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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                          Fifth Circuit

                                                                         FILED
                                   No. 17-20113
                                                                    February 15, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
FLORA NALL, as Personal Representative of the Estate of Michael Nall,
substituted in place and stead of Michael Nall, deceased,

               Plaintiff – Appellant,

v.

BNSF RAILWAY COMPANY,

               Defendant – Appellee.




                   Appeal from the United States District Court
                   for the Southern District of Texas—Houston
                                No. 4:14-CV-2819


Before ELROD, COSTA, and HO, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
         The panel opinion, special concurrence, and dissent previously issued in
this case are withdrawn, and the following opinions are substituted in their
place.
         Michael Nall sued his employer, BNSF Railway Company, for disability
discrimination and retaliation after he was diagnosed with Parkinson’s disease
and later placed on medical leave by BNSF. Because there is a fact issue as to
whether BNSF discriminated against Nall, we REVERSE the grant of
summary judgment to BNSF on Nall’s disability discrimination claim and
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                                 No. 17-20113
REMAND for further proceedings. Because Nall fails to identify a material
fact issue regarding his retaliation claim, we AFFIRM the district court’s
judgment on this claim.
                                       I.
      Nall started working as a trainman with BNSF in 1973. In 2010, he was
diagnosed with Parkinson’s disease. At this time, BNSF provided Nall and his
doctor with a medical status form listing the job duties of a trainman, including
items such as operating track switches, applying and releasing hand brakes,
monitoring track conditions, inspecting train cars and equipment, relaying
various types of signals, and controlling train speed. After Nall’s neurologist
cleared him to continue working, BNSF’s doctor revised the form to instead
contain a list of switchman duties different from the trainman duties on the
previous form. The new list added items such as “mak[ing] quick hand and leg
movements,” “rid[ing] on moving cars while holding onto a ladder,” and
“maintaining good balance and steadiness of stance/gait.”
      Nall continued to work with BNSF for the next year and a half without
incident. Then, in 2012, BNSF gave Nall a letter stating that a co-worker had
voiced concern about Nall’s ability to safely perform his job duties. Nall was
placed on medical leave and required to obtain a release from the BNSF
medical department to return to work.
      To begin the evaluation process, BNSF requested a copy of the results of
a physical examination from Nall’s neurologist that would show the doctor’s
awareness of BNSF’s concerns and the results of any diagnostic tests
performed.    Nall complied.     He submitted to BNSF a report from his
neurologist recommending further evaluations by a neuropsychologist and a
physical therapist. BNSF requested that Nall complete these evaluations.
Nall again complied. The neuropsychologist reported that he did not see any
evidence of brain damage after evaluating Nall and placed Nall’s skill level at
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                                  No. 17-20113
the low end of the average range. The occupational therapist concluded that
Nall was able to meet the demands of his position at BNSF; suggested that
Nall be cautious with balance situations; and added that Nall was able to
perform balance tasks safely.
       BNSF found some of the statements in these reports “concerning” and
kept Nall on leave. BNSF emphasized that its rail yard employees “need[ ] to
be able to make quick decisions and take quick actions in order to work safely”
and     that    “[b]alance   is   essential    to   working     safely    as    a
brakeman/switchman/conductor.” In addition, BNSF provided Nall with five
pages of photographs depicting some of his job duties and asked for his
neurologist to review them and return a statement to BNSF regarding Nall’s
ability to complete the depicted tasks.
       Dr. Joseph Jankovic, a neurologist and the director of the Parkinson’s
Disease Center and Movement Disorders Clinic at the Baylor College of
Medicine, reviewed the photographs. He concluded that Nall was able to
perform the job duties shown in the photographs safely and was “in very good
condition with balance and concentration in order.” BNSF next requested that
Nall perform a field test. During the test, Nall successfully completed all of
the requested tasks, including taking instructions via radio, climbing on and
off equipment, and walking on uneven surfaces. The physical therapist who
conducted the test wrote a report in which he noted that Nall had decreased
balance when reaching, a resting tremor, and slow and jerky movement
patterns. Although not mentioned in the report, two BNSF employees later
testified in depositions that, during the test, Nall engaged in conduct that
violated two of BNSF’s “eight deadly decisions”—BNSF’s most serious safety
rules. BNSF informed Nall that, based on the results of the field test, he could
not return to work.


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                                     No. 17-20113
      A few months later, Nall filed a discrimination charge with the Equal
Employment Opportunity Commission (EEOC). He also sent a new medical
status form to BNSF showing that he could safely return to work. BNSF
responded that Nall was unable to return to work because of his field test
results. Nall sent another medical status form to BNSF, from another doctor,
clearing him to return to work, and a new BNSF doctor, Dr. Laura Gillis,
responded by classifying him as “permanently medically disqualified.” The
EEOC concluded its investigation and sent a letter to BNSF stating that it did
not agree with BNSF that Nall was a potential harm to himself or others or
that he was incapable of doing his job.             Indeed, the EEOC investigator
concluded that there was a violation of the Americans with Disabilities Act
(ADA).
       Nall and his wife filed the instant lawsuit. During the litigation process,
Nall kept trying to return to work. BNSF conducted a second field test and
found that Nall was still unable to perform his job duties safely. Several
months     later,   Nall    submitted     records    to   BNSF     showing     that    his
neuropsychological testing results were “essentially the same as they were in
2012.” BNSF’s decision remained the same.
      Against BNSF, Nall alleged disability discrimination and retaliation
under the ADA and Texas Commission on Human Rights Act (TCHRA). 1
BNSF maintains that it did not discriminate against Nall because Nall was
unsafe to return to work throughout the relevant time period. The district
court held that Nall presented no direct evidence of discrimination, was not



