EEOC v. Burlington Northern Santa Fe Railway Co., 10th Cir Reply brief Filed July 24, 2006 ORAL ARGUMENT REQUESTED No. 06-6074 ________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant-Appellee. ________________________________________________________ On Appeal from the United States District Court for the Western District of Oklahoma, No. 04-00660 The Honorable Ralph G. Thompson ________________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ________________________________________________________ JAMES L. LEE U.S. EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L. Street, N.W., Room 7046 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4734 DORI K. BERNSTEIN Attorney TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 I. The EEOC Adequately Preserved for Appeal its Argument that BNSF, in Disqualifying Freeman from All Jobs in and Progressing from Train Service Based on a Perceived Safety Risk, Regarded Him as Significantly Restricted in His Ability to Perform a Class of Jobs.2 II. Evidence that BNSF Disqualified Freeman from All Jobs Operating Trains Because of a Perceived Risk of Future Injury Raises a Material Factual Dispute Whether BNSF Regarded Him as Significantly Restricted in His Ability to Perform a Class of Jobs.. . . . . .7 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE CERTIFICATE OF DIGITAL SUBMISSION TABLE OF AUTHORITIES Page CASES Anixter v. Home Stake Production, 77 F.3d 1215 (10th Cir. 1996). . . . . . . . . . . . . . . 2, 6 Best v. Shell Oil, 107 F.3d 544 (7th Cir. 1977) . . . . . . . . . . . . . . . . 26 Black v. Roadway Express, 291 F.3d 445 (6th Cir. 2002) . . . . . . . . . . . . . . . . 26 Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . . . . . . . 14 Bridges v. City of Bossier, 92 F.3d 329 (5th Cir. 1996). . . . . . . . . . . . . . . .5, 23 Colwell v. Suffolk County Police Dep't, 158 F.3d 635 (2d Cir. 1998). . . . . . . . . . . . . . . . . 23 Daley v. Koch, 892 F.3d 212 (2d Cir. 1989). . . . . . . . . . . . . . . . . 23 Doebele v. Sprint/United Management Co., 342 F.3d 1117 (10th Cir. 2003) . . . . . . . . . .8, 15, 16, 17 EEOC v. J.B. Hunt Transport, 321F.3d 69 (2d Cir. 2003). . . . . . . . . . . . . . . . . . 26 Epps v. City of Pine Lawn, 353 F.3d 588 (8th Cir. 2003) . . . . . . . . . . . . . . . . 23 Koch v. Koch Inudstries, 203 F.3d 1202 (10th Cir. 2000) . . . . . . . . . . . . . . . .5 Page Lanman v. Johnson County, 393 F.3d 1151 (10th Cir. 2004) . . . . . . . . . . . . . 16, 17 Lyons v. Jefferson Bank & Trust, 994 F.3d 716 (10th Cir. 1993). . . . . . . . . . . . . . . . .6 McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001). . . . . . . . . . 15, 16, 17, 24 Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999). . . . . . . . . . . 16, 17, 19. 20, 22, 25 PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001). . . . . . . . . . . . . . . . . . . . 6, 7 Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . .9, 13 Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001) . . . . . . . . . . . . . . . . .8 Rossbach v. City of Miami, 371 F.3d 1354 (11th Cir. 2004). . . . . . . . . . . . . . . . 23 School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). . . . . . . . . . . . . . . . . . . . . 14 Sheehan v. City of Gloucester, 321 F.3d 21 (1st Cir. 2003). . . . . . . . . . . . . . . . . 23 Sorensen v. Univ. of Utah Hospital, 194 F.3d 1084 (10th Cir. 1999) . . . . . . . . . . . 16, 17, 25 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). . . . . . . . . 14, 16, 17, 18, 19, 20, 25 Page Thrasher v. B&B Chemical Co., 2 F.3d 995 (10th Cir. 1993). . . . . . . . . . . . . . . . . .5 Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002). . . . . . . . . . . . . . . . . . . . . 14 U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 (1983). . . . . . . . . . . . . . . . . . . . . .8 Welsh v. City of Tulsa, 977 F.3d 1415 (10th Cir. 1992) . . . . . . . . . . . . . . . 23 STATUTES Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . . . . . 15 RULES AND REGULATIONS Fed.R.Civ.P. 56(c) . . . . . . . . . . . . . . . . . . . . . . .1 29 C.F.R. § 1630.2(j)(3)(i). . . . . . . . . . . . . . . . 15, 17 29 C.F.R. § 1630.2(j)(3)(ii) . . . . . . . . . . . . . . . . . 28 29 C.F.R. § 1630.2(l). . . . . . . . . . . . . . . . . . . . . 15 ADMINISTRATIVE GUIDANCE 29 C.F.R. Pt. 1630, App. § 1630.2. . . . . . . . . . . . . . . 19 29 C.F.R. Pt. 1630, App. § 1630.2(j) . . . . . . . . . . . . . 28 EEOC Compliance Manual: Definition of the Term "Disability," Sec. 902 (March 1995). . . . . . . . . . . . . . . . 15, 26, 27 Page EEOC Instructions for Field Offices: Analyzing ADA Charges after Supreme Court Decisions Addressing "Disability" and "Qualified" (Dec. 1999)13, 25 LEGISLATIVE HISTORY H.R. Rep. 485, pt. 3, 101st Cong., 2d Sess. (1990) . . . . .7, 15 S. Rep. No. 101-116 (1989) . . . . . . . . . . . . . . . . . . 15 OTHER AUTHORITY Class I Railroad Statistics, AAR Policy & Economics Dep't (May 11, 2006). . . . . . . . . 27 Overview of U.S. Freight Railroads, AAR Policy & Economics Dep't (January 2006). . . . . . . . . 27 INTRODUCTION BNSF refused to hire Tom Freeman, despite his successful completion of BNSF's six-week conductor training course, despite his performance of duties "identical" to those listed on BNSF's job posting when it offered to hire him, and despite his passing BNSF's pre-employment physical exams, including "a strength test" administered by a medical provider. JA221. BNSF rejected Freeman after he disclosed a prior job-related injury to his left arm because it believed he posed an unacceptable risk of future injury while performing "train service work," JA62, 224, a loosely defined category of jobs done by roughly half its workers. See EEOC Br. 11-12 & n.11. BNSF contends that "[t]he only issue" before this Court "is whether BNSF train-service work is a class of jobs." BNSF Br. 7, 9. While the scope of jobs from which BNSF disqualified Freeman is an element in deciding whether he has a perceived disability within ADA coverage, the issue before this Court – as before the district court – is whether the evidence, viewed most favorably to the EEOC, presents a genuine factual dispute that, in refusing to employ Freeman based on a perceived risk of future injury, BNSF regarded him as substantially limited in working. See Fed.R.Civ.P. 56(c). The EEOC has adequately