*

The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0339p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

VELMA SUE BATES; CLAUDIA BIRDYSHAW;

WILLARENE FISHER; MARK LONG; JON

TOUNGETT; CAROLYN WADE; RICHARD

WHITE,

 Plaintiffs-Appellees,

v.

DURA AUTOMOTIVE SYSTEMS, INC.,

 Defendant-Appellant.

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No. 09-6351

Appeal from the United States District Court

for the Middle District of Tennessee at Columbia.

No. 08-00029—Aleta Arthur Trauger, District Judge.

Argued: October 19, 2010

Decided and Filed: November 3, 2010 

Before: MARTIN and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.*

_________________

COUNSEL

ARGUED: Robert E. Boston, WALLER LANSDEN DORTCH & DAVIS, LLP,

Nashville, Tennessee, for Appellant. John A. Beam, III, EQUITUS LAW ALLIANCE,

PLLC, Nashville, Tennessee, for Appellees. ON BRIEF: Robert E. Boston, Andrew

S. Naylor, WALLER LANSDEN DORTCH & DAVIS, LLP, Nashville, Tennessee, Ben

Boston, BOSTON, HOLT, SOCKWELL & DURHAM, PLLC, Lawrenceburg,

Tennessee, for Appellant. John A. Beam, III, Kristin J. Fecteau, EQUITUS LAW

ALLIANCE, PLLC, Nashville, Tennessee, for Appellees. 

1
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 2

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs-appellees are seven former

employees of Dura Automotive Systems who are challenging Dura’s drug testing policy

under the Americans with Disabilities Act. In resolving the parties’ cross motions for

summary judgment, the district court held that an individual need not be disabled to

pursue a claim under section 12112(b)(6) of the Act. The district court certified this

issue for interlocutory appeal, which a panel of this Court granted. We now REVERSE

the district court’s decision and hold that an individual must be disabled to pursue a

claim under 42 U.S.C. § 12112(b)(6).

I.

As this interlocutory appeal presents a purely legal issue, we will only briefly

summarize the relevant facts to provide context. The Employees are seven individuals

who worked at Dura’s Lawrenceburg, Tennessee manufacturing facility. Dura

manufactures glass window units for cars, trucks, and busses, and the Employees

performed a wide range of jobs at Dura including driving tow motors, assembling

windows, painting primer on frames, and trimming and water testing windows.

Dura grew concerned that the Lawrenceburg facility had a higher rate of

workplace accidents than comparable plants and suspected that this might be caused by

either legal or illegal drug use. To improve safety, Dura implemented a policy that

prohibited employees from using legal prescription drugs if such use adversely affected

safety, company property or job performance. Dura worked with an independent drug

testing company to set up a procedure to screen its employees for substances it believed

could be dangerous in the workplace. The resulting policy screened employees for

twelve substances including those commonly found in legal prescription drugs such as

Xanax, Lortab, and Oxycodone.
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 3

1

The district court held that there is a question of fact as to whether one of the Employees,

Willarene Fisher, qualifies as disabled because of a “record of disability.” However, because this appeal

only involves issues relating to a non-disabled individual’s ability to challenge Dura’s policy, this opinion

assumes that none of the Employees are disabled, and does not separately analyze Fisher’s claims.

Each of the Employees tested positive for one of the twelve prohibited

substances. In each case, the individual had a legal prescription for a drug containing

that substance. Dura gave each of the Employees an opportunity to transition to drugs

without the prohibited substances, but refused to consider letters from doctors stating

that the Employees’ work performance would not be affected by the drugs. Eventually,

Dura terminated the Employees when they continued taking medication with the

prohibited substances.

The Employees sued, claiming that Dura’s drug testing violates the Americans

with Disabilities Act. In resolving the parties’ cross motions for summary judgment, the

district court concluded that six of the Employees are not disabled as a matter of law.1

The district court held that the Employees’ claim that Dura’s actions constituted an

impermissible medical examination is best analyzed under section 12112(b)(6). The

district court denied the Employees’ summary judgment motion, finding that there was

a disputed issue of material fact as to whether Dura’s justification for the drug testing

falls within the exception in the Act for testing that is job related and consistent with

business necessity.

