UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

v.

)

)

SCHNEIDER NATIONAL, INC.,

)

)

Defendant.

)

__________________________________________)

Civil Action No. ________________
COMPLAINT (Jury Trial Demand)

NATURE OF THE ACTION This is an action under Title I of the Americans with Disabilities Act of 1990 (“ADA”) and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of disability and to provide appropriate relief to Jerome T. Hoefner, who was adversely affected by such practices. As alleged with greater particularity in Paragraph 9 below, the Equal Employment Opportunity Commission alleges that on or about May 12, 2003, defendant Schneider National, Inc. violated the ADA when it terminated Hoefner’s employment on the basis of disability after he asked to return to work following a medical leave.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. This action is authorized and instituted pursuant to Section 107(a) of the ADA, 42 U.S.C. §12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5(f)(1) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 2. The employment practices alleged to be unlawful were and are now being committed

within the jurisdiction of the United States District Court for the Eastern District of Wisconsin. PARTIES
3. The plaintiff, the Equal Employment Opportunity Commission (“EEOC”), is the agency of the United States of America charged with the administration, interpretation, and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3).
4. At all relevant times, the defendant, Schneider National, Inc. (hereinafter “Schneider”), has continuously been a Wisconsin corporation doing business in the State of Wisconsin and the Cities of Green Bay and Racine, and has continuously had at least 15 employees.
5. At all relevant times, Schneider has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C. § 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h).
6. At all relevant times, Schneider has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than 30 days prior to the institution of this lawsuit, Jerome T. Hoefner (“Hoefner”) filed a charge with the EEOC alleging violations of Title I of the ADA by Schneider. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. During the time period relevant to this lawsuit, Hoefner experienced an isolated episode of fainting, which caused Schneider to regard him as disabled within the meaning of the
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ADA. At all times relevant to this lawsuit, Hoefner has been qualified to perform the essential functions of the over-the-road truck driver position that he held while employed at Schneider.
9. Since at least on or about November 6, 2002, Schneider has engaged in unlawful employment practices at its Green Bay and Racine, Wisconsin, facilities in violation of Section 102(b) of the ADA, 42 U.S.C. § 12112(b), as follows: After learning that Hoefner had fainted on October 6, 2002, Schneider refused to return him to work in the over-the-road truck driver position from which he had been on medical leave, and further violated the ADA on or about May 12, 2003, when it terminated Hoefner’s employment on the basis of perceived disability.
10. The effect of the practices complained of in Paragraph 9 above has been to deprive Hoefner of equal employment opportunities because of disability.
11. The unlawful employment practices complained of in Paragraph 9 above were and are intentional.
12. The unlawful employment practices complained of in Paragraph 9 above were and are done with malice or with reckless indifference to Hoefner’s federally-protected rights.
PRAYER FOR RELIEF Wherefore, the EEOC respectfully requests that this Court: A. Grant a permanent injunction enjoining Schneider and its officers, successors, and assigns, and all persons in active concert or participation with them, from failing and refusing to employ disabled individuals such as Hoefner in positions for which they are qualified. B. Order Schneider to institute and carry out policies, practices, and programs that provide equal employment opportunities for qualified individuals with disabilities, and that eradicate the effects of its past and present unlawful employment practices.
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C. Order Schneider to make Hoefner whole by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including (but not limited to) reinstatement of Hoefner into a position in which he can perform the essential functions of the position with or without reasonable accommodation.
D. Order Schneider to make Hoefner whole by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in Paragraph 10 above, including (but not limited to) job search expenses and medical expenses.
E. Order Schneider to make Hoefner whole by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in Paragraph 10 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation.
F. Order Schneider to pay Hoefner punitive damages for its malicious and reckless conduct, as described in Paragraph 9 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the EEOC its costs of this action. JURY TRIAL DEMAND
The EEOC requests a jury trial on all questions of fact raised by its complaint. Eric Dreiband General Counsel James L. Lee Deputy General Counsel Gwendolyn Young Reams
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Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 “L” Street, N.W. Washington, D.C. 20507

Dated: September ____, 2004

Jean P. Kamp (Illinois Bar No. 1390635) Regional Attorney

Dated: September ____, 2004

Rosemary Fox (Wisconsin Bar No. 1012729) Supervisory Trial Attorney

Dated: September ____, 2004

Dennis R. McBride (Wisconsin Bar No. 1000430)

Senior Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Milwaukee District Office

310 West Wisconsin Avenue - Suite 800

Milwaukee, WI 53203-2292

Telephone: (414) 297-4188

Fax: (414) 297-3146

E-mail: dennis.mcbride@eeoc.gov

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. SCHNEIDER NATIONAL, INC.,
Defendant.

) ) ) ) ) ) Civil Action No. 04-C-0875 ) ) ) ) )

PROTECTIVE ORDER The parties, through their counsel, stipulate to the protection of “Confidential Information” and the Court, being fully advised, and for good cause shown, hereby ORDERS AS FOLLOWS: 1. Definitions. “Confidential Information” shall include documents or information of the following types, however that information is obtained or produced (including, but not limited to, information obtained from documents, depositions, or interviews): (a) tax returns or other financial documents of Charging Party Jerome T. Hoefner and defendant Schneider National, Inc. (hereinafter “Schneider”), its parent, or subsidiaries of Schneider or its parent; (b) medical records of Hoefner and other past and present Schneider employees; (c) personal information of employees of Schneider, its parent, or subsidiaries of Schneider or its parent; (d) employee personnel files (including, but not limited to, evaluations and disciplinary actions); and (e) trade secrets and proprietary and confidential business information of Schneider, its parent, or subsidiaries of Schneider or its parent. 2. Access to Confidential Information. Only the following persons shall have access to Confidential Information, and only where necessary to the prosecution or defense of this lawsuit:

(a) the parties and their employees; (b) legal counsel for the parties, and the employees of legal counsel; (c) fact and expert witnesses; (d) court personnel; and (e) court reporters.
3. Permitted Uses of Confidential Information. The documents described in Paragraph 1 above, including copies of those documents, and other Confidential Information shall be used only for prosecuting or defending this litigation or any related appeals. Nothing in this Stipulation and Protective Order shall bar the use of Confidential Information in depositions, motion practice, trial, or appeals in this matter.
4. Marking of Confidential Information. A multi-page document may be designated as confidential if the first page is marked “confidential.” Documents that contain such private information as described in Paragraph 1 above may be designated and marked as “confidential” by either party.
5. Destruction of Confidential Information. All of the documents described in Paragraph 1 above, including copies of those documents, produced by one party to the other shall be destroyed at the conclusion of this litigation or related appeals.
6. Persons Bound By This Agreement. Anyone who is shown Confidential Information during this litigation or related appeals shall first agree to be bound by the provisions of this Stipulation and Protective Order.
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CH1 10882112.1

SO ORDERED this 11th day of April, 2005. By the Court:

Dated: April 7, 2005 Dated: April 7, 2005

s/ William C. Griesbach United States District judge
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION By its attorneys:
s/ Dennis R. McBride Denims R. McBride (Wisconsin Bar No. 1000430) Senior Trial Attorney EEOC Milwaukee District Office 310 West Wisconsin Avenue - Suite 800 Milwaukee, WI 53203-2292 Telephone: (414) 297-4188 Fax: (414) 297-3146 E-mail: dennis.mcbride@eeoc.gov
SCHNEIDER NATIONAL, INC.
By: s/ Mark Casciari Mark Casciari (IL Bar No. 3124121) James L. Curbs (IL Bar No. 06204072) Alison B. Willard Seyfarth Shaw LLP 55 East Monroe Street - Suite 4200 Chicago, IL 60603 Telephone: (312) 269-8855 Fax: (312) 269-8869 E-mail: mcasciari@seyfarth.com

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CH1 10882112.1

 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ,
Plaintiff, v. SCHNEIDER NATIONAL, INC.,
Defendant.

Case No. 04-C-875

ORDER

Plaintiff Equal Employment Opportunity Commission (EEOC) filed this action against Schneider National, Inc. (Schneider), claiming that Schneider had violated the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., when it refused to return Jerome Hoefner from a medical leave of absence to his position as a Schneider over-the-road commercial truck driver and later terminated his employment after it learned that he had fainted. Hoefner has been diagnosed with a condition known as neurocardiogenic syncope. The EEOC alleges that Schneider discriminated against Hoefner on the basis of a perceived disability in violation of Section 102(b) of the ADA, 42 U.S.C. § 12112(b). By way of relief, the EEOC seeks a permanent injunction enjoining Schneider from failing or refusing to employ disabled individuals such as Hoefner in positions for which they are qualified; an order directing Schneider to institute and carry out policies, practices and programs that provide equal employment opportunities for qualified

