Employment Law — Federal Court — Temporal proximity between employee’s FMLA leave and termination not sufficient to establish retaliation

Employment discrimination — Americans with Disabilities Act
— Family Medical Leave Act — No error in entering summary judgment in favor of
former employer who dismissed plaintiff from employment as commercial truck
driver after plaintiff was diagnosed as suffering from alcoholism — Plaintiff
was not qualified individual under ADA, as he was not entitled to drive
commercial truck under Department of Transportation regulations, which prohibit
anyone with a “current diagnosis of alcoholism” from driving commercial trucks
— Claims of interference and retaliation under FMLA also fail — Interference
claim fails because evidence established that employer would have discharged
plaintiff regardless of his FMLA leave — Retaliation claim fails where
plaintiff could not establish that employer’s decision to terminate plaintiff
was causally related to FMLA leave — Temporal proximity between FMLA leave and
discharge is not, standing alone, sufficient to establish causal connection, and
there was no showing that individual who made decision to terminate plaintiff
had actual knowledge that plaintiff was on FMLA leave and that termination
occurred as plaintiff attempted to return from that leave

SAKARI JARVELA, Plaintiff-Appellant, v. CRETE CARRIER CORPORATION,
Defendant-Appellee. 11th Circuit. Case No. 13-11601. June 18, 2014. Appeal from
the U.S. District Court for the Northern District of Georgia (No.
1:11-cv-02486-SCJ).

(Before TJOFLAT, COX, and ALARCÓN,* Circuit Judges.)

(PER CURIAM.)

Many Americans suffer from alcoholism. Sakera Jarvela, a commercial truck
driver, is one of those individuals. Department of Transportation (DOT)
regulations prohibit anyone with a “current clinical diagnosis of alcoholism”
from driving commercial trucks. Jarvela’s employer, Crete Carrier Corporation,
contends that it maintains a company policy that prohibits it from employing
anyone who has had a diagnosis of alcoholism within the past five years. Crete
maintains that this safety-based rule is a business necessity. Thus, after
Jarvela’s physician diagnosed him as suffering from alcoholism, Crete dismissed
him — citing both the DOT regulations and its company policy. Jarvela
subsequently filed suit against Crete, alleging that Crete violated both the
Americans with Disabilities Act of 1990 (ADA) and the Family Medical Leave Act
of 1993 (FMLA) by terminating him. The district court granted summary judgment
in favor of Crete on all of Jarvela’s claims, and Jarvela appeals. We affirm.

Jarvela filed suit against Crete in the Northern District of Georgia. In
Count I, Jarvela alleged that Crete discriminated against him based on his
disability — alcoholism — in violation of the ADA. In Count II, Jarvela
alleged FMLA interference and retaliation claims against Crete for failing to
return him to his former job or an equivalent position following his
FMLA-qualified leave. Following the close of discovery, Crete filed a motion for
summary judgment on all of Jarvela’s claims. Jarvela responded, after which the
district court granted summary judgment in favor of Crete on all claims. (Doc.
40). The district court held that Jarvela could not establish a prima facie case
under the ADA because he could not establish that he was a “qualified
individual”. And the district court found Jarvela’s FMLA interference claim to
be meritless because there was “ample, unrebutted evidence in the record to
indicate that Crete would have discharged [Jarvela] upon learning of his
diagnosis of alcohol dependence” regardless of his FMLA leave. (Doc. 40 at 19).
The court found Jarvela’s FMLA retaliation claim meritless because Jarvela
failed to show the required causal connection to establish a prima facie case.
Jarvela appeals.

Crete employed Jarvela as a commercial truck driver from around November 2003
until April 2010.1 At some point in that
time, Jarvela developed a problem with alcohol abuse. In March 2010 he sought
treatment. His personal physician diagnosed him as suffering from alcoholism and
referred him to an intensive outpatient treatment program. Jarvela then notified
Crete of his need for FMLA leave, and Crete approved leave from March 18, 2010,
until June 6, 2010. Jarvela completed his treatment program on April 20, 2010,
and immediately sought to return to work — a month and a half after his
original diagnosis of alcoholism. But Crete’s vice president for safety, Ray
Coulter, decided that Jarvela no longer met the qualifications to be a
commercial truck driver for Crete. Coulter terminated Jarvela’s employment —
leading to the present suit.

