Duncan v. Washington Metropolitan Area Transit Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued En Banc September 27, 2000

Decided March 2, 2001

No. 99-7073

Jimmy L. Duncan,
Appellee

v.

Washington Metropolitan Area Transit Authority,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 95cv02360)

Bruce P. Heppen argued the cause for the appellant.
Cheryl C. Burke, Robert J. Kniaz and Mark F. Sullivan were
on brief.

Sally Dunaway and Melvin Radowitz were on brief for
amici curiae American Association of Retired Persons and

National Employment Lawyers Association. Paula A.
Brantner entered an appearance.

Ann Elizabeth Reesman was on brief for amicus curiae
Equal Employment Advisory Council.

Bruce M. Bender argued the cause for the appellee. Su-
zanne L. Lawrence entered an appearance.

Bill Lann Lee, then Assistant Attorney General, Jessica D.
Silver and Thomas E. Chandler, Attorneys, United States
Department of Justice, Philip B. Sklover, Associate General
Counsel, and Barbara L. Sloan, Attorney, Equal Employ-
ment Opportunity Commission, were on brief for amici curi-
ae United States of America and The Equal Employment
Opportunity Commission.

Before: Edwards, Chief Judge; Silberman,* Williams,
Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel
and Garland, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Concurring opinion filed by Circuit Judge Randolph, with
whom Circuit Judges Williams and Sentelle join.

Concurring opinion filed by Circuit Judge Tatel.

Dissenting opinion filed by Chief Judge Edwards.

Karen LeCraft Henderson, Circuit Judge: Appellant
Washington Metropolitan Area Transit Authority (WMATA)
challenges the district court's denial of its post-trial motion
for judgment as a matter of law in this discrimination action
brought by appellee Jimmy Duncan under the Americans
with Disabilities Act, 42 U.S.C. ss 12101 et seq., (ADA).
Because Duncan offered no significantly probative evidence
below of the number and types of positions available in his
local job market so as to demonstrate that his back impair-
ment substantially limits his ability to work, we hold that he

__________
* Judge Silberman took senior status on November 1, 2000 but
continues to participate as a member of this en banc court pursuant
to 28 U.S.C. s 46(c)(2).

failed to establish he was "disabled" under the ADA. The
district court therefore erred in denying WMATA's motion.

Duncan worked at WMATA for seven years. He began his
career there as a custodian in May 1986 and became an
Automated Fare Collector (AFC) parts runner in November
1991. In December 1992 Duncan was involuntarily trans-
ferred to the Elevator/Escalator branch [ELES] where he
was again employed as a parts runner. As a custodian,
Duncan was required to lift between 75 and 100 pounds, as an
AFC parts runner only about 30 pounds and as an ELES
parts runner over 100 pounds. On December 19, 1992, his
third night in ELES, Duncan, who had suffered a series of
back injuries between 1989 and 1992, reinjured his back. As
a result he was unable to continue in his heavy lifting ELES
job. Duncan's supervisor informed him no light lifting jobs
were then available and Duncan was placed briefly on sick
leave and then on leave without pay. He twice applied for a
vacant AFC parts runner position, in March and July 1993,
but without success.

In August 1993 Duncan received a letter from his supervi-
sor instructing him to meet with WMATA's Associate Medical
Director, Dr. Mary O'Donnell, and to take with him all of his
relevant medical records, including a statement from his
treating physician. Duncan consulted his treating physician
who referred him to a neurologist. Because the neurologist
was out of town, Duncan was unable to obtain a statement
from him before his August 19, 1993 meeting with O'Donnell.
At the meeting O'Donnell told Duncan he would probably be
discharged, apparently because he had failed to produce
documentation of his current condition. Duncan was dis-
charged in October 1993. In February 1994 he took a part-
time light lifting position with Hertz Corporation.

On December 22, 1994 Duncan filed suit in the district
court alleging WMATA violated the ADA by discharging him
on account of a disability and by failing to reasonably accom-
modate his disability. After a five-day trial the jury returned
a verdict on May 27, 1997, finding WMATA violated the ADA
as alleged and awarding Duncan compensatory damages of
$125,000 on his wrongful termination claim and $125,000 on

his reasonable accommodation claim. WMATA filed a post-
trial motion for judgment as a matter of law or, alternatively,
for a new trial. The district court denied the motion in a
memorandum opinion and order filed March 26, 1998. In
subsequent orders the court awarded Duncan reinstatement
with back pay, attorney's fees and costs and pre-trial interest.
On appeal WMATA challenges the denial of its post-trial
motion and the various awards.

"This court reviews de novo the trial court's denial of a
motion for judgment as a matter of law or, in the alternative,
for a new trial." Curry v. District of Columbia, 195 F.3d 654,
658-59 (D.C. Cir. 1999) (citing Swanks v. WMATA, 179 F.3d
929, 933 (D.C. Cir. 1999)). We will not disturb a jury verdict
"unless the evidence and all reasonable inferences that can be
drawn therefrom are so one-sided that reasonable men and
women could not disagree on the verdict." Id. at 659 (quot-
ing Smith v. Washington Sheraton Corp., 135 F.3d 779, 782
(D.C. Cir. 1998)). Evidence supporting the verdict, however,
must be "more than merely colorable; it must be significantly
probative." Id. (quoting Smith, 135 F.3d at 782). Applying
this standard, we conclude Duncan failed to produce signifi-
cantly probative evidence that he was "disabled" under the
ADA and that the verdict and awards below must therefore
be vacated.

