Opinion
Civil No. CV 01-1004-HA
August 16, 2002
OPINION AND ORDER
The plaintiff in this case has alleged claims under Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101-12213, and the equivalent Oregon statute, ORS 659.436-449. Specifically, the plaintiff alleges the defendant treated and perceived the plaintiff as a person with an impairment that substantially limited one or more major life activities. Furthermore, it is alleged the defendant applied different standards of performance to the plaintiff than were applied to non-disabled employees. Presently before the court is the defendant's motion (#21) for summary judgment. For the following reasons, the defendant's motion for summary judgment is granted.
BACKGROUND
Defendant Express Personnel Services (Express) provides temporary employment staffing services. Express does not control the business decisions of its clients, and does not create jobs or staffing assignments. The length and availability of assignments Express can fill are exclusively determined by Express' clients.
In March, 2000, the plaintiff contacted Express about an advertisement for truck drivers with commercial drivers licences (CDL's) to be placed at Mayflower Moving and Storage (Mayflower). The plaintiff completed Express' pre-hire paperwork and submitted to a drug screen on March 20, 2000. The following day, Express extended a conditional offer of employment to the plaintiff.
The plaintiff's drug screen results were positive for THC, which is a chemical present in marijuana. Kim Guard, a branch manager with Express, met with the plaintiff and informed him of the test results. The parties dispute what happened next. Express claims that the plaintiff voluntarily disclosed that he had been diagnosed with AIDS, that he was taking Marinol, and that Marinol could cause the drug screen to report the presence of THC in his body. The plaintiff however, asserts that he told Guard only that he had a "virus" which required him to take Marinol, and that he reluctantly told Guard that he was HIV positive only in response to her direct inquiry.
On March 27, 2000, Ms. Guard informed the plaintiff that she would need confirmation that this medicine posed no threat to himself or others, and that he was medically qualified to drive a commercial vehicle. The plaintiff delivered Express' standard Physicians Statement to his personal doctor, Dr. Beers, on March 29, 2000, and that form was filled out and faxed back to Express on the same day.
After reviewing the form completed by Dr. Beers, Express decided that it did not adequately address their concern over the plaintiff's ability to operate a vehicle while taking Marinol. The first form requested Dr. Beers to evaluate the plaintiff's ability to work in reference to light, medium, and heavy industrial positions, as opposed to truck driving positions. Furthermore, the first form makes no mention of any medications that the plaintiff was taking, and whether the plaintiff could drive while taking them. Express then contacted the plaintiff to let him know that they needed explicit verification from Dr. Beers about the plaintiff's ability to drive safely. The plaintiff was then provided with a more detailed form to take to his doctor.
The record indicates Express had never dealt with an employee who wanted to drive a commercial truck in spite of failing a drug screen. Ms. Guard noted in the plaintiff's file that "this is a new situation for us we are learning as fast as we can."
The medical release form indicates these job classifications included general labor, assembly/production line work, and working in a warehouse.
The plaintiff asserts the first Physicians Statement was appropriately filled out and he should have been cleared for the Mayflower driving position when he returned the first form. He further asserts he has been involved with other drug screens where his Marinol usage has caused a positive reading for THC. He believes that Express should have employed a Medical Review Officer (MRO) pursuant to Department of Transportation (DOT) regulations, to review the test results against the plaintiff's medication use. However, the plaintiff does not bring a private cause of action against Express for its alleged failure to review drug test results with an MRO. Although it appears Express was not required to conform to the DOT regulations, its efforts to ensure the plaintiff's Marinol use would not create a hazard is consistent with those DOT regulations which state: "A motor carrier shall not require or permit a driver to operate a commercial motor vehicle while the driver's ability or alertness is impaired, or 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. Further, DOT regulations state that no driver shall be on duty and possess, be under the influence of, or use, any substance set forth in Schedule I of the DOT regulations, which includes marijuana and synthetic equivalents. 49 C.F.R. § 392.4; 21 C.F.R. § 1308.11.
Ms. Guard admits she is not a Medical Review Officer.
On April 6th, the plaintiff's doctor sent the second medical release back to Express indicating that the plaintiff was cleared to drive commercial vehicles. However, Express has submitted evidence that Mayflower had cancelled its order for drivers prior to the return of the second form.
This second form specifically stated the plaintiff was taking Marinol and Vicodan, but Dr. Beers concluded that the plaintiff's use of these substances did not hamper his ability to drive safely.
The record contains a computer printout evidencing the alleged cancellation of the "job order" between Mayflower and Express. While the record indicates the request for drivers was cancelled on April 5, 2000, at 2:00:19 PM. The document indicates that the record memorializing this cancellation was created on May 17, 2000.
The plaintiff asserts Guard was "plotting" with her upper management on how to avoid hiring him due to his Marinol use. The defendant asserts the memorandum the plaintiff cites as evidence of plotting shows upper management was only concerned about appropriately handling the situation.
After receiving the second medical release, the plaintiff was informed that his employment file was complete. The plaintiff was told the driving job with Mayflower had been canceled, but he would be called if it was reactivated at a later time. The plaintiff then expressed an interest in being considered for other temporary work. Over the next several weeks, representatives from Express called the plaintiff several times with offers of work, but the plaintiff always declined these offers. The plaintiff asserts there had been a misunderstanding, because he had been clear with Express that he was only seeking driving positions, which Express was not offering. However, that does not alter the fact that Express was offering the plaintiff employment.
After Express notified the plaintiff about Mayflower canceling its job order, the plaintiff independently contacted a Mayflower office to determine the validity of the cancellation. He was told by Mayflower that they were still hiring drivers at their office location after they had allegedly cancelled their request with Express. However, the plaintiff did not apply with Mayflower directly for a driving position, and has not alleged he was told that Mayflower still wanted Express to continue looking for qualified drivers.
