Summary
finding that satisfying NRC FFD program is an essential function of plaintiff's job and granting summary judgment to defendants on plaintiff's ADA termination claim when doctor failed to clear him for UAA
Summary of this case from Lute v. Dominion Nuclear Conn., Inc.Opinion
Case No. 1:00-cv-870, Case No. 1:00-cv-871
February 20, 2002
OPINION APPROVING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se, filed suit, pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., against his former employer, Bechtel Construction Company ("Bechtel"), and American Electric Power ("AEP"), owner and operator of the Cook Nuclear Plant. Defendant Bechtel hired plaintiff as a boilermaker at the Cook Nuclear Plant on December 6, 1999. On December 13, 1999, Bechtel terminated plaintiff's employment. Bechtel did so based on the results of a medical review conducted by David W. Hills, M.D., who concluded that Marinol, a medication plaintiff takes to counteract spasms in his amputated left leg, rendered him ineligible for unescorted access to the nuclear plant.
These cases were consolidated for purposes of pretrial proceedings. See Case No. 1:00-cv-870, Dkt. #12. All docket entries in this opinion are listed under Case No. 1:00-cv-870.
Presently pending before the Court are defendant AEP's motion for summary judgment (dkt. #25) and defendant Bechtel's motion to dismiss (dkt.#21). Magistrate Judge Joseph G. Scoville submitted a report and recommendation on January 14, 2002, recommending that both AEP's and Bechtel's motions be granted. Plaintiff has filed timely objections to the report and recommendation. See dkt. #38. Defendant AEP has filed a brief in support of the Magistrate Judge's report and recommendation. See dkt. #39.
In his September 20, 2001, order, Magistrate Judge Scoville notified the parties that he construed Bechtel's motion to dismiss as a motion for summary judgment because Bechtel supported its motion with materials outside the pleadings. See dkt. #28.
In accordance with 28 U.S.C. § 636(b)(1), the Court has performed de novo review of those portions of the report and recommendation to which objection has been made. Upon thorough review of the record, the Court finds plaintiff's objections to be without merit.
Plaintiff raises several objections to the report and recommendation, none of which challenge the Magistrate Judge's legal analysis or conclusions. First, plaintiff contends that the psychologist who examined him for AEP and Bechtel "must have understood that the Marinol that [he] took to stop the spasm in the stump of [his] amputated leg is not contraindicated for the employment that [he] sought." Dkt. #38 at 1-2. Second, plaintiff states that he "would venture to speculate" that many other employees at the nuclear plant also took medications that had precautions, similar to those indicated for Marinol, about operating machinery or engaging in hazardous activity. Id. Finally, plaintiff claims that Bechtel's real concern was that the Marinol he was taking might result in a false positive for marijuana on a drug test. Plaintiff contends that defendants wanted to avoid the inconvenience associated with having to deal with false positive results on a drug test. Id.
Plaintiff's objections, however, are mere speculation with no supporting evidence. "In opposing a properly supported motion for summary judgment, the nonmoving party must set forth sufficient specific evidence to permit a fair-minded jury to return a verdict in its favor." Mount v. United States Postal Serv., 79 F.3d 531, 533 (6th Cir. 1996) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). As the Magistrate Judge noted in his report and recommendation, "the use of Marinol is counterindicated for any person using complex machinery or engaging in activity requiring sound judgment or unimpaired coordination." Dkt. #36 at 5. While plaintiff claims that Marinol does not affect him in this way, he has offered no evidence that Marinol does not have these effects on human beings. See id. Moreover, plaintiff's speculations about (1) the examining psychologist's knowledge of Marinol's effects, (2) the use of medications with similar indications by other nuclear plant employees, and (3) his employer's "real concern" are nothing more than conjecture; they are not evidence. See Mount, 79 F.3d at 534 (affirming trial court's order granting summary judgment, noting that "[p]laintiff [had] offered nothing more than unsubstantiated speculation" in opposing defendants' motion for summary judgment); Mulazim v. Michigan Dep't of Corrections, No. 93-2489, 1994 U.S. App. LEXIS 27855, at **6-7 (6th Cir. Oct. 3, 1994) (affirming trial court's order granting summary judgment to defendants, noting that in his response to defendants' motion for summary judgment plaintiff had "offered nothing but speculation and hypotheses in support of his complaint").
