Byrd v. New Prime, Inc.
Filing
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ORDER and OPINION granting in part Defendnant's Smmary Judgment and requesting further briefing. Signed on 02/27/2012 by District Judge Ortrie D. Smith. (Will-Fees, Eva)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
MICHAEL SCOTT BYRD,
Plaintiff,
vs.
NEW PRIME, INC.,
Defendant.
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Case No. 11-3076-CV-S-ODS
ORDER AND OPINION (1) GRANTING IN PART DEFENDANT’S SUMMARY
JUDGMENT (DOC. 30); AND (2) REQUESTING FURTHER BRIEFING
Defendant New Prime, Inc. (Prime), moves for summary judgment. The motion
is granted in part, and further briefing is ordered.
I. BACKGROUND
On August 5, 2010, Plaintiff Michael Scott Byrd was employed as an over-theroad truck driver for Prime. He reported to his immediate supervisor that he needed to
time off from work so he could get a checkup.
Prime provided Byrd a form entitled “Employee Request for Family or Medical
Leave.” The form asked Byrd to choose (from among five choices) his reason for
needing leave. Only one choice related to the health condition of the person requesting
time off; it was, “my own serious health condition makes me unable to perform at least
one of the essential functions of my job.” Byrd chose this reason on the form.
Prime notified Byrd that he was “eligible” for Family Medical Leave Act (FMLA)
leave and that he “[met] the eligibility requirements for taking FMLA leave.” Prime
informed Byrd that he needed to return certification supporting his request for FMLA
leave so Prime could “determine whether [his] absence qualifies as FMLA leave.”
On August 6, 2010, Byrd sought treatment from the office of Carrie Benson, MD,
because he “wasn’t sleeping” and “wasn’t eating.” Byrd was diagnosed with (among
other things) “[b]ipolar i [sic] disorder most recent episode (or current) depressed
unspecified,” and he was prescribed medication.1
Byrd returned to Dr. Benson’s office two weeks later on August 20, 2010. He
wanted to go back to work. After her examination, Dr. Benson wrote a note stating Byrd
was seen in her office and that he “may return to work.”
Byrd authorized Prime to obtain his medical records. At the request of Prime’s
safety department, the medical records were reviewed by John Abraham, MD, a
physician at Orion Healthcare, which is located inside the Prime facility. Since 2007, Dr.
Abraham has performed evaluations to determine if potential drivers are medically
qualified to operate commercial motor vehicles. After reviewing Dr. Benson’s medical
records, Dr. Abraham determined Byrd was not qualified to operate a commercial
vehicle and that he “needs to be stable for at least 1 yr.” Dr. Abraham informed Prime
of his opinion.
On August 23, 2010, Prime terminated Byrd based on Dr. Abraham’s opinion.
Byrd went to another doctor (Arthur G. Bentley, Jr, DO) and obtained a medical
certificate to drive. He presented this to Prime, but the company refused to accept Dr.
Bentley’s opinion over Dr. Abraham’s and did not rehire Byrd.
Byrd is suing Prime for allegedly violating FMLA, the Missouri Human Rights Act
(MHRA), and the Americans with Disabilities Act (ADA), and for wrongful termination.
Prime moves for summary judgment.
II. DISCUSSION
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
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“Bipolar I Disorder is mainly defined by manic or mixed episodes that last at
least seven days, or by manic symptoms that are so severe that the person needs
immediate hospital care. Usually, the person also has depressive episodes, typically
lasting at least two weeks.” Bipolar Disorder, NATIONAL INSTITUTE OF MENTAL HEALTH,
http://www.nimh.nih.gov/health/publications/bipolar-disorder/complete-index.shtml.
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matter of law.” Fed. R. Civ. P. 56(a).
(1) FMLA
Byrd has alleged FMLA claims of interference and retaliation. Prime argues it is
entitled to summary judgment on both of them because, in its view, Byrd cannot show
that he ever successfully requested leave under the FMLA. The Court tends to
disagree with this argument. The Court also tends to disagree with Prime’s argument
Byrd did not suffer from a “serious health condition” under FMLA. But the Court
nevertheless concludes Prime is entitled to summary judgment on Byrd’s FMLA claims.
