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Frilando v. Bordentown Driver Training School, LLC

United States District Court, D. New Jersey

July 27, 2017

KENNETH FRILANDO, Plaintiff,
v.
BORDENTOWN DRIVER TRAINING SCHOOL, LLC d/b/a SMITH & SOLOMON, Defendant.

          OPINION

          KEVIN MCNULTY United States District Judge.

         Before the Court is a motion for summary judgment pursuant to Fed.R.Civ.P. 56 (ECF No. 39) brought by the defendant, Bordentown Driver Training School, LLC d/b/a Smith 86 Solomon ("Bordentown"). Bordentown runs training classes for people who seek commercial driver's licenses ("CDLs"). In his Complaint (ECF No. 1), the plaintiff, Kenneth Frilando, alleges that Bordentown has violated Title III of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12181, et seq., as well as the New Jersey Law Against Discrimination (the "NJLAD"), N.J. Stat. Ann. § 10:5-1, et seq., by refusing to accommodate his disability in a CDL training course in which he attempted to enroll. Frilando asks for declaratory, injunctive, and monetary relief, including an order that Bordentown implement policies and accommodations for serving deaf and hard-of-hearing students.[1]

         Bordentown asks this Court for summary judgment and a dismissal of Frilando's Complaint on four grounds. Bordentown says it cannot reasonably accommodate Frilando's disability without (1) fundamentally altering its training course; (2) threatening the health and safety of the public; and (3) incurring an undue financial burden. Bordentown also argues (4) that even setting aside Frilando's hearing disability, he was not medically qualified to participate in the training course.

         This case presents knotty legal, not to say social, issues. Mr. Frilando admirably seeks to overcome a hearing disability. He believes that his disability should not limit his employment options, an aspiration that finds considerable support in federal law. Federal regulations do, however, place limitations, based on safety concerns, on a deaf person's obtaining a CDL. Mr. Frilando insists that those limitations can be accommodated by certain means, including the use of an American Sign Language interpreter, and that he will be entitled to an ongoing waiver of the hearing requirement. And of course Mr. Frilando is not yet applying for the CDL itself; he only seeks an accommodation sufficient to permit him to complete the Class A training course at Bordentown.

         On the other hand, no one disputes that Bordentown is a highly reputable driver training school, with an interest in graduating students who will qualify for a CDL. Of course a person need not meet CDL licensing standards before being trained. The training process itself, however, involves the operation of heavy machinery in the yard and on public roads, raising immediate safety concerns that cannot simply be bucked to the licensing phase. There is evidence in the record that Bordentown behaved responsibly and even sought regulatory guidance as to how it might practically accommodate Mr. Frilando's disability. But Bordentown fears that it will have to impair its educational mission with respect to other students, as well as incur a potentially ruinous expense, in order to accommodate a single student who may not ever be eligible for a license.

         Having reviewed the record, I conclude that these issues are just that- issues, which will need to be submitted to a fact finder for decision. These difficult questions, requiring a sensitive balance of competing policies, should be aired with the benefit of a full factual record. Because there are disputed issues of material fact, Bordentown's motion for summary judgment will be denied.

         I. BACKGROUND

         A. The Parties

         Bordentown is a New Jersey-licensed organization that operates Commercial Driver's License ("CDL") training schools throughout Delaware, New Jersey, and Pennsylvania. According to Bordentown, because its training programs involve the use of commercial motor vehicles ("CMVs"), it is classified as an interstate motor carrier and must adhere to the Federal Motor Carrier Safety Regulations ("FMCSRs"), which are issued by the Federal Motor Carrier Safety Administration (the "FMCSA"). (Def. SUF ¶¶ 2-3; Def. Ex. 1, ¶ 4)[2] The FMCSRs define a CMV to include "any self-propelled or towed motor vehicle used on a highway in interstate commerce" that "[h]as a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4, 536 kg (10, 0001 pounds) or more." (Id. ¶ 4 (quoting 49 C.F.R. § 390.5)) A state-issued CDL is generally required before a person is permitted to drive a CMV alone.[3]

         Frilando has been deaf since birth. With hearing aids, he can detect loud noises such as sirens, gunshots, explosions, fire alarms, car horns, doorbells, and ringing phones, but he cannot identify their source or direction. (Def. SUF ¶¶ 116-117; Pl. SUF ¶ 1) He communicates primarily by using American Sign Language ("ASL") (Pl. SUG ¶ 1), but also by written English and gestures. (Pl. SUF ¶ 3) Frilando learned to drive a car with an instructor in the front seat and an ASL interpreter in the back seat. During full stops, the interpreter would convey to Frilando the directions spoken by the instructor. (Pl. Resp. ¶¶ 7-8; Pl. SUF ¶ 6-8) Frilando has held a non-commercial driver's license for over thirty years, but now wants to drive a CMV. (Pl. SUF ¶ 6)

         B. Requirements for Obtaining a CDL

         1. Eligibility and the Hearing Test Waiver

         An individual who wishes to obtain a CDL must pass an FMCSR- prescribed medical fitness examination and obtain a medical certificate from a medical examiner who is certified and listed on the FMCSA's national registry.

(Def. SUF ¶ 22) To obtain and maintain a CDL, an individual also must be capable of passing an FMCSR-prescribed hearing test:

A person is physically qualified to drive a commercial motor vehicle if that person . . . [f]irst perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 50 Hz, 1, 000 Hz, and 2, 000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5 - 1951.

(Def. SUF ¶ 28 (quoting 49 C.F.R. § 391.41(b)(11)) Since 2013, however, the FMCSA has waived the hearing test requirement for certain individuals. (Id. ¶ 29-31)

         Requirements for CDL training courses-as opposed to requirements for the CDL itself-are less clear. The FMCSA has not regulated or offered guidance as to how CDL trainers should accommodate individuals who have received FMCSA hearing-test waivers. (Def. SUF ¶ 33) Bordentown's Chief Operating Officer, John Diab, testified that in 2014 he asked the FMCSA for guidance on that issue. FMCSA allegedly replied that there is no test or acceptable training program for deaf CDL applicants. (Id. ¶ 39-41) Diab says he was told that hearing-test waivers were intended to allow individuals who had lost their hearing since receiving a CDL to continue to drive; the FMCSA had not considered how unlicensed, hearing-impaired individuals could be granted waivers in order to be trained. (Id. ¶ 40) Diab testified that he also asked administrators from the American Association of Motor Vehicle Administrators (the "AAMVA") for guidance; they told him that the FMCSA had asked the AAMVA to create a test for deaf CDL applicants, but that the AAMVA had declined to do so, citing safety concerns.[4] (Id. ¶ 41)

         Frilando twice sought to obtain an FMCSR-compliant medical certificate. (Id. ¶ 120) First, he obtained a medical certificate from Dr. Lawrence Marino. Dr. Marino, however, was not listed on the FMCSA's national registry. (Def. SUF ¶¶ 121-126) When Frilando realized this, he sought a second certificate from Dr. Kwi Y. Yu, who is FMCSR-certified. Dr. Yu issued Frilando a medical certificate, dated July 30, 2015 (Def. Ex. 20). Dr. Yu now says, however, that he did not know that Frilando had previously been diagnosed with sleep apnea and atrial fibrillation ("A-fib"). Bordentown implies that Frilando purposely withheld this information; Frilando says that Dr. Yu never elicited it. Dr. Yu apparently attempted, with limited success, to communicate with Frilando by speaking loudly. (Def. SUF ¶¶ 132-33; PL Resp. ¶¶ 132-33) Dr. Yu has since testified that he would not have issued Frilando a medical certificate had he known about Frilando's other medical conditions; sleep apnea, he said, might prevent Frilando from ever being medically cleared under the FMCSRs. (Id. 128-135) Frilando, however, has adduced evidence that the sleep problem was minor, easily remedied by using a new pillow, and there is nothing further in the record indicating the extent to which the A-fib condition would pose a danger. (See Def. Ex. 3 at 144-51)

         On January 13, 2015, between the time he received an invalid medical certificate from Dr. Marino and a facially valid, but now questioned, medical certificate from Dr. Yu, Frilando applied for and received a 90-day hearing test waiver from the FMCSA. It states that the FMCSA "is granting this waiver . . . so [Frilando] may complete driver training school." (Def. Ex. 21) The FMCSA issued Frilando a second, two-year waiver on March 29, 2015. (Def. SUF ¶¶ 138-139) Bordentown claims that neither hearing-test waiver is effective because the FMCSRs require an applicant seeking a waiver to provide a medical certificate that is valid. (Id. ¶ 140)

         2. CDL Testing

         The FMCSRs require that all state-level CDL examinations include a knowledge test and a skills test, covering specific, defined subject areas. (Def. SUF ¶ 42) The knowledge test contains FMCSA-approved questions. The skills test comprises three phases, covering pre-trip vehicle inspection skills, basic vehicle control skills, and safe on-road driving skills. An applicant must complete all four test components to pass the CDL examination. [Id. ¶ 44-45)

