Full opinion text
ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE JON D. LEVY, District Judge. The United States Magistrate Judge filed his Recommended Decision (ECF No. 124) with the court on April 1, 2014, pursuant to 28 U.S.C. § 686(b)(1)(B) and Federal Rule of Civil Procedure 72(b). The defendant filed Objections to the Recommended Decision on April 18, 2015. (ECF No. 128.) The Plaintiff filed his Response to Defendant’s Objection on May 5, 2104 (ECF No. 130), the Defendant filed its Reply on May 23, 2014 (ECF No. 133), and the Plaintiff filed his Surreply on May 29, 2014. (ECF No. 135.) A hearing was held on the objections on July 31, 2014. Chad T. Hansen, Esq., appeared for Plaintiff, and Melinda Caterine, Esq., appeared for Defendant. I have carefully reviewed and considered the Magistrate Judge’s Recommended Decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Magistrate Judge’s Recommended Decision; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision. It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is hereby ACCEPTED. SO ORDERED. MEMORANDUM DECISION ON MOTION TO PROHIBIT PLAINTIFF FROM RELYING ON CERTAIN FACTS AND RECOMMENDED DECISION ON MOTIONS FOR SUMMARY JUDGMENT JOHN H. RICH III, United States Magistrate Judge. Hartt Transportation Systems, Inc. (“Hartt”) moves for summary judgment as to former employee John Stark’s three claims against it, for (i) disability-based discrimination and breach of confidentiality in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (Count I), (ii) retaliation in violation of the Surface Transportation Assistance Act of 1982 (“STAA”), 49 U.S.C. § 31105 (Count II), and (iii) retaliation in violation of the Maine Whistleblower’s Protection Act (“MWPA”), 26 M.R.S.A. § 861 et seq., as enforced through the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. § 4551 et seq. (Count III). See Complaint (ECF No. 1) ¶¶ 1, 110-15; Defendant’s Motion for Partial Summary Judgment (ADA/Confidentiality Claim) (“Defendant’s S/J Motion/Confidentiality”) (ECF No. 87) at 1, 10; Defendant’s Motion for Partial Summary Judgment (ADA Discrimination/MWPA/STAA Claims) (“Defendant’s S/J Motion/Remaining Claims”) (ECF No. 86) at 1, 30. • In connection with its motions, Hartt also seeks to preclude Stark from relying, in opposing summary judgment,, on facts set forth in his opposing statement of material facts that are not set forth in his additional statement of material facts. See Defendant’s Expedited Motion Requesting Order Prohibiting Plaintiff From Relying on Any Additional Facts Contained in His Opposing Statement of Material Facts That Do Not Appear in His Additional Statement of Material Facts (“Defendant’s Motion/Facts”) (ECF No. 106). Stark cross-moves for summary judgment on his claim of violations of ADA confidentiality provisions but not on causation, acknowledging that there is a triable issue as to ydiether those alleged violations caused Hartt to terminate his employment. See Plaintiffs Motion for Partial Summary Judgment (“Plaintiffs S/J Motion”) (ECF No. 84) at 1-2,10. Oral argument was held before me on the parties’ cross-motions for summary-judgment on March 25, 2014. For the reasons that follow, I grant in part and deny in part the Defendant’s Motion/Facts and recommend that the court (i) grant the Plaintiffs S/J Motion as to Count I to the extent that Stark alleges that disclosures made on December 13 and 15, 2010, violated ADA confidentiality provisions, but otherwise deny it, (ii) grant the Defendant’s S/J Motion/Confidentiality as to Count I to the extent that Stark alleges that the disclosure made on October 7, 2010, violated ADA confidentiality provisions and that there was any violation of the ADA examination provisions, but otherwise deny it, and (iii) grant the Defendant’s S/J Motion/Remaining Claims as to Count III, Stark’s claim of retaliation in violation of the MWPA, and Count I to the extent that Stark alleges discrimination based on,a record of disability in violation of the ADA, but otherwise deny it. I. Applicable Legal Standards A. Federal Rule of Civil Procedure 56 Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and- the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004). “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the nonmoving party.” Rodriguez-Rivera v. Federico Trilla Reg’l Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir.2008) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008)). “A fact is material if it has the potential of determining the outcome of the litigation.” Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008)). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmov-ing party and give that party the benefit of all reasonable inferences in its favor. San-toni, 369 F.3d at 598. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(c). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (citation and internal punctuation omitted). “This framework is not altered by the presence of cross-motions for summary judgment.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir.2003). “[T]he court must mull each motion separately, drawing inferences against each movant in turn.” Id. (citation omitted); see also, e.g., Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.1996) (“Cross motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary judgment per se. Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed. As always, we resolve all factual disputes and any competing, rational inferences in the light most favorable to the [nonmovant].”) (citations omitted). B. Local Rule 56 The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loe. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loe. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive “separate, short, and concise” statement of material facts in which it must “admit, deny or qualify the facts by reference to each numbered paragraph of the moving party’s statement of material facts[.]” Loe. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party’s statement of additional facts, if any, by way of a reply statement of material facts in which it must “admit, deny or qualify such additional facts by reference to the numbered paragraphs” of the nonmovant’s statement. See Loe. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id. Failure to comply with Local Rule 56 can result in serious consequences. “Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” Loe. R. 56(f). In addition, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment” and has “no independent duty to search or consider any part of the record not specifically referenced in the parties’ separate statement of fact.” Id.; see also, e.g., Sanchez-Figueroa v. Banco Popular de P.B., 527 F.3d 209, 213-14 (1st Cir.2008); Fed. R.Civ.P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion[.]”). II. Factual Background A. Plaintiffs S/J Motion The parties’ statements of material facts, credited to the extent that they are either admitted or supported by record citations in accordance with Local Rule 56, with disputes resolved in favor of Hartt as the nonmovant, reveal the following. 1. Stark Undergoes Two Pre-Employment Physical Examinations Stark was employed by Hartt from October 8, 2010, until December 17, 2010, as an over-the-road (“OTR”) driver, based out of Hartt’s Auburn terminal. Plaintiffs Statement of Undisputed Material Facts (“Plaintiffs SMF”) (ECF No. 85) ¶ 1; Defendant Hartt Transportation Systems, Inc.’s Response to Plaintiff John Stark’s Statement of Undisputed Material Facts (“Defendant’s Opposing SMF”) (ECF No. 98) ¶ 1. On October 6, 2010, Stark underwent a U.S. Department of Transportation (“DOT”) physical examination, conducted by Dr. Kevin Flanigan at Concentra in Lewiston, Maine. Plaintiffs SMF ¶ 2; Defendant’s Opposing SMF ¶ 2. Dr. Flani-gaii concluded that Stark met the DOT standard, and Stark was issued a two-year DOT medical certificate. Id. ¶ 4. On October 7, 2010, Stark went to Central Maine Conditioning Clinic (“CMCC”) for a separate post-offer, pre-employment job placement assessment (“JPA”). Id. ¶ 5. During pre-employment physicals, CMCC classifies individuals into three col- or categories based upon its JPA. Id. ¶ 6. Green means that the individual demonstrates the physical demands of the job. Id. Yellow means that he or she demonstrates the physical demands of the job, but there is some relevant history. Id. Red means that he or she did not safely demonstrate the physical demands of the job, and CMCC thinks the person would be unsafe to be hired. Id. Based on the results of the JPA, CMCC classified Stark as “green.” Id. ¶ 7. The October 7, 2010, examination of Stark by CMCC was different from a DOT examination and was not a DOT examination. Id. ¶ 8. As of July 2010, Hartt had started a pilot project with CMCC relating to the post-offer, pre-employment process. Id. ¶ 10. According to the pilot project, when a driver was offered a job at Hartt’s Auburn office from July 2010 through December 2010, the offer would be contingent on meeting the requirements of the DOT physical and the JPA. Id. ¶ ll. The DOT physical and the JPA were two separate requirements. Id. ¶ 12. Stark did not complete a DOT examination with CMCC. Id. ¶ 13. Rather, he completed a JPA with CMCC, which is a separate pre-employment medical examination. Id. During the course of the October 7, 2010, assessment, Stark also completed a medical questionnaire and a signature-page, and a CMCC employee completed a job placement questionnaire based on information that he provided. Id. ¶ 14. CMCC uses the information provided on the medical questionnaire to assess whether a person can safely perform the JPA itself and the physical demands of the job of OTR driver, and whether it needs to obtain any information from the person’s health care providers to make those determinations. Id. ¶ 16. 2. CMCC Sends Fax to Hartt on October 7, 2010 CMCC faxed the results of the JPA to Hartt, and Hartt Human Resources Assistant Rose Rogers received them. Id. ¶¶ 17, 19. The JPA results dated October 7, 2010, did not indicate that Stark required any reasonable accommodations or had any restrictions. Id. ¶ 20. On or about December 9, 2010, Stark informed two of Hartt’s employees that he was planning to see his Veterans Administration (“VA”) doctor in connection with reports of pain during the prior week. Id. ¶21. 3. CMCC Sends Fax to Hartt on December 13, 2010 On or about December 13, 2010, at Hartt’s request, Stark underwent a medical examination at CMCC to ensure that he was fit to return for duty, and was cleared to return to work that same day. Id. ¶ 22. The same day, CMCC sent a fax to Rogers regarding Stark that Rogers received. Id. ¶ 23. The fax included a report provided to CMCC by Stark in connection with the fitness-for-duty examination that Hartt had Stark attend. Id. ¶ 25. It was Hartt’s normal procedure to have the company completing a fit-for-duty evaluation provide a report to Hartt like the one Hartt received on December 13, 2010, regarding Stark. Id. ¶ 26. Roberta Murphy, who was Hartt’s safety manager at that time, testified that in her mind there was nothing unusual from a procedural standpoint about the fact that Rogers received a copy of the December 13, ' 2010, report from CMCC. Id. ¶ 28; Deposition of Roberta Murphy (“Murphy Dep.”) (ECF No. 77-7), attached to Index, at 5-6, 29. Rogers testified that she scheduled the fitness-for-duty examination for Stark because either he had informed her that he was ready to return to work or she had somehow been informed of that fact. Plaintiffs SMF ¶29; Defendant’s Opposing SMF ¶29. Hartt referred Stark for the December 18, 2010, fitness-for-duty examination to make sure that he was cleared to perform the functions of his job. Id. ¶ 30. In the memorandum from CMCC employee Melissa Bilodeau included with the December 13, 2010, fax, she indicated, “As a result of John’s present strength and range of motion, I do believe he can return to work safely.” Id. ¶31. CMCC staff did not indicate anywhere in the December 13, 2010, fax that Stark required reasonable accommodations or restrictions in connection with performing his job duties for Hartt. Id. ¶ 32. The fax also contained references to Stark’s October 7, 2010, pre-employment physical and the results of that physical. Id. ¶ 33. The fax stated, “It should be noted that [Stark] never mentioned any,, cervical injuries at his original pre-employment assessment.” Id. ¶ 34. After receiving the fax, Rogers showed it to Murphy. Id. ¶ 35. One of the things that Rogers and Murphy discussed when reviewing the fax was that Stark had not provided information on his pre-employment assessment. Id. ¶ 36. 4. Hartt Personnel Discuss Stark with CMCC on December 15, 2010 Murphy decided that she needed to contact Bob Brainerd, owner of CMCC, because she wanted to know why subsequently disclosed information had not been brought forward during Stark’s pre-em-ployment assessment. Id. ¶ 37. On December 14, 2010, Rogers emailed Anne Tolman, an assistant at CMCC, to request a call with Brainerd to discuss the December 13, 2010, fax. Id. ¶ 38. Rogers, Murphy, and Brainerd spoke by telephone on December 15, 2010. Id. ¶ 39. During the call, they discussed Stark’s alleged failure to disclose medical information during his October 7, 2010, pre-employment examination. Id. ¶ 40. Brainerd stated that Stark had not disclosed any information about his “back condition” during his pre-employment assessment. Id. ¶ 41. During the call, Rogers wrote down, “Bob said sign form whether pre-existing or not and failed to disclose the info. We are concerned that you failed to disclose info and we would not have hired you for a job that could have aggravated your condition ... could have been red.” Id. ¶ 42. Rogers testified that she wrote down, “We are concerned that you failed to disclose info and we would not have hired you for a job that could have aggravated your condition” because it was a statement made during the call. Id. ¶ 43. Murphy’s notes of the call state, “Discussed with Bob Brainerd, did fully disclose medical history which can be caused for termination. Protruding disc is symptomatic — -currently it is now non symptomatic. He