EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. J.B. HUNT TRANSPORT, INC.
Docket No. 01-6084
United States Court of Appeals, Second Circuit
Decided: Feb. 5, 2003
Argued: Jan. 9, 2002
321 F.3d 69
VI. Conclusion
The district court properly concluded that this insurance coverage dispute should be heard in Maine and resolved pursuant to Maine law. Because CI‘s duty to defend was clear, the district court рroperly awarded attorney‘s fees to Auto Europe.
The judgment of the district court is therefore affirmed.
leaves some ambiguity on whether allegations of intentional conduct eliminate the duty to defend pursuant to an intentional acts policy exclusion even when facts could be developed at trial to support judgment for the plaintiff based on non-intentional conduct. See, e.g., Applestein, 377 So.2d at 231 (holding that allegations of malice and deliberate “‘attempt to discredit‘” negated coverage).
James H. Hanson, Scopelitis, Garvin, Light & Hanson, Indianapolis, IN (Laurie T. Baulig, Scopelitis, Garvin, Light & Hanson, Washington, DC, Thomas J. Grooms, Bond Schoeneck & King, Syracuse, NY, on brief), for Defendant-Appellee.
Before: JACOBS, F.I. PARKER, SOTOMAYOR, Circuit Judges.
F.I. PARKER, Circuit Judge.
J.B. Hunt Transport, Inc. chose not to employ over-the-road truck drivers who used prescription medications with side effects that might impair driving ability. The Equal Employment Opportunity Commission argued that under the Americans with Disabilities Act, Hunt‘s decision violated the rights of job applicants using those medications. We disagree.
I.
Plaintiff-Appellant Equal Employment Opportunity Commission (“EEOC“) appeals from the February 8, 2001 decision of the United States District Court for the Northern District of New York (Norman A. Mordue, Judge) granting defendant J.B. Hunt Transport Inc.‘s (“Hunt“‘s) motion for summary judgment and denying plaintiff EEOC‘s cross-motion for summary judgment. The district court found that the applicants in question had been denied over-the-road driving positions with Hunt because of their use of medications with potentially harmful side effects, and not as a result of an actual or perceived disability or a record of disability as contemplated by the Americans with Disabilities Act оf 1990,
II.
J.B. Hunt Transportation, Inc. (“Hunt“) is the nation‘s largest publicly held motor carrier company. Hunt operates for-hire property transport services in the forty-eight contiguous states, the District of Columbia, Canada, and Mexico. Its fleet includes 8,000 tractors, and it employs approximately 12,000 individuals to drive the trucks. Of these employees, approximately 10,000 are the over-the-road (“OTR“) drivers whose positions are at issue in this case. These OTR drivers operate vehicles weighing approximately 80,000 pounds over irregular routes under particularly difficult work conditions, including sleep deprivation, irregular work and rest cycles, inclement weather, long driving periods, long layovers, irregular meal schedules, tight delivery schedules, en route delays, night driving, accumulated fatigue, stress, and extended periods of loud noise and vibrations. According to Hunt, the large vehicle size and extreme driving conditions faced by its OTR drivers warrant heightened safety evaluations of those OTR drivers.
A. The Drug Review List
Between September 1993 and May 1994, in an effort to comply with the FMCSAR in its hiring processes, Hunt created a Drug Review List (“DRL“) of medications known to have side effects that might impair driving ability. The list, thirty-sеven pages in length and including over 836 medications, was compiled by Hunt‘s Safety Department Director of Compliance, David Whiteside (“Whiteside“), based entirely on notations in the 1993 edition of the Physician‘s Desk Reference (“PDR“). Whiteside divided the DRL into six columns labeled “name,” “class,” “comment,” “restriction,” “treats,” and “1993 PDR page number.” In the “restriction” column, Whiteside indicated the impact a particular drug might have on an applicant‘s eligibility. Whiteside designated five categories of restrictions: “Rule Out Side [E]ffects,” “Not Permitted,” “Unsafe [E]ffects,” “Heart Condition,” and “Disqualifying Condition.”1 An applicant whose medication had a “Rule Out Side Effects” notation was required to obtain a release from the prescribing doctor certifying that the applicant could safely drive a tractor trailer truck while using the medication. An applicant taking a “Not Permitted,” “Unsafe Effects,” “Disqualifying Condition,” or “Heart Condition” medication could not drive for Hunt while using the indicated medication.2 The notation “Unsafe Effects” indicated either that the PDR cautioned users against operating heavy equipment or driving automobiles while taking the drug (noted as “warning on driving” in the comment column) or that the drug caused drowsiness, sedation, or a high incidence of dizziness. A “Rule Out Side Effects” notation indicated that a medication could cause side effects similar to, but less pervasive than, those warranting an “Unsafe Effects” label. Finally, “Heart Condition” indicated that the medication was generally used for heart problems that could disqualify drivers under DOT regulations.
