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No. 07-405

 

In the Supreme Court of the United States

NAOMI WALTON, PETITIONER

v.

UNITED STATES MARSHALS SERVICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR FEDERAL RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
MARLEIGH D. DOVER
ERIC FLEISIG-GREENE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the courts below erred in concluding that petitioner failed to demonstrate that respondents "re garded" her as disabled within the meaning of the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.

In the Supreme Court of the United States

No. 07-405

NAOMI WALTON, PETITIONER

v.

UNITED STATES MARSHALS SERVICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The amended opinion of the court of appeals (Pet. App. 18a-37a) is reported at 492 F.3d 998. The order of the district court granting summary judgment (Pet. App. 38a-56a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on February 9, 2007. An amended opinion was issued on June 26, 2007. A petition for rehearing was denied on September 7, 2007. The petition for a writ of certiorari was filed on September 24, 2007. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. 791, prohibits employment discrimination by federal agencies against qualified individuals with disabili ties. The Rehabilitation Act incorporates the standards of the Americans with Disabilities Act of 1990 (ADA) to determine whether a person is an individual with a dis ability. 29 U.S.C. 791(g); see 29 C.F.R. 1614.203(b). The ADA defines the term "disability" as "a physical or men tal impairment that substantially limits one or more of the major life activities of [an] individual"; "a record of such an impairment"; or "being regarded as having such an impairment." 42 U.S.C. 12102(2).

2. Petitioner was employed by Akal Security, Inc., as a Court Security Officer in the United States District Court for the Northern District of California. Pet. App. 19a. Pursuant to Akal's contract with the United States Marshals Service (USMS), Court Security Officers must meet certain medical requirements, and must undergo annual physical examinations to assess their compliance with USMS standards. Ibid. The current standards are based on a study by the Office of Federal Occupational Health, adopted by the Judicial Conference of the United States, which identified particular job functions essential to the Court Security Officer position. Id. at 19a-20a. Among those essential job functions is "the ability to determine the location and source of sound." Id. at 20a.

In November 2001, as part of her required annual medical examination, petitioner took a hearing test. Pet. App. 20a. The results, which were reviewed by the Of fice of Federal Occupational Health, revealed a disparity in hearing between petitioner's two ears sufficiently great to affect her ability to localize sound. Ibid.

Consistent with USMS policy, petitioner was notified of the potentially disqualifying condition and afforded an opportunity to provide further information or test re sults before a final recommendation was made regarding her eligibility. Pet. App. 20a. Petitioner submitted a second hearing test; after analyzing the results, the Of fice of Federal Occupational Health concluded that peti tioner was "[n]ot medically qualified to perform the es sential functions" of the Court Security Officer position. Ibid. In particular, the medical review informed peti tioner:

You have a significant hearing impairment according to the results of the tests provided by you from Gould Medical Foundation. According to the test re sults you have only one functioning ear. With only one functioning ear, you are unable to localize the direction of sound, an essential job function. Hear ing aids may malfunction or become dislodged in crit ical situations. Your job requires the ability to de tect where sound is coming from. Your inability to do so poses a significant risk to the health and safety of yourself, other law enforcement officers, and the public.

Id. at 21a.

The USMS notified Akal that petitioner was not med ically qualified to continue as a Court Security Officer, and Akal terminated her employment. Pet. App. 21a.

3. Petitioner brought suit against various federal agencies and officials, alleging she had been terminated in violation of the Rehabilitation Act and the Adminis trative Procedure Act, 5 U.S.C. 701 et seq. Pet. App. 21a. Petitioner acknowledged that she does not actually have a disability, as that term is used in the Rehabilita tion Act. Id. at 22a, 44a. She instead argued primarily that she is "a person with a disability within the meaning of the Acts because she was 'regarded as' disabled." Id. at 22a, 45a. The district court rejected that claim and granted summary judgment for respondents, holding that petitioner had failed to establish a prima facie showing of disability under any definition. Id. at 38a- 56a.

