Opposition Brief — Stumbo v. Dyncorp Procurement Systems, Inc.

A

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‘ Siio*ome Court, U.S

No. 01-1014 4 gh

jn Che FEB 11 2002

Supreme Court of the Qnited Stales

CLERK

RICHARD M. STUMBO,

Petitioner,

DYNCORP PROCUREMENT SYSTEMS, INCORPORATED,

f/k/a DynCorp Aerospace Operations, Incorporated;

DYNCORP AEROSPACE OPERATIONS, INCORPORATED;

DYNCORP AEROSPACE OPERATIONS, (U.K.), LIMITED,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Brief in Opposition

Michelle Bodley Radcliffe

Counsel of Record

Steven W. Ray

Edward Lee Isler

RAY & ISLER, P.C.

8245 Boone Boulevard, Suite 402

Vienna, Virginia 22182

(703) 748-2690

Counsel for Respondents

THE LEX GROUP ¢ 1108 East Main Street @ Suite 1400¢ Richmond, VA 23219

(804) 644-4419 © (800) 856-4419 Fax: (804) 644-3660 ¢ www.thelexgroup.com

RESPONDENTS’ COUNTERSTATEMENT OF

THE QUESTIONS PRESENTED

1. Where this Court has determined that an

individual whose hypertension is controlled by

medication and who is not limited in any major life

activity is not “disabled” under § 12102(2)(A) of the

Americans with Disabilities Act (“the Act”), e.g.,

Murphy v. United Parcel Service, Inc., 527 U.S. 516, 521

(1999), and where the district court and the Fourth

Circuit, applying the legal analysis adopted in Murphy,

made factual findings, based upon Petitioner's

admissions, that Petitioner's hypertension is fully

controlled by medication and does not substantially

limit him in any major life activity, should this Court

review the lower court's determination that Petitioner

cannot recover under § 12102(2)(A) as a matter of law

because he was not “disabled” as defined therein?

2. Is review by this Court warranted where,

following this Court's decisions in Murphy and Sutton

v. United Air Lines, Inc., 527 U.S. 471 (1999), the district

court and the Fourth Circuit required Petition to

present facts that Respondents “regarded” him to be

“precluded from a broad range of jobs”, Murphy, 527

US. at 523, accord Sutton, 527 US. at 492, and

determined that, since that Petitioner's proof

established only that Respondents considered him

unable to perform the singular position of International

Police Officer in Bosnia, Petitioner could not sub his

claim under § 12102(2)(C) that Respondents regarded

him as substantially limited in the major life activity of

working?

y Pare est ved ee ae ee ee “ ‘

LIST OF PARTIES

The following are parties to the proceedings in

which the United States Court of Appeals for the

Fourth Circuit issued the judgment that is under

review:

Richard M. Stumbo -

Plaintiff/ Appellant/ Petitioner

DynCorp Procurement Systems, Inc. -

Defendant/ Appellant/ Respondent

DynCorp Aerospace Operations, Inc. -

Defendant/ Appellant/ Respondent

DynCorp Aerospace Operations (U.K.), Inc. -

Defendant/ Appellant/ Respondent

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6,

Respondents make the following disclosures:

DynCorp Procurement Systems, Inc.

DynCorp Procurement Systems, Inc., has a

parent corporation, DynCorp Information and

Engineering Technology, and a _ grandparent

corporation, DynCorp. Neither DynCorp Procurement

Systems, Inc.’s parent or its grandparent are policy

held companies owning 10% or more of DynCorp

Procurement Systems, Inc.’s stock.

DynCorp Aerospace Operations, Inc.

DynCorp Aerospace Operations, Inc., has a

parent corporation, DynCorp Technical Services, Inc.,

and a grandparent corporation, DynCorp. Neither

DynCorp Aerospace Operations, Inc.'s parent or its

grandparent are policy held companies owning 10% or

more of DynCorp Aerospace Operations, Inc.’s stock.

DynCorp Aerospace, Operations (UK) Ltd.

DynCorp Aerospace Operations (U.K.), Inc., has

a parent corporation, DynCorp Aerospace Operations,

Inc., a grandparent corporation, DynCorp Technical

Services, Inc., and a great-grandparent, DynCorp.

Neither DynCorp Aerospace Operations (U.K.), Inc.’s

parent, grandparent or great-grandparent are policy

held companies owning 10% or more of DynCorp

Aerospace Operations (U.K.), Inc.’s stock.

Page

RESPONDENTS’ COUNTERSTATEMENT OF

THE QUESTIONS PRESENTED ........:0:sessssssssssesseseseeseseees i

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CORPORATE DISCLOSURE STATEMENT ...........0000+. iii

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TARE CaN ccitictercttipetnnsctereeneerenereseveens vi

OPINIONS AND ORDERS ENTERED BELOW............. 1

JURISDICTION STATEMENT ..........cccccscscsessssssesseseseserere 1

STATUTES AND REGULATIONS INVOLVED............ 1

STATEMENT OF THE FACTS ......cccccscscccscssssssssossvoseseseees 2

1. SE FID eiccarevnnsceniniieidinneninediomnnntonen 2

2. Petitioner's Hypertension.............scssseseesees 3

3. DynCorp’ : Contract To Provide

International Police Monitors In

Se pnisintiesicheaeiccsincseninvennnpeeintvetennntionen 3

4. Petitioner's Application For IPM In

SUIT hisdaicsndataithenesscepaiencencenimttianeneniniesnsecstorecs 4

iv

5. DynCorp’s Review Of Petitioner’s

Pic cnictitieciintaltanctcinnnstniminnaemion 5

6. DynCorp’s Invitations To Petitioner

To Apply For Other Similar

a EAE SUT ae 7

ih Certiorari Is Not Warranted On

Petitioner's Claim Under

§ 12102(2)(A) Of The ADA Because

This Court Has Already Addressed

The Very Legal And Factual Issues

2. Petitioner's Assertion That The

Position Of International Police

Monitor Is A “Class of Jobs”

Contravenes The Applicable Legal

Standard Identified By This Court

In Sutton and Murphy ........ceeecsrererereeees 12

CONCLUSION ..cccsccrssescescevtsvvnevsnsveninesvcvervscerseseoeevece 19

APPENDIX

TABLE OF AUTHORITIES

Cases:

Bragdon v. Abbott,

SON TG WOE COIN ois ccSiesccsdiceae

Branti v. Finkel,

445 U.S. 507 (1980) oocccssssscccsscscssessssesesssssees

Bridges v. City of Bossier,

92 F.3d 329 (5th Cir. 1996).....cccccccsssssssssee

Coleman v. Southern Pacific Transportation Co.,

997 F. Supp. 1197 (D. Ariz. 1998).............

Hooven-Lewis v. Caldera,

249 F.3d 259 (4th Cir, 2001).....ccscccsssssesee

Murphy v. United Parcel Service, Inc.,

og ae

Sutton v. United Airlines,

BETIS OIE OG a ccscacsencterserrerscersce

Toyota Motor Mfg., Kentucky, Inc. v. Williams,

A ate IE, GEE secttereemstnvatiesernereomncveese

Page(s)

++ passim

1+. passim

Statutes:

ye as A a NITE A A Sr 1

CEO I I irre retention 1

Po Ltt ak | RAS ORE age 1

Sse ee i, 7, 8, 10

USC CONS ics ee ik. i,12

Regulations:

DCVR EM i RSLS 1

CPR. 0 OMI assis cieretcicdtetinene 13

29 C.F.R. § 1630.2(j)(3)(ii)(B) .oocssssscsssessssseeenssceeeenseeeeen 16

OPINIONS AND ORDERS ENTERED BELOW

The United States District Court for the Western

District of Virginia granted summary judgment in

Respondents’ favor on all counts of Petitioner's

Complaint in an opinion dated January 29, 2001 and

published at 130 F. Supp.2d 771. The district court's

opinion is reproduced in full in the Appendix to the

Petition for Writ of Certiorari at App. 5.

The United States Court of Appeals for the

Fourth Circuit issued an unpublished per curiam

opinion dated September 5, 2001, affirming the

decision of district court. The appellate court’s opinion

is reproduced in full in the Appendix to the Petition for

Writ of Certiorari (“Pet. App.”) at 1.

JURISDICTION STATEMENT

The judgment of the court of appeals was

entered on September 5, 2001. The Petition for Writ of

Certiorari was filed on December 4, 2001. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTES AND REGULATIONS INVOLVED

Petitioner's claims arise under the Americans

With Disabilities Act of 1990, as amended, 42 U.S.C.

§ 12101, et seq. The statute at issue in this appeal is

§ 12102(2), which is set forth in full in the Petition for

Writ of Certiorari at 1-2. The federal regulation related

to Petitioner’s claims is 29 C.F.R.§ 1630.2(j), also set

forth in the Petition for Writ of Certiorari at 2-3.

STA THE FACTS

Petitioner’s Statement of the Facts and Argument

are replete with assertions that misrepresent the facts in

the record and assertions that have no foundation in the

record. Accordingly, Respondents’ Statement of the

Facts and Argument correct and supplement the

Petitioner's unsupported representations with record

facts (and, where necessary, citations to particular pages

of the Joint Appendix filed with the Fourth Circuit as

reproduced in the Appendix hereto) where such

misrepresentations may have a bearing on what issues

would properly be before the Court if certiorari were

granted

1. The Parties

Since his retirement from the Metropolitan D.C.

police force in 1990, after 21 years of service, Petitioner

has been employed in several domestic and

international security and/or investigative positions

that have required him to be on his feet most of the time,

and that have sometimes required 8-16 hours of work

per day for one to three months with no days off. Since

1997, Petitioner has worked for W.M. Kellogg Co. as a

security coordinator in Algeria. In this position,

Petitioner works primarily on his feet for fourteen hours

a day, seven days a week, for two months at a time

providing security measures for employees working on

a natural gas renovation project.

Respondent DynCorp Aerospace Operations

(U.K.), Ltd. (“DAOL”) is incorporated under the laws

of the United Kingdom. DAOL employs persons

hired as International Police Monitors (“IPMs”) under

a contract between DynCorp Aerospace Operations,

2

Inc. and the U.S. State Department. DynCorp

Aerospace Operations, Inc. recruited persons to serve

as IPMs in Bosnia. Respondents shall hereafter be

referred to as “DynCorp.”

-s Petitioner's Hypertension

In or around 1991, Petitioner was diagnosed

with high blood pressure, otherwise known as

hypertension. His hypertension “has been treated with

medication without incident.” Appendix to the

Opposition (Opp. App.) 11. Petitioner admitted during

discovery that he has had no physical limitations as a

result of his high blood pressure. Opp. App. 7-9, 11.

3. DynCorp’s Contract To Provide

International Police Monitors In Bosnia

Under its contract with the State Department,

DynCorp provided highly qualified law enforcement

personnel to work in Bosnia as part of the United

Nations International Police Task Force (“IPTF”). IPTF

personnel were responsible for reconstituting,

establishing and maintaining the rule of law and

gaining public confidence in areas where the civilian

police force was not fully functional during the Bosnian

conflict. Their duties included, inter alia, monitoring

and evaluating law enforcement activities, conducting

on-the-job training for law enforcement personnel,

assessing threats to public order and advising how to

deal with such threats, and assisting in normal daily

law enforcement activities.

Although DynCorp recruited the IPMs, once

they reported to Bosnia they were subject to the

direction of the United Nations. The United Nations,

3

not DynCorp, determined both the geographic location

to which an IPM would be assigned and the duties he

or she was to perform. Moreover, IPMs in Bosnia were

charged with finding their own housing. In 1996,

living conditions throughout Bosnia were

unpredictable and often strenuous. The terrain was

mountainous, obtaining transportation was difficult,

the availability of running water, refrigeration and

electricity was erratic, and food supplies were limited.

. Petitioner’s Application For IPM In

Bosnia

Petitioner applied with DynCorp for the IPM

position in Bosnia in spring 1996. Petitioner

understood throughout the application process that he

would have to pass a physical examination before he

could be finally selected for the IPM position. Opp.

App. 2.

On or about August 12, 1996, DynCorp

informed Petitioner that he had been conditionally

accepted for the IPM position in Bosnia, and that he

would be receiving forms, including a physical

examination form, to be completed before he was

hired.1 Opp. App. 3, 19. Petitioner thereafter received

from DynCorp information regarding the IPM position,

including a Foreign Service Employment Agreement

(“FSEA”) and a medical examination form. Opp. App.

19-22. Petitioner also received a letter advising that the

: Petitioner's assertion that DynCorp notified him on August

12, 1996 “that he had been selected for the position of IPM”, Pet. 6,

is misleading because, as noted above, DynCorp advised Petitioner

that his employment was conditioned upon the successful

completion of the medical exam. See Opp. App. at 3, 19, 21.

a

employment offer described in the FSEA was

contingent on satisfactory results of, among other

things, a pre-employment medical examination. Opp.

App. 21.

Petitioner's physician, Dr.Mark Vickers,

examined Petitioner and completed the requisite pages

of the physical examination form. Petitioner shared

with Dr. Vickers his understanding of the duties and

responsibilities of an IPM in Bosnia, and Dr. Vickers

did not express any concern regarding Petitioner's

ability to meet the requirements of the job. On the

examination form, Dr. Vickers classified Petitioner as

“[flit for all physical and manual duties.”

5. DynCorp’s Review Of Petitioner's

Application

At the time Petitioner applied, DynCorp

forwarded the medical examination forms of all IPM

applicants to Dr. Peter McDougall. DynCorp had

entered into an agreement whereby Dr. McDougall

reviewed each medical examination form completed

and returned to DynCorp by the applicants’

physicians. Opp. App. 24. DynCorp provided to

Dr. McDougall a summary of the responsibilities and

tasks associated with the IPM position and a

description of the conditions in Bosnia under which the

IPMs could be performing those tasks, and he

considered the job requirements and the conditions in

Bosnia when determining whether an applicant could

perform the job. Opp. App. 13-14, 25-28. DynCorp

secured a review of the medical exams to ensure that

IPMs would be physically able to perform the tasks

required of an IPM in Bosnia. Opp. App. 13.

After examining Petitioner's medical

examination form, Dr. McDougall wrote a note to

DynCorp in which he stated: “Overweight smoker on

two hypertensive meds. Wouldn’t recommend for

strenuous work.”2 Opp. App. 29. Upon receiving this

note, Austin Bryan, a DynCorp recruiter, notified

Petitioner on or about September 6, 1996 that he should

stop making preparations to go to Bosnia until a final

decision was reached regarding his application.

Mr. Bryan explained to Mr. Stumbo that a physician

had reviewed his medical records and advised that he

may not be medically suited for the job environment in

Bosnia. Opp. App. 30.

After reviewing further Petitioner’s application,

the medical examination performed by Dr. Vickers,

and the comments by Dr. McDougall, DynCorp

determined that the combination of Petitioner’s weight,

smoking and hypertension raised questions about his

abilities to perform the duties of an IPM in Bosnia.*

Opp. App. 17. Petitioner thereafter was informed that

2 This evidence contradicts Petitioner's assertion, Pet. 8, that

Dr. McDougall advised DynCorp that Petitioner “was medically

incapable of performing” the IPM job, and that “he perceived

[Petitioner] as medically incapable of performing the job.”

3 Contrary to Petitioner’s claim, Pet. 6, the record contains

no evidence that “DynCorp found [Petitioner] to be medically

incapable of performing the position of IPM in Bosnia” or that

“DynCorp withdrew the offer of IPM” only because Petitioner's

medical documents revealed that he had hypertension. Similarly,

Petitioner's contentions at Pet. 7 that DynCorp “perceived [him] to

be substantially limited in his ability to perform the duties of an

IPM because of a perceived impairment” and that the company

“placed [him] in the category of an individual who did not meet

the job requirements of an IPM because of his hypertension” are

also without foundation in the record.

6

he would not be hired as an IPM in Bosnia. Petitioner

never asked DynCorp for any kind of an

accommodation for a disability, and DynCorp never

informed Petitioner that it would not provide one.