individuals with disabilities and that eradicate the effects of past and present unlawful employment practices; reinstatement and compensatory damages for Hoefner; and punitive damages.
Currently before me is the EEOC’s motion to compel Schneider to respond to four separate requests for production of documents pertaining to three areas. The EEOC’s Request No. 11 seeks all of Schneider’s Equal Employment Opportunity (EEO) training documents. Request Nos. 15 and 16 seek documents that show the net worth of Schneider. And Request No. 17 seeks documents that show the relationship between Schneider and Schneider National Carriers, Inc. (Schneider Carriers), a subsidiary of Schneider which Schneider contends was Hoefner’s actual employer and is the proper defendant in this matter. The EEOC claims that Schneider has refused to produce the requested documents despite its repeated informal efforts to obtain compliance. It now seeks and order compelling Schneider to respond.
Schneider initially responded to Request No. 11 by objecting that the request was overly broad, unduly burdensome, and not reasonably likely to lead to the discovery of admissible evidence. The EEOC thereafter limited its request to “documents regarding EEO training or workshops that Schneider has given to its employees and management personnel regarding ADA, disability or other leave issues.” (Doc. 17 at 2.) In its brief in opposition to the EEOC’s motion, Schneider concedes that in some cases, evidence of an employer’s EEO training, as well as the employer’s net worth, are relevant to a claim for punitive damages. But in this case, Schneider argues punitive damages are unwarranted as a matter of law. Even if punitive damages are a theoretical possibility at this stage, Schneider argues that discovery relating to such damages should be put off until after the parties anticipated cross-motions for summary judgment on liability are decided. (Def.’s Br. In Opp. at 2-3.) As to Request No. 17, Schneider argues that since Schneider
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Carriers has admitted that it was Hoefner’s employer, the relationship between Schneider and Schneider Carriers is irrelevant and documents showing that relationship are not likely to lead to the discovery of admissible evidence. (Id. at 3.)
The scope of discovery allowed under the Federal Rules of Civil Procedure is broad. It extends to “any matter, not privileged, that is relevant to the claim or defense of any party . . . . ” Fed. R. Civ. P. 26(b)(1). The test for whether information is discoverable is not whether the information itself is admissible, but whether it is “reasonably calculated to lead to the discovery of admissible evidence.” Id. A request for discovery "'should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action.'" AM Int'l Inc. v. Eastman Kodak Co., 100 F.R.D. 255, 257 (N.D. Ill.1981) (quoting 8 Wright and Miller, Federal Practice and Procedure § 2008 (1970)).
Schneider will be ordered to respond to the EEOC’s Request No. 11. Given the broad scope of discovery allowed under the Federal Rules, I conclude that the EEOC is entitled to information concerning Schneider’s efforts to educate and train its management and employees about its obligations under the ADA. Courts have regularly held that inconsistent application of a certain policy may be used as evidence of discrimination. See e.g. Berg v. Fla. Dept. of Labor and Employment Sec, Div. of Vocational Rehab., 163 F.3d 1251, 1255 (11th Cir. 1998)(suggesting that failure to adhere to or inconsistent application of policies may be circumstantial evidence of discrimination where there is a showing that the policies were applied to others); Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 51 (2d Cir.1998) (inconsistent application of company disciplinary policy was sufficient for jury to find that employer's defense was pretext for discrimination). Such information could lead to the discovery of admissible evidence relevant to
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whether Schneider recognized those obligations and attempted to comply with them in its treatment of disabled workers. Having narrowed its original overly broad request for all EEO training material and documents to those pertaining to the ADA, disability and other leave issues, the EEOC’s request is now reasonable and does not appear unduly burdensome. Schneider will therefore be given thirty days to respond.
As to Request Nos. 15 and 16, I conclude that the EEOC’s requests are premature. These requests seek confidential information concerning Schneider’s financial condition that may be relevant to the EEOC’s request for punitive damages. Schneider, a privately held corporation, opposes the production of such financial information, fearing it could affect its competitive position in the workplace. Although a protective order that would limit the further disclosure of such information has been entered, Schneider wishes to avoid disclosure of such information, at least until it is clear that the punitive damage claim will survive.
I find Schneider’s request reasonable. The general rule is that a plaintiff seeking punitive damages is entitled to discover information relating to the defendant's financial condition in advance of trial and without making a prima facie showing that he is entitled to recover such damages. See e.g., Christy v. Ashkin, 972 F. Supp. 253 (D. Vt. 1997). That rule has also been followed in this district. EEOC v. Klockner H & K Machs., Inc., 168 F.R.D. 233, 235 (E.D. Wis.1996). But in this case, the parties have agreed to postpone disclosure of their damage experts until after their anticipated cross-motions for summary judgment on the issue of liability are decided for the sake of efficiency. If it makes sense to postpone discovery of expert testimony on damages until it is clear that such discovery will be necessary, it is also reasonable to postpone discovery of such sensitive information relating to punitive damages.
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I also note that punitive damages are not available simply upon proof of a violation of the ADA. To recover punitive damages, a claimant must show that the employer “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a. Although the EEOC has alleged that Schneider engaged in such a practice in terminating Hoefner, there are no specific facts alleged to support its allegation that Schneider acted with malice or reckless indifference to Hoefner’s federally protected rights. Schneider is not trying to hide the fact that it terminated Hoefner as an over-the-road commercial truck driver because he has neurocardiogenic syncope. In fact, the evidence shows that Schneider has a clear and unequivocal policy disqualifying drivers who have been diagnosed with neurocardiogenic syncope apparently because it believes such a condition would endanger their safety and that of the general public. (Def.’s Br. In Opp., Ex. 2.) While Schneider’s policy may be based on an erroneous understanding of the risks associated with neurocardiogenic syncope, this is not the same as malicious or reckless indifference to an individual’s federally protected rights. Thus, it is not clear, at least at this stage of the proceedings, that the punitive damage claim will remain.
Because the information sought is highly confidential and is only relevant to a claim that may not remain beyond summary judgment, I conclude that postponing Schneider’s obligation to produce the financial documents requested is fair and reasonable. This is especially so because it is unclear at this point whether Schneider is even the proper party to respond to such a request. Schneider has contended from the inception of the suit that Schneider Carriers and not Schneider is the proper defendant since Schneider Carriers was Hoefner’s employer. If this is true, records
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relating to Schneider’s financial condition may be beyond the scope of discovery. Delaying discovery concerning punitive damages should await resolution of this issue as well.
This brings me to the EEOC’s Request No. 17, which seeks “documents sufficient to show the legal relationship between Schneider National, Inc., and Schneider National Carriers, Inc., as alleged in Paragraph 4 of Schneider’s Answer of November 11. 2004. The evidence that a Schneider employee made the recommendation that Hoefner be terminated and that the termination letter refers to Hoefner’s employment with Schneider raise sufficient questions to justify the EEOC’s request for documentation showing the precise relationship between the two entities. A request for “sufficient” documentation is hardly overly broad or burdensome. Accordingly, Schneider will be allowed thirty days to respond to this request also.
IT IS THEREFORE ORDERED that the EEOC’s motion to compel discovery (docket # 16) is granted in part and denied in part. The motion is granted in that Schneider is ordered to respond to Request No. 11, as limited herein, and Request No. 17 within thirty days of this order. The motion is denied in that Schneider need not respond to Request Nos. 15 and 16 at this time, but may await the outcome of the summary judgment motions on the issue of liability.
Dated this 2nd day of August, 2005.
s/ William C. Griesbach William C. Griesbach United States District Judge
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 AO 450 (Rev. 5/85) Judgment in a Civil Case q
United States District Court
EASTERN DISTRICT OF WISCONSIN
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, JUDGMENT IN A CIVIL CASE
v. Case No. 04-C-875
SCHNEIDER NATIONAL, INC., Defendant.

9 Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury has rendered its verdict.
: Decision by Court. This action came before the Court for consideration.
IT IS HEREBY ORDERED AND ADJUDGED that the plaintiff’s motion for summary judgment is denied and the defendant’s motion for summary judgment is granted. The case is dismissed.

Approved:

s/ William C. Griesbach WILLIAM C. GRIESBACH United States District Judge

Dated: June 1, 2006.

SOFRON B. NEDILSKY Clerk
s/ Cheryl A. Veazie (By) Deputy Clerk

 E.E.O.C. v. Schneider Nat., Inc., Not Reported in F.Supp.2d (2006)

2006 WL 1519283 United States District Court,
E.D. Wisconsin.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
SCHNEIDER NATIONAL, INC., Defendant.
No. 04-C-875. | May 31, 2006.
Attorneys and Law Firms
Dennis R. McBride, Jean P. Kamp, Rosemary J. Fox, Milwaukee, WI, for Plaintiff.
Alison B. Willard, Mark A. Casciari, James L. Curtis, Seyfarth Shaw LLP, Chicago, IL, for Defendant.
Opinion
DECISION AND ORDER
GRIESBACH, J.
*1 In this Americans with Disabilities Act case, the EEOC claims defendant Schneider National, a trucking company, discriminated against its employee, Jerome Hoefner, when it fired him after what the EEOC describes as a single fainting episode. Schneider claims it was not violating the ADA, but merely enforcing its safety standards and protecting Hoefner and the public from the potential that he might faint again while driving a truck carrying 80,000 pounds of cargo. It also states it never believed Hoefner was “disabled” under the ADA. Both parties have filed motions for summary judgment. For the reasons stated herein, Schneider’s motion will be granted and the EEOC’s motion denied.
I. Background The facts in this case are largely undisputed. In 2000, a Schneider driver drove off a bridge and died as a result. The driver had been diagnosed with neurocardiogenic syncope, although the cause of the accident was undetermined. Nevertheless, the company instituted a policy that automatically disqualified from driving anyone diagnosed with neurocardiogenic syncope. The policy reads as follows:

SYNCOPE

If reason for syncopal episode cause is diagnosed and treated, driver may be eligible to return to work after cleared by physician, receipt of medical records to support this and DOT certification. If reason for syncopal episode is unknown driver must have the following:

1. Cardiac Evaluation, testing ordered by cardiologist, sni rtw [sic] slip from a cardiac standpoint.

2. Neural Evaluation, testing ordered by neurologist, sni rtw [sic] slip; from neurological standpoint

3. Negative tilt table report

The following are automatic disqualifying diagnosis for Schneider National:

1. Vaso-vagal syncope

2. Neurocardiogenic syncope

3. Pertussive syncope

This needs to be informed to driver & STL via

telephone conversation and written follow up sent to

the

driver

(Form

letter:

H:sar/hr/occhealth/team/syncope driver-filled in

appropriately) A carbon copy of letter needs to be

placed in the paper file. If the cause of the syncope

after evaluation by a cardiologist and neurologist

remains unknown and testing performed is all negative

the case will be reviewed by Occupational Health. If

Occupational Health determines that the circumstances

of the case could pose a threat to the driver & motoring

public, Occupational Health will consult with Loss

Prevention Dept to make determination on [driver’s]

ability to return to work as an over-the-road truck

driver with SNI.

(Def. PFOF ¶ 34.)

Between 1989 and 2002, Jerome Hoefner had safely driven more than one million miles over the road (OTR) in Schneider trucks. In October 2002 Hoefner attended his son’s wedding and, after little sleep, went to church on an empty stomach. While at church, he experienced an unusual weakness in his hands. Later that morning, he fainted. Although it was his first such episode, he went to the hospital and a series of tests ensued over the next several weeks. Of particular focus is the “tilt table” test, in which the subject is strapped to a table that then tilts to an upright or steeply-angled position. The test is meant to
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E.E.O.C. v. Schneider Nat., Inc., Not Reported in F.Supp.2d (2006)

measure the patient’s heart rate and other vital signs to determine how he reacts to the change in position.
*2 On October 10, Hoefner experienced abnormal symptoms on two different tilt table tests and was diagnosed with neurocardiogenic syncope. He underwent two more tests on October 23, and again experienced symptoms such as lightheadedness. Doctors placed him on a drug called Florinex and, on October 31, Hoefner passed the tilt table test. Nevertheless, on November 6 Hoefner was told he would “no longer be driving an orange truck” for Schneider again. Hoefner wrote the company seeking reinstatement and expressing his view that he had been wronged. In response to that letter, his former supervisor, Michael Hinz, wrote the following in January 2003:
Dear Jerry,
[ ... ]First of all, thank you for your many years of service, loyalty, and safe driving. As a distinguished member of our Million Mile Club, I know how important safety is to you. For many years you have lived out the Schneider Safety Creed, “Nothing we do is worth getting hurt or hurting others”.
It is in this same spirit that I must communicate a very tough message. You will not be allowed to return to work, as a driver, with Schneider National, Inc. I know this must seem like a very strict and rigid decision.
Jerry, we simply cannot take the risk that while driving, you would lose consciousness. This obviously would put you and the motoring public in grave danger.
This decision is in keeping with Schneider’s medical qualification policy and that of the Federal Motor Carriers Safety Regulations 390.1(d) and 391.41(b)(8).
We do deeply respect what you have given to this company. I encourage you to review the open non-driving positions that Schneider National, Inc. can offer you and consider applying for these positions.
Again, thank you for your years of service.
(McBride Decl., Ex. 26.1)

1

The exhibit is variously described as “attachment 26”

and “deposition exhibit 22;” it appears electronically as

attachment 31 to the McBride declaration.

After receiving the unfavorable response to his request to return to work, Hoefner sought work elsewhere and in July 2003 began driving trucks for another company. He has since received a renewal of his medical certificate and has repeatedly been cleared to drive by doctors. In May

2003 Hoefner filed a complaint with the EEOC, and the EEOC filed this lawsuit in September 2004, alleging that Schneider terminated Hoefner based on a perceived disability in violation of the ADA.
II. Analysis
1. ADA “Regarded As” Claim To prevail on its ADA claim, the EEOC must prove three elements: (1) Hoefner was “disabled” within the meaning of the ADA; (2) Hoefner was “qualified” to perform the job at issue; and (3) Schneider subjected him to an adverse employment action. Nese v. Julian Nordic Constr. Co., 405 F.3d 638, 641 (7th Cir.2005). Because there is no dispute that Hoefner was qualified to drive for Schneider or that his termination was an adverse employment action, the only issue in this case is whether Hoefner was “disabled” under the ADA. As to that element, an individual is deemed “disabled” under the ADA if he (a) has a physical or mental impairment that substantially limits one or more of his major life activities; (b) has a record of such an impairment; or (c) is regarded as having such an impairment. Id.; 42 U.S.C. § 12102(2). “If his condition does not meet one of these categories even if he was terminated because of some medical condition, he is not disabled within the meaning of the Act. The ADA is not a general protection for medically afflicted persons.” Nese, 405 F.3d at 641.
*3 Narrowing the disability issue further, it is agreed that Hoefner is not actually disabled under sections (a) or (b); that is, as I noted in a previous order, one fainting episode does not substantially limit any of Hoefner’s major life activities. The EEOC proceeds instead under subsection (c), claiming that Hoefner was disabled under the ADA because he was “regarded as” having a physical impairment that substantially limited a major life activity. The “regarded as” prong of the definition was meant to protect employees from discrimination on the basis of “ ‘myths, fears and stereotypes’ associated with disabilities.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (citing 29 C.F.R. pt. 1630 App. § 1630.2(1)). That is, the ADA protects even nondisabled individuals so long as their employer actually perceived them as being disabled.
In Sutton, the Supreme Court found that to be “regarded as disabled,” a plaintiff must show “(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that the person’s actual, nonlimiting impairment substantially limits one or more major life activities.” Id. Here, because the existence of the impairment was real, only the second part of the analysis applies: the question is whether Schneider mistakenly believed that Hoefner’s
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E.E.O.C. v. Schneider Nat., Inc., Not Reported in F.Supp.2d (2006)

neurocardiogenic syncope substantially limited one or more of his major life activities. Id. (“regarded as” analysis applies when employer believes “one has a substantially limiting impairment when, in fact, the impairment is not so limiting.”)
Answering this question involves one final definitional step. The EEOC must show that Schneider mistakenly believed Hoefner was substantially limited in engaging in a “major life activity,” which the EEOC in this case defines as “working.” Schneider disputes whether working is properly deemed a major life activity; but I will follow the precedent in this circuit and assume for present purposes that it is. Kupstas v. City of Greenwood, 398 F.3d 609, 612 (7th Cir.2005); Nese, 405 F.3d at 643 (“To show that he was disabled under the ADA, Nese must show that Nordic was aware of his impairment (which it was) and that Nordic believed that he was substantially limited in a major life activity (in this case, working) because of the impairment.”); but see Sutton, 527 U.S. at 490-93;
Synthesizing all of the above, the EEOC must show that Schneider regarded Jerome Hoefner as being substantially limited in the major life activity of working. When determining whether an employer believes an employee is substantially limited in his ability to work, courts have cited two additional considerations. First, the analysis cannot be limited only to the employer in question. In other words, the EEOC must show that Schneider believed Hoefner was unable to work for any trucking company, not just Schneider. “Section 12102(2) looks beyond the plaintiff’s inability to satisfy one employer.” Nese, 405 F.3d at 643. Second, and relatedly, the employer must believe the employee is unable to work in a broad class of jobs. Applying these factors in another case, the Seventh Circuit set forth the applicable analysis:
*4 [Plaintiff] first alleges that she is substantially limited in the major life activity of working. In this context, “substantially limits” means “significantly restricts the ability to perform a class of jobs or a broad range of jobs in various classes.” As this Court has made explicit, however, “ ‘an inability to perform a particular job for a particular employer’ is not sufficient to establish a substantial limitation on the ability to work; rather, ‘the impairment must substantially limit employment generally.” ’ Thus, for Skorup to defeat Modern Door’s motion for summary judgment, she must provide some evidence establishing a genuine issue of material fact over whether her condition resulted in her being substantially limited from employment generally.
Skorup v. Modern Door Corp., 153 F.3d 512, 514-15 (7th Cir.1998) (citations omitted). Thus, in order to show that Schneider viewed Hoefner as substantially limited in the major life activity of working, the EEOC must

demonstrate that: (1) Schneider viewed Hoefner as unable to drive OTR trucks for any company, not just for Schneider, and (2) driving commercial trucks OTR is a broad class of jobs.
2. Schneider Only Viewed Hoefner as Unable to Drive for Schneider Schneider first argues that it only believed Hoefner was unable to continue working as a truck driver for Schneider. That is, in firing Hoefner Schneider was only enforcing its own idiosyncratic syncope policy, not making a general pronouncement about Hoefner’s ability to drive trucks generally. Because the ADA “looks beyond the plaintiff’s inability to satisfy one employer,” Schneider believes it is not liable. Nese, 405 F.3d at 643.
The EEOC counters that Schneider’s communications to Hoefner are to the contrary. In particular, the letter from Hoefner’s supervisor expressed regret that Hoefner could not continue to work for Schneider because of the risk that he would faint while driving: “Jerry, we simply cannot take the risk that while driving, you would lose consciousness. This obviously would put you and the motoring public in grave danger.” (McBride Decl., Ex. 26.) In addition, the company’s syncope policy was instituted in response to an earlier accident, which the EEOC believes shows that Schneider believed all syncope-diagnosed drivers were dangerous. Further, deposition testimony from Wendy Sullivan, a Schneider nurse, echoed the belief that Hoefner posed a threat to himself and the public. Because Schneider believed a syncope diagnosis was so dangerous, the argument goes, it could not have believed that Hoefner was only limited from working at Schneider-it must also have believed that Hoefner could not have driven trucks for any employer.
I conclude that the evidence supporting the EEOC’s view is thin. First, some of the evidence it cites actually supports Schneider’s position. The letter from Hoefner’s supervisor, for instance, indicates that “we simply cannot take the risk ...,” which suggests the decision was simply based on Schneider’s own risk tolerance rather than on any broad-based belief about Hoefner’s ability to drive commercial trucks in general. The letter in fact is replete with references to Schneider’s (and Hoefner’s) commitment to its own safety standards. In other words, the letter from Hinz fits squarely within Schneider’s position that it was merely enforcing its own policy rather than harboring a belief that Hoefner was unable to work for any OTR trucking company.
*5 Indeed, the testimony of Sullivan is even more supportive of Schneider’s position:
Q: Well, if there was just a tiny risk [of fainting] you wouldn’t have cared, would you?
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E.E.O.C. v. Schneider Nat., Inc., Not Reported in F.Supp.2d (2006)

A: Yes I would have.
Q: So any risk is too much of a risk for you?
A: Any risk with a diagnosis of neurocardiogenic syncope, yes, is too much.
(Schneider Appendix, Ex. C, Sullivan Dep. at 89-90). In addition, she believed that other trucking companies should adopt standards similar to Schneider’s, even if they had not yet done so. In her view, any minuscule risk for Schneider was “too much,” and this again supports Schneider’s position that its own strict standards were company-specific and not a judgment about any kind of substantial limitations. Schneider was simply saying it was unwilling to assume even tiny risks related to syncope, and that is apparently the category into which Hoefner fell. As his supervisor apologetically explained, “Dear Jerry, ... I know this must seem like a very strict and rigid decision.” (McBride Decl., Ex. 26.)
Indeed, the entirety of the evidence reveals that Schneider’s syncope policy was Schneider-specific and not intended to represent a belief that syncope-diagnosed drivers could not drive for any other trucking company. Even construing the evidence in the light most favorable to the government, all it shows is that the company thought there was some danger in having Hoefner drive its trucks. Of course that much is obvious, or the company would not have adopted the policy or disqualified Hoefner. But, without more, the fact that the company perceived some danger simply speaks to Schneider’s corporate risk tolerance profile rather than, as the government would have it, any belief that Hoefner was substantially limited in his ability to work.
In that sense, then, this case resembles Sutton, where the Supreme Court explained:
By its terms, the ADA allows employers to prefer some physical attributes over others and to establish physical criteria. An employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity. Accordingly, an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment-such as one’s height, build, or singing voice-are preferable to others, just as it is free to decide that some limiting, but not substantially

limiting, impairments make individuals less than ideally suited for a job.

