Rainey

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BRODERICK K. RAINEY CIVIL ACTION

VERSUS NO: 25-2047

MARATHON PETROLEUM COMPANY LP SECTION: KWR

ORDER AND REASONS

Before the Court is Marathon Petroleum Company LP’s Motion for Reconsideration

of the June 17, 2026, Order and Reasons or in the Alternative, for Certification of

Interlocutory Appeal and to Stay Proceedings Pending Appeal. ( R. doc. 21). The Motion is

opposed. (R. doc. 27) Marathon filed a reply. ( R. doc. 28.)

I. Introduction

A. Factual Summary

Plaintiff, Broderick K. Rainey, (“Rainey”) suffers with chronic kidney disease and IgM

nephropathy, an autoimmune disorder that causes kidney damage and related problems. R. Doc. 1

at 4. Rainey treated his nephropathy through a combination of medication, regular doctor’s visits

for blood work, and self-administered peritoneal dialysis once per day either manually or using a

portable machine. Id. at 5.

Rainey was to begin employment with Marathon Petroleum Company LP (“Marathon”)

in 2023 as a professional light product transport driver in Garyville, Louisiana. R. Doc. 1 at 3, ¶¶8.

According to the Complaint, his full-time employment was conditioned upon him passing a pre-

employment physical. Id. at 6, ¶29. On April 12, 2023, Marathon rescinded his job offer claiming

he failed the pre-employment physical. Id. at 7, ¶36.

On November 8, 2023, within 300 days of the revocation of Rainey’s employment offer

he filed an EEOC Charge of Discrimination.1 Id. at 3, ¶12. On July 3, 2025, the EEOC issued a

notice of right to sue. Id., ¶13.

Rainey alleged that his condition was well controlled with dialysis and therefore did not

limit his ability to perform all the essential duties of the job offered by Marathon. R. Doc. 1 at 5,

¶22. Rainey also alleges that he was medically cleared to work in his job assignment and that he

did not have any restrictions. Id., ¶23-24. Alternatively, Rainey alleges that he was capable of

performing the job with reasonable accommodations of periodic rest breaks and time off to attend

routine doctor’s appointments or perform dialysis on himself between shifts. Id., ¶28. Rainey

alleges that he objectively and medically passed the pre-employment physical and satisfied all

DOT regulatory requirements to be deemed physically qualified to drive a commercial vehicle. Id.

at 6-7, ¶31-32.

Rainey contends that his job offer was revoked due to bias against his kidney disease and

dialysis treatment protocol. Id. at 7, ¶¶34-36. Rainey claims that Marathon accepted the physician’s

assistant’s examination report without objective or medical substantiation. Id. at 34-36, ¶13.

Rainey after the alleged discrimination, suffered significant out of pocket expenses, damages, costs

and attorney’s fees. Id. at 11, ¶47. He filed the instant suit against Marathon under the Americans

with Disabilities Act on September 30, 2025. See R. Doc. 1.

B. Subject Motion

Marathon filed the subject motion seeking a review of the Court’s denial of its Motion to

Dismiss Rainey’s ADA disability claim and “regarded as” claim. Marathon contends that the Court

committed four errors. First, it contends that the Court’s distinguishing of Williams v. J.B. Hunt

1 The EEOC field office has a work sharing agreement with the Louisiana Commission on Human Rights (“LCHR”).

R. Doc. 1. LCHR automatically accepted the filing and referred it to EEOC for processing.

Transport, Inc., 826 F. 3d 806 (5th Cir. 2016) was improper because it was based on a purported

categorical/non-categorical distinction not found in the Federal Motor Carrier Safety Regulations.

Second, Marathon contends that the Court wrongly relied upon Rodrigues v. ConAgra Grocery

Products Co., 436 F.3d 468, 477 (5th Cir. 2006) because it is a pre-Twombly/Iqbal summary

judgment decision that was outside the DOT medical-certification framework.

Third, it contends that the reference to the individualized assessment doctrine invoked in

the Order predated the regulations and substitutes judicial second-guessing for a quality-control

judgment the Order never engaged. Finally, Marathon contends that the Court’s refusal to apply

Williams at the Rule 12(6) stage is irreconcilable with Turner v. BNSF Railway Company, 138

F.4th 224 (5th Cir. 2025), which affirmed dismissal at the pleading stage on the same predicate

facts Rainey asserts here. Alternatively, Marathon seeks permission to file an interlocutory appeal

regarding the legal questions are genuinely debatable rather than clearly erroneous and satisfies

the “substantial grounds for difference of opinion. An additional issue raised by Marathon is that

the Court referenced a nonexistent regulation.

