Dennis R. Bay v. Cassens Transport Company

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3290
Dennis R. Bay,
Plaintiff-Appellant,
v.
Cassens Transport Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois, East St. Louis Division.
No. 98-433-WDS--William D. Stiehl, Judge.
Argued February 14, 2000--Decided May 11, 2000
Before Bauer, Flaum, and Evans, Circuit Judges.
Flaum, Circuit Judge. Plaintiff-appellant Dennis
R. Bay appeals the district court’s decision
granting summary judgment to Cassens Transport
Company ("Cassens") on Bay’s employment
discrimination claims under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. sec. 12101 et
seq., and the Missouri Human Rights Act ("MHRA"),
Mo. Rev. Stat. sec. 213.010 et seq. Bay alleges
that the district court erred in concluding that
he was required to exhaust his administrative
remedies before pursuing judicial relief. For the
reasons stated below, we affirm the decision of
the district court.
I. Facts
Cassens is engaged in the business of
transporting new vehicles from assembly plants to
automobile dealerships in the United States and
Canada. Dennis R. Bay was first employed by
Cassens as a long-haul truck driver in June 1987.
On May 21, 1997, Bay experienced chest pains
and dizziness while driving and sought treatment
at Franklin County Hospital in Benton, Illinois.
While at the hospital Bay underwent initial
testing, but he was released on the condition
that he seek further medical consultation. On May
23, 1997, Bay again experienced chest pains. Bay
was then admitted to Missouri Baptist Medical

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Center where he was diagnosed with profound sinus
bradycardia with near syncope (loss of
consciousness) and near fainting. Bay underwent
surgery to implant a pacemaker to correct this
problem on May 27, 1997, and remained on a
medical leave of absence from work.
At the end of June 1997, Cassens instructed Bay
to report to Healthline, an organization with
which Cassens has an ongoing relationship to
perform Department of Transportation ("DOT")
physicals, for a return-to-work DOT
recertification examination. When Bay informed
Healthline of the medical condition that resulted
in his leave, Healthline told him that it would
have to review his medical records before
determining his physical qualifications to return
to work. After a review of these records, Dr.
Cheryl L. Patterson, a physician at Healthline,
informed Cassens that she believed Bay was
permanently disqualified from driving under DOT
safety regulations.
Bay disputed Healthline’s disqualification
determination and, pursuant to the collective
bargaining agreement between Cassens and Bay’s
union, Bay was sent to an impartial physician to
resolve the dispute. After examining Bay, Dr.
Gerald A. Wolff, a cardiologist, stated that Bay
appeared to fall into a category of pacemaker
recipients who could return to commercial
driving. However, Dr. Wolff would not state
definitively that Bay was qualified to drive
under DOT regulations, and he suggested that Bay
seek a waiver from DOT. The regulations do not
provide for waivers for cardiac conditions.
On October 22, 1997, Bay’s union filed a
grievance on Bay’s behalf requesting that he be
reinstated based on the union’s belief that Dr.
Wolff had found Bay DOT-qualified. Cassens denied
Bay’s grievance, and the union pursued the
collectively-bargained grievance procedure.
Ultimately, an arbitration panel ruled that Dr.
Wolff had not provided a definite determination
of Bay’s qualifications to return to work. The
panel then ordered the parties to select another
doctor to perform a DOT examination.
The parties selected Dr. Stephen Pieper to
perform the DOT examination, and Dr. Pieper found
Bay qualified under applicable DOT regulations.
The arbitration panel then ordered Cassens to
reinstate Bay, but found that Cassens had been
under no obligation to return Bay to work until
a third-party doctor definitively found Bay
qualified to resume driving. Consequently, the
Board only awarded back pay for the company’s
three-day delay in reinstating Bay after Dr.
Pieper’s certification. Bay was returned to work
on March 9, 1998.