527 U.S. at 490-91. Here, just as United Airlines preferred pilots with 20/20 vision, Schneider is simply saying that it prefers drivers who have not had an episode of syncope; while that is a “medical condition” and a limiting impairment, there is no evidence that Schneider thought it was a “substantially limiting” one.2 Id.

2

Moreover, the government’s characterization of the

evidence makes little practical sense. Schneider only

instituted its syncope policy in 2000, just two years

before it disqualified Hoefner. As a long-established

business employing thousands of truck drivers, it knew

full well that drivers with neurocardiogenic syncope

could drive (and drive relatively safely). One

death-causing accident, however, apparently convinced

Schneider that the risk was simply not worth it. If other

trucking companies wanted to assume that risk, it was

up to them-after all, it was a risk Schneider had borne

willingly (or at least unknowingly) for its entire history

until 2000.

E.E.O.C. v. J.B. Hunt Transport, Inc. is also on point. 321 F.3d 69, 75 (2d Cir.2003). There, applicants had been denied over-the-road driving positions with J.B. Hunt because of their use of medications with potentially harmful side effects. The court, however, found no evidence that the employer viewed the applicants as being unable to drive any trucks for any employer; instead, the court noted that “Hunt dismissed the applicants as unable to meet Hunt’s own safety requirements-requirements above and beyond the DOT’s industry-wide standards and unique from the requirements of other trucking companies.” Id. There, as here, the company was entitled to adopt and enforce its own standards without necessarily making a judgment about whether the employee might be able to satisfy another company’s driving standards. The court concluded that “there is no evidence that Hunt’s reviewers, relying on Hunt’s own DRL and drug lists to make a judgment on qualification for a position at Hunt, intended to make an evaluation beyond Hunt’s specific guidelines. Nor is there sufficient evidence to support a finding that Hunt viewed the driving limitation as extending beyond Hunt.” Id. at 76. The same holds true here.
*6 The government appears to believe that it is enough to show that Schneider had a syncope policy that was medically based, and that some Schneider employees thought Hoefner posed a safety risk. The government goes a step further and argues that it “makes no sense” that Schneider would differentiate between its own safety outlook and that of other employers. (Reply Br. at 6.) If Hoefner was too dangerous to drive for Schneider, he
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E.E.O.C. v. Schneider Nat., Inc., Not Reported in F.Supp.2d (2006)

must have been too dangerous to drive for anybody. But, as discussed above, the government’s argument ignores the practical reality that employers are entitled to adopt differing medical standards as long as they do not violate the ADA; one employer’s adoption of standards does not ipso facto mean that it believes all other employers would feel the same way-a fact evidenced in this case by the fact that Hoefner now drives for another company. Moreover, accepting the government’s argument would eclipse the daylight that legions of courts have found exists between those medical disqualifications that are permissible (as in Sutton ) and those that aren’t. The government must instead show that the syncope policy was based on a belief that the disqualifying medical condition is “substantially limiting,” not just that it was based on a medical condition. “[I]f the condition that is the subject of the employer’s belief is not substantially limiting, and the employer does not believe that it is, then there is no violation of the ADA under the ‘regarded as’ prong of the statute.” Mack v. Great Dane Trailers, 308 F.3d 776, 782 (7th Cir.2002). It has not done so here.
Finally, I note that the limitation in this case bears some additional similarity to Sutton in that the medical condition is so benign. As Justice Ginsburg observed in a concurring opinion, the ADA in general (and perhaps especially the “regarded as” clause) was intended to combat discrimination against “a confined, and historically disadvantaged, class,” not the average American with a run-of-the-mill medical condition. 527 U.S. at 495 (Ginsburg, J., concurring). In that case, however, she observed,
persons whose uncorrected eyesight is poor, or who rely on daily medication for their well-being, can be found in every social and economic class; they do not cluster among the politically powerless, nor do they coalesce as historical victims of discrimination. In short, in no sensible way can one rank the large numbers of diverse individuals with corrected disabilities as a “discrete and insular minority.”
Id. Thus, Justice Ginsburg concluded it would make little sense to apply the ADA to those with poor (though correctable) eyesight because they are not in any way a disadvantaged class. Similarly, to the extent the EEOC alleges Hoefner’s syncope is treatable (or fully treated) with medication, the ADA would seem to offer little protection. And to the extent its claim is simply that Schneider discriminated against Hoefner because of his single fainting episode, once again it is doubtful that those countless Americans diagnosed with syncope occupy the

heartland of disadvantaged classes the ADA was meant to protect.3 In any event, because the evidence shows Schneider was simply enforcing its own in-house syncope policy rather than making a universal medical diagnosis about Hoefner’s ability to drive a commercial truck, the government has not demonstrated that Schneider viewed him as substantially limited in his ability to work. For that reason, Schneider is entitled to summary judgment.

3

It is equally doubtful, perhaps, that Congress intended

the ADA to target the safety regulations of trucking

companies, airlines, or other entities whose employees

have the potential to inflict massive destruction and loss

of life in the event of an accident.

3. Schneider Did Not View Hoefner as Unable to Work in a Broad Class of Jobs *7 Even if Schneider did believe Hoefner could not drive OTR trucks for any company, that is not enough. As noted earlier, to regard Hoefner as substantially limited in his ability to work Schneider must have believed he was unable to perform in a broad class of jobs. Sutton, 527 U.S. at 491. Because an inability to perform only a narrow category of jobs would not constitute a substantial limitation in the employee’s ability to work, courts have repeatedly found that such classifications of jobs do not constitute broad classes of jobs. In Sutton, for example, the Supreme Court found that “global airline pilot” was too narrow a category:
Assuming without deciding that working is a major life activity ... petitioners have failed to allege adequately that their poor eyesight is regarded as an impairment that substantially limits them in the major life activity of working. They allege only that respondent regards their poor vision as precluding them from holding positions as a “global airline pilot.” Because the position of global airline pilot is a single job, this allegation does not support the claim that respondent regards petitioners as having a substantially limiting impairment. See 29 CFR § 1630.2(j)(3)(i) (1998) (“The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working”). Indeed, there are a number of other positions utilizing petitioners’ skills, such as regional pilot and pilot instructor to name a few, that are available to them.
Id. at 492-93. See also Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1370 (11th Cir.1998) (finding that piloting airplanes is not a class of jobs). Other examples abound. For instance, in Sheehan v. City of Gloucester, the First Circuit held:
[A]lthough the record clearly sets
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E.E.O.C. v. Schneider Nat., Inc., Not Reported in F.Supp.2d (2006)

forth the City’s belief that Sheehan was incapable of working as a Gloucester police officer due to his hypertension and risk of heart attack, this evidence is not sufficient for Sheehan to be considered disabled ... under the “regarded as” prong of the ADA ... [because Sheehan failed to show] that the City regarded his hypertension as rendering him unable to perform a broad range of jobs.
321 F.3d 21, 25-26 (1st Cir.2003).
If police officer and airline pilot are not broad classes of jobs, it would seem to follow that neither is the job of over-the-road truck driver. Indeed, that is what the Second Circuit held in E.E.O.C. v. J.B. Hunt Transport, Inc., supra, a case Schneider relies upon heavily. 321 F.3d at 75. The court affirmed the district court’s grant of summary judgment to the employer on the grounds that “[d]riving freight-carrying tractor-trailer trucks over long distances for extended periods of time is neither a ‘class of jobs’ nor a ‘broad range of jobs,’ as the EEOC alleges, but rather a specific job with specific requirements.” Id. The court reasoned:
Such a position requires specific abilities, especially the ability to stay alert over long hours under difficult conditions. A Hunt OTR driver’s alertness cannot flag. He or she must be able to stay alert and withstand the mesmerizing affect of driving an eighteen-wheel vehicle for hours at a stretch, sometimes at night, with continuous vibration over long distances. Given these demanding requirements, the fact that one may not be able to perform the specific job of a Hunt OTR driver does not mean that one could not successfully engage in other types of truck driving, let alone in other kinds of safety-sensitive work.
*8 Id. (italics added).

ability to work as a truck driver.” 107 F.3d 544, 548 (7th Cir.1997). Best, however, is distinguishable for several reasons. First, the court in Best did not even discuss whether “truck driver” constituted a broad class of jobs. Thus, because the issue was apparently not even before the court, the EEOC’s claim that Best is “controlling precedent” is doubtful. Second, Best drove a gas truck and had a physical limitation resulting from a knee injury. There was thus evidence from which a jury could conclude that the employer thought Best could not drive any trucks. That is a much broader class of work than is at issue here, where Schneider excluded Hoefner from driving OTR, a position that seems to require driving at least one-hundred thousand miles per year. See Baulos v. Roadway Exp., Inc., 139 F.3d 1147, 1154 (7th Cir.1998) (“This situation is different than in Best where the employer indicated that it did not believe that Best was capable of driving any truck.”); J.B. Hunt, 321 F.3d at 75 (“the fact that one may not be able to perform the specific job of a Hunt OTR driver does not mean that one could not successfully engage in other types of truck driving.”) Thus, even if Best stands for the principle that truck driving in general is a large enough class of jobs, there is no evidence here that Schneider believed Hoefner could not drive any truck, period. Finally, Best predated Sutton. As discussed above, the Sutton court found that global airline pilot was not an appropriate class of jobs, and circuit courts since then, including J.B. Hunt, have followed the Supreme Court’s lead. Accordingly, I do not find that the law in the Seventh Circuit is settled on this point and, even if it is, the extent of Best’ s holding is not as broad as the EEOC would have it. I agree instead with the reasoning of J.B. Hunt and conclude that commercial OTR driving, like global airline piloting, is not a sufficiently large class of jobs such that exclusion from the class would constitute a substantial limitation on working. Because the EEOC has not shown that Schneider regarded Hoefner as substantially limited in his ability to work in a class of jobs, its ADA claim must fail for this reason as well.4

4

In addition, Schneider makes the argument that the

proper defendant in this case is actually Schneider

National Carriers, Inc. rather than Schneider National,

Inc. The former company is a wholly-owned subsidiary

of Schneider National, and the government argues it is

a “joint employer” and therefore also liable. For the

reasons given herein, however, it is not necessary to

reach this question because there was no ADA

violation.

