2003 e.e.o.c. v. j.b. hunt transport sotomayor

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69 E.E.O.C. v. J.B. HUNT TRANSPORT, INC. 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. See Ferraiolo Const. Co., 584 A.2d at 609 (‘‘Any ambiguity must be resolved in favor of a duty to defend.’’) (Maine law); Wil- kin Insulation Co., 161 Ill.Dec. 280, 578 N.E.2d at 930 (‘‘All doubts and ambiguities must be resolved in favor of the insured.’’) (Illinois law); Lime Tree Vill. Cmty. Club Ass’n, 980 F.2d at 1405 (‘‘If the allegations of the complaint leave any doubt as to the duty to defend, the question must be re- solved in favor of the insured.’’) (Florida law). Regardless of which of the three state’s laws applied, the potential for cov- erage existed at the time CI refused to defend Auto Europe. The duty to defend was therefore ‘‘clear’’ and, accordingly, the district court properly awarded attorney’s fees. 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 properly awarded attorney’s fees to Auto Europe. The judgment of the district court is therefore affirmed. , EQUAL EMPLOYMENT OPPOR- TUNITY COMMISSION, Plaintiff–Appellant, v. J.B. HUNT TRANSPORT, INC., Defendant–Appellee. Docket No. 01–6084. United States Court of Appeals, Second Circuit. Argued: Jan. 9, 2002. Decided: Feb. 5, 2003. Equal Employment Opportunity Com- mission (EEOC) commenced action pursu- ant to the Americans with Disabilities Act (ADA), alleging that truckload motor carri- er violated the ADA by discriminating against over-the-road truck drivers who used certain prescription medications. On parties’ cross-motions for summary judg- ment, the United States District Court for the Northern District of New York, Nor- man A. Mordue, J., 128 F.Supp.2d 117, granted summary judgment in favor of carrier, and EEOC appealed. The Court of 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 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).

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A judge on the United States Court of Appeals for the Second Circuit for the past 11 years, Sonia Sotomayor is now high on lists that lawyers and politicians have assembled of possible replacements for Justice David H. Souter of the Supreme Court. She has a reputation as a sharp, outspoken and fearless jurist, and many of her opinions have demonstrated a willingness to take the government to task whenever she believes the circumstances warrant it.

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Page 1: 2003 E.E.O.C. V. J.B. Hunt Transport   Sotomayor

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

cal in directing that any lack of claritymust be resolved in favor of the insured.See Ferraiolo Const. Co., 584 A.2d at 609(‘‘Any ambiguity must be resolved in favorof a duty to defend.’’) (Maine law); Wil-kin Insulation Co., 161 Ill.Dec. 280, 578N.E.2d at 930 (‘‘All doubts and ambiguitiesmust be resolved in favor of the insured.’’)(Illinois law); Lime Tree Vill. Cmty. ClubAss’n, 980 F.2d at 1405 (‘‘If the allegationsof the complaint leave any doubt as to theduty to defend, the question must be re-solved in favor of the insured.’’) (Floridalaw). Regardless of which of the threestate’s laws applied, the potential for cov-erage existed at the time CI refused todefend Auto Europe. The duty to defendwas therefore ‘‘clear’’ and, accordingly, thedistrict court properly awarded attorney’sfees.

VI. Conclusion

The district court properly concludedthat this insurance coverage disputeshould be heard in Maine and resolvedpursuant to Maine law. Because CI’s dutyto defend was clear, the district courtproperly awarded attorney’s fees to AutoEurope.

The judgment of the district court istherefore affirmed.

,

EQUAL EMPLOYMENT OPPOR-TUNITY COMMISSION,

Plaintiff–Appellant,

v.

J.B. HUNT TRANSPORT, INC.,Defendant–Appellee.

Docket No. 01–6084.

United States Court of Appeals,Second Circuit.

Argued: Jan. 9, 2002.

Decided: Feb. 5, 2003.

Equal Employment Opportunity Com-mission (EEOC) commenced action pursu-ant to the Americans with Disabilities Act(ADA), alleging that truckload motor carri-er violated the ADA by discriminatingagainst over-the-road truck drivers whoused certain prescription medications. Onparties’ cross-motions for summary judg-ment, the United States District Court forthe Northern District of New York, Nor-man A. Mordue, J., 128 F.Supp.2d 117,granted summary judgment in favor ofcarrier, and EEOC appealed. The Court ofAppeals, F.I. Parker, Circuit Judge, heldthat applicants perceived as unsuitable forposition of over-the-road truck driverswere not perceived as substantially limitedin major life activity of working, as wouldestablish ‘‘disability’’ under the ADA.

Affirmed.

Sotomayor, Circuit Judge, dissentedand filed opinion.

leaves some ambiguity on whether allegationsof intentional conduct eliminate the duty todefend pursuant to an intentional acts policyexclusion even when facts could be developedat trial to support judgment for the plaintiff

based on non-intentional conduct. See, e.g.,Applestein, 377 So.2d at 231 (holding thatallegations of malice and deliberate ‘‘ ‘attemptto discredit’ ’’ negated coverage).

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70 321 FEDERAL REPORTER, 3d SERIES

1. Federal Courts O776, 802

The Court of Appeals reviews a dis-trict court’s grant of summary judgmentde novo, construing the evidence presentedbelow in the light most favorable to thenon-moving party.

2. Federal Courts O759.1, 766

While the Court of Appeals may af-firm a district court’s grant of summaryjudgment on any ground with adequatesupport in the record, it may not affirmsummary judgment where any evidence inthe record would support a reasonable in-ference in favor of the opposing party.

3. Civil Rights O173.1

Applicants’ perceived unsuitability forposition of over-the-road truck drivers,based on their use of prescription medi-cations with side effects that could impairdriving ability, was not a perceived inabili-ty to perform broad range or class of jobs,but rather was limitation on particular jobwithin larger group of jobs, and thus appli-cants failed to establish that they wereperceived as substantially limited in majorlife activity of working, as would establish‘‘disability’’ under the ADA. Americanswith Disabilities Act of 1990, § 3(2), 42U.S.C.A. § 12102(2); 29 C.F.R.§ 1630.2(j)(3)(i).

4. Civil Rights O173.1

Truckload motor carrier did not viewapplicants who were perceived unsuitablefor position of over-the-road truck driversbased on their use of prescription medi-cations with side effects that could impairdriving ability as unable to drive anytrucks, so as to regard them as disabledwithin meaning of ADA, but rather per-ceived applicants as unfit to perform spe-cific job of long-distance, freight-carrying,tractor-trailer driving. Americans withDisabilities Act of 1990, § 3(2), 42 U.S.C.A.§ 12102(2); 29 C.F.R. § 1630.2(j)(3)(i).

