Wetherbee v. The Southern Company: In Issue of First Impression, Panel Holds that Section 12112(d)(3)(C) of the ADA Requires a Plaintiff to Prove He is Disable

Wetherbee v. The Southern Company, No. 13-10305, from NDGa

Circuit Judge Wilson joined by Senior District Judge Bucklew (MDFla) and Senior District Judge Lazarra (MDFla)

Summary:  The district court granted summary judgment to the defendant on his Americans with Disability Act (ADA) discrimination claim under 42 U.S.C. § 12112(d)(3)(C) (which provides that an ADA violation occurs if medical evaluation information is used in violation of some other provision of the ADA).  The plaintiff was extended a job offer contingent upon satisfactory completion of a medical evaluation.  During the evaluation, he informed the defendant that he suffered from bipolar disorder and, despite his healthcare provider’s recommendation, was not being treated by a psychiatrist. The defendant determined that the plaintiff could be hired only if he was restricted from working on safety-sensitive systems and equipment, and because the position required that he work on such systems and equipment his job offer was rescinded.  The district court granted summary judgment to the defendant based on the ADA’s business necessity affirmative defense, finding that the restriction which led the defendant to rescind the job offer was job-related and consistent with business necessity. 

The issue of first impression discussed in this appeal was whether § 12112(d)(3)(C) requires a plaintiff to prove he is disabled.  Agreeing with the Seventh and Tenth Circuits, the panel concluded that a plaintiff must prove that he is disabled (i.e. that he is a qualified individual with a disability) in order to show that any restriction imposed violated the ADA.  The panel accordingly found that because Plaintiff was not disabled, there was no discrimination and the plaintiff’s § 12112(d)(3)(C) claim failed as a matter of law.

The district court’s grant of summary judgment was accordingly affirmed.

Note: This case was previously before the Eleventh Circuit in 2011 when a panel affirmed the district court’s grant of summary judgment to the defendant under § 12112(a) of the ADA, but remanded the case to allow the district court to address the plaintiff’s claim under § 12112(d)(3)(C).