FRILANDO v. SMITH & SOLOMON SCHOOL OF TRACTOR TRAILER DRIVING, INC.

Filing 44

OPINION. Signed by Judge Kevin McNulty on 07/27/2017. (ek)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:15-cv-02917-KM-JBC

KENNETH FRILANDO
Plaintiff,

OPINION
V.

BORDENTOWN DRIVER TRAINING
SCHOOL, LLC d/b/a SMITH & SOLOMON,
Defendant.

MCNULTY. U.S.D.J.:

Before the Court is a motion for summary judgment pursuant to Fed. R.
Civ. P. 56 (ECF No. 39) brought by the defendant, Bordentown Driver Training
School, LLC d/b/a Smith & Solomon (“Bordentown”). Bordentown runs
training classes for people who seek commercial driver’s licenses (“CDLs”). In
his Complaint (ECF No. 1), the plaintiff, Kenneth Frilando, alleges that
Bordentown has violated Title III of the Americans with Disabilities Act (the

§ 12181, et seq., as well as the New Jersey Law Against
Discrimination (the “NJLAD”), N.J. Stat. Ann. § 10:5-1, et seq., by refusing to

“ADA”), 42 U.S.C.

accommodate his disability in a CDL training course in which he attempted to
enroll. Frilando asks for declaratory, injunctive, and monetary relief, including
an order that Bordentown implement policies and accommodations for serving
deaf and hard-of-hearing students.’
For purposes of this opinion, citations to the record will be abbreviated as
follows:
1

Complaint (ECF No. 1)
Answer (ECF. No. 6)

=

=

Compi.

Answer

Memorandum of Law in Support of Defendant’s Motion for Summary Judgment
(ECF No. 39-1) = Br.

Bordentown asks this Court for summary judgment and a dismissal of
Frilando’s Complaint on four grounds. Bordentown says it cannot reasonably
accommodate Frilando’s disability without (1) fundamentally altering its
training course; (2) threatening the health and safety of the public; and (3)
incurring an undue financial burden. Bordentown also argues (4) that even
setting aside Frilando’s hearing disability, he was not medically qualified to
participate in the training course.
This case presents knotty legal, not to say social, issues. Mr. Frilando
admirably seeks to overcome a hearing disability. He believes that his disability
should not limit his employment options, an aspiration that finds considerable
support in federal law. Federal regulations do, however, place limitations,
based on safety concerns, on a deaf person’s obtaining a CDL. Mr. Frilando
insists that those limitations can be accommodated by certain means,
including the use of an American Sign Language interpreter, and that he will
be entitled to an ongoing waiver of the hearing requirement. And of course Mr.
Frilando is not yet applying for the CDL itself; he only seeks an accommodation
sufficient to permit him to complete the Class A training course at Bordentown.

Defendant’s Statement of Undisputed Material Facts (ECF No. 39-2)

=

Def. SUF

Exhibits to Defendant’s Motion for Summary Judgment (ECF No. 39-3 through
6) = Def. Ex.
Plaintiffs Memorandum of Law in Opposition to Defendant’s Motion for
Summary Judgment (ECF No. 40) = Opp.
Plaintiffs Response to Defendant’s Local Rule 56.1 Statement of Material Facts
(ECF No. 40-1, pp. 2—79) = P1. Resp.
Plaintiffs Supplemental Local Rule 56.1 Statement of Material Facts (ECF No.
40-1, pp. 80-87) = P1. Supp.
Exhibits to Plaintiffs Memorandum of Law in Opposition to Defendant’s Motion
for Summary Judgment (ECF Nos. 40-2-40-5) = P1. Ex.
Reply in Support of Defendant’s Motion for Summary Judgment (ECF No. 41)
Reply
Defendant’s Response to Plaintiffs Supplemental Statement of Material Facts
(ECF No. 4 1-1) = Def. Resp.
2

=

On the other hand, no one disputes that Bordentown is a highly
reputable driver training school, with an interest in graduating students who
will qualify for a CDL. Of course a person need not meet CDL licensing
standards before being trained. The training process itself, however, involves
the operation of heavy machinery in the yard and on public roads, raising
immediate safety concerns that cannot simply be bucked to the licensing
phase. There is evidence in the record that Bordentown behaved responsibly
and even sought regulatory guidance as to how it might practically
accommodate Mr. Frilando’s disability. But Bordentown fears that it will have
to impair its educational mission with respect to other students, as well as
incur a potentially ruinous expense, in order to accommodate a single student
who may not ever be eligible for a license.
Having reviewed the record, I conclude that these issues are just that—
issues, which will need to be submitted to a fact finder for decision. These
difficult questions, requiring a sensitive balance of competing policies, should
be aired with the benefit of a full factual record. Because there are disputed
issues of material fact, Bordentown’s motion for summary judgment will be
denied.
I. BACKGROUND
A. The Parties

Bordentown is a New Jersey-licensed organization that operates
Commercial Driver’s License (“CDL”) training schools throughout Delaware,
New Jersey, and Pennsylvania. According to Bordentown, because its training
programs involve the use of commercial motor vehicles (“CMVs”), it is classified
as an interstate motor carrier and must adhere to the Federal Motor Carrier
Safety Regulations (“EMCSR5”), which are issued by the Federal Motor Carrier
Safety Administration (the “FMCSA”). (Def. SUE

¶f 2—3; Def. Ex. 1, ¶

4)2

The

FMCSRs define a CMV to include “any self-propelled or towed motor vehicle
Frilando disputes that the FMCSA has jurisdiction over driving schools. (See,
e.g., P1. SUE ¶ 31)

2

3

used on a highway in interstate commerce” that “[h]as a gross vehicle weight
rating or gross combination weight rating, or gross vehicle weight or gross
combination weight, of 4,536 kg (10,0001 pounds) or more.” (Id.
49 C.F.R.

¶ 4 (quoting

§ 390.5)) A state-issued CDL is generally required before a person is

permitted to drive a CMV alone.3
Frilando has been deaf since birth. With hearing aids, he can detect loud
noises such as sirens, gunshots, explosions, fire alarms, car horns, doorbells,
and ringing phones, but he cannot identify their source or direction. (Def. SUP

Vt 116—117; P1. SUP ¶ 1) He communicates primarily by using American Sign
Language (“ASL”) (P1. SUQ ¶ 1), but also by written English and gestures. (P1.
SUF ¶ 3) Frilando learned to drive a car with an instructor in the front seat and
an ASL interpreter in the back seat. During full stops, the interpreter would
convey to Prilando the directions spoken by the instructor. (P1. Resp.

¶ 7—8;

¶ 6—8) Prilando has held a non-commercial driver’s license for over
thirty years, but now wants to drive a CMV. (P1. SUP ¶ 6)

P1. SUP

B. Requirements for Obtaining a CDL
1. Eligibility and the Hearing Test Waiver
An individual who wishes to obtain a CDL must pass an FMCSR
prescribed medical fitness examination and obtain a medical certificate from a
medical examiner who is certified and listed on the PMCSA’s national registry.
(Def. SUP

¶ 22) To obtain and maintain a CDL, an individual also must be

capable of passing an FMCSR-prescribed hearing test:
A person is physically qualified to drive a commercial
[i]irst perceives a
motor vehicle if that person
forced whispered voice in the better ear at not less
than 5 feet with or without the use of a hearing aid or,
if tested by use of an audiometric device, does not
have an average hearing loss in the better ear greater
than 40 decibels at 50 Hz, 1,000 Hz, and 2,000 Hz
with or without a hearing aid when the audiometric
.

.

.

FMCSA, Commercial Driver’s License Program,
https://www.fmcsa.dot.gov/registration/comrnercial-drivers-license (last visited July
24, 2017).

4

device is calibrated to American National Standard
1951.
(formerly ASA Standard) Z24.5
—

(Def. SUF

¶

28 (quoting 49 C.F.R.

§

391.41(b)(11)) Since 2013, however, the

FMCSA has waived the hearing test requirement for certain individuals. (Id.

¶

29—31)
Requirements for CDL training courses—as opposed to requirements for
the CDL itself—are less clear. The FMCSA has not regulated or offered
guidance as to how CDL trainers should accommodate individuals who have
received FMCSA hearing-test waivers. (Def. SUF

¶

33) Bordentown’s Chief

Operating Officer, John Diab, testified that in 2014 he asked the FMCSA for
guidance on that issue. FMCSA allegedly replied that there is no test or
acceptable training program for deaf CDL applicants. (Id.

¶

39—41) Diab says he

was told that hearing-test waivers were intended to allow individuals who had
lost their hearing since receiving a CDL to continue to drive; the FMCSA had
not considered how unlicensed, hearing-impaired individuals could be granted
waivers in order to be trained. (Id.

¶

40) Diab testified that he also asked

administrators from the American Association of Motor Vehicle Administrators
(the “AAMVA”) for guidance; they told him that the FMCSA had asked the
AAMVA to create a test for deaf CDL applicants, but that the AAMVA had
declined to do so, citing safety concerns.4 (Id.

¶

41)

Frilando twice sought to obtain an FMCSR-compliant medical certificate.
(Id.

¶

120) First, he obtained a medical certificate from Dr. Lawrence Marino.

