EEOC v. Burlington Northern Santa Fe Railway Co., 10th Cir. Brief as Appellant Filed May 17, 2006 ORAL ARGUMENT REQUESTED No. 06-6074 ________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant-Appellee. ________________________________________________________ On Appeal from the United States District Court for the Western District of Oklahoma, No. 04-00660 The Honorable Ralph G. Thompson ________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ________________________________________________________ JAMES L. LEE DORI K. BERNSTEIN Deputy General Counsel Attorney LORRAINE C. DAVIS U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L. Street, N.W., Room 7046 Assistant General Counsel Washington, D.C. 20507 (202) 663-4734 ONE ATTACHMENT TO BRIEF IN DIGITAL AND WRITTEN FORM TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . .vii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . .3 DISTRICT COURT DECISION. . . . . . . . . . . . . . . . . . . . 13 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 14 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 15 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Evidence That BNSF Disqualified Freeman From All Jobs In And Progressing From Train Service Because It Perceived Him To Have An Impaired Left Arm That Poses Unacceptable Safety Risks Raises A Jury Question Whether BNSF Regarded Freeman As Having A Disability Within ADA Coverage. . . . . . . . . . . . . . 16 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 36 STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . 36 CERTIFICATE OF COMPLIANCE ADDENDUM EEOC v, Burlington Northern & Santa Fe Railway Co., 406 F.Supp.2d 1228 (W.D. Ok. 2005) (submitted digitally and in writing) CERTIFICATE OF SERVICE CERTIFICATE OF DIGITAL SUBMISSION TABLE OF AUTHORITIES Page CASES Doebele v. Sprint/United Management Co., 342 F.3d 1117 (10th Cir. 2003) . . . . . . . . . 17, 18, 32, 35 EEOC v. Burlington Northern & Santa Fe Railway Co., 406 F.Supp.2d 1228 (W.D. Ok. 2005) . . . . . . . . . . . . .iii Garrison v. Baker Hughes Oilfield Operations, 287 F.3d 955 (10th Cir. 2002). . . . . . . . . . . . . . . . 34 Lanman v. Johnson County, Kansas, 393 F.3d 1151 (10th Cir. 2004) . . . . . . . . . 15, 16, 17, 20 MacDonald v. Delta Air Lines, 94 F.3d 1437 (10th Cir. 1996). . . . . . . . . . . . . . . . 25 McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001). . . . . . . . . . 17, 18, 27, 35 Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999). . . . . . . . . . . . . . . . . . . 23, 24 Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001) . . . . . . . . . . . . . . . . 34 Sorensen v. Univ. of Utah Hospital, 194 F.3d 1084 (10th Cir. 1999) . . . . . . . . . . . . . 25, 28 Steele v. Thiokol Corp., 241 F.3d 1248 (10th Cir. 2001) . . . . . . . . . . . . . . . 16 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). . . . . . . . . . . . . 17, 19, 23, 24, 28 Page STATUTES 28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . .1 Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et. seq.. . . . . . . . . . . . . . . . . .1 42 U.S.C. § 12102(2) . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . . . . . 16 RULES AND REGULATIONS Fed. R.App.P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . 1, 2 Fed.R.App.P. 30(a)(2). . . . . . . . . . . . . . . . . . . . . .1 Fed.R.Civ.P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . .9 Fed.R.Civ.P. 56(c) . . . . . . . . . . . . . . . . . . . . . . 16 10th Cir. Rule 10.3. . . . . . . . . . . . . . . . . . . . . . .1 10th Cir. Rule 28(B) . . . . . . . . . . . . . . . . . . . . . .1 10th Cir. Rule 28.1(A) . . . . . . . . . . . . . . . . . . . . .1 Page 10th Cir. Rule 30(A)(1). . . . . . . . . . . . . . . . . . . . .1 29 C.F.R. § 1630.2(j)(3)(i). . . . . . . . . . . . . . . . . . 17 29 C.F.R. § 1630.2(j)(3)(ii)(B). . . . . . . . . . . . . . . . 18 29 C.F.R. § 1630.2(l)(3) . . . . . . . . . . . . . . . . . 17, 18 ADMINISTRATIVE GUIDANCE 29 C.F.R. Pt. 1630, App. § 1630.2(j) . . . . . . . . . . . 18, 19 29 C.F.R. Pt. 1630, App. § 1630.2(l) . . . . . . . . . . . 33, 35 EEOC, Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act § 6.4 (1992)34 LEGISLATIVE HISTORY H.R. Rep. No. 101-485, pt. 3 (1990), reprinted in 1990 U.S.C.C.A.N. 44533 OTHER AUTHORITY Bureau of Labor Stats., U.S. Dep't of Labor, Occupational Outlook Handbook (2002-03 ed.). . . . . . . 12, 22 Linda Cocchiarella and Gunnar B.J. Andersson, American Medical Association Guides to the Evaluation of Permanent Impairment (5th ed. AMA Press 2001). . . . .5, 30, 31 W. Hanten, W. Chen, A. Austin, R. Brooks, H. Carter, C. Law, M. Morgan, D. Sanders, C. Swan, and A. Vanderslice, Maximum Grip Strength in Normal Subjects from 20 to 64 Years of Age, Journal of Hand Therapy (July-September 1999). . . . . . . . 31 Page I.C. Josty, M.P.H. Tyler, P.C. Shewell and A.H.N. Roberts, Grip and Pinch Strength Variations in Different Types of Workers, Journal of Hand Surgery 22B: 2: (British and European Vol., 1997)31 Office of Mgmt. & Budget, Executive Office of the President, Standard Occupational Classification Manual (2000) . . . 12, 22 U.S. Census Bureau, LaborForce 2000, Census of Population (2000). . . . . . . . . . . . . 12, 22, 23 STATEMENT OF RELATED CASES There are no prior or related appeals. STATEMENT OF JURISDICTION This action was authorized and instituted pursuant to Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 et. seq. Joint Appendix (JA) at 9. The district court had jurisdiction pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. Final judgment was entered December 16, 2005. JA at 338. Plaintiff-Appellant Equal Employment Opportunity Commission (EEOC or Commission) timely filed a notice of appeal on February 13, 2006. JA at 339. See Fed.R.App.P. 4(a)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the summary judgment evidence, viewed most favorably to the EEOC, is sufficient to support a finding that Burlington Northern Santa Fe Railway Company (BNSF) regarded Thomas Freeman as having a disability within the meaning of the ADA. This issue was raised in the motion for summary judgment filed by defendant-appellee BNSF, JA at 27-41, the EEOC's response in opposition to summary judgment, JA at 139-62, and BNSF's reply in support of summary judgment, JA at 305-20. The district court addressed the issue in the order granting summary judgment. JA at 321-35. STATEMENT OF THE CASE On May 27, 2004, the EEOC filed this suit against BNSF in the U.S. District Court for the Western District of Oklahoma to enforce Title I of the ADA. JA at 9. The complaint alleges that BNSF refused to hire Thomas Freeman because of a perceived disability. Id. BNSF moved for summary judgment on the ground that, as a matter of law, it did not regard Freeman as having a disability and he therefore is not covered by the ADA. JA at 27-39. The district court granted BNSF's motion for summary judgment on December 8, 2005, JA at 335, and entered final judgment against the EEOC on December 16, 2005. JA at 338. The EEOC timely filed a notice of appeal on February 13, 2006. JA at 339; see Fed.R.App.P. 4(a)(1)(B). STATEMENT OF FACTS In 2002, after nearly 24 years working as a firefighter, Thomas Freeman decided to pursue a career in the railroad industry. See JA at 221. Freeman hoped to "attain[] a railroad job that would lead to a stable, financially secure career," and "was willing to work anywhere in the United States." Id. At "a personal expense of $5,900," Freeman enrolled in a six-week training course at the National Academy of Railroad Sciences in Overland Park, Kansas, and began to apply for job openings. Id. In September 2002, Freeman submitted his resume to BNSF. See JA at 133-35. Freeman's resume indicates that he was "currently enrolled in the conductor training program" sponsored by BNSF at Johnson County Community College in Overland Park, Kansas. JA at 134-35. Freeman successfully completed the training course and, on October 7, 2002, received his first job offer from Portland and Western Railroad. See JA at 221. Freeman accepted the job and began working as a conductor trainee. Id. In that position, Freeman "was switching rail cars, setting hand brakes, picking up cars from industries and putting them in their proper place on the train, and keeping records." Id. Shortly after he began working at Portland and Western, Freeman received a letter from BNSF, dated November 4, 2002. Id. BNSF offered to employ Freeman as a conductor trainee, beginning December 9, 2002, provided he passed a physical exam and drug screen and completed a medical questionnaire. Id. The job duties described on the BNSF job posting for conductor trainee "were identical" to those Freeman was performing at Portland and Western. Id. Because BNSF offered higher pay and better benefits "than the smaller railroad," Freeman decided to pursue the job with BNSF. Id. Freeman returned to his "home state" of Oklahoma "to fulfill the medical requirements" specified by BNSF. JA at 221. He visited a clinic for the requisite physical and drug screen, and "was given a strength test at another location by another medical provider." Id. Freeman understood that he "passed all 3 tests." Id. In mid-November, Freeman completed BNSF's medical questionnaire on-line. JA at 222. After submitting the questionnaire electronically, Freeman received a call from Beth Wayda, a nurse employed by BNSF. Id. Nurse Wayda asked him about his responses, including his disclosure that during the previous year, he had experienced some arm pain. Id. Freeman explained that he had sustained an on- the-job injury in 2001, when he cut his left arm on a glass picture frame during firefighting operations. Id. According to Freeman, he never told BNSF that he "had reduced grip strength or weakness in [his] arm," and he has "had none since completing [his] physical therapy in 2002 and subsequent release to work." Id. Freeman complied with BNSF's request for medical records. Id. BNSF subsequently informed Freeman, by telephone, that he "was being disqualified due to [his] grip strength." JA at 222. On December 2, 2002, Freeman consulted his treating physician, Dr. Robert S. Unsell, an orthopedic surgeon in Oklahoma City, who conducted a grip strength test and completed a medical report on Freeman's condition. Id.; see JA at 230-31. Dr. Unsell recorded Freeman's grip strength in each hand, measured in kilograms, as follows: "Left: 70, 65, 68; Right: 70, 70, 70." JA at 230. After summarizing Freeman's condition, Dr. Unsell stated that Freeman had "reached maximum medical improvement" and "[n]o work restrictions are indicated." Id. Dr. Unsell further determined, in accordance with "the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition," that Freeman "has sustained no measurable impairment." JA at 231. Freeman immediately forwarded Dr. Unsell's medical report to nurse Wayda, who transmitted the information via fax to Dr. Michael R. Jarrard, BNSF's Chief Medical Officer. See JA at 222; see also JA at 215. On the fax cover sheet, nurse Wayda informed Dr. Jarrard that she had "already made [Freeman] NQ" and asked, "do you wish me to change this decision?" JA at 215. On December 6, 2002, Dr. Jarrard wrote on the fax cover sheet that the "new information" submitted by Freeman "confirms abnormal grip strength ulnar nerve trouble and abnormal elbow ROM - not qualified for train service job." Id. Neither nurse Wayda nor Dr. Jarrard ever met or examined Freeman. On December 30, 2002, Freeman received "a final rejection" from BNSF. JA at 222. Freeman called the railroad's human