UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT NO. 90-2141 ALDEN WARD, Petitioner V. SAMUEL SKINNER, IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION, Respondent ~~ BRIEF OF THE PETITIONER Deborah Piltch Jane K. Alper Disability Law Center, Inc. 11 Beacon Street, Suite 925 Boston, MA 02108 (617) 723-8455 Harold L. Lichten Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C. 44 School Street Boston, MA 02108 (617)723 -5500 On the Brief: Nancy L. Novogrodsky, Law Student TABLE OF CONTENTS Paqe TABLE OF AUTHORITIES iii STATEMENT OF ISSUES STATEMENT OF THE CASE I. PRIOR PROCEEDINGS 1 11. STATEMENT OF FACTS 2 A. Facts About the Petitioner, Alden Ward 2 B. Facts Relating to Medical Evidence 5 On The Risk of An Individual With A History of Epilepsy Having A Seizure While Driving C. Facts Regarding Ward's Risk of Having A . 10 Trucking Accident as a Result of a Seizure ARGUMENT 11 I. IN DECIDING THIS CASE THIS COURT MUST APPLY THE 11 SUBSTANTIVE LEGAL STANDARD REQUIRED UNDER SECTION 504 OF THE REHABILITATION ACT. 11 A. The Cousins Decision Requires the Department 11 to Comply With Section 504 in Deciding Waiver Petitions. B. The Section 504 Standards Governing 14 Certification by Regulatory Agencies is not Different from the Standards Governing Employment Decisions. 11. THE DEPARTMENT OF TRANSPORTATION'S AUTOMATIC 16 DENIAL OF MR. WARD'S PETITION FOR WAIVER SOLELY BECAUSE HE HAS A SEIZURE DISORDER AND CURRENTLY TAKES ANTI-CONVULSANT MEDICATION TRANSGRESSED THE MANDATE OF SECTION 504, WHICH REQUIRES INDIVIDUALIZED ASSESSMENT OF AN INDIVIDUAL'S QUALIFICATIONS. 111. THE DEPARTMENT OF TRANSPORTATION VIOLATED SECTION 19 504 BY FAILING TO DETERMINE THAT MR. WARD'S EMPLOYMENT AS A COMMERCIAL VEHICLE DRIVER WOULD POSE A SIGNIFICANT RISK TO THE SAFETY OF HIMSELF OR OTHERS. i. A. To Support a Finding that Mr. Ward is not 19 l'Otherwise Qualified" Under Section 504, There Must Be a Determination That His Employment Would Pose a Significant Risk To the Health and Safety of Others. B. The Department of Transportation Failed to 25 Establish that Mr. Ward's Employment as a Driver of Commercial Vehicles Interstate Would Pose any Recognizable Risk, Much Less a Significant Risk, to the Health and Safety of Others. IV. THE DEPARTMENT OF TRANSPORTATION VIOLATED SECTION 27 504 BY FAILING TO CONSIDER WHETHER A REASONABLE ACCOMMODATION COULD HAVE BEEN MADE TO ALLOW WARD TO SAFELY AND EFFICIENTLY PERFORM THE JOB OF INTERSTATE TRUCK DRIVER. V. THE DEPARTMENT OF TRANSPORTATION FAILED TO AFFORD 29 WARD AN APPROPRIATE PROCEDURE FOR DETERMINING HIS WAIVER REQUEST. CONCLUSION 32 ADDENDA ii. TABLE OF AUTHORITIES cases Paqe Appeal of Stober 15 546 A.2d 155 (Pa. Cmwlth. 1988) Bentiveqna v. United States Dept. of Labor 20 694 F.2d 619 (9th Cir. 1982) Chalk v. U.S. Dist. Court Cent. Dist. of Cal. 20 840 F.2d 701 (9th Cir. 1988) Cousins v. Secretary of the U.S. Dept. of Transp. 4, 11, 16, 31 880 F.2d 603 (1st Cir. 1989) Doe v. New York Universitv 22, 23 666 F.2d 761 (2nd Cir. 1981) Hall v. U.S. Postal Service 16 857 F.2d 1073 (6th Cir. 1988) Hissins v. Maine Cent. R. Co. 18, 23 471 A.2d 288 (Me. 1984) Jackson v. State of Maine 15 544 A.2d 291 (Me. 1988) Jansen v. Food Circus Supermarkets, Inc. 23 541 A.2d 682 (N.J. 1988) Kelley v. Bechtel Power CorD. 23 633 F.Supp. 927 (S.D. Fla. 1986) Mantolete v. Bolser 16, 22, 28 767 F.2d 1416 (9th Cir. 1985) New York State Ass'n for Retarded Children v. Carev 14 612 F.2d 644 (2nd Cir. 1979) Prewitt v. U.S. Postal Service 28 662 F.2d 292 (5th Cir. 1981) School Board of Nassau Countv v. Arline 16, 17, 19, 21, 22, 25, 480 U.S. 273 (1987) 28 Smith v. Administrator of Veterans Affairs 29 32 FEP Cases 986 (C.D. Cal. 1983) Strathie v. Department of Transoortation 15, 23, 29 716 F.2d 227 (3rd Cir. 1983) iii. Pase United States v. Yellow Cab Co. 31 332 U.S. 218 (1947) Federal Statutes and Resulations 5 U.S.C. 5706 (Administrative Procedure Act) 2, 11 29 U.S.C. 5791 (Section 501) 22 29 U.S.C. $794 (Section 504) 1, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27, 29, 30, 31, 32 42 U.S.C. 52000e sea. (Title VII) 24 P.L. 101-336 (Americans With Disabilities Act) 24 20 C.F.R. Part 416, Subpart N 31 45 C.F.R. §391.41(b) (8) 2, 3, 15 45 C.F.R. §84.3(k) 16 State Statutes M.G.L. c. 32 §6(3) 30 N.H. Rev. Stat. Ann. tit. 29, §547 30 R.I. Gen. L. 531-10-44 30 Miscellaneous Authorities Annual Survey of Labor Law 28 Boston College Law Review 40 (Dec. 1986) 17 Accommodating the Handicapped: Rehabilitating Section 504 After Southeastern, 80 Columbia L.Rev. 171 (1980) 29 Comment, Section 504 of the Rehabilitation Act: Analyzing Employment Discrimination Claims, 32 University of Penn. L.Rev. 867 (1984) 18-19 iv. ._._.