240 F.3d 1110 (D.C. Cir. 2001)
Jimmy L. Duncan, Appelleev.Washington Metropolitan Area Transit Authority,  Appellant
No. 99-7073
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued En Banc September 27, 2000Decided March 2, 2001

[Copyrighted Material Omitted]
Appeal from the United States District Court  for the District of Columbia (No. 95cv02360)
Bruce P. Heppen argued the cause for the appellant. Cheryl C. Burke, Robert J. Kniaz and Mark F. Sullivan were  on brief.
Sally Dunaway and Melvin Radowitz were on brief for  amici curiae American Association of Retired Persons and National Employment Lawyers Association.  Paula A.  Brantner entered an appearance.
Ann Elizabeth Reesman was on brief for amicus curiae  Equal Employment Advisory Council.
Bruce M. Bender argued the cause for the appellee. Suzanne L. Lawrence entered an appearance.
Bill Lann Lee, then Assistant Attorney General, Jessica D.  Silver and Thomas E. Chandler, Attorneys, United States  Department of Justice, Philip B. Sklover, Associate General  Counsel, and Barbara L. Sloan, Attorney, Equal Employment Opportunity Commission, were on brief for amici curiae United States of America and The Equal Employment  Opportunity Commission.
Before:  Edwards, Chief Judge;  Silberman,* Williams,  Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel  and Garland, Circuit Judges.


1
Opinion for the court filed by Circuit Judge Henderson.


2
Concurring opinion filed by Circuit Judge Randolph, with  whom Circuit Judges Williams and Sentelle join.


3
Concurring opinion filed by Circuit Judge Tatel.


4
Dissenting opinion filed by Chief Judge Edwards.

Karen LeCraft Henderson, Circuit Judge:

5
Appellant Washington Metropolitan Area Transit Authority (WMATA)  challenges the district court's denial of its post-trial motion  for judgment as a matter of law in this discrimination action  brought by appellee Jimmy Duncan under the Americans  with Disabilities Act, 42 U.S.C. §§ 12101 et seq., (ADA). Because Duncan offered no significantly probative evidence  below of the number and types of positions available in his  local job market so as to demonstrate that his back impairment substantially limits his ability to work, we hold that he  failed to establish he was "disabled" under the ADA.  The  district court therefore erred in denying WMATA's motion.


6
Duncan worked at WMATA for seven years.  He began his  career there as a custodian in May 1986 and became an  Automated Fare Collector (AFC) parts runner in November  1991.  In December 1992 Duncan was involuntarily transferred to the Elevator/Escalator branch [ELES] where he  was again employed as a parts runner.  As a custodian,  Duncan was required to lift between 75 and 100 pounds, as an  AFC parts runner only about 30 pounds and as an ELES  parts runner over 100 pounds.  On December 19, 1992, his  third night in ELES, Duncan, who had suffered a series of  back injuries between 1989 and 1992, reinjured his back.  As  a result he was unable to continue in his heavy lifting ELES  job.  Duncan's supervisor informed him no light lifting jobs  were then available and Duncan was placed briefly on sick  leave and then on leave without pay.  He twice applied for a  vacant AFC parts runner position, in March and July 1993,  but without success.


7
In August 1993 Duncan received a letter from his supervisor instructing him to meet with WMATA's Associate Medical  Director, Dr. Mary O'Donnell, and to take with him all of his  relevant medical records, including a statement from his  treating physician.  Duncan consulted his treating physician  who referred him to a neurologist.  Because the neurologist  was out of town, Duncan was unable to obtain a statement  from him before his August 19, 1993 meeting with O'Donnell. At the meeting O'Donnell told Duncan he would probably be  discharged, apparently because he had failed to produce  documentation of his current condition.  Duncan was discharged in October 1993.  In February 1994 he took a parttime light lifting position with Hertz Corporation.


8
On December 22, 1994 Duncan filed suit in the district  court alleging WMATA violated the ADA by discharging him  on account of a disability and by failing to reasonably accommodate his disability.  After a five-day trial the jury returned  a verdict on May 27, 1997, finding WMATA violated the ADA  as alleged and awarding Duncan compensatory damages of  $125,000 on his wrongful termination claim and $125,000 on  his reasonable accommodation claim.  WMATA filed a posttrial motion for judgment as a matter of law or, alternatively,  for a new trial.  The district court denied the motion in a  memorandum opinion and order filed March 26, 1998.  In  subsequent orders the court awarded Duncan reinstatement  with back pay, attorney's fees and costs and pre-trial interest. On appeal WMATA challenges the denial of its post-trial  motion and the various awards.


9
"This court reviews de novo the trial court's denial of a  motion for judgment as a matter of law or, in the alternative,  for a new trial."  Curry v. District of Columbia, 195 F.3d 654,  658-59 (D.C. Cir. 1999) (citing Swanks v. WMATA, 179 F.3d  929, 933 (D.C. Cir. 1999)).  We will not disturb a jury verdict  "unless the evidence and all reasonable inferences that can be  drawn therefrom are so one-sided that reasonable men and  women could not disagree on the verdict."  Id. at 659 (quoting Smith v. Washington Sheraton Corp., 135 F.3d 779, 782  (D.C. Cir. 1998)).  Evidence supporting the verdict, however,  must be "more than merely colorable;  it must be significantly  probative."  Id. (quoting Smith, 135 F.3d at 782).  Applying  this standard, we conclude Duncan failed to produce significantly probative evidence that he was "disabled" under the  ADA and that the verdict and awards below must therefore  be vacated.


