TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................................ ii

INTRODUCTION........................................................................................ 1

ARGUMENT

I. Factual Issues Regarding Duty’s Perceived Inability to Climb in Accordance With Industry Safety Standards Preclude Summary Judgment.

A. Jarrard’s Perception Extended Beyond a Single Job or Group of Jobs. 4

B. BNSF’s Suggestion in Duty’s Rejection Email that He Might Be

Qualified For Clerical Or Administrative Jobs Does Not Prove

He Was Not Regarded As Substantially Limited in Working............. 10

C. EEOC Did Not Waive Its Argument Concerning

“Functional Hook Grip.”..................................................................... 13

D. BNSF’s Other Arguments Do Not Require Affirmance. ................... 17

II. Factual Issues Regarding Duty’s Perceived Inability to Use Tools

Preclude Summary Judgment..................................................................... 20

III. BNSF’s Other Arguments Do Not Warrant Summary Judgment.

A. The Expert Report Provides Useful Information About

the Number of Jobs From Which Duty Would be Disqualified

If BNSF’s Perceptions About His Abilities Were True................... 26

B. Insisting That the Company Comply with the Law

Does Not Constitute Second-Guessing BNSF’s

ADA-Permitted Employer Prerogatives........................................... 29

CONCLUSION............................................................................................ 31

CERTIFICATE OF COMPLIANCE......................................................... 32

CERTIFICATE OF DIGITAL SUBMISSIONS........................................ 33

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Page(s)

Carlile v. Conoco,

23 F. App’x 963 (10th Cir. 2001)............................................................ 7

Chevron USA v. Echazabal,

536 U.S. 73 (2002) ................................................................................. 30

Davidson v. America Online,

337 F.3d 1179 (10th Cir. 2003)............................................................... 30

Dillon v. Mountain Coal Co., LLC,

569 F.3d 1215 (10th Cir. 2009).............................................................. 6-7

EEOC v. Burlington Northern & Santa Fe Railway Co.,

211 F. App’x 682 (10th Cir. 2006)..................................................... 6, 16

EEOC v. Heartway Corp.,

466 F.3d 1156 (10th Cir. 2006).................................................. 8-9, 21, 22

Fischer v. Minneapolis Public Schools,

16 F.Supp.3d 1012 (D. Minn. 2014)

aff’d, 792 F.3d 985 (8th Cir. 2015)..................................................... 22-23

Justice v. Crown, Cork & Seal Co.,

527 F.3d 1080 (10th Cir. 2008)........................................................ passim

Leone v. Owsley,

810 F.3d 1149 (10th Cir. 2015)30........................................................... 30

Lucas v. Miami County, Kansas,

9 F. App’x 809 (10th Cir. 2001)............................................................. 10

McDonnell v. United States,

__ S. Ct. __, 2016 WL 3461561 (2016) ............................................ 11-12

McGeshick v. Principi,

357 F.3d 1146 (10th Cir. 2004)............................................................... 12

Rakity v. Dillon Cos.,

302 F.3d 1152 (10th Cir. 2002)............................................................... 22

Richison v. Ernest Group,

634 F.3d 1123 (10th Cir. 2011)......................................................... 14, 17

Sorensen v. University of Utah Hospital,

194 F.3d 1084 (10th Cir. 1999) ..................................................... 8, 10-11

Sutton v. United Air Lines,

527 U.S. 471 (1999).................................................................... 7-8, 28-29

Tabor v. Hilti, Inc.,

703 F.3d 1206 (10th Cir. 2013)............................................................... 17

Tennille v. Western Union Co.,

785 F.3d 422 (10th Cir. 2015)................................................................. 16

Williams v. Long Island Railroad Co.,

618 F. App’x 716 (2d Cir. 2015).............................................................. 7

STATUTES, REGULATIONS, and RULES

Americans with Disabilities Act,

42 U.S.C. §§12101 et seq. ............................................................... passim

42 U.S.C. §12112(b)(6)........................................................................... 30

29 C.F.R. pt. 1630 App................................................................................ 27

District of Kansas Local Rule 7.6(a)............................................................. 17

OTHER AUTHORITY

EEOC Compliance Manual §902.4............................................................... 27

https://www.csx.com/index.cfm/working-at-csx/job-overviews ................... 11

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________________

No. 15-3265

_______________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

and

KENT DUTY,

Plaintiff/Intervenor,

BNSF RAILWAY CO.,

Defendant-Appellee.

______________________________________

On Appeal from the United States District Court

for the District of Kansas

The Honorable John W. Lungstrum, D.J.

No. 2:12-cv-2634-JWL

_______________________________________

REPLY BRIEF OF APPELLANT

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

_______________________________________________________

INTRODUCTION

The Commission is appealing the dismissal on summary judgment of this enforcement action under the pre-amendments Americans with Disabilities Act, 42 U.S.C. §§12101 et seq. (“ADA”). EEOC alleges that BNSF refused to hire Kent Duty, an experienced electrician with a withered, but still functional, right hand and arm, for the position of Locomotive Electrician because it regarded him as substantially limited in the major life activity of working — specifically, doing the class or broad range of jobs requiring climbing in accordance with industry safety standards (the three-point contact rule) and/or using tools with two hands. Our opening brief cited evidence that the decisionmaker, Dr. Michael Jarrard, mistakenly believed that, because of his impairment, Duty could not grasp anything with his right hand, but only with his right wrist (or elbow). If Jarrard’s perception were correct — it is not — Duty could not satisfy any version of the three-point contact rule, including BNSF’s so-called “mandatory” rule that employees must be able to hang by a single hand (left and right) in case their feet become dislodged while climbing. We also cited Jarrard’s testimony that BNSF’s three-point contact rule is not materially different from the rule used elsewhere, including at General Motors and OSHA-regulated industries. From this, we argued, a jury could find that Jarrard believed that Duty could not do any jobs requiring climbing in accordance with the three-point contact rule, an industry safety standard. And if he were unable to grasp with his right hand, he likewise could not use a variety of tools requiring two hands; that would exclude him from most skilled labor jobs, including Locomotive Electrician. Finally, we noted that BNSF may not screen out impaired individuals like Duty for failing to satisfy its version of the three-point contact rule, a qualification standard, unless the company proves conclusively that the standard is “uniformly enforced”: that individuals without impairments — regardless of weight, gender, age, and fitness level — are also tested and rejected if they fail. BNSF, we argued, proffered no such proof.

