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Ex-bus drivers win round in lawsuit

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The Daily Republic
Ex-bus drivers win round in lawsuit
Mitchell South Dakota 120 South Lawler 57301

A federal judge has ruled the city of Mitchell violated the Americans with Disabilities Act when it required three former Palace Transit bus drivers to take a physical exam normally meant for interstate truck drivers.

In an order filed Nov. 9, U.S. District Judge Lawrence Piersol granted summary judgment to three former Palace Transit drivers -- James Nichols, 55, John Robertson, 58, and Curtis Dumas, 57 -- on one claim contained in a lawsuit each filed last year accusing the city of Mitchell of age and disability discrimination. In September 2011, the three lawsuits were combined into one case.

The dispute began when the city of Mitchell adopted a policy in January 2009 requiring Palace Transit drivers to pass a federal Department of Transportation physical exam. The exam is the same as the one required of all interstate truck drivers.

Nichols, Robertson and Dumas all were given the physical in 2009. Nichols and Robertson did not pass and were fired shortly after.

Dumas passed and was given a one-year certification, but was placed on medical leave after having heart bypass surgery in March 2010. When that leave expired in May 2010, Dumas was fired.

Attorneys for each former employee claim Robertson, Nichols and Dumas were all wrongly subjected to federal DOT physicals because they drove only on in-town roads, not interstate roads.

Piersol found the state specifically exempts intrastate drivers -- such as Palace Transit who only drive within the confines of a city -- from the physical requirements of the DOT exam.

"The state Legislature prohibited what the city of Mitchell permitted and, in fact, required," Piersol wrote.

Requiring Nichols, Robertson and Dumas to take the exam was "as a matter of law, broader and more intrusive than necessary."

Piersol notes that an employer must show "significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job" before requiring a physical exam, such as the DOT exam, on an individual basis. The jury, Piersol wrote, will determine whether that was the case prior to Nichols, Robertson and Dumas being given the exam.

The three men also claim the city failed to accommodate them by not offering to provide a different or altered position. Each man is asking for several forms of relief, including back pay, damages for lost benefits, compensatory damages, punitive damages and reasonable attorney fees and costs.

The case is scheduled to go to trial later this month.

Piersol denied the city of Mitchell's request to exclude three expert medical witnesses from testifying at the trial.

In May, Piersol granted the city's request to dismiss the age discrimination claims.

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