By Brandi O. Brown, J.D. A narcoleptic truck driver rendered homeless after his would-be employer denied him a job and disseminated a misleading drug test result received a renewed chance to pursue his discrimination suit after the Fourth Circuit ruled that the dismissal of his claim was erroneous. Although the district court dismissed the employee’s claim because of a FMCSA regulation that required pursuit of administrative remedies, the appeals court explained that the regulation in question was inapplicable. In an unpublished decision, the appeals court vacated the lower court’s judgment and remanded (Lisotto v. New Prime, Inc. dba Prime, Inc., May 3, 2016, per curiam). Taking amphetamine for narcolepsy. In 2010 the employee applied for a driver position with the employer. He was approved to attend the employer’s orientation program, which was in another state, where he would also be required to pass a physical examination and drug screening. For some time the employee had suffered from a sleep disorder that his doctor believed to be narcolepsy, and he obtained a letter from his physician explaining that he took a prescribed amphetamine to manage the disorder. His physician offered the opinion that the prescribed medication would not adversely affect his ability to operate a commercial motor vehicle safely. Quit old job, left for orientation. The employee quit the corrections job he held at the time and traveled to attend the orientation. During the physical examination he explained to the Medical Review Officer (MRO) that he was taking an amphetamine to treat his condition, showed him the prescription, and gave him his doctor’s letter. The MRO did not determine that the employee was unqualified for the job, but told him that he needed to be off of the amphetamine for one month and that the employer would accept only one particular medication for his condition. He told the employee he would need to be on that medication for six weeks before beginning employment. He was pulled out of orientation because he had tested positive for amphetamines. The nurse who pulled him out instructed him to return home and start taking the preferred medication. Denied job, became homeless. He returned home and two days later was told by the employer to have his physician contact the MRO. His physician tried to reach the MRO without success. The employee began taking the new medication and informed the recruiter that he had complied with the directive. However, he was told flatly by the personnel office that he could not work for the employer because he had tested positive for amphetamines. He wrote to the MRO, whose belated response stated, “Even though you had a prescription for amphetamines, in my opinion you have a disqualifying medical condition since narcolepsy is a safety concern.” Subsequently the employee participated in a sleep study and learned that his problem was sleep apnea, rather than narcolepsy. He began using a breathing machine at night, which alleviated his problems without the need for medication. He forwarded the new results to the MRO and asked him to clear his name, without success. The employee applied for other truck driving positions but was told he could not be hired because he had a record of amphetamine abuse. Ultimately he became homeless. District court dismissed. The employee filed suit after receiving a right-to-sue letter from the EEOC. The employer filed a motion to dismiss arguing that the employee failed to exhaust administrative remedies under 49 C.F.R. Sec. 391.47, which provides that the FMCSA resolves “conflicts of medical evaluation” in which a disagreement exists between the driver’s physician and the motor carrier’s physician regarding his qualifications. The district court dismissed the complaint without prejudice on this basis and the employee appealed. No “disagreement” alleged. The appeals court explained that contrary to the district court’s ruling, the employee did not claim there was a “disagreement,” which would require administrative review. Instead, the court explained, the employee contended that the employer discriminated against him by failing to hire him because of a positive test result that was erroneously verified and that the MRO failed to correct pursuant to regulatory procedure. One such regulation provides that the MRO has to determine whether a “legitimate medical explanation” exists for a confirmed positive result. Not based on letter. The appeals court agreed with the employee’s characterization. First, the court explained that the complaint could “only be read to lodge an ADA claim based on conduct leading up to” the employer’s failure to hire him. He did not allege that the employer failed to hire him because of the MRO’s letter regarding him having a disqualifying medical condition. Instead, he alleged that the employer failed to hire him even though he complied with the MRO’s requests and that it failed to accept the explanation for the positive drug test. He also alleged that the employer reported that test result to the DOT, the FMCSA, and others and failed to correct it. Thus, the court explained, any opinion the MRO might have had about his qualifications was not the basis for the employer’s refusal to hire him. No “disagreement” over qualification. In the time leading up to the hiring decision, the court explained, there was no “disagreement” about the employee’s medical qualifications. His doctor believed he was medically qualified if he took the proper medication. Similarly, the employer did not reject his application outright because of his condition and, instead, anticipated his ability to return to orientation and to be considered for employment after he switched to a different medication. Therefore, the court explained, the MRO agreed with the employee’s physician that the employee was qualified, so long as he took the right medication. There was no disagreement and, therefore, the employer’s reliance on that argument was misplaced. The appeals court vacated the district court’s judgment and remanded.
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