Petition for Writ of Certiorari — Kellogg v. Energy Safety Services, Inc. (No. 08-1013)
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Supreme Court, U.S.
4 a), e FILED
| 081013 FEB 9 - 2009
In The OFFICE OF THE CLERK
Supreme Court of the United States
IREANE KELLOGG,
Petitioner,
Vv.
ENERGY SAFETY SERVICES, INC.,
d/b/a OILIND SAFETY, an Arizona Corporation,
Respondent.
On Petition For A Writ Of Certiorari
To The Tenth Circuit Court Of Appeals
PETITION FOR A WRIT OF CERTIORARI
BRUCE S. ASAY
Counsel of Record
MEREDITH F. ASAY
ASSOCIATED LEGAL GROUP, LLC
1807 Capitol Ave. Ste. 203
Cheyenne, WY 82001
Telephone: (307) 632-2888
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED FOR REVIEW
The proceeding involves a question of exceptional
importance and first impression:
In Wyoming, a rural state, is driving a major life
activity under the Americans with Disabilities Act
(“ADA”) and the ADA Amendments Act of 2008
(“Amendments”), 42 U.S.C. §12101 et seq. (2009)?
Petitioner requests that the decision of the Tenth
Circuit Court of Appeals be reviewed as its holding
that driving is not a major life activity in Wyoming
under the Americans with Disabilities Act (ADA), is a
vitally important policy decision that runs counter to
the trend in the law and the interests of the rural
disabled. Moreover, the decision while consistent with
the llth Circuit in Chenoweth v. Hillsborough Co.,
250 F.3d 1328 (11th Cir. 2001), is inconsistent with
the developing law in this court, other circuits, as
well as the recently enacted ADA Amendments Act of
2008. Did the Tenth Circuit Court of Appeals err?
il
LIST OF PARTIES
The caption of the case in this Court contains the
names of all the parties.
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW............ i
Re WE III indies chan psctkiosssevissvnssenesicancnedaseaniin il
Ee TT ET Bas ins cvnndespiccesescevecevesseversoes iii
TABLE OF AUTHORITIES 0. ccsccccsscccossonsveseetmerncees Vv
CSPOT TATMMIIY vavcnetesccesessssccocscssccsescsscecscnesezes
BASIS FOR JURISDICTION IN THIS COURT... 2
CONSTITUTIONAL PROVISIONS, TREATIES,
STATUTES, ORDINANCES, AND REGULA-
Fe CI yo sinsessssavivevssenewsansnessccsensesenshs
STATEMENT OF THE CABE....iicrccresercsercccossscoosaes
ARGUMENT FOR GRANTING THE WRIT.........
I. This Court should grant the petition to
resolve a conflict between the decision of
the Tenth Circuit Court of Appeals and de-
cisions from other jurisdictions over
whether driving should be considered a
major life activity in rural areas such as
Wyoming under the Americans with Dis-
abilities Act as amended, 42 U.S.C. §12101
Be GI. oxcnteicavnnteccsituibecinindcaeeascaaiangenenaeseions
II. The decision of the Tenth Circuit Court of
Appeals is contrary to the Court’s opinion
in Toyota Motor Mfg., KY., Inc. v. Williams,
ae CF, ROW Ce sisciaveiscncsstcsntvicvincauoniioies
1V
TABLE OF CONTENTS -— Continued
Page
III. The Tenth Circuit Opinion is contrary to
recent legislation which has expanded the
scope of the Americans with Disabilities
Pet, 42 UB... GIZIGL OF G09. vasccsccevsesicscesssens 26
CONCLUSION ........... ROPE ES ORT Ne OTE RS RNY 31
APPEND”:
Opinion of the United States Court of Appeals
for the Tenth Circuit Filed Oct. 15, 2008........ App. l
Amended Judgment in the United States
District Court for the District of Wyoming
Fi BOR. BF ys SET inhi ierndeisusansiemnnn App. 26
Judgment in the United States District Court
for the District of Wyoming Filed Aug. 17,
BOT insti ib casas spo cas ieniaheesnpscbakeaniape idiomas App. 28
Order on Mandate in the United States Dis-
trict Court for the District of Wyoming Filed
I or a I Vici Ss rink dabianinav iceuniegoeseermmnieniuenmnaes App. 30
Order Denying Rehearing of the United States
Court of Appeals for the Tenth Circuit Filed
i Be I biel std cites rh aha Sciaseas atenasmeduenel App. 31
Judge Brimmer’s Letter to Senators, dated
EPG S , FO onisneniaieieesceidvecs cotinine App. 33
Notice of Appeal in the United States District
Court for the District of Wyoming................. App. 36
Ireane Kellogg’s Petition for Rehearing
En Banc in the United States Court of Ap-
peals for the Tenth Circuit Filed October 29,
FOP sicsttivtecinscnbasiipentia cape adeadatiaabe App. 38
TABLE OF AUTHORITIES
Page
CASES
Abbott v. Bragdon, 107 F.3d 934 (1st Cir. 1997)......8, 9
Adams v. Rice, 531 F.3d 936 (D.C. Cir. 2008).............. 8
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555
SI scac ashe vuiupcaxatsliacvsiveswuibatbunteinveuleiabiensaswuselsl 23, 24
Arnold v. County of Cook, 220 F. Supp. 2d 893
BE EMI hi vikekseiauncdnsacaecesceearadsbaanicleusacanidousess 18
Bailey v. United States, 516 U.S. 137 (1995)............... 9
Bragdon v. Abbott, 524 U.S. 624 (1998)........... 9, 14, 24
Chenoweth v. Hillsborough County, 250 F.3d
Re CA We FE incdcctisthcsssinsiscoteiasacccnne 16, 17, 19
Colwell v. Suffolk County Police Dept., 158 F.3d
I Me Wa eink selcims a ikalth eopasidewexdanes 16, 18
Doe v. Kohn Nast and Graf, PC, 862 F. Supp.
es. ID issn sdlsayscicelcicnsh tanbaavcicusenecn séess 10
Dutcher v. Ingalls Shipbuilding, 53 F.3d 867
IRN I Ris skit tlic ein aii s cu sedenbaseptendlcdMrcdedsicoomes 16
EEOC v. Voss Electrical Co., 257 F. Supp. 2d
Be Ee RPM WD oad via siccdsationerceracdeeerevicscnesece 8
Endlich v. Yeliow Corp., 182 Fed. App. 825
I, a as 18
Harding v. Ciambro Corps., 436 F.3d 223
(RT ee re? eee eT ser a PN AtN | NEMO eR 8
Head v. Glacier Northwest Inc., 413 F.3d 1053
I a al 8
vi
TABLE OF AUTHORITIES — Continued
Page
Holt v. Grand Lake Mental Health Ctr, Inc.,
SO Fe FOS CAE TUE, BOOB) oo sccescscesesscccooccacssccocoss 11
Kellogg v. Energy Safety Services, Inc., 544 F.3d
ER CRIES DD iesssccscsncsvenvasesscssesrscnensiatsesonses ,
Knox v. City of Monroe, Civil Action No. 07-606,
2008 WL 5157913 (W.D.La. 2008)...................cc00e 27
Lawson v. CSX Transportation Inc., 245 F.3d
Pe I, I i ssis cay scscdesvunecasesWbersasbcatwsessscdsness 8
Norris v. Allred-Sysco Food Services, Inc., 948
B, e. SEES C.D. CAL. BBBG) ....0cccssscscnccccoossesssses 19
Pack v. KMart Corp., 166 F.3d 1300 (10th Cir.
Na dbct ins ool ides Sinaue bibs sansaveiaed pandpssasusseuceresks 8
Regional Economic Community v. City of
Middletown, 294 F.3d 35 (2nd Cir. 2002)......... 16,18
Runnebaum v. Nations Bank of Md., 123 F.3d
i ca atc spvesasubhabpieduauenss 13
Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d
aa as i Te i od 16
Smith v. United States, 508 U.S. 223 (1998)............... 9
Soileau v. Quilford of Maine, Inc., 105 F.3d 121
a i a Lai on wish eeu cidatabondaanniakanenks 8
Sutton v. Unitea Air Lines, Inc., 527 U.S. 471
lic ie un led encdnecia Cuniameas 22, 24, 27, 28
Taylor v. Phoenixville School District, 184 F.3d .
IE, I oii casi ch. ccassescahvstaweanssustaiuboosiacsavecss 8
Toyota Motor Mfg., KY., Inc. v. Wiliiams, 534
as Santini ddndanvesnswavsanboucras passim
vii
TABLE OF AUTHORITIES — Continued
Page
Williams v. Channel Master Satellite Sys., Inc.,
101 F.8d 346 (4th Cir. 1996), cert. denied,
Se rae, EE BIEN Rivecakacokdunsdetdacaccoucesensieusaseukecesess 13
Workmen v. Frito-Lay, Inc., 165 F.3d 460 (6th
2, AA SR a RE mei Fe Be ST RRR ron PaO 8
FEDERAL STATUTES
Ns ED osc nvniindcsvasienscovacenssssceduncedssvanenetiae 2,3
I eles dina sh suuat snatch biaddebaedasenebeuneauaaeuaen 6
BB UGG. BEBEOE ooicceccssscsscocsccocesseseavesss 1, 13, 15; 18, 22
Oe ee ET ov icchaknghsenccsvscsanecscnscenccecnervocesoauiom 23
ee. ORD on vives cicvcccevnsscvesscsvcesesnacisbarecties 4,7
ann: A oid pcb Jas bvecoucadiesdeisaisekisinbamenreeans passim
Rehabilitation Act of 1973, 29 U.S.C. §706
US Ghai cet cued xin) sc napuathaaeeinkadacks Sikeeboucdousiirnededs 9,16
ADA Amendments Act of 2008, 42 U.S.C.
I aa oo uses eae cpubeuanneadaiaasan tell 20, 26
FEDERAL REGULATIONS
Bs ee NN br iincnisansccuscanexsacasasssineesescanCinmebana 4,8
ee ts SI agi ss dc cnnnndsxionvacevscvmsssevsscanserveras 23, 24
RULES
COUN TOE FIGS BICD) 6..cccccccccscccosssssecccrsasescsscesecnes 2
DUNTOME Court Rule TEO)...1...0...ccccsccsersccsceccssscnsonencsess 2
TABLE OF AUTHORITIES — Continued
Page
OTHER AUTHORITIES
American Heritage Dictionary of English
Language 1084 (3rd Edition 1992)... eee eeeeee 9
Webster’s 9th New Collegiate Dictionary 718
Nachle tinsel i sdescuiaiesapites usu saineh-anpacbceastuceonset: 9, 22
1
OPINIONS BELOW
This action was initiated on May 5, 2006 by the
Plaintiff, Ireane Kellogg (Petitioner herein) wherein
she claimed that she had been terminated from her
employment because of a disability contrary to the
provisions of the Americans With Disabilities Act
(“ADA”), 42 U.S.C. §12101 et seg. The employer, the
Respondent Ojilind, filed a Motion for Summary
Judgment on March 19, 2007, which was denied, in
applicable part on May 1, 2007 wherein the District
Court found that the Petitioner, Plaintiff below had
set forth a claim under the Americans With Disabili-
ties Act. As part of its opinion, the District Court
found that driving was a major life activity. The
matter was tried to a jury which resulted in a judg-
ment in the Petitioner’s favor on August 17, 2007.
The Petitioner was awarded $184,435 plus post-
judgment interest for her claims under the ADA as
well as the Fair Labor Standards Act. Appendix App.
28, 29. Pursuant to motion, the Court on September
27, 2007 amended its initial judgment and modified
the ADA award consistent with the statute. Prior to
this time, on September 14, 2007, the Respondent
had filed an appeal with the Tenth Circuit Court of
Appeals. App. 36, 37. A Notice of Amended Appeal
was filed on October 24, 2007. The Tenth Circuit
Court of Appeals, on October 15, 2008, vacated the
jury’s verdict on the ADA claim while affirming the
FLSA claim. App. 1-25. The appellate court found
that driving was not a major life activity even in a
rural state such as Wyoming and remanded the
2
matter for further proceedings. The Petitioner filed a
Petition for Rehearing en banc with the Tenth Circuit
on October 29, 2008 which petition was denied on
November 10, 2008. App. 38-59; App. 31. The decision
was split with Judge Holloway voting to grant a panel
rehearing on the Petitioner’s argument that driving is
a major life activity in a rural state such as Wyoming.
The Tenth Circuit Decision is reprinted in Appendix,
App. 1-25. The citation for the opinion is Kellogg uv.
Energy Safety Services, Inc., 544 F.3d 1121 (10th Cir.
2008).
S
BASIS FOR JURISDICTION IN THIS COURT
This action was filed in the United States Dis-
trict Court for the District of Wyoming, which entered
judgment and amended judgment in favor of the
Petitioner. An appeal was timely filed to the Tenth
Circuit Court of Appeals by the Respondent which
resulted in a reversal in part on October 15, 2008. As
a Petition for Rehearing en banc was filed, a split
opinion denying said Petition for Rehearing was filed
on November 10, 2008. This Petition for Certiorari
was timely filed under Supreme Court Rule 13(1) and
this Court has jurisdiction pursuant to 28 U.S.C.
§1254(1).
Pursuant to Supreme Court Rule 14(e), Petitioner
provides the following specific information:
(i)
(11)
(ini)
(iv)
(v)
3
Date of judgment or order sought to be
reviewed was entered:
October 15, 2008 by a panel of the Tenth
Circuit Court of Appeals
Date of any order respecting rehear-
ing/extension of time:
An Order Denying the Petitioners’ Peti-
tion for Rehearing was entered on No-
vember 10, 2008 in a split opinion,
Judge Holloway voting to grant a panel
rehearing. The Petition for Rehearing en
Banc was also denied.
Rule 12.5 considerations:
Not applicable to this Petition
Statutory provision conferring jurisdic-
tion:
28 U.S.C. §1254(1)
Rule 29.4 statement:
Not applicable to this Petition
+
4
CONSTITUTIONAL PROVISIONS,
TREATIES, STATUTES, ORDINANCES,
AND REGULATIONS INVOLVED
42 U.S.C. §12112(2) (2009)
(A) In general
For purposes of paragraph (1), major life ac-
tivities include, but are not limited to, caring
for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learn-
ing, reading, concentrating, thinking, com-
municating, and working.
29 C.F.R. §1630.2(i)
Major life activities are functions such as
caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breath-
ing, learning and working.