Dr. Marino, however, was not listed on the FMCSA’s national registry. (Def.
SUP

¶1J

121—126) When Frilando realized this, he sought a second certificate

from Dr. Kwi Y. Yu, who is FMCSR-certified. Dr. Yu issued Frilando a medical
certificate, dated July 30, 2015 (Def. Ex. 20). Dr. Yu now says, however, that
he did not know that Frilando had previously been diagnosed with sleep apnea
and atrial fibrillation (“A-fib”). Bordentown implies that Frilando purposely
The AAMVA develops standard CDL examination questions and protocols. The
FMCSRs require that questions and protocols used for the states’ actual CDL tests be
comparable to or in conformity with AAMVA standards. (Def. SUF ¶jJ 8, 52—54)

4

0

withheld this information; Frilando says that Dr. Yu never elicited it. Dr. Yu
apparently attempted, with limited success, to communicate with Frilando by
speaking loudly. (Def. SUP 9132—33; P1. Resp.

9

132—33) Dr. Vu has since

testified that he would not have issued Frilando a medical certificate had he
known about Frilando’s other medical conditions; sleep apnea, he said, might
prevent Frilando from ever being medically cleared under the FMCSRs. (Id.
128—135) Frilando, however, has adduced evidence that the sleep problem was
minor, easily remedied by using a new pillow, and there is nothing further in
the record indicating the extent to which the A-fib condition would pose a
danger. (See Def. Ex. 3 at 144—5 1)
On January 13, 2015, between the time he received an invalid medical
certificate from Dr. Marino and a facially valid, but now questioned, medical
certificate from Dr. Vu, Frilando applied for and received a 90-day hearing test
waiver from the FMCSA. It states that the FMCSA “is granting this waiver
so [Frilandoj may complete driver training school.” (Def. Ex. 21) The FMCSA
issued Frilando a second, two-year waiver on March 29, 2015. (Def. SUF ¶j
138—139) Bordentown claims that neither hearing-test waiver is effective
because the FMCSRs require an applicant seeking a waiver to provide a
medical certificate that is valid. (Id.

¶

140)

2. CDL Testing
The FMCSRs require that all state-level CDL examinations include a
knowledge test and a skills test, covering specific, defined subject areas. (Def.
SUP

¶

42) The knowledge test contains FMCSA-approved questions. The skills

test comprises three phases, covering pre-trip vehicle inspection skills, basic
vehicle control skills, and safe on-road driving skills. An applicant must
complete all four test components to pass the CDL examination. (Id.

¶

44—45)

FMCSR standards prohibit the use of interpreters (including ASL
interpreters) during any portion of the CDL examination. As of the time
Frilando sought to enroll at Bordentown, neither New York’s nor New Jersey’s
CDL examination permitted the use of ASL interpreters or otherwise

6

accommodated hearing-impaired individuals. (Id.

¶ 57). The FMCSRs also state

that “[n]either the applicant nor the examiner may communicate in a language

¶J 46—48 (citing 49 C.F.R.
§ 383.133(b)(3) and quoting 49 C.F.R. § 383.133(c)(5); see also id. ¶ 82).
other than English during the skills test.” (DeL SUE

Another FMCSR provision requires CMV drivers to be able to speak English
well

enough to converse with the general public, to understand highway signs

and signals, to respond to inquiries by officials, and to make entries on reports
and records. (Id.

¶ ¶ 49 (quoting 49 C.F.R. § 391.l1(b)(2))

As noted above, however, the FMCSRs do not specifically regulate CDL
training courses, so the particulars of such a course would not literally violate
the FMCSRs. Indeed, a CDL training program, however helpful, is not a
prerequisite to a CDL application. (Id.

¶ 32) Diab stresses, however, that the

entire point of the course is to prepare individuals for the CDL test, the
contents of which are prescribed by the FMCSRs. At any rate, says Diab,
accommodating a deaf individual would put Bordentown at risk of losing its
operating license; breaching the terms of its insurance policies (which
independently require compliance with FMCSR standards); and being held
liable for any motor vehicle accidents that occur during training. (DeL SUF
36—37; Def. Ex. 1,

9

¶ 4)

C. Bordentown’s CDL Training Course

At each of its nine locations, Bordentown offers a 160-hour “Class A”
CDL training program for students who have no prior experience operating a
CMV. (Def. SUF

¶IJ 62—64) To enroll, prospective students must, inter cilia, sign

an acknowledgement that they “must acquire and maintain a Federal DOT
Medical Card and must have it in [theirj possession at all times.” (Id.

¶ 65—66

(quoting Def. Ex. 18 at BDTS-0 139)) (I gather from the record that the “Federal
DOT Medical Card” refers to, or at least includes, the FMCSR certificate. (See
Def. Ex. 2 at 34:13—35:2.))

7

Bordentown’s Class A has three phases: classroom training, yard
training, and road training. (Del. SUF

¶

68) These phases roughly correlate to

the sections of the CDL examination.
Phase one, the classroom training, prepares students for the written
knowledge component of the CDL examination. (Id.1 72) At Bordentown’s
largest location, in Linden, New Jersey,5 classroom training uses videos,
computer presentations, and lectures. (Id.

¶

73) At the end of classroom

training, students take the written CDL knowledge test at their state
department of motor vehicles (“DMV”). If they pass, they obtain a Commercial
Learner’s Permit (a “CLP”), which is required to operate a CMV (along with an
instructor). (Id.

¶JJ

50, 75; Del. Ex. 1,

¶

12)

Once a Class A student has obtained a CLP, he or she progresses to
phase two: “yard training.” Yard training prepares students for the pre-trip
vehicle inspection and basic vehicle control portions of the CDL skills
examination. (Def. SUP

¶1J

76—79) At Bordentown’s Linden facility, yard

training occurs in a private lot, or “yard.” At a given time, the yard may contain
20 trucks and 150 students, with each instructor overseeing up to three
vehicles and fifteen students. (Id.

¶{

85—86) Bordentown describes the safety of

yard training as being contingent on students’ remaining focused on their
vehicles. (Id.

¶jJ

87—89) That is just one reason, Bordentown says, that

accommodating a deaf student by allowing an ASL interpreter on-site during
yard training would be dangerous unless Bordentown dramatically changes the
way it operates in some yet-unspecified way. (Id.

¶

90—93)

The third Class A phase, road training, involves an instructor’s taking up
to four students on the road. (Del SUP

¶ 101)

At Bordentown’s Linden location,

this third phase takes place exclusively on public roads. (Id.

¶

102) Therefore,

Bordentown says, the safety of the training depends on verbal communication
Bordentown describes only the practices at its Linden location, and certain
communications between Diab and Wessendorf refer to Frilando as a “potential Linden
student.” (See, e.g., Def. Ex. 23) Frilando does not dispute that he sought to enroll at
the Linden location specifically, so that location is my focus.
8

between students and instructors, students’ ability to recognize audible alerts,
and students’ abilit to respond immediately to verbal instruction. (Id.

95—

¶

106) Again, Bordentown submits that allowing an ASL interpreter to participate
in road training would threaten the safety of students, instructors, and the
public. It would also require significant changes to the way Bordentown
operates, because CMV seats normally occupied by students would have to be
allocated to ASL interpreters. (Id.

¶f

107—111)

B. Bordentown’s Efforts to Accommodate Frilando

Frilando first made known his interest in enrolling in Class A through his
brother. The brother contacted Bordentown and made an appointment for
Frilando to meet with Bordentown representatives on February 20, 2015. (Def.
SUF

¶

143) Neither Frilando nor his brother showed up for that February 20th

meeting. (Id.

¶

144) On March 17, 2015, Frilando’s brother called Bordentown

and spoke with Bordentown’s Director of Safew and Program Training, Dale
Wessendorf. He also e-mailed Wessendorf copies of Frilando’s 90-day and twoyear hearing test waivers. (Id.

¶

145) On March 23th and 29th of 2015,

Frilando’s brother followed up by e-mail. (Def. SUF

¶

14 1—45; P1. Resp.

9

14 1—45) On March 30, 2015, Bordentown responded that it was seeking
guidance from the Federal Department of Transportation (“DOT”) and local
authorities as to how it could “safely and effectively accommodate the specific
needs” of the deaf

community.

(Def. SUF

¶J

141—149) Frilando’s brother

responded that time was of the essence because Frilando’s permit would be
expiring on January 2, 2016. (Id.

¶

149)

Once Bordentown learned of Frilando’s interest in Class A, it again
sought guidance from FMCSA administrators. The administrators told
Bordentown that there was still no CDL test or acceptable training program for
In the Complaint, Frilando averred that he “possesses a Class A Commercial
Driver License (CDL) from the State of New York, which is valid and
January 2, 2016.” (Compl. ¶ 8) The reference is confusing, but a reference in
Frilando’s deposition seems to suggest that this was a commercial learner’s permit.
(SeeDef. Ex. 3 at 113:21—116:6)
6

expires

9

on

deaf individuals and that the AAMVA, citing safety concerns, had refused to
develop such a test to accommodate deaf individuals. (Def. SUP ¶‘ 157—158)
Bordentown also contacted New Jersey’s CDL examiner, Pennsylvania’s DMV,
and New York’s DMV. New York’s DMV never provided an answer; New Jersey
and Pennsylvania said they would not test a deaf person because it would not
be safe to do so. (Id.

¶11 160—162)

Bordentown also conducted its own analysis to determine the feasibility
of accommodating Prilando, but concluded that deaf students could not safely
participate in Class A. (Id.

