By Lisa Milam-Perez, J.D. A commercial truck driver who was in remission from a rare form of cancer was unable to revive his ADA discrimination claim against a trucking company that had rejected his job application because he lacked the requisite three years of mountain-driving experience for the position. Affirming summary judgment in the employer’s favor, the Tenth Circuit found the driver was unable to raise a genuine fact dispute as to whether the stated driving experience was indeed an essential job function and, thus, whether he was a qualified individual with a disability. Moreover, the fact that the company refused to reconsider its decision not to hire him after he raised the specter of a potential ADA breach did not give rise to a retaliation claim, the appeals court said, affirming summary judgment for the employer on this ADA cause of action as well (Kilcrease v. Domenico Transportation Co., July 12, 2016, McHugh, C.). Application denied. The commercial truck driver had been temporarily unable to work due to the effects of acute myeloid leukemia, a rare form of cancer. Five years into remission, though, he completed a pre-application questionnaire for a truck driver position with the defendant employer. The company was looking for a driver with three years of verifiable mountain driving, among other qualifications. On his questionnaire, he said he had eight years of driving experience and three years of mountain-driving experience. He also noted that he had been unemployed since 2002 (citing his illness, but that he was now in remission) and therefore, he had no recent driving experience to list. The company denied his application. According to the driver, during the phone call in which he was told his application was rejected, he was informed that the insurance company that underwrites the company’s health plan wouldn’t cover him because of his past diagnosis. At that point, according to the driver, he asked, "I am not being considered for employment because I am in remission from [cancer]?’" and the company rep responded, "Yes." The driver then suggested the refusal to hire him "might fall under the Americans with Disabilities Act." But the employer did not reconsider. In response to his EEOC charge, the employer attested that it rejected the employee because he lacked the required three years of mountain-driving experience—which, it claimed, was required by its auto insurance underwriter—and not because of any preexisting medical condition. The employer maintained this position throughout, with success, in response to his subsequent ADA discrimination and retaliation suit; the district court granted summary judgment in its favor. Qualifications matter at prima facie stage. The driver argued to no avail that the lower court shouldn’t have considered his qualifications at the prima facie stage. He cited the Tenth Circuit’s 1992 decision in Kenworthy v. Conoco, Inc., asserting that the case foreclosed consideration of a job applicant’s qualifications at the prima facie stage of a discrimination claim. But this decision merely held that courts may not consider at this stage an employer’s assertion that a plaintiff was less qualified than the successful applicant; the decision did not relieve plaintiffs of the obligation to present evidence that they possess the minimum qualifications for the job they seek. Rather, "consideration of a plaintiff’s qualifications at the prima facie stage is not only proper, but necessary," the appeals court explained. It also rejected the driver’s additional argument that the employer had applied its "mountain-driving requirement" in a subjective fashion, finding insufficient evidence to support his assertion. Not a qualified individual. The undisputed facts showed that the driver could not satisfy the requirement of three years of verifiable mountain-driving experience (defined as experience driving routes that include grades of 6 percent or more sustained for at least a mile) and, therefore, he was not a "qualified individual" under the ADA. On his pre-application questionnaire, he attested that he did possess the required three years of mountain-driving experience, but he conceded at his deposition that he "mis-added all the months" of experience and that, in fact, he only had about a year and a half. Actually, though, he cited two different past jobs, which included two months and six months, respectively, of mountain-driving experience, and argued that "a reasonable juror could conclude, based on the above-listed experience," that he satisfied the employer’s requirements. The appeals court did not agree. Essential job function. The driver also argued that the mountain-driving requirement wasn’t really an essential function because it wasn’t uniformly enforced. He alleged that the employer hired six drivers without such experience during the very month that he applied, but the evidence did not back this up. He had relied only on a company official’s deposition testimony that the official wasn’t sure of the other drivers’ qualifications because he wasn’t the one who interviewed them. That wasn’t enough for the driver to meet his evidentiary burden to create a factual dispute on this issue. The driver also argued that mountain-driving experience wasn’t an essential job function since it didn’t appear in writing. But the employer introduced evidence that the requirement was contained in the job ad that the driver had responded to. And, at any rate, the driver cited "no authority for the proposition that a job requirement contained on the face of a job description cannot be essential merely because it has not been reduced to a written company policy." No retaliation. Summary judgment also was proper on the driver’s retaliation claim because the employer made the decision not to hire him before the driver raised any ADA concerns. As such, there was no causal connection between his protected activity and any adverse employment decision. During their phone call, the driver told the employer that its decision might implicate the ADA. The company official made no further inquiries about the driver’s current health condition or his job qualifications; he simply ended the call. The driver insisted that the failure to reconsider him after he brought up the ADA amounted to a "second refusal to hire" and, thus, an adverse employment action. But there was no legal support for such a notion. The driver offered no evidence that the initial hiring decision was merely tentative, or subject to reconsideration, or that the decision was a response to his asserting his rights under the Act. Rather, the decision not to hire had been "unequivocal," and had preceded any talk of the ADA. Therefore, there was no adverse employment action upon which to base an ADA retaliation claim.
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