Zei v. Maryland Transit Administration

ADKINS, J. In this case, we are asked to determine whether the State of Maryland complied with the Americans with Disabilities Act (“ADA”) when it adopted and applied a federally-created safety regulation governing the physical qualifications of drivers of commercial motor vehicles. Specifically, the United States Department of Transportation (“DOT”) has determined that an individual is not qualified to drive a commercial motor vehicle if that individual currently suffers from certain cardiovascular diseases. The State of Maryland followed the lead of the federal government and adopted the same standard for bus operators employed by the Maryland Transit Administration (“MTA”). We are tasked with determining whether MTA violated the ADA by firing Anthony Zei, a bus operator who failed to meet this standard.

FACTS AND PROCEDURAL HISTORY Under the collective bargaining agreement between the MTA and Zei’s labor union — the Amalgamated Transit Union, Local 1300 — every bus driver must obtain a medical certification verifying that he is physically fit to operate a bus. This certification must be renewed every two years. If the Union disagrees with the findings of the medical certification, the Union may select a doctor of its choice to perform a second evaluation. If the original doctor and the Union’s doctor cannot reach a consensus on the certification of the driver, then both doctors will “jointly select a third doctor to review the case” and this third doctor’s “decision shall be final and binding on both parties.” Zei began his employment as a bus driver for the MTA in 1991.

By all accounts, Zei was “a very good bus driver.” On December 3, 2004, Zei underwent a “workability evaluation” performed by Dr. Hench for the purpose of obtaining his necessary medical certification to operate a bus. During the ²⁵⁷ evaluation, Dr. Hench discovered that Zei had previously been diagnosed with dilated cardiomyopathy, and that Zei had “been symptomatic over the past year with shortness of breath and fatigue.” Dr. Hench reported that Zei’s cardiomyopathy disqualified him from the position of bus driver “based upon the Medical Guidelines of the Federal Motor Carrier Safety Administration ... because of his increased risk of sudden death.” In January 2005, Zei consulted his own cardiologist, Dr. Gottlieb, who had been treating him since 2003. Dr. Gottlieb instructed Zei to undergo a radiology study. Based upon the results of that study, Dr. Gottlieb concluded that Zei did not have “symptomatic heart failure” and that “Zei has medical clearance to return to work with no restrictions.” Dr. Gottlieb and Dr. Hench could not come to an agreement, however, and the two doctors agreed to refer the case to a third doctor — Dr. Hartenbaum — whose determination would become final.

Dr. Hartenbaum “determined that Zei was not qualified to drive under the ‘medical criteria’ set forth in the Cardiovascular Guidelines.” As a result, on September 1, 2005, the MTA discharged Zei from its employment. In December 2005, Zei brought this action in the Circuit Court for Baltimore City alleging that the MTA had violated his rights under 29 U.S.C. § 504—commonly known as the Rehabilitation Act. The case went to trial, and a jury found the MTA guilty of discrimination and awarded Zei $200,000. In an unreported opinion, the Court of Special Appeals reversed, holding that Zei’s failure to satisfy the federally-created qualification standard for drivers of commercial motor vehicles rendered him unqualified for the position of MTA bus driver as a matter of law.

On September 21, 2012, this Court granted a writ of certiorari, Zei v. Maryland Transit Administration, 428 Md. 543 , 52 A.3d 978 (2012), to answer the following question: Did the Court of Special Appeals err by holding that Zei’s inability, because of a heart condition, to meet the DOT standards (which the MTA applies voluntarily rather than ²⁵⁸ under compulsion of federal law), render him unqualified as a matter of law for an MTA bus operator position? We shall hold that the MTA’s use of the federal regulation was a properly imposed “qualification standard” under the ADA, and therefore, Zei cannot succeed on his ADA claim. 1 DISCUSSION In 1990, Congress passed the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101 (b)(1) (2006). In relevant part, the Act provided that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees, ... and other terms, conditions, and privileges of employment.” Id. § 12112(a), amended by 42 U.S.C. § 12112 (a) (Supp. II 2008). “To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate (1) that [he] is disabled within the meaning of the ADA; (2) that [he] is qualified with or without reasonable accommodation; and (3) that [he] was discriminated against because of [his] disability.” Tate v. Farmland Indus., Inc., 268 F.3d 989, 992 (10th Cir.2001) (alterations in original) (citation and quotation marks omitted). At issue in this appeal, is the second prong— whether Zei was a qualified individual.

