                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2001

Tice v. Centre Area Transportation Authority
Precedential or Non-Precedential:

Docket 00-1753




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Filed April 23, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1753

RANDY L. TICE, Appellant

v.

CENTRE AREA TRANSPORTATION AUTHORITY;
AMERICAN FEDERATION OF STATE, COUNTY ,
AND MUNICIPAL EMPLOYEES, COUNCIL 83;
AMERICAN FEDERATION OF STATE, COUNTY ,
AND MUNICIPAL EMPLOYEES, LOCAL 1203-b

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 98-cv-01755)
District Judge: Honorable James F. McClur e, Jr.

Argued: March 8, 2001

Before: BECKER, Chief Judge, McKEE, and
STAPLETON, Circuit Judges.

(Filed: April 23, 2001)

       MICHAEL J. ZICOLELLO, ESQUIRE
        (ARGUED)
       Schemery & Zicolello
       330 Pine Street
       One Executive Plaza, Suite 201
       Williamsport, PA 17701

       Counsel for Appellant
       ROBERT L. MARTIN, ESQUIRE
       JOHN U. BAKER, ESQUIRE
        (ARGUED)
       Lee, Martin, Green & Reiter, Inc.
       101 Innovation Blvd., Suite 311
       State College, PA 16803

       Counsel for Appellee Centre Area
       Transportation Authority

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by Plaintiff Randy L. T ice from the
District Court's grant of summary judgment in favor of
Defendant Centre Area Transportation Authority of State
College (CATA) in Tice's action for damages under the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
S 12101 et seq. Tice advances thr ee claims: (1) that CATA
discriminated against him on the basis of disability by
discharging him, on a pretextual basis, in October 1996; (2)
that CATA discriminated against him by r equiring an
improper medical examination as a condition of his return
to work in June 1996; and (3) that CATA failed to safeguard
his medical records properly. This appeal requires us to
interpret for the first time the ADA's pr ovisions regarding
permissible and impermissible medical examinations and
inquiries, located at 42 U.S.C. S 12112(d).

Firstly, in deciding Tice's claim of discriminatory
discharge, we must determine whether T ice was "disabled"
within the meaning of the Act. This requir es us to decide
whether a plaintiff can establish that he is"regarded as"
disabled by his employer solely by virtue of the employer's
request for a medical examination. Secondly, in the
disposition of Tice's alternative claim that he was subject to
an improper medical examination, we must consider the
scope of the limitations placed by the ADA on employer-
mandated medical examinations and inquiries. Thir dly,
Tice's last claim requires us to consider whether a violation
of the ADA's provisions regarding the confidentiality of
medical records constitutes a per se compensable injury.

                               2
We ultimately conclude that an employer's r equest for a
medical examination, standing alone, is not sufficient to
establish that the employer "regarded" the employee as
disabled, and thus cannot itself form the basis for
establishing membership in the protected class under the
ADA. As a result, Tice's claim of discriminatory discharge
fails. We interpret the ADA to per mit medical examinations
and inquiries upon a showing by the employer of job-
relatedness and business necessity, and, because CATA
has made such a showing in this case (which T ice has
failed to rebut), we conclude that his claim of
discrimination by way of an improper medical examination
must also fail. Finally, we join several of our sister circuits
in holding that a plaintiff alleging a violation of the ADA's
recordkeeping and examination requir ements must
demonstrate the existence of some actual damage in order
to maintain his or her suit. Because Tice has not
demonstrated that he suffered any injury as a result of
CATA's recordkeeping violations, he cannot prevail on this
claim. Therefore, we will affirm the judgment of the District
Court.

I. Facts

Randy Tice has a long and checkered employment history
with CATA. Therefore, because determinations under the
ADA are quite fact-specific, we must r ecount much of the
minutiae of Tice's odyssey through CA TA's medical leave
procedures.

Tice began his employment with CAT A as a bus driver in
1988. During the relevant periods of Tice's employment,
CATA's collective bargaining agr eement (CBA) with the
American Federation of State, County and Municipal
Employees Local 1203-B (the Union) allowed employees
with serious injuries or illnesses to take up to two
consecutive years of unpaid leave (while continuing to
accrue seniority) for any single medical condition. If the
employee did not return to work after two years, the
employee would be deemed to have "voluntarily r esigned"
under the terms of the CBA. However, if an employee were
to return to work before the expiration of the two years and
then leave again for the same illness or injury, the return

                               3
would only interrupt the two-year time clock if that
employee worked for a minimum of six weeks befor e going
back on leave. CATA's policy was to r equire that after
taking such leave, the employee only be permitted to return
after submitting a "Return to Work Certificate" from a
treating physician, affirming that the employee was
physically fit to resume his or her duties.

