Frilando v. Bordentown Driver Training Sch., LLC
| Decision Date | 27 July 2017 |
| Docket Number | Civ. No. 2:15-cv-02917-KM-JBC |
| Parties | KENNETH FRILANDO, Plaintiff, v. BORDENTOWN DRIVER TRAINING SCHOOL, LLC d/b/a SMITH & SOLOMON, Defendant. |
| Court | U.S. District Court — District of New Jersey |
Before the Court is a motion for summary judgment pursuant to Fed. R. Civ. P. 56 (ECF No. 39) brought by the defendant, Bordentown Driver Training School, LLC d/b/a Smith & Solomon ("Bordentown"). Bordentown runs training classes for people who seek commercial driver's licenses ("CDLs"). In his Complaint (ECF No. 1), the plaintiff, Kenneth Frilando, alleges that Bordentown has violated Title III of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12181, et seq., as well as the New Jersey Law Against Discrimination (the "NJLAD"), N.J. Stat. Ann. § 10:5-1, et seq., by refusing to accommodate his disability in a CDL training course in which he attempted to enroll. Frilando asks for declaratory, injunctive, and monetary relief, including an order that Bordentown implement policies and accommodations for serving deaf and hard-of-hearing students.1
Bordentown asks this Court for summary judgment and a dismissal of Frilando's Complaint on four grounds. Bordentown says it cannot reasonably accommodate Frilando's disability without (1) fundamentally altering its training course; (2) threatening the health and safety of the public; and (3) incurring an undue financial burden. Bordentown also argues (4) that even setting aside Frilando's hearing disability, he was not medically qualified to participate in the training course.
This case presents knotty legal, not to say social, issues. Mr. Frilando admirably seeks to overcome a hearing disability. He believes that his disability should not limit his employment options, an aspiration that finds considerable support in federal law. Federal regulations do, however, place limitations, based on safety concerns, on a deaf person's obtaining a CDL. Mr. Frilando insists that those limitations can be accommodated by certain means, including the use of an American Sign Language interpreter, and that he will be entitled to an ongoing waiver of the hearing requirement. And of course Mr. Frilando is not yet applying for the CDL itself; he only seeks an accommodation sufficient to permit him to complete the Class A training course at Bordentown.
On the other hand, no one disputes that Bordentown is a highly reputable driver training school, with an interest in graduating students who will qualify for a CDL. Of course a person need not meet CDL licensing standards before being trained. The training process itself, however, involves the operation of heavy machinery in the yard and on public roads, raising immediate safety concerns that cannot simply be bucked to the licensing phase. There is evidence in the record that Bordentown behaved responsibly and even sought regulatory guidance as to how it might practically accommodate Mr. Frilando's disability. But Bordentown fears that it will have to impair its educational mission with respect to other students, as well as incur a potentially ruinous expense, in order to accommodate a single student who may not ever be eligible for a license.
Having reviewed the record, I conclude that these issues are just that—issues, which will need to be submitted to a fact finder for decision. These difficult questions, requiring a sensitive balance of competing policies, should be aired with the benefit of a full factual record. Because there are disputed issues of material fact, Bordentown's motion for summary judgment will be denied.
Bordentown is a New Jersey-licensed organization that operates Commercial Driver's License ("CDL") training schools throughout Delaware, New Jersey, and Pennsylvania. According to Bordentown, because its training programs involve the use of commercial motor vehicles ("CMVs"), it is classified as an interstate motor carrier and must adhere to the Federal Motor Carrier Safety Regulations ("FMCSRs"), which are issued by the Federal Motor Carrier Safety Administration (the "FMCSA"). (Def. SUF ¶¶ 2-3; Def. Ex. 1, ¶ 4)2 The FMCSRs define a CMV to include "any self-propelled or towed motor vehicle used on a highway in interstate commerce" that "[h]as a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,0001 pounds) or more." (Id. ¶ 4 (quoting 49 C.F.R. § 390.5)) A state-issued CDL is generally required before a person is permitted to drive a CMV alone.3
Frilando has been deaf since birth. With hearing aids, he can detect loud noises such as sirens, gunshots, explosions, fire alarms, car horns, doorbells, and ringing phones, but he cannot identify their source or direction. (Def. SUF ¶¶ 116-117; Pl. SUF ¶ 1) He communicates primarily by using American Sign Language ("ASL") (Pl. SUG ¶ 1), but also by written English and gestures. (Pl. SUF ¶ 3) Frilando learned to drive a car with an instructor in the front seat and an ASL interpreter in the back seat. During full stops, the interpreter would convey to Frilando the directions spoken by the instructor. (Pl. Resp. ¶¶ 7-8; Pl. SUF ¶ 6-8) Frilando has held a non-commercial driver's license for over thirty years, but now wants to drive a CMV. (Pl. SUF ¶ 6)
An individual who wishes to obtain a CDL must pass an FMCSR-prescribed medical fitness examination and obtain a medical certificate from a medical examiner who is certified and listed on the FMCSA's national registry. (Def. SUF ¶ 22) To obtain and maintain a CDL, an individual also must be capable of passing an FMCSR-prescribed hearing test:
A person is physically qualified to drive a commercial motor vehicle if that person . . . [f]irst perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 50 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5 — 1951.
