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

Filing 55

ORDER denying Defendant's Motion to Dismiss Charles Grams' Complaint in Intervention 28 ; granting 43 Defendant's Motion to Strike and the Amended and Substituted Complaint of Intervenor Charles Grams doc. 30 is stricken from the record and held for naught; Denying in part and granting in part 17 the MOTION is granted to the extent that is seeks clarification of the EEOC Complaint, and denied in all other respects. EEOC is directed to file an Amended Complaint clarifying it s "policy violation" claim within ten days of the date of this order; granting Defendant's motion to file and Amended Complaint 46 ; and denying Defendant's Unopposed MOTION for Leave to File A Reply Brief in Support of its Motion to Strike Grams' Amended Complaint in Intervention 48 . Signed by Honorable Jimm Larry Hendren on April 23, 2012. (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

23rd

day

of

April,

2012,

come

on

for

consideration the following:
*

defendant's Motion To Dismiss (document #17);

*

Defendant's Motion To Dismiss Charles Grams' Complaint

In Intervention (document #28);
*

Defendant's Motion To Strike Intervenor Charles Grams'

Amended And Substituted Complaint In Intervention (document #43);
*

Grams's Motion For Leave To File An Amended Complaint

(document #46); and
*

Defendant's Unopposed Motion For Leave To File A Reply

Brief In Support Of Its Motion To Strike Grams' Amended Complaint
In Intervention (document #48),
and from said motions, and the responses thereto, the Court finds
and orders as follows:
1.

Plaintiff

Equal

Employment

Opportunity

Commission

("EEOC") brought suit (the "EEOC Complaint") upon the charge of
Charles

Grams

("Grams")

that

he

was

denied

reasonable

accommodation under the Americans With Disabilities Act ("ADA") by
policies of defendant Old Dominion Freight Line, Inc. ("Old
Dominion").

Those policies, according to the EEOC Complaint,

prohibit any truck driver who self-reports alcohol abuse from
returning to a driving position, and condition return to a nondriving position upon enrollment in a treatment program.
2.

Old

Dominion

moved

to

dismiss

the

EEOC

Complaint

("Motion To Dismiss EEOC") for failure to state a claim.
To survive such a motion,
a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility
when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.
*

*

*

. . . The tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable
to legal conclusions.
Threadbare recitals of the
elements of a cause of action, supported by mere
conclusory statements, do not suffice.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal citations
and quotation marks omitted).
3.

With the foregoing in mind, the Court turns to an

examination of the EEOC Complaint, and finds the following factual

-2-

allegations:
*

that Grams was a driver for Old Dominion, a trucking

company;
*

that on June 29, 2009, Grams self-reported to his

supervisor that he had an alcohol abuse problem;
*

that Old Dominion immediately suspended Grams;

*

that pursuant to Department of Transportation ("DOT")

regulations, on July 1, 2009, Grams met with a DOT-certified
Substance Abuse Professional ("SAP");
*

that the SAP indicated Grams would participate in out-

patient treatment and could return to work;
*

that Old Dominion's Manager of Sales and Service told

Grams he would never return to a driving position;
*

that

Old

Dominion's

Vice

President

of

Safety

and

Personnel told Grams he would probably never return to a driving
position;
*

that Old Dominion offered to give Grams a dock worker

position when one became available;
*

that Grams is a qualified individual with a disability

under the ADA who can perform the essential functions of a driving
position;
*

that Old Dominion failed to reasonably accommodate Grams

when it told him it could place him in a position only when one
became available;

-3-

*

that

Grams

believed

he

could

not

afford

private

outpatient treatment;
*

that Grams began attending Alcoholics Anonymous and told

Old Dominion that he was attending group treatment and could not
afford private outpatient treatment;
*

that Old Dominion terminated Grams on July 24, 2009, for

job abandonment;
*

that Old Dominion has a policy that permanently bans an

employee disabled by alcoholism from returning to a driving
position;
*

that the effect of this policy is to deprive affected

drivers of equal employment opportunities, in violation of the
ADA;
*

that this policy and its practice are carried out

intentionally,

with

malice

or

reckless

indifference

to

the

federally protected rights of Grams and other affected drivers;
*

that

Old

Dominion

has

a

policy

that

requires

any

employee disabled by alcoholism to enter a rehabilitation program
of Old Dominion's choosing for the employee to retain his or her
employment;
*

that Grams and other similarly-affected employees were

able to perform their jobs without treatment;
*

that the effect of this policy is to deprive affected

employees of equal employment opportunities, in violation of the

-4-

ADA; and
*

that this policy and its practice are carried out

intentionally,

with

malice

or

reckless

indifference

to

the

federally protected rights of Grams and other affected employees.
4.

