Harrison v. Benchmark Electronics Huntsville, Inc.

• Decision Date: 11 January 2010
• Docket Number: No. 08-16656.,08-16656.
• Parties: John HARRISON, Plaintiff-Appellant, v. BENCHMARK ELECTRONICS HUNTSVILLE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

593 F.3d 1206

John HARRISON, Plaintiff-Appellant, v. BENCHMARK ELECTRONICS HUNTSVILLE, INC., Defendant-Appellee.

No. 08-16656.

United States Court of Appeals, Eleventh Circuit.

January 11, 2010.

Henry F. Sherrod, III, Henry F. Sherrod, III, P.C., Florence, AL, for Harrison.

Allen L. Anderson, Michael L. Fees, Stacy L. Moon, Fees & Burgess, P.C., Huntsville, AL, for Defendant-Appellee.

Deborah A. Mattison, Wiggins, Childs, Quinn & Pantazis. LLC, Birmingham, AL,

James M. Tucker, EEOC, Washington, DC, for Amici Curiae.

Appeal from the United States District Court for the Northern District of Alabama.

Before DUBINA, Chief Judge, and BIRCH and SILER,^* Circuit Judges.

SILER, Circuit Judge:

INTRODUCTION

John Harrison sued Benchmark Electronics Huntsville, Inc. ("BEHI"), alleging, inter alia, that BEHI engaged in an improper medical inquiry, in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112(d)(2). The district court granted summary judgment in favor BEHI on all claims. We reverse.

I.

A.

In November 2005, Aerotek, a company that places temporary workers at BEHI, assigned Harrison to work at BEHI. Harrison worked as a "debug tech," and his responsibilities included identifying problems with, repairing, and testing electronic boards. Although he suffers from epilepsy and takes barbiturates to control his condition, the Equal Employment Opportunity Commission ("EEOC") determined that he did not have a disability as defined under the ADA.

At the time Harrison commenced his temporary position at BEHI, the company had a practice of screening temporary employees for potential permanent employment. If a supervisor believed that a temporary employee would meet BEHI's needs, he would invite that employee to submit an application for employment and complete the necessary drug testing and background check. Usually, after a candidate had cleared both a background and drug test,¹ human resources would extend him an offer, unless the hiring manager instructed otherwise.

On May 19, 2006, Harrison submitted an application for permanent employment, at the request of his supervisor, Don Anthony. Along with his application, he consented to a drug test. In July 2006, Anthony called Faye Robinson, the director of BEHI's human services department, to get the requisitions for three permanent positions, including the position for which Harrison had applied. He identified Harrison as the only person he was interested in employing. After corporate had approved his requisitions, Anthony told Harrison to take the drug test, and he complied. Harrison was at no time informed that his performance was deficient or that he had an attitude problem.

In July 2006, Lena Williams, employed in BEHI's human resources department, was notified that Harrison's test had come back positive and was awaiting review by a Medical Review Officer ("MRO"). She called Anthony and asked him to "send [Harrison] her way." She stated that she did not tell Anthony about the positive drug screen at any time, because she had a duty to keep such information confidential. Robinson also testified that as a matter of policy her department never discloses the results—positive or negative—of an employee's drug test.

Regardless of how he found out about the drug test results, Anthony informed Harrison that he had tested positive for barbiturates. Harrison responded by claiming to have a prescription, which Anthony instructed him to retrieve. Anthony then called the MRO and passed the phone to Harrison, who answered a series of questions about the medication. The MRO asked him how long he had been disabled, what medication he took, and how long he had taken it. He replied that he had epilepsy since he was two years old, he took barbiturates to control it, and he stated the amount of his dosage. Anthony did not ask any questions, but he remained in the room during this colloquy and heard Harrison's responses to the MRO's questions.

On July 19, 2006, the MRO reported to Williams that Harrison's drug test had been cleared. By this time, Williams had also received clearance to hire Harrison, information she passed on to Anthony. However, Anthony told human resources not to prepare an offer letter for Harrison.² Anthony then asked Aerotek not to return Harrison to BEHI. On August 18, 2006, Aerotek informed Harrison that he would not be returning to BEHI, because he had a performance and attitude problem, and because he had been accused of threatening Anthony. He was fired from Aerotek that same day.