10
In an ADA case with no direct evidence of discrimination  and where the defendant denies that its decisions were motivated by the plaintiff's disability, this court applies the familiar burden-shifting framework set out in McDonnell Douglas  Corp. v. Green, 411 U.S. 792 (1973).  See Marshall v. Federal  Express Corp., 130 F.3d 1095, 1099 (D.C. Cir. 1997).  Under  the McDonnell Douglas framework an ADA plaintiff must  prove that "he had a disability within the meaning of the  ADA, that he was 'qualified' for the position with or without a  reasonable accommodation, and that he suffered an adverse  employment action because of his disability."  Swanks v.  WMATA, 179 F.3d 929, 934 (D.C. Cir. 1999).  The ADA  defines a "disability" as "a physical or mental impairment  that substantially limits one or more of the major life activities of [an] individual."  42 U.S.C. § 12102(2)(A).  Throughout this litigation, Duncan has maintained that his degenerative disc disease, which limits his lifting to no more than 20  pounds, fits this definition because it is a physical impairment  that limits his major life activity of "working."  WMATA  responds that Duncan failed to establish at trial that his back  condition in fact "substantially limits" his ability to work.1 We agree.


11
In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999),  the United States Supreme Court provided guidance on the  meaning of the phrase "substantially limits":


12
The ADA does not define "substantially limits," but "substantially" suggests "considerable" or "specified to a large degree." ...


13
When the major life activity under consideration is that of working, the statutory phrase "substantially limits" requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs....  To be substantially limited in the major life activity of working, then, 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.


14
527 U.S. at 491-92 (citation omitted).  This passage makes  clear that whether an impairment substantially limits the  major life activity of working depends primarily on the availability of jobs for which the impaired person qualifies.  The  Supreme Court further instructed that this is "an individualized inquiry," id. at 483 (citing Bragdon v. Abbott, 524 U.S.  624 (1998)), and that courts should consider such factors as  "the geographical area to which the individual has reasonable  access and 'the number and types of jobs utilizing similar  training, knowledge, skills or abilities, within the geographical  area, from which the individual is also disqualified,' " id. at  491-92 (citing & quoting 29 C.F.R.  pt. 1630, App. S 1630.2(j)(3)(ii)(A), (B)2  In sum, to establish substantial  limitation of working activity under the ADA, a plaintiff must  allege and prove that in his particular circumstances, taking  into account the appropriate factors, his impairment prevents  him from performing a "substantial class" or "broad range" of  jobs otherwise available to him.


15
Duncan asserts he sufficiently demonstrated substantial  limitation through expert medical testimony that his back  condition and lifting restriction are permanent and through  evidence of his age, limited skills, education and experience  and of his inability to find comparable employment after his  discharge.  The cited evidence tells us little or nothing,  however, about the number and types of jobs in the Washington, D.C. area for which Duncan is qualified and which are  therefore available to him.  There may be numerous local  positions that do not require heavy or medium lifting--such  as the AFC parts runner position at WMATA for which  Duncan twice applied after his injury and for which he  acknowledges in his complaint he was qualified.  See Amended Complaint at 3, 4 (filed March 6, 1996).  Or there may be  very few such jobs.  The jury was left in the dark with no  significantly probative evidence addressing the factors set out  in Sutton.3  Duncan points to his own testimony that he made  "inquiries" about or applied for truck driving jobs but that  they all required heavy lifting.4 This sparse anecdotal evidence, however, cannot support the required jury finding that  Duncan was substantially limited in his ability to find work  because his impairment disqualified him from a substantial  class or broad range of jobs in the Washington area.  At most  Duncan's testimony shows that he was not qualified for the  particular kind of job--truck driver--for which he chose to  apply.  It tells us nothing about whether he was qualified for  the many other jobs in the Washington metropolitan employment pool.  See Sutton, 527 U.S. at 492 ("To be substantially  limited in the major life activity of working, then, one must be  precluded from more than one type of job, a specialized job,  or a particular job of choice.").  Without evidence of the  number and kinds of jobs available to Duncan the jury had no  basis to find he was disqualified from a substantial class or  broad range of them.  Because Duncan failed to offer evidence demonstrating he was substantially impaired in working, the jury's liability verdict cannot stand.