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On January 6, 1998, Bay filed a charge of
discrimination with the Equal Employment
Opportunity Commission ("EEOC") and the Missouri
Human Rights Commission ("MHRC"), alleging that
Cassens violated the ADA and the MHRA when it
refused to allow him to return to work. The EEOC
issued a dismissal and notice of right to sue
letter on March 27, 1998, and the MHRC issued a
right to sue letter on June 8, 1998.
Bay then filed suit in the United States
District Court for the Southern District of
Illinois, alleging that Cassens had violated his
rights under the ADA and the MHRA. Cassens moved
for summary judgment, and the district court
granted that motion on the ground that Bay had
failed to exhaust his administrative remedies.
Bay now appeals this grant of summary judgment,
arguing that neither the ADA nor the MHRA require
a plaintiff to exhaust administrative remedies
before filing suit.
II. Analysis
We review the district court’s grant of summary
judgment de novo. See Johnson v. Zema Sys. Corp.,
170 F.3d 734, 742 (7th Cir. 1999). In order to
overcome summary judgment, Bay must show specific
facts sufficient to raise a genuine issue for
trial. Fed. R. Civ. P. 56(c); see Shermer v.
Illinois Dep’t of Transp., 171 F.3d 475, 477 (7th
Cir. 1999) (citing Celotex Corp. v. Catrett, 477
U.S. 317 (1986)). In determining whether a
genuine issue of material fact exists, we
construe all facts in the light most favorable to
the non-moving party and draw all reasonable
inferences in favor of that party. See Senner v.
Northcentral Technical C., 113 F.3d 750, 754 (7th
Cir. 1997). "A genuine issue for trial exists
only when a reasonable jury could find for the
party opposing the motion based on the record as
a whole." Roger v. Yellow Freight Sys., Inc., 21
F.3d 146, 149 (7th Cir. 1994). In considering the
district court’s decision on appeal, we may
affirm on a ground other than that relied on by
the district court so long as it is adequately
supported in the record and the law. See Divane
v. Krull Electric Co., Inc., 200 F.3d 1020, 1026
(7th Cir. 1999).
The ADA provides that "no covered entity shall
discriminate against a qualified individual with
a disability because of the disability of such
individual 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. sec.
12112(a). A "qualified individual with a

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disability" is defined 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. sec.
12111(8). A disability is then defined 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. sec.
12102(2).
In attempting to establish that Cassens violated
the ADA through its refusal to allow him to
return to work as a commercial truck driver, Bay
relies on the "regarded as" prong of the ADA’s
disability definition. 42 U.S.C. sec.
12102(2)(C). Bay can demonstrate that he falls
within the "regarded as" definition of a
disability by showing that: "(1) a covered entity
mistakenly believes that a person has a physical
impairment that substantially limits one or more
major life activities, or (2) a covered entity
mistakenly believes that an actual, nonlimiting
impairment substantially limits one or more major
life activities." Sutton v. United Air Lines,
Inc., 119 S.Ct. 2139, 2149-50 (1999). In this
case, Bay contends that his rights under the ADA
were violated when Cassens refused to allow him
to return to work because it mistakenly believed
the profound sinus bradycardia with near syncope
and near fainting he suffered before implantation
of the pacemaker substantially limited him in the
major life activity of working (in this case,
driving a truck).
Although the district court granted Cassens
summary judgment on Bay’s ADA claim based on
Bay’s failure to exhaust his administrative
remedies, we first consider the threshold
question of whether Bay has raised a genuine
issue of material fact as to all the elements of
an ADA claim. In this regard, much of Cassens’s
response to Bay’s ADA claim focuses on Bay’s
failure to pass a recertification examination
prior to the physical conducted by Dr. Pieper on
March 6, 1998. First, Cassens contends that
because DOT certification is a legitimate
requirement for Bay’s job as a commercial truck
driver, Bay was not an "otherwise qualified"
individual within the meaning of the ADA until he
was recertified. Second, Cassens contends that
because Bay did not produce any evidence that it
refused to reinstate him because it regarded him
as disabled, but rather only demonstrated that
Cassens relied on Bay’s lack of certification in
making its decision, Bay cannot demonstrate that
Cassens regarded Bay as disabled. Under both of
these theories, Cassens asserts that its reliance
on DOT regulations requiring commercial truck

