Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2004

Green v. Joy Cone Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3859




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Recommended Citation
"Green v. Joy Cone Co" (2004). 2004 Decisions. Paper 398.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/398


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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 03-3859

                                    BRENDA GREEN,

                                                 Appellant

                                            v.

                                JOY CONE COMPANY

                      Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (Civil Action No. 03-cv-02471)
                           District Judge: Hon. Joy F. Conti

                                Argued: May 12, 2004

                   Before: Nygaard, McKee, Chertoff, Circuit Judges.

                                (Filed: August 12, 2004)

Colleen R. Johnston, Esq. (Argued)
Ogg, Cordes, Murphy & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA 15222

Gary F. Lynch, Esq.
36 North Jefferson Street
P.O. Box 7635
New Castle, PA 16107

      Attorneys for Appellant

Patrick W. Ritchey, Esq. (Argued)
Reed Smith

                                           1
435 Sixth Avenue
Pittsburgh, PA 15219

       Attorney for Appellee

                                          OPINION

McKee, Circuit Judge.

       Brenda Green contends that Joy Cone Company (“Joy Cone” or “the Company”)

made an impermissible pre-employment inquiry under the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12112(d), when it required her to sign a medical release form

as part of her employment application. The district court granted summary judgment in

favor of Joy Cone. For the reasons discussed below, we conclude that this appeal is

patently frivolous and will affirm the district court.

                                               I

       Green is a non-disabled individual. On February 12, 2001, she applied for

employment with Joy Cone. Appx. 17, 19. As part of the employment application, she

was required to sign a blank medical release form, which stated:

              I understand that, after an offer of employment is made by Joy
              Cone Company, or at any time during my employment with
              the Company, I may be required to submit to and pass a
              physical examination in accordance with our policy . . . . I
              further understand and agree that, when requested to do so by
              the Company, I will execute documents authorizing the
              Company to obtain, for its internal use, medical records and
              information pertaining to any physical examination.

Appx. at 19. In addition, the release requires the applicant to list his/her health care



                                               2
provider and physician(s). If the applicant does not have a regular physician, he/she must

list the names of any doctors, clinics, and/or medical facilities at which he/she received

treatment within the previous 10 years. Id. As a matter of policy, Joy Cone does not

request an applicant’s medical records until the applicant has received an offer of

employment. Appx. 17. Green did not received a response to her application, and Joy

Cone never accessed her medical records. Id.

       On March 6, 2001, after waiting all of three weeks, and without ever having been

informed that her job application had been rejected, Green filed a charge with the Equal

Employment Opportunity Commission (“EEOC”), asserting that the inclusion of the

medical release form was a per se violation of the ADA.1 App. 21. Not surprisingly, the

EEOC dismissed the charge based on its inability to find a statutory violation. On

December 26, 2001, Green filed a class action complaint in the United States District

Court for the Western District of Pennsylvania. Appx. 2. On August 21, 2003, the

district court granted Joy Cone’s motion for summary judgment. Green filed a timely

appeal.

                                               II

       Before addressing the “merits” of Green’s claim, we must determine whether she


       1
        During oral argument, when asked about her haste in rushing to the EEOC only three
weeks after applying for a job her client had not yet been rejected from, plaintiff’s counsel
suggested that the statute of limitations had been a consideration. However, the ADA allows a
victim of discrimination 300 days from the act of termination to file a charge with the EEOC. See
Watson v. Eastman Kodak Co., 

 (3d Cir. 2000). We therefore can not help but
conclude that counsel’s reliance upon the ADA’s limitations period was disingenuous at best.

                                               3
has constitutional standing to sue. In order to have constitutional standing, the plaintiff

must establish that: (1) he/she suffered an injury-in-fact; (2) there is a causal nexus

between the injury and the conduct complained of; and (3) the injury will likely be

redressed by a favorable judicial decision. Joint Stock Society v. UDV North America,

Inc., 

, 175 (3d Cir. 2001) (citing Lujan v. Defenders of Wildlife, 

, 560-61 (1992)). We review questions of standing de novo. Hutchins v. I.R.S., 

, 42 (3d Cir. 1995).