Although J.B. Hunt is directly on point, the EEOC’s position is that the case is irrelevant because the Seventh Circuit has held differently. In Best v. Shell Oil Co., the court reversed a grant of summary judgment for the employer because it found “[a] reasonable trier of fact could find that Best’s bad knee substantially limited his

4. Conclusion The EEOC claims that Schneider’s excessive, even irrational, concern for safety led it to ignore its obligations under the ADA. Employers, such as Schneider, however,
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E.E.O.C. v. Schneider Nat., Inc., Not Reported in F.Supp.2d (2006)

are allowed to adopt safety standards even when those standards disqualify people for medical reasons. Even if the policy is too strict, or even daft-which seems to be an unsubtle undercurrent in the EEOC’s argument-the policy does not flunk the ADA unless it excludes people based on a misperception that the medical condition substantially limits an employee in a major life activity. That did not happen here.
*9 The defendant’s motion for summary judgment is granted, and the plaintiff’s motion is denied. The case is

dismissed. SO ORDERED.
Parallel Citations 18 A.D. Cases 27
	
  

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CLOSED, E-FILE, PROTO
United States District Court Eastern District of Wisconsin (Milwaukee) CIVIL DOCKET FOR CASE #: 2:04-cv-00875-WCG

Equal Employment Opportunity Commission v. Schneider National Inc Assigned to: Judge William C Griesbach Case in other court: Seventh Circuit, 06-3108
USCA EEOC 07/31/06, 06-3108 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 09/13/2004 Date Terminated: 06/01/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Dennis R McBride United States Equal Employment Opportunity Commission Milwaukee District Office 310 W Wisconsin Ave - Ste 800 Milwaukee, WI 53203-2292 414-297-4188 Fax: 414-297-3146 Email: dennis.mcbride@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean P Kamp United States Equal Employment Opportunity Commission Milwaukee District Office 310 W Wisconsin Ave - Ste 800 Milwaukee, WI 53203-2292 414-297-1112 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rosemary J Fox United States Equal Employment Opportunity Commission Milwaukee District Office 310 W Wisconsin Ave - Ste 800 Milwaukee, WI 53203-2292 414-297-4131 Fax: 414-297-3146 Email: rosemary.fox@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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V. Defendant Schneider National Inc

represented by Alison B Willard Seyfarth Shaw LLP 131 S Dearborn St - Ste 2400 Chicago, IL 60603-5577 312-460-5000 Fax: 312-460-7000 Email: abwillard@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A Casciari Seyfarth Shaw LLP 131 S Dearborn St - Ste 2400 Chicago, IL 60603-5577 312-460-5000 Fax: 312-460-7000 Email: mcasciari@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L Curtis Seyfarth Shaw LLP 131 S Dearborn St - Ste 2400 Chicago, IL 60603-5577 312-460-5000 Fax: 312-460-7000 Email: jcurtis@seyfarth.com ATTORNEY TO BE NOTICED

Date Filed 09/13/2004
09/15/2004 09/15/2004 11/11/2004

#

Docket Text

1 COMPLAINT (Summons(es) issued) against Schneider National Inc. Consent Forms Distributed for Magistrate Judge Patricia Gorence. E-File Notification Distributed. jury demand; (Filing fee $ 150) filed by Equal Employment Opportunity Commission.(cms, ) Modified on 9/16/2004 to attach document disk received from filer (cms, ). (Entered: 09/14/2004)
2 REFUSAL of Consent to Jurisdiction by US Magistrate Judge by Equal Employment Opportunity Commission (cms, ) (Entered: 09/16/2004)
Case reassigned to Judge Lynn Adelman. Judge Patricia J Gorence no longer assigned to the case due to non-consent. (cms, ) (Entered: 09/16/2004)
3 ANSWER to Complaint by Schneider National Inc.(Curtis, James)

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11/11/2004 11/11/2004 11/11/2004 11/23/2004 11/30/2004 02/01/2005 02/01/2005 02/04/2005 02/28/2005 03/04/2005
03/08/2005 04/07/2005 04/11/2005 05/20/2005 05/20/2005

4 MOTION to Transfer Case to Eastern District of Wisconsin, Green Bay Division by Schneider National Inc. (Curtis, James)
5 BRIEF in Support re 4 MOTION to Transfer Case to Eastern District of Wisconsin, Green Bay Division filed by Schneider National Inc. (Curtis, James)
6 CERTIFICATE of Interest by Schneider National Inc. (Curtis, James)
7 RESPONSE to Motion re 4 MOTION to Transfer Case to Eastern District of Wisconsin, Green Bay Division filed by Equal Employment Opportunity Commission. (McBride, Dennis)
8 REPLY BRIEF in Support re 4 MOTION to Transfer Case to Eastern District of Wisconsin, Green Bay Division filed by Schneider National Inc. (Curtis, James)
9 ORDER signed by Judge Lynn Adelman on 2/1/05 granting 4 Motion to Transfer Case to Green Bay Division . (cc: all counsel) (Wesolek, Marie)
Case REASSIGNED to Judge William C Griesbach. Judge Lynn Adelman no longer assigned to the case. (djd ) (Entered: 02/02/2005)
10 NOTICE of Hearing: Rule 16 Scheduling Conference set for 3/4/2005 09:15 AM before Judge William C Griesbach. (cc: all counsel)(mec, )
11 REPORT of Rule 26(f) Plan Joint Report Under Fed. R. Civ. P. 26(f) by all plaintiffs (McBride, Dennis)
12 Minute Entry for proceedings held before Judge William C Griesbach : Scheduling Conference held on 3/4/2005. Initial Disclosures due by 3/18/2005. Factual Discovery due by 9/14/2005. Expert Discovery 11/23/2005. Plaintiffs Expert Witness List due by 7/1/2005. Defendants Expert Witness List due by 8/12/2005. Motions due by 1/13/2006, response due 2/10/2006, reply due 3/3/2006.By agreement of the parties, the plaintiff may defer disclosure of its damages and vocational experts until February 13,2006 (if no dispositive summary judgment motions are filed) or 30 days after the court rules ondispositive summary judgment motions, in which case the defendant shall disclose its damages and vocational experts within 45 days thereafter and discovery of all damages and vocational experts shall be completed within 60 days after the defendant's disclosure. (mec, ) (Entered: 03/08/2005)
13 SCHEDULING ORDER: signed by Judge William C Griesbach on March 8, 2005. (cc: all counsel)(Griesbach, William)
14 MOTION for Protective Order by Schneider National Inc. (Attachments: # 1)(Willard, Alison)
15 PROTECTIVE ORDER signed by Judge William C Griesbach on 4/11/2005. (cc: all counsel)(Griesbach, William)
16 MOTION to Compel by all plaintiffs. (McBride, Dennis)
17 DOCKETED IN ERROR as MOTION to Compel Brief by all plaintiffs. (McBride, Dennis) Modified on 7/6/2005 to reflect incorrect event docketed.(mec, ).

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05/20/2005
05/20/2005 05/20/2005 05/25/2005 06/06/2005 06/07/2005
06/17/2005 06/28/2005
07/06/2005 07/20/2005 07/20/2005 07/20/2005 07/20/2005
07/21/2005

18 BRIEF IN SUPPORT re 16 Motion to Compel DOCKETED AS REPLY BRIEF in Support re 17 MOTION to Compel Brief Memorandum in Support of Plaintiff's Motion to Compel Discovery Responses filed by all parties. (McBride, Dennis) Modified on 7/6/2005 to reflect correct docketing event and link to correct motion (mec, ).
19 AFFIDAVIT of Dennis R. McBride in Support of Plaintiff's Motion to Compel Discovery Responses (McBride, Dennis) Additional attachment(s) added on 5/31/2005 (mec, ).
20 CERTIFICATE OF SERVICE by all parties (McBride, Dennis)
21 Docket Annotation: E-mail to Mr. McBride. Unable to access and attach exhibits to entry 19. Send new disk. (cav, )
22 First MOTION for Extension of Time to File Response to Plaintiff's Motion to Compel by Schneider National Inc. (Attachments: # 1 Affidavit)(Willard, Alison)
MARGIN ORDER granting 22 First MOTION for Extension of Time to File Response to Plaintiff's Motion to Compel filed by Schneider National Inc., signed by Judge William C. Griesbach on 06-07-2005. Defendant may file its response, if any, to plaintiff?s motion to compel discovery responses on or before June 17, 2005. (cc: all counsel)(Griesbach, William)
23 RESPONSE to Motion re 16 MOTION to Compel filed by Schneider National Inc. (Attachments: # 1 Exhibit)(Willard, Alison)
24 REPLY BRIEF in Support re 16 Motion to Compel INCORRECTLY LINKED TO 17 MOTION to Compel Brief Reply Memorandum in Support of Plaintiff's Motin to Compel Discovery Responses filed by all plaintiffs. (McBride, Dennis) Modified on 7/6/2005 to reflect link to correct motion. (mec, ).
25 Docket Annotation. CMECF email sent to Attorney McBride regarding docketing event. (mec, )
26 MOTION to Exclude Plaintiff's Experts by Schneider National Inc. (Willard, Alison)
27 DUPLICATE ENTRY SEE DOCUMENT 28 BRIEF in Support re 26 MOTION to Exclude Plaintiff's Experts filed by Schneider National Inc. (Willard, Alison) Modified on 7/21/2005 duplicate entry (mec, ).
28 BRIEF in Support re 26 MOTION to Exclude Plaintiff's Experts filed by Schneider National Inc. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Willard, Alison)
29 7.4 EXPEDITED MOTION to Hold Deadline for Disclosure of Defendant's Expert Witnesses in Abeyance DOCKETED AS MOTION to Expedite - Rule 7.4 Expedited Non-Dispositive Motion to Hold Deadline for Disclosure of Defendant's Expert Witnesses in Abeyance by Schneider National Inc. (Willard, Alison) Modified on 7/21/2005 to reflect 7.4 motion (mec, ).
30 Docket Annotation. CMECF to Attorney Allison Willard regarding docketing event used for Document 29. (mec, )

