Equal Employment Opportunity Commission v. rockwell Internation Corp 00-1897 00-2034 Nos. 00-1897 & 00-2034 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, v. ROCKWELL INTERNATIONAL CORP., INTERNATIONAL UNION OF UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, and LOCAL 1766 OF UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Defendants-Appellees, and CAMBRIDGE INDUSTRIES, INC., Defendant-Appellee/Cross-Appellant. ____________________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Honorable Robert W. Gettleman, Judge ____________________________________________________________ PETITION OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING EN BANC ____________________________________________________________ GWENDOLYN YOUNG REAMS DORI K. BERNSTEIN Deputy General Counsel Attorney PHILIP B. SKLOVER EQUAL EMPLOYMENT OPPORTUNITY Associate General Counsel COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7046 Assistant General Counsel Washington, D.C. 20507 (202)663-4734 STATEMENT PURSUANT TO FED. R. APP. P. 35(b) This case raises the important question of whether, and under what circumstances, demographic labor market evidence is required for a jury to find that an impairment substantially limits an individual's ability to work, or that an employer regards an individual as so limited, within the meaning of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12102(2). The Equal Employment Opportunity Commission ("Commission" or "EEOC") claims that Rockwell International Corporation ("Rockwell") violated the ADA by refusing to hire 72 qualified applicants for every nonskilled position at its manufacturing plant because it believed they had an increased likelihood of developing cumulative trauma injuries (such as carpal tunnel syndrome) and were therefore unable to perform any job requiring frequent repetitive motions or the use of vibratory power tools. Slip op. at 2-3.<1> A divided panel of this Court affirmed summary judgment against the Commission, holding that a jury could not find Rockwell regarded the claimants as substantially limited in their ability to work because the EEOC had not offered quantitative evidence "of the number and types of other jobs in Southern Illinois from which the job applicants would be excluded because of their perceived impairments." Id. at 9. The panel majority's decision conflicts with the following decisions of this Court holding that evidence of the real or perceived limitations arising from an impairment was sufficient for a jury to find an individual substantially limited in working, without requiring any evidence of the number and types of jobs available in the geographic labor market: DePaoli v. Abbott Laboratories, 140 F.3d 668 (7th Cir. 1998) Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997) Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7th Cir. 1996) TABLE OF CONTENTS Page STATEMENT PURSUANT TO FED. R. APP. P. 35(b) i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii STATEMENT OF FACTS 1 PANEL DECISION 3 ARGUMENT 4 CONCLUSION 15 CERTIFICATE OF SERVICE ADDENDUM EEOC v. Rockwell International Corp, et al., Nos. 00-1897 & 00-2034 Slip opinion (7th Cir., March 8, 2001) TABLE OF AUTHORITIES Page CASES Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1998) i, 8 Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7th Cir. 1996) i, 8, 12 Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir. 1998) 6, 7, 12 Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7th Cir. 1998) 5, 7 DePaoli v. Abbott Laboratories, 140 F.3d 668 (7th Cir. 1998) i, 6, 7, 12 EEOC v. Rockwell International Corp, et al., Nos. 00-1897 & 00-2034, Slip opinion (7th Cir., March 8, 2001) passim Mullins v. Crowell, 228 F.3d 1305 (11th Cir. 2000) 11, 12 Quint v. A.E. Staley Mfg. Co., 172 F.3d 1 (1st Cir. 1999) 12 Skorup v. Modern Door Corp., 153 F.3d 512 (7th Cir. 1998) 5, 6, 7, 10 Webb v. Clyde L. Choate Mental Health and Development Center, 230 F.3d 991 (7th Cir. 2000) 5, 10 Wellington v. Lyon County School Dist., 187 F.3d 1150 (9th Cir. 1999) 12 STATUTES Americans With Disabilities Act, 42 U.S.C. § 12102(2) i 42 U.S.C. § 12102(2)(C) 5, 11 Page RULES AND REGULATIONS 29 C.F.R. § 1630.2(j)(1) 10 29 C.F.R. § 1630.2(j)(2) 11 29 C.F.R. § 1630.2(j)(3)(i) 5, 10 29 C.F.R. § 1630.2(j)(3)(ii) 10, 11 29 C.F.R. § 1630.2(l) 5 ADMINISTRATIVE GUIDANCE 2 EEOC Compliance Manual ¶ 6888, § 912.8(f) 5 LEGISLATIVE HISTORY H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess (1990) 13, 14 STATEMENT OF FACTS In the early 1990s, Rockwell operated a manufacturing plant in Centralia, Illinois, where it produced automobile parts such as hoods, fenders and tailgates. R.183 ¶1; R.193 ¶20-21.<2> In an effort to reduce the rate of cumulative trauma disorders (such as carpal tunnel syndrome and tendinitis) in its workforce, Rockwell required all applicants to take a "nerve conduction test" and used the test results to screen out nonskilled applicants for all entry-level positions (trimmer, finisher and final finisher, assembler, molder, multi-operator, and RTM operator) at the Centralia plant. R.183 ¶¶9-10; R.192 ¶14. There is no dispute "that the applicants did not suffer from any impairment at the time they were turned away by Rockwell, but Rockwell merely regarded them as having an enhanced likelihood of developing impairments in the future." Slip op. at 3. Between July 26, 1992 and August 1, 1994, Rockwell denied employment to the 72 claimants in this case because their results on the nerve conduction test were not within what Rockwell considered the "normal range." R.192 ¶14; R.193 ¶6. Rockwell explained that it believed applicants with abnormal test results would develop cumulative trauma disorders such as carpal tunnel syndrome, tenosynovitis, and tendinitis if they worked as trimmers, finishers, final finishers, or assemblers, because those jobs involved "continuing repetitive motions and/or [the use of] vibratory power tools."<3> R.183 ¶19; R.193 ¶1. Rockwell conceded, for purposes of summary judgment, that the term "continuing," as used to describe the physical requirements of the Centralia factory positions, meant "frequent" (or greater). R237-1 (Transcript of May 26, 1999 hearing) (included in EEOC Br. App. tab 5). Between January 1992 and September 1995, Rockwell hired between 500-600 employees at its Centralia plant, and placed over 90% of these workers into three of the four entry-level jobs from which the claimants were excluded because of their test results: trimmer, finisher, and final finisher.<4> R.183 ¶¶3-4; R.193 ¶27. Rockwell used the test results to exclude nonskilled applicants from all entry-level jobs,<5> despite the variation in both the nature of the physical activity required and the types of vibratory tools used in each position. R.183 ¶¶17-18. Depending on the job, during an 8-hour shift, an employee could handle anywhere from 30 to 1000 parts, each part weighing between 8 ounces and 75 pounds. Id. ¶17. The vibratory tools used to perform each job varied as well: trimmers used pneumatic orbital sanders, routers, and right-angle grinders; assemblers used impact wrenches, pneumatic hand drills, and pneumatic ratchet wrenches; finishers used orbital sanders, pneumatic routers, hand drills, and pencil grinders; and final finishers used tap wrenches, orbital sanders, pneumatic routers, hand drills, and pencil grinders. Id. ¶18. It is undisputed that, apart from their scores on the nerve conduction tests, each of the 72 claimants was qualified for the entry-level nonskilled jobs at Rockwell's Centralia plant. Slip op. at 3. The Commission filed suit, alleging that Rockwell violated the ADA when it refused to hire the 72 claimants based on the results of their nerve conduction tests. Id. The district court granted summary judgment for Rockwell, holding that "the Commission could not prove Rockwell regarded the claimants as disabled because there was no evidence that Rockwell considered them foreclosed from an entire 'class of jobs' or a 'broad range of jobs in various classes' in the relevant geographic area."<6> Id. at 5. PANEL DECISION A divided panel of this Court affirmed. The panel majority held that the Commission could not "survive summary judgment in a case like this with no evidence of the demographics of the relevant labor market." Slip op. at 10. The majority "declin[ed] Rockwell's invitation to create a per se rule that a plaintiff cannot prevail without quantitative evidence of the precise characteristics of the local job market," but decided that because "this is not one of the rare cases in which the claimants' impairments are so severe that their substantial foreclosure from the job market is obvious . . . the Commission had to come up with some evidence of the number and types of other jobs in Southern Illinois from which the job applicants would be excluded because of their perceived impairments." Id. at 8-9. In a dissenting opinion, Judge Diane P. Wood determined that "the Commission did have evidence, of the most concrete kind imaginable" that "easily met the legal standards." Id. at 10 (D. Wood, J., dissenting). According to Judge Wood, the EEOC showed "in a pragmatic way, rather than through the use of statistics," that "if the claimants had actually had the disabilities [Rockwell] regarded them as having, the claimants would have been significantly restricted in their ability to perform either a class of jobs or a broad range of jobs in various classes." Id. at 12. Citing "concrete information about the characteristics of the jobs Rockwell thought these people could not perform," id., and "evidence showing that 90% of the entry-level unskilled jobs at Rockwell were off limits to the applicants," which "gave an