resources department for an explanation, id., and Dr. Jarrard responded by letter, dated January 10, 2003. JA at 224. "An essential function" of being a "train service employee," Dr. Jarrard explained, "is the ability to remain stable on the side of moving train cars using only one arm for support." Id. Freeman's "medical condition," Dr. Jarrard stated, "creates a significant risk that a serious or potentially fatal accident may occur while performing train service work." Id. "Unfortunately," Dr. Jarrard concluded, Freeman was "not qualified for a train service job due to this significant risk of a serious health problem occurring." Id. Freeman provided Dr. Jarrard's opinion to his orthopedist, Dr. Unsell, who responded by letter dated January 29, 2003. JA at 225. Dr. Unsell reported that he had discharged and rated Freeman on December 2, 2002, with a discharge diagnosis of "post cubital tunnel syndrome, treated conservatively." Id. "At this time," Dr. Unsell stated, "Mr. Freeman has no restrictions." Id. Dr. Unsell expressed his opinion that Freeman "is able to pursue any type of employment that he so desires including working on railroad cars and hanging from the side of railroad cars." Id. Nor did Dr. Unsell perceive "any increased risk to [Freeman] or his fellow employees," or "any reason that he should not be able to pursue any type of gainful employment with no risk of problems in the future." Id. Dr. Unsell invited Dr. Jarrard to "feel free to contact me" in the event he had "any questions." Id. Freeman forwarded Dr. Unsell's letter to Dr. Jarrard and requested BNSF to reconsider the decision to withdraw its offer of employment. See Doc. 29 (Joint Status Report) at 3 ¶ 7 (Stipulated Facts). On March 3, Dr. Jarrard responded by letter to Freeman that BNSF "still ha[s] significant reservations about your ability to safely perform all the essential functions of train service work due to your medical condition," and "[t]herefore" considered him "not qualified for train service employment with BNSF." Id. at ¶ 8. There is no indication that Dr. Jarrard ever contacted Dr. Unsell to discuss Freeman's medical condition or Dr. Unsell's opinion that Freeman could safely perform train service work with no increased risk to himself or others. Freeman filed an EEOC charge, claiming that BNSF had discriminated against him in violation of the ADA. JA at 47. Freeman alleged that BNSF withdrew a conditional offer to employ him as a conductor after he had "taken and passed" the requisite training "course, interview, tests and . . . physical" exam, and informed him that he "was disqualified based on a medical questionnaire" due to "lack of grip strength." Id. BNSF denied the charge and asserted that Freeman "does not meet the [statutory] definition of a ‘qualified individual with a disability.'" JA at 62-63. According to BNSF, Dr. Jarrard based the decision to disqualify Freeman on "additional information" sought in connection with his "responses to the medical questionnaire," JA at 62, and his "disqualification was related to safety concerns due to his reduced grip strength." JA at 63. In a supplemental response, BNSF clarified that "‘Train Service' jobs as used by Dr. Michael Jarrard in his January 10, 2003 letter to [Freeman] include Conductor Trainee, Brakemen, Switchmen, Conductor and Engineer." JA at 235. BNSF further informed the EEOC that "[a]ll of these positions [in train service] require employees to climb onto large equipment and at times must use their arms to hang on to the equipment, as it is moving," and disclosed that "BNSF currently has over 16,000 employees who have one of the requested job titles." JA at 65-66. BNSF explained that "it simply could not take an unacceptable risk in hiring Mr. Freeman after he self-reported that he has weakness in his left arm due to a previous on-the-job injury," and rejected him because "BNSF is simply unable to take the risk that Mr. Freeman could be injured or possibly killed due to the weakness in his left arm that he self-reported to the company." JA at 65. The EEOC's investigation revealed that BNSF "rescinded [Freeman's] job offer after learning that he had slightly diminished grip strength in his left hand," and disqualified him from "‘train service employment with BNSF'" based on the railroad's "significant reservations about [his] ability to safely perform the essential functions of train service work due to [his] medical condition." JA 49- 50. The EEOC determined that BNSF "defines ‘train service work' to include a broad class of jobs, including Conductor Trainee, Brakeman, Switchman, Conductor, and Engineer," and currently "employs over 16,000 in these position[s]." JA at 50. Freeman's medical records, the EEOC observed, indicate "that he can ‘pursue any type of employment that he so desires including working on railroad cars and hanging from the side of railroad cars'" without posing "‘any increased risk to himself or his fellow employees.'" Id. Based on the evidence gathered in its investigation, the EEOC determined that BNSF "failed to hire [Freeman] because it regarded him as being disabled, that is substantially limited in the major life activity of working in a broad range of train service jobs," and did not "establish with objective evidence that [Freeman] posed a direct threat of significant risk of substantial harm to the health or safety of himself or others." Id. Consequently, the EEOC found reasonable cause to believe BNSF had violated the ADA and initiated conciliation. Id.; see JA at 52-58. When conciliation efforts were unsuccessful, JA at 59, the EEOC sued BNSF on May 27, 2004. JA at 9-15. BNSF initially moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), on the ground that the EEOC could prove no set of facts that would demonstrate Freeman is an individual with a disability, as defined by the ADA. Doc. 5 (Motion to Dismiss). The district court denied the motion, upon finding that the "complaint, on its face, states a claim upon which relief may be granted," and the additional documents furnished by the parties "would not resolve the issue" of whether Freeman is covered by the statute. JA at 19. On December 2, 2004, the court granted the parties "120 days to conduct discovery on the question whether regarding someone as unable to perform train service work is regarding the person as substantially limited in the major life activity of working," to be followed by a motion for summary judgment by BNSF and response by EEOC. Doc. 32 (Order). During discovery, BNSF designated Terry Morgan, Director of Human Resources (HR), as its corporate representative. JA at 42. In his deposition, Morgan defined "train service" positions to include "switchman [sic], brakemen, conductors, conductor trainees, hostlers," and "switch foreman." JA at 168, 171. Morgan further testified that BNSF's "labor agreement requires promotion from [train] service" into any position in "engine service," id. at 185, which he defined as "[e]ngineer, engine foreman and fireman." JA at 175; see also JA at 65 ("progression" through train service "is BNSF's exclusive source of locomotive engineers under the collective bargaining agreements"). Morgan identified "yardmaster" as another position for which train service is a prerequisite. JA at 170 ("[T]o be a yardmaster you have to come out of . . . train service."). When asked to estimate "the percentage of jobs that were in train service in 2002," Morgan replied, "20,000." JA at 173-74. In response to interrogatories, BNSF disclosed that at the time Freeman was disqualified, "[i]n December 2002, BNSF employed 37,529 persons, 16,050 in train-service work." JA at 218. Work- force data provided by BNSF during discovery indicates that in December 2002, 17,723 employees held jobs from which Freeman was disqualified (i.e., jobs Dr. Jarrard and HR Director Morgan identified as included within "train service" or requiring train service as a prerequisite). See JA at 270-73. Depending on which figure is used, the percentage of workers employed in jobs from which BNSF excluded Freeman is either 43% (16,050 of 37,529), 47% (17,723 of 37,529), or 53% (20,000 of 37,529) of the railroad's total workforce. In support of its opposition to summary judgment, the EEOC filed a "Report on ‘Train Service' Work at [BNSF]," prepared by EEOC labor economist Elvira Sisolak. JA 242-46. Sisolak consulted the Bureau of Labor Stats., U.S. Dep't of Labor, Occupational Outlook Handbook (2002-03 ed.); the Office of Mgmt. & Budget, Executive Office of the President, Standard Occupational Classification Manual (2000); and U.S. Census Bureau, LaborForce 2000, Census of Population (2000), JA at 243, and appended these materials to her report. JA at 253-69. Drawing from these sources, Sisolak reported: Data from the 2000 Census, shows that there are 120,360 people employed in two categories of railroad jobs, 1) rail-track laying and maintenance equipment operators, and 2) train operations. Of the total,108,160 are employed in train operations, consisting of Locomotive Engineers and Operators, Railroad Brake, Signal, and Switch Operators, and Railroad Conductors and Yardmasters. JA at 245. Based on her review and analysis, Sisolak concluded that BNSF's disqualification of Freeman from "train service work," as defined by the railroad's corporate representative, excluded him from "a class of jobs" in which a majority of the nation's railroad industry workers are employed. Id. DISTRICT COURT DECISION The court granted summary judgment for BNSF on December 8, 2005. JA at 321-35. The court decided "that the only . . . jobs from which Freeman is disqualified because of [BNSF's] decision are those in the category of train service and that those jobs include Conductor Trainee/Conductor, Brakeman, Switchman/ Switch Foreman and Hostler." JA at 330. Notwithstanding BNSF's admission that nearly half its workforce is employed in train service, the court rejected the notion that "the number of employees, without more, creates a class of jobs." Id. Citing the testimony of HR Director Morgan, the court found that BNSF "considers [Freeman] qualified for several other positions which do not require the physical ability to grab and hold onto a moving train on a regular basis," such as "carman, mechanical laborer, maintenance-of-way laborer, truck driver, dispatcher, assistant signalman, and clerk." JA at 329-30. BNSF's decision to disqualify Freeman from jobs that "require the employee to be able to hold on to the exterior of a moving train," the court concluded, "does not exclude Freeman from consideration for other [BNSF] jobs not requiring that skill; neither does the category of train service constitute a class of jobs as that term is defined by the ADA." JA at 334. SUMMARY OF ARGUMENT The district court erred in granting summary judgment because the evidence, viewed most favorably to the EEOC, is sufficient for a jury to find that BNSF regarded Freeman as having an impaired left arm that substantially limits his ability to work in a class of jobs. It is undisputed that BNSF disqualified Freeman from a "career progression" including all positions in and progressing from train service, JA at 65, based on its perception that a prior job-related injury to his left arm posed unacceptable safety risks. The jobs from which BNSF excluded Freeman, based on this perceived impairment, correspond to a recognized occupational classification, designated in federal workforce surveys as "rail transportation" or "railroad operation," in which the vast majority of the nation's railroad