In an ADA case with no direct evidence of discrimination
and where the defendant denies that its decisions were moti-
vated by the plaintiff's disability, this court applies the famil-
iar burden-shifting framework set out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Marshall v. Federal
Express Corp., 130 F.3d 1095, 1099 (D.C. Cir. 1997). Under
the McDonnell Douglas framework an ADA plaintiff must
prove that "he had a disability within the meaning of the
ADA, that he was 'qualified' for the position with or without a
reasonable accommodation, and that he suffered an adverse
employment action because of his disability." Swanks v.
WMATA, 179 F.3d 929, 934 (D.C. Cir. 1999). The ADA
defines a "disability" as "a physical or mental impairment
that substantially limits one or more of the major life activi-
ties of [an] individual." 42 U.S.C. s 12102(2)(A). Through-

out this litigation, Duncan has maintained that his degenera-
tive disc disease, which limits his lifting to no more than 20
pounds, fits this definition because it is a physical impairment
that limits his major life activity of "working." WMATA
responds that Duncan failed to establish at trial that his back
condition in fact "substantially limits" his ability to work.1
We agree.

In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999),
the United States Supreme Court provided guidance on the
meaning of the phrase "substantially limits":

The ADA does not define "substantially limits," but
"substantially" suggests "considerable" or "specified to a
large degree." ...

When the major life activity under consideration is
that of working, the statutory phrase "substantially lim-
its" 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 activity of working,
then, 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.

527 U.S. at 491-92 (citation omitted). This passage makes
clear that whether an impairment substantially limits the
major life activity of working depends primarily on the avail-

__________
1 WMATA concedes that Duncan has a physical impairment and,
until its en banc brief, did not dispute that working is a"major life
activity" under the ADA. In light of our holding that Duncan did
not demonstrate his impairment substantially limits his work activi-
ty, we need not and do not consider WMATA's belated assertion in
its supplemental en banc briefs that working is not a major life
activity but we assume arguendo that it is. Cf. Sutton v. United
Air Lines, Inc., 527 U.S. 471, 492 (1999) (making same assumption,
while noting that "there may be some conceptual difficulty in
defining 'major life activities' to include work").

ability of jobs for which the impaired person qualifies. The
Supreme Court further instructed that this is "an individual-
ized inquiry," id. at 483 (citing Bragdon v. Abbott, 524 U.S.
624 (1998)), and that courts should consider such factors as
"the geographical area to which the individual has reasonable
access and 'the number and types of jobs utilizing similar
training, knowledge, skills or abilities, within the geographical
area, from which the individual is also disqualified,' " id. at
491-92 (citing & quoting 29 C.F.R. pt. 1630, App.
s 1630.2(j)(3)(ii)(A), (B)2). In sum, to establish substantial
limitation of working activity under the ADA, a plaintiff must
allege and prove that in his particular circumstances, taking
into account the appropriate factors, his impairment prevents
him from performing a "substantial class" or "broad range" of
jobs otherwise available to him.

Duncan asserts he sufficiently demonstrated substantial
limitation through expert medical testimony that his back
condition and lifting restriction are permanent and through
evidence of his age, limited skills, education and experience
and of his inability to find comparable employment after his
discharge. The cited evidence tells us little or nothing,
however, about the number and types of jobs in the Washing-
ton, D.C. area for which Duncan is qualified and which are
therefore available to him. There may be numerous local
positions that do not require heavy or medium lifting--such
as the AFC parts runner position at WMATA for which
Duncan twice applied after his injury and for which he
acknowledges in his complaint he was qualified. See Amend-
ed Complaint at 3, 4 (filed March 6, 1996). Or there may be
very few such jobs. The jury was left in the dark with no
significantly probative evidence addressing the factors set out
in Sutton.3 Duncan points to his own testimony that he made
"inquiries" about or applied for truck driving jobs but that

__________
2 The Sutton Court declined to resolve whether deference is owed
to the Equal Employment Opportunity Commission's ADA regula-
tions, 527 U.S. at 480, but quoted this regulation's factors approv-
ingly, id. at 491-92.

3 We note that social security disability cases have found lifting
restrictions not to constitute a disability. See, e.g., Cruze v. Chater,

they all required heavy lifting.4 This sparse anecdotal evi-
dence, however, cannot support the required jury finding that
Duncan was substantially limited in his ability to find work
because his impairment disqualified him from a substantial
class or broad range of jobs in the Washington area. At most
Duncan's testimony shows that he was not qualified for the
particular kind of job--truck driver--for which he chose to
apply. It tells us nothing about whether he was qualified for
the many other jobs in the Washington metropolitan employ-
ment pool. See Sutton, 527 U.S. at 492 ("To be substantially
limited in the major life activity of working, then, one must be
precluded from more than one type of job, a specialized job,
or a particular job of choice."). Without evidence of the
number and kinds of jobs available to Duncan the jury had no
basis to find he was disqualified from a substantial class or
broad range of them. Because Duncan failed to offer evi-
dence demonstrating he was substantially impaired in work-
ing, the jury's liability verdict cannot stand.

In concluding that Duncan failed to meet his evidentiary
burden, we hold that the ADA requires a plaintiff in Duncan's

__________
85 F.3d 1320, 1322 (8th Cir. 1996) (affirming denial of benefits to
claimant who "possessed the residual functional capacity to perform
the physical exertional and nonexertional requirements of work
except for lifting and carrying of more than 20 pounds occasionally
or 10 pounds frequently" and who, according to a vocational expert,
therefore "could still perform work as a light cleaner, office helper
or messenger, or mail clerk," which positions "exist in significant
numbers in the national economy"); Lee v. Sullivan, 988 F.2d 789,
792 (7th Cir. 1993) (affirming denial of benefits to claimant based on
vocational testimony that person "with a tenth grade education,
average to borderline intellect, and depression who can perform
sedentary work with an option for alternate sitting and standing ...
could be a cashier in a convenience store, a security guard, and a
parking lot attendant" and that "there were approximately 1,400 of
these positions in the greater Milwaukee metropolitan area which
has a work force of 750,000").

