Petition for Writ of Certiorari — Sutton v. United Air Lines, Inc.

Suerome Court, U.S

) [LED

~ 971943 0UN1 wm

No.

GFRE OF TRE TERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

KAREN SUTTON AND KIMBERLY HINTON,

- Petitioners,

UNITED AIR LINES, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

VAN AARON HUGHES

Counsel of Record for Petitioners

TUCKER K. TRAUTMAN

IRELAND, STAPLETON, PRYOR & PASCOE, P.C.

1675 Broadway, Suite 2600

Denver, Colorado 80202

Telephone: (303) 623-2700

SHAWN D. MITCHELL

12530 Newton Street

Broomfield, CO 80020

Telephone: (303) 464-9409

Attorneys for Petitioners

‘

ee ee eee «©

-

QUESTIONS PRESENTED

1. Where an airline pilot’s uncorrected vision is so poor that

it constitutes a physical impairment under the Americans with

Disabilities Act, is the pilot nevertheless excluded from protec-

tion under the Act if her vision can be corrected?

2. Should courts defer to the EEOC Interpretive Guidance

that disabilities should be analyzed in their uncorrected state?

3. Is a commercial pilot regarded as disabled by a major

airline that refuses to employ her as a pilot for that airline due to

her poor vision?

TABLES OF CONTENTS

QUESTIONS PRESENTED ..------:***" "°°

TABLE OF AUTHORITIES ...------*s*° 7°"

OPINION BELOW ....----scscrsrrrrn ne

FURIGENCTION. 0.00 cee et esecwereneses

STATUTES AND REGULATIONS INVOLVED .

STATEMENT OF THE CASE ..-------*" "°°

ARGUMENT FOR GRANTING THE WRIT ...

1.

Il.

THE TENTH CIRCUIT'S HOLDING

THAT ANALYSIS OF DISABILITIES

SHOULD INCLUDE AVAILABLE

CORRECTIVE MEASURES THROWS

INTO TURMOIL THIS IMPORTANT

AREA OF THE LAW ...-- +++ 7°7""

A. The Tenth Circuit's Decision Greatly

Exacerbates the Conflict Among the

Circuits Regarding Corrective

Measures under the ADA...------

B. The Tenth Circuit's Decision Is at

Odds with the EEOC’s Interpretation

and Worsens Confusion as to

Deference to Be Afforded the

Agency’s Guidance... +--+ +++ 5*""

THE TENTH CIRCUIT'S HOLDING

THAT PETITIONERS ARE NOT

REGARDED AS DISABLED

CONFLICTS WITH THE RULE THAT

THE DEFENDANT'S PERCEPTION

NEED NOT BE COMMON TO THE

OUTISTEY 2 ccc cet cusennernree®

CONCLEISION . oe oa on one OF eer n ena

APPENDIX

Opinion of the United State Appe

s Court of

for the Tenth Circuit filed November 26, a

Order of the United States C

ourt of Appe

the Tenth Circuit Filed March 3, pf ia _

ol

ae on Opinion and Order of the United

sa Court for the District of Colorado

August 28, 1996

*_* *

*_* *

**eeeeneeeees

*“*e

.

IV

TABLE OF AUTHORITIES

CASES

Amold v. United Parcel Serv. 136 F.3d 854 (ist

aE A ae ep RET qa ees

Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905

DU hci edwin ker aanndweninnes

Baulos v. Roadway Express, Inc., 139 F.3d 1147

Co? 3 eee rrr rrr? err

Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997) .

Byrne v. Bd. of Education, 979 F.2d 560 (7th Cir.

RET Op reer rr ks ver te

Chevron USA Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)... . 2... +.

Cline v. Fort Howard Corp., 963 F. Supp. 1075

i GH WH Fos esc i cacvetiadesss: a:

Coghlan v. HJ. Heinz Co., 851 F. Supp. 808 (N.D.

Tes BBs 6. ca cd editors ec Berens dudes.

Cook v. Rhode Island Dep't of Mental Health,

Retardation & Hosps., 10 F3d 17 (Ast Cir. 1993) .

Davidson v. Midelfort Clinic, Lid., 133 F.3d 499

(hts Che: WEE pete zo aches Credo hewas 4s.

Doane v. City of Omaha, 115 F.3d 624 (8th Cir.

1997), cert. denied, 118 S. Ct 693 (1998) ......

Ellison v. Software Spectrum, Inc., 85 F.3d 187 (Sth

A ela a it A A EES Sih

Fallacaro v. Richardson, 965 F. Supp. 87 (D.D.C.

WO Ni sce pit ape Salli tr as 4 ep

Foreman v. Babcock & Wilcox Co., 117 F.3d 800

(Sth Cir. 1997), cert. denied, 118 S. Ct. 1050

eine aed as ARRAS SE Meee

Forsi v. Bowen, 794 F.2d 931 (4th Cir. 1986). . . .

Gaddy v. Four B Corp., 953 F. Supp. 331 (D. Kan.

SOOEE oo gneve toréeewasesasesuarenese'

General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) .

Gilday v. Mecosta County, 124 F.3d 760 (6th Cir.

v

Haris HAW Contracting Co., 102 F3d 516 (11th ore

Holihan Lucky Stores, ne, 87 34 362 (in Gi.”

41998), cen. denied, 117 S. C1349 (1997) Saas

Lat OR HC nn... 1

136 F.3d 933 (3d Cir. 1997)... es md .. 7,810

Mentor Sax. Bank, FSB v. Vinson, 477 US 57 st

PSS EL AIO a A 1

[3 hee

F.3d 609 (8th Cir. ee 4 10

ir gait: otis iad 7

Sicard v. City of Sioux City, 950 F

(N.D. Iowa 1996) 06 ks eiee neh ae 10

"500 1S University Shalala, $12 US

304 (1994)... 5 be hai as 10

Supp. 898 (ED. Pa 1997). 6, 10

STATUTES AND REGULATIONS

Sa80 6s ..........

28 U.S.C. § 1254(1) (1994)... >

i |) SS ileal dal passim :

————e.

29 CER. § 1630.24) (1997). 9” passie

vi

20 CER. § 1630, App. $ 1630.2(h) &

GMI) (IDOI) owe vvasccecerceccscseseee’

LEGISLATIVE HISTORY

i .. . o6ewebee

H.R. Rep. No. 101-485 (11) (199°)

H.R. Rep. No. 101-485 (III) (1990) ..-- +--+ 0°

S. Rep. No. 101-116 (1990)... ce cercrereres

PAGE

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

KAREN SUTTON AND KIMBERLY HINTON,

m Petitioners,

UNITED AIR LINES, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Karen Sutton and Kimberly Hinton (‘Petitioners” or

“Pilots”) respectfully request that a writ of certiorari be issued to

review a decision of the United States Court of Appeals for the

Tenth Circuit entered on November 26, 1997. The Tenth Circuit

affirmed the order of the United States District Court for the

District of Colorado dismissing the Pilots’ claims against

Respondent United Air Lines, Inc. (“United”’).

OPINION BELOW

The opinion of the United States Court of Appeals for the

Tenth Circuit is reported at 130 F.3d 893, and is reproduced in

the Appendix at A-1. The Order of the United States District

Court for the District of Colorado is reproduced in the Appendix

at A-27. p

JURISDICTION

The judgment of the Court of Appeals was entered on

November 26, 1997. (Appendix A-1.) Pilots’ Petition for Rehear-

ing and Suggestion for Rehearing En Banc was denied on

2

March 3, 1998. (Appendix A-26.) This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1) (1994).

STATUTES AND REGULATIONS INVOLVED

Section 3(2) of the Americans with Disabilities Act of 1990,

42 U.S.C. § 12102 (1994), provides:

(2) Disability. The term “disability” means, with respect to

an individual—

(A) aphysical or mental impairment that substantially limits

one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

Section 1630.2(j) of the Americans with Disabilities Act of

1990 Regulations, 29 C.F.R. § 1630.2(j) (1997), provides in perti-

nent part:

(j) Substantially limits—

(3) With respect to the major life activity of working—

(i) The term substantially limits means significantly

restricted in the ability to perform either a class of jobs or a

broad range of jobs in various classes as compared to the average

person having comparable training, skills and abilities. The

inability to perform a single, particular job does not constitute a

substantial limitation in the major life activity of working.

(ii) In addition to the factors listed in paragraph (j)(2) of this

section, the following factors may be considered in determining

whether an individual is substantially limited in the majo. ‘fe

activity of “working”:

(A) The geographical area to which the individual has rea-

sonable access;

(B) The job from which the individual has been disqualified

because of an impairment, and the number and types of jobs

3

utilizing similar training, knowled

; ge, skills or abilities, withi

ne ee mere area, from which the individual is also deeats

use of the impairment (class of jobs); and/or

_(C) The job from which the indivi

ndividual has been di alifi

pee roe ni an impairment, and the number and sane 66 pa

ak, Hoan. similar training, knowledge, skills or abilities

geographical area, from which the individual is also

disqualified beca impai

wastes insane use of the impairment (broad range of jobs in

EEOC In Guidance for

sion os § 1630.2(j), 29 CER.

dese App. § -2(h) & (j)(2) (1997), provides in pertinent

(h) ...The existence of an impai i

ice of pairment is to be determi

yors regard to mitigating measures such as pediinan on

ya ss Prosthetic devices. See Senate Report at 23, House

‘or Report at 52, House Judiciary Report at 28. For example,

(j)(2) e determination of whether an individual is sub-

STATEMENT OF THE CASE

Petitioners are twin sisters who

isi are extremely well

me a to be airline pilots. They aaa are + seo

~ | aye or commuter airlines, however it is their lifelong goal

Or a major global air carrier. 4

As alleged in their Amended Complai

nt, the ’ vision i

poorer than the standard for legal token for ae vine:

4

Specifically, both of the Pilots have uncorrected vision of 20/200

or worse in the right eye, and 20/400 or worse in the left eye.

Without the use of corrective measures, Petitioners cannot con-

duct such basic activities as driving an automobile or watching

television. When wearing glasses or contact lenses, however, the

Pilots’ corrected vision is 20/20, and the FAA has awarded both a

first class medical certificate.

Petitioners applied to United for employment as pilots.

United invited the Pilots to interview at its Denver Flight Train-

ing Center, and administered a flight simulator test to Petitioner

Hinton, on which she performed well. Nevertheless, United

rejected Petitioners from any consideration as pilots due to their

vision. United requires applicants to have uncorrected vision of

20/100 or better in order to be considered for any of its

thousands of pilot positions around the world, regardless of

model of aircraft, air route, Or flight conditions.’ United asserts

that this is a rational safety requirement, but Pilots have alleged

that the requirement reflects only stereotype, myth, or unsub-

stantiated fears, and bears no relationship to safety. Indeed,

Petitioners believe that United does not apply its vision require-

ment to current pilots in its own fleet.

The Pilots brought suit against United under Sec-

tion 3(2) of the Americans With Disabilities Act (“Act”), 42

U.S.C. § 12102(2) (1994). They alleged that United violated the

Act by rejecting them because they were disabled, or because

United regarded them as disabled. Plaintiffs sought legal and

equitable relief provided for in the Act, including injunctive

relief ordering United not to apply unlawful criteria in future

hiring decisions.

