Dantzler v. City and County of San Francisco

Filing 64

ORDER by Judge Edward M. Chen Granting 45 Defendant's Motion for Summary Judgment. (emcsec, COURT STAFF) (Filed on 1/8/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

EUGENE F. DANTZLER,
Plaintiff,

8

11

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

v.

9
10

Case No. 16-cv-03119-EMC

CITY AND COUNTY OF SAN
FRANCISCO,

Docket No. 45

For the Northern District of California

United States District Court

Defendant.
12

Plaintiff Eugene F. Dantzler sues Defendant the City & County of San Francisco (“SF”),

13
14

his former employer, for disability discrimination under federal law. Currently pending before the

15

Court is SF‟s motion for summary judgment. Having considered the parties‟ briefs and

16

accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS

17

SF‟s motion.
I.

18

FACTUAL & PROCEDURAL BACKGROUND

Evidence submitted by the parties in conjunction with the summary judgment papers

19
20

establishes the following facts as either uncontroverted or viewed in Mr. Dantzler‟s favor.

21

A.

22
23
24

Position as 9163 Transit Operator
Mr. Dantzler started to work for SF‟s Municipal Transportation Agency (“SFMTA” or

“MTA”) in July 2000. See Baluyot Decl. ¶ 3. Ultimately, he was terminated in February 2015.
During his employment with SF, Mr. Dantzler worked as a 9163 Transit Operator. See

25

Baluyot Decl., Ex. A (notice of probationary status, dated July 2000). “The 9163 Transit Operator

26

[position] is considered a „Service Critical‟ position.” Baluyot Decl. ¶ 4. A 2012 description of

27

the position notes that a 9163 Transit Operator

28

operates a variety of transit vehicles such as diesel and electric
motor coaches, cable cars, streetcars and light rail vehicles.
Essential functions include: conducting pre-operational inspection of
the transit vehicle; safely navigating the vehicle through traffic
along assigned routes under various environment conditions in
accordance with traffic laws and departmental regulations; . . .
collecting fares from passengers and issuing transfers; . . .
communicating instructions to passengers . . . ; conducting postoperational inspection of the outside vehicle; contacting central
control regarding various emergencies; [etc.].

1
2
3
4
5
6

Nature of work . . . may require standing and/or sitting for prolonged
periods of time; performing different physical activities such as
pulling poles, resetting retrievers to return disabled transit vehicles
to service; and assisting in the movement of disabled transit vehicles
when possible. . . .

7
8
9

Baluyot Decl. ¶ 4 & Ex. B (job description).
Minimum qualifications for the 9163 Transit Operator job include possession of or ability

10

to obtain a class B driver‟s license “with a Passenger (P) Endorsement and no restrictions that

12
For the Northern District of California

United States District Court

11

prohibit operation of a [MTA] public transit vehicle.” Baluyot Decl., Ex. B. To obtain a class B

13

driver‟s license, a person

14

must undergo a medical examination by a qualified medical
examiner. The purpose of the examination is to determine whether
the driver is physically qualified to operate a commercial motor
vehicle (“CMVs”) in a manner consistent with the Federal Motor
Carrier Safety Administration (“FMCSA”) regulations (“FMCSRs”)
(49 CFR 391.41-49) and, consistent with the FMCSRs and SFMTA
policy, confirm that an operator‟s medical state will not preclude
him or her from safely transporting members of [the] public on
SFMTA fleet vehicles without jeopardizing safety to him or herself,
his or her co-workers, or the public at large.

15
16
17
18
19
20

Amodeo Decl. ¶ 4.1

21

MTA has a Handbook and a Rulebook both of which note (consistent with the above) that

22

a class B driver‟s license with a Passenger (P) Endorsement is required for transit operators. The

23
1

24
25
26
27
28

Although Mr. Dantzler has objected to the Amodeo declaration, it is on grounds not implicated
here (i.e., not qualified to provide a medical opinion). Moreover, Mr. Dantzler does not
substantively disagree with the above. See also RJN, Ex. B (DMV website on “Commercial
Driver License Medical Eligibility”) (stating that “[d]rivers of Class A, B, and C commercial
vehicles must meet medical requirements established by the federal government and the
department”); RJN, Ex. C (Cal. Veh. Code § 12804.9(a)(2)) (providing that, “[b]efore a class A or
class B driver‟s license, or class C driver‟s license with a commercial endorsement, may be issued
or renewed, the applicant shall have in his or her driver record a valid report of a medical
examination of the applicant given not more than two years prior to the date of the application by a
health care professional”).
2

1

Handbook and Rulebook also note that a medical card is required. See Baluyot Decl., Ex. D

2

(Handbook ¶ 4.2.1) (“A current California Class B-P License, Medical and VTT [verification of

3

transit training] card is required to operate a vehicle . . . .”); Baluyot Decl., Ex. E (Rulebook ¶

4

2.11.2) (“Employees that operate rail vehicles shall maintain a valid California Class B

5

Commercial Driver‟s License with a „Passenger (P)‟ and a valid medical card.”). Medical card

6

refers to a Medical Examination Certification. See Baluyot Decl. ¶ 5. MTA “exclusively

7

designates and relies on the Occupational Health Services Division („OHS‟) at [Zuckerberg San

8

Francisco General Hospital and Trauma Center] to conduct the medical examinations of its

9

employees” and issue medical cards. Baluyot Decl. ¶ 6.

10

B.

It appears that, in or about 2009, Mr. Dantzler was still working for MTA as a 9163 Transit

11
12
For the Northern District of California

United States District Court

Mr. Dantzler‟s Medical Condition

Operator when he was diagnosed with hypertrophic cardiomyopathy (“HCM”). See Dantzler

13

Decl., Ex. A (Docket No. 53, at 11) (medical examination report, containing Mr. Dantzler‟s

14

handwritten note “Heart disease Hypertrophic Cardiomyopathy Obstructive 4/28/09”). “HCM is a

15

form of heart disease in which the heart muscle (myocardium) becomes abnormally thick

16

(hypertrophied). The thickened heart muscle can make it harder for the heart to pump blood. In

17

some cases, the thickened heart muscle can cause shortness of breath, chest pain or problems with

18

the heart‟s electrical system, resulting in life-threatening abnormal heart rhythms (arrhythmias).”

