Aikens v. Delaware Transit Corporation

• Court: Superior Court of Delaware
• Decided: May 27, 2025
• Docket: N22C-11-075 FWW
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MICHAEL AIKENS, ) ) Plaintiff, ) ) C.A. No. N22C-11-075 FWW v. ) ) DELAWARE TRANSIT CORPORATION ) and DELAWARE AUTHORITY FOR ) REGIONAL TRANSIT, ) ) Defendants. )

Submitted: March 24, 2025 Decided: May 27, 2025

Upon Defendants’ Motion for Summary Judgment, DENIED

Upon Plaintiff’s Partial Motion [sic] for Summary Judgment DENIED

MEMORANDUM OPINION

Michelle D. Allen, Esquire, ALLEN & ASSOCIATES, 4250 Lancaster Pike, Suite 230, Wilmington, DE 19805, Attorney for Plaintiff Michael Aikens.

Sehr Rana, Esquire, Deputy Attorney General, DEPARTMENT OF JUSTICE, 820 North French Street, 6th Floor, Wilmington, DE 19801, Attorney for Defendants Delaware Transit Corporation and Delaware Authority for Regional Transit.

WHARTON, J. I. INTRODUCTION

This case involves a claim of disability discrimination brought by Plaintiff

Michael Aikens (“Aikens”) against his employers Defendants Delaware Transit

Corporation (“DTC”) and Delaware Authority for Regional Transit (“DART”)

(collectively “Defendants”). Aikens was a bus operator employed by the

Defendants. The gravamen of the Complaint is that the Defendants terminated him

after unlawfully regarding him as disabled due to a positive drug test following an

accident in which he was injured. Aikens and the Defendants have each moved for

summary judgment. After carefully considering the motions and supporting briefs,

the Court concludes there are genuine issues of material fact a jury must resolve.

Accordingly, both motions for summary judgment are DENIED.

II. FACTS AND PROCEDURAL HISTORY

Aikens brought this disability discrimination action on November 8, 2022.1

The Complaint now consists of a single count of Discrimination in Violation of the

Delaware Persons with Disabilities Employment Protections Act (“DPDERA”)

under 19 Del. C. § 720 et. seq.2 Aikens alleges that while working for Defendants

1 Compl., D.I. 1. 2 Id. The Complaint alleges a second count of Breach of the Implied Covenant of Good Faith and Fair Dealing, but Aikens agreed to dismiss that count in response to the Defendants’ earlier Motion to Dismiss. Pl’s Opp. to Defs.’ to Dismiss at ⁋ 13, D.I. 23. 2 as a bus operator, he was injured in a motor vehicle accident which was not his fault.3

He was taken to the hospital for medical attention and while there was given Percocet

for the pain he was experiencing from the accident.4 After receiving the Percocet, a

representative of the Defendants required Aikens to undergo a post-accident drug

test while he was still at the hospital.5 The drug test showed a positive result for a

controlled substance which Aikens explained to the Defendants’ representative was

a result of the Percocet he had been given in the hospital. 6 Nonetheless, he was

suspended without pay pending the outcome of a pre-termination hearing and

ultimately terminated effective July 30, 2021 for failing the post-accident drug test.7

Aikens alleges that the Defendants unlawfully regarded him as disabled due to the

positive drug test and terminated him.8 Following his termination, Aikens filed a

Charge of Discrimination with the Delaware Department of Labor and Equal

Employment Opportunity Commission and, on August 10, 2022, received a “Notice

of Right to Sue” from the Department of Labor.9 This action was brought within 90

days of Aikens’ receipt of the Right to Sue Notice. 10

3 Compl. at ⁋⁋ 11-13, D.I. 1. 4 Id. at ⁋⁋ 15-16. 5 Id. at ⁋ 17. 6 Id. at ⁋⁋ 18-19. 7 Id. at ⁋⁋ 20-21. 8 Id. at ⁋⁋ 23. 9 Id. at ⁋⁋ 6-7. 10 Id. at ⁋ 8. 3 In the discovery phase of this case, depositions were taken of Jonathan Phillips

(“Phillips”), a DART Street Supervisor, Chief Human Resources Officer Diana

Ferrell (“Ferrell”), and Aikens.11 Phillips responded to the scene of the accident and

determined that the accident fell under DART’s Drug and Alcohol Policy 23.10

(“Policy”) and that a post-accident test was required.12 Aikens then was drug tested

at the hospital where he was being treated for injuries he sustained in the accident.13

