Charles R. TATE, Plaintiff-Appellant, v. FARMLAND INDUSTRIES, INC., Defendant-Appellee.
No. 99-6329.
United States Court of Appeals, Tenth Circuit.
Oct. 10, 2001.
268 F.3d 989
Because the Appellant failed to establish substantial nexus between his injuries and the use of an insured vehicle, the оrder of the district court is AFFIRMED.
Marc Edwards (Sandy L. Schovanec with him on the brief), of Phillips, McFall, McCaffrey, McVay & Murrah, P.C., Oklahoma City, OK, 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),
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 indicаted 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 Dilantin—an 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 referenсe), 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,”
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.”
In granting summаry 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.”
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. Reр. No. 101-485(II), at 55 (1990), reprinted in 1990 U.S.C.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 able to satisfy any physical qualification standard that is job related and consistent with business necessity in order to be considered a qualified individual with a disability ....
H. Rep. No. 101-485(II), at 57, reprinted in 1990 U.S.C.C.A.N. at 339 (emphasis added). Indeed, DOT regulations mandate that an employer “not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle.”
B.
DOT regulations state that a person is physically qualified to drive a CMV if that person has no clinical diagnosis of a condition likely to cause “loss of ability to control” a CMV.
Admittedly, DOT‘s Medical Advisory Criteria are prefaced with a note indicating they are only advisory and nonbinding.6 Nеvertheless, the views of an agency such as DOT implementing a regulatory scheme designed to ensure the safety of our nation‘s highways “‘constitute a body of experience and informed judgment‘” to which employers may properly resort for guidance. United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 2171, 150 L.Ed.2d 292 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). We hesitate to second guess a legitimate business judgment on the part of DOT and its covered employers as to the necessary qualifications of CMV operators. As then Chief Judge, now Justice Breyer opined: “We doubt that ... the Department [of Transportation] could not adopt reasonable rules concerning the relationship between certain handicaps ... and certain activities
like driving.” Ward v. Skinner, 943 F.2d 157, 161-164 (1st Cir.1991) (Breyer, C.J.) (upholding DOT‘s refusal to prоvide a truck driver taking antiseizure medication “an individualized inquiry that would permit him to escape the application of a general agency rule” embodied in a task force recommendation). We have little difficulty concluding that Defendant may rely on a reasonable interpretation of DOT‘s Medical Advisory Criteria, which undoubtedly are job-related and consistent with Defendant‘s safety and liability concerns, to establish physical requirements for its CMV operators, provided Defendant does so consistently and uniformly.7 Subject to DOT‘s minimum standards, Defendant as the employer has the prerogative of determining what is physically required of its CMV operators. See
C.
In this case, Defendant‘s independent review of Plaintiff‘s status led to the conclusion that Plaintiff was not physically qualified to operate a CMV under established safety standards. Plaintiff argues however, that Defendant cannot override his medical examiner‘s certification. While we are not unsympathetic to Plaintiff‘s circumstance, we disagree. Due to legitimate safety and liability concerns, Defendant maintains a policy of requiring CMV operators to qualify to operate CMVs in compliance with DOT‘s physical requirements—including those requirements set forth in § 391.41(b)(8) of the Medical Advisory Criteria.8 See Chandler v. City of Dallas, 2 F.3d 1385, 1395 (5th Cir.1993) (“Woe unto the employer who put ... an [unqualified] employee behind the wheel of a vehicle owned by the employer which was involved in a vehicular accident.“).
Although Defendant acknowledged during discovery that Plaintiff could perform the essential functions of a CMV operator while taking the prescribed dosage of Dilantin, the fact that Plaintiff must take Dilantin to control focal seizures necessarily renders Plaintiff unable to meet a job-related requirement of the employment position, a requirement established by Defendant under DOT‘s standards. See Ward, 943 F.2d at 161-64 (noting the risk of seizure to an epileptic taking antiseizure medication “is low only if the individual actually takes his medicine; he may forget“). Because Plaintiff cannot meet the necessary job-related physical requirements to perform as a CMV operator in Defendant‘s employ, he is not a “qualified
IV.
Plaintiff also challenges the district court‘s dismissal of his FMLA claim involving the period of time immediately following his termination. Plaintiff argues Defendant terminated him without first providing him “sick leave” to which he was entitled under the FMLA. The FMLA provides in relevant part:
an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
...
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
A.
In his first amended complaint, Plaintiff alleged “[d]efendant knew that at all times relevant, up to and including the termination of his employment, plaintiff was taking the medication Dilantin prescribed by his treating neurologist.” Plaintiff further alleged:
Defendant regarded plaintiff to be unfit to perform his job because of a serious health condition. Defendant had placed plaintiff on sick leave, and he was on sick leave when defendant fired him. At the time of said firing, plaintiff still had accrued sick leave remaining. Nonetheless, defendant did not provide plaintiff with notice of his rights under the FMLA and did not provide him leave as required by the FMLA.
See Plant v. Morton Int‘l, Inc., 212 F.3d 929, 934-36 (6th Cir.2000) (employee not precluded from asserting an FMLA claim where he would have been unable to return to work within a twelve-week period following his termination).
In dismissing Plaintiff‘s FMLA claim, the district court concluded that Plaintiff failed to allege the necessary elements to maintain an action under the FMLA.9 To be an “eligible employee” under
Plaintiff alleged generally that from March 1996 until his termination in January 1998, Defendant employed him as a truck driver. We infer from this allegation that Plaintiff satisfied the time requirement under
B.
The district court also reasoned that Plaintiff failed to allege he requested FMLA benefits from Defendant. The district court concluded such an allegation was necessary to maintain an action under the FMLA because “[i]t is axiomatic that defendant cannot have denied bеnefits that were never sought.” The FMLA, however, does not require a covered employee to specifically ask for FMLA benefits. An employee need not expressly assert rights under the FMLA or even mention the FMLA. See
C.
Despite the foregoing, Defendant argues that Plaintiff did not have a serious health condition as required under
While we express no opinion on the ultimate outcome of Plaintiff‘s FMLA claim, we cannot conclude under these circumstances that Plaintiff failed to allege sufficient facts in his first amended complaint to state such a claim. Accordingly, the district court erred in dismissing Plaintiff‘s FMLA claim under
AFFIRMED in part, REVERSED in part, and REMANDED.
BRISCOE, Circuit Judge, dissenting:
I respectfully dissent. First, I would conclude Tate was qualified because Farmland conceded that issue in a request for admission. Second, I would concludе there was a genuine issue of material fact as to whether Tate was regarded as disabled by Farmland. Third, Tate cannot state a claim under the FMLA because his only argument on appeal is that he had a nonlimiting medical condition that was perceived as limiting.
As stated by the majority, 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 qualified—with 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)). See Majority Op. at 992. Tate contends he was disabled as defined by the ADA because Farmland regarded him as having a physical impairment that limited one or more of his major life activities. See
I.
The majority concludes that Tate was not a “qualified individual” as defined by the ADA. Whether a person is “qualified” under the ADA is a two-step analysis:
First, we must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions.
Milton v. Scrivner, Inc., 53 F.3d 1118, 1123 (10th Cir.1995) (emphasis added). In response to Tate‘s first set of requests for admission, Farmland admitted “that at the time [Tate‘s] employmеnt was terminated by [Farmland], [Tate] was physically and mentally able to perform the essential functions of his job with [Farmland].” Aplt.App. at 233 (emphasis added). This admission tracks the language in Milton. Although Tate argued before the district court that this admission was binding, Farmland did not formally address the issue. It only discussed the merits of whether Tate was a qualified individual. Similarly, the district court ruled on the merits. On appeal, notwithstanding this admission, Farmland argues that one of the “essential functions” of Tate‘s job was meeting the heightened “physical” standards set forth by the DOT regulations. See Aple. Br. at 10.
Once a party makes an admission, the fact is “conclusively established.” See
II.
There are two ways a plaintiff can show he or she was “regarded as” having a disability. First, he or she can show “a covered entity mistakenly believes that the person has a physical impairment that substantially limits one or more major life activities.” Doyal v. Okla. Heart, Inc., 213 F.3d 492, 499 (10th Cir.2000) (internal quotations omitted). Second, he or she can show “a covered entity mistakenly believes that the person‘s actual nonlimiting impairment substantially limits one or more major life activities.” Id.
Tate invokes the latter. Although before the district court he only contended he “was regarded by [Farmland] to have a physical impairment that substantially limited one or more of his major life activities,” Aplt.App. at 207, on appeal he tailors his contention to better conform with case authority by contending “Farmland mistakenly believed Tate‘s nonlimiting medical condition substantially limited one or more of his major life activities.” Aplt. Br. at 28. For Tate to recover under this theory, “it is necessary that [the employer] entertain misperceptions about the individual—it must believe ... that [the individual] has a substantially limiting impairment when, in fact, the impairment is not so limiting.” Doyal, 213 F.3d at 499.
To prevail on his claim that there was a genuine issue of material fact as to whether he was regarded as disabled, Tate must identify the “nonlimiting medical condition” hе was perceived as having, and the “major life activity” it was perceived to substantially limit. On appeal, Tate alleges three major life activities were implicated—working, driving, and maintaining consciousness. We should not consider “maintaining consciousness” because Tate did not assert this claim before the district court. We need not determine whether “driving” is in itself a major life activity because working is clearly a major life activity under the ADA. See Davoll v. Webb, 194 F.3d 1116, 1134 n. 11 (10th Cir.1999). Since Tate has identified one recognized major life activity, I next address whether he had a nonlimiting medical condition that was perceived as substantially limiting his ability to work.
Was Tate‘s taking of Dilantin the medical condition that was nonlimiting, but perceived by Farmland as limiting? Farmlаnd first had information that Tate was taking Dilantin in November 1996 when it received the 1996 certificate provided by Tate‘s medical examiner. In response to the instruction to “[l]ist all drugs or medications taken regularly,” the following is written: “Dilantin 400qd—as precautionary measure for past history of Lymes Disease.” Aplt.App. at 115. Farmland, however, took no action at that time. Tate‘s file was flagged and a memorandum was sent by the occupational health coordinator to two safety managers because of a discrepancy between the 1996 and 1997
The evidence suggests that Farmland was not concerned exclusively with Tate‘s intake of Dilantin. Rather, Farmland was concerned that Tate suffered from a “medical condition” and that Dilantin was taken to combat the seizures resulting from that medical condition. Tate argued before the district court and argues on appeal that he was fired “because of [Farmland‘s] misperceptions of his medication and medical condition.” Aplt.App. at 207; Aplt. Br. at 5. On appeal, he continues his focus on both the medication and his medical condition.
The district court granted summary judgment to Farmland because (1) Farmland “viewed [Tate] as not being certifiable” rather than being disabled, and (2) Farmland did not view him as disqualified from a class of jobs or a broad range of jobs. Aplt.App. at 754. However, whether Tate was certifiable “goes only to whether [he] is qualified and whether [Farmland] has a defense based on the DOT regulations.” Murphy, 527 U.S. at 522-23. Accordingly, the district court‘s emphasis on qualifications when discussing disability was error.
Rather, the district court‘s focus should have been on whether the plaintiff showed that the employer believed he had “a substantially limiting impairment when, in fact, the impairment is not so limiting.” Doyal, 213 F.3d at 499 (quotation omitted). “[T]he EEOC defines ‘substantially limits’ as: ‘significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.‘” Murphy, 527 U.S. at 523 (quoting
Viewing the facts in the light most favorable to Tate, there is a genuine issue of material fact as to whether he was perceived as significantly restricted from performing a broad range of jobs. Jack Curry, Farmland‘s manager of hazardous materials and safety, stated that Farmland owned several non-commercial motor vehicle trucks and that he believed it would have been unsafe for Tate to drive one of those trucks. Aplt.App. at 310-11. This evidence indicates Farmland perceived Tate as restricted from performing a broad range of jobs.
III.
The majority concludes that Farmland was on notice that Tate might qualify for FMLA benefits when Farmland placed him on involuntary leave for health reasons. The majority reverses the distriсt court‘s dismissal of Tate‘s FMLA claim and remands for further consideration. The FMLA entitles an “eligible employee” “to a total of 12 workweeks of leave during any 12-month period” when the employee has “a serious health condition that makes
I agree with the majority that Tate‘s failure to allege he was an eligible employee should not result in dismissal with prejudice of his claim. The second step in determining whether Tate can invoke the FMLA is evaluating whether hе had a “serious health condition,” as defined by the statute, that made him unable to perform the functions of his position. For purposes of the Act, the term “serious health condition” means:
an illness, injury, impairment, or physical or mental condition that involves—
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.
On appeal, Tate proceeds under the thеory that Farmland regarded him as disabled; specifically, that he had a nonlimiting condition that Farmland perceived as limiting. Aplt. Br. at 55. There is no provision of the FMLA that would allow him to recover because he was only “regarded as” having a serious medical condition that made him unable to perform his job when he actually did not.
I would reverse the district court‘s grant of summary judgment on the ADA claim and affirm the district court on the FMLA claim.
Notes
§ 391.41(b)(8)—A person is physically qualified to drive a commercial motor vehicle if that person:
Has no established medical history or clinical diagnosis of epilepsy;
or
Any other condition which is likely to cause the loss of consciousness; or any loss of ability to control a commercial motor vehicle. [emphasis in original].
Epilepsy is a chronic functional disease characterized by seizures or episodes that occur without warning, resulting in loss of voluntary control which may lead to loss of consciousness and/or seizures. Therefore, the following drivers cannot bе qualified:
- a driver who has a medical history of epilepsy; or
- a driver who has a current clinical diagnosis of epilepsy; or
- a driver who is taking antiseizure medication.
If an individual has had a nonepileptic seizure or an episode of loss of consciousness of unknown cause which did not require antiseizure medication, the decision as to whether that person‘s condition may result in the loss of consciousness or loss of ability to control a motor vehicle is made on an individual basis by the medical examiner in consultation with the treating physician....
In those individual cases where a driver had a nonepileptic seizure or an episode of loss of consciousness that resulted from a known medical condition (e.g., drug reaction, high temperature, acute infectious disease, dehydration, or acute metabolic disturbance), certification should be deferred until the driver has fully recovered from that condition, has no existing residual complications, and is not taking antiseizure medication. [emphasis added].
Unlike regulations which are codified and have a statutory base, the recommendations in this advisory are simply guidance established to help the medical examiner determine a driver‘s medical qualifications pursuant to § 391.41 of the Federal Motor Carrier Safety Regulations (FMSCRs).... The medical examiner may, but is not required to, accept the recommendations. Section 390.3(d) of the FMSCRs allows employеrs to have more stringent medical requirements.
Medical Advisory Criteria at 407.