16
In concluding that Duncan failed to meet his evidentiary  burden, we hold that the ADA requires a plaintiff in Duncan's  position to produce some evidence of the number and types of  jobs in the local employment market in order to show he is  disqualified from a substantial class or broad range of such  jobs;  that is, the total number of such jobs that remain  available to the plaintiff in such a class or range in the  relevant market must be sufficiently low that he is effectively  precluded from working in the class or range.  See Sutton,  527 U.S. at 491-92.  The approach we adopt is consistent with  most other circuits'.  See Santiago Clemente v. Executive  Airlines, Inc., 213 F.3d 25, 32-33 (1st Cir. 2000) (concluding  former flight attendant failed to show temporary hearing loss  was disability under ADA because she offered "no evidence of  how many jobs call for this ability, or that she was precluded  from any class of jobs");  Webb v. Clyde L. Choate Mental  Health & Dev. Ctr., 230 F.3d 991, 997 (7th Cir. 2000) (upholding summary judgment against psychologist suffering from  severe asthma, osteoporosis, and a weakened immune system  because he "ha[d] not presented evidence that his condition  prevents him from performing a class of jobs");  Taylor v.  Nimock's Oil Co., 214 F.3d 957, 961 (8th Cir. 2000) (concluding former cashier with 40 hour week and 10 pound carry  limit did not establish disability because she "presented no  evidence to create a genuine issue of material fact about  whether she could perform a class of jobs with her restrictions") (citing Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th  Cir. 1999);  Helfter v. United Parcel Serv., Inc., 115 F.3d 613,  617-18 (8th Cir. 1997));  Colwell v. Suffolk County Police  Dep't, 158 F.3d 635, 645 (2d Cir. 1998) ("Without specific  evidence about 'the kinds of jobs from which [an] impaired  individual is disqualified,' the jury could not perform the  careful analysis that is necessary to determine that [a plaintiff] was substantially limited in his ability to work.") (quoting  Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir.  1994));  Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207  (8th Cir. 1997) (holding "general lifting restriction imposed by  a physician, without more, is insufficient to constitute a  disability within the meaning of the ADA" with regard to  major life activity of working);  see also Williams v. Channel  Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir. 1996)  ("hold[ing], as a matter of law, that a twenty-five pound lifting  limitation--particularly when compared to an average person's abilities--does not constitute a significant restriction on  one's ability to lift, work, or perform any other major life  activity");  Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir.  1996) ("[I]nability to perform heavy lifting does not render a  person substantially limited in the major activities of lifting or  working.");  McKay v. Toyota Motor Mfg., U.S.A., Inc., 110  F.3d 369, 373 (6th Cir. 1997) (holding woman with carpal  tunnel syndrome and 20-pound lifting not disabled because  "at best, her evidence supports a conclusion that her impairment disqualifies her from only the narrow range of assembly  line manufacturing jobs that require repetitive motion or  frequent lifting of more than ten pounds").  But see Wellington v. Lyon County Sch. Dist., 187 F.3d 1150, 1155 (9th Cir.  1999) (holding evidence that impairment disqualified plaintiff  from "metal fabrication, welding, ... heavy activities, carpentry, ... the use of a variety of tools to do maintenance and  repairs, et cetera" coupled with his anecdotal testimony he  had to quit one plumbing job because he was "in too much  pain to even continue" raised triable issue of fact on disability);  cf. Burns v. Coca-Cola Enters., Inc., 222 F.3d 247 (6th  Cir. 2000) (upholding determination plaintiff was disabled  because of district court's finding impairment "precluded him  from performing at least 50% of the jobs that he was qualified  to perform given his educational background and experience"  where finding was apparently based solely on 23-pound lifting  limit and limited education and work experience);  Mullins v.  Crowell, 228 F.3d 1305, 1314 n.18 (11th Cir. 2000) ("[E]xpert  vocational evidence, although instructive, is not necessary to  establish that a person is substantially limited in the major  life activity of working.  Furthermore, a plaintiff could testify  from his or her own extensive job search whether other jobs  that he or she could perform were available in the geographical area.").  Further, the evidentiary burden we place on  plaintiffs is not onerous.  They need not necessarily produce  expert vocational testimony, although such evidence might be  very persuasive.  In the proper case simple government job statistics may suffice.5  We leave it to counsel in future ADA  cases to explore the various forms such evidence may take. Here we hold only that Duncan failed to produce any sort of  significantly probative evidence on the subject.


17
For the preceding reasons, we reverse the district court's  denial of WMATA's motion for judgment as a matter of law. We further vacate the judgment on the jury verdict entered  May 29, 1997 and the district court's post-trial orders awarding reinstatement, back pay, attorney's fees and costs and  prejudgment interest.


18
So ordered.



Notes:


*
 Judge Silberman took senior status on November 1, 2000 but  continues to participate as a member of this en banc court pursuant  to 28 U.S.C. § 46(c)(2).


1
 WMATA concedes that Duncan has a physical impairment and,  until its en banc brief, did not dispute that working is a"major life  activity" under the ADA.  In light of our holding that Duncan did  not demonstrate his impairment substantially limits his work activity, we need not and do not consider WMATA's belated assertion in  its supplemental en banc briefs that working is not a major life  activity but we assume arguendo that it is.  Cf. Sutton v. United  Air Lines, Inc., 527 U.S. 471, 492 (1999) (making same assumption,  while noting that "there may be some conceptual difficulty in  defining 'major life activities' to include work").


2
 The Sutton Court declined to resolve whether deference is owed  to the Equal Employment Opportunity Commission's ADA regulations, 527 U.S. at 480, but quoted this regulation's factors approvingly, id. at 491-92.


3
 We note that social security disability cases have found lifting  restrictions not to constitute a disability.  See, e.g., Cruze v. Chater, 85 F.3d 1320, 1322 (8th Cir. 1996) (affirming denial of benefits to  claimant who "possessed the residual functional capacity to perform  the physical exertional and nonexertional requirements of work  except for lifting and carrying of more than 20 pounds occasionally  or 10 pounds frequently" and who, according to a vocational expert,  therefore "could still perform work as a light cleaner, office helper  or messenger, or mail clerk," which positions "exist in significant  numbers in the national economy");  Lee v. Sullivan, 988 F.2d 789,  792 (7th Cir. 1993) (affirming denial of benefits to claimant based on  vocational testimony that person "with a tenth grade education,  average to borderline intellect, and depression who can perform  sedentary work with an option for alternate sitting and standing ...  could be a cashier in a convenience store, a security guard, and a  parking lot attendant" and that "there were approximately 1,400 of  these positions in the greater Milwaukee metropolitan area which  has a work force of 750,000").


