Case: 15-20127   Document: 00513340789     Page: 1   Date Filed: 01/13/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-20127                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
MICHAEL A. CANNON,                                                January 13, 2016
                                                                   Lyle W. Cayce
             Plaintiff - Appellant                                      Clerk

v.

JACOBS FIELD SERVICES NORTH AMERICA, INCORPORATED,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, HAYNES, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Jacobs Field Services (JFS), a construction company, offered Michael
Cannon a job as a field engineer at a Colorado mining site. But it quickly
revoked the offer after learning that Cannon had a rotator cuff impairment
that prevented him from lifting his right arm above the shoulder. Cannon
brought suit under the Americans with Disabilities Act (ADA). The district
court granted summary judgment, finding that Cannon could not prove that
he was disabled or a qualified individual. Because the first finding ignored
Congress’s expansion of the definition of disability when it amended the ADA
in 2008 and a factual dispute exists on the second, we reverse.
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                                          I.
      Cannon is a mechanical engineer with over twenty years of experience. 1
In 2010, he had surgery to repair a torn rotator cuff in his right shoulder. The
surgery was unsuccessful. As a result, Cannon can no longer raise his right
arm above shoulder level, and is limited in his ability to push or pull with his
right arm.
      In 2011, Cannon applied for a job as a field engineer with JFS. JFS
offered him the job. Cannon underwent a pre-employment physical. During
the exam, Cannon told the doctor about his inoperable rotator cuff injury and
that he had previously taken the prescription pain reliever Ultram, which is
the brand name version of the opioid Tramadol.              Cannon explained that
although he still had a prescription for Tramadol, he was no longer taking it.
Cannon passed the drug test administered as part of the physical. The doctor
cleared Cannon for the position so long as JFS offered the following
accommodations for the rotator cuff injury: no driving company vehicles; no
lifting, pushing, or pulling more than ten pounds; and no working with his
hands above shoulder level.
      JFS did not agree to the proposed accommodations. Instead, on July 18,
the same day it received the “Medical Clearance” form with the list of
accommodations, it determined that Cannon was physically incapable of
performing the job. Although there is conflicting evidence about who made the
decision to rescind the offer, the turning point occurred when human resources
notified the technical services manager at the Colorado job site about the
doctor’s proposed accommodations and sought approval to proceed with
Cannon’s hiring. In response, the technical services manager stated that



      1  Given the summary judgment posture, this section construes the evidence in the
light most favorable to Cannon.
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                                       No. 15-20127
Cannon would “not be able to meet the project needs and required job duties”
and explained that the job required an employee “capable of driving, climbing,
lifting, and walking” as the job site was located “in the mountains with
rough/rocky terrain” and “spread over several miles.”
       A human resources representative contacted Cannon around this time.
Not mentioning the seemingly unequivocal position taken by the manager that
Cannon could not do the job, the HR representative informed Cannon only that
JFS had concerns that he could not reach above his head with his right arm.
Cannon asked whether he could contact someone to resolve the concerns and
was told to call the Occupational Health Department. Cannon promptly did so
and was told that JFS needed him to clarify whether (1) he could climb a ladder
and (2) was still taking Ultram. Again, there was no indication that the job
offer had been rescinded, and Cannon took the requests for additional
information to mean that satisfactory responses would eliminate the concerns.
Cannon provided the requested information, submitting documentation from
his doctor stating that he was “specifically cleared for climbing vertical ladders
and maintaining 3-point contact with either arm” 2 and was being weaned from
Ultram.
       No one from JFS followed up with Cannon to discuss the doctor’s notes
he had submitted. Instead, during a call on July 20, the same day Cannon
submitted the clearance forms from his doctor, JFS informed Cannon that it
was rescinding the offer based on his inability to climb a ladder. Cannon
continued to try to prove to JFS that he was capable of climbing a ladder in an
effort to have his offer reinstated—sending a video of himself climbing a ladder
while maintaining 3-point contact.            JFS did not respond.          Cannon made


