Armstrong v. Turner Industries ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30104
JEFF ARMSTRONG,
Plaintiff-Appellant,
versus
TURNER INDUSTRIES, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the
Middle District of Louisiana, Baton Rouge
May 14, 1998
Before GARWOOD, DUHÉ and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Jeff Armstrong (Armstrong) appeals the
magistrate judge’s grant of summary judgment in favor of defendant-
appellee Turner Industries, Ltd. (Turner).
Facts and Proceedings Below
Armstrong filed this suit after unsuccessfully seeking
employment as a pipefitter with Turner, alleging that Turner had
discriminated against him on the basis of disability in violation
of Title I of the Americans with Disabilities Act (ADA). 42 U.S.C.
§§ 12101 to 12117. Armstrong’s suit asserted two distinct claims.
First, he alleged that he was denied employment because he was
perceived as being disabled. Second, he alleged that he was
subjected to a pre-offer medical examination and inquiry in
violation of section 12112(d). The parties consented to proceeding
before a magistrate judge under 28 U.S.C. § 636(c). The magistrate
judge granted summary judgment in favor of Turner on both claims.
Armstrong timely brought this appeal, challenging only the
dismissal of the second claim. Because Armstrong has failed to
demonstrate that he is entitled to relief in the form of damages,
and because he lacks standing to seek injunctive or declaratory
relief, we affirm.
I. Factual Background
On June 24, 1994, Armstrong applied for a position with Turner
Industries as a pipefitter.1 Upon presenting himself for
consideration at Turner’s personnel office, Armstrong was
administered a written, skill-based qualification examination. He
successfully completed the examination,2 and was told to return
after lunch to finish the application process. Upon returning, he
was given several pages of paperwork to fill out. Among the
application forms was a "Second Injury Fund Questionnaire"
(Questionnaire). The first page of the Questionnaire contained the
1
As noted by the magistrate judge, there is some ambiguity in the
record as to the precise date on which Armstrong applied.
Armstrong v. Turner Industries, Ltd., 950 F. Supp. 162, 163 n.3
(M.D. La. 1996). Because the dates are not relevant to the issues
on appeal, we assume for convenience that Armstrong applied on the
date that is listed on the "Second Injury Fund Questionnaire" that
Armstrong filled out on the day of the events in question (June 24,
1994).
2
There is no dispute regarding Armstrong’s qualifications as a
pipefitter. Armstrong, 950 F. Supp. at 164 n.4.
2
inquiry: "Are you bothered with or have you ever had the
following," followed by a list of approximately seventy ailments
ranging from arthritis to vertigo. The applicant was instructed to
answer with respect to each of the illnesses listed. On the second
page of the Questionnaire there were several broad, general
questions regarding the applicant’s medical history, including
whether the applicant had ever been "a patient in a hospital or
clinic," had ever had surgery, or had ever been hospitalized "for
nervous trouble." It also asked about the applicant’s worker’s
compensation history. The last question on the form was: "Have
you ever had any injury or condition not mentioned on this form?"
In filling out the form, Armstrong indicated that he had not
received, nor was there a claim pending for, workers’ compensation,
and that he did not have any "injury or condition not mentioned" on
the form.3
When he had finished filling out the forms, Armstrong and
several other prospective employees were taken to a different part
of the building for a brief medical examination. Each applicant
was visually inspected for scars indicating previous surgery or
3
Armstrong also signed an affirmation appearing at the bottom of the
page that read in part:
"I have read the above and declare that I have had no
injury, illness, or ailment other than as specifically
herein noted. I certify that all information is true and
accurate to the best of my knowledge. I understand that
any falsification or misrepresentation will be sufficient
grounds for my release from employment."
3
serious injury and was asked to provide a urine sample.4 While
these examinations were being conducted, employees of Turner ran
"background checks" on each applicant to verify the medical
information provided on the application forms.5
Armstrong’s background check indicated that a "possible
asbestos exposure" had been reported in 1991. His completed
Questionnaire made no mention of any medical impairment or
condition having to do with asbestos exposure. The medic who had
conducted the visual examinations subsequently brought Armstrong
back into the examination room and informed him of the perceived
discrepancy between the answers provided on the Questionnaire and
the results of the background check. Armstrong was informed that
his failure to list the asbestos exposure on the Questionnaire
constituted a "falsification" of the form and that his application
for employment was being rejected due to the provision of incorrect
and/or incomplete information.
