MARK RICHARDSON, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
Nos. 17-3508 & 18-2199
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 14, 2019 — DECIDED JUNE 12, 2019
Before FLAUM, KANNE, and SCUDDER, Circuit Judges.
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16-cv-03027 — John Robert Blakey, Judge.
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
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
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.
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
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
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability.”
1. Actual Impairment
Congress has not defined “impairment.” In a regulation implementing the ADA, however, the EEOC defined “physical impairment” as: “Any 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.”
Richardson and CTA disagree about whether his extreme obesity—even without evidence of an underlying physiological condition—meets the definition of physical impairment and is thus an actionable disability for ADA purposes. This is an issue of first impression for this Circuit. However, three of our sister circuits have considered the question; each has held, based on the language of
*35 (S.D. Tex. Feb. 3, 2017); EEOC v. Res. for Human Dev., Inc., 827 F. Supp. 2d 688, 693–95 (E.D. La. 2011); Lowe v. Am. Eurocopter, LLC, No. 10-cv-24, 2010 WL 5232523, at *7–8 (N.D. Miss. Dec. 16, 2010).3 We join the Second,
In his arguments to the contrary, Richardson focuses first on the ADAAA. Congress passed these amendments in 2008 to ensure that the ADA‘s “definition of disability … be construed in favor of broad coverage.”
Specifically, Congress sought to broaden the scope of the “being regarded as having such an impairment” definition of disability. Id. § 2(b)(3); see Miller v. Ill. Dep‘t of Transp., 643 F.3d 190, 196 (7th Cir. 2011) (“[T]he ‘regarded as’ prong is an important protection that should not be nullified by creating an impossibly high standard of proof, as Congress indicated even more strongly in the 2008 amendments.“). It rejected the Supreme Court‘s decision in Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999), which held that to be regarded as disabled, an employee‘s disability must substantially limit a major life activity. See id. at 490 (“An employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity.“). Therefore, Congress amended the ADA to make clear an individual can be “regarded as” having an impairment “whether or not the impairment limits or is perceived to limit a major life activity,”
Additionally, Congress relaxed court-imposed rules as to how severe an impairment must be to be considered a disability. It sought to abrogate the Supreme Court‘s decisions in Sutton and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), because the Court‘s definition of “substantially limits a major life activity” in those cases “created an inappropriately high level of limitation necessary to obtain coverage under the ADA” by requiring that employees have an impairment that “severely restrict[ed]” a major life activity. ADAAA § 2(b)(2)–(5), 122 Stat. at 3554.4 It found that
EEOC regulations “defining the term ‘substantially limits’ as ‘significantly restricted’ [were] inconsistent with congressional intent[] by expressing too high a standard,” and expressed its “expectation” that the EEOC would revise its regulations. Id. § 2(a)(8), (b)(6). The EEOC adhered to this directive. See
Richardson contends that after the ADAAA, courts must broadly construe impairment to encompass extreme obesity, even without evidence of an underlying physiological condition. Cf. EEOC v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018) (“impairment” should be interpreted “broadly” after the ADAAA). We disagree. While Congress criticized the Supreme Court‘s understanding of “substantially limits a major life activity” at length, it said nothing about judicial interpretation of impairment. See Morriss, 817 F.3d at 1111. Likewise, while Congress instructed the EEOC to alter its definitions of “substantially limits” and “major life activity,” it made no such instruction with respect to the EEOC‘s definition of impairment. See id. Indeed, the ADAAA‘s legislative history explicitly states that Congress “expect[ed] that the currently regulatory definition of [physical or mental impairment], as promulgated by agencies such as the [EEOC] … [would] not change.” Statement of the Managers to Accompany S. 3406, The Americans with Disabilities Act Amendments Act of 2008, 154 Cong. Rec. S8342-01, S8345 (Sept. 11, 2008). The EEOC therefore did not modify its regulation defining im-pairment, and even after the ADAAA, the definition of physical impairment remains inextricably tied to a “physiological disorder or condition.”
