The full case caption appears at the
end of this opinion. Flaum, Circuit Judge. Plaintiff-appellant DennisR. Bay appeals the district court’s decisiongranting summary judgment to Cassens TransportCompany (“Cassens”) on Bay’s employmentdiscrimination claims under the Americans withDisabilities Act (“ADA”), 42 U.S.C. sec. 12101 etseq., and the Missouri Human Rights Act (“MHRA”),Mo. Rev. Stat. sec. 213.010 et seq. Bay allegesthat the district court erred in concluding thathe was required to exhaust his administrativeremedies before pursuing judicial relief. For thereasons stated below, we affirm the decision ofthe district court. I. Facts Cassens is engaged in the business oftransporting new vehicles from assembly plants toautomobile dealerships in the United States andCanada. Dennis R. Bay was first employed byCassens as a long-haul truck driver in June 1987. On May 21, 1997, Bay experienced chest painsand dizziness while driving and sought treatmentat Franklin County Hospital in Benton, Illinois.While at the hospital Bay underwent initialtesting, but he was released on the conditionthat he seek further medical consultation. On May23, 1997, Bay again experienced chest pains. Baywas then admitted to Missouri Baptist MedicalCenter where he was diagnosed with profound sinusbradycardia with near syncope (loss ofconsciousness) and near fainting. Bay underwentsurgery to implant a pacemaker to correct thisproblem on May 27, 1997, and remained on amedical leave of absence from work. At the end of June 1997, Cassens instructed Bayto report to Healthline, an organization withwhich Cassens has an ongoing relationship toperform Department of Transportation (“DOT”)physicals, for a return-to-work DOTrecertification examination. When Bay informedHealthline of the medical condition that resultedin his leave, Healthline told him that it wouldhave to review his medical records beforedetermining his physical qualifications to returnto work. After a review of these records, Dr.Cheryl L. Patterson, a physician at Healthline,informed Cassens that she believed Bay waspermanently disqualified from driving under DOTsafety regulations. Bay disputed Healthline’s disqualificationdetermination and, pursuant to the collectivebargaining agreement between Cassens and Bay’sunion, Bay was sent to an impartial physician toresolve the dispute. After examining Bay, Dr.Gerald A. Wolff, a cardiologist, stated that Bayappeared to fall into a category of pacemakerrecipients who could return to commercialdriving. However, Dr. Wolff would not statedefinitively that Bay was qualified to driveunder DOT regulations, and he suggested that Bayseek a waiver from DOT. The regulations do notprovide for waivers for cardiac conditions. On October 22, 1997, Bay’s union filed agrievance on Bay’s behalf requesting that he bereinstated based on the union’s belief that Dr.Wolff had found Bay DOT-qualified. Cassens deniedBay’s grievance, and the union pursued thecollectively-bargained grievance procedure.Ultimately, an arbitration panel ruled that Dr.Wolff had not provided a definite determinationof Bay’s qualifications to return to work. Thepanel then ordered the parties to select anotherdoctor to perform a DOT examination. The parties selected Dr. Stephen Pieper toperform the DOT examination, and Dr. Pieper foundBay qualified under applicable DOT regulations.The arbitration panel then ordered Cassens toreinstate Bay, but found that Cassens had beenunder no obligation to return Bay to work untila third-party doctor definitively found Bayqualified to resume driving. Consequently, theBoard only awarded back pay for the company’sthree-day delay in reinstating Bay after Dr.Pieper’s certification. Bay was returned to workon March 9, 1998. On January 6, 1998, Bay filed a charge ofdiscrimination with the Equal EmploymentOpportunity Commission (“EEOC”) and the MissouriHuman Rights Commission (“MHRC”), alleging thatCassens violated the ADA and the MHRA when itrefused to allow him to return to work. The EEOCissued a dismissal and notice of right to sueletter on March 27, 1998, and the MHRC issued aright to sue letter on June 8, 1998. Bay then filed suit in the United StatesDistrict Court for the Southern District ofIllinois, alleging that Cassens had violated hisrights under the ADA and the MHRA. Cassens movedfor summary judgment, and the district courtgranted that motion on the ground that Bay hadfailed to exhaust his administrative remedies.Bay now appeals this grant of summary judgment,arguing that neither the ADA nor the MHRA requirea plaintiff to exhaust administrative remediesbefore filing suit. II. Analysis We review the district court’s grant of summaryjudgment de novo. See Johnson v. Zema Sys. Corp.,170 F.3d 734, 742 (7th Cir. 1999). In order toovercome summary judgment, Bay must show specificfacts sufficient to raise a genuine issue fortrial. Fed. R. Civ. P. 56(c); see Shermer v.Illinois Dep’t of Transp., 171 F.3d 475, 477 (7thCir. 