4
The visual inspection required the removal of most or all of the
applicant’s clothing and was conducted in a private examination
room. The record seems to indicate that the applicants’ saliva may
also have been tested for signs of recent alcohol use. This,
however, appears to be the extent of the "examination." There is
no indication in the record that any other tests or procedures
often associated with medical examinations (e.g., measurement of
heart rate, blood pressure, body weight, etc.) were conducted.
5
The precise nature of the background check performed is unclear
from the record and briefs. It appears that employees of Turner
submitted the name and social security number of each applicant to
a company that had access to an informational database containing
either medical background or worker’s compensation information (or
both). Each applicant apparently signed a consent form authorizing
the background check.
4
II. Proceedings Below
On July 11, 1994, Armstrong filed a charge of discrimination
with the Equal Employment Opportunity Commission (EEOC). After
receiving a "right-to-sue" letter from the EEOC, he filed the
instant suit on November 23, 1995, alleging two separate violations
of the ADA. First, Armstrong claimed that Turner had denied him
employment because it perceived him as disabled. Second, he
alleged that he had been subjected to a preemployment medical
inquiry and examination in violation of 42 U.S.C. § 12112(d)(2) of
the ADA.6 Armstrong characterized his second claim as alleging an
independently-actionable "facial violation" of the ADA.
After limited discovery and pre-trial activity, Turner moved
for summary judgment. With respect to Armstrong’s failure-to-hire
claim, Turner asserted that Armstrong was denied employment solely
because he had failed to provide accurate information in filling
out the Questionnaire, and not, as Armstrong alleged, because
Turner had in any way perceived him as being disabled or because he
had a record of disability.7 In moving for summary judgment on
6
Section 12112(d)(2) provides that until a conditional offer of
employment has been extended to an applicant, "a covered entity
shall not 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 of such disability."
Section 12112(d)(1) provides that the general prohibition against
discrimination on the basis of disability, contained in section
12112(a), "shall include medical inquiries and examinations."
7
In addition to the summary judgment motion itself, Turner provided
a legal memorandum in support of the motion and both testimonial
(in affidavit and deposition form) and documentary evidence tending
to demonstrate that whenever a discrepancy between the information
5
Armstrong’s second claim, Turner argued that because Armstrong was
not "disabled" within the meaning of the statute, he lacked
standing to maintain a cause of action based on Turner’s alleged
violation of the ADA’s prohibition of preemployment medical
examinations and inquiries.
Properly viewing the evidence before him in the light most
favorable to Armstrong, the magistrate judge determined that "[t]he
summary judgment evidence shows that the defendant did not form any
attitudes or beliefs about the plaintiff’s ability to function at
work once the possible asbestos exposure was discovered. The only
belief formed was the belief that the plaintiff did not truthfully
answer the questions on the [Questionnaire]." Armstrong, 950
F. Supp. at 165. The magistrate judge further concluded that there
was simply "no evidence that the defendant perceived the
plaintiff’s exposure to asbestos as substantially limiting him in
his ability to work or engage in any other major life activity."
Id. at 166. Accordingly, the magistrate judge granted summary
judgment in favor of Turner on the refusal-to-hire claim.8
In ruling on the second claim, the magistrate judge noted the
provided in the application process and the information generated
through the "background checks" and limited medical examination was
discovered, the applicant or employee who had provided the
incomplete or erroneous information was denied employment or
discharged from employment.
8
There was no assertion, nor any evidence, that Armstrong had (or
that Turner believed he had) a record of an impairment that
substantially limited one or more major life activities so as to
come within the section 12102(2)(B) definition of disability.
6
"absence of any controlling or persuasive authority" on the
question of whether the ADA provides a private right of action to
a nondisabled individual who had been subjected to a preemployment
medical examination or inquiry in violation of section
12112(d)(2).9 Lacking apposite caselaw, the court proceeded to
construe the provision in light of its text, purpose, and
legislative history, concluding that "the most reasonable
interpretation of [§ 12112(d)(2)] is that if a separate claim can
be brought for violation of this section, it must be brought by a
qualified individual with a disability as that term is defined by
the ADA." Id. at 167. As the court had already determined that
Armstrong was not disabled within the meaning of the ADA, it
granted summary judgment in favor of Turner on Armstrong’s second
claim and dismissed the case.
III. Question Presented on Appeal
Armstrong appeals only the magistrate judge’s ruling that the
ADA does not provide him, as a nondisabled plaintiff, a private
right of action to redress Turner’s alleged violation of section
9
The magistrate judge stated that the "parties did not cite and the
court did not find any cases specifically addressing the
question whether an individual [such as Armstrong] who does not
meet any of the three alternative definitions of disability may
maintain a claim for violation of the ADA’s standards regarding
medical inquiries during the job application process." Armstrong,
950 F. Supp. at 166 (footnotes omitted).
The magistrate judge noted that Armstrong claimed there was “a
genuine dispute . . . whether defendant made a conditional offer of
employment before asking him to provide a medical history and
submit to a medical examination,” id. at 163, but did not
ultimately resolve that issue. However, Turner concedes that the
record does reflect a factual dispute in that one respect.
7
12112(d)(2)(A). Armstrong has abandoned his failure-to-hire claim
on appeal and does not challenge the magistrate judge’s
determination that Turner’s refusal to employ him was not motivated
by disability. Likewise, he does not dispute the conclusion that
he is not disabled within the meaning of the ADA; nor does he
challenge the determination that he was never "perceived as" or
"regarded as" being disabled by Turner. And he has never claimed
that he had (or that Turner believed he had) a record of having a
disabling impairment within section 12102(2)(B).
As a result, on appeal Armstrong raises the single, discrete
legal question whether the ADA provides a private right of action
for nondisabled job applicants who are subjected to preemployment
medical examinations and inquiries in violation of section
12112(d)(2)(A). He asserts that the magistrate judge erred in his
statutory construction of this provision and urges this Court to
reverse on that basis.
This appears to be a question of first impression among the
circuit courts,10 and involves difficult issues of statutory
interpretation. We are not unmindful either of the significance of
this issue or of the inevitability and necessity of its resolution
10
See Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d
1221, 1229 n.5 (10th Cir. 1997) (declining to decide whether the
ADA provides a cause of action to an unsuccessful job applicant
subjected to a prohibited inquiry). The question, however, has now
been decided by a few district courts. See, e.g., Griffin v.
Steeltek, Inc. 964 F. Supp. 317 (N.D. Okla. 1997) (holding that the
ADA does not provide a right of action for nondisabled job
applicants who are subjected to preemployment medical examinations
and inquiries in violation of section 12112(d)(2)).
8
in an appropriate case. Nevertheless, we choose to unravel here
only a few of the many strands interwoven in the tangle of issues
that envelops the question presented.
Our partial reticence is occasioned by the policies of
judicial restraint. See Manning v. Upjohn Co., 862 F.2d 545, 547
(5th Cir. 1989). As explained below, we find that, in the context
of this case, Armstrong has not demonstrated any injury redressable
by damages, and he lacks standing to seek declaratory and
injunctive relief, so dismissal of his section 12112(d)(2)(A) claim
was proper in any event, whether or not in some other context a
nondisabled individual might be afforded judicial relief in respect
to a section 12112(d)(2)(A) violation.
Discussion
Armstrong and amicus EEOC both urge us to reverse the lower
court’s grant of summary judgment by construing section 12112(d) as
providing Armstrong, and other potential litigants, a private right
of action irrespective of disability. Neither address with any
specificity what injury Armstrong seeks to redress or what remedy
would be appropriate. At oral argument, the EEOC suggested that
this Court first determine that the ADA grants Armstrong a cause of
action, thereby reversing the lower court, and then remand for the
determination of appropriate remedies.
However, we conclude that Armstrong has failed to allege any
compensable injury and lacks standing to seek injunctive or
declaratory relief, and, consequently, that any ruling by this
Court as to whether Armstrong has, in the abstract, a cause of
9
action would ultimately be irrelevant to the disposition of this
lawsuit. While the EEOC is correct in asserting that a
determination as to the availability or existence of a cause of
action may be made in isolation, without considering what relief
may (or may not) be available to the plaintiff in the particular
case under consideration, the converse proposition is also true
(and, in the case at bar, provides the appropriate framework for
the resolution of Armstrong’s appeal).11 As the Supreme Court
recognized in Davis v. Passman, 99 S. Ct. 2264, 2274 (1979), "the
question whether a litigant has a ‘cause of action’ is analytically
distinct and prior to the question of what relief, if any, a
litigant may be entitled to receive." The Court elaborated on this
distinction, stating that "cause of action is a question of whether
a particular plaintiff is a member of the class of litigants that
11
For purposes of deciding a particular case, courts of appeal will
occasionally assume arguendo a variety of questions, including,
inter alia, standing to assert a claim, the existence of a cause of
action, a material disputed fact, etc. And just as a court may
assume the prudential standing of a litigant to assert a particular
claim so that it may dispose of a case on the merits, it may assume
the merits to dispose of the case on the question of remedies.