objective view of how widely Rockwell's exclusionary practice was sweeping," id. at 14, Judge Wood concluded that "the sufficiency of the Commission's evidence to defeat summary judgment [is] clear." Id. at 16. ARGUMENT The majority and dissenting panel opinions frame the debate over the important question presented in this case: Whether, and under what circumstances, demographic labor market evidence is required for a jury to find that a real or perceived impairment substantially limits an individual's ability to work, or that an employer regards an individual as so limited? The panel majority holds that such evidence is required except in "one of the rare cases in which the claimants' impairments are so severe that their substantial foreclosure from the job market is obvious." Slip op. at 8. The rule announced by the majority fails to provide a workable standard to govern future cases, and conflicts with Circuit precedent, EEOC regulatory guidance, and Congress's intent in extending statutory protection against discrimination to individuals regarded as disabled. Because the panel opinion in this case leaves the law of this Circuit in disarray with respect to determining ADA coverage of individuals who are regarded as having impairments that limit them in working, and those who actually have such impairments, the Commission urges this Court to review en banc the summary judgment in favor of Rockwell. To demonstrate a substantial limitation on working under the ADA, a plaintiff "must show . . . that she was 'significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.'" Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506, 507 (7th Cir. 1998) (quoting 29 C.F.R. § 1630.2(j)(3)(i)). This Court has emphasized that the evidentiary burden to meet this standard "is not an onerous requirement," and that a plaintiff can survive summary judgment by presenting "some evidence from which one might infer that [she] faced 'significant restrictions' in her ability to meet the requirements" of jobs other than the position from which she was excluded.<7> Id. at 507; see also Skorup v. Modern Door Corp., 153 F.3d 512, 515 (7th Cir. 1998) (same). To establish statutory coverage under the "regarded as" prong of the ADA's definition of disability, 42 U.S.C. § 12102(2)(C), "the employer's perception of the plaintiff's inability to work must have a comparable breadth." Davidson, 133 F.3d at 511 (citing, inter alia, 29 C.F.R. § 1630.2(l); 2 EEOC Compliance Manual ¶ 6888, § 912.8(f), at 5328). This Court has previously recognized that "assembly line jobs" are a "class of jobs," for purposes of demonstrating a substantial limitation in working under the ADA. See Skorup, 153 F.3d at 515 (plaintiff "needed to identify what requirements posed by the class of assembly line jobs (or, alternatively, by a broad range of other jobs) were problematic in light of the limitations her fibromyalgia imposed upon her") (emphasis added); DePaoli v. Abbott Laboratories, 140 F.3d 668, 673 (7th Cir. 1998) ("Assembly line work is a recognized type of work in manufacturing plants, which requires different skills than those needed by, for example, the office staff, marketing, personnel, or research and development departments; it also typically has a pay scale that is distinct from those other lines of work."). This Court has further held that unskilled workers (like the claimants) with cumulative trauma injuries (like those Rockwell perceived these claimants as having) that limited their ability to perform manufacturing jobs (like the entry-level jobs in Rockwell's Centralia plant) raised a triable question of fact that they were significantly restricted from performing a class or broad range of jobs, and thus within ADA coverage. See id. (medical testimony that plaintiff's chronic tendinitis "foreclosed virtually any employment that required repetitive motions of her right hand" was sufficient to "indicate that she was precluded from a wide group of jobs in the Chicago area economy: virtually any assembly line job that required repetitive movement"); see also Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 675-76 (7th Cir. 1998) (employees with carpal tunnel syndrome and other repetitive stress injuries could show substantial limitation in working with evidence of inability to perform "the 'class of jobs'" defined by employer's "own classification" of "employees with production responsibilities" in auto manufacturing plant).