R. ALLAN EDGAR, Chief United States District Judge
I. Introduction
Plaintiff filed his "original" complaint on September 20, 2002 [Court File No. 1]. He brought this action against Yellow Transportation, Inc. ("YTI"), formerly known as Yellow Freight Systems, Inc. and Teamsters Local Union 515 ("Union") asserting causes of action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-34; the Older Workers Benefit Protection Act ("OWBPA"), 29 U.S.C. § 623(f); the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213; Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e et seq; and causes of action under Tennessee labor law and Tennessee contracts law. On October 30, 2002, defendant YTI filed a motion to dismiss in part [Court File No. 12] seeking dismissal of plaintiff's claims of race discrimination under Title VII. That same day, October 30, 2002, defendant Union filed a motion to dismiss the plaintiff's claims against it [Court File No. 15].
Defendant YTI filed its answer to the plaintiff's complaint on November 12, 2002 [Court File No. 18]. On November 13, 2002, the Clerk of Court received a proposed "Amended Complaint" from plaintiff. Because the defendant had previously filed its responses to the plaintiff's "original" complaint, the plaintiff's proposed "Amended Complaint" was treated as a motion for leave to amend the complaint under FED. R. CIV. P. 15(a) and the matter was referred to a United States Magistrate Judge. On January 10, 2003, the Magistrate Judge issued a Report and Recommendation which recommended the plaintiff's motion for leave to amend the complaint be granted in part and denied in part [Court File No. 27]. Thereafter, plaintiff filed a motion for partial summary judgment [Court File No. 30]. Subsequently, on January 30, 2003, no objections having been filed, the Court adopted the Magistrate Judge's recommendation and the plaintiff's motion for leave to amend the complaint was denied in part and granted in part [Court File No. 39]. Finally, on February 12, 2003, the Court, upon the consent of the parties, granted the Union's motion to dismiss [Court File No. 34]. Currently pending before the Court are (1) defendant YTI's motion to dismiss [Court File No. 12]; and (2) plaintiff's motion for partial summary judgment [Court File No. 30]. These motions are now ripe for review.
II. Background
Plaintiff James Betton alleges he was an employee of YTI at its Calhoun, Georgia facility. [Court File No. 1]. YTI laid off Plaintiff in April 2001, and closed the Calhoun facility in July 2001 [Court File No. 1].
Plaintiff alleges that after closing the Calhoun facility, YTI, transferred the other twelve employees from the Calhoun facility to its Chattanooga, Tennessee facility, but that it did not transfer him. Plaintiff further alleges that he had more seniority than two of the other transferred employees. Plaintiff alleges that YTI refused to "rehire" him. Finally, Plaintiff claims that YTI required him to undergo a physical examination as a "precondition" to rehiring him and, based upon the results of such examination, refused to "rehire" him based upon his disabling condition; namely, insulin dependent diabetes.
III. Defendant YTI's Motion to Dismiss In Part [Court File No. 12]
Defendant YTI moves pursuant to FED. R. CIV. P. 12(b)(6) for dismissal of Plaintiff's claims of race discrimination against defendant under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendant YTI seeks dismissal of plaintiff's Title VII claims of race discrimination on the ground that plaintiff failed to file a timely charge of race discrimination with the Equal Employment Opportunity Commission ("EEOC") as required by 42 U.S.C. § 2000e-5(e).
On or About April 4, 2002, plaintiff filed a Charge of Discrimination with the EEOC against defendant YTI. [Court File No. 1]. Plaintiff's charge with the EEOC states in pertinent part:
I believe I have been discriminated against because of my age (64), in violation of the Age Discrimination In Employment Act and my disability, in violation of the Americans With Disability Act.
Id. However, the plaintiff's Charge of Discrimination does not allege that he was discriminated against because of his race.
