Harry Brockmeier, Jr. v. Greater Dayton Regional Transit Authority

Filing 19

REPORT AND RECOMMENDATIONS re #9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Greater Dayton Regional Transit Authority. Objections to R&R due by 7/19/2013. IT IS THEREFORE RECOMMENDED THAT: 1. Defendants motion to dismiss (doc. #9 ) be GRANTED; and 2. This case be CLOSED. Signed by Magistrate Judge Michael J. Newman on 7/2/2013. (kf) Modified on 7/3/2013 to correct text (kf).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
HARRY C. BROCKMEIER, JR.,

:

Case No. 3:12-CV-327

:

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Plaintiff,
v.
GREATER DAYTON REGIONAL
TRANSIT AUTHORITY,
Defendant.

:

:

REPORT AND RECOMMENDATION1

This is an employment discrimination case properly and timely removed from the
Montgomery County, Ohio Common Pleas Court. See doc 2; 28 U.S.C. §§ 1331, 1441(a).
Plaintiff, Harry Brockmeier, Jr., a bus driver, claims his employer, Defendant Greater Dayton
Regional Transit Authority (“GDRTA”), violated the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq., and the corollary provision of Ohio law,2 when GDRTA did not allow
him to drive a bus for almost two years after it received a physician’s report -- stating that he did
not meet Department of Transportation (“DOT”) medical certification guidelines for operation of
a commercial vehicle due to symptoms associated with his multiple sclerosis (“MS”).
This matter is now before the Court upon GDRTA’s Fed. R. Civ. P. 12(b)(6) motion to
dismiss (doc. 9), Plaintiff’s opposition memorandum (doc. 12), and GDRTA’s reply (doc. 14).

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.
In addition to his ADA claim, Plaintiff alleges that GDRTA violated Ohio’s discrimination statute, Ohio
Revised Code § 4112.02(A), by discriminating against him on the basis of his disability. Doc. 2 at
PageID 25-26. Ohio’s statute employs the same analysis as the ADA. Kleiber v. Honda of Am. Mfg., 485
F.3d 862, 872 (6th Cir. 2007). Accordingly, the analysis in this Report and Recommendation, infra,
applies both to Plaintiff’s ADA and state law disability claim.

2

Having carefully reviewed Plaintiff’s complaint (doc. 2) and both parties’ memoranda, the Court
recommends that this case be dismissed.3 This is an unusual ADA claim in that Plaintiff does
not seek an accommodation or challenge the reasonableness of the accommodation his employer
offered him; rather, Plaintiff claims he should have been permitted to continue driving a bus,
despite the fact that he failed a medical exam. To that end, the Court notes that this a highly
regulated area of the law -- likely on account of the significant safety concerns involved with
public bus drivers and their transportation of citizens of the community. See Sw. Ohio Reg’l
Transit Auth. v. Amalgamated Transit Union, Local 627, 742 N.E. 2d 630, 635 (Ohio 2001)
(recognizing “the duty of a common carrier of passengers is to exercise the highest degree of
care for the safety of its passengers,” and noting that Ohio adopted the federal DOT safety
standards in light of this heightened duty of care). The Court is also mindful that cases,
whenever possible, should not be decided at the motion to dismiss stage. See Antioch Litig. Trust
v. McDermott Will & Emery LLP, 738 F. Supp. 2d 758, 764 (S.D. Ohio 2010). This, however, is
the atypical case where, it is respectfully suggested, dismissal is appropriate because of

3

In addition to seeking a dismissal of Plaintiff’s complaint under Fed. R. Civ. P. 12(b)(6) for failing to
state a claim, GDRTA contends this case should be dismissed under Fed. R. Civ. P. 12(b)(1) for a lack of
subject matter jurisdiction because Plaintiff failed to exhaust his administrative remedies. See doc. 9 at
PageID 56-58. Exhaustion of administrative remedies is generally not a jurisdictional requirement,
however. Cf. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 400-03 (6th Cir. 2008) (finding the
exhaustion of EEOC procedures is not a jurisdictional prerequisite to bringing a Title VII employment
discrimination claim in federal court). Further, the Sixth Circuit, when presented with the same issue, did
not find it lacked subject matter jurisdiction. See King v. Mrs. Grissom’s Salads, Inc., No. 98-5258, 1999
U.S. App. LEXIS 17944, 1999 WL 552512 (6th Cir. July 22, 1999). Accordingly, the Court reviews this
argument under the Fed. R. Civ. P. 12(b)(6) failure-to-state-a-claim standard. While courts generally
cannot consider matters outside the pleadings in ruling on a Fed. R. Civ. P. 12(b)(6) motion without
converting it into a motion for summary judgment, see Fed. R. Civ. P. 12(d), there is an exception for
documents referenced to, or cited in, a complaint and central to the claims therein. Bassett v. Nat’l
Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). Accordingly, the Court may properly
consider the following documents which were attached as exhibits to GDRTA’s motion, referenced in the
complaint, and are central to the claims therein: Dr. Valle’s May 2010 FMLA certification (doc. 9-1), see
doc. 2 ¶ 16; Dr. Wanat’s June 2010 examination report (doc. 9-2), see id. ¶¶ 18-19; the June 10, 2010
letter from GDRTA to Plaintiff (doc. 9-3), see id. ¶ 20; and Dr. McClure’s June 2010 report (doc. 9-4),
see id. ¶ 22.
2

Plaintiff’s failure to exhaust the available administrative appeals process prior to filing this suit;
and also because of Plaintiff’s inability to perform the essential functions of his bus driver job, as
evidenced by his failure of the DOT medical exam.
I.
Plaintiff’s complaint provides that he has been employed as a bus driver for GDRTA
since September 15, 2003. Complaint (doc. 2) ¶ 9. Plaintiff suffers from MS, which he typically
keeps under control with medication, but nonetheless sometimes suffers from flare-ups. Id. ¶¶
10-12.

During his employment, Plaintiff has applied for, and been granted, leave under the

Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., for a number of absences
due to his sporadic flare-ups.4 Id.
In May 2010, Plaintiff filed an application for FMLA leave related to his MS. Id. ¶ 15.
Plaintiff also provided GDRTA with a medical certification from neurologist Dr. Michael Valle
in support of his FMLA request. Id. ¶ 16; doc. 9-1. Dr. Valle reported that Plaintiff’s MS flareup symptoms (including fatigue, muscle pain, and spasms) prevent him from working
approximately two days each week. Doc. 9-1 at PageID 62.
Thereafter, GDRTA advised Plaintiff it “had safety and liability concerns about [his]
ability to perform [his] job duties,” and requested Plaintiff undergo a “Fitness for Duty”
examination. Doc. 2 ¶ 17. Dr. Robert Wanat, who conducted this exam on May 27, 2010,
concluded that Plaintiff did not meet the DOT medical certification guidelines for operation of a
commercial vehicle due to his MS symptoms.5 Doc. 2 ¶¶ 18-19; doc. 9-2. Dr. Wanat attached

4

No FMLA discrimination or retaliation claims are pled in Plaintiff’s complaint. See doc. 2 at PageID
25-26. Cf. Stevens v. Coach U.S.A., 386 F. Supp. 2d 55, 65 (D. Conn. 2005).
5
As both sides make clear in their memoranda, the buses operated by GDRTA transport more than 16
passengers and thus qualify as commercial motor vehicles (“CMVs”). See 49 C.F.R. § 383.5. To drive a
CMV, a person must have a commercial driver license (“CDL”). See 49 C.F.R. §§ 383.1, 383.23(a),
391.11(b)(5). CDL regulations instruct that a driver is “disqualified” if it is determined that he or she
3

selections from The DOT Medical Examination: A Guide to Commercial Drivers’ Medical
Certification, by Natalie Hartenbaum, M.D. to his report. See doc. 9-2 at PageID 66-71.
On June 10, 2010, GDRTA sent a letter to Plaintiff informing him that, because he failed
the DOT examination, he could no longer drive for GDRTA and had to take an unpaid leave of
absence. Doc. 2 ¶¶ 20, 23; doc. 9-3. Plaintiff was on unpaid sick leave for forty-seven weeks.
Doc. 2 ¶ 23.
Plaintiff subsequently submitted an “independent medical evaluation for FMLA,” dated
June 7, 2010, from Dr. Dennis McClure. Doc. 2 ¶ 22; doc. 9-4. Although Dr. McClure
estimated that Plaintiff would miss work due to flare-ups two days per month, he determined that
Plaintiff could nonetheless “perform his job functions due to his condition.” Id.
Further, Plaintiff alleges, he submitted to GDRTA “a number of physicians’ certificates
determining that he was able to return to work” during his unpaid leave, but was not allowed to
return to work. Doc. 2 ¶¶ 24. Notably, however, Plaintiff does not allege that any of these
reports specifically opined whether or not he met the DOT Medical Certification guidelines for
operating a commercial motor vehicle. See id. Further, Plaintiff does not allege that he attempted
to resolve the conflicting opinions through the established administrative procedure. See id.
Plaintiff returned to work as a GDRTA bus driver in April 2012.6 Id. ¶ 24.
II.
While Rule 8(a) requires a pleading to contain “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), “[t]o survive a motion to