<8> Based on this Court's precedent, it would thus appear "obvious" that a jury could find a nonskilled applicant for entry-level factory work, who is perceived to have an impairment sufficiently "severe" to foreclose any job requiring either frequent repetitive motions or the use of vibratory power tools, slip op. at 8, is regarded as significantly restricted in his ability to perform, at the very least, the "class of assembly line jobs." Skorup, 153 F.3d at 515. The majority provides no meaningful guidance to assist courts and litigants in this Circuit in identifying the "rare cases" in which demographic evidence is unnecessary because an impairment is "so severe" that the individual's "substantial foreclosure from the job market is obvious." Slip op. at 8. Nor does the majority furnish any principled basis to distinguish the "severity" of the impairments at issue in DePaoli and other cases where this Court held a jury could find the plaintiff substantially limited in working, without requiring any quantitative demographic evidence, from the "severity" of the impairments Rockwell perceived the claimants as having in this case. See Best v. Shell Oil Co., 107 F.3d 544, 548-49 (7th Cir. 1997) (evidence plaintiff's impaired knee might preclude him from all truck driving jobs, or that employer "perceived [plaintiff] as having a disability that prevented him from working as a truck driver," was sufficient to raise triable question whether plaintiff was substantially limited in working); Cochrum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th Cir. 1996) (medical restrictions on plaintiff with shoulder injury "-- no overhead work, heavy lifting, or pulling and pushing out from his body - might apply to a broad range of jobs, and are more than job specific," and were sufficient for jury to find "shoulder impairment does substantially limit his ability to work"). In marked contrast to the panel majority's undefined "severe" impairment standard, slip op. at 8, Judge Wood's dissenting opinion derives from the case law of this Circuit (and others) a cogent and principled analytic framework to determine when demographic evidence is required to show that an impairment significantly restricts an individual's ability to work in a class or broad range of jobs, or that an employer regards an individual as so limited. Id. at 13-15 (Wood, J., dissenting). In deciding "where to draw the line, and according to what criteria," Judge Wood suggests that "the starting point for analysis is appropriately the job or jobs from which the employer is excluding the allegedly disabled individual." Id. at 13. To determine whether disqualification from a job or jobs, based on a real or perceived impairment, is sufficient to show that the impairment substantially limits an individual in working, A court should look at the job skills that the employer demands for that job or jobs and determine how specific to the employer's own workplace they are. In general, the more particular the job requirements, the more necessary it will be for a plaintiff to present demographic evidence that shows that those requirements are in fact found in enough jobs to matter for ADA purposes. But if the job requirements include only a list like a high school diploma, the ability to lift more than 30 pounds, the ability to use power tools, the ability to perform frequent repetitive motions (without specifying the particular motion needed), and regular attendance, they are general enough to describe a broad range of jobs, or a certain class of unskilled work. Id. "A trier of fact," Judge Wood observed, "can tell the difference between generalized criteria that will cut across a broad range of jobs, and specialized criteria that are employer- and workplace-specific, whether or not a vocational expert tells it how many thousands of jobs in the relevant geographic area have similar requirements."<9> Id. A comparison of cases in which courts had not required "demographic evidence" to permit a finding that a claimant was substantially limited in working, with cases in which courts had required such evidence "further illustrated" the principles underlying Judge Wood's analysis. Id. at 14-15 (citing cases). Rockwell's perception that the claimants were physically "prohibited . . . from performing frequent repetitive motions or from using vibratory power tools," Judge Wood found, "is much more similar" to the limitations in cases where demographic labor market evidence was not required to permit a finding of disability, than to the more job- or workplace-specific restrictions in cases where courts held demographic proof was essential. Id. at 15. Judge Wood saw "nothing to be gained by having vocational experts routinely appear in ADA cases solely for the purpose of testifying that a broad range of jobs require the ability to lift 30 pounds, or the ability to perform repetitive motions." Id. at 15. Citing this Court's holding in DePaoli that "an impairment that prohibited the claimant from making repetitive motions with her right hand raised a triable issue of fact as to whether she was disabled," id. at 14, Judge Wood concluded that the evidence that Rockwell treated the claimants as if they "were already suffering from injuries that kept them away from frequent