Griffin v. Steeltek, Inc., 97-5103

• Citation: 160 F.3d 591
• Decision Date: 29 October 1998
• Docket Number: No. 97-5103,97-5103
• Parties: 8 A.D. Cases 1249, 13 NDLR P 220, 98 CJ C.A.R. 5627 Randy GRIFFIN, Plaintiff-Appellant, v. STEELTEK, INC., Defendant-Appellee. Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 591

160 F.3d 591

8 A.D. Cases 1249, 13 NDLR P 220, 98

CJ C.A.R. 5627

Randy GRIFFIN, Plaintiff-Appellant, v. STEELTEK, INC., Defendant-Appellee Equal Employment Opportunity Commission, Amicus Curiae.

No. 97-5103.

United States Court of Appeals Tenth Circuit.

Oct. 29, 1998.

Steven R. Hickman, Tulsa, OK, for Plaintiff-Appellant.

William S. Leach, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, OK, for Defendant-Appellee.

C. Gregory Stewart, General Counsel, J. Ray Terry, Jr., Deputy General Counsel, Gwendolyn Young Reams, Associate General Counsel, Carolyn L. Wheeler, Assistant General Counsel, Paula R. Bruner, Attorney, Equal Opportunity Employment Commission, Washington, DC, on brief for Amicus Curiae.

Before BALDOCK, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and EBEL, Circuit Judge.

EBEL, Circuit Judge.

This case requires us to determine whether a non-disabled individual has a cause of action under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d)(2)(A), when as a job applicant he or she is asked questions regarding his or her medical history or condition on an employment application. We conclude that in light of the language of the statute and the purposes of its enactment, a non-disabled job applicant does have such a cause of action. Consequently, we reverse the district court's grant of summary judgment in favor of the employer in this case.

BACKGROUND

Plaintiff-Appellant Randy Griffin ("Griffin"), a non-disabled individual, applied for a position as a grinder with Defendant-Appellee Steeltek, Inc. ("Steeltek"). Griffin was not hired for the position, allegedly because he did not have the two years of grinding experience required by Steeltek. According to Griffin, he was never told that Steeltek required two years of grinding experience, and in fact was told at the time he applied that he was the best qualified applicant for the position.

After Steeltek declined to hire Griffin, Griffin filed suit in the Northern District of Oklahoma, contending that Steeltek's application process violated the ADA, 42 U.S.C. § 12112(d)(2)(A). That section prohibits employers from asking a job applicant "whether such applicant is an individual with a disability or as to the nature or severity of such disability." Griffin identified two questions on Steeltek's employment application that allegedly violated § 12112(d)(2)(A). The first question asked: "Have you received Worker's Compensation or Disability Income payments? If yes, describe." The second asked: "Have you physical defects which preclude you from performing certain jobs? If yes, describe." In response to the first question, Griffin wrote "3 degree burn to hand & foot, surgery to elbow, spain [sic] in shoulder." He left the answer space blank in response to the second question. Griffin did not contend that he was disabled or that Steeltek perceived him to be disabled. Rather, the sole basis of Griffin's claim was that Steeltek violated the ADA by asking these two questions and then by not hiring him because of his responses to these improper questions. Griffin also advanced evidence in an affidavit that the reason Steeltek said it did not hire him--because he did not have two years of grinding experience--was pretextual. His affidavit stated that he was never told by Steeltek that a set amount of time of prior experience was required for the job, and, in fact, he was told he was the "most qualified applicant" and "would probably be hired" based upon his experience.

The district court held that "[b]ecause [Griffin] has failed to allege either that he was disabled or perceived as disabled as defined under the ADA, he has not established a prima facie case of disability discrimination." Hence, Steeltek was entitled to summary judgment "as a matter of law."

