EEOC, HIV-positive plaintiff-intervenor failed to support allegations of disability bias; summary judgment for employer was proper

Finding a lack of evidence to support claims of discrimination and failure to accommodate, the Tenth Circuit affirmed summary judgment in favor of an employer on ADA claims filed by the EEOC and a former driver-trainer for the employer (EEOC v C.R. England, Inc, May 3, 2011, Holmes, J).

Diagnosed with HIV in 1999, the employee began working for the defendant employer in 2002 as a truck driver. Shortly after his employment began, he voluntarily informed the employer’s human resources manager that he was HIV-positive. In December 2002, he entered into an independent-contractor operating agreement with the employer, changing his status from an employee driver to an independent-contractor driver. The EEOC initiated suit against the employer after the employee complained of being discriminated against and ultimately terminated because of his HIV status. The employee subsequently intervened. The district court granted summary judgment in favor of the employer on all claims.

Discrimination claim. The EEOC and the employee contended the employer discriminated against the employee when it required his trainees to sign a form, “consenting to be trained by an HIV-positive driver.” The district court granted the employer summary judgment, finding the employee had not suffered from an adverse employment action. The court also found there was no evidence in the record to support the adverse employment consequence asserted by the EEOC — namely, that trainees were discouraged from working with the employee because of his disability, as disclosed by the acknowledgment form.

Agreeing with the district court that the EEOC and employee did not state a viable claim under the ADA, the court noted that the employer did not deny the employee the opportunity to become a trainer, demote him, or reassign him because of his HIV status. The employee’s training responsibilities, duties, and compensation were the same as other driver-trainers, and there was no evidence that he was ever segregated from other employees or trainees.

Further, the mere act of disclosing the employee’s HIV status did not in and of itself amount to an actionable adverse action under the ADA, continued the court. While the EEOC argued that the acknowledgment form constituted an actionable adverse action because the employee’s opportunity to be a trainer was conditioned upon the disclosure of his HIV status, limited the pool of trainees to those willing to work with an HIV-positive trucker, and allowed potential trainees to refuse to work with him because of his HIV status, the circuit court found no evidence to support the argument that the employee was “actually limited in any respect.” Only one trainee was given the form and he willingly signed it and submitted to training from the employee. In addition, the employer provided evidence that there was an abundance of trainees in the training pool, which the EEOC and employee did not dispute. Therefore, even if a potential trainee had declined to work with the employee, that fact alone would not have impaired his ability to function as a trainer nor would it have prevented him from taking on another trainee. The EEOC and the employee failed to show the consent form had any meaningful impact or effect on the employee’s opportunities or status, concluded the court. The potential that the consent form could have adversely affected his employment at some unknown time in the future was not enough to support a claim under the ADA. As such, the district court did not err in granting summary judgment in favor of the employer on this claim.

The circuit court also rejected the employee’s contention that it was an adverse employment action when the employer “misdirected [him] on several loads on his first training assignment.” Noting that the misdirection was nothing more than a mere inconvenience that did not constitute an adverse employment action, the court found the ruling that the employee failed to assert a prima facie case and summary judgment in favor of the employer was not in error.

Discharge claims. The employee claimed that he was terminated as a trainer because he was HIV-positive. The circuit court concluded that his claims failed as a matter of law and that summary judgment was not in error. The employer offered several legitimate, nondiscriminatory reasons, supported by the record, why the employee was removed from his trainer position: (1) he “burned” up his hours; (2) he refused a load; and (3) he “deadheaded,” or drove an empty truck over 1,000 miles home. The employee failed to put forth any evidence that undermined the sincerity of the employer’s justification for its action. When asked why he was out of hours, he did not explain but simply refused the load; he did not dispute refusing the load nor did he deny “deadheading” home.

Further, although he argued that deadheading home while training a new driver did not violate a company rule or policy, the employee did not cite any controlling precedent that supported the proposition that an employer’s legitimate, nondiscriminatory justification must be based upon an official company rule or policy, and the court was unaware of any such precedent. While it is true that a failure to follow company policy can support a finding of pretext in some circumstances, the court found no basis for concluding that an otherwise reasonable justification by an employer should be deemed pretextual merely because it was not directly reinforced by an official rule or policy.

As for the employee’s argument that he was fired as a driver because of his HIV status, the court also rejected that claim, finding no evidence that the employer’s justifications for ending his lease agreement was pretextual.

Disclosure claim. The Tenth Circuit rejected the claims asserted by the EEOC and the employee that the employer violated Sec. 102(d) of the ADA by disclosing medical information about his HIV status to employees. On its face, Sec. 102(d) does not apply to or protect information that is voluntarily disclosed by an employee unless it is elicited during an authorized employment-related medical examination or inquiry, wrote the court. However, this provision does not expressly include voluntarily disclosed medical information offered outside the context of “an employee health program.” Because the plain language of the statute is silent with regard to such information, continued the court, it cannot be interpreted as extending the protections of Sec. 102(d)’s confidentiality restrictions to such information. “In sum, if an employer discloses medical information that was voluntarily offered by an employee—outside of the context of an authorized employment-related medical examination or inquiry—then the employer is not subject to liability under Sec. 102(d).” The parties did not dispute the employee voluntarily disclosed his HIV status, nor was there any contention that the disclosure was the result of any examination or inquiry. Accordingly, because the employee voluntarily disclosed his status to his employer, that information was not protected by Sec. 102(d), and the company’s disclosure of this information did not violate that provision. As such, summary judgment for the employer was not in error.

Accommodation claim. The Tenth Circuit also rejected the employee’s claim that by denying his request for “home time,” the employer failed to provide a reasonable accommodation. The employee did not make an adequate request for reasonable accommodation, wrote the court. His initial request for “home time” never mentioned that he needed time off due to his illness. After his second “home time” request was denied, the employee mentioned that he couldn’t handle the “stress level” and needed to see his doctor. However, the court found that such a fleeting reference — seemingly made in conjunction with his stress level and not his alleged disability — was insufficient to put the company on notice that he needed time off due to his alleged disability (i.e., his HIV-positive status). Thus, the employer’s obligation under the ADA was never triggered.

Retaliation claim. Finally, the employee did not establish a prima face case that the employer retaliated against him by sending his debt to a collection agency as a result of his EEOC complaint. The court noted he did not show a causal connection between the protected activity and the materially adverse action and, even if he had established a prima facie case of retaliation, the employer proffered a legitimate, nondiscriminatory reason for attempting to collect the debt by showing that the “amount charged off was a ‘just debt’” that the employee “genuinely owed” under the lease agreement — which the employee did not contest. Accordingly, the district court did not err in granting summary judgment to the employer on the retaliation claim.