Three themes run through BNSF’s responsive brief. First, Jarrard did not regard Duty as disabled but simply rejected him because he could not satisfy a specialized safety standard (the so-called “mandatory” three-point contact rule) for a specialized job (Locomotive Electrician) in a specialized industry (railroads). BNSF repeats this theme as if it were a fact, but it is actually an inference, drawn in BNSF’s favor. As noted above, EEOC has contrary evidence and, on summary judgment, all inferences must be drawn in EEOC’s favor, not BNSF’s. BNSF never pays even lip service to the summary judgment standard.

Second, BNSF’s three-point contact rule is unique and mandatory. But EEOC has contrary evidence on the first point — Jarrard’s testimony that BNSF’s standard is not materially different from that used at other companies. If believed by the jury, this evidence would support a finding that Duty was perceived as being unable to comply with a safety standard that Jarrard believed was industry-wide. As for the second point, BNSF simply asserts and reasserts that the standard is “mandatory,” adding that it will handle “qualification” issues, if at all, on remand. However, without proving that the standard truly is “mandatory” — that is, uniformly enforced — for all employees, disabled and otherwise, BNSF is not entitled to summary judgment because the company cannot legally reject Duty for failing to satisfy a standard that applies only to persons with disabilities.

Third, any perceived inability to use tools with two hands has nothing to do with Duty’s rejection. According to BNSF, while Jarrard was initially concerned about Duty’s ability to use tools with two hands, he stopped having that concern before deciding to reject Duty. But Jarrard made no such statement. Moreover, based on statements Jarrard did make regarding Duty’s perceived inability to grasp with his right hand, a jury could find that, if Jarrard’s perceptions were correct, Duty would be substantially limited in performing a class or broad range of jobs requiring tool use.

ARGUMENT

I. Factual Issues Regarding Duty’s Perceived Inability to Climb in Accordance With Industry Safety Standards Preclude Summary Judgment.

A. Jarrard’s Perception Extended Beyond a Single Job or Group of Jobs.

In our opening brief, we argued that a jury could find that BNSF — that is, Jarrard — regarded Duty as substantially limited in working within the meaning of the pre-amendments ADA. We noted that Jarrard testified that the three-point contact rule at BNSF — however that rule is defined — is not materially different from the rule at other companies, such as General Motors. We argued that because, in Jarrard’s view, Duty’s impairment prevented him from complying with BNSF’s three-point contact rule, a jury could find that Jarrard also believed that the impairment would prevent Duty from complying with the same rule elsewhere. This adds up to a class or broad range of jobs requiring climbing in accordance with industry safety standards. EEOC-BR.40-44.

Rather than respond to this argument directly, BNSF’s responsive brief asserts, as fact, that Jarrard regarded Duty as unable to do only one job — Locomotive Electrician. BNSF-BR.40. According to the company, the problem was not with climbing generally: Jarrard testified he knew that Duty “reportedly” had climbed ladders; he just could not comply with BNSF’s three-point contact rule. BNSF-BR.45-46. Nor, the company contends, did Jarrard regard Duty as unable to work as an electrician: he knew Duty did electrical work at Pride Cleaners. BNSF-BR.39-40. The company then cites various cases for the proposition that a plaintiff cannot establish that he was regarded as substantially limited in working by showing only that he was disqualified from a single job or even a group of jobs at one employer. BNSF-BR.39-43.

To begin with, we note that during the litigation, Jarrard saw a videotape of Duty climbing (BNSF-BR.19-22), so his subsequent testimony about what he thought Duty could do says little about his perceptions when he rejected Duty, sight unseen, in December 2008.

More importantly, however, BNSF’s arguments are beside the point. As the district court recognized, the Commission is not arguing that Duty was excluded from a single job or a group of jobs at BNSF, nor that Jarrard believed Duty could not use a ladder to change a lightbulb. Rather, our point is that Jarrard believed Duty’s impairment prevented him from doing jobs requiring “climbing ladders in compliance with an industry-wide three-point contact safety rule” (APP-1773) — a class or broad range of jobs in the applicable geographic area that would support a finding that he was regarded as substantially limited in working. Moreover, we cited supporting evidence, such as Jarrard’s testimony that the three-point contact rule at a variety of other companies is not materially different from the rule at BNSF. (vol.IV)APP-1113, 1147-48. BNSF never grapples with this evidence.

BNSF’s cited cases are also beside the point. BNSF-BR.39-41 & n.11. For example, in EEOC v. Burlington Northern & Santa Fe Railway, which BNSF describes as “instructive” (BNSF BR-40-41), the charging party was excluded, due to a prior injury, from all “train service” jobs at BNSF. The district court granted summary judgment, holding that “train service” jobs at BNSF did not constitute a class of jobs. 211 F.App’x 682, 685-86 (10th Cir. 2006). Similarly, in Dillon v. Mountain Coal Co., the Court rejected a regarded-as-working argument where plaintiff argued he was excluded from jobs within the company under the 100% healed policy, but produced “no evidence describing the jobs available in the applicable geographic area,” as required by EEOC regulations. 569 F.3d 1215, 1219-20 (10th Cir. 2009). [1] Here, in contrast, the evidence is that, if Jarrard’s perceptions were correct, Duty would be excluded from all or most jobs, in the applicable geographic area, requiring climbing in compliance with industry safety standards — a class or broad range of jobs.