Simply put, the principal issue on appeal is whether Crete violated the ADA
by terminating Jarvela. To determine this, we first address whether Jarvela is a
qualified individual under the ADA. Furthermore, to answer that question we must
address who makes the final decision on whether he is a qualified individual —
his medical provider or his employer.

Jarvela also takes issue with the district court’s grant of summary judgment
in favor of Crete on his FMLA claims. We briefly address this issue.

We review a district court’s grant of summary judgment de novo, drawing all
reasonable inferences in the light most favorable to the nonmoving party.
Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).

Jarvela asserts a number of contentions in his briefs. But the most pertinent
one is the contention that he was a “qualified individual” under the ADA. Crete
rebuts this contention, instead arguing that Jarvela was not a qualified
individual under the ADA because he was not qualified to be a commercial truck
driver for Crete under either DOT regulations or Crete’s company policy.

Jarvela also contends that Crete interfered with his rights under the FMLA by
failing to return him to the same or an equivalent position upon returning from
FMLA leave. And, Jarvela contends that Crete retaliated against him by
terminating him for availing himself of his rights under the FMLA. Crete
contends that it did not interfere with his rights under the FMLA, because it
would have terminated him regardless of his FMLA leave. And Crete further
contends that Jarvela failed to show the necessary causal connection to show
retaliation.

In order to state a prima facie claim under the ADA, a plaintiff must show
three things: (1) he is disabled; (2) he is a qualified individual; and (3) he
suffered unlawful discrimination because of his disability. Pritchard v.
Southern Co. Serv., 92 F.3d 1130, 1132 (11th Cir. 1996). The dispositive
factor in this case is the second one: whether Jarvela was a qualified
individual.

A qualified individual under the ADA is one who “satisfies the requisite
skill, experience, education and other job-related requirements of the
employment position such individual holds or desires and with, or without
reasonable accommodation, can perform the essential functions of such position.”
29 C.F.R. § 1630.2(m).2 An employer’s
written job description is considered evidence of the essential functions of a
particular position. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th
Cir. 2000) (citing 42 U.S.C. § 12111(8)). Here, the job description for
Jarvela’s position states that an essential duty is that the employee qualifies
as a commercial driver pursuant to both DOT regulations and Crete company
policies. (Doc. 33-6). This is the crux of the dispute in this case: whether
Jarvela qualified under DOT regulations and Crete company policy.

The DOT regulations specify that a person is not qualified to drive a
commercial motor vehicle if he has a “current clinical diagnosis of alcoholism.”
49 C.F.R. § 391.41(b)(4). The DOT regulations provide only minimal guidance on
what constitutes a “current clinical diagnosis of alcoholism.” The regulations
only say that “[t]he term ‘current clinical diagnosis’ is specifically designed
to encompass a current alcoholic illness or those instances where the
individual’s physical condition has not fully stabilized, regardless of the time
element.” 49 C.F.R. § 391.43. This provision provides little guidance. When the
words in a regulation are not clear, and neither Congress nor an agency has
given guidance as to their meaning, we interpret the words in accordance with
their ordinary meaning except for terms of art. See Garcia
v. Vanguard Car Rental USA, Inc., 540 F.3d 1242 at 1246-47 (11th Cir.
2008) [21 Fla. L. Weekly Fed. C1001a] (discussing statutory interpretation,
which in this case is applicable to the interpretation of the DOT regulation). A
term of art uses words in a technical sense within a certain field of expertise.
See United States v. Cuomo, 525 F.2d 1285, 1291 (5th Cir. 1976). “Current
clinical diagnosis” — as a whole — is not a term of art within either the
transportation or medical communities. “Clinical diagnosis” is, however, a term
of art within the medical community; it simply means “a diagnosis made from a
study of the signs and symptoms of a disease.” See Stedman’s Medical
Dictionary 110620 (27th ed. 2000). “Current” is a word with ordinary
meaning; it simply means “occurring in or existing at the present time.”
Current Definition, Merriam-Webster.com,
http://www.merriam-webster.com/dictionary/current (last visited June 3, 2014).
So, we interpret a “current clinical diagnosis of alcoholism” in this case to
mean that an individual suffers from alcohol dependency.

Whether Jarvela was a qualified individual turns on whether he had a current
clinical diagnosis of alcoholism. The DOT regulations make clear that an
employer makes the final determination of who is a qualified individual to drive
a commercial truck. See 49 CFR § 391.11(a). But the regulations do not
say who makes the final determination of whether an employee has a current
clinical diagnosis of alcoholism — even though someone cannot be qualified to
drive a commercial truck if they suffer from such a diagnosis.

Jarvela contends that only a DOT medical examiner could determine whether he
had a current clinical diagnosis of alcoholism. And Jarvela argues, a DOT
medical examiner implicitly found that he did not suffer from a current clinical
diagnosis of alcoholism because the examiner issued him a six-month medical
certificate. A DOT certified examiner is supposed to issue a medical certificate
only if an individual is medically qualified to drive a commercial truck. 49 CFR
§ 391.43(f). And the DOT regulations explicitly provide that someone who suffers
from a current clinical diagnosis of alcoholism is not medically qualified to
drive a commercial truck. 49 CFR § 391.41(b)(13). Crete disagrees with Jarvela
and contends that an employer must make the final determination of whether an
employee suffers from a current clinical diagnosis of alcoholism.

Crete has the better argument. As we just mentioned, DOT regulations
unambiguously place the burden on an employer to ensure that an employee meets
all qualification standards. 49 CFR § 391.11(a). In fact, the regulations
provide that a motor carrier “shall not require or permit a person to
drive a commercial motor vehicle” unless the person is qualified to drive one.
Id. (emphasis added). And a person is only qualified to drive a
commercial motor vehicle if he has no “current clinical diagnosis of
alcoholism.” See 49 CFR § 391.41(b)(13). Since the regulations place the
onus on the employer to make sure each employee is qualified to drive a
commercial vehicle, the employer must determine whether someone suffers from a
current clinical diagnosis of alcoholism.3

Here, Crete did just that. Crete decided that Jarvela was not qualified under
DOT regulations to drive a commercial truck because he had a current clinical
diagnosis of alcoholism. The district court found no fault with Crete’s
determination. And we find no fault with the district court’s determination
upholding Crete’s.

The DOT regulations explicitly provide that its rules establish “minimum
qualifications” for drivers of commercial motor vehicles and “minimum duties of
motor carriers with respect to the qualifications of their drivers.” 49 C.F.R. §
391.1(a); see also 49 C.F.R. § 390.3(d) (“[n]othing in [the DOT
regulations] shall be construed to prohibit an employer from requiring and
enforcing more stringent requirements relating to safety of operation and
employee safety and health.”). Jarvela conceded this point in the district
court. (Doc. 36 at 10).

Crete maintains that it established, pursuant to these regulations, a more
stringent company policy prohibiting it from employing anyone as a commercial
truck driver who has been diagnosed within the past five years as suffering from
alcoholism. Because we determined that Jarvela was not entitled to drive a
commercial truck under the DOT regulations, we need not address whether Crete’s
company policy also supports that determination.

Jarvela also asserted two FMLA claims against Crete: an interference claim
and a retaliation claim.

In order to state an interference claim under the FMLA, an employee need only
demonstrate by a preponderance of the evidence that he was entitled to a benefit
the employer denied. Strickland v. Water Works and Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1205 (11th Cir. 2001). An employee has the right
following FMLA leave “to be restored by the employer to the position of
employment held by the employee when the leave commenced” or to an equivalent
position. 29 U.S.C. § 2614(a)(1)(A); see also 29 C.F.R. § 825.214(a). But
an employer can deny reinstatement following FMLA leave if it can demonstrate
that it would have discharged the employee even if he had not been on FMLA
leave. See Martin
v. Brevard Cnty. Public Schools, 543 F.3d 1261, 1267 (11th Cir. 2008)
[21 Fla. L. Weekly Fed. C1132a]; see also 29 U.S.C. § 2614(a)(3); 29
C.F.R. § 825.216(a).