6. DynCorp’s Invitations to Petitioner To

Apply For Other Similar Positions

Within a few weeks after he had been rejected

for the IPM position in Bosnia, Petitioner called

DynCorp to inquire whether other jobs for which he

might be qualified were available. The DynCorp

recruiter with whom he spoke replied that she would

check to see if there were such openings and she asked

him to call back. Opp. App. 4-5. Another DynCorp

employee later informed Petitioner that he should

reapply for the Bosnia IPM position. Opp. App. 5.

DynCorp also discussed with Petitioner the possibility

of his applying for an IPM job in Haiti, a position that

required employees to speak fluent French or Creole.

Opp. App. 5-7.

ARGUMENT

The lower courts’ decisions were based upon

two factual findings. The first, that Petitioner's

hypertension does not limit him in any major life

activity, was the basis for the legal conclusion that he

was not “disabled” within the meaning of

§ 12102(2)(A) of the Act. The second factual finding

was that the undisputed facts established that

DynCorp regarded Petitioner as unable to perform one

job only, the IPM position in Bosnia. To these facts, the

courts below applied the legal standards adopted by

this Court and adhered to by the circuit courts.

7

Because the Petition raises no legal issues that this

Court has not previously addressed, the Court should

deny Petitioner’s request that it revisit the factual

determinations made by the district court and the

Fourth Circuit.

1. Certiorari Is Not Warranted On

Petitioner’s Claim Under § 12102(2)(A)

Of The ADA Because This Court Has

Already Addressed The Very Legal And

Fa Presented.

Petitioner claims he is “disabled” as that term is

defined under § 12102(2)(A) of the ADA. In order to

establish that he is disabled under that provision, he

must establish that he has a “physical or mental

impairment” that “substantially limits” him in one or

more of his “major life activities”. Bragdon v. Abbott,

524 U.S. 624, 631 (1998); accord Toyota Motor Mfg.,

Kentucky, Inc. v. Williams, 122 S. Ct. 681, 689 (2002)

(“Merely having an impairment does not make one

disabled for purposes -of the ADA. Claimants also

need to demonstrate that the impairment limits a major

life activity.”). Assuming arguendo that Petitioner has

identified a physical impairment (hypertension) that

affects a major life activity (working),‘ the lower courts

nonetheless correctly held that he cannot show that this

‘ This Court has recognized “the conceptual difficulties

inherent in the argument that working could be a major life

activity,” Toyota Motor Mfg., 122 S. Ct. at 692, and has expressed

doubts as to whether “working” is an appropriate major life

activity under the ADA. See Sutton, 527 US. at 492. DynCorp

submits that working, generally stated, should not be considered a

major life activity under the ADA and requests that the Court

consider this issue if the Petition is granted.

impairment served as “ substantial limitation” on his

major life activity of working because his hypertension

is fully treatable with medication and does not limit

him in any activity. As explained below, Petitioner's

argument thus is governed by and flatly contrary to

this Court's holding in Murphy v. United Parcel Service,

Inc., 527 U.S. 516, 521 (1999).

In determining whether an individual's

impairment “substantially limits” a major life activity,

this Court has held that his ability to mitigate, or

successfully cope with, the effects of the disability must

be taken into account. Sutton v. United Air Lines, Inc.,

527 US. 471, 488 (1999); Murphy, 527 US. at 521. The

undisputed facts, including repeated representations by

Petitioner and his physician, establish that Petitioner's

hypertension is well controlled with medication. See,

eg, Pet. 5 (“[allthough his physical impairment,

hypertension, continues to be successfully treated with

prescription medication . . . ”) and 14 (“[wJhile Mr.

Stumbo has been able to control his hypertension with

medication ....”). The record, moreover, is replete with

facts and Petitioner's admissions that his hypertension

does not limit him in any way, including in his ability to

perform any major life activity. See Opp. App. 8-9 (“Q:

Is there any activity that you're incapable of doing

because of your high blood pressure? A: That I'm

incapable of doing? No, not that I know of, no. Q: Is

there any - does your high blood - blood pressure limit

you from engaging in any kind of activity in any way?

A: No.”).

The speciousness of Petitioner's request that

this Court review the lower courts’ determination

that his “well-controlled” hypertension does not render

him “disabled” under § 12102(2)(A) is reflected by the

fact that this Court already specifically addressed

whether an _ individual whose hypertension is

controlled by medication is “disabled” under

§ 12102(2)(A) in Murphy. In that case, the plaintiff's

mechanic job required him to drive commercial

vehicles. He was fired because his employer believed

his high blood pressure would preclude him from

obtaining a Department of Transportation health

certification, which is required for drivers of

commercial vehicles. 527 U.S. at 519-20. This Court

upheld the dismissal of Murphy’s § 12102(2)(A) claim,

holding that because his hypertension, when treated

with medication, did not limit him in any major life

activity, he was not disabled under § 12102(2)(A) as a

matter of law. Id. at 521.

Relying on Murphy, the district court - not

surprisingly given that the undisputed facts related to

Petitioner's hypertension were virtually identical to

those in Murphy - concluded that Petitioner was not

disabled under §12102(2)(A).5 The courts below

clearly applied the appropriate legal standard adopted

by this Court.

$ Contrary to Petitioner's contention, see Pet. 15, DynCorp

did not argue below - and it does not contend now - that

hypertension treated with medication can never be a “disability”

under the Supreme Court's holdings in Sutton and Murphy. Nor

did the lower courts adopt a per se classification that

whose hypertension is medicated will never be “disabled” under

the ADA, as Petitioner asserts at Pet. 24. Rather, as explained

above, the Court's rulings.in these cases confirm only that persons

like Petitioner, whose hypertension is controlled by medication

and who suffer no substantial limitation in any major life activity

as a result of their controlled hypertension, are not “disabled”

under § 12102(2)(A). E.g., Sutton 527 U.S. at 488; Murphy, 527 U.S.

at 521.

10

Given the inescapable conclusion that his

controlled hypertension does not substantially limit

him in any manner, Petitioner asks the Court to

speculate that he would, in fact, suffer from substantial

limitations if his hypertension medication were

unavailable to him. See Pet. at 16 (“it is important to

consider Stumbo’s hypertensive condition in totality -

with and without medication - in determining whether

he qualifies as disabled”). Petitioner’s conjecture

regarding his condition in an unmedicated state is also

flatly contrary to existing Supreme Court precedent.

In Sutton, this Court expressly considered the

issue Petitioner poses - i.e., whether Petitioner's

hypertension must be examined in an unmedicated

state, Pet. 16 - and answered in the negative. In fact, in

Sutton, this Court stated that evaluating plaintiffs “in

their. hypothetical uncorrected state - is an

impermissible interpretation of the ADA.” 527 U.S. at

482. This binding authority forecloses Petitioner's

invitation to the Court to engage in speculation by

considering his hypertension in its unmedicated state.

Finally, Petitioner's assertion that the district

court erred by not “consider[ing] the specific factual

issues of this particular case”, Pet. 16, is belied by that

court’s observation that record conclusively established

that Petitioner’s “hypertension is fully correctable; he is

not precluded from any of life’s major activities, not

even working.”© Pet. App. 9. This factual

6 Indeed, Petitioner's claim that the district court “wholly

adopted DynCorp’s assertion of the facts and totally dismissed the

facts” presented by Petitioner, Pet. 5, is blatantly false. The district

court properly looked to the undisputed evidence in the record as

the basis for its decision.

11

determination is not subject to further review, lest the

Court sit as a court of error correction. E.g., Branti v.

Finkel, 445 U.S. 507, 512 n.6 (1980) (declining to review

factual findings “[i]Jn view of [the Court's] settled

practice of accepting, absent the most exceptional

circumstances, factual determinations in which the

district court and the court of appeals have

concurred”).

2. Petitioner's Assertion That The Position

Of International Police Monitor Is A

“Class Of Jobs” Contravenes The

Applicable Legal Standard Identified By

This Court In Sutton And Murphy.

Petitioner further asserts that the lower courts

erred when they applied the legal standards adopted in

Sutton and Murphy to the record facts and concluded

that Petitioner had not established that DynCorp

“regarded” him as unable to perform the major life

activities of working because he had not shown that

DynCorp perceived him to be unable to perform a

broad range or class of jobs. Pet. 23. The district court

and the Fourth Circuit, however, appropriately applied

the expansive view of a “class of jobs” advocated by

this Court in Sutton and Murphy to the undisputed

facts. Their determination that Petitioner is not

“regarded as disabled” under § 12102(2)(C) thus must

stand.

