Kimmons v. First Transit, Inc.
| Docket Number | 3:21-cv-00768-SB |
| Decision Date | 08 September 2023 |
| Parties | WESLEY KIMMONS, Plaintiff, v. FIRST TRANSIT, INC., dba THE LIFT, Defendant. |
| Court | U.S. District Court — District of Oregon |
Plaintiff Wesley Kimmons (“Kimmons”) filed this action against his former employer, Defendant First Transit, Inc. (“First Transit”), alleging claims for violations of Title VII of the Civil Rights Act (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), and Oregon Revised Statutes (“ORS”) chapters 653 and 659A, and wrongful discharge. First Transit moves, pursuant to Federal Rule of Civil Procedure (“Rule”) 56, for summary judgment on all claims.
The Court has original jurisdiction over Kimmons's federal claims pursuant 28 U.S.C. § 1331 and 1343, and supplemental jurisdiction over his related state law claims pursuant to 28 U.S.C. § 1367 and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). For the reasons explained below, the Court grants in part and denies in part First Transit's motion.
BACKGROUND[1]
Kimmons is an African American man who was born in 1950. Kimmons began working for First Transit as a “LIFT” bus operator on February 1, 2010.[2] (Biggs Decl. ¶ 6, Snyder Decl. Exs. A-B.)
A LIFT bus operator drives a commercial motor vehicle (“CMV”) and, therefore, must comply with the regulations of the Federal Motor Carrier Safety Administration (“FMCSA”), an agency within the U.S. Department of Transportation (“DOT”). Consequently, Kimmons's employment was conditioned on being physically qualified to operate a CMV and pass a DOT physical.
Kimmons's employment records provided that his ability to pass a DOT physical and maintain his physical qualifications were part of his “essential” duties, responsibilities, and job tasks. (Kimmons Dep. 28:2-30:20, 32:13-35:15; Snyder Decl. Ex. B at 1; Sawyer Decl. Ex. A at 1) (bold and all caps omitted). Furthermore, because First Transit's CMV drivers are members of the Amalgamated Transit Union Local 757 (the “union” or “ATU”), Kimmons was subject to a collective bargaining agreement (“CBA”), which listed a driver's “[f]ailure to maintain a valid commercial driver[']s license and current medical certificate” as a “[c]ause[] for immediate discharge[.]” .
“Under [DOT] regulations, drivers must get medical examinations from FMCSA-certified examiners every two years[,] . . . [and] cannot operate [a CMV] unless [such] an examiner certifies them as physically qualified to do so.” Parker v. Crete Carrier Corp., 839 F.3d 717, 720 (8th Cir. 2016) (citing 49 C.F.R. §§ 391.41(a), 391.43(a), and 391.45(b)); see also 49 C.F.R. § 391.43(a), (f) ( that the “medical examination must be performed by a medical examiner listed on the National Registry of Certified Medical Examiners,” and “results [must] be recorded on the Medical Examination Report Form, MCSA-5875”). “However, if the driver's ‘ability to perform his or her normal duties has been impaired by a physical or mental injury or disease,' medical [examination and] certification is again required.” N.L.R.B. v. Pessoa Constr. Co., 632 Fed.Appx. 760, 763 (4th Cir. 2015) (brackets omitted) (quoting 49 C.F.R. § 391.45(g)).
During the driver's medical examination, also known as a “DOT physical,” the FMCSA-certified “examiner measures height and weight; takes a health history; tests vision, hearing, blood pressure, and urine; and physically examines numerous body systems.” Parker, 839 F.3d at 720 (citing 49 C.F.R. § 391.43). To obtain “certification, a driver must not have impairments that interfere with driving,” id. (citing 49 C.F.R. § 391.41(b)), such as a “current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure.” Pessoa, 632 Fed.Appx. at 763 (quoting 49 C.F.R. § 391.41(b)(4)); see also Soo Line R.R. Co. v. Werner Enters., 825 F.3d 413, 420 (8th Cir. 2016) ().
Kimmons worked out of First Transit's Nela Street location in northwest Portland. (Sawyer Decl. ¶¶ 1-2; Decl. Thomas Rockstead Supp. Pl.'s Resp. Def.'s Mot. (“Rockstead Decl.”) ¶¶ 3-4, ECF No. 47; Kimmons Decl. ¶ 11.) Kimmons reported to Benjamin Sawyer (“Sawyer”) and Jackie Moore (“Moore”), who respectively served as the Nela Street location's general manager and assistant general manager. (Sawyer Decl. ¶¶ 1-2; Kimmons Decl. ¶¶ 11, 28.)
