No. 06-3108 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. SCHNEIDER NATIONAL, INC., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court For the Eastern District of Wisconsin, No. 04-875 The Honorable William C. Griesbach ____________________________________________ BRIEF AND REQUIRED SHORT APPENDIX OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________ RONALD S. COOPER DORI K. BERNSTEIN General Counsel Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 (202) 663-4734 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . .2 DISTRICT COURT DECISION. . . . . . . . . . . . . . . . . . . . 14 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 17 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 19 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Schneider's Perception that Jerome Hoefner, an Otherwise Qualified Commercial Driver, Cannot Hold Any Position Driving for the Company Because His Medical Diagnosis Poses an Unacceptable Safety Risk Is Sufficient to Demonstrate that It Regards Him as Having a Disability Within the Meaning of the ADA. . . . . . . 19 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 43 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 44 CIRCUIT RULE 30(d) STATEMENT . . . . . . . . . . . . . . . . . 45 ATTACHED REQUIRED SHORT APPENDIX CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page CASES Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) . . . . . . . . . . . . . . . . . . . . 21 Baulos v. Roadway Express, 139 F.3d 1147 (7th Cir. 1998) . . . . . . . . . . . 25, 28, 29 Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997). . . . 16, 23, 26, 27, 28, 30, 36 Black v. Roadway Express, 297 F.3d 445 (6th Cir. 2002). . . . . . . . . . 25, 28, 36, 37 DePaoli v. Abbott Laboratories, 140 F.3d 668 (7th Cir. 1998). . . . . . 21, 22, 23, 29, 30, 36 EEOC v. J.B. Hunt Transport, 321 F.3d 69 (2d Cir. 2003). . . . . . . . . . . 16, 24, 25, 29 Kupstas v. City of Greenwood, 398 F.3d 609 (7th Cir. 2005). . . . . . . . . . . . 20, 21, 30 Marinelli v. City of Erie, Pennsylvania, 216 F.3d 354 (3d Cir. 2000) . . . . . . . . . . . . . . . . 25 Moore v. J.B. Hunt Transport, 221 F.3d 944 (7th Cir. 2000). . . . . . . . . . 21, 25, 30, 31 Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) . . . . . . . . . . . . . . . . . . 21, 29 Nese v. Julian Nordic Constr. Co., 405 F.3d 638 (7th Cir. 2005). . . . . . . . . . . . . . . . 21 Reeves v. Sanderson Plumbing Co., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . 42 Page School Board of Nassau County v. Arline, 480 U.S. 273 (1987) . . . . . . . . . . . . . . . . . . . . 32 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) . . . . . . . . . . . . 20, 21, 29, 30, 32 Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002) . . . . . . . . . . . . . . . . . . . . 21 Webb v. Clyde L. Choate Mental Health and Development Center, 230 F.3d 991 (7th Cir. 2000). . . . . . . . . . . . 19, 21, 30 STATUTES 28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . .1 Civil Rights Act of 1991, 42 U.S.C. § 1981a. . . . . . . . . . .1 Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et. seq. . . . . . . . . . . . . . . . . .2 42 U.S.C. § 12102(2). . . . . . . . . . . . . . . . . . 19, 20 42 U.S.C. § 12102(2)(A) . . . . . . . . . . . . . . . . . . 36 42 U.S.C. § 12102(2)(C) . . . . . . . . . . . . . . . . . . 31 42 U.S.C. § 12111(3). . . . . . . . . . . . . . . . . . . . 37 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . 19 42 U.S.C. § 12112(b)(6) . . . . . . . . . . . . . . . . . . 37 42 U.S.C. § 12113(a). . . . . . . . . . . . . . . . . . . . 37 42 U.S.C. § 12113(b). . . . . . . . . . . . . . . . . . 37, 39 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . . .1 Page Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-5(f)(3) . . . . . . . . . . . . . . . . . .1 49 U.S.C. § 31136(a)(3). . . . . . . . . . . . . . . . . . . . .5 RULES AND REGULATIONS Fed.R.App.P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . 1, 2 Fed.R.App.P. Rule 32(a)(7) . . . . . . . . . . . . . . . . . . 44 Fed.R.Civ.P. 56(c) . . . . . . . . . . . . . . . . . . . . . . 19 Circuit Rule 30(a) . . . . . . . . . . . . . . . . . . . . . . 45 Circuit Rule 30(b) . . . . . . . . . . . . . . . . . . . . . . 45 Circuit Rule 30(d) . . . . . . . . . . . . . . . . . . . . . . 45 29 C.F.R. § 1630.2(i). . . . . . . . . . . . . . . . . . . . . 20 29 C.F.R. § 1630.2(j)(3)(i). . . . . . . . . . . . 21, 22, 24, 36 29 C.F.R. § 1630.2(j)(3)(ii) . . . . . . . . . . . . . . . . . 22 29 C.F.R. § 1630.15. . . . . . . . . . . . . . . . . . . . . . 39 49 C.F.R. § 383.1(a) . . . . . . . . . . . . . . . . . . . . . .5 49 C.F.R. § 383.1(b)(6). . . . . . . . . . . . . . . . . . . . .5 49 C.F.R. § 383.5. . . . . . . . . . . . . . . . . . . . . . . .5 49 C.F.R. § 391.1(a) . . . . . . . . . . . . . . . . . . . . . .4 49 C.F.R. § 391.25 . . . . . . . . . . . . . . . . . . . . . . .5 49 C.F.R. § 391.31 . . . . . . . . . . . . . . . . . . . . . . .5 49 C.F.R. § 391.41 . . . . . . . . . . . . . . . . . . . . . . .5 49 C.F.R. § 391.43 . . . . . . . . . . . . . . . . . . . . . . .5 ADMINISTRATIVE GUIDANCE 29 C.F.R. Pt. 1630, App. § 1630.2(j) . . . . . . . . . . . . . 22 29 C.F.R. Pt. 1630, App. § 1630.2(l) . . . . . . . 31, 32, 34, 35 EEOC Compliance Manual: Definition of the Term "Disability," Sec. 902 (March 1995) . . . . . . . . . . . . . . . . . 35, 41 Page LEGISLATIVE HISTORY H.R. Rep. No. 485 Part 2, 101st Cong., 2d Sess. (1990) 37, 38, 39 H.R. Rep. No. 485 Part 3, 101st Cong., 2d Sess. (1990)32, 33, 34, 35, 38 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . 37 STATEMENT OF JURISDICTION This action was authorized and commenced pursuant to section 107(a) of Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12117(a), which incorporates by reference sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) and (3), and pursuant to section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. R.1 at 1.<1> The district court had jurisdiction pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. Final judgment was entered June 1, 2006. R.67. The Equal Employment Opportunity Commission (EEOC or Commission) timely filed a notice of appeal on July 31, 2006. R.71. See Fed.R.App.P. 4(a)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether Schneider National's perception that Jerome Hoefner, an otherwise qualified commercial driver, cannot hold any position driving for the company because his medical diagnosis poses an unacceptable safety risk is sufficient to demonstrate that it regards him as having a disability within the meaning of the ADA. STATEMENT OF THE CASE In this action to enforce Title I of the ADA, 42 U.S.C. §§ 12101 et. seq., the EEOC filed suit against Schneider National, Inc. (Schneider) in the United States District Court for the Eastern District of Wisconsin, on September 13, 2004. R.1. The complaint alleges that Schneider removed Jerome Hoefner, an otherwise qualified employee, from his job as a commercial truck driver and subsequently fired him because of a perceived disability, in violation of the ADA. Id. at 2-3, ¶¶ 8-9. The parties filed cross-motions for summary judgment. R.43; R.48. On May 31, 2006, the district court denied the EEOC's motion and granted summary judgment for Schneider. R.66 at 15. The court entered final judgment for Schneider on June 1, 2006. R.67. The EEOC timely filed a notice of appeal on July 31, 2006. R.71; see Fed.R.App.P. 4(a)(1)(B). STATEMENT OF FACTS Schneider is the "largest truckload carrier in North America," with over 13,000 drivers working in three divisions: Schneider National Carriers, Schneider Specialized Carriers, and Schneider National Bulk Carriers. R.45 at 2 ¶¶ 2-3; R.51 at 3 ¶ 7. Most of Schneider's drivers work for Schneider National Carriers, the company's largest division. R.45 at 2-3 ¶¶ 3, 4. On the company's website, Schneider calls itself "the leader in the truckload industry," and advertises that it "offers a wide range of opportunities that other carriers can't match." R.47, #13 at 5. "From van to tanker to flatbed," Schneider assures prospective employees, "you are sure to find a great career opportunity that delivers." Id. Schneider lists the following "Types of Work" performed by drivers in its three trucking divisions: "One-Way Van; Team; Dedicated; Regional; Bulk (Tanker); Specialized (Flatbed); Intermodal (Local/Regional); Home Run Program; and Canadian." Id. The website provides a brief description of the work performed in each of the various categories, specifying the equipment used, the variety of freight hauled, pay rates, driving schedules, weekly mileage, and geographical route locations. Id. at 5-8. Schneider managers Lynn Hyer and Michael Hinz testified that Schneider employs drivers in "over the road" (OTR)<2> and local driving positions, R.47, #4 at 56; "yard drivers" who "primarily stay . . . on the grounds of a customer or on the grounds of Schneider National," id. at 71; R.50, #2 at 41-42; and "tarping and securement drivers," who are "primarily specialized with the industrial glass loads" in Schneider's "Specialized Division" R.50, #2 at 42; R.47, #4 at 71-73. Hinz was unaware of any driving jobs at Schneider that do not require a commercial driver's license (CDL). R.47, #4 at 57. Jerome Hoefner began his career as a truck driver in 1989. See R.45 at 9 ¶ 34. Following his high school graduation, Hoefner served in the Marine Corps in Vietnam, then worked for several years in construction, electrical contracting, and stonecutting. Id. Hoefner "started seeking a truck driving job because that's something [he] always wanted to do," R.47, #1 at 128-29, and Schneider hired him in January 1989. See R.45 at 9-10 ¶¶ 34-35. Hoefner has worked as a commercial truck driver for the past 17 years, with the exception of an eight-month hiatus from October 7, 2002, when Schneider placed him on short-term disability leave, see R.45 at 9-10 ¶ 35, at 16 ¶ 69, until July 8, 2003, when he began his current job driving a tanker truck for Dean Brennan Transport, Inc. R.45 at 24 ¶ 103. The Federal Motor Carrier Safety Administration, a division of the U.S. Department of Transportation (DOT), regulates commercial motor vehicles and prescribes licensing standards that "establish minimum qualifications for persons who drive commercial motor vehicles as, for, or on behalf of motor carriers." 