Hurd v. Cardinal Logistics Mgmt. Corp., Civil Action No.: 7:17-cv-00319

JOHN MILLARD HURD, Plaintiff, v. CARDINAL LOGISTICS MANAGEMENT CORPORATION, Defendant.

Civil Action No.: 7:17-cv-00319

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

September 25, 2018

By: Elizabeth K. Dillon United States District Judge

MEMORANDUM OPINION

Plaintiff John Millard Hurd brings this action against Cardinal Logistics Management Corporation (Cardinal) under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq., and the ADA Amendments Act of 2008. Before the court are defendant's motion for judgment on the pleadings (Dkt. No. 19), plaintiff's motion for partial summary judgment (Dkt. No. 35), and defendant's motion for summary judgment (Dkt. No. 37). For the following reasons, the court will grant plaintiff's motion for partial summary judgment, grant in part and deny in part defendant's motion for summary judgment, and deny as moot defendant's motion for judgment on the pleadings.

I. INTRODUCTION

Hurd has a medical history of complex partial epilepsy. From 2013 to October 2015, Hurd drove a commercial truck for Plygem Industries, Inc. Pursuant to 49 C.F.R. § 391.43, Hurd underwent medical testing and was certified as a qualified driver by medical examiners; a medical examiner approved by the Department of Transportation certified Hurd for the two-year period between November 3, 2014, and November 3, 2016. Cardinal acquired PlyGem in June 2015, and PlyGem announced it would no longer need commercial drivers after October 31. Hurd applied to be a commercial driver with Cardinal Logistics in August 2015.

In August 2015, Cardinal required Hurd "without cause" (Compl. ¶ 14, Dkt. No. 1) to submit to physical examinations—although he was already medically certified—and refused to hire him unless it received a new medical certificate. Hurd did so in October 2015, and the DOT-approved medical examiner, Dr. Aujla, approved Hurd on October 9. After receiving the certificate, Cardinal asked Hurd to submit to a hemoglobin AIC test, which he did on October 15. The test showed that he suffered from hyperglycemia and placed him at an increased risk for diabetes. The test also showed that Hurd took Dilantin for an unspecified condition. These medical examinations cost Hurd approximately $1,020 in lost wages at PlyGem, in addition to mileage.

Cardinal consulted its third-party administrator, HireRight, about Hurd's test results. For his part, Hurd reported that he was not sure of his exact diagnosis but that he had taken Dilantin for many years. Cardinal sent Dr. Burch, Hurd's treating neurologist, a written "medical clearance" inquiry about the reasons for prescribing Dilantin. Cardinal then required Dr. Burch to complete a medical clearance form, which he did on October 22. Dr. Burch reported that although Hurd suffers from complex partial epilepsy, he could safely operate a commercial motor vehicle.

Nevertheless, in November 2015, Cardinal refused to hire Hurd because of his diagnosis of partial epilepsy. Hurd filed an amended charge of disability discrimination in violation of the ADA with the EEOC on February 26, 2016.

The complaint contains two counts. Count One asserts that Cardinal knowingly discriminated against Hurd on the basis of his disability by subjecting him to prohibited medical examinations and refusing to retain or hire him despite his qualifications and jobs available within the company. It further asserts that Cardinal misapplied DOT and Federal Motor Carrier Safety regulations, including 49 C.F.R. §§ 391.41(b)(8) and 391.43(f)(1), to justify its refusal to hire Hurd. Count Two is pled in the alternative to Count One, and it asserts that even if Hurd did not have an actual disability at all relevant times, Cardinal refused to hire Hurd because of his record of partial epilepsy and its perception that he was disabled by the impairment, even though it knew he possessed the requisite qualifications.

II. DISCUSSION

A. Standard of Review

Summary judgment may be granted if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "When faced with cross-motions for summary judgment, the court must review each motion separately on its own merits [and] 'resolve all factual disputes and any competing, rational inferences in the light most favorable' to the party opposing that motion." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)). The party opposing the motion, however, "'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts'" showing a triable issue. Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting Fed. R. Civ. P. 56(e)). Parties may point to such facts by "citing to particular parts of materials in the record . . . or . . . showing that the materials cited do not establish theabsence or presence of a genuine dispute." Fed. R. Civ. P. 56(c)(1). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).