preserved this issue for appellate review and, because the record below raises a jury question whether BNSF regarded Freeman as disabled within the meaning of the ADA, summary judgment was improper. ARGUMENT I. The EEOC Adequately Preserved for Appeal its Argument that BNSF, in Disqualifying Freeman from All Jobs in and Progressing from Train Service Based on a Perceived Safety Risk, Regarded Him as Significantly Restricted in His Ability to Perform a Class of Jobs. "The purpose of the discretionary rule requiring the lower court to have passed on an issue for its preservation on appeal is to ensure ‘that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence . . . [or] to present whatever legal arguments [they] may have.'" Anixter v. Home Stake Production, 77 F.3d 1215, 1228 (10th Cir. 1996) (citations omitted). BNSF has had ample opportunity, both in the district court and on appeal, to present evidence and argument addressing the issue presented for this Court's review. The EEOC has consistently asserted that Freeman is protected by the ADA because BNSF, in disqualifying him from train service employment based on a perceived safety risk, regarded him as substantially limited in the major life activity of working. See JA18, 50, 155, 150-52, 161; EEOC Br. 14-15. In its determination of Freeman's charge, the EEOC cited BNSF's submission, which "defines ‘train service work' to include a broad class of jobs, including Conductor Trainee, Brakeman, Switchman, Conductor, and Engineer," and discloses a workforce of "over 16,000 in these position[s]." JA50; see also JA65-66. The EEOC determined that the medical evidence indicated Freeman was capable of "‘any type of employment . . . including working on railroad cars and hanging from the side of railroad cars'" without "‘any increased risk to himself or his fellow employees,'" and that BNSF "failed to hire [him] because it regarded him as being disabled, that is substantially limited in the major life activity of working in a broad range of train service jobs." JA50. The district court, in denying BNSF's motion to dismiss the EEOC's complaint, stated: "[T]he primary question at issue is whether Freeman satisfied the definition of a qualified person with a disability," and more specifically, "whether [BNSF regarded him as] substantially limited in the major life activity of working," i.e., "restricted in the ability to perform a class of jobs or a broad range of jobs in various classes." JA18. In seeking summary judgment on the ground that Freeman does not have a disability within ADA coverage, it was BNSF's burden to show the absence of any material factual dispute on that question. See Fed.R.Civ.P. 56(c). Both in the district court and on appeal, the EEOC has argued that a jury could find the railroad's decision to disqualify Freeman, based on its perception that his "medical condition" poses an unacceptable risk of future injury, JA 224, demonstrates that BNSF regarded him as substantially limited in the major life activity of working. See JA150-52; EEOC Br. 14-15. The EEOC argued below, as on appeal, that BNSF's purportedly safety- based exclusion of Freeman from jobs in and progressing from train service is sufficient to support a finding that the railroad regarded him as significantly restricted in his ability to work in a "class of jobs," and therefore covered by the ADA. See JA144, 152, 161; EEOC Br. 16-36. In support of this argument, the EEOC provided the expert report of a staff labor economist who reviewed (and appended) federal labor surveys, including 2000 census data showing that the vast majority (108,160 of 120,360) of employees in railroad jobs work in the category of "train operations, consisting of Locomotive Engineers and Operators, Railroad Brake, Signal, and Switch Operators, and Railroad Conductors and Yardmasters." JA245. The report concluded that "train service work," as defined in BNSF's submissions to the EEOC and in the testimony of BNSF Human Resources (HR) Director Terry Morgan, "represents a class of jobs from which Mr. Freeman would be excluded," based on BNSF's perception of his medical condition, and that "BNSF's listing of jobs in ‘train service' work" corresponds closely with the census category of "train operations" jobs in which most railroad workers are employed. Id. ("Matching BNSF's listing of jobs in ‘train service' work with applicable [c]ensus data reveals that at least 108,160 persons in the United States are employed in these railroad jobs."). See Koch v. Koch Industries, 203 F.3d 1202, 1215 (10th Cir. 2000) ("One important purpose of written briefs and expert opinion evidence is to focus the court's attention on the specific nature of the legal theories and factual allegations at issue in a case."). BNSF urges this Court to disregard the EEOC's expert report and supporting materials in assessing whether summary judgment was properly granted. See BNSF Br. 48-49. Because BNSF never moved the district court to strike either the report – or the attached excerpts of federal labor surveys and census data – from the summary judgment record, "it was part of the evidence before the district court and is properly considered on appeal." Thrasher v. B&B Chemical Co., 2 F.3d 995, 998 (10th Cir. 1993). While the EEOC has refined its argument on appeal, the brief and evidentiary materials submitted in opposition to summary judgment adequately preserved for this Court's consideration the issue and argument raised on appeal. See Bridges v. City of Bossier, 92 F.3d 329, 335 n.8 (5th Cir. 1996) (holding plaintiff did not waive issue, first raised in amicus curiae brief on appeal, whether firefighting is a "class of jobs," calling it a "variation on [plaintiff's] legal argument that the district court erred in holding that the City [employer] did not regard him as substantially limited in his major life activity of working" by perceiving him as unable to perform a broad range of jobs in various classes). Finally, this Court has noted that the issue preservation rule "is not inflexible and the matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases." Anixter, 77 F.3d at 1229 (internal quotation marks and citations omitted). If this Court concludes the EEOC did not present with adequate specificity below every aspect of the argument advanced on