EEOC v. Watkins Motor Lines (6th Cir.) Proof brief as appellant Apr. 26, 2005 No. 05-3218 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WATKINS MOTOR LINES, INC., Defendant-Appellee. ______________________________________________________ On Appeal from the United States District Court for the Southern District of Ohio Docket No. 02-00505 Hon. Thomas M. Rose ______________________________________________________ PROOF COPY OF THE OPENING BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________________ ERIC S. DREIBAND U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 1801 L Street, N.W., Room 7020 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4571 LORRAINE C. DAVIS daniel.vail@eeoc.gov Assistant General Counsel DANIEL T. VAIL Attorney CORPORATE DISCLOSURE STATEMENT As an agency of the United States government, the EEOC is exempt from filing a corporate affiliate/financial interest disclosure statement. See 6 Cir. R. 26.1(a). TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv STATEMENT IN SUPPORT OF ORAL ARGUMENT. . . . . . . . . . . . . .1 STATEMENT ON JURISDICTION. . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .3 A. The Nature of This Case and the Course of Proceedings.3 B. Statement of Facts . . . . . . . . . . . . . . . . . .4 C. The Proceedings Below. . . . . . . . . . . . . . . . 18 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 21 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 A. Standard of Review . . . . . . . . . . . . . . . . . 25 B. The District Court Committed Reversible Error by Applying an Incorrect Legal Standard for Determining Coverage in a "Regarded As" Case . . . . . . . . . . . . . . . . . 26 C. The District Court Committed Reversible Error By Holding that Morbid Obesity Not Caused by Physiological Disorder Cannot Be an Impairment. . . . . . . . . . . . . . . 30 D. The District Court Committed Reversible Error by Failing to Recognize that the EEOC's Evidence Created Genuine Issues of Material Fact as to Whether Watkins Believed Grindle's Morbid Obesity Substantially Limited Him in Working. 39 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 57 CERTIFICATION OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . 58 ADDENDA. . . . . . . . . . . . . . . . . . . . . . . . . . . .A-1 Appellant's Designation of Contents of Joint Appendix . .A-2 Unpublished Opinions Cited in Appellant's Opening Brief .A-6 EEOC v. DaimlerChrysler Corp., 2004 WL 2203586 (6th Cir. 2004). . . . . . . . . . .A-7 Gaddis v. Oregon, 2001 WL 1254922 (9th Cir. 2001). . . . . . . . . . .A-8 Johnson v. Baylor, 129 F.3d 607 (5th Cir. 1997) . . . . . . . . . . . .A-9 Whaley v. S.W. Student Transp. L.C., 2002 WL 999382 (N.D. Tex. 2002). . . . . . . . . . A-10 Zarek v. Argonne Nat'l Lab., 1998 WL 547288 (N.D. Ill. 1998). . . . . . . . . . A-11 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . . . . . . . . . . . . . . . . .25 Andrews v. Ohio, 104 F.3d 803 (6th Cir. 1997) . . . . . . . . . .22, 32, 33, 34, 35, 39 Black v. Roadway Express, Inc., 297 F.3d 445 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . .51 Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . .25 Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . . . . . . . . . . .30 Celotex Corp. v. Catrett, 477 U.S. 317 (1986). . . . . . . . . . . . . . . . . . . . . . . . .25 Clark v. United Parcel Serv., Inc., 400 F.3d 341 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . .25 Coleman v. Ga. Power Co., 81 F. Supp. 2d 1365 (N.D. Ga. 2000). . . . . . . . . . . . . . . . .38 Cook v. R.I. Dep't of Mental Health, Retardation, & Hosps. 10 F.3d 17 (1st Cir. 1993) . . . . . . . . . . . . . . . . .32, 33, 34 Coomer v. Bethesda Hosp., Inc., 370 F.3d 499 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . .25 Cotter v. Ajilon Servs., Inc., 287 F.3d 593 (6th Cir. 2002) . . . . . . . . . . . . . .30, 44, 45, 52 EEOC v. DaimlerChrysler Corp., 2004 WL 2203586 (6th Cir. 2004). . . . . . . . . . . .iii, 51, 52, A-7 EEOC v. Tex. Bus Lines, 923 F. Supp. 965 (S.D. Tex. 1996). . . . . . . . . . . . . . . . . .38 Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997). . . . . . . . . . . . . . . . . . .33, 37 Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . .34 Gaddis v. Oregon, 2001 WL 1254922 (9th Cir. 2001). . . . . . . . . . . . . .iii, 34, A-8 Henderson v. Ardco, 247 F.3d 645 (6th Cir. 2001) . . . . . . . . . . . . . .30, 52, 53, 55 Johnson v. Baylor, 129 F.3d 607 (5th Cir. 1997) . . . . . . . . . . . . . . .iii, 37, A-9 Mahon v. Crowell, 295 F.3d 585 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . .29 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). . . . . . . . . . . . . . . . . . . . . . . . .25 Minadeo v. ICI Paints, 398 F.3d 751 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . .25 Moorer v. Baptist Mem'l Health Care Sys., 398 F.3d 469 (6th Cir. 2005) . . . . . . . . . . . .29, 45, 52, 53, 55 Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999). . . . . . . . . . . . . . . . .23, 40, 50, 51, 53 MX Group, Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . .30 Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001)20, 22, 23, 30, 41, 42, 43, 44, 45, 49, 52 Sch. Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). . . . . . . . . . . . . . . . . . . . . . .26, 27 Smaw v. Va. Dep't of State Police, 862 F. Supp. 1469 (E.D. Va. 1994). . . . . . . . . . . . . . . . . .32 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). . . . . . . . .21, 27, 28, 29, 30, 31, 39, 40, 41 Swanson v. Univ. of Cincinnati, 268 F.3d 307 (6th Cir. 2001) . . . . . . . . . . . . . . . . . .30, 41 Tim v. Wright State Univ., 375 F.3d 418 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . .40 Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995) . . . . . . . . . . . . . . . . . .34, 37 Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). . . . . . . . . . . . . . . . . . . . . . . . .40 Walton v. Mental Health Ass'n of S.E. Pa., 168 F.3d 661 (3d Cir. 1999). . . . . . . . . . . . . . . . . . . . .34 Whaley v. S.W. Student Transp. L.C., 2002 WL 999382 (N.D. Tex. 2002). . . . . . . . . iii, 34, 35, 37, A-10 Zarek v. Argonne Nat'l Lab., 1998 WL 547288 (N.D. Ill. 1998). . . . . . . . . . . . . iii, 38, A-11 Statutes Americans with Disabilities Act of 1990 (the "ADA"). . . . . . . . .passim Rehabilitation Act of 1973 . . . . . . . . . . . . . . . . . . .30, 32, 34 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. §§ 12101 et seq... . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12102(2)(A). . . . . . . . . . . . . . . . . . . . . . . . .26 42 U.S.C. § 12102(2)(C). . . . . . . . . . . . . . . . . . . . . . . . .26 42 U.S.C. § 12111(5)(A). . . . . . . . . . . . . . . . . . . . . . . . .26 42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . . . . . . . . . . .26 42 U.S.C. § 12117. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Regulations 29 C.F.R. § 1630.2(g)(1) . . . . . . . . . . . . . . . . . . . . . . . .26 29 C.F.R. § 1630.2(g)(3) . . . . . . . . . . . . . . . . . . . . . . . .26 TABLE OF AUTHORITIES (con't) Page 29 C.F.R. § 1630.2(h)(1) . . . . . . . . . . . . . . . . . . . . . . . .30 29 C.F.R. § 1630.2(i). . . . . . . . . . . . . . . . . . . . . . . . . .40 29 C.F.R. § 1630.2(j)(3)(i). . . . . . . . . . . . . . . . . . . . . . .40 29 C.F.R. § 1630.2(j)(3)(ii) . . . . . . . . . . . . . . . . . . . . . .41 29 C.F.R. § 1630.2(l)(1) . . . . . . . . . . . . . . . . . . . . . . . .27 29 C.F.R. § 1630.4(b). . . . . . . . . . . . . . . . . . . . . . . . . .26 29 C.F.R. § 1630.4(e). . . . . . . . . . . . . . . . . . . . . . . . . .26 Rules Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. App. P. 32(a)(5).. . . . . . . . . . . . . . . . . . . . . . . .58 Fed. R. App. P. 32(a)(6).. . . . . . . . . . . . . . . . . . . . . . . .58 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . .58 Fed. R. App. P. 32(a)(7)(B)(iii).. . . . . . . . . . . . . . . . . . . .58 Fed. R. App. P. 34(a)(2)(C). . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 56(c). . . . . . . . . . . . . . . . . . . . . . . . . .25 6 Cir. R. 26.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . i 6 Cir. R. 28(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . A-3 TABLE OF AUTHORITIES (con't) Page 6 Cir. R. 30(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . A-5 6 Cir. R. 34(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 Cir. R. 34(j)(2)(C). . . . . . . . . . . . . . . . . . . . . . . . . . 1 Administrative Guidance 29 C.F.R. pt. 1630 app. § 1630.2(h). . . . . . . . . . . . . . . . . . .31 29 C.F.R. pt. 1630 app. § 1630.2(i). . . . . . . . . . . . . . . . . . .40 29 C.F.R. pt. 1630, app. § 1630.2(j) . . . . . . . . . . . . . . . .31, 41 29 C.F.R. pt. 1630, app. § 1630.2(l) . . . . . . . . . . . . . . . . . .28 EEOC Compl. Man., Section 902: Definition of the Term "Disability" (rev. 1999), available at http://www.eeoc.gov/policy/docs/902cm.html27, 31, 36, 39, 41 Miscellaneous The Merck Manual of Diagnosis & Therapy (Robert Berkow ed., 16th ed. 1992) . . . . . . . . . . . . . . . . .31 STATEMENT IN SUPPORT OF ORAL ARGUMENT This appeal implicates some of the most complicated and critical "coverage" provisions of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12101 et seq. This appeal requires this Court to interpret and apply parts of the ADA extending protection to individuals who are "regarded as" disabled. More specifically, this appeal asks this Court to reaffirm that morbid obesity is a cognizable "impairment" within the meaning of the ADA. This appeal also asks this Court to apply the proper standard for proving that an employer "regards" an employee's morbid obesity as "substantially limiting" the employee in the "major life activity" of "working." Due to the significance and difficulty of these issues, plaintiff- appellant Equal Employment Opportunity Commission believes oral argument would significantly aid this Court's decisional process. See Fed. R. App. P. 34(a)(2)(C); 6 Cir. R. 34(j)(2)(C). The EEOC thus asks this Court to grant oral argument in this matter. See 6 Cir. R. 34(a). STATEMENT ON JURISDICTION The EEOC filed this lawsuit against Watkins Motor Lines, Inc. under Title I of the ADA, alleging that Watkins regarded former Watkins employee Steven Grindle as disabled and that Watkins discharged Grindle as a result. (R.1<1>, Complaint pg.1, Apx.__.) The district court had jurisdiction over the EEOC's suit under 28 U.S.C. §§ 1331, 1337, 1343, and 1345, and 42 U.S.C. § 12117. The district court entered final judgment against the EEOC on December 13, 2004. (R.81, Clerk's Judgment, Apx.__.) The Commission filed a timely notice of appeal on February 8, 2005. (R.84, Notice of Appeal, Apx.__.) See Fed. R. App. P. 4(a)(1)(B). This Court now has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES Did the district court err in holding that the EEOC failed to produce sufficient evidence to survive summary judgment on: • Whether Grindle's morbid obesity is an ADA-recognized impairment? • Whether Watkins believed Grindle's morbid obesity substantially limited Grindle in the major life activity of working? STATEMENT OF THE CASE A. The Nature of This Case and the Course of Proceedings The EEOC filed this lawsuit on October 30, 2002, alleging that Watkins violated the ADA when it terminated Grindle because it believed Grindle's morbid obesity substantially limited his ability to work. (R.1, Complaint, Apx.___.) The EEOC sought a permanent injunction preventing Watkins from violating the ADA, backpay, the reinstatement of Grindle "to the position of truck driver," compensatory damages for past and future pecuniary losses and non-pecuniary losses, punitive damages, and costs. (R.1, Complaint pgs.4-5, Apx.___.) The EEOC also requested a jury trial. (R.1, Complaint pg.5, Apx.