Aikens tested positive for opioids.14 Ferrell attempted to contact Aikens numerous

times and sent him a referral for an employee assistance provider because she

thought federal regulations required her to do so due to the sensitive nature of

Aikens’ position.15 Aikens admitted receiving an inquiry from DART asking for a

reason for the positive result. 16 Based on the Policy, Aikens was suspended without

pay effective June 17, 2021 pending the outcome of a pre-termination hearing. 17

At that hearing on July 30th, counsel for Aikens told the DTC that the positive

test result was attributable to Percocet that Aikens was given at the hospital, but

counsel provided no documentation. 18 By letter dated August 11, 2021, DTC

11 Id. at ⁋ 2. 12 Id. at ⁋ 6. 13 Id. at ⁋ 7. 14 Id. 15 Id. 16 Id. at ⁋ 8. 17 Id. 18 Id. at ⁋ 9. 4 notified Aikens that he was terminated effective July 30, 2021, the date of his pre-

termination hearing, for violating DTC’s Drug and Alcohol Policy. 19 The letter

explained that Aikens had failed to provide any documentation supporting his claim

that he was administered Percocet at the hospital prior to his drug test.20 It seems

Aikens later was able to produce in discovery a billing statement from the hospital

showing “Oxycodone/Acetamin 1 EA Tab” which Aikens represents is the Percocet

he was administered in the emergency room. 21

Aikens disputes that he ever received a referral for an employee assistance

provider. 22 He adds that Ferrell admitted that he was terminated in part for failing

to contact the employee assistance provider or to return the required release form.23

Otherwise, there is no real dispute about the underlying facts, which is not to say

that the parties agree on how to characterize those facts.

Both Aikens and the Defendants move for summary judgment. Briefing on

the motions was completed on March 24, 2025.

III. STANDARD AND SCOPE OF REVIEW

Superior Court Civil Rule 56(c) provides that summary judgment is

appropriate if, when “there is no genuine issue as to any material fact and that the

19 Id. 20 Id. 21 Id. 22 Pl.’s Resp. at ⁋ 6, D.I. 62. 23 Id. 5 moving party is entitled to a judgment as a matter of law.”24 The moving party

initially bears the burden of demonstrating that the undisputed facts support its

claims or defenses.25 If the moving party meets its burden, the burden shifts to the

non-moving party to show that there are material issues of fact to be resolved by the

ultimate fact-finder.26 When considering a motion for summary judgment, the

Court’s function is to examine the record, including “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any,” in the light most favorable to the non-moving party to determine whether

genuine issues of material fact exist “but not to decide such issues.” 27 Summary

judgment will only be appropriate if the Court finds there is no genuine issue of

material fact. When material facts are in dispute, or “it seems desirable to inquire

more thoroughly into the facts, to clarify the application of the law to the

circumstances,” summary judgment will not be appropriate.”28 However, when the

24 Super. Ct. Civ. R. 56(c); Buckley v. State Farm Mut. Auto. Ins. Co., 139 A.3d 845, 847 (Del. Super. Ct. 2015), aff'd, 140 A.3d 431 (Del. 2016) (quoting Moore v. Sizemore, 405 A.2d 679, 680 (Del.1979). 25 Sizemore, 405 A.2d at 681. 26 Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995). 27 Super. Ct. Civ. R. 56(c); Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992). 28 Ebersole v. Lowengrub, 180 A.2d 467, 468-60, (Del. 1962) (citing Knapp v. Kinsey, 249 F.2d 797 (6th Cir. 1957)). 6 facts permit a reasonable person to draw but one inference, the question becomes

one for decision as a matter of law.29

In order to establish a disability discrimination claim, Aikens must show that:

(1) he has a disability or handicap within the meaning of DPDERA; (2) he was

otherwise qualified to perform the essential functions of the job, with or without

accommodation from DART; and (3) he suffered an adverse employment action as

a result of discrimination. 30 It is well-settled that Delaware courts have adopted the

burden shifting framework set forth in McDonnell Douglas v. Green 31 to analyze

discrimination claims. 32 Under this framework, Aikens must first establish a prima

facie case of discrimination. Aiken’s burden in establishing a prima facie case “is

not particularly onerous.”33 If he succeeds in establishing a prima facie case, the

burden shifts to the Defendants to proffer “legitimate non-discriminatory” reasons

for their actions.34 If the Defendants meet this burden, the burden again shifts to

