Petition for Writ of Certiorari — Wainscott v. Medusa Aggregates Co.

e Supreme Gourt, U.S

FitLFED

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89 1 9 JUN 29199

on Cc ri “ ’ a!

OFFice Of bree fet fae

IN THE

SUPREME COURT OF THE UNITED STATES

RICHARD WAINSCOTT,

Petitioner,

V.

MEDUSA AGGREGATES COMPANY,

Respondent.

On PETITION For Writ OF CERTIORARI

To Tue UNITED STATES CourRT OF APPEALS

For Tue Sixt# Circuit

PETITION FOR WRIT OF CERTIORARI

RANDY J. BLANKENSHIP N. JEFFREY BLANKENSHIP

(COUNSEL OF RECORD) MOoNOHAN, HERTZ

ROBBINS, KELLY, PATTERSON & BLANKENSHIP

& TUCKER 7711 Ewinc BouLEVARD

THE FEDERATED BUILDING Suite 100

SulTE 1400 FLORENCE, KY 41042

7 West SEVENTH STREET (606) 283-1140

CINCINNATI, OH 45202-2424

(513) 721-3330

Counsel for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO 800-890-5001

45 5eR

QUESTION PRESENTED

Whether an individual with chronic low back

syndrome who is borderline mentally retarded, functionally

illiterate, has a sixth grade education, had throughout his

employment history worked only in those jobs requiring

heavy lifting capacity and, as a result, who is deprived of a

substantial number of real work opportunities, is a “disabled”

individual within the meaning of the Americans With

Disabilities Act (“ADA”), 42 U.S.C. §12112(a)?

PARTIES TO THE PROCEEDING

Petiti

Richard Wainscott

Respondent

Medusa Aggregates Company

TABLE OF CONTENTS

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I oss 6. 5 ain b'p be aie oe ee 0a wc Vv

So Vs Ss 5's 6 oy vee 06o 6a kan ees ]

Ee hr sa oh ae bd one Ph ees ]

Statutory Provision Involved .................. ]

semoment Of the Case... ww cece cee 2

Argument for Granting Writ .................. 4

Argument 1

The decisions of the lower courts to deny

Petitioner protection as disabled under the

ADA is contrary to the EEOC’s interpretation

Sin enw 5 ded os «1b Ce OR ERE S e 7

Argument 2

The decisions of the lower courts to deny

Petitioner protection as disabled under the

ADA is inconsistent with case law from other

Oe ei eas de ak oo bela ee 12

ill

Argument 3

The decisions of the lower courts to deny

Petitioner protection as disabled under the

ADA conflicts with case law under the

Rehabilitation Act .................... 18

Argument 4

The decisions of the lower courts to deny

Petitioner protection as disabled under the

ADA is inconsistent with legislative history... . 21

SE Sec irs vag arate ero eee 23

Appendix

Appendix A :

Opinion of the United States Court of Appeals

for the Sixth Circuit, filed April 1,1999...... la

Appendix B

Opinion and Order of the United States

District Court for the Eastern District of

Kentucky, filed April7,1999............. 8a

Appendix C

Judgment of the United States District Court

for the Eastern District of Kentucky, filed

Re ty Ea 8S 4 eee ae ae oe 23a

Appendix D

Mandate of the United States Court of Appeals

for the Sixth Circuit, filed April 26, 1999 .... 24a

TABLE OF AUTHORITIES

ea en ae ‘i

ee 118 S.Ct. 2196 (1998) .... 5, 6, 11

155 F.3d 775 a Cir. a A co ae .13

ee 1996) ....5, 10, 12, 18

Eee tte an ”

meee ry: "=

eee ose pee

meee oe co Pe Peres eee 7)

ree eae ee ae

eT ee ae Hawaii 1980) ... 6, 11, 19

mere 2 <1 933 (4th Cir. 1986) ...... 14, 19

Gilday v. Mecosta County

96 F.3d 830, n. 2 (6th Cir. 1997) ........ 5, 10

eee F38 959 (hh Cie 1998) ns ... ,

een aS F.2d 1044 1208 GC 1989)... V

» G3 F560), GOCE TD ....... 6.18

se Nona Tene TI sd 9, 10

w NG R07 COC )..... 9,968

eng F.3d 1173, 1177 (6th Cit. 1996) « 6.18

ee Pee eee (N.D. Ill. 1995) ....... 12

; saudi

677 F. Supp. 357 (E.D. Pa. 1987),

affirmed, 841 F.2d 1120 (3d Cir. 1988) .. 6,9, 19

92 F.3d 1130, 1133-34 (11th Cir. 1996) ...... 12

Roush vy. Weastec, Inc.,

96 F.3d 840, 844 (6th Cir. 1996) .......... 12

vl

School Board of Nassau County v. Arline,

PU me eee 7

633 F.Supp. 367 (E.D. Pa. 1987) .......... 19

94 F.3d 484 (8th Cir. 1996) ....... 5, 10, 13, 18

Whitfield v. Pathmark Stores, Inc.,

39 F.Supp.2d 434 (D. Del. 1999) .......... 16

Statutes

UBL... SR GG SOOO onc cee occeveses l

, Fb oe a ere er re 3

y to 2 ee | PP rereeerrerers passim

a EE 6 vk dpe tuonsceeeeyyen 2, 7, 20

SEU Oe ED obec deeeweuteueeseses 3

TE v6 6 oa 0 ev 4a ea deena ween ees 7

OE Fe a ok oo 0 ha en eee eke ee ees 8

GE CPR. TFG ccc ccc erccvscees: 7

Other Authorities

Cong. R. - Senate, September 7, 1989 ............ 4,21

Cong. R. - House, 101st Cong., 2d Sess.,

freer rrr rere eer 4,21, 22

House of Representatives Report No. 101-485 (Part 3)

(101st Cong., 1st Sess.,

August 30, 1969), p. 21.0... ce ceees 6, 18

Interpretive Guidance, App. §1630.2(j) at 340-41 ....... a4

vii

Senate Report No. 100-116 (101st Cong., 1“ Sess.,

PEE ey MO IEE 0 os os occ et we che es

Viil

OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Sixth Circuit is reported at 1999 U.S. App. LEXIS 6273.

A copy of the Opinion is included in the Appendix at App. A,

la. The Opinion of the District Court for the Eastern District

of Kentucky is unreported and a copy of the Opinion is

included in the Appendix at App. B, 8a.

JURISDICTION

The United States Court of Appeals for the Sixth

Circuit issued its Opinion on April 1, 1999. This Petition for

Writ of Certiorari is filed within 90 days of the filing of the

Opinion. The Court’s jurisdiction is invoked pursuant to 28

U.S.C. §§1254(1) and 2106.

STATUTORY PROVISIONS INVOLVED

Americans With Disabilities Act

42 U.S.C. §12112(a)

(a) General Rule. No covered entity shall

discriminate 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.

Americans With Disabilities Act

42 U.S.C. §12102(2)

(2) Disability. The term “disability”

means, with respect to an individual -

(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.

STATEMENT OF THE CASE

The facts of this case are uncomplicated and

undisputed. Petitioner, Richard Wainscott, suffers from

chronic low back syndrome. Wainscott was, when this

litigation commenced, 55 years old. He had a sixth grade

education and was functionally illiterate. The evidence

demonstrated that he had always been employed in jobs

requiring heavy or very heavy lifting. Wainscott began

working for Respondent, Medusa Aggregates Company, in

1979. He began as a laborer and later became employed as a

haul unit driver at one of Respondent’s limestone quarries.

While working as a haul unit driver, Wainscott

developed a lower back problem. On March 9, 1995, his

doctor discovered that two vertebrae were out of alignment.

Wainscott reported his back problem to Respondent, but

continued to work as a haul unit driver without incident until

October, 1995. In October, 1995, Wainscott’s doctor, Dr.

Floyd Poore, reported to Respondent that Wainscott should

discontinue working as a haul unit driver. Therefore, as a

result of his injury, Petitioner was unable to perform the

heavy lifting jobs that were the source of his livelihood.

Wainscott then sought transfer to the vacant position of

laborer. Respondent refused the requested accommodation.

On October 28, 1996, Petitioner filed a Complaint in

the United States District Court, Eastern District of Kentucky,

claiming that the denial of accommodation violated the

Americans with Disabilities Act, codified at 42 U.S.C.

§12112, et seq. (hereinafter “ADA”). Wainscott claimed that

his permanent back problem qualified as a “disability” under

the ADA and that Respondent’s failure to accommodate him

violated the ADA. Wainscott offered evidence that

established that he was disqualified from all jobs in the

“heavy” and “very heavy” classes of jobs. Respondent’s

expert agreed that Wainscott could not perform any jobs in the

“heavy” and “very heavy” job classes. Throughout his work

life, Wainscott had only worked in those jobs in the heavy or

very heavy job classes. Thus, for Richard Wainscott, this

permanent back injury substantially impaired his ability to

work. Petitioner sought, among other relief, compensatory

damages resulting from Respondent’s failure to accommodate.

