CHICAGO — The U.S. Seventh Circuit Court of Appeals has put the brakes on an appeal from a former bus driver who said the Chicago Transit Authority illegally fired him for being obese, finding the man’s weight didn’t qualify him for Americans with Disabilities Act protections.
Mark Richardson started working for the CTA as a temporary driver in 1999, and had a full-time job from August 1999 through February 2012. CTA medical records indicate Richardson weighed 350 pounds in January 2005 and 566 pounds in May 2009. Given Richardson’s height, his body mass index reading indicates extreme obesity at 315 pounds or more; he also has hypertension and sleep apnea, court documents said.
The CTA Disability Review Committee first put Richardson on temporary leave in April 2010 when he weighed more than 400 pounds, had the flu and couldn’t lower his blood pressure. He completed a driving ability assessment in September 2010 before returning to work — a requirement for all drivers weighing more than 400 pounds — and though he was found unfit to drive, the CTA proposed transferring him so he could work with doctors to lose weight.
Taylor Muzzy
| Jacobs Burns Orlove & Hernandez
Though Richardson rejected that offer, the CTA transferred him in March 2011. In October 2011 the CTA told him he was approaching two years of inactivity and offered to extend his time in the transferred area for a year provided he submit medical documentation. He failed to do so, and the CTA fired him in 2012. He filed his wrongful termination complaint in March 2016.
In November 2017, U.S. District Judge John Robert Blakey granted the CTA’s motion for judgment, finding extreme obesity only qualifies as a disability under the ADA when caused by an underlying physiological disorder or condition, and said Richardson offered no evidence to that effect.
Seventh Circuit Judges Joel Flaum, Michael Kanne and Michael Scudder heard Richardson’s appeal on May 14. Flaum wrote the opinion issued June 12.
“Three of our sister circuits have considered the question” of whether extreme obesity warrants ADA protection, Flaum wrote, each upholding the requirement for an underlying condition. But Richardson focused his appeal on the 2008 ADA amendments intended to broaden the Act’s definition of disability, which he argued incorporates extreme obesity even without a physiological condition.
Flaum said the panel disagreed, noting the Equal Employment Opportunity Commission didn’t modify its regulations defining what constitutes impairment and even after the 2008 ADA amendments, “the definition of physical impairment remains inextricably tied to a ‘physiological disorder or condition.’ ”
The panel further disagreed with Richardson’s interpretation of EEOC guidelines on obesity, explaining his reading could open protection for an employee of normal weight who complained of a weight-based impairment based on an underlying condition, while “any employee whose weight — or other physical characteristic — is even slightly outside the 'normal range' would have a physical impairment even with no underlying physiological cause,” Flaum wrote. “Such results are inconsistent with the ADA’s text and purpose and must be rejected.”
He also argued that even if the panel rejected ADA protection based on the obesity alone, it should find him disabled under the ADA because the CTA perceived him to have a physical impairment. But Flaum said Richardson failed to “present sufficient evidence to permit a reasonable jury to infer that CTA perceived his extreme obesity was caused by an underlying physiological disorder or condition.”
The panel also rejected Richardson’s objections about the costs assessed to him as a result of Blakey’s summary judgment. Flaum wrote that Blakey clearly stated why the CTA was entitled to compensation and “provided an accounting of how (he) calculated costs at $2,067.26 (significantly less than CTA’s initial $7,333.56 request).”
Richardson has been represented in the case by attorneys Taylor E. Muzzy, Sherrie E. Voyles and Colin J. Burns, of the firm of Jacobs, Burns, Orlove & Hernandez, of Chicago.
The CTA has been represented by lawyers from the CTA Law Department.