In order to make out a prima facie case under the ADA,

the EEOC must show:
*

that Grams has a disability within the meaning of the

*

that

ADA;

function

of

Grams
his

was

job,

qualified
either

to

with

perform
or

the

without

essential
reasonable

accommodation; and
*

that Grams suffered adverse employment actions because

of his disability.
Cooper v. Olin Corp., Winchester Div., 246 F.3d 1083, 1087 (8th
Cir. 2001).
5.

Old Dominion first contends that the EEOC failed to

plead facts sufficient to support a finding that Grams' alcoholism
is a disability.

The Court disagrees.

"Disability" within the

meaning of the ADA includes being regarded as having an impairment
that substantially limits one or more major life activities. 42
U.S.C. § 12102(1)(C).
U.S.C.

§

12102(2)(A).

Working is a major life activity.
The

EEOC

Complaint

alleges

42

that Old

Dominion immediately suspended Grams from driving upon hearing his
report of alcoholism, told him he would never be allowed to drive
-5-

for the company again, and terminated him when he failed to obtain
private outpatient treatment for the condition.
These facts will support an inference that Old Dominion
regarded Grams as being disabled by alcoholism, and that is
sufficient at the pleading stage.

"Asking for plausible grounds

to infer" an element of the cause of action "does not impose a
probability requirement at the pleading stage;

it simply calls

for enough fact to raise a reasonable expectation that discovery
will reveal evidence" of the cause of action. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 556 (2007).
6.

Old Dominion next contends that the EEOC failed to plead

facts sufficient to support a finding that Grams was a qualified
individual under the ADA by
*

failing to plead that Grams has no current clinical

diagnosis of alcoholism, which is a requirement for driving a
commercial motor vehicle under 49 C.F.R. § 391.41(b)(13); and
*

affirmatively pleading that Grams did not comply with

the SAP's recommended treatment plan.
The Court does not find these contentions fatal to the EEOC
Complaint.

Fairly read, the EEOC Complaint does not contend that

discrimination inhered in Old Dominion's suspension of Grams from
driving, but rather in its alleged policy of denying an alcoholic
the right to ever return to driving under any circumstances; in
its alleged failure to reasonably accommodate Grams with another
-6-

position; and in its ultimate termination of Grams.
7.

Finally,

Old

Dominion

contends

that

it

is

unclear

whether the EEOC intended to plead a "pattern or practice" claim,
and asks that the EEOC be "required to properly and clearly plead
the nature of its claims."
The EEOC responds that it is not alleging a "pattern or
practice" claim, but a "policy violation" under 42 U.S.C. §
12112(a).

That statute simply reads as follows:

No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment.
This language does little to resolve the scope of the EEOC
Complaint, and the Court agrees with Old Dominion that the EEOC
should be required to clearly plead the nature of any claims it is
making that are not specific to the treatment of Grams.
For the foregoing reasons, the Court concludes that the
Motion To Dismiss EEOC should be granted to the extent that it
seeks clarification of the EEOC Complaint, and denied in all other
respects.
8.

While the Motion To Dismiss EEOC was pending, Grams

moved to intervene.

Under 42 U.S.C. § 2000e-5(f)(1), a person

aggrieved by an act of discrimination "shall have the right to
intervene in a civil action brought by" the EEOC, and Grams'
motion was granted.

Grams' Complaint In Intervention is a two-7-

paragraph document that incorporates the EEOC Complaint and prays
for judgment in Grams' favor for various categories of damages
personal to him.
9.

Old

Dominion

moved

to

dismiss

the

Complaint

In

Intervention ("Motion To Dismiss Grams"), incorporating its Motion
To Dismiss EEOC.

This motion will be denied, for the reasons set

out in ¶¶ 5-6, and because the EEOC is directed to cure the only
problem found with the EEOC Complaint, which Grams' incorporates,
so that Grams need not replead.
10.

Rather than respond to the Motion To Dismiss Grams,

Grams filed an Amended And Substituted Complaint Of Intervenor
Charles Grams ("Grams' Amended Complaint"), in which he again
incorporated the EEOC Complaint, but also devoted some seven pages
to additional allegations.
11.

