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 _________________________________________________________ PETITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC __________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ BARBARA L. SLOAN Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES ii RULE 35(b) STATEMENT 1 STATEMENT OF THE ISSUE 1 BACKGROUND 2 PANEL DECISION 4 ARGUMENT THE MAJORITY DECISION EVISCERATES THE ADA'S PROTECTION OF INDIVIDUALS REGARDED AS SUBSTANTIALLY LIMITED IN WORKING BY DENYING THE PLAINTIFF THE BENEFIT OF REASONABLE INFERENCES THAT CAN BE DRAWN FROM AN EMPLOYER'S TREATMENT OF REJECTED APPLICANTS. 6 CONCLUSION 15 CERTIFICATE OF SERVICE ADDENDUM: PANEL DECISION TABLE OF AUTHORITIES CASES Bartlett v. N.Y. State Bd of Law Exam'rs, 226 F.3d 69 (2d Cir. 2000) 9 Baulos v. Roadway Express, 139 F.3d 1147 (7th Cir. 1998) 9 Cook v. State of R.I. Department of MHRH, 10 F.3d 17 (1st Cir. 1993) 10 EEOC v. Joslyn Mfg. Co., No. 95C4956, 1996 WL 400037 (N.D. Ill. July 15, 1996) 8 Giordano v. City of New York, 274 F.3d 740 (2d Cir. 2001) 13 Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222 (9th Cir. 2001) 11 Murphy v. UPS, 527 U.S. 516 (1999) 1, 7 Partlow v. Runyon, 826 F. Supp. 40 (D.N.H. 1993) 10 MISCELLANEOUS EEOC Guidance on the Definition of Disability (March 15, 1995), reprinted in BNA's Americans with Disabilities Act Manual, 70:1150 10 RULE 35(b) STATEMENT This case presents an issue of exceptional importance. The rationale adopted by the panel majority would insulate an employer from liability under the Americans with Disabilities Act (“ADA”) for any claim that it regarded rejected applicants as substantially limited in working unless the employer affirmatively acknowledges that it considered applicants' suitability for jobs other than the one for which they were rejected. This is true, according to the majority, even where, as here, there is evidence that the limitations the employer perceived the applicants as having would similarly preclude them from performing a class or broad range of jobs and even though the employer has proffered no evidence that the job is unique. The legal standard the majority applied is inconsistent with the one the Supreme Court applied in Murphy v. UPS, 527 U.S. 516 (1999). Moreover, since employers seldom consciously look beyond the specific job for which they are hiring, this ruling eviscerates the ADA's ban on discrimination based on stereotypical views of disabilities. We therefore urge this Court to rehear the case, en banc if necessary, to restore the ADA's protection of individuals perceived as substantially limited in working. STATEMENT OF THE ISSUE Whether a court may find that an employer regarded rejected applicants as substantially limited in working based on evidence that the employer viewed them in a way that would limit their ability to perform a class or broad range of jobs even if the employer asserts that it only considered the applicants' ability to perform the specific job for which it was hiring. BACKGROUND This case, as Judge Sotomayor recognized in her dissent, is “quite straightforward.” Based on the Drug Review List or “DRL,” “a list of drugs and their potential side effects [such as drowsiness, abnormal vision, inability to concentrate and hallucinations] compiled by David Whiteside, a Hunt employee with no medical training, and a Medical Guidelines policy developed by Michael Gray, a former Red Lobster cashier with no medical training who was, nevertheless, Hunt's Medical Advisor, Hunt determined that certain applicants were unfit to be truck drivers.”<1> EEOC v. J.B. Hunt Transp., Dissent at 1. The EEOC brought an enforcement action alleging that the company's practice of rejecting applicants because of the medications they were taking, without regard to whether applicants could in fact drive safely, violated the ADA. Hunt moved for summary judgment, arguing inter alia that it did not regard rejected applicants as disabled but merely believed that they were not qualified to work as over-the-road (“OTR”) truck drivers for Hunt. In response, EEOC presented “substantial evidence that Hunt believed that [rejected applicants] were . . . incapable of performing a broad class of jobs that fall under the classification of ‘truck driving.'” Id. The DRL itself warned against driving “motor vehicles” generally, not just Hunt's trucks, while taking medications ascribed the restriction “Unsafe [E]ffects.” See, e.g., IJA104, 105. In addition, as Judge Sotomayor noted, “[n]umerous drugs were listed on the DRL as ‘Not Permitted,' reflecting a belief that the applicant was prohibited by DOT regulations from driving a commercial vehicle while taking that particular medication.” Dissent at 4-5. Finally, the record contains many comments made by Hunt's interviewers and medical advisors during the medical certification process stating in general terms that, due to a proscribed medication or underlying medical condition, rejected applicants were not qualified for truck driving as a profession, lifestyle, or line of work.