can do the job function, but is symptomatic.” Id. ¶ 46. In his notes of the conversation, Brainerd wrote, “Telephone conversation with Roberta and Rose at Hartt Transportation. Discussion about if John had disclosed any pre-injury during pre-employment.” Id. ¶ 49. The decision to terminate Stark was made the next day, December 16, 2010. Id. ¶ 50. When Rogers received the results of Stark’s October 7, 2010, JPA, she noted that his JPA had been completed and placed the information in his driver qualification file. Defendant’s Statement of Additional Material Facts (“Defendant’s Additional SMF”), commencing on page 14 of Defendant’s Opposing SMF, ¶ 50; Rogers Dep. at 16-17. The only individuals who have access to the driver qualification file are employees in Hartt’s Human Resources Department. Defendant’s Additional SMF ¶ 50; Supplemental Affidavit of Rick Parisién (“Suppl. Parisién Aff.”) (EOF No. 98-1), attached thereto, ¶ 3. B. Defendant’s S/J Motions The parties’ statements of material facts, credited to the extent that they are either admitted7 or supported by, record citations in accordance with Local Rule 56, with disputes resolved in favor of Stark as the nonmovant, reveal the following. 1. Hartt Hartt is a national, family owned and managed dry goods motor carrier service that has been in business since 1948. Statement of Material Facts in Support of Defendant’s Motions for Partial Summary Judgment (“Defendant’s SMF”) (ECF No. 88) ¶ 1; Plaintiffs Opposing Statement of Material Facts (“Plaintiffs Opposing SMF”) (ECF No. 96) ¶ 1. Its main office is located in Bangor, Maine, and it has terminals in Auburn, Maine, Sumter, South Carolina, and Fulton, Kentucky. Id. Hartt has been recognized for its superior safety record by the American Trucking Association’s Safety Management Council, the Maine Motor Transport Association, and Reliance Insurance Company each year beginning in 1991. Id. ¶ 2. 2. Stark Stark worked as an owner-operator of his own tractor-trailer rig for four years. Plaintiffs Statement of Additional Material Facts (“Plaintiffs Additional SMF”), commencing on page 63 of Plaintiffs Opposing SMF, ¶ 1; Defendant’s Reply to Plaintiffs Opposing Statement of Material Facts and Plaintiffs Statement of Additional Facts (“Defendant’s Reply SMF”) (ECF No. 112) ¶ 1. The work that Stark performed as a driver for other companies prior to starting as an employee for Hartt and as an owner-operator required a commercial driver’s license (“CDL”) and a DOT card, and Stark had both at all times that that he was driving commercial vehicles. Id. ¶ 2. During the period leading up to his employment with Hartt, Stark never had any issues with the mental or physical functions of his commercial driving jobs. Plaintiffs Additional SMF ¶ 3; Affidavit of John Stark (“Stark Aff.”) Exh. 6 (ECF No. 96-6) to Plaintiffs Opposing SMF, ¶ 3. Prior to becoming a Hartt employee, Stark drove for Hartt for a brief period as an owner-operator. Defendant’s SMF ¶ 23; Plaintiffs Opposing SMF ¶ 23. He voluntarily ceased driving for Hartt because he wanted to be home more often. Id. In October 2010, Hartt hired Stark as an OTR truck driver. Id. ¶ 24. Stark was dispatched out of Hartt’s terminal in Auburn, Maine. Id. An OTR driver generally drives for two weeks at a time before returning to the terminal. Id. 3. Hartt’s Policies, Procedures, and Driver Orientation Hartt maintains a comprehensive employee handbook (“Handbook”) that it re: fers to as its “Human Resource Directive: Company Drivers.” Id. ¶ 3. Prior to beginning work, all Hartt drivers go through an intensive eight-hour driver orientation. Id. ¶ 4. On October 8, 2010, Stark attended Hartt’s driver orientation. Id. During orientation, he received a copy of the Handbook.- Id. During orientation, Hartt reviews its policies with the drivers regarding compliance with the laws pertaining to disabilities and whistleblower protection. Defendant’s SMF ¶ 5; Pari-sién Dep. at 7-9. Hartt also tells its drivers that they should report any and all work-related issues and that there will be no repercussions for doing so. Defendant’s SMF ¶-5; Parisién Dep. at 8. The Handbook contains Hartt’s Employee .Conduct and Disciplinary Action Policy, which includes the following relevant provisions: Employee Conduct and Work Rules. The following are example of infractions of rules of conduct that may result in disciplinary action, up to and including termination of employment: • Dishonesty • Falsification of timekeeping records or other Hartt Transportation Systems, Inc. documents • Failure to comply with Hartt Transportation Systems, Inc. policies and rules • Excessive absenteeism, tardiness or any absence without notice The foregoing examples are not all inclusive, and there are many other grounds upon which disciplinary action, up to and including termination of employment, may be imposed. Attendance and Punctuality. To maintain a safe and productive work environment, Hartt Transportation Systems, Inc. expects employees ... to be reliable and to be punctual in reporting for scheduled work. You are expected to be at work, on time, each business day. If you do not report to work for three consecutive days without prior notification, Hartt Transportation Systems, Inc. will consider this an abandonment of your position and that you have voluntarily resigned your employment. Abandonment of Position. An employee ... who is absent three consecutive workdays and has not contacted his/ her supervisor is considered to have abandoned their position and employment will be terminated. Overview of Prohibited Discrimination and Harassment: Any decision or action granting or denying employment ... benefits as to an individual ... is in violation of this policy when such decision or action is based, in whole or in part, upon the ... disability, or any other legally protected characteristic of such individual.... Defendant’s SMF ¶ 6; Plaintiffs Opposing SMF ¶ 6. Stark understood that failure to comply with Hartt’s policies and rules could be grounds for termination. Id. ¶ 8. He also understood that dishonesty could be grounds for termination, as could excessive absenteeism, tardiness, or any absence without notice from work. Id: The Handbook also contains Hartt’s Vehicle and Equipment Use Policy: Maintenance. Please notify a supervisor if'any ... vehicle appears to be damaged, defective, or in need of repair. Prompt reporting of damages, defects, and the need for repairs could prevent deterioration of equipment and possible injury to employees or others. Id. ¶ 10. The Handbook also contains Hartt’s Position Objective and Responsibilities Policy: Safety and Maintenance. Safety and maintenance involves delivering freight safely, following regulations, and safely operating and maintaining your com- ■ mercial motor vehicle. • Check your equipment daily by doing a pre-trip inspection. •' Report any unsafe equipment or working conditions to your supervisor. • Report any needed repairs or special maintenance to the Maintenance Department. Id- ¶ 12. On October 8, 2010, Stark acknowledged that he received, read, and understood Hartt’s Position Objective and Responsibilities Policy. Id. ¶ 13. He understood that he was responsible for following all of Hartt’s policies. Id. ¶ 14. The Handbook also contains an entire Safety Manual providing detailed information to drivers about how to safely operate their trucks and how to properly complete Driver’s Inspections Report (“DIR”) forms, also called Vehicle Inspection Reports (“VIRs”). Id. ¶ 15. The Safety Manual contains a “Pre-Trip and Post-Trip Vehicle Safety Inspections” policy, which states that all drivers must “check each safety aspect of the vehicle prior to taking it out on the road,” should “mak[e] management and maintenance aware of [any] problem,” and should also complete a post-trip inspection after each trip as well. Id. The manual also includes a checklist and detailed procedure for both inspections. Id. The Safety Manual also provides a sample DIR form and states that “[a]nytime you find damage or defects to the equipment, not only must it be written on the VIR but you must call the shop to get the defects repaired immediately.” Id. Stark acknowledged that he received driver safety orientation, which includes a review of the Safety Manual, on October 8, 2010. Id. ¶ 16. Stark was well aware of the process for completing pre-trip inspections and filling out DIR forms, as he had worked as a driver of commercial vehicles for several years prior to his employment at Hartt. Id. ¶ 17. The Handbook also contains an entire Maintenance Manual providing detailed information to drivers about how to properly operate and maintain the trucks they are driving, the fact that drivers are not allowed to repair their own trucks, and procedures for obtaining repairs both on-site at Hartt’s terminals and on the road. Id. ¶ 18. The Maintenance Manual also includes the “Vehicle Inspection Reports” policy, which provides that “[a]ll company drivers ... are required by law to complete a [Vehicle Inspection Report] for each tractor and trailer combination” and, “[i]f you haul the same trailer for consecutive days you need to fill one out for each day.” Id. ¶ 19. Stark acknowledged that he received driver orientation by the Maintenance Department on October 8, 2010. Id. ¶ 20. Stark understood that he was required to “operate vehicles and equipment in a safe responsible manner and in compliance with federal and state laws and regulations governing vehicle use.” Id. ¶21. Stark also understood that he was “expected to inspect vehicles or equipment before operating to ensure that the vehicle equipment will function in a safe manner.” Id. He was aware of whom he needed to call at Hartt if he needed repairs while he was out on the road. Id. Finally, he understood that Hartt’s policy is that “when a driver fails to perform proper maintenance of a vehicle it will result in appropriate disciplinary action.” Id. Stark also attended Northeast Technical Institute in Scarborough, Maine, where he studied to obtain his CDL. Id. ¶ 22. As part of that schooling, he studied Maine’s Commercial Driver License Manual (“CDL Manual”), published by Maine’s Bureau of Motor Vehicles. Id. The CDL Manual contains all of the information regarding pre-trip and post-trip inspections that is contained in Hartt’s Handbook. Id. 4. Stark Reports Problems With His Truck As per the policies contained in the Maintenance Manual portion of the Handbook, Hartt drivers are required to conduct pre-trip and post-trip inspections of their trucks using specific procedures. Id. ¶29. Drivers who have concerns about the safety of their vehicles are required to report their concerns to Hartt. Id. During each day of a trip, the driver also must complete a DIR form containing information on any maintenance issues that arise with the truck. Id. ¶ 30. Drivers turn these DIR forms into the Maintenance Department at Hartt at the end of each trip. Id. Stark was familiar with these requirements when he was hired by Hartt because he previously held jobs as a commercial truck driver, including a brief stint for Hartt as an owner-operator. Id. ¶ 31. He also understood that, while he was employed by Hartt, he was required to complete pre-trip safety inspections on his truck and report any unsafe equipment or working conditions to his supervisor. Id. He reported the mechanical defects with his truck because that was his job. Id. Stark drove Unit 9478 while he was employed by Hartt. Id. ¶32. If Stark noticed a defect during his pre-trip inspection, and it was serious enough, he would not take his truck out. Id. ¶ 35. Instead, he would go right to the Maintenance Department to have it fixed. Id. Stark admits that a driver with a CDL is not permitted to drive a vehicle that he or she knows has a mechanical defect unless he or she has been instructed to drive it somewhere for repairs. Id. ¶ 36. Stark never went out on the road with his vehicle when he knew it had a mechanical defect. Id. If he discovered issues on the road, he would immediately fix the defect or call Hartt’s Maintenance Department to get it fixed. M Stark believes that Hartt did not repair two mechanical issues, involving an exhaust leak and a broken bunk heater, in a timely manner. Id. ¶ 38. Stark’s expert, Jan Stetson Reynolds, opined that a broken bunk heater would not constitute a violation of either the FMCSR or Maine’s Motor Vehicle Inspection Rules (“MMVIR”). Id. ¶ 39. Stark reported the exhaust leak to the Maintenance Department at Hartt and told them, “I have an exhaust leak and you should look at it.” Id. ¶ 40. He claims that he reported the exhaust leak two or three times but does not recall when he reported it or when it was fixed. Id. Exhaust leaks are frequently reported by Hartt drivers, and Hartt had never taken an adverse employment action against a driver for making a report about his or her truck having an exhaust leak. Id. Stark’s driver logs and DIR forms give no indication that he reported an exhaust leak. Id. ¶ 41. However, on December 8, 2010, Hartt’s Repair Order Detail form for Stark’s truck shows that, at Stark’s request, Hartt’s Maintenance Department looked for an exhaust leak and was unable to find one, although it did replace the cab filter. Id. Stetson Reynolds did not and will not opine on whether Hartt appropriately repaired the defects in Stark’s vehicle. Id. ¶ 43. Stetson Reynolds also testified that a driver has to be operating the vehicle with a defect for it to constitute a violation, stating, “[i]f it is sitting in the lot, essentially none of the rules apply.” Id. ¶ 44. When reporting the mechanical issues discussed above, Stark never mentioned that he was concerned about the safety of his vehicle, he was concerned that his vehicle was out of compliance with federal, state, or any other regulations, or he felt Hartt was out of compliance with federal, state, or any other regulations. Defendant’s SMF ¶ 45; Stark Dep. at 162-64. 