      1 Nall also alleged age discrimination and brought a retaliation claim under the Age
Discrimination in Employment Act (ADEA). However, on appeal, Nall states that he “no
longer wishes to pursue his age discrimination claims.” Thus, he has waived any arguments
under the ADEA. See United States v. Conn, 657 F.3d 280, 286 (5th Cir. 2011) (“‘[W]aiver is
the intentional relinquishment of a known right,’ and ‘waived errors are entirely
unreviewable.’” (quoting United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006))).
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                                      No. 17-20113
qualified for his position as a trainman, failed to present evidence of pretext,
and was precluded from succeeding on his claims because BNSF is entitled to
a “direct threat” defense. Nall timely appealed.
                                            II.
       We review de novo a district court’s grant of summary judgment, viewing
all facts and evidence in the light most favorable to the nonmoving party.
Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016).
“Summary judgment is only appropriate if the movant has shown that there is
no genuine issue as to any material fact such that the movant is entitled to
judgment as a matter of law.” Id.
       “An issue of material fact is genuine if a reasonable jury could return a
verdict for the nonmovant.          In reviewing the evidence, we must draw all
reasonable inferences in favor of the nonmoving party, and avoid credibility
determinations and weighing of the evidence. In so doing, we must disregard
all evidence favorable to the moving party that the jury is not required to
believe.” Sandstad v. CB Ricard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002)
(citations omitted).
                                            III.
       “In employment discrimination cases, a plaintiff may present his case by
direct or circumstantial evidence, or both.” 2 Id. If the plaintiff produces direct
evidence that discriminatory animus played a role in the employer’s adverse
employment decision, the burden of persuasion shifts to the defendant who
must prove that it would have taken the same action despite any
discriminatory animus.        Id.    If the plaintiff only produces circumstantial


       2 “Because TCHRA ‘parallels the language of the ADA,’ Texas courts follow ADA law
in evaluating TCHRA discrimination claims.” Williams v. Tarrant Cty. Coll. Dist., 717 F.
App’x 440, 444–45 (5th Cir. 2018) (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 285–87
(5th Cir. 2004)). Except where we have noted otherwise, the following ADA analysis therefore
applies equally to Nall’s claims under the TCHRA. See id.
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                                  No. 17-20113
evidence of discrimination, the well-known burden-shifting analysis set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), guides our
inquiry. Id. The district court held that Nall neither presented direct evidence
of discrimination nor satisfied the circumstantial-evidence requirements of
McDonnell Douglas. We address both determinations.
                                        A.
      On appeal, Nall presents several comments by BNSF employees as direct
evidence of discrimination. First, right after the initial field test, Dana Dickey,
the BNSF field medical manager, allegedly told Nall that Nall was “never
coming back to work” and that “they were just sending [him] paper
work . . . to—you know, be nice.” Second, Dr. Gillis and BNSF’s manager of
clinical services, Carol Wilks, allegedly told Nall’s wife that “people with
Parkinson’s don’t get better.” Third, Dickey e-mailed Dr. Gillis regarding
Nall’s condition and whether BNSF should offer him a second field test and
said that they “have to have it all documented.” In response, Dr. Gillis noted
that there was a low likelihood that Nall’s situation would improve but that
they have to ask the questions. Fourth, despite Nall’s submission of several
medical status forms indicating his ability to work safely, Dr. Gillis and Dickey
repeatedly referenced only the first field test.
      The first two statements above—that BNSF was just sending Nall
paperwork to “be nice” and that “people with Parkinson’s don’t get better”—
were the only comments presented as direct evidence of discrimination to the
district court. As a result, these are the only statements we consider. See
United States v. Mix, 791 F.3d 603, 611–12 (5th Cir. 2015) (holding that
arguments not raised below are forfeited). We agree with the district court
that these two statements are insufficient to constitute direct evidence.
      If an inference is required for evidence to be probative as to an employer’s
discriminatory animus, the evidence is circumstantial, not direct. Sandstad,
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                                      No. 17-20113
309 F.3d at 897–98.         Here, the evidence that Nall provides requires an
inference to be probative as to any discriminatory animus. First, to find that
Dickey’s comments, said after the field test, are evidence of animus requires
the inference that Nall was “never coming back to work” because of Nall’s
disorder rather than his performance on the field test. Second, Dr. Gillis’s and
Wilks’s statements about people with Parkinson’s disease could simply be an
observation about the disorder.           To be evidence of animus, the comment
requires an inference that the irreversible nature of Parkinson’s disease was
the reason why Nall would not be returning to work. These comments do not
constitute direct evidence; they are circumstantial evidence which we may
consider only under McDonnell Douglas. Having so concluded, we move on to
the McDonnell Douglas framework. 3
                                             B.
       Under the McDonnell Douglas framework, Nall must first make out a
prima facie case of discrimination by showing that: (1) he has a disability or
was regarded as disabled; (2) he was qualified for the job; and (3) he was subject
to an adverse employment decision because of his disability. Williams v. J.B.
Hunt Transp., Inc., 826 F.3d 806, 811 (5th Cir. 2016). If he does, the burden
shifts to BNSF to articulate a legitimate, non-discriminatory reason for the
adverse employment action. Id. If BNSF satisfies its burden, the burden shifts
back to Nall “to produce evidence from which a jury could conclude that
[BNSF’s] articulated reason is pretextual.” Cannon, 813 F.3d at 590.




