In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1179

JOHN LAWSON, SR.,

Plaintiff-Appellant,

v.

CSX TRANSPORTATION, INCORPORATED,

Defendant-Appellee.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 98 C 1182--Sarah Evans Barker, Judge.


Argued September 14, 2000--Decided March 26, 2001



      Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.

      RIPPLE, Circuit Judge. John Lawson, Sr. filed a
claim against CSX Transportation, Inc. ("CSX")
under the Americans With Disabilities Act ("ADA"
or "the Act"). He alleged that CSX had
discriminated against him because of a disability
when it refused to hire him as a trainee for a
train conductor position. The district court held
that Mr. Lawson had presented insufficient
evidence for a jury to find that his Type I
insulin-dependent diabetes constituted a
disability within ADA coverage, or that CSX
refused to hire him because of his disability.
Because we believe that the district court did
not analyze properly whether Mr. Lawson is
entitled to the protections of the Act and
therefore failed to assess properly the evidence
of record, we must reverse the judgment of the
district court and remand the case for
proceedings consistent with this opinion.

I
BACKGROUND
A. Facts

      John Lawson, Sr. has had Type I insulin-
dependent diabetes from infancy. According to the
affidavit of his physician,/1 in order to manage
his disease, Mr. Lawson must monitor carefully
blood sugar levels and minimize fluctuations in
his blood sugar. This monitoring requires
"continued vigilance" and strict adherence to "a
perpetual, multi-faceted and demanding treatment
regime." R.58, Ex.1 at 4 para. 11. He must
"inject insulin, follow a diet plan, exercise
daily, and test his blood sugar several times a
day." Id. para. 12. More precisely, Mr. Lawson
typically tests his blood four to six times every
day and administers three insulin injections. If
a blood test indicates a drop in glucose levels,
the district court explained that Mr. Lawson
"must stop all other activities in which [he] may
be engaged at the time and take in the kinds of
food that will bring [his] sugar levels back to
normal." R.60 at 8. Unless Mr. Lawson acts
quickly to raise his blood sugar, "he will
experience disabling episodes of dizziness,
weakness, loss of mentation and concentration,
and a deterioration of bodily functions." R.58,
Ex.1 at 4 para. 14. Consequently, "Lawson cannot
simply eat when and where he wants to, or exert
himself without concern for the effect the
exertion will have on his glucose levels." Id.
para. 15. Unlike a person with normal metabolic
function, Mr. Lawson "must always concern himself
with the availability of food, the timing of when
he eats, and the type and quantity of food he
eats." Id. at 5 para. 15. According to Dr.
Skierczynski, "Lawson’s eating as a fundamental,
major life activity is substantially limited" due
to his diabetes. Id.

      Throughout his life, Mr. Lawson has had great
difficulty regulating his blood sugar levels. As
a young person, he was "in and out of hospitals
quite a bit" and had frequent insulin reactions
that caused him to drop items, get "the shakes,
headaches," and "occasionally . . . pass out."
R.41, Ex.3 at 32. Despite the fact that Mr.
Lawson has not sought hospitalization for his
diabetes since 1983, he continues to experience
"wildly fluctuating glucose levels with
hyperglycemia and hypoglycemia" and had a "severe
hypoglycemic reaction" in December 1995, when he
became confused and briefly lost
consciousness./2 R.58, Ex.1 at 2 para. 6(e)-(f).
Mr. Lawson’s symptoms of low blood sugar, or
hypoglycemia, include "slur[red] speech, profuse
sweating, paleness, shaking, unsteady walk, and
fruity odor breath." R.41, Ex.2 at 4 para. 25.
Dr. Skierczynski concluded that "Lawson’s
inability to properly regulate his blood sugar
levels will always put his life at risk no matter
how vigilantly he monitors his condition." R.58,
Ex.1 at 4 para. 13.

      Mr. Lawson’s diabetes also has precipitated a
number of other serious ailments that limit him
physically and complicate his treatment and
prognosis regarding his diabetic condition./3 In
1995 and 1996, Mr. Lawson required multiple laser
treatments in each eye for proliferative diabetic
retinopathy, a condition that affects the small
blood vessels in the retina. He also sought
medical advice in 1995 "for fading erectile
ability, a problem commonly associated with
diabetes," and "continues to suffer from
impotence." Id. para. 6(i). Mr. Lawson
periodically experiences symptoms of "limited
joint mobility syndrome," a condition also
associated with diabetes, which causes "swelling
in [his] hands and wrists, and pain in [his]
elbows, hips and feet." R.41, Ex.2 at 1 para. 4.
Additionally, Mr. Lawson suffers from chronic
"elevated A-1 C hemoglobin tests" and
proteinuria, a condition involving an excess of
protein in one’s urine that "will likely progress
over the years to renal failure." R.58, Ex.1 at 3
para. 6(k)-(l). Dr. Skierczynski predicts that,
due to Mr. Lawson’s fluctuating glucose levels
and high hemoglobin test results, Mr. Lawson "has
a high risk of aggravating his already existing
medical problems and developing long term
complications of retinopathy, nephropathy,
neuropathy and cardiopathy." Id. at 5 para. 16.

      Mr. Lawson, since graduating from high school in
1984, has held a few jobs of relatively short
duration. From 1984 through 1986, Mr. Lawson
worked for a time in his parents’ kennel business
and also performed "a variety of ’odds and ends’
work while looking for a permanent job." R.41,
Ex.2 at 1 para. 6. Between 1985 and 1986, Mr.
Lawson claims that he was employed with a small
construction company but that he was forced to
leave this job after a serious insulin reaction
rendered him unable to work./4 In the period
between 1986 through 1998, Mr. Lawson received
Social Security Disability Insurance ("SSDI")
benefits and worked briefly during two separate
periods in temporary jobs, neither of which
lasted more than four months.

  In March 1997, Social Security personnel noted
that Mr. Lawson’s medical condition seemed to be
improving and suggested to his caseworker at the
Indiana Vocational Rehabilitation Agency that Mr.
Lawson might be physically able to find steady
employment. Mr. Lawson indicated an interest in a
conductor trainee program ("the program") offered
at Cincinnati State Technical and Community
College ("Cincinnati State") to train conductors
for CSX, a railroad transportation company based
in Jacksonville, Florida./5 In response to an
inquiry from Mr. Lawson’s caseworker regarding
whether a diabetic could perform the conductor’s
job, Cincinnati State furnished a job description
prepared by Laurie Ryan, a resource manager at
CSX. The job description for the conductor
trainee position lists four requirements:
[(1)] 1 or more years as a freight conductor . .
. or [g]raduation from the 5 week conductor
training program at . . . Cincinnati State . . .
[(2)] [h]igh school diploma or GED [3] [g]ood
physical condition, including vision, color
vision, hearing, and the ability to lift 85
pounds [and (4)] 10th grade reading level[.]