42 U.S.C. § 2000-e5(e)(1) "requires that a Title VII plaintiff file a charge with the Equal Employment Opportunity Commission (EEOC) either 180 or 300 days "after the alleged unlawful employment practice occurred." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2068 (2002) (quoting 42 U.S.C. § 2000e-5(e)(1)). More specifically, under 42 U.S.C. § 2000e-5(e)(1):
An individual must file a charge within the statutory time period and serve notice upon the person against whom the charge is made. In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice; in all other States, the charge must be filed within 180 days. A claim is time barred if it is not filed within these time limits.
Id. at 2070.
Plaintiff has not filed complaint with the EEOC alleging race discrimination. Moreover, plaintiff has conceded as much. On November 13, 2002, the Clerk of Court received a proposed "Amended Complaint" from plaintiff. However, prior to the filing of plaintiff's proposed Amended Complaint, YTI filed its answer to plaintiff's original complaint and YTI had also already filed the instant motion for partial dismissal. Because YTI had already filed an answer when plaintiff's proposed "Amended Complaint" was received, the "Amended Complaint" was treated as a motion to amend the complaint. Subsequently, a hearing on plaintiff's motion to amend his complaint was held before United States Magistrate Judge William B. Mitchell Carter on December 6, 2002. On January 10, 2003, the Magistrate Judge issued a Report and Recommendation on plaintiff's motion to amend [Court File No. 27]. The Report and Recommendation stated in pertinent part that "[d]efendants have no objection to plaintiff's desire to amend his complaint to drop the Title VII race discrimination charge alleged in the original complaint," and, therefore, it was recommended that this part of plaintiff's motion to amend his complaint be granted [Court File No. 27, pp. 6-7].
Because the proposed "Amended Complaint" received by the Clerk of Court on November 13, 2002, was treated as a motion to amend the complaint, the proposed "Amended Complaint" tendered by plaintiff was never entered onto the docket of this case. However, the proposed "Amended Complaint" has been placed on the left side of the court file in this case.
Thereafter, in an order issued on January 30, 2003, the Magistrate Judge's Recommendation was accepted [Court File No. 33]. Specifically, the January 30, 2003 order provided that plaintiff's "complaint shall be amended to remove the Title VII claim." Id.
As the Court's January 30, 2003 order effectively renders YTI's motion to dismiss in part [Court File No. 13] moot, the motion of defendant YTI to dismiss in part [Court File No. 13] will be STRICKEN as having been rendered MOOT.
IV. Plaintiff's Motion for Partial Summary Judgment [Court File No. 30]
On January 27, 2003, plaintiff filed a motion for partial summary judgment [Court File No. 30]. In his motion, plaintiff seeks a grant of summary judgment on his claims under the ADA and his state law claims for the tort of fraud.
YTI opposes plaintiff's motion for summary judgment. YTI contends that plaintiff has failed to establish that he has a disability within the meaning of the ADA [Court File No. 35, pp. 4-7]; that YTI did not violate the ADA by requiring plaintiff to undergo a medical examination in July 2001 [Court File No. 35, pp. 7-8]; and that plaintiff's fraud claim is not properly before this court, but even assuming arguendo it were before the court, plaintiff's fraud claim is preempted by § 301 of the Labor Management Relations Act ("LMRA")[Court File No. 35, pp. 9-10].
A. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
V. Plaintiff's ADA claim
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individuals in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). In order to prevail on his ADA claims, Plaintiff Betton must show: (1) he has a disability; (2) he was qualified for the job; and (3) and either he was denied a reasonable accommodation for his disability or was subject to an adverse employment decision that was made solely as a result of his disability. Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir. 1996).
Thus, the first issue the Court must consider is whether a genuine issue of material fact exists with regard to whether plaintiff was disabled within the meaning of the ADA. The ADA defines a disability as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment."
42 U.S.C. § 12102(2).
"Major life activities" include "functions such as caring for oneself, performing manual tasks, walking, seeking, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i). Further, "substantially limits" means an inability to perform, or a severe restriction on the ability to perform as compared to the average person in the general population. 29 C.F. R. § 1630.2(j)(1).
