Filed: May 03, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1273 JOHN D. LISOTTO, Plaintiff - Appellant, v. NEW PRIME, INC., d/b/a Prime, Inc., Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:13-cv-02407-MGL) Argued: March 22, 2016 Decided: May 3, 2016 Before SHEDD, THACKER, and HARRIS, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Rebecca Guental Fulmer, L
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1273 JOHN D. LISOTTO, Plaintiff - Appellant, v. NEW PRIME, INC., d/b/a Prime, Inc., Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:13-cv-02407-MGL) Argued: March 22, 2016 Decided: May 3, 2016 Before SHEDD, THACKER, and HARRIS, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Rebecca Guental Fulmer, LA..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1273
JOHN D. LISOTTO,
Plaintiff - Appellant,
v.
NEW PRIME, INC., d/b/a Prime, Inc.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Mary G. Lewis, District Judge.
(3:13-cv-02407-MGL)
Argued: March 22, 2016 Decided: May 3, 2016
Before SHEDD, THACKER, and HARRIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Rebecca Guental Fulmer, LAW OFFICES OF WILMOT B. IRVIN,
Columbia, South Carolina, for Appellant. Reginald Wayne
Belcher, TURNER PADGET GRAHAM & LANEY P.A., Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John D. Lisotto (“Appellant”) filed an Americans with
Disabilities Act (“ADA”) claim against Appellee New Prime, Inc.
(“Prime”) after Prime failed to hire him as a truck driver.
Prime, contending that Appellant should have exhausted his
administrative remedies with the Federal Motor Carrier Safety
Administration (“FMCSA”), moved to dismiss the complaint. The
district court agreed and dismissed the complaint without
prejudice.
The FMCSA regulation upon which the district court
relied contemplates “a disagreement between the physician for
the driver and the physician for the motor carrier concerning
the driver’s qualifications.” 49 C.F.R. § 391.47(b)(2).
However, because the parties did not “disagree[]” about
Appellant’s qualifications at the time Prime denied employment
to Appellant, 49 C.F.R. § 391.47(b)(2) is inapplicable.
Therefore, we vacate the district court’s judgment and remand.
I.
Appellant’s complaint sets forth the following
allegations, which we accept as true. See Johnson v. Am.
Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015).
On August 19, 2010, Appellant, an experienced
commercial truck driver, applied for a driver position with
Prime. Appellant began “trucking” in 1971 and had around seven
2
years’ experience as a long-distance truck driver hauling
gasoline, diesel fuel, and ethanol throughout the United States.
J.A. 6. 1 At the time of his application to Prime, Appellant was
employed as a correctional officer for the South Carolina
Department of Corrections, earning around $30,000 a year.
On August 27, 2010, a recruiter from Prime, Sheryl
Lindsay, sent Appellant an email stating he was approved to
attend Prime’s orientation program in Springfield, Missouri.
Lindsay also explained that as part of the hiring process,
Appellant would be required to pass a physical examination and
drug screen in accordance with FMCSA standards. Lindsay bought
Appellant a one-way bus ticket to Springfield and explained that
after a successful orientation, he would receive his assigned
truck and drive back to South Carolina to work out of Columbia.
Appellant had a sleep disorder “believed to be or
diagnosed as narcolepsy.” J.A. 7. In anticipation of his
physical and drug screen, he obtained a letter from his
physician, Dr. Crook. The letter explained that Appellant took
Dexedrine, a type of amphetamine, to manage the sleep disorder.
Dr. Crook opined “that the prescribed medication would not
adversely affect [Appellant’s] ability to safely operate a
1
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
3
commercial motor vehicle, as [Appellant] had for many years been
driving commercial trucks safely . . . while taking [Dexedrine]
and had experienced no problems with narcolepsy.” Id. at 10-11.