1999) (citing Celotex Corp. v. Catrett, 477U.S. 317 (1986)). In determining whether agenuine issue of material fact exists, weconstrue all facts in the light most favorable tothe non-moving party and draw all reasonableinferences in favor of that party. See Senner v.Northcentral Technical C., 113 F.3d 750, 754 (7thCir. 1997). “A genuine issue for trial existsonly when a reasonable jury could find for theparty opposing the motion based on the record asa whole.” Roger v. Yellow Freight Sys., Inc., 21F.3d 146, 149 (7th Cir. 1994). In considering thedistrict court’s decision on appeal, we mayaffirm on a ground other than that relied on bythe district court so long as it is adequatelysupported in the record and the law. See Divanev. Krull Electric Co., Inc., 200 F.3d 1020, 1026(7th Cir. 1999). The ADA provides that “no covered entity shalldiscriminate against a qualified individual witha disability because of the disability of suchindividual in regard to job applicationprocedures, the hiring, advancement, or dischargeof employees, employee compensation, jobtraining, and other terms, conditions, andprivileges of employment.” 42 U.S.C. sec.12112(a). A “qualified individual with adisability” is defined as “an individual with adisability who, with or without reasonableaccommodation, can perform the essentialfunctions of the employment position that suchindividual holds or desires.” 42 U.S.C. sec.12111(8). A disability is then defined as: “(A)a physical or mental impairment thatsubstantially limits one or more of the majorlife activities of such individual; (B) a recordof such an impairment; or (C) being regarded ashaving such an impairment.” 42 U.S.C. sec.12102(2). In attempting to establish that Cassens violatedthe ADA through its refusal to allow him toreturn to work as a commercial truck driver, Bayrelies on the “regarded as” prong of the ADA’sdisability definition. 42 U.S.C. sec.12102(2)(C). Bay can demonstrate that he fallswithin the “regarded as” definition of adisability by showing that: “(1) a covered entitymistakenly believes that a person has a physicalimpairment that substantially limits one or moremajor life activities, or (2) a covered entitymistakenly believes that an actual, nonlimitingimpairment substantially limits one or more majorlife activities.” Sutton v. United Air Lines,Inc., 119 S.Ct. 2139, 2149-50 (1999). In thiscase, Bay contends that his rights under the ADAwere violated when Cassens refused to allow himto return to work because it mistakenly believedthe profound sinus bradycardia with near syncopeand near fainting he suffered before implantationof the pacemaker substantially limited him in themajor life activity of working (in this case,driving a truck). Although the district court granted Cassenssummary judgment on Bay’s ADA claim based onBay’s failure to exhaust his administrativeremedies, we first consider the thresholdquestion of whether Bay has raised a genuineissue of material fact as to all the elements ofan ADA claim. In this regard, much of Cassens’sresponse to Bay’s ADA claim focuses on Bay’sfailure to pass a recertification examinationprior to the physical conducted by Dr. Pieper onMarch 6, 1998. First, Cassens contends thatbecause DOT certification is a legitimaterequirement for Bay’s job as a commercial truckdriver, Bay was not an “otherwise qualified”individual within the meaning of the ADA until hewas recertified. Second, Cassens contends thatbecause Bay did not produce any evidence that itrefused to reinstate him because it regarded himas disabled, but rather only demonstrated thatCassens relied on Bay’s lack of certification inmaking its decision, Bay cannot demonstrate thatCassens regarded Bay as disabled. Under both ofthese theories, Cassens asserts that its relianceon DOT regulations requiring commercial truckdrivers to obtain certification precludesliability under the ADA as long as Cassensactually relied on those regulations in refusingto reinstate Bay. It is well-established that a plaintiff has theburden of proving that he is “qualified” toperform the essential functions of the job heholds or seeks, with or without reasonableaccommodation.
