Richard G. Kopf, Senior United States District Judge
Plaintiff Robert Parker alleges that his former employer, defendant Crete Carrier Corporation ("CCC"), discriminated against him under the Americans with Disabilities Act ("ADA") by requiring him, and all CCC truck drivers with a "body mass index" of 33 or above, to undergo a sleep study as a condition of continued employment; by asking Parker if he used a certain medical device used to treat obstructive sleep apnea; and by regarding Parker as having an impairment, all of which resulted in CCC taking Parker "out of service" when he refused to comply with CCC's medical-examination requirement.
Parker has filed a motion for partial summary judgment on liability only
For purposes of the pending motions for summary judgment, these facts are undisputed:
1. Defendant Crete Carrier Corporation ("CCC") is a domestic corporation duly formed and subsisting under the laws of the State of Nebraska. (Filing 1-2, Complaint ¶ 6.) CCC is an over-the-road trucking company based in Lincoln, Nebraska,
2. Working as an over-the-road truck driver is a demanding job with great responsibility. Drivers are entrusted with powerful equipment and valuable cargo while traveling on the same roadways as the general public. (Filing 54-8, Aff. Raymond Coulter ¶ 4.)
3. On or about July 3, 2006, CCC hired plaintiff Robert J. Parker as an over-the-road truck driver. (Filing 44-1, Aff. Robert J. Parker ¶ 3.) Throughout Parker's employment, he held the position of truck driver and trainer based out of North Platte, Nebraska. (Filing 44-1, Aff. Robert J. Parker ¶ 4.)
4. In 2012, CCC gave Parker an award entitled "FIVE YEARS ACCIDENT FREE DRIVING — In the finest tradition of Professional Driving." (Filing 44-1, Aff. Robert J. Parker ¶¶ 5-6; Filing 43-1, Ex. A.) That year, CCC also named Parker its top trainer. (Filing 44-1, Aff. Robert J. Parker ¶ 7.)
5. CCC's drivers, including Parker, are required to meet the minimum qualification requirements with respect to physical qualifications and examinations of drivers of CMVs in interstate commerce. (Filing 54-8, Aff. Raymond Coulter ¶ 6 (citing 49 C.F.R. § 391.41, et seq. ("DOT regulations")).) Parker concedes that he was required to maintain certification under the DOT regulations and that CCC was entitled to impose more stringent safety standards, but only if those standards were not in violation of the ADA. (Filing 69, Pl.'s Br. Opp'n Def.'s Mot. Summ. J. at CM/ECF p. 28.)
6. On June 11, 2012, Parker participated in a Commercial Driver Fitness Determination examination administered by the Cheryl Hunt, APRN. (Filing 44-1, Aff. Robert J. Parker ¶ 26; Filing 43-4.) Hunt found that Parker met the standards in 49 C.F.R. § 391.41 and qualified for a two-year certificate. At this visit, Parker's height was recorded at 6'5` and his weight at 296 pounds, making his body mass index
7. CCC's drivers are also required to comply with CCC's legal policies and procedures, including, but not limited to, CCC's Department of Transportation Physical Policy. (Filing 54-8, Aff. Raymond Coulter ¶ 7.) CCC's "sleep apnea policy and program" provides that "Drivers who have a Body Mass Index (BMI) of 33 or greater as determined from the DOT physical completed by a Company physician may be required to complete a sleep study." (Filing 54-14 at CM/ECF p. 10.) Parker acknowledged that he received notice of, and agreed to abide by, this policy on April 27, 2011. (Filing 54-14 at CM/ECF pp. 10-12.)
8. Under CCC's sleep apnea program, a driver meeting the selection criteria is routed to one of CCC's sleep study locations for testing. After undergoing the study, a board-certified physician may make a diagnosis of [obstructive sleep apnea ("OSA")] or another sleep disorder which may require treatment. A diagnosis of OSA may disqualify a driver from operating a CMV unless the condition is appropriately treated. (Filing 54-1, Aff. Timothy Aschoff ¶¶ 24, 25.)
