Hensley v. United Parcel Service, Inc.

Filing 19

MEMORANDUM DECISION AND ORDER denying without prejudice 12 Motion for Summary Judgment. This matter is stayed pending the resolution of Plaintiff's administrative appeal with the Department of Transportation. Within te n days after the conclusion of Plaintiff's DOT administrative appeal, Plaintiff shall file a notice with the Court detailing the results thereof. Signed by District Judge Martin Reidinger on 03/07/14. (emw) Modified text on 3/7/2014 (emw).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13-cv-101-MR-DSC

MICHAEL D. HENSLEY,
Plaintiff,
vs.
UNITED PARCEL SERVICE, INC.,
Defendant.

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MEMORANDUM
DECISION AND ORDER

THIS MATTER is before the Court on the Defendant’s Motion for
Summary Judgment. [Doc. 12]. For the reasons stated herein, the Court
will stay this matter pending the resolution of Plaintiff’s underlying
administrative appeal.
BRIEF FACTUAL AND PROCEDURAL HISTORY
In September, 2007, Plaintiff Michael D. Hensley (“Hensley”) became
a full-time package delivery driver for Defendant United Parcel Service,
Inc., (“UPS”). [Doc. 13-1 at 8 (26)]. UPS requires all of its package delivery
drivers to obtain a Federal Motor Carrier Safety Regulation Medical
Examiner’s Certificate (commonly known as a “DOT card”), before

operating its vehicles. Until 2012, Hensley had passed his prior medical
exams in order to obtain his DOT cards.
In June of 2012, Hensley discussed with his family doctor “having
problems being sleepy.”

[Doc. 13-1 at 13 (48)].

On June 13, 2012,

Hensley was seen by his family doctor who referred him to a local sleep
study clinic. [Id. at 15 (55)].

On this same date, June 13, 2012, Hensley

went to the local UPS-required medical clinic, Sisters of Mercy Urgent Care
center, and obtained his DOT card from a physician there, Dr. Gilpin. [Doc.
15-17 at 1 to 7]. Dr. Gilpin qualified Hensley for an unrestricted two-year
DOT card. [Id. at 7].
Between June 13, 2012, and July 31, 2012, Hensley visited the sleep
study clinic for a Polysomnogram evaluation and a Multiple Sleep Latency
Test.

[Doc. 13-1 at 17 (65); (68)].

On July 31, 2012, Hensley was

informed by Dr. Buechler, the sleep study clinic director, that he was
diagnosed with narcolepsy with cataplexy. [Id. at 19 (71)].

Hensley was

put on a regimen of prescription medications to prevent excessive daytime
somnolence. [Id. at 22 (85)]. Hensley informed UPS of his diagnosis.
On August 1, 2012, Hensley, accompanied by a UPS health and
safety supervisor, drove to the Sisters of Mercy clinic so that Hensley could

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be examined again. [Id. at 23 (87)].

Hensley provided his narcolepsy

information to the receptionist and, after about 30-45 minutes, a nurse
called Hensley’s name. Hensley spoke to the nurse who provided him with
a new DOT card signed by a different doctor, Dr. Somani. [Doc. 15-18]. Dr.
Somani had contacted Dr. Buechler at the sleep study clinic about
Hensley’s narcolepsy diagnosis. Dr. Buechler responded, in part, by
providing Dr. Somani a letter dated August 1, 2012 [Doc. 15-1 at 1-2],
explaining Hensley had no job restrictions. [Doc. 13-1 at 24 (92)]. Without
physically examining Hensley, Dr. Somani reissued him a DOT card but
reduced Dr. Gilpin’s two-year validation to one year. [Doc. 15-18].
Following his visit to Sisters of Mercy on August 1, 2012, Hensley
returned to work with his reissued DOT card and presented it to the
manager of the Asheville UPS Center.

[Doc. 13-1 at 24 (93)].

The

manager told Hensley he would not be permitted to drive until he could
“figure everything out.” [Doc. 13-1 at 25 (94)].

On August 28, 2012, after

Hensley had finished his early morning shift as a presorter (a non-driving
assignment at UPS), the manager approached him and gave him a “sticky”
note that instructed him to return to Sisters of Mercy for another DOT
exam. This exam was scheduled by UPS for Hensley. Hensley was

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directed to appear at the Sisters of Mercy clinic at 11:00 a.m. that same
day (August 28, 2012) specifically to see a third doctor named Dr. Lawson.
Hensley appeared at the clinic as instructed and surreptitiously recorded
the verbal discussions that occurred during his examination performed by
Dr. Lawson. [Doc. 13-1 at 29 (111)]. Dr. Lawson refused to issue Hensley
a DOT card instead writing on Hensley’s DOT card application that he did
not meet standards “due to diagnosis of narcolepsy.” [Doc. 13-1 at 65].
On October 3, 2012, Hensley returned to his family doctor who
examined Hensley and who found him eligible to receive a DOT card.
[Doc. 13-1 at 70 to 78]. On October 7, 2012, Hensley returned to the sleep
study clinic for a Maintenance and Wakefulness Test (“MWT”). Sleep study
clinic director Dr. Buechler “determined [Hensley] had a normal MWT and
he was easily able to maintain wakefulness without any signs of
narcolepsy. His sleepiness is well treated to the point of not being visible on
this test.” [Doc. 15-4]. Hensley returned to Sisters of Mercy on October 29,
2012, for a re-evaluation. He was again examined by Dr. Lawson who
again denied him a DOT card. [Doc. 13-1 at 79 to 85]. At no time did Dr.
Lawson contact Dr. Buechler.