The District Court had jurisdiction over the original

action pursuant to 28 U.S.C. §1331 because the case

presented a federal question arising under the ADA. On

February 2, 1998, Respondent filed a Motion for Summary

3

Judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure, claiming that the evidence presented did not set

forth sufficient facts whereby a reasonable jury could

conclude that Respondent engaged in any unlawful acts

alleged in Petitioner’s complaint. Despite substantial evidence

from which a reasonable jury could conclude that Wainscott

had a disability within the meaning of the ADA, the District

Court granted Respondent’s Motion for Summary Judgment

on the sole ground that Petitioner's impairment did not rise to

the level of a disability within the meaning of the ADA. The

District Court entered judgment on April 7, 1998.

Wainscott timely appealed to the Court of Appeals for

the Sixth Circuit. On April 1, 1999, the Court of Appeals

affirmed the District Court’s judgment. Ignoring the facts,

legislative history, the EEOC’s Interpretive Guidance, cases

under the Rehabilitation Act, and cases from other Circuits

under the ADA, the District Court held that Wainscott’s

injury could not, under any set of circumstances, be severe

enough to fall under the protection of the ADA. The District

Court and the Court of Appeals reasoned that Wainscott’s

impairment disqualified him only from a “narrow range of

jobs” and, therefore, was not a disability under the ADA.

ARGUMENT FOR GRANTING WRIT

In enacting the ADA, Congress intended to protect

over 43 million Americans with disabilities.'_ The protections

' See, Cong. R. - Senate, September 7, 1989, p.

S.10714, Remarks of Sen. Hatch, noting that the ADA “really

enfranchises 43 million Americans ....” See also, Cong. R. -

House, 101st Cong., 2d Sess., May 17, 1990, p. H.2483; Remarks

4

of the ADA are not intended to safeguard the rights of just

those people in wheelchairs. Consistent with the

Congressional intent, the EEOC has established that a

physical impairment substantially limits an individual’s ability

to work if it prevents or significantly restricts the individual

from performing a class of jobs or a broad range of jobs in

various Classes. See, EEOC Technical Assistance Manual,

Volume II, EEOC Order 915.002 (March 14, 1995). In fact,

in its Technical Assistance Manual, the EEOC has specifically

noted that “a charging party is substantially limited in

working if (s)he has a back impairment that precludes him/her

from heavy lifting and, therefore, from the class of heavy

labor jobs.” The EEOC’s position has been adopted by those

courts which have directly considered the issue. See, Webb

y. Garelick Manufacturing Co., 94 F.3d 484 (8th Cir. 1996).

This Court’s recent decision in Bragdon vy. Abbott, 524 U.S.

624, 118 S.Ct. 2196 (1998) is consistent with the EEOC’s

position, as this Court noted that “the Act addresses

substantial limitations on major life activities, not utter

inabilities.” Id., at 2206. The Court in Bragdon also

recognized that deference to the EEOC’s position was

appropriate in construing the breadth of the ADA. Id., at

2209. The Sixth Circuit, from which this case has been

appealed, also has noted that the EEOC’s Interpretive

Guidance is controlling unless plainly erroneous or

inconsistent with the regulations. See, e.g., Gilday v.

Mecosta County, 96 F.3d 830, n. 2 (6th Cir. 1997). Thus,

of Rep. Conte, stating that “this bill is a declaration of

independence for 43 million disabled Americans”.

‘ See also, Cochrum v. Old Ben Coal Co., 102 F.3d

908, 911 (7th Cir. 1996), recognizing EEOC definition of “heavy

duty jobs” as a “class of jobs” for purposes of deciding if a person

is substantially limited in ability to work.

5

both Congressional history and the EEOC’s interpretation

compel a construction of the term “disability” that entitles

Wainscott to the protection of the ADA. Neither the District

Court nor the Court of Appeals attempted to distinguish the

EEOC’s position in any way. Rather, both Courts simply

ignored the EEOC’s clear language.

Additionally, this Court noted in Bragdon that the

ADA’s definition of disability, which is drawn almost

verbatim from the definition of “handicapped individual” in

the Rehabilitation Act of 1973, indicates Congress’ intention

that the term be construed according to prior regulatory

interpretations. It is also well settled in the Sixth Circuit that

the ADA is to be interpreted consistently with the

Rehabilitation Act of 1973. See, Maddox v. University of

Tennessee, 63 F.3d 843, 846 (6th Cir. 1995); Monette v.

Electronic Data Systems Corp., 90 F.3d 1173, 1177 (6th Cir.

1996). See also, House of Representatives Report No. 101-

485 (Part 3) (101st Cong., 1st Sess., August 30, 1989), p. 21.

Under the Rehabilitation Act of 1973, case law established

that an individual was substantially limited in his ability to

work and, hence, entitled to the protection of the

Rehabilitation Act, when a back impairment disqualified the

worker from employment in the heavy and very heavy

exertional classes. See, ¢.g., E.E. Black, Lid. v. Marshall,

497 F. Supp. 1088 (D. Hawaii 1980). See also, Perez v.

Philadelphia Housing Authority, 677 F. Supp. 357 (E.D. Pa.

1987), affirmed, 841 F.2d 1120 (3d Cir. 1988).

It is clear that the lower courts’ decisions to deny

Petitioner protection under the ADA is inconsistent with

legislative history, the EEOC’s interpretation of the Act, case

law under the Rehabilitation Act, and cases from other

Circuits under the ADA. The need for judicial guidance from

this Court is critical. This case presents a question of vital

national importance and application.

ARGUMENT 1

The decisions of the lower courts to deny

Petitioner protection as disabled under the

ADA is contrary to the EEOC’s

interpretation of the Act.

The lower courts’ failure to recognize Petitioner as

disabled under the ADA conflicts with the EEOC’s

interpretation of the ADA. In order to have a “disability”

under the ADA, an individual must have a (1) physical or

mental impairment that (2) substantially limits one or more of

the individual’s major life activities. 42 U.S.C. §12102(2).

The ADA’s implementing regulations define the term

“physical or mental impairment” broadly, including, inter

alia, any physiological disorder or condition significantly

affecting a major bodily system, e.g., the musculoskeletal

system. See, 45 C.F.R. §84.3(j)(2)(i)(A). Respondent

stipulated that it regards Wainscott as having a physical

impairment. Likewise, the uncontradicted medical evidence

proved that Wainscott had chronic low back syndrome, which

is an impairment of the musculoskeletal system. Thus, the

sole issue was whether this physical impairment substantially

limited Wainscott in a major life activity.

The ADA does not define the term “major life

activities,” but regulations promulgated by the EEOC to

implement Title I of the ADA provide guidance as to that

definition. 29 C.F.R. Part 1630; See, 42 U.S.C. §12116

(requiring the EEOC to issue regulations to implement-Title

I of the ADA). See also, School Board of Nassau County vy.

Arline, 480 U.S. 273, 279 (1987) (treating Rehabilitation Act

7

ee

regulations promulgated by the Department of Health and

Human Services as “an important source of guidance on the

meaning of 504 [of the Rehabilitation Act]”). The ADA

regulations adopt the definition of “major life activities”

found in the Rehabilitation Act regulations. 34 C.F.R.

§104(c); 29 C.F.R. Part 1630, Appendix to Part 630 -

Interpretive Guidance on Title I of the Americans With

Disabilities Act, 1630.2(i), Major Life Activities. The term

“major life activities,” as defined in the regulations, means:

Functions such as caring for oneself,

performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and

working.

See, 29 C.F.R. §1630.2(i). In the Case at bar, Wainscott

contended that he was substantially limited in the major life

activity of “working.”

The regulations define the term “substantially limits”

(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

duration under which the average

person in the general population could

perform that same major life activity.’

The EEOC’s’ Technical Assistance Manual

unequivocally follows the broad legislative interpretation of

the term “disability” and clearly covers Wainscott’s

impairment. The Technical Assistance Manual, Volume II,

prepared by the EEOC, EEOC Order 915.002, issued on

March 14, 1995, states at page 3:

An impairment substantially limits an

individuals ability to work if it prevents or

Significantly restricts the individual from

performing a class of jobs or a broad range of

jobs in various classes.

Citing, Perez v. Philadelphia Housing Authority, 677 F.

Supp. 357 (E.D. Pa. 1987), affirmed, 841 F.2d 1120 (3d Cir.

1988), holding that where a back injury substantially limited

the jobs in which a person could engage, the person has a

, The Appendix to the ADA regulations emphasizes

the need to compare the individual claimant with the average

person in the general population to determine if the person is

“significantly restricted” in the “major life activity” involved. The

Court must look to what effect the physical impairment has on the

particular individual seeking ADA protection. See, McKay vy.

