Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—Del. Super. Ct.: Jury to decide if bus operator, given Percocet at hospital, was unlawfully fired, (May 29, 2025)

By Marjorie Johnson, J.D.

The record established that the employer knew before requiring the post-accident drug test that he had received medication and disregarded his testimony to that effect at his pretermination hearing.

A bus operator will get a trial on his claim that Delaware Transit Corporation (DTC) and Delaware Authority for Regional Transit (DART) violated the Delaware Persons With Disabilities Employment Protections Act (DPDERA) by terminating his employment due to a positive drug test following an accident in which he was injured and administered an opiate for pain at the hospital. Denying summary judgment against him, a federal court found that triable issues existed as to the appropriateness of the drug test under the circumstances, whether he was “regarded as having an impairment,” and whether the proffered reason for his firing was pretextual (Aikens v. Delaware Transit Corp., No. N22C-11-075 FWW (Del. Super. Ct. May 27, 2025)).

Given Percocet after accident. The bus operator filed the instant action against Delaware DTC and DART (collectively, “the employer”). He claimed that, after he was injured in an on-the-job motor vehicle accident that was not his fault, he was taken to the hospital and given Percocet to help relieve his pain. Meanwhile, a supervisor responded to the scene of the accident and determined that it fell under the employer’s drug and alcohol policy and that a post-accident test was required.

Tests positive for opiates. The supervisor required that the employee undergo the drug test while he was still at the hospital, and he tested positive for opiates. He claimed that he explained to the supervisor that the positive result for a controlled substance was a result of the Percocet he had been given at the hospital. Nonetheless he was suspended without pay pending the outcome of a predetermination hearing.

Terminated. At the hearing, the employee’s attorney stated that the positive test result was attributable to Percocet that he was given at the hospital but provided no documentation. Following the hearing, the employer notified the employee in writing that he had been terminated for violating its drug and alcohol policy. The letter explained that he had failed to provide any documentation supporting his claim that he was administered Percocet at the hospital prior to his drug test. During discovery, he produced a billing statement from the hospital seeming to show he was administered it in the emergency room.

Lawsuit. The employee filed this lawsuit alleging the employer violated the DPDERA by unlawfully regarding him as disabled when it administered him a drug test without a reasonable suspicion and concluding he was suffering from the disability of drug addiction which substantially limited his ability to drive. He also disputed the legitimacy of the employer’s proffered reason for terminating him, claiming that the policy as applied to him and others violated the DPDERA.

Noting that the parties did not dispute that the employee was otherwise qualified to operate a bus and that he suffered an adverse employment action, the court examined whether he presented sufficient evidence that the employer unlawfully regarded him as disabled and whether it discharged him based on a physical examination that was not directly related to the essential functions of the job.

“Other examinations.” Looking to the text of DPDEPA, the court explained that employers are prohibited from “discharge[ing] or tak[ing] other discriminatory action against a qualified person with a disability on the basis of physical, mental or other examinations that are not directly related to the essential functions of the job.” Here, regardless of whether the bus operator’s drug test was a medical exam, “it certainly was an ‘other examination.’” Accordingly, two fundamental factual determinations were at issue here: (1) whether the bus operator’s drug test was “directly related to the essential functions of the job” and (2) whether he was “qualified person with a disability.”

“Directly related to essential functions.” There was no dispute that an essential function of being a bus operator is not being under the influence of drugs, explained the court. Testing an operator for the presence of drugs under the appropriate circumstances, without doubt, can be directly related to the essential functions of the job. However, it also can be unrelated to those essential function when administered in inappropriate circumstances. “The discriminatory effect of the policy, vel non, is ancillary to that factual determination.”

Appropriateness of test? Given the particular facts of this case, the court found that a triable issue existed as to whether the drug test was appropriate. If a jury were to find that testing the bus operator, under the circumstances he was tested, was not directly related to the essential functions of his ability to operate a bus, he would partially establish his prima facie case of disability discrimination. On the other hand, a contrary finding would not support discrimination.

Qualified person. As part of his prima facie case, the bus operator also created a triable issue as to whether he was a qualified person with a disability since the employer “regarded him as having an impairment.” This determination was also fact sensitive and would follow to a large degree the jury's factual findings regarding the drug test.

Pretext. Under McDonnell Douglas, the burden shifted to the employer to offer nondiscriminatory reasons for their actions, and its reliance on his failed drug test met that burden. In response, he presented sufficient evidence from which a jury could find the rationale for terminating him was pretextual. In particular, he pointed to evidence that the employer knew before he was given the drug test that he had received opiate medication in the hospital and disregarded his testimony to that effect at his pretermination hearing.

The case is No. N22C-11-075 FWW.

Judge: Wharton, F.

Attorneys: Michelle D. Allen (Allen & Associates) for Michelle Aikens. Sehr Rana, Office of the Deputy Attorney General, for Delaware Transit Corp.

Companies: Delaware Transit Corp.

Cases: DisabilityDiscrimination Discrimination Discharge StateLawClaims DelawareNews