4. The Ninth Circuit affirmed. Pet. App. 18a-37a. The court of appeals held that, to state a "regarded as" disability claim, a plaintiff must show "that the employer believes that the plaintiff has some impairment, and pro vide evidence that the employer subjectively believes that the plaintiff is substantially limited in a major life activity." Id. at 25a; see id. at 23a (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999)). Ab sent "direct evidence" of such a "subjective belief," the court held that a plaintiff "must further provide evi dence that the impairment imputed to the plaintiff is, objectively, a substantially limiting impairment." Id. at 25a. In all cases, the court noted, "a plaintiff must show that her employer regards her as substantially limited in a major life activity and not just unable to meet a par ticular job performance standard." Id. at 24a (citing Murphy v. UPS, 527 U.S. 516, 524 (1999)).

Applying that test, the court of appeals held that petitioner had produced no evidence that respondents regarded her as substantially limited in any major life activity. Although petitioner claimed that her disqualifi cation under the USMS's hearing standards itself pro vided evidence that the USMS regarded her as substan tially limited in the major life activity of hearing, the court rejected that argument, noting that evidence of a belief that petitioner could not safely perform her job is not equivalent to evidence that she was substantially limited in a major life activity. Pet. App. 25a-27a. Be cause the USMS's disqualification did not bear on how it believed petitioner's hearing "compared to how unim paired individuals normally use their hearing in daily life," the court held that petitioner had failed to show that the USMS had subjectively believed her limitation to be substantial when it was not. Ibid. (citing Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184, 200-201 (2002)).

The court of appeals found that petitioner also failed to demonstrate that her perceived inability to localize sound objectively constituted a substantial limitation on the major life activity of hearing. Petitioner's primary evidence in this regard was a report from her medical expert, which contained neither analysis nor a factual basis for its opinion. Pet. App. 27a-28a. The court held that such a "conclusory report fail[ed] to raise a genuine issue of material fact" as to the objective severity of peti tioner's perceived impairment. Ibid. Petitioner's only other evidence was a report by Dr. Lynn Cook for the Immigration and Naturalization Service, stating that auditory localization was necessary for certain activities, but that visual cues could aid localization to compensate with only "minor drawbacks." Id. at 29a-30a. Reasoning that such compensatory measures "must be taken into account in judging whether an individual possesses a disability," the court held that petitioner had failed to raise a genuine issue of material fact concerning whether her inability to localize sound constituted a sub stantial limitation on hearing. Id. at 29a-30a (quoting Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 565 (1999)).1

The court of appeals also rejected petitioner's claims that respondents regarded her as substantially limited in the activities of working and localizing sound. Pet. App. 30a-34a. The court rejected petitioner's working claim because she had offered no evidence about the range of jobs from which she might be precluded, and "[a]n allegation that the employer regards the impair ment as precluding the employee from a single, particu lar position is insufficient" to support such a claim. Id. at 30a-31a (citing Murphy, 527 U.S. at 523). The court held that petitioner likewise "provide[d] no authority for her argument that the ability to localize sound is a major life activity." Id. at 33a.

Finally, the court of appeals rejected petitioner's argument that she is disabled on the basis of having a record of impairment because she had failed to raise a genuine issue of material fact concerning whether the impairment identified in her medical reports is substantially limiting. Pet. App. 35a (citing 29 C.F.R. 1630.2(k)).

ARGUMENT

The court of appeals correctly concluded that peti tioner failed to make a prima facie showing that she is an individual with a disability within the meaning of the Rehabilitation Act. The court's decision is fact-bound and does not conflict with any decision of this Court or of any other court of appeals. This Court's review is therefore not warranted.

1. The court of appeals correctly concluded, based on the record evidence, that petitioner had not raised a genuine issue of material fact that respondents regarded her as disabled. Pet. App. 18a-37a.

a. To establish a prima facie claim of disability un der the "regarded as" prong of the ADA's definition of disability, 42 U.S.C. 12102(2)(C), which is incorporated by the Rehabilitation Act, a plaintiff must show that a covered entity believes (1) that the plaintiff "has a sub stantially limiting impairment that [he or she] does not have," or (2) that the plaintiff "has a substantially limit ing impairment when, in fact, the impairment is not so limiting." Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999).

