# Opposition Brief, — Kellogg v. Energy Safety Services, Inc. (No. 08-1013)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief,
- **Published:** January 1, 2009

## Text

My, FILED

MAR 4 - 2009
No. 08-104 30FFIcE oF THE CLER

—u>

Wott tT SIFT TT, Wee

jn The
Supreme Court of the GAnited States

IREANE KELLOGG,

Petitioner,
Vv.

ENERGY SAFETY SERVICES, INC.
d/b/a OILIND SAFETY, an Arizona Corporation,
Respondent.

On Petition for Writ of Certiorari to the United
States Court of Appeals for the Tenth Circuit

BRIEF IN OPPOSITION

CATHERINE MACPHERSON, OF COUNSEL

Counsel of Record
THOMAS A. THOMPSON

MacPuerson, KeELty & THompson, LLC

616 WEST BUFFALO STREET
Box 999

RaAwLins, WY 82301

Pu: 307-324-2713

Counsel for Respondent

March 12, 2009

Becker Gallagher + Cincinnati, OH - Washington, D.C. + 800 890.5001

1

QUESTION PRESENTED

Whether Petitioner has presented compelling reasons
for this Court to grant the Petition for Writ of

Certiorari where:

A. The decision of the Tenth Circuit Court of
Appeals, which held that driving, itself, is not a
major life activity under the Americans with
Disabilities Act, does not conflict with a decision
of any other United States court of appeals
concerning the same matter;

B. Petitioner has not demonstrated that the
Tenth Circuit’s decision implicates an important
question of federal law that has not been
settled, but should be, by this Court; and

C. Petitioner has not demonstrated that the
Tenth Circuit's decision implicates an important
federal question in a way that conflicts with
relevant decisions of this Court.

il

CORPORATE DISCLOSURE STATEMENT
PURSUANT TO SUPREME COURT RULE 29.6

Respondent Energy Safety Services, Inc., d/b/a
Oilind Safety, an Arizona Corporation, does not have
a parent corporation, and there is no publically held
company that owns ten percent (10%) or more of its
stock.

11

TABLE OF CONTENTS
QUESTION PRESENTED 2... cc cccccssvsvenes i

CORPORATE DISCLOSURE STATEMENT
PURSUANT TO SUPREME COURT RULE

sk PETTERS Eee Ie eee er rere eT ee il
py OF Bt gk oy hg rrr ili
TABLE OF CITED AUTHORITIES ............ Vv

CONSTITUTIONAL PROVISIONS, TREATIES,
STATUTES, ORDINANCES, AND

REGULATIONS INVOLVED .............. 1
STATEMENT OF THE CASE ................ ]
REASONS FOR DENYING THE PETITION .... 6

I. The Tenth Circuit Court of Appeals determined
that driving, in and of itself, is not a major life
activity under the ADA. This decision does not
conflict with the decision of any other United
States court of appeals on the same matter. .. 6

A. The Tenth Circuit’s Decision in this Case. . 6

B. Decisions in Other United States Courts of

II. The Tenth Circuit’s decision is consistent with
this Court’s opinion in Toyota Motor Mfg., Ky.,
Bae; 0; Tee. sk See ek 0h oda eee 17

iv

Il. The Tenth Circuit’s opinion is consistent with
the law in effect at the time of the alleged
discrimination against Petitioner and is
consistent with the newly adopted, though not
applicable, ADA Amendments of 2008. ......

PEE a eGo ot Oe ae oS ae ede ee aR

Vv

TABLE OF CITED AUTHORITIES
CASES

Acevedo Lopez v. Police Department of Puerto Rico,
31 F.Supp. 2d 293 (D.P.R. 1999) ........... 13

Anderson v. North Dakota State Hospital,
S027 2a G3eee” Cir. 2000) .............. 13

Arnold v. County of Cook,
220 F.Supp. 2d 393 (N.D. Ill. E. Div. 2002) .. 14

Berry v. T-Mobile USA, Inc.,
oe ©.36 4311 C10" Cir. 2007) ............ 16

Best v. Shell Oil Co.,
at woe eee Ge. TOOT)... ww ew ces 9

Chenoweth v. Hillsborcugh County,
250 F.3d 1328 (11 Cir. 2001) ......... 7,9, 10

Colwell v. Suffolk County Police Dept.,
158 F.3d 635 (2% Cir. 1998) ..... 7,3, 41, 42, 32

