KRISTI K. DuBOSE, District Judge.
This action is before the Court on the Motion for Summary Judgment (Doc. 28) filed under Federal Rule of Civil Procedure 56 by Defendant Metal Services LLC d/b/a Phoenix Services, LLC ("Metal Services"). In support of the motion, Metal Services has filed a memorandum (Doc. 29), evidentiary material (Docs. 30-36), and suggested determinations of undisputed fact and conclusions of law (Doc. 37). Plaintiff Frank L. Toole ("Toole") has timely filed a Response in opposition
Both motions have been taken under submission and are ripe for adjudication. (See Docs. 38, 60). Upon consideration, and for the reasons stated herein, the Court finds that the Motion for Summary Judgment (Doc. 28) and that the Motion to Strike (Doc. 58) are
On March 27, 2013, Toole initiated this action by filing a Complaint (Doc. 1) asserting a cause of action against Metal Services
"The court shall grant summary judgment if the movant 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). Rule 56(c) governs procedures and provides as follows:
Fed.R.Civ.P. 56(c).
A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). As the Eleventh Circuit has articulated, however,
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993) (headings and footnotes omitted).
If a non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In reviewing whether a non-moving party has met its burden, the Court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir.1992) (internal citations and quotations omitted).
ThyssenKrupp InPlant Services ("TKIPS")
Art Hamilton ("Hamilton") began working at TKIPS on February 15, 2011, as a Phoenix Services representative and as the transportation and logistics Site Manager. At the time, TKIPS was having problems
Sometime in March 2011, Toole, who was working at the TK Calvert facility for another company, heard that TKIPS was looking to hire additional safety positions and spoke with Hamilton about the position. (Doc. 56 at 13-14, 19-20 [Hamilton Depo., pp. 54-55, 61-62]; Doc. 31-2 at 24-25 [Toole Depo., pp. 134-137]). At their first meeting, Toole told Hamilton that his current position would be ending soon and told him of his job experience. (Doc. 56 at 43 [Hamilton Depo., p. 104]). At the time, Hamilton "wasn't certain what direction [he] was going to go in" and "was still contemplating what [he] was going to do." (Id. at 43-44 [pp. 104-105]). At their first meeting, Hamilton described his needs to Toole as follows:
(Doc. 56 at 44-45 [Hamilton Depo., pp. 105-06]). In another conversation, Hamilton told Toole that he "needed an enforcer in order to enforce safety, training, pre truck checks, inspections, monitoring the drivers, teaching and training the drivers how to safely do things ..." (Id. at 15 [p. 56]).
Toole applied for a safety position with TKIPS on March 18, 2011. On March 24, 2011, Toole went back to TKIPS's office and spoke with Eric Bayda ("Bayda"), TKIPS' Director of Human Resources, who told him he would mention Toole to Hamilton. Hamilton then walked up, and Bayda told him to hire Toole. (Undisputed Facts, see Doc. 37 at 6, ¶¶ 26-28; Doc. 40 at 5, ¶¶ 26-28). Toole gave Hamilton a copy of his resume, and within thirty minutes Hamilton called Toole back in for an interview with Hamilton, Howard, and Christian Koesling. At this time, Hamilton told Toole that Howard would be his boss, his rate of pay and that he was hired, pending a physical. Toole was told that he would be Hamilton's enforcer of safety rules and would make sure that drivers do pre-inspections of their trucks. Toole did not possess a commercial driver's license (CDL) but was told that none was required. (Doc. 42-1 at 16, 41-44, 80-81 [Toole Depo., pp. 56, 140-144, 238-39]; Doc. 56 at 54 [Hamilton Depo., p. 118]). Toole was not informed at the interview that he would be transporting people, operating equipment, or driving off-site. (Doc. 42-1 at 85-86 [Toole Depo., pp. 243-44]). Toole never saw a written job description for the safety position, nor was
Toole filled out and turned in new-hire paperwork on March 24, 2011, after which he was given forms to take with him to his physical exam at the Industrial Medical Clinic ("IMC") in Mobile, Alabama. Toole went to IMC for his physical that same day and was administered a Department of Transportation ("DOT") medical exam by Dr. William McDowell.
