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Smart v. Dekalb County

United States District Court, N.D. Georgia, Atlanta Division

January 5, 2018

JAMES ANTHONY SMART, JR., Plaintiff,
v.
DEKALB COUNTY, GEORGIA, Defendant.

          ORDER AND REPORT AND RECOMMENDATION

          JANET F. KING, UNITED STATES MACHSTHATE JUDGE

         Plaintiff James Smart commenced this civil action in March 2016 with the filing of his Complaint against Defendant DeKalb County, Georgia, asserting claim(s) for violations of the Americans with Disabilities Act of 1990 (“ADA”), as amended by the ADA Amendments of 2008 (“ADAAA”), 42 U.S.C. § 12101, et seq., and particularly Section 12117(a). [Doc. 1 - Complaint)]. On July 1, 2016, with Defendant's consent, Plaintiff amended his Complaint to include a claim for violation of Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 701, et seq., and particularly Section 794. [Doc. 13 - First Amended Complaint (“Am. Compl.”), Exhibit 1 - Defendant's Consent]. Both parties have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 on Plaintiff's claims based upon the pleadings, statement of material facts, exhibits, and discovery materials submitted to the Court. [Docs. 52, 66]. Also pending before the Court is Defendant's motion [Doc. 68] to strike portions of one of Plaintiff's exhibits filed in support of his motion [Doc. 52] for summary judgment.

         These matters, now ripe for disposition by the Court, are before the undersigned upon referral from the District Judge for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

         This civil action arises out of Plaintiff James Anthony Smart's claims of disability discrimination brought against his former employer, Defendant DeKalb County, Georgia, after being placed on refrain from duty status due to failing a physical specifically designed to recertify Plaintiff's commercial driver's license and establish Plaintiff's continued eligibility to drive commercial vehicles on the job. Plaintiff Smart alleges disability as a result of diagnoses of glaucoma and hypertension and contends that being refrained from duty as well as being precluded from returning to work and being denied reasonable accommodation for his disabilities constitute unlawful disability discrimination.

         Because the evidentiary challenges raised in Defendant's motion [Doc. 68] to strike potentially impact the facts properly before the Court in resolving the parties' cross motions for summary judgment, these evidentiary matters are taken up first.

         I. Evidentiary Matters

         A. Defendants' Challenge to [Post-Deposition] Supplemental Declaration of James Smart

         As a rule, the appropriate method for dealing with contested affidavits or declarations offered in support of or in opposition to a motion for summary judgment is “to consider a party's objections to affidavits [or declarations]” and to “disregard any improper testimony or evidence.” Gaylor v. Greenbriar of Dahlonega Shopping Center, Inc., 975 F.Supp.2d 1374, 1381!82 (N.D.Ga. 2013) (citation and internal quotation marks omitted). Rule 56(c)(4) of the Federal Rules of Civil Procedure provides:

An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

         Fed. R. Civ. P. 56(c)(4). “[P]ersonal knowledge can be established by showing that the witness was in a physical position to see, hear, or otherwise perceive the matters to which the testimony relates.” Johnson v. Scotty's, Inc., 119 F.Supp.2d 1276, 1281 (M.D. Fla. 2000) (citing Fed.R.Evid. 602). In applying Rule 56(c)(4), the Eleventh Circuit has “consistently held that conclusory allegations without specific supporting facts have no probative value.” Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (citation omitted).

         Defendants advance three arguments (or objections) to Plaintiff Smart's Supplemental Declaration. More specifically, Defendants assert that Plaintiff's Declaration is an improper attempt to circumvent Rule 30(c) of the Federal Rules of Civil Procedure, that Plaintiff's Declaration contradicts and seeks to make material changes to his deposition testimony, and that the date on the declaration, which is required under 28 U.S.C. § 1746, is illegible and, therefore, a nullity. [Doc. 72 at 3-4].

