Lawson, John v. CSX Transportation

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1179

JOHN LAWSON, SR.,

Plaintiff-Appellant,

v.

CSX TRANSPORTATION, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 98 C 1182--Sarah Evans Barker, Judge.

Argued September 14, 2000--Decided March 26, 2001

Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge. John Lawson, Sr. filed a

claim against CSX Transportation, Inc. ("CSX")

under the Americans With Disabilities Act ("ADA"

or "the Act"). He alleged that CSX had

discriminated against him because of a disability

when it refused to hire him as a trainee for a

train conductor position. The district court held

that Mr. Lawson had presented insufficient

evidence for a jury to find that his Type I

insulin-dependent diabetes constituted a

disability within ADA coverage, or that CSX

refused to hire him because of his disability.

Because we believe that the district court did

not analyze properly whether Mr. Lawson is

entitled to the protections of the Act and

therefore failed to assess properly the evidence

of record, we must reverse the judgment of the

district court and remand the case for

proceedings consistent with this opinion.

I

BACKGROUND

A. Facts

John Lawson, Sr. has had Type I insulin-

dependent diabetes from infancy. According to the

affidavit of his physician,/1 in order to manage

his disease, Mr. Lawson must monitor carefully

blood sugar levels and minimize fluctuations in

his blood sugar. This monitoring requires

"continued vigilance" and strict adherence to "a

perpetual, multi-faceted and demanding treatment

regime." R.58, Ex.1 at 4 para. 11. He must

"inject insulin, follow a diet plan, exercise

daily, and test his blood sugar several times a

day." Id. para. 12. More precisely, Mr. Lawson

typically tests his blood four to six times every

day and administers three insulin injections. If

a blood test indicates a drop in glucose levels,

the district court explained that Mr. Lawson

"must stop all other activities in which [he] may

be engaged at the time and take in the kinds of

food that will bring [his] sugar levels back to

normal." R.60 at 8. Unless Mr. Lawson acts

quickly to raise his blood sugar, "he will

experience disabling episodes of dizziness,

weakness, loss of mentation and concentration,

and a deterioration of bodily functions." R.58,

Ex.1 at 4 para. 14. Consequently, "Lawson cannot

simply eat when and where he wants to, or exert

himself without concern for the effect the

exertion will have on his glucose levels." Id.

para. 15. Unlike a person with normal metabolic

function, Mr. Lawson "must always concern himself

with the availability of food, the timing of when

he eats, and the type and quantity of food he

eats." Id. at 5 para. 15. According to Dr.

Skierczynski, "Lawson’s eating as a fundamental,

major life activity is substantially limited" due

to his diabetes. Id.

Throughout his life, Mr. Lawson has had great

difficulty regulating his blood sugar levels. As

a young person, he was "in and out of hospitals

quite a bit" and had frequent insulin reactions

that caused him to drop items, get "the shakes,

headaches," and "occasionally . . . pass out."

R.41, Ex.3 at 32. Despite the fact that Mr.

Lawson has not sought hospitalization for his

diabetes since 1983, he continues to experience

"wildly fluctuating glucose levels with

hyperglycemia and hypoglycemia" and had a "severe

hypoglycemic reaction" in December 1995, when he

became confused and briefly lost

consciousness./2 R.58, Ex.1 at 2 para. 6(e)-(f).

Mr. Lawson’s symptoms of low blood sugar, or

hypoglycemia, include "slur[red] speech, profuse

sweating, paleness, shaking, unsteady walk, and

fruity odor breath." R.41, Ex.2 at 4 para. 25.

Dr. Skierczynski concluded that "Lawson’s

inability to properly regulate his blood sugar

levels will always put his life at risk no matter

how vigilantly he monitors his condition." R.58,

Ex.1 at 4 para. 13.

Mr. Lawson’s diabetes also has precipitated a

number of other serious ailments that limit him

physically and complicate his treatment and

prognosis regarding his diabetic condition./3 In

1995 and 1996, Mr. Lawson required multiple laser

treatments in each eye for proliferative diabetic

retinopathy, a condition that affects the small

blood vessels in the retina. He also sought

medical advice in 1995 "for fading erectile

ability, a problem commonly associated with

diabetes," and "continues to suffer from

impotence." Id. para. 6(i). Mr. Lawson

periodically experiences symptoms of "limited

joint mobility syndrome," a condition also

associated with diabetes, which causes "swelling

in [his] hands and wrists, and pain in [his]

elbows, hips and feet." R.41, Ex.2 at 1 para. 4.

Additionally, Mr. Lawson suffers from chronic

"elevated A-1 C hemoglobin tests" and

proteinuria, a condition involving an excess of

protein in one’s urine that "will likely progress

over the years to renal failure." R.58, Ex.1 at 3

para. 6(k)-(l). Dr. Skierczynski predicts that,

due to Mr. Lawson’s fluctuating glucose levels

and high hemoglobin test results, Mr. Lawson "has

a high risk of aggravating his already existing

medical problems and developing long term

complications of retinopathy, nephropathy,

neuropathy and cardiopathy." Id. at 5 para. 16.

Mr. Lawson, since graduating from high school in

1984, has held a few jobs of relatively short

duration. From 1984 through 1986, Mr. Lawson

worked for a time in his parents’ kennel business

and also performed "a variety of ’odds and ends’

work while looking for a permanent job." R.41,

Ex.2 at 1 para. 6. Between 1985 and 1986, Mr.

Lawson claims that he was employed with a small

construction company but that he was forced to

leave this job after a serious insulin reaction

rendered him unable to work./4 In the period

between 1986 through 1998, Mr. Lawson received

Social Security Disability Insurance ("SSDI")

benefits and worked briefly during two separate

periods in temporary jobs, neither of which

lasted more than four months.

In March 1997, Social Security personnel noted

that Mr. Lawson’s medical condition seemed to be

improving and suggested to his caseworker at the

Indiana Vocational Rehabilitation Agency that Mr.

Lawson might be physically able to find steady

employment. Mr. Lawson indicated an interest in a

conductor trainee program ("the program") offered

at Cincinnati State Technical and Community

College ("Cincinnati State") to train conductors

for CSX, a railroad transportation company based

in Jacksonville, Florida./5 In response to an

inquiry from Mr. Lawson’s caseworker regarding

whether a diabetic could perform the conductor’s

job, Cincinnati State furnished a job description

prepared by Laurie Ryan, a resource manager at

CSX. The job description for the conductor

trainee position lists four requirements:

[(1)] 1 or more years as a freight conductor . .

. or [g]raduation from the 5 week conductor

training program at . . . Cincinnati State . . .

[(2)] [h]igh school diploma or GED [3] [g]ood

physical condition, including vision, color

vision, hearing, and the ability to lift 85

pounds [and (4)] 10th grade reading level[.]