“[A] person is ‘regarded as’ disabled within the

meaning of the ADA if a covered entity mistakenly

believes that the person’s actual, nonlimiting

impairment substantially limits one or more major life

activities.” Murphy, 527 US. at 521-22 (citing Sutton,

12

i} -

414 .

ee ee

527 US. at 489). Petitioner claims DynCorp “regarded”

his hypertension as substantially limiting him in the

major life activity of “working”. Addressing similar

assertions in Sutton and Murphy, this Court held that a

plaintiff alleging that an employer “regarded” his

ability to work as “substantially limited” must show

that the employer perceived him as “‘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.’” Sutton, 527 U.S. at 491 (quoting 29 C.F.R.

§ 1603.2(j)(3)(i)) (emphasis added). “[T]o be regarded

as substantially limited in the major life activity of

working, one must be regarded as precluded from more

than a particular job.” Murphy, 527 U.S. at 523 (emphasis

added).”

In this regard, Sutton and Murphy again are

instructive. In Sutton, the plaintiffs, who suffered from

severe myopia, alleged that United Airlines perceived

their myopia as disqualifying only for global pilot

positions, a singular job. This Court therefore held that

the plaintiffs had failed to allege that United Airlines

regarded them as unabie to perform a “class of

employment.” 527 U.S. at 493. The plaintiff in Murphy

was fired because UPS believed his high blood

pressure would prevent him from obtaining a

Department of Transportation certification. required for

driving commercial vehicles. This Court rejected the

plaintiff's “regarded as” disabled claim, holding that

UPS’s knowledge of Murphy's high blood pressure

and its conclusion that he was unable to perform the

. Citing 29 C.F.R. § 1630.2(j)(3)(i) (“The inability to perform

a single, particular job does not constitute a substantial limitation

in the major life activity of working.”).

13

particular job of driving a commercial vehicle was

‘ “insufficient, as a matter of law, to prove that

[Murphy] is regarded as substantially limited in the

major life activity of working.” 527 U.S. at 525.

The decision in Bridges v. City of Bossier, 92 F.3d

329, 333-34 (Sth Cir. 1996), upon which Petitioner relies,

also bolsters DynCorp’s position. In Bridges, the

defendant perceived the plaintiff to be unable to

perform any job in which he would be routinely

exposed to extreme trauma. The court thus

determined that, to show that the defendant

“regarded” him as substantially limited in the major

life activity of working, the plaintiff had to produce

evidence from the record that showed how many and

which jobs involved the routine exposure to extreme

trauma. Id. at 333. The plaintiff in Bridges failed to

make the requisite factual showing. ® Id.

The lower courts correctly applied the foregoing

analysis to the undisputed facts. The record is clear

that DynCorp considered Petitioner's hypertension

only insofar as it, in combination with his smoking and

weight, raised doubts about his ability to perform the

tasks of a specific job, International Police Monitor, in a

. Another decision Petitioner relies on is Coleman v. Southern

Pacific Transportation Co., 997 F. Supp. 1197 (D. Ariz. 1998), which

also applies the same legal standard. (Indeed, Petitioner does not

cite any circuit court that has not applied this standard since the

decisions in Sutton and Murphy.) Because the plaintiff in Coleman

produced abundant evidence showing that the defendant actually

considered his condition to limit him from working in an entire

class of transportation jobs, the court held that he had produced

proof creating a genuine issue of fact as to whether the defendant

perceived him as substantially limited in the major life activity of

working. Id. at 1206.

14

specific location, Bosnia. See Opp. App. 17. Central to

DynCorp’s determination about the potential

limitations of Petitioner’s overall medical condition

was the fact that he would have to perform the job in

the war-torn country of Bosnia, which had severe

geological and weather conditions and unreliable

electricity, transportation and medical services.’ Here,

proof that DynCorp even thought about whether

Petitioner’s hypertension limited his ability to perform

any job other than IPM in Bosnia is wholly absent from

the record. DynCorp’s consideration of Petitioner thus

was undisputedly limited to the narrow and unique

requirements of the IPM position in Bosnia. See Opp.

App. 15-16. Petitioner’s bald allegations that DynCorp

determined him to be unable to perform an IMP’s

duties anywhere, Pet. 7, 13-14, and to be “substantially

limited’ in his ability to perform duties as law

enforcement and logistics personnel, Pet. 16, lack any

record support. The facts thus fall far short of

establishing that DynCorp believed Petitioner to be

substantially limited in his ability to perform a class of

jobs or broad range of jobs.

Lacking any record evidence that DynCorp

considered him unable to perform the broad range or

class of jobs relevant here, ie., national and

international law enforcement and security, Petitioner

asks this Court conclude that the job of International

Police Monitor - in and of itself - comprises a “class of

, In this regard, the record reflects that Petitioner's

representation that DynCorp determined that he did not meet the

requirements of an IPM solely “because of his hypertension”, Pet.

7, is incorrect.

15

employment.” Pet. 13. This argument is wholly

unsupported by the governing regulations cited in

Sutton and Murphy, which state that factors to consider

in determining whether one is substantially limited in

his ability to work include “the number and types of

jobs utilizing similar training, knowledge, skills or

abilities, within [the] geographic area [reasonably

accessible to the individual], from which the individual

is also disqualified.” 29 C.F.R. § 1630.2(j)(3)(ii)(B). “If

jobs utilizing an indivdual’s skills (but perhaps not his

or her unique talents) are available, one is not

precluded from a substantial class of jobs. Similarly, if

a host of different jobs are available, one is not

precluded from a broad range of jobs.” Sutton, 527 U.S.

at 492. Petitioner’s training, knowledge, skills and

abilities readily enable him to perform any number of

jobs in the law enforcement and security field,

including the job of security coordinator in Algeria,

which he has held since 1997. Because Petitioner does

not and cannot show that other jobs “utilizing [his]

skills” are not available to him, his “regarded as” claim

fails.

Having developed no evidence that DynCorp

regarded him as unable to perform any police

monitoring, law enforcement or security job other than

the IPM job in Bosnia, Petitioner raises several

unfounded arguments - and in so doing, misrepresents

the facts in the record - in hopes of salvaging his

“regarded as disabled” claim. First, he baldly claims

that DynCorp “perceived” that he

16

was medically incapable of performing

major life activities required of IPMs such

as, but not limited to, walking, running,

lifting, climbing stairs, personal survival

skills, ability to adapt to cold weather and

defense of his personal safety. DynCorp

believed that Mr. Stumbo was medically

incapable of performing the broad range

of jobs which include any non-sedentary

activity such as walking, running,

climbing stairs or any form of physical

exertion.

Pet. 8. There are absolutely no facts in the record that

DynCorp actually “perceived” any of the foregoing.

Nor is there record evidence supporting Petitioner's

assertions that Dr. McDougall “advised DynCorp that

Mr. Stumbo was medically incapable of performing the

job” of an IPM, Pet. 8; that DynCerp had “internal

procedures” requiring either an independent review of

Petitioner or a “follow-up by the candidate’s own

doctor”, Pet. 18; or that “it is undisputed that

[Petitioner] has the requisite skills and experience” to

perform as an IPM, regardless of the location, if he had

access to his medication. Pet. 18-19.

Second, Petitioner claims not only that DynCorp

decided that he was unfit for the IPM job in Bosnia, but

also that “DynCorp concluded that [his] impairment

(with or without hypertensive medication) precluded

' him from obtaining any positions with DynCorp”, Pet.

20 (emphasis in original); that DynCorp’s decision not

to hire him as an IPM in Bosnia “barred him . . . from

all possible positions including Bosnia”, id.; and that

“DynCorp refused to consider [Petitioner] for any IPM

17

positions whether in Bosnia, Haiti or elsewhere”. Pet.

at 19. Petitioner does not and cannot provide record

citations supporting these wholly _ speculative

assertions. Indeed, the record facts suggest the

opposite, as reflected by Petitioner’s admission that,

after denying him the IPM position in Bosnia, DynCorp

invited him to seek other positions with the

Company.1° See, e.g., Hooven-Lewis v. Caldera, 249 F.3d

259 (4th Cir. 2001) (defendant did not regard plaintiff

as unable to perform the life activity of working where

it sought to place plaintiff in another position).

