Richardson v. Chi. Transit Auth.

• Decision Date: 12 June 2019
• Docket Number: Nos. 17-3508 & 18-2199,s. 17-3508 & 18-2199
• Parties: Mark RICHARDSON, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

926 F.3d 881

Mark RICHARDSON, Plaintiff-Appellant,

v.CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.

Nos. 17-3508 & 18-2199

United States Court of Appeals, Seventh Circuit.

Argued May 14, 2019

Decided June 12, 2019

Taylor E. Muzzy, Sherrie E. Voyles, Attorneys, JACOBS, BURNS, ORLOVE & HERNANDEZ, Chicago, IL, for Plaintiff - Appellant.

Irina Y. Dmitrieva, Attorney, CHICAGO TRANSIT AUTHORITY, Law Department, Chicago, IL, for Defendant - Appellee.

Daniel B. Kohrman, Attorney, AARP FOUNDATION LITIGATION, Washington, DC, for Amici Curiae AMERICAN ASSOCIATION OF RETIRED PERSONS and AARP FOUNDATION.

Barry Charlton Taylor, Attorney, EQUIP FOR EQUALITY, INCORPORATED, Chicago, IL, for Amicus Curiae OBESITY ACTION COALITION.

Sue-Ann Rosen, Attorney, METRA, CHICAGO REGIONAL TRANSPORTATION AUTHORITY, Chicago, IL, for Amicus Curiae NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION, d/b/a METRA.

Kimberly A. Ross, Attorney, FORD HARRISON LLP, Chicago, IL, for Amicus Curiae ILLINOIS ASSOCIATION OF DEFENSE TRIAL COUNSEL.

Bryan P. Neal, Attorney, THOMPSON & KNIGHT LLP, Dallas, TX, for Amicus Curiae BNSF RAILWAY COMPANY.

Before Flaum, Kanne, and Scudder, Circuit Judges.

Flaum, Circuit Judge.

Mark Richardson, a former Chicago Transit Authority ("CTA") bus operator, alleged CTA took adverse action against him because of his extreme obesity

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. The district court disagreed. It held extreme obesity only qualifies as a disability under the ADA if it is caused by an underlying physiological disorder or condition, and granted CTA’s motion for summary judgment because Richardson offered no such evidence. Richardson appeals this holding, as well as the district court’s decision to tax costs against him. We affirm.

I. Background

Mark Richardson began working for CTA in 1993 as a temporary bus operator, and he worked as a full-time operator from August 1999 until February 2012. According to a CTA doctor, Richardson weighed 350 pounds in January 2005. And another CTA doctor indicated Richardson weighed 566 pounds in May 2009. Based on his Body Mass Index (a standardized weight-to-height ratio used to determine whether an individual is underweight, within the normal weight range, overweight, or obese) Richardson has "extreme" obesity

whenever he weighs over 315 pounds. He also suffers from hypertension and sleep apnea.

Beginning in early February 2010, Richardson was absent from work because he had the flu. He attempted to return to work on February 19, but Advanced Occupational Medicine Services ("AOMS")—CTA’s third-party medical provider—documented that Richardson had uncontrolled hypertension

and influenza, weighed over 400 pounds, and could not return to work until he controlled his blood pressure. For that reason, on April 9, CTA’s Disability Review Committee transferred Richardson to Temporary Medical Disability–Area 605 ("Area 605"). CTA administrative procedures define Area 605 as a "budgetary assignment for eligible union employees who have been found medically unfit to perform the essential functions of their job classification due to an illness or injury."

On September 13, 2010, AOMS examined Richardson’s fitness to return to work. It found Richardson "physically fit to work as a bus operator," but indicated Richardson "must be cleared by safety prior to operating [a] bus." CTA requires AOMS to report if a bus operator returning from extended leave weighs over 400 pounds because CTA bus seats are not designed to accommodate drivers weighing over 400 pounds. Weighing over this maximum does not, however, automatically disqualify employees from working as bus operators. CTA permits such employees to operate buses if the safety department finds they can safely perform their job. To make this determination, CTA administers a "special assessment," a driving performance test used to determine whether bus operators can perform all standard operating procedures on six types of CTA buses.

On September 16, 2010, Richardson completed a special assessment. CTA’s Acting Manager of Bus Instruction, Marie Stewart, assigned Bus Instructors John Durnell and Elon McElroy to administer the test. During the assessment, Durnell and McElroy joked about Richardson’s weight. Durnell testified he was just trying "to lighten up the situation," and asserted that in response, Richardson "started laughing and he started to relax." Nevertheless, McElroy reported Durnell’s comments to Stewart, and Stewart reprimanded Durnell for unprofessionalism.