appeal, see Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (addressing "what kind of specificity is required in the trial court in order to preserve an issue for appeal"), the Commission urges the Court to exercise its discretion to follow the Supreme Court's example in a recent ADA case, and consider the EEOC's argument in its entirety. In PGA Tour, Inc. v. Martin, 532 U.S. 661, 677-78 & n.27 (2001), a professional golfer with a circulatory disorder that impaired his ability to walk sought permission to use a golf cart during tournaments sponsored by a professional golfing association (PGA), pursuant to Title III of the ADA, which prohibits disability discrimination in public accommodations. Id. at 669. In the district court, PGA challenged statutory coverage, arguing that the private golf club where tournaments were held, or at least the area "behind the ropes," i.e., the non-spectator area, of such a club, is not a public accommodation within ADA coverage. Id. at 677-78. On appeal, the PGA reasserted the second of these arguments. Id. Before the Supreme Court on a petition for certiorari, PGA "reframe[d] the coverage issue, by arguing that the competing golfers are not members of the class protected by Title III of the ADA." Id. at 678. The Court rejected the golfer's objection "that [PGA's] failure to make this exact argument below precludes its assertion here." Id. at n.27. The Court observed that "the Title III coverage issue was raised in the lower courts, [PGA] advanced this particular argument in support of its position on the issue in its petition for certiorari, and the argument was fully briefed on the merits by both parties." Id. at n.27. "Given the importance of the issue," the Supreme Court "exercis[ed] [its] discretion to consider it." Id. This Court should likewise address the merits of the EEOC's argument on appeal. II. Evidence that BNSF Disqualified Freeman from All Jobs Operating Trains Because of a Perceived Risk of Future Injury Raises a Material Factual Dispute Whether BNSF Perceived Him as Significantly Restricted in His Ability to Perform a Class of Jobs. "The perception of the covered entity is a key element of [the] test" for statutory coverage under the "regarded as" definition of disability. H.R. Rep. 485 pt. 3, 101st Cong., 2d Sess. 30 (1990). Thus, in establishing a claim of perceived disability, the plaintiff's "prima facie showing that he is disabled turns upon the employer's state of mind." Ross v. Campbell Soup Co., 237 F.3d 701, 708 (6th Cir. 2001). Like all questions of motivation and intent, the employer's perception of the claimant's limitations "is a finding of fact subject to clearly erroneous review," Bridges, 92 F.3d at 332, and summary judgment is therefore improper where the evidence presents "a fact issue on whether [an employer's] adverse employment actions were motivated by" a perception of the employee grounded in "myth, fears, and stereotypes" commonly associated with disabilities. Doebele v. Sprint/United Management Co., 342 F.3d 1117, 1133-34 (10th Cir. 2003); see U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716-17 (1983) (fact- finder in discrimination case must "inquire into a person's state of mind," which "‘is as much a fact as the state of his digestion'") (citation omitted). In urging this Court to affirm summary judgment against the EEOC, BNSF asserts that it perceived Freeman as limited only in his ability to hang onto moving trains, and that "work requiring hanging on the side of moving rail cars is [not] a ‘class of jobs' under the ADA." BNSF Br. 7. The record demonstrates, however, that the railroad's perception of Freeman's limitations is a genuinely disputed question of fact. Contrary to fundamental summary judgment principles, BNSF's argument requires this Court to accept as undisputed its proffered explanation for rejecting Freeman, ignore evidence and reasonable inferences favoring the EEOC, and decide questions of credibility, fact, and motivation that are the exclusive province of a jury. Reeves v. Sanderson Plumbing, 530 U.S. 133, 151 (2000) ("‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'") (citation omitted). BNSF refused to hire Freeman based on its perception that he retained "weakness in his left arm due to a previous on-the-job injury" that posed "an unacceptable risk" of injury or death while performing "train service work," JA65, 224, and explained that "Freeman's disqualification was related to safety concerns due to his reduced grip strength." JA63. In submissions to the EEOC and through the testimony of HR Director Morgan, BNSF admitted it disqualified Freeman from working as a conductor trainee, brakeman, switchman, switch foreman, inside hostler, outside hostler, outside hostler helper, conductor, locomotive engineer, engine foreman, fireman, and yardmaster. See JA168, 170-71, 175, 185, 235, 270-73. Roughly half the railroad's workforce occupies these positions. See EEOC Br. 11-12 & note 2. The record affords substantial evidentiary basis to question whether BNSF actually perceived Freeman as lacking adequate strength to work safely in train service. Freeman maintains that he has no impairment or limitations, an assertion supported by his own affidavit and medical records. According to Freeman, "I never told BNSF that I had reduced grip strength or weakness in my arm and have had none since completing my physical therapy in 2002 and subsequent release to work." JA222. The results of a grip strength test administered in December 2002 and provided to BNSF confirms the finding of Freeman's orthopedist that he had "sustained no measurable impairment."<1> JA230-31. BNSF does not dispute, moreover, that Freeman passed the requisite pre-employment physical exam and medical screening, including a strength test. See JA221. Presumably, the purpose of these tests is to ascertain that prospective employees can meet the physical demands of the job.