Toyota Motor Manufacturing, 110 F.3d 369, 371 (6th Cir. 1997)

(In determining the effect of an impairment on the plaintiff's ability

‘to work, plaintiff's educational background and age were relevant

factors); Dush vy. Appleton Electric Co., 124 F.3d 957, 963 (8th

Cir. 1997) (In evaluating whether plaintiff was a qualified

individual with a disability under the ADA, special attention must

be given to circumstances surrounding the case). See also, 29

C.F.R. §1630.2, Appendix, at 403-04.

9

“disability” within the meaning of the ADA. The EEOC

cited Perez with approval in its Technical Assistance Manual.‘

The EEOC has also taken the position in its

Interpretive Guidance that disqualification from all heavy duty

jobs constitute being limited in performing a “class of jobs”

within the meaning of the ADA. Being disqualified from such

a class may constitute a disability. Webb v. Garelick

Manufacturing Co., supra. See also, Cochrum v. Old Ben

Coal Co., 102 F.3d 908, 911 (7th Cir. 1996) (recognizing the

EEOC definition of “heavy duty jobs” as a “class of jobs”).°

Wainscott is precluded from performing all jobs in the class

of heavy lifting jobs. By definition, therefore, he is

substantially limited in his ability to perform the major life

activity of working. The Sixth Circuit has held that the

EEOC’s Interpretive Guidance is binding unless plainly

erroneous or inconsistent with the regulations. Gilday v.

Macosta County, 96 F.3d 830, n. 2. See also, Harris vy. H &

W Contracting Co., 102 F.3d 516 (11th Cir. 1997) (granting

“considerable weight” to EEOC guidelines in holding that a

federal court cannot disregard interpretive guidance contained

4

The Sixth Circuit has also held that a physical

impairment substantially limits the major life activity of working

where it restricts the person’s ability to perform a class of jobs or

a broad range of jobs in various classes. See, e.g., McKay vy.

Toyota Motor Manufacturing, 110 F.3d 369, 372 (6th Cir. 1997).

4 The Court in Cochrum also held that the District

Court erred in assuming “that plenty of places would have

employed Cochrum ... Given the breadth of his ... physical

restrictions, a reasonable jury could conclude that Cochrum’s

physical impairment does substantially limit his ability to work.”

Id., at 911. Thus, the impairment must be viewed in terms of its

impact on the employee's real work opportunities.

10

in the appendix prepared by the agency charged with

enforcing the ADA).

In its Technical Assistance Manual, the EEOC

specifically noted that “a charging party is substantially

limited in working if (s)he has a back impairment that

precludes him/her from heavy lifting and, therefore, from the

class of heavy lifting labor jobs.” Citing, E.E. Black, Lid. v.

Marshall, 497 F. Supp. 1088, 1102 (D. Hawaii 1980). No

one disputed that Wainscott had a back impairment that

precluded him from heavy lifting and, therefore, from the

class of heavy lifting jobs.

By denying Petitioner protection under the ADA, the

lower courts have contradicted the guidance of the EEOC’s

Technical Assistance Manual in construing the term

“disabled.” The EEOC’s interpretation of the term

“disability” is consistent with the language of the ADA and

should have been followed. This Court has held that the

EEOC’s interpretation of the ADA’s coverage is entitled to

deference. Bragdon vy. Abbott, 524 U.S. 624, 118 S.Ct..

2196 (1998). The lower courts’ decisions limit the definition

of disability to only a narrow range of extremely debilitating

impairments. By ignoring the EEOC’s interpretation of the

term “disability,” the lower courts have emasculated the ADA

as an effective protection against disability discrimination.

ARGUMENT 2

The decisions of the lower courts to deny

Petitioner protection as disabled under the

ADA is inconsistent with case law from

other circuits.

The decisions of the lower courts to deny Petitioner

protection under the ADA is contrary to case law from other

circuits. Other Courts have held that proof of limitations

similar to those suffered by Petitioner are sufficient to

withstand summary judgment. In Cochrum vy. Old Ben Coal

Co., 102 F.3d 908, 911 (7th Cir. 1996), the Court held that

"(t]he physical restrictions Cochrum's physician placed upon

him - no overhead work, heavy lifting, or pulling and pushing

out from his body - might apply to a broad range of jobs, and

are more than job specific." In light of the breadth of

Cochrum's physical restrictions, the Court therein held that "a

reasonable jury could conclude that Cochrum's shoulder

impairment does substantially limit his ability to work." Id..

Also, in Roush v. Weastec, Inc., 96 F.3d 840, 844 (6th Cir.

1996) the plaintiff provided evidence that she had a bladder

condition that caused her such substantial pain that she could

not work without medication. She also presented evidence

that she needed to be treated by her physician monthly or

semi-monthly for infections and pain. The Court held that, on

those limited facts, the plaintiff had created a genuine issue of

material fact as to whether her bladder condition substantially

limited her working. See also, Pritchard vy. Southern

Company Services, 92 F.3d 1130, 1133-34 (11th Cir. 1996)

(holding that it was a question of fact whether symptoms of

depression, including profound fatigue and difficulty

concentrating, substantially limited ability to work);

Patterson vy. Xerox Corp., 901 F.Supp. 274, 278 (N.D. Ii.

1995) (severe back pain held to qualify as a disability under

12

the ADA); Cehrs v. Northeast Ohio Alzheimer’s Research

Center, 155 F.3d 775 (6th Cir. 1998) (holding a question of

fact existed as to whether psoriasis substantially limited

plaintiff in major life activities); Downs vy. Massachusetts Bay

Trans. Auth., 13 F.Supp.2d 130, 138 (holding the

determination of whether a given impairment is disabling is

fact-intensive precluding summary judgment).

In a more recent case, the 8th Circuit Court of Appeals

followed a similar analysis. Webb v. Garelick Manufacturing

Co., 94 F.3d 484 (8th Cir. 1996). The Plaintiff in Webb was

a director of purchasing whose duties involved significant

writing and typing. He developed a condition known as focal

dystonia, which was aggravated by writing and other

repetitive, precision hand motions. The company doctor

concurred with plaintiff's doctor that he could no longer

write and could only type a little. In determining whether

Webb had a "disability" within the meaning of the ADA, the

Court of Appeals rejected the District Court's "sweeping

holding ... that a plaintiff can never demonstrate disability as

long as there is any other job that she can perform." 94 F.3d

at 487. The Court of Appeals noted that a person was

substantially limited in the major life activity of working if he

or she is "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." 94 F.3d at 487, citing, 29

C.F.R. §1630.2(j)(3)(i). The Court noted that "[u)nder this

broad definition of substantial limitation, an ADA plaintiff

need not demonstrate that her impairment restricts her ability

to perform all jobs. Rather, as the EEOC's interpretive guide

to the Act illustrates, an individual is disabled when her

impairment merely prevents performance of a certain class of

jobs." Id.. Thus, the Court in Webb held as follows:

13

An individual who has a back condition that

prevents the individual from performing any

heavy labor job would be substantially limited

in the major life activity of working because

the individual's impairment eliminates his or

her ability to perform a class of jobs. This

would be so even if the individual were able to

perform jobs in another class, e.g., the class of

semi-skilled jobs.

Id., citing, 29 C.F.R. Part 1630.2(j)(ii).° Clearly, the Sixth

Circuit’s decision conflicts with the Eighth Circuit’s decision

in Webb.

The Court in Webb noted that in determining whether

a person is disabled, the person's expertise, background, and

job expectations are relevant factors. 94 F.3d at 487.

Accord, Jasany v. United States Postal Service, 755 F.2d

1244, 1249 (6th Cir. 1985). The Court noted,

"[f]undamentally, the ADA is concerned with preventing

substantial personal hardship in the form of significant

reduction in a person's real work opportunities." Id., at 488.

Thus, the Court must ask "whether the particular

impairment constitutes for the particular person a

significant barrier to employment." Id., at 488, ~

Forrisi v. Brown, 794 F.2d 931, 933 (4th Cir. 1986).

. The EEOC has likewise noted that the terms

"number and types of jobs" as used in the Regulations "are not

intended to require an onerous evidentiary showing. Rather, the

terms only require the presentation of evidence of general

employment demographics and/or of recognized occupational

classifications that approximate number of jobs ... from which an

individual would be excluded because of an impairment."

Interpretive Guidance, App. §1630.2(j) at 340-41.

14

also, Homeyer v. Stanley Tulchin Associates, Inc., 91 F.3d

959 (7th Cir. 1996) (reversing grant of summary judgment

where District Court failed to "undertake a meaningful

analysis" of the individual's particular situation).