A nurse also took Toole's blood pressure, which measured 160/102. The nurse told Toole this was high and that he would need to make an appointment with a physician to get his blood pressure down. (Doc. 42-1 at 61-62, 106 [Toole Depo., pp. 167-68 & Ex. 27]). Toole's blood pressure results were not recorded in the IMC Medical Examination Report.
Dr. McDowell did not complete Toole's medical exam and told him that he could not do so until Toole obtained a DOT waiver for his vision. (Doc. 42-1 at 63, 104-05 [Toole Depo., p. 169 & Ex. 25]). Dr. McDowell placed Toole's physical on hold due to "BP" of 160/102 and "Monocular vision-will need a waiver." (Doc. 42-1 at 106 [Toole Depo., Ex. 27]). TKIPS's received a copy of Toole's IMC Medical Report, which is stamped "RECEIVED Mar 30 2011" on each page. (Doc. 43 at 78-81).
Toole quickly looked into obtaining a DOT waiver but claims he was informed that he could not get a waiver for his monocular vision if he did not hold a CDL. (Doc. 42-1 at 16, 64, [Toole Depo., pp. 56, 173]).
"The ADA was enacted `to provide a clear and comprehensive national mandate to end discrimination against individuals with disabilities and to bring persons with disabilities into the economic and social mainstream of American life.'" Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1212 (11th Cir.2010) (quoting H.R.Rep. No. 101-485, pt. 2, at 23 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 304). As relevant to this action, the ADA provides that "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
As used in § 12112(a), "the term `discriminate against a qualified individual on the basis of disability' includes ... using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity ..." 42 U.S.C. § 12112(b)(6). Toole appears to rely on § 12112(b)(6) when arguing in support of his Count One discrimination claim. (Doc. 41 at 23). The allegations in Toole's Amended Complaint also support such a claim. (See, e.g., Doc. 7 at 3, ¶ 13 ("The physical examination required of Plaintiff is not job related and had a disparate impact on Plaintiff and other applicants in the same or similar position as Plaintiff.")).
In addition, Toole claims that he was subjected to an improper medical inquiry. "The prohibition against discrimination as referred to in [§ 12112(a)] shall include medical examinations and inquiries." 42 U.S.C. § 12112(d)(1). See also Harrison, 593 F.3d at 1212 ("The A[DA] also restricts an employer's ability to make medical examinations or inquiries that relate to an applicant's disability status. See § 12112(d)."). Pre-employment medical examinations are generally prohibited. 42 U.S.C. § 12112(d)(2). Moreover, a post-employment medical exam is prohibited unless all entering employees are subject to an exam and the results of the exam are not used to discriminate against a qualified individual on the basis of a disability. 42 U.S.C. § 12112(d)(3).
"The burden-shifting analysis of Title VII employment discrimination claims is applicable to ADA claims." Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir.2000). "Under this burden-shifting analysis, [Toole] ha[s] the initial burden of establishing a prima facie case of disability discrimination." Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir.2004). "To establish a prima facie case of disability discrimination, a plaintiff must show that he (1) is disabled, (2) is a `qualified' individual, and (3) was subjected to unlawful discrimination because of his disability." Samson v. Fed. Exp. Corp., 746 F.3d 1196, 1200 (11th Cir. 2014) (published) (citing Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.2007) (citation omitted)) (footnote omitted).