<2> Freeman's undisputed ability to pass all physical tests administered by BNSF is thus highly probative evidence that he has no impairment that would impede his actual ability to perform all essential job functions, and that BNSF's assertion of a contrary belief is a pretext for discrimination founded on disability-based stereotypes. After Freeman disclosed, on BNSF's medical questionnaire, that he had injured his left arm while working as a firefighter, the railroad withdrew its job offer and told him he was "disqualified due to [his] grip strength." JA222. Dr. Jarrard, who had never met or spoken with Freeman, explained he was "not qualified for a job with BNSF" because his "medical condition creates a significant risk that a serious or potentially fatal accident may occur while performing train service work," which requires "the ability to remain stable on the side of moving train cars using only one arm for support." JA224. In an effort to dispel Dr. Jarrard's articulated safety concern, Freeman's doctor advised BNSF that, in his opinion, Freeman could "pursue any type of employment . . . including working on railroad cars and hanging from the side of railroad cars" without posing "any increased risk to himself or his fellow employees," and invited Dr. Jarrard to call him if he had any questions. JA228. Without contacting Freeman's doctor, Dr. Jarrard notified Freeman that BNSF "still ha[s] significant reservations about your ability to safely perform all the essential functions of train service work due to your medical condition," and considered him "not qualified for train service employment with BNSF." Doc.29, p.3 ¶8. BNSF explained to the EEOC that it disqualified Freeman from a "career progression" of jobs that "require employees to climb onto large equipment and at times . . . use their arms to hang on to the equipment, as it is moving," because "BNSF is simply unable to take the risk that Mr. Freeman could be injured or possibly killed due to the weakness in his left arm that he self-reported to the company." JA65. At no time did BNSF inform Freeman that, despite his disqualification from "train service employment," he was eligible or qualified for any job at the railroad. It was only two years later, during this litigation, that BNSF's corporate representative identified several jobs for which he considered Freeman "a suitable candidate," based on "information concerning [his] training, knowledge, skills, and abilities." JA45. In light of Dr. Jarrard's statement that Freeman was "not qualified for a job with BNSF," JA224, and BNSF's failure to indicate in any way to Freeman that he was "a suitable candidate" for employment in any capacity at BNSF, a reasonable jury could discredit the conclusory statement of BNSF's corporate representative, in support of summary judgment, suggesting that there were jobs at the railroad for which Freeman would not have been disqualified. See Reeves, 530 U.S. at 151 (on summary judgment, court "must disregard all evidence favorable to the moving party that the jury is not required to believe" and "give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses") (emphases added). In assessing a claim of perceived disability, "[a]ctions speak louder than words. . . . . Because [employers] are likely to deny that they regarded a [claimaint] as having a disability, it is important to assess whether the [employer's] actions indicate otherwise." EEOC Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," 13 (December 1999).<3> Based on evidence of Freeman's actual strength and lack of "measurable impairment," a reasonable jury could disbelieve that BNSF truly perceived Freeman as lacking adequate arm strength to hang onto a moving train without endangering his life. See JA230-31, EEOC Br. 30-31 & n.4.<4> The jury could instead conclude that BNSF perceived Freeman, who had previously incurred a serious job-related injury (from which he had recovered with "no measurable impairment," JA231) as likely to be injured on the job at the railroad, and refused to hire him to avoid the risk – and associated cost and liability – of such an injury.<5> BNSF's explanations of its decision to disqualify Freeman furnish ample support for a jury to find that it rejected Freeman based on a perception that he posed "an unacceptable risk . . . due to a previous on-the-job injury." JA65; see EEOC Br. 34-35. Evidence that BNSF refused to hire Freeman because it perceived him to pose an unacceptable risk of future on-the-job injury would support a finding that it regarded him as substantially limited in working. See Doebele, 342 F.3d at 1133; McKenzie v. Dovala, 242 F.3d 967, 971(10th Cir. 2001); 29 C.F.R. Pt. 1630, App. § 1630.2(l).<6> Furthermore, BNSF's argument that the "career progression" from which it admittedly disqualified Freeman, JA65, is not a "class of jobs" as contemplated in the pertinent EEOC regulation, 29 C.F.R. § 1630.2(j)(3)(i), is inconsistent with Sutton, Murphy v. United Parcel Service, 527 U.S. 516 (1999), and subsequent decisions of this Court. The Supreme Court in Sutton and Murphy assumed without deciding that the EEOC "regulations regarding the disability determination are valid," Murphy, 527 U.S. at 523, and applied the analysis set forth in these regulations to determine whether a person is regarded as substantially limited in the major life activity of working, and therefore covered by the ADA. See Sutton, 527 U.S. at 491-93; Murphy, 527 U.S. at 523-25. Although BNSF suggests that "the Supreme Court's approach" in Sutton and Murphy differs from the analysis prescribed by the EEOC, see BNSF Br. 20 n.13, 29-30, 31, this Court has held otherwise. See Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1088 (10th Cir. 1999) ("The EEOC and the Supreme Court have discussed the requirements to establish a disability under subsection (C) [of the ADA's definition of "disability"] when the plaintiff claims the life activity regarded as impaired is the activity of working. . . . Sutton is consistent with the EEOC's guidelines."). In the years since Sutton and Murphy were decided, moreover, this Court has repeatedly endorsed and applied the EEOC's regulations and guidance to analyze claims of disability discrimination based on a perceived limitation in the major life activity of working. See, e.g., Lanman v. Johnson County, 393 F.3d 1151, 1156-57 (10th Cir. 2004); Doebele, 342 F.3d at 1129-34; McKenzie, 242 F.3d at 970-73; Sorensen, 194 F.3d at 1088-89.