         Defendant first argues that Plaintiff's Declaration constitutes an improper attempt to circumvent Fed.R.Civ.P. 30(c), which provides for cross-examination of a deponent consistent with the Federal Rules of Evidence.[1] While Defendant's concern is legitimate, defense counsel will have an opportunity to cross-examine Plaintiff Smart should the case proceed to jury trial. See Fed.R.Evid. 611.

         The Court next considers alleged factual inconsistencies between Plaintiff's deposition testimony and his Declaration. This evidence is probative of whether Plaintiff can establish the threshold issue of disability. Here, the gist of Defendant's objection is that in his declaration Plaintiff Smart elaborates about the effects and progression of the symptoms of his glaucoma prior to his two corrective Selective Laser Trebeculoplasty (“SLT”) procedures which Defendant contends is contrary to Smart's deposition testimony that his glaucoma had not affected his ability to perform various activities. For instance, during his deposition, when asked about actual limitations related to his vision, Smart testified that he had no issues and was not limited in his driving, reading, watching television, doing chores, engaging in activities with his adult twins (age 21) or his seven year old daughter, or taking care of himself on a day-to-day basis when wearing his glasses. [Deposition of Plaintiff James Anthony Smart, Jr. (“Smart Dep.”) 103-08]. Similarly, when asked about limitations following his SLT procedures on both eyes, Smart confirmed that he is not limited with respect to driving, reading, watching TV, participating in activities with his child, or taking care of himself on a daily basis. [Smart Dep. 106-07]. Smart testified as follows:

Q: Since your surgery on your left and right eye, have you had any issues in carrying out your day-to-day activities because of -
A: No.
Q: No?
A: No.

[Smart Dep. 106-07].

         In his Supplemental Declaration, Smart discusses changes he noticed starting in 2014, including headaches that required him to lay down, dizzy spells, his eyes becoming watery and foggy, and increased dependency on eyeglasses, that resulted in a change in his medication and closer and more regular monitoring by his opthalmologist.[2] [Smart Decl. ¶¶ 1, 2, 5]. According to Smart, “[t]here was a short time frame before I had surgery and in between the two surgeries” that he was adversely affected by symptoms of glaucoma and his deposition testimony about the lack of limitation referred to the present and the period of time before his condition worsened in 2014. [Smart Decl. ¶ 6]. Smart declares that he advised the doctor at Caduceus that he was in between corrective procedures for glaucoma “but [the doctor] didn't care[.]” [Smart Decl. ¶ 2]. Smart represents that his glaucoma is no longer severe thanks to his medication and surgeries. [Smart Decl. ¶¶ 3, 7].

         The undersigned does not exclude (or recommend) that Plaintiff's Supplemental Declaration be deemed a “sham” declaration. “An affidavit [or declaration] may only be disregarded as a sham ‘when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact . . . [and that party attempts] thereafter [to] create such an issue with an affidavit [or declaration] that merely contradicts, without explanation, previously given clear testimony.'” Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986) (quoting Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 658 (11th Cir. 1984)); and see Kingsley v. Tellworks Communications, LLC, 2017 WL 2624555, at **11-14 (N.D.Ga. May 24, 2017), report and recommendation adopted by 2017 WL 2619226 (N.D.Ga. June 15, 2017) (discussing application of Rule 56(c)(4) and the “sham affidavit” rule).

         In response to Defendant's motion to strike, Smart represents that his deposition testimony at 106:7-20 is only addressing the period prior to his first eye surgery on March 2, 2015; that between 106:20-107:20, he is only addressing the period after his second eye surgery on April 27, 2015; and that he did not offer any deposition testimony about his vision for the period in between the two surgeries. [Smart Decl. ¶ 4]. Smart's clarification is consistent with the questions of counsel that first asks about the period “[p]rior to your surgery” and then “[s]ince your surgery on your left and right eye[.]” [Smart Dep. 106-107].

