Duncan, Jimmy L. v. WMATA , 240 F.3d 1110 ( 2000 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 1999 Decided January 28, 2000
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 and Robert J. Kniaz were on brief for the
appellant.
Bruce M. Bender argued the cause for the appellee. Su-
zanne L. Lawrence entered an appearance.
Before: Edwards, Chief Judge, Silberman and Henderson,
Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Dissenting opinion filed by Chief Judge Edwards.
Karen LeCraft Henderson, Circuit Judge: Washington
Metropolitan Area Transit Authority (WMATA) challenges
the district court's denial of judgment as a matter of law on
the claims Jimmy Duncan brought under the Americans with
Disabilities Act (ADA), 42 U.S.C. ss 12101 et seq. (1994), and
for which a jury returned a verdict awarding Duncan $250,000
in compensatory damages: $125,000 for the "decision not to
reasonably accommodate [him]" and $125,000 "as a result of
[WMATA's] decision to terminate [him]." Judgment on the
Verdict, p p 7, 8. WMATA also challenges two post-trial
orders granting attorney's fees and costs and one post-trial
order granting backpay and prejudgment interest.
We conclude that Duncan failed to establish he was dis-
abled and thus protected under the ADA and, therefore,
reverse the district court's order denying judgment as a
matter of law. We also vacate the jury verdict and the post-
trial orders noted above.
I.
Duncan, forty-seven years old at the time of trial, attended
high school and trade school in electronics but completed
neither. He has an employment history of unskilled labor
positions, many requiring heavy lifting. He began working
for WMATA in May 1986 as a custodian, a position that
required him to lift between 75 and 100 pounds. Duncan
then became an Automated Fare Collector (AFC) parts run-
ner in November 1991. He testified that 30 pounds was the
heaviest lifting required and his testimony was corroborated
by that of a co-worker. In early December 1992, as a result
of another employee's grievance, Duncan was transferred
involuntarily to the Elevator/Escalator branch (ELES) into a
position requiring heavy lifting.
From 1989 to 1992 Duncan sustained several back injuries
including an off-duty automobile accident in February 1992.
Some of the injuries required a number of weeks away from
work or on light duty but in each instance Duncan was able to
return to work without restriction. On December 16, 1992,
working his third night in ELES, Duncan re-injured his back.
Duncan reported the injury to his supervisor, John Weston,
who referred him to WMATA's Associate Medical Director,
Dr. Mary O'Donnell. Duncan also saw his orthopaedist, Dr.
Harvey N. Mininberg. At that time, Dr. Mininberg limited
Duncan's lifting to no more than 20 pounds. See Joint
Appendix (JA) 60. After another visit in late January 1993,
Dr. Mininberg confirmed the restriction. See id. 61.
The medical restriction precluded Duncan from returning
to his job in ELES. Weston told Duncan that no light duty
position was available in ELES and Duncan was placed on
leave without pay. Between December 1992 and August 1993
Duncan periodically contacted Weston and Weston's supervi-
sor to inquire about light-duty work. Duncan also applied for
two vacancies in his former AFC position, one in March and
the other in July. Apparently Duncan's first application was
not forwarded to the decisionmaker, Charles Beuttner, but
the second was. Beuttner declined to interview Duncan for
the second position after learning that Duncan was in the
process of being terminated, see infra, and was "physically
disqualified." JA 307-08.
In mid-August 1993 Duncan received a letter from Weston
requesting that he schedule an appointment with Dr. O'Don-
nell and take with him all medical records dating from
February 1993 relevant to restrictions on duty as a parts
runner, including a statement from his treating physician
regarding his current condition. Duncan returned to Dr.
Mininberg who referred him to a neurologist he had seen
before, Dr. Najmaldin Karim. Dr. Karim was out of town
until September 1993. At his August 23 appointment with
Dr. O'Donnell, she was annoyed by his failure to bring the
requested information, told him to leave and said that he
likely would lose his job. Ultimately, Dr. Karim issued the
requested letter of evaluation on September 10, 1993. The
letter stated that Duncan could not perform heavy lifting but
could work in the AFC position. Believing WMATA already
had decided to fire him, however, Duncan never submitted
the letter to WMATA. Weston had drafted a letter of
termination on August 31, citing failure to respond to re-
quests from WMATA's medical office but the letter was not
sent until October 7, 1993.
Due to his impairment, Duncan could not perform any of
the jobs he had had before being employed by WMATA. He
inquired about some truck driving positions and eventually
acquired a light-duty, part-time position at Hertz Corporation
where he earned less money than he had earned with
WMATA.
II.
We review 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. See Curry v. District of Columbia, 195 F.3d 654, 658-
59 (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).
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 uses the familiar
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
that framework, an ADA plaintiff must prove that "he had a
disability within the meaning of the ADA, that he was 'quali-
fied' for the position with or without a reasonable accommoda-
tion, and that he suffered an adverse employment action
because of his disability." Swanks v. WMATA, 179 F.3d 929,
934 (D.C. Cir. 1999). Thus "the threshold issue is whether
plaintiff had a 'disability.' " E.g., Weber v. Strippit, Inc., 186
F.3d 907, 912 (8th Cir. 1999); accord Smith v. Midline Brake,
Inc., 180 F.3d 1154, 1161 (10th Cir. 1999).
The ADA defines a "disability" as "a physical or mental
impairment that substantially limits one or more of the major
life activities of [an] individual."1 42 U.S.C. s 12102(2)(A).
