135 F.3d 1089 (6th Cir. 1998), 97-1001, E.E.O.C. v. Prevo's Family Market, Inc.

Docket Nº:97-1001.
Citation:135 F.3d 1089
Case Date:February 04, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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135 F.3d 1089 (6th Cir. 1998)



PREVO'S FAMILY MARKET, INC., Defendant-Appellant.

No. 97-1001.

United States Court of Appeals, Sixth Circuit

February 4, 1998

Argued Sept. 8, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied April

23, 1998.[*]

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Craig H. Lubben (argued and briefed), Elizabeth M. McIntyre (briefed), Miller, Johnson, Snell & Cummiskey, Kalamazoo, MI, for Defendant-Appellant.

Paul D. Ramshaw (argued and briefed), Equal Employment Opportunity Commission, Washington, DC, for Plaintiff-Appellee.

Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. MOORE, J. (pp. 1098-1104), delivered a separate dissenting opinion.


CLAY, Circuit Judge.

In this case involving the Americans with Disabilities Act (ADA), defendant, Prevo's Family Market, Inc., (Prevo's) appeals the district court's order on motion by plaintiff, Equal Employment Opportunity Commission (EEOC), for summary judgment on the issue of liability and award of compensatory damages, back pay, pre-judgment interest, punitive damages and reinstatement of one of its employees, Steven Sharp (Sharp), who has claimed to be HIV positive. The district court held Prevo's unlawfully dismissed Sharp after his refusal to submit to a medical examination and allowed trial on the issues of compensatory and punitive damages. Prevo's post-trial motion for a judgment as a matter of law, which was denied, argued that there was insufficient evidence to support an award of punitive damages by the jury.

For the reasons stated herein, we REVERSE the district court's grant of summary judgment in favor of the EEOC on the issue of liability and instead enter judgment in favor of Prevo's, holding that Prevo's did not violate the Americans with Disabilities

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Act in its treatment of Steven Sharp. Accordingly, we VACATE the award of compensatory damages, back pay, pre-judgment interest and reinstatement. Having found no liability on the part of Prevo's, we do not reach the issue of whether its actions warrant an award of punitive damages; therefore, we VACATE the district court's award of punitive damages.

I. Factual Background

Prevo's Family Market, Inc., is a family owned grocery store chain in western Michigan. Prevo's began in the 1940's and now operates seven stores in that portion of the state. Steven Sharp worked for Prevo's at its store in Traverse City, Michigan, in August of 1992 as a part time produce clerk. He had been transferred to this position from a position within Prevo's as a full-time employee. 1 On January 13, 1993, after working at Prevo's for several months, Sharp told his employers that he had tested positive for the human immunodeficiency virus (HIV), which is known to cause acquired immunodeficiency syndrome (AIDS). 2 Sharp also told his employers he was planning to participate in an AIDS awareness and education program and would be speaking at Traverse City High School. He told his employers he would not be mentioning where he worked inasmuch as he did not believe it to be related to his affliction. A number of Prevo's employees have children who attend Traverse City High School, and Sharp thought that news of his speaking about HIV and AIDS to his employer should come from him rather than someone else. In a conversation with Dan Prevo, the president of the grocery chain, Sharp and Prevo's discussed the possibility of Sharp working in another part of the store. Since Sharp was interested in an opening in the cash room, he did not initially object. Prevo's proceeded to reassign Sharp to a part-time position in the receiving area, with comparable hours and pay.

After two days in the receiving position, upon inquiry by Dan Prevo about how he was doing, Sharp explained that he wasn't interacting with customers, which was something he enjoyed in the produce area, and that other employees were commenting about disrupted work schedules and asking a lot of questions about why he had been reassigned. Prevo and Sharp next agreed that Sharp would be placed on a leave of absence with pay and health benefits to get Sharp out of the situation of being asked questions and to give Prevo's a chance to get the information that they needed to properly handle the situation. It was not at all clear why Sharp experienced discomfort at being asked about the reason for the change in his work assignment since Sharp had indicated his desire to perform public speaking in connection with an AIDS awareness and education program.