Plaintiff has alleged that he suffers from diabetes [Court File No. 1, p. 5, ¶ 26]. He also alleged that he takes insulin for his diabetes [Court File No. 1, p. 6, ¶ 28]. Further, in his motion for partial summary judgment, plaintiff has set forth the following facts:
On or about January 1999, plaintiff was subjected to a random drug test, as ordered by Yellow.
Said test uncovered a diabetic condition, for which plaintiff began taking insulin thereafter.
Plaintiff temporarily continued to do local driving, while taking relevant drugs and remaining under medical supervision pursuant to
49 C.F.R. § 391.43.
By the time plaintiff was medically unqualified to drive due to insulin treatments, he was accommodated as a dockworker at the Calhoun, facility.
[Court File No. 28, p. 2 (internal citations omitted)].
Attached as Exhibit 2, to YTI's response to plaintiff's motion for summary judgment is a "Medical Examination Report" dated July 16, 2001. On the health history section of the Report, which was completed by plaintiff, plaintiff indicated that he had diabetes and he specifically noted:
"1-injection daily — level controlled with injections." [Court File No. 35, Exh. 2, p. 1]. The medical examiner then noted that a urine specimen taken from plaintiff was negative for sugar, Id. at 2, but that plaintiff did not meet the standard under
49 C.F.R. § 391.41 for driving a commercial vehicle due to his daily insulin use. Id. at 3.
In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Court stated that under the ADA:
A "disability" exists only where an impairment "substantially limits" a major life activity, not where it "might," "could," or "would" be substantially limiting if mitigating measures were not taken. A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently "substantially limits" a major life activity. To be sure, a person whose physical or mental impairment is corrected by mitigating measures, still has an impairment, but if the impairment is corrected it does not "substantially limi[t]" a major life activity.
Id. at 482-83. Thus, the Court directed that an individualized inquiry must be made as to whether as person is disabled under the ADA. Id. It stated the:
use of a corrective device does not, by itself, relieve one's disability. Rather, one has a disability under subsection (A) if, notwithstanding the use of a corrective device, that individual is substantially limited in a major life activity . . . The same may be true of individuals who take medicine to lessen the symptoms of an impairment so that they can function but nevertheless remain substantially limited . . . The use or nonuse of a corrective device [or medication] does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting.
Id. at 488.
Based upon the present state of the evidence presented to this court, plaintiff has failed to show that his diabetes in its corrected state substantially limits any of his major life activities. Rather, the limited evidence currently before the court shows that plaintiff's diabetes is controlled by his insulin.
Plaintiff, however, is the only party who has sought a summary judgment on this issue. Defendant YTI has not sought a summary judgment on the ground that there was no genuine issue of material fact regarding whether plaintiff was disabled under the ADA.
Accordingly, this aspect of plaintiff's motion for summary judgment will be DENIED.
VI. The July 16, 2001 Medical Examination
Plaintiff argues that the July 16, 2001 medical examination, which was done at the behest of defendant YTI, was a per se violation of the ADA, because YTI required the physical as a precondition for his rehiring/transfer to YTI's Chattanooga, Tennessee facility. [Court File No. 30, pp. 4-5]. YTI responds that plaintiff was not qualified for the position of a "regular dockworker" at YTI's Chattanooga facility and that it had grounds for the July 16, 2001 examination, namely, YTI hired only regular dockworkers with a valid commercial drivers licence ("CDL") at its Chattanooga facility; and, due to his insulin dependent diabetes, plaintiff could not obtain a CDL pursuant to the Department of Transportation ("DOT") Federal Motor Carrier Safety Regulations at 49 C.F.R. § 391.41(b)(3). [Court File No. 35, pp. 5-6].
The ADA, 42 U.S.C. § 12112(d)(4)(A) provides:
I. Prohibited Examination and Inquiries
A covered entity shall not require a medical examination and shall not make medical inquiries of an employee as to whether such an employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
As is noted above, YTI argues that its request for a medical examination and plaintiff's subsequent examination on July 16, 2001 were not prohibited inquiries and/or examinations under 42 U.S.C. § 12112(d)(4)(A) because the examination was job-related in that it was requested and performed for the purpose of determining whether or not plaintiff could satisfy the DOT Federal Motor Carrier Safety Regulations at 49 C.F.R. § 391.41(b)(3) for a CDL.
