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E.E.O.C. v. J.B. HUNT TRANSPORT, INC.                                      69
                                 Cite as 321 F.3d 69 (2nd Cir. 2003)

cal in directing that any lack of clarity
must be resolved in favor of the insured.               EQUAL EMPLOYMENT OPPOR-
See Ferraiolo Const. Co., 584 A.2d at 609                  TUNITY COMMISSION,
(‘‘Any ambiguity must be resolved in favor                   Plaintiff–Appellant,
of a duty to defend.’’) (Maine law); Wil-
kin Insulation Co., 161 Ill.Dec. 280, 578                                  v.
N.E.2d at 930 (‘‘All doubts and ambiguities               J.B. HUNT TRANSPORT, INC.,
must be resolved in favor of the insured.’’)                    Defendant–Appellee.
(Illinois law); Lime Tree Vill. Cmty. Club
Ass’n, 980 F.2d at 1405 (‘‘If the allegations                     Docket No. 01–6084.
of the complaint leave any doubt as to the
duty to defend, the question must be re-                   United States Court of Appeals,
solved in favor of the insured.’’) (Florida                        Second Circuit.
law). Regardless of which of the three
                                                                  Argued: Jan. 9, 2002.
state’s laws applied, the potential for cov-
erage existed at the time CI refused to                          Decided: Feb. 5, 2003.
defend Auto Europe. The duty to defend
was therefore ‘‘clear’’ and, accordingly, the
district court properly awarded attorney’s
                                                         Equal Employment Opportunity Com-
fees.
                                                    mission (EEOC) commenced action pursu-
                                                    ant to the Americans with Disabilities Act
             VI. Conclusion                         (ADA), alleging that truckload motor carri-
                                                    er violated the ADA by discriminating
  The district court properly concluded
                                                    against over-the-road truck drivers who
that this insurance coverage dispute
                                                    used certain prescription medications. On
should be heard in Maine and resolved
                                                    parties’ cross-motions for summary judg-
pursuant to Maine law. Because CI’s duty
                                                    ment, the United States District Court for
to defend was clear, the district court
                                                    the Northern District of New York, Nor-
properly awarded attorney’s fees to Auto
                                                    man A. Mordue, J., 128 F.Supp.2d 117,
Europe.
                                                    granted summary judgment in favor of
  The judgment of the district court is             carrier, and EEOC appealed. The Court of
therefore affirmed.                                 Appeals, F.I. Parker, Circuit Judge, held
                                                    that applicants perceived as unsuitable for
                                                    position of over-the-road truck drivers
                                                    were not perceived as substantially limited
                                                    in major life activity of working, as would

             ,
                                                    establish ‘‘disability’’ under the ADA.

                                                          Affirmed.

                                                        Sotomayor, Circuit Judge, dissented
                                                    and filed opinion.

 leaves some ambiguity on whether allegations         based on non-intentional conduct. See, e.g.,
 of intentional conduct eliminate the duty to         Applestein, 377 So.2d at 231 (holding that
 defend pursuant to an intentional acts policy        allegations of malice and deliberate ‘‘ ‘attempt
 exclusion even when facts could be developed         to discredit’ ’’ negated coverage).
 at trial to support judgment for the plaintiff
70                      321 FEDERAL REPORTER, 3d SERIES


1. Federal Courts O776, 802                     5. Civil Rights O173.1
     The Court of Appeals reviews a dis-             Comments made by people other than
trict court’s grant of summary judgment         ultimate hiring authorities suggesting that
de novo, construing the evidence presented      certain applicants for position of over-the-
below in the light most favorable to the        road truck drivers were not suited to any
non-moving party.                               form of professional driving, based on their
                                                use of prescription medications with side
2. Federal Courts O759.1, 766
                                                effects that could impair driving ability,
    While the Court of Appeals may af-          were not sufficient to indicate that truck-
firm a district court’s grant of summary        load motor carrier thought applicants were
judgment on any ground with adequate            more broadly limited in major life activity
support in the record, it may not affirm        of working, so as to regard them as dis-
summary judgment where any evidence in          abled within meaning of ADA, where carri-
the record would support a reasonable in-       er had its own safety requirements above
ference in favor of the opposing party.         and beyond those of federal standards, and
3. Civil Rights O173.1                          it did hire some applicants on medications
                                                at issue. Americans with Disabilities Act
      Applicants’ perceived unsuitability for
                                                of 1990, § 3(2), 42 U.S.C.A. § 12102(2); 29
position of over-the-road truck drivers,
                                                C.F.R. § 1630.2(j)(3)(i).
based on their use of prescription medi-
cations with side effects that could impair     6. Civil Rights O173.1
driving ability, was not a perceived inabili-       A finding of perceived disability, for
ty to perform broad range or class of jobs,     purposes of a discrimination action under
but rather was limitation on particular job     the ADA, may not rest merely on a single
within larger group of jobs, and thus appli-    employer’s failure to hire a candidate.
cants failed to establish that they were        Americans with Disabilities Act of 1990,
perceived as substantially limited in major     § 2 et seq., 42 U.S.C.A. § 12101 et seq.
life activity of working, as would establish
‘‘disability’’ under the ADA. Americans         7. Civil Rights O240(2)
with Disabilities Act of 1990, § 3(2), 42            For purposes of a discrimination ac-
U.S.C.A.        § 12102(2);   29      C.F.R.    tion under the ADA, courts will not pre-
§ 1630.2(j)(3)(i).                              sume a mistaken assumption of disability
                                                based only on an employer’s decision not
4. Civil Rights O173.1
                                                to hire certain candidates. Americans
      Truckload motor carrier did not view      with Disabilities Act of 1990, § 2 et seq.,
applicants who were perceived unsuitable        42 U.S.C.A. § 12101 et seq.
for position of over-the-road truck drivers
based on their use of prescription medi-        8. Civil Rights O173.1
cations with side effects that could impair          Applicants for over-the-road truck
driving ability as unable to drive any          driver positions who suffered from condi-
trucks, so as to regard them as disabled        tions treated with prescription medications
within meaning of ADA, but rather per-          with side effects that could impair driving
ceived applicants as unfit to perform spe-      ability were not regarded as substantially
cific job of long-distance, freight-carrying,   limited in major life activity of working
tractor-trailer driving. Americans with         based on underlying condition itself, as
Disabilities Act of 1990, § 3(2), 42 U.S.C.A.   would establish ‘‘disability’’ under the
§ 12102(2); 29 C.F.R. § 1630.2(j)(3)(i).        ADA; rather, employer perceived appli-
E.E.O.C. v. J.B. HUNT TRANSPORT, INC.                                 71
                               Cite as 321 F.3d 69 (2nd Cir. 2003)

cants as unfit for positions based on use of      that the applicants in question had been
medications with dangerous side effects.          denied over-the-road driving positions with
Americans with Disabilities Act of 1990,          Hunt because of their use of medications
§ 3(2), 42 U.S.C.A. § 12102(2); 29 C.F.R.         with potentially harmful side effects, and
§ 1630.2(j)(3)(i); 49 C.F.R. § 391.41.            not as a result of an actual or perceived
                                                  disability or a record of disability as con-
                                                  templated by the Americans with Disabili-
                                                  ties Act of 1990, 42 U.S.C. § 12101, et seq.
                                                  (‘‘ADA’’). On appeal, the EEOC argues
  Julie L. Gantz, Equal Opportunity Em-
                                                  exclusively that Hunt regarded the reject-
ployment Commission (Nicholas M. Inzeo,
                                                  ed applicants as disabled, i.e., substantially
Acting Deputy General Counsel, Philip B.
                                                  limited from a major life activity, as de-
Sklover, Associate General Counsel, Vin-
                                                  fined by 42 U.S.C. § 12102(2)(C) because
cent J. Blackwood, Assistant General
                                                  of their use of certain medications. Be-
Counsel, on brief), for Plaintiff–Appellant.
                                                  cause we find that Hunt did not regard the
  James H. Hanson, Scopelitis, Garvin,            applicants as disabled as defined by the
Light & Hanson, Indianapolis, IN (Laurie          ADA, we affirm the decision of the district
T. Baulig, Scopelitis, Garvin, Light & Han-       court.
son, Washington, DC, Thomas J. Grooms,
Bond Schoeneck & King, Syracuse, NY, on
                                                                       II.
brief), for Defendant–Appellee.
                                                     J.B. Hunt Transportation, Inc. (‘‘Hunt’’)
  Before: JACOBS, F.I. PARKER,                    is the nation’s largest publicly held motor
SOTOMAYOR, Circuit Judges.                        carrier company. Hunt operates for-hire
                                                  property transport services in the forty-
  F.I. PARKER, Circuit Judge.
                                                  eight contiguous states, the District of Co-
   J.B. Hunt Transport, Inc. chose not to         lumbia, Canada, and Mexico. Its fleet in-
employ over-the-road truck drivers who            cludes 8,000 tractors, and it employs ap-
used prescription medications with side ef-       proximately 12,000 individuals to drive the
fects that might impair driving ability.          trucks. Of these employees, approximate-
The Equal Employment Opportunity Com-             ly 10,000 are the over-the-road (‘‘OTR’’)
mission argued that under the Americans           drivers whose positions are at issue in this
with Disabilities Act, Hunt’s decision vio-       case. These OTR drivers operate vehicles
lated the rights of job applicants using          weighing approximately 80,000 pounds
those medications. We disagree.                   over irregular routes under particularly
                                                  difficult work conditions, including sleep
                     I.                           deprivation, irregular work and rest cycles,
   Plaintiff–Appellant Equal Employment           inclement weather, long driving periods,
Opportunity Commission (‘‘EEOC’’) ap-             long layovers, irregular meal schedules,
peals from the February 8, 2001 decision          tight delivery schedules, en route delays,
of the United States District Court for the       night driving, accumulated fatigue, stress,
Northern District of New York (Norman             and extended periods of loud noise and
A. Mordue, Judge ) granting defendant             vibrations. According to Hunt, the large
J.B. Hunt Transport Inc.’s (‘‘Hunt’’ ’s) mo-      vehicle size and extreme driving conditions
tion for summary judgment and denying             faced by its OTR drivers warrant height-
plaintiff EEOC’s cross-motion for sum-            ened safety evaluations of those OTR driv-
mary judgment. The district court found           ers.
72                            321 FEDERAL REPORTER, 3d SERIES


   Like other motor carriers, Hunt is sub-               (‘‘Whiteside’’), based entirely on notations
ject to federal regulation under the De-                 in the 1993 edition of the Physician’s Desk
partment of Transportation’s Federal Mo-                 Reference (‘‘PDR’’). Whiteside divided
tor Carrier Safety Act Regulations                       the DRL into six columns labeled ‘‘name,’’
(‘‘FMCSAR’’). 49 C.F.R. § 301, et seq.                   ‘‘class,’’ ‘‘comment,’’ ‘‘restriction,’’ ‘‘treats,’’
(2001). These regulations establish mini-                and ‘‘1993 PDR page number.’’ In the
mum qualifications for any person driving                ‘‘restriction’’ column, Whiteside indicated
a commercial motor vehicle, as well as                   the impact a particular drug might have
minimum duties for motor carriers using                  on an applicant’s eligibility. Whiteside
OTR drivers. The regulations specifically                designated five categories of restrictions:
allow an operator to require and enforce                 ‘‘Rule Out Side [E]ffects,’’ ‘‘Not Permit-
‘‘more stringent requirements relating to                ted,’’ ‘‘Unsafe [E]ffects,’’ ‘‘Heart Condi-
safety of operation and employee safety                  tion,’’ and ‘‘Disqualifying Condition.’’ 1 An
and health’’, 49 C.F.R. § 390.3(d), and re-              applicant whose medication had a ‘‘Rule
quire operators to restrict drivers from                 Out Side Effects’’ notation was required to
operating vehicles ‘‘while the driver’s abili-           obtain a release from the prescribing doc-
ty or alertness is so impaired, or so likely             tor certifying that the applicant could
to become impaired, through fatigue, ill-                safely drive a tractor trailer truck while
ness, or any other cause, as to make it                  using the medication. An applicant taking
unsafe for him/her to begin or continue to               a ‘‘Not Permitted,’’ ‘‘Unsafe Effects,’’
operate the commercial motor vehicle.’’ Id.              ‘‘Disqualifying Condition,’’ or ‘‘Heart Con-
at § 392.3 (2001). A motor carrier is re-                dition’’ medication could not drive for
quired to ensure that drivers do not oper-               Hunt while using the indicated medi-
ate unless they are in compliance with the               cation.2 The notation ‘‘Unsafe Effects’’ in-
DOT regulations. 49 C.F.R. §§ 391.11,                    dicated either that the PDR cautioned
392.3, 392.4(b)(2001).                                   users against operating heavy equipment
                                                         or driving automobiles while taking the
     A.   The Drug Review List                           drug (noted as ‘‘warning on driving’’ in the
   Between September 1993 and May                        comment column) or that the drug caused
1994, in an effort to comply with the                    drowsiness, sedation, or a high incidence
FMCSAR in its hiring processes, Hunt                     of dizziness. A ‘‘Rule Out Side Effects’’
created a Drug Review List (‘‘DRL’’) of                  notation indicated that a medication could
medications known to have side effects                   cause side effects similar to, but less per-
that might impair driving ability. The                   vasive than, those warranting an ‘‘Unsafe
list, thirty-seven pages in length and in-               Effects’’ label. Finally, ‘‘Heart Condition’’
cluding over 836 medications, was com-                   indicated that the medication was general-
piled by Hunt’s Safety Department Di-                    ly used for heart problems that could dis-
rector of Compliance, David Whiteside                    qualify drivers under DOT regulations.

1.     The Court will use the corrected labels             these medications in the ‘‘Not Permitted’’ cat-
     ‘‘Rule Out Side Effects’’ for ‘‘Rule Out Side         egory.    Equal Employment Opportunity
     Affects’’ and ‘‘Unsafe Effects’’ for ‘‘Unsafe Af-     Comm’n v. J.B. Hunt Transp., Inc., 128
     fects’’ throughout the opinion.                       F.Supp.2d 117, 120 n. 2 (N.D.N.Y.2001); see
                                                           49 C.F.R. § 391.42(b)(12)(i) (prohibiting use
2.     The district court found that Whiteside mis-
                                                           of Schedule I drugs, amphetamines, narcot-
     takenly believed that the DOT prohibited
                                                           ics, and other habit-forming drugs); 49
     drivers from using any Schedule II–V medi-
     cations, rather than only Schedule I medi-            C.F.R. § 392.2 (same).
     cations, and that he therefore included all of
E.E.O.C. v. J.B. HUNT TRANSPORT, INC.                                    73
                                     Cite as 321 F.3d 69 (2nd Cir. 2003)

     B.   The Hunt Hiring Process                                            III.

   Upon receiving an application for a com-                EEOC filed its complaint in the United
mercial driving position, Hunt forwarded                States District Court for the Northern
the application to its Corporate Driver                 District of New York on October 24, 1997.
Personnel Department in Lowell, Arkan-                  Both sides moved for summary judgment.
sas for screening of motor vehicle, crimi-              EEOC alleged that Hunt violated the ADA
nal, and prior employment records and for               by discriminating against individuals with
a review of listed references. If an appli-             disabilities or ‘‘perceived’’ disabilities.
cant passed this first level of screening and           Hunt alleged that the DRL was a safety-
received a conditional employment offer,                related qualification standard addressing
the applicant underwent medical screen-                 serious business concerns. The district
ing, including questioning regarding the                court granted summary judgment for
applicant’s use of prescription medication              Hunt and denied EEOC’s summary judg-
for the last five years. Hunt used non-                 ment motion based on (1) its conclusion
medical personnel to conduct these screen-              that ADA protections did not extend to the
ings. If the applicant indicated use of a               excluded driver-applicants because the ap-
prescription drug, the reviewing employee               plicants were not, by virtue of their use of
consulted Hunt’s medical guidelines 3 and               certain medications, disabled within the
the DRL to determine the applicant’s med-               meaning of the ADA, and (2) its finding
ical eligibility.                                       that the EEOC had failed to contradict
                                                        Hunt’s assertion that its use of the DRL
                                                        as a safety measure was reasonable within
     C.   The EEOC Claim
                                                        DOT guidelines. Equal Employment Op-
   EEOC claims that Hunt improperly re-                 portunity Comm’n. v. J.B. Hunt Transp.,
jected 546 applicants in violation of the               Inc., 128 F.Supp.2d 117, 135–36 (N.D.N.Y.
ADA on the basis of a ‘‘blanket’’ exclusion-            2001). On appeal, EEOC abandoned its
ary policy. EEOC admits, however, that                  argument that the excluded applicants
Hunt hired several applicants who were                  were ‘‘disabled’’ under the ADA, claiming
using drugs prohibited under the DRL—in                 only that the district court erred by grant-
1995, two applicants using drugs labeled                ing summary judgment to Hunt when the
‘‘Disqualifying Condition’’ and eleven using            evidence supported the conclusion that
drugs labeled ‘‘Unsafe Effects,’’ and in                Hunt regarded the applicants as disabled
1996 and 1997, one applicant taking a ‘‘Dis-            because of their use of medications on the
qualifying Condition’’ drug and thirteen                DRL.
using drugs with ‘‘Unsafe Effects.’’ Prior
to commencing work, each of these new                                         IV.
employees provided Hunt with medical                      [1, 2] We review a district court’s
documentation from a treating physician                 grant of summary judgment de novo, con-
or health care provider certifying that he              struing the evidence presented below in
or she did not suffer from the potentially              the light most favorable to the non-moving
problematic side effects and could operate              party. Manning v. Utils. Mut. Ins. Co.,
a truck safely while taking the drug.                   254 F.3d 387, 391 (2d Cir.2001). While

3.     As the district court found, Hunt maintained       for Hunt unless he or she had been off such
     a restrictive policy on the use of drugs for         drugs for at least thirty days before commenc-
     psychological conditions separate from the           ing work. Hunt Medical Guidelines, April 11,
     DRL. An applicant was not eligible to drive          1996.
74                     321 FEDERAL REPORTER, 3d SERIES


this Court may affirm on any ground with       ‘‘disability,’’ on appeal, EEOC alleges only
adequate support in the record, we may         that the rejected OTR driver applicants
not affirm summary judgment where any          were ‘‘regarded as’’ disabled by Hunt
evidence in the record would support a         based on their use of certain medications,
reasonable inference in favor of the oppos-    invoking the statutory definition of disabil-
ing party. See McCarthy v. Am. Int’l           ity under § 12102(2)(C). As the Supreme
Group, Inc., 283 F.3d 121, 124 (2d Cir.        Court explained in Sutton v. United Air
2002); VKK Corp. v. Nat’l Football             Lines, Inc., ‘‘[t]here are two apparent
League, 244 F.3d 114, 119 (2d Cir.2001).       ways in which individuals may fall within
                                               this [§ 12102(2)(C) ] statutory definition:
  A.   The Statutory Framework and the         (1) a covered entity mistakenly believes
       Definition of ‘‘Disability.’’           that a person has a physical impairment
  The ADA provides a deceptively simple        that substantially limits one or more major
definition of disability:                      life activities, or (2) a covered entity mis-
  The term ‘‘disability’’ means, with re-      takenly believes that an actual, nonlimiting
  spect to an individual—                      impairment substantially limits one or
                                               more major life activities.’’ 527 U.S. 471,
     (A) a physical or mental impairment
                                               489, 119 S.Ct. 2139, 144 L.Ed.2d 450
     that substantially limits one or more
                                               (1999).
     of the major life activities of such
     individual;                                  Evaluating the evidence before the dis-
     (B) a record of such an impairment;       trict court, this Court agrees with the
     or                                        court below that EEOC failed to put forth
                                               evidence sufficient to demonstrate that the
     (C) being regarded as having such an
                                               rejected applicants were ‘‘disabled’’ within
     impairment.
                                               the meaning of the ADA. Specifically,
42 U.S.C. § 12102(2)(1995). EEOC regu-
                                               EEOC failed to set forth evidence suffi-
lations further develop this definition, ex-
                                               cient to establish that Hunt perceived re-
plaining ‘‘physical or mental impairment’’
                                               jected applicants as substantially limited in
as:
                                               their ability to perform a major life activi-
   (1) Any physiological disorder, or condi-   ty.
   tion, cosmetic disfigurement, or anatomi-
   cal loss affecting one or more of the         B.   The Evidence Is Insufficient To
   following body systems: neurological,              Support the Inference that Hunt
   musculoskeletal, special sense organs,             Regarded Applicants as Having a
   respiratory (including speech organs),             ‘‘Substantial Limitation’’ on a ‘‘Ma-
   cardiovascular, reproductive, digestive,           jor Life Activity.’’
   genito-urinary, hemic and lymphatic,
                                                  To qualify for ADA protections, a per-
   skin, and endocrine; or
                                               son’s ‘‘impairment’’ must ‘‘substantially
   (2) Any mental or psychological disor-
                                               limit’’ a ‘‘major life activit[y].’’ 42 U.S.C.
   der, such as mental retardation, organic
                                               § 12102(2). Major life activities may in-
   brain syndrome, emotional or mental ill-
                                               clude ‘‘caring for oneself, performing man-
   ness, and specific learning disabilities.
                                               ual tasks, walking, seeing, hearing, speak-
29 C.F.R. § 1630.2(h) (2001).                  ing, breathing, learning,’’ and, pertinent to
  Although EEOC initially challenged           this appeal, ‘‘working.’’           29 C.F.R.
Hunt’s reliance on the DRL under all           § 1630.2(i). An activity is ‘‘substantially
three prongs of the statutory definition of    limited’’ when an individual cannot per-
E.E.O.C. v. J.B. HUNT TRANSPORT, INC.                                  75
                                 Cite as 321 F.3d 69 (2nd Cir. 2003)

form the activity that an average person in         of a Hunt OTR driver does not mean that
the general population could perform or             one could not successfully engage in other
faces significant restrictions in the ‘‘condi-      types of truck driving, let alone in other
tion, manner, or duration under which the           kinds of safety-sensitive work.
individual can TTT perform [the] activity.’’
                                                       In Sutton, the Supreme Court consid-
29 C.F.R. § 1630.2(j)(i)-(ii). The activity
                                                    ered the claims of pilots who had been
of ‘‘working’’ is further defined by the
                                                    denied positions as ‘‘global pilots’’ with
regulations as follows:
                                                    United Airlines. The Supreme Court held
   With respect to the major life activity of
                                                    that the position of ‘‘global pilot’’ was ‘‘a
   working—
                                                    single job’’ and, therefore, was not suffi-
   (i) The term substantially limits means
                                                    ciently broad to satisfy the ‘‘major life
   significantly restricted in the ability to
                                                    activity requirement’’. Sutton, 527 U.S. at
   perform either a class of jobs or a broad
                                                    493, 119 S.Ct. 2139. The Court reasoned
   range of jobs in various classes as com-
                                                    that ‘‘there are a number of other positions
   pared to the average person having com-
                                                    utilizing petitioners’ skills, such as regional
   parable training, skills and abilities.
                                                    pilot and pilot instructor to name a few.’’
   The inability to perform a single, partic-
                                                    Id.
   ular job does not constitute a substantial
   limitation in the major life activity of            Like the limitation that United Airlines
   working.                                         placed on global airline pilots in Sutton,
29 C.F.R. § 1630.2(j)(3)(i). Thus, unless           the limitation that Hunt placed on appli-
Hunt perceived the applicants in question           cants for the position of OTR driver was a
as limited from a class of jobs or a broad          limitation on a particular job within a larg-
range of jobs, the EEOC’s claim must fail.          er group of jobs, and not a substantial
  1.   Driving 40–Ton, 18–Wheel Trucks              limitation on working. See Baulos v.
       Over Long Distances for Extended             Roadway Express, Inc., 139 F.3d 1147,-
       Periods is Neither a ‘‘Class of Job’’        1154 (7th Cir.1998) (driving sleeper trucks
       nor a ‘‘Broad Range of Jobs’’ Within         is a specific job within the broader class of
       the Meaning of the ADA.                      truck driving jobs). Therefore, the appli-
                                                    cants’ perceived unsuitability for the posi-
   [3] Driving freight-carrying tractor-
                                                    tion of OTR driver cannot be characterized
trailer trucks over long distances for ex-
                                                    as a perceived inability to perform a broad
tended periods of time is neither a ‘‘class
                                                    range or a class of jobs. This is true even
of jobs’’ nor a ‘‘broad range of jobs,’’ as the
                                                    assuming that truck-driving in general is a
EEOC alleges, but rather a specific job
                                                    sufficiently broad range or class of jobs to
with specific requirements. Such a posi-
                                                    constitute a ‘‘major life activity’’, an issue
tion requires specific abilities, especially
                                                    we do not need to reach. As the dissent
the ability to stay alert over long hours
                                                    readily acknowledges, persons licensed to
under difficult conditions. A Hunt OTR
                                                    drive the types of vehicles driven by Hunt
driver’s alertness cannot flag. He or she
                                                    OTR drivers are also qualified to drive
must be able to stay alert and withstand
                                                    ‘‘various types of small and large trucks,
the mesmerizing affect of driving an eigh-
                                                    including tractor-trailers, moving trucks,
teen-wheel vehicle for hours at a stretch,
                                                    and cargo vans.’’ Dissent page 80.
sometimes at night, with continuous vibra-
tion over long distances. Given these de-             Accordingly, to show that Hunt per-
manding requirements, the fact that one             ceived applicants rejected under the DRL
may not be able to perform the specific job         as substantially limited in a major life ac-
76                      321 FEDERAL REPORTER, 3d SERIES


