NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 4, 2010*
Decided November 5, 2010
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐2318
JIMMY DENTON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 05 C 1032
CHICAGO TRANSIT AUTHORITY,
Defendant‐Appellee. Charles R. Norgle, Sr.,
Judge.
O R D E R
Under the Americans with Disabilities Act, job‐related medical tests may be given to
employees but not applicants.
42 U.S.C. § 12112(d)(2),(4)(A). Jimmy Denton, a former
employee of the Chicago Transit Authority, sued the agency under the ADA for unlawfully
subjecting him to a preemployment medical examination. The district court rejected his
position and entered summary judgment for the CTA. We conclude the district court
properly classified Denton as an employee during the period in question, and affirm the
judgment.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 10‐2318 Page 2
Before automated fare cards, the CTA employed “collectors” to obtain fares from
riders, make change, and issue transfers. The need for the position diminished in the early
1980s with the advent of electronic fare machines, and the ranks of collectors dwindled for
decades until the CTA finally eliminated the position in December 2003, by which point
only one collector remained on the payroll—Jimmy Denton, a 37‐year veteran of the CTA.
Denton received a letter notifying him that the CTA would no longer staff collectors and
directing him to report for a medical examination to determine his fitness for a new position
in the bus‐operations unit, either as a driver or a box puller. The letter went on to note that
Denton, an hourly worker, would be compensated for time spent away from work on the
day of the meeting.
Denton reported to the CTA as scheduled but refused to undergo the drug‐and‐
alcohol portion of the medical examination. He then sat down to discuss his options with a
union representative and an employee‐relations official. A summary of the meeting, signed
by Denton, reflects that the CTA gave him a week to decide whether to undergo the
examination. The CTA warned Denton that he would not be compensated for missed hours
in the interim, and that failing to report back with a decision could result in disciplinary
action, including discharge. According to the summary of the meeting, Denton was told
that the CTA was “not directing in any way your retirement,” but that he must complete a
medical test before transferring to another position within the bus‐operations unit. Denton
never contacted the CTA with his decision, and then failed to respond to two separate
letters directing him to report to the CTA’s general manager. (He alleges that he never
received the letters). The CTA discharged Denton in February 2004, one month after he
refused the medical test.
Denton sued the CTA for violating the ADA’s prohibition against preemployment
medical testing. See
42 U.S.C. § 12112(d)(2). Alternatively, he claimed that the CTA’s
medical examination is unlawful because, he argues, it is neither job‐related nor consistent
with business necessity, as required under the ADA. See
Id. § 12112(d)(4)(A). The district
court rejected both claims and entered summary judgment for the CTA. Denton, the court
explained, was still employed by the CTA during the time period in question, and thus was
subject to medical testing under § 12112(d)(2). Moreover, the court ruled that a wholesale
attack on the medical‐examination policy lacked merit because the CTA was required by
federal law to test the physical fitness of employees in the bus‐operations unit.
On appeal Denton maintains that the CTA unlawfully subjected him to a
preemployment medical test. He challenges the district court’s finding that he was
employed at the time the CTA asked him to submit to a medical examination. He insists
No. 10‐2318 Page 3
that his employment ended when the CTA phased out his job, and that the CTA was
prohibited from conditioning future employment on his completing a medical examination.
The ADA governs when and how employers may subject individuals to medical
testing. Employers covered under the ADA generally may not subject job applicants to
medical examinations.
42 U.S.C. § 12112(d)(2)(A). Employers have more latitude, however,
when testing employees, and may require a medical examination if the examination is “job‐
related” and “consistent with business necessity.”
Id. § 12112(d)(4)(A). The success of
Denton’s suit thus turns on how the term “employee” under the ADA has been interpreted.
Because the statute does not specifically define the circumstances constituting the employer‐
employee relationship, courts look either to the express agreement of the parties or to
common‐law principles of agency. See Clackamas Gastroenterology Assocs. v. Wells,
538 U.S.
440, 449‐450 (2003); Lopez v. Massachusetts,
588 F.3d 69, 83 (1st Cir. 2009); Solon v. Kaplan,
398
F.3d 629, 632 (7th Cir. 2005).
With these principles in mind, we agree with the district court that Denton’s attempt
to categorize himself as an applicant is unpersuasive. The correspondence between the
CTA and Denton following the elimination of the collector position provides strong
evidence that Denton was still under the control of the CTA, as required under the common
law master‐servant test. See Clackamas,
538 U.S. at 448. For instance, the letter notifying
Denton of the change does not mention termination, only reassignment, and sets out
conditions of continued employment. The letter directs Denton to report for a medical
examination, and assures him that the CTA will compensate for missed work hours.
Further, an employee‐relations official told Denton that he was being transferred, not forced
into retirement. The CTA also sent two additional letters directing Denton to report and
threatening disciplinary action if he failed to do so.
Denton argues that even if he were a CTA employee when he was asked to take the
examination, summary judgment was still improper because the CTA’s policy of testing the
fitness of bus‐operation employees violates the ADA in that it is neither job‐related nor
consistent with business necessity. But Denton admitted at summary judgment in his
statement of undisputed material facts that the CTA and its operations personnel are subject
to Department of Transportation safety standards, see
49 C.F.R. § 391.41(b), and that the
CTA’s medical‐examination policy tracks the DOT regulations. The Supreme Court has
recognized that an employer may rely on DOT medical qualifications in defining the
essential job functions of a commercial driver, see Albertson’s, Inc. v. Kirkingburg,
527 U.S.
555, 570‐72 (1999), and we think it uncontroversial that the CTA serves business necessity
by testing the fitness of employees in the bus‐operations unit. See Shannon v. New York City
Transit Auth.,
332 F.3d 95, 102‐03 (2d Cir. 2003); Tice v. Centre Area Transp. Auth.,
247 F.3d
506, 517‐18 (3d Cir. 2001).
AFFIRMED.