Next, Richardson insists that we must interpret the EEOC‘s definition of physical impairment in light of EEOC interpretive guidance. That guidance, which interprets both the ADA and the EEOC regulation, states:
It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within “normal” range and are not the result of a physiological disorder.
According to Richardson, this EEOC guidance specifies that “impairment does not include the physical characteristic of weight if both of the following elements are present: (1) the weight [is] within the normal range; and (2) the weight is not the result of a physiological disorder.” The Montana Supreme Court adopted this interpretation. Feit, 281 P.3d at 229. So did at least three district courts. See Velez, 2019 WL 2423145, at *4; Velez, 2018 WL 6446169, at *4; Res. for Human Dev., 827 F. Supp. 2d at 694. Removing the negatives, Richardson posits that “[i]mpairment does include the physical characteristic of weight if either of the following elements
Like the Eighth Circuit, we do not find this reading of the interpretive guidance persuasive. Rather, “a more natural reading of the interpretive guidance is that an individual‘s weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder.” Morriss, 817 F.3d at 1108. As the Eighth Circuit reasoned, “reading … the EEOC interpretive guidance in its entirety supports this conclusion” because, for example, “the interpretive guidance also provides that ‘[o]ther conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.‘” Id. at 1108–09 (alteration in original) (quoting
Moreover, Richardson‘s preferred interpretation is overbroad. If we were to read the EEOC interpretive guidance in the way he suggests, even an employee with normal weight could claim a weight-based physical impairment if his weight was the result of a physiological disorder. Likewise, any employee whose weight—or other physical characteristic—is even slightly outside the “normal range” would have a physical impairment even with no underlying physiological cause. Such results are inconsistent with the ADA‘s text and purpose and must be rejected. Otherwise, “the ‘regarded as’ prong … would become a catch-all cause of action for discrimination based on appearance, size, and any number of other things far removed from the reasons the [ADA] [was] passed.” Watkins, 463 F.3d at 443 (quoting Francis, 129 F.3d at 287).
In any event, even if this interpretive guidance means what Richardson says it means, we do not defer to EEOC guidance that is contrary to the text of the regulation it purports to interpret. See Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (“Deference is undoubtedly inappropriate … when the agency‘s interpretation is ‘plainly erroneous or inconsistent with the regulation.‘” (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997))). The EEOC defines physical impairment as a “physiological disorder or condition.”
physical impairment within the definition of the ADA. This argument is not persuasive. The ADA is an antidiscrimination—not a public health—statute, and Congress‘s desires as it relates to the ADA do not necessarily align with those of the medical community. Moreover, amici‘s argument proves too much; if we agreed that obesity is itself a physiological disorder, then all obesity would be an ADA impairment. While Richardson does not ask us to hold that all obese individuals—found to be as high as 39.8% of the American adult population8—automatically have an ADA impairment, adopting amici‘s position leads to this unavoidable, nonrealistic result.
At bottom, Richardson does not present any evidence suggesting an underlying physiological disorder or condition caused his extreme obesity.9 Without such evidence, we cannot call Richardson‘s extreme obesity a physical impairment
within the meaning of the ADA and the EEOC regulation. See Morriss, 817 F.3d at 1112; Watkins, 463 F.3d at 443.10
Alternatively, Richardson argues that even if we hold extreme obesity is not itself an impairment, he is still disabled under the ADA because CTA perceived his obesity to be a physical impairment. See
that the plaintiff suffered from an ‘impairment’ that, if it truly existed, would be covered under the [ADA] ….“). In other words, Richardson must present sufficient evidence to permit a reasonable jury to infer that CTA perceived his extreme obesity was caused by an underlying physiological disorder or condition.