Sharp promised his employer that he would obtain verification of his HIV condition from his personal physician and furnish the information to his employer. While on paid leave, Prevo's provided health benefits to Sharp although Sharp was not entitled to them as a part-time employee.

By March of 1993, Sharp had not provided the medical information; rather, he consulted attorneys as to whether he should provide such information. In May of 1993, Prevo's, Sharp and their attorneys attempted to reach an agreement on Sharp's continued employment. Dan Prevo again requested that Sharp provide the store with his medical information so that he could make a decision about Sharp's employment situation. He also expressed concern about Sharp's use of knives and the typical cuts and nicks suffered by produce clerks in preparing produce for show. Both parties agree that produce clerks often cut themselves in the course of

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their regular duties. 3 Additionally, Prevo's raised concerns that Sharp would be susceptible to other infectious diseases, including hepatitis and tuberculosis. 4 Sharp's attorney advised him to provide the requested medical information. Sharp continued to promise medical information about his condition from his personal physician, but the information was never forthcoming. Finally, in November of 1993, Prevo's asked that Sharp consent to a medical examination. According to Prevo's, Sharp agreed to a medical examination by an infectious disease expert at the company's expense. Prevo's made an appointment for Sharp with David Baumgartner, M.D., in Grand Rapids, for November 19, 1993. Prevo's requested that Dr. Baumgartner provide a complete diagnosis and prognosis concerning whether Sharp tested positive for HIV, hepatitis or any related conditions; an opinion concerning whether future treatment would require Sharp to be absent from work; an opinion concerning whether Prevo's should consider assigning Sharp to office work; an opinion regarding the transmittal of HIV on tools and produce; and an opinion concerning the degree of risk Sharp posed to customers and co-workers in the produce position. Sharp did not attend the appointment, claiming he had no transportation to get to the doctor's office. Instead, Sharp saw his own physician who provided a simple opinion that Sharp tested negative for tuberculosis and hepatitis; the tests administered to Sharp by his own physician did not reveal whether Sharp was HIV-positive.

At the same time Prevo's was setting up Sharp's appointment, Prevo's also offered alternative employment to Sharp that would have entailed working at home developing marketing information by computer. Sharp wrote to Prevo's to decline the at-home marketing position. Attached to Sharp's letter of refusal was a letter from his physician stating that Sharp tested negative for hepatitis and tuberculosis. Prevo's rejected the letter from Sharp's physician because it did not provide the requested information about Sharp's diagnosis, prognosis, or suitability for employment.

On December 3, 1993, Prevo's human resources coordinator called Sharp regarding the missed appointment in order to find acceptable dates on which Sharp could be examined. The coordinator gave Sharp twenty-four hours in which to advise Prevo's of an acceptable date to reschedule the doctor's appointment. The coordinator also told Sharp that failure to respond would be interpreted as a refusal to have the examination. When Sharp failed to call back with an acceptable date, Prevo's terminated his employment. The termination ended nearly a year during which Sharp received paid leave and medical benefits.

II. Procedural Background

After a period of discovery, Prevo's and the EEOC filed cross-motions for summary judgment on the issue of liability for violating the ADA. The district court granted the EEOC's motion and held that Prevo's had discriminated against Sharp in violation of the ADA. The court cited 42 U.S.C. § 12112(d)(4)(A) which provides as follows:

(A) Prohibited Examination and Inquiries

A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and extent of the disability, unless such examination is shown to be job-related and consistent with business necessity.

Prevo's contended that a medical examination was appropriate in this case to determine whether Sharp could continue to safely perform his job duties without risk of exposing others to HIV or other diseases to which Sharp may have been susceptible. The district

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court noted that Sharp's situation was outside of the typical circumstances that called for medical examinations as outlined in the ADA Technical Assistance Manual. The court also distinguished the cases cited by Prevo's in support of its motion for summary judgment, most notably Leckelt v. Board of Commissioners of Hosp. Dist. No. 1, 909 F.2d 820 (5th Cir.1990), on the grounds that the cases cited by Prevo's involved hospital employees whose risk of exposure to patients was greater than the risk of exposure in the produce department setting.

The medical testimony before the court consisted of depositions of Sharp's doctor and Prevo's doctor....

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