workers are employed. This evidence is sufficient to demonstrate that BNSF regarded Freeman as significantly restricted in his ability to perform a class of jobs, and therefore substantially limited in working. The circumstances surrounding BNSF's decision to reject Freeman further support a finding that the railroad regards him as having a disability within ADA coverage. The discrepancy between Dr. Jarrard's determination that Freeman's "medical condition creates a significant risk that a serious or potentially fatal accident may occur while performing train service work," JA at 224, and the contrary medical opinion of the orthopedist who had actually examined, tested, and treated Freeman, raises an inference that the reason proffered for disqualifying Freeman was a pretext for discrimination based on perceived disability. The railroad's purported reliance on safety concerns and a perceived risk of future injury, moreover, implicates precisely the kind of disability-based stereotypes that motivated Congress to extend ADA coverage to individuals who are regarded as disabled. Because the record raises a genuine factual dispute whether BNSF treated Freeman as if he has a disability within ADA coverage, the EEOC urges this Court to reverse summary judgment and remand for trial on the merits. STANDARD OF REVIEW Appellate review of "the district court's grant of summary judgment and its conclusions of law [is] de novo." Lanman v. Johnson County, Kansas, 393 F.3d 1151, 1154 (10th Cir. 2004). Summary judgment is warranted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "When applying this standard," this Court "view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the nonmoving party." Lanman, 393 F.3d at 1155 (quoting Steele v. Thiokol Corp., 241 F.3d 1248, 1252 (10th Cir. 2001)). ARGUMENT Evidence That BNSF Disqualified Freeman From All Jobs In And Progressing From Train Service Because It Perceived Him To Have An Impaired Left Arm That Poses Unacceptable Safety Risks Raises A Jury Question Whether BNSF Regarded Freeman As Having A Disability Within ADA Coverage. Title I of the ADA broadly prohibits employment discrimination "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). "The term ‘disability' means, with respect to an individual - (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). To demonstrate coverage under the third statutory definition of disability, it is necessary that a covered entity entertain misperceptions about the individual – it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. These misperceptions often ‘resul[t] from stereotypic assumptions not truly indicative of . . . individual ability.' Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). This Court relies on EEOC regulations and interpretive guidance to evaluate whether a claimant's evidence is sufficient to demonstrate that he or she meets the statutory definition of "disability." See, e.g., Lanman, 393 F.3d at 1156-57; Doebele v. Sprint/United Management Co., 342 F.3d 1117, 1129-34 (10th Cir. 2003); McKenzie v. Dovala, 242 F.3d 967, 970-73 (10th Cir. 2001). In accordance with the Commission's "implementing regulations," this Court recognizes working as a major life activity, and that "‘[w]ith respect to the major life activity of working . . . [t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.'" McKenzie, 242 F.3d at 970 (quoting 29 C.F.R. § 1630.2(j)(3)(i)); see also Doebele, 342 F.3d at 1133 ("When the major life activity is that of working, a plaintiff must show that she is unable to perform either a class of jobs or a broad range of jobs in various classes."). A claimant may thus demonstrate coverage under the "regarded as" definition of disability by showing "that she was ‘treated' by the [employer] as significantly restricted in her ability to perform [a] class of jobs." See McKenzie, 242 F.3d at 970 (quoting 29 C.F.R. § 1630.2(l)(3)); see also Doebele, 342 F.3d at 1133 (an individual has a "disability" within ADA coverage if her employer "regarded her as substantially limited from a broad class of jobs" due to an actual or perceived impairment). According to EEOC regulations, a "class of jobs" is "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." 29 C.F.R. § 1630.2(j)(3)(ii)(B). EEOC interpretative guidance, issued concurrently with the regulations, explains that the term "number and types of jobs" . . . [is] not intended to require an onerous evidentiary showing. Rather, the [term] only require[s] the presentation of evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g. "few," "many," "most") from which an individual would be excluded because of an impairment. 29 C.F.R. Pt. 1630, App. § 1630.2(j). Freeman has a "disability" within the meaning of the ADA because BNSF treated him as if he has an impaired left arm that precludes him from working in train service, and thus regarded him as "significantly restricted in [his] ability to perform [a] class of jobs." See McKenzie, 242 F.3d at 970 (quoting 29 C.F.R. § 1630.2(l)(3)). BNSF rejected Freeman based on Dr. Jarrard's opinion that his "medical condition creates a significant risk that a serious or potentially fatal accident may occur while performing train service work." JA at 214. Dr. Jarrard understood "train service work" to "include Conductor Trainee, Brakemen, Switchmen, Conductor and Engineer," JA at 235, and HR Director Morgan testified that disqualification from train service also precludes Freeman from working as a switch foreman, hostler, engine foreman, fireman, and yardmaster. See JA at 168, 170, 171, 175, 185. This undisputed evidence conclusively demonstrates that BNSF regarded Freeman as "precluded from more than one type of job, a specialized job, or a particular job of choice." Sutton, 527 U.S. at 491- 92. The positions from which BNSF disqualified Freeman correspond to a class of jobs, identified in federal occupational surveys and census data as "rail transportation occupations" or "railroad operation," in which the vast majority of the nation's railroad industry workers are employed. See JA at 253-69. The EEOC's "presentation of evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g. ‘few,' ‘many,' ‘most') from which an individual would be excluded because of an impairment," 29 C.F.R. Pt. 1630, App. § 1630.2(j), is more than sufficient to raise a genuine issue of fact whether BNSF regarded Freeman as substantially limited in working. In deciding as a matter of law that BNSF did not regard Freeman as unable to work in a "class of jobs," the district court failed to view the evidence and draw all reasonable inferences in the light most favorable to the EEOC, as required on summary judgment. See Lanman, 393 F.3d at 1155. The court determined, for example, "that the only . . . jobs from which Freeman is disqualified because of [BNSF's] decision are those in the category of train service and that those jobs include Conductor Trainee/Conductor, Brakeman, Switchman/Switch Foreman and Hostler." JA at 330. The court acknowledged that BNSF "included [the position of railroad or locomotive engineer] in the train service category," JA at 325 n.2, but neglected to include engineer, or any other jobs for which train service is a prerequisite, among the positions from which Freeman was precluded by virtue of BNSF's medical disqualification. The court thus defined the jobs from which BNSF disqualified Freeman more narrowly than did Dr. Jarrard, who under- stood "train service work" to "include Conductor Trainee, Brakemen, Switchmen, Conductor, and Engineer," see JA at 235, and ignored the testimony of HR Director Morgan that Freeman's exclusion from train service also disqualified him from working as an engine foreman, fireman, or yardmaster. JA at 170, 175, 185. The district court's incomplete list of the jobs from which BNSF excluded Freeman hardly reflects a view of the record most favorable to the EEOC. During the EEOC investigation of Freeman's charge, BNSF described the career progression for train service positions as set forth in the Collective Bargaining Agreements to which BNSF is subject. Employees who wish to work in train service are hired as Conductor Trainees or Brakemen/Switchmen. Once they complete their training, they work as Brakemen/Switchmen or as Conductors according to which positions their seniority would allow them to hold. Over time, employees can become eligible to train to become a locomotive engineer. Th[is] progression . . . is BNSF's exclusive source of locomotive engineers under the collective bargaining agreements. All of these positions require employees to climb onto large equipment and at times must use their arms to hang on to the equipment, as it is moving. JA at 65. HR Director Morgan confirmed that BNSF's "labor agreement requires promotion from [train] service" into any position in "engine service," JA at 185, which he defined as "[e]ngineer, engine foreman and fireman," JA at 175, and he identified "yardmaster" as another position for which train service is a prerequisite. JA at 170. The evidence thus demonstrates that BNSF's decision to disqualify Freeman from train service work precluded him from holding any of the following positions: conductor trainee, conductor, brakeman, switchman, switch foreman, hostler, engineer, engine foreman, fireman, and yardmaster. Workforce data provided by BNSF show that in 2002, when Freeman applied, the railroad employed 17,723 workers – 47% of its total workforce – in the jobs from which he was disqualified. See JA 270-73; see also supra note 2. The positions from which BNSF excluded Freeman, moreover, correspond closely to an occupational classification recognized in federal surveys of the national labor force. The Bureau of Labor Stats., U.S. Dep't of Labor, Occupational Outlook Handbook (2002-03 ed.), identifies the following positions within the occupational category of "Rail Transportation Occupations": locomotive engineers; assistant engineers; rail yard engineers, dinkey operators, and hostlers; railroad conductors; yardmasters; railroad brake, signal, and switch operators; subway operators; and streetcar operators. JA at 266-67; see also JA 255-56 (Office of Mgmt. & Budget, Executive Office of the President, Standard Occupational Classification Manual (2000), listing occupations within classification of "Rail Transportation Workers" as follows: locomotive engineers, locomotive firers, railyard engineers, dinkey operators, and hostlers; railroad brake, signal, and switch operators; railroad conductors and yardmasters). To the extent these job titles are represented in BNSF's workforce data, see JA at 270-73, Freeman was disqualified from nearly every one of them, with the sole exception of signal operator. Labor force data from the 2000 census identify two categories of railroad industry workers – operation and construction – in which a total of 120,360 workers are employed nationwide. See JA 257-59 (U.S. Census Bureau, LaborForce 2000, Census of Population (2000)). Roughly 10% of these workers – 12,200 – are employed in "railroad construction," as rail-track laying and maintenance equipment operators. JA at 258. The remaining 90% – 108,160 – are employed in "railroad operation," in the following occupations, with number of employees in parentheses: locomotive engineers and operators (49,760); railroad brake, signal, and switch operators (10,070); railroad conductors and yardmasters (48,330). JA at 258-59. All of the jobs from which BNSF disqualified Freeman fall within the "railroad operation" category, in which 90% of workers