Randy L. TICE, Appellant, v. CENTRE AREA TRANSPORTATION AUTHORITY; American Federation of State, County, and Municipal Employees, Council 83; American Federation of State, County, and Municipal Employees, Local 1203-b.
No. 00-1753.
United States Court of Appeals, Third Circuit.
Argued: March 8, 2001. Filed: April 23, 2001.
247 F.3d 506
Before BECKER, Chief Judge, McKEE, and STAPLETON, Circuit Judges.
Robert L. Martin, John U. Baker, (Argued), Lee, Martin, Green & Reiter, Inc., State College, PA, Counsel for Appellee Centre Area Transportation Authority.
OPINION OF THE COURT
BECKER, Chief Judge.
This is an appeal by Plaintiff Randy L. Tice from the District Court‘s grant of summary judgment in favor of Defendant Centre Area Transportation Authority of State College (CATA) in Tice‘s action for damages under the Americans with Disabilities Act of 1990(ADA),
Firstly, in deciding Tice‘s claim of discriminatory discharge, we must determine whether Tice was “disabled” within the meaning of the Act. This requires us to decide whether a plaintiff can establish that he is “regarded as” disabled by his employer solely by virtue of the employer‘s request for a medical examination. Secondly, in the disposition of Tice‘s alternative claim that he was subject to an improper medical examination, we must consider the scope of the limitations placed by the ADA on employer-mandated medical examinations and inquiries. Thirdly, Tice‘s last claim requires us to consider whether a violation of the ADA‘s provisions regarding the confidentiality of medical records constitutes a per se compensable injury.
We ultimately conclude that an employer‘s request for a medical examination, standing alone, is not sufficient to establish
I. Facts
Randy Tice has a long and checkered employment history with CATA. Therefore, because determinations under the ADA are quite fact-specific, we must recount much of the minutiae of Tice‘s odyssey through CATA‘s medical leave procedures.
Tice began his employment with CATA as a bus driver in 1988. During the relevant periods of Tice‘s employment, CATA‘s collective bargaining agreement (CBA) with the American Federation of State, County and Municipal Employees Local 1203-B (the Union) allowed employees with serious injuries or illnesses to take up to two consecutive years of unpaid leave (while continuing to accrue seniority) for any single medical condition. If the employee did not return to work after two years, the employee would be deemed to have “voluntarily resigned” under the terms of the CBA. However, if an employee were to return to work before the expiration of the two years and then leave again for the same illness or injury, the return would only interrupt the two-year time clock if that employee worked for a minimum of six weeks before going back on leave. CATA‘s policy was to require that after taking such leave, the employee only be permitted to return after submitting a “Return to Work Certificate” from a treating physician, affirming that the employee was physically fit to resume his or her duties.
In October 1993, Tice was injured at a McDonald‘s restaurant when a utility room door opened suddenly and struck him in the back. He continued to work until February 1994, when he informed CATA that back problems resulting from the injury required him to take medical leave. Tice remained on leave throughout 1994 and all of 1995, except for a few brief periods when he attempted to return to his job but quickly discovered that his back injuries would not allow him to continue. His last such attempt took place for several weeks from September to October 1994, after which time he submitted to CATA a note from Dr. Wayne Stokes stating that Tice was “to be off work until further notice and evaluation by surgeon.” Subsequently, Tice submitted periodic updates on his condition to CATA, including a letter from a surgeon, Dr. Keith Kuhlengel, recommending that Tice receive back surgery. In the exchange of correspondence, CATA reminded Tice that if he desired to return to work, he would need to submit a doctor‘s note certifying that he could perform his duties without risk.
In April 1996, Tice informed CATA that in July he would be undergoing the back surgery recommended by Dr. Kuhlengel;
CATA requested further information from Dr. Kuhlengel before allowing Tice to return and, after an initial exchange of letters, CATA informed Tice that he would be required to submit to an Independent Medical Examination (IME) before he could be reinstated. No CATA employee before (or since) had ever been required to submit to an IME after taking medical leave, and CATA had not warned Tice of such a possibility in its earlier correspondence.
Tice filed a number of grievances with the Union regarding the delay in reinstatement. At this time, Tice also complained that CATA‘s method of recordkeeping improperly commingled confidential medical information with nonconfidential personnel information, in violation of the ADA‘s recordkeeping requirements. See
Tice submitted to the IME in August 1996, and was diagnosed with “lumbar spondylolysis with degenerate disc disease.” The examining physician stated that with exercise and medication, Tice would nonetheless be able to work, and he returned to his job on August 21, 1996. He then settled his grievance with CATA regarding the IME. The seniority he had accrued while on leave entitled him to bid on driving routes with newer buses that were equipped with the seating and steering accommodations he required.
Tice worked for CATA for a month (from August 1996 to September 1996). However, on September 24, 1996, Tice was injured in an automobile accident unrelated to his employment with CATA, and submitted to CATA a note from Dr. Stokes stating that he would not be able to continue to work because he had “sustained a shoulder contusion and bursitis and reexacerbation of his back pain.”
In October 1996, Tice‘s two-year period of leave was close to expiring because his brief return did not meet the six-week minimum required under the CBA. CATA informed Tice that he would be deemed to have voluntarily resigned if he did not return by October 24, 1996. In response, on October 24, Tice submitted a note from one Dr. Worobec stating that due to a rotator cuff injury incurred in the automobile accident—ostensibly a new injury, unrelated to the back injury that had originally kept him out of work—Tice would need to refrain from working for another two weeks. A few days later, CATA informed him that it now considered him to have resigned.
Both during his medical leave from CATA, and after his termination in October 1996, Tice worked part-time cleaning and restocking for Allegheny Airlines, a job which he held until May 1997. Upon further training, he began work as an airline mechanic, continuing until February 1998, when he injured his knee falling from the cockpit of a plane, requiring that his duties be lessened. Tice eventually left this employment because of an inconvenient commute. Subsequent to his employment with CATA, Tice also ran a ticket-sales operation out of his home.
After his termination from CATA, Tice filed a grievance with the Union. The case was arbitrated in April 1997. The grievance and arbitration dealt only with Tice‘s allegations that his termination violated the CBA; no charges of ADA violations were raised or considered. Tice claimed that his absence from work after September 1996 was due to “new” injuries unrelated to his initial back injury, thus entitling him to another two years of leave. In the alternative, Tice argued that CATA‘s request for an IME in June 1996—which resulted in a two-month delay in his return to work—was improper, and that, had CATA not engaged in this impermissible action, he would have returned to his job in June, thus allowing him to meet the six-week minimum time period to stop the two-year time clock. On July 17, 1997, the arbitrator denied Tice‘s grievance, finding that the IME had been proper under the CBA, and that Tice‘s absence from September 1996 to October 1996 was due to the original back injury.
In October 1998, Tice filed suit against CATA in the District Court for the Middle District of Pennsylvania alleging that CATA had violated the ADA by: (1) discriminating against him on the basis of disability by deliberately “misclassifying” his automobile accident injuries as “new” to justify Tice‘s discharge in October 1996; (2) discriminating against him by requiring an improper medical examination as a condition of his return to work in June 1996; and (3) failing to safeguard his medical records properly.1 On May 17, 2000, the District Court granted CATA‘s motion for summary judgment, holding that Tice was not disabled within the meaning of the ADA, that CATA‘s request for an IME had not been improper under the ADA, and that Tice could not maintain his action regarding the recordkeeping because he had failed to demonstrate any injury as a result of the violations. This appeal followed. The District Court had jurisdiction pursuant to
III. Discussion
A. Improper Discharge Under the ADA
The ADA forbids employers from “discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
A “qualified individual with a disability” is “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.”
(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.
Tice argues that he is disabled within the meaning of the ADA because: (1) his back injury constitutes an impairment that “substantially limits” the “major life activity” of working; (2) he has a “record” of having such an impairment; and (3) CATA regarded him as having such an impairment. We address these arguments in turn.
1. Tice‘s Back Injury
In Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Supreme Court interpreted the phrase “substantially limits” as it is used in the Americans with Disabilities Act. A plaintiff attempting to establish disability on the basis of “substantial limitation” in the major life activity of “working” must, at minimum, allege that he or she is “unable to work in a broad class of jobs.” Id. at 491. The Court explained that “[t]o be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job choice.” Id. at 492; see also Deane v. Pocono Med. Ctr., 142 F.3d 138, 144 n. 7 (3d Cir. 1998) (en banc).
Tice has not alleged any limitation in the “major life activity” of working caused by his back injuries beyond his inability to drive a bus. In fact, he could not do so: Both before and after his termination from CATA, Tice found employment with an airline, and began operating a ticket sales business out of his home.4
2. Record of Disability
In the alternative, Tice submits that he has a “record of disability” based on his back injuries. This contention fails for the same reason that we hold Tice is not currently disabled. A plaintiff attempting to prove the existence of a “record” of disability still must demonstrate that the recorded impairment is a “disability” within the meaning of the ADA. Tice has only presented evidence that his impairment limited his ability to drive a bus—once again, because an impairment that limits only bus driving is not a “disability,” Tice has not demonstrated the existence of a record of disability.
3. “Regarded as” Disabled Due to Required Medical Examination
Tice further contends that, whether or not he is actually disabled, CATA regarded him as disabled, and thus he can seek the ADA‘s protection through the “regarded as” definition of “disability.” As proof of such regard, Tice points only to the fact that he was required to take an IME when no other employee was forced to do so, even though CATA had the opportunity to consult directly with his doctor. We will address the question whether CATA‘s IME comported with ADA requirements in Part III.B, infra; in this section, we deal with the distinct (though related) issue of whether the request for an IME demonstrates that CATA “regarded” Tice as disabled.
For an individual to be “disabled” under the “regarded as” portion of the ADA‘s definition of disability, the individual must demonstrate either that: (1) despite having no impairment at all, the employer erroneously believes that the plaintiff has an impairment that substantially limits major life activities; or (2) the plaintiff has a nonlimiting impairment that the employer mistakenly believes limits major life activities. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). In either case, the definition of “substantially limits” remains the same as it does in other parts of the statute—i.e., if the individual is attempting to establish that the employer believed the individual to be limited in the life activity of “working,” then “working” must encompass a broad class of jobs. See id. at 489-93; see also Wright v. Illinois Dep‘t of Corrections, 204 F.3d 727, 731-33 (7th Cir. 2000); Colwell v. Suffolk County Police Dep‘t, 158 F.3d 635, 647 (2d Cir. 1998).6
The EEOC regulations clarify the statute by explaining that “[a] covered entity
Indeed, even an improper IME request, without more, might not be sufficient to demonstrate that an employee was “regarded as” disabled. This is because an inquiry into how an employee was “regarded” is necessarily quite fact-specific, and all of the surrounding circumstances may be relevant in reaching a conclusion. So, for instance, if the IME is improper only for the reasons Tice has alleged—i.e., because the employer already had sufficient information from other sources to gauge the employee‘s fitness for work—such facts, standing alone, would not necessarily be determinative of how the employee was “regarded.”
At all events, this is not to say that a request for an IME, proper or improper,
Tice has not even attempted to make such a showing. On the contrary, he has explicitly argued in his briefing only that “CATA believed Tice‘s impairment precluded him from working as a bus driver.” Further, it is undisputed that CATA‘s inquiries of Tice‘s doctor, and the IME itself,
Therefore, even if CATA believed Tice to be unable to drive a bus, such a regard would still not establish that CATA regarded him as disabled. Because there has been no other evidence besides the request for an IME submitted to establish the nature of CATA‘s “regard” for Tice, we hold that Tice has not put forth sufficient evidence to create an issue of fact as to his entitlement to ADA protection. Thus, Tice has failed to make out the first element of a prima facie case of ADA discrimination, i.e., that of “disability,” and his claim that CATA deliberately misclassified his injuries in order to effect a discriminatory discharge fails.
B. The Propriety of the Independent Medical Examination
Tice‘s next ADA claim is that CATA violated the provisions of
We have held that Tice is not “disabled” within the meaning of the ADA, and it is not clear from the text of the ADA itself whether nondisabled individuals are permitted to sue for violations of
Throughout the course of his dealings with CATA, Tice complained of severe pain and difficulty walking to the point of requiring “narcotic” medication. Moreover, he had apparently experienced “spasms” that interfered with his use of his legs such that CATA had received complaints about reckless driving. There is no question that such a history raised legitimate safety concerns about Tice‘s ability to drive a bus. Tice does not even appear to dispute that CATA had cause to inquire about his medical condition. Rather, Tice submits that CATA should have been content with being permitted to question Dr. Kuhlengel instead of forcing Tice to undergo a new medical examination. Therefore, we will review the information CATA had at the time of its request for an IME.
In July 1995, during Tice‘s medical leave, Dr. Kuhlengel wrote to CATA explaining that if Tice were to receive surgery, his chances of being able to return to his job were “good to excellent,” but that if he did not receive surgery, “his prognosis for return to full duties is limited.” In April 1996, Tice informed CATA that he would be undergoing surgery in July of
Such evidence allows no serious dispute that CATA was fully justified in its decision not to rely exclusively on Dr. Kuhlengel for an assessment of Tice‘s ability to perform his job. Dr. Kuhlengel had first recommended surgery, and provided no explanation as to his change of opinion. His diagnosis rested largely on Tice‘s own evaluation of his abilities, and his Return to Work Certificate essentially (and tautologically) stated no more than that Tice would be able to perform his duties as much as Tice could perform them. We believe that, under these facts, CATA‘s unwillingness to rely on Dr. Kuhlengel‘s opinion was reasonable, and that its request for an IME was consistent with business necessity in order to ensure the safety of its passengers. See, e.g., Sullivan, 197 F.3d at 809 n. 2 (once an employee‘s ability to perform his job has been placed in doubt, an employer may require a medi-
Tice contends that CATA‘s request for an IME was not consistent with business necessity because CATA had never before or since requested an IME. Tice particularly emphasizes that on one occasion, an employee diagnosed with sleep apnea was permitted to return to work after four months’ absence with only a doctor‘s certification as to his abilities. We find this evidence insufficient to create a genuine issue of fact as to the business necessity of CATA‘s request for an IME from Tice.
The ADA‘s requirement that an IME be consistent with business necessity is an objective one. Cf. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1119 n. 6 (11th Cir. 1993) (explaining that an employer‘s subjective belief in the “necessity” of a practice with discriminatory impact is not sufficient to escape Title VII liability). That is, even a “good faith” mandatory medical examination by an employer may nevertheless give rise to liability if the court determines that the examination was unwarranted. Cf. Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 193 (3d Cir. 1999) (explaining that there is no “reasonable mistake” defense to a claim of discrimination on the basis of disability where the “mistake” is premised on a generalized misunderstanding of the effects of the plaintiff‘s disability). However, an employer‘s standard practice with regard to medical examinations is certainly relevant evidence of what is “necessary” (as suggested above, CATA did not usually require them), and, just as we routinely hold that evidence of differential treatment among similarly situated employees is probative on the issue of discrimination in Title VII suits, see, e.g., Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 353-54 (3d Cir. 1999), an employer‘s differential application of a medical examination requirement is relevant evidence of what is “necessary” to the employer‘s business.
Nonetheless, we do not believe that Tice has produced evidence sufficient to create a genuine issue of fact as to the necessity of the IME to which he was subject. If we are to compare the application of an IME requirement across employees, we must first establish that the employees are, in fact, similarly situated.10 But Tice has submitted no details regarding this other (sleepy) employee; we do not know, for instance, the exact nature of that employee‘s illness, or whether the doctor who signed his Return to Work Certificate provided more details about the employee‘s condition than did Dr. Kuhlengel about Tice‘s impairment. Tice cannot survive summary judgment on such a minimal record.
For these reasons, we conclude that the IME was job-related and fully consistent with business necessity, and will affirm the District Court‘s grant of summary judgment to CATA on the issue of CATA‘s compliance with the medical examination provisions of
C. Confidentiality of Medical Records
Tice‘s final contention is that the District Court erred in granting summary judgment to CATA regarding his claim for damages in light of CATA‘s admitted violation of those ADA provisions governing the confidentiality of medical records. See
Other courts of appeals have addressed the question whether a plaintiff has a cause of action for a violation of
Beyond the bare allegations of “mental/emotional distress, mental anguish, stress and inconvenience” set forth in his initial complaint, Tice has submitted no evidence as to the actual existence of such harms as a result of CATA‘S ADA violations. Indeed, he has not even identified a single person who improperly viewed his medical files. As the Fifth Circuit has stated in the context of preemployment examinations and inquiries, there is no indication in either the text of the ADA or in its history that a technical violation of
For the foregoing reasons, the District Court‘s grant of summary judgment to CATA will be affirmed.
David POWELL; Shelean Parks; Patrice Everage; Julia A. Davis; Yvette Bland; Geraldine Newton; Maria M. Rivera; Mary E. Miller; Gregory Luzak; Catherine Luzak; Fu Zhen Xie; Black Clergy of Philadelphia and Vicinity; Philadelphia Branch Naacp; Aspira, Inc. of Pennsylvania; Parents Union for Public Schools; Citizens Committee on Public Education in Philadelphia; Parents United for Better Schools, Inc.; David W. Hornbeck, Superintendent, the School District of Philadelphia; Floyd W. Alston, President, Board of Education of the School District of Philadelphia; Board of Education of the School District of Philadelphia; the School District of Philadelphia; Edward G. Rendell, Mayor, City of Philadelphia; City of Philadelphia, Philadelphia Federation of Teachers Local 3; Ted Kirsch, President, Guardian Ad Litem, Intervenors in D.C.
v.
Thomas J. RIDGE, Governor of the Commonwealth of Pennsylvania; James P. Gallagher, Dr., Chairperson Commonwealth of Pennsylvania State Board of Education; Eugene W. Hickok, Dr., Secretary of Education; Barbara Hafer, Treasurer; Matthew J. Ryan; Robert C. Jubelirer; Jess M. Stairs; James J. Rhoades, Intervenors in D.C., Appellants.
No. 00-1711.
United States Court of Appeals, Third Circuit.
Argued Jan. 18, 2001.
Filed April 6, 2001.