EEOC v. J.B. Hunt Transport, 2d Cir. Brief as appellant Aug. 17, 2001 01- 6084 ______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. J.B. HUNT TRANSPORT, INC., Defendant-Appellee. _____________________________________________________________ On Appeal from the United States District Court for the Northern District of New York ______________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _____________________________________________________________ PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE Course of Proceedings . . . . . . . . . . . . . . . . . . .2 Statement of Facts. . . . . . . . . . . . . . . . . . . . .4 District Court Decision . . . . . . . . . . . . . . . . . 20 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 25 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 25 ARGUMENT I. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT J.B. Hunt REGARDED THE REJECTED APPLICANTS AS SUBSTANTIALLY LIMITED IN WORKING.. . . . . . . . . . 27 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 50 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________ No. 01-6084 _________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. J.B. HUNT TRANSPORT, INC., Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the Northern District of New York _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _________________________________________________________ PRELIMINARY STATEMENT This is an appeal from a final judgment rendered by Judge Norman A. Mordue. The order is reported at 128 F. Supp.2d 117 (N.D.N.Y. 2001). STATEMENT OF JURISDICTION The district court had jurisdiction over this action pursuant to 28 U.S.C. § 1331. The district court entered final judgment on February 8, 2001, resolving all claims as to all parties, and the Commission filed a timely notice of appeal on April 9, 2001. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the evidence is sufficient to support a finding that the defendant regarded job applicants as substantially limited in working when it refused to hire them based on its belief that the applicants' use of prescription medications rendered them unfit to perform its truck driver jobs because of the risk of side effects from the medications. STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the United States District Court for the Northern District of New York dismissing this action to enforce Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The Commission initiated this action on October 24, 1997, by filing a complaint alleging that defendant violated the ADA by withdrawing conditional offers of employment from applicants taking certain prescription medications because it believed the risk that they could suffer side effects from the medications made them unfit to drive its trucks. Volume I Joint Appendix ("IJA") 56. (Complaint ¶ 8(h)). On August 4, 2000, the parties filed cross motions for summary judgment. J.B. Hunt argued: the Commission could not show J.B. Hunt engaged in a pattern and practice of discrimination because it did not disqualify every applicant taking the medications at issue; the Commission could not show the rejected applicants were covered by the ADA because they had no physical or mental impairments, and J.B. Hunt did not regard them as substantially limited in any major life activity; working is not a major life activity; and the rejected applicants were not qualified to work as tractor-trailer drivers. R. 59 (J.B. Hunt Br. at 3). The Commission argued it was entitled to partial summary judgment on the question of J.B. Hunt's liability on the ground that the company engaged in a pattern and practice of screening out applicants for commercial driver jobs on the basis of their medication usage without consideration of whether the individual applicants were qualified individuals with a disability. R. 47 (EEOC Br. at 1). On February 8, 2000, the district court denied the Commission's motion, granted defendant's motion, and entered judgment for defendant. IJA51 (Judgment). The court held that there was insufficient evidence that the rejected applicants were disabled within the meaning of the ADA. IJA50 (Order at 38). B. Statement of Facts J.B. Hunt uses a fleet of tractor-trailers for commercial transport in the United States, Canada, and Mexico. R. 61 (Whiteside Affidavit ¶ 3)(Exh. C in support of Defendant's Motion for Summary Judgment). J.B. Hunt employs approximately 8,000 "over-the-road" ("OTR") drivers who use the tractor-trailers to deliver goods to and from assigned locations. Id. ¶ 8; IJA88 (Commercial Driver Position Description). These drivers are subject to the Federal Motor Carrier Safety Regulations ("FMCSR") issued by the Department of Transportation ("DOT"). 1. J.B. Hunt's hiring procedures During the time period relevant to this action, all applications for commercial driver positions throughout the country were handled in a central location by J.B. Hunt's personnel department. IIJA508-10 (Gray Dep. at 22-24). After a conditional offer was extended, a J.B. Hunt employee would interview each candidate using a "Medical Questionnaire" or "Medical Checklist." IIJA459-61 (Chaudoin Dep. at 33-36); IIJA512 (Gray Dep. at 26); IIIJA538 (Powers I Dep. at 11); IIIJA563 (Roberts Dep. at 37); IIIJA579-80 (Spears I Dep. at 8- 9). During these interviews, applicants were asked whether they were taking any prescription medications. IJA230 (ASR Medical Questionnaire); see, e.g., IIIJA580-81 (Spears I Dep. at 9-10); IIIJA521 (McGuaran Dep. at 73). If an applicant was taking a medication, the interviewer would then consult two different documents -- a list of prescription medications disallowed by J.B. Hunt and a set of medical guidelines -- to decide whether the applicant should be rejected. IIIJA539 (Powers I Dep. at 17); IIIJA581 (Spears I Dep. at 10); IIIJA601 (Spenser I Dep. at 12); IIIJA622-23 (Westbrook I at 21-22). From 1995 to 1997, pursuant to these procedures, J.B. Hunt rejected hundreds of applicants for the position of commercial driver because they were taking prescription medications that J.B. Hunt deemed disqualifying. IJA66-87 (List of Claimants). The applicants were taking medications prescribed by their physicians for a wide range of conditions, including arthritis, depression, and hypertension. See, e.g., IJA93 (Carr Decl. ¶ 8); IJA98 (Eury Decl. ¶ 8); IJA94 (Cullum Decl. ¶ 5). 2. The Drug Review List The primary document used by J.B. Hunt interviewers to screen applicants using prescription medications was the Drug Review List ("DRL") which was compiled by David Whiteside, the Director of Compliance in J.B. Hunt's Safety Department. IJA104- 40 (DRL); IIIJA644, 646, 647 (Whiteside Dep. at 8, 18, 24). In compiling the list, Whiteside used the 1993 Physician's Desk Reference ("PDR") to classify prescription medications in various categories based on his understanding of potential side effects of the medications that could make driving unsafe, such as drowsiness, abnormal vision, inability to concentrate, delusions and hallucinations. IIIJA646 (Whiteside Dep. at 18). Whiteside had no medical training, IIIJA643, 653 (Whiteside Dep. at 6, 33), nor was anyone with medical training involved in the formulation of the DRL. IIIJA770, 651-52, 653 (Whiteside Dep. at 21, 28-29, 33). Furthermore, Whiteside did not consult anyone at the DOT with respect to the creation of the list or its use to disqualify applicants for employment. IIIJA668 (Whiteside Dep. at 67). The DRL lists 836 prescription medications and places each of them in one of five different categories of "Restriction." IJA104-40 (DRL). The restriction classification for each medication reflects Whiteside's assessment of the level of risk he believed it posed to a driver based on side effects listed in the PDR. IIIJA655-56 (Whiteside Dep. at 42-43). The restriction categories in the DRL are: (1) "Rule Out Side Affects" [sic]; (2) "Not Permitted"; (3) "Unsafe Affects" [sic]; (4) "Heart Condition;" and (5) "Disqual Cond." IJA104-40 (DRL). A medication was placed into the category of "Rule out Side Affects" if the PDR indicated it had a small, i.e. 5-10%, incidence of a potentially dangerous side effect, such as dizziness. IIIJA655-56, 661, 664 (Whiteside Dep. at 42-43, 50, 58). If an applicant was taking such a medication, J.B. Hunt required the applicant to obtain a medical release from the prescribing doctor stating that the applicant could safely drive a tractor-trailer while using the drug.