5. Civil Rights O173.1

Comments made by people other thanultimate hiring authorities suggesting thatcertain applicants for position of over-the-road truck drivers were not suited to anyform of professional driving, based on theiruse of prescription medications with sideeffects that could impair driving ability,were not sufficient to indicate that truck-load motor carrier thought applicants weremore broadly limited in major life activityof working, so as to regard them as dis-abled within meaning of ADA, where carri-er had its own safety requirements aboveand beyond those of federal standards, andit did hire some applicants on medicationsat issue. Americans with Disabilities Actof 1990, § 3(2), 42 U.S.C.A. § 12102(2); 29C.F.R. § 1630.2(j)(3)(i).

6. Civil Rights O173.1

A finding of perceived disability, forpurposes of a discrimination action underthe ADA, may not rest merely on a singleemployer’s failure to hire a candidate.Americans with Disabilities Act of 1990,§ 2 et seq., 42 U.S.C.A. § 12101 et seq.

7. Civil Rights O240(2)

For purposes of a discrimination ac-tion under the ADA, courts will not pre-sume a mistaken assumption of disabilitybased only on an employer’s decision notto hire certain candidates. Americanswith Disabilities Act of 1990, § 2 et seq.,42 U.S.C.A. § 12101 et seq.

8. Civil Rights O173.1

Applicants for over-the-road truckdriver positions who suffered from condi-tions treated with prescription medicationswith side effects that could impair drivingability were not regarded as substantiallylimited in major life activity of workingbased on underlying condition itself, aswould establish ‘‘disability’’ under theADA; rather, employer perceived appli-

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71E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)

cants as unfit for positions based on use ofmedications with dangerous side effects.Americans with Disabilities Act of 1990,§ 3(2), 42 U.S.C.A. § 12102(2); 29 C.F.R.§ 1630.2(j)(3)(i); 49 C.F.R. § 391.41.

Julie L. Gantz, Equal Opportunity Em-ployment Commission (Nicholas M. Inzeo,Acting Deputy General Counsel, Philip B.Sklover, Associate General Counsel, Vin-cent J. Blackwood, Assistant GeneralCounsel, on brief), for Plaintiff–Appellant.

James H. Hanson, Scopelitis, Garvin,Light & Hanson, Indianapolis, IN (LaurieT. Baulig, Scopelitis, Garvin, Light & Han-son, Washington, DC, Thomas J. Grooms,Bond Schoeneck & King, Syracuse, NY, onbrief), for Defendant–Appellee.

Before: JACOBS, F.I. PARKER,SOTOMAYOR, Circuit Judges.

F.I. PARKER, Circuit Judge.

J.B. Hunt Transport, Inc. chose not toemploy over-the-road truck drivers whoused prescription medications with side ef-fects that might impair driving ability.The Equal Employment Opportunity Com-mission argued that under the Americanswith Disabilities Act, Hunt’s decision vio-lated the rights of job applicants usingthose medications. We disagree.

I.

Plaintiff–Appellant Equal EmploymentOpportunity Commission (‘‘EEOC’’) ap-peals from the February 8, 2001 decisionof the United States District Court for theNorthern District of New York (NormanA. Mordue, Judge ) granting defendantJ.B. Hunt Transport Inc.’s (‘‘Hunt’’ ’s) mo-tion for summary judgment and denyingplaintiff EEOC’s cross-motion for sum-mary judgment. The district court found

that the applicants in question had beendenied over-the-road driving positions withHunt because of their use of medicationswith potentially harmful side effects, andnot as a result of an actual or perceiveddisability 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 arguesexclusively that Hunt regarded the reject-ed applicants as disabled, i.e., substantiallylimited from a major life activity, as de-fined by 42 U.S.C. § 12102(2)(C) becauseof their use of certain medications. Be-cause we find that Hunt did not regard theapplicants as disabled as defined by theADA, we affirm the decision of the districtcourt.

II.

J.B. Hunt Transportation, Inc. (‘‘Hunt’’)is the nation’s largest publicly held motorcarrier company. Hunt operates for-hireproperty transport services in the forty-eight contiguous states, the District of Co-lumbia, Canada, and Mexico. Its fleet in-cludes 8,000 tractors, and it employs ap-proximately 12,000 individuals to drive thetrucks. Of these employees, approximate-ly 10,000 are the over-the-road (‘‘OTR’’)drivers whose positions are at issue in thiscase. These OTR drivers operate vehiclesweighing approximately 80,000 poundsover irregular routes under particularlydifficult work conditions, including sleepdeprivation, 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 andvibrations. According to Hunt, the largevehicle size and extreme driving conditionsfaced by its OTR drivers warrant height-ened safety evaluations of those OTR driv-ers.

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72 321 FEDERAL REPORTER, 3d SERIES

Like other motor carriers, Hunt is sub-ject to federal regulation under the De-partment of Transportation’s Federal Mo-tor Carrier Safety Act Regulations(‘‘FMCSAR’’). 49 C.F.R. § 301, et seq.(2001). These regulations establish mini-mum qualifications for any person drivinga commercial motor vehicle, as well asminimum duties for motor carriers usingOTR drivers. The regulations specificallyallow an operator to require and enforce‘‘more stringent requirements relating tosafety of operation and employee safetyand health’’, 49 C.F.R. § 390.3(d), and re-quire operators to restrict drivers fromoperating vehicles ‘‘while the driver’s abili-ty or alertness is so impaired, or so likelyto become impaired, through fatigue, ill-ness, or any other cause, as to make itunsafe for him/her to begin or continue tooperate the commercial motor vehicle.’’ Id.at § 392.3 (2001). A motor carrier is re-quired to ensure that drivers do not oper-ate unless they are in compliance with theDOT regulations. 49 C.F.R. §§ 391.11,392.3, 392.4(b)(2001).