Upon receiving an application for a commercial driving position, Hunt forwarded the applicаtion to its Corporate Driver Personnel Department in Lowell, Arkansas for screening of motor vehicle, criminal, and prior employment records and for a review of listed references. If an applicant passed this first level of screening and received a conditional employment offer, the applicant underwent medical screening, including questioning regarding the applicant‘s use of prescription medication for the last five years. Hunt used non-medical personnel to conduct these screenings. If the applicant indicated use of a prescription drug, the reviewing employee consulted Hunt‘s medical guidelines3 and the DRL to determine the applicant‘s medical eligibility.
C. The EEOC Claim
EEOC claims that Hunt improperly rejected 546 applicants in violation of the ADA on the basis of a “blanket” exclusionary policy. EEOC admits, however, that Hunt hired several applicants who were using drugs prohibited under the DRL—in 1995, two applicants using drugs labeled “Disqualifying Condition” and eleven using drugs labeled “Unsafe Effects,” and in 1996 and 1997, one applicant taking a “Disqualifying Condition” drug and thirteen using drugs with “Unsafe Effects.” Prior to commencing work, each of these new employees provided Hunt with medical documentation from a treating physician or health care provider certifying that he or she did not suffer from the potentially problematic side effects and could operate a truck safely while taking the drug.
III.
EEOC filed its complaint in the United States District Court for the Northern District of New York on October 24, 1997. Both sides moved for summary judgment. EEOC alleged that Hunt violated the ADA by discriminating against individuals with disabilities or “perceived” disabilities. Hunt alleged that the DRL was a safety-related qualification standard addressing serious business concerns. The district court granted summary judgment for Hunt and denied EEOC‘s summary judgment motion based on (1) its conclusion that ADA protections did not extend to the excluded driver-applicants because the applicants were not, by virtue of their use of certain medications, disabled within the meaning of the ADA, and (2) its finding that the EEOC had failed to contradict Hunt‘s assertion that its use of the DRL as a safety measure was reasonable within DOT guidelines. Equal Employment Opportunity Comm‘n v. J.B. Hunt Transp., Inc., 128 F.Supp.2d 117, 135-36 (N.D.N.Y.2001). On appeal, EEOC abandoned its argument that the excluded applicants were “disabled” under the ADA, claiming only that the district court erred by granting summary judgment to Hunt when the evidence supported the conclusion that Hunt regarded the applicants as disabled because оf their use of medications on the DRL.
IV.
We review a district court‘s grant of summary judgment de novo, construing the evidence presented below in the light most favorable to the non-moving party. Manning v. Utils. Mut. Ins. Co., 254 F.3d 387, 391 (2d Cir.2001). While
A. The Statutory Framework and the Definition of “Disability.”
The ADA provides a deceptively simple definition of disability:
The term “disability” means, with respect to an individual—
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
Although EEOC initially challenged Hunt‘s reliance on the DRL under all three prongs of the statutory definition of “disability,” on appeal, EEOC alleges only that the rejected OTR driver applicants were “regarded as” disabled by Hunt based on their use of certain medications, invoking the statutory definition of disability under
Evaluating the evidence before the district court, this Court agrees with the court below that EEOC failed to put forth evidence sufficient to demonstrate that the rejected applicants were “disabled” within the meaning of the ADA. Specifically, EEOC failed to set forth evidence sufficient to establish that Hunt perceived rejected applicants as substantially limited in their ability to perform a major life activity.
B. The Evidence Is Insufficient To Support the Inference that Hunt Regarded Applicants as Having a “Substantial Limitation” on a “Major Life Activity.”
To qualify for ADA protections, a person‘s “impairment” must “substantially limit” a “major life activit[y].”
With respect to the major life activity of working—
(i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
1. Driving 40-Ton, 18-Wheel Trucks Over Long Distances for Extended Periods is Neither a “Class of Job” nor a “Broad Range of Jobs” Within the Meaning of the ADA.
