811 F2d 286 Stephens v. Norfolk and Western Railway Company

811 F.2d 286

128 L.R.R.M. (BNA) 2278, 46 Fair
Empl.Prac.Cas. 1172,
42 Empl. Prac. Dec. P 36,750

Joseph C. STEPHENS, Plaintiff-Appellant
v.
NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee.

No. 85-1226.

United States Court of Appeals,
Sixth Circuit.

Dec. 1, 1986.

Before KEITH and MARTIN, Circuit Judges, and WEICK, Senior Circuit judge.

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1

Prior Opinion: 792 F.2d 576.

ORDER

2

Pursuant to suggestions made in a petition for en banc in this proceeding it is hereby ordered and directed that the Clerk enter as an amendment to the opinion issued on June 9, 1986, 792 F.2d 576 (6th Cir.1986), the following footnote 9 to be placed on page 581 at the end of the first full sentence of the first full paragraph.

3

9. This case does not involve discharge or discrimination against Stephens because of a handicap, and it does not in any way conflict with Colorado Anti-Discrimination Commission v. Continental Airlines, 372 U.S. 714 [83 S.Ct. 1022, 10 L.Ed.2d 84] (1963). There are three issues to be decided in this case. First, whether the physical examination was legitimate. Second, whether Stephens could pass the examination. Third, if, as the trial court held, Stephen's complaint failed to state a claim on which relief could be granted under the Handicapper's Act, whether Stephen's unsuccessful attempt to rely on that Act could take his claim outside the exclusive jurisdiction of the NRAB.