Brunelle v. Norfolk Southern Railway Co., No. 2:2018cv00290 - Document 21 (E.D. Va. 2018)
Court Description: MEMORANDUM OPINION AND ORDER denying 13 Norfolk Southern's Motion to Dismiss. Given the denial of the Motion to Dismiss, and that it was unnecessary to consider Exhibit A to Norfolk Southern's Reply in rendering this decision, Plaintiff's Objection to Exhibit A is DIMISSED as moot. Signed by Chief District Judge Rebecca Beach Smith and filed on 9/28/18. (tbro)
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Brunelle v. Norfolk Southern Railway Co. Doc. 21 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division ROBERT BRUNELLE, Plaintiff, CIVIL ACTION NO. 2:18cv290 V. NORFOLK SOUTHERN RAILWAY CO., Defendant. MEMORANDUM OPINION and ORDER This Motion to matter comes Dismiss, before ECF No. the 13, court and on the Defendant's accompanying Brief in Support, ECF No. 14, filed on August 8, 2018. The matter has now been fully briefed and is ripe for review. For the reasons below, the Defendant's Motion to Dismiss is DENIED. I. FACTUAL AND PROCEDURAL HISTORY Defendant Norfolk Southern Railway Southern") employs Plaintiff Robert Brunelle Brandt Truck Brunelle's Operator. work Am. includes Compl. 5 commercial 3, Co. (^^Brunelle") as a ECF truck {^^Norfolk No. driving, 10. Because the United States Department of Transportation ("DOT") requires Brunelle to comply with commercial promulgates these subagency, the driving regulations. commercial driving Federal Motor Id. regulations Carrier Safety SI 8. through DOT their Administration ("FMCSA"). FMCSA regulations require Brunelle to undergo routine Dockets.Justia.com medical examinations to be certified as physically fit to operate a commercial vehicle. Id. f 10. A medical professional examined Brunelle on July 14, 2017, and diagnosed him with chronic inflammatory demyelinating polyneuropathy and diabetes. Id. f 15. Despite this diagnosis, Brunelle alleges Transportation Examiner that physical Certicates he ''passed examinations . . . Id. SI all and Department received 13. When his Norfolk of Medical Southern learned of Brunelle's diagnosis, however, they removed him from his work and ordered him to provide Norfolk Southern's medical department with his complete medical records. Id. SI 17. Brunelle complied with these requests. Id. SI 18. He alleges that "[a]t no time did Norfolk Southern's medical department or anyone on its behalf . . . issue Transportation a to medical Brunelle or opinion that to the Department Brunelle was of medically unqualified pursuant to Department of Transportation regulations to hold and maintain any required licenses for a Brandt Truck Operator." Id. Brunelle was removal, and SI 14. Despite not reinstated to Norfolk Southern no negative work until has not six paid medical months him opinion, after for the his six months during which he was laid off. Id. SI 21. Brunelle filed his Complaint in this court on May 30, 2018, and filed violations an of Amended the Complaint Americans on with August 8, 2018. Disabilities Act He alleges ("ADA") for his removal and six-month layoff, and demands several remedies from this court, namely that: he be reinstated; his employee record be expunged of misconduct pursuant to this incident; and he be awarded compensatory and punitive damages. Id. SI 32. Norfolk Southern responded to Brunelle's Amended Complaint by filing the instant Motion to Dismiss, alleging two grounds for dismissal: (1) the court lacks subject matter jurisdiction because Brunelle failed to exhaust FMCSA administrative remedies prior to filing suit; alleged that he and (2) Brunelle has is physically qualified to not sufficiently drive for Norfolk Southern, and thus he is not a ''qualified individual" as defined by the ADA. The Court DENIES Norfolk Southern's Motion to Dismiss because the facts in Brunelle's Amended Complaint, viewed in the light most favorable to Brunelle, sufficiently allege that FMCSA administrative remedies were inadequate and that Brunelle was physically qualified to drive a commercial vehicle. II. LEGAL STANDARD A the motion court's to dismiss subject pursuant to matter Rule jurisdiction 12(b)(1) over a challenges case. Fed. R. Civ. P. 12(b)(1). A defendant may challenge the court's subject matter jurisdiction in one of two ways: (1) the defendant may raise a "facial challenge" by arguing that the facts alleged in a complaint are not sufficient to confer subject matter jurisdiction actual on the court challenge" or by (2) the arguing defendant that the may raise a jurisdictional allegations made in the complaint are not true. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In a facial challenge, the court evaluates the facts in a complaint using the same standard used for a Rule 12(b)(6) motion to dismiss. See id. Specifically, all alleged facts are taken as true and the motion must be denied if the complaint alleges facts that, if proven, would be sufficient to sustain jurisdiction. See id. In a factual allegations determine challenge, of if the a trial complaint there are court and facts to in may an """go beyond evidentiary support the the hearing jurisdictional allegations." Id. In this case, Norfolk Southern's Motion to Dismiss, ECF No. 13, and its accompanying Brief in Support, ECF No. 14, rely primarily Complaint. Southern on the See Def.'s facts Br. alleged Supp. at in Brunelle's Amended 2-5. Moreover, Norfolk affirmatively waived oral hearing on this Motion and submitted its Motion to the Court for ruling without a hearing. ECF No. 19. Because Court has Norfolk no there will opportunity Southern may wish to to be no evidentiary consider raise. any hearing, factual the disputes Thus, the Court concludes that Norfolk Southern has raised a facial challenge to subject matter jurisdiction and, accordingly, will accept as true all facts alleged in Brunelle's Amended Complaint for the purposes of determining whether the court has subject matter jurisdiction over this claim. Norfolk Southern also raises a claim for dismissal pursuant to Rule 12(b)(6), which states that a complaint must be dismissed when a plaintiff s allegations fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). ""To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ^state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To evaluate a Rule 12(b)(6) motion, the court accepts facts alleged in the complaint as true and views those facts in the Venkatraman v. light REI most Sys., favorable Inc., 417 to F.3d the plaintiff. 418, 420 (4th See Cir. 2005). III. ANALYSIS A. Rule 12(b)(1) Motion to Dimiss Norfolk matter Southern jurisdiction argues because that this Brunelle Court failed lacks to subject exhaust his administrative remedies prior to filing suit. FMCSA regulations provide a dispute-resolution procedure for employers and employees to go through when two different medical professionals have reached opposite conclusions about an employee's physical fitness. See 49 C.F.R. § 391.47. Norfolk Southern contends that Brunelle was required to pursue this FMCSA remedy before filing the instant suit. It is a ^^long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been Co.f exhausted." Cavalier 303 F.3d Bethlehem Exhaustion 316, 322 Shipbldq. is not Tel., LLC (4th Cir. Corp., 303 required, v. Virginia Elec. 2002) U.S. however, administrative remedy is ^^inappropriate" or (quoting 41, 50-51 where the & Power Myers v. (1938)). available inadequate." Greene V. United States, 376 U.S. 149, 163 (1964). An administrative remedy is inadequate" when there is ^^some doubt as to whether the agency [is] empowered to grant effective relief." Gibson v. Berryhill, 411 U.S. 564, 575, n. 14. In this case, FMCSA dispute resolution is not an adequate administrative remedy. As an initial matter, Brunelle is ineligible to receive FMCSA dispute resolution because he cannot produce conflicting medical opinions regarding his physical fitness. Applications made to FMCSA for dispute resolution ''will only be accepted if they conform to the requirements of [§ 391.47]." 49 C.F.R. § 391.47(a). One such requirement is that "[t]he applicant must submit proof that there is a disagreement between the physician for the driver and the physician for the motor carrier concerning the driver's qualifications." 49 C.F.R. § 391.47(b)(2). Based on the facts in Brunelle's Amended Complaint, which the court challenge accepts to as subject true for matter produce such proof. Brunelle the purposes jursidciton, of this Brunelle facial could not alleges that 'Ma]t no time did Norfolk Southern's medical department or anyone on its behalf . . issue to Brunelle or to the Department of Transportation a medical opinion that Brunelle was medically unqualified pursuant to Department of Transportation regulations Am. Compl. SI 14. Without a negative medical opinion from Norfolk Southern regarding Brunelle's physical qualification, Brunelle has no ''proof" that there was a disagreement between physicians regarding his physical qualifications. See 49 C.F.R. § 391.47(b)(2). Instead, Brunelle received only positive medical opinions of his physical fitness. See Am. Compl. SI 13 (Brunelle "passed all Department of Transportation physical examinations and received Because his Norfolk Medical Southern Examiner's never Certificates raised a . conflicting . . .") medical opinion, there is no difference of opinion for FMCSA to review and resolve. See Lisotto v. New Prime, Inc., 647 F. App'x 259, 264 (4th Cir. 2016) (per curiam) (FMCSA review under § 391.47 is not available unless there are conflicting medical opinions). Further, it is not clear that FMCSA review Brunelle an adequate remedy for his alleged would provide injury. In his Amended Complaint, Brunelle demanded that he be reinstated, that his employee record be expunged of misconduct, and that he be awarded compensatory and punitive damages. Am. Compl. SI 32. FMCSA review is merely a process for resolving disputes between medical examiners about a driver's physical qualifications. Nothing in § 391.47 empowers the FMCSA to reinstate Brunelle or to grant any of the other remedies Brunelle demands from this Court. See 49 C.F.R. § 391.47. Because the remedy available through FMCSA review is inadequate to afford Brunelle the relief sought from this Court, his suit cannot be dismissed for failure to exhaust his administrative remedies. See Hill v. Houff Transfer, Inc., No. 3:12cv357, 2012 WL 5194080, at *5 (E.D. Va. Oct. 19, 2012) (motion to dismiss plaintiff's ADA claim pursuant to Rule FMCSA 12(b)(1) review denied even prior to though filing suit plaintiff because had not sought plaintiff sought ^^remedies only available through