Equal Employment Opportunity Commission v. Old Dominion Freight Line, Inc.

Filing 138

ORDER denying 84 Plaintiff's Motion for Summary Judgment and denying 87 denying Defendant's Motion for Summary Judgment. Signed by Honorable Jimm Larry Hendren on June 24, 2013. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
v.

PLAINTIFF

Civil No. 11-2153

OLD DOMINION FREIGHT LINE, INC.

DEFENDANT

O R D E R
Now on this 24th day of June, 2013, come on for consideration
Plaintiff's Motion For Summary Judgment On The Issue Of Liability
(document

#84)

and

Defendant's

Motion

For

Summary

Judgment

(document #87), and from said motions, and the responses thereto,
the Court finds and orders as follows:
1.

Plaintiff

Equal

Employment

Opportunity

Commission

("EEOC") brought suit upon the charge of Charles Grams ("Grams")
that he was denied reasonable accommodation and his employment was
terminated in violation of the Americans With Disabilities Act as
amended by the Americans with Disabilities Amendment Act (the
"ADA" or "Act"), due to a policy of defendant Old Dominion Freight
Line, Inc. ("Old Dominion").
The challenged policy, according to the EEOC, prohibits any
Old Dominion driver impaired by alcoholism1 from returning to a
commercial driving position, and conditions return to a non-

1
Several different terms are used in the pleadings and the briefs to refer to
conditions related to the misuse of alcohol, including alcohol abuse, alcohol
dependence, and alcoholism. In this Order the Court will use the term alcoholism -which appears to be a lay term -- merely for convenience and consistency.

driving position upon enrollment in a substance abuse treatment
program.
EEOC seeks compensatory and punitive damages for Grams2, and
injunctive relief preventing Old Dominion from enforcing the
challenged policy
2.

Old Dominion admits that it is a covered entity under

the ADA, and that all conditions precedent to the institution of
the ADA claim have been satisfied, but denies that it violated the
Act in any way.

Both parties now move for summary judgment, and

the motions are ripe for decision.
3.

The

standard

governing

evaluation

of

a

motion

for

summary judgment has been well summarized as follows:
[S]ummary judgment is proper if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to
judgment as a matter of law.
The movant bears the
initial responsibility of informing the district court
of the basis for its motion, and must identify those
portions of [the record] . . . which it believes
demonstrate the absence of a genuine issue of material
fact. If the movant does so, the nonmovant must respond
by submitting evidentiary materials that set out
specific facts showing that there is a genuine issue for
trial. . . . The nonmovant must do more than simply show
that there is some metaphysical doubt as to the material
facts, and must come forward with specific facts showing
that there is a genuine issue for trial.
Where the
record as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no
genuine issue for trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.
2

EEOC initially also sought damages for other affected drivers, but it appears to
have abandoned all individual claims except that of Grams.

-2-

2011) (internal citations and quotation marks omitted).
Where there are genuine factual disputes, the Court is
required to view the facts and draw reasonable inferences in the
light most favorable to the party opposing summary judgment. Scott
v. Harris, 550 U.S. 372, 378 (2007).
4.

Pursuant to Local Rule 56.1, the parties have filed

statements of facts which they contend are not in dispute. From
those statements, the following significant undisputed facts are
made to appear:
*

Old

Dominion

is

a

for-hire

motor

carrier

company

providing worldwide transportation services.
*

Charles Grams obtained a commercial drivers license

("CDL") in 1991 or 1992, and began employment as a commercial
driver for Old Dominion on November 29, 2004.
*

As a commercial driver, Grams knew and understood the

requirements of the Federal Motor Carrier Safety Regulations
("FMCSRs").
*

Grams worked for Old Dominion for five years without any

major accidents or incidents.
*

On June 29, 2009, Grams telephoned his supervisor,

Tilden Thornton, and informed Thornton that he drank too much
alcohol over the weekend; that he thought he was an alcoholic; and
that he was going to an Alcoholics Anonymous ("AA") meeting.
*

Thornton advised Grams that Grams needed to talk to Luke
-3-

Rhodes, Manager of the Fort Smith Service Center where Grams
worked.

Thornton then contacted Rhodes to let him know about

Grams' disclosure.
*

Rhodes, in turn, contacted David Bates, Regional Vice

President of Old Dominion.

Bates brought the matter to the

attention of Brian Stoddard, Old Dominion's Vice President of
Safety and Personnel.
*

Stoddard instructed Rhodes to remove Grams from his

driving position, and told him that Grams had to be evaluated by
a Substance Abuse Professional ("SAP") qualified by the Department
of Transportation ("DOT").

Stoddard further told Rhodes that

Grams could not be returned to work until he completed treatment
and was released to return to work, and that once Grams was
returned to work, he would not be permitted to return to a driving
position.
*

Old Dominion has an unwritten policy that it will not

allow a driver who has self-disclosed an alcohol problem to ever
return to driving status.
*

Later in the day on June 29, 2009, Grams went to the

Fort Smith Service Center to talk to Rhodes.
that

he

was

suspended

from

driving

and

Rhodes told Grams

conveyed

Stoddard's

instructions about the steps he needed to take before he would be
eligible to return to work, but did not tell Grams that he would
be disqualified from driving regardless of what treatment he

-4-

received.

At Grams' request, Rhodes located a DOT-qualified SAP,

Lisa Jackson, and gave Grams her contact information.
*

On July 1, 2009, Grams was evaluated by Jackson, who

recommended a course of outpatient treatment.
*

On July 6, 2009, Grams again met with Rhodes, and

expressed concern about his inability to pay the out-of-pocket
portion of the treatment recommended by Jackson.

At this meeting

Grams learned that he would not be allowed to return to a driving
position under any circumstances, and that the only non-driving
position available at the Fort Smith Service Center was as a parttime dock worker.
*

On or about July 24, 2009, Grams told Rhodes that

because insurance only covered 60% of the cost of outpatient
treatment, and because he could not afford the out-of-pocket
portion,

he

treatment.

would

not

be

doing

the

recommended

outpatient

Rhodes advised Grams that he needed to complete the

treatment as a condition of continued employment.
*

On or about July 24, 2009, Old Dominion terminated

Grams.
*

Grams did not try to obtain coverage for the outpatient

treatment under his wife's health insurance, or seek financial
assistance for the treatment. Grams never attended the outpatient
treatment recommended by the SAP, but he did attend AA meetings.
*

Old

Dominion

did

not

-5-

conduct

an

individualized

assessment

with

regard

to

any

risk

that

would

be

posed

by

returning Grams to a driving position.
5.

An individual seeking to recover under the ADA on a

claim of disability discrimination must establish:
*

that he is a disabled person as defined by the ADA;

*

that he is qualified to perform the essential functions

of his job with or without reasonable accommodation; and
* that he suffered an adverse employment action because of
his disability.3
St. Martin v. City of St. Paul, 680 F.3d 1027 (8th Cir. 2012).
(a)

Is Grams a Disabled Person?

The term "disability" as used in the ADA means "a physical or
mental impairment that substantially limits one or more major life
activities," a record of such impairment, or being regarded as
having such impairment.

42 U.S.C. § 12102(1). Alcoholism is an

impairment covered by the ADA.

Miners v. Cargill Communications,

Inc., 113 F.3d 820, 823 n. 5 (8th Cir. 1997).
Old

Dominion

contends

that

Grams

is

not

disabled

by

alcoholism because it does not "substantially" limit his ability
to work, in that Grams has not shown that he is restricted from a
class of jobs or a broad range of jobs in many classes.
This argument ignores the fact that work is not the only

3

Old Dominion does not dispute that Grams' suspension from driving and relegation
to a dock worker position constitutes an adverse employment action.

-6-

major

life

alcoholism.

activity

covered

by

the

Act

that

is

limited

by

Seeing, walking, speaking, learning, concentrating,

thinking, and communicating are other major life activities that
might also be limited.

42 U.S.C. § 12102(2)(A).

The argument also overlooks the fact that Old Dominion
treated alcoholism as something that required treatment before
Grams could even work as a dock hand, from which reasonable jurors
might

conclude

that

being

regarded

as

an

alcoholic

would

substantially limit Grams' ability to work in a broad range of
jobs in many classes.
Viewing the evidence in the light most favorable to Grams,
and giving it the reasonable inferences favorable to Grams, the
Court believes that Grams can present evidence from which jurors,
who may use their common sense in deciding cases, could determine
that Grams is a disabled person under the Act.
(b) Is Grams Qualified To Perform The Essential Functions of
His Job?
A person is "qualified" under the ADA if he can, "with or
without reasonable accommodation, perform the essential functions
of the employment position."

42 U.S.C. § 12111(8).

Old Dominion does not dispute the fact that, until June 29,
2009, Grams carried out the essential functions of his job as a
commercial driver to his employer's satisfaction, i.e., that he
was qualified by training, experience and skill to do the job.
-7-

Its qualification argument focuses on the safety justifications
that underpin its no-return policy. Noting that driving an 80,000
pound commercial vehicle is a safety-sensitive function (see 49
C.F.R. § 382.503), Old Dominion states that it has made an
appropriate policy decision that it is unsafe to entrust the
driving of such a vehicle to an alcoholic under any circumstances,
given

the

possibility

of

a

relapse

and

the

difficulty

of

supervising an employee who essentially carries out his job duties
alone.
Old Dominion also argues that Grams is not qualified because
he did not complete the treatment recommended by the SAP, so 49
C.F.R. § 40.301(d) prohibits it from returning him to safetysensitive duties, and that, even if he had completed the treatment
program, the FMCSRs do not require it to return a driver to a
safety-sensitive

position

upon

successful

referral/evaluation/treatment process.

completion

of

the

49 C.F.R. § 40.305(b).

In response to these arguments, EEOC contends that the
referral/evaluation/treatment process should not ever have been
required of Grams and that Old Dominion's "no-return" policy is a
violation of the ADA as a matter of law.
The

dispute

concerning

the

referral/evaluation/treatment

program arises from the structure of the FMCSRs:
*

These

regulations

require

that

a

driver

must

successfully complete the referral/evaluation/treatment process
-8-

before a return to driving if he commits a DOT alcohol regulation
violation.
*

49 C.F.R. § 40.285(a).
They also prescribe a similar process in situations

where a driver's alcohol problem comes to the employer's attention
through a voluntary report by the driver rather than as a result
of a DOT violation -- as long as the employer has a "written
employer-established

voluntary

self-identification

program

or

policy." 49 C.F.R. § 382.121(a).
*

The regulations are less clear, however, as to what is

required to be done if a driver self-reports an alcohol problem
and the employer has no such written program or policy.
Notwithstanding this lack of clarity in the regulations with
respect to a self-reporting situation like this one, the Court
does not accept EEOC's contention that Old Dominion could not
require
process.

Grams

to

complete

the

referral/evaluation/treatment

The applicable regulation, 49 C.F.R. § 382.121(a),

provides that
"[e]mployees who admit to alcohol misuse . . . are not
subject
to
the
referral,
evaluation
and
treatment
requirements of this part4 and part 40 of this title,
provided that: (1) The admission is in accordance with a
written employer-established voluntary self-identification
program or policy. . . ."
The FMSCRs "establish programs designed to help prevent
accidents and injuries resulting from the misuse of alcohol . . .

4

The "referral, evaluation, and treatment" requirements of "this part" are found
in Part 40, Subpart O. 49 C.F.R. § 382.605.

-9-

by drivers of commercial vehicles." 49 C.F.R. § 382.101.

