KIRKINGBURG v ALBERTSON'S, INC., 9635002v2
U.S. 9th Circuit Court of Appeals
KIRKINGBURG v ALBERTSON'S, INC.
9635002v2
HALLIE KIRKINGBURG, No. 96-35002Plaintiff-Appellant,D.C. No.v. CV-95-549-PAALBERTSON'S, INC., ORDER ANDDefendant-Appellee. AMENDEDOPINION
Appeal from the United States District Courtfor the District of OregonOwen M. Panner, District Judge, PresidingArgued and SubmittedJuly 8, 1997--Portland, OregonFiled May 11, 1998Amended July 1, 1998Before: Alfred T. Goodwin, Stephen Reinhardt, andPamela Ann Rymer, Circuit Judges.Opinion by Judge Reinhardt;Dissent by Judge Rymer
_____________________________COUNSEL Scott N. Hunt, Portland, Oregon, for the plaintiff-appellant.Corbett Gordon, Portland, Oregon, for the defendant-appellee.
_____________________________ORDER The opinion in this case is amended as follows:At Slip op. 4623, the first full paragraph, reading "Underthe ADA, an employer is prohibited . . . .", is DELETED.
_____________________________OPINION REINHARDT, Circuit Judge:Hallie Kirkingburg, a monocular-visioned truck driver,filed an action in district court alleging that his employer,Albertson's, Inc. discriminated against him on account of hisvisual disability in violation of the Americans with Disabili-ties Act ("ADA" or "the Act"). 42 U.S.C.S 12112(a) (1994).Albertson's moved for summary judgment, arguing that Kirk-ingburg had not established a prima facie case under theADA. The district court agreed with Albertson's and grantedsummary judgment in its favor. Kirkingburg appeals. We holdthat the granting of summary judgment to Albertson's waserroneous.The FactsSince 1979, Hallie Kirkingburg has been driving commer-cial trucks. His driving record is impeccable -- he has beenin only one accident, which was determined to be not hisfault, and he has received no citations for moving violations.In 1990, Albertson's hired Kirkingburg as a driver at its distri-bution center in Portland, Oregon. Prior to starting work forAlbertson's, Kirkingburg was examined by a physician whocertified that his vision met the requirements establishedunder Department of Transportation ("DOT") regulations.1Kirkingburg also performed well on a 16-mile road test thatAlbertson's administered before it offered him the job. Fol-lowing the road test, Albertson's transportation managerstated that "It is my considered opinion that[t]his driver pos-sesses superior driving skill to operate safely the type of com-mercial vehicles listed above." Several months into the job,Kirkingburg was again examined by a physician and hisvision was recertified.2 Notwithstanding these medical certifi-cations, the visual acuity of Kirkingburg's left eye is, and hasbeen since birth, rated 20/200, well below what the generalDOT regulations require. The poor vision in his left eye iscaused by amblyopia, a condition commonly referred to as"lazy eye," which cannot be corrected. His right eye, how-ever, has a visual acuity rating of 20/20 (with correctivelenses). In short, Kirkingburg's vision is monocular.In late 1991, after he had been on the job for over a year,Kirkingburg suffered a nondriving, work-related injury whenhe fell from a truck. As a result of the accident, he did notreturn to work for almost a year. Albertson's policies requireemployees who are resuming work after a long-term absenceto secure recertification under the DOT standards, and inNovember 1992, Kirkingburg's vision was again examined.This time, the examining physician correctly determined thatthe vision in Kirkingburg's left eye was 20/200. Accordingly,the doctor refused to certify him under the DOT regulationsand informed Albertson's of these findings.When Kirkingburg was denied DOT certification, heapplied for a waiver of the regular vision requirements underthe Federal Highway Administration's ("FHWA") visionwaiver program, which was instituted in order to bring DOT'sstandards into compliance with the ADA without sacrificinghighway safety. The establishment of this program fulfilledCongress's expectation that DOT would revise its safety regu-lations in order to end unfounded discrimination against driv-ers with visual disabilities. See generally Rauenhorst v.United States Dep't of Transp., Fed. Highway Admin., 95F.3d 715 (8th Cir. 1996) (detailing the history of the FHWAvision waiver program). Under the program, FHWA makesvision waivers available to certain experienced commercialtruck drivers who have clean driving records.In order to obtain a vision waiver under the FHWA pro-gram, the applicant, among other things, is required to estab-lish that he has three years of recent experience driving acommercial vehicle without (1) license suspension or revoca-tion, (2) involvement in a reportable accident in which theapplicant received a citation for a moving violation, and(3) more than two convictions for any other moving violationin a commercial vehicle. 