II. Standard of Review

The Fifth Circuit has noted that the Federal Rules “do not recognize a ‘motion for

reconsideration’ in haec verba.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167,

173 (5th Cir.1990). However, the Court has consistently recognized that such a motion may

challenge a judgment or order under Federal Rules of Civil Procedure 54(b), 59(e), or 60(b). Rules

59 and 60, however, apply only to final judgments. Id. Therefore, when a party seeks to revise an

order that adjudicates fewer than all the claims among all of the parties, Federal Rule of Civil

Procedure 54(b) controls. 2

The Rule states:

[A]ny order or other decision, however designated, that adjudicates fewer than all

the claims or the rights and liabilities of fewer than all the parties does not end the

action as to any of the claims or parties and may be revised at any time before the

entry of a judgment adjudicating all the claims and all the parties' rights and

liabilities. Fed. R. Civ. P. 54(b).

Under Rule 54(b), the district court “possesses the inherent procedural power to

reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.”

Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981). However, this broad discretion must

be exercised sparingly in order to forestall the perpetual reexamination of orders and the resulting

burdens and delays. Id. Further, the decision of the district court to grant or deny a motion for

reconsideration will only be reviewed for an abuse of discretion. Martin v. H.M.B. Constr. Co.,

279 F.2d 495, 496 (5th Cir. 1960) (citation omitted). See also Garcia v. Woman's Hosp. of Tex.,

97 F.3d 810, 814 (5th Cir. 1996).

The general practice of courts in this district has been to evaluate Rule 54(b) motions

to reconsider interlocutory orders under the same standards that govern Rule 59(e) motions to alter

or amend a final judgment. Id. A Rule 59(e) motion “calls into question the correctness of a

judgment,” Gulf Fleet Tiger Acquisition, L.L.C. v. Thoma-Sea Ship Builders, L.L.C., 282 F.R.D.

146 ( E.D. La. 2012) and courts have considerable discretion in deciding whether to grant such a

motion. Id. In exercising this discretion, courts must carefully balance the interests of justice with

2 Fed. R .Civ. P. 54(b). See also Helena Labs. v. Alpha Scientific Corp., 483 F.Supp.2d 538 (E.D. Tex. Apr. 20,

2007) (motion for reconsideration under Rule 59(e) treated as under Rule 54(b) because reconsideration of partial

summary judgment order was sought and no final judgment had yet been entered in the case).

the need for finality. Id. Courts in the Eastern District of Louisiana have generally considered four

factors in deciding a motion under the Rule 59(e) standard:

(1) the motion is necessary to correct a manifest error of law or fact upon which the

judgment is based;

(2) the movant presents newly discovered or previously unavailable evidence;

(3) the motion is necessary in order to prevent manifest injustice; or

(4) the motion is justified by an intervening change in controlling law.

See, e.g., Castrillo v. American Home Mortg., No. 09-4369, 2010 WL 1424398 at *4 (E.D. La.

Apr. 5, 2019) (citations omitted).

Although Rules 59 and 60 set forth specific time frames during which reconsideration

may be sought, Rule 54 sets forth no such limitation. Id. However, importantly, Rule 54(b)

motions, like those under Rules 59(e) and 60(b), are not the proper vehicle for rehashing evidence,

legal theories, or arguments. Instead, they “serve the narrow purpose of allowing a party to correct

manifest errors of law or fact or to present newly discovered evidence.” Gulf Fleet Tiger, 282

F.R.D. at 153.

III. Analysis

Marathon contends that the legal issue for the Court to decide is whether an employer is

required to disregard a determination that an applicant is medically unqualified to drive

commercial vehicles hauling highly flammable petroleum products. Marathon complains that the

Court misapplied Williams v. J.B. Hunt Transport, Inc. 826 F.3d 806 (5th Cir. 2016), for the

proposition that because Rainey failed to pass the examination, he cannot assert an ADA claim.

Marathon contends that because the order did not cite Turner v. BNSF Ry. Co., 138 F.4th

224 (5th Cir. 2025) the Court’s order cannot be reconciled with the recent circuit opinion.

Additionally, Marathon suggests that the Court applied an “individualized assessment”, relying on

Rodrigues v. ConAgra Grocery Products Co., 436 F.3d 468 (5th Cir. 2006), an opinion which

predates Ashcroft v. Iqbal, 556 U.S. 662 (2009) , the conclusion would be foreclosed by Iqbal and

the Court did not apply Iqbal.

According to Marathon, the Court wrongly credited plaintiff’s bare allegation that the

examiner lacked medical justification without requiring any supporting factual content. In its reply,

Marathon points out that the Court relied upon a non-existent regulation in its ruling requiring the

medical examiner to explain its decision. R. doc. 28.

Rainey contends that Marathon’s motion is moot because it has filed its Amended

Complaint which alleges that at the time Marathon revoked his offer, he already possessed a valid

medical certification issued to him by a federally certified DOT medical examiner, Dr. Joseph J.

Patrick M.D. R doc. 22, ¶17a. Rainey also contends that Marathon’s rehashed legal arguments

lack merit because it adds nothing new to the opinion. Id. Rainey further contends that each of

Marathon’s arguments fail for various reasons. Id.

Considering the importance of the issue presented, the Court will reconsider its Order of

June 17, 2026. Marathon contends that the “individualized assessment” doctrine referenced in the

undersigned’s Order predates the Federal Motor Carrier Safety Administration’s (“FMCSA”) 2012

National Registry of Certified Medical Examiners. R. doc. 21. The Rule, according to Marathon,

transformed the DOT medical certification into a federally mandated, competency-tested,

nationally standardized framework which if not complied with amounts to a bar from asserting a

ADA claim.

The FMCSA provides safety oversight to commercial motor carriers, and under FMCSA

regulations, a motor carrier may not allow a driver to operate a commercial motor vehicle if the

driver may suffer from an impairment that makes it unsafe for her to operate the vehicle. Doc. 41-

1 at 3 (citing 49 C.F.R. § 392.3). To comply with that requirement, the employer must generally

adhere to the FMCSA Medical Guidelines regarding drivers' qualifications. Id. FMCSA review is

merely a process for resolving disputes between medical examiners about a driver's physical

qualifications. There is no mandatory exhaustion requirement for an ADA plaintiff in the Fifth

Circuit. See Williams v. J.B. Hunt Transport, 826 F.3d 806 (5th Cir. 2016) ( where the Court held

no statute requires an ADA plaintiff exhaust the §391.47 process before filing a lawsuit nor does

it do so in jurisdictional terms); see also Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2016)

(“Plaintiffs' failure to exhaust their administrative remedies does not deprive this court of subject

matter jurisdiction over Plaintiffs' APA claims ... [because] [w]here an intra-agency appeal is

optional ... the APA does not require a plaintiff to appeal prior to filing suit in federal court”).

A. Categorical/ Non-Categorical Distinction

Marathon complains that the Court denied its request for dismissal based on an express

distinction between the condition the claimant had in Williams and Rainey’s kidney disease which

constitutes error. Marathon claims that there is no such distinction based on the regulations. R.

doc. 21-1. Marathon also claims namely that its ME could have relied upon §391.41(b)(9) which

it suggests is precisely what occurred here: the examiner evaluated Plaintiff’s end-stages renal

disease and daily peritoneal dialysis and found that he was not physically qualified. See R.doc. 21,

P. 7.

Rainey contends that the Court’s finding that the regulations did not automatically

disqualify Rainey’s condition is textually correct. Rec. doc. 27. Rainey contends that the Federal

Motor Carrier Safety Administrations, Medical Examiner’s handbook does not require automatic

disqualification for drivers suffering from kidney disease. Id.

Under the ADA, an employer may apply “qualification standards” for a position as long as

those standards are “job-related and consistent with business necessity.” 42 U.S.C. § 12113(a).

More specific to the case at bar, courts have consistently held that an employment action based

upon an employee's or prospective employee's inability to satisfy DOT medical standards does not

violate disability discrimination laws. See Albertson's Inc. v. Kirkingburg, 527 U.S. 555, 573, 119

S.Ct. 2162, 144 L.Ed.2d 518 (1999) (holding that an employer may, consistent with the ADA,

apply DOT's physical qualification standards to its employees); Campbell v. Federal Express

Corp., 918 F.Supp. 912 (D. Md. 1996) (holding it is “undisputable that [the defendant employer]

may rely on DOT regulations as a defense to an ADA discrimination claim”).

Marathon contends that the Court in relying on the regulations medical classification was

error when it determined that it was not clear if the physician’s assistant complied with the

regulations regarding dialysis. R. doc. 21-1. Instead, Marathon uses a category set forth in

§391.41(b)(9). This section of the regulation provides §391.41(b)(9) has no mental, nervous,

organic, or functional disease or psychiatric disorder likely to interfere with his/her ability to drive

a commercial motor vehicle safely. Id.

However, suggesting that the physician’s assistant used §391.41(b)(9), is no less a class/

category or type of disease. Regarding the usage of this section as proposed by Marathon, the Court

located two cases that give guidance on its usage. Notably, Marathon cites to none referring to

§391.41(b)(9). Furthermore, nor does the complaint refer to this category/classification of

condition other than dialysis.

