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Hensley v. United Parcel Service, Inc.

United States District Court, W.D. North Carolina, Asheville Division

March 7, 2014




THIS MATTER is before the Court on the Defendant's Motion for Summary Judgment. [Doc. 12]. For the reasons stated herein, the Court will stay this matter pending the resolution of Plaintiff's underlying administrative appeal.


In September, 2007, Plaintiff Michael D. Hensley ("Hensley") became a full-time package delivery driver for Defendant United Parcel Service, Inc., ("UPS"). [Doc. 13-1 at 8 (26)]. UPS requires all of its package delivery drivers to obtain a Federal Motor Carrier Safety Regulation Medical Examiner's Certificate (commonly known as a "DOT card"), before operating its vehicles. Until 2012, Hensley had passed his prior medical exams in order to obtain his DOT cards.

In June of 2012, Hensley discussed with his family doctor "having problems being sleepy." [Doc. 13-1 at 13 (48)]. On June 13, 2012, Hensley was seen by his family doctor who referred him to a local sleep study clinic. [Id. at 15 (55)]. On this same date, June 13, 2012, Hensley went to the local UPS-required medical clinic, Sisters of Mercy Urgent Care center, and obtained his DOT card from a physician there, Dr. Gilpin. [Doc. 15-17 at 1 to 7]. Dr. Gilpin qualified Hensley for an unrestricted two-year DOT card. [Id. at 7].

Between June 13, 2012, and July 31, 2012, Hensley visited the sleep study clinic for a Polysomnogram evaluation and a Multiple Sleep Latency Test. [Doc. 13-1 at 17 (65); (68)]. On July 31, 2012, Hensley was informed by Dr. Buechler, the sleep study clinic director, that he was diagnosed with narcolepsy with cataplexy. [Id. at 19 (71)]. Hensley was put on a regimen of prescription medications to prevent excessive daytime somnolence. [Id. at 22 (85)]. Hensley informed UPS of his diagnosis.

On August 1, 2012, Hensley, accompanied by a UPS health and safety supervisor, drove to the Sisters of Mercy clinic so that Hensley could be examined again. [Id. at 23 (87)]. Hensley provided his narcolepsy information to the receptionist and, after about 30-45 minutes, a nurse called Hensley's name. Hensley spoke to the nurse who provided him with a new DOT card signed by a different doctor, Dr. Somani. [Doc. 15-18]. Dr. Somani had contacted Dr. Buechler at the sleep study clinic about Hensley's narcolepsy diagnosis. Dr. Buechler responded, in part, by providing Dr. Somani a letter dated August 1, 2012 [Doc. 15-1 at 1-2], explaining Hensley had no job restrictions. [Doc. 13-1 at 24 (92)]. Without physically examining Hensley, Dr. Somani reissued him a DOT card but reduced Dr. Gilpin's two-year validation to one year. [Doc. 15-18].

Following his visit to Sisters of Mercy on August 1, 2012, Hensley returned to work with his reissued DOT card and presented it to the manager of the Asheville UPS Center. [Doc. 13-1 at 24 (93)]. The manager told Hensley he would not be permitted to drive until he could "figure everything out." [Doc. 13-1 at 25 (94)]. On August 28, 2012, after Hensley had finished his early morning shift as a presorter (a non-driving assignment at UPS), the manager approached him and gave him a "sticky" note that instructed him to return to Sisters of Mercy for another DOT exam. This exam was scheduled by UPS for Hensley. Hensley was directed to appear at the Sisters of Mercy clinic at 11:00 a.m. that same day (August 28, 2012) specifically to see a third doctor named Dr. Lawson. Hensley appeared at the clinic as instructed and surreptitiously recorded the verbal discussions that occurred during his examination performed by Dr. Lawson. [Doc. 13-1 at 29 (111)]. Dr. Lawson refused to issue Hensley a DOT card instead writing on Hensley's DOT card application that he did not meet standards "due to diagnosis of narcolepsy." [Doc. 13-1 at 65].

On October 3, 2012, Hensley returned to his family doctor who examined Hensley and who found him eligible to receive a DOT card. [Doc. 13-1 at 70 to 78]. On October 7, 2012, Hensley returned to the sleep study clinic for a Maintenance and Wakefulness Test ("MWT"). Sleep study clinic director Dr. Buechler "determined [Hensley] had a normal MWT and he was easily able to maintain wakefulness without any signs of narcolepsy. His sleepiness is well treated to the point of not being visible on this test." [Doc. 15-4]. Hensley returned to Sisters of Mercy on October 29, 2012, for a re-evaluation. He was again examined by Dr. Lawson who again denied him a DOT card. [Doc. 13-1 at 79 to 85]. At no time did Dr. Lawson contact Dr. Buechler.

Hensley, acting pro se, contacted the EEOC. On October 24, 2012, Hensley completed and submitted an "Equal Employment Opportunity Commission Intake Questionnaire." [Doc. 15-12 at 19 to 24]. At some point after October 24, 2012, Hensley was contacted by an investigator employed by the EEOC. [Doc. 15-12 at 2]. Hensley and the EEOC investigator discussed in detail the events surrounding his denial of a DOT card by Dr. Lawson and what he believed to be UPS's dishonesty and discrimination against him. [Id.]. On December 5, 2012, the EEOC mailed to Hensley a "Dismissal and Notice of Rights" letter. [Doc. 15-12 at 17 to 18]. This letter informed Hensley that his EEOC charge was dismissed and that he had 90 days from his receipt of such letter to file a lawsuit in state or federal court based on his discrimination charge. [Id.].

Hensley filed suit in North Carolina state court on March 6, 2013, alleging two claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., as amended by the ADA Amendments Act of 2008, Pub.L.No. 110-325, 122 Stat. 3553 (Sept. 25, 2008) (herein the "ADA"). [Doc. 1-2]. As to Hensley's Complaint, he asserts first that he was a "qualified individual" within the meaning of the ADA and he was "regarded as" a person with a disability by UPS who discriminated against him on the basis of this perceived disability. [Doc. 1-2 at ¶¶ 27 to 31]. Hensley acknowledges in his Complaint:

5. Plaintiff is aware of the provisions of 49 C.F.R. § 391.47 entitled, "Resolution of conflicts of medical examinations, " and is attempting to utilize these administrative procedures; however, due to the 90 day limitation in the United States Equal Employment Opportunity Commission's Notice of Suit Rights, plaintiff is required to file this action prior to the exhaustion of those administrative procedures.

[Id. at 4, ¶5].

Second, Hensley alleges in the alternative that he was a person with a disability who UPS did not reasonably accommodate. [Doc. 1-2 at ¶¶ 32 to 34]. Following the discovery period, the parties voluntarily dismissed Hensley's "disabled" alternative claim by stipulation and Hensley is proceeding solely on his "regarded as" claim. [Doc. 11]. UPS removed Hensley's action to this Court and filed its Answer April 17, 2013. [Doc. 3]. On December 16, 2013, UPS filed its Motion for Summary Judgment [Doc.12], and accompanying Memorandum of Law. [Doc. 12-1]. On January 9, ...

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