RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0339p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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VELMA SUE BATES; CLAUDIA BIRDYSHAW;
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WILLARENE FISHER; MARK LONG; JON
TOUNGETT; CAROLYN WADE; RICHARD -
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No. 09-6351
WHITE,
Plaintiffs-Appellees, ,>
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v.
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Defendant-Appellant. -
DURA AUTOMOTIVE SYSTEMS, INC.,
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Appeal from the United States District Court
for the Middle District of Tennessee at Columbia.
No. 08-00029—Aleta Arthur Trauger, District Judge.
Argued: October 19, 2010
Decided and Filed: November 3, 2010
Before: MARTIN and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.*
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COUNSEL
ARGUED: Robert E. Boston, WALLER LANSDEN DORTCH & DAVIS, LLP,
Nashville, Tennessee, for Appellant. John A. Beam, III, EQUITUS LAW ALLIANCE,
PLLC, Nashville, Tennessee, for Appellees. ON BRIEF: Robert E. Boston, Andrew
S. Naylor, WALLER LANSDEN DORTCH & DAVIS, LLP, Nashville, Tennessee, Ben
Boston, BOSTON, HOLT, SOCKWELL & DURHAM, PLLC, Lawrenceburg,
Tennessee, for Appellant. John A. Beam, III, Kristin J. Fecteau, EQUITUS LAW
ALLIANCE, PLLC, Nashville, Tennessee, for Appellees.
*
The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 2
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs-appellees are seven former
employees of Dura Automotive Systems who are challenging Dura’s drug testing policy
under the Americans with Disabilities Act. In resolving the parties’ cross motions for
summary judgment, the district court held that an individual need not be disabled to
pursue a claim under section 12112(b)(6) of the Act. The district court certified this
issue for interlocutory appeal, which a panel of this Court granted. We now REVERSE
the district court’s decision and hold that an individual must be disabled to pursue a
claim under 42 U.S.C. § 12112(b)(6).
I.
As this interlocutory appeal presents a purely legal issue, we will only briefly
summarize the relevant facts to provide context. The Employees are seven individuals
who worked at Dura’s Lawrenceburg, Tennessee manufacturing facility. Dura
manufactures glass window units for cars, trucks, and busses, and the Employees
performed a wide range of jobs at Dura including driving tow motors, assembling
windows, painting primer on frames, and trimming and water testing windows.
Dura grew concerned that the Lawrenceburg facility had a higher rate of
workplace accidents than comparable plants and suspected that this might be caused by
either legal or illegal drug use. To improve safety, Dura implemented a policy that
prohibited employees from using legal prescription drugs if such use adversely affected
safety, company property or job performance. Dura worked with an independent drug
testing company to set up a procedure to screen its employees for substances it believed
could be dangerous in the workplace. The resulting policy screened employees for
twelve substances including those commonly found in legal prescription drugs such as
Xanax, Lortab, and Oxycodone.
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 3
Each of the Employees tested positive for one of the twelve prohibited
substances. In each case, the individual had a legal prescription for a drug containing
that substance. Dura gave each of the Employees an opportunity to transition to drugs
without the prohibited substances, but refused to consider letters from doctors stating
that the Employees’ work performance would not be affected by the drugs. Eventually,
Dura terminated the Employees when they continued taking medication with the
prohibited substances.
The Employees sued, claiming that Dura’s drug testing violates the Americans
with Disabilities Act. In resolving the parties’ cross motions for summary judgment, the
district court concluded that six of the Employees are not disabled as a matter of law.1
The district court held that the Employees’ claim that Dura’s actions constituted an
impermissible medical examination is best analyzed under section 12112(b)(6). The
district court denied the Employees’ summary judgment motion, finding that there was
a disputed issue of material fact as to whether Dura’s justification for the drug testing
falls within the exception in the Act for testing that is job related and consistent with
business necessity.