4
 Duncan testified he could not remember "any other types of  jobs or specifics about any types of jobs that [he] applied for." Joint App. 136-38.


5
 Such statistics are readily available on the worldwide web.  For  example, a number of different reports on job requirements in  specific local labor markets are available at low cost from the  website www.occustats.com.



19
Randolph, Circuit Judge, with whom Circuit Judges  Williams and Sentelle join, concurring:


20
I agree with Judge  Henderson's opinion for the court.  Although I also agree  that the court should not decide whether working is a "major  life activity" within the meaning of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12102(2), see maj. op. at 5  n.1, I think we should recognize the difficulties the issue  presents.


21
The Supreme Court in Sutton v. United Air Lines, 527  U.S. 471, 492 (1999), also avoided deciding the question by  "[a]ssuming without deciding that working is a major life  activity...."  The Court's statement indicates that it thought  the question was an open one.  Before Sutton this was far  from certain.  School Board of Nassau County v. Arline, 480  U.S. 273 (1987), a case arising under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, stated in dicta that a person could  be considered a handicapped individual if the person suffered  from a physical impairment such as cosmetic disfigurement. Even though this sort of impairment "might not diminish a  person's physical or mental capacities," it "could nevertheless  substantially limit that person's ability to work as a result of  the negative reactions of others to the impairment."  480 U.S.  at 283.  To support its point, the Court cited regulations  implementing the Rehabilitation Act, which listed "working"  as a major life activity.  Id. at 283 n.10.


22
A section of the ADA provides that "nothing in this chapter  shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973  ... or the regulations issued by Federal agencies pursuant to  such titles."  42 U.S.C. § 12201(a).  On the basis of this  section, Bragdon v. Abbott, 524 U.S. 624, 632 (1998), held that  the Court must "construe the ADA to grant at least as much  protection as provided by the regulations implementing the  Rehabilitation Act."


23
There may be ways of explaining the apparent inconsistency between Sutton on the one hand, and Bragdon and Arline  on the other.  Sutton, for instance, referred to EEOC regulations suggesting that "working be viewed as a residual life  activity, considered, as a last resort, only '[i]f an individual is  not substantially limited with respect to any other major life activity.' "  527 U.S. at 492 (emphasis omitted) (quoting 29  C.F.R. pt. 1630, App. § 1630.2(j) (1998)).  Sutton also identified "a conceptual difficulty":  if a person claims to be excluded from work because of his impairment, it is circular for him  to answer--when asked the nature of his impairment--"exclusion from work."  Id.


24
Another set of problems stems from these circumstances: to make "working" a major life activity is to create a residual  category, one that matters only if the individual is not suffering from some serious physical or mental impairment. (If the  individual is so suffering there is no need to consider working  as a separate category.  See Taylor v. Phoenixville Sch.  Dist., 174 F.3d 142, 152 (3d Cir. 1999);  McAlindin v. County  of San Diego, 192 F.3d 1226, 1233 (9th Cir. 1999).)  When  "working" is used in this way, the existence of a disability will  necessarily turn on factors other than the individual's physical  characteristics or medical condition.  To illustrate, suppose  there is an economic downturn and unemployment is high. Then more people will be found to be disabled as compared  with a period when the gross domestic product is growing and  unemployment is low.  Why?  Because the less likely it is  that a person can find work the more likely that he is  substantially limited in the major life activity of working-that in other words he suffers from a disability.  See Sutton,  527 U.S. at 491.  One must wonder whether people considered disabled in a poor economy can become not disabled if  the economy turns around and more jobs become available. One must wonder as well how this can be squared with the  ADA's express purpose of supplying "clear, strong, consistent, enforceable standards addressing discrimination against  individuals with disabilities."  42 U.S.C. § 12101(b) (italics  added).  Geographic disparity also cannot be avoided.  Take  two identical individuals with identical impairments working  for the same company.  One works in a sparsely populated  rural area, the other in a large metropolis.  The individual in  the rural area would wind up being classified as disabled  under the ADA more readily than the person in the major  metropolitan area where more jobs are available.


25
From the employer's point of view, the standards will  hardly appear "clear," 42 U.S.C. § 12101(b).  When "working" is the allegedly impaired major life activity, how is the employer to determine whether the employee is disabled (and  thus entitled to a reasonable accommodation)?  The employer  certainly cannot tell just by looking at the employee, or by  consulting medical records, or by insisting upon a physical  examination.  Disability will depend on the job market, on  whether there are jobs in some undefined region "utilizing an  individual's skills (but perhaps not his or her unique talents),"  Sutton, 527 U.S. at 492, jobs for which the employee is  qualified.  Exactly how the employer is to make that determination is far from certain.  Suppose the employer does not  acquire the information.  Could the employer still be found to  have discriminated "because of" a disability, as the ADA  requires for liability, if the employer does not know the  employee's job prospects?  See 42 U.S.C. § 12112(a).


26
The problems just mentioned, and others, need to be  considered before we decide whether to join the two other  circuits which, after Sutton, treat "working" as a major life  activity under the ADA.  See Bartlett v. New York State Bd.  of Law Exam'rs, 226 F.3d 69, 80 (2d Cir. 2000);  EEOC v. R.J.  Gallagher Co., 181 F.3d 645, 654 (5th Cir. 1999).

Tatel, Circuit Judge, concurring:

27
I agree that the verdict in Duncan's favor cannot stand.  I  write separately to explain my view of the precise nature of  the burden that Sutton v. United Air Lines, Inc., 527 U.S.  471 (1999), places on ADA plaintiffs.


