Richardson v. Chi. Transit Auth.
Opinion
*884
Mark Richardson, a former Chicago Transit Authority ("CTA") bus operator, alleged CTA took adverse action against him because of his extreme obesity in violation of the Americans with Disabilities Act of 1990 ("ADA"),
I. Background
Mark Richardson began working for CTA in 1993 as a temporary bus operator, and he worked as a full-time operator from August 1999 until February 2012. According to a CTA doctor, Richardson weighed 350 pounds in January 2005. And another CTA doctor indicated Richardson weighed 566 pounds in May 2009. Based on his Body Mass Index (a standardized weight-to-height ratio used to determine whether an individual is underweight, within the normal weight range, overweight, or obese) Richardson has "extreme" obesity whenever he weighs over 315 pounds. He also suffers from hypertension and sleep apnea.
Beginning in early February 2010, Richardson was absent from work because he had the flu. He attempted to return to work on February 19, but Advanced Occupational Medicine Services ("AOMS")-CTA's third-party medical provider-documented that Richardson had uncontrolled hypertension and influenza, weighed over 400 pounds, and could not return to work until he controlled his blood pressure. For that reason, on April 9, CTA's Disability Review Committee transferred Richardson to Temporary Medical Disability-Area 605 ("Area 605"). CTA administrative procedures define Area 605 as a "budgetary assignment for eligible union employees who have been found medically unfit to perform the essential functions of their job classification due to an illness or injury."
On September 13, 2010, AOMS examined Richardson's fitness to return to work. It found Richardson "physically fit to work as a bus operator," but indicated Richardson "must be cleared by safety *885 prior to operating [a] bus." CTA requires AOMS to report if a bus operator returning from extended leave weighs over 400 pounds because CTA bus seats are not designed to accommodate drivers weighing over 400 pounds. Weighing over this maximum does not, however, automatically disqualify employees from working as bus operators. CTA permits such employees to operate buses if the safety department finds they can safely perform their job. To make this determination, CTA administers a "special assessment," a driving performance test used to determine whether bus operators can perform all standard operating procedures on six types of CTA buses.
On September 16, 2010, Richardson completed a special assessment. CTA's Acting Manager of Bus Instruction, Marie Stewart, assigned Bus Instructors John Durnell and Elon McElroy to administer the test. During the assessment, Durnell and McElroy joked about Richardson's weight. Durnell testified he was just trying "to lighten up the situation," and asserted that in response, Richardson "started laughing and he started to relax." Nevertheless, McElroy reported Durnell's comments to Stewart, and Stewart reprimanded Durnell for unprofessionalism.
Following the assessment, Durnell and McElroy each completed a report. While Durnell concluded Richardson "can drive all of CTA's buses in a safe and trusted manner," both instructors noted several safety concerns: Richardson cross-pedaled, meaning his foot was on the gas and brake at the same time; Richardson was unable to make hand-over-hand turns; Richardson's leg rested close to the door handle; Richardson could not see the floor of the bus from his seat; part of Richardson's body hung off the driver's seat; and the seat deflated when Richardson sat. Additionally, both instructors noted Richardson wore a seatbelt extender, wrote that Richardson was "sweating heavily" and needed to lean onto the bus for balance, and Durnell commented on a "hygiene problem." At his deposition, McElroy testified that as a "former heart patient," he was worried Richardson's "sweating [could] lead to an episode."
Stewart drafted a memorandum to CTA's Vice President of Bus Operations, Earl Swopes, concluding that "[b]ased on the Bus Instructors['] observations and findings, the limited space in the driver's area and the manufacturer requirements, it would be unsafe for Bus Operator Richardson to operate any CTA bus at this time." She specifically referenced the safety concerns listed above. Moreover, Stewart wrote that "[t]he maximum allowable weight per the manufacturer requirements for CTA buses is 400 pounds," and "[i]t has been represented that Operator Richardson is over that weight maximum." Because Richardson failed the assessment and could not adhere to all CTA operating procedures, Swopes determined that Richardson could not safely operate CTA buses. Swopes testified he based this decision solely on Stewart's memorandum, without any independent investigation.
