Equal Employment Opportunity Commission 00-1897 00-2034 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 00-1897 & 00-2034 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, v. ROCKWELL INTERNATIONAL CORP., INTERNATIONAL UNION 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 CONSOLIDATED REPLY AND RESPONSE BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT IN CASE NO. 00-1897 AND CROSS-APPELLEE IN CASE NO. 00-2034 C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW. Washington, D.C. 20507 (202) 663-4728 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION 1 ARGUMENT AS APPELLANT 3 I. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO CONSIDER THE REPORT AND TESTIMONY OF ROCKWELL'S ERGONOMIST MICHAEL SMITH . . . . . . . . . . . . . . . . . . . . . . 3 II. THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION TO AWARD SUMMARY JUDGMENT TO THE DEFENDANTS BECAUSE A REASONABLE JURY COULD FIND THAT ROCKWELL DISCRIMINATED AGAINST THE CLAIMANTS IN VIOLATION OF THE ADA . . . . . 9 A. A reasonable jury could find that Rockwell regarded the claimants as substantially limited in working, and therefore disabled . . . . . . . . . . . . . . . . . 9 B. Because a reasonable jury also could find in favor of the Commission on the remaining elements of its claim that Rockwell discriminated against the claimants in violation of the ADA, this Court must reverse the district court's decision to enter judgment in favor of the defendants-appellees and remand this case for further proceedings. . . . . . . . . . . 16 ARGUMENT AS CROSS-APPELLEE 18 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . 18 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . 18 DISTRICT COURT DECISION . . . . . . . . . . . . . . . . . . . 19 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 20 THIS COURT SHOULD AFFIRM THE DISTRICT COURT'S RULING THAT CAMBRIDGE IS ROCKWELL'S SUCCESSOR AND MAY BE HELD LIABLE FOR ROCKWELL'S VIOLATIONS OF THE ADA AT THE CENTRALIA FACILITY . . . . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION 28 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES PAGE(S) Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997) . . . . 11, 13 Brown v. Evening News Association, 473 F. Supp. 1242 (E.D. Mich. 1979) . . . . . . . . . . . . . . . . . . . . . 25 EEOC v. G-K-G, Inc., 39 F.3d 740 (7th Cir. 1994) . . . . . 21, 23 24 Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7th Cir. 1996) . 11, 13 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) . . . . . . . . . . . . . . . . . . . . 5 Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . 10, 11 DePaoli v. Abbott Labs., 140 F.3d 668 (7th Cir. 1998) . . . 11, 13 Doren v. Battle Creek Health System, 187 F.3d 595 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 12 Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) . . . . . . . . . 25 Gaddy v. Abex Corp., 884 F.2d 312 (7th Cir. 1989) . . . . . . 25 King v. Cooke, 26 F.3d 720 (7th Cir. 1994) . . . . . . . . . . 6 Knapp v. Eagle Prop. Mgmt. Corp., 54 F.3d 1272 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 26 Mraovic v. Elgin, Joliet & Eastern Railway, 897 F.2d 268 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . 15, 28 Muller v. Costello, 187 F.3d 298 (2d Cir. 1999) . . . . . . . 12 Musikiwamba v. ESSI, Inc., 760 F.2d 740 (7th Cir. 1985) . . 20, 23 NLRB v. Madison Courier, Inc., 472 F.2d 1307 (D.C. Cir. 1972) . . . . . . . . . . . . . . . . . . . . . 24 Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1 (1st Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 12 Real v. Continental Group, Inc., 627 F. Supp. 434 (N.D. Cal. 1986) . . . . . . . . . . . . . . . . . . . . . 25 Schulz v. Serfilco, Ltd., 965 F.2d 516 (7th Cir. 1992) . . . . . 5 Skorup v. Modern Door Corp., 153 F.3d 512 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . 10, 11 Souter v. International Union, 993 F.3d 595 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . 5 Sutton v. United Air Lines, 527 U.S. 471, 119 S. Ct. 2139 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Trustmark Life Insurance Co. v. University of Chicago Hospitals, 207 F.3d 876 (7th Cir. 2000) . . . . . . . . 5, 26 Upholsterers' International Union Pension Fund v. Artistic Furniture of Pontiac, 920 F.2d 1323 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . 23 Wallace v. Tilley, 41 F.3d 296 (7th Cir. 1994) . . . . . . . . . 6 Wellington v. Lyon County Sch. District, 187 F.3d 1150 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . 12, 14 Wheeler v. Snyder Buick, Inc., 794 F.2d 1228 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . 19, 21 22, 23 27 Williams v. Pharmacia, Inc., 137 F.3d 944 (7th Cir. 1998) . . . 26 REGULATIONS 29 C.F.R. § 1630.2(j)(3) . . . . . . . . . . . . . . . . . 12, 13 29 C.F.R. § 1630.2(j)(3) . . . . . . . . . . . . . . . . . . 7, 8 10, 13 29 C.F.R. Pt. 1630, App. § 1630.2(j) . . . . . . . . . . . . . 13 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 00-1897 & 00-2034 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, v. ROCKWELL INTERNATIONAL CORP., INTERNATIONAL UNION 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 CONSOLIDATED REPLY AND RESPONSE BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT IN CASE NO. 00-1897 AND CROSS-APPELLEE IN CASE NO. 00-2034 INTRODUCTION In its opening brief, plaintiff Equal Employment Opportunity Commission ("Commission") argued that this Court should reverse the district court's decision to enter judgment in favor of defendants Rockwell International Corporation ("Rockwell"), Cambridge Industries ("Cambridge"), the International Union and Local 1766 ("the Unions").