in the railroad industry are employed. BNSF's perception that Freeman's arm injury precludes him from holding any position within an identified "career progression," JA at 65, distinguishes this case from Sutton and Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999). The plaintiffs in Sutton claimed that United Air Lines' refusal to hire them as global airline pilots, because they failed the airline's vision standard, demonstrated that United regarded them as substantially limited in the major life activity of working. See Sutton, 527at 475-77. "Because the position of ‘global airline pilot' is a single job," the Supreme Court held, the plaintiffs' allegation that the airline "regards their poor vision as precluding them from holding positions as a ‘global airline pilot' . . . does not support the claim that [it] regards [them] as having a substantially limiting impairment." Id. at 493. Similarly, in Murphy the Supreme Court held that evidence United Parcel Service (UPS) fired the plaintiff because his hypertension exceeded U.S. Department of Transportation (DOT) standards for certification to drive commercial motor vehicles – an undisputed essential requirement of his job as a UPS mechanic – did not demonstrate UPS regarded him as "unable to perform a class of jobs utilizing his skills." See Murphy, 527 U.S. at 523-25. "At most," the Court decided, the plaintiff "has shown that he is regarded as unable to perform the job of mechanic only when that job requires driving a commercial motor vehicle – a specific type of vehicle used on a highway in interstate commerce." Id. at 524. The plaintiff, the Court observed, had "put forward no evidence that he is regarded as unable to perform any mechanic job that does not call for driving a commercial motor vehicle and thus does not require DOT certification." Id. To the contrary, the Court found it "undisputed that [he] is generally employable as a mechanic," and cited "uncontroverted evidence that [he] could perform jobs such as diesel mechanic, automotive mechanic, gas-engine repairer, and gas-welding equipment mechanic, all of which utilize [his] mechanical skills." Id. at 524-25. The railroad's admitted exclusion of Freeman from a group of jobs defined as a "career progression," JA at 65, likewise differentiates this case from rulings of this Court that an employer's decision to disqualify an individual from holding a single position was insufficient, as a matter of law, to show he or she was regarded as substantially limited in working. See, e.g., Sorensen v. Univ. of Utah Hospital, 194 F.3d 1084, 1189 (10th Cir. 1999) (hospital that disqualified plaintiff with multiple sclerosis from working as a flight nurse and reassigned her to work as a nurse in burn unit, surgical care unit, and emergency room, did not regard her as substantially limited in working because "flight nurse is a single job" and hospital "provided Plaintiff with numerous other opportunities to work as a nurse"); MacDonald v. Delta Air Lines, 94 F.3d 1437, 1445 (10th Cir. 1996) (plaintiff who failed eye exam required for certification to taxi aircraft did not show airline "regarded his vision problems as substantially limiting his ability to be an airplane mechanic" because "taxiing aircraft" is not "a class of jobs" and "plaintiff performed the job of airplane mechanic for approximately eight years without taxiing aircraft"). In contrast to these single-job or narrow-class cases, the evidence here would support a finding that BNSF regarded Freeman as unable to work in nearly every BNSF job within the recognized occupational category of "railroad operation." See JA at 258-59. In preparation for what he hoped would be "a stable, financially secure career," Freeman had successfully completed a six-week course, sponsored by BNSF, designed to train individuals to be conductors. See JA at 221; JA at 133-35. BNSF acknowledged that the position Freeman sought was the first step in a "career progression for train service positions," from conductor trainee or brakeman/switchman, to conductor, to locomotive engineer. JA at 65. BNSF excluded Freeman from these positions, as well as others (switch foreman, hostler, engine foreman, fireman, and yardmaster) that HR Director Morgan identified as within, or progressing from, train service work. In effect, BNSF regarded Freeman as unable to hold virtually any job operating trains. Morgan's declaration that, "[b]ased on [his] review of information concerning Mr. Freeman's training, knowledge, skills, and abilities, he would be a suitable candidate for a number of positions at BNSF," JA at 45, does not negate the undisputed evidence that the railroad disqualified Freeman from nearly every position in railroad operations, and excluded him from a career progression for which he had obtained specialized training. First, the probative value of Morgan's assertion is questionable. BNSF's conditional offer to Freeman establishes that, based on his "training, knowledge, skills, and abilities," the railroad considered him a "suitable candidate" for the job of conductor trainee, yet BNSF withdrew that offer because Dr. Jarrard found his "medical condition" disqualified him from all "train service work." JA at 224. Morgan's declaration that Freeman's paper credentials meet the criteria of other positions at BNSF does not demonstrate that the railroad would not have disqualified him from these jobs on medical grounds, just as it excluded him from all positions in train and engine service. Furthermore, the jobs Morgan listed – "carman, mechanical laborer, maintenance-of-way laborer and truck driver, dispatcher, assistant signalman, clerk," JA at 45 – fall outside BNSF's "career progression" through train service from conductor-trainee to engineer, JA at 65, and do not offer "the career advancement opportunities or the earning potential that train service does." JA at 208; see also JA at 267-68 (summarizing training, advancement, job outlook, and earnings data for "rail transportation occupations"). See McKenzie, 242 F.3d at 971 (rejecting employer's argument that plaintiff's "work in several occupations, including caretaker, store clerk, and resident counselor" precluded her claim that defendant regarded her as substantially limited in working, because "none of the positions in which [plaintiff] was employed during the cited period is part of the ‘class' of law enforcement jobs, her prior and preferred field"). The district court therefore erred in relying on Morgan's testimony that Freeman would be "a suitable candidate" for several jobs outside train/engine service, JA at 45 – the "career progression" from which he was disqualified, JA at 65 – to conclude, as a matter of law, that BNSF did not regard Freeman to be substantially limited in working. See JA at 329-30. An employer's perception that an individual has a mental or physical impairment that precludes him from a class of jobs triggers the protections of the ADA, which require the employer to demonstrate that the standards used to disqualify him are job related and consistent with business necessity, or that he poses a direct threat to health or safety. See 42 U.S.C. §§ 12112(b)(6), 12113(a) & (b). The critical purpose served by these protections would be frustrated if an employer could exclude an individual from a class of jobs based on a perceived impairment, yet defeat statutory coverage – and thereby evade the burden to justify the disqualifying criteria – simply by identifying other positions, outside that class of jobs, for which it considers him qualified. By analogy, had United Air Lines decided that the Sutton plaintiffs' vision impairments disqualified them from holding any job in aircraft operation, presumably the Supreme Court would have found that to be sufficient evidence that the airline regarded them as precluded from the class of piloting jobs, regardless of whether United considered them qualified to work as flight attendants or ticket agents. The Court indicated as much by citing the availability of other positions within the class of piloting jobs to support the conclusion that the plaintiffs were not precluded from a class of jobs. See Sutton, 527 U.S. at 493 (noting availability of "a number of other positions utilizing [plaintiffs'] skills, such as regional pilot and pilot instructor"). Similarly, had the defendant hospital in Sorenson disqualified the plaintiff from all nursing positions, the plaintiff could have shown she was regarded as substantially limited in working in the class of nursing jobs, and the hospital would not defeat ADA coverage by stating that she could work as a file clerk or orderly. See Sorenson, 194 F.3d at 1189 (hospital regarded plaintiff's "MS as precluding her from holding the position of flight nurse" but "provided [her] with numerous other opportunities to work as a nurse . . . in the burn unit, the surgical intensive care unit, and the emergency room following her MS diagnosis and hospitalization"). The circumstances surrounding Dr. Jarrard's decision to disqualify Freeman further support finding that BNSF regarded him as disabled. After Freeman took and passed all physical examinations and tests required by BNSF as a precondition to employment, Dr. Jarrard disqualified him from train service work based on "additional information" sought in connection with his "responses to the medical questionnaire." JA at 62. At least part of the "additional information" Freeman provided, at BNSF's request, was the medical report of December 2, 2002, prepared by Dr. Unsell. See JA at 215, 230-31. According to BNSF, Freeman's "disqualification was related to safety concerns due to his reduced grip strength." JA at 63. Yet Dr. Unsell's December 2, 2002 medical report, JA at 230-31, and his subsequent letter of January 29, 2003, JA at 225, indicate such concerns were unfounded. Dr. Unsell measured Freeman's grip strength in kilograms as "70, 65, 68" in his left hand and "70, 70, 70" in his right hand, JA at 230, and determined, in accordance with "the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition," that Freeman "has sustained no measurable impairment." JA at 231. The referenced medical text confirms that Freeman's grip strength in each hand, as measured by Dr. Unsell, is well above the average recorded for males in every age group and occupational classification. See Linda Cocchiarella and Gunnar B.J. Andersson, American Medical Association Guides to the Evaluation of Permanent Impairment 508-09, Tables 16-31 & 16-32 (5th ed. AMA Press 2001). The average grip strength measured in kilograms for males, grouped by age, ranges from 45.2 to 49.2 in the "major [dominant] hand," and from 42.6 to 47.3 in the "minor hand." Id. at 509, Table 16-32. The average grip strength recorded for the major/dominant (usually right) hand is invariably greater than that recorded for the minor (usually left) hand. Id. Grouped by occupational classification, the average grip strength, measured in kilograms, for males in skilled occupations is 47.0 in the major hand and 45.4 in the minor hand; for males in sedentary occupations, the average grip strength is 47.2 in the major hand and 44.1 in the minor hand; and for men in manual occupations, the average grip strength is 48.5 in the major hand and 44.6 in the minor hand. Id., Table 16-31. After Dr. Jarrard explained that he disqualified Freeman from "train service work," which requires "the ability to remain stable on the side of moving train cars using only one arm for support," because his "medical condition creates a