Case: 09-30255 Document: 00511150596 Page: 1 Date Filed: 06/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 22, 2010
No. 09-30255 Lyle W. Cayce
Clerk
DON KEMP,
Plaintiff-Appellant,
v.
ERIC H. HOLDER, JR., UNITED STATES DEPARTMENT OF JUSTICE; A
K A L SECURITY, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana, Monroe Div.
Before KING, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:
Appellant Don A. Kemp appeals the district court’s grant of summary
judgment in favor of appellees on his claims for violations of the Americans with
Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”) arising from the
termination of employment as a federal court security officer. Specifically, the
district court held that Kemp failed to show a genuine issue of material fact
regarding whether he has a “disability,” as that term is defined under the ADA.
Finding no error, we affirm.
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I.
Appellant Don A. Kemp was discharged from his position as a court
security officer (“CSO”) with the United States Marshals Service (“USMS”) after
failing to meet the minimum unaided hearing requirement established for CSOs.
Kemp, who has worked in the military and in law enforcement for over thirty
years, began wearing a hearing aid in the early 1980s and added a second aid in
1989. It is undisputed that he has no problems hearing so long as he wears his
aids. In 2000, while working as a police officer, Kemp inquired about a position
as a CSO with AKAL Security, Inc. (“AKAL”), a private firm that contracts with
USMS to provide security at a federal courthouse in Louisiana. When he applied
for the position, Kemp informed AKAL that he wore hearing aids to compensate
for his hearing loss, but AKAL did not indicate that this circumstance would
cause any problems. AKAL later offered Kemp a job as a CSO contingent upon
his successful passage of a medical examination required by USMS for all CSOs.
Kemp began working at the courthouse in February 2001 after undergoing
an initial medical examination. Shortly thereafter, USMS notified him that the
results of that exam indicated that his unaided hearing did not meet the
minimum standard for the CSO position. Kemp underwent further testing in
April at USMS’s direction, but USMS regulations prohibited him from using his
hearing aids during the tests. In July 2001, USMS informed AKAL that Kemp
did not meet USMS medical qualifications for minimum unaided hearing and
that his credentials as a CSO would be immediately revoked on that basis.
AKAL consequently terminated Kemp, but it assisted him in appealing the
disqualification decision, writing a letter to USMS requesting a reconsideration
of the decision to revoke Kemp’s credentials and seeking confirmation that his
medical condition had been individually assessed. Despite those efforts, USMS
did not reinstate his credentials.
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Following his termination, Kemp filed suit against the defendants alleging
violations of the ADA, the RA, and Louisiana anti-discrimination law. He also
claimed that he had been terminated in violation of his equal protection and due
process rights. The district court granted AKAL’s summary judgment motion
on all claims in November 2008, and it entered summary judgment in favor of
the government on all claims in March 2009. Kemp appeals the grants of
summary judgment as to his ADA and RA claims only. We have jurisdiction
under 28 U.S.C. § 1291.
II.
This court reviews a district court’s grant of summary judgment de novo.
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007).
Summary judgment is appropriate when “the discovery and disclosure materials
on file[] and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c); Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir.
2009). “A genuine issue of material fact exists if a reasonable jury could enter
a verdict for the non-moving party.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th
Cir. 2008) (citation omitted). This court must take all the facts and evidence in
the light most favorable to Kemp, the non-moving party. Breaux, 562 F.3d at
364.
III.
Kemp argues that by terminating his employment due to his failure to
meet USMS’s established unaided hearing requirement, AKAL violated the
ADA, and USMS violated the RA. Both of these statutes prohibit employment
discrimination against qualified individuals with disabilities, but the statutes
govern different entities: the ADA applies only to public entities, including
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private employers, 42 U.S.C. § 12131(1), whereas the RA prohibits
discrimination in federally-funded programs and activities, 29 U.S.C. § 794(a).
The RA and the ADA are judged under the same legal standards, and the same
remedies are available under both Acts. See Delano-Pyle v. Victoria County,
Tex., 302 F.3d 567, 574 (5th Cir. 2002) (“The language in the ADA generally
tracks the language set forth in the RA,” and “[j]urisprudence interpreting either
section is applicable to both.”). Likewise, the relevant definition of disability set
forth in the ADA is applicable to claims made under the RA. See Dutcher v.