It is

reasonable to interpret them in such a way as to accomplish that
worthy goal. In light of this purpose, the Court interprets §
382.1010 to mean that drivers who admit to alcohol misuse where
there

is

no

written

company

policy

are

subject

to

the

referral/evaluation/treatment requirements of Part 40.
It, therefore follows that, because Old Dominion did not have
a written voluntary self-identification program or policy, when
Grams made his telephone call to Thornton on June 29, 2009, he
became subject to the referral/evaluation/treatment requirements
of Part 40 -- and specifically to Subpart O.

The Court believes

this conclusion to be sound even though Grams had not committed a
DOT violation (the trigger for action under Subpart O) because a
contrary interpretation would run counter to the overall purposes
of § 382.121.
For the foregoing reasons, the Court concludes that Old
Dominion

did

not

violate

the

ADA when

--

considering

Grams

disabled by reason of alcoholism -- it suspended Grams from
driving

and

required

referral/evaluation/treatment

him

to

process

go

through

before

returning

the
to

a

safety-sensitive position.
(c)

Did Old Dominion Afford Grams Reasonable Accommodation?

EEOC contends that Old Dominion violated the ADA when it
failed to accommodate Grams' disability by its no-return policy.
-10-

Old Dominion counters that it could not return Grams to
driving

a

truck

because

never

process,

referral/evaluation/treatment

he

and

completed
that

it

was

the
not

required by DOT regulations to reinstate him even if he did
complete the process. Old Dominion also contends that as a matter
of business necessity and concern for public safety it made a
policy decision that alcoholic drivers in its employ could never
return to driving.
(1) As to the first of these arguments, the Court notes
that there is evidence from which reasonable jurors could conclude
that

the

reason

Grams

did

not

complete

the

referral/evaluation/treatment process was that he was disheartened
by learning that he would not be allowed to return to driving even
if he did complete it, and that he legitimately felt there was no
point

in

using

his

limited

financial

resources

to

pay

for

treatment that had no prospect of helping him get his job back.
Thus, this argument is not persuasive.
(2) The second argument is also not persuasive, in that
it amounts to a contention that Old Dominion can completely
refuse to consider any and all accommodations for a driver who is
disabled by alcoholism.
It is discriminatory to use qualification standards that
screen out an individual with a disability, unless the standard is
job-related and consistent with business necessity. 42 U.S.C. §

-11-

12112(b)(6).
driving

The "business necessity" of not having an alcoholic

a

commercial

vehicle

referral/evaluation/treatment

is

served

by

but

it

serve no

process,

would

the

business necessity to require the driver to go through this
process if there were no possibility that it could result in
accommodating the disability of alcoholism.
Old Dominion's safety concerns fall under the ADA rubric of
"direct threat," defined as "a significant risk of substantial
harm to the health or safety of the individual or others that
cannot be eliminated or reduced by reasonable accommodation."
C.F.R. § 1630.2(r).

29

The determination of whether an employee

presents this type of risk "shall be based on an individualized
assessment of the individual's present ability to safely perform
the essential functions of the job." Id.
Old

Dominion's

individualized
process.

no-return

assessment,

and

policy

admits

provides

no

of

such

no

such

interactive

EEOC suggests that a reasonable accommodation might be

to install a breathalyzer in Grams' truck to insure that he could
not drive it if impaired, but under Old Dominion's policy, such an
accommodation -- whether reasonable or not -- cannot even be
considered.
While the Court appreciates Old Dominion's safety concerns,
its

no-return

policy

--

which

fails

to

even

consider

the

possibility of accommodation -- cannot be justified either on
-12-

public safety concerns or business necessity considerations.

For

this reason, it violates the ADA as a matter of law, and amounts
to a denial of reasonable accommodation to Grams.
6.

EEOC contends that it was also a violation of the ADA to

r e q ui r e

Grams

to

successf u l l y

c o m p lete

the

referral/evaluation/treatment process before he could work as a
dock hand, and to discharge him when he indicated that he was not
going

to go

Anonymous

for

through
help

the

process, but

instead.

would

Old Dominion

rely

Alcoholics

contends

that it

terminated Grams for job abandonment.
The Court believes the evidence -- viewed in the light most
favorable to Grams and drawing inferences reasonable to him -would allow a reasonable jury to find that Old Dominion's claim of
job abandonment was a mere pretext for discrimination.
*

Old

Dominion

cites

no

law,

rule

or

regulation

classifying dock work as a safety-sensitive position, or otherwise
indicating that alcoholism is a disqualification for dock work.
It

cites

nothing

that

would

justify

requiring

an

alcoholic

employee to go through the referral/evaluation/treatment process,
as opposed to AA or some other type of treatment, before doing
dock work.
*

Grams testified that he told Rhodes he was not quitting,

and he called Rhodes on July 6, 2009, to ask when he could return
to work.

-13-

*

On July 13, 2009, Grams wrote a "To whom it may concern"

letter requesting reinstatement and, that same day, Rhodes emailed Stoddard stating that "I am under the understanding that he
is ready to return to work as a dock worker as soon as he has
started his outpatient treatment, which I believe is tomorrow."
*

On July 24, 2009, Rhodes e-mailed Stoddard to say that

Grams had come by and reported he could not afford treatment since
his insurance would only cover 60% of the cost, but that he
"refused to quit because he felt he had done nothing wrong."
Stoddard advised Rhodes to "[p]roceed with job abandonment."
Under this state of the evidence, reasonable jurors could
find that Old Dominion violated the ADA by imposing a requirement
of referral/evaluation/treatment on an alcoholic employee that it
has not shown to be related to either the job or the disability,
and then terminating that employee when he did not comply.
7.

Based on the analysis of the issues in this Order, the

Court finds that EEOC can make out a prima facie case that Old
Dominion

discriminated

alcoholism.

against

Grams

on

the

basis

of

his

For that reason, Old Dominion's Motion For Summary

Judgment will be denied.
8.

EEOC's Motion For Summary Judgment will also be denied,

because material issues of fact remain to be resolved before any
liability on the part of Old Dominion is established.

For

example, the following issues (and the Court does not intend this

-14-

to be an all-inclusive list) remain for jury consideration:
*

Was Grams' disabled under the terms of the ADA, i.e.,

did his alcoholism substantially limit one or more major life
activities?
*

Did Old Dominion's no-return policy deter Grams from

completing the referral/evaluation/treatment process?
*

Would

Grams

have

referral/evaluation/treatment

successfully
process

if

he

completed
had

not

been

the
so

deterred?
*
to

a

Does Old Dominion's policy of conditioning reassignment
non-driving

position

on

successful

completion

of

the

referral/evaluation/treatment program violate the ADA?
*
had

Would Grams have accepted a dock worker position if it
not

been

conditioned

on

completing

the

referral/evaluation/treatment program?
*

Has Grams sustained damages, and if so, what are they?

9.

EEOC also seeks injunctive relief that would force Old

Dominion to change its policy relating to alcoholism.
For the reasons set out ¶5 of this Order, the Court finds
that Old Dominion's no-return policy violates the ADA as a matter
of law.

It follows that EEOC is entit led to injunctive relief in

the form of an order preventing Old Dominion from enforcing the
policy

as

articulated

herein,

and

such

an

order

will

be

incorporated in the judgment to be entered when trial of this case

-15-

is concluded.
IT IS THEREFORE ORDERED that Plaintiff's Motion For Summary
Judgment On The Issue Of Liability (document #84) is denied,
except as to the Court's determination that Old Dominion's noreturn policy violates the ADA as a matter of law, which will be
incorporated in the judgment to be entered when this case is
concluded.
IT IS FURTHER ORDERED that Defendant's Motion For Summary
Judgment (document #87) is denied.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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