See, e.g., Omnitech International, Inc. v. Clorox Co., 11 F.3d
1316, 1323 (5th Cir. 1994) (court of appeals assumed litigant’s
standing to assert claim, as well as a fact material to the
controversy, in order to reach and resolve case on grounds other
than those relied on by the trial court); Channer v. Hall, 112 F.3d
214, 217 (5th Cir. 1997) (Court would "assume, arguendo, that the
Thirteenth Amendment directly gives rise to a cause of action for
damages under the analysis articulated in Bivens."); State of Texas
v. United States, 106 F.3d 661, 664 n.2 (5th Cir. 1997) ("For
purposes of today’s disposition, we assume, without deciding, that
the plaintiffs have standing."); Cole v. United States Dep’t of
Agriculture, 133 F.3d 803, 808 n.6 (11th Cir. 1998) ("Because we
readily resolve the merits of the case, we assume arguendo that
Cole has standing" and "has not waived the issue" in question.).
10
may, as a matter of law, appropriately invoke the power of the
court; and relief is a question of the various remedies a federal
court may make available." Id. at 2274 n.18. The Davis court also
noted that, precisely because the "cause of action" inquiry is
distinct from the "remedies" question, it is logically consistent
for a litigant to have a cause of action but lack a remedy. The
appropriate resolution of such a case is summary dismissal. As the
Court stated, "[a]lthough petitioner has a cause of action, her
complaint might nevertheless be dismissed under Rule 12(b)(6)
unless it can be determined that judicial relief is available."12
Applying this analysis to the appeal before us, we choose to
temporarily sever the "analytically distinct" question of whether
the ADA provides Armstrong a cause of action in the abstract from
the question of what remedies, if any, would be available to
Armstrong assuming there were a cause of action, considering the
issues in reverse order. In proceeding in this manner, we
temporarily (and solely for purposes of discussion) assume
(arguendo) both that, as Armstrong asserts, the ADA provides him
with a private right of action and that he has adequately
established a violation of 42 U.S.C. § 12112(d)(2)(A).
12
Id. at 2276. Discussing this "analytical distinction" set out in
Davis v. Passman, Justice Brennan elaborated on the issue of
dismissal, stating that "if the plaintiff fails either to plead a
cause of action or to demonstrate the damages are appropriate as a
matter of law, the complaint is dismissed under Federal Rule of
Civil Procedure 12(b)(6). In the first instance, the complaint is
dismissed for ‘failure to state a claim,’ while in the latter
instance, the complaint is dismissed because it is not one ‘upon
which relief can be granted.’" United States v. Stanley, 107 S. Ct.
3054, 3069 n.7 (Brennan, J., dissenting in part).
11
I. Remedies
In enacting the ADA, Congress provided that the remedies and
procedures for ADA claims are those that have been provided under
Title VII. Buchanan, 85 F.3d at 200. Title I of the ADA, which
deals with employment discrimination, allows a private right of
action to "any person alleging discrimination on the basis of
disability in violation of any provision of this chapter, or [of]
regulations promulgated [by the EEOC] . . . , concerning
employment." Section 12117(a).
Albemarle Paper Co. v. Moody, 95 S. Ct. 2362 (1975), remains
the seminal case defining the remedies appropriate under Title VII.
In Albemarle, the Court established the general rule that in
crafting remedies for employment discrimination individuals injured
by such discrimination are "to be placed, as near as may be, in the
situation [they] would have occupied if the wrong had not been
committed." Id. at 2372. This is described as the "make whole"
purpose of Title VII. Id. Although Albemarle was a Title VII
case, the principles stated therein provide a useful starting point
for consideration of the remedial aspects of all federal employment
discrimination laws.13
II. Cognizable Injuries
13
See Robert Belton, Remedies in Employment Discrimination Law § 3.9
(1992) ("Although [Albemarle] and Franks [v.Bowman Transp. Co.]
were decided in the context of Title VII, their substantive
principles are, as a general rule, equally applicable as a useful
starting points in resolving remedial issues in cases brought under
section 1981, the ADEA, and the Equal Pay Act cases.") (footnotes
omitted).