[FOOTNOTE 1] See Best v. Shell Oil Co., 107F.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 Baywas qualified to resume his duties as acommercial truck driver involves a two-stepanalysis. See Bombard v. Fort Wayne Newspapers,Inc., 92 F.3d 560, 563 (7th Cir. 1996). We firstconsider whether “the individual satisfies theprerequisites for the position, such aspossessing the appropriate educationalbackground, employment experience, skills,licenses, etc.” 29 C.F.R. app. sec. 1630.2(m). Ifthe individual possesses the appropriateprerequisites for the position, we then consider”whether or not the individual can perform theessential functions of the position held ordesired, with or without reasonableaccommodation.” Id. Whether or not an individualmeets the definition of a qualified individualwith a disability is to be determined as of thetime the employment decision was made. SeeWeiler, 101 F.3d at 524. Cassens argues that Bay cannot sustain hisburden to show he was qualified to return to workas a commercial truck driver because, at the timeBay sought reinstatement, he did not possess theDOT certification that was required in order forhim to work in that position. Under the ADA, anemployer can apply “qualification standards” thatdeny a job to an individual with a disability aslong as those standards are “job-related andconsistent 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 acharge of discrimination if an action is”required or necessitated by another Federal lawor regulation.” 29 C.F.R. sec. 1630.15(e). Underapplicable DOT regulations, Cassens was notallowed to permit Bay to resume driving until heproduced a copy of a doctor’s certificateindicating 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 tochange that obligation, see Thoms v. ABF FreightSys., Inc., 31 F.Supp.2d 1119, 1127 (E.D.Wis.1998) (“The ADA does not override health andsafety requirements established under otherFederal laws.”) (quoting EEOC TechnicalAssistance Manual at IV-16). In light of theseDOT standards, we agree that Bay’s failure toobtain DOT certification is fatal to his ADAclaim. Bay argues that Dr. Patterson’s refusal tostate that he was physically qualified to drive,and his consequent inability to gain thenecessary certification, does not indicate thathe was not “otherwise qualified” to drive acommercial vehicle under the terms of the ADA. Inessence, Bay contends that a company may not relyon the results of a recertification examinationif that examination incorrectly applies therelevant DOT standards. However, under thecircumstances presented in this case, we will notlook behind Bay’s initial inability to attaincertification and second-guess the medicaldetermination of Dr. Patterson. See Murphy v.UPS, 119 S.Ct. 2133, 2138 (1999) (“Had aphysician examined petitioner and, in light ofhis medical history, declined to issue atemporary DOT certification, we would not second-guess that decision.”); Campbell v. FederalExpress Corp., 918 F.Supp. 912, 918 (D.Md. 1996)(stating that an employer is “entitled to rely onmedical determinations made by its medicalprofessionals”). At the point Dr. Pattersonrefused to recertify Bay, Cassens was not onlyentitled to rely on that judgment, but waslegally required to refuse Bay’s request toreturn to driving a commercial motor vehicleuntil he presented the proper certification. SeeAlbertsons, 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 doso”). It was not until Dr. Pieper determined that Baywas qualified to drive pursuant to DOT standardsthat he was “otherwise qualified” under the ADA.See Prado v. Continental Air Trans. Co., 982F.Supp. 1304, 1307 (N.D.Ill. 1997) (stating that”to become a ‘qualified individual’ under theADA, . . . drivers must be DOT certified or beable to obtain DOT certification” by passing “therequisite physical examination”). Significantly,this is the point at which Cassens allowed Bay toresume driving. Whether a certification disputeis resolved through administrative procedures, orthrough a private collective bargaining process,it is only when a dispute is resolved in favor ofthe employee that an employer is obligated toreturn the employee to work. Until that point,Cassens was entitled to rely on Bay’s failure toobtain certification in refusing to allow him toresume his employment as a commercial truckdriver, and Cassens may assert Bay’s lack ofcertification as a valid defense to Bay’s ADAclaim.