Accordingly, Petitioner’s unsupported allegation

that DynCorp’s perception of his impairment would

have restricted him from “all IPM and related

positions”, Pet. 23, is meritless. In the lower court,

Petitioner failed to establish what those “related

positions” were, what their responsibilities included,

and where and under what conditions they were to be

performed. The Fourth Circuit thus correctly upheld

the district court’s factual determination that Petitioner

“demonstrated only that Defendants considered him

unfit for one particular job”, Pet. App. 2, 10, a finding

that, under the legal standards expressed in Sutton and

Murphy, precludes Petitioner's recovery on his

“regarded as” disabled claims. Accordingly, review by

this Court is unwarranted.

10 Petitioner testified that, after DynCorp denied him

employment as ar: IPM in Bosnia, it extended him opportunities to

apply for similar positions in other locations. Opp. App. 4-7. He

also represented in a letter to Senator John Warner that DynCorp

invited him to reapply for the Bosnia position or apply for other

positions after he was denied the Bosnia IPM job. Opp. App. 32.

These concessions flatly contradict the notion that DynCorp

somehow perceived Petitioner to be limited in his ability to

perform jobs other than the IPM job in Bosnia.

18

CONCLUSION

The petition for a writ of certiorari should be

denied.

Dated: February 11, 2001 Respectfully submitted,

Michelle Bodley Radcliffe

Counsel of Record

Steven W. Ray

Edward Lee Isler

RAY & ISLER, P.C.

8245 Boone Boulevard

Suite 402

Vienna, Virginia 22182

(703) 748-2690

19

TABLE OF CONTENTS

Appendix to Brief

Excerpts from Joint Appendix

filed May 2, 2001:

Excerpts from Exhibits to

Defendants’ Memorandum of Points and

Authorities in Support of Defendants’

Motion for Summary Judgment,

filed January 2, 2001:

Exhibits:

1. Excerpts from Deposition of

Richard M. Stumbo

taken November 6, 2000.........:ss:sssssssesseees

2. Excerpts from Plaintiff's Answers

and Objections to Defendant's

First Set of Interrogatories

REE SE

4. Excerpts from Oral Deposition of

Austin Bryan

taken December 7, 2000 ................cs.cs000000

8. Excerpt from Letter to

Richard M. Stumbo from

William E. Marcantel,

Director of Operations

Re: IPM Contract

6 ey nee

App. i

Page

Exhibits, continued:

11. Excerpts from Deposition of

Peter McDougall

taken December 7, 2000...........s:ssssssssseesee App. 23

12. Handwritten Notes

of Peter McDougalll

Re: Richard M. Stumbo

NOG FIT GB te cciccrescconeeisnicresininsreseronnie App. 29

13. Typewritten Notes of

Austin Bryan

Re: Richard M. Stumbo

Excerpts from Exhibits to

Defendants’ Reply Memorandum of Points and

Authorities in Further Support of

Motion for Summary Judgment,

filed January 17, 2001:

3. Excerpt from Letter to

The Honorable John Warner from

Richard M. Stumbo

Re: Dyncorp Aerospace, Inc.

dated December 18, 1997 ...........ccssseeseeeee App. 31

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

Harrisonburg Division

RICHARD M. STUMBO,

Plaintiff,

Vs.

DYNCORP PROCUREMENT SYSTEMS, INC.,

DYNCORP AEROSPACE, INC.,

DYNCORP AEROSPACE OPERATIONS, INC.,

and

DYNCORP AEROSPACE OPERATIONS

(U.K.), LTD.,

Defendants.

CIVIL ACTION NO. 5:00CV00007

Vienna, Virginia

Monday, November 6, 2000

Deposition of

RICHARD M. STUMBO

called for examination by counsel for the defendants,

pursuant to notice, in the offices of Ray & Isler, 8245

Boone Boulevard, Suite 402, Vienna, Virginia 22182,

commencing at 9:55 o’clock, am., before Richard

Gordon, court reporter and Notary Public for the

Commonwealth of Virginia, when were present on

behalf of the respective parties:

Reported by: Richard Gordon

App. 1

- “ee

wouldn't tell me to call back every week. You know, I

figured if there was something that they didn’t - - that

would disqualify me, that they would tell me not to

call back because of whatever the reason might be.

Q. And at the time when you were having

these conversations with Mr. Bryant, you understood

that you would have to pass a physical at some point?

A. Yes.

Q. So to the extent that was still out there,

you had not met that qualification yet?

A. No,I hadn't.

Q. Do you recall the names of anyone else

that you spoke with at DynCorp up through August of

1996?

A. _ Yes, a Kristen - - I think her married name

is Messer, M-E-S-S-E-R.

Q. When did you speak with Ms. Messer?

A. Most of the times when I called on the

weekly basis, I was talking to her.

Q. Can you tell me how many times,

approximately, you talked to Mr. Bryant during

eee

eee

A. Yes. They said it would be a contract, a

physical, an information, information on actually what

the job is, as far as what's expected of you, you know,

and items they would issue to you, items they

recommended you to take, that you had to purchase on

your own, and also the kind of sequence of events.

In other words, you go to New York, you get the

plane, you go to Zagreb, Croatia. And there you get a

briefing on what you’re to do, you know, get an

assignment. Kind of a chronology of what was going

to take place, you know.

Q. And you understood, at the end of those

conversations on the 12'*, that the offer you had been

given was a conditional offer, subject to you

completing the necessary paperwork and exams and

forwarding that information back to DynCorp?

A. Right; yes.

Q. In this lawsuit you have alleged that

DynCorp discriminated against you on the basis of a

disability or perceived disability. Is it your contention

that DynCorp discriminated against you

***

App. 3

other jobs?

A. It wasn’t - - it wasn’t long. In other

words, | don’t remember exactly what date it was, but

it may have been right after everybody left to go to

Bosnia, because I went to the airport with them that

day.

And | think, whatever date that was, September

something, but they - - I had called and asked about

other jobs. Okay, if I didn’t qualify for this job, were

there other jobs that I qualified for?

By this time I’m finding out a little bit about - -

that DynCorp is a pretty big company. And I didn’t

realize that in the beginning. So I called and asked

about other jobs, if there were any.

Q. Whodid you call?

A. I remember talking to Lynn Holland

then, because I hadn't talked to her in a long time. And

I called and asked for Kristen, and she wasn’t

there. And I think I asked for Austin Bryant, too,

and he wasn’t there.. And Lynn Holland was there.

I remembered her from way back in the beginning. So

Q. What specifically did you ask Ms.

Holland?

A. _ I told her about getting dropped from the

Bosnia job because of the high blood pressure. And I

asked her if there was any other jobs available with

DynCorp. And I don’t really remember her response,

except that, you know, she said that DynCorp is a big

company, and there may be other jobs. But for this

project, it was, you know - - there was different projects

going on.

App. 4

I guess what I was asking her is, if there’s

another project going on, can you direct me there, a

number or a person to call or something like that. So

she was going to check on that for me. So I was, you

know, basically - - I had to call back later.

Q. Okay. When you talked with Ms.

Holland about other projects, what was the nature of

those projects?

A. Well, I didn’t know the nature. I was

trying to find out what the nature was. You know,

some projects may be projects I would not ;

wae

Q. And did she ever get back-to you about

what, if any, other overseas jobs in a similar area there

were?

A. No, because when I called again, she

wasn’t there. It was Kristen was there again. She

talked to me about - - I’m not sure if it was that time or

another time even - - about the Haiti job coming up.

But I think it was a little early for that yet. But there

was other things coming up, but nothing was real firm

yet, nothing was definite. And then Kristen told me to

reapply for the Bosnian job.

Q. Okay. So you are not sure at that time

that Kristen talked about Haiti, because - -

A. I think it might have been another call or

two after that call.

Q. Okay. But she said that other things

might be coming up, but we are not certain. In other

countries?

App. 5

A. Yes. They had other contracts they were

working on, but they didn’t - - you know, they weren’t

finalized yet, and that I should keep my name in, if I

was still interested, keep my name in there because

things came up all the time.

- And then she told me, “Well, why don’t you just

reapply for the Bosnia job? Because they still have

openings.”