BNSF also quotes, without explanation, a passage from Sutton v. United Air Lines, 527 U.S. 471, 492 (1999), which states that an individual “is not precluded from a substantial class of jobs” if jobs utilizing the individual’s skills are available, and he is not precluded from a broad range of jobs “if a host of different types of jobs are available.” BNSF-BR.36. Although BNSF does not do so, the passage from Sutton must be read in context. The Supreme Court explained that, when determining substantial limitation, the baseline for comparison is “‘an average person with comparable training, skills, and abilities.’” 527 U.S. at 491 (quoting EEOC’s regulations). The Sutton plaintiffs were challenging their disqualification from the job of “global airline pilot.” “Global airline pilot” is not a class of jobs, and there is no evidence plaintiffs were disqualified from other jobs that an average person with comparable training, skills, and abilities could do. Id. at 493 (suggesting, as possibilities, regional pilot, pilot instructor, and pilot for courier service); cf. Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1089 (10th Cir. 1999) (nurse with multiple sclerosis was not regarded as substantially limited in working where employer denied reinstatement as “flight nurse” but offered numerous other nursing opportunities). Here, an average person with training, skills, and abilities comparable to Duty’s could do well-paid work as an electrician or other skilled laborer with a large, safety-conscious employer that requires compliance with the three-point contact rule. However, if Jarrard’s (pre-videotape) perceptions about Duty’s impairment were correct — they are not — Duty would be disqualified from such jobs because he could not comply with the industry-wide safety standard. See Justice v. Crown, Cork & Seal Co., 527 F.3d 1080, 1088 (10th Cir. 2008) (explaining that to be regarded as substantially limited in working, a plaintiff need not show he was perceived as disqualified “from every job imaginable”).

Our opening brief relied on EEOC v. Heartway Corp., 466 F.3d 1156, 1159-60 (10th Cir. 2006), where this Court upheld a jury finding of disability under a regarded-as-working theory. EEOC-BR.37-39, 45. BNSF attempts to distinguish the case in a footnote. According to the company, the decisionmaker in Heartway “made comments reflecting that he perceived the [charging party], who had Hepatitis C, as unable to work in any kitchen or healthcare environment” whereas here, there are no such comments. BNSF-BR.44 n.12; see also BNSF-BR.42-43 (similarly assuming regarded-as-working finding required no inference in Justice). The distinction fails.

In fact, the decisionmaker in Heartway did not state that the charging party should never work in a kitchen or healthcare environment. That is the inference the jury drew from the decisionmaker’s comment to the charging party: “You having Hepatitis C, you will not work in our kitchen”; and to EEOC’s investigator: “How would you like to eat food containing her blood, if she ever cut her finger?”; “if this got out to [our] clients, [there would be] a mass exodus from [the] nursing home.” 466 F.3d at 1165-67. Similarly, here, Jarrard testified that he assumed Duty’s impairment would prevent him from grasping things with his right hand; he could use only his wrist or elbow. Jarrard also testified that Duty could not comply with BNSF’s three-point contact rule ((vol.IV)APP-1125), and that numerous other companies had three-point contact rules that were not materially different from BNSF’s. (vol.IV)APP-1113, 1147-48. As in Heartway (and Justice), a jury could infer from these comments that Jarrard perceived Duty as unable to climb in accordance with safety standards, both at BNSF and industry-wide.

Finally, BNSF asserts, as fact, that Jarrard “gave no thought at all, as far as the record shows, to other jobs in the economy.” His only concern, the company contends, was Duty’s ability to do the one job in the “specialized railroad environment.” BNSF-BF.44. But that is not a fact. It is an inference that BNSF could ask a jury to draw. EEOC proffered facts from which a jury could draw a contrary inference and, on summary judgment, all reasonable inferences must be drawn in EEOC’s favor, not BNSF’s.

B. BNSF’s Suggestion in Duty’s Rejection Email that He Might Be

Qualified For Clerical Or Administrative Jobs Does Not Prove

He Was Not Regarded As Substantially Limited in Working.

In our opening brief, we addressed an argument BNSF made below that because the December 2008 email rejecting Duty from the Locomotive Electrician position suggested that he “may be” qualified for certain clerical and administrative positions — specifically, clerk, dispatcher, and yard-master — he was not regarded as substantially limited in working. We argued that the cases BNSF cited to support this position stand for a narrower proposition — that the positions the employer proposes should be similar to those for which the individual was rejected. See EEOC-BR.48-49 (citing, e.g., Lucas v. Miami Cnty, Kan., 9 F.App’x 809, 813 (10th Cir. 2001) (fact that employer offered law enforcement officer with back impairment another law enforcement job is evidence he was not regarded as disabled); Sorensen, 194 F.3d at 1088-89 (plaintiff removed from flight nurse position due to impairment not regarded as substantially limited in working where employer provided other nursing opportunities)). We pointed out that those cases are inapposite here because the jobs BNSF suggested Duty might consider are nothing like the Locomotive Electrician position. EEOC-Br.48-49 (citing APP-1313).

