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Chicago Regional Council of Carpenters, United Brotherhood v. Thorne Associates

September 25, 2012


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Defendant Thorne Associates, Inc. ("Thorne") refused to employ Rodolfo Rosas, Sr. ("Rosas") as a drywall carpenter after Rosas failed a "fitness for hire" ("FFH") test that required him to lift 50- and 100-pound boxes to certain heights. (Compl. [1] ¶¶ 17, 52, 55.) Rosas and his union, the Chicago Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America ("Union"), seek redress under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Rosas and the Union claim that (1) Thorne used the FFH test and a pre-employment medical examination to screen out individuals with disabilities rather than for job-related reasons; (2) the pre-employment medical examination violated the ADA; and (3) Thorne discriminated against Rosas on the basis of disability. (Compl. ¶¶ 60-62, 67-68, 72, 77; Supplement in Opp. to Def.'s Mot. to Dismiss (hereinafter "Pls.' Supp.") [27] at 4.) Thorne moverd to dismiss the case pursuant to Federal Rule of Civil Procedure Rule 12(b)(1) and 12(b)(6). (Mem. in Support of Thorne's Mot. to Dismiss (hereinafter "Def.'s Mem.") [15] at 1-2.)

This court holds that (1) Plaintiffs lack standing to challenge Thorne's medical examination; (2) the FFH test is not a medical examination as defined by the ADA; (3) Plaintiffs have adequately pleaded that the FFH test is not consistent with business necessity; and (4) Plaintiffs have pleaded that Rosas is disabled within the meaning of the ADA. Thorne's 12(b)(6) motion to dismiss is granted as to Count II, but denied as to Counts I and III.


The issue before the court is the sufficiency of Plaintiffs' complaint, but both parties have referred to information gathered in an arbitration proceeding between the Union and Thorne that took place on July 15, 2010. At the court's request, Defendant has furnished a copy of the arbitration transcript and the arbitrator's opinion. The issues before the arbitrator were (1) whether a Union grievance based on Thorne's refusal to hire Rosas was substantively arbitrable; (2) whether Thorne violated its collective bargaining agreement when it refused to hire Rosas; and (3) whether the medical examination and FFH test used by Thorne violated the ADA. (Rodolfo Rosas Grievance Opinion and Award (hereinafter "Arb. Award") at 1-2, 5, 9.) The arbitrator determined that the Union grievance was substantively arbitrable and that Thorne did not violate the collective bargaining agreement when it refused to hire Rosas. (Arb. Award at 1, 10.) He also concluded that the FFH test was within the "inherent management right" of Thorne and does not violate the law.*fn1 (Arb. Award at 9 n.11, 10.) At this stage, the court considers information in the arbitration record only to the extent that, in their complaint and memoranda, Plaintiffs rely on the evidence presented there or otherwise demonstrate that they accept that evidence as true.


Thorne is a construction company that performs interior work, including the installation of sheets of drywall that weigh more than 100 pounds. (Def.'s Mem. at 2.) Some time before July of 2009, Thorne contracted with Concentra Medical Center ("Concentra") to develop and administer a fitness-for-hire ("FFH") test, which it then required all carpenter applicants to take and pass.

(Compl. ¶¶ 17, 27, 30.) According to Defendant, the FFH test was designed to simulate work tasks required on Thorne carpentry jobs.*fn2 (Def.'s Mem. at 3.) The test was administered by a physical therapist and therapy director employed by Concerta, Steven Van Klompenburg (Compl. ¶¶ 31-32), to 83 potential employees, including Rosas, between July of 2009 and July of 2010. (Pls.' Supp. at 11.) All but two of the 83 applicants passed the FFH test and were hired by Thorne. (Id.)

In June of 2010, Rosas "had approximately 29 years of experience working as a journeyman carpenter," including work between 1995 and 2008 done "directly for Thorne . . . as a journeyman carpenter." (Compl. ¶ 48.) On June 24, 2010, Rosas applied to Thorne for a job installing drywall in the elevator shafts of Lurie Children's Hospital. (Compl. ¶ 43.) Thorne asked Rosas to take a medical examination*fn3 and FFH test administered by Concentra. (Def.'s Mem. at 3.)

Rosas passed the medical examination but failed the FFH test. (Def.'s Mem. at 3.) The FFH test required Rosas to, among other tasks, "lift and carry a 50-pound box between 16 inches and 72 inches vertically . . . [and] lift and carry a 100-pound box to a height between 6 inches and 56 inches vertically." (Compl. ¶ 17.) At the arbitration proceeding, Rosas testified that he was asked to "put the 100 pounds on top of one shelf, 6 feet." (Arb. Tr. 55:4-12.) Rosas, who is 5'3", recalled, "when I saw that, I told the guy, it's not going to happen; I am too short. . . . I lift the thing . . . and [Van Klompenburg] told me to put it down." (Arb. Tr. 55:13-15.) After that, Rosas testified, "[t]hen the guy brings the shelf all the way to 4 foot and a half. So he told me to lift it again. So I lifted 100 pounds and easy . . . [a]nd he told me, you're doing fine." (Arb. Tr. 55:15-19.) Van Klompenburg, who administered the test, determined that Rosas's "body mechanics were compromised" when lifting the 50-pound and 100-pound boxes. (Arb. Tr. 78:2-6; Compl. ¶ 51-52.) Rosas passed the other parts of the FFH test. He was able, for example, to "[c]limb a ladder twenty times in under five minutes," "[l]ift and extend at chest height a 30-pound weight twenty times in five minutes," and push a cart weighing 100 pounds 100 feet in five minutes. (Compl. ¶ 17, 53.) Because Rosas failed the FFH test, Thorne did not hire him for the Lurie Hospital job. (Compl. ¶¶ 54-55.) Plaintiffs argue that "[t]he only thing that changed" between Rosas's former satisfactory employment at Thorne and his application for the Lurie Hospital job was that Defendant "began requiring a test in which a man 5'3" tall is required to lift a 100 lb. weight over his head." (Pls.' Resp. To Def.'s Mot. to Dismiss (hereinafter "Pls.' Resp.") [18] at 10.)


Under FRCP Rule 12(b)(6), a party may seek dismissal of a complaint for "failure to state a claim upon which relief can be granted." A complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint is read "in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [the non-movant's] favor." EEOC v. United Airlines, Inc., ___ F.3d ___ , 2012 WL 3871503, *2 (7th Cir. Sept. 7, 2012) (internal quotation marks and citations omitted). The court evaluates Plaintiffs' claims under these standards, beginning with Plaintiffs' claim that Thorne administered illegal pre-employment medical examinations (Count II).

A. Legality of FFH Test and Medical Exam

The ADA affords protection against certain medical examinations and inquiries made of any job applicant, regardless of disability. The Seventh Circuit summarized the ADA's requirements as "a prohibition against using pre-employment medical tests; a prohibition against the use of medical tests that lack job-relatedness and business necessity; and a prohibition against the use of tests which screen out (or tend to ...

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