John Lisotto v. New Prime Incorporated
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--terminating Motion to supplement [999779456-2] Originating case number: 3:13-cv-02407-MGL Copies to all parties and the district court/agency. [999810870].. [15-1273]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1273
JOHN D. LISOTTO,
Plaintiff - Appellant,
v.
NEW PRIME, INC., d/b/a Prime, Inc.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Mary G. Lewis, District Judge.
(3:13-cv-02407-MGL)
Argued:
March 22, 2016
Decided:
May 3, 2016
Before SHEDD, THACKER, and HARRIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Rebecca Guental Fulmer, LAW OFFICES OF WILMOT B. IRVIN,
Columbia, South Carolina, for Appellant.
Reginald Wayne
Belcher, TURNER PADGET GRAHAM & LANEY P.A., Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
John D. Lisotto (“Appellant”) filed an Americans with
Disabilities Act (“ADA”) claim against Appellee New Prime, Inc.
(“Prime”) after Prime failed to hire him as a truck driver.
Prime,
contending
that
Appellant
should
have
exhausted
his
administrative remedies with the Federal Motor Carrier Safety
Administration (“FMCSA”), moved to dismiss the complaint.
district
court
agreed
and
dismissed
the
complaint
The
without
prejudice.
The
FMCSA
regulation
upon
which
the
district
court
relied contemplates “a disagreement between the physician for
the driver and the physician for the motor carrier concerning
the
driver’s
However,
qualifications.”
because
the
49
parties
did
C.F.R.
not
§
391.47(b)(2).
“disagree[]”
about
Appellant’s qualifications at the time Prime denied employment
to
Appellant,
49
C.F.R.
§ 391.47(b)(2)
is
inapplicable.
Therefore, we vacate the district court’s judgment and remand.
I.
Appellant’s
allegations,
which
we
complaint
accept
as
sets
forth
true.
See
the
following
Johnson
v.
Am.
Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015).
On
commercial
Prime.
August
truck
19,
driver,
2010,
applied
Appellant,
for
a
an
driver
experienced
position
with
Appellant began “trucking” in 1971 and had around seven
2
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years’
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experience
as
a
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long-distance
truck
driver
hauling
gasoline, diesel fuel, and ethanol throughout the United States.
J.A. 6. 1
At the time of his application to Prime, Appellant was
employed
as
a
correctional
officer
for
the
South
Carolina
Department of Corrections, earning around $30,000 a year.
On August 27, 2010, a recruiter from Prime, Sheryl
Lindsay, sent
attend
Appellant
Prime’s
Lindsay
also
an
email
orientation
explained
stating
program
that
as
in
part
he
was
approved
Springfield,
of
the
to
Missouri.
hiring
process,
Appellant would be required to pass a physical examination and
drug screen in accordance with FMCSA standards.
Lindsay bought
Appellant a one-way bus ticket to Springfield and explained that
after a successful orientation, he would receive his assigned
truck and drive back to South Carolina to work out of Columbia.
Appellant
diagnosed
physical
as
and
had
a
sleep
narcolepsy.”
drug
J.A.
screen,
physician, Dr. Crook.
he
disorder
7.
In
obtained
“believed
to
anticipation
a
letter
be
or
of
his
from
his
The letter explained that Appellant took
Dexedrine, a type of amphetamine, to manage the sleep disorder.
Dr.
Crook
adversely
opined
affect
“that
the
prescribed
[Appellant’s]
ability
1
medication
would
to
operate
safely
not
a
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
3
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commercial motor vehicle, as [Appellant] had for many years been
driving commercial trucks safely . . . while taking [Dexedrine]
and had experienced no problems with narcolepsy.”
Id. at 10-11.
On September 22, 2010, Appellant, having quit his job
with the Department of Corrections, travelled to Springfield for
orientation.
He reported for his physical examination and drug
test and explained to Prime’s medical examiner, Dr. Abraham,
that he was taking Dexedrine “to address a condition believed to
be or diagnosed as narcolepsy.”
J.A. 10.
He gave Dr. Abraham
the letter from Dr. Crook and showed him his prescription for
Dexedrine.
Dr. Abraham did not determine that Appellant was
unqualified for the position because he had narcolepsy; rather,
he noted that Appellant “needs to be off Dexedrine at least 1
month.”
Id. at 11 (alteration omitted).
