# Opposition Brief — Martin v. Barnesville Exempted Village School District Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1547%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2000 - **Citation:** 531 U.S. 992 ## Text (3) FILED. No. 00-384 IN THE Supreme Court of the Anited States DENNIS L. MARTIN, Petitioner, Vv. BARNESVILLE EXEMPTED VILLIAGE SCHOOL DISTRICT BOARD OF EDUCATION, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI JOHN C. ALBERT, ESQ. (0024164) Counsel of Record CRABBE, BROWN, JONES, POTTS & SCHMIDT 500 S. Front Street/Suite 1200 Columbus, Ohio 43215 (614) 229-4528 Counsel for Respondent Wright Appellate Services 1005 (215) 733-9870 @ (800) 507-9020 @ Fax (215) 733-9872 QUESTIONS PRESENTED SHOULD THE PETITIONER BE PERMITTED TO RAISE ISSUES FOR THE FIRST TIME BY WAY OF HIS PETITION FOR WRIT OF CERTIORARI, WITHOUT SAID ARGUMENTS HAVING BEEN RAISED IN EITHER COURT BELOW? SHOULD THIS COURT GRANT A WRIT OF CERTIORARI TO REVIEW QUESTIONS FOR WHICH THERE IS NO CONTROVERSY OR CONFLICT AMONG THE CIRCUITS, BUT RATHER ARE A MATTER OF EXPRESSED STATUTORY LANGUAGE? ii TABLE OF CONTENTS Page QUESTIONS PRESENTED .........:--s+ssssessessssssssensnssnnsnnennennsees i TABLE OF CONTENTS ........:scsesssessssessescessseeeseneennsennesenennees li TABLE OF AUTHORITIES ........:.-secssesssseeseeesennenensenesnnsenses v COUNTER STATEMENT OF THE CASE.........:s:sssse+eeeeeeres l STATEMENT OF FACTS. ......:cccscessessssesssesseesensesnnssnanensnnsess 2 ARGUMENTS IN OPPOSITION TO THE GRANTING OF CERTIORARI ......::.c:csssssssesssesseesscesesnensssseceeensensennessnsneees 7 1. PETITIONER MARTIN SHOULD NOT BE PERMITTED TO RAISE CERTAIN ISSUES FOR THE FIRST TIME BY WAY OF HIS PETITION FOR WRIT OF CERTIORARI. See, Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct 2196, 141 L.Ed.2d 540 (1998). ..ceccssscsssssssesesseseenenesssnsscneensnsaseneneensnsensnesess 9 2. CONTRARY TO PETITIONER'S ASSERTION, APPLICATION OF THIS COURT'S DECISION IN REEVES V. SANDERSON PLUMBING PROD- UCTS, INC., TO THE INSTANT CASE, DOES NOT MANDATE A JURY TRIAL BASED ON THE EVIDENCE PRODUCED...........ccssseseseseeeenees 10 iii A. The Rehabilitation Certificate does not sup- port Martin's Claim. .....s-ssssessssseeerssseseeresereee 12 = Neither Court below “raised the burden of proof” required by a plaintiff. .........-.-se+eesee+ 15 3. PETITIONER’S ARGUMENT THAT THE TERM ‘REGARDED AS’ SHOULD BE CONSTRUED TO ALLOW ALCOHOLISM AS A PER SE DIS- ABILITY IS A MISREADING AND MISUN- DERSTANDING OF THE STATUTE AND AGENCY REGULATIONS - NOT AMBIGUITY OR CONFLICT REQUIRING THIS COURT'S ATTENTION. ......:ocosczsosesenssssncsssosenencenensensnssnconsoee® 16 A. Petitioner's reading of the law and accom- 4. CONTRARY TO PETITIONER'S ASSERTION, THERE IS NO CONFLICT AMONG THE CIR- CUIT COURTS AS TO WHETHER OR NOT AL- COHOLISM IS A PER SE DISABILITY.........--+--+ 18 iv A. The “impairment” of alcoholism is not a per se “disability” under the ADA. ..............++0++ 19 B. Petitioner Martin's reliance upon the Eighth Circuit decision in Miners v. Cargill Com- munications, Inc., is misplaced and in fact contradicts his OWN arguMEnts. ...........10+ 23 1. Petitioner’s cite to Miners v. Cargill Communications, Inc., is not appro- PTIALE. ........ececececenenencsenenenenensenenenensees 23 2. Petitioner Martin’s arguments with respect to the “misconduct excep- tion” do not present a circuit conflict or need for clarification by this Court. The decisions of the lower courts were entirely proper and do not warrant review or clarification by this Court. .....0..coc.ccsccscecsscsserceersesseeses 25 CONCLUSION .......-:sesseeseereees cRuinoadegscebpstapaalinasetancsevtinsneseit 30 Vv TABLE OF AUTHORITIES Cases Bilodeau v. Mega Industries, 50 F.Supp.24 27, 38 (D. Me. SOO C18 Cie) snzscssensccovaepcanncgynnonersceponsngensnnosonennne 20 Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) .......scecscessserssrsseesenseeceenssresnnenees 2 17,29 Buckley v. Consolidated Edison Co. v. New York, 127 F.3d 270 (2 Cir. 1997)...cccccccsssessssssssesssssessseecescenesnsnnsnsnscnscesses 19 Burch v. Coca-Cola Co., 119 F.3d 305, 316-17 (5™ Cir. POT eee ow sevsscesunomppogerovenpeeszevscceerunneenere 21, 22 Byrne v. Board of Education, 979 F.2d 560, 567 (7 Cir. TN re oa saectonencdenannevenneneoosenennnnnseccsnapregapeve 22 Deas v. River West, L.P., 152 F.3d 471 (5" Cir. 1998)........22 Forrisi v. Bowen, 794 F.2d 931 (4™ Cir. 1986) ......--ssssssseeees 21 Francis v. City of Meriden, 129 F.3d 281 (2™ Cir. 1997) ....21 Kelly v. Drexel Univ., 94 F.3d 102 (3™ Cir. 1996) ...---ssss 21 Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 (6" Cir. 1996).......scscssssssssssesesesenesensnsncssscnsncscseessnsnensansssssnsensess 22 Maddox v. Univ. of Tenn., 62 F.3d 843 (6" Cir. 1995).......2, 6 Miners v. Cargill Communications, Inc., 113 F.3d 820 (s™ Cir. 1997).....csssccssossecsercereecssecensesenees 7, 8, 19, 23, 24, 25, 26 Nielsen v. Moroni Feed Co., 162 F.3d 604 (10" Cir. 1998).22 vi Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices, 95 F.3d 1102 (Fed. Cir. 1 996) «-vev SORE MRD rip satecere bes mene one uuieE EAS a 2 COUNTER STATEMENT OF THE CASE The United States District Court for the Southern District of Ohio correctly determined that: Plaintiff must [show] that the ‘record of? impair- ment, or the impairment that he is ‘regarded as’ having, is one that substantially limits a major life activity. *** Plaintiff did not allege in his com- plaint, nor has he argued or demonstrated in re- sponse to Defendants Motion, that the LCA establishes that he is substantially limited in a ma- jor life activity, or that Defendant regarded him as having an impairment that substantially limits a major life activity. R.30 Order Granting Summary Judgment, p. 9 (Emphasis theirs). The trial court essentially found that Martin must prove that the alleged “record of” impairment or the “perceived” impairment is one that substantially limits a major life activ- ity, (or is perceived as being so limiting) and that Martin en- tirely failed to put forth an argument and establish this burden. While not disagreeing with the trial court’s reasoning, the Sixth Circuit Court of Appeals affirmed the decision of the district court on a different ground. Instead of deciding the case based upon the fatal errors in Martin’s prima facie case (i.e., failing to produce evidence of a perception of alcohol- ism and failure to even allege a perceived substantial limitation), the court of appeals took a more rigid stance and 2 declared the case law of Maddox v. Univ. of Tenn., 62 F.3d 843 (6" Cir. 1995), controlling, holding that Martin’s own misconduct (rather than the unproven perception of al- coholism) was a legitimate and non-discriminatory reason for his denial of the school bus driver position. STATEMENT OF FACTS Barnesville Exempted Village School District BOE (herein after “Barnesville”), in accordance with S.Ct.R. 15 (2) with respect to the content of