Nichols v. City of Mitchell
Filing
101
MEMORANDUM OPINION AND ORDER re Motion for Summary Judgment Signed by U. S. District Judge Lawrence L. Piersol on 11/9/12. (SLW)
FILED
UNITED STATES DISTRICT COURT
NOV 092012
DISTRICT OF SOUTH DAKOTA
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SOUTHERN DIVISION
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JAMES R. NICHOLS;
CIV 11-4016
JOHN F. ROBERTSON; and
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CURTIS DUMAS,
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Plaintiffs,
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MEMORANDUM OPINION AND
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ORDER RE: MOTION
vs.
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FOR SUMMARY JUDGMENT
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CITY OF MITCHELL,
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Defendant.
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Plaintiffs James R. Nichols, John F. Robertson and Curtis Dumas brought separate actions
against Defendant City of Mitchell claiming employment discrimination in violation of the
Americans With Disabilities Act (ADA). I The cases were then consolidated for discovery and triaL
The Defendant City of Mitchell moved for summary judgment. Doc. 42. After the motion for
summary judgment was filed, the Court allowed Defendant to amend its answers, allowed additional
discovery and allowed supplemental briefing on the Defendant's motion for summary judgment. The
Court also gave notice pursuant to Fed. R. Civ. P. 56(f) that it was considering granting summary
judgment to the Plaintiffs on liability for the violation of 42 U .S.C. § 12112(d)( 4 )(A).
FACTUAL AND PROCEDURAL BACKGROUND
Defendant City of Mitchell provides transit services through Palace Transit, a program that
is partially funded with federal, state and city funds. Plaintiff James Nichols began working for
I Although age discrimination was alleged in the individual complaints, none of the
Plaintiffs filed a claim with the Equal Employment Opportunity Commission alleging they had
been discriminated against by the City based upon their age. There was no resistance to summary
judgment for the age discrimination claims and after the first hearing on the motion for summary
judgment the Court entered summary judgment against the Plaintiffs on their age discrimination
claims. Doc. 85.
Palace Transit as a bus driver in March 2003. Plaintiff John Robertson began working for Palace
Transit as a bus driver in 2005. Plaintiff Curtis Dumas began working for Palace Transit as a bus
driver in 2007. Defendant City of Mitchell adopted a policy on or about January 5, 2009, which
required its Palace Transit bus drivers to pass the Department of Transportation's (DOT) CDL
Medical Certification examination that utilizes the Federal Motor Carrier Safety Regulations. The
DOT examination is required by federal statute for interstate truck drivers. Palace Transit is an "on
demand" service, where the customers request a ride, and generally the services are provided in the
City of Mitchell. The first documented out-of-state trip was not had until 2011, after Plaintiffs'
employment had been terminated. Most of the buses seat fifteen or fewer passengers.
Defendants concede that to drive an intrastate passenger bus South Dakota law merely
requires a driver to hold a valid South Dakota CDL (Commercial Driver's License), the obtaining
ofwhich only involves a minimal vision test, and a written test. The job description for bus operator
for Palace Transit which was in effect when the plaintiffs were hired lists CDL "p" endorsement as
the required certificate or license for the position. The Defendant previously required a post-offer
physical exam which included a vision test, drug test, blood pressure test and a determination
whether the applicant could safely perform the physical requirements listed in the job description.
This exam was not as specific as the DOT exam and could be administered by the employee's
physician. All of the Plaintiffs had passed the post-offer physical exam under the previous policy.
Each of their post-offer physical summary reports for examinations under the previous policy
contained a check mark before the provision: "NO medical contraindications were noted in the
medical and occupational history review or in the physical exam that would interfere with
performing the essential functions of the job."
The DOT exam protocol specifies what physical to give, what medical records to obtain, and
what medical conditions to consider. The DOT exam protocol has required follow-up examinations
and requires the employee to report certain medical conditions and requires follow-up if certain
medical conditions change after an employee has passed the exam.
In 2009, each Plaintiff underwent the DOT examination required by the City of Mitchell's
policy. Plaintiffs Nichols and Robertson did not pass the examination. Plaintiff Dumas obtained a
one-year certification, and was required to undergo the examination again in March of 2010. On
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January 21,2010, Plaintiff Dumas's cardiac condition required the placement ofa stent, and in March
of 2010, required bypass surgery. On March 11, 2010, Plaintiff Dumas was placed on leave under
the Family Medical Leave Act (FMLA). His FMLA leave expired May 28, 2010, and his
employment was thereafter terminated. The Plaintiffs all had good work and safety evaluations and
worked overtime without accommodations prior to having their employment terminated.
