United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 23, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 02-30472
JOSEPH P. FUZY,
Plaintiff-Appellant,
VERSUS
S&B ENGINEERS & CONSTRUCTORS, LTD
Defendant-Appellee.
Appeal from the United States District Court
For the Middle District of Louisiana
Before DeMOSS, and STEWART, Circuit Judges, and FALLON1, District
Judge.
DeMOSS, Circuit Judge:
On or about March 22, 1999, Joseph P. Fuzy applied for a job
with S & B Constructors, Ltd. (“S&B”) as a pipefitter. Fuzy had
extensive experience as a pipefitter but also had a history of
injuries to his left knee. However, Fuzy had never been unable to
physically perform any job due to his injury nor has a physician
ever placed him on a work restriction due to the injury.
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District Judge of the Eastern District of Louisiana, sitting
by designation.
Additionally, Fuzy has never been told by a physician that he is
disabled. Fuzy was given a conditional offer of employment from
S&B, but was required to satisfactorily complete a physical
capacity evaluation and a drug screen performed by a third-party
testing service before his offer could be finalized. During the
physical examination, Fuzy was asked to complete a medical history
form and to perform various physical capacity tests. One test
measured Fuzy’s ability to lift 100 pounds unassisted, because
under the Department of Labor’s Dictionary of Occupational Titles,
the job of pipefitter is placed in the heavy category with a
physical demand level of 100 pounds. Fuzy was only able to lift 92
pounds and subsequently was not hired as a pipefitter.
Fuzy sued S&B claiming that they violated the Americans with
Disabilities Act, and a similar Louisiana anti-discrimination law,
by denying his application for employment solely on the basis of
his failure to satisfy the lifting requirement. S&B moved for
summary judgment on both claims, arguing that Fuzy was not
“disabled” within the meaning of the ADA and that, even if he did
have standing to sue under the ADA, the tests used were permissible
because it related to an essential function of the job. The
district court granted S&B summary judgment and Fuzy appealed.
This Court reviews a grant of summary judgment de novo.
Mowbray v. Cameron County, Tex., 274 F.3d 269, 278 (5th Cir. 2001).
Summary judgment is only appropriate when the record indicates “no
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genuine issue as to any material fact,” and when “the moving party
is entitled to judgment as a matter of law.” Fed, R. Civ. P.
56(c). On appeal, Fuzy only argues that the district court erred
in denying his ADA claims under 42 U.S.C. § 12112(b)(6) and under
§ 12112(d). He therefore waives his other claims including his
claims under Louisiana state law. Yohey v. Collins, 985 F.2d 222,
224-225 (5th Cir. 1993) (holding that arguments not briefed on
appeal are abandoned). Fuzy also does not contest the district
court’s finding that he is not disabled within the meaning of the
ADA, but rather, asserts that it erred in not allowing him to move
forward with his claim despite the fact that he is not disabled.
Fuzy bases his argument on this Court’s decision in Armstrong v.
Turner Indus., 141 F.3d 554 (5th Cir. 1998), and on the Tenth
Circuit’s decision in Griffin v. Steeltek, Inc., 160 F.3d 591 (10th
Cir. 1998).2
“The ADA prohibits an employer from using qualification
standards that screen out a disabled individual or class.” EEOC v.
Exxon Corp., 203 F.3d 871, 872 (5th Cir. 2000) (citing 42 U.S.C. §
12112(b)(6) (1999)). As Fuzy concedes that he is not disabled, he
2
It is arguable that Fuzy has even waived these arguments.
Fuzy’s brief only mentions Griffin in the request for oral argument
and his citations under this argument’s heading are scant. Also,
Fuzy’s original complaint makes no mention, specifically, of
§12112(d) and the language used in the complaint almost exactly
mirrors the language of §12112(a) and (b). However, in his motion
opposing summary judgment, Fuzy cites to Armstrong as a defense
which arguably indicates that Fuzy was indeed attempting to sue
under §12112(d) as well.
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has no standing to sue under § 12112(b). This leaves Fuzy with
only the argument that he may sue under §12112(d) despite the fact
that he is not disabled. As to this argument, Fuzy is correct in
noting that the Tenth Circuit has recognized that a non-disabled
person may still maintain a cause of action under § 12112(d).
Griffin, 160 F.3d at 594; see also Cossette v. Minnesota Power &
Light, 188 F.3d 964 (8th Cir. 1999); Fredenburg v. Contra Costa
Cty. Dept. of Health Serv., 172 F.3d 1176 (9th Cir. 1999).
However, this Circuit has yet to reach this issue. In Armstrong,
a panel of this Court specifically left open the question of
whether or not the language of § 12112(d) would permit a non-
disabled person from bringing suit. Armstrong, 141 F.3d at 558.
The Court instead found that, even assuming arguendo that such a
claim could be brought under § 12112(d)(2)(A), the plaintiff in
that case had failed to demonstrate any injury that could be
redressed by damages. Id. The Court therefore concluded that the
plaintiff lacked standing to seek declaratory and injunctive relief
and that dismissal was proper “whether or not in some other context
a nondisabled individual might be afforded judicial relief in
respect to a section 12112(d)(2)(A) violation.” Id.
Like the Court in Armstrong, we also reserve judgement on
whether § 12112(d) permits a non-disabled person to bring suit. We
do so because, even assuming arguendo that Fuzy could bring such a
suit, his claim would still fail. S&G presented summary judgment
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evidence that the 100 pound lifting requirement was job related and
Fuzy failed to adequately rebut this evidence. Under
§12112(d)(4)(A) and (B), an employer may inquire and make medical
examinations if they are shown to be job-related and consistent
with business necessity. Therefore, even if this Court assumes,
without deciding, that a person who is not disabled may assert a
claim against an employer or prospective employer for noncompliance
with particular provisions of § 12112, we must still affirm the
district court’s dismissal because Fuzy has not raised a genuine
issue of material fact that the weight lifting test was not a job
related function as to the pipefitting job for which he sought
employment.
The district court’s grant of summary judgment is therefore
AFFIRMED.
AFFIRMED.
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