Driving freight-carrying tractor-trailer trucks over long distances for extended periods of time is neither a “class of jobs” nor a “broad range of jobs,” as the EEOC alleges, but rather a specific job with specific requirements. Such a position requires specific abilities, especially the ability to stay alert over long hours under difficult conditions. A Hunt OTR driver‘s alertness cannot flag. He or she must be able to stay alert and withstand the mesmerizing affect of driving an eighteen-wheel vehicle for hours at a stretch, sometimes at night, with continuous vibration over long distances. Given these demanding requirements, the fact that one may not be able to perform the specific job of a Hunt OTR driver does not mean that one could not successfully engage in other types of truck driving, let alone in other kinds of safety-sensitive work.
In Sutton, the Supreme Court considered the claims of pilots who had been denied positions as “global pilots” with United Airlines. The Supreme Court held that the position of “global pilot” was “a single job” and, therefore, was not sufficiently broad to satisfy the “major life activity requirement“. Sutton, 527 U.S. at 493. The Court reasoned that “there are a number of other positions utilizing petitioners’ skills, such as regional pilot and pilot instructor to name a few.” Id.
Like the limitation that United Airlines placed on global airline pilots in Sutton, the limitation that Hunt placed on applicants for the position of OTR driver was a limitation on a particular job within a larger group of jobs, and not a substantial limitation on working. See Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1154 (7th Cir.1998) (driving sleeper trucks is a specific job within the broader class of truck driving jobs). Therefore, the applicants’ perceived unsuitability for the position of OTR driver cannot be characterized as a perceived inability to perform a broad range or a class of jobs. This is true even assuming that truck-driving in general is a sufficiently broad range or class of jobs to constitute a “major life activity“, an issue we do not need to reach. As the dissent readily acknowledges, persons licensed to drive the types of vehicles driven by Hunt OTR drivers are also qualified to drive “various types of small and large trucks, including tractor-trailers, moving trucks, and cargo vans.” Dissent page 80.
Accordingly, to show that Hunt perceived applicants rejected under the DRL as substantially limited in a major life ac
2. The Evidence Is Not Sufficient To Support a Reasonable Inference that Hunt Regarded Applicants Rejected Under the “Not Permitted” and “Unsafe Effects” Categories as Substantially Limited in a Broad Range or Class of Jobs.
The EEOC argues that Hunt regarded applicants who took particular medications as incapable of driving trucks, which according to the EEOC constitutes either a “class of jobs” or a “broad range of jobs.” The record, however, only shows that Hunt saw the applicants as unfit to perform a job for which they were seeking applicants: long-distance, freight-carrying, tractor-trailer driving. The Supreme Court has clearly stated that “[t]he inability to perform a single, particular job,” however, “does not constitute a substantial limitation in the major life activity of working.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 493 (1999). Here, Hunt dismissed the applicants as unable to meet Hunt‘s own safety requirements—requirements above and beyond the DOT‘s industry-wide standards and unique from the requirements of other trucking companies. See Compl. ¶ 18c; Def.‘s Statement of Material Facts at 7; see also Adair Dep. at 85-86; J.B. Hunt Transp., Inc., 128 F.Supp.2d at 129 n. 17 (noting drivers were employed by other trucking companies while taking same medications).
The evidence suggests that Hunt found the applicants unsuited for long-distance driving of Hunt‘s 40-ton trucks on irregular, stressful schedules, but does not indicate that Hunt perceived the applicants as more broadly limited. The fact that Hunt did not have another, less demanding driving position to offer the candidates does not indicate that Hunt perceived the candidates as being unqualified for any driving position at all. Giordano v. City of New York, 274 F.3d 740, 748-50 (2d Cir.2001) (finding inability of the New York Police Department to offer light duty, non-patrol position to officer taking anti-coagulation medication did not demonstrate that officer was substantially limited in working where other security and law enforcement jobs in the area had such positions); see also Baulos v. Roadway Express Inc., 139 F.3d 1147, 1154 (2d Cir.1998) (concluding that truck drivers unable to operate sleeper trucks did not show that they were regarded as disabled where employer did not offer them less demanding, non-overnight positions that were taken by drivers with more seniority).
EEOC references a few comments from Hunt‘s evaluators to candidates suggesting that certain candidates were not suited to any form of professional driving. These comments, made by peoрle other than the ultimate hiring authorities, simply are not sufficient to indicate that Hunt thought the applicants were more broadly limited given the heightened nature of Hunt‘s standards and the fact that Hunt did hire some applicants on DRL medications. Although a few evaluators’ comments could be more broadly interpreted, there is no evidence that Hunt‘s reviewers, relying on Hunt‘s own DRL and drug lists to make a judgment on qualification for a position at Hunt, intended to make an evaluation beyond Hunt‘s specific guidelines. Nor is there sufficient evidence to support a finding that Hunt viewed the driving limitation as extending beyond Hunt. Furthermore, as the Supreme Court has clearly stated, “[i]t is not enough to say that if the physical criteria of a single employer were imputed to all similar em
In short, EEOC demonstrated only that Hunt refused to hire certain applicants according to its own hiring criteria; however, a finding of perceived disability may not rest merely on a single employer‘s failure to hire a candidate. Baulos, 139 F.3d at 1154 (“Courts have uniformly held that an employer does not necessarily regard an employee as handicapped simply by finding the employee to be incapable of satisfying the singular demands of a particular job.” (internal citation omitted)).
