LaChance v. Duffy's Draft House, Inc.

Decision Date14 July 1998
Docket NumberNo. 96-5237,96-5237
Citation146 F.3d 832
Parties, 8 A.D. Cases 652, 13 NDLR P 73, 11 Fla. L. Weekly Fed. C 1591 Mathew P. LaCHANCE, Plaintiff-Appellant, v. DUFFY'S DRAFT HOUSE, INC., Duffy's of Jupiter, Inc., Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Isidro M. Garcia, Mark F. Carbonell, West Palm Beach, FL, for Plaintiff-Appellant.

Michael B. Davis, Paxton, Crow, Bragg, Smith & Keyser, West Palm Beach, FL, R. Earl Welbaum, Welbaum, Guernsey, Hinston, Greenleaf & Gregory, L.L.P., Coral Gables, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Circuit Judge, and CLARK and WELLFORD *, Senior Circuit Judges.

CLARK, Senior Circuit Judge:

Matthew LaChance has epilepsy, and brought a claim against his former employer, Duffy's Draft House, Inc. ("Duffy's") alleging that it fired him in violation of the Americans with Disabilities Act ("ADA"). The district court found that LaChance was not a "qualified individual" within the meaning of the ADA, and granted summary judgment to the employer. LaChance filed his notice of appeal, and, subsequently, Duffy's moved for attorney's fees and costs. The district court awarded Duffy's attorney's fees and costs, but LaChance did not file a notice of appeal from the award or amend his notice of appeal. LaChance appeals the district court's grant of summary judgment and the award of attorney's fees and costs. We affirm the district court's grant of summary judgment, and hold that we have no jurisdiction over the order awarding attorney's fees and costs.

BACKGROUND

LaChance had a long history of complex partial seizures with secondary generalization, and had not been free of seizures for more than two weeks since he began having the seizures around age seven or eight. When he had a seizure, he did not lose consciousness, but would become dazed and LaChance applied for a job as a line cook with Duffy's and began that job in March, 1993. In his deposition, LaChance's supervisor stated that on LaChance's first night of work, he had two seizures: during the first he walked into a wall, and later walked into the dining room where customers were present. The supervisor also stated that on the second night LaChance worked, he had another seizure, during which he went into the bar and sat on a stool for about ten minutes. Because LaChance's medication was being changed he was having seizures more frequently than usual, and in June, 1993, the supervisor suggested that LaChance take two weeks off of work to stabilize on his new medication. LaChance agreed, and there is some dispute about whether LaChance called back after the two weeks, but viewing the facts in his favor, when he finally did reach the supervisor, he was told that because of his epilepsy he was a "liability" to the business and was discharged. LaChance brought suit alleging that Duffy's failed to make a reasonable accommodation for him and fired him in violation of the ADA.

disoriented for anywhere from a few seconds to minutes. He generally would have poor recollection of what happened during the seizure, and although sometimes he could continue functioning, at other times he would wander off seemingly in a daze. His doctor stated that people with these types of seizures are restricted from driving until they have been on medication and free of seizures for six months, and from operating heavy or dangerous machinery if the seizures are not under control.

Duffy's filed a motion for summary judgment, alleging that LaChance failed to prove that he was a "qualified individual" because he could not perform the job safely, and attached depositions of LaChance, LaChance's supervisor from Duffy's, and LaChance's doctor. In the depositions, LaChance's supervisor stated that line cooks were required to cook on a gas flat top grill, use a fryolater filled with hot grease, and use slicing machines. LaChance's doctor stated that a person with the kind of seizures LaChance experienced should be restricted from working with flat top grills, hot ovens, fryers with boiling grease, and slicing machines. LaChance stated that he posed a risk to himself and to others while working around those appliances because of his seizures. He also stated that a reasonable accommodation would have been to keep him away from those appliances, and have him perform other duties which did not involve use of those appliances, such as prep work, but that prep work took two to three hours per shift and that line cooks at Duffy's did not do prep work.

LaChance responded to the motion for summary judgment with affidavits stating that he had worked as a cook in other restaurants without harming himself or others for some months before he was hired at Duffy's, and for 13 months after his discharge. The district court found that LaChance was not a qualified individual because he could not perform the essential functions of the job without threat of harm to himself or others. The district court held that once an employer reasonably identified an employee as posing a risk of harm, the ADA did not require the employer to accept that risk, and that it was an entirely untenable proposition that LaChance's employer or co-employees should have to bear the personal risk and legal liability that could have resulted from any accident due to the seizures. The district court found that LaChance had not requested any accommodation from Duffy's, and that Duffy's could not have accommodated LaChance in any way such that he could have still performed the essential functions of a line cook.

LaChance filed his notice of appeal from the entry of judgment in a timely fashion. Subsequently, Duffy's filed a motion for costs and attorney's fees, and, after a hearing, the district court awarded Duffy's costs and attorney's fees. LaChance did not amend his notice of appeal or file a new notice of appeal from the order awarding costs and attorney's fees.

