Duncan v. Washington Metropolitan Area Transit Authority , 240 F.3d 1110 ( 2001 )

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Concurring opinion filed by Circuit Judge RANDOLPH, with whom Circuit Judges STEPHEN F. WILLIAMS and SENTELLE join.

Concurring opinion filed by Circuit Judge TATEL.

Dissenting opinion filed by Chief Judge HARRY T. EDWARDS-

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellant Washington Metropolitan Area Transit Authority (WMATA) challenges the district court’s denial of its post-trial motion for judgment as a matter of law in this discrimination action brought by appellee Jimmy Duncan under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., (ADA). Because Duncan offered no significantly probative evidence below of the number and types of positions available in his local job market so as to demonstrate that his back impairment substantially limits his ability to work, we hold that he failed to establish he was “disabled” under the ADA. The district court therefore erred in denying WMATA’s motion.

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

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

On December 22, 1994 Duncan filed suit in the district court alleging WMATA violated the ADA by discharging him on account of a disability and by failing to reasonably accommodate his disability. After a five-day trial the jury returned a verdict on May 27, 1997, finding WMATA violated the ADA as alleged and awarding Duncan compensatory damages of $125,000 on his wrongful termination claim and $125,000 on his reasonable accommodation claim. WMATA filed a posttrial motion for judgment as a matter of law or, alternatively, for a new trial. The district court denied the motion in a memorandum opinion and order filed March 26,1998. In subsequent orders the court awarded Duncan reinstatement with back pay, attorney’s fees and costs and pre-trial interest. On appeal WMATA challenges the denial of its post-trial motion and the various awards.

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

In an ADA case with no direct evidence of discrimination and where the defendant denies that its decisions were motivated by the plaintiffs disability, this court applies the familiar burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Marshall v. Federal Express Corp., 130 F.3d 1095, 1099 (D.C.Cir.1997). Under the McDonnell Douglas framework an ADA plaintiff must prove that “he had a disability within the meaning of the ADA, that he was ‘qualified’ for the position with or without a reasonable accommodation, and that he suffered an adverse employment action because of his disability.” Swanks v. WMATA, 179 F.3d 929, 934 (D.C.Cir.1999). The ADA defines a “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual.” 42 U.S.C. § 12102(2)(A). Throughout this litigation, Duncan has maintained that his degenerative disc disease, which limits his lifting to no more than 20 pounds, fits this definition because it is a physical impairment that limits his major life activity of “working.” WMATA responds that Duncan failed to establish at trial that his back condition in fact “substantially limits” his ability to work.¹ We agree.

In Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the United States Supreme Court provided guidance on the meaning of the phrase “substantially limits”:

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

When the major life activity under consideration is that of working, the statutory phrase “substantially limits” requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.... To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.

527 U.S. at 491-92,119 S.Ct. 2139 (citation omitted). This passage makes clear that whether an impairment substantially limits the major life activity of working depends primarily on the availability of jobs for which the impaired person qualifies. The Supreme Court further instructed that this is “an individualized inquiry,” id. at 483, 119 S.Ct. 2139 (citing Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)), and that courts should consider such factors as “the geographical area to which the individual has reasonable access and ‘the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the geographical area, from which the individual is also disqualified,’ ” id. at 491-92, 119 S.Ct. 2139 (citing & quoting 29 C.F.R. pt. 1630, App. § 1630.2(j)(3)(ii)(A), (B)²). In sum, to establish substantial limitation of working activity under the ADA, a plaintiff must allege and prove that in his particular circumstances, taking into account the appropriate factors, his impairment prevents him from performing a “substantial class” or “broad range” of jobs otherwise available to him.

Duncan asserts he sufficiently demonstrated substantial limitation through expert medical testimony that his back condition and lifting restriction are permanent and through evidence of his age, limited skills, education and experience and of his inability to find comparable employment after his discharge. The cited evidence tells us little or nothing, however, about the number and types of jobs in the Washington, D.C. area for which Duncan is qualified and which are therefore available to him. There may be numerous local positions that do not require heavy or medium lifting — such as the AFC parts runner position at WMATA for which Duncan twice applied after his injury and for which he acknowledges in his complaint he was qualified. See Amended Complaint at 3, 4 (filed March 6, 1996). Or there may be very few such jobs. The jury was left in the dark with no significantly probative evidence addressing the factors set out in Sutton.³ Duncan points to his own testimony that he made “inquiries” about or applied for truck driving jobs but that they all required heavy lifting.⁴ This sparse anecdotal evidence, however, cannot support the required jury finding that Duncan was substantially limited in his ability to find work because his impairment disqualified him from a substantial class or broad range of jobs in the Washington area. At most Duncan’s testimony shows that he was not qualified for the particular kind of job — truck driver — for which he chose to apply. It tells us nothing about whether he was qualified for the many other jobs in the Washington metropolitan employment pool. See Sutton, 527 U.S. at 492, 119 S.Ct. 2139 (“To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice.”). Without evidence of the number and kinds of jobs available to Duncan the jury had no basis to find he was disqualified from a substantial class or broad range of them. Because Duncan faded to offer evidence demonstrating he was substantially impaired in working, the jury’s liability verdict cannot stand.

In concluding that Duncan failed to meet his evidentiary burden, we hold that the ADA requires a plaintiff in Duncan’s position to produce some evidence of the number and types of jobs in the local employment market in order to show he is disqualified from a substantial class or broad range of such jobs; that is, the total number of such jobs that remain available to the plaintiff in such a class or range in the relevant market must be sufficiently low that he is effectively precluded from working in the class or range. See Sutton, 527 U.S. at 491-92, 119 S.Ct. 2139. The approach we adopt is consistent with most other circuits’. See Santiago Clemente v. Executive Airlines, Inc., 213 F.3d 25, 32-33 (1st Cir.2000) (concluding former flight attendant failed to show temporary hearing loss was disability under ADA because she offered “no evidence of how many jobs call for this ability, or that she was precluded from any class of jobs”); Webb v. Clyde L. Choate Mental Health & Dev. Ctr., 230 F.3d 991, 997 (7th Cir.2000) (upholding summary judgment against psychologist suffering from severe asthma, osteoporosis, and a weakened immune system because he “ha[d] not presented evidence that his condition prevents him from performing a class of jobs”); Taylor v. Nimock’s Oil Co., 214 F.3d 957, 961 (8th Cir.2000) (concluding former cashier with 40 hour week and 10 pound carry limit did not establish disability because she “presented no evidence to create a genuine issue of material fact about whether she could perform a class' of jobs with her restrictions”) (citing Berg v. Norand Carp., 169 F.3d 1140, 1145 (8th Cir.1999); Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 617-18 (8th Cir.1997)); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 645 (2d Cir.1998) (“Without specific evidence about ‘the kinds of jobs from which [an] impaired individual is disqualified,’ the jury could not perform the careful analysis that is necessary to determine that [a plaintiff] was substantially limited in his ability to work.”) (quoting Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir.1994)); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8th Cir.1997) (holding “general lifting restriction imposed by a physician, without more, is insufficient to constitute a disability within the meaning of the ADA” with regard to major life activity of working); see also Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir.1996) (“holding], as a matter of law, that a twenty-five pound lifting limitation — particularly when compared to an average person’s abilities — does not constitute a significant restriction on one’s ability to lift, work, or perform any other major life activity”); Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir.1996) (“[Inability to perform heavy lifting does not render a person substantially limited in the major activities of lifting or working.”); McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (holding woman with carpal tunnel syndrome and 20-pound lifting not disabled because “at best, her evidence supports a conclusion that her impairment disqualifies her from only the narrow range of assembly line manufacturing jobs that require repetitive motion or frequent lifting of more than ten pounds”). But see Wellington v. Lyon County Sch. Dist., 187 F.3d 1150, 1155 (9th Cir.1999) (holding evidence that impairment disqualified plaintiff from “metal fabrication, welding, ... heavy activities, carpentry, ... the use of a variety of tools to do maintenance and repairs, et cetera” coupled -with his anecdotal testimony he had to quit one plumbing job because he was “in too much pain to even continue” raised triable issue of fact on disability); cf. Burns v. Coca-Cola Enters., Inc., 222 F.3d 247 (6th Cir.2000) (upholding determination plaintiff was disabled because of district court’s finding impairment “precluded him from performing at least 50% of the jobs that he was qualified to perform given his educational background and experience” where finding was apparently based solely on 23-pound lifting limit and limited education and work experience); Mullins v. Crowell, 228 F.3d 1305, 1314 n. 18 (11th Cir.2000) (“[E]xpert vocational evidence, although instructive, is not necessary to establish that a person is substantially limited in the major life activity of working. Furthermore, a plaintiff could testify from his or her own extensive job search whether other jobs that he or she could perform were available in the geographical area.”). Further, the evidentia-ry burden we place on plaintiffs is not onerous. They need not necessarily produce expert vocational testimony, although such evidence might be very persuasive. In the proper case simple government job statistics may suffice.⁵ We leave it to counsel in future ADA cases to explore the various forms such evidence may take. Here we hold only that Duncan failed to produce any sort of significantly probative evidence on the subject.

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

So ordered.

RANDOLPH, Circuit Judge, with whom Circuit Judges WILLIAMS and SEN-TELLE join, concurring:

I agree with Judge Henderson’s opinion for the court. Although I also agree that the court should not decide whether working is a “major life activity” within the meaning of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12102(2), see maj. op. at 1111 n. 1, I think we should recognize the difficulties the issue presents.

The Supreme Court in Sutton v. United Air Lines, 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), also avoided deciding the question by “[a]ssuming without deciding that working is a major life activity.... ” The Court’s statement indicates that it thought the question was an open one. Before Sutton this was far from certain. School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), a case arising under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, stated in dicta that a person could be considered a handicapped individual if the person suffered from a physical impairment such as cosmetic disfigurement. Even though this sort of impairment “might not diminish a person’s physical or mental capacities,” it “could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment.” 480 U.S. at 283, 107 S.Ct. 1123. To support its point, the Court cited regulations implementing the Rehabilitation Act, which listed “working” as a major life activity. Id. at 283 n. 10, 107 S.Ct. 1123.

A section of the ADA provides that “nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 ... or the regulations issued by Federal agencies pursuant to such titles.” 42 U.S.C. § 12201(a). On the basis of this section, Bragdon v. Abbott, 524 U.S. 624, 632, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998), held that the Court must “construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.”

There may be ways of explaining the apparent inconsistency between Sutton on the one hand, and Bragdon and Arline on the other. Sutton, for instance, referred to EEOC regulations suggesting that “working be viewed as a residual life activity, considered, as a last resort, only ‘[i]f an individual is not substantially limited with respect to any other major life activity.’” 527 U.S. at 492, 119 S.Ct. 2139 (emphasis omitted) (quoting 29 C.F.R. pt. 1630, App. § 1630.20) (1998)). Sutton also identified “a conceptual difficulty”: if a ‘person claims to be excluded from work because of his impairment, it is circular for him to answer — when asked the nature of his impairment — “exclusion from work.” Id.

Another set of problems stems from these circumstances: to make “working” a major life activity is to create a residual category, one that matters only if the individual is not suffering from some serious physical or mental impairment. (If the individual is so suffering there is no need to consider working as a separate category. See Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 152 (3d Cir.1999); McAlindin v. County of San Diego, 192 F.3d 1226, 1233 (9th Cir.1999).) When “working” is used in this way, the existence of a disability will necessarily turn on factors other than the individual’s physical characteristics or medical condition. To illustrate, suppose there is an economic downturn and unemployment is high. Then more people will be found to be disabled as compared with a period when the gross domestic product is growing and unemployment is low. Why? Because the less likely it is that a person can find work the more likely that he is substantially limited in the major life activity of working' — ’that in other words he suffers from a disability. See Sutton, 527 U.S. at 491, 119 S.Ct. 2139. One must wonder whether people considered disabled in a poor economy can become not disabled if the economy turns around and more jobs become available. One must wonder as well how this can be squared with the ADA’s express purpose of supplying “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b) (italics added). Geographic disparity also cannot be avoided. Take two identical individuals with identical impairments working for the same company. One works in a sparsely populated rural area, the other in a large metropolis. The individual in the rural area would wind up being classified as disabled under the ADA more readily than the person in the major metropolitan area where more jobs are available.

From the employer’s point of view, the standards will hardly appear “clear,” 42 U.S.C. § 12101(b). When “working” is the allegedly impaired major life activity, how is the employer to determine whether the employee is disabled (and thus entitled to a reasonable accommodation)? The employer certainly cannot tell just by looking at the employee, or by consulting medical records, or by insisting upon a physical examination. Disability will depend on the job market, on whether there are jobs in some undefined region “utilizing an individual’s skills (but perhaps not his or her unique talents),” Sutton, 527 U.S. at 492, 119 S.Ct. 2139, jobs for which the employee is qualified. Exactly how the employer is to make that determination is far from certain. Suppose the employer does not acquire the information. Could the employer still be found to have discriminated “because of’ a disability, as the ADA requires for liability, if the employer does not know the employee’s job prospects? See 42 U.S.C. § 12112(a).

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

1 . WMATA concedes that Duncan has a physical impairment and, until its en hanc brief, did not dispute that working is a'major life activity” under the ADA. In light of our holding that Duncan did not demonstrate his impairment substantially limits his work activity, we need not and do not consider WMATA's belated assertion in its supplemental en banc briefs that working is not a major life activity but we assume arguendo that it is. Cf. Sutton v. United Air Lines, Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (making same assumption, while noting that "there may be some conceptual difficulty in defining 'major life activities' to include work”).

2 . The Sutton Court declined to resolve whether deference is owed to the Equal Employment Opportunity Commission's ADA regulations, 527 U.S. at 480, 119 S.Ct. 2139, but quoted this regulation’s factors approvingly, id. at 491-92, 119 S.Ct. 2139.

3 . We note that social security disability cases have found lifting restrictions not to constitute a disability. See, e.g., Cruze v. Chater, 85 F.3d 1320, 1322 (8th Cir.1996) (affirming denial of benefits to claimant who "possessed the residual functional capacity to perform the physical exertional and nonexertional requirements of work except for lifting and carrying of more than 20 pounds occasionally or 10 pounds frequently” and who, according to a vocational expert, therefore "could still perform work as a light cleaner, office helper or messenger, or mail clerk," which positions "exist in significant numbers in the national economy”); Lee v. Sullivan, 988 F.2d 789, 792 (7th Cir.1993) (affirming denial of benefits to claimant based on vocational testimony that person "with a tenth grade education, average to borderline intellect, and depression who can perform sedentary work with an option for alternate sitting and standing ... could be a cashier in a convenience store, a security guard, and a parking lot attendant” and that "there were approximately 1,400 of these positions in the greater Milwaukee metropolitan area which has a work force of 750,000”).

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

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