Equal Employment Opportunity Commission v. J.B. Hunt Transport, Inc.

SOTOMAYOR, Circuit Judge,

dissenting.

This case is quite straightforward. Based upon a list of drugs and their poten*79tial side effects compiled by David White-side, a Hunt employee with no medical training, and a Medical Guidelines policy developed by Michael Gray, a former Red Lobster cashier with no medical training who was, nevertheless, Hunt’s Medical Ad-visor, Hunt determined that certain applicants were unfit to be truck drivers. The EEOC has provided substantial evidence that Hunt believed that these individuals were unfit to drive a truck, or, for that matter, to drive at all and were incapable of performing the broad class of jobs that fall under the classification “truck driving.” Based upon this showing, I would vacate the district court’s grant of summary judgment and hold that there is a genuine dispute of material fact with respect to whether the EEOC has established a pri-ma facie case of disability discrimination. I therefore respectfully dissent.

I agree with the majority that the issue in this appeal is whether the applicants were denied truck driving positions at Hunt because of their perceived disability within the meaning of the ADA. Ignoring significant evidence that Hunt perceived the applicants as more broadly limited, however, the majority holds that the EEOC has only provided evidence that Hunt perceived the rejected applicants as “ineligible for a specific position within Hunt.” Ante at 78. In doing so, the majority reasons that long haul trucking is not a sufficiently broad class of jobs such that a substantial limitation on an individual’s ability to be a long haul trucker would imply that the individual was disabled within the meaning of the ADA. See ante at 75-76. The majority asserts that a limitation on an individual’s ability to be a long haul truck driver does not substantially limit his or her ability to engage in the major life activity of working, as many other truck driving jobs are available for these individuals. See ante at 75-76. The majority does not, however, hold that truck driving in general is such a specific class of jobs that a substantial limitation on truck driving would fail to imply a disability; its holding relies solely upon an inappropriately narrow view that Hunt perceived the applicants as limited only in their ability to work as long haul truckers for Hunt.

Contrary to the majority’s assertion, the EEOC has produced significant evidence that Hunt regarded the applicants as substantially limited in the major life activity of working as truck drivers in general. An employer perceives an employee to be substantially limited in his or her ability to work if it believes the employee 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. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

29 C.F.R. § 1630.2(j)(3)(i); see also Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d 69, 82-83 (2d Cir.2000). Factors that may be considered under this standard include the geographical area to which an individual has reasonable access; the number and types of jobs utilizing similar training, knowledge, skills or abilities as the job from which the applicant has been disqualified; and the number and types of jobs not utilizing similar training, knowledge, skills or abilities from which the applicant will also be disqualified. 29 C.F.R. § 1630.2(j)(3)(ii).

If other jobs utilizing an individual’s skills are available, that person is not substantially limited in a class of jobs, even if this alternate employment would not allow the individual to showcase his or her special talents. Sutton v. United Air Lines, *80Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). In Sutton, the Supreme Court determined that plaintiffs applying for positions as global airline pilots could use their particular skills to obtain other piloting positions from which they were not disqualified, so these plaintiffs were not regarded as being shut out from an entire occupational class. Id. at 492-93, 119 S.Ct. 2139. In applying this rubric, the Second Circuit has found that practicing law is a broad occupational class, see Bartlett, 226 F.3d at 84, but that working as a policeman is a specific position within the class of investigative or security jobs, see Giordano v. City of New York, 274 F.3d 740, 749 (2d Cir.2001).

The EEOC has proffered evidence that the members of the plaintiff class have undergone specialized driver training, earned commercial drivers’ licenses, passed road tests and received medical certifications pursuant to DOT regulations. The set of jobs that call for these qualifications includes driving various types of small and large trucks, including tractor-trailers, moving trucks, and cargo vans. See Office of Management & Budget, Standard Occupational Classification Manual 220 (2000), available at http:// www.bls.gov/soc/soc_v3d0.htm. The Department of Labor classifies truck driving as a separate occupation within the overall category of “Transportation and Material Moving Occupations,” as does the Office of Management and Budget. Id. The Department of Labor estimated that in 2000 there were more than 3.3 million jobs that came under the heading of “Truckdriver and Driver/Sales Workers.”1 Bureau of Labor Statistics, Occupational Outlook Handbook 577 (2002-03), available at http://www.bls.gov/oco/pdf/ocos246.pdf. This evidence demonstrates that truck driving is a general field of employment rather than a specific position. Accord Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1154 (7th Cir.1998) (holding that driving a sleeper car is a specific job within the class of truck drivers); Best v. Shell Oil Co., 107 F.3d 544, 548 (7th Cir. 1997) (holding that truck driving is a class of jobs).