12
Under the "make whole" remedial theory, a court’s first task
is to determine the injuries caused by discrimination that require
judicial relief. In other words, the court must ascertain in what
way the plaintiff is not “whole.” In the vast majority of
employment discrimination cases, the asserted injury is an adverse
employment decision (e.g., refusal to hire, denial of promotion, or
wrongful discharge), allegedly caused by or "because of"
discrimination on the basis of a prohibited characteristic or trait
such as gender, race, religion, national origin, age, or
disability. In this sense, the case sub judice, at least as
presented on appeal, presents an atypical and uncommon suit.
Although the original complaint did allege an adverse employment
action——Turner’s refusal to hire Armstrong due to perceived
disability——this claim was rejected by the court below and that
ruling has not been challenged on appeal.14 The magistrate judge
determined that there was no evidence indicating the employment
action in question was tainted by disability discrimination, and
consequently it does not constitute a compensable injury.15
14
The original complaint also alleged damages flowing from the
allegedly discriminatory refusal to hire, including "substantial
loss of income," "emotional distress," "pain and suffering."
Because Armstrong chose not to appeal the magistrate judge’s ruling
that Turner’s refusal to hire him was not, in any part, "because
of" unlawful discrimination, he has waived this claim and neither
the adverse employment decision, nor the consequential injuries,
alleged below can constitute a compensable injury unless they were
proximately "caused" by the specific ADA violation asserted on
appeal.
15
The court below concluded that the "only belief [Turner] formed was
that [Armstrong] did not truthfully answer the questions on the
13
Armstrong does not challenge this conclusion on appeal.16
[application] form." Armstrong, 950 F. Supp. at 165 (emphasis
added). Turner did not perceive or regard Armstrong as disabled or
substantially impaired in any way. Id. Further the court
determined that the "summary judgment evidence shows that [Turner]
did not form any attitudes or beliefs about the plaintiff’s ability
to function at work once the possible asbestos exposure was
discovered." Id. In sum, the court below concluded that the
information revealed by the unlawful medical inquiry did not lead
Turner to deny Armstrong employment "because of disability," but
rather because of the perception that he "did not truthfully answer
the questions on the form." Id. at 165. Armstrong has not
asserted that these conclusions are incorrect or that the record
reflects a genuine dispute of material fact as to them.
16
It might be argued that because the medical inquiry revealed the
discrepancy between the information provided by Armstrong and the
information in the "background check," the inquiry "caused"
Armstrong not to be hired. In fact, amicus EEOC does make a
related argument in their brief, asserting that "Turner’s failure
to hire Armstrong was caused by its adverse reaction to Armstrong’s
medical information." This assertion is not consistent with the
unchallenged determination of the court below regarding Turner’s
motivation, but even if the EEOC’s contention were correct, it
would not alter the outcome of this appeal. As we made clear in
Buchanan v. City of San Antonio, 85 F.3d 196 (5th Cir. 1996), a
"causal link" must be established "between the specific ADA
violations [alleged] . . . and the injuries sustained," for which
a plaintiff seeks damages. Id. at 200. Under Buchanan, if section
12112(d)(2)(A) were to give rise to a private right of action, any
concomitant liability would be limited by familiar tort principles
such as "proximate cause." It is a well-established principle of
tort law that violation of a statute will not give rise to
liability for resulting injuries unless, inter alia, the plaintiff
was a member of the class of individuals the statute was intended
to protect, and the injury was of the type contemplated by the
statute and resulted from the hazard against which the statute was
intended to protect. See Restatement (Second) of Torts §§ 286 and
874A (1965). See also Gavagan v. United States, 955 F.2d 1016 at
1020-21 (5th Cir. 1992).