The district court granted United’s motion to dismiss the

Pilots’ action. United did not dispute that the Pilots were dis-

qualified from its pilot positions because of their impaired vision.

Nevertheless, the district court held that the Pilots’ vision is not a

! Other global air carriers have similar vision requirements, although

Petitioners have been able to fly commercially for commuter airlines.

5

pre mad limiting impairment within the meaning of the

poet eee appeals affirmed. The court of appeals con-

price meray are physically impaired within the meaning

patric om ve ne impaired in the major life

n the corrective

renege. are considered. The court pate for! ert

re “7 a was directly contrary to interpretive guidelines of

ployment Opportunity Commission (“EEOC’’)

and to decisions of the Eighth, Ni

as , Ninth, ae

(Appendix A-14 to A-16 recy Naor neglemnenaaR

ARGUMENT FOR GRANTING THE WRIT

Pai snoevae wo clouds an important area of the law,

pe Sh s ps among the circuits as to whether cor-

eae neko be considered in analyzing disabilities

ate vebe 2 hr wer court's holding that corrective mea-

per sop tpn eo en into account expressly conflicts with the

reyoharggse jority of circuit courts to have considered the issue.

rejects the guidance of the EEOC on this issue, thus

worsening the existing confusio

afforded the EEOC’s adieiah as to the proper deference to be

“ oon eng: the court below confused the state of the law

reds ne Joeen » ew: 4 adequately allege that United

’ - The court reasoned that the Pilot

— haplnn ge from all pilot positions at all airlines, which

pe >a ipa rule that, in applying the “regarded

yi ‘ S$ must focus upon the attitudes of the defen-

employer and not others in the industry.

6

S INTO

RRECTIVE MEASURES THROW

TURMOIL THIS IMPORTANT AREA OF THE LAW.

A. The Tenth Circuit's Decision Greatly Exacerbates

the Conflict Among the Circuits Regarding

Corrective Measures under the ADA.

oe as nye it

tially limit[ ] one or more . - . major life activities ee “ets

can be corrected with glasses or contact lenses. ne mir

usage pnt “Be gs ce hears -asborrts under the

i the issue Of W uiries ;

poctp et be made without regard to such mitigating OF -

rective measures. (Appendix A-14, A-15 nn.7 whos ftir egred

nized that its holding is contrary to the E maging

corrective measures should not be egos She Sage 0

‘oinine those courts rejecting the IC's view, Ten

pA ares significantly deepened the conflict among the circuits

in this important area of the law.

on this issue.? For a short period, however, gr vied ao.

unanimity among the courts of appeals. The Seventh, .

(holding under Rehabilitation Act against os _ ay yer .

sures of contact lenses); Wilson v. Pennsylvania — ogni , :

Supp. 898, 902-07 (E.D. Pa. 1997) (same holding anode ont sae :

Ci of East Peoria, 881 F.Supp. 1106, 1129 (C.D. Il. 1995) (senieh Sarsyc

» United Parcel Serv., 862 F. Supp. 336, 340 (W.D. gy - awn ms

EEOC interpretation) with Cline v: Fort Howard Corp.. 963 F. SUPP. 7.

1081 n.6 (E.D. Okla. 1997) (asserting that courts — ag _

impairment with regard to corrective devices), Gaddy : ona

: inate cmt < Seon. 37. nus (WD. Wis. 1996) (same),

Cokint ¥ Spy te Cio., 851 F Supp. 808, 813 (N.D. Texas 1994) (same).

5

Ninth, and Eleventh Circuits had all agreed that disabilities must

be analyzed without regard to medications, prostheses or other

possible corrective measures. Doane v. City of Omaha, 115 F.3d

624, 627 (8th Cir. June 16, 1997) (holding, specifically in the

context of impaired vision, that “analysis of whether [plaintiff] is

disabled does not include consideration of mitigating mea-

sures”), cert. denied, 118 S. Ct. 693 (1998); Roth v. Lutheran Gen.

Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995) (same holding); Har-

ris v. H&W Contracting Co., 102 F.3d 516, 520-21 (11th Cir. 1996)

(holding that disabilities must be assessed without regard to

mitigating measures); Holihan v. Lucky Stores, Inc., 87 F.3d 362,

366 (9th Cir. 1996) (same), cert. denied, 117 S. Ct. 1349 (1997). At

the circuit court level, only Ellison v. Software Spectrum, Inc., 85

F.3d 187, 191-92 n.3 (Sth Cir. 1996), contained language arguably

to the contrary.‘

On September 2, 1997, however, the Sixth Circuit held that

disability determinations should be made in light of the effect of

medications or other corrective measures. Gilday v. Mecosta

County, 124 F.3d 760, 767-68 (6th Cir. 1997) (as modified on

October 39, 1997) (discussion contained in concurrence of two of

three circuit judges). The Sixth Circuit so interpreted the lan-

guage of the ADA notwithstanding the EEOC’s contrary posi-

tion, supported by legislative history of the ADA. Jd. at 767.

The Tenth Circuit’s decision, also squarely rejecting the

EEOC’s view against consideration of corrective measures,

removes any doubt as to the extent of division among the lower

> More recently, the First and Third Circuits have reached the same

conclusion. Arnold v. United Parcel Serv., 136 F.3d 854 (ist Cir. 1998);

Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933 (3d Cir. 1997).

* The Fifth Circuit implied, but did not squarely hold, that it would take

into account corrective measures, noting that “had Congress intended that

substantial limitation be determined without regard to mitigating mea-

sures, it would have provided for coverage under § 12102(2)(A) for impair-

ments that have the potential to substantially limit a major life activity.” /d_;

but see Foreman v. Babcock & Wilcox Co., 117 F.3d 800,805 (Sth Cir. 1997)

(quoting EEOC guideline against consideration of mitigating measures

without discussion), cert. denied, 118 S. Ct. 1050 (1998).

8

courts. This conflict is now ripe for determination by this Court.

No purpose can be served by tolerating two widely divergent

interpretations of the ADA in the various courts that have consid-

ered this question, or abandoning litigants in those jurisdictions

which have not yet reached this issue to complete uncertainty as to

how this important federal legislation will be interpreted.

As the many decisions cited above amply illustrate, this

conflict impacts a very wide range of disabilities that may be

affected by various types of corrective measures. Examples of the

types of corrective measures for disabilities at issue in these cases

include medication for illnesses, e.g., Harris, supra (Graves’ dis-

ease could potentially be treated); Arnold, supra (diabetes poten-

tially could be ameliorated through medication); Matczak, supra

(same), therapy for physical or psychological disorders, e.g.,

Holihan, supra (activities undertaken as treatment for depres-

sion); Ellison, supra (breast cancer treated with radiation ther-

apy), and hearing aids or other devices. E.g., Gaddy, supra

(asthma treated with inhaler and breathing machine). The Tenth

Circuit has already extended its reasoning in the instant case to

hold that high blood pressure must be analyzed accounting for

potentially available treatment with medication. Murphy v.

United Parcel Serv., 1998 WL 105933 (10th Cir. March 11, 1998).

The view of the Sixth and Tenth, and possibly Fifth, Circuits

would thus carve out entire categories of disabled persons who

would otherwise enjoy the protections of the ADA, despite legis-

lative history to the contrary.5 The Tenth Circuit’s restriction on

the effect of the ADA significantly undercuts the goal of the Act

$ The relevant legislative history supports the view that the ADA is

applicable without regard to corrective measures. See S.Rep. No. 101-116,

at 23 (1990); H.R. Rep. No. 101-485(II), at 52, reprinted in 1990

U.S.C.C.A.N. 303, 334 (“Whether a person has a disability should be

assessed without regard to the availability of mitigating measures, such as

reasonable accommodations or auxiliary aids. For example, a person who is

hard of hearing is substantially limited in the major life activity of hearing,

even though the loss may be corrected through the use of a hearing aid. )

HLR. Rep. No. 101-485(III), at 28, reprinted in 1990 U.S.C.C._A.N. 445, 451

(“House Judiciary Report”).

9

“to protect individuals who have an underlying medical condi-

tion or other limiting impairment, but who are in fact capable of

doing the job, with or without the help of medications, prosthetic

devices, or other ameliorative measures.” Amold, 136 F.3d at

861. Such a dramatic limitation on the reach of this important

Statute warrants this Court’s attention.

B. The Tenth Circuit’s Decision Is at Odds with the

EEOC’s Interpretation and Worsens Confusion as

to Deference to Be Afforded the Agency’s Guidance.

The decision below is significant not only for the result it

reaches, but also for the lower court’s cavalier attitude toward

the EEOC’s interpretation of the controlling provisions of the

ADA. By showing no deference to the agency’s guidance, the

lower court further disrupts the already murky rule of law as to

the appropriate deference to afford.

As evidenced by the split among the circuits, there is more

than one possible interpretation of the ADA’s definition of “dis-

ability.” 42 U.S.C. § 12102(2)(A). In conjunction with its regula-

tions to carry out the directives of the ADA, see 42 U.S.C.

§ 12116 (1994) (requiring EEOC to issue regulations), the

EEOC issued its Interpretive Guidance, which construes the

provision in question to mean that both the existence of an

impairment, and the determination of whether that impairment

substantially limits a major life activity, must be made on a case

by case basis, “without regard to mitigating measures such as

medicines, or assistive or prosthetic devices.” 29 C.ER. § 1630,

App. § 1630.2(h) & (j)(2) (1997). Typically, courts would be

obligated to adhere to the agency’s construction of the statute, so

long as it is not “arbitrary, capricious, or manifestly contrary to

the statute.” Chevron USA Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 844 (1984).

This Court has instructed, however, that an agency’s inter-

pretive guidelines, as opposed to regulations promulgated under

the Administrative Procedure Act, 5 U.S.C. § 552 (1994), are not

10

necessarily binding upon courts, but rather “constitute a body of

experience and informed judgment to which courts and litigants

may properly resort for guidance.” Meritor Sav. Bank, FSB v.

Vinson, 477 U.S. 57, 65 (1986) (quoting General Elec. Co. v.

Gilbert, 429 U.S. 125, 141-42 (1976)).

Even before this case arose, courts exhibited confusion in

attempting to apply Chevron and Meritor to determine the proper

level of deference to be afforded EEOC interpretive pronounce-

ments regarding the ADA. In Harris v. H&W Contracting, supra,

the Eleventh Circuit applied Chevron, and concluded that it

could not disregard the EEOC’s Guidance. 102 F.3d at 521. The

court in Wilson v. Pennsylvania State Police Dep't, 964 F.Supp.

898, 903-05 (E.D. Pa. 1997), gave Chevron deference to the

EEOC’s guideline on corrective measures, specifically in the

context of impaired vision. The court noted that the EEOC

Guidance was subject to public notice and comment, and carried

more weight than typical interpretive rules. /d. at 903 n.4.

