UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                      ______________________
                              
No. 03-4751
                                   ______________________
                              
ALVIN EMORY,

     Plaintiff-Appellant,

v.

ASTRAZENECA PHARMACEUTICALS, L.P.,

     Defendant-Appellee.
                                
     _____________________________________________________
                                
  On Appeal from an Order of the United States District Court
  for the District of Delaware, Civil Action No. 02-1466 (JJF)
     _____________________________________________________
                                
                 BRIEF OF U.S. EQUAL EMPLOYMENT
            OPPORTUNITY COMMISSION AS AMICUS CURIAE
              IN SUPPORT OF APPELLANT ALVIN EMORY
     _____________________________________________________


     ERIC S. DREIBAND                   
     General Counsel                    

     CAROLYN L. WHEELER            
     Acting Associate General Counsel        
                                   
     LORRAINE C. DAVIS             EQUAL EMPLOYMENT   
     Assistant General Counsel        OPPORTUNITY COMMISSION
                                   1801 L Street, N.W.
     SUSAN R. OXFORD               Washington, D.C.   20507
     Attorney                      (202) 663-4791 
                                                            
                              
                       TABLE OF CONTENTS
                                                           

STATEMENT OF INTEREST . . . . . .        1

STATEMENT OF THE ISSUES . . . . .   2

STATEMENT OF THE CASE . . . . . .        3
                                   
     A.  Background . . . . . . . . . . . . .      3

     B.  District Court Decision . . . .      7

SUMMARY OF ARGUMENT . . . . . .     8

ARGUMENT . . . . . .        9

     A.  Emory Is Substantially Limited in Performing Manual Tasks . .     11

     B.  Emory Is Substantially Limited in Learning   .       18

     C.  Emory Has a Record of a Substantial Limitation in 
          Walking, Performing Manual Tasks and Learning . . . . . . . . .  27

CONCLUSION . . . . . 29

CERTIFICATION OF ADMISSION TO THE BAR . . . .    30

CERTIFICATION OF COMPLIANCE    31

CERTIFICATE OF SERVICE


                      TABLE OF AUTHORITIES
                                                            page
CASES

Albertson's Inc. v. Kirkingburg, 527 U.S. 555 (1999)     10
                    
Amir v. St. Louis Univ., 184 F.3d 1017 (8th Cir. 1999) . . . . . . . . . . . . .     20
                                             
Betts v. Univ. of Va., 191 F.3d 447 (Table), 
     1999 WL 739415 (4th Cir. 1999) (unpub.) .      20, 24
     
Bowen v. Income Producing Mgmt. of Okla., Inc., 
     202 F.3d 1282 (10th Cir. 2000) . . . . . . . . . . . . .         19, 23
                                 
Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . .    16

Buskirk v. Apollo Metals, 116 F. Supp. 2d 591 (E.D. Pa. 2000) . . . . . .   8

Calef v. Gillette Co., 322 F.3d 75 (1st Cir. 2003) . . . .    19

Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7th Cir. 1998) . . . . .   20, 22, 28

Farrington v. Bath Iron Works Corp., No. 01-274, 
     2003 WL 278172 (D. Me. 2003) . . . . . . . . . . .          20, 23

Fenney v. Dakota, Minnesota & Eastern R.R. Co., 
     327 F.3d 707 (8th Cir. 2003) .  13, 14, 18

Gagliardo v. Connaught Labs., Inc., 
     311 F.3d 565 (3d Cir. 2002)          18, 20

Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002) . .    16, 17, 26

Gonzales v. Nat'l Bd. of Med. Exam'rs, 
     225 F.3d 620 (6th Cir. 2000)          20, 24

Hileman v. City of Dallas, 115 F.3d 352 (5th Cir. 1997) . . . . . . . . . . .        20

Hopkins v. St. Joseph's Creative Beginning, No. 02-6791, 
     2003 WL 22795302 (E.D. Pa. Nov. 7, 2003) .          20

Luttrell v. Certified Grocers Midwest, Inc., No. 02-8881, 
     2003 WL 22844239 (N.D. Ill. Dec. 1, 2003) .         15

Matthews v. Nat'l Collegiate Athletic Assoc., 
     179 F. Supp. 2d 1209 (E.D. Wash. 2001) . . . . 23

Ordahl v. Forward Tech. Indus., Inc., 
     301 F. Supp. 2d 1022 (D. Minn. 2004) . . . . . .    15, 16

Rothberg v. Law Sch. Admission Council, Inc., 
     300 F. Supp. 2d 1093 (D. Colo. 2004) . . . . . .         20, 22

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999) . . . . . .   passim

Toyota Motor Mfg., Kentucky, Inc. v. Williams, 
     534 U.S. 184 (2002) . . . . . .   passim

Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002) . .    20, 22, 26

Walsted v. Woodbury County, 
     113 F. Supp. 2d 1318 (N.D. Iowa 2000) . . . .       20



                                                            page
STATUTES

42 U.S.C.  12101 et seq. . . . . . .  1

42 U.S.C.  12102(2)(A), (B) . . .        8, 9, 19

42 U.S.C.  12112(a) . . . . . . . . . . .   9


REGULATIONS

29 C.F.R.  1630.1(h)(1) . . . . . . . .    11

29 C.F.R.  1630.2(h)  . . . . . . . . . .  
     19

29 C.F.R.  1630.2(j)(1)(2002) . . .   10

29 C.F.R.  1630.2(j)(2)(i)-(iii) . . 10, 11


RULES

F.R.A.P. 29(a) . .    2


MISCELLANEOUS

http://www.ninds.nih.gov/health_and_
     medical/pubs/cerebral_palsyhtr.htm (3/31/04)        4, 11