Because the district court ruled as a matter of law that Griffin had failed to establish a prima facie case because he was neither disabled nor perceived to be disabled, the court never reached the issue of whether Griffin was causally injured by being required to answer the impermissible questions. Additionally, the court did not rule whether Steeltek's proffered reason for not hiring Griffin--that he lacked two years of grinding experience--was pretextual. The district court did observe, however, that "the parties dispute whether this requirement [of two years grinding experience] was ever revealed to [Griffin], or whether the requirement actually existed." By acknowledging that the issue of injury and the bona fides of Steeltek's proffered reasons were in dispute, the district court implicitly acknowledged that summary judgment would not be appropriate at this time on those grounds. Thus, as the case comes before us and as it was ruled upon below, it presents a pure legal question: does a job applicant fail as a matter of law to state a prima facie claim under 42 U.S.C. § 12112(d)(2) of the Americans with Disabilities Act if the applicant is neither disabled nor perceived to be disabled. We believe that question has already been answered in the negative in our Circuit in Roe v. Cheyenne Mountain Conf. Resort, Inc., 124 F.3d 1221 (10th Cir.1997), and that

Roe requires us to reverse and remand for further proceedings in this case.

DISCUSSION

We review a grant of summary judgment de novo, applying the same standard under Federal Rule of Civil Procedure 56(c) as the district court. See Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1081 (10th Cir.1997). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id.

The ADA section at issue in this case, 42 U.S.C. § 12112(d)(2), states:

(d) Medical examinations and inquiries

...

(2) Preemployment

(A) Prohibited examination or inquiry

Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.

(B) Acceptable inquiry

A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.

Griffin and the EEOC argue that this section provides all applicants, disabled or not, with a cause of action against employers who include impermissible questions on their employment applications. For the purpose of the motion for summary judgment, we shall assume without deciding that the two questions here at issue would have been impermissible and actionable if directed toward a disabled job applicant. ¹ The issue we must decide is whether improper medical questions are actionable under § 12112(d)(2) if asked of a non-disabled applicant.

Although we have never had occasion to analyze § 12112(d)(2), this court was recently called upon to construe § 12112(d)(4), the § 12112(d) subsection prohibiting medical examinations and inquiries of current employees. ² See Roe v. Cheyenne Mountain Conf. Resort, Inc., 124 F.3d 1221 (10th Cir.1997). In Roe, defendant employers instituted a broad drug and alcohol testing policy that, inter alia, required employees to report to their supervisors any type of prescription medication they used. See id. at 1226. The plaintiff there, who was an employee of the defendant, claimed that this requirement violated § 12112(d)(4) and was granted summary judgment. See id. at 1226-27.

On appeal, the employer contended that plaintiff lacked standing to bring this claim because she had not shown that she was a disabled individual. See id. at 1228. We rejected this argument, noting that "whether a plaintiff suing under the ADA comes within the definition of a person with a disability is simply not a question of standing but of whether an essential element of the claim can be established." Id. at 1229. Plaintiff had standing because she "sufficiently alleged" each of the elements of standing: that she had suffered an injury in fact, that the defendant's conduct caused her injury, and that it was likely a favorable decision would redress the injury. See id. Addressing whether plaintiff had established an essential element of her claim, we held "plaintiff's ability to maintain the particular ADA claim she has alleged does not require her to prove that she is an individual with a disability." Id. We continued:

As the district judge aptly observed, adopting defendant's position would defeat the very purpose of prohibiting disability The ADA explicitly prohibits employers from making disability-related inquiries of employees, unless the inquiry is job-related or consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A). This provision applies to all employees. Unlike suits based on a failure to provide a reasonable accommodation, this provision is not limited to qualified individuals with disabilities. Cf. 42 U.S.C. § 12112(b)(5)(A).

                related inquiries:  "It makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability."   We also agree with the district court's reasoning that this common sense rejection of defendant's argument is consistent with the statutory language
                

Id. (citation omitted). ³

Although the Roe panel specifically stated that it was not deciding the issue before us today pertaining to job applicants and § 12112(d)(2), see id. at 1229 n. 5, we find that the reasoning articulated in Roe applies equally to § 12112(d)(2). The language of the two statutes is very similar. Section 12112(d)(2) uses the term "job applicant," while § 12112(d)(4) uses the term "employee." It is important that neither section uses the narrower defined term of "qualified individual with a disability," which is the term Congress used in much of § 12112 but chose not to use in § 12112(d)(2) or § 12112(d)(4). Compare 42 U.S.C. §§ 12112(a), 12112(b). The use of terms in §§ 12112(d)(2) & (4) defining a broader...