Morriss v. BNSF Ry. Co.

• Decision Date: 05 April 2016
• Docket Number: No. 14–3858.,14–3858.
• Citation: 817 F.3d 1104
• Parties: Melvin A. MORRISS, III, Plaintiff–Appellant v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant–Appellee. Equal Employment Opportunity Commission, Amicus on Behalf of Appellant(s) Chamber of Commerce of the United States, Amicus on Behalf of Appellee(s) AARP, Amicus on Behalf of Appellant(s) Equal Employment Advisory Council; National Federation of Independent Business Small Business Legal Center, Amici on Behalf of Appellee(s).
• Court: U.S. Court of Appeals — Eighth Circuit

817 F.3d 1104

Melvin A. MORRISS, III, Plaintiff–Appellant

v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant–Appellee.Equal Employment Opportunity Commission, Amicus on Behalf of Appellant(s)Chamber of Commerce of the United States, Amicus on Behalf of Appellee(s)AARP, Amicus on Behalf of Appellant(s)Equal Employment Advisory Council; National Federation of Independent Business Small Business Legal Center, Amici on Behalf of Appellee(s).

No. 14–3858.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 17, 2015.

Filed: April 5, 2016.

Ari David Riekes and Jennifer L. Turco Meyer, argued, Omaha, NE, for Plaintiff–Appellant.

Bryan P. Neal, argued Dallas, TX (Nichole S. Bogen, on the briefs, Lincoln, NE), for Defendant–Appellee.

Ann W. King, argued, Washington, DC, for amicus EEOC.

Daniel B. Kohrman, Dara S. Smith, Washington, DC, for amicus AARP.

Rae T. Vann, Karen R. Harned, Kathryn L. Comerford Todd, Warren Postman, Elizabeth Milito, Washington, DC, for amici Chamber of Commerce of the United States; Equal Employment Advisory Council; National Federation of Independent Business–Small Business Legal Center.

Before WOLLMAN, BRIGHT, and LOKEN, Circuit Judges.

WOLLMAN

, Circuit Judge.

Melvin Morriss appeals from the district court's¹ order granting BNSF Railway Company's (BNSF) motion for summary judgment and denying his motion for partial summary judgment on his claims that BNSF refused to hire him on account of his obesity

and thereby discriminated against him in violation of the Americans with Disabilities Act of 1990 (ADA),

42 U.S.C. §§ 12101

–12213, as amended by the ADA Amendments Act of 2008 (ADAAA), Pub.L. No. 110–325, 122 Stat. 3553, and the Nebraska Fair Employment Practice Act (NFEPA), Neb.Rev.Stat. §§ 48–1101 to–1126.² We affirm.

Morriss applied for a machinist position with BNSF in March 2011 and was extended a conditional offer of employment. Because the position was safety sensitive, however, the offer of employment was contingent on a satisfactory medical review. Morriss completed BNSF's medical questionnaire, reporting that he was 5'10? tall and weighed 270 pounds, that he had once been diagnosed as "pre-diabetic" but was not currently diabetic, that he had taken appetite-suppressant medication to lose weight but not to address any health concerns, that he considered his overall health "good," and that he experienced no difficulties or limitations in his daily activities. In response to BNSF's request for additional information concerning Morriss's possible history of diabetes

, Morriss's doctor submitted treatment records for the first three months of 2011, which did not reflect a current diagnosis of diabetes or any symptoms of diabetes.

In May 2011, BNSF doctors conducted two physical examinations of Morriss: at one, Morriss weighed 285 pounds and had a body mass index (BMI) of 40.9; at the other, he weighed 281 pounds and had a BMI of 40.4. BNSF's policy was not to hire a new applicant for a safety-sensitive position if his BMI equaled or exceeded 40. Because Morriss's BMI exceeded BNSF's qualification standards, the company's medical department notified Morriss by email that he was "[n]ot currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity

( [BMI] of 40 or greater)." BNSF then revoked its conditional offer of employment.

Morriss filed this suit in January 2013, alleging that BNSF discriminated against him when it revoked its offer of employment based on his obesity

. He claimed that his obesity was an actual disability under the ADA and that BNSF regarded his obesity as an actual disability. BNSF filed a motion for summary judgment, arguing that Morriss's obesity did not meet the definition of disability under the ADA because it was not a "physical impairment" and that BNSF did not regard his obesity as a disability. Morriss moved for partial summary judgment only on his claim that BNSF regarded his obesity as a disability.