                     STATEMENT OF INTEREST

     The U.S. Equal Employment Opportunity Commission ("EEOC" or
"Commission") is the agency established by Congress to administer, interpret and
enforce the Americans with Disabilities Act, 42 U.S.C.  12101 et seq. ("ADA"), as
amended, and other federal anti-discrimination statutes.  Plaintiff Alvin Emory is an
individual with cerebral palsy and learning disabilities who brought suit in federal court
against his employer, AstraZeneca Pharmaceuticals, alleging claims under the ADA. 
The district court granted AstraZeneca's motion for summary judgment on the ground
that Emory had not demonstrated that he suffers from an impairment that substantially
limits his performance of any major life activity, as required for Emory to establish
coverage under the ADA for his failure-to-promote and denial-of-accommodation
claims.
     This appeal presents the question of whether the district court improperly applied
the standard set forth by the Supreme Court in Toyota Motor Mfg., Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002), and thereby raised the bar for ADA coverage higher
than Congress intended.  In concluding that Emory's impairments do not substantially
limit any major life activity, the district court erroneously failed to recognize the many
everyday tasks Emory is not able to do because of his impairments, as well as the
significant restrictions as to the condition, manner or duration under which Emory
performs many of the activities he is able to undertake.  For the reasons discussed
below, EEOC believes that the evidence in the record establishes a genuine issue of
material fact as to whether Emory, who was born with cerebral palsy and partial
paralysis of his right arm, hand and leg, and who has had significant learning difficulties
since childhood, has an ADA-covered disability.  To assist the Court in resolving the
important issues raised by this appeal, EEOC, pursuant to F.R.A.P. 29(a), offers its
views to the Court as amicus curiae.    
                    STATEMENT OF THE ISSUES
1.  Whether the district court erred in granting summary judgment to defendant-appellee
AstraZeneca Pharmaceutical, LP, because plaintiff-appellant Alvin Emory established
disputed issues of material fact with respect to his claim that he is substantially limited
in the major life activities of performing manual tasks and learning.
2.  Whether the district court erred in granting summary judgment to AstraZeneca
because Emory established disputed issues of material fact with respect to his claim
that he has a record of a substantial limitation in the major life activities of performing
manual tasks, learning and walking. 
                     STATEMENT OF THE CASE
A.  Background
     Alvin (Rob) Emory filed suit against his employer, AstraZeneca Pharmaceutical,
LP, in September 2002 alleging he was deprived of promotional opportunities because
of his disabilities and was denied reasonable accommodations that would have enabled
him to perform his job and to compete for available promotions on an equal basis.
     Emory was born in 1956 with cerebral palsy and partial paralysis of his right
arm, hand and leg.  His right arm, hand and leg are also partially deformed.  Emory v.
AstraZeneca Pharmaceuticals, Civ. No. 02-1466, 2003 WL 22953185, at *1 (D. Del.
Dec. 3, 2003).  Emory has difficulty "manipulating objects, gripping, reaching
overhead, walking, or carrying objects for long periods of time."  Id.  Emory also has
very elementary reading and computational skills as a result of a life-long learning
impairment.  He graduated from high school, but attended special education classes
throughout.  Id.  When he was 15 years old, his word recognition and math skills were
at the second-grade level and his spelling skills were at the third-grade level.  Joint
Appendix ("JA") at 1024.  An I.Q. test administered in 1994 (at age 37) showed an
overall I.Q. of 86 (placing Emory in the bottom 18th percentile of the general
population), but a reading ability still at approximately a third-grade level (in the lower
portion of the bottom 1st percentile for the general population).  JA873-JA874.  An I.Q.
test administered in 2003 (at age 47) continued to show, among other things, "basic
reading skills . . . on the elementary level."  JA878. 
     Emory is married, has two children, and at various times has volunteered in the
community as a firefighter, a family mediator and a clown with the Shriners
organization.  He also owns his own cleaning business.  Emory v. AstraZeneca, 2003
WL 22953185, at *1, *4.  Emory's impairments, however, leave him unable to perform
many activities connected with these responsibilities.  For example, when his children
were young, Emory was physically unable to prepare baby formula, change diapers, or
carry his children up a flight of stairs.  JA64b, JA75-JA76.  When his children attended
school, he was unable to assist them with their homework because of his learning
disabilities.  JA322.  Although he was trained as a volunteer firefighter, JA156-JA184,
he had difficulty handling a fire hose and putting on an air tank (JA164, JA181-JA182),
and he could not lift a gurney, pull someone out of a building and carry them down a
ladder, or drive any stick shift vehicles including the pump and rescue truck.  JA64b,
JA162.  He explained his limitations to the Fire Chiefs and restricted his involvement
to backing up other firefighters.  E.g., JA157-JA158, JA175-JA178.  To become a
Family Mediator, he received all of his training verbally because his reading skills are
so limited, and he only co-mediates disputes.  JA190-JA193.  When he entertains
nursing home residents and sick children with his clown act, Emory is unable to tie
balloons as the other Shriner clowns do.  Notably, Emory has incorporated his mobility
difficulties into his clown routine, going by the name of "Stumbles the Clown."  JA64b,
JA76, JA186-JA188.  In his cleaning business, Emory is able to bid for jobs and
purchase the business's supplies, but he has to employ individuals to assist him in
various operational aspects of his cleaning business, such as payroll, because he lacks
the basic academic skills to perform those functions.  JA215-JA217.
     Emory has worked at AstraZeneca and its predecessors for over twenty-seven
years and has consistently received positive performance evaluations.  E.g., JA677-
JA706.  Although he has worked mostly as a Maintenance Custodian in the Site
Engineering and Maintenance Department, he has also held a variety of other positions
including Detail Foreman, "a position with administrative and managerial
responsibilities."  Emory v. AstraZeneca, 2003 WL 22953185, at *1.  To improve his
job skills, he obtained computer training through Easter Seals' training programs for
persons with disabilities.  JA69, JA345-JA346.  
     The Easter Seals instructor explained that her job was to provide individualized
computer instruction to persons with disabilities, and she provided instruction to Emory
in that capacity.  JA332-JA338.  She determined early on that Emory "needs to have
visual aids in order to complete a task," and she designed her instruction accordingly. 
JA339, JA348-JA349, JA713.  The instructor further explained that when employed
adults (like Emory) came to Easter Seals for computer training, it was generally
because they could not function in a classroom setting because the instruction "went
too fast."  JA374.  
     In July 2001 Emory applied for the newly-created position at AstraZeneca of
Second Shift Services Coordinator ("SSSC").  He and two other candidates were
interviewed for the job.  One of the other two candidates, another AstraZeneca
employee, was selected for the position.  Emory contends that the company failed to
promote him into the position because of his disability.  Emory v. AstraZeneca,
2003 WL 22953185, at *1.
     Emory asserted in his complaint that he is substantially limited in one or more
major life activities including learning, writing, reading, lifting and performing manual
tasks.  JA28.  In response to defendant's summary judgment motion, Emory argued that
his impairments substantially limit him in the major life activities of walking,
performing manual tasks and learning, and that he also has a record of an ADA
disability based on documentation showing that these limitations extend back into his
childhood.  See 2003 WL 22953185, at *4-*5; Pl's SJ Opp.Brf. at 24-29.
B.  District Court Decision
     The district court granted AstraZeneca's motion for summary judgment.  The
court agreed that Emory is physically and mentally impaired by cerebral palsy, but
concluded that this does not substantially limit Emory in the "condition, manner or
duration under which [he] can perform" the three major life activities he cited: 
performing manual tasks, walking and learning.  2003 WL 22953185, at *3-*4 (citing
Toyota, 534 U.S. at 197, 200-01).  The court stated:
     Although Mr. Emory has some limitations in his ability to grip, carry and
     manipulate objects and needs assistance in accomplishing some household
     chores, child care duties, and activities involving his right side, his
     limitations are not substantial or severe. . . . Mr. Emory may possess a
     slight limp, but he is not substantially limited in his ability to walk.  Thus,
     while Mr. Emory may accomplish some of his daily activities in an
     unconventional manner as a result of his impairments, he is not
     substantially limited in his ability to perform those activities. [Id. at *4]

     With respect to Emory's contention that he is also substantially limited in the
major life activity of learning, the court stated: "Mr. Emory may be limited in his
literary and computational skills, but the Court cannot conclude that those limitations
are substantial."  Id.  Finally, concluding that Emory's "record of" claim relied on the
same limitations Emory asserted for his claim of actual disability, the court ruled that
Emory's evidence also did not establish a record of disability.  Id. at *5 (citing Buskirk
v. Apollo Metals, 116 F. Supp. 2d 591, 600 (E.D. Pa. 2000) ("[I]f an impairment does
not substantially limit a major life activity, a history of those same impairments cannot
constitute a record of impairment.")).
                      SUMMARY OF ARGUMENT
     An employee asserting disability-based workplace discrimination in violation of
the ADA must demonstrate that he or she is an "individual with a disability."  The
ADA defines "disability," in pertinent part, as "a physical or mental impairment that
substantially limits one or more . . . major life activities" or "a record of such an
impairment."  42 U.S.C.  12102(2)(A), (B) (emphasis added).  Emory's evidence
satisfies both of these definitional prongs.  AstraZeneca concedes, and the district court
found below, that Emory has physical and mental impairments arising out of the fact
that he was born with cerebral palsy and partially deformed limbs.  Emory presented
sufficient evidence below to raise a genuine issue of material fact that these
impairments substantially limit him in performing a variety of manual tasks that are of
central importance to the average person's daily life.  Likewise, Emory presented
sufficient evidence that he is essentially unable to engage in the most common means
of learning: reading written materials and listening to oral instruction.  The fact that
Emory has been able to work as a custodian, marry and raise two children with his
wife, and volunteer in the community in no way undermines the substantial number of
"manual tasks" and activities involving "learning" that Emory is either unable to
perform entirely, or can only perform with assistance or with significant difficulty. 
Finally, Emory asserted, and the summary judgment record amply documents, that
Emory's limitations in performing manual tasks and learning extend back to early
childhood, and that his present difficulties with walking were much more severe in
infancy and childhood.  Thus, there is adequate evidence from which a reasonable jury
could find that Emory is a covered individual under both the "actual disability" and
"record of" provisions of the ADA.
                            ARGUMENT
     The ADA prohibits an employer from discriminating against a "qualified
individual with a disability" because of that individual's disability.  42 U.S.C. 
 12112(a).  The ADA defines "disability," in pertinent part, as "a physical or mental
impairment that substantially limits one or more of [an individual's] major life
activities" or "a record of such an impairment."  42 U.S.C.  12102(2)(A), (B). 
Applying EEOC's regulations, this Court has noted that an impairment "substantially
limits" an activity if, because of the impairment, an individual is "[u]nable to perform
a major life activity that the average person in the general population can perform" or
is "[s]ignificantly restricted as to the condition, manner or duration under which [the]
individual can perform a particular major life activity as compared to the condition,
manner, or duration under which the average person in the general population can
perform that same major life activity."  Taylor v. Phoenixville Sch. Dist., 184 F.3d 296,
307 (3d Cir. 1999) (quoting 29 C.F.R.  1630.2(j)(1)).  Relevant factors in determining
whether an individual is substantially limited in a major life activity (or has a record of
such a limitation) are (1) the nature and severity of the impairment, (2) its duration or
anticipated duration, and (3) the impairment's long-term impact.  Taylor v. Phoenixville
Sch. Dist., supra (quoting 29 C.F.R.  1630.2(j)(2)(i)-(iii)).  Courts must also consider
an individual's capacity to compensate for his or her disability through mitigating
measures.  See Albertson's Inc. v. Kirkingburg, 527 U.S. 555, 565-67 (1999).
     At summary judgment, Emory argued that his permanent, life-long conditions of
cerebral palsy, partial right-side paralysis, partially deformed right arm and hand, and
intellectual impairments substantially limit him in the major life activities of walking,
performing manual tasks and learning, and that he has a record of a substantial
limitation in those same activities.  The district court agreed that walking, performing
manual tasks and learning are major life activities.  2003 WL 22953185, at *3; see also
29 C.F.R.  1630.1(h)(1).  The district court erred, however, in concluding that Emory
is not, and has not in the past been, substantially limited in performing these activities.
A.  Emory Is Substantially Limited in Performing Manual Tasks
     Employees claiming they are substantially limited in performing manual tasks
must demonstrate, "in terms of their own experience," that they have a "permanent or
long term" impairment that "prevents or severely restricts [them] from doing [manual]
activities that are of central importance to most people's daily lives."  Toyota, 534 U.S.
at 198 (citing 29 C.F.R.  1630.2(j)(2)(ii)-(iii); other citations omitted).  Such an
individualized assessment is "particularly necessary when the impairment is one whose
symptoms vary widely from person to person," 534 U.S. at 199, as is the case with
Emory's cerebral palsy and partial paralysis.  
     Emory's summary judgment evidence demonstrates his inability to perform a
number of manual tasks that are undeniably of central importance to most people's
daily lives, including manual tasks involved in dressing, maintaining personal hygiene,
and preparing and eating meals.  Emory's lack of strength, grip and dexterity in his
right hand means he cannot perform any activities that require the ability to grasp and
hold with both hands.  With respect to getting dressed, Emory cannot pull up his pants
