Chicago Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, a voluntary association et al v. Thorne Associates, Inc.
Filing
39
MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 9/25/2012: Mailed notice(etv, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHICAGO REGIONAL COUNCIL OF
CARPENTERS, UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF
AMERICA, a voluntary association, and
RODOLFO ROSAS, Sr.,
Plaintiffs,
v.
THORNE ASSOCIATES, INC.,
Defendant.
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No. 11 C 4782
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Defendant Thorne Associates, Inc. (“Thorne”) refused to employ Rodolfo Rosas, Sr.
(“Rosas”) as a drywall carpenter after Rosas failed a “fitness for hire” (“FFH”) test that required him
to lift 50- and 100-pound boxes to certain heights. (Compl. [1] ¶¶ 17, 52, 55.) Rosas and his
union, the Chicago Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners
of America (“Union”), seek redress under the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq. Rosas and the Union claim that (1) Thorne used the FFH test and a
pre-employment medical examination to screen out individuals with disabilities rather than for
job-related reasons; (2) the pre-employment medical examination violated the ADA; and (3) Thorne
discriminated against Rosas on the basis of disability.
(Compl. ¶¶ 60-62, 67-68, 72, 77;
Supplement in Opp. to Def.’s Mot. to Dismiss (hereinafter “Pls.’ Supp.”) [27] at 4.) Thorne moverd
to dismiss the case pursuant to Federal Rule of Civil Procedure Rule 12(b)(1) and 12(b)(6). (Mem.
in Support of Thorne’s Mot. to Dismiss (hereinafter “Def.’s Mem.”) [15] at 1-2.)
This court holds that (1) Plaintiffs lack standing to challenge Thorne’s medical examination;
(2) the FFH test is not a medical examination as defined by the ADA; (3) Plaintiffs have adequately
pleaded that the FFH test is not consistent with business necessity; and (4) Plaintiffs have pleaded
that Rosas is disabled within the meaning of the ADA. Thorne’s 12(b)(6) motion to dismiss is
granted as to Count II, but denied as to Counts I and III.
PROCEDURAL HISTORY
The issue before the court is the sufficiency of Plaintiffs’ complaint, but both parties have
referred to information gathered in an arbitration proceeding between the Union and Thorne that
took place on July 15, 2010. At the court’s request, Defendant has furnished a copy of the
arbitration transcript and the arbitrator’s opinion. The issues before the arbitrator were (1) whether
a Union grievance based on Thorne’s refusal to hire Rosas was substantively arbitrable;
(2) whether Thorne violated its collective bargaining agreement when it refused to hire Rosas; and
(3) whether the medical examination and FFH test used by Thorne violated the ADA. (Rodolfo
Rosas Grievance Opinion and Award (hereinafter “Arb. Award”) at 1-2, 5, 9.) The arbitrator
determined that the Union grievance was substantively arbitrable and that Thorne did not violate
the collective bargaining agreement when it refused to hire Rosas. (Arb. Award at 1, 10.) He also
concluded that the FFH test was within the “inherent management right” of Thorne and does not
violate the law.1 (Arb. Award at 9 n.11, 10.) At this stage, the court considers information in the
arbitration record only to the extent that, in their complaint and memoranda, Plaintiffs rely on the
evidence presented there or otherwise demonstrate that they accept that evidence as true.
FACTUAL BACKGROUND
Thorne is a construction company that performs interior work, including the installation of
sheets of drywall that weigh more than 100 pounds. (Def.’s Mem. at 2.) Some time before July
of 2009, Thorne contracted with Concentra Medical Center (“Concentra”) to develop and administer
a fitness-for-hire (“FFH”) test, which it then required all carpenter applicants to take and pass.
1
The arbitration transcript and arbitrator’s opinion were not filed in the court’s docket,
but he court will direct the Clerk to place those documents in the record. Thorne does not argue
that the arbitrator’s determination binds this court.
2
(Compl. ¶¶ 17, 27, 30.) According to Defendant, the FFH test was designed to simulate work tasks
required on Thorne carpentry jobs.2 (Def.’s Mem. at 3.) The test was administered by a physical
therapist
and
therapy
director
employed
by
Concerta,
Steven
Van
Klompenburg
(Compl. ¶¶ 31-32), to 83 potential employees, including Rosas, between July of 2009 and July of
2010. (Pls.’ Supp. at 11.) All but two of the 83 applicants passed the FFH test and were hired by
Thorne. (Id.)
