Pontinen v. United States Steel Corporation

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

RUSSELL PONTINEN, )

)

Plaintiff, )

)

v. ) Case No. 2:18-cv-232

)

UNITED STATES STEEL CORP., )

)

Defendant. )

OPINION AND ORDER

This matter is before the court on the Motion for Summary Judgment [DE 24] filed by the

defendant, United States Steel Corp., on September 30, 2020. For the following reasons, the

motion is GRANTED.

Background

The plaintiff, Russel Pontinen, initiated this matter on June 15, 2018 against the

defendant, United States Steel Corp. (USS), under the Americans with Disabilities Act of 2008

(ADA), 42 U.S.C. § 12101. He has alleged that USS discriminated against him by rescinding an

offer of employment because he “experienced a few isolated seizures in his life.”

Pontinen applied for USS’ position of “Utility Person” in May of 2017. The essential

functions of the job included the ability work a significant portion of any particular shift: a) at a

height greater than five feet; b) operating hazardous machinery; c) performing excessive ladder

and stair climbing; and d) operating mobile equipment. USS stated that a Utility Person was

typically assigned to operating a crane, which could weigh one hundred (100) tons and move

objects weighing more than fifty (50) tons.

On May 8, 2017, Pontinen received an offer for employment as Utility Person contingent

upon a “satisfactory pre-placement fitness for duty examination.” In preparation for the exam,

Pontinen filled out a health inventory form in which he indicated “yes” as to whether he has (or

had) convulsions, epilepsy, seizures, or fits. Pontinen claimed that he began experiencing

seizures when he was eight (8) years old. Between 2006 and 2014, he experienced three more

seizures. It was not until 2014 that Pontinen began receiving medical treatment. His treating

neurologist, Dr. George Abu-Aita, prescribed a trial sample of Trileptal which eventually caused

him to feel “fuzzy” and unable to concentrate. On August 26, 2014, Dr. Aita prescribed

Depakote instead of Trileptal.

On May 15, 2017, family practitioner, Jennifer Ntovas (Ntovas), performed the fitness for

duty examination of Pontinen on behalf of USS. During the exam, Pontinen disclosed that he

had been diagnosed with epilepsy in the past. Ntovas requested that he provide an updated

report and examination from Dr. Aita because he was Pontinen’s treating neurologist. The form

provided to Dr. Aita stated that its purpose was “a preemployment fitness for duty examination.”

On June 19, 2017, Dr. Aita reexamined Pontinen which included conducting an EEG test. The

EEG test results came back normal, and Dr. Aita cleared Pontinen to work with no restrictions.

On July 17, 2017, USS informed Pontinen that his offer of employment was rescinded based on

the results of the fitness for duty examination.

As stated above, Pontinen filed his complaint against USS alleging one violation of the

ADA based on his epileptic condition. USS has moved for summary judgment on the claim,

arguing that Pontinen was not a “qualified individual” who could perform the essential functions

of the Utility Person job with or without a reasonable accommodation. USS also argues that

Pontinen’s uncontrolled seizure disorder was not the “but for” cause of its decision to rescind

Pontinen’s conditional job offer. Pontinen filed a response in opposition on January 31, 2021.

USS filed a reply on February 12, 2021.

Discussion

Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is proper only if

it is demonstrated that “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);

Garofalo v. Vill. of Hazel Crest, 754 F.3d 428, 430 (7th Cir. 2014); Kidwell v. Eisenhauer, 679

F.3d 957, 964 (7th Cir. 2012); Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009). A fact

is material if it is outcome determinative under applicable law. The burden is upon the moving

party to establish that no material facts are in genuine dispute, and any doubt as to the existence

of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398

U.S. 144, 160 (1970); Stephens, 569 F.3d at 786.

When the movant has met its burden, the opposing party cannot rely solely on the

allegations in the pleadings but must “point to evidence that can be put in admissible form at

trial, and that, if believed by the fact-finder, could support judgment in [her] favor.” Marr v.