5. Stark’s October 6, 2010, DOT Physical Examination As an OTR driver, Stark was required by law to maintain a CDL and a current DOT medical certificate. Id. ¶ 47. Prior to scheduling an OTR driver for driver orientation, Hartt schedules each driver for (i) the physical examination required by the DOT, (ii) the drug test required by the DOT, and (iii) a JPA to ensure that the driver is able to perform the essential functions of the job. Id. ¶ 48. As part of DOT physical examinations, OTR drivers are required to provide the examiner with medical history. Defendant’s SMF ¶ 51; Deposition of Craig Curtis, M.D. (“Curtis Dep.”) (ECF No. 77-3), attached to Index, at 24-25, 123-25. Specifically, Stark was required to disclose whether he had a history of, among other things, (i) any illness or injury in the last five years, (ii) or psychiatric disorders, e.g., severe depression, (iii) missing or impaired hand, arm, foot, leg, finger, toe, (iv) spinal injury or disease, (v) chronic low back pain, and (vi) narcotic or habit forming drug use. Defendant’s SMF ¶ 51; Exh. 18 (ECF No. 79-1) to Stark Dep. at l. Stark acknowledges that he filled out and signed the DOT Physical Examination Report. Defendant’s SMF ¶ 52; Stark Dep. at 209-10. During his October 6, 2010, DOT examination, Stark disclosed his history of a hernia repair in 2009. Plaintiffs Additional SMF ¶ 14; Defendant’s Reply SMF ¶ 14. The examiner, Dr. Flanigan, did not disqualify Stark for the history of hernia. Plaintiffs Additional SMF ¶ 15; Curtis Dep. at 110-11. Dr. Flanigan concluded that Stark met the DOT standards and issued him a DOT card. Plaintiffs Additional SMF ¶ 16; Defendant’s Reply SMF ¶ 16. A copy of the DOT report was faxed to Hartt on October 6, 2010, as evidenced by the fax stamp on the document and the testimony of Parisién. Id. ¶ 17. Stark’s DOT card expired in October 2012. Plaintiffs Additional SMF ¶ 18; Stark Dep. at 21. The DOT Physical Examination Report states as follows: “I certify that the above information is complete and true. I understand that inaccurate, false or missing information may invalidate the examination and my Medical Examiner’s Certificate.” Defendant’s SMF ¶ 53; Plaintiffs Opposing SMF ¶ 53. Stark provided Hartt with his DOT Physical Examination Report because the DOT requires that Hartt have its drivers’ DOT Physical Examination Reports when it conducts its audits. Id. ¶ 54. 6. Stark’s October 7, 2010,* CMCC Physical Examination As part of the separate JPA, Stark was required to provide the examiner with his medical history through CMCC’s Health History Questionnaire. Id. ¶ 55. CMCC uses the information provided on the Health History Questionnaire to assess whether a person can safely perform the JPA itself and the physical demands of the job of OTR driver, and whether it needs to obtain any information from the person’s health care providers to make those determinations. Defendant’s SMF ¶ 56; Brain-erd Dep. at 22-24. Stark was required to disclose, on the Health History Questionnaire, whether he had (i) a work or non-occupational injury that placed restrictions on him at work, (ii) any current or chronic orthopedic/musculo-skeletal joint pain limitations, (iii) an injury that might interfere with his ability to perform the job safely, (iv) pain sometimes upon performing certain activities, and whether he then had, or had had in the past, (i) back trouble, back pain, or back injury, (ii) depression, (iii) nervous or mental problems, (iv) neck injury or whiplash, or (v) hernia, rupture. Defendant’s SMF ¶ 57; Plaintiffs Opposing SMF ¶ 57. The only medical issue that Stark disclosed on his Health History Questionnaire was his 2009 inguinal hernia repair. Defendant’s SMF ¶ 58; Exh. 2 to Brainerd Dep. at 19-20. The Health History Questionnaire contained the follovving statement: Statement of honesty: I have truthfully answered the above questions to the best of my knowledge. I understand that withholding any relevant information or giving false information regarding the above can be cause for termination. I have reviewed this form and agree that this is an accurate reflection of my current situation. Defendant’s SMF ¶ 59; Plaintiffs Opposing SMF ¶ 59. 7. Stark Reports Injury; Undergoes Fitness-for-Duty Examination On or about December 6, 2010, Stark left a voicemail for Rogers, Hartt’s Human Resources Assistant, indicating the he was interested in switching from his position as an OTR driver to a position as a regional driver. Id. ¶ 25. Typically, regional drivers are home on the weekends. Id. The same day, Rogers emailed Aaron Wiles, the Auburn Terminal .Manager and Stark’s direct supervisor, and informed him of Stark’s voicemail. Id. ¶ 26. Wiles responded that the transfer was fíne but that Stark would have to “swap trucks” and go to New York City when needed. Id. On December 8, 2010, Rogers emailed a status change form alerting the relevant Hartt managers that beginning on December 12, 2010, Stark would be working in the regional driver position. Id. ¶ 27. On or about December 9, 2010, Stark informed Cote, Hartt’s Safety Coordinator, that he was planning to go see his VA doctor. Defendant’s SMF ¶ 68; Cote Dep. at 50. Cote emailed Rogers and Roberta Murphy, Hartt’s Safety Manager who handled workers’ compensation claims, to inform them about Stark’s injury. Defendant’s ShÍF ¶ 68; Exh. 9 to Parisién Dep. Rogers responded that Stark would need to be cleared to return to work. Id. Stark described his neck issue as a “medical instant” rather than a “medical condition.” Defendant’s SMF ¶ 71; Plaintiffs Opposing SMF ¶ 71. On December 10, 2010, Stark provided Hartt with a doctor’s note stating that he would be out of work for just three days, from December 9-11, 2010. Id. ¶ 73. Because Rogers now had Stark’s return to work date, she scheduled Stark for a fitness-for-duty examination on December 13, 2010, at CMCC to ensure that he could safely perform the essential functions of his position. Id. On December 13, 2010, Stark went to his fitness-for-duty evaluation at CMCC. Id. ¶ 75. Harft referred Stark for the December 13, 2010, fitness-for-duty evaluation to make sure that he was cleared to perform the functions of his job. Plaintiffs Additional SMF ¶ 27; Defendant’s Reply SMF ¶ 27. Hartt does not refer all persons who miss work for fitness-for-duty evaluations. Id. ¶ 61. For example, Hartt would not require a fitness-for-duty evaluation for an employee with the flu. Plaintiffs Additional SMF ¶ 62; Rogers Dep. at 34. Hartt only refers drivers for a fitness-for-duty evaluation if it concludes that the condition in question would be a “dis-qualifier” for their DOT card and -to make sure that the employee is not going to injure herself or himself. Plaintiffs Additional SMF ¶ 63; Rogers Dep. at 34. Rogers required that Stark have a fitness-for-duty evaluation because she alleges that he disclosed that he had a herniated disk and gel was leaking. Id. ¶ 64. Rogers was concerned about the herniated disk in terms of whether or not Stark could do his job and whether or not it would be aggravated by doing his work. Plaintiffs Additional SMF ¶ 65; Rogers Dep. at 36. 