State Dept. of Public Safety v. Sexton

• Decision Date: 12 June 1998
• Parties: STATE DEPARTMENT OF PUBLIC SAFETY v. John SEXTON. John Sexton v. State Department of Public Safety, et al.
• Court: Alabama Court of Civil Appeals

748 So.2d 200

STATE DEPARTMENT OF PUBLIC SAFETY v. John SEXTON.

John Sexton v. State Department of Public Safety, et al.

2960242.

Court of Civil Appeals of Alabama.

June 12, 1998.

William G. McKnight, Montgomery; and Jack M. Curtis, Department of Public Safety, for appellant/cross appellee State Department of Public Safety.

C. Michael Quinn, Deborah A. Mattison, and Jon C. Goldfarb of Gordon, Silberman, Wiggins & Childs, Birmingham, for appellee/cross appellant John Sexton.

On Application for Rehearing

CRAWLEY, Judge.

The opinion of March 20, 1998, is withdrawn and the following opinion is substituted therefor.

The State Department of Public Safety ("DPS") appeals from a judgment entered on a $50,000 jury verdict for John Sexton in an action alleging that DPS discriminated against him in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., by determining that he was medically unqualified for a commercial driver's license ("CDL").

DPS also appeals from a judgment of the circuit court, sitting without a jury, on Sexton's administrative appeal from the suspension of his CDL; the circuit court overturned the decision of DPS and held that Sexton was medically qualified for the license. Sexton cross appeals, contending that the trial court erred by entering a summary judgment on his claim, brought pursuant to 42 U.S.C. § 1983, that DPS denied him due process of law in the course of suspending his license.

For the reasons discussed below, we reverse the judgment entered on the jury verdict and remand with instructions for the trial court to enter for DPS a judgment notwithstanding the verdict on the ADA claim. We affirm the judgment on the administrative appeal, and we affirm in part and reverse in part the summary judgment that is the subject of the cross appeal.

Sexton was employed by Poole Truck Lines, Inc., of Evergreen, Alabama. He held a CDL and drove an 18-wheel truck cross-country. On May 21, 1992, he was on his way home after driving 12 to 14 hours straight, when he felt faint, "like someone turning the lights down." He pulled off on the side of the road until the feeling subsided and then he continued home.

A few days later, Sexton consulted a doctor, who took chest X-rays and made an electroencephalogram (EEG); the doctor found no abnormalities and authorized Sexton to return to work. A month later, Sexton had chest pains and, in September 1992, he was referred to a neurologist, Dr. Larry Epperson. Dr. Epperson took a medical history from Sexton, in which he recorded that Sexton had had "five to six episodes of near syncope followed by severe headaches."¹

Dr. Epperson performed several tests on Sexton, including an EEG and an MRI brain scan. Sexton's test results were normal, with no indication of epilepsy. However, in order to determine whether Sexton had had a seizure, Dr. Epperson prescribed a three-month therapeutic trial of Tegretol, an anti-convulsant medication. Sexton could not drive while he was on the medication, so he took a three-month leave of absence from Poole Truck Lines. During his leave of absence, Sexton submitted a claim for short-term disability benefits through his employer's insurance program. The application form for the benefits, which Sexton said his wife had filled out, stated that the nature of Sexton's illness was "seizures." Mrs. Sexton testified that she wrote "seizures" in the space marked "nature of illness" because that is the condition for which the doctor was checking her husband. In the section to be completed by the attending physician, Sexton's diagnosis was identified as "syncope, seizures." Dr. Epperson testified that his office manager filled out that section of the application form. The form was signed by Sexton and by Dr. Epperson.

At the end of the therapeutic trial of Tegretol, Dr. Epperson changed Sexton's medication to Dilantin and extended the three-month period for another three months. Sexton continued the anti-convulsant medication until March 1993. At the end of Sexton's first course of medication in December 1992, Poole Truck Lines informed him that, upon review of his medical records, it had determined that he was medically disqualified for employment "in accordance with paragraph 391.41, subpart [b], section 8." That reference is to 49 C.F.R. § 391.41(b)(8), which provides:

"(b) A person is physically qualified to drive a commercial motor vehicle if that person—

". . . .

"(8) Has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a commercial motor vehicle."