57 Fed. Reg. 31,458 (1992). In addi-tion, the applicant is required to present proof from an optom-etrist certifying that his visual deficiency has not worsenedsince his last examination, that the vision in one eye at leastis correctable to 20/40, and that he is "able to perform thedriving tasks required to operate a commercial motorvehicle." Id. at 31,460. In other words, DOT will waive itsregular vision requirements for commercial vehicle drivers,such as Kirkingburg, who have monocular vision, are able todrive well despite that disability, and have good drivingrecords.Kirkingburg informed Albertson's that he had applied fora waiver under the program, but Alberton's explained that itwould not accept a waiver because it had a policy of employ-ing only drivers who "meet or exceed the minimum DOTstandards." Consequently, Albertson's fired Kirkingburg fromhis position as a truck driver. Several months later, whenKirkingburg informed Albertson's that he had in fact obtaineda vision waiver, Albertson's once again refused to accept itand declined to reconsider his termination. Kirkingburgbrought suit, alleging that Albertson's discriminated againsthim in violation of the ADA.DISCUSSION The Americans with Disabilities ActWhen Congress enacted the Americans with DisabilitiesAct in 1990, it sought to eliminate the barriers that preventdisabled individuals from becoming fully participating mem-bers in all aspects of their communities, particularly in thearea of employment. In furtherance of Congress's expansivelystated goal of equality, the Act prohibits covered employersfrom engaging in employment practices that discriminateagainst individuals with disabilities. Specifically, the ADAprohibits employers from discriminating "against a qualifiedindividual with a disability because of the disability of suchindividual in regard to job application procedures, the hiring,advancement, or discharge of employees, employee compen-sation, job training, and other terms, conditions, and privi-leges of employment." 42 U.S.C. S 12112(a) (1994). TheADA contemplates that a person with a disability will be eval-uated on the basis of his individual capabilities, not on thebasis of society's biases or an employer's preconceptions.[1] In this case, Kirkingburg claims that his employer vio-lated the ADA by firing him because of his visual disability.In order to survive a motion for summary judgment, Kirking-burg must demonstrate a genuine issue of material factregarding: (1) whether he is a disabled person within themeaning of the ADA; (2) whether he is otherwise qualifiedfor the position, that is, whether he is able to perform theessential functions of the job, with or without reasonableaccommodation; and (3) whether the employer terminatedhim because of his disability. Kennedy v. Applause, Inc., 90F.3d 1477, 1481 (9th Cir. 1996). Albertson's contends thatKirkingburg is not entitled to relief under the ADA becausehe is neither disabled nor an otherwise qualified individual.We examine whether Albertson's has established that it isentitled to summary judgment with respect to these two ele-ments of Kirkingburg's ADA claim.31. DisabledAlbertson's first contends that Kirkingburg failed to raisea genuine issue of fact regarding whether he is disabled withinthe meaning of the ADA. We disagree with Albertson's argu-ment that anything short of "legal blindness" in both eyes isinsufficient to establish a disability under the ADA -- it isclear that a person who is blind or practically blind in one eyeis disabled within the meaning of the Act.[2] In determining what constitutes a disability under theADA, we are guided by the definition of the term in the stat-ute, which states that a "disability" is: (A) a physical or mental impairment that substan- tially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.42 U.S.C. S 12102(2). The implementing regulations furtherclarify the statutory definition of a disability. Under the regu-lations, an impairment is substantially limiting if it"significantly restricts as to the condition, manner or durationunder which an individual can perform a particular major lifeactivity as compared to the condition, manner, or durationunder which the average person in the general population canperform that same major life activity." 29 C.F.R.S 1630.2(j)(1)(ii) (1993) (emphasis added). Major life activi-ties include "functions such as caring for oneself, performingmanual tasks, walking, seeing, hearing, speaking, breathing,learning, and working." Id. at S 1630.2(i) (emphasis added).In addition, the regulations enumerate the following factorsthat should be considered in determining whether an individ-ual is substantially limited in a major life activity: "(1) thenature and severity of the impairment; (2) the duration orexpected duration of the impairment; and (3) the permanentor long term impact, or the expected permanent or long termimpact of or resulting from the impairment." Id. atS 1630.2(j)(2).[3] Kirkingburg has presented uncontroverted evidenceshowing that he suffers from amblyopia, a condition resultingin his being almost totally blind in his left eye. In short, he hasmonocular vision. Given the nature of the condition and itspermanence, there is no question that Kirkingburg is substan-tially limited in the major life activity of seeing. Kirking-burg's inability to see out of one eye affects his peripheralvision and his depth perception. Although his brain has devel-oped subconscious mechanisms for coping with this visualimpairment and thus his body compensates for his disability,the manner in which he sees differs significantly from themanner in which most people see. To put it in its simplestterms, Kirkingburg sees using only one eye; most people seeusing two. Accordingly, under the statute and implementingregulations, if the facts are as Kirkingburg alleges, he is dis-abled.The Eighth Circuit recently decided an almost identicalquestion. In Doane v. City of Omaha, 115 F.3d 624, 627-28(8th Cir. 1997), cert. denied, 118 S. Ct. 693 (1998), that courtheld that a monocular-visioned person, who could see out ofonly one eye because of glaucoma, was "disabled. " That theindividual had learned to compensate for the disability bymaking subconscious adjustments to the manner in which hesensed depth and perceived peripheral objects did not changehis disabled status. Id. at 627-28. It was enough to warrant afinding of disability, the court held, that the plaintiff could seeout of only one eye: the manner in which he performed themajor life activity of seeing was different.4 Id. at 627.