Petitioner does not dispute the court of appeals' con clusion (Pet. App. 26a-27a) that she presented no direct evidence that respondents regarded her as substantially limited in a major life activity. Petitioner instead fo cuses (Pet. 11-13) on the court of appeals' discussion of whether petitioner may nevertheless establish a prima facie "regarded as" disability claim on the ground that respondents regarded her as having an impairment-the inability to localize sound-that, as an objective matter, substantially limits a major life activity. Petitioner con tends that the court of appeals erred by considering mit igating measures-specifically, her ability to localize sound by using visual cues, as opposed to auditory lo calization-in determining whether her perceived im pairment in auditory localization was, as an objective matter, substantially limiting.

Petitioner's contention, which she raised for the first time in a petition for rehearing, see note *, supra, is in correct. This Court has specifically stated that "miti gating measures must be taken into account" in deter mining whether a particular physical or mental impair ment substantially limits a major life activity. Albert son's, Inc. v. Kirkingburg, 527 U.S. 555, 565 (1999); see Murphy v. UPS, 527 U.S. 516, 521 (1999). The Court has further noted that such measures include "measures undertaken, whether consciously or not, with the body's own systems." Albertson's, Inc., 527 U.S. at 566.

Although the analysis in these cases concerned claims of actual disability, rather than "regarded as" disability, the court of appeals correctly determined that the same analysis applies in the circumstances of this case. See Pet. App. 29a. A plaintiff is "regarded as" disabled only if a covered entity believes that the plain tiff is actually disabled: that is, that the plaintiff has "a physical or mental impairment that substantially limits one or more * * * major life activities. 42 U.S.C. 12102(2)(A) and (C). The concepts of "substantially lim its" and "major life activity" are the same whether a plaintiff alleges that she is actually disabled or that she is regarded as disabled. Thus, as the court of appeals concluded, when an employer believes that an individual has a physical or mental impairment but (1) the em ployer does not believe, as a subjective matter, that the impairment is substantially limiting, and (2) the impair ment can be mitigated in such a way that the impair ment does not, as an objective matter, substantially limit major life activities, then the employer does not regard the plaintiff as disabled within the meaning of the Reha bilitation Act.

b. Petitioner contends that the decision below con flicts with this Court's decisions in Sutton and Murphy, which "decide[d] 'regarded as' disabled claims without consideration of the mitigating measures which over came the actual disabilities." Pet. 8. That is incorrect. The Court in those cases had no occasion to consider mitigating measures in this context, since it held in both cases that petitioners' "regarded as" disability claims failed for other reasons. Sutton, 527 U.S. at 493 (hold ing that petitioners had failed to establish that they were regarded as substantially limited in the major life activity of working because they had alleged that their visual impairments were regarded as precluding them from holding only a single job, that of global airline pi lot); Murphy, 527 U.S. at 525 (holding that the peti tioner had failed to establish that he was regarded as substantially limited in the major life activity of working because "the undisputed record evidence demon strate[d] that petitioner is, at most, regarded as unable to perform only a particular job").

c. Petitioner also contends (Pet. 11-12) that the deci sion below conflicts with the decisions of other courts of appeals. That contention is also incorrect. In Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468 (2006), the Fifth Circuit, applying a Texas antidiscrimination statute modeled on federal antidiscrimination law, re jected an employer's argument that it had not regarded an employee as substantially limited in major life activi ties because he had diabetes, but rather because he was unable to control his diabetes, and that such "failure to control [a] controllable impairment" is not protected by the ADA. Id. at 477-478. The Fifth Circuit concluded that a "failure to control" rule is inapplicable to "re garded as" disability claims, because "[n]o one can 'con trol' a nonlimiting impairment that by definition is merely 'regarded as' substantially limiting. Such an imagined condition cannot-and thus need not-be con trolled." Id. at 479. In this case, because there is no evidence that respondents subjectively regarded peti tioner's impairment as substantially limiting, the ques tion, as the court of appeals formulated it, is whether respondents should nevertheless be considered to have regarded petitioner as disabled because they believed she had an impairment that was, as an objective matter, substantially limiting. The decision below properly pro ceeded on the premise that objectively limiting condi tions, unlike "imagined" ones, can be mitigated; that conclusion does not conflict with the Fifth Circuit's deci sion in Rodriguez.

Nor does the decision below conflict with MX Group, Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002). In that case, the Sixth Circuit held that, where the evi dence showed that a city and related parties had with held the necessary permission to open a methadone clinic because they believed that the clinic's potential clients would be recovering drug addicts whose addic tion substantially limited their major life activities, see id. at 341-342, there was no need to consider the "miti gating effects of methadone" in applying the "regarded as" prong of the ADA's definition of disability, id. at 340. The Sixth Circuit did not, however, hold that such an inquiry would be inappropriate in a case, such as this, in which the record contained no similar evidence of sub jective belief that the plaintiff had a substantially limit ing impairment.

Finally, in Capobianco v. City of New York, 422 F.3d 47 (2005), the Second Circuit noted that "[a] 'regarded as' claim turns on the employer's perception of the em ployee and is therefore a question of intent, not whether the employee has a disability." Id. at 57 (internal quota tion marks and citations omitted). The court did not, however, hold that consideration of whether a perceived impairment constitutes a disability, taking mitigating measures into account, is irrelevant to determining the employer's intent-particularly in a case in which the record contains no other indication that the employer perceived the plaintiff's impairment as substantially limiting.

2. Petitioner also contends (Pet. 13-16) that the court of appeals' analysis of the mitigating effects of visual localization conflicts with this Court's decision in Sutton and the decisions of other courts of appeals. That con tention is without merit.

Contrary to petitioner's contention, the court of ap peals in this case did not disregard Sutton's conclusion that use of a mitigating measure "does not, by itself, relieve one's disability," and that an individual has a disability within the meaning of the ADA if, notwith standing the use of mitigating measures, "that individual is substantially limited in a major life activity." 527 U.S. at 488. Rather, the court of appeals correctly applied that principle in this case. The court did not hold that visual localization, by itself, defeats a claim of disability; it rather held petitioner had presented no evidence showing that "auditory localization, as mitigated by vi sual localization, is an objectively severe restriction on the use of an individual's hearing compared to how un impaired individuals normally use their hearing in daily life." Pet. App. 30a.

For similar reasons, the decision below does not con flict with EEOC v. J.H. Routh Packing Co., 246 F.3d 850 (6th Cir. 2001), which reiterated that "[c]ontrolling a disability does not necessarily mean removing a disabil ity." Id. at 855. The Sixth Circuit in J.H. Routh de clined to dismiss a case at the pleadings stage without discovery into whether an individual's epilepsy was sub stantially limiting, despite the fact that he took medica tion to control its symptoms. Id. at 855. Petitioner, by contrast, was afforded the opportunity to demonstrate that an inability to localize sound remains substantially limiting even after compensating with visual cues. She failed to do so, and the court of appeals properly granted summary judgment to respondents. Pet. App. 29a-30a.

Nor does the decision below conflict with the Second Circuit's conclusion that "mitigation refers to ameliora tion of the impairment itself, not simple avoidance of activities affected by the impairment." Capobianco, 422 F.3d at 59 n.9. The court of appeals did not suggest that petitioner could mitigate her inability to localize sound by refraining from attempting to do so, but rather by supplementing auditory localization with visual localiza tion. Nothing in Capobianco suggests that such mitiga tion should be ignored in determining whether an indi vidual's perceived impairment rises to the level of a sub stantial limitation on a major life activity.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
MARLEIGH D. DOVER
ERIC FLEISIG-GREENE
Attorneys

NOVEMBER 2007

 

1 Petitioner claims that these compensatory measures "had not pre viously been addressed by the parties or by the district court." Pet. 6. That contention is incorrect. The district court referred to Dr. Cook's finding that "visual localization of a sound source is generally just as accurate" as auditory localization, though "not nearly as efficient," in determining that Dr. Cook's report regarded inability to localize sound as merely "inconvenient" and not necessarily substantially limiting. Pet. App. 52a. The government likewise argued before the Ninth Cir cuit that petitioner's perceived impairment should be evaluated by "taking into account any methods available for her to compensate for such an impairment," and that Dr. Cook's report showed that impaired auditory localization was at most "inconvenient" because "individuals may compensate for lost localization through 'non-acoustic cues' includ ing sight and source familiarity, and * * * visual localization is 'generally just as accurate' as auditory localization, although it is not as quick." Gov't C.A. Br. 32-34 (citations omitted). Petitioner did not con test the propriety of considering that evidence until her petition for rehearing. C.A. Pet. for Reh'g 8-12 (Aug. 10, 2007).