Bank of America, N.A., 662 F.3d 963, 966 (7th Cir. 2011); see also Steen v. Myers, 486 F.3d

1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859

(7th Cir. 2005) (summary judgment is “the put up or shut up moment in a lawsuit, when a party

must show what evidence it has that would convince a trier of fact to accept its version of the

events.”)). The non-moving party cannot rely on conclusory allegations. Smith v. Shawnee

Library System, 60 F.3d 317, 320 (7th Cir. 1995). Failure to prove an essential element of the

alleged activity will render other facts immaterial. Celotex, 477 U.S. at 323; Filippo v. Lee

Publications, Inc., 485 F. Supp. 2d 969, 972 (N.D. Ind. 2007) (the non-moving party “must do

more than raise some metaphysical doubt as to the material facts; she must come forward with

specific facts showing a genuine issue for trial”).

In viewing the facts presented on a motion for summary judgment, a court must construe

all facts in a light most favorable to the non-moving party and draw all legitimate inferences in

favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); McDowell v.

Vill. of Lansing, 763 F.3d 762, 764-65 (7th Cir. 2014). The trial court must determine whether

the evidence presented by the party opposed to the summary judgment is such that a reasonable

jury might find in favor of that party after a trial. Anderson, 477 U.S. at 248; Cung Hnin v. Toa,

LLC, 751 F.3d 499, 504 (7th Cir. 2014); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008).

In order to prevail on a disparate treatment claim under the ADA, an individual must

prove that (1) he was disabled; (2) he was qualified to perform essential functions with or

without reasonable accommodation; and (3) the disability was the “but for” cause of the adverse

employment action. 42 U.S.C. § 12112(a); Mlsna v. Union Pacific Railroad Company, 975

F.3d 629, 633 (7th Cir. 2020). To survive USS’ motion for summary judgment, Pontinen must

identify a genuine issue of material fact as to at least one of the three elements. Tonyan v.

Dunham’s Athleisure Corp., 966 F.3d 681, 687 (7th Cir. 2020) (citing Majors v. Gen. Elec. Co.,

714 F.3d 527, 533 (7th Cir. 2013)).

In the instant motion, there is no dispute that Pontinen was disabled. However, USS

argues that Pontinen was not a “qualified individual” who could perform the essential functions

of the Utility Person position with or without reasonable accommodation. 42 U.S.C. § 12113(a)

states that “it may be a defense to a charge of discrimination under [the ADA] that an alleged

application of qualification standards, tests, or selection criteria that screen out or tend to screen

out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-

related and consistent with business necessity, and such performance cannot be accomplished by

reasonable accommodation.” The term “qualification standards” “may include a requirement

that an individual shall not pose a direct threat to the health or safety of other individuals in the

workplace.” § 12113(b).

In order to determine whether an employee’s disability poses a “direct threat” to himself

or others in the workplace, four factors must be analyzed: (1) the duration of the risk; (2) the

nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and

(4) the imminence of potential harm.” Stragapede v. City of Evanston, Ill., 865 F.3d 861, 866

(7th Cir. 2017); 29 C.F.R. § 1630.2. An employer’s belief, even if in good faith, that a

significant risk exists based on an employee’s condition is not sufficient to relieve it from

liability. 865 F.3d at 867 (citing Bragdon v. Abbott, 524 U.S. 624, 649 (1998)). The defense

must be “based solely on ‘medical or other objective evidence.’” Stragapede, 865 F.3d at 867

(quoting Bragdon, 524 U.S. at 649). However, the Seventh Circuit has recognized testimonial

evidence as “sufficient to support [] a direct threat finding under the ADA.” Darnell v.

Thermafiber, Inc., 417 F.3d 657, 660 (7th Cir. 2005); see Bekker v. Humana Health Plan, Inc.,

229 F.3d 662, 671 (7th Cir. 2000) (finding that patients and employees reports of smelling

alcohol on the doctor while she was working was sufficient to support a finding that the doctor

posed a risk of harm to herself and others).

USS argues that Pontinen’s seizure condition posed a direct threat to the health and safety

of himself and others in the workplace if he were hired as Utility Person. In response, Pontenin

maintains that federal courts applying the “direct threat” framework routinely have found triable

issues of fact when analyzing the direct threat associated with isolated seizures.