Following the assessment, Durnell and McElroy each completed a report. While Durnell concluded Richardson "can drive all of CTA’s buses in a safe and trusted manner," both instructors noted several safety concerns: Richardson cross-pedaled, meaning his foot was on the gas and brake at the same time; Richardson was unable to make hand-over-hand turns; Richardson’s leg rested close to the door handle; Richardson could not see the floor of the bus from his seat; part of Richardson’s body hung off the driver’s seat; and the seat deflated when Richardson sat. Additionally, both instructors noted Richardson wore a seatbelt extender, wrote that Richardson was "sweating heavily" and needed to lean onto the bus for balance, and Durnell commented on a "hygiene problem." At his deposition, McElroy testified that as a "former heart patient," he was worried Richardson’s "sweating [could] lead to an episode."

Stewart drafted a memorandum to CTA’s Vice President of Bus Operations, Earl Swopes, concluding that "[b]ased on the Bus Instructors[’] observations and findings, the limited space in the driver’s area and the manufacturer requirements, it would be unsafe for Bus Operator Richardson to operate any CTA bus at this time." She specifically referenced the safety concerns listed above. Moreover, Stewart wrote that "[t]he maximum allowable weight per the manufacturer requirements for CTA buses is 400 pounds," and "[i]t has been represented that Operator Richardson is over that weight maximum." Because Richardson failed the assessment and could not adhere to all CTA operating procedures, Swopes determined that Richardson could not safely operate CTA buses. Swopes testified he based this decision solely on Stewart’s memorandum, without any independent investigation.

Instead of immediately terminating Richardson’s employment, CTA proposed a written agreement: CTA would transfer Richardson back to Area 605 so he could work with doctors to lose weight and be subject to periodic monitoring; in exchange, Richardson would release his ability to bring various causes of action. Richardson refused. In March 2011, CTA nonetheless transferred Richardson to Area 605; the accompanying form provides as a rationale that Richardson "exceeded the weight requirement to operate the bus." In October 2011, CTA informed Richardson that he was approaching two years of inactive status, and per CTA policy, he could extend his time in Area 605 by one year by submitting medical documentation.

Richardson did not submit documentation, and in February 2012, CTA terminated his employment.

On December 15, 2015, the Equal Employment Opportunity Commission ("EEOC") issued Richardson a right-to-sue letter, and on March 10, 2016, Richardson brought the operative complaint against CTA, alleging it violated the ADA by "refus[ing] to allow [him] to return to work because it regarded him as being too obese to work as a bus operator." On October 17, 2016, the district court denied CTA’s motion to dismiss, ruling that "[e]ven if [Richardson] is ultimately required to prove that his obesity

was caused by a physiological disorder, he is not required to allege the same." On April 20, 2017, Richardson and CTA filed cross-motions for summary judgment, and on November 13, 2017, the district court denied Richardson’s motion and granted CTA’s motion. It held, based on the language of the ADA and the pertinent EEOC regulation and interpretive guidance, that "to qualify as a protected physical impairment, claimants under the ADA must show that their severe obesity is caused by an underlying physiological disorder or condition." Because Richardson presented no such evidence, the district court entered judgment in CTA’s favor.

On December 7, 2017, CTA filed its bill of costs, seeking to recover $ 7,333.56 in deposition and copying costs as the prevailing party pursuant to Federal Rule of Civil Procedure 54(d)(1). Richardson argued costs should not be taxed because of his inability to pay, or alternatively, CTA’s costs should be reduced because transcript delivery fees are not recoverable and the transcript costs CTA sought were over the rate allowed by local rules. On May 1, 2018, the district court issued a minute order taxing $ 2,067.26 in costs. It denied copying costs because the documents were available on the electronic docket, and it reduced deposition transcript costs.

Richardson separately appealed the district court’s grant of CTA’s motion for summary judgment and decision to tax costs. We consolidated the appeals for resolution.

II. Discussion

A. The ADA and Obesity

We review cross-motions for summary judgment de novo, "construing all facts and drawing all reasonable inferences in favor of the party against whom the motion under consideration was filed." Hess v. Bd. of Trs. of S. Ill. Univ. , 839 F.3d 668, 673 (7th Cir. 2016). Here, we consider only CTA’s motion for summary judgment, so we draw all facts in favor of Richardson. Summary judgment is proper "where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Id. (citing Fed. R. Civ. P. 56(a) ).

The ADA prohibits employers from "discriminat[ing] against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). To succeed on an ADA claim, an employee must show: "(1) he is disabled; (2) h...