When Sexton received the disqualification notice from Poole, he contacted Dr. Epperson and asked if the physician could help him keep his job. Dr. Epperson agreed to send Poole a letter explaining Sexton's medical condition. On January 5, 1993, Dr. Epperson wrote:

"I am writing in reference to MR. JOHN SEXTON, a forty-seven year old white male who has had five to six episodes of near syncope followed by severe headaches. On several occasions, he had jerking clonic activity of his left arm. He complains of intermittent weakness of the upper extremities for 10-30 minutes and then this resolves. He has had a thorough work up with electroencephalogram, CAT scan and cardiac catheterization, etc. MRI of the brain was negative. Electroencephalogram was also normal. He was given Tegretol on 9/9/92 for a therapeutic trial. He was very drowsy from taking Tegretol. This was slowly discontinued after Dilantin was added. He has been on Dilantin for some time and has had no further near syncope episodes. He is being treated for a presumed partial seizure disorder. Electroencephalograms have been normal and therefore this is a presumptive diagnosis."

When Sexton saw that Dr. Epperson had informed his employer that he had had "five to six syncopal episodes," he contacted Dr. Epperson, told the doctor that he thought that account was inaccurate and explained that he had had only one spell during which he felt faint. He asked Dr. Epperson to write Poole another letter explaining that his office notes were incorrect, that Sexton had had only one syncopal episode (not five or six), and that he had never had a seizure. On January 7, 1993, Dr. Epperson wrote to Poole again, stating that Sexton had had only one "episode of near syncope," that "no blatant obvious seizure has occurred by history," that all of Sexton's tests were negative, and that he had placed Sexton on a therapeutic trial of anti-convulsant medication to test for a possible seizure disorder.

Nevertheless, Poole did not rehire Sexton. In April 1993, Sexton sued Poole in a federal district court, alleging that Poole had violated the ADA by terminating his employment.²

In May 1993, DPS notified Sexton to come for an interview with Sgt. Curtis Luther, a DPS hearing officer, as part of an investigation into the status of his CDL. Sexton met with Sgt. Luther and described what had happened on the night of May 21, 1992, when he felt faint and had to stop his truck. He explained that he had sought medical attention, that he had been tested for seizures, and that he had been placed on a trial course of anti-convulsant medication. He provided Luther with a copy of the explanatory letters that Dr. Epperson had sent to Poole Truck Lines, and he brought another letter from Dr. Epperson, dated March 15, 1993, containing the following conclusions:

"MR. SEXTON had a syncopal episode and has had normal work up and no objective etiology to this.... He had no further syncopal episodes.... He will be released to work with no limitations or restrictions. In my opinion, he does not have a seizure disorder and should not be penalized for being placed on a trial of anti-convulsant medications."

At the conclusion of his investigation, Sgt. Luther recommended that Sexton's CDL not be suspended. DPS referred Sexton's case to its medical advisory board, see § 32-6-40 et seq., Ala.Code 1975, and in July 1993, all four doctors on the board unanimously agreed that Sexton should be allowed to keep his CDL. In July 1993, DPS informed Sexton that his CDL had been approved and that his next medical report would be due in a year.

Sexton did not hear from DPS again until November 1993, when he received notification by mail that his CDL had been disqualified and that he could request a hearing. Sexton requested a hearing and, in December 1993, he and his lawyer met with Sgt. Luther. Sexton was allowed to state his position and to fill out a statement. He also provided Sgt. Luther with all the medical information he had, including a letter from Dr. Caudill Miller, Dr. Epperson's partner, whom he had consulted for a second opinion in May 1993. Dr. Miller concurred with Dr. Epperson's diagnosis and added the following comments:

"Mr. Sexton is having trouble keeping his driver's license. The highway patrol regulation of the State of Alabama states that you cannot drive a car for one year after having a seizure, but he has not had a seizure. He has actually not even had a true episode of syncope. There are no neurological restrictions at this time to his driving. It appears that his near syncope was secondary to [low blood pressure] of unknown etiology and I am not restricting his driving at this time. Neurologically, his examination is normal. He seems to be a very reasonable person and I believe his story, but I did question him as to why the [medical] history differed from Dr. Epperson's history."

During the interview with Sgt. Luther, Sexton asked to see the information upon which DPS was relying to disqualify his license. Luther stated that he could not give Sexton that information. Sexton's CDL was officially suspended in December 1993.

Between July 1993, when DPS approved Sexton's license, and December 1993, when it finally suspended the license, DPS received additional information that it considered in...