4 Duncan testified he could not remember "any other types of
jobs or specifics about any types of jobs that [he] applied for."
Joint App. 136-38.

position to produce some evidence of the number and types of
jobs in the local employment market in order to show he is
disqualified from a substantial class or broad range of such
jobs; that is, the total number of such jobs that remain
available to the plaintiff in such a class or range in the
relevant market must be sufficiently low that he is effectively
precluded from working in the class or range. See Sutton,
527 U.S. at 491-92. The approach we adopt is consistent with
most other circuits'. See Santiago Clemente v. Executive
Airlines, Inc., 213 F.3d 25, 32-33 (1st Cir. 2000) (concluding
former flight attendant failed to show temporary hearing loss
was disability under ADA because she offered "no evidence of
how many jobs call for this ability, or that she was precluded
from any class of jobs"); Webb v. Clyde L. Choate Mental
Health & Dev. Ctr., 230 F.3d 991, 997 (7th Cir. 2000) (uphold-
ing summary judgment against psychologist suffering from
severe asthma, osteoporosis, and a weakened immune system
because he "ha[d] not presented evidence that his condition
prevents him from performing a class of jobs"); Taylor v.
Nimock's Oil Co., 214 F.3d 957, 961 (8th Cir. 2000) (conclud-
ing former cashier with 40 hour week and 10 pound carry
limit did not establish disability because she "presented no
evidence to create a genuine issue of material fact about
whether she could perform a class of jobs with her restric-
tions") (citing Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th
Cir. 1999); Helfter v. United Parcel Serv., Inc., 115 F.3d 613,
617-18 (8th Cir. 1997)); Colwell v. Suffolk County Police
Dep't, 158 F.3d 635, 645 (2d Cir. 1998) ("Without specific
evidence about 'the kinds of jobs from which [an] impaired
individual is disqualified,' the jury could not perform the
careful analysis that is necessary to determine that [a plain-
tiff] was substantially limited in his ability to work.") (quoting
Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir.
1994)); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207
(8th Cir. 1997) (holding "general lifting restriction imposed by
a physician, without more, is insufficient to constitute a
disability within the meaning of the ADA" with regard to
major life activity of working); see also Williams v. Channel
Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir. 1996)

("hold[ing], as a matter of law, that a twenty-five pound lifting
limitation--particularly when compared to an average per-
son's abilities--does not constitute a significant restriction on
one's ability to lift, work, or perform any other major life
activity"); Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir.
1996) ("[I]nability to perform heavy lifting does not render a
person substantially limited in the major activities of lifting or
working."); McKay v. Toyota Motor Mfg., U.S.A., Inc., 110
F.3d 369, 373 (6th Cir. 1997) (holding woman with carpal
tunnel syndrome and 20-pound lifting not disabled because
"at best, her evidence supports a conclusion that her impair-
ment disqualifies her from only the narrow range of assembly
line manufacturing jobs that require repetitive motion or
frequent lifting of more than ten pounds"). But see Welling-
ton v. Lyon County Sch. Dist., 187 F.3d 1150, 1155 (9th Cir.
1999) (holding evidence that impairment disqualified plaintiff
from "metal fabrication, welding, ... heavy activities, carpen-
try, ... the use of a variety of tools to do maintenance and
repairs, et cetera" coupled with his anecdotal testimony he
had to quit one plumbing job because he was "in too much
pain to even continue" raised triable issue of fact on disabili-
ty); cf. Burns v. Coca-Cola Enters., Inc., 222 F.3d 247 (6th
Cir. 2000) (upholding determination plaintiff was disabled
because of district court's finding impairment "precluded him
from performing at least 50% of the jobs that he was qualified
to perform given his educational background and experience"
where finding was apparently based solely on 23-pound lifting
limit and limited education and work experience); Mullins v.
Crowell, 228 F.3d 1305, 1314 n.18 (11th Cir. 2000) ("[E]xpert
vocational evidence, although instructive, is not necessary to
establish that a person is substantially limited in the major
life activity of working. Furthermore, a plaintiff could testify
from his or her own extensive job search whether other jobs
that he or she could perform were available in the geographi-
cal area."). Further, the evidentiary burden we place on
plaintiffs is not onerous. They need not necessarily produce
expert vocational testimony, although such evidence might be
very persuasive. In the proper case simple government job

statistics may suffice.5 We leave it to counsel in future ADA
cases to explore the various forms such evidence may take.
Here we hold only that Duncan failed to produce any sort of
significantly probative evidence on the subject.

For the preceding reasons, we reverse the district court's
denial of WMATA's motion for judgment as a matter of law.
We further vacate the judgment on the jury verdict entered
May 29, 1997 and the district court's post-trial orders award-
ing reinstatement, back pay, attorney's fees and costs and
prejudgment interest.

So ordered.

__________
5 Such statistics are readily available on the worldwide web. For
example, a number of different reports on job requirements in
specific local labor markets are available at low cost from the
website www.occustats.com.

 Randolph, Circuit Judge, with whom Circuit Judges
Williams and Sentelle join, concurring: I agree with Judge
Henderson's opinion for the court. Although I also agree
that the court should not decide whether working is a "major
life activity" within the meaning of the Americans with Dis-
abilities Act (ADA), 42 U.S.C. s 12102(2), see maj. op. at 5
n.1, I think we should recognize the difficulties the issue
presents.

The Supreme Court in Sutton v. United Air Lines, 527
U.S. 471, 492 (1999), also avoided deciding the question by
"[a]ssuming without deciding that working is a major life
activity...." The Court's statement indicates that it thought
the question was an open one. Before Sutton this was far
from certain. School Board of Nassau County v. Arline, 480
U.S. 273 (1987), a case arising under s 504 of the Rehabilita-
tion Act, 29 U.S.C. s 794, stated in dicta that a person could
be considered a handicapped individual if the person suffered
from a physical impairment such as cosmetic disfigurement.
Even though this sort of impairment "might not diminish a
person's physical or mental capacities," it "could nevertheless
substantially limit that person's ability to work as a result of
the negative reactions of others to the impairment." 480 U.S.
at 283. To support its point, the Court cited regulations
implementing the Rehabilitation Act, which listed "working"
as a major life activity. Id. at 283 n.10.

A section of the ADA provides that "nothing in this chapter
shall be construed to apply a lesser standard than the stan-
dards applied under title V of the Rehabilitation Act of 1973
... or the regulations issued by Federal agencies pursuant to
such titles." 42 U.S.C. s 12201(a). On the basis of this
section, Bragdon v. Abbott, 524 U.S. 624, 632 (1998), held that
the Court must "construe the ADA to grant at least as much
protection as provided by the regulations implementing the
Rehabilitation Act."

There may be ways of explaining the apparent inconsisten-
cy between Sutton on the one hand, and Bragdon and Arline
on the other. Sutton, for instance, referred to EEOC regula-
tions suggesting that "working be viewed as a residual life
activity, considered, as a last resort, only '[i]f an individual is
not substantially limited with respect to any other major life

activity.' " 527 U.S. at 492 (emphasis omitted) (quoting 29
C.F.R. pt. 1630, App. s 1630.2(j) (1998)). Sutton also identi-
fied "a conceptual difficulty": if a person claims to be exclud-
ed from work because of his impairment, it is circular for him
to answer--when asked the nature of his impairment--"ex-
clusion from work." Id.

Another set of problems stems from these circumstances:
to make "working" a major life activity is to create a residual
category, one that matters only if the individual is not suffer-
ing from some serious physical or mental impairment. (If the
individual is so suffering there is no need to consider working
as a separate category. See Taylor v. Phoenixville Sch.
Dist., 174 F.3d 142, 152 (3d Cir. 1999); McAlindin v. County
of San Diego, 192 F.3d 1226, 1233 (9th Cir. 1999).) When
"working" is used in this way, the existence of a disability will
necessarily turn on factors other than the individual's physical
characteristics or medical condition. To illustrate, suppose
there is an economic downturn and unemployment is high.
Then more people will be found to be disabled as compared
with a period when the gross domestic product is growing and
unemployment is low. Why? Because the less likely it is
that a person can find work the more likely that he is
substantially limited in the major life activity of working--
that in other words he suffers from a disability. See Sutton,
527 U.S. at 491. One must wonder whether people consid-
ered disabled in a poor economy can become not disabled if
the economy turns around and more jobs become available.
One must wonder as well how this can be squared with the
ADA's express purpose of supplying "clear, strong, consis-
tent, enforceable standards addressing discrimination against
individuals with disabilities." 42 U.S.C. s 12101(b) (italics
added). Geographic disparity also cannot be avoided. Take
two identical individuals with identical impairments working
for the same company. One works in a sparsely populated
rural area, the other in a large metropolis. The individual in
the rural area would wind up being classified as disabled
under the ADA more readily than the person in the major
metropolitan area where more jobs are available.

From the employer's point of view, the standards will
hardly appear "clear," 42 U.S.C. s 12101(b). When "work-
ing" is the allegedly impaired major life activity, how is the

employer to determine whether the employee is disabled (and
thus entitled to a reasonable accommodation)? The employer
certainly cannot tell just by looking at the employee, or by
consulting medical records, or by insisting upon a physical
examination. Disability will depend on the job market, on
whether there are jobs in some undefined region "utilizing an
individual's skills (but perhaps not his or her unique talents),"
Sutton, 527 U.S. at 492, jobs for which the employee is
qualified. Exactly how the employer is to make that determi-
nation is far from certain. Suppose the employer does not
acquire the information. Could the employer still be found to
have discriminated "because of" a disability, as the ADA
requires for liability, if the employer does not know the
employee's job prospects? See 42 U.S.C. s 12112(a).

The problems just mentioned, and others, need to be
considered before we decide whether to join the two other
circuits which, after Sutton, treat "working" as a major life
activity under the ADA. See Bartlett v. New York State Bd.
of Law Exam'rs, 226 F.3d 69, 80 (2d Cir. 2000); EEOC v. R.J.
Gallagher Co., 181 F.3d 645, 654 (5th Cir. 1999).

 Tatel, Circuit Judge, concurring:

I agree that the verdict in Duncan's favor cannot stand. I
write separately to explain my view of the precise nature of
the burden that Sutton v. United Air Lines, Inc., 527 U.S.
471 (1999), places on ADA plaintiffs.