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Hensley, acting pro se, contacted the EEOC. On October 24, 2012,
Hensley completed and submitted an “Equal Employment Opportunity
Commission Intake Questionnaire.” [Doc. 15-12 at 19 to 24]. At some
point after October 24, 2012, Hensley was contacted by an investigator
employed by the EEOC.

[Doc. 15-12 at 2].

Hensley and the EEOC

investigator discussed in detail the events surrounding his denial of a DOT
card by Dr. Lawson and what he believed to be UPS’s dishonesty and
discrimination against him. [Id.]. On December 5, 2012, the EEOC mailed
to Hensley a “Dismissal and Notice of Rights” letter. [Doc. 15-12 at 17 to
18]. This letter informed Hensley that his EEOC charge was dismissed and
that he had 90 days from his receipt of such letter to file a lawsuit in state or
federal court based on his discrimination charge. [Id.].
Hensley filed suit in North Carolina state court on March 6, 2013,
alleging two claims under the Americans with Disabilities Act, 42 U.S.C. §
12101 et seq., as amended by the ADA Amendments Act of 2008,
Pub.L.No. 110-325, 122 Stat. 3553 (Sept. 25, 2008) (herein the “ADA”).
[Doc. 1-2].

As to Hensley’s Complaint, he asserts first that he was a

“qualified individual” within the meaning of the ADA and he was “regarded
as” a person with a disability by UPS who discriminated against him on the

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basis of this perceived disability.

[Doc. 1-2 at ¶¶ 27 to 31].

Hensley

acknowledges in his Complaint:
5.
Plaintiff is aware of the provisions of 49 C.F.R. § 391.47
entitled, "Resolution of conflicts of medical examinations," and
is attempting to utilize these administrative procedures;
however, due to the 90 day limitation in the United States Equal
Employment Opportunity Commission's Notice of Suit Rights,
plaintiff is required to file this action prior to the exhaustion of
those administrative procedures.
[Id. at 4, ¶5].
Second, Hensley alleges in the alternative that he was a person with
a disability who UPS did not reasonably accommodate. [Doc. 1-2 at ¶¶ 32
to 34]. Following the discovery period, the parties voluntarily dismissed
Hensley’s “disabled” alternative claim by stipulation and Hensley is
proceeding solely on his “regarded as” claim. [Doc. 11]. UPS removed
Hensley’s action to this Court and filed its Answer April 17, 2013. [Doc. 3].
On December 16, 2013, UPS filed its Motion for Summary Judgment
[Doc.12], and accompanying Memorandum of Law.

[Doc. 12-1].

On

January 9, 2014, Hensley filed his Memorandum of Law in Opposition to
USP’s summary judgment motion.

[Doc. 15].

January 24, 2014. [Doc. 17].

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UPS filed it Reply on

DISCUSSION
The ADA prohibits discrimination against a qualified individual on the
basis of disability. 42 U.S.C. § 12112(a). To establish disability
discrimination, Hensley must demonstrate that: (1) he had a disability as
defined in the ADA; (2) he was a “qualified individual,” which entails being
able to perform the essential functions of his job; and (3) UPS took an
adverse action against him on account of his disability. Young v. United
Parcel Service, Inc., 707 F.3d 437, 443 (4th Cir. 2013). The ADA provides
three bases for establishing the first element (the existence of a disability):
“(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual; (B) a record of such impairment; or
(C) being regarded as having such impairment.” 42 U.S.C. § 12102(1);
Young, 707 F.3d at 443. Hensley seeks relief under this third alternative.
His “regarded as” claim under the ADA “includes the circumstance when
the employer ‘mistakenly believes that an actual, non-limiting impairment
substantially limits one or more major life activities.” Young, 707 F.3d at
443 (citations omitted). The employer “must believe ... that [an individual]
has a substantially limiting impairment when, in fact, the impairment is not
so limiting.” Id. at 444 (citations omitted). Where an employee relies on a

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“regarded as” disabled theory, the Court must focus “on the reactions and
perceptions of the employer's decisionmakers.” Id.
Congress has given the Secretary of Transportation the power to
prescribe the qualifications for drivers of commercial motor carriers. 49
U.S.C. § 31102(b)(1). Myers v. J.B. Hunt Transport, Inc., No. 1:05-cv-717,
2006 WL 3479001 (M.D.N.C. 2006). Therefore, the question of whether
Hensley’s physical condition allows him to drive delivery trucks for UPS
falls within the province of the DOT. The DOT, through the Federal Motor
Carrier Safety Administration, has promulgated the “Federal Motor Carrier
Safety Regulations,” which establish the “minimum qualifications for
persons who drive commercial motor vehicles as, for, or on behalf of motor
carriers[.]” 49 C.F.R. § 391.1; Myers, slip op. at 3. Under these regulations,
a “medical examiner is required to certify that the driver does not have any
physical, mental, or organic condition that might affect the driver's ability to
operate a commercial motor vehicle safely” in order to obtain a DOT card.
49 C.F.R. § 391.43(f).
The DOT regulations also provide a procedure by which an employee
may challenge the denial of a DOT card by the employer's medical
provider. The employee may appeal disputes between the employer's