In June of 2010, Rosas “had approximately 29 years of experience working as a
journeyman carpenter,” including work between 1995 and 2008 done “directly for Thorne . . . as
a journeyman carpenter.” (Compl. ¶ 48.) On June 24, 2010, Rosas applied to Thorne for a job
installing drywall in the elevator shafts of Lurie Children’s Hospital. (Compl. ¶ 43.) Thorne asked
Rosas to take a medical examination3 and FFH test administered by Concentra. (Def.’s Mem.
at 3.)
Rosas passed the medical examination but failed the FFH test. (Def.’s Mem. at 3.) The
FFH test required Rosas to, among other tasks, “lift and carry a 50-pound box between 16 inches
and 72 inches vertically . . . [and] lift and carry a 100-pound box to a height between 6 inches and
2
In its memorandum, Thorne describes its work as “specialty interior contractor work,
including drywall, lath, plaster, acoustical, glass reinforced gypsum, rough and finish carpentry and
demolition.” (Def.’s Mem. at 2.) The company hires carpenters “who work with heavy building
materials” and requires new carpenters to demonstrate “the ability to perform several skills that are
essential job functions for the position” through the FFH test. (Def.’s Mem. at 2-3.)
Plaintiffs agree that the FFH test was designed to test an applicant’s range of motion and
muscle strength. (Compl. ¶ 16.) Plaintiffs nonetheless argue that the requirements of the test do
not measure the ability to perform the essential functions of the job at issue for Plaintiff
Rosas–creating a shaft wall around elevators–because requiring an individual to carry or lift the
weights tested in the FFH test is contrary to union safety practices and “[a]ctivities that the UNION
discourages its members from undertaking cannot be essential functions of a UNION carpenter
job.” (Compl. ¶¶ 19, 22-24.)
3
According to Plaintiffs, the medical test included a detailed medical history, vision
test, blood pressure reading, pulse reading, visual field examination, hearing test, heart monitoring,
reflex testing, sensory examinations, urinalysis, history of medication use, family history of heart
disease and diabetes, prior instances of hospitalization, and questions about whether time off work
was taken due to injury or illness. (Compl. ¶¶ 38-40.)
3
56 inches vertically.” (Compl. ¶ 17.) At the arbitration proceeding, Rosas testified that he was
asked to “put the 100 pounds on top of one shelf, 6 feet.” (Arb. Tr. 55:4-12.) Rosas, who is 5'3",
recalled, “when I saw that, I told the guy, it’s not going to happen; I am too short. . . . I lift the thing
. . . and [Van Klompenburg] told me to put it down.” (Arb. Tr. 55:13-15.) After that, Rosas testified,
“[t]hen the guy brings the shelf all the way to 4 foot and a half. So he told me to lift it again. So I
lifted 100 pounds and easy . . . [a]nd he told me, you’re doing fine.” (Arb. Tr. 55:15-19.)
Van Klompenburg, who administered the test, determined that Rosas’s “body mechanics were
compromised” when lifting the 50-pound and 100-pound boxes. (Arb. Tr. 78:2-6; Compl. ¶ 51-52.)
Rosas passed the other parts of the FFH test. He was able, for example, to “[c]limb a ladder
twenty times in under five minutes,” “[l]ift and extend at chest height a 30-pound weight twenty
times in five minutes,” and push a cart weighing 100 pounds 100 feet in five minutes.
(Compl. ¶ 17, 53.) Because Rosas failed the FFH test, Thorne did not hire him for the Lurie
Hospital job. (Compl. ¶¶ 54-55.) Plaintiffs argue that “[t]he only thing that changed” between
Rosas’s former satisfactory employment at Thorne and his application for the Lurie Hospital job
was that Defendant “began requiring a test in which a man 5’3” tall is required to lift a 100 lb. weight
over his head.” (Pls.’ Resp. To Def.’s Mot. to Dismiss (hereinafter “Pls.’ Resp.”) [18] at 10.)
DISCUSSION
Under FRCP Rule 12(b)(6), a party may seek dismissal of a complaint for “failure to state
a claim upon which relief can be granted.” A complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
complaint is read “in the light most favorable to the plaintiff, accepting as true all well-pleaded facts
alleged, and drawing all possible inferences in [the non-movant’s] favor.” EEOC v. United Airlines,
Inc., ___ F.3d ___, 2012 WL 3871503, *2 (7th Cir. Sept. 7, 2012) (internal quotation marks and
4
citations omitted). The court evaluates Plaintiffs’ claims under these standards, beginning with
Plaintiffs’ claim that Thorne administered illegal pre-employment medical examinations (Count II).