repetitive motions and the use of vibratory power tools" was clearly sufficient to defeat summary judgment. Id. at 15-16. Consistent with the analysis outlined in the dissent, this Court has previously indicated that an ADA claimant can demonstrate a substantial limitation in working by presenting "some evidence from which one might identify requirements common to . . . positions" like the one from which she was excluded "that [she] would find it difficult to meet without accommodation." Davidson, 133 F.3d at 507 (plaintiff "needed to identify what requirements posed by the class of psychotherapy jobs (or alternatively, by a broad range of other jobs) were problematic in light of the limitations" her impairment imposed on her); see also Webb, 230 F.3d at 998-99 ("while [plaintiff's] condition may impair his ability to perform in the specialized niche of psychology . . . which requires direct interaction with violent and/or infectious patients, [he] is not disabled as a psychologist generally"); accord Skorup, 153 F.3d at 515 (plaintiff "needed to identify what requirements posed by the class of assembly line jobs (or, alternatively, by a broad range of other jobs) were problematic in light of the limitations her fibromyalgia imposed upon her" to show substantial limitation in working). The panel majority misreads "the Commission's own regulations" as requiring that, to demonstrate a substantial limitation in working, a plaintiff's "case must include some proof of the 'number and types of jobs' within the 'geographical area to which the [claimant] has reasonable access.'" See slip op. at 7-8 (quoting 29 C.F.R. § 1630.2(j)(3)(ii)(A), (C)).<10> In direct contrast to the panel majority, the Eleventh Circuit relied on the clear language of the EEOC's regulations as the basis for rejecting an employer's argument "that to avoid summary judgment the plaintiffs were required to present expert demographic evidence regarding the number of jobs available or unavailable in the relevant geographic region." Mullins v. Crowell, 228 F.3d 1305, 1314 n.18 (11th Cir. 2000). Noting the absence of "any controlling authority" for such a rule, the Eleventh Circuit held: "[B]ecause we have been instructed that we 'may' and 'should' (not 'shall' or 'must') consider the existence of jobs in the relevant geographical area, without reference to whether a vocational expert is required, we conclude that expert vocational evidence, although instructive, is not necessary to establish that a person is substantially limited in the major life activity of working." Id. While purporting to reject "a per se rule that a plaintiff cannot prevail without quantitative evidence of the precise characteristics of the local job market," slip op. at 8, the panel majority in effect imposes a per se requirement to produce such evidence on ADA claimants who are denied jobs they were qualified to perform based solely on an employer's perception that they are limited in their ability to work. See 42 U.S.C. § 12102(2)(C). It is difficult to imagine how a claimant with no actual disability, who is fully able to work, could ever show that a perceived impairment is of such severity that his "substantial foreclosure from the job market" is "obvious," and that his is thus "one of the rare cases" in which the panel majority would not require quantitative demographic evidence. See slip op. at 8. Individuals who have no actual impairments will be unable to present personal or medical testimony describing their physical or mental restrictions, as did the plaintiffs in DePaoli and Cochrum.<11> Nor would a claimant without an actual disability be able to show, from his own job-hunting experience, that a non-existent condition impeded his ability to find work in his area. See Mullins, 228 F.3d at 1314 n.18 (suggesting "a plaintiff could testify from his or her own extensive job search whether other jobs that he or she could perform were available in the geographical area"). As Judge Wood observed, "we cannot precisely compare the severity of the disability suffered by the [claimants] with that of plaintiff DePaoli, for the simple reason that these people were not yet disabled at all." Slip op. at 15 (Wood, J., dissenting). The ADA's legislative history clearly shows that Congress did not intend to impose on individuals who suffer discrimination based on the (mis)perceptions of others the evidentiary burden required by the panel majority in this case. As explained in the Report of the House Judiciary Committee, "a person who is rejected from a job because of the myths, fears and stereotypes associated with disabilities would be covered under this third test, whether or not the employer's perception was shared by others in the field and whether or not the person's physical or mental condition would be considered a disability under the first or second part