       3 Judge Costa’s observation in his concurrence that the McDonnell Douglas framework
can be inefficient and cumbersome is astute. However, as Judge Costa notes, Nall’s attempt
to prove his case by direct evidence relied only on comments by his supervisors. Beyond these
comments, which we have concluded are not direct evidence, Nall attempted to prove his case
using circumstantial evidence. Thus, because Nall presented only circumstantial evidence
on summary judgment, it does not appear that we have the liberty to analyze this case in the
streamlined manner that Judge Costa describes.
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                                       No. 17-20113
                                    1. Prima facie case
       Here, the district court concluded that Nall satisfied the first and third
elements of a prima facie case of discrimination but failed to show the second
element—that Nall was qualified for the job of a trainman. That element is
the focus of this appeal.
       “To be a qualified employee, [Nall] must be able to show that he could
either (1) ‘perform the essential functions of the job in spite of his disability,’
or (2) that ‘a reasonable accommodation of his disability would have enabled
him to perform the essential functions of his job.’” Id. at 592 (quoting EEOC
v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014)); see 42 U.S.C. § 12111(8).
Nall argues that he could perform the essential functions of his job. “A function
is ‘essential’ if it bears ‘more than a marginal relationship’ to the employee’s
job.” Cannon, 813 F.3d at 592 (quoting Chandler v. City of Dall., 2 F.3d 1385,
1393 (5th Cir. 1993), holding modified on other grounds as discussed in Kapche
v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002)). “[C]onsideration shall be
given to the employer’s judgment as to what functions of a job are essential,
and if an employer has prepared a written description before advertising or
interviewing applicants for the job, this description shall be considered
evidence of the essential functions of the job.” 42 U.S.C. § 12111(8).
       In this case, the parties agree that the question of whether Nall was a
qualified employee is directly related to the question of whether BNSF is
entitled to a “direct threat” defense. 4 An employer is entitled to a direct threat
defense if an employee poses a “significant risk to the health or safety of others
that cannot be eliminated by reasonable accommodation.” EEOC v. E.I. Du



       4 While the “direct threat” defense controls our analysis of Nall’s ADA claims, the
TCHRA does not contain analogous statutory language, we have not found any Texas case
law discussing the issue, and the parties did not brief it. Accordingly, the district court will
need to address this issue on remand.
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                                      No. 17-20113
Pont de Nemours & Co., 480 F.3d 724, 731 (5th Cir. 2007) (quoting 42 U.S.C.
§ 12111(3)); see also 42 U.S.C. § 12113(b). Whether an employer has properly
determined that a person poses a direct threat depends on “the objective
reasonableness of [the employer’s] actions.” Bragdon v. Abbott, 524 U.S. 624,
650 (1998) (“[C]ourts should assess the objective reasonableness of the views
of   health    care    professionals     without     deferring     to   their   individual
judgments[.]”). “The direct threat defense must be ‘based on a reasonable
medical judgment that relies on the most current medical knowledge and/or
the best available objective evidence,’ and upon an expressly ‘individualized
assessment of the individual’s present ability to safely perform the essential
functions of the job[.]’” Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 86 (2002)
(quoting 29 C.F.R. § 1630.2(r)); see also E.I. Du Pont, 480 F.3d at 731 (“The
employer must make an ‘individualized assessment of the individual’s present
ability to safely perform the essential function of the job.’” (citations omitted)).
       Nall’s arguments focus on the standard articulated in Echazabal: he
contends that BNSF did not consider the best available objective evidence or
conduct a meaningful individualized assessment because it, inter alia,
disqualified him “with no medical basis/analysis,” “kept making him jump
through hoops,” and “search[ed] for reasons to prevent [him] from returning to
work.” Thus, the question here is whether a genuine issue of material fact
exists as to whether BNSF’s direct threat determination was properly made
under that standard. 5