R.41, Ex.6 at 3.

After undergoing a physical examination by his

family physician, who pronounced him "in good

general condition" and able to "do[ ] this [CSX

conductor] job on a full time basis," R.41, Ex.6

at 4, Mr. Lawson also passed two written entrance

exams required for admission into the program--a

personality test and a mechanical aptitude test.

As a result, on December 23, 1997, Mr. Lawson was

admitted to the program at Cincinnati State.

Mr. Lawson began the five-week training program

on January 20, 1998, in a class of 14 students.

Mr. Lawson’s classmates and instructors in the

program were well aware of his diabetic

condition. At times during the program, Mr.

Lawson explained to them the symptoms of his

condition and the methods by which it can be

treated; at times Mr. Lawson even injected

himself with insulin in class. Ultimately, Mr.

Lawson completed the program with a running quiz

average of 96.1% and an exam average of 94.5%,

well above the 85% minimum average that CSX

requires for consideration as a conductor

trainee.

In February 1998, Mr. Lawson was interviewed by

Ryan and by Jeanie Layne, who is also a human

resource manager for CSX./6 There is a dispute

regarding what Mr. Lawson told Ryan and Layne at

the interview regarding his diabetes. Mr. Lawson

claims that he explained that his "lack of

employment experience was the result of [his]

diabetic condition," that he "had been totally

disabled for a number of years," and that he "was

receiving social security disability benefits."

Id., Ex.2 at 3 para.para. 16-17. Mr. Lawson also

claims that he described to Ryan and Layne his

efforts to educate his classmates in the program

regarding the symptoms and treatment of

hypoglycemia./7

Despite the fact that it hires approximately 98%

of all successful program participants, and that

it offered each of Mr. Lawson’s classmates

employment, CSX did not offer Mr. Lawson the job.

Ryan testified that Mr. Lawson was not offered

employment because of his very limited work

history, which "was not solid or verifiable."

Id., Ex.1 at 42. Although Ryan maintained that

CSX prefers to hire candidates with a high school

diploma and a solid, verifiable work history, she

conceded that CSX sometimes makes "exception[s]"

and hires conductor trainees who do not have such

qualifications. Id. at 70./8 She also

acknowledged that CSX had no written standards

for evaluating applicants at the time of Mr.

Lawson’s interview and that this situation gave

her a certain level of discretion in making job

offers. She explained that, in her view, Mr.

Lawson had not provided any additional

information that would have justified making an

"exception" to CSX’s preference for a solid,

verifiable work history.

Not long after learning of CSX’s decision, Mr.

Lawson spoke with Ryan by telephone. In that

conversation, as the district court recounted,

Ryan told Mr. Lawson that his lack of a solid,

verifiable work history was the reason for CSX’s

decision and that "if Lawson wanted to go flip

hamburgers for a year, CSX would reconsider his

application." R.60 at 16 (alteration in original)

(citation omitted). However, Ryan later admitted

that at the time of its employment decision, CSX

had in fact not attempted to verify Mr. Lawson’s

previous employment and that factor had no impact

on her decision. See R.41, Ex.1 at 42.

After he was denied a job by CSX, Mr. Lawson

made, without success, other efforts to find

employment. Ultimately, following the filing of

this lawsuit, CSX hired Mr. Lawson for the

conductor trainee job despite the fact that it

still maintained that his work history did not

qualify him for the position. Mr. Lawson has

worked for CSX in Terre Haute, Indiana, since

January 18, 1999.

B. Proceedings in the District Court

Mr. Lawson filed suit against CSX on August 27,

1998, claiming that the company refused to hire

him because of his disability, insulin-dependent

diabetes, in violation of the ADA. In its motion

for summary judgment, CSX argued that Mr. Lawson

was not qualified for the conductor trainee

position because "he lacked prior employment

history evidencing responsibility, safety and

dependability," R.38 at 1, and could not

demonstrate that CSX’s reason for rejecting him

was a pretext for discrimination. CSX further

argued that, under the standard adopted by the

Supreme Court in Sutton v. United Airlines, Inc.,

527 U.S. 471 (1999), Mr. Lawson’s diabetes is not

a disability as defined by the ADA.

The district court granted summary judgment for

CSX. The court first held that Mr. Lawson was not

disabled under the Act because he could not

demonstrate that his diabetes rendered him

substantially limited in a major life activity,

nor could he provide a record of his having been

substantially limited in a major life activity in

the past. The district court also held that, even

assuming Mr. Lawson could set forth a prima facie

case of discrimination under the ADA, summary

judgment was proper because CSX had provided "a

legitimate nondiscriminatory reason for its

decision not to hire him and Lawson has not shown

that CSX’s reason was pretextual." R.60 at 42-43.

Mr. Lawson then appealed to this court.

II

DISCUSSION

A. Standard of Review

We review the district court’s grant of summary

judgment de novo, viewing the record in the light

most favorable to Mr. Lawson. See Gorbitz v.

Corvilla, Inc., 196 F.3d 879, 881 (7th Cir.

1999). We shall affirm a grant of summary

judgment only if "the pleadings, depositions,

answers to interrogatories, and admissions on

file, together with the affidavits, if any, show

that there is no genuine issue as to any material

fact and that the moving party is entitled to

judgment as a matter of law." Fed. R. Civ. P.

56(c). A grant of summary judgment will not be

sustained if "the evidence is such that a

reasonable jury could return a verdict for the

nonmoving party." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

Mr. Lawson has employed the burden-shifting

methodology set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). Under this

approach, he must show: (1) that he is disabled

within the meaning of the ADA, (2) that he was

qualified for the conductor trainee position at

CSX, (3) that he was subject to an adverse

employment action, and (4) that the circumstances

surrounding the adverse action indicate that it

is more likely than not that his disability was

the reason for it. See Weigel v. Target Stores,

122 F.3d 461, 465 (7th Cir. 1997); see also

Leffel v. Valley Fin. Servs., 113 F.3d 787, 794

(7th Cir. 1997). If Mr. Lawson succeeds in

demonstrating the elements of a prima facie case,

CSX must then offer a lawful, nondiscriminatory

reason for its adverse action. See Silk v. City

of Chicago, 194 F.3d 788, 799 (7th Cir. 1999). If

CSX does so, Mr. Lawson must rebut that reason by

showing that the proffered reason is actually a

pretext for discrimination. See id. Of course,

because Mr. Lawson’s appeal here is in response

to a grant of summary judgment for CSX, he need

only show that a genuine issue of material fact

exists as to these factors.

B. Establishment of a Disability under

the ADA

1.

We first examine whether a jury could find that

Mr. Lawson is disabled within the meaning of the

ADA, such that he could establish the first part

of his prima facie case. In an effort to prove

that he was disabled under the Act’s definition,

Mr. Lawson contended in the district court that

his diabetes substantially limited him in the

major life activity of eating. We now address his

arguments in this regard.