The majority does not reach the question whether truck driving is a class of jobs. Instead, the majority argues that Hunt only dismissed the applicants because “Hunt found the applicants unsuited for long-distance driving of Hunt’s 40-ton trucks on irregular, stressful schedules.” Ante at 76. Such hyperbole is inapposite. Whether long haul trucking is, in fact, different from other types of truck driving is not the central issue in this appeal; Hunt’s perception of the applicants as substantially limited in their ability to drive trucks, without further limitation to long haul truck driving, is the central issue.

Beyond this basic misconception, the majority also misrepresents the record by asserting that the evidence “does not indicate that Hunt perceived the applicants as more broadly limited.” Ante at 77. To the contrary, the EEOC provided significant evidence that Hunt believed that the applicants were unfit to drive trucks. Numerous drugs were listed on the DRL as “Not Permitted,”2 reflecting a belief that the *81applicant was prohibited by DOT regulations from driving a commercial vehicle while taking that particular medication. Dr. Cooper, Hunt’s physician consultant, testified with respect to one applicant that he did not feel it was “in this patient’s best interest to pursue this profession.” Interview records show that the company believed another applicant “would most likely have difficulty functioning in the lifestyle of a trucker.” Similarly, Dr. Cooper indicated with regard to another applicant that her “problems with sleep and concentration under stress are not very compatible with the lifestyle expected of a driver.” Applicant Joseph Lisa was told by a Hunt employee that he would “never drive for anybody,” and numerous other applicants were told that the medications they were taking made it unsafe for them to drive a truck, or drive in general. See, e.g., Curtin Deck, Exh. 13 (reviewer told applicant “that she could not be on [the medication] and drive [because] it can cause unsafe affect [sic]”); id. (reviewer told applicant “that he could not drive[] while on this medication”); id. (reviewer told applicant “that she cannot be on [the medication] and drive”); Curtin Deck, Exh. 20 (drug is “not permitted for driving”); id. (“[b]oth drugs are not approved for driving”); id. (reviewer “informed applicant that he can*82not take [the medication] and drive”); Curtin Deck, Exhs. 23, 25 (reviewer “informed applicant] that he could not take the medication] on [the] truck”); Curtin Deck, Adair Depo. (representative told applicant “it’s illegal to drive a truck with that [medication]”); Curtin Deck, Manning Depo. (representative told applicant “it was illegal for a driver to drive while on this medication”). The EEOC has provided sufficient evidence to create a factual issue whether Hunt perceived the applicants as broadly limited in their ability to work as a truck driver.

The majority explains this evidence by stating:

Although a few evaluators’ comments could be more broadly interpreted, there is no evidence that Hunt’s reviewers, relying on Hunt’s own DRL and drug lists to make a judgment on qualification for a position at Hunt, intended to make an evaluation beyond Hunt’s specific guidelines.

Ante at 76-77. In reviewing a grant of summary judgment, however, we do not refuse to credit a broad, but reasonable, interpretation of the evidence. Giordano, 274 F.3d at 749-50. Even if this were the standard, Hunt’s reviewers stated that one applicant would “never drive for anybody,” and made similar statements about many other applicants; it is difficult to imagine a clearer statement that the reviewers intended to say that the applicants were, in fact, substantially limited in their ability to work as a truck driver for any company.

The majority asserts that because Hunt’s reviewers were not the ultimate decision makers, the comments “simply are not sufficient to indicate that Hunt thought the applicants were more broadly limited.” Ante at 76-77. Again, this is a matter for the factfinder to decide. Hunt’s own employees stated on several occasions that applicants were unfit to drive; a factfinder reasonably could impute these statements to Hunt, even if these employees were not the ultimate decision makers. Hunt proffers no evidence that these unidentified “ultimate hiring authorities” did not share the reviewers’ perceptions or rely upon their statements about the applicants’ limitations. Indeed, Hunt does not argue otherwise; it simply argues that its employees’ statements implicitly refer only to jobs at Hunt. A fact-finder is certainly allowed to determine whether the statement that an applicant would “never drive for anybody” implicitly refers only to jobs at Hunt; it is not, however, this Court’s job to do so. In reviewing whether summary judgment is appropriate, this Court does not make factual determinations or refuse to credit legitimate inferences based upon the evidence presented, but views the evidence in the light most favorable to the nonmoving party. See Giordano, 274 F.3d at 746.