a Brief in Opposition, wishes to draw this Court’s attention to the misstatements and omissions of Petitioner Dennis L. Martin (hereinafter “Martin”) that are directly relevant to issues presented herein. First, the Petition submitted by Martin is replete with mis- characterizations, understatements, and overstatements as to the facts and law in this case. The Petition also exhibits a fundamental misunderstanding with respect to the law and interpretations of law surrounding the “record of” and “regarded as” prongs of the ADA’s prima facie showing for a disability. There are many fatal flaws - most of which defy common sense interpretation of the language of the statute and the regulations or interpretive guidelines on the subject. Many of these misunderstandings are addressed specifically in the Law and Argument portion of this brief, as necessary 3 Second, as the Court may well have already discerned, this case involves an incident of misconduct in 1991 whereby Petitioner Martin was caught drinking on his job as a custodian at an elementary high school. Three years later Martin applied for a bus driver position within the school district. Martin was denied the bus driver position because of his 1991 misconduct, and because the school officials (with- out any knowledge or perceptions of any alcoholism on the part of Martin) could simply not take the that Martin would attempt to engage in similar misconduct while holding the bus driver position. With respect to the detailed facts as set forth by Martin, there are several key omissions. While Martin admits to having been “discovered” drinking beer while on his job asa custodian at an elementary high school in 1991, Martin fails to discuss the relevant circumstances surrounding the inci- dent, Martin was caught by Robert Miller, President of Bar- nesville’s Board of Education. Once caught, Martin RAN from Board President Miller, HID, and attempted to throw away the remaining six pack of beer. When confronted, Martin LIED about the fact that he had any beer on premises, and DENIED that Board President Miller had seen what he claimed. It was only AFTER the other cans of beer were dis- covered that Martin admitted bringing the beer to the ele- mentary school. When questioned further, after the extra beer was found, Martin walked off the job leaving the ele- mentary school building otherwise unattended. The Super- intendent at the time, David Wilson, recommended that Plaintiff be terminated for reasons of: * consuming alcohol at work * leaving his work incomplete. 4 ¢ leaving the building without adequate employee coverage and ¢ for conduct in direct violation of the Defen- dant’s “drug free work place” policy, constitut- ing misfeasance and nonfeasance of duty Thus, Martin was not disciplined because he was per- ceived to have an impairment that substantially limited any major life activities, or because he was perceived as an alco- holic. Martin was disciplined because he violated Barnesville rules, lied, and walked off the job. Ultimately, because it was around Christmas time, Board President Miller decided to give Martin a last chance, and the parties entered into a last chance agreement (hereinafter “LCA”). In this agreement, Martin accepted a suspension from employment without pay, waived procedural irregularities, stated that he had a drinking problem, and agreed to enter an alcohol rehabilitation pro- gram. It must be noted that Board President, Mr. Miller, specifi- cally testified that he had no idea whether or not Mr. Martin had a drinking problem, but indicated he would let the pro- fessionals determine that at an alcohol rehabilitation pro- gram, and that Martin would be none the worse by completing same. (R.13 Deposition of Miller, pp 53-54). Martin did enter and complete the alcohol program, and upon doing so returned to his custodial position. Martin testi- fied in his deposition that during the alcohol rehabilitation program, he still did not believe he needed the treatment, and after it was completed, also felt he did not need the treat- ment. (R11 Motion for Summary Judgment, exhibit 1, Depo- sition of Martin, pp.51-53). Martin never followed up with any other type of rehabilitation treatment after he completed the program. (R11 Motion for Summary Judgment, as ex- hibit 1, Deposition of Martin, p.55). In December of 1994, a bus garage worker position and a bus driver position were posted. Martin bid for, and was de- nied these positions pursuant to the “safety concern” clause of the bargaining agreement. Martin grieved these decisions, and the matter was appealed to State Court. The Belmont County Court of Common Pleas upheld the actions of Bar- nesville, as a matter of “safety” and not “seniority.” Thus, from July 2, 1996 until October 15, 1997, Barnesville was under that court’s decision that Martin was not entitled to the positions. While the State Court appeal was pending, Martin filed charges of disability discrimination with the Ohio Civil Rights Commission in November 1996. In early 1998, Mar- tin was awarded the December 1994 positions of bus garage worker and bus mechanic pursuant to the finality of the Sev- enth District Court of Appeals decision dated October 15, 1997. Petitioner Martin instituted this action in September of 1997 claiming disability discrimination with regard to the denied positions. Barnesville filed a Motion for Summary Judgment which set forth numerous issues upon which summary judgment could properly have been granted. (R. 11 Motion for Summary Judgment). Martin argued, and contin- ues to argue, that he signed the last chance agreement, stated therein that he had “a drinking problem,” and therefore has “a record of” and is “perceived as” an alcoholic. As the trial court correctly found, Martin failed to allege, argue or dem- i th aA ie We SR he was perceived as being substantially limited by that im- pairment, and/or failed to identify major life activities that 6 were so limited. (R.30 Order Granting Motion for Summary Judgment, pp.8-9). Martin did not rebut the testi- mony of witnesses who clearly stated that they did not know if Martin was an alcoholic, but merely that they did not want - to take the chance that he would engage in similar acts of misconduct while driving a school bus. (R. 11 Motion for Summary Judgment, p.9, citing, exhibits 2- Lucas affidavit, 3- Wilson affidavit, 4- Rinehart affidavit, and 5- Miller affi- davit). Martin did not address the arguments advanced by Barnesville regarding the applicable McDonnell- Douglas/Burdine burden shifting analysis. (R. 14 Response to Motion for Summary Judgment). Martin also did not ad- dress Barnesville’s argument under the law of Maddox v Univ. of Tennessee, 62 F.3d 843 (6" Cir. 1995), that Bar- nesville did properly distinguish between Martin’s miscon- duct and the alleged perceived “disability.” Martin entirely skipped his proof on these issues. (R. 14 Response to Motion for Summary Judgment). Martin