The ADA defines a "disability" as: (1) "a

physical or mental impairment that substantially

limits one or more of the major life activities"

of an individual, (2) "a record of such an

impairment," or (3) "being regarded as having

such an impairment." 42 U.S.C. sec. 12102(2).

With regard to the first method of demonstrating

a disability, whether an individual has "a

physical or mental impairment that substantially

limits one or more of the major life activities,"

the Supreme Court of the United States has

instructed us to address the following inquiries:

First, we consider whether [the individual’s

claimed disability] was a physical impairment.

Second, we identify the life activity upon which

[the individual] relies . . . and determine

whether it constitutes a major life activity

under the ADA. Third, tying the two statutory

phrases together, we ask whether the impairment

substantially limited the major life activity.

Bragdon v. Abbott, 524 U.S. 624, 631 (1998).

We have no difficulty in determining that Mr.

Lawson’s insulin-dependent diabetes and related

medical conditions are physical impairments under

the Act. As the district court noted, Mr.

Lawson’s diabetes affects "many of the organ

systems in his body," including his "metabolic,

vascular, urinary, and reproductive systems as

well as his joints and eyes," and negatively

impacts his depression and high blood pressure.

R.60 at 29; see also 45 C.F.R. sec. 84.3(j)(2)(i)

(defining "[p]hysical or mental impairment").

We also conclude that eating is a "major life

activity" as defined by the ADA. Equal Employment

Opportunity Commission regulations interpreting

the ADA define "major life activity" by providing

a non-exhaustive list that includes "functions

such as caring for one’s self, performing manual

tasks, walking, seeing, hearing, speaking,

breathing, learning, and working." 29 C.F.R. sec.

1630.2(i); see also Sinkler v. Midwest Prop.

Mgmt. Ltd. P’ship, 209 F.3d 678, 683 (7th Cir.

2000); cf. Bragdon, 524 U.S. at 638-39 (citing

similarly worded Rehabilitation Act regulations).

Such activities need not have a public or

economic character to them; they must simply be

"central to the life process itself." Bragdon,

524 U.S. at 638. Clearly, the ability to eat is

integral to one’s daily existence, as much or

more so than the activities listed in the

implementing regulations. As a result, we hold

that eating constitutes a "major life activity"

for purposes of the ADA. See Forest City Daly

Hous., Inc. v. Town of North Hempstead, 175 F.3d

144, 151 (2d Cir. 1999) (eating is a major life

activity for purposes of ADA coverage); Land v.

Baptist Med. Ctr., 164 F.3d 423, 424 (8th Cir.

1999) (same); Erjavac v. Holy Family Health Plus,

13 F. Supp.2d 737, 746-47 (N.D. Ill. 1998)

(same).

The protections of the Act only apply, however,

when it is demonstrated that the disability of

the individual "substantially limits" a major

life activity such as eating. The Supreme Court

has held that, in determining whether a claimed

disability is substantially limiting, we must

examine the plaintiff’s condition as it exists

after corrective or mitigating measures used to

combat the impairment are taken into account. See

Sutton, 527 U.S. at 482. Therefore, in Mr.

Lawson’s case, we must consider the beneficial

effects of his diabetes medication in determining

whether his diabetic condition substantially

limits his ability to eat.

Here, we cannot accept the district court’s

conclusion that Mr. Lawson could be substantially

limited in his ability to eat only if his "actual

physical ability to ingest food is restricted."

R.60 at 36. This construction of the statutory

phrase "substantially limits" conflicts with the

Supreme Court’s recognition that the ADA

"addresses substantial limitations on major life

activities, not utter inabilities." Bragdon, 524

U.S. at 641. The district court failed to

consider the extent of the restrictions imposed

by Mr. Lawson’s treatment regimen and the

consequences of noncompliance with that regimen.

In doing so, the court prevented Mr. Lawson from

showing that, although he is not incapable of

ingesting food, his diabetes produces a

"substantial limitation" on his ability to

perform the basic life function of eating.

The record contains undisputed testimony that,

even when taking insulin, Mr. Lawson’s "ability

to regulate his blood sugar and metabolize food

is difficult, erratic, and substantially

limited." R.58, Ex.1 at 4 para. 18. Additionally,

"Lawson cannot simply eat when and where he wants

to, or exert himself without concern for the

effect the exertion will have on his glucose

levels. . . . [Instead, he] must always concern

himself with the availability of food, the timing

of when he eats, and the type and quantity of

food he eats." Id. para. 15.

Moreover, the district court’s characterization

of the impact that Mr. Lawson’s diabetes has on

his ability to eat, described in its opinion as

requiring "simple dietary restrictions," R.60 at

37, belies the severity of the restrictions that

he must follow if he is to avoid dire and

immediate consequences. On a daily basis, Mr.

Lawson must endure the discomfort of multiple

blood tests to monitor his blood glucose levels.

He also must adjust his food intake and level of

exertion to take into account fluctuations in

blood sugar. When his blood sugar drops, he "must

stop all other activities and find the kinds of

food that will bring his levels back to normal or

he will experience disabling episodes of

dizziness, weakness, loss of mentation and

concentration, and a deterioration of bodily

functions." R.58, Ex.1 at 4 para. 14. Mr.

Lawson’s physician characterized the measures he

must take to manage his disease as "a perpetual,

multi-faceted and demanding treatment regime"

requiring "continued vigilance." Id. at 3 para.

11. If Mr. Lawson fails to adhere strictly to

this demanding regimen, the consequences could be

dire: he could experience debilitating, and

potentially life-threatening, symptoms. This

evidence is sufficient for a jury to find that

Mr. Lawson is substantially limited with respect

to the major life activity of eating. See, e.g.,

Sutton, 527 U.S. at 491 (defining "substantially

limits" as meaning "considerable or specified to

a large degree") (citation and internal quotation

marks omitted).

It is the severity of these limitations on his

ability to eat that distinguishes Mr. Lawson’s

situation from that of other individuals who must

follow the simple "dietary restrictions" that

medical conditions sometimes entail. See, e.g.,

Weber v. Strippit, 186 F.3d 907, 914 (8th Cir.

1999) (unspecified "dietary restrictions"

prescribed for treatment of heart disease were

"moderate limitation[ ]" on eating), cert.

denied, 120 S. Ct. 794 (2000); Land, 164 F.3d at

425 (child with peanut allergy was not

substantially limited in eating because allergy

impacted "her life only ’a little bit’" and only

prohibited her from eating foods containing

peanuts or their derivatives); Shields v.

Robinson-Van Vuren Assocs., Inc., No.

98CIV8785DLC, 2000 WL 565191, at *2-5 (S.D.N.Y.