Thus, we affirm the district court‘s grant of summary judgment in favor of Hunt as to the applicants rejected under at least the “Not Permitted” and “Unsafe Effects” categories because EEOC has failed to demonstrate that Hunt mistakenly perceived that the rejected applicants’ had impairments that substantially limited a “major life activity.” Accordingly, EEOC has failed to show that the applicants were “disabled” within the meaning of the ADA. In so holding, we emphasize that this Court will not presume a mistaken assumption of disability based only on an employer‘s decision not to hire certain candidates.
3. The Evidence Is Also Not Sufficient To Support a Reasonable Inference that Hunt Regarded Applicants Rejected Under the “Disqualifying Condition” and “Heart Condition” Categories as Substantially Limited in a Broad Range or Class of Jobs.
As noted above, two of the categories in the DRL appear, at least superficially, to refer to the condition causing the reliance on a DRL drug, not merely the applicants’ use of a DRL medication.4 Although the evidence suggests that these applicants were, likе those in the other categories, often told that they were disqualified on the basis of the drug they were using rather than on the basis of the condition supporting their use of the drug, we briefly consider whether applicants using drugs from these two categories warrant a different legal conclusion. We conclude that they do not.
Individuals suffering from the conditions treated with the “Heart Condition” or “Disqualifying Condition” drugs are potentially explicitly barred from truck driving by
We conclude, therefore, that any claims arising under the “Heart Condition” and “Disqualifying Condition” categories are not distinguishable from the claims under the “Not Permitted” and “Unsafe Effects” categories and so they must also fail.
V.
Although Hunt admittedly rejected the applicants for its OTR driving positions because of their use of certain prescription medications, the EEOC cannot succeed in its ADA claim on behalf the rejected aрplicants. The record only shows that Hunt regarded the applicants in question as ineligible for a specific position within Hunt, not that Hunt regarded them as “disabled” within the meaning of the ADA. The applicants, through the EEOC, therefore do not have a valid ADA claim.
For the reasons set forth above, this Court affirms the district court‘s grant of summary judgment to defendant Hunt and its denial of the cross-motion by plaintiff EEOC.
The judgment of the district court is AFFIRMED.
SOTOMAYOR, Circuit Judge, dissenting.
This case is quite straightforward. Based upon a list of drugs and their poten
I agree with the majority that the issue in this appeal is whether the applicants were denied truck driving positions at Hunt because of their perceived disability within the meaning of the ADA. Ignoring significant evidence that Hunt perceived the applicants as more broadly limited, however, the majority holds that the EEOC has only provided evidence that Hunt perceived thе rejected applicants as “ineligible for a specific position within Hunt.” Ante at 78. In doing so, the majority reasons that long haul trucking is not a sufficiently broad class of jobs such that a substantial limitation on an individual‘s ability to be a long haul trucker would imply that the individual was disabled within the meaning of the ADA. See ante at 75-76. The majority asserts that a limitation on an individual‘s ability to be a long haul truck driver does not substantially limit his or her ability to engage in the major life activity of working, as many other truck driving jobs are available for these individuals. See ante at 75-76. The majority does not, however, hold that truck driving in general is such a specific class of jobs that a substantial limitation on truck driving would fail to imply a disability; its holding relies solely upon an inappropriately narrow view that Hunt perceived the applicants as limited only in their ability to work as long haul truckers for Hunt.
Contrary to the majority‘s assertion, the EEOC has produced significant evidence that Hunt regarded the applicants as substantially limited in the major life activity of working as truck drivers in general. An employer perceives an employee to be substantially limited in his or her ability to work if it believes the employee is:
significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
If other jobs utilizing an individual‘s skills are available, that person is not substantially limited in a class of jobs, even if this alternate employment would not allow the individual to showcase his or her special talents. Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999). In Sutton, the Supreme Court determined that plaintiffs applying for positions as global airline pilots could use their particular skills to obtain other piloting positions from which they were not disqualified, so these plaintiffs were not regarded as being shut out from an entire occupational class. Id. at 492-93. In applying this rubric, the Second Circuit has found that practicing law is a broad occupational class, see Bartlett, 226 F.3d at 84, but that working as a policeman is a specific position within the class of investigative or security jobs, see Giordano v. City of New York, 274 F.3d 740, 749 (2d Cir.2001).