In the case at bar, the harm caused, i.e., an adverse
employment decision, clearly falls within the class of harms
covered by Title I of the ADA. However, this harm did not result
from one of the particular "hazards" against which the ADA was
intended to protect (i.e., employment discrimination on the basis
of disability). The magistrate judge determined, and Armstrong
does not assert otherwise, that Turner’s decision was not caused by
an unlawful discriminatory motive. Thus, although the medical
inquiry may be construed as having been, in a purely mechanistic
14
Although it is unclear, it appears that Armstrong implicitly
argues (or assumes) that a violation of section 12112(d)(2)(A)
constitutes a compensable injury in fact. We reject this reading
of the provision. This Court has been unable to find any
indication either in the text of the ADA or in its legislative
history that a violation of the prohibition against preemployment
medical examinations and inquiries, in and of itself, was intended
to give rise to damages liability.17 This is consistent with the
general analysis and reasoning of our decision in Buchanan, which
dealt with an alleged violation of the same provision that is at
sense, a cause of Turner’s refusal to employ Armstrong, it was not,
in the general tort sense, a legal or proximate cause of Turner’s
decision and thus does not constitute a compensable injury. The
ADA simply cannot be reasonably construed as having been intended
to protect a nondisabled job applicant from not being hired because
a potential employer, incident to a prohibited section
12112(d)(2)(A) inquiry, either learns that the applicant has an
embezzlement or murder conviction or believes, correctly or
incorrectly, that the applicant has not been completely honest and
forthcoming during the job application process. Moreover, in such
cases, including this one, it is obviously irrelevant to the
resulting failure to employ that the inquiry was not preceded by a
conditional employment offer under section 12112(d)(3).
As we stated in the context of a similar federal
antidiscrimination statute, the ADA "cannot protect . . . employees
from erroneous or even arbitrary personnel decisions, but only from
decisions which are unlawfully motivated." Bienkowski v. American
Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir.1988) (ADEA case).
17
The magistrate judge found "nothing in the legislative history
which supports the conclusion that Congress intended any job
applicant to have a cause of action for violation of the ADA rules
on preemployment examinations and inquiries." Armstrong, 950
F. Supp. at 167. Likewise, we are unable to find any support for
the proposition that a violation of the section 12112(d), standing
alone, was intended to give rise to damages liability.
15
issue here.18 We find this approach to be consonant with the
structure of the ADA as well as the principles embodied in the
18
The general analysis in Buchanan seems to imply——or at least is
susceptible to the reading——that a mere violation of section
12112(d)(2)(A) is insufficient to give rise to liability absent the
existence of an actual injury of which the violation is a legal and
proximate cause. In Buchanan, the plaintiff was a patrolman for
the Bexar County Sheriff’s Department who repeatedly applied and
was rejected for a position on the San Antonio police force. 85
F.3d at 197. Eventually Buchanan filed suit alleging that he had
been discriminated against on the basis of disability. The case
went to trial, and, at the end of plaintiff’s evidence, Buchanan
moved for and was granted judgment as a matter of law based on two
specific violations of section 12112(d). Id. at 198. The court
submitted two special interrogatories to the jury on the issues of
causation and amount of damages. Id. The jury answered "yes" to
the first interrogatory, which asked whether Buchanan had
"sustained damages from [the defendant’s] violation of the [ADA],"
and granted $300,000 in compensatory damages. Id. In addition to
the $300,000 in compensatory damages, the district court awarded
back pay, attorneys’ fees, and post-judgment interest. Id.
On appeal, this Court concluded that Armstrong had, as a
matter of law, established a violation of section 12112(d)(2). Id.
at 199. We then went on to briefly discuss the predicates of a
damages claim based on a violation of that subsection. Id. at 199-
200. We began by stating that "[a] further gap in support of
[the] judgment is the absence of proof of damage, even if the other
predicates had been established, caused by a premature medical
examination." Id. at 199-200 (emphasis added). We observed that
"compensatory damages, like other damages, are not recoverable
under Title VII (and derivatively under the ADA) unless the
prohibited employment practice was the cause of the applicant’s
rejection." Id. at 200 (footnote omitted). In discussing the
possible injuries for which Buchanan might receive compensation, we
mentioned only those associated with the adverse employment
decision alleged. We made no mention of any possibility that
Buchanan might receive relief in the form of damages absent proof
of actual injury, and we plainly assumed precisely the opposite.
In the case at bar, Armstrong has not alleged any actual
injury flowing from the alleged section 12112(d)(2)(A) violation,
nor has he directed this Court’s attention to any basis for any
damages relief. In fact, at oral argument before this Court,
Armstrong’s counsel seemed to admit that, for this very reason,
Armstrong was not entitled to damages relief.