       The existence of an injury-in-fact may be demonstrated “through actual damage

(emotional, pecuniary, or otherwise), or through the presence of a continuing illegal

practice to which plaintiff is likely to be subject absent court intervention.” Tice v.

Centre Transp. Auth., 

, 519 (3d Cir. 2001). In other words, the injury must

be “concrete and particularized” and “actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560 (citations and internal quotation marks omitted).

“[A] violation of § 12112(d), without such a showing, presents no ‘injury’ capable of

remedy, and thus affords no basis for suit.” Tice, 247 F.3d at 519-20 (citations omitted).

       Section 12112(d) does provide that, prior to making an offer of employment, an

employer cannot “conduct a medical examination or make inquiries of a job applicant as

to whether such applicant is an individual with a disability or as to the nature or severity




                                              4
of such disability.” 2 Thus, a violation of § 12112(d) occurs at the moment an employer

conducts an improper medical examination or asks an improper disability-related

question, regardless of the results or response. See, e.g., Griffin v. Steeltek, Inc., 

 (10th Cir. 1998); Armstrong v. Turner Industries, Inc., 

 (5th Cir. 1998).

       It is uncontested that Joy Cone never attempted to access Green’s medical records

and there is no evidence that the Company discriminated against her based on any actual

or perceived disability. Appx. 17. Even assuming arguendo that Joy Cone’s policy

requiring applicants to sign a medical release form as part of its employment application

is a per se violation of § 12112(d), there is absolutely no cognizable injury to Green.

Rather, any violation was merely technical. “[T]here is no indication in either the text of

the ADA or in its history that a technical violation § 12112(d) was intended to give rise to

damages liability.” Tice, 247 F.3d at 520.

       Green argues that she is entitled to injunctive relief based on Joy Cone’s

continuing illegal practice. Although the Company admitted during argument that it

continues to include the medical release form as part of its job application, Green is not

entitled to seek injunctive relief on behalf of herself or others on this record. It is, of

course, true that an injunction is intended to prevent future violations of plaintiff’s rights.


       2
         However, an employer “may require a medical examination after an offer of
employment has been made to a job applicant and prior to the commencement of the
employment duties of such applicant, and may condition an offer of employment on the
results of such examination . . . .” § 12112(d).



                                               5
However, “[t]he plaintiff must show that [he/she] . . . is immediately in danger of

sustaining some direct injury as the result of the challenged . . . conduct . . . .” City of Los

Angeles v. Lyons, 

, 102 (1983) (citations and internal quotation marks

omitted). Green’s standing to seek injunctive relief therefore depends on whether Joy

Cone is likely to access her medical records in the future and discriminate against her

based on some actual or perceived disability. She has offered no proof that this injury is

about to befall her. In fact, in her haste to file a class action without awaiting a decision

on her application for employment, she put herself in a rather bizarre situation where she

is arguing about a job rejection that never occurred.

        There is no reason to think that Green will apply for another position with Joy

Cone in the immediate future, and she does not argue that she will. Nor has she offered

anything to show that the Company will change its policy and begin accessing applicants’

medical records prior to making offers of employment in violation of § 12112(d).

Moreover, Green’s medical records would reveal that she is not actually disabled, and

there is nothing to suggest the Company’s conduct would give rise to a “regarded as”

disability claim.

       Simply put, despite counsel’s apparent drive to litigate, the client has not suffered

the injury necessary for the standing that is a condition precedent to this court’s




                                               6
jurisdiction under Article III.3 Therefore, the district court clearly did not err in dismissing

her suit.4

                                              III

       Based on the forgoing analysis, we will affirm the district court.




       3
        Green also fails to satisfy the causation and redressability requirements, which
are inexorable linked to injury-in-fact.
       4
        Because we find that Green does not have standing, we need not address any of
the other questions presented in this appeal.

                                               7