19

Amodeo Decl. ¶ 8.2

20
2

21

22
23
24
25
26
27
28

Mr. Dantzler has objected to the Amodeo Declaration on the grounds that the declarant is not
qualified to offer a medical opinion. However, there is no real dispute about what HCM is. For
example, the American Heart Association website describes HCM as follows.
Hypertrophic cardiomyopathy occurs if heart muscle cells enlarge
and cause the walls of the ventricles (usually the left ventricle) to
thicken. The ventricle size often remains normal, but the thickening
may block blood flow out of the ventricle. If this happens, the
condition is called obstructive hypertrophic cardiomyopathy.
Sometimes the septum, the wall that divides the left and right sides
of the heart, thickens and bulges into the left ventricle. This can
block blood flow out of the left ventricle. Then the ventricle must
work hard to pump blood. Symptoms can include chest pain,
dizziness, shortness of breath, or fainting.
3

1

MTA knew about the HCM diagnosis in or about late 2011. In spite of this knowledge,

2

Mr. Dantzler was allowed to work as a 9163 Transit Operator based on medical assessments made

3

for MTA by (1) Michael Amodeo, a nurse practitioner and physician‟s assistant employed by SF‟s

4

Department of Public Health (“NP Amodeo”), and (2) Raymond Meister, a supervising doctor.

5

According to NP Amodeo and Dr. Meister, Mr. Dantzler met the standard to obtain a medical

6

certification for one year, from August 2011 to August 2012. However, they also found that Mr.

7

Dantzler was required to submit to a periodic evaluation due to, inter alia, the HCM, and a follow-

8

up examination was scheduled for December 2011. See Dantzler Decl., Ex. A (Docket No. 53, at

9

12) (medical examination report).

10

In or about October 2011 – i.e., before the December 2011 follow-up examination – NP
Amodeo gave Mr. Dantzler a form for his treating cardiologist to fill out. See also Supp. Dantzler

12
For the Northern District of California

United States District Court

11

Decl. ¶ 3 (stating that NP Amodeo “demanded paperwork from my doctors regarding my heart

13

condition”). The form was titled “Outpatient Consultation Request.” In the form, NP Amodeo

14

explained that a consultation was being requested because

15
16
17
18
19
20
21

22
23
24
25
26
27
28

....
In both obstructive and non-obstructive HCM, the thickened muscle
makes the inside of the left ventricle smaller, so it holds less blood.
The walls of the ventricle may stiffen, and as a result, the ventricle is
less able to relax and fill with blood.
This can raise blood pressure in the ventricles and the blood vessels
of the lungs. Changes also occur to the cells in the damaged heart
muscle, which may disrupt the heart's electrical signals and lead to
arrhythmias.
Some people who have HCM have no signs or symptoms, and the
disease doesn't affect their lives. Others have severe symptoms and
complications. They may have shortness of breath, serious
arrhythmias or an inability to exercise.
It is rare, but some people with hypertrophic cardiomyopathy can
have sudden cardiac arrest during very vigorous physical activity. The physical activity can trigger dangerous arrhythmias.
http://www.heart.org/HEARTORG/Conditions/More/Cardiomyopathy/HypertrophicCardiomyopathy_UCM_444317_Article.jsp#.WgyJUWfruRs (last visited December 22, 2017).
Accordingly, any objection in this regard is overruled as moot.
4

1
2
3
4

[y]our patient is being evaluated for a DMV medical exam
certification to drive commercial motor vehicles (CMV). This is a
safety-sensitive job that involves operating public transit vehicles.
He has a history of hypertrophic cardiomyopathy (HCM) with workup done at Kaiser over [the] last number of years. His CMV
medical certification was suspended as the patient newly revealed
the following medical history, per Kaiser documentation, upon
presentation here for CMV medical examination:



5
6





7
8



9
10

12
For the Northern District of California

United States District Court

11

We must assess if a significantly increased risk of sudden
incapacitation exists and your assistance is needed. Assessment is
done per Federal Motor Carrier Safety Administration (FMSCA)
medical expert panel (MEP) opinions and Medical Review Board
(MRB) recommendations:
In 2002, it was recommended that drivers with
echocardiographically diagnosed HCM not be
qualified. Those with borderline hypertrophic
cardiomyopathy (HCM), hypertensive hypertrophic
cardiomyopathy, or other similar diagnosis could not
be qualified but should be reevaluated after 1 year.
With the current recognition that not all patients with
[such] are at high risk of sudden incapacitation, the
Medical Expert Panel (MEP) recommended that
since the individuals who meet the following criteria
are at lower risk they could be medically certified.

13
14
15
16
17
18




19




20
21





22
23
24
25
26
27
28

HCM for a number of years.
1.5 years of progressive DOE and exertional chest
tightness and fatigue
Syncopal episode 3/2011
Holter monitoring.
Family hx: Father: died at 51 of CHF from viral
cardiomyopathy[;] Brother: 40‟s, “small” MIx3
Other extensive work-up done at Kaiser

No history of cardiac arrest
No spontaneous sustained ventricular
tachycardia (VT)
No non-sustained VT
Normal exercise blood pressure (e.g., no
decrease at maximal exercise)
No family history of premature sudden death
No syncope
Left ventricular septum thickness < 30mm



Please assess fully, noting FMSCA guidance above, and provide
documentation of current medical status and plan.



Please be sure to check the appropriate box below.

Dantzler Decl., Ex. A (Docket No. 53, at 17) (emphasis in original).
Mr. Dantzler‟s treating cardiologist, Dr. O‟Kelly, completed the form in December 2011,
checking off the box that Mr. Dantzler “MAY perform safety sensitive duties as commercial
5

1

motor vehicle driver, operating public transit vehicles.” Dantzler Decl., Ex. A (Docket No. 53, at

2

17) (emphasis in original). Dr. O‟Kelly also provided some medical records in support. See, e.g.,

3

Dantzler Decl., Ex. A (Docket No. 53, at 24-25) (providing an assessment and plan for Mr.