In October 1993, Tice was injured at a McDonald's
restaurant when a utility room door opened suddenly and
struck him in the back. He continued to work until
February 1994, when he informed CAT A that back
problems resulting from the injury r equired him to take
medical leave. Tice remained on leave thr oughout 1994 and
all of 1995, except for a few brief periods when he
attempted to return to his job but quickly discovered that
his back injuries would not allow him to continue. His last
such attempt took place for several weeks fr om September
to October 1994, after which time he submitted to CA TA a
note from Dr. Wayne Stokes stating that Tice was "to be off
work until further notice and evaluation by sur geon."
Subsequently, Tice submitted periodic updates on his
condition to CATA, including a letter fr om a surgeon, Dr.
Keith Kuhlengel, recommending that Tice r eceive back
surgery. In the exchange of correspondence, CATA
reminded Tice that if he desired to return to work, he
would need to submit a doctor's note certifying that he
could perform his duties without risk.

In April 1996, Tice informed CAT A that in July he would
be undergoing the back surgery r ecommended by Dr.
Kuhlengel; however, in early June, Tice advised CATA that
he had canceled his surgery and submitted a Return to
Work Certificate, signed by Dr. Kuhlengel, stating that Tice
could return to work if given an "air ride seat with lumbar
support, power steering, lumbar work belt, 8 hr/day." The
certification did not comment on the safety of T ice's return,
either to himself or to his passengers.

CATA requested further information from Dr. Kuhlengel
before allowing Tice to retur n and, after an initial exchange
of letters, CATA informed Tice that he would be required to
submit to an Independent Medical Examination (IME)
before he could be reinstated. No CA TA employee before (or

                               4
since) had ever been required to submit to an IME after
taking medical leave, and CATA had not war ned Tice of
such a possibility in its earlier correspondence.

Tice filed a number of grievances with the Union
regarding the delay in reinstatement. At this time, Tice also
complained that CATA's method of r ecordkeeping
improperly commingled confidential medical information
with nonconfidential personnel information, in violation of
the ADA's recordkeeping requir ements. See 42 U.S.C.
S 12112(d)(4)(C). In the course of union grievance
procedures, CATA admitted that it had inadvertently failed
to comply with the ADA's recordkeeping r equirements, but
promised to modify its policies. After these violations were
remedied, the Union withdrew this grievance.

Tice submitted to the IME in August 1996, and was
diagnosed with "lumbar spondylolysis with degenerate disc
disease." The examining physician stated that with exercise
and medication, Tice would nonetheless be able to work,
and he returned to his job on August 21, 1996. He then
settled his grievance with CATA regar ding the IME. The
seniority he had accrued while on leave entitled him to bid
on driving routes with newer buses that wer e equipped with
the seating and steering accommodations he r equired.

Tice worked for CATA for a month (fr om August 1996 to
September 1996). However, on September 24, 1996, Tice
was injured in an automobile accident unr elated to his
employment with CATA, and submitted to CA TA a note
from Dr. Stokes stating that he would not be able to
continue to work because he had "sustained a shoulder
contusion and bursitis and reexacerbation of his back
pain."

In October 1996, Tice's two-year period of leave was close
to expiring because his brief return did not meet the six-
week minimum required under the CBA. CA TA informed
Tice that he would be deemed to have voluntarily resigned
if he did not return by October 24, 1996. In response, on
October 24, Tice submitted a note from one Dr. Worobec
stating that due to a rotator cuff injury incurred in the
automobile accident -- ostensibly a new injury, unrelated
to the back injury that had originally kept him out of work

                               5
-- Tice would need to refrain fr om working for another two
weeks. A few days later, CATA infor med him that it now
considered him to have resigned.

Both during his medical leave from CAT A, and after his
termination in October 1996, Tice worked part-time
cleaning and restocking for Allegheny Airlines, a job which
he held until May 1997. Upon further training, he began
work as an airline mechanic, continuing until February
1998, when he injured his knee falling fr om the cockpit of
a plane, requiring that his duties be lessened. Tice
eventually left this employment because of an inconvenient
commute. Subsequent to his employment with CA TA, Tice
also ran a ticket-sales operation out of his home.

II. Procedural History

After his termination from CAT A, Tice filed a grievance
with the Union. The case was arbitrated in April 1997. The
grievance and arbitration dealt only with Tice's allegations
that his termination violated the CBA; no char ges of ADA
violations were raised or considered. T ice claimed that his
absence from work after September 1996 was due to "new"
injuries unrelated to his initial back injury, thus entitling
him to another two years of leave. In the alter native, Tice
argued that CATA's request for an IME in June 1996 --
which resulted in a two-month delay in his r eturn to work
-- was improper, and that, had CA TA not engaged in this
impermissible action, he would have retur ned to his job in
June, thus allowing him to meet the six-week minimum
time period to stop the two-year time clock. On July 17,
1997, the arbitrator denied Tice's grievance,finding that
the IME had been proper under the CBA, and that Tice's
absence from September 1996 to October 1996 was due to
the original back injury.