¶ 163) Bordentown communicated this conclusion to

Frilando’s brother on April 6, 2015.
E. Bordentown’s Cost Analysis

John Diab testified that Bordentown “looked at [the inquiry] strictly from
a safety standpoint” when it rebuffed Frilando in March of 2015. At the time,
issues of cost did not come up; Bordentown became concerned about cost only
when Diab sat in on Frilando’s deposition and learned that the cost of two ASL
interpreters for a day would be $2500. (Def. Ex. 2 at 210:10-211:23)
Diab estimates that it would cost between $60,000 and $150,000 to
provide a student with two ASL interpreters for the average duration of Class A.
(Def. SUP

¶ 112) That cost would offset most or all of Bordentown’s $140,000

in annual profits from the Linden facility, and a significant portion of the
$400,000 in annual profits company-wide. (Id. ¶‘ 114—15)
F. Procedural History

No prior motion practice has occurred in this case. Frilando filed the
Complaint against Bordentown on April 24, 2015, and on June 26, 2015,
Bordentown answered the Complaint, alleging as affirmative defenses, inter

cilia, the arguments it now makes in support of its motion for summary
judgment. (Answer pp. 8—9)
H. LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no genuine dispute as to
10

any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S Ct. 2505, 91 L.Ed.2d 202 (1986); Kreschollek v. S. Stevedoring Co.,
223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment,
a court must construe all facts and inferences in the light most favorable to the
nonmoving party. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d
386, 393 (3d Cir. 1998). The moving party bears the burden of establishing
that no genuine issue of material fact remains. See Celotex Corp. v. Cat rett, 477
U.S. 317, 322—23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[Wlith respect to an
issue on which the nonmoving party bears the burden of proof.

.

.

the burden

on the moving party may be discharged by ‘showing’—that is, pointing out to
the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party
must present actual evidence that creates a genuine issue as to a material fact
for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth
types of evidence on which nonmoving party must rely to support its assertion
that genuine issues of material fact exist). “[U]nsupported allegations

.

.

.

and

pleadings are insufficient to repel summary judgment.” Schoch v. First Fid,
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Nonvest
Mong., Inc., 243 F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created
a genuine issue of material fact if it has provided sufficient evidence to allow a
jury to Find in its favor at trial.”). If the nonmoving party has failed “to make a
showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial,

.

there can be ‘no genuine issue of material fact,’ since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily

11

renders all other facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53,
55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322—23).
In deciding a motion for summary judgment, the court’s role is not to
evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.
Ct. 2505. Credibility determinations are the province of the fact finder. Big
Apple BATTY, Inc. z,’. BMWof N. Am., Inc., 974 P.2d 1358, 1363 (3d Cir. 1992).
The summary judgment standard, however, does not operate in a
vacuum. “[I]n ruling on a motion for summary judgment, the judge must view
the evidence presented through the prism of the substantive evidentiaiy
burden.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505,
2513, 91 L. Ed. 2d 202 (1986). That “evidentiary burden” is discussed in the
following sections.
III.

DISCUSSION
A. ADA Title III

Title III of the ADA prohibits discrimination against individuals “on the
basis of disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or operates a
place of public accommodation.” 42 U.S.C.

§ 12182(a). See also Bowers v. Nat’l

Collegiate AthleticAss’n, 118 F. Supp. 2d 494, 514 (D.N.J. 2000), opinion
amended on reargument, 130 F. Supp. 2d 610 (D.N.J. 2001). Bordentown does
not dispute that Bordentown is a place of public accommodation under the
ADA and that Frilando is disabled. This motion concerns only the element of
discrimination, which, under Title III, includes
a failure to make reasonable modifications in policies,
practices, or procedures, when such modifications are
necessary’ to afford such goods, services, facilities,
privileges, advantages, or accommodations to
individuals with disabilities, unless the entity can
demonstrate that making such modflcations would

12

fundamentally alter the nature of such goods, services,
facilities, privileges, advantages, or accommodations;
12182(b)(2)(A)(ii) (emphasis added). Title III discrimination may

42 U.S.C.A.
also consist of

a failure to take such steps as may be necessary to
ensure that no individual with a disability is excluded,
denied services, segregated or othenvise treated
differently than other individuals because of the
absence of auxiliary aids and services, unless the entity
can demonstrate that taking such steps would
fundamentally alter the nature of the good, service,
facility, privilege, advantage, or accommodation being
offered or would result in an undue burden;
42 U.S.C.A.

§ 12182(b)(2)(A)(iii) (emphasis added).7

Regulations implementing Title III state the following about the means of
accommodating a disability:8
A public accommodation shall take those steps that
may be necessary to ensure that no individual with a
The Third Circuit has held, under the “specific governs the general” canon, that
42 U.S.C. § 12189 (Section 309) rather than 42 U.S.C. § 12182 (Section 302) governs
related to applications, licensing, certification, or
in the context of “examinations
credentialing
42 U.S.C. § 12189. Doe v. Nat’lBd. of Med. Examiners, 199 F.3d
146, 155 (3d Cir. 1999). Arguably, 42 U.S.C. § 12189, which is also directed to
courses related to applications, licensing, certification, or
“persons that offerlj
credentialing,” id. (emphasis added), might govern over 42 U.S.C. § 12182 in this case.
On the other hand, Judge Hochberg has reasoned that “Sec[tjion 309 [i.e., 42 U.S.C. §
only applies to courses that directly lead to applications, licensing,
121891
certification, or credentialing rather than optional courses that provide preparation for
a test required for applications, licensing, certification, or credentialing.” Malik v.
Kaplan Inc., No. CIV. 13-5948 FSH, 2014 WL 631933, at *2 (D.N.J. Feb. 18, 2014). I
tend to agree and, at any rate, the parties argue exclusively under § 12182 on this
motion. Therefore, I apply 42 U.S.C. § 12182.
.

.

.

.

.

.

.

.

.

Congress has charged the Attorney General with issuing regulations for all nontransportation provisions of Title III. 42 U.S.C. § 12 186(b). See Rawdin v. Am. Bd. of
Pediatrics, 582 F. App’x 114, 118 (3d Cir. 2014); Caruso v. Blockbuster-Sony Music
Entm’t Ctr. at Waterfront, 193 F.3d 730, 731 (3d Cir. 1999). The regulations, see
generally 28 C.F.R. § 36.101—36.608, “are ‘entitled to substantial deference,’ and
‘given controlling weight unless jthey are] arbitrary, capricious, or manifestly contrary
to the statute.”’ Rawdin v. Am. Bd. of Pediatrics, 582 F. App’s 114, 118 (3d Cir. 2014)
(quoting HelenL. v. Di Dario, 46 F.3d 325, 33 1—32 (3d Cir.l995) and Chevron, U.S.A.,
Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81
L.Ed.2d 694 (1984)).
8

13

disability is excluded, denied services, segregated or
otherwise treated differently than other individuals
because of the absence of auxiliary aids and services,
unless the public accommodation can demonstrate that
taking those steps would fundamentally alter the
nature of the goods, services, facilities, privileges,
advantages, or accommodations being offered or would
result in an undue burden, i.e., sign ficant dffIculty or
expense.
28 C.F.R.

§ 36.303(a) (emphases added). Under the regulations, “auxiliary aids

and services” includes “[q]ualified interpreters on-site or through video remote

§ 36.303(a)—(b)(1), and “qualified
interpreters” include “sign language interpreters.” 28 C.F.R. § 36.104.

interpreting (VRI) services,” 28 C.F.R.

The regulations further provide that when determining whether an action
would result in an undue burden, factors to be considered include:
(1) The nature and cost of the action

.

(2) The overall financial resources of the site or sites
involved in the action; the number of persons employed
at the site; the effect on expenses and resources;
legitimate safety requirements that are necessary for
safe operation, including crime prevention measures; or
the impact otherwise of the action upon the operation
of the site
(3) The geographic separateness, and the
administrative or fiscal relationship of the site or sites
in question to any parent corporation or entity;
(4) If applicable, the overall financial resources of any
parent corporation or entity; the overall size of the
parent corporation or entity with respect to the number
of its employees; the number, type, and location of its
facilities; and
(5) If applicable, the type of operation or operations of
any parent corporation or entity, including the
composition, structure, and functions of the workforce
of the parent corporation or entity.
28 C.F.R.

§ 36.104.

Title III also permits an entit to turn away an individual “where such
individual poses a direct threat to the health or safety of others

14

.

.

.

.

The term

‘direct threat’ means a significant risk to the health or safety of others that
cannot be eliminated by a modification of policies, practices, or procedures or
by the provision of auxiliary aids or

services.”

42 U.S.C.

§ 12182(b)(3).

In determining whether an individual poses a direct
threat to the health or safety of others, a public entity
must make an individualized assessment, based on
reasonable judgment that relies on current medical
knowledge or on the best available objective evidence,
to ascertain: the nature, duration, and severity of the
risk; the probability that the potential injury will
actually occur; and whether reasonable modifications
of policies, practices, or procedures or the provision of
auxiliary aids or services will mitigate the risk.
28 C.F.R.

§ 36.208(b) (emphasis added).

Accordingly, the broad question on the motion before me is whether Title
III excuses Bordentown’s failure to accommodate Frilando’s disability because
accommodating him would have been unreasonable—that is, because it would
have fundamentally altered the nature of Class A or resulted in an undue
burden to Bordentown, by virtue of safety or cost.

q

Schneider v. Shah, 507 F.

App’x 132, 137 (3d Cir. 2012) (non-precedential); Menkowitz v. Pottstown Mem’?
Med. Ctr., 154 F.3d 113, 121—22 (3d Cir. 1998) (“[B]ecause the appellant in this
case alleges that the hospital failed to ‘accommodate’ his disability, the hospital
is free to show that the relief requested would ‘fundamentally alter the nature
of such goods, services, facilities, privileges, advantages, or accommodations.’
Similarly, in no way would a hospital be forced to accommodate an unqualified
physician if he ‘poses a direct threat to the health and safety of others.”
(citations omitted)).
Finally, a person who seeks accommodation of a disability must
demonstrate that he or she is otherwise qualified to participate. See Schneider,
507 F. App’x at 137 (non-precedential) (“When a plaintiff alleges a failure to
accommodate under Title III of the ADA, [jhe must establish ‘(1) that the
plaintiff is disabled and otherwise qualified academically,

.

.

.“‘(quoting

Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir.2006)); Sapp v.
Premier Ethic. Op.. LP, No. CV 15-859 1 (RMB/AMD), 2016 WL 6434137, at *6
15

(D.N.J. Oct. 28, 2016) (“In order to state a claim under the ADA in the
educational context, a plaintiff must allege that “(1) [s]he has a disability, or
was regarded as having a disability; (2) [s]he was ‘otherwise qualified’ to
participate in school activities; and (3) [s]he was ‘denied the benefits of the
program or was othenvise subject to discrimination because of [her]
disabilitv.’9; cf. Menkowitz, 154 F.3d 113, 121 (3d Cir. 1998) (explaining that
“the absence of the phrase ‘qualified individual’ from Title III, which appears in
Title I, Title II, and the Rehabilitation Act

.

.

.

make[sj little difference in a case

where the plaintiff seeks reasonable accommodation[, because]

.

.

.

if more

than reasonable modifications are required of an institution in order to
accommodate an individual, then that individual is not qualified for the
program.” (quoting Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 154 (1st Cir.
1998)). Embedded in the accommodation issue, then, is the question of
whether Frilando’s potentially invalid medical certification renders him
otherwise unqualified to participate in Class A.
B. The NJLAD

Like Title III, the NJLAD prohibits discrimination in a place of public
accommodation. N.J. Stat. Ann.

§

10:5—12. The NJLAD, like Title III, provides a

defense where making an accommodation would impose an undue burden (in
terms of cost or “fundamental alteration” of operations) or serious harm.°
Under regulations implementing the NJLAD,
or employee of any place of public
(a) An owner
accommodation shall make such reasonable modifications
in policies, practices, or procedures, as may be required to
afford goods, services, facilities, privileges, advantages, or
accommodations to a person with a disability, unless the
owner
or employee of the place of public accommodation
demonstrates that making the modfications would impose
an undue burden on its operation.
...

...

(b) In determining whether an accommodation is
unreasonable because it will impose an undue burden on
the operation of a place of public accommodation, factors to
be considered include:
1. The overall size of the business which runs the place of
16

Therefore, courts consistently look to federal law to analyze disability
discrimination claims under the NJLAD, including “reasonable
accommodation” disputes. See Bowers v. National Collegiate Athletic Ass’n, 475

F.3d 524, 535 n. 12 (3d Cir. 2007) (“jT]he NJLAD relies on the same analytical
framework as the ADA.”); Costow v. Live Nation Entm’t, Inc., No. l5-CV-664,
2017 WL 1134382, at *3 n.2 (D.N.J. Mar. 27, 2017) (“[A]n analysis under the
NJLAD mirrors the analysis under Title III of the ADA.”); Chin v. Rutgers, No.
CV 14-1332 (JLL), 2016 WL 2653908, at 5 (D.N.J. May 9, 2016) (“The
standards for determining a violation of the

.

.

.

NJLAD are the same as those

under the ADA.”), affd No. 16-2737, 2017 WL 2703587 (3d Cir. June 22,
2017); Masci v. Six Flags Theme Park, Inc., No. CIV.A. 12-6585, 2014 WL
7409952, at *8 (D.N.J. Dec. 31, 2014) (“Because the protections provided to
disabled persons under the NJLAD are analogous to the protections offered
under the ADA, New Jersey courts therefore apply the standards developed
under the ADA when analyzing NJLAD claims.” (internal quotation marks
omitted)); Ellison v. Creative Learning Ctr., 383 N.J. Super. 581, 594, 893 A.2d
12, 20 (App. Div. 2006) (“[W]e disagree with the motion judge’s conclusion that
federal precedent construing the ADA cannot be utilized in this context
because reasonable accommodation is statutorily required under federal law,
whereas it is not specified by New Jersey law in this context.”).
Accordingly, I analyze Bordentown’s motion primarily under Title III, but
that analysis bears directly on Frilando’s parallel NJLAD claim.
public accommodation with respect to the number of
employees, number and type of facilities, and size of the
budget;
2. The nature and cost of accommodation sought; [and]
3. Whether the accommodation sought Lviii result in a
flu ndamental alteration to the goods, services, program or
activity offered.
N.J.A.C. 13:13—4.11 (emphases added); see also Ellison v. Creative Learning Ctr., 383
N.J. Super. 581, 593-95, 893 A.2d 12, 19 (App. Div. 2006) (noting the “defense of
N.J.A.C. 13:13—4.8, governing conduct toward the handicapped when there is a
reasonable probability of serious harm”).
17

C. Analysis

Bordentown makes the overlapping arguments that accommodating
Frilando in Class A would fundamentally alter the program, result in an undue
financial burden, and directly threaten the health and safety of others.
Therefore, Bordentown contends, it has not violated Title III of the ADA.
Bordentown also argues that Frilando has no basis for bringing an
unreasonable accommodation claim because, even setting aside his hearing
disability, he was not medically qualified to participate in Class A in the first
place.
Frilando offers five counterarguments as to why his claims should go
fonvard:
1. Fundamental alteration: the individualized inquiry requirement
First, Frilando argues that Bordentown’s fundamental-alteration defense
fails because Bordentown never conducted an individualized inquiry into
Frilando’s request for ASL interpreters. (Opp. 11) Specifically, Frilando avers he
was “never able to have a collaborative discussion with Bordentown about his
disability because Bordentown turned him away due to his deafness.” (P1. SUF

¶ 10)
It is true that a public accommodation cannot rest on generalities, but
must make an individualized inquiry when determining whether it can
accommodate a customer’s disabilit

.

The Supreme Court explained in PGA

Tour, Inc. v. Martin:
ITihe ADA was enacted to eliminate discrimination
against “individuals” with disabilities, 42 U.S.C. §
12101(b)(1), and to that end Title III of the Act requires
without exception that any “policies, practices, or
procedures” of a public accommodation be reasonably
modified for disabled “individuals” as necessary to
afford access unless doing so would fundamentally
alter what is offered, § 12182(b)(2)(A)(ii). To comply with
this command, an individualized inquiry must be made
to determine whether a specific modification for a
particular person’s disability would be reasonable under
the circumstances as well as necessary for that person,
18

and yet at the same time not work a fundamental
alteration.
532 U.S. 661, 663, 688, 121 S. Ct. 1879, 1883 (2001) (emphasis added).
Of course Bordentown could consider Frilando’s personal circumstances

only to the extent that he revealed them. “A defendant is not liable for failure to
provide reasonable accommodations under the ADA if the plaintiff does not
provide information needed to assess the request for an accommodation.” Mucci
v. Rutgers, No. CIV. 08-4806 RBK, 2011 WL 831967, at *21 (D.N.J. Mar. 3,
2011); Shaywitz v. Am. Rd. of Psychiatry & Neurology, 848 F. Supp. 2d 460,
467 (S.D.N,Y. 2012) (“Title III’s requirement that private entities make
‘reasonable accommodations’ for disabled individuals would be rendered
meaningless if the entity had no basis for knowing (1) what accommodations
the examinee was seeking, and (2) whether those accommodations were
reasonable in light of the disability and the test.”).
Bordentown argues that it did its best to make an individualized inquiry
into the feasibility of accommodating Frilando’s disability; it says that Frilando
was not very specific about his needs. (Reply 2; Def. Ex. 1,

¶

36) Frilando

claims that Bordentown never asked. (Opp. 11) Neither party’s argument is
very compelling in light of the somewhat vague factual record before me. True,
the email exchanges between Frilando’s brother and Bordentown did not
specifically address the degree of Frilando’s deafness or discuss any specific
proposed accommodations. (See Def. Exs. 22—23) There were also telephone
conversations, however, and neither party offers a detailed account of them.
Following those conversations, Bordentown took actions that tend to suggest it
must have learned at least something about the nature and extent of Frilando’s
disability from his brother. For example, it made some telephone inquiries into
the feasibility of accommodating a deaf student in Class A. It also appears that
Bordentown had in mind the necessity of ASL interpreters or other auxiliary
measures when it made its decision, suggesting that it must have learned
something about Frilando’s disability. (See, e.g., Opp. 9—10).

19

I conclude that issues of material fact remain as to whether Bordentown
sufficiently discharged its duty of individual inquiry.
2. Fundamental alteration: essential or peripheral features
Second, Frilando argues that Bordentown’s “fundamental alteration”
defense fails. An accommodation, he says, would not have altered “essential”
elements of Class A, but only “peripheral” features.

(Opp.

12)

The U.S. Supreme Court discussed the distinction between essential and
peripheral features in PGA Tour, Inc. v. Martin, supra, where an issue before the
Court was whether a disabled contestant in PGA Tour golf tournaments could
be denied the use of a golf cart under Title III of the ADA. 532 U.S. at 664. The
Court explained that permitting a contestant to use a golf cart might cause a
fundamental alteration where (1) it “alter[s] such an essential aspect of the
game of golf that it would be unacceptable even if it affected all competitors
equally” or (2) it “has only a peripheral impact on the game itself [but] might
nevertheless give a disabled player

.

.

.

an advantage over others

.

.

.