The district court found that Morriss had failed to provide any evidence to support his claim that his obesity

was an actual disability under the ADA. The court first noted that to succeed on this claim, Morriss was required to show that his obesity was a physical impairment, defined under the ADA as a physiological disorder or condition that affects a major body system. The court noted that Morriss had unequivocally denied suffering from any medical impairment or condition on BNSF's medical questionnaire, had described his health as "good," and had disclosed no difficulties or limitations in his daily activities. Morriss had instead stated that he did not believe he had a physical disability, that he was not aware of any underlying condition that contributed to his obesity or to his inability to lose weight, and that his weight caused no physical limitations. Morriss's personal doctor, who also testified as Morriss's expert witness, stated that Morriss did not suffer from any medical condition that caused his obesity

or any medical condition associated with obesity, such as diabetes, hypertension, cardiac disease, or sleep apnea ; that Morriss had no limitations placed on his activities; and that Morriss was capable of performing the duties of the machinist position. Morriss also admitted that BNSF had received no information to contradict any of the responses he and his doctor had provided regarding his health and medical history. Based on this evidence, the district court found that Morriss's claim that his obesity was an actual disability necessarily failed because he did not prove that it was a physical impairment, i.e., a physiological disorder or condition that affected one or more major body systems.

The court also granted BNSF summary judgment on Morriss's claim that the company regarded him as having a disability. The court noted that although BNSF admittedly acted on its internal policy that an applicant with Class III obesity

and a BMI that equaled or exceeded 40 posed an unreasonably high risk of developing certain medical conditions in the future, the definition of physical impairment—and thus disability—under the ADA did "not include characteristic predisposition to illness or disease." Order of D. Ct. of Nov. 20, 2014, at 5–6. Because BNSF acted only on its assessment of Morriss's predisposition to develop an illness or disease in the future, it did not regard him as having a disability under the ADA. The district court therefore granted BNSF's motion for summary judgment, denied Morriss's motion for partial summary judgment, and dismissed the action with prejudice. On appeal, Morriss argues that his obesity, even without evidence of an underlying physiological disorder or condition, is a physical impairment—and thus a disability—under the ADA and that BNSF regarded it as such. The question on appeal, therefore, is whether obesity qualifies as a disability under the ADA.

We review a grant of summary judgment de novo, EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 969 (8th Cir.2014)

, and affirm if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," id. (quoting Fed.R.Civ.P. 56(a) ). While the nonmoving party receives the benefit of all reasonable inferences that may be drawn from the evidence, he must come forward with specific facts to show that there is a genuine issue for trial. See Walz v. Ameriprise Fin., Inc., 779 F.3d 842, 844 (8th Cir.2015). "A complete failure by the non-moving party ‘to make a showing sufficient to establish the existence of an element essential to that party's case ... necessarily renders all other facts immaterial.’ " Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).

The ADA makes it unlawful for a covered employer to discriminate against any "qualified individual on the basis of disability." 42 U.S.C. § 12112(a)

. To succeed on a disability-discrimination claim under the ADA, a claimant must show that he was a "qualified individual" who suffered "discrimination" that was based on a "disability" as each of those terms is defined by the Act. See Brown v. City of Jacksonville, 711 F.3d 883, 888 (8th Cir.2013). This appeal turns on the meaning of term "disability," which the ADA defines as "(A) a physical ... impairment that substantially limits one or more major life activities ... (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1)(A)–(C). Morriss challenges only the district court's adverse grant of summary judgment on his claim that BNSF regarded him as having a physical impairment. An individual is "regarded as having such an impairment" if he establishes that he was discriminated against "because of an actual or perceived physical ... impairment whether or not the impairment limits or is perceived to limit a major life activity." Id. § 12102(3)(A)

. Thus to prevail on his "regarded as" claim, Morriss was required to show that his obesity was an actual or perceived physical impairment.

The ADA does not define physical impairment, but the EEOC, exercising its statutory authority to issue regulations implementing the ADA, see id. § 12205a, has defined the term to mean "[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine," 29 C.F.R. § 1630.2(h)(1)

(emphasis added). Under the plain language of this definition, obesity is not a physical impairment unless it is a physiological disorder or condition and it affects a major body system.

Morriss contends that this definition of physical impairment cannot be read in isolation and must be considered in light of EEOC interpretive guidance, which refers to...