Aikens to demonstrate that the Defendants’ rationale is pretextual. Pursuant to

Fuentes v. Perskie, in order to demonstrate that the Defendants’ rationale is

29 Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967). 30 Id. (citing Polak v. Sterilite Corp., 2011 WL 1753757 (N.D. Tex. May 4, 2011). 31 411 U.S. 792 (1973) 32 Miller v. State of Delaware, Dep't of Pub. Safety, 2011 WL 1312286, at *12 (Del. Super.). 33 Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 369 (3d Cir. 2008). 34 See, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). 7 pretextual, Aikens must “point to some evidence, direct or circumstantial from

which a factfinder could reasonably either (1) disbelieve the employer’s articulated

legitimate reasons; or (2) believe that an invidious discriminatory reason was more

likely than not a motivating determinative cause of the employer’s actions.”35 “[T]o

avoid summary judgment, the plaintiff’s evidence rebutting the employer’s proffered

legitimate reasons must allow a factfinder reasonably to infer that each of the

employer’s proffered non-discriminatory reasons was either a post hoc fabrication

or otherwise did not actually motivate employment action (that is the proffered

reason is a pretext).” 36

IV. THE PARTIES’ CONTENTIONS

A. The Defendants’ Motion

1. In their motion, the Defendants argue that summary judgment is

appropriate because Aikens: (1) fails to adduce any direct evidence of

discrimination; (2) fails to establish that he was regarded as disabled under the

DPDERA; and (3) the positive drug test was a legitimate non-discriminatory reason

for Aikens’ termination.37 Defendants argue that Aikens has presented no direct

evidence of discrimination, thus necessitating that the Court undertake the McDonell

35 32 F.3d 759, 764 (3d. Cir. 1994). 36 Harding v. Careerbuilder, LLC, 168 Fed. Appx. 535, 537 (3d Cir.) (quoting Fuentes, 32 F.3d at 764). 37 Defs.’ Mot. for Summ. J., D.I. 57. 8 Douglas burden shifting analysis. 38 Here, Defendants conclude under that analysis,

there was no discrimination – only innocuous practices. 39

Next, the Defendants argue that Aikens fails to establish that he was regarded

as disabled under DPDERA. Under DPDERA, a “person with a disability” does not

include anyone whose employment, by reason of current drug abuse, would

constitute a direct threat to property or safety of others.40 Aikens argues he is

regarded as a person with a substantially limiting impairment because, although not

impaired, he was regarded by the Defendants as having a substantially limiting

impairment.41

In the Defendants’ view the facts do not support a conclusion that they

regarded Aiken as substantially impaired. When Phillips administered the drug test

to Aikens, he had no information suggesting that Aikens had an impairment – he

was just following normal protocol.42 Aikens was not regarded as having an

impairment, but was regarded simply as an employee subject to certain terms of

employment, which included being subject to drug testing. 43 Further, since the

38 Id. at ⁋ 12, D.I. 57. 39 Id. at ⁋ 13. 40 Id. at ⁋ 15. 41 Id. at ⁋ 17. 42 Id. at ⁋ 19. 43 Id. 9 Defendants were only aware of a single failed drug test, there is no evidence to

suggest they viewed Aikens as an illegal drug user. 44

Finally, the Defendants contend they are entitled to summary judgment

because Aiken’s failed drug test is a legitimate non-discriminatory reason for his

termination. Ensuring that their bus operators are free from illegal drugs by testing

them after accidents is a legitimate safety measure.45 There is no evidence that the

tests were applied in a discriminatory manner.46

Aikens disputes the Defendants’ contention that they did not regard him as a

disabled person. He argues that the Defendants’ Policy, as applied, resulted in Akins

being administered a drug test simply because the bus was in motion when the

accident occurred without any reasonable suspicion that he was impaired. 47 By

requiring drug tests without reasonable suspicion of impairment, the Policy

preemptively regards all drivers involved in accidents resulting in death or bodily

injury requiring hospitalization as being impaired.48 DPDERA does not permit post-

accident medical examinations as set forth in the Policy. 49 The Defendants regarded

Aikens as disabled when they administered him a drug test without reasonable

44 Id. at ⁋ 20. 45 Id. at ⁋ 22. 46 Id. 47 Pl.’s Resp. at ⁋ 3, D.I. 62. 48 Id. 49 Id. at ⁋ 4. 10 suspicion and by concluding he was suffering from the disability of drug addiction

which substantially limited his ability to drive.50

Akins also disputes the legitimacy of the Defendants proffered non-

discriminatory reason for terminating him. This argument, like the foregoing one,

is based on Aikens’ contention that the Policy, as applied to him and others, violates