28
Sutton describes the standard for proving that an impairment " 'substantially limits' ... the major life activity of  working":


29
When the major life activity under consideration is that of working, the statutory phrase "substantially limits" requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.  Reflecting this requirement, the EEOC uses a specializeddefinition of the term "substantially limits" when referring to the major life activity of working:


30
"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."  29 C.F.R. § 1630.2(j)(3)(i).


31
... To be substantially limited in the major life activity of working, then, 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.


32
527 U.S. at 491-92.  This passage gives plaintiffs attempting  to prove disability on the basis of a substantial limitation in  the major life activity of working a choice:  they may demonstrate that their impairment excludes them from "either a  class of jobs or a broad range of jobs in various classes."  As  the penultimate sentence explains, plaintiffs attempting to  prove exclusion from a "class of jobs" must show that their  impairment disqualifies them from jobs utilizing their skills. In Sutton, for example, the Supreme Court said that airline  pilots who have impairments that preclude them from working as global pilots but who can nonetheless hold "a number  of other positions utilizing [their] skills, such as regional pilot  and pilot instructor" cannot claim to be substantially limited  in the major life activity of working.  Id. at 493.  According  to the final sentence in the Sutton passage, plaintiffs attempting to prove exclusion from a "broad range of jobs"--the  second of the two options--must show that there is not a  "host" of different types of jobs available to them.  As an  example of a person who might claim to be precluded from a  broad range of jobs, the EEOC Interpretive Guidance describes an individual who "has an allergy to a substance found  in most high rise office buildings, but seldom found elsewhere, that makes breathing extremely difficult."  29 C.F.R.  pt. 1630, App. § 1630.2(j).  Of course, after Sutton, such a  person would also have to show that jobs not in high rise  buildings are unavailable, leaving some doubt as to whether  plaintiffs would any longer attempt to make such a claim.


33
Duncan claimed only exclusion from a class of jobs.  To  prove his case, Duncan thus needed to show that the class of  jobs from which he alleged preclusion was "broad" or "substantial," and not limited to jobs utilizing his "unique talents." Sutton, 527 U.S. at 491-92.  Presenting evidence of his back  injury and lack of formal training or education, he proved  only his inability to handle jobs requiring heavy lifting.  As I  read Sutton, he also had to show that he could not handle the  broader class of jobs requiring manual labor, of which heavy  lifting is but a subclass.


34
Duncan could have satisfied his burden of proof by producing specific evidence either that he applied unsuccessfully for  non-lifting manual labor jobs (thus demonstrating that he was  unqualified for those jobs for some other reason) or that most  manual labor jobs require heavy lifting.  He failed to do  either, testifying only as follows:


35
Q: When you were on unemployment did you make any inquiries with any employers that had vacancies for truck driver positions to determine if you could do the job?


36
A: Yes.  I would--I would check the vacancies--I mean the unemployment, and I would call places, and jobs that I thought I could do I would ask them what the job entailed, and if it was to the point where I know I wouldn't be able to do a lot of lifting I wouldn't--I wouldn't inquire no more about it.


37
Q: Did any of the truck ... driving types of jobs that you applied for, did they require heavy lifting?


38
A: Yeah, most all of them basically. ...


39
Q: Mr. Duncan, in addition to truck driving positions that you may have made some inquiries about, do you recall any other types of jobs or specifics about any types of jobs that you applied for during that period of unemployment?


40
A: I can't remember.


41
Trial Tr. At 130-131 (May19, 1997).  Absent more "significantly probative" evidence, see Smith v. Washington Sheraton Corp., 135 F.3d  779, 782 (D.C. Cir. 1998), no reasonable jury could have  concluded that Duncan was unable to perform manual labor,  i.e., that he was excluded from a substantial class of jobs. From his testimony, the jury could have concluded that all  truck driving jobs require heavy lifting, but the record contains nothing from which the jury could have concluded that  other manual labor jobs likewise require heavy lifting.


42
While I thus agree that the verdict in Duncan's favor  cannot stand, I think it important to emphasize that although  Sutton requires Duncan to have proven an inability to perform manual labor, it does not also require him to have shown  an inability to qualify for non-manual labor jobs in the area in  which he lives.  Sutton would require such evidence of plaintiffs seeking to prove disability based on exclusion from a  "broad range of jobs," but that requirement does not apply to  plaintiffs like Duncan who seek to prove disability on the  basis of exclusion from a "class of jobs."  527 U.S. at 492. Requiring such proof of plaintiffs like Duncan, moreover,  would convert the ADA inquiry from asking whether plaintiffs are precluded from classes of jobs to whether, as in the  Social Security disability benefits context, they are unable to  work at all.  See 42 U.S.C. § 423(d)(1)(A) (defining "disability" under the Social Security Act as "inability to engage in  any substantial gainful activity by reason of any medically  determinable physical or mental impairment") (emphasis added).  Consider a surgeon claiming to be disabled under the  ADA because a physical or mental impairment precludes him  from a class of jobs.  Like the airline pilot plaintiffs in  Sutton, although it would not be enough for the surgeon to  show that he could no longer perform surgery--he would  need to show that he was unable to practice medicine at all-nothing in Sutton requires that he demonstrate the absence  of a "host" of non-medical jobs that he could handle, such as  office administration, food service, or maintenance.  527 U.S.  at 492.  In other words, the surgeon could establish disability  under the ADA by showing only that, as Sutton puts it, "jobs  utilizing [his] skills (but perhaps not his ... unique talents)"  were unavailable.  Id.


