from the United States District Court(D.C. No.
2:12-CV-02634-JWL) for the District of Kansas
Barbara L. Sloan (P. David Lopez, General Counsel, Jennifer
S. Goldstein, Associate General Counsel, and Margo Pave,
Assistant General Counsel, with her on the briefs), Equal
Employment Opportunity Commission, Washington, D.C., for
L. Gockel (Lynne Jaben Bratcher, with her on the briefs),
Bratcher Gockel Law, L.C., Kansas City, Missouri, for
P. Neal (Stephen F Fink, with him on the brief) Thompson
& Knight, LLP, Dallas, Texas, for Defendant-Appellee.
LUCERO, PHILLIPS, and MORITZ, Circuit Judges.
PHILLIPS, CIRCUIT JUDGE.
Duty filed this suit against a railroad company, BNSF Railway
Company ("BNSF"), after he applied to work there as
a locomotive electrician. Duty has an impairment that limits
his grip strength in his right hand. Fearing that Duty would
fall from ladders, BNSF revoked his offer for employment.
Duty and the Equal Employment Opportunity Commission (the
"Commission") sued BNSF for employment
discrimination under the Americans with Disabilities Act (the
"ADA"). The ADA protects disabled workers from
discrimination. But it limits its protection by recognizing
that not all impairments are disabilities. Applying the
ADA's definition of "disability, " the district
court found that Kent Duty was not disabled and granted
summary judgment to BNSF. On appeal, we affirm.
Duty's Injury and Work History
sixteen, a car accident left Kent Duty with severe injuries
to his right arm. He suffered from nerve and muscle damage,
which caused some of the joints in his right hand to contract
into a visible "clawhand." Duty Opening Br. at 10.
After two years of physical therapy, Duty's right hand
reached its maximum potential recovery, but he still lacks
grip strength and cannot oppose his right thumb or perform
fine-motor activities. With practice, he's retrained
himself to become left-handed and use his right hand as a
"helper" to assist him in various tasks. The tasks
that he can perform include holding, grasping, turning, and
pulling. He can also pinch objects with his thumb and index
finger and carry twenty-five pounds with his right arm and up
to five pounds with his right hand.
with his impairment, Duty has been a capable employee. For
over twenty years, he worked as a maintenance manager for a
dry-cleaning company where he installed and maintained its
equipment and buildings. There, he gained electrical
experience and worked with a variety of tools including
drills, saws, wrenches, sanders, and blow guns. He could
climb ladders and perform all of his job functions.
employer considered him a valuable employee and gave him
consistent raises and bonuses.
Duty's Application to BNSF
his employer declared bankruptcy, however, Duty started
looking for another job. He applied to work at BNSF as a
locomotive electrician. The job posting stated that BNSF
expected its locomotive electricians to climb on and off
locomotives and equipment, work around heavy machinery, lift
equipment, use hand tools, and maintain and repair
high-voltage electrical equipment.
interviewed with a panel of BNSF employees who evaluated his
electrical experience. Based on his work history, the panel
recommended him for employment. Members of the panel noticed
his hand condition but didn't factor it into their
consideration. BNSF made Duty a conditional job offer in
which it explained that Duty would have to pass a background
check and drug screening, and complete a medical-history
questionnaire, Duty revealed that he had nerve trauma and had
undergone surgery in the past. BNSF's third-party medical
contractor, Comprehensive Health Services, contacted Duty and
arranged a medical exam with its physician, Dr. Gil Wright.
Because of Duty's answers to the questionnaire, Dr.
Wright performed an occupational assessment and examined
Duty's musculoskeletal capabilities. His exam showed that
Duty had a normal range of motion in his right shoulder and
elbow, but that his range of motion in his right wrist,
particularly his backward movement (dorsi-flexion), was zero
when a normal degree of range is 60.
exam also revealed other abnormal results. On his written
opinion form, Dr. Wright checked the box "Not Qualified
- further evaluation required." EEOC App. vol. 5 at
1343. Because Health Services is an information-gathering
service, it can only recommend that BNSF disqualify an
employee from service but cannot itself disqualify anyone.
Health Services sent its evaluation to BNSF's in-house
medical staff where the chief medical officer, Dr. Michael
Jarrard, reviewed it.
Jarrard is an occupational-medicine physician. He determines
an employee's fitness for work and has the authority to
disqualify an employee from service. When Dr. Jarrard
reviewed Dr. Wright's findings, he was principally
concerned with Duty's lack of grip strength and his
ability to satisfy BNSF's three-point-contact rule, a
safety standard that applies to climbing in the workplace.
parties dispute the specifics of BNSF's
three-point-contact rule. The rule comes from the
Occupational Safety and Health Administration (OSHA), a
federal agency that sets minimum workplace health and safety
standards. OSHA's version of the rule requires that
employees maintain three points of contact when climbing,
which means that two feet and one hand or two hands and one
foot contact the ladder at all times. From Dr. Jarrard's
understanding, the rule requires that employees have the
strength to support their entire body weight with one hand to
prevent falls when they lose their footing.
he could determine whether Duty qualified for the position,
Dr. Jarrard needed additional information on ...