Sutton describes the standard for proving that an impair-
ment " 'substantially limits' ... the major life activity of
working":

When the major life activity under consideration is
that of working, the statutory phrase "substantially lim-
its" requires, at a minimum, that plaintiffs allege they
are unable to work in a broad class of jobs. Reflecting
this requirement, the EEOC uses a specialized definition
of the term "substantially limits" when referring to the
major life activity of working:

"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 work-
ing." 29 C.F.R. s 1630.2(j)(3)(i).

... To be substantially limited in the major life activity
of working, then, 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 per-
haps 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.

527 U.S. at 491-92. This passage gives plaintiffs attempting
to prove disability on the basis of a substantial limitation in
the major life activity of working a choice: they may demon-
strate that their impairment excludes them from "either a
class of jobs or a broad range of jobs in various classes." As
the penultimate sentence explains, plaintiffs attempting to
prove exclusion from a "class of jobs" must show that their
impairment disqualifies them from jobs utilizing their skills.
In Sutton, for example, the Supreme Court said that airline

pilots who have impairments that preclude them from work-
ing as global pilots but who can nonetheless hold "a number
of other positions utilizing [their] skills, such as regional pilot
and pilot instructor" cannot claim to be substantially limited
in the major life activity of working. Id. at 493. According
to the final sentence in the Sutton passage, plaintiffs attempt-
ing to prove exclusion from a "broad range of jobs"--the
second of the two options--must show that there is not a
"host" of different types of jobs available to them. As an
example of a person who might claim to be precluded from a
broad range of jobs, the EEOC Interpretive Guidance de-
scribes an individual who "has an allergy to a substance found
in most high rise office buildings, but seldom found else-
where, that makes breathing extremely difficult." 29 C.F.R.
pt. 1630, App. s 1630.2(j). Of course, after Sutton, such a
person would also have to show that jobs not in high rise
buildings are unavailable, leaving some doubt as to whether
plaintiffs would any longer attempt to make such a claim.

Duncan claimed only exclusion from a class of jobs. To
prove his case, Duncan thus needed to show that the class of
jobs from which he alleged preclusion was "broad" or "sub-
stantial," and not limited to jobs utilizing his "unique talents."
Sutton, 527 U.S. at 491-92. Presenting evidence of his back
injury and lack of formal training or education, he proved
only his inability to handle jobs requiring heavy lifting. As I
read Sutton, he also had to show that he could not handle the
broader class of jobs requiring manual labor, of which heavy
lifting is but a subclass.

Duncan could have satisfied his burden of proof by produc-
ing specific evidence either that he applied unsuccessfully for
non-lifting manual labor jobs (thus demonstrating that he was
unqualified for those jobs for some other reason) or that most
manual labor jobs require heavy lifting. He failed to do
either, testifying only as follows:

Q: When you were on unemployment did you make any
inquiries with any employers that had vacancies for truck
driver positions to determine if you could do the job?

 A: Yes. I would--I would check the vacancies--I mean
the unemployment, and I would call places, and jobs that
I thought I could do I would ask them what the job
entailed, and if it was to the point where I know I
wouldn't be able to do a lot of lifting I wouldn't--I
wouldn't inquire no more about it.

Q: Did any of the truck ... driving types of jobs that
you applied for, did they require heavy lifting?

A: Yeah, most all of them basically.

...

Q: Mr. Duncan, in addition to truck driving positions
that you may have made some inquiries about, do you
recall any other types of jobs or specifics about any types
of jobs that you applied for during that period of unem-
ployment?

A: I can't remember.

[J.A. 137-38]. Absent more "significantly probative" evi-
dence, see Smith v. Washington Sheraton Corp., 135 F.3d
779, 782 (D.C. Cir. 1998), no reasonable jury could have
concluded that Duncan was unable to perform manual labor,
i.e., that he was excluded from a substantial class of jobs.
From his testimony, the jury could have concluded that all
truck driving jobs require heavy lifting, but the record con-
tains nothing from which the jury could have concluded that
other manual labor jobs likewise require heavy lifting.

While I thus agree that the verdict in Duncan's favor
cannot stand, I think it important to emphasize that although
Sutton requires Duncan to have proven an inability to per-
form manual labor, it does not also require him to have shown
an inability to qualify for non-manual labor jobs in the area in
which he lives. Sutton would require such evidence of plain-
tiffs seeking to prove disability based on exclusion from a
"broad range of jobs," but that requirement does not apply to
plaintiffs like Duncan who seek to prove disability on the
basis of exclusion from a "class of jobs." 527 U.S. at 492.
Requiring such proof of plaintiffs like Duncan, moreover,
would convert the ADA inquiry from asking whether plain-

tiffs are precluded from classes of jobs to whether, as in the
Social Security disability benefits context, they are unable to
work at all. See 42 U.S.C. s 423(d)(1)(A) (defining "disabili-
ty" under the Social Security Act as "inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment") (emphasis add-
ed). Consider a surgeon claiming to be disabled under the
ADA because a physical or mental impairment precludes him
from a class of jobs. Like the airline pilot plaintiffs in
Sutton, although it would not be enough for the surgeon to
show that he could no longer perform surgery--he would
need to show that he was unable to practice medicine at all--
nothing in Sutton requires that he demonstrate the absence
of a "host" of non-medical jobs that he could handle, such as
office administration, food service, or maintenance. 527 U.S.
at 492. In other words, the surgeon could establish disability
under the ADA by showing only that, as Sutton puts it, "jobs
utilizing [his] skills (but perhaps not his ... unique talents)"
were unavailable. Id.

So too Duncan. He need not have demonstrated preclusion
from non-manual labor jobs; proving exclusion from the class
of jobs requiring manual labor would have been enough.
Because he failed to show even this, I concur.

