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EQUAL EMPLOYMENT OPPORTUNITY COMM. v. J.B. HUNT TRANSP.

February 8, 2001

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
J.B. HUNT TRANSPORTATION, INC., DEFENDANT.



The opinion of the court was delivered by: Mordue, District Judge.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Presently before the Court are motions for summary judgment by both parties. Plaintiff, the Equal Employment Opportunity Commission ("EEOC"), commenced this action pursuant to the authority granted in Section 107(a) of the Americans with Disabilities Act ("ADA"), codified at 42 U.S.C. § 12101 et seq. EEOC alleges that defendant J.B. Hunt Transport, Inc., ("Hunt"), the nation's largest publicly held truckload motor carrier, violated the ADA by engaging in unlawful employment practices. To wit, EEOC's complaint alleges that Hunt discriminated against a class of applicants to whom Hunt had conditionally offered employment after the company learned these applicants were taking various prescription medications which appeared on a "list" Hunt used to screen truck driver candidates.

Hunt responds that the Drug Review List ("DRL") was developed as a safety related qualification standard to address concerns arising from side effects associated with drivers' use of prescription drugs while operating tractor trailers on the nation's highways. EEOC contends that the DRL, containing hundreds of disqualifying medications, was not created by a medical doctor nor did Hunt perform individual assessments of applicants' actual risks for or experience with dangerous side effects. Consequently, EEOC contends that when Hunt refused to hire this class of truck driver applicants because of their taking of prescription medications, it discriminated against persons with disabilities or "perceived" disabilities in violation of the ADA.

II. FACTUAL BACKGROUND

Hunt is a motor carrier of property engaged in the business of providing regulated, for-hire transportation services in interstate, intrastate and international commerce throughout the 48 contiguous United States, the District of Columbia, Canada and Mexico. Hunt maintains a fleet of equipment that includes 8,000 tractors. The company also employs approximately 12,000 employees, including approximately 10,000 over-the-road ("OTR") drivers. Hunt and its drivers are subject to the Federal Motor Carrier Safety Regulations ("FMCSR") promulgated by the U.S. Department of Transportation ("DOT"), which establishes the minimum qualifications for persons who drive commercial motor vehicles and the minimum duties for motor carriers who utilize OTR drivers. According to these regulations, an employer may require or enforce "more stringent requirements relating to safety of operation and employee safety and health." 49 C.F.R. § 390.3(d). Importantly, the regulations provide that "no driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle." 49 C.F.R. § 392.3. Insofar as drivers' use of drugs and other substances, DOT regulations state no driver shall be on duty and possess, be under the influence of, or use, any substance set forth in Schedule I*fn1 of the regulations, any amphetamine, any narcotic drug or derivative thereof or "[a]ny other substance, to a degree which renders the driver incapable of safely operating a motor vehicle." 49 C.F.R. § 392.4. In addition, "[n]o motor carrier shall require or permit a driver to violate" the above-referenced paragraph. Id.

According to Hunt, its OTR drivers run irregular routes and are particularly subject to a variety of adverse work-related conditions such as sleep deprivation, irregular work and rest cycles, weather extremes, long driving periods, irregular meals, long layovers, tight delivery schedules, en route delays, night driving, accumulated fatigue, stress and extended periods of loud noise and vibrations. Because of the irregular routes and schedules associated with Hunt's truckload carrier operation, safety concerns are heightened. As a result, an OTR driver of a commercial motor vehicle for a truckload carrier such as Hunt must be highly skilled, alert, proficient and able to perform his or her driving tasks safely on the public highway. During the relevant time period involved in this case, Hunt was constantly attempting to hire new drivers because of driver turnover and severe driver shortage. The tractor-trailer combinations driven by the OTR drivers have a combined gross vehicle weight rating of 80,000 pounds and pose a tremendous safety risk to the motoring public and the driver in the event that they are not operated safely.

In its motion papers, EEOC alleges that between January 1995 and December 1997, Hunt rejected hundreds of applicants for the position of commercial driver "who were taking a medication or medications deemed disqualifying without conducting an individualized assessment of whether they could perform the job." In some cases, EEOC alleges the applicants were rejected because the drug or drugs they were taking appeared on the DRL.*fn2 EEOC contends that Hunt via David Whiteside grossly misapplied DOT regulations in developing the DRL since it is only Schedule I drugs — not Schedule II-V drugs — which commercial drivers are automatically prohibited from using. Indeed, FMCSR provide that use of these medications is authorized if a driver obtains certification from a medical practitioner that use of the medication will not adversely affect his or her ability to drive. See 49 C.F.R. § 391.41. As a result of Whiteside's mistaken belief that Schedule II-V prescription medications were prohibited by FMCSR, EEOC alleges that 102 OTR driver applicants were rejected because their medication was ascribed the DRL restriction "Not Permitted." In spite of this restriction, however, EEOC concedes that during the three year period at issue in this case, Hunt did hire some applicants taking medications deemed "Not Permitted" by the DRL — one in 1995 and seven in 1997.