DPDERA.51 Under the Americans with Disabilities Act (“ADA”), post-accident

drug testing is considered a medical examination, and, as such, requires the employer

to show it is “job-related and consistent with business necessity.52 But, DPDERA

does not contain an exception for medical examinations that are “job-related and

consistent with business necessity.”53 The ADA’s requirement that a medical

examination be consistent with business necessity is an objective one and

unwarranted examinations are not saved by the employer’s subjective belief in the

necessity.54 Because the Defendants admit they terminated Aikens for violating the

Policy, and because the Policy can only be described as discriminatory, a reasonable

trier of fact could conclude that the Defendants failed to provide a non-

discriminatory justification for terminating Aikens.55

50 Id. at ⁋ 5. 51 Id. at ⁋ 11. 52 Id. (quoting EEOC v. U.S. Steel Corp., 2013 WL 625315 (W.D. Pa Feb. 20, 2013). 53 Id. at n. 14. 54 Id. 55 Id. at ⁋ 18. 11 The Defendants make two points in reply. First, there is no evidence that they

regarded Aikens as disabled.56 Here, Phillips could not discount that Aikens

contributed to the accident because he was not stationary and “almost

mechanical[ly]” applied the Policy. 57 There are no facts to support the conclusion

that Phillips considered Aikens as having a substantially limiting impairment.58

Similarly, other than the one positive drug test, Farrell had no knowledge of Aikens

and made what she considered a mandatory referral to an employee assistance

program. 59 Second, the post-accident drug test was not a medical examination

prohibited by the ADA because it served the business necessity of safety. 60

B. Aiken’s Motion for Summary Judgment

In his summary judgment motion, Aikens again presses his argument that the

Defendants’ Policy related to post-accident testing, as applied, “is discriminatory on

its face as it constitutes an impermissible medical examination, and thereby regards

those employees involved in an accident as disabled.61 DPDERA prohibits an

employer from discharging an employee on the basis of physical, mental or other

examinations that are not related to essential job functions.62 The ability of

56 Defs.’ Reply at I, D.I. 72. 57 Id. at ⁋ 9. 58 Id. 59 Id. at ⁋ 10. 60 Id. at II. 61 Pl.’s Part. [sic] Mot. for Summ. J., D.I. 59. 62 Id. at ⁋ 11. 12 employers to subject employees to medical examinations is limited to circumstances

referenced in 19 Del. C. § 724(f) et seq.63 Akins contends that the Policy fails to

meet any of the statutorily enumerated exceptions.64

Even if the Policy meets one of the limited exceptions, Aikens argues that the

Defendants have failed to meet their burden of showing that the medical examination

was objectively job-related and consistent with business necessity.65 An employee

need not be disabled to challenge a medical examination.66 According to Aikens,

the Policy, as applied, is broader and more intrusive than business necessity requires,

and thus discriminatory, because post-accident drug testing is required without an

individualized reasonable suspicion of a safety concern.67

In order to establish his claim for disability discrimination Aikens agrees he

must show he was disabled within the meaning of DPDEPA; he was otherwise

qualified to perform the essential functions of the job; and he suffered an adverse

employment decision as a result of discrimination.68 He argues that there is no

dispute that he has met those criteria. First, despite the fact that he actually was not

a drug user, Aikens contends that the Defendants regarded him as disabled.69 “An

63 Id. at ⁋ 12. 64 Id. 65 Id. at ⁋⁋ 13, 14. 66 Id. at ⁋ 15. 67 Id. at ⁋ 19. 68 Id. at 21. 69 Id. 13 individual who ‘is erroneously regarded as engaging in illegal drug use but is not

engaged in such use’ is regarded as disabled if the employer perceived the plaintiff

as substantially limited in a major life activity because of the alleged drug use.”70

The fact that the Defendants required him to submit to a medical examination for

drugs without an independent medical basis demonstrates they regarded him as

disabled.71 Because they regarded him as disabled, the Defendants discriminated

against him when they took the adverse job action of terminating him. 72 Finally,

even assuming the Defendants can provide a non-discriminatory reason for the

Policy, they discriminated against him when they deviated from the Policy by failing

to engage in the interactive process following his positive drug test.73

The Defendants oppose the motion. They argue that unlike the federal ADA,

DPDERA does not contain a broad prohibition on medical examinations. 74 Instead,

medical examinations are expressly permitted under 19 Del. C. § 724(f)(4).75 Since

