Tate v. Farmland Industries

• Decision Date: 10 October 2001
• Docket Number: No. 99-6329,99-6329
• Parties: (10th Cir. 2001) CHARLES R. TATE, Plaintiff-Appellant, v. FARMLAND INDUSTRIES, INC., Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 989

268 F.3d 989 (10th Cir. 2001)

CHARLES R. TATE, Plaintiff-Appellant, v. FARMLAND INDUSTRIES, INC., Defendant-Appellee.

No. 99-6329

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

October 10, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. CIV-98-1072-L)

Van H. Cline, Norman, Oklahoma, for Plaintiff-Appellant.

Marc Edwards (Sandy L. Schovanec with him on the brief), of Phillips, McFall, McCaffrey, McVay & Murrah, P.C., Oklahoma City, Oklahoma, for Defendant-Appellee.

Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Farmland Industries Inc., employed Plaintiff Charles R. Tate in 1987 to operate a commercial motor vehicle (CMV) hauling propane and other refined fuel products.¹ In 1995, Plaintiff began taking antiseizure medication to control focal seizures, episodes of jerking on the left side of his body. In 1998, Defendant terminated Plaintiff's employment as a CMV operator due to his health condition. According to Defendant, Plaintiff's use of antiseizure medication rendered him physically unqualified to operate a CMV.

Following his termination, Plaintiff filed this action against Defendant alleging violations of (1) the Americans With Disabilities Act (ADA), 42 U.S.C. 12101-12213, and (2) the Family and Medical Leave Act (FMLA), 29 U.S.C. 2601-2654. The district court granted summary judgment for Defendant on Plaintiff's ADA claim, and dismissed Plaintiff's FMLA claim for failure to state a cause of action. Plaintiff appeals. We exercise jurisdiction under 28 U.S.C. 1291. We affirm in part, reverse in part, and remand.

I.

In October 1996, a Department of Transportation (DOT) authorized medical examiner, Dr. Larry G. Stabler, evaluated Plaintiff as required by federal law and issued him a CMV operator's medical certification. During the examination, Plaintiff disclosed he had been taking the antiseizure medication Dilantin since the fall of 1995 to control focal seizures related to Lyme Disease. Dr. Stabler examined Plaintiff again in November 1997 for recertification. On the medical examination form, Plaintiff again disclosed his use of Dilantin, and, apparently for the first time, also indicated a history of "seizures, fits, convulsions or fainting." Nevertheless, Dr. Stabler certified Plaintiff as physically qualified to operate a CMV.

Upon reviewing Plaintiff's 1997 certification, Defendant's Occupational Health Coordinator (OHC) noticed that Plaintiff's examination record reported a history of seizures. The OHC sent a memo to Plaintiff's supervisor requesting additional information. In the memorandum, the OHC wrote that Plaintiff indicated a "yes" for seizures, convulsions, and for medications, lists Dilantinan anticonvulsant. Seizures have never been indicated on previous physicals. The physical done a year ago, Dilantin was listed "as precautionary measure for past history of Lyme disease." According to the PDR (drug/medication reference), Dilantin is prescribed only for seizure control.

Responding to Defendant's request for information, Plaintiff's neurologist, Dr. James E. Duncan, sent a letter to Defendant explaining that Plaintiff suffered from focal seizures. Focal seizures are episodes of jerking on the left side of the body without loss of consciousness. Dr. Duncan confirmed that Plaintiff was taking Dilantin, but indicated Plaintiff experienced warning symptoms prior to the onset of a seizure. Dr. Duncan also indicated Plaintiff had not suffered a focal seizure in the past two years.

On or about January 2, 1998, Defendant placed Plaintiff on sick leave while determining whether his history of seizures and use of antiseizure medication would permit him to continue working as a CMV operator. Effective January 30, 1998, while Plaintiff remained on sick leave, Defendant officially terminated Plaintiff's employment. According to Defendant, Plaintiff was not physically qualified to operate a CMV because Plaintiff's use of antiseizure medication necessarily prohibited him from meeting the physical requirements for CMV operators.

II.