<7> Pursuant to EEOC regulations, the Court stated, a person is substantially limited in working if he 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.'" Sutton, 527 U.S. at 491 (quoting 29 C.F.R. § 1630.2(j)(3)(i)); see also Murphy, 527 U.S. at 523 (same). Citing "several factors" identified in EEOC regulations as pertinent to whether an impairment substantially limits a person in working, the Court determined that "one must be precluded from more than one type of job, a specialized job, or a particular job of choice." Sutton, 527 U.S. at 492. Further, "[i]f 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." Id. The Court applied the analysis prescribed by the EEOC and in each case found an insufficient basis for a claim of perceived disability in working. The plaintiffs in Sutton "failed to allege adequately that their poor eyesight is regarded as an impairment that substantially limits them in the major life activity of working," having "allege[d] only that [the airline] regards their poor vision as precluding them from holding positions as a ‘global airline pilot.'" 527 U.S. at 493. "Because the position of global airline pilot is a single job," the Court explained, "this allegation does not support the claim that [the airline] regards [plaintiffs] as having a substantially limiting impairment." Id. The Court identified "a number of other positions utilizing [plaintiffs'] skills, such as regional pilot and pilot instructor to name a few, that are available to them," and quoted a remarkably apt example from EEOC Interpretive Guidance: "‘an individual who cannot be a commercial airline pilot because of a minor vision impairment, but who can be a commercial airline co-pilot or a pilot for a courier service, would not be substantially limited in the major life activity of working.'" Id. (quoting 29 C.F.R. pt. 1630, App. § 1630.2). Similarly, the Court in Murphy found the perception of plaintiff's employer (UPS) that he was unable, due to hypertension, to obtain federal Department of Transportation (DOT) certification to drive a commercial motor vehicle was "not sufficient to create a genuine issue of material fact as to whether [he] is regarded as unable to perform a class of jobs utilizing his skills" as a mechanic. 527 U.S. at 524. "At most," the Court observed, Murphy "has shown he is regarded as unable to perform the job of mechanic only when that job requires driving a commercial motor vehicle – a specific type of vehicle used on a highway in interstate commerce," and had "put forward no evidence that he is regarded as unable to perform any mechanic job that does not call for driving a commercial motor vehicle and thus does not require DOT certification." Id. "[I]t is undisputed," the Court stated, "that [plaintiff] is generally employable as a mechanic," having "‘performed mechanic jobs that did not require DOT certification' for ‘over 22 years,' and [having] secured another job as a mechanic shortly after leaving UPS." Id. The Court further cited "uncontroverted evidence that [plaintiff] could perform jobs such as diesel mechanic, automotive mechanic, gas-engine repairer, and gas- welding equipment mechanic, all of which utilize [his] mechanical skills." Id. at 524-25. Given Murphy's "skills and the array of jobs available to [him] utilizing those skills," the Court concluded, Murphy "has failed to show that he is regarded as unable to perform a class of jobs." Id. at 525. The "undisputed record evidence," the Court determined, "demonstrates that [plaintiff] is, at most, regarded as unable to perform only a particular job" and was thus "insufficient, as a matter of law, to prove that [he] is regarded as substantially limited in the major life activity of working." Id. By contrast, the undisputed record evidence in this case shows BNSF perceived Freeman as "precluded from more than one type of job, a specialized job, or a particular job of choice." See Sutton, 527 U.S. at 492. Rather, the railroad disqualified Freeman from a "career progression," JA65, comprised of virtually every job in its workforce operating trains. BNSF tries to distinguish Sutton and Murphy by citing the "pre-existing skills, experience, knowledge, and special training in a particular area" of "pilots and mechanics," while characterizing the job Freeman sought as "basically a manual labor job" requiring no such "pre-existing special skills, training, experience, or knowledge." BNSF Br. 22. BNSF's effort to portray the jobs in train and engine service, from which it disqualified Freeman, as unskilled manual labor contradicts the public descriptions of the extensive training BNSF sponsors at the National Academy of Railroad Sciences (NARS). BNSF describes the "expertise and experience" required in various areas of "railroad operations," including "Conductor/Yard Crew": Conductors are responsible for supervising the over-the-road operation of freight trains. They make decisions about switching, spotting cars and making up the train. They are responsible for monitoring and reporting work performed en route. With yard crews, conductors are also responsible for inspecting cars in conformance with [federal] regulations, protecting railroad revenue, and responding to hazardous materials emergencies. Switchmen identify and line switches, identify and tie hand brakes, and line switches at industrial sites. Students [at the NARS] practice all the tasks that are critical to the safe and efficient movement of trains. See http://www.bnsf.com/careers/training/railroad_academy.html. The NARS website further elaborates on the specialized skills and training provided in its "six-week yard and conductor program": The yard crews . . . build or classify outbound trains and reclassify inbound trains. They also take cars to local customers to load or unload. Maintaining order and anticipating situations before they occur are key skills used by conductors and train yard professionals. Once the train is built, the train crew boards the train, and with all their required paperwork and instructions, takes the train on the road to its next destination. En Route, the Conductor is responsible for administration of the onboard shipments. . . . NARS will teach [participants] the General Code of Operating Rules, how to work safely around railroad equipment, secure freight cars, line switches, night time hands-on training, remote control operations, how to inspect, switch and ‘spot' cars, and how to make-up and operate trains. From bearings to brakes, car types to couplers, [participants] can learn the ins and outs of managing railroad work at The Academy. See http://www.railroadtraining.com/programs_conductor.html. Freeman successfully completed the BNSF/NARS six-week yard and conductor training program, at a personal expense of nearly $6,000. JA221. Yet BNSF disqualified Freeman from every job in which he could use his newly acquired skills, knowledge, and specialized training, and considered him unable to perform any job in the "career progression" from train to engine service. JA65. Unlike the employer in Murphy, who provided undisputed evidence that numerous other jobs using the plaintiff's mechanical skills remained available to him notwithstanding his perceived inability to obtain DOT certification, see 527 U.S. at 524-25, BNSF has failed to identify any jobs available or open to Freeman for which his NARS training prepared him.