       5 We do not reach the question of which party bears the burden of proof regarding the
direct threat defense. BNSF argues that because the direct threat defense is related to the
second element of Nall’s prima facie case, Nall should have the burden to prove that he could
safely do his job. In Rizzo v. Children’s World Learning Ctrs., Inc., 213 F.3d 209 (5th Cir.
2000) (en banc), we declined to reach the question of which party bears the burden of
establishing that an individual’s disability poses a direct health or safety threat to the
disabled employee or others. Id. at 213 & n.4. We do so again here. Even assuming arguendo
that the burden is Nall’s, at this stage, he has satisfied it.
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                                  No. 17-20113
      Nall states in his complaint that he worked as a trainman, performing
the duties of a conductor, switchman, and brakeman. According to BNSF, the
duties of a conductor include maneuvering on, off, and around railcars, riding
on railcars with four points of contact, hand signaling, connecting and
disconnecting hoses and railcars, and “throwing” switches.        Moreover, the
duties of a switchman include substantially similar tasks, along with the
ability “to make quick hand and leg movements” and “maintain[ ] good balance
and steadiness of stance/gait.”
      In support of his argument that BNSF did not engage in a proper direct
threat analysis, Nall points to a BNSF medical status form provided to Nall
and his doctor before the list of switchman duties that includes a more limited
set of trainman duties and does not mention quick movements or balance. The
medical status form lists the following: operating track switches and derails,
using hand brakes, monitoring track conditions and traffic, inspecting railcars
and equipment, communicating signals affecting the movement of trains, and
controlling the speed and clearance distance of railcars.           After Nall’s
neurologist recommended a release to full duty for Nall based on this medical
status form back in 2010, shortly after Nall had been diagnosed, a BNSF doctor
provided Nall’s doctor with a new list that she said “addresses the duties for
which Parkinson’s symptoms may be of issue.” In addition, Nall cites to the
testimony of BNSF’s terminal manager for the yard where Nall worked. The
manager testified that it is not essential to work quickly as a conductor,
switchman, or brakeman.
      A reasonable jury could conclude that BNSF did not consider the “best
available objective evidence” or meaningfully engage in an “individualized
assessment” of whether Nall could perform the essential duties of a trainman
safely—and that, as a result, BNSF’s direct threat determination was not
objectively reasonable. First is the issue of identifying those essential duties.
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The district court acknowledged that the job descriptions provided to the court,
specifically the original medical status form and the more specific list of
switchman duties, contain differences. But the court concluded that these
differences do not affect the question of whether Nall was qualified because
“the record demonstrated that BNSF repeatedly stated that it deemed
performing job tasks safely as essential to Nall’s position” and this was also
reflected in the original medical status form job description. The question
remains, however, what the job tasks were that Nall could allegedly not
perform safely.
      For our analysis, we take guidance from the ADA’s definition of a
“qualified individual” and consider the list of trainman duties BNSF originally
provided to Nall on the medical status form that they gave to his doctor. See
42 U.S.C. § 12111(8) (stating that a written job description shall be considered
if it was prepared “before advertising or interviewing applicants for the job”).
This list did not include any reference to quick movements, balance, or
steadiness. Moreover, BNSF’s terminal manager testified that it was not
essential to work quickly as a conductor, switchman, or brakeman. Cf. Holly
v. Clairson Indus., L.L.C., 492 F.3d 1247, 1257 (11th Cir. 2007) (“[W]hen
considering the employer’s judgment regarding what is an essential function,
we have previously considered not only the company’s ‘official position,’ but
also testimony from the plaintiff’s supervisor.”). Taking the evidence in the
light most favorable to Nall, the trainman duties listed on the medical status
form are the ones we consider. Next, we address the question of whether
BNSF’s determination that Nall could not safely perform these tasks was
objectively reasonable.
      As the Supreme Court and this court have made clear, an employer’s
direct threat determination must result from an “individualized assessment”
of the particular employee based on the “best available objective evidence,” not
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                                      No. 17-20113
a categorical conclusion that an employee with a particular disability cannot
safely perform a job. See Echazabal, 536 U.S. at 86; Kapche, 304 F.3d at 499
(“[T]he City’s failure to assess [the employee’s] abilities on an individual
basis . . . stat[ed] a claim of a present and continuing violation of the ADA.”).
Thus, the question on appeal is not whether it was reasonable for BNSF to
conclude that an employee with Parkinson’s could pose a direct threat; the
question is whether BNSF reasonably concluded that Nall posed a direct
threat via an individualized assessment that relied on the best available
objective evidence and was not, as Nall alleges, manipulated midstream to
achieve BNSF’s desired result of disqualifying him.                 More precisely, the
question is whether there is any evidence in the record that creates a genuine
issue of material fact as to whether BNSF meaningfully assessed Nall’s ability
to perform his job safely and reasonably concluded that he posed a direct
threat. 6
       On this question, taking into consideration the reports by Nall’s
doctors—all of whom concluded that Nall could safely perform the tasks of a
trainman listed on the medical status form that BNSF originally provided to
Nall—the fact that Nall successfully completed each of the tasks presented to
him during his first field test, and the comments made by BNSF employees
that Nall was “never coming back to work” and that “people with Parkinson’s
don’t get better,” there is a genuine dispute. See E.I. Du Pont, 480 F.3d at 728,



       6 The dissent from our original opinion, as well as the petition for rehearing en banc
and two amicus curiae submissions in support of it, expressed concern that the panel majority
had imposed a new requirement for assertion of the direct-threat defense, to-wit: that in
addition to showing that the employment decision was objectively reasonable, the employer
must also establish that the process itself that was utilized in reaching that decision,
considered separately, was objectively reasonable. Without commenting further on the
efficacy of such an approach or on whether the panel majority actually adopted it, we
emphasize that nothing in this substitute opinion should be understood as employing that
reasoning.
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                                 No. 17-20113
731 (holding that judgment as a matter of law on direct threat defense was
inappropriate where employee presented evidence she could safely perform
essential job function but employer relied on disputed field test); Riel v. Elec.
Data Sys. Corp., 99 F.3d 678, 680–81, 683 (5th Cir. 1996) (reversing summary
judgment where employer terminated employee for inability to perform
essential function not included on lists of essential functions provided to
employee and his doctor, and employee introduced evidence that the function
was not essential).
      The district court held that BNSF was entitled to disregard Dr.
Jankovic’s medical releases because they “were based on a limited set of
observations and ‘incomplete set of facts.’” Hickman v. Exxon Mobile, 2012 WL
9100358, at *9 (S.D. Tex. Sept. 27, 2012). Even if it is true that BNSF could
choose to credit the opinions of its own doctors over Nall’s, the evidence
identified by Nall puts into question the objective reasonableness of those
opinions.
      The district court supported its decision with citations to our
unpublished opinion in Hickman v. Exxon Mobil, 540 F. App’x 277 (5th Cir.
2013). In that case, the plaintiff, Hickman, argued that her employer, Exxon,
failed to conduct an adequate individualized assessment of her abilities to
perform her job in support of a direct threat defense because it discounted the
opinion of her doctor. See Hickman, 2012 WL 9100358, at *9. The district
court disagreed. Id. It characterized that doctor’s decision as a “last-minute
work release” and noted that two of Hickman’s previous neurologists had
placed work restrictions on her; that she had worked with two neurologists
before she found one who would release her to return to work with only a
driving restriction; and that the doctor who released her orally agreed with
Exxon’s doctor that his concerns regarding Hickman returning to work were
legitimate.   Id.   In a short, unpublished opinion that did not discuss the
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                                       No. 17-20113
differing views of these doctors, we affirmed. See Hickman, 540 F. App’x at
277. This is a completely different case. And, in any event, we are not bound
by Hickman.
       Here, Nall provided medical reports from numerous doctors concluding
that he could perform his job duties safely. This includes a report from a
neurologist who said that Nall’s “station and gait were not too abnormal”; a
report from an occupational therapist who found that Nall “appeared to be able
to meet the demands for various positions working for BNSF” and that he could
perform balance tasks safely; a memo from Baylor College of Medicine
neurologist Dr. Jankovic that he had reviewed BNSF’s photographs of Nall’s
job duties and concluded that he was able to perform his job duties safely; a
medical status form completed by Dr. Jankovic stating that Nall was able to
return to work without any restrictions; and a medical status form completed
by a different doctor stating that Nall was able to return to work without any
restrictions. 7
       In addition, and importantly, Nall successfully completed each of the
tasks required of him during his first field test. BNSF nonetheless did not
reinstate Nall because he committed “[s]everal safety exceptions” during the
evaluation, including making the “deadly decision” of going between moving



