UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


DUNCAN, JIMMY L.

v.

WMATA


99-7073a

D.C. Cir. 2000


*	*	*


Karen LeCraft Henderson, Circuit Judge: Washington  Metropolitan Area
Transit Authority (WMATA) challenges  the district court's denial of
judgment as a matter of law on  the claims Jimmy Duncan brought under
the Americans with  Disabilities Act (ADA), 42 U.S.C. ss 12101 et seq.
(1994), and  for which a jury returned a verdict awarding Duncan
$250,000  in compensatory damages: $125,000 for the "decision not to 
reasonably accommodate [him]" and $125,000 "as a result of  [WMATA's]
decision to terminate [him]." Judgment on the  Verdict, p p 7, 8.
WMATA also challenges two post-trial  orders granting attorney's fees
and costs and one post-trial  order granting backpay and prejudgment


We conclude that Duncan failed to establish he was dis- abled and thus
protected under the ADA and, therefore,  reverse the district court's
order denying judgment as a  matter of law. We also vacate the jury
verdict and the post- trial orders noted above.


I.


Duncan, forty-seven years old at the time of trial, attended  high
school and trade school in electronics but completed  neither. He has
an employment history of unskilled labor  positions, many requiring
heavy lifting. He began working  for WMATA in May 1986 as a custodian,
a position that  required him to lift between 75 and 100 pounds.
Duncan  then became an Automated Fare Collector (AFC) parts run- ner
in November 1991. He testified that 30 pounds was the  heaviest
lifting required and his testimony was corroborated  by that of a
co-worker. In early December 1992, as a result  of another employee's
grievance, Duncan was transferred  involuntarily to the
Elevator/Escalator branch (ELES) into a  position requiring heavy


From 1989 to 1992 Duncan sustained several back injuries  including an
off-duty automobile accident in February 1992.  Some of the injuries
required a number of weeks away from  work or on light duty but in
each instance Duncan was able to  return to work without restriction.
On December 16, 1992,  working his third night in ELES, Duncan
re-injured his back.  Duncan reported the injury to his supervisor,
John Weston,  who referred him to WMATA's Associate Medical Director, 
Dr. Mary O'Donnell. Duncan also saw his orthopaedist, Dr.  Harvey N.
Mininberg. At that time, Dr. Mininberg limited  Duncan's lifting to no
more than 20 pounds. See Joint  Appendix (JA) 60. After another visit
in late January 1993,  Dr. Mininberg confirmed the restriction. See


The medical restriction precluded Duncan from returning  to his job in
ELES. Weston told Duncan that no light duty  position was available in
ELES and Duncan was placed on  leave without pay. Between December
1992 and August 1993  Duncan periodically contacted Weston and
Weston's supervi- sor to inquire about light-duty work. Duncan also
applied for  two vacancies in his former AFC position, one in March
and  the other in July. Apparently Duncan's first application was  not
forwarded to the decisionmaker, Charles Beuttner, but  the second was.
Beuttner declined to interview Duncan for  the second position after
learning that Duncan was in the  process of being terminated, see
infra, and was "physically  disqualified." JA 307-08.


In mid-August 1993 Duncan received a letter from Weston  requesting
that he schedule an appointment with Dr. O'Don- nell and take with him
all medical records dating from  February 1993 relevant to
restrictions on duty as a parts  runner, including a statement from
his treating physician  regarding his current condition. Duncan
returned to Dr.  Mininberg who referred him to a neurologist he had
seen  before, Dr. Najmaldin Karim. Dr. Karim was out of town  until
September 1993. At his August 23 appointment with  Dr. O'Donnell, she
was annoyed by his failure to bring the  requested information, told
him to leave and said that he  likely would lose his job. Ultimately,
Dr. Karim issued the  requested letter of evaluation on September 10,


letter stated that Duncan could not perform heavy lifting but  could
work in the AFC position. Believing WMATA already  had decided to fire
him, however, Duncan never submitted  the letter to WMATA. Weston had
drafted a letter of  termination on August 31, citing failure to
respond to re- quests from WMATA's medical office but the letter was
not  sent until October 7, 1993.


Due to his impairment, Duncan could not perform any of  the jobs he had
had before being employed by WMATA. He  inquired about some truck
driving positions and eventually  acquired a light-duty, part-time
position at Hertz Corporation  where he earned less money than he had
earned with  WMATA.


II.


We review de novo the trial court's denial of a motion for  judgment as
a matter of law or, in the alternative, for a new  trial. See Curry v.
District of Columbia, 195 F.3d 654, 658- 59 (D.C. Cir. 1999). We will
not disturb a jury verdict  "unless the evidence and all reasonable
inferences that can be  drawn therefrom are so one-sided that
reasonable men and  women could not disagree on the verdict." Id. at
659 (quot- ing Smith v. Washington Sheraton Corp., 135 F.3d 779, 782 
(D.C. Cir. 1998)). Evidence supporting the verdict, however,  must be
"more than merely colorable; it must be significantly  probative." Id.
(quoting Smith, 135 F.3d at 782).


In an ADA case with no direct evidence of discrimination  and where the
defendant denies that its decisions were moti- vated by the
plaintiff's disability, this court uses the familiar  burden-shifting
framework set out in McDonnell Douglas  Corp. v. Green, 411 U.S. 792
(1973). See Marshall v. Federal  Express Corp., 130 F.3d 1095, 1099
(D.C. Cir. 1997). Under  that framework, an ADA plaintiff must prove
that "he had a  disability within the meaning of the ADA, that he was
'quali- fied' for the position with or without a reasonable accommoda-
tion, and that he suffered an adverse employment action  because of
his disability." Swanks v. WMATA, 179 F.3d 929,  934 (D.C. Cir. 1999).
Thus "the threshold issue is whether 


plaintiff had a 'disability.' " E.g., Weber v. Strippit, Inc., 186 
F.3d 907, 912 (8th Cir. 1999); accord Smith v. Midline Brake,  Inc.,
180 F.3d 1154, 1161 (10th Cir. 1999).