.“

Id. at

682.
Martin reasoned that walking the course is not an essential rule of golf
but rather a peripheral one; several other tournaments in fact allowed players
to use golf carts. Id. 689. The Court reasoned that Martin’s physical disability
made it unlikely that he would enjoy any competitive advantage over his
opponents by virtue of riding rather than walking the course. Id. at 690. The
Court therefore affirmed a preliminary injunction permitting him to use a cart
in PGA Tour and qualifying events. Id. at 672—74. Martin is anything but on
point—there, the potential downside was an uneven playing field, not a deadly
highway accident—but Martin nevertheless sets forth a framework for analysis.
Here, Bordentown argues that accommodating Frilando would
fundamentally alter Class A because (1) use of an ASL interpreter would
prevent Bordentown from operating under conditions corresponding to the CDL
test; (2) Bordentown could not teach Frilando to respond to audible alerts,

20

such as “leaking tires, squealing belts, brake pressure indications, emergency
sirens, and warnings from other drivers”; and (3) Bordentown could not provide
real-time verbal instruction on public roads. (Br. 22)
In portraying these as “essential” features of Class A, Bordentown
analogizes to Southeastern Community College v. Davis, 442 U.S. 397, 99 S. Ct.

2361 (1979). There, the U.S. Supreme Court held that a nursing school did not
illegally discriminate against a hearing-impaired applicant when it refused to
modify its curriculum to dispense with the requirement of “effective oral
communication” with a nursing instructor. Id. at 407, 99 S. Ct. at 2368.
Although the applicant could read lips and use sign language, the Court
remained unpersuaded that an accommodation would not compromise
essential features of the program. The training program’s clinical phase
required students to “instantly follow” instructions, and the Rehabilitation
Act1° “imposes no requirement upon an educational institution to lower or to

effect substantial modifications of standards” to accommodate a disabled
student. Id. at 413, 99 5. Ct. at 2370.
The applicant in Davis argued that the nursing school’s requirements
should not be constrained by the requirements for a state nursing license. 442
U.S. at 413 n.12. The Davis Court thought that the applicant was missing the

larger point.
[A nursing program] structured to train persons who
will be able to perform all normal roles of a registered
In
nurse, represents a legitimate academic policy
effect, it seeks to ensure that no graduate will pose a
Courts generally analyze the Rehabilitation Act under the same framework as
the ADA. See Ridley 5th. Dist. v. M.R., 680 F.3d 260, 282—83 (3d Cir. 2012) (“jTjhe
substantive standards for determining liability under the Rehabilitation Act and the
ADA are the same
); Hollinger v. Reading Health Sys., No. CV 15-5249, 2017 WL
*9 (ED. Pa. Jan. 31, 2017) (“IT]he substantive standards for determining
429804, at
liability under the Rehabilitation Act and the ADA are the same. To make out a prima
fade case under the [Rehabilitation Act], a plaintiff must show: (1) he or she is
handicapped or disabled as defined under the statute; (2) he or she is otherwise
qualified to participate in the program at issue; and (3) he or she was precluded from
participating in a program or receiving a service or benefit because of his or her
disability.” (internal quotation marks and citations omitted)).
1O

21

‘a.

danger to the public in any professional role in which
he or she might be cast.
Frilando makes an argument that resembles the one rejected in Davis.

That is, he distinguishes between driving school requirements and commercial
licensing requirements. The latter, he says, do not constrain the former. In

essence, he argues that the Court should focus on whether, with appropriate
accommodations, he can obtain the necessary training; whether he ultimately
can obtain a CDL is an issue for another day. The holding of Davis casts that
argument in a dubious light, but I think that under some versions of the facts,
it could be distinguished.” Like Bordentown, the nursing school in Davis cited

Frilando makes a legal argument that Davis’s Rehabilitation Act standards are
critically different from those of Title III; whereas Title III imposes affirmative
obligations on public accommodations to provide auxiliary aids and services and/or
make modifications, see 28 C.F.R. § 36.303(a), suprapp. 12—13, Frilando says, the
Court specifically determined in Davis that Section 504 of the Rehabilitation Act does
not require a school to take “affirmative action” to accommodate a disabled applicant.
442 U.S. at 407—408. But Frilando misses the portion of Davis in which Justice Powell
recognizes that Rehabilitation Act regulations do “require[ covered institutions to
make ‘modifications’ in their programs to accommodate handicapped persons, and to
provide ‘auxiliary aids’ such as sign-language interpreters.” Id. at 408. The Supreme
Court’s discussion of Davis in Alexander v. Choate, 469 U.S. 287, 300, 105 5. Ct. 712,
720 (1985) further supports the conclusion that the Davis standard has application to
Frilando’s case:
II

Regardless of the aptness of our choice of words in Davis, it
is clear from the context of Davis that the term “affirmative
action” referred to those “changes,” “adjustments,” or
“modifications” to existing programs that would be
“substantial,” 442 U.S., at 410, 411, n. 10, 413, 99 S.Ct., at
2369, 2369-2370, n. 10, 2370, or that would constitute
“fundamental alteration[sj in the nature of a program
id., at 410, 99 S.Ct., at 2369, rather than to those changes
that would be reasonable accommodations.
...,“

Id. at 300; see also Helen L. v. DiDario, 46 F.3d 325, 337 (3d Cir. 1995) (“In Cho ate,
the Court explained that ‘affirmative action’ as used in Davis “[rieferred to those
that would constitute ‘fundamental
‘changes,’ ‘adjustments,’ or ‘modifications’.
(quoting Davis, 469 U.S. at 300 n. 20));
alteration[sj’ in the nature of a program
Emerson v. Thiel Coil., 296 F.3d 184, 189 (3d Cir. 2002) (“We recognize that the
Rehabilitation Act and the ADA generally are interpreted consistently. See 28 C.F.R. §
36.103 (incorporating the standards applied under the Rehabilitation Act into Title
III).”).
.

22

.

safety concerns and the need for instantaneous verbal understanding. But
Davis asked for more than Frilando is seeking here. She requested that the
nursing school offer her individual faculty supervision any time she attended to
patients directly, and that she be excused from taking required clinical courses
altogether. 442 U.S. at 407—408. The Court reasoned that “[wihatever benefits
respondent might realize from such a course of study, she would not receive
even a rough equivalent of the training a nursing program normally gives.”
Davis, 442 U.S. at 410.
Frilando, in contrast, would participate in all phases of Class A. He
requests that ASL interpreters be present to communicate with him when he is
not actively driving, and suggests that his Bordentown instructor use a set of
predetermined hand signals for instantaneous communication while driving.
(See Opp. 6—7, 17) These suggested modifications have the support of
Frilando’s experts, who have used the same or similar modifications to train
deaf driving students (albeit not in the use of CMV5). (See, e.g., Opp. 6—7; P1.
Resp.

¶J 14, 16; Def. Ex. 13) In short, factual issues—and a potential battle of

the experts—remain in play; Davis falls short of actually dictating an outcome
under the circumstances of this case.
Bordentown also relies on Breece v. All. Tractor-Trailer Training II, Inc.,
824 F. Supp. 576 (E.D. Va. 1993). There, a judge determined that the
defendant, a tractor-trailer driving school, could not reasonably accommodate
the plaintiff (Breece), a deaf applicant. The Breece facts are in some respects
similar to, but in others critically different from, those before me. For example,
Breece “suggested that the truck cab could be modified so that the instructor
could stand behind him and plaintiff could continually ‘glance around’ at the
interpreter in order to understand the instructor’s instructions, questions,
comments, and warnings.” Id. at 577. Frilando, in contrast, proposes the use of
hand signals that he would comprehend instantly. Breece (like Davis in the
Supreme Court case) also requested more than Frilando is requesting here.
Breece proposed expanded classroom training and asked that the school

23

substitute simulated training for on-road instruction. The court concluded that
such simulated training would have little pedagogical value. Id. at 577—579.
Frilando does not ask Bordentown for such major curricular alterations.’2
Most importantly, Breece was a bench verdict by the judge as fact finder,
not a summary judgment decision. Id. Given the fact-specific nature of the
fundamental alteration defense in this case, a reasonable factfinder’3 could
diverge from Breece.
Whether it is an essential condition that training at all times mimic CDL
test conditions poses a factual issue. It is also uncertain whether it is essential
to Bordentown’s program that it adhere to FMCSR and AAMVA requirements.
(Compare, e.g., Def. Ex. 1

¶

4 (Diab stating Bordentown must comply with all

FMCSRs), with Def. Ex. 2 at 83:19—84:4 (Diab testifying in deposition,
“[FMCSA] has no jurisdiction over schools. They have jurisdiction over us as an
Interstate Commerce Carrier.

.

.

.

