Harsh and Unreasonable Evidentiary Standards in Dillon v. Mountain Coal Company, L.L.C.

Hannah Misner

BACKGROUND

In March 1999, Jared Dillon injured his neck and back while working for Mountain Coal Company, L.L.C. (“Mountain Coal”) when the cover on a mining machine fell and struck him at West Elk Mine.[1] After trying to return to work twice and experiencing great pain, he was told that he could not come back to work until he had no medical restrictions. Because of his injury, he did not return to work for several months, and received his termination letter on January 24, 2000.

Dillon brought suit against Mountain Coal, claiming the company’s termination violated the Americans with Disabilities Act (ADA). The ADA prohibits discrimination by employers against employees with disabilities.[2] However, an employee need not actually have a disability to be covered by the act, but need only be “regarded as” substantially limited in a major life activity,[3] such as working. Dillon’s specific allegation was a “regarded as” claim under the ADA,[4] meaning that Mountain Coal allegedly believed Dillon was substantially limited in his ability to work, when the impairment was actually not so limiting.[5]

At the close of Dillon’s case in chief, Mountain Coal moved for judgment as a matter of law,[6] arguing that the remaining plaintiffs failed to prove that Mountain Coal regarded them as disabled. The district court reserved ruling on the motion until the jury had rendered a verdict. When the jury entered a verdict in favor of both plaintiffs, the court again reviewed and granted Mountain Coal’s motion. The Court of Appeals for the Tenth Circuit reviewed the trial court’s ruling on Dillon’s claim de novo.

THE TENTH CIRCUIT’S DECISION

Circuit Judge Tacha wrote the opinion of the court, with Circuit Judges Seymour and Holmes joining. The court evaluated Dillon’s “regarded as” claim under the ADA with a two-prong test.[7] First, the court examined “whether the employer regarded the employee as significantly restricted in performing his specific job because of an impairment.” Because Mountain Coal explicitly stated Dillon’s work restrictions as a reason for termination in its January 2000 letter and had enacted a “100 percent healed” policy[8] during Dillon’s employment, the Tenth Circuit quickly found for Dillon on the first inquiry. The second prong, “whether the employer subjectively believed that the employee was significantly restricted in performing either a class of jobs or a broad range of jobs in various classes,”[9] was more complex.

Under the ADA, Dillon would satisfy the second prong by proving he was restricted from either a class of jobs or a broad range of jobs.[10] A “class of jobs” means “the job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills, or abilities, within the geographical area, from which the individual is also disqualified because of the impairment.”[11] A “range of jobs” is nearly identical, but considers jobs “not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified.”[12]

Dillon asserted that Mountain Coal’s “100 percent healed” policy demonstrated both restrictions. First, Dillon argued that the policy reflected Mountain Coal’s belief that he was unable to perform any mining job, making him substantially limited in that specific class of jobs. The court disagreed, finding that Dillon would be required to also produce evidence of other mining jobs in the area and that mining jobs are, in fact, a class of jobs. Second, Dillon argued that the policy also barred him from a variety of other jobs at the mine, disqualifying him from a broad range of jobs. However, the court found that argument incomplete because Dillon failed to specify the types of diverse jobs available at the mine. Finding that Dillon had failed to produce sufficient evidence, the court displaced the jury’s verdict and found for Mountain Coal as a matter of law.

ANALYSIS           

Dillon highlights the Tenth Circuit’s high evidentiary standards for ADA “regarded as” claims. The Tenth Circuit has made clear that it will not consider a “100 percent healed” policy alone as proof of a substantial limitation. Prevailing on an ADA “regarded as” claim is already difficult because both prongs turn entirely on the employer’s state of mind. The second prong is especially challenging to prove because, as the court acknowledged, employers rarely, if ever, think about other or outside jobs an employee is able to perform when deciding to terminate an employee.[13]

Because the prongs are so interrelated and require essentially the same inquiry into the employer’s state of mind, the court’s decision to require separate and explicit evidentiary showings for each prong unnecessary, cumulative, and contrary to common sense. The first prong demonstrates that the employer did not think the individual could perform that job. It logically follows that the employer did not believe the individual could perform that type, or “class,” of job. Therefore, the “class of jobs” option for the second prong is the most clearly related to the first prong’s inquiry.

This correlation between the prongs has even been suggested by the Tenth Circuit. Two years before Dillon, the Tenth Circuit subtly noted in Jones v. United Parcel Service, Inc.[14] that had the plaintiff in that case framed his argument in the “class of jobs” option instead of “broad range,” he may have prevailed. In Jones, the plaintiff was unable to lift heavy packages for UPS, and brought suit because UPS would not place him in a less physically demanding position.[15] Before evaluating Jones’ “broad range” argument, the Tenth Circuit stated: “we note that Mr. Jones does not argue that UPS viewed him as substantially limited in his ability to perform a class of jobs because UPS believed he could not perform other jobs with similar lifting requirements.” It appeared the court was alluding to the solution to this kind of case, but then retracted its advice when it heard a similar case in Dillon.

Lastly, the Dillon court repeatedly chastised Dillon for failing to explicitly prove that mining is a “class of jobs” as defined in the ADA.[16] However, in the Dillon opinion, the court also noted McKenzie v. Dovala[17], in which the Tenth Circuit sua sponte classified “law enforcement jobs” as a “class of jobs” in a “regarded as” ADA case against a Sheriff’s office, without requiring that the Plaintiff expressly show that law enforcement is a “class.”[18] This further illustrates the Tenth Circuit’s harsh and unreasonable evidentiary standards in Dillon. Ultimately, the Tenth Circuit left unanswered whether “100 percent healed” policy inherently violates the ADA.

 


[1] Dillon v. Mountain Coal Company, L.L.C., 569 F.3d 1215, 1217 (10th Cir. 2009).

[2] 42 U.S.C. §12112(a).

[3] 29 C.F.R. §1630.2(l)(1).

[4] Dillon, 569 F.3d at 1218.

[5] Id .(citing Jones v. United Parcel Service, Inc., 502 F.3d 1176, 1190 (10th Cir. 2007).

[6] Fed. R. Civ. P. 50.

[7] Id.

[8] (“Under that policy, Mountain Coal would not permit any employee with medical restrictions from working in any capacity at the mine.”).

[9] Id. (citing EEOC v. Heartway Corporation, 466 F.3d 1156, 1165 (10th Cir. 2006)).

[10] 29 C.F.R. §1630.2(3)(i) (“The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person . . .”).

[11] 29 C.F.R. §1630.2(j)(3)(ii)(B).

[12] 29 C.F.R. §1630.2(j)(3)(ii)(C) (emphasis added).

[13] Id. at 1219 (“As it is safe to assume employers do not regularly consider the panoply of other jobs their employees could perform, and certainly do not often create direct evidence of such considerations, the plaintiff’s task becomes even more difficult.”).

[14] 502 F.3d 1176 (10th Cir. 2007).

[15] Id. at 1192.

[16] Dillon, 569 F.3d at 1220, 1221

[17] 242 F.3d 967 (10th Cir. 2001).

[18] Dillon, 569 F.3d at 1220 (explaining that in McKenzie, the Tenth Circuit determined whether the Plaintiff’s “employer regarded her are limited in performing a class of jobs that we characterized as ‘law enforcement jobs.’”) (emphasis added).