Dr. Abraham further
noted that Provigil is the “[o]nly med[ication] . . . taken for
narcolepsy” that Prime would accept, and Appellant “need[ed] to
be on it for at least 6 weeks [and] document[] [his] stability”
before beginning employment with Prime.
Id.
Appellant returned to orientation, and about an hour
later, one of Prime’s nurses called Appellant out of his session
and told him “he could not work for Prime because he had tested
positive for amphetamines.”
J.A. 11.
Echoing Dr. Abraham, the
nurse said Prime would accept truckers taking Provigil, but not
Dexedrine, and instructed him to return home and take Provigil
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for six weeks to see how it would affect him.
Springfield
and
went
back
to
South
Carolina
Appellant left
to
comply
with
Prime’s directives.
Two days later, on September 24, 2010, Prime’s Medical
Review Officer (“MRO”), Dr. Mauldin, phoned Appellant and stated
“he needed to hear from [Appellant’s] doctor about his medical
condition
and
C.F.R.
40.129(a)(4)
§
before
prescribed
“verify[ing]”
medication.”
(when
the
a
drug
J.A.
test,
test
an
MRO
11;
result
see
is
must
also
49
positive,
“conduct
a
verification interview [which] must include direct contact in
person or by telephone between [the MRO] and the employee”); 2 id.
§ 40.131(a) (“When . . . the MRO . . . receive[s] a confirmed
positive . . . test result from the laboratory, [he or she] must
contact the employee directly . . . on a confidential basis, to
determine
result.”).
whether
the
employee
wants
to
discuss
the
test
Dr. Mauldin claimed that if he did not hear from
Appellant’s doctor within five days, he would report “a positive
drug test for amphetamines” to the Department of Transportation
(“DOT”).
J.A. 11.
Appellant called his physician, Dr. Crook,
“right away,” and explained Dr. Mauldin’s request.
Id.
Dr.
Crook phoned Dr. Mauldin on September 27, but no one answered
2
The term “employee” includes “applicants for employment
subject to pre-employment testing.” 49 C.F.R. § 40.3.
5
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the call.
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He “persisted in trying to reach Dr. Mauldin but was
never able to reach him or anyone else in his office.”
Id. at
20.
On September 27, 2010, Dr. Crook changed Appellant’s
medication to Provigil, and he experienced no detrimental side
effects.
On November 1, Appellant called Lindsay and told her
he had complied with Dr. Abraham’s and the nurse’s directives.
Lindsay forwarded the call to Prime’s personnel office, and an
employee in that office told him, “You cannot work for Prime
because you tested positive for amphetamines” and hung up.
J.A.
12.
On November 19, 2010, Appellant wrote to Dr. Mauldin,
asking that he “reevaluate the circumstances of the drug test he
had taken during his physical on September 22, 2010.”
30.
J.A. 12,
Appellant explained,
I am not saying the test was incorrect, it
was correct.
However I was under [Dr.
Crook’s] care and he tried to contact your
office numerous times and could not reach
anyone and get an answer. . . .
[Dr. Crook] changed my medication to one
acceptable to your office and the [DOT]
. . . .
Thank you for your consideration.
This is
effecting [sic] my career and my livelihood
through no fault of my own.
Id. at 30.
Dr. Mauldin finally responded via letter nearly two
months later, on January 12, 2011, stating, “Even though you had
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a
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prescription
disqualifying
concern.”
for
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amphetamines,
medical
condition
in
my
since
opinion
narcolepsy
you
is
have
a
a
safety
Id. at 12 (the “Mauldin Letter”).
After
receiving
the
Mauldin
Letter,
Appellant
participated in a sleep study and learned “that he did not have
narcolepsy but experienced ‘moderate obstructive sleep apnea.’”
J.A. 13.
After beginning to use a breathing machine at night,
he no longer needed medication to stay awake.
On May 25, 2013,
Appellant wrote to Dr. Mauldin, explaining that he no longer
needed medication, and forwarded the results of the sleep study.
He closed the letter, “[W]ould you please consider clearing my
name
so
I
can
drive
again!”
Id.
at
31.
He
received
no
response.
Thereafter, Appellant applied for other truck driving
positions, but he was unable to obtain employment.
One employer
told him his company “could not hire him because he had a record
of abusing amphetamines.”
and
“suffered
extreme
J.A. 13.
emotional
Appellant became homeless
distress.”