simply alleged perceived alcoholism and therefore disability. Martin now advances theories of (1) an erroneous appli- cation of the “regarded as” inquiry; (2) several novel theories of recOvery, not raised in either court below (heightened standard for a plaintiff under a burden shifting analysis and “regarded as” equals “per se disability”) ; and (3) an alleged conflict among the circuits with respect to the disability per se argument as it relates to “perceived” alcoholism. All this, while failing to produce evidence from which a reasonably jury could find that Martin was even “perceived as” an alco- holic; failing to even address below that Martin was “per- ceived as” being substantially limited in a major life activity; 7 and failing to identify a major life activity perceived to be In short, Martin asks this Court to make numerous suc- cessive leaps in logic and inference, all of which are contrary to express statutory language, agency interpretive regulations and guidelines, and stated Congressional intent. Martin has skipped the proof on many issues, not the least of which is a prima facie showing of disability, and now asks this Court to declare him disabled despite his own default. ARGUMENTS IN OPPOSITION TO THE GRANTING OF CERTIORARI This Court should properly deny the Petition for Writ of Certiorari submitted by Petitioner Dennis L. Martin, as it fails to present issues in conflict among the circuit courts, fails to set forth genuine issues in need of clarification by this Court with respect to important federal questions, and for reason that Petitioner Martin failed to raise many of these issues in either court below. Specifically, Petitioner Martin suggests that there are con- flicts (1) between the circuit courts as to whether or not alco- holism is a per se disability under the ADA and (2) between Justice Department and EEOC regulations which define “te- garded as having such an impairment.” With respect to a conflict among the circuit courts as to alcoholism as a per se disability, no such conflict exists, and the cases cited infra., in Argument No. 3, Section A, indicate as much. Petitioner’s citation to Miners v. Cargill Communications, Inc., 113 F.3d 820 (8" Cir. 1997), as in conflict with the Sixth Circuit deci- sion herein below is erroneous. With respect to conflict among agency regulations, Petitioner Martin misreads and/or 8 misunderstands the express language of both statute and regulation, thereby creating a false conflict, when in fact, it is only Martin who perceives conflict - not the circuits. Review of Appendices B and C indicate a plain misreading by Mar- tin. Additionally, Petitioner Martin assigns errors with re- spect to the Sixth Circuit Court’s ruling against him based on his own misconduct. This is the first time Martin has even responded to Respondent Barnesville’s arguments with re- spect to misconduct. Martin wholly failed to address this area in either_his Memorandum Contra Motion for Summary Judgment, his Sixth Circuit Appellate Brief or his Sixth Cir- cuit Reply Brief. Nonetheless, the “misconduct exception” as it is termed, does not raise a plaintiff's burden of proof when raised by an employer, nor does it create a non-rebuttable non-discriminatory explanation for employer action. Ironi- cally, it is Petitioner’s own citation to Miners v. Cargill Communications, Inc., supra., out of the Eighth Circuit which illustrates the fallacies in Martin’s argument with re- spect to burden of proof in misconduct cases. Finally, Martin assigns as error, the lower courts’ application of this Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000). Ironically, not only did the lower courts correctly apply the Reeves analysis, but Martin’s own citation to Miners v. Cargill Communications, Inc., supra., illustrates how this is so. No further explanation is necessary from this Court regarding the issue of burden shifting and rebuttals of proffered employer explanations there being no departure from the Reeves, supra, standard. Ultimately, Petitioner Martin has asserted arguments for which no conflict exists or no clarification is necessary from this Honorable Court. Petitioner Martin’s own misreading or misunderstanding of express statutory and regulatory lan- 9 guage does not represent conflict or confusion among the circuits (or the Sixth Circuit) so as to create a necessity for this Court’s review. ARGUMENT NO. 1 Petitioner Martin Should Not Be Permitted To Raise Certain Issues For The First Time By Way Of His Peti- tion For Writ Of Certiorari. Bragdon V. Abbott, 524 U.S. 624, 118 S.Ct 2196, 141 L.Ed.2d 540 (1998). Petitioner Martin advances several arguments or theories upon which he contends this Court should rely to overturn the decision of the Sixth Circuit Court of Appeals - theories that were not raised in either court below and therefore are not properly before this Court. See, Bragdon v. Abbott, 524 US. 624, 118 S.Ct. 2196, 2205 (1998) (“It is our practice to decide cases on the grounds raised and considered in the Court of Appeals,...”). Specifically, Martin has alleged:- (1) Justice Department regulations for the Rehabilitation Act and the EEOC regulations (and interpretive guidelines) for the ADA are in conflict and that be- ‘. cause alcoholism is a per se disability under the Re- habilitation Act, the same must be true under the ADA. This argument was not advanced below and as such, Martin’s Petition for Writ of Certiorari should properly be denied; (2) Applying the “misconduct exception” to disability discrimination, without a time limitation, would give an unrebuttable non-discriminatory reason for the employer’s adverse action. It is interesting that Mar- tin now seeks to challenge the Sixth Circuit’s ruling 10 tin now seeks to challenge the Sixth Circuit’s ruling with respect to his “misconduct” and proof a “mis- conduct exception,” when he entirely failed to ad- | dress the issue in either his Memorandum Contra Motion for Summary Judgment, Sixth Circuit Ap- pellate Brief or Sixth Circuit Reply Brief. It is also interesting that Martin relies on the McDonnell Douglas - Burdine burden shifting analysis, when Martin’s lower court motions and briefs entirely avoided this argument. Martin presented no argument to rebut the legitimate explanation of Barnesville’s action. (3) “As applied, the misconduct exception is against the intent of Congress because Congress supplied a similar the (sic) misconduct exception in 42 U.S.C. 12114(A) concerning drug uses, Congress further limited the use of such exception concerning drug uses, while the Sixth Circuit has not limited the similar judge made rule as to alcoholics.”