___.) Watkins moved for summary judgment. (R.35, Watkins's Motion for SJ, Apx. .) The EEOC opposed this motion (R.40, EEOC's Opposition to Watkins's Motion for SJ), and the parties filed several subsequent replies and sur-replies. (R.49, Watkins's Reply to EEOC's Opposition); (R.53, EEOC's Surreply); (R.55, Watkins's Response to EEOC's Surreply.) Magistrate Judge Sharon L. Ovington recommended that Watkins's motion be denied. (R.64, Magistrate Judge's Report and Recommendation ("R&R"), Apx. .) Watkins filed objections to the Magistrate Judge's R&R (R.70, Watkins's Objections, Apx. ), and the EEOC filed a response to these objections. (R.73, EEOC's Response to Watkins's Objections, Apx. .) The district court ultimately granted Watkins's motion. (R.80, District Court Entry and Order ("E&O"), Apx__.) It entered final judgment against the EEOC. (R.81, Judgment, Apx. .) The EEOC then filed a timely notice of appeal. (R.84, Notice of Appeal, Apx__.) B. Statement of Facts Grindle worked at Watkins's Dayton, Ohio terminal as a truck driver/dock worker (i.e., picking up and delivering items, and loading, unloading, and arranging freight on docks). (R.41, Steven Grindle Decl. pg.1 ¶3, Apx. ); (R.28, Steven Grindle Dep. pgs.63-69, 82, Ex.4, Apx. .) The Department of Transportation ("D.O.T.") imposes certain physical requirements on commercial truck drivers which Watkins employees like Grindle must meet. (R.28, Steven Grindle Dep. Ex.4, Apx. .) However, according to Watkins officials, these D.O.T. requirements are merely minimum physical and safety rules, and Watkins imposes additional safety criteria for its drivers and dock workers. (R.33, Koppenhofer Dep. pgs.56, 73, Apx. .) While Grindle worked at Watkins, he weighed well over 300 pounds. (R.41, Shaw Dep. Ex.1 pg.13, Apx. .) Dr. William Shaw, an EEOC expert who performed an independent review of Grindle's medical history, concluded that Grindle has suffered from "clinically severe obesity (formerly called morbid obesity) since adolescence." (R.41, Shaw Dep. Ex.1 pg.5, Apx. .) In 1992, Dr. Walter Lawrence, Watkins's contract physician, gave Grindle a physical examination in connection with Grindle's annual D.O.T. certification. (R.41, Shaw Dep. Ex.1 pg.3, Apx. ); (R.28, Steven Grindle Dep. Ex.1 pg.3, Apx. ). At that time, Dr. Lawrence diagnosed Grindle, who then weighed about 350 pounds, as suffering from "gross morbid obesity." (R.42, Lawrence Dep. pgs.68-69, Ex.2 Doc.652, Apx. .) From 1992 through 1996, Grindle's weight continued to increase, and ranged from around 350 pounds to over 450 pounds. (R.41, Shaw Dep. Ex.1 pg.13, Apx. .) In June 1996, when Grindle weighed 450.5 pounds, Dr. Lawrence diagnosed Grindle as suffering from "gross exogenous obesity." (R.41, Neely Decl. Ex.2 pg.6, Apx. .) Grindle has stated he does not know of any physiological, psychological, or psychiatric cause for his relatively high weight. (R.28, Steven Grindle Dep. pgs.78- 79, Apx. .) Grindle has also testified that his weight has not limited his ability to perform activities such as walking or talking, and has never adversely affected his ability to do his job, either. (R.28, Steven Grindle Dep. pgs.147-48, Apx. .) Indeed, he consistently earned outstanding performance evaluations at Watkins. (R.41, Steven Grindle Decl. pg.1 ¶3, Apx. ); (R.41, Steven Grindle Decl. Ex.1 pgs.2-3, Apx. .) Dr. Shaw's expert report specifically states that "[d]espite lifelong adult morbid obesity, no significant medical complications or co-morbidities are identified in [Grindle's] medical record that would . . . interfere with this man's capacity to perform the essential functions of his job duties." (R.41, Shaw Dep. Ex.1 pg.9, Apx. .) To the contrary, Dr. Shaw observed, "the only performance evaluations available report excellent job performance [confirming] . . . Grindle's own assertion that he was capable of performing his job without problems." (Id.) In November 1995, while Grindle was climbing on an "old, rickety" and "rotted" ladder at work, one of the ladder's rungs suddenly broke. (R.28, Steven Grindle Dep. pgs.83-84, Apx. .) Grindle tried to stop himself from falling backwards off the ladder. (R.28, Steven Grindle Dep. pg.92, Apx. .) In attempting to brace himself, Grindle injured his left knee. (R.28, Steven Grindle Dep. pgs.93-94, Apx. .) He later filed a worker's compensation claim. (R.28, Steven Grindle Dep. Exs.5, 8, Apx. .) After this ladder incident, Watkins officials began to express and document concerns about Grindle's weight. In January 1996, Grindle went to see Dr. Lawrence in connection with his accident injury. (R.41, Steven Grindle Decl. pg.2 ¶4, Apx. .) During this visit, Dr. Lawrence told Grindle and Grindle's wife that, because of Grindle's weight, Grindle would be unable to walk and would be confined to a wheelchair within a year. (R.41, Steven Grindle Decl. pg.2 ¶5, Apx. ); (R.41 Karen Grindle Decl. pg.1 ¶4, Apx. .) The "Initial Report of Injury" Grindle's supervisor completed after the ladder accident stated that Grindle contributed to his injury by being "overweight." (R.41, Steven Grindle Decl. Ex.6 pg.2, Apx. .) A separate "Injury and Illness Investigation Form" prepared by Watkins's Dayton Terminal Manager, Mike Opatich ("Opatich"), indicated "Ladder could not hold weight. Driver[']s weight is [approximately] 330 lbs." (R.32, Jennings Dep. Ex.1, Apx. .) Opatich also called Watkins's regional human resources manager William Thatcher ("Thatcher") to complain that Opatich would now be "stuck" with the costs of Grindle's worker's compensation claim (since the claim had to be paid out of Opatich's budget) – a claim for an injury Opatich obviously believed was weight- related. (R.29, Thatcher Dep. pgs.5, 17, Apx. .) Another e-mail between Watkins officials about Grindle's worker's compensation claim also referenced Grindle's weight, stating "this man weighs over 400 lbs." (R.41, Steven Grindle Decl. Ex.5, Apx. .) Grindle began a medical leave of absence, necessitated by his ladder accident injuries, on January 22, 1996. (R.41, Neely Decl. Ex.30 pg.1, Apx. .) In March 1996, Grindle had surgery on his knee. (R.41, Zancan Decl. pg.2 ¶5, Apx. .) Watkins has a policy requiring all employees to return to work from medical leaves of absence within 180 days. (R.41, Neely Decl. Ex.2 pg.9, Apx. .) Watkins terminates an employee who fails to return within this six month period. (R.28, Steven Grindle Dep. Ex.3 pg.2, Apx. ); (R.41, Neely Decl. Ex.2 pg.9, Apx. .) Under this policy, Grindle had to return to work by July 20, 1996, or face discharge. (R.41, Neely Decl. Ex.2 pg.9, Apx. .) On June 18, 1996, Grindle consulted his own physician, Dr. Walter Zancan. (R.36, Linebarier Decl. Ex.3 pg.2, Apx. .) Notes from this examination indicate that as of June 18, 1996, Grindle was complaining that "his knee stay [sic] sore, swells at times [and that the] swelling increases as [Grindle] uses knee a lot." (R.36, Shuster Decl. Ex.5, Apx. .) However, notwithstanding these comments, Dr. Zancan gave Grindle a note releasing him to return to work – without restrictions of any kind – by June 25, 1996. (R.41, Zancan Decl. pg.3 ¶12, Apx. ); (R.28, Steven Grindle Dep. Ex.26, Apx. .) Watkins alleges that a general "return to work" permission slip from an employee's personal doctor is insufficient because employee doctors often do not fully understand the nature of the employee's work. (R.33, Koppenhofer Dep. pg.46, Apx. .) Watkins claims that it sent Dr. Zancan a "job demands/duties" list and review form reflecting the requirements of Grindle's truck driver/dock worker job. (R.33, Koppenhofer Dep. pg.74, Apx. ); (R.36, Thatcher Decl. pgs.1, 2 ¶¶ 2, 5, Apx. .) Watkins maintains that it asked Dr. Zancan to verify that Grindle could satisfy these criteria. (Id.) Watkins alleges that Dr. Zancan never completed this form and thus never indicated whether Grindle could post-injury meet his job's specific demands and perform his job's specific duties. (R.33, Koppenhofer Dep. pg.79, Apx. ); (R.36, Thatcher Decl. pgs.2, 3 ¶¶ 4, 7, Apx. .) Thus, despite Dr. Zancan's unqualified release clearing Grindle to go back to work as of June 25, 1996, Watkins claims it had to send Grindle to Watkins's Industrial Medical Center for his annual D.O.T. physical and a "return to work" examination. (R.33, Koppenhofer Dep. pgs.47, 49, Apx. ); (R.36, Thatcher Decl. pg.3 ¶8, Apx. .) By contrast, Dr. Zancan stated that he never received such a form, and that no one from Watkins ever asked him to address specifically the truck driver/dock worker demands and duties or to stipulate whether his return to work release was based on a review of them. (R.41, Zancan Decl. pgs.2-3 ¶¶ 9, 11, 13, 14, Apx. .) An e-mail from Opatich (dated May 16, 1996) – stating Grindle had to go to "our doctor" before he could come back – indicates that Watkins decided to send Grindle for a "return to work" physical at the Industrial Medical Center either way. (R.32, Jennings Dep. Ex.4, Apx. .) In any event, during this June 1996 physical, Grindle was again examined by Dr. Lawrence. (R.28, Steven Grindle Dep. pg.149, Apx. .) Before Dr. Lawrence had even examined Grindle, Dr. Lawrence told Grindle "I don't believe I'm going to be able to let you go back to work." (R.41, Steven Grindle Decl. pg.2 ¶7, Apx. .) After examining Grindle, Dr. Lawrence prepared a letter (dated June 26, 1996) containing conclusions on Grindle's ability to return to work. (R.42, Lawrence Dep. Ex.2 pg.187, Apx. .) This letter, which Dr. Lawrence gave to Watkins, noted that "[o]n physical examination, the most notable item is that the patient weighs 450.5 [pounds]. . . . His range of motion is limited as he only flexes to 70 degrees and extends to 5 degrees. He can squat and ‘duck walk' but after four steps is short of breath. . . ." (Id.) The letter also documented Dr. Lawrence's "impression" that Grindle suffered from "gross exogenous obesity" and was "[r]ecovering [from] surgery, left knee." (R.42, Lawrence Dep. Ex.2 pg.187, Apx. .) The letter briefly reviewed the causes and treatment of Grindle's knee injury. (R.42, Lawrence Dep. Ex.2 pg.188, Apx. .) The rest of the letter, however, focused exclusively on Grindle's weight. The letter stated: While Mr. Grindle "passes" the D.O.T. physical, he still remains a concern. . . . While this patient denies any disability, it is a concern, both from a physical and practical standpoint, as to his welfare. In his present job description, 70% of his work is to be at the dock and the surrounding environment, while the remainder is driving with frequent stop and go deliveries requiring frequent climbing in and out of the cab. This has to place an increased cardiovascular burden on this patient, as well as the stress which may precipitate diabetes in a patient this size. . . . While I am not his treating physician, it seems only plausible, based on risk evaluation, that this patient needs to lose 200+ pounds to perform his job safely. The military has, long ago, adopted a weight standard for performance as well as for safety reasons for its personnel. . . . It is not infrequent that professional athletes are "cut" from the team, in all sports, because they cannot meet the standards, especially of weight. Football, which uses large players, still has standards. Only Sumo wrestl[ing] espouse[s] gross obesity as one of its standards, but these individuals have a significantly shortened life span. I would encourage this individual to seek medical and psychological help to achieve a better medical condition. At this time, he meets the D.O.T. standards, but cannot meet the requirements for his job performance, as provided safely, in my opinion. (R.42, Lawrence Dep. Ex.2 pgs.188-89, Apx. .) Dr. Lawrence later admitted that Grindle's job description contained no 200- pound weight loss requirement. (R.42, Lawrence Dep. pg.93, Apx. .) However, Dr. Lawrence reiterated in his deposition that he believed when he wrote his June 1996 letter that Grindle needed to lose 200 pounds to be able to perform his job safely. (R.42, Lawrence Dep. pgs.98-99, Apx. .) Lawrence testified that he "was concerned that [Grindle's] weight could put him at a disadvantaged situation." (R.42, Lawrence Dep. pg.71, Apx. .) "[I]f he goes back to work," Dr. Lawrence said, "he could be placed in any type of job, not that he would be, but that he could be, and that concerned me." (R.42, Lawrence Dep. pgs.71-72, Apx. .) Dr. Lawrence also testified that he was concerned because Grindle's knee had not fully healed. (R.42, Lawrence Dep. pg.120, Apx. .) Dr. Lawrence said he was also concerned over Grindle's "limited range of motion." (R.42, Lawrence Dep. pgs.120-21, Apx. .) Dr. Lawrence stated his reference in his letter to this "limited range of motion" had "nothing to do with [Grindle's] knee," but rather referred to Grindle's back/spine. (R.42, Lawrence Dep. pgs.77, 120-21, Apx. .) Dr. Lawrence said he felt these limitations "put [Grindle] and the Watkins Motor Lines at risk." (Id.) However, when asked whether there was "anything else that [Grindle] needed to do to meet the requirements for his job performance . . . other than losing the 200 pounds," Dr. Lawrence responded, "[t]here could have been . . . but I didn't put them in the letter." (R.42, Lawrence Dep. pg.99, Apx. .) Mike Koppenhofer ("Koppenhofer"), a manager in Watkins's Safety Department, was responsible for determining whether employees could safely perform their jobs. (R.33, Koppenhofer Dep. pg.11, Apx. .) Koppenhofer has never allowed an employee to return to work at Watkins when the examining physician (in this case, Dr. Lawrence) has determined that the employee cannot safely meet the job's requirements. (R.33, Koppenhofer Dep. pg.72, Apx. .) Consequently, after reviewing Dr. Lawrence's letter, Koppenhofer sent an e-mail to Thatcher (the Watkins regional human resources manager) and another Watkins official, stating that: In view of the examining physician's determination that this driver "cannot meet the requirements for his job performance, as provided safely," we are placing this driver on "hold." [Grindle's] status will be reviewed . . . when the examining physician determines that [Grindle] can perform his job requirements safely. (R.33, Koppenhofer Dep. pgs.59-60, Ex.3, Apx. .) In a letter (dated January 18, 1999) submitted by counsel for Watkins to the EEOC's investigator, Watkins alleged that it put Grindle on "safety hold" for the following reasons: (1) "The confusion surrounding Dr. Zancan's decision to release Grindle to return to work"; (2) "Dr. Lawrence's findings that Grindle was still recovering from knee surgery"; (3) "Dr. Lawrence's findings that Grindle could not squat and duck walk for more than four (4) steps without becoming short of breath"; (4) "Dr. Lawrence's findings that Grindle could not flex his knee more than 70 degrees nor extend his knee more than five (5) degrees"; and (5) "Dr. Lawrence's ultimate conclusion, based upon his review of Grindle's job description and the condition of Grindle's knee, that Grindle was unable to safely perform the functions of his job." (R.36, Linebarier Decl. Ex.3 pgs.2-3, Apx. .) In short, Watkins claimed, "[p]lacing Grindle on safety hold was the only viable option given the nature of Grindle's job duties at Watkins, Grindle's inability to squat and duck walk and Grindle's extremely limited range of motion in his knee." (R.36, Linebarier Decl. Ex.3 pg.3, Apx. .) However, Koppenhofer later testified that, in deciding whether to put Grindle on "safety hold," Dr. Lawrence's notation about Grindle's inability to "squat and duck walk" did not "really concern me." (R.33, Koppenhofer Dep. pg.70, Apx. .) Rather, "between Dr. Zancan, you know, not cooperating with us . . . and a couple of things that appeared in Dr. Lawrence's letter, I put the driver on safety hold." (R.33, Koppenhofer Dep. pg.49, Apx. .) Koppenhofer testified that his decision to put Grindle on "safety hold" was not based on the portions of Dr. Lawrence's letter expressing concern over Grindle's weight. (R.33, Koppenhofer Dep. pg.73, Apx. .) Rather, Koppenhofer claimed, he put Grindle on "safety hold" because of Dr. Lawrence's comments on Grindle's knee injury and "limited range of motion," and because Dr. Zancan would not "step up to the plate" and provide a clearance for Grindle based specifically on Grindle's truck driver/dock worker duties. (R.33, Koppenhofer Dep. pgs.49, 62, 68-70, Apx. .) Grindle spoke with Thatcher at least twice during the time he was on "safety hold." During one of these conversations, Thatcher said that Grindle needed to lose 200 pounds and get in shape in 30 days (the amount of time left before Grindle's 180 days of leave would be exhausted) or he would be let go. (R.41, Steven Grindle Decl. pg.3 ¶14, Apx. .) Thatcher told Grindle to do whatever it took – to "run around the house or whatever it was" – to lose the weight. (R.41, Steven Grindle Decl. pgs.3-4 ¶14, Apx. .) Grindle tape recorded a second conversation with Thatcher. (R.41, Steven Grindle Decl. pg.3 ¶13, Apx. .) According to a notary public-prepared transcript of this conversation, Thatcher told Grindle that he should be moving off worker's compensation to short-term disability leave. (R.41, Steven Grindle Decl. Ex.2 pg.6, Apx. .) Thatcher said it was "just as if [Grindle] had a heart condition or . . . TB or whatever." (R.41, Steven Grindle Decl. Ex.2 pg.7, Apx. .) Grindle asked if Watkins was "letting me go." (R.41, Steven Grindle Decl. Ex.2 pg.9, Apx. .) Thatcher said "it really depends on . . . whether or not you're going to . . . be able to meet that doctor's expectations." (Id.) According to Thatcher, Dr. Lawrence was "the guy that in our judgment, you have to satisfy" before being allowed to come back. (R.41, Steven Grindle Decl. Ex.2 pg.10, Apx. .) "[H]ow you go about that," Thatcher said, is "really up to you." (R.41, Steven Grindle Decl. Ex.2 pg.11, Apx. .) "You can run around in the backyard," Thatcher said, "you can see a dietician, I'm not being facetious . . . just kind of like whatever works for you . . . ." (Id.) Grindle then said "the thing of it is, I've seen this doctor [Dr. Lawrence] for the four years I've been in Dayton. I've been about this size, then all of a sudden he does this, it's kind of strange, sir, you know?" (R.41, Steven Grindle Decl. Ex.2 pgs.11- 12, Apx. .) Thatcher replied "yeah, I don't know." (R.41, Steven Grindle Decl. Ex.2 pg.12, Apx. .) Thatcher then asked "[w]hat was your weight, by the way?" Grindle replied, "Well, he says 455." (Id.) But, Grindle noted, Dr. Lawrence's "scales only go to 350. He hung[] things on it to weigh me at. So, you know, that's not a legal scale." (Id.) Thatcher replied "well, then get yourself weighed at some place at a legal scale and share that information with him. . . . If you think his scale was off look up somebody that has one that can't be argued with." (R.41, Steven Grindle Decl. Ex.2 pgs.12-13, Apx. .) During these conversations, Thatcher never indicated in any way that Grindle's knee injury or "limited range of motion" or inability to "squat" or "duck walk" was the real reason Dr. Lawrence, Koppenhofer, or anyone else at Watkins believed Grindle was unfit to return to work. Thatcher later denied telling Grindle that Grindle needed to satisfy Dr. Lawrence to be able to come back to work. "I would have never said that at the time," Thatcher testified. (R.29, Thatcher Dep. pgs.38-39, Apx. .) He admitted, however, that the average person "on the street" could read Koppenhofer's e-mail announcing the "safety hold" as indicating that Dr. Lawrence's opinion was the determining factor in whether Grindle would be allowed to come back to work. (R.29, Thatcher Dep. pg.53, Apx. .) Thatcher also admitted telling Grindle to run around his backyard and see a dietician. (R.29, Thatcher Dep. pg.39, Apx. .) However, Thatcher said he meant that Grindle should do those things to help himself recover from his knee injury. (R.29, Thatcher Dep. pgs.40-43, Apx. .) In the week before Grindle's leave was to expire, Thatcher called Pamela Linebarier ("Linebarier"), Watkins's Director of Employee Relations, to discuss whether Grindle should be allowed to return to work. (R.36, Linebarier Decl. pg.1, Apx. .) What "caused us to pause," Linebarier testified, "was a sentence that said basically, although this person is [D.O.T.] qualified, he is unsafe." (R.43, Linebarier Dep. pg.54, Apx. .) Linebarier said to her, this meant Grindle could not safely do either dock work or driving. (Id.) Linebarier testified that she and Thatcher were worried that, because Grindle could not safely do either driving or dock work, he might pose a liability risk if he were to return. (R.43, Linebarier Dep. pg.55, Apx. .) They feared that while driving his truck Grindle might, for instance, crash into a school bus. (R.43, Linebarier Dep. pg.54, Apx. .) They also speculated that while working on the dock he could crash his towmotor (a forklift) into someone. (Id.) She said she felt they would have been negligent to allow someone to return to work when a doctor has said that that person is unsafe. (R.43, Linebarier Dep. pg.60, Apx. .) Linebarier testified that if Grindle had had a disability, they would have considered whether to extend his 180-day leave period as a reasonable accommodation. (R.43, Linebarier Dep. pg.55, Apx. .) She said they never discussed this possibility because "there was no disability." (R.43, Linebarier Dep. pgs.55, 60, Apx. .) She also stated that she and Thatcher talked about Grindle's "knee recovering injury" and his "flexing range of motion." (R.43, Linebarier Dep. pg.60, Apx. .) "Those," she said, "were our concerns." (Id.) Linebarier and Thatcher decided together to allow Watkins's automatic termination policy to take effect. (R.41, Neely Decl. Ex.7 pg.3, Apx. ); (R.43, Linebarier Dep. pgs. 53-55, Apx. .) Watkins never released Grindle from "safety hold." (R.33, Koppenhofer Dep. pg.53, Apx. .) On July 22, 1996, Watkins formally terminated Grindle for failing to return to work after a 180-day medical leave of absence. (R.41, Neely Decl. Ex.2 pg.9, Apx. .) The "Notice of Driver Separation" form Opatich completed memorializing Grindle's discharge stated that Grindle was "no longer qualified to drive in the Watkins Motor Line System" because he was "medically unqualified." (R.33, Koppenhofer Dep. Ex.5, Apx. .) C. The Proceedings Below On June 15, 2004, the Magistrate Judge issued a report recommending that Watkins's motion for summary judgment be denied. (R.64, Magistrate Judge's R&R, Apx. .) Relying on the EEOC's ADA regulations and interpretive guidance, the Magistrate Judge concluded that Grindle's morbid obesity is an ADA-recognized impairment. (R.64, Magistrate Judge's R&R pgs.14-19, Apx. .) The Magistrate Judge also determined that Watkins erroneously believed Grindle's morbid obesity substantially limited his ability to work. (R.64, Magistrate Judge's R&R pg.23, Apx. .) Finally, the Magistrate Judge found that the EEOC presented enough evidence to survive summary judgment on whether Watkins's misperceptions about Grindle's morbid obesity motivated its decision to fire him. (R.64, Magistrate Judge's R&R pgs.20-22, Apx. .) On December 10, 2004, the district court rejected this R&R and granted Watkins's motion for summary judgment. (R.80, District Court E&O, Apx__.) The district court opined that it had to determine "whether obesity, especially obesity that is not alleged to be related to a physiological cause, is a physical impairment that limits a major life activity." (R.80, District Court E&O pg.6, Apx__.) The district court determined that it was not. According to the district court, the ADA: does not normally protect the obese, even under a ‘regarded as' theory, and [this court] speculates that the rare circumstance where obesity is a disabling impairment is where it has a physiological cause. To extend the ADA to the instant case would demean "[t]he purposes of the ‘regarded as' prong[, which] is to provide a cause of action to individuals ‘rejected from a job because of the ‘myths, fears and stereotypes' associated with disabilities.'" (R.80, District Court E&O pg.8, Apx__ (quoting Ross v. Campbell Soup Co., 237 F.3d 701, 708 (6th Cir. 2001).) The district court then ruled that even if Grindle's obesity is an ADA impairment, the EEOC had not shown that Watkins believed this condition substantially limited Grindle's ability to work. The district court conceded the EEOC had proffered "admissible evidence that could lead a jury to believe that Watkins believed Grindle [was] [in]capable of performing [as a dock worker] due to his obesity." (R.80, District Court E&O pg.9, Apx__.) However, the district court noted, Dr. Lawrence concluded that Grindle met D.O.T. standards for driving a truck. "Having been certified as passing [D.O.T.] standards, it appears that, even if Watkins perceived Grindle was unable to perform the dockworker aspects of its position, it perceived Grindle as capable of performing" as a truck driver. (R.80, District Court E&O pg.9, Apx__.) According to the district court, "[i]t defies the power of even the logic of discrimination to conclude that an obese person who passes [D.O.T.] standards is not capable of driving a truck." (R.80, District Court E&O pg.10, Apx__.) ". . . [T]he uncontested evidence is that Watkins perceived Grindle as capable of performing a wide range of jobs." (Id.) Consequently, the district court concluded, the EEOC failed to show that Watkins regarded Grindle as substantially limited in working. (R.80, District Court E&O pgs.9-10, Apx__.) SUMMARY OF ARGUMENT The ADA covers employees who are not actually disabled if the employees are nevertheless "regarded as" disabled. The EEOC brought this as a "regarded as" case. The EEOC showed that Grindle had an actual ADA-recognized impairment – morbid obesity – that did not pose a substantial limitation on any major life activity. The EEOC also presented evidence that Watkins erroneously believed that Grindle's condition did impose a significant restriction on his ability to