Case Study: Parker v. Crete Carrier Corporation
On October 12, 2016, the Eighth Circuit Court of Appeals held that Crete Carrier did not discriminate against one of its truck drivers by requiring the truck driver to undergo a sleep apnea test. In Parker v. Crete Carrier Corp., No. 16-1371, 2016 U.S. App. LEXIS 18374 (8th Cir. Oct. 12, 2016), Crete Carrier ordered its driver, Robert Parker, to undergo an examination because his BMI was over 35, consistent with company practice of requiring any truck driver with a BMI of 35 or greater to undergo medical examinations to assess whether they had obstructive sleep apnea. After Parker refused to undergo the sleep study, Crete Carrier refused to provide Parker any further work. Parker filed suit alleging that Crete Carrier violated the Americans with Disabilities Act. Parker argued that requiring the sleep study discriminated against him on the basis of perceived disability. Crete Carrier was granted summary judgment in the District Court, and the Eighth Circuit affirmed.
On February 2, 2012, the Medical Review Board (MRB) and Motor Carrier Safety Advisory Committee (MCSAC) recommended that truck drivers with BMIs over 35 receive only conditional DOT certification and undergo an additional examination for obstructive sleep apnea. In 2016, the recommendations changed. MRB recommended sleep studies for drivers who either (1) have BMIs of 40 or above, or (2) have BMIs of 33 or above plus additional risk factors. It was also recognized that in-lab sleep studies were the preferred method of diagnosing obstructive sleep apnea.
Crete Carrier's program was essentially based upon the recommendations of the MRB and MCSAC. The program required its truck drivers at risk for obstructive sleep apnea to undergo in-lab sleep study examinations. If the driver was found to have obstructive sleep apnea, the driver was placed on a treatment regimen. Given Parker's recent DOT physical reflected that his BMI was over 35, Crete Carrier requested that he undergo an in-lab sleep study, which he refused. Parker obtained a report from a Physician Assistant not in any way affiliated with Crete Carrier stating, "I do not feel it is medically necessary for [Parker] to have a sleep study.” This letter formed the basis for Parker refusing to undergo the in-lab sleep examination. During discovery, Crete Carrier produced the report of Dr. Richard Schwab, a sleep apnea expert. Plaintiff moved in limine to bar the testimony under Daubert. Dr. Schwab's report noted that Parker had four risk factors for obstructive sleep apnea, including hypertension, snoring, obesity and polycythemia. He concluded that Parker likely had obstructive sleep apnea. The District Court did not rely upon this portion of Dr. Schwab's report in entering summary judgment in favor of Crete Carrier. Instead, it relied upon Dr. Schwab's report in assessing the danger posed by drivers with obstructive sleep apnea, the usefulness of obesity and specific BMIs in screening drivers for sleep studies, the validity of sleep studies for diagnosing obstructive sleep apnea and the availability of treatment for obstructive sleep apnea. The Eighth Circuit concluded that the District Court did not abuse its discretion in relying upon the report of Dr. Schwab. Just because others might disagree with Dr. Schwab's opinions did not warrant the opinions being inadmissible. The Eighth Circuit found that Dr. Schwab had specialized knowledge in the field of obesity and obstructive sleep apnea, created and reviewed significant peer-reviewed scientific literature, had extensive training and read over 700 sleep studies annually.
After addressing the admissibility of Dr. Schwab’s report, the Eighth Circuit analyzed the discrimination claim. Under the ADA, employers cannot require a medical examination unless it is shown that the medical examination is job-related and consistent with business necessity. 42 U.S.C. Section 12112(d)(4)(A). Parker argued that Crete Carrier failed to consider his individual characteristics before requiring him to undergo a sleep study. The Eighth Circuit found that Section 12112(d)(4)(A) of the ADA does not require employers to consider each employee’s unique characteristics before requiring a medical exam. Instead, the ADA permits employers to require a class of employees to get medical exams. If the employer requires a class of employees to submit to a medical exam, the employer satisfies its burden of establishing business necessity by showing that the employer has a reasonable basis for concluding that the class poses a genuine safety risk and the exam requirement allows the employer to decrease that risk effectively. In essence, all that is required is that the employer defines the class of employees reasonably. Here, Crete Carrier established that obstructive sleep apnea, if left untreated, impaired driving skills and increased the risk of motor vehicle accidents by 1.2 to 4.9 fold. Crete Carrier noted that the sleep study was the only way to confirm or rule out a diagnosis of obstructive sleep apnea and the in-lab sleep study is the gold standard for diagnosing obstructive sleep apnea. Crete Carrier further noted that obesity was the primary anatomic risk factor for obstructive sleep apnea. A BMI of approximately 33 is the optimal cut off to identify subjects likely to have obstructive sleep apnea. Screening reflects that approximately 77 percent of people with a BMI above 33 have obstructive sleep apnea. Parker offered no facts contrary to any of the information relied upon by Crete Carrier in establishing its policy.
Although Crete Carrier identified the class to undergo sleep studies, Parker argued that Crete Carrier still violated ADA by including him in the class. Parker argued that he had no documented sleep issues at work, he received a DOT certification, he was awarded five years of accident free driving and named a top trainer in 2012 and, lastly, his personal medical provider did not feel a sleep study was medically necessary. Accordingly, Parker argued that the above factors removed him from the class Crete Carrier required to undergo a sleep study. The Eighth Circuit found that the characteristics relied upon by Parker did not undermine Crete Carrier's reasonable basis for concluding that Parker posed a genuine safety risk. None of the characteristics Parker relied upon established that he did not suffer from sleep apnea. The Eighth Circuit found that Crete Carrier met its burden of defining the employees reasonably and including Parker in the class.
Lastly, Parker argued that Crete Carrier discriminated against him given they regarded him as having a disability. The Eighth Circuit noted that Parker had to establish that (1) Crete Carrier regarded him as having a disability, (2) Parker had the qualifications to perform the essential functions of his position with or without reasonable accommodation and (3) Crete Carrier took adverse action due to his perceived disability. If Parker was successful in meeting these three requirements, Crete Carrier then had the burden to offer a legitimate, nondiscriminatory reason for the adverse action. Assuming Parker did meet the requirements, the Eighth Circuit found that Crete met its burden of a legitimate nondiscriminatory reason for having him undergo the in-lab sleep study. The Eighth Circuit specifically found that the undisputed evidence revealed that Crete Carrier suspended Parker for refusing to submit to a lawful medical examination, which did not violate the ADA.
In Parker, the American Trucking Association filed an Amicus Brief on behalf of Crete Carrier. The decision is a significant victory for the trucking industry. Parker makes it clear that motor carriers can effectively carry out a sleep apnea program which is consistent with the recommendations of the Medical Review Board and Motor Carrier Safety Advisory Committee. Although the opinion certainly reduces the possibility of a discrimination claim from a driver who is required to undergo an in-lab sleep study, plaintiffs' lawyers may attempt to argue in litigation that the absence of such a program, which would have enabled the motor carrier to properly identify those drivers with obstructive sleep apnea, was a negligent act which played a significant role in causing a particular accident. As a practical matter, however, the decision should have little practical effect upon litigation. The Parker decision serves to reinforce the ability of motor carriers to implement their sleep apnea programs without fear of discrimination lawsuits.