In analyzing whether a plaintiff has established a disability
under this provision, the United States Supreme Court fol-
lows three steps: (1) it considers whether the plaintiff's
condition was a physical impairment; (2) it identifies the life
activity upon which plaintiff relies and determines whether it
constitutes a major life activity under the ADA; and (3) it
decides whether the impairment substantially limited the
major life activity. See Bragdon v. Abbott, 524 U.S. 624, 631
(1998). The parties to this appeal agree that Duncan's degen-
erative disc disease was a physical impairment and that
"working" is the activity involved and that it is a major life
activity under the ADA. See, e.g., Brief of Appellant, at 16;
Brief of Appellee, at 15-19. Therefore, the issue is whether
Duncan's back impairment substantially limited his ability to
work. The Supreme Court recently considered what "sub-
stantially limits" means in the context of one's ability to work
in Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, 2150-51
(1999). The Court first noted that the term "substantial[ ]"
suggests "considerable" or "specified to a large degree." 119
S. Ct. at 2150. It noted the definition of "substantially limits"
as "unable to perform" or "significantly restricted" contained
in the regulations of the Equal Employment Opportunity
Commission (EEOC). Id. at 2150-51 (quoting 29 C.F.R.
ss 1630.2(j)(1)(i), (ii) (1998)). The Court then clarified what a
plaintiff must show to demonstrate that an impairment sub-
stantially limited his ability to work:
When the major life activity under consideration is that
of working, the statutory phrase "substantially limits"
__________
1 The ADA also protects individuals who have "a record of such
an impairment" and those whose employers "regard[ ] as having
such an impairment." 42 U.S.C. s 12102(2). Duncan makes no
claim under either alternative approach.
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.
Id. at 2151 (emphasis added). The Sutton Court stressed
that "whether a person has a disability under the ADA is an
individualized inquiry," id. at 2147 (citing Bragdon, 524 U.S.
624), and noted several factors courts "should consider" when
making this determination, including the accessible geograph-
ical area and the number of similar jobs within that area from
which the individual also is disqualified. Id. at 2151. Ulti-
mately in Sutton, the Court held that the plaintiffs' disqualifi-
cations from their current jobs due to impairment did not
establish that they were substantially limited in their ability
to work, particularly where other jobs utilizing their skills
were available to them. See id.
Claiming he presented evidence sufficient to sustain the
jury verdict, Duncan points to the testimony of Drs. Minin-
berg and Karim that his degenerative disc disease was a
permanent condition necessitating a permanent restriction on
lifting, as well as his educational background, lack of skills,
lack of experience outside heavy labor and inability to find
similar employment. Duncan also cites the EEOC's interpre-
tive guidelines which the Supreme Court noted in Sutton and
which provide in part:
[A]n individual does not have to be totally unable to work
in order to be considered substantially limited in the
major life activity of working. An individual is substan-
tially limited in working if the individual is significantly
restricted in the ability to perform a class of jobs or a
broad range of jobs in various classes, when compared
with the ability of the average person with comparable
qualifications to perform those same jobs. For example,
an individual who has a back condition that prevents
the individual from performing any heavy labor job
would be substantially limited in the major life activity
of working because the individual's impairment elimi-
nates his or her ability to perform a class of jobs. This
would be so even if the individual were able to perform
jobs in another class, e.g., the class of semi-skilled jobs.
29 C.F.R. Pt. 1630.2(j), App. (emphasis added).
WMATA insists that Duncan failed to prove his degenera-
tive disc disease substantially impaired his ability to work.
While conceding that Duncan, through medical testimony,
established a lifting restriction of approximately 20 pounds,2
WMATA argues he did not establish, as he must, that he was
thereby disqualified from a "broad class of jobs" as Sutton
instructs. WMATA cites Duncan's failure to proffer expert
testimony from a vocational rehabilitation specialist and testi-
mony or statistical evidence regarding the numbers of jobs
from which he was disqualified. Other than relying on his
limited educational background and work experience, Duncan
offers only his testimony that he inquired about some truck
driving positions.
Other circuits have addressed claims involving arguments
similar to Duncan's and have found the claims faulty for lack
of evidence regarding the jobs the plaintiffs' impairments
preclude them from performing.3 In Colwell v. Suffolk Coun-
__________
2 Dr. Karim's September 1993 evaluation, which Duncan did not
submit to WMATA, and the testimony of both doctors at trial
indicated that the previous 20-pound restriction was a good guide-
line but that Duncan could also lift somewhat heavier objects.
3 The dissent cites cases from other circuits finding triable issues
of fact on records arguably similar to the record here. Most of
those cases predate Sutton, however. See Diss. Op. at 8-11. The
one case the dissent cites which was decided after Sutton, Welling-
ton v. Lyon County School District, 187 F.3d 1150 (9th Cir.1999),
did not cite Sutton. A later opinion from that circuit, Broussard v.
University of California, 192 F.3d 1252 (9th Cir.1999), does cite
Sutton and is consistent with our resolution here. In Broussard
ty Police Department, 158 F.3d 635, 644-45 (2d Cir. 1998), the
Second Circuit held that the plaintiffs, who complained of
limitations resulting from back injuries, failed to show they
were significantly restricted from working in a class or broad
range of jobs. With regard to one plaintiff, the court said
that "[w]ithout 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 deter-
mine that [plaintiff] was substantially limited in his ability to
work." 158 F.3d at 645 (internal quotation marks omitted).
Accord Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8th
Cir. 1997). Similarly, in Bolton v. Scrivener, Inc., 36 F.3d 939(10th Cir. 1994), the court examined the medical evidence
tending to establish that the plaintiff suffered from a perma-
nent partial disability but held it insufficient. Noting that
such evidence "does not address [plaintiff's] vocational train-
ing, the geographical area to which he has access, or the
number and type of jobs demanding similar training from
which [he] would also be disqualified," the Tenth Circuit
found the medical evidence relevant to the nature, severity,
duration and impact of the injury but insufficient to show how
plaintiff's ability to perform a class or broad range of jobs
was affected. Bolton, 36 F.3d at 944. See also Muller v.
Costello, 187 F.3d 298, 313 (2d Cir. 1999) (plaintiff's failure to
present evidence that he was precluded from jobs other than
correctional officer in his geographic area and plaintiff's
insistence that his class of jobs be limited to correctional
__________
the court stated that surviving a motion for summary judgment
"require[s] at least some evidence from which one might infer that
[plaintiff] faced 'significant restrictions' in her ability to meet the
requirements of other jobs." Id. at 1259 (quoting Davidson v.
Midelfort Clinic, Ltd., 133 F.3d 499, 507 (7th Cir.1998)). Accord-
ingly, the court declared that the existence of a genuine issue of fact
turned on its evaluation of the declaration of a vocational rehabilita-
tion specialist, which was "the only evidence which might show that
[plaintiff] is barred from significant percentages of available em-
ployment in the [geographical] area" because of her impairment.
192 F.2d at 1257. In the end, the court found that the declaration
lacked a medical foundation and affirmed summary judgment in
favor of the defendant.
officer "compelled" holding of insufficient evidence of substan-
tial limitation on major life activity of working).
Several cases involve a plaintiff with a limitation similar to
Duncan's. In Thompson v. Holy Family Hospital, 121 F.3d
537 (9th Cir. 1997), the Ninth Circuit addressed a lifting
restriction of no more than 25 pounds on a regular basis and
more only rarely. The court found the plaintiff failed to
prove a substantial limitation despite having established the
lifting restriction: "[Plaintiff] points to no evidence that the
restrictions ... preclude her from engaging in an entire class
of jobs. Nor does she offer the information relevant to this
particularized determination." 121 F.3d at 540. The Thomp-
son court also cited decisions from other circuits finding
similar lifting restrictions not substantially limiting. See id.(citing Williams v. Channel Master Satellite Sys., Inc., 101
F.3d 346, 349 (4th Cir. 1996) (25-pound lifting limitation, as
matter of law, "does not constitute a significant restriction on
one's ability to lift, work, or perform any other major life
activity"); Aucutt v. Six Flags Over Mid-America, Inc., 85
F.3d 1311, 1319 (8th Cir. 1996) (25-pound lifting restriction
did not substantially limit any major life activities); Ray v.
Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996) (plaintiff not
substantially impaired by limitation on heavy lifting where he
otherwise could lift and reach)); see also Snow, 128 F.3d at
1207 ("[A] general lifting restriction imposed by a physician,
without more, is insufficient to constitute a disability within
the meaning of the ADA.").
Duncan attempts to distinguish himself from the plaintiffs
in the cases above with the claim that he established substan-
tial limitation by showing he has a limited educational back-
ground, is unskilled and has performed only jobs requiring
heavy lifting. Duncan's third distinguishing factor deserves
little credence in light of his experience as an AFC parts
runner, a position that requires no heavy lifting (and that he
claims he is able to perform without assistance). On the
whole, however, Duncan simply offers no evidence we can
weigh in using the factors the Supreme Court tells us to use.
The evidence he does offer is his testimony that he inquired
about some truck driving positions, see JA 136-38, but he
could name no other kind of job he investigated as part of his
effort to find employment. See id. 138; see also Sutton, 119
S. Ct. at 2151 ("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.").
In short, Duncan completed only half of the puzzle. He
established that he had an impairment that may have sub-
stantially limited his ability to work but he failed to show that
his impairment in fact did substantially limit his ability to
work. Duncan relied on his limited educational background
and the fact that most of his earlier unskilled work involved
heavy lifting which he could no longer perform. Duncan,
however, did not demonstrate what jobs were available to
unskilled workers in his geographical area and thus could not
show that his impairment precluded him from performing
those jobs.4 Duncan's limited "search" for another job hardly
__________
4 We reject the example included in the EEOC interpretive
guidelines regarding an individual with a back condition preventing
him from performing heavy labor because it is at odds with Sutton.
Guiding our consideration--and rejection--of the interpretive
guidelines found at 29 C.F.R. Pt. 1630.2(j), App., is the Supreme
Court's acknowledgment that "[n]o agency ... has been given
authority to issue regulations implementing the generally applicable
provisions of the ADA," Sutton, 119 S. Ct. at 2145 (citations
omitted), coupled with its decision not to reach the issue of what
deference, if any, courts owe the EEOC regulations. See id.("Because both parties accept these regulations as valid, and deter-
mining their validity is not necessary to decide this case, we have no
occasion to consider what deference they are due, if any."). Al-
though we defer to EEOC regulations where appropriate, see, e.g.,
Bell v. Brown, 557 F.2d 849, 855 (D.C. Cir. 1977) ("[A]n administra-
tive interpretation of a statute by an agency entrusted with its
administration commands great deference in the courts."), we de-
cline to do so with its interpretive guidelines where, as here, they
lead to a result contrary to the one Supreme Court precedent leads
to. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 n.6
(1986) ("EEOC guidelines are properly accorded less weight than
administrative regulations declared by Congress to have the force
of law."); see generally Skidmore v. Swift & Co., 323 U.S. 134(1944) (weight of agency's interpretation of statute "will depend
informs us what positions were generally available in his
geographic area for unskilled workers, much less for workers
with a lifting restriction like his. Not only have our sister
circuits required this type of evidence but the Supreme Court
has told lower courts to consider these factors when making
individualized determinations of disability. See Sutton, 119
S. Ct. at 2151. The evidence Duncan offered to establish that
his impairment substantially limited his ability to work is no
more than "merely colorable" and it is not significantly proba-
tive. Curry v. District of Columbia, 195 F.3d 654, 659 (D.C.