Id.
He
was
eventually able to obtain another job paying near minimum wage.
After receiving a right-to-sue letter from the Equal
Employment Opportunity Commission, Appellant filed suit in the
District of South Carolina on September 5, 2013.
Prime filed a
motion to dismiss, contending: (1) Appellant failed to exhaust
administrative
remedies
pursuant
7
to
49
C.F.R.
§ 391.47
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(providing
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that
the
FMCSA
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resolves
“conflicts
of
medical
evaluation” where “a disagreement [exists] between the physician
for
the
driver
and
the
physician
for
the
motor
carrier
concerning the driver’s qualifications”); and (2) Appellant was
not
a
“qualified
individual”
under
the
ADA,
see
42
U.S.C.
§ 12112(a).
On August 28, 2014, the district court adopted the
recommendation
of
the
magistrate
judge
and
dismissed
the
complaint without prejudice because Appellant failed to exhaust
administrative remedies as required by 49 C.F.R. § 391.47(b)(2).
The district court declined to address Prime’s argument that
Appellant
is
not
a
“qualified
individual.”
On
September
2,
2014, Appellant filed a motion to alter or amend the judgment
pursuant to Rule 59(e) and also asked for stay of the district
court’s decision.
The district court denied both requests, and
Appellant filed a timely notice of appeal.
II.
We review de novo the district court’s dismissal of a
complaint.
See SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d
412, 422 (4th Cir. 2015).
facts
in
favorable
the
to
complaint
and
[Appellant].”
“[W]e accept as true all well-pled
construe
them
United
States
Inc., 775 F.3d 628, 632 n.1 (4th Cir. 2015).
8
in
v.
the
light
Triple
most
Canopy,
We must also draw
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“all reasonable inferences in [Appellant’s] favor.”
DeMasters
v. Carilion Clinic, 796 F.3d 409, 421 (4th Cir. 2015).
The magistrate judge and district court both believed
that Appellant’s claim should have first been presented to the
FMCSA because the dispute involved a “disagreement” between Dr.
Crook, Appellant’s physician, and Dr. Mauldin, Prime’s MRO.
Appellant
claims
there
was
no
“disagreement”;
rather,
But
Prime
discriminated against him because Prime failed to hire him based
on an erroneously verified positive drug test, and “MRO Mauldin
failed to correct his verified positive drug test result and
downgrade
it
Appellant’s
“[a]ct[s]
advocate
to
Br.
as
20;
an
for
negative,
the
see
pursuant
also
49
independent
accuracy
regulatory
C.F.R.
and
and
to
§ 40.123(a)
impartial
integrity
procedure.”
of
(An
MRO
‘gatekeeper’
and
the
drug
testing
process.”); id. § 40.137(a) (An MRO “must verify a confirmed
positive test result for . . . amphetamines . . . unless the
employee
presents
presence
of
§ 40.123(c)
the
(An
a
legitimate
drug[]
MRO
.
.
“must
.
medical
in
his
determine
explanation
or
her
whether
for
the
system.”);
id.
there
is
a
legitimate medical explanation for confirmed positive . . . drug
tests results from the laboratory.”).
We agree with Appellant.
First, the complaint can
only be read to lodge an ADA claim based on conduct leading up
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to Prime’s failure to hire him in November 2010.
For example,
Appellant alleges that Prime violated the ADA by
•
refusing to hire him, even though he
complied with Dr. Mauldin’s request for
more information regarding his medical
qualifications,
and
even
though
that
information showed his narcolepsy had been
under control for many years;
•
refusing to hire him because he tested
positive for amphetamines;
•
failing
to
accept
his
physician’s
explanation for the positive drug test;
•
failing to proceed with the hiring process
in light of the information from Dr.
Crook,
and
insisting
he
change
medications;
•
reporting a positive drug test; and
•
failing to correct the false drug test
report made to the FMCSA, DOT, or others.
See J.A. 14-15.
hire
Appellant
Mauldin
Appellant does not allege that Prime failed to
because
reported
of
the
his
qualifications to Prime.
Mauldin
concerns
Letter,
regarding
or
that
Dr.
Appellant’s
Therefore, any opinion Dr. Mauldin may
have had about Appellant’s qualifications did not serve as a
basis for Prime’s refusal to hire him.
