“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

In December 2018, Trump judge James Ho of the Fifth Circuit dissented from a 2-1 ruling reversing a grant of summary judgment against an individual with Parkinson’s disease who contended that he was improperly placed on leave by his employer. In a decision by George W. Bush appointee Judge Jennifer Walker Elrod, the majority found that there was a sufficient factual question as to whether the employer’s evaluation procedures were manipulated to produce a negative outcome against the employee. But Ho would have denied the employee an opportunity to prove his case and ruled in favor of the employer.

Michael Nall, a trainman with BNSF Railway, was diagnosed with Parkinson’s disease in 2010. He had been working for the company since 1973. To clear him to work, BNSF required Nall to complete a medical status form for his trainman duties. Nall’s neurologist cleared him to continue working. BNSF’s doctor then revised the medical status form to instead include the duties of a switchman, different from his trainman duties. Although third party evaluations cleared Nall for performing even these duties, he was nonetheless placed on leave by BNSF and never reinstated.

Nall filed an Equal Employment Opportunity Commission (EEOC) complaint against BNSF and prevailed. Nall then filed suit against BNSF in district court for discrimination and retaliation under the American with Disabilities Act (ADA) and the Texas Commission on Human Rights Act and lost. The district court granted summary judgment in favor of BNSF and Nall appealed.

In  Nall v. BNSF Railway Company, the majority concluded that BNSF’s safety concerns were not clearly tied to Nall’s ability to perform the tasks required for his job. The record indicated that Nall could perform those tasks. Rather, the majority concluded, BNSF’s concerns were tied to his inability to perform the new job duties added by BNSF to the medical status form because of his Parkinson’s disease. According to the majority, this cast doubt on the legitimacy of BNSF’s concerns. Under the totality of the circumstances, the majority said, there was a material fact issue as to whether BNSF’s reasons to refuse to reinstate Nall were merely excuses. Summary judgment for the employer was thus improper and he should have had the ability to try to prove his claims. But Ho dissented and would have ruled for the employer on the ADA claim without even a trial.