The Third Circuit in Matczak stated that the EEOC Guid-

ance does not command the same deference as the underlying

regulations, but still concluded that courts must give the EEOC’s

guidelines controlling weight unless plainly erroneous. 136 F.3d

at 937 (citing Thomas Jefferson University v. Shalala, 512 U.S. 504,

512 (1994)); see also Sicard v. City of Sioux City, 950 F.Supp. 1420

(N.D. Iowa 1996) (applying deference in context of impaired

vision). Other courts interpreting the same language have appar-

ently not given the EEOC Guidance controlling weight, but

some lower yet significant level of deference. E.g., Amold, 136

F.3d at 866; cf, Olson v. Dubuque Community School Dist., 137

F3d 609, 612 (8th Cir. 1998) (EEOC enforcement guidance

entitled to deference).

Each of these courts was careful to give some level of

deference to the EEOC Guidance, although they are inconsis-

tent as to exactly how much deference to give. In contrast, here

the Tenth Circuit expressly did not defer to the expertise of the

EEOC, stating only that the “Guidance may be entitled to some

consideration in our analysis.” (Appendix A-9 n.3.) The lower

1]

court's approach is at odds with Meritor and is marke

a this Court’s pattern of showing deference moni sooner

4 ro (noe geepere=—pehacarar v. Robbins, 519 U.S. 452, 117 S.

> > ome ) (giving deference to position of Secretary

prs ina legal brief); Martin v. Occupational Safety

a Health Review Com'n, 499 U.S. 144, 157 (1991) (informal

Tpretive rules are entitled to some weight on judicial review).

The EEOC’s Guidance and other publica i

tions encom

range of issues under the ADA well beyond the meaion of

corrective measures addressed by the court below. This Court's

me = ——e basis for Petitioners’ action is the allega-

po songs se gre as having an impairment by United

nagaes. staat jobs. 42 U.S.C. § 12102(2)(C) (1994).

yen rejected this claim because “the ‘class of jobs’ to

poe a o must compare themselves is that of all pilot

hd. airlines. (Appendix A-22.) This holding is

directly with the prevailing rule that it is the individual

The Seventh Circuit recently summarized the majority rule

that, unlike the actually disabled prong of the ADA, the

12

“regarded as” disabled standard centers upon the specific

employer's percepuons:

Section 12102(2)(A) looks for proof beyond the plain-

tiff’s inability to satisfy the expectations of a single

employer; to be “substantial,” a limitation on the abil-

ity to work must be one that affects the plaintiff's abil-

ity to perform a class or range of jc'rs b efore it qualifies

as a disabling limitation under the ADA. For purposes

of § 12102(2)(C), the employer's perception of the plain-

tiff’s inability to work must have a comparable breadth.

A perception that [her disability] rendered [plaintiff]

unfit to work as a psychotherapist, for example, might

bring her within the scope of 12102(2)(C).

Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, (7th Cir. 1998)

(emphasis added) (footnote and multiple citations omitted).

Under this rule, United falls within the scope of the “regarded

as” test if it perceives Petitioners as unfit to work as pilots.

In its opinion, the Tenth Circuit gave lip service to the

premise that “{i}t is the perception of the employer in the case,

not the perceptions or practices of others in the industry, that

matters.” (Appendix A-22) (citing Cook v. Rhode Island Dep't of

Mental Health, Retardation & Hosps., 10 F.3d 17, 25-26

(1st Cir. 1993) (“regarded as” prong “does not condition . . .

claims on either the quantum of a plaintiff’s application efforts

or on her prospects of finding other employment”)). This is only

logical; the perceptions of other airlines would be relevant to a

determination of whether Pilots actually are substantially

impaired in the life activity of working, but not to the issue of

whether United so perceives them. See House Judiciary Report,

at 30, 1990 U.S.C.C._AN. at 453 (person perceived by employer

as disabled is “regarded as” disabled whether or not employer's

perception is shared by others in the field).

13

‘pnited will not hire Pilots because it regards them as disabled. It

coed ne vnether other employers may hire them,

which depends } course upon whether those employers also

By implicitly revising the “re as”

below has once more broken parr Bene ay beat a

a noe tearm ely renders the “regarded as” prong meaning-

pon its decision, an employer cannot be liable unless all

cmpieyers also prohibit the plaintiff from working, in

pe ay = prety elm pig

o swermie

employer may with impunity unilaterally Geninien aes

mployees it incorrectly perceives to be disabled. In light of the

mischief the Tenth Circuit's holding would do to this provision of

the ADA, this Court’s attention is required to resolve the issue.

© United will not hire Pilots for i positions.

any of their is i

precusion that applies ony to a particular, isolated postion, Compare

Byrne of Education, 979 F.2d 560, 566 (7th Cit. 1992) (asthma pre-

aaah ae ae teaching at two specific schools, but not at other

camth Same district); Forrisi v. Bowen, 794 F2d 931

Li - 1986) (acrophobic employee precluded from performing repair-

— position at a particular facility requiring him to climb multiple stairs

| ladders). United's vision standard affects a class of jobs in that it is not

held in the analogous context of truck drivers hampered by disabilities. tine Se

Best x. Shell Oil Co, 107 F.3d 544, $48 (7h Ci. 1997) (finding emuine inv

as to whether employer regarded driver with injured knee as dis-

toms); Bandas, Giallowed him from performing any truck driving posi

( 5 naiees eatiney Rigrets, One, 139 F.3d 1147 (7th Cir. 1998) (sleep

disorder at precluded driver from sleeper trucks but not from other

driving positions offered by employer did not affect a class of jobs).

14

CONCLUSION

The decision below creates or exacerbates conflicts among

the circuits in important areas of federal employment law, and

threatens to undermine the purposes of the ADA and to render

meaningless the EEOC’s guidance. A writ of certiorari should

issue to review the Tenth Circuit's decision.

submitted this

ist day of June, 1998.

VAN AARON HUGHES

Petiti

TUCKER K. TRAUTMAN

Ireland, Stapleton, Pryor &

Pascoe, P.-C.

1675 Broadway, Suite 2600

Denver, Colorado 80202

Telephone: (303) 623-2700

SHAWN D. MITCHELL

12530 Newton Street

Broomfield, CO 80020

Telephone: (303) 464-9409

for Petit

A-1

PUBLISH

KAREN SUTTON AND KIMBERLY HINTON,

v. Plaintiffs-Appellants,

UNITED AIR LINES, INC.,

Defendant-Appellee.

No. 96-1481.

United States Court of Appeals,

Tenth Circuit.

Nov. 26, 1997.

Lisa Hogan (Patrick F. Carrigan and Beth A. Doherty Quinn

with her on the brief) of Brownstein, Hyatt, Farber & Strickland,

Denver, CO, for appellee. Shawn D. Mitchell of Ireland, Staple-

ton, Pryor & Pascoe, Denver, CO, for appellants.

Before BRORBY, BARRETT, and McKAY Circuit Judges.

BARRETT, Senior Circuit Judge.

Karen Sutton and Kimberly Hinton (collectively referred to

as Plaintiffs) appeal the district court’s dismissal of their Ameri-

cans wi Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq.,

for regional commuter airlines. However, they

a “life long goal to fly for a major air carrier.” In 1992,

United Air Lines, Inc. (United) and were invited to interview in

Denver, Colorado. At their interviews, Plaintiffs were informed

that their uncorrected vision disqualified them ne sas onal

tions with United, in that applicants for pilot ae wo

uncorrected vision of 20/100 or better in eac —_ costae’

uncorrected vision is 20/200 in the right eye and oe

eye. [FN1] Plaintiffs’ corrected vision 1s 20/20 in eyes.

; tot om

with visual acuity of 20/200 can see an object fr

saaeaw well as a person with 20/20 vision can see an object

at 200 feet.

imi i i hiring

nited discriminated against them in the hising

cy tn ge

eee ee sion, and/or

the oe ee ee asserted they are disabl ed under hao

pos gcemns their uncorrected vision substan tially ate ad

major life activity of seeing. They averred their set me ee

are permanent and that without corrective measures, ress

“effectively be unable to see” well enough to —— egg ao

everyday activities such as driving, watching te yor: .

ing. In addition, Plaintiffs alleged United regaree vole

Fisabled j violation of the ADA because United’s policy

pooere vision of 20/100 or better blocks —

ye Sane =

from an entire class of employment, global espe pe wit

any objective evidence of job relatedness or ty.

istri d United's

Au 28, 1996, the district court grante< .

PE dismiss 3 . The court concluded that oe A ngeearen

Complaint failed to state a claim under the ot Sha

court ruled that Plaintiffs were not disabled wi oe tate 0

f the ADA because their vision did not substant a

pe life activity. The court stated that with corrective me on

Plaintiffs’ were “able to function identically to individuals wi

A-3

ADA. Millions of Americans suffer visual impairments no less

serious that those of the Plaintiffs. Under such an expansive

reading, the term ‘disabled’ would become a meaningless phrase,

subverting the policies and purposes of the ADA and distorting

the class the ADA was meant to protect.” /d. at *5. With respect

to Plaintiffs’ claim that United regarded them as disabled in

violation of the ADA, the district court found no support for

Plaintiffs’ allegation that United regarded them as substantially

impaired in the major life activity of seeing based on stereotype,

myth, or unsubstantiated fears. » Id. At best, the court reasoned

that Plaintiffs established that United regarded them as “unable

to satisfy the requirements of a particular passenger airline pilot

position.” Id. at *6.

On appeal, Plaintiffs contend the district court erred in

dismissing their Amended Complaint for failure to state a claim

under the ADA. Plaintiffs assert that they alleged sufficient facts

to establish that: (1) they were qualified applicants with a disabil-

ity because they are substantially limited in the major life activity

of seeing, and (2) United regarded them as having a substantially

limiting impairment because its policy deprives them of employ-

ment throughout the global air carrier industry with no rational

job-related basis. Plaintiffs argue that the district court erred in

evaluating their physical impairment, their vision, with the bene-

fit of corrective measures, in direct contradiction to the Equal

Employment Opportunity Commission’s (EEOC) Interpretive

Guidance, which provides that the determination of whether an

individual has a physical impairment and whether an individual

is disabled within the meaning of the ADA must be done without

regard to mitigating or corrective measures.

United responds that Plaintiffs’ vision does not constitute a

“physical or mental impairment” within the meaning of the

ADA and that, even if it does, it does not “substantially limit” a

major life activity. First, United contends that a minor, relatively

common condition, such as Plaintiffs’ nearsightedness and sub-

sequent need for glasses, is not an impairment under the ADA.