Richardson did not make this showing. To be sure, Richardson introduced evidence that CTA took adverse action against him based on his excessive weight. For example, CTA transferred Richardson to Area 605 because he exceeded the weight specifications for CTA buses. Additionally, CTA required Richardson to take a special assessment because he weighed over 400 pounds, not because of any violation of CTA standard operating procedures. And in Stewart‘s memorandum to Swopes summarizing the results of the special assessment, she highlighted safety concerns directly related to Richardson‘s weight: he could not perform hand-over-hand turning, he cross-pedaled, he had difficulty getting in and out of the driver‘s seat, his body hung off the seat, his leg was close to the door handle, and he exceeded the 400-pound maximum per CTA bus manufacturer requirements. But there is no evidence Stewart, Swopes, or anyone else at CTA believed Richardson‘s excessive weight was caused by a physiological disorder or condition. To the contrary, the evidence suggests CTA perceived Richardson‘s weight as a physical characteristic that made it unsafe for him to drive. These facts do not permit a finding that CTA regarded Richardson as disabled for purposes of ADA liability. See Francis, 129 F.3d at 287 (no liability where plaintiff “alleges only that [defendant] regarded him as disabled because it disciplined him for failing to meet a weight standard applied to all of its employees,” and not “because it perceived him as suffering from a physiological weight-related disorder“).
Richardson cites to the First Circuit‘s opinion in Cook v. State of Rhode Island, Department of Mental Health, Retardation, & Hospitals, 10 F.3d 17 (1st Cir. 1993), and suggests that the court held a jury could find an employer perceived an employee‘s extreme obesity as a physical impairment merely because the employer “stated concerns about the plaintiff‘s ability to perform her job duties.” Richardson reads Cook too broadly. In Cook, the court affirmed a jury verdict in favor of the plaintiff under the identical “perceived disability” provision of the Rehabilitation Act. Id. at 23. The court explained that a jury could have found the defendant treated the plaintiff “as if she had a physical impairment” because the evidence “show[ed] conclusively that [the defendant] treated plaintiff‘s obesity as if it actually affected her musculoskeletal and cardiovascular systems.” Id. Critically, the court emphasized that the plaintiff presented “expert testimony that morbid obesity is a physiological disorder.” Id. Here, by contrast, Richardson presented no such evidence. The district court thus properly held that CTA could not have perceived Richardson as having a physical impairment within the ADA‘s definition.
B. Costs
“Unless a federal statute, [the Federal Rules of Civil Procedure], or a court order provides otherwise, costs—other than attorney‘s fees—should be allowed to the prevailing party.”
We have held that “it is ‘within the discretion of the district court to consider a plaintiff‘s indigency‘” when taxing costs against him. Rivera v. City of Chicago, 469 F.3d 631, 634 (7th Cir. 2006) (quoting Badillo v. Cent. Steel & Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983)). To deny costs based on indigency, the court must first “make a threshold factual finding that the losing party is ‘incapable of paying the court-imposed costs at this time or in the future.‘” Id. at 635 (quoting McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994)). “The burden is on the losing party to provide the district court with sufficient documentation to support such a finding.” Id. (internal quotation marks and citation omitted).
Richardson argues the district court abused its discretion because it “completely failed to consider or address [his] arguments and the evidence he submitted demonstrating his inability to pay the costs awarded at this time or in the future.” We disagree. To be sure, “district judges [must] provide at least a modicum of explanation when entering an award of costs.” Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 454 (7th Cir. 1998). Here however, the court provided an explanation. It made clear that CTA was entitled to costs as the prevailing party, and it provided an accounting of how it calculated costs at $2,067.26 (significantly less than CTA‘s initial $7,333.56 request). True, the district court did not mention Richardson‘s claim that he was indigent, but the indigence exception “is a narrow one” and “is not a blanket excuse for paying costs.” Rivera, 469 F.3d at 635–36. While we have held that a district court abuses its discretion when it denies costs without explanation on the basis of indigence, see id. at 636–37, Richardson does not cite any case holding a district court abuses its discretion when it grants costs, with an explanation, but does not explicitly consider the plaintiff‘s indigence. It was thus not unreasonable for the district court to tax $2,067.26 in costs.
For the foregoing reasons, we AFFIRM the judgment of the district court.