BNSF responds with three arguments. BNSF-BR.37-38. First, without offering other descriptions, BNSF takes issue with EEOC’s characterization of the jobs as clerical or administrative. A jury could find the characterizations fair. “Clerk” is self-explanatory. A “dispatcher,” also considered clerical, “directs and coordinates the safe movement of railroad traffic on a specified territory from a central and/or regional location.” https://www.csx.com/index.cfm/working-at-csx/job-overviews. As for yard-master (assistant or chief), it is an “intermodal” operations and support position where the goal is to ensure efficient and prompt movement of trains in accordance with billing instructions. See id. These are unionized positions, and Duty would have no seniority. None resembles Locomotive Electrician.

Second, the company notes that it did not state Duty “was” — the email actually says “may be” — “qualified only for those [three] jobs.” BNSF-BR.38. That is technically true. “Under the familiar interpretive canon noscitur a sociis,” however, “a word is known by the company it keeps.” McDonnell v. U.S., __ S.Ct. __, 2016 WL 3461561, *13 (2016) (citation omitted). Jobs “such as” clerical or administrative positions would not encompass skilled labor jobs including electrician, nor other jobs requiring climbing (or tool use).

Third, BNSF asserts that merely “encourag[ing] Duty to apply for other jobs” — any jobs — “within BNSF alone defeats EEOC’s argument that BNSF considered Duty to be substantially limited in working.” BNSF-BR.37. As authority, BNSF cites McGeshick v. Principi, 357 F.3d 1146 (10th Cir. 2004). It is unclear from the facts in McGeshick what other jobs the employer there thought plaintiff, a housekeeping aid with vertigo, could do. Cf. Justice, 527 F.3d at 1089 (no indication McGeshick’s employer considered him “disqualified for the entire class of similar housekeeping jobs”). BNSF’s interpretation of the case cannot be squared with Justice, 527 F.3d 1080. In Justice, this Court held that a plaintiff who was denied reinstatement as an electrician due to vertigo survived summary judgment on whether he was regarded as substantially limited in working despite being offered work as a janitor. The Court reasoned that the plaintiff did not have to prove that he was regarded as unable to do “every job imaginable” but only a class of jobs involving electrical work. Id. at 1089. Under BNSF’s view, however, a plaintiff would have to rule out every job imaginable. So if BNSF’s in-house counsel were terminated because she developed a speech impediment, for example, the company could conclusively establish that she was not perceived as substantially limited in the class or broad range of jobs including attorney as long as the termination notice contained a suggestion that she consider applying for jobs such as clerk or manual laborer. BNSF is wrong in suggesting that this Court has ever taken such a nonsensical position.

C. EEOC Did Not Waive Its Argument Concerning “Functional

Hook Grip.”

In our opening brief, we argued that Jarrard misinterpreted the term “functional hook grip,” which he had seen in the follow-up Woods report ((vol.V)APP-1310-11). Based on this misinterpretation, Jarrard assumed — incorrectly — that Duty could not use his right hand, but only his wrist (or perhaps elbow), to grasp things such as the rungs of a ladder. If true, we argued, Duty would be precluded from doing any job requiring climbing in accordance with the three-point contact rule, not only at BNSF but also industry-wide. EEOC-BR.40-44.

BNSF responds by urging this Court to treat this argument as waived. According to the company, in opposing summary judgment, the Commission “pointed to that statement and testimony” — that Jarrard misunderstood the term “functional hook grip” —“only to support an argument that Duty was perceived as substantially limited in doing manual tasks.” Thus, the company contends, “neither BNSF nor the district court had the opportunity to address the argument” in connection with “the major life activity of working,” which is how the Commission is using the evidence on appeal. BNSF-BR.50-52.

This contention should be rejected. The argument was clearly not waived, nor should it be considered forfeited. See Richison v. Ernest Grp., 634 F.3d 1123, 1128 (10th Cir. 2011) (“[w]aiver is accomplished by intent”; forfeiture “through neglect”). BNSF is partially correct in that EEOC’s Opposition to Summary Judgment argued the functional hook grip point most directly in the paragraph regarding perceived manual tasks, immediately following the working argument. APP-995. BNSF is wrong, however, that the Commission “pointed to” the statement and testimony “only in connection to [that] argument” and that the company “had [no] opportunity to address the argument” in the context of working (BNSF-BR.50). In fact, the evidence and argument were raised and responded to in EEOC’s Statement of Material Facts (“SAMF”) and BNSF’s Reply, where both EEOC and BNSF expressly linked them to the major life activity of working and, particularly, climbing.

Specifically, EEOC’s SAMF #105 states: “At the time Jarrard made the decision to revoke Duty’s conditional job offer, he believed that the only way Duty could hold on to a ladder with his right hand was by hooking his wrist around it. (P6, Jarrard Dep.190:17–191:14).” APP-977. This fact was cited to the court as support for the statement that BNSF believed Duty could not “climb ladders and other equipment in compliance with the three-point contact rule.” APP-989. The point was also raised in SAMF ##72-73, and in response to BNSF’s SAMF #16. See APP-965-66 (SAMF ##72-73, quoting the relevant testimony from Jarrard’s deposition and stating, based on Jarrard’s erroneous interpretation of the term “functional hook grip,” that Jarrard concluded that Duty could not safely do the Locomotive Electrician job, citing Jarrard’s 2013 Dep.232, 190-91, 236); APP-925 (response to BNSF’s SAMF#16: “(e) At the time Jarrard made the decision not to revoke Duty’s conditional job offer, he believed that the only way Duty could hold on to a ladder with his right hand was by hooking his wrist around it,” citing Jarrard’s 2013 Dep.190-91).