Old Dominion moved to strike Grams' Amended Complaint,

making three arguments:
*

first, that the Court had already denied Grams leave to

amend before he filed Grams' Amended Complaint;
*

second, that the document would interject a new issue

into the case; and
*

third, that Grams' Amended Complaint contains what Old

Dominion characterizes as "impertinent matter."
12.

The background of the first of these arguments is as

follows. Before being granted leave to intervene, Grams had moved

-8-

for leave to respond to the Motion To Dismiss EEOC.

In that

motion he sought, as an alternative form of relief, leave to file
"a more comprehensive complaint in intervention than the one [he]
previously proposed."
The Court granted Grams leave to respond to the Motion To
Dismiss EEOC, but denied the alternative relief, citing Grams'
failure to comply with Local Rule 5.5(e), which requires a party
moving to amend a pleading to attach a copy of the proposed
amendment to the motion.
Grams then filed his two-paragraph Complaint In Intervention,
and Old Dominion filed its Motion To Dismiss Grams.

Without

seeking leave further, Grams then filed his Amended Complaint. In
it, he states that he is entitled to file an amended complaint as
a matter of course pursuant to F.R.C.P. 15(a)(1), which allows a
party to amend a pleading to which a responsive pleading is
required once, as a matter of course, within 21 days of service.
His reasoning appears to be that although the Court had denied his
motion for leave to amend, in accordance with Local Rule 5.5, it
had not closed the door to his filing an amended pleading in
accordance with F.R.C.P. 15.
13.

The problem with this line of reasoning is to be found

in the nature of intervention.

As explained in Wright, Miller &

Kane,

Procedure:

Federal

Practice

and

Civil

3d,

§

1901,

intervention is "a procedure by which an outsider with an interest
-9-

in a lawsuit may come in as a party though the outsider has not
been named as a party by the existing litigants."
A special procedural rule governs the filing of complaints in
intervention.

F.R.C.P. 24 requires a motion "accompanied by a

pleading that sets out the claim or defense for which intervention
is sought."

It would circumvent this Rule to the possible

prejudice of existing parties if an intervenor -- allowed to
intervene on the basis of a pleading attached to a motion -- could
then

amend

without

leave

of

court

to

assert

new

claims

or

defenses.
For this reason, the Court finds that Old Dominion's Motion
To Strike should be granted.
14.

Subsequent to the briefing on the Motion To Strike,

Grams filed his Motion For Leave To File An Amended Complaint.
Once again, he failed to attach a copy of the proposed amended
complaint to his motion, but the context makes it clear that what
he proposes to file is Grams' Amended Complaint.
Old Dominion objects, for the same reasons asserted in its
Motion To Strike.

Most pertinent of these objections is that

Grams' Amended Complaint interjects a new issue into the case,
i.e., whether Old Dominion violated the Family and Medical Leave
Act ("FMLA") by refusing to allow Grams time off to obtain
treatment for alcoholism.
Old Dominion takes the position that Grams cannot assert

-10-

additional claims upon intervening into a case in which the EEOC
is seeking to vindicate public rights, citing Kyles v. First
Tennessee Bank, N.A., 634 F.2d 349, 350 (6th Cir. 1980).
Grams counters that if he is not allowed to bring all his
claims against Old Dominion in this action, "then he would be
barred from bringing them at all" under the rules of res judicata.
15.
issue.

The Court does not agree with either party on this
EEOC

is correct

that ordinarily,

"an

intervenor is

admitted to the proceeding as it stands, and in respect of the
pending issues, but is not permitted to enlarge those issues or
compel an alteration of the nature of the proceeding."

Vinson v.

Washington Gas Light Co.,

This does

321 U.S. 489, 498 (1944).

not mean, however, that considerations of judicial efficiency are
off the table.
Grams, on the other hand, is wrong in contending that the bar
of res judicata would arise if he cannot assert his FMLA claim
here.

That doctrine bars a second suit between the same parties

based on the same cause of action.

Wintermute v. Kansas Bankers

Surety Co., 630 F.3d 1063, 1067 (8th Cir. 2011).
a different cause of action from an ADA claim.

An FMLA claim is
That does not

mean, however, that the doctrine of collateral estoppel will play
no part in the overall litigation.
16.

The Court's analysis takes a different approach. Grams'

Motion To Intervene was granted pursuant to F.R.C.P. 24(a)(1),
-11-

because he had a statutory right to intervene.
related to his ADA claim, not to his FMLA claim.

That right was
Whether to allow

Grams to intervene for the purpose of asserting his FMLA claim is
more properly analyzed pursuant to F.R.C.P. 24(b)(1)(B), which
authorizes intervention at the discretion of the Court where the
moving party "has a claim or defense that shares with the main
action a common question of law or fact."
As noted above, in order to make out a prima facie case under
the ADA, the EEOC must show:
*

that Grams has a disability within the meaning of the

*

that

ADA;

function

of

Grams
his

was

job,

qualified
either

to

with

perform
or

the

without

essential
reasonable

accommodation; and
*

that Grams suffered adverse employment actions because

of his disability.
Cooper, supra, 246 F.3d at 1087.
To make out a prima facie case for denial of FMLA rights,
Grams must show:
*

that he has a serious health condition that makes him

unable to perform the functions of his job;
*

that he gave Old Dominion adequate and timely notice of

his need for FMLA leave; and
*

that Old Dominion interfered with, restrained, or denied

-12-

the exercise of his rights under the FMLA.
Chappell v. Bilco Co., --- F.3d ---, 2012 WL 1123847 (8th Cir.
2012).
17.

The causes of action share a common factual issue: the

impact of Grams' admitted alcoholism on his ability to perform the
functions of his job.

For ADA purposes, he must show that he was

able to perform; for FMLA purposes, he must show that he was not.
This presents a classic collateral estoppel situation.

As

explained in U.S. v. McManaman, --- F.3d ---, 2012 WL 832994 (8th
Cir. 2012),
"We apply the doctrine of collateral estoppel when (1)
the issue sought to be precluded is identical to the
issue previously decided; (2) the prior action resulted
in a final adjudication on the merits; (3) the party
sought to be estopped was either a party or in privity
with a party to the prior action; and (4) the party
sought to be estopped was given a full and fair
opportunity to be heard on the issue in the prior
action."
(citing Ripplin Shoals Land Co., LLC v. U.S. Army Corps of
Engineers, 440 F.3d 1038, 1044 (8th Cir. 2006).
Collateral estoppel issues can be avoided -- and judicial
resources conserved -- by allowing Grams to pursue both claims in
this action.

For this reason, the Court concludes that Gram's

Motion To Amend should be granted.
18.

Upon the filing of Grams' Amended Complaint, as allowed

by this Order, Old Dominion's final objection to Grams' Amended
Complaint

may

come

to

the

fore,
-13-

i.e.,

that

Grams'

Amended

Complaint contains impertinent material that should be stricken.
The Court is not persuaded that, to the extent Grams' Amended
Complaint contains irrelevant matter, it is sufficiently offensive
or obstructive that it merits a recasting of the document.

Thus,

inasmuch as that argument has been asserted as to Grams' Amended
Complaint (now stricken), and Grams' Amended Complaint (upon
refiling) will mirror it, the argument is rejected.
19.

Finally, Old Dominion's motion for leave to file a reply

brief in support of its Motion To Strike will be denied as moot.
IT IS THEREFORE ORDERED that Old Dominion's Motion To Dismiss
(document #17)is granted in part and denied in part.
The

motion

is

granted

to

the

extent

that

it

seeks

clarification of the EEOC Complaint, and denied in all other
respects.

EEOC

is

directed

to

file

an

Amended

Complaint

clarifying its "policy violation" claim within ten days of the
date of this Order.
IT IS FURTHER ORDERED that Defendant's Motion To Dismiss
Charles Grams' Complaint In Intervention (document #28) is denied.
IT IS FURTHER ORDERED that Defendant's Motion To Strike
Intervenor Charles Grams' Amended And Substituted Complaint In
Intervention (document #43) is granted, and the Amended And
Substituted Complaint Of Intervenor Charles Grams (document #30)
is stricken from the record and held for naught.
IT IS FURTHER ORDERED that Grams's Motion For Leave To File
-14-

An Amended Complaint (document #46) is granted, and he is directed
to file Grams' Amended Complaint within ten days of the date of
this Order.
IT IS FURTHER ORDERED that Defendant's Unopposed Motion For
Leave To File A Reply Brief In Support Of Its Motion To Strike
Grams' Amended Complaint In Intervention (document #48) is denied.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

-15-