The ADA defines a "disability" as "a physical or mental  impairment
that substantially limits one or more of the major  life activities of
[an] individual."1 42 U.S.C. s 12102(2)(A).  In analyzing whether a
plaintiff has established a disability  under this provision, the
United States Supreme Court fol- lows three steps: (1) it considers
whether the plaintiff's  condition was a physical impairment; (2) it
identifies the life  activity upon which plaintiff relies and
determines whether it  constitutes a major life activity under the
ADA; and (3) it  decides whether the impairment substantially limited
the  major life activity. See Bragdon v. Abbott, 524 U.S. 624, 631 
(1998). The parties to this appeal agree that Duncan's degen- erative
disc disease was a physical impairment and that  "working" is the
activity involved and that it is a major life  activity under the ADA.
See, e.g., Brief of Appellant, at 16;  Brief of Appellee, at 15-19.
Therefore, the issue is whether  Duncan's back impairment
substantially limited his ability to  work. The Supreme Court recently
considered what "sub- stantially limits" means in the context of one's
ability to work  in Sutton v. United Air Lines, Inc., 119 S. Ct. 2139,
2150-51  (1999). The Court first noted that the term "substantial[ ]" 
suggests "considerable" or "specified to a large degree." 119  S. Ct.
at 2150. It noted the definition of "substantially limits"  as "unable
to perform" or "significantly restricted" contained  in the
regulations of the Equal Employment Opportunity  Commission (EEOC).
Id. at 2150-51 (quoting 29 C.F.R.  ss 1630.2(j)(1)(i), (ii) (1998)).
The Court then clarified what a  plaintiff must show to demonstrate
that an impairment sub- stantially limited his ability to work:


When the major life activity under consideration is that  of working,
the statutory phrase "substantially limits" 




__________

n 1 The ADA also protects individuals who have "a record of such  an
impairment" and those whose employers "regard[ ] as having  such an
impairment." 42 U.S.C. s 12102(2). Duncan makes no  claim under either
alternative approach.


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


Id. at 2151 (emphasis added). The Sutton Court stressed  that "whether
a person has a disability under the ADA is an  individualized
inquiry," id. at 2147 (citing Bragdon, 524 U.S.  624), and noted
several factors courts "should consider" when  making this
determination, including the accessible geograph- ical area and the
number of similar jobs within that area from  which the individual
also is disqualified. Id. at 2151. Ulti- mately in Sutton, the Court
held that the plaintiffs' disqualifi- cations from their current jobs
due to impairment did not  establish that they were substantially
limited in their ability  to work, particularly where other jobs
utilizing their skills  were available to them. See id.


Claiming he presented evidence sufficient to sustain the  jury verdict,
Duncan points to the testimony of Drs. Minin- berg and Karim that his
degenerative disc disease was a  permanent condition necessitating a
permanent restriction on  lifting, as well as his educational
background, lack of skills,  lack of experience outside heavy labor
and inability to find  similar employment. Duncan also cites the
EEOC's interpre- tive guidelines which the Supreme Court noted in
Sutton and  which provide in part:


[A]n individual does not have to be totally unable to work  in order to
be considered substantially limited in the  major life activity of
working. An individual is substan- tially limited in working if the
individual is significantly  restricted in the ability to perform a
class of jobs or a  broad range of jobs in various classes, when
compared  with the ability of the average person with comparable 


qualifications to perform those same jobs. For example,  an individual
who has a back condition that prevents  the individual from performing
any heavy labor job  would be substantially limited in the major life
activity  of working because the individual's impairment elimi- nates
his or her ability to perform a class of jobs. This  would be so even
if the individual were able to perform  jobs in another class, e.g.,
the class of semi-skilled jobs.


29 C.F.R. Pt. 1630.2(j), App. (emphasis added).


WMATA insists that Duncan failed to prove his degenera- tive disc
disease substantially impaired his ability to work.  While conceding
that Duncan, through medical testimony,  established a lifting
restriction of approximately 20 pounds,2  WMATA argues he did not
establish, as he must, that he was  thereby disqualified from a "broad
class of jobs" as Sutton  instructs. WMATA cites Duncan's failure to
proffer expert  testimony from a vocational rehabilitation specialist
and testi- mony or statistical evidence regarding the numbers of jobs 
from which he was disqualified. Other than relying on his  limited
educational background and work experience, Duncan  offers only his
testimony that he inquired about some truck  driving positions.


Other circuits have addressed claims involving arguments  similar to
Duncan's and have found the claims faulty for lack  of evidence
regarding the jobs the plaintiffs' impairments  preclude them from
performing.3 In Colwell v. Suffolk Coun-




__________

n 2 Dr. Karim's September 1993 evaluation, which Duncan did not  submit
to WMATA, and the testimony of both doctors at trial  indicated that
the previous 20-pound restriction was a good guide- line but that
Duncan could also lift somewhat heavier objects.


3 The dissent cites cases from other circuits finding triable issues 
of fact on records arguably similar to the record here. Most of  those
cases predate Sutton, however. See Diss. Op. at 8-11. The  one case
the dissent cites which was decided after Sutton, Welling- ton v. Lyon
County School District, 187 F.3d 1150 (9th Cir.1999),  did not cite
Sutton. A later opinion from that circuit, Broussard v.  University of
California, 192 F.3d 1252 (9th Cir.1999), does cite  Sutton and is
consistent with our resolution here. In Broussard 


ty Police Department, 158 F.3d 635, 644-45 (2d Cir. 1998), the  Second
Circuit held that the plaintiffs, who complained of  limitations
resulting from back injuries, failed to show they  were significantly
restricted from working in a class or broad  range of jobs. With
regard to one plaintiff, the court said  that "[w]ithout specific
evidence about the kinds of jobs from  which [an] impaired individual
is disqualified, the jury could  not perform the careful analysis that
is necessary to deter- mine that [plaintiff] was substantially limited
in his ability to  work." 158 F.3d at 645 (internal quotation marks
omitted).  Accord Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207
(8th  Cir. 1997). Similarly, in Bolton v. Scrivener, Inc., 36 F.3d 939
 (10th Cir. 1994), the court examined the medical evidence  tending to
establish that the plaintiff suffered from a perma- nent partial
disability but held it insufficient. Noting that  such evidence "does
not address [plaintiff's] vocational train- ing, the geographical area
to which he has access, or the  number and type of jobs demanding
similar training from  which [he] would also be disqualified," the
Tenth Circuit  found the medical evidence relevant to the nature,
severity,  duration and impact of the injury but insufficient to show
how  plaintiff's ability to perform a class or broad range of jobs 
was affected. Bolton, 36 F.3d at 944. See also Muller v.  Costello,
187 F.3d 298, 313 (2d Cir. 1999) (plaintiff's failure to  present
evidence that he was precluded from jobs other than  correctional
officer in his geographic area and plaintiff's  insistence that his




