Cancer Survivor Not Qualified for Job Lacks ADA Claim

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By Kevin McGowan

July 12 — A transportation company didn't violate the Americans with Disabilities Act by not hiring a truck driver applicant who is a cancer survivor because he wasn't qualified for the job, the U.S. Court of Appeals for the Tenth Circuit ruled ( Kilcrease v. Domenico Transp. Co., 2016 BL 222689, 10th Cir., No. 15-1320, 7/12/16 ).

The ADA doesn't “turn on” until an individual with a disability can show he is “otherwise qualified” for the job, said Paul Godec, a Denver lawyer who represented Domenico Transportation Co.

The court's decision provides helpful clarification on what standards apply in an ADA failure to hire case, Godec told Bloomberg BNA July 12.

The appeals court affirmed summary judgment for Domenico on Mark Kilcrease's ADA discrimination and retaliation claims.

Kilcrease, a survivor of acute myeloid leukemia, contended Domenico violated the ADA by rejecting his 2009 application for a truck driver job in Colorado. The company said it denied Kilcrease employment because he couldn't meet a requirement of three years of mountain-driving experience.

An ADA plaintiff must produce “credible evidence” he possesses the objective qualifications for the job, the Tenth Circuit said.

Since Kilcrease couldn't show he had the requisite mountain-driving experience or that it wasn't an essential job function, the district court properly dismissed his ADA claim, Judge Carolyn B. McHugh wrote.

Judges Paul J. Kelly and Scott M. Matheson joined in the decision.

An attorney representing Kilcrease didn't respond to Bloomberg BNA's request for comment July 12.

Qualifications Part of Plaintiff's Case

Kilcrease argued Tenth Circuit precedent precludes consideration of a prospective employee's qualifications at the preliminary prima facie case stage of an ADA case.

But nothing in Kenworthy v. Conoco Inc., 979 F.2d 1462,61 FEP Cases 375 (10th Cir. 1992), or its progeny relieves “a plaintiff of the obligation to present ‘credible evidence that [he] possesses the objective qualifications' ” for the job, the court said.

“[C]onsideration of a plaintiff's qualifications at the prima facie stage is not only proper, but necessary,” the court said.

In Kenworthy, the Tenth Circuit said a district court at the prima facie stage improperly credited an employer's explanation for not promoting the employee who sued. But that doesn't foreclose all consideration of a plaintiff's qualifications as part of his prima facie case, the court said.

The “relevant inquiry” at that stage is not whether an employee or applicant is able to meet all the employer's objective criteria for the job, the court said. Rather, “the employee need only put forward credible evidence that he meets the employer's objective requirements necessary to perform the job,” it said.

Kilcrease failed to do so, the court said. He lacked the requisite three years' mountain-driving experience and didn't show Domenico “actually hired any driver” who didn't have that qualification, it said.

Defer to Employer's Judgment

Kilcrease argued Domenico can't show its mountain-driving experience requirement was an essential job function.

Citing circuit precedent, the court said it gives “considerable weight” to an employer's judgment regarding “essential” functions. It won't “second guess” an employer when “its description is job-related, uniformly enforced, and consistent with business necessity,” the court said.

Kilcrease had the burden of raising a factual dispute over whether the mountain-driving experience requirement was essential, the court said.

But his arguments that Domenico's requirement was nonessential because it was unwritten or because it was applied inconsistently fall short, the court said.

Instead, he lacked evidence showing Domenico failed to uniformly apply the requirement or that it's otherwise unnecessary for the Colorado driving job, the court said.

Killmer Lane & Newman LLP represented Kilcrease. Kissinger & Fellman PC represented Domenico.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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