Moreover, BNSF had and took the “opportunity” to address the argument below. Indeed, the company responded at some length, both disagreeing with the inferences that could be drawn from EEOC’s factual statements and offering its own version of the facts, thereby creating a genuine dispute of material fact. As here, the company asserted that Jarrard’s misunderstanding of Woods’ report was not relevant because Jarrard was concerned with Duty’s inability to properly “grasp an object such as ... a rung or other climbing device with his right hand” as well as lack of grip strength and inability to “pinch.” The company added, “even if Duty could use a ‘functional hook grip,’ he could not comply with BNSF’s three-point contact requirement.” APP-1690-91, APP-1712-13. Having made an argument below regarding climbing (that is, the major life activity of working), BNSF cannot now suggest that it assumed EEOC was limiting the functional hook grip evidence to manual tasks.

Nor would such an argument make sense. If Jarrard thought that Duty could not use his right hand to grasp for purposes of doing manual tasks, a jury could find that he likewise did not believe that Duty could use his hand to grasp while climbing or using tools. Accordingly, this Court should find that the argument was, at a minimum, “before the district court in some form.” Tennille v. W. Union Co., 785 F.3d 422, 429-30 (10th Cir. 2015).

BNSF is incorrect when it says that what happened here is “the same” as what happened in Burlington Northern, 211 F.App’x 682. BNSF-BR.50-51. The cases are very different. There, this Court concluded that the Commission’s appellate brief expanded the class of jobs based on an interpretation of the collective bargaining agreement. The Court stated that it had reviewed EEOC’s district court brief “without encountering this contention.” 211 F.App’x at 686 & n.4. Here, in contrast, the issue was aired in EEOC’s district court brief — the Statement of Material Facts — and BNSF’s reply, and the testimony relied on is from Jarrard, BNSF’s primary witness, so the company was well aware of what he had said.

Moreover, even if the Court were to conclude that EEOC had somehow forfeited this argument, the Court should exercise its discretion and consider it. BNSF could and did argue the issue; the facts were before the court and would permit a finding that Jarrard regarded Duty as substantially limited in working. The parties were required to include Statements of Material Facts, with supporting record references, in their summary judgment briefs. D. Kan. Loc. R. 7.6(a). Since the issue and evidence were clearly presented there, the court’s failure to address the argument should be considered plain error. And, because it led to summary judgment despite the disputed issues of material fact, this error seriously affected the fairness of the proceedings. See, e.g., Richison, 634 F.3d at 1127-28 (reversing forfeited argument for plain error affecting substantial rights and seriously affecting fairness, integrity, or public reputation of judicial proceedings). The Court should therefore consider this argument on appeal.

D. BNSF’s Other Arguments Do Not Require Affirmance.

In addition to waiver, BNSF makes three main arguments for why EEOC’s functional hook grip argument should fail. All three rely on inference, but this is summary judgment where the court must “view facts in the light most favorable to [plaintiffs] and draw all reasonable inferences in their favor.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (citation omitted).

First, the company complains that EEOC “obstinately” refused to accept the “undisputed evidence” about the terms of BNSF’s three-point contact rule. BNSF-BR.49-51. “Obstinate” or not, the terms of BNSF’s rule are not “undisputed.” Jarrard and other managers testified that the so-called “mandatory” rule requires a special locking grip and the ability to hang by a single hand and no feet. E.g., (vol.IV)APP-1113. But, as EEOC pointed out, BNSF’s own “Climbing--Three-Point Contact Safety Briefing” requires only that the individual keep one hand and two feet or two hands and one foot on the ladder or other equipment at all times — what we called the “basic” standard. (vol.VI)APP-1401.[2] We also noted that BNSF does not test all applicants and employees to ensure that they can satisfy the so-called “mandatory” rule. EEOC-BR.53-54 (citing (vol.X)APP-1746 (only tests applicants who disclose grip-related weaknesses); (vol.IV)APP-1156 (assumes “normal people” can do this)). A jury could therefore find that BNSF actually requires compliance only with the “basic” rule.

Second, the company asserts that although Jarrard misunderstood the Woods report, he was primarily concerned with Duty’s perceived inability to “pinch.” BNSF-BR-51-52. A jury, however, would not have to agree that “pinching” was the main concern, particularly since pinching is unrelated to any version of the three-point contact rule.

Third, regarding climbing, BNSF states that we “exaggerated” Jarrard’s remarks about functional hook grip. BNSF-BR.53.[3] To the contrary, Jarrard testified that even if Duty could support his body weight with his right “extremity,” hooking his right wrist around a rung would still not provide enough stability. (vol.IV)APP-1125. A jury could therefore reasonably find that because Jarrard believed that all Duty could do was “grasp” at the wrist (or elbow), he did not believe Duty could comply with any version of the three-point contact standard.[4]

II. Factual Issues Regarding Duty’s Perceived Inability to Use Tools Preclude Summary Judgment.

In our opening brief, we argued that based on the evidence, a jury could find that Duty was rejected at least in part because the company believed — contrary to the evidence — that he could not use tools requiring two hands. We pointed out that BNSF’s position statement — written by HR Manager Tamela Cleaver in consultation with Jarrard — expressly lists a perceived inability to grip tools with two hands as a reason for rejecting Duty. We also challenged the district court’s explanations for refusing to consider this reason in determining whether evidence would support a finding that Duty was regarded as substantially limited in working. We further pointed out that even though EEOC’s expert did not find a census category exactly matching two-handed tool use, she found a related, albeit over-inclusive, category. And in any event, a jury could find, using common sense, that if an individual such as Duty could not use tools with both hands, he would be precluded from doing “most” or “all” skilled labor jobs in his geographic area. See Heartway, 466 F.3d at 1163-64 (quoting EEOC guidance). EEOC-BR.44-49.

