Sakari JARVELA, Plaintiff-Appellant, v. CRETE CARRIER CORPORATION, Defendant-Appellee.
No. 13-11601
United States Court of Appeals, Eleventh Circuit.
Jan. 28, 2015.
Regardless of whether it is more accurate to characterize Morrow‘s calculations as incomplete or incorrect, we do not think Morrow‘s failings were so egregious as to constructively sever the agency relationship between Morrow and Damren, thus excusing Damren from the bearing the risk of his attorney‘s mistake. See Cadet, 742 F.3d at 481 (holding that under “well-settled principles of agency law, a petitioner bears the risk of attorney error unless his attorney has essentially abandoned him and thereby severed the principal-agent relationship” (citing Maples v. Thomas, — U.S. —, —, 132 S.Ct. 912, 922-23, 181 L.Ed.2d 807 (2012)) (quotation marks omitted); see also Holland, 560 U.S. at 657, 130 S.Ct. at 2567 (Alito, J., concurring) (“While Lawrence addressed an allegation of attorney miscalculation, its rationale fully applies to other forms of attorney negligence. Instead of miscalculating the filing deadline, for example, an attorney could fail to do the requisite research to determine the applicable deadline. In any case, however, counsel‘s error would be constructively attributable to the client.“).
As the District Court noted in analyzing Morrow‘s conduct, “[t]his is not a case where Mr. Morrow abandoned his client or lied to him ... [or] failed to communicate with his client and keep him informed of the status of his case.” Instead, the District Court found that Morrow did make some efforts to determine the limitations period by seeking advice from other attorneys; he simply failed to do enough research to arrive at the correct date.
After reviewing the record, we agree with the District Court‘s finding.6 While Morrow‘s incomplete and inadequate attempts to ascertain the deadline by which to file Damren‘s petition clearly constitute negligent conduct, they do not rise to the level of the “extraordinary circumstances” required to equitably toll
III.
We therefore AFFIRM the District Court‘s dismissal of Damren‘s
SO ORDERED.
Jeffrey A. Schwartz, Alison Lardo Loy, Jackson Lewis, PC, Atlanta, GA, for Defendant-Appellee.
Before TJOFLAT and COX, Circuit Judges.*
ON PETITION FOR REHEARING
COX, Circuit Judge:
Sakari Jarvela‘s Petition for Panel Rehearing is granted.1 The prior opinion of the panel published at 754 F.3d 1283 is vacated, and this opinion is substituted for the prior panel opinion.
The plaintiff, Sakari Jarvela, sued his former employer, Crete Carrier Corporation, and asserted various claims under the Americans with Disabilities Act and the Family and Medical Leave Act. These claims arose out of Crete‘s termination of Jarvela as a commercial motor vehicle driver. Crete terminated Jarvela because, a week before Crete terminated him, a substance abuse treatment center had discharged Jarvela with a diagnosis of alcohol dependence. The district court granted Crete summary judgment, concluding that Crete did not violate either the Americans with Disabilities Act or the Family and Medical Leave Act. We affirm.
I. PROCEDURAL HISTORY and FACTS
A. Procedural History
Sakari Jarvela, a driver of commercial motor vehicles for Crete Carrier Corporation, sued Crete, a motor carrier regulated by the Department of Transportation, in the Northern District of Georgia. Count I of Jarvela‘s complaint alleges that Crete terminated him in violation the Americans with Disabilities Act of 1990, as amended,
After the close of discovery, Crete filed a motion for summary judgment on all of Jarvela‘s claims. Jarvela responded. The district court granted Crete summary judgment on all claims. As to the ADA claim, the district court held that Jarvela could not establish a prima facie case. The district court reasoned that because he had “a current clinical diagnosis of alcoholism” within the meaning of Department of Transportation (“DOT“) regulations (specifically
B. Facts
1. Jarvela‘s Employment and Crete‘s Job Description for Commercial Motor Vehicle Drivers
According to Vice-President of Safety and Compliance Ray Coulter, Crete Carrier Corporation employed approximately five thousand commercial motor vehicle drivers. Coulter had ultimate responsibility for these drivers. Crete employed Jarvela as an over-the-road commercial motor vehicle driver in its National Fleet from November 2003 until April 2010. His base was Crete‘s Marietta, Georgia, facility, and his supervisor was Fleet Manager Bill Hough.