Regulations issued by the Department of Transportation (“DOT”) provide that a person

shall not drive a commercial motor vehicle if he or she has a “mental, nervous, organic, or

functional disease or psychiatric disorder likely to interfere with his/her ability to drive a

commercial motor vehicle safely.” 49 C.F.R. § 391.41(a), (b)(9). Doctors who perform the exam

must be familiar with the physical and mental demands associated with driving a commercial

motor vehicle.

Part of the exam is to “detect the presence to physical, mental, or organic defects of such a

character and extent as to affect the applicant's ability to operate a commercial motor vehicle

safely.” 49 C.F.R. § 391.47. For example, in Madonia v. Mavo Leasing, No. 98-601, 2000 WL

420743 (N.D. Ill., Eastern Div. Apr. 13, 2000) plaintiff, a truck driver whose arm and back were

injured by a malfunctioning power jack and who inhaled antifreeze fumes at work, began having

outbursts at work. After his emotional outburst, he was terminated. Applying §391.41(b)(9), the

plaintiff was denied a certification because it was determined that he was suffering major

depression and related paranoia due to the fear that he was being poisoned by antifreeze. After

resolving his grievance and reinstatement to work, his lack of self-control returned and he was

terminated. Later, plaintiff filed suit.

The only other instance that the Court found using §391.41(b)(9) is Vaughn v. FedEx

Freight, Inc., 421 F. Supp.3d 1302 (N.D. Ala., NW Div. Oct. 10, 2019) where the issue was

whether a driver who had a “brief psychotic break” could return to work. The court in Vaughn

noted that before the medical exam, the doctor was sent an email with the FMSCA Medical

Guideline regarding major depression (a category) and the driver’s attempted suicide.

Section 391.41(b)(9) has been used for mental disorders not dialysis. Whether the medical

examiner relied on §391.41(b)(9) as Marathon suggests, is not clear from the record before the

Court. Practically speaking, the regulations may be applied once the disease category is identified

and thereafter to consider the functional limitations based on the condition. See R.doc. 21, P. 7.

This basis for reconsideration alone does not warrant reversal.

B. Williams and Turner: the Conflict?

i. Williams v. J.B. Hunt

Marathon next contends that the Court should dismiss Rainey’s ADA claim because

Rainey failed to follow the certification guidelines for operation of a commercial vehicle as he was

required to follow the procedures set forth in 49 C.F.R. § 391.47, governing “Resolution of

Conflicts of Medical Evaluation.” Specifically, Marathon contends that Rainey should have sought

resolution of conflicts of medical evaluation pursuant to 49 C.F.R. § 391.47. While principally that

rule is correct, whether it applies at this stage of the litigation is the question. Marathon contends

that the Court can take their suggestion that Rainey did not exhaust and dismiss his complaint at

the pleading stage. However, as explained below, Williams and Turner do not stand for this

proposition without needing evidence beyond the pleadings.

In the district court in Williams v. J.B. Hunt Transp., Inc., No. 13-CV-02510 (S.D. Tex.,

Houston Div. Sept. 22, 2015), the matter was originally before Judge Harmon on a Motion to

Dismiss, and in the Alternative, Motion for Summary Judgement.3 See 13-CV-02510, R. doc. 27,

09/22/15. According to the opinion, Williams was a First Seat Truck driver for the J.B. Hunt

Transport, Inc. who took temporary leave from work and obtained medical treatment for syncope

and ventricular tachycardia, which had been eliminated as a cause of his fainting after he

3 The motion was a twenty two page motion with fifty one(51) pages of exhibits. The exhibits included a declaration

from Todd Davis, the Director of safety for J.B. Hunt Transport, R. doc. 14-1., the J.B. Hunt Transport 2010 Driver

Manual Exhibit 14-1, Medical Records ( filed under seal), the Letter from the DOT-doctor rescinding the certification,

Communications between J.B. Hunt and Williams regarding his certification, the Leave of Absence Policy and

Williams deposition. R. doc. 14-3, Williams application for unemployment benefits that he was not able to work R.

doc. 14-4. And a copy of Cliburn v. CUSA KBC, LLC, 2007 U.D. Dist. LEXIS 86637 addressing a similar issue where

the court dismissed the ADA claim and remanded the case to the state court. In Cliburn, the employer did not certify

the plaintiff for driving after reviewing his return-to-duty form, medical exam form and medical records following

hospitalization. Also attached to the defendant’s motion was a copy of Myers v. J.B.Hunt Transport, 2006 U.S. Dist.

Lexis 86916.

underwent a heart catheterization. R.doc. 27, 11. Williams claimed that he exhausted his

administrative remedies, but the defendant disagreed with respect to his fitness to drive. Id.

