Jeff Armstrong, Plaintiff-appellant, v. Turner Industries, Inc., Defendant-appellee, 141 F.3d 554 (5th Cir. 1998)

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.

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 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 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.

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 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 "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.

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 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 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 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, 442 U.S. 228, 239, 99 S. Ct. 2264, 2274, 60 L. Ed. 2d 846 (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 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 239 n. 18, 99 S. Ct. 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).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, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (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 418-19, 95 S. Ct. 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 

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  Armstrong does not challenge this conclusion on appeal.¹⁶ 

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 issue here.¹⁸  We find this approach to be consonant with the structure of the ADA as well as the principles embodied in the 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 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.

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 a federal forum" in City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S. Ct. 1660, 1669, 75 L. Ed. 2d 675 (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 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 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 

Conclusion

For the foregoing reasons, the district court's dismissal of Armstrong's suit is

AFFIRMED.