The Sixth Circuit’s decision herein also conflicts with

Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d

Cir. 1998). The facts in Mondzelewski are strikingly similar

to those presented herein. Mondzelewski was a 55 year old

man with a sixth grade education. He suffered a back injury

which restricted him from lifting objects weighing more than

50 pounds and carrying objects weighing more than 25

pounds. The District Court granted summary judgment for

the employer, holding that Mondzelewski did not have a

disability within the meaning of the ADA. The Court of

Appeals reversed. The Court of Appeals held that,

considering Mondzelewski’s training, skills, and abilities, a

reasonable jury could believe that, as to him, the back

impairment substantially limited him in the major life activity

of working. 162 F.3d at 786. The Court in Mondzelewski

eschewed any bright line rules as to what impairments do or

do not constitute a disability, holding:

We accept this approach - under which an

individual’s training, skills, and abilities are

taken into account in determining whether the

individual is substantially limited in the major

life activity of working - because we owe

“substantial deference” to the EEOC

regulation in which it is set out ... and because

it is entirely reasonable. Indeed, because the

effect that a particular impairment will have on

a person’s ability to work varies depending on

that person’s background and skills, it is not

15

easy to envision how any other approach could

be taken.

162 F.3d at 784. Followed, Whitfield v. Pathmark Stores,

Inc., 39 F.Supp.2d 434 (D. Del. 1999) (Vacating prior grant

of summary judgment in light of Mondzelewski).

In addition, the Seventh Circuit Court of Appeals held

in DePaoli vy. Abbott Laboratories, 140 F.3d 668 (7th Cir.

1998) that a woman who developed tendonitis and

tenosynovitis in her right hand as a result of performing

repetitive motions on her assembly line job had a disability

which substantially limited her major life activity of working.

The Court noted that the question of whether she had a

disability with the meaning of the ADA, is “a individualized

one, and must be determined on a case-by-case basis.” Id.,

at 672. The Court held that DePaoli was suffering from a

physiological disorder or condition that affected her

musculoskeletal system - namely, her tendonitis and

tenosynovitis. Id.. Therefore, the Court assumed the

condition was sufficient to show that she had a “physical

impairment” as the term was used in 42 U.S.C. §12102(2)(A)

and 29 C.F.R. §1630.2(h)(1). Id.. The next question became

whether DePaoli’s impairment substantially limited any of her

major life activities, namely her major life activity of

working. The Court commented that the correct test of

whether an impairment substantially limits the major life

activity of working falls between two extremes. Id. On one

hand, it would not be enough for an employee to establish that

the disability prevented her from performing one particular

job. Id.. On the other hand, an employer could not escape

liability by showing that the employee is capable of generally

performing some economically viable work in the national

economy. Id.. The Court then cited the Appendix to Part

16

1630 as offering an example of a “class of job” under the

Statute:

An individual who has a back condition that

prevents the individual from performing any

heavy labor job would be substantially limited

in the major life activity of working because

the individual's impairment eliminates his or

her ability to perform a class of jobs. This

would be so even if the individual were able to

perform jobs in another class, e.g., the class of

semi-skilled jobs.

Id., at 672-73.

The Court concluded that although DePaoli’s hand was

usable for less strenuous work, her preclusion from almost

any assembly line job that required repetitive movement

meant that she was effectively eliminated from performing a

“class of jobs.” Id. at 673.

Finally, in another Seventh Circuit case, Best v. Shell

Oil Company, 107 F.3d 544 (7th Cir. 1997), the Court

addressed the question of whether Best, a truck driver, was

substantially limited in the major life activity of working due

to a knee injury or whether the knee injury simply precluded

him from performing one narrow job for one employer. 107

F.3d at 546. The Court held that a reasonable trier of fact

could determine that Best’s injured knee substantially limited

his ability to work as a truck driver. Id.. The Court noted

that although the record did not show how many truck driving

jobs required the ability to operate a truck with a clutch or

how often the painful configuration of the particular seat

involved occurs, testimony suggested that it was not

17

uncommon. Id. This was enough, the Court concluded, to

require a trial of that issue. Id..

Herein, all of the evidence (including Defendant’s

vocational expert. Dr. Luca Conte), established that

Wainscott’s back impairment precluded him from performing

any jobs in the “heavy” and “very heavy” job classes.

According to the EEOC in its Technical Assistance Manual,

this evidence sufficed to create a genuine issue of material fact

as to whether he had a disability within the meaning of the

ADA. The Sixth Circuit’s rejection of the EEOC’s

interpretation conflicts with decisions from the Third

(Mondzelewski), Seventh (Cochrum and DePaoli), and Eighth

(Webb) Circuits. This Court should accept review to

reconcile this conflict.

ARGUMENT 3

The decisions of the lower courts to deny

Petitioner protection as disabled under the

ADA conflicts with case law under the

Rehabilitation Act.

It is well settled that the ADA is to be interpreted

consistently with the Rehabilitation Act of 1973. See,

Maddox v. University of Tennessee, 63 F.3d 843, 846 (6th

Cir. 1995); Monette vy, Electronic Data Systems Corp., 90

F.3d 1173, 1177 (6th Cir. 1996). See also, House of

Representatives Report No. 101-485 (Part 3) (101st Cong., 2d

Sess., May 15, 1990, p. 27) and Senate Report No. 100-116

(101st Cong., 1st Sess., August 30, 1989, p. 21). Under the

Rehabilitation Act, case law established that an individual was

substantially limited in his ability to work and, hence entitled

to the protection of the Rehabilitation Act, when a back

impairment disqualified the worker from employment in the

18

heavy and very heavy exertional classes of jobs. See, e.g.,

E.E. Black, Lid. v. Marshall, 497 F.Supp. 1088 (D. Hawaii

1980). See also, Perez v. Philadelphia Housing Authority,

677 F.Supp. 357 (E.D. Pa. 1987), affirmed, 841 F.2d 1120

(3d Cir. 1988). The lower court’s decisions to deny

Wainscott protection under the ADA contradicts case law

decided under the Rehabilitation Act of 1973.

Under the Rehabilitation Act, it was well settled, prior

to the adoption of the ADA, that the determination of "who is

a handicapped person under the Act is best suited to a case by

case determination." Forrisi v. Brown, 794 F.2d 931, 933

(4th Cir. 1986). Under the Rehabilitation Act, "[t]he inquiry

is, of necessity, an individualized one - whether the particuiar

impairment constitutes for the particular person a significant

barrier to employment." 794 F.2d at 933. See also, Elstner

y. Southwestern Bell Telephone Co., 659 F.Supp. 1328, 1342

(S.D. Tex. 1987). The Court must examine "the impaired

individual ... and not just the impairment in the abstract."

Perez v. Philadelphia Housing Authority, 677 F.Supp. 357,

360 (E.D. Pa. 1987), affirmed, 841 F.2d 1120 (3d Cir.

1988). See also, Trimble v. Carlin, 633 F.Supp. 367 (E.D.

Pa. 1987) (Knee injury sustained at work constituted

handicap). Thus, in Perez, the Court held that a plaintiff with

low back syndrome was entitled to protection of the Act. 677

F.Supp. at 360-61(E.D. Pa. 1987). See also, Coley v.

Secretary of the Army, 689 F.Supp. 519 (D. Md. 1987)

(Osteoarthritis which restricted ability to do manual labor

covered under Act).

It is apparent from the lower courts’ rulings that they

did not defer to settled case law under the Rehabilitation Act.

Neither the District Court nor the Circuit Court of Appeals

analyzed the effect of Wainscott’s impairment on his ability to

work, in view of his illiteracy and his work history. Rather,

19

both Courts simply implied that the effect on the particular

individual is immaterial and that only the medical nature of

the physical impairment determined whether Wainscott had a

“disability” under the ADA. This approach is, simply put,

wrong. The ADA, like its predecessor the Rehabilitation Act,

commands an individualized determination. 42 U.S.C.

§12102(2) states explicitly that the disability determination

must be made “with respect to an individual.” A back

impairment of the type suffered by Wainscott could,

conceivably, not qualify as a “disability” if Wainscott were a

well-educated person with a sedentary work history.

However, Wainscott is not a well-educated person with a

sedentary work history. Richard Wainscott is functionally

illiterate. He has a sixth grade education. Throughout his

life, he has worked only in those jobs requiring heavy or very

heavy lifting. Had the Courts below focused on the real effect

of Wainscott’s physical impairment, and construed all of the

evidence in a light most favorable to him, the Courts below

could have seen that a jury could reasonably have concluded

that Wainscott had a physical impairment and that this

physical impairment substantially limited him in the major life

activity of working. Rather than considering whether as to

this particular individual, the particular impairment

constituted a significant barrier to employment, the Courts

below seem to have focused on their perceived concern that,

allowing protection for back injuries under the ADA would

open up the flood gates of litigation. However, this concern

is ill placed. For some individuals, a back injury will be an

impairment. For some individuals, such as Richard

Wainscott, a back injury should be a disability within the

meaning of the ADA. For other individuals, however, a back

impairment may have no effect on that person’s ability to

work. The District Court’s and the Court of Appeals’

decisions to deny protection failed to consider whether, for

Richard Wainscott, his particular impairment constituted a

20

significant barrier to employment. The undisputed evidence

established that Wainscott was barred from all jobs in the

heavy and very heavy exertional job classes. As such, for

him, this back impairment constituted a significant barrier to

employment. He is, therefore, entitled to the protection of the

ADA.