work. Under Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and numerous Sixth Circuit cases, this is a permissible analytical path for proving an employer "regards" an employee as disabled. However, the district court criticized this method for establishing "regarded as" coverage. The district court rejected the EEOC's regulations (which are wholly consistent with Sutton and Sixth Circuit law) allowing "regarded as" status to be established by showing an employer mistakenly thought an actual, nonlimiting impairment posed a substantial limitation. This was reversible error. The district court also failed to find that morbid obesity is an impairment cognizable under the ADA. The EEOC's regulations respecting weight-related impairments acknowledge that normal weight deviations not accompanied by a physiological disorder typically are not "impairments." However, weight variations outside the range of "normal" may very well be impairments even in the absence of related physiological disorder. Accordingly, as this Court recognized in Andrews v. Ohio, 104 F.3d 803 (6th Cir. 1997), morbid obesity, without more, is an impairment within the meaning of the ADA. The district court misconstrued Andrews when it insisted that any type of obesity without a corresponding physiological disorder is not an impairment. This was also reversible error. Finally, the district court committed several reversible errors in holding that the EEOC's evidence failed to create a genuine issue as to whether Watkins believed Grindle was substantially limited in working. In Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001), this Court emphasized that evidence that an employer viewed an employee "through the lens of the employee's medical condition" and terminated the employee because of the employee's medical condition, combined with evidence that the employer concocted a pretextual justification for the termination, is highly probative of the employer's state of mind on this coverage question. Ross stressed the need to leave this "regarded as substantially limited in working" determination – a singular issue of intent – to a jury. The EEOC presented significant evidence satisfying this Court's Ross criteria by showing that Watkins discharged Grindle because of his morbid obesity and then proffered a pretextual justification (e.g., the "knee injury" defense) for its actions. However, the district court failed even to cite Ross and ignored all of the EEOC's evidence creating a genuine issue of material fact under Ross as to whether Watkins thought Grindle was substantially limited in performing a class or broad range of jobs. This, too, was reversible error. In addition, under Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), employees are covered under the ADA if the limitations the employer regards the employee as having would, if actually present, substantially limit the employee's ability to perform a class or broad range of jobs. That is, individuals can be "regarded as" substantially limited in working if, assuming the limitations the employer perceives were real, these limitations would render the individual actually disabled. Here, the EEOC presented evidence that the duties inherent in Grindle's truck driver/dock worker job constituted a class of jobs and were present in a broad range of jobs. If, as Watkins erroneously believed, Grindle's morbid obesity precluded him from doing these duties, Grindle would have been substantially limited in working. This suffices, under Murphy, to show that Watkins "regarded" Grindle as such. However, even assuming the EEOC has to show affirmatively that Watkins thought about whether Grindle was precluded from performing a class or broad range of jobs (as opposed to just his job at Watkins), the EEOC made such a showing. Furthermore, evidence that an employer believed the employee could not perform a particular job's duties permits the reasonable inference that the employer also believed the employee would not be able to perform substantially similar duties anywhere else. The EEOC presented ample evidence (e.g., Dr. Lawrence's letter, Dr. Lawrence's testimony indicating that Grindle could not safely perform "any job" at Watkins, Koppenhoffer's e-mail citing Dr. Lawrence's letter as the reason Watkins put Grindle on "safety hold," Linebarier's testimony to this effect) demonstrating that Dr. Lawrence and Watkins officials clearly believed Grindle's morbid obesity precluded him from performing any of his duties at Watkins or from doing similar work anywhere else. This is enough to create a genuine issue of material fact as to whether Watkins regarded Grindle as substantially limited in working. Yet the district court completely ignored all of this evidence. The district court refused to view the record in the light most favorable to the EEOC, found facts actually contrary to the record, and usurped the jury's function by discerning Watkins's state of mind. This was all reversible error. ARGUMENT A. Standard of Review This Court reviews a district court's grant of a motion for summary judgment de novo. Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir. 2005). In conducting this review, this Court applies the same summary judgment standard the district court should have used. Minadeo v. ICI Paints, 398 F.3d 751, 756 (6th Cir. 2005). Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and affidavits (if any) show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether there is a genuine issue of material fact, this Court cannot determine the truth of any matter or weigh the evidence. Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Rather, this Court must view the record evidence and draw all reasonable inferences in the light most favorable to the nonmoving party (here, the EEOC). Coomer v. Bethesda Hosp., Inc., 370 F.3d 499, 504 (6th Cir. 2004); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). B. The District Court Committed Reversible Error by Applying an Incorrect Legal Standard for Determining Coverage in a "Regarded As" Case The ADA prohibits employers from discriminating against any qualified "individual with a disability," with respect to terms, conditions, and privileges of employment (such as application procedures, hiring, advancement, compensation, training, and discharge), because of disability. 42 U.S.C. § 12112(a); 42 U.S.C. § 12111(5)(A); see also 29 C.F.R. §§ 1630.4(b), (e) (noting that illegal discrimination includes adverse treatment related to termination and leaves of absence and/or sick leave). An individual has a "disability" for these purposes, and is thus generally shielded by the statute from disability-based discrimination, if the individual has a "physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A); see also 29 C.F.R. § 1630.2(g)(1). In addition, certain individuals who do not actually have a substantially limiting impairment are also covered under the statute. Employees may be protected by the ADA if their employer merely "regards" them, albeit erroneously, as being disabled. See 42 U.S.C. § 12102(2)(C); see also 29 C.F.R. § 1630.2(g)(3). In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court held that: [t]here are two apparent ways in which individuals may fall within [the statutory definition of being "regarded as" disabled]: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, 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. Sutton, 527 U.S. at 489; see also 29 C.F.R. § 1630.2(l)(1) (an individual will be "regarded as" having a disability if the individual "[h]as a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such a limitation"); Compl. Man. § 902.8(c) (the ADA "covers individuals who have impairments that do not substantially limit major life activities but who are perceived as being substantially limited"); 29 C.F.R. pt. 1630 app. § 1630.2(l) (same). The district court clearly misunderstood and/or misapplied this Sutton standard. Here, the EEOC advanced its case under the second Sutton "regarded as" prong. It proffered evidence establishing that Grindle has an actual impairment – morbid obesity. The EEOC also showed that Watkins believed (albeit erroneously) that Grindle's morbid obesity substantially limited his ability to work (and that that is why it refused to let him return from his leave and later discharged him). Yet in a passage from its opinion that is nearly inscrutable, the district court criticized the EEOC for attempting to prove its case under this second Sutton "regarded as" prong – for arguing that "one may violate the ADA by discriminating against an individual regarded as having a disability when ‘[t]he individual [has] an impairment which is not substantially limiting but is perceived by the employer . . . as constituting a substantially limiting impairment. . . .'" (R.80, District Court E&O pg.6, Apx. (quoting 29 C.F.R. pt. 1630, app. § 1630.2(l)).) "In effect," the district court reasoned: this interpretation abolishes the ADA statutory limitation of its reach to those suffering from or regarded as suffering from "a physical or mental impairment that substantially limits one or more major life activity of such individual[]" . . . and extends its protections to anyone suffering from any impairment if the employer misperceives the impairment as substantially limiting a major life activity. If the EEOC is correct, the ADA incongruously forbids an employer from discriminating against someone, if for example, they think the person obese and think that obesity affects a major life activity; but allows them to discriminate if they think the person is obese and just do not like the sight of 450-pound people. (R.80, District Court E&O pgs.6-7, Apx. .) Thus, the district court effectively ruled that a plaintiff may not prove coverage in a "regarded as" case by showing an employer mistakenly believed an actual non- limiting impairment substantially limited the plaintiff in a major life activity. This is plainly contrary to Sutton. See Sutton, 527 U.S. at 490 (emphasis added) (explaining that "an employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity"). The district court's reasoning is also directly contrary to a myriad of post-Sutton Sixth Circuit cases all endorsing the EEOC's allegedly "incongruous" reading of the ADA. Most recently, in Moorer v. Baptist Memorial Health Care System, 398 F.3d 469 (6th Cir. 2005), this Court applied the second Sutton "regarded as" prong in a case where an employer believed an employee's actual nonlimiting impairment (alcoholism) substantially limited the employee in the major life activity of working. See id. at 479; see also Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002) (also applying the Sutton "regarded as" formulation); MX Group, Inc. v. City of Covington, 293 F.3d 326, 340 (6th Cir. 2002) (same); Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 599 (6th Cir. 2002) (same); Henderson v. Ardco, 247 F.3d 645, 650 (6th Cir. 2001) (same); Swanson v. Univ. of Cincinnati, 268 F.3d 307, 318 (6th Cir. 2001) (same); Ross v. Campbell Soup Co., 237 F.3d 701, 706 (6th Cir. 2001) (same). The district court's unfounded rejection of this plainly permissible analytical approach doubtless led the district court to misjudge the legal merits of the EEOC's entire case. For this reason alone, the district court's decision entering judgment against the EEOC should be reversed. C. The District Court Committed Reversible Error by Holding that Morbid Obesity Not Caused by Physiological Disorder Cannot Be an Impairment An "impairment," for purposes of the ADA, is any "physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of [various] body systems" (such as the neurological, musculoskeletal, cardiovascular, digestive, genito-urinary, and endocrine systems). 29 C.F.R. § 1630.2(h)(1) (emphasis added); see also Bragdon v. Abbott, 524 U.S. 624 (1998) (citing identical "impairment" regulations promulgated by the Department of Health, Education and Welfare under the Rehabilitation Act of 1973). In Sutton, the Supreme Court indicated that certain "physical characteristics or medical conditions" may not rise to the level of an impairment. Sutton, 527 U.S. at 490. Similarly, EEOC guidance emphasizes the importance of distinguishing "between conditions that are impairments and physical, psychological, environmental, cultural and economic characteristics that are not impairments." 