       7 With respect to timing, Nall argues on appeal that BNSF took adverse actions in:
(1) April 2012, when BNSF placed him on medical leave; (2) September 2012, when BNSF
informed Nall that he could not return to work; (3) December 2012 through January 2013,
when BNSF again said Nall could not return to work; and (4) June through July 2013, when
BNSF permanently medically disqualified him. At the district court, however, Nall argued
that he was subjected to an adverse employment decision only on the last two of these four
dates: December 2012 and June 2013, when Nall submitted information that he was able to
return to work without restriction and BNSF still denied his requests. All of the doctor
evaluations listed above were provided to BNSF before December 2012, with the exception of
the second medical status form, which was sent to BNSF on December 20, 2012. Moreover,
because he did not present argument regarding the first two actions to the district court, Nall
has forfeited the argument that he was also subject to adverse actions in April and September
2012. See Mix, 791 F.3d at 611.
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                                     No. 17-20113
cars, failing to give proper hand signals, and demonstrating unsafe behavior
while dismounting equipment. Later, BNSF also claimed that Nall made a
second “deadly decision”—“fouling” the track, which involves walking on a
part of the track that puts you at risk of being hit. Nall, however, disputes
each of these allegations. With respect to the “deadly decisions,” Nall testified
that the cars were not moving when he started walking between them, and
that he was asked to do something during the test that required him to “foul”
the track. He also testified that he used a radio during the evaluation, not
hand signals, and did not agree that he dismounted the railcar in a way that
was unsafe.
      Finally, Nall provided evidence that BNSF employees made comments
that cast doubt on the propriety of BNSF’s evaluation process, and, as a result,
the credibility of its decision to disqualify him. Nall testified in his deposition
that BNSF’s field medical manager told him he was “never coming back to
work” and that the company was only asking Nall for updated medical
paperwork to “be nice.” In addition, two BNSF employees—a doctor and the
manager of clinical services—allegedly told Nall’s wife that “people with
Parkinson’s don’t get better.”
      Viewing the evidence in the light most favorable to Nall, as we must,
there is a genuine dispute as to the objective reasonableness of BNSF’s
actions. 8 See, e.g., Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1091–92
(10th Cir. 2008) (holding that a triable issue of material fact existed as to
whether the employee actually posed a direct threat to workplace safety where
there was a question on whether a physical therapist’s opinion could be


      8  We emphasize that a correct conclusion is not required to satisfy the objective
reasonableness standard. What is required, however, is that BNSF consider the best
available objective evidence, not categorically assume that Parkinson’s will disqualify an
employee, and not change the disqualification criteria in the middle of the evaluation to
dictate that outcome.
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                                   No. 17-20113
considered objective, evidence indicating that the employee’s restrictions may
not have limited his ability to perform safely in his environment, and evidence
that his employer’s application of various medical judgments to the workplace
was unreasonable); Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1030 (9th
Cir. 2003) (holding that medical opinion letters from the employee’s doctors,
together with the employee’s own declaration, raised a material fact issue as
to the objective reasonableness of the employer’s opinion); Lowe v. Ala. Power
Co., 244 F.3d 1305, 1309 (11th Cir. 2001) (holding that questions of fact
remained as to what the essential functions of the employee’s position are, and
whether, assuming the disputed function was included, the employee was
qualified to perform such work).
      The evidence that Nall presented—that BNSF employees (1) disregarded
Nall’s medical release forms; (2) relied on safety violations they later identified
in Nall’s field test despite his successful completion of the assigned tasks;
(3) changed the trainman job description to incorporate tasks that an
individual with Parkinson’s may have difficulty performing; and (4) made
comments indicating a belief that Parkinson’s categorically disqualified an
individual from working as a trainman—calls into question the credibility of
BNSF’s decision to disqualify him. Taken together, this evidence creates a
material fact issue on the question of whether BNSF considered the best
available objective evidence and meaningfully engaged in an individualized
assessment of Nall. Specifically, it raises a fact dispute as to whether BNSF
requested particular objective evidence of Nall’s ability to perform his job, only
to intentionally disregard that evidence when it indicated that Nall was
qualified and instead request new evidence on which to base its direct threat
determination.
      As discussed more fully in our pretext analysis below, it is well-accepted
in employment law—and the law more generally—that inconsistent
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                                  No. 17-20113
explanations and changing requirements undermine a party’s credibility. See
Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193–94 (11th Cir.
2004) (holding that “shifting reasons allow the jury to question [the employer’s]
credibility” and once his “credibility is damaged, the jury could infer that he
did not fire [the employee] because of the [proffered reason], but rather because
of her disability”); Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d
573, 579 (7th Cir. 2003) (“One can reasonably infer pretext from an employer’s
shifting or inconsistent explanations for the challenged employment
decision.”); cf. United States v. Hale, 422 U.S. 171, 177 (1975) (“A basic rule of
evidence provides that prior inconsistent statements may be used to impeach
the credibility of a witness.”).     And when an employer’s credibility is
undermined, it casts doubt on the reasonableness of that employer’s decisions.
Thus, although there is no requirement under the ADA for the employer to
follow certain procedures in making a “direct threat” assessment, the language
in Echazabal and the related EEOC regulation establishes that intentional
disregard for the best available objective evidence, in whatever form it takes,
undermines an employer’s credibility and renders its direct threat conclusion
objectively unreasonable. See Echazabal, 536 U.S. at 86 (“The direct threat
defense must be ‘based on a reasonable medical judgment that relies on . . . the
best available objective evidence[.]’”); 29 C.F.R. § 1630.2(r). In this instance,
BNSF’s intentional disregard for the best available objective evidence took the
form of moving the goalposts during Nall’s evaluation in order to produce
BNSF’s desired outcome of disqualifying him.        As a result, for summary-
judgment purposes, Nall has established his prima facie case, and we move to
the next steps of the McDonnell Douglas analysis—asking whether BNSF has
articulated a legitimate, non-discriminatory reason for placing Nall on medical