ARGUMENT 4

The decisions of the lower courts to deny

Petitioner protection as disabled under the

ADA is inconsistent with legislative history.

In denying Wainscott the protection of the ADA, the

Courts below have frustrated the Congressional intent that the

Act’s definition of disability be broadly interpreted to

encompass a wide-range of impairments, not just those

traditionally associated with the word “disability.” When

enacted, the ADA was hailed as “landmark legislation.”

Cong. R. - House, 101st Cong., 2d Sess., May 17, 1990, p.

H.2412; Remarks of Rep. Gordon, May +7, 1990. The

ADA’s chief sponsor, Senator Harkin of Iowa, commented on

the floor of the Senate that the ADA was designed to protect

“43 million Americans with disabilities.” Cong. R. - Senate,

September 7, 1989, p. S.10711. The ADA was intended to

be broad in its protections, as Senator Harkin noted that it

would protect “one out of every six of out citizenry.” Id. It

was intended to protect “[t]hose who are non-disabled by the

conventional definition....” Id. Senator Hatch likewise noted

that the ADA “really enfranchises 43 million Americans who

have not had the type of co-equal treatment in our society that

persons with disabilities really deserve.” Id., p. S.10714.

Senator Kennedy likewise commented that the bill was

intended to protect 43 million individuals. Id., p. $.10717.

Senator Armstrong of Colorado, a vociferous opponent of the

21

ADA, objected to the sponsors’ statements regarding who the

ADA protected. He commented: “What concerns me is the

thought that this disability might include some things which

by an ordinary definition we would not expect to be

included....” Id., p. S.10753.

Senator Helms, elaborating on Senator Armstrong’s

comments, discussed the definition of “individuals with

disabilities” and asked Senator Harkin, “{I]t must have been

the intent of $.933's authors that it be an all encompassing

bill; is that correct?” Senator Harkin responded, “[T]hat is

correct.” Id., p. S.10765. Expanding on this response,

Senator Harkin explained the definition of disability under the

ADA and stated “ ... [W]e obviously could not restrict it [the

definition of disability] and say just those people who use

wheelchairs [are covered by the Act]. We had to cover all

kinds of disabilities, mental as well as physical.” Id., p.

S.10768. See also, p. S.10783, in which Senator Humphrey

complained that “we are not simply talking about the blind,

the deaf, or persons confined to wheelchairs....”” Thus,

Congress was well aware that it had adopted a very broad

definition of the term “disability,” and, in fact, intended to do

so. Congress clearly did not intend that the ADA would

protect only the blind, the deaf, or those confined to

: Likewise, in the House, Representative Conte

stated that “this bill is a Declaration of Independence for 43 million

disabled Americans.” Cong. R. - House, 101st Cong., 2d Sess.,

p. H.2483. Congressman Armey, a vocal opponent of the ADA,

complained that “the scope of this legislation is unprecedented. It

defined disability so broadly that 43 million Americans, nearly one-

fifth of the U.S. population, will be covered by it. That enormous

number, of course, includes millions of people that most Americans

would not consider disabled....” Cong. R. - House, 101st Cong.,

2d Sess., May 17, 1990, p. H.2448.

22

wheelchairs. Indeed, Congress tacitly approved the

application of the law to those persons who were not deemed

disabled under conventional thought.

The lower courts explicitly ignored the clear call of

Congress for a broad interpretation of disability under the

ADA when it denied Wainscott the protection of the ADA.

The narrow interpretation of disability placed upon by the

lower courts cannot be reconciled with Congress’ clear

objective for an expansive definition.

CONCLUSION

The decisions of the lower courts to deny Petitioner

protection under the ADA is inconsistent with EEOC’s

interpretation of the Act, cases from other circuits under the

ADA, case law under the Rehabilitation Act and the

legislative intent.. Therefore, the Petition for Writ of

Certiorari should be granted.

/s

Randy J. Blankenship (#0034594)

ROBBINS, KELLY, PATTERSON

& TUCKER

The Federated Building, Suite 1400

7 West Seventh Street

Cincinnati, Ohio 45202-2424

(513) 721-3330

/s/

N. Jeffrey Blankenship (#0029634)

MONOHAN, HERTZ & BLANKENSHIP

7711 Ewing Boulevard, Suite 100

Florence, Kentucky 41042

(606) 283-1140

Attorneys for Petitioners

23

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed April 1, 1999]

No. 98-5562

RICHARD WAINSCOTT

Plaintiff-Appellant,

We

MEDUSA AGGREGATES COMPANY

Defendant-Appellee.

— SS Si YS HI wen ~~

OPINION

BEFORE: SILER, DAUGHTREY and GILMAN, Circuit

Judges.

RONALD LEE GILMAN, Circuit Judge. Richard

Wainscott, a long-term employee of Medusa Aggregates

Company, ceased working for the company in 1995 due to

problems with his lower back. When Medusa denied his

request for a job transfer because his impairment could not be

reasonably accommodated, Wainscott filed suit under the

Americans with Disabilities Act, 42 U.S.C. § 12112(a). The

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6" Circuit Opinion - 4/1/99

district court granted summary judgment in favor of Medusa

on the ground that Wainscott was not disabled as that term is

defined in the statute. For the reasons set forth below, we

AFFIRM the district court's decision.

I. BACKGROUND

Medusa operates a series of limestone quarries

throughout the United States, including one in Butler,

Kentucky where Wainscott was employed. Wainscott was

hired in 1979. Shortly thereafter, he was assigned to work as

a haul unit operator. The haul unit is a truck that is used to

transport limestone after it is stripped from the walls of the

quarry. Wainscott would collect the limestone and take it to

the "crusher plant" at the facility, where the rock would be

broken into smaller pieces. Because of the irregular surfaces

in the quarry, Wainscott often experienced a rough ride on his

repeated trips throughout the day. The parties agree that

Wainscott's performance was satisfactory throughout his

employment.

In March of 1995, Wainscott began experiencing

lower back pain. Shortly thereafter, his wife informed the

plant supervisor that Dr. Floyd Poore, Wainscott's personal

physician, had determined that two of her husband's vertebrae

were out of alignment. But Wainscott continued the

performance of his duties without interruption. On October

25, 1995, however, Wainscott gave his supervisor a written

statement from Dr. Poore advising Medusa that Wainscott

should no longer drive the haul unit. Wainscott also missed

five days of work at that time. Upon further inquiry from the

company, Dr. Poore stated that Wainscott should be restricted

from driving the haul unit, should avoid repetitive bending,

2a

6" Circuit Opinion - 4/1/99

and should not lift over fifty pounds. Dr. Poore also was of

the opinion that the restrictions were permanent.

To confirm Dr. Poore's diagnosis, Medusa had

Wainscott examined by Dr. Gregory Snider. Dr. Snider

found evidence of "lumbosacral strain," as well as abdominal

pain for which he could find no obvious source. He

recommended that Wainscott work no more than eight hours

per day, five days per week, and that he be given a fifteen

minute break after every two hours of driving. Although Dr.

Snider initially thought that Wainscott's limitations were

temporary, he later concluded that Wainscott had suffered a

permanent five percent loss of function to his body as a

whole.

Wainscott subsequently requested that he be allowed

to return to work as a laborer. Tim Adkins, Medusa's safety

director, sent Dr. Poore a job description and inquired

whether Wainscott was capable of performing the laborer's

job. Dr. Poore concluded that although Wainscott could

perform the majority of the listed duties (11 out of 16), he

would be unable to perform a number of the tasks that

involved the moving or lifting of heavy objects. After

reviewing Dr. Poore's recommendations, Medusa determined

that Wainscott's request for the job transfer could not be

accommodated. Wainscott has not returned to work since

October of 1995.

In October of 1996, Wainscott filed suit in the United

States District Court for the Eastern District of Kentucky,

alleging violations of the Americans with Disabilities Act

("ADA") and a similar Kentucky statute, K.R.S. § 344.010 -

.500. Medusa moved for summary judgment on the basis that

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6" Circuit Opinion - 4/1/99

Wainscott was not disabled within the meaning of the ADA,

was not "otherwise qualified” for the job he sought, and could

not be reasonably accommodated. The district court granted

summary judgment in favor of Medusa, finding that Wainscott

was not disabled as defined by the ADA. Wainscott now

appeals the district court's ruling as to his ADA claim. He

makes no mention of his state-law cause of action.

II. ANALYSIS

A. Standard of review

We review de novo the district court's grant of

summary judgment. See, e.g., Smith v. Ameritech, 129 F.3d

857, 863 (6th Cir. 1997). Summary judgment is appropriate

when there are no issues of material fact in dispute and the

moving party is entitled to judgment as a matter of law. See

FED. R. CIV. PRO. 56(C). In deciding a motion for

summary judgment, the court must view the evidence and

draw all reasonable inferences in favor of the non-moving

party. See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The judge is not "to weigh

the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

A genuine issue for trial is presented when there is sufficient

"evidence on which the jury could reasonably find for the

plaintiff” /d at 252.

