Equal Employment Opportunity Commission v. BNSF Railway Co., 041117 FED10, 15-3259

Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
Attorney:Barbara L. Sloan (P. David Lopez, General Counsel, Jennifer S. Goldstein, Associate General Counsel, and Margo Pave, Assistant General Counsel, with her on the briefs), Equal Employment Opportunity Commission, Washington, D.C., for Plaintiff-Appellant. Marie L. Gockel (Lynne Jaben Bratcher, with ...
Judge Panel:Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.
Opinion Judge:PHILLIPS, CIRCUIT JUDGE.
Party Name:EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant-Appellee. and KENT DUTY, Intervenor Plaintiff - Appellant, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant, and KENT DUTY, Intervenor Plaintiff, v. BNSF RAILWAY COMPANY, Defendant-Appellee.
Case Date:April 11, 2017
Docket Nº:15-3259, 15-3265
 
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

and

KENT DUTY, Intervenor Plaintiff - Appellant,

v.

BNSF RAILWAY COMPANY, Defendant-Appellee.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant,

and

KENT DUTY, Intervenor Plaintiff,

v.

BNSF RAILWAY COMPANY, Defendant-Appellee.

Nos. 15-3259, 15-3265

United States Court of Appeals, Tenth Circuit

April 11, 2017

         Appeal from the United States District Court(D.C. No. 2:12-CV-02634-JWL) for the District of Kansas

          Barbara L. Sloan (P. David Lopez, General Counsel, Jennifer S. Goldstein, Associate General Counsel, and Margo Pave, Assistant General Counsel, with her on the briefs), Equal Employment Opportunity Commission, Washington, D.C., for Plaintiff-Appellant.

          Marie L. Gockel (Lynne Jaben Bratcher, with her on the briefs), Bratcher Gockel Law, L.C., Kansas City, Missouri, for Plaintiff Intervenor-Appellant.

          Bryan P. Neal (Stephen F Fink, with him on the brief) Thompson & Knight, LLP, Dallas, Texas, for Defendant-Appellee.

          Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.

          PHILLIPS, CIRCUIT JUDGE.

         Kent Duty filed this suit against a railroad company, BNSF Railway Company ("BNSF"), after he applied to work there as a locomotive electrician. Duty has an impairment that limits his grip strength in his right hand. Fearing that Duty would fall from ladders, BNSF revoked his offer for employment. Duty and the Equal Employment Opportunity Commission (the "Commission") sued BNSF for employment discrimination under the Americans with Disabilities Act (the "ADA"). The ADA protects disabled workers from discrimination. But it limits its protection by recognizing that not all impairments are disabilities. Applying the ADA's definition of "disability, " the district court found that Kent Duty was not disabled and granted summary judgment to BNSF. On appeal, we affirm.[1]

         BACKGROUND

         I. Duty's Injury and Work History

         At age sixteen, a car accident left Kent Duty with severe injuries to his right arm. He suffered from nerve and muscle damage, which caused some of the joints in his right hand to contract into a visible "clawhand." Duty Opening Br. at 10. After two years of physical therapy, Duty's right hand reached its maximum potential recovery, but he still lacks grip strength and cannot oppose his right thumb or perform fine-motor activities. With practice, he's retrained himself to become left-handed and use his right hand as a "helper" to assist him in various tasks. The tasks that he can perform include holding, grasping, turning, and pulling. He can also pinch objects with his thumb and index finger and carry twenty-five pounds with his right arm and up to five pounds with his right hand.

         Even with his impairment, Duty has been a capable employee. For over twenty years, he worked as a maintenance manager for a dry-cleaning company where he installed and maintained its equipment and buildings. There, he gained electrical experience and worked with a variety of tools including drills, saws, wrenches, sanders, and blow guns. He could climb ladders and perform all of his job functions.

          His employer considered him a valuable employee and gave him consistent raises and bonuses.

         II. Duty's Application to BNSF

         When his employer declared bankruptcy, however, Duty started looking for another job. He applied to work at BNSF as a locomotive electrician. The job posting stated that BNSF expected its locomotive electricians to climb on and off locomotives and equipment, work around heavy machinery, lift equipment, use hand tools, and maintain and repair high-voltage electrical equipment.

         Duty interviewed with a panel of BNSF employees who evaluated his electrical experience. Based on his work history, the panel recommended him for employment. Members of the panel noticed his hand condition but didn't factor it into their consideration. BNSF made Duty a conditional job offer in which it explained that Duty would have to pass a background check and drug screening, and complete a medical-history questionnaire.

         On the questionnaire, Duty revealed that he had nerve trauma and had undergone surgery in the past. BNSF's third-party medical contractor, Comprehensive Health Services, contacted Duty and arranged a medical exam with its physician, Dr. Gil Wright. Because of Duty's answers to the questionnaire, Dr. Wright performed an occupational assessment and examined Duty's musculoskeletal capabilities. His exam showed that Duty had a normal range of motion in his right shoulder and elbow, but that his range of motion in his right wrist, particularly his backward movement (dorsi-flexion), was zero when a normal degree of range is 60.

          The exam also revealed other abnormal results. On his written opinion form, Dr. Wright checked the box "Not Qualified - further evaluation required." EEOC App. vol. 5 at 1343. Because Health Services is an information-gathering service, it can only recommend that BNSF disqualify an employee from service but cannot itself disqualify anyone. Health Services sent its evaluation to BNSF's in-house medical staff where the chief medical officer, Dr. Michael Jarrard, reviewed it.

         Dr. Jarrard is an occupational-medicine physician. He determines an employee's fitness for work and has the authority to disqualify an employee from service. When Dr. Jarrard reviewed Dr. Wright's findings, he was principally concerned with Duty's lack of grip strength and his ability to satisfy BNSF's three-point-contact rule, a safety standard that applies to climbing in the workplace.

         The parties dispute the specifics of BNSF's three-point-contact rule. The rule comes from the Occupational Safety and Health Administration (OSHA), a federal agency that sets minimum workplace health and safety standards. OSHA's version of the rule requires that employees maintain three points of contact when climbing, which means that two feet and one hand or two hands and one foot contact the ladder at all times. From Dr. Jarrard's understanding, the rule requires that employees have the strength to support their entire body weight with one hand to prevent falls when they lose their footing.

         Before he could determine whether Duty qualified for the position, Dr. Jarrard needed additional information on Duty's grip, grasp, and pinch strength.

          III. BNSF Revokes Duty's Offer

         Dr. Jarrard, through his medical team, notified Duty that he needed a Functional Capacity Evaluation from a physical or occupational therapist measuring Duty's full range of motion; his grip, pinch, and palmer-grip strength; and his fingertip dexterity. Duty wrote back explaining that he could use his hand and asked whether the exam was necessary. EEOC App. vol. 6 at 1382. When no one responded, Duty had the evaluation done.

         The evaluation revealed that Duty had a passive, but not active, range of motion in his right fingers, meaning those fingers couldn't move on their own but could be moved by another force (they were flexible)....

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