         The Court finds that the Smart Declaration is not directly contradictory to Plaintiff's prior testimony. See Kingsley, 2017 WL 2624555, at *14 (declining to exclude post-deposition declaration based upon discrepancies and stating that “while [the witness's] selective memory may contribute to an issue of fact for a jury to resolve, it is not the sort of direct contradiction that justifies the extreme remedy of exclusion”). The Eleventh Circuit has cautioned that:

[E]very discrepancy contained in an affidavit does not justify a district court's refusal to give credence to such evidence. . . . In light of the jury's role in resolving questions of credibility, a district court should not reject the content of an affidavit even if it is at odds with statements made in an early deposition.

Tippens, 805 F.2d at 954 (quoting Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980)) (internal quotation marks omitted).[3] For these reasons, the Court overrules Defendant's objection to Smart's Supplemental Declaration and request that it be excluded.

         Finally, Defendant's contention that the Plaintiff's declaration should be disregarded because the date is illegible is summarily dismissed. See 28 U.S.C. § 1746. The image of Plaintiff's signature is apparently shown via a screen shot of a computer screen and the date appears to the undersigned to be “6/25/16” but the year is admittedly unclear. [Doc. 71-2 at 5]. Defendant argues that the date is a nullity because if the year is supposed to reflect 2017, the June 25 date is after Plaintiff's response was filed and that if the year is supposed to be 2016, it is before the date of Plaintiff Smart's deposition. [Doc. 72 at 4]. However, the Court is not inclined to recommend striking the declaration for this reason given the certainty that Plaintiff will offer live testimony at trial should the case survive summary judgment.

         Accordingly, Defendant's motion to strike or objection to Plaintiff's Supplemental Declaration is DENIED.

         B. Defendant's Motion to Strike [Objection to] Portions of Dr. Henderson's Affidavit

         Defendant contends that the affidavit of Polly A. Henderson, M.D. (“Dr. Henderson”), Plaintiff's Kaiser Permanente (“Kaiser”) Opthalmologist, submitted by Plaintiff in support of his summary judgment motion, must be limited to lay testimony because the testimony constitutes undisclosed expert testimony in violation of Federal Rules of Evidence 701 and 702.[4] [Doc. 68]. Defendant argues that Plaintiff did not identify Dr. Henderson as an expert witness during discovery as required by Federal Rule of Civil Procedure 26(a)(2) or Local Rule N.D.Ga., 26.2C, and therefore her opinion testimony contained within Paragraphs 6-8 of the affidavit should be deemed inadmissible.[5] [Doc. 68 at 2-3].

         Dr. Henderson provides evidence in support of Plaintiff Smart's claim that he is substantially limited in his vision (i.e., the major life activity of seeing) in that he has a limited range of vision as well as damage to his optic nerve. [Doc. 72 at 4-5]. The challenged portions of Paragraphs 6-8 read:

• When I wrote “limited range of vision” I meant that his range of vision was limited in comparison to an average person with normal healthy vision. Using somewhat different wording, it was also true that Mr. Smart had a “‘limited range of vision' as compared to most people in the general population.”
• This limitation on Mr. Smart's range of vision and damage to his optic nerve in March 2015 was substantial, as compared to a normal healthy eye and as compared to an average person in the general population, and required medical treatment.
• It is this damage to the optic nerve (and related tissue) that causes the loss of Mr. Smart's range or field of vision. This damage to Mr. Smart's optic nerve was substantial as compared to most people in the general population. This substantial damage to his optic nerve was present in March 2015.

[Henderson Aff. ¶¶ 6-8].[6]

