Labor & Employment Law Daily FedEx driver who attempted suicide during psychotic break can’t advance ADA regarded-as claim
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Thursday, October 17, 2019

FedEx driver who attempted suicide during psychotic break can’t advance ADA regarded-as claim

By Kathleen Kapusta, J.D.

The driver failed to show that FedEx’s reasons for disqualifying him as a road driver for a year following his suicide attempt were based on pretext.

FedEx did not unreasonably rely on the one-year waiting period in the FMCSA’s medical guidelines when it disqualified a driver from driving for one year after he attempted to kill himself during a psychotic episode, ruled a federal court in Alabama. Nor did the company unreasonably rely on its unwritten policy to reset the driver’s class seniority, said the court, granting summary judgment against his ADA regarded-as claims. His ADA retaliation claim failed as well (Vaughn v. FedEx Freight, Inc., October 10, 2019, Kallon, A.).

As a road driver for FedEx or its predecessor since 1992, the employee transported freight overnight to different service centers near his home. He was required to hold a commercial driver’s license, pass a physical performed by a DOT-certified physician, and meet relevant DOT and Federal Motor Carrier Safety Administration (FMCSA) regulations.

Psychotic episode. In September 2012, the employee suffered an isolated psychotic episode that lasted for about 36 hours. During that time, he barricaded himself in his apartment and shot himself. When FedEx learned of the episode, a safety manager prohibited him from working as a road driver pending a review of FMCSA regulations and guidelines and a medical recertification. Based on the FMCSA’s medical guidelines, and without speaking to the employee or his doctors, the manager determined that the employee had to wait 12 months before he could be recertified to drive a commercial vehicle.

Released from hospital. After his release from the hospital, the employee told his supervisor he was ready to return to work. Approximately five weeks later, the company’s disability insurer denied his disability application, and about a month after the incident, his psychiatrist indicated that he could return to work at that time. In May 2013, more than six months after his disqualification, HR informed the employee’s supervisor that the employee had to be returned to a non-driving position or terminated. There were no positions available, however.

The employee was then contacted by an employee relations advisor who told him that FedEx should have allowed him to return after six months because he had only suffered a brief psychotic break, was not depressed, and did not have a mental illness. She also told him he needed to take part in a reasonable accommodation review. As part of the review process, the ER advisor and the employee’s supervisor completed a form indicating the employee was able to perform all functions of his job but could not get a valid DOT medical card until 12 months after his suicide attempt.

Two options. The employee was subsequently offered a general leave until the end of the 12-month waiting period or a temporary assignment to a dock worker position. Both options, however, included resetting his job class seniority to his return date. Because job class seniority determines which routes drivers drive and how much they earn, by losing his job class seniority, the employee would earn significantly less when he returned to a driving position.

Medical certification exam. After the employee called a regional VP of operations, the company scheduled a medical exam by a DOT certified physician. Before the exam, FedEx sent the physician the FMCSA medical guidelines and a newspaper article about the employee’s suicide attempt. After reviewing the guideline on major depression, the physician told the employee he had to wait a year from his suicide attempt to have a medical certification exam. Although the employee’s psychiatrist submitted a letter stating that his “mood disorder” had improved and he could return to work immediately, FedEx refused to allow him to return as a driver at that time. The employee then accepted the offer of general leave until the end of the 12-month period.

Reliance no medical guidelines. Even assuming he could show he was qualified to work as a road driver and that FedEx regarded him as disabled by disqualifying for one year, the employee was unable to establish pretext. Under the applicable DOT regulations, observed the court, a person is not qualified to drive a commercial motor vehicle if he has a “mental, nervous, organic, or functional disease or psychiatric disorder likely to interfere with his/her ability to drive [the vehicle] safely.” Further, the FMCSA medical guidelines recommend a minimum one-year symptom-free waiting period “following a severe depressive episode, a suicide attempt, or a manic episode” before a driver may receive a medical examination for DOT certification.

Although the employee argued that FedEx relied on guidelines applicable to a diagnosis of major depression and the guideline applicable to his diagnosis of brief reactive psychosis recommends a waiting period of only six months, a consultation report signed after his suicide attempt indicated he had a history of depression and his diagnosis was “[m]ajor depression with psychotic features versus brief psychosis.” Further, said the court, the guidelines note that if more than one waiting period applies, the medical examiner should “examine the driver for certification after completion of the longest waiting period.” Thus, said the court, based on the directives and the employee’s suicide attempt, FedEx reasonably determined that the one-year waiting period should apply before the employee could obtain certification to drive a commercial vehicle.

Job class security. As to resetting the employee’s job class seniority, FedEx argued that it has an unwritten policy providing that when a driver is disqualified by its safety division from driving a commercial vehicle, the driver’s job class seniority is protected only for the first six months of disqualification, unless the driver obtains certain approved leaves of absences. Although the employee claimed this was contrary to FedEx’s written policy providing that “[e]mployees returning from a general leave of absence in accordance with an approved timeframe will be restored to the same seniority that they had prior to going on leave,” he failed to show he was on approved general leave when FedEx made the decision to reset his job class seniority.

Indeed, said the court, the record showed he did not contact FedEx regarding his leave status after his application for STD benefits was denied. Nor did he dispute FedEx’s assertion that it had no documentation showing he requested any leave when his STD benefits were denied. Therefore, because FedEx made the decision to reset his class seniority at a time when he was not on an approved general leave of absence, its decision was not contrary to its written policy. In addition, the employee admitted he was aware of the unwritten policy at issue so FedEx’s failure to produce a written policy on point did not undermine its contention.

Not similarly situated. And while the employee pointed to five coworkers who returned to work after one year or more without resetting their job class security, four were on approved leaves of absence and thus were not similarly situated to the employee. The fifth, who was disqualified for more than a year due to a pending criminal charge, retained his job seniority when he returned to his driver position after his criminal charge was stricken from his record. According to the company, it made an exception to its unwritten driver disqualification policy because the judge presiding over the employee’s case took more than six months to resolve and strike the charge from the employee’s record, and “the delay was beyond [the employee’s] control.” Moreover, according to FedEx, that worker never missed work. Thus, said the court, FedEx’s actions with respect to that driver did not show its decision to reset the employee’s job class seniority was motivated by discriminatory animus.

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