9. CCC's sleep apnea program took more than three years to fully implement across the country due to the significant
10. CCC's stated purpose of its sleep apnea policy is "to comply with the DOT regulations prohibiting the certification of a driver with a disqualifying condition, i.e., respiratory dysfunction, and to address the significant safety concerns associated with OSA and fatigued drivers of CMVs." (Filing 54-1, Aff. Timothy Aschoff ¶ 20.) CCC implemented its sleep apnea program in reliance on DOT regulations and recommendations by the Federal Motor Carrier Safety Administration. (Filing 54-1, Aff. Timothy Aschoff ¶ 5.)
11. CCC is not aware of any occasion when Parker has fallen asleep while driving or working. (Filing 44-1, Aff. Robert J. Parker ¶ 9.)
12. On or about July 2, 2013, terminal manager Russ Gerlach called Parker and asked him if he used a CPAP
13. Upon Gerlach's request that Parker submit to a sleep study, Parker visited his regular medical provider. (Filing 44-1, Aff. Robert J. Parker ¶ 19.)
14. On July 11, 2013, Parker's medical provider, Jill McAdams PA-C
15. Both witnesses designated as "experts" in this case agree that a person's BMI is strongly associated with obstructive sleep apnea. (Filing 54-13, Dep. Jill McAdams
16. Based on his education, clinical training, research, experience, and review of documents provided to him, Dr. Schwab opines that:
(Filing 54-11, Dr. Richard J. Schwab Report.)
17. Believing that CCC's requirement that Parker undergo a sleep study to be unlawful, Parker objected to taking the sleep study and refused to do so on July 28, 2013. (Filing 44-1, Aff. Robert J. Parker ¶¶ 14-15; Filing 54-8, Aff. Raymond Coulter ¶ 11.)
18. Apart from CCC's overall concerns of OSA and fatigued driving among its drivers with BMIs of 33 and above, there was no medical or other concern solely applicable to Parker that prompted CCC to request that Parker undergo a sleep study. (Filing 44-1, Aff. Robert J. Parker ¶¶ 16-17.)
19. Parker admits that he does not have a disability or a substantially limiting impairment, nor has he ever been diagnosed with sleep apnea. (Filing 44-1, Aff. Robert J. Parker ¶¶ 10, 18.)
20. Raymond Coulter, Vice-President of Safety and Compliance at CCC, called Parker and told him if he would not submit to the sleep study, he would be out of service and assigned no hours. (Filing 44-1, Aff. Robert J. Parker ¶ 24; Filing 54-8, Aff. Raymond Coulter ¶ 14.)
21. On July 22, 2013, Jill McAdams PA-C gave Parker a prescription indicating that "I do not feel it is medically necessary for [the plaintiff] to have a sleep study." (Filing 44-1, Aff. Robert J. Parker ¶¶ 20, 21; Filing 43-3.)
22. After July 28, 2013, CCC stopped giving Parker work and placed him "out of service" due to his unwillingness to comply with CCC's sleep apnea program by undergoing the requested testing. (Filing 54-8, Aff. Raymond Coulter ¶ 14; Filing 44-1, Aff. Robert J. Parker ¶¶ 22, 23.) Parker was on personal leave with CCC until October 4, 2013. (Filing 54-8, Aff. Raymond Coulter ¶ 21.) On October 2, 2013, CCC learned that Parker had been employed with another entity since August 26, 2013, leading CCC to conclude that Parker had resigned his position. (Filing 54-8, Aff. Raymond Coulter ¶ 22.)
23. Parker has continued to drive a truck for other employers. (Filing 44-1, Aff. Robert J. Parker ¶ 25.)
24. On June 10, 2014, Parker participated in a Commercial Driver Fitness Determination examination administered by Cheryl Hunt, APRN. (Filing 44-1, Aff. Robert J. Parker ¶ 27; Filing 43-5.) Hunt found that Parker met the standards in 49 C.F.R. § 391.41 and qualified for a two-year certificate. Hunt noted, "No concerns with Health History. No Limitation. No medications." (Filing 43-5.)