R.41, Ex.6 at 3.


      After undergoing a physical examination by his
family physician, who pronounced him "in good
general condition" and able to "do[ ] this [CSX
conductor] job on a full time basis," R.41, Ex.6
at 4, Mr. Lawson also passed two written entrance
exams required for admission into the program--a
personality test and a mechanical aptitude test.
As a result, on December 23, 1997, Mr. Lawson was
admitted to the program at Cincinnati State.

      Mr. Lawson began the five-week training program
on January 20, 1998, in a class of 14 students.
Mr. Lawson’s classmates and instructors in the
program were well aware of his diabetic
condition. At times during the program, Mr.
Lawson explained to them the symptoms of his
condition and the methods by which it can be
treated; at times Mr. Lawson even injected
himself with insulin in class. Ultimately, Mr.
Lawson completed the program with a running quiz
average of 96.1% and an exam average of 94.5%,
well above the 85% minimum average that CSX
requires for consideration as a conductor
trainee.

      In February 1998, Mr. Lawson was interviewed by
Ryan and by Jeanie Layne, who is also a human
resource manager for CSX./6 There is a dispute
regarding what Mr. Lawson told Ryan and Layne at
the interview regarding his diabetes. Mr. Lawson
claims that he explained that his "lack of
employment experience was the result of [his]
diabetic condition," that he "had been totally
disabled for a number of years," and that he "was
receiving social security disability benefits."
Id., Ex.2 at 3 para.para. 16-17. Mr. Lawson also
claims that he described to Ryan and Layne his
efforts to educate his classmates in the program
regarding the symptoms and treatment of
hypoglycemia./7

      Despite the fact that it hires approximately 98%
of all successful program participants, and that
it offered each of Mr. Lawson’s classmates
employment, CSX did not offer Mr. Lawson the job.
Ryan testified that Mr. Lawson was not offered
employment because of his very limited work
history, which "was not solid or verifiable."
Id., Ex.1 at 42. Although Ryan maintained that
CSX prefers to hire candidates with a high school
diploma and a solid, verifiable work history, she
conceded that CSX sometimes makes "exception[s]"
and hires conductor trainees who do not have such
qualifications. Id. at 70./8 She also
acknowledged that CSX had no written standards
for evaluating applicants at the time of Mr.
Lawson’s interview and that this situation gave
her a certain level of discretion in making job
offers. She explained that, in her view, Mr.
Lawson had not provided any additional
information that would have justified making an
"exception" to CSX’s preference for a solid,
verifiable work history.

      Not long after learning of CSX’s decision, Mr.
Lawson spoke with Ryan by telephone. In that
conversation, as the district court recounted,
Ryan told Mr. Lawson that his lack of a solid,
verifiable work history was the reason for CSX’s
decision and that "if Lawson wanted to go flip
hamburgers for a year, CSX would reconsider his
application." R.60 at 16 (alteration in original)
(citation omitted). However, Ryan later admitted
that at the time of its employment decision, CSX
had in fact not attempted to verify Mr. Lawson’s
previous employment and that factor had no impact
on her decision. See R.41, Ex.1 at 42.

      After he was denied a job by CSX, Mr. Lawson
made, without success, other efforts to find
employment. Ultimately, following the filing of
this lawsuit, CSX hired Mr. Lawson for the
conductor trainee job despite the fact that it
still maintained that his work history did not
qualify him for the position. Mr. Lawson has
worked for CSX in Terre Haute, Indiana, since
January 18, 1999.

B.   Proceedings in the District Court

      Mr. Lawson filed suit against CSX on August 27,
1998, claiming that the company refused to hire
him because of his disability, insulin-dependent
diabetes, in violation of the ADA. In its motion
for summary judgment, CSX argued that Mr. Lawson
was not qualified for the conductor trainee
position because "he lacked prior employment
history evidencing responsibility, safety and
dependability," R.38 at 1, and could not
demonstrate that CSX’s reason for rejecting him
was a pretext for discrimination. CSX further
argued that, under the standard adopted by the
Supreme Court in Sutton v. United Airlines, Inc.,
527 U.S. 471 (1999), Mr. Lawson’s diabetes is not
a disability as defined by the ADA.

      The district court granted summary judgment for
CSX. The court first held that Mr. Lawson was not
disabled under the Act because he could not
demonstrate that his diabetes rendered him
substantially limited in a major life activity,
nor could he provide a record of his having been
substantially limited in a major life activity in
the past. The district court also held that, even
assuming Mr. Lawson could set forth a prima facie
case of discrimination under the ADA, summary
judgment was proper because CSX had provided "a
legitimate nondiscriminatory reason for its
decision not to hire him and Lawson has not shown
that CSX’s reason was pretextual." R.60 at 42-43.
Mr. Lawson then appealed to this court.

II
DISCUSSION
A. Standard of Review

      We review the district court’s grant of summary
judgment de novo, viewing the record in the light
most favorable to Mr. Lawson. See Gorbitz v.
Corvilla, Inc., 196 F.3d 879, 881 (7th Cir.
1999). We shall affirm a grant of summary
judgment only if "the pleadings, depositions,
answers to interrogatories, and admissions on
file, together with the affidavits, if any, show
that there is no genuine issue as to any material
fact and that the moving party is entitled to
judgment as a matter of law." Fed. R. Civ. P.
56(c). A grant of summary judgment will not be
sustained if "the evidence is such that a
reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).

      Mr. Lawson has employed the burden-shifting
methodology set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Under this
approach, he must show: (1) that he is disabled
within the meaning of the ADA, (2) that he was
qualified for the conductor trainee position at
CSX, (3) that he was subject to an adverse
employment action, and (4) that the circumstances
surrounding the adverse action indicate that it
is more likely than not that his disability was
the reason for it. See Weigel v. Target Stores,
122 F.3d 461, 465 (7th Cir. 1997); see also
Leffel v. Valley Fin. Servs., 113 F.3d 787, 794
(7th Cir. 1997). If Mr. Lawson succeeds in
demonstrating the elements of a prima facie case,
CSX must then offer a lawful, nondiscriminatory
reason for its adverse action. See Silk v. City
of Chicago, 194 F.3d 788, 799 (7th Cir. 1999). If
CSX does so, Mr. Lawson must rebut that reason by
showing that the proffered reason is actually a
pretext for discrimination. See id. Of course,
because Mr. Lawson’s appeal here is in response
to a grant of summary judgment for CSX, he need
only show that a genuine issue of material fact
exists as to these factors.
B. Establishment of a Disability under
the ADA
1.

      We first examine whether a jury could find that
Mr. Lawson is disabled within the meaning of the
ADA, such that he could establish the first part
of his prima facie case. In an effort to prove
that he was disabled under the Act’s definition,
Mr. Lawson contended in the district court that
his diabetes substantially limited him in the
major life activity of eating. We now address his
arguments in this regard.

      The ADA defines a "disability" as: (1) "a
physical or mental impairment that substantially
limits one or more of the major life activities"
of an individual, (2) "a record of such an
impairment," or (3) "being regarded as having
such an impairment." 42 U.S.C. sec. 12102(2).
With regard to the first method of demonstrating
a disability, whether an individual has "a
physical or mental impairment that substantially
limits one or more of the major life activities,"
the Supreme Court of the United States has
instructed us to address the following inquiries:

First, we consider whether [the individual’s
claimed disability] was a physical impairment.
Second, we identify the life activity upon which
[the individual] relies . . . and determine
whether it constitutes a major life activity
under the ADA. Third, tying the two statutory
phrases together, we ask whether the impairment
substantially limited the major life activity.

Bragdon v. Abbott, 524 U.S. 624, 631 (1998).

      We have no difficulty in determining that Mr.
Lawson’s insulin-dependent diabetes and related
medical conditions are physical impairments under
the Act. As the district court noted, Mr.
Lawson’s diabetes affects "many of the organ
systems in his body," including his "metabolic,
vascular, urinary, and reproductive systems as
well as his joints and eyes," and negatively
impacts his depression and high blood pressure.
R.60 at 29; see also 45 C.F.R. sec. 84.3(j)(2)(i)
(defining "[p]hysical or mental impairment").

      We also conclude that eating is a "major life
activity" as defined by the ADA. Equal Employment
Opportunity Commission regulations interpreting
the ADA define "major life activity" by providing
a non-exhaustive list that includes "functions
such as caring for one’s self, performing manual
tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." 29 C.F.R. sec.
1630.2(i); see also Sinkler v. Midwest Prop.
Mgmt. Ltd. P’ship, 209 F.3d 678, 683 (7th Cir.
2000); cf. Bragdon, 524 U.S. at 638-39 (citing
similarly worded Rehabilitation Act regulations).
Such activities need not have a public or
economic character to them; they must simply be
"central to the life process itself." Bragdon,
524 U.S. at 638. Clearly, the ability to eat is
integral to one’s daily existence, as much or
more so than the activities listed in the
implementing regulations. As a result, we hold
that eating constitutes a "major life activity"
for purposes of the ADA. See Forest City Daly
Hous., Inc. v. Town of North Hempstead, 175 F.3d
144, 151 (2d Cir. 1999) (eating is a major life
activity for purposes of ADA coverage); Land v.
Baptist Med. Ctr., 164 F.3d 423, 424 (8th Cir.
1999) (same); Erjavac v. Holy Family Health Plus,
13 F. Supp.2d 737, 746-47 (N.D. Ill. 1998)
(same).

      The protections of the Act only apply, however,
when it is demonstrated that the disability of
the individual "substantially limits" a major
life activity such as eating. The Supreme Court
has held that, in determining whether a claimed
disability is substantially limiting, we must
examine the plaintiff’s condition as it exists
after corrective or mitigating measures used to
combat the impairment are taken into account. See
Sutton, 527 U.S. at 482. Therefore, in Mr.
Lawson’s case, we must consider the beneficial
effects of his diabetes medication in determining
whether his diabetic condition substantially
limits his ability to eat.

      Here, we cannot accept the district court’s
conclusion that Mr. Lawson could be substantially
limited in his ability to eat only if his "actual
physical ability to ingest food is restricted."
R.60 at 36. This construction of the statutory
phrase "substantially limits" conflicts with the
Supreme Court’s recognition that the ADA
"addresses substantial limitations on major life
activities, not utter inabilities." Bragdon, 524
U.S. at 641. The district court failed to
consider the extent of the restrictions imposed
by Mr. Lawson’s treatment regimen and the
consequences of noncompliance with that regimen.
In doing so, the court prevented Mr. Lawson from
showing that, although he is not incapable of
ingesting food, his diabetes produces a
"substantial limitation" on his ability to
perform the basic life function of eating.

      The record contains undisputed testimony that,
even when taking insulin, Mr. Lawson’s "ability
to regulate his blood sugar and metabolize food
is difficult, erratic, and substantially
limited." R.58, Ex.1 at 4 para. 18. Additionally,
"Lawson cannot simply eat when and where he wants
to, or exert himself without concern for the
effect the exertion will have on his glucose
levels. . . . [Instead, he] must always concern
himself with the availability of food, the timing
of when he eats, and the type and quantity of
food he eats." Id. para. 15.

      Moreover, the district court’s characterization
of the impact that Mr. Lawson’s diabetes has on
his ability to eat, described in its opinion as
requiring "simple dietary restrictions," R.60 at
37, belies the severity of the restrictions that
he must follow if he is to avoid dire and
immediate consequences. On a daily basis, Mr.
Lawson must endure the discomfort of multiple
blood tests to monitor his blood glucose levels.
He also must adjust his food intake and level of
exertion to take into account fluctuations in
blood sugar. When his blood sugar drops, he "must
stop all other activities and find the kinds of
food that will bring his levels back to normal or
he will experience disabling episodes of
dizziness, weakness, loss of mentation and
concentration, and a deterioration of bodily
functions." R.58, Ex.1 at 4 para. 14. Mr.
Lawson’s physician characterized the measures he
must take to manage his disease as "a perpetual,
multi-faceted and demanding treatment regime"
requiring "continued vigilance." Id. at 3 para.
11. If Mr. Lawson fails to adhere strictly to
this demanding regimen, the consequences could be
dire: he could experience debilitating, and
potentially life-threatening, symptoms. This
evidence is sufficient for a jury to find that
Mr. Lawson is substantially limited with respect
to the major life activity of eating. See, e.g.,
Sutton, 527 U.S. at 491 (defining "substantially
limits" as meaning "considerable or specified to
a large degree") (citation and internal quotation
marks omitted).

      It is the severity of these limitations on his
ability to eat that distinguishes Mr. Lawson’s
situation from that of other individuals who must
follow the simple "dietary restrictions" that
medical conditions sometimes entail. See, e.g.,
Weber v. Strippit, 186 F.3d 907, 914 (8th Cir.
1999) (unspecified "dietary restrictions"
prescribed for treatment of heart disease were
"moderate limitation[ ]" on eating), cert.
denied, 120 S. Ct. 794 (2000); Land, 164 F.3d at
425 (child with peanut allergy was not
substantially limited in eating because allergy
impacted "her life only ’a little bit’" and only
prohibited her from eating foods containing
peanuts or their derivatives); Shields v.
Robinson-Van Vuren Assocs., Inc., No.
98CIV8785DLC, 2000 WL 565191, at *2-5 (S.D.N.Y.
Nov. 8, 2000) (person controlling diabetes with
diet and exercise alone not substantially limited
in ability to eat when only impact involved
modifications to diet and eating habits, which
were not "severe enough"); Ingles v. Neiman
Marcus Group, 974 F. Supp. 996, 1001-02 (S.D.
Tex. 1997) (person who managed non-insulin-
dependent diabetes with oral medications and "a
’normal, good, healthy diet’" with meals "at
regular intervals" was not substantially limited
in eating). Instead, Mr. Lawson’s severe dietary
restrictions, and the dangerous consequences that
could result from a failure to maintain them, are
more analogous to other cases in which the
potential for a "substantial limitation" on the
ability to eat was found. See, e.g., Erjavac, 13
F. Supp.2d at 746 (issue of fact raised when
insulin-dependent diabetic, viewed in treated
form, "must eat constantly to prevent blood sugar
fluctuations," must "stop all other activities
and pursue . . . food[ ]" when blood sugar drops,
and must self-inject insulin "several times a
day"); Gonsalves v. J.F. Fredericks Tool Co., 964
F. Supp. 616, 621 (D. Conn. 1997) (genuine issue
of fact created when affidavit and deposition
testimony produced evidence that diabetic
plaintiff had "difficulty" eating and "dizziness
and blurry vision when his blood sugar level
became high"); Coghlan v. H.J. Heinz Co., 851 F.
Supp. 808, 814-15 (N.D. Tex. 1994) (genuine issue
of fact created when insulin-dependent diabetic,
viewed in treated form, experienced hypoglycemia,
creating debilitating state, that could only be
alleviated by eating), rev’d on other grounds,
Washington v. HCA Health Servs. of Texas, Inc.,
152 F.3d 464, 469 (5th Cir. 1998), vacated, 527
U.S. 1032 (1999).

      These same considerations--the demands of the
regimen and the effects of noncompliance--also
make this case quite unlike the situation before
the Supreme Court in Sutton. The wearing of
corrective lenses to neutralize the effects of
myopia, at issue in Sutton, 527 U.S. at 475,
involves none of the coordination of multi-
faceted factors or the constant vigilance that,
according to this record, Mr. Lawson must
demonstrate on a daily basis. Moreover, in
Sutton, the Supreme Court noted that "any
negative side effects suffered by an individual
resulting from the use of mitigating measures"
must be taken into consideration. Id. at 484; see
also Moore v. J.B. Hunt Transport, Inc., 221 F.3d
944, 952 n.4 (7th Cir. 2000); Krocka v. City of
Chicago, 203 F.3d 507, 513 (7th Cir. 2000). As we
have previously noted, the multiple insulin
injections that Mr. Lawson takes each day can
cause symptoms of hypoglycemia, creating a
condition where the level of glucose in his blood
is too low. When Mr. Lawson’s blood sugar is
reduced to such low levels, he suffers from
symptoms including "slur[red] speech, profuse
sweating, paleness, shaking, unsteady walk, and
fruity odor breath." R.41, Ex.2 at 4 para. 25.
These symptoms will lead to "dizziness, weakness,
loss of mentation and concentration, and a
deterioration of bodily functions" if Mr. Lawson
does not eat immediately. R.58, Ex.1 at 4 para.
14. The evidence thus shows that, every day of
his life, Mr. Lawson must deal with the concern
that the insulin he injects to treat his illness
will itself bring about debilitating symptoms
that can only be ameliorated by immediately
eating certain foods.

      In explaining why mitigating measures should be
taken into account in defining an ADA disability,
Sutton indicated that "[a] diabetic whose illness
does not impair his or her daily activities,"
after utilizing medical remedies such as insulin,
should not be considered disabled. Id. at 483.
This statement does not mean, however, that no
diabetic can ever be considered disabled under
the ADA’s meaning. Such an approach would
contradict the Court’s view that whether a person
is disabled under the ADA is an individualized
inquiry based on the particular circumstances of
each case. See id. Moreover, as we have
explained, the particular nature of Mr. Lawson’s
diabetes, even after treatment, could be said to
significantly impair his daily activities, unlike
the situation in Sutton.

      Additionally, in Davidson v. Midelfort Clinic,
Ltd., 133 F.3d 499 (7th Cir. 1998), this court
also noted that in determining whether an
impairment can be said to "substantially limit"
the major life activity of the individual, a
court ought to consider the nature and severity
of the limitations, the actual or expected
duration of the impairment, and the actual or
anticipated long-term impact of the impairment.
See id. at 506 n.3 (citing 29 C.F.R. sec.
1630.2(j)(2)). The record before us establishes
that Mr. Lawson’s impairment is serious and
severe. He has a life-long medical history of
Type I diabetes, he suffers from a number of
diabetes-related medical problems, and the very
medication that he uses to control his diabetes
causes severe symptoms that have potentially
life-threatening consequences. The duration of
the illness also seems to be well-established.
Mr. Lawson was diagnosed with Type I diabetes
soon after birth, a disease that will remain with
him throughout his life. With respect to
prognosis, Dr. Skierczynski predicted "to a
reasonable degree of medical certainty that even
with continuous medical treatment and monitoring
of his disease, Lawson has not been able to
properly control his blood sugar levels for
several years . . . and his medical condition
will continue to deteriorate over time as a
direct consequence of his diabetes." R.58, Ex.1
at 5 para. 19.

      From all the evidence in the record, a jury
could find that the prescribed treatment Mr.
Lawson must take to survive with diabetes causes
symptoms that substantially limit the major life
activity of eating. Therefore, the district court
erred in holding that Mr. Lawson could not
establish an issue of fact regarding the first
part of his prima facie case under the McDonnell
Douglas test.
2.

      As we have noted, the ADA also defines a
disability as "a record" of a physical or mental
impairment that substantially limits one or more
of the major life activities. See 42 U.S.C. sec.
12102(2)(B). We believe that sufficient evidence
exists that there is a "record" that Mr. Lawson’s
diabetes has limited substantially his ability to
work in a broad class of jobs. See Sutton, 527
U.S. at 491.

      Mr. Lawson testified that, in his younger years,
he was "in and out of hospitals quite a bit."
R.41, Ex.3 at 32. He also indicated that he had
frequent insulin reactions that caused him to
drop items, get "the shakes, headaches," and
"occasionally . . . pass out." Id. Dr.
Skierczynski stated that Mr. Lawson continues to
experience hyperglycemia and hypoglycemia and,
indeed, endured a "severe hypoglycemic reaction"
in 1995, when he became confused and briefly lost
consciousness. R.58, Ex.1 at 2 para. 6(f). The
record also contains evidence of numerous chronic
or recurring medical conditions symptomatic of
Mr. Lawson’s diabetes.