       2 Climbing a ladder using 3-point contact is an “OSHA-driven requirement” which is
designed to prevent injury from “slipping, falling down, hitting the ground” because if a
climber’s feet slip, he can still catch himself with his hands, which should be on the ladder.
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additional attempts to try to contact JFS and discuss his injury and
limitations. These efforts were unsuccessful.
      Cannon filed a complaint with the EEOC. The EEOC concluded that
JFS engaged in disability discrimination because: (1) JFS failed to engage in
the interactive process with Cannon; (2) providing Cannon with the requested
accommodations would not have imposed an undue hardship on JFS; and (3)
JFS did not demonstrate that Cannon would have posed a “direct threat to
himself or to his coworkers” as a field engineer. JFS refused to engage in the
EEOC-directed conciliation process, so the EEOC issued a Notice of Right to
Sue. Cannon filed this lawsuit.
      The district court granted summary judgment in favor of JFS. It found
that Cannon’s rotator cuff injury did not render him disabled under the ADA,
and, even if he were disabled, he was not qualified for the field engineer
position.   The district court did not specifically address a failure-to-
accommodate claim that the parties had briefed.
                                      II.
      This Court reviews de novo a district court’s grant of summary judgment,
viewing “all facts and evidence in the light most favorable to the non-moving
party.” EEOC v. LHC Grp., Inc., 

, 694 (5th Cir. 2014). Summary
judgment is only appropriate if the movant has shown that there is no genuine
issue as to any material fact such that the movant is entitled to judgment as a
matter of law. 

R. Civ. P. 56(a)).
                                      III.
      The ADA prohibits discrimination against on the basis of a disability.
Griffin v. United Parcel Serv., Inc., 

, 221–22 (5th Cir. 2011). As
with other antidiscrimination statutes in the employment context, a plaintiff
trying to show a violation of the ADA using circumstantial evidence must
satisfy the McDonnell Douglas burden-shifting framework.                 E.E.O.C. v.
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Chevron Phillips Chem. Co., LP, 

, 615 (5th Cir. 2009). To make
out his prima facie showing under that framework, Cannon must show that:
(1) the plaintiff has a disability, or was regarded as disabled; (2) he was
qualified for the job; and (3) he was subject to an adverse employment decision
on account of his disability. EEOC v. LHC Grp., Inc., 

, 697 (5th
Cir. 2014). If he makes that showing, a presumption of discrimination arises,
and the employer must “articulate a legitimate non-discriminatory reason for
the adverse employment action.” Chevron Phillips Chem. Co., 

. The burden then shifts to the plaintiff to produce evidence from which a
jury could conclude that the employer’s articulated reason is pretextual. See

the ADA, an individual suffers from a “disability,” if that
individual has “a physical . . . impairment that substantially limits one or
more major life activities.” 42 U.S.C. § 12102(1). The district court concluded
that Cannon was not disabled because his “injured shoulder did not
substantially impair[] his daily functioning.” Whatever merit that finding of
no disability may have had under the original ADA, it is at odds with changes
brought about by the ADA Amendments Act of 2008. Pub. L. No. 110-325, 122
Stat. 3553 (2008).     Those amendments “make it easier for people with
disabilities to obtain protection under the ADA.” 29 C.F.R. § 1630.1(c)(4). A
principal way in which Congress accomplished that goal was to broaden the
definition of “disability.”   

of that expanded concept of
disability support a finding of disability in this case.
        The first aspect of the 2008 Act that helps establish Cannon’s injury as
a disability is its clarification that the Supreme Court and EEOC had
interpreted the “substantially limits” standard to be a more demanding one
than Congress had intended. 42 U.S.C. § 12101 note (ADA Amendments Act
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of 2008) (expressly disapproving of prior Supreme Court decisions and EEOC
interpretations of the “substantially limits” standard); Neely v. PSEG Tex., Ltd
P’ship, 