Nov. 8, 2000) (person controlling diabetes with

diet and exercise alone not substantially limited

in ability to eat when only impact involved

modifications to diet and eating habits, which

were not "severe enough"); Ingles v. Neiman

Marcus Group, 974 F. Supp. 996, 1001-02 (S.D.

Tex. 1997) (person who managed non-insulin-

dependent diabetes with oral medications and "a

’normal, good, healthy diet’" with meals "at

regular intervals" was not substantially limited

in eating). Instead, Mr. Lawson’s severe dietary

restrictions, and the dangerous consequences that

could result from a failure to maintain them, are

more analogous to other cases in which the

potential for a "substantial limitation" on the

ability to eat was found. See, e.g., Erjavac, 13

F. Supp.2d at 746 (issue of fact raised when

insulin-dependent diabetic, viewed in treated

form, "must eat constantly to prevent blood sugar

fluctuations," must "stop all other activities

and pursue . . . food[ ]" when blood sugar drops,

and must self-inject insulin "several times a

day"); Gonsalves v. J.F. Fredericks Tool Co., 964

F. Supp. 616, 621 (D. Conn. 1997) (genuine issue

of fact created when affidavit and deposition

testimony produced evidence that diabetic

plaintiff had "difficulty" eating and "dizziness

and blurry vision when his blood sugar level

became high"); Coghlan v. H.J. Heinz Co., 851 F.

Supp. 808, 814-15 (N.D. Tex. 1994) (genuine issue

of fact created when insulin-dependent diabetic,

viewed in treated form, experienced hypoglycemia,

creating debilitating state, that could only be

alleviated by eating), rev’d on other grounds,

Washington v. HCA Health Servs. of Texas, Inc.,

152 F.3d 464, 469 (5th Cir. 1998), vacated, 527

U.S. 1032 (1999).

These same considerations--the demands of the

regimen and the effects of noncompliance--also

make this case quite unlike the situation before

the Supreme Court in Sutton. The wearing of

corrective lenses to neutralize the effects of

myopia, at issue in Sutton, 527 U.S. at 475,

involves none of the coordination of multi-

faceted factors or the constant vigilance that,

according to this record, Mr. Lawson must

demonstrate on a daily basis. Moreover, in

Sutton, the Supreme Court noted that "any

negative side effects suffered by an individual

resulting from the use of mitigating measures"

must be taken into consideration. Id. at 484; see

also Moore v. J.B. Hunt Transport, Inc., 221 F.3d

944, 952 n.4 (7th Cir. 2000); Krocka v. City of

Chicago, 203 F.3d 507, 513 (7th Cir. 2000). As we

have previously noted, the multiple insulin

injections that Mr. Lawson takes each day can

cause symptoms of hypoglycemia, creating a

condition where the level of glucose in his blood

is too low. When Mr. Lawson’s blood sugar is

reduced to such low levels, he suffers from

symptoms including "slur[red] speech, profuse

sweating, paleness, shaking, unsteady walk, and

fruity odor breath." R.41, Ex.2 at 4 para. 25.

These symptoms will lead to "dizziness, weakness,

loss of mentation and concentration, and a

deterioration of bodily functions" if Mr. Lawson

does not eat immediately. R.58, Ex.1 at 4 para.

14. The evidence thus shows that, every day of

his life, Mr. Lawson must deal with the concern

that the insulin he injects to treat his illness

will itself bring about debilitating symptoms

that can only be ameliorated by immediately

eating certain foods.

In explaining why mitigating measures should be

taken into account in defining an ADA disability,

Sutton indicated that "[a] diabetic whose illness

does not impair his or her daily activities,"

after utilizing medical remedies such as insulin,

should not be considered disabled. Id. at 483.

This statement does not mean, however, that no

diabetic can ever be considered disabled under

the ADA’s meaning. Such an approach would

contradict the Court’s view that whether a person

is disabled under the ADA is an individualized

inquiry based on the particular circumstances of

each case. See id. Moreover, as we have

explained, the particular nature of Mr. Lawson’s

diabetes, even after treatment, could be said to

significantly impair his daily activities, unlike

the situation in Sutton.

Additionally, in Davidson v. Midelfort Clinic,

Ltd., 133 F.3d 499 (7th Cir. 1998), this court

also noted that in determining whether an

impairment can be said to "substantially limit"

the major life activity of the individual, a

court ought to consider the nature and severity

of the limitations, the actual or expected

duration of the impairment, and the actual or

anticipated long-term impact of the impairment.

See id. at 506 n.3 (citing 29 C.F.R. sec.

1630.2(j)(2)). The record before us establishes

that Mr. Lawson’s impairment is serious and

severe. He has a life-long medical history of

Type I diabetes, he suffers from a number of

diabetes-related medical problems, and the very

medication that he uses to control his diabetes

causes severe symptoms that have potentially

life-threatening consequences. The duration of

the illness also seems to be well-established.

Mr. Lawson was diagnosed with Type I diabetes

soon after birth, a disease that will remain with

him throughout his life. With respect to

prognosis, Dr. Skierczynski predicted "to a

reasonable degree of medical certainty that even

with continuous medical treatment and monitoring

of his disease, Lawson has not been able to

properly control his blood sugar levels for

several years . . . and his medical condition

will continue to deteriorate over time as a

direct consequence of his diabetes." R.58, Ex.1

at 5 para. 19.

From all the evidence in the record, a jury

could find that the prescribed treatment Mr.

Lawson must take to survive with diabetes causes

symptoms that substantially limit the major life

activity of eating. Therefore, the district court

erred in holding that Mr. Lawson could not

establish an issue of fact regarding the first

part of his prima facie case under the McDonnell

Douglas test.

2.

As we have noted, the ADA also defines a

disability as "a record" of a physical or mental

impairment that substantially limits one or more

of the major life activities. See 42 U.S.C. sec.

12102(2)(B). We believe that sufficient evidence

exists that there is a "record" that Mr. Lawson’s

diabetes has limited substantially his ability to

work in a broad class of jobs. See Sutton, 527

U.S. at 491.

Mr. Lawson testified that, in his younger years,

he was "in and out of hospitals quite a bit."

R.41, Ex.3 at 32. He also indicated that he had

frequent insulin reactions that caused him to

drop items, get "the shakes, headaches," and

"occasionally . . . pass out." Id. Dr.

Skierczynski stated that Mr. Lawson continues to

experience hyperglycemia and hypoglycemia and,

indeed, endured a "severe hypoglycemic reaction"

in 1995, when he became confused and briefly lost

consciousness. R.58, Ex.1 at 2 para. 6(f). The

record also contains evidence of numerous chronic

or recurring medical conditions symptomatic of

Mr. Lawson’s diabetes.