16
statute.19 Consequently, we hold that damages liability under
section 12112(d)(2)(A) must be based on something more than a mere
violation of that provision. There must be some cognizable injury
in fact of which the violation is a legal and proximate cause for
damages to arise from a single violation.20
This exhausts the various bases for a damages claim by
Armstrong.21 Because Armstrong has not identified a cognizable and
19
We note that in what appears to be the only reported case
construing the Rehabilitation Act regulations on which section
12112(d) is based the court came to a similar conclusion. See Doe
v. Syracuse School Dist., 508 F. Supp. 333 (N.D.N.Y. 1981)
(violative preemployment inquiry held to be "persuasive evidence"
of alleged employment discrimination, but medical inquiry did not,
in and of itself, constitute discriminatory conduct so as to be
compensable under the Rehabilitation Act).
20
This holding can also be explained as an application of the "make
whole" purpose of Title VII remedies. Armstrong is entitled to no
remedy because he has not been injured and has no need of being
made "whole." Suppose Armstrong had been hired and then
brought a suit based on the premature medical examination. To what
relief would he be entitled? A "make whole" remedial scheme would
not provide him with a damages remedy because he already occupies
(in the hypothetical) precisely the same position that he would
have occupied absent the unlawful employment practice. Similarly,
where a plaintiff cannot demonstrate actual injury, providing a
damages remedy for a violation of section 12112(d)(2)(A) would
appear to be inconsistent with the "make whole" theory of equitable
relief espoused in Albemarle. Accordingly, we hold that a mere
violation of section 12112(d)(2)(A) does not automatically, or per
se, give rise to damages liability. We do not, however, foreclose
the possibility of liability based on any injuries legally and
proximately caused by such a violation.
21
He did not allege (or present summary judgment evidence of) any
injury, other than discussed above, arising out of the alleged
section 12112(d)(2)(A) violation, and he has not alleged (or
presented summary judgment evidence of) actions exhibiting "malice
or reckless indifference" even remotely sufficient to approach the
type of conduct required to support punitive damages.
17
compensable injury arising out of the medical examination and
inquiry, or alleged any corresponding damages, he has completely
failed to demonstrate any entitlement to a damages remedy.
IV. Availability of Injunctive Relief
The lack of an available damages remedy does not dispose
entirely of Armstrong’s appeal, for he seeks equitable relief as
well. In his complaint, Armstrong requested "[i]njunctive relief
ordering Turner Industries to cease requiring prospective employees
to complete medical data in their applications." In oral argument
to this Court, Armstrong’s counsel reiterated this request, arguing
that Armstrong is entitled "as a job applicant" to have employers
abide by the proscription of section 12112(d)(2)(A) and that
Armstrong is entitled to an injunction ordering Turner to "cease
and desist from using this employment practice." However,
Armstrong has failed to meet the prerequisites for asserting
injunctive relief, and we hold that he lacks the requisite standing
to seek either injunctive or declaratory relief.
We consider as a threshold matter Armstrong’s standing to seek
equitable relief.22 The Supreme Court articulated the
constitutional "preconditions for asserting an injunctive claim in
22
Brown v. Edwards, 721 F.2d 1442, 1446 (5th Cir. 1984). As stated
in Warth v. Seldin, 95 S. Ct. 2197, 2205 (1975), the federal
"judicial power exists only to redress or otherwise to protect
against injury to the complaining party." We recently re-
emphasized the "case or controversy" requirement that is at the
root of the standing doctrine in Plumley v. Landmark Chevrolet,
Inc., 122 F.3d 308, 312 (5th Cir. 1997), where we stated that to
maintain suit, including one for declaratory or injunctive relief,
a plaintiff "must show that an actual case or controversy under the
ADA exists."
18
a federal forum" in City of Los Angeles v. Lyons, 103 S. Ct. 1660,
1669 (1983), holding that to "satisfy the threshold requirement
imposed by Art. III of the Constitution,” a plaintiff seeking
injunctive relief must "show that he ‘has sustained or is
immediately in danger of sustaining some direct injury’ as the
result of the challenged . . . conduct."23 The Court also clarified
that "[p]ast wrongs do not in themselves amount to that real and
immediate threat of injury necessary to make out a case or
controversy."24
The application of this limitation of standing to seek
injunctive relief in the Title VII context is illustrated by Fair
Employment Council of Greater Washington, Inc. v. BMC Marketing
Corp., 28 F.3d 1268 (D.C. Cir. 1994), a case that is, in several
relevant respects, analogous to the one sub judice. Fair
Employment Council involved suspected violations of Title VII by an
employment referral service. In order to demonstrate the
discrimination, two black college students were hired by the Fair
Employment Council to act as "testers." The two minority testers
23
Id. at 1665 (citations omitted). Additionally, "the injury or
threat of injury must be both real and immediate, not [merely]
conjectural or hypothetical." Id. (citations and internal
quotation marks omitted).