tivity, the EEOC must show that Hunt             did not have another, less demanding driv-
viewed such applicants as limited from a         ing position to offer the candidates does
broader range or class of jobs than merely       not indicate that Hunt perceived the candi-
OTR positions at Hunt.                           dates as being unqualified for any driving
                                                 position at all. Giordano v. City of New
  2.   The Evidence Is Not Sufficient To         York, 274 F.3d 740, 748–50 (2d Cir.2001)
       Support a Reasonable Inference that       (finding inability of the New York Police
       Hunt Regarded Applicants Rejected         Department to offer light duty, non-patrol
       Under the ‘‘Not Permitted’’ and           position to officer taking anti-coagulation
       ‘‘Unsafe Effects’’ Categories as Sub-     medication did not demonstrate that offi-
       stantially Limited in a Broad Range       cer was substantially limited in working
       or Class of Jobs.                         where other security and law enforcement
   [4] The EEOC argues that Hunt re-             jobs in the area had such positions); see
garded applicants who took particular            also Baulos v. Roadway Express Inc., 139
medications as incapable of driving trucks,      F.3d 1147, 1154 (2d Cir.1998) (concluding
which according to the EEOC constitutes          that truck drivers unable to operate sleep-
either a ‘‘class of jobs’’ or a ‘‘broad range    er trucks did not show that they were
of jobs.’’ The record, however, only shows       regarded as disabled where employer did
that Hunt saw the applicants as unfit to         not offer them less demanding, non-over-
perform a job for which they were seeking        night positions that were taken by drivers
applicants: long-distance, freight-carrying,     with more seniority).
tractor-trailer driving.      The Supreme           [5] EEOC references a few comments
Court has clearly stated that ‘‘[t]he inabili-   from Hunt’s evaluators to candidates sug-
ty to perform a single, particular job,’’        gesting that certain candidates were not
however, ‘‘does not constitute a substantial     suited to any form of professional driving.
limitation in the major life activity of work-   These comments, made by people other
ing.’’ Sutton v. United Air Lines, Inc.,         than the ultimate hiring authorities, simply
527 U.S. 471, 493, 119 S.Ct. 2139, 144           are not sufficient to indicate that Hunt
L.Ed.2d 450 (1999). Here, Hunt dismissed         thought the applicants were more broadly
the applicants as unable to meet Hunt’s          limited given the heightened nature of
own safety requirements—requirements             Hunt’s standards and the fact that Hunt
above and beyond the DOT’s industry-wide         did hire some applicants on DRL medi-
standards and unique from the require-           cations. Although a few evaluators’ com-
ments of other trucking companies. See           ments could be more broadly interpreted,
Compl. ¶ 8c; Def.’s Statement of Material        there is no evidence that Hunt’s reviewers,
Facts at 7; see also Adair Dep. at 85–86;        relying on Hunt’s own DRL and drug lists
J.B. Hunt Transp., Inc., 128 F.Supp.2d at        to make a judgment on qualification for a
129 n. 17 (noting drivers were employed by       position at Hunt, intended to make an
other trucking companies while taking            evaluation beyond Hunt’s specific guide-
same medications).                               lines. Nor is there sufficient evidence to
   The evidence suggests that Hunt found         support a finding that Hunt viewed the
the applicants unsuited for long-distance        driving limitation as extending beyond
driving of Hunt’s 40–ton trucks on irregu-       Hunt. Furthermore, as the Supreme Court
lar, stressful schedules, but does not indi-     has clearly stated, ‘‘[i]t is not enough to
cate that Hunt perceived the applicants as       say that if the physical criteria of a single
more broadly limited. The fact that Hunt         employer were imputed to all similar em-
E.E.O.C. v. J.B. HUNT TRANSPORT, INC.                                      77
                                       Cite as 321 F.3d 69 (2nd Cir. 2003)

ployers one would be regarded as substan-                 an employer’s decision not to hire certain
tially limited in the major life activity of              candidates.
working only as a result of this imputa-
tion.’’ Sutton, 527 U.S. at 493, 119 S.Ct.                   3.   The Evidence Is Also Not Sufficient
2139.                                                             To Support a Reasonable Inference
   [6] In short, EEOC demonstrated only                           that Hunt Regarded Applicants Re-
that Hunt refused to hire certain appli-                          jected Under the ‘‘Disqualifying
cants according to its own hiring criteria;                       Condition’’ and ‘‘Heart Condition’’
however, a finding of perceived disability                        Categories as Substantially Limited
may not rest merely on a single employer’s                        in a Broad Range or Class of Jobs.
failure to hire a candidate. Baulos, 139                     As noted above, two of the categories in
F.3d at 1154 (‘‘Courts have uniformly held                the DRL appear, at least superficially, to
that an employer does not necessarily re-
                                                          refer to the condition causing the reliance
gard an employee as handicapped simply
                                                          on a DRL drug, not merely the applicants’
by finding the employee to be incapable of
                                                          use of a DRL medication.4 Although the
satisfying the singular demands of a par-
                                                          evidence suggests that these applicants
ticular job.’’ (internal citation omitted)).
                                                          were, like those in the other categories,
   [7] Thus, we affirm the district court’s               often told that they were disqualified on
grant of summary judgment in favor of                     the basis of the drug they were using
Hunt as to the applicants rejected under at               rather than on the basis of the condition
least the ‘‘Not Permitted’’ and ‘‘Unsafe                  supporting their use of the drug, we brief-
Effects’’ categories because EEOC has                     ly consider whether applicants using drugs
failed to demonstrate that Hunt mistaken-                 from these two categories warrant a differ-
ly perceived that the rejected applicants’                ent legal conclusion. We conclude that
had impairments that substantially limited                they do not.
a ‘‘major life activity.’’     Accordingly,
EEOC has failed to show that the appli-                     [8] Individuals suffering from the con-
cants were ‘‘disabled’’ within the meaning                ditions treated with the ‘‘Heart Condition’’
of the ADA. In so holding, we emphasize                   or ‘‘Disqualifying Condition’’ drugs are po-
that this Court will not presume a mistak-                tentially explicitly barred from truck driv-
en assumption of disability based only on                 ing by 49 C.F.R. § 391.41.5 Hunt therefore

4.     As noted in the discussion of the pertinent          tery occlusion, and severe headache, while
     facts, the DRL contained five categories of            the label ‘‘Heart Condition’’ attached to medi-
     drugs: ‘‘Rule out Side Effects,’’ ‘‘Not Permit-        cines treating heart failure, thrombosis, ede-
     ted,’’ ‘‘Unsafe Effects,’’ ‘‘Heart Condition,’’        ma, congestive heart failure, ischemia, and
     and ‘‘Disqualifying Condition.’’ The EEOC              ventric arrythmia. 49 C.F.R. § 391.41 ap-
     does not represent in this appeal any appli-           pears to exclude persons with all of these
     cants rejected under the ‘‘Rule Out Side Ef-           conditions from driving a commercial vehicle
     fects’’ category, thus removing that category          where those conditions are likely to interfere
     from our consideration. J.B. Hunt Transp.,             with their ability to safely drive a commercial
     Inc., 128 F.Supp.2d at 122, n. 7.                      vehicle. 49 C.F.R. §§ 391.41(b)(3) (diabetes),
                                                            391.41(b)(4) (‘‘myocardial infarction, angina
5.     Review of the DRL reveals that the label             pectoris, coronary insufficiency, thrombosis,
     ‘‘Disqualifying Condition’’ attached to drugs          or any other cardiovascular disease of a vari-
     treating Parkinson’s Disease, serious arryth-          ety known to be accompanied by syncope,
     mia, alcoholism, epilepsy, seizure, migraines,         dyspnea, collapse or congestive heart fail-
     dementia, depression, schizophrenia, diabe-            ure’’), 391.41(b)(6) (high blood pressure),
     tes, severe arthritis, severe hypertension, opi-       391.41(b)(7) (‘‘rheumatic, arthritic, orthope-
     ate addiction, subarachnoid hemorrhage, ar-            dic, muscular, neuromuscular, or vascular
78                         321 FEDERAL REPORTER, 3d SERIES


potentially regarded applicants using these                                      V.
drugs as substantially limited not just
                                                         Although Hunt admittedly rejected the
from driving Hunt vehicles according to
                                                      applicants for its OTR driving positions
the rules of the DRL and other company
                                                      because of their use of certain prescription
regulations, but as prevented from driving
                                                      medications, the EEOC cannot succeed in
legally for any commercial trucking com-
                                                      its ADA claim on behalf the rejected appli-
pany. As with the other categories in the
                                                      cants. The record only shows that Hunt
DRL, however, the restrictions on the
                                                      regarded the applicants in question as ine-
medications labeled ‘‘Disqualifying Condi-
                                                      ligible for a specific position within Hunt,
tion’’ or ‘‘Heart Condition’’ were placed on
                                                      not that Hunt regarded them as ‘‘disabled’’
applicants taking the drug, not on appli-
                                                      within the meaning of the ADA. The appli-
cants with the underlying condition itself.
                                                      cants, through the EEOC, therefore do not
Even though in some cases, the company,
                                                      have a valid ADA claim.
under 49 C.F.R. § 391.41, could have cre-
ated a policy excluding the applicant on                 For the reasons set forth above, this
the basis of the underlying condition, the            Court affirms the district court’s grant of
basis for the exclusion from employment               summary judgment to defendant Hunt and
was the use of a listed drug, not any                 its denial of the cross-motion by plaintiff
potential ‘‘disability’’ created by the treat-        EEOC.
ed disease.6                                            The judgment of the district court is
                                                      AFFIRMED.
   We conclude, therefore, that any claims
arising under the ‘‘Heart Condition’’ and
‘‘Disqualifying Condition’’ categories are              SOTOMAYOR, Circuit Judge,
                                                      dissenting.
not distinguishable from the claims under
the ‘‘Not Permitted’’ and ‘‘Unsafe Effects’’            This case is quite straightforward.
categories and so they must also fail.                Based upon a list of drugs and their poten-

  disease’’), 391.41(b)(8) (epilepsy or ‘‘any other        current   regulations.      See    49     C.F.R.
  condition which is likely to cause loss of con-          § 391.41(b)(4).
  sciousness’’), 391.41(b)(9) (‘‘mental, nervous,
  organic, or functional disease or psychiatric       6.     For example, Amandtadine Hydrochloride,
  disorder’’), 391.41(b)(12)(i) (controlled sub-           a drug to which the ‘‘Disqualifying Condi-
  stances), 391.41(b)(13) (alcoholism). ‘‘Mi-              tion’’ label attaches treats both Parkinson’s
  granes’’ or ‘‘severe headaches,’’ as ‘‘vascular          Disease and the flu. While an applicant tak-
  headache[s],’’ DORLAND’S ILLUSTRATED                     ing the drug for Parkinson’s might be dis-
  MEDICAL        DICTIONARY         1042      (28th        abled on the basis of the disease within the
  ed.1994),       potentially      fall      within        meaning of the ADA, an applicant using the
  § 391.41(b)(7)’s restriction on vascular dis-            drug for the flu would not likely so qualify.
  ease.
                                                           Hunt, however, would have excluded either
     EEOC alleged that Hunt misinterpreted a               applicant because of the drug usage. Fur-
  DOT report cautioning about the effects of
                                                           thermore, some ‘‘Disqualifying Condition’’
  drugs used to treat heart conditions, claiming
                                                           drugs treat the same underlying diseases as
  that the report merely required individual as-
                                                           drugs given other labels. For example Zoloft,
  sessment of each patient. The DOT subse-
                                                           a drug used for treatment of, inter alia, de-
  quently issued a report clarifying that the use
                                                           pression, is listed as ‘‘Unsafe Effects,’’ while
  of Coumadin, a anticoagulator previously
  questioned, was not automatically disqualify-            Prozac, also for depression, is listed as ‘‘Dis-
  ing. J.B. Hunt Transp., Inc., 128 F.Supp.2d              qualifying Condition.’’ This further supports
  at 120 n. 3 (describing reports). According to           the idea that the drug, not the condition itself,
  the DRL, however, Coumadin treats thrombo-               was the true basis of Hunt’s hiring ban.
  sis, a condition specifically prohibited by the
E.E.O.C. v. J.B. HUNT TRANSPORT, INC.                                  79
                                  Cite as 321 F.3d 69 (2nd Cir. 2003)

tial side effects compiled by David White-           truck driving in general is such a specific
side, a Hunt employee with no medical                class of jobs that a substantial limitation
training, and a Medical Guidelines policy            on truck driving would fail to imply a
developed by Michael Gray, a former Red              disability; its holding relies solely upon an
Lobster cashier with no medical training             inappropriately narrow view that Hunt
who was, nevertheless, Hunt’s Medical Ad-            perceived the applicants as limited only in
visor, Hunt determined that certain appli-           their ability to work as long haul truckers
cants were unfit to be truck drivers. The            for Hunt.
EEOC has provided substantial evidence
that Hunt believed that these individuals               Contrary to the majority’s assertion, the
were unfit to drive a truck, or, for that            EEOC has produced significant evidence
matter, to drive at all and were incapable           that Hunt regarded the applicants as sub-
of performing the broad class of jobs that           stantially limited in the major life activity
fall under the classification ‘‘truck driving.’’     of working as truck drivers in general. An
Based upon this showing, I would vacate              employer perceives an employee to be sub-
the district court’s grant of summary judg-          stantially limited in his or her ability to
ment and hold that there is a genuine                work if it believes the employee is:
dispute of material fact with respect to                significantly restricted in the ability to
whether the EEOC has established a pri-                 perform either a class of jobs or a broad
ma facie case of disability discrimination.             range of jobs in various classes as com-
I therefore respectfully dissent.                       pared to the average person having com-
    I agree with the majority that the issue            parable training, skills and abilities.
in this appeal is whether the applicants                The inability to perform a single, partic-
were denied truck driving positions at                  ular job does not constitute a substantial
Hunt because of their perceived disability              limitation in the major life activity of
within the meaning of the ADA. Ignoring                 working.
significant evidence that Hunt perceived             29 C.F.R. § 1630.2(j)(3)(i); see also Bart-
the applicants as more broadly limited,
                                                     lett v. N.Y. State Bd. of Law Exam’rs, 226
however, the majority holds that the
                                                     F.3d 69, 82–83 (2d Cir.2000). Factors that
EEOC has only provided evidence that
                                                     may be considered under this standard
Hunt perceived the rejected applicants as
                                                     include the geographical area to which an
‘‘ineligible for a specific position within
                                                     individual has reasonable access; the num-
Hunt.’’ Ante at 78. In doing so, the major-
                                                     ber and types of jobs utilizing similar
ity reasons that long haul trucking is not a
                                                     training, knowledge, skills or abilities as
sufficiently broad class of jobs such that a
                                                     the job from which the applicant has been
substantial limitation on an individual’s
                                                     disqualified; and the number and types of
ability to be a long haul trucker would
                                                     jobs not utilizing similar training, knowl-
imply that the individual was disabled
                                                     edge, skills or abilities from which the
within the meaning of the ADA. See ante
                                                     applicant will also be disqualified. 29
at 75–76. The majority asserts that a
                                                     C.F.R. § 1630.2(j)(3)(ii).
limitation on an individual’s ability to be a
long haul truck driver does not substan-                If other jobs utilizing an individual’s
tially limit his or her ability to engage in         skills are available, that person is not sub-
the major life activity of working, as many          stantially limited in a class of jobs, even if
other truck driving jobs are available for           this alternate employment would not allow
these individuals. See ante at 75–76. The            the individual to showcase his or her spe-
majority does not, however, hold that                cial talents. Sutton v. United Air Lines,
80                           321 FEDERAL REPORTER, 3d SERIES


Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144            Labor Statistics, Occupational Outlook
L.Ed.2d 450 (1999). In Sutton, the Su-                  Handbook 577 (2002–03), available at
preme Court determined that plaintiffs ap-              http://www.bls.gov/oco/pdf/ocos246.pdf.
plying for positions as global airline pilots           This evidence demonstrates that truck
could use their particular skills to obtain             driving is a general field of employment
other piloting positions from which they                rather than a specific position. Accord
were not disqualified, so these plaintiffs              Baulos v. Roadway Express, Inc., 139
were not regarded as being shut out from                F.3d 1147, 1154 (7th Cir.1998) (holding
an entire occupational class. Id. at 492–93,            that driving a sleeper car is a specific job
119 S.Ct. 2139. In applying this rubric,                within the class of truck drivers); Best v.
the Second Circuit has found that practic-              Shell Oil Co., 107 F.3d 544, 548 (7th Cir.
ing law is a broad occupational class, see              1997) (holding that truck driving is a class
Bartlett, 226 F.3d at 84, but that working
                                                        of jobs).
as a policeman is a specific position within
the class of investigative or security jobs,               The majority does not reach the ques-
see Giordano v. City of New York, 274                   tion whether truck driving is a class of
F.3d 740, 749 (2d Cir.2001).                            jobs. Instead, the majority argues that
   The EEOC has proffered evidence that                 Hunt only dismissed the applicants be-
the members of the plaintiff class have                 cause ‘‘Hunt found the applicants unsuited
undergone specialized driver training,                  for long-distance driving of Hunt’s 40–ton
earned commercial drivers’ licenses,                    trucks on irregular, stressful schedules.’’
passed road tests and received medical                  Ante at 76. Such hyperbole is inapposite.
certifications pursuant to DOT regulations.             Whether long haul trucking is, in fact,
The set of jobs that call for these qualifica-          different from other types of truck driving
tions includes driving various types of                 is not the central issue in this appeal;
small and large trucks, including tractor-              Hunt’s perception of the applicants as sub-
trailers, moving trucks, and cargo vans.                stantially limited in their ability to drive
See Office of Management & Budget, Stan-                trucks, without further limitation to long
dard Occupational Classification Manual                 haul truck driving, is the central issue.
220     (2000),    available     at    http://
www.bls.gov/soc/soc v3d0.htm. The De-                     Beyond this basic misconception, the
partment of Labor classifies truck driving              majority also misrepresents the record by
as a separate occupation within the overall             asserting that the evidence ‘‘does not indi-
category of ‘‘Transportation and Material               cate that Hunt perceived the applicants as
Moving Occupations,’’ as does the Office of             more broadly limited.’’ Ante at 77. To the
Management and Budget. Id. The De-                      contrary, the EEOC provided significant
partment of Labor estimated that in 2000                evidence that Hunt believed that the appli-
there were more than 3.3 million jobs that              cants were unfit to drive trucks. Numer-
came under the heading of ‘‘Truckdriver                 ous drugs were listed on the DRL as ‘‘Not
and Driver/Sales Workers.’’ 1 Bureau of                 Permitted,’’ 2 reflecting a belief that the

1.     Driver/Sales Workers drive trucks and work        from the two condition-based categories,
     as sales agents for the goods they haul; both       ‘‘Disqualifying Condition’’ and ‘‘Heart Condi-
     of these aspects are integral to their jobs. See    tion.’’ Ultimately, the majority finds no legal
     Occupational Outlook Handbook 576–77                distinction between the ‘‘condition’’ catego-
     (2002–03).                                          ries and the others. See ante at 78.
2.    The majority discusses the categories ‘‘Not
     Permitted’’ and ‘‘Unsafe Effects’’ separately
E.E.O.C. v. J.B. HUNT TRANSPORT, INC.                                         81
                                    Cite as 321 F.3d 69 (2nd Cir. 2003)

applicant was prohibited by DOT regula-                employee that he would ‘‘never drive for
tions from driving a commercial vehicle                anybody,’’ and numerous other applicants
while taking that particular medication.               were told that the medications they were
Dr. Cooper, Hunt’s physician consultant,               taking made it unsafe for them to drive a
testified with respect to one applicant that           truck, or drive in general. See, e.g., Curtin
he did not feel it was ‘‘in this patient’s best        Decl., Exh. 13 (reviewer told applicant
interest to pursue this profession.’’ Inter-           ‘‘that she could not be on [the medication]
view records show that the company be-                 and drive [because] it can cause unsafe
lieved another applicant ‘‘would most likely           affect [sic]’’); id. (reviewer told applicant
have difficulty functioning in the lifestyle           ‘‘that he could not drive[ ] while on this
of a trucker.’’ Similarly, Dr. Cooper indi-            medication’’); id. (reviewer told applicant
cated with regard to another applicant that            ‘‘that she cannot be on [the medication]
her ‘‘problems with sleep and concentra-               and drive’’); Curtin Decl., Exh. 20 (drug is
tion under stress are not very compatible              ‘‘not permitted for driving’’); id. (‘‘[b]oth
with the lifestyle expected of a driver.’’             drugs are not approved for driving’’); id.
Applicant Joseph Lisa was told by a Hunt               (reviewer ‘‘informed applicant that he can-

     I agree that all four categories of medi-           Condition’’ category). In addition, Hunt’s
  cations on the DRL at issue here should be             Medical Guidelines relating to mental and
  treated identically. I disagree, however,              psychological conditions required that in or-
  with the majority’s statement that ‘‘the basis         der to qualify for a job, an applicant taking
  for the exclusion from employment was the              medication for depression must remain off
  use of a listed drug, not any potential ‘dis-          the medication for thirty days and submit a
  ability’ created by the treated disease.’’ Ante        letter from a doctor stating that he or she no
  at 77–78. The EEOC has produced signifi-               longer suffers from the underlying condition.
  cant evidence that demonstrates the link be-           Contrary to the majority’s assertion, this evi-
  tween the drug categories and potential un-            dence provides a direct causal link between
  derlying conditions. For example, one of               the applicants’ underlying conditions and
  Hunt’s interviewers noted that the ‘‘applicant         Hunt’s perception of the applicants as sub-
  did not indicate the reason he is taking [the          stantially limited in their ability to work as
  medication]. [N]eed to verify why he is on             truck drivers.
  this medication.’’ Similar comments were                  To make a further distinction that it ulti-
  made by reviewers with respect to applicants           mately finds insignificant, the majority asserts
  taking medications in each of Hunt’s catego-           that ‘‘[i]ndividuals suffering from the condi-
  ries. See, e.g., Curtin Decl., Exh. 18 (appli-         tions treated with the ‘Heart Condition’ or
  cant needs to provide ‘‘headach [sic] release          ‘Disqualifying Condition’ drugs are potentially
  TTT [and a] statement that she is not taking           explicitly barred from truck driving by 49
  [the medication] for depression’’) (‘‘Not Per-         C.F.R. § 391.41.’’ Ante at 76–77 & n. 5 Many
  mitted’’ category); id. (‘‘Sent to Brenda for          of the conditions listed in this regulation only
  review on cardiovasular [sic] condition’’)             disqualify an individual if the condition is
  (‘‘Not Permitted’’ category); Curtin Decl.,            ‘‘likely to interfere with his/her ability to con-
  Exh. 20 (‘‘the diagnosis and severity of her           trol and drive a commercial motor vehicle
  condition for which she takes the medication           safely,’’ 49 C.F.R. § 391.41(b)(5), or otherwise
  is considered disqualifying’’) (‘‘Unsafe Ef-           suggest that an individualized determination
  fects’’ category); id. (applicant ‘‘will need to       of potential safety concerns is required. See
  complete his treatments TTT and send in all            id. § 391.41(b)(6)-(12). In relying on these
  records when his condition is resolved’’)              regulations to support Hunt’s policy, the ma-
  (‘‘Unsafe Effects’’ category); Curtin Decl.,           jority ignores the crucial difference between
  Exhs. 23, 25 (applicant needs to ‘‘provide a           individualized determinations of driver safety
  statment [sic] that TTT his condition is fine          and Hunt’s explicit policy to create a per se
  w/out the meds’’) (‘‘Disqualifying Condition’’         bar from truck driving with respect to these
  or ‘‘Heart Condition’’ category); id. (Hunt            individuals. Hunt’s policy simply assumes,
  ‘‘need[ed] all records on [applicant’s] condi-         without justification, that these individuals
  tion’’) (‘‘Disqualifying Condition’’ or ‘‘Heart        are unfit to drive trucks.
82                       321 FEDERAL REPORTER, 3d SERIES


not take [the medication] and drive’’);           drive; a factfinder reasonably could im-
Curtin Decl., Exhs. 23, 25 (reviewer ‘‘in-        pute these statements to Hunt, even if
formed appl[icant] that he could not take         these employees were not the ultimate de-
the med[ication] on [the] truck’’); Curtin        cision makers. Hunt proffers no evidence
Decl., Adair Depo. (representative told ap-       that these unidentified ‘‘ultimate hiring au-
plicant ‘‘it’s illegal to drive a truck with      thorities’’ did not share the reviewers’ per-
that [medication]’’); Curtin Decl., Manning       ceptions or rely upon their statements
Depo. (representative told applicant ‘‘it         about the applicants’ limitations. Indeed,
was illegal for a driver to drive while on        Hunt does not argue otherwise; it simply
this medication’’). The EEOC has provid-          argues that its employees’ statements im-
ed sufficient evidence to create a factual        plicitly refer only to jobs at Hunt. A fact-
issue whether Hunt perceived the appli-           finder is certainly allowed to determine
cants as broadly limited in their ability to      whether the statement that an applicant
work as a truck driver.                           would ‘‘never drive for anybody’’ implicitly
   The majority explains this evidence by         refers only to jobs at Hunt; it is not,
stating:                                          however, this Court’s job to do so. In
   Although a few evaluators’ comments            reviewing whether summary judgment is
   could be more broadly interpreted, there       appropriate, this Court does not make fac-
   is no evidence that Hunt’s reviewers,          tual determinations or refuse to credit le-
   relying on Hunt’s own DRL and drug             gitimate inferences based upon the evi-
   lists to make a judgment on qualification      dence presented, but views the evidence in
   for a position at Hunt, intended to make       the light most favorable to the nonmoving
   an evaluation beyond Hunt’s specific           party. See Giordano, 274 F.3d at 746.
   guidelines.                                       Hunt also argues that the statements of
Ante at 76–77. In reviewing a grant of            Dr. Cooper should not be imputed to it.
summary judgment, however, we do not              The EEOC provides significant evidence
refuse to credit a broad, but reasonable,         that Hunt relied on Dr. Cooper’s advice,
interpretation of the evidence. Giordano,         including, for example, a reviewer’s state-
274 F.3d at 749–50. Even if this were the         ment that the applicant was ‘‘disqualified
standard, Hunt’s reviewers stated that one        per Dr. Cooper.’’ This suffices to provide
applicant would ‘‘never drive for anybody,’’      a direct link between Dr. Cooper’s opin-
and made similar statements about many            ions regarding applicants and Hunt’s view
other applicants; it is difficult to imagine a    of the applicants as disabled.
clearer statement that the reviewers in-             Finally, the majority’s argument that
tended to say that the applicants were, in        Hunt’s policy should not be imputed to
fact, substantially limited in their ability to   other companies in determining whether
work as a truck driver for any company.           the applicants were perceived as disabled
   The majority asserts that because              is immaterial. Contrary to the majority’s
Hunt’s reviewers were not the ultimate            assertion, this is not a case in which the
decision makers, the comments ‘‘simply            potential imputation of Hunt’s policy to
are not sufficient to indicate that Hunt          other companies would result in the appli-
thought the applicants were more broadly          cants being regarded as ‘‘substantially lim-
limited.’’ Ante at 76–77. Again, this is a        ited in the major life activity of working
matter for the factfinder to decide.              only as a result of this imputation.’’ Sut-
Hunt’s own employees stated on several            ton, 527 U.S. at 493, 119 S.Ct. 2139. It is
occasions that applicants were unfit to           Hunt’s explicit statement that it believed
CICIO v. DOES                                          83
                                Cite as 321 F.3d 83 (2nd Cir. 2003)

applicants to be unfit to drive a truck that       suit against plan administrator for employ-
supports Hunt’s perception of these indi-          ee benefits plan, its medical director, and
viduals as substantially limited in their          others, alleging state law claims arising
ability to drive a truck; no potential impu-       out of decision to deny preauthorization for
tation is required. Thus, the EEOC has             medical procedure recommended by treat-
provided sufficient evidence that a factfin-       ing physician. Defendants removed action
der could reasonably conclude that Hunt            and moved to dismiss for failure to state
regarded the rejected applicants as sub-           claim. Widow moved to remand. The Unit-
stantially limited in the major life activity      ed States District Court for the Eastern
of working, because Hunt regarded them             District of New York, Joanna Seybert, J.,
as unfit to be truck drivers.                      208 F.Supp.2d 288, adopting the report
                                                   and recommendation of United States
              CONCLUSION                           Magistrate Judge E. Thomas Boyle, grant-
                                                   ed motion to dismiss on ground of preemp-
  Because I find ample support in the
                                                   tion under the Employee Retirement In-
record for the assertion that Hunt regard-
                                                   come Security Act (ERISA), and widow
ed the applicants as d substantially limited
                                                   appealed. The Court of Appeals, Sack, Cir-
in the major life activity of working, and
                                                   cuit Judge, held that: (1) negligent delay
thus, the applicants were disabled within
                                                   and misrepresentation claims were remov-
the meaning of the ADA, I respectfully
                                                   able under complete preemption doctrine;
dissent.
                                                   (2) court had supplemental jurisdiction
                                                   over medical malpractice claim; (3) negli-

