COVID-19 PANDEMIC: See our Blog Posts for the latest Legal Information pertaining to the Corona Virus and Employee Rights.

Employers Cannot Escape Discrimination Against Drivers Based On Revocation Of DOT Card

Employers Cannot Escape Discrimination Against Drivers Based On Revocation Of DOT Card

Workers who drive commercial vehicles for their employers are required by the U.S. Department of Transportation (DOT) to submit to a medical examination performed by an employer’s chosen doctor to establish that they are fit to drive. Upon passing the examination, the driver receives a “DOT card.”

In 2016, Lebau & Neuworth filed a complaint on behalf of a driver who was fired after the employer’s doctor revoked the driver’s DOT card after he suffered a stroke. All of the driver’s treating doctors cleared the driver to return to work and to drive trucks, but that did not stop the employer’s doctor, who was not a stroke specialist or certified in occupational medicine, from concluding that the driver was still not fit to drive.

The facts show that the employer discriminated against the driver because of his disability and age (he was 65 when he had the stroke) and used the DOT medical examination process as an excuse to fire him.

The employer attempted to get the case thrown out of court by saying the driver was first required to challenge the employer’s doctor through the DOT process. But the Court would have none of that, and on March 14, 2017, the Court ruled in our clients’ favor:

After considering the parties’ submissions, the court is not convinced that  plaintiff’s ADA and ADEA claims implicate the DOT procedures under section 391.47, much less that plaintiff must exhaust those procedures before this court can exercise jurisdiction over the case. Section 391.47 narrowly provides that a driver may seek an independent resolution of conflicting medical evaluations regarding driving qualifications. See 7 C.F.R  §  391.47.  Plaintiff, however, does much more than challenge the merits of Dr. Poludniak’s medical evaluation—he alleges a pervasive scheme of discriminatory treatment, including defendant’s failure to make an individualized assessment of plaintiff’s impairments (ECF No. 1 ¶¶ 116–117), to engage plaintiff in the interactive process), and to reasonably accommodate plaintiff by retaining him as a Laborer or reassigning him to a vacant position (ECF No. 21 at 10). Section 391.47, to the extent it is relevant, does not provide plaintiff an opportunity to challenge his termination on these grounds.

Defendant argues that this court should decline jurisdiction as a matter of administrative deference, but the cases it relies on are inapposite and readily distinguishable. First, the plaintiffs in Harris and Campbell were challenging the defendants’ failure to hire them, not the defendants’ decision to terminate them, and the bulk of plaintiff’s factual allegations in this case are specific to a claim of discriminatory discharge. Moreover, even in Campbell, the court noted that the exhaustion defense could be rebutted by a showing of “pretext,” but concluded that the plaintiff in that case had not made a sufficient showing of discriminatory intent. Campbell, 918 F. Supp. at 917. By contrast, here, plaintiff has alleged facts sufficient to give rise to an inference of pretext, including defendant’s decisions to terminate plaintiff prior to his one year reassessment (ECF No. 1 ¶¶ 75–76) and to hire younger, non-disabled employees for the Laborer position (Id. ¶¶ 60–62). To require exhaustion of DOT procedures under these circumstances, where a plaintiff has alleged discriminatory intent and a tainted process, would be futile and at odds with the remedial purposes of the ADA and ADEA. See Pathways Psychosocial v. Town of Leonardtown, 133 F. Supp. 2d 772, 780 (D. Md. 2001) (“As a remedial statute, the ADA must be broadly construed to effectuate its purpose.” (internal quotation marks omitted)). In any case, these considerations are not jurisdictional in nature, and plaintiff’s suit should proceed to discovery. See Williams v. J.B. Hunt Transport, Inc., 826 F.3d 806, 810 (5th Cir. 2016) (“No statute requires that an ADA plaintiff exhaust the § 391.47 process before filing a lawsuit, let alone does so in jurisdictional terms. Thus, the district court should not have dismissed this ADA claim for lack of subject-matter jurisdiction.” (citations omitted)).

Lebau & Neuworth attorneys look forward to getting justice for our client and will provide updates as the case continues.

If you feel you are being treated unfairly because you are disabled, the attorneys at Lebau & Neuworth may be able to help you. Contact us at 888-456-2529 or

No-Risk Call

Contact the Lebau & Neuworth team to discuss your matter.
We are here to help.

Fill out my online form.
Links to Lebau & Neuworth on AV Preeminent
Links to Richard P. Neuworth on Super Lawyers
Links to Lebau & Neuworth on The Best Lawyers in America
Links to Stephen B. Lebau on Super Lawyers
Links to Lebau & Neuworth Avvo Rating