A. The Drug Review List

Between September 1993 and May1994, in an effort to comply with theFMCSAR in its hiring processes, Huntcreated a Drug Review List (‘‘DRL’’) ofmedications known to have side effectsthat might impair driving ability. Thelist, thirty-seven pages in length and in-cluding over 836 medications, was com-piled by Hunt’s Safety Department Di-rector of Compliance, David Whiteside

(‘‘Whiteside’’), based entirely on notationsin the 1993 edition of the Physician’s DeskReference (‘‘PDR’’). Whiteside dividedthe DRL into six columns labeled ‘‘name,’’‘‘class,’’ ‘‘comment,’’ ‘‘restriction,’’ ‘‘treats,’’and ‘‘1993 PDR page number.’’ In the‘‘restriction’’ column, Whiteside indicatedthe impact a particular drug might haveon an applicant’s eligibility. Whitesidedesignated five categories of restrictions:‘‘Rule Out Side [E]ffects,’’ ‘‘Not Permit-ted,’’ ‘‘Unsafe [E]ffects,’’ ‘‘Heart Condi-tion,’’ and ‘‘Disqualifying Condition.’’ 1 Anapplicant whose medication had a ‘‘RuleOut Side Effects’’ notation was required toobtain a release from the prescribing doc-tor certifying that the applicant couldsafely drive a tractor trailer truck whileusing the medication. An applicant takinga ‘‘Not Permitted,’’ ‘‘Unsafe Effects,’’‘‘Disqualifying Condition,’’ or ‘‘Heart Con-dition’’ medication could not drive forHunt while using the indicated medi-cation.2 The notation ‘‘Unsafe Effects’’ in-dicated either that the PDR cautionedusers against operating heavy equipmentor driving automobiles while taking thedrug (noted as ‘‘warning on driving’’ in thecomment column) or that the drug causeddrowsiness, sedation, or a high incidenceof dizziness. A ‘‘Rule Out Side Effects’’notation indicated that a medication couldcause side effects similar to, but less per-vasive than, those warranting an ‘‘UnsafeEffects’’ label. Finally, ‘‘Heart Condition’’indicated that the medication was general-ly used for heart problems that could dis-qualify drivers under DOT regulations.

1. The Court will use the corrected labels‘‘Rule Out Side Effects’’ for ‘‘Rule Out SideAffects’’ and ‘‘Unsafe Effects’’ for ‘‘Unsafe Af-fects’’ throughout the opinion.

2. The district court found that Whiteside mis-takenly believed that the DOT prohibiteddrivers from using any Schedule II–V medi-cations, rather than only Schedule I medi-cations, and that he therefore included all of

these medications in the ‘‘Not Permitted’’ cat-egory. Equal Employment OpportunityComm’n v. J.B. Hunt Transp., Inc., 128F.Supp.2d 117, 120 n. 2 (N.D.N.Y.2001); see49 C.F.R. § 391.42(b)(12)(i) (prohibiting useof Schedule I drugs, amphetamines, narcot-ics, and other habit-forming drugs); 49C.F.R. § 392.2 (same).

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73E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)

B. The Hunt Hiring Process

Upon receiving an application for a com-mercial driving position, Hunt forwardedthe application to its Corporate DriverPersonnel Department in Lowell, Arkan-sas for screening of motor vehicle, crimi-nal, and prior employment records and fora review of listed references. If an appli-cant passed this first level of screening andreceived a conditional employment offer,the applicant underwent medical screen-ing, including questioning regarding theapplicant’s use of prescription medicationfor the last five years. Hunt used non-medical personnel to conduct these screen-ings. If the applicant indicated use of aprescription drug, the reviewing employeeconsulted Hunt’s medical guidelines 3 andthe DRL to determine the applicant’s med-ical eligibility.

C. The EEOC Claim

EEOC claims that Hunt improperly re-jected 546 applicants in violation of theADA on the basis of a ‘‘blanket’’ exclusion-ary policy. EEOC admits, however, thatHunt hired several applicants who wereusing drugs prohibited under the DRL—in1995, two applicants using drugs labeled‘‘Disqualifying Condition’’ and eleven usingdrugs labeled ‘‘Unsafe Effects,’’ and in1996 and 1997, one applicant taking a ‘‘Dis-qualifying Condition’’ drug and thirteenusing drugs with ‘‘Unsafe Effects.’’ Priorto commencing work, each of these newemployees provided Hunt with medicaldocumentation from a treating physicianor health care provider certifying that heor she did not suffer from the potentiallyproblematic side effects and could operatea truck safely while taking the drug.

III.

EEOC filed its complaint in the UnitedStates District Court for the NorthernDistrict of New York on October 24, 1997.Both sides moved for summary judgment.EEOC alleged that Hunt violated the ADAby discriminating against individuals withdisabilities or ‘‘perceived’’ disabilities.Hunt alleged that the DRL was a safety-related qualification standard addressingserious business concerns. The districtcourt granted summary judgment forHunt and denied EEOC’s summary judg-ment motion based on (1) its conclusionthat ADA protections did not extend to theexcluded driver-applicants because the ap-plicants were not, by virtue of their use ofcertain medications, disabled within themeaning of the ADA, and (2) its findingthat the EEOC had failed to contradictHunt’s assertion that its use of the DRLas a safety measure was reasonable withinDOT guidelines. Equal Employment Op-portunity Comm’n. v. J.B. Hunt Transp.,Inc., 128 F.Supp.2d 117, 135–36 (N.D.N.Y.2001). On appeal, EEOC abandoned itsargument that the excluded applicantswere ‘‘disabled’’ under the ADA, claimingonly that the district court erred by grant-ing summary judgment to Hunt when theevidence supported the conclusion thatHunt regarded the applicants as disabledbecause of their use of medications on theDRL.

IV.

[1, 2] We review a district court’sgrant of summary judgment de novo, con-struing the evidence presented below inthe light most favorable to the non-movingparty. Manning v. Utils. Mut. Ins. Co.,254 F.3d 387, 391 (2d Cir.2001). While

3. As the district court found, Hunt maintaineda restrictive policy on the use of drugs forpsychological conditions separate from theDRL. An applicant was not eligible to drive

for Hunt unless he or she had been off suchdrugs for at least thirty days before commenc-ing work. Hunt Medical Guidelines, April 11,1996.

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74 321 FEDERAL REPORTER, 3d SERIES

this Court may affirm on any ground withadequate support in the record, we maynot affirm summary judgment where anyevidence in the record would support areasonable inference in favor of the oppos-ing party. See McCarthy v. Am. Int’lGroup, Inc., 283 F.3d 121, 124 (2d Cir.2002); VKK Corp. v. Nat’l FootballLeague, 244 F.3d 114, 119 (2d Cir.2001).

A. The Statutory Framework and theDefinition of ‘‘Disability.’’

The ADA provides a deceptively simpledefinition of disability:

The term ‘‘disability’’ means, with re-spect to an individual—

(A) a physical or mental impairmentthat substantially limits one or moreof the major life activities of suchindividual;(B) a record of such an impairment;or(C) being regarded as having such animpairment.

42 U.S.C. § 12102(2)(1995). EEOC regu-lations further develop this definition, ex-plaining ‘‘physical or mental impairment’’as:

(1) Any physiological disorder, or condi-tion, cosmetic disfigurement, or anatomi-cal loss affecting one or more of thefollowing 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 disor-der, such as mental retardation, organicbrain syndrome, emotional or mental ill-ness, and specific learning disabilities.