EEOC also avers that Hunt via David Whiteside misapprehended a DOT report filed after the agency conducted a 1987 conference on "Cardiac Disorders and Commercial Drivers." To wit, EEOC alleges that Hunt "summarily" interpreted the report to prohibit drivers use of various heart condition medications. Plaintiff argues that the report does not prohibit use of cardiovascular pharmacologic agents, but, rather emphasizes the importance of "individualized assessment" in evaluating the impact of various medications on commercial drivers. EEOC thus claims Hunt unlawfully rejected thirteen applicants who were taking such medications without conducting any individualized inquiry.*fn3 It is undisputed that Hunt did hire a number of applicants taking medications for "Heart Conditions" — five in 1995, four in 1996 and four in 1997.

EEOC also contends that other applicants were rejected on the basis of using medications which did not appear on the DRL.*fn4 In all, EEOC purports to represent 540*fn5 claimants who Hunt allegedly failed to hire in violation of the ADA.*fn6 Again, however, although EEOC contends that Hunt's policy of rejecting applicants based on medication restrictions was a "blanket" exclusionary policy, it concedes that Hunt did hire some individuals taking the otherwise disqualifying medications. Indeed, in 1995, Hunt hired two applicants taking drugs listed on the DRL as "Disqualifying Condition" and eleven using medications deemed to have "Unsafe Effects." In each 1996 and 1997, Hunt hired one person taking a "Disqualifying Condition" medication and thirteen using drugs with "Unsafe Effects." Hunt contends that several of the applicants who were not hired based on their medication usage either did not supply medical information and/or the driver certification necessary to complete their application or, despite being asked to do so, did not supply legible copies of a certification.

All applications received by Hunt for the commercial driver position were sent to its Corporate Driver Personnel department in Lowell, Arkansas where applicants' motor vehicle, criminal and prior employment records were screened along with references. After an applicant received a conditional offer of employment for the position of commercial driver, he or she would undergo a medical screening process, including questions regarding any prescription medications taken in the previous five years. The applicant service representatives ("ASRs") responsible for screening truck driver applicants had no medical training and in most cases did not have college degrees. If the applicant had taken or was taking a medication, Hunt employees consulted the Medical Guidelines and DRL.

Hunt denies it "summarily dismissed" candidates based on medication usage and insists that prior to rejecting an applicant who took a drug on the DRL, it would attempt to determine: (a) if the individual could work while taking the drug without affecting the safe operation of the commercial motor vehicle; (b) if not, whether he or she could take a different drug that did not have the same potentially dangerous side effects or he or she could stop taking the drug altogether; or (c) if there was another way the individual could drive safely.

Hunt concedes that its Medical Advisor, who had no medical training, would decide whether to send a potential driver's medical information for review by an outside physician. A disputed number of claimants in this case were referred for a medical records review by Craig Cooper, D.O., an outside consultant hired by Hunt. Dr. Cooper's assessment involved a review of an applicant's medical questionnaire and medical records. Dr. Cooper infrequently spoke to applicants and never physically examined them. There were occasions when he spoke to an applicant's treating physician. Dr. Cooper used the DRL in his assessment of applicants because it gave him an indication of what medicines the company was concerned about.

It is undisputed that Hunt hired some applicants who were taking drugs on the DRL at the time they applied for driving positions between May 1, 1994, and December 31, 1997.*fn7 Indeed, prior to beginning their employment, each of those hired in spite of DRL medication use provided Hunt with a medication release or other documentation from his or her treating physician or other health care provider certifying that he or she could safely operate a truck while taking the drug and that he or she did not suffer from dangerous side effects. Hunt thus disputes EEOC's allegation that it maintained a policy of "summarily" denying employment to applicants taking certain medications.

John Carnavale, who had applied to Hunt for a commercial truck driver position and was rejected based on his use of Flagy1 for Crohn's disease, filed a Charge of Discrimination with EEOC on November 13, 1996. EEOC issued a Letter of Determination on February 11, 1997, finding reasonable cause to believe that Hunt had violated the ADA. EEOC filed the present complaint on October 24, 1997.*fn8

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See R.Civ.P. 56(c). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Irrelevant or unnecessary facts do not preclude summary judgment, even when they are in dispute. See id. The moving party bears the initial burden of establishing that there is no genuine issue of material fact to be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). With respect to any issue on which the moving party does not bear the burden of proof, it may meet its burden on summary judgment by showing that there is an absence of evidence ...


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