      Additionally, there is evidence that these
maladies inhibited Mr. Lawson’s ability to
maintain any significant employment for a number
of years. Mr. Lawson maintains that soon after
his high school graduation, between 1985 and
1986, he had to quit his job with a small
construction company when he "had a serious
insulin reaction and could no longer work." R.41,
Ex.2 at 2 para. 7. Moreover, in August 1986, Mr.
Lawson’s application for SSDI benefits was
granted, and he continued to receive total
disability benefits until November 1998. During
that 12-year period, the Social Security
Administration ("SSA") reviewed Mr. Lawson’s
medical condition every two years and determined
that he continued to meet its definition of
disability, allowing Mr. Lawson continually to
receive benefits./9

      We believe that a jury could conclude, from this
evidence, that Mr. Lawson can show that a record
exists indicating that his diabetes has limited
substantially his ability to work./10

      Important in this determination is Mr. Lawson’s
receipt of disability payments under the Social
Security Act and the facts surrounding that
determination. The Social Security Act provides
income replacement to an individual who "is under
a disability," a term defined as an "inability to
engage in any substantial gainful activity by
reason of any . . . physical or mental impairment
which can be expected to result in death or which
has lasted or can be expected to last for a
continuous period of not less than 12 months." 42
U.S.C. sec. 423(d)(1)(A). To obtain an award of
SSDI benefits, Mr. Lawson had to demonstrate that
he "is not only unable to do his previous work
but cannot, considering his age, education, and
work experience, engage in any other kind of
substantial gainful work which exists in the
national economy . . . ." 42 U.S.C. sec.
423(d)(2)(A). The Supreme Court has held that
evidence of the receipt of SSDI benefits
regarding a claimed disability should not be a
dispositive factor in ADA disability
determinations. See Cleveland v. Policy Mgmt.
Sys. Corp., 526 U.S. 795, 802-05 (1999). The
Court also has indicated, however, that an SSA
determination of disability can be relevant and
significant evidence in showing that a disability
exists for ADA purposes. See id. at 806; see also
Feldman v. American Mem’l Life Ins. Co., 196 F.3d
783, 791 (7th Cir. 1999); Weigel, 122 F.3d at
467-68.

      More specifically, in Cleveland, the Supreme
Court noted that because of differences in the
mechanics of the SSA and ADA determinations of
disability, a person could be considered disabled
by the SSA but yet also be a "qualified
individual with a disability" according to the
ADA. See id. at 802-03. Yet it also explained
that the two acts were similar enough in this
regard to require a person, seeking to show that
he is "qualified" to perform a job under the
ADA’s meaning, to provide a "sufficient
explanation" as to how this does not conflict
with the SSA’s determination that he was "unable
to work." Id. at 806.

      Moreover, some of the differences cited by the
Court in Cleveland between the SSA and ADA
disability determinations are not applicable to
Mr. Lawson in deciding whether he can satisfy the
first prong of the prima facie case. The Court
noted that the SSA does not take into account the
idea of "reasonable accommodation" in its
disability determination, meaning that an
otherwise disabled person according to the SSA
could be "qualified" under the ADA when such an
accommodation is considered. Id. at 803. The
reasonable accommodation principle may be
relevant at trial regarding the second element of
Mr. Lawson’s prima facie case, whether he is
qualified for the position sought. But see
Feldman v. American Mem’l Life Ins. Co., 196 F.3d
783, 790 (7th Cir. 1999) (explaining that the
severity of a disability may change over time
such that an individual is totally disabled when
applying for SSDI, but "later [is] a qualified
individual at the time of the employment decision
disputed in an ADA suit"). However, it does not
affect the basic definition of a disability
according to the two acts. In fact, the language
considered by the SSA and the ADA in defining
disability with regard to the ability to work,
without taking into account the ADA’s reference
to reasonable accommodation, is somewhat similar.
Compare 42 U.S.C. sec. 423(d)(2)(A) (regarding
SSDI benefits, person must demonstrate that he
cannot "engage in any . . . kind of substantial
gainful work which exists in the national
economy") with Sutton, 527 U.S. at 491 (person
disabled under ADA if substantially limited in
ability to hold a "broad class of jobs").

      Additionally, the Court explained that, because
the SSA often uses presumptions in its disability
findings, particularly by automatically finding
that a disability exists if it is one of a number
of "listed impairment[s]," a determination that
someone is disabled under the SSA’s
administrative rules may not mean that he is also
disabled according to the ADA’s more fact-
intensive inquiry. Id. at 804. However, although
there was uncertainty over this point during oral
argument, it appears that Mr. Lawson’s insulin-
dependent diabetes is not a listed impairment
under the SSA and that a more individualized
determination was necessary to allow his receipt
of SSDI benefits.

      Lastly, the district court noted that Mr.
Lawson’s brief employment with two companies
between 1986 and 1991 showed that "Social
Security’s determination that Lawson should be on
total disability is not tantamount to a
conclusion that he was substantially limited in
his ability to work." R.60 at 42. We do not
disagree that Mr. Lawson’s employment in these
jobs makes it somewhat less likely that he can
demonstrate a record of disability during this
time period. However, we believe that such
limited work activity does not provide sufficient
justification to take this question out of the
hands of the jury, in light of all of the
evidence presented in this case.

      Mr. Lawson’s receipt of SSA benefits over a
twelve-year period from 1986 to 1998, and the
factual circumstances surrounding it, constitute
significant evidence that his diabetic condition
rendered him unable to work in a broad class of
jobs during that time. Although this evidence is
not dispositive of the issue, and is not the only
factor upon which we rely in this determination,
it gives force to Mr. Lawson’s claim that a
record of disability exists. Mr. Lawson’s
evidence, taken as a whole, is sufficient for a
jury to find he has a record of diabetes
substantially limiting his ability to work.
Therefore, the district court’s determination
that Mr. Lawson could not show that he was
disabled in this regard under the ADA was also in
error. This provides another reason why summary
judgment was improper on the ground that the
first element of Mr. Lawson’s prima facie case
could not be met.

C. Remaining Elements of the Prima Facie
Case
1.

      The district court not only determined that Mr.
Lawson’s claim failed because he could not
demonstrate that he was "disabled" under the ADA,
but it also noted that it "d[id] not believe
Lawson has sufficiently established the remainder
of his prima facie case." R.60 at 43 n.18
(italics omitted). Yet the court provided no
discussion of its determination in that regard;
it explained that, because in its view the case
could be decided on the disability prong of the
test, it would not "attempt to resolve" the
disputes as to the remainder of the elements of
Mr. Lawson’s prima facie case. Id. Despite the
lack of specific findings by the district court,
we may affirm its grant of summary judgment on
any ground supported by the record. See Conley v.
Village of Bedford Park, 215 F.3d 703, 710 (7th
Cir. 2000). We cannot do so here, however,
because the record demonstrates that a genuine
issue of material fact exists as to whether Mr.
Lawson can satisfy the remainder of his prima
facie case.

      The second prong of the prima facie case
requires Mr. Lawson to show that he was qualified
for the position of conductor trainee at CSX. A
determination as to whether a person is qualified
for an employment position under the ADA involves
a two-step inquiry: (1) the employee must possess
"the appropriate educational background,
employment experience, skills, licenses, etc."
and (2) he must also be able to "perform the
essential functions of the position held or
desired, with or without reasonable
accommodation." Bay v. Cassens Trans. Co., 212
F.3d 969, 974 (7th Cir. 2000) (quoting 29 C.F.R.
app. sec. 1630.2(m)); see also Bombard v. Fort
Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th
Cir. 1996). CSX does not claim that Mr. Lawson
cannot handle the physical demands of the
conductor position; instead it asserts that he
cannot satisfy the first step of this inquiry
because he did not possess a work history
evidencing responsibility, safety and
dependability.

      An employer may define the job in question, "in
terms of both its essential scope and the
qualifications required for it," Dalton v.
Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 676
(7th Cir. 1998), as long as such qualifications
are "job-related and consistent with business
necessity," Bay, 212 F.3d at 974 (quoting 42
U.S.C. sec. 12113(a); 29 C.F.R. sec.
1630.15(b)(1)). There is, on this record, a jury
question as to whether an employment history
demonstrating responsibility, safety and
dependability was a genuine requirement for the
position of conductor trainee at CSX. The record
shows that such a work history was not among the
prerequisites listed on CSX’s job description for
conductor trainee that it provided to interested
applicants at Cincinnati State. Additionally, CSX
had no guidelines defining this unstated
qualification, and the district court noted that
the company not infrequently made "exceptions" to
this criterion by hiring persons with "limited or
unskilled employment experience, applicants whose
employment could not be verified, applicants
without a high school diploma or GED, and even
applicants with criminal records including
unresolved felony convictions." R.60 at 44.

      Moreover, not only has CSX submitted the
applications of a number of people hired for the
conductor trainee position who seem not to have
possessed this CSX prerequisite, see supra note 8
and accompanying text, but Ryan also admitted
that it was not unusual for her to hire people
who did not have a "solid" employment background.
Her description of the variety of exceptions to
this requirement calls into question whether it
was actually an essential feature for a conductor
trainee applicant:

There is an exception here that business
ownership can be substituted for employment.
Part-time work with concurrent volunteer
community service can substitute for full-time
employment. Part-time work while attending
college can substitute for full-time employment.
Acceptable explanations for gaps in employments
or layoffs or downsizing [also qualifies as an
exception]. . . . If someone has been in school
and doesn’t have a solid verifiable work history,
then we’ll look at their college, what type of
school work they’ve been doing . . . .
R.39, Ex.3 at 77. Ryan went on to describe one
applicant who did not have a "solid work history"
but whom she hired because he had done
significant volunteer work in high school; when
questioned whether she asked Mr. Lawson if he had
such volunteer experience, Ryan admitted she had
not, explaining that it was up to the applicants
to "sell themselves." Id. at 77-78.

      CSX relies upon our decision in Holder v. Old
Ben Coal Co., 618 F.2d 1198 (7th Cir. 1980), for
the proposition that even though a job
qualification may not be published, it may still
be a requirement for an employment position.
Holder was a Title VII case involving the
question of whether a plaintiff was "qualified"
under the terms of that statute for an
"unskilled" mining position. Id. at 1200. There
the plaintiff had argued that because the job in
question was labeled "unskilled," it required no
particular qualifications, and thus she was
necessarily qualified for the position. See id.
We held that, although the defendant had not
listed any job requirements for the position,
that did not mean that it did not look for
certain qualifications in its applicants. See id.
However, the decision in that case turned on the
fact that the defendant, in hiring "unskilled"
workers, "primarily sought persons who had
operated mobile equipment or had worked with
heavy equipment" and "consistently sought
applicants for unskilled positions with mining
related experience," qualities the plaintiff did
not possess. Id. at 1200 & 1202. Additionally, we
explained that the term "unskilled" worker, in
the context of the defendant’s line of work, was
also simply a way for the company to describe a
job that was not a "skilled" position. A
"skilled" position was one that required
"technical ability," defined as "a minimum of six
months experience as a dragline operator, shovel
operator, machinist, electrician, welder,
mechanic, bulldozer operator, overburden driller,
or overburden shooter." Id. at 1200-01. We also
noted that the evidence "fail[ed] to show that
[the] defendant ever sought or hired anyone with
experience comparable to plaintiff’s." Id. at
1202. In contrast to the plaintiff in Holder, we
believe that Mr. Lawson has put forward enough
facts to create a jury question as to whether CSX
consistently required applicants to have a
responsible, safe, and dependable work history.
Additionally, he has shown that the company hires
persons with employment histories that are not
significantly different from the limited
experience he possessed./11

      As to the fourth element/12 of the prima
facie case, whether the circumstances surrounding
the company’s decision make it more likely than
not that Mr. Lawson’s disability was the reason
why CSX did not hire him, we also believe that a
jury question exists on these facts. Mr. Lawson
informed Ryan and Layne that he was a diabetic, a
condition that previously had rendered him unable
to work and for which he had been receiving SSDI
benefits for a number of years. CSX then failed
to hire Mr. Lawson as a conductor trainee,
despite the fact that he completed the training
program at Cincinnati State with a high quiz
average and met the listed requirements for the
position in the job description that CSX provided
to the school. The evidence also shows that CSX
was not a particularly selective employer with
regard to its hiring from programs like
Cincinnati State’s. Indeed, it hired 98% of all
successful program participants, and it hired
every other member of Mr. Lawson’s program class.
CSX claimed that Mr. Lawson’s sparse work history
was the reason it did not hire him. However, as
we have noted, there is a serious question as to
whether such a work history was truly a job
requirement for CSX, and Ryan’s admission that
she had significant discretion in making
exceptions to this requirement particularly calls
into question the importance of this criterion to
the company.

      These facts, considered together, could support
a jury’s determination that CSX more likely than
not refused to hire Mr. Lawson as a conductor
trainee because it knew that he was an insulin-
dependent diabetic. As a result, Mr. Lawson has
demonstrated a genuine issue of fact with regard
to each element of his prima facie case of
discrimination.

2.