29 C.F.R. § 1630.2(h) (2001).

Although EEOC initially challengedHunt’s reliance on the DRL under allthree prongs of the statutory definition of

‘‘disability,’’ on appeal, EEOC alleges onlythat the rejected OTR driver applicantswere ‘‘regarded as’’ disabled by Huntbased on their use of certain medications,invoking the statutory definition of disabil-ity under § 12102(2)(C). As the SupremeCourt explained in Sutton v. United AirLines, Inc., ‘‘[t]here are two apparentways in which individuals may fall withinthis [§ 12102(2)(C) ] statutory definition:(1) a covered entity mistakenly believesthat a person has a physical impairmentthat substantially limits one or more majorlife activities, or (2) a covered entity mis-takenly believes that an actual, nonlimitingimpairment substantially limits one ormore major life activities.’’ 527 U.S. 471,489, 119 S.Ct. 2139, 144 L.Ed.2d 450(1999).

Evaluating the evidence before the dis-trict court, this Court agrees with thecourt below that EEOC failed to put forthevidence sufficient to demonstrate that therejected applicants were ‘‘disabled’’ withinthe meaning of the ADA. Specifically,EEOC failed to set forth evidence suffi-cient to establish that Hunt perceived re-jected applicants as substantially limited intheir ability to perform a major life activi-ty.

B. The Evidence Is Insufficient ToSupport the Inference that HuntRegarded Applicants as Having a‘‘Substantial Limitation’’ on a ‘‘Ma-jor Life Activity.’’

To qualify for ADA protections, a per-son’s ‘‘impairment’’ must ‘‘substantiallylimit’’ a ‘‘major life activit[y].’’ 42 U.S.C.§ 12102(2). Major life activities may in-clude ‘‘caring for oneself, performing man-ual tasks, walking, seeing, hearing, speak-ing, breathing, learning,’’ and, pertinent tothis appeal, ‘‘working.’’ 29 C.F.R.§ 1630.2(i). An activity is ‘‘substantiallylimited’’ when an individual cannot per-

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75E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)

form the activity that an average person inthe general population could perform orfaces significant restrictions in the ‘‘condi-tion, manner, or duration under which theindividual can TTT perform [the] activity.’’29 C.F.R. § 1630.2(j)(i)-(ii). The activityof ‘‘working’’ is further defined by theregulations as follows:

With respect to the major life activity ofworking—(i) The term substantially limits meanssignificantly restricted in the ability toperform either a class of jobs or a broadrange of jobs in various classes as com-pared to the average person having com-parable training, skills and abilities.The inability to perform a single, partic-ular job does not constitute a substantiallimitation in the major life activity ofworking.

29 C.F.R. § 1630.2(j)(3)(i). Thus, unlessHunt perceived the applicants in questionas limited from a class of jobs or a broadrange of jobs, the EEOC’s claim must fail.

1. Driving 40–Ton, 18–Wheel TrucksOver Long Distances for ExtendedPeriods is Neither a ‘‘Class of Job’’nor a ‘‘Broad Range of Jobs’’ Withinthe Meaning of the ADA.

[3] Driving freight-carrying tractor-trailer trucks over long distances for ex-tended periods of time is neither a ‘‘classof jobs’’ nor a ‘‘broad range of jobs,’’ as theEEOC alleges, but rather a specific jobwith specific requirements. Such a posi-tion requires specific abilities, especiallythe ability to stay alert over long hoursunder difficult conditions. A Hunt OTRdriver’s alertness cannot flag. He or shemust be able to stay alert and withstandthe mesmerizing affect of driving an eigh-teen-wheel vehicle for hours at a stretch,sometimes at night, with continuous vibra-tion over long distances. Given these de-manding requirements, the fact that onemay not be able to perform the specific job

of a Hunt OTR driver does not mean thatone could not successfully engage in othertypes of truck driving, let alone in otherkinds of safety-sensitive work.

In Sutton, the Supreme Court consid-ered the claims of pilots who had beendenied positions as ‘‘global pilots’’ withUnited Airlines. The Supreme Court heldthat the position of ‘‘global pilot’’ was ‘‘asingle job’’ and, therefore, was not suffi-ciently broad to satisfy the ‘‘major lifeactivity requirement’’. Sutton, 527 U.S. at493, 119 S.Ct. 2139. The Court reasonedthat ‘‘there are a number of other positionsutilizing petitioners’ skills, such as regionalpilot and pilot instructor to name a few.’’Id.

Like the limitation that United Airlinesplaced on global airline pilots in Sutton,the limitation that Hunt placed on appli-cants for the position of OTR driver was alimitation on a particular job within a larg-er group of jobs, and not a substantiallimitation on working. See Baulos v.Roadway Express, Inc., 139 F.3d 1147,-1154 (7th Cir.1998) (driving sleeper trucksis a specific job within the broader class oftruck driving jobs). Therefore, the appli-cants’ perceived unsuitability for the posi-tion of OTR driver cannot be characterizedas a perceived inability to perform a broadrange or a class of jobs. This is true evenassuming that truck-driving in general is asufficiently broad range or class of jobs toconstitute a ‘‘major life activity’’, an issuewe do not need to reach. As the dissentreadily acknowledges, persons licensed todrive the types of vehicles driven by HuntOTR 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 per-ceived applicants rejected under the DRLas substantially limited in a major life ac-

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76 321 FEDERAL REPORTER, 3d SERIES

tivity, the EEOC must show that Huntviewed such applicants as limited from abroader range or class of jobs than merelyOTR positions at Hunt.

2. The Evidence Is Not Sufficient ToSupport a Reasonable Inference thatHunt Regarded Applicants RejectedUnder the ‘‘Not Permitted’’ and‘‘Unsafe Effects’’ Categories as Sub-stantially Limited in a Broad Rangeor Class of Jobs.

[4] The EEOC argues that Hunt re-garded applicants who took particularmedications as incapable of driving trucks,which according to the EEOC constituteseither a ‘‘class of jobs’’ or a ‘‘broad rangeof jobs.’’ The record, however, only showsthat Hunt saw the applicants as unfit toperform a job for which they were seekingapplicants: long-distance, freight-carrying,tractor-trailer driving. The SupremeCourt has clearly stated that ‘‘[t]he inabili-ty to perform a single, particular job,’’however, ‘‘does not constitute a substantiallimitation in the major life activity of work-ing.’’ Sutton v. United Air Lines, Inc.,527 U.S. 471, 493, 119 S.Ct. 2139, 144L.Ed.2d 450 (1999). Here, Hunt dismissedthe applicants as unable to meet Hunt’sown safety requirements—requirementsabove and beyond the DOT’s industry-widestandards and unique from the require-ments of other trucking companies. SeeCompl. ¶ 8c; Def.’s Statement of MaterialFacts at 7; see also Adair Dep. at 85–86;J.B. Hunt Transp., Inc., 128 F.Supp.2d at129 n. 17 (noting drivers were employed byother trucking companies while takingsame medications).