Cir. 1999). Therefore, we find the evidence insufficient to
support the jury's necessary finding that Duncan was a
person with a disability under the ADA. Accordingly, Dun-
can's claim fails as a matter of law.
For the foregoing reasons, the order of March 26, 1998
denying WMATA's motion for judgment as a matter of law is
reversed. The judgment on the jury verdict entered May 29,
1997 is vacated, as are the district court's post-trial orders
awarding attorney's fees and costs and granting Duncan
backpay and prejudgment interest.
So ordered.
__________
upon the thoroughness evident in its consideration, the validity of
its reasoning, its consistency with ... later pronouncements")
(emphasis added). We therefore decline to follow the EEOC's
guidelines here.
Edwards, Chief Judge, dissenting: On the record at hand,
there was sufficient evidence for the jury to conclude that Mr.
Duncan was disabled under the Americans with Disabilities
Act ("ADA"). The majority opinion proposes a standard of
proof in ADA cases that is unprecedented and unsupported.
The case law from our sister circuits does not support the
majority's position. And recent Supreme Court decisions
construing the ADA cannot be stretched to accommodate the
majority's rigid formulation of a plaintiff's burden of proof
under the statute. The jury's verdict in this case should
stand.
I. Analysis
A. Standard of Review
The defendant claims no legal error--i.e., no alleged im-
proper exclusions or admissions of evidence and no alleged
faulty jury instructions. If this case involved legal error that
was found not to be harmless, we would merely remand for a
new trial pursuant to the correct legal standard. See, e.g.,
Griffin v. Washington Convention Ctr., 142 F.3d 1308, 1312
(D.C. Cir. 1998) (remanding for a new trial because of errone-
ous exclusion of evidence). The defendant here seeks much
more, however, claiming that the jury verdict should be set
aside and judgment entered against the plaintiff for lack of
sufficient evidence. In other words, in asking this court to
issue a judgment of law in its favor, the defendant seeks to
have us " 'intrude[ ] upon the jury's domain.' " McNeal v.
Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 640 (D.C. Cir.
1988) (quoting Carter v. Duncan-Higgins, Ltd., 727 F.2d
1225, 1227 (D.C. Cir. 1984)). This is something that a court
will rarely do, because neither the trial judge nor an appellate
court may " 'usurp[ ] the prime function of the jury as the
trier of the facts.' " Id. at 646 (quoting Lind v. Schenley
Indus., 278 F.2d 79, 90 (3d Cir. 1960) (en banc)); see also
Stenograph, L.L.C. v. Bossard Assoc., 144 F.3d 96, 100 (D.C.
Cir. 1998) (affirming district court's denial of a judgment as a
matter of law for defendants); Burns v. Washington Metro.
Area Transit Auth., 114 F.3d 219, 221 (D.C. Cir. 1997) (per
curiam) (reversing magistrate's grant of a judgment as a
matter of law for defendant); Barbour v. Merrill, 48 F.3d
1270, 1277 (D.C. Cir. 1995) (affirming district court's denial of
defendant's motion for a judgment as a matter of law);
Mackey v. United States, 8 F.3d 826, 830 (D.C. Cir. 1993)
(reversing district court's grant of a judgment as a matter of
law for defendant); Parker v. District of Columbia, 850 F.2d
708, 711 (D.C. Cir. 1988) (giving jury awards "the utmost of
deference and respect") (internal quotation marks omitted).
Under well-established case law that is designed " 'to protect
the litigants' right to jury trial,' " McNeal, 836 F.2d at 647(quoting Lind, 228 F.2d at 90), the courts are strictly limited
from either granting a new trial or granting a motion for
judgment as a matter of law on the grounds that the jury's
verdict was against the weight of the evidence. To this end,
the law is clear that a 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. 1999)
(internal quotation marks omitted), cert. denied, 68 U.S.L.W.
3389 (U.S. Dec. 13, 1999). In light of this very narrow
standard of review, there is no basis upon which to set aside
the jury verdict in favor of Mr. Duncan.
B. The ADA's Approach to Substantial Limitation of the
Major Life Activity of Working
The ADA defines a disability as, inter alia, "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). Mr. Duncan's back condition consti-
tutes a physical "impairment" under the statute. The only
question at issue here is whether he provided sufficient
evidence for a reasonable jury to conclude that his impair-
ment "substantially limits" any of his major life activities.
Equal Employment Opportunity Commission regulations
define "major life activities," nonexhaustively, as "caring for
oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working." 29 C.F.R.
s 1630.2(i) (1999). Mr. Duncan claims that his back condition
substantially limits his ability to work. The regulations say
that, with respect to working, "substantially limits" means
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.
Id. s 1630.2(j)(3)(i).
The regulations also indicate that
the following factors may be considered in determining
whether an individual is substantially limited in the ma-
jor life activity of "working":
(A) The geographical area to which the individual has
reasonable access;
(B) The job from which the individual has been dis-
qualified 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 dis-
qualified 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) (emphasis added).
The question that we face is whether the "evidence and all
reasonable inferences that can be drawn therefrom are so
one-sided that reasonable men and women could not dis-
agree," Swanks, 179 F.3d at 933 (internal quotation marks
omitted), that Mr. Duncan was not significantly restricted in
his ability to perform either a class of jobs or a broad range
of jobs. The majority essentially holds that, because Mr.
