UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellant,
                                                                      No. 99-2413
v.

BROWNING-FERRIS, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-98-3246-MJG)

Argued: May 4, 2000

Decided: July 28, 2000

Before MURNAGHAN and TRAXLER, Circuit Judges, and
Jerome B. FRIEDMAN, United States District Judge
for the Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Foster Suhre, EQUAL EMPLOYMENT OPPOR-
TUNITY COMMISSION, Washington, D.C., for Appellant. Christo-
pher George Bell, JACKSON, LEWIS, SCHNITZLER &
KRUPMAN, Minneapolis, Minnesota, for Appellee. ON BRIEF: C.
Gregory Stewart, General Counsel, Philip B. Sklover, Associate Gen-
eral Counsel, Vincent J. Blackwood, Assistant General Counsel,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Appellant. Molly P. Wright, JACKSON, LEWIS,
SCHNITZLER & KRUPMAN, Minneapolis, Minnesota, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The Equal Employment Opportunity Commission ("EEOC")
appeals the dismissal of an action it filed on behalf of Deborah J.
Brown ("Brown") against Browning-Ferris, Inc. ("BFI") under the
Americans with Disabilities Act of 1990 ("ADA"). See 42 U.S.C.A.
§§ 12101 - 12213 (West 1995 & Supp. 2000). We vacate the district
court's order dismissing the EEOC's complaint for failure to state a
cause of action, see Fed. R. Civ. P. 12(b)(6), and remand for further
proceedings.

I.

Brown worked as a waste removal truck driver for BFI, a company
that provides garbage-removal and recycling services for various
municipalities in Maryland. She suffers from Crohn's Disease, a type
of inflammatory bowel disease, and perirectal disease, which is often
associated with Crohn's disease. Brown began working as a parts run-
ner for BFI in 1988 but subsequently became a truck driver for BFI.
She was working in this latter capacity in January 1995, when BFI
effectively discharged her.

The EEOC filed this action on Brown's behalf, alleging that BFI
followed unlawful employment practices that "include[d] placing
Deborah J. Brown on unpaid leave and shortly thereafter terminating

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her based upon [BFI's] perception that she was disabled, and ignoring
all evidence that . . . she was fully able to perform her job, even with
Crohn's Disease." J.A. 6. The complaint specifically alleged that BFI
terminated Brown "based on its perception that her Crohn's Disease
prevented her from working around waste." J.A. 4.

Prior to filing an answer BFI moved to dismiss pursuant to Rule
12(b)(6). Both parties submitted materials outside of the pleadings,
but the district court declined to consider them. Focusing strictly on
the EEOC's complaint, the district court granted the motion to dis-
miss. Relying on the interpretive regulations issued by the EEOC, the
district court indicated that a fatal flaw in the EEOC's complaint was
its failure to allege that BFI perceived Brown as having an impair-
ment that "`significantly restricted [her] 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 abili-
ties.'" J.A. 32 (quoting 29 C.F.R. § 1630.2(j)(3)(i)). Rather, the dis-
trict court saw the complaint as alleging "[a]t most . . . that [BFI]
regarded Brown as unable to perform only a particular job (waste
removal truck driver) or a very narrow class of jobs (one that involves
working around waste)." J.A. 33. The district court concluded that
such an allegation -- that BFI regarded Brown as being unable to
work around waste -- was insufficient to support a claim for relief
under the ADA. See 29 C.F.R. § 1630.2(j)(3)(I) ("The inability to per-
form a single, particular job does not constitute a substantial limita-
tion in the major life activity of working."). Consequently, the district
court dismissed the complaint.

II.

Our review of the district court's dismissal of the EEOC's com-
plaint under Rule 12(b)(6) is de novo. See Mylan Lab., Inc. v. Mat-
kari, 7 F.3d 1130, 1134 (4th Cir. 1993). We accept the facts as alleged
in the complaint as true, view them in the light most favorable to the
EEOC, and recognize that dismissal is improper "unless it appears to
a certainty that the plaintiff would be entitled to no relief under any
state of facts which could be proved in support of his claim." Id. at
1134 & n.4 (internal quotation marks omitted).

In order to establish a claim under the ADA, a plaintiff must show
"(1) that [s]he has a disability; (2) that[s]he is otherwise qualified for

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the employment or benefit in question; and (3) that[s]he was
excluded from the employment or benefit due to discrimination solely
on the basis of the disability." Doe v. University of Md. Med. Sys.
Corp., 50 F.3d 1261, 1265 (4th Cir. 1995); see 42 U.S.C.A.
§ 12112(a) (prohibiting discrimination "against a qualified individual
with a disability" with respect to the "terms, conditions, and privileges
of employment"). Our sole concern in this appeal is whether the
EEOC's allegations that Brown suffers a disability are sufficient to
survive a motion to dismiss pursuant to Rule 12(b)(6).

"Disability" as defined in the ADA means "a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual . . . or being regarded as having such an
impairment." 42 U.S.C.A. § 12102(2) (emphasis added). The EEOC
contends that BFI regarded Brown as disabled as defined by the
ADA. "In order to be eligible for coverage under the ADA, an indi-
vidual must be perceived as having an impairment that substantially
limits one or more `major life activities.'" Cline v. Wal-Mart Stores,
Inc., 144 F.3d 294, 302 (4th Cir. 1998).