Since at least 2017, Kimmons has taken a diuretic or “water pill[],” which causes him to urinate with greater frequency, for edema related to his heart and high blood pressure. (Kimmons Decl. ¶ 15.) That posed a problem for Kimmons because, often times, LIFT drivers transport people who cannot be left alone on the bus due to their disabilities, did not receive morning or afternoon breaks, and needed to find a public restroom instead of one reserved for Tri-Met drivers. (Decl. Warren Hoeft Supp. Pl.'s Resp. Def.'s Mot. (“Hoeft Decl.”) ¶ 6, ECF No. 46; Kimmons Decl. ¶ 14.)
Although Kimmons informed Sawyer of his use of a diuretic and need for scheduled bathroom breaks, Sawyer “told [Kimmons] that [First Transit] could not and would not schedule bathroom breaks for [him].” (Kimmons Decl. ¶ 15.) About a year later, in or around September 2018, Kimmons urinated into a can when he was on his unoccupied LIFT bus because he had not received a bathroom break and “urgently” needed to use the restroom given his use of a diuretic medication. (Id.; Hoeft Decl. ¶ 20; Snyder Decl. Ex. M.) First Transit discovered that Kimmons had done so when it was looking into an unrelated employment matter and reviewing video footage from the inside of Kimmons's bus.[3] (Dep. Benjamin Sawyer (“Sawyer Dep.”) 61:13-19, May 10, 2022.)
Sawyer discussed the footage with Kimmons and Kimmons's union shop steward, Warren Hoeft (“Hoeft”). (Kimmons Decl. ¶ 15; Hoeft Decl. ¶¶ 6, 15, 20; Sawyer Dep. 60:2162:5.) Sawyer warned Kimmons that a repeat incident would result in his termination, but he did not impose any discipline because “First Transit had an agreement with the union not to fish for disciplinary violations,” such as the “nonserious” violation that Kimmons committed and First Transit “discovered while looking for other issues.” (Hoeft Decl. ¶ 20; Kimmons Decl. ¶ 15; Sawyer Dep. 62:12-64:2; Decl. Robert Christiansen Supp. Pl.'s Resp. Def.'s Mot. (“Christiansen Decl.”) ¶ 17, ECF No. 58.)
Sawyer did not create or place any record about the incident or his warning in Kimmons's file, nor was he aware of anyone doing so. (Sawyer Dep. 60:21-63:4.) Hoeft, who had previously seen Kimmons's file, also stated that “there was no discipline or letter of warning in the disciplinary file over urinating into a container or can on a bus.” (Hoeft Decl. ¶¶ 18, 20.)
About four months later, in late December 2018, Kimmons contracted pneumonia and therefore requested and received medical leave. (Kimmons Decl. ¶ 16; Sawyer Dep. 64:2065:10.) Kimmons's primary care physician, Maung Myint, M.D. (“Dr. Myint”), completed a work status report reflecting that he placed Kimmons off work from December 31, 2018 through January 7, 2019 and deemed Kimmons able to return on January 8, 2019. (Snyder Decl. Ex. C.) Kimmons also requested and received approval for intermittent medical leave between January 1 and March 30, 2019, pursuant to the medical certification form that Dr. Myint submitted regarding Kimmons's inability to work during gout flare-ups. (Sawyer Dep. 65:11-66:5; Snyder Decl. Ex. D.)
In April 2019, Kimmons's former co-worker, Robert Christiansen (“Christiansen”), subpoenaed Kimmons to appear for a deposition scheduled later that month. (Kimmons Decl. ¶ 17.) Kimmons did not appear for his April 2019 deposition because he was “afraid [he] would be fired if [he] gave deposition testimony critical of how First Transit treated people with disabilities.” (Id. ¶ 18.) That same month, Sawyer appeared and testified at a deposition in Christiansen's case. (Second Snyder Decl. Ex. A at 1; Sawyer Dep. 5:8-10, 7:7-18, 10:2-5, 63:517, 79:6-11.).
Similar to Kimmons's recent bathroom-related incident on his bus Christiansen's case against First Transit concerned his chronic medical condition involving bladder incontinence and a “lack of sensation warning [him] that [he] needs to urinate,” Sawyer and Moore's handling of LIFT drivers' bathroom breaks, and First Transit's decision to terminate Christiansen after a passing motorist purportedly witnessed him standing inside his bus and urinating into a bottle. (Christiansen Decl....
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