The ADA defined a “qualified individual” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment ²⁵⁹ position that such individual holds or desires.” 42 U.S.C. § 12111 (8), amended by 42 U.S.C. § 12111 (8) (Supp. II 2008). To determine whether an individual is qualified for the position, the ADA allows an employer to impose “qualification standards ... that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability,” so long as the standards are “shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation. ...” 42 U.S.C. § 12113 (a); see also Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 568 , 119 S.Ct. 2162, 2170 , 144 L.Ed.2d 518 (1999). Thus, if an individual fails to meet a properly imposed qualification standard, then that individual is not a “qualified individual” for purposes of the ADA and cannot maintain a discrimination claim. Tate, 268 F.3d at 993 .

In this case, the MTA applied a federally-created job qualification standard contained in the Federal Motor Carrier Safety Regulations (“FMCSRs”), which set forth the physical qualifications for drivers of commercial motor vehicles. Specifically, the FMCSRs contain a regulation governing the qualification of drivers suffering from cardiovascular disease, stating: “A person is physically qualified to drive a commercial motor vehicle if that person ... [h]as no current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure.” 49 C.F.R. § 391.41 (b)(4); see also 35 Fed.Reg. 6458, 6463 (Apr. 22, 1970) (as amended by 35 Fed.Reg. 17418, 17420 (Nov. 13, 1970)). It is this qualification standard which the MTA applied, and Zei failed to meet. In examining whether the MTA properly applied this qualification standard, we must resolve how the federally-created qualification standard of drivers suffering from cardiovascular disease interacts with the ADA, which allows employers to use qualification standards only if they are “shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation....” 42 U.S.C. § 12113 (a).

This inquiry, therefore, is ²⁶⁰ three-fold. First, are the requirements of 49 C.F.R. § 391.41 (b)(4) “job-related” and of “business necessity?” Second, does the exemption of state governments from complying with the FMCSRs, found in 49 C.F.R. § 390.3 (f)(2), but followed by the State’s voluntary adoption of the same standard, change the answer to the first question? Third, could the MTA have adopted a reasonable accommodation? FMCSRs as “Job-Related” and “Business Necessity” Fundamentally, the parties disagree over whether the ADA’s requirements of being “job-related” and of “business necessity” must be shown in an individualized assessment of Zei, or whether Zei’s heart condition, per se, renders him unqualified.

Central to this debate are two additional regulations: (1) 29 C.F.R. § 1630.15 (e) — enacted by the Equal Employment Opportunity Commission — which provides a complete defense to an ADA claim: “It may be a defense to a charge of discrimination under [the ADA] that a challenged action is required or necessitated by another Federal law or regulation;” 2 and (2) 49 C.F.R. § 390.3 (f)(2) — enacted by the Federal Highway Administration (“FHA”) — which exempts state transportation agencies from complying with the FMCSRs: “the [FMCSRs] do not apply to ... Transportation performed by the Federal government, a State, or any political subdivision of a State, or an agency established under a compact between States that has been approved by the Congress of the United States.” Zei acknowledges that, in light of the defense in 29 C.F.R. § 1630.15 (e), if the FMCSRs apply to the State, then the MTA will have a full defense against any discrimination action under the ADA as a matter of law. See, e.g., Albertson’s, 527 U.S. at 570 , 119 S.Ct. at 2171 (holding that an employer has not violated the ADA if they have an “unconditional obligation to follow the [FMCSRs]”). Yet, Zei argues, the FMCSRs do not ²⁶¹ apply in this case because the State is not required by federal law to follow them, but rather voluntarily adopted the standards found in the regulations.