Additionally, there is evidence that these

maladies inhibited Mr. Lawson’s ability to

maintain any significant employment for a number

of years. Mr. Lawson maintains that soon after

his high school graduation, between 1985 and

1986, he had to quit his job with a small

construction company when he "had a serious

insulin reaction and could no longer work." R.41,

Ex.2 at 2 para. 7. Moreover, in August 1986, Mr.

Lawson’s application for SSDI benefits was

granted, and he continued to receive total

disability benefits until November 1998. During

that 12-year period, the Social Security

Administration ("SSA") reviewed Mr. Lawson’s

medical condition every two years and determined

that he continued to meet its definition of

disability, allowing Mr. Lawson continually to

receive benefits./9

We believe that a jury could conclude, from this

evidence, that Mr. Lawson can show that a record

exists indicating that his diabetes has limited

substantially his ability to work./10

Important in this determination is Mr. Lawson’s

receipt of disability payments under the Social

Security Act and the facts surrounding that

determination. The Social Security Act provides

income replacement to an individual who "is under

a disability," a term defined as an "inability to

engage in any substantial gainful activity by

reason of any . . . physical or mental impairment

which can be expected to result in death or which

has lasted or can be expected to last for a

continuous period of not less than 12 months." 42

U.S.C. sec. 423(d)(1)(A). To obtain an award of

SSDI benefits, Mr. Lawson had to demonstrate that

he "is not only unable to do his previous work

but cannot, considering his age, education, and

work experience, engage in any other kind of

substantial gainful work which exists in the

national economy . . . ." 42 U.S.C. sec.

423(d)(2)(A). The Supreme Court has held that

evidence of the receipt of SSDI benefits

regarding a claimed disability should not be a

dispositive factor in ADA disability

determinations. See Cleveland v. Policy Mgmt.

Sys. Corp., 526 U.S. 795, 802-05 (1999). The

Court also has indicated, however, that an SSA

determination of disability can be relevant and

significant evidence in showing that a disability

exists for ADA purposes. See id. at 806; see also

Feldman v. American Mem’l Life Ins. Co., 196 F.3d

783, 791 (7th Cir. 1999); Weigel, 122 F.3d at

467-68.

More specifically, in Cleveland, the Supreme

Court noted that because of differences in the

mechanics of the SSA and ADA determinations of

disability, a person could be considered disabled

by the SSA but yet also be a "qualified

individual with a disability" according to the

ADA. See id. at 802-03. Yet it also explained

that the two acts were similar enough in this

regard to require a person, seeking to show that

he is "qualified" to perform a job under the

ADA’s meaning, to provide a "sufficient

explanation" as to how this does not conflict

with the SSA’s determination that he was "unable

to work." Id. at 806.

Moreover, some of the differences cited by the

Court in Cleveland between the SSA and ADA

disability determinations are not applicable to

Mr. Lawson in deciding whether he can satisfy the

first prong of the prima facie case. The Court

noted that the SSA does not take into account the

idea of "reasonable accommodation" in its

disability determination, meaning that an

otherwise disabled person according to the SSA

could be "qualified" under the ADA when such an

accommodation is considered. Id. at 803. The

reasonable accommodation principle may be

relevant at trial regarding the second element of

Mr. Lawson’s prima facie case, whether he is

qualified for the position sought. But see

Feldman v. American Mem’l Life Ins. Co., 196 F.3d

783, 790 (7th Cir. 1999) (explaining that the

severity of a disability may change over time

such that an individual is totally disabled when

applying for SSDI, but "later [is] a qualified

individual at the time of the employment decision

disputed in an ADA suit"). However, it does not

affect the basic definition of a disability

according to the two acts. In fact, the language

considered by the SSA and the ADA in defining

disability with regard to the ability to work,

without taking into account the ADA’s reference

to reasonable accommodation, is somewhat similar.

Compare 42 U.S.C. sec. 423(d)(2)(A) (regarding

SSDI benefits, person must demonstrate that he

cannot "engage in any . . . kind of substantial

gainful work which exists in the national

economy") with Sutton, 527 U.S. at 491 (person

disabled under ADA if substantially limited in

ability to hold a "broad class of jobs").

Additionally, the Court explained that, because

the SSA often uses presumptions in its disability

findings, particularly by automatically finding

that a disability exists if it is one of a number

of "listed impairment[s]," a determination that

someone is disabled under the SSA’s

administrative rules may not mean that he is also

disabled according to the ADA’s more fact-

intensive inquiry. Id. at 804. However, although

there was uncertainty over this point during oral

argument, it appears that Mr. Lawson’s insulin-

dependent diabetes is not a listed impairment

under the SSA and that a more individualized

determination was necessary to allow his receipt

of SSDI benefits.

Lastly, the district court noted that Mr.

Lawson’s brief employment with two companies

between 1986 and 1991 showed that "Social

Security’s determination that Lawson should be on

total disability is not tantamount to a

conclusion that he was substantially limited in

his ability to work." R.60 at 42. We do not

disagree that Mr. Lawson’s employment in these

jobs makes it somewhat less likely that he can

demonstrate a record of disability during this

time period. However, we believe that such

limited work activity does not provide sufficient

justification to take this question out of the

hands of the jury, in light of all of the

evidence presented in this case.

Mr. Lawson’s receipt of SSA benefits over a

twelve-year period from 1986 to 1998, and the

factual circumstances surrounding it, constitute

significant evidence that his diabetic condition

rendered him unable to work in a broad class of

jobs during that time. Although this evidence is

not dispositive of the issue, and is not the only

factor upon which we rely in this determination,

it gives force to Mr. Lawson’s claim that a

record of disability exists. Mr. Lawson’s

evidence, taken as a whole, is sufficient for a

jury to find he has a record of diabetes

substantially limiting his ability to work.

Therefore, the district court’s determination

that Mr. Lawson could not show that he was

disabled in this regard under the ADA was also in

error. This provides another reason why summary

judgment was improper on the ground that the

first element of Mr. Lawson’s prima facie case

could not be met.

C. Remaining Elements of the Prima Facie

Case

1.

The district court not only determined that Mr.

Lawson’s claim failed because he could not

demonstrate that he was "disabled" under the ADA,

but it also noted that it "d[id] not believe

Lawson has sufficiently established the remainder

of his prima facie case." R.60 at 43 n.18

(italics omitted). Yet the court provided no

discussion of its determination in that regard;

it explained that, because in its view the case

could be decided on the disability prong of the

test, it would not "attempt to resolve" the

disputes as to the remainder of the elements of

Mr. Lawson’s prima facie case. Id. Despite the

lack of specific findings by the district court,

we may affirm its grant of summary judgment on

any ground supported by the record. See Conley v.

Village of Bedford Park, 215 F.3d 703, 710 (7th

Cir. 2000). We cannot do so here, however,

because the record demonstrates that a genuine

issue of material fact exists as to whether Mr.