         FMCSR standards prohibit the use of interpreters (including ASL interpreters) during any portion of the CDL examination. As of the time Frilando sought to enroll at Bordentown, neither New York's nor New Jersey's CDL examination permitted the use of ASL interpreters or otherwise accommodated hearing-impaired individuals. (Id. ¶ 57). The FMCSRs also state that "[n]either the applicant nor the examiner may communicate in a language other than English during the skills test." (Def. SUF ¶¶ 46-48 (citing 49 C.F.R. § 383.133(b)(3) and quoting 49 C.F.R. § 383.133(c)(5); see also Id. ¶ 82). Another FMCSR provision requires CMV drivers to be able to speak English well enough to converse with the general public, to understand highway signs and signals, to respond to inquiries by officials, and to make entries on reports and records. (Id. ¶ ¶ 49 (quoting 49 C.F.R. § 391.11(b)(2))

         As noted above, however, the FMCSRs do not specifically regulate CDL training courses, so the particulars of such a course would not literally violate the FMCSRs. Indeed, a CDL training program, however helpful, is not a prerequisite to a CDL application. (Id. ¶ 32) Diab stresses, however, that the entire point of the course is to prepare individuals for the CDL test, the contents of which are prescribed by the FMCSRs. At any rate, says Diab, accommodating a deaf individual would put Bordentown at risk of losing its operating license; breaching the terms of its insurance policies (which independently require compliance with FMCSR standards); and being held liable for any motor vehicle accidents that occur during training. (Def. SUF ¶¶ 36-37; Def. Ex. 1, ¶ 4)

         C. Bordentown's CDL Training Course

         At each of its nine locations, Bordentown offers a 160-hour "Class A" CDL training program for students who have no prior experience operating a CMV. (Def. SUF ¶¶ 62-64) To enroll, prospective students must, inter alia, sign an acknowledgement that they "must acquire and maintain a Federal DOT Medical Card and must have it in [their] possession at all times." (Id. ¶ 65-66 (quoting Def. Ex. 18 at BDTS-0139)) (I gather from the record that the "Federal DOT Medical Card" refers to, or at least includes, the FMCSR certificate. (See Def. Ex. 2 at 34:13-35:2.))

         Bordentown's Class A has three phases: classroom training, yard training, and road training. (Def. SUF ¶ 68) These phases roughly correlate to the sections of the CDL examination.

         Phase one, the classroom training, prepares students for the written knowledge component of the CDL examination. (7d.¶ 72) At Bordentown's largest location, in Linden, New Jersey, [5] classroom training uses videos, computer presentations, and lectures. (Id. ¶ 73) At the end of classroom training, students take the written CDL knowledge test at their state department of motor vehicles ("DMV"). If they pass, they obtain a Commercial Learner's Permit (a "CLP"), which is required to operate a CMV (along with an instructor). (Id. ¶¶ 50, 75; Def. Ex. 1, ¶ 12)

         Once a Class A student has obtained a CLP, he or she progresses to phase two: "yard training." Yard training prepares students for the pre-trip vehicle inspection and basic vehicle control portions of the CDL skills examination. (Def. SUF ¶¶ 76-79) At Bordentown's Linden facility, yard training occurs in a private lot, or "yard." At a given time, the yard may contain 20 trucks and 150 students, with each instructor overseeing up to three vehicles and fifteen students. [Id. ¶¶ 85-86) Bordentown describes the safety of yard training as being contingent on students' remaining focused on their vehicles. (Id. ¶¶ 87-89) That is just one reason, Bordentown says, that accommodating a deaf student by allowing an ASL interpreter on-site during yard training would be dangerous unless Bordentown dramatically changes the way it operates in some yet-unspecified way. (Id. ¶ 90-93)

         The third Class A phase, road training, involves an instructor's taking up to four students on the road. (Def SUF ¶IOI) At Bordentown's Linden location, this third phase takes place exclusively on public roads. (Id. ¶ 102) Therefore, Bordentown says, the safety of the training depends on verbal communication between students and instructors, students' ability to recognize audible alerts, and students' ability to respond immediately to verbal instruction. (Id. ¶¶ 95-106) Again, Bordentown submits that allowing an ASL interpreter to participate in road training would threaten the safety of students, instructors, and the public. It would also require significant changes to the way Bordentown operates, because CMV seats normally occupied by students would have to be allocated to ASL interpreters. (Id. ¶¶ 107-111)