Zei contends that the complete defense found in 29 C.F.R. § 1630.15 (e) was created “solely on the need to relieve employers of the burden of complying with conflicting federal laws.” To support this assertion, Zei relies on the legislative history of the ADA which reflects congressional recognition “that a person with a disability applying for or currently holding a job subject to [FMCSRs] must be able to satisfy any physical qualification standard that is job related and consistent with business necessity in order to be considered a qualified individual with a disability under title I of this legislation.” H.R.Rep. No. 101-485, pt. 2, at 57 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 339. Nevertheless, Zei argues, Congress questioned whether the FMCSRs were consistent with the ADA and therefore instructed that “the Secretary of Transportation will undertake a thorough review of [the FMCSRs] to ascertain whether the standards conform with current knowledge about the capabilities of persons with disabilities” and to “make any necessary changes within the two year period to bring such regulations into compliance with the law.” Id. Thus, Zei concludes: “An employer who has voluntarily adopted the DOT Standards does not face the conflicting federal obligations which serve as the sole justification for deeming the DOT Standards a complete defense in the mandatory-adoption scenario....

Congress certainly did not envision that courts would ‘limit application of the ADA as a matter of law’ when there was no need to do so.” In Zei’s opinion, when an employer voluntarily adopts the regulations, the FMCSRs “are merely a factor for a jury to consider in determining whether an ADA violation has occurred.” See Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir.2007); Cleary v. Fed. Express Corp., 313 F.Supp.2d 930 (E.D.Wis.2004); Millage v. City of Sioux City, 258 F.Supp.2d 976 (N.D.Iowa 2003); Tinjum v. Atl. Richfield Co., 109 Wash.App. 203 , 34 P.3d 855 (2001). Therefore, argues Zei, MTA is required to conduct an individualized assessment ²⁶² to determine whether the FMCSRs are “job-related” and of “business necessity” as applied to Zei. See Atkins v. Salazar, 677 F.3d 667, 683 (5th Cir.2011).

To the contrary, MTA argues that the FMCSRs constitute qualification standards that as a matter of law satisfy the “job-related” and “business necessity” requirements of the ADA. See Tate, 268 F.3d 989 ; Bay v. Cassens Transp. Co., 212 F.3d 969 (7th Cir.2000); Prado v. Cont’l Air Transp. Co., 982 F.Supp. 1304 (N.D.Ill.1997); Campbell v. Fed. Express Corp., 918 F.Supp. 912 (D.Md.1996).

MTA argues that these cases treat the “failure to satisfy the DOT safety regulations as a disqualification from employment as a matter of law,” and therefore, “Zei is ... mistaken in arguing that MTA was required to conduct an ‘individualized assessment’ to determine whether ... he could ‘safely perform the duties’ of an MTA bus driver.” Furthermore, relying on the history and purpose of the FMCSRs, MTA argues that it is irrelevant whether it was required by law to follow the regulations or whether it voluntarily adopted them. According to the MTA, the exemption of state governments from following the FMCSRs contained in 49 C.F.R. § 390.3 (f)(2) was based solely on federalism concerns — about the division of responsibilities between the federal and state governments — not a desire to relieve the states of safely conducting their transportation operations. Thus, MTA argues, the “reliance on federalism concerns in creating the state exemption, and encouragement of states to adopt the safety regulations, demonstrates that DOT did not intend to differentiate between vehicles operated by public and private motor carriers.” To resolve this debate, and determine whether the FMCSRs satisfy the “job-related” and “business necessity” requirements of the ADA as a matter of law, we will trace the development of the cardiovascular disease qualification standard contained in the FMCSRs and the legislative history of the ADA. Then, we will also examine the development of the state government exemption from the FMCSRs and Con ²⁶³ gress’s subsequent legislative enactments to determine whether MTA’s alleged “voluntary” adoption of the FMCSRs affects our holding.

Legislative History of the ADA and Cardiovascular Disease Standard The FMCSR setting forth the qualification of drivers suffering from cardiovascular disease — 49 C.F.R. § 391.41 (b)(4)— was originally enacted in 1970. At that time, the FHA deemed it necessary to completely revise the “qualifications of drivers of commercial motor vehicles engaged in interstate or foreign commerce.” 3 34 Fed.Reg. 9080, 9080 (June 7, 1969). Explaining its purpose in making the revision, the FHA explained that “[ajceident experience in recent years has demonstrated that ... the good health of drivers are increasingly important factors in accident prevention[, and therefore, it is] necessary that criteria for determining whether individuals are qualified to drive commercial motor vehicles be upgraded.” 4 Id. at 9081. Thus, the FHA sought to “substantially tighten the existing regulations by including guidelines for evaluation of persons in high-risk medical categories.” Id. ²⁶⁴ In creating these guidelines for “high-risk medical categories,” the FHA for the first time established qualifications for drivers of commercial motor vehicles who suffer from cardiovascular disease.