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medical provider and a medical provider selected by the employee to the
DOT Director of the Office of Motor Carrier Research and Standards. 49
C.F.R. § 391.47. As one component of its summary judgment motion, UPS
asserts that it is entitled to judgment as a matter of law because, aside from
the merits of Hensley’s “regarded as” claim, his Complaint should be
dismissed based upon his failure to exhaust his administrative remedies
through DOT. In particular, UPS argues:
The problem for Plaintiff is that an ADA lawsuit is not the
proper forum to resolve a dispute about whether someone with
narcolepsy with cataplexy should be DOT qualified. Rather, the
DOT has its own internal administrative review mechanism for
resolving physician disagreement about a driver’s qualification
to hold a DOT Card. See 49 C.F.R. § 391.47[.]
[Doc. 12-1 at 16]. In support of its position, UPS cites to three cases it
contends require the dismissal of this matter, Myers, slip op. at 4; Harris v.
P.A.M. Transport, Inc., 339 F.3d 635, 638 (8th Cir. 2003); and Wilkie v. The
Golub Corp., No. 1:11-cv-3086, 2013 WL 5354531, slip op. at 4-5
(N.D.N.Y. Sept. 24, 2013). [Id. at 17; Doc. 17 at 6]. Hensley acknowledges
in his Complaint:
5.
Plaintiff is aware of the provisions of 49 C.F.R. § 391.47
entitled, "Resolution of conflicts of medical examinations," and
is attempting to utilize these administrative procedures;
however, due to the 90 day limitation in the United States Equal
Employment Opportunity Commission's Notice of Suit Rights,
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plaintiff is required to file this action prior to the exhaustion of
those administrative procedures.
[Id. at 4, ¶5].
At the hearing convened by the Court on February 28, 2014, Hensley
contended that, initially, he believed he faced a Hobson’s choice upon his
receipt of the EEOC’s “Dismissal and Notice of Rights” letter: He either
could have filed this action within the ninety day limitations period but
before obtaining an administrative appeal decision about the conflicting
medical examinations, or he could have pursued his administrative appeal
to finality and foregone his right to sue. Hensley, however, faced no such
choice, as demonstrated by the fact that he pursued both.
As a part of the DOT appeal process regarding disputed medical
evaluations, 49 C.F.R. § 391.47(b)(3) requires the parties to agree upon a
neutral physician to evaluate Hensley before submitting the matter for
appeal. During the February 28, 2014, hearing, Hensley explained that
UPS had failed to agree to the selection of such a neutral physician.
Because Hensley is a union member at UPS, his collective bargaining
agreement requires him to arbitrate disputes with UPS. The arbitration as
to the appointment of the neutral physician remains pending. Only upon
the completion of that proceeding can the DOT administrative proceeding
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be concluded. At the hearing both parties agreed that, depending upon the
result of Hensley’s administrative appeal, this civil matter may become
moot.
None of the cases cited by UPS supports its position that this matter
must be dismissed due to Hensley’s alleged failure to exhaust his
administrative remedy.

Myers, Harris, and Wilkie all are inapposite

because the plaintiffs therein never attempted to invoke the DOT
administrative

appeal

procedure

to

resolve

objectionable

medical

evaluations before filing suit. Myers, slip op. at 4; Harris, 339 F.3d at 638;
and, Wilkie, slip op. at 3. In the present matter, Hensley has begun the
administrative appeal effort. The administrative appeal process, however,
did not conclude before Hensley’s right to sue time period expired. In fact,
Hensley’s administrative appeal has not concluded at this this time. Given
that the “DOT is charged with and is much better equipped to handle
resolution of disputes over a driver's medical qualifications and can do so
far more expertly and efficiently than a reviewing court[,] Harris, 339 F.3d at
638, the Court concludes that the DOT should be permitted to do so here.
In order to do so this civil action must be stayed. Likewise, the other issues
raised by the Motion for Summary Judgment are not ripe for determination,

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and thus the balance of the Motion will be denied without prejudice to
renewal after the conclusion of the administrative appeal.
ORDER
IT IS, THEREFORE, ORDERED that this matter is stayed pending
the resolution of Plaintiff’s administrative appeal with the Department of
Transportation. Within ten days after the conclusion of Plaintiff’s DOT
administrative appeal, Plaintiff shall file a notice with the Court detailing the
results thereof.
IT IS FURTHER ORDERED that except as heretofore addressed in
part, the Defendant’s Motion for Summary Judgment [Doc. 12] is DENIED
without prejudice.
The Clerk is directed to administratively close this file pending
resolution of the administrative proceeding.
IT IS SO ORDERED.
Signed: March 7, 2014

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