USS claims that employees working in Utility positions are exposed to numerous safety

risks and are required to work in a heavy industrial environment with varying conditions. As

stated above, a Utility Person must have the ability work a significant portion of any particular

shift: a) at a height greater than five feet; b) operating hazardous machinery; c) performing

excessive ladder and stair climbing; and d) operating mobile equipment. As to the first factor,

the duration of the risk, USS argues that there is no dispute in the medical profession that

seizures are unpredictable, the symptoms can vary, the duration of the risk of seizures is

indefinite, and the risk would last as long as he was an employee at USS. In fact, USS claims

that Pontinen admitted that the symptoms from his last seizure varied from the symptoms he

experienced with other seizures.

Pontinen, in analyzing the duration of the risk, states that the duration of the potential risk

was not indefinite, but rather “fleeting” because of the brief nature and infrequency of his

seizures. In coming to that conclusion, Pontinen relies on two non-binding decisions. One being

Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2nd Cir. 2001). There, the Second

Circuit very briefly analyzed whether the plaintiff’s seizures posed a direct threat of harm to

himself and others and ultimately rejected the employer’s argument that the plaintiff was not a

qualified individual because the employer failed to provide any evidence that the plaintiff posed

a significant risk of harm. Lovejoy-Wilson, 263 F.3d at 220. The court only mentioned in

passing that the plaintiff’s seizures lasted “a few minutes or less.” 263 F.3d at 220.

The parties seem to have different interpretations as to whether the “duration of the risk”

means the duration of the seizure itself or the duration of the epileptic condition in general.

Courts have not adopted a uniform approach to this question. Some courts have analyzed the

actual duration of each episode caused by the medical condition, such as a seizure. See EEOC v.

Kinney Shoe Corp., 917 F.Supp. 419, 429 (W.D. Va. 1996) (finding no direct threat because the

plaintiff’s seizures only lasted “a few minutes or less”); Olsen v. Capital Region Medical

Center, 2012 WL 1232271, at *7 (W.D. Mo. April 12,2012) (stating that the “plaintiff’s seizures

lasted long enough to cause her to lose consciousness for a period of several minutes” when

analyzing the duration of risk factor and eventually finding the plaintiff was not a qualified

individual under the ADA). However, more courts have looked to the condition as a whole, and

this court agrees. See E.E.O.C. v. Rexnord Industries, LLC, 966 F.Supp.2d 829, 837 (E.D.

Wis. Aug. 20, 2013) (citing School Bd. Of Nassau County, Fla. V. Airline, 480 U.S. 273, 288

(1987) (“Generally speaking, if the risk is not controlled or controllable, the duration is indefinite

and thus would weigh more heavily in favor of a finding of direct threat”). The Supreme Court

and the Seventh Circuit have measured the duration of the risk by ascertaining whether the

medical condition can be controlled and whether the individual is actively engaged in controlling

it. See Airline, 480 U.S. at 288 (analyzing the duration of the risk by “how long the carrier is

infectious”); Darnell, 417 F.3d at 661 (classifying the plaintiff’s uncontrolled diabetes as a direct

threat); Bekker, 229 F.3d at 668 (finding that a doctor who suffered from alcoholism was not

qualified under the ADA even if the employer offered treatment as a reasonable

accommodation); Branham v. Snow, 392 F.3d 896, 907 (7th Cir. 2004) (finding that the

employee’s diabetes did not present a significant risk as he “test[ed] his blood sugar several

times a day, ha[d] exceptional control over his blood glucose levels and ha[d] ‘full awareness of

all his reactions,’ allowing him to respond promptly to low blood sugar levels”).

There is no dispute that Pontinen was not taking medication at the time he applied for the

Utility Person position and at the time of his fitness exam. In 2014, when Dr. Aita began treating

Pontinen, he noted “history of seizure disorder [] [wa]s not well controlled.” As a result, Dr.