[4] Albertson's contention that Kirkingburg is not disabledbecause he is not totally blind is plainly inconsistent with theexpansive goals of the ADA. The Act was drafted in broadlanguage in order to protect a large class of physicallyimpaired individuals from unwarranted discrimination -- itwas not drafted narrowly to protect only those with the mostsevere disabilities. See Arnold v. United Parcel Svc., Inc.,1998 WL 63505, at *7 (1st Cir., Feb. 20, 1998)("Conceptually, it seems more consistent with Congress'sbroad remedial goals in enacting the ADA, and it also makesmore sense, to interpret the words `individual with a disabil-ity' broadly, so the Act's coverage protects more types ofpeople against discrimination.").[5] We also note that an expansive reading of the statutorydefinition of a "disability" does not leave employers undulyexposed to liability. The ADA does not require employers tohire or retain in service any person who is not capable ofdoing his job properly. It merely prohibits employers fromdiscriminating against qualified workers on account of theirdisabilities. The Act contains several provisions that ade-quately protect the employer's interests. For example, an indi-vidual seeking the protection of the Act must demonstrate thathe is "qualified" for the job in spite of his impairment. 42U.S.C. SS 12111(8), 12112(a). And, if accommodations arenecessary to enable the employee to perform the essentialfunctions of the job, an employer will only be required tomake such accommodations if they are "reasonable, " in lightof the costs or other burdens they impose on the employer. Id.at S 12111(9), (10).[6] As an alternative ground for our decision, we note thatthere exists a genuine issue of fact regarding whether Albert-son's perceived Kirkingburg as disabled. Thus, even if Kirk-ingburg were not disabled, his employer's perception of himas having a disability would be sufficient to bring him underthe coverage of the Act. 42 U.S.C. S 12102(2)(c). BecauseKirkingburg has presented evidence showing that one ofAlbertson's managers described him as "blind in one eye orlegally blind," he has established a genuine issue as towhether his employer believed he was disabled.2. Qualified[7] Under the ADA, Kirkingburg must show not only thathe suffers from a disability, but also that he is a "qualifiedindividual." Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir.1990). In this regard, Kirkingburg must establish (1) that he"satisfies the requisite skill, experience, education and otherjob-related requirements of the employment position[he]holds," and (2) that with or without reasonable accommoda-tion, he can perform the essential functions of the position. 29C.F.R. S 1630.2(m); see also Foreman v. Babcock & WilcoxCo., 117 F.3d 800, 807-09 (5th Cir. 1997) (elaborating on theproper inquiry). We address the two requirements, beginningwith the latter.a. Essential Functions [8] Kirkingburg has, at the least, established a genuineissue of material fact with respect to whether he can performthe essential functions of a commercial truck driver. The regu-lations define the term "essential functions" to mean: "thefundamental job duties of the employment position. " 29C.F.R. S 1630.2(n). There is no question that Kirkingburg'sexperience as a commercial truck driver, and in particular hisyear of experience as a truck driver for Albertson's, is evi-dence from which a reasonable factfinder could conclude thatKirkingburg is able to perform the essential functions of thejob. More pertinent to the issues in this case, as we will dis-cuss more fully below, is the fact that Kirkingburg receiveda FHWA waiver based in part on his excellent driving record.Albertson's maintains that an "essential function " of the jobis Kirkingburg's ability to meet DOT safety regulations andthat because he cannot meet the standards, he is unable to per-form an essential function. We think this argument is moreproperly considered as a challenge to whether Kirkingburghas satisfied the job-related requirements. Accordingly, weturn to that issue.b. Job-related Requirements[9] In one sense, the question in this case is the traditionalone -- whether Kirkingburg satisfies the first prong of the"otherwise qualified" test, that is, whether he can satisfy thepertinent job-related requirements. Ultimately, however, thedispositive question is actually whether Albertson's job-related requirement that Kirkingburg fails to meet is lawful asapplied. Albertson's maintains that Kirkingburg cannot showthat he is qualified because he cannot fulfill its requirement ofmeeting or exceeding the regular DOT vision standards. Inthis respect, Albertson's makes two separate arguments. First,it contends that federal law mandates that it require that itsdrivers meet the regular DOT vision standards.5 Second, itasserts that, independent of its obligation to ensure compli-ance with federal law, it has the right to adopt the regularDOT vision standards as its own, and that its refusal to acceptFHWA waivers is justified because drivers who do not meetthe basic standards pose a direct safety threat. In turn, Kirk-ingburg challenges the legality of Albertson's requirementsand its refusal to recognize his FHWA waiver.