Each Plaintiff filed a complaint with the Equal Employment Opportunity Commission
(EEOC) and in each case the District Director for the Minneapolis Area Office of the EEOC
concluded that each Plaintiff was discriminated against in violation of the ADA by being
discriminated against based on his disabil ity. The District Director also concluded that the
requirement to obtain a DOT certification was a violation of the ADA. Informal methods of
conciliation offered by EEOC were not utilized, each Plaintiff received his right to sue letter from
the U.S. Department ofJustice, and Plaintiffs timely commenced individual actions which were then
consolidated.
DISCUSSION
General Principles ofSummary Judgment
Summary judgment shall be entered ifthere is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). In ruling on a
motion for summary judgment, the Court is required to view the facts in the light most favorable to
the non-moving party and must give that party the benefit of all reasonable inferences to be drawn
from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The
moving party bears the burden of showing both the absence of a genuine dispute as to any material
fact and its entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986).
"Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.
Summary judgment is not disfavored and is designed for every action. Therefore, there is no
"discrimination case exception" to the application ofsummary judgment, which is in all cases a useful
pretrial tool to determine whether any case merits a trial. Torgerson v. City of Rochester, 643 F.3d
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1031,1043 (8th Cir.2011).
WHETHER PLAINTIFFS ARE PRECLUDED FROM PRESENTING THEIR ADA
CLAIMS FOR FAILURE TO DEMONSTRA TE THAT THEY HAVE A PHYSICAL
OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS
ONE OR MORE OF THE MAJOR LIFE ACTIVITIES?
Plaintiff Nichols was diagnosed with type 2 diabetes in 2002, was prescribed oral medication
for the diabetes, and has a heart condition. Plaintiff Robertson was diagnosed with diabetes in 1999,
began taking insulin for the diabetes in 2002, and was also diagnosed with sleep apnea problems.
Plaintiff Dumas has a history of coronary artery disease, required stent placement in January of20 10
and required coronary artery bypass graft surgery in March of 2010. Defendants rely on case law
handed down before the AD A was amended to contend that Plaintiffs have fai led to establish that they
have a "physical or mental impairment that substantially limits one or more of the major life
activities."See Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797,801-802 (8th Cir. 2006) (liThe
inability to perform a single particular job does not constitute a substantial limitation in the major life
activity of working. ").
The Americans with Disabilities Act Amendments Act (ADAAA), which was passed in 2008,
explicitly rejects several Supreme Court decisions that defined "disability" more narrowly than many
ofthe ADA's original Congressional proponents had intended. See H.R.Rep. No. 110-730, at 5 (2008)
(H. Comm. on Educ. & Labor), cited in Rohr v. Salt River Project Agricultural Imp. and Power Dist.,
555 F.3d 850, 861 (9th Cir.2009). Under the ADAA "disability" is to be broadly construed and
coverage is to apply to the "maximum extent" permitted by the ADA and the ADAAA. Rohr, 555
F.3d at 861, (citing 122 Stat. at 3553).
42 U.S.C.A. § 12102(1) defines disability as:
(A) a physical or mental impairment that substantially limits one or more major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment [... J.
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42 U.S.c.A. § 12102(4) provides the following rules of construction for determining a
disability under the ADA:
(A) The definition of disability in this chapter shall be construed in favor of broad
coverage of individuals under this chapter, to the maximum extent permitted by the
terms of this chapter.
(B) The term "substantially limits" shall be interpreted consistently with the findings
and purposes of the ADA Amendments Act of2008.
(C) An impairment that substantially limits one major life activity need not limit other
major life activities in order to be considered a disability.
(D) An impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.
(E)(i) The determination of whether an impairment substantially limits a major life
activity shall be made without regard to the ameliorative effects of mitigating
measures such as-
(I) medication, medical supplies, equipment, or appliances, low-vision devices (which
do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and
devices, hearing aids and cochlear implants or other implantable hearing devices,
mobility devices, or oxygen therapy equipment and supplies;
(II) use of assistive technology;
(III) reasonable accommodations or auxiliary aids or services; or
(IV) learned behavioral or adaptive neurological modifications.
(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or
contact lenses shall be considered in determining whether an impairment substantially
limits a major life activity.