Endlich v. Yellow Corp..,
No. 05-2215, 2006 WL 1520177 (10 Cir. June
Z, DOGG) CUMDUDESIOG) .. ee ee eee 14,15

Holt v. Grand Lake Mental Health Ctr., Inc.,
443 F.3d 762 (10 Cir. 2006) ............ 8,17

Kealy v. Consolidated Edison Co. of N.Y.,
No. 98 Civ. 2210 (MGC), 2002 WL 1552027
OR eae ge | 5 ae 13

vi

Kellogg v. Energy Safety Services, Inc.,
544 F.3d 1121 (10 Cir. 2008) ...... 6,9, 17,18

Norris v. Allied-Sysco Food Services, Inc.,
948 F.Supp. 1418 (N.D. Cal. 1996) ......... 15

Regional ‘Economic Community v. City of
Middletown,
a4 F 30 36 @™ Clr. M02)... .......... 11, 12

Ryan v. Grae & Rybicki, P.C.,
BOG FOO OG7 (2°SCir. 1008)... ee ess 12

Sacay v. Research Foundation of City University of
New York,
193 F.Supp. 2d 611 (E.D.N.Y. 2000) ........ 13

Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615
Cn 14405 664s hobo eee 4 a eS 11, 12, 17, 18

Yindee v. Commerce Clearinghouse, Inc.,
No. 04 C 0730, 2005 WL 1458210 (N.D. II.

June 16, 2005) (unpublished) ............. 14
STATUTES
ee Oe Ns obs oi 60 0a se ose bes 6 OKO 1
Oe aes BRD 6 ob eet e eee secseeues 7, 20
Re ts RUE ooo 05 ck hes Ho ea os we es 7, 20

I I 6.6 80-5. d o.4s9'o one eon a eee 5

vil

ADA Amendments Act of 2008, Pub.L.No. 110-325,

ee oa ee awe ee ties 20
RULES
6 Os ee a pee eae ee 21
REGULATIONS
eh BM ee a re 12
, Tek p Me : | er 12
Be ee REE ecb cd ede e evan eeee 1,7, 10
Be ee a- BOOP noe eve rs eceenewets 9

5 es eae Ee i es | arora 12

1

CONSTITUTIONAL PROVISIONS,
TREATIES, STATUTES, ORDINANCES,
AND REGULATIONS INVOLVED

42 U.S.C. § 12102(2) [Americans with Disabilities
Act of 1990] was in effect at the time this matter arose,
and provides as follows:

DISABILITY-—the term “disability” means, with
respect to an individual—

(A) a physical or mental impairment that
substantially limits one or more of the major life
activities of such individual... .

29 C.F.R. § 1630.2(i):

Major life activities are functions such as caring
for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning,
and working.

STATEMENT OF THE CASE

Energy Safety Services, Inc., d/b/a/Oilind Safety
[Oilind] is an industrial safety company with sixteen
offices located in ten states. Four of the offices,
including the one located in Worland, Wyoming,
where Petitioner Kellogg worked, provided safety-
related services to oilfield facilities. (Record, TR Vol. V
at 953) Those safety-related services included
environmental monitoring; safety consulting, training,
and supervision; sale of safety supplies, clothing, and
equipment; servicing and repairing safety equipment,
safety air packs, and _ respirators/air breathing
apparatuses used by customers’ employees to protect

2

against exposures to toxic or hazardous environmental
substances. (Record, TR Vol. VII at 974)

Ms. Kellogg was hired by Oilind in June, 2004, as
a safety technician/supervisor. The _ skills,
qualifications, and duties were set forth in job
descriptions. (Record, TR Vol. VII at 1181;1185)
Oilind’s vehicles were registered with the United
States Department of Transportation (“DOT”) as
commercial vehicles. (Record, TR Vol. IV at 625) A
safety technician/supervisor was required to hold a
valid commercial driver’s license (CDL) with
hazardous materials (HazMat) endorsement. (Record,
TR Vol. Vil o£ 3281; 1366) Safety
technicians/supervisors were required to drive from
the Oilind shop in Worland in a company vehicle to
customers’ work sites in the oilfield. (Record, TR Vol.
II at 354) Travel typically required up to two hours,
one way, to the site and up to two hours to return
after completing work at the site. (Record, TR Vol. II
at 282, 366; Vol. Vi at 982) Safety
technicians/supervisors, including Kellogg, on
occasion, pulled a trailer with a compressed air tank;
compressed air tanks are considered a hazardous
material by DOT. Kellogg and other safety
technicians/supervisors were required to maintain
DOT driver’s logs of driving and working time.
(Record, TR Vol. II at 343-44; 412)

