                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 15-1273


JOHN D. LISOTTO,

                Plaintiff - Appellant,

           v.

NEW PRIME, INC., d/b/a Prime, Inc.,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.    Mary G. Lewis, District Judge.
(3:13-cv-02407-MGL)


Argued:   March 22, 2016                     Decided:   May 3, 2016


Before SHEDD, THACKER, and HARRIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Rebecca Guental Fulmer, LAW OFFICES OF WILMOT B. IRVIN,
Columbia, South Carolina, for Appellant.    Reginald Wayne
Belcher, TURNER PADGET GRAHAM & LANEY P.A., Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            John D. Lisotto (“Appellant”) filed an Americans with

Disabilities Act (“ADA”) claim against Appellee New Prime, Inc.

(“Prime”) after Prime failed to hire him as a truck driver.

Prime,   contending        that    Appellant       should       have       exhausted      his

administrative remedies with the Federal Motor Carrier Safety

Administration (“FMCSA”), moved to dismiss the complaint.                                 The

district     court    agreed       and     dismissed      the     complaint          without

prejudice.

             The   FMCSA    regulation          upon   which     the       district    court

relied contemplates “a disagreement between the physician for

the driver and the physician for the motor carrier concerning

the   driver’s       qualifications.”             49     C.F.R.        §    391.47(b)(2).

However,     because       the    parties        did     not     “disagree[]”          about

Appellant’s qualifications at the time Prime denied employment

to    Appellant,      49     C.F.R.        § 391.47(b)(2)         is        inapplicable.

Therefore, we vacate the district court’s judgment and remand.

                                           I.

            Appellant’s          complaint        sets       forth         the    following

allegations,       which   we     accept    as    true.         See    Johnson       v.   Am.

Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015).

            On     August        19,     2010,     Appellant,          an        experienced

commercial    truck    driver,         applied    for    a     driver       position      with

Prime.     Appellant began “trucking” in 1971 and had around seven

                                            2
years’      experience          as     a       long-distance            truck       driver       hauling

gasoline, diesel fuel, and ethanol throughout the United States.

J.A. 6. 1      At the time of his application to Prime, Appellant was

employed       as    a    correctional            officer       for          the    South    Carolina

Department of Corrections, earning around $30,000 a year.

               On August 27, 2010, a recruiter from Prime, Sheryl

Lindsay, sent            Appellant         an    email    stating            he    was   approved       to

attend    Prime’s         orientation            program      in    Springfield,             Missouri.

Lindsay       also   explained          that      as     part      of    the       hiring    process,

Appellant would be required to pass a physical examination and

drug screen in accordance with FMCSA standards.                                      Lindsay bought

Appellant a one-way bus ticket to Springfield and explained that

after a successful orientation, he would receive his assigned

truck and drive back to South Carolina to work out of Columbia.

               Appellant         had       a    sleep    disorder         “believed         to    be    or

diagnosed      as    narcolepsy.”                J.A.    7.        In    anticipation            of    his

physical       and       drug    screen,          he    obtained         a        letter    from       his

physician, Dr. Crook.                  The letter explained that Appellant took

Dexedrine, a type of amphetamine, to manage the sleep disorder.

Dr.   Crook     opined          “that      the     prescribed           medication          would      not

adversely       affect      [Appellant’s]               ability         to    safely       operate      a



          1
          Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.



                                                   3
commercial motor vehicle, as [Appellant] had for many years been

driving commercial trucks safely . . . while taking [Dexedrine]

and had experienced no problems with narcolepsy.”      Id. at 10-11.

          On September 22, 2010, Appellant, having quit his job

with the Department of Corrections, travelled to Springfield for

orientation.    He reported for his physical examination and drug

test and explained to Prime’s medical examiner, Dr. Abraham,

that he was taking Dexedrine “to address a condition believed to

be or diagnosed as narcolepsy.”       J.A. 10.    He gave Dr. Abraham

the letter from Dr. Crook and showed him his prescription for

Dexedrine.     Dr. Abraham did not determine that Appellant was

unqualified for the position because he had narcolepsy; rather,

he noted that Appellant “needs to be off Dexedrine at least 1

month.”   Id. at 11 (alteration omitted).         Dr. Abraham further

noted that Provigil is the “[o]nly med[ication] . . . taken for

narcolepsy” that Prime would accept, and Appellant “need[ed] to

be on it for at least 6 weeks [and] document[] [his] stability”

before beginning employment with Prime.     Id.