4

Dantzler).

doctors, and not just the request identified above: “Every time I brought information in to Mr.

7

Amadeo [sic] per his requests, he would demand additional information which had not been

8

previously requested and which was not needed.” Supp. Dantzler Decl. ¶ 3. According to Mr.

9

Dantzler, even his doctors believed that the “additional information requests were unnecessary.

10

My primary care physician, my cardiologist, and my cardiovascular surgeon all stated to me that

11

these requests were stressing them out, or asked „what the hell he wanted,‟ or expressed to me that

12
For the Northern District of California

Mr. Dantzler asserts that NP Amodeo made multiple requests for information from his

6

United States District Court

5

these requests were gratuitous.” Supp. Dantzler Decl. ¶ 3.3 Mr. Dantzler maintains that, because

13

of NP Amodeo‟s repeated requests for information, it took him “five (5) extra months to get back

14

to work.” Supp. Dantzler Decl. ¶ 3.
It appears that Mr. Dantzler‟s medical situation worsened or at least did not improve. In

15
16

his deposition, Mr. Dantzler testified that he was having blood circulation issues, shortness of

17

breath, dizzy spells, and fainting spells and, upon getting a second opinion, he was a referred to a

18

cardiac surgeon who immediately scheduled him for surgery. See Dantzler Depo. at 148-49.

19

Accordingly, in or about July 2012, he had surgery (a septal myomectomy) to address his HCM.

20

See Dantzler Depo. at 149-50. Dr. Gordon was Mr. Dantzler‟s cardiac surgeon.
Mr. Dantzler was authorized to take a leave of absence from his job with the MTA because

21

22

of his HCM. The authorized leave was from April 6, 2012, to April 5, 2013. See Baluyot Decl.,

23

Ex. F (notice of leave of absence expiration). As indicated above, Mr. Dantzler‟s surgery appears

24

to have taken place within this timeframe, i.e., in or about July 2012.

25
26
27
28

3

Mr. Dantzler‟s reference to his surgeon is problematic in that he does not appear to have had any
heart-related surgery until July 2012 (as discussed below). The Court, however, does not see this
as being anything but an innocent error on the part of Mr. Dantzler.
6

1
2

C.

Return-to-Work Medical Evaluation
On March 25, 2013, MTA‟s Return to Work Unit (“RTW”) sent Mr. Dantzler a notice that

3

his leave was due to expire. RTW is a part of MTA‟s Human Resources Department and ensures

4

that “employees for work for SFMTA in „Safety-Critical‟ positions are medically and otherwise

5

qualified to return to work following a leave of absence of five or more days.” Baluyot Decl. ¶ 2.

6

In the notice, RTW specified that, “[i]n order to return to work at the expiration of your approved

7

leave of absence, you must first report . . . for return to work processing.” Baluyot Decl., Ex. F.

8

However,

9

[b]efore an operator can even start the RTW process, he or she must
submit a notice from a health care provider indicating that he or she
is cleared to return to work full duty without restrictions. The
verification serves to confirm that the returning employee does not
presently have a disability that may require reasonable
accommodation. It is not intended to be in lieu of the medical
certification that an operator must submit with his or her application
to renew a California “Class A” or “Class B” commercial driver‟s
license (“CDL”) and as required by SFMTA to otherwise resume
driving duties.

10

12
For the Northern District of California

United States District Court

11

13
14
15

Baluyot Decl. ¶ 8; see also Amodeo Decl. ¶ 7 (testifying that, “before a SFMTA operator can

16

undergo a medical examination by OHS, he must first obtain approval from his health care

17

provider to return to work „full duty‟ and „without restrictions‟”; adding that this “in no way

18

replaces the requirement that transit operators must also obtain medical certification in accordance

19

with state and federal law from a medical examiner before he or she can resume commercial

20

driving”).

21

After Mr. Dantzler‟s leave expired on April 5, 2013, he reported to RTW. “RTW directed

22

him to report to OHS for an appointment to obtain his medical certification.” Baluyot Decl. ¶ 10

23

& Ex. G (letter from License & Medical Unit of MTA, dated April 5, 2013, stating that “[o]ur

24

records indicate that your medical card will expire soon” and that “[y]ou have been scheduled for

25

an appointment at S.F. General Hospital” on April 8, 2013).

26

1.

27

On April 8, 2013, Mr. Dantzler met with NP Amodeo, see Amodeo Decl. ¶ 7, who had

28

First Meeting with NP Amodeo

previously approved his medical certification in late 2011. At the appointment, Mr. Dantzler
7

1

provided NP Amodeo with several documents. In one of the documents, Mr. Dantzler indicated,

2

inter alia, that he had had “open heart surgery for a septal myomectomy” in July 2012 and

3

identified Dr. Gordon as a treating physician. Amodeo Decl, Ex. B3 (medical examination report,

4

filled out by Mr. Dantzler). In another document, Dr. Gordon‟s office indicated that “[Mr.]

5

Dantzler was given telephone or secured messaging advice” which was that “[Mr.] Dantzler can

6

return to full duties with no restrictions on 4/5/2013.” Amodeo Decl., Ex. B3 (Kaiser Visit

7

Verification Form) (emphasis added).

8

NP Amodeo proceeded to medically examine Mr. Dantzler.4 During the examination, NP

9

Amodeo informed Mr. Dantzler that “none of the FMCSA medical reference guides at [that] time

drive CMVs” – presumably because, at that time, “septal myomectomy was still a new procedure

12
For the Northern District of California

included any information regarding the specific effect of septal myomectomy on one‟s ability to

11

United States District Court

10

for treating [HCM] and not one that individuals in the field of occupational health had much

13

experience assessing.” Amodeo Decl. ¶ 8. NP Amodeo thus told Mr. Dantzler that he “was going

14

to need more information to assess whether [Mr. Dantzler], in his post-operative state, could safely

15

operate CMVs and be granted medical certification for licensing purposes.” Amodeo Decl. ¶ 8.