49 C.F.R. § 391.1(a); see also R.45 at 3 ¶ 6. A "commercial motor vehicle," as defined in the regulations, "means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle" has a loaded weight rating of more than 26,000 pounds; is designed to transport the driver and 15 or more passengers; or is used to transport hazardous materials. 49 C.F.R. § 383.5. The statutory authority for the regulation of commercial drivers requires that "[s]uch regulation shall . . . ensure that . . . the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely." 49 U.S.C. § 31136(a)(3). The regulations accordingly establish "[CDL] Standards," with the express "purpose . . . to help reduce or prevent truck and bus accidents, fatalities, and injuries . . . by disqualifying drivers who operate commercial motor vehicles in an unsafe manner." 49 C.F.R. § 383.1(a). The federal "testing and licensing requirements for commercial motor vehicle operators," 49 C.F.R. § 383.1(b)(6), include an annual inquiry and review of a driver's driving record, 49 C.F.R. § 391.25; a road test to assess a driver's skill at performing various specified functions, 49 C.F.R. § 391.31; physical qualifications, 49 C.F.R. §§ 391.41; and medical examinations, 49 C.F.R. § 391.43. From 1989 through the present, Hoefner has maintained a valid CDL and continues to meet all federal qualifications and requirements to operate a commercial motor vehicle. R.45 at 3-4 ¶ 8; R.45 at 24-25 ¶¶ 106-107. While employed by Schneider, Hoefner drove about 130,000 miles a year, hauling loads of paper weighing up to 80,000 pounds to locations throughout the Midwestern and Eastern United States. R.45 at 9-10 ¶ 35. Schneider recognized Hoefner's safe driving record in February 2002, awarding him the company's "Million Miles Award," earned by only the small percentage (between one and 10%) of Schneider drivers who drive one million miles without a preventable accident. Id. at 10 ¶¶ 36-37. Hoefner describes himself as a "safe, courteous" driver who shows "[r]espect [for] the motoring public and everybody on the road." R.47, #1 at 75. Hoefner's supervisor, Michael Hinz, testified that Hoefner "is a very well-thought-of individual," and "people felt he was a very dependable and mature and safe driver." R.47, #4 at 44. Schneider has acknowledged Hoefner's "many years of service, loyalty, and safe driving," R.47, #30, and has confirmed that his "termination from employment had nothing whatsoever to do with his skill as a truck driver." R.47, #31 at 3. Schneider fired Hoefner because he was diagnosed in October 2002 with neurocardiogenic syncope,<3> R.47, #31 at 3, an "automatic disqualifying diagnosis for Schneider." See R.47, #19. On Sunday, October 6, 2002, the morning after his son's wedding, Hoefner attended an early church service on an empty stomach and with only three hours of sleep. R.45 at 10 ¶ 38. During the service, Hoefner felt dizzy and dropped his hymnal. Id. After church, Hoefner accompanied his fiancée to her workplace, a tavern, so she could check her work schedule. Id. at ¶ 39. While seated at the bar drinking a soda, Hoefner fainted. Id. Later that day, he told his son and daughter-in-law, both Emergency Medical Technicians, about the fainting episode and, at their suggestion, went to a hospital emergency room to "get checked out." R.50, #1 at 22-24. The hospital admitted Hoefner for several days of medical testing. R.45 at 10 ¶ 39. Dr. Paul Volkert performed a cardiac catheterization, left ventriculogram, and coronary angiogram, and reported normal results and no sign of heart disease. R.47, #20 at 1-2; R.45 at 12 ¶ 50. Dr. Panagiotis Panogopoulos, a physician board-certified in cardiology and electrophysiology, conducted tilt table testing, a medical procedure designed to diagnose and determine effective treatment of syncope. Id.; R.45 at 11 ¶¶ 41-43. During a tilt table test, the patient is strapped to a table and tilted upright to a 70-degree angle for a total of approximately 40 minutes, while his heart rate and blood pressure are monitored and various medications are administered.<4> See R.45 at 11 ¶ 43. Dr. Panogopoulos administered tilt testing to Hoefner on October 10, 2006, which showed abnormal results "consistent with neurocardiogenic dysfunction." R.47, #20 at 3-4. The doctor prescribed Zoloft, a medicine sometimes effective in treating syncope, and recommended repeat testing in three weeks. Id. at 4. Dr. Panogopoulos further advised that Hoefner "should not drive until his tilt normalizes with treatment," and discharged him. Id. Hoefner returned for further tilt testing on October 23, 2006. R.47, #24. Dr. Panagopoulos tested Hoefner on Zoloft, and with another drug, and found he exhibited "[a]bnormal stress." R.47, #24 at 5. Because Hoefner "drives a truck for work and if he were to have syncope, he could have an accident with his truck," Dr. Panagopoulos recommended that "[h]e should not go back to driving unless he has a repeat tilt and this is normal." Id. The doctor prescribed Florinef, another medicine effective in treating syncope, and directed Hoefner to return in a week for more testing. Id. Hoefner followed Dr. Panagopoulos's instructions, and on October 31, 2002, his tilt test showed "[n]ormal response . . . with the patient on Florinef." R.47, #26. "Based on these results," Dr. Panagopoulos recommended that Hoefner "be allowed to go back to driving his truck," and have his blood pressure "monitored in the next few weeks." Id. Dr. Panagopoulos completed an authorization for Hoefner to return to work without restrictions, and certified that he was prescribed Florinef and was not "experiencing any side effects which would interfere with commercial truck driving." R.47, #28. Hoefner has been taking the same dosage of Florinef – one tablet daily – since October 31, 2002, and plans to continue on the medicine for "[a]s long as [he's] driving." R.47, #1 at 7-9. He experiences no side effects from the drug.<5> Id. at 7-8, 62. Schneider decided Hoefner was medically disqualified from driving based solely on his diagnosis of neurocardiogenic syncope, R.45 at 13 ¶¶ 52-55, pursuant to a company policy which provides: "The following are automatic disqualifying diagnosis [sic] for Schneider National: 1. Vaso-vagal syncope 2. Neurocardio-genic syncope 3. Pertussive syncope."<6> R.47, #19. Under Schneider's policy, a driver "diagnosed with one of the three listed forms of syncope, without exception . . . is disqualified from driving for Schneider in any capacity that requires a commercial driver's license." R.51 at 10 ¶ 37. Lynn Hyer, who was Schneider's Occupational Health and Wellness Manager when the policy was developed, R.45 at 5 ¶ 17, testified that Schneider provides "no alternative" to automatic disqualification "for a commercial driver" with any of "these three diagnoses," and makes "no exceptions" for a driver who takes medication to treat his condition or who has been certified by a physician as qualified to drive under federal motor carrier safety regulations. R. 47, #2 at 80, 84. Schneider manager Michael Hinz was unaware of any driving jobs at Schneider that do not require a commercial license. R.47, #4 at 56-57. Nurses employed in Schneider's occupational health department developed the syncope policy in January 2000, after a Schneider driver, Michael Kupsky, drove his truck off a bridge in a fatal accident. R.45 at 7-9, ¶¶ 23, 26, 31. Kupsky had been diagnosed with neurocardiogenic syncope in September 1999, after he fainted while driving a truck for another company. See R.50, #14 at 10. Schneider hired Kupsky in late November 1999, R.50, #14 at 3-5, and his accident occurred less than two months later, at around 4 a.m. on January 19, 2000. R.50, #14 at 2. Although there is no evidence that neurocardiogenic syncope caused Kupsky's fatal accident,<7> R.45 at 8 ¶¶ 27-28, the current version of Schneider's policy provides the following "Reason" for the automatic disqualification: "Case in 2000 whereby driver lost his life in Commercial Motor Vehicle Accident with [diagnosis] of Neurocardiogenic syncope." R.47, #18; see also R.45 at 7-8 ¶ 26. No physician participated in drafting Schneider's syncope policy, or reviewed the policy before it was adopted. R.45 at 9 ¶ 31. Wendy Sullivan, then lead nurse in Schneider's occupational health department, reviewed Hoefner's medical records and informed his supervisor, Michael Hinz, that the company's syncope policy disqualified Hoefner from driving for Schneider. R.45 at 14 ¶ 59. In disqualifying Hoefner, neither Sullivan nor any other