BNSF’s response is confusing. It makes various arguments and stringcites testimony confirming that Jarrard (mistakenly) believed that Duty’s impairment prevented him from safely using hand tools and doing other work-related tasks with both hands or his right hand. BNSF-BR.8, 22, 39-40, 47; see also APP-274-77, 282, 297-99, 426-31 (repeated four times). This is consistent with the clause in the position statement. On the other hand, the company adamantly insists that Jarrard’s decision to reject Duty had nothing to do with his perceived inability to use tools. By the time the rejection email went out, BNSF asserts, Jarrard’s concerns about tool use had been allayed. BNSF-BR.46-47, 54-55.

It is unclear why the company is so insistent that Jarrard’s concern about Duty’s ability to use tools played no role in his rejection.[5] Perhaps it is because a jury could find that a perceived inability to grip tools with two hands would span a broad range of jobs. But see BNSF-BR.46-47 (baldly asserting that such tool use involves “a narrow task”). Or perhaps the ability to use a pneumatic wrench ((vol.I)APP-383), for example, would not normally be considered a “medical” issue, within Jarrard’s expertise; the interview panel — including experts on qualifications — thought Duty could do the job after seeing his hand and hearing how he does specific tasks. (vol.IV)APP-1209, 1218, 1221, 1229 (Patterson); (vol.V)APP-1318 (conditional job offer).

In any event, BNSF’s arguments lack merit. The company initially argues that a reason listed in the position statement, drafted several months after the initial rejection email, does not evidence Jarrard’s thinking at the time of his rejection. BNSF-BR.46, 56-57. We addressed this point in our opening brief. EEOC-BR.46-47 (noting, e.g., that Justice, 527 F.3d at 1088, rejected a similar argument, as did Heartway, 466 F.3d at 1165 n.9). The only surprising part of BNSF’s response is its apparent assumption that it was not required to answer EEOC’s questions truthfully during the investigation. BNSF-BR.46, 56.[6] This is especially remarkable since the company also accuses the Commission of dragging its heels during the investigation and litigation. See BNSF-BR.31 n.8. To the extent the company was providing false or incomplete information, it is not surprising the investigation lasted several years.

The company then asserts that our argument “depends on an exaggeration of the tool use comment” — presumably, the position statement — to claim that Jarrard thought Duty could not use tools safely. BNSF-BR.47. To the contrary, we argued that because Jarrard mistakenly believed that Duty could not grasp with his right hand, Duty was perceived as unable to use tools requiring the right hand or both hands. We also cited Jarrard’s own testimony that he was concerned about Duty’s ability to use tools and do other job related tasks. EEOC-BR.18, 46. That is not an exaggeration but simply what the evidence shows and/or reasonable inferences from that evidence.

The company further asserts, as fact, that Jarrard was concerned about tool use only until he received the follow-up medical report, after which his only concern was climbing. BNSF-BR.54-55. This assertion is unsupported by the evidence. In all of BNSF’s lengthy stringcites, Jarrard never actually says that he stopped being concerned about tool use once he received the follow-up report. Nor did Jarrard say that he disagreed with the position statement or the representation there that tool use was a reason for rejecting Duty. The assertion is also illogical. Since the report used the term “functional hook grip,” which Jarrard mistakenly assumed meant Duty could not grasp things with his right hand, the report arguably would confirm, rather than relieve, Jarrard’s concerns about tool use.

BNSF also asserts that we “repeatedly mix statements about matters other than the decisionmaking process to make the argument.” BNSF-BR.54 (citing EEOC-BR.46). In addition, without citation to our brief, the company states that we “conflate” arguments regarding coverage and qualifications. Id. at 55. These assertions are premised on the assumption that Jarrard distinguished between his concerns about tool use, which supposedly were later assuaged when he reviewed the Woods report, and his concerns about climbing, which were not. As noted above, this assumption appears unfounded. Jarrard testified about his concern regarding Duty’s ability to grasp for purposes of tool use and performing job tasks; he also testified about his concern regarding Duty’s ability to comply with the three-point contact rule. A jury could find that both concerns played a role in his decisionmaking.

Moreover, the fact that BNSF used this testimony to make arguments questioning Duty’s qualifications does not negate its relevance for showing disability. The same evidence that showed the employer in Heartway considered the charging party unqualified also supported the finding that she was regarded as substantially limited in working. See 466 F.3d at 1164-65 (listing, e.g., employer’s statement: “How would you like to eat food containing her blood, if she ever cut her finger?”).

As for BNSF’s assertion that “the only reasonable view of the sentence [that Duty was perceived as unable to firmly grip tools with two hands] is that it was linked to the specific job requirements and thus quite narrow” (BNSF-BR.57), that assertion —like other such assertions — is not a fact but an inference BNSF draws in its own favor. As noted in our opening brief, unlike the references to climbing, the position statement simply states that Duty’s impairment posed “a significant safety risk with respect to ... firmly gripping hand tools with both hands.” (vol.VI)APP-1408. And Patterson confirmed that there is nothing unique about the tools that Locomotive Electricians use. (vol.IV)APP-1221 (“standard tools”). While the district court may have found BNSF’s arguments persuasive (BNSF-BR.57-58), a jury would not have to do so.

The same is true for BNSF’s argument that even if Jarrard agreed with the position statement that Duty could not “firmly grip[] hand tools with both hands,” the district court correctly determined that any such perception would not support a finding that he was regarded as unable to do a class or broad range of jobs requiring tool use. Id. at 58-59. As our opening brief argued (EEOC-BR.47), a jury, using its common sense, could disagree, finding that Duty would be precluded from many or most skilled labor jobs if he could firmly grip tools with only his left hand.