does not meet the DOT medical certification requirements. 49 C.F.R. § 383.5. Further, the CDL
regulations state that “[a]n employer must not knowingly allow, require, permit, or authorize” a
disqualified driver to operate a CMV. 49 C.F.R. §§ 383.37(b), 383.51(2).
6
Plaintiff does not state why he was allowed to return to work in April 2012. However, GDRTA claims
Plaintiff returned to work once he passed a DOT medical examination. See doc. 9 at PageID 46. Plaintiff
does not dispute this fact in his opposition memorandum. See doc. 12.
4

dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations
omitted). The Court must “construe the complaint in the light most favorable to [Plaintiff] and
accept all well-pleaded factual allegations as true.” Ashland, Inc. v. Oppenheimer & Co., 648
F.3d 461, 467 (6th Cir. 2011) (internal quotation marks omitted). Although “detailed factual
allegations” are not required, “a formulaic recitation of the elements of a cause of action” is
insufficient to state a plausible claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
claim is plausible on its face if the “plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. Plausibility is not the same as probability, but rather “asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.; see also Ctr. for Bio-Ethical Reform, Inc.
v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011).
III.
Plaintiff’s complaint should be dismissed because -- assuming, arguendo, that all of the
allegations in his complaint are true -- he failed to exhaust the applicable DOT administrative
procedures before filing this lawsuit, and was also legally unqualified during the time in question
to drive a bus for GDRTA.7 Plaintiff claims in his complaint that the medical opinions of Dr.
McClure and other physicians (following Dr. Wanat’s disability finding) rendered him qualified
to drive a bus and, therefore, GDRTA’s refusal to allow him to return to work as a bus driver
was unlawful. See doc. 2 ¶¶ 22-26; see also McKay v. Toyota Motor Mfg., 110 F.3d 369, 371
(6th Cir. 1997) (establishing that a plaintiff must show he or she was “qualified to perform the
7

Even if the Court were to consider Plaintiff's affidavit -- which is attached to his opposition
memorandum, not referenced in his complaint, and is thus a matter “outside the pleadings” -- such
consideration, whether under Rule 12 or even as a summary judgment question under Rule 56, see Fed. R.
Civ. P. 12(d), would not change the outcome here. See doc. 12-1. Plaintiff does not aver in that affidavit
that he utilized the available administrative procedures. See id.
5

essential functions of [his or her] job with or without reasonable accommodation” to prevail on
an ADA employment discrimination claim). Plaintiff’s argument is unavailing because GDRTA
was legally justified in prohibiting him from driving a bus upon receiving Dr. Wanat’s report -stating that Plaintiff failed to meet the mandatory DOT medical certification guidelines. See 49
C.F.R. §§ 391.11(a) & (b)(4) (stating that a CMV operator must be physically qualified),
391.41(a)(1)(i) (stating that an operator of a CMV must be “medically certified as physically
qualified to do so”); 29 C.F.R. § 1630.15(e) (establishing that an employer may defend against
an ADA discrimination claim by demonstrating that the “challenged action [was] required or
necessitated by another Federal law or regulation”); Albertson’s, Inc. v. Kirkingburg, 527 U.S.
555, 570 (1999) (finding employer that terminated its commercial driver had an “unconditional
obligation” and “consequent right” to follow DOT regulations requiring a commercial vehicle
driver to meet certain physical qualifications); King, 1999 U.S. App. LEXIS 17944, at *6, 1999
WL 552512, at *2 (“Compliance with DOT safety regulations is an essential function of the job
for a commercial driver”). Plaintiff thus fails to state an actionable disability discrimination
claim in his complaint, and his pleading is subject to dismissal.
Further, in order to determine whether Plaintiff was qualified for his position, the Court
would have to resolve the disagreement between the medical opinions of Dr. Wanat and
Plaintiff’s physicians, and this is not the appropriate forum in which to do so. Rather, DOT
regulations provide procedures to resolve “a disagreement between the physician for the driver
and the physician for the motor carrier concerning the driver’s qualifications” to operate a
commercial bus: the driver can submit an application and supporting evidence to the Director of
the Office of Bus and Truck Standards and Operations to obtain a formal opinion, 49 C.F.R. §
391.47; and within sixty days of the Director’s determination, the driver can appeal the decision