In October 1998, Tice filed suit against CA TA in the
District Court for the Middle District of Pennsylvania
alleging that CATA had violated the ADA by: (1)
discriminating against him on the basis of disability by
deliberately "misclassifying" his automobile accident
injuries as "new" to justify Tice's discharge in October
1996; (2) discriminating against him by requiring an

                               6
improper medical examination as a condition of his return
to work in June 1996; and (3) failing to safeguar d his
medical records properly.1 On May 17, 2000, the District
Court granted CATA's motion for summary judgment,
holding that Tice was not disabled within the meaning of
the ADA, that CATA's request for an IME had not been
improper under the ADA, and that Tice could not maintain
his action regarding the recor dkeeping because he had
failed to demonstrate any injury as a result of the
violations. This appeal followed. The District Court had
jurisdiction pursuant to 28 U.S.C. S 1331, and we have
jurisdiction pursuant to 28 U.S.C. S 1291. W e set forth the
familiar summary judgment standard in the mar gin.2

III. Discussion

A. Improper Discharge Under the ADA

The ADA forbids employers from "discriminat[ing] against
a qualified individual with a disability because of the
disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other
terms, conditions, and privileges of employment." 42 U.S.C.
S 12112(a). Tice's first claim is that CATA discriminated
against him on the basis of disability by using his injuries
incurred in the September 1996 automobile accident as a
pretext for his discharge. To state a claim for employment
_________________________________________________________________

1. Tice also advanced claims against the Union and additional claims
against CATA, alleging, inter alia, that the Union and CATA violated the
Americans with Disabilities Act in the terms of the CBA itself, and that
the Union breached its duty of fair repr esentation. These claims were not
presented on appeal and thus are not befor e us.

2. Summary judgment is proper if ther e is no genuine issue of material
fact and if, viewing the facts in the light most favorable to the non-
moving party, the moving party is entitled to judgment as a matter of
law. See F.R.C.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). At the summary judgment stage, the judge's function is not to
weigh the evidence and determine the truth of the matter, but to
determine whether there is a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

                               7
discrimination under the ADA, a plaintiff must demonstrate
that he or she is a "qualified individual with a disability"
within the meaning of the Act, and that he or she has
suffered an adverse employment decision as a result of the
discrimination. See Taylor v. Phoenixville Sch. Dist., 184
F.3d 296, 306 (3d Cir. 1999).

A "qualified individual with a disability" is "an individual
with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires."
42 U.S.C. S 12111(8). A "disability" is defined as:

       (A) a physical or mental impairment that substantially
       limits one or more of the major life activities of such
       individual;

       (B) a record of such an impairment; or

       (C) being regarded as having such an impairment.

42 U.S.C. S 12102(2). Although the statute does not define
the term "major life activities," the EEOC has issued
regulations explaining that major life activities are
"functions such as caring for oneself, per forming manual
tasks, walking, seeing, hearing, speaking, br eathing,
learning, and working." 29 C.F.R.S 1630.2(i).3

Tice argues that he is disabled within the meaning of the
ADA because: (1) his back injury constitutes an impairment
that "substantially limits" the "major life activity" of
working; (2) he has a "record" of having such an
impairment; and (3) CATA regar ded him as having such an
impairment. We address these ar guments in turn.

1. Tice's Back Injury

In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999),
the Supreme Court interpreted the phrase"substantially
limits" as it is used in the Americans with Disabilities Act.
_________________________________________________________________

3. Although the Supreme Court has declined to rule on the degree to
which courts must defer to these regulations, see notes 4 and 8, infra,
the Court has interpreted and applied these r egulations in its own
jurisprudence. See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471
(1999).

                                8
A plaintiff attempting to establish disability on the basis of
"substantial limitation" in the major life activity of
"working" must, at minimum, allege that he or she is
"unable to work in a broad class of jobs." Id. at 491. The
Court explained that "[t]o be substantially limited in the
major life activity of working, then, one must be pr ecluded
from more than one type of job, a specialized job, or a
particular job choice." Id. at 492; see also Deane v. Pocono
Med. Ctr., 142 F.3d 138, 144 n.7 (3d Cir. 1998) (en banc).

Tice has not alleged any limitation in the "major life
activity" of working caused by his back injuries beyond his
inability to drive a bus. In fact, he could not do so: Both
before and after his termination fr om CATA, Tice found
employment with an airline, and began operating a ticket
sales business out of his home.4 He has not offered any
evidence to suggest that his back injuries have caused him
any difficulties beyond their interfer ence with his bus
driving. Instead, he argues only that if he could not perform
his bus driving duties without accommodation, "a jury
could reasonably conclude that he was significantly
restricted in the ability to perfor m either a class of jobs or
a broad range of jobs." In other wor ds, even Tice himself
cannot identify any limitations caused by his injuries
_________________________________________________________________

