Gilday v. Mecosta County

• Decision Date: 30 October 1997
• Docket Number: No. 96-1571,96-1571
• Citation: 124 F.3d 760
• Parties: 7 A.D. Cases 1268, 7 A.D. Cases 348, 24 A.D.D. 111, 10 NDLR P [PG321 Kevin J. GILDAY, Plaintiff-Appellant, v. MECOSTA COUNTY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 760

124 F.3d 760

7 A.D. Cases 1268, 7 A.D. Cases 348,

24 A.D.D. 111, 10 NDLR P [PG321

Kevin J. GILDAY, Plaintiff-Appellant, v. MECOSTA COUNTY, et al., Defendants-Appellees.

No. 96-1571.

United States Court of Appeals, Sixth Circuit.

Argued June 13, 1997.

Decided Sept. 2, 1997.

As modified on Denial of Rehearing and Rehearing En Banc

Oct. 30, 1997.

Victor A. Zambardi (briefed), Brent A. Snavely (argued), Sills, Law, Essad, Fiedler & Charboneau, Bloomfield Hills, MI, for Plaintiff-Appellant.

Bonnie G. Toskey, (argued and briefed), Cohl, Stoker & Toskey, Lansing, MI, for Defendant-Appellee Mecosta County.

Martha M. Champine, (argued and briefed), Frank A. Guido (briefed), Peter W. Cravens, Livonia, MI, for Defendants-Appellees Firefighters Association of Michigan, James Martin, Daniel Farrow, Charles Smalley.

Before: KENNEDY, GUY, and MOORE, Circuit Judges.

MOORE, J., announced the judgment of the court and delivered the opinion of the court except as to Part III A 1. KENNEDY, J. (pp. 766-768), delivered a separate opinion concurring in part and dissenting in part in which RALPH B. GUY, Jr., J., joined, with RALPH B. GUY, Jr., J. (p. 768), also delivering a separate opinion concurring in part and dissenting in part. The opinion of the Judge Kennedy is the opinion of the court with respect to the issues discussed in Part III A 1 of Judge Moore's opinion.

OPINION

MOORE, Circuit Judge.

In its present posture, this case presents us with the narrow question of whether Plaintiff-Appellant Kevin J. Gilday presented sufficient evidence that he is a "qualified individual with a disability" under the Americans with Disabilities Act (ADA) to withstand a motion for summary judgment. See 42 U.S.C. § 12112(a). The district court held that Gilday had failed to present such evidence, and it granted defendants' motion for summary judgment. See Gilday v. Mecosta County, 920 F.Supp. 792, 796 (W.D.Mich.1996). We reverse.

I. FACTS

Gilday worked for Defendant-Appellee Mecosta County, Michigan, as an emergency medical technician from 1978 until he was fired in August 1994 for conduct unbecoming a paramedic and a history of rudeness to patients and colleagues. Id. at 793. In September 1991 Gilday was diagnosed with non-insulin-dependent diabetes mellitus, which required that Gilday take oral medication, monitor his blood-sugar levels, and follow what he characterizes as a strict diet and exercise regimen. Id.; Joint Appendix (J.A.) at 1450-51, 1119-21, 1148-49. Stress can also apparently cause his blood sugar to fluctuate wildly. J.A. at 1160-63, 1321-22. Gilday testified that if he departs from this regimen his blood sugar deviates from normal and he becomes frustrated and irritable. J.A. at 1250, 1320, 1424-25. Before he brought the condition under control he suffered a variety of other adverse symptoms. J.A. at 1112-13, 1413-14.

Gilday brought suit against Mecosta County, his union (Firefighters Association of Michigan), and individual officers of both entities under the ADA and various state-law causes of action. See J.A. at 25-41 (Amended Complaint). The essence of Gilday's theory of recovery under the ADA is that his diabetes constitutes a disability and that his employer should have granted his request for the reasonable accommodation of transferring him to a less chaotic station, which would have allowed Gilday to maintain the regimen that controls his diabetes. He argues that if he had been accommodated he would not have engaged in the rude conduct that led to his termination. The district court held that his diabetes did not significantly limit a major life activity and was therefore not a disability, granted summary judgment in favor of defendants under the ADA, and dismissed Gilday's state-law claims without prejudice. See 920 F.Supp. at 796.

II. JURISDICTION

The ADA incorporates many of the procedures and remedies of Title VII of the Civil Rights Act, including the provision in 42 U.S.C. § 2000e-5(f)(1) that requires a plaintiff to obtain a "right-to-sue" letter before filing suit. See 42 U.S.C. § 12117(a). Gilday did not receive his letter until after he had filed suit. See 920 F.Supp. at 794 n. 1. The district court held that Gilday's eventual receipt of a right-to-sue letter cured this defect. See id. (citing Jones v. American State Bank, 857 F.2d 494, 499-500 (8th Cir.1988)). Cf. Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1487-88 (6th Cir.1989) (discussing, but not deciding, issue). The defendants have not raised this issue on appeal, and we therefore need not decide it. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 1135, 71 L.Ed.2d 234 (1982) (holding that right-to-sue letter requirement is not jurisdictional and is therefore subject to waiver).