So the motor vehicle or FFMCSAI cannot

dictate to a school what you can or cannot do.”)) Bordentown does not cite any
FMCSRs that apply of their own force to CMV driver training courses or
facilities, and it cites no regulations that say training schools must adhere to

It was the classroom and simulator training that the court found would
fundamentally alter the defendant’s program. The court rejected the use of an
interpreter, as proposed, under Title III’s “direct threat” safety exception. Id. at 579—
80; see 42 U.S.C. § 12182(b)(3).
Fñlando has demanded ajun’. (See Compl. ¶ 1) The NJLAD has been
interpreted as giving a right to a jury trial because it creates legal rights and provides
for legal remedies, see Bowers v. Nat’l Collegiate Athletic Ass’n, 9 F. Supp. 2d 460, 472
(D.N.J. 1998); MeMillan v. Lincoln Fed. Say. & Loan Ass’n, 678 F. Supp. sg, 92 (D.N.J.
1988), but courts have determined that Title III, which permits only injunctive (i.e.,
equitable) relief to a private plaintiff, does not grant a right to ajuly trial, see, e.g.,
Hobleman v. Kentucky Fried Chicken, 260 F. Supp. 2d 801, 805 (D. Neb. 2003) (“I find
no authority which would permit an award of damages to the plaintiff, or require that
a jury trial be held, under Title III of the ADA.”); Dorsey v. City of Detroit, 157 F. Supp.
2d 729, 733 (E.D. Mich. 2001) (“Title III of the ADA does not provide for monetary
damages or, concomitantly, ajuiy trial, when the action is brought by a ‘person who is
being subjected to discrimination.”’).
13

24

CDL test conditions.’4 But even so, Bordentown maintains, if it fails to adhere
to FMCSRs, then it risks losing its operating license.
Safety is surely essential to Bordentown’s operations, and teaching
students to react to certain events and to drive on-road are essential features of
Class A. But whether audible alerts and on-road verbal instruction are
essential may depend on Frilando’s precise abilities. Whether a certain level of
hearing and verbal abilities are essential to those training functions is
unresolved. To some degree, this is a matter of conflicting expert testimony. For
example, Frilando submits that he has significant residual hearing for loud
noises, and his experts imply he may have visual or other physical advantages
relative to non-hearing impaired individuals that allow him to react to certain
events. (See, e.g., Def. Ex. 13 (Cox report, explaining that the deaf react more
quickly to objects in their peripheral vision than the hearing population); P1.
Supp.

‘

1) Meanwhile, Bordentown’s experts suggest that Frilando’s senses fall

short of what is required to participate properly in the training program. (See,
e.g., Def. SUF

¶

81). Frilando’s experts Daniel Cox and John Huey opine that

the use of hand signals and intermittent signing during driving instruction can
safely communicate all necessary information. (See, e.g., Def. Ex. 13 (Cox
Report); P1. Supp.

¶f

17—21 (summarizing Huey testimony)) Bordentown’s

experts disagree. (See, e.g., Def. SUF

¶

93, 96—98, 108 (summarizing William

Presumably, general interstate commerce regulations would apply during onroad training. See, e.g., Def. SUF ¶ 49 (citing 49 C.F.R. § 39.1 1(b)(2) (requiring a
person to, inter alia, read and speak English to drive a CMV)). But the fact that the
FMCSA granted Frilando his 90-day waiver specifically to “complete driver training
school” (Def. Ex. 21 at p. PLA38) strongly suggests that Frilando’s participation in onroad training would not run afoul of the FMCSRs. AAMVA commentary suggest this is
indeed the case, although whether this commentary was available by the time
Bordentown declined to accommodate Frilando is unclear. (See, e.g., P1. SUF Resp. ¶
34 (citing P1. Ex. D (AAMVA presentation titled Medical Exemption from Hearing
Requirements, Administering CDL Skills Tests to Deaf or Hard of Hearing Applicants
(2015), available at
https: / /www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/ 201 5%2OCDL%2OCoord%
20-%2OHearing%20impaired%20dhvers%20(rev)%202%909%2020 15.ppLx) (at p.9, “If
a driver fails to meet the medical hearing standard but has obtained an exemption
from that requirement from FMCSA and is capable of reading and writing in English,
that driver satisfies the English language requirement.”))).
14

25

Adams and Dennis McGee testimony that ASL interpreters cannot be used
safely during training))’3
So would the suggested accommodations constitute a sufficient workaround, permitting Bordentown to perform its essential training functions
safely? Suffice it to say that Frilando has raised sufficient (albeit disputed)
evidence “from which a jury may infer that the [proposedi accommodation is
‘reasonable on its face, i.e., ordinarily or in the run of cases

.

.

.

.

“

Halpem v.

Wake Forest Univ. Health Scis., 669 F.3d 454, 464 (4th Cir. 2012) (quoting US.
Airways, Inc. v. Bamett, 535 U.S. 391, 40 1—02, 122 S.Ct. 1516 (2002)).

Accordingly, I decline to find on summary judgment that accommodating
Frilando—for example, by incorporating an ASL interpreter into Bordentown’s
Class A—would work a fundamental alteration to Bordentown’s operations and
mission.

3. Threat to safety
Third, Frilando attacks Bordentown’s invocation of Title III’s “direct
threat” safety defense. See 42 U.S.C.

§ 12 182(b)(3); 28 C.F.R. § 36.208. Where,

as here, the entity’s mission is a safety-related one, this factor will overlap with
the “fundamental alteration” analysis. See supra.
When making an individualized assessment of a threat to safety, a public
entity must consider “[t]he nature, duration, and severity of the risk; the
probability that the potential injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures or the provision of auxiliary
aids or services will mitigate the risk.” 28 C.F.R.

§ 36.208(b) (quoted in full at

p. 15, supra); see also Donahue z’. ConsoL Rail Corp., 224 F.3d 226, 231 (3d
Cir. 2000) (“In disability discrimination cases, courts must evaluate the

Bordentown’s experts reject the feasibility and safety of the accommodations
Frilando proposes and Bordentown attacks the qualifications and methodology of
Frilando’s experts. (See, e.g., P1. Resp. ¶f 11—21) As Frilando observes, however,
Bordentown has not sought to exclude Frilando’s expert testimony under Daubed v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). (See Opp. 6) The testimony is
not facially defective, and at least for now, I will assume that some version of it can be
admitted.
15

26

significance of the risk that an employee would pose by considering four
interrelated factors: the nature of the risk, the duration of the risk, the severit
of the risk, and the probability that the potential harm will occur. If the
threatened harm is grievous, of course, even a small risk may be ‘significant.”’
(citations omitted)); Masci u. Six Flags Theme Park, Inc., No. CIV.A. 12-6585,
2014 WL 7409952, at *9_jjJ (D.N.J. Dec. 31, 2014) (applying 28 C.F.R. §
36.208(b)). Such a multifactor determination does not lend itself easily to
resolution on summary judgment.’6
Bordentown asserts that Frilando’s participation in Class A cannot be
accommodated because it would present a direct threat to the health and
safety of himself and others. Frilando, it says, “cannot hear or respond [to]
verbal commands,” and “would not be able to respond to the instructions
necessary to avoid a serious accident during yard training or while driving on a
public road.” (Br. 24) Bordentown further argues it “would have to clear the
yard” of other students during Frilando’s yard training. (It does not specifically
describe the periods of time involved, or explain why it thinks this measure is
unreasonable or would not mitigate risk.) Communicating with an ASL
interpreter while driving on public roads, says Bordentown, would entail
delayed reaction times and create distracting conditions. (Id. 25)

The facts known to Bordentown have a particular application under this factor.
In deciding whether a defendant is entitled to the “direct threat” safety defense, the
question is whether the defendant acted with objective reasonableness. “In making a
determination of objective reasonableness, the fact-finder’s responsibility does not
involve independently assessing whether it believes that Plaintiff himself posed a direct
threat. Rather, the fact-finder determines the reasonableness of Defendants’ actions
based upon [objective evidencel.” Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp.
2d 324, 346 (S.D.N.Y. 2010) (citations, internal quotation marks, and original
alterations omitted). “The existence, or nonexistence, of a significant risk must be
determined from the standpoint of the person who refuses the 11 accommodation, and
the risk assessment must be based on medical or other objective evidence” available at
the time the defendant made the decision. Bragdon v. Abbott, 524 U.S. 624, 649—53,
118 S. Ct. 2196, 2210 (1998); see also Doe, 682 F. Supp. 2d at 346. Still, for the
reasons expressed in the discussion of “after-acquired evidence,” infra, the full
panoply of facts may come into play with respect to forward-looking relief.
16

27

In support of these arguments, Bordentown cites (1) the testimony of
John Diab and Bordentown’s experts William Adams and Dennis McGee; (2)
Frilando’s own admission that it is unsafe to communicate with an ASL
interpreter while driving;’7 (3) the FMCSR that forbids the use of interpreters
during the CDL road test, see 49 C.F.R.

§

383. l33(cfl5); (4) AAMVA and FMCSA

publications on CMV dangers and causes of crashes generally; and (5) a
December 2013 report by the AAMVA that cautions: “The inability of the driver
to respond to audible commands may result in injury to the examiner or other
persons/vehicles in the immediate area.”8 (See Br. 23—26; Reply 10—11; Def.
SUF

¶1

4—16, 77—109, 116—18)

I first consider items (1) and (2). Of these items of evidence, Diab’s
communications with the various licensing authorities seem most relevant to
Bordentown’s decision. Setting aside issues of admissibility,’9 the gist of Diab’s
testimony is that representatives from the FMCSA, AAMVA, and state licensing
departments told him that no clear guidance on testing or training deaf
The accommodation Frilando requests is the presence of an ASL interpreter in
the CMV, with whom he will communicate only while not actively driving. (See Opp.
17)
18
AAMVA, CDL Testing for Hearing Impaired Applicants, A Report to the Federal
Motor Carrier Safety Administration (Dec. 2013), available at
https: / /www.fmcsa.dot.gov/ sites/fmcsa.dot.gov/files/ docs/ CDL%2oTesting%2ofor%2
OHearing%2Olmpaired%2oApplicants%20-%2OFINAL.pdf, at p. 6.
Frilando argues Diab’s testimony concerning what the authorities told him is
inadmissible hearsay. Bordentown says it is not hearsay because it is not being offered
to prove the truth of the statement. (See Reply p.1 n. 1).
17

[Tihe rule in this circuit is that hearsay statements can be
considered on a motion for summary judgment if they are
capable of being admissible at trial. In ruling on a motion
for summary judgment, the court need only determine if the
nonmoving party can produce admissible evidence
regarding a disputed issue of material fact at trial. The
proponent need only explain the admissible form that is
anticipated.
Fraternal Order of Police, Lodge I v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016)
(internal quotation marks, citations, and footnotes omitted, emphasis in original)). I
accept Bordentown’s explanation and therefore consider Diab’s testimony on this
motion.
28

individuals existed because of safety concerns and because deaf applicants
may not use ASL interpreters during the CDL test. (Def. Ex. 1
SUP

¶

¶

3 1—33; Def.

