Equal Emp't Opportunity Comm'n v. Werner Enters.

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EQUAL OPPORTUNITY EMPLOYMENT COMMISSION, Plaintiff, and ANDREW DEUSCHLE, Intervenor Plaintiff v. WERNER ENTERPRISES, INC., Defendant.

EQUAL OPPORTUNITY EMPLOYMENT COMMISSION, Plaintiff, v. DRIVERS MANAGEMENT, LLC and WERNER ENTERPRISES, INC., Defendants.

Nos. 8:18-CV-329, 8:18-CV-462

United States District Court, D. Nebraska

March 31, 2023

MEMORANDUM AND ORDER

JOHN M. GERRARD, SENIOR UNITED STATES DISTRICT JUDGE

The plaintiff in these two consolidated cases,^[1] the Equal Opportunity Employment Commission (EEOC), is representing the interests of two prospective commercial truck drivers-Andrew Deuschle and Victor Robinson-who are hearing-impaired. The defendants Werner Enterprises and its subsidiary, Drivers Management (collectively, Werner) declined to hire Deuschle and Robinson because, Werner says, they couldn't safely complete Werner's training program. The EEOC says Werner violated the Americans with Disabilities Act. The Court finds that there are genuine issues of material facts precluding summary judgment on that claim, and-although the Court will dispense with certain discrete issues-the Court will deny the parties' cross-motions for summary judgment as to the EEOC's primary failure-to-hire disability discrimination claim.

I. BACKGROUND

Werner is a motor carrier transporting goods throughout the United States. Filing 264 at 3.^[2] Werner requires recent truck driving school graduates and relatively inexperienced applicants to complete its "placement driver program," which Werner says is "designed to enhance safe driving skills, assist new drivers in transitioning to the industry, provide support, and set trainees up for success while promoting highway safety." Filing 264 at 6-7.

That program includes an over-the-road driving component, during which the applicant-or, "placement driver"-is observed by a trainer while driving, who provides instructions on safety procedures and driving techniques. Filing 264 at 7. The placement driver and trainer are, Werner says, expected to communicate regarding "such topics as emergencies and tutorials about defensive driving, as various driving events occur." Filing 264 at 7. Placement drivers begin by driving in safe environments, gradually progressing to more challenging traffic, terrain, and times of day or night. Filing 264 at 7-8. Werner claims its training is "very different" from a trucking school, and the ability of deaf applicants to complete Werner's training is at the heart of this case.

Both Deuschle and Robinson are deaf, but had completed truck driving school and obtained their commercial driver's licenses. Filing 269 at 4-5;^[3] No. 8:18-cv-462 filing 249 at 3-5. Deuschle applied to Werner in 2015, and Robinson applied in 2016. Filing 264 at 9, 13. Deuschle had been driving for another company for a few months, but Robinson was inexperienced aside from his driving school. Filing 264 at 9, 13. Both men were granted exemptions from Federal Motor Carrier Safety Administration (FMCSA) physical qualification standards concerning hearing for interstate drivers. See 80 Fed.Reg. 18,92401 (Apr. 8, 2015); 20 Fed.Reg. 22,768 (Apr. 23, 2015).

Werner ultimately rejected both Deuschle and Robinson. Filing 264 at 12-13; filing 269 at 10. Robinson, specifically, was not hired because Werner was purportedly unable to identify any way for him to complete Werner's over-the-road training, because there was no way for his instructor to communicate with him without requiring him to take his eyes off the road. Filing 264 at 12. And Werner admits that, regardless of any other factors, it would have rejected Deuschle for the same reason. Filing 269 at 23.

After administrative proceedings, the EEOC brought these cases on Deuschle and Robinson's behalf. The primary claim is failure to hire, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA). Filing 112 at 6. The EEOC also alleges a claim for unlawful inquiry on a job application, premised on the alleged presence of a "disability-related question" on Werner's application for employment. Filing 112 at 6-7. And the EEOC alleges a claim for illegal classification, based on a "deaf recruitment policy" Werner allegedly adopted. Filing 112 at 7.

II. STANDARD OF REVIEW

Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis Cty., 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.

Rule 56 also allows the Court to grant summary judgment as to some issues but not as to others. See Fed.R.Civ.P. 56(a). Upon doing so, the Court may "enter an order stating any material fact-including an item of damages or other relief-that is not genuinely in dispute," and thereby treat such a fact "as established in the case." Fed.R.Civ.P. 56(g). And after giving notice and a reasonable time to respond, the Court may take other actions dictated by its findings-it may grant summary judgment for a nonmovant, grant the motion on grounds not raised by a party, or consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute. See Fed.R.Civ.P. 56(f).

III. DISCUSSION

The parties have filed a host of motions, but they mirror one another: Each party wants to exclude the other's experts, and each party wants judgment as a matter of law on some or all of the issues. The Court will start with the questions presented by the summary judgment motions, as providing the most comprehensive entry into the issues.

To frame the discussion, however, it's helpful to review the basic elements of the EEOC's claim: The Americans with Disabilities Act (ADA) prohibits covered employers from discriminating against "a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). Prohibited discrimination under the ADA includes intentional discrimination against a qualified individual in hiring and job application procedures," id., and "limiting, segregating, or classifying a job applicant" in an adverse way because of his disability, § 12112(b)(1). SeeCook v. George's, Inc., 952 F.3d 935, 939 (8th Cir. 2020).

1. QUALIFIED INDIVIDUAL WITH A DISABILITY

First, Werner denies that the drivers were qualified individuals. A "qualified individual" is a person "who, with or without reasonable accommodation, can perform the essential functions" of a job. § 12111(8). "Essential functions" are "the fundamental job duties of the employment position the individual with a disability holds." 29 C.F.R. § 1630.2(n)(1).

(a) Federal Regulations

Werner's primary argument is that it was entitled to rely on regulations promulgated by the Department of Transportation establishing standards for the physical qualification of commercial motor vehicle drivers. Filing 264 at 17-21. Werner points to Albertson's, Inc. v. Kirkingburg, in which the Supreme Court held that a vision-impaired driver wasn't a qualified individual with a disability because he didn't satisfy those standards-even through the vision standard had been waived for the plaintiff in that case pursuant to an "experimental" program. 527 U.S 555, 577 (1999). Werner's argument is that the same is true in this case-that the plaintiffs aren't "qualified" because they don't meet the baseline physical standard, and that Werner doesn't have to accept their exemptions. Filing 264 at 17-21.

But the key to the Supreme Court's holding in Albertson's was that the validity of the regulations which established physical standards at the time was "unchallenged, they have the force of law, and they contain no qualifying language about individualized determinations." Id. at 570.^[4] The Court explained that the waiver program was merely an attempt to gather data relevant to potential regulatory changes, and that an employer wasn't obliged to participate in the experiment instead of choosing "to abide by the otherwise clearly applicable, unamended substantive regulatory standard despite the Government's willingness to waive it experimentally and without any finding of its being inappropriate." Albertson's, 527 U.S. at 577.

Perhaps the most important word there is "unamended,"...