43
So too Duncan.  He need not have demonstrated preclusion  from non-manual labor jobs;  proving exclusion from the class  of jobs requiring manual labor would have been enough. Because he failed to show even this, I concur.

Harry T. Edwards, Chief Judge, dissenting:

44
Congress passed the  Americans with Disabilities Act ("ADA") because, "historically, society has tended to isolate and segregate individuals  with disabilities, and, despite some improvements, such forms  of discrimination against individuals with disabilities continue  to be a serious and pervasive social problem."  42 U.S.C.  § 12101 (a)(2)(1994).  The ADA was enacted "to provide a  clear and comprehensive national mandate for the elimination  of discrimination against individuals with disabilities," and "to  provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1) & (2)(1994).


45
The ADA generally provides thatno covered [employer] shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.


46
42 U.S.C. § 12112 (a)(1994).  A "qualified individual with a  disability" includes persons "with a disability who, with or  without reasonable accommodation, can perform the essential  functions of the employment position that such individual  holds or desires."  42 U.S.C. § 12111(8)(1994).  And "reasonable accommodation[s]" include "job restructuring, part-time  or modified work schedules, [and] reassignment to a vacant  position."  42 U.S.C. § 12111(9)(1994).


47
In light of the general purposes and standards enunciated  in the ADA, appellate review of this case should have been a  simple matter.  The plaintiff/appellee, Jimmy Duncan, was in  a job that everyone--including his attending physician, doctors retained by WMATA, and his supervisors--knew that he  could not perform because of his physical disability.  He  presented medical evidence of his physical disability to  WMATA.  When a WMATA job opened up that he could  perform, parts runner in Automated Fare Collection, he  applied to be transferred to the position.  He had held the  parts runner job previously;  he was indisputably qualified to  perform the job;  and the work required was within his  current physical ability.  He also had seniority among the  competing candidates.  He was denied the job, however, for  no reason.  Under the ADA, WMATA should have offered  the parts runner job to Duncan, as a reasonable accommodation to his existing disability.


48
During oral argument before the court, WMATA's counsel  was asked to address the following hypothetical:


49
Assume an employee is disabled because, due to a freak accident, one of his legs is amputated.  As a result of this disability, the employee is unable to perform his job with WMATA.  Subsequently, there is a job opening at WMATA in a position that the disabled employee previously has held and is currently capable of performing (because it requires no appreciable standing or walking). The amputee requests a transfer to the job.  Is WMATA required to accommodate the disabled employee?


50
WMATA's counsel conceded that, under the ADA, the employer would be obliged to accommodate the disabled employee by offering him the job.  Duncan's request merited an  equivalent response.


51
The problem in this case is that, under the ADA, a disability is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of  [an] individual."  42 U.S.C. § 12102 (2)(A) (1994) (emphasis  added).  Congress has delegated to the Equal Employment  Opportunity Commission ("EEOC") the responsibility for issuing regulations to enforce the proscription against discrimination in employment under the ADA.  42 U.S.C. § 12116  (1994).  In assuming this responsibility, the EEOC has promulgated regulations providing that "major life activities"  include


52
caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.


53
29 C.F.R. § 1630.2(i) (1999).  It is fairly easy to determine  whether a person is disabled due to a physical impairment  that substantially limits his ability to walk.  The same cannot  be said about physical impairments (beyond, say, walking,  seeing, hearing, speaking, and breathing) that substantially  limit a person's ability to work.  Thus, the EEOC has explained that the substantial limitation inquiry with respect to  "working" entails an inability to work in 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).


54
The disabled employee in the aforecited hypothetical is  covered by the major life activity of "walking," so he need  only show that his walking is substantially impaired in order  to pursue a claim under the ADA.  Duncan's ADA claim,  however, rests on the major life activity of "working," so he  faces a tougher burden.  This disparate burden is hard to  fathom.  Both men are physically impaired and their impairments limit their abilities to work;  and both men easily can  be accommodated.  Nonetheless, Duncan is forced to show  that he is unable to work in a broad class of jobs or a broad  range of jobs in various classes in order to claim relief,  whereas the hypothetical employee need only show an inability to perform a single job.  Given the purposes of the ADA  and the similarities in the two situations, it is difficult to find  a meaningful difference between the hypothetical employee  and Duncan.  Both the hypothetical employee and Duncan  should be accommodated because of their disabilities.


55
As the majority and separate opinions make clear, however,  "working" is a disfavored basis upon which to rest a definition  of major life activities.  Indeed, even the Supreme Court,  albeit in dicta, has questioned whether "working" should be  considered a major life activity.  See Sutton v. United Air  Lines, Inc., 527 U.S. 471, 492 (1999).  There are undoubtedly  some conceptual difficulties in viewing work as a major life  activity.  For example, an expansive view of work as a major  life activity might allow a person to claim a disability and  discrimination under the ADA if he/she is allegedly denied  work for a physical impairment, such as cosmetic disfigurement, which does not rise to the level of an underlying  handicap.  In this sense, "work" is arguably over-inclusive  when viewed as a major life activity, at least when considered  in conjunction with the principal purposes of the ADA.  Nevertheless, it is hard to believe that Congress intended to deny  a claimant like Duncan--a truly disabled person, who has  undisputed job limitations due to his physical impairment and  can easily be accommodated (much the same as with the  hypothetical employee)--redress under the ADA because his  claim rests on "work" as a "major life activity."