<1> Whiteside placed medications classified in Schedules II-V by the Drug Enforcement Agency<2> in the "Not Permitted" category based on his erroneous belief that the DOT prohibited drivers from taking Schedule II-V medications. IJA104 (DRL); IIIJA657, 667 (Whiteside Dep. at 45, 63); see also 49 C.F.R. § 391.41. In fact, as defendant's expert testified, Schedule II-V drugs are permitted by the DOT with appropriate medical clearance. See 49 C.F.R. § 392.4; IIIJA568 (Scapellato Dep. at 44). Whiteside also believed the DOT prohibited drivers from operating tractor- trailers while taking the anticoagulent, Coumadin, and ascribed it the restriction "Not Permitted." IJA110 (DRL); IIIJA667 (Whiteside Dep. at 63). Defendant's expert acknowledged, however, that at the time the DRL was compiled, the DOT did not have a regulatory position on Coumadin. IIIJA566-67 (Scapellato Dep. at 26-27). Furthermore, in April 1996, the DOT issued an official interpretation stating that Coumadin usage was not an automatic disqualifier for commercial drivers. Id. Whiteside characterized a medication as having "Unsafe Affects" [sic] if the PDR cautioned against operating heavy machinery or driving while taking the medication, if the PDR indicated the medication could cause drowsiness or sedation, or if the PDR indicated a high (more than 10% probability) incidence of dizziness. IIIJA658, 660, 664 (Whiteside Dep. at 46, 48, 58). For some of these medications, Whiteside indicated in the "Comment" column, "WARNING on driving motor vehicle." IIIJA654, 658-59 (Whiteside at 41, 46-47). Whiteside used the restriction "Heart Condition" to designate medications used for heart problems that could be disqualifying pursuant to DOT regulations. IIIJA663-64 (Whiteside Dep. at 57-58). Whiteside testified that such conditions included angina, uncontrolled blood pressure, and arrhythmia. IIIJA662 (Whiteside Dep. at 51). Whiteside assigned a medication the restriction "Disqualifying Condition" if it was used to treat a condition that may be disqualifying pursuant to DOT regulations. IIIJA662 (Whiteside Dep. at 51). Since these conditions are not automatically disqualifying, Whiteside testified, a medication used to treat "any condition that could affect the safety of the driver" was to be evaluated by the company's doctor. IIIJA665-66 (Whiteside Dep. at 61-62). The DRL also includes a column labeled "Comments" that contains language about the listed medications gleaned from the PDR. IIIJA654 (Whiteside Dep. at 41) A column labeled "Treats" lists one or two conditions for which the medication is most commonly used. IIIJA659 (Whiteside Dep. at 47). 3. J.B. Hunt's Medical Guidelines The other document used by J.B. Hunt's interviewers to screen applicants for medication was its "Medical Guidelines," which was developed by J.B. Hunt's "Medical Advisor" in 1996. IJA151 (Medical Guidelines dated 4/11/96 at 11); IIJA462-63 (Chaudoin Dep. at 82-83). The Medical Advisor who developed the guidelines had no medical training and did not consult anyone with medical training in drafting the guidelines. IIJA501-03 (Gray Dep. at 4-6). The guidelines provide that applicants currently taking medication for any psychological condition are not to be hired as truck drivers. IJA151 (Guidelines at 11). They direct J.B. Hunt interviewers to tell applicants taking such medications that they are ineligible for hire as truck drivers until they have discontinued use of the medication for thirty days. Id.; IJA158- 228 (J.B. Hunt Investigator Checklists and Checklist Notes for applicants taking medications for psychological conditions); IIJA496-98 (Garber Dep. at 27-29); IIIJA543 (Powers I Dep. at 30); IIIJA608-08 (Spenser I Dep. at 24-25); IIIJA632 (Westbrook I Dep. at 42); IJA97 (Eury Decl. ¶ 6). 4. Use of the DRL and Medical Guidelines J.B. Hunt's interviewers were told that if they had questions about an applicant's use of medications, they could confer with J.B. Hunt's Medical Advisor. IIJA461 (Chaudoin Dep. at 36); IIIJA544 (Powers I Dep. at 44); IIIJA547 (Powers II Dep. at 5); IIIJA563 (Roberts Dep. at 37); IIIJA594-95 (Spears II Dep. at 6-7); IIIJA601-02 (Spenser I Dep. at 12-13). If the interviewer determined, either with or without consultation with the Medical Advisor, that an applicant did not meet the requirements of the DRL or the medical guidelines, the applicant was rejected for employment as a J.B. Hunt driver. IIJA516-17 (Gray Dep. at 32-33). Neither the Medical Advisor nor any of J.B. Hunt's interviewers had medical training. IIJA501-03 (Gray Dep. at 4- 6); IIIJA545 (Powers I Dep. at 50); IIIJA586, 591 (Spears I Dep. at 15, 57); IIIJA612 (Spenser I Dep. at 65); IIIJA636 (Westbrook I Dep. at 92). For example, Michael Gray, who was the only Medical Advisor at J.B. Hunt from August 1996 to July 1998, had been a cashier at Red Lobster and a sales associate in a lumber yard before he came to work for J.B. Hunt. IIJA503-04 (Gray Dep. at 6, 13). On some occasions, J.B. Hunt's medical advisors sent medical information to Craig Cooper, a doctor of Osteopathy who reviewed a small number of applicants' medical records for J.B. Hunt on an informal basis from 1994 to 1998. IIJA507 (Gray Dep. at 16). Dr. Cooper offered his views on "what medical problems a patient has that might have adversely affect [sic] upon public safety." IIJA465-66, 467, 468 (Cooper Dep. at 11-12, 14, 26); see also IIIJA562 (Roberts Dep. at 36). Dr. Cooper acknowledged that he is not familiar with DOT regulations for commercial truck drivers. IIJA467 (Cooper Dep. at 14). Applicants who were taking medications disallowed by the DRL or Medical Guidelines were told that the medication was "not allowed on the truck" or "disqualifying," and then rejected for the job of OTR driver. See, e.g., IJA99-100 (Lisa Decl. ¶ 7); IIIJA540 (Powers I Dep. at 19); IIJA474, 477, 478 (Davison Dep. at 27, 62, 63); IIJA482 (Doran Dep. at 41); IIJA487 (Gallion Dep. at 72); IIJA496 (Garber Dep. at 27); IIIJA522 (McGauran Dep. at 74); IIIJA530-31, 532 (Moore Dep. at 85-86, 87); IIIJA550-51, 553, 554-55 (Pullins Dep. at 18-19, 21, 31-32); IIIJA574 (Smith Dep. at 22); IIIJA581-83 (Spears I Dep. at 10-12); IIIJA540 (Powers I Dep. at 19); IIIJA581-82 (Spears I Dep. at 10-11); IIIJA603 (Spenser I Dep. at 14); IIIJA626-27 (Westbrook I Dep. at 27-28). Applicants who were taking medications for psychological conditions, were told they were ineligible for employment with J.B. Hunt until they were off the medication for at least thirty days and could provide proof that treatment was no longer necessary. IIIJA541 (Powers I Dep. at 23); IIIJA606-09 (Spenser I Dep. at 23-26); IIIJA630-31 (Westbrook I Dep. at 39-40); IJA97 (Eury Decl. ¶ 6). J.B. Hunt's interviewers did not ask applicants taking proscribed medications if they suffered any side effects. See, e.g., IJA102 (Norris Decl. ¶ 7); IIIJA597 (Spears II Dep. at 13); IJA100 (Lisa Decl. ¶ 8). Applicants taking such medications were rejected even if they were experiencing no serious side effects from their medications. See, e.g., IJA92, 93 (Carr Decl. ¶¶ 1, 9); IJA94, 95 (Cullum Decl. ¶¶ 1, 8); IJA97, 98 (Eury Decl. ¶¶ 1, 10); IJA101, 102 (Norris Decl. ¶¶ 1, 9); IIJA474 (Davison Dep. at 27); IIJA496-97 (Garber Dep. at 27-28). Applicants who volunteered that they experienced no side effects from the offending medication were told that that was not relevant. See, e.g., IJA95 (Cullum Decl. ¶ 8); IJA171 (J.B. Hunt Scheduler Notes for Timothy Earner); IIJA474 (Davison Dep. at 27); IIIJA551-52 (Pullins Dep. at 19-20); IIIJA618 (Tubbe Dep. at 34). Many of the applicants rejected by J.B. Hunt for taking proscribed medications were medically certified under DOT regulations at the time they applied to J.B. Hunt. See, e.g., IJA92 (Carr Decl. ¶ 3); IJA94 (Cullum Decl. ¶ 4); IJA97 (Eury Decl. ¶ 3); IJA99 (Lisa Decl. ¶ 3); IJA101 (Norris Decl. ¶ 3); IIJA433, 437-38 (Adair Dep. at 13, 56-57); IIJA448 (Beck-Manning Dep. at 41); IIJA475 (Davison Dep. at 28); IIJA486 (Gallion Dep. at 49); IIJA494, 497 (Garber Dep. at 21, 28); IIIJA520 (McGuaran Dep. at 35); IIIJA557 (Pullins Dep. at 58); IIIJA575 (Smith Dep. at 24); IIIJA619-20 (Tubbe Dep. at 40-41). Others were eligible for DOT medical certification. IIIJA736 (Hegmann Rpt. at 3). 