Railroad Legal Issues and Resources (2015)

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14 6. Effect of an STB Notice of Interim Trail Use as a Taking 205 In Ellamae Phillips Co. v. United States,40 the Federal Circuit held that whether there is a taking “rest[s] on the scope, not abandonment, of the easement, as the taking of a reversionary interest in a right-of-way is compensable regardless [of] whether the right-of-way has been abandoned.”41 Article 206 7. Elements of Liability in Takings Claims based on the Trails Act 206 An article in the Ecology Law Quarterly analyzes the main points of Preseault, supra, Part I.E.3, discusses the proceedings that followed the Supreme Court’s decision, summarizes the regulatory framework and the STB’s involvement in the process of railbanking, and identifies issues to consider when litigating takings claims under the Trails Act.42 II. AMERICANS WITH DISABILITIES ACT 209 A. Introduction 209 The Americans with Disabilities Act (ADA) was enacted to “provide a clear and comprehensive national mandate for elimination of discrimination against individuals with disabilities”43 in employment, transportation, public accommodations, communications, and government activities.44 Section B discusses provisions of the ADA that apply to transportation by rail. Section C discusses what is required for a prima facie case of employment discrimination because of a disability. Section D addresses the meaning of a disability under the Act, including before and after the 2008 amendments to the Act. Section E reviews issues concerning the feasibility of alterations to make facilities accessible to rail patrons. Sections F and G summarize articles that discuss the ADA Amendments Act of 2008 and transportation and civil rights. 40 564 F.3d 1367 (Fed. Cir. 2009). 41 Id. at 1372. 42 Cecilia Fex, The Elements of Liability in a Trails Act Takings: A Guide to the Analysis, 38 ECOLOGY L.Q. 673, 682, 685–700 (2011). 43 Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. See also ADA.gov., Americans with Disabilities Act of 1990 (as amended), available at http://www.ada.gov/pubs/adastatute08.htm (last accessed Mar. 31, 2015). 44 United States Department of Labor, Disability Resources, Americans with Disabilities Act, available at http://www.dol.gov/dol/topic/disability/ada.htm (last accessed Mar. 31, 2015).

15 Statute 209 B. Americans with Disabilities Act 209 The ADA includes provisions that apply to transportation by rail; for example, 42 U.S.C. §§ 12142 and 12162, which are discussed in this subpart. Railroad employees are protected under the employment section of the ADA.45 Cases 211 C. Prima Facie Case of Employment Discrimination Under the ADA 211 As stated in Norman v. Union Pacific R.R. Co.,46 a prima facie case for discrimination under the ADA requires proof of an ADA-qualifying disability, qualifications to perform the essential functions of the employee’s position with or without reasonable accommodation, and an adverse employment action because of the disability. D. Disability Within the Meaning of the ADA 212 1. Physical or Mental Impairment that Substantially Limits One or 212 More Major Life Activities In EEOC v. Burlington Northern & Santa Fe Ry. Co.,47 the Tenth Circuit held, inter alia, that when “an individual cannot perform a specific required task in a particular position or positions but can perform other tasks, he is not considered excluded from a ‘class of jobs.’”48 2. A Record of or Having Been Regarded as Having an Impairment 213 In Coale v. Metro N. R.R. Co.,49 a federal district court in Connecticut held that the plaintiff failed to provide any evidence that any railroad employees regarded his injury as an impairment that substantially limited a major life activity. 45 42 U.S.C. § 12112(a) (2014) (“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”) 46 606 F.3d 455, 459 (8th Cir. 2010). 47 211 Fed. Appx. 682 (10th Cir. 2006) (citation omitted). 48 Id. at 686 (quoting EEOC v. Burlington N. & Santa Fe Ry. Co., 406 F. Supp. 2d 1228, 1237 (W.D. Okla. 2005)). 49 2014 U.S. Dist. LEXIS 31764, at *1, 41 (D. Conn. Mar. 12, 2014).

16 3. Definition of Disability Before and After the ADA Amendments 215 In Gaus v. Norfolk S. Ry. Co.,50 a federal district court in Pennsylvania held that with respect to the railroad’s actions prior to January 1, 2009, and the ADA amendments, Gaus did not have a disability because Norfolk Southern did not regard Gaus as having an impairment that substantially limited one or more major life activities.51 However, for the period after January 1, 2009, the court held that a reasonable jury could find that Gaus could have been disabled under the “regarded as” test of the ADA as amended and, thus, denied Norfolk Southern’s motion for summary judgment.52 E. Feasibility of Accessibility Modifications for Rail Patrons 217 1. Alteration of Two Subway Stations Requiring the Installation 217 of Elevators In Disabled in Action of Pennsylvania v. S.E. Pennsylvania Transp. Authority,53 a Pennsylvania federal district court held in regard to the installation of elevators that technical feasibility rather than economic feasibility determined whether a facility is being made accessible to disabled patrons. 2. Feasibility of Accessibility Modifications for a Port Authority Station 218 In HIP, Inc. v. The Port Authority of New York and New Jersey,54 concerning renovations to a train station by the Port Authority, the court held that neither side was entitled to summary judgment, because the court did not know whether Jersey City, the property owner, would cooperate by providing the needed property to the Port Authority. Articles 219 F. ADA Amendments Act of 2008 219 A law review article discusses the ADA Amendments Act of 2008 (ADAAA), which broadened the definition of disability in response to Supreme Court decisions that had narrowed the definition beyond the original intent of Congress but argues that the interpretation of 50 2011 U.S. Dist. LEXIS 111089, at *1, 45 (W.D. Penn. Sept. 28, 2011). 51 Id. at *45. 52 Id. at *60–61. 53 655 F. Supp. 2d 553, 566, 567 (E.D. Pa. 2009), aff’d, 635 F.3d 87, 98 (3d Cir. 2011). 54 693 F.3d 345, 354 (3d Cir. 2012).