6

to the Assistant Administrator. Id. § 386.13.8 In Ohio, the same process is available before the
Director of the Public Utilities Commission’s Transportation Department. Ohio Admin. Code §
4901:2-5-02(A). Appeals to Ohio’s Transportation Department or the DOT are designed to
afford plaintiffs “prompt and effective relief,” Campbell v. Fed. Express Corp., 918 F. Supp.
912, 918-19 (D. Md. 1996), as agencies are “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 v. P.A.M. Transp., Inc., 339 F.3d 635, 638 (8th Cir. 2003).
“Where relief is available from an administrative agency, the plaintiff is ordinarily required to
pursue that avenue of redress before proceeding to the courts; and until that recourse is
exhausted, suit is premature and must be dismissed.” Reiter v. Cooper, 507 U.S. 258, 269
(1993). Accordingly, because Plaintiff fails to allege that he exhausted these administrative
procedures, his ADA and Ohio disability discrimination claims should be dismissed. Accord
King, 1999 U.S. App. LEXIS 17944, at *5-7, 1999 WL 552512, at *2-3 (dismissing ADA claim
for failure to exhaust the DOT appeal process); Harris, 339 F.3d at 638 (same); Campbell, 918 F.
Supp. at 918-19 (same); see also West v. United Parcel Serv., No. 3:10-cv-716, 2011 U.S. Dist.
LEXIS 43944, at *5 & n.3, 2011 WL 1539792, at *2 & n.3 (W.D. Ky. Apr. 22, 2011) (“Federal
Circuit and District Courts unanimously have held that disputes concerning the issue of
8

Plaintiff makes an unpersuasive argument that DOT regulations do not apply to GDRTA bus drivers
because GDRTA is a political subdivision of the State of Ohio. See doc. 12 at PageID 82-87 (citing 49
C.F.R. § 390.3(f)(2), which provides that certain DOT regulations do not apply to “any political
subdivision of a State”). This argument is unfounded because the controlling CDL regulations explicitly
state that they apply to political subdivisions. See 49 C.F.R. §§ 383.3(a)-(b) (“[t]he employers and drivers
identified in § 390(f) must comply with [these CDL] requirements”), 383.5 (defining “employer” as
including “a political subdivision of a State”); see also Shannon v. New York City Transit Auth., 332 F.3d
95, 102-03 (2d Cir. 2003) (applying DOT regulations to a city bus driver); Daugherty v. City of El Paso,
56 F.3d 695, 697-98 (5th Cir. 1995) (same). Moreover, Ohio has explicitly adopted the federal DOT
regulations governing CDLs, and Ohio’s CDL statute defines a covered “employer” as including political
subdivisions. See Ohio Rev. Code § 4506.01(O); Ohio Admin. Code § 4901:2-5-02. Similar to federal
regulations, under Ohio law, a driver is “disqualified” from operating a CMV if he or she does not meet
DOT medical examination requirements. See Ohio Rev. Code §§ 4506.01(G)(3).
7

[medical] certification [for CMV drivers] should be resolved through the appeals process
described in the federal regulations”); EEOC v. P.A.M. Transp., Inc., No. 09-cv-13851, 2011
U.S. Dist. LEXIS 100331, at *15-18 & n.2, 2011 WL 3919300 (E.D. Mich. May 10, 2011) (and
cases cited therein).
IV.
IT IS THEREFORE RECOMMENDED THAT:
1.

Defendant’s motion to dismiss (doc. 9) be GRANTED; and

2.

This case be CLOSED.

July 2, 2013

s/ Michael J. Newman
United States Magistrate Judge

8

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(B)(C), or (D) and may be extended further by the Court
on timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring of record at
an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless
the assigned District Judge otherwise directs. A party may respond to another party’s objections
within FOURTEEN days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.
2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

9