IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________ Nos. 01-15410, 15976 & 15977 ____________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee/Cross-Appellant, and JAMES AIKENS, et al., Intervenors-Appellees/Cross-Appellants, v. UNITED PARCEL SERVICE, INC., Defendant-Appellant/Cross-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of California _______________________________________________________ PETITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC _______________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4721 STATEMENT OF COUNSEL In my professional judgment, 1. The panel decision contains a material mistake of fact and law: it states that the decision “affirm[s] the judgment” as to two claimants; in fact, the decision reverses the district court's finding that the claimants are actually substantially limited in seeing, but it leaves open the possibility that they may be covered because UPS regards them as substantially limited in seeing, and the panel explicitly did not reach any other issue. 2. The panel decision conflicts with Albertson's v. Kirkingburg, 527 U.S. 555 (1999), which articulates the standard for determining whether a person with monocular vision is substantially limited in seeing -- the precise issue in this case. 3. The panel decision overlooks a material point of fact and law in that the ruling is premised on the erroneous assumption that Kirkingburg involved the major life activity of working; in fact, the major life activity in Kirkingburg was seeing. 4. This appeal involves the following question of exceptional importance: Whether Toyota Motor Manufacturing v. Williams, 122 S. Ct. 681 (2002), superseded Kirkingburg and materially altered the existing standard for showing that a person with monocular vision is substantially limited in seeing under the ADA. 2 Barbara L. Sloan Attorney, Equal Employment Opportunity Commission TABLE OF CONTENTS Pages STATEMENT OF COUNSEL i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii RULE 35(b) STATEMENT 1 STATEMENT OF THE ISSUES 2 BACKGROUND 1. The Case Below 3 2. The Panel Decision 4 ARGUMENT I. THE PANEL'S DECISION AND JUDGMENT SHOULD BE AMENDED TO DELETE THE STATEMENT THAT THE JUDGMENT AS TO LIGAS AND FRANCIS IS AFFIRMED. 6 II. IN REVERSING THE DISTRICT COURT'S FINDING THAT LIGAS AND FRANCIS ARE SUBSTANTIALLY LIMITED IN SEEING, THE PANEL APPLIED A STANDARD THAT CONFLICTS WITH DIRECTLY APPLICABLE SUPREME COURT PRECEDENT. 8 CONCLUSION 16 CERTIFICATE OF COMPLIANCE 17 CERTIFICATE OF SERVICE ADDENDUM PANEL DECISION TABLE OF AUTHORITIES CASES Page(s) Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) passim Bragdon v. Abbott, 524 U.S. 624 (1998) 14 Bristol v. Board of County Commissioners, 281 F.3d 1148 (10th Cir. 2002) 8 Gillen v. Fallon Ambulance Service, 283 F.3d 11 (1st Cir. 2002) 14 Johnson v. Paradise Valley Unified School District, 251 F.3d 1222 (9th Cir. 2001), cert. denied, 122 S. Ct. 645 (2001) 8 Mack v. Great Dane Trailers, 2002 WL 31367863 (7th Cir. Oct. 22, 2002) 14 Mustafa v. Clark County School District, 157 F.3d 1169 (9th Cir. 1998) 8 Sutton v. United Airlines, 527 U.S. 471 (1999) 13 Toyota Motor Manufacturing v. Williams, 122 S. Ct. 681 (2002) 3, 4-5, 9, 12-16 STATUTES, REGULATIONS and RULES Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. passim 42 U.S.C. § 12102(2) 15 42 U.S.C. § 3002(9) 15 29 C.F.R. § 1630.2(j) 15 Federal Rule of Appellate Procedure 35(b) 1 RULE 35(b) STATEMENT The panel decision in this case conflicts with a decision of the United States Supreme Court, namely Albertson's v. Kirkingburg, 527 U.S. 555 (1999). In Kirkingburg, the Supreme Court held that individuals with monocular vision – like the individuals at issue here – can show that they are substantially limited in the major life activity of seeing and, so, disabled within the meaning of the Americans with Disabilities Act (“ADA”), by offering evidence that, because of their impairment, they are substantially limited in depth perception and visual field – two aspects of seeing “inevitably” associated with monocularity. In this case, the district court evaluated the evidence presented at trial under the Kirkingburg standard and found, as a matter of fact, that two test claimants who are legally blind in one eye are actually substantially limited in seeing. The panel, however, refused to apply the Kirkingburg standard. Instead, the panel held that a monocular individual must show that his impairment “prevents or severely restricts use of his eyesight compared to how unimpaired individuals normally use their eyesight in daily life” – that is, “overall seeing for purposes of daily life.” This standard cannot be reconciled with Kirkingburg. Contrary to Kirkingburg, under the panel's standard, no matter how severely it limits depth