<1> The Commission argued that the district court abused its discretion when it denied the Commission's timely motion to supplement the summary judgment record with evidence, provided by Rockwell's ergonomist Michael Smith, that was relevant to whether Rockwell regarded the claimants as substantially limited in working. See EEOC Brief at 18-21. The Commission also argued that this Court should reverse the district court's decision to enter judgment in favor of the defendants because a reasonable jury could find that Rockwell regarded the claimants as disabled, and could also find for the Commission on the remaining elements of its ADA claims. See EEOC Brief at 22-31. In response to the Commission's arguments, Rockwell<2> says little of merit in defense of the district court's rulings, instead offering unsupported arguments about the reasoning underlying the district court's refusal to consider Smith's evidence and the legal standard that applies when an individual claims that an employer regarded him as substantially limited in working. This Court should reject Rockwell's arguments and reverse the district court's decision to enter judgment in favor of the defendants because there is ample evidence in the record for a reasonable jury to find that Rockwell violated the ADA when it refused to hire the claimants to work in its facility in Centralia, Illinois. ARGUMENT AS APPELLANT I. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO CONSIDER THE REPORT AND TESTIMONY OF ROCKWELL'S ERGONOMIST MICHAEL SMITH In its opening brief, the Commission argued that the district court abused its discretion when it denied the Commission's motion to supplement the summary judgment record with Smith's evidence. See EEOC Brief at 18.<3> In response, Rockwell says little of merit in defense of the district court's ruling, and instead distorts the procedural history leading to the court's ruling, and refers this Court to other evidentiary rulings not at issue in this appeal. See, e.g., Rockwell Brief at 10-12 (discussing evidence provided by Arun Garg and Michael Brethauer). This Court should ignore Rockwell's efforts to distort and distract, and instead hold that the district court abused its discretion when it refused to consider Smith's evidence. In defending the district court's ruling, Rockwell initially seeks refuge in a distorted, irrelevant and often unsupported summary of the procedural history that preceded the Commission's request to supplement the summary judgment record. For example, Rockwell improperly claims that the parties "agreed . . . that expert ergonomics evidence would be irrelevant to . . . whether Rockwell regarded the Claimants as substantially foreclosed from the job market" when the record citation provided says nothing of the sort. See Rockwell Brief at 11, 12 (citing A20, which makes no mention of any such agreement). Similarly, although the Commission argues that the district court should have considered Smith's evidence, Rockwell refers this Court to evidence provided by other witnesses. See Rockwell Brief at 11 (discussing evidence provided by Michael Brethauer and Arun Garg). The reason for these tactics is obvious. Rockwell has no valid argument to make in defense of the district court's ruling that the Commission's motion to supplement the summary judgment record with Smith's evidence was untimely. Indeed, Rockwell has no response to the Commission's argument that it presented Smith's evidence to the court (on May 20, 1999) a mere 1.5 months after the evidence became available, and did so reasonably in advance of the June 22, 1999 oral arguments on Rockwell's motion for summary judgment. See EEOC Brief at 18. Nor does Rockwell have a valid response to the Commission's claim that, because Smith is Rockwell's own expert, no undue prejudice or delay would have resulted had the district court considered his report and testimony. Lacking a legitimate response, Rockwell asserts two arguments for the first time ever in this litigation, arguing that the Commission's motion was untimely because the Commission did not invoke Rule 56(f) to seek a continuance to conduct further discovery, and taking the novel position that, had the district court been inclined to consider Smith's evidence, Rockwell would have challenged Smith's evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), even though Smith was its own expert. See Rockwell Brief at 12-14. As a preliminary matter, this Court should reject Rockwell's newly concocted arguments because Rockwell waived them when it failed to present them to the district court. See A28-32 (oral argument on motion to supplement summary judgment record, where Rockwell did not mention Rule 56(f) or any intent to challenge Smith's evidence under Daubert); R.254, Exhibit B, Smith Dep. at 120-23 (no objection by Rockwell to Smith's testimony about rate of repetitive motion required for other jobs). See also Trustmark Life Ins. Co. v. University of Chicago Hosps., 207 F.3d 876, 881 (7th Cir. 2000) (arguments not presented to the district court are waived). More importantly, Rockwell's arguments fail because they lack merit. There is nothing unusual about a party submitting a motion