Schneider employee contacted Dr. Panagopoulos, who made the diagnosis, or Hoefner's internist, Dr. Maatman, to discuss his condition. R.45 at 13-14 ¶ 56. Nor did Schneider refer Hoefner to any other physician for further examination or testing. Id. According to Sullivan, who now manages Schneider's occupational health department, individuals diagnosed with neurocardiogenic, vasovagal, or pertussive syncope are disqualified from driving as "a matter of safety and direct threat." R.47, #3 at 12, 20-21. Under the policy, Sullivan testified, "[a]ny person who has a diagnosis of any of those forms of syncope [is] automatically consider[ed] a direct threat." Id. at 21-22. Sullivan further testified that "direct threat" is "inherent to the diagnosis" of neurcardiogenic, vasovagal, and pertussive syncope, and once she saw Hoefner's diagnosis, "that was enough to consider him a direct threat." Id. at 22. Sullivan was aware of Hoefner's current employment as a truck driver hauling hazardous chemicals for another freight company, and testified that "other trucking companies are wrong in their belief that these drivers are not automatically disqualified." Id. at 173-75. Sullivan explained: [T]here is a safety issue when one loses consciousness or has the potential to lose consciousness while driving a commercial motor vehicle, something of that size and magnitude. And none of us have [sic] a crystal ball, not even the best physicians. So one can't say never. . . . Schneider made the right decision after the Kupsky accident in 2000. Cause of death was head trauma, yes; he went . . . head-first into a river and naturally died of head trauma, I would suspect. However, we don't know what caused that accident. We'll never know. And Schneider is not going to take the chance that . . . that horrible accident happens to anybody else. And the fact that he had that condition was enough for Schneider National to say we're not taking that risk again. Id. at 175-76. About a week after Dr. Panagopoulos released Hoefner to return to work without restriction, Schneider informed Hoefner by telephone that he "would never drive an orange truck again."<8> R.47, #29 at 2. Hoefner submitted a "Fair and Equitable Treatment Report" on December 2, 2002, protesting Schneider's decision and requesting to return to work. R.47, #29. Michael Hinz responded by letter dated January 28, 2003, informing Hoefner, "You will not be allowed to return to work, as a driver, with Schneider National, Inc." R.47, #30. Hinz explained that "we simply cannot take the risk that while driving, you would lose consciousness" which "obviously would put you and the motoring public in grave danger." Id. In closing, Hinz encouraged Hoefner "to review the open non- driving positions" at Schneider "and consider applying for these positions." Id. Schneider officially terminated Hoefner's employment on May 12, 2003, when his short-term disability coverage expired. R.45 at 16 ¶ 69. On July 8, 2003, Hoefner started driving a tanker truck, hauling 80,000- pound loads of hazardous chemicals, for Dean Brennan Transport. R.45 at 24 ¶ 103; R.47, #1 at 129-30. Hoefner has experienced no recurrence of syncope since the episode on October 6, 2002, the only time he has fainted in his life. R.45 at 24 ¶ 105. At the time Schneider disqualified him, Hoefner remained licensed to drive commercially under a CDL issued, following a medical examination, on August 26, 2002. Id. at 24-25 ¶ 106. He has since been periodically recertified for commercial driving under DOT standards, on October 9, 2003, October 10, 2005, and January 11, 2006. Id. Hoefner filed a timely charge of employment discrimination based on perceived disability. R.47, #11. In response, Schneider explained that Hoefner "could no longer perform the essential functions of the job (driving) and accordingly was terminated from employment on May 12, 2003 for . . . medical disqualification." R.47, #31 at 3. The EEOC sued Schneider on September 13, 2004. R.1. During the litigation, Schneider moved to exclude the expert opinion testimony of two physicians, Dr. Benditt and Dr. Capodice, offered by the EEOC to demonstrate that Hoefner is medically qualified to drive without posing a direct threat to safety. See R.39 at 5. In its order denying Schneider's motion, the district court recognized that Schneider "did not plead [a direct threat] defense" and "has explicitly waived any such argument," and had further admitted that "Hoefner was physically qualified to do the job." Id.; see also R.66 at 5 ("there is no dispute that Hoefner was qualified to drive for Schneider"). DISTRICT COURT DECISION On cross-motions for summary judgment, the district court granted summary judgment for Schneider and dismissed the EEOC's suit. See R.66 at 15. "Because there is no dispute that Hoefner was qualified to drive for Schneider or that his termination was an adverse employment action," the court determined, "the only issue in this case is whether Hoefner was ‘disabled' under the ADA." R.66 at 4. The parties further "agreed that Hoefner is not actually disabled," the court observed, because "one fainting episode does not substantially limit any of Hoefner's major life activities." Id. at 5. Rather, the EEOC claims Hoefner has a disability within ADA coverage because Schneider regarded him as having a physical impairment – neurocardiogenic syncope – that substantially limits his ability to work. Id. at 5-6. "[I]n order to show that Schneider viewed Hoefner as substantially limited in the major life activity of working," the court stated, "the EEOC must demonstrate that: (1) Schneider viewed Hoefner as unable to drive OTR trucks for any company, not just for Schneider, and (2) driving commercial trucks OTR is a broad class of jobs." Id. at 7. On the first point, the court credited Schneider's assertion that "in firing Hoefner Schneider was only enforcing its own idiosyncratic syncope policy, not making a general pronouncement about Hoefner's ability to drive trucks generally." Id. at 7. "[T]he entirety of the evidence," the court decided, "reveals that Schneider's syncope policy was Schneider-specific and not intended to represent a belief that syncope-diagnosed drivers could not drive for any other trucking company." Id. at 8-9. The court rejected the EEOC's argument that Schneider's perception that "Hoefner was too dangerous to drive for Schneider" is sufficient to show the company regarded him as "too dangerous to drive for anybody." Id. at 10. In the court's view, "one employer's adoption of standards does not ipso facto mean that it believes all other employers would feel the same way – a fact evidenced in this case by the fact the Hoefner now drives for another company." Id. "[B]ecause the evidence shows Schneider was simply enforcing its own in-house syncope policy rather than making a universal medical diagnosis about Hoefner's ability to drive a commercial truck," the court concluded, "the [EEOC] has not demonstrated that Schneider viewed him as substantially limited in his ability to work." Id. at 12. On the second point, the court ruled that "[e]ven if Schneider did believe Hoefner could not drive OTR trucks for any company, that is not enough" to demonstrate it regarded him as substantially limited in working. Id. at 12. The court found "directly on point" the Second Circuit's holding in EEOC v. J.B. Hunt Transport, 321 F.3d 69 (2d Cir. 2003), 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,' . . . but rather a specific job with specific requirements.'" Id. at 13 (quoting J.B. Hunt, 321 F.3d at 75). Although this Court, in Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997), held evidence that a plaintiff's impaired knee "substantially limited his ability to work as a truck driver," or was so perceived by his employer, was sufficient for a jury to find he was "substantially limited in the major life activity of working," id. at 548-49, the district court found "Best is distinguishable for several reasons" and decided "that the law in the Seventh Circuit is [not] settled on this point." R.66 at 14. The court "agree[d] instead with the reasoning of J.B. Hunt and conclude[d] that commercial OTR driving . . . is not a sufficiently large class of jobs such that exclusion from the class would constitute a substantial limitation on working." Id. SUMMARY OF ARGUMENT Schneider permanently disqualified Hoefner from all commercial driving positions – a class of jobs for which he has the requisite specialized license, qualifications, skills, and experience -- because it believed his syncope diagnosis places him at risk of suddenly losing consciousness while driving, posing a safety hazard to him and the driving public. Nurse Sullivan, who disqualified Hoefner and directs Schneider's occupational health department, explained that any employee diagnosed with certain types of syncope is automatically considered a direct threat and therefore disqualified from any job requiring a commercial driver's license. Schneider's perception that Hoefner cannot safely drive its trucks contradicts the conclusion of every physician who has examined him and certified that he meets all federal physical qualifications and safety requirements to drive commercial vehicles. Because these undisputed facts are sufficient to demonstrate that Schneider regarded Hoefner as having an impairment – neurocardiogenic syncope – that precludes him from working in the class of commercial driving jobs, the