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drivers to obtain certification precludes
liability under the ADA as long as Cassens
actually relied on those regulations in refusing
to reinstate Bay.
It is well-established that a plaintiff has the
burden of proving that he is "qualified" to
perform the essential functions of the job he
holds or seeks, with or without reasonable
accommodation./1 See Best v. Shell Oil Co., 107
F.3d 544, 547-48 (7th Cir. 1997); Weiler v.
Household Fin. Corp., 101 F.3d 519, 524 (7th Cir.
1996); DeLuca v. Winer Indus., Inc., 53 F.3d 793,
797 (7th Cir. 1995). Our inquiry into whether Bay
was qualified to resume his duties as a
commercial truck driver involves a two-step
analysis. See Bombard v. Fort Wayne Newspapers,
Inc., 92 F.3d 560, 563 (7th Cir. 1996). We first
consider whether "the individual satisfies the
prerequisites for the position, such as
possessing the appropriate educational
background, employment experience, skills,
licenses, etc." 29 C.F.R. app. sec. 1630.2(m). If
the individual possesses the appropriate
prerequisites for the position, we then consider
"whether or not the individual can perform the
essential functions of the position held or
desired, with or without reasonable
accommodation." Id. Whether or not an individual
meets the definition of a qualified individual
with a disability is to be determined as of the
time the employment decision was made. See
Weiler, 101 F.3d at 524.
Cassens argues that Bay cannot sustain his
burden to show he was qualified to return to work
as a commercial truck driver because, at the time
Bay sought reinstatement, he did not possess the
DOT certification that was required in order for
him to work in that position. 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." 42 U.S.C.
sec. 12113(a); 29 C.F.R. sec. 1630.15(b)(1).
Moreover, an employer may have a defense to a
charge of discrimination if an action is
"required or necessitated by another Federal law
or regulation." 29 C.F.R. sec. 1630.15(e). Under
applicable DOT regulations, Cassens was not
allowed to permit Bay to resume driving until he
produced a copy of a doctor’s certificate
indicating he was physically qualified to drive,
49 C.F.R. sec. 391.11(a); 49 C.F.R. sec.
391.41(a), and nothing in the ADA purports to
change that obligation, see Thoms v. ABF Freight
Sys., Inc., 31 F.Supp.2d 1119, 1127 (E.D.Wis.
1998) ("The ADA does not override health and
safety requirements established under other
Federal laws.") (quoting EEOC Technical

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Assistance Manual at IV-16). In light of these
DOT standards, we agree that Bay’s failure to
obtain DOT certification is fatal to his ADA
claim.
Bay argues that Dr. Patterson’s refusal to
state that he was physically qualified to drive,
and his consequent inability to gain the
necessary certification, does not indicate that
he was not "otherwise qualified" to drive a
commercial vehicle under the terms of the ADA. In
essence, Bay contends that a company may not rely
on the results of a recertification examination
if that examination incorrectly applies the
relevant DOT standards. However, under the
circumstances presented in this case, we will not
look behind Bay’s initial inability to attain
certification and second-guess the medical
determination of Dr. Patterson. See Murphy v.
UPS, 119 S.Ct. 2133, 2138 (1999) ("Had a
physician examined petitioner and, in light of
his medical history, declined to issue a
temporary DOT certification, we would not second-
guess that decision."); Campbell v. Federal
Express Corp., 918 F.Supp. 912, 918 (D.Md. 1996)
(stating that an employer is "entitled to rely on
medical determinations made by its medical
professionals"). At the point Dr. Patterson
refused to recertify Bay, Cassens was not only
entitled to rely on that judgment, but was
legally required to refuse Bay’s request to
return to driving a commercial motor vehicle
until he presented the proper certification. See
Albertsons, Inc. v. Kirkingburg, 119 S.Ct. 2162,
2171 (1999) (stating that employers have an
"unconditional obligation to follow the [DOT]
regulation[s] and [a] consequent right to do
so").
It was not until Dr. Pieper determined that Bay
was qualified to drive pursuant to DOT standards
that he was "otherwise qualified" under the ADA.
See Prado v. Continental Air Trans. Co., 982
F.Supp. 1304, 1307 (N.D.Ill. 1997) (stating that
"to become a ’qualified individual’ under the
ADA, . . . drivers must be DOT certified or be
able to obtain DOT certification" by passing "the
requisite physical examination"). Significantly,
this is the point at which Cassens allowed Bay to
resume driving. Whether a certification dispute
is resolved through administrative procedures, or
through a private collective bargaining process,
it is only when a dispute is resolved in favor of
the employee that an employer is obligated to
return the employee to work. Until that point,
Cassens was entitled to rely on Bay’s failure to
obtain certification in refusing to allow him to
resume his employment as a commercial truck
driver, and Cassens may assert Bay’s lack of
certification as a valid defense to Bay’s ADA