8. CMCC Sends Fax to Hartt on December 13, 2010 The same day, CMCC faxed Rogers a letter containing the results of the examination, including, among other things, that Stark was cleared to return to work. Defendant’s SMF ¶ 75; Plaintiffs Opposing SMF ¶ 75. In the memorandum from CMCC employee Bilodeau included with the December 13, 2010, fax, she stated, “As a result of John’s present strength and range of motion, I do believe he can return to work safely.” Plaintiffs Additional SMF ¶ 28; Defendant’s Reply SMF ¶28. The letter also stated that Stark believed that he had aggravated a previous neck injury of a protruding disk when he was driving his vehicle in the snow for three days. Defendant’s SMF ¶ 75; Plaintiffs Opposing SMF ¶ 75. Finally, the letter stated that Stark “never mentioned any cervical injuries at his original pre-employment assessment.” Id. Parisién does not know whether anyone informed Stark after he passed the December 13, 2010, fitness-for-duty examination that he was cleared to return to work. Plaintiffs Additional SMF ¶ 29; Defendant’s Reply SMF ¶ 29. 9. Hartt Personnel Discuss Stark with CMCC on December 15, 2010 During Rogers’ and Murphy’s December 15, 2010, telephone call with Brainerd, Brainerd stated, among other things, that Stark was cleared to return to work and could perform all of the essential functions of his position. Defendant’s SMF ¶ 78; Plaintiffs Opposing SMF ¶ 78. Brainerd also stated that Stark had not disclosed his prior injury during his JPA and that the CMCC questionnaire does state that an employee can be terminated for failing to disclose that information. Id. Stark denies that he ever told anyone, including his doctors, that he had a “herniated disk.” Id. ¶80. Stark also denies being aware that he had any type of “neck problem.” Id. He merely acknowledges that he may have questioned whether he might have a herniated disk. Id. 10. Stark’s Employment Is Terminated on December 17, 2010 On Friday, December 17, 2010, Wiles informed Stark that his employment had been terminated. Defendant’s SMF ¶ 85; Wiles Dep. at 60-61. During the termination meeting, Wiles said nothing about Stark’s reporting of the exhaust leak or any other mechanical issues. Defendant’s SMF ¶ 85: Stark Dep. at 173-75. Hartt regularly terminates employees for job abandonment. Defendant’s SMF ¶ 86; Plaintiffs Opposing SMF ¶86. Stark’s telephone records show that he was calling the Maine Department of ■Labor, Office of Unemployment Security, on December 14, 15,16, and 17, 2010. Id. ¶ 88. During the period that Stark worked as a commercial driver for Hartt, he was able to perform the physical and mental functions of the job. Plaintiffs Additional SMF ¶ 6; Stark Aff. ¶ 6. Parisién had no issues with Stark during the period of time between his orientation and December 6, 2010. Plaintiffs Additional SMF ¶ 7; Defendant’s Reply SMF ¶ 7. As of October 6, 2010, and through the entire period that Stark worked for Hartt he was not suffering from any mental or physical symptoms that affected his ability to drive a commercial vehicle with the exception of the three days in December 2010 that he took leave from work until his neck/shoulder symptoms resolved. Plaintiffs Additional SMF ¶ 9; Stark Aff. ¶8. Since his termination from Hartt, Stark has continued to work as a commercial truck driver. Plaintiffs Additional SMF ¶ 10; Defendant’s Reply SMF ¶ 10. In particular, Stark worked for K & K Excavation driving a dump truck from May 2011 until he was laid off in December 2011, and then again from March 2012 until he was laid off in January 2013. Id. Stark was hired by Perry Transport in the summer of 2013 as a commercial driver and has driven for Perry Transport as a full-time commercial driver to the present. Id. His current job requires a CDL and a DOT card, and Stark maintains both of these things. Id. 11. Opinions of Hartt’s Medical Expert, Dr. Curtis Hartt’s expert Dr. Curtis, a physician who has performed DOT examinations throughout his career, has opined that Stark failed to disclose certain medical conditions during his DOT physical examination that would have influenced his ability to be certified to drive. Defendant’s SMF ¶ 61; Curtis Dep. at 26. Specifically, Dr. Curtis opined that the information Stark provided on his DOT Physical Examination Report was “inaccurate” when compared with his medical records because the “medical records revealed conditions that were not identified” in the DOT report. Defendant’s SMF ¶ 61; Exh. 3 (ECF No. 77-6) to Curtis Dep. at 8. Dr. Curtis also noted in his report that the “medical records provided had large bodies of the record redacted,” with references to issues that were not disclosed on his DOT history, and that “[tjhese medical conditions could likely impact his ability to safely operate a commercial motor vehicle[.]” Id. These medical conditions included the hernia and cervical pain with a degenerative and/or herniated cervical disk »with left-sided radiculopathy and arm numbness and weakness. Defendant’s SMF ¶ 61; Curtis Dep. at 26-27. Dr. Curtis would have disqualified Stark from being cleared to drive a commercial motor vehicle and obtaining a DOT medical certificate on October 6, 2010, because (i) Stark falsified his medical history on the DOT Physical Examination Report and (ii) Stark’s various medical conditions may have disqualified him from driving a commercial vehicle. Defendant’s SMF ¶ 62; Exh. 3 to Curtis Dep. at 8-9; Curtis Dep. at 51. Given that Stark’s medical records are heavily redacted, Dr. Curtis cannot determine whether his mental health condition^), or any prescription medications that he had to take as a result of those condition(s), would have disqualified him from driving. Defendant’s SMF ¶ 63; Plaintiffs Opposing SMF ¶ 63. Stark’s failure to disclose this information disqualifies him from obtaining his DOT medical certificate. Id. ¶ 64. Given Stark’s failure to disclose this information during his DOT physical examination, Dr. Curtis opined that Stark’s DOT medical certificate should have been revoked and that he should have had another DOT physical examination to ensure that he was still physically qualified to perform the essential functions of his job. Id. ¶ 65. Also, given Stark’s injury in December 2010, Dr. Curtis opined that Stark should have had a. new DOT physical examination to ensure that he was still physically qualified to perform the essential functions of his job. Id. ¶ 66. The fact that Stark was cleared to return to work by CMCC after his fitness-for-duty examination on December 13, 2010, does not mean that he would have been declared qualified to drive a commercial vehicle by a DOT-qualified examiner. Defendant’s SMF ¶ 67; Curtis Dep. at 105-08. In response to questions, regarding any evidence of symptoms or weakness associated with Stark’s history of hernia repair and neck/shoulder condition, Dr. Curtis acknowledges that Stark performed the essential job requirements during the course of the October 7, 2010, JPA. Plaintiffs Additional SMF ¶ 22; Defendant’s Reply SMF ¶ 22. Dr. Curtis admits that he is not aware of whether Stark suffered any radiculopathic symptoms in his arm during the period of time he worked for Hartt. Id. ¶ 47. Dr. Curtis admits that the fitness-for-duty evaluation completed by CMCC in December 2010 appropriately assessed