Epileptic Employee Who Stopped Taking Medication Loses ADA Claim

An epileptic applicant could not establish disability discrimination by United States Steel Corp. (USS) when he was denied a utility person position after stopping his anti-seizure medication, the 7th U.S. Circuit Court of Appeals ruled.

Before the plaintiff applied to work at USS's Midwest plant, he had experienced three or four seizures during his lifetime. The first occurred when he was 8 years old and the second when he was 22. His third seizure happened in June 2014 and was followed two months later by what may have been either a heat-related illness or a fourth seizure.

After the June 2014 seizure, the plaintiff began seeing a neurologist, who determined that the plaintiff's seizure disorder was not well-controlled and prescribed him Trileptal. The plaintiff experienced negative side effects from the drug and stopped taking it. After the possible seizure in August 2014, the neurologist switched the plaintiff to a medication called Depakote. By the end of October 2014, the neurologist thought the seizure disorder was well-controlled with Depakote.

In 2016, the plaintiff asked the neurologist if he could stop taking Depakote. The neurologist noted that the plaintiff had a sister with seizures and thus was at a higher risk of having seizures in the future. He did not recommend that the plaintiff stop the medication, and the plaintiff stayed on Depakote for another year.

In 2017, the plaintiff again asked his neurologist if he could stop taking Depakote, and his neurologist relented. A few months later, in May 2017, the plaintiff applied to work as a utility person at USS's Midwest plant. The position involved operating equipment; using torches, shovels and other hand tools; and controlling mobile equipment in a heavy industrial environment. It was a safety-sensitive and safety-critical position. Its duties included handling, transporting and processing products and materials; working with hazardous chemicals; and working near molten metal. After training, a utility person is expected to move into a utility technician position, which includes operating overhead and mobile cranes of various sizes and types as well as tractors, trucks, dozers, loaders, boom trucks and feeders.

The plaintiff received an employment offer contingent upon passing a pre-placement fitness-for-duty examination. A nurse practitioner conducted the exam in May 2017. The plaintiff revealed that he had a history of seizures and had stopped taking Depakote.

The nurse practitioner sought information from the treating neurologist to determine diagnosis, plan of care and if the condition was compliant with medication. The neurologist returned the form indicating that he did not expect his medical findings to affect safety or health related to the job. He did not otherwise respond to the nurse practitioner's request for information.

As part of its assessment, USS considered the requirements of the U.S. Department of Transportation's Federal Motor Carrier Safety Administration Medical Handbook. The handbook requires an unmedicated driver to be seizure-free for 10 years, or eight years with special permission, and that the driver's medication be stable for two years.

Based on these regulations, the nurse practitioner and the USS medical director determined that the plaintiff could work only if he avoided jobs higher than 5 feet; extensive stairs, ladders and free climbing; exposure to hazardous machinery; and operating cranes or mobile equipment. The restrictions were sent to HR, which concluded that they could not be accommodated. In July 2017, USS notified the plaintiff that, based on the results of his fitness-for-duty examination, his offer of employment was rescinded.

The plaintiff sued USS under the Americans with Disabilities Act (ADA), claiming that USS illegally discriminated against him when it rescinded his job offer. USS filed a motion for summary judgment, which the district court granted. The plaintiff appealed to the 7th Circuit.

The 7th Circuit determined that it was USS's burden to show that the qualification standards were necessary to prevent a direct threat to health and safety in the workplace. The plaintiff claimed USS did not perform an individualized assessment of his condition. The 7th Circuit found, however, that the assessment was sufficiently individualized because the plaintiff's seizure disorder was uncontrolled by medication. It noted that the neurologist did not approve of the plaintiff's decision to stop taking Depakote. Because the disorder was uncontrolled when he applied at USS, the plaintiff was at a high risk for a seizure, which supported USS's decision.

For these reasons, the 7th Circuit upheld the grant of summary judgment to USS.

Pontinen v. United States Steel Corp., 7th Cir., No 21-1612 (Feb. 11, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.