      CSX did come forward with a legitimate,
nondiscriminatory reason for its refusal to hire
Mr. Lawson. As discussed previously, it claimed
that he lacked a prerequisite for the conductor
trainee job because he did not have a work
history evidencing responsibility, safety or
dependability and because he offered CSX no
reason to make an exception to that rule. Mr.
Lawson must then be afforded the opportunity to
demonstrate that this reason was a pretext for
discrimination. See Reeves v. Sanderson Plumbing
Prods., Inc., 120 S. Ct. 2097, 2106 (2000); St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08
(1993). Mr. Lawson may succeed in his
demonstration of pretext by offering evidence
that CSX’s "proffered explanation is unworthy of
credence." Reeves, 120 S. Ct. at 2106 (citation
omitted). For many of the same reasons why Mr.
Lawson has created a genuine issue of fact
regarding the elements of the prima facie case,
there is also sufficient evidence to permit a
jury to conclude that the reason given by CSX as
to why it did not hire Mr. Lawson was
pretextual./13 See Reeves, 120 S. Ct. at 2106
(noting that "the trier of fact may still
consider the evidence establishing the
plaintiff’s prima facie case and inferences
properly drawn therefrom . . . on the issue of
whether the defendant’s explanation is
pretextual") (citation and internal quotations
omitted). These facts are sufficient to allow a
jury to disbelieve CSX’s proffered
nondiscriminatory explanation for its action and
to "believe [Mr. Lawson’s] explanation of
intentional discrimination." Id. at 2108
(emphasis and citation omitted).

      Ultimately, Mr. Lawson has demonstrated a
genuine issue of material fact as to whether
discrimination regarding his status as an
insulin-dependent diabetic was the true
motivation for CSX’s employment decision--one
that made Mr. Lawson that exceedingly rare
employee who passed CSX’s training program for
the position of conductor trainee with flying
colors, met all of the qualifications CSX listed
for the position, and yet was not hired by the
company. We express no view on whether Mr. Lawson
ultimately will be successful at trial, but we
believe the evidence in the record demonstrates
that his case deserves to be heard by a jury.


      Conclusion

      For the reasons set forth in this opinion, the
judgment of the district court is reversed, and
this case is remanded for proceedings consistent
with this court’s opinion.

REVERSED AND REMANDED


/1 Dr. Paul Skierczynski, a board-certified
endocrinologist who has treated Mr. Lawson since
1996, described the severity and treatment of Mr.
Lawson’s medical condition. See R.58, Ex.1.

2/ Dr. Skierczynski noted that insulin is not a cure
for diabetes but is instead a tool used to treat
its symptoms. He went on to describe how insulin
can cause diabetic hypoglycemia and the physical
effects of that condition:

Too much insulin can cause hypoglycemia, a
condition where the level of glucose in the blood
is too low. Hypoglycemia can also occur when a
person has not eaten enough food or has exercised
without extra food. A person with hypoglycemia
may be nervous, shaky, weak or sweaty and
experience headaches and blurred vision.
R.58, Ex.1 at 4 para. 9.

/3 To treat these related conditions, Mr. Lawson
must take "a lot" of other medications "on top
of" his multiple insulin injections. R.41, Ex.3
at 12-13. Every day, Mr. Lawson takes three 50
mg. tablets of Captopril, a blood pressure and a
kidney medication; two doses of Lindoe, an
arthritis medication; one dose of Liptoril each
evening for cholesterol; and two different types
of insulin. Mr. Lawson also takes two doses of
Serzone each day, a medication that treats
depression; according to Dr. Skierczynski, Mr.
Lawson has a "history of attempted suicide and
ongoing current depression" that also hinders Mr.
Lawson in attempting to control his glucose
levels. R.58, Ex.1 at 2 para. 6(c).

/4 The district court did not consider evidence of
this employment experience, described in Mr.
Lawson’s affidavit, because the court believed
that it was contradicted by Mr. Lawson’s prior
deposition testimony. See R.60 at 9-10 n.4
("Unless there is a compelling reason to the
contrary, we do not permit a witness to
contradict his own deposition testimony by
subsequent affidavit created in an effort to
change the facts previously testified to."
(citing Russell v. Acme-Evans Co., 51 F.3d 64,
67-68 (7th Cir. 1995))). In his affidavit, Mr.
Lawson stated that he worked for this company
between 1985 and 1986. In his earlier deposition,
he was asked about his work history and stated
that he did no work in 1984 and 1985, with the
exception of his work at his parents’ kennel.
Although he did not mention the construction job
in this line of questioning, he was asked no
questions regarding his work history generally in
1986, only specific questions about his
employment with particular companies. To the
extent that this construction work may have
occurred during 1986, Mr. Lawson’s affidavit does
not necessarily contradict his deposition
testimony in this regard. Given the ambiguity of
the deposition testimony, we cannot say that the
subsequent affidavit directly contradicts Mr.
Lawson’s statements in the deposition. Therefore,
we shall consider evidence of this employment
experience in this appeal.

/5 CSX hires successful graduates of the Cincinnati
State training program as conductor trainees,
with the expectation that they will be promoted
to the job of conductor. A railroad conductor at
CSX "coordinates activities of train crews
engaged in transporting freight" and "supervises
the activities of switch engine crews engaged in
switching railroad cars within a yard or
industrial plant to facilitate the loading and
unloading of cars and the making up and breaking
up of trains." R.38 at 3-4 para.para. 9-10. The
conductor’s job is described as "dangerous and
physically demanding" as "[c]onductors work
outdoors much of the time, with many
distractions, and they perform activities on and
around moving equipment." Id. at 4 para.para. 11-
12. Although CSX does not own or operate the
Cincinnati State training program, or select
program participants, there is a close connection
between CSX and the program. For example, CSX
provides training materials for the program, CSX
employees have served as instructors in the
program, and "[a]ll enrollees in good standing in
the [program] are offered an interview for a
conductor trainee position with CSX." Id. at 5
para. 30.

/6 During the conductor training program, CSX
interviews participants in good standing to fill
job openings as conductor trainees. Job offers
are "contingent upon successful completion of the
railroad conductor course." R.38 at 6 para. 32.

/7 Although CSX disagrees with much of Mr. Lawson’s
recollection as to what was said about his
diabetes during this interview, a few specifics
are not in dispute. Both parties agree that: (1)
Mr. Lawson informed Ryan and Layne that he had
diabetes, (2) he represented that his condition
had prevented him from working during at least
some years in the past, and (3) at the time of
the interview he was physically able to perform
the job of conductor at CSX.

/8 During discovery, CSX produced the applications
of successful candidates for the conductor
trainee position who listed previous employment
consisting of only a few months of very limited
work experience. These candidates included the
following examples: a man who had worked 3
months part-time moving and assembling furniture;
another who had worked one month part-time as a
lawn service helper, one month part-time as a
busboy/dishwasher, and two months part-time as a
dishwasher; another who had worked 10 months
part-time driving a bread delivery truck; another
who had worked full-time one summer as a foreman
on a road crew; another who had worked one month
full-time on a farm, and one month part-time as a
supermarket stocker; and another who had worked
four months full-time stocking groceries.