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08/01/2005
08/02/2005 08/02/2005 08/02/2005 08/02/2005 08/02/2005
08/16/2005 09/08/2005 09/09/2005 09/09/2005 11/04/2005 01/09/2006 01/10/2006
01/20/2006

MARGIN ORDER granting 29 Rule 7.4 Expedited Non-Dispositive Motion to Hold Deadline for Disclosure of Defendant's Expert Witnesses in Abeyance filed by Schneider National Inc., signed by Judge William C. Griesbach on 08-01-2005. No response to 29 has been received by the plaintiff. Therefore, this Court holds the deadline for defendant's disclosure of expert witnesses in accordance with Civil L.R. 26.1(a) and (b) in abeyance for 30 days following the Court's ruling on defendant's Motion to Exclude. (cc: all counsel)(Griesbach, William)
31 BRIEF in Opposition re 26 MOTION to Exclude Plaintiff's Experts Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Exclude Plaintiff's Experts filed by all plaintiffs. (McBride, Dennis)
32 DECLARATION of Dennis R. McBride in Opposition to Defendant's Motion to Exclude Plaintiff's Experts (McBride, Dennis)
33 CERTIFICATE OF SERVICE by all plaintiffs (McBride, Dennis)
34 BRIEF Plaintiff's Memorandum in Opposition to Defendant's Rule 7.4 Non-Dispositive Motion to Hold Deadline for Disclosure of Defendant's Expert Witnesses in Abeyance filed by all plaintiffs. (McBride, Dennis)
35 ORDER granting in part and denying in part 16 Motion to Compel signed by Judge William C Griesbach on August 2, 2005. The motion is granted in that Schneider is ordered to respond to Request No. 11, as limited herein, and Request No. 17 within thirty days of this order. The motion is denied in that Schneider need not respond to Request Nos. 15 and 16 at this time, but may await the outcome of the summary judgment motions on the issue of liability. (cc: all counsel) (Griesbach, William) (Entered: 08/03/2005)
36 REPLY BRIEF in Support re 26 MOTION to Exclude Plaintiff's Experts filed by Schneider National Inc. (Willard, Alison)
37 STIPULATION Regarding Authentication of Documents by all parties (McBride, Dennis)
38 Docket Annotation: E-mail to Mr McBride regarding docket entry 37. Proposed order should be sent to proposed order mailbox. (cav, )
MARGIN ORDER approving 37 Stipulation filed by Equal Employment Opportunity Commission, and Schneider National, Inc. signed by Judge William C. Griesbach on 09-09-2005. (cc: all counsel)(Griesbach, William)
39 ORDER denying 26 Motion to Exclude signed by Judge William C Griesbach on November 4, 2005. (cc: all counsel) (Griesbach, William)
40 STIPULATION for Extension of Time for Dispositive Pretrial Motions by all parties (Willard, Alison)
41 ORDER APPROVING 40 Stipulation filed by Equal Employment Opportunity Commission and Schneider National Inc signed by Judge William C Griesbach on January 10, 2006. Dispositive Motion deadline by 1/20/2006; responses due by 2/17/2006; replies due by 3/10/2006. (cc: all counsel)(Griesbach, William)
42 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission (McBride, Dennis)

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01/20/2006 01/20/2006 01/20/2006 01/20/2006 01/20/2006
01/20/2006 01/20/2006 01/20/2006
01/21/2006 01/23/2006 01/23/2006 01/24/2006
02/17/2006 02/17/2006

43 MOTION for Summary Judgment Plaintiff's by Equal Employment Opportunity Commission. (McBride, Dennis)
44 BRIEF in Support re 43 MOTION for Summary Judgment Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for SJ filed by Equal Employment Opportunity Commission. (McBride, Dennis)
45 Proposed Findings of Fact by Equal Employment Opportunity Commission (McBride, Dennis)
46 DECLARATION of Jerome T. Hoefner (McBride, Dennis)
47 DECLARATION of Dennis R. McBride IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21 # 22 # 23 # 24 # 25 # 26 # 27 # 28 # 29 # 30 # 31 # 32 # 33 # 34 # 35 # 36)(McBride, Dennis)
48 MOTION for Summary Judgment on Liability by Schneider National Inc. (Willard, Alison)
49 BRIEF in Support re 48 MOTION for Summary Judgment on Liability filed by Schneider National Inc. (Willard, Alison)
50 APPENDIX by Schneider National Inc of Documentary Evidence and Other Material in Support of Its Motion for Summary Judgment (Attachments: # 1 Exhibit Tab A Hoefner Dep# 2 Exhibit Tab B Hyer Dep# 3 Exhibit Tab C Sullivan Dep# 4 Exhibit Tab D Hinz Dep# 5 Exhibit Tab E Benditt Dep# 6 Exhibit Tab F Capodice Dep# 7 Exhibit Tab G Gellin Decl# 8 Exhibit Tab H Jadin Aff# 9 Exhibit Tab I Dep Exhs 1# 10 Exhibit Tab I Dep Exhs 2# 11 Exhibit Tab I Dep Exhs 3# 12 Exhibit Tab I Dep Exhs 4# 13 Exhibit Tab I Dep Exhs 5# 14 Exhibit Tab I Dep Exhs 6# 15 Exhibit Tab J Unpublished Opinions 1# 16 Exhibit Tab J Unpublished Opinions 2# 17 Exhibit Tab J Unpublished Opinions 3)(Willard, Alison)
51 Proposed Findings of Fact by Schneider National Inc (Willard, Alison)
52 Docket Annotation. CMECF Email sent to Dennis McBride in reference to electronic signature regarding 46 Declaration. (mec, )
53 MOTION for Leave to File Defendant's Local Rule 56.2(a) Proposed Findings of Fact Instanter by Schneider National Inc. (Willard, Alison)
MARGIN ORDER granting 53 MOTION for Leave to File Defendant's Local Rule 56.2(a) Proposed Findings of Fact Instanter filed by Schneider National Inc., signed by Judge William C. Griesbach on 01-24-2006. (cc: all counsel)(Griesbach, William)
54 BRIEF in Opposition re 48 MOTION for Summary Judgment on Liability Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment filed by all plaintiffs. (McBride, Dennis)
55 Proposed Findings of Fact by all plaintiffs (McBride, Dennis)

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02/17/2006 02/17/2006 02/17/2006 02/17/2006 02/17/2006
03/10/2006 03/10/2006
03/10/2006
03/10/2006 03/10/2006 05/31/2006 06/01/2006

56 RESPONSE to Motion re 48 MOTION for Summary Judgment on Liability Plaintiff's Response to Defendant's Proposed Findings of Fact in Opposition to Defendant's Motion for Summary Judgment filed by all plaintiffs. (McBride, Dennis)
57 CERTIFICATE OF SERVICE by all plaintiffs (McBride, Dennis)
58 RESPONSE to Motion re 43 MOTION for Summary Judgment Plaintiff's and in Support of Schneider's Motion for Summary Judgment filed by Schneider National Inc. (Willard, Alison)
59 RESPONSE to Motion re 43 MOTION for Summary Judgment Plaintiff's Response to Plaintiff's Proposed Findings of Fact and Additional Facts Precluding Summary Judgment for Plaintiff filed by Schneider National Inc. (Willard, Alison)
60 APPENDIX by Schneider National Inc of Documentary Evidence and Other Material in Support of Its Additional Facts Precluding Summary Judgment for Plaintiff (Attachments: # 1 Exhibit Dr. Scott Miller Expert Report# 2 Exhibit Dr. Scott Miller Deposition Transcript# 3 Exhibit Dr. Scott Miller Deposition Corrections# 4 Exhibit Unpublished opinions cited in Defendant's Response)(Willard, Alison)
61 CERTIFICATE OF SERVICE by all plaintiffs (McBride, Dennis)
62 REPLY BRIEF in support of 43 MOTION for Summary Judgment DOCKETED AS REPLY BRIEF in Support re 48 MOTION for Summary Judgment on Liability Reply Memorandum in Support of Plaintiff's Motion for Summary Judgment filed by all plaintiffs. (McBride, Dennis) Modified on 3/13/2006 to reflect corrected association to plaintiff's motion (mec, ).
63 RESPONSE to Motion re 53 MOTION for Leave to File Defendant's Local Rule 56.2(a) Proposed Findings of Fact Instanter Plaintiff's Reply to Defendant's Response to Proposed Findings of Fact in Support of Plaintiff's Motion for Summary Judgment and Response to Defendant's Additional Proposed Findings of Fact filed by all plaintiffs. (McBride, Dennis)
64 REPLY BRIEF in Support re 48 MOTION for Summary Judgment on Liability filed by Schneider National Inc. (Attachments: # 1 Exhibit Tab A, unpublished opinion Piano v. Ameritech/SBC)(Willard, Alison)
65 RESPONSE to Motion re 43 MOTION for Summary Judgment Plaintiff's Defendant's Response to Plaintiff's Second Proposed Findings of Fact filed by Schneider National Inc. (Willard, Alison)
66 DECISION AND ORDER signed by Judge William C. Griesbach on 05-31-2006 denying 43 Plaintiff's Motion for Summary Judgment and granting 48 Defendant's Motion for Summary Judgment. See Decision and Order for full detail. (cc: all counsel) (Griesbach, William)
67 JUDGMENT signed by Deputy Clerk and approved by Judge William C Griesbach on 05/31/06. (cc: all counsel)(cav, )