Dura then moved for clarification, asking the district court to determine whether
individuals must be disabled in order to pursue claims under section 12112(b)(6). The
district court affirmed its initial decision that individuals do not need to be disabled to
assert claims under section 12112(b)(6), but, recognizing that there is a difference of
opinion on this question, certified this issue for interlocutory appeal. A panel of this
Court granted the petition for leave to appeal on the issue of whether an individual must
be disabled to pursue a claim under section 12112(b)(6) of the Act.
1
The district court held that there is a question of fact as to whether one of the Employees,
Willarene Fisher, qualifies as disabled because of a “record of disability.” However, because this appeal
only involves issues relating to a non-disabled individual’s ability to challenge Dura’s policy, this opinion
assumes that none of the Employees are disabled, and does not separately analyze Fisher’s claims.
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 4
II.
A. Standard of Review
Because this is an interlocutory appeal, we cannot review the district court’s
findings of fact and must consider only pure questions of law. Nw. Ohio Adm’rs, Inc.
v. Walcher & Fox, Inc., 270 F.3d 1018, 1023 (6th Cir. 2001). We review the district
court’s conclusions of law de novo. Id.
B. The Text of Section 12112
Section 12112 of the Act prohibits discrimination against a “qualified individual
with a disability because of the disability.” 42 U.S.C. § 12112(a) (2006).2 In pertinent
part, this section provides:
(a) General Rule
No covered entity shall discriminate against a
qualified individual with a disability because of the
disability of such individual . . .
(b) Construction
As used in subsection (a) of this section, the term
“discriminate” includes . . .
...
(6) using qualification standards, employment tests or
other selection criteria that screen out or tend to screen
out an individual with a disability or a class of individuals
with disabilities unless the standard, test or other
selection criteria, as used by the covered entity, is shown
to be job-related for the position in question and is
consistent with business necessity . . . .
Id. § 12112.
Although non-disabled individuals may bring claims under some provisions of
the Act, the plain text of subsection (b)(6) only covers individuals with disabilities. The
text of subsection (a) and (b)(6) specifically refers to “qualified individual[s] with
disabilit[ies],” and not, as discussed below, a broader class of individuals such as
2
The 2008 amendments to the Act are inapplicable to this case as we have held that they do not
apply retroactively. Milholland v. Sumner Cnty. Bd. of Educ., 569 F.3d 562, 565 (6th Cir. 2009).
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 5
“employees.” See id. § 12112(a), (b)(6). We endeavor to “read statutes and regulations
with an eye to their straightforward and commonsense meanings.” Henry Ford Health
Sys. v. Shalala, 233 F.3d 907, 910 (6th Cir. 2000). “When we can discern an
unambiguous and plain meaning from the language of a statute, our task is at an end.”
Bartlik v. U.S. Dep’t of Labor, 62 F.3d 163, 166 (6th Cir. 1995). A straightforward
reading of this statute compels the conclusion that only a “qualified individual with a
disability” is protected from the prohibited form of discrimination described in
subsection (b)(6)—the use of qualification standards and other tests that tend to screen
out disabled individuals. This interpretation is consistent with the Fifth Circuit’s holding
that individuals who are not disabled cannot pursue claims under section 12112(b).
Fuzzy v. S&B Eng’rs & Constructors, Ltd., 332 F.3d 301, 303 (5th Cir. 2003).
Although the Employees argue that subsection (b)(6) should be read in
conjunction with subsection (d)(4), we do not believe that is necessary in light of the
clarity of subsection (b)(6). As the Supreme Court has noted, “when a statute speaks
with clarity to an issue judicial inquiry into the statute’s meaning, in all but the most
extraordinary circumstance, is finished.” Estate of Cowart v. Nicklos Drilling Co., 505
U.S. 469, 475 (1992). “The plain meaning of legislation should be conclusive, except
in rare cases in which the literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters.” United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 242 (1989) (internal quotation omitted). Although other
sections of the Act apply to non-disabled individuals, the Act’s primary purpose is to
prevent discrimination against disabled individuals. Therefore, reading the plain text of
section 12112(b)(6) to only cover disabled individuals is not an absurd construction or
inconsistent with the intent of the statute.