Aikens’ claim is brought under DPDERA and not ADA, arguments regarding the

propriety of medical examinations are irrelevant.76 Nevertheless, if the Court were

to read ADA’s prohibition on medical examinations into DPDERA, ADA’s

70 Id. at ⁋ 23 (quoting 42 U.S.C. § 42114(b)(3)). 71 Id. at ⁋ 24. 72 Id. at ⁋ 25. 73 Id. 74 Defs.’ Resp. at ⁋ 9, D.I. 61. 75 Id. 76 Id. 14 regulations do not categorize a test to determine the illegal use of drugs as a medical

examination.77

The Defendants reject Aikens’ argument that the Policy under which the drug

test was administered was discriminatory as applied to him. 78 The decision to

administer the test was made without a particularized reference to Aikens but was

based on the circumstances of the accident. 79 Phillips made no assumptions about

Aikens, but rather, administered the test in accordance with the Form.80

In reply, Aikens acknowledges that ADA and DPDERA are not identical, but

insists DPDERA offers an employee more protections. 81 DPDERA does not

specifically prohibit medical examinations, but it does prohibit employers from

discharging qualified employees with a disability on the basis of physical

examinations that are not directly related to the essential functions of the job. 82 He

finds the Defendants’ reliance on 19 Del. C. § 704(f)(4) to support medical

examinations misplaced because that section only applies to preemployment tests.83

Therefore, he concludes DPDERA prohibits the examination administered to him.84

77 Id. at ⁋⁋ 10-13. 78 Id. at ⁋⁋ 14-15. 79 Id. at ⁋ 15. 80 Id. 81 Pl.’s Reply at ⁋ 6, D.I. 71. 82 Id. 83 Id. at ⁋ 7. 84 Id. at ⁋⁋ 16-28. 15 Finally, in his Reply brief he reasserts his contentions that the Policy was

discriminatory on its face and as applied to him.85

V. DISCUSSION

Aikens brings his claim under DPDERA. In order to prove a disability

discrimination claim, Aikens must show that: (1) he had a disability as defined by

DPDERA; (2) he was otherwise able to perform the functions of the job; and (3) he

suffered an adverse employment action as a result of discrimination. The dispute in

this case is joined on the questions of whether Aikens had a DPDERA defined

disability and whether his termination was the result of discrimination. There is no

real question that Aikens was otherwise qualified to operate a bus and that he

suffered an adverse employment action. It is an unlawful employment practice

under DPDERA for an employer to discharge a qualified person with a disability

because of the disability. 86 It is also an unlawful employment practice to discharge

a qualified person with a disability on the basis of a physical examination that is not

directly related to the essential functions of the job.87

A good starting point in analyzing the parties’ summary judgment motions is

to review relevant definitions under that act. Specifically, ‘“Disability’ means any

condition or characteristic that renders a person a person with a disability as defined

85 Id. at 80. 86 19 Del. C. § 724(a)(2). 87 19 Del. C. § 724(a)(5). 16 in this section.”88 A “Person with a disability” includes a person who is regarded as

having an impairment.89 ‘“Is regarded as having an impairment’ means an

individual that establishes the individual subjected to an action prohibited under this

chapter because of an actual or perceived physical or mental impairment whether or

not the impairment limits or is perceived to limit a major life activity. Such

impairment does not include impairments that are transitory and minor.” 90 ‘“Person

with a disability’ shall not include any individual who is an alcoholic or drug abuser

whose current use of alcohol or drugs prevents such individual from performing the

duties of the job in question or whose employment, by reason of such current alcohol

or drug abuse, would constitute a direct threat to property or the safety of others.” 91

‘“Qualified person with a disability’ means a person with a disability who, with or

without reasonable accommodation, can satisfactorily perform the essential

functions of the job in question.”92

With those definitions in mind, the Court turns to the McDonnell Douglas

burden shifting analytical framework to assess the merits of the parties’ summary

88 19 Del. C. § 722(2). 89 19 Del. C. § 722(4)(c). 90 19 Del. C. § 722(4)(c)(3). “This term is intended to be interpreted in conformity with the federal Rehabilitation Act of 1973 [29 U.S.C. § 701 et. seq.], as amended, and, consistent with § 728 of this title, shall be further defined by the Secretary through regulation to clarify and delimit its scope following adequate public notice and comment.” 91 19 Del. C. § 722(4)(c)(5). 92 19 Del. C. § 722(5). 17 judgment motions. In doing so the Court examines the record in the light most

favorable to the non-moving party in each motion to determine if there are genuine

issues of material fact.