According to a declaration submitted as evidence, when Williams was hired, he was

provided a copy of the DOT’s Federal Motor Carrier Safety Regulations (“FMCSR”). Id. 23. The

Court noted that the defendant’s summary of the facts, supported by documents, was more detailed

than Williams. Id. at. 24. By declaration of Davis the Director of Safey, when Williams missed

work due to illness or injury he was required by the rules to have a DOT-certified physician review

his physical qualifications and certify him to drive a tractor-trailer before he could return to his job

of trucking. Id. at. 24. After detailing the conflict in the medical certifications, the district court

noted that Williams was seen by another doctor who informed him that his certification was being

rescinded.

According to Davis, Williams never gave them any additional medical documentation, nor

did he file an appeal application for determination of his medical qualifications pursuant to 49

C.F.R. §391.47. Id. Williams was on personal leave of absence after exhausting his FMLA leave

and remained until certified to return to work by a DOT physician or until he exhausted his

available leave. Id. The employer sent six different letters warning Williams that if he could not

return to work by the end of his leave time, his employment would be administratively terminated

according to policies. Id. at. 27.

Williams was never medically certified to return to work because he never took steps to

resolve the conflict of opinion between his personal physician and the DOT-Certified physician.

After Williams failed to conduct discovery, except participating in a deposition, and based upon

the posture of the suit, the defendant claimed that there was no genuine issue of material fact

because Williams failed to exhaust. After addressing Williams’s failure to exhaust, the lack of

discriminatory animus, and his admission made while seeking unemployment benefits that he

could not perform his normal work due to his medical condition, the district court determined that

he was not qualified for his job. Id. at.32.

Williams appealed the district court’s dismissal of his claim. Notably, the appellate court

had a copy of the entire district court file when it rendered its decision. The Circuit Court affirmed

the district court’s grant of summary judgment. In doing so, the Court noted that Williams pointed

to no evidence that he ever submitted additional medical documentation to J.B. Hunt or Concentra.

The Court also noted that he never filed an application for the DOT to resolve any conflict between

medical evaluations pursuant to 49 C.F. R. §391.47. While the Circuit Court reversed on Subject

Matter Jurisdiction grounds, the Court reiterated that “no statute required exhaustion.” Id. (citing

Henderson v. Shinseki, 562 U.S. 428, 435, 131 S. Ct. 1197, 17 L. Ed. 2d 159 (2011). The Fifth

Circuit affirmed on the alternative grounds of summary judgment. As noted, the Court in Williams

had affirmative evidence of his failure to exhaust which is not present here.

ii. Turner v. BNSF Railway Company

Next the Court turns to Turner v. BNSF Railway Company, Case 4:23-cv-00681-P, (N.D.

Tex. June 30, 2023). Turner was originally filed in the Northern District of Texas Fort Worth

Division before District Judge Mark Pittman. See Case 4:23-cv-00681, Rec.doc. 1. According to

Turner’s complaint, he alleged that the FRA did not require trainmen to have perfect color vision

to be licensed but instead recognized that color vision deficiency ranges in severity from mild to

severe. Id. P.1 According to Turner, the issue was whether an employee who suffered from a

color-vision deficiency could safely do his/her job despite the deficiency. Id. For a decade and a

half, Turner had been tested every three years and alleged that he never misread a railroad signal

while driving a train for BNSF. Id. He alleged that the test he was given did not mirror what he

must see in the field. However, he failed the test and BNSF revoked his license. Id.

Turner filed an ADA discrimination claim after being terminated. Case 4:23-cv-00681,

Rec. doc. 21 at 6. In response to the complaint BNSF filed a Motion for Judgment on the Pleadings

contending that Turner’s complaints belonged with the FRA and its safety expertise, subject only

to judicial review of agency action, not with the courts in an original action under the ADA. Id.

BNSF also suggested as a second basis that Turner cannot show that he is a “qualified individual”

within the meaning of the ADA after he failed both the initial and subsequent retests required by

“federal safety rules.” Therefore, BNSF sought a judgment as a matter of law on the pleadings. Id.

The district court required supplemental briefing from the parties. Rec. doc. 27. The court

noted that Plaintiff argued that BNSF improperly determined that he failed to meet the FRA’s

certification requirements based on a faulty and discriminatory field test. Id.

After noting that the regulation provided an extensive appeals process, the district court

required Turner to supplement his briefing on whether Turner exhausted his administrative

remedies with the FRA and whether the Court has subject matter jurisdiction over his ADA claim.

Id. The Court also required briefing on whether the doctrine of primary jurisdiction weighs in favor

of dismissal because the administrative process might resolve a specific contested issue. Id.

Turner in his supplemental briefing admitted that he did not appeal to the FRA BNSF’s

refusal to recertify him. He cited Williams v. J.B. Hunt Transp., Inc., 826 F.3d 806 (5th Cir. 2016)

for the proposition that he did not have to do so. He claimed that exhaustion of administrative

remedies is not a jurisdictional bar.

In evaluating the motion, the court noted that BNSF contended that the FRA safety

regulations preclude Turner’s ADA claim and the court agreed. Rec. doc. 30. In so doing the

district court noted that while the FRA does not actively participate in conductor testing or

certification, it administers the regulation through approval and monitoring of individual railroads

‘programs, including their eligibility, training, testing and certification regimens. Id. at 3.

The district court noted that Turner argued that BNSF’s field acuity test was inadequate

and improperly discriminated against him on the basis of disability. Id. BNSF suggested that the

claim was precluded because Turner did not use the dispute resolution process, notably which

Turner admitted on supplemental briefing. Id. In finding for the defendant, the district court noted

that railroad employees are not deprived of the ADA’s rights and protection when either they used

the dispute-resolution process or when the claim does not involve the certification decision. Id.

The district court in Turner held that where FRA regulations govern the sufficiency of an

employee’s recertification testing criteria, an employee cannot challenge the railroad’s testing

protocol under the ADA.

Additionally, the district court applying Williams also concluded that Turner’s ADA claim

failed because he was not able to show that he is a “qualified individual” for purpose of his prima

facia discrimination claim. At issue in Turner was whether Turner possessed the requisite job-

related requirements of employment, his conductor certification. The district court noted that like

in Williams, Turner did not seek review and could not show that he could safely perform his duties

because he lacked the required certification.

Turner appealed. Turner v. BNSF Railway Company, 138 F.4th 224 (5th Cir. 2025). The

Fifth Circuit affirmed applying Williams. Again, the Circuit Court had the entire record before it

which included the supplemental briefing which contained Turner’s admission. Notably, although

the judge did not say the motion was converted to a summary judgment, he went beyond the

pleadings by requiring supplemental briefing as to whether Turner exhausted the available

administrative remedies and relied on information beyond the pleadings. After getting an

admission by Turner that he did not use the alternative dispute process, the district court in Turner

followed Williams and granted the motion finding that he could not assert an ADA claim.

Reconciling Williams and Turner, both courts looked beyond the pleadings and had

affirmative evidence that neither plaintiff exhausted the available administrative remedies.

Williams was clearly on summary judgment, and in Turner, while it was before the court on a

motion for judgment on the pleadings, the district court went beyond the pleadings and required

supplemental briefing as to whether Turner used the alternative dispute process to which he

admitted that he did not.

There’s no evidence that Turner challenged the decision by the district court suggesting

that the supplemental briefing amounted to extrinsic evidence beyond the scope of the pleadings.

Without the supplemental briefing, the allegations that he failed to exhaust would have been

ambiguous requiring a denial.

In this case, Rainey does not allege in his complaint that he used the available review

process and nor is he required to do so according to Williams. Further, administrative exhaustion

is an affirmative defense. Davis v. Fort Bend Cnty., 893 F.3d 300, 307 (5th Cir. 2018), aff'd sub

nom. Fort Bend Cnty., Texas v. Davis, 587 U.S. 541 (2019). The Court has no information other

than Marathon’s assertion that Rainey did not exhaust. The Court did not issue an order requiring

supplemental briefing like the Court in Turner and in fact declined to consider information beyond

the pleadings. There is no evidence at present that Rainey failed to exhaust unlike in Williams and

Turner. Therefore, contrary to Marathon’s assertion the Court’s failure to reconcile in the first

instance Williams and Turner does not render the decision wrong as a matter of law. See also

Rodriguez v. Duffy, 2025 WL 1218348 (5th Cir. 2025) (plaintiffs are not required to plead facts to

negate an affirmative defense). On the contrary, the Court very ably reconciled the results in

Williams and Turner. The request for reconsideration on this basis is therefore denied.

iii. Iqbal and Rodriquez

Marathon also complains that the order misapplied Iqbal when it credited plaintiff’s

allegation that the examiner lacked medical justification. Marathon contends that the Court’s use

of Rodriguez v. ConAgra Grocer Products Co.’s, 436 F.3d 468 (5th Cir. 2006), individual

assessment doctrine constitutes error because it could not be used to credit plaintiff’s “bare

allegations” according to Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Marathon’s argument is that because Rodriguez was decided before the FMCSA

promulgation, that somehow its creation forecloses the Court’s ability to interpret whether the

Company complied with the regulations in denying Rainey’s DOT Certification. Marathon also

contends that because the regulations have a process of qualifying its examiners, this forecloses

the Court’s compliance assessment. Notably, Marathon fails to cite any case supporting its

argument and the Court has found none. This argument is not persuasive and lacks both regulatory

and case law support. Therefore, this basis for reconsideration fails.