, 245 (5th Cir. 2013) (stating that the ADAAA was passed
to correct the perceived misconception that the “substantially limits” standard
is a demanding inquiry). The 2008 Act thus provides “Rules of Construction
Regarding the Definition of Disability,” which focus on construing the
“substantially limits” standard “in favor of broad coverage.”            42 U.S.C. §
12102(4). EEOC regulations implementing the 2008 Amendments follow this
command in concluding that “the threshold issue of whether an impairment
‘substantially limits’ a major life activity should not demand extensive
analysis,” and the term “shall be interpreted and applied to require a degree of
functional limitation that is lower than the standard for ‘substantially limits’
applied” previously. 29 C.F.R. § 1630.2(j)(1)(iii)–(iv). The inquiry in this post-
amendment case is thus whether Cannon’s impairment substantially limits his
ability “to perform a major life activity as compared to most people in the
general population.” 29 C.F.R. § 1630.2(j)(1)(ii).
      There is ample evidence to support a conclusion that Cannon’s injury
qualifies as a disability under the more relaxed standard. Although the district
court concluded otherwise, the ADA includes “lifting” in its list of major life
activities.   See 42 U.S.C. § 12102(2)(A) (stating that “major life activities
include, but are not limited to . . . lifting, bending, speaking, [etc.]”); see also 29
C.F.R. § 1630.2(i) (also including “reaching” as a major life activity). Given
that lifting and reaching are “major life activities,” Cannon’s shoulder injury
is a qualifying disability if it “substantially limits” his ability to perform such
tasks. There is certainly evidence to that effect. Cannon and his doctor both
stated that he is unable to lift his right arm above shoulder level and that he
has considerable difficulty lifting, pushing, or pulling objects with his right
arm. This does not even appear to be disputed; the limitations posed by
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                                        No. 15-20127
Cannon’s shoulder injury are what led JFS to rescind the offer. 3 Less than two
hours after receiving the report of Cannon’s physical, the technical operations
officer at the mining project wrote that the job offer should be rescinded
because a field engineer must be “capable of driving, climbing, lifting and
walking” and “[b]ased on the list of required accommodations Mr. Cannon will
not be able to meet the project needs and required job duties.”
       JFS’s belief that Cannon’s injury resulted in substantial impairment—
even if that view were mistaken—is the second reason why the 2008
amendments support a finding that Cannon was disabled. The ADA now
covers not just someone who is disabled but also those subjected to
discrimination because they are “regarded as having . . . an actual or perceived
physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.”                42 U.S.C. §§ 12102(1)(C), 3(A)
(emphasis added). The amended “regarded as” provision reflects the view that
“unfounded concerns, mistaken beliefs, fears, myths, or prejudice about
disabilities are just as disabling as actual impairments.” 29 C.F.R. § Pt. 1630,
App. § 1630.2(1) (quoting 2008 Senate Statement of Managers at 9; 2008 House
Judiciary Committee Report at 17). It overrules “prior authority ‘requiring a
plaintiff to show that the employer regarded him or her as being substantially
limited in a major life activity.’” Burton v. Freescale Semiconductor, Inc., 798


       3  The district court relied in large part on Cannon’s own statements in finding that
there was no evidence that his shoulder substantially impaired his daily functioning.
Specifically, the court pointed to Cannon’s statements that he was able to climb a ladder and
“need[ed] no accommodation” to perform the tasks required of a field engineer. But these
statements do not undermine the evidence indicating that his injury substantially limits his
ability to lift, which is all that is required to establish a disability. Indeed, Cannon explained
that he did not need an accommodation only because he compensates for his right arm’s
limitations through greater use of his left arm—“my reasonable accommodation is what God
already gave me. . . . I have a working left shoulder to take over what my right shoulder can’t
do.” The medical clearance form from his doctor also emphasized that Cannon will have to
compensate for his inability to use his right arm by relying more heavily on his left arm.

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F.3d 222, 230 (5th Cir. 2015) (quoting Dube v. Texas Health & Human Servs.
Comm’n, Case No. SA–11–CV–354–XR, 

, at *3 (W.D.Tex.
June 25, 2012)). The evidence favoring Cannon again easily passes muster
under the revised standard requiring only the perception that he suffered from
a physical impairment. 4 The email from the technical services manager cited
above, as well as other evidence such as the report from Cannon’s physical,
support a finding that officials at JFS perceived his shoulder injury to be an
impairment. See 

(holding that employer regarded the plaintiff as
disabled when the supporting documentation for plaintiff’s termination
specifically tied “complaints about [plaintiff’s] conduct to her asserted medical
needs”).
       We thus conclude that evidence exists supporting a finding either that
Cannon is disabled or was regarded as disabled.
                                              B.
       That brings us the closer question of whether, despite Cannon’s
impairments, he was still qualified for the field engineer position. To be a
qualified employee, Cannon must be able to show that he could either (1)
“perform the essential functions of the job in spite of [his] disability,” or (2) that
“a reasonable accommodation of [his] disability would have enabled [him] to
perform the essential functions of his job.” EEOC v. LHC Grp., Inc., 

, 697 (5th Cir. 2014) (internal quotations omitted); see also 42 U.S.C.
§ 12111(8). A function is “essential” if it bears “more than a marginal
relationship” to the employee’s job. Chandler v. City of Dall., 

, 1393
(5th Cir. 1993), holding modified on other grounds as discussed in Kapche v.