<8> BNSF relies primarily on cases holding that individual plaintiffs perceived as unable to perform the job of police officer or firefighter were not regarded as substantially limited in their ability to perform a class or broad range of jobs. See BNSF Br. 8-9, 24-26. Yet in nearly every one of these cases, the claimant's evidence showed he was disqualified from only a single position. See Rossbach v. City of Miami, 371 F.3d 1354, 1362 n.8 (11th Cir. 2004) ("job of ‘police officer' is not a ‘class of jobs'"); Epps v. City of Pine Lawn, 353 F.3d 588, 590 (8th Cir. 2003) (conclusion plaintiff "could not perform the particular job of a Pine Lawn police officer . . . is insufficient to establish an ADA . . . claim"); Sheehan v. City of Gloucester, 321 F.3d 21, 25-26 (1st Cir. 2003) ("City's belief that [plaintiff] was incapable of working as a Gloucester police officer . . . is not sufficient for [him] to be considered disabled for purposes of the ADA"); Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 647 (2d Cir. 1998) (police officers assigned to long- term light duty "non-confrontational positions" did not show they "were regarded as substantially limited in their ability to work"); Bridges, 92 F.3d at 335-36 ("firefighting jobs – including firefighters and associated municipal paramedics or [Emergency Medical Technicians] who must also serve as backup firefighters – is too narrow a field to describe a ‘class of jobs'"); Welsh v. City of Tulsa, 977 F.2d 1415, 1419 (10th Cir. 1992) ("an impairment that an employer perceives as limiting an individual's ability to perform only one job [firefighter] is not a handicap under the [Rehabilitation] Act"); Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989) ("Being declared unsuitable for the particular position of police officer is not a substantial limitation of a major life activity."). Although BNSF asserts that the jobs of police officer and firefighter "typically involve multiple discrete positions" and provides examples of various jobs a "police officer" might hold, see BNSF Br. 24 & n. 15, none of the cited decisions indicates that any of the plaintiffs was disqualified from more than a single particular police officer position. Evidence that a former officer was excluded from multiple positions in a police department, moreover, led this Court to reverse summary judgment because the record "shows a factual controversy as to whether the defendant viewed [plaintiff] as limited in her ability to work in the class of jobs comprising law enforcement," and therefore protected by the ADA. See McKenzie, 242 F.3d at 971. The Court in McKenzie held that the refusal to consider employing a former deputy in a "less sensitive post within the Office, such as in the civil division responsible for serving papers and subpoenas, the records division, the administrative division, or the jail division, suggests that [defendant] regarded her as substantially limited in her ability to work in an entire class of jobs, not merely in the particular job of patrol officer." Id. at 971-72. Evidence that BNSF effectively disqualified Freeman from all jobs operating trains is analogous to exclusions that courts have indicated are sufficient to show a perceived substantial limitation in the ability to work in a class of jobs, and distinguishes this case from decisions rejecting a claim of perceived disability based on disqualification from a single job. The Supreme Court's rationale for rejecting the claims of perceived disability in Sutton and Murphy suggests that an otherwise qualified individual who was regarded as unable to hold any job as a pilot or a mechanic could demonstrate s/he was perceived as precluded from a class of jobs and therefore substantially limited in working. See, e.g., Sutton, 527 U.S. at 493 (availability of other piloting jobs negated claim that plaintiffs rejected from single job of global airline pilot were regarded as substantially limited in working); Murphy, 527 U.S. at 524-25 (undisputed evidence plaintiff was "generally employable as a mechanic" and could perform a variety of jobs "all of which utilize [his] mechanical skills" demonstrated as a matter of law he was not substantially limited in working); EEOC Instructions for Field Offices, supra note 3, at 14, 16 (exclusion from "class of pilot jobs" or "class of mechanics jobs" would demonstrate substantial limitation in working). Similarly, this Court in Sorensen suggested that nursing is a class of jobs for purposes of establishing ADA coverage. 194 F.3d at 1089 ("Plaintiff has not distinguished the flight nurse position," from which she was disqualified, "from the class of regular nurse jobs Defendant permitted her to perform," and therefore failed to demonstrate hospital regarded her as substantially limited in working). See also Best v. Shell Oil, 107 F.3d 544, 548 (7th Cir. 1997) (evidence defendant regarded plaintiff as unable to drive trucks for the company would support finding it perceived him as substantially limited in working);<9> EEOC Compliance Manual: Definition of the Term "Disability," Sec. 902, 25 (March 1995)<10> (charging party "is substantially limited in working because her impairment prevents her from working in the class of jobs requiring use of a computer"); id. at 28 (individual whose impairment interferes with "ability to work in the class of clerical jobs . . . is substantially limited in working"). There is no principled reason why a person perceived as unable to hold any job flying planes, or driving trucks, is regarded as significantly restricted in his ability to work in a class of jobs, but a person disqualified from every position operating trains is not. BNSF complains of "arbitrary" "line drawing" in identifying the jobs from which it disqualified Freeman as a "class of jobs," yet objects to the EEOC's reliance on federal occupational surveys and census data that objectively define job classifications. BNSF Br. 36-40. BNSF criticizes this federal labor data on the ground that it does not distinguish between freight and passenger railways, or between "Class I" and other freight railways. Yet, as BNSF is surely aware, most employment opportunities in the railroad industry are in Class I freight railroads. According to the Association of American Railroads (AAR), of which BNSF is a member, "Class I carriers . . . comprise just 1 percent of freight railroads, but they account for . . . 