Second, United asserts that even if Plaintiffs are impaired within

A-4

the meaning of the ADA, the EEOC's ee eee

stating that disability determinations be made wit rors = ~

mitigating OF corrective measures, 1S In direct - oats

ADA‘s statutory requirement that a disability P eee

mental impairment that “substantially me «sere ago

maior life activities of such individual. Te

USS.C. § 12101(2). United argues that to one hs coo

without regard to mitigating measures would ~ pose ae

statutory requirement we = bey omen tt pte scaw nl

limiting. United reasons that ! nein orortmag

tive measures to mitigate the effects 2 = pe et Coete

degree such that there Is no substantial imitatic “ ae

ivi i wal is not disabled within the meaning

actly, Sn Ee te asserts that Plaintiffs = apse od

substantive evidence it regarded them as anything ot wut conga

unable to meet the rational job-related safety requi

the jobs they sought. zi,

We review the district court's dismissal of a won wml

failure to state a claim upon which relief may be Lap a, 2

Chemical Weapons Working Group, Inc. v. Unit beh oe J

the Army, 111 F.3d 1485, 1490 (10th Cir.1997). “We phe oo

dismissal under Fed.R.Civ.P. 12(b)(6) only when it 9 Me —

he inl a eel op al wel pene

at would entitle (them i

quail of the roapn = eed re ent | evo —

i ost favorable to the plaintill|s}. :

na Fd 1215, 1224 (10th Cir.) (quoting Fuller v. me or

1016, 1020 (10th Cir.1996)), cert. denied, — US. fe i sa “

_— LEd.2d — (1997). With this standard in mind,

Plaintiffs’ ADA claims.

Discussion

vidual with a disability because of the disability of such ree

in regard to job application procedures, the hiring, gee

or discharge of employees, employee compensation, } ,

A-5

and other terms, conditions, and privileges of employment.”

{[FN2] 42 U.S.C. S 12112(a). See Bolton v. Scrivner, Inc., 36 F.3d

939, 942 (10th Cir.1994) (quoting 42 U.S.C. § 12112(a)), cert.

denied, 513 U.S. 1152, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995).

The ADA defines a “qualified individual with a disability” as “an

individual with a disability who, with or without reasonable

accommodation, can perform the essential functions of the

employment position that such individual holds or desires.” 42

U.S.C. S 12111(8). See White v. York Int'l Corp., 45 F.3d 357, 360

(10th Cir.1995) (quoting 42 U.S.C. § 12111(8)).

FN2. In this analysis, we rely on cases interpreting both the ADA

and the Rehabilitation Act of 1973, 29 U.S.C. S 701 et seq.,

because the standards are largely the same. See Andrews v. Ohio,

164 F.3d 803, 807 (6th Cir.1997) (concluding “cases construing

one statute are instructive in construing the other’); Wooten v.

Farmland Foods, 58 F.3d 382, 385 n. 2 (8th Cir.1995) (“cases

interpreting either [ADA or Rehabilitation Act] will be instruc-

tive for this analysis” of the ADA); Bolton v. Scrivner, Inc., 36 F.3d

939, 943 (10th Cir.1994) (“Congress intended that the relevant

caselaw developed under the Rehabilitation Act be generally

applicable to the term ‘disability’ as used in the ADA.””) (quot-

ing 29 C.ER. § 1630, App. 1630.2(g)), cert. denied, 513 U.S. 1152,

115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995).

To establish a claim under the ADA, Plaintiffs must demon-

strate that: (1) they are disabled persons within the meaning of

the ADA; (2) they are qualified, i.e., able to perform the essen-

tial functions of the job, with or without reasonable accommoda-

tion (which they must describe); and (3) United discriminated

against them in its employment decision (the job application

procedure and/or hiring process) because of their alleged dis-

ability. See Siemon v. AT&T Corp., 117 F.3d 1173, 1175 (10th

Cir.1997); White, 45 F.3d at 360-61.

Taking all Plaintiffs’ allegations in their Amended Com-

plaint as true, as we must, Plaintiffs have established they are

“qualified” for the position of commercial airline pilot and that

United refused to continue their interviews (or hire them) due to

A-6

ili ision. Plaintiffs are

i d disability, their uncorrected vision. ffs are

~ poate airline pilots with regional commuter —

each holds an airline transport pilot license, soenctlige OE -

United’s requirement for a commercial license, e r

recorded thousands of hours of — re we ayy 0

h has a First-Class med cert from

yom Administration (FAA). Additionally, United sent =

plaintiff a letter confirming that her uncorrected vision, oe

plaintiff’s alleged disability, disqualified her ae wag oe

ited pilot. Thus, at issue in this case, is whether Piai

tg hes them as “individuals with a disability” within the

meaning of the ADA. | =

The ADA defines a “disability” as “(A) a physical or —

impairment that substantially limits one or more of the major li :

ivities of such individual; (B) a record of such an waaae :

or (C) being regarded as having such an impairme on b ainer

§ 12102(2). The statutory requirement that disab ty nap

tions be made “with respect to the individual,’ contempla

individualized, and case-by-case determination of ~ erp

iven impairment substantially limits a major life activity 0 +

individual. Runnebaum v. NationsBank — pre dae :

Cir.1997) (en banc ) (citing v. Natione

pry pe ae Inc., 53 F.3d 55, 59-60 (4th - eed

(collecting cases holding that a prey - of — must be om

on a case-by-case basis)). See also omeyer V. Stanley ct

7th Cir.1996) (holding tha

Assocs., Inc., 91 F.3d 959, 962 ( oldin, iy

determination of disability must be made on an pooengenge

case-by-case basis”); Katz v. City Metal Co., Inc., 87 F. : , -

(ist Cir.1996) (same); Lowe v. Angelos Italian yapecprat sol

F.3d 1170, 1174 (10th Cir.1996) (applying factors

alized manner).

Here, Plaintiffs allege they ee “disabled” verte hin

ing of the subparagraphs (A) anu 1 C) because heir ee,

vision is a physical impairment tuat oe Stoine

major life activity of seeing and United regarded “oe ye

a substantially limiting impairment when it disq

A-7

from all airline pilot positions. We address each of Plaintiffs’

contentions in turn.

I. 42 U.S.C. S 12102(2)(A)—Actual Disability

Subparagraph (A) defines a “disability” as “a physical or

mental impairment that substantially limits one or more of the

major life activities” of the individual. » 42 U.S.C. § 12102(2)(A).

Therefore, to qualify as having a “disability” pursuant to subpar-

agraph (A), Plaintiffs must establish (1) that their vision is a

“physical or mental impairment;” and (2) if their vision is an

impairment, that it “substantially limits one or more of the[ir]

major life activities.” See id.

1. Physical or Mental Impairment

Plaintiffs must establish that their vision is a “physical or

mental impairment.” See id. The ADA does not define a “physi-

cal or mental impairment.” Hence, we are confronted with a

question of statutory interpretation. Our inquiry begins with an

examination of the language of the statute itself. Ramah Navajo

Chapter v. Lujan, 112 F3d 1455, 1460 (10th Cir.1997). “‘When

the terms of the statute are clear and unambiguous, that lan-

guage is controlling absent rare and exceptional circumstances.””

Id. (quoting United States v. Thompson, 941 F.2d 1074, 1077 (10th

Cir.1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1667, 118 L.Ed.2d

388 (1992) (quotation omitted)). In addition, “[w]hen a word is

not defined by statute, we normally construe it in accord with its

ordinary or natural meaning.” Smith v. United States, 508 U.S.

223, 228, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993).

“[C]ommon and ordinary usage may be obtained by reference to

a dictionary.” United States v. Roberts, 88 F3d 872, 877 (10th

Cir.1996).

The term “impairment” is not defined by the statute. How-

ever, the statute does require that the impairment “substantially

limit” a major life activity. See 42 U.S.C. § 12102(2)(A). Thus,

the impairment must be significant, and not merely trivial. Welsh

v. City of Tulsa, Okl., 977 F.2d 1415, 1417 (10th Cir.1992). See also

A-8

Runne i t must

um, 123 F.3d at 167 (“Because the impairment mu

Seen ‘substantial limitation’ on ‘one or more of ae ve

activities,’ the impairment must be significant, = Te

ial.””); Byrne v. Board of Educ., Sch. of West Allis- ree timer ?»

” eas 560, 564 (7th Cir.1992) (“The statute s ve os reo ed

limiting adjectives ‘substantial’ and ‘major emphi Sao

impairment must be a significant one.”); Fonsi a ent

F.2d 931, 933-34 (4th Cir.1986) (concluding that {t] - —

language, requiring a substantial limitation of pane a >

ity, emphasizes that the impairm ent must be a sign exp cml

In addition, Webster's Dictionary defines a Hg ay oer

worse by or as if by diminishing in some Lage fare a ot

ster’s Ninth New Collegiate Dictionary J > ( ae nie

Black’s Law Dictionary 677 (Sth ed. 1981) (“To we Sas no

worse, to lessen in power, diminish, or relax, or ot Sot Od

wOrs ‘njurious manner.”); Ballentine’s Law Dictionary 4

=d. 1969) (“To make worse, to diminish in quality, value, exce

lence, or strength, to deteriorate.”’).

i iti ulgated by the

also guided by the definition prom

moo inits hesarh_ rm issued to me rape a Saati

9 CER. § 1630.1(a); 42 S.C. :

vane to issue regulations to implement wen | of arse

The regulations define a “physical or mental impai

iologi i dition, cosmetic disfig-

hysiological disorder, or con ;

oicn anne ne loss affecting one or more of the postal

ing body systems: neurological, musculoskeletal, specis “

organs, respiratory (including speech nrg 2 = .

reproductive, “899 digestive, genito-urinary,

phatic, skin and endocrine, Or 2

(2) Any mental or psychological disorder, such as men

i i ional or mental ill-

c brain syndrome, emotion

a “cad specie earning disabilities. 29 CFR. § 1630.2(h).

ist 1 i i f the ADA, the

her assist in the interpretation oO

a... published an Interpretive Guidance on Title I ~ ars

Americans with Disabilities Act. 29 C.ER. § 1630, App.

A-9

the EEOC’s Interpretative Guidance, “[t}he existence of an

impairment is to be determined without regard to mitigating

measures such as medicines, or assistive or prosthetic devices.”

[FN3] 29 C.ER. § 1630, App. § 1630.2(h) para. 2.

FN3. It is well established that we must defer to the EEOC’s

regulatory definition unless it is “arbitrary, capricious, or mani-

festly contrary to the statute.” Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct.

2778, 2782, 81 L.Ed.2d 694 (1984). However, although we give

great deference to the EEOC’s interpretation of the ADA found

in the regulations promulgated under the express authority of

Congress and the ADA itself, we do not do the same for inter-

pretative guidance promulgated under the Administrative Pro-

cedure Act. See Headrick v. Rockwell Int'l Corp., 24 F.3d 1272,

1282 (10th Cir.1994) (no special deference due to Department of

Labor comment, which is a “purely interpretive rule’) (citing

Chrysler Corp. v. Brown, 441 U.S. 281, 301- 04, 99 S.Ct. 1705,

1717-19, 60 L.Ed.2d 208 (1979) (explaining distinction between

interpretative rules and substantive or legislative rules)). Hence,

while the EEOC’s Interpretive Guidance may be entitled to

some consideration in our analysis, it does not carry the force of

law and is not entitled to any special deference under Chevron.

Accordingly, we must determine whether Plaintiffs’ vision

makes worse or diminishes in a material or significant respect

any of the enumerated body systems. See 29 C.E.R. § 1630.2(h).