of the definition" of "disability" in the statute. H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess 29 (1990) ("Committee Report"). Among the "common barriers that frequently result in employers excluding disabled persons," Congress identified "concerns regarding productivity, safety, insurance, liability, attendance, cost of accommodation and accessibility, and acceptance by co-workers and customers." Id. This "list of frequent workplace concerns . . . illustrates . . . the attitudinal barriers that Congress clearly intended to include within the meaning of 'regarded as' having a disability under the Rehabilitation Act and now under the ADA." Id. The Committee Report further explains that "[i]t is not necessary for the covered entity to articulate one of these concerns" to establish coverage under the "regarded as" prong of the statutory definition of "disability." Id. at 29. Nor is "[a] person who is covered because of being regarded as having an impairment . . . required to show that the employer's perception is inaccurate, e.g., that he will be accepted by others, or that insurance rates will not increase, in order to be qualified for the job." Id. at 30. In the employment context, if a person is disqualified on the basis of an actual or perceived physical or mental condition, and the employer can articulate no legitimate job-related reason for the rejection, a perceived concern about employing persons with disabilities could be inferred and the plaintiff would qualify for coverage under the "regarded as" test. Id. at 29-30. To illustrate the intended scope of statutory protection for individuals regarded as disabled, and the proper application of the "regarded as" provision, the Committee Report concludes its explanation with the following example: For example, many people are rejected from jobs because a back x-ray reveals some anomaly, even though the person has no symptoms of a back impairment. The reasons for the rejection are often the fear of injury, as well as increased insurance or worker's compensation costs. These reasons for rejection rely on common barriers to employment for persons with disabilities and therefore, the person is perceived to be disabled under the third test. Id. at 40. If "nerve conduction test" replaces "back x-ray," and "cumulative trauma injury" replaces "back impairment," the above example describes precisely Rockwell's treatment of the claimants in this case, and demonstrates most clearly that the Commission's evidence was without question sufficient to establish that they are within the statutory coverage intended by Congress. Rockwell admits that it refused to hire the claimants for entry-level non-skilled jobs they were qualified to perform because the company wanted to reduce the rate of cumulative trauma injuries in its workforce and believed that the claimants had an increased likelihood of developing such injuries in these jobs. See slip op. at 2-3. Thus, by Rockwell's own admission, the claimants were denied employment based on "the attitudinal barriers that Congress clearly intended to include within the meaning of 'regarded as' having a disability under . . . the ADA," Committee Report at 29, and no further evidence should be necessary to demonstrate statutory coverage. CONCLUSION For the foregoing reasons, and those stated in the briefs previously filed by the Commission in this appeal, the EEOC urges this Court to grant rehearing en banc of the district court's decision granting summary judgment for Rockwell and dismissing this suit without trial. ______________________________ GWENDOLYN YOUNG REAMS DORI K. BERNSTEIN Deputy General Counsel Attorney PHILIP B. SKLOVER EQUAL EMPLOYMENT OPPORTUNITY Associate General Counsel COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7046 Assistant General Counsel Washington, D.C. 20507 (202)663-4734 CERTIFICATE OF SERVICE I, Dori K. Bernstein, hereby certify that I served two copies of the foregoing brief, and one copy of the foregoing brief on digital media, this 19th day of April 2001, by first-class mail, postage pre-paid, to the following counsel of record: Nina G. Stillman, Esq. Vedder, Price, Kaufman, and Kammholz 222 N. LaSalle Street, # 2600 Chicago, Illinois 60601 Melanie LaFave, Esq. Jaffe, Raitt, Heuer and Weiss One Woodward Ave., # 2400 Detroit, Michigan, 48226 Marsha Tolchin, Esq. Ungaretti and Harris Three First National Plaza, # 3500 Chicago, Illinois 60602 Barbara Hillman, Esq. Gail Mrozowski, Esq. Peter Swanson, Esq. Cornfield and Feldman 25 E. Washington, Suite 1400 Chicago, IL 60602 Michael Erp, Esq. Martha Garcia, Esq. Katz, Friedman, Schur and Eagle 77 W. Washington Street, 20th Floor Chicago, Illinois 60602-2801 ______________________________ DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202) 663-4734 ADDENDUM EEOC v. Rockwell International Corp, et al., Nos. 00-1897 & 00-2034 Slip opinion (7th Cir., March 8, 2001) 1 A copy of the slip opinion is included as an addendum to this petition. 2 Record references correspond to the numbered entries in the district court docket sheet and are denoted "R__." This factual statement is drawn from Rockwell's Statement of Undisputed Facts (R.183); the EEOC's Response to Rockwell's Statement of Undisputed Facts (R.192); the EEOC's Statement of Additional Undisputed Facts (R.193); and the panel opinion. 3 There is no scientific evidence that an abnormal result on the nerve conduction test performed by Rockwell in this case can, in and of itself, predict whether an individual will develop carpal tunnel syndrome in the future. R.193 ¶ 7-9. An individual with an abnormal test result can still have normal hand function with no symptoms of carpal tunnel syndrome and no observable impairments. Id. ¶ 7. Nerve conduction tests are irrelevant to predicting whether an individual may develop tenosynovitis or tendinitis, because these conditions relate to tendons, and are not caused by the impairment of the median nerve. Id. ¶9. 4 Rockwell also rejected applicants with abnormal test results for the remaining three nonskilled positions (molder, multi-operator, and RTM operator), because new employees could be bumped from these jobs by more senior employees, and thus might later be expected to work as trimmers, finishers, final finishers, or assemblers. R.192 ¶14; R.193 ¶¶16-19. 5 "Rockwell's policy applied only to nonskilled applicants. The company did hire skilled trade workers, such as electricians and tool & dye workers, regardless of their scores on the nerve conduction test." Slip op. at 2. 6 Prior to ruling on Rockwell's summary judgment motion, the district court excluded the report of the Commission's vocational expert, and denied the EEOC's motion to supplement the record with the report and testimony of Rockwell's expert ergonomist, Dr. Smith. See slip op. at 4-5. The EEOC did not appeal the exclusion of the vocational expert's report. Id. at 5 n.3. While the EEOC challenged on appeal the district court's refusal, on grounds of timeliness and relevance, to consider Dr. Smith's evidence, the Commission does not seek en banc review of the appellate panel's holding that this evidentiary ruling was not an abuse of discretion. See id. at 5-6. In this petition, the EEOC argues, as it did before the panel, that even without the additional support Dr. Smith's report and testimony would have provided, a reasonable jury could find Rockwell violated the ADA by refusing to hire the claimants because it perceived them as having impairments that substantially limit them in working. See Br. of EEOC as Appellant at 15, 18, 22-27; Consolidated Reply and Response Br. of EEOC at 10-11, 14-15. 7 The plaintiff in Davidson was terminated from her position as a psychotherapist because her residual attention deficit hyperactivity disorder ("ADD") made it difficult for her to dictate her patient notes for transcription in a timely manner. 133 F.3d at 506-07. Because "timely dictation . . . was only one aspect" of the plaintiff's job, and the record did "not suggest that ADD imposed other limitations on her ability to function effectively in her role as a counselor," this Court found insufficient evidence that her condition substantially limited her ability to work. Id. at 507. "What is missing" from the record, this Court determined, "is some evidence from which one might identify requirements common to counseling positions, for example, that [the plaintiff] would find it difficult to meet without accommodation." Id.; see also Webb v. Clyde L. Choate Mental Health and Development Center, 230 F.3d 991, 998 (7th Cir. 2000) (psychologist whose asthma, osteoporosis, and weakened immune system "forecloses his employment only in the specialized niche of Choate psychologist, which requires interaction with potentially violent and/or infectious patients" was not substantially limited in working because he was "not precluded from employment as a psychologist in an environment that does not house patients such as those at Choate"). 8 The plaintiffs in Dalton presented, "[a]s an alternative method of proof," the declaration of a vocational rehabilitation specialist, which this Court found "more pertinent to the 'broad range of jobs' method" of proving a substantial limitation in working. 141 F.3d at 675-76. The expert estimated the number of jobs within the geographical area that a "nondisabled high school graduate" could perform with some training, and quantified the percentage by which each plaintiff's job prospects were reduced due to their impairments. Id. at 676 (estimated reduction ranging between 35% and 85%). Significantly, Judge Evans, who authored the majority opinion in this case, concurred in both DePaoli and Dalton. In DePaoli, Judge Evans concluded that the plaintiff, who "now works as a sales associate at a furniture store," could not demonstrate that her chronic tendinitis and tenosynovitis in her right hand was substantially limiting. 