Ingalls Shipbuilding, 53 F.3d 723, 725 n.4 (5th Cir. 1995) (noting that the ADA’s
definition of a disability is “substantially equivalent” to the RA’s definition).
The ADA provides that no covered employer shall “discriminate against
a qualified individual with a disability because of the disability of such
individual in regard to . . . discharge of employees.” 42 U.S.C. § 12112(a). To
prevail on his ADA and RA claims, Kemp must establish that (1) he is disabled
within the meaning of the ADA, (2) he is qualified and able to perform the
essential functions of his job, and (3) his employer fired him because of his
disability. See Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir. 1999).
The ADA defines a disability as “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a
record of such impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1). Major life activities include “caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.” Id. § 12102(2)(A).
Kemp disputes the district court’s holding that he failed to meet the
“threshold requirement” of showing that he is disabled under the terms of the
ADA. Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996).
We consider whether he has raised a genuine issue of material fact as to whether
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he is disabled as defined by the ADA by showing either that he has a physical
impairment that substantially limited one or more of his major life activities or
that AKAL and USMS regarded him as having such an impairment.
A.
Kemp first challenges the district court’s conclusion that, because his
hearing impairment is not substantially limiting when it is mitigated through
Kemp’s use of his electronic hearing aid, he did not raise a genuine issue of
material fact regarding whether he had “a physical or mental impairment that
substantially limits one or more major life activities of such individual.” 42
U.S.C. § 12102(1)(a). In reaching this holding, the district court relied on the
Supreme Court’s decisions in Sutton v. United Air Lines, Inc. and Murphy v.
United Parcel Services, Inc., which held that courts must take into account the
benefit of any impairment-mitigating devices that the plaintiff uses in
determining whether he is disabled within the meaning of the ADA. See Sutton,
527 U.S. 471, 482 (1999) (“[I]f a person is taking measures to correct for, or
mitigate, a physical or mental impairment, the effects of those measures—both
positive and negative—must be taken into account when judging whether that
person is ‘substantially limited’ in a major life activity and thus ‘disabled’ under
the [ADA].”), superseded by statute, ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553; Murphy, 527 U.S. 516, 521 (1999) (holding that the
“determination of [a person’s] disability is made with reference to the mitigating
measures he employs.”). Kemp contends that the district court’s reliance on
these cases is misplaced because the ADA Amendments Act of 2008 (“ADAAA”)
retroactively applies to overrule these decisions and permits ADA-defined
disability to be discerned without regard to the mitigating effects of his hearing
aids.
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According to Kemp, the ADAAA was enacted specifically for the purpose
of remedying the catch-22 created by the Sutton decision in which an employer
may evaluate an employee’s capabilities without regard to mitigating devices,
but the use of such devices is nevertheless considered when the court determines
whether that employee is “disabled” under the terms of the ADA. Kemp is
correct that the ADAAA sought to supersede Sutton. The “Findings and
Purposes” section of the Act explained that Congress considered “the holdings
of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)
and its companion cases [to] have narrowed the broad scope of protection
intended to be afforded by the ADA, thus eliminating protection for many
individuals whom Congress intended to protect.” ADAAA, sec. 2(a)(4). The
ADAAA went on to explicitly overrule “the requirement enunciated by the
Supreme Court in Sutton . . . and its companion cases that whether an
impairment substantially limits a major life activity is to be determined with
reference to the ameliorative effects of mitigating measures,” sec. 2(b)(3), and
amended the ADA to mandate that the “determination of whether an
impairment substantially limits a major life activity . . . be made without regard
to the ameliorative effects of mitigating measures such as— . . . implantable
hearing devices,” ADAAA, sec. 4(a), §(4)(E)(I).
Kemp concedes that he filed his lawsuit before the ADAAA became
effective, but he urges us to find that the ADAAA may be applied retroactively
such that we may consider whether Kemp was disabled in a major life activity
without regard to the mitigating effects of his hearing aids. However, Kemp
relegated this argument to a footnote in his brief, and he has provided no
support for his contention that the ADAAA could be applied in such a manner.