zipper if the pants fabric is not sufficiently stiff because, although he can pull the zipper
up with his left hand, he cannot grasp the bottom of the zipper with his right hand to
anchor it if the material is too lightweight.  He cannot tie his shoes tightly, roll up his
shirt sleeves or tie a necktie because he lacks the two-handed dexterity and grip these
activities require.  For the same reason, he has difficulty   tucking in his shirt and is
sometimes unable to fasten the buttons and snaps in his pants and shirts.  He cannot put
a belt through the beltloops in his pants because he cannot twist his left arm around to
the right side of his body.  JA64a, JA75.  These are all manual tasks the average person
can do with little or no difficulty.  
     With respect to personal hygiene, when brushing his teeth Emory can twist the
top off a tube of toothpaste only by gripping the cap with his teeth and turning the tube
with his left hand; someone else must put the cap back on for him.  JA75.  He cannot
trim his own fingernails or toe nails.  JA76.  With respect to preparing and eating
meals, Emory cannot twist the lid off a jar (JA64b) or open a can with a manual can-
opener.  JA76.  He cannot cut his own meat with a knife and fork (JA76), and he
cannot place an item into or lift an item out of the oven unless it can be held and
balanced with one hand.  JA64b.  
     Emory's substantial limitations in performing manual tasks also impact his ability
to perform other kinds of ordinary household activities that are central to most person's
lives.  For example, he cannot perform routine car or household maintenance - like
change a car tire or car battery, start a gas-powered weed wacker, use any kind of
power tools, move furniture, or use a "snake" to clear a drain - because these manual
tasks all involve gripping, maneuvering, lifting or pulling with two hands at the same
time.  For the same reason, he is unable to perform simple assembly of toys, furniture
and other household items often associated with maintaining a home and raising
children, in contrast to most persons who have full use of both hands and arms.  JA64a-
JA64b, JA75-JA76.   
     The weakness and partial paralysis in his right arm prevent Emory from
performing any manual task that involves raising his arms above his shoulder, such as
changing an overhead light bulb (JA65) or painting his home.  JA64b, JA76.  For the
same reason, he would be unable to place or remove an item from a top shelf in a
cabinet or closet if the item needs to be held with two arms, because he is unable to
raise his right arm above shoulder height.  This impairment also limits his ability to
carry items for any length of time, because he only has strength in his left arm.  JA64b. 
When his children were small, he was not able to carry them up or down a flight of
stairs.  JA75. 
     Courts have properly found similar evidence of the limiting effects of an
impairment sufficient to defeat summary judgment in an ADA claim.  See, e.g., Fenney
v. Dakota, Minn. & Eastern R.R. Co., 327 F.3d 707, 713-16 (8th Cir. 2003) (reversing
summary judgment for defendant because plaintiff's missing right thumb and half of
middle finger and damaged right arm made it difficult to grasp things and,
consequently, plaintiff took twice as long as average person to care for himself);
Luttrell v. Certified Grocers Midwest, Inc., No. 02-8881, 2003 WL 22844239 (N.D.
Ill. Dec. 1, 2003) (denying defendant's motion for summary judgment because evidence
that plaintiff with cerebral palsy and physically deformed left hand could not hold a
knife or fork in his left hand or button his clothes without assistance and took three
times as long to dress himself established material issues of fact concerning whether
plaintiff was substantially limited in ability to care for self).  The district court in this
case, however, mistakenly focused entirely on what Emory is able to do and gave short
shrift to Emory's evidence of the numerous, everyday tasks he cannot perform as a
result of his physical impairments.  2003 WL 22953185, at *4.  As one district court
recently observed in rejecting a similar argument by an employer, a defendant's
evidence of what an ADA plaintiff can do does not necessarily contradict the plaintiff's
statements concerning the difficulty with which he carries out his major life activities. 
Ordahl v. Forward Tech. Indus., Inc., 301 F. Supp. 2d 1022, 1028-29 (D. Minn. 2004). 
Similar to this case, the defendant in Ordahl offered evidence that the plaintiff "has
maintained a full-time job for many years, has friends and a family, and leads what is,
in many ways, a 'normal' life."  Id. at 1028.  Rejecting this evidence as dispositive on
the question of "substantial limitation," the court in Ordahl noted that "[t]he ADA does
not require that a plaintiff demonstrate total inability to perform daily activities in order
to be considered disabled."  Id.  The court found sufficient Ordahl's deposition
testimony and affidavit which stated, among other things, that "the activities of
dressing, bathing and carrying plates and glasses are substantially more difficult [for
Ordahl] with his amputated hand/prosthesis than those activities were prior to the
amputation."  Id.
     As the First Circuit explained in Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d
11 (1st Cir. 2002), a plaintiff with significant limiting impairments can be covered under
the ADA "even if the limitations are not insurmountable" because, as this Court has
also noted, the "ADA 'addresses substantial limitations on major life activities, not
utter inabilities.'"  Id. at 22 (quoting Bragdon v. Abbott, 524 U.S. 624, 641 (1998));
see also Taylor v. Phoenixville Sch. Dist., 184 F.3d at 309.  The First Circuit further
noted in Gillen:
     The focus [of the ADA] is not on whether the individual has the courage
     to participate in the major life activity despite [his or] her impairment, but,
     rather, on whether [he or] she faces significant obstacles when [he or] she
     does.  The EEOC's emphasis on "condition, manner, or duration" in
     contrasting how a disabled person performs an activity and how a member
     of the general public performs that same activity dovetails with this
     formulation.  [Id.]

