Kellogg v. Energy Safety Services Inc., No. 07-8072 (10th Cir. Oct. 15, 2008)

| Oct 14, 2008 | Daily Developments in EEO Law |

The AD amendments Act, recently enacted to liberalize the definition of “disability,” comes too late for Ireane Kellogg. The Tenth Circuit — in a 2-1 decision — vacates a jury verdict for the plaintiff, holding that the jury was misinstructed that driving is a “major life activity.”

Kellogg v. Energy Safety Services Inc., No. 07-8072 (10th Cir. Oct. 15, 2008):  Ms. Kellogg, a safety technician for an industrial safety company, travelled widely by car for her job in Wyoming. After she was diagnosed with complex partial seizures, her employer (Oilind Safety LLC) refused week after week to return her to work without a “full release” from her doctor. 

Ms. Kellogg brought suit under the AD and the FLSA. After an eight-day jury trial, she prevailed on both claims and awarded her $125,000 in compensatory damages (capped at $100,000), $46,935 in back pay, $18,087 in front pay, as well as $25,000 in overtime and liquidated wages under the FLSA.

The panel majority, though, holds that the jury instruction defining driving as a “major life activity” was erroneous as a matter of law.  Citing cases from two other circuits (Colwell v.Suffolk County Police Dept., 158 F.3d 635, 643 (2d Cir. 1998); Chenoweth v. Hillsborough County, 250 F.3d 1328, 1329-30 (11th Cir. 2001)), the court concludes that driving is merely auxiliary to true “major life activities”:

“[D]riving is, literally, a means to an end. The activities enumerated by the EEOC [in 29 C.F.R. §1630.2(i)] — ‘caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working’ — are all profoundly more important in and of themselves than is driving. There are those who drive just for the pleasure of it (‘Hey, let’s go for a ride’), but that practice is declining and some would now consider it unpatriotic. Moreover, the importance of the enumerated activities is not dependent on where one lives; they are valued as much by the resident of a major metropolitan areas by an isolated rural resident. Driving, in contrast, may be a minor concern for one who is near convenient mass transit and can walk to work.”

Nevertheless, the panel returns the case for a new trial, rejecting the defendant’s alternative argument that there was insufficent evidence to support the verdict. The panel also affirmed the FLSA verdict over an argument that the plaintiff occupied an exempt position.

Judge Holloway, in a partial dissent, punctures the majority’s reasoning that to recognize driving as “major” denigrates the importance of other activities:

“The majority’s analysis seems to me to rest almost entirely on comparison of the importance of the activity of driving with the fundamental importance of activities listed in the EEOC regulation as examples of major life activities. But as the majority notes, the EEOC regulations do not command judicial deference. Moreover, it is undisputed that the examples in the regulation are not exclusive. See Bragdon [v. Abbott], 524 U.S. [624,] 638-39 [(1998)]. It seems to me that the majority has displaced the conventional judicial task of giving ordinary terms their ordinary meaning and has implemented instead an approach that takes a list of examples from a regulation of undetermined authority as having set a floor for the meaning of the term ‘major,’ without stopping to ask whether the result is consistent with the words Congress chose to express its intent.”

The dissent concludes that “[d]riving is of central importance to the daily lives of a great majority of Americans, as both common experience and Census Bureau statistics tell us. Accordingly, it is a major life activity and no convincing contrary evidence or analysis is offered.”

This case, with time, should become an artifact as the AD amendments Act takes hold.

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