COM., DEPT. OF TRANSP. v. Tinsley

564 A.2d 286, 128 Pa. Commw. 594, 2 Am. Disabilities Cas. (BNA) 506, 1989 Pa. Commw. LEXIS 635
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 27, 1989
Docket1542 C.D. 1988
StatusPublished
Cited by5 cases

This text of 564 A.2d 286 (COM., DEPT. OF TRANSP. v. Tinsley) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
COM., DEPT. OF TRANSP. v. Tinsley, 564 A.2d 286, 128 Pa. Commw. 594, 2 Am. Disabilities Cas. (BNA) 506, 1989 Pa. Commw. LEXIS 635 (Pa. Ct. App. 1989).

Opinions

PALLADINO, Judge.

The Department of Transportation (DOT) appeals an order of the Court of Common Pleas of Delaware County which reinstated the school bus driver license of Elizabeth C. Tinsley (Tinsley). We affirm in part and reverse in part.

Tinsley has been a school bus driver for Rose Tree Media School District (District) for eighteen years. In December 1985, Tinsley was diagnosed a diabetic. Tinsley currently takes hypoglycemic medication to control her blood sugar level.

By a letter dated September 11, 1987, DOT recalled Tinsley’s school bus driving privileges pursuant to Section 1519(c) of the Vehicle Code, 75 Pa.C.S. § 1519(c), which requires DOT to recall the operating privileges of any person whose incompetency has been established. Tinsley was found to be incompetent under 67 Pa.Code § 71.3,1 which prohibits a person having an established history or clinical diagnosis of diabetes which requires the use of insulin or any other hypoglycemic drug from being a school bus driver. Tinsley appealed this recall to the trial court.

After a de novo hearing, the trial court found that DOT’s recall of Tinsley’s school bus operating privileges violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Rehabilitation Act).2 The trial court reinstated Tins[597]*597ley’s operating privileges upon the conditions that: (1) the District, or a physician selected or approved by the District, perform a blood prick test on Tinsley each day which she is to drive a school bus prior to operating such vehicle, (2) if the testing should reveal that her diabetic condition is not under control, the District is to suspend her immediately and she is to remain suspended until further order from the trial court, and (3) a copy of the blood test results is to be sent to DOT.

On appeal,3 DOT argues that the trial court erred in permitting Tinsley to raise the Rehabilitation Act in an appeal of a license recall; that Tinsley is not an “otherwise qualified” individual under the Rehabilitation Act; and that the trial court did not have the authority to reinstate the motorist’s license subject to certain conditions.

DOT first contends that because the Rehabilitation Act creates an independent cause of action, it can only be raised in a proceeding brought under this court’s original jurisdiction. It is DOT’s contention that to permit the raising of the Rehabilitation Act in an appeal of a license recall would place an undue burden on DOT because it has no forewarning that this issue will be raised and it would be forced to defend such collateral causes of action at the common pleas level.

Initially we note that Tinsley raised the Rehabilitation Act to attack the validity of the regulation under which her license was recalled. DOT’s argument would require us to hold that a licensee could not challenge the validity of the regulation on appeal from a license recall. As a result, we [598]*598would be required to enforce invalid regulations. This we are unwilling to do. Accordingly, in In re Stober, — Pa.Commonwealth Ct. —, 524 A.2d 535 (1987), (Stober I), aff'd on reargument, 119 Pa.Commonwealth Ct. 156, 546 A.2d 155 (1988), we acknowledged that the Rehabilitation Act could be used to invalidate a regulation in a license recall appeal.

To establish a cause of action under the Rehabilitation Act, Tinsley was required to prove that: (1) she is a “handicapped individual” under the Rehabilitation Act; (2) she is “otherwise qualified” for the position sought; (3) she was excluded from the position sought solely by reason of her handicap; and (4) the program or activity in question receives federal financial assistance. Stober I, at —, 524 A.2d at 537.

It is uncontested that Tinsley is a handicapped individual within the meaning of the Act; that her school bus operating privileges were recalled because of the handicap; and that DOT is the recipient of federal financial assistance. Therefore, the sole issue with regard to the applicability of the Rehabilitation Act is whether Tinsley is an “otherwise qualified” individual within the meaning of the act.

An “otherwise qualified” individual, is one who meets all of the requirements of a job in spite of a handicap. Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). A person who does not meet all of the qualifications of a job is otherwise qualified if accommodation by the federal recipient would not alter the essential nature of the program or cause an undue burden on the federal recipient. Id. In a Rehabilitation Act case, a trial court must evaluate the condition of the handicapped individual to determine if that individual is otherwise qualified. School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). Thus in Arline, the fact that a teacher was suffering from tuberculosis, a contagious disease, was not sufficient to sustain the teacher’s suspension. The Supreme Court remanded the case for a determination based, [599]*599on the facts of the illness and its effects on the teacher, of whether accommodating the teacher would require a modification of the essential nature of the program or impose an undue burden on the employer (the recipient of federal funds).

The essential nature of the school bus licensing program is to prevent any and all appreciable risks that would prevent a school bus driver from controlling the students and safely operating the bus. Stober I. DOT contends that diabetics are an appreciable risk because a deviation from a daily routine of medication could result in an impairment of the bus driver’s ability to provide for the safety of the passengers. DOT’s speculation about the possible effects of diabetes is not appropriate. The proper inquiry must be directed to Tinsley herself and the effects of her handicap upon her job performance. Arline.

In the case at bar, it is undisputed that Tinsley’s blood sugar level has been under control since shortly after she was diagnosed a diabetic in December 1985. Dr. Diwan testified that Tinsley’s blood sugar level could be accurately tested, by a blood prick test, to determine whether her diabetes is under control. This test can be performed and the results obtained in approximately 80 seconds.

We can not agree that accommodation of Tinsley would either alter the essential nature of the program or be an undue burden on DOT. As previously noted, Tinsley’s diabetes has been under control since her release from the hospital. Furthermore, the District has indicated that it would be willing to administer the blood prick test to ensure that Tinsley’s diabetic condition remains under control and to suspend her if her condition is not under control. As a result, DOT would not be under any greater burden. The District is also willing to send the blood test results to DOT. Although DOT would not have direct daily control over the tests, it does not ordinarily have direct contact with any licensee, e.g.

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564 A.2d 286, 128 Pa. Commw. 594, 2 Am. Disabilities Cas. (BNA) 506, 1989 Pa. Commw. LEXIS 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-dept-of-transp-v-tinsley-pacommwct-1989.