(i) Compliance with Federal Law[10] As to Albertson's first contention, we think the answeris obvious. Because the FHWA waiver program is part of fed-eral law and recognizing FHWA waivers is perfectly consis-tent with federal law, Albertson's cannot justify its adoptionof the regular DOT vision standards as a job-related require-ment by asserting that federal law requires its drivers to meetthose standards regardless of whether they are qualified forand obtain FHWA waivers. Albertson's has not simply con-formed its job requirements to the relevant DOT regulations;rather, it has chosen to adhere to only a part of the regulations,while ignoring the waiver program.[11] By refusing to accept FHWA waivers, Albertson's hasrejected a portion of the federal scheme that was specificallydesigned to eliminate the discriminatory effects of the DOTsafety regulations and bring those regulations into compliancewith the ADA. See Rauenhorst v. United States Dep't ofTransp., Fed. Highway Admin., 95 F.3d 715, 716-17 (8th Cir.1996). The waiver program was the result of Congress'sexpectation that DOT would review its regulations in light ofthe ADA's mandates and "make the necessary changes to itsregulations in order to end unwarranted discrimination againstthe disabled." Id. at 717 (footnote omitted). Allowing Albert-son's to prevail in this argument would deal a serious blow tothe FHWA's efforts to establish regulations that conform tothe requirements of the ADA, in particular the Act's mandatethat disabled persons be evaluated in light of their individualabilities.Apparently hoping to convince us that the waiver programis not a legitimate part of the federal regulatory scheme,Albertson's contends further that it should not be compelledto accept a DOT waiver because: (1) the waiver program isexperimental, and (2) it has been invalidated by the D.C. Cir-cuit. See Advocates for Highway & Auto Safety v. FederalHighway Admin., 28 F.3d 1288 (D.C. Cir. 1994). Neither ofthese arguments is meritorious.The waiver program, which was instituted in July 1992, hasbeen adjudged a success by the FHWA. See 59 Fed. Reg.59,389 (1994) (determining, after two years of study, "that theissuance of waivers to the 2,399 drivers remaining in thestudy group is consistent with the public interest and the safeoperation of commercial motor vehicles"). The success of theprogram is no surprise, given that waiver recipients areselected on the basis of individual evaluations, under exactingstandards. Only drivers who have exemplary driving recordsare eligible. Contrary to what Albertson's would have usbelieve, there is no evidence whatsoever that drivers whohave been certified to drive under the waiver program are lesssafe than drivers who have been certified under the ordinarystandards. In fact, quite the opposite appears to be true. In aninterim report, the FHWA concluded that "the driving perfor-mance of individuals participating in the vision waiver pro-gram is better than the driving performance of all commercialvehicle drivers collectively."6 FHWA Interim MonitoringReport on the Drivers of Commercial Motor Vehicles, 3(1994).Albertson's also contends that it was not required to acceptthe FHWA waiver because the D.C. Circuit invalidated theprogram in 1994. We do not think Albertson's can justify itstermination of Kirkingburg and its refusal to accept thewaiver on the basis of events that occurred long after itsdecisions.7 See O'Day v. McDonnell Douglas Helicopter Co.,79 F.3d 756, 759-61 (explaining that evidence of a justifica-tion not known to the employer at the time of discharge can-not serve to justify the termination). Additionally, there isnothing in the record before us that suggests that Albertson'sdecision in November 1992 not to accept the waiver wasbased on its belief that the program had been invalidlyadopted. Instead, on the record before us, it is undisputed thatwhen Albertson's terminated Kirkingburg and refused toaccept the waiver, it was not because it believed that the pro-gram had been invalidly adopted. Rather, the record reflectsthat Albertson's refused to accept the waiver simply becauseit believed that it could continue to require its drivers to meetthe regular DOT vision standards notwithstanding the lawfulissuance of a waiver by the FHWA. In a letter to the OregonBureau of Labor & Industries, dated August 23, 1993, Albert-son's stated: "Albertson's does not employ drivers who do notmeet minimum DOT requirements. The fact that Mr. Kirking-burg applied for and received a waiver of the DOT visionrequirements, does not mean that he meets the minimum qual-ifications of a DOT driver."[12] As we discussed above, Albertson's was not free todisregard the waiver program for the reasons it asserted at thetime it fired Kirkingburg. Because there is no evidence in therecord indicating that Albertson's believed the waiver pro-gram to be invalid when it terminated Kirkingburg or that itrelied upon any such belief as a basis for its refusal to acceptthe FHWA waiver, we need not decide whether such a beliefwould shield it from liability, or whether it might instead havebeen required to challenge the validity of the waiver programin an administrative proceeding. We leave these questions tothe district court should they become relevant on remand. Weemphasize that because we are reviewing a summary judg-ment motion, we do not finally resolve any issues that may bedependent on the introduction of further admissible evidenceat trial.In any event, the D.C. Circuit invalidated the waiver pro-gram in 1994 not because it was inconsistent with publicsafety, but because the FHWA instituted the program withoutcomplying adequately with administrative procedures. SeeAdvocates, 28 F.3d at 1294. When the case was remanded tothe FHWA for further consideration after the court's decision,the agency conducted the appropriate notice and commentprocedures and once again concluded that the waiver programwas a desirable measure in light of both safety concerns andthe goals of the ADA. No challenge has been made to thatdecision, and the statutory provision allowing the FHWA togrant waivers to vision-impaired drivers remains in effect. 49U.S.C. S 31136(e)(1). In fact, last year, the FHWA granted atleast one waiver to a monocular-visioned driver. 62 Fed. Reg.35,881 (1997). Thus, we reject Albertson's argument that thewaiver program is not a lawful and legitimate part of the DOTregulatory scheme.8(ii) Direct Safety ThreatAlternatively, Albertson's maintains that its independentadoption of the regular DOT vision standards without thewaiver provision, as a job-related requirement, is consistentwith the ADA. It asserts that requiring compliance with theregular DOT vision standards is necessary to prevent visually-impaired employees from "pos[ing] a direct threat to thehealth or safety of other individuals in the workplace." 42U.S.C. S 12113(b). In other words, it argues that recognizingthe FHWA waivers would constitute a direct safety hazard.The practical effect of Albertson's argument is to seek tohave us declare the waiver program invalid. We seriouslyquestion our jurisdiction to do so in the context of these pro-ceedings. We doubt that a business that operates in the highlyregulated commercial transportation industry is free to chal-lenge generally applicable FHWA regulations in private liti-gation. In particular, our concern is that allowing such achallenge would effectively permit a regulated entity to cir-cumvent the specific scheme for judicial review of FHWAregulations that Congress carefully established in the Admin-istrative Orders Review Act (commonly known as the HobbsAct).9 28 U.S.C. SS 2321, 2342. Because the parties have notaddressed this question, however, we will not decide it here,leaving it to the district court to do so initially, should furtherproceedings following remand make such a determinationappropriate or necessary.[13] In any event, Albertson's has simply failed to produceany evidence that Kirkingburg and other waiver recipientspose a direct safety threat. Under the statute, a direct threat isdefined as "a significant risk to the health or safety of othersthat cannot be eliminated by reasonable accommodation." Id.at S 12111(3). A "significant risk" means a high probabilityof harm that is neither remote nor speculative. 29 C.F.R.S 1630.2(j). Drivers who qualify for the waiver program havenecessarily established to the satisfaction of the agencycharged with ensuring highway safety that they do not posea safety threat at all.10 Denying a monocular-visioned driverthe opportunity to work, in spite of his having demonstratedthat he is capable of performing the job safely, is precisely thesort of unwarranted discrimination that the ADA sought toabolish.[14] To the extent that Albertson's contends that DOTvision requirements governing the qualifications of truck driv-ers constitute a floor, not a ceiling, and that it is free to adoptmore restrictive standards than are set forth in the regulations,it misperceives the nature and purpose of the FHWA waiverprogram. The waiver program was designed to bring the DOTregulations into compliance with the requirements of theADA and serves to protect disabled persons againstunfounded discrimination. More important for our purposes,however, the individuals who secure waivers under the pro-gram have been determined to be safe drivers. It is evident,therefore, that however one views the other parts of the DOTregulations, the waiver program does not provide a floor foremployers; rather it precludes them from declaring that per-sons determined by DOT to be capable of performing the jobof commercial truck driver are incapable of performing thatjob by virtue of their disability.11Albertson's may, in other respects, be able to adhere tostricter standards than those contained in federal regulations.But when the stricter standards it adopts screen out peoplewith disabilities in contravention of a federal programdesigned both to protect the public safety and ensure compli-ance with the ADA, it will not be able to avoid the Act's stric-tures by showing that its standards are necessary to prevent adirect safety threat. To put it another way, the FHWA hasalready determined that the regular DOT vision standards, ifapplied across the board, would unnecessarily discriminateagainst visually impaired drivers in violation of the ADA. Ithas also determined that some visually impaired drivers whocannot meet the regular standards are nevertheless safe, com-petent drivers. In light of the agency's determination thatwaiver recipients do not pose a threat to public safety, weconclude that Albertson's is precluded from asserting thatthey do.CONCLUSIONIn short, we conclude that if the facts are as Kirkingburgalleges, he suffers from a disability and is therefore protectedby the provisions of the ADA. We further conclude that inestablishing its job-related prerequisites, Albertson's cannotselectively adopt and reject federal safety regulations whenthe effect of its selective adoption and rejection is to discrimi-nate against truck drivers with disabilities. Albertson's jobrequirement, which screens out otherwise qualified individu-als with disabilities, is invalid.Because Kirkingburg's failure to satisfy the discriminatoryprerequisite served as the sole basis for the granting of sum-mary judgment in favor of Albertson's, we reverse the districtcourt's award and remand for further proceedings.REVERSED and REMANDED.