Aita prescribed Depakote to control Pontinen’s condition. A few months later, on October 29,

2014, Dr. Aita noted that the “seizures [] seem[ed] to be well controlled by Depakote” and

warned Pontinen to “not miss [his] medication.” On February 25, 2015, Dr. Aita again noted

“history of generalized seizures [] seem[ed] to be well controlled so far with [] Depokote,” and

warned Pontinen “not to miss his medication.” On February 24, 2016, Dr. Aita noted that

Pontinen wanted to stop taking Depokote. Dr. Aita stated that “[Pontinen] [wa]s considering

being off of the Depakote totally [sic],” and told Pontinen, “since he had three seizures in his life

and he ha[d] a sister with seizures he [wa]s at higher risk of having seizures in the future.” Dr.

Aita “d[id] not recommend [that Pontinen] be[] off medication …” and warned him again to “not

miss taking [his] medication.” On February 22, 2017, Dr. Aita noted, that Pontinen still insisted

on being off the medication but that he “told [Pontinen] that he should be” on medication, but

“since it [wa]s [Pontinen’s] decision to get off the medication [he] w[ould] reduce the Depakote

to 500mg every night for a month and if no seizure[s] [occurred,] then stop it.” About three

months later, Pontinen applied for the position at USS.

Pontonin’s own neurologist stated that Pontenin’s epilepsy was not controlled when he

began treating him in 2014 but was under control when Pontinen began taking Depakote as

prescribed. There is a dispute on both sides as to whether Dr. Aita approved Pontien’s decision

to stop taking Depakote. Pontinen testified that he never would have gone off the medication

without Dr. Aita’s approval. He also argues that Dr. Aita’s records reflect that he did receive

approval. Therefore, Pontinen claims that there is a genuine dispute as to whether Dr. Aita

approved of him stopping medication.

Medical records from Dr. Aita verify that there is no factual dispute. Dr. Aita’s notes

from the February 22, 2017 appointment show that Dr. Aita did not approve of Pontinen’s

“decision” to stop taking the medication. The notes stated that at “the last visit he told [Dr. Atia

that] he d[id] not want to be on any medication. [Dr. Aita] told him that he should be, but [] he

[wa]s still asking [Dr. Aita] [] to stop [] the medication because he did not have any seizure[s].”

Dr. Aita “told him that he [wa]s at a higher risk of having seizures at any time.” But since going

off Depakote was “[Pontinen’s] decision,” Dr. Aita instructed Pointinen on how to properly

wean himself off the medication. Pontinen is twisting Dr. Aita’s willingness to instruct him on

how to wean himself off Depakote as approving of his decision to discontinue the anti-seizure

medication. As a result, Pontinen’s seizures were not controlled at the time he applied for the

Utility Person position at USS or during the fitness exam. Therefore, the duration of the risk

factor weighs in favor of USS.

The next factor weighed in determining whether a disabled individual poses a direct

threat to himself and others, thereby classifying him as “unqualified” under the ADA, is the

nature and severity of the medical condition. USS argues that the nature and severity of

Pontinen’s epilepsy was substantial. USS claims that Pontinen’s decision to stop anti-seizure

medication only increased the risk of harm to himself and others. USS states that its employees

must be vigilant when working at the Plant because of the hazardous nature of the job.

Specifically, the Utility Person has the duties of operating industrial equipment, using torches,

shovels, and other tools, using pneumatic equipment and power tools, working with hot and

heavy materials and hazardous chemicals, and assisting in inspecting and performing

maintenance on equipment. USS claims that if Pointenin suffered a seizure while working at

USS, the risks would be “catastrophic.” He could burn himself or cause others to be burned, fall,

be struck by equipment, or suffer a fatality. Additionally, he could suffer a seizure while

operating heavy machinery which could result in devastating injuries to himself or others.