B. Definition of "disability"

4a

6" Circuit Opinion - 4/1/99

The ADA prohibits an employer from discriminating

"against a qualified individual with a disability because of the

disability of such individual." 42 U.S.C. § 12112(a). A

person seeking relief under the ADA for termination must

establish that he or she (1) is a disabled person within the

meaning of the Act, (2) is qualified to perform the essential

functions of his or her job with or without reasonable

accommodation, and (3) has suffered an adverse employment

decision because of such disability. See Monette v. Electronic

Data Sys. Corp., 90 F.3d 1173, 1179 (6th Cir. 1996).

Because the district court concluded that Wainscott had not

established that he was a disabled individual within the

meaning of the Act, it did not consider whether he was

qualified to perform the essential functions of his job with or

without accommodation, or whether he was discharged

because of his alleged disability.

The essential issue on appeal is whether Wainscott is

disabled. The ADA provides the following definition oi

disability:

The term "disability" means, with respect to an —

individual--

(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). Wainscott does not claim to have a

"record of [] impairment” or that he has been "regarded as

having {] an impairment." We must therefore determine

5a

6" Circuit Opinion - 4/1/99

whether Wainscott has "a physical or mental impairment that

substantially limits one or more major life activities."

The ADA empowers the Equal Employment

Opportunity Commission ("EEOC") to promulgate regulations

that will further define the scope and reach of the statute. See

42 U.S.C. § 12116. The EEOC has defined "major life

activity" to include the ability to work. See 29 C.F.R. §

1630.2(i). Wainscott contends that his back problems

substantially limit this ability.

In deciding whether an individual is substant‘ally

limited in a major life activity, the courts should consider the

nature and severity of the impairment, the duration of the

impairment, and the expected impact of the impairment. See

Penny v. United Parcel Service, 128 F.3 d 408, 414 (6th Cir.

1997). An ADA plaintiff must demonstrate that the injury in

question significantly restricts his or her ability to perform

either (a) a class of jobs or (b) a broad range of jobs within

various classes. See McKay v. Toyota Motor Corp., 110 F.3d

369, 372 (6th Cir. 1997) ("An impairment that disqualifies a

person from only a narrow range of jobs is not considered a

substantially limiting one."). Although McKay does not

attempt to define "class of jobs" or "narrow range of jobs," it

found that McKay had proved only that she was unable to

perform "the narrow range of assembly line manufacturing

jobs that require repetitive motion or frequent lifting of more

than ten pounds,” but not the "class of jobs at issue,

manufacturing jobs.” /d.

The record clearly shows that Wainscott's condition

does not significantly restrict his ability to perform either a

class of jobs or a broad range of jobs in various classes as

6a

6” Circuit Opinion - 4/1/99

compared to the average person having comparable training,

skills, and abilities. As defined in McKay, the class of jobs

at issue here is "manual labor." Wainscott's back condition

has resulted in only a five percent loss of function to his body

as a whole, a much more modest diminution of function than

the one at issue in McKay. He remains capable of doing

manual labor. Since he stopped working for Medusa,

Wainscott has engaged in a number of physical activities,

including raising and harvesting tobacco, repairing various

engines, and doing odd jobs. Much like the plaintiff in

McKay, Wainscott's evidence supports a conclusion that his

impairment disqualifies him only from the narrow range, of

jobs that require lifting more than fifty pounds, driving on

rough surfaces, or bending repetitively.

Wainscott's injury is permanent, but the limitations in

question are simply not severe enough to fall under the

protection of the ADA. Although Wainscott's expert claims

that Wainscott is precluded from performing "heavy strength

Capacity"jobs, the expert admits that this only disqualifies

Wainscott from approximately 18,000 of the 110,000 jobs that

he was able to perform before his injury. This is a "narrow

range of jobs" as defined in McKay. In sum, Wainscott might

be entitled to appropriate relief under the Kentucky Workers'

Compensation Act (K.R.S. Chapter 342), but he is not so

entitled under the ADA.

Ill. CONCLUSION

For the reasons set forth above, we AFFIRM the

district court's grant of summary judgment in favor of

Medusa.

7a

APPENDIX B

UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF KENTUCKY AT COVINGTON

[Filed April 7, 1999]

Civil Action No. 96-232

RICHARD WAINSCOTT

Plaintiff

Ve

MEDUSA AGGREGATES COMPANY

Defendant.

ee

OPINION & ORDER

On March 26, 1998, oral argument was held in this

matter. N. Jeffrey Blankenship and Randy J. Blankenship

represented plaintiff; Donald B. Hordes and Toby Schisler

represented defendant. The proceedings were recorded by

official court reporter, Amy Blosser.

Factual Background

Defendant Medusa Aggregates Co. (‘Medusa’), an

Iowa corporation, is headquartered in Cleveland, Ohio, and

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District Court Opinion & Order - 4/7/98

operates a series of limestone quarries throughout the United

States, including a quarry in Butler, Kentucky ("Butler"). At

its Butler facility, Medusa employs approximately thirty-nine

hourly employees. (See Gividen dep., at p. 13). These

employees are represented by the International Union of

Operating Engineers Local 18. (See Wainscott dep., at p. 22,

78, exhibit # 5).

On April 16, 1979, Medusa hired Plaintiff Richard

Wainscott and shortly thereafter assigned him to work as a

‘haul unit" operator. (See Wainscott dep., at p. 24, exhibit #

2). A ‘haul unit' is a truck used to transport limestone after

it is stripped from the quarry walls. (See Gividen dep., at p.

54-56). As a haul unit operator, Mr. Wainscott's duties

required him to drive the haul unit from the quarry pit to the

various crusher plants located throughout the Butler quarry

facility, at which machinery breaks the limestone into smaller

sizes to meet customer demand. (See id. at p. 54-55). Due

to the irregular surfaces throughout the quarry facility, Mr.

Wainscott often experienced a rough ride when driving the

truck. (See Wainscott dep., at p. 30). Nonetheless, the job

required Mr. Wainscott to make repeated trips throughout the

day. (See Wainscott dep., at p. 33-34). The parties agree

that Mr. Wainscott satisfactorily performed his duties

throughout his employment.

Mr. Wainscott began developing lower back problems

in March 1995. On March 9, 1995, his wife called the plant

supervisor, Richard Voyles, to inform him that Mr. Wainscott

had two vertebrae out of alignment. (See Voyles dep., at p.

59, exhibit # J). The condition did not limit Mr. Wainscott in

his employment because he continued to perform his duties,

without complaint, until October 1995. (See Wainscott dep.,

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District Court Opinion & Order - 4/7/98

at p. 50).

On October 25, 1995, Mr. Wainscott gave Mr. Voyles

a written doctor's statement from Dr. Floyd G. Poore, his

personal physician. (See Voyles dep., at p. 96). According

to the statement, Mr. Wainscott suffered from recurring lower

back pain and, as a result, could no longer drive the truck.

(doc. #41, at exhibit # B). Dr. Poore suggested that Medusa

change Mr. Wainscott's position to either ‘mechanic's helper

or service plant [worker]." (See id.). Additionally, the note

indicated that Mr. Wainscott should be excused from work for

five days. (See id.). Mr. Wainscott informed Mr. Voyles

that he thought the injury was caused by the seat in his truck.

(See Wainscott dep., at p. 50-51). Mr. Voyles made a note

of this in Mr. Wainscott's personnel file, stating that Dr.

Poore's note was not sufficiently informative to result in the

change of Mr. Wainscott's job. (See Voyles dep., at exhibit

# K). Additionally, he indicated that he told Mr. Wainscott

that it may be necessary for him to visit Medusa's doctor.

(See id.).

On October 30, 1995, Tim Adkins, Medusa's safety

director, sent a note to Dr. Poore in which he requested

additional information about Mr. Wainscott's limitations and

asked whether the limitations were permanent or temporary.

(See doc. # 40, at exhibit # C; doc. # 59, at exhibit # E). Dr.

Poore responded by informing Mr. Adkins that Mr. Wainscott

should not drive the truck because of the effect that the

bouncing would have on his back, that he should not engage

in repetitive bending, and that he should not lift over fifty

pounds. (See doc. # 40, at exhibit #C; doc. # 59, at exhibit

#E). Additionally, Dr. Poore informed Mr. Adkins that the

restrictions placed on Mr. Wainscott were permanent. (See

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District Court Opinion & Order - 4/7/98

id.)

To confirm Dr. Poore's diagnosis, Medusa had Mr.

Wainscott examined by Dr. Gregory T. Snider, an

occupational specialist at the Lexington Clinic in Lexington,

Kentucky, on November 7, 1995. (doc. # 41, at exhibit # D

(Report of Dr. Gregory T. Snider)). Based on that

examination, Dr. Snider diagnosed Mr. Wainscott with

lumbosacral strain and ‘abdominal pain of undetermined

etiology.' (See id. at ¢ 5). In his report, Dr. Snider

recommended that Mr. Wainscott be limited to a five-day

work week and an eight-hour work day. (See id. at 46). He

also recommended that Mr. Wainscott be allowed to take 15

minute breaks after every two hours of driving. (See id.).

