CLARK, Senior Circuit Judge:
Matthew LaChance has epilepsy, and brought a claim against his former employer, Duffy's Draft House, Inc. ("Duffy's") alleging that it fired him in violation of the Americans with Disabilities Act ("ADA"). The district court found that LaChance was not a "qualified individual" within the meaning of the ADA, and granted summary judgment to the employer. LaChance filed his notice of appeal, and, subsequently, Duffy's moved for attorney's fees and costs. The district court awarded Duffy's attorney's fees and costs, but LaChance did not file a notice of appeal from the award or amend his notice of appeal. LaChance appeals the district court's grant of summary judgment and the award of attorney's fees and costs. We affirm the district court's grant of summary judgment, and hold that we have no jurisdiction over the order awarding attorney's fees and costs.
LaChance had a long history of complex partial seizures with secondary generalization, and had not been free of seizures for more than two weeks since he began having the seizures around age seven or eight. When he had a seizure, he did not lose consciousness, but would become dazed and
LaChance applied for a job as a line cook with Duffy's and began that job in March, 1993. In his deposition, LaChance's supervisor stated that on LaChance's first night of work, he had two seizures: during the first he walked into a wall, and later walked into the dining room where customers were present. The supervisor also stated that on the second night LaChance worked, he had another seizure, during which he went into the bar and sat on a stool for about ten minutes. Because LaChance's medication was being changed he was having seizures more frequently than usual, and in June, 1993, the supervisor suggested that LaChance take two weeks off of work to stabilize on his new medication. LaChance agreed, and there is some dispute about whether LaChance called back after the two weeks, but viewing the facts in his favor, when he finally did reach the supervisor, he was told that because of his epilepsy he was a "liability" to the business and was discharged. LaChance brought suit alleging that Duffy's failed to make a reasonable accommodation for him and fired him in violation of the ADA.
Duffy's filed a motion for summary judgment, alleging that LaChance failed to prove that he was a "qualified individual" because he could not perform the job safely, and attached depositions of LaChance, LaChance's supervisor from Duffy's, and LaChance's doctor. In the depositions, LaChance's supervisor stated that line cooks were required to cook on a gas flat top grill, use a fryolater filled with hot grease, and use slicing machines. LaChance's doctor stated that a person with the kind of seizures LaChance experienced should be restricted from working with flat top grills, hot ovens, fryers with boiling grease, and slicing machines. LaChance stated that he posed a risk to himself and to others while working around those appliances because of his seizures. He also stated that a reasonable accommodation would have been to keep him away from those appliances, and have him perform other duties which did not involve use of those appliances, such as prep work, but that prep work took two to three hours per shift and that line cooks at Duffy's did not do prep work.
LaChance responded to the motion for summary judgment with affidavits stating that he had worked as a cook in other restaurants without harming himself or others for some months before he was hired at Duffy's, and for 13 months after his discharge. The district court found that LaChance was not a qualified individual because he could not perform the essential functions of the job without threat of harm to himself or others. The district court held that once an employer reasonably identified an employee as posing a risk of harm, the ADA did not require the employer to accept that risk, and that it was an entirely untenable proposition that LaChance's employer or co-employees should have to bear the personal risk and legal liability that could have resulted from any accident due to the seizures. The district court found that LaChance had not requested any accommodation from Duffy's, and that Duffy's could not have accommodated LaChance in any way such that he could have still performed the essential functions of a line cook.
LaChance filed his notice of appeal from the entry of judgment in a timely fashion. Subsequently, Duffy's filed a motion for costs and attorney's fees, and, after a hearing, the district court awarded Duffy's costs and attorney's fees. LaChance did not amend his notice of appeal or file a new notice of appeal from the order awarding costs and attorney's fees.
I. Summary Judgment
We review the grant or denial of summary judgment de novo, applying the
The Americans with Disabilities Act of 1990, as amended by 42 U.S.C. § 12101 et seq., prohibits covered employers from discriminating against an employee based upon known physical or mental impairments, provided that the employee is a qualified individual with a disability.
Duffy's admits that it fired LaChance because of his epilepsy, and LaChance admits that if he had continued working at Duffy's, he would have had seizures on the job which would have posed a risk of harm to himself and others because of the appliances involved in the duties of a line cook. The issue is whether LaChance produced evidence from which a reasonable jury could conclude that he was not a direct threat.
LaChance failed to produce probative evidence that he was not a direct threat. His argument that he has performed the job safely at other places is unavailing. The evidence indicates that his employment before Duffy's consisted mainly of prep work and there is no evidence that any of those jobs involved using the kind of appliances he was required to work with at Duffy's. The affidavit from his supervisor at a job after Duffy's, indicating that he had worked around the same appliances without incident for 13 months, does not overcome his own admission and his doctor's statement that he posed a risk of harm. Such evidence does not create an issue of fact. We hold that one employer's willingness to bear the risk of harm does not constitute evidence rendering other employers liable under the ADA for their refusal to bear that same risk.
LaChance argues that Duffy's failed to make an individual assessment of his disability, and incorrectly cites to Mantolete v. Bolger
LaChance argues that his case is similar to that of Doane v. City of Omaha,
Even though there is no genuine issue of material fact as to whether LaChance was a direct threat to others, he could still have defeated Duffy's motion by producing probative evidence that reasonable accommodations were available. The employee retains at all times the burden of persuading the jury either that he was not a direct threat or that reasonable accommodations were available.
II. Costs and Attorney's Fees
The district court granted Duffy's motion for summary judgment on September 5, 1996, and LaChance filed a timely notice of appeal on October 3, 1996. Four days later, Duffy's filed a motion for attorney's fees and costs, which the district court granted on November 12, 1996. LaChance did not file a notice of appeal from that order granting the motion for attorney's fees or amend his notice of appeal, but challenges that order on appeal.
Duffy's contends that LaChance's failure to amend his notice of appeal or file a notice of appeal from the order granting the motion for attorney's fees precludes LaChance from raising this issue on appeal. LaChance argues that, under Fed. R.App. P. 4(a)(4), an amendment to a notice of appeal to include an order from a motion for attorney's fees is only necessary when the district court extended the time for appeal under Rule 54.
We are aware of case law standing for the proposition that a premature notice of appeal filed after a judgment was rendered but before the issue of attorney's fees was decided was cured by a subsequent order deciding the fee issue, but do not find those cases applicable here.
Rather, the principle of law that we find controlling in this case comes from McDougald v. Jenson.
This court found that it lacked jurisdiction over an appeal of the permanent injunction because the stipulation containing the injunction had not been entered into when the defendant filed her notice of appeal, and the notice of appeal made no reference to the permanent injunction.
The Supreme Court found that a pro se prisoner's informal brief in response to a briefing order qualified as the "functional equivalent" of the notice of appeal.
In Intel Corp. v. Terabyte Intern., Inc.,
In Pope v. MCI Telecommunications Corp.,
Like the defendant in McDougald, LaChance filed his notice of appeal before the motion for attorney's fees had been filed, and thus, his notice of appeal could not have been intended to cover the order awarding attorney's fees. LaChance filed a civil appeal statement on November 4, 1996, but that statement specifically indicated that he was appealing the district court's grant of summary judgment and did not mention the district court's order awarding attorney's fees. LaChance's argument that Rule 4 does not apply to him is irrelevant because he failed to meet the requirements of Rule 3. Because LaChance failed to amend his notice of appeal to include the order granting attorney's fees, or file anything within 30 days of the order granting attorney's fees that mentioned that order, the order awarding attorney's fees is not reviewable by this court.
III. Appellees' Motion for Attorney's Fees
Duffy's has filed a motion for attorney's fees. Rule 38 of Federal Rules of Appellate Procedure provides that "[i]f a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee."