Noel Francisco U.S. Solicitor General Noel Francisco. (Photo: Diego M. Radzinschi / ALM)

The Trump administration’s U.S. Justice Department is urging the Supreme Court to vacate a disability discrimination ruling that the Equal Employment Opportunity Commission won in a case against BNSF Railway Co., marking the latest instance of the government switching its position at the high court.

U.S. Solicitor General Noel Francisco told the justices that a BNSF Railway employee named Russell Holt was not discriminated against when the company declined to hire him because of his disability. The U.S. Court of Appeals for the Ninth Circuit had ruled in Holt’s favor in the case EEOC v. BNSF Railway.

“Although the EEOC took the position below that it was entitled to summary judgment on the issue of discrimination, the United States now agrees with petitioner that summary judgment in favor of the EEOC was inappropriate,” Francisco said in a filing at the Supreme Court late Thursday.

The government’s brief marked the latest example of the Trump administration switching up its legal position in a case at the high court.

No EEOC lawyers appeared on the brief, a sign that the two agencies were at odds over the Justice Department’s repudiation of the Ninth Circuit’s ruling. The Justice Department this term is expected to side against the EEOC in a trio of cases that confront the scope of federal civil rights protections for gay, lesbian and transgender workers.

Gibson, Dunn & Crutcher partner Andrew Tulumello, a lawyer for BNSF, declined to comment Thursday about the Justice Department’s filing.

Holt had applied and interviewed for the position of senior patrol officer in Seattle. BNSF extended an offer of employment conditioned on the outcome of a background investigation and a medical evaluation. After the initial physical exam, which the railway company paid for, BNSF asked Holt for an MRI, at his own cost, because of a history of a disc extrusion in his back.

Holt’s insurance would not cover the MRI, and Holt did not have the $2,500 to cover the cost. Because he did not provide the additional medical information, BNSF treated Holt as having declined the conditional job offer.

A federal district court granted summary judgment on liability to the EEOC, which had sued BNSF in 2014 in the Western District of Washington.

“Mr. Holt was a seasoned law enforcement  officer who had never missed work because of a four-year old back injury. It is unfortunate that BNSF chose to ignore  Mr. Holt’s experience and qualifications in his chosen profession, and instead  forced him to prove that he would not be injured in the future,” William Tamayo, the head of the EEOC’s San Francisco regional office, said in a statement at the time.

The court concluded that withdrawal of Holt’s job offer “when he failed to supply an updated MRI at his own cost constituted facial ‘discrimination.’” The trial judge determined that BNSF had engaged in discrimination “because of Mr. Holt’s ‘disability,’” The court said he met “the requirement of ‘being regarded as having [a physical] impairment’” because he admitted he had a back injury and provided an earlier MRI showing the disc extrusion and BNSF halted the hiring process in response.

Francisco said that “a policy of conditioning job offers on ‘completion of the medical screening process’ is a facially neutral policy. Because [BNSF's] decision to treat Holt as having declined the offer was based on his failure to complete the medical screening process—not on disability—that decision did not violate the [Americans With Disability Act].”

The U.S. Court of Appeals for the Ninth Circuit affirmed the ruling in favor of the EEOC but only under a different theory, according to Francisco: that the discriminatory act was BNSF’s decision to require Holt to pay for the follow-up MRI. “The record, however, does not support that theory,” Francisco told the justices.

Francisco urged the high court to grant BNSF’s petition, vacate the Ninth Circuit’s decision and remand the case for further proceedings in light of the government’s new position.

Tulumello of Gibson Dunn argued that the Ninth Circuit decision conflicts with the holdings of at least six other circuits. “Those circuits have squarely held that an employer does not per se ‘regard’ a person as disabled when the employer requires an individualized medical examination to resolve uncertainty about the employee or applicant’s medical condition,” he wrote in BNSF’s petition.

In addition to Francisco, two other DOJ lawyers appeared on the government’s brief: Eric Dreiband, the former Jones Day partner who is the Senate-confirmed leader of the civil rights division; and Thomas Chandler, a career appellate lawyer who’s now acting chief of the civil rights division’s appellate team. Chandler formerly served as chief of the Federal Communications Commission’s Disability Rights Office.

The Justice Department changed prior administration positions in several major high court cases over the past two years, including one involving the constitutionality of union “fair share” fees and another concerning the availability of class actions in worker arbitration agreements under the National Labor Relations Act.

 

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