56
The result reached by the majority in this case invariably  will make "work" impermissibly under-inclusive when viewed  as a major life activity, in a way that appears to defy  Congress' mandate in enacting the ADA.  The Supreme  Court may have some doubts about work as a major life  activity, but the Court has not declared the EEOC's regulation unlawful.  Unless and until this happens, claimants like  Duncan are entitled to full protection of the statute.  In  short, as long as working is a major life activity, an employer's responsibility to offer a reasonable accommodation to a  disabled employee like Duncan should be taken seriously.

I. Analysis

57
Quite apart from the foregoing analytical problems raised  by this case, I respectfully dissent from the judgment of the  majority because this is a case that no judge should take from  a jury.  The jury considered the evidence presented by  Duncan and WMATA;  there were no erroneous instructions  given to the jury;  and the jury weighed the evidence and  found in favor of the plaintiff.  In nullifying the jury verdict,  the majority has impermissibly encroached on the jury's  important fact-finding function, which is something that neither a trial judge, see Tri County Industries, Inc. v. District  of Columbia, 200 F.3d 836, 840, 842-43 (D.C. Cir. 2000), cert.  granted, 68 U.S.L.W. 3774 (U.S. Sept. 26, 2000) (No. 99-1953),  nor an appellate panel, see Boodoo v. Cary, 21 F.3d 1157, 1161  (D.C. Cir.  1994), is permitted to do.


58
The majority opinion is especially suspect, because the  judgment is based on a re-weighing of the evidence that was  before the jury.  The case that Duncan presented to the jury was adequate to survive a judgment as a matter of law, so  there is no basis for this court to second-guess the jury.  And  it is somewhat unnerving to notice that this court showed  unbridled solicitude for the jury's role when considering a  highly debatable claim in Tri County Industries (in which the  city of Washington, D.C., was required to pay $5 million on a  jury verdict) and now see that same solicitude missing here in  a case involving a claim under the ADA.

A. Standard of Review

59
In considering whether to take a verdict away from a jury  and grant a judgment as a matter of law, a court may not  substitute its judgment for the jury's judgment in factual  determinations.  See Boodoo, 21 F.3d at 1161 (D.C. Cir. 1994).  As the Court recently reiterated, "[c]redibility determinations, the weighing of the evidence, and the drawing of  legitimate inferences from the facts are jury functions, not  those of a judge."  Reeves v. Sanderson Plumbing Products,  Inc., 120 S. Ct. 2097, 2110 (2000) (quoting Anderson v.  Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).


60
Whether a judge is inclined in favor of one possible interpretation of the evidence, over another plausible interpretation of the evidence, is of no moment.  This court may enter a  judgment as a matter of law only when the evidence presented at trial admits of a single inevitable interpretation.  "It is  long settled that 'the jury's verdict will withstand challenge  unless the evidence and all reasonable inferences that can be  drawn therefrom are so one-sided that reasonable men and  women could not disagree on the verdict.' "  Swanks v.  Washington Metro. Area Transit Auth., 179 F.3d 929, 933  (D.C. Cir.), cert. denied, 528 U.S. 1061 (1999) (quoting Scott v.  District of Columbia, 101 F.3d 748, 753 (D.C. Cir. 1996)). This high threshold has not been met in this case.  Based on  the evidence presented at trial, the jury reasonably determined that Duncan's physical impairment substantially limited him in the major life activity of working.  Despite the  clear prohibition that a court must not replace a jury as trier  of fact, WMATA's case turns on asking this court to re-weigh  the evidence.  At the very opening of his oral argument, WMATA's counsel urged this court to weigh the medical  reports and physicians' testimony offered at trial so as to find  that Duncan was able to perform medium lifting.  The argument was one that simply asked this court to make findings of  fact against the plaintiff, something that we have no authority  to do.  Indeed, much of WMATA's argument to this court  was presented as if the judges on the appellate bench were in  a jury box.  As the following analysis indicates, there is no  basis here to take this case from the jury.

B. Disability under the ADA

61
As noted above, under the ADA, a disability is "a physical  or mental impairment that substantially limits one or more of  the major life activities of [an] individual."  42 U.S.C. § 12102  (2)(A) (1994).  And EEOC regulations provide that "work" is  a major life activity.  29 C.F.R. § 1630.2(i) (1999).  Unless  and until the Supreme Court decides otherwise, working  remains a major life activity under the ADA.  See Mullins v.  Cromwell, 228 F.3d 1305, 1313 (11th Cir. 2000);  Sinkler v.  Midwest Property Management, Ltd., 209 F.3d 678, 684 n.1  (7th Cir. 2000);  Equal Employment Opportunity Comm'n v.  R.J. Gallagher Co., 181 F.3d 645, 654-55 (5th Cir. 1999).


62
EEOC regulations explain that a physical impairment substantially limits an individual's ability to work when the  individual is


63
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.


64
29 C.F.R. § 1630.2(j)(3)(i).  In addition, the following factors  may be considered in assessing whether a physical impairment substantially limits a person's ability to work:


65
(A) The geographical area to which the individual has reasonable access;


66
(B) The 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 (class of jobs);  and/or


67
(C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).