Specifically, the revised FMCSRs provided that a driver is not qualified if he has a “current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure.” 49 C.F.R. § 391.41 (b)(4); see also 35 Fed.Reg. at 6463 (as amended by 35 Fed.Reg. at 17420). When Congress subsequently enacted the ADA, it was well aware of the FMCSRs and its potential to disqualify individuals with disabilities. Yet, Congress did not abolish the FMCSRs. Instead, evident from examining the legislative history of the ADA, Congress viewed the FMCSRs as qualification standards that would satisfy the “job-related” and “business necessity” requirements of the ADA: With respect to covered entities subject to rules promulgated by the Department of Transportation regarding physical qualifications for drivers of certain classifications of motor vehicles, it is the Committee’s intent that a person with a disability applying for or currently holding a job subject to these standards must be able to satisfy any physical qualification standard that is job related and consistent with business necessity in order to be considered a qualified individual with a disability under title I of this legislation.

In light of this legislation, the Committee expects that within two years from the date of enactment (the effective date of title I of this legislation), the Secretary of Transportation will undertake a thorough review of these regulations to ascertain whether the standards conform with current knowledge about the capabilities of persons with disabilities and currently available technological aids and devices and whether such regulations are valid under this Act. The Committee expects that the agency will make any necessary changes within the two year period to bring ²⁶⁵ such regulations into compliance with the law. (Emphasis added). H.R.Rep.

No. 101-485, pt. 2, at 57 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 339. Indeed, because Congress fully understood that the FMCSRs would continue to exist as qualification standards under the ADA, Congress specifically instructed the Secretary of Transportation to perform a complete review of the FMCSRs and “bring such regulations into compliance with the law.” In other words, to resolve any potential conflict between the requirements of a qualification standard under the ADA and the existing FMCSRs, Congress required the Secretary of Transportation to make sure that all existing FMCSRs were “job-related” and of “business necessity.” By 1992, the FHA had completed an entire review of the FMCSRs “to identify and eliminate any unnecessary regulatory burdens.” 57 Fed.Reg. 37392, 37392 (Aug. 18, 1992). The FHA did not stop there. Taking a step further, the FHA determined it was necessary “to reconsider the underlying basis for all safety rules and to identify a performance-oriented regulatory structure that would enhance safety while minimizing the burdens placed on industry.” Id.

This review was “a comprehensive multi-year effort to re-create a body of safety rules and regulations that are (1) understandable, (2) enforceable, (3) capable of being implemented by industry, and above all, (4) consistent with highway safety.” 59 Fed.Reg. 1366, 1366 (Jan. 10, 1994). The review focused on “the basic question[ ] of ... what is essential to improve motor carrier safety” and sought to “eliminate requirements not needed to carry out the regulatory program.” Id. at 1367. In this process, the FHA specifically “reviewed the regulations in part 391” and decided to retain the cardiovascular disease qualification standard in 49 C.F.R. § 391.41 (b)(4). 5 ²⁶⁶ Our examination of the development of the FMCSRs and the ADA, tells us that both Congress and the Department of Transportation view the qualification standard of drivers suffering from cardiovascular disease as “job-related” and of “business necessity.” As we learned, the regulation was created out of a recognition that “the good health of drivers” was an important factor in reducing the number of accidents and that the FMCSRs needed to be “substantially tightened],” specifically regarding drivers “in high-risk medical categories.” 34 Fed.Reg. at 9081. The legislative history divulges that Congress was aware of this qualification standard when adopting the ADA and specifically instructed the Secretary of Transportation to review the regulation for its compliance with the requirements of the ADA — i.e. for being “job-related” and of “business necessity.” The Secretary of Transportation performed such a review, “eliminatpmg all] requirements not needed to carry out the regulatory program,” and decided to retain the cardiovascular disease standard. 59 Fed.Reg. at 1367.

Based on this careful, multi-step, review of the regulations by the DOT, we hold as a matter of law that 49 C.F.R. § 391.41 (b)(4) satisfies the “job-related” and “business necessity” requirements of the ADA. The Exemption of State-Run Transportation from the