DISCUSSION
I. Summary Judgment

We review the grant or denial of summary judgment de novo, applying the same standard that the district court employed. 1 To defeat a motion for summary judgment, the nonmoving party may not rely on "mere allegations." 2 It must raise "significant probative evidence" that would be sufficient for a jury to find for that party. 3 Summary judgment may be granted if the evidence is "merely colorable." 4

The Americans with Disabilities Act of 1990, as amended by 42 U.S.C. § 12101 et seq., prohibits covered employers from discriminating against an employee based upon known physical or mental impairments, provided that the employee is a qualified individual with a disability. 5 In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) he has a disability; (2) he is a qualified individual; and (3) he was unlawfully subjected to discrimination because of his disability. 6 A qualified individual with a disability must satisfy "the requisite skill, experience, education and other job-related requirements of the employment position," and "with or without reasonable accommodation," the individual must be able to perform the "essential functions of the position." 7 The ADA requires employers to provide reasonable accommodations for known disabilities unless that accommodation would result in undue hardship for the employer. 8 An "accommodation" is "reasonable"--and, therefore, required under the ADA--only if it enables the employee to perform the essential functions of the job. 9 The ADA defines "essential functions" to be the fundamental job duties of the employment position, as differentiated from "marginal" functions. 10 The employee must actually perform the function the employer asserts is essential. 11

Duffy's admits that it fired LaChance because of his epilepsy, and LaChance admits that if he had continued working at Duffy's, he would have had seizures on the job which would have posed a risk of harm to himself and others because of the appliances involved in the duties of a line cook. The issue is whether LaChance produced evidence from which a reasonable jury could conclude that he was not a direct threat.

LaChance failed to produce probative evidence that he was not a direct threat. His argument that he has performed the job safely at other places is unavailing. The evidence indicates that his employment before Duffy's consisted mainly of prep work and there is no evidence that any of those jobs involved using the kind of appliances he was required to work with at Duffy's. The affidavit from his supervisor at a job after Duffy's, indicating that he had worked around the same appliances without incident for 13 months, does not overcome his own admission and his doctor's statement that he posed a risk of harm. Such evidence does not create an issue of fact. We hold that one employer's willingness to bear the risk of harm does not constitute evidence rendering other employers liable under the ADA for their refusal to bear that same risk.

LaChance argues that Duffy's failed to make an individual assessment of his disability, and incorrectly cites to Mantolete v. Bolger 12 as standing for the proposition that employers have a duty to gather substantial information in assessing whether a particular employee poses a substantial risk of harm. In Mantolete, the plaintiff brought suit under Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791, which required the federal government as employer to give "full consideration to the hiring, placement, and advancement of qualified mentally and physically handicapped persons." 13 That statute is not at issue in this case, and LaChance cites to no comparable provision in the ADA imposing such a duty on private employers. 14 The evidence shows that Duffy's considered LaChance's disability individually, rather than stereotypically, but after allowing him to work for several...

To continue reading

Request your trial
297 cases
  • Bowden ex rel. Bowden v. Wal-Mart Stores, Inc.
    • United States
    • U.S. District Court — Middle District of Alabama
    • November 29, 2000
    ...nicely, the opinions, allegations, and conclusory statements of counsel do not substitute for evidence. See LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir.1998); Pelletier v. Zweifel, 921 F.2d 1465, 1507 (11th Cir.1991). It is not for the court to manufacture arguments o......
  • McGuire v. Marshall
    • United States
    • U.S. District Court — Middle District of Alabama
    • January 7, 2021
    ...Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988) ; LaChance v. Duffy's Draft House, Inc. , 146 F.3d 832, 837 (11th Cir. 1998).(c) Appeals pursuant to 28 U.S.C. § 1292(a) : Under this section, appeals are permitted from the following typ......
  • Thomas v. Auto-Owners Ins. Co., CASE NO. 1:16-cv-00542-RAH-JTA
    • United States
    • U.S. District Court — Middle District of Alabama
    • August 17, 2020
    ...Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988) ; LaChance v. Duffy's Draft House, Inc. , 146 F.3d 832, 837 (11th Cir. 1998).(c) Appeals pursuant to 28 U.S.C. § 1292(a) : Under this section, appeals are permitted from the following typ......
  • Alabama v. U.S. Dep't of Commerce
    • United States
    • U.S. District Court — Middle District of Alabama
    • June 29, 2021
    ...Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988) ; LaChance v. Duffy's Draft House, Inc. , 146 F.3d 832, 837 (11th Cir. 1998).(c) Appeals pursuant to 28 U.S.C. § 1292(a) : Under this section, appeals are permitted from the following typ......
  • Request a trial to view additional results
5 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT