                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                   November 29, 2006
                           FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                       Clerk of Court

    EQ U A L EM PLO Y ME N T
    O PPO RTU N ITY CO M M ISSIO N,

               Plaintiff-Appellant,

    v.                                                  No. 06-6074
                                                  (D.C. No. 04-CV -660-T)
    B URLING TO N N O RTH ER N AND                      (W .D. Okla.)
    SA N TA FE R AILWA Y C O MPANY,

               Defendant-Appellee.



                            OR D ER AND JUDGM ENT *


Before O ’B RIE N and BROR BY, Circuit Judges, and BRO W N, ** District Judge.


         The Equal Employment Opportunity Commission (EEOC) brought this

action on behalf of Thomas Freeman, who applied to Burlington Northern and

Santa Fe Railw ay Company (Burlington) for the position of conductor trainee.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
       The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.
The EEOC now appeals the district court’s entry of summary judgment on its

claim that Burlington’s failure to hire M r. Freeman violated the Americans w ith

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. See EEOC v. Burlington N.

& Santa Fe Ry. Co., 406 F. Supp. 2d 1228 (W .D. Okla. 2005). W e affirm.

                                          I.

      After completing a six-week course designed to train individuals to be

conductors and while working as a conductor trainee for a smaller railroad,

M r. Freeman applied to Burlington for its posted openings for the position of

conductor trainee. At Burlington, a conductor trainee sets or releases hand brakes

and perform other duties. The employee is required to “ride[] moving car by

hanging on grab irons or ladder, sometimes for extended period of time.” Jt. App.

at 126, 130. Burlington offered the job to M r. Freeman, conditioned on his

passing a physical examination, strength test, drug screen, and background check.

M r. Freeman apparently passed all these tests.

      On a medical questionnaire, however, M r. Freeman explained that he had

previously suffered an injury to his left arm. This statement prompted concern on

the part of Burlington’s hiring officer. To provide further medical information,

M r. Freeman consulted with his orthopedist, took a grip-strength test, and

obtained the orthopedist’s written opinion that he was “able to pursue any type of

employment that he so desires including . . . . hanging from the side of railroad

cars,” with no medical restrictions. Id. at 232. Nevertheless, Dr. Jarrard,


                                         -2-
a Burlington medical officer, conducted his own review of the medical records.

He decided that M r. Freeman had a weakness in his left arm and diminished grip

strength in his left hand, a medical condition that “creates a significant risk that a

serious or potentially fatal accident may occur” while hanging from “the side of

moving train cars using only one arm for support.” Id. at 224. Dr. Jarrard

therefore concluded that M r. Freeman was not qualified for the conductor-trainee

position or any other train-service job, which all require hanging from a moving

train.

         M r. Freeman filed an EEOC charge alleging disability discrimination on the

part of B urlington. The EEO C found reasonable cause to believe that an ADA

violation had occurred and pursued M r. Freeman’s claim in this lawsuit. The

parties’ filings narrowed the issue to whether Burlington violated the ADA by

regarding M r. Freeman as an individual with a physical impairment. Id. at 25. 1

The parties conducted limited discovery and, on Burlington’s motion for sum mary

judgment, they “fully briefed this issue” and compiled “an extensive record.”

Burlington N. & Santa Fe Ry. Co., 406 F. Supp. 2d at 1230.

                                           II.

         In evaluating the EEOC’s claim, the district court applied the

well-established framew ork recently summarized in EEOC v. Heartway Corp.,



1
       Neither of the parties argued that the perceived weakness amounted to an
actual disability.

                                           -3-
Nos. 05-7011 & 05-7016, 2006 W L 3030562 (10th Cir. Oct. 26, 2006). A claim

under the ADA requires the EEOC “to prove, inter alia, that [plaintiff] had a

disability.” Id. at *3. “The ADA broadly defines ‘disability’” to include “being

regarded as having . . . an impairment” that substantially limits one or more of an

individual’s major life activities.” Id. (quoting 42 U.S.C. § 12102(2)). As in

Heartway, “[t]he only major life activity at issue in this case is the activity of

working.” Id. at *3. A claim that the employer regarded a plaintiff as

substantially limited in the major life activity of working “‘takes a plaintiff to the

farthest reaches of the ADA.’” Id. at *4 (quoting Ross v. Campbell Soup Co., 237

F.3d 701, 709 (6th Cir. 2001)). The required evidentiary showing is “particularly

difficult,” but not “insurmountable.” Id. at *4, *5.

      “The applicable EEOC regulations specify that the ‘regarded as’ standard

may be met when a person ‘[h]as a physical or mental impairment that does not

substantially limit major life activities but is treated by a covered entity as

constituting such limitation.’” Id. at *3 (quoting 29 C.F.R. § 1630.2(l)).

      “[W ]ith respect to the major life activity of w orking,’ [t]he term
      “substantially limit[ed]” means significantly restricted in the ability
      to perform either a class of jobs or a broad range of jobs in various
      classes as compared to the average person having comparable
      training, skills and abilities. The inability to perform a single,
      particular job does not constitute a substantial limitation in the major
      life activity of working.

Id. at *3-*4 (quoting § 1630.2(j)(3)(i)).




                                            -4-
      A determination of the employer’s perception “is strongly subjective, [but]

the question of what constitutes a ‘class of jobs’” presents “an objective

question.” Id. at *5. “[T]here need not be evidence that the employer knew or

believed that the group of jobs from which the employer viewed the employee as

restricted constituted (or included) a ‘class of jobs.’” Id.

      In addressing the meaning of “class of jobs” under the ADA , the Supreme

Court has explained:

      To be substantially limited in the major life activity of working, . . .
      [an employee] must be precluded from more than one type of job, a
      specialized job, or a particular job of choice. If jobs utilizing an
      individual’s skills (but perhaps not his or her unique talents) are
      available, one is not precluded from a substantial class of jobs.
      Similarly, if a host of different types of jobs are available, one is not
      precluded from a broad range of jobs.

Sutton v United Air Lines, Inc., 527 U.S. 471, 492 (1999). In like fashion, the

EEOC regulations define the term “as ‘[t]he job from which the individual has

been disqualified because of an impairment, and the number and types of jobs

utilizing similar training, knowledge, skills or abilities, within that geographical

area, from which the individual is also disqualified because of the impairment.’”

Heartway Corp., 2006 W L 3030562, at *5 (quoting 29 C.F.R.

§ 1630.2(j)(3)(ii)(B)) (further quotations omitted). Although not an “onerous

evidentiary showing,” the plaintiff must “relate the characteristics of the

‘class’ . . . of jobs to the performance-restricting consequences of [his] perceived

impairment.” Id. at *6 (citing 29 C.F.R. § 1630.2(j)(3)(II)(B) & (C)).


                                          -5-
      To prevail on its claim, the EEOC was required to demonstrate that

Burlington viewed the perceived left-arm and grip-strength weakness as

significantly restricting M r. Freeman’s ability to perform a class of jobs. 2 M ore

particularly, the issue before the district court on summary judgment was whether

the EEOC’s evidence would have allowed a reasonable jury to conclude that

“Burlington’s decision regarding [M r.] Freeman applies to a ‘class of jobs.’”

Burlington N. & Santa Fe Ry. Co., 406 F. Supp. 2d at 1233.

                                          III.

      M r. Freeman applied for one job, that of conductor trainee. This is a

position in the Burlington job category of train service, which also includes

conductor, brakeman, switchman/switch foreman, and hostler. All these positions

involve holding onto the grab bar or ladder on the exterior of a moving train as a

job requirement.

      In the district court, the EEOC argued that Burlington regarded

M r. Freeman as disqualified from train service jobs and also a number of other

positions which sometimes necessitate climbing onto a train, grabbing with one

hand, or riding on the exterior of the train. According to the EEOC, adding these

positions together meant that “fully 93 percent of all [Burlington] jobs are

unattainable by [M r.] Freeman.” Jt. App. at 154. The district court, however,


2
       Although the EEOC asserted in the district court that Burlington regarded
M r. Freeman as disqualified from performing a broad range of jobs in various
classes, it does not advance that argument on appeal. Aplt. Br., 14 at n.3.

                                          -6-
rejected the EEOC’s attempt to broaden the class because none of the other jobs

expressly required the ability to hold onto the exterior of a moving train.

