Zei v. Md. Transit Admin.

• Decision Date: 16 August 2013
• Docket Number: No. 62,Sept. Term, 2012.,62
• Citation: 71 A.3d 1,433 Md. 254
• Parties: Anthony ZEI v. MARYLAND TRANSIT ADMINISTRATION.
• Court: Maryland Court of Appeals

433 Md. 254

71 A.3d 1

Anthony ZEI

v.MARYLAND TRANSIT ADMINISTRATION.

No. 62, Sept. Term, 2012.

Court of Appeals of Maryland.

May 20, 2013.

As Modified on Denial of Reconsideration Aug. 16, 2013.

Paul F. Evelius, (Wright, Constable & Skeen, LLP, Baltimore, MD), on brief, for Petitioner.

John B. Howard, Jr., Deputy Attorney General, (Douglas F. Gansler, Attorney General of Maryland, Jennifer L. Katz, Assistant Attorney General, and Steven M. Sullivan, Assistant Attorney General, Baltimore, MD), on brief, for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.

ADKINS, J.

In this case, we are asked to determine whether the State of Maryland complied with the Americans with Disabilities Act (“ADA”) when it adopted and applied a federally-created safety regulation governing the physical qualifications of drivers of commercial motor vehicles. Specifically, the United States Department of Transportation (“DOT”) has determined that an individual is not qualified to drive a commercial motor vehicle if that individual currently suffers from certain cardiovascular diseases. The State of Maryland followed the lead of the federal government and adopted the same standard for bus operators employed by the Maryland Transit Administration (“MTA”). We are tasked with determining whether MTA violated the ADA by firing Anthony Zei, a bus operator who failed to meet this standard.

FACTS AND PROCEDURAL HISTORY

Under the collective bargaining agreement between the MTA and Zei's labor union—the Amalgamated Transit Union, Local 1300—every bus driver must obtain a medical certification verifying that he is physically fit to operate a bus. This certification must be renewed every two years. If the Union disagrees with the findings of the medical certification, the Union may select a doctor of its choice to perform a second evaluation. If the original doctor and the Union's doctor cannot reach a consensus on the certification of the driver, then both doctors will “jointly select a third doctor to review the case” and this third doctor's “decision shall be final and binding on both parties.”

Zei began his employment as a bus driver for the MTA in 1991. By all accounts, Zei was “a very good bus driver.” On December 3, 2004, Zei underwent a “workability evaluation” performed by Dr. Hench for the purpose of obtaining his necessary medical certification to operate a bus. During the evaluation, Dr. Hench discovered that Zei had previously been diagnosed with dilated cardiomyopathy, and that Zei had “been symptomatic over the past year with shortness of breath and fatigue.” Dr. Hench reported that Zei's cardiomyopathy disqualified him from the position of bus driver “based upon the Medical Guidelines of the Federal Motor Carrier Safety Administration ... because of his increased risk of sudden death.”

In January 2005, Zei consulted his own cardiologist, Dr. Gottlieb, who had been treating him since 2003. Dr. Gottlieb instructed Zei to undergo a radiology study. Based upon the results of that study, Dr. Gottlieb concluded that Zei did not have “symptomatic heart failure” and that “Zei has medical clearance to return to work with no restrictions.”

Dr. Gottlieb and Dr. Hench could not come to an agreement, however, and the two doctors agreed to refer the case to a third doctor—Dr. Hartenbaum—whose determination would become final. Dr. Hartenbaum “determined that Zei was not qualified to drive under the ‘medical criteria’ set forth in the Cardiovascular Guidelines.” As a result, on September 1, 2005, the MTA discharged Zei from its employment.

In December 2005, Zei brought this action in the Circuit Court for Baltimore City alleging that the MTA had violated his rights under 29 U.S.C. § 504—commonly known as the Rehabilitation Act. The case went to trial, and a jury found the MTA guilty of discrimination and awarded Zei $200,000. In an unreported opinion, the Court of Special Appeals reversed, holding that Zei's failure to satisfy the federally-created qualification standard for drivers of commercial motor vehicles rendered him unqualified for the position of MTA bus driver as a matter of law.