Hunt also argues that the statements of Dr. Cooper should not be imputed to it. The EEOC provides significant evidence that Hunt relied on Dr. Cooper’s advice, including, for example, a reviewer’s statement that the applicant was “disqualified per Dr. Cooper.” This suffices to provide a direct link between Dr. Cooper’s opinions regarding applicants and Hunt’s view of the applicants as disabled.

Finally, the majority’s argument that Hunt’s policy should not be imputed to other companies in determining whether the applicants were perceived as disabled is immaterial. Contrary to the majority’s assertion, this is not a case in which the potential imputation of Hunt’s policy to other companies would result in the applicants being regarded as “substantially limited in the major life activity of working only as a result of this imputation.” Sutton, 527 U.S. at 493, 119 S.Ct. 2139. It is Hunt’s explicit statement that it believed *83applicants to be unfit to drive a truck that supports Hunt’s perception of these individuals as substantially limited in their ability to drive a truck; no potential imputation is required. Thus, the EEOC has provided sufficient evidence that a factfin-der could reasonably conclude that Hunt regarded the rejected applicants as substantially limited in the major life activity of working, because Hunt regarded them as unfit to be truck drivers.

CONCLUSION

Because I find ample support in the record for the assertion that Hunt regarded the applicants as d substantially limited in the major life activity of working, and thus, the applicants were disabled within the meaning of the ADA, I respectfully dissent.

. Driver/Sales Workers drive trucks and work as sales agents for the goods they haul; both of these aspects are integral to their jobs. See Occupational Outlook Handbook 576-77 (2002-03).

. The majority discusses the categories "Not Permitted" and "Unsafe Effects” separately from the two condition-based categories, "Disqualifying Condition” and "Heart Condition.” Ultimately, the majority finds no legal distinction between the "condition” categories and the others. See ante at 78.

*81I agree that all four categories of medications on the DRL at issue here should be treated identically. I disagree, however, with the majority's statement that "the basis for the exclusion from employment was the use of a listed drug, not any potential ‘disability’ created by the treated disease.” Ante at 77-78. The EEOC has produced significant evidence that demonstrates the link between the drug categories and potential underlying conditions. For example, one of Hunt’s interviewers noted that the "applicant did not indicate the reason he is taking [the medication]. [N]eed to verify why he is on this medication.” Similar comments were made by reviewers with respect to applicants taking medications in each of Hunt's categories. See, e.g., Curtin Deck, Exh. 18 (applicant needs to provide "headach [sic] release ... [and a] statement that she is not taking [the medication] for depression”) ("Not Permitted” category); id. ("Sent to Brenda for review on cardiovasular [sic] condition”) ("Not Permitted” category); Curtin Decl., Exh. 20 ("the diagnosis and severity of her condition for which she takes the medication is considered disqualifying”) ("Unsafe Effects” category'); id. (applicant “will need to complete his treatments ... and send in all records when his condition is resolved”) (“Unsafe Effects” category); Curtin Deck, Exhs. 23, 25 (applicant needs to "provide a statment [sic] that ... his condition is fine w/out the meds”) (“Disqualifying Condition” or "Heart Condition” category); id. (Hunt "need[ed] all records on [applicant’s] condition”) ("Disqualifying Condition” or “Heart Condition” category). In addition, Hunt’s Medical Guidelines relating to mental and psychological conditions required that in order to qualify for a job, an applicant taking medication for depression must remain off the medication for thirty days and submit a letter from a doctor staling that he or she no longer suffers from the underlying condition. Contrary to the majority’s assertion, this evidence provides a direct causal link between the applicants’ underlying conditions and Hunt’s perception of the applicants as substantially limited in their ability to work as truck drivers.

To make a further distinction that it ultimately finds insignificant, the majority asserts that "[i]ndividuals suffering from the conditions treated with the 'Heart Condition’ or 'Disqualifying Condition’ drugs are potentially explicitly barred from truck driving by 49 C.F.R. § 391.41.” Ante at 76-77 & n. 5 Many of the conditions listed in this regulation only disqualify an individual if the condition is "likely to interfere with his/her ability to control and drive a commercial motor vehicle safely,” 49 C.F.R. § 391.41(b)(5), or otherwise suggest that an individualized determination of potential safety concerns is required. See id. § 391.41 (b)(6)-(12). In relying on these regulations to support Hunt's policy, the majority ignores the crucial difference between individualized determinations of driver safety and Hunt's explicit policy to create a per se bar from truck driving with respect to these individuals. Hunt’s policy simply assumes, without justification, that these individuals are unfit to drive trucks.