(Pet.p.25). Martin should not properly be permitted to raise these is- sues without having raised them in either court below. ARGUMENT NO. 2 Contrary To Petitioner’s Assertion, Application Of This Court’s Decision In Reeves V. Sanderson To The Instant Case, Does Not Mandate A Jury Trial Based On The Evidence Produced. Petitioner Martin argues that the courts below failed to properly apply this Court’s decision in Reeves v. Sanderson r Plumbing Products, Inc., 120 S.Ct. 2097, 2109 (2000), and 11 particularly the analysis for burden shifting and inferences of discrimination presented to rebut an employer’s legitimate non-discriminatory reasons for its action. Specifically Martin mistakenly claims: (1) he offered conflicting testimony of pretext so as to warrant submission of the issue to a jury; and (2) the District Court erred by requiring him to present “sig- nificant probative evidence” of pretext, and that in doing so the court made an improper determination of the persuasive nature of the evidence he presented. This, Martin argues, heightened the burden of a plaintiff attempting to prove pre- text. These arguments are without legal and factual merit, and do not create a significant question for this Court’s re- view. In Reeves, supra., this Court determined that, among other things: Certainly there will be instances where, although plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational fact finder could conclude that the action was discriminatory. Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plain- tiffs prima facie case, the probative value of the proof that the employer’s explanation -is false, and any other evidence that supports the em- ployer’s case and that properly may be consid- ered on a motion for summary judgment. Reeves, 120 S.Ct. at 2108. (Emphasis added). 12 {I]f the record conclusively revealed some other, non-discriminatory reason for the employer’s deci- sion or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was un- true and there was abundant and uncontroverted independent evidence that “no discrimination had occurred,” an employer would be entitled to judg- ment as a matter of law. Reeves, 120 S.Ct. at 2109. (Emphasis added). A brief review of the evidence demonstrates that the case at bar is precisely the instance anticipated by the above quote. Further, Peti- tioner Martin’s failure to apply the entire decision and import of Reeves does not make this an issue which must be clari- fied by this Court. Martin essentially argues that he presented the LCA and rehabilitation certificate as proof of the “record of” his dis- ability, and of Barnesville’s pretext (i.e., that they perceived him as being an alcoholic rather than being concerned for school children’s safety). Martin contends this evidence re- buts Barnesville’s proffered concerns for the safety of its students. Review of the facts here reveal that Martin’s evi- dence is veak, does not prove or even lend inference to dis- criminatory intent on the part of Barnesville, and could not properly have led a rational fact finder to conclude there was discrimination. A. The Rehabilitation Certificate does not support Martin’s claim. First, the rehabilitation certificate is only proof that Martin attended a program. No diagnosis was made of (and the mere 13 certificate certainly does not reflect) alcoholism. No diagno- sis was made of (and the mere certificate certainly does not reflect) a substantial limitation of any major life activity, nor does it show a record or perception of such. B. The Last Chance Agreement does not support Martin’s claim. Martin relies on the LCA as proof that he was per- ceived as an alcoholic. Martin alleges that “a drinking prob- lem” equals alcoholism, and then automatically assumes “disability.” That is not a proper showing under the ADA, and the district court correctly concluded such. Martin did not produce evidence that Barnesville’s board members or employees considered the LCA terminology “a drinking problem” the equivalent of alcoholism, or of a substantially limiting impairment as to any major life activity. The mere words “drinking problem” do not necessarily equate to alcoholism or disability. In fact, as used by these parties, “a drinking problem” was meant to convey insubor- dination, misconduct, and a mistake by Martin involving the use of alcohol while on the job, an offense for which Martin should properly have been terminated. When specifically questioned on the use of the terminology, “drinking prob- lem,” Board President Robert Miller explained that he did not know if Martin was an alcoholic or if he just exercised poor judgment on that occasion. (See Deposition of Robert Miller [excerpts], attached hereto as Appendix A). Appellant Martin at no time presented evidence to address or rebut this testimony. However, Martin does acknowledge that he only signed the LCA to keep his job, not to admit any rf 14 type of alcoholism. (R.11 Motion for Summary Judgment, exhibit 1- Martin deposition, p. 51). Further, no evidence was proffered by Martin that tended to prove an improper motive on the part of Barnesville - and how could it, as Barnesville is charged with the education and safety of the children within the school district, from the time they catch the morning school bus uitil the time they are dropped off the bus at days’ end. Martin overstates and misunderstands what this Court’s decision in Reeves requires of the parties, and what the court below was looking for - namely relevant probative evidence, tending to prove or dis- prove Barnesvilie’s explanation - not merely bald assertions. Petitioner Martin did not address the above testimony or the fact that none of the four (4) witnesses who testified con- sidered him to be an alcoholic. Applying Reeves, supra., these four (4) witnesses, plus the ultimate function and duty of Barnesville with respect to the education and care of the children on its buses, was abundant, independent evidence which supported Barnesville’s explanation for denying Mar- tin the bus driving position. The district court did properly apply the Reeves standard for burden shifting, and Martin’s mere disagreement or failure to recognize the difference does not warrant this Court’s intervention or clarification. Ultimately, what Martin refuses to understand, is that he failed to make the required prima facie showing. Martin failed to produce any evidence that he was perceived as an alcoholic. Assuming arguendo that he did make such proof, Martin entirely failed to allege, argue and/or produce evi- dence that he was perceived as being substantially limited in a major life activity. Martin also failed to identify said major 15 _ life activity. According to this Court's decision in Reeves, supra., Martin did not pass the first hurdle of bringing such an action. C. Neither Court below “raised the burden of proof” aquired by a plaintiff. Specifically, Martin claims that the District Court erred by requiring “significant probative evidence” to avoid summary judgment. The requirement of “significant probative evi- dence” did not create a new standard of proof for plaintiffs, but rather was a restatement that proffered evidence should be relevant, i.e., having the tendency to make the existence of any fact that is of consequence to the deter-nination of the action more or less probable, than without the evidence. F.R.E. 401. It stands to reason that evidencc being offered to prove a pretext, must do so, not merely raise collateral is- sues. Martin’s evidence did not “tend to prove or disprove” any facts of consequence in this matter. The district court was-not presented with evidence that created a conflict or genuine issue as to the truth or falsity of Barnesville’s expla- nation for its denial of the school bus position to Martin. Martin’s proffered evidence did not prove (or lend inference to) pretext or falsity on the part of Barnesvilie with regard to their actions or motivations. The semantics between “proba- tive evidence” and “significant probative evidence” in no way assists Martin, because lack of evidence does not change: no proof of perceived alcoholism, no proof of per- ceived substantial limitation, and no proof that Barnesville’s concems for children’s safety were false. 