39—41, 157—63) However persuasive, this evidence is not unopposed in

the record.
Frilando cites the FMCSA’s February 1, 2013 notice of its decision to
grant hearing test exemptions (the “Notice”) (see Opp. 4, 17). Even standing
alone, certain language in this Notice raises an issue of fact as to the objective
reasonableness of rejecting Frilando—who sent Bordentown copies of his
hearing test waivers—on the basis of safety:
The Agency’s decision on these exemption applications
is based on the current medical literature and
information and the “Executive Summan’ on Hearing,
Vestibular Function and Commercial Motor Driving
Safety,” (the 2008 Evidence Report) presented to
FMCSA on August 26, 2008. The evidence report
conclusions regarding the matter of
reached
hearing loss and CMV driver safety: (1) No studies that
examined the relationship between hearing loss and
crash risk exclusively among CMV drivers were
identified; and (2) evidence from studies of the private
driver license holder population does not support the
contention that individuals with hearing impairment
are at an increased risk for a crash.
two

[Tjhere is no specific scientific data to show that
hearing impaired drivers are a higher safety’ risk than
other drivers. Also, several States already allow
hearing impaired individuals to operate commercial
vehicles in intrastate commerce and most, if not all
States allow such individuals to operate passenger
cars.
Qualification of Drivers; Application for Exemptions; National Association of the
Deaf, 78 FR 7479-01.
Bordentown proffers expert testimony. Again, it conflicts with Frilando’s
expert testimony (compare, e.g., Def. SUF
SUF

¶

¶1J

166—69, with fri. ¶j 170—94; P1.

11—21, and thus does no more than create a disputed issue.

29

As for (3), the FMCSRs do forbid the use of interpreters during the CDL
test. See 49 C.F.R.

§ 383.133(c)(5). I am not convinced, however, that this is

strong evidence of the risks posed by an accommodation requiring the
intermittent use of an ASL interpreter during CDL training. Likewise, a risk
assessment based on (4) AAMVA and FMCSA publications that discuss the
dangers inherent in driving a CMV and the causes of CMV crashes—which, by
the way, do not specifically focus on deafness or the subject of training—is too
speculative.
I accept (5), the AAMVA’s December 2013 report, as objective evidence
that Bordentown properly may have considered in making its decision. Again,
however, the FMCSA’s February 1, 2013 Notice of waiver undercuts the
AAMVA’s caution, at least insofar as successful applicants for hearing test
waivers are concerned. See Qualification of Drivers; Application for
Exemptions; National Association of the Deaf, 78 FR 7479-0 1, p. 29, supra.2°
Frilando also argues that Bordentown’s safety concerns ring hollow given
Bordentown’s lack of individualized inquiry into Frilando’s disability and needs.
(Opp. 17) There is incomplete evidence of the extent to which Bordentown failed
to specifically assess the risk of admitting Frilando, and whether Frilando’s
reticence is partly to blame. Cf Masci v. Six Flags Theme Park, Inc., No. CTV.A.
12-6585, 2014 WL 7409952, at *12 (D.N.J. Dec. 31, 2014) (finding “too many
factual deficiencies regarding the [defendant’sJ decision to exclude [the
plaintiff]” but agreeing defendant must make an individualized assessment of
whether a plaintiff meets safety requirements, and noting, “[i]f Lamusement
See also, e.g., Qualification of Drivers; Application for Exemptions; National
Association of the Deaf, 78 FR 7479-01 (Feb. 1,2013) (“Under 49 U.S.C. 31136(e) and
31315, FMCSA may grant an exemption from the safety regulations for a 2-year period
!fitfinds ‘such exemption would likely achieve a level of safety that is equivalent to, or
greater than, the level that would be achieved absent such exemption.” (emphasis
added)). But see AAMVA, CDL Testing for Hearing Impaired Applicants, A Report to the
Federal Motor Carrier Safety Administration (Dec. 2013), available at
https: / /www.fmcsa.dot.gov/ sites/fmcsa.dot.gov/files/ docs/ CDL%20Tesfing%2Ofor%2
OHearing%2Olmpaired%2oApplicants%20-%2OFINAL.pdf, at p. 13 (AAMVA
subcommittee “recommending that hearing impaired/deaf individuals not be
exempted from the hearing standards in § 391.41(b)(11)” (emphasis in original)).
20

30

park] was discriminating against [Title III plaintiff] based on the appearance of
his disability rather than any legitimate safety concerns, Defendant’s safety
defenses would appear to be irrelevant.”). See Section C.1, supra.
For all of these reasons, Bordentown’s entitlement to the safety defense
remains an issue for trial.

4. Undue financial burden
Fourth, Frilando urges me to disregard Bordentown’s argument that
employing an ASL interpreter would be unduly burdensome financially. That
undue burden defense requires consideration of, inter alia, the cost of the
accommodations requested, the entity’s finances, and the effect the
accommodation would have on expenses, resources, and overall operation.21
Bordentown says these factors favor a complete defense in this case.
John Diab estimates that the cost of implementing two ASL interpreters would
run between $60,000 and $150,000—figures “approximately fifteen to thirty-

seven times greater than the $4,000 tuition” for a Class A student. (Def. Ex. 1,

¶ 37) He says that in reality, the costs would be even higher because ASL
interpreters would take up seats in training vehicles normally occupied by
paying students. Other safety measures, such as clearing the yard of other
students while Frilando was being trained, would also cost time and money.
(Br. 20; Def. SUF

¶11 91, lii)

Diab places these figures in the perspective of Bordentown’s annual
revenue of approximately $10 million company-wide, with $3 million coming
from the Linden location. (Id.

¶ 39) He further attests that Bordentown operates

in a “low margin industn’” and realizes a company-wide annual net profit of
“only $400,000 (prior to taxes and capital expenditures, such as the cost of

See 42 U.S.C. § 12182(b)(2)(A)(iii) and 28 C.F.R. § 36.303(a), quoted in full at
pp. 13—14, supra; see also N.J.A.C. 12:13-14.11 (NJLAD provision requiring public
accommodations to make reasonable accommodations to the limitations of a person
without a disability unless it “demonstrates that making the accommodations would
impose an undue burden on its operation.”).
21

31

purchasing a new cab or trailer for training), which is reinvested into the
company.” (Id. ¶ 40) Bordentown argues that it should not be forced to
implement an accommodation that would “consume between 40% and 107% of
the Linden facility’s operating profit, 15% to 37.5% of Bordentown’s companywide operating profit, and [that] would cost between 300 and 750 times
Bordentown’s average $200 per student profit from the CDL training program.”
(Br. 19)
Bordentown’s cost evidence is by no means unpersuasive. Other courts,
however, have indicated that demonstrating undue burden is a “high bar”.
Enyart u. Nat’l Conference of Bar Examiners, Inc., 823 F. Supp. 2d 995, 1014

(N.D. Cal. 2011) (where cost of accommodating exam applicant would be
roughly $5,000 but could be spread among or passed on to other parties,
accommodation was not an undue burden); cf, e.g., Rawthn v. Am. Bd. of
Pediatrics, 985 F. Supp. 2d 636, 656 (E.D. Pa. 2013) (cost of developing new
board exam to accommodate plaintiffs disability would impose undue burden
where trial evidence showed each question took two years to develop and cost
$3,500, with entire exam costing $1.2 million), aff’d, 582 F. Appx 114 (3d Cir.
2014); Roberts v. KinderCare Learning Centers, Inc., 896 F. Supp. 921 (D. Minn.
1995) (net loss of $95 per week to accommodate disabled child at a daycare
operating “on a shoestring budget” and whose parent company had recently
emerged from bankruptcy would impose an undue financial burden).
Frilando makes two arguments as to why Bordentown has not met this
high bar.
a.

There are disputed issues of fact

Bordentown’s estimates, says Frilando, rely on back-of-the-envelope
calculations and outdated data. (Opp. 14—15) Specifically, Frilando points to

testimony in which Diab admitted that he based his calculations on the cost of
hiring one ASL interpreter for one day (for Bordentown’s forklift training
program) in 2014. (Id. 14 (quoting Def. Ex. 2 at 209—2 1 1)) Bordentown

responds that Frilando has failed to put forth any contrary evidence that the

32

accommodation would not result in “significant difficulty or expense.” 28 C.F.R.
36.303.

(Opp.