Metal Services challenges Toole's ability to establish a prima facie case of ADA discrimination, arguing that Toole cannot
"[A] `qualified individual' is someone `who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.'" Samson, 746 F.3d at 1200 (quoting 42 U.S.C. § 12111(8) (emphasis added)). Therefore, Toole "must show either that he can perform the essential functions of his job without accommodation, or, failing that, show that he can perform the essential functions of his job with a reasonable accommodation. Thus, if [Toole] is unable to perform an essential function of his []job, even with an accommodation, he is, by definition, not a `qualified individual' and, therefore, not covered under the ADA." Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir.2000) (addressing claim of disability discrimination under the Rehabilitation Act, 29 U.S.C. § 701 et seq., which is "governed by the same standards used in cases brought under the Americans with Disabilities Act ...").
Metal Services argues that Toole is not a "qualified individual" because he did not complete or pass his DOT medical examination, did not request a reasonable accommodation, and was therefore unable to accomplish the essential function of "significant and frequent driving for a variety of job-related reasons[, which] entail driving a wide range of" commercial and non-commercial motor vehicles "on-site and off-site..." (Doc. 29 at 20-21). Toole disputes that driving was an essential function of the job he was offered and/or that the DOT medical examination was necessary to perform an essential function of the job. Toole has put forth undisputed evidence that he was otherwise qualified for the job.
As the Ninth Circuit has cautioned,
Bates v. United Parcel Serv., Inc., 511 F.3d 974, 990 (9th Cir.2007) (en banc). The pertinent question, then, is whether Toole can establish that he can perform the basic duties of the job he was offered. See id. at 992 ("UPS argues that `hearing' at a level sufficient to pass the DOT hearing standard is either a stand-alone essential job function or part and parcel of being a safe driver. This point illustrates the
Regarding what constitutes an "essential function" under the ADA, Samson held:
Id. (citing 42 U.S.C. § 12112(b)(5)(A)) (alteration in original).
746 F.3d at 1200-01.
The judgment of Metal Services — which carries substantial weight — is that driving, on and off site, is an "essential function" of the Safety Trainer position. Specifically, Metal Services states that the "fundamental and essential job functions of the Safety Trainer" included "[d]riving CMVs [commercial motor vehicles] to teach drivers
Toole has presented evidence indicating that there was no "written job description prepared before advertising or interviewing applicants for the [safety]job[,]" or indeed any specific "Safety Trainer" position, at the time Toole applied for it. 29 C.F.R. § 1630.2(n)(3)(ii). Hamilton described the safety position as "new" at the time and admits that he did not have a definite set of duties and responsibilities for the position set out. However, he told Toole that he "needed someone to train and enforce policy, and the pre trip inspections, monitoring the drivers, eliminating the driver error on incidences and property damage[,]" as well as "an enforcer in order to enforce safety, training, pre truck checks, inspections, monitoring the drivers, teaching and training the drivers how to safely do things ..." (Doc. 56 at 15, 44-45 [Hamilton Depo., pp. 56, 105-06]).
None of these duties plainly suggests that driving would be involved, much as Metal Services would have the Court infer that.
Toole also relies on the fact that Preston Howard, Metal Services's only safety employee before Hamilton made the decision to start hiring more safety employees, did not possess a CDL or engage in any on-site driving. See (Doc. 56 at 60 [Hamilton Depo., p. 133]); 29 C.F.R. § 1630.2(n)(3)(vi) (work experience of past employees in the job). Toole also points out that after Toole's job offer was withdrawn, Metal Services hired, at various times, Matt McDaniel, Robert Garrett, and Duwayne Foster for the position of Safety Technician. These individuals were not required to pass a DOT physical or obtain CDLs. See (Doc. 32-3 [Hamilton Decl.]; Docs. 52-54); 29 C.F.R. § 1630.2(n)(3)(vii) (the current work experience of employees in similar jobs). Thus, a reasonable person could infer that driving was not an essential function of the safety position.
Upon consideration, the Court finds that Toole has presented sufficient evidence creating a genuine issue of material fact as to whether driving was an "essential function" of Toole's safety position.
