Ronald Shell v. Burlington Northern Santa Fe R

                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 19-1030
RONALD SHELL,
                                                  Plaintiff-Appellee,
                                 v.

BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY,
                                  Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
            Northern District of Illinois, Eastern Division.
        No. 1:15-cv-11040 — Sharon Johnson Coleman, Judge.
                     ____________________

  ARGUED SEPTEMBER 26, 2019 — DECIDED OCTOBER 29, 2019
                ____________________

   Before BAUER, MANION, and SCUDDER, Circuit Judges.
    SCUDDER, Circuit Judge. Burlington Northern Sante Fe Rail-
road Company refused to hire Ronald Shell solely because it
believed his obesity presented an unacceptably high risk that
he would develop certain medical conditions that would sud-
denly incapacitate him on the job. Shell sued BNSF under the
Americans with Disabilities Act, alleging that BNSF discrimi-
nated against him based on a disability. BNSF moved for sum-
mary judgment and argued that the ADA’s definition of
2                                                  No. 19-1030

“disability” is not met where an employer regards an appli-
cant as not presently having a disability but at high risk of
developing one. Concluding that the ADA does reach dis-
crimination based on a future impairment, the district court
denied BNSF’s motion. We come to a contrary conclusion and
reverse.
                               I
    Ronald Shell began working at Chicago’s Corwith Rail
Yard in 1977. The Corwith Yard is a hub at which freight con-
tainers are loaded on and off trains before continuing the jour-
ney to their intended destinations. Shell occupied different
positions over his 33 years at the railyard, including as a
groundsman, driver, and crane operator. All indications are
that Shell was a productive and skilled employee.
    By 2010, Burlington Northern Santa Fe Railway Company
owned Corwith Yard, and Shell worked for the company that
BNSF contracted with to handle its operations. Later that
year, BNSF decided to assume the railyard’s operations itself.
This ended the employment of those like Shell who worked
for the operations company, but BNSF invited those employ-
ees to apply for new positions.
    Shell applied to work as an intermodal equipment opera-
tor. The position required the employee to perform three
roles—that of a groundsman, who climbs on railcars to insert
and remove devices that interlock the containers; a hostler,
who drives the trucks that move trailers; and a crane operator,
who operates the cranes used to load and unload containers.
BNSF classifies this as a “safety-sensitive” position because it
requires working on and around heavy equipment. Upon re-
viewing Shell’s application, BNSF extended a conditional
No. 19-1030                                                    3

offer of employment. One of the conditions was that Shell
pass a medical evaluation.
    Dr. Michael Jarrad, BNSF’s chief medical officer, was re-
sponsible for making the decision. Dr. Jarrad reviewed a med-
ical history questionnaire, in which Shell described his overall
health as very good and did not report any medical condi-
tions. A physical exam then revealed that Shell was 5’ 10’’ tall
and weighed 331 pounds, translating to a body-mass index of
47.5.
    BNSF does not hire applicants for safety-sensitive posi-
tions, like the one Shell was applying for, if their BMI is 40 or
greater. People with BMIs in this range are considered to have
class III obesity. BNSF says that the reasoning behind its BMI
policy is that prospective employees with class III obesity are
at a substantially higher risk of developing certain conditions
like sleep apnea, diabetes, and heart disease and the unpre-
dictable onset of those conditions can result in sudden inca-
pacitation. BNSF believes that someone with class III obesity
could unexpectedly experience a debilitating health episode
and lose consciousness at any moment, including while oper-
ating dangerous equipment—a result that could be disastrous
for everyone in the vicinity.
    Applying BNSF’s BMI policy, Dr. Jarrad decided that Shell
was not medically qualified for the job. BNSF informed Shell
of his disqualification but told him that his application could
be reconsidered if he lost at least 10% of his weight, main-
tained the weight loss for at least six months, and submitted
to further medical evaluations if requested.
    Shell sued BNSF, alleging that its refusal to hire him con-
stituted discrimination on the basis of a perceived disability
4                                                     No. 19-1030

in violation of the ADA. BNSF moved for summary judgment
after the close of discovery. The company argued that Shell
did not have a disability within the meaning of the ADA be-
cause his obesity was not a qualifying impairment and no ev-
idence suggested that BNSF regarded him as presently hav-
ing such an impairment. In the alternative, BNSF asserted that
even if its refusal to hire Shell reflected discrimination, its BMI
policy fit within the ADA’s business-necessity defense.
    The district court denied BNSF’s motion, holding that
Shell’s obesity was not a qualifying impairment but that a dis-
puted factual question remained—whether BNSF regarded
Shell as having the allegedly obesity-related conditions of
sleep apnea, heart disease, and diabetes. The district court
also declined to grant BNSF summary judgment based on the
business-necessity defense because the company had not pro-
vided sufficient evidence to show that class III obesity posed
risks great enough to make the policy necessary.
    At BNSF’s request, the district court certified its order for
interlocutory appeal pursuant to 

(b). In doing
so, the district court defined the question presented as
“whether the ADA’s regarded-as provision encompasses con-
duct motivated by the likelihood that an employee will de-
velop a future disability within the scope of the ADA.” We
accepted the interlocutory appeal and invited the EEOC to file
a friend-of-the-court brief, which the agency then did.
                                II
   The ADA generally prohibits covered employers from dis-
criminating against job applicants “on the basis of disability.”

(a). To prove a violation of this provision, a
plaintiff must show “(1) he is disabled; (2) he is otherwise
No. 19-1030                                                     5

qualified to perform the essential functions of the job with or
without reasonable accommodation; and (3) the adverse job
action was caused by his disability.” Roberts v. City of Chi., 

 (7th Cir. 2016). The statute defines “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 an impairment; or (C) being regarded as hav-
ing such an impairment (as described in paragraph (3)).” 

(1). Paragraph (3), in turn, explains that some-
one is “being regarded as having such an impairment” when
“he or she has been subjected to an action prohibited under
this chapter because of an actual or perceived physical or
mental impairment whether or not the impairment limits or
is perceived to limit a major life activity.” 

 § 12102(3)(A).
    At the time this case was before the district court, Shell had
an argument that his obesity qualifies as a physical impair-
ment and thus a “disability” within the meaning of
§ 12101(1)(A). If that were true, the undisputed facts would
support a prima facie case of discrimination because Shell’s
weight motivated BNSF’s decision not to hire him. But our re-
cent decision in Richardson v. Chicago Transit Authority, 

 (7th Cir. 2019) foreclosed that argument for Shell. We
held that obesity alone is not a physical impairment under the
ADA unless accompanied by evidence that the obesity is
caused by an underlying physiological disorder or condition,

, and Shell presented no such evidence to the district
court. Nor does Shell point to any evidence that BNSF re-
garded his obesity as having a physiological origin.
   Shell instead bases his disability claim on those medical
conditions that BNSF feared he would develop—sleep apnea,
diabetes, and heart disease—which undisputedly qualify as
6                                                     No. 19-1030

impairments under the statute. The wrinkle, though, is that
he did not have those impairments at the time he applied to
work for BNSF, and the company held no perception to the
contrary.
    Shell spends much of his brief arguing that by refusing to
hire him based on the risk of future impairment, BNSF has
treated him as if he has the impairments now. That position
relies on an assumption that even if BNSF knew that Shell did
not currently have the impairments, treating him as if he did
would constitute a disability. That view is mistaken. See Silk
v. Bd. of Trs., Moraine Valley Cmty. Coll., Dist. No. 524, 

 (7th Cir. 2015) (“In satisfying the ‘regarded as’ prong,
Silk must show that the College perceived him as having an
impairment.”). The evidence is clear that BNSF did not be-
lieve that Shell had any of the feared impairments when it re-
fused his application. Dr. Jarrad submitted a declaration say-
ing that when he made his decision, he did not understand
Shell to have one of those impairments. And when BNSF ech-
oed the same in its statement of material facts, Shell’s re-
sponse pointed to no evidence to controvert that fact.
   All of this narrows and lends precision to the question be-
fore us: whether the ADA’s “regarded as” prong covers a sit-
uation where an employer views an applicant as at risk for
developing a qualifying impairment in the future. We hold
that it does not.
                                A
    We find our answer in the first (and usually final) stop for
statutory questions—the text. The ADA’s “regarded as”
prong defines “disability” as “being regarded as having [a
physical or mental] impairment.” 

(1)(C). It is
No. 19-1030                                                   7

written in the passive voice, resulting in some of the attendant
clumsiness that English teachers warn of. Even so, the text
plainly encompasses only current impairments, not future
ones. The key word is “having,” and the EEOC and BNSF
quarrel over whether it is a gerund or a present participle. La-
bels aside, no one would understand the sentence, “Shell is
being regarded as having sleep apnea,” to mean anything
other than Shell is viewed today as currently suffering from
sleep apnea. “Having” means presently and continuously. It
does not include something in the past that has ended or
something yet to come. To settle the technical debate, it is a
present participle, used to form a progressive tense. See
BRYAN A. GARNER, GARNER’S MODERN AMERICAN USAGE 1020
(4th ed. 2016) (defining “present participle” as “[a] nonfinite
verb form ending in -ing and used in verb phrases to signal
the progressive aspect”).
    This reading is definitively reinforced by the ADA’s spe-
cific definition of “being regarded as having such an impair-
ment” in paragraph 3, which is when “he or she has been sub-
jected to an action … because of an actual or perceived phys-
ical or mental impairment.” 

(3)(A). If the im-
pairment does not yet exist, it can be neither actual nor per-
ceived.
    The EEOC points to the Dictionary Act’s command that
“unless the context indicates otherwise … words used in the
present tense include the future as well as the present.”