         Dr. Henderson was the treating opthalmologist during the relevant time period and twice performed laser eye surgery on Plaintiff Smart, first on March 2, 2015, and again on April 27, 2015. [Doc. 52-5, Exhibit 4 at 166-74 & 225-29; Henderson Aff. ¶ 5]. In the absence of expert disclosure, Dr. Henderson is able to competently testify under Rules 701 and 702, as to any lay opinion, namely, her opinions “rationally based on [her] perception” of Smart's impairment and “helpful to clearly understanding [her] testimony or to determining a fact in issue . . . .” See Fed.R.Evid. 701(a) and (b). Rule 701 only precludes opinion testimony “based on scientific, technical or other specialized knowledge within the scope of Rule 702[.]” Fed.R.Evid. 701(c). The characterization of the nature of the challenged evidence as expert or lay opinion is determinative. See Tischon Corp. v. Soundview Commc'ns, Inc., 2005 WL 6038743, at **9-12 (N.D.Ga. February 15, 2005) (evaluating likely admissibility of untimely proposed witnesses' testimony in light of undisclosed expert challenge and applying Rule 26(a)(2) and L.R. N.D.Ga. 26.2C). Dr. Henderson's comparisons between Smart's optic nerve damage and limited range of vision and the general population require specialized knowledge and would qualify as expert opinion testimony. For this reason, these portions of Dr. Henderson's affidavit arguably should not be considered in determining the parties' summary judgment motions.

         Plaintiff suggests that even without Dr. Henderson's affidavit, medical records reveal Plaintiff's diagnosis of severe glaucoma and indications of nerve damage. [Doc. 52-1 at 3 (citing Exhibit 4 at 64, 86)]. However, as discussed in detail infra, because the undersigned finds that Plaintiff presents sufficient evidence that Defendant DeKalb regarded him as disabled, the other two avenues of demonstrating disability are of less import and Dr. Henderson's affidavit does not create a genuine issue of material fact or otherwise sway the Court on any other issue, including actual disability.

         For the reasons stated, Defendant's Motion [Doc. 68] to Strike is DENIED.

         II. Factual Background[7]

         When evaluating the merits of a motion for summary judgment, the court must “view the evidence and all factual inferences raised by it in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-moving party.” Comer v. City of Palm Bay, Florida, 265 F.3d 1186, 1192 (11thCir. 2001). However, mere conclusions and unsupported self-serving statements by the party opposing summary judgment are insufficient to avoid summary judgment. See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). In accordance with the foregoing principles, the following facts are deemed to be true for the limited purpose of evaluating the parties' cross motions for summary judgment.

         Plaintiff James Anthony Smart, Jr. (“Smart”), is an African American male born on February 29, 1972. [Smart Dep. 8-9]. Smart began working for DeKalb County Roads and Drainage (“Roads and Drainage”) in June of 1995 as a Crew Worker and was subsequently promoted in March 2000 to Equipment Operator, then promoted in June 2001 to Equipment Operator Senior, and promoted in December 2004 to Crew Supervisor CDL. [Smart Dep. 131-34, Def. Exhibit 4 at 2-3].

         On February 24, 2006, Smart submitted an application for a promotion to the position of Construction Supervisor with Roads and Drainage on the mill paving crew. [Smart Dep. 20-22, Def. Exhibit 4]. The application for the Construction Supervisor position asked the question, “Do you have a commercial driver's license?” [Smart Dep. 23, Def. Exhibit 4 at 2]. Smart answered “Yes” on his application and provided the following information about his commercial driver's license: (a) it was issued in the State of Georgia, (b) it was a Class A commercial driver's license (“CDL”), (c) the license number was 034-48-6824, and (d) his CDL expired on March 31, 2016. [Smart Dep. 23, Def. Exhibit 4 at 2].

         With the exception of Crew Worker positions, all DeKalb County positions in Roads and Drainage require a CDL license and the applications ask whether the applicant has a valid CDL license. [Smart Dep. 24]. All Roads and Drainage employees above a Crew Worker position are required to perform some CDL work. [Smart Dep. 24].

         Plaintiff was offered and accepted the position of Construction Supervisor and assumed that role in June 2006. [Smart Dep. 25-26]. In conjunction with his job as a Construction Supervisor, Roads and Drainage would intermittently require Plaintiff to submit to an alcohol or drug test. [Smart Dep. 32-36, Def. Exhibits 10-13]. Approximately once every one to two years, Roads and Drainage would require that Plaintiff undergo a physical examination for purposes of assessing whether Plaintiff could maintain his CDL.[8] [Smart Dep. 32].