On September 22, 2010, Appellant, having quit his job
with the Department of Corrections, travelled to Springfield for
orientation. He reported for his physical examination and drug
test and explained to Prime’s medical examiner, Dr. Abraham,
that he was taking Dexedrine “to address a condition believed to
be or diagnosed as narcolepsy.” J.A. 10. He gave Dr. Abraham
the letter from Dr. Crook and showed him his prescription for
Dexedrine. Dr. Abraham did not determine that Appellant was
unqualified for the position because he had narcolepsy; rather,
he noted that Appellant “needs to be off Dexedrine at least 1
month.” Id. at 11 (alteration omitted). Dr. Abraham further
noted that Provigil is the “[o]nly med[ication] . . . taken for
narcolepsy” that Prime would accept, and Appellant “need[ed] to
be on it for at least 6 weeks [and] document[] [his] stability”
before beginning employment with Prime.
Id.
Appellant returned to orientation, and about an hour
later, one of Prime’s nurses called Appellant out of his session
and told him “he could not work for Prime because he had tested
positive for amphetamines.” J.A. 11. Echoing Dr. Abraham, the
nurse said Prime would accept truckers taking Provigil, but not
Dexedrine, and instructed him to return home and take Provigil
4
for six weeks to see how it would affect him. Appellant left
Springfield and went back to South Carolina to comply with
Prime’s directives.
Two days later, on September 24, 2010, Prime’s Medical
Review Officer (“MRO”), Dr. Mauldin, phoned Appellant and stated
“he needed to hear from [Appellant’s] doctor about his medical
condition and prescribed medication.” J.A. 11; see also 49
C.F.R. § 40.129(a)(4) (when a drug test result is positive,
before “verify[ing]” the test, an MRO must “conduct a
verification interview [which] must include direct contact in
person or by telephone between [the MRO] and the employee”); 2 id.
§ 40.131(a) (“When . . . the MRO . . . receive[s] a confirmed
positive . . . test result from the laboratory, [he or she] must
contact the employee directly . . . on a confidential basis, to
determine whether the employee wants to discuss the test
result.”). Dr. Mauldin claimed that if he did not hear from
Appellant’s doctor within five days, he would report “a positive
drug test for amphetamines” to the Department of Transportation
(“DOT”). J.A. 11. Appellant called his physician, Dr. Crook,
“right away,” and explained Dr. Mauldin’s request.
Id. Dr.
Crook phoned Dr. Mauldin on September 27, but no one answered
2 The term “employee” includes “applicants for employment
subject to pre-employment testing.” 49 C.F.R. § 40.3.
5
the call. He “persisted in trying to reach Dr. Mauldin but was
never able to reach him or anyone else in his office.” Id. at
20.
On September 27, 2010, Dr. Crook changed Appellant’s
medication to Provigil, and he experienced no detrimental side
effects. On November 1, Appellant called Lindsay and told her
he had complied with Dr. Abraham’s and the nurse’s directives.
Lindsay forwarded the call to Prime’s personnel office, and an
employee in that office told him, “You cannot work for Prime
because you tested positive for amphetamines” and hung up. J.A.
12.
On November 19, 2010, Appellant wrote to Dr. Mauldin,
asking that he “reevaluate the circumstances of the drug test he
had taken during his physical on September 22, 2010.” J.A. 12,
30. Appellant explained,
I am not saying the test was incorrect, it
was correct. However I was under [Dr.
Crook’s] care and he tried to contact your
office numerous times and could not reach
anyone and get an answer. . . .
[Dr. Crook] changed my medication to one
acceptable to your office and the [DOT]
. . . .
Thank you for your consideration. This is
effecting [sic] my career and my livelihood
through no fault of my own.
Id. at 30. Dr. Mauldin finally responded via letter nearly two
months later, on January 12, 2011, stating, “Even though you had
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a prescription for amphetamines, in my opinion you have a
disqualifying medical condition since narcolepsy is a safety
concern.” Id. at 12 (the “Mauldin Letter”).
After receiving the Mauldin Letter, Appellant
participated in a sleep study and learned “that he did not have
narcolepsy but experienced ‘moderate obstructive sleep apnea.’”
J.A. 13. After beginning to use a breathing machine at night,
he no longer needed medication to stay awake. On May 25, 2013,
Appellant wrote to Dr. Mauldin, explaining that he no longer
needed medication, and forwarded the results of the sleep study.