Parker objects to the admissibility of Dr. Schwab's expert report based on Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). "The opinion of a qualified expert witness is admissible if (1) it is based on sufficient facts or data, (2) it is the product of reliable principles and methods, and (3) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702." Kuhn v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir.2012). By virtue of his specialized knowledge in the field of obesity and obstructive sleep apnea, his creation and review of a significant amount of peer-reviewed scientific literature, his extensive training in the field, and his observations in reading 700 sleep studies annually qualify Dr. Schwab as an expert for purposes of this case and provide more than adequate foundation for Dr. Schwab's opinions cited above. Parker argues that there may be studies supporting a contrary position, "but it is not the province of the court to choose between the competing theories when both are supported by reliable scientific evidence." Kuhn, 686 F.3d at 633. (Filing 51, Pl.'s Br. Supp. Mot. Limine at CM/ECF p. 5.)
Further, I can consider Dr. Schwab's report since Parker had an opportunity to depose him when he was identified as an expert, but did not do so. (Filing 19 (Certificate of Service indicating service of Defendant's expert witness disclosures on Plaintiff on March 2, 2015).) DG&G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576 F.3d 820, 827 (8th Cir.2009) (court can consider expert's report
Because of her alleged lack of education, training, and experience, CCC objects to the opinion testimony of Parker's designated "expert" witness, Jill McAdams PA-C, regarding sleep apnea, driver fatigue, CCC's sleep apnea program, and the medical necessity for Parker to undergo a sleep study. (Filing 57.) McAdams received her master's degree in physician assistant studies from the University of Nebraska Medical Center in 1994, and has practiced since that time. McAdams testified by deposition that she does not "hold [her]self out as an expert on sleep apnea," nor did she submit an expert report or a CV. While clearly not an "expert" on sleep apnea, McAdams was Parker's treating medical provider and is qualified to provide information about Parker's examination, prescriptions, and medical history, as well as medical information she knows from her education, training, and experience as a physician's assistant. Further, since the time she examined Parker, McAdams has become certified to perform DOT examinations of CMV drivers, enabling McAdams to testify about the requirements of those examinations and how OSA relates to DOT regulations.
Finally, in its summary judgment briefs, Parker's counsel objects to the admissibility of several paragraphs
The Americans with Disabilities Act, as amended, prohibits discrimination "against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a) (Westlaw 2015). Such discrimination includes "medical examinations and inquiries." § 12112(d)(1). Specifically, the ADA provides:
§ 12112(d)(4)(A). "This provision applies to all employees, regardless of whether the employee has an actual disability."
Most case law interpreting this provision involves medical testing of employees who have exhibited symptoms or behaviors that cause their employers to question the individual employees' fitness to perform their jobs. Here, in contrast, we have a broad, mandated medical-examination policy applicable to a defined class of employees — those with a BMI of 33 or greater. Conroy, 333 F.3d at 97 (noting lack of case law regarding the "business necessity" of generally applicable policies as opposed to individual inquiries); E.E.O.C. v. United States Steel Corp., Civil Action No. 10-12, 2013 WL 625315, at *13 (W.D.Penn. Feb. 20, 2013) ("almost all cases involving § 12112(d)(4)(A) address claims of specific individuals who were forced to undergo medical testing instead of a broad mandate that was generally applicable as to a subset of employees"); Wice v. Gen. Motors Corp., No. 07-10662, 2008 WL 5235996, at *3 (E.D.Mich. Dec. 15, 2008) ("Relatively little case law exists regarding the proper interpretation of `business necessity' in [the] context [of policies requiring periodic medical examinations for a class of employees].")
Despite the relatively few cases analyzing broadly applicable medical-examination policies under section 12112(d)(4)(A), some general principles of law have emerged that may be applied in the context involved here.
The question of whether a medical examination or inquiry is job-related and consistent with business necessity is an objective one. Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014); Tice v. Centre Area Transp. Auth., 247 F.3d 506, 518 (3rd Cir.2001).
Thomas, 483 F.3d at 527.