_____________________________RYMER, Circuit Judge, dissenting:The majority subjects Albertson's to liability under theADA for requiring a commercial truck driver to comply withthe visual acuity regulations of the Department of Transporta-tion as an essential function of his job rather than letting himparticipate in an experimental program that waived thoserequirements but had not been found safe. I must dissent.Complying with current DOT safety requirements was anessential function of Kirkingburg's job at Albertson's.1 Thereis no dispute that his eyesight didn't meet them. He could notbe certified. But several months before he lost his certifica-tion, the FHWA decided to select a group of experiencedmonocular drivers with clean safety records to be licensed fora three year study of the relationship between visual disordersand commercial motor vehicle safety. Kirkingburg says thathe could have performed the essential functions of his job byvirtue of a waiver, and that in any event, his disability shouldhave been accommodated by allowing him a leave of absenceto get one.The problem is that DOT vision regulations were adoptedfor public safety. The version in effect in November 1992,when Kirkingburg failed to get certified, had been on thebooks since 1970. Although numerous studies had been con-ducted to determine whether vision requirements for monocu-lar drivers could safely be changed, the FHWA found nosufficient basis for doing so as recently as July 16, 1992.2 See57 Fed. Reg. 31458 (1992). That's why the FHWA decidedto conduct a study to gather empirical data on monocular driv-ers, and to grant waivers on a limited basis to an experimentalgroup. See id. Even so, the FHWA had not determined thatthe existing regulations could safely be waived albeit experi-mentally for monocular drivers. That is why the D.C. Circuitheld that the waiver program itself was invalid; the agencyhad not made the required finding that a waiver was"consistent with the safe operation of commercial motorvehicles" as required by statute. Advocates for Highway andAuto Safety v. Federal Highway Admin., 28 F.3d 1288, 1289(D.C. Cir. 1994).Neither Kirkingburg nor the majority explains why theADA should force Albertson's to assume the risk of waivingvision requirements that the FHWA itself had not found couldbe safely waived. Instead, the majority says that because theFHWA determined in 1994 that the vision study was safeenough to continue, Albertson's cannot say that in 1992 itsrequirement of complying with the vision regulations andrejecting a waiver was justified on account of safety. But thesyllogism is flawed:1. The majority starts with the premise that the disposi-tive question is "whether Albertson's job-related requirementthat Kirkingburg fails to meet is lawful as applied. " Whateverthis means in the context of the ADA (where the real questionis whether the employee is a "qualified individual with a dis-ability who, with or without accommodation, can perform theessential functions of the employment position," 42 U.S.C.S 12111(8)), it cannot be the case that requiring compliancewith DOT safety regulations is unlawful. Nor can it becomeunlawful "as applied" when the alternative is a waiver avail-able only to an experimental group of drivers in a study thatno one had found was consistent with the safe operation ofcommercial motor vehicles.2. Next, the majority asserts that Albertson's has not"simply conformed its job requirements to the relevant DOTregulations; rather, it has chosen to adhere to only a part ofthe regulations, while ignoring the waiver program. " How-ever, Albertson's did not pick and choose regulations: the reg-ulations hadn't changed in November of 1992 (and stillhaven't). It conformed its conduct precisely to the regulationsin effect. The vision study waiver program was not part of theregulations, nor was it "a portion of the federal scheme" toprevent discrimination that Albertson's impermissiblyrejected, as the majority suggests. Rather, the vision studywaiver program was part of the FHWA's "efforts to review,and to eventually amend, its vision requirements through arulemaking action." 57 Fed. Reg. 31458, 31458 (1992). Asthe agency explained, the waiver program will enable the FHWA to con- duct a study comparing a group of experienced, visu- ally deficient drivers with a control group of experienced drivers who meet the current Federal vision requirements. This study will provide the empirical data necessary to evaluate the relationships between specific visual deficiencies and the opera- tion of CMVs. The data will permit the FHWA to properly evaluate its current vision requirement in the context of actual driver performance, and, if nec- essary, establish a new vision requirement which is safe, fair, and rationally related to the latest medical knowledge and highway technology.Id. In short, the vision waiver study was not a rule or a regula-tion with the force of law. It was a test, and an invalid test atthat (as the D.C. Circuit held), for no determination had beenmade that waiving the vision requirements would notadversely affect the safe operation of commercial vehicles.3. Next, the majority says that the waiver program "hasbeen adjudged a success by the FHWA." Whether that's so ornot, the determination referred to is the FHWA's "Notice ofFinal Determination and change in research plan" issuedNovember 17, 1994 -- two years after Kirkingburg lost hisjob. 