However, Pontinen claims, based on his own testimony and Dr. Aita’s medical records,

that there are triable issues of fact existing with respect to the nature and severity of the potential

harm his condition posed. Pontinen points to the fact that before two of his seizures, in 2006 and

2014, he experienced a “warning signal” of fuzziness in his eye about 30 seconds to two minutes

prior to having the seizure. Pontinen claims that the signal gave him enough time to descend

from a ladder and prevent an injury. Therefore, if he got the signal while performing the

essential functions of Utility Person at USS, he would have enough time to stop what he was

doing and get to a place of safety. Pontinen also claims that the warning signal factored into Dr.

Aita taking him off of medication. Pontinen relies on Rexnord to support this proposition.

In Rexnord, the plaintiff began experiencing blackouts at age 13. 966 F.Supp.2d at 833.

While working for the defendant, the plaintiff experienced at least two blackouts within a three-

month period. 966 F.Supp.2d at 833-34. When the plaintiff went to the doctor, the doctor

diagnosed her with “possible” seizure disorder. 966 F.Supp.2d at 834. When she underwent a

fitness for duty exam, another doctor opined that she had an active seizure disorder which was

being treated, but it did create a direct safety risk to herself and others. 966 F.Supp.2d at 834.

The doctor did not recommend that the plaintiff return to work until the condition was

completely stabilized. 966 F.Supp.2d at 834. Shortly thereafter, the defendant terminated the

plaintiff. Rexnord, 966 F.Supp.2d at 834. In evaluating the nature and severity of the harm

posed by the plaintiff’s seizures, the court noted the doctor’s testimony that “anytime an

individual loses consciousness especially if they [sic] have no warning of that event, that loss of

consciousness can put them [sic] in a risky situation.” 966 F.Supp.2d at 838. However, the court

also noted that the plaintiff testified that she would “feel the blackouts coming on” and would

either tell her supervisor or go to the bathroom. 966 F.Supp.2d at 838-39. The court found that

the defendant’s reliance on the doctor’s testimony that losing consciousness would place the

plaintiff in a risky situation and the plaintiff’s testimony that she experienced warning signs

before the blackouts would occur created a genuine issue of material fact. 966 F.Supp.2d at 839.

As an initial matter, Pontinen’s argument that the warning signal he experienced factored

into Dr. Aita’s decision to wean him off Depakote is incorrect. As discussed above, Pontenin is

twisting the words of Dr. Aita’s medical records. Dr. Aita clearly stated that since it was

Pontinen’s decision to stop taking medication, Dr. Aita would instruct him on properly weaning

off the medication. Dr. Aita simply noted that Pontinen reported experiencing warning signals.

Next, the difference between the warning signals experienced by the plaintiff in Rexnord and

those experienced by Pontinen was the number of times the warning signals were experienced.

The plaintiff in Rexnord experienced two blackouts within three months, and both times she had

the same warning signals. Though it is unclear, it can be assumed that the plaintiff in that case

experienced the same warning signals many more times than Pontinen just based on the greater

number of blackouts that she reportedly had since age 13. Pontinen has had four seizures in his

life. There is mention that perhaps his most recent seizure was not a seizure, but nonetheless out

of the four seizures, he experienced warning signals only before two of them. This does not

seem to be consistent enough to definitely say that Pontinen will feel “fuzziness in his eye” prior

to having a seizure, therefore the severity of the risk posed by having a seizure while carrying out

the essential functions of a Utility Person would be minimal. This court is not bound by the

analysis of the court in Rexnord, though it does acknowledge that Pontinen’s testimony and Dr.

Aita’s notes state that he experienced warning signals. However, a jury could not reasonably

find that the nature and severity of the risk would be substantially lessened based on the warning

signals Pontinen experienced, mainly because of their inconsistency.

Lastly, USS argues that the severity and nature of Pontinen’s epilepsy was substantiated

by the fact that his condition was not controlled by medication. In their pleadings, the parties

dispute whether Pontinen missed his medication regularly when he was taking it. However, the

court does not see that fact as relevant. Rather, when measuring the nature and severity of the

risk of harm posed by Pontinenin’s epilepsy, the relevant inquiry is whether Pontinen’s condition

was under control at the time he applied for the position and underwent the fitness examination.

Pontinen was not on medication at the time he applied for the position or during the fitness exam

and gave no inclination that he would be resuming the medication any time in the future.