5. Treatment of John Carnevale John Carnevale received a conditional offer of employment as a commercial long-haul truck driver in August 1995. R. 51 (Exh. 33 in Support of Plaintiff's Motion for Partial Summary Judgment, Charge of Discrimination). J.B. Hunt then conducted a follow-up phone interview where Carnevale was asked about his medical history, including whether he was currently taking any medications. Carnevale responded that he was taking Flagyl to treat Crohn's disease. IIJA454 (Carnevale Dep. at 50). J.B. Hunt's interviewer informed him that he could not drive a truck for J.B. Hunt as long as he was taking Flagyl. IIJA456 (Carnevale Dep. at 100); IIIJA737 (Investigator Checklist for John Carnevale). When Dr. Cooper was asked to evaluate Carnevale's medical records, he stated, "I didn't think it would be in this patient's best interest to pursue this line of work because of the lack of restroom facilities and not being very well rested." IIIJA738 (Review of Medical Records). Cooper testified that "[t]ruckers are gone away from home a long period of time. . . . If you will look at textbooks on bowel problems, you wouldn't recommend this type of a lifestyle to this person. . . . [W]hen they have problems, it's urgent. It's very uncomfortable. They're not very attentive." IIIJA743 (Cooper Dep. at 59). Cooper testified that his assessment of Carnevale's condition was based on a former classmate's experience with the disease. Id. Cooper concluded that "[h]e's going to, in all likelihood, suffer a lot of illness or the feeling of illness that I think he could avoid in another job, and that's why I said it's not in his best interest." Id. Cooper conceded that DOT regulations did not restrict persons with Crohn's disease from driving trucks. IIIJA741 (Cooper Dep. at 57). He testified that Flagyl may have serious side effects of convulsions and peripheral neuropathy, but admitted that Carnevale did not suffer from such side effects. IIJA472 (Cooper Dep. at 64). After he was rejected, Carnevale filed a charge of disability discrimination with the Commission in November 1995. R. 51 (Charge of Discrimination). 6. Treatment of other applicants Other applicants had similar experiences. Notes taken by J.B. Hunt's interviewers and medical advisors indicate that they believed that some applicants were not qualified to drive a commercial vehicle because of the medications they were taking. See IJA205 (Medical Advisor notes for Beverly Odom)(medical advisor noted that applicant "cannot drive [a tractor-trailer] as long as she is taking this medication [Welbutrin]"); IIJA282 (Investigator Checklist for Charles Cundiff) ("currently takes Litane and Welburtin[which are not approved for driving."); IIIJA710 (Checklist Notes for David Gorgas) ("I did tell applicant he cannot take Dilantin and drive a [tractor- trailer]"). Dr. Cooper testified that "some of [the medications on the DRL] are on the DOT's non-approved list" and "you just can't use them and drive is the way I've been told." IIJA469 (Cooper Dep. at 27). J.B. Hunt told some applicants directly during interviews that their medication usage barred them from driving. For example, applicant Joseph Lisa stated that he was told by the J.B. Hunt interviewer that he would "never drive for anybody" because he was taking Coumadin. IJA99-100 (Lisa Decl. ¶ 7). Jane Beck-Manning, who was taking Paxil at the time she applied to J.B. Hunt, was told by a J.B. Hunt interviewer that "as far as she knew, it was illegal for a driver to drive while on this medication." IIJA449 (Beck-Manning Dep. at 60). She was instructed to call J.B. Hunt if she ever got off the medication. Id. at 61. Other applicants encountered a similar response. See IIJA291 (Investigator Checklist for James Ferguson)(applicant told by interviewer that "he cannot take Isodril and drive"); IIJA296 (Investigator Checklist for John Goch) (Checklist states interviewer "told applicant that the prescription that he is taking has unsafe affects [sic] – for driving jobs"); IJA181 (Investigator Checklist for Judith Griggers)(interviewer told applicant she "could not be on Prozac and drive because it can cause unsafe affect" [sic]; IJA203 (Investigator Checklist for Thomas Mitchell)(interviewer told Thomas Mitchell, who was taking an anti-depressant, that "he could not drive while on this medication"); IJA221 (Medical Advisor Checklist Notes for Patricia Sellars)(medical advisor noted that he "told applicant that she cannot be on Desyrel and drive"). At times, J.B. Hunt officials stated that certain medications were inconsistent with the profession of truck driving. A J.B. Hunt Medical Advisor noted that "[Z]oloft is considered unsafe for driving. . . . [H]e would most likely have difficulty functioning in the lifestyle of a trucker . . . ." IIJA301 (Medical Advisor Checklist Notes for Lamar Harris). See also IIJA402 (Investigator Checklist for Joyce Benson)(Dr. Cooper indicated that Benson's "problems with sleep and concentration under stress are not very compatible with the lifestyle expected of a driver"); IIJA474 (Cooper Dep. at 64)(Cooper testified that John Carnevale was not suited for "this type of job"); IIIJA742 (Cooper Dep. at 58)("it may not actually be in this patient's best interest to pursue this profession"). There was expert evidence that J.B. Hunt's policy of disqualifying applicants based on particular medication usage was overbroad, inaccurate, and not closely correlated to driver safety. Dr. Robert MacArthur, a doctor of pharmacology, concluded in his report that the Physician's Desk Reference, on which J.B. Hunt's DRL was based, "is an inadequate source of current, detailed, drug and drug adverse event information." IIIJA732 (MacArthur Rpt. at 6). According to Dr. MacArthur: The adverse event information provided [in the PDR] may not be applicable to the manner . . . a drug is used in a particular patient. For that reason, the PDR is a poor source of information to use when making judgments about the risk of adverse events for all individuals taking a specific drug. Id. Dr. MacArthur emphasized that the PDR "is an especially poor choice when used for that purpose by a non-medical professional." Id. Kurt Hegmann, MD, stated that J.B. Hunt's approach to medical certification of commercial motor vehicle drivers differed from accepted practice in the profession in the following ways: (1) J.B. Hunt used non-medical personnel to evaluate medical information; (2) J.B. Hunt used non-medical personnel to determine physical and medical suitability to drive; (3) J.B. Hunt used a check-list of medications to screen applicants without regard to whether a side effect was present; (4) J.B. Hunt maintained that the use of Coumadin was automatically disqualifying under DOT regulation, despite the repeal of that regulation;<3> (5) J.B. Hunt's procedure failed to take into account an applicant's prior driving record; (6) J.B. Hunt failed to administer a medical history and physical examination to determine whether an applicant was physically qualified; and (7) J.B. Hunt often used non-physicians to review medical records. IIIJA735-36 (Hegmann Rpt. at 2-3). Dr. Hegmann testified that "it appears that medical decisions were being made by nonmedical personnel, and that process appeared to start already with the administration of the questionnaire."