Initially, Dr. Snider indicated that he did not think that Mr.

Wainscott's restrictions would be permanent, but later he

indicated that Mr. Wainscott suffered a permanent whole

person impairment of five percent. (Snider dep., at p. 43-45).

In response to a request by Mr. Wainscott to return to

work as a laborer, Tim Adkins, the defendant's safety

director, sent Dr. Poore a detailed description of the laborer

position in an effort to determine whether Mr. Wainscott

could meet the physical requirements of the job. On July 9,

1996, Dr. Poor. reviewed the sixteen duties and indicated that

Mr. Wainscott could not perform the following duties on the

list:

5. Moving water pumps :

Hooking/unhooking 6" and 8" high

pressure water hoses. Standing,

reaching, lifting up to 60 Ibs.

6. Moving water hoses - Standing,

lla

District Court Opinion & Order - 4/7/98

lifting, 6" and 8" high pressure hoses

in 20' sections. Approximate weight:

95 Ibs.

7. Changing screens - Standing,

reaching, pulling, lifting weights up to

65 Ibs.

8. Sweeping and cleaning up inside

buildings - Standing, bending, lifting

weighs up to 60 Ibs.

**k*# kK *

14. Cleaning under truck scales -

Standing, crawling, pulling, lifting

weights up to 60 Ibs. Shoveling to

approximately 4 “2 feet overhead.

See doc. # 41, exhibit # I). Additionally, Dr. Poor. reiterated

his previous restriction that Mr. Wainscott could not lift more

than fifty pounds. Dr. Poor., however, indicated that Mr.

Wainscott could perform the remaining duties, which included

the following:

1. Mowing with push mower -

Pushing/pulling 40 lb. mower up and

down-uneven slopes.

2. Trimming grass with weed eater -

Standing (sometimes in bent position),

walking, carrying 12 lb. weed eater on

uneven slopes.

3. Shoveling under conveyors’ -

Standing, reaching, bending, lifting

weights up to 30 Ibs.

4. Operating small utility loader (skid

steer) for cleanup - Climbing,

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District Court Opinion & Order - 4/7/98

pushing, pulling controls.

xe KK

9. Assisting with conveyor repairs -

Standing, reaching, pulling, lifting

weights up to 35 Ibs.

10. Washing under conveyors with water

hoses - Standing, lifting, carrying 20'

sections of 2" water hoses.

Approximate weight: 50 Ibs.

11. Steam cleaning and pressure washing

equipment - Standing, reaching,

climbing.

12. Painting - Standing, reaching,

climbing, lifting, carrying 20'

extension ladder. Approximate weight:

50 Ibs.

13. Operat[ing] water truck - Reaching,

pulling, climbing, moving hoses,

lifting weights up to 35 Ibs. Traveling

same roadways as haul trucks.

* kK K

15. Cleaning out wheel wash - Standing,

lifting, carrying 20' sections of 2" high

pressure hoses® Approximate weight:

50 Ibs.

16. _‘ Filling in for vacancies in classified

jobs - Performs tasks in all other

operations in and around quarry, up to

and including driving the haul truck.

(See id.). After reviewing Dr. Poore's restrictions, Messrs.

Zingales, Gividen and Voyles concluded that Mr. Wainscott

could not be accommodated. (See Zingales dep., at p. 89).

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District Court Opinion & Order - 4/7/98

Analysis

The Americans with Disabilities Act ("ADA")

prohibits 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) (1995). The ADA places on covered

employers the affirmative duty to “make reasonable

accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability who is an

applicant or employee, unless such covered entity can

demonstrate that the accommodation would impose an undue

hardship ...." § 12112(b)(5)(A). In the instant case, Mr.

Wainscott alleges that Medusa discriminated against him by

failing to employ him as a laborer with weight and hour

restrictions and by failing to allow him to return to his prior

job as a haul unit operator with the restrictions suggested by

Dr. Snider.

In order to prove discrimination, Mr. Wainscott must

show: (1) that he is disabled; (2) that he is qualified for the

job, with or without reasonable accommodation; and (3) that

he was denied a reasonable accommodation. See Penny v.

United Parcel Service, 128 F.3d 408, 414 (6th Cir.

1997)(citing Roush vy. Weastec, Inc., 96 F.3d 840, 843 (6th

Cir. 1996)). The first step in the analysis requires a

determination that he has a disability covered by the ADA.

See 42 U.S.C. § 12112(a)(1995). The ADA defines the term

"disability" broadly to include three separate definitions:

(A) a physical or menial impairment that

substantially limits one or more of the major

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District Court Opinion & Order - 4/7/98

life activities of [an] individual;

(B) arecord of such an impairment; or

(C) being regarded as having such an impairment.

See 42 U.S.C. § 12102(2)(1995); Penny, 128 F.3d at 414.

Thus, under the statute, the first inquiry in the disability

determination is whether Mr. Wainscott has a physical

impairment that substantially limits one or more of his major

life activities.

The Equal Employment Opportunity Commission

("EEOC") has defined "major life activities" to include

functions such as caring for oneself, performing manual tasks,

walking, seeing, hearing, breathing and working. See 29

C.F.R. § 1630.2(i)(1997). The EEOC has also provided

interpretive guidance explaining that the above list "is not

exhaustive" and that ‘other major life activities include, but

are not limited to, sitting, standing, lifting, [and] reaching."

29 C.F.R. pt. 1630 app. at 350 (1997). Additionally, the

EEOC's regulations define the phrase ‘substantially limits’ as

follows:

(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 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) (1997). In deciding whether an

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District Court Opinion & Order - 4/7/98

individual is substantially limited in a major life activity,

courts should consider the nature and severity of the

impairment; the duration or expected duration of the

impairment; and the permanent or long term impact, or

expected permanent or long term impact, of the impairment.

See Penny v. United Parcel Service, 128 F.3d 408, 414 (6th

Cir. 1997) (citing 29 C.F.R. § 1630.2(j) (2)).

With respect to the major life activity of working, 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.’ 29 C.F.R. §

1630.2(j) (3) (i) (1997). “The inability to perform a single,

particular job does not constitute a substantial limitation in the

major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i)

(1997). The Sixth Circuit has added that '[a]n impairment

that disqualifies a person from only a narrow range of jobs is

not considered a substantially limiting one." McKay v.

Toyota Motor Manufacturing, 110 F.3d 369, 373 (6th Cir.

1997) (quoting Farmland Foods, 58 F.3d 382, 386 (8th Cir.

1995)). See also Curry v. Empire Berol, U.S.A, No. 97-

5012, 1998 WL 13407, at * 3 (6th Cir. Jan. 7,

1998)(unpublished)(finding no disability in case in which the

plaintiff was found not to be limited in 'any way in his ability

to perform his work."); Szalay v. Yellow Freight System,

Inc., No. 96-3789, 1997 WL 650915 (6th Cir. Oct. 16,

1997(unpublished)(finding no disability in a case in which the

plaintiff suffered from a knee injury); Hall v. Shelby County

Government, No. 96-6506, 1997 WL 468328, at * 2 (6th Cir.

Aug. 13, 1997)(unpublished)(applying the above definition to

a failure to hire case).

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District Court Opinion & Order - 4/7/98

In McKay v. Toyota Motor Manufacturing, 110 F.3d

369 (6th Cir. 1997), the Sixth Circuit addressed disability

discrimination in the context of an alleged substantial

limitation in the "major life activity" of working. The McKay

case rested on facts similar to those presented by Wainscott.

See McKay, 110 F.3d at 370-371. The plaintiff in that case

was diagnosed with carpal tunnel syndrome and muscle

inflammation. Her doctor placed physical restrictions on her,

including a lifting restriction of a maximum of twenty pounds,

a restriction on the use of vibrating tools, and a restriction on

repetitive use of her right hand. Eventually, she was

terminated for excessive absences. See id. at 371. The Sixth

Circuit reviewed the facts and concluded that the plaintiff was

not disabled. See id. at 373. Specifically, the court held that

light of the regulatory framework of the ADA, we hold that

the physical restrictions caused by plaintiff's disability do not

significantly restrict her ability to perform the class of jobs at

issue, manufacturing jobs; at best, her evidence supports a

conclusion that her impairment disqualifies her from only the

narrow range of assembly line manufacturing jobs that require

repetitive motion or frequent lifting of more than ten pounds."

Id. According to the court, McKay's limited impairment did

not significantly restrict her ability to perform a broad range

of jobs in various classes. See id.

In Penny v. United Parcel Service, 128 F.3d 408 (6th

Cir. 1997), the Sixth Circuit reviewed another case factually

similar to the one at hand. In that case, the plaintiff, a

delivery driver, suffered several injuries to his back and

shoulder that left him with a permanent functional impairment

of ten to twenty percent of the whole body. See id. at 416.