/9 During this time, Mr. Lawson actively sought
employment, but he was actually employed for only
two brief periods: in the summer of 1988 he
worked for a moving company, and in 1991 he
maintained a three-month, part-time job with a
salvage company.
/10 Along with a showing that a record of a
substantially limiting impairment exists, a
plaintiff must also demonstrate that the employer
knew of that record. See Davidson, 133 F.3d at
510 n.8. The facts of this case could support a
finding that CSX was aware of Mr. Lawson’s
disability and the effect that it had on his work
history. During his job interview with CSX, Mr.
Lawson maintains that he told CSX representatives
Ryan and Layne that his lack of work experience
was due to his diabetic condition, and he
explained that he had been "totally disabled for
a number of years," R.41, Ex.2 at 3 para. 16, and
was presently receiving disability benefits.

/11 We offer no opinion on the question of whether,
even if CSX could show that a work history
demonstrating responsibility, safety and
dependability was a bona fide qualification for
the conductor trainee job, that quality "bears
more heavily on disabled than on other workers
and is not required by the necessities of the
business or activity in question." Matthews v.
Commonwealth Edison Co., 128 F.3d 1194, 1195-96
(7th Cir. 1997); see also 29 C.F.R. sec. 1630.10.
We also make no judgment regarding whether Mr.
Lawson has waived such a disparate impact claim,
as CSX alleges. See Appellee’s Brief at 42-43.

/12 The parties do not dispute the satisfaction of
the third element of the test, that Mr. Lawson
suffered an adverse employment action.

/13 We also note, as the district court described in
its opinion, that there is evidence suggesting
that CSX has produced other explanations in the
past for the decision not to hire Mr. Lawson,
some of which have not been accurate. See R.60 at
44 n.19. For example, Ryan initially claimed that
her inability to verify the work history that Mr.
Lawson had provided in his application was a
factor in CSX’s denial of his application. Ryan
later admitted, however, that the verifiable
nature of Mr. Lawson’s previous employment played
no role in her ultimate employment decision.
Indeed, she did not attempt to substantiate Mr.
Lawson’s work history before informing him that
he would not be hired by CSX. Next, in its
response to Mr. Lawson’s earlier complaint filed
with the Indiana Civil Rights Commission
("ICRC"), CSX submitted to the ICRC that not only
its inability to verify Mr. Lawson’s work
history, but also Mr. Lawson’s misrepresentation
of that work history, were factors in its
employment decision. However, CSX later admitted
that concerns about misrepresentation were not at
issue at the time of its decision on Mr. Lawson’s
status; only after that decision had been made
did CSX obtain evidence that Mr. Lawson may have
misrepresented his past employment. Lastly, Mr.
Lawson claims that Ryan told him that another
reason for her decision was that Mr. Lawson did
not have three years of continuous employment at
the time he interviewed for the job. Ryan
disputes this charge, maintaining that this too
was not a reason for her decision not to hire Mr.
Lawson. CSX’s shifting justifications for its
actions in this dispute also provide another
basis for concern regarding the company’s
credibility.




      Easterbrook, Circuit Judge, concurring.   I join the
court’s opinion but add a thought about the
significance of the disability benefits that
Lawson used to receive.

       Lawson contends that the award of disability
benefits demonstrates (or at least strongly
implies) that he is disabled for purposes of the
ADA. To the extent that these benefits (and the
administrative determination underlying them)
show "a record of such an impairment", 42 U.S.C.
sec.12102(2)(B), this contention is
straightforward. The ADA does not let an employer
use past disability as a reason for refusing to
evaluate current abilities; thus it could not say
that it does not hire persons who have ever
received disability benefits. CSX did not make
this its official policy but came close by
announcing that it wanted to hire only persons
with steady work histories. If Lawson could not
work in the past (and was receiving disability
benefits on that account) but has improved and
can work now (as the Social Security
Administration believes), then CSX’s work-history
filter discriminates on account of Lawson’s
"record of impairment" memorialized in the award
of disability benefits. Although CSX contends
that it made exceptions (and would have allowed a
year of flipping burgers to suffice), on summary
judgment we must draw the inferences in Lawson’s
favor.

      To the extent that Lawson believes the decisions
of the Social Security Administration to have any
other significance, I am skeptical. Cleveland v.
Policy Management Systems Corp., 526 U.S. 795
(1999), holds that the definition of disability
under the Social Security program differs from
the definition of disability under the ADA, so
that receipt of Social Security benefits does not
necessarily establish that a person is not "a
qualified individual with a disability" under the
ADA. See 42 U.S.C. sec.12112(a). Although the
difference in legal standards-- and in the
identity of the decisionmaker (an administrative
law judge versus a federal court)--means that the
award of benefits is not conclusive, the
representations a person makes in an effort to
obtain benefits may be significant. A person who
tells the SSA that he is bedridden, for example,
can’t pursue an ADA claim that depends on his
being spry. This is one point of Wilson v.
Chrysler Corp., 172 F.3d 500 (7th Cir. 1999),
which held that an employee’s representation to
the Social Security Administration that she is a
paranoid schizophrenic precluded her argument in
employment litigation that she is mentally stable
and fit to work. Neither Lawson nor CSX seems
interested in making anything of Lawson’s
representations to the agency, however; instead
Lawson wants to use the unelaborated award of
benefits to show that he is today a person "with
a disability" under sec.12112(a), and that step
is hard to reconcile with Cleveland.

      Treating the SSA’s decision as something that
matters independent of "a record of impairment"
would send district courts (and juries) on a lot
of byways. If a grant of disability benefits
boosts an employee’s claim, then a denial also
would be admissible at the employer’s behest.
Judges then would need to tell juries what the
SSA’s standards are, how they differ from the
standards under the ADA, what to make of the fact
that Social Security proceedings are non-
adversarial (and that employers are not parties
to them), and so on. Cleveland suggests that this
is a path best avoided. Presumably the ALJ’s
opinion granting (or denying) disability benefits
would be admissible and become a topic of debate
at trial; and if benefits were granted (or
denied) without an ALJ’s involvement, things might
be even murkier.

      Litigants often try to introduce agency
dispositions in suits under Title VII, but courts
have concluded that neither a finding by the EEOC
that discrimination occurred, nor a finding of no
discrimination, has legal consequences or would
promote accurate decisionmaking by juries. Lang
v. Kohl’s Food Stores, Inc., 217 F.3d 919 (7th
Cir. 2000), collects a few of these decisions. I
don’t see any reason to treat agency
determinations differently under the ADA. Using
disability benefits solely to demonstrate "a
record" of impairment avoids these problems. And
if the employer concedes that the plaintiff has
"a record" of impairment, then it should be
possible to keep the administrative decision out
of evidence altogether. Cf. Old Chief v. United
States, 519 U.S. 172 (1997).