<4> IIIJA757 (Hegmann Dep. at 57). Dr. Hegmann found it troubling that patients in some cases quit taking medications to comply with requests from J.B. Hunt that they be off medications for thirty days. Id. Hegmann also was concerned that one applicant was "seriously considering stopping Coumadin and switching to aspirin, which is according to his records, potentially a hazardous decision." Id. According to Dr. Hegmann, J.B. Hunt's medical review process was atypical in the field. He testified, "The usual process for handling these types of situations is to refer the person for a DOT medical examination . . . to have an independent physician to evaluate the situation to determine whether the person can drive or not . . . ." IIIJA758 (Hegmann Dep. at 58). J.B. Hunt discontinued use of the medication list at the end of 1997. R. 49 (Amended Answers to Plaintiff's First Set of Interrogatories dated November 6, 1999 at 7). J.B. Hunt now refers applicants to an outside physician for a DOT physical. Id. C. The District Court Decision The district court granted defendant's motion for summary judgment and denied the Commission's motion holding that the rejected applicants were not disabled and J.B. Hunt did not regard them as disabled. In denying the Commission's motion for summary judgment, the court rejected the Commission's contention that it was not required to establish that the rejected applicants were qualified individuals with a disability at the liability phase of a pattern or practice case. The court held that to withstand summary judgment on liability, the "EEOC need not prove that each and every class member herein was the victim of discrimination prohibited by the ADA," but "it must show that at least some of the purported class members are such persons." IJA28 (Order at 16) (emphasis in original). The court characterized the Commission's case as deficient "in one key respect" – the Commission "failed to establish or even allege the nature of the disabilities afflicting any of the claimants or the disabilities they were regarded as having." IJA31 (Order at 19). The court stated that the Commission erroneously assumed that individuals taking prescription medications for medical conditions are necessarily disabled under the ADA. IJA28, 30-31 (Order at 16, 18-19). Relying on Sutton v. United Air Lines, 119 S. Ct. 2139 (1999), the court noted that persons with impairments corrected by medication or other measures are not disabled under the ADA. See IJA29-30 (Order at 17-18) (quoting Sutton, 119 S. Ct. at 2146-47). The court rejected the Commission's argument that J.B. Hunt regarded applicants taking medications on the DRL as substantially limited in working as truck drivers when it rejected them from OTR positions because the side effects of their medications potentially precluded them from safely operating a commercial vehicle, finding that "[t]his argument sets presumption on supposition." IJA37 (Order at 25). The court concluded that there was insufficient evidence that J.B. Hunt regarded the rejected applicants as unable to perform jobs other than the particular OTR truck driver jobs at defendant's company for which they applied. IJA15-16, 38 (Order at 3-4, 26). The court stated that the fact that many applicants were already working as truck drivers when they applied for OTR jobs at J.B. Hunt suggests that the medication list is simply a more stringent safety standard than those used by other companies.<5> IJA37 (Order at 25-26 n.17). The court determined that J.B. Hunt's comments to the rejected applicants that they could not take a particular medication and drive were "too vague and general to evince a company-wide view that applicants taking certain prescription drugs were unqualified to operate all commercial vehicles." Id. The court reasoned that even if other companies disallowed the same medications as J.B. Hunt, that does not imply that the applicants are substantially limited in working. See id. (citing Sutton at 119 S. Ct. at 2151-52). The court rejected the Commission's argument that J.B. Hunt regarded the rejected applicants as substantially limited in working because, if they actually experienced the side effects J.B. Hunt feared, they would be precluded from a broad range of jobs. IJA39 (Order at 27). According to the court, there is "no connection" between the medication list and the claimants because the list was based on potential side effects and there is no evidence that any of the claimants actually experienced these side effects. IJA39, 48 (Order at 27, 36). Rather, the Court stated, J.B. Hunt developed the list "to screen out candidates with potentially dangerous side effects that might inhibit their ability to drive a tractor-trailer." IJA39 (Order at 27) (emphasis in original). In the court's view, the rejected applicants were not treated as if they had any side effects. Instead J.B. Hunt merely recognized that the risk that they might have side effects at some point made truck driving too dangerous. IJA43 (Order at 31). Accordingly, the court concluded, "The mere fact that J.B. Hunt believed claimants' use of various medications might result in any or all of the above-referenced side effects, standing alone, is insufficient to demonstrate J.B. Hunt viewed claimants as substantially impaired in any major life activity." IJA43 (Order at 31). The court also concluded that the Commission failed to show that J.B. Hunt believed that any claimant was substantially limited in life activities other than working. According to the court, the fact that J.B. Hunt thought the use of prohibited medications might result in the side effects listed in the DRL is insufficient to show it viewed any applicant as substantially limited in thinking, concentrating, seeing or sleeping, as the Commission argued. IJA43-44 (Order at 31-32). Instead, the court stated, "J.B. Hunt regarded claimants only as unable to drive one of its trucks based on use of medication." IJA44 (Order at 32). Finally, the court rejected the Commission's argument that the rejected applicants had a record of a disability. The court concluded that there is no evidence that J.B. Hunt had seen medical records evincing anything more than an impairment. To be a record of a disability, the court stated, a medical record must reflect an impairment that substantially limits a major life activity. IJA45 (Order at 33). STANDARD OF REVIEW This Court reviews the denial of a motion for summary judgment de novo. Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999). A court determining whether summary judgment was properly granted "must resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Fitzgerald v. Henderson, 251 F.3d 345, 360 (2d Cir. 2001). Summary judgment is appropriate only where no reasonable fact finder could return a verdict for the Commission. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). SUMMARY OF ARGUMENT The district court erred in granting summary judgment for J.B. Hunt because there is sufficient evidence to support a finding that J.B. Hunt regarded the rejected applicants as substantially limited in the major life activity of working. An individual is substantially limited in working if he is unable to perform a class of jobs or a broad range of jobs in various classes. Where an employer's actions and statements indicate that it regards an individual as if he has an impairment that has such an effect, then the individual is disabled by virtue of the way he is regarded by the employer. In this case, J.B. Hunt's actions in disqualifying hundreds of applicants from employment as OTR truck drivers, combined with the evidence showing that it did so based on factors that would disqualify them from the entire class of truck driving jobs and a broad range of safety- sensitive jobs, would support a finding that J.B. Hunt regarded the rejected applicants as substantially limited in the major life activity of working. It is undisputed that J.B. Hunt believed that the applicants taking disallowed medications were unfit to perform the company's truck driving positions because of the risk of potential side effects from the medications, or because J.B. Hunt believed some aspect of the underlying condition associated with a medication made truck driving inadvisable. J.B. Hunt officials withdrew conditional offers from hundreds of applicants pursuant to a policy that disallowed numerous medications without regard to whether applicants were experiencing any side effects. J.B. Hunt's medical interview notes reveal that J.B. Hunt representatives stated to some applicants that they could not drive while on the medication, or that use of a medication was not suited for the truck driver lifestyle. Nothing in the record suggests that there is anything unique about the requirements of the J.B. Hunt tractor-trailer driver