[FOOTNOTE 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, andthe legislative history of the Act that relianceon a federal requirement or regulationconstitutes a defense to an ADA claim . . . .”). Although we decline to look behind Bay’s lackof certification on the facts presented here, weemphasize that this holding does not precludecourts from examining the medical basis for acertification decision in all circumstances. Incases where the doctor’s disqualificationdecision is based on a condition not covered byDOT regulations, see, e.g., EEOC v. Texas BusLines, 923 F.Supp. 965 (S.D.Tex. 1996), or wherethe plaintiff’s lack of certification is used asa pretext for discrimination, see Silk v. City ofChicago, 194 F.3d 788, 799 (7th Cir. 1999)(applying the McDonnell Douglas burden-shiftingtest to disparate treatment claims under theADA), or if an employer is working in collusionwith a medical professional to denycertification, a plaintiff’s lack ofcertification may not be decisive.
[FOOTNOTE 3] However, inthis case there is no evidence that Cassens actedin any way to prevent Bay from being recertifiedor that Cassens acted in bad faith, nor is thereany indication that Cassens’s reliance on Dr.Patterson’s medical determination wasunreasonable.
[FOOTNOTE 4] We therefore find that Bay wasnot “otherwise qualified” under the ADA becausehe lacked the necessary DOT certification.Because Bay failed to make out an element of hisADA claim, the district court’s grant of summaryjudgment on Bay’s employment discriminationclaims was proper. See Weiler, 101 F.3d at 523.Accordingly, we need not address the other issuespresented by this case, including theadministrative exhaustion ground relied on by thedistrict court.
[FOOTNOTE 5] III. Conclusion For the foregoing reasons, we AFFIRM the decisionof the district court. :::FOOTNOTES:::
FN1 Although the remainder of the opinion willanalyze Bay’s claim in the context of the ADA,the same framework applies to his MHRA claim aswell. See Mole v. Buckhorn Rubber Products, Inc.,165 F.3d 1212, 1216 (8th Cir. 1999) (stating thatin order to establish a claim under the MHRA, aplaintiff must demonstrate that he was “qualifiedto perform the essential functions of [the] jobwith or without reasonable accommodation”).
FN2 Bay argues that allowing Cassens to assert itsreliance on Bay’s lack of certification as adefense, without a showing that Bay did notactually meet DOT qualification standards, wouldpermit a company to use its own doctor to shielditself from liability under the ADA. We disagree.First, as noted below, a company may not be ableto escape liability in situations where aplaintiff can demonstrate that the company’sreliance on its doctor’s medical determinationwas unreasonable or in bad faith. Second, incases where a company does act reasonably and ingood faith, an employee can resort toadministrative procedures for resolving medicaldisputes under 49 U.S.C. sec. 391.47 (providingfor application to the Director of the Office ofMotor Carrier Research Standards for theresolution of disputes). In other words, while anemployee may not be able to subject an employerwho acts reasonably and in good faith toliability under the ADA, that employee may stillenforce his right to return to work under analternative regulatory scheme.
FN3 We do not intend this to be an exhaustive list ofthe situations in which a court might disregardan employer’s reliance on a medicaldetermination. This list is only to emphasizethat our holding is limited to cases where anemployer’s reliance on the determination of amedical professional is reasonable and in goodfaith.
FN4 Bay seems to contend that Cassens was notentitled to rely on the judgment of Dr. Pattersonbecause she worked for Healthline, anorganization with which Cassens had an ongoingrelationship. Although we do not reject the ideathat a court could second-guess a medicaldetermination when a significant conflict ofinterest exists, this case does not rise to thatlevel. A mere ongoing relationship between acompany and a health organization does notdemonstrate a conflict of interest, nor is thereany evidence in the record that Dr. Patterson’sevaluation was biased. Medical judgments aresubjective and may vary from doctor to doctor,and a company is “entitled to rely on thedeterminations made by its medicalprofessionals,” Campbell, 918 F.Supp. at 918, aslong as that reliance is reasonable and in goodfaith.
FN5 Although we do not decide the applicability ofadministrative exhaustion to ADA cases like theinstant one, we recognize that such a requirementmight be appropriate. The DOT has set up aprocedure for the resolution of disputes overmedical determinations under 49 C.F.R. sec.391.47, and that procedure provides a means bywhich employees may challenge a certificationdecision without resort to the courts. Wherethese kinds of administrative procedures areavailable, a plaintiff is generally required toexhaust these avenues for relief. See Reiter v.Cooper, 507 U.S. 258, 269 (1993).
Bay v. Cassens Transp. Co. 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.