     The Gillen decision is particularly apposite.  There, the First Circuit reversed a
district court's entry of summary judgment against a genetic amputee who was born
with only one completely functioning arm and only one hand (her left arm ends a few
inches below the elbow).  Gillen alleged that she was substantially limited in lifting,
even though she was able to lift up to ninety pounds to "knuckle height" with her one
functioning arm.  Id. at 19.  In finding ADA coverage, the First Circuit concluded: 
     A missing hand is a more profound impairment than a simple inability to
     lift objects over a certain weight.  Such an impairment poses a type of
     restriction on lifting not shared by a significant portion of the populace. 
     While most people can use two hands to pick up a plate or carry groceries
     (or even do both at the same time), a one-handed individual must develop
     an array of techniques to overcome her innate limitation.  Even if she is
     able to lift more poundage than many two-handed individuals, the manner
     in which she lifts and the conditions under which she can lift will be
     significantly restricted because she only has one available limb.  In this
     sense, at least, the [plaintiff's] lack of a hand will substantially limit her
     ability to lift notwithstanding her extraordinary efforts to compensate for
     her impairment. [283 F.3d at 23 (emphasis added)]

     In a similar manner, plaintiff's lack of strength in his right hand and arm, and his
inability to grasp and hold with his right hand, create a significant difference in the
manner and conditions under which Emory is able to perform a wide variety of manual
tasks.  Some tasks he can still accomplish -- but only in a significantly different manner
-- such as unscrewing the cap from a tube of toothpaste by holding the cap with his
teeth (JA75), or driving an automatic car by reaching across with his left hand to start
the engine and put the car into gear (even though the ignition and gear shift are both
located on the right side of the steering wheel).  JA64b.  Other tasks he cannot perform
at all, such as any task that requires him to manipulate, grasp, twist or pull with two
hands simultaneously.  JA64a-JA64b, JA75-JA76.  Emory's considerable evidence of
his limitations in performing manual tasks is more than adequate to withstand summary
judgment on this issue.  See Taylor v. Phoenixville Sch. Dist., 184 F.3d at 309
(reversing summary judgment because plaintiff's evidence of a serious, on-going
condition sufficed to require trial on whether plaintiff was "substantially limited").
B.  Emory Is Substantially Limited in Learning
     To obtain coverage under the ADA, Emory need only establish that his
impairment substantially limits a single major life activity.  See Fenney, 327 F.3d at 713
n.9 (declining to address whether plaintiff was substantially limited in manual tasks, in
part because court found plaintiff substantially limited in caring for self); cf. Gagliardo
v. Connaught Labs., Inc., 311 F.3d 565, 570 (3d Cir. 2002) (declining to address
plaintiff's theory that her employer regarded her as disabled where evidence supported
jury's verdict that she was actually disabled);  Taylor v. Phoenixville Sch. Dist., 184
F.3d at 306 (declining to address whether plaintiff had a record of, or was regarded as
having, a substantially-limiting impairment because evidence demonstrated a presently-
limiting impairment).  Thus, the evidence Emory presented below that he is
substantially limited in performing manual tasks establishes his coverage under the
ADA.  Nevertheless, Emory's evidence that his lifelong learning impairment
substantially limits him in the major life activity of learning provides an additional basis
for reversing the district court's grant of summary judgment.  
     As noted above, an individual is "disabled" under the ADA if he has "a physical
or mental impairment" that substantially limits one or more major life activities.  42
U.S.C.  12102(2)(A) (emphasis added).  EEOC's regulations define mental
impairment, in relevant part, as "any mental or psychological disorder such as mental
retardation . . . or specific learning disabilities."  29 C.F.R.  1630.2(h).  The district
court properly recognized "learning" as a major life activity under the ADA.  See, e.g.,
Calef v. Gillette Co., 322 F.3d 75, 91 n.12 (1st Cir. 2003) (learning is unquestionably
a major life activity of central importance to most people's daily lives) (Bownes, J.,
concurring in part and dissenting on other grounds); Bowen v. Income Producing
Mgmt. of Okla., Inc., 202 F.3d 1282, 1287 (10th Cir. 2000) (recognizing learning as a
major life activity); Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999)
(same); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 508-09 (7th Cir. 1998)
(same); Betts v. Univ. of Va., 191 F.3d 447 (Table), 1999 WL 739415 (4th Cir. 1999)
(unpub.) (same); Hopkins v. St. Joseph's Creative Beginning, No. 02-6791, 2003 WL
22795302 (E.D. Pa. Nov. 7, 2003) (same); cf. Vinson v. Thomas, 288 F.3d 1145,
1152-53 (9th Cir. 2002) ("learning" is a major life activity under the Rehabilitation Act);
Gagliardo v. Connaught Labs., Inc., 311 F.3d at 569 ("concentrating" and
"remembering" are major life activities under ADA); Taylor v. Phoenixville Sch. Dist.,
184 F.3d at 307 ("thinking" is a major life activity under ADA).  The district court
erred, however, in concluding that Emory is not substantially limited in learning.