__________

n the court stated that surviving a motion for summary judgment 
"require[s] at least some evidence from which one might infer that 
[plaintiff] faced 'significant restrictions' in her ability to meet
the  requirements of other jobs." Id. at 1259 (quoting Davidson v. 
Midelfort Clinic, Ltd., 133 F.3d 499, 507 (7th Cir.1998)). Accord-
ingly, the court declared that the existence of a genuine issue of
fact  turned on its evaluation of the declaration of a vocational
rehabilita- tion specialist, which was "the only evidence which might
show that  [plaintiff] is barred from significant percentages of
available em- ployment in the [geographical] area" because of her
impairment.  192 F.2d at 1257. In the end, the court found that the
declaration  lacked a medical foundation and affirmed summary judgment


officer "compelled" holding of insufficient evidence of substan- tial
limitation on major life activity of working).


Several cases involve a plaintiff with a limitation similar to 
Duncan's. In Thompson v. Holy Family Hospital, 121 F.3d  537 (9th Cir.
1997), the Ninth Circuit addressed a lifting  restriction of no more
than 25 pounds on a regular basis and  more only rarely. The court
found the plaintiff failed to  prove a substantial limitation despite
having established the  lifting restriction: "[Plaintiff] points to no
evidence that the  restrictions ... preclude her from engaging in an
entire class  of jobs. Nor does she offer the information relevant to
this  particularized determination." 121 F.3d at 540. The Thomp- son
court also cited decisions from other circuits finding  similar
lifting restrictions not substantially limiting. See id.  (citing
Williams v. Channel Master Satellite Sys., Inc., 101  F.3d 346, 349
(4th Cir. 1996) (25-pound lifting limitation, as  matter of law, "does
not constitute a significant restriction on  one's ability to lift,
work, or perform any other major life  activity"); Aucutt v. Six Flags
Over Mid-America, Inc., 85  F.3d 1311, 1319 (8th Cir. 1996) (25-pound
lifting restriction  did not substantially limit any major life
activities); Ray v.  Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996)
(plaintiff not  substantially impaired by limitation on heavy lifting
where he  otherwise could lift and reach)); see also Snow, 128 F.3d at
 1207 ("[A] general lifting restriction imposed by a physician, 
without more, is insufficient to constitute a disability within  the


Duncan attempts to distinguish himself from the plaintiffs  in the
cases above with the claim that he established substan- tial
limitation by showing he has a limited educational back- ground, is
unskilled and has performed only jobs requiring  heavy lifting.
Duncan's third distinguishing factor deserves  little credence in
light of his experience as an AFC parts  runner, a position that
requires no heavy lifting (and that he  claims he is able to perform
without assistance). On the  whole, however, Duncan simply offers no
evidence we can  weigh in using the factors the Supreme Court tells us
to use.  The evidence he does offer is his testimony that he inquired 
about some truck driving positions, see JA 136-38, but he 


could name no other kind of job he investigated as part of his  effort
to find employment. See id. 138; see also Sutton, 119  S. Ct. at 2151
("If jobs utilizing an individual's skills (but  perhaps not his or
her unique talents) are available, one is not  precluded from a
substantial class of jobs.").


In short, Duncan completed only half of the puzzle. He  established
that he had an impairment that may have sub- stantially limited his
ability to work but he failed to show that  his impairment in fact did
substantially limit his ability to  work. Duncan relied on his limited
educational background  and the fact that most of his earlier
unskilled work involved  heavy lifting which he could no longer
perform. Duncan,  however, did not demonstrate what jobs were
available to  unskilled workers in his geographical area and thus
could not  show that his impairment precluded him from performing 
those jobs.4 Duncan's limited "search" for another job hardly 




__________

n 4 We reject the example included in the EEOC interpretive  guidelines
regarding an individual with a back condition preventing  him from
performing heavy labor because it is at odds with Sutton.  Guiding our
consideration--and rejection--of the interpretive  guidelines found at
29 C.F.R. Pt. 1630.2(j), App., is the Supreme  Court's acknowledgment
that "[n]o agency ... has been given  authority to issue regulations
implementing the generally applicable  provisions of the ADA," Sutton,
119 S. Ct. at 2145 (citations  omitted), coupled with its decision not
to reach the issue of what  deference, if any, courts owe the EEOC
regulations. See id.  ("Because both parties accept these regulations
as valid, and deter- mining their validity is not necessary to decide
this case, we have no  occasion to consider what deference they are
due, if any."). Al- though we defer to EEOC regulations where
appropriate, see, e.g.,  Bell v. Brown, 557 F.2d 849, 855 (D.C. Cir.
1977) ("[A]n administra- tive interpretation of a statute by an agency
entrusted with its  administration commands great deference in the
courts."), we de- cline to do so with its interpretive guidelines
where, as here, they  lead to a result contrary to the one Supreme
Court precedent leads  to. See Ansonia Bd. of Educ. v. Philbrook, 479
U.S. 60, 70 n.6  (1986) ("EEOC guidelines are properly accorded less
weight than  administrative regulations declared by Congress to have
the force  of law."); see generally Skidmore v. Swift & Co., 323 U.S.
134  (1944) (weight of agency's interpretation of statute "will depend


informs us what positions were generally available in his  geographic
area for unskilled workers, much less for workers  with a lifting
restriction like his. Not only have our sister  circuits required this
type of evidence but the Supreme Court  has told lower courts to
consider these factors when making  individualized determinations of
disability. See Sutton, 119  S. Ct. at 2151. The evidence Duncan
offered to establish that  his impairment substantially limited his
ability to work is no  more than "merely colorable" and it is not
significantly proba- tive. Curry v. District of Columbia, 195 F.3d
654, 659 (D.C.  Cir. 1999). Therefore, we find the evidence
insufficient to  support the jury's necessary finding that Duncan was
a  person with a disability under the ADA. Accordingly, Dun- can's


For the foregoing reasons, the order of March 26, 1998  denying WMATA's
motion for judgment as a matter of law is  reversed. The judgment on
the jury verdict entered May 29,  1997 is vacated, as are the district
court's post-trial orders  awarding attorney's fees and costs and
granting Duncan  backpay and prejudgment interest.


