206 F.3d 838 (9th Cir. 2000), 98-3594, Harris v. Harris and Hart

Docket Nº:98-3594
Citation:206 F.3d 838
Party Name:ROOSEVELT HARRIS, Plaintiff-Appellant, v. HARRIS & HART, INC., a Utah Corporation, Defendant-Appellee.
Case Date:March 13, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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206 F.3d 838 (9th Cir. 2000)

ROOSEVELT HARRIS, Plaintiff-Appellant,

v.

HARRIS & HART, INC., a Utah Corporation, Defendant-Appellee.

No. 98-3594

United States Court of Appeals, Ninth Circuit

March 13, 2000

Argued and Submitted September 16, 1999

COUNSEL: Paul L. Breed, Portland, Oregon, for plaintiff-appellant Roosevelt Harris.

Barry N. Johnson, Daniel L. Steele, Bennett, Tueller, Johnson & Deere, Salt Lake City, Utah, for defendant-appellee Harris & Hart, Inc.

Appeal from the United States District Court for the District of Oregon

Before: Andrew J. Kleinfeld and William A. Fletcher, Circuit Judges, and Nora Manella, District Judge.1

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MANELLA, District Judge:

I

INTRODUCTION

Plaintiff-appellant Roosevelt Harris ("Harris") sued defendant-appellee Harris & Hart ("H&H"), alleging that defendant violated his rights under the Americans with Disabilities Act when it requested that plaintiff provide a medical release before returning to work. Defendant, a qualified federal government contractor, is in the business of manufacturing and installing heating, ventilating, and air conditioning systems. Defendant hires journeymen from a union hall on a project-by-project basis. Plaintiff, a journeyman sheet metal worker, had worked for defendant on two separate occasions for approximately three months each time. During his second term working for defendant, plaintiff informed defendant that he suffered from carpal tunnel syndrome and filed a grievance with his union concerning defendant's failure to adequately accommodate his disability.

Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The district court, Hon. Robert B. Jones presiding, granted defendant's motion for summary judgment on the ground that defendant's unwillingness to rehire plaintiff without a medical release did not violate the Americans with Disabilities Act ("ADA"). Plaintiff now appeals the district court's order. Whether an employer may require a medical release of a former employee before rehiring him or her is an issue of first impression in this circuit.

II

FACTUAL AND PROCEDURAL BACKGROUND

Defendant, a qualified federal government contractor, is in the business of manufacturing and installing heating, ventilating, and air conditioning systems. Defendant regularly hires journeymen through the Sheet Metal Workers International Association, Local Union No. 16. Plaintiff is a member of Local Union No. 16 and procures work from the union hall. The union hiring hall is operated according to the terms of a collective bargaining agreement ("CBA") between defendant and the union. Under the terms of the CBA, defendant is to hire sheet metal workers exclusively from the hall. The local union, in turn, must provide "qualified" applicants who are "available for work" for employment with defendant upon defendant's request.

Defendant depends on the union hiring hall to provide qualified sheet metal workers on an as-needed basis. Defendant's need for labor fluctuates from project to project, and a sheet metal worker remains in defendant's employ only to the extent that labor is needed, often for only a few days or weeks. When defendant no longer needs the worker, the worker is laid off.

Once laid off, if the worker desires more work, he or she must return to the hiring hall and place his or her name on the out-of-work list. Sheet metal workers are dispatched from the top of the list to the next requesting employer. Neither workers nor employers have an expectation that a worker will be dispatched to an employer he or she has worked for before, nor is there any preference for hiring based on past experiences with an employer. If a worker is dispatched to a former employer, it is either by random selection or because the employer specifically has requested that worker. The parties agree that a worker is not considered an employee of defendant until defendant has agreed to hire the worker after he or she has been dispatched from the union hall.

Plaintiff worked for defendant on two separate occasions: first from October 14, 1994 to January 18, 1995; and again from September 29, 1995 to January 5, 1996. During this second work term, defendant gave plaintiff a copy of its New Employee Safety Indoctrination Manual (herein "the

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Manual"), including defendant's Injury/Illness Prevention Program. Among other things, the Manual provides:

No employee will be allowed to return to work at any jobsite unless they first bring an original medical release from the Doctor who treated them. These releases are to be sent to the Workers Compensation Coordinator. If the medical release is conditional in any way (i.e. "light duty" is written on the release) then the employee must receive personal permission from the Division or Area Manager in order to return to work.

Plaintiff acknowledged in writing that he received, read, understood, and would comply with defendant's safety manual.

On December 21, 1995, in the course of his second term of employment with defendant, plaintiff complained to his union that he had carpal tunnel syndrome, and that defendant had failed to accommodate his disability. In his written grievance, plaintiff stated:

I, Roosevelt W. Harris II was employed by Harris & Hart Inc. on Sept. of 95 as a sheet metal worker. On or about October 10, 1995, I stated to sheet metal foreman Brain that I had carpel tunnel in both hands. He ask me what I could do. Employee stated back to him what he could and should not do. . . . On November 13, 1995, I went to my doctor for both my hands was in pain. Dr. Reynolds return me back to work with a physical capabilities form. Paper work was given to foreman Brain, to give to Superintendent, Clart Harris.

In response to plaintiff's grievance concerning inadequate accommodation of his disability, union representative Donald Bosch wrote defendant about plaintiff's carpal tunnel syndrome. In a letter dated January 2, 1996, Bosch stated that plaintiff's syndrome limited only two job functions: 1) continual hammering for more than two hours; and 2) using an...

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