Jay WHITEHEAD, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee, 387 F. App'x 16

Present: GUIDO CALABRESI, ROSEMARY S. POOLER and DENNY CHIN, Circuit Judges.

SUMMARY ORDER Jay Whitehead appeals from the August 19, 2009, 2009 WL 2568554, decision and order of the United States District Court for the Northern District of New York (McAvoy, J.) granting

summary judgment to defendant United Parcel Service, Inc. and dismissing his complaint alleging violations of the Americans with Disabilities Act (“ADA”) and the New York Human Rights Law in its entirety. The main issue on review is whether the district court erred in finding Whitehead not disabled within the meaning of the ADA. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. UPS hired Whitehead to work as a mechanic at its Oneonta, New York facility.

UPS includes in its “essential job functions” for a UPS mechanic both the ability to meet federal Department of Transportation (“D.O.T.”) requirements and possession of a commercial driver’s license. Several days after Whitehead reported to work, UPS arranged for Whitehead to undergo a required physical examination, during which Whitehead truthfully answered a question asking whether he had epilepsy. Whitehead answered yes, and explained he took Dilantin to treat it. He has been seizure free for more than a decade.

The doctor completed the physical and passed Whitehead, apparently on the presumption that no interstate driving was required. Robin Fey, an occupational health manager at UPS, received Whitehead’s physical report for review. Fey called the doctor’s office, and said Whitehead should not have been cleared for work, because he would be driving vehicles across state lines and could not do so without a D.O.T. card. It is undisputed that Based on Fey’s call, the doctor changed his report and disqualified Whitehead from duty. UPS fired Whitehead that same day.

Whitehead alleges that he then asked to work as a package sorter for the company, a job that did not require a D.O.T. card. He alleges he raised the issue with multiple people at UPS, but nothing ever came of it.

To prevail on an ADA claim, a plaintiff must show (1) that defendant is covered by the ADA; (2) that plaintiff suffers from or is regarded as suffering from a disability within the meaning of the ADA; (8) that plaintiff was qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) that plaintiff suffered an adverse employment action because of his disability or perceived disability. Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir.2005). There is no dispute among the parties that UPS is covered by the ADA.

There is also no dispute between the parties that Whitehead does not claim to be actually disabled. Rather, he argues that UPS regarded him as having a disability that substantially limits him in the life activity of working. The ADA defines disability to include “being regarded” as having “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102.

Thus, a plaintiff “is regarded ‘as disabled’ within the meaning of the ADA if a covered entity mistakenly believes that the person’s actual, nonlimit-ing impairment substantially limits one or more major life activities.” Murphy v. United Parcel Service, Inc., 527 U.S. 516, 521-22, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999).

To fall within the “regarded as disabled” category, the covered entity needs to regard the plaintiff as unable to perform a class of jobs, not a single, specific job. 29 C.F.R. § 1630.2(j)(3)(i) (“The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”); Murphy, 527 U.S. at 523, 119 S.Ct. 2133 (“to be regarded as substantially limited in the major life activity of working, one must be regarded as precluded from more than a particular job”). It is undisputed that people with epilepsy cannot receive a D.O.T. medical card.

Whitehead himself testified that he is able to work as a mechanic in a job that does not require mechanics to possess a D.O.T. medical card. The issue of whether a D.O.T. medical card is essential to the job of a UPS mechanic is not relevant at this stage of the analysis. This case is virtually indistinguishable from Murphy. The petitioner in Murphy was hired as a mechanic by UPS, just as Whitehead was. 527 U.S. at 519, 119 S.Ct. 2133. Like Whitehead, Murphy was required to obtain a D.O.T. medical card.

And like Whitehead, Murphy had a medical condition — high blood pressure, controlled by medication — which precluded him from qualifying for a D.O.T. medical card. Id. Murphy argued that evidence that he was “regarded as unable to obtain D.O.T. certification” was sufficient to create a genuine issue of fact “as to whether petitioner is regarded as substantially limited in one or more major life activities.” Id. at 523, 119 S.Ct. 2133.

The Supreme Court rejected the argument, holding that “[a]t most, petitioner has shown that he is regarded as unable to perform the job of mechanic only when that job requires driving a commercial motor vehicle-a specific type of vehicle used on a highway in interstate commerce.” Id. at 524, 119 S.Ct. 2133. Here, as was the case in Murphy, it is undisputed that Whitehead is “generally employable as a mechanic.” Hence, he was not regarded as having a disability within the meaning of the ADA. Moreover, there is no record evidence that Whitehead actually applied for, and was rejected from, the package sorter job.

The record evidence only indicates that his supervisor directed his inquiries up the management chain, and Whitehead did not pursue them. Whitehead spends the bulk of his briefing trying to establish that the requirement that he possess a D.O.T. medical card is discriminatory because driving trucks in interstate commerce is not an essential function of the job. Regardless of the merits of his arguments, we do not reach the issue of what the essential functions of the job are absent a finding that Whitehead is disabled within the meaning of the ADA.

Accordingly, the judgment of the district court hereby is AFFIRMED. . Because Whitehead expressly argued that the ADA Amendments Act of 2008 does not apply to the issues in this appeal, we do not consider it.