BNSF Engineer Didn’t Show Sleep Apnea Drove Firing Decision

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By Patrick Dorrian

BNSF Railway doesn’t have to face trial on a locomotive engineer’s allegations that his discharge for attendance issues actually was prompted by his obstructive sleep apnea, a federal appeals court ruled ( Alamillo v. BNSF Ry. Co. , 2017 BL 299042, 9th Cir., No. 15-56091, 8/25/17 ).

Antonio Alamillo worked for BNSF as an “extra board,” or call-in, engineer. He later switched to a regular schedule when his “recurrent absenteeism” landed him in hot water with the railway company, the U.S. Court of Appeals for the Ninth Circuit said. Alamillo failed to show that BNSF’s explanation for discharging him was a pretext for disability bias under California’s Fair Employment and Housing Act, the court held.

The Aug. 25 decision illustrates that employees who don’t mention that they have or may have a medical condition until after their employer has begun considering taking disciplinary action against them for work-rule violations will generally have a hard time proving disability discrimination. That may be so even where there is evidence of disability-related remarks by the employer.

Here, Alamillo wasn’t diagnosed with OSA until after he had accumulated the unexcused absences for which he was fired, Judge Gary Feinerman said. BNSF’s labor relations director acknowledged the possibility that Alamillo’s OSA may have contributed to his missing calls to report to work, but refused to change her recommendation that he be fired. That action supported rather than undercut the company’s justification, Feinerman said.

The director noted that Alamillo didn’t seek medical assistance until after he faced dismissal. Viewed in context, the director’s comment reinforces the conclusion that BNSF’s reliance on Alamillo’s poor attendance history in firing him was “sincere,” the court wrote.

The court rejected Alamillo’s argument that his absences were caused by his OSA and should be considered part of his FEHA-protected disability. He presented no evidence that the missed calls and absences that resulted in his termination were caused by his OSA, it said. Moreover, he could have taken easy steps to make sure he didn’t miss calls to report to work, including switching earlier to a regular schedule rather than continuing to serve as a call-in engineer or setting his alarm for 5:00 am, when calls to call-in engineers typically were made, the court said.

Accommodation, Interactive Process Claims Fail

Alamillo’s contention that BNSF failed to accommodate his disability likewise was unsupported, the court concluded. Because he couldn’t advance his failure-to-accommodate claim, the court said, he also couldn’t prove that BNSF failed to engage in the required interactive process for determining if a worker can be accommodated.

His first proposed accommodation—being switched from call-in status to a regular schedule—actually was granted, the court said. Alamillo’s second and third accommodation requests in effect asked that his prior attendance problems be excused. But under Equal Employment Opportunity Commission guidance, reasonable accommodations are always prospective, and California courts have ruled that FEHA doesn’t require employers to give employees a “second chance” to control a disability “in the future,” the Ninth Circuit said.

Judges Milan D. Smith Jr. and N.R. Smith joined the opinion.

Myers Law Group APC represented Alamillo. Atkinson Andelson Loya Ruud & Romo represented BNSF.

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at; Chris Opfer at

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