district court erred in holding, as a matter of law, that Hoefner does not have a disability within ADA coverage. The district court reasoned that because Schneider medically disqualified Hoefner from driving only Schneider trucks, but acknowledged that he remains able to drive commercially for other employers, the company did not regard him as substantially limited in working in a class of jobs. The court's rationale and holding are contrary to the analysis prescribed in this Court's precedent, ADA legislative history, and EEOC regulations and interpretive guidance. This Court has looked to EEOC regulations and guidance to construe the ADA's definition of disability, and has held that an employer's perception that an individual can no longer work as a truck driver is sufficient to demonstrate it regards him as substantially limited in working in a class of jobs. The legislative record and EEOC guidance explain that the ADA protects from discrimination an individual "regarded as" having a substantially limiting impairment, regardless of whether others share his employer's misperception. An employer, like Schneider, who disqualifies an otherwise qualified individual, like Hoefner, from a class of jobs, like commercial truck driving, based on an actual or perceived impairment regards him as substantially limited in working, and triggers the protections of the ADA. The EEOC therefore urges this Court to reverse the summary judgment and remand for further proceedings. STANDARD OF REVIEW Appellate "review of the district court's grant of summary judgment for [Schneider] is de novo." Webb v. Clyde L. Choate Mental Health and Development Center, 230 F.3d 991, 997 (7th Cir. 2000). This Court "must construe all facts and inferences in the light most favorable to the nonmoving party," the EEOC, and will affirm summary judgment "only if the record as a whole reveals that no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law." Id. (citing Fed.R.Civ.P. 56(c)). The Court applies "this standard with added rigor in employment discrimination cases, where intent and credibility are crucial issues." Id. ARGUMENT Schneider's Perception that Jerome Hoefner, an Otherwise Qualified Commercial Driver, Cannot Hold Any Position Driving for the Company Because His Medical Diagnosis Poses an Unacceptable Safety Risk Is Sufficient to Demonstrate that It Regards Him as Having a Disability Within the Meaning of the ADA. Hoefner is covered by the ADA because Schneider believes he has an impairment that substantially limits him in working as a truck driver. Title I of the ADA broadly prohibits employment discrimination "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). "The term ‘disability' means, with respect to an individual – (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). To demonstrate coverage under the third statutory definition of disability, it is necessary that a covered entity entertain misperceptions about the individual – it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. These misperceptions often "resul[t] from stereotypic assumptions not truly indicative of . . . individual ability." Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). Hoefner meets this third definition of disability because, contrary to the determination of every physician who has examined him, Schneider perceives that his medical diagnosis carries an unacceptable "risk that while driving, [he] would lose consciousness" and "put [him] and the motoring public in grave danger." R.47, #30. Based on this misperception of Hoefner's condition, Schneider permanently disqualified him from driving for the company "in any capacity that requires a commercial driver's license," R.51 at 10 ¶ 37, demonstrating that it regards him as substantially limited in working. This Court has accepted the EEOC's definition of "major life activities" to include "working." Kupstas v. City of Greenwood, 398 F.3d 609, 612 (7th Cir. 2005); see 29 C.F.R. § 1630.2(i). Despite Schneider's argument below that working is not "properly deemed a major life activity" under the ADA, the district court correctly decided to "follow the precedent in this circuit and assume that it is." 66 at 5-6 (citing Kupstas, 398 F.3d at 612; Nese v. Julian Nordic Constr. Co., 405 F.3d 638, 643 (7th Cir. 2005)); see R.49 at 12-14. Because "the statute itself sheds little light on what it takes to substantially limit the major life activity of working," the Court "look[s] . . . to the EEOC regulations, which offer some guidance," and the Commission's interpretive "Appendix to Part 1630 [which] also offers some useful examples of impairments that the EEOC believes fit the statutory requirements." DePaoli v. Abbott Laboratories, 140 F.3d 668, 672-73 (7th Cir. 1998).<9> This Court thus recognizes that "[i]n the context of working, ‘substantially limits' means ‘significantly restricted in the ability to perform 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.'" Moore v. J.B. Hunt Transport, 221 F.3d 944, 953 (7th Cir. 2000) (quoting 29 C.F.R. § 1630.2(j)(3)(i)). The rule further provides that "[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i). Drawing on EEOC regulations and guidance, this Court discerns that "in order to define a meaningful class of jobs, we must look to the training, knowledge, skills, and ability required to perform the particular work, as well as the geographic area reasonably available to the plaintiff." DePaoli, 140 F.3d at 672-73; see 29 C.F.R. § 1630.2(j)(3)(ii) ("class of jobs" is "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area [to which the individual has reasonable access], from which the individual is also disqualified because of the impairment").<10> "Common job groupings within a particular industry would also be relevant," the Court continued, "just as they are in the somewhat analogous area of defining relevant markets in antitrust cases." DePaoli, 140 F.3d at 673. The Court further explained: If a disability substantially limits a person from holding a job for which she has a specialized license, and the person would need to undergo significant new training to become qualified for positions of comparable responsibility elsewhere, that fact too would help draw the line between the class of jobs relevant to the ADA and those that are too remote from the position at issue. So, for example, in Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997), this court found that the plaintiff had alleged enough to survive summary judgment when he presented evidence tending to show that his disability might preclude him from all truck drivers' jobs, not just the job he had done for Shell. Id. at 548. DePaoli, 140 F.3d at 673. Pursuant to these standards, the undisputed evidence demonstrates that Schneider disqualified Hoefner from a class of jobs. Schneider admits, in its Statement of Undisputed Facts, that a driver "diagnosed with one of the three listed forms of syncope, without exception . . . is disqualified from driving for Schneider in any capacity that requires a commercial driver's license." R.51 at 10 ¶ 37 (emphasis added). Schneider's website highlights the "wide range of opportunities" the company offers to commercial drivers, and describes the various "types of work" performed by drivers in its three trucking divisions. See R.47, #13 at 5-8. Schneider managers testified that, in addition to OTR (presumably long-distance) driving positions, see supra note 2, the company also employs "local" drivers, R.47, #4 at 56; "yard drivers," R.47, #4 at 71; R.50, #2 at 41-42; and "tarping and securement drivers." R.50, #2 at 42; R.47, #4 at 71-73. The evidence is undisputed that Schneider disqualified Hoefner from every driving job offered in any of the company's three trucking divisions. The district court's conclusion that Schneider disqualified Hoefner from only "‘a specific job with specific requirements,'" R.66 at 13 (quoting EEOC v. J.B. Hunt, 321 F.3d 69, 75 (2d Cir. 2003)), is thus contradicted by Schneider's own admissions. In finding that Schneider excluded Hoefner only "from driving OTR, a position that seems to require driving at least one hundred thousand miles per year,"<11> R.66 at 14, the court mischaracterized the record and ignored undisputed evidence that Schneider considered Hoefner medically disqualified from the entire class of commercial driving jobs. Given the breadth of Schneider's operations and the "wide range of opportunities" afforded commercial drivers in its workforce, R.47, #13 at 5, the company's perception that Hoefner is unable to perform any position driving for "the leader in the truckload industry," id., demonstrates that it regards him as significantly restricted in his ability to perform the class of truck driving jobs. See 29 C.F.R. § 1630.2(j)(3)(i). The scope of Schneider's exclusion distinguishes this case from other decisions holding that a driver's inability (perceived or actual) to perform a particular trucking job, or to drive a certain type or model of commercial vehicle, does not demonstrate he is substantially limited in working in a class of jobs. See EEOC v. J.B. Hunt, 321 F.3d at 75 (trucking company's perception that individuals taking certain prescription medications were unfit to drive "40-ton, 18- wheel trucks over long distances for extended periods" was "a limitation on a particular job within a larger group of jobs" since "persons licensed to drive" such vehicles "are also qualified to drive ‘various types of small and large trucks, including tractor-trailers, moving trucks, and cargo vans'"); Black v. Roadway Express, 297 F.3d 445, 453-54 (6th Cir. 2002) (affirming summary judgment against plaintiff whose knee injury prevented him from driving trucks without cruise control because evidence failed to show "how many trucking jobs [he] would qualify for without the guaranteed provision of cruise control"); Moore, 221 F.3d at 953-54 (rheumatoid arthritis restricted plaintiff's exposure to cold, damp conditions and disqualified him from working as range and road driving instructor, but did not substantially limit working because he was "trained to drive trucks and buses" and restrictions did "not significantly restrict his employment in these fields"); Marinelli v. City of Erie, Pennsylvania, 216 F.3d 354, 365-66 (3rd Cir. 2000) (City maintenance worker whose arm pain prevented him from driving snow plow had "not introduced any evidence to suggest that his injury would hamper an attempt to obtain a position driving any other truck utilized by any employer – including the City," and thus was not substantially limited in working); Baulos v. Roadway Express, 139 F.3d 1147, 1154 (7th Cir. 1998) (drivers with sleep disorders who were "unable to perform the particular position at Roadway that entailed driving sleeper trucks" did not show substantial limitation in working because the "record does not support a finding that plantiffs' impairment of driving sleeper trucks would disqualify them from most other truck driving positions (class of jobs)"). Contrary to the district court's conclusion, see R.66 at 14, this case is governed by this Court's holding in Best, that an individual whose impairment "substantially limit[s] his ability to work as a truck driver," or who is so perceived, is "substantially limited in the major life activity of working." 107 F.3d at 548-49. Best injured his left knee while driving a gasoline delivery truck for Shell, and it became "painful for [him] to drive many of the trucks in Shell's fleet," although "his knee did not bother him when he was seated in a Mack truck seat, rather than the Peterbilt seat he normally had used." Id. at 544-45. Shell's doctor advised its insurance carrier "that in his opinion, Best would have difficulty continuing in his present position as a Shell gasoline truck driver because ‘[t]he demands on his knee may be too overwhelming' for driving duties." Id. at 545. After Shell's doctor "advised that [Best] was ‘not capable of performing the essential functions of the job as a truck driver,'" Best was placed on long-term disability leave. Id. at 546. Best obtained a medical release to "return to work provided he was given a truck with sufficient leg room" to accommodate his knee injury, "but Shell refused to return him to work with those restrictions." Id. During this period, Best began "driving gasoline trucks for another company without experiencing trouble with his knee (because the trucks used by Best's new employer contained sufficient leg room for him to drive without discomfort)." Id. Best resigned after Shell put him on unpaid leave, and subsequently "was able to drive both a chemical delivery truck . . . and a GMC truck without incident." Id. "The precise question" on appeal from summary judgment in Best was "whether Best's impaired knee substantially limited the major life activity of working, or if it simply prevented him from performing one narrow job for one employer." Id. at 548. This Court reversed, finding sufficient evidence for a "reasonable trier of fact [to] find that Best's bad knee substantially limited his ability to work as a truck driver," or "that Shell perceived Best as having a disability that prevented him from working as a truck driver for the company." Id. The Court cited the following evidence in support of reversal: the conclusion and recommendation of Shell's doctor "that Best ‘would have difficulty maintaining this position at this time'" and should "‘consider alternative work duties on a fulltime basis for the future'"; the comment to Best during a driver performance evaluation at Shell that the evaluator "felt Best was not safe and should not be driving"; and a Shell plant manager's statement to Best that Shell's doctor "‘had stated that Best's knee would not take the long hours of abuse required by the job and that Best should find another line of work.'" Id. (emphases supplied by the Court). In particular, the Court considered it significant that Shell "placed Best on long term disability and looked for a non-driving job Best could perform." Id. at 548-49. Like the employer in Best, Schneider decided Hoefner "could no longer perform the essential functions of the job (driving)," R.47, #31 at 3; placed him on disability leave; informed him that he would "not be allowed to return to work, as a driver, with Schneider National, Inc." because he posed an unacceptable safety risk, R.47, #30; and suggested he "consider applying for [open non-driving] positions." Id. From this undisputed evidence, "a trier of fact could find that [Schneider] perceived [Hoefner] as having a disability that prevented him from working as a truck driver for the company," and therefore substantially limited in working. See Best, 107 F.3d at 548-49. The district court's conclusion that the Court in Best did not decide that truck driving is a "class of jobs," for purposes of deciding whether an individual is substantially limited in working (or so regarded) and therefore protected by the ADA, see R.66 at 14, is unsupportable. Appellate courts, including this Court, have uniformly recognized that the Court in Best "held that truck driving constitutes a class of jobs." Black, 297 F.3d at 453-54 & fn. 12; see also Baulos, 139 F.3d at 1152-53 (court in Best found "statements from a doctor and driver performance evaluator that Best should find other work and was not safe to drive . . . raised a genuine issue that Best would commonly face the same clutch and seat problems in many truck driving positions (class of jobs)" and "that Best's employer regarded him as disabled"); DePaoli, 140 F.3d at 673 ("[I]n [Best], this court found that the plaintiff had alleged enough to survive summary judgment when he presented evidence tending to show that his disability might preclude him from all truck drivers' jobs, not just the job he had done for Shell."); J.B. Hunt, 321 F.3d at 75 (citing Baulos as holding that "driving sleeper trucks is a specific job within the broader class of truck driving jobs"). The district court's suggestion that the Supreme Court in Sutton effectively overruled Best is likewise unfounded. See R.66 at 14. The Court in Sutton and Murphy assumed without deciding that the EEOC "regulations regarding the disability determination are valid," Murphy, 527 U.S. at 523, and applied the analysis set forth in these regulations to determine whether a person is regarded as substantially limited in the major life activity of working, and therefore covered by the ADA. See Sutton, 527 U.S. at 491-93; Murphy, 527 U.S at 523-25. Nothing in the Sutton Court's approach in any way undermines the validity of this Court's approach in Best. To the contrary, the analytic framework provided in EEOC rules and guidance was the basis for this Court's ruling in Best, as it was for the Supreme Court's resolution in Sutton. The Court in DePaoli expressly endorsed the EEOC's approach to determine whether an impairment substantially limits an individual in working, and cited its decision in Best as an example of how "to define a meaningful class of jobs." 140 F.3d at 672-73. Consistent with Sutton and Murphy, this Court has since continued to apply the EEOC's regulations and guidance to analyze ADA claims of discrimination based on a perceived (or actual) substantial limitation in the major life activity of working. See, e.g., Kupstas, 398 F.3d at 612-14; Webb, 230 F.3d at 998-99; Moore, 221 F.3d at 953- 54. Under the approach outlined in DePaoli, Schneider's decision to disqualify Hoefner "from driving for Schneider in any capacity that requires a commercial driver's license," R.51 at 10 ¶ 37, demonstrates that the company considers him unable to hold any job requiring the "specialized license" certifying that he has "the training, knowledge, skills, and ability required to perform the particular work" and meets all federal physical and safety standards. See DePaoli, 140 F.3d at 672. As this Court concluded in Best, Schneider's belief that Hoefner was disqualified from commercial driving suffices to demonstrate that it regarded him as significantly restricted in his ability to perform the class of truck driving jobs, and therefore substantially limited in working. While an employer "is free to decide that some limiting, but not substantially limiting impairments make individuals less than ideally suited for a job," Sutton, 527 U.S. at 490-91, an employer's view that an individual's impairment disqualifies him from a class of jobs, like commercial truck driving, signifies that it regards his impairment as substantially limiting his ability to work. The district court further erred, in two fundamental respects, in construing the statutory definition of "disability," which includes an individual who is "regarded as having" "a physical or mental impairment that substantially limits one or more of the major life activities of the individual." 