QO. And what was your response when she

asked you to reapply for Bosnia?

A. _ I was very surprised when she told me

that. Why would I reapply when I just got turned

down for it? I’d just get turned down again.

Q. Did you ask her that? .

A. — And she said, “Well, maybe this time you

won't,” or some words to that effect.

Q. What else did she tell you about there still

being Bosnia openings?

A. _ Ican’t really remember anything else that

we talked about. I just was very surprised about her

saying that, that I should reapply. That wasn’t even - -

I didn’t even ask her, “Hey, should I reapply?”

Because I| had put that aside. I thought that was done.

QO. When she said that, did you ask her, why

would I reapply when I just got turned down?

w“ke*

sorry - - to Mr. Marcantel before or after you had been

told you no longer met the requirements, that there

had been this change in requirements?

(Pause.)

App. 6

A. I think it was after, but I’m not positive. I

think it was - - I’m - - I’m not real sure.

Q. Okay. And aside from sending a letter to

Mr. Marcantel - -

A. Yes.

Q. __-- after you were told you now r_ eded to

be out of the service only five years to qualify as an

international police monitor, did you have any other

conversations with anyone from DynCorp about, “Is

there another job you have that I can apply for”, or “I

want to apply for another job”?

A. Yes. I called somebody about - - later

about the - - about the Haiti job, too, but I think there it

was the same requirement, five years, which

disqualified me right away even from applying. And

also, they were, of course, looking for, you know,

Creole or French speaking,

kkk

of that allegation, as I understood it, is high blood

pressure. Am I correct that’s your claim?

A. Yes.

(Pause.)

Q. Is it correct that your high blood pressure

does not preclude you from performing the duties of a

police monitor now, in your current job? .

A. Well, my - - it’s not a police monitor that

I’m doing, but it’s a similar - - yes, it’s similar duties.

Q. Okay.

A. No, it doesn’t prevent me from doing my

job.

App. 7

Q. Okay. And is the reason that your high

blood pressure doesn’t prevent you from doing your

duties in that job because you're taking medication for

it?”

A. ee

Q. So the medications keep your high blood |

pressure at a level that allows you to perform the

functions of your job?

A. _ That is correct.

Q. Okay. And is it your allegation that your

medication would have allowed you to perform the

duties of an international police monitor for DynCorp

at an acceptable level?

A. Yes, it is.

Q. In response to interrogatory 12, and you

can look at it if you want - - let’s see what page it is.

A. Page nine, I think.

Q. Here we go. Nine, and continuing over

to the top of page 10 that you make the contention

there that, “ I have had no physical limitation as a

result of my high blood pressure.” Is that an accurate

statement?

A. Yes. I've never had any limitations.

Q. Is there any activity that you’re incapable

of doing because of your high blood pressure?

A. That I’m incapable of doing? No, not that

I know of, no.

Q. _ Is there any - - does your high blood - -

blood pressure limit you from engaging in any kind of

activity in any way?

(Pause.)

App. 8

A. No. I--I guess! don’t understand - -

Q. I - - I understand that you don’t know the

whole universe of - - of questions - - but on a

A. No, what I’m - - what I’m thinking about

is does it limit me in - - in - - in what I can do, or - -

Q. Ona day-to-day basis, does it limit you - -

A. Ona day-to-day basis, no.

Q. Okay.

(Pause.)

You’ve mentioned several friends that have

worked or work for DynCorp. Have you talked with

any of them about your claims against DynCorp.

A. Let me think here.

MS. CRENSHAW: Current or - - or past?

BY MS. BODLEY:

Q. Current or past, either one?

A. _ Yes, I've talked to Steve Mann and Gary

eee

App. 9

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

Harrisonburg Division

RICHARD M. STUMBO

Plaintiff,

V.

DYNCORP PROCUREMENT SYSTEMS, INC.,

DYNCORP AEROSPACE, INC.

DYNCORP AEROSPACE OPERATIONS, INC.

and

DYNCORP AEROSPACE OPERATIONS

(U.K.), LTD

Defendants.

PLAINTIFF’S ANSWERS AND OBJECTIONS TO

DEFENDANTS’ FIRST SET OF INTERROGATORIES

COMES NOW the Plaintiff, Richard M. Stumbo,

by counsel, and for his Answers. and Objections to

Defendants’ First Set of Interrogatories states as follows:

eee

12. If you claim that, at the time you applied

with DynCorp for the police monitor position, you had

high blood pressure and/or hypertension, describe in

detai] the nature of the your high blood pressure and/or

hypertension, including but not limited to the length of

App. 10

time during which you have had high blood pressure

and/or hypertension, whether the high blood pressure

and/or hypertension has been constant or temporary,

the effects (physical, physiological, mental, etc.) caused

by the high blood pressure and/or hypertension, the

name and dosage level of medications you have taken to

treat the high blood pressure and/or hypertension, the

time period during which you took each such

medication, the effect (physical, physiological, mental,

etc.) of any such medications, the names of all doctors

who have treated your high blood pressure and/or

hypertension, the names of all doctors who prescribed

medication for your high blood pressure and/or

hypertension, and whether you have been precluded

from or limited in any activity - including, but not

limited to, functions such as caring for yourself,

performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning or working - as a result of

the fact that you have high blood pressure and/or

hypertension.

ANSWER: In 1991, I went to the doctor for a

sinus headache. Upon examination, I was diagnosed as

having hypertension. It has been treated with

medication without incident. My medical records are

produced with my Responses to First Request for

Production of Documents.

I have had no physical limitations as a result of

my high blood pressure.

Plaintiff reserves the right to seasonably

supplement this Answer to Interrogatory.

App. 11

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

Harrisonburg Division

RICHARD M. STUMBO,

Plaintiff,

VS.

DYNCORP PROCUREMENT SYSTEMS, INC.,

DYNCORP AEROSPACE, INC.,

DYNCORP AEROSPACE OPERATIONS, INC.,

and

DYNCORP AEROSPACE OPERATIONS (U.K.), LTD.,

Defendants.

CIVIL ACTION NO. 5:00CV00007

9 0 HSS

ORAL DEPOSITION OF AUSTIN BRYAN

302 hh DH HH OS HHH HHH HDD

December 7, 2000 Fort Worth, Texas

April L. Stuck

App. 12

physician. Is he engaged for the sole purpose of

reviewing forms or does he actually treat people that

work here?

A. His role was solely to review these forms

and give an opinion on what was on the form.

Q. Did he give or was - - strike that. Was he

given criteria to follow as he was reviewing or was it

just purely at his discretion?

A. Well - - and I think I’m the one that

absolutely - - I’m confident I was the one that told

him, based on the information that I had been given as

to the conditions in the theater, what the people would

be expected to meet, the criteria, in other words, the

working conditions, in other words, and that I - - I told

him that the people needed to be medically qualified to

do a number of different tasks, to be able to sustain

themselves and in a really individualistic type way. In

other words, they would have minimal support. By

that I mean they would have to go out and find their

own place to live, cook their own food or go find

food.

At that time, you recall, it was a war area. Our

people were turned over to the United Nations and

became a part of a United Nations workforce that

was then assigned organizationally to the various

police departments. And we told - - I told the doctor,

Here are the conditions as they are - - have been

described to me.

I tell you, I was never there. I have not been

there since. I have no way of knowing whether the

conditions are as bad as they were described to me. But

App. 13

they required someone that was fairly independent to

move quickly. By that I mean they were still being

fired at. It was a dangerous, hazardous situation.

So the physical aspects of this was a very

important point that was made to us by the

Department of State.

Q. Did you convey this to Dr. McDougall in

a memo or did you just call him and say, Doctor - -

A. No.

Q. Let me finish. I’m going to give you a

pile of documents, and I want you to evaluate them in

light of the following. And you just relayed it to him.

How did you get that message to him?

A. I went to his office, and I took the copy of

the physical forms that we would send out to the

individuals. And I showed him what I would be

bringing him. I told him what we were looking for

verbally. 1 outlined that in as much detail and

answered his questions as to what we wanted him to

do and why we wanted him to do it. I explained all of

thattohim.

And during that conversation my recollection

was that he asked me questions. I responded to those,

those questions, and further defined what those - -

what we wanted him to do.