Duncan provided no quantitative evidence detailing the rele-
vant job market, no reasonable juror could conclude that he
was significantly restricted in his ability to perform either a
class or a broad range of jobs. In my view, the majority asks
too much of an ADA plaintiff, for neither the statute, regula-
tions, nor case law require quantitative evidence of the sort
that the majority here demands.
C. The Case Law From Our Sister Circuits
No relevant cases from within this circuit apply to the
question before this panel: What quantum of evidence is
required simply to reach the jury on the question of whether
a plaintiff is substantially limited in the major life activity of
working? The relevant law from our sister circuits, however,
compels the conclusion that the majority has answered this
question incorrectly.
It is beyond peradventure that a plaintiff cannot establish
that he is substantially limited in his ability to work simply by
showing that he is disqualified from one particular job. See
Sutton v. United Airlines, Inc., 119 S. Ct. 2139, 2151 (1999).
At the same time, however, courts do not require ADA
plaintiffs to prove that almost all jobs are outside their reach
in order to avoid summary judgment or a judgment as a
matter of law. See DePaoli v. Abbott Labs., 140 F.3d 668, 672
(7th Cir. 1998) ("[A]n employer cannot avoid liability by
showing that the employee is still generally capable of doing
some economically valuable work in the national economy.").
Rather, courts require "at least some evidence from which
one might infer that [the plaintiff] faced 'significant restric-
tions' in her ability to meet the requirements of other jobs."
Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 507 (7th Cir.
1998) (describing what plaintiff must do to defeat a motion for
summary judgment); see also Swain v. Hillsborough County
Sch. Bd., 146 F.3d 855, 858 (11th Cir. 1998) ("Although a
plaintiff seeking recovery under the ADA is not required to
provide a comprehensive list of jobs which she cannot per-
form, the person must provide some evidence beyond the
mere existence and impact of a physical impairment to sur-
vive summary judgment.").
In determining what "class of jobs" is relevant for deciding
whether the plaintiff is substantially limited in his ability to
work, the analysis must focus on the personal characteristics
of the particular plaintiff. Thus, a court must reasonably look
to a plaintiff's "expertise, background, and job expectations."
Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996).
Indeed, as one court has commented, "it is not easy to
envision how any other approach could be taken." Mondze-
lewski v. Pathmark Stores, Inc., 162 F.3d 778, 784 (3d Cir.
1998) (adopting approach "under which an individual's train-
ing, skills, and abilities are taken into account in determining
whether the individual is substantially limited in the major
life activity of working").
I can find no decision in which an appellate court has held
that an ADA plaintiff must present evidence similar to that
required by the majority in the instant case. The contrast
between the majority's stance and that taken by most other
courts is best demonstrated by considering the justifications
cited by courts that have granted summary judgment or a
judgment as a matter of law for defendants in disability
discrimination cases.
An obvious situation in which courts have granted summary
judgment or a judgment as a matter of law in favor of a
defendant arises where the plaintiff fails to allege exclusion
from a sufficiently broad class of jobs. See Muller v. Costello,
187 F.3d 298, 313 (2d Cir. 1999) (stating that the category of
"correctional officer" was not a "class of jobs" under the
ADA); Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847,
861 (5th Cir. 1999) (finding position of pharmacist not to be a
class of jobs); Patterson v. Chicago Ass'n for Retarded
Citizens, 150 F.3d 719, 725-26 (7th Cir. 1998) (finding insuffi-
cient evidence of a substantial limitation where plaintiff was
only disqualified from one sort of teaching position); Bridges
v. City of Bossier, 92 F.3d 329, 334-36 (5th Cir. 1996) (finding
that the category of firefighting jobs is not a "class of jobs");
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."). This
is not the situation here. Mr. Duncan demonstrated, with no
serious dispute, that he was precluded from performing jobs
requiring medium, heavy, and very heavy lifting; this is a
sufficiently broad class of jobs to satisfy the requirements of
the statute. Cf. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294,
303-04 (4th Cir. 1998) (finding maintenance supervisory work
to be a class of jobs); DePaoli, 140 F.3d at 673 (considering
"any assembly line job that required repetitive movement" to
be a class of jobs).
Another obvious situation in which courts have found evi-
dence insufficient to go to the jury arises where the plaintiff
was able to secure employment similar to that from which he
was allegedly disabled. See Gutridge v. Clure, 153 F.3d 898,
901 (8th Cir. 1998) (emphasizing fact that plaintiff found other
similar employment in finding no evidence of a substantial
limitation in the major life activity of working), cert. denied,
119 S. Ct. 1758 (1999); Patterson, 150 F.3d at 726 (finding
insufficient evidence of a substantial limitation where plaintiff,
upon termination, became employed with the Chicago school
system); Halperin v. Abacus Tech. Corp., 128 F.3d 191, 200
(4th Cir. 1997) (finding insufficient evidence to defeat a
motion for summary judgment where "there is absolutely no
indication that Halperin's lifting restriction significantly limits
his ability to perform a wide range of jobs" especially where
the record showed that Halperin could, and did, "find compa-
rable employment with a different employer"); Zirpel v.
Toshiba America Info. Sys., Inc., 111 F.3d 80, 81 (8th Cir.
1997) (finding no substantial limitation where plaintiff "has
had three jobs since her discharge, and she currently holds a
quality control position nearly identical to the one she held at
Toshiba"); Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir.
1994) (finding no substantial limitation where plaintiff "pre-
sented no evidence that her allergy [to tobacco smoke] fore-
closed her generally from obtaining jobs in her field" and
where defendant offered her a position in her field in a
nearby office); see also Heilweil v. Mount Sinai Hosp., 32
F.3d 718, 724 (2d Cir. 1994) (affirming grant of summary
judgment for defendant where plaintiff had a master's degree
and had been gainfully employed since receiving her degree).