So ordered.




__________

n upon the thoroughness evident in its consideration, the validity of 
its reasoning, its consistency with ... later pronouncements") 
(emphasis added). We therefore decline to follow the EEOC's 
guidelines here.


Edwards, Chief Judge, dissenting: On the record at hand,  there was
sufficient evidence for the jury to conclude that Mr.  Duncan was
disabled under the Americans with Disabilities  Act ("ADA"). The
majority opinion proposes a standard of  proof in ADA cases that is
unprecedented and unsupported.  The case law from our sister circuits
does not support the  majority's position. And recent Supreme Court
decisions  construing the ADA cannot be stretched to accommodate the 
majority's rigid formulation of a plaintiff's burden of proof  under
the statute. The jury's verdict in this case should  stand.


I. Analysis


A. Standard of Review


The defendant claims no legal error--i.e., no alleged im- proper
exclusions or admissions of evidence and no alleged  faulty jury
instructions. If this case involved legal error that  was found not to
be harmless, we would merely remand for a  new trial pursuant to the
correct legal standard. See, e.g.,  Griffin v. Washington Convention
Ctr., 142 F.3d 1308, 1312  (D.C. Cir. 1998) (remanding for a new trial
because of errone- ous exclusion of evidence). The defendant here
seeks much  more, however, claiming that the jury verdict should be
set  aside and judgment entered against the plaintiff for lack of 
sufficient evidence. In other words, in asking this court to  issue a
judgment of law in its favor, the defendant seeks to  have us "
'intrude[ ] upon the jury's domain.' " McNeal v.  Hi-Lo Powered
Scaffolding, Inc., 836 F.2d 637, 640 (D.C. Cir.  1988) (quoting Carter
v. Duncan-Higgins, Ltd., 727 F.2d  1225, 1227 (D.C. Cir. 1984)). This
is something that a court  will rarely do, because neither the trial
judge nor an appellate  court may " 'usurp[ ] the prime function of
the jury as the  trier of the facts.' " Id. at 646 (quoting Lind v.
Schenley  Indus., 278 F.2d 79, 90 (3d Cir. 1960) (en banc)); see also 
Stenograph, L.L.C. v. Bossard Assoc., 144 F.3d 96, 100 (D.C.  Cir.
1998) (affirming district court's denial of a judgment as a  matter of
law for defendants); Burns v. Washington Metro.  Area Transit Auth.,
114 F.3d 219, 221 (D.C. Cir. 1997) (per  curiam) (reversing
magistrate's grant of a judgment as a  matter of law for defendant);


1270, 1277 (D.C. Cir. 1995) (affirming district court's denial of 
defendant's motion for a judgment as a matter of law);  Mackey v.
United States, 8 F.3d 826, 830 (D.C. Cir. 1993)  (reversing district
court's grant of a judgment as a matter of  law for defendant); Parker
v. District of Columbia, 850 F.2d  708, 711 (D.C. Cir. 1988) (giving
jury awards "the utmost of  deference and respect") (internal
quotation marks omitted).  Under well-established case law that is
designed " 'to protect  the litigants' right to jury trial,' " McNeal,
836 F.2d at 647  (quoting Lind, 228 F.2d at 90), the courts are
strictly limited  from either granting a new trial or granting a
motion for  judgment as a matter of law on the grounds that the jury's
 verdict was against the weight of the evidence. To this end,  the law
is clear that a verdict "will withstand challenge unless  the evidence
and all reasonable inferences that can be drawn  therefrom are so
one-sided that reasonable men and women  could not disagree on the
verdict." Swanks v. Washington  Metro. Area Transit Auth., 179 F.3d
929, 933 (D.C. Cir. 1999)  (internal quotation marks omitted), cert.
denied, 68 U.S.L.W.  3389 (U.S. Dec. 13, 1999). In light of this very
narrow  standard of review, there is no basis upon which to set aside 
the jury verdict in favor of Mr. Duncan.


B. The ADA's Approach to Substantial Limitation of the  Major Life
Activity of Working


The ADA defines a disability as, inter alia, "a physical or  mental
impairment that substantially limits one or more of  the major life
activities of [an] individual." 42 U.S.C.  s 12102(2)(A) (1994). Mr.
Duncan's back condition consti- tutes a physical "impairment" under
the statute. The only  question at issue here is whether he provided
sufficient  evidence for a reasonable jury to conclude that his
impair- ment "substantially limits" any of his major life


Equal Employment Opportunity Commission regulations  define "major life
activities," nonexhaustively, as "caring for  oneself, performing
manual tasks, walking, seeing, hearing,  speaking, breathing,
learning, and working." 29 C.F.R.  s 1630.2(i) (1999). Mr. Duncan
claims that his back condition 


substantially limits his ability to work. The regulations say  that,
with respect to working, "substantially limits" means


significantly restricted in the ability to perform either a  class of
jobs or a broad range of jobs in various classes as  compared to the
average person having comparable  training, skills and abilities. The
inability to perform a  single, particular job does not constitute a
substantial  limitation in the major life activity of working.


Id. s 1630.2(j)(3)(i).


The regulations also indicate that


the following factors may be considered in determining  whether an
individual is substantially limited in the ma- jor life activity of
"working":


(A) The geographical area to which the individual has  reasonable
access;


(B) The job from which the individual has been dis- qualified because
of an impairment, and the number  and types of jobs utilizing similar
training, knowledge,  skills or abilities, within that geographical
area, from  which the individual is also disqualified because of the 
impairment (class of jobs); and/or


(C) The job from which the individual has been dis- qualified because
of an impairment, and the number  and types of other jobs not
utilizing similar training,  knowledge, skills or abilities, within
that geographical  area, from which the individual is also
disqualified  because of the impairment (broad range of jobs in 


Id. s 1630.2(j)(3)(ii) (emphasis added).