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06/13/2006 06/14/2006 07/18/2006
07/31/2006 07/31/2006 07/31/2006 07/31/2006 08/01/2006 08/01/2006 08/01/2006 08/04/2006 08/07/2006
08/07/2006 08/09/2006
08/09/2006 08/16/2006 10/24/2006 01/08/2007 01/08/2007

68 BILL OF COSTS Proposed by Schneider National Inc (Attachments: # 1 Appendix Itemization and Documentation)(Willard, Alison)
69 BRIEFING LETTER Mailed to Parties (cav, )
70 COSTS TAXED for Schneider National Inc by Chief Deputy Clerk in amount of $5,014.79 against Equal Employment Opportunity Commission. (cc: all counsel) (cav, )
71 NOTICE OF APPEAL (facsimilie) as to 67 Judgment by Equal Employment Opportunity Commission. (cc: all counsel) (mec, )
72 CERTIFICATE OF SERVICE (facsimilie) by Equal Employment Opportunity Commission. (mec, )
75 ORIGINAL DOCUMENT re 71 Notice of Appeal. (mec, ) (Entered: 08/02/2006)
76 ORIGINAL DOCUMENT re 72 Certificate of Service. (mec, ) (Entered: 08/02/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 71 Notice of Appeal. (mec, )
73 MOTION to Stay Payment of Costs by Equal Employment Opportunity Commission. (McBride, Dennis)
74 DECLARATION of Dennis R. McBride in Support of Plaintiff-Appellant's Motion to Stay Payment of Costs (McBride, Dennis)
77 RESPONSE to Motion re 73 MOTION to Stay Payment of Costs filed by Schneider National Inc. (Casciari, Mark)
78 RESPONSE to Motion re 73 MOTION to Stay Payment of Costs Reply Memorandum in Support of Plaintiff-Appellant's Motion to Stay Payment of Costs filed by Equal Employment Opportunity Commission. (McBride, Dennis)
79 NOTICE OF DOCKETING for USCA Case Number 06-3108 Seventh Circuit re: 71 Notice of Appeal filed by Equal Employment Opportunity Commission. (mec, )
80 ORDER signed by Judge William C. Griesbach on 08-09-2006, granting 73 Motion to Stay. The EEOC's motion for a stay is GRANTED and the payment of costs willbe stayed pending its appeal. (cc: all counsel) (Griesbach, William)
Appeal Record Prepared re 71 Notice of Appeal. (mec, )
81 NOTICE of Change of Address by Mark A Casciari (Casciari, Mark)
82 LETTER from Mark A. Casciari Requesting Appellate Record. (Casciari, Mark)
83 Appeal Record Request received from 7th Cir. Re: USCA Case Number 06-3108. (mec)
Certified Record on Appeal Transmitted to US Court of Appeals consisting of 1 Volume of Pleadings, 8 Loose Pleadings (Dkt. #s 19, 23, 28, 32, 47, 50 (Part 1), 50 (Part 2), 60 re 71 Notice of Appeal. (cc: all counsel) (mec)

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05/31/2007 05/31/2007

Appeal Record Returned consisting of 1 Volume of Pleadings, 8 Volumes of Loose Pleadings re 71 Notice of Appeal. (mec)
84 USCA Mandate (certified copy) as to 71 Notice of Appeal filed by Equal Employment Opportunity Commission for USCA Number 06-3108. USCA AFFIRMED the decision of the district court. (Attachments: # 1 Slip Opinion)(mec)

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US Court of Appeals for the Seventh Circuit Case Summary

Court of Appeals Docket #: 06-3108 Nsuit: 2442 Civil Rights Jobs-US Def EEOC v. Schneider Nat'l Inc Appeal from: United States District Court

Filed: 8/3/06

Lower court information: District: 0757-1 : 04 C 875 Ordering Judge: William C. Griesbach, Judge

3/21/07 3/26/07 3/28/07
3/28/07 4/3/07 5/4/07 5/11/07
5/16/07 5/22/07 5/30/07
6/4/07

ORDER: Final judgment filed per opinion. With costs: y. [06-3108] [2086129-1] (hudk)
Filed motion by Thomas E. Vandenberg and Miles S. Mittlestadt to be added as additional counsel of record for the defendant-appellee. [2087720-1] [06-3108] (mank)
ORDER issued GRANTING motion to add attorneys only to the extent that attorneys Thomas E. Vandenberg and Miles S. Mittelstadt shall be added as counsel of record for appellee Schneider National, Inc. as of the date of this order. [2087720-1] GMM [06-3108] (mank)
Attorney Thomas E. Vandenberg, Miles S. Mittelstadt added for Appellee Schneider Nat'l Inc per order of 3/28/07. [06-3108] (mank)
Filed Appellee Schneider Nat'l Inc Bill of Costs in the amount of $156.60. [06-3108] [2012163-1] (eric)
Filed 30c Petition for Rehearing and Petition for Rehearing Enbanc by Appellant EEOC. Dist. [06-3108] [2100722-1] (mank)
Filed motion by The American Diabetes Associat, The Epilepsy Foundation, and Equip for Equality to file amicus brief in support of Petition for Rehearing en banc. 15c amicus brief tendered. [2102450-1] [06-3108] (mank)
ORDER issued DENYING motion to file amicus brief. [2102450-1] GMM [06-3108] (mank)
ORDER: Appellant EEOC Petition for Rehearing and Petition for Rehearing Enbanc is DENIED. [06-3108] [2100722-1] (mank)
MANDATE ISSUED AND ENTIRE RECORD RETURNED WITH BILL OF COSTS IN THE AMOUNT OF $156.60. (Contents returned: 1 vol.
pleadings; 8 vol. of loose pleadings. ) [06-3108] [2012163-1] (josh)
Filed mandate receipt. [06-3108] [2112908-1] (andb)

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 481 F.3d 507 (2007)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v.
SCHNEIDER NATIONAL, INC., Defendant-Appellee.
No. 06-3108.
United States Court of Appeals, Seventh Circuit.
Argued February 13, 2007. Decided March 21, 2007.
508 *508 Dori K. Bernstein (argued), Equal Employment Opportunity Commission, Washington, DC, for PlaintiffAppellant.
Mark A. Casciari (argued), Seyfarth Shaw, Chicago, IL; Thomas E. Vandenberg, General Counsel, and Miles S. Mittelstadt, Associate General Counsel, Schneider National, Inc. (briefed), for Defendant-Appellee.
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge.
In 2002, shortly after receiving an award from his employer, the Schneider trucking company, for having driven a million miles for the company without an avoidable accident, Jerome Hoefner had a fainting spell and was diagnosed with a condition called "neurocardiogenic syncope." This is a disorder of the nervous system that can produce a sudden drop in blood pressure that in turn reduces the amount of blood reaching the brain, causing the person with the disorder to faint. Schneider's policy is (with a possible exception discussed later in this opinion) not to employ a truck driver who has the disorder, although it is treatable with medicines such as Florinef and does not prevent a person from satisfying the safety standards required by federal law of anyone who drives, on 509 a public highway, a truck that weighs (with its *509 load) at least 26,001 pounds or is used to transport hazardous materials or at least 16 passengers. 49 U.S.C. § 31136(a)(3); 49 C.F.R. §§ 383.5, 391.11(a).
After being dismissed by Schneider, Hoefner obtained a similar job with another trucking company. Nevertheless the EEOC brought suit on Hoefner's behalf against Schneider, contending that the company had fired him because it mistakenly believes that neurocardiogenic syncope is a disabling condition within the meaning of the Americans with Disabilities Act, which among other things forbids discrimination in employment against persons mistakenly believed to be disabled. 42 U.S.C. § 12102(2)(C). The district court granted summary judgment for Schneider, precipitating this appeal.
There usually and here are two issues to resolve in such a case. The first is whether the employer's decision to terminate or take some other adverse employment action against the employee was motivated by a mistaken belief that the condition precludes him from engaging in some activity. If so, the second question is whether the activity that the employer mistakenly believes the employee to be disabled from engaging in is a "major life activit [y]." Id., §§ 12102(2)(A), (C). Suppose an employer mistakenly thinks that a person who has a hernia cannot lift 150 pounds and therefore is disabled from working for a moving company that specializes in moving refrigerators and grand pianos. The lifting of 150 pounds is not a major life activity. So unless the employer thought that a hernia that prevented such lifting substantially limited a life activity that is major 0907 maybe the employer thinks that anyone who can't lift 150 pounds is incapable of any type of gainful employment 0907 the employee would not be "regarded [by the employer] as having such an impairment," § 12102(2)(C), and so the employer would not have violated the Act. E.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 489-91, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); Rooney v. Koch Air, LLC, 410 F.3d 376, 382 (7th Cir.2005).
The Commission's case relies primarily on statements by a nurse who heads Schneider's occupational health unit and believes that anyone with Hoefner's condition should be disqualified from driving Schneider's trucks as "a matter of safety and direct threat." But the reason for this belief, as she further explained and the Commission