29 C.F.R. pt. 1630 app. § 1630.2(h). For example, the term "impairment" does not include "physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within ‘normal' range and are not the result of a physiological disorder." Id. (emphasis added). For this reason, "normal deviations in . . . weight . . . that are not the result of a physiological disorder are not impairments." Compl. Man. § 902.2(c)(5) (emphasis added). Thus merely being overweight, in and of itself, is generally not considered an ADA impairment. Id.; cf. 29 C.F.R. pt. 1630 app. § 1630.2(j) (noting that "except in rare circumstances, obesity is not considered a disabling impairment"). By contrast, "severe obesity, which has been defined as body weight more than 100% over the norm[,] . . . is clearly an impairment." Compl. Man. § 902.2(c)(5) (emphasis added) (citing The Merck Manual of Diagnosis & Therapy 981 (Robert Berkow ed., 16th ed. 1992)). When obesity rises to this level, it is no longer a "normal deviation" in weight and there is therefore no need to inquire into whether the obesity stems from any other type of disorder. Severe/morbid/gross exogenous obesity itself becomes the requisite "condition" satisfying the regulatory definition of "impairment." Cf. Cook v. R.I. Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17, 24 (1st Cir. 1993) (noting that the Rehabilitation Act "contains no language suggesting that its protection is linked to how an individual became impaired, or whether an individual contributed to his or her impairment"). The only reported Sixth Circuit case addressing this issue supports this position. In Andrews v. Ohio, 104 F.3d 803 (6th Cir. 1997), a group of troopers failed a physical examination administered to test their ability to meet a state-imposed weight and fitness standard. They sued under the ADA claiming that Ohio had regarded them as disabled – based on their weight and fitness level – and discriminated against them because of this perceived disability. On appeal, this Court relied on the EEOC's regulations and interpretive guidance regarding weight-related impairments. Andrews, 104 F.3d at 808. The Court explained that while weight within the normal range and not resulting from a physiological disorder was not an ADA impairment, courts have found that "morbid obesity [is] an impairment." Id. (emphasis in original) (citing Cook, 10 F.3d at 25, and Smaw v. Va. Dep't of State Police, 862 F. Supp. 1469 (E.D. Va. 1994)). In ruling against the plaintiffs in Andrews, the panel noted that the officers in question had not "alleged that their weight . . . [was] beyond a normal range" or "that they suffer from a physiological disorder (which, for example, has produced excessive weight or lack of fitness despite their individual efforts)." Andrews, 104 F.3d at 810. Rather, this Court found, the plaintiffs in question suffered only from having "physical characteristics either being marginally above a weight limit or marginally below a fitness standard which Ohio has deemed inconsistent with the job requirements of certain law enforcement positions." Id. Thus, the Court ruled, the officers had not successfully shown that they had a cognizable impairment or that their employer had perceived them as having one. Id. "That is, they have not alleged a weight or fitness status which is other than a mere, indeed possibly transitory, physical characteristic; they have not alleged a status which is the result of a physiological condition or otherwise beyond the range of ‘normal.'" Id. (emphasis added). This Court in Andrews thus endorsed the proposition that morbid obesity can indeed be an ADA impairment – even if simply being overweight cannot. Other circuit court cases support this view, as well. See, e.g., Francis v. City of Meriden, 129 F.3d 281, 285-88 (2d Cir. 1997) (explicitly endorsing Andrews and the EEOC's weight-related impairment rules, distinguishing between "moderate obesity" and "morbid obesity," and acknowledging that "a cause of action may lie against an employer who discriminates against an employee on the basis of the perception that the employee is morbidly obese"); Cook, 10 F.3d at 23 (upholding a jury's finding that an employer had regarded a morbidly obese former employee as suffering from an ADA impairment); Gaddis v. Oregon, 2001 WL 1254922, **1 (9th Cir. 2001) (summarily concluding in an unpublished opinion that an appellant "suffers from morbid obesity, a disability under the [ADA]"). We are aware of no circuit court cases expressly holding to the contrary. In granting Watkins's summary judgment motion, the district court missed or ignored the critical analytical nuances in Andrews and these other cases which distinguish between normal weight deviations and morbid obesity. The district court instead inaccurately cited Andrews for the incomplete proposition that "‘obesity does not equal an impairment.'" (R.80, District Court E&O pg.8, Apx. ) (citing Whaley v. S.W. Student Transp. L.C., 2002 WL 999382, *3 (N.D. Tex. 2002), in turn citing Andrews.) The district court consistently referenced and analyzed only whether "the obese" are covered under the ADA, whether Grindle's "obesity" was caused by some other physiological disorder, and whether "obesity" generally is an impairment and could be a disability. (R.80, District Court E&O pg.6, Apx. ) ("This Court must determine whether obesity, especially obesity that is not alleged to be related to a physiological cause, is a physical impairment that limits a major life activity.") The district court concluded that it was not. (R.80, District Court E&O pg.1, Apx. ) (". . . [T]he Court believes that obesity, and especially non-physiologically caused obesity, is not an ‘impairment' covered by the [ADA] . . . ."); (R.80, District Court E&O pg.8, Apx. ) ("This Court agrees that the ADA does not normally protect the obese, even under a ‘regarded as' theory, and speculates that the rare circumstance where obesity is a disabling impairment is where it has a physiological cause."); (R.80, District Court E&O pg.10, Apx. ) ("[T]he ADA does not normally apply to obesity . . . .") The district court contravened the teaching of Andrews in reaching this conclusion and failing to consider the legal significance of one's having morbid obesity, specifically. The EEOC proffered uncontradicted evidence that Grindle suffers from morbid/gross exogenous/clinically severe obesity. The district court completely ignored this evidence and decided that Grindle's condition was not statutorily protected simply because "obesity" not caused by a physiological disorder is not covered under the ADA. Indeed, the words "severe," "clinically severe," "morbid," and/or "gross exogenous" were never once used, anywhere, in the district court's opinion to modify the term "obesity." In addition, the cases the district court relied upon to support the assertion that "obesity" is not covered under the ADA either (1) do not stand for the propositions cited; (2) do not involve severely or morbidly obese individuals; or (3) fail to address the critical ADA distinction between those who are merely overweight (i.e., those with normal, non-physiologically caused weight deviations) and those who are clinically/severely/morbidly obese. These cases are therefore easily distinguishable. See, e.g., Johnson v. Baylor, 129 F.3d 607 (5th Cir. 1997) (cited by the district court as "affirming a grant of summary judgment where plaintiff claimed protection for chronic obesity under the ADA," but affirming the district court only in an unpublished "table" decision without analysis); Francis v. City of Meriden, 129 F.3d 281, 282, 285-88 (2d Cir. 1997) (refusing only to find that a firefighter, whose weight had fluctuated between 217 and 247 pounds, had been "regarded as" disabled because of his failure to meet an employer-imposed 188-pound weight limit); Torcasio v. Murray, 57 F.3d 1340, 1353-55 (4th Cir. 1995) (holding merely that it was not "clearly established" that the ADA applied to obese individuals, but failing to mention (much less analyze) any possible distinction between simple obesity and morbid obesity for these purposes); Whaley v. S.W. Student Transp., L.C., 2002 WL 999382, *3 (N.D. Tex. 2002) (summarily concluding – with no analysis except citations to Johnson, Andrews, Francis, and Torcasio and parentheticals mischaracterizing the holdings of these cases – that "obesity is not a disability"). By relying on these inapposite and distinguishable opinions, the district court applied erroneous legal principles to this case. In blurring the distinction between moderate obesity and morbid obesity – and in ignoring the EEOC's evidence showing the severity of Grindle's lifelong condition – the district court failed to view the record evidence in the light most favorable to the EEOC. In this circuit, after Andrews, morbid obesity clearly can be an ADA impairment. The evidence the EEOC presented was at least sufficient to create a genuine issue on the material fact of whether Grindle's condition qualified as such. The district court's refusal to acknowledge this genuine issue of material fact constituted reversible error. D. The District Court Committed Reversible Error by Failing to Recognize that the EEOC's Evidence Created Genuine Issues of Material Fact as to Whether Watkins Believed Grindle's Morbid Obesity Substantially Limited Him in Working To survive summary judgment, the EEOC also had to create a genuine issue as to whether Watkins believed Grindle's morbid obesity substantially limited Grindle in a major life activity. See Sutton, 527 U.S. at 489 (allowing "regarded as" plaintiffs to prove coverage by showing that their employer "mistakenly believe[d] that an actual, nonlimiting impairment substantially limit[ed] one or more major life activities"); Compl. Man. § 902.2(c)(5) n.16 (emphasis added) ("Whether severe obesity rises to the level of a disability will turn on whether the obesity substantially limits, has substantially limited, or is regarded as substantially limiting, a major life activity."). Because the EEOC presented evidence from which a fact finder could conclude that Watkins believed Grindle's morbid obesity substantially limited his ability to work, summary judgment should have been denied here. In ruling to the contrary, the district court again applied an improper legal standard, ignored this Court's precedents on "regarded as substantially limited in working," and contravened settled summary judgment principles by failing to view the record evidence in the light most favorable to the EEOC. These errors require reversal. According to the Supreme Court in Sutton: When the major life activity under consideration is that of working, the statutory phrase "substantially limits" requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs. . . . To be substantially limited in the major life of activity of working . . . one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs. Sutton, 527 U.S. at 491-92; see also Murphy, 527 U.S. at 523 (same); Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 200 (2002) (same); see also 29 C.F.R. § 1630.2(j)(3)(i) (an individual is substantially limited in working if the individual is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities"); 29 C.F.R. pt. 1630 app. § 1630.2(j) (same); Compl. Man. § 902.4(c)(2) (same). In the context of a claim that an employee is regarded as substantially limited in working, the leading Sixth Circuit case is Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001). Ross was a frozen foods salesman for Campbell Soup who suffered numerous back injuries which caused him to miss quite a bit of work. During a performance evaluation, one of his supervisors told him that "[w]e can't have any more of this back thing." Company officials also allegedly offered to have Campbell Soup "experts" help Ross find a new job. Ross was placed on probation and given new, and apparently unrealistic, sales goals. In addition, around this time, Campbell Soup management circulated a memo recommending that Ross not be given a bonus. At the top of the memo, one of Ross's supervisors scrawled a note asking "[w]hen can we bring this problem person to a termination status. P.S. – Back Case." Ross, 273 F.3d at 702-06. Ross was eventually terminated. He brought a "regarded as substantially limited in working" claim. In reversing the district court's grant of summary judgment for Campbell Soup, this Court observed that: Proving that an employee is regarded as disabled in the major life activity of working takes a plaintiff to the farthest reaches of the ADA. It is a question embedded almost entirely in the employer's subjective state of mind. Thus, proving the case becomes extraordinarily difficult. Not only must a plaintiff demonstrate that an employer thought he was disabled, he must also show that the employer thought that his