United States District Court, N.D. Georgia, Atlanta Division
ORDER AND REPORT AND RECOMMENDATION
F. KING, UNITED STATES MACHSTHATE JUDGE
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.
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. §
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
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
Defendants' Challenge to [Post-Deposition] Supplemental
Declaration of James Smart
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
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.
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)
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].
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. 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.
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 -
[Smart Dep. 106-07].
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. [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].
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).
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.
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). For these
reasons, the Court overrules Defendant's objection to
Smart's Supplemental Declaration and request that it be
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.
Defendant's motion to strike or objection to
Plaintiff's Supplemental Declaration is
Defendant's Motion to Strike [Objection to] Portions of
Dr. Henderson's Affidavit
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. [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. [Doc. 68 at 2-3].
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
• 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].
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.
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.
reasons stated, Defendant's Motion [Doc. 68] to Strike is
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.
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].
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].
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].
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. [Smart Dep. 32].
& Plaintiff's Recertification CDL Physical
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].
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].
From Duty Status
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. [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].
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].
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[.]” [Bailey Dep.
DDS Letter Decertifying Plaintiff's CDL
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
[Smart Dep. 49, Exhibit 15 at 1].
Efforts To Debunk Refrain From Duty Status
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].
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
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].
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.
Vision Exemption Form
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].
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].
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].
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].
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].
Allegedly Asks To Return To Work
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
[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].
Medical Card From Dr. Modi
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
County 1990 Policy
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
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.
[Furlong Rule 30(b)(6) Dep., Exhibit 2]. The caveat was that
DeKalb would not pay for the employee to test with a private
County October 2015 Policy
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].
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].
Class A CDL Self-Certification
Smart completed a DDS commercial driver self-certification
form for a Class A CDL license dated January 9,
2014 (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