         Caduceus & Plaintiff's Recertification CDL Physical

         Caduceus is the third-party vendor occupational health medical provider for DeKalb County that administers various medical examinations for the employees of Roads and Drainage, including recertification physical exams for CDL holders employed by the county. [Deposition of Karyn Keaton-Bailey (“Bailey Dep.”) 14; Defendant's Rule 30(b)(6) Witness - Deposition of Saxton Steceban Hudson (“Hudson Rule 30(b)(6) Dep.”) 20-21; Deposition of Sterling Roaf, Jr., M.D. (“Dr. Roaf Dep.”) 47-48]. DeKalb County does not make medical determinations with regard to CDL physical examinations. [Dr. Roaf Dep. 48].

         On March 12, 2015, while at work, Roads and Drainage “informed” Plaintiff Smart that he “had to go” take a DOT physical recertification. [Smart Dep. 52; Deposition of Michael Brooks (“Brooks Dep.”) 9]. That same day, Plaintiff went to Caduceus's medical office located at 3987 Lawrenceville Highway, Suite B, Tucker, Georgia, 30084 for a DOT physical recertification. [Smart Dep., Exhibit 16]. During Plaintiff's visit at Caduceus, Caduceus personnel, namely, Nurse Practitioner Andrea Hayes (“Hayes”), performed vision tests, an alcohol test, a drug test, a cardiovascular test and a blood test. [Smart Dep. 54-56; Dr. Roaf Dep. 24]. Smart advised that he had undergone his first SLT procedure for glaucoma on his right eye and was scheduled for the same procedure on his left eye to no avail. [Smart Decl. ¶ 3]. Caduceus personnel subsequently advised Plaintiff that he did not pass the physical. [Smart Dep. 54-56]. Following the physical recertification exam, Caduceus personnel refused to sign a Medical Certification Card for Plaintiff. [Smart Dep. 57, 63, Def. Exhibit 14].

         Refrain From Duty Status

         On March 12, 2015, Caduceus issued a report stating, with regard to Plaintiff's “Work Status” that Smart was “Disqualified/Off Work” due to glaucoma / hypertension.[9] [Smart Dep. 57, 74, Def. Exhibit 16]. At the time, Defendant DeKalb County's Nurse Manager, Karyn Keaton-Bailey (“Bailey”), was responsible for ensuring that CDL drivers received their physicals in a timely manner (by scheduling physicals with Caduceus). [Bailey Dep. 11-12, 19-20, 22-23, 62, Pl. Exhibit 2; Smart Dep. 22-23]. Bailey received the notification from Caduceus that Plaintiff Smart was “Disqualified / Off Work.” [Bailey Dep. 11-12, 19-20, 22-23, 62, Pl. Exhibit 2; Smart Dep. 22-23].

         On March 12, 2015, Bailey sent a Work Status Form to Roads and Drainage refraining Smart from duty based on the documentation from Caduceus. [Bailey Dep. 17-20, 31, Pl. Exhibit 1]. The Work Status Form was addressed to Leo Owens, the designated contact in Roads and Drainage for employees refrained from duty. [Bailey Dep. 10-11, Exhibit 1; Deposition of Peggy Allen (“Allen Dep.”) 39-40]. Owens was responsible for then alerting Smart's supervisors, including General Foreman Andre Thompson and Superintendent of the Asphalt Division Michael Brooks, that Plaintiff was being refrained from duty. [Allen Dep. 40, Exhibit 9]. Plaintiff Smart was sent home by Roads and Drainage as he was refrained from duty. [Smart Dep. 74].

         According to Bailey, one of her responsibilities was to oversee the CDL Driver Program and ensure that every DeKalb County CDL driver maintained a medical blue card which was issued periodically (maximum period of up to 2 years) based upon physical examination geared towards CDL drivers. [Bailey Dep. 12-13]. Implementation of the CDL Driver Program was driven by a written memo from 1990 (DeKalb County's 1990 Policy) and the memo's expectation “that all CDL drivers in the County must maintain a medical blue card in order to drive for DeKalb County government[.]”[10] [Bailey Dep. 13-14].