Through the course of the litigation, Anthony has asserted three reasons to support his decision not to hire Harrison: (1) he was too busy preparing for a company-wide audit to extend the offer; (2) Harrison had made threats against him;³ and (3) several employees had expressed concern to him about Harrison's competence.⁴ Anthony maintains that, in light of these concerns, he simply needed more time to evaluate Harrison. BEHI has also asserted that Anthony lacked the authority to hire Harrison, because corporate had closed all open positions and revoked all previously approved requisitions for employees, including the position for which Harrison applied, on August 10, 2006. Harrison argues that the revocation cannot support Anthony's decision not to hire him, because it came weeks after Anthony told human resources not to prepare the offer letter.

B.

On May 3, 2007, Harrison sued BEHI⁵ in the United States District Court for the Northern District of Alabama.⁶ He alleged various violations of the ADA: namely, that (1) BEHI engaged in an improper medical inquiry, (2) he was not hired due to a perceived disability, and (3) he was terminated due to a perceived disability. BEHI denied these claims and moved for summary judgment, focusing solely on the perceived disability claim. In his response, Harrison maintained that he had made out a prima facie case for an improper medical inquiry and a perceived disability. BEHI replied, arguing that (1) the Eleventh Circuit has not yet recognized a private right of action for the making of an improper medical inquiry; (2) even if it had, Harrison failed to plead it; and (3) regardless, the undisputed material facts established that BEHI was entitled to judgment as a matter of law.

The district court granted BEHI's motion, as to both the pre-employment medical inquiry and perceived disability claims.⁷ With regard to the medical inquiry claim, the court "agree[d]" with BEHI that Harrison had failed to plead it. Despite this statement, the court went on to examine the merits of the pre-employment medical inquiry claim. The court first acknowledged that we have never held that a private right of action exists for such claims. Even assuming a private right of action, however, the court held that Harrison could not make out a prima facie case for an improper medical inquiry. Because Harrison "tested positive for barbiturates," the court held that BEHI was then authorized to ask Harrison whether he "had a legitimate use for such medication."

II.

We review the district court's "grant of summary judgment de novo, applying the same legal standards as the district court." Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir.2007). In so doing, we must view all evidence and draw all reasonable inferences in favor of the non-moving party. Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir.2008).

III.

A.

Before addressing the merits of Harrison's appeal, we must first examine whether he, a non-disabled individual, can state a private cause of action for a prohibited medical inquiry in violation of § 12112(d). We have not yet decided "whether a plaintiff has a private right of action under 42 U.S.C. § 12112(d)(2)." Bennett v. Dominguez, 196 Fed.Appx. 785, 793 (11th Cir. 2006); see also Posey v. Alternative Home Health Care of Lee County, Inc., No. 07-cv-103, 2008 WL 2047935, at *2 (M.D.Fla. May 13, 2008) (noting that while we have not yet "determined whether a private cause of action is available under § 12112(d)(2), . . . other courts have found such actions to be proper"). Harrison urges us to join our sister circuits who are unanimous in recognizing a private cause of action irrespective of the plaintiff's disability status under § 12112(d)(2). See, e.g., Murdock v. Washington, 193 F.3d 510, 512 (7th Cir.1999); Fredenburg v. Contra Costa County Dep't of Health Servs., 172 F.3d 1176, 1182 (9th Cir.1999); Griffin v. Steeltek, 160 F.3d 591 (10th Cir. 1998); see also Conroy v. N.Y. State Dep't of Corr. Svcs., 333 F.3d 88, 94-95 (2d Cir. 2003) (stating the same in the context of § 12112(d)(4)); Cossette v. Minn. Power & Light, 188 F.3d 964, 969-70 (8th Cir.1999) (same).

1.

The ADA was enacted "to provide a clear and comprehensive national mandate to end discrimination against individuals with disabilities and to bring persons with disabilities into the economic and social mainstream of American life." H.R.Rep. No. 101-485, pt. 2, at 23 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 304. With regard to employment, the ADA makes it illegal for a "covered entity" to "discriminate against a qualified individual with a disability." § 12112(a). The Act also restricts an employer's ability to make medical examinations or inquiries that relate to an applicant's disability status. See § 12112(d). Subsection 12112(d)(1) states the general bar against using medical examinations or inquiries to discriminate. Subsections (d)(2) through (d)(4) provide further guidance regarding three distinct phases of the application process: (1) pre-offer, see § 12112(d)(2); (2) post-offer but pre-employment, see § 12112(d)(3); and (3) employment, see § 12112(d)(4).

In the pre-offer stage, which is at issue in this case, "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." § 12112(d)(2)(...