Eventually, due to the plaintiff's continuing rejection of work assignments, his file was inactivated. The plaintiff then filed this lawsuit claiming Express had discriminated against him because he has AIDS.
STANDARD OF REVIEW
A party is entitled to summary judgment as a matter of law if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Bahn v. NME Hosp's, Inc., 929 F.2d 1404, 1409 (9th Cir.) cert. denied, 112 S.Ct. 617 (1991).
The moving party must carry the initial burden of proof. The party meets this burden by identifying portions of the record on file which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-324 (1986). Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id. The facts on which the opponent relies must be admissible at trial, although they need not be presented in admissible form for the purposes of opposing the summary judgement motion. Id.
The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inference drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).
Deference to the non-moving party does have some limit. The non-moving party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e) (emphasis added). The "mere existence of a scintilla of evidence in support of the plaintiff's position would be insufficient." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., prohibits an employer from discriminating "against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a).
In order to establish a prima facie case of discrimination, a plaintiff must demonstrate that (1) he is disabled within the meaning of the ADA; (2) he is a qualified individual able to perform the essential functions of the job; and (3) his employer terminated or refused to rehire him because of his disability. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). The ADA defines "disability" as including (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (2) having a record of such impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2). To show a substantial limitation on a plaintiff's ability to work, they must show that they are "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). "The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id.
The ADA further defines the second prong of the prima facie case, "qualified individual with a disability," as an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); see also 29 C.F.R. § 1630.2(m).
The ADA definition of discrimination includes "not making reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A). "Reasonable accommodation" means that, in certain instances, employers must make special adjustments to their policies for individuals with disabilities. See McAlindin v. Co. of San Diego, 192 F.3d 1226, 1237 (9th Cir. 1999), citing Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 334-35 (2nd Cir. 1995) (rejecting argument that reasonable accommodation "requires only equal treatment"). The ADA places a "duty to accommodate" on employers in order to remove barriers that could impede the ability of qualified individuals with disabilities to perform their jobs. McAlindin, 192 F.3d at 1237.
The standards for a ADA claim are also the standards for a similar claim under the applicable Oregon statute. Accordingly, this court will interpret ORS 659.436 through 659.449 consistently with the ADA. See Wheeler v. Marathon Printing, Inc., 157 Or. App. 290, 974 P.2d 207 (Or.App. 1998) (in 1997 the legislature enacted ORS 659.436 through ORS 659.449, Oregon's new Discrimination Against Disabled Persons in Employment Act, which are modeled after the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and contain language significantly similar to the ADA).
The plaintiff alleges he was discriminated against when he was required to obtain a second medical release. The court notes that the record indicates that Express had no prior experience in dealing with an employee with HIV/AIDS who wanted to drive a commercial truck after failing a drug screen. After reviewing the initial Physicians Statement from Dr. Beers, this court agrees that the form was inadequate. The form indicated to Dr. Beers that he should evaluate the plaintiff's condition with respect to his ability to perform light, medium, and heavy industrial/warehouse work, not the plaintiff's ability to drive. Nor does the first form does not address the plaintiff's medication use, which was the primary concern Express had with the plaintiffs potential employment. Express' remaining reservations about the plaintiffs ability to safely operate a commercial truck under the influence of Marinol and the other prescription drugs was appropriate. The plaintiff was not singled out and discriminated against when Express requested Dr. Beers to submit a more detailed medical release.
The plaintiff also questions whether the job order with Mayflower was actually canceled, or if the "cancellation" was discriminatory towards him because Express did not want him driving trucks while infected with HIV/AIDS. The deposition of Ms. Guard indicates that this was an informal job request from Mayflower, and in fact, no formal job order had ever been created. The plaintiff highlights the fact that the computer record memorializing the cancellation of the job order was created more than a month after the alleged cancellation. Even when viewing this evidence in conjunction with the plaintiff's self-investigation of Mayflower's hiring status for drivers, this creates at most a mere scintilla of evidence leading toward a possible discriminatory motive. This inference on its own does not survive summary judgment.
In fact, there is overwhelming evidence that Express was attempting to work with the plaintiff to secure him employment even with knowledge of his HIV/AIDS status. The record reflects that plaintiff repeatedly turned down work assignments offered by Express after such knowledge was gained. The offering of these work assignments are inconsistent with a finding of discrimination by Express against the plaintiff.
The ADA defines discrimination to include not making reasonable accommodation to the known limitations of an individual with a disability. Express in fact did attempt to reasonably accommodate the plaintiff. Express could have revoked the conditional offer of employment when plaintiff failed the drug screen, but instead chose to accommodate his failing the test by allowing him to explain why he was found to have THC in his body. Express had no control over its client revoking the "job order," and the plaintiff has offered insufficient probative evidence to show Express intended to deceive the plaintiff in regard to the availability of a work assignment with Mayflower.
Additionally, this court does not find evidence of Ms. Guard plotting with upper management against the plaintiff through the "Marinol issue" memorandum. This court agrees with the defendant that upper management was attempting to educate its employees on a new situation they had encountered with positive drug screen results.
The record taken as a whole could not lead a rational trier of fact to find for the plaintiff. There is no genuine issue for trial with respect to the third element of the prima facie case under the ADA. Plaintiff has not satisfied his burden of establishing that Express discriminated against him because of his disability.
CONCLUSION
For the reasons as stated above, the defendant's motion for summary judgment (#21) is granted, and this action is dismissed with prejudice.
IT IS SO ORDERED.