Marathon also contends that because the Court used the words “evaluating doctor’s

assessment” that it did not decide on the pleadings per Iqbal. However, the complaint itself

indicated that he objectively disqualified Rainey because he had peritoneal dialysis. In other words,

the existence of the condition itself was the reason for the disqualification.

In further support, Marathon seems to take issue with the fact that Rodrigues was at the

summary judgment phase, and the subject case is at the Motion to Dismiss phase. However, the

fact that the Rodriguez decision was rendered before 2006 does not mean that this Court did not

apply Iqbal in this case. Even if the individual assessment could not be used as Marathon suggests,

the complaint does state a claim accepting all well pleaded facts as true as explained below. Iqbal,

Id.

For example, if Rainey’s chronic kidney disease is well managed, as alleged in the

complaint, but the doctor only referenced the fact that he was on dialysis as basis for not certifying

him, in light of his managed disease, the doctor may not have had medical justification for the

refusal to certify him. See R. doc. 1, Original Complaint ¶21-33. This certainly is a reasonable

inference from the complaint that is allowed by Iqbal.

Marathon also cites Smithson v. Union Pacific Railroad Co., No. SA- 21-CA-01225-XR,

2026 WL 1499049 (W. D. Tex. May 27, 2026) for the proposition that a plaintiff’s disagreement

with the employer’s application of the regulations cannot be sustained absent exhaustion of the

agency’s prescribed review process. The Court does not take issue with Smithson. However, unlike

in Smithson, Judge Rodriguez on summary judgment had evidence that the plaintiff failed to

exhaust, whereas here, there is no evidence at this stage of the proceedings confirming that Rainey

failed to exhaust.4 In fact, the record in Smithson cites to the plaintiff’s testimony that he did not

exhaust. 5 The corollary to Smithson is that if he did exhaust, then Rodriquez’s individual

assessment might still be applicable. Here, the Court only has Marathon’s contention, but no proof,

that the plaintiff failed to exhaust which was present in Williams, Turner and Smithson. While

Marathon’s position might ultimately prove to be correct, given the current posture of the case and

the lack of evidence of failure to exhaust, a dismissal at this stage would constitute error. Further,

the Court finds that the complaint adequately states a claim.

4 See 21-CA-01225-XR, Rec. doc. 69.; 69-5 at 3.;

55 Smithson did not appeal the denial of his FRA certification to the FRA. [Ex. C, Pl. Dep., 78:7-9 (AOE 045); Ex.

JJ, McClelland Decl., ¶¶ 7-8 (AOE 342).]

C. Nonexistent Regulation; Clarification

In its reply, Marathon raises a new argument as to why the decision is wrong as a matter

of law. Marathon points out that the Court relied upon a non-existent regulation to support its

finding that there was a question regarding the medical examiners finding that Rainey was

disqualified because he was on dialysis. In reviewing the regulations, Marathon is correct that

mentioning 391.41(d)(3) was error by the Court albeit potentially having significant implications,

the reference is seemingly a typo. However, the Court disagrees that it is a fatal blow to the

decision.

Rainey has not submitted a reply to this new issue raised by Marathon in their reply. The

Court will therefore proceed with addressing the issue.

As the Fifth Circuit has noted, “generally, neither this court nor the district courts of this

circuit will ‘review arguments raised for the first time in [a] reply brief.’” RedHawk Holdings

Corp. v. Schreiber, 836 F. App'x 232, 235 (5th Cir. 2020) (citing Peteet v. Dow Chem. Co., 868

F.2d 1428, 1437 (5th Cir. 1989) (refusing to entertain arguments raised for the first time in

appellant's reply brief); Springs Indus., Inc. v. Am. Motorists Ins. Co., 137 F.R.D. 238, 239 (N.D.

Tex. 1991) (district court following the “court's practice of declining to consider arguments raised

for the first time in a reply brief”)). On occasion, however, a district court may consider arguments

and evidence raised for the first time in a reply brief without abusing its discretion “so long as it

gives ‘the non-movant an adequate opportunity to respond prior to a ruling.’” Id. (citing Thompson

v. Dall. City Attorney's Office, 913 F.3d 464, 471 (5th Cir. 2019) (quoting Vais Arms, Inc. v. Vais,

383 F.3d 287, 292 (5th Cir. 2004))).

And while there is no right to file a surreply, and surreplies are “heavily disfavored,” a

district court abuses its discretion when it denies a party the opportunity to file a surreply in

response to a reply brief that raised new arguments and then relies solely on those new arguments

it its decision. Id. Compare Warrior Energy Servs. Corp. v. ATP Titan M/V, 551 F. App'x 749, 751

n.2 (5th Cir. 2014) (noting that courts “heavily disfavor[ ]” surreplies), and Austin, 864 F.3d at