Therefore, his condition was not under control, and it presented a greater risk of seizures, as

pointed out by his own treating neurologist. As stated above, the court acknowledges the fact

that the Pontinen has had warning signals prior to some of his seizures, however the

inconsistency of the warning signs and the uncontrolled nature of his condition tips this factor

more in favor of USS.

The third factor to be considered is the likelihood that the potential harm will occur. USS

argues that the potential was great because Pontinen’s first three seizures occurred while he was

not medicated. Additionally, during his last three seizures he lost consciousness. USS also

claims that Pontinen’s decision to stop taking anti-seizure medication only heightened the risk

that he would have more seizures than he would have had if he continued medication. Pontinen

states that courts have looked at the type of injury experienced and whether the condition is

controlled in analyzing the likelihood of potential harm. He further claims that the fact he was

not injured during either of his seizures in 2006 and 2014, and the small amount of seizures he

experienced throughout his life, support a finding that harm was not likely to occur.

USS relies on Darnell to support its position. In Darnell, the plaintiff was a type-1

diabetic who was insulin dependent. 417 F.3d at 659. He was hired as a temporary employee for

the defendant-company for ten months. 417 F.3d at 659. A year later, the plaintiff applied for a

permanent position. 417 F.3d at 659. The company offered the plaintiff the job contingent upon

him passing a fitness exam. 417 F.3d at 659. The company manufactured mineral wool

insulation, and the essential functions of the plaintiff’s position included climbing tall ladders,

operating dangerous machinery, and lifting 80-pound pieces of fiber board. 417 F.3d at 658, 661.

During his fitness exam, the plaintiff stated that he did not have any “debilitating episodes”

caused by his diabetes while working, that he had not seen a doctor in months, but that his last

glucose test results were not good. 417 F.3d at 659. His poor glucose levels were confirmed by a

test. 417 F.3d at 659. He also explained that his levels were “good enough” and that he had no

interest in regulating his diabetes. 417 F.3d at 660. As a result, the doctor reported to the

company that the plaintiff was not capable of performing the essential functions of the job, and

the company rescinded its offer. 417 F.3d at 660. The plaintiff filed a discrimination claim

against the company, and the district court granted summary judgment in favor of the defendant.

Darnell, 417 F.3d at 659. On appeal, the Seventh Circuit disagreed with the plaintiff’s argument

that his failure to regulate his diabetes was not likely to cause substantial injury because “blood

sugar levels can fluctuate dramatically when diabetes go[] unregulated” causing

“unconsciousness, confusion and impaired judgment.” 417 F.3d at 661. Further, were the

plaintiff to “experience such symptoms [while working], the injury to himself or others could be

great.” 417 F.3d at 662. To the plaintiff’s argument that there was no proof that a harmful

episode would occur, the Seventh Circuit stated “where the plaintiff’s medical condition is

uncontrolled, of an unlimited duration, and capable of causing serious harm, injury may be

considered likely to occur.” 417 F.3d at 662. Additionally, “an employee with a health related

condition who has experienced no on-the-job episodes can still pose a direct threat to workplace

safety.” 417 F.3d at 662.

Pontinen argues that USS’ reliance on Darnell is not supported by the evidence here.

The court finds just the opposite. Pontinen’s epilepsy was uncontrolled at the time of the offer

and during the fitness exam, and he gave no indication that it would be controlled in the future.

Pontinen’s argument that he was “not dependent” on anti-seizure medication, unlike the plaintiff

in Darnell, is not supported by medical evidence. Once again, Dr. Aita’s notes indicated what it

took for Pontienen’s condition to be “controlled,” taking Depakote. Pontinen testified that he

lost consciousness during some of his seizures. Even though Pontinen was not injured during

any previous episode and he never experienced a seizure on the job, the likelihood of harm

resulting from a seizure while performing the hazardous functions of Utility Person still existed.

Additionally, Dr. Mark K. Gardner, USS’ acting Medical Director, testified that Pontinen was at

an elevated risk of having seizures in the future because he had a history of seizures, he recently

discontinued medication, and he already had experienced more than two unprovoked seizures.