Dura then moved for clarification, asking the district court to determine whether

individuals must be disabled in order to pursue claims under section 12112(b)(6). The

district court affirmed its initial decision that individuals do not need to be disabled to

assert claims under section 12112(b)(6), but, recognizing that there is a difference of

opinion on this question, certified this issue for interlocutory appeal. A panel of this

Court granted the petition for leave to appeal on the issue of whether an individual must

be disabled to pursue a claim under section 12112(b)(6) of the Act.
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 4

2

The 2008 amendments to the Act are inapplicable to this case as we have held that they do not

apply retroactively. Milholland v. Sumner Cnty. Bd. of Educ., 569 F.3d 562, 565 (6th Cir. 2009).

II.

A. Standard of Review

Because this is an interlocutory appeal, we cannot review the district court’s

findings of fact and must consider only pure questions of law. Nw. Ohio Adm’rs, Inc.

v. Walcher & Fox, Inc., 270 F.3d 1018, 1023 (6th Cir. 2001). We review the district

court’s conclusions of law de novo. Id.

B. The Text of Section 12112

Section 12112 of the Act prohibits discrimination against a “qualified individual

with a disability because of the disability.” 42 U.S.C. § 12112(a) (2006).2 In pertinent

part, this section provides:

(a) General Rule

No covered entity shall discriminate against a

qualified individual with a disability because of the

disability of such individual . . .

(b) Construction

As used in subsection (a) of this section, the term

“discriminate” includes . . .

. . .

(6) using qualification standards, employment tests or

other selection criteria that screen out or tend to screen

out an individual with a disability or a class of individuals

with disabilities unless the standard, test or other

selection criteria, as used by the covered entity, is shown

to be job-related for the position in question and is

consistent with business necessity . . . .

Id. § 12112.

Although non-disabled individuals may bring claims under some provisions of

the Act, the plain text of subsection (b)(6) only covers individuals with disabilities. The

text of subsection (a) and (b)(6) specifically refers to “qualified individual[s] with

disabilit[ies],” and not, as discussed below, a broader class of individuals such as
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 5

“employees.” See id. § 12112(a), (b)(6). We endeavor to “read statutes and regulations

with an eye to their straightforward and commonsense meanings.” Henry Ford Health

Sys. v. Shalala, 233 F.3d 907, 910 (6th Cir. 2000). “When we can discern an

unambiguous and plain meaning from the language of a statute, our task is at an end.”

Bartlik v. U.S. Dep’t of Labor, 62 F.3d 163, 166 (6th Cir. 1995). A straightforward

reading of this statute compels the conclusion that only a “qualified individual with a

disability” is protected from the prohibited form of discrimination described in

subsection (b)(6)—the use of qualification standards and other tests that tend to screen

out disabled individuals. This interpretation is consistent with the Fifth Circuit’s holding

that individuals who are not disabled cannot pursue claims under section 12112(b).

Fuzzy v. S&B Eng’rs & Constructors, Ltd., 332 F.3d 301, 303 (5th Cir. 2003).

Although the Employees argue that subsection (b)(6) should be read in

conjunction with subsection (d)(4), we do not believe that is necessary in light of the

clarity of subsection (b)(6). As the Supreme Court has noted, “when a statute speaks

with clarity to an issue judicial inquiry into the statute’s meaning, in all but the most

extraordinary circumstance, is finished.” Estate of Cowart v. Nicklos Drilling Co., 505

U.S. 469, 475 (1992). “The plain meaning of legislation should be conclusive, except

in rare cases in which the literal application of a statute will produce a result

demonstrably at odds with the intentions of its drafters.” United States v. Ron Pair

Enters., Inc., 489 U.S. 235, 242 (1989) (internal quotation omitted). Although other

sections of the Act apply to non-disabled individuals, the Act’s primary purpose is to

prevent discrimination against disabled individuals. Therefore, reading the plain text of

section 12112(b)(6) to only cover disabled individuals is not an absurd construction or

inconsistent with the intent of the statute.

Additionally, requiring that an individual be disabled to pursue claims under

section 12112(b)(6) gives effect to Congress’s choice of language. When Congress uses

different language in different parts of the same act, we endeavor to give effect to that

different language. See Rodriguez v. United States, 480 U.S. 522, 525 (1987). In

contrast to the language used in subsection (d)(4), subsection (b) does not use the word
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 6

3

In pertinent part, subsection (d)(4) provides:

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.

42 U.S.C. § 12112(d)(4)(A) (emphasis added). 

“employee,” but the narrower term, “qualified individual with a disability.” See

42 U.S.C. § 12112(b), (d)(4)(A).3 This suggests that Congress intended subsection

(b)(6) to be more limited than subsection (d)(4) and not broadly cover all employees,

which may include non-disabled individuals. Although we do not decide the issue at this

time because it is not part of the certified question, we note that several courts have held

that non-disabled individuals can pursue claims under section 12112(d)(4). E.g.,

Cossette v. Minn. Power & Light, 188 F.3d 964, 969-70 (8th Cir. 1999); Fredenburg v.

Contra Costa Cnty. Dep’t of Health Servs., 172 F.3d 1176, 1182 (9th Cir. 1999); Griffin

v. Steeltek, Inc., 160 F.3d 591, 594 (10th Cir. 1998); Wice v. Gen. Motors Corp., No. 07-

10662, 2008 WL 5235996, at *2 (E.D. Mich. Dec. 15, 2008); see also Boies v. Capital

Area Cmty. Servs., Inc., 188 F.3d 506, 1999 WL 618085, at *5 (6th Cir. 1999)

(unpublished table decision) (declining to determine whether an individual must have

a disability to pursue a claim under section 12112(d)). Interpreting subsection (b)(6) as

being limited to individuals with disabilities better gives effect to Congress’s decision

not to use the word “employees” in this subsection. Therefore, because the plain text of

the statute requires that an individual bringing such a claim be disabled, and this

interpretation is not “demonstrably at odds” with Congress’s intent, the plain meaning

controls.

III.

The district court also held that the Employees had not asserted claims

cognizable under section 12112(d)(4) of the Act, challenging Dura’s drug testing policy

as an improper “medical examination or inquiry.” The Employees challenge this ruling

in their appellate brief. This ruling, however, was not certified for interlocutory appeal.
No. 09-6351 Bates, et al. v. Dura Automotive Systems, Inc. Page 7

The doctrine of pendent appellate jurisdiction allows an appellate court, in its

discretion, to exercise jurisdiction over issues that are not independently appealable, but

are “inextricably intertwined” with matters over which the appellate court properly and

independently has jurisdiction. Chambers v. Ohio Dep’t of Human Servs., 145 F.3d 793,

797 (6th Cir. 1998). However, the “inextricably intertwined” requirement is not meant

to be loosely applied as a matter of discretion. Id. Rather, the “inextricably intertwined”

requirement is satisfied only if the resolution of the properly appealable issue

“necessarily and unavoidably” decides the non-appealable issue. Wedgewood Ltd.

P’ship I v. Twp. of Liberty, 610 F.3d 340, 348 (6th Cir. 2010). “A pendent appellate

claim can be regarded as ‘inextricably intertwined’ with a properly reviewable claim

only if the pendent claim is ‘coterminous with, or subsumed in, the claim before the

court on interlocutory appeal.’” O’Bryan v. Holy See, 556 F.3d 361, 378 n.7 (6th Cir.

2009) (quoting Chambers, 145 F.3d at 797).

As the Employees have not demonstrated that the district court’s ruling on their

putative claims under section 12112(d)(4) is inextricably intertwined with the certified

issue, we decline to exercise pendent appellate jurisdiction and express no opinion as to

that part of the district court’s decision.

IV.

For the reasons set forth above, we REVERSE the district court’s decision that

non-disabled individuals can pursue claims under section 12112(b)(6) of the Act. On

remand, the district court shall dismiss the claims of the non-disabled Plaintiffs under

section 12112(b)(6) of the Act.