Driving is not a major life activity under the Americans with Disabilities Act, even in rural Wyoming, where public transportation is virtually nonexistent and distances between towns are measured by hours rather than miles, an appellate court has ruled.

The October 15 ruling in Kellogg v. Energy Safety Services Inc. overturns a Wyoming District Court ruling that held the employer discriminated against Ireane Kellogg, a safety technician, in violation of the ADA when it fired her after she was diagnosed with epilepsy.

Energy Safety Services, an Arizona corporation doing business as Oilind Safety, is an industrial-safety company that provides training, environmental monitoring and other services to industrial customers. As part of her job, Kellogg traveled by company truck from the company’s Worland, Wyoming, office, to oilfields to provide services to clients. After her diagnosis, however, Kellogg’s doctor issued her a note ordering her not to drive until he decided it was safe.

Kellogg sued her employer in U.S. District Court in Cheyenne, Wyoming, on May 5, 2006, alleging discrimination under the ADA as well as violations of the Fair Labor Standards Act, saying she was entitled to overtime compensation that had not been paid. The jury found on her behalf on both claims and awarded her damages. In addition, the district court awarded Kellogg prejudgment interest, front pay under the ADA, liquidated damages under the Fair Labor Standards Act and attorney fees.

Oilind appealed, and a three-judge panel of the10th U.S. Circuit Court of Appeals in Denver on Wednesday, October 15, vacated the jury’s verdict on the ADA claim and remanded the case for a new trial, but it upheld the Fair Labor Standards Act verdict and the district court’s award of liquidated damages. Circuit Judge William Judson Holloway Jr. dissented.

Plaintiff’s attorney Bruce S. Asay of Associated Legal Group in Cheyenne said he had not yet discussed with his client whether to seek a rehearing by the full 10th Circuit or to proceed with a new trial.

“Since Wyoming is such a rural state, the court should have found that driving is a major life activity under the ADA,” he said.

Defendant’s attorney Catherine MacPherson, of MacPherson, Kelly & Thompson in Rawlins, Wyoming, was unavailable for comment.

Filed by Joanne Wojcik of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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