As the Seventh Circuit stressed, “where the plaintiff’s medical condition is uncontrolled, of an

unlimited duration, and capable of causing serious harm, injury may be considered likely to

occur.” Therefore, the court finds that there was a substantial likelihood of harm to occur to

Pontinen or others if he worked at USS as a Utility Person while his epilepsy remained

uncontrolled.

The last factor to be weighed in the direct threat framework is the imminence of potential

harm caused by Pontinen’s condition. Pontinen argues that the record does not support a finding

that the potential harm was imminent by stating he only had two seizures in his adult life, neither

resulted in injury, and prior to each he experienced a warning signal. For the same reasons that

there was a substantial likelihood that harm would occur, the potential harm also was imminent.

Seizures are unpredictable and can cause different symptoms each time. This is validated by

Pontinen’s testimony that he felt different symptoms during his fourth seizure than during the

others. Dr. Aita stated that Pontinen’s risk of experiencing seizures was higher if he was not on

medication. Being exposed to a higher risk of experiencing seizures with unpredictable outcomes

points to a finding of a direct threat of safety. After analyzing the direct threat framework and

Pontinen’s inability to establish any material dispute of relevant facts, the court finds that his

uncontrolled epileptic condition would have posed a direct threat to the health and safety of

himself and others while working at USS.

In relation to determining whether Pontinen’s condition posed a direct threat of safety, he

argues that USS did not engage in an expressly individualized assessment of his history of

seizures. Pontinen claims that when applying the direct threat analysis to an individual with a

history of isolated seizures, there must be a distinction between a categorical assessment of the

effects of the seizures and an individual assessment of the specific nature of the seizures suffered

by an individual. Pontinen relies on a Western District of Virginia case to support his position.

There the court held that:

“the degree of disruption caused by the employee’s disability must be

substantial in order to render an employee unqualified. Otherwise, …

the court would be validating the position that persons susceptible to

debilitating epileptic seizures are, as a matter of law, unqualified to

hold any job since such seizures will cause some disruption in most, if

not all, work environments. In short, whether the seizures in this

particular case were disruptive enough to render [the plaintiff]

unqualified must be determined by reference to the frequency and

effects of seizures.”

Kinney, 917 F.Supp. at 428. While the court is not bound by this finding, it is important to note

that the ultimate finding of the Kinney court, that summary judgment should not be granted in

the employer’s favor, was that the frequency and effect of the plaintiff’s seizure remained

disputed. 917 F.Supp. at 428. There is no dispute here. Pontinen testified that he has had four

seizures in his life, that during three of them he became unconscious, and that the symptoms

varied somewhat with all four. Additionally, the sought-after position in Kinney was a sales’

manager. 917 F.Supp. 422-23. While there were physical requirements of that type of job, the

hazardous nature of the Utility Person position at USS does not come close in comparison.

Pontinen also maintains that the testimony of all medical personnel involved in

conducting his fitness examination and reviewing the results demonstrates that Pontinen was

categorically disqualified because of his prior seizures. Specifically, he claims that the Ntovas’

conclusion, that he should have been on medication and that he stopped it without approval, was

premature because she had not reviewed all of his medical records or had not spoken with Dr.

Aita. While Ntovas may have reached that conclusion, she made no recommendation to human

resources at that point. Rather, she instructed Pontinen to be reexamined by Dr. Aita, provide

medical records, and present a medical referral form to Dr. Aita to be completed and returned to

USS. Even so, Pontinen’s own statements to Ntovas were sufficient to support a finding of a

direct threat under the ADA. See Thermafiber, 417 F.3d at 660 (finding the plaintiff’s statement

to the physician that he does control his diabetes nor has any intention to was sufficient in

finding a direct threat even though the physician had not consulted the plaintiff’s medical chart

because “additional testing was unnecessary because the results could not have refuted the fact

that [the plaintiff] was unmotivated to control his diabetes”]. Pontinen was unmotivated to

control his epilepsy and that was apparent by his statements to Ntovas and the testimony in this

case. Dr. Aita did not approve of discontinuing the medication, and the only time Dr. Aita stated

Pontinen’s condition was controlled was when he was taking Depakote. What Ntovas was

thinking and what she wrote in her notes during the exam was irrelevant, not only because no

final decision actually was made at that time, but also because Pontinen’s statements alone

warranted a finding that his uncontrolled seizure condition posed a direct threat to the health and

safety of himself and others if he were to by employed as Utility Person at USS.