The evidence suggests that Hunt foundthe applicants unsuited for long-distancedriving of Hunt’s 40–ton trucks on irregu-lar, stressful schedules, but does not indi-cate that Hunt perceived the applicants asmore broadly limited. The fact that Hunt

did not have another, less demanding driv-ing position to offer the candidates doesnot indicate that Hunt perceived the candi-dates as being unqualified for any drivingposition at all. Giordano v. City of NewYork, 274 F.3d 740, 748–50 (2d Cir.2001)(finding inability of the New York PoliceDepartment to offer light duty, non-patrolposition to officer taking anti-coagulationmedication did not demonstrate that offi-cer was substantially limited in workingwhere other security and law enforcementjobs in the area had such positions); seealso Baulos v. Roadway Express Inc., 139F.3d 1147, 1154 (2d Cir.1998) (concludingthat truck drivers unable to operate sleep-er trucks did not show that they wereregarded as disabled where employer didnot offer them less demanding, non-over-night positions that were taken by driverswith more seniority).

[5] EEOC references a few commentsfrom Hunt’s evaluators to candidates sug-gesting that certain candidates were notsuited to any form of professional driving.These comments, made by people otherthan the ultimate hiring authorities, simplyare not sufficient to indicate that Huntthought the applicants were more broadlylimited given the heightened nature ofHunt’s standards and the fact that Huntdid hire some applicants on DRL medi-cations. Although a few evaluators’ com-ments could be more broadly interpreted,there is no evidence that Hunt’s reviewers,relying on Hunt’s own DRL and drug liststo make a judgment on qualification for aposition at Hunt, intended to make anevaluation beyond Hunt’s specific guide-lines. Nor is there sufficient evidence tosupport a finding that Hunt viewed thedriving limitation as extending beyondHunt. Furthermore, as the Supreme Courthas clearly stated, ‘‘[i]t is not enough tosay that if the physical criteria of a singleemployer were imputed to all similar em-

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77E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)

ployers one would be regarded as substan-tially limited in the major life activity ofworking only as a result of this imputa-tion.’’ Sutton, 527 U.S. at 493, 119 S.Ct.2139.

[6] In short, EEOC demonstrated onlythat Hunt refused to hire certain appli-cants according to its own hiring criteria;however, a finding of perceived disabilitymay not rest merely on a single employer’sfailure to hire a candidate. Baulos, 139F.3d at 1154 (‘‘Courts have uniformly heldthat an employer does not necessarily re-gard an employee as handicapped simplyby finding the employee to be incapable ofsatisfying the singular demands of a par-ticular job.’’ (internal citation omitted)).

[7] Thus, we affirm the district court’sgrant of summary judgment in favor ofHunt as to the applicants rejected under atleast the ‘‘Not Permitted’’ and ‘‘UnsafeEffects’’ categories because EEOC hasfailed to demonstrate that Hunt mistaken-ly perceived that the rejected applicants’had impairments that substantially limiteda ‘‘major life activity.’’ Accordingly,EEOC has failed to show that the appli-cants were ‘‘disabled’’ within the meaningof the ADA. In so holding, we emphasizethat this Court will not presume a mistak-en assumption of disability based only on

an employer’s decision not to hire certaincandidates.

3. The Evidence Is Also Not SufficientTo Support a Reasonable Inferencethat Hunt Regarded Applicants Re-jected Under the ‘‘DisqualifyingCondition’’ and ‘‘Heart Condition’’Categories as Substantially Limitedin a Broad Range or Class of Jobs.

As noted above, two of the categories inthe DRL appear, at least superficially, torefer to the condition causing the relianceon a DRL drug, not merely the applicants’use of a DRL medication.4 Although theevidence suggests that these applicantswere, like those in the other categories,often told that they were disqualified onthe basis of the drug they were usingrather than on the basis of the conditionsupporting their use of the drug, we brief-ly consider whether applicants using drugsfrom these two categories warrant a differ-ent legal conclusion. We conclude thatthey do not.

[8] Individuals suffering from the con-ditions treated with the ‘‘Heart Condition’’or ‘‘Disqualifying Condition’’ drugs are po-tentially explicitly barred from truck driv-ing by 49 C.F.R. § 391.41.5 Hunt therefore

4. As noted in the discussion of the pertinentfacts, the DRL contained five categories ofdrugs: ‘‘Rule out Side Effects,’’ ‘‘Not Permit-ted,’’ ‘‘Unsafe Effects,’’ ‘‘Heart Condition,’’and ‘‘Disqualifying Condition.’’ The EEOCdoes not represent in this appeal any appli-cants rejected under the ‘‘Rule Out Side Ef-fects’’ category, thus removing that categoryfrom our consideration. J.B. Hunt Transp.,Inc., 128 F.Supp.2d at 122, n. 7.

5. Review of the DRL reveals that the label‘‘Disqualifying Condition’’ attached to drugstreating Parkinson’s Disease, serious arryth-mia, alcoholism, epilepsy, seizure, migraines,dementia, depression, schizophrenia, diabe-tes, severe arthritis, severe hypertension, opi-ate addiction, subarachnoid hemorrhage, ar-

tery occlusion, and severe headache, whilethe label ‘‘Heart Condition’’ attached to medi-cines treating heart failure, thrombosis, ede-ma, congestive heart failure, ischemia, andventric arrythmia. 49 C.F.R. § 391.41 ap-pears to exclude persons with all of theseconditions from driving a commercial vehiclewhere those conditions are likely to interferewith their ability to safely drive a commercialvehicle. 49 C.F.R. §§ 391.41(b)(3) (diabetes),391.41(b)(4) (‘‘myocardial infarction, anginapectoris, coronary insufficiency, thrombosis,or any other cardiovascular disease of a vari-ety known to be accompanied by syncope,dyspnea, collapse or congestive heart fail-ure’’), 391.41(b)(6) (high blood pressure),391.41(b)(7) (‘‘rheumatic, arthritic, orthope-dic, muscular, neuromuscular, or vascular

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78 321 FEDERAL REPORTER, 3d SERIES

potentially regarded applicants using thesedrugs as substantially limited not justfrom driving Hunt vehicles according tothe rules of the DRL and other companyregulations, but as prevented from drivinglegally for any commercial trucking com-pany. As with the other categories in theDRL, however, the restrictions on themedications labeled ‘‘Disqualifying Condi-tion’’ or ‘‘Heart Condition’’ were placed onapplicants taking the drug, not on appli-cants with the underlying condition itself.Even though in some cases, the company,under 49 C.F.R. § 391.41, could have cre-ated a policy excluding the applicant onthe basis of the underlying condition, thebasis for the exclusion from employmentwas the use of a listed drug, not anypotential ‘‘disability’’ created by the treat-ed disease.6

We conclude, therefore, that any claimsarising under the ‘‘Heart Condition’’ and‘‘Disqualifying Condition’’ categories arenot distinguishable from the claims underthe ‘‘Not Permitted’’ and ‘‘Unsafe Effects’’categories and so they must also fail.

