754 F.3d 901

11th Cir.

2014

John WETHERBEE, Plaintiff-Appellant, v. The SOUTHERN COMPANY, Defendant, Southern Nuclear Operating Company, Inc., Defendant-Appellee.

No. 13-10305.

United States Court of Appeals, Eleventh Circuit.

June 11, 2014.

754 F.3d 901

evidence was one factor that a district court could consider in exercising its post-Booker discretion to depart from the guidelines); Dell v. United States, 710 F.3d 1267, 1279 (11th Cir.2013) (noting that the Supreme Court‘s opinion in Kimbrough “empowered” the district courts with discretion to impose a variance based on a policy disagreement with the sentencing guidelines’ crack/powder cocaine disparity but did not “command” them to exercise that discretion), cert. denied, ___ U.S. ___, 134 S.Ct. 1508, 188 L.Ed.2d 387 (U.S.2014).

Contrary to Cubero‘s arguments, the 2013 report does not heighten the district court‘s statutory duty to state the reasons for imposing a particular sentence. See 18 U.S.C. § 3553(c). And, the 2013 report does not alter the U.S. Supreme Court‘s or this Circuit‘s precedent regarding the district court‘s obligations under 18 U.S.C. § 3553(c); namely, that a district court‘s decision to apply the guidelines to a particular case does “not necessarily require lengthy explanation.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007); United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir.2010) (“A sentencing court is not required to incant the specific language used in the guidelines or articulate its consideration of each individual § 3553(a) factor, so long as the record reflects the court‘s consideration of many of those factors.” (quotation marks omitted)); United States v. Flores, 572 F.3d 1254, 1271 (11th Cir.2009) (“The district court explicitly stated that it considered the § 3553(a) factors and did not need to individually discuss each of these factors.“); United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.2008) (“In consideration of the § 3553(a) factors, the district court does not need to discuss or state each factor explicitly. . . . An acknowledgment the district court has considered the defendant‘s arguments and the § 3553(a) factors will suffice.“).

Here, the district court properly calculated the § 2G2.2-based guidelines range, treated the range as advisory, recognized that it had discretion to vary, considered the statutory sentencing factors as applied to Cubero, imposed a guidelines sentence supported by the § 3553(a) factors, and adequately explained the sentence imposed. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The district court‘s approach was procedurally reasonable, and the sentencing procedure produced a substantively reasonable sentence. Accord United States v. Grigsby, 749 F.3d 908, 911 (10th Cir.2014) (noting that the Commission‘s 2013 report does not “stand for the proposition that any application of § 2G2.2 will yield an unreasonable sentence“).

VI. CONCLUSION

For the forgoing reasons, Cubero‘s sentences and term of supervised release are affirmed.

AFFIRMED.

Jack Rosenberg, Jack Rosenberg, Attorney-Mediator Labor & Employment Discrimination Law, Unemployment Appeals, Atlanta, GA, Julie M. Weiner, Law Office of Julie M. Weiner, Marietta, GA, for Plaintiff-Appellant.

Ashley Z. Hager, Gary Knopf, Troutman Sanders, LLP, Atlanta, GA, for Defendant-Appellee.

Before WILSON, Circuit Judge, and BUCKLEW^* and LAZZARA,^** District Judges.

WILSON, Circuit Judge:

John Wetherbee appeals the district court‘s grant of Southern Nuclear Operating Company‘s (Southern Nuclear) motion for summary judgment as to his claim of discrimination based on the misuse of information obtained during a required medical evaluation, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d)(3)(C). We previously affirmed in part the district court‘s grant of summary judgment to Southern Nuclear as to Wetherbee‘s disability discrimination claim under § 12112(a) of the ADA, but remanded the case in part to allow the district court to enter an order addressing Wetherbee‘s claim under § 12112(d)(3)(C). Wetherbee v. Southern Co., 423 Fed.Appx. 933, 934 (11th Cir.2011) (per curiam). After review of the parties’ briefs, the record on appeal, and with the benefit of oral argument, we affirm.

Wetherbee applied for a systems engineer position with Southern Nuclear at one of its nuclear power plants. Southern Nuclear extended Wetherbee a job offer contingent on satisfactory completion of a medical evaluation. During Wetherbee‘s evaluation, he informed Southern Nuclear that he suffered from bipolar disorder. His medical records indicated that he took medication to manage the disorder, had not experienced any bipolar episodes in six or seven years, and his previous bipolar episodes had only occurred when doctors attempted to take him off of his medication. However, Wetherbee had recently attempted to alter his medication regimen and, in spite of his healthcare provider‘s recommendation, was not being treated by a psychiatrist. Southern Nuclear‘s medical team determined that Wetherbee could only be hired if several conditions were met, including compliance with his medication regimen and a restriction from working on “safety-sensitive systems and equipment” for one year while Southern Nuclear verified his compliance with his medication regimen. Because the systems engineer position required that Wetherbee work on safety-sensitive systems and equipment, Southern Nuclear determined that it could not hire Wetherbee and rescinded his conditional job offer.