Regardless, his argument is foreclosed by our decision in Carmona v. Southwest
Airlines, in which we declined to “find that Congress intended the ADAAA to
apply retroactively.” 604 F.3d 848, 857 (5th Cir. 2010) (citing EEOC v. Argo
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Distribution, LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009)). Thus, even though
Kemp’s claim might fare differently if the ADAAA applied, we are bound to
follow Sutton and evaluate whether his impairment constitutes a disability when
taking into account the benefit imparted by his hearing aids. See Sutton, 527
U.S. at 482. Kemp readily admits that he is not substantially limited in any life
activity when he wears his hearing aids, so we find no error in the district court’s
conclusion that he does not have a “disability” within the meaning of 42 U.S.C.
§ 12102(1)(A).1
B.
Kemp also disputes the district court’s conclusion that he failed to raise a
genuine issue of material fact regarding whether he is “regarded as having” an
impairment that substantially limits a major life activity. 42 U.S.C.
§ 12102(1)(C). The ADA’s definition of “disability” permits suits “by plaintiffs
who, though not actually disabled per § 12102(2)(A), are nonetheless ‘regarded
as having such an impairment.’” Gowesky v. Singing River Hosp. Sys., 321 F.3d
503, 508 (5th Cir. 2003) (quoting 42 U.S.C. § 12102(2)(C)). To meet this
standard, a plaintiff must show either that “(1) a covered entity mistakenly
believes that a person has a physical impairment that substantially limits one
or more major life activities, or (2) a covered entity mistakenly believes that an
actual, nonlimiting impairment substantially limits one or more major life
activities.” Sutton, 527 U.S. at 489. However, both of these showings require
1
Kemp alternatively argues that, even assuming that Sutton governs his claim, Sutton
does not “exempt from liability” an employer that bans the use of a mitigating device in
determining whether an employee meets occupation requirements. We disagree. The ADA
prohibits discrimination only against those individuals who can show that they are “disabled,”
as that term is defined in the ADA. See Rogers, 87 F.3d at 758. Where Kemp has not met this
“threshold requirement,” the ADA provides no basis for liability for actions taken by his
employer. See id. (explaining that the ADA prohibits discrimination “against a qualified
individual with a disability” as that term is defined in the ADA, and that the establishment
of such a disability is a prerequisite for relief (citation and internal quotation marks omitted)).
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that the plaintiff demonstrate that the employer actually “entertain[ed]
misperceptions about the individual—it must believe either that one has a
substantially limiting impairment that one does not have or that one has a
substantially limiting impairment when, in fact, the impairment is not so
limiting.” Id. Kemp urges us to find that the district court’s grant of summary
judgment was improper because AKAL and USMS held broad misconceptions
regarding his limitations in the major life activities of hearing and working, but
we agree that he has produced no evidence in support of this claim.
We first consider Kemp’s argument that he produced evidence that AKAL
and USMS regarded him to be substantially limited in the life activity of
hearing, and that he was ultimately terminated based on this perception. To
establish that he was fired as a result of a perceived “substantial limitation,”
Kemp was required to produce evidence that his employer regarded him as being
“[u]nable to perform a major life activity that the average person in the general
population can perform; or [s]ignificantly restricted as to the condition, manner,
or duration under which an individual can perform a particular major life
activity as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major life
activity.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195–96 (2002)
(citation and internal quotation marks omitted; modifications in original),
superseded by statute, ADA Amendments Act of 2008, Pub. L. No. 110-325, 122
Stat. 3553.
Nothing in the record supports the notion that AKAL believed Kemp to be
significantly restricted in his ability to hear when he was wearing his hearing
aids, and the undisputed evidence suggests quite the opposite. AKAL was aware
of his hearing impairment and his use of hearing aids when it initially offered
him the CSO position. Even after he failed the unaided hearing test, AKAL
continued to consider him fully capable of hearing on a functional basis, as it
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wrote to USMS on his behalf to request a reconsideration of USMS’s
disqualification decision. Kemp likewise has failed to produce evidence
suggesting that USMS considered him to be substantially limited in his ability
to hear when he was wearing his hearing aids. He claims that USMS’s
requirement for unaided hearing is itself evidence of a perception that persons
who require the use of hearing aids are “substantially limited” in their ability to
hear, but we find that this requirement alone does not create a fact issue as to
whether USMS perceived him as substantially limited in the life activity of
hearing. Similarly, the Ninth Circuit has considered whether a “disqualification
under USMS’s hearing standards” constitutes evidence that USMS regarded a
hearing-impaired CSO as substantially limited in her ability to hear and reached
the same conclusion: a CSO’s “failure to meet the USMS hearing standards does
not raise a genuine issue of material fact that the USMS regarded her as
disabled.” Walton v. U.S. Marshals Serv., 492 F.3d 998, 1007 (9th Cir. 2007).