«
STATEMENT OF THE CASE
Respondent, Energy Safety Services, Inc., d/b/a
Oilind Safety (“Oilind”) is an industrial safety com-
pany that provides safety related services, such as
training and environmental monitoring to industrial
customers. Oilind operates sixteen (16) offices in ten
states and during the time in question had approxi-
mately 150 employees. The Worland, Wyoming office
is one of Oilind’s four oilfield offices.
5
Respondent hired Petitioner Ireane Kellogg as a
safety technician in Worland, Wyoming, in June 2004.
As a safety technician, Ms. Kellogg traveled to oil
fields to provide safety services to clients. While Ms.
Kellogg occasionally worked in the shop, when in the
field, she would pick up the company vehicle early in
the morning and drive approximately two hours to
the worksite where she would typically work a
twelve-hour shift before driving back to the office in
Worland.
Due to the excessive hours of work, Ms. Kellogg
began to note incidents in which she would “space
out” while driving to and from work. As her working
conditions worsened, so did her health. On January
20, 2005, Ms. Kellogg missed an entire day of work
and yet had no recollection that she had missed a day.
While she was seen by a doctor at that time, it was
two days later when she lost consciousness in front of
her children, that Ms. Kellogg was hospitalized in
Worland, Wyoming. She was then transferred by
ambulance to a Billings, Montana hospital. In the
Billings hospital, she was diagnosed by a neurologist
as having complex partial seizures, a form of epilepsy.
While in the hospital, she was told by her em-
ployer, Oilind, that she could return to work when
she was released. In February of 2005, Ms. Kellogg
took a doctor’s release to the Worland office, which
allowed her to return to work on a limited basis. She
could work, but not drive until she followed up with
her doctor. Ms. Kellogg requested that she be able to
go back to work. The district manager, who would
6
have allowed her to work, as he was shorthanded,
indicated that he would need to speak with Oilind’s
corporate headquarters. Subsequently, as she could
not get a definitive answer, Ms. Kellogg returned to
the shop every week to check on the status of her job
and was repeatedly rebuffed. Finally, she was told by
the district manager that she was considered “a
liability” by Oilind.
In a letter dated May 5, 2005, Oilind informed
Ms. Kellogg that it was “not able to employ her in a
safety sensitive position” without a full release from
her doctor. As Ms. Kellogg was required to turn in her
keys and her logbook, she deemed herself fired. She
brought suit under the Americans with Disabilities
Act (ADA) 42 U.S.C. §12112 et seg. and the Fair
Labor Standards Act (FLSA) 29 U.S.C. §201 et seq. in
the United States District Court for the District of
Wyoming in part to determine whether Respondent
had discriminated against her due to her disability or
its perception of her disability.
In the subsequent trial, the jury, after an eight-
day trial, found in her favor on both the ADA and
FLSA claims. The judgment of the District Court was
appealed to the Tenth Circuit Court of Appeals under
both the ADA and FLSA. The Tenth Circuit Panel
Majority in a decision dated October 15, 2008 upheld
the jury verdict on the FLSA claim, but reversed the
ADA claim and remanded it for a retrial due to the
jury instruction which had stated to the jury that
“driving” was a major life activity. A subsequent
Petition for Rehearing en banc was filed with the
7
Tenth Circuit on October 29, 2008. The Petition was
denied on November 10, 2008. The citation for the
opinion is Kellogg v. Energy Safety Services, Inc., 544
F.3d 1121 (10th Cir. 2008).
This case involves the inclusion of driving as a
“major life activity” as found in the Americans with
Disabilities Act (ADA), which defines a disability as
“a physical or mental impairment that substantially
limits one or more ... major life activities.” 42 U.S.C.
§12102(2)(A), particularly as it relates to rural condi-
tions in the state of Wyoming. This issue is particu-
larly important.
ry
vy
ARGUMENT FOR GRANTING THE WRIT
{t. This Court should grant the petition to
resolve a conflict between the decision of the
Tenth Circuit Court of Appeals and deci-
sions from other jurisdictions over whether
driving should be considered a major life ac-
tivity in rural areas such as Wyoming under
the Americans with Disabilities Act as
amended, 42 U.S.C. §12101 et seq.
A “major life activity” is not specifically defined in
the ADA or specifically in the Code of Federal Regula-
tions (“C.F.R.”). Nevertheless, the C.F.R. defines “major
life activities” by functionality in that it lists a few
nonexclusive examples. It states: “Major life activities
means functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking,
8
breathing, learning, and working”. 29 C.FR.
§1630.2(i). (emphasis added) As driving is not listed
by the C.F.R., the Tenth Circuit Panel Majority did
not consider it a major life activity.
The enumeration of major life activities is not
meant to be exclusive; the identified functions have
been expanded by comment and jurisprudence. The
comments to the regulations expand the activities to
encompass sitting, standing, lifting and reaching.
Harding v. Ciambro Corps., 486 F.3d 223 (1996).
Other courts have found such items as reproduction
(Abbott v. Bragdon, 107 F.3d 934, 939-941 (1st Cir.
1997)), bowel movements (Workmen v. Frito-Lay, Inc.,
165 F.3d 460 (6th Cir. 1999)), sexual relations (Adams
v. Rice, 531 F.3d 936 (D.C. Cir. 2008)), eating (Lawson v.
CSX Transportation Inc., 245 F.3d 916 (8th Cir. 1999)),
sleeping (Pack v. KMart Corp., 166 F.3d 1300 (10th Cir.
1999)), reading (Head v. Glacier Northwest Inc., 413
F.3d 1053 (9th Cir. 2005)), thinking (Taylor v. Phoenix-
ville School District, 184 F.3d 296 (8rd Cir. 1999)),
communicating (Soileau v. Quilford of Maine, Inc., 105
F.3d 121 (1st Cir. 1997), and interacting with others
(EEOC uv. Voss Electrical Co., 257 F.Supp. 2d 1354
(W.D. Okla. 2003)) to be major life activities.
The activities listed are important; they 2-e of
central importance to individuals’ lives. The listing is
not exclusive, but is broader than those functions
included in the regulation and adopted by the Tenth
Circuit Panel Majority. Although the term “major life
activity” is not defined in the regulation, the Court is
obliged to construe it more broadly and in accordance
9
with its natural (that is, ordinary) meaning. See
Bailey v. United States, 516 U.S. 137 (1995); Smith v.
United States, 508 U.S. 223, 228 (1993). Noted by the
dissent, the Bragdon court (Bragdon v. Abbott, 524
U.S. 624, 631 (1998)), followed this analysis stating
that the plain meaning of the word “major” denotes
comparative importance such as being greater in
rank, dignity or importance. Bragdon, supra quoting
from the American Heritage Dictionary of English
Language 1084 (3rd Edition 1992) and Webster’s 9th
New Collegiate Dictionary 718 (1989). The Court
stated that these definitions strongly suggest that the
touchstone for determining an activity’s inclusion under
the statutory rubric is its significance. Bragdon at 941.
Certainly driving is an essential and significantly
important daily activity, particularly in rural] areas
such as Wyoming, as it encompasses the ability to work,
learn, educate, medicate and recreate and easily quali-
fies under the definition. It is certainly central to life in
rural areas as are other identified major life activities.
Courts have emphasized the importance of major
life activities by viewing them from another perspec-
tive, from the vantage point of the Rehabilitation Act
of 1973, 29 U.S.C. §706 et seq. The Rehabilitation Act
provides an additional perspective as the term “major
life activities” was lifted from the Act. See Bragdon at
941. In utilizing this phraseology as taken from the
Rehabilitation Act, Congress intended that the ADA
would not only retain its original meaning, but would
be accorded “a broad definition” not limited to tradi-
tional handicaps. See Bragdon, at 941. (Had Congress
10
sought to confine the definition of disability merely, it
surely would have written new, more restrictive
language instead of borrowing a descriptive phrase
notable for its breadth.) Doe v. Kohn Nast and Graf,
PC, 862 F. Supp. 1310, 1320 (E.D. Pa. 1994). This
broadened perspective is captured in recent amend-
ments to the ADA.
In providing substance to the definition, the
Supreme Court recently stated, “to be substantially
limited ... , an individual must have an impairment
that prevents or severely restricts the individual from
doing activities that are of central importance to most
people’s daily lives.” Toyota Motor Mfg., KY., Inc. v.
Williams, 534 U.S. 184, 186 (2002). In defining major
life activities, the question is then: What functions
are of central importance to most people’s daily lives?
In Wyoming, when people have to drive to hospitals,
drive for groceries, drive to receive medical attention,
drive to contact law enforcement, drive to schools and
drive to work, driving clearly qualifies as being of
central importance to their rural lives. Judge Cla-
rence Brimmer, the District Court Judge, understood
this as he stated in his order partially granting and
partially denying a motion for summary judgment, as
follows:
This court believes that there is no question
that in Wyoming, where public transporta-
tion is virtually nonexistent, distances be-
tween towns is measured by hours in driving,
economic conditions often require residents
to seek employment outside of their local
11
community, and long winter conditions sig-
nificantly limit foot or bicycle travel, driving
is clearly a major life activity. See Toyota Mo-
tor Mfg., KY, Inc. v. Williams, 534 U.S. 184,
19[7] (2002) (finding that “major life activi-
ties” refers to those activities that are of cen-
tral importance to daily life).
App. 7.
The Tenth Circuit Panel Majority, in their opin-
ion reversing Judge Brimmer’s opinion found that .
driving was not a major life activity and that driving
is simply “a means to an end”, a minor concern for
some, discretionary. The Majority stated:
It cannot be disputed that driving is an ex-
tremely important daily activity to many,
even most, adults. Without the ability to
drive, it may be very difficult to care for one-
self or to work. Indeed, we have recognized
that the activity of “[c]aring for one’s self en-
compasses normal a¢‘ivities of daily living;
including ... driving... ; Holt v. Grand Lake
Mental Health Ctr, Inc., 448 F.3d 762, 767
(10th Cir. 2006)... But driving is, literally, a
means to an end. The activities enumerated
by the EEOC - “caring for oneself, perform-
ing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working”
— are all profoundly more important in and of
themselves than is driving. There are those
who drive just for the pleasure of it (“Hey,
let’s go for a ride”), but that practice is de-
clining and some would now would consider
it unpatriotic. Moreover, the importance of
12
the enumerated activities is not dependent
on where one lives; they are valued as much
by the resident of a major metropolitan area
as by an isolated rural resident. Driving, in
contrast, may be a minor concern for one who
is near convenient mass transit and can walk
to work.
App. 8-9.
The Tenth Circuit Panel Majority fails to appre-
ciate the central importance of driving to people in
rural areas. They state that driving is not a major life
activity because it is not as important as the EEOC
listed functions; simply “a means to an end”. They
also contend that driving is only part of caring for
oneself or working and not a major life activity. This
argument ignores the many other major life activities
that are similar. It is also incorrect in that it is, in
part, a semantical argument as the same shortcoming
(if it is one) can be said about the other enumerated
functions listed by the regulation. For example:
walking. It can be argued that walking is a means to
an end in the same sense that driving would be
considered a means to an end; i.e. walking to the
grocery store to get food or toothpaste. In this vein,
walking is part of “caring for oneself” because people
sometimes walk. to get the necessities, and in fact,
there are even those who walk for pleasure.
A similar argument can be made for speech.
Certain individuals can function quite well without
speaking. They go to work and communicate via
email or they may even communicate by letter purely
13
for pleasure. There are even those monks who have
voluntarily taken a vow of silence and never speak.
Speaking then, while an efficient (though imperfect)
method of communicating, is elective; a life style
choice. Likewise, the same can be said of working or
learning. There is a broad segment of society that is
retired and not at all interested in working. The same
can be said of the many people whose lives are so
tedious and mundane that they require little if any
learning. Given the analysis of the Tenth Circuit
Panel Majority, why are these functions major life
activities? Why is driving less important than read-
ing, sleeping, communicating, sexual relations or
interacting with others? The Tenth Circuit Panel
Majority simply fails to recognize the importance of
driving to people living in rural areas. This is particu-
larly true given the amendments to the ADA. 42
U.S.C. §12101 et seq. (2009).
Whether a function is a major life activity must
be analyzed in relation to people’s daily lives. While a
determination of disability under the statute requires
an individual analysis, an analysis of whether an
activity constitutes a major life activity does not. The
analysis is whether an activity is of central impor-
tance to people’s lives, an analysis that encompasses
a broad view of a disability. See Williams v. Channel
Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir.
1996), cert. denied, 520 U.S. 1240 (1997) quoted in
Runnebaum v. Nations Bank of Md., 123 F.3d 156,
170 (4th Cir. 1997). It is not correct for a court in
Chicago or Miami to determine that driving is not of
14
central importance because everyone can take a bus
or a subway to accomplish the necessities of life. The
importance of the issue must be analyzed in the
context of the people affected.
Judge Clarence Brimmer writing as the District
Court Judge and Judge Holloway, writing in dissent
correctly analyzed this issue. They found that if the
function is of central importance to people in their
daily lives, it is a major life activity. Judge Holloway
noted:
This is an issue of statutory interpretation,
and so we begin with the statutory language:
“major life activity.” Congress chose to use
broad language, employing only everyday
terms, to express its intent regarding the
scope of coverage of the Act. As the Supreme
Court noted in Bragdon v. Abbott, 524 U.S.
624, 631 (1998), Congress had used almost
identical language in the Rehabilitation Act
of 1973. Congress was undoubtedly aware
that the courts would imply from the use of
an established term that Congress intended
the terms to be construed similarly in the
ADA, but Congress did not rely solely on that
established practice. Instead, Congress spe-
cifically provided:
Except as otherwise provided in this
chapter, nothing within this chapter will
be construed to apply a lesser standard
than the standards applied under title
V of the Rehabilitation Act of 1973 or
15
the regulations issued by Federal agen-
cies pursuant to such title.
42 U.S.C. §12201(a).
Thus it is clear that Congress meant the
term “major life activity” to have a wide
reach and we should construe it accordingly.
Giving the words their understood and ac-
cepted meaning, keeping in mind that the
use of this broad language is indicative of
Congressional intent, and applying these
principles in the context of modern life in our
nation, I conclude that driving is clearly a
major life activity, as the district judge held
here.
The majority’s analysis seems to me to rest
almost entirely on comparison of the impor-
tance of the activity of driving with the fun-
damental importance of activities listed in
the EEOC regulation as examples of major
life activities. But as the majority notes, the
EEOC regulations do not command judicial
deference. Moreover, it is undisputed that
the examples in the regulation are not exclu-
sive. ... It seems to me that the majority has
displaced the conventional judicial task of
giving ordinary terms their ordinary mean-
ing and has implemented instead an ap-
proach that takes a list of examples from a
regulation of undetermined authority as hav-
ing set a floor for the meaning of the term
“major,” without stopping to ask whether the
result is consistent with the words Congress
chose to express its intent.
16
The majority notes that the only two circuits
that seem to have addressed this question
directly have held that driving is not in itself
a major life activity. I am not convinced that
these holdings are correct. In Chenoweth v.
Hillsborough County, 250 F.3d 13828 (11th
Cir. 2001), the entire analysis consists of lit-
tle more than three sentences .. .
* * +
The majority also relies on Colwell v. Suffolk
County Police Dept., 158 F.3d 635 (2nd Cir.
1998). However, as Ms. Kellogg points out,
. the Second Circuit has more recently
stated a different view. In Regional Economic
Community v. City of Middletown, 294 F.3d
35 (2nd Cir. 2002), the Second Circuit dealt
with the issue whether an alcoholic or drug
abuser was impaired under definitions set
forth in the ADA and the Rehabilitation Act,
inter alia. The Second Circuit noted that to
be substantially limited under analysis of the
Supreme Court in Toyota Motor Mfg., KY. v.
Williams, 234 U.S. 184 (2002), required re-
striction from activities of central importance
to most people’s daily lives. In that context
the Second Circuit stated:
The function of “caring for one’s self,” we
have held, “encompasses normal activi-
ties of daily living; including feeding
oneself, driving, grooming, and cleaning
home.” Ryan v. Grae & Rybicki, PC., 135
F.3d 867, 871 (2d Cir. 1998) (citing
Dutcher v. Ingalls Shipbuilding, 53 F.3d
723, 726 (5th Cir. 1995)). Williams
17
confirms that such “tasks central to most
people’s daily lives” constitute major life
activities. 534 U.S. at __, 122 S.Ct. at
693.
It has been cogently observed that “there are
compelling reasons to think that driving
should qualify as a major life activity. Driv-
ing appears to be ‘of central importance to
most people’s daily lives.’”
App. 20-25.
The Tenth Circuit Panel Majority quotes in its
opinion Chenoweth, an 11th Circuit opinion for its
support. This Court, an urban court, while stating
that it would not be “far fetched” to consider driving
as a major life activity, viewed the regulation defining
major life activities as limited and closed. It viewed
the list as exclusive, not illustrative. Therefore, in an
urban setting, driving was not as important as the
regulation’s major life activities.
In Chenoweth, the plaintiff had a limited six-
month driving limitation in a major metropolitan
area with public transportation readily available.
This is hardly the case in the instant matter where
public transportation is non-existent and there is no
alternative transportation. Given the fundamental
difference existing between a very rural versus an
urban environment, this Court as did Judge Brim-
mer, should be disinclined to follow Chenoweth’s
18
limited and restricted analysis when compared to the
importance of driving in rural areas.’
While the Tenth Circuit Panel Majority noted
that the Second Circuit in Colwell v. Suffolk County
Police Department, 158 F.3d 635, 643 (2nd Cir. 1998)
had found that driving was not a major life activity, a
more recent 2nd Circuit opinion found to the contrary.
As noted by the dissent, in Regional Economic Com-
munity v. City of Middletown, 294 F.3d 35 (2nd Cir.
2002), the court analyzed those factors which were of
central importance to most people’s daily lives and
found that such tasks as driving constituted major
life activities as they are central to most people’s
daily lives. Quoting Williams, Supra at 643. This is
further inconsistent with a holding in this Circuit,
Endlich v. Yellow Corp., 182 Fed. App. 825, 829 (10th
Cir. 2006), where the Tenth Circuit listed reaching,
throwing, lifting or driving as major life activities.
In Arnold v. County of Cook, 220 F. Supp. 2d 893,
895 (N.D. Ill. 2002), the Court observed that driving
was of central importance in most people’s daily lives
and that certain courts that had held otherwise
(Colwell, supra) were making a u-turn. As driving is
of central importance to people in rural areas, the
court, en banc, should recognize that driving is a
' As Congress has passed the ADA Amendments Act of 2008
(42 U.S.C. §12101), which rejects the strict standard espoused in
Toyota Mfg., infra, any case that utilizes a strict standard must
be reviewed in light of the broad standard of the Amendments.
19
major life activity, particularly when at least one
court has held that driving could be considered a
major life activity in a certain area. Norris v. Allred-
Sysco Food Services, Inc., 948 F. Supp. 1418 (N.D.
Cal, 1996) (“[A]t least in California, driving is a major
life activity.”) If driving can be a major life activity in
California, certainly a Wyoming District Court can
find that it is of central importance in Wyoming.
Although the Chenoweth court and the Panel
Majority found the question to be close, Judge Brim-
mer found that without question driving is a major
life activity to which Judge Holloway agreed. Given
the liberal interpretation to be given the phraseology
as interpreted from the Rehabilitation Act, the ques-
tion must be resolved in favor of the plaintiff, Ms.
Kellogg. Driving constitutes a major life activity
because it is of singular importance to those indi-
viduals in rural areas who depend on it for their daily
lives, both in terms of its importance in their lives but
also in terms of their daily existence. The Court must
be mindful of this rural reality and honor the Con-
gressional intent to allow for a broad interpretation of
the phraseology, major life activity, and find, particu-
larly in rural areas, that driving is a major life activ-
ity within the meaning of the ADA.
20
II. The decision of the Tenth Circuit Court of
Appeals is contrary to the Court’s opinion
in Toyota Motor Mfg., KY., Inc. v. Williams.
The Tenth Circuit Court of Appeals in issuing its
decision utilized an improper standard which defined
major life activities to exclude driving. In Toyota
Motor Mfg., KY., Inc. v. Williams, 534 U.S. 184 (2002)
this Court established a standard which defined
major life activities to include those activities that are
of central importance to daily life.” The Tenth Circuit
ignored this standard in excluding driving as a major
life activity. The Tenth Circuit limited the definition
because driving was not listed by the regulations as
an enumerated major life activity. The decision 1s
contrary to this Court’s holding in Toyota Mfg.
In Toyota Mfg., the employee, claiming to be
disabled from performing her automobile assembly
line job by carpel tunnel syndrome and related im-
pairments, sued her former employer for failing to
provide her with a reasonable accommodation as
required by the Americans with Disabilities Act of
1990, 42 U.S.C. §12112(b)(5)(A). The trial court
granted the employer summary judgment holding
that the employee’s impairment did not qualify as a
“disability under the ADA because it had not ‘sub-
stantially limited’ any major life activity” and that
* While the ADA Amendments Act of 2008 broadened the
analysis of Toyota Mfg., the core holding is still applicable if read
in light of the Amendments.
21
there was no evidence that the employee had a record
of a substantially limiting impairment. While the
Sixth Circuit reversed finding that the employee's
impairment substantially limited her in the major life
activity of performing manual tasks, the Circuit
Court stated that the employee had to show that her
manual disability involved a “class” of manual activi-
ties affecting her ability to perform tasks at work.
This Court disagreed and held that the Circuit Court
did not apply the proper standard in determining
that the employee was disabled under the ADA in
that it failed to analyze her impairment in light of
_ those activities which were of central importance to
most people’s daily lives.
This Court’s consideration of what an individual
must prove to demonstrate a substantial limitation in
the major life activity of performing manual tasks is
guided by the ADA’s disability definition. “Substan-
tially” in the phrase “substantially limits” suggests
“considerable or to a large degree” and thus clearly
precludes impairments that interfere in only a minor
way with performing manual tasks. Moreover, be-
cause “major” means important, “major life activities”
refers to those activities that are of central impor-
tance to people’s daily lives. In order for a person
performing manual tasks to fit into this category, the
tasks in question must be central to daily life. To be
substantially limited in the specific life activity of
performing manual tasks, therefore, an individual
must have an impairment that prevents or severely
restricts the individual from doing activities that are
22
of fundamental or central importance to most people’s
daily lives. The Court stated:
“Major” in the phrase “major life activities”
means important. See Webster’s, supra, at
1363 (defining “major” as “greater in dignity,
rank, importance, or interest”). “Major life
activities” thus refers to those activities that
are of central importance to daily life. In or-
der for performing manual tasks to fit into
this category — a category that includes such
basic abilities as walking, seeing, and hear-
ing — the manual tasks in question must be
central to daily life. If each of the tasks in-
cluded in the major life activity of performing
manual tasks does not independently qualify
as a major life activity, then together they
must do so.
That these terms need to be interpreted
strictly to create a demanding standard for
qualifying as disabled is confirmed by the
first section of the ADA, which lays out the
legislative findings and purposes that moti-
vate the Act. See 42 U.S.C. §12101. When it
enacted the ADA in 1990, Congress found
that “some 43,000,000 Americans have one
or more physical or mental disabilities.” 42
U.S.C. §12101(a)(1). If Congress intended
everyone with a physical impairment that
precluded the performance of some isolated,
unimportant, or particularly difficult manual
task to qualify as disabled, the number of
disabled Americans would surely have been
much higher. Cf. Sutton v. United Air Lines,
Inc., 527 U.S., at 487 (finding that because
23
more than 100 million people need corrective
lenses to see properly, “[hlad Congress in-
tended to include all persons with corrected
physical limitations among those covered by
the Act, it undoubtedly would have cited a
much higher number [than 43 million] dis-
abled persons in the findings”).
We therefore hold that to be substantially
limited in performing manual tasks, an indi-
vidual must have an impairment that pre-
vents or severely restricts the individual
from doing activities that are of central im-
portance to most people’s daily lives. The im-
pairment’s impact must also be permanent
or long-term. See 29 C.F.R. §§1630.2(j)(2)(ii)-
(ii) (2001).
It is insufficient for individuals attempting to
prove disability status under this test to
merely submit evidence of a medical diagno-
sis of an impairment. Instead, the ADA re-
quires those “claiming the Act’s protection
... to prove a disability by offering evidence
that the extent of the limitation [caused by
their impairment] in terms of their own ex-
perience ... is substantial.” Albertson’s, Inc.
v. Kirkingburg, supra, at 567 (holding that
monocular vision is not invariably a disabil-
ity, but must be analyzed on an individual
basis, taking into account the individual’s
ability to compensate for the impairment).
That the Act defines “disability” “with re-
spect to an individual,” 42 U.S.C. §12102(2),
makes clear that Congress intended the exis-
tence of a disability to be determined in such
24
a case-by-case manner. See Sutton v. United
Air Lines, Inc., supra, at 483; Albertson's,
Inc. v. Kirkingburg, supra, at 566; cf. Brag-
don v. Abbott, 524 U.S., at 641-642 (relying
on unchallenged testimony that the respon-
dent’s HIV infection controlled her decision
not to have a child, and declining to consider
whether HIV infection is a per se disability
under the ADA); 29 C.F.R. pt. 1630, App.
§ 1630.2(j) (2001) (“The determination of
whether an individual has a disability is not
necessarily based on the name or diagnosis
of the impairment the person has, but rather
on the effect of that impairment on the life of
the individual”); :bid. (“The determination of
whether an individual is substantially lim-
ited in a major life activity must be made on
a case-by-case basis”).
Toyota Mfg v. Williams, supra, at 189.
Clearly, the decision of the Tenth Circuit Court of
Appeals is contrary to the determination of this Court
in Toyota Mfg. While the Tenth Circuit used a
mechanistic approach, this Court held that “major”
in the phrase “major life activities” means impor-
tant. That is those activities that are of central
importance to daily life. In order for a category to be
of this import such as walking, seeing and hearing,
the tasks must be important to daily life. The Tenth
Circuit failed to make this analysis. Rather than
accomplishing the individualized assessment re-
quired by Toyota Mfg., it simply reviewed the listing
of major life activities in the regulation and as
25
“driving” was not listed, it held that driving was not
a major life activity. This is clearly improper and
contrary to the ruling by this Court. Toyota Mfg.
stands for the rule that a court must do an individu-
alized assessment to determine if an activity in
question is one of central importance to “most people’s
daily lives”. The analysis is not a review of the list
but an analysis of the activity.
In this case, the analysis should not be whether
most people in Chicago, Miami or New York (with
mass transit systems) are able to function without
driving. The question is whether people in Wyoming,
or any rural state, can even exist without the ability
to drive. Obviously, this is the review accomplished by
the District Court. In holding that driving is a major
life activity, the District Court was noting the obvi-
ous, that in a rural state such as Wyoming, it is
impossible to go to work, go to the grocery store, go to
the doctor, go to school, recreate, or do any of the
myriad of activities associated with daily life without
the ability to drive. In a rural state such as Wyoming,
driving is clearly a major life activity in that it is of
central or vital importance to rural residents. As the
Tenth Circuit Court of Appeals failed to properly
analyze the activity in light of Toyota Mfg. and simi-
lar cases, the Circuit Court decision must be reversed
and driving found to be a major life activity in rural
areas.
26
III. The Tenth Circuit Opinion is contrary to
recent legislation which has expanded the
scope of the Americans with Disabilities
Act.
Amendments to the Americans with Disabilities
Act signed into law on September 25, 2008 and effec-
tive January 1, 2009 clarify who is covered by the law
and entitled to civil rights protection. The “ADA
Amendments Act of 2008” revises the definition of
“disability” to more broadly encompass impairments
that substantially limit a major life activity. The
amended language also states that certain mitigating
measures, including certain corrective devices, have
no bearing in determining whether a disability quali-
fies under the law. The changes also clarify the intent
of the legislation to incorporate episodic or remissive
impairments that limit a major life activity when
active such as epilepsy or post-traumatic stress
disorder. Most importantly, while driving qualifies as
a major life activity under the analysis in Toyota Mfg.
uv. Williams, supra, the Amendments specifically
indicate that restrictive elements contained in the
case are to be broadened.
While the ADA has only recently been amended,
courts are implementing the remedial and broad view
of the Act. A Louisiana Court noted:
The Court notes that the ADA Amendments
Act of 2008, Pub.L. No. 110-325, 122 Stat.
3553 (2008), substantially changes how
employers and courts are to evaluate ADA
claims. Congress has expanded the class of
27
major life activities to specifically include,
among others, seeing and working. Id. at
§ 3(2)(A). Congress rejected the reasoning of
the Supreme Court in Sutton v. United Air-
lines, 527 U.S. 472, 489 (1999), so that the
“determination of whether an impairment
substantially limits a major life activity shall
[now] be made without regard to the amelio-
rative effects of mitigating measures such as
... Medication.” Pub.L. No. 110-325, §3(4)(E)G).
Congress also rejected the Supreme Court’s
instruction to interpret the ADA’s terms
strictly, see Toyota, 534 U.S. at 196, stating
that “[t|he definition of disability ... shall be
construed in favor of broad coverage of indi-
viduals under this Act.” Pub.L. No. 110-325,
§ 4(4)(A).
Knox v. City of Monroe, Civil Action No. 07-606, 2008
WL 5157913 (W.D.La. 2008)
In the Findings of the Amendments, Congress
found justification for the legislation as follows:
a. Findings — Congress finds that —
i. In enacting the Americans with Dis-
abilities Act of 1990 (ADA), Congress
intended that the Act “provide a clear
and comprehensive national mandate
for the elimination of discrimination
against individuals with disabilities”
and provide broad coverage;
ii. In enacting the ADA, Congress recog-
nized that physical and mental disabili-
ties in no way diminish a person’s right
lil.
1V.
28
to fully participate in all aspects of so-
ciety, but that people with physical
or mental disabilities are frequently
precluded from doing so because of
prejudice, antiquated attitudes, or the
failure to remove societal and institu-
tional barriers;
While Congress expected that the defi-
nition of disability under the ADA
would be interpreted consistently with
how courts had applied the definition of
a handicapped individual under the
Rehabilitation Act of 1973, that expec-
tation has not been fulfilled;
The holdings of the Supreme Court in
Sutton v. United Air Lines, Inc., 527 U.S.
471 (1999) and its companion cases have
narrowed the broad scope of protection
intended to be afforded by the ADA,
thus eliminating protection for many
individuals whom Congress intended to
protect;
The holding of the Supreme Court in
Toyota Motor Manufacturing, Kentucky,
Inc. v. Williams, 534 U.S. 184 (2002) fur-
ther narrowed the broad scope of pro-
tection intended to be afforded by the
ADA;
As a result of these Supreme Court
cases, lower courts have incorrectly
found in individual cases that people
with a range of substantially limiting
29
impairments are not people with dis-
abilities;
vii. In particular, the Supreme Court, in
the case of Toyota Motor Manufactur-
ing, Kentucky, Inc. v. Williams, 534 U.S.
184 (2002), interpreted the term “sub-
stantially limits” to require a greater
degree of limitation than was intended
by Congress; and
viii. Congress finds that the current Equal
Employment Opportunity Commission
ADA regulations defining the term
“substantially limits” as “significantly
restricted” are inconsistent with con-
gressional intent, by expressing too
high a standard.
ADA Amendments Act of 2008, P.L. 110-325, Sep. 25,
2008.
Congress in finding that the Court’s holding in
Toyota Mfg. unduly restricted the ADA’s congressional
purpose, went on to enact the Amendments which
broadened the terms “substantially” and “major” in
describing a disability under the ADA. Nevertheless,
the Court’s holding in Toyota Mfg. survives to the
extent that it provides that to be substantially limited
in performing a major life activity under the ADA, an
individual must have an impairment that prevents or
severely restricts the individual from doing activities
that are of central importance to most people’s daily
lives. Importantly, the definition must be read
broadly.
30
Consistent with the definition, Congress defined
“major life activities” under its definition of disability
to include:
(2) Major Life Activities.
(A) In general, for purposes of paragraph
(1), major life activities include, but
are not limited to, caring for oneself,
performing manual tasks, seeing,
hearing, eating, sleeping, walking,
standing, lifting, bending, speaking,
breathing, learning, reading, con-
centrating, thinking, ccmmunicat-
ing, and working.
42 U.S.C. 12102 (2009).
While the expanded list of major life activities
did not include “driving”, the statute did expand
major life activities to include certain bodily func-
tions. The Amendments are specific in noting that
major life activities include not only the enumerated
functions but that they go far beyond such functions.
The expanded list of major life activities must be
interpreted in light of the purpose of the Amendments
and that is to expand the Court’s interpretation in
Toyota Mfg. to facilitate the purpose of the ADA.
While Toyota Mfg. strictly interpreted the provisions
of the ADA, the Amendments allow that an individual
has an impairment if it restricts the individual from
doing activities that are of central importance to most
people’s daily lives. In this case, the standard has to
incorporate driving as it substantially limits activities
in rural Wyoming and is of central importance to
31
most people’s lives in rural settings. Given the
Amendments, a more liberal interpretation must
incorporate such actions.
A long standing Wyoming jurist noted this in
advance of the Amendments to the ADA when he
wrote to Wyoming’s senators that driving is a major
life activity in Wyoming, “where public transportation
is non-existent and distances between towns are
measured in hours.” App. 34. As the Circuit Court
refused to take an appropriate view of the ADA, its
opinion is inconsistent with the intent of Congress.
.
CONCLUSION
In conclusion, the Petitioner established that she
was terminated by her employer for her disability.
She established that without the ability to drive she
and all others in rural areas would not be able to
work, shop, seek medical attention and so forth. The
Court must be mindful of this rural reality and honor
the Congressional intent to allow for a broad inter-
pretation of the phraseology, major life activity, and
find in particularly in rural areas, that driving is a
major life activity within the meaning of the ADA.
Respectfully submitted,
BRUCE S. ASAY
MEREDITH F. ASAY
ASSOCIATED LEGAL GROUP, LLC
1807 Capitol Avenue, Ste. 203
Cheyenne, Wyoming 82001
Telephone: (307) 632-2888
App. 1
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
IREANE KELLOGG,
Plaintiff-Appellee,
v.
ENERGY SAFETY SER- No. 07-8072
VICES INC., an Arizona
corporation, doing business
as, Oilind Safety LLC,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF WYOMING
(D.C. NO. 06-CV-110-CAB)
(Filed Oct. 15, 2008)
Catherine MacPherson, Of Counsel, (Thomas A.
Thompson, with her on the brief), of MacPherson,
Kelly & Thompson, LLC, Rawlins, Wyoming, for
Defendant-Appellant.
Bruce S. Asay (Meredith F. Asay with him on the
brief), of Associated Legal Group, LLC, Cheyenne,
Wyoming, for Plaintiff-Appellee.
App. 2
Before HARTZ, HOLLOWAY, and O’BRIEN,
Circuit Judges.
HARTZ, Circuit Judge.
Ireane Kellogg sued her former employer, Oilind
Safety, under the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12112 et. seq., and the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201 et seq. She
claimed that Oilind (1) discriminated against her in
violation of the ADA by firing her after she was
diagnosed with epilepsy, and (2) denied her overtime
payments to which she was entitled under the FLSA.
The jury found for her on both claims and awarded
her damages. In addition, the district court awarded
Ms. Kellogg prejudgment interest, front pay under
the ADA, liquidated damages under the FLSA, and
attorney fees. Oilind appeals. With respect to the
ADA claim, it argues that the jury improperly found
that Ms. Kellogg was a qualified individual who was
substantially limited in a major life activity because
(1) the court erred in instructing the jury that driving
is a major life activity, (2) Ms. Kellogg failed to prove
that she was disabled within the meaning of the ADA,
and (3) Ms. Kellogg failed to prove that she was a
qualified individual who could perform the essential
functions of her job, with or without reasonable
accommodation. It also argues (4) that the court
abused its discretion in awarding front pay under the
ADA. As for the FLSA claim, Oilind argues (5) that
App. 3
the evidence was insufficient to support the jury’s
verdict and (6) that the court erred in granting Ms.
Kellogg liquidated damages. Although we reject
Oilind’s other contentions regarding the ADA claim,
we agree that the jury was erroneously instructed
that driving is a major life activity under the ADA.
We therefore remand for a new trial on the ADA
claim. We affirm the jury’s verdict on the FLSA claim
and hold that there was no abuse of discretion in the
award of liquidated damages.
I. BACKGROUND
Oilind hired Ms. Kellogg as a safety technician in
Worland, Wyoming, in June 2004. Oilind is an indus-
trial safety company that provides safety-related
services, such as training and environmental moni-
toring, to industrial customers. It also rents, sells,
and services safety equipment, such as gas monitors
and air packs. Oilind operates 16 offices in 10 states
and during 2004-2005 employed approximately 150
people. The Worland office is one of Oilind’s four
oilfield offices. At the time of trial, nine employees
worked in the Worland office.
As part of Ms. Kellogg’s job as a safety technician
— and as a safety supervisor, to which she was later
promoted — she traveled to oilfields to provide ser-
vices to clients. Ms. Kellogg also occasionally worked
“in the shop” in Worland, where she maintained and
repaired breathing equipment and cylinders of com-
pressed air. When Ms. Kellogg worked in the field,
App. 4
she would pick up a company vehicle from the shop in
Worland and drive as much as two hours to the work
site, where she would typically work a 12-hour shift
before leaving to drive back to Worland. Ms. Kellogg
was paid as a salaried employee at the rate of $1700 a
month, until she received a raise to $1825 per month
in December 2004. In addition, she received “field
bonuses” based on Oilind’s billings to customers.
Although the job posting described the job as 40
hours per week, it is undisputed that Ms. Kellogg
sometimes worked more than 40 hours a week. She
testified that in her busiest month she worked 180
hours above a 40-hour-per-week pace.
On January 20, 2005, Ms. Kellogg missed a day
of work. The next day, when her coworkers asked
where she had been, she had no recollection of the
day before and had not realized that she had missed a
day. She was seen that day by a doctor, who told her
that she could not return to work until cleared by
him. Two days later, after losing consciousness at
home, Ms. Kellogg was hospitalized and diagnosed
with complex partial seizures, a form of epilepsy. On
January 31 her doctor issued her a note allowing her
to return to work, but not to drive until he saw her
again.
Some time in early February, Ms. Kellogg took
her doctor’s note to the Worland office and asked to
work in the shop. The Wyoming district manager for
Oilind, Aaron Chamberlain, wanted to put her to
work in the shop because they were shorthanded and
could not handle the workload, but he first had to
App. 5
check with corporate headquarters. Ms. Kellogg
returned to the shop every week to check on her job;
on one visit to the shop, Chamberlain told her that
the corporate office considered her a “liability.” Aplt.
App., Vol. III at 463. In a letter dated May 5, 2005,
Oilind informed Ms. Kellogg that it was “not able to
employ [her] in a safety-sensitive position,” which it
declared hers to be, without a “full release” from her
doctor. Jd. Vol. VII at 1213. Without such a release, it
would remove her from the payroll. Ms. Kellogg never
provided Oilind with a release allowing her to drive.
Ms. Kellogg brought suit against Oilind under
the ADA, alleging disability discrimination, and
under the FLSA, alleging that she was entitled to
overtime compensation. After an eight-day trial, the
jury found for Ms. Kellogg on both claims. On her
ADA claim it awarded her $125,000 in compensatory
damages (reduced by the district court to the statu-
tory naximum of $100,000), and $46,935 in past
wages; and it awarded $12,500 in overtime wages
under the FLSA. The district court additionally
awarded Ms. Kellogg $18,087 in front pay under the
ADA, $12,500 in liquidated damages under the FLSA,
$2,347 in prejudgment interest, and $147,888 in
attorney fees under both the ADA and FLSA.
App. 6
Il. DISCUSSION
A. ADA Claim
The ADA prohibits employment discrimination
against any “qualified individual with a disability
because of the disability.” 42 U.S.C. § 12112(a).
A prima facie case of ADA discrimination
consists of three elements: the plaintiff (1) is
a disabled person as defined by the ADA; (2)
is qualified, with or without reasonable ac-
commodation, to perform the essential func-
tions of the job held or desired; and (3)
suffered discrimination by an employer or
prospective employer because of that disabil-
ity.
Zwygart v. Bd. of County Comm’rs, 483 F.3d 1086,
1090 (10th Cir. 2007). Only the first and second
elements are at issue on appeal.
1. Disability: Driving as a Major Life
Activity
The first element of a discrimination claim under
the ADA is proof that the plaintiff has a qualifying
“disability” under the statute. The ADA defines
“disability” as “(A) a physical or mental impairment
that substantially limits one or more of the major life
activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C.A. § 12102(2). The term “ma-
jor life activities” is not defined in the statute, but a
regulation promulgated by the Equal Employment
App. 7
Opportunity Commission’ defines it as “functions
such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learn-
ing, and working.” 29 C.F.R. § 1630.2(i).
The categorization of an activity as a “major life
activity” is crucial to the determination of disability.
Oilind argues that the jury’s verdict must be vacated
because the jury was erroneously instructed that
driving constitutes a major life activity under the
ADA. The district court first expressed its view in an
order partially granting and partially denying a
motion for summary judgment by Oilind:
This Court believes that there is no question
that in Wyoming, where public transporta-
tion is virtually non-existent, distances be-
tween towns is measured by hours of driving,
economic conditions often require residents
to seek employment outside of their local
community, and long winter conditions sig-
nificantly limit foot or bicycle travel, driving
is clearly a major life activity. See Toyota Mo-
tor Mfg., Kentucky, Inc. v. Williams, 534 U.S.
184, 19[7], [(2002) (finding that “major life
’ The Supreme Court has not determined what level of
deference should be given to the EEOC regulation, because no
agency has been granted authority to issue regulations imple-
menting the generally applicable provisions of the ADA, which
include the def*nition of disability. See Sutton v. United Air
Lines, Inc., 527 — 5. 471, 479 (1999). Neither party in this case
has questioned the validity of the regulation.
App. 8
activities” refers to those activities that are
of central importance to daily life).
Aplt. App., Vol. I at 33. Oilind objected at trial to the
instructions that included driving as a major life
activity, but the objection was overruled.
“The interpretation of a federal statute is a
question of law which this court reviews de novo.”
Scanlon White, Inc. v. Comm’r, 472 F.3d 1173, 1175
(10th Cir. 2006). Whether driving constitutes a “major
life activity” under the ADA is a question of first
impression in this circuit. The two courts of appeals
that have published opinions on the question have
concluded that it is not. See Colwell v. Suffolk County
Police Dept., 158 F.3d 635, 643 (2nd Cir. 1998);
Chenoweth v. Hillsborough County, 250 F.3d 13828,
1329-30 (11th Cir. 2001). Although driving is not one
of the listed activities in the EEOC regulation, that
does not end the inquiry because the regulation does
not purport to give an exhaustive list.
It cannot be disputed that driving is an ex-
tremely important daily activity to many, even most,
adults. Without the ability to drive, it may be very
difficult to care for oneself or to work. Indeed, we
have recognized that the activity of “[claring for one’s
self encompasses normal activities of daily living;
including ... driving... .” Holt v. Grand Lake Mental
Health Ctr. Inc., 448 F.3d 762, 767 (10th Cir. 2006)
(internal quotation marks omitted). But driving is,
literally, a means to an end. The activities enumer-
ated by the EEOC — “caring for oneself, performing
App. 9
manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working” —- are all pro-
foundly more important in and of themselves than is
driving. There are those who drive just for the pleas-
ure of it (“Hey, let’s go for a ride”), but that practice is
declining and some would now consider it unpatriotic.
Moreover, the importance of the enumerated activi-
ties is not dependent on where one lives; they are
valued as much by the resident of a major metropoli-
tan area as by an isolated rural resident. Driving, in
contrast, may be a minor concern for one who is near
convenient mass transit and can walk to work.
To conclude, as did the district court, that driving
is a major life activity because of its importance to the
performance of other major life activities, such as
caring for oneself or working, would shortcircuit the
analysis in determining whether one of those major
life activities has been substantially limited. For
instance, to show a substantial limitation in the
major life activity of working, the plaintiff must,
under the EEOC regulations, establish a “signifi-
cant[ ] restrictl[ion] in the ability to perform either a
class of jobs or a broad range of jobs in various classes
as compared to the avers ge person having compara-
ble training, skills and abilities.” 29 C.FR.
§ 1630.2(j)(3)4). Undoubtedly, an inability to drive
will sometimes enable the plaintiff to meet this
standard. See Best v. Shell Oul Co., 107 F.3d 544, 548
(7th Cir. 1997). Likewise, a ‘estriction on driving
could cause one to be substantially limited in the
activity of caring for oneself. But a plaintiff should
App. 10
not be permitted to bypass having to prove substan-
tial limitations in these major life activities by provid-
ing only eviderce that she cannot drive.
We hold that driving is not itself a major life
activity. Because the jury was not required to indicate
on the verdict form which major life activity or activi-
ties it found to be substantially limited, it is impossi-
ble to know whether the jury based its verdict on just
the legally incorrect ground that Ms. Kellogg was
unable to drive. When an appellate court cannot
determine whether a jury reached its verdict on an
incorrect legal theory presented in the instructions, it
must set aside the verdict. See Farrell v. Klein Tools,
Inc., 866 F.2d 1294, 1298-1301 (10th Cir. 1989). We
therefore vacate the verdict on Ms. Kellogg’s ADA
claim.
2. Sufficiency »f the Evidence
Oilind urges us to go further than merely setting
aside the verdict. It argues that it is entitled to entry
of judgment in its favor on the ADA claim because
there was insufficient evidence to support the jury’s
verdict even on the theories of relief for which the
instructions were correct. It contends that the evi-
dence was insufficient to support two propositions
necessary for the verdict: (1) that Ms. Kellogg was a
person with a “disability” and (2) that she was a
“qualified individual.” Oilind moved on these grounds
for judgment as a matter of law (JMOL) under Fed-
eral Rule of Civil Procedure 50(a) and (b); and the
App. 11
district court denied the motions. We review this
denial de novo. Kelly v. Metallics West, Inc., 410 F.3d
670, 674 (10th Cir. 2005).
[A JMOL] is warranted only if the evidence
points but one way and is susceptible to no
reasonable inferences supporting the party
opposing the motion. We do not weigh the
evidence, pass on the credibility of the wit-
nesses, or substitute our conclusions for
those of the jury. However, we must enter
judgment as a matter of law in favor of the
moving party if there is no legally sufficient
evidentiary basis with respect to a claim or
defense under the controlling law. We must
view the evidence and any inferences to be
drawn therefrom most favorably to the non-
moving party.
McInnis v. Fairfield Communities, Inc., 458 F.3d
1129, 1136 (10th Cir. 2006) (internal quotation marks
omitted). For the reasons that follow, we agree with
the district court on these issues.
a. Disability
Oilind argues that Ms. Kellogg did not establish
that she is a person with a disability as defined by
the ADA because she did not show that she had an
impairment that substantially limited her in the
major life activities of working or caring for herself.
Establishing the existence of such an impairment,
however, is only one of three ways to prove a “disabil-
ity” under the ADA. A plaintiff may also show that
App. 12
she had “a record of such an impairment,” 42 U.S.C.
§ 12102(2)(B), or that she was “regarded as having
such an impairment,” id. § 12102(2)(C). Ms. Kellogg
pursued at trial the theory that Oilind “regarded” her
as having an impairment that substantially limited
at least one of her major life activities. Yet Oilind has
not addressed on appeal that potential ground for
finding Ms. Kellogg disabled. Because Oilind has not
argued, much less demonstrated, that the evidence at
trial would not support a jury finding that Oilind
regarded Ms. Kellogg as having an impairment that
substantially limited one of her major life activities,
we may assume that the evidence did support such a
finding, so denial of JMOL was correct. See Lind-
strom v. United States, 510 F.3d 1191, 1196 (10th Cir.
2007) (arguments not raised in appellant’s brief are
waived).
b. Qualification
The second element of an ADA discrimination
claim is proving that the plaintiff is a “qualified
individual with a disability.” See Zwygart, 483 F.3d at
1090. As we explained in Tate v. Farmland Industries,
Inc., 268 F.3d 989 (10th Cir. 2001):
The ADA defines a “qualified individual with
a disability” as “an individual with a disabil-
ity who, with or without reasonable accommo-
dation, can perform the essential functions of
the employment position that such individual
holds or desires.” 42 U.S.C. § 12111(8). As a
App. 13
condition to performing the essential func-
tions of an employment position, however, an
individual must first satisfy “the requisite
skill, experience, education and other job-
related requirements of the employment po-
sition.” 29 C.F.R. § 1630.2(m). If a plaintiff
fails to establish that he has met either step
of this analysis, he is not a “qualified indi-
vidual” within the meaning of § 12111(8).
Id. at 992-93 (footnote omitted).
There is no dispute that Ms. Kellogg was quali-
fied to do her job before she was diagnosed with
epilepsy. At trial Oilind claimed that there were two
job requirements that Ms. Kellogg could no longer
meet after her diagnosis: (1) she could not drive, and
(2) she could not meet the standards in DOT “pipeline
regulations” to perform “safety-sensitive” work in the
shop. Aplt. App., Vol. [TV at 709. In Tate we discussed
when an employer’s stated requirement for a job
should be considered an essential function of the job:
The question of whether a job requirement is
a necessary requisite to employment initially
focuses on whether an employer actually re-
quires all employees in the particular position
to satisfy the alleged job-related requirement.
Cf. Milton v. Scrivner, Inc., 53 F.3d 1118, 1124
(10th Cir. 1995) (holding under the ADA that
an essential function of a job must be actu-
ally required of all employees in the particu-
lar position). This inquiry is not intended to
second guess the employer or to require the
employe. to lower company standards. /d.;
App. 14
see also H. Rep. No. 101-485 ID), at 55 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 337 (The
ADA “does not undermine an employer’s abil-
ity to choose and maintain qualified work-
ers.”). Provided that any necessary job
specification is job-related, uniformly-enforced,
and consistent with business necessity, the
employer has the right to establish what a
job is and what is required to perform it.
268 F.3d at 993.
Applying these tests, we conclude that the jury
could properly have found that neither of Ojilind’s
claimed job requirements was an essential function of
Ms. Kellogg’s job. As to the first, the jury could find
that driving was not an essential function of the job,
because there was testimony that at least twice in the
past, the Worland office had allowed safety supervisors
who had lost their driving privileges after driving-
under-the-influence infractions to work in the shop
until their licenses were restored. As to the second,
the jury could find that the ability to meet DOT
“pipeline regulations” — which allegedly prohibited
anyone on a medication from working in a “safety-
sensitive” position — was not a requirement of the job,
given that these regulations were never produced for
the jury and no witness from the company was able to
give more than a vague description of them. Cham-
berlain, the district manager, said that he had been
unaware of any regulations prohibiting Ms. Kellogg
from working in the shop until the corporate office
told him so. When the company’s president was asked
App. 15
about the pipeline regulations, he testified that he
was familiar with the ones applicable to Oilind, but
he did not identify any of them. He claimed that the
medical restrictions for safety-sensitive positions
were also contained in the company’s policies-and-
procedures manual, but he likewise could not identify
where in the manual such restrictions appeared.
Oilind cites some pipeline regulations in its reply
brief to this court; we do not consider them, however,
because they were never presented at trial. See Boone
vu. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1549
n.1 (10th Cir. 1992).
3. Award of Front Pay
Because we remand for a new trial on the ADA
claim, we need not address the issue of front pay
awarded under the ADA.
B. FLSA Claim
1. Sufficiency of the Evidence
Oilind challenges on appeal the sufficiency of the
evidence to support the jury’s verdict that Oilind had
violated the FLSA and owed Ms. Kellogg overtime
wages. It claims that she was not covered by the
FLSA because she fell under the Motor Carrier Act
exemption (which we discuss in the next section of
this opinion). But Oilind did not specifically refer to
the FLSA claim in its motions under Federal Rule of
Civil Procedure 50(a) for JMOL after the close of Ms.
Kellogg’s evidence and after the close of all evidence.
App. 16
Nor did Ojilind raise the issue in its Rule 50(b) motion
after the verdict. This failure precludes our review. As
the Supreme Court has recently reiterated: “A post-
verdict motion is necessary because determination of
whether a new trial should be granted or a judgment
entered under Rule 50(b) calls for the judgment in the
first instance of the judge who saw and heard the
witnesses and has the feel of the case which no appel-
late printed transcript can impart.” Unitherm Food
Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 401
(2006) (brackets and internal quotation marks omit-
ted), overruling Cummings v. General Motors Corp.,
365 F.3d 944 (10th Cir. 2004).’
2. Award of Liquidated Damages
Oilind argues that the district court erred in
awarding Ms. Kellogg liquidated damages after the
jury found in her favor on the FLSA claim. Under 29
U.S.C. § 216(b) an employer who violates the over-
time provisions of the FLSA is liable for the unpaid
wages and an equal amount in liquidated damages.
But there is a good-faith exception to liability for
liquidated damages:
* Rule 50(b) was amended in 2006 to “permit renewal of any
Rule 50(a) motion for judgment as a matter of law, deleting
the requirement that a motion be made at the close of all
the evidence.” Fed. R. Civ. P. 50 advisory committee’s note. The
amendment does not affect the requirement of a postverdict
motion.
App. 17
[Ilf the employer shows to the satisfaction of
the court that the act or omission giving rise
to such action was in good faith and that he
had reasonable grounds for believing that his
act or omission was not a violation of the
[FLSA], ... the court may, in its sound dis-
cretion, award no liquidated damages or
award any amount thereof... .
29 U.S.C. § 260. We review for abuse of discretion the
district court’s ruling on liquidated damages under
the FLSA. See Pabst v. Okla. Gas & Elec. Co., 228
F.3d 1128, 1136 (10th Cir. 2000).
Oilind’s theory at trial was that Ms. Kellogg was
not covered by the FLSA because she fell within what
is known as the Motor Carrier Act (MCA) exemption.
This exemption applies to employees “with respect to
whom the Secretary of Transportation has power to
establish qualifications and maximum hours of
service pursuant to the provisions of section 31502 of
Title 49.” 29 U.S.C. § 213(b)(1). The referenced stat-
ute permits the Secretary to “prescribe requirements
for ... maximum hours of service of employees of...
a motor. private carrier, when needed to promote
safety of operation.” 49 U.S.C. § 31502(b)(2); see 49
U.S.C. § 13102(15) (defining motor private carrier).
Because we have rejected Oilind’s sole challenge to
the jury’s verdict that Ms. Kellogg was not an em-
ployee subject to the exemption, the remaining ques-
tion is whether the district court abused its discretion
in ruling that Oilind had not shown that it had acted
in good faith with reasonable grounds for believing
App. 18
that Ms. Kellogg was not entitled to overtime wages
under the FLSA.
Oilind’s claim of good faith and reasonable
grounds rests on a 1995 decision from a compliance
officer with the Wyoming Department of Employment
and a 1999 letter from an investigator with the U.S.
Department of Labor, both of which Oilind claims
took the position that its safety supervisors were
covered by the MCA exemption. We hold that the
district court could properly be unpersuaded that
Oilind reasonably relied upon these sources to deny
Ms. Kellogg overtime wages.
The Wyoming decision concerned a claim by a
former employee of Oilind before the Wyoming De-
partment of Employment for overtime wages under
the FLSA. The claimant’s position with Oilind was
not described in the decision; it is apparent only that
the claimant’s job involved driving a truck and trans-
porting canisters of gas. The compliance officer found
that the claimant fell within the MCA exemption and
that he was therefore not entitled to overtime wages.
Integral to the officer’s decision was a finding that
the claimant had driven a truck on interstate trips in
his former job, as the officer had interpreted the MCA
to apply only to employees who traveled interstate or
who could reasonably be expected to travel interstate.
In contrast, the district court here found that “|Ms.
Kellogg’s] job involved almost entirely intrastate
travel,” Aplt. App., Vol. I at 179. Ms. Kellogg testified
(and there was no contrary evidence) that her only
interstate travel was a single occasion on which she
App. 19
combined an automobile trip to pick up her children
in Colorado with an exchange of equipment in Ne-
braska. The facts upon wh:ch the Wyoming decision
rested being distinguishable from those in this case,
the district court did not abuse its discretion by being
unpersuaded that Oilind’s asserted reliance on that
decision was reasonable.
In the three-page letter from the U.S. Depart-
ment of Labor, an investigator discussed the FLSA
status of various employees at the Worland office.
Regarding the safety-supervisor position, the investi-
gator said only that “the safety supervisors are ex-
empt from overtime as long as the U.S. Department
of Transportation has the power to establish their
qualifications and maximum hours of service under
the Motor Carrier Act.” Aplt. App., Vol. VII at 1239.
This is not a definitive answer, reached after an
application of the law to the facts. It is no more than
a statement that the safety supervisors are exempt
from the FLSA’s overtime requirements if the re-
quirements for exemption are satisfied. It was not an
abuse of discretion for the district court to conclude
that this letter provided no reasonable ground for
reliance by Oilind.
In addition, the district court appeared to disbe-
lieve that Oilind actually relied on the decision and
letter, noting that “[Oilind] paid overtime wages to
safety supervisors in other states with essentially the
same job duties.” /d., Vol. I at 179. Although Oilind
attempted to distinguish the job of safety supervisor
in an oilfield office from the job of safety supervisor in
App. 20
other offices, the court “found such distinction artifi-
cial and without merit” and a further reflection of
Oilind’s lack of good faith. Jd. at 179-80.
In conclusion, there are sound reasons for doubt-
ing both Oilind’s actual reliance on the Wyoming
decision or the Department of Labor letter and the
reasonableness of any such reliance. The district
court did not abuse its discretion in rejecting Oilind’s
justifications and awarding liquidated damages.
Ill, CONCLUSION
We VACATE the jurys verdict on the ADA claim
and REMAND for a new trial on this claim. We
AFFIRM the jury’s verdict on the FLSA claim and the
district court’s award of liquidated damages. We
REMAND for further proceedings on the award of
attorney fees because th 7 were based in part on the
ADA judgment.
HOLLOWAY, Circuit Judge, concurring and
dissenting:
I join Part II-B of the majority opinion affirraing
the verdict in favor of Appellee Kellogg on her FLSA
claim. As to her ADA claim, I must respectfully dis-
sent because I conclude that the district judge cor-
rectly held that driving is a “major life activity” under
the ADA. Accordingly, I would also affirm the verdict
on the ADA claim.
App. 21
This is an issue of statutory interpretation, and
so we begin with the statutory language: “major life
activity.” Congress chose to use broad language,
employing only everyday terms, to express its intent
regarding the scope of coverage of the Act. As the
Supreme Court noted in Bragdon v. Abbott, 524 U.S.
624, 631 (1998), Congress had used almost identical
language in the Rehabilitation Act of 1973. Congress
was undoubtedly aware that the courts would imply
from the use of an established term that Congress
intended the terms to be construed similarly in the
ADA, but Congress did not rely solely on that estab-
lished practice. Instead, Congress specifically pro-
vided:
Except as otherwise provided in this chapter,
nothing in this chapter shall be construed to
apply a lesser standard than the standards
applied under title V of the Rehabilitation
Act of 1973 or the regulations issued by Fed-
eral agencies pursuant to such title.
42 U.S.C. § 12201(a).
Thas it is clear that Congress meant the term
“major life activity” to have a wide reach and that we
should construe it accordingly. Giving the words their
understceod and accepted meaning, keeping in mind
that the use of this broad language is indicative of
Congressional intent, and applying these principles
in the context of modern life in our nation, I conclude
that driving is clearly a major life activity, as the
district judge held here.
App. 22
The majority’s analysis seems to me to rest
almost entirely on comparison of the importance of
the activity of driving with the fundamental impor-
tance of activities listed in the EEOC regulation as
examples of major life activities. But as the majority
notes, the EEOC regulations do not command judicial
deference.’ Moreover, it is undisputed that the exam-
ples in the regulation are not exclusive. See Bragdon,
524 U.S. at 638-39. It seems to me that the majority
has displaced the conventional judicial task of giving
ordinary terms their ordinary meaning and has
implemented instead an approach that takes a list of
examples from a regulation of undetermined author-
ity as having set a floor for the meaning of the term
“major,” without stopping to ask whether the result is
consistent with the words Congress chose to express
its intent.
The majority notes that the only two circuits that
seem to have addressed this question directly have
held that driving is not in itself a major life activity. I
am not convinced that these holdings are correct. In
Chenoweth v. Hillsborough County, 250 F.3d 1328
(11th Cir. 2001), the entire analysis consists of little
more than three sentences. Like the panel majority in
the present case, the Chenoweth court seems to give
controlling weight to the EEOC regulations. Aside
from the observation that driving is “conspicuously
different in character from the activities that are
* Maj. op. at 6 n.1.
App. 23
listed,” the Chenoweth court also declares that it
“would at the least be an oddity that a major life
activity should require a license from the state... .”
250 F.3d at 1329. This analysis is disconnected from
the focus that should be maintained on the actual
words Congress used.
The majority also relies on Colwell v. Suffolk
County Police Dept., 158 F.3d 635 (2nd Cir. 1998).
However, as Ms. Kellogg points out, Brief of Appellee
at 10, the Second Circuit has more recently stated a
different view. In Regional Economic Community v.
City of Middletown, 294 F.3d 35 (2nd Cir. 2002), the
Second Circuit dealt with the issue whether an
alcoholic or drug abuser was impaired under defini-
tions set forth in the ADA and the Rehabilitation Act,
inter alia. The Second Circuit noted that to be sub-
stantially limited under analysis of the Supreme
Court in Toyota Motor Mfg., Ky. v. Williams, 234 U.S.
184 (2002), required restriction from activities of
central importance to most people’s daily lives. In
that context the Second Circuit stated:
The function of “caring for one’s self,” we
have held, “encompasses normal activities of
daily living; including feeding oneself, driv-
ing, grooming, and cleaning home.” Ryan uv.
Grae & Rybicki, P-C., 1385 F.3d 867, 871 (2d Cir.
1998) (citing Dutcher v. Ingalls Shipbuilding,
53 F.3d 723, 726 (5th Cir. 1995)). Williams con-
firms that such “tasks central to most people’s
daily lives” constitute major life activities. 534
U.S. at___, 122 S. Ct. at 693.
294 F.3d at 47 (emphasis added).
App. 24
It has been cogently observed that “there are
compelling reasons to think that driving should
qualify as a major life activity. Driving appears to be
‘of central importance to most people’s daily lives.’”
Arnold v. County of Cook, 220 F.Supp.2d 893, 895 n.3
(N.D. Dl. 2002) (quoting Toyota Motor Mfg. Ky., Inc. v.
Williams, 534 U.S. 184, 197 (2002)). Unlike most of
the cases dealing with this issue, Arnold gave some
support for its conclusion, noting that Census Bureau
figures for 1995 showed that 91% of workers used an
automobile to get to work,’ while figures for 2000
showed that approximately 85% of Americans aged
fifteen and older were licensed drivers. Id.”
This analysis, I submit, is more detailed and
cogent than that exhibited in the appellate cases cited
* U.S. Census Bureau, Statistical Abstract of the United
States: 2001, Tbl. 1091 at 693.
° Driving certainly was an activity of central importance to
Ms. Kellogg’s daily life. As the district judge found, she was
required to travel to well sites that were a two-hour drive from
the company’s offices. Nor was Ms. Kellogg’s dependence on
driving particularly unusual for a Wyoming resident. The judge
said he believes:
... there is no question that in Wyeming, where pub-
lic transportation is virtually non-existent, distances
between towns is [sic] measured by hours of driving,
economic conditions often require residents to seek
employment outside of their local community, and
long winter conditions significantly limit foot or bicy-
cle travel, driving is clearly a major life activity.
Order Granting in Part, and Denying in Part, Defendant’s
Motion for Summary Judgment at 7, I Aplt. App. at 33.
App. 25
by the majority. It is also more directed to implement-
ing the legislative intent. Driving is of central impor-
tance to the daily lives of a great majority of
Americans, as both common experience and Census
Bureau statistics tell us. Accordingly, it is a major life
activity and no convincing contrary evidence or
analysis is offered. Therefore, I must dissent from the
ruling vacating the verdict for Ms. Kellogg on her
ADA claim.
App. 26
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
IREANE KELLOGG,
Plaintiff,
Vs.
)
)
)
)
ENERGY SAFETY ) Case No. 06-CV-110-B
SERVICES, INC. d/b/a )
OILIND SAFETY, )
an Arizona Corporation, )
)
Defendant.
Amended Judgment
(Filed Sep. 27, 2007)
This matter came before the Court at a hearing
on September 19, 2007, to consider the appropriate-
ness of front pay, liquidated damages, and prejudg-
ment interest and to consider the Defendant’s Motion
to Alter or Amend Judgment.
In accordance with the Court’s crder awarding
additional damages and granting Defendant’s Mo-
tion to Alter or Amend Judgment IT IS HEREBY
ADJUDGED AND DECREED that the Judgment
entered August 18, 2007 is VACATED AND
PLAINTIFF IS AWARDED:
App. 27
$ 100,000.00 in compensatory damages,
$ 46,935.00 in past wages,
$ 12,500.00 in overtime wages,
$ 18,087 in front pay.
$ 12,50C in liquidated damages, and
$ 2,347 in prejudgment interest.
Plaintiff is also awarded post-judgment interest
on the above amounts at the statutory rate specified
in 28 U.S.C. § 1961.
Dated this 27th day of September, 2007.
/s/ Clarence A. Brimmer
UNITED STATES
DISTRICT JUDGE
App. 28
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
IREANE KELLOGG,
Plaintiff,
vs.
ENERGY SAFETY
SERVICES, INC. d/b/a
OILIND SAFETY,
an Arizona Corporation,
Defendant.
Case No. 06-CV-110-B
ee ee —_ ~ P P
JUDGMENT
(Filed Aug. 17, 2007)
After the jury trial in this matter and upon the
special verdict of the jury, which is incorporated into
this judgment, the Court finds that the Plaintiff is the
prevailing party and is entitled to judgment in her
favor.
Therefore, it is hereby ADJUDGED and DE-
CREED that Plaintiff lreane Kellogg is awarded
$184,435.00 plus post-judgment interest at the statu-
tory rate specified in 28 U.S.C. § 1961, together with
such other damages as the Court may or may not
award for front pay, liquidated damages and pre-
judgment interest after a hearing to be set by sepa-
rate order.
App. 29
It is further ORDERED that the Plaintiff shall
recover costs as provided in Fed. R. Civ. P. 54(d)(1).
Dated this 16th day of August, 2007.
/s/ Clarence A. Brimmer
UNITED STATES
DISTRICT JUDGE
App. 30
United States District Court
For The District of Wyoming
IREANE KELLOGG,
Plaintiff(s),
ENERGY SAFETY
SERVICES, INC.,
)
)
)
ea ) Case No. 06-CV-110B
)
)
Defendant(s). )
ORDER ON MANDATE
(Filed Dec. 1, 2008)
The above entitled matter having been appealed
to the United States Court of Appeals for the Tenth
Circuit and the appellate court having vacated the
jury’s verdict on the ADA claim and remand for a
new trial on this claim and remanded the case on
10/15/08, it is
ORDERED that this matter be restored to the
civil docket. for further action as is consistent with the
mandate.
Dated this 24th day of November, 2008.
/s/ Clarence A. Brimmer
Clarence A. Brimmer
United States District Judge
App. 31
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
IREANE KELLOGG,
Plaintiff-Appellee,
v.
ENERGY SAFETY
SERVICES INC., an
Arizona corporation,
doing business as,
Oilind Safety LLC,
Defendant-Appellant.
No. 07-8072
ORDER
(Filed Nov. 10, 2008)
Before HARTZ, HOLLOWAY, and O’BRIEN, Cir-
cuit Judges
Appellee’s petition for rehearing is denied. Judge
Holloway voted to grant panel rehearing.
The petition for rehearing en banc was transmit-
ted to all of the judges of the court who are in regular
active service. As no member of the panel and no
App. 32
judge in regular active service on the court requested
that the court be polled, that petition is also denied.
Entered for the Court,
/s/ Elisabeth A. Shumaker
ELISABETH A. SHUMAKER,
Clerk
App. 33
UNITED STATES DISTRICT COURT
DISTRICT OF WYOMING
2120 Capitol Avenue - Room 2603
CHEYENNE, WYOMING 82001
CLARENCE A. BRIMMER (307) 433-2160
U.S. DISTRICT JUDGE (307) 634-6072
December 1, 2008
The Honorable Michael B. Enzi
United States Senator
Russell Senate Building, Room 379A
Washington, D.C. 20510
The Honorable John Barrasso, M.D.
United States Senator
307 Dirksen Senate Office Building
Washington, D.C. 20510
Dear Senators:
In a case last year where Ireane Kellogg, a Wor-
land woman, incurred an epileptic seizure, and was
prohibited by her doctor from driving, she lost her job.
Under the American with Disabilities Act, a disability
is “a physical or mental impairment that substan-
tially limits one or more major life activities.” 42
U.S.C. § 12102(2)(A). I instructed the jury that driv-
ing was a major life activity, and the jury found thai
it was in Ms. Kellogg’s case, where in her job she had
to drive daily in a company truck as much as two
hours to a work site in an oilfield, and a similar
return to Worland to provide services to her em-
ployer’s clients.
App. 34
On October 15, 2008 a 3 judge panel of the Court
of Appeals held that driving, even in Wyoming, was
not a major life activity. I enclose a copy of that
opinion. You will note that judge Holloway, a veteran
jurist, agreed with me that when 91% of workers in
America use an automobile to get to work in the
mcdern life of our nation, driving is of central impcr-
tance to our daily lives and is therefore a major life
activity.
I have reviewed the two cases, a New York case
and a Florida case, on which the majority opinion was
in part based. I don’t think they are applicable to the
West. I hold that in Wyoming, where public transpor-
tation is virtually non-existent, and distances be-
tween towns are measured in hours, and residents
often must seek employment outside of their local
community, and winter conditions limit fast travel,
driving is clearly a major life activity. It certainly was
for Ms. Kellogg.
EEOC in its regulations has not said that it is. In
the Eleventh Circuit opinion the judge said, “We are
an automobile society, so that it is not entirely far-
fetched to promote driving to a major life activity.
True, it is not like “caring for oneself or performing
manual tasks, or walking, seeing, hearing, speaking,
breathing, learning and working”, but it is a manual
task and is just as important. I don’t think Congress
intended to limit ADA to basics, like breathing, etc.
App. 35
It is obvious to us all that EEOC isn’t going to
amend its regulations. It will wait for a sign from
Congress.
Therefore, I suggest to you that you should act
now to amend ADA by providing a footnote stating
that “major life activities” should include activity
rendered in performance of work-related tasks, such
as driving.
Sincerely,
/s/ Clarence A. Brimmer
Clarence A. Brimmer
United States District Judge
CAB:jlw
cc: Bruce 8S. Asay, Esq.
Thomas A. Thompson, Esq.
App. 36
Thomas A. Thompson
and Catherine MacPherson of
MacPherson, Kelly & Thompson, LLC
616 West Buffalo St.
P.O. Box 999
Rawlins WY 82301
(307) 324-2713
(307) 324-7348 (fax)
Attorney for Defendant Energy Safety Services, Inc.
d/b/a Oilind Safety, an Arizona Corporation.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
IREANE KELLOGG,
Plaintiff,
vs. a ;
Civil Action No.
ENERGY SAFETY SERVICES, 06-CV-0110 B
INC. d/b/a OILIND SAFETY,
an Arizona Corporation,
Defendants.
NOTICE OF APPEAL
NOTICE IS HEREBY GIVEN that Energy
Safety Services, Inc. d/b/a Oilind Safety, Defendant in
the above named case hereby appeals to the United
States Court of Appeals for the Tenth Circuit from
that final Judgment entered in this action on the
17th day of August, 2007.
App. 37
DATED this 14th day of September, 2007.
/s/ Thomas A. Thompson
Thomas A. Thompson
Catherine MacPherson
MacPherson, Kelly &
Thompson, LLC
PO Box 999
516 W. Buffalo
Rawlins, WY 82301
(307) 324-2713
(307) 324-7348
CERTIFICATE OF SERVICE
This is to certify that on the 14th day of Septem-
ber, 2007, at Rawlins, Wyoming, I served the fore-
going instrument by causing to be deposited a fuil,
true and correct copy thereof in the United States
Mail, duly enveloped with postage prepaid, and
addressed to:
Bruce S. Asay
Associated Legal Group, LLC
1807 Capitol Avenue, Suite 203
Cheyenne, WY 82001
/s/
For MacPherson, Kelly,
& Thompson, LLC
App. 38
Case No. 07-8072
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
IREANE KELLOGG,
Plaintiff-Appellee
¥.
ENERGY SAFETY SERVICE,
INC., d/b/a OILIND SAFETY,
an Arizona Corporation
ee Nee ee eee ee”
Defendant-Appellant.
ON APPEAL FROM THE DECISION OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT WYOMING
The Honorable Clarence A. Brimmer
District Court Civil Action No. CV-06-0110B
IREANE KELLOGG’S PETITION
FOR REHEARING EN BANC
Bruce S. Asay, Bar No. 5-1939
Associated Legal Group, LLC
1807 Capitol Ave. Ste. 203
Cheyenne, WY 82001
Telephone: (307) 632-2888
Facsimile (307) 632-2828
Attorney for Ireane Kellogg
October 29, 2008
App. 39
THIS PETITION CONTAINS A REQUEST
FOR REHEARING EN BANC
TABLE OF CONTENTS
SAR FE AGT EEF IeE BERD serevcesccsesccnsccscasessacessonse ill
i ee ETT dvtrcsdesihcéssandstatvinsanrctsatensiess 1
II. STATEMENT IN SUPPORT OF RE-
RERRPASCRN VEE GEEY EAPREVES cescressccscescocescossesceseconse 1
BER, — BORE as BAPE IME cosesccnevienascorsconseveversseeees 2
IV. RELEVANT PROCEDURAL HISTORY ..... 3
e.. SEES sities csssenscvcscassanestantaenseasmnentds 4
Te, IE ericcnnesacnnsssecuineincdeniiniteniancons 14
CERTIFICATE OF DIGITAL SUBMISSION........ 15
CERTIFICATE OF SERVICE................ssccccsssssseees 15
TABLE OF AUTHORITIES
Table of Cases:
Abbott v. Bragdon,
107 F3d 934, 939-941 (1st Cir. 1997) ........... eee eeeeeee 4
Adams v. Rice,
BSL FG BOS (D.C. Cin, BO0G) cccccvcecesscsessssesssvccnssnesess 4
Arnold v. County of Cook,
220 F.Supp. 2d 893, 895 (N.D. ILL., 2002)............. 13
Bailey v. United States,
RR te SED bc cic sis ssicseunevocteansevacvoueemeleueleaiaend: 5
Bragdon v. Abbott,
ee Sree eg Ek (ED onsetdcscrcespsccncssnsseceinss 5,6,10
App. 40
Chenoweth v. Hillsborough Cu.,
250 F.3d 1328 (11th Cir. ZOOL)....rerccercerorees 1,11,12,13
Colwell v. Suffolk County Police Department,
158 F3d 635, 643 (2nd Cir. 1998) ................. 11,12,13
Doe v, Kohn Nast and Graf, PC,
862 F. Supp 1310, 1320 (E.D. Pa. 1994).......00...00.. 6
Dutcher v. Ingalls Shipbuilding,
53 F.3d 723, 726 (5th Cir 1995) ......... cece eee cecee ee eeee ll
EEOC v. Voss Electrical Co.,
257 F. Supp. 2d 1354 (W.D. Okla 2003)................0... 5
Endlich v. Yellow Corp.,
182 Fed App. 825, 829 (10th Cir. 2006)............... 2,12
Harding v. Ciambro Corps.,
BOS BOG, BAO (LOO CO) evccccscccccccccccccsscccccsccccceccescecocesccoses 4
Head v. Glacier Northwest Inc.,
413 F.3d 1053 (9th Cir. 2005) ...... eee eeeee eee eee 5
Holt v. Grand Lake Mental Health Ctr., Inc.,
443 F3d 762, 767 (10th Cir. 2006) ..............c cece eee ee 7
Lawson v. CSX Transportation Inc.,
245 F.3d 916 (8th Cir. 1999) ..........0.00 eee eee ee 4
Norris v. Allred-Sysco Food Services, Inc.,
948 F. Supp. 1418 (N.D. Cal, 1996)........0. ee. 13
Pack v. Kmart Corp.,
166 F.3d 1300 (10th Cir. 1999) ....... ec cccceeceeeee sevens 5
Regional Economic Community v. City
of Middletown,
294 F.3d 35, 47 (2nd Cir. 2002) ...............0..005. 2,11,12
Runnebaum v. Nations Bank of Md.,
123 F.3d 156, 170 (4th Cir.,1997) ........ ee eeeceeeeeee eee g
App. 41
Ryan v. Grae & Rybicki, P-C.,
135 F.3d 867, 871 (2d Cir. 1998)..............cccccsccssceers 11
Smith v. United States,
ee ats Ss SE MITES. ss cnsncsnsencusecsenseneseccebioatinies 5
Soileau v. Guilford of Maine, Inc.,
BE Fe Be ee Gy Be vncevevccocsesceccnccsercessacusnecens 5
Taylor v. Phoenixville School District,
184 F.3d 206 (Srd Cir. 1900) ......ccccccccccscccscoccsccssesceees 5
Toyota Motor MFG., KY., Inc. v. Williams,
534 US 184, 186 (2002).........cccccccccseceececececeeeeee. 6,7,11
Williams v. Chanel Master Satellite Sys., Inc.,
101 F.3d 346, 349 (4th Cir.1996),
cert denied. 520 U.S. 1240 (1997)...............cceceeees 9,12
Workmen v. Frito-Lay, Inc.,
16GB F.5G S460 (Gti Cir, 19GB) ncccccccsccccccccccccvccscescecsocecs 4
Rules:
I i ee ean 4
Federal Rules of Appellate Procedure Rule 35............ 1
Federal Rule of Appellate Procedure 35(b)(1) ............. 1
Other Authorities:
Americans with Disabilities Act,
42 U.S.C. § 12112 et al.
Oe ks ie MD i ccstscctosecccecentcocccncssecctecins 1,3,4,11
Fair Labor Standards Act,
a eee Sg Oe GO sisscnccsiscestorsesbassbetnpaeecaeinans 3
Rehabilitation Act of 1973,
OF OF as Ie GG vcsnidcsctdindencseesesiencnddancsions 6,10,11
App. 42
American Heritage Dictionary of English
alk ac cesinsintibnstaenaineel 5
1084 (3rd Edition 1992)
Webster’s 9th New Coilegiate Dictionary, ................... 5
718 (1989)
I. Introduction
Pursuant to the Federal Rules of Appellate
Procedure, Rule 35, the Plaintiff-Appellee, [reane
Kellogg, through her undersigned counsel, Associated
Legal Group, LLC hereby petitions this Court for a
rehearing en banc of the decision of the appellate
panel entered on October 15, 2008 in the above cap-
tion matter.
A copy of the Panel’s unpublished slip opinion,
Kelivgg v. Energy Safety Services, Inc., d/b/a Oilind
Safety, No. 07-8072 (10th Cir. Oct. 15, 2008) is pro-
vided as Attachment A.
ll. Statement in Support of Rehearing En
Banc
Pursuant to Federal Rule of Appellate Frocedure
35(b)(1), Lreane Kellogg submits the following re-
quired statement in support of rehearing en banc:
The proceeding involves a question of exceptional
importance: In Wyoming, a rural state, is driving a
major life activity?
Petitioner requests that the decision of the Panel
Majority be reviewed en banc as the Panel Majority’s
App. 43
holding that driving is not a major life activity in
Wyoming under the Americans with Disabilities Act
(“ADA”), 42 USC § 12112 e¢ al. is a vitally important
policy decision that runs counter to the trend in the
interpretation of the law and is contrary to the inter-
ests of the rural disabled. Moreover, the Panel Major-
ity’s decision, while consistent with the 11th Circuit
in Chenoweth v. Hillsborough Co., 250 F.3d 1328
(11th Cir. 2001), is inconsistent with the developing
law, courts and other circuits including the 10th
(Endlich v. Yellow Corp. 182 Fed App. 825, 829 (10th
Cir. 2006) and 2nd (Regional Economic Community v.
City of Middletown, 294 F.3d 35, 47 (2nd Cir. 2002)
that have listed driving as a major life activity.
Ill. F istor
Oilind hired Ireane Kellogg as a safety technician
in Worland, Wyoming, in June 2004. Oilind is an
industrial safety company that provides safety re-
lated services, such as training and environmental
monitoring to industrial customers. Oilind operates
sixteen (16) offices in ten states and during the time
in question had approximately 150 employees. The
Worland office is one of Oilind’s four (4) oil field
offices.
As a safety technician, Ms. Kellogg traveled to oil
fields to provide safety services to clients. While Ms.
Kellogg occasionally worked in the shop, when in the
field, she would pick up the company vehicle early in
the morning and drive approximately two hours to
App. 44
the worksite where she would typically work a
twelve-hour shift before driving two hours back to the
office in Worland.
Due to the excessive hours of work, Ms. Kellogg
began to note times that she would space out while
driving to and from work. On January 20, 2005 Ms.
Kellogg missed an entire day of work and yet had no
recollection that she had missed a day. While she was
seen by a doctor at that time, it was two days later,
when she lost consciousness in front of her children,
that Ms. Kellogg was hospitalized in Worland. She
was then transferred by ambulance to a Billings,
Montana hospital. In the Billings hospital, she was
diagnosed by a neurologist as having complex partial
seizures, a form of epilepsy.
While in the hospital she was told by Oilind that
she could return to work. In February of 2005, Ms
Kellogg took a doctor’s note to the Worland office and
requested that she be able to go back to work. The
district manager, who needed her help in the office as
he was shorthanded, indicated that he would need to
speak with corporate headquarters. Subsequently,
Ms. Kellogg returned to the shop every week to check
on the status of her job and was repeatedly rebuffed.
Finally, she was told by the district manager that she
was considered “a liability” by Oilind.
In a Jetter dated May 5, 2005, Oilind informed
Ms. Kellogg that it was “not able to employ her in a
safety sensitive position” without a full release from
her doctor. As Ms. Kellogg was required to turn in her
App. 45
keys and her logbook, she deemed herself fired and
brought suit under the ADA and the Fair Labor
Standards Act (“FLSA”). In the subsequent trial, the
jury, after an eight-day trial, found in her favor on
both the ADA and FLSA claims.
IV. Relevant Procedural History
The Judgment of the District Court was appealed
to the Tenth Circuit Court of Appeals under both the
ADA and FSLA. The Tenth Circuit Panel in a decision
dated October 15, 2008 upheld the jury verdict on the
FLSA claim, but reversed the ADA claim and re-
manded it for a retrial due to the jury instruction
which had instructed the jury that “driving” was a
major life activity.
V. Discussion
The Court en banc should review whether driving is
a major life activity in a rural state such as Wyo-
ming.
Under the Americans with Disabilities Act, a
disability is “a physical or mental impairment that
substantially limits one or more .. . major life activi-
ties.” 42 USC § 12102(2)(A). A “major life activity” is
not defined in this statute or specifically in the Code
of Federal Regulations (“CFR”). Nevertheless, the
CFR defines “major life activities” by functionality. It
states: “Major life activities means functions such as
caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and
App. 46
working”. 29 CFR § 1630.2(i). As driving was not
listed, the Panel Majority did not consider its major
life activity.
The enumeration of major life activities is not
meant to be exclusive; the identified functions have
been expanded by comment and jurisprudence. The
comments to the regulations expand the activities to
encompass sitting, standing, lifting and reaching.
Harding v. Ciambro Corps., 436 F.3d, 223 (1996).
Other courts have found such actions as reproduction,
(Abbott v. Bragdon, 107 F.3d 934, 939-941 (1st Cir.
1997), bowel movements, (Workmen v. Frito-Lay, Inc.,
165 F.3d 460 (6th Cir. 1999), sexual relations, (Adams
v. Rice, 531 F.3d 936 (D.C. Cir. 2008), eating, (Lawson
v. CSX Transportation Inc., 245 F.3d 916 (8th Cir.
1999), sleeping, (Pack v. Kmart Corp., 166 F.3d 1300
(10th Cir. 1999), reading, (Head v. Glacier Northwest
Inc., 413 F.3d 1053 (9th Cir. 2005) thinking, (Taylor v.
Phoenixville School District, 184 F.3d 296 (3rd Cir.
1999)), communicating, (Soileau v. Quilford of Maine,
Inc., 105 F.3d 121 (1st Cir. 1997)), and interacting
with others, (EEOC v. Voss Electrical Co., 257
F. Supp. 2d 1354 (W.D. Okla 2003) to be major life
activities.
The activities listed in the regulation are of
central importance to individuals’ lives but certainly,
the list of major life activities is broader than those
functions listed by the regulation and adopted by the
Panel Majority. Although the term “major life activi-
ties” is not defined in the regulation, the Court is
obliged to construe it more broadly and in accordance
App. 47
with its natural (that is, ordinary) meaning. See
Bailey v. United States, 516 U.S. 137 (1995): Smith v.
United States, 508 U.S. 223, 228 (1993). Noted by the
dissent, the Bragdon court, (Bragdon v. Abbott, 524
U.S. 624, 631 (1998), followed this analysis stating
that the plain meaning of the word “major” denotes
comparative importance such as being greater in
rank, dignity or importance. Brangdon, supra.quoting
from the American Heritage Dictionary of English
Language 1084 (3rd Edition 1992) and Webster’s 9th
New Collegiate Dictionary 718 (1989). The Court
stated that these definitions strongly suggest that the
touchstone for determining an activity’s inclusion
under the statutory rubric is its significance. Bragdon
at 941. Certainly driving is an essential and signifi-
cant daily activity, particularly in rural areas such as
Wyoming, as it encompasses the ability to work,
learn, educate, medicate and recreate and easily
qualifies under the definition. It is certainly as cen-
tral to life in rural areas as other identified major life
activities.
Viewed from another perspective; from the van-
tage point of the Rehabilitation Act of 1973, driving
constitutes a “major life activity”. 29 U.S.C. §706 et
seq. The Rehabilitation Act provides an additional
perspective as the term “major life activities” was
lifted from the Act. See Bragdon at 941. In utilizing
this phraseology as taken from the Rehabilitation
Act, Congress intended that the ADA would not only
retain its original meeting, but would be accorded “a
broad definition” not limited to traditional handicaps.
App. 48
See Bragdon, at 941. (Had Congress sought to confine
the definition of disability merely, it surely would
have written new, more restrictive language instead
of borrowing a descriptive phrase notable for its
breadth.) Doe v. Kohn Nast and Graf, PC 862 F. Supp
1310, 1320 (E.D. Pa. 1994).
In providing substance to the definition, the
Supreme Court recently stated, “to be substantially
limited ... , an individual must have an impairment
that prevents or severely restricts the individual from
doing activities that are of central importance to most
people’s aaily lives.” Toyota Motor MFG., KY, Inc. v.
Williams, 534 US 184, 186 (2002). In defining major
life activities, the question is then: What functions
are of central importance to most people’s daily lives?
In Wyoming, when people have to; drive to hospitals,
drive for groceries, drive to receive medical attention,
drive to contact iaw enforcement, drive to schools,
drive to work, driving is of central importance to their
rural life. Judge Brimmer, the District Court Judge,
understood this as he stated in his order partially
granting and partially denying a motion for summary
judgment. He stated:
This court believes that there is no question
that in Wyoming, where public transporta-
tion is virtually nonexistent, distances be-
tween towns is measured by hours in driving,
economic conditions often require residents
to seek employment outside of their local
community, and long winter conditions sig-
nificantly limit foot or bicycle travel, driving
Ar». 49
is clearly a major life activity. See Toyota Mo-
tor Mfg., KY, Inc. B. Williams, 534 U.S. 184,
19(7] (02002) (finding that “major life activi-
ties” refers to those activities that are of cen-
tral importance to daily life).
Aplt. App., Vol. I at 33 as quoted in the Order at page
7.
The Panel Majority, in their opinion reversing
Judge Brimmer’s opinion found that driving was not
a major life activity and that driving is simply “a
means to an end”, a minor concern for some, discre-
tionary. The Panel Majority stated:
It cannot be disputed that driving is an ex-
tremely important daily activity to many,
even most, adults. Without the ability to
drive, it may be very difficult to care for one-
self or to work. Indeed, we have recognized
that the activity of “caring for oneself en-
compasses normal activities of daily living;
including ... driving... ; Holt v. Grand Lake
Mental Health Ctr., Inc., 443 F3d 762, 767
(10th Cir. 2006)... but driving is, literally, a
means to an end. The activities enumerated
by the EEOC - “caring for oneself, perform-
ing manual tasks, walking, seeing, hearing,
sneaking, breathing, learning, and working”
— are all profoundly more important in and of
themselves than is driving. There are those
who drive just for the pleasure of it (“Hey,
let’s go for a ride”), but that practice is de-
clining and some would now would consider
it unpatriotic. Moreover, the importance of
the enumerated activities is not dependent
App. 50
on where one lives; they are valued as much
by the resident of a major metropolitan area
as by an isolated rural resident. Driving, in
contrast, may be a minor concern for one who
is near convenient mass transit and can walk
to work.
Panel Order at pg. 7-8. See Attachment A
The Panel Majority fails to appreciate the central
importance of driving to people in rural areas. They
state that driving is not a major life activity because
it is not as important as the EEOC listed functions;
simply “a means to an end”. They also contend that
driving is only part of caring for oneself or working
and not a major life activity on its own. This argu-
ment ignores the many other major life activities but
is also incorrect and is, in part, a semantical argu-
ment as the same can be said about the other enu-
merated functions listed by the regulation. For
example: walking. It can be argued that walking is a
means to an end in the same sense that driving would
be considered a means to an end; i.e. walking to the
grocery store to get food or toothpaste. In this vein,
walking is part of “caring for oneself” because people
sometimes walk to get the necessities, and in fact,
there are even those who walk for pleasure (“Hey,
let’s go for a walk in the park.”)
A similar argument can be made for speaking.
Certain individuals can function quite well without
speaking. They go to work and communicate via
email or they may even communicate by letter purely
for pleasure. There are even those monks who have
App. 51
voluntarily taken a vow of silence and never speak.
Speaking then, while an efficient (though imperfect)
method of communicating is elective; a life style
choice. Likewise, the same can be said of working or
learning. There is a broad segment of society that is
retired and not at all interested in working. The same
can be said of the many people whose lives are so
tedious and mundane that they require little if any
learning. Given the analysis of the Panel Majority;
why are these functions major life activities? Why is
driving less important than reading, sleeping, com-
municating, sexual relations or interacting with
others? The Panel Majority fails to recognize the
importance of driving to rural life.
Whether a function is a major life, activity must
be analyzed in relation to people’s daily lives. While a
determination of disability under the statues requires
an individual analysis, an analysis of whether an
activity constitutes a major life activity does not. The
analysis is whether an activity is of central impor-
tance to people’s lives not whether the major life
activity is important to the individual. See Williams
v. Channel Master Satellite Sys., Inc., 101 F.3d 346,
349 (4th Cir.1996), cert denied. 520 U.S. 1240 (1997)
quoted in Runnebaum v. Nations Bank of Md., 123
F.3d 156, 170 (4th Cir.,1997). It is not correct for a
court in Chicago or Miami to determine that driving
is not of central importance because everyone can
take a bus or a subway to accomplish the necessities
of life. The importance of the issue must be analyzed
in the context of the people affected.
App. 52
Judge Brimmer, writing as the District Court
Judge and Judge Holloway, writing in dissent cor-
rectly analyzed this issue. They found that if the
function is of central importance to people in their
daily lives, it is a major life activity. Judge Holloway
noted:
This is an issue of statutory interpretation,
as so we begin with the statutory language:
“major life activity.” Congress chose to use
broad language, employing only everyday
terms, to express its intent regarding the
scope of coverage of the Act. As the Supreme
Court noted in Bragdon v. Abbott, 524 U.S.
624, 631 (1998), Congress had used almost
identical language in the Rehabilitation Act
of 1973. Congress was undoubtedly aware
that the courts would imply from the use of
an established term that Congress intended
the terms to be construed similarly in the
ADA, but Congress did not rely solely on that
established practice. Instead, Congress spe-
cifically provided:
Except as otherwise provided within this
chapter, nothing within this chapter will
be construed te apply a lesser standard
than the standards applied under Title V
of the Rehabilitation Act of 1973 or
the regulations issued by Federal agen-
cies pursuant to such title.” 42 U.S.C.
§ 12201(a).
Thus, it is clear that Congress meant the
term “major life activity” to have a wide
reach and we should construe it accordingly.
App. 53
Giving the words their understood and ac-
cepted meaning, keeping in mind that the
use of this broad language is indicative of
Congressional intent, and applying these
principles in the context of modem life in our
nation, I conclude that driving is clearly a
major life activity, as the district judge held
here.
The majority’s analysis seems to me to rest
almost entirely on comparison of the impor-
tance of the activity of driving with the fun-
damental importance of activities listed in
the EEOC regulation as examples of major
life activities. But as the majority notes, the
EEOC regulations do not command judicial
deference. Moreover, it is undisputed that
the examples in the regulation are not exclu-
sive. ... It seems to me that the majority has
displaced the conventional judicial task of
giving ordinary terms their ordinary mean-
ing and has implemented instead an ap-
proach that takes a list of examples form a
regulation of undetermined authority as hav-
ing set a floor for the meaning of the term
“major,” without stopping to ask whether the
result is consistent with the words Congress
chose to express its intent.
The majority notes that the only two circuits
that seem to have addressed this question
directly have held that driving is not in itself
a major life activity. I am not convinced that
these holdings are correct. In Chenoweth v.
Hillsborough County, 250 F.3d 1328 (11th
App. 54
Cir. 2001), the entire analysis consists of lit-
tle more than three sentences...
The majority also relies on Colwell v. Suffolk
County Police Dept., 158 F3d 635 (2nd Cir.
1998). However, as Ms Kellogg points out, .. .
the Second Circuit has more recently stated
a different view. In Regional Economic Com-
munity v. City of Middletown, 294 F.3d 35
(2nd Cir. 2002), dealt with the issue whether
an alcoholic or drug abuser was impaired
under definitions set forth in the ADA and
the Rehabilitation Act, inter alia. The Second
Circuit noted that to be substantially limited
under analysis of the Supreme Court in Tby-
ota Motor Mfg., KY. v. Williams, 234 U.S. 184
(2002), required restriction from activities of
central importance to most people’s daily
lives. In that context the Second Circuit
stated:
“The function of “caring for oneself,” we
have held, “encompasses normal activi-
ties of daily living; including feeding
oneself, driving, grooming, and cleaning
home.” Ryan v. Grae & Rybicki, P-C., 135
F.3d 867, 871 (2d Cir. 1998) (citing
Dutcher v. Ingalls Shipbuilding, 53 F.3d
723, 726 (5th Cir 1995)). Williams con-
firms that such “tasks central to most
people’s daily lives” constitute major life
activities. 534 U.S. at __, 122 S.Ct.
693.”
There are compelling reasons to think that
driving should qualify as a major life activity.
App. 55
Driving appears to be ‘of central importance
to most people’s daily lives.
Panel Order, Dissent at pages 3 & 4. Attachment A.
The Panel Majority quotes in its opinion
Chenoweth, an 11th Circuit opinion for its support.
This Court, an urban court, while stating that it
would not be “far fetched” to consider driving as a
major life activity, viewed the regulation defining
major life activities as limited and closed. It viewed
the list as exclusive, not illustrative. Therefore, in an
urban setting, driving was not as important as the
regulation’s major life activities. As the listed activi-
ties were not meant to be exclusive, the Chenoweth
Court’s analysis, which was cursory, must be treated
as limited in context of the Chenoweth facts.
In Chenoweth, the plaintiff had a limited six-
month driving limitation in a major metropolitan
area with public transportation readily available.
This is hardly the case in the instant matter where
public transportation is non-existent and there is no
alternative transportation. Given the fundamental
difference existing between very rural versus urban
environments, this Court as did Judge Brimmer,
should be disinclined to follow Chenoweth’s limited
and restricted analysis when compared to the impor-
tance of driving in rural areas..
While the Panel Majority noted that the 2nd
Circuit in Colwell v. Suffolk County Police Depart-
ment, 158 F3d 635, 643 (2nd Cir. 1998) had found
App. 56
that driving was not a major life activity, a more
recent 2nd Circuit opinion had found to the contrary.
As noted by the dissent, in Regional Economic Com-
munity v. City of Middleton, 294 F3d 35 (2nd Cir.
2002). The court analyzed those factors that were of
central importance to most people’s daily lives and
found that such tasks as driving constituted major
life activities as they are central to most people’s
daily lives. Quoting Williams, supra at 643. This is
further inconsistent with a holding in this Circuit,
Endlich v. Yellow Corp., 182 Fed App. 825, 829 (10th
Cir. 2006), where the 10th Circuit listed reaching,
throwing, lifting or driving as major life activities.
In Arnold v. County of Cook, 220 F.Supp. 2d 893,
895 (N.D. ILL., 2002), the Court observed that driv-
ing was of central importance in most people’s daily
lives and that certain courts that had held otherwise
(Colwell, supra) were making a U-turn. As driving is
of central importai.ce to people in rural areas, the
court, en banc, should recognize that driving is a
major life activity. This is particularly the fact when
at least one court has held that driving could be
considered a major life activity in a particular area,
Norris v. Allred-Sysco Food Services, Inc., 948
F. Supp. 1418 (N.D. Cal, 1996) (“(A]t least in Califor-
nia, driving is a major life activity.”) If driving can be
a major life activity in California, certainly a Wyo-
ming District Court can find that it is of central
importance in Wyoming.
App. 57
Although the Chenoweth court and the Panel
Majority found the question to be close, Judge Brim-
mer found that driving is a major life activity to
which Judge Holloway agreed. Given the liberal
interpretation to be given the phraseology as inter-
preted from the Rehabilitation Act, the question must
be resolved in favor of the plaintiff, Ms. Kellogg.
Driving constitutes a major life activity because it is
of singular importance to those individuals in rural
areas who depend on it for their daily lives, both in
terms of its importance of their lives but also in terms
of their daily existence. The Court must be mindful of
this rural reality and honor the Congressional intent
to allow for a broad interpretation of the phraseology,
major life activity, and find particularly in rural
areas, that driving is a major life activity within the
meaning of the ADA.
VI. Conclusion
In conclusion, the Plaintiff established that she
was terminated by her employer for her disability.
She established that without the ability to drive she
and all others in rural areas would not be able to
work, shop, seek medical attention and so forth. The
Court must be mindful of this rural reality and honor
the Congressional intent to allow for a broad inter-
pretation of the phraseology, major life activity, and
find in particularly in rural areas, that driving is a
major life activity within the meaning of the ADA.
App. 58
DATED this 29th day of October 2008.
/s/ Bruce Asay
Bruce S. Asay
Associated Legal Group, LLC
1807 Capitol Avenue, Suite 203
Cheyenne, Wyoming 82001
Telephone: (307) 632-2888
basay@associatedlegal.cem
CERTIFICATION OF DIGITAL SUBMISSIONS
I hereby certify that:
(1)
(2)
all required privacy redactions (below) have been
made and, with the exception of those redactions,
every document submitted in Digital Form or
scanned PDF format is an exact copy of the writ-
ten document filed with the Clerk, and
the digital submissions have been scanned for
viruses with the most recent version of a com-
mercial virus-scanning program — AVG Profes-
sional Network Version 7.5, and according to the
program, are free of viruses.
/s/ Bruce Asay
Bruce S. Asay
App. 59
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and
correct copy of the Petitioner’s Petition for Rehearing
En Banc was served electronically and via U.S. Mail,
postage prepaid on the 29th day of October 2008 to:
Thomas A. Thompson
Brandon W. Snyder
Catherine MacPherson
MacPherson Kelly & Thompson, LLC
P.O. Box 999
Rawlins, WY 82301
/s/ Bruce Asay
Bruce S. Asay
[Attachment A Omitted In Printing]
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