Lawson can satisfy the remainder of his prima

facie case.

The second prong of the prima facie case

requires Mr. Lawson to show that he was qualified

for the position of conductor trainee at CSX. A

determination as to whether a person is qualified

for an employment position under the ADA involves

a two-step inquiry: (1) the employee must possess

"the appropriate educational background,

employment experience, skills, licenses, etc."

and (2) he must also be able to "perform the

essential functions of the position held or

desired, with or without reasonable

accommodation." Bay v. Cassens Trans. Co., 212

F.3d 969, 974 (7th Cir. 2000) (quoting 29 C.F.R.

app. sec. 1630.2(m)); see also Bombard v. Fort

Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th

Cir. 1996). CSX does not claim that Mr. Lawson

cannot handle the physical demands of the

conductor position; instead it asserts that he

cannot satisfy the first step of this inquiry

because he did not possess a work history

evidencing responsibility, safety and

dependability.

An employer may define the job in question, "in

terms of both its essential scope and the

qualifications required for it," Dalton v.

Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 676

(7th Cir. 1998), as long as such qualifications

are "job-related and consistent with business

necessity," Bay, 212 F.3d at 974 (quoting 42

U.S.C. sec. 12113(a); 29 C.F.R. sec.

1630.15(b)(1)). There is, on this record, a jury

question as to whether an employment history

demonstrating responsibility, safety and

dependability was a genuine requirement for the

position of conductor trainee at CSX. The record

shows that such a work history was not among the

prerequisites listed on CSX’s job description for

conductor trainee that it provided to interested

applicants at Cincinnati State. Additionally, CSX

had no guidelines defining this unstated

qualification, and the district court noted that

the company not infrequently made "exceptions" to

this criterion by hiring persons with "limited or

unskilled employment experience, applicants whose

employment could not be verified, applicants

without a high school diploma or GED, and even

applicants with criminal records including

unresolved felony convictions." R.60 at 44.

Moreover, not only has CSX submitted the

applications of a number of people hired for the

conductor trainee position who seem not to have

possessed this CSX prerequisite, see supra note 8

and accompanying text, but Ryan also admitted

that it was not unusual for her to hire people

who did not have a "solid" employment background.

Her description of the variety of exceptions to

this requirement calls into question whether it

was actually an essential feature for a conductor

trainee applicant:

There is an exception here that business

ownership can be substituted for employment.

Part-time work with concurrent volunteer

community service can substitute for full-time

employment. Part-time work while attending

college can substitute for full-time employment.

Acceptable explanations for gaps in employments

or layoffs or downsizing [also qualifies as an

exception]. . . . If someone has been in school

and doesn’t have a solid verifiable work history,

then we’ll look at their college, what type of

school work they’ve been doing . . . .

R.39, Ex.3 at 77. Ryan went on to describe one

applicant who did not have a "solid work history"

but whom she hired because he had done

significant volunteer work in high school; when

questioned whether she asked Mr. Lawson if he had

such volunteer experience, Ryan admitted she had

not, explaining that it was up to the applicants

to "sell themselves." Id. at 77-78.

CSX relies upon our decision in Holder v. Old

Ben Coal Co., 618 F.2d 1198 (7th Cir. 1980), for

the proposition that even though a job

qualification may not be published, it may still

be a requirement for an employment position.

Holder was a Title VII case involving the

question of whether a plaintiff was "qualified"

under the terms of that statute for an

"unskilled" mining position. Id. at 1200. There

the plaintiff had argued that because the job in

question was labeled "unskilled," it required no

particular qualifications, and thus she was

necessarily qualified for the position. See id.

We held that, although the defendant had not

listed any job requirements for the position,

that did not mean that it did not look for

certain qualifications in its applicants. See id.

However, the decision in that case turned on the

fact that the defendant, in hiring "unskilled"

workers, "primarily sought persons who had

operated mobile equipment or had worked with

heavy equipment" and "consistently sought

applicants for unskilled positions with mining

related experience," qualities the plaintiff did

not possess. Id. at 1200 & 1202. Additionally, we

explained that the term "unskilled" worker, in

the context of the defendant’s line of work, was

also simply a way for the company to describe a

job that was not a "skilled" position. A

"skilled" position was one that required

"technical ability," defined as "a minimum of six

months experience as a dragline operator, shovel

operator, machinist, electrician, welder,

mechanic, bulldozer operator, overburden driller,

or overburden shooter." Id. at 1200-01. We also

noted that the evidence "fail[ed] to show that

[the] defendant ever sought or hired anyone with

experience comparable to plaintiff’s." Id. at

1202. In contrast to the plaintiff in Holder, we

believe that Mr. Lawson has put forward enough

facts to create a jury question as to whether CSX

consistently required applicants to have a

responsible, safe, and dependable work history.

Additionally, he has shown that the company hires

persons with employment histories that are not

significantly different from the limited

experience he possessed./11

As to the fourth element/12 of the prima

facie case, whether the circumstances surrounding

the company’s decision make it more likely than

not that Mr. Lawson’s disability was the reason

why CSX did not hire him, we also believe that a

jury question exists on these facts. Mr. Lawson

informed Ryan and Layne that he was a diabetic, a

condition that previously had rendered him unable

to work and for which he had been receiving SSDI

benefits for a number of years. CSX then failed

to hire Mr. Lawson as a conductor trainee,

despite the fact that he completed the training

program at Cincinnati State with a high quiz

average and met the listed requirements for the

position in the job description that CSX provided

to the school. The evidence also shows that CSX

was not a particularly selective employer with

regard to its hiring from programs like

Cincinnati State’s. Indeed, it hired 98% of all

successful program participants, and it hired

every other member of Mr. Lawson’s program class.

CSX claimed that Mr. Lawson’s sparse work history

was the reason it did not hire him. However, as

we have noted, there is a serious question as to

whether such a work history was truly a job

requirement for CSX, and Ryan’s admission that

she had significant discretion in making

exceptions to this requirement particularly calls

into question the importance of this criterion to

the company.

These facts, considered together, could support

a jury’s determination that CSX more likely than

not refused to hire Mr. Lawson as a conductor

trainee because it knew that he was an insulin-

dependent diabetic. As a result, Mr. Lawson has

demonstrated a genuine issue of fact with regard

to each element of his prima facie case of

discrimination.

2.

CSX did come forward with a legitimate,

nondiscriminatory reason for its refusal to hire

Mr. Lawson. As discussed previously, it claimed

that he lacked a prerequisite for the conductor

trainee job because he did not have a work

history evidencing responsibility, safety or

dependability and because he offered CSX no

reason to make an exception to that rule. Mr.