We have jurisdiction over Gilday's timely appeal under 28 U.S.C. § 1291.

III. DISCUSSION

"A person seeking relief under the ADA for termination must establish (1) that she is a disabled person within the meaning of the Act, (2) that she is qualified to perform the essential functions of her job with or without reasonable accommodation, and (3) that she suffered an adverse employment decision because of her disability." McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 371 (6th Cir.1997) (citation omitted). This appeal concerns only the first two of these elements. A district court may grant summary judgment only when there is no dispute as to any material question of fact and one party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56(c). See Hankins v. The Gap, Inc., 84 F.3d 797, 800 (6th Cir.1996). We review de novo a grant of summary judgment. Id.

A. Whether Gilday's Diabetes Constitutes a Disability Under the ADA

The ADA defines "disability" to include "a physical or mental impairment that substantially limits one or more of the major life activities of [the affected] individual." 42 U.S.C. § 12102(2)(A). The parties agree that Gilday's diabetes mellitus constitutes an impairment. See Brief of Appellees Mecosta County et al. at 16-17. Cf. 29 C.F.R. § 1630.2(h)(1) (defining impairment). The defendants, however, argue that this impairment is not a disability because it does not substantially limit any of Gilday's major life activities.

1. Whether the Court Should Take the Presence of Mitigating Measures into Account When Deciding Whether a Disability Exists

In holding that Gilday is not disabled, the district court focused exclusively on how the diabetes impacted on Gilday's life after he had been diagnosed with the condition and had controlled it with medication and proper rest and eating habits. See 920 F.Supp. at 795-96. Under this court's recent decision in McKay, the district court's holding that Gilday's diabetes, when properly treated and controlled, does not substantially impair his ability to work or any other major life activity is correct. See McKay, 110 F.3d at 373.

The EEOC's interpretive guidelines, however, state that "[t]he determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices." 29 C.F.R. § 1630 App. 1630.2(j). See also id. § 1630.2(h). The first question that we must address, then, is whether, in determining whether a person is disabled under the ADA, a court should look at the situation when the impairment is controlled by medication or treatment or, as the EEOC suggests, the court should evaluate the impairment without regard to the availability of such mitigating measures. The courts are divided on the question. Compare Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir.1997); Harris v. H & W Contracting Co., 102 F.3d 516, 520-21 (11th Cir.1996); Fallacaro v. Richardson, 965 F.Supp. 87, 93-94 (D.D.C.1997); Wilson v. Pennsylvania State Police Dep't, 964 F.Supp. 898, 907 (E.D.Pa.1997); Hendler v. Intelecom USA, Inc., 963 F.Supp. 200, 206 (E.D.N.Y.1997); Shiflett v. GE Fanuc Automation Corp., 960 F.Supp. 1022, 1029 (W.D.Va.1997); Sicard v. City of Sioux City 950 F.Supp. 1420, 1438-39 (N.D.Iowa 1996) (all explicitly adopting EEOC interpretation over direct challenges), and Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1349, 137 L.Ed.2d 506 (1997); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.1995); Thomas v. Davidson Academy, 846 F.Supp. 611, 617 (M.D.Tenn.1994) (all using EEOC interpretation without substantial analysis), with Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191 & n. 3 (5th Cir.1996) (dicta suggesting disagreement with EEOC view); Schluter v. Industrial Coils, Inc., 928 F.Supp. 1437, 1445 (W.D.Wis.1996) ("If an insulin-dependent diabetic can control her condition with the use of insulin ... she cannot argue that her life is substantially limited by her condition."); Murphy v. United Parcel Serv., Inc., 946 F.Supp. 872, 881 (D.Kan.1996) (rejecting EEOC view as contrary to statute ¹); Coghlan v. H.J. Heinz Co., 851 F.Supp. 808, 813-14 (N.D.Tex.1994) (same). As the majority of these courts have held, the EEOC's interpretation of the statute is the correct one. ²

First, the EEOC's interpretation is consistent with the text of the statute. See, e.g., Harris, 102 F.3d at 521. But see Coghlan, 851 F.Supp. at 813 (claiming that the EEOC's "gloss reads 'limits' right out of the statute because an insulin-dependent diabetic who takes insulin could perform major life activities and would therefore not be limited"). The statute defines disability to include, "with respect to an individual ... a physical ... impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A). A person with a serious disability who depends on medicine or a medical device to ameliorate the effects of that disability nonetheless has a limit on a major life activity: without the corrective measure the...