Equal Employment Opportunity Commission v. Old Dominion Freight Line, Inc.
AMENDED AND SUBSTITUTED ORDER re order 138 denying 87 MOTION for Summary Judgment filed by Old Dominion Freight Line, Inc., and denying 84 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. Further case stayed, as set forth. Signed by Honorable Jimm Larry Hendren, June 26, 2013.(sh) Modified to add text on 6/26/2013 (sh).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
Civil No. 11-2153
OLD DOMINION FREIGHT LINE, INC.
AMENDED AND SUBSTITUTED ORDER
Now on this 26th day of June, 2013, the Court enters this
Amended And Substituted Order regarding Plaintiff's Motion For
Summary Judgment On The Issue Of Liability (document #84) and
reasons set forth in ¶ 5(a) hereof:
("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-
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
EEOC seeks compensatory and punitive damages for Grams2, and
injunctive relief preventing Old Dominion from enforcing the
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.
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.
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.
EEOC initially also sought damages for other affected drivers, but it appears to
have abandoned all individual claims except that of Grams.
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).
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:
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
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
Rhodes, Manager of the Fort Smith Service Center where Grams
Thornton then contacted Rhodes to let him know about
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
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.
Rhodes told Grams
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
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
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 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.
returning Grams to a driving position.
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
St. Martin v. City of St. Paul, 680 F.3d 1027 (8th Cir. 2012).
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).
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
Old Dominion does not dispute that Grams' suspension from driving and relegation
to a dock worker position constitutes an adverse employment action.
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
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
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.
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,
supervising an employee who essentially carries out his job duties
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
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.
program arises from the structure of the FMCSRs:
successfully complete the referral/evaluation/treatment process
before a return to driving if he commits a DOT alcohol regulation
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
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
The applicable regulation, 49 C.F.R. § 382.121(a),
"[e]mployees who admit to alcohol misuse . . . are not
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 . . .
The "referral, evaluation, and treatment" requirements of "this part" are found
in Part 40, Subpart O. 49 C.F.R. § 382.605.
by drivers of commercial vehicles." 49 C.F.R. § 382.101.
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
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
disabled by reason of alcoholism -- it suspended Grams from
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.
Old Dominion counters that it could not return Grams to
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
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
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. §
The "business necessity" of not having an alcoholic
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).
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.
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
While the Court appreciates Old Dominion's safety concerns,
possibility of accommodation -- cannot be justified either on
public safety concerns or business necessity considerations.
this reason, it violates the ADA as a matter of law, and amounts
to a denial of reasonable accommodation to Grams.
5(a). At pre-trial conference on June 25, 2013, Old Dominion
moved the Court to amend the instant Order, pursuant to 28 U.S.C.
§ 1292(b), by finding that its decision on the foregoing policy
issue is a controlling question of law as to which there is
immediate appeal from this Order may materially advance ultimate
termination of this litigation.
While the Court believes it has rightly decided the policy
issue, it agrees that there is substantial ground for difference
of opinion on the issue.
Moreover, because the policy issue
permeates the case as it pertains to possible compensation for
Grams as a result of application of the policy to him, the Court
is persuaded that an appellate ruling on the policy issue may
materially advance ultimate termination of this litigation.
Therefore, over objection by EEOC, the Court will make the finding
specified in § 1292(b).
EEOC contends that it was also a violation of the ADA to
r e q ui r e
referral/evaluation/treatment process before he could work as a
dock hand, and to discharge him when he indicated that he was not
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.
classifying dock work as a safety-sensitive position, or otherwise
indicating that alcoholism is a disqualification for dock work.
employee to go through the referral/evaluation/treatment process,
as opposed to AA or some other type of treatment, before doing
Grams testified that he told Rhodes he was not quitting,
and he called Rhodes on July 6, 2009, to ask when he could return
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.
Based on the analysis of the issues in this Order, the
Court finds that EEOC can make out a prima facie case that Old
For that reason, Old Dominion's Motion For Summary
Judgment will be denied.
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.
example, the following issues (and the Court does not intend this
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
Did Old Dominion's no-return policy deter Grams from
completing the referral/evaluation/treatment process?
Does Old Dominion's policy of conditioning reassignment
referral/evaluation/treatment program violate the ADA?
Would Grams have accepted a dock worker position if it
Has Grams sustained damages, and if so, what are they?
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
It follows that EEOC is entitled to injunctive relief in
the form of an order preventing Old Dominion from enforcing the
incorporated in the judgment to be entered when trial of this case
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
IT IS FURTHER ORDERED that the Court's determination that Old
Dominion's no-return policy violates the ADA as a matter of law is
a controlling question of law as to which there is substantial
ground for difference of opinion, and that an immediate appeal of
this Order may materially advance the ultimate termination of this
IT IS FURTHER ORDERED that this case is stayed for ten days,
to allow any party to file a notice of appeal from this Order, and
that should such notice of appeal be timely filed, the case will
be stayed until disposition of such appeal by the Eighth Circuit
Court of Appeals.
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?