disability would prevent him from performing a broad class of jobs. As it is safe to assume employers do not regularly consider the panoply of other jobs their employees could perform, and certainly do not often create direct evidence of such considerations, the plaintiff's task becomes even more difficult. Yet the drafters of the ADA and its subsequent interpretive regulations clearly intended that plaintiffs who are mistakenly regarded as being unable to work have a cause of action under the statute. Ross, 237 F.3d at 709. This Court in Ross reasoned that "an individual may fall into the definition of one regarded as having a disability if an employer ascribes to that individual an inability to perform the functions of a job because of a medical condition when, in fact, the individual is perfectly able to meet the job's duties." Id. at 706. The Court found that the "Back Case" memo from Campbell Soup management was "perhaps the most damning of a series of comments demonstrating the prominence of Ross's back condition in Campbell's decisions regarding his employment." Id. at 707. The Court explained that "[t]he ADA was enacted, in part, to eliminate the sort of stereotyping that allowed employers to see their employees primarily as their disabilities and not as persons differently abled from themselves." Id. This Court noted that "there is at least a genuine issue of material fact that Campbell Soup . . . regarded Ross through the lens of his medical condition . . . [and] [i]t is precisely this sort of limited vision that the ADA seeks to eliminate." Id. According to Ross, evidence that the employer has created a pretextual justification for firing an employee can also help to establish that the employer regarded the employee as substantially limited in working. This Court reasoned: Because, under the "regarded as" prong, a plaintiff's showing that he is disabled "turns upon the employer's state of mind and how it thought Ross's back condition affected his performance as an employee, evidence of the employer's state of mind that would ordinarily be used to prove motive or discriminatory intent may also be probative of Ross's status as a person with a disability as defined by the ADA. Thus, evidence that the company created a pretextual reason for firing Ross may also tend to prove that it regarded Ross as a disabled employee. Id. at 708-09; see id. at 709 (noting that "the implications of Campbell's pretext are twofold: first, it provides evidence as to the company's discriminatory intent in firing Ross, and second, because it tends to prove discriminatory intent, the evidence of pretext may also tend to show that Campbell . . . regarded Ross as disabled"). Ross also emphasized that, in a "regarded as" case, a jury should normally determine whether the employee is protected by the ADA because the employer regarded the employee as substantially limited in working. Ross noted that: [W]hen [an] individual seeks to proceed under the "regarded as" theory, we must look to the state of mind of the employer against whom he makes a claim. Under the "regarded as" prong of the ADA, membership in the protected class becomes a question of intent. And . . . that question – i.e., the employer's motive – is one rarely susceptible to resolution at the summary judgment stage. Id. at 706. This Court in Ross held that whether Campbell Soup "regarded Ross as significantly limited in his ability . . . to work in a broad class of jobs, not simply his job at Campbell Soup . . . is a question of Campbell's state of mind that is more appropriate for the jury than for the judge." Id. at 709. In short: [i]n cases such as this one, where there is substantial evidence that an individual's medical status played a significant role in an employer's decision to fire that individual, combined with evidence that the employer concocted a pretextual justification for that firing, the need for more extensive factual inquiry into whether the employer engaged in unlawful discrimination is especially acute. We therefore conclude that Ross has presented sufficient evidence to create a genuine issue of material fact as to the company's state of mind during the events that led to his firing. The resolution of that issue is properly left to the jury. Ross, 237 F.3d at 709; see also Cotter, 287 F.3d at 600 (indicating that after Ross, a jury should be allowed to determine whether an employer regarded an employee as substantially limited in working if "there [is] substantial evidence that the plaintiff's medical status significantly influenced his employer's decision to terminate him"); Moorer, 398 F.3d at 481 (same). In this case, the EEOC offered just the kind of evidence this Court in Ross deemed sufficient to get to a jury – "substantial evidence that [Grindle's] medical status played a significant role in [Watkins's] decision to fire [him]" (i.e., that Watkins came to view Grindle "through the lens of his medical condition") and "evidence that [Watkins] concocted a pretextual justification for that firing." Ross, 273 F.3d at 709. After Grindle's ladder accident, Watkins started to see Grindle as a problem employee whose weight precluded him from safely performing his job, was draining the company workers' compensation budget, and was posing an unacceptable liability risk. For instance: • Opatich told Thatcher he was annoyed at being "stuck" with the worker's compensation costs stemming from Grindle's ladder accident – which Opatich believed was caused by Grindle's weight. • Company e-mails and accident forms emphasized Grindle's weight (e.g., noting "Driver's weight is approximately 330 lbs." and "[T]his man weighs over 400 lbs."). • Dr. Lawrence warned Grindle and Grindle's wife that Grindle's weight would put him in a wheelchair within a year. (This warning proved inaccurate. It is undisputed that Grindle remains able to walk.) • Dr. Lawrence's letter indicated that Grindle's weight was the significant cause for concern (e.g., the letter stated that "on physical examination, the most notable item is that the patient weighs 450.5 [pounds]"). • Linebarier and Thatcher believed that Grindle's weight-related condition rendered him an unacceptable liability risk. Watkins insisted it put Grindle on "safety hold" and terminated him because: Dr. Zancan's "no restrictions" release was not acceptable; Grindle had trouble "squatting" and "duck walking" during his June 1996 examination; Grindle had a "limited range of motion" in his knee; and/or Grindle's knee had not fully healed. However, Watkins's explanations have varied over time and are implausible. For example: • Dr. Zancan testified, contrary to Watkins's claim, that Watkins never even asked him to fill out a job-specific release. • An e-mail from Opatich indicates that Watkins intended to send Grindle for a return to work physical with Dr. Lawrence all along (i.e., whether Dr. Zancan completed the Watkins-requested job-specific release or not). • During Grindle's June 1996 return to work physical, before Dr. Lawrence even examined Grindle's knee – but certainly after he had had a chance to visually take note of Grindle's weight – Dr. Lawrence told Grindle that he was not going to be sending Grindle back to work. • Dr. Lawrence's June 1996 letter focused almost exclusively on Grindle's weight and indicated this factor alone – not Grindle's knee injury or any other cause – was the real reason Grindle was unfit to return to work (e.g., the letter analogized Grindle's condition to that of overweight professional athletes who are properly "cut" from the team and concluded that Grindle "needs to lose 200+ pounds to perform his job safely"). • Koppenhofer's e-mail explained that Dr. Lawrence's obesity-focused letter alone led to the "safety hold." • Koppenhofer's e-mail contained no reference whatsoever to Dr. Zancan's alleged failure to provide the Watkins-requested job-specific release (and certainly did not indicate that this alleged failure had anything to do with the decision to put Grindle on "safety hold"). • Watkins's counsel claimed that placing Grindle on "safety hold" was the "only viable option" given (among other things) Grindle's inability to "squat" and "duck walk," but Koppenhofer – who made the "safety hold" call – testified that this alleged limitation did not motivate his decision at all. • Watkins's counsel and Koppenhofer both emphasized that the "limited range of motion" in Grindle's knee was crucial to the "safety hold" determination, but Dr. Lawrence himself said that the "limited range of motion" comment in his letter was actually a reference to Grindle's back. • Thatcher – who with Linebarier ultimately made the decision to terminate Grindle – suggested that Grindle should do "whatever it took" to satisfy Dr. Lawrence by losing 200 pounds in 30 days – that he should even "run around the house or backyard," and/or "see a dietician" (intimating that only a weight- reduction – not a knee rehabilitation – strategy would enable Grindle to come back to work). • Thatcher specifically asked Grindle how heavy Grindle was when Dr. Lawrence weighed him in June 1996, told Grindle to find a "legal scale" to make sure Dr. Lawrence's assessment was accurate, and said Grindle should share any new weight information with Dr. Lawrence – clearly indicating that Grindle's weight, and nothing else, was the dispositive factor in Dr. Lawrence's and Watkins's decision to put Grindle on "safety hold" and later discharge him. • Thatcher denied ever telling Grindle that Grindle had to satisfy Dr. Lawrence to be able to return to work (despite notarized transcripts of his conversation with Grindle revealing that Thatcher told Grindle exactly that). • Thatcher proffered (counterintuitive) testimony that he told Grindle to "run around" and see a dietician because he thought those actions would help Grindle's knee heal. • Linebarier and Thatcher admitted they based their decision to terminate Grindle on Dr. Lawrence's obesity-focused letter. Under Ross, this evidence – showing that Watkins viewed Grindle through the lens of his medical condition, discharged Grindle because he was morbidly obese, and then concocted a pretextual justification for its actions – is compelling on the critical coverage issue here. That is, this evidence "create[s] a genuine issue of material fact as to the company's state of mind during the events that led to his firing." Ross, 237 F.3d at 709. As it did in Ross, this evidence warranted a jury determination on whether Watkins regarded Grindle as substantially limited in working. See id. at 706 (noting that the question of an employer's state of mind on this question "is one rarely susceptible to resolution at the summary judgment stage"). Having failed to consider or cite Ross – and having ignored all of the evidence proffered by the EEOC to meet the test this Court laid out in that case – the district court committed reversible error. There are additional grounds for finding that the EEOC proffered enough evidence to create a genuine issue on whether Watkins regarded Grindle as substantially limited in working. A plaintiff can also survive summary judgment on this question by showing that the limitations the employer subjectively perceived the employee as having would, if true, significantly restrict the employee's ability to do a class or broad range of jobs. In Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), the Supreme Court held that a mechanic who, because of high blood pressure, was believed to be ineligible for D.O.T. truck driver certification was not regarded as substantially limited in working. The Court reasoned that, since most mechanic jobs do not require D.O.T. certification, the fact that plaintiff was regarded as ineligible for such certification was insufficient to show that he was regarded as unable to do a broad class of mechanic jobs. Id. at 524. In reaching this decision, the Court did not ask whether UPS subjectively believed that plaintiff was unqualified to be a mechanic only for UPS or for others employers as well. Rather, the Court considered only whether the limitation, as perceived, would preclude him from working as a mechanic, a broad class of jobs. Id. Under Murphy, therefore, employees are covered by the ADA if the limitations the employer regards them as having would, if real, substantially limit their ability to do a broad class of jobs. Applying this standard from Murphy, the evidence here would support a finding that if Grindle was actually limited the way Dr. Lawrence and Watkins thought he was, he would be actually substantially limited in working. Watkins obviously believed Grindle could not perform any of the duties inherent in his truck driver/dock worker job (e.g., Dr. Lawrence's letter said so, Koppenhofer put him on "safety hold" because of this letter, Linebarier testified she did not think Grindle could perform any driving or dock work, etc.). The EEOC proffered an occupational analysis of the Dayton, Ohio area, prepared by its expert, Elvira Sisolak, concluding that the major elements of Grindle's truck driver/dock worker job represent important parts of two classes of jobs ("Truck Drivers" and "Helpers, Laborers, and Hand Freight Movers"). (R.41, Sisolak Decl. Ex.1 pgs.1-3, Apx. .) Sisolak also determined that the major elements of Grindle's Watkins job are present in many industries and thus represent a broad range of jobs, as well. (Id.); cf. Black v. Roadway Express, Inc., 297 F.3d 445, 453 n.12 (6th Cir. 2002) (recognizing "truck driving" as a class of jobs). Thus if (as Watkins erroneously believed) Grindle actually could not perform this truck driver/dock worker job, he would have been significantly restricted in his ability to perform a class or broad range of jobs and thus would have been substantially limited in working. This is enough, under Murphy, to survive summary judgment on whether Watkins regarded Grindle as such. Even if the EEOC had to show affirmatively that Watkins thought about Grindle's ability to perform jobs other than his specific truck driver/dock worker job, the EEOC made such a showing. In Henderson v. Ardco, 247 F.3d 645 (6th Cir. 2001), this Court found that "evidence that the defendant perceived there was no job [the employee could safely perform] at the [relevant workplace] gives an indication of the employer's perception about [the employee's] suitability for a class of relevantly similar employment." Id. at 654. Similarly and very recently, in Moorer v. Memorial Health Care System, 398 F.3d 469 (6th Cir. 2005), this Court again indicated that if an employer believed an employee's impairment rendered the employee unable to work for that employer, the employer "must also have recognized that such an impairment would have precluded [the employee] from performing a broad class of jobs." Id. at 484; see id. (evidence an employer thought an employee could not perform one job requiring a broad set of skills "permits the reasonable inference that [the employer] believed that [the impairment] rendered [the employee] incapable of performing a substantial number of [jobs involving similar skills]"). According to this Court, an "employer's perception about the plaintiff's ability to perform any work at [one particular workplace] also constituted competent evidence of the employer's perception about the plaintiff's ability to perform the same broad class of work anywhere else." Id. at 483-84 (citing Henderson and Ross). The EEOC proffered sufficient evidence, under Murphy and this Court's binding precedent, to survive summary judgment on whether Watkins believed Grindle's morbid obesity precluded him from performing a class or broad range of jobs for Watkins or anywhere else. For instance: • In January 1996, Dr. Lawrence told Grindle that he would be in a wheelchair within a year – a prediction indicating that Dr. Lawrence was certainly thinking beyond Grindle's specific Watkins job and believed Grindle would soon be unable to perform any truck driving or dock working anywhere at all. • Dr. Lawrence's June 1996 letter unambiguously indicated that Grindle's weight rendered him unsafe and categorically unable to perform any of his job's duties. • Dr. Lawrence's letter also warned about the effects of Grindle's gross obesity on Grindle's health and well-being generally – effects which would certainly affect work beyond Grindle's particular Watkins job (e.g., Dr. Lawrence's letter explicitly states that even though Grindle passed his D.O.T. physical, his job duties include "driving with frequent stop and go deliveries requiring frequent climbing in and out of the cab" which "place[d] an increased cardiovascular burden on this patient"). • Dr. Lawrence's letter also suggests that gross obesity is only beneficial in the Sumo wrestling field, and that Grindle's condition rendered him similar to professional athletes who should be "cut" from a team – suggesting that gross obesity may render Grindle unsuitable for work in any other area. • Dr. Lawrence testified he was afraid that Grindle "could be placed in any type of job . . . and that concerned me." • Koppenhofer's e-mail announcing Grindle's "safety hold" specifically states that "this driver [i.e., Grindle] ‘cannot meet the requirements for his job performance . . .'" • Linebarier stated she and Thatcher were concerned with "a sentence [in Dr. Lawrence's letter] that said basically, although this person is [D.O.T.] qualified, he is unsafe." Linebarier said to her, this meant Grindle could not safely either do dock work or drive. • Linebarier also testified that she and Thatcher were afraid that Grindle might, while driving a truck on the road or a towmotor on the dock, crash into a school bus or a Watkins employee. • The form terminating Grindle indicated that he was "no longer qualified to drive in the Watkins Motor Line System [because he is] medically unqualified." A jury could find based on this evidence that Watkins believed Grindle could not safely perform any of the duties inherent in his truck driver/dock worker job at Watkins or anywhere else. Thus, viewed in the light most favorable to the EEOC, the record evidence strongly suggests that Watkins believed that Grindle's morbid obesity precluded him from performing a class and/or a broad range of jobs. See, e.g., Moorer, 398 F.3d at 483-84; Henderson, 247 F.3d at 654. The district court did acknowledge there was "admissible evidence that could lead a jury to believe that Watkins believed Grindle was incapable of performing [his dock worker duties] due to his obesity." (R.80, District Court E&O pg.9, Apx. .) However, the district court also concluded there was "no evidence" that Watkins thought Grindle was incapable of performing as a truck driver. (R.80, District Court E&O pg.10, Apx. .) The district court emphasized that Dr. Lawrence had certified Grindle as meeting D.O.T. driver requirements. The district court also opined that it "defies even the logic of discrimination to conclude that an obese person who passes [D.O.T.] standards is not capable of driving a truck." (Id.) Of course, that is precisely the conclusion Dr. Lawrence, and Watkins, reached. The evidence cited above clearly indicates that, even though Grindle met D.O.T. requirements, Dr. Lawrence/Watkins still did not think he could do any dock work or driving. The district court ignored this evidence and, inexplicably, concluded that "[t]he only evidence is that Watkins perceived Grindle as capable of performing as a truck driver . . . ." (R.80, District Court E&O pg.9, Apx. .) Thus, to the extent the district court considered the relevant evidence here, it failed to view this evidence and draw inferences in the light most favorable to the EEOC. This was impermissible at summary judgment. Given this error, and because the EEOC's evidence was sufficient to support a finding that Watkins thought Grindle was incapable of serving as a truck driver and dock worker for Watkins or anywhere else (and thus that Watkins believed he was substantially limited in a class or broad range of jobs), the district court's grant of summary judgment was improper. CONCLUSION For all the reasons discussed above, the EEOC respectfully requests that this Court reverse the district court's grant of summary judgment in favor of Watkins, and remand this case for further proceedings. Respectfully submitted, ___________________________ DANIEL T. VAIL Attorney ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B) because this brief contains 13909 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect 9 in 14-Point Font in Times New Roman Style. ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov April 26, 2005 ADDENDA Appellant's Designation of Contents of Joint Appendix. . . . .A-2 Unpublished Opinions Cited in Appellant's Opening Brief. . . .A-6 EEOC v. DaimlerChrysler Corp., 2004 WL 2203586 (6th Cir. 2004). . . . . . . . . . .A-7 Gaddis v. Oregon, 2001 WL 1254922 (9th Cir. 2001). . . . . . . . . . .A-8 Johnson v. Baylor, 129 F.3d 607 (5th Cir. 1997) . . . . . . . . . . . .A-9 Whaley v. S.W. Student Transp. L.C., 2002 WL 999382 (N.D. Tex. 2002). . . . . . . . . . A-10 Zarek v. Argonne Nat'l Lab., 1998 WL 547288 (N.D. Ill. 1998). . . . . . . . . . A-11 APPELLANT'S DESIGNATION OF CONTENTS OF JOINT APPENDIX Appellant, pursuant to 6 Cir. R. 28(d), hereby designates the following filings in the district court's record as items to be included in the joint appendix: +------------------------------------------------------------------------+ | Record Entry | Description | Date | | | | | | | | Filed | |--------------+--------------------------------------------+------------| | | Current District Court Docket Sheet | | |--------------+--------------------------------------------+------------| | R.1 | Complaint | 10/30/2002 | |--------------+--------------------------------------------+------------| | R.28 | Deposition of Steven Grindle | 10/09/2003 | | | pgs. 45, 47, 63-69, 79, 82-83, 92-94, | | | | 127-128, 134-36, 139-49, 152-53, 157, 160, | | | | 164-70, 173, 177, 179; Ex.1; Ex.2; Ex.3; | | | | Ex.4; Ex.5; Ex.8; Ex.26; Ex.30 | | |--------------+--------------------------------------------+------------| | R.29 | Deposition of William Thatcher | 02/06/2004 | | | pgs. 13-17, 19, 22, 37-43, 50, 52-53, | | | | 55-56, 61-63; Ex.2 | | |--------------+--------------------------------------------+------------| | R.30 | Deposition of Carol Ryan | 02/06/2004 | | | | | | | pg. 53-54, 58-59, 62-63, 68-70 | | |--------------+--------------------------------------------+------------| | R.32 | Deposition of Williams Jennings | 02/06/2004 | | | pgs. 79, 106, 109-10; Ex.1; Ex.3; Ex.4 | | |--------------+--------------------------------------------+------------| | R.33 | Deposition of Michael Koppenhofer | 02/06/2004 | | | pgs. 7, 11, 46-47, 49-50, 52-53, 56, | | | | 59-60, 62, 68-76, 79-80; Ex.3; Ex.5 | | |--------------+--------------------------------------------+------------| | R.35 | Watkins's Motion for SJ, with Exhibits: | 02/09/2004 | | | | | | R.36 | * Exhibit B - Declaration of Frank Shuster | 02/09/2004 | | | pgs. 1-3; Ex.1; Ex.2; Ex.3; Ex.4; Ex.5; | | | | Ex.6; Ex.7 | | | | | | | R.36 | * Exhibit D - Declaration of William | 02/09/2004 | | | Thatcher pgs. 1-3 | | | | | | | R.36 | * Exhibit E - Declaration of Pamela | 02/09/2004 | | | Linebarier pgs. 1-2; Ex.3 | | | | | | | R.40 | EEOC's Response in Opposition to Watkins's | 03/18/2004 | | | Motion for SJ, with Exhibits: | | | | | | | R.41 | * Exhibit A - Deposition of William Shaw | 03/18/2004 | | | pgs. 1-4, 36-37; Ex.1 | | | | | | | R.41 | * Exhibit B - Declaration of Elvira Sisolak| 03/18/2004 | | | pgs. 1-3; Ex.1; Ex.1 Apx. A; Ex.2 | | | | | | | R.41 | * Exhibit C - Declaration of Thomas | 03/18/2004 | | | Feiertag pgs. 1-2 | | | | | | | R.41 | * Exhibit D - Declaration of James Neely | 03/18/2004 | | | pgs. 1-4; Ex.1; Ex.2; Ex.3; Ex.4; Ex.5; | | | | Ex.6; Ex.7; Ex.8; Ex.9; Ex.10; Ex.11; | | | | Ex.12; Ex.13 | | | | | | | R.41 | * Exhibit E - Declaration of Beverly | 03/18/2004 | | | Anderson pgs. 1-2; Ex.1; Ex.2; Ex.3 | | | | | | | R.41 | * Exhibit I - Declaration of Steven Grindle| 03/18/2004 | | | pgs. 1-5; Ex.1; Ex.2; Ex.3; Ex.4; Ex.5; | | | | Ex.6 | | | | | | | R.41 | * Exhibit J - Declaration of Karen Grindle | 03/18/2004 | | | pgs. 1-2 | | | | | | | R.41 | * Exhibit K - Declaration of Walter Zancan | 03/18/2004 | | | pgs. 1-3 | | | | | | | R.41 | * Exhibit L - Declaration of Michelle King | 03/18/2004 | | | pgs. 1-3; Attachments | | |--------------+--------------------------------------------+------------| | R.42 | Deposition of Walter Lawrence | 03/18/2004 | | | pgs. 17, 31-33, 67-68, 71-72, 74, 77-81, | | | | 91-94, 97-99, 107, 116, 120-21; Ex.2 | | | | (pgs.187-192, Doc. 652) | | |--------------+--------------------------------------------+------------| | R.43 | Deposition of Pamela Linebarier | 03/18/2004 | | | pgs. 38, 52-61 | | |--------------+--------------------------------------------+------------| | R.64 | Magistrate Judge's Report and | 06/15/2004 | | | Recommendations Recommending Watkins's | | | | Motion for SJ be Denied | | |--------------+--------------------------------------------+------------| | R.70 | Watkins's Objections to Magistrate Judge's | 07/02/2004 | | | R&R | | |--------------+--------------------------------------------+------------| | R.73 | EEOC's Response to Watkins's Objections | 07/22/2004 | |--------------+--------------------------------------------+------------| | R.80 | Entry and Order Granting Watkins's Motion | 12/13/2004 | | | for SJ | | |--------------+--------------------------------------------+------------| | R.81 | Clerk's Judgment in Favor of Watkins | 12/13/2004 | |--------------+--------------------------------------------+------------| | R.84 | Notice of Appeal | 02/08/2005 | +------------------------------------------------------------------------+ I certify, pursuant to 6 Cir. R. 30(f), that all documents designated above to be included in the joint appendix were properly made a part of the record. ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov April 26, 2005 UNPUBLISHED OPINIONS CITED IN APPELLANT'S OPENING BRIEF EEOC v. DaimlerChrysler Corp. 2004 WL 2203586 (6th Cir. 2004) Gaddis v. Oregon 2001 WL 1254922 (9th Cir. 2001) Johnson v. Baylor 129 F.3d 607 (5th Cir. 1997) Whaley v. S.W. Student Transp. L.C., 2002 WL 999382 (N.D. Tex. 2002) Zarek v. Argonne Nat'l Lab. 1998 WL 547288 (N.D. Ill. 1998) CERTIFICATE OF SERVICE I certify that on April 26, 2005, I served the requisite number of copies of this proof brief by mailing them first-class, postage prepaid, to the following: Leonard Green Clerk United States Court of Appeals for the Sixth Circuit 100 East Fifth Street Room 532 Potter Stewart U.S. Courthouse Cincinnati, OH 45202-3988 Katharine C. Weber Susan R. Bell Cors & Bassett 537 East Pete Rose Way Suite 400 Cincinnati, OH 45202-3578 ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov April 26, 2005 *************************************************** <1> All references to “R.” are to the corresponding Docket Entry on the district court’s docket sheet. <2> All references to “Apx.” are to the applicable page in the Joint Appendix. <3> Dr. Shaw found that Grindle has been “obese” since age 14, has been “severely overweight” since age 18, and has had “lifelong adult morbid obesity.” (R.41, Shaw Dep. Ex.1 pgs.7, 9, Apx. .) <4> It is now undisputed that at the time of the ladder accident, Grindle actually weighed somewhere between 395 and 430 pounds. (R.41, Shaw Dep. Ex.1 pg.13, Apx. .) <5> The Magistrate Judge did not decide whether the proper medical term for Grindle’s condition was “morbid obesity” or “gross exogenous obesity” (or something else). Instead, the Magistrate Judge used the term “morbid obesity” throughout her opinion because it “is simply a shorter phrase describing what appears to be the same physical condition, particularly if the record is viewed in the EEOC’s favor.” (R.64, Magistrate Judge’s R&R pg.14, Apx. .) Further, the Magistrate Judge found, any distinction between these terms “is not significant because Dr. Lawrence also informed Watkins that Grindle weighed 450.5 pounds, and that he needed ‘to lose 200+ pounds to perform his job safely.’” (R.64, Magistrate Judge’s R&R pg. 13, Apx. .) Thus, “the information in Dr. Lawrence’s letter sufficiently informed Watkins in June 1996 that Mr. Grindle’s extreme over weight – whether it is characterized as gross exogenous obesity or morbid obesity – prevented him from performing his job duties.” (Id.) <6> The Supreme Court articulated the rationale for safeguarding those who are “regarded as” disabled in School Board of Nassau County v. Arline, 480 U.S. 273, 283-84 (1987) (explaining that “Congress acknowledged that Society’s accumulated myths and fears about disability . . . are as handicapping as are the physical limitations that flow from actual impairment” – and that a visible impairment which does not actually limit a person’s functioning “could nevertheless substantially limit [a] person’s ability to work as a result of the negative reactions of others to the impairment”); see also EEOC Compl.Man., Section 902: Definition of the Term “Disability” (rev. 1999), available at http://www.eeoc.gov/policy/docs/902cm.html (“Compl. Man.”) § 902.8(a) (“The ADA is designed to prevent employment discrimination based on mere speculation and unfounded fears about disability. Thus [the “regarded as” prong of the definition of disability] protects individuals who experience employment discrimination because of myths, fears, and stereotypes associated with disabilities, even if the individuals’ physical or mental conditions do not meet the criteria of [actual disability].”). <7> Other cases address the question only peripherally. See Fraser v. Goodale, 342 F.3d 1032, 1039 (9th Cir. 2003) (holding that “eating” is a major life activity, but stating in the context of a “substantial limitation” discussion that “[w]e do not decide whether every diabetic is disabled, and we do not decide whether every severely obese person is not disabled”); Torcasio v. Murray, 57 F.3d 1340, 1342, 1344, 1353-55 (4th Cir. 1995) (finding, for purposes of deciding whether corrections officials enjoyed qualified immunity under the ADA and the Rehabilitation Act, that “it was not clearly established . . . that a[] [morbidly] obese individual . . . was entitled to the protections of either act”; but also conceding “there is an important distinction between the question of whether the acts apply to obese individuals, and the question of whether it was clearly established that the acts apply to obese individuals”); cf. Walton v. Mental Health Ass’n of S.E. Pa., 168 F.3d 661 (3d Cir. 1999) (appearing to assume, without analysis, that obesity is an ADA impairment, but noting that “[w]e have not recognized a cause of action against an employer who discriminates against an employee because it perceives the employee as disabled by obesity”). <8> Grindle’s condition has been referred to alternatively as “morbid obesity,” “gross morbid obesity,” “severe morbid obesity,” “gross exogenous obesity,” and “clinically severe obesity.” (R.1, Complaint pgs.1, 3, 4, Apx. ); (R.40, EEOC’s SJ Opposition pgs.1, 21, 23); (R.41, Shaw Dep. Ex.1 pgs.3, 7, 9, Apx. .) According to EEOC expert Dr. Shaw, there are various methodologies for classifying the degrees of obesity. A commonly used standard for desirable weights is defined as the midpoint of the range for medium-frame individuals as outlined in the 1983 Metropolitan Height and Weight Tables. Under this table, an individual of Grindle’s height would have an ideal weight of 161 to 184 pounds (assuming a large frame). Another, and perhaps the most popular, measure for identifying ideal weight is the “Body Mass Index” (“BMI”) (equaling one’s weight in kilograms divided by one’s height in meters squared). Various authorities have defined “massive obesity” or “morbid obesity” as being 100-pounds over one’s ideal weight or having a BMI greater than 40 to 45. (R.41, Shaw Dep. Ex.1 pg.8, Apx. .) “Severe obesity” has also been defined as body weight more than 100% over the norm. See, e.g., Compl. Man. § 902.2(c)(5)(ii) n.15 (explaining that “medical experts sometimes use the term ‘morbid obesity’ or ‘gross obesity’ to mean the same thing as ‘severe obesity,’ i.e., body weight more than 100% over the norm.”). At all relevant times, Grindle has been well over 100-pounds above his ideal weight, has weighed more than 100% more than this ideal weight, and has had a BMI of anywhere from 50 to 62. (R.41, Shaw Dep. Ex.1 pg.13, Apx. .) Dr. Shaw concluded Grindle has “clinically severe obesity” and “lifelong adult morbid obesity.” Dr. Lawrence diagnosed Grindle with “gross morbid obesity” and “gross exogenous obesity.” Grindle thus clearly meets all of the various medical definitions of “morbid obesity” and related descriptive terms. (Cf. R.64, Magistrate Judge’s R&R pgs.13-14, Apx. (noting the use of these various labels to describe Grindle’s condition is a distinction without a difference).) <9> Similarly, other district court cases that have refused to find that “obesity” is an impairment have neglected – as the district court did in this case – to acknowledge, appreciate, and apply the analytically significant distinction between moderate and more severe forms of obesity. See, e.g., as cited by Watkins below, Coleman v. Ga. Power Co., 81 F. Supp. 2d 1365, 1369 (N.D. Ga. 2000); Zarek v. Argonne Nat’l Lab., 1998 WL 547288, *3-4 (N.D. Ill. 1998); EEOC v. Tex. Bus Lines, 923 F. Supp. 965, 975-76 (S.D. Tex. 1996). <10> Watkins below tried to create a distinction between “gross exogenous obesity” – the diagnosis Dr. Lawrence assigned in his June 1996 letter – and “morbid obesity.” Watkins indicated that “gross exogenous obesity” was definitely not an impairment within the meaning of the ADA, even if perhaps (assuming for the sake of argument) “morbid obesity” was. (R.70, Watkins’s Objections to R&R pgs.5-6, Apx. .) However, Dr. Lawrence himself diagnosed Grindle as having “gross morbid obesity” in 1992. By 1996, Grindle’s weight had increased another 100 pounds. If Grindle was morbidly obese in 1992, therefore, he must have been morbidly obese in 1996 (when Dr. Lawrence performed Grindle’s return to work physical), as well. Thus, the mere fact that Dr. Lawrence used the term “gross exogenous obesity” – as opposed to “morbid obesity” – in his June 1996 letter is not dispositive on whether Grindle’s condition was an ADA impairment. Indeed, in his deposition, Dr. Lawrence himself used the terms interchangeably. (R.41, Lawrence. Dep. pgs.31-33, 92, Apx. .) Moreover, as the Magistrate Judge aptly noted, at summary judgment, the record evidence must be viewed in the light most favorable to the EEOC, and this standard compels the courts to treat “gross exogenous obesity” and “morbid obesity”as one in the same at this stage. (R.64, Magistrate Judge’s R&R pg.13-14, Apx. ) (indicating as much.) <11> See 29 C.F.R. § 1630.2(i) (the phrase “major life activities” means “functions such as . . . working”); 29 C.F.R. pt. 1630 app. § 1630.2(i) (same); see also Tim v. Wright State Univ., 375 F.3d 418, 423 (6th Cir. 2004) (recognizing “working” as a valid major life activity). <12> The EEOC regulations state that the following factors should also be considered in determining whether an individual is substantially limited in working: (1) the geographical area to which the individual has reasonable access; (2) the job from which the individual has been disqualified because of the impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (“class of jobs”); and/or (3) the job from which the individual has been disqualified because of the impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (“broad range of jobs in various classes”). 29 C.F.R. § 1630.2(j)(3)(ii); see also 29 C.F.R. pt. 1630 app. § 1630.2(j); Compl. Man. § 902.4(c)(2); Sutton, 527 U.S. at 492 (citing these rules); Swanson v. Univ. of Cincinnati, 268 F.3d 307, 317 (6th Cir. 2001) (applying these regulations). <13> A panel of this Court rejected this argument in an unpublished opinion. See EEOC v. DaimlerChrysler Corp., 2004 WL 2203586, **6 n.6 (6th Cir. 2004). The Court noted this position is “contrary to the law in this circuit and other circuits, which requires an ADA claimant to demonstrate that the employer thought that the perceived limitation would prevent the claimant from performing a class or broad range of jobs.” Id. (citing Ross). We believe this misconstrues Ross. There was actually no evidence in Ross whatsoever indicating that Campbell Soup consciously considered whether (or concluded that) Ross was precluded from performing a class or broad range of jobs. (Somewhat to the contrary, Campbell Soup managers offered to help Ross look for another job.) Yet this Court in Ross nevertheless reversed the district court and remanded the case for a jury trial. See Henderson, 247 F.3d at 653 (“In Ross . . . there was little evidence about the size and nature of the class of jobs the employer thought the plaintiff incapable of performing, but the Ross court nonetheless left the question of the substantiality of the perceived class to the jury.”); cf. Cotter, 287 F.3d at 599-600 (noting that in Ross, “we held that it is generally a jury question whether a perceived class of jobs is substantial enough to qualify as a ‘broad class’ under Sutton.”). Thus, DaimlerChrysler’s interpretation of Ross is questionable. That panel decision is also non-precedential. The EEOC is still of the view that, under Murphy (which is consistent with Ross) it can prove that Watkins regarded Grindle as substantially limited in working by showing that the limitations Watkins believed Grindle had would, if true, render him actually significantly restricted in performing a class or broad range of jobs.