42 U.S.C. § 12102(2)(C). First, the court failed to appreciate the significance of Schneider's reliance on concerns about safety, risk, and potential liability to the determination of coverage under this provision. Second, the court incorrectly held that Schneider could avoid coverage simply by acknowledging that Hoefner remains qualified to drive commercially for other employers. The court's interpretation is wrong as a matter of law. The EEOC's interpretive guidance informs this Court's understanding of the "regarded as" definition of disability: "[A]lthough an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling. . . . [I]f an individual can show that an employer or other covered entity made an employment decision because of a perception of disability based on ‘myth, fear or stereotype,' the individual will satisfy the ‘regarded as' part of the definition of disability." Moore, 221 F.3d at 953-54 (quoting 29 C.F.R. Pt. 1630, App. § 1630.2(l) at 352 (1999)). "The concern," this Court has recognized, "is that employers will act on a misunderstanding of an individual's impairment with the result that a qualified, nondisabled person will be precluded from employment." Id. This portion of the EEOC's guidance derives largely verbatim from the report of the Senate Judiciary Committee, which explains that the rationale for extending protection from discrimination to those "regarded as" having substantially limiting impairments "was articulated by the Supreme Court in School Board of Nassau County v. Arline," 480 U.S. 273 (1987): The Court noted that although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling. "Such an impairment might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's ability to work as a result of the negative reactions of others to the impairment." [480 U.S. at 283.] The Court concluded that, by including this test, "Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment." [Id. at 284.] Thus, a person who is rejected from a job because of the myths, fears and stereotypes associated with disabilities would be covered under this third test, whether or not the employer's perception was shared by others in the field and whether or not the person's physical or mental condition would be considered a disability under the first or second part of the definition. H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess. 29 (1990) (House Judiciary Report) (emphasis added); see also 29 C.F.R. Pt. 1630, App. § 1630.2(l) (same); Sutton, 527 U.S. at 489-90 (quoting Arline and EEOC guidance). Among the "common barriers" identified by sociologists that "frequently result in employers excluding disabled persons," Congress recognized, are "concerns regarding . . . safety, insurance, [and] liability . . . ." House Judiciary Report at 29 (emphasis added); see also 29 C.F.R. Pt. 1630, App. § 1630.2(l) (same). The non-exhaustive "list of frequent workplace concerns" cited in the legislative record "illustrates . . . the attitudinal barriers that Congress clearly intended to include within the meaning of ‘regarded as' having a disability under the Rehabilitation Act and now under the ADA." Id. The House Judiciary Report further specifies that an employer need not "articulate one of these concerns" to enable a claimant to demonstrate ADA coverage. Id. "In the employment context," the Report explains, "if a person is disqualified on the basis of an actual or perceived physical or mental condition, and the employer can articulate no legitimate job-related reason for the rejection, a perceived concern about employing persons with disabilities could be inferred and the plaintiff would qualify for coverage under the ‘regarded as' test." Id. at 29-30. Nor is a "person who is covered because of being regarded as having an impairment . . . required to show that the employer's perception is inaccurate, e.g., that he will be accepted by others, or that insurance rates will not increase, in order to be qualified for the job." Id. at 30. The Report provides an illustrative example of "people rejected from jobs because a back x-ray reveals some anomaly, even though the person has no symptoms," due to "the fear of injury, as well as increased insurance or worker's compensation costs." Id. "These reasons for rejection," the Report explains, "rely on common barriers to employment for persons with disabilities and therefore, the person is perceived to be disabled under the third test." Id. There is no question that concerns about safety, risk, and potential liability motivated Schneider's syncope policy and its decision to disqualify Hoefner from commercial truck driving. The district court found it "obvious" that Schneider "thought there was some danger in having Hoefner drive its trucks . . . or the company would not have adopted the policy or disqualified Hoefner," but wrongly considered these motivations immaterial to the determination whether Schneider perceived Hoefner as substantially limited in working. See R.66 at 9 ("the fact that the company perceived some danger simply speaks to Schneider's corporate risk tolerance profile rather than . . . any belief that Hoefner was substantially limited in his ability to work"). Schneider's "obvious" concerns about safety and low "tolerance" for "corporate risk" (i.e., liability) are among the "frequent workplace concerns" and "attitudinal barriers that Congress clearly intended to include within the meaning of ‘regarded as' having a disability under the Rehabilitation Act and now under the ADA." House Judiciary Report at 29 (emphasis added); see also 29 C.F.R. Pt. 1630, App. § 1630.2(l) ("common attitudinal barriers that frequently result in employers excluding individuals with disabilities . . . include concerns regarding . . . safety, insurance, [and] liability"). Under the construction of the ADA articulated in the legislative record and adopted by the EEOC, an employer that disqualifies an employee with an actual or perceived impairment from a class of jobs due to concerns about safety, risk, and liability that are common barriers to employment regards him as having a disability that substantially limits his ability to work, and triggers the protections of the ADA. See EEOC Compliance Manual: Definition of the Term "Disability," Sec. 902, 51 (March 1995) ("An employer regards an individual as substantially limited in the ability to work if, as the result of myths, fears, stereotypes, or other attitudinal barriers commonly associated with disability, it treats the individual as having an impairment that disqualifies or significantly restricts him or her from working in a class of jobs . . . .").<12> The district court further misconstrued the ADA in ruling that, in order to prove Schneider regarded Hoefner as substantially limited in working, the EEOC was required to demonstrate Schneider believed other employers would likewise disqualify him from commercial driving. See R.66 at 6 ("the EEOC must show that Schneider believed Hoefner was unable to work for any trucking company, not just Schneider"). The court mistakenly required evidence that Schneider believes other employers share its perception that Hoefner poses an unacceptable safety risk as a commercial driver, and enabled Schneider to defeat ADA coverage merely by showing Hoefner remains qualified to drive for other trucking companies. See R.66 at 10 ("one employer's adoption of standards does not ipso facto mean that it believes all other employers would feel the same way – a fact evidenced in this case by the fact that Hoefner now drives for another company"). The court's holding flatly contradicts legislative intent and EEOC guidance, and would defeat Congress's purpose in defining "disability" to include an individual "regarded as" having a substantially limiting impairment. See House Judiciary Report at 29 ("a person who is rejected from a job because of the myths, fears and stereotypes associated with disabilities would be covered under this third test, whether or not the employer's perception was shared by others in the field and whether or not the person's physical or mental condition would be considered a disability under the first or second part of the definition"); 29 C.F.R. Pt. 1630, App. § 1630.2(1) (same).<13> The construction endorsed by the district court, if upheld on appeal, would seriously impair ADA enforcement by allowing an employer to evade the statute's reach by citing the compliance of others. As the Sixth Circuit has recognized, "[t]o permit a company to avoid liability under the ADA simply by showing that an individual with an impairment is able to perform jobs because most companies choose to comply with the ADA would significantly undermine the effectiveness of the ADA." Black, 297 F.3d at 452. An employer's perception that an individual has an impairment that disqualifies him from a class of jobs triggers the protections of the ADA, which require the employer to demonstrate that the standards used to disqualify him are job related and consistent with business necessity, see 42 U.S.C. §§ 12112(b)(6), 12113(a), or that he poses a direct threat to health or safety. See 42 U.S.C. §§ 12113(b), 12111(3). These provisions are essential to effectuate the ADA's prohibition against employment discrimination based on myths, fears, and stereotypes associated with disabilities. "The requirement that job criteria actually measure the ability required by the job is a critical protection against discrimination based on disability," and aims "to assure that persons with disabilities are not excluded from job opportunities unless they are actually unable to do the job," rather than "because of stereotypes, discomfort, misconceptions, and unfounded fears about increased costs and decreased productivity." See S. Rep. No. 116, 101st Cong., 1st Sess. 36 (1989) (Senate Report) (explaining requirement that qualification standards be "job related and consistent with business necessity"); H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. 