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                                       No. 17-20113
leave and, if so, whether Nall has shown that the articulated reason is
pretextual. 9
                2. Legitimate, non-discriminatory reason and pretext
       “At summary judgment, evidence demonstrating that the employer’s
explanation is false or unworthy of credence, taken together with the plaintiff’s
prima facie case, is likely to support an inference of discrimination even
without further evidence of defendant’s true motive.” Diggs v. Burlington N.
& Santa Fe Ry. Co., 742 F. App’x 1, 4 (5th Cir. 2018) (quoting LHC Grp., 773
F.3d at 702). The district court held that the safety concerns emphasized by
BNSF constituted a legitimate, non-discriminatory reason for BNSF to place
Nall on medical leave. As we have discussed, however, viewing the evidence
in the light most favorable to Nall, BNSF’s safety concerns were not tied to
Nall’s ability to perform the tasks required of his job. He could perform those
tasks. Instead, BNSF’s concerns were tied to his physical impairment—his
Parkinson’s symptoms.
       Notably, the job requirements that were added by BNSF to those of a
trainman reflect abilities directly impacted by Parkinson’s disease, such as the



       9  The district court also concluded that BNSF was entitled to a “business necessity”
defense. The “direct threat” defense and the “business necessity” defense “require different
types of proof.” EEOC v. Exxon Corp., 203 F.3d 871, 875 (5th Cir. 2000). “Direct threat
focuses on the individual employee, examining the specific risk posed by the employee’s
disability. In contrast, business necessity addresses whether the qualification standard can
be justified as an across-the-board requirement.” Id. (citation omitted). The district court
seemed to consider the qualification standard here to be a requirement that Nall could do his
job safely. Thus, its analysis regarding the defense mirrored its direct threat analysis.
Similarly, BNSF summarily states that the district court’s separate rejection of Nall’s attack
on BNSF’s business necessity defense was correct “[f]or the same reasons” given in support
of its direct threat defense. Accepting the relevant qualification as the ability to do his job
safely, we conclude that Nall has also established a fact issue regarding BNSF’s entitlement
to the business necessity defense under the ADA.
         As with the direct threat defense, however, the district court did not address the
applicability of the business necessity defense under the TCHRA, and the parties did not
brief it. The district court will need to consider this on remand.
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                                 No. 17-20113
ability “to make quick hand and leg movements” and “maintain[ ] good balance
and steadiness of stance/gait.” This casts doubt on the legitimacy of BNSF’s
concerns. See Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017) (“An
employer’s inconsistent explanations for an employment decision ‘cast doubt’
on the truthfulness of those explanations.”); see also Rizzo v. Children’s World
Learning Ctrs., Inc., 213 F.3d 209, 221 (5th Cir. 2000) (en banc) (Jones, J., and
Smith, J., dissenting) (“[W]e may have special cause for suspicion when an
employer justifies discrimination not on the relatively concrete and more
readily measurable basis of ability to perform a particular essential job
function safely, but because of a proffered generalized concern about health
and safety.”).
      Additional evidence that suggests that BNSF’s explanation is false or
unworthy of credence includes the reports by Nall’s doctors, who concluded
that Nall could safely return to work, the “never coming back to work” and
Parkinson’s-related statements made by BNSF employees, and the fact that
BNSF continued to move the goalposts—to make requests of Nall, even as he
completed the previous ones. Cf. Diggs, 742 F. App’x at 5 (holding that there
was no fact issue regarding pretext when an employee failed to timely submit
information requested by his employer, BNSF, and there was “no evidence that
the company would create new information demands after [the employee]
complied with previous ones”).
      As a result, even assuming that BNSF’s alleged safety concerns were
legitimate and non-discriminatory, the totality of the circumstances creates a
material fact issue as to whether BNSF’s proffered reasons for refusing to
reinstate Nall were merely pretextual—that is, that the real reason for BNSF’s
adverse employment action was Nall’s disability.           Accordingly, on Nall’s
disability discrimination claims, we reverse the district court’s judgment. Of
course, this holding does not mean that Nall will prevail at trial or that safety
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                                   No. 17-20113
was not the real reason for BNSF’s decision. It means only that Nall produced
enough evidence to survive summary judgment.
                                        IV.
      “To show an unlawful retaliation, a plaintiff must establish a prima facie
case of (1) engagement in an activity protected by the ADA, (2) an adverse
employment action, and (3) a causal connection between the protected act and
the adverse action. Once the plaintiff has established a prima facie case, the
defendant must come forward with a legitimate, non-discriminatory reason for
the adverse employment action. If such a reason is advanced, the plaintiff
must adduce sufficient evidence that the proffered reason is a pretext for
retaliation. Ultimately, the employee must show that ‘but for’ the protected
activity, the adverse employment action would not have occurred.” Seaman v.
CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999) (footnotes omitted); see also Feist
v. La. Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013).
      Here, Nall claims that the “causal link” element of his prima facie case
is the only element in dispute. “A ‘causal link’ is established when the evidence
demonstrates that ‘the employer’s decision to terminate was based in part on
knowledge of the employee’s protected activity.’” Medina v. Ramsey Steel Co.,
238 F.3d 674, 684 (5th Cir. 2001) (quoting Sherrod v. Am. Airlines, Inc., 132
F.3d 1112, 1122 (5th Cir. 1998)).
      Nall satisfies the first element of his retaliation claim by pointing to his
decision to file a complaint with the EEOC in December 2012. For the second
element, Nall notes that “BNSF consistently refused to reinstate him after that
date, including only three weeks later on January 8, 2013.” As to the third
element, Nall argues that Dr. Gillis and Dickey were aware of Nall’s EEOC
complaint because they admit that they provided information to the EEOC
through another BNSF employee. Nall argues that there is a fact issue on this
element because of how burdensome BNSF made the process for Nall to be
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                                No. 17-20113
considered “qualified” and misrepresentations BNSF made to the EEOC,
including the fact that BNSF said it had not received additional information
from Nall during a certain time period when it had.
      Nall does not provide evidence creating a genuine issue of material fact
on the “causal link” element of his retaliation claim. Although Nall sets forth
some evidence to show that Dr. Gillis and Dickey, individuals involved in the
decision-making process regarding Nall, eventually learned that Nall had filed
a claim with the EEOC, he does not cite to any evidence that demonstrates
that the subsequent decisions to keep him on leave were at all based on this
knowledge. Without evidence of a causal link between the filing of his EEOC
claim and his continued placement on medical leave, Nall is unable to establish
a prima facie case of an unlawful retaliation and his retaliation claims
necessarily fail.
                                      V.
      For the above reasons, we REVERSE the grant of summary judgment as
to Nall’s disability discrimination claims and AFFIRM the judgment as to the
remaining claims. This case is REMANDED for further proceedings consistent
with this opinion.