In this case, Mr. Duncan and his physicians testified that he
was unable to perform jobs similar to that from which he was
fired. After moving out of his apartment because of his
inability to pay rent, Mr. Duncan eventually took a part-time
light-duty job with a rental car company in which he earns
approximately one-third of his previous salary.
The majority focuses attention, however, on a few decisions
that mention a lack of quantitative evidence with respect to
the relevant job market in holding that a plaintiff failed to
offer sufficient proof for a jury to conclude that he or she was
disabled. None of these cases can be stretched to support
the majority's apparent per se requirement that an ADA
plaintiff provide quantitative evidence detailing the job mar-
ket. Rather, they establish the relevance, not the necessity,
of such evidence.
For example, the instant case is easily distinguishable from
Thompson v. Holy Family Hospital, 121 F.3d 537 (9th Cir.
1997) (per curiam). The Thompson court did not treat
detailed statistical evidence as a sine qua non of an ADA
claim, but focused on the plaintiff's failure to provide job
market evidence in the face of the defendant's proffer of an
affidavit from a vocational counselor stating that the plaintiff,
a nurse, remained qualified for a number of registered nurse
positions. See id. at 540 (noting, in addition, that plaintiff
remained employed in the health care industry). The defen-
dant made no such showing here.
Similarly, in Bolton v. Scrivner, 36 F.3d 939 (10th Cir.
1994), the court noted the lack of quantitative evidence as well
as the lack of any evidence regarding the plaintiff's vocational
training and the geographical area to which he had access.
See id. at 944. The Bolton court nowhere suggested that
detailed quantitative evidence on the relevant job market was
essential to the plaintiff's case. Here, apparently contrary to
the plaintiff in Bolton, Mr. Duncan did provide testimony
regarding his work experience, education, and vocational
training.
The Muller decision is also distinguishable on its facts. In
Muller, the defendant had identified several jobs for which
the plaintiff remained qualified, and the plaintiff stubbornly
insisted that "correction officer" was a class of jobs. Because
the plaintiff presented no evidence that he was precluded
from jobs other than correction officer, the court had no real
choice but to issue a judgment as a matter of law for the
defendant. See 187 F.3d at 313.
Finally, the language taken by the majority from Colwell v.
Suffolk County Police Department, 158 F.3d 635, 645 (2d Cir.
1998), cert. denied, 119 S. Ct. 1253 (1999), is not inconsistent
with a jury verdict in favor of Mr. Duncan. Unlike the
plaintiff in Colwell, whose "only evidence concerned the gen-
eral restrictions imposed by his doctor," id., Mr. Duncan also
provided evidence as to his education and vocational history.
That the plaintiff in Colwell was faulted for not providing
evidence of the "kinds of jobs," id. (internal quotation marks
omitted), from which he was disqualified does not mean that
the Colwell court expected detailed quantitative evidence of
the relevant job market. There is no indication that the
Second Circuit would have been dissatisfied if the plaintiff
had simply provided more and better qualitative evidence
from which a jury could have inferred a substantial limitation
in his ability to work.
Most of the decisions from our sister circuits have found a
triable issue of fact regarding a plaintiff's disability without
even mentioning quantitative evidence detailing the relevant
job market. See Mustafa v. Clark County Sch. Dist., 157
F.3d 1169, 1175 (9th Cir. 1998) (per curiam) (finding that
plaintiff was substantially limited in his ability to work be-
cause of depression, post-traumatic stress disorder, and panic
attacks, while referring to no quantitative vocational evi-
dence); Cehrs v. Northeast Ohio Alzheimer's Research Ctr.,
155 F.3d 775, 781 (6th Cir. 1998) (finding genuine issue of
material fact regarding whether plaintiff's psoriasis substan-
tially limited her ability to work with no reference to evidence
regarding job availability); Baert v. Euclid Beverage, Ltd.,
149 F.3d 626, 630 (7th Cir. 1998) (finding plaintiff's evidence
sufficient to overcome summary judgment where he testified
to potential hospitalization due to insulin-dependent diabetes);
Criado v. IBM Corp., 145 F.3d 437, 442 (1st Cir. 1998)
(finding, in affirming district court's denial of employer's
motion for a judgment as a matter of law, that the jury could
have reasonably concluded that plaintiff's depression, testified
to by plaintiff and physician, "substantially impaired the
major life activity of working," while referring to no evidence
regarding classes of jobs for which she was disqualified);
Cline, 144 F.3d at 303-04 (finding a jury verdict of intentional
discrimination under the ADA supportable where plaintiff
showed that he was disqualified from maintenance superviso-
ry work, and where the court made no mention of vocational
evidence); Gilday v. Mecosta County, 124 F.3d 760, 765 (6th
Cir. 1997) (finding sufficient evidence to create a question of
fact as to whether plaintiff's diabetes is a disability under the
ADA because plaintiff's condition made him irritable and
unable to cooperate with co-workers, an ability "necessary for
all but the most solitary of occupations," without reference to
quantitative vocational evidence); Best v. Shell Oil Co., 107
F.3d 544, 548 (7th Cir. 1997) (finding that summary judgment
for defendant was improper even though the record did not
show how many jobs plaintiff was disqualified from because of
the impairment); Roush v. Weastec, Inc., 96 F.3d 840, 844
(6th Cir. 1996) (finding a genuine issue of material fact as to
whether bladder infection resulted in a substantial limitation
of working with no reference to testimony about job market);
Pritchard v. Southern Co. Svcs., 92 F.3d 1130, 1134 (11th Cir.