49 C.F.R. § 391.41 states in relevant part:
§ 391.41 Physical qualifications for drivers.
(a) A person shall not drive a commercial motor vehicle unless he/she is physically qualified to do so and, except as provided in § 391.67, has on his/her person the original, or a photographic copy, of a medical examiner's certificate that he/she is physically qualified to drive a commercial motor vehicle.
(b) A person is physically qualified to drive a commercial motor vehicle if that person —
. . .
(3) Has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control:
49 C.F.R. § 391.41 (West 2003). Moreover,
49 U.S.C. § 391.11(a) states in pertinent part that "a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle."
9 C.F.R. § 391.11 (West 2003). However, as was noted by the court in E.E.O.C. v. Murray, Inc.,
175 F. Supp.2d 1053 (M.D.Tenn. 2001), the regulation at
49 C.F.R. § 391.41 does
"not prohibit insulin-dependent diabetics from operating non-commercial motor vehicles like forklifts. Under the DOT regulations, a person cannot be physically qualified to drive a commercial motor vehicle if he or she has an "established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control."
49 C.F.R. § 391.41(b)(3) (2000). A commercial motor vehicle is defined, in relevant part, as "any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle — (1) Has a gross vehicle weight rating . . . of 4,536kg kilograms (10,001 pounds) or more . . .
49 C.F.R. § 390.5 (2000).
Murray, Inc., 175 F. Supp.2d at 1064 (quoting 49 C.F.R. § 391.41(b)(3) (2000) 49 C.F.R. § 390.5 (2000)) (emphasis in original).
Under the ADA, "an employer can apply `qualification standards' that deny a job to an individual with a disability as long as those standards are `job related and consistent with business necessity.'" Bay v. Cassens Transport Co., 212 F.3d 969, 974 (7th Cir. 2000) (quoting 42 U.S.C. § 12113(a); 29 C.F.R. § 1630.15(b)(1));. Further, an employer may have a defense to a charge of discrimination if an action is "required or necessitated by another Federal law or regulation." Bay, 212 F.2d at 974 (quoting 29 C.F.R. § 1630.15(e)); Thoms, 31 F. Supp.2d at 1124 (E.D.Wis. 1998). Lastly, 42 U.S.C. § 12112(d)(4)(A) provides an employer can only require a medical examination where it "is shown to be job-related and consistent with business necessity" and pursuant to 42 U.S.C. § 12112(d)(4)(B) the employer "may make inquiries in the ability of an employee to perform job-related functions." 42 U.S.C.A. § 12112(d)(4)(A) (B) (West 1995).
The inquiry into the issue of what is an essential function or duty of a particular job begins with 42 U.S.C. § 12111 which defines a "qualified individual with a disability" 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. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.
42 U.S.C.A. § 12111(8) (West 1995) (emphasis added). Under the regulations, the "`[e]ssential functions' are the fundamental job duties of the employment position; the term does not include marginal functions." Thoms, 31 F. Supp.2d at 1125 (quoting 29 C.F. R. at § 1630.2(n)). "A job function is considered essential when `the reason the position exists is to perform that function.'" Id. at 1126 (quoting
29 C.F.R. § 1630.2(n)(2)(i)). Among the evidence which will be considered in determining whether a particular function is essential are: "the employer's judgment on the matter and written job descriptions, . . . the amount of time spent on the job performing the function, the consequences of not requiring the person to perform the function, the terms of a collective bargaining agreement, and the work experience of others on the job." Id. (quoting