     Emory presented evidence below that, despite completing high school, his IQ
falls in the borderline range of intellectual functioning and he reads at only a third-grade
level.  JA873-JA874, JA878.  As a result, his ability to learn through written instruction
is extremely limited.  His ability to learn when information is presented only orally is
also very limited, however.  One expert who reviewed Emory's test results noted: "Mr.
Emory will always have a noticeable degree of difficulty dealing with information
which requires verbal mediation and/or verbal processing . . . [which] will probably
affect all conditions and circumstances where some form of new learning is part of the
task at hand."  JA870.  
     Among other difficulties, Emory's neurological condition leaves him unable to
listen to oral instruction and take notes at the same time.  JA64b.  In fact, Emory's
summary judgment evidence demonstrates that he is able to learn only when
information is presented orally and reinforced with visual illustration or demonstration. 
JA64b, JA339, JA348-JA349.  Emory's very limited academic skills also impact his
ability to demonstrate what he knows.  When Emory took a written employment test
that AstraZeneca administered for a job Emory sought, the test examiner had Emory
repeat the test orally because the examiner could see that Emory was not able to
express himself in writing.  JA1074.  Emory's summary judgment evidence includes
a number of diagnostic tests taken in 1994 and 2003 that compare Emory's academic
skills in reading, mathematics and learning to that of the general population.  JA872-
JA879.  These tests are intended to be administered in writing, but at least one of them
had to be administered to Emory orally because of his limited reading abilities.  JA874. 
The test results demonstrate that Emory's ability to learn is substantially limited as
compared to the general population, revealing very limited basic literacy skills (falling
in the bottom 1% in one reading test), poor calculation and computational abilities,
difficulty recognizing multi-syllable words out of context, very poor spelling, and a
deficient learning curve.  JA874-JA879. 
     A number of courts have concluded that an ADA plaintiff established a
substantial limitation in learning where the plaintiff presented evidence, similar to that
presented by Emory in this case, of an inability to read or process information in the
same condition, manner or duration under which the average person can read or process
information.  See, e.g., Davidson v. Midelfort Clinic, 133 F.3d at 510 (plaintiff's
description of her learning-related limitations and her means of compensating for them
were specific enough to "reasonably infer that her burdens were distinct from that of
the average student"); Vinson v. Thomas, 288 F.3d at 1152-53 (substantial limitation
established by testimony of plaintiff's expert and plaintiff's personal description of how
his dyslexia impacted his ability to learn); Rothberg v. Law Sch. Admission Council,
Inc., 300 F. Supp. 2d 1093 (D. Colo. 2004) (plaintiff with average reading
comprehension nevertheless substantially limited in learning and reading because her
mental impairment caused a significantly slower rate of processing information);
Matthews v. Nat'l Collegiate Athletic Assoc., 179 F. Supp. 2d 1209, 1215-16, 1224
(E.D. Wash. 2001) (plaintiff substantially limited in learning where, among other
things, his reading test scores fell within the bottom 6th to 10th percentile, his full scale
IQ ranked in the bottom 13th percentile, and expert witness indicated he had "clear
deficits in basic reading skills"); Farrington v. Bath Iron Works Corp., No. 01-274,
2003 WL 278172 (D. Me. Feb. 7, 2003) (plaintiff substantially limited in learning
where test results placed plaintiff below the bottom 1 percentile for broad written
language skills and in the bottom 5th to 10th percentiles for reading) (magistrate judge's
recommendation to deny defendant's motion for summary judgment; adopted by district
court on 3/3/03).
     Emory's limited intellectual abilities make his case very different from those in
which courts have rejected an ADA plaintiff's claim of a substantial limitation in
learning.  Courts that have found no substantial limitation have generally done so
because the individual was able to perform intellectual functions at or above that of the
average person in the general population, notwithstanding his or her impairment.  In
Bowen v. Income Producing Mgmt. of Okla., Inc., for instance, the Tenth Circuit
declined to reverse the jury's rejection of plaintiff's ADA claim, where the plaintiff had
alleged he was substantially limited in learning because he suffered from memory loss,
inability to concentrate and difficulty doing simple math following a gunshot wound to
his head.  The court declined to upset the jury's verdict for the employer because the
evidence showed that even after his injury, the plaintiff "retained greater skills and
abilities than the average person."  202 F.3d at 1287-88.  See also Betts v. Univ. of
Va., supra (rejecting claim of actual disability because plaintiff was a college graduate
with a history of academic achievement and his learning abilities were comparable to
that of the general population); cf. Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d
620, 627-30 (6th Cir. 2000) (plaintiff not substantially limited in reading because even
with his alleged learning disabilities he scored in the average to superior range in
cognitive processes and reading achievement). 
     The record shows that Emory, on the other hand, is substantially limited in his
ability to learn through two of the most common means of learning: reading written
materials and listening to oral instruction.  Indeed, although Emory has been able, over
the years, to learn his job and perform it satisfactorily, see JA677-JA706, he has not
developed any means of compensating for his cognitive limitations such that he could
learn and perform intellectual functions on a par with the average person in the general
population.  In concluding that, although Emory "may be limited in his literary and
computational skills," these limitations, like his physical limitations, "are not substantial
or severe," 2003 WL 22953185, at *4, the district court mistakenly focused on the fact
that Emory has updated his computer skills through occupational training and has
trained to become a community mediator and volunteer fireman.  2003 WL 22953185,
at *4.  That Emory undertook such training over the years demonstrates his personal
commitment to self-improvement and community service, JA191, but it does not alter
the fact that he has significant deficits in his ability to learn through reading or verbal
instruction.    
     Moreover, the district court failed to recognize that Emory's methods of training
for these accomplishments was very different from the methods of learning in which
Emory is impaired.  Emory's described his training to become a community mediator
as an initial weekend of "hands on" "verbal training" after which Emory co-mediated
with another trained mediator.  See JA192-JA193.  Emory described his training to
become a volunteer firefighter as another very "hands on," practical overview of
firefighting equipment and firefighting techniques.  See, e.g., JA156-JA158, JA176-
JA178.  This practical approach to learning concrete skills is very different from the
kinds of learning (reading written instruction, and listening to oral instruction without
visual aids) in which Emory asserts he is substantially limited.
     Likewise, the manner in which Emory received his computer training differs
significantly from the typical computer training given in a classroom setting.  As
discussed above, Emory received his computer training through Easter Seals' training
programs for persons with disabilities.  The Easter Seals instructor explained that when
employed adults (like Emory) came to Easter Seals for computer training it was
generally because they could not function in a classroom setting because the instruction
"went too fast."  JA374.  The Easter Seals instructor further explained that she
provided individualized computer instruction to Emory based on her determination that
Emory "needs to have visual aids in order to complete a task."  JA339.     
     As the First Circuit stated in Gillen, "[t]he key question is not whether a
handicapped person accomplishes [his] goals, but whether [he] encounters significant
handicap-related obstacles in doing so."  283 F.3d at 22.  For every goal Emory has
achieved that involved being trained in some new skill or activity, he had to overcome
significant disability-related obstacles to master the material he eventually learned. 
Under EEOC's regulations as well as the Supreme Court's formulation of "substantial
limitation" in Toyota, Emory's summary judgment evidence is sufficient for a
reasonable juror to conclude that he is substantially limited in the major life activity of
learning.  See Vinson v. Thomas, 288 F.3d at 1152-53 (reversing summary judgment
for defendant based on testimony of plaintiff's expert and plaintiff's personal
description of how his dyslexia impacted his ability to learn).  The district court erred
in failing to recognize that Emory's evidence of his cognitive limitations raises a factual
question as to whether Emory is substantially limited in learning.
C.   Emory Has a Record of a Substantial Limitation in Walking, Performing 
     Manual Tasks and Learning