As a fall-back, BNSF notes that EEOC’s brief does not insist on tool use as a stand-alone reason but acknowledges that it can be considered in conjunction with climbing. BNSF-BR.58. That is true. The evidence of tool use is nevertheless highly relevant to a determination of whether Duty was regarded as substantially limited in working. Despite BNSF’s unsupported assertions to the contrary, the ability to use tools with two hands is not limited to the Locomotive Electrician position. A jury could find, based on the evidence, that a skilled laborer like Duty who could not use tools with both hands would be disqualified from “all” or “most” such jobs, especially if he also could not climb in accordance with industry safety standards.

III. BNSF’s Other Arguments Do Not Warrant Summary Judgment.

A. The Expert Report Provides Useful Information About the Number of

Jobs From Which Duty Would be Disqualified If BNSF’s Perceptions About

His Abilities Were True.

BNSF also challenges EEOC’s expert report on which, the company mistakenly states, the Commission “relie[d] heavily.” BNSF-BR.59. These arguments largely rehash points we addressed in our opening brief. The rest are without merit.

Initially, we note that our opening brief does not rely “heavily” on the expert report. We argued that the report provides evidence that if, as a jury could find, Jarrard believed that Duty could not do jobs requiring climbing in accordance with industry safety standards, alone or in conjunction with jobs requiring use of hands, he would be excluded from a substantial portion — some 220,500 — of the applicable jobs in his geographic area. EEOC-BR.45. As this Court recognized in Heartway, “the requirement that the relevant jobs constitute a ‘class’ or ‘broad range’ of jobs ‘is not meant to require an onerous evidentiary showing.’... [T]he reference to the ‘number and types’ of job ‘only require[s] the presentation of evidence ... of recognized occupational classifications that indicate the approximate number of jobs (e.g., ‘few,’ ‘many,’ ‘most’) from which the individual would be excluded because of an impairment.’” 466 F.3d at 1164-65 (quoting EEOC Compl. Man. §902.4 (quoting 29 C.F.R. pt. 1630 App.)) (other citations omitted). The expert evidence here satisfies that requirement.

BNSF points out that the expert relied on BNSF’s answers to interrogatories where BNSF was asked for lists of jobs where climbing or two-handed tool use was a “requirement,” but BNSF chose to list jobs that “involve” climbing or tool use. BNSF-BR.61 & n.17. That might be problematic if, as BNSF mistakenly assumes, EEOC’s argument were based on Duty’s potential exclusion from jobs at BNSF. But that is not the case. The expert used these jobs to assist in identifying relevant categories of jobs used by the U.S. Census to report occupational data. Even if some number of such jobs “involve,” without “requiring,” climbing and/or tool use, the categories the expert chose make sense: Construction and Extraction Occupations; Installation, Maintenance, and Repair Occupations; Production Occupations; and Transportation and Material Moving Occupations. (vol.VIII)APP-1472 (Sisolak Decl.¶¶7-8). Her consideration of “safety-sensitive” positions (BNSF-BR.61) accords with BNSF’s stated concerns for safety. See, e.g., BNSF-BR.8 (jobs must be done “safely”).

BNSF then baldly asserts that the expert’s “entire analysis” depends on imputing BNSF’s job requirements to other employers. The company quotes Sutton, 527 U.S. at 493-94, but does not explain its assertion. BNSF-BR.60-61. If we understand BNSF’s position, the quotation is inapposite. In Sutton, the plaintiffs argued that if, hypothetically, other employers adopted the same 20/20 vision standard that United Airlines used — that is, if the standard were imputed to other employers who did not actually require 20/20 uncorrected vision — plaintiffs would be substantially limited in working. The Supreme Court rejected that argument, noting that the purported limitation on working was not real but only “a result of this imputation.” Id.

That is not true here. Rather than “impute” BNSF’s three-point contact standard to other employers, EEOC’s expert based her analysis on census data — a methodology Heartway approved (466 F.3d at 1164) — showing that the above-listed categories of occupations actually require climbing at least 10% of total work time, and, coupled with jobs requiring use of hands, accounted for 220,500 jobs in the Kansas City Missouri-Kansas Metropolitan Area. (vol.VIII)APP-1374-75. Moreover, Jarrard testified that many large employers actually — not hypothetically — use a three-point contact standard that is not materially different from BNSF’s. (vol.IV)APP-1113, 1147. Thus, unlike in Sutton, here a jury could find that Duty was actually, not hypothetically, regarded as substantially limited in working.

B. Insisting That the Company Comply with the Law Does Not Constitute Second-Guessing BNSF’s ADA-Permitted Employer Prerogatives.

Finally, BNSF concludes, again without citation to our brief, that EEOC is “second-guessing ADA-permitted employer prerogatives,” defying Tenth Circuit cases “calling for deference to employers on matters of essential functions” and “job requirements,” disregarding BNSF’s “nearly unique workplace safety concerns,” and distorting “the obligation of reasonable accommodation (where no accommodation was even requested).” BNSF-BR.63-64.