       4 The district court applied the prior standard in rejecting the possibility that Cannon
was “regarded as disabled” because “[c]limbing a ladder is not a major-life activity.” The
district court also focused only on Jacobs’s concerns with whether Cannon could climb a
ladder; but the email expresses doubt about whether Cannon can perform multiple activities.

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City of San Antonio, 

(5th Cir. 2002). JFS contends that driving
a company vehicle and climbing a ladder are essential functions of the field
engineer position and argues that Cannon cannot do either because of his
prescription for painkillers and his rotator cuff injury.
       We first address driving, which the district court held was essential
because of the vastness of the worksite and a function that Cannon could not
perform because of his Ultram prescription. Assuming that driving is an
essential function of the field engineer position, a conclusion that Cannon
disputes, there is sufficient evidence from which a jury could conclude that
Cannon was able to perform that duty. JFS cites an unwritten, though quite
sensible, policy that “employees who are taking narcotics are not permitted to
operate company vehicles.” But there is a dispute about whether Cannon was
still taking the medication or, at the least, could have stopped taking it once
he started working.         The painkiller was prescribed “as needed.”                 Cannon
asserts he stopped taking the medication prior to applying and informed JFS
of that prior to being told that his offer had been revoked.                     On his pre-
employment drug test, Cannon did not test positive for any of the substances
JFS tries to detect. 5 And Cannon’s doctor informed JFS that Cannon was
“being weaned” off Ultram. Although in some tension with Cannon’s statement
that he had already stopped using, the doctor’s statement provides further
support for the conclusion that Cannon could have performed the job without
using the painkiller. To be sure, JFS can point to evidence that counters this



       5  The district court assumed that the drug test would have detected Ultram,
explaining the negative test away on the ground that it “merely shows that he had not taken
it at the time.” JFS argues that this is not the case, and that the drug test only looks for
illegal narcotics banned under its separate, written policy prohibiting use of those
substances. Of course, if that is the case, failure to test for prescription painkillers may cast
doubt on whether JFS maintains a separate unwritten policy. In any event, even discounting
the drug test, the other evidence cited above is sufficient to create a fact issue about whether
Cannon could have performed the job without using Ultram.
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                                  No. 15-20127
view, most notably Cannon’s extensive history of Ultram use which continued
after JFS rescinded the job offer. In the end, however, the evidence creates a
dispute that a jury should decide about whether Cannon could have avoided
taking the medication while working for JFS.
        The same is true for the federal mining regulation that JFS relied on in
its    summary     judgment    motion,    though   the      regulation   was    not
contemporaneously cited as a reason for rescinding Cannon’s offer. See 30
C.F.R. § 57.20001 (“Intoxicating beverages and narcotics shall not be permitted
or used in or around mines. Persons under the influence of alcohol or narcotics
shall not be permitted on the job.”). Putting aside unresolved questions about
the scope of the rule (what proximity to a mine satisfies the “around mines”
standard given that Cannon was not going to be working in the mine), it only
applies to those “under the influence” of narcotics and not just those with a
prescription who may no longer be using. It is also not clear from the record
how long Ultram would remain in Cannon’s system even if he used it after
working hours. For comparison’s sake, just as the regulation sensibly bars
persons “under the influence of alcohol” from a mine, it does not bar those who
have ever consumed alcohol or who do so at home the night before a shift.
        The next essential function that JFS found disqualifying is climbing a
ladder.     This time Cannon agrees that the field engineer job requires the
ability to climb a ladder.    The job site includes steep pipeline trenches and
“pipe racks” that require ladders. But there is conflicting evidence about
whether Cannon can climb the ladder with reasonable accommodation.
Cannon’s doctor submitted a medical release to JFS stating that Cannon
“specifically is cleared for climbing vertical ladders and maintaining 3-point
contact with either arm” despite the shoulder injury. And after learning that
JFS rescinded his job offer based on its belief that the shoulder injury would
prevent him from climbing a ladder, Cannon submitted a video of himself
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                                   No. 15-20127
climbing a ladder while maintaining 3-point contact. Cannon conceded at his
deposition, however, that in the video he raised his injured arm above his
shoulder in violation of his doctor’s orders. See Alexander v. Northland Inn,