significant risk that a serious or potentially fatal accident may occur," JA at 224, Dr. Unsell provided BNSF with his medical opinion addressing this specific concern. Having examined and discharged Freeman on December 2, 2002, Dr. Unsell concluded that Freeman "is able to pursue any type of employment that he so desires including working on railroad cars and hanging from the side of railroad cars," without posing "any increased risk to himself or his fellow employees." JA at 225. Although Dr. Unsell invited Dr. Jarrard to "feel free to contact me" in the event he had "any questions," id., Dr. Jarrard never contacted Dr. Unsell and refused to reconsider his decision to disqualify Freeman. See Doc. 29 at 3 ¶ 8. The undisputed evidence thus shows that BNSF based its decision to reject Freeman on the recommendation of Dr. Jarrard, a company physician who had never examined Freeman and ignored an invitation to consult his treating physician. Dr. Jarrard's perception that Freeman's left arm was so impaired that he lacked adequate strength to hang safely onto a moving train is contradicted by the grip strength measurements recorded on December 2, 2002, and the medical report and opinion of Dr. Unsell, the orthopedist who treated, examined, and tested Freeman. The discrepancy between Dr. Jarrard's perception and Freeman's medical records suggests that the railroad's proffered explanation for its decision is a pretext for unlawful discrimination based on perceived disability. See Doebele v. Sprint/United Management Co., 342 F.3d 1117, 1134 (10th Cir. 2003) (supervisors' "disregard of the assessment and recommendations of [plaintiff's] treating physician support the inference that their actions were improperly based on myth, fear, and stereotype, rather than an individualized evaluation of [plaintiff's] abilities"). The legislative history of the ADA indicates that, in defining "disability" to include individuals "regarded as" disabled, Congress intended to address precisely this situation: [I]f a person is disqualified on the basis of an actual or perceived physical or mental condition, and the employer can articulate no legitimate job-related reason for the rejection, a perceived concern about employing persons with disabilities could be inferred and the plaintiff would qualify for coverage under the ‘regarded as' test. . . . The reasons for the rejection are often the fear of injury, as well as increased insurance or worker's compensation costs. These reasons for rejection rely on common barriers to employment for persons with disabilities and therefore, the person is perceived to be disabled under the third test. H.R. Rep. No. 101-485, pt. 3, at 30-31 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 453; see also 29 C.F.R. Pt. 1630 App. § 1630.2(l) ("[I]if an individual can show that an employer . . . made an employment decision because of a perception of disability based on ‘myth, fear or stereotype,' the individual will satisfy the ‘regarded as' part of the definition of disability. If the employer cannot articulate a non-discriminatory reason for the employment action, an inference that the employer is acting on the basis of ‘myth, fear or stereotype' can be drawn."). Thus, "evidence that [BNSF] created a pretextual reason for [disqualifying Freeman] may tend to prove that it regarded [Freeman] as a disabled [applicant]." See Ross v. Campbell Soup Co., 237 F.3d 701, 708 (6th Cir. 2001). To prevent employers from basing decisions on such common disability-related stereotypes, Congress provided that "‘[t]he results of a medical inquiry or examination may not be used to disqualify persons who are currently able to perform the essential functions of a job, either with or without an accommodation, because of fear or speculation that a disability may indicate a greater risk of future injury, or absenteeism, or may cause future workers' compensation or insurance costs.'" Garrison v. Baker Hughes Oilfield Operations, 287 F.3d 955, 960 (10th Cir. 2002) (quoting EEOC, Technical Assistance Manual on the Employment Provisions (Title I) of the [ADA] § 6.4 (1992)) (emphasis added). In rejecting Freeman, BNSF explicitly relied on safety concerns and the risk of future injury. See JA at 63 ("Mr. Freeman's disqualification was related to safety concerns due to his reduced grip strength"); JA at 65 ("BNSF is simply unable to take the risk that Mr. Freeman could be injured or possibly killed due to the weakness in his left arm that he self-reported to the company."); JA at 224 ("Your medical condition creates a significant risk that a serious or potentially fatal accident may occur while performing train service work."). The railroad's perception that Freeman posed "an unacceptable risk . . . due to a previous on-the- job injury," JA at 65, implicates precisely the kind of disability-based stereotypes that motivated Congress to extend ADA protection to individuals who have no substantially limiting impairment, but are so regarded by an employer. This Court has endorsed the EEOC's position that "[a]n individual rejected from a job because of the ‘myths, fears and stereotypes' associated with disabilities would be covered under this part [i.e., the "regarded as disabled" prong] of the definition of disability, whether or not the employer's . . . perception were shared by others in the field and whether or not the individual's actual physical or mental condition would be considered a disability under the first or second part of this definition. As the legislative history notes, sociologists have identified common attitudinal barriers that frequently result in employers excluding individuals with disabilities. These include concerns regarding productivity, safety, insurance, liability, attendance, cost of accommodation and accessibility, workers' compensation costs, and acceptance by coworkers and customers." Doebele, 342 F.3d at 1133 (quoting 29 C.F.R. pt. 1630, App. § 1630.2(l)); see also McKenzie, 242 F.3d at 971 ("According to the EEOC's interpretive guidelines, if an individual can show that a potential employer refused to hire her based on ‘myth, fear, or stereotype,' including concerns regarding safety, insurance, liability, and acceptance by coworkers and the public, the individual will satisfy the ‘regarded as' component of the definition of disability."). Given BNSF's admissions that the decision to disqualify Freeman from every job in and progressing from train service was animated by precisely such concerns, the district court erred in concluding, as a matter of law, that BNSF did not regard him as having a disability within ADA protection. CONCLUSION For the foregoing reasons, the EEOC urges this Court to reverse the summary judgment for BNSF and remand this case for trial on the merits. STATEMENT REGARDING ORAL ARGUMENT Oral argument will materially assist this Court in resolving the complex legal and factual issues presented in this appeal from summary judgment against the Commission's claim that BNSF discriminated against Freeman because of a perceived disability, in violation of the ADA. Respectfully submitted, s/ Dori K. Bernstein JAMES L. LEE DORI K. BERNSTEIN Deputy General Counsel Attorney LORRAINE C. DAVIS U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L. Street, N.W., Room 7046 Assistant General Counsel Washington, D.C. 20507 (202)663-4734 CERTIFICATE OF COMPLIANCE As required by Fed.R.App.P. 32(a)(7)(C), I certify that this brief is proportionally spaced and contains 8,442 words. See Fed.R.App.P. 32(a)(7)(B)(i). I relied on my work processor to obtain the count and it is WordPerfect 9. The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed.R.App.P. 32(a)(5). I certify that the information in this certificate of compliance is true and correct to the best of my knowledge and belief formed after a reasonable inquiry. s/Dori K. Bernstein Dori K. Bernstein May 17, 2006 CERTIFICATE OF SERVICE I, Dori K. Bernstein, hereby certify that on the 17th day of May, 2006, I caused two copies of the attached Brief of the Equal Employment Opportunity Commission as Appellant to be sent via first class U.S. mail to: ROBERTA BROWNING FIELDS RAINEY, ROSS, RICE & BINNS 120 N. Robinson Ave., Suite 735W Oklahoma City, Oklahoma 73102 BRYAN P. NEAL LAWRENCE M. STROIK STEPHEN F. FINK BURLINGTON NORTHERN THOMPSON & KNIGHT RAILROAD COMPANY 1700 Pacific Avenue, Suite 3300 Law Department Dallas, Texas 75201 2300 Lou Menk Dr., AOB-3 Fort Worth, Texas 76131 s/Dori K. Bernstein DORI K. BERNSTEIN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. Street, N.W., Room 7046 Washington, D.C. 20507 (202)663-4734 dori.bernstein@eeoc.gov May 17, 2006 Certificate of Digital Submission I, Dori K. Bernstein, hereby certify that: 1. All required privacy redactions have been made (NONE). 2. On May 17, 2006, I will send an e-mail containing the attached brief in digital form to the Tenth Circuit clerk's office at esubmissions@ca10.uscourts.gov, and to counsel for the defendant. The document submitted in digital form will be an exact copy of the written document filed with the Court, but for the signature which appears in accordance with the Amended Emergency Order governing digital filings in the 10th Circuit Court of Appeals (Amended Emergency Order). Additionally, in accordance with the Amended Emergency Order, all of the documents in the Joint Appendix (not available in digital format) are being submitted in writing only. 3. The digital submissions have been scanned for viruses by the EEOC's virus scanning software and, according to this program, are free of viruses. The EEOC utilizes Symantec AntiVirus Corporate Edition. The software was most recently updated in May 2005. s/Dori K. Bernstein DORI K. BERNSTEIN Attorney Connecticut State Bar No. 302667 District of Columbia Bar No. 415827 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. Street, N.W., Room 7046 Washington, D.C. 20507 (202)663-4734 dori.bernstein@eeoc.gov May 17, 2006 ADDENDUM Briefs and Other Related Documents United States District Court,W.D. Oklahoma. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, Defendant. No. CIV-04-660-T. Dec. 8, 2005. Background: Equal Employment Opportunity Commission (EEOC) sued railroad, claiming that rejection of applicant for railroad conductor position was violation of Americans with Disabilities Act (ADA). Railroad moved for summary judgment. 3Holding: The District Court, Ralph G. Thompson, J., held that applicant did not qualify as disabled, by being considered as such by railroad. Judgment for railroad. West Headnotes [1] Civil Rights 78 1019(5) 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1016 Handicap, Disability, or Illness 78k1019 Who Is Disabled; What Is Disability 78k1019(5) k. Perceived Disability; "Regarded As" Claims. Most Cited Cases A person is "regarded as disabled," for Americans with Disabilities Act (ADA) purposes, when a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2); 29 C.F.R. § 1630.2(1). [2] Civil Rights 78 1218(6) 78 Civil Rights 78II Employment Practices 78k1215 Discrimination by Reason of Handicap, Disability, or Illness 78k1218 Who Is Disabled; What Is Disability 78k1218(6) k. Perceived Disability; "Regarded As" Claims. Most Cited Cases To be substantially limited in the major life activity of working, and consequently qualified for relief under the Americans with Disabilities Act (ADA) as employee considered by employer to be disabled, an employee must be unable to perform either a class of jobs or a broad range of jobs in various classes. Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2); 29 C.F.R. Part 1630, App. § 1630.2(j)(3)(I). [3] Civil Rights 78 1218(6) 78 Civil Rights 78II Employment Practices 78k1215 Discrimination by Reason of Handicap, Disability, or Illness 78k1218 Who Is Disabled; What Is Disability 78k1218(6) k. Perceived Disability; "Regarded As" Claims. Most Cited Cases Railroad job applicant was not disqualified from working at a class of jobs, so as to be unable to perform major life activity of working, as required to qualify as "disabled," under Americans with Disabilities Act (ADA) by virtue of railroad's considering him disabled, when he was rejected for employment as conductor trainee, due to weakness of left arm and hand impairing his ability to climb unto moving train; other train service positions, claimed to be in same class as conductor job, were available to him, as these only involved climbing unto stationary trains, which he could do. Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2). *1229 Holly Waldron Cole, EEOC-OKC, Oklahoma City, OK, Toby W. Costas, EEOC-DALLAS, Dallas, TX, for Plaintiff. Stephen F. Fink, Bryan P. Neal, Thompson & Knight, Dallas, TX, Lawrence M. Stroik, Fort Worth, TX, Roberta Fields, Patricia L. Franz, Rainey, Ross, Rice & Binns, Oklahoma City, OK, for Defendant. ORDER RALPH G. THOMPSON, District Judge. Before the court is the motion [Doc. No. 36] of defendant Burlington Northern and Santa Fe Railway Company ("Burlington") for summary judgment on the claim asserted by the Equal Employment Opportunity Commission ("EEOC"). Pursuant to Fed.R.Civ.P. 56(c), Burlington argues that the undisputed material facts in the record establish that it is entitled to judgment as a matter of law on the EEOC's claims. The EEOC brings this action on behalf of Thomas Freeman ("Freeman"), alleging that Burlington violated the Americans with Disabilities Act of 1990 ("ADA") by declining to employ Freeman as a Conductor Trainee because it "regarded him as disabled." Burlington initially moved to dismiss the action, arguing that the EEOC could not satisfy the ADA requirements of a claim for relief based on a "regarded as" theory. That motion was denied because its adjudication required consideration of material outside the pleadings, thus rendering it inappropriate for consideration in a motion to dismiss. The parties proceeded to conduct discovery on this issue. *1230 In its motion for summary judgment, Burlington argues that the EEOC cannot prevail on the claim because it cannot show that Burlington regarded Freeman as disqualified from performing a class of jobs or a broad range of jobs in various classes. Because the EEOC must prove that contention in order to establish that Burlington discriminated by regarding Freeman as disabled, Burlington argues that the EEOC cannot prove disability discrimination as a matter of law. The parties have fully briefed this issue and have submitted an extensive record. Summary judgment may be granted where the undisputed material facts establish that one party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A material fact is one which may affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To avoid summary judgment, plaintiffs must present more than a "mere scintilla" of evidence; the evidence must be such that "a reasonable jury could return a verdict for the non-moving party." Id. The facts in the record and reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party. MacKenzie v. City & County of Denver, 414 F.3d 1266, 1273 (10th Cir.2005). Where the undisputed facts establish that a plaintiff cannot prove an essential element of a cause of action, defendant is entitled to judgment on that cause of action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In this case, it is undisputed that Freeman applied for the Conductor Trainee position with Burlington, and he did not apply for other jobs. The parties also agree that, as the job title implies, the position is that of a railroad conductor in training; thus, the qualifications for a Conductor Trainee and a Conductor are essentially the same. It is also undisputed that a conditional offer of employment was made to Freeman, pending a physical examination, drug test, and background check. Further, the parties agree that Burlington's Chief Medical Officer, Dr. Michael Jarrard ("Dr.Jarrard"), concluded that Freeman was not qualified for the position. It is not disputed that Burlington's job posting for the position of Conductor Trainee includes a description of the duties to be performed in that position; among the duties specified are the following: Gets on and off equipment while train is performing industrial station or yard switching, to set or release hand brakes or other duties. Rides moving car by hanging on grab irons or ladder, sometimes for extended periods of time. Burlington Job Posting, Burlington Exhibit 3. Burlington's job profile for the position of Conductor Trainee also states, in the description of job duties, that the employee "Rides moving car by hanging on grab irons or ladder, sometimes for extended periods of time." Job Profile, Burlington Exhibit 4, page 2. The parties agree that, as required by Burlington, Freeman completed certain tests and courses required for his application for a Conductor Trainee position; he also had a physical examination. During this period, Freeman told Burlington that he had previously suffered an injury to his left arm. Upon Burlington's request, he submitted medical records, and the records reflected that, although he had been released to work, he had weakness in his left arm and diminished grip strength in his left hand. Burlington's Chief Medical Officer, Dr. Jarrard, determined that these conditions disqualified Freeman for "train service" jobs with Burlington because an *1231 essential function of those jobs is the ability to hold on to the exterior of a moving train; Dr. Jarrard notified Freeman that his condition created a "significant risk that a serious or potentially fatal accident may occur while performing train service work." January 10, 2003 Letter from Dr. Jarrard to Freeman, submitted as EEOC Exhibit 4. Conductors and Conductor Trainees fall into a Burlington job category known as "train service" employees. According to Burlington, the jobs categorized as train service positions are Conductor Trainee, Conductor, Brakeman, Switchman/Switch Foreman, and Hostler . Deposition of Burlington Human Resources Director Terrill L. Morgan, Burlington Exhibit 2, page 65, lines 22-24. (Hereinafter "Morgan dep."). These are the only positions that include the job requirement of holding on to the grab bar or ladder on the exterior of a moving train. Id., page 90, lines 14-16. Many other jobs involve climbing on to the exterior of the train and/or holding on to the exterior grab bars or ladder; however, those jobs do not require the employee to do so while the train is moving. Morgan dep., page 90, lines 14-25; page 91, lines 1-3. Climbing on to a stationary train is an activity performed by almost all Burlington employees, regardless of their specific jobs; employees in many positions may also hold on to grab bars or ladders on the train exterior while performing their duties. Morgan Declaration, ¶ 5, Burlington Exhibit 1. Employees in positions other than train service may sometimes hold on to the exterior of a moving train; however, they are not required to do so as a part of their duties. Id. FN1. Although Burlington's Human Resources Director included the job of hostler in the train service category during his deposition, Burlington's response to the EEOC complaint and other documents in the record do not include that position in the train service category. Weighing the facts in favor of the EEOC, the court will consider the job of hostler to be a train service job for purposes of this motion. In addition, the court has identified the position of switchman as "switchman/switch foreman" because the testimony references both positions. When he was not selected for the Conductor Trainee position, Freeman filed an EEOC complaint alleging both age and disability discrimination as the motivations for Burlington's failure to hire him. The record contains no evidence that the EEOC made a finding regarding his age discrimination claim. However, the EEOC issued a Determination that Burlington's failure to hire Freeman constituted disability discrimination because Burlington regarded Freeman as disabled. In its Determination, the EEOC acknowledged that Burlington told Freeman that he was "not qualified for train service employment" with Burlington because of his medical condition. EEOC Determination, submitted as a part of the documents comprising Burlington Exhibit 1. The EEOC Determination also stated that Burlington defined "train service work" to include the job positions of Conductor Trainee, Brakeman, Switchman, Conductor, and Engineer . Id. The EEOC opined that these positions constituted "a broad class of *1232 jobs," noting that Burlington employed "over 16,000 in these positions." Id. The EEOC concluded that Burlington regarded Freeman as disabled, "that is, substantially limited in the major life activity of working in a broad range of train service jobs." EEOC Determination, Burlington Exhibit 1. The EEOC further concluded that Burlington had "failed to establish with objective evidence that [Freeman] posed a direct threat of significant risk of substantial harm to the health or safety of himself or others." Id. The EEOC then filed this lawsuit, alleging that Burlington discriminated against Freeman. It contends that Freeman is disabled, as defined by the ADA, because Burlington "regarded him" as disabled. As a result, the EEOC alleges, Burlington violated the ADA when it failed to hire him as a Conductor Trainee. FN2. The undisputed evidence shows that the position of railroad or locomotive engineer does not involve all physical abilities required of other train service positions. However, Burlington included it in the train service category because the collective bargaining agreement to which it is subject specifies that the position of engineer is the final step in a progression which requires that, to be eligible for training as a railroad or locomotive engineer, an individual must have held the positions of Conductor Trainee/Conductor or Brakeman/Switchman. See June 27, 2003 letter to EEOC from Burlington's Director of Equal Opportunity, EEOC Exhibit 8, ¶ 2. To be a covered employee under the ADA, an individual must be a "qualified individual with a disability." 42 U.S.C. § 12112(a); Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). A disability includes: a) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; or 2) a record of such an impairment; or 3) being "regarded as" having such an impairment. 42 U.S.C. § 12102(2). [1] In this case, the EEOC's sole basis for alleging that Freeman is covered by the ADA is its contention that Burlington "regarded" Freeman as being substantially limited in his ability to perform the major life activity of working . A person is "regarded as disabled" for ADA purposes when "(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. " Kelly v. Metallics West, Inc., 410 F.3d 670, 675 (10th Cir.2005), quoting Lanman v. Johnson County, Ks., 393 F.3d 1151, 1156 (10th Cir.2004) and Sutton v. United Air Lines. Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); see also 29 C.F.R. § 1630.2(1). FN3. According to the EEOC regulations, working is a major life activity. 