          Appellant returned to orientation, and about an hour

later, one of Prime’s nurses called Appellant out of his session

and told him “he could not work for Prime because he had tested

positive for amphetamines.”   J.A. 11.     Echoing Dr. Abraham, the

nurse said Prime would accept truckers taking Provigil, but not

Dexedrine, and instructed him to return home and take Provigil

                                  4
for six weeks to see how it would affect him.                           Appellant left

Springfield    and   went     back    to   South       Carolina    to     comply     with

Prime’s directives.

             Two days later, on September 24, 2010, Prime’s Medical

Review Officer (“MRO”), Dr. Mauldin, phoned Appellant and stated

“he needed to hear from [Appellant’s] doctor about his medical

condition    and   prescribed    medication.”            J.A.     11;    see    also    49

C.F.R.   §   40.129(a)(4)     (when    a       drug   test     result    is    positive,

before     “verify[ing]”      the     test,       an     MRO     must     “conduct       a

verification interview [which] must include direct contact in

person or by telephone between [the MRO] and the employee”); 2 id.

§ 40.131(a) (“When . . . the MRO . . . receive[s] a confirmed

positive . . . test result from the laboratory, [he or she] must

contact the employee directly . . . on a confidential basis, to

determine     whether   the     employee         wants    to     discuss       the   test

result.”).     Dr. Mauldin claimed that if he did not hear from

Appellant’s doctor within five days, he would report “a positive

drug test for amphetamines” to the Department of Transportation

(“DOT”).     J.A. 11.      Appellant called his physician, Dr. Crook,

“right away,” and explained Dr. Mauldin’s request.                             Id.     Dr.

Crook phoned Dr. Mauldin on September 27, but no one answered



     2 The term “employee” includes “applicants for employment
subject to pre-employment testing.” 49 C.F.R. § 40.3.



                                           5
the call.    He “persisted in trying to reach Dr. Mauldin but was

never able to reach him or anyone else in his office.”     Id. at

20.

            On September 27, 2010, Dr. Crook changed Appellant’s

medication to Provigil, and he experienced no detrimental side

effects.     On November 1, Appellant called Lindsay and told her

he had complied with Dr. Abraham’s and the nurse’s directives.

Lindsay forwarded the call to Prime’s personnel office, and an

employee in that office told him, “You cannot work for Prime

because you tested positive for amphetamines” and hung up.    J.A.

12.

            On November 19, 2010, Appellant wrote to Dr. Mauldin,

asking that he “reevaluate the circumstances of the drug test he

had taken during his physical on September 22, 2010.”     J.A. 12,

30.   Appellant explained,

            I am not saying the test was incorrect, it
            was correct.     However I was under [Dr.
            Crook’s] care and he tried to contact your
            office numerous times and could not reach
            anyone and get an answer. . . .

            [Dr. Crook] changed my medication to one
            acceptable to your office and the [DOT]
            . . . .

            Thank you for your consideration.   This is
            effecting [sic] my career and my livelihood
            through no fault of my own.

Id. at 30.     Dr. Mauldin finally responded via letter nearly two

months later, on January 12, 2011, stating, “Even though you had

                                 6
a   prescription       for   amphetamines,       in     my    opinion        you       have   a

disqualifying      medical       condition     since      narcolepsy       is      a    safety

concern.”       Id. at 12 (the “Mauldin Letter”).

            After       receiving      the      Mauldin            Letter,      Appellant

participated in a sleep study and learned “that he did not have

narcolepsy but experienced ‘moderate obstructive sleep apnea.’”

J.A. 13.        After beginning to use a breathing machine at night,

he no longer needed medication to stay awake.                        On May 25, 2013,

Appellant wrote to Dr. Mauldin, explaining that he no longer

needed medication, and forwarded the results of the sleep study.

He closed the letter, “[W]ould you please consider clearing my

name   so   I    can   drive     again!”       Id.     at    31.      He     received         no

response.

            Thereafter, Appellant applied for other truck driving

positions, but he was unable to obtain employment.                          One employer

told him his company “could not hire him because he had a record

of abusing amphetamines.”            J.A. 13.          Appellant became homeless

and    “suffered       extreme    emotional      distress.”            Id.             He   was

eventually able to obtain another job paying near minimum wage.