Edwards, Chief Judge, dissenting: Congress passed the
Americans with Disabilities Act ("ADA") because, "historical-
ly, society has tended to isolate and segregate individuals
with disabilities, and, despite some improvements, such forms
of discrimination against individuals with disabilities continue
to be a serious and pervasive social problem." 42 U.S.C.
s 12101 (a)(2)(1994). The ADA was enacted "to provide a
clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities," and "to
provide clear, strong, consistent, enforceable standards ad-
dressing discrimination against individuals with disabilities."
42 U.S.C. s 12101(b)(1) & (2)(1994).

The ADA generally provides that

no covered [employer] shall discriminate against a quali-
fied individual with a disability because of the disability
of such individual in regard to job application procedures,
the hiring, advancement, or discharge of employees, em-
ployee compensation, job training, and other terms, con-
ditions, and privileges of employment.

42 U.S.C. s 12112 (a)(1994). A "qualified individual with a
disability" includes persons "with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds or desires." 42 U.S.C. s 12111(8)(1994). And "reason-
able accommodation[s]" include "job restructuring, part-time
or modified work schedules, [and] reassignment to a vacant
position." 42 U.S.C. s 12111(9)(1994).

In light of the general purposes and standards enunciated
in the ADA, appellate review of this case should have been a
simple matter. The plaintiff/appellee, Jimmy Duncan, was in
a job that everyone--including his attending physician, doc-
tors retained by WMATA, and his supervisors--knew that he
could not perform because of his physical disability. He
presented medical evidence of his physical disability to
WMATA. When a WMATA job opened up that he could
perform, parts runner in Automated Fare Collection, he
applied to be transferred to the position. He had held the
parts runner job previously; he was indisputably qualified to

perform the job; and the work required was within his
current physical ability. He also had seniority among the
competing candidates. He was denied the job, however, for
no reason. Under the ADA, WMATA should have offered
the parts runner job to Duncan, as a reasonable accommoda-
tion to his existing disability.

During oral argument before the court, WMATA's counsel
was asked to address the following hypothetical:

Assume an employee is disabled because, due to a freak
accident, one of his legs is amputated. As a result of this
disability, the employee is unable to perform his job with
WMATA. Subsequently, there is a job opening at
WMATA in a position that the disabled employee previ-
ously has held and is currently capable of performing
(because it requires no appreciable standing or walking).
The amputee requests a transfer to the job. Is WMATA
required to accommodate the disabled employee?

WMATA's counsel conceded that, under the ADA, the em-
ployer would be obliged to accommodate the disabled employ-
ee by offering him the job. Duncan's request merited an
equivalent response.

The problem in this case is that, under the ADA, a disabili-
ty is defined as "a physical or mental impairment that sub-
stantially limits one or more of the major life activities of
[an] individual." 42 U.S.C. s 12102 (2)(A) (1994) (emphasis
added). Congress has delegated to the Equal Employment
Opportunity Commission ("EEOC") the responsibility for is-
suing regulations to enforce the proscription against discrimi-
nation in employment under the ADA. 42 U.S.C. s 12116
(1994). In assuming this responsibility, the EEOC has pro-
mulgated regulations providing that "major life activities"
include

caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and work-
ing.

29 C.F.R. s 1630.2(i) (1999). It is fairly easy to determine
whether a person is disabled due to a physical impairment
that substantially limits his ability to walk. The same cannot

be said about physical impairments (beyond, say, walking,
seeing, hearing, speaking, and breathing) that substantially
limit a person's ability to work. Thus, the EEOC has ex-
plained that the substantial limitation inquiry with respect to
"working" entails an inability to work in a class of jobs or a
broad range of jobs in various classes as compared to the
average person having comparable training, skills, and abili-
ties. 29 C.F.R. s 1630.2(j)(3)(i).

The disabled employee in the aforecited hypothetical is
covered by the major life activity of "walking," so he need
only show that his walking is substantially impaired in order
to pursue a claim under the ADA. Duncan's ADA claim,
however, rests on the major life activity of "working," so he
faces a tougher burden. This disparate burden is hard to
fathom. Both men are physically impaired and their impair-
ments limit their abilities to work; and both men easily can
be accommodated. Nonetheless, Duncan is forced to show
that he is unable to work in a broad class of jobs or a broad
range of jobs in various classes in order to claim relief,
whereas the hypothetical employee need only show an inabili-
ty to perform a single job. Given the purposes of the ADA
and the similarities in the two situations, it is difficult to find
a meaningful difference between the hypothetical employee
and Duncan. Both the hypothetical employee and Duncan
should be accommodated because of their disabilities.

As the majority and separate opinions make clear, however,
"working" is a disfavored basis upon which to rest a definition
of major life activities. Indeed, even the Supreme Court,
albeit in dicta, has questioned whether "working" should be
considered a major life activity. See Sutton v. United Air
Lines, Inc., 527 U.S. 471, 492 (1999). There are undoubtedly
some conceptual difficulties in viewing work as a major life
activity. For example, an expansive view of work as a major
life activity might allow a person to claim a disability and
discrimination under the ADA if he/she is allegedly denied
work for a physical impairment, such as cosmetic disfigure-
ment, which does not rise to the level of an underlying
handicap. In this sense, "work" is arguably over-inclusive
when viewed as a major life activity, at least when considered

in conjunction with the principal purposes of the ADA. Nev-
ertheless, it is hard to believe that Congress intended to deny
a claimant like Duncan--a truly disabled person, who has
undisputed job limitations due to his physical impairment and
can easily be accommodated (much the same as with the
hypothetical employee)--redress under the ADA because his
claim rests on "work" as a "major life activity."