Metal Services asserts Toole cannot show that he was unlawfully discriminated against due to his disability because "he has not established that the decisionmaker, Art Hamilton[], knew that he had monocular vision when the job offer was withdrawn..." (Doc. 29 at 3. See also id. at 27 (Toole "has failed to establish that Hamilton had actual knowledge that he had monocular vision at the time he withdrew the offer.")). In support, Metal Services cites to Toole's testimony "that Hamilton told him that he could not hire him, because he failed the vision part of his exam[,]" to which Toole "said nothing in response and had no other conversations with any TKIPS employee about his medical exam or his job." (Doc. 29 at 28 (citing Doc. 31-2 at 33-36 [Toole Depo., pp. 175, 180-81, 191-92])).
"[I]t is evident that an employee cannot be fired `because of' a disability unless the decisionmaker has actual knowledge of the disability[,]" as "`[d]iscrimination is about actual knowledge, and real intent, not constructive knowledge and assumed intent.'" Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1183, 1185 (11th Cir. 2005) (quoting Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1262 (11th Cir. 2001)). Accord Howard v. Steris Corp., 550 Fed.Appx. 748, 751 (11th Cir.2013) (unpublished). In addition, "[v]ague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA." Morisky v. Broward Cnty., 80 F.3d 445, 448 (11th Cir.1996) ("[Plaintiff] relies upon the information furnished, that she could not read and had taken special education courses, as sufficient to put Broward County on notice of her developmental disorder. While illiteracy is a serious problem, it does not always follow that someone who is illiterate is necessarily suffering from a physical or mental impairment.").
Toole points out that TKIPS received the IMC Medical Report on March 30, 2011, on page 10 of which Toole had marked "Yes" to having monocular vision (though on page 9, he marked "No" to having "eye disorders or impaired vision (except corrective lenses)"). (Doc. 43 at 78-79). Toole also asserts that, other than the Medical Report, "there is no other evidence of record as to how Hamilton would have known of the vision exam failure[,]" again pointing out that this was Hamilton's stated reason for not hiring Toole. (Doc. 41 at 32). In reply, Metal Services argues that "Toole's IMC medical report was stamped received `March 30, 2011' by an unidentified TKIPS employee" and that such receipt, standing alone, cannot impute actual knowledge of Toole's monocular vision to Hamilton, as "[t]here is no record evidence that Hamilton read the report, and there is no record evidence that Toole told Hamilton he had monocular vision." (Doc. 61 at 13). Metal Services
Drawing all reasonable inferences in favor of Toole, the Court concludes that he has presented sufficient evidence creating a genuine issue of material fact as to whether Hamilton knew of his monocular vision. A reasonable juror, presented with evidence that 1) TKIPS received the Medical Report indicating that Toole had monocular vision, 2) that Hamilton was indisputably awaiting the results of Toole's physical before making a hiring decision, and 3) that Hamilton said Toole failed the vision test, could reach the conclusion that Hamilton learned of Toole's disability prior to deciding not to hire him for the safety position. Unlike the employers in the cases to which Metal Services cites, there is evidence contradicting Hamilton's statement of lack of knowledge. Cf. Cordoba, 419 F.3d at 1174 ("As operations manager, Groo had very little contact with Cordoba and averred that she `had absolutely no inkling ... Cordoba had any health problems.' Cordoba produced no evidence that directly contradicted Groo's testimony ... We agreed with the district court that `an employer cannot be liable under the ADA for firing an employee when it indisputably had no knowledge of the disability,' and that Cordoba had failed to show that Groo, the relevant corporate decisionmaker, was aware of her alleged disability."); Silvera, 244 F.3d at 1261-62 ("There was a conflict in the evidence about whether Silvera told Wright about his prior arrests during his 1982 job interview. Silvera indicated that he did, Wright's sworn statement insisted that he did not. For purposes of deciding whether the Board was entitled to judgment as a matter of law, the district court quite properly resolved that conflict in the evidence in favor of Silvera and took it as fact that Wright knew about those two arrests. But the court went beyond that by imputing Wright's knowledge to the Board and reasoning that if the Board constructively knew of Silvera's lewd assault arrest when it hired him in 1982, the Board's stated reason that it fired Silvera in 1996 for that same arrest must have been pretextual, or at least a jury could so find. []We disagree. To begin with, there is no evidence at all that Wright actually told the Board anything about Silvera's arrest. His sworn statement indicated that he did not. The district court overcame that obstacle to a judgment for Silvera by simply imputing the knowledge Wright had to the Board. Doing that was error, because it equates constructive knowledge with actual intent."); Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 794, 800 (11th Cir.2000) ("Nelson testified in his deposition that when he decided to terminate Brungart,
Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1212 (11th Cir.2010).