            After receiving a right-to-sue letter from the Equal

Employment Opportunity Commission, Appellant filed suit in the

District of South Carolina on September 5, 2013.                           Prime filed a

motion to dismiss, contending: (1) Appellant failed to exhaust

administrative         remedies      pursuant        to      49      C.F.R.        § 391.47

                                           7
(providing       that      the       FMCSA     resolves     “conflicts          of     medical

evaluation” where “a disagreement [exists] between the physician

for     the    driver      and       the     physician     for     the        motor    carrier

concerning the driver’s qualifications”); and (2) Appellant was

not   a    “qualified       individual”         under     the     ADA,    see     42    U.S.C.

§ 12112(a).

               On August 28, 2014, the district court adopted the

recommendation        of       the     magistrate        judge     and        dismissed    the

complaint without prejudice because Appellant failed to exhaust

administrative remedies as required by 49 C.F.R. § 391.47(b)(2).

The district court declined to address Prime’s argument that

Appellant      is    not   a     “qualified        individual.”          On    September    2,

2014, Appellant filed a motion to alter or amend the judgment

pursuant to Rule 59(e) and also asked for stay of the district

court’s decision.           The district court denied both requests, and

Appellant filed a timely notice of appeal.

                                              II.

               We review de novo the district court’s dismissal of a

complaint.       See SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d

412, 422 (4th Cir. 2015).                    “[W]e accept as true all well-pled

facts     in   the   complaint        and     construe     them    in    the     light    most

favorable      to    [Appellant].”            United     States     v.    Triple       Canopy,

Inc., 775 F.3d 628, 632 n.1 (4th Cir. 2015).                         We must also draw



                                               8
“all reasonable inferences in [Appellant’s] favor.”                                   DeMasters

v. Carilion Clinic, 796 F.3d 409, 421 (4th Cir. 2015).

            The magistrate judge and district court both believed

that Appellant’s claim should have first been presented to the

FMCSA because the dispute involved a “disagreement” between Dr.

Crook, Appellant’s physician, and Dr. Mauldin, Prime’s MRO.                                      But

Appellant    claims       there       was      no      “disagreement”;           rather,       Prime

discriminated against him because Prime failed to hire him based

on an erroneously verified positive drug test, and “MRO Mauldin

failed to correct his verified positive drug test result and

downgrade    it     to   negative,          pursuant         to    regulatory      procedure.”

Appellant’s       Br.    20;    see       also      49      C.F.R.      § 40.123(a)      (An     MRO

“[a]ct[s]     as    an    independent             and       impartial      ‘gatekeeper’         and

advocate    for    the    accuracy          and        integrity      of   the    drug    testing

process.”); id. § 40.137(a) (An MRO “must verify a confirmed

positive test result for . . . amphetamines . . . unless the

employee    presents       a    legitimate               medical      explanation        for    the

presence    of     the   drug[]       .    .   .       in   his    or    her   system.”);       id.

§ 40.123(c)        (An    MRO     “must          determine           whether      there    is     a

legitimate medical explanation for confirmed positive . . . drug

tests results from the laboratory.”).

            We agree with Appellant.                          First, the complaint can

only be read to lodge an ADA claim based on conduct leading up



                                                   9
to Prime’s failure to hire him in November 2010.                           For example,

Appellant alleges that Prime violated the ADA by

            •     refusing to hire him, even though he
                  complied with Dr. Mauldin’s request for
                  more information regarding his medical
                  qualifications,   and  even   though  that
                  information showed his narcolepsy had been
                  under control for many years;

            •     refusing to hire him because he tested
                  positive for amphetamines;

            •    failing   to    accept   his   physician’s
                 explanation for the positive drug test;

            •    failing to proceed with the hiring process
                 in light of the information from Dr.
                 Crook,    and    insisting    he    change
                 medications;

            •    reporting a positive drug test; and

            •    failing to correct the false drug test
                 report made to the FMCSA, DOT, or others.

See J.A. 14-15.         Appellant does not allege that Prime failed to

hire    Appellant       because     of    the     Mauldin    Letter,       or   that   Dr.

Mauldin         reported      his         concerns        regarding         Appellant’s

qualifications to Prime.            Therefore, any opinion Dr. Mauldin may

have had about Appellant’s qualifications did not serve as a

basis for Prime’s refusal to hire him.