(Def. SUF ¶ 28 (quoting 49 C.F.R. § 391.41(b)(11)) Since 2013, however, the FMCSA has waived the hearing test requirement for certain individuals. (Id. ¶ 29-31)
Requirements for CDL training courses—as opposed to requirements for the CDL itself—are less clear. The FMCSA has not regulated or offered guidance as to how CDL trainers should accommodate individuals who have received FMCSA hearing-test waivers. (Def. SUF ¶ 33) Bordentown's Chief Operating Officer, John Diab, testified that in 2014 he asked the FMCSA for guidance on that issue. FMCSA allegedly replied that there is no test or acceptable training program for deaf CDL applicants. (Id. ¶ 39-41) Diab says he was told that hearing-test waivers were intended to allow individuals who had lost their hearing since receiving a CDL to continue to drive; the FMCSA had not considered how unlicensed, hearing-impaired individuals could be granted waivers in order to be trained. (Id. ¶ 40) Diab testified that he also asked administrators from the American Association of Motor Vehicle Administrators (the "AAMVA") for guidance; they told him that the FMCSA had asked the AAMVA to create a test for deaf CDL applicants, but that the AAMVA had declined to do so, citing safety concerns.4 (Id. ¶ 41)
Frilando twice sought to obtain an FMCSR-compliant medical certificate. (Id. ¶ 120) First, he obtained a medical certificate from Dr. Lawrence Marino. Dr. Marino, however, was not listed on the FMCSA's national registry. (Def. SUF ¶¶ 121-126) When Frilando realized this, he sought a second certificate from Dr. Kwi Y. Yu, who is FMCSR-certified. Dr. Yu issued Frilando a medical certificate, dated July 30, 2015 (Def. Ex. 20). Dr. Yu now says, however, that he did not know that Frilando had previously been diagnosed with sleep apnea and atrial fibrillation ("A-fib"). Bordentown implies that Frilando purposely withheld this information; Frilando says that Dr. Yu never elicited it. Dr. Yu apparently attempted, with limited success, to communicate with Frilando by speaking loudly. (Def. SUF ¶¶ 132-33; Pl. Resp. ¶¶ 132-33) Dr. Yu has since testified that he would not have issued Frilando a medical certificate had he known about Frilando's other medical conditions; sleep apnea, he said, might prevent Frilando from ever being medically cleared under the FMCSRs. (Id. 128-135) Frilando, however, has adduced evidence that the sleep problem was minor, easily remedied by using a new pillow, and there is nothing further in the record indicating the extent to which the A-fib condition would pose a danger. (See Def. Ex. 3 at 144-51)
On January 13, 2015, between the time he received an invalid medical certificate from Dr. Marino and a facially valid, but now questioned, medical certificate from Dr. Yu, Frilando applied for and received a 90-day hearing test waiver from the FMCSA. It states that the FMCSA "is granting this waiver . . . so [Frilando] may complete driver training school." (Def. Ex. 21) The FMCSA issued Frilando a second, two-year waiver on March 29, 2015. (Def. SUF ¶¶ 138-139) Bordentown claims that neither hearing-test waiver is effective because the FMCSRs require an applicant seeking a waiver to provide a medical certificate that is valid. (Id. ¶ 140)
The FMCSRs require that all state-level CDL examinations include a knowledge test and a skills test, covering specific, defined subject areas. (Def. SUF ¶ 42) The knowledge test contains FMCSA-approved questions. The skills test comprises three phases, covering pre-trip vehicle inspection skills, basic vehicle control skills, and safe on-road driving skills. An applicant must complete all four test components to pass the CDL examination. (Id. ¶ 44-45)
FMCSR standards...
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