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                                       No. 17-20113
GREGG COSTA, Circuit Judge, specially concurring:
       The question that divides the panel—whether the railroad had good
reason to believe Nall posed a safety risk—should be the only issue in this case.
There is no doubt the railroad fired Nall because of those alleged safety
concerns and that those concerns resulted from Nall’s Parkinson’s. So that
disability is the reason Nall was fired. See Cannon v. Jacob Field Servs. N.
America, Inc., 813 F.3d 586, 594 (5th Cir. 2016) (finding causation “easily
resolve[d]” when a company revoked a job offer because of concerns that the
applicant’s shoulder injury would prevent him from climbing a ladder).
       We might be uncomfortable with so readily calling the railroad’s action
“discrimination.”       Today that word is usually equated with something
invidious. 1 That is for understandable, indeed laudable, reasons given our
history of pernicious, pervasive, and persistent prejudice against members of
certain groups. But the reality is that employers lawfully discriminate all the
time in making hiring and promotion decisions. Employers discriminate based
on employees’ education, work experience, intelligence, and work ethic to name
a few common examples. So the question often is not whether discrimination
is occurring, but whether it is the type of discrimination that society, through
its laws, has condemned.




       1  That instinct led an employer to recently argue in the Sixth Circuit that an ADA
plaintiff had to show animus. E.E.O.C. v. Dolgencorp, LLC, 899 F.3d 428, 436 (6th Cir. 2018).
In rejecting that challenge to a verdict, Judge Sutton explained that:
        the Act speaks in terms of causation, not animus. An employer violates the Act
        whenever it discharges an employee ‘on the basis of disability’ (a necessary
        requirement for liability), not only when it harbors ill will (a sufficient way of
        establishing liability). Imagine a company that fired a visually impaired employee to
        save itself the minimal expense of buying special software for her. Without more, that
        would constitute termination ‘on the basis of disability,’ even if all of the evidence
        showed that cost-savings, not animus towards the blind, motivated the company.
Id. at 436 (internal citations omitted).
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                                 No. 17-20113

      The Americans with Disabilities Act was a long overdue recognition that
discrimination against the disabled belongs in the unlawful category. That
discrimination is unjust to the disabled and deprives the economy of
individuals who usually can fully and effectively perform their jobs.        But
Congress decided that not all disability discrimination should be unlawful.
Because some disabilities may prevent some people from performing some jobs
safely, the ADA provides a defense if the disabled employee will pose a safety
threat to himself or others. 42 U.S.C. § 12112(b)(6), 12113(b); see also 42
U.S.C. § 12111(8) (defining a “qualified individual” under the ADA as a person
“who, with or without reasonable accommodation, can perform the essential
functions of the employment position”). This “direct threat” defense draws a
line not between discrimination and its absence, but between unlawful and
lawful discrimination.
      For cases like this one that turn on whether the disability renders the
employee a safety risk (or the sometimes related statutory question whether
the employee is unable to perform the essential functions of the job), there thus
should not be a dispute about discriminatory intent. An employer cannot have
it both ways by arguing that the termination was justified because the
disability was dangerous while also maintaining that the safety-threatening
disability was not the reason for the firing.      When a concern about the
disability’s negative impact on workplace safety is the reason for the adverse
action, the “causation” element of an ADA discrimination claim should be
straightforward. See Cannon, 813 F.3d at 594; Rizzo v. Children’s World
Learning Centers, Inc., 84 F.3d 758, 762 (5th Cir. 1996); E.E.O.C. v.
Dolgencorp, LLC, 899 F.3d 428, 435 (6th Cir. 2018); McMillan v. City of New
York, 711 F.3d 120, 129 (2d Cir. 2013).