perception and visual field, monocular vision does not constitute a substantial limitation in seeing unless the individual's “overall seeing” is substantially limited. Moreover, by measuring visual limitations in terms of tasks the individual can do with his eyesight, the panel's standard conflicts with both Kirkingburg and the ADA, which focus directly on the activity of seeing. The panel's standard not only overrides expressly applicable Supreme Court precedent but also erodes the ADA's protection of persons with monocular vision. Although Kirkingburg states that, with respect to monocular vision, the burden of proof is not “onerous” and such persons “ordinarily will meet the [ADA's] definition of disability,” the panel held that the two persons found to be disabled under Kirkingburg do not meet the standard for disability the panel created in this case. We therefore urge the Court to rehear this case, en banc if necessary, to conform this Court's jurisprudence with that of the Supreme Court and restore the ADA's protections to individuals with monocular vision who meet the standard for disability under Kirkingburg. STATEMENT OF THE ISSUES 1. Whether the statement on page 14626 of the panel decision and related Decree, “affirm[ing] the judgment” as to Stephan Ligas and James Francis, should be corrected, given that (1) the district court found that Ligas and Francis are disabled but dismissed their claims on qualifications grounds, and (2) the panel expressly did not address qualifications and left open the question whether they are covered by the ADA because UPS regards them as substantially limited in the major life activity of seeing. 2. Whether persons with monocular vision who meet the standard for disability under Kirkingburg, a case involving monocular vision and the major life activity of seeing, are substantially limited in seeing even if they do not meet a standard for disability that the panel derived from Toyota Motor Manufacturing v. Williams, 122 S. Ct. 681 (2002). BACKGROUND 1. The Case Below This is an interlocutory appeal from a suit challenging UPS's vision protocol, which excludes any individual with monocular vision – excellent vision in one eye, little or no vision in the other – from jobs driving UPS trucks, even if the individual is actually able to drive safely. Following a trial on liability, the district court enjoined the protocol and resolved a number of other issues. On the question of disability, the court, applying the standard the Supreme Court articulated in Albertson's v. Kirkingburg, 527 U.S. 555, found, as a matter of fact, that two test claimants, James Francis and Stephen Ligas, are actually substantially limited in seeing because, due to their monocular vision, they have no near-field depth perception, a deficit for which they cannot compensate visually -- they must rely on their sense of touch. Plaintiffs' Excerpts of Record (“PER”) 51, PER61-62, PER67.<1> In contrast, the court found that a third test claimant, Shawn Hogya, is not similarly limited because, despite some difficulties, he “has adapted almost completely to his impairment” and “it barely interferes with his ability to see.” PER58-59. The court held that Hogya is covered by the ADA, however, because UPS regards everyone who fails the protocol, including Francis, Ligas and Hogya, as substantially limited in seeing. Id.; PER59. Turning to the question of qualifications, the court found that Hogya, but not Francis and Ligas, is qualified to enter UPS's driver-training program. Accordingly, the court ordered UPS to admit Hogya into the program and dismissed the claims of Francis and Ligas. PER97 (Judgment). 2. The Panel Decision Although the parties appealed a number of rulings, the panel expressly “refrain[ed] from commenting” on any issue besides disability, noting that the existence of a “‘disability' is a gateway requirement for the ADA.” Opinion at 14626. While acknowledging the existence of Kirkingburg, the panel mistakenly assumed that the case did not involve “claimants who asserted that they were, or were regarded as, substantially limited in the major life activity of seeing.” According to the panel, Kirkingburg instead “involved the major life activity of working.” Id. at 14635 (original emphasis). The panel asserted that the “only Supreme Court opinion to discuss a major life activity other than working . . . is Toyota [Motor Mfg v. Williams, 122 S. Ct. 681]” (id.), which was decided since trial in this case and addressed the major life activity of performing manual tasks. The panel noted that, under Toyota, “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts [him] from doing activities that are of central importance to most people's daily lives.” Id. at 14635-36. From this the panel concluded that, “for a monocular