7th Circuit: No disability violation against man with seizure disorder who lost job offer

A federal court didn’t err when it awarded summary judgment to a major steel producer who rescinded a job offer to a man with an uncontrolled seizure disorder, the 7th Circuit Court of Appeals has ruled.

Russell Pontinen has experienced three or four seizures during his lifetime and began seeing a neurologist in 2014. After a possible seizure in August of that year, Dr. Abu‐Aita put him on medication.

Each February from 2015 to 2017, Pontinen saw Abu-Aita for follow‐up appointments. During those appointments, Pontinen repeatedly asked his doctor to take him off the medication, but the neurologist told him he needed to take it due to having a higher risk of having seizures at any time.

But in 2017, Abu‐Aita relented, determining, “Since it is his decision to get off the medication I will reduce the Depakote 1000 mg every night for a month and if no seizures to 500 mg every night for a month and if no seizure to stop it.”

A few months later, Pontinen applied to work as a “utility person” at United States Steel Corporation’s Midwest Plant in Portage. Those who hold the position “operate … equipment and perform tasks that support the various production and service units.” Additionally, they perform “general labor duties that include the use of torches, shovels and other hand tools,” and control “mobile equipment, in a heavy industrial environment,” which is “safety‐sensitive” and “safety‐critical.”

Pontinen received an employment offer that was contingent upon passing a pre‐placement fitness‐for‐duty examination. Before the exam, he disclosed on a health form that he’d had four seizures in his life. Then, during the examination, nurse practitioner Jennifer Ntovas wrote Pontinen had “stopped Depakote [without] neurologist approval.”

Ntovas then sought information from Abu‐Aita, who returned the form with a box checked that indicated his medical findings “are not expected to affect the safety or health as it relates to the job.” He also had Pontinen undergo an EEG, a form of a brain scan, which found “no focal, lateralized, or epileptiform discharge noted” — a normal result.

Another consideration USS makes in assessing whether an applicant is qualified for the utility person position is whether they meet the requirements of the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration Medical Handbook, which sets certain physical qualifications for drivers of commercial motor vehicles. One such qualification is that the driver “[h]as no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a commercial motor vehicle.”

Generally, the regulations require an unmedicated driver to be seizure‐free for 10 years. However, a driver with a diagnosed seizure disorder can apply for a reduction of the requirement to eight seizure‐free years, on or off medication. If the driver is taking medication, the type, dosage and frequency must be stable for two years.

Based upon the DOT regulations, the health form, the physical examination and Abu‐Aita’s response and treatment notes, Ntovas and USS Medical Director Dr. Philippa Norman determined work restrictions for Pontinen, which the U.S. Steel human resources department determined could not be accommodated. Thus, in July 2017, USS notified Pontinen that “based on the results of [his] pre‐placement fitness for duty examination,” his offer of employment was rescinded.

Pontinen sued USS in the U.S. District Court for the Northern District of Indiana for disability discrimination under the Americans with Disabilities Act. He argued USS illegally discriminated against him on the basis of a real or perceived disability when it rescinded his employment offer.

The steel producer filed a motion for summary judgment, which the district court granted because Pontinen’s “uncontrolled epileptic condition would have posed a direct threat to the health and safety of himself and others while working at USS.”

On appeal, the 7th Circuit determined USS provided undisputed evidence that if it hired Pontinen for the position, his seizure disorder would pose a direct threat to himself and others at the steel plant.

“Because all of the factors weigh in favor of finding that there is a direct threat, we are compelled to reach that conclusion,” Judge Michael Kanne wrote for the 7th Circuit, citing Branham v. Snow, 392 F.3d 896 (7th Cir. 2004), throughout the Friday opinion. “While Pontinen can point to a few pieces of evidence that support the idea that he has been doing well, he cannot point to evidence that creates a genuine dispute of material fact with regard to whether USS’s decision to rescind his employment offer because he constituted a threat to himself and others was proper.”

The case is Russell Pontinen v. United States Steel Corporation, 21‐1612.

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