16

NP Amodeo also told Mr. Dantzler that he “would separately provide [Mr. Dantzler] with

17

consultation forms for him to give to his health care providers.” Amodeo Decl. ¶ 8. According to

18

NP Amodeo, he “anticipated needing additional information because – especially where a heart

19

condition is involved – [he] want[s] the operator‟s health care providers to understand that they are

20

giving their endorsement for an operator to return to a safety-sensitive opposition (as opposed to

21

just a desk job where performance of the operator‟s job duties lacks the potential of putting others‟

22

lives at risk).” Amodeo Decl. ¶ 8.
After seeing Mr. Dantzler on April 8, 2013, NP Amodeo researched HCM and septal

23
24

myomectomy “to determine if there were any circumstances under which OHS could certify him

25

to operate CMVs.” Amodeo Decl. ¶ 9. One reference source from the FMCSA from 2002

26

“advised against certification for individuals diagnosed with HCM.” Amodeo Decl. ¶ 9 & Ex. B5

27
4

28

As indicated above, Mr. Dantzler has objected to the medical opinions offered by NP Amodeo
on the basis that he is not qualified. That objection is addressed infra.
8

1

(2002 Cardiovascular Conference Report Recommendation Tables). However, a subsequent

2

reference source from the FMCSA recommended that that guideline be changed:

3

With the current recognition that not all patients with HCM are at
high risk of sudden incapacitation, the MEP [expert panel]
recommended that since the individuals who meet the following
criteria are at lower risk they could be medically certified.

4
5
6
7
8
9
10






No history of cardiac arrest
No spontaneous ventricular tachycardia (VT)
Normal exercise blood pressure (e.g., no decrease at maximal
exercise)
No nonsustained VT
No family history of premature sudden death
No syncope
Left ventricular septum thickness < 30mm

Amodeo Decl., Ex. B5.
Based on the subsequent reference source, NP Amodeo determined that he “needed [Mr.

12
For the Northern District of California

United States District Court

11





Dantzler‟s] health care providers to address [the above] seven criteria to determine whether

13

allowing [Mr. Dantzler] to resume driving City fleet vehicles would or would not pose a risk to the

14

health and safety of himself, his co-workers, and members of the public (both ones he would

15

transport and other drivers and pedestrians on the road).” Amodeo Decl. ¶ 10. Significantly, NP

16

Amodeo consulted with a supervising doctor, Dr. Meister, who agreed that additional information

17

should be provided. See Amodeo Decl. ¶ 11 & Ex. B1 (medical notes, dated April 8, 2013). In a

18

declaration, Dr. Meister states that he does not recall consulting with NP Amodeo regarding Mr.

19

Dantzler, but, based on his review of the file, Dr. Meister “agree[s] with Mr. Amodeo‟s conclusion

20

that it was appropriate to request information regarding the seven-above mentioned criteria from

21

[Mr. Dantzler‟s] cardiologist and cardiac surgeon prior to completion of his medical evaluation

22

and rendering a decision regarding his medical qualification to drive CMVs.” Meister Decl. ¶ 7.

23

Accordingly, on April 9, 2013, NP Amodeo sent a letter to Mr. Dantzler in which he

24

enclosed “a consultation note [Outpatient Consultation Request] that needs to be fully completed

25

by your cardiac surgeon.” Amodeo Decl., Ex. B6 (letter). NP Amodeo expressly noted in the

26

letter that “[t]here is further information that may need to be obtained to properly assess for

27

medical clearance for your job duties,” but “[i]t is important to get this consultation request done

28

first.” Amodeo Decl., Ex. B6. The Outpatient Consultation Request stated, inter alia:
9

1

Your patient is being evaluated for a DMV medical exam
certification to drive commercial motor vehicles (public transit
vehicles/buses). He has a history of hypertrophic cardiomyopathy
with septal myomectomy 7/31/12.

2
3



4



5
6



7
8
9

According to NP Amodeo, even though he only gave the above Outpatient Consultation
Request to Mr. Dantzler, he prepared additional requests:

12
For the Northern District of California

United States District Court

Please provide a written statement if you feel Mr.
Dantzler is able to perform his full job duties without
compromise to the safety of public (passengers he
transports, . . . ), his fellow workers, and himself.

Amodeo Decl., Ex. B6 (Outpatient Consultation Request).

10
11

This is a safety-sensitive job that needs assessment to
determine if significant risk for sudden incapacitation exists.
Federal Motor Carrier Safety Administration standards must
be met to be medically cleared to drive a bus and transport
passengers.

I determined, assuming Dr. Gordon confirmed his general belief that
[Mr.] Dantzler was fit to operate CMVs, we would need additional
information in the following three forms: (a) a more detailed OCR
from Dr. Gordon addressing the seven (7) [above] criteria,
accompanied by test results from a recent echocardiogram (i.e., a
diagnostic cardiac ultrasound); (2) a more detailed OCR from
[Mr.] Dantzler’s cardiologist (also addressing the seven (7) . . .
criteria) and test results for an echocardiogram as well; (3)
measurement of [Mr.] Dantzler‟s recent blood sugar levels from this
primary care provider (i.e., a draw of HgbA1c and measurement of
glycosuria in [Mr.] Dantzler‟s urine).[5] . . . I determined that,
before we sought all of this information, we first needed to confirm
that [Mr. Dantzler‟s] cardiac surgeon generally believed he was fit
to drive commercial vehicles. If he provided such confirmation, I
intended to submit these more detailed forms to [Mr.] Dantzler for
his providers‟ completion. I also noted that we needed to check [on]
[Mr.] Dantzler‟s blood pressure to confirm it was no higher than 140
over 90 beats per minutes (“BPM”).

13
14
15
16
17
18
19
20
21

22

Amodeo Decl. ¶ 13 (emphasis added); see also Amodeo Decl., Exs. B7-9 (additional Outpatient

23

Consultation Requests, dated April 8 or 9, 2013); Amodeo Decl., Ex. B1 (medical notes, dated

24

April 9, 2013) (confirming the above approach).

