# Duncan v. Washington Metropolitan Area Transit Authority > Court of Appeals for the D.C. Circuit · March 2, 2001 · 240 F.3d 1110 URL: https://www.frixlaw.com/law-library/cases/9439247 ## Case - **Full name:** Jimmy L. DUNCAN, Appellee, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** March 2, 2001 - **Citations:** 240 F.3d 1110; 345 U.S. App. D.C. 170; 11 Am. Disabilities Cas. (BNA) 833; 2001 U.S. App. LEXIS 3056; 2001 WL 201976 - **Precedential status:** Published - **Opinion:** Concurrence by Tatel - **Judges:** Edwards, Ginsburg, Henderson, Randolph, Rogers, Sentelle, Silberman, Tatel, Williams - **Cited by:** 93 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9439247 ## How later opinions describe it (automated extraction) - concluding that a plaintiffs anecdotal evidence about his inability to find work after his discharge, combined with evidence of his age, limited skills, education, and experience, provided insufficient evidence as to whether “the total number of such jobs that remain available… - holding that to demonstrate substantial limitation of ability to work, the "ADA requires a plaintiff ... to produce some evidence of the number and types of jobs in the local employment market in order to show he is disqualified from a substantial class or broad range of such … - affirming grant of summary judgment where plaintiffs evidence established “little or nothing ... about the number and types of jobs in the Washington, D.C. area for which [he] is qualified and which are therefore available to him,” though evidence established that plaintiffs b… - holding that a back injury that limited the plaintiff to lifting no more than 20 pounds did not substantially limit a major life activity ## Opinion text TATEL, Circuit Judge, concurring: I agree that the verdict in Duncan’s favor cannot stand. I write separately to explain my view of the precise nature of the burden that Sutton v. United Air Lines, Inc., 527 U.S. 471 , 119 S.Ct. 2139 , 144 L.Ed.2d 450 (1999), places on ADA plaintiffs. Sutton describes the standard for proving that an impairment “ ‘substantially limits’ ... the major life activity of working”: When the major life activity under consideration is that of working, the statutory phrase “substantially limits” requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs. Reflecting this requirement, the EEOC uses a specialized *1119 definition of the term “substantially limits” when referring to the major life activity of working: “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.” . 29 C.F.R. § 1630.2 (j)(3)(i). ... 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 jobs. 527 U.S. at 491-92 , 119 S.Ct. 2139 . This passage gives plaintiffs attempting to prove disability on the basis of a substantial limitation in the major life activity of working a choice: they may demonstrate that their impairment excludes them from “either a class of jobs or a broad range of jobs in various classes.” As the penultimate sentence explains, plaintiffs attempting to prove exclusion from a “class of jobs” must show that their impairment disqualifies them from jobs utilizing their skills. In Sutton , for example, the Supreme Court said that airline pilots who have impairments that preclude them from working as global pilots but who can nonetheless hold “a number of other positions utilizing [their] skills, such as regional pilot and pilot instructor” cannot claim to be substantially limited in the major life activity of working. Id. at 493 , 119 S.Ct. 2139 . According to the final sentence in the Sutton passage, plaintiffs attempting to prove exclusion from a “broad range of jobs”— the second of the two options — must show that there is not a “host” of different types of jobs available to them. As an example of a person who might claim to be precluded from a broad range of jobs, the EEOC Interpretive Guidance describes an individual who “has an allergy to a substance found in most high rise office buildings, but seldom found elsewhere, that makes breathing extremely difficult.” 29 C.F.R. pt. 1630, App. § 1630.2(j). Of course, after Sutton , such a person would also have to show that jobs not in high rise buildings are unavailable, leaving some doubt as to whether plaintiffs would any longer attempt to make such a claim. Duncan claimed only exclusion from a class of jobs. To prove his case, Duncan thus needed to show that the class of jobs from which he alleged preclusion was “broad” or “substantial,” and not limited to jobs utilizing his “unique talents.” Sutton, 527 U.S. at 491-92 , 119 S.Ct. 2139 . Presenting evidence of his back injury and lack of formal training or education, he proved only his inability to handle jobs requiring heavy lifting. As I read Sutton , he also had to show that he could not handle the broader class of jobs requiring manual labor, of which heavy lifting is but a subclass. Duncan could have satisfied his burden of proof by producing specific evidence either that he applied unsuccessfully for non-lifting manual labor jobs (thus demonstrating that he was unqualified for those jobs for some other reason) or that most manual labor jobs require heavy lifting. He failed to do either, testifying only as follows: Q: When you were on unemployment did you make any inquiries with any employers that had vacancies for truck driver positions to determine if you could do the job? A: Yes. I would — I would check the vacancies — I mean the unemployment, and I would call places, and jobs that I thought I could do I would ask them what the job entailed, and if it was to the point where I know I wouldn’t be *1120 able to do a lot of lifting I wouldn’t — I wouldn’t inquire no more about it. Q: Did any of the truck ... driving types of jobs that you applied for, did . they require heavy lifting? A: Yeah, most all of them basically. Q: Mr. Duncan, in addition to truck driving positions that you may have made some inquiries about, do you recall any other types of jobs or specifics about any types of jobs that you applied for during that period of unemployment? A: I can’t remember. Trial Tr. at 130-31 (May 19, 1997). Absent more “significantly probative” evidence, see Smith v. Washington Sheraton Corp., 135 F.3d 779, 782 (D.C.Cir.1998), no reasonable jury could have concluded that Duncan was unable to perform manual labor, i.e., that he was excluded from a substantial class of jobs. From his testimony, the jury could have concluded that all truck driving jobs require heavy lifting, but the record contains nothing from which the jury could have concluded that other manual labor jobs likewise require heavy lifting. While I thus agree that the verdict in Duncan’s favor cannot stand, I think it important to emphasize that although Sutton requires Duncan to have proven an inability to perform manual labor, it does not also require him to have shown an inability to qualify for non-manual labor jobs in the area in which he lives. Sutton would require such evidence of plaintiffs seeking to prove disability based on exclusion from a “broad range of jobs,” but that requirement does not apply to plaintiffs like Duncan who seek to prove disability on the basis of exclusion from a “class of jobs.” 527 U.S. at 492 ; 119 S.Ct. 2139 . Requiring such proof of plaintiffs like Duncan, moreover, would convert the ADA inquiry from asking whether plaintiffs are precluded from classes of jobs to whether, as in the Social Security disability benefits context, they are unable to work at all. See 42 U.S.C. § 423 (d)(1)(A) (defining “disability” under the Social Security Act as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment”) (emphasis added). Consider a surgeon claiming to be disabled under the ADA because a physical or mental impairment precludes him from a class of jobs. Like the airline pilot plaintiffs in Sutton , although it would not be enough for the surgeon to show that he could no longer perform surgery — he would need to show that he was unable to practice medicine at all — nothing in Sutton requires that he demonstrate the absence of a “host” of non-medical jobs that he could handle, such as office administration, food service, or maintenance. 527 U.S. at 492 , 119 S.Ct. 2139 . In other words, the surgeon could establish disability under the ADA by showing only that, as Sutton puts it, “jobs utilizing [his] skills (but perhaps not his ... unique talents)” were unavailable. Id. So too Duncan. He need not have demonstrated preclusion from non-manual labor jobs; proving exclusion from the class of jobs requiring manual labor would have been enough. Because he failed to show even this, I concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9439247. Public record. Not legal advice.