4. Tice argues that the District Court, in determining that he was not
disabled, improperly relied in part on his ability to find work as an
airline mechanic because, at the time CAT A's discriminatory acts were
alleged to have taken place, Tice did not have the requisite skills for
such work. It is true that under our precedent, the determination as to
whether a plaintiff is "substantially limited" in the activity of
"working"
is to be made with reference to the plaintiff 's particular skills and
training. See Mondzelewski v. Pathmark Stor es, Inc., 162 F.3d 778, 784
(3d Cir. 1998). However, we need not determine whether our holding in
Mondzelewski -- which relied, in part, on deferring to EEOC regulations
-- survives Sutton, see 527 U.S. at 479-80 (holding that the EEOC has
not been granted authority to implement the definitional portions of the
ADA, but refusing to rule on the degree of deference owed to such
regulations), or even whether Mondzelewski would control in a situation
such as the one before us, where a plaintiff receives further training
after the allegedly discriminatory acts have occurr ed. This is because
even if we disregard the mechanic position, Tice was able to find at least
two other jobs, and has failed to allege a limitation on any activity
other
than bus driving.

                               9
besides the limitation on bus driving, and would have the
jury speculate as to whether there might possibly be jobs
out there that he cannot perform. One would expect that,
at minimum, if an individual is "substantially limited" in a
"major life activity," he or she would be conscious of that
limitation. Thus, Tice has not created a genuine issue of
fact as to whether he suffers from a"disability" within the
meaning of the ADA.5

2. Record of Disability

In the alternative, Tice submits that he has a "record of
disability" based on his back injuries. This contention fails
for the same reason that we hold Tice is not currently
disabled. A plaintiff attempting to pr ove the existence of a
"record" of disability still must demonstrate that the
recorded impairment is a "disability" within the meaning of
the ADA. Tice has only presented evidence that his
impairment limited his ability to drive a bus-- once again,
because an impairment that limits only bus driving is not
a "disability," Tice has not demonstrated the existence of a
record of disability.
_________________________________________________________________

5. Tice also comes close to contending that his diagnosis alone --
"lumbar spondylolysis with degenerate disc disease" -- is sufficient to
establish disability within the meaning of the Act. However, it is well-
established that a particular diagnosis, no matter how severe (or severe-
sounding to the layperson), standing alone, is not sufficient to establish
"disability." Rather, the inquiry as to disability is to be made on a
case-
by-case basis. See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 566
(1999) (holding that although some impairments might invariably be
severe enough to substantially limit major life activities, the
determination as to the existence of a disability is to be made via
assessment of the impact on the particular individual); Olson v. General
Elec. Astrospace, 101 F.3d 947, 953 (3d Cir. 1996) (holding that a
plaintiff with an undisputed history of serious mental illness was not
"substantially limited" in a major life activity). This scheme stands in
contrast to the current system of awarding Social Security Disability
Insurance benefits, which are granted, in part, upon the demonstration
of the existence of one of the specific impair ments listed in the
regulations. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804
(1999) (comparing the two systems).

                               10
3. "Regarded as" Disabled Due to Required Medical
Examination

Tice further contends that, whether or not he is actually
disabled, CATA regarded him as disabled, and thus he can
seek the ADA's protection through the"regarded as"
definition of "disability." As proof of such regard, Tice
points only to the fact that he was requir ed to take an IME
when no other employee was forced to do so, even though
CATA had the opportunity to consult dir ectly with his
doctor. We will address the question whether CATA's IME
comported with ADA requirements in Part III.B, infra; in
this section, we deal with the distinct (though r elated) issue
of whether the request for an IME demonstrates that CATA
"regarded" Tice as disabled.

For an individual to be "disabled" under the"regarded as"
portion of the ADA's definition of disability, the individual
must demonstrate either that: (1) despite having no
impairment at all, the employer erroneously believes that
the plaintiff has an impairment that substantially limits
major life activities; or (2) the plaintiff has a nonlimiting
impairment that the employer mistakenly believes limits
major life activities. See Sutton v. United Air Lines, Inc., 527
U.S. 471, 489 (1999). In either case, the definition of
"substantially limits" remains the same as it does in other
parts of the statute -- i.e., if the individual is attempting to
establish that the employer believed the individual to be
limited in the life activity of "working," then "working" must
encompass a broad class of jobs. See id. at 489-93; see also
Wright v. Illinois Dep't of Corrections, 204 F.3d 727, 731-33
(7th Cir. 2000); Colwell v. Suffolk County Police Dep't, 158
F.3d 635, 647 (2d Cir. 1998).6

The ADA also has specific provisions, which we have
rescribed in the margin, regar ding the propriety of
employer-mandated medical examinations.7 These
_________________________________________________________________

6. The EEOC regulations also allow for an individual to establish that he
or she is "regarded as" disabled if he or she "[h]as a physical or mental
impairment that substantially limits major life activities only as a
result
of the attitudes of others toward such impair ment." 29 C.F.R.
S 1630.2(l)(2). Tice does not claim to be disabled under this definition.
7. The relevant portions of the statute pr ovide:

       (d) Medical examinations and inquiries

                               11
provisions, which are not a model of legislative clarity, see
Yin v. California, 95 F.3d 864, 868 (9th Cir. 1996), may
leave an odd "gap" in setting out the scope of permissible
examinations and inquiries. The Act expressly allows
examinations or inquiries as to whether an employee has a
disability or as to the severity of a disability, if such
examinations/inquiries are job-related and consistent with
business necessity. See 42 U.S.C. S 12112(d)(4)(A). The Act
also explicitly permits "inquiries" (but not examinations) as
to an employee's ability to "perfor m job-related functions."
42 U.S.C. S 12112(d)(4)(B). However, the Act is unclear as to
whether examinations (rather than inquiries) are
permissible if intended to evaluate the employee's ability to
perform job-related functions, even if such examinations
are not intended to discover whether an employee is
"disabled" within the meaning of the Act, as permitted in
S 12112(d)(4)(A).

The EEOC regulations clarify the statute by explaining
that "[a] covered entity may requir e a medical examination
_________________________________________________________________

       (1) In general

       The prohibition against discrimination as r eferred to in
subsection
       (a) of this section shall include medical examinations and
inquiries.

       . . .

       (4) Examination and inquiry

       (A) Prohibited examinations and inquiries

       A covered entity shall not require a medical examination and shall
       not make inquiries of an employee as to whether such employee
       is an individual with a disability or as to the nature or severity
of
       the disability, unless such examination or inquiry is shown to be
       job-related and consistent with business necessity.

       (B) Acceptable examinations and inquiries

       A covered entity may conduct voluntary medical examinations,
       including voluntary medical histories, which ar e part of an
       employee health program available to employees at that work site.
       A covered entity may make inquiries into the ability of an
       employee to perform job-related functions.

42 U.S.C. S 12112(d).
12
(and/or inquiry) of an employee that is job-r elated and
consistent with business necessity." 29 C.F .R. S 1630.14(c).8
Under these standards, a request for an IME that complies
with the statutory restrictions will never , in the absence of
other evidence, be sufficient to demonstrate that an
employer "regarded" the employee as substantially limited
in a major life activity, simply because an examination that
is "job-related" and "consistent with business necessity"
must, at minimum, be limited to an evaluation of the
employee's condition only to the extent necessary under the
circumstances to establish the employee's fitness for the
work at issue. Cf. Sullivan v. River Valley Sch. Dist., 197
F.3d 804, 811-12 (6th Cir. 1999). A r equest for such an
appropriately-tailored examination only establishes that the
employer harbors doubts (not certainties) with respect to an
employee's ability to perform a particular job. Doubts alone
do not demonstrate that the employee was held in any
particular regard, see Colwell, 158 F.3d at 647, and, as we
have explained, inability to perform a particular job is not
a disability within the meaning of the Act, see Sullivan, 197
F.3d at 811. Accord Wright , 204 F.3d at 732-33 (request for
an examination does not establish that an employer
_________________________________________________________________

8. Although in Sutton, the Supreme Court reserved the question whether
the EEOC had been granted congressional authority to issue
implementing regulations under 42 U.S.C. SS 12111-12117, and thus
whether the regulations are owed defer ence under Chevron, U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984), we
ourselves have held that EEOC implementing r egulations are owed
"substantial deference" under Chevron. Deane v. Pocono Med. Ctr., 142
F.3d 138, 143 n.4 (3d Cir. 1998) (en banc). As we explained in note 4,
supra, the Supreme Court expressly held in Sutton that the EEOC had
not been given authority to issue implementing r egulations for Chevron
purposes with regard to SS 12101-12102 of the ADA, while
simultaneously allowing for the possibility that the EEOC was given
such authority with regard to SS12111-12117. See Sutton, 527 U.S. at
478-79. Therefore, although we do not decide whether our holding in
Pocono with respect to deference owed to regulations issued under
SS12101-12102 survives Sutton, we do believe that our holding with
respect to deference for regulations implementing S 12112(d) remains
intact. Thus, we defer to the EEOC's interpr etation of S 12112(d) to
permit examinations and inquiries that, although perhaps not intended
to discover whether an employee is "disabled" within the meaning of the
ADA, are job-related and consistent with business necessity.

                               13
regarded an employee as disabled wher e all the evidence
suggested that the employer merely had doubts about the
employee's abilities solely with respect to the physical
demands of a single job); Cody v. Cigna Healthcare of St.
Louis, Inc., 139 F.3d 595, 599 (8th Cir . 1998) (request for a
mental examination of an employee who had exhibited
strange behaviors does not establish that the employer
"regarded" the employee as disabled because "[e]mployers
need to be able to use reasonable means to ascertain the
cause of troubling behavior without exposing themselves to
ADA claims").

Indeed, even an improper IME r equest, without more,
might not be sufficient to demonstrate that an employee
was "regarded as" disabled. This is because an inquiry into
how an employee was "regarded" is necessarily quite fact-
specific, and all of the surrounding cir cumstances may be
relevant in reaching a conclusion. So, for instance, if the
IME is improper only for the reasons T ice has alleged --
i.e., because the employer already had sufficient
information from other sources to gauge the employee's
fitness for work -- such facts, standing alone, would not
necessarily be determinative of how the employee was
"regarded."

