Arnold v. City of Appleton, Wis.
| Decision Date | 14 April 2000 |
| Docket Number | No. 97-C-0869.,97-C-0869. |
| Citation | 97 F.Supp.2d 937 |
| Parties | Mark ARNOLD, Plaintiff, v. CITY OF APPLETON, WISCONSIN, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Jeffrey P. Sweetland, Daniel L. Shneidman, Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks, Domer, Milwaukee, WI, Aaron N. Halstead, Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks, Domer, Madison, WI, for plaintiff.
Kevin P. Reak, Gunta & Reak, Milwaukee, WI, for defendant.
The plaintiff filed this action alleging that the defendant City of Appleton, Wisconsin (Appleton), violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112 et seq., when it declined to hire him as a firefighter due to his epilepsy. The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the matter arises under federal statutes. Venue is proper under 28 U.S.C. § 1391. The case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 13.03 (E.D.Wis.). The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and Local Rule 13.05(a) (E.D.Wis.).
The parties filed motions for summary judgment. These motions were briefed before the Court rendered its decisions in Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999), and Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999), which address certain relevant issues under the ADA. The parties were given an opportunity to file supplemental briefs. The motions for summary judgment are now fully briefed and will be addressed herein.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-61 (E.D.Wis.1991). "Material facts" are those facts that, under the applicable substantive law, "might affect the outcome of the suit." See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute over "material facts" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The burden of showing the needlessness of a trial — (1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law — is upon the movant. In determining whether a genuine issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Anderson, 477 U.S. at 267, 106 S.Ct. 2505; see also, Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548 (). On a motion for summary judgment, all inferences are taken in the light most favorable to the nonmoving party. Matter of Wade, 969 F.2d 241, 245 (7th Cir.1992).
The plaintiff, Mark Arnold, is a 35-year-old male resident of the City of Appleton. In early 1995, the plaintiff applied for a firefighter position advertised by defendant City of Appleton (City). On June 19, 1995, following the plaintiff's completion of a written examination and interviews with the City's Police and Fire Commission (PFC) and Fire Chief Richard Davis, the defendant made the plaintiff a conditional offer of employment as a firefighter. The offer of employment was conditioned on the plaintiff's successful completion of medical and psychological examinations and a physical agility test. The plaintiff successfully completed the defendant's psychological evaluation.
The plaintiff has epilepsy. Epilepsy is a neurological condition that may cause unprovoked seizures. It is not the result of an independent illness, but rather is the result of an intrinsic dysfunction of the brain. The plaintiff takes Dilantin, a medication used by persons with epilepsy, which suppresses rapidly firing neuronal discharges, thereby suppressing seizures. The plaintiff stopped taking Dilantin sometime in 1988 and he did not have another seizure until January 16, 1990. After the January, 16, 1990, seizure, he was placed on a Dilantin dosage of 400 mg. per day, which has continued to the present day.
"Many years ago," the plaintiff experienced side effects from taking Dilantin. (Deposition of Mark Arnold [Arnold Dep.] at 31-32). He felt edgy and uncomfortable as a result of taking Dilantin. Id. at 31. Dilantin is one of the most commonly used seizure medicines and one of the most difficult of the seizure medications to regulate. (Deposition of George Morris III, M.D. [Morris Dep.] at 18).
On April 28, 1991, the plaintiff experienced another seizure as the result of a drop in the levels of Dilantin in his blood-stream. According to the examining physician's note relating to the April 1991 seizure, the seizure was related to sleep deprivation. The plaintiff's Dilantin level at the time of the April 1991 seizure was 4.1, with therapeutic levels being between 10 and 20. The plaintiff has not suffered another seizure since the April 1991 seizure, which occurred four years and two months before the defendant's conditional offer of employment to the plaintiff. In the past, the plaintiff has lost consciousness in connection with one or more seizures.
Richard Menet, M.D., performed the plaintiff's medical evaluation on behalf of the defendant in June 1995. Dr. Menet is not a specialist in epilepsy. He is a specialist in internal medicine and is an occupational health physician who has taken care of numerous patients with seizure disorders. At the time Dr. Menet examined the plaintiff in June 1995, the plaintiff had been seizure-free for over four years. Dr. Menet was aware of no medical evidence that the plaintiff was more likely to experience a seizure than someone who had been seizure-free for five years. In his examination of the plaintiff, Dr. Menet did not inquire whether the plaintiff had any other periods of sleep deprivation during the four years since his last seizure. Dr. Menet noted that the plaintiff's Dilantin levels were diminished at the time of the 1991 seizure and acknowledged that could have been a contributing factor.
Following his medical evaluation of the plaintiff, Dr. Menet recommended that the defendant not hire the plaintiff, stating that the plaintiff was "not fit for placement [as an] active duty firefighter." (Deposition of Richard Menet, M.D. [Menet Dep.] Exh. 2). This recommendation was made without Dr. Menet ever having seen the position description for firefighter, the position for which the plaintiff had applied. However, Dr. Menet felt he had adequate knowledge of the stressors facing firefighters.
In recommending that the defendant reject the plaintiff's firefighter application, Dr. Menet relied upon a 1988 "recommendation" from a United States Department of Transportation "consensus conference." The recommendation from the DOT conference was that persons with epilepsy be disqualified from engaging in over-the-road trucking unless they had been seizure-free without the assistance of medication for 10 years.
Dr. Menet based his opinion that the plaintiff was not fit for duty as a firefighter upon his examination of the plaintiff, his review of the plaintiff's medical records, whatever knowledge he had of the stressors a firefighter might encounter, and his discussion with the plaintiff's personal physician, Dr. Buffo. When Dr. Menet told Dr. Buffo that he thought firefighting would be a poor choice for the plaintiff, Dr. Buffo did not disagree. Dr. Menet based his opinion on his belief that the plaintiff posed a risk of a sudden, spontaneous and unexpected loss of consciousness due to his epilepsy.
George Morris III, M.D., is a neurologist with the Medical College of Wisconsin. Dr. Morris is an epilepsy specialist, 95% to 100% of whose patients have epilepsy. He generally places no restrictions on his epileptic patients who have been seizure-free for "sizable periods of time." (Morris Dep. at 41). In Dr. Morris' expert opinion, there are no health or safety reasons that preclude the plaintiff from serving as a firefighter for the City of Appleton. Dr. Morris also stated that jobs where sleep deprivation and dehydration are likely to occur may be poor choices for the plaintiff. He also stated that his knowledge of firefighting is limited to the job description he read and what he has seen on television. Dr. Morris did not conclude that fatigue was a reason for the plaintiff's seizures. Id. at 12. Before rendering his expert, neurological opinion, Dr. Morris reviewed the essential and other job functions and work requirements of the defendant's firefighters.
In Dr. Morris' expert opinion, the "[s]ustained periods of seizure freedom ... such as we're discussing in Mr. Arnold's situation ... are extraordinarily more likely to continue than they are not to [continue]...." It is rare for an individual who has been seizure-free for five years to have a seizure, meaning that such a seizure happens in less than one percent of epilepsy patients. Id. at 26-27. Dr. Morris expressed these opinions, but...
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