             ,
                                                   gent delay and misrepresentation claims
                                                   were subject to dismissal as conflict
                                                   preempted; and (4) on issue of first im-
                                                   pression, state law medical malpractice
Bonnie CICIO, individually and as Ad-              claim brought with respect to a medical
  ministratrix of the Estate of Car-               decision made in the course of prospective
   mine Cicio, Plaintiff–Appellant,                utilization review by a managed care orga-
                                                   nization or health insurer is not preempted
                     v.                            under ERISA.
      John DOES 1–8, Defendants,                      Affirmed in part, vacated in part, and
                                                   remanded.
 Vytra Healthcare, and Brent Spears,
     M.D., Defendants–Appellees.                        Calabresi, Circuit Judge, filed an opin-
                                                   ion dissenting in part.
           Docket No. 01–9248.

     United States Court of Appeals,
             Second Circuit.                       1. Removal of Cases O107(9)
                                                      District court’s denial of a motion to
         Argued: June 20, 2002.
                                                   remand is reviewed de novo.
         Decided: Feb. 11, 2003.
                                                   2. Federal Courts O776
      As Amended: March 12, 2003.
                                                        District court’s decision to grant a
                                                   motion to dismiss for failure to state a
     Widow, on behalf of herself and her           claim is reviewed de novo. Fed.Rules Civ.
late husband’s estate, brought state court         Proc.Rule 12(b)(6), 28 U.S.C.A.

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2003 E.E.O.C. V. J.B. Hunt Transport Sotomayor