individual to show that his impairment is a disability, the impairment must prevent or severely restrict use of his eyesight, compared with how unimpaired individuals normally use their eyesight in daily life.” Id. at 14626, 14636. The panel added that the individual must be substantially limited in “overall seeing for purposes of daily life,” noting that “it does not follow that seeing as a whole is substantially limited just because the individual has a deficiency in one aspect of vision.” Id. at 14636-37 (“critical inquiry is whether seeing as a whole is substantially limited for purposes of daily life”), 14642. Under that standard, the panel reversed the finding that Francis and Ligas are actually disabled. According to the panel, “[d]espite not having fully compensated for loss of near-field vision,” the monocular vision “does not keep either one of them from using his eyesight as most people do for daily life” since they “drive . . ., read, use tools and play sports.” Opinion at 14637. At no point, however, did the panel reject as clearly erroneous the district court's factual findings that Ligas and Francis are substantially limited in seeing under Kirkingburg. The panel then held that the “same standard” would apply to determining whether an individual is covered under the “regarded-as” prong of the definition of disability. Opinion at 14637. The panel vacated the finding that UPS regards all persons who fail the protocol as substantially limited in seeing, and remanded the case for “findings and conclusions as to whether UPS regarded Francis, Ligas or Hogya as having . . . an impairment that substantially and significantly limits their overall seeing for purposes of daily life.” Id. at 14641. Notwithstanding the remand covering Francis and Ligas, the panel decision mistakenly states that the panel “affirm[ed] the judgment as to them.” Id. at 14626. ARGUMENT I. THE PANEL'S DECISION AND JUDGMENT SHOULD BE AMENDED TO DELETE THE STATEMENT THAT THE JUDGMENT AS TO LIGAS AND FRANCIS IS AFFIRMED. We request that the panel correct the following sentence on page 14626 of its decision: “we conclude that neither Ligas nor Francis was disabled, so we affirm the judgment as to them.” The underlined clause was apparently included by mistake. The decision as a whole makes clear that the judgment as to Ligas and Francis was not affirmed on either the ground the district court cited or any alternative ground. The clause therefore should be deleted from the decision and this change reflected in the Court's Decree. Specifically, the district court found that Francis and Ligas are actually substantially limited in seeing and that UPS regards all persons screened out by the vision protocol, including Francis and Ligas, as so limited. However, the court entered judgment against the men based on its view that they are not presently qualified to drive UPS trucks. See PER97-98. The panel did not affirm the judgment on qualifications grounds since it explicitly addressed no issue besides disability. See Opinion at 14626. Furthermore, although it reversed the finding of actual disability, the panel remanded the question of whether “UPS regarded Francis, Ligas [or others] as having . . . an impairment that substantially and significantly limits their overall seeing for purposes of daily life” (id. at 14642 (emphasis added)), thus leaving open the possibility that, on remand, the court below could find that they are covered under the “regarded-as” prong of the definition of disability. Accordingly, the judgment likewise was not affirmed on the alternative ground of disability. While the panel's true disposition of these claims is clear from a close reading of the full decision, the Certified Copy of the Decree of the Court, forwarded to the district court, carries over the mistake from page 14626, stating that the judgment “hereby is AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.” 10/15/2002 Letter to USDC, San Francisco. To avoid confusion, therefore, we urge the panel to delete the clause on page 14626 “affirm[ing] the judgment as to [Francis and Ligas]” and amend the Decree to conform to the corrected decision. II. IN REVERSING THE DISTRICT COURT'S FINDING THAT LIGAS AND FRANCIS ARE SUBSTANTIALLY LIMITED IN SEEING, THE PANEL APPLIED A STANDARD THAT CONFLICTS WITH DIRECTLY APPLICABLE SUPREME COURT PRECEDENT. The panel erred in reversing the district court's holding that, because their monocular vision results in a significant and irremediable loss of near-field depth perception, James Francis and Stephen Ligas are substantially limited in the major life activity of seeing under the standard articulated in Kirkingburg.