The ADAA broadened the definition of disability. There are genuine issues of material fact
as to whether each Plaintiff has an a impairment which substantially limits a major life activity,
without considering the ameliorative effects of medication. In addition, the Eighth Circuit, in the
context ofa claim challenging the gathering or disclosure ofmedical information has stated a plaintiff
need not be disabled to state such a claim. See Cossette v. Minnesota Power & Light, 188 F.3d 964,
969-970 (8th Cir. 1999). As the Eighth Circuit explained, "It makes little sense to require an
employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether
or not he has a disability." Cosette, 188 F.3d at 969 (quoting Roe v. Cheyenne Mountain Conference
Resort. Inc., 124 F.3d 1221, 1229 (lOth Cir.1997»; see also Thomas v. Corwin, 483 F.3d 516,527
(8th Cir. 2007). In consideration ofthe ADAA's broad definition ofdisability and the position ofthe
Eighth Circuit in Cosette, the Court concludes that the plaintiffs may bring this action under the AD A.
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II.
WHETHER PLAINTIFFS NICHOLS' AND ROBERTSON'S DISABILITY BENEFIT CLAIMS
BAR THEIR ADA CLAIMS.?
Defendant cites Cleveland v. Policy A1anagement Systems Corp., 526 U.S. 795 (1999), in
support of its position that Plaintiffs Nichols' and Robertson's disability benefit claims bar their ADA
claims. This case, however, entitles an employee to an opportunity to explain any discrepancy
between his pursuit of disability benefits and his claim in the ADA action that he could perform the
essential functions ofhis job. The Supreme Court in Clevelandv. Policy Management Systems Corp.,
specifically declined to "apply a special legal presumption permitting someone who has applied for,
or received, SSDI benefits to bring an ADA suit only in 'some limited and highly unusual set of
circumstances.'" 526 U.S. at 805.
Plaintiff Nichols explained in his affidavit that he applied for and received disability benefits
from the South Dakota Retirement System (SDRS) because the City of Mitchell terminated his
employment. Nichols contended he would have continued to work as a Palace Transit bus driver if
his employment had not been, in his opinion, wrongfully terminated. Nichols also stated that City
employee Terri Bertness recommended that he apply for the disability benefits.
Plaintiff Robertson explained in his affidavit that he applied for and received disability
benefits because the City of Mitchell terminated his employment on the basis ofa medical exam that
he does not believe applies to him. Plaintiff Robertson explained in his affidavit that he had always
heard that when one applies for disability, one usually gets turned down for several years, so he
thought he should apply right away. Plaintiff Robertson further explained that he applied for disabili ty
benefits because he no longer had the income he needed from his position with Palace Transit.
These explanations from Plaintiffs Nichols and Roberts are sufficient to avoid summary
judgment on the basis of these Plaintiffs requesting and receiving disability benefits and also
contending they are qualified individuals in their ADA cases.
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III.
WHETHER THE PHYSICAL EXAMINATION EMPLOYING THE PHYSICAL
REQUIREMENTS OF PART 391.41 IS PREEMPTED BY STATE LAW AND PROHIBITED
BY THE ADA?
Preemption
S.D.C.L § 49-28A-3(3) provides: "Intrastate drivers are exempt from the physical
requirements of part 391.41." 49 C.F.R. § 391.41 governs the physical requirements for interstate
drivers ofcommercial vehicles. Part 391.41(b)(3) prohibits an interstate driver from being physically
qualified to drive a commercial motor vehicle if he has an "established medical history or clinical
diagnosis ofdiabetes mellitus currently requiring insulin for controL" Part 391.41 (b)( 4) prohibits an
interstate driver from being physically qualified to drive a commercial motor vehicle if he has a
"current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency,
thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope,
dyspnea, collapse, or congestive cardiac failure." Part 391.41 (b)(1 0) prohibits an interstate driver
from being physically qualified to drive a commercial motor vehicle ifhe does not possess distant
"visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity
separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of at
least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in
the horizontal Meridian in each eye, and the ability to recognize the colors of traffic signals and
devices showing standard red, green, and amber."
Plaintiffs argue that based on S.D.C.L § 49-28A-3(3), the City of Mitchell was preempted
from requiring a physical examination that imposed the requirements of 49 C.F.R. § 391.4. The City
maintains, however, that the State has not occupied the field, so that the City's policy, which applies
the DOT standards to intrastate drivers, does not conflict with the State law.
A local ordinance may conflict with state law in several ways. In the event of such a conflict,
state law preempts or abrogates the conflicting local law. Rantapaa v. Black Hills Chair Lift Co.,
633 N.W.2d 196,203 (S.D. 2001). First, an ordinance which prohibits an act which is forbidden by
state law is void to the extent it duplicates state law. Second, a conflict may exist between state law
and an ordinance when one prohibits what the other allows. Snow Land, Inc. v. City ofBrookings,
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282 N.W.2d 607, 608 (S.D.l979). Third, state law may wholly occupy a particular field to the
exclusion of any local regulation. See Law v.City ofSioux Falls, 804 N.W.2d 428 (S.D. 2011).