Instead of immediately terminating Richardson's employment, CTA proposed a written agreement: CTA would transfer Richardson back to Area 605 so he could work with doctors to lose weight and be subject to periodic monitoring; in exchange, Richardson would release his ability to bring various causes of action. Richardson refused. In March 2011, CTA nonetheless transferred Richardson to Area 605; the accompanying form provides as a rationale that Richardson "exceeded the weight requirement to operate the bus." In October 2011, CTA informed Richardson that he was approaching two years of inactive status, and per CTA policy, he could extend his time in Area 605 by one year by submitting medical documentation.
*886 Richardson did not submit documentation, and in February 2012, CTA terminated his employment.
On December 15, 2015, the Equal Employment Opportunity Commission ("EEOC") issued Richardson a right-to-sue letter, and on March 10, 2016, Richardson brought the operative complaint against CTA, alleging it violated the ADA by "refus[ing] to allow [him] to return to work because it regarded him as being too obese to work as a bus operator." On October 17, 2016, the district court denied CTA's motion to dismiss, ruling that "[e]ven if [Richardson] is ultimately required to prove that his obesity was caused by a physiological disorder, he is not required to allege the same." On April 20, 2017, Richardson and CTA filed cross-motions for summary judgment, and on November 13, 2017, the district court denied Richardson's motion and granted CTA's motion. It held, based on the language of the ADA and the pertinent EEOC regulation and interpretive guidance, that "to qualify as a protected physical impairment, claimants under the ADA must show that their severe obesity is caused by an underlying physiological disorder or condition." Because Richardson presented no such evidence, the district court entered judgment in CTA's favor.
On December 7, 2017, CTA filed its bill of costs, seeking to recover $ 7,333.56 in deposition and copying costs as the prevailing party pursuant to Federal Rule of Civil Procedure 54(d)(1). Richardson argued costs should not be taxed because of his inability to pay, or alternatively, CTA's costs should be reduced because transcript delivery fees are not recoverable and the transcript costs CTA sought were over the rate allowed by local rules. On May 1, 2018, the district court issued a minute order taxing $ 2,067.26 in costs. It denied copying costs because the documents were available on the electronic docket, and it reduced deposition transcript costs.
Richardson separately appealed the district court's grant of CTA's motion for summary judgment and decision to tax costs. We consolidated the appeals for resolution.
II. Discussion
A. The ADA and Obesity
We review cross-motions for summary judgment de novo, "construing all facts and drawing all reasonable inferences in favor of the party against whom the motion under consideration was filed."
Hess v. Bd. of Trs. of S. Ill. Univ.
,
The ADA prohibits employers from "discriminat[ing] against a qualified individual on the basis of disability."
The ADA defines disability as: "(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment."
1. Actual Impairment
Congress has not defined "impairment." In a regulation implementing the ADA, however, the EEOC defined "physical impairment" as: "Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine."
Richardson and CTA disagree about whether his extreme obesity-even without evidence of an underlying physiological condition-meets the definition of physical impairment and is thus an actionable disability for ADA purposes. This is an issue of first impression for this Circuit. However, three of our sister circuits have considered the question; each has held, based on the language of
In his arguments to the contrary, Richardson focuses first on the ADAAA. Congress passed these amendments in 2008 to ensure that the ADA's "definition of disability ... be construed in favor of broad coverage."
Specifically, Congress sought to broaden the scope of the "being regarded as having such an impairment" definition of disability.
Id.
§ 2(b)(3);
see
Miller v. Ill. Dep't of Transp.
,
Additionally, Congress relaxed court-imposed rules as to how severe an impairment must be to be considered a disability. It sought to abrogate the Supreme Court's decisions in
Sutton
and
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams
,
*889
("An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.");
Richardson contends that after the ADAAA, courts must broadly construe impairment to encompass extreme obesity, even without evidence of an underlying physiological condition.
Cf.
EEOC v. BNSF Ry. Co.