  • 1. E.E.O.C. v. J.B. HUNT TRANSPORT, INC. 69 Cite as 321 F.3d 69 (2nd Cir. 2003) cal in directing that any lack of clarity must be resolved in favor of the insured. EQUAL EMPLOYMENT OPPOR- See Ferraiolo Const. Co., 584 A.2d at 609 TUNITY COMMISSION, (‘‘Any ambiguity must be resolved in favor Plaintiff–Appellant, of a duty to defend.’’) (Maine law); Wil- kin Insulation Co., 161 Ill.Dec. 280, 578 v. N.E.2d at 930 (‘‘All doubts and ambiguities J.B. HUNT TRANSPORT, INC., must be resolved in favor of the insured.’’) Defendant–Appellee. (Illinois law); Lime Tree Vill. Cmty. Club Ass’n, 980 F.2d at 1405 (‘‘If the allegations Docket No. 01–6084. of the complaint leave any doubt as to the duty to defend, the question must be re- United States Court of Appeals, solved in favor of the insured.’’) (Florida Second Circuit. law). Regardless of which of the three Argued: Jan. 9, 2002. state’s laws applied, the potential for cov- erage existed at the time CI refused to Decided: Feb. 5, 2003. defend Auto Europe. The duty to defend was therefore ‘‘clear’’ and, accordingly, the district court properly awarded attorney’s Equal Employment Opportunity Com- fees. mission (EEOC) commenced action pursu- ant to the Americans with Disabilities Act VI. Conclusion (ADA), alleging that truckload motor carri- er violated the ADA by discriminating The district court properly concluded against over-the-road truck drivers who that this insurance coverage dispute used certain prescription medications. On should be heard in Maine and resolved parties’ cross-motions for summary judg- pursuant to Maine law. Because CI’s duty ment, the United States District Court for to defend was clear, the district court the Northern District of New York, Nor- properly awarded attorney’s fees to Auto man A. Mordue, J., 128 F.Supp.2d 117, Europe. granted summary judgment in favor of The judgment of the district court is carrier, and EEOC appealed. The Court of therefore affirmed. Appeals, F.I. Parker, Circuit Judge, held that applicants perceived as unsuitable for position of over-the-road truck drivers were not perceived as substantially limited in major life activity of working, as would , establish ‘‘disability’’ under the ADA. Affirmed. Sotomayor, Circuit Judge, dissented and filed opinion. leaves some ambiguity on whether allegations based on non-intentional conduct. See, e.g., of intentional conduct eliminate the duty to Applestein, 377 So.2d at 231 (holding that defend pursuant to an intentional acts policy allegations of malice and deliberate ‘‘ ‘attempt exclusion even when facts could be developed to discredit’ ’’ negated coverage). at trial to support judgment for the plaintiff
  • 2. 70 321 FEDERAL REPORTER, 3d SERIES 1. Federal Courts O776, 802 5. Civil Rights O173.1 The Court of Appeals reviews a dis- Comments made by people other than trict court’s grant of summary judgment ultimate hiring authorities suggesting that de novo, construing the evidence presented certain applicants for position of over-the- below in the light most favorable to the road truck drivers were not suited to any non-moving party. form of professional driving, based on their use of prescription medications with side 2. Federal Courts O759.1, 766 effects that could impair driving ability, While the Court of Appeals may af- were not sufficient to indicate that truck- firm a district court’s grant of summary load motor carrier thought applicants were judgment on any ground with adequate more broadly limited in major life activity support in the record, it may not affirm of working, so as to regard them as dis- summary judgment where any evidence in abled within meaning of ADA, where carri- the record would support a reasonable in- er had its own safety requirements above ference in favor of the opposing party. and beyond those of federal standards, and 3. Civil Rights O173.1 it did hire some applicants on medications at issue. Americans with Disabilities Act Applicants’ perceived unsuitability for of 1990, § 3(2), 42 U.S.C.A. § 12102(2); 29 position of over-the-road truck drivers, C.F.R. § 1630.2(j)(3)(i). based on their use of prescription medi- cations with side effects that could impair 6. Civil Rights O173.1 driving ability, was not a perceived inabili- A finding of perceived disability, for ty to perform broad range or class of jobs, purposes of a discrimination action under but rather was limitation on particular job the ADA, may not rest merely on a single within larger group of jobs, and thus appli- employer’s failure to hire a candidate. cants failed to establish that they were Americans with Disabilities Act of 1990, perceived as substantially limited in major § 2 et seq., 42 U.S.C.A. § 12101 et seq. life activity of working, as would establish ‘‘disability’’ under the ADA. Americans 7. Civil Rights O240(2) with Disabilities Act of 1990, § 3(2), 42 For purposes of a discrimination ac- U.S.C.A. § 12102(2); 29 C.F.R. tion under the ADA, courts will not pre- § 1630.2(j)(3)(i). sume a mistaken assumption of disability based only on an employer’s decision not 4. Civil Rights O173.1 to hire certain candidates. Americans Truckload motor carrier did not view with Disabilities Act of 1990, § 2 et seq., applicants who were perceived unsuitable 42 U.S.C.A. § 12101 et seq. for position of over-the-road truck drivers based on their use of prescription medi- 8. Civil Rights O173.1 cations with side effects that could impair Applicants for over-the-road truck driving ability as unable to drive any driver positions who suffered from condi- trucks, so as to regard them as disabled tions treated with prescription medications within meaning of ADA, but rather per- with side effects that could impair driving ceived applicants as unfit to perform spe- ability were not regarded as substantially cific job of long-distance, freight-carrying, limited in major life activity of working tractor-trailer driving. Americans with based on underlying condition itself, as Disabilities Act of 1990, § 3(2), 42 U.S.C.A. would establish ‘‘disability’’ under the § 12102(2); 29 C.F.R. § 1630.2(j)(3)(i). ADA; rather, employer perceived appli-
  • 3. E.E.O.C. v. J.B. HUNT TRANSPORT, INC. 71 Cite as 321 F.3d 69 (2nd Cir. 2003) cants as unfit for positions based on use of that the applicants in question had been medications with dangerous side effects. denied over-the-road driving positions with Americans with Disabilities Act of 1990, Hunt because of their use of medications § 3(2), 42 U.S.C.A. § 12102(2); 29 C.F.R. with potentially harmful side effects, and § 1630.2(j)(3)(i); 49 C.F.R. § 391.41. not as a result of an actual or perceived disability or a record of disability as con- templated by the Americans with Disabili- ties Act of 1990, 42 U.S.C. § 12101, et seq. (‘‘ADA’’). On appeal, the EEOC argues Julie L. Gantz, Equal Opportunity Em- exclusively that Hunt regarded the reject- ployment Commission (Nicholas M. Inzeo, ed applicants as disabled, i.e., substantially Acting Deputy General Counsel, Philip B. limited from a major life activity, as de- Sklover, Associate General Counsel, Vin- fined by 42 U.S.C. § 12102(2)(C) because cent J. Blackwood, Assistant General of their use of certain medications. Be- Counsel, on brief), for Plaintiff–Appellant. cause we find that Hunt did not regard the James H. Hanson, Scopelitis, Garvin, applicants as disabled as defined by the Light & Hanson, Indianapolis, IN (Laurie ADA, we affirm the decision of the district T. Baulig, Scopelitis, Garvin, Light & Han- court. son, Washington, DC, Thomas J. Grooms, Bond Schoeneck & King, Syracuse, NY, on II. brief), for Defendant–Appellee. J.B. Hunt Transportation, Inc. (‘‘Hunt’’) Before: JACOBS, F.I. PARKER, is the nation’s largest publicly held motor SOTOMAYOR, Circuit Judges. carrier company. Hunt operates for-hire property transport services in the forty- F.I. PARKER, Circuit Judge. eight contiguous states, the District of Co- J.B. Hunt Transport, Inc. chose not to lumbia, Canada, and Mexico. Its fleet in- employ over-the-road truck drivers who cludes 8,000 tractors, and it employs ap- used prescription medications with side ef- proximately 12,000 individuals to drive the fects that might impair driving ability. trucks. Of these employees, approximate- The Equal Employment Opportunity Com- ly 10,000 are the over-the-road (‘‘OTR’’) mission argued that under the Americans drivers whose positions are at issue in this with Disabilities Act, Hunt’s decision vio- case. These OTR drivers operate vehicles lated the rights of job applicants using weighing approximately 80,000 pounds those medications. We disagree. over irregular routes under particularly difficult work conditions, including sleep I. deprivation, irregular work and rest cycles, Plaintiff–Appellant Equal Employment inclement weather, long driving periods, Opportunity Commission (‘‘EEOC’’) ap- long layovers, irregular meal schedules, peals from the February 8, 2001 decision tight delivery schedules, en route delays, of the United States District Court for the night driving, accumulated fatigue, stress, Northern District of New York (Norman and extended periods of loud noise and A. Mordue, Judge ) granting defendant vibrations. According to Hunt, the large J.B. Hunt Transport Inc.’s (‘‘Hunt’’ ’s) mo- vehicle size and extreme driving conditions tion for summary judgment and denying faced by its OTR drivers warrant height- plaintiff EEOC’s cross-motion for sum- ened safety evaluations of those OTR driv- mary judgment. The district court found ers.
  • 4. 72 321 FEDERAL REPORTER, 3d SERIES Like other motor carriers, Hunt is sub- (‘‘Whiteside’’), based entirely on notations ject to federal regulation under the De- in the 1993 edition of the Physician’s Desk partment of Transportation’s Federal Mo- Reference (‘‘PDR’’). Whiteside divided tor Carrier Safety Act Regulations the DRL into six columns labeled ‘‘name,’’ (‘‘FMCSAR’’). 49 C.F.R. § 301, et seq. ‘‘class,’’ ‘‘comment,’’ ‘‘restriction,’’ ‘‘treats,’’ (2001). These regulations establish mini- and ‘‘1993 PDR page number.’’ In the mum qualifications for any person driving ‘‘restriction’’ column, Whiteside indicated a commercial motor vehicle, as well as the impact a particular drug might have minimum duties for motor carriers using on an applicant’s eligibility. Whiteside OTR drivers. The regulations specifically designated five categories of restrictions: allow an operator to require and enforce ‘‘Rule Out Side [E]ffects,’’ ‘‘Not Permit- ‘‘more stringent requirements relating to ted,’’ ‘‘Unsafe [E]ffects,’’ ‘‘Heart Condi- safety of operation and employee safety tion,’’ and ‘‘Disqualifying Condition.’’ 1 An and health’’, 49 C.F.R. § 390.3(d), and re- applicant whose medication had a ‘‘Rule quire operators to restrict drivers from Out Side Effects’’ notation was required to operating vehicles ‘‘while the driver’s abili- obtain a release from the prescribing doc- ty or alertness is so impaired, or so likely tor certifying that the applicant could to become impaired, through fatigue, ill- safely drive a tractor trailer truck while ness, or any other cause, as to make it using the medication. An applicant taking unsafe for him/her to begin or continue to a ‘‘Not Permitted,’’ ‘‘Unsafe Effects,’’ operate the commercial motor vehicle.’’ Id. ‘‘Disqualifying Condition,’’ or ‘‘Heart Con- at § 392.3 (2001). A motor carrier is re- dition’’ medication could not drive for quired to ensure that drivers do not oper- Hunt while using the indicated medi- ate unless they are in compliance with the cation.2 The notation ‘‘Unsafe Effects’’ in- DOT regulations. 49 C.F.R. §§ 391.11, dicated either that the PDR cautioned 392.3, 392.4(b)(2001). users against operating heavy equipment or driving automobiles while taking the A. The Drug Review List drug (noted as ‘‘warning on driving’’ in the Between September 1993 and May comment column) or that the drug caused 1994, in an effort to comply with the drowsiness, sedation, or a high incidence FMCSAR in its hiring processes, Hunt of dizziness. A ‘‘Rule Out Side Effects’’ created a Drug Review List (‘‘DRL’’) of notation indicated that a medication could medications known to have side effects cause side effects similar to, but less per- that might impair driving ability. The vasive than, those warranting an ‘‘Unsafe list, thirty-seven pages in length and in- Effects’’ label. Finally, ‘‘Heart Condition’’ cluding over 836 medications, was com- indicated that the medication was general- piled by Hunt’s Safety Department Di- ly used for heart problems that could dis- rector of Compliance, David Whiteside qualify drivers under DOT regulations. 1. The Court will use the corrected labels these medications in the ‘‘Not Permitted’’ cat- ‘‘Rule Out Side Effects’’ for ‘‘Rule Out Side egory. Equal Employment Opportunity Affects’’ and ‘‘Unsafe Effects’’ for ‘‘Unsafe Af- Comm’n v. J.B. Hunt Transp., Inc., 128 fects’’ throughout the opinion. F.Supp.2d 117, 120 n. 2 (N.D.N.Y.2001); see 49 C.F.R. § 391.42(b)(12)(i) (prohibiting use 2. The district court found that Whiteside mis- of Schedule I drugs, amphetamines, narcot- takenly believed that the DOT prohibited ics, and other habit-forming drugs); 49 drivers from using any Schedule II–V medi- cations, rather than only Schedule I medi- C.F.R. § 392.2 (same). cations, and that he therefore included all of
  • 5. E.E.O.C. v. J.B. HUNT TRANSPORT, INC. 73 Cite as 321 F.3d 69 (2nd Cir. 2003) B. The Hunt Hiring Process III. Upon receiving an application for a com- EEOC filed its complaint in the United mercial driving position, Hunt forwarded States District Court for the Northern the application to its Corporate Driver District of New York on October 24, 1997. Personnel Department in Lowell, Arkan- Both sides moved for summary judgment. sas for screening of motor vehicle, crimi- EEOC alleged that Hunt violated the ADA nal, and prior employment records and for by discriminating against individuals with a review of listed references. If an appli- disabilities or ‘‘perceived’’ disabilities. cant passed this first level of screening and Hunt alleged that the DRL was a safety- received a conditional employment offer, related qualification standard addressing the applicant underwent medical screen- serious business concerns. The district ing, including questioning regarding the court granted summary judgment for applicant’s use of prescription medication Hunt and denied EEOC’s summary judg- for the last five years. Hunt used non- ment motion based on (1) its conclusion medical personnel to conduct these screen- that ADA protections did not extend to the ings. If the applicant indicated use of a excluded driver-applicants because the ap- prescription drug, the reviewing employee plicants were not, by virtue of their use of consulted Hunt’s medical guidelines 3 and certain medications, disabled within the the DRL to determine the applicant’s med- meaning of the ADA, and (2) its finding ical eligibility. that the EEOC had failed to contradict Hunt’s assertion that its use of the DRL as a safety measure was reasonable within C. The EEOC Claim DOT guidelines. Equal Employment Op- EEOC claims that Hunt improperly re- portunity Comm’n. v. J.B. Hunt Transp., jected 546 applicants in violation of the Inc., 128 F.Supp.2d 117, 135–36 (N.D.N.Y. ADA on the basis of a ‘‘blanket’’ exclusion- 2001). On appeal, EEOC abandoned its ary policy. EEOC admits, however, that argument that the excluded applicants Hunt hired several applicants who were were ‘‘disabled’’ under the ADA, claiming using drugs prohibited under the DRL—in only that the district court erred by grant- 1995, two applicants using drugs labeled ing summary judgment to Hunt when the ‘‘Disqualifying Condition’’ and eleven using evidence supported the conclusion that drugs labeled ‘‘Unsafe Effects,’’ and in Hunt regarded the applicants as disabled 1996 and 1997, one applicant taking a ‘‘Dis- because of their use of medications on the qualifying Condition’’ drug and thirteen DRL. using drugs with ‘‘Unsafe Effects.’’ Prior to commencing work, each of these new IV. employees provided Hunt with medical [1, 2] We review a district court’s documentation from a treating physician grant of summary judgment de novo, con- or health care provider certifying that he struing the evidence presented below in or she did not suffer from the potentially the light most favorable to the non-moving problematic side effects and could operate party. Manning v. Utils. Mut. Ins. Co., a truck safely while taking the drug. 254 F.3d 387, 391 (2d Cir.2001). While 3. As the district court found, Hunt maintained for Hunt unless he or she had been off such a restrictive policy on the use of drugs for drugs for at least thirty days before commenc- psychological conditions separate from the ing work. Hunt Medical Guidelines, April 11, DRL. An applicant was not eligible to drive 1996.