     Finally, the district court erred in rejecting Emory's argument that he has a
record of an ADA disability based on medical documentation that his cerebral palsy
and learning disabilities substantially limited him in walking, performing manual tasks
and learning in the past.  As a very young child Emory was diagnosed with severe
difficulties with mobility and manual dexterity.  The record shows these impairments
were the subject of substantial medical and remedial attention throughout Emory's
childhood, including the use of leg braces starting when he was 21 months old, JA1056,
a hand splint when he was five and six, JA1049-JA1051, and weekly occupational and
physical therapy.  JA1049-JA1052.  Medical records indicate that as a very young child
he did not use his right limbs at all unless he was encouraged to do so.  JA1027.  At the
age of five he could undress himself, but was incapable of putting clothes on.  JA1028. 
During these early years there are numerous references in his medical records to the
fact that he frequently fell when walking.  E.g., JA1053-JA1055.  The record reflects
that today Emory still stumbles frequently, walks with a limp, and cannot walk in a
straight line.  JA64a-JA64b.  The district court's conclusion that Emory's present
mobility limitations are not severe enough to constitute an actual disability in walking,
2003 WL 22953185, at *4, does not resolve the question of whether Emory has a
record of such a disability, where Emory's childhood medical records reflect mobility
difficulties that were far more severe than today.  Emory's medical records document
that his past limitations in walking, as well as his limitations in performing manual
tasks, were substantial enough that a reasonable jury could conclude Emory has a
record of an ADA disability on this basis.  Likewise, the record reflects that his
learning difficulties were significant from childhood through the present, see JA1024,
JA873-JA874, JA878, and are, therefore, substantial enough that a reasonable jury
could conclude Emory also has a record of an ADA disability based on his limitations
in learning. See Davidson v. Midelfort Clinic, 133 F.3d at 510 (summary judgment
reversed where plaintiff's description of the manifestations of her learning-related
limitations and her means of compensating for them were specific enough "that one can
reasonably infer that her burdens were distinct from that of the average student").
                                                           CONCLUSION
     For all of the foregoing reasons, Amicus Curiae EEOC respectfully submits that
the record evidence demonstrates the existence of a number of disputed issues of
material fact with respect to Emory's claim that his impairments substantially limit one
or more major life activities.  Given Emory's evidence of the lifelong limitations caused
by his impairments in performing manual tasks and learning, as well as his evidence of
a record of disability based on his childhood limitations in walking, a reasonable jury
could find that plaintiff is a covered individual under the ADA.  This Court should,
therefore, reverse the district court's grant of summary judgment and remand this case
for trial.
                         Respectfully Submitted,

                         ERIC S. DREIBAND                   
                         General Counsel                         
                                   
                         CAROLYN L. WHEELER            
                         Acting Associate General Counsel        
                                   
                         LORRAINE C. DAVIS                  
                         Assistant General Counsel               

                                                                              
                         SUSAN R. OXFORD, Attorney 
                         U.S. Equal Employment  Opportunity Commission
                         1801 L Street, N.W.
                         Washington, D.C. 20507
Dated:    May 18, 2004        (202) 663-4791




             CERTIFICATION OF ADMISSION TO THE BAR

     This is to certify that the undersigned, attorney for the Amicus Curiae U.S. Equal
Employment Opportunity Commission, is a member of the Bar of the Third Circuit
Court of Appeals.