70 (House Labor Report) (1990) (same). Similarly, "the purpose of creating the ‘direct threat' standard is to eliminate exclusions which are not based on objective evidence about the individual involved," and thereby protect individuals from exclusion or disqualification "based on stereotypes or fear . . . or speculation about the risk or harm to others." House Judiciary Report at 44 (explaining "direct threat" defense). The critical purposes served by these protections would be frustrated if an employer could exclude an individual from a class of jobs based on a perceived impairment, yet defeat statutory coverage – and thereby evade the burden to justify the disqualifying criteria – simply by pointing to the availability of identical jobs with other employers who do not discriminate. The district court's ruling thus effectively insulates the entire commercial trucking industry from scrutiny under the "regarded as" prong of ADA coverage. Consistent with the court's analysis, Schneider (or any other employer of commercial drivers) is free to exclude otherwise qualified employees and applicants, who are not actually limited in any way, from all commercial driving positions based solely on a medical diagnosis, without justifying the qualification standard as job-related and consistent with business necessity.<14> The court's holding also permits Schneider (or any other trucking company) to reject an applicant or employee who is fully qualified to work as a commercial driver because his medical diagnosis creates a perceived safety risk, without showing he poses "a direct threat to the health or safety of other individuals in the workplace." See 42 U.S.C. § 12113(b). The court would find no liability under the ADA, moreover, even when the employer's blanket exclusionary "policy is too strict, or even daft," or premised on an "excessive, even irrational, concern for safety." See R.66 at 15. So long as an employer professes a belief that its policy excludes commercial drivers with certain medical diagnoses only from its own workforce, but recognizes that these drivers are fully capable of performing materially indistinguishable work for other employers who do not share its "excessive, even irrational, concern for safety," the district court decided, "the policy does not flunk the ADA." See id. Finally, even if the ADA required evidence that Schneider regarded Hoefner as unable to drive commercially for other employers to prove it perceived his syncope diagnosis as disabling, the summary judgment record provides ample support for such a finding. Schneider's syncope policy itself, which permanently disqualifies, without exception, any commercial driver diagnosed with certain types of syncope, at the very least permits a reasonable inference that the company perceives such individuals as unable to drive commercial vehicles generally. Absent any evidence that there is some feature unique to Schneider's vehicles or operations that distinguishes them from those of other trucking companies, moreover, this would seem to be the most reasonable inference. The perceived risk that animates the policy and Hoefner's disqualification – that any driver diagnosed with neurocardiogenic syncope will suddenly lose consciousness while driving -- is identical whether he is behind the wheel of an orange Schneider truck or driving a truck of any other color for any other employer. Because Schneider's reason for disqualifying Hoefner does "not pertain to the peculiar job or worksite of one particular employer," but instead pertains to his ability to perform any job as a commercial driver, the company regards his syncope diagnosis as substantially limiting his ability to work in the class of commercial driving jobs. EEOC Compliance Manual: Definition of the Term "Disability," Sec. 902, 53, 51- 57 (to decide whether an employer regards an individual as substantially limited in working, "one should determine whether the criterion [used to disqualify or restrict the individual from employment] pertains uniquely to the peculiar job or work site of one particular employer [or] . . . . whether the criterion pertains to a class of jobs or a broad range of jobs in various classes"). The natural inference raised by Schneider's syncope policy and its explanation for disqualifying Hoefner is plainly expressed in the testimony of lead nurse Wendy Sullivan, who disqualified Hoefner and now manages Schneider's occupational health department. Sullivan testified that she considers Hoefner (or any person diagnosed with neurocardiogenic syncope) to be a "direct threat" as a commercial driver, see R.47, #3 at 12, 20-22, and that "other trucking companies are wrong in their belief that these drivers are not automatically disqualified." Id. at 173-75. This evidence would entitle a reasonable factfinder to discredit as disingenuous the company's insistence that it viewed Hoefner as a direct threat to public safety only in driving commercially for Schneider, but not for any other employer, and find instead that Schneider regards Hoefner, and anyone else automatically disqualified under the company's syncope policy, as too unsafe to work in the class of commercial driving jobs. The district court's conclusion to the contrary, see R.66 at 7-10, does not reflect a view of the evidence most favorable to the EEOC, and thus cannot be sustained on summary judgment. See Reeves v. Sanderson Plumbing Co., 530 U.S. 133, 151 (2000) (on motion for judgment as a matter of law, court "must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence"; must disregard all evidence favorable to the moving party that the jury is not required to believe"; and "should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses'") (internal citations omitted). CONCLUSION Because the undisputed evidence, viewed under the proper legal standard, is sufficient to demonstrate that Schneider regarded Hoefner as having a disabling impairment that substantially limits his ability to work in the class of truck driving jobs, the EEOC urges this Court to reverse the summary judgment and remand for further proceedings. Respectfully submitted, /s/ Dori K. Bernstein RONALD S. COOPER DORI K. BERNSTEIN General Counsel Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITYCOMMISSION Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 (202)663-4734 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) The undersigned, counsel of record for the plaintiff-appellant, Equal Employment Opportunity Commission, furnishes the following in compliance with F.R.A.P. 32(a)(7): I hereby certify that this brief conforms to the rules contained in F.R.A.P. 32(a)(7) for a brief produces with a proportionally spaced font. The length of this brief is 10,848 words. Dated: October 18, 2006 U.S. Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 /s/ Dori K. Bernstein Dori K. Bernstein Attorney for the plaintiff-appellant, Equal Employment Opportunity Commission CIRCUIT RULE 30(d) STATEMENT Pursuant to Circuit Rule 30(d), counsel certifies that all materials required by Circuit Rule 30(a) and (b) are included in the appendix. The materials in the appendix are not available electronically in non-scanned format. See Circuit Rule 31(e). /s/ Dori K. Bernstein Dori K. Bernstein Attorney for the plaintiff-appellant, Equal Employment Opportunity Commission ATTACHED REQUIRED SHORT APPENDIX APPENDIX TABLE OF CONTENTS 1. District Court Docket Sheet Circuit Rule 30(a) Contents 2. Decision and Order, R.66, entered May 31, 2006 3. Judgment, R.67, entered June 1, 2006 Circuit Rule 30(b)(6) Additional Contents 4. Attachment No. 12 to Declaration in Support of Plaintiff's Motion for Summary Judgment, R.47, # 12, filed January 1, 2006 5. Attachment No. 13 to Declaration in Support of Plaintiff's Motion for Summary Judgment, R.47, # 13, filed January 1, 2006 6. Attachment No. 19 to Declaration in Support of Plaintiff's Motion for Summary Judgment, R.47, # 19, filed January 1, 2006 7. Attachment No. 20 to Declaration in Support of Plaintiff's Motion for Summary Judgment, R.47, # 20, filed January 1, 2006 8. Attachment No. 30 to Declaration in Support of Plaintiff's Motion for Summary Judgment, R.47, # 30, filed January 1, 2006 9. Attachment No. 31 to Declaration in Support of Plaintiff's Motion for Summary Judgment, R.47, # 31, filed January 1, 2006 CERTIFICATE OF SERVICE I, Dori K. Bernstein, counsel for Plaintiff-Appellant, the Equal Employment Opportunity Commission, certify that on October 18, 2006, two copies of the Brief and Required Short Appendix of Appellant were delivered by first class U.S. mail to counsel for Defendant-Appellee Schneider National, Inc.: Mark A. Casciari Alison B. Willard James L. Curtis SEYFARTH & SHAW, LLP 131 S. Dearborn Street Suite 2400 Chicago, Illinois 60603 On October 18, 2006, a digital copy of the full contents of the brief was furnished electronically to opposing counsel at: MCasciari@Seyfarth.com. The materials in the appendix are not available electronically in non-scanned format. See Circuit Rule 31(e). /s/ Dori K. Bernstein DORI K.BERNSTEIN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202)663-4734 Dori.Bernstein@eeoc.gov October 18, 2006 ************************************** <> <1> Record references correspond to numbered entries on the district court’s docket sheet and are designated “R.