Equal Emp't Opportunity Comm'n v. Old Dominion Freight Line, Inc.

• Decision Date: 24 June 2015
• Docket Number: CASE NO.: 2:11-CV-02153
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PLAINTIFF v. OLD DOMINION FREIGHT LINE, INC. DEFENDANT
• Court: U.S. District Court — Western District of Arkansas

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PLAINTIFF v. OLD DOMINION FREIGHT LINE, INC. DEFENDANT

CASE NO.: 2:11-CV-02153

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION

June 24, 2015

MEMORANDUM OPINION

This matter came on for a jury trial the week of January 12, 2015. The jury was asked to determine whether Mr. Charles Grams ("Grams"), on whose behalf Plaintiff Equal Employment Opportunity Commission ("EEOC") brought suit, had been discriminated against by his former employer, Defendant Old Dominion Freight Line, Inc. ("Old Dominion"), in violation of the Americans with Disabilities Act ("ADA"). At the conclusion of the four-day trial, the jury was instructed on the applicable law, and the case was submitted on interrogatories. When asked, "Do you find by the greater weight of the evidence that Old Dominion discriminated against Grams because of a disability in violation of the Americans with Disabilities Act ('ADA')," the jury responded in the affirmative and awarded Grams $119,612.97 in back pay. On January 16, 2015, The Court entered Judgment on the jury's verdict.

In its post-trial motions, the EEOC asks the Court to do four things: determine whether Old Dominion's self-reporting policies violate the ADA, consider enjoining Old Dominion from continuing to enforce those policies, order Old Dominion to reinstate Grams and pay him all prejudgment interest associated with the jury's award of back pay, andreimburse the EEOC for certain costs. Old Dominion opposes all of the EEOC's requests and asks the Court to vacate the jury verdict and enter judgment as a matter of law as to Old Dominion, or, in the alternative, to order a new trial or to reduce the amount of the jury's verdict, which Old Dominion argues is excessive and unsupported by the evidence. As to the EEOC's calculation of its taxable costs, Old Dominion makes specific objections. The Court will address each of these motions in turn.

I. LEGALITY OF OLD DOMINION'S POLICY

The Court's initial task is to rule on the EEOC's request for injunctive relief as to Old Dominion's company policy regarding the self-reporting of an alcohol problem ("Old Dominion's Policy," or sometimes simply the "Policy") violates the ADA. And, more specifically, as a threshold matter, whether Old Dominion's Policy violates the ADA as a matter of law.

Towards the end of the jury trial, after the parties rested their respective cases, the Court conducted a jury instruction conference with the attorneys and announced conclusions of law from the bench, albeit in an abbreviated form. The Court stopped short, however, of making a final ruling concerning the EEOC's request for a permanent injunction as a matter of law. The Court previewed its legal rulings in order to explain why the vast majority of the parties' proposed jury instructions addressed issues of law for the Court, and thus would not be submitted to the jury. The Court determined that the jury's sole task was to decide whether Grams had been the victim of workplace discrimination due to a disability and, if so, to arrive at an award of compensatory damages. The final jury instructions focused on the elements of a disability discrimination claim pursuant to theADA.¹ It is now for the Court to determine whether Old Dominion's company-wide Policy violates the ADA as a matter of law, and if so, whether the Policy should be enjoined. The following findings of fact and conclusions of law underlie the Court's reasoning.

A. Findings of Fact

1. Old Dominion is a for-hire motor carrier company providing worldwide transportation services.

2. Old Dominion has a written Policy concerning what to do when a driver self-reports an alcohol problem.²

3. According to the Policy, when a driver self-reports an alcohol problem that does not implicate prohibited conduct, he is immediately suspended from driving and instructed to consult with a Substance Abuse Professional ("SAP") qualified by the Department of Transportation ("DOT"), as per 49C.F.R. §§ 40.281(a) and 40.285(a).

4. If the SAP concludes that the driver has a "current clinical diagnosis of alcoholism," Old Dominion's Policy then considers the employee to be permanently disqualified and prohibited from ever returning to a driving position, regardless of the circumstances, and without regard to any potential accommodations.³

5. Old Dominion's Policy has never been widely disseminated throughout the company, even to supervisors, and is not provided or explained to drivers. Old Dominion believes-correctly-that its drivers' knowledge of the Policy would likely discourage them from self-reporting such problems.