This case presents the second type of conflict. The South Dakota Supreme Court has explained, "A
conflict arises between an ordinance and a statute only when their express or implied terms are
irreconcilable, where the ordinance permits that which the statute forbids, or where the ordinance
forbids that which the statute expressly permits." Snow Land, Inc. v. City ofBrookings, 282 N. W.2d
at 608. By exempting intrastate drivers from the physical requirements of 49 C.F.R. § 391.41, the
State Legislature prohibited what the City of Mitchell permitted and, in fact, required. Defendant's
policy is therefore preempted by State law.
ADA Prohibitions on Medical Examinations and Inquiries
42 U.S.C. § 121 12(d)(4)(A) provides: 2
A covered entity shall not require a medical examination and shall not make
inquiries of an employee as to whether such employee is an individual with a
disability or as to the nature or severity of the disability, unless such
examination or inquiry is shown to be job-related and consistent with business
necessity.
In Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007), the Eighth Circuit recognized that
the employer who requires a medical examination bears the burden to establish that "business
necessity" is vital to the business and that the request for the medical examination "is no broader or
more intrusive than necessary." At the time they were required to take the DOT physical examination,
the Plaintiffs were intrastate drivers. Since S.D.C.L § 49-28A-3(3) exempted intrastate drivers from
the physical requirements of 49 C.F.R. § 391.41 the request for the DOT medical examination was,
as a matter of law, broader and more intrusive than necessary.
In Millage v. City of Sioux City, 258 F.Supp.2d 976 (N.D. Iowa 2003), a city bus driver
brought an ADA action against the city, based on the city placing him on a leave of absence because
242 U.S.C. § 12112(d)(4)(B) allows for "voluntary medical examinations, including
voluntary medical histories, which are part of an employee health program available to
employees at that work site. A covered entity may make inquiries into the ability of an employee
to perform job-related functions."
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he was an insulin-dependent diabetic. The City of Sioux City adopted the Federal Motor Carrier
Safety Standards, and the local transit union accepted them as part of the contract for the bus driver
position. The plaintiff in Millage was unable to meet these standards because he was an
insulin-dependent diabetic with arguably poor control over his diabetes. 258 F .Supp.2d at 986.
The district court in Millage determined that whether or not a claimant under the ADA can
perform the essential functions ofa particular job must be based upon an "individualized assessment"
of his or her ability to perform the job safely, rather than be based simply on a blanket exclusion set
forth in the Federal Motor Carrier Safety Standards. 258 F.Supp.2d at 992 (citing Kapche v. City of
San Antonio, 304 F.3d 493 (5th Cir.2002)). In the case at hand,3 to the extent that the DOT physical
examination relies on blanket exclusions set forth in 49 C.F .R. § 391.41, there was no individualized
assessment of each plaintiff s ability to perform the job safely. Accordingly, there was a violation of
the ADA by the City of Mitchell by requiring Department of Transportation certification for its
intrastate drivers and summary judgment will be granted for each Plaintiff on the third claimed cause
of action for requiring Department of Transportation Federal Motor Carrier Safety Administration
testing for the intrastate drivers.
Impact on Trial ofSummary Judgment Ruling on Third Cause ofAction
Even though the application ofthe physical requirements of49 C.F.R. § 391.41 was precluded
by the South Dakota Legislature, the DOT exam itself can be administered by a physician in those
instances when an employee can properly be required to take a physical examination during the course
of his employment, but the determination then made must be an individualized assessment as to
whether the employee can still do the job, and not a categorical determination, for example, that if
you use insulin you are automatically discharged.
With regard to an employee being required to have an examination during the course of his
employment, the employer must show that '''there must be significant evidence that could cause a
reasonable person to inquire as to whether an employee is still capable of performing his job.'"
3Plaintiff Robertson failed the DOT examination because his was insulin dependent.
Plaintiff Nichols was disqualified based upon the DOT examination's peripheral vision
requirements. Nichols then passed the peripheral vision examination administered by Dr. Martin.
Plaintiff Dumas originally passed the DOT examination but was not qualified to return to work
pursuant to the DOT standards after undergoing heart procedures.