                              ___________________________________
                              SUSAN R. OXFORD
                              Attorney
                              U.S. Equal Employment Opportunity Comm.
                              1801 L Street, N.W.
                              Washington, D.C.   20507
                              (202) 663-4791

Date: May 18, 2004


                  CERTIFICATION OF COMPLIANCE

     Pursuant to F.R.A.P. 32(a)(7)(C), the undersigned hereby certifies that this brief
complies with the type-volume limitations imposed under F.R.A.P. 29(d).  The brief has
been printed using the 14 point font of "Times New Roman" and consists of 6,990
words, including footnotes, as determined by the electronic word count function of the
word processing program WordPerfect 9.

                              __________________________________
                              SUSAN R. OXFORD
                              Attorney
                              U.S. Equal Employment Opportunity Comm.
                              1801 L Street, N.W.
                              Washington, D.C.   20507
                              (202) 663-4791

Date: May 18, 2004


                     CERTIFICATE OF SERVICE

     I hereby certify that on this 18th day of May, 2004, I caused an original and ten
copies of the within Brief of Amicus Curiae to be sent to the Clerk of the U.S. Court
of Appeals for the Third Circuit by Federal Express, postage pre-paid, next-day-
delivery, and two copies to be sent to each of the following counsel of record by the
same means:

Barbara H. Stratton, Esq.               Edward S. Mazurek, Esq.
KNEPPER & STRATTON            		Kevin Ormerod, Esq.
1228 North King Street                  MORGAN LEWIS & BOCKIUS LLP
Wilmington, Delaware 19801              1701 Market Street
Attorney for Appellant                  Philadelphia, Pennsylvania 19103
                                   	Attorneys for Appellee

               

                              __________________________________
                              SUSAN R. OXFORD
                              Attorney
                              U.S. Equal Employment Opportunity Comm.
                              1801 L Street, N.W.
                              Washington, D.C.   20507
                              (202) 663-4791

Date: May 18, 2004
______________________________

1  The Commission takes no position on any other issue presented in this appeal.

2  The National Institute of Neurological Disorders and Stroke (NINDS), one of the federal governments National Institutes of Health, reports that approximately one-third of children born with cerebral palsy have a moderate or severe intellectual impairment, and another third are mildly intellectually impaired. See  http://www.ninds.nih.gov/health_and_medical/pubs/cerebral_palsyhtr.htm (3/31/04) at 4.

3  Emorys qualifications are not at issue in this appeal.  AstraZeneca has not asserted that Emory was not qualified for the position he sought, but only that the person selected for the position was the most qualified candidate.  JA1093. 

4  NINDSs website explains that [s]ymptoms of cerebral palsy lie along a spectrum of varying severity.  In the most severe cases, the individual is unable to walk and needs extensive, lifelong care.  Milder conditions can leave the affected individual only slightly awkward and in need of no special assistance.  See http://www.ninds.nih.gov/health_and_medical/pubs/cerebral_palsyhtr.htm ( 3/31/04) at 2.  The record in this case suggests that Emory falls somewhere in the middle. 

5  Although Emory characterizes these activities as manual tasks, they also fall within the major life activity of caring for oneself.  See Fenney v. Dakota, Minn. & Eastern R.R. Co., 327 F.3d 707, 715-16 (8th Cir. 2003) (evaluating caring for self in terms of dressing, personal hygiene and meal preparation).  The Supreme Courts focus in Toyota on manual tasks that are central to daily life, 534 U.S. at 197, has somewhat blurred the distinction between the major life activities of manual tasks and caring for oneself.  In any event, Emorys evidence demonstrates that he is unable to perform a significant number of manual tasks that are, undeniably, activities of central importance to most persons daily lives.  

6  The combined impairments of Emorys right arm, hand and leg also leave him unable to adjust the height of an office chair if the lever is located on the right side of the chair (as it often is).  Emory lacks the strength in his right arm and hand to pull or push the adjustment lever, but if he reaches over and grabs the lever with his left hand, his weight is then on his right hip and leg, and he lacks the right-side strength to push the chair up or down.  JA76. 

7  The court concluded that although Emory has some limitations in his ability to grip, carry and manipulate objects, and needs assistance in accomplishing some household chores, child care duties and activities involving his right side, these limitations are not substantial or severe.  2003 WL 22953185, at *4.  The court rejected Emorys claim that he has a record of a disability for the same general reasons.  Id. at *5.

8  The district court also noted Ordahls evidence that dressing himself took twice as long as it would an unimpaired person and that his circulatory condition (venous stasis disease) prevented him from sitting or standing still for very long and caused ulcerated sores on his legs that made walking difficult and painful.  301 F. Supp. 2d at 1028.

9  A number of courts have also recognized reading as a separate major life activity, apart from learning.  See, e.g., Gonzales v. Natl Bd. of Med. Examrs, 225 F.3d 620, 626 (6th Cir. 2000) (citing cases); Rothberg v. Law Sch. Admission Council, Inc., 300 F. Supp. 2d 1093, 1104 (D. Colo. 2004); Walsted v. Woodbury County, 113 F. Supp. 2d 1318, 1329 (N.D. Iowa 2000); Farrington v. Bath Iron Works Corp., No. 01-274, 2003 WL 278172 (D. Me. Feb. 7, 2003) (magistrate judges recommendation to deny defendants summary judgment motion).  But see Hileman v. City of Dallas, 115 F.3d 352, 355 n.4 (5th Cir. 1997) (expressing doubt that reading is a major life activity for purposes of the Rehabilitation Act).  In his complaint, Emory identified reading as one of the major life activities substantially limited by his impairments, JA28, but did not expressly raise it as a separate major life activity in opposition to summary judgment.  Given the evidence of Emorys substantial limitations in performing manual tasks and learning, this Court need not reach the issue of whether Emory is also substantially limited in reading.