The phrase "major life activities" is interpreted by the regulations
to mean "functions such as caring for oneself, . . . seeing, hearing,
speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).
An impairment does not substantially limit the major life activity of
"working" unless it "significantly restrict[s] . . . 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." 29 C.F.R. § 1630.2(j)(3)(i). Moreover, "[t]he inability
to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working." Id. A "class of jobs"
includes "[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." 29 C.F.R. § 1630.2(j)
(3)(ii)(B). A "broad range of jobs," by contrast, includes "[t]he job
from which the individual has been disqualified because of an impair-
ment, and the number and types of other jobs not utilizing similar
training, knowledge, skills or abilities." 29 C.F.R. § 1630.2(j)(3)
(ii)(C).

In the instant case, the complaint includes an allegation that can
reasonably be read to allege that BFI perceived Brown as having a

                     4
disability that affects a major life activity: "Defendant placed Ms.
Brown on leave without pay and soon thereafter discharged her, based
on its perception that her Crohn's Disease prevented her from work-
ing around waste." J.A. 4. The district court concluded that the com-
plaint failed to state a cause of action under the ADA because the
district court interpreted the complaint to allege that BFI perceived
Brown as unable to perform a single, particular job or, at most, a nar-
row class of jobs rather than a broad range or class of jobs. The
EEOC contends that this conclusion was erroneous in two ways. First,
the EEOC maintains that the district court read the complaint too nar-
rowly and that the complaint merely alleges that Brown was per-
ceived as having a disability, which is sufficient to satisfy the liberal
notice pleading requirements. Second, the EEOC asserts that even if
the complaint is read narrowly, "BFI's view that Brown's impairment
precluded her from `working around waste' would disqualify her
from either a class of jobs or a broad range of jobs." Brief of Appel-
lant at 10.

With regard to the EEOC's first contention, we agree that the dis-
trict court's reading of the complaint was unduly narrow. The district
court was certainly correct in noting that "[a]lthough notice pleading
does not require a plaintiff to plead particulars,`if a plaintiff chooses
to [do so], and they show that he has no claim, then he is out of
luck.'" Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir.
1998) (quoting Jefferson v. Ambroz, 90 F.3d 1291, 1296 (7th Cir.
1996)) (alteration in original). Here, however, we think the complaint
is worded broadly enough to permit the EEOC an opportunity to go
beyond the pleadings and offer proof, if it can, that BFI regarded
Brown as substantially limited in major life activities other than that
of "working." Reading the complaint generously, we think the allega-
tion that BFI "plac[ed] Deborah J. Brown on unpaid leave and shortly
thereafter terminat[ed] her based upon[BFI's] perception that she
was disabled," J.A. 6 (emphasis added), was sufficient to meet notice
pleading requirements. Thus, we find that a remand is appropriate to
allow the action to proceed.

Moreover, even if we were to read the complaint narrowly -- that
the EEOC was limited only to establishing an ADA claim based on
the theory that BFI regarded Brown as unable to work only to the
extent the work required her to come near or into contact with waste

                     5
-- we would conclude that dismissal was inappropriate at this stage.
The Supreme Court noted recently that there are two ways in which
an individual such as Brown can be "regarded as" having a disability
within the meaning of the ADA: "(1) a covered entity mistakenly
believes that a person has a physical impairment that substantially
limits one or more major life activities, or (2) a covered entity mis-
takenly believes that an actual, nonlimiting impairment substantially
limits one or more major life activities." Sutton v. United Air Lines,
Inc., 119 S. Ct. 2139, 2149-50 (1999). In this case, the EEOC's alle-
gations are of the latter variety -- that BFI mistakenly believes that
Brown's Crohn's disease substantially limits a major life activity even
though it does not. Sutton provides guidance for cases involving the
"major life activity" of "working." ADA plaintiffs in such cases must
allege that they are perceived by an employer to be unable to work
more than a single type of job:

          To be substantially limited in the major life activity of work-
          ing . . . one 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.

Id. at 2151.

Although the issue is a close one, we conclude that this action
should not have been disposed of as a matter of law under Rule
12(b)(6), even if the complaint is viewed narrowly. As the EEOC
points out, "working around waste" could conceivably cover a broad
range of jobs, including a host of positions wholly separate from the
waste removal industry. It is simply not clear from the face of the
complaint what precisely the EEOC means in alleging BFI regards
Brown as unable to "work around waste." At this stage of the case,
we are not prepared to say that it is not possible for the EEOC to pre-
sent evidence that will refine its allegations and establish that BFI
regarded Brown as substantially limited in her ability to work. In
other words, we are not persuaded "to a certainty that the [EEOC]
would be entitled to no relief under any state of facts which could be

                    6
proved in support of [its] claim." Matkari, 7 F.3d at 1134 & n.4 (inter-
nal quotation marks omitted). Accordingly, we conclude that the dis-
missal of the EEOC's complaint under the circumstances was
premature. We therefore vacate the order of the district court and
remand this action for further proceedings consistent with the forego-
ing opinion.

VACATED AND REMANDED

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