The result reached by the majority in this case invariably
will make "work" impermissibly under-inclusive when viewed
as a major life activity, in a way that appears to defy
Congress' mandate in enacting the ADA. The Supreme
Court may have some doubts about work as a major life
activity, but the Court has not declared the EEOC's regula-
tion unlawful. Unless and until this happens, claimants like
Duncan are entitled to full protection of the statute. In
short, as long as working is a major life activity, an employ-
er's responsibility to offer a reasonable accommodation to a
disabled employee like Duncan should be taken seriously.

I. Analysis

Quite apart from the foregoing analytical problems raised
by this case, I respectfully dissent from the judgment of the
majority because this is a case that no judge should take from
a jury. The jury considered the evidence presented by
Duncan and WMATA; there were no erroneous instructions
given to the jury; and the jury weighed the evidence and
found in favor of the plaintiff. In nullifying the jury verdict,
the majority has impermissibly encroached on the jury's
important fact-finding function, which is something that nei-
ther a trial judge, see Tri County Industries, Inc. v. District
of Columbia, 200 F.3d 836, 840, 842-43 (D.C. Cir. 2000), cert.
granted, 68 U.S.L.W. 3774 (U.S. Sept. 26, 2000) (No. 99-1953),
nor an appellate panel, see Boodoo v. Cary, 21 F.3d 1157, 1161
(D.C. Cir. 1994), is permitted to do.

The majority opinion is especially suspect, because the
judgment is based on a re-weighing of the evidence that was
before the jury. The case that Duncan presented to the jury

was adequate to survive a judgment as a matter of law, so
there is no basis for this court to second-guess the jury. And
it is somewhat unnerving to notice that this court showed
unbridled solicitude for the jury's role when considering a
highly debatable claim in Tri County Industries (in which the
city of Washington, D.C., was required to pay $5 million on a
jury verdict) and now see that same solicitude missing here in
a case involving a claim under the ADA.

A. Standard of Review

In considering whether to take a verdict away from a jury
and grant a judgment as a matter of law, a court may not
substitute its judgment for the jury's judgment in factual
determinations. See Boodoo, 21 F.3d at 1161 (D.C. Cir.
1994). As the Court recently reiterated, "[c]redibility deter-
minations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not
those of a judge." Reeves v. Sanderson Plumbing Products,
Inc., 120 S. Ct. 2097, 2110 (2000) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

Whether a judge is inclined in favor of one possible inter-
pretation of the evidence, over another plausible interpreta-
tion of the evidence, is of no moment. This court may enter a
judgment as a matter of law only when the evidence present-
ed at trial admits of a single inevitable interpretation. "It is
long settled that 'the jury's verdict will withstand challenge
unless the evidence and all reasonable inferences that can be
drawn therefrom are so one-sided that reasonable men and
women could not disagree on the verdict.' " Swanks v.
Washington Metro. Area Transit Auth., 179 F.3d 929, 933
(D.C. Cir.), cert. denied, 528 U.S. 1061 (1999) (quoting Scott v.
District of Columbia, 101 F.3d 748, 753 (D.C. Cir. 1996)).
This high threshold has not been met in this case. Based on
the evidence presented at trial, the jury reasonably deter-
mined that Duncan's physical impairment substantially limit-
ed him in the major life activity of working. Despite the
clear prohibition that a court must not replace a jury as trier
of fact, WMATA's case turns on asking this court to re-weigh
the evidence. At the very opening of his oral argument,

WMATA's counsel urged this court to weigh the medical
reports and physicians' testimony offered at trial so as to find
that Duncan was able to perform medium lifting. The argu-
ment was one that simply asked this court to make findings of
fact against the plaintiff, something that we have no authority
to do. Indeed, much of WMATA's argument to this court
was presented as if the judges on the appellate bench were in
a jury box. As the following analysis indicates, there is no
basis here to take this case from the jury.

B. Disability under the ADA

As noted above, under the ADA, a disability is "a physical
or mental impairment that substantially limits one or more of
the major life activities of [an] individual." 42 U.S.C. s 12102
(2)(A) (1994). And EEOC regulations provide that "work" is
a major life activity. 29 C.F.R. s 1630.2(i) (1999). Unless
and until the Supreme Court decides otherwise, working
remains a major life activity under the ADA. See Mullins v.
Cromwell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sinkler v.
Midwest Property Management, Ltd., 209 F.3d 678, 684 n.1
(7th Cir. 2000); Equal Employment Opportunity Comm'n v.
R.J. Gallagher Co., 181 F.3d 645, 654-55 (5th Cir. 1999).

EEOC regulations explain that a physical impairment sub-
stantially limits an individual's ability to work when 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. 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. s 1630.2(j)(3)(i). In addition, the following factors
may be considered in assessing whether a physical impair-
ment substantially limits a person's ability to work:

(A) The geographical area to which the individual has
reasonable access;

(B) The job from which the individual has been disquali-
fied because of an 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

(C) The job from which the individual has been disquali-
fied because of an 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).

Id. s 1630.2(j)(3)(ii).