B. Hurd's Motion for Partial Summary Judgment

Hurd moves for partial summary judgment as to Cardinal's liability for its violations of 42 U.S.C. § 12112(d) and related regulations promulgated by the Federal Motor Carrier Safety Administration (FMCSA). Specifically, Hurd argues that Cardinal violated the ADA by subjecting him to pre-employment medical examinations and disability-related inquiries. For the following reasons, the court will grant Hurd's motion.

Section 12112(d)(2) of the ADA governs pre-employment medical examinations and inquiries and provides that "a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." 42 U.S.C. § 12112(d)(2). Under § 12112(d)(3), "[a] covered entity may require a medical examination after an offer of employment has been made . . . ." Likewise, 29 C.F.R. § 1630.13(a), governing pre-employment medical examinations and inquiries, provides that "it is unlawful for a covered entity to conduct a medical examination of an applicant or to make inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of such disability." Section 1630.14 states that a covered entity "may make pre-employment inquiries into the ability of an applicant to perform job-related functions," § 1630.14(a), and that a covered entity may require a medical examination or inquiry after making a conditional offer of employment, § 1630.14(b).

Cardinal makes three main arguments: 1) it is exempt from the pre-employment provisions of the ADA because it is subject to regulatory oversight by the FMCSA; 2) Hurd isnot a "qualified" individual with a disability within the meaning of the ADA and therefore lacks standing to enforce § 12112(d)(2); and 3) Hurd cannot show any alleged violation proximately caused damages.¹ The court addresses each argument in turn.

1. Cardinal is not exempt from the ADA pre-employment provisions.

In its briefing, Cardinal argues that "the ADA does not come into play in this case" because it is a motor carrier subject to FMCSA regulations. (Def.'s Mem. Supp. Mot. Sum. J. 1, Dkt. No. 38.) At the hearing, however, Cardinal softened its argument, conceded that the ADA applies to this case, and argued instead that its application is merely limited by the regulations that govern Cardinal as a motor carrier.

"When Congress enacted the ADA, it recognized that federal safety rules would limit application of the ADA as a matter of law." Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 573 (1999). Under the FMCSA safety regulations, a commercial motor vehicle "driver is required, among other things, to undergo a medical examination and obtain a medical examiner's certificate that he or she is physically qualified to safely operate" a commercial motor vehicle (CMV). See NLRB v. Pessoa Constr. Co., 632 F. App'x 760, 763 (4th Cir. 2015) (citing 49 C.F.R. §§ 391.11(b)(4), 391.41, 391.43, 391.45). Nevertheless, the relevant regulations present no direct conflict with the ADA, see 29 C.F.R. § 1630.15(e); 29 C.F.R. pt. 1630, App. § 1630. 15(e). Stated differently, these regulations do not excuse Cardinal from the ADA's requirement that it extend a conditional offer of employment prior to conducting the DOT medical examination and the hemoglobin test.

Cardinal also argues that pre-conditional-offer medical examinations do not constitute a per se violation of the ADA. Not so. To support its argument, Cardinal cites to Prado v. Continental Air Transport Co., Inc., 982 F. Supp. 1304 (N.D. Ill. 1997), in which the District Court for the Northern District of Illinois rejected the plaintiff's argument that "the company committed a per se violation of the ADA by requiring him to undergo a medical exam before making a conditional offer of employment." Id. at 1307 n.1. It did so without citing a single case. Id. This holding has been rejected. EEOC v. Celadon Trucking Servs., Inc., No. 1:12-cv-275, 2015 WL 3961180, at *14 (S.D. Ind. June 30, 2015). In Celadon, the court collected extensive case law to support its conclusion:

Since the ADA itself provides a clear avenue for employers to conduct required medical examinations after conditional offers, there is no conflict between Section 102(d)(2) and the DOT regulations upon which [defendant] justifies its policy. We conclude that the ADA means what it says, and that pre-offer medical examinations—like the ones concededly required by [defendant] of its applicants—violate the statute.

2015 WL 3961180, at *15. Cardinal has not pointed to any persuasive authority supporting its argument to the contrary....