secondary
color-vision test that was triggered by the 2015 Ishihara Color Vision Test any time after
September 18, 2014. See Zaragoza, 112 F.4th at 321. Indeed, after Plaintiff passed the 2015 Ishihara
Color Vision Test, marking the “reportable health event,” he asked Defendant to let him take a
secondary color vision field test, which could have been a “fitness-for-duty examination,” but
Defendant refused this request (Dkt. #31 at ¶¶ 38–40). Instead, Defendant advised Plaintiff the
2015 Ishihara Color Vision Test was “done in error,” and he “should not have been allowed to
take the FRA Certification vision test, since [he was] given permanent work restrictions by
[Defendant] in 2013” (Dkt. #31 at p. 31). The 2015 Letter communicated that Defendant was
denying Plaintiff’s request to retake the color vision field test and that Plaintiff will “continue to
have permanent work restrictions that [he] not do jobs that require accurate identification of
colored train signals, based on [his] failure of a Color Vision Field Test in 2013” (Dkt. #31 at p. 31).
The Court agrees with Defendant that Plaintiff cannot use evaluation and decision
interchangeably. Defendant’s Medical Rules draw a distinction between a Fitness-For-Duty
Evaluation and a Fitness-For-Duty Decision (Dkt. #31 at pp. 20–23). Notably, an “examination”
is included as a potential requirement under a fitness-for-duty evaluation, while a fitness-for-duty
decision is defined as Defendant’s Health and Medical Services determining if an employee is
medically and functionally able to perform their job after a fitness-for-duty evaluation (Dkt. #31 at
pp. 20–23).
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Moreover, the plaintiffs in the Harris class proposed the narrower definition of the revised
class, which used the word “examination” rather than “evaluation” as in the first definition. See
DeFries v. Union Pac. R.R. Co., 104 F.4th 1091, 1102 (9th Cir. 2024) (analyzing Harris), cert. denied,
145 S. Ct. 1426 (2025). Defendant’s Medical Rules were “incorporated by reference into the class
definition,” which was narrowed to correspond to a smaller list of relevant individuals identified
by Defendant in discovery. Id. at 1102, 1105. To read fitness-for-duty “examination” and fitness-
for-duty “decision” interchangeably would broaden the definition of the revised Harris class in
contrast to the way it was originally narrowed by the Harris plaintiffs. The Court finds that while
Plaintiff may have undergone a reportable health event when he passed the 2015 Ishihara test, this
did not trigger a secondary vision test like in Zaragoza, and Plaintiff was never subjected to a fitness-
for-duty examination. Further, the 2015 Letter attached to Plaintiff’s Complaint is clear—this was
not a secondary examination or a subsequent evaluation made by Defendant. Indeed, Plaintiff was
already restricted from working as a conductor when he took the 2015 Ishihara Color Vision Test
and this would continue, meaning the 2015 Letter merely conveyed that Plaintiff’s status quo
would continue.
Plaintiff was therefore excluded from the revised Harris class definition as initially certified
on February 5, 2019. 329 F.R.D. at 628. Therefore, his disability discrimination claims were only
tolled from the time they accrued until February 5, 2019. Harris, 329 F.R.D. at 628; see also
American Pipe, 414 U.S. at 554. As a result, Plaintiff’s 300-day window to seek the proper
administrative remedies for this cause of action closed on December 2, 2019. See 42 U.S.C. § 12117.
As previously noted, Plaintiff did not file his Charge of Discrimination until April 10, 2020
(Dkt. #13 at ¶ 41; Dkt. #31 at ¶ 52). Consequently, because Plaintiff was excluded from the certified
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class in Harris on February 5, 2019, and he failed to timely comply with the ADA’s administrative
prerequisites prior to commencing this action, Plaintiff’s claims under the ADA are time-barred.
Accordingly, because Plaintiff’s disparate treatment claims are time-barred, the Court
finds that Plaintiff has failed to state a plausible claim for relief under Rule 12(b)(6), and
Defendant’s Motion should therefore be GRANTED.
II. Remaining Issues
Defendant raises the following additional arguments in its Motion: (1) Plaintiff failed to
exhaust his administrative remedies (Dkt. #16 at pp. 6–8); and (2) Plaintiff fails to state a claim
based upon an “actual” or “record of” a disability (Dkt. #16 at pp. 13–15). These arguments are
now moot. The Court has determined that Plaintiff’s disability discrimination claims are time-
barred under the ADA, so any argument related to exhausting administrative remedies and
pleading deficiencies in those claims does not affect the Court’s determination.
CONCLUSION
It is therefore ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Amended
Complaint (Dkt. #16) is hereby GRANTED and the case is hereby DISMISSED with prejudice.
All pending motions not previously addressed by the Court are DENIED as moot, and the
Clerk is directed to CLOSE this civil action.
IT IS SO ORDERED.
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