Q. To your knowledge, had he ever done

any work for like this for DynCorp before?

A. Ihave no idea.

Q. How did you select him to do this task?

A. — I simply --I called him. I had occasion to

use him as a personal doctor. And I called him and

said, Would you do this. He’s my personal physician

now.

App. 14

I've had him as a personal physician since about

that time. I heard about him through some friends and

went to him. And oh, it was probably shortly after |

went back to work that I went to him and asked him if

he would do this.

Q. To your knowledge, is he still doing this

for DynCorp?

A. Yes, sir, he is.

Q. Did you show him on the forms certain

eke

A. Yes, sir.

Q. And as a result of that, the doctor or,

again, someone in his staff, classified the person. And

you've talked about the classifications. I think there

was what one, two and three or A, B and C, something

to that effect?

A. One, two and three.

Q. And you-all relied on that classification?

A. Yes, sir.

Q. Now, you went through the criteria that

you talked with Dr. McDougall about orally, and one

was number of tasks is what I wrote down.

Do you mean working long hours or how did

you explain that to him?

A. I’m not absolutely certain what detail [

went into with him. But I did want him to understand

that we had had complaints from the State

Department, from the United Nations, about the

medical condition of some of our personnel. We had

people that were unable to walk up flights of stairs,

that could not conduct foot patrols.

App. 15

There were instances where the people were in

jeopardy simply because we could not move quickly

because their limbs or - - you know, they were either

arthritic - - I say arthritic. Perhaps the wrong term.

Stiff, had difficulty moving.

What I tried to describe to him was the fact that

it was absolutely essential that these people had good

health and were able to do the mission that we were

asked to do and contracted to do. Our job was to

provide people that could do those jobs without any

impairment or any loss of capability.

Q. You said you'd received complaints from

the government. Was that at this particular or for this

particular job in Bosnia?

A. Yes, sir.

Q. They were complaining because the

recruits from earlier, the IPM recruits, were unable to

do some of the physical tasks that they were called

upon to do?

A. That’s correct. Some were unable to

perform or performed minimally.

Q. And what happened to those people,

those people that couldn’t walk upstairs or pull foot

patrols or pull long hours?

I'm not certain what happened to

them. Some of them quit. Some of them were

medically evacuated. Some of them remained in place

and were given other - - less duties. I don’t remember

if any

App. 16

Q. Did you all work off of some chart

though that said if you’re six feet, you can be in this

range and not be overweight or things of that sort.

A. We relied on what the doctor would tell

us. If he said he was overweight, then we assumed

that the doctor knew what that chart was for his height,

age. And that’s one of the things that doctors do for

you. They tell you he’s overweight. There’s some

standard that’s a medical standard.

Q. So then it was the combination of being,

according to this report, overweight, a smoker and on

these medications that caused you-all to - - the team to

say, We're not going to hire this gentleman?

A. Yes, sir.

Q. Was there any one criteria that stood out?

A. No. I don’t think so. I think, as I

mentioned earlier, that we tried to look at the whole

guy. And I have to tell you that we were doing

everything we could to get people that were qualified

to avoid the risk of having somebody that was not

qualified get over there. We wanted people that could

do the job.

The job performance was one of the principal -

elements that we looked at. Can he do it. And when

the doctor says that he’s not recommended, then that

carries a lot of weight.

QO. Did anyone else other than the team

participate in this one?

A. My recollection was that we showed this -

- I personally took the file, showed this to Mr. Joe Estill.

Because I showed him what I was - - what - - you know,

the statement that I read to Rick over the telephone. |

personally called him and read that statement to him,

after it was approved by Mr. Joe Estill.

App. 17

Q. Who was Joe Estill?

A. _He’s our vice-president in charge of

human resources. P

Q. Is he still here?

A. Yes, sir.

Q. He gave you a statement that you can

read to Mr. Stumbo?

A. He approved the statements that we had,

yes, sir.

Q. Did he have to approve statements given

to all people that were not hired?

A. I don’t know about all. That's awful

encompassing. I don’t know that. I know in this case

that since I was the one that was going to call Mr.

Stumbo, I wanted to be sure that what I said to

**e*

App. 18

12 August 1996

Richard Stumbo

2351 Mountain Road

Front Royal, VA 22630

Dear Mr. Stumbo:

Enclosed please find materials in response to

our most recent conversation with you on the Bosnia

IPM contract. Please complete the requirements listed

below and follow the instructions for returning the

paperwork to our offices. Upon successful completion

of the below listed requirements final processing will

take place in New York City prior to departure for

Zagreb, Croatia and then Bosnia. In order to meet the

quick response time-set forth by our customer you

must respond immediately to the criteria in this letter.

It is important that the day you receive this

package you make arrangements to complete the

below tasks within a day or two after receipt of this

package. You will not be able to travel without

completing these tasks. I apologize for the short turn

on these items but we are required to have this

information prior to arrival of any candidate in Bosnia.

First, you must complete a pre-employment

drug screen and physical. Please take the enclosed

Chain of Custody form to the below address for your

pre-employment drug screen. This clinic has been

informed of our process and should not charge you for

the collection. If they do please keep your receipt and

return it with the other paperwork.

App. 19

Please call the clinic at the phone number listed

to schedule a time for your drug screen.

Roche Labs/ Labcorp

611 Jefferson Davis Hwy #A1

Fredericksburg, VA

703-373-9673 call first

The enclosed Medical Examination form should

be used for your physical examination. Please make an

immediate appointment with your physician and have

this medical form completed. It is important that the

physician complete the last page (medical classification

and clearance form) of this package. If this form is not

completed DynCorp cannot employ you. This medical

classification and clearance form must be faxed to our

offices immediately upon receipt. The fax number,

817-737-1608, is written on the medical form. Again,

keep your receipt and return it with the other

paperwork. Our customer is currently not paying for

medical examinations but we are in negotiations with

them on this matter. .

Second, you must obtain 2 copies of your

passport, 4 additional passport photos, and copies of

your dental x-rays. This information will be used to

process visas in-country and will be maintain in an in-

county personal file in case of accident while in-

country.

App. 20

Third, you must complete the below listed forms

located in your package and return them as instructed.

Please print on all forms so that the information is

legible.

: H Foreign Service Agreement (your

contract) - read carefully and sign the signature page at

the back. Copies of this agreement will be sent to

Zagreb and maintained in a personal file. Returned by

Federal Express.

2. Employee Profile Form - complete all

blanks on this form. Return by Federal Express.

3. Employee Uniform Size inventory -

complete and return by fax immediately. Return

original by Federal Express.

The offer of employment described in the

enclosed Foreign Service Agreement is fully contingent

on satisfactory results of the Department of State

screenings, Pre-employment Drug Screen and Medical

Examination. It is important that you do not leave

current employment, sell property, etc.. until DynCorp

receives positive completion of all screenings. We will

inform you upon receipt of all screening results.

Listed below is a comprehensive list of the

enclosed materials and completion instructions.

1. Medical Examination Form with Medical

Classification and Clearance Form (complete medical

and return.

Medical Classification and Clearance Form by

fax immediately). Should complete immediately upon

receipt of package. Return original by Federal Express.

App. 21

y Chain of Custody Form (take to Drug

Screen Facility listed above immediately upon receipt

of package. Return original by Federal Express.

2 Obtain 2 copies of current passport

photo’s (return by Federal Express package).

a Obtain 4 copies of passport photo’s

(return by Federal Express package).

oe Obtain a copy of dental x-rays (return by

Federal Express package).

6. Employee Profile with every blank filled-

in (return by Federal Express package).

7. Employee Uniform Size Inventory (fax to

above fax number immediately).

8. Foreign Service Agreement signed (return

ALL pages including signed page by Federal Express

package).

Upon successful completion of your medical

examination and drug screen we will contact you by

phone and give instructions concerning final

processing in New York.

If you have any questions concerning these

materials please feel free to contact the undersigned

Art Keener, or Lynn Holland at 817-737-1690, 1691, or

1693, 1569 between 0800 and 1700. We look forward to

success in this process and hope to personally meet

you in the near future.

Sincerely,

William E. Marcantel

Director of Operations

App. 22

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

RICHARD M. STUMBO,

‘ Plaintiff,

VS.