Lastly, there is some debate as to whether the work restrictions that Dr. Aita put in place

were reliable. Following Pontinen’s August 2014 seizure, Dr. Aita put work restrictions in place

which included no operating the forklift, no working on the elevated catwalk, no working from

heights, and avoid heavy machinery. Pontinen testified that those work restrictions were only

temporary and in place for two weeks. However, Dr. Aita’s medical records do not verify that,

and there was no mention that such restrictions ever were lifted. When Pontinen was instructed

by Ntovas to take the medical referral form to Dr. Aita following the fitness exam, Pontinen

testified that Dr. Aita said that he would clear Pontinen for work at USS if Pontinen underwent

an EEG and test results came back clear. The EEG results showed no abnormalities. Dr. Aita

noted that Pontinen was off anti-seizure medication and signed the referral form clearing

Pontinen for work with no restrictions at USS, stating that Pontinen did not pose a safety risk to

himself or others.

Pontinen argues that Dr. Aita’s decision to clear him to work at USS with no restrictions

makes him a qualified individual under the ADA. USS claims that Dr. Aita’s decision was not

reliable because Dr. Aita had not conducted a thorough assessment of Pontinen and the Utility

Person position before he came to that conclusion, his opinion of no restrictions was inconsistent

with and contradicted by his previous records, and his opinion did not consider the Department

of Transportation’s Federal Motor Carrier Safety Administration’s (DOT) Medical Handbook

regulations and all of the essential job functions of the Utility Person position.1 Pontinen testified

1 The DOT guidelines state that a person is physically qualified to drive a motor vehicle if he

“has no established medical history of clinical diagnosis of epilepsy or any other condition

which is likely to cause loss of consciousness or any loss of ability to control a commercial

motor vehicle.” 49 C.F.R. 391.41(b)(8).

that he gave Dr. Aita a list of the Utility Person position’s essential functions. Pontinen does not

dispute that Dr. Aita did not consider DOT guidelines, but rather argues that the Medical

Referral form did not instruct Dr. Aita to do so.

There is no requirement that an employer accept a treating physician’s findings, as long

as “an individualized assessment” of each of the employee’s “actual condition[s], rather than a

determination based on general information about how an uncorrected impairment usually

affects individuals.” Branham v. Snow, 392 F.3d 896, 903 (7th Cir. 2004); see Homeyer v.

Stanley Tulchin Assocs., Inc., 91 F.3d 959, 962 (7th Cir. 1996) (“some impairments may be

disabling for particular individuals but not for others …”). If USS was required to follow Dr.

Aita’s findings, the requirement for an individual assessment of Pontinen’s epilepsy would be

meaningless. However, USS medical personnel conducted a day-long assessment with multiple

tests and still did not make any decisions as to Pontinen’s restrictions until information from Dr.

Aita was received. Nonetheless, as discussed above, Pontinen’s own statements warranted a

direct threat finding. See Darnell, 417 F.3d at 660-61.

USS also argues that Pontinen’s uncontrolled seizure condition was not the “but for”

cause of its decision to rescind Pontinen’s conditional offer of employment. However, since

Pontinen’s condition posed a direct threat of health and safety to himself and others employed by

USS, the court does not find it necessary to address the “but for” argument. Thus, Pontinen

discrimination claim fails as a matter of law.

Based on the foregoing reasons, the Motion for Summary Judgment [DE 24] is

GRANTED. This matter is DISMISSED.

ENTERED this 8th day of March, 2021.

/s/ Andrew P. Rodovich

United States Magistrate Judge