At the end of July, a unanimous Sixth Circuit affirmed an
employer’s summary judgment on an ADA retaliation and public policy wrongful
discharge claim where the employee objected to the employer’s reasonable
accommodation conditions (that he wear a CPAP machine) and the parties debated
conflicting medical reports as to whether he suffered from sleep apnea. Allmanv. WalMart, Inc., No. 19-4220 (July 30, 2020). The Court found the employer’s conditions to
be reasonable under the circumstances and entitled to request additional
medical examinations. Ultimately, “arguing
about the accuracy of the employer’s assessment is a distraction because the
question is not whether the employer’s reasons for a decision are right but
whether the employer’s description of its reasons is honest.”
According to the Court’s opinion, the plaintiff commercial
truck driver disputed that he suffered from sleep apnea. Federal DOT regulations require drivers to
submit to annual physical examinations by specially certified physicians and to
be free of sleep apnea. Accordingly,
once sleep apnea had been indicated during a mandatory annual medical
examination, the employer required the plaintiff to submit at the employer’s
expense to a sleep study, which confirmed the diagnosis. He was thereafter required to wear a CPAP
machine for at least four hours each night that he slept in his truck and this
was apparently monitored remotely. The
plaintiff found the machine to be uncomfortable and objected to the
requirement. He was suspended each time
he did not comply and could not return to work until he had worn it for five
consecutive nights.
The plaintiff then paid for his own sleep study, which was
conducted by a physician who had not been certified by the DOT (or at least no
evidence of such certification was ever provided), and it denied that he
suffered from sleep apnea. The employer requested that the plaintiff
submit to a new DOT physical. Sadly, the
physician assistant simply accepted the results of the recent sleep study
without conducting an independent examination. Accordingly, the employer
requested that the plaintiff submit to a third sleep study by a third sleep
specialist to resolve the prior conflict.
This study again confirmed that plaintiff suffered from sleep
apnea. After this study, the employer
directed the plaintiff to wear the CPAP machine for 8 hours/night every night
and would not permit him to return to work until he had worn it for three
consecutive nights.
When the plaintiff still refused to wear the CPAP machine,
the employer gave him one last chance:
within seven days he could take BOTH his non-apnea report and its most
recent sleep study to a DOT certified physician of his choice to evaluate the
conflicting medical reports and render a medical opinion. The
plaintiff refused and instead resigned his employment. This lawsuit followed.
The Court found the employer’s accommodation of the
plaintiff’s sleep apnea condition to be reasonable because without regular
treatment with a CPAP machine, the plaintiff would not be qualified to work as
a commercial truck driver under DOT regulations and could be a danger to other
drivers when suffering from sleep deprivation while working.
Regardless of whether the plaintiff could prove a prima
facie case of retaliation, the employer provided a legitimate and non-retaliatory
reason for its actions.
This court has explained that “[a]n employee is not protected when he violates legitimate rules and orders of his employer, disrupts the employment environment, or interferes with the attainment of his employer’s goals.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989). And Walmart’s program of requiring drivers who have sleep apnea to wear a CPAP machine constitutes a legitimate safety requirement and disability accommodation.
The Court rejected the plaintiff’s pretext arguments. “Walmart had before it two separate studies
demonstrating that Allman had sleep apnea, and the company reasonably sought to
ensure that Allman’s twice-diagnosed medical condition was under control.” The plaintiff could not belatedly attack the validity
of the two sleep studies and require his employer to believe his explanation
over the accounts of two different certified professionals. The employer was not required to accept the
results of his physician’s sleep study, especially since he failed to ever
produce evidence that his physician was DOT certified. The plaintiff also failed to produce evidence
that the CPAP requirement was imposed out of spite. On the contrary, he admitted that the
employer imposed the requirement because it believed that he suffered from
sleep apnea.
The employer was not required to accept as binding a DOT recertification
which was issued in error. Instead, “employers
may permissibly disregard DOT cards issued in error.” The employer’s request for a third-sleep
study – after the erroneous DOT recertification the first two studies disagreed
-- was reasonable. Indeed, it confirmed the result of the first
sleep study finding sleep apnea.
The Court also rejected the plaintiff’s wrongful discharge
claim. First, it could not find where he
had opposed unsafe working conditions by refusing to wear the CPAP machine: “Walmart’s
CPAP requirement was not an unsafe working condition, but instead a disability
accommodation meant to promote public safety on the highways and to ensure
compliance with federal law.”
Further, the Court questioned whether his objection to the
CPAP machine’s safety had been made in good faith:
we believe that “good faith” required an objectively reasonable belief that the CPAP machine was an unsafe working condition. Nothing in the record before us would allow a reasonable person to hold such a belief. Allman’s personal discomfort in wearing a CPAP machine that so many others have successfully used to alleviate the dangers of sleep apnea is indeed unfortunate, but his personal discomfort does not satisfy the jeopardy element of his Greeley claim.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