the ADA—not remedies available under the DOT review procedure.") Accordingly, dismissal pursuant to Rule 12(b)(1) would not be proper. B. Rule 12(b)(6) Motion to Dismiss Norfolk Southern contends that dismissal is proper on the alternative grounds of Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Norfolk Southern argues 8 that, because Brunelle did not pursue the FMCSA dispute-resolution procedures of 49 C.F.R. § 391.47, there is no binding determination of whether Brunelle is physically capable of driving for Norfolk Southern, and Brunelle therefore cannot sufficiently required allege to that plead he a is a prima ''qualified facie individual" case as of disability of disability discrimination under the ADA. To establish a prima facie case discrimination under the ADA, a plaintiff must prove that (1) he has a disability, (2) he is a "qualified individual," and (3) his employer took an adverse employment action against him because of his disability. See Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997). Under the ADA, a "qualified individual" is accommodation, a can person who, perform "with the or without essential reasonable functions of the employment position that such 'individual holds or desires." 42 U.S.C. § 12111(8) qualification" of (2012). drivers FMCSA with regulations passage of equate all "physical FMCSA-required medical exams. 49 C.F.R. § 391.47(g). The question of whether a driver is therefore required a turn "qualified on medical individual" whether exams. See the driver Myers v. under has J.B. the passed Hunt ADA all Tranp., should FMCSAInc., No. I:05cv717, 2006 WL 3479001, at *3 (M.D.N.C. Nov. 30, 2006). Accordingly, where a plaintiff can sufficiently allege that he or she has passed all FMCSA-required medical exams, the plaintiff's failure to pursue dispute resolution under 49 C.F.R. § 391.47 cannot be the basis of a Rule 12(b)(6) motion to dismiss. See Hill, No. 3:12cv357, 2012 WL 5194080, at *5. In this case, Brunelle alleges that he ""passed all Department of Transportation physical examinations and received his Medical Examiner's Certificates . . . ."Am. Compl. SI 13. He also alleges complete that Norfolk medical records Southern to ordered Norfolk him to give Southern's his medical department, that he complied with this order, and that he was reinstated to work Norfolk Southern medical exam, months later. Am. Compl. SIS! 17-21. argues that its request to review Brunelle's records and six was equivalent that this failed to Brunelle medical exam failing creates a medical uncertainty about Brunelle's physical fitness. However, Norfolk Southern's mere request to review Brunelle's medical records, viewed in the light most favorable to nonmoving does not constitute differentiate that a party, between medical driver's (standard exam medical for Brunelle, for a failed medical failed medical exam a should records. failing a this remain Compare medical Rule exam. open 49 12(b)(6) FMCSA and a exam) regulations determination pending C.F.R. motion, review of a § 391.43(g)(3) with 49 C.F.R. § 391.43(g)(4) (procedures for delaying final determination in a 10 driver's medical exam pending receipt of the driver's medical records). If Norfolk Southern's request for Brunelle's medical records then was a ^'medical exam" as defined by FMCSA regulations, it remained Brunelle's medical ongoing records while and Norfolk deferred Southern issuing an reviewed opinion on his physical qualification. Moreover, Norfolk Southern reinstated Brunelle to work at the end of his six-month layoff. Am. Compl. ^ 21. Viewing this fact in the light most favorable to the nonmoving party, Norfolk Southern put Brunelle back to work because Norfolk Southern's medical department concluded that Brunelle was physically qualified to drive. See 49 C.F.R. § 391.11 (''[A] motor carrier shall not . . . permit a person to drive a commercial motor vehicle unless that person is qualified to drive"). There are no facts in Brunelle's Amended Complaint from which the court can conclude that Brunelle failed Norfolk Southern's medical exam. Thus, Brunelle according passed all adjudged ''physically to the medical facts exams qualified" by in the and, all Amended therefore, medical Complaint, has examiners been who have examined him. See 49 C.F.R. § 391.43(g)(2)(i). These facts sufficiently allege that Brunelle is a "qualified individual" as is required to maintain a prima facie case under the ADA. See Myers, No. I:05cv717, 2006 WL 3479001, at *3. Accordingly, dismissal pursuant to Rule 12(b)(6) would not proper. 11 IV. CONCLUSION For the reasons set forth above, Norfolk Southern's Motion to Dismiss is DENIED.^ copy of this The Memorandum court DIRECTS the Opinion and Order Clerk to forward to counsel for a all parties. IT IS SO OIUDERED. Is/ Rebecca Beach Smith -m- Chief Judge REBECCA BEACH SMITH CHIEF JUDGE September jLClr 2018 ^ On September 12, 2018, Plaintiff's Objection to Exhibit A to Norfolk Southern's Reply in Response to Plaintiff's Opposition to Norfolk Southern's Motion to Dismiss (^^Objection"), was filed. EOF No. 20. Given the denial of the Motion to Dismiss, and that it was unnecessary to consider Exhibit A to Norfolk Southern's Reply in rendering this decision. Plaintiff's Objection is DIMISSED as moot. 12
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