<2> Disregarding the Kirkingburg standard, the panel held that, “for a monocular individual to show that his impairment is a disability, the impairment must prevent or severely restrict use of his eyesight compared with how unimpaired individuals normally use their eyesight in daily life.” Opinion at 14626, 14636. In the panel's view, the “critical inquiry is whether seeing as a whole is substantially limited for purposes of daily living.” Id. at 14637 (emphasis added). “[I]t does not follow,” the panel reasoned, “that seeing as a whole is substantially limited just because the individual has a deficiency in some aspect of vision” (id.); the impairment must “substantially and significantly” limit “overall seeing for purposes of daily life.” Id. at 14642 (standard comports with Toyota's focus on daily activities affected by impairment). Under that standard, the panel held, Francis and Ligas are not substantially limited in seeing since, despite not having “fully” compensated for loss of near-field vision, they can use their eyesight as most people do for daily life – reading, driving, using tools and playing sports. Id. at 14637. The standard the panel created cannot be reconciled with directly applicable Supreme Court precedent. Specifically, in Albertson's v. Kirkingburg, 527 U.S. 555, the Supreme Court held that a plaintiff with monocular vision may prove that he is substantially limited in the major life activity of seeing by “offer[ing] evidence” of a substantial limitation in depth perception and visual field, two aspects of vision “inevitably” associated with monocular vision. See id. at 566-67 (“evidence that the extent of the limitation [in seeing] in terms of their own experience, as in loss of depth perception and visual field, is substantial”). The Court further noted that this is not an “onerous burden” and that “people with monocular vision ordinarily will meet the Act's definition of disability.” Id. The scenario here is precisely like the one in Kirkingburg. The claimants have monocular vision and the applicable major life activity is seeing. Thus, rather than create a new standard, the panel should simply have reviewed the court's factual findings under the standard set forth in Kirkingburg. The most fundamental inconsistency between the panel's approach and Kirkingburg is that the panel holds that, no matter how severe the associated symptoms are, monocular vision does not constitute a substantial limitation in seeing if the individual's “overall seeing” is not substantially limited. Opinion at 14636-47. Kirkingburg, however, makes clear that a person with monocular vision is substantially limited in seeing if he can show that the effect of monocularity on his depth perception or visual field is substantial. 527 U.S. at 567. There is nothing in the Supreme Court's decision to support the panel's assumption that a person whose monocular vision substantially reduces his depth perception or field of vision is not substantially limited in seeing if he is able to use his vision to perform certain tasks, such as reading, driving, using tools and playing sports. See Opinion at 14637. Indeed, there is no evidence suggesting that monocular vision, no matter how severe, significantly affects an individual's ability to read, to drive, or to play most sports. Of the actions the panel noted that Francis and Ligas can do, the only one where monocular vision plays a significant role is use of some tools. In that respect, the evidence is that Francis and Ligas use touch rather than sight when using tools like screwdrivers because, due to their monocular vision, they have no near-field depth perception.<3> Indeed, the Kirkingburg Court stated that it briefly examined some medical literature on monocular vision (527 U.S. at 566-67); that literature indicates that monocularity affects depth perception. See id. at 566 n.12 (citing Gunter von Noorden, Binocular Vision & Ocular Motility 23-30 (4th ed. 1990)). The cited literature does not support the view that monocular vision adversely affects the performance of the activities considered by the panel. Nevertheless, based on its examination of that literature, the Court concluded that “people with monocular vision ordinarily will meet the [ADA's] definition of disability.” Id. at 567. It was therefore error for the panel to hold that Francis and Ligas are not substantially limited in seeing merely because, in its view, they are not limited in “overall seeing for purposes of daily life.” Significantly, the standard the panel adopted -- considering limitations in “overall seeing for purposes of daily life” and comparing a monocular person's “use of eyesight” with how “unimpaired individuals normally use their eyesight in daily life” -- closely resembles the standard proposed by the employer in Kirkingburg, but not adopted by the Supreme Court. Specifically, the employer there argued that a person with