1996) (finding sufficient evidence for the case to go to the jury
where an engineer suffered symptoms of "marked fatigue,
lack of energy, lack of interest, poor concentration, memory
problems, suicidal thoughts, depressed affect, and irritability"
that limited her ability to work in nuclear engineering, even
though she was able to work as a non-nuclear engineer).
It is notable that most of the reported district court
decisions in the foregoing cases also made no mention of
quantitative vocational evidence. See Gilday v. Mecosta
County, 920 F. Supp. 792 (W.D. Mich. 1996); Baert v. Euclid
Beverage, Ltd., 954 F. Supp. 170 (N.D. Ill. 1997); Cehrs v.
Northeast Ohio Alzheimer Research Ctr., 959 F. Supp. 441(N.D. Ohio 1997). Indeed, among the foregoing cases, the
only reported district court decision that did refer to quanti-
tative vocational evidence considered the evidence to disfavor
the plaintiff. See Pritchard v. Southern Co. Svcs., 1995 WL
338662, at *8-9 (N.D. Ala. Mar. 31, 1995) (finding that plain-
tiff did not allege sufficient evidence to support her disability
claim). Nonetheless, following review, the decision of the
court of appeals never even mentions the quantitative evi-
dence in reversing the district court's holding that the plain-
tiff had not alleged sufficient evidence to reach a jury. See
Pritchard, 92 F.3d at 1134.
Research indicates that most courts that have considered
facts similar to those before this court have concluded that
there was sufficient evidence for resolution of the issue by a
jury, even where there was no quantitative evidence detailing
the relevant job market. In the instant case, Mr. Duncan
adduced competent evidence that he was foreclosed from
medium and heavy lifting jobs, that he had worked in jobs
requiring heavy lifting in the past, that he never graduated
from high school, and that he did not have computer training,
clerical experience, or office skills. Given this testimony,
there was sufficient evidence for the jury to conclude that Mr.
Duncan was foreclosed from a class of jobs "utilizing similar
training, knowledge, skills or abilities," 29 C.F.R.
s 1630.2(j)(3)(ii)(B), to the job at WMATA, for which he was
otherwise qualified. See Wellington v. Lyon County Sch.
Dist., 187 F.3d 1150, 1155 (9th Cir. 1999) (question of fact as
to whether plaintiff is disabled exists where plaintiff had a
high school degree, his work experience was limited to manu-
facturing, construction, heavy maintenance and plumbing, and
no evidence was presented to suggest that jobs were available
for which a person with plaintiff's skills, training, and abilities
was qualified); Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 11-
12 (1st Cir. 1999) (finding sufficient evidence for a jury to find
disability because the "inability to lift heavy objects and
perform repetitive manual tasks can translate across a broad
spectrum of physically demanding jobs," where plaintiff testi-
fied as to his limited job experience, education, and skills, and
physician testified that plaintiff was precluded from a "lot" of
jobs); Cochrum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th
Cir. 1996) (finding a genuine dispute of material fact as to
whether plaintiff who worked in coal mine was substantially
limited in working where plaintiff provided evidence that he
could perform "no overhead work, heavy lifting, or pulling
and pushing out from his body," because these restrictions
"might apply to a broad range of jobs, and are more than job
specific").
In short, the weight of the case law from our sister circuits
indicates that the existence of Mr. Duncan's disability should
be evaluated based upon his individual characteristics, that he
must show that he is disqualified from more than one particu-
lar job, and that relevant proof to determine whether he is
disabled may include his education, work history, and evi-
dence of the job market. Other courts have been more likely
to focus on the inadequacy of quantitative vocational evidence
where the defendant has made a showing regarding the
plaintiff's eligibility for employment. The defendant made no
such showing in this case. Mr. Duncan offered more than
enough to have his case heard and decided by a jury. And
this court acts beyond its authority in taking the case from
the jury.
D. Relevant Supreme Court Case Law
The Supreme Court's recent pronouncements on the ADA
do not give cause for this court to second-guess the jury in
this case. In Murphy v. United Parcel Service, Inc., 119
S. Ct. 2133 (1999), the Court reviewed a grant of summary
judgment against an employee who was dismissed from his
job as a UPS mechanic because of his high blood pressure.
The employee argued in part that UPS regarded him as
disabled because of his high blood pressure, alleging that the
company regarded hypertension as substantially limiting him
in the major life activity of working when, in fact, his hyper-
tension did not limit his ability to work. See id. at 2137. The
employee was fired from his job because Department of
Transportation regulations require that drivers of commercial
motor vehicles not have hypertension. See id. at 2136. The
Court found that, at most, the employee was regarded as
unable to perform only one particular job, which is insuffi-
cient to show that he is regarded as substantially limited in
the major life activity of working. See id. at 2138-39. The
Court noted that the employee "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. at 2139. It was
undisputed, according to the Court, that in fact petitioner was
"generally employable as a mechanic." Id. This lack of
evidence put forward by petitioner combined with the uncon-
troverted evidence put forth by respondent that he could
"perform jobs such as diesel mechanic, automotive mechanic,
gas-engine repairer, and gas-welding equipment mechanic"
convinced the Court that petitioner was not regarded as
substantially impaired in the major life activity of working.
Id. The Court's decision nowhere suggests that an ADA
plaintiff must present quantitative evidence within the rigid
formula devised by the majority here in order to demonstrate
a substantial limitation in the major life activity.
In Sutton, two myopic sisters were rejected from a pilot
position because they did not meet United's minimum vision
requirement. Their suit was dismissed for failure to state a
claim upon which relief could be granted. See Sutton, 119
S. Ct. at 2144. The petitioners alleged, inter alia, that
United mistakenly regarded their physical impairments as
substantially limiting them in the major life activity of work-
ing. See id. at 2150. The Court rejected this argument,
again finding that petitioners had only alleged preclusion
from one job, that of global airline pilot. See id. at 2151.