At all events, this is not to say that a request for an IME,
proper or improper, may not, taken in conjunction with
other evidence or circumstances surrounding the request,
establish that the employer regarded the employee as
disabled. The important point is that the request and
surrounding circumstances must establish that the
employee was "regarded as" disabled within the meaning of
the ADA. See Sutton, 527 U.S. at 490-93. So, for example,
if it turned out that the employer's examination was not
limited to an assessment of those potential impair ments
that had occasioned the examination in the first place, but
instead became a "wide-ranging assessment of mental or
physical debilitation," Sullivan, 197 F .3d at 812, such
evidence might be highly probative as to the nature of the
employer's perception. Further, a r equest for an
examination, taken in conjunction with evidence suggesting
that the employer had no reasonable basis for harboring
doubts about the employee's ability to do his or her job in

                               14
the first place, might also be probative as to the nature of
the employer's regard. Thus, for T ice to use CATA's request
for an IME to establish that CATA "r egarded" him as
substantially limited in the major life activity of working, he
must raise a genuine issue of fact as to whether CA TA's
request evinced a belief that Tice was unable to work in a
"broad class of jobs."

Tice has not even attempted to make such a showing. On
the contrary, he has explicitly argued in his briefing only
that "CATA believed Tice's impair ment precluded him from
working as a bus driver." Further, it is undisputed that
CATA's inquiries of Tice's doctor , and the IME itself, all
focused solely on the physical requirements of bus driving.9

Therefore, even if CATA believed Tice to be unable to
drive a bus, such a regard would still not establish that
CATA regarded him as disabled. Because there has been no
other evidence besides the request for an IME submitted to
establish the nature of CATA's "r egard" for Tice, we hold
that Tice has not put forth sufficient evidence to create an
issue of fact as to his entitlement to ADA pr otection. Thus,
Tice has failed to make out the first element of a prima
facie case of ADA discrimination, i.e., that of"disability,"
and his claim that CATA deliberately misclassified his
injuries in order to effect a discriminatory discharge fails.

B. The Propriety of the Independent Medical
Examination

Tice's next ADA claim is that CAT A violated the
provisions of 42 U.S.C. S 12112(d)(4) by requesting a
medical examination that was not consistent with business
necessity. Tice alleges that this impr oper examination
resulted in an injury to him, because the delay occasioned
by the requirement prevented him fr om working for the
_________________________________________________________________

9. For instance, on July 10, 1996, CAT A wrote to Dr. Kuhlengel with a
list of tasks that a bus driver must be able to per form (such as
assisting
wheelchair users, climbing in and out of the bus, and operating all hand
and foot controls), and asked for Dr. Kuhlengel's opinion as to Tice's
ability to perform these tasks. T ice does not argue, and there is no
evidence to suggest, that CATA inquir ed about any physical limitations
beyond those demonstrably relevant to his job.

                               15
minimum six weeks necessary to interrupt the expiration of
his two years of medical leave, eventually r esulting in his
discharge. Therefore, Tice r equests monetary damages to
remedy the alleged violation.

We have held that Tice is not "disabled" within the
meaning of the ADA, and it is not clear from the text of the
ADA itself whether nondisabled individuals ar e permitted to
sue for violations of S 12112(d). See, e.g., Watson v. City of
Miami Beach, 177 F.3d 932, 935 (11th Cir . 1999) (declining
to reach the question whether nondisabled individuals have
a cause of action for violations of S 12112(d)); Armstrong v.
Turner Indus., 141 F.3d 554, 559 (5th Cir. 1998) (same). As
have many of our sister circuits, we leave for another day
the question whether the ADA permits nondisabled
individuals to sue, because it is clear that in this case,
CATA's requirement of an IME was permissible under the
statute. The evidence surrounding CAT A's request amply
demonstrates that the examination was consistent with
business necessity, and Tice has submitted virtually no
evidence of his own in rebuttal.

Throughout the course of his dealings with CA TA, Tice
complained of severe pain and difficulty walking to the
point of requiring "narcotic" medication. Moreover, he had
apparently experienced "spasms" that interfered with his
use of his legs such that CATA had r eceived complaints
about reckless driving. There is no question that such a
history raised legitimate safety concerns about Tice's ability
to drive a bus. Tice does not even appear to dispute that
CATA had cause to inquire about his medical condition.
Rather, Tice submits that CAT A should have been content
with being permitted to question Dr. Kuhlengel instead of
forcing Tice to undergo a new medical examination.
Therefore, we will review the infor mation CATA had at the
time of its request for an IME.

In July 1995, during Tice's medical leave, Dr . Kuhlengel
wrote to CATA explaining that if T ice were to receive
surgery, his chances of being able to r eturn to his job were
"good to excellent," but that if he did not r eceive surgery,
"his prognosis for return to full duties is limited." In April
1996, Tice informed CATA that he would be undergoing
surgery in July of that year, but in June he submitted the

                               16
note from Dr. Kuhlengel stating that he could perform his
duties with special seating. Around this time, he also
informed CATA that he had canceled the planned surgery.
While Tice was on leave, CATA infor med him that to return,
he would be required to submit doctor's certification that
he could drive without risk. The certificate actually
submitted did not mention risk or the safety of T ice or of
his passengers, and, in fact, a supplement to the certificate
was sent a few days later stating that Tice would be able to
"man new lift equipped buses with associated duties as
tolerated" (emphasis added). When CAT A requested that Dr.
Kuhlengel provide more information about Tice's condition,
Dr. Kuhlengel explained by letter that "I, as you are, am
very concerned about passenger safety, and I'm relying on
Mr. Tice's assessment of his capabilities, in that he feels he
can perform the duties under safe conditions."

Such evidence allows no serious dispute that CA TA was
fully justified in its decision not to rely exclusively on Dr.
Kuhlengel for an assessment of Tice's ability to perform his
job. Dr. Kuhlengel had first recommended surgery, and
provided no explanation as to his change of opinion. His
diagnosis rested largely on Tice's own evaluation of his
abilities, and his Return to Work Certificate essentially (and
tautologically) stated no more than that T ice would be able
to perform his duties as much as T ice could perform them.
We believe that, under these facts, CA TA's unwillingness to
rely on Dr. Kuhlengel's opinion was r easonable, and that its
request for an IME was consistent with business necessity
in order to ensure the safety of its passengers. See, e.g.,
Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 809 n.2
(6th Cir. 1999) (once an employee's ability to perform his
job has been placed in doubt, an employer may r equire a
medical examination with a doctor of its choosing); Yin v.
California, 95 F.3d 864, 868 (9th Cir. 1996) ("[W]hen health
problems have had a substantial and injurious impact on
an employee's job performance, the employer can require
the employee to undergo a physical examination designed
to determine his or her ability to work. . . .").

Tice contends that CATA's request for an IME was not
consistent with business necessity because CA TA had never
before or since requested an IME. T ice particularly

                                17
emphasizes that on one occasion, an employee diagnosed
with sleep apnea was permitted to retur n to work after four
months' absence with only a doctor's certification as to his
abilities. We find this evidence insufficient to create a
genuine issue of fact as to the business necessity of CATA's
request for an IME from Tice.

The ADA's requirement that an IME be consistent with
business necessity is an objective one. Cf. Fitzpatrick v. City
of Atlanta, 2 F.3d 1112, 1119 n.6 (11th Cir. 1993)
(explaining that an employer's subjective belief in the
"necessity" of a practice with discriminatory impact is not
sufficient to escape Title VII liability). That is, even a "good
faith" mandatory medical examination by an employer may
nevertheless give rise to liability if the court determines
that the examination was unwarranted. Cf. T aylor v.
Pathmark Stores, Inc., 177 F.3d 180, 193 (3d Cir. 1999)
(explaining that there is no "reasonable mistake" defense to
a claim of discrimination on the basis of disability where
the "mistake" is premised on a generalized
misunderstanding of the effects of the plaintiff 's disability).
However, an employer's standard practice with regard to
medical examinations is certainly relevant evidence of what
is "necessary" (as suggested above, CA TA did not usually
require them), and, just as we routinely hold that evidence
of differential treatment among similarly situated employees
is probative on the issue of discrimination in Title VII suits,
see, e.g., Pivirotto v. Innovative Sys., Inc., 191 F.3d 344,
353-54 (3d Cir. 1999), an employer's dif ferential application
of a medical examination requirement is r elevant evidence
of what is "necessary" to the employer's business.

Nonetheless, we do not believe that Tice has produced
evidence sufficient to create a genuine issue of fact as to
the necessity of the IME to which he was subject. If we are
to compare the application of an IME requirement across
employees, we must first establish that the employees are,
in fact, similarly situated.10 But Tice has submitted no
_________________________________________________________________

10. This is particularly important for ADA claims, because impairments
may vary widely across employees, and an employer's animus toward,
say, people with mental disabilities may not extend to people who use
canes. Likewise, an employment practice that is per fectly permissible

                               18
details regarding this other (sleepy) employee; we do not
know, for instance, the exact nature of that employee's
illness, or whether the doctor who signed his Retur n to
Work Certificate provided more details about the employee's
condition than did Dr. Kuhlengel about T ice's impairment.
Tice cannot survive summary judgment on such a minimal
record.

Moreover, any comparison between employees must be
made with an eye to the ultimate inquiry, i.e., the necessity
of the examination of the plaintiff. Although disparate
treatment across employees may assist the factfinder in an
otherwise uncertain case as to what the job "r eally"
requires, it cannot suffice to cr eate an issue of fact as to
"necessity" in a case such as this one, wher e the evidence
is overwhelming that CATA had good r eason to be doubtful
of Tice's abilities and to distrust the opinions of Dr.
Kuhlengel.

For these reasons, we conclude that the IME was job-
related and fully consistent with business necessity, and
will affirm the District Court's grant of summary judgment
to CATA on the issue of CATA's compliance with the
medical examination provisions of 42 U.S.C.S 12112(d).

C. Confidentiality of Medical Records

Tice's final contention is that the District Court erred in
granting summary judgment to CATA r egarding his claim
for damages in light of CATA's admitted violation of those
ADA provisions governing the confidentiality of medical
records. See 42 U.S.C. S 12112(d)(3)(B) & (d)(4)(C) (requiring
that medical records be kept separately fr om
nonconfidential information, and that access to confidential
_________________________________________________________________

with respect to employees with one type of impairment may be
impermissible with respect to another impairment. Cf. Albertson's, Inc. v.
Kirkingburg, 527 U.S. 555, 566 (1999) (determination as to the existence
of a disability is not to be made by blanket r eference to categories of
impairments, but instead by case-by-case examination of the impact of
the impairment on the individual claimant). Thus, the process of
determining which employees are "similarly situated" to a plaintiff so as
to allow for a meaningful comparison can be a complicated one.

                                19
files be limited). CATA has conceded that it violated the
ADA by improperly commingling the medical r ecords of
employees with nonconfidential files. After the Union filed a
grievance regarding these practices, CA TA brought itself
into compliance with the Act, and the Union withdr ew the
grievance. Based upon this history, the District Court
concluded that Tice had not been "pr ejudiced" and thus
could not pursue his claim. We agree, and thus, once
again, need not decide in the first instance whether
nondisabled individuals are permitted to bring suit for
violations of S 12112(d).11

Other courts of appeals have addressed the question
whether a plaintiff has a cause of action for a violation of
S 12112(d) without demonstrating the existence of an
injury-in-fact, either through actual damage (emotional,
pecuniary, or otherwise), or through the pr esence of a
continuing illegal practice to which plaintif f is likely to be
subject absent court intervention. All have concluded that
a violation of S 12112(d), without such a showing, presents
no "injury" capable of remedy, and thus affords no basis for
suit. See Cossette v. Minnesota Power & Light , 188 F.3d
964, 971 (8th Cir. 1999) (remanding for a determination as
to whether the improper medical inquiry caused a "tangible
injury" capable of supporting the suit); Ar mstrong v. Turner
Indus., Inc., 141 F.3d 554, 562-63 (5th Cir. 1998)
(dismissing a claim for damages from an allegedly improper
_________________________________________________________________

11. Tice interpreted the District Court to have concluded that he was
legally "barred" from asserting his claim by first electing to pursue a
union remedy. We do not share his understanding of the court's holding.
In Alexander v. Gardner-Denver Co. , 415 U.S. 36 (1974), the Supreme
Court explained that employees could pursue discrimination claims
against their employers both through union grievance procedures and in
federal court. In so holding, the Court observed that such a system
would not grant "windfall" double-recoveries to plaintiffs, in part
because
if the union procedures fully remedy the violation, there will be "no
further relief for the court to grant." Id. at n.14. Regardless of whether
Alexander's holding with respect to the availability of "dual" fora
applies
to ADA claims, cf. Wright v. Universal Mar. Serv. Corp., 525 U.S. 70
(1998) (refusing to decide Alexander's applicability to ADA claims),
certainly Alexander establishes that the disposition of a union grievance
is relevant to the inquiry as to whether an employee has suffered any
remediable injury as a result of the alleged civil rights violations.

                               20
medical examination for lack of cognizable injury; no
standing for injunctive relief because, despite the presence
of continuing employer violations, there was no allegation
that this particular plaintiff would again be subject to
examination); cf. Griffin v. SteelTek, Inc., 160 F.3d 591, 595
(10th Cir. 1998) (permitting a nondisabled plaintiff to sue
for improper medical inquiry because the plaintiff alleged
that revelations elicited via the inquiries had caused
employer to refuse to hire him, thus r esulting in an injury-
in-fact). We ally ourselves with these holdings.12

Beyond the bare allegations of "mental/emotional
distress, mental anguish, stress and inconvenience" set
forth in his initial complaint, Tice has submitted no
evidence as to the actual existence of such har ms as a
result of CATA's ADA violations. Indeed, he has not even
identified a single person who improperly viewed his
medical files. As the Fifth Circuit has stated in the context
of preemployment examinations and inquiries, there is no
indication in either the text of the ADA or in its history that
a technical violation of S 12112(d) was intended to give rise
to damages liability. See Armstrong , 141 F.3d at 561.
Therefore, we hold that Tice may not maintain his suit
against his employer on the ground of impr oper
recordkeeping.

For the foregoing reasons, the District Court's grant of
summary judgment to CATA will be affir med.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________
12. We do not reach any conclusion with respect to the correctness of
these courts' determinations as to whether the plaintiffs in those cases
alleged the existence of a redressable "injury" within the meaning of the
ADA; we merely agree that in the absence of injury -- however defined
-- no claim can lie for a violation of S 12112(d).

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