There is no magical legal standard for measuring substan-
tial limitation. Clearly, the inability to perform lifting does
not automatically constitute an impairment that substantially
limits a person's ability to work. See, e.g., Thompson v. Holy
Family Hosp., 121 F.3d 537, 539 (9th Cir.1997) (holding nurse
who was restricted in her ability to lift but was able to work
in other nursing jobs was not substantially limited). Howev-
er, the inability to participate in significant lifting, taken in
the context of an individualized analysis, may substantially
limit an individual's ability to work. In evaluating substantial
limitation, a jury must engage in a context-dependent assess-
ment of the plaintiff's personal characteristics, education,
work history, and the available job market in order to assess
whether the plaintiff is excluded from a class of jobs or a
broad range of jobs across classes. See, e.g., Wellington v.
Lyon County Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999)
(finding issue of material fact exists regarding disability
where plaintiff's education was limited to a high school degree
and some trade school training, his work experience was
limited to manufacturing, construction, heavy maintenance
and plumbing, and no evidence was presented that jobs were
available in the job market for a person with comparable
abilities); Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 11-12
(1st Cir. 1999) (rejecting judgment as a matter of law against
plaintiff where plaintiff had only a high school education and
a work history of heavy physical labor, and physician testified
plaintiff was precluded from a lot of jobs); Mondzelewski v.

Pathmark Stores, Inc., 162 F.3d 778, 784 (3d Cir. 1998)
(explaining that "an individual's training, skills, and abilities
are taken into account in determining whether the individual
is substantially limited in the major life activity of working");
Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996)
(explaining "[a] person's expertise, background, and job ex-
pectations are relevant factors in defining the class of jobs
used to determine whether an individual is disabled"); Coch-
rum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th Cir. 1996)
(noting "[t]he physical restrictions Cochrum's physician
placed upon him--no overhead work, heavy lifting, or pulling
and pushing out from his body--might apply to a broad range
of jobs, and are more than job specific").

In this case, the jury was presented with evidence of
Duncan's personal characteristics, education, work history,
and the available job market in order to assess whether he
was excluded from a class of jobs or a broad range of jobs
across classes. It does not matter that WMATA disputed
some of what Duncan offered; what matters is that there was
evidence in the record supporting Duncan's claim. I agree
with my colleagues that Duncan did not present the strongest
case possible. However, I believe that there was enough
before the jury to justify its verdict in his favor.

C. The jury reasonably determined that Duncan was sub-
stantially limited in the major life activity of working

There is no serious doubt that Duncan was physically
impaired. Dr. Harvey N. Mininberg, an orthopedic surgeon,
diagnosed Duncan with degenerative disc disease. See Trial
Transcript at 18 (May 20, 1997). After he was injured while
working for WMATA, Dr. Mininberg authorized Duncan to
return to work, with the restriction that Duncan not lift more
than approximately 20 pounds. See id. at 25. Dr. Najmaldin
O. Karim, a neurosurgeon, confirmed both the diagnosis and
the lifting restriction. See id. at 122, 127. Duncan alleged
that this physical impairment substantially limited him in the
major life activity of working. Specifically, Duncan claimed
that as a result of his physical impairment, he was precluded
from the classes of jobs that included medium, heavy, and
very heavy lifting.

 There was sufficient evidence in the record for a reasonable
jury to determine that, based on Duncan's education, training,
work history, and efforts to find another job, Duncan's physi-
cal impairment substantially limited his ability to work. Dun-
can never received a high school diploma or completed his
GED. He went to trade school for a year and a half, but
never finished the training. He had no other formal training
or education. He had no computer training. He had no
clerical or office skills. He could barely type. See Trial
Transcript at 127-28 (May 19, 1997).

Duncan was employed in heavy labor jobs throughout his
working life. Before working for WMATA, he worked in
furniture factories, in a box company, in a glass company, in
construction, and in a company that provided the physical
settings for functions and meetings. He was a physical
laborer. Every one of his jobs involved significant lifting.

After Duncan injured his back while working for WMATA
and WMATA terminated him, Duncan sought jobs that were
of a light duty nature. Duncan testified that during the nine
months he was receiving unemployment compensation, he
looked for jobs that were not strenuous. See id. at 129.
With his back injury, Duncan knew he could not perform the
kinds of work he had performed previously. He testified that
he could not go back and work as a laborer in construction, or
as a packer at a glass company or furniture company, as he
had before. See id. at 136.

Duncan testified that, in order to receive unemployment
compensation, he was required to submit applications in
search of other employment. See id. at 129. Although he
could not recall the specific jobs for which he applied, Duncan
testified that during his nine months on unemployment he
would check the unemployment listings, and call jobs he
thought he could do. He would ask prospective employers
what the jobs entailed. If the description of a job included
significant lifting that he knew he could not do, he would not
inquire further. See id. at 130.

Although he wanted to work full time, Duncan was not able
to find full-time employment. He ended up accepting a part-

time job with Hertz, moving cars after customers dropped
them off. He accepted the job even though it paid $5.75 an
hour, approximately one-third what he earned working for
WMATA. See id. at 135.

As noted above, Duncan should have been offered the parts
runner job when it became available. He had performed the
job in the past; he was fully qualified and physically able to
perform the work; and he had seniority among the competing
candidates. WMATA never offered an adequate explanation
for its failure to accommodate Duncan, despite knowing of his
disability and having a position available for him to perform.
Indeed, the only excuses offered by WMATA were that
Duncan never furnished medical evidence to support his
disability and that Duncan never really sought an accommo-
dation. The jury obviously rejected each of these claims;
and, based on the record before us, it is easy to understand
this, for WMATA's claims are patently specious.

II. Conclusion

Based on the evidence presented at trial, the jury reason-
ably determined that Duncan's physical disability substantial-
ly limited him in the major life activity of working. The jury
verdict should stand and the judgment of the District Court
should be affirmed.