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

• 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, U.S. Court of Appeals — 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 air hammer to hammer duct together "in any way, shape or form." Plaintiff signed the letter written by Bosch, certifying his agreement with its contents. On January 5, 1996, plaintiff resigned his job with defendant.

Less than two weeks later, on January 17, 1996, the union hiring hall again dispatched plaintiff for a job with defendant. Consistent with the requirements set out in the Manual, defendant requested that plaintiff provide a medical release before returning to work. Plaintiff refused to provide a medical release, and defendant denied him employment.

Plaintiff immediately filed a grievance with the union relating to defendant's refusal to hire him. The parties settled the grievance on February 26, 1996, when they entered into a Confidential Separation Agreement. Among other conditions, defendant agreed to pay plaintiff $1,159.60. Plaintiff warranted that he had not filed and agreed not to file in the future any claims arising out of his relationship with defendant. The agreement also stated that it did not preclude plaintiff from being hired by defendant in the future if the need arose for plaintiff's services, and "plaintiff is qualified and physically able to perform available work."

On January 23, 1997, the union again dispatched plaintiff to work for defendant as a sheet metal journeyman. As before, defendant asked for a medical release. Plaintiff again refused to provide the requested release, and defendant again denied plaintiff employment. On January 24, 1997, plaintiff filed a grievance. He then filed complaints with the U.S. Department of Labor and the Oregon Bureau of Labor and Industries ("BOLI").² In September 1997, he filed a complaint in state court. On October 20, 1997, defendant removed the case to federal court.

Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On September 15, 1998, the district court granted defendant's motion for summary judgment on

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the ground that defendant's unwillingness to rehire plaintiff without a medical release did not violate the Americans with Disabilities Act. Plaintiff now appeals the district court's order.

III

DISCUSSION

A

Standard of Review

The standard of review of a grant of summary judgment is de novo. See Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937 (1990). Summary judgment may be granted when, viewing the evidence in the light most favorable to the non-moving party, no genuine issues of fact remain, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment must be entered against a party who fails to present evidence sufficient to establish an essential element of that party's case. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).

B

Application

The only issue in this case is whether defendant's refusal on January 23, 1997 to rehire plaintiff without a medical release constituted an illegal pre-offer medical inquiry under the ADA. Specifically, the district court found defendant's requirement of a medical release to be an appropriate preoffer inquiry of a former employee with a known disability, that did not run afoul of the ADA.

The Americans with Disabilities Act was enacted "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. S 12101(b). Within the context of employment discrimination, the ADA provides: "(a) General rule. No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee...