Cannon v. Jacobs Field Servs. N. Am., Inc.

• Citation: 813 F.3d 586
• Decision Date: 13 January 2016
• Docket Number: No. 15–20127.,15–20127.
• Parties: Michael A. CANNON, Plaintiff–Appellant v. JACOBS FIELD SERVICES NORTH AMERICA, INCORPORATED, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

813 F.3d 586

Michael A. CANNON, Plaintiff–Appellant

v.JACOBS FIELD SERVICES NORTH AMERICA, INCORPORATED, Defendant–Appellee.

No. 15–20127.

United States Court of Appeals, Fifth Circuit.

Jan. 13, 2016.

Worthy Walker (argued), Hayley Ellison, Elrod, P.L.L.C., Dallas, TX, for Plaintiff–Appellant.

Timothy M. Watson, Esq. (argued), Seyfarth Shaw, L.L.P., Houston, TX, for Defendant–Appellee.

Before JOLLY, HAYNES, and COSTA, Circuit Judges.

GREGG COSTA

, Circuit Judge:

Jacobs Field Services (JFS), a construction company, offered Michael Cannon a job as a field engineer at a Colorado mining site. But it quickly revoked the offer after learning that Cannon had a rotator cuff impairment that prevented him from lifting his right arm above the shoulder. Cannon brought suit under the Americans with Disabilities Act (ADA). The district court granted summary judgment, finding that Cannon could not prove that he was disabled or a qualified individual. Because the first finding ignored Congress's expansion of the definition of disability when it amended the ADA in 2008 and a factual dispute exists on the second, we reverse.

I.

Cannon is a mechanical engineer with over twenty years of experience.¹ In 2010, he had surgery to repair a torn rotator cuff in his right shoulder. The surgery was unsuccessful. As a result, Cannon can no longer raise his right arm above shoulder level, and is limited in his ability to push or pull with his right arm.

In 2011, Cannon applied for a job as a field engineer with JFS. JFS offered him the job. Cannon underwent a pre-employment physical. During the exam, Cannon told the doctor about his inoperable rotator cuff injury and that he had previously taken the prescription pain reliever Ultram

, which is the brand name version of the opioid Tramadol. Cannon explained that although he still had a prescription for Tramadol, he was no longer taking it. Cannon passed the drug test administered as part of the physical. The doctor cleared Cannon for the position so long as JFS offered the following accommodations for the rotator cuff injury: no driving company vehicles; no lifting, pushing, or pulling more than ten pounds; and no working with his hands above shoulder level.

JFS did not agree to the proposed accommodations. Instead, on July 18, the same day it received the "Medical Clearance" form with the list of accommodations, it determined that Cannon was physically incapable of performing the job. Although there is conflicting evidence about who made the decision to rescind the offer, the turning point occurred when human resources notified the technical services manager at the Colorado job site about the doctor's proposed accommodations and sought approval to proceed with Cannon's hiring. In response, the technical services manager stated that Cannon would "not be able to meet the project needs and required job duties" and explained that the job required an employee "capable of driving, climbing, lifting, and walking" as the job site was located "in the mountains with rough/rocky terrain" and "spread over several miles."

A human resources representative contacted Cannon around this time. Not mentioning the seemingly unequivocal position taken by the manager that Cannon could not do the job, the HR representative informed Cannon only that JFS had concerns that he could not reach above his head with his right arm. Cannon asked whether he could contact someone to resolve the concerns and was told to call the Occupational Health Department. Cannon promptly did so and was told that JFS needed him to clarify whether (1) he could climb a ladder and (2) was still taking Ultram

. Again, there was no indication that the job offer had been rescinded, and Cannon took the requests for additional information to mean that satisfactory responses would eliminate the concerns. Cannon provided the requested information, submitting documentation from his doctor stating that he was "specifically cleared for climbing vertical ladders and maintaining 3–point contact with either arm"² and was being weaned from Ultram.

No one from JFS followed up with Cannon to discuss the doctor's notes he had submitted. Instead, during a call on July 20, the same day Cannon submitted the clearance forms from his doctor, JFS informed Cannon that it was rescinding the offer based on his inability to climb a ladder. Cannon continued to try to prove to JFS that he was capable of climbing a ladder in an effort to have his offer reinstated—sending a video of himself climbing a ladder while maintaining 3–point contact. JFS did not respond. Cannon made additional attempts to try to contact JFS and discuss his injury and limitations. These efforts were unsuccessful.