         Georgia DDS Letter Decertifying Plaintiff's CDL

         On March 16, 2015, Georgia Department of Driver Services (“DDS”) mailed Plaintiff a letter at the address stated on his CDL (an old address) and provided to DDS. [Smart Dep. 44, 48, 190-91]. The letter from DDS referenced the same address, date of birth, and Class A CDL number stated on Plaintiff Smart's license and Medical Examiner Certificate. [Smart Dep. 44, 48, Def. Exhibits 14, 15]. The DDS letter stated as follows:

Changes to state and federal law require the Department of Driver Services (DDS) to collect copies of the medical certificates held by all commercial drivers beginning January 1, 2012. Additionally, each commercial driver must certify or re-certify the type of driving in which he/she engages. Any commercial driver who fails to satisfy these requirements within the time allotted in that regulation will no longer be qualified to operate a commercial vehicle until they re-certify or submit a new medical qualification card to DDS.
Your driving record indicates that either your medical certificate is expired or you have otherwise failed to comply with medical certificate requirements applicable to commercial drivers. As a result, the DDS will change your CDLIS medical certification status to “NOT-CERTIFIED”, and you will no longer be qualified to operate a commercial vehicle effective 03/15/2015. Please note that your non-commercial driving privilege is not impacted by this. However, you cannot lawfully operate a commercial motor vehicle on or after this date.

[Smart Dep. 49, Exhibit 15 at 1].

         Plaintiff's Efforts To Debunk Refrain From Duty Status

         On March 17, 2015, pursuant to instructions from Caduceus, Smart visited his personal doctor's office with Kaiser, located on Panola Road, Lithonia, for a blood pressure examination. [Smart Dep. 64-67]. Smart's blood pressure was 122/80. [Dr. Roaf Dep., Exhibit 4; Smart Dep. 66-68].

         Smart asked Kaiser to assist him demonstrating to Defendant that it was okay for him to drive. Kaiser faxed a letter to Dr. Henderson and asked her to prepare a letter speaking to Smart's glaucoma and any driving limitations. [Smart Dep. 66-67, 69]. On March 18, 2015, after several communications between Plaintiff and Kaiser, Dr. Henderson authored a letter for Plaintiff addressed, “To Whom It May Concern”:

James A Smart has been treated in our office for Advanced Open Angle Glaucoma. He has 20/20 vision in both eyes, but has a limited field of vision in both eyes.

[Dr. Roaf Dep., Pl. Exhibit 8; Smart Dep. 68-69].

         Smart returned to the Caduceus office with follow-up letters concerning his high blood pressure and glaucoma. [Smart Dep. 70-71, Pl. Exhibit 8; Bailey Dep. 35, Exhibit 2 Addendum]. One of the items obtained by Plaintiff and provided to Caduceus was his eye chart from Kaiser. [Smart Dep. 75-77]. Caduceus informed Smart that the documentation he provided regarding his vision was not acceptable. [Smart Dep. 71-73]. Plaintiff was informed that Caduceus required Plaintiff to provide an exemption form from the Department of Transportation (“DOT”) which could be obtained from the Georgia DDS. [Dr. Roaf Dep. 19-20]. Caduceus's records (addendum to original documentation of Plaintiff's March 12, 2015, visit) indicate that Dr. Roaf noted on March 20, 2014, “Needs vision waiver from DOT” and, on April 1, 2014, noted that Smart “Must contact state or federal department of transportation for vision waiver / exemption for limited field of vision[.]” [Doc. 66-4, Def. Exhibit 16]. Caduceus did not require any additional information about Plaintiff's blood pressure, and it appears that concerns about Plaintiff's high blood pressure were resolved to the satisfaction of Caduceus at that point. [Smart Dep. 77-78].

         DDS Vision Exemption Form

         Plaintiff Smart visited DDS and obtained a DDS Vision Exemption Form (“Vision Exemption Form”) and spoke with DDS personnel about what needed to be done to complete the form. [Smart Dep. 78-79]. After obtaining the Vision Exemption Form, Smart took the form to Dr. Henderson's office at Kaiser to be completed. [Smart Dep. 79-80].

         Based on a March 23, 2015, examination of Plaintiff (in between the two surgical procedures), on April 6, 2015, Dr. Henderson completed Plaintiff's Vision Exemption Form. [Doc. 52-5, Exhibit 5]. At that time, Dr. Henderson noted Plaintiff's left eye range of vision at 40 degrees and right eye range of vision at 60 degrees - below the requisite 70 degrees for the CDL physical exam. [Id. at 1 (measuring “FIELDS-HORIZONTAL MERIDIAN”)]. Dr. Henderson described Plaintiff Smart's vision deficiency “10 year history of Primary open angle glaucoma advance stage with peripheral field loss - both eyes[.]” [Doc. 52-5, Exhibit 5 at 2]. However, Dr. Henderson reported that Smart's vision deficiency was stable, that corrective lenses were needed for distance and near vision, that there was no double vision, and then did not answer a question about whether or not glasses or other treatment have corrected the deficiency. [Id. at 2]. Similarly, Dr. Henderson also did not answer the following question specifically posed to the examining medical professional, “In your opinion, does this person have sufficient vision to operate a commercial motor vehicle safely?” [Id. at 2]. And in terms of a professional opinion as to any restrictions that should be imposed, Dr. Henderson wrote, “Patient has limited peripheral vision.” [Id. at 2]. Notwithstanding peripheral vision deficiency, Plaintiff's visual acuity examination reflected 20/20 vision in both eyes with the use of glasses. [Id. at 1].

         Once completed, Smart returned the Vision Exemption Form to Caduceus but was informed that he did not follow the correct procedure and that Dr. Henderson should have sent the completed form directly to DDS. [Smart Dep. 80-81]. Caduceus explained to Smart that they could not accept the completed Vision Exemption Form and that he would need to obtain a new or blank form and have Dr. Henderson resubmit it. [Smart Dep. 75-76, 81]. After receiving clarification on the procedure, Smart returned to DDS for another form, delivered it to Dr. Henderson and asked her to complete the form a second time. [Smart Dep. 81-82].

         After Dr. Henderson's office submitted the second Vision Exemption Form, and while the same was pending with DDS, Smart returned to Caduceus and asked if they could release him to return to work. [Smart Dep. 82]. According to Smart, Caduceus advised him that “it was up to the county[.]” [Smart Dep. 85].

         Smart testified that he repeatedly went to Caduceus and was never allowed to retake the CDL physical exam. [Smart Dep. 151]. Instead, Smart stated that he was always stopped at the front desk and asked about paperwork. [Smart Dep. 151]. Smart made a final trip to Caduceus and was unsuccessful in his effort to return to work. [Smart Dep. 85].

         Plaintiff Allegedly Asks To Return To Work

         Smart visited Owens and asked about returning to work and was advised by Owens that he didn't think he could have Plaintiff return without the CDL. [Smart Dep. 83-84]. Smart emphasized to Owens that he wanted to come back to work and only had a couple more years and would try to retire. [Smart Dep. 83]. According to Plaintiff:

I went up to the job. I saw that [Leo] was in his office. I walked in his office and I spoke with him and I asked him, I said, Leo, I need to come back to work. Even if it means not driving a county vehicle. Like I said and I stated to him, I've been here long enough I don't have to drive. I mean if I need to grab a shovel and be a crew worker, I can do that and he told me he couldn't let me return to work until I passed a physical because my job required a CDL physical.

[Smart Dep. 14-23]. According to Smart, he told Owens that he did not need to drive a county truck and was willing to return to work as a crew worker because he needed to come back to work. [Smart Dep. 131]. According to Smart, “I begged Leo [Owens] to just help me find something I could do there to make some income.” [Smart Decl. ¶ 9].