jobs as compared to other truck driving jobs throughout the country. This evidence would support an inference that J.B. Hunt regarded the applicants as unfit for any job driving a truck, a class of jobs. Additionally, because J.B. Hunt targeted medications with potential side effects such as drowsiness, abnormal vision, inability to concentrate, delusions and hallucinations, a jury could also infer that J.B. Hunt believed these applicants were substantially limited in their ability to perform other types of jobs where similar levels of alertness, clear vision or lack of dizziness and hallucinations are required. These would constitute a broad range of jobs, including construction jobs that involve operating heavy machinery; working with dangerous chemicals; working as a prison guard; or other potentially dangerous activities requiring consistent alertness and lucidity. ARGUMENT I. THE EVIDENCE IS SUFFICIENT TO SUPPORT A FINDING THAT J.B. HUNT REGARDED THE REJECTED APPLICANTS AS SUBSTANTIALLY LIMITED IN WORKING. An employer "runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity." Sutton v. United Air Lines, 527 U.S. 471, 490 (1999). In this case, the Commission alleges that J.B. Hunt violated the ADA by refusing to hire hundreds of applicants based on the fact that they take prescription medications that J.B. Hunt believes render them unfit to drive a truck.<6> The district court held that J.B. Hunt's actions did not violate the ADA because there was insufficient evidence that J.B. Hunt regarded the rejected applicants as substantially limited in a major life activity. On the contrary, there was ample evidence to support a finding that J.B. Hunt regarded the rejected applicants as substantially limited in their ability to work. The ADA makes it unlawful for an employer to refuse to hire "a qualified individual with a disability" because of the individual's disability. 42 U.S.C. § 12112(a). A disability is defined in the ADA as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual," or "being regarded as having such an impairment." 42 U.S.C. § 12102(2)(A)&(C).<7> Accordingly, an individual has a disability within the meaning of the ADA where an employer mistakenly believes she has a physical impairment that substantially limits a major life activity. Sutton, 527 U.S. at 489. See also Francis v. City of Meriden, 129 F.3d 281, 285 (2d Cir. 1997)("the plaintiff must allege that the employer believed, however erroneously, that the plaintiff suffered from an ‘impairment' that, if it truly existed, would be covered under the [ADA]"). The ADA's prohibition of discrimination against persons "regarded as" substantially limited by a physical or mental impairment is designed to protect against attitudinal barriers about disability, including "concerns about productivity, safety, insurance, liability, attendance, cost of accommodation and accessibility, and acceptance by co-workers and customers." See H.R. Rep. 101-485 (III) (1990), reprinted in 1990 U.S.C.C.A.N. 453. See also EEOC Compl. Man. § 902.8, ¶ 6888 at 5325 ("Quite often, employers will assume, without any objective evidence, that a person's physical or mental condition will cause problems in these areas. The ADA is designed to prevent employment discrimination based on mere speculation and unfounded fears about disability."). Cf. School Bd. Of Nassau County v. Arline, 480 U.S. 273, 284 (1987)(by including "regarded as" in the definition of disability, "Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment"). In evaluating how the employer "regarded" an individual, a court must look at both the employer's subjective beliefs and its objective actions. See EEOC Compl. Man. § 902.8, ¶ 6888 at 5326 (in determining whether an individual is regarded as having a disability, "one must examine the employer's perception and treatment of the charging party"). Both what the employer believed about the individual, and its actions towards him, inform the ultimate determination of whether it regarded him as substantially limited. For this reason, it is not enough for an employer merely to assert that it did not believe an applicant was substantially limited, especially if its actions betray a contrary perception. The evidence in this case is sufficient to support a finding that J.B. Hunt regarded the rejected applicants as substantially limited in the major life activity of working. To be regarded as substantially limited in working, an individual must be viewed as "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." 29 C.F.R. § 1630.2(j)(3)(i); see also Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 154 (2d Cir. 1998)(quoting § 1630.2); Bartlett v. New York State Bd. of Law Exam'rs, 226 F.3d 69, 82 (2d Cir. 2000) (same). A court should carefully consider the kinds of jobs from which an individual is disqualified. Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998). In determining whether an impairment significantly restricts an individual in performing a class of jobs, "a court must consider ‘[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.'" Bartlett, 226 F.3d at 83, quoting 29 C.F.R. § 1630.2(j)(3)(ii)(B). In assessing whether an individual is precluded from a broad range of jobs, a fact finder would consider "the 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 . . . ." 29 C.F.R. § 1630.2(j)(3)(ii)(C). J.B. Hunt's words and actions demonstrate that it viewed the rejected applicants as significantly restricted in their ability to perform the class of truck driving jobs. If the rejected applicants were precluded from the entire profession of truck driving, that limitation would constitute a significant change in their career paths. Consequently, a jury could find that they were substantially limited in working. In determining whether a plaintiff is precluded from a class of jobs, a court begins by "identifying [plaintiff's] pertinent ‘training, knowledge, skills or abilities,'" and then compares "the jobs utilizing those qualifications with the jobs from which [plaintiff] is excluded and ask[s] whether exclusion from the latter is a significant restriction with respect to the former." Bartlett, 226 F.3d at 83. Using this approach, the courts that have considered the question have consistently found that truck driving is a class of jobs. See Best v. Shell Oil, 107 F.3d 544, 548 (7th Cir. 1997) (reasonable trier of fact could find that plaintiff's bad knee substantially limited his ability to work as a truck driver); Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1154 (7th Cir. 1998) (driving sleeper trucks is one job within class of truck driving jobs); Stensrud v. Szabo Contracting Co., Inc., No. 98C878, 1999 WL 5921110, at *6 (N.D. Ill. Aug. 2, 1999) (truck driving is a class of jobs, distinguishing Sutton and Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999)); King v. Yellow Freight Sys., Inc., No. 4:99CV1281, 2000 U.S. Dist. LEXIS 20062, at *15 (E.D. Mo. Nov. 20, 2000) (truck driving constitutes a class of jobs, not a particular job). Cf. Maloney v. ANR Freight Sys., Inc., 16 Cal. App. 4th 1284, 1288 (1993) (in case brought under California Fair Employment and Housing Act, plaintiff was not substantially limited in working because he could still drive a truck, his chosen profession, and was only precluded from driving a sleeper truck). Truck driving is analogous to occupations that other courts have found to be a class of jobs. Courts have found that law enforcement, classroom teaching, and nursing are each a class of jobs. See Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1175 (9th Cir. 1998)(sufficient evidence to support a finding that classroom teaching is a class of jobs where plaintiff's job expectations and training qualified him for educational positions in math and computer science); McKenzie v. Dovala 242 F.3d 967, 971-72 & n.6 (10th Cir. 2001) (law enforcement was plaintiff's "prior and preferred field" and plaintiff submitted "uncontroverted evidence that . . . she has been regarded as unemployable in the ‘class of jobs utilizing [her] skills'") (quoting Murphy, 527 U.S. at 524); Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1089 (10th Cir. 1999) (flight nurse is one job within a class of nursing jobs). Like truck driving, law enforcement, classroom teaching, and nursing are examples of particular career paths utilizing a specific set of training, skills, knowledge, and abilities that also require some kind of government certification or licensure. Tractor-trailer drivers undergo specialized driver training, must pass a road test, earn commercial driver's licenses, and be medically certified under the DOT regulations. See Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 1998-99 Edition, Bulletin 2500 at 474-75 (1998). An individual precluded from the entire class of truck driving jobs is not "generally employable in his preferred field." See Murphy, 527 U.S. at 524. Although this Court has not had occasion to decide whether truck driving is a class of jobs, the Court's reasoning in Bartlett, where it held that jobs involving the practice of law constitute a class of jobs, supports the Commission's view that truck driving is a class of jobs. In Bartlett, an individual with dyslexia who had earned a law degree sought an accommodation that would enable her to pass the New York Bar Exam; without this credential, she would be excluded from the practice of law. 226 F.3d at 84. This Court recognized that "the many and varied jobs utilizing legal training constitute a ‘class of jobs'" and cited the Dictionary of Occupational Titles, which listed jobs under the heading "Occupations in Law and Jurisprudence," including 12 different categories of lawyers. Id. at 83. Those include criminal attorneys, insurance attorneys, admiralty attorneys, and corporate attorneys. See Dictionary of Occupational Titles 84 (4th ed. 1991). Here, the rejected applicants had commercial driver's licenses and were DOT medically certified (or eligible) and eligible for hire to drive commercial vehicles over 10,000 pounds. See, e.g., supra, at p. 13; 49 C.F.R. § 390.5 (commercial motor vehicle means any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle weighs at least 10,001 pounds). Applicants precluded from driving heavy trucks or tractor-trailers could not drive a number of different kinds of vehicles, including moving vans, automobile carriers, log-trucks, and cement trucks. See Office of Management & Budget, Standard Occupational Classification Manual at 220 (2000 ed.) & 327 (1980 ed.). Just as Bartlett's impairment arguably had the effect of "bar[ring] a person with a law degree from practicing law," the impairments J.B. Hunt perceived the rejected applicants to have would bar individuals with DOT certification and a commercial driver's license from pursuing their chosen career. In Bartlett, this Court also considered the occupation in question in relation to the number of individuals possessing the requirements for the position. For example, using the facts in Sutton, the Court noted that the number of people who are global airline pilots is small in relation to the number of people holding flying licenses. See 226 F.3d at 84. Thus, the Court explained, global airline pilot was one job among a number of positions using flying skills and not a class of jobs. Similarly, in assessing the facts in Murphy, this Court again concluded that the plaintiff was only excluded from a small number of mechanic jobs -- those requiring DOT certification: "[t]he number of mechanic jobs that require driving a commercial motor vehicle is presumably small, relative to the number of mechanic jobs generally . . . ." Id. The Court distinguished Bartlett's predicament from the plaintiffs' in Sutton and Murphy: "the number of lawyers practicing law, relative to the number of people holding a law degree, is surely larger in proportion than the number of global airline pilots relative to the number of people who hold licenses to fly." Id. Here, the number of truck drivers relative to the number of people possessing commercial driver's licenses and DOT medical certification is presumably large. Thus under this Court's reasoning in Bartlett, truck driving would be a class of jobs. Where an employer refuses to hire an applicant on the basis of qualities or perceptions that would broadly disqualify that individual from a class of jobs, that is the very definition of "regarding" the person as substantially limited in his ability to work. See E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1099 (D. Hawaii 1980) ("[a] person who is disqualified from employment in his chosen field has a substantial handicap to employment, and is substantially limited in one of his major life activities"); Partlow v. Runyon, 826 F. Supp. 40, 44 (D.N.H. 1993) ("the proper test is whether the impairment, as perceived, would affect the individual's ability to find work across the spectrum of same or similar jobs") (emphasis in original). Moreover, given that truck drivers held 3,050,000 jobs in 1996, Occupational Outlook Handbook at 474, a jury could find that the rejected applicants, as perceived by J.B. Hunt, were significantly limited in working. There is also sufficient evidence to support a finding that J.B. Hunt perceived the claimants as significantly restricted in their ability to perform a broad range of safety-sensitive jobs. If the applicants were truly susceptible to impairments such as drowsiness, severe headaches, delusions, decreased alertness, hallucinations, or abnormal vision, that susceptibility would prevent them from performing jobs that required driving or consistent lucidity, alertness, and clear vision. See Shiplett v. Amtrak, 182 F.3d 918, 1999 WL 435169, at *8 (6th Cir. June 17, 1999) (unpublished) (train engineer taking anti-anxiety drug with potential side effects of drowsiness, memory impairment, lightheadedness, and decreased coordination was regarded as substantially limited in working because evidence suggested that Amtrak's medical advisor thought he was substantially limited in his ability to perform any of a broad range of safety-sensitive jobs). The evidence in this case would allow a finding that J.B. Hunt perceived the rejected applicants as significantly restricted in their ability to perform not just J.B. Hunt's driving jobs, but the entire class of truck driving jobs. The record also supports a determination that J.B. Hunt regarded the rejected applicants as precluded from a broad range of safety sensitive jobs for which similar levels of alertness, clear vision or lack of dizziness and hallucinations are required. These would include other driving jobs; construction jobs that involve operating heavy machinery; working with dangerous chemicals; working as a prison guard, or other potentially dangerous activities requiring consistent alertness and lucidity. It is undisputed that the applicants were rejected for J.B. Hunt's driver jobs based on their prescription medication usage. It is also undisputed that J.B. Hunt rejected applicants taking these drugs out of concern for the potential side effects associated with such medications or for the underlying conditions associated with the medications. A jury could find, as a matter of logic and common sense, that, if J.B. Hunt believed the rejected applicants were unfit for the OTR truck driving jobs because they were susceptible to dangerous side effects from their medications, J.B. Hunt must also believe they could not perform other truck driving jobs or jobs requiring the same degree of consistent clear vision and alertness. See Colwell, 158 F.3d at 646 ("whether an individual is ‘regarded as' having a disability ‘turns on the employer's perception of the employee' and is therefore ‘a question of intent, not whether the employee has a disability'") (quoting Francis, 129 F.3d at 284). Consequently, the district court erred in concluding that the Commission presented "no evidence that any claimant was actually disabled, that is substantially limited in any recognized major life activity or was perceived as being so limited by J.B. Hunt." IJA48 (Order at 20). The district court stated that there was "no connection" between the medication list and the rejected applicants because there was "no evidence that any claimant actually suffered from any of the side effects" mentioned on the list. See IJA48 (Order at 36). This statement reflects a misunderstanding of the