Judge recuses himself from lawsuit alleging trucking company violated disability act

By Tyson Fisher, Land Line staff writer | Tuesday, September 11, 2018

A federal judge in Colorado has recused himself from a case filed against a trucking company by the Equal Employment Opportunity Commission. The judge dropped out of the disability bias suit due to questions of his own bias since his son is a quadriplegic.

On Aug. 30, U.S. District Court Judge Lewis Babcock recused himself from a case filed by the EEOC against Denver, Colo.-based Western Distributing just one day after the trucking company filed a motion requesting the recusal. The motion was filed after a July 24 hearing where Judge Babcock was “a little bit worried about his ability to be impartial to the individual claimants” and acknowledged he “may have an issue of the appearance of lack of impartiality” adjudicating individual recovery of damages, according to court documents.

During that hearing, Judge Babcock said the following:

I'm going to disclose something at the outset. My son is a quadriplegic. He requires the assistance of a certified nurse assistant seven days a week, and he is wheelchair bound in a power wheelchair. This case involves ADA accommodation, and when we get to the question of compensatory damages, I'm a little bit worried about my ability to be impartial to the individual claimants. This is a claim under the Americans with Disabilities Act.

Consequently, Judge Babcock voluntarily stepped down from the case.

Failing to accommodate, refusing to rehire
The case in question was filed in July 2016 by the EEOC claiming Western Distributing violated the Americans with Disabilities Act. Western is being accused of failing to accommodate, terminating and refusing to rehire qualified employees with disabilities. Furthermore, EEOC alleges that Western administered policies which effectively limited opportunities for disabled employees and retaliated against those who engaged in lawful protected activities.

More specifically, Western is accused of having a “maximum-leave” practice that terminates employees who are unable return to work prior to or upon expiration of approved medical leave of 12 weeks or less. The policy required employees who are off work for medical reasons to receive a full duty medical clearance prior to returning to work. Employees who could return to work with accommodations were not allowed to do so, and employees were discharged upon expiration of medical leave, regardless of whether they could have returned with some accommodation.

According to the lawsuit, Western denied employees’ request for an extension on their medical leave, regardless of how short the extension was. Western also denied requests for accommodations.

The requirement of “full duty” to return to work denied employees the opportunity to work with medical restrictions. A discharge determination was made without a process that could determine if the employee could perform essential function of the job or to discuss potential reasonable accommodations.

Heart surgery recovery
At least one over-the-road trucker experienced such discrimination. In March 2009, a trucker for Western informed the company that he had developed a heart condition that required open heart surgery. Shortly after, the driver began his Family Medical Leave Act leave.

In May 2009, Western received a note from a doctor that stated the trucker was OK to return to commercial driving with no restrictions. However, Western required a release from its own doctor. The contracted doctor determined that the driver could not return for work until at least June 26, 2009.

Western denied the driver’s request to work in another capacity in the meantime. The trucker’s FMLA leave expired on June 17, 2009, just nine days before the scheduled appointment with the company’s doctor. Western discharged the driver that same day.

The company doctor ended up clearing the driver for work on June 26. However, the driver was told he would need to be rehired as a new employee. The lawsuit alleges that “numerous other qualified employees with disabilities have been denied the opportunity to work.”

 

 

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