Accordingly, we find no genuine issue of material fact regarding whether Kemp
is substantially limited in the life activity of hearing.
His claim that AKAL and USMS regarded him as substantially limited in
the major life activity of working fares no better. The Supreme Court has held
that “[w]hen the major life activity under consideration is that of working, the
statutory phrase ‘substantially limits’ requires, at a minimum, that [Kemp]
allege [he is] unable to work in a broad class of jobs.” Sutton, 527 U.S. at 491.
The breadth of the exclusion is significant, as the ADA endeavored to leave
employers
free to decide that physical characteristics or medical conditions
that do not rise to the level of an impairment—such as one’s height,
build, or singing voice—are preferable to others, just as it is free to
decide that some limiting, but not substantially limiting,
impairments make individuals less than ideally suited for a job.
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Id. at 490–91. Thus, to prevail, Kemp must prove that he was regarded as
“significantly restricted in the ability to perform either a class of jobs or a broad
range of jobs in various classes as compared to the average person having
comparable training skills and abilities.” Id. at 491 (emphasis added).
Kemp has failed to submit evidence establishing that either AKAL or
USMS believed him to be limited to such a great extent. As mentioned above,
the record reflects that AKAL did not even consider him to be substantially
limited in his ability to work as a CSO, as it urged USMS to reinstate him even
after USMS determined that he could not meet the unaided hearing
requirement.
Nor is there any evidence suggesting that USMS regarded him as being
significantly restricted in his ability to perform other government and law
enforcement jobs. Kemp posits that he submitted competent summary judgment
evidence by showing that USMS utilizes an unaided hearing requirement—a
requirement that he alleges eliminates him from eligibility for all government
law enforcement jobs, not just the job of CSO, thereby substantially limiting him
in his major life activity of working. USMS determined only that his unaided
hearing deficiency disqualified him from the position of CSO, but “[t]he inability
to perform a single, particular job does not constitute a substantial limitation in
the major life activity of working.” Dutcher v. Ingalls Shipbuilding, 53 F.3d
723, 727 (5th Cir. 1995) (citation omitted). We find no basis to extrapolate the
broader conclusion that he was incapable of performing any other law
enforcement or government job from this single requirement, which is relevant
only to whether a candidate is medically qualified to perform the functions of a
CSO.2 As Kemp provided no evidence raising genuine issue of material fact
2
We disagree with Kemp’s assertion that our decision in Rodriguez v. ConAgra Grocery
Products Co., requires us to hold that the unaided hearing requirement necessarily means
Kemp’s employer considered hm to be incapable of working in other law enforcement or
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regarding whether AKAL or USMS believed him to be significantly limited in his
ability to work a broad class of jobs, not simply in his ability to “perform the
tasks associated with [his] specific job,” he cannot establish “disability” under 42
U.S.C. §12102(1)(C). Toyota Motor Mfg., 534 U.S. at 200–01.
Accordingly, we hold that Kemp has failed to produce evidence of “a
physical or mental impairment that substantially limits one or more [of his]
major life activities” or that he is “regarded as having such an impairment,” and
we affirm the district court’s grant of summary judgment in favor of the
appellees. See 42 U.S.C. § 12102(1)(A), (C). AFFIRMED.
government jobs. See Rodriguez, 436 F.3d 468 (5th Cir. 2006). In Rodriguez, we held that an
employer regarded the plaintiff as significantly limited in the life activity of working where
the employer found that the plaintiff’s diabetes prohibited him from working a low-skill
position. We explained that by considering the diabetic plaintiff to be “unfit for the entry-level
Production Utility position—which is a job that. . . requires only the most basic skills and
abilities, virtually any able-bodied person could perform it—it follows inescapably that
ConAgra viewed Rodriguez as unfit to perform a wide range of jobs.” Rodriguez, 436 F.3d at
477. Rodriguez is distinguishable, as the CSO position requires a significantly greater degree
of skill and expertise than the entry level Production Utility position, and a determination that
Kemp was unfit for the CSO position does not translate into a conclusion that he is unfit for
a broad class of jobs.
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