showing required to establish that an individual was "regarded as" substantially limited in a major life activity. The connection between the medication list and the rejected applicants is that J.B. Hunt created the list and used it to reject the applicants because it thought the risk of the side effects mentioned was significant enough to disqualify the applicants. In doing so, it treated them as if they were substantially limited in performing a class of truck driving jobs or a broad range of safety-sensitive jobs. The fact that J.B. Hunt may not have believed that any particular applicant actually experienced side effects of the medications he was taking does not preclude a finding that the company viewed the risk of side effects as substantially limiting in itself. An impairment that does not directly preclude an individual from engaging in an activity may nonetheless substantially limit the activity if it makes it medically inadvisable. For example, a person with a back impairment who is physically capable of lifting a heavy object may be substantially limited in lifting because his physician restricts his lifting out of concern that he will injure himself. See, e.g., Taylor v. United States Postal Serv., 946 F.2d 1214, 1218 (6th Cir. 1991)(employer that denied plaintiff with degenerative back and knee condition a position as a distribution clerk based on employer's perception that plaintiff was at risk for injury regarded plaintiff as disabled); Cook v. State of Rhode Island, Dep't of Mental Health, Retardation, and Hosps., 10 F.3d 17, 20- 21, 25 (1st Cir. 1993) (employer treated employee as disabled by refusing to hire her based on its belief that her morbid obesity would put her at risk of developing serious ailments); 29 C.F.R. Pt. 1630, App. § 1630.2(l) (employer violates ADA when it reassigns employee with controlled high blood pressure because employer fears, wrongly, that the employee may have a heart attack). J.B. Hunt's use of the DRL and Medical Guidelines demonstrates that it believed that individuals taking the forbidden medications were susceptible to dangerous side effects, and that it considered applicants taking such medications unfit for any OTR truck driving job with the company due to the need that drivers stay conscious and alert while driving tractor- trailers. J.B. Hunt acknowledged that it refused to consider applicants for OTR drivers because it believed that the risk of side effects from their medications disqualified them from safely driving a truck. J.B. Hunt argued below, however, that it did not "regard" them as unable to perform a class or range of jobs - - but only the specific position of an OTR driver for J.B. Hunt. Nevertheless, in explaining why it believes that persons taking disallowed medications cannot safely drive J.B. Hunt's trucks, the company did not point to any evidence that its driver positions are unique or even unusual. J.B. Hunt's attorney argued that "[t]here are greater safety concerns associated with the irregular routes and schedules of the truckload carrier operation engaged in by J.B. Hunt, and, as a result, an OTR driver of a commercial motor vehicle must be highly skilled, alert, proficient and able to perform his driving tasks safely on the public highway." IIIJA713 (J.B. Hunt Statement of Material Facts ¶ 10). However, there is no evidence in the record to suggest that the OTR truck driving jobs in question are substantially different from other truck driving jobs. Instead, J.B. Hunt's argument is based on factors that are common to all OTR truck driver positions. J.B. Hunt also argued below that, without regard to how the company treated applicants or what it said to them, it cannot be found to regard the rejected applicants as substantially limited in working because company officials now assert that they believe the rejected applicants could work for other trucking companies with more lenient safety standards. R. 59 (J.B. Hunt Br. at 17). Such self-serving assertions by company officials that they subjectively believe that an applicant they deem unfit for their jobs can perform similar work for other employers must be tested by a fact-finder, asking whether there is actually something different about the job responsibilities or working conditions which would mean that the belief itself would not be broadly disqualifying. See Cook, 10 F.3d at 26 ("[i]f the rationale proffered by an employer in the context of a single refusal to hire adequately evinces that the employer treats a particular condition as a disqualifier for a wide range of employment opportunities, proof of a far-flung pattern of rejection may not be necessary"). The Commission was not required to provide affirmative evidence that J.B. Hunt officials consciously reflected on the implications of their perceptions for the applicants' overall employment prospects. The Commission's guidelines explain: An employer may claim that it does not perceive an individual as having an impairment that substantially limits a major life activity but nonetheless may treat the individual as having such an impairment. In such a case, actions may speak louder than words. For example, an employer may assert that it does not regard an individual as substantially limited in working but nonetheless may treat an individual as having an impairment that disqualifies him or her from a class of jobs or a broad range of jobs in various classes. The employer in that case regards the individual as substantially limited in the major life activity of working. EEOC Guidance (March 15, 1995) reprinted in BNA's Americans with Disabilities Act Manual, 70:1150 at 88. See also Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1229 n.6 (9th Cir. 2001) (direct evidence of state of mind is not required to prove that an employer regarded an employee as disabled). A requirement of affirmative evidence of an employer's subjective belief would frustrate enforcement of the ADA because employers seldom leave direct evidence of their mental processes, particularly where their beliefs could subject them to liability for employment discrimination. Cf. United States Postal Serv. v. Aikens, 460 U.S. 711, 716 (1983) ("[t]here will seldom be ‘eyewitness' testimony as to the employer's mental processes") (Title VII); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994)(victim of discrimination is seldom able to prove his claim by direct evidence, and is usually constrained to rely on circumstantial evidence)(Title VII). Moreover, in this case there is ample evidence, in the form of testimony, notes, and statements by J.B. Hunt's interviewers and medical advisors, that when they rejected applicants based on medication usage, they did not regard them as limited only in their ability to drive for J.B. Hunt. Most importantly, the DRL itself warns against driving "motor vehicles" generally, not just J.B. Hunt's trucks, while taking medications ascribed the restriction "Unsafe Affects" [sic]. See, e.g., IJA104, 105 (DRL at 1, 2). The record also contains comments made by J.B. Hunt's agents during the medical certification process stating in general terms that rejected applicants were not qualified for truck driving as a profession, lifestyle, or line of work. For example, Dr. Cooper, J.B. Hunt's medical consultant, testified regarding John Carnevale, who was rejected because he took Flagyl for Crohn's disease, that he believed "it may not actually be in this patient's best interest to pursue this profession" because "truckers are gone for long periods of time." IIIJA742-43 (Cooper Dep. at 58-59); see also IIIJA738 (Review of Medical Records) ("I didn't think it would be in this patient's best interest to pursue this line of work because of the lack of restroom facilities and not being very well rested"). Other J.B. Hunt employees made similar statements about other rejected applicants. IIJA301 (Medical Advisor Checklist Notes for Lamar Harris) ("[Z]oloft is considered unsafe for driving. . . . he would most likely have difficulty functioning in the lifestyle of a trucker"); IIJA402 (Investigator Checklist for Joyce Benson)(Dr. Cooper indicated that Benson's "problems with sleep and concentration under stress are not very compatible