Opinion
Case Nos. 1:00cv870, 1:00cv871
January 14, 2002
Owen M. Mathieson, 1007 N La Venture Rd. Mount Vernon, WA 98273, [PRO SE].
Peter A. Smit, Varnum, Riddering, Schmidt Howlett, LLP., 333 Bridge St., NW P.O. Box 352 Grand Rapids, MI 49501-0352, for Defendant American Electric Power Bechtel Corp.
Stephanie J. Clifford, Bechtel Corp. Clark Hill, PC., 500 Woodward Ave., Ste. 3500 Detroit, MI 48226, Co-Counsel for defendant.
REPORT AND RECOMMENDATION
The captioned cases, consolidated for purposes of pretrial proceedings, are brought pursuant to the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. Plaintiff's pro se complaints are brought against his former employer, Bechtel Construction Company, and American Electric Power Company, owner and operator of the Cook Nuclear Power Plant. Plaintiff, who was hired by Bechtel to work as a boilermaker at the Cook Nuclear Plant, was discharged from employment after he was denied unescorted access to the power plant on medical grounds.
Presently pending before the court are a motion for summary judgment by American Electric Power Company (docket # 25) and a motion to dismiss by defendant Bechtel Construction Company (docket # 21). Because Bechtel's motion relied on matters outside the pleadings, the court elected to treat it as a motion for summary judgment and so notified all parties by order entered September 20, 2001 (docket # 28). Plaintiff has filed a response to the motions (docket # 31), accompanied by medical and business records documenting the course of events leading up to his termination from employment. Upon review of the record, I conclude that both defendants are entitled to prevail as a matter of law.
Proposed Findings of Undisputed Facts
The following facts are not subject to dispute. Defendant American Electric Power Company (AEP) owns and operates the Cook Nuclear Power Plant through its wholly owned subsidiary, Indiana-Michigan Power Company. Defendant Bechtel Construction Company provides construction services to the Cook Nuclear Power Plant under contract. Bechtel hired plaintiff to work at the Cook Nuclear Power Plant as a boilermaker on December 6, 1999.
As the operator of a nuclear power plant, AEP is licensed and extensively regulated by the Nuclear Regulatory Commission. Regulations of the NRC require that licensees control access to nuclear plants through access authorization programs and "fitness for duty" programs. 10 C.F.R. § 26.2, 73.56. According to the regulations, the fitness-for-duty program must, among other goals, provide "reasonable assurance" that nuclear power plant personnel are "not under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties." 10 C.F.R. § 26.10(a). Licensees are further required to establish and maintain an "access authorization program" granting individuals "unescorted access to protected and vital areas" within the nuclear power plant. The access authorization program includes employees of contractors or vendors. 10 C.F.R. § 73.56(a)(4), (b)(1). Finally, the regulations require that a licensee deny unrestricted access to any individual who does not comply with the requirements of these programs. 10 C.F.R. § 26.27.
It is undisputed that plaintiff was hired by defendant Bechtel on December 6, 1999, to work at the Cook Nuclear Power Plant. Plaintiff takes the medications Valium and Marinol, prescribed to him by a doctor to counteract muscle spasms that plaintiff experiences as the result of the amputation of his left leg. Plaintiff underwent medical review by David W. Hills, M.D., in connection with his application to defendant AEP for unescorted access to the Cook Nuclear Power Plant. By letter dated December 10, 1999, Dr. Hills informed Bechtel and plaintiff that plaintiff was not cleared for unescorted access to the plant "due to the medication you are currently using." Dr. Hills' letter relied upon plaintiff's use of the drug Marinol, citing the manufacturer's precaution that users of Marinol "should not drive, operate complex machinery, or engage in activity requiring sound judgment and unimpaired coordination due to the drug's profound effects on mental processes." (Letter of 12/10/99, attached to Plaintiff's Response, docket # 31). By letter dated December 13, 1999, K. E. Burkett, access control supervisor of AEP, informed plaintiff that he was not eligible for unescorted access to the nuclear plant, relying upon Dr. Hills' assessment. (Letter of 12/13/99, attached to docket # 31). By notice dated December 13, 1999, defendant Bechtel terminated plaintiff's employment, for his failure to qualify for unescorted access to the nuclear plant. (Termination Notice dated 12/13/99, attached to docket # 31).
Plaintiff initiated administrative proceedings with the EEOC by filing a charge dated June 27, 2000. The charge alleged that his termination from employment by Bechtel Corporation on the basis of his taking prescription medication violated the ADA. (Ex. B to docket # 21). On August 31, 2000, the EEOC issued right-to-sue letters directed to American Electric Power and Bechtel Corporation, finding that the charge was not sustained by the evidence. Plaintiff initiated these actions on November 27, 2000.
Discussion
The ADA requires that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Included within the definition of the term "discriminate" is "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee." 42 U.S.C. § 12112(b)(5)(A); see Toyota Motor Mfg., Ky., Inc. v. Williams, No. 00-1089, 2002 WL 15402, at *7 (U.S. Jan. 8, 2002). The motions for summary judgment contend that plaintiff does not satisfy the requirement that he was "an otherwise qualified individual" within the meaning of the statute. The ADA defines the term "qualified individual with a disability" to mean "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).
In the present case, it is undisputed that plaintiff suffered from a disability. It is also undisputed that the sole reason that he was discharged from employment by Bechtel Corporation is that defendant AEP denied plaintiff unescorted access to the nuclear power plant. It is further undisputed that AEP's sole reason for denying plaintiff unescorted access was his failure to meet the requirements of the fitness-for-duty program dictated by the regulations of the Nuclear Regulatory Commission.