         D. Bordentown's Efforts to Accommodate Frilando

         Frilando first made known his interest in enrolling in Class A through his brother. The brother contacted Bordentown and made an appointment for Frilando to meet with Bordentown representatives on February 20, 2015. (Def. SUF ¶ 143) Neither Frilando nor his brother showed up for that February 20th meeting. (Id. ¶ 144) On March 17, 2015, Frilando's brother called Bordentown and spoke with Bordentown's Director of Safety and Program Training, Dale Wessendorf. He also e-mailed Wessendorf copies of Frilando's 90-day and two-year hearing test waivers. [Id. ¶ 145) On March 23th and 29th of 2015, Frilando's brother followed up by e-mail. (Def. SUF ¶¶ 141-45; PL Resp. ¶¶ 141-45) On March 30, 2015, Bordentown responded that it was seeking guidance from the Federal Department of Transportation ("DOT) and local authorities as to how it could "safely and effectively accommodate the specific needs" of the deaf community. (Def. SUF ¶¶ 141-149) Frilando's brother responded that time was of the essence because Frilando's permit would be expiring on January 2, 2016. (Id. ¶ 149)[6]

         Once Bordentown learned of Frilando's interest in Class A, it again sought guidance from FMCSA administrators. The administrators told Bordentown that there was still no CDL test or acceptable training program for deaf individuals and that the AAMVA, citing safety concerns, had refused to develop such a test to accommodate deaf individuals. (Def. SUF ¶¶ 157-158) Bordentown also contacted New Jersey's CDL examiner, Pennsylvania's DMV, and New York's DMV. New York's DMV never provided an answer; New Jersey and Pennsylvania said they would not test a deaf person because it would not be safe to do so. (Id. ¶¶ 160-162)

         Bordentown also conducted its own analysis to determine the feasibility of accommodating Frilando, but concluded that deaf students could not safely participate in Class A. (Id. ¶ 163) Bordentown communicated this conclusion to Frilando's brother on April 6, 2015.

         E. Bordentown's Cost Analysis

         John Diab testified that Bordentown "looked at [the inquiry] strictly from a safety standpoint" when it rebuffed Frilando in March of 2015. At the time, issues of cost did not come up; Bordentown became concerned about cost only when Diab sat in on Frilando's deposition and learned that the cost of two ASL interpreters for a day would be $2500. (Def. Ex. 2 at 210:10-211:23)

         Diab estimates that it would cost between $60, 000 and $150, 000 to provide a student with two ASL interpreters for the average duration of Class A. (Def. SUF ¶ 112) That cost would offset most or all of Bordentown's $140, 000 in annual profits from the Linden facility, and a significant portion of the $400, 000 in annual profits company-wide. (Id. ¶¶ 114-15)

         F. Procedural History

         No prior motion practice has occurred in this case. Frilando filed the Complaint against Bordentown on April 24, 2015, and on June 26, 2015, Bordentown answered the Complaint, alleging as affirmative defenses, inter alia, the arguments it now makes in support of its motion for summary judgment. (Answer pp. 8-9)

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by 'showing'-that is, pointing out to die district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.

         Once the moving party has met that threshold burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which nonmoving party must rely to support its assertion that genuine issues of material fact exist). "[Unsupported allegations . . . and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) ("A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial."). If the nonmoving party has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, . . . there can be 'no genuine issue of material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).

         In deciding a motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Credibility determinations are the province of the fact finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

         The summary judgment standard, however, does not operate in a vacuum. "[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). That "evidentiary burden" is discussed in the following sections.

         III. DISCUSSION

         A. ADA Title III

         Title III of the ADA prohibits discrimination against individuals "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). See also Bowers v. Nat'l Collegiate Athletic Ass'n, 118 F.Supp.2d 494, 514 (D.N.J. 2000), opinion amended on reargument, 130 F.Supp.2d 610 (D.N.J. 2001). Bordentown does not dispute that Bordentown is a place of public accommodation under the ADA and that Frilando is disabled. This motion concerns only the element of discrimination, which, under Title III, includes

a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations',

42 U.S.C.A. § 12182(b)(2)(A)(ii) (emphasis added). Title III discrimination may also consist of

a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;

42 U.S.C.A. § 12182(b)(2)(A)(iii) (emphasis added).[7]

         Regulations implementing Title III state the following about the means of accommodating a disability:[8]

A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.

28 C.F.R. § 36.303(a) (emphases added). Under the regulations, "auxiliary aids and services" includes "[q]ualified interpreters on-site or through video remote interpreting (VRI) services, " 28 C.F.R. § 36.303(a)-(b)(1), and "qualified interpreters" include "sign language interpreters." 28 C.F.R. § 36.104.

         The regulations further provide that when determining whether an action would result in an undue burden, ...


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