A.
Legality of FFH Test and Medical Exam
The ADA affords protection against certain medical examinations and inquiries made of any
job applicant, regardless of disability. The Seventh Circuit summarized the ADA’s requirements
as “a prohibition against using pre-employment medical tests; a prohibition against the use of
medical tests that lack job-relatedness and business necessity; and a prohibition against the use
of tests which screen out (or tend to screen out) people with disabilities.” Karraker v. Rent-ACtr., Inc., 411 F.3d 831, 834 (7th Cir. 2005).4
1.
Illegal Pre-Employment Medical Exams
Prior to the extension of a job offer, which the ADA refers to as “preemployment,” employers
“shall not conduct a medical examination or make inquiries of a job applicant as to whether such
applicant is an individual with a disability or as to the nature or severity of such disability.”
42 U.S.C. § 12112(d)(2)(A); 29 C.F.R. § 1630.13.
An employer may, however, “make
preemployment inquiries into the ability of an applicant to perform job-related functions.”
42 U.S.C. § 12112(d)(2)(B). An employer may also ask an applicant to describe or to demonstrate
how the applicant will perform job-related functions. 29 C.F.R. § 1630.14(a). After making a job
offer, an employer “may require a medical examination . . . prior to the commencement of the
employment duties of such applicant, and may condition an offer of employment on the results of
such examination” as long as all entering employees are subjected to the same examination
regardless of disability. 42 U.S.C. § 12112(d)(3).
Plaintiffs label Thorne’s FFH test and medical examination as “pre-employment
4
The court notes that the ADA was significantly amended in the Americans with
Disabilities Act Amendments Act of 2008 (“ADAAA”). Nothing in the ADAAA changes the
prohibitions cited here.
5
examinations” (Compl. ¶ 3), and they argue that the tests were administered before Rosas received
a “genuine conditional offer of employment.”5 (Pls.’ Resp. at 7.) Thorne argues in response that
Rosas received a conditional offer of employment before being tested by Concerta. (Def.’s Mem.
at 3.) The court reads the facts in the light most favorable to Plaintiffs and assumes that the FFH
test and medical examination took place pre-offer.
Rosas himself passed Thorne’s medical examination, and the Union has not identified any
other individual who was denied employment for failing the medical exam. As a result, Defendant
argues, Plaintiffs lack standing to challenge the medical exam. (Def.’s Mem. at 10.) In support,
Defendant cites O’Neal v. City of Albany, where the Seventh Circuit held that “courts have required
that a nondisabled plaintiff [must] at least show some tangible injury-in-fact caused by
the § 12112(d) violation.” 293 F.3d 998, 1007-08 (7th Cir. 2002) (emphasis in original) (citations
omitted). The court agrees that Rosas, who passed the medical exam, has no injury-in-fact related
to it and no standing to challenge its legality. The court also agrees that the Union lacks standing.
The Union claims that the medical examination unlawfully caused Thorne to deny “some of its
members” employment in addition to barring Rosas (Compl. ¶¶ 63, 70), but the Union has not
identified any such individuals with particularity. The court concludes Plaintiffs lack standing to
challenge the medical examination and therefore need not determine whether that examination
constitutes an illegal pre-offer medical examination under the ADA.
Plaintiffs also characterize the FFH test which Rosas failed as a medical examination; they
note that it “was administered and interpreted by a medical professional, and was designed to
reveal an impairment of physical health.” (Pls.’ Sur-Reply to Def.’s Reply to Def.’s Mot. to
Dismiss [24] at 5.) The Equal Employment Opportunity Commission (“EEOC”) defines a medical
5
“A genuine conditional offer of employment is one in which ‘the employer has
evaluated all relevant non-medical information that it reasonably could have obtained and analyzed
prior to giving the offer.’” (Pls.’ Resp. at 7) (quoting O’Neal v. City of Albany, 293 F.3d 998, 1008
(7th Cir. 2002) (internal citation omitted)).