25

2.

Second Meeting with NP Amodeo

26

On April 24, 2013, Mr. Dantzler had a follow-up appointment with NP Amodeo. Mr.

27
5

28

See also Dantzler Decl., Ex. A (Docket No. 53, at 35) (Outpatient Consultation Request asking
Mr. Dantzler‟s primary medical doctor to do a urine test).
10

1

Dantzler brought with him the Outpatient Consultation Request form that NP Amodeo had mailed

2

him. The form was signed by Dr. Gordon and stated: “[Mr.] Dantzler may return to work

3

without restriction.” Amodeo Decl., Ex. B11 (completed Outpatient Consultation Request Form,

4

dated April 18, 2013) (emphasis added). NP Amodeo then told Mr. Dantzler that he now needed

5

Mr. Dantzler to have his doctors – including Dr. Gordon (the cardiac surgeon) and Dr. Kelly (the

6

cardiologist) – fill out additional Outpatient Consultation Requests, with each Request asking the

7

doctor to address the seven criteria identified by FMCSA regarding HCM. See Amodeo Decl. ¶

8

17; see also Dantzler Decl., Ex. A (Docket No. 54, at 19-20).

9

On September 11, 2013, OHS received an Outpatient Consultation Request form that was

the wrong form to fill out – i.e., the form given to Dr. Kelly was the same “general” form that NP

12
For the Northern District of California

completed by Dr. Kelly (the cardiologist). However, Mr. Dantzler apparently had given Dr. Kelly

11

United States District Court

10

Amodeo had first given to Mr. Dantzler for Dr. Gordon to fill out (and thus the form did not ask

13

Dr. Kelly to address the seven FMCSA criteria). On the old form, Dr. Kelly stated: “Mr.

14

Dantzler had normal exercise capacity on exercise treadmill test 7/24/13 . . . with no

15

arrhythmia and normal BP response. His Holter (8/22/13) showed no arrhythmia. Echo

16

showed no LV or RV systolic function and no LV outflow tract obstruction. He is fit to drive

17

commercial vehicles.” Amodeo Decl., Ex. B13 (completed Outpatient Consultation Request

18

Form, dated September 7, 2013) (emphasis added).

19

3.

Third Meeting with NP Amodeo

20

On September 18, 2013, Mr. Dantzler met with NP Amodeo a third time. Mr. Dantzler did

21

not provide any Requests addressing the seven FMCSA criteria. Mr. Dantzler did provide a

22

medical record from Dr. Kelly (the cardiologist) providing basically the same content as above,

23

see Amodeo Decl., Ex. B15 (medical records from Dr. Kelly), and a medical examination report

24

(for commercial driver fitness determination) filled out by another doctor, more specifically, Dr.

25

Jourgensen. In the report, Dr. Jourgensen indicated that Mr. Dantzler met the standards for

26

medical certification but required periodic evaluation. See Amodeo Decl., Ex. B16 (medical

27

examination report). Mr. Dantzler informed NP Amodeo that he was working not just for MTA

28

but also the U.S. Postal Service, and Dr. Jourgensen had cleared him for return to work at the U.S.
11

1

Postal Service. See Amodeo Decl. ¶ 22.
In response, NP Amodeo told Mr. Dantzler that he was

2
3

required to make an independent assessment regarding his medical
qualification specifically to act as a transit operator for SFMTA.
While any commercial license in California requires medical
certification, there are unique and heighten[ed] safety considerations
that a medical examiner must consider when issuing medical
clearance for an operating transporting members of the public, as
opposed to a commercial driver delivering goods (such as mail).

4
5
6
7

Amodeo Decl. ¶ 22.
NP Amodeo also informed Mr. Dantzler that “all [he] needed to do in order to complete

8

for this cardiologist and cardiac surgeon,” i.e., the forms asking each doctor to address the seven

11

FMCSA criteria. Amodeo Decl. ¶ 23. NP Amodeo gave Mr. Dantzler new copies of the

12
For the Northern District of California

SFMTA‟s process was submit completed versions of the OCR forms I gave to him on April 24th

10

United States District Court

9

Outpatient Consultation Requests for Dr. Kelly and Dr. Gordon. See also Dantzler Decl., Ex. A

13

(Docket No. 54, at 2) (Outpatient Consultation Request for cardiologist, originally dated April 8,

14

2013, and reissued on September 18, 2013).
At the end of the appointment, NP Amodeo prepared a status report on Mr. Dantzler‟s

15
16

medical certification. The report indicated that Mr. Dantzler‟s current status was “not medically

17

qualified” because certification was being “withheld.” Amodeo Decl., Ex. B19 (status report).

18

The report also indicated that a follow-up appointment needed to be scheduled and that Mr.

19

Dantzler should bring with him all requested medical documentation, including the two

20

consultation requests – “fully completely” – that were issued in April 2013. Amodeo Decl., Ex.

21

B19. NP Amodeo gave Mr. Dantzler a copy of the status report. See Amodeo Decl. ¶ 24.
According to NP Amodeo, thereafter, neither he nor anyone else at OHS heard from Mr.

22
23

Dantzler again. See Amodeo Decl. ¶ 26. “As a result, [Mr. Dantzler‟s] medical clearance

24

remained withheld, subject to [Mr.] Dantzler providing the outstanding requested information.”

25

Amodeo Decl. ¶ 26.

26

D.

AWOL Determination

27

Consistent with its practice, RTW referred Mr. Dantzler‟s file to Labor Relations because

28

Mr. Dantzler did not follow up with OHS after the third meeting with NP Amodeo. See Baluyot
12

1

Decl. ¶ 11. On January 17, 2014, Labor Relations sent a letter to Mr. Dantzler, titled “Skelly

2

Meeting” and “Proposed Recommended Disciplinary Action: Dismissal for AWOL – Absent

3

Without Leave Since April 5, 2013.” Helms Decl., Ex. C (letter). The letter set a hearing for

4

January 17, 2014 – i.e., the same day that the letter was issued.

5

Presumably recognizing the scheduling error, Labor Relations sent another letter to Mr.

