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Nichols v. City of Mitchell

United States District Court, D. South Dakota, Southern Division

November 9, 2012

James R. NICHOLS; John F. Robertson; and Curtis Dumas, Plaintiffs,
v.
CITY OF MITCHELL, Defendant.

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Steven Daniel Sandven, Steven D. Sandven Law Offices, Matthew R. McGovern, Sioux Falls, SD, for Plaintiffs.

Jason R. Sutton, Lisa Hansen Marso, Meghann M. Joyce, Boyce Greenfield Pashby & Welk, LLP, Sioux Falls, SD, for Defendant.

MEMORANDUM OPINION AND ORDER RE: MOTION FOR SUMMARY JUDGMENT

LAWRENCE L. PIERSOL, District Judge.

Plaintiffs James R. Nichols, John F. Robertson and Curtis Dumas brought separate actions against Defendant City of Mitchell claiming employment discrimination in violation of the Americans With Disabilities Act (ADA). [1] The cases were then consolidated for discovery and trial. The Defendant City of Mitchell moved for summary judgment. Doc. 42. After the motion for summary judgment was filed, the Court allowed Defendant to amend its answers, allowed additional discovery and allowed supplemental briefing on the Defendant's motion for summary judgment The Court also gave notice pursuant to Fed, R. Civ. P. 56(f) that it was considering granting summary judgment to the Plaintiffs on liability for the violation of 42 U.S.C. § 12112(d)(4)(A).

FACTUAL AND PROCEDURAL BACKGROUND

Defendant City of Mitchell provides transit services through Palace Transit, a program that is partially funded with federal, state and city funds. Plaintiff James Nichols began working for Palace Transit as a bus driver in March 2003. Plaintiff John Robertson began working for Palace Transit as a bus driver in 2005. Plaintiff Curtis Dumas began working for Palace Transit as a bus driver in 2007. Defendant City of Mitchell adopted a policy on or about January 5, 2009, which required its Palace Transit bus drivers to pass the Department of Transportation's (DOT) CDL Medical Certification examination that utilizes the Federal Motor Carrier Safety Regulations. The DOT examination is required by federal statute for interstate truck drivers. Palace Transit is an " on demand" service, where the customers request a ride, and generally the

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services are provided in the City of Mitchell. The first documented out-of-state trip was not had until 2011, after Plaintiffs' employment had been terminated. Most of the buses seat fifteen or fewer passengers.

Defendants concede that to drive an intrastate passenger bus South Dakota law merely requires a driver to hold a valid South Dakota CDL (Commercial Driver's License), the obtaining of which only involves a minimal vision test, and a written test. The job description for bus operator for Palace Transit which was in effect when the plaintiffs were hired lists CDL " p" endorsement as the required certificate or license for the position. The Defendant previously required a post-offer physical exam which included a vision test, drug test, blood pressure test and a determination whether the applicant could safely perform the physical requirements listed in the job description. This exam was not as specific as the DOT exam and could be administered by the employee's physician. All of the Plaintiffs had passed the post-offer physical exam under the previous policy. Each of their post-offer physical summary reports for examinations under the previous policy contained a check mark before the provision: " NO medical contraindications were noted in the medical and occupational history review or in the physical exam that would interfere with performing the essential functions of the job."

The DOT exam protocol specifies what physical to give, what medical records to obtain, and what medical conditions to consider. The DOT exam protocol has required follow-up examinations and requires the employee to report certain medical conditions and requires follow-up if certain medical conditions change after an employee has passed the exam.

In 2009, each Plaintiff underwent the DOT examination required by the City of Mitchell's policy. Plaintiffs Nichols and Robertson did not pass the examination. Plaintiff Dumas obtained a one-year certification, and was required to undergo the examination again in March of 2010. On January 21, 2010, Plaintiff Dumas's cardiac condition required the placement of a stent, and in March of 2010, required bypass surgery. On March 11, 2010, Plaintiff Dumas was placed on leave under the Family Medical Leave Act (FMLA). His FMLA leave expired May 28, 2010, and his employment was thereafter terminated. The Plaintiffs all had good work and safety evaluations and worked overtime without accommodations prior to having their employment terminated.

Each Plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC) and in each case the District Director for the Minneapolis Area Office of the EEOC concluded that each Plaintiff was discriminated against in violation of the ADA by being discriminated against based on his disability. The District Director also concluded that the requirement to obtain a DOT certification was a violation of the ADA. Informal methods of conciliation offered by EEOC were not utilized, each Plaintiff received his right to sue letter from the U.S. Department of Justice, and Plaintiffs timely commenced individual actions which were then consolidated.

DISCUSSION

General Principles of Summary Judgment

Summary judgment shall be entered if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the Court is required to view the facts in the light most favorable to the non-moving party and must

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give that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). The moving party bears the burden of showing both the absence of a genuine dispute as to any material fact and its entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

" Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), quoting Anderson v. Liberty Lobby Inc., 477 U.S. at 255, 106 S.Ct. 2505. Summary judgment is not disfavored and is designed for every action. Therefore, there is no " discrimination case exception" to the application of summary judgment, which is in all cases a useful pretrial tool to determine whether any case merits a trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.2011).

I

WHETHER PLAINTIFFS ARE PRECLUDED FROM PRESENTING THEIR ADA CLAIMS FOR FAILURE TO DEMONSTRATE THAT THEY HAVE A PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS ONE OR MORE OF THE MAJOR LIFE ACTIVITIES?

Plaintiff Nichols was diagnosed with type 2 diabetes in 2002, was prescribed oral medication for the diabetes, and has a heart condition. Plaintiff Robertson was diagnosed with diabetes in 1999, began taking insulin for the diabetes in 2002, and was also diagnosed with sleep apnea problems. Plaintiff Dumas has a history of coronary artery disease, required stent placement in January of 2010 and required coronary artery bypass graft surgery in March of 2010. Defendants rely on case law handed down before the ADA was amended to contend that Plaintiffs have failed to establish that they have a " physical or mental impairment that substantially limits one or more of the major life activities." See Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797, 801-802 (8th Cir.2006) (" The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working." ).

The Americans with Disabilities Act Amendments Act (ADAAA), which was passed in 2008, explicitly rejects several Supreme Court decisions that defined " disability" more narrowly than many of the ADA's original Congressional proponents had intended. See H.R.Rep. No. 110-730, at 5 (2008) (H. Comm. on Educ. & Labor), cited in Rohr v. Salt River Project Agricultural Imp. and Power Dist., 555 F.3d 850, 861 (9th Cir.2009). Under the ADAA " disability" is to be broadly construed and coverage is to apply to the " maximum extent" permitted by the ADA and the ADAAA. Rohr, 555 F.3d at 861, (citing 122 Stat. at 3553).

42 U.S.C.A. § 12102(1) defines disability as:

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment [...].

42 U.S.C.A. § 12102(4) provides the following rules of construction for determining a disability under the ADA:

(A) The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this

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chapter, to the maximum extent permitted by the terms of this chapter.
(B) The term " substantially limits" shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.
(C) An impairment that substantially limits one major life activity need not limit other major life activities in order ...

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