Western Distributing to Pay $919,000 in EEOC Disability Discrimination Lawsuit

DENVER – Western Distributing Co., a corporate conglomerate consisting of at least 15 companies, including Western Distributing Transportation Company, United States Armored Co. (USAC) and Western Towing and Recovery, will pay $919,000 to former employees and furnish other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s lawsuit, Western discriminated against individuals with disabilities, mostly over-the-road truck drivers, through multiple corporate policies. Western’s full-duty policy required individuals to be released from any and all medical restrictions in order to work, regardless of whether the individual could work with or without a reasonable accommodation. Western also maintained a policy of firing employees if they could not return from Family and Medical Leave Act (FMLA) leave within 12 weeks, even if they could have returned with a short extension or other accommodation. Western’s decision to fire employees often came with little to no warning, as employees received notice about their termination through a letter in the mail.

Such alleged conduct violated the Americans with Disabilities Act (ADA), which requires employers to provide a reasonable accommodation to individuals with disabilities unless doing so would cause an undue hardship. The ADA also requires employers to engage in an interactive process with employees to determine if they can return to work with medical restrictions. Rigid policies that automatically discharge employees without consideration as to an accommodation risk running afoul of the ADA.

The case dates back to 2009, when Clinton Kallenbach, a former Western local truck driver, took FMLA leave after needing open heart surgery. Per Department of Transportation guidance, Kallenbach needed to refrain from driving for at least three months before returning to commercial driving. Although his own cardiologist cleared him to work, Western required Kallenbach to receive clearance from its medical examiner before returning to work. Western’s examiner could not see Kallenbach within the 12 weeks of permitted FMLA leave, so Kallenbach needed a nine-day extension of medical leave as a reasonable accommodation to allow him to be cleared to work. Western denied the accommodation and instead fired him pursuant to its corporate policies.

Western’s policies also became problematic when the company instituted a number of testing and physical requirements. One test required its drivers to be able to lift 50 pounds to shoulder height, which was intended to replicate a driver putting on tire chains during snowstorms. Tire chains, however, typically only weigh 25 pounds, and Colorado’s laws permit use of alternate traction devices in addition to tire chains. The EEOC’s suit charged that Western violated the ADA by requiring drivers to lift 50 pounds.

In January 2023, a three-week jury trial in Denver resulted in a split verdict. The Denver jury found that Western’s full-duty policy violated the ADA, and that the EEOC did not establish a pattern or practice of discrimination. During the trial, the EEOC presented testimony from Western’s former safety director, who acknowledged Western implemented the testing requirements to screen out individuals with pre-existing medical conditions. The EEOC also presented corporate emails from Western’s CEO, who expressed concerns about rehiring individuals who previously filed workers compensation claims.

The parties were scheduled to resume a second phase of litigation when they reached a settlement through a four-year consent decree, which includes $919,000 in monetary relief for 60 victims of discrimination. The decree also requires Western to undergo mandatory ADA training; hire a monitor to oversee and report further acts of discrimination to the EEOC; ensure its corporate policies are compliant with the ADA; and conduct annual validation of its physical requirements for its drivers.

“Full-duty and inflexible leave policies unlawfully seek to prevent workers from returning to work,” said Mary Jo O’Neill, regional attorney for the EEOC’s Phoenix District Office. “Companies should focus on supporting and retaining employees with disabilities, not finding ways to push them out.”

Karl Tetzlaff, lead senior trial attorney for the Denver Field Office, said, “This settlement brings about a long-awaited resolution for drivers who had cancer, heart attacks or other disabilities and were unjustly fired for medical conditions out of their control, but who could have come back to driving with an accommodation.”

The EEOC was represented in-house by trial attorneys Karl Tetzlaff, Michael LaGarde, Lauren Duke, Jeff Lee, and Assistant Regional Attorneys Rita Byrnes Kittle and Laurie Jaeckel.

For more information on disability discrimination, please visit https://www.eeoc.gov/disability-discrimination.

The EEOC’s Phoenix District Office has jurisdiction over Colorado, Arizona, Utah, Wyoming, and parts of New Mexico.

The EEOC is the sole federal agency authorized to investigate and litigate against businesses and other private sector employers for violations of federal laws prohibiting employment discrimination. For public sector employers, the EEOC shares jurisdiction with the Department of Justice’s Civil Rights Division; the EEOC is responsible for investigating charges against state and local government employers before referring them to DOJ for potential litigation. The EEOC also is responsible for coordinating the federal government’s employment antidiscrimination effort. More information about the EEOC is available at www.eeoc.gov.

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