The question that we face is whether the "evidence and all  reasonable
inferences that can be drawn therefrom are so  one-sided that
reasonable men and women could not dis- agree," Swanks, 179 F.3d at
933 (internal quotation marks  omitted), that Mr. Duncan was not
significantly restricted in  his ability to perform either a class of
jobs or a broad range  of jobs. The majority essentially holds that,


Duncan provided no quantitative evidence detailing the rele- vant job
market, no reasonable juror could conclude that he  was significantly
restricted in his ability to perform either a  class or a broad range
of jobs. In my view, the majority asks  too much of an ADA plaintiff,
for neither the statute, regula- tions, nor case law require
quantitative evidence of the sort  that the majority here demands.


C. The Case Law From Our Sister Circuits


No relevant cases from within this circuit apply to the  question
before this panel: What quantum of evidence is  required simply to
reach the jury on the question of whether  a plaintiff is
substantially limited in the major life activity of  working? The
relevant law from our sister circuits, however,  compels the
conclusion that the majority has answered this  question


It is beyond peradventure that a plaintiff cannot establish  that he is
substantially limited in his ability to work simply by  showing that
he is disqualified from one particular job. See  Sutton v. United
Airlines, Inc., 119 S. Ct. 2139, 2151 (1999).  At the same time,
however, courts do not require ADA  plaintiffs to prove that almost
all jobs are outside their reach  in order to avoid summary judgment
or a judgment as a  matter of law. See DePaoli v. Abbott Labs., 140
F.3d 668, 672  (7th Cir. 1998) ("[A]n employer cannot avoid liability
by  showing that the employee is still generally capable of doing 
some economically valuable work in the national economy.").  Rather,
courts require "at least some evidence from which  one might infer
that [the plaintiff] faced 'significant restric- tions' in her ability
to meet the requirements of other jobs."  Davidson v. Midelfort
Clinic, Ltd., 133 F.3d 499, 507 (7th Cir.  1998) (describing what
plaintiff must do to defeat a motion for  summary judgment); see also
Swain v. Hillsborough County  Sch. Bd., 146 F.3d 855, 858 (11th Cir.
1998) ("Although a  plaintiff seeking recovery under the ADA is not
required to  provide a comprehensive list of jobs which she cannot
per- form, the person must provide some evidence beyond the  mere
existence and impact of a physical impairment to sur- vive summary


In determining what "class of jobs" is relevant for deciding  whether
the plaintiff is substantially limited in his ability to  work, the
analysis must focus on the personal characteristics  of the particular
plaintiff. Thus, a court must reasonably look  to a plaintiff's
"expertise, background, and job expectations."  Webb v. Garelick Mfg.
Co., 94 F.3d 484, 487 (8th Cir. 1996).  Indeed, as one court has
commented, "it is not easy to  envision how any other approach could
be taken." Mondze- lewski v. Pathmark Stores, Inc., 162 F.3d 778, 784
(3d Cir.  1998) (adopting approach "under which an individual's train-
ing, skills, and abilities are taken into account in determining 
whether the individual is substantially limited in the major  life
activity of working").


I can find no decision in which an appellate court has held  that an
ADA plaintiff must present evidence similar to that  required by the
majority in the instant case. The contrast  between the majority's
stance and that taken by most other  courts is best demonstrated by
considering the justifications  cited by courts that have granted
summary judgment or a  judgment as a matter of law for defendants in
disability  discrimination cases.


An obvious situation in which courts have granted summary  judgment or
a judgment as a matter of law in favor of a  defendant arises where
the plaintiff fails to allege exclusion  from a sufficiently broad
class of jobs. See Muller v. Costello,  187 F.3d 298, 313 (2d Cir.
1999) (stating that the category of  "correctional officer" was not a
"class of jobs" under the  ADA); Zenor v. El Paso Healthcare Sys.,
Ltd., 176 F.3d 847,  861 (5th Cir. 1999) (finding position of
pharmacist not to be a  class of jobs); Patterson v. Chicago Ass'n for
Retarded  Citizens, 150 F.3d 719, 725-26 (7th Cir. 1998) (finding
insuffi- cient evidence of a substantial limitation where plaintiff
was  only disqualified from one sort of teaching position); Bridges 
v. City of Bossier, 92 F.3d 329, 334-36 (5th Cir. 1996) (finding  that
the category of firefighting jobs is not a "class of jobs");  Daley v.
Koch, 892 F.2d 212, 215 (2d Cir. 1989) ("Being  declared unsuitable
for the particular position of police officer  is not a substantial
limitation of a major life activity."). This  is not the situation
here. Mr. Duncan demonstrated, with no 


serious dispute, that he was precluded from performing jobs  requiring
medium, heavy, and very heavy lifting; this is a  sufficiently broad
class of jobs to satisfy the requirements of  the statute. Cf. Cline
v. Wal-Mart Stores, Inc., 144 F.3d 294,  303-04 (4th Cir. 1998)
(finding maintenance supervisory work  to be a class of jobs);
DePaoli, 140 F.3d at 673 (considering  "any assembly line job that
required repetitive movement" to  be a class of jobs).


Another obvious situation in which courts have found evi- dence
insufficient to go to the jury arises where the plaintiff  was able to
secure employment similar to that from which he  was allegedly
disabled. See Gutridge v. Clure, 153 F.3d 898,  901 (8th Cir. 1998)
(emphasizing fact that plaintiff found other  similar employment in
finding no evidence of a substantial  limitation in the major life
activity of working), cert. denied,  119 S. Ct. 1758 (1999);
Patterson, 150 F.3d at 726 (finding  insufficient evidence of a
substantial limitation where plaintiff,  upon termination, became
employed with the Chicago school  system); Halperin v. Abacus Tech.
Corp., 128 F.3d 191, 200  (4th Cir. 1997) (finding insufficient
evidence to defeat a  motion for summary judgment where "there is
absolutely no  indication that Halperin's lifting restriction
significantly limits  his ability to perform a wide range of jobs"
especially where  the record showed that Halperin could, and did,
"find compa- rable employment with a different employer"); Zirpel v. 
Toshiba America Info. Sys., Inc., 111 F.3d 80, 81 (8th Cir.  1997)
(finding no substantial limitation where plaintiff "has  had three
jobs since her discharge, and she currently holds a  quality control
position nearly identical to the one she held at  Toshiba"); Gupton v.
Virginia, 14 F.3d 203, 205 (4th Cir.  1994) (finding no substantial
limitation where plaintiff "pre- sented no evidence that her allergy
[to tobacco smoke] fore- closed her generally from obtaining jobs in
her field" and  where defendant offered her a position in her field in
a  nearby office); see also Heilweil v. Mount Sinai Hosp., 32  F.3d
718, 724 (2d Cir. 1994) (affirming grant of summary  judgment for
defendant where plaintiff had a master's degree  and had been
gainfully employed since receiving her degree).  In this case, Mr.