            Having       properly        framed     the     basis    for    Appellant’s

claim, we next observe that in the time leading up to November

2010,   there     was    no   “disagreement”         about     Appellant’s       medical

qualifications.            There    is     no     question     Dr.    Crook     believed

                                            10
Appellant was medically qualified if he took proper medication.

And the only reasonable inference to be drawn from the complaint

is that Prime did not reject Appellant’s application outright

because     he    had     narcolepsy;         rather,     Prime     anticipated        that

Appellant    would       return    to       orientation    and    be    considered         for

employment       once    he     successfully         switched     his    medication         to

Provigil.        In     fact,    Prime      told    him   as    much.     See       J.A.    11

(Dr. Abraham told Appellant he “need[ed] to be on [Provigil] for

at least 6 weeks [and] document[] [his] stability.”); see also

id.   (“[T]he      nurse        [stated]      that    [Prime]     would       accept       the

medication       Provigil,       but    not     Dexedrine.”).           Therefore,         Dr.

Abraham   agreed        with     Dr.    Crook      that   Appellant      was    medically

qualified for employment with Prime, as long as he took proper

medication.

            Because        Appellant’s          claim     is      not    based        on     a

disagreement between physicians, but rather, on Prime’s failure

to hire Appellant due to his positive drug test, cases upon

which Prime relies are of no import.                           See, e.g., Harris v.

P.A.M. Transp., Inc., 339 F.3d 635, 639 (8th Cir. 2003) (Where

company’s physicians and medical review staff disagreed with a

third party physician’s conclusions that a prospective driver

was   medically       certified        to   drive,    “[a]ccording       to    49    C.F.R.

§ 391.47(b)(2), that disagreement brings the question of [the

driver]’s physical qualification within the sole province of the

                                              11
DOT.”); Campbell v. Fed. Express Corp., 918 F. Supp. 912, 918

(D. Md. 1996) (“In a case where there are conflicting medical

evaluations, such as the conflict [the driver] faced between

[two separate companies’] examination outcomes, the driver may

submit an      application      for    resolution       of   the   conflict     to   the

[FMCSA].” (emphasis supplied)); Hill v. Houff Transfer, Inc.,

No. 3:12-cv-357, 2012 WL 5194080, at *3 (E.D. Va. Oct. 19, 2012)

(driver’s      physician       “disagree[d]”         with    third-party     physician

about his qualifications to remain a commercial truck driver,

and thus, “[section] 391.47’s procedures appl[ied]”).

              The discrete issue before us is more akin to the issue

presented     in     Stevens    v.    Coach   U.S.A.,       wherein   a   bus   driver,

Stevens, took a medical leave of absence from his duties with

Coach, U.S.A. (“Coach”).               See 386 F. Supp. 2d 55 (D. Conn.

2005).    Stevens’s physician and Coach’s medical examiner both

cleared him to return to work.                 See id. at 58-59.           But before

Coach allowed him to return on a permanent basis, it “sent him

through a series of hurdles that prevented his medical fitness

from   ever    being    determined.”           Id.    at    65.    The    District    of

Connecticut concluded 49 C.F.R. § 391.47(b)(2) was inapplicable

because       “the     crux      of     Stevens’        complaint”        “cannot     be

characterized as ‘a disagreement between the physician for the

driver and the physician for the motor carrier.’”                         Id. (quoting



                                          12
49 C.F.R. § 391.47(b)(2)).        “[H]urdle[]”-jumping, rather than

medical disagreement, is precisely what happened here.           Id. 3

                                  III.

          For   the   foregoing   reasons,   we   vacate   the    district

court’s judgment and remand for further proceedings. 4



                                                  VACATED AND REMANDED




     3  After the district court’s dismissal of the complaint,
FMCSA’s Office of Chief Counsel issued an opinion letter, which,
though not binding on this court, is in accord with our
decision.    The letter states that the FMCSA does not have
“provisions for administrative review procedures that would
address   [Appellant’s]  grievances  .   .  .   .”     J.A.  79.
Specifically, the FMCSA believed “[t]he record does not contain
evidence of a present conflict concerning [Appellant’s] medical
qualifications . . . .” Id.
     4  After oral argument, Appellant filed a motion to
supplement the record on appeal. See Mot. Suppl. R. on Appeal,
Lisotto v. New Prime, Inc., No. 15-1273 (4th Cir. Mar. 22,
2016), ECF No. 44. We deny this motion as moot.



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