6—7) And of course it is true that courts will grant summary

judgment on the issue of undue burden where the facts are undisputed. See,
e.g., Schlecht a Lockheed Martin Coqi., No. 1 1-CV-03072-RM-BNB, 2014 WL
4819006, at *5 (D. Cob. Sept. 29, 2014) (“Defendant is entitled to summary
judgment because it is undisputed with any competent evidence that
accommodating Plaintiffs requests would have posed an undue hardship.”).
Still, I am not required to ignore the quality of Bordentown’s estimates,
particularly on an issue as to which it carries the burden.22
The U.S. Court of Appeals for the Third Circuit has not addressed what the
burden of production and persuasion is for the undue burden defense in the context
of a Title III claim, but in the Title I context, which is informative, the court has
adopted the U.S. Court of Appeals for the Second Circuit’s middle-of-the-road
approach:
22

First, the plaintiff bears the burden of proving that she is
otherwise qualified; if an accommodation is needed, the
plaintiff must show, as part of her burden of persuasion,
that an effective accommodation exists that would render
her othenvise qualified. On the issue of reasonable
accommodation, the plaintiff bears only the burden of
identifying an accommodation, the costs of which, facially,
do not clearly exceed its benefits. These two requirements
placed on the plaintiff will permit district courts to grant
sumrnan’ judgments for defendants in cases in which the
plaintiffs proposal is either clearly ineffective or
outlandishly costly.
Walton v. Mental HealthAss’n. of Se. Pennsylvania, 168 F.3d 661, 670 (3d Cir. 1999)
(emphasis added) (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 139 (2d
Cir. 1995) (assessing a Rehabilitation Act employment discrimination claim)). The
Third Circuit continued:
Following a prima facie showing by the plaintiff that a
reasonable accommodation exists which would make her
qualified, the burden shifts to the defendant to prove either
that the accommodation is unreasonable or that it creates an
undue hardship for the defendant.
Walton, 168 F.3d at 670 (emphasis added); see also Borkowski, 63 F.3d at 138 (“[Tjhe
defendant’s burden of persuading the factfmder that the plaintiffs proposed
accommodation is unreasonable merges, in effect, with its burden of showing, as an
affirmative defense, that the proposed accommodation would cause it to suffer an
undue hardship.”); IT. v. Dumont Pub. Sch., 438 N.J. Super. 241, 264, 103 A.3d 269,
282 (App. Div. 2014) (looking to the Rehabilitation Act and ADA to interpret the
33

At any rate, Frilando does raise specific objections to Bordentown’s
assumptions and calculations. For example, Bordentown assumes that
Frilando has demanded two ASL interpreters at all times. (See Br. 17, 19; Def.
SUP

199) But Bordentown bases this on Frilando’s testimony that ASL

¶

interpreters “need to work as a team because of fatigue.” (Def.

¶

199 (quoting

Def. Ex. 24 at 18:21-19:9)) This testimony, says Frilando, concerned only “his
impression of why two interpreters are needed at a deposition.” (P1. Resp.

¶

199

(emphasis in original)) The implication is that a single ASL interpreter might
suffice to accommodate him in Class A, cutting Bordentown’s estimated costs
in half.
Bordentown’s calculation also assumes that Frilando needs an ASL
interpreter throughout all three phases of Class A. (See Def. Ex. 2 at 209—211)
The record shows that this is not necessarily the case. Bordentown describes
the “phase one” classroom portion of its CDL course as using “a combination of
videos, computer presentations, and lectures that focus on the subjects
covered by the written CDL knowledge test.” (DeL SUP

¶

73) “Phase one”

strikes me as being amenable to “auxiliary aids” less costly than an on-duty

NJLAD and explaining that once a plaintiff establishes a prima facie case under any of
those statutes, “[tjhe defendant may argue as an affirmative defense that the
requested accommodation created an undue burden on the defendant.”).
Here, where Title III’s regulations specifically impose a duty on public
accommodations to “take those steps that may be necessary” to provide auxiliary aids
such as ASL interpreters to disabled patrons, 28 C.F.R. § 36.303(a), I do not think the
costs of the accommodation Frilando has requested—the provision of one or two ASL
interpreters—facially, can be said to exceed the benefits. Cf Borkowski, 63 F.3d at
139 (“jWjhile the plaintiff could meet her burden of production by identifying an
accommodation that facially achieves a rough proportionality between costs and
benefits, an employer seeking to meet its burden of persuasion on reasonable
accommodation and undue hardship must undertake a more refined analysis. And it
must analyze the hardship sought to be imposed through the lens of the factors listed
in the regulations
“); id. at 142 (“The proposed accommodation plainly falls within
the range of accommodations that may, in a general sense, be considered reasonable
there is nothing inherently unreasonable or
in light of their costs and benefits.
undue in the burden that an employer would assume by providing an assistant to an
employee with disabilities.”). Therefore, under the reasoning of Walton and Borkowski,
Bordentown must prove undue burden as an affirmative defense.
.

.

.

34

ASL interpreter.23 Frilando himself testified that to get through Class A, he
would need films and videos to be closed-captioned, not simultaneously
translated, and that an ASL interpreter would be required only “as we’re going
on the road

.“

(Def. Ex. 3 at 200:20-20 1:10)

Moreover, as Frilando points out, Bordentown bases its estimate on the
cost of an ASL interpreter it hired for one day in 2014. (See Def. Ex. 2 at 209—
211) There is no evidence of current rates for a longer-term job (or, I suppose,
for a staff interpreter, if justified by the amount of work). And, as stated above,
the interpreter’s hours could perhaps be limited to certain critical phases of the
training. In short, I am not satisfied that the evidence of undue burden is so
clear and one-sided as to require summary judgment for Bordentown. See US
E.E.O.C. v. PlacerARC, 114 F. Supp. 3d 1048, 1059 (E.D. CaL 2015) (declining
to find undue burden on summary judgment where “the costs associated with
an interpreter [we]re purely speculative because the extent of interpretation
required for reasonable accommodation are
and written communications .
.

.

disputed.”).
K

The after-acquired evidence doctrine

That being the case, I devote less attention to Frilando’s alternative
argument that Bordentown’s cost-based argument is based on “after-acquired
evidence,” which I should not consider. John Diab admitted that Bordentown
The regulations require Bordentown to consider alternative auxiliary aids to the
extent it believes a full-time ASL interpreter would result in undue expense:
If provision of a particular auxiliary aid or service by a
public accommodation would result in a fundamental
alteration in the nature of the goods, services, facilities,
privileges, advantages, or accommodations being offered or
in an undue burden, i.e., significant difficulty or expense,
the public accommodation shall pro vide an alternative
auxiliary aid or service, if one exists, that would not result in
an alteration or such burden but would nevertheless ensure
that, to the maximum extent possible, individuals with
disabilities receive the goods, services, facilities, privileges,
advantages, or accommodations offered by the public
accommodation.

23

28 C.F.R.

§ 36.303(h).
35

never considered cost until after it made the decision to decline to
accommodate Frilando.

(Opp.

14 (citing P1. Resp. ¶ 1 12))21

The rule against using after-acquired evidence is based on the
commonsense principle that discriminatory intent cannot be rebutted by facts
of which the alleged discriminator was unaware. See generally Bowers v. Nat’l
Collegiate AthleticAss’n, 563 F. Supp. 2d 508, 527 (D.N.J. 2008); see also
Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 537 (3d Cir. 2007)
(defendants alleged to have unlawfully discriminated against plaintiff could not
have been motivated by evidence of plaintiffs drug abuse unknown to them at
the time the discrimination occurred), amended on reh’g (Mar. 8, 2007)).
Still, most of the relief requested here is prospective, and Bordentown
makes a compelling logical point: “Because an accommodation that creates an
undue burden is never a reasonable accommodation, the ADA and LAD would
not require Bordentown to provide any unduly burdensome accommodation
irrespective of the outcome of this litigation.” (Reply 8 n.7) I agree that,
practically speaking, the court may decline to order a defendant to make an
unduly burdensome accommodation, even if its original refusal to make it was
unjustified based on the facts then in its possession. Cf MeKennon v. Nashville
Banner Pub. Cc., 513 U.S. 352, 360—61, 115 S. Ct. 879 (1995) (although afteracquired evidence will not shield defendant from liability for age discrimination
under ADEA, it may “bear[1 on the specific remedy to be ordered.”); Cicchetti

t.’.

Moths County Sheriffs Office, 194 N.J. 563, 589, 947 A.2d 626 (2008)
(recognizing that after-acquired evidence is not relevant to the question of
liability under NJLAD but permitting such evidence to limit economic damages,
although not non-economic damages that “cannot in fairness be limited or
barred” given the Legislative purposes of the NJLAD).
So it goes too far to say that after-acquired evidence is out of the case.
For present purposes, I need not go farther than that.
Diab’s testimony makes it clear that Bordentown never considered issues of
cost prior to refusing to accommodate Frilando in March of 2015. (See Ex. 2 at
2 10: 10-211: 23)
24

36

5. Frilando’s medical qualffication to participate
Finally, Bordentown contends that, even apart from his hearing
disability, Frilando was medically unqualified to enroll in Class A. At the time
Bordentown made its allegedly discriminatory decision, Frilando had been
medically cleared only by Dr. Marino, who was not a certified FMCSA examiner.
(Br. 28) Frilando did not obtain his second medical certificate from Dr. Yu, who
was FMCSA-certified, until July 30, 2015—three months after Frilando filed
this action. (Id.; see Def. SUF

¶jJ

124—128)

Even setting aside the after-acquired evidence doctrine, I would still find
that disputed issues of material fact preclude summary judgment on this issue.
Bordentown’s Class A lesson plan and Diab’s testimony both demonstrate that
Bordentown permits students to enroll first and undergo a physical
examination with a FMCSA-certified examiner thereafter. (See Def. Ex. 2 at
34:17—35:24; Def. Ex. 17 p.3) Thus, a medical certificate has historically been a
condition, but not a pre-condition, of enrollment. And for the reasons
expressed above, Bordentown’s challenges to the adequacy of Dr. Yu’s second
medical certificate raise factual issues of their own. See pp. 5—6, supra.
VI. CONCLUSION

For the foregoing reasons, Bordentown’s motion for summary judgment
is DENIED.

4

KEVIN MCNULTY
United States District Jue

DATED: July 27, 2017

37