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June 10, 1999


The opinion of the court was delivered by: Katz, Senior District Judge.


In this claim of employment discrimination under the Rehabilitation Act,*fn1 plaintiff Charles Donahue alleges that defendant Conrail discriminated against him based on his disability by failing to transfer him to a new job when a heart condition made him unable to perform his job as a conductor. Presently before the court is defendant's motion for summary judgment, plaintiff's response, and defendant's reply. Based on the following analysis, the motion will be granted.*fn2


Plaintiff Donahue worked for Conrail from June 1977 to March 1994. From 1987 until 1994, he worked variously as an engineer and a conductor. According to Donahue's deposition testimony, an engineer's job is to "[o]perate trains," and a conductor's job is to "[t]ake care of the trains, fix them when they break down and ship out cars and deliver cars to different places." Def.Ex. 2 at 8; see also Exs. 19, 20 (Conrail's job descriptions, which essentially match plaintiff's statements).

In February 1993, Donahue had a heart attack, and he went on disability leave. In May, he received clearance from his treating physician and the Conrail Medical Department, he returned to work as a conductor. At the beginning of September 1993, plaintiff passed out while working in the train yard and fell off a train, falling eight feet to the ground. See Def.Ex. 2 at 30.

His cardiologist, Dr. Elson, diagnosed that the blackout had been caused by ventricular tachycardia, which is "a fast heartbeat from the bottom part of the heart where the heart rate goes at an extremely fast rate, and the heart can't pump blood, and the result is loss of consciousness." Def.Ex. 3 at 33 (Elson dep.). A few weeks later, the doctor performed surgery to implant a cardiac defibrillator, which shocks the heart to stop the ventricular tachycardia when the patient's pulse exceeds a certain speed. See id. at 16, 33. The defibrillator does not prevent a tachicardic episode or the attendant loss of consciousness, and plaintiff could experience an episode at any time. As plaintiff testified at his deposition, he should expect to have blackouts in the future. See Def.Ex. 2 at 42; see also Def.Ex. 3 at 18 (Dr. Elson's statement that plaintiff is "absolutely" still prone to pass out at any time).

Plaintiff was out from work for several months. On March 1, Dr. Elson provided a letter that said, "we feel that he should be able to return to work at this time. However, he obviously should not be working as an engineer." Def.Ex. 5. Based on that letter and on a physical examination by Conrail medical personnel, Conrail cleared Donahue to return to work as a conductor. In his desire to return to work, plaintiff apparently was not completely forthright. He did not disclose the fact that Dr. Elson had warned him, more broadly than indicated in Elson's letter, not to work around trains because it would be dangerous.*fn3 Plaintiff signed a statement on the medical questionnaire that said he did not have "[a]ny health problem which might keep you from doing your job safely." Def.Ex. 6. When the examining nurse expressed her reservations about his returning to work either as an engineer or a conductor, "I told her she doesn't know what I do for a living," and that he was able to return to work as a conductor. Def.Ex. 2 at 38-39.

Donahue returned to work as a conductor on March 14.*fn4 On March 16, his third day back, he passed out while walking down a track and was taken to the hospital. When he met with Dr. Elson shortly after that incident, the doctor told him that "he shouldn't be doing that kind of work. . . . he shouldn't be riding on trains, working on trains and moving locomotives, as I recall." Def.Ex. 3 at 14. "Anything that was a moving train, I thought, was dangerous for him and for others." Id. at 17.

The following month, Donahue applied for Railroad Retirement Board disability benefits. See Def.Ex. 8. Eligibility for that benefits program depends on the railroad employee's having a disability that makes him "unable to do any substantial gainful activity." 20 C.F.R. § 220.261. Plaintiff was approved. See Def.Ex. 17. Some time later, Donahue was required to submit documentation to Conrail's disability insurer in connection with the short-term benefits he had received before qualifying for his RRB benefits. In that form, which was received by the Director of Labor Relations and Personnel on May 25, 1994, Dr. Elson stated that Donahue would "never" be able to resume his regular job, but he could resume work at another job for which he is qualified "now." There is no evidence as to what further use this document was put.*fn5

Mr. Donahue did not ever ask his doctor to certify him as able to return to work. See Def.Ex. 3 at 14. He has not returned to work and has continued to receive disability benefits.


To make out a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must show the following: (1) that he has a disability; (2) that he is a qualified individual, i.e., he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he was nonetheless terminated or otherwise prevented from performing the job. See Mengine v. Runyon, 114 F.3d ...

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