<2> Despite this evidence, however, the district court granted Hunt's motion, holding that the rejected applicants were not protected by the ADA because they were not disabled and Hunt did not regard them as disabled. The court found insufficient evidence that Hunt regarded the applicants as unable to perform jobs other than the particular OTR truck driver jobs for which they applied. IJA15-16, 38. PANEL DECISION On appeal, a divided panel of this Court affirmed. The panel majority held that “to show that Hunt perceived applicants rejected under the DRL as substantially limited in [working], the EEOC must show that Hunt viewed such applicants as limited from a broader . . . class of jobs than merely OTR positions at Hunt.” Slip op. at 13. Applying that standard, the majority credited Hunt's assurances that it perceived rejected applicants as unqualified only to drive for Hunt – that is, to “operate vehicles weighing approximately 80,000 pounds over irregular routes under particularly difficult work conditions, including sleep deprivation, irregular work and rest cycles, inclement weather, long driving periods, long layovers, irregular meal schedules, tight delivery schedules, en route delays, night driving, accumulated fatigue, stress, and extended periods of loud noise and vibrations.” Id. at 3. Despite a dearth of evidence that Hunt's jobs were unique or even unusual, the majority noted: “According to Hunt, the large vehicle size and extreme driving conditions faced by its OTR drivers warrant heightened safety evaluations of those OTR drivers.” Id. at 3-4. Without deciding whether “truck-driving in general” is a class of jobs within the meaning of the ADA (id. at 13), the majority held that “[d]riving freight-carrying tractor-trailer trucks over long distances for extended periods of time is neither a ‘class of jobs' nor a ‘broad range of jobs.'” Id. at 11. The majority found no evidence that “Hunt perceived the applicants as more broadly limited.” Id. at 14. The majority concluded that the statements by Hunt's interviewers and medical advisors did not “support a finding that Hunt viewed the driving limitation as extending beyond Hunt.” Id. at 15. While “a few” comments could be “more broadly interpreted,” the majority concluded, they were made by “people other than the ultimate hiring authorities” and thus were “not sufficient to indicate that Hunt thought the applicants were more broadly limited given the heightened nature of Hunt's standards and the fact that Hunt did hire some applicants on DRL medications.” Id. In dissent, Judge Sotomayor stated that the “EEOC provided substantial evidence that Hunt believed that [applicants] were unfit to drive a truck, or, for that matter, to drive at all and were incapable of performing the broad class of jobs that fall under the classification ‘truck driving.'” Dissent at 1.<3> In the dissent's view, the majority's assertion that Hunt rejected the applicants only because it perceived them as unfit for the particular type of long-haul truck driving required by its jobs is “inapposite.” Id. at 4. “Whether long haul trucking is, in fact, different from other types of truck driving is not the central issue in this appeal; Hunt's perception of the applicants as substantially limited in their ability to drive trucks, without further limitation to long haul truck driving, is the central issue.” Id. According to the dissent, the majority “[i]gnor[ed] significant evidence that Hunt perceived the applicants as more broadly limited” and refuses to “credit a broad, but reasonable, interpretation” of the comments by Hunt employees on a motion for summary judgment. Id. at 6. Since “Hunt's reviewers stated that one applicant would ‘never drive for anybody,' and made similar statements about many other applicants, it is difficult to imagine a clearer statement that the reviewers intended to say that the applicants were, in fact, substantially limited in their ability to work as a truck driver for any company.” Id. at 6-7. While the reviewers were not “ultimate decision makers,” the dissent reasoned, “a factfinder reasonably could impute these statements to Hunt” particularly because Hunt itself never argued otherwise. Id. at 7. ARGUMENT THE MAJORITY DECISION EVISCERATES THE ADA'S PROTECTION OF INDIVIDUALS REGARDED AS SUBSTANTIALLY LIMITED IN WORKING BY DENYING THE PLAINTIFF THE BENEFIT OF REASONABLE INFERENCES THAT CAN BE DRAWN FROM AN EMPLOYER'S TREATMENT OF REJECTED APPLICANTS. The panel majority held, in effect, that ADA plaintiffs cannot show that they were regarded as substantially limited in working without affirmative evidence that high-ranking company officials consciously considered rejected applicants' suitability for jobs other than the one for which the company was hiring. This is true even if the conditions applicants were perceived as having would substantially limit their ability to perform a broad class of jobs, such as commercial truck driving. In reaching this decision, the majority made two serious errors, both warranting