Metal Services argues that § 12112(d)(3) — covering the "post-offer but pre-employment" application phase, see Harrison, 593 F.3d at 1212 — applies to Toole's "improper medical inquiry" claim asserted in Count II. (see Doc. 29 at 18, § IV.A.). Section 12112(d)(3) provides:
Metal Services asserts "[i]t is undisputed... that TKIPS hired [Toole] prior to sending him to IMC for his DOT physical"
In support of its argument that Toole should be treated a "post-offer but pre-employment" applicant subject to § 12112(d)(3), Metal Services notes Toole agreed at deposition that Hamilton "told [him he] was hired pending the physical" and that he was "even given new-hire paperwork to fill out." (Doc. 31-2 at 26, pp. 141, 144). On March 24, 2011, Toole filled out and turned in to TKIPS an I-9 "Employment Eligibility Verification" Form, an Internal Revenue Service W-4 Form, an Alabama Department of Revenue A-4 "Employee's Withholding Exemption Certificate," direct deposit authorization forms, an "Affirmative Action & Vet's 100 Employment Survey," and insurance benefit documents. (Id. at 27-28 [pp. 145-150], 64-74 [Exs. 15-20]). That same day, Toole also signed a form entitled "Non-Disclosure/Non-Competition and Invention Assignment Agreement," which stated in the first paragraph: "I am being offered and I am accepting employment with ThyssenKrupp InPlant Services, LLC..." (Id. at 27 [p. 145], 59-63 (Ex. 14)). After turning in the filled-out paperwork to a secretary, Toole was given forms for his Industrial Medical Center physical. (Id. at 28 [pp. 150-51], 75-76 [Ex. 22]
In response to this argument, Toole asserts that it is § 12112(d)(2) — covering the "pre-offer" application phase, see Harrison, 593 F.3d at 1212 — that applies to Toole's "improper medical inquiry" claim.
Harrison, 593 F.3d at 1212. However, this assertion is not supported by sufficient evidence and is clearly contradicted by Toole's deposition testimony. Accordingly, the Court finds that the standard to be applied is the post-offer standard.
But even with a finding, as a matter of law, that Toole was a "post-offer but pre-employment" applicant under § 12112(d)(3), Metal Services has failed to demonstrate that it is due summary judgment as to this claim. Specifically, Metal Services has failed to demonstrate that there is no genuine issue of material fact that "the results of such examination are used only in accordance with" the ADA subchapter governing employment, as required by § 12112(d)(3)(C). As set forth supra, there is a genuine issue of material fact regarding whether Metal Services's requirement of the DOT medical examination
Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir.2004) (citations omitted).
Metal Services argues that it "has articulated legitimate, non-discriminatory reasons for the withdrawal of [Toole's] job offer, namely (1) he failed the vision portion of his DOT physical, and (2) he did not complete the actual physical portion of that exam." (Doc. 29 at 29).
However, as Toole correctly points out, these are arguably not "non-discriminatory" reasons. Under the ADA, "`discrimination against a qualified individual on the basis of disability' includes ... using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity ..." 42 U.S.C. § 12112(b)(6).