16 ARGUMENT NO. 3 Petitioner’s Argument That The Term ‘Regarded As’ Should Be Construed To Allow Alcoholism As A Per Se Disability Is A Misreading And Misunderstanding Of The Statute And Agency Regulations Not Ambiguity Or Conflict Requiring This Court’s Attention. Petitioner’s Argument No.2 illustrates a misunderstanding of the prima facie elements of a claim under the Americans With Disabilities Act, not ambiguity or a conflict. Peti- tioner’s argument serves only to cloud the true issue and, coincidentally, the fatal error in Petitioner’s case, namely that he failed to allege and/or argue or produce any evi- dence that Petitioner was “perceived as” having an impair- ment (alcoholism) and that he was “perceived as” being substantially limited in a major life activity from said alco- holism. A. Petitioner’s reading of the law and accompanying regulations is erroneous, and exhibits a fundamen- tal misunderstanding of proof required for claims of a “perceived” disability. Petitioner advances a convoluted argument with respect to the required showing under a “regarded as” claim under the ADA. Specifically Martin claims that he has: [The] impossible task of proving a negative. That is, if the Petitioner does not have a substantial limitation at all, how is it possible to prove that it actually limits a major life activity? In other words, no evidence can exist showing an employee is sub- stantially limited in a major life activity, if the em- 17 ployee never had an impairment in the first place. (Pet. p.23.) This is clearly a misunderstanding of what is required un- der a perceived disability claim. As set forth in Barnesville Argument 4A, infra., a plaintiff who claims to be regarded as disabled, must prove that he/she is perceived as being substantially limited in a major life activity as a result of a perceived impairment. This com- ports with the general premise of the ADA, that “The statute is not operative, and the definition [of disability] not satis- fied, unless the impairment affects a major life activity.” Bragdon v. Abbott, 118 S.Ct., 2196, 2204 (1998). There is no actual limitation requirement unless the plain- tiff is seeking to establish the claim as an actual disability (i.e., actual impairment with actual substantial limitations). This is not a difficult concept. If a plaintiff claims to be re- garded as disabled, they must prove that they are regarded as having an impairment and regarded as being substantially _limited in a major life activity - whether or not the perception is correct. Very simply, Petitioner Martin’s misunderstand- ing of the showing required (i.e, a perceived substantial limitation of a major life activity) is not shared among the circuits and is not sufficiently compelling or in need of clari- fication for this Court to address. B. Contrary to Petitioner’s assertion, there is no con- flict between agency regulations in this area. Petitioner Martin misrepresents to this Court, a conflict between Justice Department regulations (drafted for imple- mentation of the Rehabilitation Act) and EEOC regulations 18 (drafted for the ADA). Specifically, on page 20 of his Peti- tion, Martin alleges that the Justice Department regulations and definitions do not require the showing that an employee is perceived as being substantially limited in a major life ac- tivity. This is clearly erroneous. A quick reading of the Justice Department regulations, 28 C.F.R. 41.31(b)(4)(iii) (1999) (attached hereto as Appendix B) reveals that there most certainly is the required showing of perceived substantial limitation as to a major life activity. Martin’s characterization of different wording between this regulation and that set forth in the EEOC’s 29 C.F.R. '1630 (1)(3) (attached hereto as Appendix C) and 29 C.F.R. ‘1630 App.B '1630.2(1), infra., is misleading at best. Martin’s at- tempt to create a conflict worthy of this Court’s attention is improper. The Petition may properly be denied on this basis. ARGUMENT NO. 4 Contrary To Petitioner’s Assertion, There Is No Conflict Among The Circuits As To Whether Or Not Alcoholism Is A Per Se Disability. Martin’s Petition claims that circuits other than the Sixth Circuit have determined that alcoholism is a disability under the ADA. (Pet.p22). This assertion is misleading, because there is no distinction made between an “impairment” (i.e., the impairment of alcoholism) and a “disability” (defined as an “impairment that substantially limits one or more major life activities” or is perceived as being so limiting). Further, the cases cited in support of this proposition address other perspectives such as the Rehabilitation Act (Office of the Senate Sergeant at Arms v. Office of Senate Fair Employ- 19 ment Practices, 95 F.3d 1102 (Fed.Cir. 1996)), and the drug uses section of 42 U.S.C. 12114 (AX, v. Consolidated Edison Co. of New York, 127 F.3d 270 (2™ Cir. 1997)). Ad- ditionally, Martin’s cite to Miners v. Cargill Communica- tions, Inc., 113 F.3d 820 (8" Cir. 1997), is not appropriate and actually undercuts his own arguments. A. The “impairment” of alcoholism is not a per se “disability” under the ADA. The law is very clearly established by this Court and the circuits, that “The statute [ADA] is not operative, and the definition [of a disability] not satisfied, unless the impair- ment affects a major life activity.” See, Bragdon v. Abbott, 118 S.Ct. 2196, 2204 (1998). So too, is this true for per- ceived impairments, i.e., that a perception of substantial limitation in a major life activity be shown. This is properly so, in light of the expressed statutory language requiring this showing, the agency regulations and guidelines (with defini- tions) and available Congressional intent.' The Circuit ' As this Court well knows, in order to prevail on a claim under the Americans With Disabilities Act, Plaintiff must prove that: 1. The Plaintiff suffers from a “disability” as defined by the Act; 2. The Plaintiff was otherwise qualified for the em- ployment; and 3. The Plaintiff either was denied a reasonable accom- modation for his disability or was subject to an adverse employment decision that was made solely because of his disability. 