We will evaluate Plaintiffs’ vision in the uncorrected state, with-

out the benefit of mitigating or corrective measures, because the

EEOC’s Interpretive Guidance is reasonable and consistent with

the statutory mandates themselves. The fact that a disorder or

condition may be mitigated or correctable does not affect the

underlying nature of the disorder or condition. If the underlying

disorder or condition makes worse or diminishes in a material

respect any of the enumerated body systems of the individual,

then it should be considered an “impairment,” regardless of

whether the individual compensates for this worsening or dimin-

ishment by corrective measures. See Roth v. Lutheran Gen. Hosp.,

A-10

57 F.3d 1446, 1454 (7th Cir.1995) (concluding impairment deter-

mination made without regard to mitigating measures).

In addition, “[i]t is important to distinguish between condi-

tions that are impairments and physical, psychological, environ-

mental, cultural and economic characteristics that are not

impairments.” 29 C.F.R. § 1630, App. S 1630.2(h) para. 3. Hence,

impairment does not include: physical characteristics such as eye

color, hair color, left-handedness, height, weight, or muscle tone

that are within the “normal” range and are not the result of a

physiological disorder; characteristic predisposition to illness or

disease; pregnancy; common personality traits such as poor judg-

ment or quick temper where these are not the symptoms of a

mental or psychological disorder; or environmental, cultural or

economic disadvantages such as poverty, lack of education or a

prison record. Jd. See Andrews v. Ohio, 104 F.3d 803, 810 (6th

Cir.1997) (holding physical characteristics of excessive weight

and lack of cardio-respiratory endurance and strength not

impairments under the ADA); Daley v. Koch, 892 F.2d 212, 215

(2nd Cir.1989) (holding in Rehabilitation Act case that personal-

ity traits of “poor judgment, irresponsible behavior and poor

impulse control” could be described as commonplace and “in no

way r{ose] to the level of an impairment”); Tudyman v. United

Airlines, 608 F.Supp. 739, 746 (C.D.Cal.1984) (finding body

builder’s “unique musculoskelital [sic] system and body composi-

tion” not an impairment because it is not the result of a “physio-

logical disorder [ ],” “cosmetic disfigurement,” or “anatomical

loss”); Trembczsynski v. City of Calumet City, No. 87-C-0961, 1987

WL 16604 (N.D.IIl. Aug.31, 1987) (“Being slightly myopic [20/40

uncorrected vision] is a physical characteristic, not... an

‘impairment’ as contemplated by the [Rehabilitation] Act.”).

Compare Cook v. Rhode Island, Dep’t of Mental Health, Retarda-

tion, & Hosps., 10 F.3d 17, 23 (1st Cir.1993) (concluding “morbid

obesity” may be physical impairment).

them from engaging in normal eve iviti

watchi nd tyday activities, such as, driv-

ing, television, and shopping. After careful considera-

A-12

Plaintiffs must also establish that their physical impairment,

their vision, “substantially limits one or more of the[ir] major life

activities.” See 42 U.S.C. § 12102(2)(A). The ADA does not

define either “substantially limits” or “major life activity.”

Therefore, we are again confronted with questions of statutory

interpretation. We begin our analysis with the term “major life

activity.” While the statute itself does not define a “major life

activity,” the ADA regulations adopt the definition found in the

Rehabilitation Act regulations, 34 C.F.R. § 104. Bolton, 36 F.3d at

942. As defined, a “major life activity” includes, but is not limited

to, “functions such as caring for oneself, performing manual

and working.” 29 C.F.R. § 1630.2(i). See MacDonald v. Delta Air

Lines, Inc., 94 F.3d 1437, 1444 (10th Cir.1996) (adopting regula-

tion’s definition of “major life activities”) (quoting 29

C.FR. § 1630.2(i)); Lowe, 87 F.3d at 1173 (including sitting,

standing, lifting and reaching from 29 C.F.R. § 1630,

App. § 1630.2(i)).

In their Amended Complaint, Plaintiffs alleged they are

substantially limited in the major life activity of seeing. Inasmuch

as seeing is expressly included in the EEOC’s definition of major

life activities, which has been previously adopted by this court,

we do not decide what other activities may qualify and we now

turn to consider whether Plaintiffs’ physical impairment “sub-

stantially limits” their major life activity of seeing.

Pursuant to the ADA regulations, in order for a physical or

mental impairment to be “substantially limiting,” the individual

must be:

(i) Unable to perform a major life activity that the average

person in the general population can perform, or

(ii) Significantly restricted as to the condition, manner or

duration under which an individual can perform a particular

major life activity as compared to the condition, manner, or

CER. S$ 1630.2¢02) See MacDonald, 94 F Me as qucting

29C.ER.S Sao Lowe, 87 F3d at 1173 Ai evn

cared st manner, or duration of their ability to see as com-

into con esneies ao ay tog

chm _ eration the three listed factors. See 29

yo oh 630.2(j)(1)(i) and (ii). Plaintiffs have made no allega-

coed Wik Peet & unable to see [FNS] Hence, we are

conce tiffs’ vision as compared to the vision of the

average person in the general population.

ee ee ee ithout

their vision impairment withou respect to these mitigating mea-

sures. Plaintiffs rely on the EEOC’s Interpretive Guidance

A-14

;, , eo derermination of

1630.2(j), which provides that [t}he termination

Or eae ividual is substantially limited in a major life

ingly, Plaintiffs argue that they are ae of

rected vision substantially limits their major life activi

seeing. |

FN6. On appeal, we do not consider the effects, if any, ——

surgery, such as radial keratotomy, may have on the “ose ncy

or long term impact of Plaintiffs’ vision. However, we a meaye

fal that as technology advances so must our conside

these questions.

ivity. United argues that to evaluate whether an individual

pope atrar a without regard to mitigating OF corrective mea

, Interpretive Guidance is correct © disability inquiries

Heol be made without regard to mitigating or corrective mea-

as being in direct conflict with the statutory language requiring a

; ee earl 624, 627 (8th

| F.3d 624,

Doane v. City of Omaha, 115 3d 62:

pat. (stating “analysis of whether [plaintiff] is disabled does

A-15

not include consideration of mitigating measures”); Har-

ris v. H & W Contracting Co., 102 F.3d 516, 520-21 (11th Cir.1996)

(holding EEOC’s interpretation is consistent with the ADA’s

legislative history, thus, an individual's disability must be

assessed without regard to mitigating measures); Holihan v.

Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996) (stating deter-

mination made without regard to mitigating measures without

discussion or application), cert. denied, — U.S. —, 117 S.Ct.

1349, 137 L.Ed.2d 506 (1997); Fallacaro v. Richardson, 965

F.Supp. 87, 93 (D.D.C.1997) (“This Court finds that the EEOC’s

no mitigating measures’ interpretation is eminently reasonable,

consistent with the language and purpose of the Rehabilitation

Act, and supported by the legislative history of the ADA.”);

Wilson v. Pennsylvania State Police Dep't, 964 F.Supp. 898,

902-907 (E.D.Pa.1997) (expressly adopting EEOC guidance);

Sarsycki v. United Parcel Serv., 862 F.Supp. 336, 340

(W.D.Okla.1994) (relying on EEOC interpretation as authorita-

tive without discussion).

FN8. See Gilday v. Mecosta County, 124 F.3d 760, 767-68 (6th

Cir.1997) (holding EEOC’s interpretive guidance in conflict with

statutory language and disability determinations should be made

taking into consideration any mitigating measures) (2-1 deci-

sion); Cline v. Fort Howard Corp., 963 F.Supp. 1075, 1081 n. 6

(E.D.Okla.1997) (recognizing split of authority and determining

that “the better reasoned approach in the context of vision is one

which evaluates the limitation with regard to the use and effec-

tiveness of corrective devises”); Gaddy v. Four B Corp., 953

F.Supp. 331, 337 (D.Kan.1997) (“EEOC Interpretive Guideline

§ 1630.2(j)’s pre-medicated perspective is in direct conflict with

the ADA’s express statutory language . . . ”); Moore v. City of

Overland Park, 950 F.Supp. 1081, 1088 (D.Kan.1996) (same);

Murphy v. United Parcel Serv., Inc., 946 F.Supp. 872, 881

(D.Kan.1996) (rejecting “without” portion of § 1630.2(j)

because “plain language of the ADA conflicts with the EEOC’s

Interpretive Guidance”); Schluter v. Industrial Coils, Inc., 928

F.Supp. 1437, 1445 (W.D.Wis.1996) (“EEOC’s interpretation is

in direct conflict with the language of the statute that requires

A-16

intiffs i cases to show that an impairment ‘substantially

a aon nee Coghlan v. HJ. Heinz Co., 851 F.Supp. 808,

813 (N.D.Texas 1994) (concluding “EEOC interpretation

requires that one not having a limitation be considered as oe

set anctSer abe Esse emer pe

ial limitation’); 1 v. :

en reg F.3d 187, 191-192 n. 3 (Sth Cir.1996) —

“had Congress intended that substantial limitation be . a

mined without regard to mitigating measures, It would “om

provided for coverage under § 12102(2)(A) for impairments ~

have the potential to substantially limit a major life pm Me

Chandler v. City of Dallas, 2 F.3d 1385, 1390 (Sth Cir.1993) C :

person is not handicapped if his vision can be correcte ~

20/200.”), cert. denied, 511 U.S. 1011, 114S.Ct. 1386, aaa

61 (1994); Sweet v. Electronic Data Sys., Inc., No. 95-Civ.- .

1996 WL 204471, at *5 (S.D.N.Y.1996) (visual my nc

20/20 in one eye and correctable to 20/80 in other eye oe

qualify as a “disability” because it does not oon ocenay ey

ability to participate in any major life activity); Deckert J ~ Ae

No. 93-1295, 1995 WL 580074 (D.Kan. Sept. 6, n

(rejecting EEOC interpretation), aff'd on other grounds, > 1

F.3d 669 (Table) (10th Cir.1996).

joi i jected this portion

We join those courts which have rejecte

of § 1630.24) of the EEOC’s Interpretive Guidance. We =

that this portion of the EEOC’s Interpretive Guidance is it

direct conflict with the plain language of the ADA. The determi-

nation of whether an individual’s impairment substantially wows

a major life activity should take into consideration mitigating ¢

corrective measures utilized by the individual. In making disabil i

ity determinations, we are concerned with whether the at

ment affects the individual in fact, not whether it wou

hypothetically affect the individual without the use of corrective

measures. 7 ag

i ion of the EEOC’s Interpretive Guidance is no

only = de conflict with the statute, but is also comer d

inconsistent with other portions. In discussing “substanti ly

A-17

limit” generally, the Interpretive Guidance states: Many impair-

ments do not impact an individual's life to the degree that they

constitute disabling impairments. An impairment rises to the

level of disability if the impairment substantially limits one or

more of the individual’s major life activities . . .