Crete had a written job description for the commercial motor vehicle driver position held by Jarvela. According to Jarve
2. Jarvela‘s Clinical Diagnosis and Treatment for Alcoholism
In March 2010, Jarvela reported to his personal physician, Dr. James Marshall, that he had difficulties with alcohol use. Although Dr. Marshall did not memorialize Jarvela‘s self-reported difficulties with alcohol use, he did refer Jarvela to Bradford Health Services for thirty days of intensive outpatient treatment. Asked at his deposition whether he agreed with Dr. Marshall‘s assessment as to his need for rehabilitation for his drinking, Jarvela answered, “Yes, I did.”
Jarvela requested FMLA leave for the duration of his treatment, which Crete granted. Richard Yoakum, Jarvela‘s primary counselor at Bradford Health Services, completed a Certification of Health Care Provider for Employee‘s Serious Health Condition, which Jarvela‘s attending physician at Bradford, Dr. Jerry Howell, signed. Bradford Health Services forwarded this document to Crete. At the top of the first page of this document, under Part A: Medical Facts, is an indication of “Probable duration of condition.” The handwritten answer is, “[c]hronic.”
3. Jarvela‘s Return-to-Work Medical Certification
Jarvela completed his treatment for alcoholism at Bradford Health Services on April 20, 2010. On April 22, he visited his personal physician, Dr. James Marshall, who gave him a Crete-prepared Return to Work Certification. Dr. Marshall noted on the certification that Jarvela had been discharged from Bradford and could return to work with no restrictions. Jarvela then notified Bill Hough, manager of Crete‘s Marietta facility, that he had completed his treatment, that he had been certified to return to work by his personal physician, and that he wanted to return to work. Hough told him to complete his fitness-for-duty examination through Concentra Medical Centers, Crete‘s medical examination contractor for drivers, and to report on Monday morning, April 26.
Jarvela arrived at Crete‘s Marietta facility on April 26, and then proceeded immediately to get his medical certification at Concentra, which, according to Jarvela, was “standard operating procedure.” Concentra‘s Dr. Alejandro Alam-Gonzalez (“Dr. Alam“) examined Jarvela. After the examination, Dr. Alam prepared a Medical Examination Report For Commercial Driver Fitness Determination (“Concentra Examination Report“). In Section 2 on the first page of the “Health History,” Dr. Alam checked the box beside “Regular, frequent alcohol use.” On the bottom, right-hand corner of the last page of the report, Dr. Alam wrote “See letter from Counselor regarding ETOH.” That letter, addressed to Concentra Medical Centers and dated April 26, 2010, was from Rich
4. Jarvela‘s “Current” Clinical Diagnosis of Alcoholism
Bradford Health Services discharged Jarvela on April 20, 2010, from a thirty-day intensive outpatient program for the treatment of alcoholism. Dr. Marshall, Jarvela‘s personal physician, had prescribed the treatment to Jarvela on March 17, 2010. When asked at his deposition whether Jarvela “suffers from alcoholism,” Dr. Marshall, Jarvela‘s personal physician, answered, “Yes, I would say he does.” According to Dr. Marshall, Jarvela is “in remission,” but he pointed out that “you ... always carry the diagnosis.” Dr. Alam, who cleared Jarvela to return to work after the April 26 Concentra Medical Centers medical examination, testified, “[A]n alcoholic is an alcoholic for life. That‘s not an understatement or an overstatement.” Richard Yoakum, Jarvela‘s primary counselor at Bradford Health Ser-vices, testified at his deposition that the reference to “chronic” on the FMLA certification meant, “forever.” Yoakum‘s colleague, Rachel Patterson, confirmed Yoakum‘s opinion in her explanation as to why recovering alcoholics in Alcoholics Anonymous (“AA“) introduce themselves as “alcoholic” for as long as they live.