20 Courts have articulated that alcoholism and perceived alco- holism are only “disabilities” within the meaning of the stat- ute if there is proof of a substantial limitation as to a major life activity, or a perception of such limitation, as evidenced by the following cases cited. See, Bilodeau v. Mega Indus- Roush v. Weastec, Inc., 96 F.3d 840, 843 (6" Cir. 1996). In order to be considered “disabled” as defined under the ADA, the Plaintiff must suffer from one of the following: 1. A physical or mental impairment that substantially limits one or more of the major life activities of such individual; 2. A record of such impairment; or 3. Being regarded as having such an impairment. 42 U.S.C. '12102(2). This determination comports with the appli- cable EEOC regulations, which state in relevant part: There are three ways in which an individual may satisfy the defi- nition of “being regarded as having a disability”: (1) _ The individual may have an impairment which is not substantially limiting but is perceived by the employer or other covered entity as constituting a substantially limiting impairment; (2) The individual may have an impairment which is only substantially limiting because of the atti- tudes of others toward the impairment; or (3) The individual may have no impairment at all but is regarded by the employer as having a sub- stantially limiting impairment. See, 29 C.F.R. '1630, App.B '1630.2(1). (Emphasis added). 21 tries, 50 F.Supp.2d 27, 38 (D. Me. 1999) (1* Cir.) (In the context of perceived alcoholism, ATo prevail under [29 C.F.R. 1630.3(1)(C)] Plaintiff must show that Defendant perceived her as disabled in the sense that she had an im- pairment that substantially limited a major life activity.”); Pace v. Paris Maintenance Company, et al., 107 F. Supp.2d 251 (S.D. N.Y. 2000) (2™ Cir.) (AAlcoholism is not a per se disability under the ADA..... “Pace must demonstrate that he was regarded as having an impairment [alcoholism] that sub- stantially limited a major life activity.”) and (“Thus, the comment must be construed as evidence that [employer] thought Pace had a drinking problem. Still, this evidence is not sufficient to demonstrate that [employer] perceived Pace’s impairment to be substantially limiting.” Pace, supra, at 261). See also, Francis v. City of Meriden, 129 F.3d 281, 284 (2 Cir. 1997) (“To be considered disabled under the “regarded as” prong of the statutes, therefore, a plaintiff must allege that the employer regarded the employee to be suffer- ing from an impairment within the meaning of the statutes, not just that the employer believed the employee to be some- how disabled.”); Kelly v. Drexel Univ., 94 F.3d 102, 109 (3 Cir. 1996)(“[W]e hold that the mere fact that an employer is aware of an employee's impairment is insufficient to demon- strate either that the employer regarded the employee as dis- abled or that that perception caused the adverse employment action.”); Forrisi v. Bowen, 794 F.2d 931, 935 (4™ Cir. 1986) (“The record demonstrates that the employer's perception accorded with these facts. Far from being regarded as having a “substantial limitation” in employability, Forrisi was seen as unsuited for one position in one plant--and nothing more.”); Burch v. Coca-Cola Co., 119 F.3d 305, 316-17 (Sth Cir. 1997) (Holding that alcoholism is not a per se disability 22 under the ADA and evidence that alcoholics, in general, are impaired is inadequate to show the substantial limitation of one or more major life activities), cert. denied, 522 US. 1084, 139 L. Ed. 2d 768, 118 S. Ct. 871 (1998); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 885 (6 Cir. 1996) (“Under that provision [29 C.F.R. '1630, App.B '1630.2(1)], a plaintiff must show that the perceived impair- ment is a substantial limitation on a major life activity.”). See also, Byrne v. Board of Education, 979 F.2d 560, 567 (7" Cir. 1992); Wallin v. Minnesota Dep't of Corrections, 153 F.3d 681, 686 n.4 (8th Cir. 1998) (citing, Burch, supra. and requiring that a plaintiff show impairment of a major life ac- tivity), cert. denied, 526 U.S. 1004, 119 S. Ct. 1141, 143 L. Ed. 2d 209 (1999); Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 (10th Cir. 1998) (“{I]n passing the ADA, Congress intended to protect individuals from employment discrimi- nation by employers on the basis of an actual or perceived disability, provided that the disability substantially limits or is perceived to limit substantially a major life activity.”); Wilson v. Int’l Bhd. of Teamsters, Chauffeurs and Ware- housemen, et al., 47 F.Supp.2d 8 (D.C. D.C. 1999) (“Alco- holism is not, however, a per se disability... “Wilson’s burden is thus to demonstrate that [the employer] regarded him as being substantially limited in a major life activity.’ ” citing, 29 C.F.R. 1630.2(j)(3); Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11° Cir. 1998). See also, Deas v. River West, L.P., 152 F.3d 471, 482 (5™ Cir. 1998 ) (finding no evidence from which a reasonable jury could infer that the employer regarded Deas as substantially limited in her abil- ity to work). 23 B. Petitioner Martin’s reliance upon the Eighth Cir- cuit decision in Miners v. Cargill Communications, Inc., is misplaced and in fact contradicts his own arguments. j Petitioner Martin cites to Miners v. Cargill Communica- tions, Inc., 113 F.3d 820 (8" Cir. 1997), for two proposi- tions: 1. Alcoholism is considered a “disability” un- der the ADA (Pet.p.22); and 2. An employer’s use of employee misconduct as a “misconduct exception” creates an un- rebuttable non-discriminatory explanation, which is too difficult for a plaintiff to over- come. (Pet.p.25). It is interesting that Martin should cite to Miners as sup- port when in fact Miners v. Cargill Communications, Inc. is factually dissimilar to Martin’s case, ultimately illustrates the fatal weaknesses in Martin’s proof, and actually disproves Martin’s own arguments with respect to an employer’s use of the “misconduct exception.” 1. Petitioner’s cite to Miners v. Cargill Communica- tions, Inc., is not appropriate. Petitioner’s cite to Miners, supra., is inappropriate be- cause the Eighth Circuit Court did not address the main issue raised herein, i.e., whether or not an employee must prove their employer perceived them to be substantially limited in ? As stated above, Petitioner Martin wholly failed to address the misconduct arguments set forth by Respondent Barnesville - IN EITHER COURT BELOW. This Court should properly deny Martin’s Petition for a Writ of Certiorari on this ground. 