336 (finding that the district court did not abuse its discretion by denying a party's motion to file a

surreply because the other party “did not raise any new arguments in its reply brief”), with Conroy

v. Vilsack, 707 F.3d 1163, 1179 n.6 (10th Cir. 2013) (citing Pippin v. Burlington Res. Oil & Gas

Co., 440 F.3d 1186, 1191–92 (10th Cir. 2006) (“Our case law makes clear that a district court

abuses its discretion only when it both denies a party leave to file a surreply and relies on new

materials or new arguments in the opposing party's reply brief.”) (alteration in original)).

While the reference was not correct, it was a typo. Rather than 49 CFR 391.41d(3), the

correct and intended citation is 49 CFR 391.41(b)(3) which provides: A person is physically

qualified to drive a commercial motor vehicle if that person-….(b)(3) Has no established medical

history or clinical diagnosis of diabetes mellitus currently treated with insulin for control, unless

the person meets the requirements in § 391.46. Section 49 CFR 391.46 provides (a) Diabetes

mellitus treated with insulin. An individual with diabetes mellitus treated with insulin for control

is physically qualified to operate a commercial motor vehicle and then proscribes the

circumstances in which when a person would be qualified to drive.

According to the FMCSA’s medical standards in 49 CFR Part 391.41, a driver must not

have any medical condition that interferes with their ability to operate a CMV safely. While kidney

disease is not singled out with a specific pass/fail standard the way vision or blood pressure is, it

falls under the broader category of conditions that must be evaluated based on their impact on

overall health and driver safety.

The FMCSA’s Medical Examiner Handbook provides guidance to certified DOT medical

examiners on how to evaluate drivers with various conditions, including renal (kidney) disease

and end stage renal disease. See FMCSA’s Medical Examiner Handbook, www.fmcsa.dot.gov

(2024) Section 391.41 does not include a physical qualification standard that specifically

addresses end stage renal disease or renal dialysis. Accordingly, the effects of renal dialysis should

only be evaluated as part of the underlying medical condition for which it is prescribed. Id. at 76.

The regulations do not speak to a claimant such as Rainey; a person who does not use

insulin but is instead on dialysis. According to the medical examiner’s handbook a medical

examiner should evaluate end stage renal disease and renal dialysis on a case-by case basis under

the most applicable physical qualifications standard.

The stated reason by the ME for declining the certification was “ESRD/Peritoneal Dialysis

which according to the regulations does not serve as a bar to certification. Therefore, applying

Iqbal to plaintiffs claim and considering the facts as alleged in the complaint, Rainey alleges that

PA Ghahramani unreasonably and without any medical justification failed Rainey on his pre-

employment physical because of Rainey’s end stage renal dialysis (“ESRD”) and peritoneal

dialysis. Rec. doc. 1, ¶33.

Rainey further alleges that on April 11, 2023, PA Ghahramani informed Marathon’s human

resources department that he failed Rainey on his pre-employment physical. Id. ¶ 34. Rainey also

alleged that on April 21, 2023, DOT advised Rainey, in writing, that “an exemption for either

peritoneal or hemodialysis is unnecessary because the Federal Motor Carrier Safety Regulations

(FMCSRs) do not have mandatory prohibitions for medical certification of commercial motor

vehicle (CMV) drivers who receive dialysis treatments.” Id. ¶38. Rainey alleges that he forwarded

this guidance to Marathon and PA Ghahramani without any substantive response. Id. Applying the

intended regulatory section 49 CFR 391.41(b)(3), the original opinion is modified to reflect the

correct regulatory section, 49 CFR 391.41(b)(3). Otherwise, the request to modify the original

decision is denied.

D. Alternative Request for Interlocutory Appeal

Regarding Marathon’s alternative request that the Court should certify the order for

interlocutory appeal and stay the proceedings, that request is Denied. There are no grounds let

alone “substantial ground for difference of opinion.” See 28 U.S.C. § 1292(b).

IV. Conclusion

Accordingly,

IT IS ORDERED that the Marathon Petroleum Company LP’s Motion For

Reconsideration of the June 17, 2026, Order & Reasons, Or In The Alternative For

Certification Of Interlocutory Appeal And To Stay Proceedings Pending Appeal ( R. Doc.

21) IS GRANTED IN PART AND DENIED IN PART.

IT IS GRANTED to correct the citation to 49 CFR 391.41(b)(3).

IT IS DENIED in all other respects.

New “Ay , Louisiana, this | of ws 026.

AREN WELLS ROB Kune)

UNITEDSTATES MAGISTRATR

21