"Business necessity" under section 12112(d)(4)(A) of the ADA includes public and workplace safety. Thomas, 483 F.3d at 527 (considering employer's need "to ensure the safety of the public" in examining whether employer's request for employee's fitness-for-duty psychological examination was job-related and consistent with business necessity under ADA); Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir.2010) (prophylactic psychological examinations of employees "can sometimes satisfy the business necessity standard, particularly when the employer is engaged in dangerous work"; legitimacy of fitness-for-duty examination "is heavily colored by the nature of [the plaintiff's] employment"); Conroy, 333 F.3d at 98 (legitimate business necessity may include
After careful review of the evidence, and keeping in mind the standard of review applicable to motions for summary judgment
The physician witnesses for both Parker and CCC have established that a person's body mass index is strongly associated with obstructive sleep apnea, and that OSA would qualify as a "respiratory dysfunction" under the DOT regulations governing physical qualifications and examinations of drivers of commercial motor vehicles in interstate commerce. Such regulations include 49 C.F.R. § 391.41(b)(5), which provides, in part, that "A person is physically qualified to drive a commercial motor vehicle if that person ... [h]as no established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with his/her ability to control and drive a commercial motor vehicle safely."
Obviously, CCC's sleep apnea policy is heavily related to the ability of its drivers to lawfully continue to drive under DOT regulations, and is thus "job-related" under 42 U.S.C. § 12112(d)(4)(A).
CCC has a vital interest in maintaining the safety of its employee-drivers, the cargo CCC carries for its customers, and the public who travels alongside CCC drivers daily. The potential danger posed by a truck driver asleep at the wheel "is obvious and undisputed." New York City Transit Auth., 341 F.Supp.2d at 450 (discussing unfit bus operators). Indeed, Parker himself admits that driver fatigue is strongly associated with increased risk of motor vehicle accidents. (Filing 66.)
The evidence filed in conjunction with the parties' motions for summary judgment establishes that OSA can cause driver fatigue; the biggest predictive factor of OSA is obesity; obesity can be objectively measured by calculating one's BMI; and
Finally, and as discussed above, many courts have held that public and workplace safety constitute "business necessity" under section 12112(d)(4)(A) of the ADA, particularly when the employee's job directly impacts the public, as is the case here.
Based on CCC's knowledge of DOT regulations, Federal Motor Carrier Safety Administration recommendations, and obvious safety concerns associated with OSA and fatigued drivers of commercial vehicles, CCC had sufficient objective evidence upon which it could determine that requiring its drivers with a BMI of 33 or above to submit to a sleep study was job-related and consistent with business necessity within the meaning of the ADA, and a reasonable jury could not find otherwise. Further, since the inquiry about whether Parker used a CPAP machine was made at the same time as Parker was instructed to submit to a sleep study, the inquiry did not violate 42 U.S.C. § 12112(d)(4)(A), as it was inextricably intertwined with the discussion between Parker and his supervisor about the required (and permissible) sleep study.
Because CCC has made a showing of job-relatedness and business necessity of its inquiry and medical-examination request, and Parker has failed to rebut that showing, Parker's claim under 42 U.S.C. § 12112(d)(4)(A) must fail, and summary judgment must be granted in favor of CCC on this claim.
An individual is regarded as having a disability if he or she has been discriminated against "because of [a] ... perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3)(A). Absent direct evidence of disability discrimination, "regarded-as" disability claims are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Norman v. Union Pac. R.R. Co., 606 F.3d 455, 459 (8th Cir.2010). Assuming, without deciding, that Parker could make a prima facie showing of perceived disability discrimination, CCC has demonstrated a legitimate, non-discriminatory reason for taking Parker out of service — that is, his refusal to comply with company policy by undergoing a sleep study based on his BMI, as measured at a standard, mandatory DOT certification medical examination given to all CMV drivers. As discussed above, taking Parker out of service was a consequence of not complying with CCC's narrowly defined sleep apnea policy that
IT IS ORDERED:
1. Plaintiff's motion for partial summary judgment on liability only (Filing 42) is denied;
2. Defendant's motion for summary judgment (Filing 52) is granted;
3. To the extent the court has cited and relied on the expert report of Richard J. Schwab, Plaintiff's motion in limine (Filing 49) to exclude such testimony is denied;
4. To the extent the court has cited and relied on the testimony of Jill McAdams PA-C, Defendant's motion in limine (Filing 57) is denied;
5. Judgment in favor of Defendant and against Plaintiff shall be entered by separate document.