         CDL Medical Card From Dr. Modi

         On or about June 23, 2015, Smart identified a private physician and went for an independent CDL physical exam. [Smart Dep. 87-88]. Smart obtained a Medical Examiner's Certificate from Dr. Vikash Modi indicating that Smart had passed the CDL physical requirements. [Smart Dep. 148-49, Def. Exhibit 17]. On June 26, 2015, in hopes of returning to work, Plaintiff went to work, clocked in, and presented the Modi medical card to Michelle Harkles, the Administrative Assistant to Owens. [Smart Dep. 149; Deposition of Michelle Harkles (“Harkles Dep.”) 12-14; Owens Dep. 19-20]. Harkles advised Plaintiff that the Modi physical card was not acceptable because it was not issued by Caduceus. [Smart Dep. 149; Harkles Dep. 12-14; Owens Dep. 19-20]. Plaintiff has since renewed his Class A CDL using the medical examiner's certificate card issued by Dr. Modi. [Smart Dep. 98]. Plaintiff renewed his Class A CDL on or about February 29, 2016, prior to the March 1, 2016, expiration date.

         DeKalb County 1990 Policy

         In 1990, DeKalb County issued a written policy regarding physical examination requirements for CDLs (“1990 Policy”). [Deposition of Defendant's Second Rule 30(b)(6) Witness - Katherine Furlong (“Furlong Rule 30(b)(6) Dep.”) 12, Exhibit 1]. The 1990 Policy provided that commercial drivers are to meet the physical standard requirements of private employer drivers. [Furlong Rule 30(b)(6) Dep. 15. 30-32]. The 1990 Policy spoke to the means for satisfying the CDL physical examination requirement and explained:

This may be accomplished by passing a physical examination provided by DeKalb County or by the employee, providing documentation that he or she has passed the State-required physical examination given by any physician acceptable to the State of Georgia.[11]

[Furlong Rule 30(b)(6) Dep., Exhibit 2]. The caveat was that DeKalb would not pay for the employee to test with a private physician.

         DeKalb County October 2015 Policy

         Effective October 2015, Defendant implemented a Fitness-For-Duty Policy (“October 2015 Policy”) that governs CDL medical recertification requirements and replaced the 1990 Policy. [Furlong Rule 30(b)(6) Dep. 8-11, Pl. Exhibits 1, 2]. The October 2015 Policy explicitly prescribed a procedure for disputes regarding employee physical or mental fitness and requires an employee or his or her physician to provide conflicting opinion to DeKalb's occupational health provider if one exists pertaining to an employee's ability to return to work. [Furlong Rule 30(b)(6) Dep. 19, Pl. Exhibit 2]. According to Furlong, although not in writing at the time, the October 2015 procedure was the same process in existence for resolving this type of dispute prior to October 2015. [Furlong Rule 30(b)(6) Dep. 19-23, 32].

         Plaintiff's Resignation

         On November 18, 2015, Smart resigned from employment with DeKalb County by tendering a resignation letter (consisting of one sentence) for his Roads and Drainage Construction Supervisor position. [Smart Dep. 26-27, Def. Exhibits 6, 7; Harkles Dep. 32-33, Def. Exhibits 1, 2; Allen Dep. 85-86, Def. Exhibit 1]. According to Smart, he resigned (out of necessity) in order to be able to access funds from his pension plan with DeKalb County. [Smart Dep. 115-116, 173, 191]. Smart represents that he didn't know about, and was not advised about, the 1990 Policy or the October 2015 Policy and that had he been aware he may not have had to resign. [Smart Decl. ¶ 9].

         Plaintiff's Class A CDL Self-Certification

         Plaintiff Smart completed a DDS commercial driver self-certification form for a Class A CDL license dated January 9, 2014[12] (but likely completed in 2016) wherein he certified that he will operate or expect to operate in interstate or foreign commerce and that he is subject to and meets the FMCSA driver qualification requirements under 48 C.F.R. Part 391 and is required to obtain a medical examiner's certificate. He also certified that he did not have an arm, foot, or leg that interfered with the normal tasks ...


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