59 Fed. Reg. 59386, 59389 (1994). But it doesn't matterwhat the FHWA now thinks about the safety of its waiverstudy program. Whatever it had learned as a result of twoyears worth of the experiment wasn't known to Albertson's inNovember 1992, or to the agency at the time the study wasbegun in July 1992. As Kirkingburg seeks damages for hisNovember 1992 termination, not reinstatement, the 1994,post-Advocates determination is simply irrelevant.4. Finally, having said that Albertson's adhered to onlypart of the regulations because it ignored the waiver program,and that the waiver program is a success, the majority con-cludes that the waiver program "is a lawful and legitimate partof the DOT regulatory scheme" which Albertson's cannot saywas not safe. Thus it holds that Albertson's "cannot selec-tively adopt and reject federal safety regulations " in establish-ing its job-related prerequisites, and that its job requirementis invalid. But since the vision study waiver program neverwas (and still isn't) a part of the regulations; and since itwasn't a success at the time of Kirkingburg's terminationbecause it hadn't gotten off the ground and wasn't determinedto be safe; and since it never was (and still isn't) a part of anyregulatory scheme, there is no basis for holding that Albert-son's job requirement is invalid. Nor is there any authority forestopping Albertson's, which is a private employer with legalresponsibility to the public for the safety of its commercialmotor vehicle drivers, from asserting that it wasn't requiredto accept a waiver, or that it wasn't reasonable for it to declineto do so, on the grounds of safety. To me it is dispositive thatat the time of Kirkingburg's termination (and in this record),no one (including the FHWA) had determined that a waiverwas safe.For these reasons, I agree with the district court that Kirk-ingburg failed to show that he could perform the essentialfunctions of his job because he did not meet the DOT visualrequirements, and that the ADA does not require Albertson'sto accept an experimental waiver that the FHWA had notfound consistent with the safe operation of commercial motorvehicles. Since Albertson's offered to accommodate Kirking-burg's disability by another job (which Kirkingburg rejected),it fulfilled its ADA obligations. I would, therefore, affirm. the end
___________________________FOOTNOTES 1 According to the DOT regulations, operators of commercial motorvehicles should have a "distant visual acuity of at least 20/40 (Snellen) ineach eye without corrective lenses or visual acuity separately corrected to20/40 (Snellen) or better with corrective lenses,[and] distant binocularacuity of at least 20/40 (Snellen) with or without corrective lenses." 49C.F.R. S 391.41(b)(10).2 Both medical examinations revealed that Kirkingburg's vision did notmeet the applicable standards; neither examination, however, correctlyappraised Kirkingburg's actual visual acuity. It is not clear why Kirking-burg received a certification on these two occasions in spite of his failureto meet the required standards.3 There is no dispute regarding the third element of Kirkingburg's ADAclaim; if he is disabled, he was terminated because of the disability.4 Recently, the Fifth Circuit held as a matter of law that a monocular-visioned individual was not disabled because he was "able to perform nor-mal daily activities." Still v. Freeport-McMoran, Inc., 120 F.3d 50, 52 (5thCir. 1997). We think this reasoning is inconsistent not only with the regu-lations, but with the Act itself. Whether an individual is disabled withinthe meaning of the Act does not depend, contrary to the Fifth Circuit'ssuggestion, on whether the individual can go about his daily business inspite of the impairment. Instead, the appropriate inquiry in cases such asthis is whether, as a result of a physical impairment, the individual isrequired to perform a major life activity in a different manner from otherpersons. Notably, the Still court did not cite or discuss 29 C.F.R.S 1630.2(j)(1)(ii) in reaching its decision. Accordingly, we agree with theEighth Circuit's analysis and reject the Fifth Circuit's.5 Albertson's invokes Buck v. United States Dep't of Transp., 56 F.3d1406 (D.C. Cir. 1995), for the proposition that it should not be compelledto employ a driver who cannot satisfy the regular federal safety standards.In Buck, three deaf truck drivers argued that under the Rehabilitation Act(after which the ADA is modeled), "it [was ] unlawful for the agency torely upon a general rule applicable to all hearing-impaired individualswithout regard to their actual ability to drive a truck safely." Id. at 1408.The D.C. Circuit rejected the petitioners' argument, finding that the imple-mentation of general safety standards by the FHWA and the agency'srefusal to establish a waiver program is not violative of the RehabilitationAct if insufficient