,
Next, Richardson insists that we must interpret the EEOC's definition of physical impairment in light of EEOC interpretive guidance. That guidance, which interprets both the ADA and the EEOC regulation, states:
It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of the term "impairment" does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within "normal" range and are not the result of a physiological disorder.
29 C.F.R. pt. 1630, app. § 1630.2(h). While EEOC interpretive guidance is "not entitled to full
Chevron
deference," it does "reflect a body of experience and informed judgment to which courts and litigants may properly resort for guidance" and is therefore "entitled to a measure of respect under the less deferential
Skidmore
[
v. Swift & Co.
,
According to Richardson, this EEOC guidance specifies that "impairment does
not
include the physical characteristic of weight if both of the following elements are present: (1) the weight [is] within the normal range;
and
(2) the weight is
not
the result of a physiological disorder." The Montana Supreme Court adopted this interpretation.
BNSF Ry. Co. v. Feit
,
Like the Eighth Circuit, we do not find this reading of the interpretive guidance persuasive. Rather, "a more natural reading of the interpretive guidance is that an individual's weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range
and
it occurs as the result of a physiological disorder."
Morriss
,
Moreover, Richardson's preferred interpretation is overbroad. If we were to read the EEOC interpretive guidance in the way he suggests, even an employee with normal weight could claim a weight-based physical impairment if his weight was the result of a physiological disorder. Likewise, any employee whose weight-or other physical characteristic-is even slightly outside the "normal range" would have a physical impairment even with no underlying physiological cause. Such results are inconsistent with the ADA's text and purpose and must be rejected. Otherwise, "the 'regarded as' prong ... would become a catch-all cause of action for discrimination based on appearance, size, and any number of other things far removed from the reasons the [ADA] [was] passed."
Watkins
,
In any event, even if this interpretive guidance means what Richardson says it means, we do not defer to EEOC guidance that is contrary to the text of the regulation it purports to interpret.
See
Christopher v. SmithKline Beecham Corp.
,
*891 Patient and scientific professional organizations, as amici curiae, make a somewhat related, but distinct argument. They insist that because both the medical community 6 and federal and state policymakers 7 understand obesity as a disease, obesity is in and of itself a physiological disorder and therefore a physical impairment within the definition of the ADA. This argument is not persuasive. The ADA is an antidiscrimination-not a public health-statute, and Congress's desires as it relates to the ADA do not necessarily align with those of the medical community. Moreover, amici's argument proves too much; if we agreed that obesity is itself a physiological disorder, then all obesity would be an ADA impairment. While Richardson does not ask us to hold that all obese individuals-found to be as high as 39.8% of the American adult population 8 -automatically have an ADA impairment, adopting amici's position leads to this unavoidable, nonrealistic result.
At bottom, Richardson does not present any evidence suggesting an underlying physiological disorder or condition caused his extreme obesity.
9
Without such evidence, we cannot call Richardson's extreme obesity a physical impairment within the meaning of the ADA and the EEOC regulation.
See
Morriss
, 817 F.3d at 1112 ;
Watkins
,
*892 2. Perceived Impairment
Alternatively, Richardson argues that even if we hold extreme obesity is not itself an impairment, he is still disabled under the ADA because CTA
perceived
his obesity to be a physical impairment.
See
Richardson did not make this showing. To be sure, Richardson introduced evidence that CTA took adverse action against him based on his excessive weight. For example, CTA transferred Richardson to Area 605 because he exceeded the weight specifications for CTA buses. Additionally, CTA required Richardson to take a special assessment because he weighed over 400 pounds, not because of any violation of CTA standard operating procedures. And in Stewart's memorandum to Swopes summarizing the results of the special assessment, she highlighted safety concerns directly related to Richardson's weight: he could not perform hand-over-hand turning, he cross-pedaled, he had difficulty getting in and out of the driver's seat, his body hung off the seat, his leg was close to the door handle, and he exceeded the 400-pound maximum per CTA bus manufacturer requirements. But there is no evidence Stewart, Swopes, or anyone else at CTA believed Richardson's excessive weight was caused by a physiological disorder or condition. To the contrary, the evidence suggests CTA perceived Richardson's weight as a physical characteristic that made it unsafe for him to drive. These facts do not permit a finding that CTA regarded Richardson as disabled for purposes of ADA liability.
See
Francis
,
Richardson cites to the First Circuit's opinion in
Cook v. State of Rhode Island, Department of Mental Health, Retardation, & Hospitals
,
*893
B. Costs
"Unless a federal statute, [the Federal Rules of Civil Procedure], or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(1). "There is a presumption that the prevailing party will recover costs, and the losing party bears the burden of an affirmative showing that taxed costs are not appropriate."
Beamon v. Marshall & Ilsley Tr. Co.
,
We have held that "it is 'within the discretion of the district court to consider a plaintiff's indigency' " when taxing costs against him.
Rivera v. City of Chicago
,
Richardson argues the district court abused its discretion because it "completely failed to consider or address [his] arguments and the evidence he submitted demonstrating his inability to pay the costs awarded at this time or in the future." We disagree. To be sure, "district judges [must] provide at least a modicum of explanation when entering an award of costs."
Cengr v. Fusibond Piping Sys., Inc.
,
*894 III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
The Ninth Circuit has acknowledged that "the scope of ADA protection for individuals suffering from obesity ... presents an open question of federal law in this circuit," but it has not had to resolve the issue.
Taylor v. Burlington N. R.R. Holdings, Inc.
,
See, e.g.
,
Sturgill v. Norfolk S. Ry. Co.
, No. 18-cv-566,
The Montana Supreme Court reached a similar conclusion, discussing the ADA when interpreting the analogous Montana law.
BNSF Ry. Co. v. Feit
,
See
Toyota
,
Richardson also emphasizes the EEOC has consistently expressed its view that extreme obesity is a physical impairment. In a compliance manual, the EEOC stated that while "[b]eing overweight, in and of itself, generally is not an impairment ..., severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment." EEOC Compliance Manual § 902.2(c)(5)(ii) (2012) (citations and footnotes omitted). The EEOC has also taken this position in litigation, both as plaintiff and amicus. True, courts may generally defer to both EEOC policy statements in a compliance manual and EEOC's interpretation of its own regulation in legal briefs.
Christopher
,
For example, the American Medical Association describes "obesity as a disease state with multiple pathophysiological aspects requiring a range of interventions to advance obesity treatment and prevention." Am. Med. Assoc. House of Delegates, Recognition of Obesity as a Disease (2013), https://www.npr.org/documents/2013/jun/ama-resolution-obesity.pdf. Likewise, the World Health Organization concluded "obesity should be considered a disease in its own right." World Health Org., Obesity and Overweight (2003), http://www.who.int/dietphysicalactivity/media/en/gsfs_obesity.pdf. And the National Institutes of Health said "[o]besity is a complex, multifactorial chronic disease." Nat'l Insts. of Health, Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults , at xi (1998), https://www.nhlbi.nih.gov/files/docs/guidelines/ob_gdlns.pdf.
For instance, the Internal Revenue Service decided an individual could deduct costs of a weight-loss program as a medical care expense because he had "a disease, obesity," I.R.S. Rev. Rul. 2002-19,
See U.S. Dep't of Health & Human Servs., Prevalence of Obesity Among Adults and Youth: United States, 2015-2016 (Oct. 2017), https://www.cdc.gov/nchs/data/databriefs/db288.pdf.
True, Richardson's pulmonologist submitted a declaration stating Richardson's hypertension and sleep apnea were "related to" his obesity. However, there is nothing in the record suggesting Richardson's hypertension or sleep apnea caused his obesity.
Richardson also suggests the fact that he "suffered from extreme obesity ... alone is sufficient ... to establish that he meets the definition of 'disability' under the ADA."
Cf.
Watkins
,
Reference
- Full Case Name
- Mark RICHARDSON, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
- Cited By
- 87 cases
- Status
- Published