140 F.3d at 675 (Evans, J., concurring). In Dalton, notwithstanding the plaintiffs' demographic vocational evidence, 141 F.3d at 676, Judge Evans would have upheld summary judgment against those "claimants [who] have some variation of carpal tunnel syndrome (CTS)," because "more than a 'physical impairment' is required before a finding of 'disability' can be made under the ADA." Id. at 681 (Evans, J., concurring) (citing DePaoli concurrence). Thus, while the panel majority in this case recites this Court's repeated admonition that the plaintiff's evidentiary burden to demonstrate a substantial limitation on working "'is not an onerous requirement,'" slip op. at 9 (quoting Davidson, 133 F.3d at 507); see also Skorup,153 F.3d at 515, Judge Evans' concurrence in Dalton invites questions about the amount and type of demographic evidence a plaintiff must produce to meet this burden, and raises considerable doubt whether, in the panel majority's view, any evidence the EEOC could have offered would be enough to get this case to a jury. 9 Judge Wood also found it "appropriate . . . to see how many jobs the particular employer thought were affected by the perceived disability: just one or two, or a broad range?" Slip op. at 13-14 (Wood, J., dissenting). Evidence that "90% of the entry-level unskilled jobs at Rockwell were off limits" to the claimants, Judge Wood noted, "gave an objective view of how widely Rockwell's exclusionary practice was sweeping." Id. at 14. 10 The EEOC's regulations generally define the term "substantially limits" to mean "[u]nable to perform," or "significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity," as compared with "the average person in the general population." 29 C.F.R. § 1630.2(j)(1). More specifically, "[w]ith respect to the major life activity of working," the regulations define "substantially limits" as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes, as compared to the average person having comparable training, skills, and abilities," and specify that "[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i). The regulations identify three factors that "should be considered in determining whether an individual is substantially limited in a major life activity": the "nature and severity of the impairment"; the "duration or expected duration of the impairment"; and the actual or expected "permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2). In addition to these factors which "should be considered" in deciding whether an impairment substantially limits any major life activity, id. (emphasis added), the regulations list three more factors that "may be considered" in making this determination with respect to the major life activity of working: the "geographical area to which the individual has reasonable access"; the "job from which the individual has been disqualified, and the number and types of jobs utilizing similar training, knowledge, skills or abilities" within that area "from which the individual is also disqualified . . . (class of jobs)"; and "the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, from which the individual is also disqualified . . . (broad range of jobs in various classes)." 29 C.F.R. § 1630.2(j)(3)(ii) (emphasis added). 11 See DePaoli, 140 F.3d at 673 (doctors' testimony about plaintiff's limitations was sufficient to "indicate that she was precluded from a wide group of jobs in the Chicago area economy: virtually any assembly line job that required repetitive movement"); Cochrum, 102 F.3d at 911 (medical restrictions against overhead work, heavy lifting, or pulling and pushing were sufficient for jury to find plaintiff's "shoulder impairment does substantially limit his ability to work"); see also Dalton, 141 F.3d at 676 (plaintiffs' "own testimony about the effect of their disabilities on their work as production associates" in auto manufacturing plant would support finding them substantially limited in working); Wellington v. Lyon County School Dist., 187 F.3d 1150, 1155 (9th Cir. 1999) (doctor's testimony that plaintiff was "permanently unable to perform work involving 'metal fabrication, welding, ... heavy activities, carpentry, ... the use of a variety of tools to do maintenance and repairs," and plaintiff's testimony about pain he felt in light plumbing job, raised triable question whether he was substantially limited in working); Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 12 (1st Cir. 1999) (jury reasonably found plaintiff substantially limited in working based on doctor's testimony that her limitations would "probably preclude a lot of physical jobs" and there were "a lot of physical jobs" in home state).