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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 930

## Text

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
SA ET BIG i irrtierirttinthneincsicrreerniemenennenenae iv
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1031%3A2. Public record. Not legal advice.