                Case: 13-10305       Date Filed: 06/11/2014       Page: 1 of 7


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-10305
                               ________________________

                           D.C. Docket No. 1:08-cv-02138-JOF

JOHN WETHERBEE,

                                                                          Plaintiff-Appellant,

                                             versus

THE SOUTHERN COMPANY,

                                                                                    Defendant,

SOUTHERN NUCLEAR OPERATING COMPANY, INC.,

                                                                         Defendant-Appellee.
                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                       (June 11, 2014)

Before WILSON, Circuit Judge, and BUCKLEW∗ and LAZZARA, ∗∗ District
Judges.

       ∗
          Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
       ∗∗
          Honorable Richard A. Lazzara, United States District Judge for the Middle District of
Florida, sitting by designation.
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WILSON, Circuit Judge:

      John Wetherbee appeals the district court’s grant of Southern Nuclear

Operating Company’s (Southern Nuclear) motion for summary judgment as to his

claim of discrimination based on the misuse of information obtained during a

required medical evaluation, in violation of the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12112(d)(3)(C). We previously affirmed in part the district

court’s grant of summary judgment to Southern Nuclear as to Wetherbee’s

disability discrimination claim under § 12112(a) of the ADA, but remanded the

case in part to allow the district court to enter an order addressing Wetherbee’s

claim under § 12112(d)(3)(C). Wetherbee v. Southern Co., 423 F. App’x 933, 934

(11th Cir. 2011) (per curiam). After review of the parties’ briefs, the record on

appeal, and with the benefit of oral argument, we affirm.

      Wetherbee applied for a systems engineer position with Southern Nuclear at

one of its nuclear power plants. Southern Nuclear extended Wetherbee a job offer

contingent on satisfactory completion of a medical evaluation. During

Wetherbee’s evaluation, he informed Southern Nuclear that he suffered from

bipolar disorder. His medical records indicated that he took medication to manage

the disorder, had not experienced any bipolar episodes in six or seven years, and

his previous bipolar episodes had only occurred when doctors attempted to take

him off of his medication. However, Wetherbee had recently attempted to alter his


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medication regimen and, in spite of his healthcare provider’s recommendation, was

not being treated by a psychiatrist. Southern Nuclear’s medical team determined

that Wetherbee could only be hired if several conditions were met, including

compliance with his medication regimen and a restriction from working on “safety-

sensitive systems and equipment” for one year while Southern Nuclear verified his

compliance with his medication regimen. Because the systems engineer position

required that Wetherbee work on safety-sensitive systems and equipment, Southern

Nuclear determined that it could not hire Wetherbee and rescinded his conditional

job offer.

      On remand, the district court found that the restriction which led Southern

Nuclear to rescind Wetherbee’s job offer was job-related and consistent with

business necessity and that, based on this restriction, Wetherbee could not perform

the job with reasonable accommodations. Accordingly, the district court held that

Southern Nuclear was entitled to the ADA’s business necessity affirmative

defense, see Allmond v. Akal Sec. Inc., 558 F.3d 1312, 1316–17 (11th Cir. 2009)

(per curiam), and granted summary judgment in its favor. On appeal, Wetherbee

argues, among other things, that the district court erred in finding that the business

necessity affirmative defense applied because the relevant restriction was not

consistent with business necessity and there were other reasonable

accommodations that could have allowed Wetherbee to perform the job of a


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systems engineer. The only issue we need to address in this appeal, however, is

whether a claim brought under 42 U.S.C. § 12112(d)(3)(C) requires a plaintiff to

prove he is disabled. This court has not addressed whether § 12112(d)(3)(C)

requires such a showing.

      Southern Nuclear asks us to follow the Seventh and Tenth Circuits and hold

that under § 12112(d)(3)(C), Wetherbee must prove that he is disabled in order to

show that the restrictions imposed upon him violated the ADA. See O’Neal v. City

of New Albany, 293 F.3d 998, 1010 n.2 (7th Cir. 2002) (“If the applicant is not

disabled, . . . then the applicant cannot recover under § 12112(d)(3)(C).”);

Garrison v. Baker Hughes Oil Field Operations, Inc., 287 F.3d 955, 960 n.4 (10th

Cir. 2002) (“[T]o recover under subsection 12112(d)(3)(C) a plaintiff must show

the employer used collected medical information to discriminate on the basis of a

disability.”). Southern Nuclear also points us to 29 C.F.R. § 1630.14, which

applies directly to § 12112(d)(3)(C) and states, “if certain criteria are used to

screen out an employee or employees with disabilities . . . the exclusionary criteria

must be job-related and consistent with business necessity.” (Emphasis added.)

Accordingly, Southern Nuclear argues that in the absence of a disability, there is

no discrimination, and Wetherbee’s § 12112(d)(3)(C) claim fails.

      Wetherbee asks us to hold the exact opposite. Wetherbee says we should

hold that § 12112(d)(3)(C) does not require him to prove that he was disabled in


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order to show that Southern Nuclear violated the ADA. He notes that we have

already held that disability status is not an element of §§ 12112(d)(2) and (d)(4)(A)

claims. See Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1213

(11th Cir. 2010); Owusu-Ansah v. Coco-Cola Co., 715 F.3d 1306, 1310 (11th Cir.),

cert. denied, 134 S. Ct. 655 (2013). Accordingly, Wetherbee argues that we

should extend the holdings of those cases and hold that disability status is not an

element of § 12112(d)(3)(C).

       We disagree and instead join the Seventh and Tenth Circuits in holding that

an individual seeking relief under § 12112(d)(3)(C) must demonstrate that he is a

qualified individual with a disability. Contrary to Wetherbee’s argument, our

holdings in Harrison and Owusu-Ansah—that disability status is not an element of

§§ 12112(d)(2) and (d)(4)(A) claims—should not be extended to § 12112(d)(3)(C)

claims. Section 12112(d)(2) prohibits employers from conducting “a medical

examination or mak[ing] inquiries of a job applicant as to whether such applicant is

an individual with a disability.” (Emphasis added). Section 12112(d)(4) offers

current employees the same protection. By the plain language of these provisions,

a violation occurs when any applicant or employee is subject to an exam. 1

Accordingly, it simply would not make sense to require, as an element of those

claims, a showing that an individual is disabled, because these subsections protect

       1
         Likewise, under § 12112(d)(3)(B), an offeree may have a claim if his information is not
kept confidential. 42 U.S.C. § 12112(d)(3)(B).
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all applicants and all employees at certain stages from being subject to a test to

determine whether or not they are disabled in the first place. See §§ 12112(d)(2)

and (d)(4)(A).

      A violation under § 12112(d)(3)(C), on the other hand, occurs when

information is used in violation of some other provision of the ADA. Specifically,

§ 12112(d)(3)(C) permits medical exams as a condition of employment, so long as

“the results of such examination[s] are used in accordance with this subchapter.”

42 U.S.C. § 12112 (d)(3)(C) (emphasis added). It differs from the sections

discussed above because there, the violations are completed when a test is simply

administered or confidentiality is violated.

      To be successful under § 12112(d)(3)(C), however, Wetherbee needs to

show not just that the information was gathered but that the information was not

“used in accordance with this subchapter.” Id. Wetherbee never suggests which

provision of the ADA was violated by Southern Nuclear’s use of the results of his

exam, other than § 12112(a), which prohibits discrimination “on the basis of

disability.” Thus, whether or not the results of an exam under (d)(3)(C) were used

in accordance with the applicable subchapter turns on whether there was

discrimination on the basis of disability, and discrimination on the basis of

disability cannot occur unless the claimant is disabled. Therefore, Wetherbee

could not prevail under § 12112(d)(3)(C) without showing that he is a disabled


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individual.

      Wetherbee, however, admitted at oral argument that he cannot demonstrate

that he is an individual with a disability. While the district court did not

specifically address this statutory interpretation issue, “we may affirm its judgment

on any ground that finds support in the record.” Lucas v. W.W. Grainger, Inc., 257

F.3d 1249, 1256 (11th Cir. 2001) (internal quotation marks omitted). Accordingly,

the district court is affirmed.

      AFFIRMED.




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