was unable to perform jobs similar to that from which he was  fired.
After moving out of his apartment because of his  inability to pay
rent, Mr. Duncan eventually took a part-time  light-duty job with a
rental car company in which he earns  approximately one-third of his
previous salary.


The majority focuses attention, however, on a few decisions  that
mention a lack of quantitative evidence with respect to  the relevant
job market in holding that a plaintiff failed to  offer sufficient
proof for a jury to conclude that he or she was  disabled. None of
these cases can be stretched to support  the majority's apparent per
se requirement that an ADA  plaintiff provide quantitative evidence
detailing the job mar- ket. Rather, they establish the relevance, not
the necessity,  of such evidence.


For example, the instant case is easily distinguishable from  Thompson
v. Holy Family Hospital, 121 F.3d 537 (9th Cir.  1997) (per curiam).
The Thompson court did not treat  detailed statistical evidence as a
sine qua non of an ADA  claim, but focused on the plaintiff's failure
to provide job  market evidence in the face of the defendant's proffer
of an  affidavit from a vocational counselor stating that the
plaintiff,  a nurse, remained qualified for a number of registered
nurse  positions. See id. at 540 (noting, in addition, that plaintiff 
remained employed in the health care industry). The defen- dant made
no such showing here.


Similarly, in Bolton v. Scrivner, 36 F.3d 939 (10th Cir.  1994), the
court noted the lack of quantitative evidence as well  as the lack of
any evidence regarding the plaintiff's vocational  training and the
geographical area to which he had access.  See id. at 944. The Bolton
court nowhere suggested that  detailed quantitative evidence on the
relevant job market was  essential to the plaintiff's case. Here,
apparently contrary to  the plaintiff in Bolton, Mr. Duncan did
provide testimony  regarding his work experience, education, and
vocational  training.


The Muller decision is also distinguishable on its facts. In  Muller,
the defendant had identified several jobs for which  the plaintiff
remained qualified, and the plaintiff stubbornly 


insisted that "correction officer" was a class of jobs. Because  the
plaintiff presented no evidence that he was precluded  from jobs other
than correction officer, the court had no real  choice but to issue a
judgment as a matter of law for the  defendant. See 187 F.3d at 313.


Finally, the language taken by the majority from Colwell v.  Suffolk
County Police Department, 158 F.3d 635, 645 (2d Cir.  1998), cert.
denied, 119 S. Ct. 1253 (1999), is not inconsistent  with a jury
verdict in favor of Mr. Duncan. Unlike the  plaintiff in Colwell,
whose "only evidence concerned the gen- eral restrictions imposed by
his doctor," id., Mr. Duncan also  provided evidence as to his
education and vocational history.  That the plaintiff in Colwell was
faulted for not providing  evidence of the "kinds of jobs," id.
(internal quotation marks  omitted), from which he was disqualified
does not mean that  the Colwell court expected detailed quantitative
evidence of  the relevant job market. There is no indication that the 
Second Circuit would have been dissatisfied if the plaintiff  had
simply provided more and better qualitative evidence  from which a
jury could have inferred a substantial limitation  in his ability to


Most of the decisions from our sister circuits have found a  triable
issue of fact regarding a plaintiff's disability without  even
mentioning quantitative evidence detailing the relevant  job market.
See Mustafa v. Clark County Sch. Dist., 157  F.3d 1169, 1175 (9th Cir.
1998) (per curiam) (finding that  plaintiff was substantially limited
in his ability to work be- cause of depression, post-traumatic stress
disorder, and panic  attacks, while referring to no quantitative
vocational evi- dence); Cehrs v. Northeast Ohio Alzheimer's Research
Ctr.,  155 F.3d 775, 781 (6th Cir. 1998) (finding genuine issue of 
material fact regarding whether plaintiff's psoriasis substan- tially
limited her ability to work with no reference to evidence  regarding
job availability); Baert v. Euclid Beverage, Ltd.,  149 F.3d 626, 630
(7th Cir. 1998) (finding plaintiff's evidence  sufficient to overcome
summary judgment where he testified  to potential hospitalization due
to insulin-dependent diabetes);  Criado v. IBM Corp., 145 F.3d 437,
442 (1st Cir. 1998)  (finding, in affirming district court's denial of


motion for a judgment as a matter of law, that the jury could  have
reasonably concluded that plaintiff's depression, testified  to by
plaintiff and physician, "substantially impaired the  major life
activity of working," while referring to no evidence  regarding
classes of jobs for which she was disqualified);  Cline, 144 F.3d at
303-04 (finding a jury verdict of intentional  discrimination under
the ADA supportable where plaintiff  showed that he was disqualified
from maintenance superviso- ry work, and where the court made no
mention of vocational  evidence); Gilday v. Mecosta County, 124 F.3d
760, 765 (6th  Cir. 1997) (finding sufficient evidence to create a
question of  fact as to whether plaintiff's diabetes is a disability
under the  ADA because plaintiff's condition made him irritable and 
unable to cooperate with co-workers, an ability "necessary for  all
but the most solitary of occupations," without reference to 
quantitative vocational evidence); Best v. Shell Oil Co., 107  F.3d
544, 548 (7th Cir. 1997) (finding that summary judgment  for defendant
was improper even though the record did not  show how many jobs
plaintiff was disqualified from because of  the impairment); Roush v.
Weastec, Inc., 96 F.3d 840, 844  (6th Cir. 1996) (finding a genuine
issue of material fact as to  whether bladder infection resulted in a
substantial limitation  of working with no reference to testimony
about job market);  Pritchard v. Southern Co. Svcs., 92 F.3d 1130,
1134 (11th Cir.  1996) (finding sufficient evidence for the case to go
to the jury  where an engineer suffered symptoms of "marked fatigue, 
lack of energy, lack of interest, poor concentration, memory 
problems, suicidal thoughts, depressed affect, and irritability"  that
limited her ability to work in nuclear engineering, even  though she