24 any major life activities, rather than simply being perceived as being an alcoholic. As the U.S. District Court for the S.D. Ohio correctly concluded below (and as schoed by the string cite of cases shown above), it is not enough to show per- ceived alcoholism. A plaintiff must also show that they are perceived as being substantially limited. Miners does not ad- dress this, and as such is not an appropriate citation for this inquiry. Additionally, Miners is factually dissimilar to the present case. In Miners, the plaintiff was a management employee of the defendant company. On one occasion the plaintiff in- formed her supervisor that she was late to work because she had been out late drinking the evening prior. The supervisor claimed to have been concerned over plaintiff's drinking and possible driving of a company vehicle, while intoxicated. The supervisor hired an investigator to follow the plaintiff after work. The investigator followed the plaintiff while driving her company vehicle to a local bar. Later that even- ing, the investigator observed the plaintiff exiting the bar. The investigator stopped her, identified himself as working for her employer, and took her keys. The investigator then drove off with the vehicle. The plaintiff was subsequently terminated for violating the company’s policy of driving company vehicles, while intoxicated. The plaintiff's employer explained that plaintiff was fired for her misconduct, ( i.e., driving a company vehicle while intoxicated). The Miners court concluded that plaintiff's presentation of evidence sufficiently rebutted the employer explanation for her termination by showing that: (1) the company knew of other managers who drove company vehi- 25 cles while intoxicated - and did not fire those employees; (2) the company did not actually inquire or investigate into whether or not plaintiff had actually been drinking alcohol at the bar; and (3) the company did not in fact have a written policy speaking to this issue. Obviousl:’, the plaintiff in Miners set forth more probative evidence, than did Martin in the instant case. Further, Min- ers’ proof spoke specifically to a possible pretext by her em- ployer, including different treatment for other employers. Martin offered no such probative evidence tending to dis- prove the basis for Barnesville’s decision or its motivations. As can be gleaned from the above analysis, Martin’s cite to Miners only serves to illustrate the weakness (or absence) of his proof in the face of other abundant independent evi- dence that supports Barnesville’s decisions and its motiva- tions. Reeves, supra., 120 S.Ct. at 2108. 2. Petitioner Martin’s arguments with respect to the “misconduct exception” do not present a circuit conflict or need for clarification by this Court. The decisions of the lower courts were entirely proper and do not warrant review or clarification by this Court. With respect to Martin’s argument that an employer might utilize the “misconduct exception” as it is being referred to, to implement discrimination against persons wrongly per- ceived as being alcoholics and that any such showing of mis- conduct by the employee would presumably insulate them 26 from liability, Miners clearly holds to the contrary.’ The Miners case clearly illustrates how such explanation is prop- erly rebutted by a plaintiff, so as to overcome summary judgment. A misconduct explanation, like all other explanations put forth by an employer, is subject to rebuttal by the plaintiff. If in fact an employer produces a misconduct explanation, both the misconduct and the explanation can be proven or dis- _ proved. This was precisely the case in Miners. The Miners plaintiff produced evidence that she had not broken a written company policy {vecause it did not exist); was treated differ- ently from other managers; and HAD NOT EVEN BEEN PROPERLY INVESTIGATED TO DETERMINE IF SHE HAD ACTUALLY ENGAGED IN THE CLAIMED MIS- CONDUCT. Query as to whether or not misconduct is a more difficult explanation to overcome when the plaintiff did, in fact en- gage in the misconduct for which he was accused and possi- * It is also worth noting that Martin makes this self serving argument, i.e., that an employer’s use of an employee’s own misconduct would be an unrebuttable, non-discriminatory explanation and that it would be too difficult to disprove or overcome in the burden shifting analysis - is ironic at best, considering that it is an employee’s own misconduct that is at issue. It is ironic that Martin seeks protection from em- ployers’ actions, ... the same employers who must ultimately be responsible for employee misconduct occurring in the course and scope of their duties. 27 bly fired? Perhaps so, but what is an employee doing, if not jeopardizing his job, when he knowingly undertakes miscon- duct? What consequences does he expect, when violating company policies? What does an employee expect when he brings alcohol to his job at an elementary school, opens and drinks it, and then runs, hides and lies about it when discov- ered? These are the legitimate and non-discriminatory rea- sons for disciplining an employee in the first place. Should that change merely because an employee’s misconduct may involve his or her own use of alcohol? The answer is quite clearly no. The reason for this is simple, an employee must properly prove his or her prima facie case to be protected by the ADA. Most relevant to this inquiry, is the element of perceived substantial limitation as to a major life activity. Withor this showing, an employee’s own misconduct is just that - and being disciplined for the same is not discrimina- tion. Nevertheless, when rebutting a misconduct explanation, it is simply incumbent upon the employee to prove that either he did not engage in the alleged misconduct, he was disci- plined differently than others or for some reason other than merely the misconduct, that the employer’s explanation is false in fact or in motive, and/or that the misconduct does not relate to the employer’s ultimate actions with respect to the employee. This is not a new or different standard. As actu- ally proven in Miners, a misconduct explanation is not “un- rebuttable” and there is no conflict or need for further clarification than that set forth in Reeves v. Sanderson., supra. 28 Furthermore, the above analysis may or may not involve an “impairment” or “disability” and may or may not involve the impairment of alcoholism. Misconduct of many kinds (which may or may not stem from an impairment or disabil- ity) would find an employee in trouble and subject to em- ployer action. If it was not significant misconduct or was not proven misconduct, then a plaintiff can more easily rebut the allegations as a pretext. If misconduct is proven, shown to be serious, in violation of policies, and with implications of safety and security, then a plaintiff will need to prove with relevant probative evidence why the proffer of a misconduct explanation (and or the employer’s motivation or intent) is false or a pretext for something else. This is not more diffi- cult because of a heightened standard of proof, but because such actions usually warrant employer intervention for pur- poses of preventing their own liability, if nothing else. In the instant case, the Sixth Circuit correctly concluded that: The ADA does not protect a plaintiff from his own bad judgment. The plaintiff cannot force defendant to hire him as a school bus driver when there is a serious risk that he may again drink on the job, have an accident and kill a group of school chil- dren. Any suggestion to the contrary is absurd. ... Therefore, even if we assume that plaintiff has es- tablished a prima facie case of discrimination, de- fendant has articulated a legitimate, non- discriminatory reason for its actions. Plaintiff has not demonstrated that this stated reason is a pretext for any unlawful discrimination. 29 (See Court of Appeals Opinion, contained in Petitioner’s Ap- pendix at page 8a). The Court below properly considered that Martin must produce, and in fact failed to produce, evidence of pretext upon which reasonable minds could find in his favor. 30 CONCLUSION For reasons that: Petitioner fails to raise issues of signifi- cant conflict or confusion among the circuits; failed to raise several issues in either court below; failed to understand and apply this Court’s decision in Reeves, supra; failed to make even a prima facie or baseline showing of perceived disabil- ity, and beca..se there is no conflict with respect to a court’s inquiry when faced with a claim for perceived alcoholism, this Court should not grant Petitioner’s request for a Writ of Certiorari as to the issues raised. Respectfully submitted, John C. Albert (0024164) Counsel of Record CRABBE, BROWN, JONES, POTTS & SCHMIDT Attorneys for Respondent 500 S. Front Street/Suite 1200 Columbus, Ohio 43215 Phone: (614) 229-4528 la APPENDIX A — DEPOSITION OF BARNESVILLE EXEMPTED VILLAGE SCHOOL DISTRICT BOE, BOARD PRESIDENT ROBERT MILLER (EXCERPTS) Deposition of Robert Miller (excerpts) By Mr. Lillard: Q. Now, it has on the first page paragraph titled No. 1, it says, “Employee Dennis Martin ad- mits that he has a problem with consumption of alcohol; he has a ‘drinking problem.” Do you know who drafted that terminology? A. Well basically the reason that sentence was in there was Denny Martin had denied that he ever drank that beer. It was my word against Denny’s. The board knew that. Chester [Kenny] had not been a witness to it. There had only been two people there. My integ- rity was on the line. Mr. Atkinson, I believe, still was on the board at the time, as well as part of the settlement wanted to know the truth. As part of the settlement, he requested through their attorneys that Mr. Martin admit that he was drinking that night. And ~ he did so. That’s why the sentence was there. It’s an admission that “Yes, 2a Appendix A Rob [Miller] was not lying that night. He did catch me drinking.” (R.13 Miller deposition, p.36). By Mr. Lillard Q. Okay. So what was the intent of that statement? A That was the gist of the statement, that he was drinking that night and has made a mistake in drinking. (R.13 Miller deposition, p.37). There is additional evidence that Barnesville (through its board members and employees) did not consider the LCA a finding of “alcoholism.” Again, Robert Miller explained: Q. All right. Now, it [the settlement agreement] indicates in order for him [Martin] to keep his job, he is required to go through a 28-day alcohol reha- bilitation program, does it not? A. Yes. Q. And that’s a pretty significant program is it not? : Mr. Albert: Objection. Go ahead. 3a Appendix A Well, our reasoning was this: That we don’t have the expertise to de- termine whether Mr. Martin has a problem, does not have a problem; whether it was just a one time shot and he screwed up. The board's po- sition was that he made a mistake. If the detox program, who has trained people, was able to help him if he did have a problem it would correct that situation. I[f] he didn’t have a problem, then he'd come out a better person. But it was our- We insisted that he had to attend this detox program for their determina- tion. Not only to help himself, but because we are not -do not have the expertise to determine whether he does have a drinking problem or does not have a drinking problem. So you didn’t know whether it was a one time incident, the first time he’s ever done it or- It's the only time I ever observed him drinking. - or whether he was a chronic alco- holic? 4a Appendix A A. I had no knowledge. (R. 13 Miller deposition, p.38). (Emphasis added). Sa APPENDIX B - 28 C.F.R. 41.31(b)(4)(iii) TITLE 28 - JUDICIAL ADMINISTRATION CHAPTER I - DEPARTMENT OF JUSTICE PART 41- IMPLEMENTATION OF EXECUTIVE ORDER 12250, NONDISCRIMINATION OF THE BASIS OF HANDICAP IN FEDERALLY ASSISTED PROGRAMS - Table of Contents Subpart B - Standards for Determining Who are Handicapped Persons Sec. 41.31 Handicapped person. (a) Handicapped person means any person who has a physical or mental impairment that sub- stantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. (b) As used in paragraph (a) of this section, the phrase: (1) Physical or mental impairment means: (i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affect- ing one or more of the following body systems: Neurological; musculoskeletal; special sense or- gans; respiratory, including speech organs; cardio 6a Appendix B vascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or (ii) Any mental or psychological disorder, such as mental retardation, organic brain syn- drome, emotional or mental illness, and specific learning disabilities. The term “physical or mental impairment” in- cludes, but is not limited to, such diseases and con- ditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism. (2) Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breath- ing, learning, and working. (3) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that sub- stantially limits one or more major life activities. (4) Is regarded as having an impairment means: Ta Appendix B (i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a recipient as constituting such a limitation; (ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such im- pairment; or (iii) Has none of the impairments defined in paragraph (b) (1) of this section but is treated by a recipient as having such an impairment. 8a APPENDIX C — 29 C.F.R. § 1630(1)(3) TITLE 29 - LABOR COMMISSION PART 1630 - REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE AMERI- CANS WITH DISABILITIES ACT - Table of Contents Sec. 1630.2 Definitions. (In relevant part) (I)Is regarded as having such an impairment means; (1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) Has a_ physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such im- pairment; or (3) Has none of the impairments defined in paragraph (h) (1) or (2) of this section but is treated by a covered entity as having a substantially limit- ing impairment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1547%3A2. Public record. Not legal advice.