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Thomas v. Corwin, 483 F 3d 516, 527 (8th Cir. 2007) ( quoting Sullivan v. River Valley Sch. Dist.,
197 F.3d 804, 811 (6th Cir.1999)) (An employee's behavior cannot be merely annoying or inefficient
to justify an examination; rather, there must be genuine reason to doubt whether that employee can
"perform job-related functions."). As the Eighth Circuit further explained in Thomas v. Corwin:
"[Clourts will readily find a business necessity if an employer can demonstrate ... a
medical examination or inquiry is necessary to determine ... whether the employee can
perform job-related duties when the employer can identify legitimate,
non-discriminatory reasons to doubt the employee's capacity to perform his or her
duties (such as frequent absences ... )," or "whether an employee's absence or request
for an absence is due to legitimate medical reasons, when the employer has reason to
suspect abuse of an attendance policy." [Conroy v. N. Y. State Dep't ofCorr. Servs.,
333 F.3d 88, 97-98 (2d Cir.2003)].
483 F.3d at 527. Employers are permitted "to use reasonable means to ascertain the cause oftroubling
behavior without exposing themselves to ADA claims." Cody v. ClGNA Healthcare ofSt. Louis, Inc.,
139 F.3d 595, 599 (8th Cir.1998), Fitness-for-duty exams are considered a reasonable means of
making such a determination. See Wisbey v. City of Lincoln, 612 F.3d 667, 673 (8th Cir. 2010),
abrogated on other grounds in Torgerson v. City ofRochester, 643 F.3d 1031, 1043 (8th Cir.2011).
It has been recognized, however, that where an employer develops a suspicion regarding the
employee's health, but has no justified concern about employee's ability to perform her job, the ADA
prevents the employer from requiring the employee to submit to a medical examination." Rodriguez
v. Loctite Puerto Rico, Inc. 967 F.Supp. 653, 661 (D.Puerto Rico 1997).
There are genuine issues of material fact regarding whether the medical examinations were
job-related and consistent with business necessity. Defendant has submitted evidence that the City
was told by an examining physician at Queen of Peace Hospital that an applicant was not medically
fit to drive because of a condition that a supervisor knew another driver had. There is also evidence
that the City adopted the new policy and requested the examinations because they wanted more
standardized and consistent testing. Plaintiff Nichols stated in his affidavit that he mentioned his heart
condition to a City dispatcher briefly, but did not go into detail. There is also evidence in the record
that Nichols' employer knew he had trouble affording diabetes testing strips. Plaintiff Robertson
stated in his affidavit that he had a hypoglycemic episode while at work in October of2007, at the end
ofhis shift when the bus he was driving was empty, and contacted his dispatcher to drive the bus back
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to the barn. The City was obviously aware of Plaintiff Dumas's heart procedures that were required
after he passed his March 13, 2009 physical examination. In addition there is also evidence that the
Plaintiffs had good work and safety evaluations and had no problems performing their work duties
competently and safely for a significant period of time before they were required to take the DOT
examinations. The jury will determine with regard to each Plaintiff whether there existed "significant
evidence that could cause a reasonable person to inquire as to whether an employee is still capable
of performing his job. ",
Ifbusiness necessity is shown then an employer must also show that the medical examination
or inquiry is no more intrusive than necessary. Thomas v. Corwin, 483 F.3d at 527. It is the
employer's burden. If as to these three Plaintiffs the employer fails on the above proof, then the
subsequent information gathered after the requested examination could not be used as the basis for
the discharge of that particular Plaintiff. In addition, there would be an ADA violation for relying on
a prohibited medical examination, this ADA violation being set forth in Count 4 of each Complaint.
The jury will receive special interrogatories to ensure that the information gathered from the requested
examinations and subsequent discovery is not considered unless and until the jury determines
business necessity.
IV
WHETHER DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS' WRONGFUL DISCHARGE AND FAILURE TO ACCOMMODATE
CAUSES OF ACTION?
Under the ADA it is unlawful for an employer to discriminate against any "qualified
individual on the basis of disability." 42 U.S.C. § 12112(a). "Discrimination" is defined to include
"not making reasonable accommodations to the known physical or mental limitations ofan otherwise
qualified individual with a disability." 42 U.S.c. § 12112(b)(5)(A). To establish a prima facie case
of discrimination under the ADA, an employee must show that he (l) is disabled within the meaning
ofthe ADA, (2) is a qualified individual under the ADA, and (3) has suffered an adverse employment
decision because ofthe disability. Huber v. Wal-Mart Stores. Inc., 486 F.3d 480, 482 (8th Cir. 2007).
To be a qualified individual under the ADA, an employee must "(1) possess the requisite skill,
education, experience, and training for his position; and (2) be able to perform the essential job
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functions, with or without reasonable accommodation." Fenney v. Dakota, Minn. & E. R.R. Co., 327
F.3d 707, 712 (8th Cir.2003) (internal quotation omitted).