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claim./2 See 42 U.S.C. sec. 12113(a); 29 C.F.R.
sec. 1630.15(e); Albertsons, 119 S.Ct. at 2171 &
n.16.; Rice v. Genova Products, Inc., 978 F.Supp.
813, 822 (N.D.Ind. 1997) ("[I]t is well-
established in the case law, the ADA itself, and
the legislative history of the Act that reliance
on a federal requirement or regulation
constitutes a defense to an ADA claim . . . .").
Although we decline to look behind Bay’s lack
of certification on the facts presented here, we
emphasize that this holding does not preclude
courts from examining the medical basis for a
certification decision in all circumstances. In
cases where the doctor’s disqualification
decision is based on a condition not covered by
DOT regulations, see, e.g., EEOC v. Texas Bus
Lines, 923 F.Supp. 965 (S.D.Tex. 1996), or where
the plaintiff’s lack of certification is used as
a pretext for discrimination, see Silk v. City of
Chicago, 194 F.3d 788, 799 (7th Cir. 1999)
(applying the McDonnell Douglas burden-shifting
test to disparate treatment claims under the
ADA), or if an employer is working in collusion
with a medical professional to deny
certification, a plaintiff’s lack of
certification may not be decisive./3 However, in
this case there is no evidence that Cassens acted
in any way to prevent Bay from being recertified
or that Cassens acted in bad faith, nor is there
any indication that Cassens’s reliance on Dr.
Patterson’s medical determination was
unreasonable./4 We therefore find that Bay was
not "otherwise qualified" under the ADA because
he lacked the necessary DOT certification.
Because Bay failed to make out an element of his
ADA claim, the district court’s grant of summary
judgment on Bay’s employment discrimination
claims was proper. See Weiler, 101 F.3d at 523.
Accordingly, we need not address the other issues
presented by this case, including the
administrative exhaustion ground relied on by the
district court./5
III. Conclusion
For the foregoing reasons, we AFFIRM the decision
of the district court.
/1 Although the remainder of the opinion will
analyze Bay’s claim in the context of the ADA,
the same framework applies to his MHRA claim as
well. See Mole v. Buckhorn Rubber Products, Inc.,
165 F.3d 1212, 1216 (8th Cir. 1999) (stating that
in order to establish a claim under the MHRA, a
plaintiff must demonstrate that he was "qualified
to perform the essential functions of [the] job
with or without reasonable accommodation").

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/2 Bay argues that allowing Cassens to assert its
reliance on Bay’s lack of certification as a
defense, without a showing that Bay did not
actually meet DOT qualification standards, would
permit a company to use its own doctor to shield
itself from liability under the ADA. We disagree.
First, as noted below, a company may not be able
to escape liability in situations where a
plaintiff can demonstrate that the company’s
reliance on its doctor’s medical determination
was unreasonable or in bad faith. Second, in
cases where a company does act reasonably and in
good faith, an employee can resort to
administrative procedures for resolving medical
disputes under 49 U.S.C. sec. 391.47 (providing
for application to the Director of the Office of
Motor Carrier Research Standards for the
resolution of disputes). In other words, while an
employee may not be able to subject an employer
who acts reasonably and in good faith to
liability under the ADA, that employee may still
enforce his right to return to work under an
alternative regulatory scheme.
/3 We do not intend this to be an exhaustive list of
the situations in which a court might disregard
an employer’s reliance on a medical
determination. This list is only to emphasize
that our holding is limited to cases where an
employer’s reliance on the determination of a
medical professional is reasonable and in good
faith.
/4 Bay seems to contend that Cassens was not
entitled to rely on the judgment of Dr. Patterson
because she worked for Healthline, an
organization with which Cassens had an ongoing
relationship. Although we do not reject the idea
that a court could second-guess a medical
determination when a significant conflict of
interest exists, this case does not rise to that
level. A mere ongoing relationship between a
company and a health organization does not
demonstrate a conflict of interest, nor is there
any evidence in the record that Dr. Patterson’s
evaluation was biased. Medical judgments are
subjective and may vary from doctor to doctor,
and a company is "entitled to rely on the
determinations made by its medical
professionals," Campbell, 918 F.Supp. at 918, as
long as that reliance is reasonable and in good
faith.
/5 Although we do not decide the applicability of
administrative exhaustion to ADA cases like the
instant one, we recognize that such a requirement
might be appropriate. The DOT has set up a
procedure for the resolution of disputes over
medical determinations under 49 C.F.R. sec.
391.47, and that procedure provides a means by

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which employees may challenge a certification
decision without resort to the courts. Where
these kinds of administrative procedures are
available, a plaintiff is generally required to
exhaust these avenues for relief. See Reiter v.
Cooper, 507 U.S. 258, 269 (1993).

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