The ADA and this part, like the Rehabilitation Act of 1973,

do not attempt a “laundry list” of impairments that are “disabili-

ties.” The determination of whether an individual has a disability

is not necessarily based on the name or diagnosis of the impair-

ment the person has, but rather on the effect of that impairment

on the life of the individual. Some impairments may be disabling

for particular individuals but not for others, depending on the

Stage of the disease-or disorder, the presence of other impair-

ments that combine to make the impairment disabling or any

number of other factors. 29 CER. § 1630, App. § 1630.2(j) para

1-2 (emphasis added). Thus, the EEOC recognized it is the

actual effect on the individual's life that is important in deter-

mining whether an individual is disabled under the ADA.

Furthermore, in discussing whether an individual is dis-

abled under the “regarded as” prong of the ADA, 42

U.S.C. § 12102(2)(C), because the employer “regards” the indi-

vidual as having a substantially limiting impairment when in fact

the individual's impairment is not substantially limiting, the

Interpretive Guidance uses the example of “an employee [who]

has controlled high blood pressure that is not substantially limit-

ing.” Id. at § 1630.2(1) para. 6 (emphasis added). Under this

example, the employee is not actually disabled because in the

controlled state the impairment does not “substantially limit” a

major life activity. The employee’s controlled high blood pres-

sure does not affect, in fact, the ability to perform a major life

activity.

Accordingly, to state a prima facie case and survive

United’s motion to dismiss, Plaintiffs’ vision in its corrected state

must “substantially limit” their major life activity of seeing.

Plaintiffs cannot make this showing. It is undisputed that Plain-

tiffs’ corrected vision is “20/20 or better.” Thus, while Plaintiffs’

A-18

uncorrected vision would undoubtedly “*903 substantially limit”

their major life activity of seeing, this is a hypothetical situation.

In fact, Plaintiffs do not limit their normal daily activities to

those that could be performed with their uncorrected vision.

Plaintiffs admit that with their corrective measures they “func-

tion identically to individuals without a similar impairment.”

Plaintiffs merely don their eye glasses (or contact lenses) and go

about all their normal daily activities in the same or similar

condition, manner, or duration as the average person in the

general population. Hence, Plaintiffs can prove no set of facts

upon which relief may be granted on this claim. Plaintiffs cannot

have it both ways. They are either disabled because their uncor-

rected vision substantially restricts their major live activity of

seeing and, thus, they are not qualified individuals for a pilot

position with United, or they are qualified for the position

because their vision is correctable and does not substantially

limit their major life activity of seeing. See Murphy v. United

Parcel Serv., Inc., 946 F.Supp. 872, 878 (D.Kan.1996) (defendant

“is trying to have it both ways” by claiming he is disabled due to

high blood pressure, but that it is controlled sufficiently that he

can perform the job).

Il. 42 U.S.C. $ 12102(2)(C)—Regarded As Disabled

Subparagraph (C) defines a “disability,” as “being regarded

as having” a physical or mental impairment that substantially

limits one or more of the major life activities of the individual. 42

U.S.C. § 12102(2)(C). The regulations provide three ways an

individual is “regarded as” being disabled: (1) the individual:

“{hjas a physical or mental impairment that does not substan-

tially limit major life activities but is treated . . . as constituting

such limitation;” (2) the individual “[h]as a physical or mental

impairment that substantially limits major life activities only as a

result of the attitudes of others toward such impairment;” or

(3) the individual “{h]as none of the impairments defined in [29

C.FR. § 1630.2(h)(1) and (2) ] but is treated . . . as having a

substantially limiting impairment.” 29 C.F.R. § 1630.2(1)(1)-(3).

See MacDonald, 94 F.3d at 1444 (quoting and adopting 29 C.ER.

A-19

when other people treat that

vhen other p tre person as having a substantj

limiting ‘mpairment,’” regardless of whether the individual om

impairments effect upon the attitudes of

! others. Jd. See Gord

v. E.L. Hamm & Assocs., Inc., 100 F3d 907, 913 (11th Cir. 1996),

In this case Plaintiffs contend Unj

» Flaint United “regards”

em in the major life activity of working. [FN] Pees

— United perceives them as unfit to work as global

pilots because: (a) United’s policy is not limited to certain

FN9. In their Openin i inti

& Brief, Plaintiffs assert that “Unit

possi [them] “ substantially impaired in the major life cota

. g, working, or both.” (Plaintiffs-Appellants’ Opening

A-20

United responds that it did not regard them as loxce

United argues that it did not regard rn ay orig nero

limited in the major life — . penne aaa.” Uaied

ment did not preclude Plaintt s from ft ney ane se

that *904 Plaintiffs merely al o

ee abaiael safety requirements of the positions they s

{ought}.” “ ae

An employer does not necessarily ai naan aur bs

tially limited in the major life activi )

aeaail it sallovet that individual is incapable of performing 4

regard the employee as having a substantially ego oe os

ment indicates oe aig rr Bes geet 4 et ciaee

i imited in the a when

pena at eer vast impairment OF perceived rary ent

foreclosing generally the type of employment ae om & re

». Babcock & Wilcox Co., 117 F3d 800, 806 (St , Ai ond

Hileman v. City of Dallas, Tex., 115 F.3d 352, 354 (Sth Cir.19%")

(“An impairment must substantially limit ye ts pH 2 & A

eral, not merely the particular job that the plaintiff may

hold.”).

on é, ee ,

tially limits’ the major life activity of working, an — ~

show significant{ ] restrict[ion] oo agente pr won pveure

lass of jobs or a broad range of jobs In se

pad en person having comet naecing 29, CER.

d abilities.” Bolton, 3d a :

§ 1630.26)(3)(i). See MacDonald, 94 F.3d at 1444 (quoting Bol

ithi i from which

abilities, within that geographical area, ! h

on piv is also disqualified because of the yarn yd

CER. § 1630.2(j)(3)(ii)(B). See Siemon, sonra A we mr .

ing 29 C.FR. § 1630.2(j)(3)(ii)(B)); Mac fnew

1444-45 (same). A “broad range of jobs in various ¢

A-21

defined as “[t}he job from which the individual has been disqual-

ified because of an impairment, and the number and types of

other jobs not utilizing similar training, knowledge, skills or abili-

ties, within that geographical area, from which the individual is

also disqualified because of the impairment.” 29 C.F.R.

§ 1630.2(j)(ii)(C). See Siemon, 117 F.3d at 1176 (quoting 29

C.F.R. § 1630.2(j)(3)(ii)(C)); MacDonald, 94 F.3d at 1445

(same). However, “[t}he 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). See Siemon, 117

F.3d at 1176 (quoting 29 C.FR. § 1630.2(j)(3)(i)); MacDonald, 94

F.3d at 1445 (“If neither of these definitions is met, and an

individual instead shows only that he is unable ‘to perform a

single, particular job,’ . . . the regulations and case law make

clear that he has not shown that he is substantial[ly] limit[ed] in

the major life activity of working.””’); Wooten, 58 F.3d at 386

(holding that under the ADA, “‘working’ does not mean working

at a particular job of that person’s choice”’); Bolton, 36 F.3d at

942 (quoting 29 C.F.R. § 1630.2(j)(3)(i)); Welsh, 977 F.2d at 1419

(holding that “an impairment that an employer perceives as

limiting an individual’s ability to perform only one job is not a

handicap under the Act”).

Therefore, in order to establish a disability under the

“regarded as” prong of the ADA with respect to the major life

activity of working, an individual must show that the employer

regarded him or her as being substantially limited in performing

either a class of jobs or a broad range of jobs in various classes. In

this case, we are concerned with whether Plaintiffs can present

any set of facts based on their Amended Complaint establishing

that United treated Plaintiffs as having a substantially limiting

impairment. To do so, Plaintiffs must establish United’s disquali-

fication of them from all pilot positions as a significant restric-

tion on their ability to perform a class of jobs. [FN10] See

Foreman, 117 F.3d at 806 (“the question is whether Foreman was

treated by [defendants] as having an impairment that substan-

tially limits a major life activity”); MacDonald, 94 F.3d at 1445

(concluding that to establish a disability plaintiff must show

A-22

defendant regarded him as being substantially limited in per-

forming a class of jobs). We hold that Plaintiffs cannot make this

showing. Taking all Plaintiffs’ allegations as true, Plaintiffs can

establish only that their physical impairment, their uncorrected

vision, prevents them from working for United as a pilot; a

single, particular job. They cannot show disqualification from a

“class of jobs.”

FN10. At oral argument, United stated that Plaintiffs were not

disqualified from its non-passenger pilot positions. However, for

the purposes of this appeal, we will assume Plaintiffs were dis-

qualified from “all pilot positions” as they alleged in their

Amended Complaint.

We are concerned with whether United regards Plaintiffs as

“disabled,” not whether the airline industry as a whole regards

individuals with uncorrected vision of 20/100 or worse as “sub-

stantially limited” in a major life activity. It is the perception of

the employer in the case, not the perceptions or practices of

others in the industry, that matters. See Cook, 10 F.3d at 25-26

(using example demonstrating focus is on employer in question

not other employers in the industry). However, we do examine

the airline industry to assist in determining whether Plaintiffs’

impairment substantially limits their employment generally in a

“class of jobs.”

The “class of jobs” Plaintiffs argue United disqualifies

them from is that of “global airline pilot.” However, this descrip-

tion is too narrow to constitute “class of jobs.” A “class of jobs”

consists of jobs that utilize “similar training, knowledge, skills or

abilities.” 29 C.ER. § 1630, App. § 1630.2(j)(3)(ii)(B). As Plain-

tiffs’ point out in their Amended Complaint, “[t}here is nothing

unique about the job activities of United pilots that distinguishes

United’s requirements from other airlines.” (Plaintiffs-Appei-

lants’ Appendix at 10, P 38(g)). Thus, the “class of jobs” to which

Plaintiffs must compare themselves is that of all pilot positions at

all airlines, because they all require the same or similar training,

knowledge, skills, or abilities. This class would include, but not

A-23

be limited to, all pilot positi

. ot positions at global airlines, nati ir-

ae airlines, and phar nrendgeorene See

.g. McKay v. Toyota Motor Mfg., US.A.. Inc., 110 |

Ay ae eater earn diartn eee fate

ssue included all manuf

jobs not only narrow range of assembly li ete.

ne ar line manuiacturing j

a repetitive motion or frequent lifting of ce em

are ema 34 F.3d at 1445 (“[T]axiing aircraft is

‘a class of jobs,’ nor ‘a broad range of jobs in various

we a ae ‘a Single, particular job.”); Wooten, 58 F.3d

concluding plaintiffs’ carpal tun ! ' —

vent[ed] him from performin hy yal 0a

vent| g a narrow range of

ve g a nar ge of meatpackin

~ : ft benated v, Ingalls Shipbuilding, 53 F3d 723, 107 (Sth

z ee fe se impairment did not prevent plaintiff from work-

; soahies . ~" ne pre a only those requiring substan-

; Welsh, .2d at 1419 (“an impai

employer Perceives as limiting an individual's ability i os to

only one job [firefighter] is not a handicap”’). re.

