Former Crete driver asks for further review in discrimination lawsuit

By Mark Schremmer, Land Line staff writer | Wednesday, October 26, 2016

Robert J. Parker, a former truck driver for Crete Carrier, has filed a petition for an “en banc” review in a lawsuit that accuses his former employer of discriminating against him because of his size.

Earlier this month, an appeals court ruled that Crete had the legal right to suspend a driver after he refused to undergo testing to see if he suffered from obstructive sleep apnea. An en banc review, which is a case that is heard before all of the judges of the court rather than by a panel of judges, is typically used for unusually complex cases.

In the petition filed on Oct. 24 to the U.S. Court of Appeals for the Eighth Circuit, Parker’s attorney, Joy Shiffermiller, says the appeals panel incorrectly found that the Americans with Disabilities Act permits employers to require a class of employees to get medical exams and that it improperly relied on Medical Review Board recommendations to make the judgment.

The petition cited five cases – Cossett v. Minnesota Power & Light (8th Cir. 1999); Wisbey v. City of Lincoln, Nebraska (8th Cir. 2010); E.E.O.C. v. Wal-Mart Stores (8th Cir. 2007); Hawkins v. Anheuser-Busch (8th Cir. 1983); and Kirby v. Colony Furniture Co. (8th Cir. 1980) – that Parker’s counsel believes to be in conflict with the recent appeals court decision.

Parker also argues that the panel incorrectly applied the case, Conroy v. New York State Department. of Correctional Services (2nd Cir. 2003).

“The Panel misapplied the Conroy case and erroneously found that an employer can require a medical exam from a class of employees despite no individualized evidence of business necessity,” the petition stated.

In July 2013, Crete told Parker that it was scheduling him for an in-lab sleep study because of his size. Crete required sleep studies for drivers with a body mass index of 35 or more. Parker’s most recent Department of Transportation physical at the time listed his BMI as above 35. According to court documents, Parker was 6-foot-5 and 311 pounds, which equated to a BMI of 36.9.

Parker responded by visiting a certified physician’s assistant, who wrote a prescription stating, “I do not feel it is medically necessary for Robert to have a sleep study.”

Despite the note, Crete responded by taking Parker out of service. Parker, who started working for Crete in 2006, continued to refuse to undergo Crete’s sleep study. He alleged that the request violated the Americans with Disabilities Act, noting that he had no documented sleep issues and that he had been recognized for his accident-free record.

“Parker has not had any medical incident which required sleep apnea testing, or testing for any other sleep disorders,” the petition stated.

Parker contends that he passed medical examinations in 2012 and 2014 and that neither exam indicated concerns of respiratory dysfunction or of his ability to safely drive a commercial truck.

“Crete cannot by law require the sleep study without showing it was necessary,” the petition stated. “Further, Parker presented the credible medical documentation indicating that there was no medical necessity for a sleep study, which was ignored by the Appellee.”

Citing the Conroy case, the appeals court said Crete satisfied the burden of showing a reasonable basis for concluding that the class poses a genuine safety risk, and the exam requirement allows the employer to decrease that risk effectively.

“The Panel’s reasoning is flawed for a couple of reasons,” Shiffermiller wrote. “First, the fact that the Americans with Disabilities Act permits exams for all new hires is not persuasive, because the Americans with Disabilities Act permits a post hire pre-employment physical, as indicated, but specifically prohibits medical examinations and inquiries of existing employees.

“On behalf of Parker, I would submit the statute actually mandates an individualized inquiry and not an assumption that all truck drivers with a BMI over any specified level should submit to a sleep study or be presumed to be incapable of safe driving, despite all evidence to the contrary. It is submitted that to adopt the Appellee’s position flies in the face of the statutory language and the body of case law requiring individualized direct threat evidence.”

Parker’s counsel also argued that the panel shouldn’t have used the Medical Review Board’s draft recommendations as a basis for its decision without citation by either party nor any opportunity for comment.

Related articles:
Court sides with Crete in sleep study lawsuit

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