V.

Although Hunt admittedly rejected theapplicants for its OTR driving positionsbecause of their use of certain prescriptionmedications, the EEOC cannot succeed inits ADA claim on behalf the rejected appli-cants. The record only shows that Huntregarded the applicants in question as ine-ligible for a specific position within Hunt,not that Hunt regarded them as ‘‘disabled’’within the meaning of the ADA. The appli-cants, through the EEOC, therefore do nothave a valid ADA claim.

For the reasons set forth above, thisCourt affirms the district court’s grant ofsummary judgment to defendant Hunt andits denial of the cross-motion by plaintiffEEOC.

The judgment of the district court isAFFIRMED.

SOTOMAYOR, Circuit Judge,dissenting.

This case is quite straightforward.Based upon a list of drugs and their poten-

disease’’), 391.41(b)(8) (epilepsy or ‘‘any othercondition which is likely to cause loss of con-sciousness’’), 391.41(b)(9) (‘‘mental, nervous,organic, or functional disease or psychiatricdisorder’’), 391.41(b)(12)(i) (controlled sub-stances), 391.41(b)(13) (alcoholism). ‘‘Mi-granes’’ or ‘‘severe headaches,’’ as ‘‘vascularheadache[s],’’ DORLAND’S ILLUSTRATEDMEDICAL DICTIONARY 1042 (28thed.1994), potentially fall within§ 391.41(b)(7)’s restriction on vascular dis-ease.

EEOC alleged that Hunt misinterpreted aDOT report cautioning about the effects ofdrugs used to treat heart conditions, claimingthat the report merely required individual as-sessment of each patient. The DOT subse-quently issued a report clarifying that the useof Coumadin, a anticoagulator previouslyquestioned, was not automatically disqualify-ing. J.B. Hunt Transp., Inc., 128 F.Supp.2dat 120 n. 3 (describing reports). According tothe DRL, however, Coumadin treats thrombo-sis, a condition specifically prohibited by the

current regulations. See 49 C.F.R.§ 391.41(b)(4).

6. For example, Amandtadine Hydrochloride,a drug to which the ‘‘Disqualifying Condi-tion’’ label attaches treats both Parkinson’sDisease and the flu. While an applicant tak-ing the drug for Parkinson’s might be dis-abled on the basis of the disease within themeaning of the ADA, an applicant using thedrug for the flu would not likely so qualify.Hunt, however, would have excluded eitherapplicant because of the drug usage. Fur-thermore, some ‘‘Disqualifying Condition’’drugs treat the same underlying diseases asdrugs given other labels. For example Zoloft,a drug used for treatment of, inter alia, de-pression, is listed as ‘‘Unsafe Effects,’’ whileProzac, also for depression, is listed as ‘‘Dis-qualifying Condition.’’ This further supportsthe idea that the drug, not the condition itself,was the true basis of Hunt’s hiring ban.

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79E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)

tial side effects compiled by David White-side, a Hunt employee with no medicaltraining, and a Medical Guidelines policydeveloped by Michael Gray, a former RedLobster cashier with no medical trainingwho was, nevertheless, Hunt’s Medical Ad-visor, Hunt determined that certain appli-cants were unfit to be truck drivers. TheEEOC has provided substantial evidencethat Hunt believed that these individualswere unfit to drive a truck, or, for thatmatter, to drive at all and were incapableof performing the broad class of jobs thatfall under the classification ‘‘truck driving.’’Based upon this showing, I would vacatethe district court’s grant of summary judg-ment and hold that there is a genuinedispute of material fact with respect towhether the EEOC has established a pri-ma facie case of disability discrimination.I therefore respectfully dissent.

I agree with the majority that the issuein this appeal is whether the applicantswere denied truck driving positions atHunt because of their perceived disabilitywithin the meaning of the ADA. Ignoringsignificant evidence that Hunt perceivedthe applicants as more broadly limited,however, the majority holds that theEEOC has only provided evidence thatHunt perceived the rejected applicants as‘‘ineligible for a specific position withinHunt.’’ Ante at 78. In doing so, the major-ity reasons that long haul trucking is not asufficiently broad class of jobs such that asubstantial limitation on an individual’sability to be a long haul trucker wouldimply that the individual was disabledwithin the meaning of the ADA. See anteat 75–76. The majority asserts that alimitation on an individual’s ability to be along haul truck driver does not substan-tially limit his or her ability to engage inthe major life activity of working, as manyother truck driving jobs are available forthese individuals. See ante at 75–76. Themajority does not, however, hold that

truck driving in general is such a specificclass of jobs that a substantial limitationon truck driving would fail to imply adisability; its holding relies solely upon aninappropriately narrow view that Huntperceived the applicants as limited only intheir ability to work as long haul truckersfor Hunt.

Contrary to the majority’s assertion, theEEOC has produced significant evidencethat Hunt regarded the applicants as sub-stantially limited in the major life activityof working as truck drivers in general. Anemployer perceives an employee to be sub-stantially limited in his or her ability towork if it believes the employee is:

significantly restricted in the ability toperform either a class of jobs or a broadrange of jobs in various classes as com-pared to the average person having com-parable training, skills and abilities.The inability to perform a single, partic-ular job does not constitute a substantiallimitation in the major life activity ofworking.

29 C.F.R. § 1630.2(j)(3)(i); see also Bart-lett v. N.Y. State Bd. of Law Exam’rs, 226F.3d 69, 82–83 (2d Cir.2000). Factors thatmay be considered under this standardinclude the geographical area to which anindividual has reasonable access; the num-ber and types of jobs utilizing similartraining, knowledge, skills or abilities asthe job from which the applicant has beendisqualified; and the number and types ofjobs not utilizing similar training, knowl-edge, skills or abilities from which theapplicant will also be disqualified. 29C.F.R. § 1630.2(j)(3)(ii).

If other jobs utilizing an individual’sskills are available, that person is not sub-stantially limited in a class of jobs, even ifthis alternate employment would not allowthe individual to showcase his or her spe-cial talents. Sutton v. United Air Lines,

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Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144L.Ed.2d 450 (1999). In Sutton, the Su-preme Court determined that plaintiffs ap-plying for positions as global airline pilotscould use their particular skills to obtainother piloting positions from which theywere not disqualified, so these plaintiffswere not regarded as being shut out froman entire occupational class. Id. at 492–93,119 S.Ct. 2139. In applying this rubric,the Second Circuit has found that practic-ing law is a broad occupational class, seeBartlett, 226 F.3d at 84, but that workingas a policeman is a specific position withinthe class of investigative or security jobs,see Giordano v. City of New York, 274F.3d 740, 749 (2d Cir.2001).