The scope of reasonable accommodation under the ADA includes: "job restructuring,
part-time or modified work schedules, reassignment to a vacant position, acquisition or modification
ofequipment or devices, appropriate adjustment or modifications ofexaminations, training materials
or policies, the provision of qualified readers or interpreters, and other similar accommodations for
individuals with disabilities." 42 U.S.C. § 12111(9)(B), quoted in Huber v. Wal-Mart Stores, Inc.,
486 F.3d at 482. If, however, there is sufficient evidence that the discharge was not because of
disability but rather because of failure to monitor or control a medical disability, then there will be
no accommodation question for the jury to decide. See Burroughs v. City a/Springfield, 163 F.3d
505, 507-508 (8th Cir. 1999) (patrol officer who twice suffered diabetic reactions while on duty
which rendered him unable to function on the job, and who admitted that the episodes resulted from
changes in his eating schedule, which was within his control, "failed to state a claim under the ADA
because he was capable ofperforming the job without accommodation, yet he failed on two occasions
to keep himself functional and alert on the job").
Defendant maintains that it is entitled to summary judgment on Plaintiffs' ADA wrongful
discharge and failure to accommodate claims (1) because its medical examination policy is not
unlawful and is characterized by every expert as setting forth an appropriate, reasonable standard; (2)
because the Plaintiffs were not "qualified individuals" under the ADA; and (3) because no reasonable
accommodation exists for these Plaintiffs. As was previously discussed, a DOT examination itself
could be administered by a physician in appropriate instances, but the ADA requires an individualized
assessment as to whether the employee is qualified to safely perform his job, and not a blanket
exclusion based on the physical requirements of 49 C.F.R. § 391.41.
Defendants maintain that Plaintiffs cannot prove they were qualified individuals who could
perform the essential functions of their jobs, with or without reasonable accommodations, because
they cannot meet the ADA requirement that they not pose a direct threat to the health or safety of
others. 42 U.S.C. § 12111 (3) defines "direct threat" as a "significant risk to the health or safety of
others that cannot be eliminated by reasonable accommodation." An employer bears the burden of
proofon the ADA defense that the employee would pose a direct threat to the health or safety ofother
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individuals in the workplace, as the direct threat defense is considered an affirmative defense.
E.E.OC v. Waf-Mart Stores, Inc., 477 F.3d 561, 571 (8th Cir. 2007). The Eighth Circuit has
described the requirements of establishing a direct threat as follows:
The Supreme Court requires an individualized direct threat analysis that relies on the
"best current medical or other objective evidence" in order to "protect disabled
individuals from discrimination based on prejudice, stereotypes, or unfounded fear."
Nunes, 164 F.3dat 1248 (citing Bragdon v. Abbott, 524 U.S. 624,118 S.Ct. 2196,141
L.Ed.2d 540 (1998); Sch. Bd. ojNassau County, Fla. v. Arline, 480 U.S. 273, 107
S.Ct. 1123,94 L.Ed.2d 307 (1987)). "Specific factors to be considered include (1) the
duration of risk, (2) the nature and severity of the potential harm, (3) the likelihood
that the potential harm will occur, and (4) the imminence of the potential harm." Id.
In attempting to establish the direct threat defense, Defendant relies on substantial medical
testimony regarding the significance ofthe failure ofall the Plaintiffs to meet DOT standards and the
impact of Plaintiffs Nichols and Robertson's reported noncompliance in monitoring and controlling
their medical conditions. The Plaintiffs, however, have presented evidence that they are managing
their conditions, that they had good work and safety records, and that they have passed less stringent
physical examinations. All three Plaintiffs hold Commercial Driver's Licenses with passenger
endorsements from the State of South Dakota. Genuine issues of material fact exist, therefore, with
regard to the direct threat defense.
With regard to providing a reasonable accommodation, all of the Plaintiffs have submitted
evidence that they had and could be qualified individuals if there were appropriate adjustment or
modification ofthe examination required by the City's policy. These adjustments and modification
would provide that the physical examination conform to State law and and not impose blanket
exclusions based on the physical requirements of 49 C.F .R. § 391.41. Robertson has presented
evidence that by allowing drivers with diabetes to eat on the bus in order to maintain proper blood
sugar levels, a practice which was not allowed by his supervisor, he could maintain his blood sugar.
Plaintiff Dumas has presented evidence that could have been accommodated by following the
recommendations of his treating physician and cardiologist rather than adhering solely on the federal
DOT standards. In addition, there is evidence that weight lifting requirements for Dumas could have
been modified without interfering with his ability to perform essential job functions.
Genuine issues of material fact exist with regard to ADA wrongful discharge and failure to
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accommodate claims and the direct threat affirmative defense. Accordingly, Counts 1 and 2 will go
to trial.
V
WHETHER DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF DUMAS'S FMLA CAUSE OF ACTION?
Plaintiff Dumas also has a claim for a violation of the Family Medical Leave Act (FMLA) in
the Sixth Cause of Action in his Complaint. On January 25, 2010, Dumas's physician approved his
return to work after Dumas's January 21,2010 heart stent surgery. Dumas returned to work, but was
then sent home because the City maintained that DOT medical regulationa required him to take off
60 days. In March of 2010 Dumas experienced chest pain which required leave from work for
additional heart surgery. Plaintiffs heart surgeon cleared him to return to work in mid-May 2010,
with a restriction oflifting no more than 50 pounds for two weeks. Dumas contends he did not request
and did not want 57 days of leave for the January 2010 heart surgery, but the City required that he
take leave under a federal regulation. When Dumas informed the City that he was able to return to
work and perform the functions of his job in mid-May 2010, the City refused to reinstate him to any
position. Based on his physician's order Dumas could have returned with a two-week, slightly
reduced lifting restriction starting May 4,2010. Under his doctor's order he could have returned to
work as a Palace Transit bus driver without any restrictions on May 18,2010. A North Central Heart
Institute document submitted by Dumas's cardiovascular/thoracic surgeon on May 4,2010, states that
Dumas could work with a restriction of lifting no more than 50 pounds for two weeks. Dumas's
cardiovascular/thoracic surgeon on May 4,2010, wrote to Dumas's physician, Dr. Margallo, and
stated:
I had the pleasure of seeing Curtis Dumas in clinic today. I did a coronary artery
bypass grafting of two vessels on him on March 19,2010. Today in clinic he looks
excellent. His sternum is stable and I think it is time for him to go back to work. I am
going to write him for a slightly reduced lifting restriction for another two weeks, but
I think he can be back to full activity soon.
While Dumas was on FMLA leave after his bypass he was physically able to do and did
landscaping around his house, and lifted heavy buckets ofrocks, and hand-mixed and poured concrete
14
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for a new sidewalk to his garage, without experiencing angina or any other heart problem. Dumas also
visited the job site many times while he was on FMLA leave, and was told by his supervisors that
they were holding his job open for him and looking forward to his return on June 19,2010, the date
the City had determined to be his return date. The City then determined that Dumas's FMLA benefits
ran out on May 28, 2010, and terminated him on or about June 1, 2010, in a termination letter which
states that the Defendant terminated Dumas's employment because his FMLA time allotment expired
on May 28, 2010. Dumas contends that ifhe had not been forced to take the 60 days in January, he
would have been entitled to FMLA leave until June 12, 2010, and would not have been terminated
because his FMLA benefits had run out.
The FMLA entitles an employee to twelve weeks ofleave from work during any twelve-month
period if the employee meets certain statutory requirements. 29 U.S.C. § 2612(a)(l). The City does
not dispute that Dumas meets those requirements. 29 U.S.c. § 2615(a)(1) makes it unlawful for an
employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise" rights
provided under the FMLA. It is also unlawful for "any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful" by the FMLA. 29
U.S.C. § 2615(a)(2). Dumas raises an FMLA interference claim based on a theory of involuntary
leave. Other districts in this Circuit have recognized that an employer may interfere with an
employee's right to FMLA leave by forcing the employee to take leave that the employee did not
request or need. See Hearst v. Progressive roam Technologies, Inc., 682 F.Supp.2d 955, 967
(E.D.Ark.201O); Heyne v. HGI-Lakeside, Inc., 589 F.Supp.2d 1119, 1128 n.l3 (S.D. Iowa 2008).
To establish such a claim "requires an employee to have been forced to take FMLA leave even though
the employee does not have a 'serious health condition' that precludes him from working."Hearst v.
Progressive Foam Technologies, Inc., 682 F.Supp.2d at 967.
The Eight Circuit has held that the FMLA has no requirement that an employer reasonably
accommodate employees who cannot perform the essential functions oftheir respective positions, and
that the duty to accommodate is governed solely by the ADA. See Battle v. United Parcel Serv., Inc.,
483 F.3d 856,865 (8th Cir. 2006). However, Dumas has presented genuine issues of material fact as
15
to whether lifting 100 pounds is an essential function of his job and as to whether he was prejudiced4
by the forced leave when his treating physician said Dumas could return to work with no restrictions
on May 18,2010, that date being before his FMLA leave would expire. Accordingly, Defendants'
motion for summary judgment is denied as to Dumas's FMLA claim.
VI
WHETHER THE OPINIONS OF DOCTORS MEYER, WICKERSHAM, AND MARGALLO
SHOULD BE PRECLUDED UNDER THE DA UBERT STANDARDS?
Defendant contends that the issue of whether Plaintiffs were fit to drive under the FMCSA
DOT standards is the central issue in this case, and that Drs. Meyer, Wickersham, and Margallo have
little or no knowledge regarding the DOT standards. Defendant then asserts that this Court exercise
its gatekeeping function and prohibit these doctors from offering expert opinions as to the effect of
Plaintiffs' medical conditions on their ability to drive. For the reasons set forth in this opinion, the
Court does not adopt the Defendant's characterization of the central issue in this case, and will not
require expertise on the FMCSA DOT standards in order for the doctors in issue to express opinions
related to the Plaintiffs' abilities to safely perform the esser:tial functions of their jobs.
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The Court has a gatekeeping role in evaluating whether proffered expert testimony meets the
4An employee's claim for involunry leave typically ripens only when and if that employee
seeks leave at a later date and the leave is not available because the employee was wrongfully
forced to use leave earlier. See Hearst v. Progressive Foam Technologies, Inc., 682 F.Supp.2d at
967 -968. In the case at hand the claim ripened at the time Dumas was terminated due to the
exhaustion of his FMLA leave.
16
standard of Rule 702. Daubert v. Merrell Daw Pharmaceuticals, Inc., 509 U.S. 579, 597-98 (1993).
"As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not
the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in
cross-examination." Laudermill v. Daw Chem. Ca., 863 F .2d 566, 570 (8th Cir.1988). It is "only if
an expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury" must
such testimony be excluded. Laudermill, 863 F .2d at 570. Accordingly, doubts regarding the
usefulness of an expert's testimony should be resolved in favor of admissibility. United States v.
Finch, 630 F.3d 1057, 1062 (8th Cir.2011). "Gaps in an expert witness's qualifications or knowledge
generally go to the weight ofthe witness's testimony, not its admissibility." 29 Charles Alan Wright
& Victor James Gold, Federal Practice and Procedure: Evidence § 6265 (1997).
All three physician witnesses were treating physicians of one or more ofthe Plaintiffs and are
fact witnesses in this case. Dr. Margallo, who is licensed in internal medicine commonly treats
patients with diabetes in his practice. Dr. Margallo treated Plaintiff Robertson and reviewed and
reviewed the July 2000 job description for Palace Transit bus drivers. Dr. Margallo also has
experience treating people with cardiovascular disease and treated Plaintiff Dumas beginning in
August of 1999. Dr. Margallo reviewed the FMCSA Medical Examination Report Instructions to the
Medical Examiner for performing DOT medical examinations and reviewed cardiology records
concerning Dumas. Any opinion Dr. Margallo has on the relevant issues in this case are based on his
education, training and experience as a physician, and his experience in treating Dumas and
Robertson, and is qualified to give an expert opinion on the relevant issues in their cases.
Dr. Meyer is a licensed physician who specializes in cardiovascular/thoracic surgery and
operated on Curtis Dumas on March 19, 20 IO. He is licensed in the State of South Dakota and
certified by the American Board of General Surgery and the American Board of Thoracic Surgery.
Dr. Meyer has the requisite medical education, expertise, training and experience to render an opinion
on the relevant issues concerning Plaintiff Dumas.
Dr. Wickersham specializes in family medicine and is certified by the American Board of
Family Medicine. He has treated Plaintiff Nichols for diabetes and chest pain, reviewed his treatment
records, and reviewed the Palace Transit July 2000 job description. Dr. Wickersham has the requisite
education, training and experience as a physician to render an opinion on the relevant issues
17
concerning Plaintiff Nichols. All three physicians can assist the jury in this case. Any deficiencies
these three physicians have in their knowledge of the specifics of the FMCSA DOT standards does
not exclude their testifying as experts in this trial.
Accordingly,
IT IS ORDERED:
1.
That pursuant to Fed. R. Civ. P. 56(f), summary judgment is granted to the Plaintiffs
on the third cause of action in their Complaints.
2.
That Defendant's motion for summary judgment is an all respects denied, except for
the Court having previously entered summary judgment against the Plaintiffs on their
age discrimination claims~
2.
That Defendant's request for the Court to exclude expert opinions of the Plaintiffs'
physician witness is denied.
Dated this qtiday of November, 2012.
BY THE COURT: ( ).....
t~.t1-L- if~uATTEST:
JOSEPH HAAS, CLERK
BY::lmtmrM
U!iwrence L. Piersol
United States District Judge
~
DEP Y
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