Kellogg, on occasion, worked in Oilind’s shop in
Worland. The work performed in the shop involved
repairing, sanitizing and recharging (with compressed
air) the safety air packs and breathing respirators
which were used by customers’ employees to protect
against exposure to toxic or hazardous environmental
substances. Once these tasks were completed, the air

3

canisters were marked with Oilind’s DOT stamp and
numbers certifying the work had been performed in
conformity with the applicable DOT [pipeline]
regulations. (Record, TR Vol. Il at 407; 425-27; 466)
The position in the shop was considered a “safety-
sensitive position,” and Oilind was required to comply
with DOT pipeline regulations in performing these
functions and services in the shop. (Record, TR Vol. V
at 953-55) The DOT requirements regarding
qualifications and DOT Medical Advisory Criteria
applicable to holders of CDL’s were also applied by
Oilind to those performing “safety-sensitive” tasks in
the shop. (Record, TR Vol. V at 953)

There were no concerns with regard to Kellogg’s
employment until January, 2005. Kellogg came to
work on Friday, January 21, believing it was
Thursday, January 20. She did not recall or know she
missed work the previous day. (Record, TR Vol. II at
322;449) Kellogg sought medical treatment, reporting
a history of several similar episodes in recent months,
and reporting episodes of vertigo which lasted for
several minutes. (Record, TR Vol. II at 447-48, 488)

On January 23, 2005, Kellogg was treated at the
emergency room in Worland and transferred to a
hospital in Billings, Montana, where she was treated
by Dr. Echeverri. (Record, TR Vol. V at 822) Dr.
Echeverri discharged Kellogg on January 25 with a
restriction not to drive. (Record, TR Vol. V at 827) On
January 31, Dr. Echeverri issued a note that Kellogg
had recovered sufficiently to return to work, but with
the restriction of no driving until she was seen again
by him. (Record, TR Vol. V at 828) On February 14,
Dr. Echeverri opined Kellogg was suffering from
complex partial seizures, a form of epilepsy, and

4

placed her on anti-convulsion medication. Dr.
Echeverri provided Kellogg with a note that she was
released to work, but still restricted from driving until
her medications were under control. (Record, TR Vol.
V at 823, 830, 844) Dr. Echeverri testified he intended
to continue to treat Kellogg in order to monitor her
medication, but she never returned after February 14.
Dr. Echeverri did not provide a release for Kellogg to
drive on the medication he had prescribed. (Record, TR
Vol. V at 833-34; 844-45)

Kellogg testified that Dr. Echeverri provided her
with an additional note sometime in March, 2005,
which continued to restrict her from operating a
vehicle under her CDL licence with HazMat
endorsement. (Record, TR Vol. III at 461-62, 508-09)
Kellogg provided Oilind with copies of the doctor notes
restricting her from driving. (Record, TR Vol. II at 329,
331, 333, 335-37; Vol. III at 456-58)

Kellogg continued to drive her personal motor
vehicle, despite the doctor’s restriction of no driving.
(Record, TR Vol. ITf at 500-01) Ojilind could not, and
did not, allow Kellogg to drive on its behalf or in a
company vehicle because of the doctor’s restrictions.
Both Kellogg’s and Oilind’s employment experts
testified at trial that Kellogg was not qualified to
perform the essential functions of the safety
technician/supervisor position because of the doctor’s
restrictions which prevented Kellogg from driving.
(Record, TR Vol, [V at 781, 783-84; Vol. V 901-03)

During this time period, Kellogg expressed to
Aaron Chainberlain, manager of QOilind’s Worland
office, that she wanted to work in the shop. (Record,
TR Vol. II at 333-34) Chamberlain wanted to put her

5

to work, but was unable to place her in the shop
because the work performed there was considered
“safety-sensitive” under the DOT pipeline regulations.
(Record, TR Vol. II at 380) There were no vacant
positions in the Worland shop, or office generally, and
it was impractical and created an undue hardship for
Oilind to hire a new employee to transport Kellogg to
the customers’ work sites. (Record, TR Vol. II at 378)

On May 5, 2005, Oilind sent Kellogg a letter
requesting she update it as to her status and when she
intended to return to work as_ safety
technician/supervisor. (Record, TR Vol. VII at 1213)
Kellogg did not provide any information as requested.
(Record, TR Vol. III at 507) At the end of May, 2005,
Oilind terminated Kellogg’s employment, but
continued to pay the premiums on her life and
disability insurance until December, 2005. (Record, TR
Vol. III at 465; Vol. V at 880)

Kellogg brought suit against Oilind in May, 2006,
in the United States District Court for the District of
Wyoming. Kellogg asserted a number of claims,
including discrimination under the Americans with
Disabilities Act [of 1990], 42 U.S.C. § 12112. During
the course of that case, the District Court denied
Oilind’s Motior. for Summary Judgment, in pertinent
part, finding that driving, in and of itself, was a major
life activity under the ADA. (Record, Vol. I at 32-34)

The matter was tried to a jury in August, 2007.
Over the objection of Oilind, the District Court
instructed the jury, in three separate instructions, that
driving is a major life activity under the ADA. (Record,
TR Vol. VI at 1052) The District Court also denied
Oilind’s motion for judgment as a matter of law on the

6

same legal basis. (Record, Vol. I at 181-82) An appeal
to the Tenth Circuit Court of Appeal ensued. That
Court, by a majority decision, consistent with decisions
from other courts of appeals, held that driving, itself,

is not a major life activity under the Americans with
Disabilities Act.

REASONS FOR DENYING THE PETITION

I. The Tenth Circuit Court of Appeals
determined that driving, in and of itself, is
not a major life activity under the ADA. This
decision does not conflict with the decision of
any other United States court of appeals on
the same matter.

A. The Tenth Circuit’s Decision in this Case.

The Tenth Circuit, applying the Americans with
Disabilities Act of 1990, acknowledged that 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).

Kellogg v. Energy Safety Services, Inc., 544 F.3d
1121, 1124 (10" Cir. 2008)

The Tenth Circuit noted at pages 1124-25, that the
term “major life activities” is not defined in the

7

statute’, but a regulation promulgated by the Equal
Employment Opportunity Commission defined it as
“functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” 29 C.F R.
§ 1630.2(i).

Having addressed these preliminary requirements
and definitions, the Tenth Circuit addressed the
specific issue of whether driving, itself, is a major life
activity under the ADA, a question of first impression
in the Tenth Circuit. The Tenth Circuit noted two
other circuits had published opinions on the question,
and those two circuits had concluded that driving,
itself, is not a major life activity under the ADA. The
Tenth Circuit cited to Colwell v. Suffolk County Police
Dept., 158 F.3d 635, 643 (2"? Cir. 1998) and Chenoweth
v. Hillsborough County, 250 F.3d 1328, 1329-30 (11"
Cir. 2001).

In reaching its decision, the Tenth Circuit stated:

. 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
extremely 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

* The ADA Amendments Act of 2008 does contain a statutory
definition of “major life activities.” 42 U.S.C. 12102 (2)(A) and (B).

8

activity of “[claring for one’s self encompasses
normal activities of daily living; including. . .
driving. . . .” Holt v. Grand Lake Mental
Health Ctr., Inc., 443 F.3d 762, 767 (10" Cir.
2006) (internal quotation marks omitted). But
driving is, literally, a means to an end. The
activities enumerated by the EEOC—“caring for
oneself, performing 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 declining and some would now consider it
unpatriotic. Moreover, the importance of 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.

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 short circuit the analysis in
determining whether one of these major life
activities had been substantially limited. For
instance, to show a substantie! tumitation in the
major life activity of working, the plaintiff must,
under the EEOC regulations, establis» a
“significant|] restrict{ion] in the ability to
perform either a class of jobs or a broad range of
jobs in various classes as compared to the
average person having comparable training,

9

skills and abilities.” 29 C.F.R. 1630.2())(3)(D.
Undoubtedly, an inability to drive’ will
sometimes enable the plaintiff to meet this
standard. See Best v. Shell Oil Co., 107 F.3d
544, 548 (7" Cir. 1997). Likewise, a restriction
on driving could cause one to be substantially
limited in the activity of caring for oneself. But
a plaintiff should not be permitted to bypass
having to prove substantial limitations in these
major life activities by providing only evidence
that she cannot drive.

Kellogg, supra at 1125-26.

The Tenth Circuit held “that driving was not itself
a major life activity.” Kellogg, supra at 1126. The
Court set aside and vacated the jury verdict on the
ADA claim because the jury had been improperly
instructed on the law, and it was impossible to know
whether the jury based its verdict on just the legally
incorrect ground due to the nature of the verdict form.

B. Decisions in Other United States Courts of
Appeals.

The Tenth Circuit made note of the two circuits
which had already decided driving, itself, is not a
major life activity under the ADA: Chenoweth uv.
Hillsborough County, 250 F.3d 1328, 1329-30 (11 Cir.
2001) and Colwell v. Suffix County Police Department,
158 F.3d 635, 643 (2" Cir. 1998).

The Eleventh Circuit’s decision in Chenoweth
contains the most complete analysis and explanation
of why driving is not, and should not be, a major life
activity under ADA. The Chenoweth case involved the

10

following: Chenoweth was a registered nurse; she
suffered a seizure and was diagnosed as having focal
onset epilepsy. Her doctor prescribed medication
(Lamictal) and advised her, among other things, not to
drive at all until she had gone six months without
experiencing a seizure. Chenoweth brought an action
against her employer alleging various claims,
including claims under ADA. Summary judgment was
granted in favor of the employer on ADA. Chenoweth
appealed, asserting that driving was a major life
activity which entitled her to an accommodation. The
Eleventh Circuit disagreed stating that major life
activities as enumerated by the EEOC regulations are
functions such as “caring for one’s self, performing
manual tasks, walking, seeing, hearing, speaking,
breathing, learning and _ working.” 29 C.F.R.
§1630.2(2).

The Chenoweth Court stated, at 1329-30:

.. Although this enumeration is not exhaustive,
driving is not only absent from the list but is
conspicuously different in character from the
activities that are listed. It would at least be an
oddity that a major life activity should require
a license from the state, revocable for a variety
of reasons including failure to insure. We are
an automobile society and an automobile
economy, so that it is not entirely farfetched to
promote driving to a major life activity; but,
millions of Americans do not drive, millions are
passengers to work and deprivation of being self
driven to work cannot be sensibly compared to
inability to see or to learn. (Emphasis added.)
(Citations omitted.)

11

The Colwell case was decided by the Second
Circuit. That Court generally discussed the ADA and
the major life activities which are listed in the EEOC
regulations. The Second Circuit held, at page 643,

that driving was not a major life activity under the
ADA.

At page 18 of her brief, Petitioner cites to Regional
Economic Community v. City of Middletown, 294 F.3d
35 (2™ Cir. 2002) and states to this Court that
Regional is a “more recent 2”? Circuit opinion which
found to the contrary” of the Colwell decision on the
issue of whether driving, itself, is a major life activity
under the ADA. Reviewing the Regional decision in its
entirety, and that portion cited in the Petitioner’s
brief, it is submitted that this is a misstatement of the
law and of what the Second Circuit said in Regional.

In Colwell, supra, at 643, the Second Circuit
expressly held, though not eloquently, that driving is
not a major life activity under ADA. In Regional, the
Second Circuit was not discussing or deciding whether
driving, itself, was a major life activity. The Second
Circuit's discussion and decision dealt with an
entirely different issue, specifically, the recognized
major life activity of “caring for one’s self,” and what
kinds of normal daily activities of living were
encompassed within that recognized major life activity.
In Regional, the Second Circuit stated, at page 47:

As the Supreme Court recently observed, “[T]o
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.

12

Williams, 534 U.S. 184, 122 S.Ct. 681, 691, 151
L.Ed.2d 615 (2002). The impairment’s impact
must also be “permanent or long-term.” Id.
Major life activities include “functions such as
caring for one’s self, performing manual tasks,
walking, seeing, hearing, speaking, breathing,
learning, and working.” 28 C.F.R. 41.31(b)(2);
45 C.F.R. 84.3(j)(2)(i); 24 C_F.R. 100.201(b). The
function of “caring for one’s self,” we have held,
“encompasses normal activities of daily living;
including feeding oneself, driving, grooming,
and cleaning home.” Ryan v. Grae & Rybicki,
P.C., 185 F.3d 867, 871 (2d Cir 1998)(citing
Dutcher v. Ingalls Shipbuilding, 53 F.2d 723,
726 (5" Cir. 1995)). Williams confirms that
such “tasks central to most people’s daily lives”
constitute major life activities. 122 S.Ct. at 693.
(Emphasis added.)

The decision in Regional was not contrary to the
Colwell decision, and does not conflict with the
decision of the Tenth Circuit. The Tenth Circuit
decision described exactly what Regional says: that a
restriction in driving could cause one to be
substantially limited in the activity of caring for
oneself, and that the inability to drive is evidence of,
and part of the analysis (under Toyota), when
determining whether one of the major life activities
has been substantially limited by a physical or mental
impairment.

The Second, Tenth, and Eleventh Circuits’
decisions concerning the specific issue of whether
driving, itself, is a major life activity are not in
conflict. Petitioner has presented no decisions from

13

other courts of appeals which are in conflict with the
Tenth Circuit’s decision.’

C. Other Jurisdictions.

The United States courts of appeals have been
consistent in the manner in which they have resolved
the issue of whether driving, itself, is a major life
activity under the ADA. Federal district courts (except
for the Wyoming District Court from which this case
arose) when asked, have also held that driving is not
a major life activity under the ADA. Those cases
include: Sacay v. Research Foundation of City
University of New York, 193 F.Supp. 2d 611, 627
(E.D.N.Y. 2000)(citing Colwell, supra at 643); Kealy v.
Consolidated Edison Co. of N.Y., No. 98 Civ. 2210
(MGC), 2002 WL 1552027 at *5 (S.D.N.Y. July 15,
2002) (unpublished (citing Colwell, supra, and stating
that the Second Circuit has explicitly rejected the
argument that driving, by itself, constitutes a major
life activity); Acevedo Lopez v. Police Department of
Puerto Rico, 81 F.Supp. 2d 293, 297 (D.P.R. 1999),
affirmed on other grounds, 247 F.3d 26 (1* Cir. 2001)
(Court found “significance of driving is simply not on
par with those basic, essential human functions that
are within the contemplation of the ADA, such as
caring for oneself, walking, seeing, hearing, speaking,
breathing, learning, and working.”)

? In Anderson v. North Dakota State Hospital, 232 F.3d 634, 636
(8 Cir. 2000), the Eighth Circuit Court of Appeals had an
opportunity to make a definitive decision as to whether driving
was a major life activity under the ADA. However, that Court
declined to do so, and merely “assumed” that driving was a major
life activity, without specifically deciding the issue. However, the
court denied any relief to the claimant.

14

The Respondent brings these cases to the Court’s
attention because Petitioner makes reference, at page
18 of her brief, to Arnold v. County of Cook, 220
F.Supp. 2d 393, 395 (N.D. Ill. E. Div. 2002) citing it as
a decision which conflicts with the Tenth Circuit’s
decision in this case. The Arnold Court did state,
“This court notes 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 person’s daily lives... .” Arnold, supra at 895,
footnote 3. However, in 2005, that same court
(Northern District of Illinois), in the same division
(Eastern Division), reversed itself and held in Yindee
v. Commerce Clearinghouse, Inc., No. 04 C 0730, 2005
WL 1458210 (N.D. Ill. June 16, 2005) (unpublished),
that driving “in and of itself is not of central
importance to daily life on par with activities such as
seeing, hearing, or working in broad class of jobs so it

is not a major life activity as that term is used in an
ADA context.”

Petitioner cites, at page 18 of her brief, Endlich v.
Yellow Corp., No. 05-2215, 2006 WL 1520177 at * 3
(10" Cir. June 2, 2006) (unpublished) for the
proposition that the Tenth Circuit’s decision in this
case is inconsistent with a holding from a court within
the Tenth Circuit. Petitioner states that “the Tenth
Circuit listed reaching, throwing, lifting or driving as
major life activities.” However, a review of that case
demonstrates the Tenth Circuit did not make such a
listing as a holding or decision. The listing was merely
a recitation of Endlich’s allegations, upon which he
failed to present evidence. The paragraph from which
the phrase was extracted states:

15

Endlich_has not cited any record evidence to
support his assertion that Yellow regarded him
as being substantially limited in the major life
activities of reaching, throwing, lhfting or
driving. Neither does he offer any record
evidence in support of his position that Yellow
regarded him as substantially limited in the
major life activity of working. The only record
citation he provides is for the fact that Endlich
won his contested workers’ compensation
hearings. That information simply does not
provide any support for his claim that Yellow
regarded him as substantially limited in the
major life activity of working.” (Emphasis
added)

Endlich, supra, at *3.

At page 19 of her brief, Petitioner states: “[A]t least
one court has held that driving could be considered a
major life activity in a certain area. Norris v. Allied-
Sysco Food Services, Inc., 948 F.Supp. 1418 (N.D. Cal.
1996) (“[A]t least in California, driving is a major life
activity.”)” That is a misstatement of the law. In
Norris, the court was not specifically requested to
determine whether driving is a major life activity, and
the court did not specifically make such a
determination or holding. The Norris Court was
addressing a motion for judgment as a matter of law,
after a verdict for the employee. The Norris Court
stated, at page 1434: “In this case, the jury easily could
have concluded from the evidence that Norris had a
back injury which substantially limited her ability to
perform the major life activity of lifting.” The Norris
Court went on to state, in footnote 13, at page 1434:

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The jury also could have concluded that Norris’
back injury substantially limited her ability to
drive, and a jury could have reasonably felt
that, at least in California, driving is a major
life activity.*

Petitioner seeks to elevate driving, in and of itself,
to the status of a major life activity instead of treating
the inability to drive in the manner in which all other
courts have done— as one factor to be considered, in
conjunction with other evidence, as to whether a
person is substantially limited in the major life
activities of caring for oneself or working or performing
manual tasks. Petitioner has failed to cite any
decision of any court which has expressly held that
driving, in and of itself, is a major life activity under
the ADA. There is no conflict between the Tenth
Circuit’s decision in this matter and that of any other
court of appeals.

* In the Tenth Circuit, the question of whether driving is a major
life activity would never have been determined by a jury. In Be:ry
v T-Mobile USA, Inc., 490 F.3d 1211 (10" Cir. 2007) the Court
stated:

Whether the Plaintiff has an impairment within the
meaning of the ADA and whether the conduct affected is
a major life activity for purposes of the ADA are questions
of law for the Court to decide. Ascertaining whether the
impairment substantially limits the major life activity is
a guestion of fact for the jury, although a court is not
precluded from deciding the issue on a motion for
summary judgment.

17

II. The Tenth Circuit’s decision is consistent
with this Court’s opinion in Toyota Motor
Mfg., Ky., Inc. v. Williams.

Petitioner asserts the Tenth Circuit’s decision that
driving is not a major life activity under the ADA, is
inconsistent with this Court’s decision in Toyota Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184 (2002) because the
Tenth Circuit did not engage in an analvsis of whether
driving was of central importance to daily life.
Petitioner then argues, at page 25 of her brief, that
this Court should adopt a blanket rule that “driving is
a major life activity in rural areas’”—a rule which would
eliminate the necessity of engaging in an analysis of
whether driving is of central importance to daily life.

Contrary to Petitioner’s assertions, the Tenth
Circuit did engage in an analysis of whether driving
was of central importance to daily life. The Court
stated, at page 1125:

It cannot be disputed that driving is an
extremely 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., 443 F.3d 762, 767 (10™ Cir.
2006) (internal quotation marks omitted).”

And again, at pages 1125-26, when the Tenth
Circuit stated:

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Moreover, the importance of 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.

The Tenth Circuit recognized that to conclude that
driving, in and of itself, was a major life activity, would
short circuit the analysis (required by Joyota) of
whether one of those major life activities had-been
substantially limited. It also recognized that such a
rule would allow a claimant to bypass having to prove
substantial limitations in these major life activities by
providing only evidence that a person cannot drive.

The blanket rule sought by Petitioner that driving
is a major life activity in rural areas would be
inconsistent with a Toyota analysis. In Toyota, this
Court recognized that “the determination of whether
an individual is substantially limited in a major life
activity must be made on a case-by-case basis.” A
blanket rule that driving is a major life activity for
persons who live in Wyoming or rural areas would be
inconsistent with the “case-by-case analysis of the
impact” required by Toyota. Such a rule would also
create confusion (and litigation) as to which states or
areas are “rural” so as to have the
advantage/disadvantage of the reduced burden of
proof. There would also be confusion (and litigation)
as to whether the blanket rule that Petitioner seeks
applies when a state/area has both metropolitan
components with public transportation (such as
Cheyenne, Wyoming, or New York City) as well as

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rural areas with no public transportation (such as
Worland, Wyoming, and Upstate New York).

Finally, Petitioner has presented no cogent
authority for applying the ADA differently depending
on the geographic area. ADA is a federal law that is
not defined, restricted or enhanced by geographic
location. Treating the inability to drive in the manner
described by the Tenth Circuit in its decision (and as
it historically has been done)—as evidence which can,
on a case-by-case basis, be considered in determining
whether a person is substantially impacted relative to
caring for oneself, performing manual tasks, or
working-- avoids these issues and more, and is
consistent with existing law.

lI. The Tenth Circuit’s opinion is consistent
with the law in effect at the time of the
alleged discrimination against Petitioner
and is consistent with the newly adopted,
thougk not applicable, ADA Amendments
of 2008.

Petitioner’s claim arose in 2005. The law in effect
at that time, and applied to her claim, was the
Americans with Disabilities Act of 1990. The
Americans with Disabilities Act as Amended by the
ADA Amendments Act of 2008 became effective on
January 1, 2009. Petitioner, at pages 26 through 31 of
her brief, argues this new law should/would be
applicable to this matter. Such a proposition violates
Section 9 of the United States Constitution, which
provides “. . .no ex post facto Law shall be passed.”

Even if those provisions were applicable, it should
be noted that Congress had an opportunity, and, in

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fact, did adopt and expand the list of major life
activities to correct situations where it felt the courts
had not properly construed the law in accordance with
Congress’ intent. See ADA Amendments Act of 2008,
Pub.L.No. 110-325, Sept. 25, 2008, Section 2
(a)(3),(4),(5),(6),(7), and (8); (b)(2),(3),(4), and (5).
Congress specifically adopted a statutory definition of
major life activities, and added specific provisions
concerning major bodily functions. 42 U.S.C.
12102(2)(A),(B). It did not add “driving to the list of
major life activities, although it could have, if that was
what was intended.

The fact Congress did not add “driving” to the list
of major life activities means the inability to drive
continues to be treated in the manner in which it has
historically been treated, which is the manner
described by the Tenth Circuit, t.e., as evidence which
can, on a case-by-case basis, be considered in
determining whether a person is_ substantially
impacted relative to caring for oneself, performing
manual tasks, or working. That was the law in effect
at the time Kellogg’s claim arose, and the decision of
the Tenth Circuit Court of Appeals is consistent with
that law.

CONCLUSION

The decision of the Tenth Circuit Court of Appeals
does not conflict with a decision of this Court or the
decision of any United States court of appeals. The
Tenth Circuit’s decision does not implicate an
important question of federal law that has not been,
but should be, settled by this Court. The Tenth
Circuit’s decision does not implicate an important
federal question in a way that conflicts with relevant

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decisions of this Court. Petitioner has not carried her
burden of demonstrating any compelling reasons for
the Petition to be granted as required by Supreme
Court Rule 10.

Therefore, Respondent respectfully requests the
Petition be denied.

Respectfully submitted,

Catherine MacPherson, Of Counsel
Counsel of Record

Thomas A. Thompson

MacPherson, Kelly & Thompson, LLC

616 West Buffalo Street

Box 999

Rawlins, WY 82301

Ph: 307-324-2713

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0159%3A2. Public record. Not legal advice.