One of his treating physicians stated that he could walk no

more than one block without rest and that he could run for

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District Court Opinion & Order - 4/7/98

only fifteen minutes at a slow pace. See id. Another

physician suggested that he not lift more than twenty-five

pounds on a repetitive basis. See id. As a result of his

impairment, the plaintiff claimed that he was disabled under

the ADA because he was substantially limited in the major life

activity of walking. See id. at 414. The Sixth Circuit

reviewed the facts and concluded that the plaintiff was not

disabled. See id. at 415.

Numerous courts, including this one, have ruled

similarly in cases involving plaintiffs with claims that they are

substantially limited in a major life activity due to back

impairments or lifting restrictions. See Schneider vy. Chas.

Seligman Distributing Co., F. Supp., No. 96-208, 1998 WL

113471 (E.D. Ky. Mar. 4,1998). See also Halperin v. Abacus

Technology Corp., 128 F.3d 191, 200 (4th Cir. 1997)(holding

that a plaintiff with back impairment resulting in a lifting

restriction of twenty pounds was not disabled); Williams v.

Channel Master Satellite Sys. Inc., 101 F.3d 346, 349 (4th

Cir. 1996) cert. denied sub nom. Williams v. Avnet. Inc.,

117 S. Ct. 1844 (1997) (holding that a twenty-five pound

lifing limitation did not constitute a ‘significant restriction on

one's ability to lift, work, or perform any other major life

activity."); Sherrod v. American Airlines. Inc., 132 F.3d

1112, 1120 (Sth Cir. 1998)(holding that a plaintiff with a

forty-five pound maximum weight lifting restriction due to a

neck injury was not disabled); Harrington v. Rice Lake

Weighing Systems. Inc., 122 F.3d 456, 460 (7th Cir.

1997)(holding that a plaintiff with a neck injury and

temporary lifting restriction was not regarded as disabled, in

part, because he did not show that he was substantially limited

in his ability to work); Snow vy. Ridgeview Medical Center,

128 F.3d 1201 (8th Cir. 1997)(holding that a plaintiff with a

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District Court Opinion & Order - 4/7/98

back injury who was restricted from lifting more than twenty-

five pounds was not disabled 'where there [was] no evidence

that she [was] thereby precluded from performing a class or

broad range of jobs as compared to average persons in the

general population."); Heintzelman v. Runyon, 120 F.3d 143,

145 (8th Cir. 1997)(holding that a plaintiff with a back

impairment and restrictions was not disabled); Thompson v.

Holy Family Hosp., 121 F.3d 537, 540-41 (9th Cir.

1997)(holding that plaintiff with a back impairment and a limit

of twenty-five pounds for continuous lifting was not

substantially limited in her ability to lift).

Like the plaintiffs in McKay and Penny, Mr. Wainscott's

impairment does not rise to the level of disability within the

meaning of the ADA. See Penny, 128 F.3d at 415; McKay

110 F.3d at 373. In fact, Mr. Wainscott's impairment

appears to be even less restrictive than either of the plaintiffs

discussed in those cases. See id. at 371; Penny, 128 F.3d at

416. At the time he requested an accommodation, Mr.

Wainscott could lift up to fifty pounds and suffered from a

permanent impairment of the whole body of only five percent.

(See Snider dep., p. 43-45).

Even with the new weight restriction of twenty-five

pounds, he remains capable of performing manual labor. He

has undertaken several physical activities since his injury,

including raising and harvesting tobacco, repairing various

engines, and doing odd jobs. (See Wainscott dep., at p. 10-

11, 170-184). Alithough Mr. Wainscott's experts suggest that

he is precluded from doing jobs classified as requiring "heavy

strength capacity” or greater, his own expert indicates that he

is only disqualified from only 18,000 of the 111,000 jobs that

he would have been qualified to perform had he not been

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District Court Opinion & Order - 4/7/98

injured. (See Roebker dep., at p. 84). Thus, Mr.

Wainscott's impairment appears to disqualify him from only

the narrow range of jobs that require him to lift more than

fifty pounds, bend repetitively, and drive a ‘haul unit' over

rough terrain. See McKay, 110 F.3d at 373 (Hillman,

dissenting)(noting that McKay's expert testified that her

impairment ‘disqualifies her from performing all heavy duty

jobs, all medium duty jobs, as well as those light and

sedentary jobs requiring repetitive motion.'). Accordingly,

Mr. Wainscott's impairment is not a disability under ADA.

Additionally, Mr. Wainscott claims that he has a

‘record of such an impairment’ and, accordingly, is disabled

within the meaning of the ADA. As noted above, a plaintiff

can establish a disability within the meaning of the ADA if he

can show that he has a ‘record of such an impairment.' 42

U.S.C. § 12102(2)(B). According to the regulations, the

_phrase ‘[hJas a record of such impairment’ means that the

plaintiff "has a history of, or has been misclassified as having,

a mental or physical impairment that substantially limits one

or more major life activities." 29 C.F.R. § 1630.2(k). Mr.

Wainscott also claims that Medusa has 'regarded [him] as

having such an impairment,’ and for that reason, he is

disabled under the ADA. 42 U.S.C. § 12102(2)(B).

According to the regulations, the phrase ‘regarded as having

such an impairment’ means that the plaintiff:

(1) Has a physical or mental impairment that

does not substantially 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

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District Court Opinion & Order - 4/7/98

attitude of others toward such 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 a

substantially limiting impairment.

29 C.F.R § 1630.2(1). Thus, the plaintiff must establish that

he has a record of an impairment that substantially limits him

in a major life activity or that he is regarded as being

substantially limited in a major life activity. See Curry v.

Empire Berol, U.S.A., No. 97-5012, 1998 WL 13407, at * 3

(6th Cir. Jan. 7, 1998)(unpublished); Ballard v. Vulcan

Materials Co., 978 F. Supp. 751, 756 (W.D. Tenn. 1997)("a

plaintiff bears the-burden of establishing that the defendant

regarded him as suffering from a physical or mental

impairment that significantly restricted his ability to perform

‘either a class of jobs or a broad range of jobs in various

classes.'" ). Mr. Wainscott can do neither, however, because

his back injury does not substantially limit him in a major life

activity.

However, even assuming that Mr. Wainscott is

“regarded as having such an impairment" or has a "record of

such an impairment,” he is still unable to survive summary

judgment on his discrimination claim. Because the basis of

his claim is the denial of an accommodation, the perception of

his employer is simply irrelevant. An employer is not

required to accommodate an employee who is not actually

disabled. See Gilday v. Mecosta County, 124 F.3d 760, 764

n.4 (6th Cir. 1997)("That such a person could request

accommodation means that he is actually physically disabled

under the Act, and not merely considered to be disabled or

have a record of disability, . . .[because] [a] person without

2la

*

é

3

.

‘

$

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4

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District Court Opinion & Order - 4/7/98

an actual disability would not need any accommodation.").

Accordingly, Mr. Wainscott's ADA claim must fail.

Having concluded that plaintiff is not disabled, it is

unnecessary to address the issue of reasonable

accommodation.

Therefore, the court having heard counsel and being

advised, IT IS ORDERED as follows:

1. That Defendant's motion for summary judgment

(Doc. #41) be, and it is, hereby granted, pursuant to the

reasoning of the United States Court of Appeals for the Sixth

Circuit in Penny v. United Parcel Service, 128 F.3d 408, 414-

418 (6th Cir. 1997), and McKay vy. Toyota Motor

Manufacturing , 110 F.3d 369, 371-374 (6th Cir. 1997); and

2. That a separate Judgment shall enter concurrently

herewith.

This 7" day of April, 1998.

/s/

WILLIAM O. BERTELSMAN,

CHIEF JUDGE

22a

APPENDIX C

UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF KENTUCKY AT COVINGTON

[Filed April 7, 1999]

Civil Action No. 96-232

RICHARD WAINSCOTT

Plaintiff,

Vv.

MEDUSA AGGREGATES COMPANY

Defendant.

Nee we Hw rw SS SS

JUDGMENT

Pursuant to the Opinion and Order entered

concurrently herewith, the court being advised,

IT IS ORDERED AND ADJUDGED that judgment

is hereby entered in favor of the defendant; that this matter is

hereby dismissed, with prejudice, at the cost of the plaintiff;

and stricken from the docket of this court.

This 7™ day of April, 1998.

/s/

WILLIAM O. BERTELSMAN, CHIEF JUDGE

23a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed April 26, 1999]

No. 98-5562

RICHARD WAINSCOTT

Plaintiff-Appellant,

V.

MEDUSA AGGREGATES COMPANY

Defendant-Appellee.

ee ee

MANDATE

Pursuant to the court's disposition that was filed 4/1/99

the mandate for this case hereby issues today.

A True Copy.

COSTS: NONE

Cr aci eases cess $

a $

a $

Attest

Ms. Patricia J. Elder Deputy Clerk

24a