For example, “an individual wh

a . \ O cannot be a commerci

ae because of a@ minor vision impairment, but “ep

se nen te ee eee or a pilot for a courier service

# no bstantially limited in the major life activi of

sone foes ra : <8 App. § ——e para. 15. With this

example, the | hu an individual who is “not substan-

tially limited in the ability to eure

perform any other major life activi

and, with regard to working, [i ta rnd

g, [is] only unable to perform ei

particular specialized job or a narrow of; ree

| range of jobs.” Jd. S§

mea mao Pa nd 2 CE. RAIN) a

Welsh); , 977 F. inability “to perform onl

ody epee naa — the [Rehabilitation] Act”) Daley 892

: ing ared unsuitable for the articul D0sI

tion of police officer is not a substantial limitati : ajor life

on of p ffi limitation of a major lif

a2tivity.”); Forrisi, 794 F.2d at 934 (“ane aha

i ‘ f mployer Coes not -

pet regard an employee as handicapped simply by finding the

ye ay of satisfying the singular demands of a

j 4 n, 608 F.Supp. at 746 (concludi

P : ) : clud

i poe to hire someone for a single job does not in pr of itself

itute perceiving the [person] as a handicapped individual”)

A-24

Adopting Plaintiffs’ reasoning would imply that anyone

who failed to obtain a single job because of a single requirement

of employment would become a “disabled” individual because

the employer would thus be regarding the applicant’s failure as

substantially limiting in the major life activity of working. Formisi,

794 F.2d at 935. See Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d

Cir.1996) (stating that “otherwise . . . anyone[ ] could establish

a prima facie discrimination case merely by demonstrating some

adverse action against the individual and that the employer was

aware that the employee’s characteristic placed him or her in [a

protected] group”). This reading would stand the Act on its

head. This provision of the ADA seeks to remedy perceived

disabilities that, like actual disabilities, extend beyond the iso-

lated mismatch of employer and employee. We agree with the

court’s sentiments expressed in > Hileman, “[w]e refuse to con-

strue the . . . Act as a handout to those who are in fact capable

of working in substantially similar jobs . . . ” Hileman, 115 F.3d

at 354 (discussing Rehabilitation Act).

Finally, we note that while the FAA may not believe there is

a safety concern regarding pilots with uncorrected vision of

20/100 or worse, that alone does not prevent United from

presenting evidence to the contrary, were it necessary to refute a

prima facie case of discrimination. As long as United does not

practice illegal discrimination, we discern no reason why United

cannot maintain a higher standard for safety than the FAA. It

must be remembered that the FAA sets the minimum criteria for

a pilot’s license, not the maximum. Conclusion

We hold that Plaintiffs’ Amended Complaint alleged suffi-

cient facts to support a conclusion that their uncorrected vision

constituted a physical impairment under the ADA. However, for

the foregoing reasons, we hold that Plaintiffs cannot present any

set of facts showing their vision, when viewed with mitigating and

corrective measures, substantially limits the major life activity of

seeing. Nor can Plaintiffs show United regarded them as sub-

stantially limited in a major life activity of working by finding

Plaintiffs unfit for its commercial pilot positions. Therefore, we

A-25

affirm pep ata court’s dismissal of Plaintiffs’ ADA Claims for

ate a claim upon which relief may be granted.

AFFIRMED.

A-26

United States Court of Appeals

for the Tenth Circuit

KAREN SUTTON AND KIMBERLY HINTON,

Vv.

Plaintiffs-Appellants,

UNITED AIR LINES, INC.,

Defendant-Appellee.

Case No. 96-1481.

ORDER

Filed March 3, 1998.

Before BRORBY, BARRETT, AND McKay,

Circuit Judges.

Appellants’ petition for rehearing is denied by the panel

that rendered the decision.

The suggestion for rehearing en banc was transmitted to all

of the judges of the court who are in regular active service as

required by Fed. R. App. P. 35. As no member of the panel and

no judge in regular active service on the court requested that the

court be polled, the suggestion is also denied.

Entered for the Court

PATRICK FISHER,

Clerk of the Court

by:

Deputy Clerk

A-27

KAREN SUTTON AND KIMBERLY HINTON,

v. Plaintiffs,

UNITED AIRLINES, INC.,

Defendant.

Civ. A. No. 96-S-121.

United States District Court, D. Colorado

Aug. 28, 1996.

Pryer & Pascoe, PC., Denver, for —_— es enon

Lisa Hogan, Brownstei .

ver, for Defendant." Farber & Strickland, PC., Den.

MEMORANDUM OPINION AND ORDER

SPARR, District Judge.

dans MATTER comes tore te cout onthe Dele.

Fed.R.Civ.P. 12(b)(6) (filed ursuant to

, ' 29, 1996).

reviewed the motion, the tenn 996). The court has

In reviewing 4 motion to dismi

ismiss

Fed.R.Civ.P. 12(b)(6), a district court’s role is to aeons the hanes

feasibility of the complaint; it is not to weigh the i which

reference, and matters of which judicial

notice may be taken.

Samuels gt Transp. Local 504, 992 F.2d 12, 15 (2d Cir.1993)

Applying Fed.R.Civ.P. 12(b)(6), a court should not dismiss

A-28

cause of action for failure to state a claim unless the ton

determines that the plaintiff can prove no set don bm om

entitle it to relief, even when all well- pleaded allega oe

complaint are accepted as true and construed in ty =

pa ge ae co Co. ma ty 528-29 (10th

1974); Mock v. T.G. : >» . -g

go Tri-Crown, Inc. v. American it on A oe.

908 F.2d 578, $82 (10th Cir 1980): Gri 493 US. 820 (1988).

‘2d 1147, 1148 (1 ir.), cert. ; S.

rnin the plaintiff can offer evide nce teh. an yn

i claim for relief, a motion to

poe pager a , 599 F.Supp. 1142, 1145 (D.Colo.1984).

> The Plaintiffs’ Claim

for violation of the Americans with Disabilities Act, 42 U.S.C

12101 et seq., (“the ADA’). Plaintiffs are twin hg em

currently employed as commercial airline pilots. Plain 4

applied to Defendant United for employment as ee boa

: i andi the same image as

- aired individual standing 20 feet away sees ,

rege nse person sees from 400 feet. an ed visual «90

ity of 20/200 or less constitutes legal blindness . or sect

Supplemental Security “Insurance disability classi

(Amended Complaint paragraphs 37. b. and c.)

3. Statutory Framework

The ADA forbids discrimination: against a qualified individual

with a disability because of the disability of such individual in

regard to job application procedures, the hiring, advancement,

or discharge of employees, employee compensation, job training,

and other terms, conditions, and privileges of employment. 42

U.S.C. § 12112(a) (1996). In order to state a claim under the

ADA, a plaintiff must establish: (1) that he is a disabled person

within the meaning of the ADA; (2) that he is qualified, that is,

with or without reasonable accommodation (which he must

describe), he is able to perform the essential functions of the job;

and (3) that the employer terminated him because of his disabil-

ity. Milton v. Scrivner, Inc., 53 F.3d 1118, 1123 (10th Cir.1995),

quoting White v. York Int'l Corp., 45 F3d 357, 360-61 (10th

Cir.1995). [FN2]

FN2. The language adopted in the ADA tracks that of the Reha-

bilitation Act of 1973, 29 U.S.C. S$ 701 et seq. The ADA expressly

requires its provisions to be interpreted in a way that “prevents

imposition of inconsistent or conflicting standards for the same

requirements” under the two statutes. 42 U.S.C. § 12117(b).

Congress intended relevant caselaw developed under the Reha-

bilitation Act to be generally applicable to analogous inquiries

under the ADA. White, 45 F.3d at 360; Bolton v. Scrivener, Inc. , 36

F.3d 939, 942-43 (10th Cir.1994), cert. denied, 115 S.Ct. 1104

(1995); House Report No. 101-485(I) p. 50, reprinted in 1990

U.S.C.C.AN, 322.

The court must begin by determining whether Plaintiffs are

disabled as defined by the ADA. The ADA defines “disability”

using three alternatives:

(A) a physical or mental impairment that substantially limits

one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2) (1996). See also Bolton, 36 F.3d at 942.

Plaintiffs argue that they are disabled and addition \y that

A-30

ing di . United argues that the

ted regarded them as being disabled. Unite

paren os not disabled because they have no impairment

which substantially limits any major life activities. ao =

they are, and United regards them as being, substantially pron

in the major life activity of seeing (Amended ey RE =

graphs 37, 38; Plaintiffs’ opposition brief pp. 2, 3, 6 n. 2, 12).

Although the ADA does not define “physical sy emery

“substantially limits,” “major life activities,” or being pa

as having such an impairment,” the regulations eos by

ay ee yn ee

ADA provide sign ance. son

rece Feat he , 85 F.3d 187, 190 (Sth Cir.1996) (citation

omitted). The regulations define “physical impairment” to

include: 3 a

iological disorder, or condition, cosmetic

figurement, or anatomical ss affecting one or more of

the following body systems: neurological, —.

etal, special sense organs, respiratory (including speec

organs), cardiovascular, reproductive, spate

genito-urinary, hemic and lymphatic, skin, an

endocrine; .. .

29 CER. § 1630.2(h)(1) (1996).

“Major life activities” means:

i i rforming man-

functions such as caring for oneself, per

ual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. *

i tions provides

C.ER. § 1630.2(i). The appendix to the regulations pt

Be “other major life activities include, but are not limited to,

i ing, lifti ing.” ER. Pt. 1630, Appendix

itting, standing, lifting, reaching. 29C

a Past rors tran Guidance to Title I of the ADA,

§ 1630.2(i) (1996).

The term “substantially limited” means:

jor li ivity that the aver-

i) Unable to perform a major life activity t |

Ms. Bontre in the general population can perform, or

A-31

(ii) Significantly restricted as to the condition, manner,

or duration under which an individual can perform a partic-

ular major life activity as compared to the condition, man-

ner, Or duration under which the average person in the

general population can perform that same major life

activity.

29 C.F.R. § 1630.2(j)(1). Whether an individual is substantially

limited in a major life activity is determined in light of:

(i) The nature and severity of the impairment;

(ii) The duration or expected duration of the impair-

ment; and

(iii) The permanent or long term impact, or the

expected permanent or long term impact of or resulting

from the impairment.

29 CER. § 1630.2(j)(2).

“Being regarded as having such an impairment means:

(1) Has a physical or mental impairment that does not sub-

stantially limit major life activities but is treated by a covered

entity as constituting such limitation;

(2) Has a physical or mental impairment that substantially

limits major life activities only as a result of the attitudes of

others toward impairment; or

(3) Has none of the impairments defined in paragraphs

(h)(1) or (2) of this section but is treated by a covered entity as

having substantially limiting impairment.

29 C.ER. § 1630.2(1).

4. Analysis

The issue is whether the Plaintiffs’ impairment substantially

limits any of their major life activities or whether United regards

the Plaintiffs as having such an impairment, such that they are

disabled as defined by the ADA. The court must consider the

extent to which their impairment restricts their specific activities.

A-32

EEOC Compliance Manual § 902.4(a) (1 195). Obviously, the

Plaintiffs’ ability to see without correction is affected, but, as

reflected in the statute and regulations, far more is required to

trigger coverage under 42 U.S.C. § 12102(2)(A) and (C).

