Labor & Employment Law Daily FedEx driver who attempted suicide during psychotic break can’t revive ADA regarded-as claim
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Monday, August 24, 2020

FedEx driver who attempted suicide during psychotic break can’t revive 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.

A FedEx driver who was disqualified from driving a truck for one year after he attempted to kill himself during a “brief psychotic disorder” failed to convince the Eleventh Circuit that the package delivery company’s reliance on the one-year waiting period in the “Major Depression” section of the applicable guidelines was pretext for disability discrimination. Although he argued that FedEx should instead have applied a different section that would have disqualified him for a shorter period of time, there was no evidence the company disqualified him because he was disabled or because it perceived him as being disabled, the appeals court stated in an unpublished decision affirming summary judgment against his ADA claims (Vaughn v. FedEx Freight, Inc., August 19, 2020, per curiam, unpublished).

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, while driving on his regular route, he began having “thoughts of craziness.” Driving back the next morning, he experienced hallucinations and paranoia. When he got home, he told his wife he was going to die that day, went to his bedroom, grabbed a handgun, and shot himself. His psychiatrist subsequently determined that he suffered only a “brief psychotic disorder” and could return to work without any medical restrictions.

One-year waiting period. While recovering in the hospital, the employee applied for short-term disability leave. When his request was denied several weeks later, the employee called his supervisor, who told him that “safety” had determined he could not go back to work for a least a year. In fact, FedEx’s safety compliance manager had concluded that the guidelines in the FMCSA’s medical examiner handbook required a one-year waiting period from the date of a suicide attempt before a person could be medically certified to drive a truck.

In May 2013, FedEx determined that the employee either needed to return to a nondriving position if one was available (one wasn’t), or it would “proceed with separation.” In a conversation with an HR advisor, the employee argued that he should have had to wait only six months to resume work as a truck driver because he suffered a brief psychotic episode and was not depressed. The HR advisor, however, told him he had been on an unapproved leave and needed to request a reasonable accommodation review to continue working for FedEx.

In response to the employee’s subsequent request to work as a dock worker as long as it did not affect his seniority and full-time status, FedEx offered the employee a general leave of absence through September 2013, which was the end of the one-year waiting period, or temporary reassignment to part-time dock position. In either case, however, he would lose his job class seniority. The employee then contacted a regional VP, again contending that FedEx applied the wrong guideline and should have allowed him to resume work after six months based on the guideline for brief psychotic disorders.

Let a physician decide. After the VP contacted the company’s legal, HR, and safety departments, FedEx chose to “let a physician decide” if the employee could be certified to drive sooner than 12 months. The company scheduled a doctor’s appointment for the employee but prior to the appointment, the safety manager sent the doctor a newspaper article about the employee’s suicide attempt and the guideline for major depression from the FMCSA handbook. When the employee arrived for the appointment, the doctor read something to him about major depression, said he had to wait a year from his suicide attempt to be medically certified, and walked out of the room.

The employee’s personal doctor then examined him and determined that he was “physically able to drive a commercial vehicle.” His psychiatrist also determined that his “mood disorder” had improved, he was “stable and doing very well,” and “should return to his work as a professional truck driver immediately.” FedEx, nonetheless, affirmed that recertification was not possible until the end of the one-year waiting period. The employee then went on a general leave of absence and when he returned to work as a truck driver at the end of the 12-month waiting period, his job class seniority was reset to the lowest level.

Lower court proceedings. The employee sued FedEx, asserting disability discrimination under the ADA and the district court granted summary judgment in the company’s favor.

Weak and arguably false. On appeal, the employee argued that FedEx’s nondiscriminatory reason for disqualifying him—the appliable guidelines required a 12-month waiting period before a truck driver could be medically recertified after a suicide attempt—was “weak, and arguably false,” because his “actual medical condition, brief psychosis, did not require 12 months off.” In other words, observed the court, he argued that FedEx applied the wrong guideline.

Handbook sections. The FMCSA handbook, the court pointed out, includes a section on psychological disorders with recommended waiting periods for different disorders depending on an employee’s symptoms. FedEx relied on the “Major Depression” section, which recommends a minimum one-year waiting period following an attempted suicide. The employee, however, argued that FedEx should have instead referred to the section on “Schizophrenia and Related Psychotic Disorders,” which lists “brief reactive psychosis”—the condition with which he had been diagnosed—as a related condition and recommends a six-month waiting period.

But even if the “Major Depression” section was not applicable to the employee based on his diagnosis, that did not mean FedEx’s reliance on it was pretextual, said the court. Indeed, the court pointed out, the section notes that symptoms of major depression include “suicidal thoughts or attempts.”

Common practice. Further, in response to the employee’s assertion that it should have applied a different section, FedEx arranged for him to meet with the doctor, who also determined that the employee was subject to the 12-month waiting period. Rejecting the employee’s contention that FedEx interfered with the doctor’s assessment, and therefore could not rely on it, the court pointed out it was common practice for FedEx to send a doctor relevant information before an employee’s certification exam. “At best, [the employee] has showed only that FedEx’s reliance on the ‘major depression’ section was mistaken,” said the court, and an employer’s mistaken belief is insufficient to establish pretext.

And even if there was evidence showing FedEx knew it applied the wrong section, “all that might show is ‘pretext of something,” the court stated, noting a lack of evidence showing FedEx disqualified the employee because he was disabled or because it perceived him as disabled.

Job class security. Next, the employee argued that FedEx’s reason for resetting his job class seniority—he had been deactivated for over six months as a commercial driver without a leave of absence that protects job class security—was pretextual because that policy was unwritten and contrary to a different written policy. However, the employee knew that FedEx employees would lose their job class seniority if they were absent on unprotected leave for longer than six months. As to the company’s written policy, which stated that “Employees returning from a general leave of absence in accordance with an approved timeframe will be restored to the same or equivalent position with the same pay, benefits, seniority, and other terms and conditions of employment that they had prior to going on leave,” the court found it notable that it did not say employees on unapproved leaves of absence would have their job class seniority protected.

Further, it was undisputed the employee was on an unapproved leave for at least six months before he was placed on a general leave after he requested a reasonable accommodation review. While he claimed he was on general leave before he requested the review, there was no evidence to support that. Accordingly, said the appeals court, the court below did not err in concluding that the employee failed to establish a triable issue of pretext.

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