Stark’s condition as of the time of the evaluation. Plaintiffs Additional SMF ¶ 48; Curtis Dep. at 96. Dr. Curtis has no disagreement with the conclusion by CMCC in December 2010 that Stark was fit for duty. Plaintiffs Additional SMF ¶ 49; Defendant’s Reply SMF ¶ 49. Dr. Curtis agrees with the conclusion of CMCC’s fitness-for-duty evaluation that Stark was physically able to perform the essential duties of his job. Plaintiffs Additional SMF ¶ 50; Curtis Dep. at 97-98. Dr. Curtis does not know if Stark’s neck condition has deteriorated since December 13, 2010, in a way that would disqualify him from driving. Plaintiff’s Additional SMF ¶ 51; Curtis Dep. at 99. According to Dr. Curtis, the next appropriate step would be for Stark to be reassessed by a DOT examiner to determine whether he is able to get another DOT card. Plaintiffs Additional SMF ¶ 52; Defendant’s Reply SMF ¶52. Dr. Curtis admits that he has never seen a situation where a driver had something happen while on the job that resulted in a change from no radiculopathic symptoms to acute symptoms such as losing control of his or her arm. Id. ¶ 53. Dr. Curtis admits that an EMG test done on Stark on March 25, 2011, found that the nerve impingement at Stark’s C7 vertebrae were “mild.” Id. ¶ 54. Dr. Curtis admits that he does not know whether there is anything in terms of Stark’s medical conditions that would have rendered him, in Dr. Curtis’ opinion, unsafe to drive. Id. ¶ 38. Dr. Curtis has been involved in 15,000 or more DOT examinations either personally or as a supervisor. Plaintiffs Additional SMF ¶ 55; Defendant’s Reply SMF ¶ 55. Dr. Curtis cannot recall any situation in which he disqualified a driver for a chronic neck condition. Id. ¶ 56. Dr. Curtis alleges that the assessments done by CMCC are not DOT examinations. Id. ¶ 60. III. Discussion A. Cross-Motions: ADA Confidentiality Claim Stark alleges in Count I of his complaint that Hartt not only unlawfully discriminated against him on the basis of a perceived disability, in violation of the ADA, but also violated “the examination and confidentiality provisions of the ADA.” Complaint ¶ 111. The ADA permits covered entities to “require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant” if, inter alia: information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that— (i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and (iii) government officials investigating compliance with this chapter shall be provided relevant information on request!;.] 42 U.S.C. § 12112(d)(3)(B). In addition, following hire, “[a] covered entity may make inquiries into the ability of an employee to perform job-related functions.” Id. § 12112(d)(4)(B). Medical information gleaned as a result of such an inquiry must be treated in the same manner and is subject to the same exceptions as that gleaned through a post-offer, pre-employment screening. See id. § 12112(d)(4)(C). The purpose of the ADA confidentiality provisions is to “protect disabled employees from job discrimination by ensuring the results of job-related medical examinations would not be kept in their personnel files.” Yoder v. Ingersoll-Rand Co., 31 F.Supp.2d 565, 569 (N.D.Ohio 1997), aff'd, 172 F.3d 51 (6th Cir.1998). Stark moves for summary judgment on the elements of an ADA breach of confidentiality claim other than causation, namely, that (i) he was subjected to a pre-employment examination as defined by section 12112(d)(3) on October 7, 2010, and a fitness-for-duty evaluation as defined by section 12112(d)(4)(B) on December 13, 2010, and (n) Hartt violated the confidentiality requirements of section 12112(d)(3)(B) when protected information was provided to its managers via fax on October 7, 2010, via fax on December 13, 2010, and during a conversation between the owner of CMCC and Hartt’s managers on December 15, 2010. See Plaintiffs S/J Motion at 1-2. He concedes that there is a triable issue as to whether these asserted breaches of confidentiality caused his termination and damages resulting therefrom. See id. at 1. Hartt does not contest the applicability of section 12112(d) to Stark’s October 7, 2010, and December 13, 2010, examinations; however, it contends that the disclosures at issue comported with ADA confidentiality requirements. See Defendant’s Opposition to Plaintiffs Motion for Partial Summary Judgment (“Defendant’s S/J Opposition”) (ECF No. 97) at 2-8. It cross-moves for summary judgment both on that basis and on the basis that any alleged violation caused Stark no damages. See Defendant’s S/J Motion/Confidentiality at 6-10. 1. Existence of Violation Stark’s argument is straightforward. He contends that (i) section 12112 is clear that there are only three scenarios in which information obtained during a medical examination may be disclosed, (ii) only the first scenario is arguably applicable, and (iii) Hartt cannot show that the disclosures at issue fit the first scenario because no information obtained in either examination indicated that he had restrictions or required accommodations. See Plaintiffs S/J Motion at 4. He elaborates that: 1. CMCC’s fax to Rogers on October 7, 2010, indicated that Stark was classified as “green” and able to perform the duties of his job. See id. at 5. In any event, even had Stark been noted to have restrictions or require accommodations, CMCC faxed far more detail than would have been necessary to address those needs. See id. at 5 & n. 2. 2. CMCC’s fax to Rogers on December 13, 2010, indicated that Stark was fit to return to duty. See id. at 5-6. In any event, even had Stark been noted to have restrictions or require accommodations, CMCC again transmitted considerably more detail than would have been permissible, in particular its notation that Stark “never mentioned any cervical injuries during his pre-employment assessment.” Id. Rogers and Murphy scheduled the December 15, 2010, telephone call with CMCC’s Brainerd precisely because of their concerns over the disclosure that Stark had not mentioned his neck condition during his October 7, 2010, pre-em-ployment physical. See id. at 8. This topic was discussed in some detail during that teleconference. See id. As Stark points out, see id. at 6-7, in Blanco v. Bath Iron Works Corp., 802 F.Supp.2d 215 (D.Me.2011), this court denied a defendant employer’s motion to dismiss for failure to state a claim when it concluded that “a company physician’s disclosure to the employer of an alleged omission in an employee’s employment entrance examination questionnaire potentially violate[d] 42 U.S.C. § 12112(d)(3)(B)[,]” Blanco, 802 F.Supp.2d at 216. The court observed: There is nothing in the Amended Complaint that would allow the Court to conclude that [the company physician] disclosed the contents of the medical questionnaire to the Defendants’ management personnel in order to advise them of ‘necessary restrictions on the work or duties’ for [the employee] or for ‘necessary accommodations.’ To the contrary, she disclosed the information to management because in her view he had lied on the questionnaire, not to advise them of necessary restrictions or accommodations. The Court cannot squeeze these ' facts into § 12112(d)(3)(B)(i). Id. at 223. The court rejected the defendant employer’s argument that disclosure of an employee’s untruthfulness on a medical questionnaire did not constitute a violation of the ADA confidentiality provisions, reasoning: The ADA clearly protects the confidentiality of [the employee’s] response if truthful and the ADA still protects its confidentiality if not. In other words, there is no prevarication exception to the ADA’s confidentiality mandate for employment entrance examinations, much less for information the company doctor perceives is inaccurate. It is the information, accurate or not, that the statute protects. Id. at 224. Stark posits that precisely the same violation occurred in this case on December 13 and 15, 2010, when CMCC disclosed to Hartt human resources managers confidential information regarding his asserted omission of information during his pre-employment examination. See Plaintiffs S/J Motion at 8. Stark also analogizes this case to Downs v. Massachusetts Bay Transp. Auth., 13 F.Supp.2d 130 (D.Mass. 1998), in which the plaintiffs employer fired him after learning during the course of investigating a workers’ compensation claim that he had given false responses to two questions asked during a pre-employment medical examination. See id. at 9-10; Downs, 13 F.Supp.2d at 132. The Downs court held, inter alia, that the employer’s release of the plaintiffs medical file to its workers’ compensation claims representative did not fall within any of the permissible uses of that confidential information under the ADA in part because “the purpose for which the information was sought and used does not meet any of the purposes recited by the ADA[.]” Downs, 13 F.Supp.2d at 141-42. Hartt rejoins that Stark ignores the existence of an exception to the ADA confidentiality requirement for disclosures regarding potential work-related injuries for workers’ compensation purposes and the existence of a defense that its challenged actions were required or necessitated by another federal law or regulation, namely, DOT regulations regarding drivers’ fitness to drive a commercial motor vehicle. See Defendant’s S/J Opposition at 2-3. It adds that: 1. CMCC’s disclosure of the results of the October 7, 2010, JPA to Rogers did not violate the ADA confidentiality provision because there is no evidence that the information was shared with anyone but Rogers, who obtained it as part of the hiring process, simply noted that the JPA had been completed, and placed it in Stark’s driver qualification file, separate from his personnel file. See id. at 3-4. Hartt contends that, in any event, the disclosure on that date caused Stark no damages: he was hired and commenced work as a commercial truck driver. See id. at 4. 2. CMCC’s disclosures of December 13 and 15, 2010, were made only to Parisién, Hartt’s Director of Human Resources and Director of Safety, Rogers, its Human Resources Assistant, and Murphy, its Safety Manager, all of whom needed to be aware of the issue to determine any necessary accommodations for Stark, whether Hartt needed to file a report of occupational injury form for workers’ compensation purposes, whether Stark could safely perform his job duties in compliance with DOT requirements, and whether Stark was qualified to hold a commercial driver’s license. See id. at 4-5. Hartt notes that, despite the fact that the fitness-for-duty evaluation concluded that Stark could return safely, it also stated that he believed he had aggravated a previous neck injury of a protruding disk when driving his vehicle in the snow for three days. See id. at 5. It argues that this makes it clear that the disclosure is covered under the exception for potential work-related injuries for workers’ compensation purposes and raised questions whether Stark was qualified to hold a commercial driver’s license under the DOT regulations. See id. Hartt distinguishes Blanco on the basis that it did not involve an employer’s supervening duties pursuant to the DOT regulations, and Downs on the basis that the workers’ compensation claims representative was permitted unlimited access to the employee’s entire medical file, which went beyond the scope of the release he had signed, and the question that the employee had answered inaccurately during his pre-employment examination was an impermissible question as to whether he had filed previous claims for workers’ compensation. See id. at 6-7. Hartt reasons that, to find that it violated the ADA confidentiality provisions in this case would mean that DOT drivers could routinely lie on pre-employment DOT physical examinations without potential consequence, implicating public safety. See id. at 7-8. Stark rejoins that Hartt fails to establish that its actions fit within the confines of any recognized exception to the ADA confidentiality provisions. See Plaintiffs S/J Opposition/Confidéntiality at 1-7. For the reasons that follow, I conclude that Stark is entitled to summary judgment as to the December 13 and 15, 2010, disclosures, but not as to the October 7, 2010, disclosure, with respect to which Hartt is entitled to summary judgment. With respect to the October 7, 2010, disclosure, Hartt correctly points out that, based on EEOC guidance, the United States Court of Appeals for the Seventh Circuit has construed section 12112(d) to permit the results of a post-offer, pre-employment medical examination to be disclosed to, and used by, appropriate decision-makers involved in the hiring process. See Defendant’s S/J Opposition at 4; O’Neal v. City of New Albany, 293 F.3d 998,1009 (7th Cir.2002); see also Adams v. Alter Barge Line, Inc., No. 07-501-DRH, 2009 WL 806598, at *13 (S.D.I11. Mar. 27, 2009). Indeed, section 12112(d) contemplates that employers will obtain “information ... regarding the medical condition or history of the applicant^]” which they are then obligated to maintain in separate medical files and treat as confidential with the three exceptions discussed above. 42 U.S.C. § 12112(d)(3)(B). There is no dispute that Rogers, a Hartt Human Resources Assistant, received CMCC’s October 7, 2010, fax of Starks’ JPA and placed it in a “driver qualification file” to which only Human Resources employees had access. See Defendant’s Additional SMF ¶ 50; Suppl. Parisién Aff. ¶ 3. CMCC’s October 7, 2010, disclosure of the JPA results to an appropriate Hartt employee, who placed them in a segregated file, did not constitute a violation of the ADA’s confidentiality provisions. I reach a different conclusion with respect to the December 13 and 15, 2010, disclosures. In both instances, CMCC disclosed confidential information from Stark’s post-offer, pre-employment physical — that he had not then reported a prior neck injury — without any permissible purpose. First, the disclosures do not fit within the only arguably applicable ADA exception, the informing of supervisors and managers of “necessary restrictions on the work or duties of the employee and necessary accommodations[.]” 42 U.S.C. § 12112(d) (3) (B) (i). Hartt argues that the disclosures were