6. Under Old Dominion's Policy, a driver who has been suspended due to a current clinical diagnosis of alcoholism may be considered for a non-safety-sensitive, non-driving position, but only if the driver first provides proof to Old Dominion that he has entered into a rehabilitation or treatment program for alcohol abuse.

7. Grams, the former Old Dominion driver who prevailed at the jury trial of this matter on his direct disability claim, never violated the DOT drug and alcohol regulations listed at 49 C.F.R. §§ 382.201-382.215 ("Subpart B"), from the date Old Dominion hired him on November 29, 2001, until he was suspended on June 29, 2009, following his self-reporting of alcohol addiction.

8. Old Dominion was aware that Grams desired to return to work as a dock worker for Old Dominion, at least temporarily, until he was able to find a job working as a driver for another company.

9. Old Dominion believes that its Policy conforms with and is mandated by DOT regulations.

10. Old Dominion believes that its Policy is further justified by statistical and anecdotal proof that the relapse rate on alcohol addiction is very high.

11. Old Dominion's corporate leadership did not consider the ADA when implementing and enforcing its Policy.

12. Old Dominion's application of its Policy resulted in Grams' termination, which the jury found was an adverse employment action that violated the ADA.

B. Conclusions of Law

According to the DOT's implementing regulations at 49 C.F.R. §§ 40.281-313 (known as "Subpart O"); and 49 C.F.R. §§ 382.201-215 (known as "Subpart B"), a driver of a commercial vehicle who engages in certain prohibited conduct concerning the misuse of alcohol will be ineligible to return to a safety-sensitive position unless he first completes an evaluation, referral, and education/treatment process, as directed by a DOT-certified SAP. The "prohibited conduct" listed in Subpart B includes: reporting for duty while having a blood alcohol concentration of 0.04 of greater, using alcohol while driving, driving within four hours of using alcohol, using alcohol sometime within eight hours following an accident, or refusing to submit to a random alcohol test. See 49 C.F.R. §§ 382.201-382.215.

According to Subpart O, "when [an employee] ha[s] violated DOT drug and alcohol regulations, [the employee] cannot again perform any DOT safety-sensitive duties for any employer until and unless [the employee] complete[s] the SAP evaluation, referral, and education/treatment process set forth in this subpart and in applicable DOT regulations." 49 C.F.R. § 40.285(a). The procedure in Subpart O describes the general rule that an employer must follow when a driver has violated DOT regulations by engaging in one or more prohibited acts. When a driver violates Subpart B, compliance with Subpart O is mandatory, and the employer lacks discretion to allow the employee to return to driving unless the employee first successfully completes the SAP-recommended evaluation, referral, and treatment process.⁴

There is a regulatory exception to the general rule. Employers may implement written policies concerning the self-reporting of "alcohol misuse."⁵ See 49 C.F.R. § 382.121(a). If the policy meets the requirements set forth in §382.121(b), then the SAP evaluation and treatment protocols found in Subpart O do not apply, and the employee isnot subject to all of the collateral consequences of violating the DOT's alcohol regulations. A regulatory compliant policy must, among other things, "prohibit the employer from taking adverse action against an employee [who makes] a voluntary admission of alcohol misuse." 49 C.F.R. § 382.121(b)(1).

According to the Federal Motor Carrier Safety Administration's ("FMCSA") interpretive guidance, the purpose of these self-reporting policies is to encourage employees to disclose alcohol addiction problems before they impact job performance. The public policy expressed by the DOT in promulgating these regulations is as follows:

The FMCSA's objective is to deter employees from operating a CMV [Commercial Motor Vehicle] if they are using a controlled substance or misusing alcohol. If an employer has a self-admission program, the intent of that program is to allow a driver to disclose a problem and not be subject to DOT sanctions. However, the employer's program is not an excuse for an employee to abuse the good faith intent of the program. The goal is to encourage employees to disclose a drug or alcohol problem prior to reporting for duty on any given day. Once an employee has reported for duty and participated in a safety-sensitive function, it will be too late to self-disclose under the provisions of the employer's self-admission program.

66 FR 43097-01.

In the case at bar, it is undisputed that Grams did not engage in any prohibited conduct constituting a violation of Subpart B. He was not, therefore, subject to the general rule explained above, as set forth at 49 C.F.R. § 40.285(a), which would require him to submit to evaluation and treatment as recommended by a DOT-certified SAP. Grams could not avail himself of a regulatory compliant self-reporting policy, because Old Dominion had intentionally failed to adopt such a policy. Grams did, however, notify his supervisor prior to reporting for driving duty that he had been abusing alcohol on his personal time and thought he...