MARSHA J. PECHMAN, Senior District Judge.
The above-entitled Court, having received and reviewed:
all attached declarations and exhibits; and relevant portions of the record, rules as follows:
IT IS ORDERED that Plaintiff's motion for partial summary judgment is PARTIALLY GRANTED and PARTIALLY DENIED; Defendants' affirmative defenses are withdrawn or stricken with the exception of failure to mitigate and failure to participate in the interactive process.
IT IS FURTHER ORDERED that Defendants' motion for summary judgment is DENIED.
Plaintiff was employed by Defendant FedEx Freight ("FXF") as a driver. Under the regulations (Federal Motor Carrier Safety Act; "FMCSA") which govern the industry, drivers must be medically qualified to drive, which they establish by periodic physical examination. Interestingly, FXF does not controvert Plaintiff's representation that he self-identified as disabled when he applied for the job (Dkt. No. 61-5, Goldstine Depo at 2-3). The company simply observes: "This form is not reviewed by the Service Center." Dkt. No. 61, Def Motion at 5.
Plaintiff was medically qualified to drive on February 2, 2017, but the qualification was only valid for three months (the examining doctor was concerned about Plaintiff's glucose levels and wanted him to return in three months for a re-check of his blood sugar). (Dkt. No. 61-2, Ex. 1.) Plaintiff then underwent a follow-up Department of Transportation ("DOT") physical on March 9, 2017 which qualified him for one year. At the time of the February exam, he disclosed a "right knee" condition.
On April 6-7, 2017, Plaintiff was assigned a run from the FXF depot in Everett, Washington to the Portland, Oregon Service Center. The assignment required him to drive a trailer with a broken (uncloseable) door.
FXF asserts that, based on Plaintiff's disclosure of his (allegedly undisclosed) physical limitation, it was required to insist on a new physical exam to confirm that he was medically qualified to perform his duties; Defendant cites to 49 C.F.R. § 391.11(a) as mandating the examination.
Plaintiff reports that he was required to submit a written report about the incident (which he did), was "medically de-certified," de-activated and required to be medically re-certified before returning to work. (Decl. of Wong, Ex. B.) He alleges that the Service Center Manager (Applesland) told him that he (Plaintiff) had stated "he could not do his job because of his disability," a statement which Plaintiff denies making. Decl. of Goldstine, ¶¶ 39-41.
On April 13, 2017, Plaintiff underwent another DOT physical. He claims he was recertified (Dkt. No. 66, Plaintiff's Response at 5); Defendant alleges that "the DOT physician refused to sign the physical exam report." Motion at 3-4.
Plaintiff reports an April 18, 2017 meeting with FXF's Employee Relations Advisor (Tayman) and his Operations Supervisor where he was accused of withholding information regarding his "disability" and informed that FXF would not accept the results of the April 13 physical. Plaintiff clearly believes that he informed the examining physician about his physical limitations; Defendant just as clearly believes that (prior to a later physical in June) Plaintiff had
Plaintiff alleges that he was also advised by Tayman that she would get back to him regarding other work he could do, but that he was never contacted again about an interim accommodation. Decl. of Goldstine at ¶¶ 46-50. Plaintiff submitted a copy of FXF's Reasonable Accommodation Procedures (Decl. of Wong, Ex. C), which he asserts (and Defendant FXF does not deny) were not followed.
On April 27, Plaintiff alleges that he was advised that he was not to appear at the Everett Service Center while "the investigation" was ongoing. Goldstine Decl. at ¶¶ 55-56.
On June 5, Plaintiff filed a discrimination complaint against FXF with the Washington State Human Rights Commission ("HRC"). On June 15, Plaintiff was examined again. Defendant alleges that there were problems with the paperwork (i.e., that the examining physician did not complete the required "Federal Form" per 49 C.F.R. § 391.43
Plaintiff states that, having been out of work for three months, he took another job on July 8. (Goldstine Decl. at ¶ 63.) (Defendant claims that he took the job before the June physical exam "was completed" (Motion at 3-4), but their citation to that evidence is not in the exhibits they submitted; it is possible that FXF means that Plaintiff took the job before July 25 when the Federal Form was finally submitted.)
On August 10, Defendant terminated Plaintiff's employment for "Violation of Leaves of Absence policy for failure to return from leave." Wong Decl., Ex. I.
Defendant's Answer lists 13 "affirmative defenses:"
Dkt. No. 20, Answer at 10-11. Defendant voluntarily withdraws Numbers 1-6. (Dkt. No. 64, Defendant Response at 2.)
FXF first attacks the motion on procedural grounds, arguing that it is improperly filed as a summary judgment and should instead have been brought as a FRCP 37 motion to compel.
Plaintiff relies on Defendant's discovery responses and Rule 30(b)(6) testimony to establish the "undisputed facts" regarding FXF's asserted affirmative defenses and the resulting absence of evidence to support those defenses. Following Defendant's withdrawal of Affirmative Defenses 1-6, the remaining defenses are discussed infra.
Defendant presents no legal authority that "adoption of anti-discrimination and anti-retaliation policies" is a defense to claims of discrimination and retaliation, and concedes that "`good faith' is not an affirmative defense." Response at 8. RULING:
Again, Defendant cites no authority that these are "affirmative defenses" and responds to Plaintiff's motion by arguing that "the burden is on plaintiff to demonstrate that the employer acted with malice or reckless disregard."
RULING:
Defendant asserts again that "plaintiff always has the burden to show the elements required for the imposition of punitive damages." In other words, this is not an affirmative defense.
RULING:
Defendant's answer clearly alleges that, to the extent that Plaintiff seeks punitive damages, it is a violation of the rights listed above. Plaintiff's motion argues that, while the Washington Law Against Discrimination ("WLAD") does not permit recovery of punitive damages, the Americans with Disabilities Act ("ADA") does. FXF responds to this argument as follows:
RULING:
The parties agree that failure to mitigate
RULING:
Defendant cites the same evidence it intends to adduce to prove failure to mitigate (basically, Plaintiff's alleged failure to respond to FXF's calls to return to work) to argue that Plaintiff also failed to participate in the interactive process required to ascertain whether any accommodations are available for a disability. While simply calling an employee and asking them to return to work is not strong evidence of an interactive process intended to address issues of disability and reasonable accommodation, the Court cannot say that Plaintiff is entitled to a ruling as a matter of law.
RULING:
This appears to be simply a catch-all, "in case we think of anything else" provision. Defendant does not even argue that it should not be dismissed. RULING:
In support of its argument that it was required to "decertify" Plaintiff as a qualified driver following the April 6 incident, Defendant cites the FMCSA regulations that prohibit a motor carrier from allowing a driver to operate a commercial vehicle if the motor carrier has reason to believe that a driver suffers from an impairment which undermines his ability to operate a commercial vehicle safely. 49 C.F.R. § 392.3.
49 C.F.R. § 391.11.
Finally, regarding its requirement that Plaintiff re-certify himself following the April 6 incident, FXF cites 49 C.F.R. § 391.45:
FXF's primary defense is that its obligation to comply with the FMCSA overrides the application of the ADA and renders the company immune to claims of disability discrimination. Citing
The Court agrees with Plaintiff that his disability discrimination claims must be analyzed under the "burden-shifting" framework of
Nor is the Court persuaded that Defendant has established a "legitimate, non-discriminatory" reason for either de-certifying Plaintiff or keeping him from working for the period of time it did on the grounds which it cited. Plaintiff has presented evidence that (1) he told the company about the disability prior to being hired (it is scarcely a rebuttal to this argument that "[FXF's] Service Center did not review the form"), (2) performed his job without complaints up to the time of the April 6 incident, and (3) revealed the existence of right knee surgery during the February 2017 exam which certified him as fit for the period during which the incident occurred (see Dkt. No. 61-2 at 2; "Driver Health History").
Additionally, FXF has adduced no evidence that the task it requested Plaintiff to do — the lowering of the disabled trailer door — is a prerequisite for the operation of a commercial vehicle; i.e., whether his inability/refusal to shut the trailer door rendered him unfit to drive a truck. In other words, there are disputed issues of material fact regarding whether FXF had a reasonable belief that Plaintiff was either unfit to operate a commercial vehicle or was "disabled," and whether the company had "no choice" other than to de-certify him and await the results of another medical exam, thus raising the spectre of "disability discrimination."
Defendant attempts to argue that Plaintiff suffered no adverse employment actions. Even setting aside the issue of constructive discharge (see discussion infra), Defendant's de-certifying Plaintiff to drive, failing to offer Plaintiff either reasonable accommodation or alternate work, then delaying his return to work by more than three months
As further proof of his claim, Plaintiff presents evidence that Defendant failed to engage in the "interactive process" required by the ADA to identify appropriate reasonable accommodations — i.e., "communication and good faith exploration of possible accommodations."
While Defendant argues that its attempts to "re-certify" Plaintiff qualify as an interactive process intended to arrive at a reasonable accommodation, Plaintiff alleges without rebuttal by Defendant that he was never contacted about doing any alternate forms of work during the period when he was de-certified as a driver. This alone is enough to defeat summary judgment (`[A]n employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process;"
Defendant's arguments fare no better under WLAD, which requires a prima facie showing that an employee was (1) disabled, (2) subject to an adverse employment action, (3) doing satisfactory work, and (4) discharged under circumstances that raise a reasonable inference of unlawful discrimination.
WLAD requires a plaintiff alleging constructive discharge to show (1) a deliberate act by the employer that made working conditions so intolerable that a reasonable person would have felt compelled to resign, and (2) a resignation for reasons related to the intolerable conditions.
FXF first asserts that it did not "terminate" Plaintiff, but this argument is not determinative in a constructive discharge case; neither is the company's allegation that "Plaintiff refused to return to work." The company also maintains that "plaintiff was not constructively discharged because he admitted he never resigned," but this is an inaccurate interpretation of "constructive discharge." The gravamen of the cause of action is that an employer makes conditions at work so intolerable that a person would have felt compelled to resign. Defendant cites to no statutory or case law that what FXF clearly viewed as a "refusal to return to work" is not a form of resignation for purposes of a constructive discharge claim.
Defendant argues that doing its mandated duty under federal regulations (requiring the recertification exam and not approving it until Plaintiff disclosed his entire medical history to the examining physician) cannot form the basis of creating "intolerable working conditions." But in the face of disputed issues of material fact whether the examination was necessary and no evidence (or at least inadmissible evidence, given that Defendant did not assert its "failure to give complete health history" argument until its Reply) that Plaintiff failed to disclose his limitation to the re-examining physician, Defendant is not entitled to summary judgment on this claim.
Proof of this claim rests on Plaintiff's ability to demonstrate that (1) he was engaged in a protected activity, (2) suffered an adverse employment action, and (3) the protected activity was a substantial factor in the adverse employment action.
Any opposition expressed to "conduct that was at least arguably a violation of the law" qualifies as "protected activity."
While only knowledge of the protected activity is required for liability (a showing of "but for" causation is not required;
Defendant again cites to the non-discretionary nature of the FMCSA regulations as a defense to any assertion that it retaliated against Plaintiff. As noted above, it is far from clear that Defendant was in fact mandated to take the steps it did; i.e., that Plaintiff was in fact unfit to operate a commercial vehicle as required by law. That circumstance, combined with other actions such as banning Plaintiff from the premises and arguably failing to engage in any interactive process to reasonably accommodate him, suffices to establish that Defendant cannot prevail on its defense as a matter of law; i.e., is not entitled to summary judgment of dismissal of the claim.
It appears to the Court that this case is complicated by the paradoxical nature of the facts and the conclusions/assumptions that the parties drew from what transpired on April 6, 2017 and its aftermath. Defendant appears to be confused regarding how it can be accused of disability discrimination when Plaintiff has so vigorously asserted that he is not disabled. What FXF fails to grasp is that, because
Defendant's motion for summary judgment will be denied. With the exception of Defendant's claim of failure to mitigate and failure to engage in an interactive process, Plaintiff's motion for summary judgment regarding the claimed affirmative defenses will be granted.
The clerk is ordered to provide copies of this order to all counsel.
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