The Fifth Circuit reversed a summary judgment, but the district court ruling was by Judge Lynn Hughes in Houston. So, perhaps that is not so surprising, after all. I have written about Judge Hughes before here and here. In the case of Cannon v. Jacobs Field Services North America, Inc., No. 15-20127 (5th Cir. 1/13/2016), Michael A. Cannon was an engineer. He applied for a job as a field engineer with Jacobs Field Services. He was offered a job, at which point, the company sent him for a pre-employment physical exam. Mr. Cannon told the company doctor about his inoperable form rotator cuff. The injury prevented him from lifting his right arm above his head. He was given a drug test which he passed. he had taken the pain killer, Tramadol in the past but not recently. The doctor cleared Mr. Cannon for the job, so long as he did not drive any company vehicles, did not lift or push anything heavier than 10 pounds, and he did not work with his hands above shoulder level.

Jacobs did not accept these limitations. Instead, it decided that he was not physically capable of performing the duties of the position. HR contacted the work site, where the technical services manager said Mr. Cannon could not perform the functions of the job. Yet, at the same time, HR also notified Mr. Cannon that Jacobs only had concerns that he could not raise his right hand above his head. He would have difficulty climbing ladders, he was told. Mr. Cannon contacted OSHA to see if there might be a problem. He also made a video showing him climbing a ladder with three point contact. He also provided medical information about his condition.

No one at Jacobs contacted his doctors to ask for clarification. Instead, the company rescinded the job offer. Mr. Cannon filed suit. He alleged he was fired for disability based discrimination and because he was regarded as impaired. The employer moved for summary judgment. Judge Hughes granted the motion. Judge Hughes, however, relied on pre-Amercans with Disabilities Amendment Act decisions to find he was not regarded as disabled. As the Fifth Circuit pointed out, the new standard is not whether a person is regarded as having a major life activity which is impaired, but whether he is is simply regarded as having a physical impairment. The new standard sets a lower bar. The ADAAA has been in effect since September, 2009. It is surprising indeed that Judge Hughes would not catch this error.

The lower court construed Mr. Cannon’s testimony that he compensates for his weak right arm with greater use of his left arm to mean that the engineer was not impaired at all. The court rightly noted that is an extreme interpretation of his testimony and not in keeping with summary judgment analysis.

The lower court also said Mr. Cannon did not suffer from a disability. Yet, there was substantial evidence that he could not lift heavy objects. Lifting and reaching are major life activities, said the court. The plaintiff was clearly impaired in those areas. As the court noted, this was not even disputed.

The lower court even disregarded the fact that he passed the drug test with the observation that he passed the test “this time.” Noted the court, there was no evidence that 1) he was still using the pain killer, and 2) that even if he used it, that he used it conjunction with work or on a work site. The district court assumed facts in favor of the movant, not against the movant.

Judge Hughes found that driving was an essential function of the job. He ruled that Mr. Cannon could not perform this essential function. The work sites were spread out over the countryside. But, Mr. Cannon disputed that driving was an essential function.  Even so, there was adequate evidence that he could indeed drive.

There was a factual dispute about whether Mr. Cannon could climb a ladder with accommodation. But, said the court, since the company ended the interactive process early, there was a “thin”record regarding his ability to do so or not.

Regarding the issue of pretext, the court noted that Jacobs offered no nondiscriminatory reason for withdrawing the job offer. It never claimed, for example, that it had to reduce its work force or that income had decreased. The simple timing suggests the job offer was withdrawn due to concerns about his impairment.

And, so Judge Hughes is again reversed.