Here, Jarvela contends that Crete improperly denied him the benefit of
returning to the same or an equivalent position following his FMLA leave. Crete
instead contends that it would have discharged Jarvela upon his diagnosis of
alcoholism regardless of whether he took FMLA leave. The district court found
that “Regardless of whether Mr. Jarvela had taken FMLA leave, there [was] ample,
unrebutted evidence in the record to indicate that Crete would have discharged
him upon learning of his diagnosis of alcohol dependence.” (Doc. 40 at 19).
Crete put forward evidence that it would have discharged Jarvela regardless of
his FMLA leave, and Jarvela presented no evidence disputing it. Consequently, we
agree with the district court’s determination that Jarvela’s interference claim
fails.

The FMLA prohibits an employer from discriminating against an employee for
exercising a right under the FMLA. 29 U.S.C. § 2615(a)(2). To establish a prima
facie case of retaliation under the FMLA, an employee must show that “(1) he
engaged in statutorily protected activity, (2) he suffered an adverse employment
decision, and (3) the decision was causally related to the protected activity.”
Martin, 543 F.3d at 1268. The district court held that Jarvela failed on
the third prong of this test; he could not show that Crete’s decision to
terminate him was causally related to his FMLA leave.

Jarvela argues that two factors sufficiently establish a causal connection:
Coulter — Crete’s vice president who fired him — had access to his personal
file containing a notation that he was out on FMLA leave and that his
termination occurred as he attempted to return from FMLA leave. Crete argues
that Coulter did not have actual knowledge that Jarvela was returning from FMLA
leave.

Crete again has the better position. Coulter said that he played no part in
approving Jarvela’s FMLA leave request and that he was unaware Jarvela had taken
FMLA leave. (Doc. 36-12 at 19-20). And he said that he only reviewed certain
parts of Jarvela’s records before terminating him and that none of the parts he
reviewed mentioned Jarvela’s FMLA leave. (Doc. 36-12 at 112). Furthermore,
Jarvela concedes that two of the most important documents Coulter relied on in
terminating Jarvela — a letter from Jarvela’s alcohol treatment counselor and a
discharge form from Jarvela’s treatment program — did not mention in any way
the FMLA. (Appellant’s Initial Br. at 77). Jarvela bore the burden to prove
actual knowledge. And he presented no evidence to rebut Coulter’s testimony.
Temporal proximity alone is insufficient to establish a causal connection in the
absence of actual knowledge by Coulter. Krutzig v. Pulte Home Corp., 602
F.3d 1231, 1235 (11th Cir. 2010). Accordingly, summary judgment in favor of
Crete on Jarvela’s retaliation claim was properly granted.

We affirm summary judgment in favor of Crete on all claims.

AFFIRMED.

__________________

*The Honorable Arthur L. Alarcón, United States Circuit Judge for the United
States Court of Appeals for the Ninth Circuit, sitting by designation.

1Crete did not employ Jarvela for a brief
period that lasted from late 2007 to early 2008.

2Jarvela also argues that Crete failed to
make reasonable accommodations. (Appellant’s Initial Br. at 73). But the
argument Jarvela presents on appeal is not the one he made before the district
court. Compare Appellant’s Initial Br. at 73 (arguing that allowing
Jarvela to drive with a six-month certification was the only accommodation
needed), with Doc. 36 at 22-24 (arguing before the district court that a
transfer to a different driving position would be a reasonable accommodation and
never mentioning the six-month certification as an accommodation). Jarvela has
waived this issue. See Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004) [17 Fla. L. Weekly Fed. C1064a].

3This means, of course, that an employer’s
determination may differ from a medical provider’s. For instance, if two medical
providers come to different conclusions, the employer must decide with whom it
agrees — necessarily disagreeing with one provider’s conclusion. The employer
bears ultimate responsibility for making this determination.