First. Plaintiffs do not claim any restrictions on their activi-

ties other than their inability to obtain employment as passenger

airline pilots for United. Plaintiffs do not allege that they have

any medical restrictions. Plaintiffs do not allege any activity that

they are unable to pe: form that the average person in the general

population can perform, nor do they state that they suffer from

any significant restrictions in any activities as compared to the

average person. See 29 C.F.R. § 1630.2(1)(i) and (ii). Indeed, they

are currently employed as commercial airline pilots. Plaintiffs

concede that, with their corrective lenses, they are able to func-

tion identically to individuals without a similar impairment. An

individual is not substantially limited in a major life activity if the

limitation, when viewed in light of the factors in 29 C.FR.

§ 1630.2(j)(2), does not amount to a significant restriction when

compared with the abilities of the average person. 29 CER. Pt.

1630 App. § 1630.2()).

Second, numerous federal courts have concluded that the

need for corrective eyewear is commonplace and does not sub-

stantially limit major life activities. Roth v. Lutheran Gen’ Hosp.,

57 F3d 1446, 1454-56 (7th Cir.1995) (doctor with strabismus

(crossed eyes) was not disabled because he could read, write,

lecture, and successfully complete graduate school), Chandler v.

City of Dallas,2 F.3d 1385, 1390 (Sth Cir.), reh’g denied, 9 F.3d 105

(1993), cert. denied, 114 S.Ct. 1386 (1994) (vision correctable to

20/200 is not a “handicap” under the Rehabilitation Act); Jasany

v. United States Postal Serv., 755 F.2d 1244, 1248-50 (6th Cir.1985)

(plaintiff with crossed eyes who had difficulty operating mail-

sorting machine but who otherwise was not limited in work or

recreation was not “handicapped” under the Rehabilitation

Act); Venclauskas v. Connecticut Dept. of Pub. Safety, 921 F.Supp.

78, 80-82 (D.Conn.1995) (applicant for state police trooper

trainee who was rejected for failure to meet unaided visual acuity

A-33

standard failed to state a claim under the ADA or the Rehabilita-

meen Joyce v. Suffolk County, 911 F.Supp. 92, 96 (E.D.New

Pavey ) (candidate for county police officer position who

‘ed to meet visual acuity standard because his uncorrected

re in each eye was 20/200 but his corrected vision in each eye

as 20/20 was not ‘ handicapped” or “disabled” under the ADA

or the Rehabilitation Act); Walker v. Aberdeen-Monroe Co

Hosp., 838 F.Supp. 285, 288 (N.D.Miss.1993) (a person aes

vision is corrected to 20/30 is not “handicapped” within th

Pasion, “ get ape geen Act); Sweet v. Electronic Data

ems, Inc., : 204471, 5 A.D.Cases 853 (S.

ao 26, 1996) (plaintiff's diminished vision in one fos did not

= ne a disability’ because it did not substantially limit his

ty to participate in any major life activity). Even accepting all

of the Plaintiffs’ allegations as true, Plaintiffs have not une a

claim that the iallv limited i a ae

off alan y are substantially limited in the major life activity

. Third, the determination of whether a person’s impai

. ior aan ee mpiag! first soa major life oaieie

} is clear tha ‘si

substantially limits a major life activity At sans iiided then

ae not determine whether the impairment substantially

on rbd seme s ability to work. On the other hand, if an

ges oe not substantially limit any of the other major

‘ities, then one must determine whether the person is

substantially limited in working. EEOC Compliance Manual

§ 902.4(c). With respect to the major li oe

r lif

term “substantially limits” ane ile activity of working, the

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.

pts § 1630.2(j)(3) (1996) (emphasis added). The major life

activity of working does not necessarily mean working at the job

A-34

i iting Welsh v. City of

f one’s choice. Bolton, 36 F.3d at 942, citing

Tulsa 977 F.2d 1415 (10th Cir.1992); E.E. Black, Lid. v. ee

497 ESupp. 1088, 1099 (D.Hawaii 1980). In addition to the fac-

tors listed in 29 C.ER. § 1630.2(j)(2), the following factors may

be considered in determining whether an individual is substan-

tially limited in the major life activity of “working:

(A) The geographical area to which the individual has

reasonable access;

(B) The job from which the individual has been disqual-

ified because of an impairment, and the number and ve

of jobs utilizing similar training, knowledge, skills or ~ r

ties, within that geographical area, from which the indivi ‘

ual is also disqualified because of the impairment (class 0

jobs); and/or 3

(C) The job from which the individual has been disqual-

ified because of an impairment, and the number and —

of other jobs not utilizing similar training, —. ~

or abilities, within that geographical area, from whic :

individual is also disqualified because of the impairmen

(broad range of jobs in various classes).

29 CER. § 1630.2(j)(3)(ii) (1996). :

The Plaintiffs’ entire complaint is based on their pon gn

obtain the single, particular job of passenger airline cop hem

United. Plaintiffs are currently employed as comm we po oa

pilots, jobs that utilize training, knowledge, skills, an itie

similar to the job of passenger airline pilot. Under the meron

factors to be considered by the court, it is now oe we enmagere :

i ti imi

cannot state a claim that they are substant

major life activity of working. The Plaintiffs’ common moderate

vision impairment, although certainly an undesirable pend

nience, does not substantially limit their ability to work within

the meaning of the ADA.

A-35

Plaintiffs argue that the ADA regulations require that the

existence of a disability be determined without regard to the

effects of mitigating measures such as drugs or prosthesis, citing

29 C.ER. Pt. 1630, App. § 1630.2(h). The court recognizes that

App. § 1630.2(j) provides that “[the determination of whether an

individual is substantially limited in a major life activity must be

made on a case by case basis, without regard to mitigating mea-

sures such as medicines, or assistive or prosthetic devices.” 29

C.ER. Pt. 1630, App. § 1630.2(j); EEOC Compliance Manual

§ 902.4(c)(1). However, the part of the EEOC’s interpretation of

the regulations that Plaintiffs rely upon addresses impairment,

not disability, stating that the existence of an impairment is to be

determined without regard to mitigating measures such as

medicines, or assistive or prosthetic devices. Even if the Plain-

tiffs’ uncorrected vision would be considered an impairment, a

physical impairment, standing alone, is not necessarily a disabil-

ity as contemplated by the ADA because the statute requires an

impairment that substantially limits one or more of the major life

activities. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (Sth

Cir.1995). If the impairment does not significantly restrict a

major life activity, then the impairment is not a disability. EEOC

Compliance Manual § 902.4(c)(1).

Fourth, it is apparent that the ADA was intended to protect

only a limited class of persons; specifically, individuals who suffer

from impairments significantly more severe than those encoun-

tered by the average person in everyday life, not people who

suffer from slight shortcomings that are both minor and widely

shared. Furrisi v. Bowen, 794 F.2d 931, 934 (4th Cir.1986); Buko v.

American Medical Laboratories, Inc., 830 F.Supp. 899, 904

(E.D.Va.1993), affd, 28 F3d 1208 (4th Cir.1994). An excerpt

from the legislative history of the ADA reveals that the type of

visual impairment contemplated by the legislation is of a degree

beyond that correctable by eyeglasses or contact lenses:

For blind and visually-impaired persons, reasonable

accommodations may include adaptive hardware and

software for computers, electronics [sic] visual aids,

A-36

braille devices, talking calculators, magnifiers, audio

recordings and brailled material.

Report No. 101-485(II) p. 64, reprinted in 1990

USCA 346. To adopt a definition of “disabled” that would

include persons whose vision is correctable by eyeglasses or con-

tact lenses would result in an expansion of disability protection

beyond the logical scope of the ADA. Millions of Americans

suffer visual impairments no less serious than those of the Plain-

tiffs. Under such an expansive reading, the term ° disabled

would become a meaningless phrase, subverting the policies and

purposes of the ADA and distorting the class the ADA was

meant to protect.

Fifth, Plaintiffs cannot state a claim that United “regarded”

them as being disabled. There is no support for the allegation

that United, based on stereotype, myth, or unsubstantiated fears,

regarded Plaintiffs as substantially impaired in the major life

activity of seeing. As for the major life activity of working, the

proper test for a “regarded as” claim is whether the impairment,

as perceived, would affect the individual’s ability to find work

across the spectrum of same or similar jobs. Muller v. Automobile

Club of Southern California, 897 F.Supp. 1289, 1297

(S.D.Calif.1995) (citation omitted), Venclauskas, 1995 WL

819137 at *3-4 (citations omitted). An employer does not neces-

sarily regard an employee as handicapped simply by finding the

employee to be incapable of satisfying the singular demands ofa

particular job. Ellison, 85 F.3d at 192, quoting Fornsi, 794 F.2d at

933-34. An employer’s belief that an employee is unable to per-

form one task with an adequate safety margin does not establish

per se that the employer regards the employee as having a sub-

stantial limitation on the employee’s ability to work in general.

Hutchinson v. United Parcel Service, Inc., 883 F.Supp. 379, 396

(N.D.lowa 1995). The statutory reference to a substantial limita-

tion indicates instead that an employer regards an employee as

handicapped in his or her ability to work by finding the

employee’s impairment to foreclose generally the type of

A-37

employment involved. Ellison, 85 F.3d at 192, quoting Forrisi, 794

F.2d at 934; EEOC Compliance Manual § 902.8(f).

At most, the Plaintiffs can establish that United regarded

them as unable to satisfy the requirements of a particular passen-

ger airline pilot position. The Plaintiffs have had no difficulty

obtaining other jobs in their field prior to this one. Plaintiffs are

currently employed as commercial airline pilots. The need for

corrective eyewear in no way substantially limits the Plaintiffs’

employment generally. Joyce, 911 F.Supp. at 96.

Finally, the Plaintiffs indicate that United’s visual acuity

standards are based on its “misunderstanding” of certain govern-

ment regulations. However, the ADA does not require United to

lower or effect substantial modifications of its standards to

accommodate disabled persons. See Southeastern Community

College v. Davis, 442 U.S. 397, 413-14 (1979). Even if the Plain-

tiffs were disabled within the meaning of the statute, the ADA

does not authorize the court to compel the airlines to alter the

qualifications for passenger airline pilots.

The court concludes that the Plaintiffs cannot state a claim

that United regarded them a impaired in a way that substan-

tially limits a major life activity and, therefore, cannot state a

claim that they are disabled under the ADA.

5. Conclusion

Even after accepting all factual allegations as true and

drawing all reasonable inferences in favor of the Plaintiffs, the

court concludes that the Plaintiffs cannot state a claim under the

ADA. Plaintiffs do not support their claim with facts that would

prove that they are disabled under the ADA, and therefore, that

they are entitled to any relief under the ADA.

Accordingly, IT IS ORDERED:

1. The Defendant’s Motion to Dismiss is GRANTED.

2. This civil action is DISMISSED.

3. Upon the filing of a bill of costs with the Clerk of the

Court, the Defendant shall be entitled to recover from the Plain-

tiffs its costs in this action.