  • 6. 74 321 FEDERAL REPORTER, 3d SERIES this Court may affirm on any ground with ‘‘disability,’’ on appeal, EEOC alleges only adequate support in the record, we may that the rejected OTR driver applicants not affirm summary judgment where any were ‘‘regarded as’’ disabled by Hunt evidence in the record would support a based on their use of certain medications, reasonable inference in favor of the oppos- invoking the statutory definition of disabil- ing party. See McCarthy v. Am. Int’l ity under § 12102(2)(C). As the Supreme Group, Inc., 283 F.3d 121, 124 (2d Cir. Court explained in Sutton v. United Air 2002); VKK Corp. v. Nat’l Football Lines, Inc., ‘‘[t]here are two apparent League, 244 F.3d 114, 119 (2d Cir.2001). ways in which individuals may fall within this [§ 12102(2)(C) ] statutory definition: A. The Statutory Framework and the (1) a covered entity mistakenly believes Definition of ‘‘Disability.’’ that a person has a physical impairment The ADA provides a deceptively simple that substantially limits one or more major definition of disability: life activities, or (2) a covered entity mis- The term ‘‘disability’’ means, with re- takenly believes that an actual, nonlimiting spect to an individual— impairment substantially limits one or more major life activities.’’ 527 U.S. 471, (A) a physical or mental impairment 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 that substantially limits one or more (1999). of the major life activities of such individual; Evaluating the evidence before the dis- (B) a record of such an impairment; trict court, this Court agrees with the or court below that EEOC failed to put forth evidence sufficient to demonstrate that the (C) being regarded as having such an rejected applicants were ‘‘disabled’’ within impairment. the meaning of the ADA. Specifically, 42 U.S.C. § 12102(2)(1995). EEOC regu- EEOC failed to set forth evidence suffi- lations further develop this definition, ex- cient to establish that Hunt perceived re- plaining ‘‘physical or mental impairment’’ jected applicants as substantially limited in as: their ability to perform a major life activi- (1) Any physiological disorder, or condi- ty. tion, cosmetic disfigurement, or anatomi- cal loss affecting one or more of the B. The Evidence Is Insufficient To following body systems: neurological, Support the Inference that Hunt musculoskeletal, special sense organs, Regarded Applicants as Having a respiratory (including speech organs), ‘‘Substantial Limitation’’ on a ‘‘Ma- cardiovascular, reproductive, digestive, jor Life Activity.’’ genito-urinary, hemic and lymphatic, To qualify for ADA protections, a per- skin, and endocrine; or son’s ‘‘impairment’’ must ‘‘substantially (2) Any mental or psychological disor- limit’’ a ‘‘major life activit[y].’’ 42 U.S.C. der, such as mental retardation, organic § 12102(2). Major life activities may in- brain syndrome, emotional or mental ill- clude ‘‘caring for oneself, performing man- ness, and specific learning disabilities. ual tasks, walking, seeing, hearing, speak- 29 C.F.R. § 1630.2(h) (2001). ing, breathing, learning,’’ and, pertinent to Although EEOC initially challenged this appeal, ‘‘working.’’ 29 C.F.R. Hunt’s reliance on the DRL under all § 1630.2(i). An activity is ‘‘substantially three prongs of the statutory definition of limited’’ when an individual cannot per-
  • 7. E.E.O.C. v. J.B. HUNT TRANSPORT, INC. 75 Cite as 321 F.3d 69 (2nd Cir. 2003) form the activity that an average person in of a Hunt OTR driver does not mean that the general population could perform or one could not successfully engage in other faces significant restrictions in the ‘‘condi- types of truck driving, let alone in other tion, manner, or duration under which the kinds of safety-sensitive work. individual can TTT perform [the] activity.’’ In Sutton, the Supreme Court consid- 29 C.F.R. § 1630.2(j)(i)-(ii). The activity ered the claims of pilots who had been of ‘‘working’’ is further defined by the denied positions as ‘‘global pilots’’ with regulations as follows: United Airlines. The Supreme Court held With respect to the major life activity of that the position of ‘‘global pilot’’ was ‘‘a working— single job’’ and, therefore, was not suffi- (i) The term substantially limits means ciently broad to satisfy the ‘‘major life significantly restricted in the ability to activity requirement’’. Sutton, 527 U.S. at perform either a class of jobs or a broad 493, 119 S.Ct. 2139. The Court reasoned range of jobs in various classes as com- that ‘‘there are a number of other positions pared to the average person having com- utilizing petitioners’ skills, such as regional parable training, skills and abilities. pilot and pilot instructor to name a few.’’ The inability to perform a single, partic- Id. ular job does not constitute a substantial limitation in the major life activity of Like the limitation that United Airlines working. placed on global airline pilots in Sutton, 29 C.F.R. § 1630.2(j)(3)(i). Thus, unless the limitation that Hunt placed on appli- Hunt perceived the applicants in question cants for the position of OTR driver was a as limited from a class of jobs or a broad limitation on a particular job within a larg- range of jobs, the EEOC’s claim must fail. er group of jobs, and not a substantial 1. Driving 40–Ton, 18–Wheel Trucks limitation on working. See Baulos v. Over Long Distances for Extended Roadway Express, Inc., 139 F.3d 1147,- Periods is Neither a ‘‘Class of Job’’ 1154 (7th Cir.1998) (driving sleeper trucks nor a ‘‘Broad Range of Jobs’’ Within is a specific job within the broader class of the Meaning of the ADA. truck driving jobs). Therefore, the appli- cants’ perceived unsuitability for the posi- [3] Driving freight-carrying tractor- tion of OTR driver cannot be characterized trailer trucks over long distances for ex- as a perceived inability to perform a broad tended periods of time is neither a ‘‘class range or a class of jobs. This is true even of jobs’’ nor a ‘‘broad range of jobs,’’ as the assuming that truck-driving in general is a EEOC alleges, but rather a specific job sufficiently broad range or class of jobs to with specific requirements. Such a posi- constitute a ‘‘major life activity’’, an issue tion requires specific abilities, especially we do not need to reach. As the dissent the ability to stay alert over long hours readily acknowledges, persons licensed to under difficult conditions. A Hunt OTR drive the types of vehicles driven by Hunt driver’s alertness cannot flag. He or she OTR drivers are also qualified to drive must be able to stay alert and withstand ‘‘various types of small and large trucks, the mesmerizing affect of driving an eigh- including tractor-trailers, moving trucks, teen-wheel vehicle for hours at a stretch, and cargo vans.’’ Dissent page 80. sometimes at night, with continuous vibra- tion over long distances. Given these de- Accordingly, to show that Hunt per- manding requirements, the fact that one ceived applicants rejected under the DRL may not be able to perform the specific job as substantially limited in a major life ac-
  • 8. 76 321 FEDERAL REPORTER, 3d SERIES tivity, the EEOC must show that Hunt did not have another, less demanding driv- viewed such applicants as limited from a ing position to offer the candidates does broader range or class of jobs than merely not indicate that Hunt perceived the candi- OTR positions at Hunt. dates as being unqualified for any driving position at all. Giordano v. City of New 2. The Evidence Is Not Sufficient To York, 274 F.3d 740, 748–50 (2d Cir.2001) Support a Reasonable Inference that (finding inability of the New York Police Hunt Regarded Applicants Rejected Department to offer light duty, non-patrol Under the ‘‘Not Permitted’’ and position to officer taking anti-coagulation ‘‘Unsafe Effects’’ Categories as Sub- medication did not demonstrate that offi- stantially Limited in a Broad Range cer was substantially limited in working or Class of Jobs. where other security and law enforcement [4] The EEOC argues that Hunt re- jobs in the area had such positions); see garded applicants who took particular also Baulos v. Roadway Express Inc., 139 medications as incapable of driving trucks, F.3d 1147, 1154 (2d Cir.1998) (concluding which according to the EEOC constitutes that truck drivers unable to operate sleep- either a ‘‘class of jobs’’ or a ‘‘broad range er trucks did not show that they were of jobs.’’ The record, however, only shows regarded as disabled where employer did that Hunt saw the applicants as unfit to not offer them less demanding, non-over- perform a job for which they were seeking night positions that were taken by drivers applicants: long-distance, freight-carrying, with more seniority). tractor-trailer driving. The Supreme [5] EEOC references a few comments Court has clearly stated that ‘‘[t]he inabili- from Hunt’s evaluators to candidates sug- ty to perform a single, particular job,’’ gesting that certain candidates were not however, ‘‘does not constitute a substantial suited to any form of professional driving. limitation in the major life activity of work- These comments, made by people other ing.’’ Sutton v. United Air Lines, Inc., than the ultimate hiring authorities, simply 527 U.S. 471, 493, 119 S.Ct. 2139, 144 are not sufficient to indicate that Hunt L.Ed.2d 450 (1999). Here, Hunt dismissed thought the applicants were more broadly the applicants as unable to meet Hunt’s limited given the heightened nature of own safety requirements—requirements Hunt’s standards and the fact that Hunt above and beyond the DOT’s industry-wide did hire some applicants on DRL medi- standards and unique from the require- cations. Although a few evaluators’ com- ments of other trucking companies. See ments could be more broadly interpreted, Compl. ¶ 8c; Def.’s Statement of Material there is no evidence that Hunt’s reviewers, Facts at 7; see also Adair Dep. at 85–86; relying on Hunt’s own DRL and drug lists J.B. Hunt Transp., Inc., 128 F.Supp.2d at to make a judgment on qualification for a 129 n. 17 (noting drivers were employed by position at Hunt, intended to make an other trucking companies while taking evaluation beyond Hunt’s specific guide- same medications). lines. Nor is there sufficient evidence to The evidence suggests that Hunt found support a finding that Hunt viewed the the applicants unsuited for long-distance driving limitation as extending beyond driving of Hunt’s 40–ton trucks on irregu- Hunt. Furthermore, as the Supreme Court lar, stressful schedules, but does not indi- has clearly stated, ‘‘[i]t is not enough to cate that Hunt perceived the applicants as say that if the physical criteria of a single more broadly limited. The fact that Hunt employer were imputed to all similar em-
  • 9. E.E.O.C. v. J.B. HUNT TRANSPORT, INC. 77 Cite as 321 F.3d 69 (2nd Cir. 2003) ployers one would be regarded as substan- an employer’s decision not to hire certain tially limited in the major life activity of candidates. working only as a result of this imputa- tion.’’ Sutton, 527 U.S. at 493, 119 S.Ct. 3. The Evidence Is Also Not Sufficient 2139. To Support a Reasonable Inference [6] In short, EEOC demonstrated only that Hunt Regarded Applicants Re- that Hunt refused to hire certain appli- jected Under the ‘‘Disqualifying cants according to its own hiring criteria; Condition’’ and ‘‘Heart Condition’’ however, a finding of perceived disability Categories as Substantially Limited may not rest merely on a single employer’s in a Broad Range or Class of Jobs. failure to hire a candidate. Baulos, 139 As noted above, two of the categories in F.3d at 1154 (‘‘Courts have uniformly held the DRL appear, at least superficially, to that an employer does not necessarily re- refer to the condition causing the reliance gard an employee as handicapped simply on a DRL drug, not merely the applicants’ by finding the employee to be incapable of use of a DRL medication.4 Although the satisfying the singular demands of a par- evidence suggests that these applicants ticular job.’’ (internal citation omitted)). were, like those in the other categories, [7] Thus, we affirm the district court’s often told that they were disqualified on grant of summary judgment in favor of the basis of the drug they were using Hunt as to the applicants rejected under at rather than on the basis of the condition least the ‘‘Not Permitted’’ and ‘‘Unsafe supporting their use of the drug, we brief- Effects’’ categories because EEOC has ly consider whether applicants using drugs failed to demonstrate that Hunt mistaken- from these two categories warrant a differ- ly perceived that the rejected applicants’ ent legal conclusion. We conclude that had impairments that substantially limited they do not. a ‘‘major life activity.’’ Accordingly, EEOC has failed to show that the appli- [8] Individuals suffering from the con- cants were ‘‘disabled’’ within the meaning ditions treated with the ‘‘Heart Condition’’ of the ADA. In so holding, we emphasize or ‘‘Disqualifying Condition’’ drugs are po- that this Court will not presume a mistak- tentially explicitly barred from truck driv- en assumption of disability based only on ing by 49 C.F.R. § 391.41.5 Hunt therefore 4. As noted in the discussion of the pertinent tery occlusion, and severe headache, while facts, the DRL contained five categories of the label ‘‘Heart Condition’’ attached to medi- drugs: ‘‘Rule out Side Effects,’’ ‘‘Not Permit- cines treating heart failure, thrombosis, ede- ted,’’ ‘‘Unsafe Effects,’’ ‘‘Heart Condition,’’ ma, congestive heart failure, ischemia, and and ‘‘Disqualifying Condition.’’ The EEOC ventric arrythmia. 49 C.F.R. § 391.41 ap- does not represent in this appeal any appli- pears to exclude persons with all of these cants rejected under the ‘‘Rule Out Side Ef- conditions from driving a commercial vehicle fects’’ category, thus removing that category where those conditions are likely to interfere from our consideration. J.B. Hunt Transp., with their ability to safely drive a commercial Inc., 128 F.Supp.2d at 122, n. 7. vehicle. 49 C.F.R. §§ 391.41(b)(3) (diabetes), 391.41(b)(4) (‘‘myocardial infarction, angina 5. Review of the DRL reveals that the label pectoris, coronary insufficiency, thrombosis, ‘‘Disqualifying Condition’’ attached to drugs or any other cardiovascular disease of a vari- treating Parkinson’s Disease, serious arryth- ety known to be accompanied by syncope, mia, alcoholism, epilepsy, seizure, migraines, dyspnea, collapse or congestive heart fail- dementia, depression, schizophrenia, diabe- ure’’), 391.41(b)(6) (high blood pressure), tes, severe arthritis, severe hypertension, opi- 391.41(b)(7) (‘‘rheumatic, arthritic, orthope- ate addiction, subarachnoid hemorrhage, ar- dic, muscular, neuromuscular, or vascular
  • 10. 78 321 FEDERAL REPORTER, 3d SERIES potentially regarded applicants using these V. drugs as substantially limited not just Although Hunt admittedly rejected the from driving Hunt vehicles according to applicants for its OTR driving positions the rules of the DRL and other company because of their use of certain prescription regulations, but as prevented from driving medications, the EEOC cannot succeed in legally for any commercial trucking com- its ADA claim on behalf the rejected appli- pany. As with the other categories in the cants. The record only shows that Hunt DRL, however, the restrictions on the regarded the applicants in question as ine- medications labeled ‘‘Disqualifying Condi- ligible for a specific position within Hunt, tion’’ or ‘‘Heart Condition’’ were placed on not that Hunt regarded them as ‘‘disabled’’ applicants taking the drug, not on appli- within the meaning of the ADA. The appli- cants with the underlying condition itself. cants, through the EEOC, therefore do not Even though in some cases, the company, have a valid ADA claim. under 49 C.F.R. § 391.41, could have cre- ated a policy excluding the applicant on For the reasons set forth above, this the basis of the underlying condition, the Court affirms the district court’s grant of basis for the exclusion from employment summary judgment to defendant Hunt and was the use of a listed drug, not any its denial of the cross-motion by plaintiff potential ‘‘disability’’ created by the treat- EEOC. ed disease.6 The judgment of the district court is AFFIRMED. We conclude, therefore, that any claims arising under the ‘‘Heart Condition’’ and ‘‘Disqualifying Condition’’ categories are SOTOMAYOR, Circuit Judge, dissenting. not distinguishable from the claims under the ‘‘Not Permitted’’ and ‘‘Unsafe Effects’’ This case is quite straightforward. categories and so they must also fail. Based upon a list of drugs and their poten- disease’’), 391.41(b)(8) (epilepsy or ‘‘any other current regulations. See 49 C.F.R. condition which is likely to cause loss of con- § 391.41(b)(4). sciousness’’), 391.41(b)(9) (‘‘mental, nervous, organic, or functional disease or psychiatric 6. For example, Amandtadine Hydrochloride, disorder’’), 391.41(b)(12)(i) (controlled sub- a drug to which the ‘‘Disqualifying Condi- stances), 391.41(b)(13) (alcoholism). ‘‘Mi- tion’’ label attaches treats both Parkinson’s granes’’ or ‘‘severe headaches,’’ as ‘‘vascular Disease and the flu. While an applicant tak- headache[s],’’ DORLAND’S ILLUSTRATED ing the drug for Parkinson’s might be dis- MEDICAL DICTIONARY 1042 (28th abled on the basis of the disease within the ed.1994), potentially fall within meaning of the ADA, an applicant using the § 391.41(b)(7)’s restriction on vascular dis- drug for the flu would not likely so qualify. ease. Hunt, however, would have excluded either EEOC alleged that Hunt misinterpreted a applicant because of the drug usage. Fur- DOT report cautioning about the effects of thermore, some ‘‘Disqualifying Condition’’ drugs used to treat heart conditions, claiming drugs treat the same underlying diseases as that the report merely required individual as- drugs given other labels. For example Zoloft, sessment of each patient. The DOT subse- a drug used for treatment of, inter alia, de- quently issued a report clarifying that the use pression, is listed as ‘‘Unsafe Effects,’’ while of Coumadin, a anticoagulator previously questioned, was not automatically disqualify- Prozac, also for depression, is listed as ‘‘Dis- ing. J.B. Hunt Transp., Inc., 128 F.Supp.2d qualifying Condition.’’ This further supports at 120 n. 3 (describing reports). According to the idea that the drug, not the condition itself, the DRL, however, Coumadin treats thrombo- was the true basis of Hunt’s hiring ban. sis, a condition specifically prohibited by the
