Hale v. Johnson

• Citation: 245 F.Supp.3d 979
• Decision Date: 28 March 2017
• Docket Number: Case No. 1:15–cv–14
• Parties: James L. HALE, Plaintiff, v. Bill JOHNSON, President and CEO, Tennessee Valley Authority, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

245 F.Supp.3d 979

James L. HALE, Plaintiff,

v.Bill JOHNSON, President and CEO, Tennessee Valley Authority, Defendant.

Case No. 1:15–cv–14

United States District Court, E.D. Tennessee, Southern Division, at CHATTANOOGA.

Signed March 28, 2017

Robert Wisdom Wheeler, Douglas S. Hamill, Burnette, Dobson & Pinchak, Chattanooga, TN, for Plaintiff.

Edwin W. Small, Michael Vincent Bernier, Tricia L. Roelofs, Office of General Counsel, Knoxville, TN, for Defendant.

ORDER

HARRY S. MATTICE, JR.

THIS MATTER is before the Court on the Motion for Summary Judgment (Doc. 10) filed by Plaintiff James Hale and the Motion for Summary Judgment (Doc. 25) filed by Defendant Bill Johnson. For the reasons set forth below, the Court finds that Plaintiff's Motion for Summary Judgment (Doc. 10) should be DENIED, and that Defendant's Motion for Summary Judgment (Doc. 25) should be GRANTED IN PART and DENIED IN PART.

I. FACTUAL AND PROCEDURAL BACKGROUND

In this matter, Plaintiff James Hale alleges violations of the Rehabilitation Act, 29 U.S.C. § 701, which, inter alia , affords certain protections to disabled individuals employed by the federal government, its agencies, or contractors. From July 2009 to September 2013, Plaintiff served as a nuclear security officer ("NSO') at the Sequoyah nuclear plant in Soddy Daisy, Tennessee. (Docs. 1 at 2; 10–1 at 2–3). The Sequoyah plant is owned by the United States and operated by the Tennessee Valley Authority ("TVA"). The United States Nuclear Regulatory Commission ("NRC") grants TVA its requisite operating license, and issues guidelines that TVA must follow in operating the nuclear plant.¹ (Doc. 26 at 4). On the basis of these regulations, all security officers working at the Sequoyah plant must obtain and maintain a S11 medical clearance as a condition of their employment. (Doc. 10–2 at 13–15).

Plaintiff suffers from moderate chronic obstructive pulmonary disease

("COPD"); an illness that affects an individual's ability to breathe. (Doc. 10–5 at 2). The record reflects that TVA was aware of Plaintiff's COPD diagnosis when he was hired in 2009. (Doc. 10–2 at 33–34). Despite his condition, Plaintiff passed, and for the most part, excelled, at all TVA physical examinations. He satisfactorily maintained his S11 clearance in 2009, 2010, and 2011, scoring within the "fit" category for overall fitness and for numerous subcategories, including aerobic fitness. (Docs. 10–2 at 29–30; 10–7). Plaintiff also completed an annual tactical weapons qualification course, which required him to run through a training course while firing at various targets. (Docs. 11 at 4; 10–2 at 6, 8–9).

Beginning in 2012, Defendant began a pilot program that changed the physical requirements for the S11 clearance examination. (Docs. 12–3; 26 at 5, 8). Specifically, Defendant required its NSOs to pass a pulmonary function test

("PFT"). (Id ). The PFT requires the user to breathe into a mouthpiece that is connected to a spirometer and analyzes how well the lungs can quickly move large volumes of air. (Doc. 12–3 at 2). According to Defendant, the purpose of the PFT is to ascertain whether the NSOs can adequately breathe through a gas mask. Defendant contends that the PFT is a necessary in order to comply with guidelines established by the NRC, although the applicable guidelines make no mention of the PFT. (Doc. 26 at 5). Although the stated purpose of the PFT was to measure an NSO's ability to perform his or her job functions while wearing a gas mask, the test, rather curiously, does not require the NSO to wear a gas mask.