First, to survive summary judgment on his retaliation claim, Byrd must
demonstrate Prime’s reason for firing him (because Dr. Abraham concluded Byrd could
not safely operate a truck) was pretextual. See Blakley v. Schlumberger Technology
Corp., 648 F.3d 921, 934 (8th Cir. 2011). One method of doing this which Byrd relies
on is by demonstrating the employer changed its explanation for why it fired the
employee. See Phillips v. Mathews, 547 F.3d 905, 913 (8th Cir. 2008).
When Prime terminated Byrd, it told him it was because he was not medically
qualified to operate a vehicle in interstate commerce based on his medical records. But
motor carriers like Prime input the circumstances of a truck driver’s change of
employment in a database known as “HireRight.” In Byrd’s case, the database shows
“Resigned/Quit (or Driver Terminated Lease)” as his reason for leaving Prime.
Byrd argues this creates a genuine issue of material fact whether Prime really
terminated him for medical reasons. But Byrd has provided no evidence about
HireRight other than the reason it states for his departure; he has not shown whether
disqualification for medical reasons (or something similar) was even an option Prime
could have chosen in HireRight. There is an insufficient basis for the Court to conclude
the reason provided was necessarily false. Also, with respect to Prime’s asserted
reason for terminating him, Byrd disputes Dr. Abraham’s conclusion he was not
qualified to safely drive a truck. But the proper inquiry in this context is not whether Dr.
Abraham was correct about Byrd’s ability to drive, but whether Prime honestly believed
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Dr. Abraham was correct. See Johnson v. AT & T Corp., 422 F.3d 756, 762–63 (8th
Cir. 2005). Byrd has identified no evidence indicating Prime did not honestly rely on Dr.
Abraham’s opinion.
And even if Prime’s reason for firing Byrd was false, such a showing “will [not]
always be adequate to sustain a jury's finding of liability.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 148 (2000). “The showing of pretext necessary
to survive summary judgment requires more than merely discrediting an employer's
asserted reasoning for terminating an employee. [The employee] is also required to
show that the circumstances permit a reasonable inference to be drawn that the real
reason [the employer] terminated him was because of his race.” See Johnson, 422
F.3d at 763 (citing in part Reeves, 530 U.S. at 146–47). Byrd’s prima facie showing of
FMLA retaliation is not strong. It is built on temporal proximity—he has no other
evidence of a causal connection between his leave and his termination—and so built it
is undermined by the fact that “the allegedly retaliatory motive coincides temporally with
the non-retaliatory motive.” Wierman v. Casey's General Stores, 638 F.3d 984, 1001
(8th Cir. 2011) (citations omitted). And Byrd’s evidence that Prime’s reason for firing
him was false is not strong either. Taken together, Byrd’s evidence of discrimination is
not sufficient for a jury to conclude Prime terminated Byrd because he took leave from
work. Prime is entitled to summary judgment on Byrd’s FMLA retaliation claim.
Byrd’s FMLA interference claim alleges that after he returned from leave, he was
not restored to his position as was his right under 29 U.S.C. § 2614(a). This provision
entitles an eligible employee to be restored to his or her employment position (or an
equivalent one) if he or she takes leave under § 2612 for the intended purpose of the
leave. But “‘an employer who “interferes with an employee's FMLA rights will not be
liable if the employer can prove it would have made the same decision had the
employee not exercised the employee's FMLA rights.”’” Blakley v. Schlumberger
Technology Corp., 648 F.3d 921, 934 (8th Cir. 2011) (citations omitted). “Stated
another way, ‘where an employer's reason for dismissal is insufficiently related to FMLA
leave, the reason will not support the employee's recovery.’” Id. (citation omitted).
Prime contends it would have terminated Byrd based on Dr. Abraham’s opinion
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even if Byrd had not taken leave. Byrd counters by pointing to the same evidence as
Prime—that Prime relied on Dr. Abraham’s opinion in terminating him. Byrd’s theory
appears to be that Prime is liable because the medical records Dr. Abraham reviewed
were from when Byrd was on leave. But Prime’s decision was based on the content of
those medical records—not their timing. The uncontroverted evidence shows Prime
would have terminated Byrd even if he had not taken leave. Prime is entitled to
summary judgment on Byrd’s interference claim.
(2) ADA/MHRA
One of the elements of an ADA prima facie case is that the plaintiff be qualified to
perform the essential functions of the job, with or without reasonable accommodation.
Tusing v. Des Moines Independent Community School Dist., Tusing v. Des Moines
Independent Community School Dist., 639 F.3d 507, 515 (8th Cir. 2011). Prime argues
it is entitled to summary judgment on Byrd’s ADA claim because he cannot meet this
element. (Prime’s argument equally applies to Byrd’s MHRA claim, which is also
premised on alleged disability discrimination.)
The parties’ dispute centers on 49 C.F.R. § 391.41, a regulation promulgated by
the Federal Motor Carrier Safety Administration (FMCSA), which is a separate
administration within the Department of Transportation (DOT). This regulation governs
the physical qualifications for drivers of commercial motor vehicles. In relevant part, it
states a person is qualified if he or she “[h]as no mental, nervous, organic, or functional
disease or psychiatric disorder likely to interfere with his/her ability to drive a
commercial motor vehicle safely.” § 391.41(b)(9).
Prime designated Dr. Abraham to provide his expert opinion concerning whether
Byrd was qualified to operate a commercial vehicle after returning from leave in August
2010. In his report, Dr. Abraham stated that he based his opinion on § 391.41(b)(9),
advisory criteria published by FMCSA, authoritative treatises, and his experience.
Plaintiff counters Dr. Abraham misapplied the guidance contained in the authoritative
sources he consulted. Plaintiff argues that this misapplication—coupled with Dr.
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Benson’s note he could return to work and Dr. Bentley’s medical certification—creates a
genuine issue of fact whether he was qualified to drive under § 391.419(b)(9) when he
returned from leave.
The Court is concerned that DOT has primary jurisdiction over the issue of Byrd’s
qualification to drive and/or that Byrd failed to exhaust his ADA/MHRA claim. Harris v.
P.A.M. Transport, Inc., 339 F.3d 635, 636–37 (8th Cir. 2003) also involved competing
physicians’ opinions whether a truck driver was medically qualified to drive. Similar to
Byrd, the driver in Harris sued a prospective employer for discrimination under ADA
because the employer relied on its physician’s opinion the driver was unqualified and
did not accept the contrary opinion of the driver’s physician. See id. at 637. The Eighth
Circuit affirmed the district court’s dismissal of the plaintiff’s ADA claim because the
plaintiff failed to exhaust DOT procedures applicable in instances where there is
disagreement concerning the driver's qualifications. See id. at 638–39.
The parties are directed to brief whether this case should be dismissed for failure
to exhaust remedies as in Harris. The briefing schedule is set forth below.
(3) Wrongful Termination
Byrd’s wrongful termination claim is dependent on the facts alleged with respect
to his statutory claims. Prime contends Byrd’s wrongful termination claim should fail
because his statutory claims fail, and with respect to his FMLA claim the Court agrees.
But the Court has not ruled the ADA/MHRA claims. Prime is granted summary
judgment on Byrd’s wrongful termination claim only to the extent relied on his the
allegations in his FMLA counts.
III. CONCLUSION
Prime is granted summary judgment on Byrd’s claims of FMLA interference and
retaliation. Prime is also granted summary judgment on Byrd’s wrongful termination
claim to the extent it relies on his FMLA allegations. Prime’s brief on the issue whether
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Byrd disability claims should be dismissed on theories of primary jurisdiction or failure to
exhaust remedies shall be filed on or before March 12, 2012. Byrd’s response shall be
filed on or before March 26, 2012. Prime’s reply shall be filed on or before April 2,
2011.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: February 27, 2012
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