He closed the letter, “[W]ould you please consider clearing my
name so I can drive again!” Id. at 31. He received no
response.
Thereafter, Appellant applied for other truck driving
positions, but he was unable to obtain employment. One employer
told him his company “could not hire him because he had a record
of abusing amphetamines.” J.A. 13. Appellant became homeless
and “suffered extreme emotional distress.” Id. He was
eventually able to obtain another job paying near minimum wage.
After receiving a right-to-sue letter from the Equal
Employment Opportunity Commission, Appellant filed suit in the
District of South Carolina on September 5, 2013. Prime filed a
motion to dismiss, contending: (1) Appellant failed to exhaust
administrative remedies pursuant to 49 C.F.R. § 391.47
7
(providing that the FMCSA resolves “conflicts of medical
evaluation” where “a disagreement [exists] between the physician
for the driver and the physician for the motor carrier
concerning the driver’s qualifications”); and (2) Appellant was
not a “qualified individual” under the ADA, see 42 U.S.C.
§ 12112(a).
On August 28, 2014, the district court adopted the
recommendation of the magistrate judge and dismissed the
complaint without prejudice because Appellant failed to exhaust
administrative remedies as required by 49 C.F.R. § 391.47(b)(2).
The district court declined to address Prime’s argument that
Appellant is not a “qualified individual.” On September 2,
2014, Appellant filed a motion to alter or amend the judgment
pursuant to Rule 59(e) and also asked for stay of the district
court’s decision. The district court denied both requests, and
Appellant filed a timely notice of appeal.
II.
We review de novo the district court’s dismissal of a
complaint. See SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d
412, 422 (4th Cir. 2015). “[W]e accept as true all well-pled
facts in the complaint and construe them in the light most
favorable to [Appellant].” United States v. Triple Canopy,
Inc.,
775 F.3d 628, 632 n.1 (4th Cir. 2015). We must also draw
8
“all reasonable inferences in [Appellant’s] favor.” DeMasters
v. Carilion Clinic, 796 F.3d 409, 421 (4th Cir. 2015).
The magistrate judge and district court both believed
that Appellant’s claim should have first been presented to the
FMCSA because the dispute involved a “disagreement” between Dr.
Crook, Appellant’s physician, and Dr. Mauldin, Prime’s MRO. But
Appellant claims there was no “disagreement”; rather, Prime
discriminated against him because Prime failed to hire him based
on an erroneously verified positive drug test, and “MRO Mauldin
failed to correct his verified positive drug test result and
downgrade it to negative, pursuant to regulatory procedure.”
Appellant’s Br. 20; see also 49 C.F.R. § 40.123(a) (An MRO
“[a]ct[s] as an independent and impartial ‘gatekeeper’ and
advocate for the accuracy and integrity of the drug testing
process.”); id. § 40.137(a) (An MRO “must verify a confirmed
positive test result for . . . amphetamines . . . unless the
employee presents a legitimate medical explanation for the
presence of the drug[] . . . in his or her system.”);
id.
§ 40.123(c) (An MRO “must determine whether there is a
legitimate medical explanation for confirmed positive . . . drug
tests results from the laboratory.”).
We agree with Appellant. First, the complaint can
only be read to lodge an ADA claim based on conduct leading up
9
to Prime’s failure to hire him in November 2010. For example,
Appellant alleges that Prime violated the ADA by
• refusing to hire him, even though he
complied with Dr. Mauldin’s request for
more information regarding his medical
qualifications, and even though that
information showed his narcolepsy had been
under control for many years;
• refusing to hire him because he tested
positive for amphetamines;
• failing to accept his physician’s
explanation for the positive drug test;
• failing to proceed with the hiring process
in light of the information from Dr.
Crook, and insisting he change
medications;
• reporting a positive drug test; and
• failing to correct the false drug test
report made to the FMCSA, DOT, or others.
See J.A. 14-15. Appellant does not allege that Prime failed to
hire Appellant because of the Mauldin Letter, or that Dr.
Mauldin reported his concerns regarding Appellant’s
qualifications to Prime. Therefore, any opinion Dr. Mauldin may
have had about Appellant’s qualifications did not serve as a
basis for Prime’s refusal to hire him.