Lawson must then be afforded the opportunity to

demonstrate that this reason was a pretext for

discrimination. See Reeves v. Sanderson Plumbing

Prods., Inc., 120 S. Ct. 2097, 2106 (2000); St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08

(1993). Mr. Lawson may succeed in his

demonstration of pretext by offering evidence

that CSX’s "proffered explanation is unworthy of

credence." Reeves, 120 S. Ct. at 2106 (citation

omitted). For many of the same reasons why Mr.

Lawson has created a genuine issue of fact

regarding the elements of the prima facie case,

there is also sufficient evidence to permit a

jury to conclude that the reason given by CSX as

to why it did not hire Mr. Lawson was

pretextual./13 See Reeves, 120 S. Ct. at 2106

(noting that "the trier of fact may still

consider the evidence establishing the

plaintiff’s prima facie case and inferences

properly drawn therefrom . . . on the issue of

whether the defendant’s explanation is

pretextual") (citation and internal quotations

omitted). These facts are sufficient to allow a

jury to disbelieve CSX’s proffered

nondiscriminatory explanation for its action and

to "believe [Mr. Lawson’s] explanation of

intentional discrimination." Id. at 2108

(emphasis and citation omitted).

Ultimately, Mr. Lawson has demonstrated a

genuine issue of material fact as to whether

discrimination regarding his status as an

insulin-dependent diabetic was the true

motivation for CSX’s employment decision--one

that made Mr. Lawson that exceedingly rare

employee who passed CSX’s training program for

the position of conductor trainee with flying

colors, met all of the qualifications CSX listed

for the position, and yet was not hired by the

company. We express no view on whether Mr. Lawson

ultimately will be successful at trial, but we

believe the evidence in the record demonstrates

that his case deserves to be heard by a jury.

Conclusion

For the reasons set forth in this opinion, the

judgment of the district court is reversed, and

this case is remanded for proceedings consistent

with this court’s opinion.

REVERSED AND REMANDED

/1 Dr. Paul Skierczynski, a board-certified

endocrinologist who has treated Mr. Lawson since

1996, described the severity and treatment of Mr.

Lawson’s medical condition. See R.58, Ex.1.

2/ Dr. Skierczynski noted that insulin is not a cure

for diabetes but is instead a tool used to treat

its symptoms. He went on to describe how insulin

can cause diabetic hypoglycemia and the physical

effects of that condition:

Too much insulin can cause hypoglycemia, a

condition where the level of glucose in the blood

is too low. Hypoglycemia can also occur when a

person has not eaten enough food or has exercised

without extra food. A person with hypoglycemia

may be nervous, shaky, weak or sweaty and

experience headaches and blurred vision.

R.58, Ex.1 at 4 para. 9.

/3 To treat these related conditions, Mr. Lawson

must take "a lot" of other medications "on top

of" his multiple insulin injections. R.41, Ex.3

at 12-13. Every day, Mr. Lawson takes three 50

mg. tablets of Captopril, a blood pressure and a

kidney medication; two doses of Lindoe, an

arthritis medication; one dose of Liptoril each

evening for cholesterol; and two different types

of insulin. Mr. Lawson also takes two doses of

Serzone each day, a medication that treats

depression; according to Dr. Skierczynski, Mr.

Lawson has a "history of attempted suicide and

ongoing current depression" that also hinders Mr.

Lawson in attempting to control his glucose

levels. R.58, Ex.1 at 2 para. 6(c).

/4 The district court did not consider evidence of

this employment experience, described in Mr.

Lawson’s affidavit, because the court believed

that it was contradicted by Mr. Lawson’s prior

deposition testimony. See R.60 at 9-10 n.4

("Unless there is a compelling reason to the

contrary, we do not permit a witness to

contradict his own deposition testimony by

subsequent affidavit created in an effort to

change the facts previously testified to."

(citing Russell v. Acme-Evans Co., 51 F.3d 64,

67-68 (7th Cir. 1995))). In his affidavit, Mr.

Lawson stated that he worked for this company

between 1985 and 1986. In his earlier deposition,

he was asked about his work history and stated

that he did no work in 1984 and 1985, with the

exception of his work at his parents’ kennel.

Although he did not mention the construction job

in this line of questioning, he was asked no

questions regarding his work history generally in

1986, only specific questions about his

employment with particular companies. To the

extent that this construction work may have

occurred during 1986, Mr. Lawson’s affidavit does

not necessarily contradict his deposition

testimony in this regard. Given the ambiguity of

the deposition testimony, we cannot say that the

subsequent affidavit directly contradicts Mr.

Lawson’s statements in the deposition. Therefore,

we shall consider evidence of this employment

experience in this appeal.

/5 CSX hires successful graduates of the Cincinnati

State training program as conductor trainees,

with the expectation that they will be promoted

to the job of conductor. A railroad conductor at

CSX "coordinates activities of train crews

engaged in transporting freight" and "supervises

the activities of switch engine crews engaged in

switching railroad cars within a yard or

industrial plant to facilitate the loading and

unloading of cars and the making up and breaking

up of trains." R.38 at 3-4 para.para. 9-10. The

conductor’s job is described as "dangerous and

physically demanding" as "[c]onductors work

outdoors much of the time, with many

distractions, and they perform activities on and

around moving equipment." Id. at 4 para.para. 11-

12. Although CSX does not own or operate the

Cincinnati State training program, or select

program participants, there is a close connection

between CSX and the program. For example, CSX

provides training materials for the program, CSX

employees have served as instructors in the

program, and "[a]ll enrollees in good standing in

the [program] are offered an interview for a

conductor trainee position with CSX." Id. at 5

para. 30.

/6 During the conductor training program, CSX

interviews participants in good standing to fill

job openings as conductor trainees. Job offers

are "contingent upon successful completion of the

railroad conductor course." R.38 at 6 para. 32.

/7 Although CSX disagrees with much of Mr. Lawson’s

recollection as to what was said about his

diabetes during this interview, a few specifics

are not in dispute. Both parties agree that: (1)

Mr. Lawson informed Ryan and Layne that he had

diabetes, (2) he represented that his condition

had prevented him from working during at least

some years in the past, and (3) at the time of

the interview he was physically able to perform

the job of conductor at CSX.

/8 During discovery, CSX produced the applications

of successful candidates for the conductor

trainee position who listed previous employment

consisting of only a few months of very limited

work experience. These candidates included the

following examples: a man who had worked 3

months part-time moving and assembling furniture;

another who had worked one month part-time as a

lawn service helper, one month part-time as a

busboy/dishwasher, and two months part-time as a

dishwasher; another who had worked 10 months

part-time driving a bread delivery truck; another

who had worked full-time one summer as a foreman

on a road crew; another who had worked one month

full-time on a farm, and one month part-time as a

supermarket stocker; and another who had worked

four months full-time stocking groceries.

