United States District Court, D. New Jersey
MCNULTY United States District Judge.
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
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.
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.
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.
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.
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,
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
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)
Requirements for Obtaining a CDL
Eligibility and the Hearing Test Waiver
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. ¶
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. (Id. ¶ 41)
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
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)
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. ¶
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.
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)
Bordentown's CDL Training Course
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.))
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.
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,  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)
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.
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)
Bordentown's Efforts to Accommodate 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)
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.
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.
Bordentown's Cost Analysis
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)
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)
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)
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.
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).
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).
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.
ADA Title III
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
42 U.S.C.A. § 12182(b)(2)(A)(iii) (emphasis
implementing Title III state the following about the means of
accommodating a disability:
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
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.
regulations further provide that when determining whether an
action would result in an undue burden, ...