DYNCORP PROCUREMENT SYSTEMS, INC.,

DYNCORP AEROSPACE, INC.,

DYNCORP AEROSPACE OPERATIONS, INC.,

and

DYNCORP AEROSPACE OPERATIONS —

(U.K.), LTD.,

Defendants.

CIVIL ACTION NO. 5:00CV00007

Perey TT SST

ORAL DEPOSITION OF PETER MCDOUGALL

Peeerrrrrr ror rrr th

December 7, 2000 Fort Worth, Texas

April L. Struck ©

App. 23

have a certain condition. The HMO would sent that

record and recommendation for treatment. You-all

would evaluate that or is that too simple or am I off

base?

A. _ It doesn’t’ work like that.

Q. Would you please explain.

A. — A doctor would request to have another

doctor see a patient to do a procedure, and they have to

have an authorization number. And we would provide

that authorization number.

Q. I see. And how are you compensated? Is

it on a per review basis, hourly basis?

A. Salary.

Q. Salary?

A. Uh-huh

Q. Youalso provide services for DynCorp?

A. Yes.

QO. And what do you do for them?

A. _ I review medical applications that they

send to me. |

Q. Are these any particular type of

applications or just all types in terms of are they for

employees of DynCorp to work in their offices here or

abroad or - -

A. No. These are strictly for foreign posts

ke*

App. 24

had this relationship with DynCorp? What was the

first communication with you about what ‘DynCorp

would expect you to do?

A. He asked me to review medical

application reports that were sent to DynCorp and to

give my opinion.

Q. Opinion of what? |

A. Opinion of whether medically these

people would be able to be acceptable for these stated

posts overseas.

Q. Did he tell you anything else?

A. He gave me a - - initially I remember he

gave me about a three- or four-page memo on the

circumstances that these people likely would encounter

the job - - what the job entailed. It was fairly detailed

as I remember.

Q. Do you remember’ what the

circumstances were?

A. At that time the circumstances as stated

in, let’s say, this memo were quite vigorous. People

would be in remote areas. People could be cut off from

services. I mean, it was - - it was significant. Not your

typical job in an established community.

I believe it also talked about having to do

physical activity. And if I’m not mistaken, there as

something about terrain hills, something like that. The

reason that I was initially contacted, I think, any person

was contacted was because this was a program that

had, I believe - - at least in the Bosnia, had not been

going for that long. And there was some question that

some people had got there and were physically just not

able to perform the job.

App. 25

Q. How did you learn that?

A. — Austin Bryan told me that.

Q. Did he give you examples of how they

couldn't do their job?

A. People physically couldn’t climb up hills.

I can specifically remember that. This was stated as a

fairly rigorous job.

Q. You say climb up hills. You don’t mean

like climbing Everest or something like that.

A. No. I believe that means that this job, to

my understanding, was very much an _ outside

observation sort of patrol - - maybe patrol - - patrol

would probably be - - this was kind of walking - - the

impression I got at that time, this was walking the beat

in a very rugged surrounding. _

Q. Did you understand that people would

be sleeping out of doors for successive days such as in

tents and that kind of thing?

A. I believe that was a living condition that

that was possible.

Q. And you say walking. You mean like a

march of sorts from one location to another over rough

terrain or what did you understand?

A. No. Just that people in a - - I mean, I

knew as much from reading the paper and looking at

the news about Bosnia as the average citizen. And I

could imagine the circumstances that people might be

at for the stated job. And that’s what I would use in

‘my judgment.

Q. All right. And so I can separate them,

were those things that you knew from your

independent reading and watching the evening news

or were these things that Mr. Bryan told you or were

they contained in that memo? ~

App. 26

A. I would say the job description was

contained in the description of the job that I read.

Q. And that memo was delivered by Mr.

Bryan?

A. Yes.

Q. Was there anything in the memo about

certain medical conditions that should be watched or

kk

his concern, as he relayed it, was he had people that

couldn’t walk up a flight of stairs. And that was a

problem.

When you said walk up hills, are you relating it

back to his concerns that they had hired people that

couldn’t walk up flights of stairs?

A. — I don’t know that he expressed to me the

analogy of walking up stairs.

Q. Allright. But in any event, when you say

walking up hills and physically demanding, you're

referring to what he was relaying to you about the

problems with DynCorp’s medical evaluation process

in that prior to you coming on the scene they had had

people - - Ill tell you he just gave his deposition - - that

literally couldn’t walk up a flight of stairs?

A. Soyour - - the question is.

Q. The question is, when you talk about

physically demanding, those are the types of

circumstances that he was describing to you, and

therefore, I want you to be able to find me people or

screen people that don’t have problems such as the

ones we're having over there right now?

App. 27

ae _ Lesh

A. He explained some job requirement

situations they had for these postings, and I’m going to

use my medical judgment to review these forms and

form an opinion. And I will give DynCorp that

opinion.

Q. And what I’m trying to get at - - and

forgive me if you've already gone over this and maybe

I didn’t hear it - - but what were those conditions, those

physical conditions, that these people were going to

have to endure?

A. — Unstable living conditions or at least not

dependable, could well be not living indoors, could

well be subjected to some physical hardships. Those

are the types of things.

Q. Did you ever comment to Mr. Byran or

anyone at DynCorp over the term that you've

evaluated these applications that you'd like to see some

other information or other information would be

helpful to you in this process?

A. I don’t think I’ve specifically requested an

updated job description.

Q. __ But in addition - - well, actually, you've

been provided updated job description either orally or

in writing over the years?

A. Verbally.

Q. But did you ever say, You know, it would

be nice if you had the examining physicians to talk

eek

App. 28

Texas Health Care Harris Center Southwest

6100 Harris Parkway

Suite 250

Forth Worth, TX 76132

(817) 346-5111

Peter G. McDougall, M.D., CCFP, AAFP DEA #

Bob Lilli, M.D., AAFP AM7511416

Grace Grajales, R.N., FNP-C DEA #

BL1417915

Name: Richard Stumbo

Address: Date: 7/6/96

Rx

Overweight smoker on two hypertension meds.

Wouldn’t recommend for strenuous work.

/s/ Peter G. McDougall

Label

Refill times

M.D. ee.

Product selection permitted Dispense as written

App. 29

Our physician has reviewed your medical records and

has advised us that you may not be medically suited

for the job environment in Bosnia. This is a heads-up

and to recommend that you make no _ further

preparations to go to Bosnia as an IPM. We will advise

you of the final determination on Monday, September

9, 1996.

Statement ag:eed to and as suggested by Joe Estill,

Human Resources Dept.

Delivered by /s/ Austin Bryan

App. 30

Richard M. Stumbo

2381 Mountain Rd.

Front Royal, Va.

Currently Working

Algeria, Address:

Richard M. Stumbo

M.W. Kellogg

6458 / DZBH

P.O. Box 4522

Houston, Tx. 77210-4522

Date 12-18-97

Honorable John Warner

225 Russell Building

Washington, D.C. 20510

Dear Senator Warner

My family and I had the pleasure of meeting

you years ago at Andy & Mary Scott’s Guests’ Family

Farm Picnic near Front Royal Virginia. Andy asked me

to assist in security arrangements for the picnic. It was

a pleasure working with Andy and Mary Scott at their

home. I retired from the D.C. Metropolitan Police

Department in August of 1990 and have worked

security assignments since then. In March of 1996 I

applied for a job with DynCorp Aerospace Inc. a State

Department contractor supplying American Police

Monitors

App. 31

months later other friends of mine applied for this

same job with high blood pressure and were accepted

and currently serving in Bosnia. Later I called back to

DynCorp talking to a secretary whom I had talked to in

the past. She told me to reapply for the job because my

position had been given to a friend of someone in the

DynCorp office.

When I called about the job openings I was told

that the positions were filled. I filed a complaint with

the U.S. Equal Employment Opportunity Commission

in October 1996, at the Dallas Texas Office. Ms. Olga

Cardennas (phone: 214-655-3392 fax 214-655-3443) was

assigned my case. A document was sent to me

(enclosed) of the charges against DynCorp. In over a

year I have received this document and one phone call

from Ms. Cardennas. I have called many times and left

a message on her telephone only to receive no reply. I

would like to know the status of this case and receive

some kind of update from time to time.

kak

App. 32