correction by the Court en banc. First, the legal standard the majority applied is inconsistent with the one the Supreme Court set forth in Murphy v. UPS, 527 U.S. 516 (1999), and would effectively preclude most ADA plaintiffs in this Circuit from ever showing that they were regarded as substantially limited in working. Second, the majority misapplied even this flawed legal standard on summary judgment, accepting as true Hunt's unsupported factual assertions and ignoring substantial evidence to the contrary. a. In Murphy v. UPS, the Supreme Court held that a mechanic who, because of high blood pressure, was believed to be ineligible for DOT truck driver certification was not regarded as substantially limited in working. The Court reasoned that, since most mechanic jobs do not require DOT certification, the fact that plaintiff was regarded as ineligible for such certification was insufficient to show that he was regarded as unable to perform a broad class of jobs. 527 U.S. at 524. In reaching this decision, the Court did not ask whether UPS subjectively believed that plaintiff was unqualified to be a mechanic only for UPS or for other employers as well. Rather, the Court considered only whether the limitation, as perceived, would preclude him from working as a mechanic, a broad class of jobs. Id. Under Murphy, therefore, applicants are covered by the ADA if the limiting condition the employer regards them as having would substantially limit the ability to do a broad class of jobs. Applying the standard from Murphy, the evidence here would support a finding that if the applicants had the limitations Hunt perceived them as having they would be substantially limited in working. It is undisputed that applicants were rejected based on their use of certain prescription medications out of concern for potential side effects – e.g., drowsiness – of the medication or the underlying medical conditions associated with them. A factfinder could find that, if the applicants were susceptible to the dangerous side effects from their medications which Hunt believed rendered them unfit for its jobs, for example, they would be similarly unfit for all or most truck driving jobs or jobs requiring the same degree of consistent clear vision and alertness. This is particularly true because there is no evidence that Hunt's truck driver positions were unique or even unusual.<4> As Judge Sotomayor recognized, truck driving is a broad class of jobs. See Dissent at 3-4.<5> Thus, under Murphy, there is at least a factual question whether applicants Hunt rejected on safety grounds are covered by the ADA. The panel majority, however, did not even purport to follow the Supreme Court's lead in Murphy. Instead, adhering to its own standard, the majority required the EEOC to show that Hunt consciously considered whether rejected applicants were limited from “a broader . . . class of jobs than merely OTR jobs at Hunt.” Slip op. at 13. Under that standard, the majority affirmed summary judgment, finding the record “only shows that Hunt saw the applicants as unfit to perform a job for which they were seeking applicants: long distance, freight-carrying, tractor-trailer driving.” Id. at 13-14. The standard adopted by the panel majority allows employers to insulate themselves from claims that they regarded applicants as substantially limited in working merely by asserting that they considered only applicants' suitability for the specific, narrowly-defined job for which they were hiring. This effectively eviscerates the ADA's protection of persons regarded as substantially limited in working. Employers rarely consciously consider applicants' suitability for jobs other than the one for which they are hiring. See Partlow v. Runyon, 826 F. Supp. 40, 44 (D.N.H. 1993) (noting that “most employers would easily escape the requirements of the Rehabilitation Act” if issue were simply whether employer considered applicant's suitability only for specific job). But denying applicants even a single job due solely to the perception that they suffer from a physical limitation that would also keep them from qualifying for a broad class of jobs can constitute treating applicants as if their condition substantially limits the major life activity of working. See Cook v. State of R.I. Dep't of MHRH, 10 F.3d 17, 26 (1st Cir. 1993); see also Partlow, 826 F. Supp. at 44 (test is “whether the impairment, as perceived, would affect the individual's ability to find work across the spectrum of same or similar jobs,” not “whether the employer's rejection of the applicant was due to a good faith, narrowly-based decision that the applicant's characteristics did not match specific job requirements”); EEOC Guidance on the Definition of Disability (March 15, 1995), reprinted in BNA's Americans with Disabilities Act Manual, 70:1150 (if employer asserts that it does not regard individual as substantially limited in working but nonetheless treats him as having an impairment that disqualifies him from a class or broad range of jobs, employer regards individual as substantially limited in the major life activity of working). Moreover, there is no need for affirmative evidence of an employer's subjective belief. See 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). On the contrary, as Murphy reflects, a factfinder may infer coverage from the fact that plaintiffs were perceived as having a condition that, if true, would substantially limit their ability to perform a broad class of jobs. Any other requirement 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. We therefore urge this Court to rehear this case, en banc if necessary, and hold, consistent with Murphy but contrary to the majority's decision, that, to establish coverage, an ADA plaintiff need not proffer affirmative evidence that the employer consciously reflected on rejected applicants' overall employment prospects. Where, as here, the evidence would support a finding that the condition(s) the employer perceived applicants as having would substantially limit their ability to perform a broad class of jobs, summary judgment on coverage grounds is inappropriate. b. Even if affirmative evidence that Hunt perceived rejected applicants as “more broadly limited” were necessary to surmount summary judgment, the record here contains such evidence.<6> As Judge Sotomayor recognized, the EEOC proffered “significant evidence” in the form of testimony, notes, and statements by Hunt's employees and consultants that when Hunt rejected applicants based on medication usage, it did not regard them as limited only in their ability to drive for Hunt but rather as “substantially limited in the major life activity of working as truck drivers in general.” Dissent at 1-2. The panel majority was able to affirm the judgment below only by ignoring the summary judgment standard, drawing inferences in Hunt's favor and weighing the evidence as if it were the factfinder. See, e.g., Dissent at 4 (faulting the majority for “misrepresent[ing] the record by asserting that the evidence ‘does not indicate that Hunt perceived the applicants as more broadly limited'” when, in fact, “significant evidence” shows “Hunt believed that the applicants were unfit to drive trucks”). For example, the majority simply ignored the fact that the DRL itself warns against driving “motor vehicles” generally, not just Hunt's trucks, while taking medications assigned the restriction “Unsafe Effects” (see, e.g., IJA104, 105), and that “[n]umerous drugs were listed on the DRL as ‘Not Permitted,' reflecting a belief that the applicant was prohibited by DOT regulations from driving a commercial vehicle while taking that particular medication.”<7> Dissent at 4-5. Similarly, the majority improperly credited Hunt's explanation that its employees' comments – which on their face were not limited to Hunt's jobs – nevertheless referred only to Hunt's truck driving jobs. As Judge Sotomayor noted, “A factfinder is certainly allowed to determine whether the statement that an applicant would ‘never drive for anybody' implicitly refers only to jobs at Hunt; it is not, however, this Court's job to do so.” Id. at 7. A jury viewing these comments could instead reject Hunt's explanation and accept the comments as they appear – as general warnings about driving, driving trucks, or the truck driver lifestyle. The majority also minimized these comments based on its view that the speakers were “not the ultimate hiring authorities.” Slip op. at 15. However, the interviewers who made the comments in question conveyed to the applicants that, based on Hunt's DRL or medical guidelines, they would not be hired at Hunt. Because the interviewers were the last contact and offered a definitive statement about the applicants' job prospects with Hunt, as a practical matter, they were decisionmakers. A jury could infer from these comments an overall view that the applicants were unfit for truck driving positions extending beyond Hunt's. The majority's contrary characterization of this evidence was improper given the posture of the case. See Dissent at 7 (“The majority asserts that because Hunt's reviewers were not the ultimate decision makers, the comments ‘simply are not sufficient to indicate that Hunt thought the applicants were more broadly limited.' Again, this is a matter for the factfinder to decide.”). Finally, the majority improperly discounted comments of Hunt's medical consultant, Dr. Cooper, who opined that some of the applicants were ill-suited for the “truck driver lifestyle” because of their medical conditions. While Hunt argued that the doctor's comments should not be imputed to it, evidence that the company relied on his advice (see, e.g., IIJA419; IIJA423) and disqualified some applicants “per Dr. Cooper” revealed “a direct link between Dr. Cooper's opinions regarding applicants and Hunt's view of the applicants as disabled.” Dissent at 7. In short, Hunt's blanket disqualification of 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, would support a finding that Hunt regarded the rejected applicants as substantially limited in the major life activity of working. See Dissent at 5 n.2 (“Hunt's policy simply assumes, without justification, that these individuals are unfit to drive trucks.”). The standard announced by the majority creates an insurmountable bar to any employee pursuing a “regarded as substantially limited in working” theory of liability under the ADA. Once an employer states it was only thinking of its particular jobs, nothing else in the record matters. Because of the serious adverse consequences this decision would have on ADA enforcement, this Court should rehear this case en banc and reverse. CONCLUSION For the foregoing reasons, the EEOC requests rehearing by the panel or, in the alternative, en banc review of the panel decision. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ____________________________ BARBARA L. SLOAN JULIE L. GANTZ Attorneys U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Washington, D.C. 20507 (202) 663-4718 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been overnight mailed by Federal Express to: James H. Hanson SCOPELITIS, GARVIN, LIGHT & HANSON 10 West Market Street, Suite 1500 Indianapolis, IN 46204-2968 ____________________________ Julie L. Gantz, Esq. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 March 21, 2003 ADDENDUM 1 The DRL classified 836 drugs into five categories of “Restriction,” reflecting Whiteside's assessment of the level of risk each drug posed to drivers: (1) “Not Permitted”; (2) “Unsafe [E]ffects”; (3) “Heart Condition”; (4) “Disqual[ifying] Cond[ition]”; and (5)“Rule Out Side [E]ffects”. IJA104-40. For some drugs, Whiteside indicated in the “Comment” column, “WARNING on driving motor vehicle.” IIIJA654, 658-59. 2 A number of these comments are set out in Judge Sotomayor's dissent. Dissent at 5-7 (noting, e.g., that Hunt's physician consultant did not believe it was in applicant's “best interest” to pursue trucking “profession,” and numerous other applicants were told their medications made it unsafe for them to drive a truck or drive in general). 3 The dissent concluded that truck driving is a class of jobs. Based on evidence that truck drivers inter alia must have specialized training and licensing, Judge Sotomayor would find that “truck driving is a general field of employment rather than a specific position.” Id. at 3-4. 4 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. However, Hunt's characterization of its safety concerns as “greater” than other trucker jobs has no support in the record and is based on factors that are common to all OTR truck driver positions. Cf. EEOC v. Joslyn Mfg. Co., No. 95C4956, 1996 WL 400037, at *7 (N.D. Ill. July 15, 1996) (“Where an employer fails to hire a job applicant based on a perceived impairment that forecloses a broad range of jobs in an industry, or even within a large company, the employer regards that applicant as disabled under the ADA.”). 5 “The EEOC has proffered evidence that the members of the plaintiff class have undergone specialized driver training, earned commercial drivers' licenses, passed road tests and received medical certifications pursuant to DOT regulations. The set of jobs that call for these qualifications includes driving various types of small and large trucks, including tractor-trailers, moving trucks, and cargo vans.” Other courts have also concluded that truck driving is a class of jobs. See, e.g., Baulos v. Roadway Express, 139 F.3d 1147, 1152 (7th Cir. 1998) (sleeper truck driver is subclass of jobs within class of truck driving jobs). Cf. Bartlett v. N.Y. State Bd of Law Exam'rs, 226 F.3d 69, 83 (2d Cir. 2000) (“jobs utilizing legal training” constitutes class of jobs). 6 As Judge Sotomayor recognized, the majority's statement that Hunt's policy should not be imputed to other companies in deciding whether applicants were regarded as disabled (per Sutton, 527 U.S. at 493) misses the point. “It is Hunt's explicit statement that it believed applicants to be unfit to drive a truck that supports Hunt's perception of these individuals as substantially limited in their ability to drive a truck; no potential imputation is required.” Dissent at 8. 7 This evidence also distinguishes this case from Giordano v. City of New York, 274 F.3d 740 (2d Cir. 2001), on which the panel majority relied. In Giordano, the evidence showed only that the defendant rejected the plaintiff because of concern that his use of Coumadin made him unfit for jobs “that involve a substantial risk of physical confrontation.” 274 F. 3d at 749. Because the class of jobs at issue there – “investigative or security jobs” (id.) – included many jobs which did not present a substantial risk of physical confrontation, this Court concluded that the evidence would not support a finding that the defendant regarded plaintiff as substantially limited in working. Here, by contrast, there is evidence that Hunt viewed the rejected applicants as unfit to drive trucks. Since driving trucks is an essential element of all the jobs in the class of jobs at issue here, Giordano is not an obstacle to a finding of coverage in this case.