68
Id.  § 1630.2(j)(3)(ii).


69
There is no magical legal standard for measuring substantial limitation.  Clearly, the inability to perform lifting does  not automatically constitute an impairment that substantially  limits a person's ability to work.  See, e.g., Thompson v. Holy  Family Hosp., 121 F.3d 537, 539 (9th Cir.1997) (holding nurse  who was restricted in her ability to lift but was able to work  in other nursing jobs was not substantially limited).  However, the inability to participate in significant lifting, taken in  the context of an individualized analysis, may substantially  limit an individual's ability to work.  In evaluating substantial  limitation, a jury must engage in a context-dependent assessment of the plaintiff's personal characteristics, education,  work history, and the available job market in order to assess  whether the plaintiff is excluded from a class of jobs or a  broad range of jobs across classes.  See, e.g., Wellington v.  Lyon County Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999)  (finding issue of material fact exists regarding disability  where plaintiff's education was limited to a high school degree  and some trade school training, his work experience was  limited to manufacturing, construction, heavy maintenance  and plumbing, and no evidence was presented that jobs were  available in the job market for a person with comparable  abilities);  Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 11-12  (1st Cir. 1999) (rejecting judgment as a matter of law against  plaintiff where plaintiff had only a high school education and  a work history of heavy physical labor, and physician testified  plaintiff was precluded from a lot of jobs);  Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 784 (3d Cir. 1998)  (explaining that "an individual's training, skills, and abilities  are taken into account in determining whether the individual  is substantially limited in the major life activity of working"); Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996)  (explaining "[a] person's expertise, background, and job expectations are relevant factors in defining the class of jobs  used to determine whether an individual is disabled");  Cochrum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th Cir. 1996)  (noting "[t]he physical restrictions Cochrum's physician  placed upon him--no overhead work, heavy lifting, or pulling  and pushing out from his body--might apply to a broad range  of jobs, and are more than job specific").


70
In this case, the jury was presented with evidence of  Duncan's personal characteristics, education, work history,  and the available job market in order to assess whether he  was excluded from a class of jobs or a broad range of jobs  across classes.  It does not matter that WMATA disputed  some of what Duncan offered;  what matters is that there was  evidence in the record supporting Duncan's claim.  I agree  with my colleagues that Duncan did not present the strongest  case possible.  However, I believe that there was enough before the jury to justify its verdict in his favor.


71
C. The jury reasonably determined that Duncan was substantially limited in the major life activity of working


72
There is no serious doubt that Duncan was physically  impaired.  Dr. Harvey N. Mininberg, an orthopedic surgeon,  diagnosed Duncan with degenerative disc disease.  See Trial  Transcript at 18 (May 20, 1997).  After he was injured while  working for WMATA, Dr. Mininberg authorized Duncan to  return to work, with the restriction that Duncan not lift more  than approximately 20 pounds.  See id. at 25.  Dr. Najmaldin  O. Karim, a neurosurgeon, confirmed both the diagnosis and  the lifting restriction.  See id. at 122, 127.  Duncan alleged  that this physical impairment substantially limited him in the  major life activity of working.  Specifically, Duncan claimed  that as a result of his physical impairment, he was precluded  from the classes of jobs that included medium, heavy, and  very heavy lifting.


73
There was sufficient evidence in the record for a reasonable  jury to determine that, based on Duncan's education, training,  work history, and efforts to find another job, Duncan's physical impairment substantially limited his ability to work.  Duncan never received a high school diploma or completed his  GED.  He went to trade school for a year and a half, but  never finished the training.  He had no other formal training  or education.  He had no computer training.  He had no  clerical or office skills.  He could barely type.  See Trial  Transcript at 127-28 (May 19, 1997).


74
Duncan was employed in heavy labor jobs throughout his  working life.  Before working for WMATA, he worked in  furniture factories, in a box company, in a glass company, in  construction, and in a company that provided the physical  settings for functions and meetings.  He was a physical  laborer.  Every one of his jobs involved significant lifting.


75
After Duncan injured his back while working for WMATA  and WMATA terminated him, Duncan sought jobs that were  of a light duty nature.  Duncan testified that during the nine  months he was receiving unemployment compensation, he  looked for jobs that were not strenuous.  See id. at 129. With his back injury, Duncan knew he could not perform the  kinds of work he had performed previously.  He testified that  he could not go back and work as a laborer in construction, or  as a packer at a glass company or furniture company, as he  had before.  See id. at 136.


76
Duncan testified that, in order to receive unemployment  compensation, he was required to submit applications in  search of other employment.  See id. at 129.  Although he  could not recall the specific jobs for which he applied, Duncan  testified that during his nine months on unemployment he  would check the unemployment listings, and call jobs he  thought he could do.  He would ask prospective employers  what the jobs entailed.  If the description of a job included  significant lifting that he knew he could not do, he would not  inquire further.  See id. at 130.


77
Although he wanted to work full time, Duncan was not able  to find full-time employment.  He ended up accepting a parttime job with Hertz, moving cars after customers dropped  them off.  He accepted the job even though it paid $5.75 an  hour, approximately one-third what he earned working for  WMATA.  See id. at 135.


78
As noted above, Duncan should have been offered the parts  runner job when it became available.  He had performed the  job in the past;  he was fully qualified and physically able to  perform the work;  and he had seniority among the competing  candidates.  WMATA never offered an adequate explanation  for its failure to accommodate Duncan, despite knowing of his  disability and having a position available for him to perform. Indeed, the only excuses offered by WMATA were that  Duncan never furnished medical evidence to support his  disability and that Duncan never really sought an accommodation.  The jury obviously rejected each of these claims; and, based on the record before us, it is easy to understand  this, for WMATA's claims are patently specious.

II. Conclusion

79
Based on the evidence presented at trial, the jury reasonably determined that Duncan's physical disability substantially limited him in the major life activity of working.  The jury  verdict should stand and the judgment of the District Court  should be affirmed.