6

Dantzler on January 24, 2014. This letter was also titled “Skelly Meeting” and “Proposed

7

Recommended Disciplinary Action: Dismissal for AWOL – Absent Without Leave Since April 5,

8

2013.” Dantzler Decl., Ex. B (Docket No. 52, at 20). The letter set a hearing for February 4,

9

2014. According to Mr. Dantzler, he did not receive the January 24 letter until after the February

10

At about the same time, and consistent with its practice, RTW sent Mr. Dantzler an

12
For the Northern District of California

United States District Court

11

4 hearing date. See Dantzler Depo. at 176; Dantzler Supp. Decl. ¶ 4.

“Options Letter.” See Baluyot Decl., Ex. H (letter, dated January 23, 2014). The letter stated,

13

inter alia:

14
15
16
17
18
19
20

Our records indicate that your leave expired on April 5, 2013. Our
records also indicate that you have not returned to work. You are,
therefore, off without official leave. You must consider one of the
following options regarding your continued employment with the
SFMTA:
1. Return to Work Immediately. You must secure a written release
from your health care provider stating that you can return to
work with no restrictions by February 4, 2014. . . .
2. Request for Reasonable Accommodation. . . .
3. Apply for Disability Retirement . . . .

21

22

4. Apply for Service Retirement . . . .

23

5. Resignation . . . .

24

If I do not hear from you regarding which option you are choosing
by close of business February 6, 2014, you will be considered
Absent Without Official Leave (AWOL) and appropriate discipline,
up to and including termination, may result based upon your
classification‟s MOU language and Civil Service Rules.

25
26
27
28

Baluyot Decl., Ex. H.
Many months passed and then, on August 26, 2014, Labor Relations sent another letter to
13

1

Mr. Dantzler, this one titled “Skelly Meeting” and “Proposed Recommended Disciplinary Action:

2

Dismissal for AWOL – Absent Without Leave Since April 5, 2013, 2nd Notification.” Helms

3

Decl., Ex. D (letter). A hearing was set for September 8, 2014. Apparently, both Mr. Dantzler

4

and his union representative failed to appear for the September 8 hearing. In his deposition, Mr.

5

Dantzler admitted that he got notice of the September 8 hearing in advance of the hearing. See

6

Dantzler Depo. at 180. Mr. Dantzler added, however, that it was his understanding that his union

7

representative would appear for that hearing. See Dantzler Depo. at 182.

8
9
10

12
For the Northern District of California

United States District Court

11

13
14
15
16
17
18
19
20
21

22
23

On September 9, 2014, Labor Relations sent Mr. Dantzler yet another letter, this one titled
“Skelly Decision.” The letter noted, inter alia, as follows:
Although on April 5, 2013 you went through the Return to Work
Process, you never reported to Woods Division for work. A letter
was sent to you informing you of a Skelly Meeting scheduled on
January 17, 2014, during which you would have the opportunity to
respond to the charges and recommend action. You did not attend
this hearing with the Superintendent, nor did you respond in writing.
A Second Skelly meeting notification was sent to you on August 26,
2014 with a second hearing date scheduled for September 8, 2014.
Again, we did not receive a response from you, nor did you appear
at the hearing.
....
Hearing Officer‟s Decision:
You have not submitted any leave of absence requests or returned to
work since the last Return to Work Processing was approved on
April 5, 2014. Additionally, you did not respond to the Skelly
Notice in writing, and you and your union representative failed to
appear at the meeting scheduled for September 8, 2014. Thus, I
have no other option than to proceed with the proposed disciplinary
action and dismiss you from your position as a 9163 Transit
Operator for Absence Without Official Leave (AWOL).
Helms Decl., Ex. E (letter).
Thereafter, Mr. Dantzler filed a grievance over the action taken against him. On January

24

14, 2015, MTA sent a letter to Mr. Dantzler informing him and his union representative that a

25

hearing was set for January 21, 2015. See Helms Decl., Ex. F (letter). (According to Mr.

26

Dantzler, he did not get the January 14 letter until after the January 21 hearing date. See Dantzler

27

Depo. at 185; Supp. Dantzler Decl. ¶ 4. This may have been because, starting in January 2015,

28

MTA sent letters to Mr. Dantzler, using a P.O. Box address that, according to Mr. Dantzler, he had
14

1

not used in years. See Supp. Dantzler Decl. ¶ 5 (“The notice did not reach me until after the

2

hearing was conducted as it was forwarded from my closed P.O. Box to my home. The exact

3

same mistake was made again with respect to a rescheduled Step 2 hearing.”).) The hearing

4

appears to have been rescheduled for February 4, 2015. See Helms Decl., Ex. F (letter).

5

Ultimately, a union representative appeared at the February 4 grievance hearing, but not Mr.

6

Dantzler himself. According to Mr. Dantzler, he did not get the new letter until after the February

7

4 hearing date – again, because of the P.O. Box issue. See Dantzler Depo. at 188; Supp. Dantzler

8

Decl. ¶ 5.

regarding the February 4 hearing. The hearing officer concluded: “I find the Grievant has violated

11

the Rules listed in the letter of January 17, 2014. The Grievant is considered AWOL. [¶] Based

12
For the Northern District of California

On February 13, 2015, MTA‟s hearing officer sent a letter to a union representative

10

United States District Court

9

on the foregoing the grievance is denied.” Helms Decl., Ex. G (letter).
Subsequently, on February 24, 2015, MTA sent Mr. Dantzler a letter dismissing him from

13
14

his job as a 9163 Transit Operator (“effective close of business February 27, 2015”). Helms Decl.,

15

Ex. H (letter).
II.

16
17

A.

DISCUSSION

Legal Standard

18

Summary judgment is proper where the pleadings, discovery, and affidavits show that

19

“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

20

matter of law.” Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the

21

lawsuit under governing law, and a dispute about such a material fact is genuine “if the evidence is

22

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

23

Lobby, Inc., 477 U.S. 242, 248 (1986).

24
25
26
27
28

In a typical summary judgment motion, a defendant moves for
judgment against plaintiff on the merits of his claim [for which the
plaintiff bears the burden of proof]. In such a situation, the moving
party [i.e., the defendant] bears the initial burden of identifying
those portions of the record which demonstrate the absence of a
genuine dispute of material fact. The burden then shifts to the
nonmoving party [i.e., the plaintiff] to “go beyond the pleadings,
and by [his] own affidavits, or by the „depositions, answers to
15

interrogatories, or admissions on file,‟ designate „specific facts
showing that there is a genuine issue for trial.‟”

1
2

Li v. Contra Costa Cty., No. 16-cv-02861-EMC, 2017 U.S. Dist. LEXIS 176168, at *14 (N.D. Cal.

3

Oct. 24, 2017) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). “The mere existence

4

of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be

5

evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

6

B.

Disability Discrimination
The Americans with Disabilities Act (“ADA”) prohibits an employer from discriminating

7
8

against an individual based on his or her disability. See 42 U.S.C. § 12112(a) (“No covered entity

9

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

11

compensation, job training, and other terms, conditions, and privileges of employment.”).
To prevail on his employment discrimination claim, Mr. Dantzler must establish the

12
For the Northern District of California

United States District Court

10

13

following: “(1) he is „disabled‟ within the meaning of the Act; (2) he is a „qualified individual‟

14

within the meaning of the Act; and (3) he was terminated because of his disability.”6 Kaplan v.

15

City of N. Las Vegas, 323 F.3d 1226, 1229 (9th Cir. 2003).
Regarding “disability,” the ADA provides as follows:
(1)
. . . . The term “disability” means, with respect to an
individual –

16
17
18

(A)

a physical or mental impairment that substantially
limits one or more major life activities of such
individual;

20

(B)

a record of such an impairment; or

21

(C)

being regarded as having such an impairment (as
described in paragraph (3)).

19

22

....

23

(3)

24

. . . . For purposes of paragraph (1)(C):

25
6

26
27
28

Based on the opposition brief, it appears that Mr. Dantzler is taking issue with his termination
only. See Opp‟n at 3 (arguing that “[t]he alleged discrimination occurred on or about February 27,
2015,” i.e., the date he was terminated). Therefore, the Court need not address any other adverse
employment action identified by SF such as the “refusal to grant medical certification . . . based on
the information that [Mr. Dantzler] did provide,” Mot. at 20, except to the extent it relates to his
termination.
16

(A)

1
2
3
4
5

42 U.S.C. § 12102.
As for “qualified individual,” the ADA defines the term as

6
7

an individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires. For the
purposes of this title, consideration shall be given to the employer‟s
judgment as to what functions of a job are essential, and if an
employer has prepared a written description before advertising or
interviewing applicants for the job, this description shall be
considered evidence of the essential functions of the job.

8
9
10
11
12
For the Northern District of California

United States District Court

An individual meets the requirement of “being
regarded as having such an impairment” if the
individual establishes that he or she has been
subjected to an action prohibited under this chapter
because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is
perceived to limit a major life activity.

Id. § 12111(8).

13

C.

14
15
16

Parties‟ Arguments
In its motion for summary judgment, SF argues that it is entitled to summary judgment for

the following grounds:
(1) there is insufficient evidence that the relevant decisionmakers perceived Mr. Dantzler

17

as having an impairment, see Mot. at 16 (arguing that Mr. Dantzler improperly

18

conflates disability with medical certification);

19

(2) there is insufficient evidence that Mr. Dantzler was qualified to perform the job as a

20

9163 Transit Operator, see Mot. at 17-19 (arguing that the medical examination was

21

job related and consistent with business necessity; that Mr. Dantzler‟s actions

22

prevented MTA and OHS from determining whether he could perform the essential

23

functions of his job; and that MTA/OHS was not obligated to accept the opinion of Dr.

24

Jourgensen which was rendered for a different job with the U.S. Postal Service); and

25

(3) there is insufficient evidence that Mr. Dantzler was terminated because of a perceived

26

impairment (i.e., the evidence shows that MTA terminated him for legitimate business

27

reasons, specifically, abandonment of job). See Mot. at 20-21.

28

In his opposition, Mr. Dantzler does not directly address the arguments made by SF but
17

1
2
3
4

rather responds as follows:
(1) NP Amodeo was not qualified to give medical opinions, see Opp‟n at 4 (arguing that
only a medical opinion from a doctor should be given consideration);
(2) a determination as to the sufficiency of the medical information he provided to

5

SF/MTA should have been made by a doctor with a specialty in cardiology, see Opp‟n

6

at 5; and

7
8

(3) the determination that he was AWOL was improper because, multiple times, he did not
receive proper notice of hearings on the matter. See Opp‟n at 6.

intended to discriminate against Mr. Dantzler on the basis of a disability or perceived disability.

11

Mr. Dantzler argues that the AWOL determination and his ensuing termination were the result of

12
For the Northern District of California

As discussed at the hearing, the critical question is whether the relevant decision makers

10

United States District Court

9

such improper intent, but there is no evidence of such. The only nexus between NP Amodeo‟s

13

actions and the decision makers who made the AWOL determination is that the AWOL

14

determination occurred after Mr. Dantzler failed to provide medical documentation and NP

15

Amodeo‟s request for additional information was allegedly unwarranted because he was

16

purportedly not qualified to give a medical opinion. This is the fulcrum of Mr. Dantzler‟s

17

argument. It is meritless for several reasons.

18

First, regardless of the merits of NP Amodeo‟s request for additional information, Mr.

19

Dantzler failed to respond to that request. Notably, he did not ask for additional time to comply

20

with the request (even though he indicates his doctors substantively supported his position that he

21

could return to work); rather, he imply went AWOL. It is his nonresponse that led to his

22

termination.

