Last week, the Sixth Circuit Court of Appeals affirmed the dismissal of an ADA claim where the plaintiff had been terminated because his use of Percocet was inconsistent with his job driving heavy equipment with a commercial drivers’ license. Woodruff v. Ohio Dep’t of Transportation, No. 22-3316 (6th Cir. 11-8-22). The plaintiff had the opportunity to present countervailing evidence and had two years to seek reinstatement, but failed to do so until after the litigation commenced.
According to the Court’s opinion, the plaintiff began taking
Percocet after a motorcycle accident and failed shoulder surgery. When his
employer learned of it, they realized that it was inconsistent with his duties
as a heavy vehicle operator as required by his commercia driving license. Federal regulations provide:
No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any non–Schedule I drug or substance that is identified in the other Schedules in 21 CFR part 1308 except when the use is pursuant to the instructions of a licensed medical practitioner, as defined in § 382.107, who is familiar with the driver’s medical history and has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle.
The plaintiff was requested to bring a note from his
physician describing whether he could safely perform his job while taking
Percocet. Instead, the plaintiff
returned with a letter from a CNP indicating that the plaintiff denied that
Percocet impaired his cognitive functions and that he promised her in writing to
not take any medication when operating heavy machinery. Needless to say, the employer was
underwhelmed and so arranged for an IME, which indicated that it was not safe
for the plaintiff to drive while taking Percocet. The plaintiff never submitted contrary
information during his pre-termination hearing and never sought reinstatement
during the two years after his disability separation (which is possible at the
employer). After his termination and commencing
litigation, he obtained an affidavit from the IME physician indicating that he
could safely perform his job duties. The
trial court granted the employer summary judgment.
The parties disputed whether the plaintiff was “otherwise qualified”
to perform his duties in light of his Percocet prescription and the governing federal
regulation. The plaintiff argued that the
CNP note should have satisfied the regulation.
But this statement stops short of advising [the parties] that his Percocet use would not adversely affect his ability to safely operate a commercial motor vehicle. Rather, it tacitly concedes that [his] Percocet use could become a problem, but that he should be safe to continue working as long as he appropriately managed his medication.
The plaintiff then argued that the employer should have
followed up with the IME physician, indicating that he would have provided the
same information that he later provided to the plaintiff. However, the Court found it was the plaintiff’s
burden to show that he was qualified, not the employer’s. Further, the physician did not provide the
additional information until after he was fired, which is too late. Employers are not liable for discriminatory
decisions based on information that was not provided to them until after
the termination decision.
The plaintiff then argued that the employer failed to make
an individualized inquiry about his situation.
However, the Court concluded that the plaintiff was at fault for any
breakdown in the interactive process. The
employer had requested him to provide information from his physician and the
information provided was unsatisfactory.
The employer then arranged for an IME and the information provided did
not suggest that further
inquiry would lead to a different conclusion. The Department also allowed [the
plaintiff] to provide additional information before his termination. [The
Plaintiff] did not take advantage of that opportunity, nor did he take
advantage of the opportunity to seek reinstatement, even though he obtained Dr.
Vogelstein’s affidavit within the two-year period in which he could seek
reinstatement. Based on the record before us, the [employer] repeatedly sought
to help [the plaintiff] fulfill subsection (b)’s requirements. In contrast, [the
Plaintiff] took no action on his own until after filing this lawsuit.
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.
