Fuzy v. S&B Engineers & Constructors, Ltd.

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.