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Kosmicki v. BNSF Railway Co.: EMPLOYMENT - legit, non-discriminatory reasons for discharge; not pretext for disability discrimination

1The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
United States Court of Appeals
No. 08-1511
Daniel Kosmicki, *
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Burlington Northern & Santa Fe *
Railway Company, *
Appellee. *
Submitted: September 24, 2008
Filed: October 27, 2008
Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
ARNOLD, Circuit Judge.
Daniel Kosmicki brought an action for reinstatement and back pay under the
Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213, claiming that his
employer, Burlington Northern & Santa Fe Railway Company (BNSF), terminated his
employment because BNSF regarded him as disabled. The district court1 granted
BNSF's motion for summary judgment, holding that the company articulated
legitimate, nondiscriminatory reasons for Mr. Kosmicki's termination and that
Mr. Kosmicki failed to offer evidence that BNSF's stated reasons were a pretext for
discrimination. We affirm.
We review the district court's grant of summary judgment de novo. See Green
v. Franklin Nat'l Bank of Minneapolis, 459 F.3d 903, 910 (8th Cir. 2006). "When the
evidence, viewed in the light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law, summary judgment is appropriate." Fitzgerald v. Action, Inc., 521 F.3d 867,
871 (8th Cir. 2008); see Fed. R. Civ. P. 56(c).
We apply the familiar McDonnell Douglas burden-shifting framework in ADA
cases. Dovenmuehler v. St. Cloud Hosp., 509 F.3d 435, 439 (8th Cir. 2007); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under this
framework, Mr. Kosmicki was first required to make out a prima facie case by
proving that he was disabled within the meaning of the ADA, that he was qualified to
perform the essential functions of his job, and that he suffered an adverse employment
action because of his disability. See Henderson v. Ford Motor Co., 403 F.3d 1026,
1034 (8th Cir. 2005).
Even though Mr. Kosmicki was not actually disabled, he could still qualify as
being disabled under the ADA if BNSF "regarded" him as being disabled. 42 U.S.C.
12102(2)(C). Mr. Kosmicki asserts that he made out a prima facie case by showing
that BNSF erroneously believed that he had a disabling brain injury, that he did not
have a brain injury and could perform the essential functions of his job as a train
conductor and an engineer (train operator), and that he was terminated. A "minimal
evidentiary showing satisfies a plaintiff's burden of production" at the prima facie
stage, Pope v. ESA Services, Inc., 406 F.3d 1001, 1007 (8th Cir. 2005), and we
assume, without deciding, that Mr. Kosmicki met this burden, see Montes v. Greater
Twin Cities Youth Symphonies, 540 F.3d 852, 857 (8th Cir. 2008).
Once an employee presents a prima facie case of discrimination, the employer
must articulate a legitimate, nondiscriminatory reason for the discharge. See
Henderson, 403 F.3d at 1034. Here BNSF produced evidence that it terminated
Mr. Kosmicki because he failed to provide BNSF complete factual information
regarding his treatment and medication on a medical screening questionnaire and
because he worked while taking prescription drugs that affected his cognitive abilities.
Both of these acts are contrary to company policy and thus provide a legitimate reason
for termination. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir.
1999) (en banc), cert. denied, 528 U.S. 818 (1999).
Once an employer presents such evidence, the burden shifts back to the
employee to produce evidence that the employer's stated reasons are a pretext for
discrimination. See id. To meet his burden, Mr. Kosmicki must discredit BNSF's
stated reasons for terminating him and show circumstances raising a reasonable
inference that the real reason for his discharge was his perceived disability. See
Gilbert v. Des Moines Area Community College, 495 F.3d 906, 918 (8th Cir. 2007).
After a careful review of the record, we conclude that Mr. Kosmicki did not meet his
To show pretext, Mr. Kosmicki must first point to evidence that raises an
inference that BNSF's stated reasons "did not actually motivate [its] decision" to
terminate him. E.E.O.C. v. Wal-Mart Stores, Inc., 477 F.3d 561, 570 (8th Cir. 2007).
He attacks BNSF's contention that he was terminated for dishonesty by asserting that
BNSF knew that he was taking a drug called Risperdal since his psychiatrist had
notified the company when he originally prescribed the drug for Mr. Kosmicki.
Mr. Kosmicki, however, did not notify BNSF that he continued to take Risperdal or
that he had been prescribed other drugs, namely Ativan and Lexapro. More
importantly, Mr. Kosmicki failed to provide complete and factual information
regarding his prescriptions in connection with a medical screening and on a medical
history form. In fact, with respect to the medical history form there is evidence that
Mr. Kosmicki did not merely forget: He originally made an entry in the section for
prescribed medications and then crossed the entry out.
There is also evidence to support BNSF's assertion that Mr. Kosmicki was
terminated for violating the company's written drug and alcohol policy. Mr. Kosmicki
admitted that an employee violates that policy by taking a prescription medication that
"has an adverse effect on the employee's ability to work safely." During the months
before his discharge, Mr. Kosmicki was taking at least one and sometimes two of three
prescription drugs, Ativan, Risperdal, and Lexapro, all of which can cause both
sleepiness and dizziness, according to a medical expert who testified at his termination
hearing. Mr. Kosmicki himself admitted to BNSF in August that his medications
caused him to fail simulator tests that BNSF administered to evaluate his ability to
operate a train. After this admission, BNSF obtained records of Mr. Kosmicki's
prescription drugs. These records, combined with Mr. Kosmicki's admission as to the
drugs' effect on his performance, support BSNF's statement that it discharged him
because he took medication that adversely affected his ability to perform his job
safely, and Mr. Kosmicki has offered no evidence to discredit that statement.
Even if Mr. Kosmicki had shown that BNSF's stated reasons for his discharge
were not its true reasons, he did not meet his burden of producing evidence that would
permit a reasonable jury to find that BNSF terminated his employment because it
regarded him as disabled. At most, Mr. Kosmicki is inviting speculation about the
reason for his termination. It is true that Mr. Kosmicki's supervisor stated that he
thought that Mr. Kosmicki, who had at one time been a boxer, might have suffered
some type of head injury as a result, and there was other evidence tending to show that
BNSF supervisors suspected that Mr. Kosmicki had suffered brain injuries. But this
evidence cannot raise an inference in a reasonable mind that this was the real reason
for Mr. Kosmicki's termination.
We therefore affirm the judgment of the district court.


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