Having
properly
framed
the
basis
for
Appellant’s
claim, we next observe that in the time leading up to November
2010,
there
was
qualifications.
no
“disagreement”
There
is
no
10
about
question
Appellant’s
Dr.
Crook
medical
believed
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Appellant was medically qualified if he took proper medication.
And the only reasonable inference to be drawn from the complaint
is that Prime did not reject Appellant’s application outright
because
he
Appellant
had
narcolepsy;
would
return
employment
once
he
Provigil.
In
fact,
to
rather,
orientation
successfully
Prime
told
Prime
anticipated
and
be
switched
him
as
his
that
considered
medication
much.
See
J.A.
for
to
11
(Dr. Abraham told Appellant he “need[ed] to be on [Provigil] for
at least 6 weeks [and] document[] [his] stability.”); see also
id.
(“[T]he
medication
Abraham
nurse
[stated]
Provigil,
agreed
with
that
but
not
Dr.
Crook
[Prime]
would
Dexedrine.”).
that
Appellant
accept
the
Therefore,
Dr.
was
medically
qualified for employment with Prime, as long as he took proper
medication.
Because
Appellant’s
claim
is
not
based
on
a
disagreement between physicians, but rather, on Prime’s failure
to hire Appellant due to his positive drug test, cases upon
which Prime relies are of no import.
See, e.g., Harris v.
P.A.M. Transp., Inc., 339 F.3d 635, 639 (8th Cir. 2003) (Where
company’s physicians and medical review staff disagreed with a
third party physician’s conclusions that a prospective driver
was
medically
certified
to
drive,
“[a]ccording
to
49
C.F.R.
§ 391.47(b)(2), that disagreement brings the question of [the
driver]’s physical qualification within the sole province of the
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DOT.”); Campbell v. Fed. Express Corp., 918 F. Supp. 912, 918
(D. Md. 1996) (“In a case where there are conflicting medical
evaluations, such as the conflict [the driver] faced between
[two separate companies’] examination outcomes, the driver may
submit an
application
for
resolution
of
the
conflict
to
the
[FMCSA].” (emphasis supplied)); Hill v. Houff Transfer, Inc.,
No. 3:12-cv-357, 2012 WL 5194080, at *3 (E.D. Va. Oct. 19, 2012)
(driver’s
physician
“disagree[d]”
with
third-party
physician
about his qualifications to remain a commercial truck driver,
and thus, “[section] 391.47’s procedures appl[ied]”).
The discrete issue before us is more akin to the issue
presented
in
Stevens
v.
Coach
U.S.A.,
wherein
a
bus
driver,
Stevens, took a medical leave of absence from his duties with
Coach, U.S.A. (“Coach”).
2005).
See 386 F. Supp. 2d 55 (D. Conn.
Stevens’s physician and Coach’s medical examiner both
cleared him to return to work.
See id. at 58-59.
But before
Coach allowed him to return on a permanent basis, it “sent him
through a series of hurdles that prevented his medical fitness
from
ever
being
determined.”
Id.
at
65.
The
District
of
Connecticut concluded 49 C.F.R. § 391.47(b)(2) was inapplicable
because
“the
crux
of
Stevens’
complaint”
“cannot
be
characterized as ‘a disagreement between the physician for the
driver and the physician for the motor carrier.’”
12
Id. (quoting
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49 C.F.R. § 391.47(b)(2)).
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“[H]urdle[]”-jumping, rather than
medical disagreement, is precisely what happened here.
Id. 3
III.
For
the
foregoing
reasons,
we
vacate
the
district
court’s judgment and remand for further proceedings. 4
VACATED AND REMANDED
3
After the district court’s dismissal of the complaint,
FMCSA’s Office of Chief Counsel issued an opinion letter, which,
though not binding on this court, is in accord with our
decision.
The letter states that the FMCSA does not have
“provisions for administrative review procedures that would
address
[Appellant’s]
grievances
.
.
.
.”
J.A.
79.
Specifically, the FMCSA believed “[t]he record does not contain
evidence of a present conflict concerning [Appellant’s] medical
qualifications . . . .” Id.
4
After oral argument, Appellant filed a motion to
supplement the record on appeal. See Mot. Suppl. R. on Appeal,
Lisotto v. New Prime, Inc., No. 15-1273 (4th Cir. Mar. 22,
2016), ECF No. 44. We deny this motion as moot.
13
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