does not question, is that two years before Hoefner's fainting spell another driver for Schneider, Michael Kupsky, whom Schneider had hired shortly after Kupsky had been diagnosed with neurocardiogenic syncope while driving for another trucking company, had driven a Schneider truck off a bridge and been killed. Schneider was "advised that it appeared that [Kupsky] may have fallen asleep" at the wheel. The incident precipitated the company's adoption of a "zero tolerance" policy for drivers with neurocardiogenic syncope. The nurse stated that "Schneider made the right decision after the Kupsky accident. . . . [W]e don't know what caused that accident. We'll never know. And Schneider is not going to take the chance that . . . that horrible accident happens to anybody else." The executive who fired Hoefner echoed what the nurse had said: "we simply cannot take the risk that while driving, you would lose consciousness."
There is nothing to suggest that Schneider has a mistaken understanding of neurocardiogenic syncope. It simply is unwilling to risk a repetition (a possible repetition, since Kupsky's autopsy could not determine whether he had fainted and if so whether that was why he had veered off the road) of the Kupsky calamity. The risk is not zero, as 510 the EEOC suggests, *510 even if Florinef is totally efficacious, because Hoefner could forget to take his medicine. Anyway the drug is not totally efficacious. It merely reduces the risk of dehydration, and that is only one risk factor for neurocardiogenic syncope.
No doubt the risk that a person afflicted with this disorder will faint while driving is small, as otherwise Hoefner wouldn't be allowed to drive big trucks, as he is, for the trucking company that with full knowledge of his medical history hired him after Schneider fired him. But Schneider is entitled to determine how much risk is too great for it to be willing to take. "[A]n employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment 0907 such as one's height, build, or singing voice 0907 are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." Sutton v. United Air Lines, Inc., supra, 527 U.S. at 491, 119 S.Ct. 2139. The fact that another employer and, as in all such cases, the worker himself are willing to assume a risk does not compel the worker's current employer to do likewise. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002).
Schneider is the nation's largest truck company, employing 13,000 drivers. The more drivers a company employs, the greater the likelihood of the kind of accident that befell Kupsky and could befall Hoefner. Suppose Schneider had no policy against hiring drivers with neurocardiogenic syncope. Then some number of the 13,000 would have the condition. The EEOC presented no estimate of what that number would be, but syncope is common, "accounting for 3 percent of emergency room visits and 6 percent of hospital admissions." www.americanheart.org/ presenter.jhtml?identifier=4749. Suppose 2 percent of Schneider's drivers had it; that would be 260. The risk that at least one of them would have a Kupsky-type accident could not be thought wholly negligible, and the liability implications for Schneider (should there be an accident that killed or injured someone other than the driver, whose rights against Schneider would be limited to workers' compensation) could be calamitous. The victims' lawyers would wave the Kupsky accident in front of the jury, asking it to award punitive damages because the company had continued to employ drivers with neurocardiogenic syncope after having been warned by Kupsky's accident. The argument for punitive damages would be that employing Hoefner in the wake of Kupsky's accident showed that Schneider had acted in the face of a known risk and was therefore reckless. E.g., State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003); Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 674-75 (7th Cir.2003); Johnson v. Colt Industries Operating Corp., 797 F.2d 1530, 1533-34 (10th Cir.1986).
The argument might not succeed; the risk might be deemed insufficiently large to make Schneider reckless for not eliminating it by barring drivers who have neurocardiogenic syncope. But once burned, twice shy. Because of Kupsky's unfortunate accident, Schneider may be excessively risk averse, as United Air Lines and other airlines ( Sutton v. United Air Lines, Inc., 130 F.3d 893, 903-04 (10th Cir.1997), aff'd 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)) may be in refusing to hire pilots who do not have at least 20-100 uncorrected vision. 527 U.S. at 475-76, 119 S.Ct. 2139. But as there is no evidence that Schneider exaggerates the severity of Hoefner's condition and the risk he poses as a driver, there is no violation of the Americans with Disabilities Act. Cassimy v. 511 Board of Education, 461 F.3d *511 932, 937 (7th Cir.2006); Ogborn v. United Food & Commercial Workers Union, 305 F.3d 763, 767-68 (7th Cir.2002); Katz v. City Metal Co., 87 F.3d 26, 32-33 (1st Cir.1996).

The EEOC has confused risk with risk aversion. Two companies might each correctly believe that the risk of a particular type of accident was 1 in 10,000, yet one company, perhaps because it was small, financially fragile, owned by a trust, or as in this case had had an experience of the risk materializing, might be unwilling to assume the risk. That would be a decision irrelevant to liability under the Americans with Disabilities Act, even if that company's degree of risk aversion was "unique" in its industry. EEOC v. J.B. Hunt Transport, Inc., 321 F.3d 69, 76 (2d Cir. 2003).
But if this is wrong, the EEOC still must lose because there is no evidence that Schneider considers neurocardiogenic syncope to impair any "life activity" other than driving a truck for Schneider, and perhaps for some other truck companies (we do not know whether there are any) that like Schneider have safety standards higher than the minimum required by the federal government. That is too esoteric a capability to be judged a "major" life activity. If being able to drive a huge truck or a truck filled with hazardous chemicals safely, or being able to fly a plane or guide climbers to the summit of Mt. Everest, is a major life activity, then virtually the entire population of the United States is disabled, which would be a ridiculous construction to place on the Americans with Disabilities Act. "[E]ven assuming that working is a major life activity" as 0907 the EEOC believes, 29 C.F.R. § 1630.2(j)(3), but the Supreme Court doubts, Sutton v. United Air Lines, Inc., supra, 527 U.S. at 492, 119 S.Ct. 2139 0907 "a claimant would be required to show an inability to work in a `broad range of jobs,' rather than a specific job." Toyota Motor Mfg. Inc. v. Williams, 534 U.S. 184, 200, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); see also Sutton v. United Air Lines, Inc., supra, 527 U.S. at 491, 119 S.Ct. 2139; Kupstas v. City of Greenwood, 398 F.3d 609, 612-13 (7th Cir.2005). In a "regarded as" case, such as this, the claimant (here the EEOC on the claimant's behalf) would have to show that the employer believed that the claimant had a condition that would disable him from working in a broad range of jobs. Otherwise, minor physical defects would count as impairments of major life activities.
It is true that when it dismissed Hoefner, Schneider invited him to apply for "non-driving" jobs with the company. The Commission asks us to infer that Schneider thought Hoefner disabled from driving any type of truck for any type of trucking company; and the entire spectrum of truck driving might, we assume, be a "broad range of jobs." But the evidence is undisputed that no truck-driving jobs that were not subject to the federal safety standards were open at the time at Schneider. The qualification concerning the type of truck driving is essential. Schneider's president testified that there is a chronic shortage of "over the road" commercial truck drivers. Even if this is taken to imply that there were vacancies at Schneider for over-the-road drivers, such truck-driving jobs, being subject to the federal safety standards, were precisely the jobs for which drivers with neurocardiogenic syncope are ineligible under Schneider's risk-averse policy.
Schneider does have truck-driving jobs at construction sites, which are private property. But at argument Schneider's lawyer stated without contradiction that the trucks it uses at those sites are so heavy that the federal safety standards apply, for although the standards are applicable only to trucks driven on public roads there is no 512 way to get to or from a *512 construction site without using such roads. So the company's policy applies to those truck-driving jobs as well as to over-the-road trucking. Therefore the fact that Schneider suggested that Hoefner apply for nondriving jobs (at Schneider0907he could and did land an over-the-road job with another trucker, as we know) does not imply that Schneider considered him disabled by his medical condition from holding the kind of truck-driving job to which the federal standards do not apply. If (as we do not know) there were other truck-driving jobs at Schneider, which did not require that the driver comply with the federal safety standards, still, there were no openings for such jobs.
This is not to say that the absence of openings is, in and of itself, exoneration for Schneider. For what if there were no openings for Hoefner because Schneider believed that no one with neurocardiogenic syncope should be employed as a truck driver, period? Our point is only that given the absence of openings, a mistaken belief that Hoefner was disqualified from all driving jobs cannot be inferred from the fact that the company didn't offer him a driving job. The EEOC, which bore the burden of proof, did not try to clarify Schneider's offer of nondriving jobs by asking responsible officers of the company whether it would have offered Hoefner a driving job if it had had an opening for a driving job that didn't require that the driver satisfy federal safety standards. If the answer to the hypothetical question had been "yes," and there was no contrary evidence, Schneider would be home free even if it mistakenly believed that a person with neurocardiogenic syncope should not be permitted to drive big trucks or

trucks that carry passengers or hazardous chemicals. The case would be like Baulos v. Roadway Express Inc., 139 F.3d 1147, 1151-53 (7th Cir.1998), which held that a driver disabled by a sleep disorder only from driving trucks that involve "sleeper duty" was not disabled within the meaning of the Americans with Disabilities Act. That was not a broad range of jobs. See also EEOC v. J.B. Hunt Transport, Inc., supra, 321 F.3d at 74-77.
If the answer to the hypothetical question had been "no" 0907that is, if Schneider would not have employed Hoefner after he was diagnosed with neurocardiogenic syncope even in a truck-driving job that did not have to meet federal safety standards0907there would then have been some basis for thinking that Schneider had exaggerated Hoefner's condition and mistakenly thought him disabled from a broad range of jobs even though he was not. Even then, the EEOC would not have made its case, because Schneider's hypothetical admission would be consistent with the company's having decided to set a higher safety standard than law or custom requires, as United Air Lines had done. As we know from Sutton, that is a decision the Act does not touch.
AFFIRMED.
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On September 13, 2004, the Milwaukee office of the Equal Employment Opportunity Commission filed a lawsuit under Title VII and the Americans with Disabilities Act against Schneider National, Inc. in the U.S. District Court for the Eastern District of Wisconsin.  The EEOC alleged that the defendants, who operated a trucking company that ran routes between Green Bay and Racine, had unlawfully refused to allow the complainant, who was a truck driver, to continue driving for their company after he took medical leave for a seizure.  The EEOC alleged that this constituted unlawful discrimination on the basis of a disability under the ADA.

On January 20, 2006, the parties filed cross motions for summary judgment.  On May 31, 2006, the district court denied the EEOC's summary judgment request but granted the defendant's summary judgment request.  

On July 31, 2006, the EEOC appealed the district court's decision.  On March 21, 2007, the U.S. Court of Appeals for the Seventh Circuit affirmed the district court's decision, and on May 22, 2007 the Seventh Circuit denied the EEOC's request for a rehearing en banc.

