Marshall v. Gordon Trucking, Inc.

Citations: 215 F. Supp. 3d 1036; 2016 WL 6106722; 2016 U.S. Dist. LEXIS 143448Docket: 3:12-cv-01550-BR

Court: District Court, D. Oregon; October 17, 2016; Federal District Court

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On remand from the Ninth Circuit, which found that the original court treated Defendant Gordon Trucking Inc.'s Motion for Summary Judgment improperly, the court was instructed to apply the standard established in Albino v. Baca, which states that failure to exhaust administrative remedies is an affirmative defense typically addressed in summary judgment motions. The Ninth Circuit also determined that the lower court erred in concluding it lacked subject-matter jurisdiction based on the plaintiff's failure to exhaust remedies under DOT regulations and directed the court to consider whether to excuse exhaustion or apply the doctrine of primary jurisdiction.

Defendant's summary judgment motion argued that Plaintiff Steven D. Marshall did not exhaust DOT administrative remedies and failed to demonstrate he was a "qualified individual" under the ADA. The court granted the Defendant's motion.

Factual background reveals that Defendant, an interstate trucking company, required Plaintiff to undergo a DOT medical examination after offering him a conditional job. During this examination, Plaintiff disclosed his bipolar disorder and lithium medication. Although the examining physician, Dr. Swan, certified Plaintiff as medically qualified, Defendant's retained physician, Dr. Sorsby, disagreed, citing concerns about lithium's potential to cause night blindness. Consequently, Defendant excluded individuals taking lithium from driving commercial vehicles. After Plaintiff’s personal physician refused to modify his medication, Defendant terminated his employment based on Dr. Sorsby’s assessment regarding Plaintiff's medical qualifications under DOT regulations.

In November 2011, the Plaintiff filed a claim with the Oregon Bureau of Labor and Industries (BOLI), which was also a joint filing with the Equal Employment Opportunity Commission (EEOC) under a work-sharing agreement. The EEOC issued a Right to Sue notice in June 2012. Although there was a disagreement between the Plaintiff's physician and the Defendant’s regarding the Plaintiff's qualifications to drive commercially, the Plaintiff did not seek a determination from the Department of Transportation (DOT) as required by 49 C.F.R. 391.47. The Plaintiff initiated this action against the Defendant on August 28, 2012, alleging disability discrimination under the Americans with Disabilities Act (ADA) through three counts: disparate treatment, failure to engage in the interactive process, and failure to accommodate. 

The Defendant filed a Motion for Summary Judgment on June 24, 2013, which the Court granted on October 30, 2013, dismissing the action for lack of jurisdiction. The Plaintiff appealed to the Ninth Circuit, which reversed and remanded the case on June 1, 2016. The Court re-evaluated the Defendant’s Motion for Summary Judgment on July 29, 2016, following the Ninth Circuit's standards.

Summary judgment is appropriate when there is no genuine dispute regarding material facts, with the moving party needing to demonstrate the absence of such disputes. The nonmoving party must provide evidence that could lead a reasonable jury to favor their position. The court must draw all reasonable inferences for the nonmoving party, and summary judgment is inappropriate if reasonable contrary inferences can be drawn from the evidence. A mere assertion of a dispute is insufficient to avoid summary judgment, and if the non-moving party's claims lack plausibility, they must present more compelling evidence. The substantive law determines whether a fact is material, and if resolving a factual dispute wouldn’t affect the outcome, the court may grant summary judgment. The failure to exhaust administrative remedies is an affirmative defense that the Defendant must prove, showing that an available remedy was not pursued by the Plaintiff.

The plaintiff must demonstrate that their specific circumstances rendered available administrative remedies ineffective after the defendant has established that such remedies exist. If the court finds that the plaintiff has not exhausted these remedies, it may either excuse this failure or direct the parties to engage with the relevant agency. The defendant has shown that an administrative remedy is available, as the Secretary of Transportation has the authority to set qualifications for commercial drivers per 49 U.S.C. 31102(b)(1)(C). The Department of Transportation (DOT) establishes minimum standards for commercial drivers, requiring compliance from interstate trucking companies. In disputes over a driver's medical qualifications, the DOT provides an administrative process for resolution under 49 C.F.R. 391.47.

While the Ninth Circuit has not specifically addressed the exhaustion of DOT remedies in ADA cases, the Eighth Circuit's decision in Harris v. P.A.M. Transp. Inc. outlines applicable DOT regulations and administrative procedures for settling qualification disputes. Although no statute explicitly mandates the exhaustion of DOT administrative remedies for ADA claims, courts have deemed it prudent to impose such a requirement due to the DOT's expertise in safety regulations. Cases like EEOC v. P.A.M. Transp. Inc. and Campbell v. Federal Express Corp. support this view, affirming that driver fitness is within the regulatory scope of the DOT. The court aligns with the reasoning in Harris and related cases, emphasizing the importance of adhering to congressional intent regarding driver fitness issues.

Plaintiff's physician conducted a medical examination and certified him as medically qualified to drive a commercial vehicle, fulfilling DOT requirements. However, Defendant’s medical examiner determined that Plaintiff was unqualified due to his use of lithium, which could cause night blindness. The Court ruled that the disagreement over Plaintiff's ability to operate a commercial vehicle should have been resolved through the administrative process outlined in 49 C.F.R. 391.47. It concluded there was no genuine dispute of material fact regarding the existence of this administrative process.

Defendant established that Plaintiff failed to exhaust available administrative remedies, as the parties' Joint Statement confirmed that Defendant did not receive any indication that Plaintiff sought a determination from the DOT concerning his medical qualifications. Therefore, it was undisputed that Plaintiff did not pursue the administrative remedies under 49 C.F.R. 391.47.

Plaintiff did not demonstrate that the administrative remedies were effectively unavailable to him. He argued that the administrative process would have been futile and claimed discrimination under the ADA, asserting that Defendant's termination was based on its own policy against lithium use rather than DOT regulations. However, Defendant maintained that the termination was based on Dr. Sorsby’s assessment, linking Plaintiff's lithium use to a potential disqualification under DOT regulations, which state that individuals with medical conditions affecting safe driving are disqualified. It was acknowledged that Plaintiff takes lithium for bipolar disorder, yet his physician certified him as fit to drive, while Defendant's medical examiner concluded otherwise due to concerns about night blindness associated with lithium.

The Joint Statement of Agreed Facts identifies a disagreement between Dr. Sorsby and Dr. Swan regarding the Plaintiff's qualification to drive commercial vehicles, centered on the Plaintiff's use of lithium. Dr. Swan certified the Plaintiff's fitness to drive despite this medication, while Dr. Sorsby contended that the Plaintiff did not meet the medical standards set by DOT regulations. This disagreement highlights a conflict that the DOT administrative process is intended to resolve. 

The Plaintiff argues that this process was futile, claiming it was neither well-known nor well-developed, and did not promise reinstatement if the outcome favored him. However, the critical issue is the practical availability of the process rather than its familiarity or development status. The Plaintiff has not provided evidence to demonstrate that he could not utilize the process or that it lacked available remedies. 

The legal precedent established in Brown v. Valoff emphasizes the necessity to exhaust available remedies as long as some options exist. The administrative process could have resolved whether the Plaintiff was medically qualified under 49 C.F.R. 391.47. 

Further, the Plaintiff claims to be a qualified individual with a disability under the ADA, arguing that his use of lithium does not disqualify him under DOT standards. Conversely, the Defendant asserts that the Plaintiff cannot establish his qualification under DOT regulations for safe operation of a commercial vehicle. The ADA prohibits employment discrimination based on disability but acknowledges that federal safety regulations limit its application. Legislative history indicates that individuals with disabilities must meet DOT standards to be considered qualified under the ADA. Courts have held that employment actions based on non-compliance with DOT medical standards do not violate disability discrimination laws, as demonstrated in Williams v. J.B. Hunt Transp. Inc. The Ninth Circuit has not directly ruled on this issue, but the Fifth Circuit has addressed it, reinforcing the importance of DOT regulations in employment decisions for commercial drivers.

The Fifth Circuit determined that the plaintiff was not a "qualified individual" under the Americans with Disabilities Act (ADA) due to his lack of required Department of Transportation (DOT) certification and failure to exhaust administrative remedies under 49 C.F.R. 391.47. The plaintiff argued he qualified based on his personal doctor's certification, which conflicted with the defendant’s medical opinion deeming him unqualified. Similar to the precedent set in Williams, the plaintiff did not utilize the available administrative procedures to resolve these conflicting opinions, failing to demonstrate that his non-exhaustion was justified or futile.

The court emphasized that the dispute falls under the DOT's primary jurisdiction and that the plaintiff must pursue administrative remedies before seeking judicial relief. Although the Ninth Circuit allowed for the possibility of excusing exhaustion, it noted that primary jurisdiction is distinct from the exhaustion requirement. Courts typically require plaintiffs to exhaust administrative avenues before court proceedings, particularly when an administrative agency possesses regulatory authority over the matter. The court recognized that Congress assigned driver fitness determinations to the Secretary of Transportation, indicating that such medical disputes regarding driver qualifications should be resolved through the established administrative process in 49 C.F.R. 391.47, which is designed to ensure uniformity and expertise in regulatory administration.

The Court has determined that the doctrine of primary jurisdiction applies and has referred the matter to the Department of Transportation (DOT) for administrative proceedings. Despite the Plaintiff's concerns about the statute of limitations impacting his ability to refile his claim after the administrative process, the Court cites the Supreme Court's decision in Reiter, which affirms that referral to an administrative agency does not remove the court's jurisdiction. Instead, the Court retains jurisdiction and stays the case while awaiting the outcome of the administrative process, ensuring the Plaintiff is not unfairly disadvantaged by potential limitations on refiling. Consequently, the Court has granted the Defendant’s Motion for Summary Judgment, referred the case to the DOT, and mandated that the parties submit a joint status report every 120 days regarding the administrative process. The Court has clarified that although the Plaintiff alleged termination, his employment status more closely resembled a withdrawal of the job offer, and it is acknowledged that he was medically disqualified from driving per DOT regulations. There is no formal transfer mechanism between federal courts and the agency; therefore, the parties must initiate the necessary proceedings as directed by the Court.