42 U.S.C. § 12111(8) and
29 C.F.R. § 1630.2(n)(3)).
Thus, the question in this matter becomes whether the requirement that an employee possesses a CDL is an essential function of the job plaintiff sought at YTI's Chattanooga facility. Attached to YTI's response to plaintiff's motion for partial summary judgment is the January 10, 2004 affidavit of Terry Cobb [Court File No. 37, exhibit 2]. Mr Cobb stated that he had been employed as the Terminal Manager of the Chattanooga, Tennessee terminal of YTI for nearly 20 years. Id., ¶¶ 2 and 3. He further stated that during his tenure as Terminal Manager of YTI's Chattanooga facility, a regular dockworker who was not driver qualified was never employed at the facility; and, that at YTI's Chattanooga facility, "regular dockworkers are required to do city driving (pick up and delivery of freight) and operate other motorized equipment such as forklifts and hostling tractors (used to move trailers around the terminal yard)." Id., ¶¶ 4 and 5. Mr. Cobb further stated in his affidavit that if an individual were not able to obtain a CDL he or she was not qualified for a regular dockworker position at YTI's Chattanooga facility as all regular dockworkers at the Chattanooga terminal of YTI were required to perform the "essential job duties of dockworker, city driver and hostler." Id., at ¶¶ 6 and 8.
Finally, Mr. Cobb stated in his affidavit that after the closure of YTI's Calhoun, Georgia facility and the merger of its operations into the operations of the Chattanooga, Tennessee facility, plaintiff was required to undergo a DOT physical for the purpose of determining whether he qualified as a regular dockworker at the Chattanooga facility as he did not possess a CDL at that time. Id., at ¶ 10.
Attached as exhibits to Mr. Cobb's January 10, 2004 affidavit are YTI's written job descriptions for the City Driver, Dockworker, and Hostler positions. YTI's written job description for the City Driver position, which is dated November 1, 1993, states in relevant part:
C. BASIC PURPOSE
The primary functions of a City Driver are to operate various tractor-trailer combinations or straight trucks between Company terminals or yards and customer facilities or work sites and to sort, handle, load and/or unload freight at various Company and customer locations in a safe, efficient, and timely manner.
. . .
At many locations, City Drivers also perform the duties of a Road Driver, Dockworker and/or Hostler (See separate job descriptions).
[Court File No. 37, exh. 2, attach. 1]. Subsection D of YTI's written job description for the City Driver position sets forth the minimum qualifications for the position including:
20. Has one current, valid Class A Commercial Drivers License (CDL) with requisite endorsements.
Id.
Also attached to Mr. Cobb's affidavit, is a copy of YTI's written job description for the Dockworker position. The job description, which is dated November 1, 1993, and bears a notation indicating that it was revised as of September 13, 1995, states in relevant part:
A. BASIC PURPOSE
The primary function of a Dockworker is to efficiently sort, handle, and load freight into and unload it from the over-the-road equipment, containers, city trailers and/or straight trucks in accordance with oral and written instructions, as well as federal and state regulations.
. . .
At some locations, Dockworkers also perform the duties of a Hostler, Road Driver and/or City Driver (See separate job descriptions).
Id.
Likewise, YTI's written job description for the Hostler position is attached to the Cobb affidavit. It is similarly dated November 1, 1993 and bears a notation stating that it was revised on September 13, 1995. The Hostler job description states in pertinent part:
D. BASIC PURPOSE
The primary functions of a Hostler are to hostle (i.e., drive, hook, unhook, switch, spot) equipment (tractors, trailer and converter gear) as required in the terminal yard and/or between the terminal and the rail yards or harbor, break down or make up various combinations of tractors and single or multiple trailers, and spot trailers for loading or unloading.
Hostlers are subject to the Hours of Service Regulations of the United States Department of Transportation if they perform any of their work in a driving classification on public streets or roads.
. . .
In some locations, Hostlers may also perform the duties of Dockworker, City Driver, and/or Road Driver (See separate job descriptions).
Id.
The affidavit of Bob Wade, who is the Manager of Labor Relations for YTI is also attached to YTI's response to plaintiff's motion for partial summary judgment. [Court File No. 36]. Mr. Wade's affidavit states in relevant part that:
5. In July 2001, Yellow undertook a change in operations which, among other things, led to the closure of the Calhoun, Georgia terminal and the merger of the Calhoun operations into the Chattanooga terminal.
. . .