~..-.._I ..... .~... STATEMENT OF ISSUES 1. Did the Department of Transportation violate the substantive requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. 5794, by denying Petitioner's request for a waiv r from the Federal Motor Carrier Safety Regulation which prohibits individuals with epilepsy from driving commercial vehicles in interstate commerce without making an individualized assessment of Petitioner's circumstances and the associated risks? 2. Did the Department of Transportation violate Section 504 by failing to determine whether Petitioner posed a substantial risk to himself or others in light of the medical evidence? 3. Did the Department of Transportation violate Section 504 by failing to consider whether a reasonable accommodation could be made which would allow Petitioner to safely and efficiently perform the job of interstate truck driver? 4. Did the Department of Transportation violate Section 504 by failing to have an appropriate administrative process for adequately considering Petitioner's request for a waiver? STATEMENT OF THE CASE I. PRIOR PROCEEDINGS In this case, the Petitioner, Alden Ward, challenges the decision of the Federal Highway Administration of the United States Department of Transportation (the Department) to deny him a waiver from its regulation, 49 C.F.R. §391.41(b)(8), which prohibits an individual with epilepsy from driving a commercial vehicle in interstate commerce. Ward applied for a waiver on April 23, 1990 on the ground that his condition was well-controlled, that he had been seizure- free for more than six years, and that his treating neurologist had cleared him to safely operate a tractor-trailer rig (App. 105-107) Ward's application was denied by the Administrator of the Federal Highway Administration on October 9, 1990 (App. 1-5). Ward filed his Complaint and Petition for Review under the Administrative Procedure Act, 5 U.S.C. 5706, on November 28, 1990. 11. STATEMENT OF FACTS A. Facts About the Petitioner, Alden Ward Alden Ward is a 30-year-old man who lives in Billerica, Massachusetts with his wife and young son (App. 12). He graduated from the Andover Tractor Trailer School in June, 1987 (App. 137), and received his Class 1 Operator's License in July, 1987 (App. 154). He was employed as a truck driver periodically from July, 1987 until December, 1989 for a variety of employers (App.7). His license has never been suspended or revoked (App. 9) Ward has a seizure disorder diagnosed in adolescence which causes infrequent, mostly nocturnal seizures (App. 12, 15, 154). He takes medications (Dilantin and Tegretol) which completely control his seizures (App. 12-13, 15). He has been completely 2 seizure free since January 1984 (App. 15, 154).' His neurologist, Dr. N. Paul Rosman, a Professor at Tufts University School of Medicine (App. 156), states that Ward regularly takes his anticonvulsant medications and has developed a schedule to ensure that he does not forget to take them (App. 12-13). Dr. Rosman concludes that given Mr. Ward's freedom from seizures for more than six years, "there is no medical contraindication to his driving commercial vehicles such as a tractor trailer rig" (App. 13). In May, 1989, while employed as a truck driver, Mr. Ward underwent a routine drug test administered in the course of his employment. When traces of anticonvulsant medication were found in his urine, he was suspended from his employment as a driver pursuant to the Federal Motor Carrier Safety Regulation, 49 C.F.R. §391.41(b)(8), which prohibits an individual with epilepsy from driving a commercial vehicle in interstate commerce (App. 154). On April 23, 1990, Mr. Ward, through his attorneys, applied to Thomas Larson, Administrator of the Federal Highway Administration, formally requesting a waiver from §391.41(b)(8) on the ground that Mr. Ward had been seizure free for more than six years and had been medically cleared by his treating neurologist to safely operate a tractor trailer rig (App. 105- ' Ward's last seizure occurred following an evening of excessive drinking (App. 12). Since that time, Mr. Ward has stopped drinking except for an occasional glass of wine. 3 , 107).* In support of his request, Mr. Ward submitted a report from Dr. Allan Krumholz, Professor of Neurology at the University of Maryland and an internationally recognized expert on epilepsy and driving, who stated that the Department's blanket exclusion of people with epilepsy or people taking anticonvulsant medication from driving commercial vehicles was not based on sound medical evidence (App.