Sixth Circuit: Dueling Diagnoses Justified Employer's Request for New Medical Examinations

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.