It is notable that most of the reported district court  decisions in
the foregoing cases also made no mention of  quantitative vocational
evidence. See Gilday v. Mecosta  County, 920 F. Supp. 792 (W.D. Mich.
1996); Baert v. Euclid  Beverage, Ltd., 954 F. Supp. 170 (N.D. Ill.
1997); Cehrs v.  Northeast Ohio Alzheimer Research Ctr., 959 F. Supp.
441  (N.D. Ohio 1997). Indeed, among the foregoing cases, the  only
reported district court decision that did refer to quanti- tative
vocational evidence considered the evidence to disfavor 


the plaintiff. See Pritchard v. Southern Co. Svcs., 1995 WL  338662, at
*8-9 (N.D. Ala. Mar. 31, 1995) (finding that plain- tiff did not
allege sufficient evidence to support her disability  claim).
Nonetheless, following review, the decision of the  court of appeals
never even mentions the quantitative evi- dence in reversing the
district court's holding that the plain- tiff had not alleged
sufficient evidence to reach a jury. See  Pritchard, 92 F.3d at


Research indicates that most courts that have considered  facts similar
to those before this court have concluded that  there was sufficient
evidence for resolution of the issue by a  jury, even where there was
no quantitative evidence detailing  the relevant job market. In the
instant case, Mr. Duncan  adduced competent evidence that he was
foreclosed from  medium and heavy lifting jobs, that he had worked in
jobs  requiring heavy lifting in the past, that he never graduated 
from high school, and that he did not have computer training, 
clerical experience, or office skills. Given this testimony,  there
was sufficient evidence for the jury to conclude that Mr.  Duncan was
foreclosed from a class of jobs "utilizing similar  training,
knowledge, skills or abilities," 29 C.F.R.  s 1630.2(j)(3)(ii)(B), to
the job at WMATA, for which he was  otherwise qualified. See
Wellington v. Lyon County Sch.  Dist., 187 F.3d 1150, 1155 (9th Cir.
1999) (question of fact as  to whether plaintiff is disabled exists
where plaintiff had a  high school degree, his work experience was
limited to manu- facturing, construction, heavy maintenance and
plumbing, and  no evidence was presented to suggest that jobs were
available  for which a person with plaintiff's skills, training, and
abilities  was qualified); Quint v. A.E. Staley Mfg. Co., 172 F.3d 1,
11- 12 (1st Cir. 1999) (finding sufficient evidence for a jury to find
 disability because the "inability to lift heavy objects and  perform
repetitive manual tasks can translate across a broad  spectrum of
physically demanding jobs," where plaintiff testi- fied as to his
limited job experience, education, and skills, and  physician
testified that plaintiff was precluded from a "lot" of  jobs); Cochrum
v. Old Ben Coal Co., 102 F.3d 908, 911 (7th  Cir. 1996) (finding a
genuine dispute of material fact as to  whether plaintiff who worked


limited in working where plaintiff provided evidence that he  could
perform "no overhead work, heavy lifting, or pulling  and pushing out
from his body," because these restrictions  "might apply to a broad
range of jobs, and are more than job  specific").


In short, the weight of the case law from our sister circuits 
indicates that the existence of Mr. Duncan's disability should  be
evaluated based upon his individual characteristics, that he  must
show that he is disqualified from more than one particu- lar job, and
that relevant proof to determine whether he is  disabled may include
his education, work history, and evi- dence of the job market. Other
courts have been more likely  to focus on the inadequacy of
quantitative vocational evidence  where the defendant has made a
showing regarding the  plaintiff's eligibility for employment. The
defendant made no  such showing in this case. Mr. Duncan offered more
than  enough to have his case heard and decided by a jury. And  this
court acts beyond its authority in taking the case from  the jury.


D. Relevant Supreme Court Case Law


The Supreme Court's recent pronouncements on the ADA  do not give cause
for this court to second-guess the jury in  this case. In Murphy v.
United Parcel Service, Inc., 119  S. Ct. 2133 (1999), the Court
reviewed a grant of summary  judgment against an employee who was
dismissed from his  job as a UPS mechanic because of his high blood
pressure.  The employee argued in part that UPS regarded him as 
disabled because of his high blood pressure, alleging that the 
company regarded hypertension as substantially limiting him  in the
major life activity of working when, in fact, his hyper- tension did
not limit his ability to work. See id. at 2137. The  employee was
fired from his job because Department of  Transportation regulations
require that drivers of commercial  motor vehicles not have
hypertension. See id. at 2136. The  Court found that, at most, the
employee was regarded as  unable to perform only one particular job,
which is insuffi- cient to show that he is regarded as substantially
limited in  the major life activity of working. See id. at 2138-39.
The  Court noted that the employee "put forward no evidence that 


he is regarded as unable to perform any mechanic job that  does not
call for driving a commercial motor vehicle and thus  does not require
DOT certification." Id. at 2139. It was  undisputed, according to the
Court, that in fact petitioner was  "generally employable as a
mechanic." Id. This lack of  evidence put forward by petitioner
combined with the uncon- troverted evidence put forth by respondent
that he could  "perform jobs such as diesel mechanic, automotive
mechanic,  gas-engine repairer, and gas-welding equipment mechanic" 
convinced the Court that petitioner was not regarded as  substantially
impaired in the major life activity of working.  Id. The Court's
decision nowhere suggests that an ADA  plaintiff must present
quantitative evidence within the rigid  formula devised by the
majority here in order to demonstrate  a substantial limitation in the


In Sutton, two myopic sisters were rejected from a pilot  position
because they did not meet United's minimum vision  requirement. Their
suit was dismissed for failure to state a  claim upon which relief
could be granted. See Sutton, 119  S. Ct. at 2144. The petitioners
alleged, inter alia, that  United mistakenly regarded their physical
impairments as  substantially limiting them in the major life activity
of work- ing. See id. at 2150. The Court rejected this argument, 
again finding that petitioners had only alleged preclusion  from one
job, that of global airline pilot. See id. at 2151.  According to the


[t]o be substantially limited in the major life activity of  working,
then, one must be precluded from more than  one type of job, a
specialized job, or a particular job of  choice. If jobs utilizing an
individual's skills (but per- haps not his or her unique talents) are
available, one is  not precluded from a substantial class of jobs.
Similarly,  if a host of different types of jobs are available, one is
not  precluded from a broad range of jobs.


Id. After noting that petitioners had only alleged that Unit- ed
regarded them as being ineligible for one particular job,  the Court
observed that "there are a number of other posi- tions utilizing
petitioners' skills, such as regional pilot and 


pilot instructor to name a few, that are available to them."  Id. In
Sutton, then, as opposed to the instant case, the  plaintiffs could
only allege exclusion from one particular job,  which has long been
insufficient to support a claim of disabili- ty under the ADA.


The majority attempts to evade the weight of authority  from our sister
circuits by drawing a line between pre-Sutton  and post-Sutton cases.
See Maj. Op. at 7 n.3. This attempt- ed distinction is unconvincing
absent some explanation as to  why quantitative evidence regarding the
available job market  would be more relevant in a post-Sutton inquiry.
The majori- ty cites Sutton, 119 S. Ct. at 2151, to say that there are
 several factors courts "should consider" in assessing claims  under
the ADA, as if to suggest that a plaintiff must produce  quantitative
evidence detailing the relevant job market. See  Maj. Op. at 6. This
is not what Sutton says. Rather, in the  section of the Sutton opinion
cited by the majority, the  Supreme Court merely notes that


[t]he EEOC further identifies several factors that courts  should
consider when determining whether an individual  is substantially
limited in the major life activity of work- ing, including the
geographical area to which the individ- ual has reasonable access, and
"the number and types of  jobs utilizing similar training, knowledge,
skills or abili- ties, within the geographical area, from which the
indi- vidual is also disqualified." ss 1630.2(j)(3)(ii)(A), (B).


Sutton, 119 S. Ct. at 2151. Nothing in the EEOC regula- tions, however,
says that a plaintiff must in every case proffer  quantitative
evidence detailing the relevant job market. In- deed, the relevant
regulations both pre-Sutton and post- Sutton suggest that courts may
look to the available job  market as one among several relevant
factors in evaluating  whether or not an individual is disabled.
Sutton does nothing  to change this.


The majority's treatment of post-Sutton cases is also un- convincing.
See Maj. Op. 7 n.3. The majority attempts to  diminish the decision in
Wellington by citing a later decision  from the Ninth Circuit,
Broussard v. University of Califor-


nia, at Berkeley, 192 F.3d 1252 (9th Cir. 1999). The court in 
Broussard, however, found the expert's vocational report to  be
unreliable for two reasons ignored by the majority: the  expert
assumed, based on no documented evidence, that the  plaintiff had a
lifting restriction; and the expert incorrectly  assumed that the
plaintiff could only type for 15 minute  intervals when testing had
established she could type for 50  minute intervals. See Broussard,
192 F.3d at 1258. Obvious- ly, in such circumstances, an expert's
testimony should be  rejected as unreliable. More importantly,
Broussard cites  Bolton v. Scrivner approvingly, indicating the
relevance of  three separate types of evidence for the purposes of
establish- ing a disability: a plaintiff's vocational training, the
geograph- ical area to which he has access, or the number and types of
 jobs from which a plaintiff is disqualified. See Broussard,  192 F.3d


Significantly, Broussard makes it clear that a plaintiff's  burden
under the ADA is nothing like the test enunciated by  the majority in
this case. Rather, as the Ninth Circuit notes:


To defeat the University's motion for summary judg- ment, Broussard
needed to "identify what requirements  posed by the class of [animal
care] jobs ... were proble- matic in light of the limitations that
[CTS] imposed on  her. This is not an onerous requirement, but it does
 require at least some evidence from which one might  infer that
[plaintiff] faced 'significant restrictions' in her  ability to meet
the requirements of other jobs." David- son v. Midelfort Clinic, Ltd.,
133 F.3d 499, 507 (7th  Cir.1998). Broussard has failed to meet this
require- ment.


Broussard, 192 F.3d at 1259. The court's references to "not  an onerous
requirement," "at least some evidence," and "one  might infer" are a
far cry from what the majority seeks here.


Finally, and most tellingly, Broussard cites Sutton merely  to say that
the plaintiff's "inability to perform the specialized  job of animal
technician for the transgenic mice does not  constitute a substantial
limitation." Id. The court drew  nothing more from Sutton.


As one of our sister circuits has observed, in the context of  proving
a substantial limitation of the major life activity of  working,
Sutton and Murphy principally stand for the propo- sition that an ADA
plaintiff must "do more than allege that he  is regarded as having an
impairment which prevents him  from working at a particular job."
Shipley v. City of Univer- sity City, 195 F.3d 1020, 1023 (8th Cir.
1999). This is not an  earth-shaking notion, nor is it one that
shatters the founda- tion of the ADA. However, that a plaintiff is not
"disabled"  merely because he or she cannot perform a preferred job is
a  far cry from saying that, in order to prevail under the ADA, a 
plaintiff must in every case proffer expert testimony from a 
vocational specialist and statistical evidence regarding the  numbers
of jobs from which he was disqualified. In adopting  this rule, the
majority essentially holds that, in order to  prevail under the
statute, ADA plaintiffs must prove, with  quantitative certainty, that
almost all jobs are outside their  reach. The statute does not require
this, nor do the opinions  from the Supreme Court. This rigid
formulation simply  rewrites the statute--something we have no
authority to do-- and virtually ensures that very few plaintiffs will


II. Conclusion 


The jury's verdict in this case should stand. Under the  very narrow
standard of review that controls this court in this  case, there is no
basis upon which to take the case from the  jury. The judgment of the
District Court should be affirmed.