with the lifestyle expected of a driver"). These comments constitute evidence from which a fact finder could conclude that J.B. Hunt perceived the rejected applicants as precluded from working in their chosen profession of truck driving. See McKenzie v. Dovala, 242 F.3d 967, 971 (10th Cir. 2001) (statement that plaintiff "would be better off in some other field" supported finding that employer regarded her as substantially limited in working); Best, 107 F.3d at 548 (statement that plaintiff "should consider another line of work" supported finding that employer regarded plaintiff as substantially limited in ability to work as a truck driver). The record also contains numerous statements by J.B. Hunt officials reflecting a belief that rejected applicants were broadly limited in their ability to drive commercial vehicles. For example, Dr. Cooper testified generally that he believed – incorrectly it turns out – that "some of [the medications on the DRL] are on the DOT's non-approved list" and "you just can't use them and drive is the way I've been told." IIJA469 (Cooper Dep. at 27). Similarly, J.B. Hunt's interviewers and medical advisors told some rejected applicants that they could not drive a truck or commercial vehicle, or could not drive at all. For example, applicant Joseph Lisa stated that he was told by the J.B. Hunt interviewer that he would "never drive for anybody" because he was taking Coumadin. IJA99-100 (Lisa Decl. ¶ 7). Jane Beck- Manning, who was taking Paxil at the time she applied to J.B. Hunt, was told by a J.B. Hunt interviewer that "as far as she knew, it was illegal for a driver to drive while on this medication." IIJA449 (Beck-Manning Dep. at 60). Other applicants encountered a similar response. See IIJA291 (Investigator Checklist for James Ferguson)(applicant told by interviewer that "he cannot take Isodril and drive"); IIJA296 (Investigator Checklist for John Goch) (interviewer "told applicant that the prescription that he is taking has unsafe affects [sic] – for driving jobs"); IJA181 (Investigator Checklist for Judith Griggers)(interviewer told applicant she "could not be on Prozac and drive"); IJA203 (Investigator Checklist for Thomas Mitchell)(interviewer told applicant that "he could not drive while on [an anti-depressant]"); IJA221 (Medical Advisor Checklist Notes for Patricia Sellars) (medical advisor "told applicant that she cannot be on Desyrel and drive"); IIJA441 (Adair Dep. at 80)(applicant told "it's illegal to drive a truck with that [medication], a commercial vehicle") IIIJA710 (Checklist Notes for David Gorgas) ("I did tell applicant he cannot take Dilantin and drive a [tractor- trailer]"). In addition, the notes of interviewers and medical advisors express a belief that rejected applicants' medication usage disqualified them generally from commercial driving. See IJA205 (Medical Advisor notes for Beverly Odom)("[W]elbutrin is an antidepressant and the side effects are considered unsafe for driving a tractor-trailer. She cannot drive as long as she is taking this medication."); IIJA282 (Investigator Checklist for Charles Cundiff) ("Litane and Welburtin [sic] . . . are not approved for driving"). This evidence, coupled with J.B. Hunt's action in disqualifying applicants from its driver positions based simply on their use of medications, is more than sufficient to support an inference that J.B. Hunt regarded the applicants as unable to perform any truck driving job. See Best, 107 F.3d at 548 (statements such as "he felt Best was not safe and should not be driving" raised a genuine issue of fact on the impact of plaintiff's injury on the major life activity of working). A jury could also infer that, if J.B. Hunt believed the applicants were too dangerous to drive a truck, they were also disqualified from a broad range of safety-sensitive jobs requiring equivalent clear vision and alertness. Thus, there is at the least a triable issue of fact with respect to whether J.B. Hunt regarded the rejected applicants as substantially limited in working. CONCLUSION For the reasons stated above, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ___________________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 August 17, 2001 CERTIFICATE OF COMPLIANCE Pursuant to 2d Cir. R. 32(b), I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). The brief has been prepared in monospaced (nonproportionally spaced) typeface using Corel Word Perfect 8, Courier New 12-point font, and contains 10,176 words. See FRAP 29(d) & 32(a)(5). _________________________ Julie L. Gantz CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been mailed first class, postage prepaid, to the following counsel of record: James H. Hanson SCOPELITIS, GARVIN, LIGHT & HANSON 10 West Market Street Suite 1500 Indianapolis, IN 46204-2968 ____________________________ Julie L. Gantz, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 August 17, 2001 ADDENDUM King v. Yellow Freight System, Inc., No. 4:99CV1281, 2000 U.S. Dist. LEXIS 20062 (E.D. Mo. Nov. 20, 20001) Shiplett v. Amtrak, 182 F.3d 918, 1999 WL 435169 (6th Cir. June 17, 1999) Stensbrud v. Szabo Contracting Co., Inc., No. 98C878, 1999 WL 5921110 (N.D. Ill. Aug. 2, 1999) Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 1998-99 473-76 (1998) Dictionary of Occupational Titles 84 (4th ed. 1991) Office of Management & Budget, Standard Occupational Classification Manual 327 (1980 ed.) & 220 (2000 ed.) EEOC Compliance Manual § 902.8, ¶ 6888, 5324-5327 (1995) EEOC Guidance (March 15, 1995), reprinted in BNA's Americans with Disabilities Act Manual, 70:1149-1150 ******************************************************************* <> <1> The Commission is not seeking relief for applicants rejected because they used medications ascribed the restriction “Rule Out Side Affects,” R. 47 (EEOC Summary Judgment Br. at 3 n.3), because those applicants were given an individualized assessment. <2> The Drug Enforcement Administration designates many medications as Schedule I through V depending on the type and quantity of the medication. See 21 C.F.R. §§ 1308.11-1308.15. <3> The DRL was not updated to reflect that Coumadin is not an automatic disqualifier. IIIJA757 (Hegmann Dep. at 57). <4> There is evidence that J.B. Hunt’s interviewers dispensed incorrect medical information to some applicants. For example, one interviewer inaccurately told an applicant that the medication he was taking – Midrin – was a narcotic and that he was not allowed to take it or possess the drug while operating a commercial vehicle. IIIJA534 (Moore Dep. at 89). <5> The court declined to decide whether J.B. Hunt’s medications policy is a legitimate qualification standard under the ADA because it found the Commission failed to establish a prima facie case of disability discrimination and thus, according to the court, “J.B. Hunt need not rely on an affirmative defense in this case to prevail.” IJA42 (Order at 30 n.18). <6> Under the ADA, a physical or mental impairment is defined as “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine” or “[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 29 C.F.R. § 1630(h). It is undisputed that the rejected applicants were taking medications prescribed by their physicians for a wide range of medical conditions, including arthritis, depression, and hypertension. See, e.g., IJA93 (Carr Decl. ¶ 8); IJA98 (Eury Decl. ¶ 8); IJA94 (Cullum Decl. ¶ 5). Such medical conditions qualify as impairments under this definition, even if they are controlled with medication. The issue on appeal is whether J.B. Hunt regarded the impairments as substantially limiting. An individual may still be disabled under the ADA notwithstanding his use of a corrective device. See Sutton, 527 U.S. at 482 (“if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures -- both positive and negative -- must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity”). <7> A disability is also defined to include “a record of such an impairment.” 42 U.S.C. § 12102(2)(B). The district court rejected the Commission’s argument that the rejected applicants were disabled under this provision as well. IJA48-49 (Order at 36-37). We do not challenge that aspect of the court’s ruling on appeal.