24
Id. at 1666. This prerequisite to bringing a claim for injunctive
relief was recently reiterated in Luhan v. Defenders of Wildlife,
112 S. Ct. 2130 (1992), where the Court held that "’[p]ast
exposure to illegal conduct does not in itself show a present case
or controversy regarding injunctive relief . . . if unaccompanied
by any continuing, present adverse effects.’" Id. at 2138 (quoting
O’Shea v. Littleton, 94 S. Ct. 669, 676 (1974)).
19
were paired with two white testers, "equipped with fake credentials
intended to be comparable," and instructed to seek employment
referrals from the agency. Id. at 1270. Although all four testers
presented similar credentials and qualifications, both of the white
but neither of the black testers received job referrals. Id. On
the basis of this disparate treatment, the Fair Employment Council
and the two black testers brought suit in federal district court
under Title VII.
In determining whether the two testers had standing to pursue
prospective equitable relief enjoining future discrimination by the
defendant employment agency, the court of appeals held the Lyons
rule applicable, stating that "[t]o pursue an injunction or a
declaratory judgment, the [plaintiffs] must allege a likelihood of
future violations of their rights by [the defendant], not simply
future effects from past violations." Id. at 1273. Because the
testers did not allege that they personally would again suffer
injury from, or be subjected to, the defendant’s allegedly illegal
behavior, the court held that they lacked standing to seek
prospective equitable relief in the form of an injunction. Id. at
1272-74.
Both the reasoning and holding of Fair Employment Council are
directly applicable to the case at bar. Armstrong, like the
testers, has alleged only a single, past statutory violation and
does not assert any likelihood that he will be subjected to a
similar violation in the future. He has not indicated that he
plans to seek employment with Turner again, nor does he purport to
20
represent a specific class of individuals that is in danger of
discrimination from Turner. Consequently, Armstrong’s allegations
are clearly insufficient under well-established law to support
standing to seek an injunction.25 Although Armstrong did ask for
declaratory relief, we note that for the same reason he lacks
standing to procure injunctive relief he likewise has no standing
to seek declaratory relief. See, e.g., Brown v. Edwards, 721 F.2d
at 1447; Fair Employment Council of Greater Washington, Inc., 28
F.3d at 1272-1274; Plumley v. Landmark Chevrolet, Inc., 122 F.3d
308 at 312 (5th Cir. 1997). Armstrong has failed to allege any
probability of future injury, and consequently lacks standing to
seek prospective relief precluding Turner from future violations of
section 12112(d)(2).26
25
The requirement articulated in Lyons is cited with relative
frequency in cases denying injunctive relief. See, e.g., Society
of Separationists, Inc. v. Herman, 959 F.2d 1283, 1286 (5th Cir.
1992); Brown v. Edwards, 721 F.2d 1442, 1446-47 (5th Cir.1984).
Cf. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 n.3 (5th Cir.
1996) (“Jurisdiction over a plaintiff’s claims for future relief is
appropriate only if a reasonable likelihood exists that the
plaintiff will again be subjected to the allegedly unconstitutional
actions.”).
26
The lack of any probable future harm distinguishes the case at bar
from Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d
1221 (10th Cir. 1997), in which the Tenth Circuit held that an
employee had standing to challenge her current employer’s
imposition of a drug disclosure and testing policy. The plaintiff
asserted that the drug disclosure policy violated the ADA’s
prohibition of medical inquiries by employers contained in 42
U.S.C. § 12112(d)(4)(A) and sought an injunction enjoining
enforcement of the policy. The court held that the plaintiff in
Roe had standing to challenge the medical inquiry because she faced
imminent injury if she refused to abide by the policy, and a
favorable decision of the court——in particular an injunction
prohibiting enforcement of the drug disclosure policy——would clearly
21
Conclusion
For the foregoing reasons, the district court’s dismissal of
Armstrong’s suit is
AFFIRMED.
serve to prevent this injury. Id. at 1229.
22