, 727 (8th Cir. 2003) (“The ADA does not require an employer to
permit an employee to perform a job function that the employee’s physician
has forbidden.”).
         In light of the doctor’s note and video, we are unable to conclude that
there is no evidence supporting the view that Cannon can limb a ladder despite
his impairment. The parties may have been able to get to the bottom of the
“ladder climbing” question if JFS had conducted a more thorough inquiry after
learning about Cannon’s injury. For example, it could have questioned Cannon
or his doctor at the time or asked Cannon to demonstrate an ability to climb a
ladder. Given the speed at which JFS rescinded Cannon’s offer, the record is
thin. Because there is some evidence that supports a finding that Cannon
could perform this function, summary judgment is not appropriate on this
basis.
                                        C.
         That leaves pretext as the remaining basis on which the district court
ruled in JFS’s favor.          Summary judgment rulings in employment
discrimination cases based on circumstantial evidence often boil down to
difficult assessments of pretext. Not so in this ADA case. The district court’s
finding of no pretext flowed logically from its conclusions that Cannon was not
disabled and not qualified: “There can be no pretext when the facts show that
Cannon was disqualified for the job and not disabled.” Our contrary view that
the evidence does not compel those findings also easily resolves the remaining
McDonnell-Douglas inquiries.
         Perhaps the better way to frame the question is whether JFC has
asserted a legitimate nondiscriminatory reason for rescinding Cannon’s offer,
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a burden that is usually easily satisfied. But JFS has never cited a reason for
rescinding Cannon’s offer, such as deciding to reduce the workforce at the site
or having found a more experienced applicant, which is divorced from his
physical impairment. It has always maintained—and the timing of events
strongly supports—that it decided not to hire Cannon once it learned of his
shoulder injury and the ways in which it may limit his ability to perform the
job. The legitimacy of that justification turns on whether Cannon was disabled
and qualified for the job. If JFS convinces a jury that Cannon cannot perform
essential functions of the job because of the injury, then it has offered a lawful
reason for its decision. But if the jury credits the evidence we have cited
favoring Cannon and concludes he was disabled, yet still qualified to be a field
engineer, then revoking Cannon’s job offer based on his physical impairment
would have constituted the discrimination that the ADA forbids. We thus need
not to address Cannon’s arguments about alleged inconsistencies in who made
the decision to rescind his offer, the contemporaneous justification for doing so,
and whether the decision was withheld from Cannon while other JFS
employees were asking him for more information. All of this can, of course, be
considered at trial.
                                      IV.
      This leaves one wrinkle. In dismissing the disability discrimination
claim, the district court did not separately address a failure-to-accommodate
claim that the summary judgment briefing addressed. This omission may have
been because the findings of “no disability” and “no qualified individual” would
also doom a failure-to-accommodate claim.          See 

(explaining that a plaintiff must be a “qualified individual” to sustain a failure-
to-accommodate claim). Or perhaps it was because JFS had previously filed a
motion to dismiss arguing that Cannon’s complaint did not allege failure to
accommodate. But the district court never decided that motion to dismiss (to
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which the response had sought leave to amend in the event the motion was
granted), and the case proceeded to the summary judgment stage at which both
sides argued the merits of such a claim in both the trial court and on appeal.
      Given that the district court never dismissed the claim for pleading
deficiencies, we can assess only whether summary judgment was warranted
on a claim of failure to accommodate. We have already found that Cannon may
be able to convince a jury that he is both disabled and qualified for the position.
Although a plaintiff must usually request an accommodation to commence an
interactive process that considers that possibility, he is excused from doing so
in a situation like this one in which the employer was unquestionably aware
of the disability and had received a report from its own doctor recommending
accommodations. Taylor v. Principal Fin. Grp., LLC, 

, 165 (5th Cir.
2009) (stating that a plaintiff bears the responsibility of requesting an
accommodation only when “the disability, resulting limitations, and necessary
reasonable accommodations are not open, obvious, and apparent to the
employer”). And looking at the facts in Cannon’s favor, there is little argument
to be made that JFS engaged in the interactive process the law requires. It
rescinded the offer almost immediately after learning of Cannon’s impairment
without further exploration of his impairment or even waiting for his responses
to the questions posed by the Occupational Health Department.


                                   *    *    *
      We REVERSE the grant of summary judgment and REMAND this case.




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