89 percent of its employees." Overview of U.S. Freight Railroads 1, AAR Policy & Economics Dep't (January 2006).<11> While Class I freight railroads employed 157,699 workers in 2004, Class I Railroad Statistics 1, AAR Policy & Economics Dep't (May 11, 2006), AMTRAK<12> employed 20,938, on average. See http://www.aar.org/AboutTheIndustry/RailroadProfiles.asp. BNSF does not argue that the duties of employees in its train and engine service positions are different than those of workers at any other Class I freight railway. See EEOC Compliance Manual, Sec. 902 at 52 (to determine if claimant is perceived as limited in working, "one should determine whether the [basis for disqualification] pertains uniquely to the peculiar job or work site of one particular employer"). The federal labor and census data are thus "evidence of general employment demographics and/or of recognized occupational classifications" indicating that BNSF's perception of Freeman's limitations would disqualify him from "‘many'" or "‘most'" jobs operating trains, 29 C.F.R. pt. 1630 app., § 1630.2(j), and would support a jury finding that the railroad perceived him as "significantly restricted in his ability to perform a class of jobs." 29 C.F.R. § 1630.2(j)(3)(ii). CONCLUSION For the foregoing reasons, and those stated in its opening brief, the EEOC urges this Court to reverse summary judgment and remand for trial on the merits. Respectfully submitted, __________________________ JAMES L. LEE DORI K. BERNSTEIN Deputy General Counsel Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel 1801 L. Street, N.W. Washington, D.C. 20507 (202)663-4734 CERTIFICATE OF COMPLIANCE As required by Fed.R.App.P. 32(a)(7)(C), I certify that this brief is proportionally spaced and contains 6,896 words. See Fed.R.App.P. 32(a)(7)(B)(i). I relied on my work processor to obtain the count and it is WordPerfect 9. The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed.R.App.P. 32(a)(5). I certify that the information in this certificate of compliance is true and correct to the best of my knowledge and belief formed after a reasonable inquiry. __________________________ Dori K. Bernstein July 24, 2006 CERTIFICATE OF SERVICE I, Dori K. Bernstein, hereby certify that on the 24th day of July, 2006, I caused two copies of the attached Brief of the Equal Employment Opportunity Commission as Appellant to be sent via first class U.S. mail to: ROBERTA BROWNING FIELDS RAINEY, ROSS, RICE & BINNS 120 N. Robinson Ave., Suite 735W Oklahoma City, Oklahoma 73102 BRYAN P. NEAL LAWRENCE M. STROIK STEPHEN F. FINK BURLINGTON NORTHERN THOMPSON & KNIGHT RAILROAD COMPANY 1700 Pacific Avenue, Suite 3300 Law Department Dallas, Texas 75201 2300 Lou Menk Dr., AOB-3 Fort Worth, Texas 76131 __________________________ DORI K. BERNSTEIN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. Street, N.W., Room 7046 Washington, D.C. 20507 (202)663-4734 dori.bernstein@eeoc.gov July 24, 2006 Certificate of Digital Submission I, Dori K. Bernstein, hereby certify that: 1. All required privacy redactions have been made (NONE). 2. On July 24, 2006, I will send an e-mail containing the attached brief in digital form to the Tenth Circuit clerk's office at esubmissions@ca10.uscourts.gov, and to counsel for the defendant. The document submitted in digital form will be an exact copy of the written document filed with the Court, but for the signature which appears in accordance with the Amended Emergency Order governing digital filings in the 10th Circuit Court of Appeals (Amended Emergency Order). Additionally, in accordance with the Amended Emergency Order, all of the documents in the Joint Appendix (not available in digital format) are being submitted in writing only. 3. The digital submissions have been scanned for viruses by the EEOC's virus scanning software and, according to this program, are free of viruses. The EEOC utilizes Symantec AntiVirus Corporate Edition. The software was most recently updated on _____________. __________________________ DORI K. BERNSTEIN Attorney Connecticut State Bar No. 302667 District of Columbia Bar No. 415827 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. Street, N.W., Room 7046 Washington, D.C. 20507 (202)663-4734 dori.bernstein@eeoc.gov July 24, 2006 ***************************************************************************** <> <1> There is no record support for BNSF’s repeated characterization of the perceived “weakness in [Freeman’s] left arm” and “decrease in grip strength in his left hand” as “medically confirmed.” See BNSF Br. 5, 28. Neither Freeman’s medical records, JA228, 230-31, nor Dr. Jarrard’s correspondence, JA224, or scrawled notations at the bottom of a fax cover sheet, mention “weakness.” JA 215. The only record references to “weakness” occur in two letters from BNSF to the EEOC, JA 62-63, 226, and the affidavit of HR Director Morgan citing these letters. See JA 44. In each letter, BNSF mentions only Freeman’s alleged disclosure of “weakness in his left arm due to a previous on-the-job injury.” JA62; 65. Freeman directly disputes that he has experienced any such “weakness” since completing physical therapy in 2002, or that he so informed BNSF. JA222. <2> See JA267 (“Most railroad transportation workers begin as yard laborers, and later may have the opportunity to train for engineer or conductor jobs. . . . Applicants must have good hearing, eye-sight, and color vision, as well as good hand-eye coordination, manual dexterity, and mechanical aptitude. Physical