to supplement the materials it has filed at the summary judgment stage. In fact, this Court has suggested that, instead of waiting until after the district court rules on a motion for summary judgment, a party should file a supplement to allow the district court to consider any additional evidence before reaching a decision. See, e.g., Schulz v. Serfilco, Ltd., 965 F.2d 516, 519-20 (7th Cir. 1992) (suggesting that the plaintiff could have responded to the defendant's motion for summary judgment by filing such a supplement). See also Souter v. International Union, 993 F.3d 595, 599 (7th Cir. 1993) (noting the district court's view that, to present additional evidence, the plaintiff should have filed a motion to supplement his summary judgment materials). The cases Rockwell cites on page 13 of its brief are inapposite, as nothing in those decisions (or in Rule 56(f)) calls into question the practice of allowing parties to supplement their summary judgment materials before the court rules on the motion.<4> Rockwell's argument that Smith's evidence could be challenged under Daubert also lacks merit. Rockwell claims that the Commission intends to use Smith's evidence to establish the "labor market conditions in the Centralia, Illinois area." Rockwell Brief at 13. In so arguing, Rockwell fails to grasp that the Commission refers to Smith's evidence because, in analyzing the physical activities necessary for the jobs Rockwell denied the claimants (an "ergonomic" analysis that Rockwell concedes Smith was qualified to make), Smith shed light on Rockwell's perceptions about the claimants and their physical limitations. See infra p. 8 (Smith's analysis shows that Rockwell did not believe the claimants could perform any job requiring a 12 percent or greater rate of repetitive motion). Those perceptions are directly relevant to whether the claimants, as perceived by Rockwell, were "significantly restricted in their 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." 29 C.F.R. § 1630.2(j)(3)(i). Thus, Smith's evidence would be admissible at trial even if Rockwell took the bizarre step of challenging the report and testimony of its own expert. Given the admissibility of Smith's evidence, the lack of undue prejudice to Rockwell, and the fact that the district court had ample time to consider Smith's evidence before ruling on Rockwell's summary judgment motion, the court abused its discretion when it refused to allow the Commission to supplement the summary judgment record with Smith's evidence. In an equally misguided effort to defend the district court's refusal to consider Smith's evidence, Rockwell argues that Smith's evidence is irrelevant because it is not the type of quantitative evidence about the job market that Rockwell claims is required when an individual claims to be substantially limited in working. See Rockwell Brief at 15 (arguing that the Commission was required to present "vocational evidence" about the number and types of jobs from which the claimants are disqualified in the geographical area to which they have access).<5> While quantitative evidence about the job market is relevant, it is not required, and, more to the point, it certainly is not the only type of relevant evidence that may be used to demonstrate limitations in working, real or perceived. See 29 C.F.R. § 1630.2(j)(3)(ii) (evidence about the numbers and types of jobs in a geographical area "may be considered"). In addition, Rockwell, like the district court, misses the point that Smith's evidence is relevant because it establishes the nature of Rockwell's perceptions about the claimants and their perceived physical limitations. For example, Smith's evidence establishes that Rockwell did not believe the claimants could perform a job (trimmer for 530 fender) that required them to engage in upper extremity motion for only 12 percent of their time on the job. See EEOC Brief at 10 n.9. This type of information about Rockwell's perceptions<6> is directly relevant to the question of whether the claimants, as perceived by Rockwell, were substantially limited in working, because it sheds light on whether the claimants, as perceived, were significantly restricted in their ability to perform a class or broad range of jobs, as compared to the average person.<7> Because Smith's evidence is relevant and was presented in a timely manner, the district court abused its discretion when it refused to consider his report and testimony. II. THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION TO AWARD SUMMARY JUDGMENT TO THE DEFENDANTS BECAUSE A REASONABLE JURY COULD FIND THAT ROCKWELL DISCRIMINATED AGAINST THE CLAIMANTS IN VIOLATION OF THE ADA A. A reasonable jury could find that Rockwell regarded the claimants as substantially limited in working, and therefore disabled In its opening brief, the Commission argued that Rockwell violated the ADA when it regarded the claimants as being substantially limited in working, and then refused to hire them because of their perceived physical limitations. See EEOC Brief at 22. Relying on this Court's case law and the Commission's regulations, the Commission argued that a reasonable jury considering Rockwell's sweeping determinations about the claimants' fitness for work could find that Rockwell regarded the claimants as significantly restricted in their ability to perform either a class or broad range of jobs, as compared to the average