/9 During this time, Mr. Lawson actively sought

employment, but he was actually employed for only

two brief periods: in the summer of 1988 he

worked for a moving company, and in 1991 he

maintained a three-month, part-time job with a

salvage company.

/10 Along with a showing that a record of a

substantially limiting impairment exists, a

plaintiff must also demonstrate that the employer

knew of that record. See Davidson, 133 F.3d at

510 n.8. The facts of this case could support a

finding that CSX was aware of Mr. Lawson’s

disability and the effect that it had on his work

history. During his job interview with CSX, Mr.

Lawson maintains that he told CSX representatives

Ryan and Layne that his lack of work experience

was due to his diabetic condition, and he

explained that he had been "totally disabled for

a number of years," R.41, Ex.2 at 3 para. 16, and

was presently receiving disability benefits.

/11 We offer no opinion on the question of whether,

even if CSX could show that a work history

demonstrating responsibility, safety and

dependability was a bona fide qualification for

the conductor trainee job, that quality "bears

more heavily on disabled than on other workers

and is not required by the necessities of the

business or activity in question." Matthews v.

Commonwealth Edison Co., 128 F.3d 1194, 1195-96

(7th Cir. 1997); see also 29 C.F.R. sec. 1630.10.

We also make no judgment regarding whether Mr.

Lawson has waived such a disparate impact claim,

as CSX alleges. See Appellee’s Brief at 42-43.

/12 The parties do not dispute the satisfaction of

the third element of the test, that Mr. Lawson

suffered an adverse employment action.

/13 We also note, as the district court described in

its opinion, that there is evidence suggesting

that CSX has produced other explanations in the

past for the decision not to hire Mr. Lawson,

some of which have not been accurate. See R.60 at

44 n.19. For example, Ryan initially claimed that

her inability to verify the work history that Mr.

Lawson had provided in his application was a

factor in CSX’s denial of his application. Ryan

later admitted, however, that the verifiable

nature of Mr. Lawson’s previous employment played

no role in her ultimate employment decision.

Indeed, she did not attempt to substantiate Mr.

Lawson’s work history before informing him that

he would not be hired by CSX. Next, in its

response to Mr. Lawson’s earlier complaint filed

with the Indiana Civil Rights Commission

("ICRC"), CSX submitted to the ICRC that not only

its inability to verify Mr. Lawson’s work

history, but also Mr. Lawson’s misrepresentation

of that work history, were factors in its

employment decision. However, CSX later admitted

that concerns about misrepresentation were not at

issue at the time of its decision on Mr. Lawson’s

status; only after that decision had been made

did CSX obtain evidence that Mr. Lawson may have

misrepresented his past employment. Lastly, Mr.

Lawson claims that Ryan told him that another

reason for her decision was that Mr. Lawson did

not have three years of continuous employment at

the time he interviewed for the job. Ryan

disputes this charge, maintaining that this too

was not a reason for her decision not to hire Mr.

Lawson. CSX’s shifting justifications for its

actions in this dispute also provide another

basis for concern regarding the company’s

credibility.

Easterbrook, Circuit Judge, concurring. I join the

court’s opinion but add a thought about the

significance of the disability benefits that

Lawson used to receive.

Lawson contends that the award of disability

benefits demonstrates (or at least strongly

implies) that he is disabled for purposes of the

ADA. To the extent that these benefits (and the

administrative determination underlying them)

show "a record of such an impairment", 42 U.S.C.

sec.12102(2)(B), this contention is

straightforward. The ADA does not let an employer

use past disability as a reason for refusing to

evaluate current abilities; thus it could not say

that it does not hire persons who have ever

received disability benefits. CSX did not make

this its official policy but came close by

announcing that it wanted to hire only persons

with steady work histories. If Lawson could not

work in the past (and was receiving disability

benefits on that account) but has improved and

can work now (as the Social Security

Administration believes), then CSX’s work-history

filter discriminates on account of Lawson’s

"record of impairment" memorialized in the award

of disability benefits. Although CSX contends

that it made exceptions (and would have allowed a

year of flipping burgers to suffice), on summary

judgment we must draw the inferences in Lawson’s

favor.

To the extent that Lawson believes the decisions

of the Social Security Administration to have any

other significance, I am skeptical. Cleveland v.

Policy Management Systems Corp., 526 U.S. 795

(1999), holds that the definition of disability

under the Social Security program differs from

the definition of disability under the ADA, so

that receipt of Social Security benefits does not

necessarily establish that a person is not "a

qualified individual with a disability" under the

ADA. See 42 U.S.C. sec.12112(a). Although the

difference in legal standards-- and in the

identity of the decisionmaker (an administrative

law judge versus a federal court)--means that the

award of benefits is not conclusive, the

representations a person makes in an effort to

obtain benefits may be significant. A person who

tells the SSA that he is bedridden, for example,

can’t pursue an ADA claim that depends on his

being spry. This is one point of Wilson v.

Chrysler Corp., 172 F.3d 500 (7th Cir. 1999),

which held that an employee’s representation to

the Social Security Administration that she is a

paranoid schizophrenic precluded her argument in

employment litigation that she is mentally stable

and fit to work. Neither Lawson nor CSX seems

interested in making anything of Lawson’s

representations to the agency, however; instead

Lawson wants to use the unelaborated award of

benefits to show that he is today a person "with

a disability" under sec.12112(a), and that step

is hard to reconcile with Cleveland.

Treating the SSA’s decision as something that

matters independent of "a record of impairment"

would send district courts (and juries) on a lot

of byways. If a grant of disability benefits

boosts an employee’s claim, then a denial also

would be admissible at the employer’s behest.

Judges then would need to tell juries what the

SSA’s standards are, how they differ from the

standards under the ADA, what to make of the fact

that Social Security proceedings are non-

adversarial (and that employers are not parties

to them), and so on. Cleveland suggests that this

is a path best avoided. Presumably the ALJ’s

opinion granting (or denying) disability benefits

would be admissible and become a topic of debate

at trial; and if benefits were granted (or

denied) without an ALJ’s involvement, things might

be even murkier.

Litigants often try to introduce agency

dispositions in suits under Title VII, but courts

have concluded that neither a finding by the EEOC

that discrimination occurred, nor a finding of no

discrimination, has legal consequences or would

promote accurate decisionmaking by juries. Lang

v. Kohl’s Food Stores, Inc., 217 F.3d 919 (7th

Cir. 2000), collects a few of these decisions. I

don’t see any reason to treat agency

determinations differently under the ADA. Using

disability benefits solely to demonstrate "a

record" of impairment avoids these problems. And

if the employer concedes that the plaintiff has

"a record" of impairment, then it should be

possible to keep the administrative decision out

of evidence altogether. Cf. Old Chief v. United

States, 519 U.S. 172 (1997).