Appeals court rules Union Pacific did not discriminate against Omaha woman fired in 2006

Appeals court: Union Pacific did not discriminate

OMAHA, Neb. — A federal court rejected the appeal on Tuesday of an Omaha woman who sued Union Pacific Railroad Co., claiming that she was fired as a train dispatcher in 2006 because of discrimination.

A panel of the 8th U.S. Circuit Court of Appeals wrote that the reason Kimberly Norman was terminated was her failure to submit a required release form after a long-term disability leave.

Norman, who is black, had claimed disability, race and gender discrimination in the lawsuit. She said she had performed her job in an exemplary manner, but was fired following hospitalization and absences due to irritable bowel syndrome that developed after difficult pregnancies. Norman was placed on unpaid leave in 2004 and required to submit to an independent medical examination.

She said in her lawsuit she did not know the evaluation was a mental health exam, and that Union Pacific used it to change her diagnosis and disability to a mental health condition, rather than a physical one.

Based on the mental health diagnosis, Norman’s long-term disability benefits were terminated, reinstated upon appeal, then terminated again, the lawsuit said.

Norman’s lawsuit also said the railroad refused to make reasonable accommodations for her disability and denied her the opportunity to interview for other positions, while allowing such accommodations for a white, male employee who suffered from a mental illness.

The Nebraska Equal Opportunity Commission, which reviewed Norman’s complaint, determined there was no cause to fire her, and the federal EOC gave her the green light to sue. Norman had sought damages for lost wages and benefits, as well as an award of punitive damages.

Omaha-based Union Pacific denied discriminating against Norman and had said she was fired because she did not submit a doctor-signed, return-to-work release form, as required by the company. A lower federal court found that Norman had not submitted the form, and decided in Union Pacific’s favor.

The 8th Circuit panel upheld that ruling. As for the colleague she referenced in her lawsuit as receiving preferential treatment, the appeals court wrote, “The different disciplines result from compliance (or noncompliance) with the company’s instructions, rather than discrimination based on race or gender.”

“We feel the judge’s decision was the proper one, given the facts of the case,” said Union Pacific spokesman Mark Davis.

An attorney for Norman, Jerry Fennell of Omaha, said he could not yet comment on whether Norman would appeal further.

Online:

8th Circuit Court of Appeals: www.ca8.uscourts.gov/index.html