The EEOC has proffered evidence that the members of the plaintiff class have undergone specialized driver training, earned commercial drivers’ licenses, passed road tests and received medical certifications pursuant to DOT regulations. The set of jobs that call for these qualifications includes driving various types of small and large trucks, including tractor-trailers, moving trucks, and cargo vans. See Office of Management & Budget, Standard Occupational Classification Manual 220 (2000), available at
The majority does not reach the question whether truck driving is a class of jobs. Instead, the majority argues that Hunt only dismissed the applicants because “Hunt found the applicants unsuited for long-distance driving of Hunt‘s 40-ton trucks on irregular, stressful schedules.” Ante at 76. Such hyperbole is inapposite. Whether long haul trucking is, in fact, different from other types of truck driving is not the central issue in this appeal; Hunt‘s perception of the applicants as substantially limited in their ability to drive trucks, without further limitation to long haul truck driving, is the central issue.
Beyond this basic misconception, the majority also misrepresents the record by asserting that the evidence “does not indicate that Hunt perceived the applicants as more broadly limited.” Ante at 77. To the contrary, the EEOC provided significant evidence that Hunt believed that the applicants were unfit to drive trucks. Numerous drugs were listed on the DRL as “Not Permitted,”2 reflecting a belief that the
not take [the medication] and drive“); Curtin Decl., Exhs. 23, 25 (reviewer “informed applicant that he could not take the med[ication] on [the] truck“); Curtin Decl., Adair Depo. (representative told applicant “it‘s illegal to drive a truck with that [medication]“); Curtin Decl., Manning Depo. (representative told applicant “it was illegal for a driver to drive while on this medication“). The EEOC has provided sufficient evidence to create a factual issue whether Hunt perceived the applicants as broadly limited in their ability to work as a truck driver.
The majority explains this evidence by stating:
Although а few evaluators’ comments could be more broadly interpreted, there is no evidence that Hunt‘s reviewers, relying on Hunt‘s own DRL and drug lists to make a judgment on qualification for a position at Hunt, intended to make an evaluation beyond Hunt‘s specific guidelines.
Ante at 76-77. In reviewing a grant of summary judgment, however, we do not refuse to credit a broad, but reasonable, interpretation of the evidence. Giordano, 274 F.3d at 749-50. Even if this were the standard, Hunt‘s reviewers stated that one applicant would “never drive for anybody,” and made similar statements about many other applicants; it is difficult to imagine a clearer statement that the reviewers intended to say that the applicants were, in fact, substantially limited in their ability to work as a truck driver for any company.
The majority asserts that because Hunt‘s reviewers were not the ultimate decision makers, the comments “simply are not sufficient to indicate that Hunt thought the applicants were more broadly limited.” Ante at 76-77. Again, this is a matter for the factfinder to decide. Hunt‘s own employees stated on several occasions that applicants were unfit to
Hunt also argues that the statements of Dr. Cooper should not be imputed to it. The EEOC provides significant evidence that Hunt relied on Dr. Cooper‘s advice, including, for example, a reviewer‘s statement that the applicant was “disqualified per Dr. Cooper.” This suffices to provide a direct link between Dr. Cooper‘s opinions regarding applicants and Hunt‘s view of the applicants as disabled.
Finally, the majority‘s argument that Hunt‘s poliсy should not be imputed to other companies in determining whether the applicants were perceived as disabled is immaterial. Contrary to the majority‘s assertion, this is not a case in which the potential imputation of Hunt‘s policy to other companies would result in the applicants being regarded as “substantially limited in the major life activity of working only as a result of this imputation.” Sutton, 527 U.S. at 493. It is Hunt‘s explicit statement that it believed
CONCLUSION
Because I find ample support in the record for the assertion that Hunt regarded the applicants as substantially limited in the major life activity of working, and thus, the applicants were disabled within the meaning of the ADA, I respectfully dissent.
Bonnie CICIO, individually and as Administratrix of the Estate of Carmine Cicio, Plaintiff-Appellant, v. John DOES 1-8, Defendants, Vytra Healthcare, and Brent Spears, M.D., Defendants-Appellees.
Docket No. 01-9248.
United States Court of Appeals, Second Circuit.
Argued: June 20, 2002.
Decided: Feb. 11, 2003.
As Amended: March 12, 2003.