Initially, Aikens must carry the burden of establishing a prima facie case of

disability discrimination. His argument is fourfold. First, the Defendants’ Policy,

as applied, is discriminatory on its face as it constitutes an impermissible medical

examination thereby regarding all employees involved in accidents as disabled.93

Only in the limited circumstances set out in 19 Del.C. § 724(f) may an employer

require or request a medical examination of an employee and Aikens’ situation is

not one of them.94 Second, even assuming arguendo that a the Policy meets one of

the exceptions, it was discriminatorily applied to Aikens, because, objectively, the

test was not “job-related and consistent with business necessity.” 95 In Aikens case,

because the policy did not require or permit an individualized determination of a

reasonable suspicion of a safety concern before he was subjected to a medical

examination, the Policy was discriminatorily applied as to him. 96 Third, Aikens was

regarded as disabled because the Defendants perceived him to be him substantially

impaired in a major life activity because of the alleged drug use by requiring him to

93 Pl.’s Part. [sic] Mot. for Summ. J. at ⁋ 10, D.I. 59. 94 Id. at ⁋ 12. 95 Id. at ⁋⁋ 13-14. 96 Id. at ⁋⁋ 18-19. 18 submit to a drug test without an individualized reasonable basis to do so.97 Fourth,

the Defendants discriminated against Aikens when they failed to follow the Policy’s

requirement to engage in any interactive process by referring him to an employee

assistance program.98

With respect to examinations of employees, DPDEPA prohibits an employer

from “discharge[ing] or tak[ing] other discriminatory action against a qualified

person with disability on the basis of physical, mental, or other examinations that

are not directly related to the essential functions of the job.”99 Whether Aikens’ drug

test was a medical examination, or not, it certainly was an “other examination.”

Therefore, DPDERA requires that it be “directly related to the essential functions of

the job.” In this case, DPDERA requires at least two fundamental factual

determinations – whether Aikens’ drug was “directly related to the essential

functions of the job” and whether he was a “qualified person with a disability.”

There can be no doubt that one of the essential functions of operating a bus is

that the operator not be under the influence of drugs. Testing an operator for the

presence of drugs under the appropriate circumstance, without doubt, can be directly

related to the essential functions of the job. It also can be unrelated to those essential

97 Id. at ⁋⁋ 22-24. 98 Id. at ⁋ 29. 99 19 Del. C. § 724(a)(5). 19 job functions when administered in inappropriate circumstances. The discriminatory

effect of the Policy, vel non, is ancillary to that factual determination.

The Court finds that a determination of the appropriateness of the test under

the particular facts of this case is a genuine issue of material fact for the jury to

decide. Put another way, if the jury finds that testing Aikens, under the

circumstances he was tested, was not directly related to the essential functions of

operating a bus, Aikens has partially established a prima facie case of disability

discrimination. A contrary finding would not support discrimination.

Next, Aikens must make a prima facie showing that he is a qualified person

with a disability. He can do so by showing that the Defendants “regarded him as

having an impairment.” 100 A determination of whether the Defendants regarded

Aikens as disabled also is fact sensitive and follows to a large degree the jury’s

finding of facts regarding the drug test. Nevertheless, Aikens has made at least a

prima facie showing that the Defendants regarded him as having an impairment.

As a result, Aikens has made a prima facie case of disability discrimination.

Under McDonnell Douglas, the burden now shifts to the Defendants to offer non-

discriminatory reasons for their actions. Their reliance on Aikens failed drug test

meets that burden.

100 19 Del. C. § 722(4)(c). 20 Finally, the burden shifts back to Aikens to show the Defendants’ rationale

for terminating him was pretextual. The Court finds that he has met that burden by

highlighting facts in the record that establish that the Defendants knew before Aikens

was given the drug test that he had received medication in the hospital and by

disregarding his testimony to that effect at his pre-termination hearing.

When examining the record in the light most favorable to the non-moving

party in each motion, the Court finds genuine issues of material fact exist so as to

preclude summary judgment on the issue of whether Aikens has established a prima

facie case of discrimination and whether the Defendants’ rationale for terminating

him was pretextual.

THEREFORE, the Motion for Summary Judgment of Defendants Delaware

Transit Corporation and Delaware Authority for Regional Transit is DENIED.

Plaintiff Michael Aikens’ Partial Motion [sic] for Summary Judgment also is

DENIED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton Ferris W. Wharton, J.