__ at __.” References to attachments and exhibits included in the record correspond to the numbers assigned on the docket sheet and are designated “R.__, #__ at __.” All materials filed in the district court are available electronically via the ECF link on the website of the U.S. District Court for the Eastern District of Wisconsin, https://ecf.wied.uscourts.gov. <2> The term “over the road,” or “OTR,” appears in pleadings and exhibits, and was used by various witnesses, counsel, and the district court in this case. The term does not appear in the federal regulations governing commercial driving, and the record contains no formal definition. The descriptions of various “business units” and “types of work” on Schneider’s website do not use the term OTR. See R.47, #13. According to Schneider manager Michael Hinz, “when we characterize ‘over the road,’ oftentimes what that means is they’re out over the road for long periods of time.” R.47, #4 at 56. Hinz testified that Schneider has driving “positions other than over the road, perhaps local,” and that Schneider drivers in both OTR and local driving jobs must have a commercial driver’s license (CDL). Id. <3> “[N]eurocardiogenic syncope is a complex and common disturbance of the autonomic nervous system that can lead to sudden drops in blood pressure leading to fainting (syncope).” www.ndrf.org/ParoxymalAutonomicSyncope.htm; see also www.americanheart.org/presenter.jhtml?identifier=4749 (“[n]eurally mediated syncope (NMS) . . . also called neurocardiogenic, vasovagal, vasodepressor or reflex mediated syncope . . . is a benign (and the most frequent) cause of fainting. . . . [and] happens because blood pressure drops, reducing circulation to the brain and causing loss of consciousness”). <4> See also www.ndrf.org/ParoxymalAutonomicSyncope.htm (“Tilt table testing is used to determine a person’s susceptibility to [syncopal] episodes. A patient is strapped to a special table and slowly inclined upward to an angle of between 60 and 80 degrees, and kept up for around thirty minutes. . . . [I]n patients with poor autonomic control, this relatively mild stress will provoke a sudden fall in heart rate and blood pressure. . . . [A] synthetic form of adrenaline (isoproterenol) is [sometimes] used as an additional stress.”); www.syncope.co.uk//ttt.htm (“50% to 60% of patients with unexplained syncope reproduce their symptoms at around 20 minutes, often with associated dramatic slowing of the heart rate . . . and precipitous lowering of the blood pressure. . . . The exact pattern of the heart rate and blood pressure change can help determine the best line of treatment. Removing the tilt restores the heart rate and blood pressure to normal and quickly abolishes symptoms.”). <5> See http://www.ndrf.org/ParoxymalAutonomicSyncope.htm (“Therapy for patients with neurocardiogenic syncope has to be individualized to fit that person's needs. Many patients with neurocardiogenic syncope need only avoid predisposing factors (such as extreme heat or dehydration). Some will require medical therapy to prevent further fainting spells. A variety of different medications are used, and no one therapy works for everyone.”). <6> The version of Schneider’s syncope policy in effect at the time Hoefner was disqualified appears in its entirety on page 2 of the summary judgment opinion. See R.66 at 2. <7> The coroner’s report listed Kupsky’s “cause of death” as “A. Head injury; B. Truck crash; C. Secondary – heart disease.” See R.47, #3 at 165. The “[a]utopsy showed the cause of death to be severe crushing head injury with massive skull fracturing,” and demonstrated “significant cardiac enlargement, but no anatomic evidence to prove an acute coronary event.” Id. at 166. The police report of Kupsky’s accident listed “inattentive driving” under “possible contributing circumstances,” id. at 167, and the insurance adjuster informed Schneider that the towing service that removed Kupsky’s truck after the accident “advised that it appeared that the driver may have fallen asleep leaving the roadway at the bridge.” Id. at 168-69. Kupsky’s accident listed “inattentive driving” under “possible contributing circumstances,” id. at 167, and the insurance adjuster informed Schneider that the towing service that removed Kupsky’s truck after the accident “advised that it appeared that the driver may have fallen asleep leaving the roadway at the bridge.” Id. at 168-69. <8> Schneider trucks “are a distinctive orange.” See R.49 at 9. <9> Without deciding the level of deference due the EEOC’s regulations and guidance interpreting the ADA’s definition of “disability,” the Supreme Court has assumed they are valid and applied them repeatedly to determine whether an ADA claimant has a “disability” within statutory coverage. See, e.g., Toyota Motor Manufacturing v. Williams, 534 U.S. 184, 194-200 (2002); Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 563-64 & n.10 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516, 523-24 (1999); Sutton, 527 U.S. at 491-92. This Court likewise assumes the validity of the EEOC’s regulatory interpretation of “disability” and routinely relies on the rules and accompanying guidance to determine coverage of ADA claimants. See, e.g., Kupstas, 398 F.3d at 612-14; Webb, 230 F.3d at 998-99; Moore v. J.B. Hunt Transport, 221 F.3d 944, 953-54 (7th Cir. 2000). <10> According to the EEOC’s interpretive guidance, the term “number and types of jobs,” as used in the regulation, is “not intended to require an onerous evidentiary showing.” 29 C.F.R. Pt. 1630, App. § 1630.2(j). The phrase instead “only require[s] the presentation of evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g., ‘few,’ ‘many,’ ‘most’) from which an individual would be excluded because of an impairment.” Id. <11> The court provides no record or other citation to support this assumption about “OTR” driving, a term that does not appear in DOT regulations or in Schneider’s description on its website of the various types of work opportunities for drivers. See supra note 2. <12> This section of the EEOC Compliance Manual is publicly available on the EEOC’s website, http://www.eeoc.gov/policy/docs/902cm.html. <13> If other trucking companies likewise considered Hoefner medically unqualified to drive commercial vehicles, he would have an actual “disability” under the first prong of the statutory definition, 42 U.S.C. § 12102(2)(A), because his diagnosis would preclude him from performing the class of commercial driving jobs for which he has the requisite training, skills, and abilities, and thereby substantially limit his ability to work. See 29 C.F.R. § 1630.2(j)(3)(i); see DePaoli, 140 F.3d at 673 (impairment that “might preclude [plaintiff] from all truck drivers’ jobs, not just the job he had done for [defendant]” would substantially limit his ability to work in class of jobs) (citing Best, 107 F.3d at 548). <14> While the district court considered it “doubtful . . . that Congress intended the ADA to target the safety regulations of trucking companies, airlines, or other entities whose employees have the potential to inflict massive destruction and loss of life in the event of an accident,” R.66 at 12 n.3, there is no statutory exemption for these industries, and the legislative history makes clear Congress contemplated such employers would be subject to the ADA’s requirements. The House Labor Report, for example, specifically addresses the physical safety qualification standards for “bus and truck drivers” and in the “air transportation” industry: Federal safety regulations require bus and truck drivers to have a medical exam at least biennially. In certain industries, such as air transportation, physical qualifications for some employees are critical. These employees, for example, pilots, may have to meet medical standards established by Federal, State or local law or regulation, or otherwise fulfill requirements for obtaining a medical certificate, as a prerequisite for employment. In other instances, because a particular job function may have a significant impact on public safety, e.g. flight attendants, an employee’s state of health is important in establishing job qualifications, even though a medical certificate may not be required by law. The Committee does not intend for this Act to override any medical standards or requirements established by Federal, State or local law as a prerequisite for performing a particular job, if the medical standards are consistent with this Act (or in the case of federal standards, if they are consistent with section 504 [of the Rehabilitation Act]) – that is, if they are job-related and consistent with business necessity. House Report at 73; see also 29 C.F.R. § 1630.15 (“It may be a defense to a charge of discrimination under this part that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action (including the provision of a particular accommodation) that would otherwise be required by this part.”). There is no dispute that Hoefner satisfies all medical and safety-related qualification standards imposed by law to drive commercially.