On remand, the district court found that the restriction which led Southern Nuclear to rescind Wetherbee‘s job offer was job-related and consistent with business necessity and that, based on this restriction, Wetherbee could not perform the job with reasonable accommodations. Accordingly, the district court held that Southern Nuclear was entitled to the ADA‘s business necessity affirmative defense, see Allmond v. Akal Sec. Inc., 558 F.3d 1312, 1316-17 (11th Cir.2009) (per curiam), and granted summary judgment in its favor. On appeal, Wetherbee argues, among other things, that the district court erred in finding that the business necessity affirmative defense applied because the relevant restriction was not consistent with business necessity and there were other reasonable accommodations that could have allowed Wetherbee to perform the job of a systems engineer. The only issue we need to address in this appeal, however, is whether a claim brought under 42 U.S.C. § 12112(d)(3)(C) requires a plaintiff to prove he is disabled. This court has not addressed whether § 12112(d)(3)(C) requires such a showing.

Southern Nuclear asks us to follow the Seventh and Tenth Circuits and hold that under § 12112(d)(3)(C), Wetherbee must prove that he is disabled in order to show that the restrictions imposed upon him violated the ADA. See O‘Neal v. City of New Albany, 293 F.3d 998, 1010 n. 2 (7th Cir.2002) (“If the applicant is not disabled, . . . then the applicant cannot recover under § 12112(d)(3)(C).“); Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955, 960 n. 4 (10th Cir.2002) (“[T]o recover under subsection 12112(d)(3)(C) a plaintiff must show the employer used collected medical information to discriminate on the basis of a disability.“). Southern Nuclear also points us to 29 C.F.R. § 1630.14, which applies directly to § 12112(d)(3)(C) and states, “if certain criteria are used to screen out an employee or employees with disabilities . . . the exclusionary criteria must be job-related and consistent with business necessity.” (Emphasis added.) Accordingly, Southern Nuclear argues that in the absence of a disability, there is no discrimination, and Wetherbee‘s § 12112(d)(3)(C) claim fails.

Wetherbee asks us to hold the exact opposite. Wetherbee says we should hold that § 12112(d)(3)(C) does not require him to prove that he was disabled in order to show that Southern Nuclear violated the ADA. He notes that we have already held that disability status is not an element of §§ 12112(d)(2) and (d)(4)(A) claims. See Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1213 (11th Cir.2010); Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1310 (11th Cir.), cert. denied, ___ U.S. ___, 134 S.Ct. 655, 187 L.Ed.2d 449 (2013). Accordingly, Wetherbee argues that we should extend the holdings of those cases and hold that disability status is not an element of § 12112(d)(3)(C).

We disagree and instead join the Seventh and Tenth Circuits in holding that an individual seeking relief under § 12112(d)(3)(C) must demonstrate that he is a qualified individual with a disability. Contrary to Wetherbee‘s argument, our holdings in Harrison and Owusu-Ansah—that disability status is not an element of §§ 12112(d)(2) and (d)(4)(A) claims—should not be extended to § 12112(d)(3)(C) claims. Section 12112(d)(2) prohibits employers from conducting “a medical examination or mak[ing] inquiries of a job applicant as to whether such applicant is an individual with a disability.” (Emphasis added). Section 12112(d)(4) offers current employees the same protection. By the plain language of these provisions, a violation occurs when any applicant or employee is subject to an exam.¹ Accordingly, it simply would not make sense to require, as an element of those claims, a showing that an individual is disabled, because these subsections protect all applicants and all employees at certain stages from being subject to a test to determine whether or not they are disabled in the first place. See §§ 12112(d)(2) and (d)(4)(A).

A violation under § 12112(d)(3)(C), on the other hand, occurs when information is used in violation of some other provision of the ADA. Specifically, § 12112(d)(3) permits medical exams as a condition of employment, so long as “the results of such examination[s] are used in accordance with this subchapter.” 42 U.S.C. § 12112(d)(3)(C) (emphasis added). It differs from the sections discussed above because there, the violations are completed when a test is simply administered or confidentiality is violated.

To be successful under § 12112(d)(3)(C), however, Wetherbee needs to show not just that the information was gathered but that the information was not “used in accordance with this subchapter.” Id. Wetherbee never suggests which provision of the ADA was violated by Southern Nuclear‘s use of the results of his exam, other than § 12112(a), which prohibits discrimination “on the basis of disability.” Thus, whether or not the results of an exam under (d)(3)(C) were used in accordance with the applicable subchapter turns on whether there was discrimination on the basis of disability, and discrimination on the basis of disability cannot occur unless the claimant is disabled. Therefore, Wetherbee could not prevail under § 12112(d)(3)(C) without showing that he is a disabled individual.

Wetherbee, however, admitted at oral argument that he cannot demonstrate that he is an individual with a disability. While the district court did not specifically address this statutory interpretation issue, “we may affirm its judgment on any ground that finds support in the record.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir.2001) (internal quotation marks omitted). Accordingly, the district court is affirmed.

AFFIRMED.

Notes

Likewise, under § 12112(d)(3)(B), an offeree may have a claim if his information is not kept confidential. 42 U.S.C. § 12112(d)(3)(B).

Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida, sitting by designation.

Honorable Richard A. Lazzara, United States District Judge for the Middle District of Florida, sitting by designation.

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