8. Yellow is required by Department of Transportation regulations to insure that employees who drive commercial vehicles are qualified to drive.
9. All employees who are required to drive commercial vehicles must hold a valid CDL and successfully pass a DOT physical examination.
10. The Chattanooga terminal has a long-standing requirement that regular dockworkers hold a valid CDL and be able to operate motorized equipment such as forklifts and hostling tractors as well as make pick-ups and deliveries in the city.
Id.
Plaintiff James Betton submitted his affidavit on March 10, 2003. In his affidavit, plaintiff states in relevant part:
In his letter submitting the affidavit, plaintiff's counsel stated that he forgot to attach plaintiff's affidavit to his memorandum in support of his motion for summary judgment [Court File No. 39].
i. I then received a call from Roger Potter — my immediate supervisor at the Calhoun dock who continued in the capacity of the dock foreman at Chattanooga — who tried to recall me only on a part-time basis to work the dock there;
j. When I responded that I had no insurance, and could not afford to pay for it unless working full-time, Potter instructed me to take a physical as a condition of being recalled;
k. Neither . . . nor Yellow informed me that the position allegedly open required me to drive;
l. I reported for the physical, relying on their representation that it was intended only to requalify me as a dockworker, which I had been in Calhoun up until the time of layoff . . .
[Court File No. 40, pp. 1-2].
The affidavit of Roger Potter was submitted by YTI in support of his motion for summary judgment. In his affidavit, Potter stated that he was a dock supervisor at YTI's Calhoun, Georgia facility prior to July 2001 and plaintiff was one of the employees under his supervision [Court File No. 38]. Potter is currently a dock supervisor at YTI's Chattanooga facility. Id. In his affidavit, Potter explicitly denies plaintiff's allegation that he called him to return to work on a part-time basis after the change in operations; and, he also explicitly denies plaintiff's allegation that plaintiff told Potter that he had no insurance and could not afford to pay for it unless he was working full-time. Id. Potter also stated that he advised plaintiff that he needed to take a DOT physical examination in order to obtain a CDL since all regular dockworkers at YTI's Chattanooga terminal were required to be driver-qualified as they were required to do city driving, drive forklifts and perform hostler duties. Id.
Finally, Potter explicitly denied plaintiff's allegations that he was not informed the regular dockworker position at YTI's Chattanooga facility required the regular dockworker to be driver qualified; and, he stated that Plaintiff was aware of this requirement even when he worked at YTI's Calhoun terminal. Id.
Plaintiff's motion for a summary judgment on the ground that the July 16, 2001 examination which he underwent at YTI's behest was a per se violation of the ADA will be denied. First, as is discussed in detail above, plaintiff has failed to establish that he is "disabled" under the ADA. Second, the July 16, 2001 examination was "job related and consistent with a business necessity," 42 U.S.C. § 12113(a).
YTI's has established that prior to July 2001, it had a longstanding requirement that regular dockworkers at its Chattanooga, Tennessee terminal perform, inter alia, city driving for which a CDL was required by the DOT regulations at 49 C.F.R. § 391.41. The evidence which YTI has submitted on this point in persuasive, particularly the job descriptions for the city driver, dockworker and hostler positions. The job description for the city driver position, which was dated November 1, 1993, and the job descriptions for the dockworker and hostler positions, which were also dated November 1, 1993 and were revised on September 13, 1995, predate the events of July 2001 by a considerable number of years.
Based upon the evidence presented by YTI, city driving was an essential function or duty of the regular dockworker position at YTI's Chattanooga facility. Thus, plaintiff was not qualified for the regular dockworker position at YTI's Chattanooga facility because he was unable to perform an essential function of that job. It is undisputed between the parties that plaintiff suffers from insulin dependent diabetes. Based upon this fact, 49 C.F.R. § 391. 41(b)(3) prevented plaintiff from obtaining a CDL. Without a CDL, plaintiff could not have performed the city driving duties of the regular dockworker position at YTI's Chattanooga facility and, under 49 U.S.C. § 391.11(a), YTI could not have permitted plaintiff to perform the city driving portion of the regular dockworker position. Hence, there is no genuine issue of material fact that no accommodation was possible on the part of YTI which would have permitted plaintiff to perform the duties of regular dockworker as it existed at the Chattanooga terminal; and, because the July 16, 2001 examination was performed to determine whether plaintiff could obtain a CDL, it was related to an essential function of the regular dockworker position was not a violation of the ADA.
In his affidavit, plaintiff states that YTI originally offered him the regular dockworker position at its Chattanooga facility on a part-time basis, but that he told them he could not take the position on a part-time basis because he could not afford to pay for insurance if he were only working on a part-time basis. YTI has presented the affidavit of Roger Potter who challenges plaintiff's contentions in this regard. However, this dispute is immaterial because without a CDL, plaintiff could not satisfy the requirements of the regular dockworker position at YTI's Chattanooga terminal, regardless of whether he was offered or employed in that position either on a full-time or part-time basis.
Likewise, it is equally immaterial whether or not plaintiff understood that a CDL was required for the regular dockworker position at YTI's Chattanooga terminal. Even assuming plaintiff was under the mistaken belief that a CDL was not necessary, the evidence before the court shows that there is no genuine issue of material fact that city driving, for which a CDL was required under the DOT regulations, was an essential function of the dockworker position at YTI's Chattanooga terminal.
Moreover, assuming arguendo that plaintiff was disabled under the ADA, in accommodating plaintiff's disability YTI was not obligated to create a "new" position to accommodate plaintiff's disability. See Gile v. United Airlines, Inc., 95 F.2d 492, 499 (7th Cir. 1996). And, any accommodation made pursuant to the ADA need not impose an "undue hardship" on the employer. Id. (citing 42 U.S.C. § 12112(b)(5)(A)). Thus, given its longstanding practice of requiring all regular dockworkers at its Chattanooga facility to perform city driving and hostling duties, and even assuming that plaintiff's insulin dependent diabetes was a "disability" under the ADA, the ADA did not impose an obligation on YTI to create a "new" or "special" dockworker position at its Chattanooga facility which did not involve city driving in order to accommodate plaintiff's insulin dependent diabetes.
Accordingly, as plaintiff is the only party who has sought summary judgment on this issue, that aspect of plaintiff's motion for partial summary judgement which seeks a summary judgment on the ground that YTI's July 16, 2001 medical examination of plaintiff was a per se violation of the ADA will be DENIED.
D. "Pretext Under the ADA and CRA"
Finally, in his motion for summary judgment, plaintiff also refers to his claims of "Pretext under the ADA and CRA." [Court File No. 30, pp. 8-9]. He argues that YTI's failure to rehire him and its "proffered" reason, i.e., that he did not have a CDL, was a "pretext" for "unlawful intentional discrimination" for which he "is entitled to punitive damages for pain and suffering, inconvenience, mental anguish and other nonpecuniary damages" with "such amount to be determined at trial, according to the enlightened conscience of an unbiased jury." Id. at p. 9. This language appears to be mere surplusage; and, if plaintiff is seeking to have such damages determined at trial by a jury, he is not actually seeking a summary judgment as to these matters. Furthermore and at any rate, as is discussed fully above, the court has found that plaintiff is not entitled to a summary judgment on his claims against YTI under the ADA.
E. Plaintiff's State Law Claim of Fraud
Plaintiff also seeks a summary judgment for the state law tort of fraud in the inducement [Court File No. 30, pp. 5-8]. YTI responds that plaintiff's motion for summary judgment with respect to his allegations of "fraud" should be denied on the grounds: (1) there is no allegation of fraud in the Complaint filed in this action, the first mention of a claim of "fraud" was in plaintiff's motion for summary judgment, and (2) even assuming arguendo that plaintiff's state law claim of fraud in the inducement has been properly made by plaintiffs, it is preempted by § 301 of the LMRA. Plaintiff's motion for partial summary judgment seeks a summary judgment on plaintiff's "claim" of fraud in the inducement under Tennessee law, stating:
Count II — Fraud in the Inducement
The five elements of the tort of fraud in the inducement under Tennessee law, defined in the above factual context as "injury to personal property" under the rule of Vance v. Schulder,
547 S.W.2d 927 (Tenn. 1977), and within a three-year statue of limitations, Tenn. Code Ann. Sec. 28-3-105, are: "(1) a false statement concerning a fact material to the transaction; (2) knowledge of the statement's falsity or utter disregard for its truth; (3) intent to induce reliance on the statement; (4) reliance under circumstances manifesting a reasonable right to rely on the statement; (5) an injury resulting from the reliance" Lamb v. Megaflight, Inc., No. W1988-00797-COA-R3-CV (Tenn.App. 02/09/2000) . . .
Here, . . . Yellow . . . intended to, and did, induce reasonable reliance upon the assertion that a job for which plaintiff was eligible was being offered;
[Court File No. 30, pp. 5-6](emphasis in original).
A review of plaintiff's September 20, 2002 complaint [Court File No. 1] reveals that in his "original" complaint plaintiff asserted claims under the ADA [Count I, Court File No. 1, pp. 5-6], the ADEA [Count II, Court File No. 1, pp. 6-7], the OWBPA [Count III, Court File No. 1, pp. 7-8], Title VII (race discrimination)[Court IV, Court File No. 1, pp. 8-10 Count V, Court File No. 1, p. 10], the Tennessee Labor Laws, T.C.A. §§ 2-10-102, 4-21-402, 4-21-407, and "state law of contracts regarding plaintiff's employment and collective bargaining acts and practices respectively . . ." [Count VI, Court File No. 1, pp. 10-11]. Nowhere in his "original" Complaint [Court File No. 1] did plaintiff assert a claim for fraud or fraud in the inducement under Tennessee law.
Thereafter, on November 13, 2002, as part of his response to defendants' Motion to Dismiss, plaintiff sought to amend his complaint [Court File No. 19]. Plaintiff's proposed "Amended Complaint" sought to assert claims under the ADA [Count I, pp. 5-6 Count V, pp. 11-12], the ADEA [Count II, pp. 6-8], the OWBPA [Count III, pp. 8-9], the LMRA, 29 U.S.C. § 151, et seq; [Count IV, pp. 9-10], and the Tennessee Human Rights Act ("THRA"), T.C.A. § 4-21-101, et seq. [Count VI, pp. 12-13]. Again, plaintiff's proposed "amended" complaint makes no mention of fraud or fraud in the inducement under Tennessee law.
Although plaintiff submitted a proposed "Amended Complaint" on November 13, 2002, this court granted in part and denied in part plaintiff's motion to amend the complaint [Court File No. 33].
Thus, plaintiff's claims for "fraud" are not properly before this court. Accordingly, that aspect of plaintiff's motion for partial summary judgment [Court File No. 30] which seeks a summary judgment on plaintiff's claims of "fraud" under the law of Tennessee will be DENIED on the grounds that they have not been properly pled in this action and are not before the Court.
A separate order will enter.
ORDER
In accordance with the accompanying memorandum opinion, the motion by defendant Yellow Transportation, Inc. to dismiss in part [Court File No. 12] is STRICKEN as having been rendered MOOT. The motion of plaintiff James Betton for a partial summary judgment [Court File No. 30] pursuant to FED. R. CIV. P. 56 is DENIED. More specifically:
(1) the plaintiff's motion for partial summary judgment [Court File No. 30] which seeks a summary judgment on the ground that plaintiff is disabled within the meaning of the ADA is DENIED;
(2) the plaintiff's motion for partial summary judgment [Court File No. 30] which seeks a summary judgment on the ground that the July 16, 2001 medical examination which plaintiff underwent at the behest of plaintiff YTI was a per se violation of the ADA is DENIED; and
(3) that aspect of plaintiff's motion for partial summary judgment [Court File No. 30] which seeks a summary judgment on plaintiff's "claims" of fraud in the inducement under the law of Tennessee is DENIED on the ground that those claims are not properly before this court.
SO ORDERED.