29 C.F.R. § 1630.2(l ). As Burlington points out, the United States Supreme Court has expressed reservations about the propriety of including working in this category. Sutton v. United Air Lines, Inc., 527 U.S. 471, 492-93, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). However, the court has not expressly decided that issue, and Burlington does not challenge it in its motion. Accordingly, for purposes of this motion, the court will consider working to be a major life activity. [2] To be substantially limited in the major life activity of working, the employee must be unable to perform either " a class of jobs or a broad range of jobs in various classes." Doebele v. Sprint/United Management Co., 342 F.3d 1117, 1133 (10th Cir.2003), citing Sutton, 527 U.S. at 491-92, 119 S.Ct. 2139,(quoting 29 C.F.R. pt. 1630, App. § 1630.2(j)(3)(I)). To show that an employee is "regarded as" disabled because he is substantially limited in the major life activity of working, the EEOC must therefore establish that the employer regarded the employee as having an impairment substantially limiting his ability to perform a class of jobs or a broad range of jobs in various classes; it is not enough to show that he is substantially limited in his ability to perform the specific tasks required of a single position. Doebele, 342 F.3d at 1122, citing Sutton, 527 U.S. at 491-92, 119 S.Ct. 2139; see also McKenzie v. Dovala, 242 F.3d 967, 970-72 (10th Cir.2001). *1233 [3] The issue raised by Burlington's motion and the EEOC's response is whether Burlington's decision regarding Freeman applies to a "class of jobs" or a "broad range of jobs in a class." Burlington argues that the evidence shows that its decision does not satisfy the ADA definition for either category, while the EEOC contends that the requirements are applicable to a class of jobs. The ADA regulations define a "class of jobs," for purposes of determining if an individual is substantially limited in the major life activity of working, as: [t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment. 29 C.F.R. § 1630.2(j)(3)(ii)(B). A "broad range of jobs in various classes" is defined as:[t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment. 29 C.F.R. § 1630.2(j)(ii)(C). The regulations further state that the "inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(I). Thus, an employer does not violate the ADA "regarded as" provision if it believes that a limitation disqualifies an individual from performing certain functions applicable to a particular job. Sutton v. United Air Lines, Inc., 130 F.3d 893, 904 (10th Cir.1997). Furthermore, "the inability to perform one aspect of a job while retaining the ability to perform the work in general does not amount to substantial limitation of the activity of working." MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1445 (10th Cir.1996), quoting Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir.1995). Although Burlington argues that its decision regarding Freeman would disqualify him only from the train service category of jobs, the EEOC contends that he would be disqualified from a number of other Burlington jobs. The EEOC argues that many other positions involve climbing on to a train and grabbing on to bars or ladders; it also contends that non-train service employees hold on to the exterior of moving trains. In support of this contention, the EEOC offers affidavits of two Burlington non-train service employees who state that they have observed employees in a variety of job positions climbing onto a train, grabbing on with one hand, and sometimes riding on the exterior of a moving train; they also state that they have done so. See Declaration of Maria Buckles, EEOC Exhibit 10; Declaration of Robert Long, Jr., EEOC Exhibit 11. Thus, the EEOC contends, Freeman's impaired grip strength and arm strength would disqualify him from Burlington positions other than those in the train service category. According to the evidence before the court, the only Burlington positions which include as a job requirement the ability to grasp and hold on to a moving train, sometimes for an extended period of time, are Conductor Trainee/Conductor, Brakeman, Switchman/Switchman Foreman, and Hostler. Declaration of Burlington's Director of Human Resources, Terrill L. Morgan, Burlington Exhibit 1,¶ 5 (hereinafter, "Morgan Declaration"); Morgan dep., page 65, lines 22-24, Burlington Exhibit 2. Although Burlington employees holding *1234 other jobs may be required to get on and off the train, and may have to grasp a grab iron or ladder when doing so, there is no evidence that they are required, as an essential function of their job, to be able to continually grasp the exterior of the train while it is moving. The EEOC contends that, in his deposition, Morgan testified that many other positions are included in the category of train service. EEOC brief, page 3, citing Morgan dep., pages 23, 49, 50, 75, and 92-93. Morgan's deposition testimony includes extensive discussion of many job positions at Burlington and, as he expressly stated and the EEOC acknowledges, there is no written definition of "train service." He also testified that some employees may use the term loosely and refer to some positions as train service other than the specific positions which the parties agree are included. Morgan dep., p. 22-23, 65. Contrary to the EEOC's argument, he did not state in his deposition that Burlington categorized additional jobs as train service. Moreover, as Burlington points out, the critical determination made by Burlington's Chief Medical Officer was Freeman's ability to perform the essential functions of the jobs in train service which require the ability to hold on to the exterior of a moving train. The court concludes that the EEOC's argument and the employee declarations it submits do not support the EEOC's contention. Although Burlington employees in a variety of job positions may choose to grab on to a moving train and/or otherwise grasp the exterior of the train, the issue is not whether such conduct may occur. Rather, the issue is whether the ability to grab and hold onto a moving train is a requirement of the job. The EEOC's evidence does not show that employees in other job positions are required to have that ability; however, the ability to do so is a job requirement for the position of Conductor Trainee, and that is the only position for which Freeman was an applicant. The EEOC also repeatedly argues that Burlington considered Freeman's impairments as precluding him from holding positions that would require climbing onto a train, an activity required of the majority of Burlington employees. However, the EEOC's argument is not supported by the record. The record shows that Burlington's decision was not based only on Freeman's grip strength, but on the combination of his weakened left arm and diminished left hand grip strength. The evidence does not support the contention that Freeman was considered disqualified from performing any job that required the ability to climb onto a train. In fact, the evidence shows that Burlington considers him qualified for several other positions which do not require the physical ability to grab and hold onto a moving train on a regular basis. Human Resources Director Morgan cited several examples, including but are not limited to carman, mechanical laborer, maintenance-of-way laborer, truck driver, dispatcher, assistant signalman, and clerk. Morgan Declaration, ¶ 9, Burlington Exhibit 1; Morgan dep., p. 176, lines 7-24. The court concludes that the evidence establishes that the only Burlington jobs from which Freeman is disqualified because of Burlington's decision are those in the category of train service and that those jobs include Conductor Trainee/Conductor, Brakeman, Switchman/ Switch Foreman and Hostler. Thus, the question is whether train service constitutes a "class of jobs." To support its claim that train service is a class of jobs, the EEOC appears to rely heavily on the number of Burlington employees in train service nationally. In its Determination, the EEOC expressly *1235 noted that Burlington employs "over 16,000 in these positions." EEOC Determination, page 2, included in Burlington Exhibit 1. The EEOC concluded that the train service positions constitute a sufficient number of Burlington's work force to constitute a "class of jobs." Id. Burlington admits that, at the time of its decision regarding Freeman, it employed 16,050 full-time or part -time employees in the train service positions throughout the United States and that number constitutes almost half of its 37,529 employees. See Burlington answer to plaintiff's Interrogatory No. 6, EEOC Exhibit No. 6, page 5. FN4. In its brief, the EEOC states that Morgan testified that 20,000 individuals occupy train service positions. However, the deposition pages which it cites as supporting that testimony do not include that statement. See Morgan dep., pages 72-73, EEOC Exhibit 1. No other exhibit includes a reference to 20,000 employees. Despite the EEOC's emphasis on the number of train service employees, it has not submitted authority stating that the number of employees, without more, creates a class of jobs. The court has located no authority which would support such conclusion. In fact, some courts have expressly rejected the argument that numbers alone create a class of jobs. See, e.g., EEOC v. J.B. Hunt Transport, Inc., 321 F.3d 69,71, 75-77 (2d Cir.2003); Chandler v. City of Dallas, 2 F.3d 1385, 1391 n. 29 (5th Cir.1993). Instead, the courts considering whether an individual is regarded as disqualified from a class of jobs have focused on the duties required to be performed in the jobs, including the specific skills required of the disqualified person. Decisions in this circuit and others show that, where an individual cannot perform a specific required task in a particular position or positions but can perform other tasks, he is not considered excluded from a "class of jobs." For example, an aircraft mechanic who was disqualified from a position requiring the taxiing of aircraft because of his vision impairment was not substantially limited in the activity of working because his skills allowed him to perform other aircraft mechanic jobs not requiring that specific function. MacDonald, 94 F.3d at 1445. According to the Tenth Circuit, "taxiing aircraft is neither ‘a class of jobs' nor ‘a broad range of jobs in various classes,' but is instead ‘a single, particular job.' " Id.,citing 29 C.F.R. § 1630.2(j)(3)(I). Similarly, a welder whose arm injury was determined to preclude her from a welding position requiring climbing was not regarded as disabled based on the life activity of working because her skills allowed her to perform other welding jobs not requiring the ability to climb. Dutcher, 53 F.3d at 727. The Tenth Circuit has also held that the fact that an employer disqualified an individual from a job requiring lifting did not support a claim that the employer regarded him as disabled; the "belief that [the employee] could no longer perform a job that required lifting in excess of [his] capabilities does not mean that [the employer] regarded [him] as disabled" because he was able to perform other tasks which allowed him to work in other positions for the same employer. Rakity v. Dillon Companies, 302 F.3d 1152, 1164 (10th Cir.2002). Other circuits have applied a similar analysis to determine the existence of a class of jobs. See, e.g.,Rossbach v. City of Miami, 371 F.3d 1354, 1361 (11th Cir.2004); Epps v. City of Pine Lawn, 353 F.3d 588, 590 (8th Cir.2003); Sheehan v. City of Gloucester, 321 F.3d 21, 25-26 (1st Cir.2003). (Generally holding that the job of police officer is too narrow a category to constitute a class of jobs for ADA purposes,*1236 as inability to perform specific functions unique to that job does not exclude the individual from working in all law enforcement positions.) The United States Supreme Court applies the same analysis. See, e. g., Murphy v. United Parcel Service, 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999). In Murphy, a United Parcel Service mechanic whose position required him to drive commercial vehicles was determined, under Department of Transportation ("DOT") rules, to be ineligible to drive a commercial vehicle because of his hypertension. Following his termination, he alleged that his employer regarded him as disabled because it believed he was substantially limited in the major life activity of working. 