According to the Court,
[t]o 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.
Id. After noting that petitioners had only alleged that Unit-
ed regarded them as being ineligible for one particular job,
the Court observed that "there are a number of other posi-
tions utilizing petitioners' skills, such as regional pilot and
pilot instructor to name a few, that are available to them."
Id. In Sutton, then, as opposed to the instant case, the
plaintiffs could only allege exclusion from one particular job,
which has long been insufficient to support a claim of disabili-
ty under the ADA.
The majority attempts to evade the weight of authority
from our sister circuits by drawing a line between pre-Sutton
and post-Sutton cases. See Maj. Op. at 7 n.3. This attempt-
ed distinction is unconvincing absent some explanation as to
why quantitative evidence regarding the available job market
would be more relevant in a post-Sutton inquiry. The majori-
ty cites Sutton, 119 S. Ct. at 2151, to say that there are
several factors courts "should consider" in assessing claims
under the ADA, as if to suggest that a plaintiff must produce
quantitative evidence detailing the relevant job market. See
Maj. Op. at 6. This is not what Sutton says. Rather, in the
section of the Sutton opinion cited by the majority, the
Supreme Court merely notes that
[t]he EEOC further identifies several factors that courts
should consider when determining whether an individual
is substantially limited in the major life activity of work-
ing, including the geographical area to which the individ-
ual has reasonable access, and "the number and types of
jobs utilizing similar training, knowledge, skills or abili-
ties, within the geographical area, from which the indi-
vidual is also disqualified." ss 1630.2(j)(3)(ii)(A), (B).
Sutton, 119 S. Ct. at 2151. Nothing in the EEOC regula-
tions, however, says that a plaintiff must in every case proffer
quantitative evidence detailing the relevant job market. In-
deed, the relevant regulations both pre-Sutton and post-
Sutton suggest that courts may look to the available job
market as one among several relevant factors in evaluating
whether or not an individual is disabled. Sutton does nothing
to change this.
The majority's treatment of post-Sutton cases is also un-
convincing. See Maj. Op. 7 n.3. The majority attempts to
diminish the decision in Wellington by citing a later decision
from the Ninth Circuit, Broussard v. University of Califor-
nia, at Berkeley, 192 F.3d 1252 (9th Cir. 1999). The court in
Broussard, however, found the expert's vocational report to
be unreliable for two reasons ignored by the majority: the
expert assumed, based on no documented evidence, that the
plaintiff had a lifting restriction; and the expert incorrectly
assumed that the plaintiff could only type for 15 minute
intervals when testing had established she could type for 50
minute intervals. See Broussard, 192 F.3d at 1258. Obvious-
ly, in such circumstances, an expert's testimony should be
rejected as unreliable. More importantly, Broussard cites
Bolton v. Scrivner approvingly, indicating the relevance of
three separate types of evidence for the purposes of establish-
ing a disability: a plaintiff's vocational training, the geograph-
ical area to which he has access, or the number and types of
jobs from which a plaintiff is disqualified. See Broussard,
192 F.3d at 1258 (citing Bolton, 36 F.3d at 944).
Significantly, Broussard makes it clear that a plaintiff's
burden under the ADA is nothing like the test enunciated by
the majority in this case. Rather, as the Ninth Circuit notes:
To defeat the University's motion for summary judg-
ment, Broussard needed to "identify what requirements
posed by the class of [animal care] jobs ... were proble-
matic in light of the limitations that [CTS] imposed on
her. This is not an onerous requirement, but it does
require at least some evidence from which one might
infer that [plaintiff] faced 'significant restrictions' in her
ability to meet the requirements of other jobs." David-
son v. Midelfort Clinic, Ltd., 133 F.3d 499, 507 (7th
Cir.1998). Broussard has failed to meet this require-
ment.
Broussard, 192 F.3d at 1259. The court's references to "not
an onerous requirement," "at least some evidence," and "one
might infer" are a far cry from what the majority seeks here.
Finally, and most tellingly, Broussard cites Sutton merely
to say that the plaintiff's "inability to perform the specialized
job of animal technician for the transgenic mice does not
constitute a substantial limitation." Id. The court drew
nothing more from Sutton.
As one of our sister circuits has observed, in the context of
proving a substantial limitation of the major life activity of
working, Sutton and Murphy principally stand for the propo-
sition that an ADA plaintiff must "do more than allege that he
is regarded as having an impairment which prevents him
from working at a particular job." Shipley v. City of Univer-
sity City, 195 F.3d 1020, 1023 (8th Cir. 1999). This is not an
earth-shaking notion, nor is it one that shatters the founda-
tion of the ADA. However, that a plaintiff is not "disabled"
merely because he or she cannot perform a preferred job is a
far cry from saying that, in order to prevail under the ADA, a
plaintiff must in every case proffer expert testimony from a
vocational specialist and statistical evidence regarding the
numbers of jobs from which he was disqualified. In adopting
this rule, the majority essentially holds that, in order to
prevail under the statute, ADA plaintiffs must prove, with
quantitative certainty, that almost all jobs are outside their
reach. The statute does not require this, nor do the opinions
from the Supreme Court. This rigid formulation simply
rewrites the statute--something we have no authority to do--
and virtually ensures that very few plaintiffs will ever prevail
under the ADA in this circuit.
II. Conclusion
The jury's verdict in this case should stand. Under the
very narrow standard of review that controls this court in this
case, there is no basis upon which to take the case from the
jury. The judgment of the District Court should be affirmed.