      And the district court concluded that, standing alone, “the category of train

service [did not] constitute a class of jobs as that term is defined by the ADA.”

Burlington N. & Santa Fe Ry. Co., 406 F. Supp. 2d at 1237. Synthesizing ADA

case law, the district court observed that “where an individual cannot perform a

specific required task in a particular position or positions but can perform other

tasks, he is not considered excluded from a ‘class of jobs.’” Id. at 1235. See also

M urphy v. United Parcel Serv., 527 U.S. 516, 524 (1999) (mechanic’s inability to

obtain certification to drive commercial vehicles did not amount to a showing that

employer regarded him as being unable to perform a class of mechanic jobs);

Rakity v. Dillon Cos., 302 F.3d 1152, 1164 (10th Cir. 2002) (employer’s belief

that plaintiff could not perform heavy lifting did not amount to a showing that

employer regarded him as unable to perform a broad class of grocery clerk jobs);

Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1089 (10th Cir. 1999) (flight

nurse disqualified following a M S diagnosis but allowed to perform regular

nursing jobs did not establish she w as precluded from a substantial class of jobs);

M acDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1445 (10th Cir. 1996)

(position requiring an aircraft mechanic to taxi aircraft as is “a single, particular

job,” not “a class of jobs” ). In sum, the record lacked evidence that Burlington




                                          -7-
perceived M r. Freeman as ineligible for a “class of jobs,” as the term is used

in the ADA.

                                          IV.

      On appeal, the EEOC has shifted its theory on the composition of class of

jobs. It now points out that Burlington’s labor agreement provides that train

service is a prerequisite to a position in engine service, a category that includes

the jobs of engineer, engine foreman, fireman, and yardmaster. 3 These jobs, the

EEOC argues, should be tallied with train-service positions to show that

M r. Freeman was disqualified from 47% of jobs held by Burlington’s workforce.

It adds that the proposed class corresponds to a recognized occupational

classification.

      “W e consider each case individually in determining whether to exercise our

discretion to consider a question raised for the first time on appeal. Such

determination must begin with recognition that sound policy supports the

proposition that an appellate court will not consider an issue raised for the first



3
       W e note, as did the district court, the record does not demonstrate that
engine service requires the physical abilities of train service and it does show that
train service requires additional training, knowledge, and skills. Burlington N. &
Santa Fe Ry., 406 F. Supp. 2d at 1231, n.2. During agency proceedings, however,
“Burlington included [engineer] in the train service category because the
collective bargaining agreement . . . specifies that the position . . . is the final step
in a progression which requires that, to be eligible for training as a[n] . . .
engineer, an individual must have held the positions of Conductor
Trainee/Conduct or Brakeman/Sw itchman.” Burlington N. & Santa Fe Ry.,
406 F. Supp. 2d at 1231, n.2.

                                           -8-
time on appeal.” Gorman v. Carpenters’ & M illwrights’ Health Benefit Trust

Fund, 410 F.3d 1194, 1202 (10th Cir. 2005) (quotation omitted). “This rule is

particularly apt when dealing with an appeal from a grant of summary judgment,

because the material facts are not in dispute and the trial judge considers only

opposing legal theories.” Id. (quotation omitted).

      The EEOC contends that it sufficiently preserved its appellate argument

that the engine-service positions in line of progression with train-service jobs

should be included in the proposed class of jobs. W e have reviewed the EEOC’s

district court briefs, along with its expert report and appended exhibits without

encountering this contention. W e decline to consider the EEOC’s new theory on

appeal. 4 W e AFFIRM .

                                                     Entered for the Court



                                                     W ade Brorby
                                                     Circuit Judge




4
       W e do note, however, that the EEOC’s appellate brief provides no
statutory, regulatory, or case law supporting its proposition that all jobs in a
career progression should be included in a class of jobs for purposes of an ADA
analysis. The EEOC’s argument is inconsistent with the need to show that the
proposed class includes only “‘jobs utilizing similar training, knowledge, skills or
abilities.’” Heartway Corp., 2006 W L 3030562, at *5 (quoting 29 C.F.R.
§ 1630.2(j)(3)(ii)(B)).

                                         -9-
