NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 14 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUSTIN DONAHUE, et al., No. 22-16847

Plaintiffs-Appellants, D.C. No. 3:21-cv-00448-MMC

v.

MEMORANDUM*

UNION PACIFIC RAILROAD COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding

Argued and Submitted February 14, 2024 San Francisco, California

Before: S.R. THOMAS, HAMILTON,** and CHRISTEN, Circuit Judges.

This appeal is controlled by our opinion issued today in DeFries v. Union

Pacific Railroad Co., __F.4th __, No. 23-35119 (9th Cir. June 14, 2024). Like

plaintiff DeFries, plaintiffs-appellants Justin Donahue, Jason Campbell, and Jacob

Goss worked as railroad conductors or locomotive engineers for defendant-appellee

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David F. Hamilton, United States Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, sitting by designation. Union Pacific Railroad Company. After failing Union Pacific’s routine color-vision

testing, each plaintiff was routed into Union Pacific’s employee health screening

system, the fitness-for-duty program. While undergoing fitness-for-duty

evaluations, the plaintiffs failed Union Pacific’s follow-up color-vision field test and

were diagnosed by Union Pacific’s Chief Medical Officer with a “Color Vision

Deficit” that the company deemed could not “be accommodated.” As a result, they

were removed from their positions, and Union Pacific imposed permanent work

restrictions that barred them from working any position that required the

identification of traffic signals. The plaintiffs attempted to find other positions

within the company but were unsuccessful, and Union Pacific’s permanent work

restrictions have remained in place.

In DeFries, we detailed the history of the Harris v. Union Pacific Railroad

Co. class action, alleging violations of the Americans with Disabilities Act. In

Harris, the plaintiffs’ operative complaint alleged a class that all parties agree

included color-vision plaintiffs like Donahue, Campbell, and Goss, but later in the

litigation, class counsel moved for class certification on a narrower definition. The

district court certified a class based on that narrower definition, but that certification

was later reversed by the Eighth Circuit. Harris v. Union Pacific Railroad Co., 329

F.R.D. 616, 628 (D. Neb. 2019), rev’d, 953 F.3d 1030, 1032 (8th Cir. 2020). The

plaintiffs in this case are situated identically to DeFries, except that they suffered

2 adverse employment actions earlier than DeFries, before the certification of the

Harris class. As in DeFries, their individual claims were timely if American Pipe

tolling extended for them until the Eighth Circuit reversed the class certification.

See generally American Pipe & Construction Co. v. Utah, 414 U.S. 538, 552–54

(1974); Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354 (1983).

This case, DeFries, and Blankinship v. Union Pacific Railroad Co., No. 22–

16849, were all argued to this panel on February 14, 2024. In all aspects relevant to

this appeal, these plaintiffs are situated identically to the plaintiff in DeFries. Under

our decision in DeFries, plaintiffs Donahue, Campbell, and Goss were entitled to

rely on American Pipe tolling until the Eighth Circuit issued its mandate decertifying

the Harris class. We REVERSE summary judgment in favor of Union Pacific and

REMAND for further proceedings consistent with this order, without reaching the

alternative grounds for summary judgment that the district court did not reach.

3