Cannon filed a complaint with the EEOC. The EEOC concluded that JFS engaged in disability discrimination because: (1) JFS failed to engage in the interactive process with Cannon; (2) providing Cannon with the requested accommodations would not have imposed an undue hardship on JFS; and (3) JFS did not demonstrate that Cannon would have posed a "direct threat to himself or to his coworkers" as a field engineer. JFS refused to engage in the EEOC-directed conciliation process, so the EEOC issued a Notice of Right to Sue. Cannon filed this lawsuit.

The district court granted summary judgment in favor of JFS. It found that Cannon's rotator cuff injury did not render him disabled under the ADA, and, even if he were disabled, he was not qualified for the field engineer position. The district court did not specifically address a failure- to-accommodate claim that the parties had briefed.

II.

This Court reviews de novo a district court's grant of summary judgment, viewing "all facts and evidence in the light most favorable to the non-moving party." EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir.2014)

. Summary judgment is only appropriate if the movant has shown that there is no genuine issue as to any material fact such that the movant is entitled to judgment as a matter of law. Id. (citing Fed.R.Civ.P. 56(a) ).

III.

The ADA prohibits discrimination against on the basis of a disability. Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 221–22 (5th Cir.2011)

. As with other antidiscrimination statutes in the employment context, a plaintiff trying to show a violation of the ADA using circumstantial evidence must satisfy the McDonnell Douglas burden-shifting framework. E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir.2009). To make out his prima facie showing under that framework, Cannon must show that: (1) the plaintiff has a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment decision on account of his disability. EEOC v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir.2014). If he makes that showing, a presumption of discrimination arises, and the employer must "articulate a legitimate non-discriminatory reason for the adverse employment action." Chevron Phillips Chem. Co., LP, 570 F.3d at 615. The burden then shifts to the plaintiff to produce evidence from which a jury could conclude that the employer's articulated reason is pretextual. See id.

A.

Under the ADA, an individual suffers from a "disability," if that individual has "a physical ... impairment that substantially limits one or more major life activities." 42 U.S.C. § 12102(1)

. The district court concluded that Cannon was not disabled because his "injured shoulder did not substantially impair[ ] his daily functioning." Whatever merit that finding of no disability may have had under the original ADA, it is at odds with changes brought about by the ADA Amendments Act of 2008. Pub.L. No. 110–325, 122 Stat. 3553 (2008). Those amendments "make it easier for people with disabilities to obtain protection under the ADA." 29 C.F.R. § 1630.1(c)(4). A principal way in which Congress accomplished that goal was to broaden the definition of "disability." Id. Two features of that expanded concept of disability support a finding of disability in this case.

The first aspect of the 2008 Act that helps establish Cannon's injury as a disability is its clarification that the Supreme Court and EEOC had interpreted the "substantially limits" standard to be a more demanding one than Congress had intended. 42 U.S.C. § 12101

note (ADA Amendments Act of 2008) (expressly disapproving of prior Supreme Court decisions and EEOC interpretations of the "substantially limits" standard); Neely v. PSEG Tex., Ltd. P'ship, 735 F.3d 242, 245 (5th Cir.2013) (stating that the ADAAA was passed to correct the perceived misconception that the "substantially limits" standard is a demanding inquiry). The 2008 Act thus provides "Rules of Construction Regarding the Definition of Disability," which focus on construing the "substantially limits" standard "in favor of broad coverage." 42 U.S.C. § 12102(4). EEOC regulations implementing the 2008 Amendments follow this command in concluding that "the threshold issue of whether an impairment ‘substantially limits' a major life activity should not demand extensive analysis," and the term "shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for ‘substantially limits' applied" previously. 29 C.F.R. § 1630.2(j)(1)(iii)-(iv)

. The inquiry in this post-amendment case is thus whether Cannon's impairment substantially limits his ability "to perform a major life activity as compared to most people in the general population." 29 C.F.R. § 1630.2(j)(1)(ii).

There is ample evidence to support a conclusion that Cannon's injury qualifies as a disability under the more relaxed standard. Although the district court concluded otherwise, the ADA includes "lifting" in its list of major life activities. See 42 U.S.C. § 12102(2)(A)

(stating that "major life activities include, but are not limited to ... lifting, bending, speaking, [etc.]"); see also 29 C.F.R. § 1630.2(i) (also including "reaching" as a major life activity). Given...