6
examination as “a procedure or test that seeks information about an individual’s physical or mental
impairments or health.” EQUAL EMP’T OPPORTUNITY COMM’N, EEOC NOTICE 915.002, ENFORCEMENT
GUIDANCE: PREEMPLOYMENT DISABILITY-RELATED QUESTIONS AND MEDICAL EXAMINATIONS (1995).6
The EEOC lists several factors to determine whether a test is medical: (1) administration by a
health care professional; (2) interpretation of results by a health care professional; (3) design to
reveal a health impairment; (4) intention to help an employer determine an applicant’s health
impairments; (5) invasiveness; (6) measurement of physiological responses to performing a task
rather than the performance itself; (7) location in a medical setting such as a health care
professional’s office; and (8) use of medical equipment during the test. EEOC NOTICE 915.002.
The EEOC notes specifically that “[a] physical agility test, in which an applicant demonstrates the
ability to perform actual or simulated job tasks” or “[a] physical fitness test, in which an applicant’s
performance of physical teats – such as running or lifting” is not a medical examination. EEOC
NOTICE 915.002.
As an example of the difference between an impermissible medical test and a permissible
performance test, the EEOC describes a requirement that applicants lift a 30-pound box and carry
it 20 feet. If the only component of the test is to see whether the applicant can carry the box, it is
“not a medical examination; it is just a test of whether the applicant can perform the task.”
If, however, the applicant’s blood pressure or heart rate are tested after carrying the box, “the test
would be a medical examination because it is measuring the applicant’s physiological
response . . . as opposed to the applicant’s ability” to perform the task. EEOC NOTICE 915.002.
In this case, Van Klompenburg critiqued Rosas’s manner of lifting the 50-pound and 100-pound
boxes during the FFH test, but evaluating an applicant’s manner of lifting is better categorized as
a performance measure than as a physiological response. Plaintiffs do not contest Defendant’s
6
The court notes that this document has not been updated since the ADAAA, but the
ADAAA does not appear to alter any of the cited provisions.
7
assertion that the FFH test was designed for Thorne by Concerta to simulate the physical
challenges of potential job tasks. The FFH test’s requirements thus fall squarely into the categories
of “physical agility” or “physical fitness” tests, which pose no problems under the ADA. The court
concludes that Thorne did not subject Rosas or any other applicant to an illegal pre-employment
medical examination by administering the FFH test.
2.
Non-Job-Related Exams
An employer may not use a qualification standard that screens out individuals with
disabilities on the basis of disability unless the standard is job-related and consistent with business
necessity. 42 U.S.C. § 12112(b)(6); 29 C.F.R. § 1630.10(a). Plaintiffs claim that the FFH test is
not limited to essential job functions, and that it is meant to screen out individuals with disabilities
rather than to identify job-related skills. (Compl. ¶¶ 19, 36.) Specifically, Plaintiffs dispute that
carpenters need the ability to lift 50- and 100-pound weights to the heights required in the FFH test;
according to Plaintiffs, “[i]t is not an essential function of the job to carry and lift the equivalent
weight of drywall sheets.” (Compl. ¶ 23.) Instead, Plaintiffs assert, alternative means of lifting–such
as lifting in pairs or through the use of scaffolds and mechanical means–are “in fact the usual
methods used by UNION carpenters in the field.” (Compl. ¶ 25.) Notably, while Plaintiffs have
alleged that carpenters “could” use alternative means of lifting, and have described the “usual”
practices that Thorne “clearly must know” are used “in the field,” Plaintiffs do not specifically allege
that these practices are in fact utilized at Thorne job sites. (Compl. ¶¶ 25-26.) The court is
nevertheless satisfied, for purposes of a Rule 12(b)(6) analysis, that Plaintiffs have adequately
pleaded that lifting drywall without assistance is not an essential function of Thorne’s carpentry jobs
and that the FFH test was therefore not sufficiently job-related and consistent with business
necessity for the Lurie Hospital job.
The true reason Thorne began administering the FFH test and medical examination,
8
according to Plaintiffs, was “to lower [Thorne’s] workers’ compensation costs.” (Pls.’ Supp. at 4.)
A policy of not hiring applicants due to slightly increased risk of injury may either function as a
pretext for outright discrimination, or, more subtly, have a tendency to screen out people who are
disabled, violating 42 U.S.C. § 12112(b)(6). The statute, 42 U.S.C. § 12113(b), does, however,
provide a defense to a charge of discriminatory qualification standards when “an individual . . .
pose[s] a direct threat to the health or safety of other individuals in the workplace.” Chevron
U.S.A. Inc. v. Echazabal, 536 U.S. 73, 76 (2002) extends this reasoning to situations in which the
employer fears for the employee’s own safety.
All of the evidence Plaintiffs cite in support of their suspicions about Thorne’s motivation
instead appears to reveal a purpose that is entirely consistent with this rationale. Plaintiffs offer
the following quotes from the Arbitration Transcript:
Physical Therapist Von Klompenburg: “The purpose of the test was to
determine whether or not he can safely perform the task in order not to cause
possible harm to himself.” Transcript “T” page 78.
...
Thorne President Dana Thorne: The test would be a good idea for Thorne
because “it would enhance our efforts to work in a safe manner to avoid injury
to our employees.” T. p. 97.
Thorne President Dana Thorne: “We need to demonstrate to our customers
that we are capable of operating in a safe manner . . . that we have a good safety
record and a good safety program.” T. p. 97.
Vice President Michael Degnan: A Carpenter who could not pass the test
“doesn’t meet our qualifications . . .for fitness. And the possibility might be that
you might hurt somebody or hurt himself. You don’t want the employee to get
hurt.” T. p. 169.
(Pls.’ Supp. at 4-5) (bold in original). In Twombly, the Court ruled that the plaintiff needed to
present “allegations plausibly suggesting (not merely consistent with) agreement” to fix prices.
550 U.S. at 545. Unwilling to entertain “false inferences,” the Court dismissed the plaintiffs’ claims
of collusion, finding them to be “consistent with conspiracy, but just as much in line with a wide
9
swath of rational and competitive business strategy unilaterally prompted by common perceptions
of the market.” Id. In this case, Defendant’s statements regarding the importance of safety appear
as likely to be motivated by § 12113(b) “direct threat” concerns as by workers’ compensation
calculations.
In inquiring into a job’s essential functions, the court is not free to second-guess an
employer’s business judgment with regard to performance standards: an employer need only show
that it actually imposes the disputed requirements on employees in practice. 29 C.F.R. Pt. 1630,
App. Defendant argues that the FFH test was specifically designed to measure essential job
functions, and that failing it indicates an inability to perform those essential functions. In a
memorandum of law, Plaintiffs themselves assert that 81 of the 82 applicants other than Rosas
who took the FFH test passed it. (Pls.’ Supp. at 11.) This circumstance could undermine their
assertion that the test does not correspond to actual Thorne carpentry duties. Moreover, a fair
reading of the arbitration transcript supports the conclusion that Thorne did thoughtfully prepare
the FFH test to identify essential job functions. Thorne may well be able to establish, either at the
summary judgment or trial stage, that there are circumstances in which an employee does need
the capacity to perform the tasks required in the FFH test. On a motion to dismiss, however, the
court considers only those well-pleaded facts that appear in the Plaintiffs’ complaint. At this stage,
the court concludes that Plaintiffs have adequately pleaded that the FFH test was not job-related
and was not consistent with business necessity: specifically, Plaintiffs have alleged that Rosas
remained able to perform the same types of work he had performed for Thorne in the past, and that
the FFH test requirements were not a realistic metric of the tasks actually performed by carpenters
in the field.
B.
Discrimination Against Rosas on the Basis of Disability
To establish employment discrimination under the ADA, a plaintiff must show (1) that he
10
is disabled within the meaning of the ADA; (2) that he is qualified to perform the essential functions
of the job, either with or without a reasonable accommodation; and (3) that he suffered from an
adverse employment action because of his disability. Hoppe v. Lewis Univ., ___ F.3d ___,
2012 WL 3764717, *4 (7th Cir. Aug. 31, 2012) (citations omitted). Thorne contends that Rosas is
not “a qualified individual with a disability” under the ADA’s definition, and therefore cannot bring
any claim under the ADA. (Thorne’s Mot. to Dismiss (hereinafter “Def.’s Mot.”) [14] ¶ 2.) The ADA
defines a disability as “(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual; (B) a record of such an impairment; or (C) being regarded
as having such an impairment.”7 42 U.S.C. § 12102(1). With regard to the definition’s first prong,
“actual” impairment, the ADA specifies that “major life activities include, but are not limited to . . .
lifting . . . and working.” 42 U.S.C. § 12102(2)(A). With regard to the third prong, “regarded as”
impairment, the ADA states:
An individual meets the requirement of “being regarded as having such an
impairment” if the individual establishes that he or she has been subjected to an
action prohibited under this Act because of an actual or perceived physical or
mental impairment whether or not the impairment limits or is perceived to limit a
major life activity.8
7
Neither the ADA nor the ADAAA define “impairment.” The EEOC regulations
implementing the ADA adopt the definition of “physical or mental impairment” used in
34 C.F.R. § 104, which implements Section 504 of the Rehabilitation Act. 29 C.F.R. Pt. 1630, App.
The Rehabilitation Act regulations define an impairment as “any physiological disorder or condition
. . . affecting one or more of the . . . body systems . . . [including] musculoskeletal.”
34 C.F.R. § 104.3(j)(2)(I). The EEOC regulations implementing the ADA note, however, that
“‘impairment’ does not include physical characteristics such as . . . height, weight, or muscle tone
that are within ‘normal’ range and are not the result of a physiological disorder.”
29 C.F.R. Pt. 1630, App. In the EEOC regulations implementing the ADA, an impairment is a
disability if “it substantially limits the ability of an individual to perform a major life activity as
compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). An impairment
need not prevent or even significantly restrict an individual from performing a major life activity in
order to be considered substantially limiting, but “not every impairment will constitute a disability
within the meaning of this section.” 29 C.F.R. § 1630.2(j)(1)(ii).
8
The appendix to the implementing regulations (“Appendix”) appears less than fully
updated on this point. Compare 29 C.F.R. Pt. 1630 App. (“an individual who is regarded by an
(continued...)
11
42 U.S.C. § 12102(3)(A). The “regarded as” prong “does not apply to impairments that are
“transitory and minor.” 42 U.S.C. § 12102(3)(B).
Plaintiffs suggest that Rosas’s failing the FFH test demonstrates that he is limited in the
major life activities of lifting and working. Whether Rosas is disabled under the ADA’s “actual”
impairment prong depends on the meaning of the word “substantially.” The ADAAA specifies that
“[t]he definition of disability in this chapter shall be construed in favor of broad coverage of
individuals under this chapter, to the maximum extent permitted by the terms of this chapter.”
42 U.S.C. § 12102(4)(A). The associated regulations instruct courts to be generous in determining
whether a plaintiff is substantially limited: “[t]he term ‘substantially limits’ shall be construed broadly
in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
‘Substantially limits’ is not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(I). The
regulations explain that the post-ADAAA definition of disability is broader than the one employed
by courts pre-amendment.9 29 C.F.R. § 1630.2(j)(1)(iv).
Still, the category of disability is not unlimited. According to the post-ADAAA regulations,
“[a]n impairment is a disability within the meaning of this section if it substantially limits the ability
of an individual to perform a major life activity as compared to most people in the general
8
(...continued)
employer . . . as having an impairment that substantially limits a major life activity is an individual
with a disability”) (emphasis added), with 29 C.F.R. § 1630.2(j)(2) (“[w]hether an individual’s
impairment ‘substantially limits’ a major life activity is not relevant to coverage under . . . the
“regarded as” prong”), and 29 C.F.R. § 1630.2(l)(1) (“[a]n individual is ‘regarded as’ having a
disability if he is subjected to a prohibited action such as refusal to hire because of an actual or
perceived impairment, ‘whether or not that impairment substantially limits, or is perceived to
substantially limit, a major life activity.’”), and 29 C.F.R. Pt. 1630 App. (“The concepts of ‘major life
activities’ and ‘substantial limitation’ simply are not relevant in evaluating whether an individual is
‘regarded as having such an impairment.’”).
9
With regard to lifting, pre-ADAAA case law almost certainly would preclude Rosas’s
claim. See Steffen v. Donahoe, 680 F.3d 738, 745 n.5 (7th Cir. 2012) (Seventh Circuit’s
pre-Amendment jurisprudence “clearly indicated that an inability to lift 25 pounds was not a
substantial limitation” on a major life activity).
12
population.” 29 C.F.R. § 1630.2(j)(1)(ii). Comparative assessment between an individual’s
performance and the performance of “most people in the general population . . . usually will not
require scientific, medical, or statistical analysis.” 29 C.F.R. § 1630.2(j)(1)(iv). Even without
engaging in a statistical analysis, the court is prepared to conclude that many people are unable
to lift the 50-pound and 100-pound boxes as required by the FFH test; Rosas’s inability to do so
does not render him substantially limited in lifting ability compared to the general population.
Whether Rosas is substantially limited in the major life activity of working is more
complicated. The Appendix to the EEOC’s post-ADAAA regulations makes clear that claiming
disability under this theory is appropriate “in only very targeted situations. . . . In most instances,
an individual with a disability will be able to establish coverage by showing substantial limitation of
a major life activity other than working.” 29 C.F.R. Pt. 1630, App. In the “rare case” that an
individual must demonstrate substantial impairment in the area of working, a showing that the
individual is substantially limited in performing “a class of jobs or broad range of jobs in various
classes as compared to most people having comparable training, skills, and abilities” is required.
29 C.F.R. Pt. 1630, App. A limitation in performing the unique aspects of a single specific job is
not enough. 29 C.F.R. Pt. 1630, App. The few cases analyzing this issue after the enactment of
the ADAAA reflect that the “broad range of jobs” requirement survives the ADAAA.
Allen v. SouthCrest Hosp., 455 F. App’x 827, 835 (10th Cir. 2011); Azzam v. Baptist Healthcare
Affiliates, Inc., ___ F. Supp. 2d ___, 2012 WL 28117, *6 (W.D. Ky. Jan. 5, 2012).
To the extent his failure on the FFH test renders Rosas unable to work for Thorne alone,
that failure does not render him disabled in a “broad range” of work. An inability to work for a single
employer does not generally demonstrate substantial impairment in a class of jobs. See Allen, 455
F. App'x at 835. In this case, however, Plaintiffs assert that the FFH test purportedly assessed
general carpentry tasks not unique to Thorne jobs. (Compl. ¶ 15.) If Rosas were unable to
perform lifting tasks that really are required for journeyman carpentry work–or even for drywall
13
installation work alone–he is limited in a broad range of jobs. As the Appendix explains, for a
person “whose job requires heavy lifting,” a 50-pound lifting restriction may qualify as a disability
if it prevents that person “from performing not only his or her existing job but also other jobs that
would similarly require heavy lifting.” 29 C.F.R. Pt. 1630, App.
Assuming that Rosas’s lifting restriction thus renders him disabled from the major life
activity of working, the court concludes that Plaintiffs have adequately alleged that Rosas is
qualified for the disputed position as well–that is, he is “an individual who, with or without
reasonable accommodation, can perform the essential functions” of the job. 42 U.S.C. § 12111(8).
Though Rosas did not pass the FFH test, Plaintiffs insist that his 29 years of experience and the
fact that he worked for Thorne during periods between 1995 and 2008 demonstrate that he was
in fact qualified for the Lurie Hospital job. (Compl. ¶¶ 45-48.) Indeed, according to Plaintiffs,
Rosas was specifically requested by Defendant to work as a steward on the Lurie Hospital job
before he failed the FFH test. (Pls.’ Resp. at 8.) These allegations may well establish the “rare
case” in which the claimant is disqualified from a range of jobs available to “most people having
comparable training, skills, and abilities.” 29 C.F.R. Pt. 1630, App.
Finally, even if Rosas is not disabled under the “actual” impairment prong of the ADA’s
definition, he qualifies for protection under the ADA if Thorne discriminated against him because
it regarded him as disabled. 42 U.S.C. § 12102(1)(A)-(C). To meet the “regarded as” prong of the
ADA, a qualified individual must suffer a prohibited action because of an actual or perceived
impairment. 29 C.F.R. § 1630.2(l)(1)-(2). Plaintiffs do not believe that Rosas is substantially
limited by his inability to lift 50-and 100-pound boxes to particular heights; they insist that doing so
is not an actual requirement of the drywall job for which he applied at all. Instead, they suggest,
Defendant has improperly construed this limitation as a disabling condition, thus “regarding [Rosas]
as” disabled. The court concludes Plaintiffs’ allegations are sufficient to state a claim under this
theory.
14
CONCLUSION
Thorne’s Motion to Dismiss [14] is granted with respect to Count II, but otherwise denied.
The FFH test does not qualify as a medical examination under the ADA, and Plaintiffs lack standing
to challenge the medical examination administered by Thorne.
Plaintiffs have, however,
adequately pleaded that the FFH test is not consistent with business necessity and that Rosas is
a qualified person with a disability within the meaning of the ADA. Defendant is therefore directed
to answer Counts I and III within 21 days. A Rule 16 conference is set for October 30, 2012, at
9:00 a.m.
ENTER:
Dated: September 25, 2012
_________________________________________
REBECCA R. PALLMEYER
United States District Judge
15
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