Metal Services's requirement of the DOT medical examination is a "qualification standard" that "tend[s] to screen out an individual with a disability or a class of individuals with disabilities ..." See Samson, 746 F.3d at 1203-05. Moreover, Metal Services' reasons clearly show that "but for" Toole's failure to complete and pass the exam, he would have been hired. Thus, Metal Services's reasons constitute impermissible discrimination unless Metal Services meets is burden to show that the requirement to complete and pass the DOT physical exam was job related and consistent with business necessity.
The ADA "prohibit[s] an employer from applying a qualification standard that screens out or tends to screen out disabled persons." Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1316 (11th Cir.2009) (per curiam) (citing 42 U.S.C. § 12112(b)(6)). However, the ADA "also afford[s] an employer an affirmative business-necessity defense to claims challenging the application of an otherwise problematic standard." Id. (citing 42 U.S.C. § 12113(a)). Section 12113(a) states: "It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been
This defense also applies to claims of improper medical examination or inquiry. See Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306 (11th Cir.2013), cert. denied, ___ U.S. ___, 134 S.Ct. 655, 187 L.Ed.2d 449 (2013); 29 C.F.R. § 1630.14(b) ("A covered entity may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of disability ... [I]f certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation as required in this part."). "To benefit from the affirmative defense, an employer must prove that the pertinent qualification standard is job-related and consistent with business necessity ... [T]his burden is generally quite high..."
The Eleventh Circuit has noted:
Id. Accord Owusu-Ansah, 715 F.3d at 1311.
The crux of Metal Services's argument in this regard is that the DOT medical exam, particularly the vision test, is an acceptable and reasonable gauge of an employee's ability to drive safely and operate large equipment in general. See, e.g., Doc. 29 at 22 ("A DOT physical is a fitting test for safety sensitive jobs that involve driving, because it tests specific conditions related to safe driving.")).
"Measures demonstrably necessary to meeting the goal of ensuring worker safety are []deemed to be `required by business necessity' under Title VII." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1119 (11th Cir.1993); Allmond, 558 F.3d at 1317 n. 6 ("In defining the scope of the affirmative business-necessity defense under the Rehabilitation Act and the ADA, we look to cases analyzing the defense
Upon consideration of the evidence as outlined supra, the Court finds that there are issues of material fact to be resolved as to whether Metal Services has demonstrated having Toole complete a DOT medical examination is both "job-related and consistent with business necessity" to ensure the safety of both Toole and others.
Moreover, the Court finds that Toole has presented sufficient evidence of a reasonable accommodation; specifically, that had he been allowed to take a standard non-DOT medical examination, he would not have been automatically disqualified on the basis of his monocular vision. (See Doc. 46 at 19-20 [Dr. McDowell Depo., pp. 83-84
Contemporaneous with his Response to the motion for summary judgment, Toole filed a motion to strike (Doc. 58) certain expert testimony submitted as evidence by Metal Services.
In accordance with the foregoing analysis, it is
Toole alleges, and Metal Services does not dispute, that he has satisfied all administrative prerequisites prior to bringing this ADA action. See (Doc. 7 at 1-2, ¶ 2; Doc. 25 at 2, ¶ 2); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) ("We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling."); McClinton v. Alabama By-Products Corp., 743 F.2d 1483, 1485 (11th Cir.1984) (holding that ADEA "notification requirement is not a jurisdictional prerequisite that deprives a court of subject matter jurisdiction, but a requirement more in the nature of a statute of limitations that is subject to equitable tolling").
In addition, the Eleventh Circuit has recognized that a plaintiff has a private right of action under 42 U.S.C. § 12112(d)(2), see Harrison, 593 F.3d at 1214, and § 12112(d)(4), see Owusu-Ansah, 715 F.3d at 1311, irrespective of his disability status. The Court finds no reason to believe this reasoning should not apply to § 12112(d)(3), and no party has advanced such an argument.
N. Assur. Co. of Am. v. C & G Boat Works, Inc., Civ. A. No 11-00283-KD-N, 2012 WL 1712594, at *5 & n. 5 (S.D.Ala. May 15, 2012) (DuBose, J.).