The EEOC has proffered evidence thatthe members of the plaintiff class haveundergone specialized driver training,earned commercial drivers’ licenses,passed road tests and received medicalcertifications pursuant to DOT regulations.The set of jobs that call for these qualifica-tions includes driving various types ofsmall and large trucks, including tractor-trailers, moving trucks, and cargo vans.See Office of Management & Budget, Stan-dard Occupational Classification Manual220 (2000), available at http://www.bls.gov/soc/soc v3d0.htm. The De-partment of Labor classifies truck drivingas a separate occupation within the overallcategory of ‘‘Transportation and MaterialMoving Occupations,’’ as does the Office ofManagement and Budget. Id. The De-partment of Labor estimated that in 2000there were more than 3.3 million jobs thatcame under the heading of ‘‘Truckdriverand Driver/Sales Workers.’’ 1 Bureau of

Labor Statistics, Occupational OutlookHandbook 577 (2002–03), available athttp://www.bls.gov/oco/pdf/ocos246.pdf.This evidence demonstrates that truckdriving is a general field of employmentrather than a specific position. AccordBaulos v. Roadway Express, Inc., 139F.3d 1147, 1154 (7th Cir.1998) (holdingthat driving a sleeper car is a specific jobwithin the class of truck drivers); Best v.Shell Oil Co., 107 F.3d 544, 548 (7th Cir.1997) (holding that truck driving is a classof jobs).

The majority does not reach the ques-tion whether truck driving is a class ofjobs. Instead, the majority argues thatHunt only dismissed the applicants be-cause ‘‘Hunt found the applicants unsuitedfor long-distance driving of Hunt’s 40–tontrucks on irregular, stressful schedules.’’Ante at 76. Such hyperbole is inapposite.Whether long haul trucking is, in fact,different from other types of truck drivingis not the central issue in this appeal;Hunt’s perception of the applicants as sub-stantially limited in their ability to drivetrucks, without further limitation to longhaul truck driving, is the central issue.

Beyond this basic misconception, themajority also misrepresents the record byasserting that the evidence ‘‘does not indi-cate that Hunt perceived the applicants asmore broadly limited.’’ Ante at 77. To thecontrary, the EEOC provided significantevidence that Hunt believed that the appli-cants were unfit to drive trucks. Numer-ous drugs were listed on the DRL as ‘‘NotPermitted,’’ 2 reflecting a belief that the

1. Driver/Sales Workers drive trucks and workas sales agents for the goods they haul; bothof these aspects are integral to their jobs. SeeOccupational Outlook Handbook 576–77(2002–03).

2. The majority discusses the categories ‘‘NotPermitted’’ and ‘‘Unsafe Effects’’ separately

from the two condition-based categories,‘‘Disqualifying Condition’’ and ‘‘Heart Condi-tion.’’ Ultimately, the majority finds no legaldistinction between the ‘‘condition’’ catego-ries and the others. See ante at 78.

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81E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)

applicant was prohibited by DOT regula-tions from driving a commercial vehiclewhile taking that particular medication.Dr. Cooper, Hunt’s physician consultant,testified with respect to one applicant thathe did not feel it was ‘‘in this patient’s bestinterest to pursue this profession.’’ Inter-view records show that the company be-lieved another applicant ‘‘would most likelyhave difficulty functioning in the lifestyleof a trucker.’’ Similarly, Dr. Cooper indi-cated with regard to another applicant thather ‘‘problems with sleep and concentra-tion under stress are not very compatiblewith the lifestyle expected of a driver.’’Applicant Joseph Lisa was told by a Hunt

employee that he would ‘‘never drive foranybody,’’ and numerous other applicantswere told that the medications they weretaking made it unsafe for them to drive atruck, or drive in general. See, e.g., CurtinDecl., Exh. 13 (reviewer told applicant‘‘that she could not be on [the medication]and drive [because] it can cause unsafeaffect [sic]’’); id. (reviewer told applicant‘‘that he could not drive[ ] while on thismedication’’); id. (reviewer told applicant‘‘that she cannot be on [the medication]and drive’’); Curtin Decl., Exh. 20 (drug is‘‘not permitted for driving’’); id. (‘‘[b]othdrugs are not approved for driving’’); id.(reviewer ‘‘informed applicant that he can-

I agree that all four categories of medi-cations on the DRL at issue here should betreated identically. I disagree, however,with the majority’s statement that ‘‘the basisfor the exclusion from employment was theuse of a listed drug, not any potential ‘dis-ability’ created by the treated disease.’’ Anteat 77–78. The EEOC has produced signifi-cant evidence that demonstrates the link be-tween the drug categories and potential un-derlying conditions. For example, one ofHunt’s interviewers noted that the ‘‘applicantdid not indicate the reason he is taking [themedication]. [N]eed to verify why he is onthis medication.’’ Similar comments weremade by reviewers with respect to applicantstaking medications in each of Hunt’s catego-ries. See, e.g., Curtin Decl., Exh. 18 (appli-cant needs to provide ‘‘headach [sic] releaseTTT [and a] statement that she is not taking[the medication] for depression’’) (‘‘Not Per-mitted’’ category); id. (‘‘Sent to Brenda forreview on cardiovasular [sic] condition’’)(‘‘Not Permitted’’ category); Curtin Decl.,Exh. 20 (‘‘the diagnosis and severity of hercondition for which she takes the medicationis considered disqualifying’’) (‘‘Unsafe Ef-fects’’ category); id. (applicant ‘‘will need tocomplete his treatments TTT and send in allrecords when his condition is resolved’’)(‘‘Unsafe Effects’’ category); Curtin Decl.,Exhs. 23, 25 (applicant needs to ‘‘provide astatment [sic] that TTT his condition is finew/out the meds’’) (‘‘Disqualifying Condition’’or ‘‘Heart Condition’’ category); id. (Hunt‘‘need[ed] all records on [applicant’s] condi-tion’’) (‘‘Disqualifying Condition’’ or ‘‘Heart

Condition’’ category). In addition, Hunt’sMedical Guidelines relating to mental andpsychological conditions required that in or-der to qualify for a job, an applicant takingmedication for depression must remain offthe medication for thirty days and submit aletter from a doctor stating that he or she nolonger suffers from the underlying condition.Contrary to the majority’s assertion, this evi-dence provides a direct causal link betweenthe applicants’ underlying conditions andHunt’s perception of the applicants as sub-stantially limited in their ability to work astruck drivers.