During the pilot stage, Plaintiff failed the PFT due to his COPD; however, because the test was not yet a mandatory component of the S11 clearance, Plaintiff was permitted to perform an alternate "practical" PFT, which he passed, thus securing his S11 clearance for 2012. (Docs. 10–2 at 31–32; 34–2 at 12–14).

Beginning in January 2013, Defendant made the PFT an official requirement for obtaining the S11 clearance. (Doc. 12–3 at 5). Although the testing requirements changed, the assigned duties and responsibilities of the NSOs did not. In March 2013, Plaintiff took his S11 clearance examination. Although he passed all other portions of the exam and scored well on the remainder of the physical testing, he failed the PFT. Plaintiff failed the PFT again in July 2013 and August 2013. (Docs. 11 at 5; 12–3 at 5). Plaintiff alleges that he asked TVA medical personnel if he could take the same practical PFT that he took in 2012, but they refused. (Doc. 15 at 12–13). Because he failed the PFT and was unable to obtain his S11 clearance, Plaintiff was terminated from his employment with Defendant on September 26, 2013. (Doc. 10–1 at 2).

Plaintiff originally filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in October 2013. (Doc. 10–2 at 3). Ultimately, the EEOC failed to hold a hearing or issue its decision within the requisite timeframe. 42 U.S.C. § 2000e–16(c). Thus, on January 15, 2015, Plaintiff commenced the instant action. (Doc. 1).

Both parties have filed motions for summary judgment. (Docs. 10, 25).² The Court, having carefully reviewed the parties' submissions, finds that the issues in this matter are fully briefed and ready for disposition.

II. STANDARD

In their respective cross motions, each party contends that he is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56 instructs the Court to grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by "citing to particular parts of materials in the record," including depositions, documents, affidavits or declarations, stipulations, or other materials, or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). When ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Nat'l Satellite Sports, Inc. v. Eliadis Inc. , 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply "by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. Where the movant has satisfied this burden, the nonmoving party cannot "rest upon its ... pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial." Moldowan v. City of Warren , 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita , 475 U.S. at 586, 106 S.Ct. 1348 ; Fed. R. Civ. P. 56 ). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson , 477 U.S. at 248–49, 106 S.Ct. 2505 (citing First Nat'l Bank of Ariz. v. Cities Serv. Co ., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ); see also White v. Wyndham Vacation Ownership, Inc. , 617 F.3d 472, 475–76 (6th Cir. 2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ; Moldowan , 578 F.3d at 374. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex , 477 U.S. at 323, 106 S.Ct. 2548.

III. ANALYSIS

Plaintiff brings two distinct claims under the Rehabilitation Act, 29 U.S.C. § 701, which applies to government agencies and incorporates the standards of the Americans with Disabilities Act ("ADA"). See 29 C.F.R. § 1614.203(b) ("The standards used to determine whether section 501 of the Rehabilitation Act of 1973 ... has been violated ... shall be the standards applied under Titles I and V (sections 501 through 504 and 510) of the Americans with Disabilities Act of 1990[.]"). Accordingly, cases addressing the ADA are generally relevant for purposes of resolving claims brought under the Rehabilitation Act. Doe v. Salvation Army in U.S ., 531 F.3d 355, 357 (6th Cir. 2008) ("We review claims brought under the Rehabilitation Act as we would claims brought under the Americans with Disabilities Act of 1990.").

Plaintiff first alleges that Defendant's PFT requirement has the unlawful effect of screening out individuals with pulmonary issues; second, Plaintiff alleges that Defendant failed to afford him a reasonable accommodation. The Court will address each of these claims in turn.

A. Disparate Impact

First, Plaintiff alleges what is known as a "disparate impact" claim, asserting that Defendant's "newly implemented PFT requirement has the effect of discrimination against individuals with pulmonary disabilities," such as himself. Disparate impact actions "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Int'l...