. The Dictionary Act adds little, however, because
its general instruction cannot overcome the plain meaning of
the ADA’s statutory text. Put another way, the “context [that]
indicates otherwise” here comes from the ordinary import of
the language Congress employed in § 12102(1)(C) and
8                                                   No. 19-1030

§ 12102(3)(A) of the ADA. See Rowland v. Cal. Men’s Colony,
Unit II Men’s Advisory Council, 

 (1993) (“‘Con-
text’ here means the text of the Act of Congress surrounding
the word at issue … and this is simply an instance of the
word’s ordinary meaning.”); EEOC v. STME, LLC, 

, 1317 (11th Cir. 2019) (“While it is true that the phrase
‘being regarded as having such an impairment’ contains pre-
sent tense verbs, the ADA’s plain language and context indi-
cates that the Dictionary Act does not apply here as the EEOC
suggests.”).
    We find ourselves in good company with this reading of
the ADA’s text. In Morriss v. BNSF Railway Company, 

 (8th Cir. 2016), the Eighth Circuit came to the same
conclusion on similar facts. BNSF denied Melvin Morriss’s job
application for the same reason it denied Shell’s—his BMI was
over 40. 

. Morriss, like Shell, argued that BNSF’s re-
fusal to hire him based on the risk that he would develop cer-
tain medical conditions in the future meant that the company
perceived him as having a current physical impairment. 

. The Eighth Circuit explained that “the plain language of
the ADA prohibits actions based on an existing impairment
or the perception of an existing impairment” but “[t]he ADA
does not prohibit discrimination based on a perception that a
physical characteristic—as opposed to a physical impair-
ment—may eventually lead to a physical impairment as de-
fined under the Act.” 

     All other circuits that have confronted the issue agree. See
STME, 938 F.3d at 1315 (“[T]he disability definition in the
ADA does not cover this case where an employer perceives a
person to be presently healthy with only a potential to become
ill and disabled in the future.”); EEOC v. BNSF Ry. Co., 902
No. 19-1030 

 (9th Cir. 2018) (noting that the parties agreed
“BNSF must have regarded [the employee] as having a current
impairment,” a reading that “comports … with the statutory
text, which prohibits discrimination on the basis of an ‘actual
or perceived impairment’ in the present tense”); see also Adair
v. City of Muskogee, 

 (10th Cir. 2016) (stating
that the employer must have “perceived the impairment at
the time of the alleged discriminatory action”).
    With only proof that BNSF refused to hire him because of
a fear that he would one day develop an impairment, Shell
has not established that the company regarded him as having
a disability or that he is otherwise disabled. Absent this show-
ing, he cannot prevail on his claim of discrimination, and
BNSF is entitled to summary judgment.
                                B
    The EEOC advances two other arguments in favor of its
contrary reading of the ADA’s text. First, the agency points to
its Compliance Manual, which provides this example:
       CP’s genetic profile reveals an increased suscep-
       tibility to colon cancer. CP is currently asymp-
       tomatic and may never in fact develop colon
       cancer. After making CP a conditional offer of
       employment, R learns about CP’s increased sus-
       ceptibility to colon cancer. R then withdraws the
       job offer because of concerns about matters such
       as CP’s productivity, insurance costs, and at-
       tendance. R is treating CP as having an impair-
       ment that substantially limits a major life activ-
       ity. Accordingly, CP is covered by the third part
       of the definition of “disability.”
10                                                     No. 19-1030

EEOC Compl. Man. § 902.8, 

. Though at first
blush this example seems to support the agency’s contention
that future impairments are covered, other agency guidance
muddies the water. Foremost, the EEOC’s Interpretative
Guidance says the definition of “impairment” does not in-
clude “characteristic predisposition to illness or disease.” 29
C.F.R. Pt. 1630, App. § 1630.2(h). If the impairment is suscep-
tibility to colon cancer, then the Compliance Manual contra-
dicts the Interpretive Guidance’s statement that a predisposi-
tion is not an impairment. And if the impairment is colon can-
cer itself, the Compliance Manual contains no explanation for
why the withdrawal of a job offer based on the applicant’s
susceptibility to colon cancer is the same thing as treating him
as if he now has colon cancer. The Compliance Manual’s ge-
netic profiling example is unmoored from the ADA’s text and
in tension with other EEOC interpretative guidance, so it
lacks the power to persuade us away from the statute’s unam-
biguous text.
    Second, the EEOC invokes the ADA’s purpose, part of
which is to combat “society’s accumulated myths and fears
about disability and disease.” Sch. Bd. of Nassau County, Fla. v.
Arline, 

 (1987). But to the extent BNSF’s BMI
policy reflects a stereotype, it is one about obesity, and Shell’s
obesity—lacking evidence of a physiological cause—is not a
disability that the ADA protects. See Richardson, 

. While Congress did direct that “[t]he definition of disa-
bility … shall be construed in favor of broad coverage of indi-
viduals,” 

(4)(A), the mandate does not give
us license to go beyond the terms of the statute. See New Prime
Inc. v. Oliveira, 

 (2019) (“If courts felt free to
pave over bumpy statutory texts in the name of more expedi-
tiously advancing a policy goal, we would risk failing to ‘take
No. 19-1030                                                 11

account’ of legislative compromises essential to a law’s pas-
sage and, in that way, thwart rather than honor ‘the effectua-
tion of congressional intent.’”). We cannot decide the question
presented based on broad statutory purposes where the an-
swer is supplied by the statute’s plain language.
   For these reasons, we REVERSE the district court’s denial
of summary judgment and REMAND for further proceed-
ings.