Kemp v. Holder

• Decision Date: 22 June 2010
• Docket Number: No. 09-30255.,09-30255.
• Citation: 610 F.3d 231
• Parties: Don KEMP, Plaintiff-Appellant,v.Eric H. HOLDER, Jr., United States Department of Justice; AKAL Security, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

610 F.3d 231

Don KEMP, Plaintiff-Appellant,v.Eric H. HOLDER, Jr., United States Department of Justice; AKAL Security, Inc., Defendants-Appellees.

No. 09-30255.

United States Court of Appeals, Fifth Circuit.

June 22, 2010.

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Allison Anne Jones (argued), Davidson, Jones & Summers, Shreveport, LA, for Plaintiff-Appellant.

Eric Fleisig-Greene (argued), Marleigh D. Dover, Asst. Director, Dept. of Justice, Civ. Div., Appellate Staff, Washington, DC, Jennifer Bailey Frederick, Asst. U.S. Atty., Lafayette, LA, for Holder, U.S. Dept. of Justice.

Nora Montgomery Stelly (argued), Allen & Gooch, Lafayette, LA, for AKAL Security.

Appeal from the United States District Court for the Western District of Louisiana.

Before KING, BARKSDALE and ELROD, Circuit Judges.

PER CURIAM:

Appellant Don A. Kemp appeals the district court's grant of summary judgment in favor of appellees on his claims for violations of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”) arising from the termination of employment as a federal court security officer. Specifically, the district court held that Kemp failed to show a genuine issue of material fact regarding whether he has a “disability,” as that term is defined under the ADA. Finding no error, we affirm.

I.

Appellant Don A. Kemp was discharged from his position as a court security officer (“CSO”) with the United States Marshals Service (“USMS”) after failing to meet the minimum unaided hearing requirement established for CSOs. Kemp, who has worked in the military and in law enforcement for over thirty years, began wearing a hearing aid in the early 1980s and added a second aid in 1989. It is undisputed that he has no problems hearing so long as he wears his aids. In 2000, while working as a police officer, Kemp inquired about a position as a CSO with AKAL Security, Inc. (“AKAL”), a private firm that contracts with USMS to provide security at a federal courthouse in Louisiana. When he applied for the position, Kemp informed AKAL that he wore hearing aids to compensate for his hearing loss, but AKAL did not indicate that this circumstance would cause any problems. AKAL later offered Kemp a job as a CSO contingent upon his successful passage of a medical examination required by USMS for all CSOs.

Kemp began working at the courthouse in February 2001 after undergoing an initial medical examination. Shortly thereafter, USMS notified him that the results of that exam indicated that his unaided hearing did not meet the minimum standard for the CSO position. Kemp underwent further testing in April at USMS's direction, but USMS regulations prohibited him from using his hearing aids during the tests. In July 2001, USMS informed AKAL that Kemp did not meet USMS medical qualifications for minimum unaided hearing and that his credentials as a CSO would be immediately revoked on that basis. AKAL consequently terminated Kemp, but it assisted him in appealing the disqualification decision, writing a letter to USMS requesting a reconsideration of the decision to revoke Kemp's credentials and seeking confirmation that his medical condition had been individually assessed. Despite those efforts, USMS did not reinstate his credentials.

Following his termination, Kemp filed suit against the defendants alleging violations of the ADA, the RA, and Louisiana anti-discrimination law. He also claimed that he had been terminated in violation of his equal protection and due process rights. The district court granted AKAL's summary judgment motion on all claims in November 2008, and it entered summary judgment in favor of the government on all claims in March 2009. Kemp appeals the grants of summary judgment as to his ADA and RA claims only. We have jurisdiction under 28 U.S.C. § 1291.

II.

This court reviews a district court's grant of summary judgment de novo. LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 386 (5th Cir.2007). Summary judgment is appropriate when “the discovery and disclosure materials on file[ ] and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir.2009). “A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008) (citation omitted). This court must take all the facts and evidence in the light most favorable to Kemp, the non-moving party. Breaux, 562 F.3d at 364.

III.

Kemp argues that by terminating his employment due to his failure to meet USMS's established unaided hearing requirement, AKAL violated the ADA, and USMS violated the RA. Both of these statutes prohibit employment discrimination against qualified individuals with disabilities, but the statutes govern different entities: the ADA applies only to public entities, including private employers, 42 U.S.C. § 12131(1), whereas the RA prohibits discrimination in federally-funded programs and activities, 29 U.S.C. § 794(a). The RA and the ADA are judged under the same legal standards, and the same remedies are available under both Acts. See Delano-Pyle v. Victoria County, Tex., 302 F.3d 567, 574 (5th Cir.2002) (“The language in the ADA generally tracks the language set forth in the RA,” and “[j]urisprudence interpreting either section is applicable to both.”). Likewise, the relevant definition of disability set forth in the ADA is applicable to claims made under the RA. See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 n. 4 (5th Cir.1995) (noting that the ADA's definition of a disability is “substantially equivalent” to the RA's definition).

The ADA provides that no covered employer shall “discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees.” 42 U.S.C. § 12112(a). To prevail on his ADA and RA claims, Kemp must establish that (1) he is disabled within the meaning of the ADA, (2) he is qualified and able to perform the essential functions of his job, and (3) his employer fired him because of his disability. See Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir.1999). The ADA defines a disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). Major life activities include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A).

Kemp disputes the district court's holding that he failed to meet the “threshold requirement” of showing that he is disabled under the terms of the ADA. Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir.1996). We consider whether he has raised a genuine issue of material fact as to whether he is disabled as defined by the ADA by showing either that he has a physical impairment that substantially limited one or more of his major life activities or that AKAL and USMS regarded him as having such an impairment.

A.

Kemp first challenges the district court's conclusion that, because his hearing impairment is not substantially limiting when it is mitigated through Kemp's use of his electronic hearing aid, he did not raise a genuine issue of material fact regarding whether he had “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(a). In reaching this holding, the district court relied on the Supreme Court's decisions in Sutton v. United Air Lines, Inc. and Murphy v. United Parcel Service, Inc., which held that courts must take into account the benefit of any impairment-mitigating devices that the plaintiff uses in determining whether he is disabled within the meaning of the ADA. See Sutton, 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (“[I]f a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures-both positive and negative-must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity and thus ‘disabled’ under the [ADA].”) superseded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553; Murphy, 527 U.S. 516, 521, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999) (holding that the “determination of [a person's] disability is made with reference to the mitigating measures he employs.”). Kemp contends that the district court's reliance on these cases is misplaced because the ADA Amendments Act of 2008 (“ADAAA”) retroactively applies to overrule these decisions and permits ADA-defined disability to be discerned without regard to the mitigating effects of his hearing aids.

According to Kemp, the ADAAA was enacted specifically for the purpose of remedying the catch-22 created by the Sutton decision in which an employer may evaluate an employee's capabilities without regard to mitigating devices, but the use of such devices is nevertheless considered when the court determines whether that employee is “disabled” under the terms of the ADA. Kemp is correct that the ADAAA sought to supersede Sutton. The “Findings and Purposes” section of the Act explained that Congress considered “the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) and its companion cases [to] have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.” ADAAA, sec. 2(a)(4). The ADAAA went on to explicitly overrule “the requirement enunciated by the Supreme Court in Sutton ... and its...