Aside from the reasonable accommodation comment, which we addressed in our opening brief (EEOC-BR.54-55), we assume this list is directed at our argument regarding the so-called “mandatory” three-point contact standard, an issue that BNSF opted to sidestep on appeal. If so, BNSF misunderstands our argument. By insisting that the standard meet statutory requirements, we are not challenging BNSF’s right to demand that all employees and applicants whose jobs require climbing use a special locking grip and be able to hang by a single hand (right and left) and no feet. Instead, we argue that this is a qualification standard that screens out individuals based on impairments and/or disabilities. 42 U.S.C. §12112(b)(6). As such, BNSF bears the burden of presenting evidence “so powerful that no reasonable jury would be free to disbelieve it” (Leone v. Owsley, 810 F.3d 1149, 1153-54 (10th Cir. 2015)) that, among other things, the standard is “uniformly enforced,” and “reasonable accommodation would not cure the difficulty posed by employment.” EEOC-BR-51-54 (citing Davidson v. Am. Online, 337 F.3d 1179, 1191 (10th Cir. 2003) (citation omitted), Chevron v. Echazabal, 536 U.S. 73, 79 (2002)). We pointed out that BNSF did not carry that burden. Indeed, Jarrard admitted that he simply assumes that all “normal” people — regardless of weight, age, sex, and physical fitness — can satisfy the standard; only people with impairments are tested. (vol.IV)APP-1156. We argued that, using its common sense, a jury could disagree with Jarrard’s assumption and find that the standard is “mandatory” only for people with impairments and/or disabilities. EEOC-BR.54. This Court has never held that the Commission or the courts must “defer to employers” in such circumstances. Summary judgment was therefore improperly granted.

CONCLUSION

Because a jury could find, based on the evidence, that Jarrard regarded Duty as disqualified from both the Locomotive Electrician job and the class or broad range of jobs requiring climbing in accordance with industry standards and/or using tools with two hands, the district court erred in holding that the Commission failed to raise a triable issue of fact as to disability. Summary judgment should, therefore, be reversed.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel s/ Barbara L. Sloan

BARBARA L. SLOAN

JENNIFER S. GOLDSTEIN Attorney

Associate General Counsel

EQUAL EMPLOYMENT

MARGO PAVE OPPORTUNITY COMMISSION

Assistant General Counsel Office of General Counsel

131 M Street N.E., 5th Floor

Washington, D.C. 20507

tel: (202) 663-4721

FAX: (202) 663-7090

barbara.sloan@eeoc.gov

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s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney for Equal Employment

Opportunity Commission

Dated: July 12, 2016

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s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney for Equal Employment

Opportunity Commission

Dated: July 12, 2016

[1] See also Carlile v. Conoco, 23 F.App’x 963, 967 (10th Cir. 2001) (no substantial limitation where plaintiff was regarded as unable to do welding jobs at employer); Williams v. LIRR, 618 F.App’x 716, 720 (2d Cir. 2015) (employer’s refusal to employ plaintiff with back injury as electrician or in similar job requiring heavy lifting did not show he was regarded as substantially limited in working).

[2] BNSF is mistaken about the man in the middle photograph in the Safety Briefing. BNSF-BR.18-19 n.4. The company suggests that the rungs are too large for him to use Jarrard’s special locking grip. A jury could find, however, that if the man wanted to use the special grip, his hand would easily fit around the rung. See (vol.VI)APP-1401.

[3] BNSF also accuses the Commission of “misunderstanding or misleading” by “relying” on Jarrard’s “mention” of “flaccid paralysis.” BNFS-BR.52. We actually used the term only once, in the statement of facts, in a “see also” cite, and we neither misunderstood nor misled: we quoted directly from Jarrard’s own definition of the term. EEOC-BR.15.

[4] The company also makes several trivial arguments about pages 41 and 42 of our brief. BNSF-BR.49-53. The company first overstates our position. We said that Jarrard mistakenly believed that Duty “could not use his hand, but only his wrist, to grasp things including the rungs of a ladder” (EEOC-BR.42), not that he was “essentially unable to use his right hand in any way.” BNSF-BR.49-50.

BNSF also asserts that the only cite we gave for the “basic” rule is “an OSHA Quick Card on portable ladder safety” even though BNSF “has explained” that OSHA does not regulate climbing on locomotives. BNSF-BR.49 (citing EEOC-BR.42). On page 41, however, we cited BNSF’s “Climbing–Three-Point Contact Safety Briefing” ((vol.VI)APP-1401), noting that it is comparable to the OSHA standard. And Jarrard testified that in all his years working with the three-point contact rule, he has seen nothing at OSHA, or elsewhere, defining the standard “any different than we have defined it at BNSF.” (vol.IV)APP-1113-14, 1147-48.

BNSF then reads page 41 to state that the “basic” rule requires only that a hand or foot be “in contact with” the rung or equipment. The company suggests that we “exaggerate” Jarrard’s misunderstanding of Duty’s impairment because he certainly knew that Duty could “make contact with” a rung or handrail with his right hand. BNSF-BR.52-53. BNSF can argue that to the jury. We simply used the language in BNSF’s own Safety Briefing, which requires that hands and feet be “in contact with” the ground or equipment. (vol.VI)APP-1401.

[5] This insistence seems on shaky ground given BNSF’s repeated citations to Jarrard’s testimony about his concerns regarding Duty’s ability to use tools and do other work-related tasks.

[6] BNSF cites Rakity v. Dillon Cos., 302 F.3d 1152 (10th Cir. 2002), and Fischer v. Minneapolis Public Schools, 16 F.Supp.3d 1012 (D. Minn. 2014), aff’d, 792 F.3d 985 (8th Cir. 2015), for its suggestion that the position statement is not evidence that tool use played a role in Duty’s rejection. BNSF-BR.56-57. Both cases are inapt. Unlike here, the manager in Rakity testified that his belief that plaintiff, a grocery clerk, could not do certain lifting-related tasks of another clerk position was based on plaintiff’s medically-imposed lifting restrictions, not an assumption that he could not lift at all. 302 F.3d at 1163. As for Fischer, the plaintiff there failed to meet the minimum cut-off score on a physical test (given by a third-party) required for recall. Unlike here, any opinions of company employees regarding plaintiff’s back condition, as well as the position statement, were irrelevant to why he was not recalled. See 16 F.Supp.3d at 1014-15.