To make a further distinction that it ulti-mately finds insignificant, the majority assertsthat ‘‘[i]ndividuals suffering from the condi-tions treated with the ‘Heart Condition’ or‘Disqualifying Condition’ drugs are potentiallyexplicitly barred from truck driving by 49C.F.R. § 391.41.’’ Ante at 76–77 & n. 5 Manyof the conditions listed in this regulation onlydisqualify an individual if the condition is‘‘likely to interfere with his/her ability to con-trol and drive a commercial motor vehiclesafely,’’ 49 C.F.R. § 391.41(b)(5), or otherwisesuggest that an individualized determinationof potential safety concerns is required. Seeid. § 391.41(b)(6)-(12). In relying on theseregulations to support Hunt’s policy, the ma-jority ignores the crucial difference betweenindividualized determinations of driver safetyand Hunt’s explicit policy to create a per sebar from truck driving with respect to theseindividuals. Hunt’s policy simply assumes,without justification, that these individualsare unfit to drive trucks.

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82 321 FEDERAL REPORTER, 3d SERIES

not take [the medication] and drive’’);Curtin Decl., Exhs. 23, 25 (reviewer ‘‘in-formed appl[icant] that he could not takethe med[ication] on [the] truck’’); CurtinDecl., Adair Depo. (representative told ap-plicant ‘‘it’s illegal to drive a truck withthat [medication]’’); Curtin Decl., ManningDepo. (representative told applicant ‘‘itwas illegal for a driver to drive while onthis medication’’). The EEOC has provid-ed sufficient evidence to create a factualissue whether Hunt perceived the appli-cants as broadly limited in their ability towork as a truck driver.

The majority explains this evidence bystating:

Although a few evaluators’ commentscould be more broadly interpreted, thereis no evidence that Hunt’s reviewers,relying on Hunt’s own DRL and druglists to make a judgment on qualificationfor a position at Hunt, intended to makean evaluation beyond Hunt’s specificguidelines.

Ante at 76–77. In reviewing a grant ofsummary judgment, however, we do notrefuse to credit a broad, but reasonable,interpretation of the evidence. Giordano,274 F.3d at 749–50. Even if this were thestandard, Hunt’s reviewers stated that oneapplicant would ‘‘never drive for anybody,’’and made similar statements about manyother applicants; it is difficult to imagine aclearer statement that the reviewers in-tended to say that the applicants were, infact, substantially limited in their ability towork as a truck driver for any company.

The majority asserts that becauseHunt’s reviewers were not the ultimatedecision makers, the comments ‘‘simplyare not sufficient to indicate that Huntthought the applicants were more broadlylimited.’’ Ante at 76–77. Again, this is amatter for the factfinder to decide.Hunt’s own employees stated on severaloccasions that applicants were unfit to

drive; a factfinder reasonably could im-pute these statements to Hunt, even ifthese employees were not the ultimate de-cision makers. Hunt proffers no evidencethat these unidentified ‘‘ultimate hiring au-thorities’’ did not share the reviewers’ per-ceptions or rely upon their statementsabout the applicants’ limitations. Indeed,Hunt does not argue otherwise; it simplyargues that its employees’ statements im-plicitly refer only to jobs at Hunt. A fact-finder is certainly allowed to determinewhether the statement that an applicantwould ‘‘never drive for anybody’’ implicitlyrefers only to jobs at Hunt; it is not,however, this Court’s job to do so. Inreviewing whether summary judgment isappropriate, this Court does not make fac-tual determinations or refuse to credit le-gitimate inferences based upon the evi-dence presented, but views the evidence inthe light most favorable to the nonmovingparty. See Giordano, 274 F.3d at 746.

Hunt also argues that the statements ofDr. Cooper should not be imputed to it.The EEOC provides significant evidencethat Hunt relied on Dr. Cooper’s advice,including, for example, a reviewer’s state-ment that the applicant was ‘‘disqualifiedper Dr. Cooper.’’ This suffices to providea direct link between Dr. Cooper’s opin-ions regarding applicants and Hunt’s viewof the applicants as disabled.

Finally, the majority’s argument thatHunt’s policy should not be imputed toother companies in determining whetherthe applicants were perceived as disabledis immaterial. Contrary to the majority’sassertion, this is not a case in which thepotential imputation of Hunt’s policy toother companies would result in the appli-cants being regarded as ‘‘substantially lim-ited in the major life activity of workingonly as a result of this imputation.’’ Sut-ton, 527 U.S. at 493, 119 S.Ct. 2139. It isHunt’s explicit statement that it believed

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83CICIO v. DOESCite as 321 F.3d 83 (2nd Cir. 2003)

applicants to be unfit to drive a truck thatsupports Hunt’s perception of these indi-viduals as substantially limited in theirability to drive a truck; no potential impu-tation is required. Thus, the EEOC hasprovided sufficient evidence that a factfin-der could reasonably conclude that Huntregarded the rejected applicants as sub-stantially limited in the major life activityof working, because Hunt regarded themas unfit to be truck drivers.

CONCLUSION

Because I find ample support in therecord for the assertion that Hunt regard-ed the applicants as d substantially limitedin the major life activity of working, andthus, the applicants were disabled withinthe meaning of the ADA, I respectfullydissent.

,

Bonnie CICIO, individually and as Ad-ministratrix of the Estate of Car-

mine 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.

Widow, on behalf of herself and herlate husband’s estate, brought state court

suit against plan administrator for employ-ee benefits plan, its medical director, andothers, alleging state law claims arisingout of decision to deny preauthorization formedical procedure recommended by treat-ing physician. Defendants removed actionand moved to dismiss for failure to stateclaim. Widow moved to remand. The Unit-ed States District Court for the EasternDistrict of New York, Joanna Seybert, J.,208 F.Supp.2d 288, adopting the reportand recommendation of United StatesMagistrate Judge E. Thomas Boyle, grant-ed motion to dismiss on ground of preemp-tion under the Employee Retirement In-come Security Act (ERISA), and widowappealed. The Court of Appeals, Sack, Cir-cuit Judge, held that: (1) negligent delayand misrepresentation claims were remov-able under complete preemption doctrine;(2) court had supplemental jurisdictionover medical malpractice claim; (3) negli-gent delay and misrepresentation claimswere subject to dismissal as conflictpreempted; and (4) on issue of first im-pression, state law medical malpracticeclaim brought with respect to a medicaldecision made in the course of prospectiveutilization review by a managed care orga-nization or health insurer is not preemptedunder ERISA.

Affirmed in part, vacated in part, andremanded.

Calabresi, Circuit Judge, filed an opin-ion dissenting in part.

1. Removal of Cases O107(9)

District court’s denial of a motion toremand is reviewed de novo.

2. Federal Courts O776

District court’s decision to grant amotion to dismiss for failure to state aclaim is reviewed de novo. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.