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                                       No. 17-20113

       Yet courts and employment lawyers are conditioned to thinking of
causation as the difficult element to prove in discrimination cases; it often is
the contested one in Title VII disparate treatment cases alleging race or sex
discrimination.       And when causation is disputed, courts and lawyers
reflexively apply the burden shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973).
       McDonnell Douglas is the “kudzu” of employment law. Cf. Zadeh v.
Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring) (describing
the “kudzu-like creep” of qualified immunity law). More than 57,000 court
opinions have cited it. That’s more than 3 cases a day (including weekends and
holidays!) since the opinion was issued 45 years ago. Although courts keep
trying to trim back its invasion of those parts of employment law where it does
not belong—pleading standards, 2 jury instructions, 3 or appellate review of jury
verdicts, 4 for example—its dominance continues. 5                  As the judge-created
doctrine has been widely criticized for its inefficiency and unfairness even in
the space it is supposed to occupy 6—a tool for evaluating the sufficiency of
circumstantial evidence—we should not expand it beyond those bounds. 7


       2 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (reversing a district court’s
requirement that plaintiffs plead facts sufficient to raise an inference of discrimination under
McDonnell Douglas).
       3 Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992) (explaining that a

jury should not be instructed using the McDonnell Douglas standard).
       4 Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 993 (5th Cir. 2008) (noting that

in an appeal from a jury verdict, the appellate court’s focus is on whether the record supports
the jury’s finding of discrimination, “not on the plaintiff’s prima facie case or the McDonnell
Douglas framework”).
       5 See generally Sandra F. Sperino, MCDONNELL DOUGLAS: THE MOST IMPORTANT

CASE IN EMPLOYMENT DISCRIMINATION LAW (2018).
       6 See Coleman v. Donahoe, 667 F.3d 835, 862–63 (7th Cir. 2012) (Wood, J., concurring);

Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493–94 (D.C. Cir. 2008) (Kavanaugh, J.);
D. Brock Hornby, Over Ruled, 21 GREEN BAG 2d 17, 22–26 (2017) (collecting extensive
judicial and academic criticism of McDonnell Douglas); Sperino, supra note 6, at 317–27.
       7 McDonnell Douglas created the three-part framework to evaluate the evidence for a

bench trial, see Hornby, 21 GREEN BAG 2d. at 22–23 (citing 411 U.S. at 802), as the original

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                                       No. 17-20113

       I fear that is what is happening with the use of McDonnell Douglas to
prove discrimination in Nall’s case. To be sure, Nall also tried to prove
discrimination with direct evidence. But in doing so, he relied on the comments
of certain supervisors, which itself requires recourse to another complicated
multipart test. See Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996).
       There is a simpler and more convincing direct evidence route. To use a
modern phrase, the firing “is what it is”: the railroad has all along
acknowledged that it fired Nall because of concerns about his Parkinson’s.
That’s discrimination on the basis of a disability. See Rizzo, 84 F.3d at 762
(explaining that the court did not need to “engage in the McDonnell Douglas
presumptions in order to infer discrimination” because the employer did “not
deny that [the employee] was removed from driving duties because of her
hearing impairment”); cf. Dolgencorp, LLC, 899 F.3d at 435 (explaining that
an employer’s neutral justification does not come into play when there is direct
evidence of disability discrimination). So, like many ADA cases, the hard issue
in this one is not whether there was discrimination but whether that
discrimination was justified.




Title VII did not grant a jury right (the 1991 Civil Rights Act added one, see 42 U.S.C.
§ 1981a(c)). See generally Beesley v. Hartford Fire Ins. Co., 717 F. Supp. 781, 782 (N.D. Ala.
1989) (explaining that after Title VII’s passage, judges in the South denied jury requests for
fear that juries would ignore the Civil Rights Act’s mandate); Vincenza G. Aversano, et al.,
Jury Trial Right Under Title VII: The Need for Judicial Reinterpretation, 6 CARDOZO L. REV.
613, 632–37 (1985) (suggesting that the drafters of Title VII omitted a jury right for fear that
juries in the South would not give black plaintiffs a fair hearing). The Supreme Court has
since endorsed its use in evaluating circumstantial evidence at the summary judgment stage
to decide whether a case gets to the jury. See, e.g., Young v. United Parcel Serv., Inc., 135 S.
Ct. 1338, 1355 (2015). At the same time, it has repeatedly admonished that the test was
“‘never intended to be rigid, mechanized, or ritualistic.’” Swierkiewicz, 534 U.S. at 512 (2002)
(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519, (1993) (quoting same); U.S. Postal Serv. Bd. Of Governors v. Aikens,
460 U.S. 711, 715 (1983) (quoting same).

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                                 No. 17-20113

      This case should be an example of why McDonnell Douglas is not the be-
all and end-all of proving discrimination. There are other ways, including that
the discrimination is obvious.




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                                  No. 17-20113

JAMES C. HO, Circuit Judge, dissenting:
      I applaud the panel majority for withdrawing its earlier opinion in this
matter (912 F.3d 263), for the reasons stated in footnote 6 of its revised opinion.
Although I would still affirm the district court for the case-specific evidentiary
reasons specified in my original dissent (but which are not independently
worthy of en banc review) (see id. at 279–83), the panel majority has now wisely
obviated the need for en banc rehearing in this case, by removing the process-
based theory of liability that animated its earlier opinion. There is no basis for
such a legal theory under the ADA, for reasons that need not be repeated
here—but are well articulated in the petition for en banc rehearing and the
persuasive amicus briefs filed by the Association of American Railroads, the
Center for Workplace Compliance, and the National Federation of Independent
Business (see also id. at 283–84).




                                        27