The regulations of the NRC require its licensees to maintain a fitness-for-duty program which excludes persons who are "under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties." 10 C.F.R. § 26.10(a). A concomitant goal of the regulations is to achieve a "drug-free workplace and a workplace free of the effects of such substance." 10 C.F.R. § 26.10(c). It is beyond dispute that plaintiff was taking the prescription drug Marinol and that the use of Marinol is counterindicated for any person using complex machinery or engaging in activity requiring sound judgment or unimpaired coordination, because of the drug's profound effects on the mental processes. Although plaintiff contends that Marinol did not produce these side effects in him, plaintiff has produced no evidence indicating that the drug Marinol does not have these effects on human beings.
Consequently, it is beyond genuine issue that plaintiff did not meet the fitness-for-duty program required by the NRC and implemented by defendant AEP. The sole issue in this case, therefore, is whether AEP's enforcement of federal regulations, and Bechtel's resulting termination of plaintiff for his failure to meet the requirements of the program, can be deemed a violation of the ADA.
This issue was conclusively answered by the United States Supreme Court in Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999). Plaintiff in Albertsons was a truck driver who was fired by his employer for failing to meet the basic Department of Transportation vision standards. The question before the Supreme Court was whether, in light of plaintiff's undisputed failure to meet the administrative standards, he was nevertheless a "qualified" individual with a disability within the meaning of 42 U.S.C. § 12112(a). The court framed the issue as follows: "If Albertsons [the employer] was entitled to enforce that standard as defining an `essential job function of the employment position,' see 42 U.S.C. § 12111(8), that is the end of the case, for Kirkingburg concededly could not satisfy it." 527 U.S. at 567. The Court held that legally defined job qualifications constitute essential functions under the ADA and that plaintiff was therefore not a qualified individual. 527 U.S. at 570-75. The Sixth Circuit had come to the same conclusion one year earlier in Brickers v. Cleveland Bd. of Educ., 145 F.3d 846 (6th Cir. 1998). In Brickers, a school bus driver sued under the ADA after her termination from employment. The defendant school board relied upon plaintiff's admitted inability to meet the lifting requirements of Ohio law. The Sixth Circuit held that plaintiff's inability to meet legally required criteria rendered him unqualified under the ADA. "Therefore, a legally-defined job qualification is by its very nature an essential function under section 12111(8), irrespective of whether the employer adheres to that requirement in all cases." 145 F.3d at 850. The court went on to hold that the ADA "does not demand that an employer exempt a disabled employee from an essential function of the job as an accommodation. What [plaintiff] requests is not an accommodation, but rather an exemption and, as such, does not survive the threshold determination of whether she is a `qualified individual with a disability.'" Id.
The present case is governed by Albertsons and Brickers. AEP did not choose to implement a fitness-for-duty program, nor did it choose the components thereof. Both the existence of the program and its component requiring that employees be substance-free were dictated by the Nuclear Regulatory Commission regulations. Plaintiff concededly did not satisfy the requirements of the fitness-for-duty program, because of his use of the prescription drug Marinol. An employee's inability to satisfy a legally dictated fitness-for-duty program is "by its very nature an essential function under section 12111(8)." Brickers, 145 F.3d at 850. Plaintiff did not meet this qualification, and neither AEP nor Bechtel was at liberty to ignore it.
As the Sixth Circuit has noted, any contrary result would force upon an employer the Hobson's choice of ignoring the requirements of a federal regulation or violating the ADA. Id. Consistent with the result in Brickers, other courts have held that the inability to meet the requirements of federal regulations concerning access to regulated nuclear power plants requires a finding that an ADA plaintiff is not a "qualified individual." See, e.g., McCoy v. Pennsylvania Power Light Co., 933 F. Supp. 438 (M.D. Penn. 1996); McDaniel v. AlliedSignal, Inc., 896 F. Supp. 1482 (W.D.Mo. 1995).
Plaintiff's only argument in opposition to this conclusion is that the EEOC found probable cause to support an ADA violation in a previous case brought by plaintiff under similar facts against Commonwealth Edison Co., which denied plaintiff unrestricted access to its nuclear power plant in Illinois. The determination of the Chicago district office of the EEOC (attached to docket # 31) sets forth no legal or factual analysis to support the bare conclusion of a violation of the statute. Determinations of the district office of the EEOC are not binding upon any court. See Astoria Fed. Sav. Loan Ass'n v. Solimino, 501 U.S. 104, 112-13 (1991); G.V.V. RAO v. County of Fairfax, Va., 108 F.3d 42, 45 (4th Cir. 1997). Furthermore, this decision appears to be directly contrary to Supreme Court and Sixth Circuit precedent. The EEOC determination does not explain how either the power plant or the contractor/employer would be at liberty to accommodate plaintiff by ignoring the requirements of NRC regulations. The determination of the EEOC district office is entitled to no weight in this case.
I therefore conclude that plaintiff was not a qualified individual with a disability within the meaning of the ADA. Both defendants are entitled to summary judgment on this basis. In addition, defendant AEP raises the independent defense that it was not plaintiff's employer under the ADA. The definition of a qualified individual with a disability clearly requires an employment relationship. See Johnson v. City of Saline, 151 F.3d 564, 567-68 (6th Cir. 1998). Independent contractors are not covered by the Act. Id. at 568-69. Even less are employees of independent contractors. Plaintiff has provided no evidence that he was ever employed by defendant AEP. All of the documentary evidence presented by plaintiff (attachments to docket # 31) demonstrates that he was employed by defendant Bechtel. AEP is therefore entitled to summary judgment on this independent ground.
Recommended Disposition
For the foregoing reasons, I recommend that the motions of defendants Bechtel Corporation and American Electric Power (docket #'s 21, 25) be granted.