Kilcrease v. Domenico Transportation Co.

828 F.3d 1214, 32 Am. Disabilities Cas. (BNA) 1647, 2016 U.S. App. LEXIS 12777, 2016 WL 3741869
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 12, 2016
Docket15-1320
StatusPublished
Cited by48 cases

This text of 828 F.3d 1214 (Kilcrease v. Domenico Transportation Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kilcrease v. Domenico Transportation Co., 828 F.3d 1214, 32 Am. Disabilities Cas. (BNA) 1647, 2016 U.S. App. LEXIS 12777, 2016 WL 3741869 (10th Cir. 2016).

Opinion

McHUGH, Circuit Judge.

I. INTRODUCTION

Mark Kilcrease is a commercial truck driver who was temporarily unable to work due to the effects of cancer. After his cancer went into remission, Mr. Kilcrease applied for a truck-driving position with Domenico Transportation Company. Do-menico rejected Mr. Kilcrease’s application, and he filed suit, alleging discrimination and retaliation in violation of the Americans with Disabilities Act (ADA). The district court granted summary judgment to Domenico on both claims, and Mr. Kilcrease appeals.

We conclude the district court properly granted summary judgment on both claims. With respect to his discrimination claim, we agree with the district court that Mr. Kilcrease failed to demonstrate he was a qualified individual within the meaning of the ADA and therefore cannot establish a prima facie case of discrimination. With respect to his retaliation claim, we conclude that Mr. Kilcrease cannot show the requisite nexus between his ADA complaints and an adverse employment action. We therefore affirm the district court’s grant of summary judgment to Domenico.

II. BACKGROUND

Mr. Kilcrease is a survivor of Acute Myeloid Leukemia (AML), a rare form of cancer. He obtained his Commercial Driver License (CDL) in 1994 and drove commercially in Colorado from 1994 until 2002. By 2004 Mr. Kilcrease was in remission from AML, and in 2006 he began actively seeking work. In October 2009, Mr. Kil-crease responded to a job posting by Do-menico and filled out a pre-application questionnaire for a position as a truck driver with the company. The advertisement to which Mr. Kilcrease responded sought drivers with a Class A CDL, three years of verifiable mountain driving, no moving violations within the past three years, and the ability to drive year round in the Colorado mountains. On his questionnaire, Mr. Kilcrease stated that he had eight years of driving experience and three years of mountain-driving experience. He listed no recent driving experience, instead explaining that he had been unemployed since June 2002 and was in remission from AML.

A couple of weeks later, Mr. Kilcrease received a call from Phil Domenico, who informed him that Domenico had rejected his application. According to Mr. Kilcrease, Phil Domenico explained, “the insurance company that underwrites the company’s health insurance policy would not cover [Mr. Kilcrease] because of [his] prior diagnosis of AML.” Mr. Kilcrease claimed he then “asked the Domenico representative, T am not being considered for employment because I am in remission from AML?’ ” and Phil Domenico “responded, Tes.’ ” Mr. Kilcrease suggested that Domenico’s refusal to hire him “might fall under the Americans with Disabilities Act,” but Do-menico declined to reconsider its decision.

*1218 Mr. Kilcrease then filed with the Equal Employment Opportunity Commission (EEOC) a charge of ADA discrimination and retaliation against Domenico. 1 In response to the charge, Domenico claimed that it had rejected Mr. Kilerease’s application not because of any preexisting medical condition, but because he lacked three years of recent driving experience — a requirement that Phil Domenico had explained to Mr. Kilcrease was required by Domenico’s auto-insurance underwriter. The EEOC issued Mr. Kilcrease a notice of right to sue, and Mr. Kilcrease filed suit against Domenico in November 2013. Mr. Kilcrease’s complaint alleged one count of discrimination under the ADA and one count of retaliation.

Domenico moved for summary judgment, arguing Mr. Kilcrease could not establish a prima facie case of ADA discrimination because he lacked three years of verifiable mountain-driving experience and therefore was not a “qualified individual” under the ADA. Specifically, Domenico referred to a company policy requiring mountain-driving experience consisting of experience driving on a 6% grade sustained for one mile or more and argued that Mr. Kilcrease’s employment history demonstrated he lacked such experience. Domenico also moved for summary judgment on Mr. Kilcrease’s retaliation claim, arguing that Mr. Kilcrease could not establish a retaliation claim because Domeni-co made the decision not to hire him before he asserted any rights under the ADA.

The district court agreed with Domenico that the undisputed facts demonstrated Mr. Kilcrease had less than three years of mountaimdriving experience as defined by Domenico and therefore was not a “qualified individual” under the ADA. The dis-triet court also concluded that because Mr. Kilcrease did not raise any ADA concerns until after Domenico had made the decision to not hire him, Mr. Kilcrease could not show the requisite causal connection between his protected activity and an adverse employment decision. The district court accordingly granted Domenico’s motion for summary judgment on both claims. Mr. Kilcrease timely appealed.

III. ANALYSIS

Mr. Kilcrease challenges the district court’s grant of summary judgment on his claims of ADA discrimination and retaliation. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We review the district court’s grant of summary judgment de novo, reviewing] the evidence in the light most favorable to the nonmoving party.” Clark v. Edmunds, 513 F.3d 1219, 1221-22 (10th Cir. 2008) (alteration in original) (internal quotation marks omitted).

A. The District Court Properly Granted Summary Judgment on Mr. Kil-crease’s ADA Discrimination Claim.

Mr. Kilcrease first challenges the district court’s grant of summary judgment to Domenico on his claim of ADA discrimination. The ADA provides in relevant part that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to ... the hiring, advancement, or discharge of employees.” 42 U.S.C § 12112(a). “To establish a prima facie case of discrimination under the ADA, a plaintiff must show (1) that he is disabled within the meaning of the ADA; *1219 (2) that he is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) that he was discriminated against because of his disability.” Davidson v. Am. Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003) (internal quotation marks omitted). Here, Domenico’s motion for summary judgment, and the district court’s grant of that motion, focused exclusively on whether Mr. Kilerease could establish the second element of his claim: that he was a “qualified individual” within the meaning of the ADA. We accordingly begin our analysis there.

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828 F.3d 1214, 32 Am. Disabilities Cas. (BNA) 1647, 2016 U.S. App. LEXIS 12777, 2016 WL 3741869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kilcrease-v-domenico-transportation-co-ca10-2016.