  • 11. E.E.O.C. v. J.B. HUNT TRANSPORT, INC. 79 Cite as 321 F.3d 69 (2nd Cir. 2003) tial side effects compiled by David White- truck driving in general is such a specific side, a Hunt employee with no medical class of jobs that a substantial limitation training, and a Medical Guidelines policy on truck driving would fail to imply a developed by Michael Gray, a former Red disability; its holding relies solely upon an Lobster cashier with no medical training inappropriately narrow view that Hunt who was, nevertheless, Hunt’s Medical Ad- perceived the applicants as limited only in visor, Hunt determined that certain appli- their ability to work as long haul truckers cants were unfit to be truck drivers. The for Hunt. EEOC has provided substantial evidence that Hunt believed that these individuals Contrary to the majority’s assertion, the were unfit to drive a truck, or, for that EEOC has produced significant evidence matter, to drive at all and were incapable that Hunt regarded the applicants as sub- of performing the broad class of jobs that stantially limited in the major life activity fall under the classification ‘‘truck driving.’’ of working as truck drivers in general. An Based upon this showing, I would vacate employer perceives an employee to be sub- the district court’s grant of summary judg- stantially limited in his or her ability to ment and hold that there is a genuine work if it believes the employee is: dispute of material fact with respect to significantly restricted in the ability to whether the EEOC has established a pri- perform either a class of jobs or a broad ma facie case of disability discrimination. range of jobs in various classes as com- I therefore respectfully dissent. pared to the average person having com- I agree with the majority that the issue parable training, skills and abilities. in this appeal is whether the applicants The inability to perform a single, partic- were denied truck driving positions at ular job does not constitute a substantial Hunt because of their perceived disability limitation in the major life activity of within the meaning of the ADA. Ignoring working. significant evidence that Hunt perceived 29 C.F.R. § 1630.2(j)(3)(i); see also Bart- the applicants as more broadly limited, lett v. N.Y. State Bd. of Law Exam’rs, 226 however, the majority holds that the F.3d 69, 82–83 (2d Cir.2000). Factors that EEOC has only provided evidence that may be considered under this standard Hunt perceived the rejected applicants as include the geographical area to which an ‘‘ineligible for a specific position within individual has reasonable access; the num- Hunt.’’ Ante at 78. In doing so, the major- ber and types of jobs utilizing similar ity reasons that long haul trucking is not a training, knowledge, skills or abilities as sufficiently broad class of jobs such that a the job from which the applicant has been substantial limitation on an individual’s disqualified; and the number and types of ability to be a long haul trucker would jobs not utilizing similar training, knowl- imply that the individual was disabled edge, skills or abilities from which the within the meaning of the ADA. See ante applicant will also be disqualified. 29 at 75–76. The majority asserts that a C.F.R. § 1630.2(j)(3)(ii). limitation on an individual’s ability to be a long haul truck driver does not substan- If other jobs utilizing an individual’s tially limit his or her ability to engage in skills are available, that person is not sub- the major life activity of working, as many stantially limited in a class of jobs, even if other truck driving jobs are available for this alternate employment would not allow these individuals. See ante at 75–76. The the individual to showcase his or her spe- majority does not, however, hold that cial talents. Sutton v. United Air Lines,
  • 12. 80 321 FEDERAL REPORTER, 3d SERIES Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144 Labor Statistics, Occupational Outlook L.Ed.2d 450 (1999). In Sutton, the Su- Handbook 577 (2002–03), available at preme Court determined that plaintiffs ap- http://www.bls.gov/oco/pdf/ocos246.pdf. plying for positions as global airline pilots This evidence demonstrates that truck could use their particular skills to obtain driving is a general field of employment other piloting positions from which they rather than a specific position. Accord were not disqualified, so these plaintiffs Baulos v. Roadway Express, Inc., 139 were not regarded as being shut out from F.3d 1147, 1154 (7th Cir.1998) (holding an entire occupational class. Id. at 492–93, that driving a sleeper car is a specific job 119 S.Ct. 2139. In applying this rubric, within the class of truck drivers); Best v. the Second Circuit has found that practic- Shell Oil Co., 107 F.3d 544, 548 (7th Cir. ing law is a broad occupational class, see 1997) (holding that truck driving is a class Bartlett, 226 F.3d at 84, but that working of jobs). as a policeman is a specific position within the class of investigative or security jobs, The majority does not reach the ques- see Giordano v. City of New York, 274 tion whether truck driving is a class of F.3d 740, 749 (2d Cir.2001). jobs. Instead, the majority argues that The EEOC has proffered evidence that Hunt only dismissed the applicants be- the members of the plaintiff class have cause ‘‘Hunt found the applicants unsuited undergone specialized driver training, for long-distance driving of Hunt’s 40–ton earned commercial drivers’ licenses, trucks on irregular, stressful schedules.’’ passed road tests and received medical Ante at 76. Such hyperbole is inapposite. certifications pursuant to DOT regulations. Whether long haul trucking is, in fact, The set of jobs that call for these qualifica- different from other types of truck driving tions includes driving various types of is not the central issue in this appeal; small and large trucks, including tractor- Hunt’s perception of the applicants as sub- trailers, moving trucks, and cargo vans. stantially limited in their ability to drive See Office of Management & Budget, Stan- trucks, without further limitation to long dard Occupational Classification Manual haul truck driving, is the central issue. 220 (2000), available at http:// www.bls.gov/soc/soc v3d0.htm. The De- Beyond this basic misconception, the partment of Labor classifies truck driving majority also misrepresents the record by as a separate occupation within the overall asserting that the evidence ‘‘does not indi- category of ‘‘Transportation and Material cate that Hunt perceived the applicants as Moving Occupations,’’ as does the Office of more broadly limited.’’ Ante at 77. To the Management and Budget. Id. The De- contrary, the EEOC provided significant partment of Labor estimated that in 2000 evidence that Hunt believed that the appli- there were more than 3.3 million jobs that cants were unfit to drive trucks. Numer- came under the heading of ‘‘Truckdriver ous drugs were listed on the DRL as ‘‘Not and Driver/Sales Workers.’’ 1 Bureau of Permitted,’’ 2 reflecting a belief that the 1. Driver/Sales Workers drive trucks and work from the two condition-based categories, as sales agents for the goods they haul; both ‘‘Disqualifying Condition’’ and ‘‘Heart Condi- of these aspects are integral to their jobs. See tion.’’ Ultimately, the majority finds no legal Occupational Outlook Handbook 576–77 distinction between the ‘‘condition’’ catego- (2002–03). ries and the others. See ante at 78. 2. The majority discusses the categories ‘‘Not Permitted’’ and ‘‘Unsafe Effects’’ separately
  • 13. E.E.O.C. v. J.B. HUNT TRANSPORT, INC. 81 Cite as 321 F.3d 69 (2nd Cir. 2003) applicant was prohibited by DOT regula- employee that he would ‘‘never drive for tions from driving a commercial vehicle anybody,’’ and numerous other applicants while taking that particular medication. were told that the medications they were Dr. Cooper, Hunt’s physician consultant, taking made it unsafe for them to drive a testified with respect to one applicant that truck, or drive in general. See, e.g., Curtin he did not feel it was ‘‘in this patient’s best Decl., Exh. 13 (reviewer told applicant interest to pursue this profession.’’ Inter- ‘‘that she could not be on [the medication] view records show that the company be- and drive [because] it can cause unsafe lieved another applicant ‘‘would most likely affect [sic]’’); id. (reviewer told applicant have difficulty functioning in the lifestyle ‘‘that he could not drive[ ] while on this of a trucker.’’ Similarly, Dr. Cooper indi- medication’’); id. (reviewer told applicant cated with regard to another applicant that ‘‘that she cannot be on [the medication] her ‘‘problems with sleep and concentra- and drive’’); Curtin Decl., Exh. 20 (drug is tion under stress are not very compatible ‘‘not permitted for driving’’); id. (‘‘[b]oth with the lifestyle expected of a driver.’’ drugs are not approved for driving’’); id. Applicant Joseph Lisa was told by a Hunt (reviewer ‘‘informed applicant that he can- I agree that all four categories of medi- Condition’’ category). In addition, Hunt’s cations on the DRL at issue here should be Medical Guidelines relating to mental and treated identically. I disagree, however, psychological conditions required that in or- with the majority’s statement that ‘‘the basis der to qualify for a job, an applicant taking for the exclusion from employment was the medication for depression must remain off use of a listed drug, not any potential ‘dis- the medication for thirty days and submit a ability’ created by the treated disease.’’ Ante letter from a doctor stating that he or she no at 77–78. The EEOC has produced signifi- longer suffers from the underlying condition. cant evidence that demonstrates the link be- Contrary to the majority’s assertion, this evi- tween the drug categories and potential un- dence provides a direct causal link between derlying conditions. For example, one of the applicants’ underlying conditions and Hunt’s interviewers noted that the ‘‘applicant Hunt’s perception of the applicants as sub- did not indicate the reason he is taking [the stantially limited in their ability to work as medication]. [N]eed to verify why he is on truck drivers. this medication.’’ Similar comments were To make a further distinction that it ulti- made by reviewers with respect to applicants mately finds insignificant, the majority asserts taking medications in each of Hunt’s catego- that ‘‘[i]ndividuals suffering from the condi- ries. See, e.g., Curtin Decl., Exh. 18 (appli- tions treated with the ‘Heart Condition’ or cant needs to provide ‘‘headach [sic] release ‘Disqualifying Condition’ drugs are potentially TTT [and a] statement that she is not taking explicitly barred from truck driving by 49 [the medication] for depression’’) (‘‘Not Per- C.F.R. § 391.41.’’ Ante at 76–77 & n. 5 Many mitted’’ category); id. (‘‘Sent to Brenda for of the conditions listed in this regulation only review on cardiovasular [sic] condition’’) disqualify an individual if the condition is (‘‘Not Permitted’’ category); Curtin Decl., ‘‘likely to interfere with his/her ability to con- Exh. 20 (‘‘the diagnosis and severity of her trol and drive a commercial motor vehicle condition for which she takes the medication safely,’’ 49 C.F.R. § 391.41(b)(5), or otherwise is considered disqualifying’’) (‘‘Unsafe Ef- suggest that an individualized determination fects’’ category); id. (applicant ‘‘will need to of potential safety concerns is required. See complete his treatments TTT and send in all id. § 391.41(b)(6)-(12). In relying on these records when his condition is resolved’’) regulations to support Hunt’s policy, the ma- (‘‘Unsafe Effects’’ category); Curtin Decl., jority ignores the crucial difference between Exhs. 23, 25 (applicant needs to ‘‘provide a individualized determinations of driver safety statment [sic] that TTT his condition is fine and Hunt’s explicit policy to create a per se w/out the meds’’) (‘‘Disqualifying Condition’’ bar from truck driving with respect to these or ‘‘Heart Condition’’ category); id. (Hunt individuals. Hunt’s policy simply assumes, ‘‘need[ed] all records on [applicant’s] condi- without justification, that these individuals tion’’) (‘‘Disqualifying Condition’’ or ‘‘Heart are unfit to drive trucks.
  • 14. 82 321 FEDERAL REPORTER, 3d SERIES not take [the medication] and drive’’); drive; a factfinder reasonably could im- Curtin Decl., Exhs. 23, 25 (reviewer ‘‘in- pute these statements to Hunt, even if formed appl[icant] that he could not take these employees were not the ultimate de- the med[ication] on [the] truck’’); Curtin cision makers. Hunt proffers no evidence Decl., Adair Depo. (representative told ap- that these unidentified ‘‘ultimate hiring au- plicant ‘‘it’s illegal to drive a truck with thorities’’ did not share the reviewers’ per- that [medication]’’); Curtin Decl., Manning ceptions or rely upon their statements Depo. (representative told applicant ‘‘it about the applicants’ limitations. Indeed, was illegal for a driver to drive while on Hunt does not argue otherwise; it simply this medication’’). The EEOC has provid- argues that its employees’ statements im- ed sufficient evidence to create a factual plicitly refer only to jobs at Hunt. A fact- issue whether Hunt perceived the appli- finder is certainly allowed to determine cants as broadly limited in their ability to whether the statement that an applicant work as a truck driver. would ‘‘never drive for anybody’’ implicitly The majority explains this evidence by refers only to jobs at Hunt; it is not, stating: however, this Court’s job to do so. In Although a few evaluators’ comments reviewing whether summary judgment is could be more broadly interpreted, there appropriate, this Court does not make fac- is no evidence that Hunt’s reviewers, tual determinations or refuse to credit le- relying on Hunt’s own DRL and drug gitimate inferences based upon the evi- lists to make a judgment on qualification dence presented, but views the evidence in for a position at Hunt, intended to make the light most favorable to the nonmoving an evaluation beyond Hunt’s specific party. See Giordano, 274 F.3d at 746. guidelines. Hunt also argues that the statements of Ante at 76–77. In reviewing a grant of Dr. Cooper should not be imputed to it. summary judgment, however, we do not The EEOC provides significant evidence refuse to credit a broad, but reasonable, that Hunt relied on Dr. Cooper’s advice, interpretation of the evidence. Giordano, including, for example, a reviewer’s state- 274 F.3d at 749–50. Even if this were the ment that the applicant was ‘‘disqualified standard, Hunt’s reviewers stated that one per Dr. Cooper.’’ This suffices to provide applicant would ‘‘never drive for anybody,’’ a direct link between Dr. Cooper’s opin- and made similar statements about many ions regarding applicants and Hunt’s view other applicants; it is difficult to imagine a of the applicants as disabled. clearer statement that the reviewers in- Finally, the majority’s argument that tended to say that the applicants were, in Hunt’s policy should not be imputed to fact, substantially limited in their ability to other companies in determining whether work as a truck driver for any company. the applicants were perceived as disabled The majority asserts that because is immaterial. Contrary to the majority’s Hunt’s reviewers were not the ultimate assertion, this is not a case in which the decision makers, the comments ‘‘simply potential imputation of Hunt’s policy to are not sufficient to indicate that Hunt other companies would result in the appli- thought the applicants were more broadly cants being regarded as ‘‘substantially lim- limited.’’ Ante at 76–77. Again, this is a ited in the major life activity of working matter for the factfinder to decide. only as a result of this imputation.’’ Sut- Hunt’s own employees stated on several ton, 527 U.S. at 493, 119 S.Ct. 2139. It is occasions that applicants were unfit to Hunt’s explicit statement that it believed
  • 15. CICIO v. DOES 83 Cite as 321 F.3d 83 (2nd Cir. 2003) applicants to be unfit to drive a truck that suit against plan administrator for employ- supports Hunt’s perception of these indi- ee benefits plan, its medical director, and viduals as substantially limited in their others, alleging state law claims arising ability to drive a truck; no potential impu- out of decision to deny preauthorization for tation is required. Thus, the EEOC has medical procedure recommended by treat- provided sufficient evidence that a factfin- ing physician. Defendants removed action der could reasonably conclude that Hunt and moved to dismiss for failure to state regarded the rejected applicants as sub- claim. Widow moved to remand. The Unit- stantially limited in the major life activity ed States District Court for the Eastern of working, because Hunt regarded them District of New York, Joanna Seybert, J., as unfit to be truck drivers. 208 F.Supp.2d 288, adopting the report and recommendation of United States CONCLUSION Magistrate Judge E. Thomas Boyle, grant- ed motion to dismiss on ground of preemp- Because I find ample support in the tion under the Employee Retirement In- record for the assertion that Hunt regard- come Security Act (ERISA), and widow ed the applicants as d substantially limited appealed. The Court of Appeals, Sack, Cir- in the major life activity of working, and cuit Judge, held that: (1) negligent delay thus, the applicants were disabled within and misrepresentation claims were remov- the meaning of the ADA, I respectfully able under complete preemption doctrine; dissent. (2) court had supplemental jurisdiction over medical malpractice claim; (3) negli- , gent delay and misrepresentation claims were subject to dismissal as conflict preempted; and (4) on issue of first im- pression, state law medical malpractice Bonnie CICIO, individually and as Ad- claim brought with respect to a medical ministratrix of the Estate of Car- decision made in the course of prospective mine Cicio, Plaintiff–Appellant, utilization review by a managed care orga- nization or health insurer is not preempted v. under ERISA. John DOES 1–8, Defendants, Affirmed in part, vacated in part, and remanded. Vytra Healthcare, and Brent Spears, M.D., Defendants–Appellees. Calabresi, Circuit Judge, filed an opin- ion dissenting in part. Docket No. 01–9248. United States Court of Appeals, Second Circuit. 1. Removal of Cases O107(9) District court’s denial of a motion to Argued: June 20, 2002. remand is reviewed de novo. Decided: Feb. 11, 2003. 2. Federal Courts O776 As Amended: March 12, 2003. District court’s decision to grant a motion to dismiss for failure to state a Widow, on behalf of herself and her claim is reviewed de novo. Fed.Rules Civ. late husband’s estate, brought state court Proc.Rule 12(b)(6), 28 U.S.C.A.