Plaintiff states that he has provided documentation from his doctor of the fact that Marinol does not affect his ability to operate machinery and engage in hazardous activities. He includes in the materials attached to his response to defendants' motions, see dkt. #31, a letter dated 1/10/01 from Paul C. Creelman, M.D. to Theresa Roache. The last line of the letter, which is handwritten, unlike the typewritten body of the letter, states that plaintiff "has no adverse side effects" from taking Marinol. Dr. Creelman's letter, however, does not state that plaintiff can operate heavy machinery or engage in hazardous activities, such as working at a nuclear power plant. In fact, there is no indication that Dr. Creelman has any knowledge of the tasks required of a boilermaker at a nuclear power plant, or the effect that taking Marinol would have on plaintiff's ability to work in such a setting.
Plaintiff also objects to the report and recommendation, claiming that he "was willing to stop taking Marinol to get the job [but] was not given that opportunity." Dkt. #38 at 2. While plaintiff does not elaborate on this statement in his objections, it appears that he is contending that while he suffers from a disability — an amputated limb — if he stopped taking Marinol, he would be qualified to perform the essential functions of the job from which he was terminated.
From the Court's review of the entire record, however, there is no evidence that plaintiff ever notified defendants of his willingness or ability to stop taking Marinol. For example, nothing in plaintiff's response to defendants' motions indicates that plaintiff was willing, or able, to discontinue his medication, or that plaintiff informed defendants of his willingness, or ability, to do so. See dkt. #31. The parties also have filed a joint status report, which included a brief statement of the case. See dkt. #15, at 2. Nowhere in the statement of the case does plaintiff mention that he informed defendants that he was willing and able to discontinue taking Marinol. See id. At the Rule 16 status conference, Magistrate Judge Scoville asked plaintiff whether he had read and understood the joint status report before signing it, and plaintiff responded that he had done so. See Transcript of Rule 16 Status Conference, Aug. 1, 2001, at 8-9 (dkt. #18).
Thus, the record is devoid of any evidence that plaintiff made defendants aware, either before or after drug testing, that he would and could discontinue his medication. As the Magistrate Judge noted in his report and recommendation, it is undisputed that plaintiff was denied unescorted access to the nuclear power plant, based on his use of Marinol, because he failed to meet the requirements for fitness for duty dictated by the Nuclear Regulatory Commission. See 10 C.F.R. § 26.10(a) (excluding from fitness for duty 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"). Defendants cannot be held liable for violating the ADA based on information that plaintiff failed to provide, which may have affected the determination of plaintiff's fitness for duty at the Cook Nuclear Plant. See Hinson v. Tecumseh Prods. Co., No. 99-6091, 2000 U.S. App. LEXIS 26778, at *9 (6th Cir. Oct. 17, 2000) (holding that absent a request by an employee for an accommodation, the district court correctly found that plaintiff had failed to create an issue of fact as to whether her employer had violated the ADA); see BARBARA LINDEMANN AND PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 313 (3d ed. 1996) (citing to both Senate and House Reports for proposition that the employer's duty to accommodate under ADA is generally triggered by the job applicant's or employee's request).
Therefore, the Court approves and adopts the report and recommendation of Magistrate Judge Scoville, as supplemented by this opinion, as the opinion of the Court. The Court grants both defendant AEP's motion for summary judgment (dkt. #25) and defendant Bechtel's motion to dismiss (dkt.#21).
An order consistent with this opinion shall enter forthwith.
ORDER APPROVING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
In accordance with the Court's opinion of even date,
IT IS ORDERED that as supplemented by this Court's opinion of even date, the report and recommendation of Magistrate Judge Joseph Scoville is APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that defendant American Electric Power's motion for summary judgment (dkt. #25) and defendant Bechtel Construction Company's motion to dismiss (dkt.#21) are GRANTED.
IT IS SO ORDERED.