Subchapter III of the Commercial Motor Vehicle Safety Act, entitled "Safety Regulation," 49 U.S.C. 31131-31148, authorizes the Secretary of Transportation to prescribe "minimum safety standards" to ensure "the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely." Id. 31136(a)(3). To that end, Department of Transportation (DOT) regulations dictate that "[a] person shall not drive a commercial motor vehicle unless he is physically qualified to do so . . . ." 49 C.F.R. 391.41(a). Among other things, a person is physically qualified to drive a CMV if that person "[h]as no established medical history or clinical diagnosis of . . . any . . . condition which is likely to cause loss of consciousness or any loss of ability to control a commercial motor vehicle." Id. 391.41(b)(8). DOT's interpretation of its own regulations strongly suggests that a driver who is taking antiseizure medication for any reason is not qualified to drive a CMV. Department of Transportation's Federal Highway Administration, Federal Motor Carrier Safety Regulations 391.41(b)(8), at 411 (Mgmt. ed. 1998) (Medical Advisory Criteria for Evaluation Under 49 C.F.R. Part 391.41) (hereinafter "Medical Advisory Criteria").

III.

The ADA provides in relevant part that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees, . . . and other terms, conditions, and privileges of employment." 42 U.S.C. 12112(a). To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate "'(1) that [he] is disabled within the meaning of the ADA; (2) that [he] is qualifiedwith or without reasonable accommodation; and (3) that [he] was discriminated against because of [his] disability.'" McKenzie v. Dovala, 242 F.3d 967, 969 (10th Cir. 2001) (quoting Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir. 1998)). The ADA defines the term "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. 12102(2).

In granting summary judgment for Defendant on Plaintiff's ADA claim,² the district court focused on the question of whether Plaintiff was disabled within the meaning of the ADA. The court concluded Plaintiff was not disabled because he failed to establish he was "substantially limited" in the "major life activity" of working. Furthermore, the district court concluded Defendant did not "regard" Plaintiff as disabled, but instead perceived him only as unable to obtain CMV certification under DOT's Medical Advisory Criteria. We need not decide, however, whether Defendant was disabled as required under the first prong of the ADA's prima facie case. Rather, we conclude as a matter of law that Plaintiff cannot satisfy the second prong of the prima facie case because he could not meet Defendant's physical requirements for CMV operators, and thus was not qualified to operate a CMV.³ See Mathews v. The Denver Post, 263 F.3d 1164, 1166-67, (10th Cir. 2001) (declining to consider whether plaintiff was disabled under the ADA where he was not qualified for the desired position).

A.

The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. 12111(8).⁴ As a condition to performing the essential functions of an employment position, however, an individual must first satisfy "the requisite skill, experience, education and other job-related requirements of the employment position." 29 C.F.R. 1630.2(m). If a plaintiff fails to establish that he has met either step of this analysis, he is not a "qualified individual" within the meaning of 12111(8). See Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001) (explaining that the question of whether someone is a "qualified individual with a disability" involves a two-step inquiry); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir. 2000) (same); Weber v. Strippit, Inc., 186 F.3d 907, 916 (8th Cir. 1999) (same); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 n.14 (5th Cir. 1997) (same).

The question of whether a job requirement is a necessary requisite to employment initially focuses on whether an employer actually requires all employees in the particular position to satisfy the alleged job-related requirement. Cf. Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995) (holding under the ADA that an essential function of a job must be actually required of all employees in the particular position). This inquiry is not intended to second guess the employer or to require the employer to lower company standards. Id.; see also H. Rep. No. 101-485(II), at 55 (1990), reprinted in 1990 U.S.S.C.A.N. 303, 337 (The ADA "does not undermine an employer's ability to choose and maintain qualified workers."). Provided that any necessary job specification is job-related, uniformly-enforced, and consistent with business necessity, the employer has the right to establish what a job is and what is required to perform it.

The foregoing is consistent with the ADA's legislative history, which speaks directly to an employer's application of DOT's physical standards to CMV operators:

With respect to covered entities subject to rules promulgated by the Department of Transportation regarding physical qualifications for drivers of certain classifications of motor vehicles, it is the Committee's intent that a person with a disability applying for or currently holding a job subject to these standards must be...