Additionally, requiring that an individual be disabled to pursue claims under
section 12112(b)(6) gives effect to Congress’s choice of language. When Congress uses
different language in different parts of the same act, we endeavor to give effect to that
different language. See Rodriguez v. United States, 480 U.S. 522, 525 (1987). In
contrast to the language used in subsection (d)(4), subsection (b) does not use the word
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 6
“employee,” but the narrower term, “qualified individual with a disability.” See
42 U.S.C. § 12112(b), (d)(4)(A).3 This suggests that Congress intended subsection
(b)(6) to be more limited than subsection (d)(4) and not broadly cover all employees,
which may include non-disabled individuals. Although we do not decide the issue at this
time because it is not part of the certified question, we note that several courts have held
that non-disabled individuals can pursue claims under section 12112(d)(4). E.g.,
Cossette v. Minn. Power & Light, 188 F.3d 964, 969-70 (8th Cir. 1999); Fredenburg v.
Contra Costa Cnty. Dep’t of Health Servs., 172 F.3d 1176, 1182 (9th Cir. 1999); Griffin
v. Steeltek, Inc., 160 F.3d 591, 594 (10th Cir. 1998); Wice v. Gen. Motors Corp., No. 07-
10662, 2008 WL 5235996, at *2 (E.D. Mich. Dec. 15, 2008); see also Boies v. Capital
Area Cmty. Servs., Inc., 188 F.3d 506, 1999 WL 618085, at *5 (6th Cir. 1999)
(unpublished table decision) (declining to determine whether an individual must have
a disability to pursue a claim under section 12112(d)). Interpreting subsection (b)(6) as
being limited to individuals with disabilities better gives effect to Congress’s decision
not to use the word “employees” in this subsection. Therefore, because the plain text of
the statute requires that an individual bringing such a claim be disabled, and this
interpretation is not “demonstrably at odds” with Congress’s intent, the plain meaning
controls.
III.
The district court also held that the Employees had not asserted claims
cognizable under section 12112(d)(4) of the Act, challenging Dura’s drug testing policy
as an improper “medical examination or inquiry.” The Employees challenge this ruling
in their appellate brief. This ruling, however, was not certified for interlocutory appeal.
3
In pertinent part, subsection (d)(4) provides:
A covered entity shall not require a medical examination and shall
not make inquiries of an employee as to whether such employee is an
individual with a disability or as to the nature or severity of the
disability, unless such examination or inquiry is shown to be
job-related and consistent with business necessity.
42 U.S.C. § 12112(d)(4)(A) (emphasis added).
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 7
The doctrine of pendent appellate jurisdiction allows an appellate court, in its
discretion, to exercise jurisdiction over issues that are not independently appealable, but
are “inextricably intertwined” with matters over which the appellate court properly and
independently has jurisdiction. Chambers v. Ohio Dep’t of Human Servs., 145 F.3d 793,
797 (6th Cir. 1998). However, the “inextricably intertwined” requirement is not meant
to be loosely applied as a matter of discretion. Id. Rather, the “inextricably intertwined”
requirement is satisfied only if the resolution of the properly appealable issue
“necessarily and unavoidably” decides the non-appealable issue. Wedgewood Ltd.
P’ship I v. Twp. of Liberty, 610 F.3d 340, 348 (6th Cir. 2010). “A pendent appellate
claim can be regarded as ‘inextricably intertwined’ with a properly reviewable claim
only if the pendent claim is ‘coterminous with, or subsumed in, the claim before the
court on interlocutory appeal.’” O’Bryan v. Holy See, 556 F.3d 361, 378 n.7 (6th Cir.
2009) (quoting Chambers, 145 F.3d at 797).
As the Employees have not demonstrated that the district court’s ruling on their
putative claims under section 12112(d)(4) is inextricably intertwined with the certified
issue, we decline to exercise pendent appellate jurisdiction and express no opinion as to
that part of the district court’s decision.
IV.
For the reasons set forth above, we REVERSE the district court’s decision that
non-disabled individuals can pursue claims under section 12112(b)(6) of the Act. On
remand, the district court shall dismiss the claims of the non-disabled Plaintiffs under
section 12112(b)(6) of the Act.