RICK C. LOVE, Plaintiff-Appellant,
PRIME, INC., Defendant-Respondent.
Argued and submitted on July 07, 2011.
Marion County Circuit Court 09C17071, Pamela L. Abernethy, Judge.
William D. Stark argued the cause and filed the briefs for appellant.
Dennis S. Reese argued the cause and filed the brief for respondent.
Before Armstrong, Presiding Judge, and Haselton, Chief Judge, and Duncan, Judge.
ARMSTRONG, P. J.
Plaintiff appeals a judgment for defendant on plaintiff's disability-discrimination claim, assigning error to an order that granted summary judgment to defendant and an order that denied a motion for a stay. We conclude that the trial court erred in granting summary judgment, which renders the assignment on the stay moot. Accordingly, we reverse the judgment and remand.
On review of an order granting summary judgment, we state the facts in the light most favorable to the nonmoving party, in this case, plaintiff. ORCP 47 C; Milne v. Milne Construction Co., 207 Or.App. 382, 384, 142 P.3d 475, rev den, 342 Or 253 (2006).
Plaintiff applied for a commercial truck driver position with defendant, a motor carrier. At the orientation for the job, plaintiff underwent a physical examination to determine whether he was qualified under federal Department of Transportation (DOT) regulations to operate a commercial motor vehicle. At the time of the examination, plaintiff already had a medical certificate indicating that he satisfied DOT requirements.
The results of the examination were sent to defendant's physician, who concluded that plaintiff was not qualified to operate a commercial motor vehicle because he had a defibrillator in his chest and had been diagnosed with a medical condition that placed him at risk of sudden cardiac death. One of defendant's employees told plaintiff that, if he had the defibrillator removed and obtained a medical release after the procedure, defendant would hire him.
Plaintiff had the defibrillator removed, and his physician wrote defendant a letter stating that plaintiff had no conditions that would affect his employment as a truck driver. Plaintiff again sought employment with defendant. At the request of defendant's physician, plaintiff sent his medical records to defendant. After reviewing plaintiff's medical records and the report of plaintiff's physician, defendant's physician again determined that plaintiff was not medically qualified to operate a commercial motor vehicle, specifically noting that, even without the defibrillator, plaintiff continued to have a diagnosis of a medical condition that placed him at risk of sudden cardiac death. As a result, defendant chose not to hire plaintiff.
Plaintiff thereafter filed an action that alleged a disability-discrimination claim against defendant under Oregon law, contending that he "was able and was medically certified to do any truck driving job for [defendant] without any accommodation" and that a "substantial factor in the decision to deny plaintiff employment was because of his health history and/or the erroneous perception that plaintiff had a disability."
Defendant moved for summary judgment on plaintiff's disability-discrimination claim on the ground that, before filing his action, plaintiff was required to exhaust his administrative remedies by applying to the DOT to resolve the conflict between plaintiff's and defendant's physicians about whether plaintiff met DOT requirements to operate a commercial motor vehicle. Defendant contended that "Congress has given the DOT the sole discretion to set driver qualifications" and "the question of plaintiff's physical qualification [is] within the sole province of the DOT." Plaintiff responded that the determination whether he was physically qualified to drive was not subject to DOT resolution because defendant's physician had not performed a valid DOT medical examination and, consequently, had not triggered a duty by plaintiff to apply to the DOT to resolve whether he was qualified to operate a commercial motor vehicle.
The court granted defendant's motion for summary judgment, concluding that plaintiff "must first exhaust his administrative remedies before suing an employer based on his [DOT] qualifications" and that, "if plaintiff cannot [prove] in state court that he was qualified at the time [of the employment decision]--as defined and determined by the [DOT]--then he is not in a position ...