5. Jarvela‘s Termination
Dr. Alam signed Jarvela‘s Medical Examiner‘s Certification on April 26, 2010. On its face, the certificate expired on October 26, 2010. Jarvela reported for work at the Marietta facility on the morning of April 27, when Ray Coulter, Crete‘s Vice-President of Safety and Compliance, located in Lincoln, Nebraska, terminated him in a conference call in which Fleet Manager Bill Hough also participated.
Prior to the call, Coulter had reviewed documents that had been forwarded to him, including the Concentra Examination Report prepared by Dr. Alam, and the Bradford Health Services letter attached to and referenced in it, which Jarvela‘s primary counselor, Richard Yoakum, prepared and Jarvela‘s attending physician at Bradford, Dr. Jerry Howell, signed. Coulter consulted Crete‘s legal department about his concerns that the documents he was reviewing revealed a “current diagnosis of alcoholism.” When asked whether he disagreed with medical certifications that Jarvela could return to work, Coulter testified that whether he disagreed or not with medical opinions did not matter. His responsibility was to determine whether Jarvela was qualified to drive for Crete under the written job description and the DOT regulations.
According to Jarvela, everyone identified themselves at the beginning of the conference call, then the termination discussion ensued. Coulter told Jarvela that
II. ISSUES ON APPEAL
There are three issues presented by this appeal: (1) whether the district court erred in granting Crete summary judgment on Jarvela‘s ADA termination claim; (2) whether the district court erred in granting Crete summary judgment on Jarvela‘s FMLA interference claim; and (3) whether the district court erred in granting Crete summary judgment on Jarvela‘s FMLA retaliation claim. We address these issues serially in the Discussion section.
III. STANDARDS OF REVIEW
We review de novo a district court‘s grant of summary judgment. We draw in favor of the non-movant all reasonable inferences from the evidence we consider. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). We may affirm a district court‘s summary judgment “on any ground that finds support in the record,” even if it is not the basis articulated by the district court. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) (quoting Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957)).
IV. DISCUSSION
A. ADA Claim
1. Was “No Current Clinical Diagnosis of Alcoholism” a Qualification for Jarvela‘s Job?
(a) Crete‘s Written Job Description for Commercial Motor Vehicle Drivers
The Americans with Disabilities Act forbids a “covered entity” from discharging “a qualified individual on the basis of disability.”
The dispositive factor is the second element of Jarvela‘s prima facie case: whether Jarvela was a qualified individual. Jarvela had to produce evidence sufficient to persuade a reasonable jury that at the time he was terminated he “satisfie[d] the requisite skill, experience, education and other job-related requirements of the employment position” from which Crete terminated him, and that, “with or without reasonable accommodation, [he could] perform the essential functions of the posi
Crete‘s written job description is considered evidence of the essential functions of a particular position. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000) (citing
Crete contends that a commercial motor vehicle driver‘s being qualified under the DOT regulations was an essential function of Jarvela‘s job at the time Crete terminated him. The district court agreed. Jarvela‘s inability to meet a criterion of the “physical qualification standards” regulation—in particular, the requirement that he have “no current clinical diagnosis of alcoholism“—precluded him from “performing” an essential function of his job as a motor vehicle driver. The logic of this conclusion within the context of the regulations is discussed in the following subsection.