evidence exists justifying such waivers. Id.Buck is clearly inapposite to this case. Here, the FHWA has created awaiver program for vision-impaired drivers. The decision to implementthe program was well supported by empirical evidence that a number ofdrivers who do not meet the otherwise applicable vision standards are nev-ertheless able to operate commercial vehicles safely. Moreover, theFHWA has determined that Kirkingburg is one of them.6 In fact, the excellent safety records of the waiver program participantswas cause for reevaluating the program's research methods with respectto its ultimate purpose: to alter the regular vision standards permanently.59 Fed. Reg. 59386, 59388-90 (1994). To the extent that the program wasa "failed experiment," as Albertson's alleges, it was not a failure in termsof the safety performance of those to whom waivers were granted. Its only"flaw" was that preselecting monocular drivers with extraordinary safetyrecords resulted in what may have been an unrepresentative and super-safegroup of drivers.Detractors of the program successfully argued to the agency thatbecause only the safest drivers were granted waivers, the safety records ofwaiver recipients were not reliable indicators of the potential safetyrecords of all monocular-visioned drivers. Id. at 59389. Thus, the detrac-tors concluded, the success of the waiver program should not serve as abasis for modifying the regular vision standards so as to render allmonocular persons qualified to drive commercial trucks. The FHWAagreed and concluded that it needed to adopt a new research method "todevelop parameters for performance-based visual standards" that "reflectthe actual physical requirements that foster[ ] safe operation of commer-cial vehicles." Id. at 59389-90. But the agency's decision to change itsresearch methods is of no help to Albertson's in this case, because thedecision was based on the highly successful track records of the carefullyselected group of waiver recipients, including Kirkingburg.7 In some respects, this question is analogous to that presented in after-acquired evidence cases in which an employer subsequently discovers alawful justification for its previously unlawful action. See O'Day, 79 F.3dat 758. The general rule in those cases is that the employer cannot usesuch justifications to support the discharge. However, while it is appropri-ate in those cases to permit the employer to use the evidence in order tolimit the amount of damages it must pay, the after-acquired evidence inthis case probably would not affect Kirkingburg's damage award, becausethe new justification does not involve employee wrongdoing and theFHWA revalidated the waiver program following the D.C. Circuit's deci-sion.8 The dissent asserts that the waiver program is not part of the regulatoryscheme. That is not correct. The statute governing the DOT safety stan-dards specifically includes a provision allowing for waivers of the regularstandards and we consider the "scheme" to include all the relevant rules,regulations, and statutory provisions.9 The Hobbs Act governs judicial review of rules, regulations, and finalorders of a handful of agencies, including the Interstate Commerce Com-mission, under which authority the FHWA acts. For a discussion of theHobbs Act and its purposes, see Carpenter v. Department of Transporta-tion, 13 F.3d 313 (9th Cir. 1994). Carpenter, a pre-waiver program case,involved a driver with monocular vision who had been disqualified fromdriving when the FHWA found that he did not meet the applicable visionstandards. The driver brought an action in federal district court, claimingthat the regulations violated his civil rights. We dismissed the claim, find-ing that the Hobbs Act "requires that such a challenge be brought only inthe court of appeals." Id. at 314.10 It bears mentioning once again that, prior to offering Kirkingburg ajob, Albertson's gave him a 16-mile road test. He performed well on thetest and demonstrated to Albertson's transportation manager that he had"superior driving skill to operate safely the type of commercial vehicleslisted above." In fact, the record as a whole demonstrates clearly, andwithout a hint of any contrary evidence (other than the fact of his monocu-lar vision), that Kirkingburg is eminently qualified for the job of commer-cial truck driver.11 Albertson's does not contend that it is entitled to adopt vision stan-dards that are more stringent than those contained in the federal regula-tions, including the waiver program, because the work its drivers performis substantially different from the work performed by other commercialtruck drivers. We express no view as to how such an argument would farein a case in which it was properly presented.1 Kirkingburg contends that the essential function of his job was beingcertified by DOT, not being in compliance with its regulations. However,there is no evidence that Albertson's ever accepted a waiver or defined theessential function of driving its commercial vehicles as anything less thancomplying with DOT visual acuity standards.2 See Rauenhorst v. Department of Transp., 95 F.3d 715 (8th Cir. 1996)(outlining history).