Having properly framed the basis for Appellant’s
claim, we next observe that in the time leading up to November
2010, there was no “disagreement” about Appellant’s medical
qualifications. There is no question Dr. Crook believed
10
Appellant was medically qualified if he took proper medication.
And the only reasonable inference to be drawn from the complaint
is that Prime did not reject Appellant’s application outright
because he had narcolepsy; rather, Prime anticipated that
Appellant would return to orientation and be considered for
employment once he successfully switched his medication to
Provigil. In fact, Prime told him as much. See J.A. 11
(Dr. Abraham told Appellant he “need[ed] to be on [Provigil] for
at least 6 weeks [and] document[] [his] stability.”); see also
id. (“[T]he nurse [stated] that [Prime] would accept the
medication Provigil, but not Dexedrine.”). Therefore, Dr.
Abraham agreed with Dr. Crook that Appellant was medically
qualified for employment with Prime, as long as he took proper
medication.
Because Appellant’s claim is not based on a
disagreement between physicians, but rather, on Prime’s failure
to hire Appellant due to his positive drug test, cases upon
which Prime relies are of no import. See, e.g., Harris v.
P.A.M. Transp., Inc., 339 F.3d 635, 639 (8th Cir. 2003) (Where
company’s physicians and medical review staff disagreed with a
third party physician’s conclusions that a prospective driver
was medically certified to drive, “[a]ccording to 49 C.F.R.
§ 391.47(b)(2), that disagreement brings the question of [the
driver]’s physical qualification within the sole province of the
11
DOT.”); Campbell v. Fed. Express Corp., 918 F. Supp. 912, 918
(D. Md. 1996) (“In a case where there are conflicting medical
evaluations, such as the conflict [the driver] faced between
[two separate companies’] examination outcomes, the driver may
submit an application for resolution of the conflict to the
[FMCSA].” (emphasis supplied)); Hill v. Houff Transfer, Inc.,
No. 3:12-cv-357,
2012 WL 5194080, at *3 (E.D. Va. Oct. 19, 2012)
(driver’s physician “disagree[d]” with third-party physician
about his qualifications to remain a commercial truck driver,
and thus, “[section] 391.47’s procedures appl[ied]”).
The discrete issue before us is more akin to the issue
presented in Stevens v. Coach U.S.A., wherein a bus driver,
Stevens, took a medical leave of absence from his duties with
Coach, U.S.A. (“Coach”). See 386 F. Supp. 2d 55 (D. Conn.
2005). Stevens’s physician and Coach’s medical examiner both
cleared him to return to work. See
id. at 58-59. But before
Coach allowed him to return on a permanent basis, it “sent him
through a series of hurdles that prevented his medical fitness
from ever being determined.”
Id. at 65. The District of
Connecticut concluded 49 C.F.R. § 391.47(b)(2) was inapplicable
because “the crux of Stevens’ complaint” “cannot be
characterized as ‘a disagreement between the physician for the
driver and the physician for the motor carrier.’”
Id. (quoting
12
49 C.F.R. § 391.47(b)(2)). “[H]urdle[]”-jumping, rather than
medical disagreement, is precisely what happened here.
Id. 3
III.
For the foregoing reasons, we vacate the district
court’s judgment and remand for further proceedings. 4
VACATED AND REMANDED
3 After the district court’s dismissal of the complaint,
FMCSA’s Office of Chief Counsel issued an opinion letter, which,
though not binding on this court, is in accord with our
decision. The letter states that the FMCSA does not have
“provisions for administrative review procedures that would
address [Appellant’s] grievances . . . .” J.A. 79.
Specifically, the FMCSA believed “[t]he record does not contain
evidence of a present conflict concerning [Appellant’s] medical
qualifications . . . .” Id.
4 After oral argument, Appellant filed a motion to
supplement the record on appeal. See Mot. Suppl. R. on Appeal,
Lisotto v. New Prime, Inc., No. 15-1273 (4th Cir. Mar. 22,
2016), ECF No. 44. We deny this motion as moot.
13