On September 21, 2012, this Court granted a writ of certiorari, Zei v. Maryland Transit Administration, 428 Md. 543, 52 A.3d 978 (2012), to answer the following question:

Did the Court of Special Appeals err by holding that Zei's inability, because of a heart condition, to meet the DOT standards (which the MTA applies voluntarily rather than under compulsion of federal law), render him unqualified as a matter of law for an MTA bus operator position?

We shall hold that the MTA's use of the federal regulation was a properly imposed “qualification standard” under the ADA, and therefore, Zei cannot succeed on his ADA claim.¹

DISCUSSION

In 1990, Congress passed the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1) (2006). In relevant part, the Act provided that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees, ... and other terms, conditions, and privileges of employment.” Id. § 12112(a), amended by42 U.S.C. § 12112(a) (Supp. II 2008). “To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate (1) that [he] is disabled within the meaning of the ADA; (2) that [he] is qualified with or without reasonable accommodation; and (3) that [he] was discriminated against because of [his] disability.” Tate v. Farmland Indus., Inc., 268 F.3d 989, 992 (10th Cir.2001) (alterations in original) (citation and quotation marks omitted). At issue in this appeal, is the second prong—whether Zei was a qualified individual.

The ADA defined a “qualified individual” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8), amended by42 U.S.C. § 12111(8) (Supp. II 2008). To determine whether an individual is qualified for the position, the ADA allows an employer to impose “qualification standards ... that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability,” so long as the standards are “shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation....” 42 U.S.C. § 12113(a); see also Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 568, 119 S.Ct. 2162, 2170, 144 L.Ed.2d 518 (1999). Thus, if an individual fails to meet a properly imposed qualification standard, then that individual is not a “qualified individual” for purposes of the ADA and cannot maintain a discrimination claim. Tate, 268 F.3d at 993.

In this case, the MTA applied a federally-created job qualification standard contained in the Federal Motor Carrier Safety Regulations (“FMCSRs”), which set forth the physical qualifications for drivers of commercial motor vehicles. Specifically, the FMCSRs contain a regulation governing the qualification of drivers suffering from cardiovascular disease, stating: “A person is physically qualified to drive a commercial motor vehicle if that person ... [h]as no 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.” 49 C.F.R. § 391.41(b)(4); see also35 Fed.Reg. 6458, 6463 (Apr. 22, 1970) (as amended by 35 Fed.Reg. 17418, 17420 (Nov. 13, 1970)). It is this qualification standard which the MTA applied, and Zei failed to meet.

In examining whether the MTA properly applied this qualification standard, we must resolve how the federally-created qualification standard of drivers suffering from cardiovascular disease interacts with the ADA, which allows employers to use qualification standards only if they are “shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation....” 42 U.S.C. § 12113(a). This inquiry, therefore, is three-fold. First, are the requirements of 49 C.F.R. § 391.41(b)(4) “job-related” and of “business necessity?” Second, does the exemption of state governments from complying with the FMCSRs, found in 49 C.F.R. § 390.3(f)(2), but followed by the State's voluntary adoption of the same standard, change the answer to the first question? Third, could the MTA have adopted a reasonable accommodation?

FMCSRs as “Job–Related” and “Business Necessity”

Fundamentally, the parties disagree over whether the ADA's requirements of being “job-related” and of “business necessity” must be shown in an individualized assessment of Zei, or whether Zei's heart condition, per se, renders him unqualified. Central to this debate are two additional regulations: (1) 29 C.F.R. § 1630.15(e)—enacted by the Equal Employment Opportunity Commission—which provides a complete defense to an ADA claim: “It may be a defense to a charge of discrimination under [the ADA] that a challenged action is required or necessitated by another Federal law or regulation;” ² and (2) 49 C.F.R. § 390.3(f)(2)—enacted by the FederalHighway Administration (“FHA”)—which exempts state transportation agencies from complying with the FMCSRs: “the [FMCSRs] do not apply to ... Transportation performed by the Federal government, a State, or any political subdivision of a State, or an agency established under a compact between States that has been approved by the Congress of the United States.”

Zei acknowledges that, in light of the defense in 29 C.F.R. § 1630.15(e), if the FMCSRs apply to the State, then the MTA will have a full defense against any discrimination action under the ADA as a...