527 U.S. at 519-20, 119 S.Ct. 2133. Affirming the Tenth Circuit's decision, the court held that his inability to obtain DOT certification limited him from working in a mechanic position that required such certification; however, it did not limit him from other mechanic jobs for which he had training and skills which he remained capable of performing. Id. at 524, 119 S.Ct. 2133. In fact, the evidence showed that his employer maintained numerous other job positions for which he would be qualified regardless of his hypertension. 527 U.S. at 524-25, 119 S.Ct. 2133. "Consequently, in light of petitioner's skills and the array of jobs available to petitioner utilizing those skills, petitioner has failed to show that he is regarded as unable to perform a class of jobs." Id. at 525, 119 S.Ct. 2133. In this case, when Burlington notified Freeman that it considered him disqualified for the Conductor Trainee position, it specifically stated that he was disqualified from working in "train service" and referenced the "essential function" for train service work of holding onto a moving train car. See January 10, 2003 letter to Freeman from Dr. Jarrard, EEOC Exhibit 4. Contrary to the EEOC's argument, the evidence does not show that Burlington considered Freeman disqualified from all jobs which might involve climbing on to a train or grasping a hand bar or similar feature. The evidence shows that the only jobs for which Burlington considered Freeman to be unable to perform because of his weakened left arm and diminished left hand grip strength are those which require grabbing on to, and holding on to, a moving train. This distinction is significant because, as Burlington indicates, it is based on safety considerations which are not applicable to other jobs which do not require this ability. The fact that other Burlington employees, including those submitting the declarations labeled as EEOC Exhibits 10 and 11, may perform these activities is not persuasive because there is no evidence that they are required to hold on to the exterior of a moving train in order to perform their job duties. That employees in other positions may choose to perform tasks that they are not required to perform does not mean that those tasks are essential to jobs other than the train service positions identified by Burlington. In fact, as noted above, the evidence shows that Human Resources Director Morgan considered Freeman qualified for a number of other Burlington positions not requiring the job function at issue. The EEOC attempts to distinguish the authorities cited by Burlington as inapplicable to train service work, and offers the opinion of a proposed expert witness in further support of its contentions. See EEOC Exhibits 12 and 13. The witness, an EEOC economist, submits a written report and opines that Freeman was regarded as being limited in performing a class of jobs. The report reflects, however, that she relies heavily on the conclusion that Freeman was considered ineligible to perform any job that might include climbing*1237 onto a train or grabbing exterior bars or ladders. As discussed herein, the evidence does not support that broad view because the limitation cited by Burlington is the ability to hold on to the exterior of a moving train, a requirement applicable to only train service positions. Thus, the witness's discussion of the many other positions which involve climbing onto a train or gripping handles does not apply. Having fully reviewed the evidence and the applicable law, the court concludes that the EEOC has not submitted evidence sufficient to create a material fact dispute regarding the existence of a class of jobs as that term is defined by the ADA. The evidence shows that Burlington determined Freeman was disqualified from selection for the only job for which he applied, Conductor Trainee, and the other positions in the train service category. That decision was based on the fact that those jobs, unlike other Burlington jobs, expressly require the employee to be able to hold on to the exterior of a moving train. Burlington determined that, due to his weakened left arm and diminished left hand grip strength, Freeman could not safely perform that required job function. The court concludes that this decision does not exclude Freeman from consideration for other Burlington jobs not requiring that skill; neither does the category of train service constitute a class of jobs as that term is defined by the ADA. The EEOC also argues in its response brief that Burlington's decision would disqualify Freeman from working in a "broad range of jobs in various classes," an alternative means of showing substantial limitation in the major life activity of working, as required by the ADA. As Burlington points out, the EEOC Determination cites only a "class of jobs" as the basis for this element. However, even if the Determination can be construed as also based on a finding that Freeman was regarded as limited from working in a broad range of jobs in various classes, the evidence does not support that conclusion. The EEOC's argument, including its proposed expert witness testimony, is based on its contention that Burlington determined Freeman to be disqualified from jobs requiring gripping and climbing onto equipment. As discussed above, the evidence before the court does not support that contention. That Burlington considered him disqualified from performing the essential function of holding on to the exterior of a moving train does not render him unable to perform numerous other functions for which he is otherwise qualified. The EEOC's evidence does not support its contention. Accordingly, Burlington's motion for summary judgment [Doc. No. 36] is GRANTED. Based on the parties' representations and the record before the court, the court believes that this issue is dispositive of the only claim asserted by the EEOC. Therefore, it should conclude this litigation. Because the motion and preceding discovery are limited, however, the parties are directed to advise the court if there are any remaining issues for discovery and trial. The parties shall do so by written submission no later than December 16, 2005. W.D.Okla.,2005. E.E.O.C. v. Burlington Northern & Santa Fe Railway Co. 406 F.Supp.2d 1228 Briefs and Other Related Documents (Back to top) • 2004 WL 3137199 (Trial Pleading) Defendant's Original Answer (Oct. 12, 2004) • 2004 WL 3137170 (Trial Motion, Memorandum and Affidavit) Defendant's Reply in Support of its Motion to Dismiss (Aug. 13, 2004) • 2004 WL 3139987 (Trial Motion, Memorandum and Affidavit) Plaintiff Equal Employment Opportunity Commissions Response to Defendant's Motion to Dismiss (Jul. 30, 2004) • 5:04cv00660 (Docket) (May. 27, 2004) • 2004 WL 3139989 (Trial Motion, Memorandum and Affidavit) Plaintiff Equal Employment Opportunity Commission's Objection and Response to Defendant's Motion to Reconsider Order Denying Defendant's Motion to Dismiss (2004) END OF DOCUMENT ********************************************************************** <> <1> Citations to portions of the record included in the Joint Appendix, pursuant to 10th Cir. Rules 10.3 and 30(A)(1), are designated “JA at ___.” See 10th Cir. Rule 28.1(A). References to portions of the record that are not included in the Joint Appendix, see Fed.R.App.P. 30(a)(2) (“Parts of the record may be relied on by the court or the parties even though not included in the appendix.”), correspond to the document number from the district court’s docket sheet, see JA 1-8, and are designated “Doc. __ at ___.” See 10th Cir. Rule 28(B). All filings in the district court are available electronically via the ECF link to the U.S. District Court for the Western District of Oklahoma, https://ecf.okwd.uscourts.gov/. <2> BNSF’s 2002 workforce data, JA at 270-73, shows the following number of employees in each job from which Freeman was disqualified: Brakeman (UTU) 1,751 Engine Foreman (BLE) 4 Brakeman (BLE) 11 Engine Foreman (UTU) 544 Conductor (BLE) 26 Engineer (BLE) 6,236 Conductor (BMWE) 1 Engineer (UTU) 84 Conductor (UTU) 6,928 +Fireman (BLE) 3 Inside Hostler (BLE) 4 --------------------------------- Inside Hostler (IBFO) 62 Total: 6,871 Inside Hostler (UTU) 4 Outside Hostler (BLE) 2 Yardmasters (UTU & YMA) 479 Outside Hostler (IBFO) 3 Outside Hostler (UTU) 106 Grand Total: 17,723 Outside Hostler Helper (IBFO) 5 Switchman (BLE) 63 + Switchman (UTU) 1,407 ------------------------------------- Total: 10,373 <3> The district court rejected the EEOC’s alternative arguments that BNSF perceived Freeman as unable to perform a broad range of jobs in various classes requiring grip strength, and that BNSF regarded Freeman as precluded from any job at BNSF in which workers climb on or hang from equipment. See JA at 332-33. The EEOC does not advance these alternative arguments on appeal. <4> Grip strength measurements documented in other medical reference journals indicate that Freeman’s grip strength in each hand, as measured by Dr. Unsell on December 2, 2002, was equivalent to or above the maximum recorded for male subjects in every occupational classification and age group. See I.C. Josty, M.P.H. Tyler, P.C. Shewell and A.H.N. Roberts, Grip and Pinch Strength Variations in Different Types of Workers, Journal of Hand Surgery 22B: 2: 267 Table 1(British and European Vol., 1997) (reporting ranges of grip strength, measured in kilograms, within occupational populations: Office workers measured between 33 and 62 kg. in the dominant hand and between 25 and 60 kg. in the non-dominant hand; Car mechanics measured between 30 and 70 kg.in the dominant hand and between 30 and 65 kg. in the non-dominant hand; Farmers measured between 40 and 70 kg. in the dominant hand and 32 and 70 kg. in the non-dominant hand); see also W. Hanten, W. Chen, A. Austin, R. Brooks, H. Carter, C. Law, M. Morgan, D. Sanders, C. Swan, and A. Vanderslice, Maximum Grip Strength in Normal Subjects from 20 to 64 Years of Age, Journal of Hand Therapy 195 Table 1 (July-September 1999) (recording mean maximum right (R) and left (L) grip strength (in pounds) of men in 5-year age groups between 20 and 64 years (one kilogram = 2.2 pounds; parenthetical numbers reflect conversion to kilograms): age 20-24: R=121 lb (55 kg), L=109 lb (49.5 kg); age 25-29: R=118 lb (53.6 kg), L=108 lb (49 kg); age 30-34: R=115 lb (52.3 kg), L=108 lb (49 kg); age 35-39: R=117 lb (53.2 kg), L=113 lb (51.4 kg); age 40-44: R=116 lb (52.7 kg), L=108 lb (49 kg); age 45-59: R=120 lb (54.5 kg), L=106 lb (48.2 kg); age 50-54: R=118 lb (53.6 kg), L=106 lb (48.2 kg); age 55-59: R=95 lb (43.2 kg), L=89 lb (40.5 kg); age 60-64: R=93 lb (42.3 kg), L=87 lb (39.5 kg)).