23

Second, even if the validity of NP Amodeo‟s request would be deemed at issue because it

24

was part of the chain of causation which eventually led to his termination, the question is whether

25

NP Amodeo harbored a discriminatory intent, i.e., an intent to discriminate on the basis of

26

disability, in asking for additional medical information. Mr. Dantzler has offered no evidence of

27

such an intent on the part of the NP. Indeed, even if NP Amodeo was not qualified to give

28

medical opinions, it cannot be reasonably inferred that he took action against Mr. Dantzler because
18

1

of Mr. Dantzler‟s disability. Nothing suggests NP Amodeo was not earnestly trying to comply

2

with available medical standards. And to the extent Mr. Dantzler claims NP Amodeo was

3

motivated by some kind of ill-will, Mr. Dantzler‟s evidence suggests, if anything, that NP

4

Amodeo simply did not like drivers generally. See Supp. Dantzler Decl. ¶ 3 (“It was also clear to

5

me throughout my career with the City and County that Nurse-Practitioner Amadeo [sic] was

6

prejudiced against the drivers for MUNI, as well as against myself personally. . . . [W]hile I cannot

7

recall the specific names of the other MUNI drivers who have expressed their grievances against

8

Mr. Amadeo [sic] to me, it was well known in my workplace that Mr. Amadeo [sic] was abusive

9

of his power to control our return to work.”).

10

In any event, Mr. Dantzler‟s contention that NP Amodeo was not qualified to express any
medical opinion, even if relevant, is meritless. As SF represented at the hearing, California law

12
For the Northern District of California

United States District Court

11

permits NPs to make medical determinations. See Cal. Veh. Code § 12804.9(a)(2) (discussing

13

requirement of examination by health care professional and defining “health care professional” as

14

“a person who is licensed, certified, or registered in accordance with applicable state laws and

15

regulations to practice medicine and perform physical examinations in the United States” – e.g.,

16

“doctors of medicine, . . . physician assistants, and registered advanced practice nurses”). At the

17

hearing, Mr. Dantzler admitted as much. The Court also notes that, in the federal Social Security

18

context, a nurse‟s opinion may be considered as medical evidence, even though a nurse is formally

19

not considered an “acceptable medical source” for purposes of the regulations. See Britton v.

20

Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (stating that “a nurse practitioner is not an acceptable

21

medical source[;] [r]ather, nurse practitioners are defined as „other sources,‟ the testimony of

22

whom the administrative law judge may discount if he „gives reasons germane to each witness for

23

doing so‟”).

24

Furthermore, NP Amodeo did not reach a substantive medical opinion per se but simply

25

concluded that he needed more information to reach a decision. To the extent that Mr. Dantzler

26

argues that even this constituted a medical opinion that could only be made by a doctor, the record

27

reflects that NP Amodeo did consult with a supervising doctor, Dr. Meister, who agreed that

28

additional information should be provided. See Amodeo Decl. ¶ 11 & Ex. B1 (medical notes,
19

1

dated April 8, 2013). Admittedly, Dr. Meister testified that he does not specifically recall

2

consulting with NP Amodeo about Mr. Dantzler‟s case. Nevertheless, Dr. Meister still goes on to

3

testify that, upon review of the files, “I agree with Mr. Amodeo‟s conclusion that it was

4

appropriate to request information regarding the seven-above mentioned criteria from Plaintiff‟s

5

cardiologist and cardiac surgeon prior to completion of his medical evaluation and rendering a

6

decision regarding his medical qualification to drive CMVs.” Meister Decl. ¶ 7. While Mr.

7

Dantzler claims that his own doctors believed that more information was not needed, and that they

8

told him such, he failed to submit a declaration from a treating doctor testifying to such. Thus,

9

Mr. Dantzler has failed to establish any genuine dispute of material fact. Perhaps because of this

the medical information he provided to SF/MTA should have been made by a doctor with a

12
For the Northern District of California

problem, Mr. Dantzler also argues (as noted above) that a determination as to the sufficiency of

11

United States District Court

10

specialty in cardiology, see Opp‟n at 5 – something that Dr. Meister lacks. But Mr. Dantzler has

13

offered no evidence or law to back up this argument.

14

Finally, Mr. Dantzler has not offered evidence of a discriminatory intent on the part of any

15

other employee or agent of the City. For example, there is no evidence of a discriminatory intent

16

on the part of Dr. Meister. Nor is there evidence of any discriminatory intent on the part of the

17

higher-up decisionmakers who issued the various letters to Mr. Dantzler (i.e., the Skelly letters,

18

Options Letter, and/or letters regarding his grievance). Mr. Dantzler has somewhat suggested a

19

discriminatory intent because he did not get notice of the letters (or at least most of the letters)

20

until after the relevant hearings had already taken place. The problem for Mr. Dantzler is that,

21

even if he was thereby treated unfairly (perhaps his due process rights were impacted), the claim

22

he has brought is discrimination based on disability. It is not reasonable to infer such a

23

discriminatory intent based on the notice problems alone. This is especially true because, even if

24

all that Mr. Dantzler got was post-hearing notice, he still had an abundance of opportunities to

25

contest the AWOL warnings post-hearing – or for that matter to provide the additional medical

26

documentation sought – yet, he failed to do so. This is not a situation where SF acted quickly; the

27

first AWOL warning was issued in January 2014, and Mr. Dantzler was not terminated until more

28

than a year later, in February 2015.
20

III.

1

CONCLUSION

2

Because there is insufficient evidence of discriminatory intent, the Court grants SF‟s

3

motion for summary judgment. In addition, because the Court is granting the motion for summary

4

judgment, the discovery dispute raised by the parties on January 3, 2018, see Docket No. 63 (joint

5

letter), is moot. To the extent SF has asked to be reimbursed the $1,500 cancellation fee for the

6

medical expert, the request is denied. The Court does not find that Mr. Dantzler canceled the IME

7

in bad faith and, in any event, his financial circumstances would make any award in SF‟s favor

8

unjust.

9
10

and close the file in this case.
This order disposes of Docket No. 45.

12
For the Northern District of California

United States District Court

11

The Clerk of the Court is instructed to enter final judgment in accordance with this opinion

13

IT IS SO ORDERED.

14
15
16
17

Dated: January 8, 2018
______________________________________
EDWARD M. CHEN
United States District Judge

18
19
20
21

22
23
24
25
26
27
28

21