monocular vision should not be considered disabled “if he can otherwise perform normal daily activities requiring eyesight.” Pet. Br. 22-23. Since the Kirkingburg Court opted against basing a disability determination on the individual's ability to do daily activities requiring eyesight, this Court should not undo that decision by adopting a standard similar to the one the Supreme Court rejected. The panel derived its standard from Toyota, 122 S. Ct. 681, which was decided after judgment in this case. Toyota, however, is legally and factually inapposite, particularly when compared with Kirkingburg. In Toyota, the court of appeals had granted summary judgment to the plaintiff, holding that she was substantially limited in the major life activity of performing manual tasks because, due to carpal tunnel syndrome, she could not do work-related tasks like “repetitive work with hands and arms extended at or above shoulder levels for extended periods of time.” See 122 S. Ct. at 693-94. The Supreme Court reversed. Focusing on the term “major life activity,” the Court explained that it refers to “activities that are of central importance to daily life” like “seeing” and “hearing.” Id. at 691. The Court held that, for an activity like “performing manual tasks” to qualify as a major life activity, the manual tasks in question, either “independently” or “together,” must be “central to daily life.” See id.; see also id. at 693 (inability to do tasks associated with one job is not enough). Moreover, since the limitation must be “substantial,” the ADA “precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities.” Id. Thus, the Court held, “to be substantially limited in performing manual tasks, the plaintiff's impairment must prevent or severely restrict her from doing activities that are of central importance to most people's daily lives.” Id. The panel's reliance on Toyota is premised on faulty assumptions regarding that case and Kirkingburg. The panel reasoned that Toyota is especially relevant because it is the “only Supreme Court opinion to discuss a major life activity other than working.” Opinion at 14635. In contrast, the panel asserted, Kirkingburg, like Sutton v. United Airlines, 527 U.S. 471 (1999), “involved the major life activity of working”; although both cases “involve impairments in vision, neither involved claimants who asserted that they were, or were regarded as, substantially limited in the major life activity of seeing.” Id. at 14635 (original emphasis). That is simply wrong. While Sutton was a working case, Kirkingburg involved both the major life activity of seeing and monocular vision. See 527 U.S. at 563 (“The question is whether his monocular vision alone substantially limits Kirkingburg's seeing.”). The decision could not be more on point.<4> The panel may have assumed that Toyota announced a materially different standard for analyzing all impairments and all major life activities other than working. It does not. On the contrary, nothing in Toyota suggests the Court was overruling or superseding Kirkingburg. Rather, Toyota relies on Kirkingburg in discussing the meaning of “substantially limits” and actually quotes from the passage setting out the standard for determining disability in cases involving monocular vision and the major life activity of seeing. See 122 S. Ct. at 691-92 (quoting Kirkingburg, 527 U.S. at 567). As for Toyota's discussion of activities central to daily life, that relates to the question of whether the manual tasks affected by the plaintiff's impairment in that case constituted a major life activity.<5> As noted above, the Supreme Court required that the manual tasks in question be “central to daily life” in order to ensure that “performing manual tasks” fit the category of “major life activities,” which, the Court explained, consists only of activities such as seeing, hearing and walking which are “of central importance to daily life.” 122 S. Ct. at 691. Its inclusion in this list of activities underscores that seeing already is an activity that is central to daily life. As evidenced by the fact that Kirkingburg did not adopt a standard that focuses on normal daily activities requiring seeing, Toyota's holding that manual tasks must be central to daily life does not compel the panel's conclusion here that a vision limitation is substantial only if it keeps the individual from using his eyesight for activities most people engage in in daily life.<6> In short, the panel had no basis for disregarding Kirkingburg and adopting a new standard for determining when persons with monocular vision are substantially limited in seeing. Kirkingburg articulates the Supreme Court's formulation of the proper standard. We therefore urge the Court to rehear the case, en banc if necessary, to correct its flawed interpretation of Kirkingburg, Toyota, and the ADA. CONCLUSION For the foregoing reasons, the decision should be amended and the petition for rehearing, en banc if necessary, should be granted. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel _____________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule 32 and Circuit Rule 40-1, I certify that the foregoing petition was prepared using Courier New (monospaced) font, 12 point, and contains 4085 words, from the Statement of Counsel through the Conclusion (excluding the Table of Contents and Table of Authorities), as determined by the Corel Word Perfect 8 word counting program. ________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I certify that two copies of EEOC's Petition for Rehearing with Suggestion for Rehearing En Banc were served this 1st day of November, 2002, on the following counsel of record: By Federal Express: John J. Mavredakis LAW OFFICES OF JOHN J. MAVREDAKIS 3510 Unocal Place, Suite 106 Santa Rosa, California 95403 By Hand: William J. Kilberg, P.C. Thomas G. Hungar GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 ______________________________ Barbara L. Sloan ADDENDUM 1 While the bulk of the evidence concerned near-field depth perception, there was also evidence that Francis has no peripheral vision in his blind eye, so his visual field is at least 20° narrower than the average binocular person's, TX1034, and that, while Ligas has some peripheral vision, his visual field is also somewhat restricted. See Trial Transcript (“TR”)741; PER62. 2 Whether an individual is substantially limited in a major life activity is a question of fact. See, e.g., Bristol v. Board of County Comm'rs, 281 F.3d 1148, 1159 (10th Cir. 2002) (adding that “most circuit courts agree . . . that this question is factual”); cf. Deegan v. Continental Cas. Co., 167 F.3d 502, 508 (9th Cir. 1999)(“essentially factual” determination as to whether individual has a disability is reviewed for clear error) (ERISA); Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1226-29 (9th Cir. 2001) (applying no-reasonable-jury standard to regarded-as issue), cert. denied, 122 S. Ct. 645 (2001); Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1175 (9th Cir. 1998) (factual issues regarding disability preclude summary judgment). 3 In finding that Ligas and Francis are not actually substantially limited in seeing, the panel apparently assumed that they can compensate visually to some extent for their lack of near-field depth perception. See Opinion at 14637. On the contrary, the loss is permanent and irremediable. The decision mentions that Ligas “focuses in” when doing near-field tasks. Id. at 14630-31. If the panel understood this term to mean that Ligas can see to do such tasks, that is incorrect. Ligas used the term to mean that he concentrates: “I start thinking about it, and I do it.” But mainly he relies on “feel, hand-to-surface feel.” TR743; PER62. 4 Moreover, Bragdon v. Abbott, 524 U.S. 624 (1998), the first Supreme Court case discussing the ADA's definition of disability, also concerned a major life activity other than working -- reproduction. The Court held that the plaintiff was substantially limited even though her HIV status affected her ability to reproduce in only two ways -- she ran a 20% chance of infecting her partner and, if she conceived, at least an 8% chance of transmitting the disease to the child. Id. at 639-40. 5 Cf. Gillen v. Fallon Ambulance Serv., 283 F.3d 11, 21-23 (1st Cir. 2002) (recognizing that Kirkingburg and Bragdon are good law, consistent with Toyota, which discusses the major life activity of performing manual tasks); but cf. Mack v. Great Dane Trailers, 2002 WL 31367863, at *3 (7th Cir. Oct. 22, 2002) (Toyota's analysis - that inability to do occupation-specific tasks may not show inability to do “central functions of daily life” - is not limited to performing manual tasks) (citing EEOC v. UPS). 6 The panel also picked up Toyota's one-time use of the phrase “prevents or severely restricts” – a phrase that could be read to mean more than just “substantially limits.” See Opinion at 14626, 14636. However, the Toyota Court clearly did not and could not raise the statutory standard for disability. Rather, the Court recognized that, to be a disability, limitation caused by the impairment must simply be “substantial.” 122 S. Ct. at 691-92 (citing Kirkingburg, 527 U.S. at 567); see also id. at 691 (“considerable”). The ADA itself uses the term “substantially limits.” 42 U.S.C. § 12102(2); see also 29 C.F.R. § 1630.2(j) (“significantly restricts”). When Congress means “severe,” it uses that term expressly. See, e.g., 42 U.S.C. § 3002(9) (defining “severe disability” in part as “substantial functional limitation in 3 or more major life activities”).