stamina is required for these entry level jobs. Employers require railroad transportation job applicants to pass a physical examination and drug and alcohol screening.”). <3> This enforcement guidance is publicly available on the EEOC website, http://www.eeoc.gov/policy/docs/field-ada.html. <4> BNSF criticizes the EEOC’s citation to medical reference texts and journals regarding grip strength testing. See BNSF Br. 16-17. The Supreme Court opinions in ADA cases, however, cite extensively to such sources. See, e.g., Toyota Motor Manufacturing v. Williams, 534 U.S. 184, 199 (2002) (reviewing medical literature on variable symptoms and effects of carpal tunnel syndrome); Sutton v. United Air Lines, 527 U.S. 471, 484 (1999) (citing medical journals reporting potential negative side effects of various medications); Bragdon v. Abbott, 524 U.S. 624, 633-37, 639-40 (1998) (drawing extensively on medical texts to describe HIV infection). While the EEOC did not cite these medical sources in the district court, they merely confirm the existence of a genuine factual dispute between BNSF’s assertion that Freeman was rejected due to reduced grip strength and weakness in his left arm, and substantial record evidence that he had “sustained no measurable impairment” or weakness at all. See JA 222, 231. <5> BNSF is of course correct that employee safety is a legitimate employer concern. See BNSF Br. 46. As both the Supreme Court and Congress have recognized, however, concerns about safety and potential injury are a significant source of disability-based fears and stereotypes that limit the opportunities of individuals with actual, or perceived, disabilities. See School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 283 (1987). It is precisely for this reason that Congress extended statutory protection to individuals like Freeman who, though unimpaired and fully capable, are denied employment due to purported safety concerns, see EEOC Br. 33-34 (citing legislative history and guidance), and imposed on employers a heightened “direct threat” standard when disqualifying an otherwise qualified job candidate based on a perceived safety risk. See Bragdon, 524 U.S. at 648 (“The ADA’s direct threat provision stems from the recognition in [Arline, 480 U.S. at 287], of the importance of prohibiting discrimination against individuals with disabilities while protecting others from significant health and safety risks.”). <6> There is no basis to distinguish, as BNSF suggests, between mental and physical impairments in assessing claims of perceived disability based on myths, fears, and stereotypes. See BNSF Br. 46. The statutory definition of “disability” provides no basis for such a distinction, 42 U.S.C. § 12112(a), and both the legislative record and EEOC guidance, in explaining the “regarded-as” definition of disability, provide numerous examples of disability-based stereotypes incident to physical impairments. See H.R. Rep. No. 101-485 pt. 3, 30-31 (1990), reprinted in U.S.C.C.A.N. 445, 452-53 (burn victim; person with anomalous back x-ray); S. Rep. No. 101-116, 24 (1989) (persons with controlled diabetes or epilepsy, back abnormalities, or who wear hearing aids); EEOC Compliance Manual: Definition of the Term “Disability,” Sec. 902, 55-56 (March 1995) (arthritis). <7> BNSF attaches undue significance to the Supreme Court’s use in Sutton of the adjectives “substantial” and “broad” to modify “class of jobs.” See BNSF Br. 31 n.17. In Murphy, a decision issued simultaneously with Sutton, the Court omitted the modifier, finding insufficient evidence “to create a genuine issue of material fact as to whether [Murphy] is regarded as unable to perform a class of jobs utilizing his skills.” 527 U.S. at 524; see also id. at 525 (“[I]n light of [Murphy’s] skills and the array of jobs available to [him] utilizing those skills, [Murphy] has failed to show that he is regarded as unable to perform a class of jobs.”). This Court has likewise articulated the appropriate standard both with and without adjectival embellishment. Compare, e.g., Lanman, 393 F.3d at 1157 (“An employee is perceived as substantially limited in working when the employer believes the employee ‘is unable to perform either a class of jobs or a broad range of jobs in various classes.’”) (quoting Doebele, 342 F.3d at 1133, and citing Sutton, 527 U.S. at 491-92); McKenzie, 242 F.3d at 971(evidence “shows a factual controversy as to whether defendant viewed [plaintiff] as limited in her ability to work in the class of jobs comprising law enforcement), with Doebele, 342 F.3d at 1133 (an individual has a “disability” within ADA coverage if her employer “regarded her as substantially limited from a broad class of jobs” due to an actual or perceived impairment). These variable formulations of the standard, used interchangeably (even in the same case, see Doebele, infra), suggest BNSF’s emphasis on such modifiers is unwarranted. <8> The jobs for which HR Director Morgan thought Freeman might be a “suitable candidate,” JA45, appear to be entry-level laborer or maintenance jobs occupied by workers without the specialized training required in BNSF’s “career progression,” JA65, of positions operating trains. See supra note 2; EEOC Br. 27. <9> The Second Circuit in EEOC v. J.B. Hunt Transport, 321 F.3d 69, 75 (2d Cir. 2003), held that, “even assuming that truck-driving in general is a sufficiently broad range or class of jobs to constitute a ‘major life activity,’” individuals disqualified from “the specific job” of “driving 40-ton, 18-wheel trucks over long distances for extended periods” were not perceived as unable to perform a class or broad range of jobs. The Court thus did not decide the issue resolved by the Seventh Circuit in Best, that disqualification from truck-driving jobs could demonstrate a perceived inability to work in a class of jobs. See Black v. Roadway Express, 297 F.3d 445, 454 (6th Cir. 2002) (“The Seventh Circuit has held that truck driving constitutes a class of jobs.”). <10> This section of the compliance manual is publicly available on the EEOC website, http://www.eeoc.gov/policy/docs/902cm.html. <11> All cited AAR publications are available online at http://www.aar.org. <12> AMTRAK is “the sole intercity U.S. passenger rail carrier in the continental United States.” Overview of U.S. Freight Railroads 8.