(b) The Regulatory Framework Embraced by Crete‘s Job Description
Congress and the Equal Employment Opportunity Commission permit covered entities subject to DOT qualification standards to require that their employees comply with those standards. See
2. Existence of “A Current Clinical Diagnosis of Alcoholism”
Crete terminated Jarvela on April 27, 2010. Crete terminated Jarvela be
(a) Timing of the Diagnosis Relative to Jarvela‘s Termination
Jarvela does not and could not reasonably contend that a seven-day-old diagnosis of alcoholism was not “current” at the time of his termination. We are not prepared to draw a bright line as to how much time must pass before a diagnosis of alcoholism is no longer “current,” but we hold that a seven-day-old diagnosis is “current” under
(b) The Misconstruction of Dr. Alam‘s Testimony
Jarvela‘s brief also relies on and takes out of context Dr. Alam‘s deposition testimony in support of Jarvela‘s contention that his diagnosis was not “current.” The following exchange occurred at the beginning of a lengthy (and unsuccessful) effort by Jarvela‘s lawyer to force Dr. Alam to admit that Jarvela did not have a “current clinical diagnosis of alcoholism” when Crete terminated Jarvela:
Q. Okay. And did you determine that Mr. Jarvela—when you gave Mr. Jarvela his six-month certification that he had no current clinical diagnosis of alcoholism—
A. I determined that the [substance abuse professional] agreed that he was doing well—an alcoholic is an alcoholic for life. That‘s not an understatement or an overstatement. But that he was doing what was necessary to stay dry. Through the [substance abuse professional] I determined that to be.
Q. Okay. But the regulations, just so I‘m clear,
391.41(b)(13) states, “That a person is physically qualified to drive a motor vehicle if that person has no current clinical diagnosis of alcoholism.”6 Did you determine—A. I determined exactly that. That the [substance abuse professional] says that he‘s dry. That means currently he‘s not having a problem with alcoholism.
No reasonable jury could conclude that “I determined exactly that” referred to the
We hold that Crete Carrier Corporation did not violate the ADA by terminating Sakari Jarvela on the basis of Bradford Health Services‘s diagnosing Jarvela with alcohol dependence seven days before the termination; Crete was entitled to rely on Bradford Health Services‘s diagnosis in reaching the conclusion that Jarvela had “a current clinical diagnosis of alcoholism.”
For these reasons, the district court properly granted summary judgment to Crete on Jarvela‘s ADA claim.
B. FMLA CLAIMS
1. The Interference Claim
In order to state an interference claim under the FMLA, an employee need only demonstrate by a preponderance of the evidence that he was entitled to a benefit the employer denied. Strickland v. Water Works and Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1205 (11th Cir. 2001). An employee has the right following FMLA leave “to be restored by the employer to the position of employment held by the employee when the leave commenced” or to an equivalent position.
Jarvela contends that Crete improperly denied him the benefit of returning to the same or an equivalent position following his FMLA leave. Crete, instead, contends that it would have discharged Jarvela because he had a “current clinical diagnosis of alcoholism” regardless
2. Retaliation Claim
The FMLA prohibits an employer from discriminating against an employee for exercising a right under the FMLA.
Jarvela argues that two factors sufficiently establish a causal connection: Coulter—Crete‘s vice president who fired him—had access to his personnel file containing a notation that he was out on FMLA leave, and that his termination occurred as he attempted to return from FMLA leave. Crete argues that Coulter did not have actual knowledge that Jarvela was returning from FMLA leave.
Crete has the better position. Coulter said that he played no part in approving Jarvela‘s FMLA leave request, and that he was unaware that Jarvela had taken FMLA leave. He also testified that he only reviewed certain parts of Jarvela‘s records before terminating him, and that none of the parts he reviewed mentioned Jarvela‘s FMLA leave. Furthermore, Jarvela concedes that two of the most important documents Coulter relied on in terminating Jarvela—a letter from Jarvela‘s alcohol treatment counselor and a discharge form from Jarvela‘s treatment program—did not mention in any way the FMLA.
Jarvela had the burden of proving Crete‘s actual knowledge of his FMLA leave. He presented no evidence to rebut Coulter‘s testimony. Temporal proximity alone is insufficient to establish a causal connection in the absence of actual knowledge by the employer. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010). Accordingly, summary judgment in favor of Crete on Jarvela‘s retaliation claim was properly granted.
V. CONCLUSION
We affirm summary judgment in favor of Crete Carrier Corporation on all claims.
AFFIRMED.
Terryl J. SCHWALIER, Brig. Gen., USAF, Ret., Plaintiff-Appellant, v. Charles T. HAGEL, Secretary of Defense and Deborah Lee James, Secretary of the Air Force, Defendant-Appellees.
No. 2014-1113.
United States Court of Appeals, Federal Circuit.
Jan. 8, 2015.