person. See id. at 22-27. The Commission added that Smith's evidence supports the conclusion that Rockwell regarded the claimants as disabled. See id. at 27-29. In response, Rockwell makes no effort to address the Commission's evidence or defend the merits of its hiring practices. Instead, Rockwell urges this Court to hold, despite binding precedent to the contrary, that the Commission was required to prove its case with quantitative evidence about the claimants and their exclusion from the job market in the geographical area. See Rockwell Brief at 19-24 (arguing that "vocational data" is essential). Compare Skorup v. Modern Door Corp., 153 F.3d 512, 515 (7th Cir. 1998) (explaining that this Court "do[es] not require that plaintiffs establish the precise percentage of jobs their impairment prevents them from performing"). This Court should reject Rockwell's invitation to disregard established precedent. An individual is substantially limited in working if she is (or is regarded as) significantly restricted in the ability to perform either a class or a broad range of jobs, as compared to the average person having comparable training, skills and abilities. See EEOC Brief at 23-24. See also 29 C.F.R. § 1630.2(j)(3)(i) (stating this definition); Sutton v. United Air Lines, 527 U.S. 471, ___, 119 S. Ct. 2139, 2150-51 (1999) (applying this definition); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998) (same). This Court does not require an individual seeking to establish a substantial limitation in working to present quantitative evidence about the precise percentage of jobs her impairment precludes her from performing, as it is enough to present some admissible evidence (of any kind) indicating that the individual is significantly restricted in performing either a class or broad range of jobs. See EEOC Brief at 22-23, 25 (citing Skorup, 153 F.3d at 515; Davidson, 133 F.3d at 507). See also Skorup, 153 F.3d at 515 (indicating that, to assess whether an individual is substantially limited in working, a court only needs evidence that establishes general guideposts about whether her impairment forecloses her from a few, many, or most of the jobs in a class or broad range of jobs); DePaoli v. Abbott Labs., 140 F.3d 668, 673 (7th Cir. 1998) (finding a triable issue of fact on whether the plaintiff was disabled, without relying on quantitative evidence about the plaintiff's ability to qualify for jobs in the area); Best v. Shell Oil Co., 107 F.3d 544, 548 (7th Cir. 1997) (same); Cochrum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th Cir. 1996) (same). Summary judgment was inappropriate here because a reasonable jury could find that Rockwell perceived the claimants as substantially limited in working, and therefore disabled. Despite the well-established standard of proof that applies when the plaintiff argues substantial limitation in working, Rockwell asks this Court to hold that the Commission was required to prove its case with quantitative evidence. See Rockwell Brief at 19-24. This Court should reject Rockwell's argument. The most obvious reason for doing so is that this Court rejected Rockwell's argument in its 1998 decision in Skorup. See supra p. 10. Although Rockwell tries to steer around this problem by directing this Court to decisions from other circuits, and even to an unpublished district court decision (see Rockwell Brief at 19, 21) none of this changes the fact that in this circuit, quantitative evidence about the exact extent of an individual's foreclosure from the job market is not required.<8> Nor is there any support in the regulations for Rockwell's claim that quantitative evidence about the job market is required, or that this Court's decisions in DePaoli, Cochrum, and Best were decided under an "exception" in the regulations (supposedly in 29 C.F.R. § 1630.2(j)(2)) that creates a different evidentiary burden for individuals with "severe" impairments. See Rockwell Brief at 19-20 (suggesting this interpretation of the Commission's regulations). Instead, the regulation that defines the term "substantially limits" with respect to the major life activity of working expressly states that factors such as the geographical area and the number and types of jobs within that area "may be considered." 29 C.F.R. § 1630.2(j)(3)(ii) (emphasis added). Similarly, the Commission's Interpretive Guidance (which Rockwell ignores) explains that "[t]he terms 'number and types of jobs' and 'number and types of other jobs,' as used in the factors discussed above, are not intended to require an onerous evidentiary showing," as it is sufficient to present evidence that indicates "the approximate number of jobs (e.g., 'few,' 'many,' 'most') from which an individual would be excluded because of an impairment." 29 C.F.R. Pt. 1630, App. § 1630.2(j). Finally, contrary to Rockwell's suggestion in its brief at 19-20, nothing in 29 C.F.R. § 1630.2(j)(2) creates a separate standard for "severe" impairments, as section 1630.2(j)(2) simply states that factors like the nature and severity of an impairment, its duration and expected long term impact should be considered when assessing whether an individual is substantially limited in a major life activity. See also DePaoli, 140 F.3d at 672-73 (not mentioning an exception creating a different standard of proof for "severe impairments); Best, 107 F.3d at 548 (same); Cochrum, 102 F.3d at 911 (same). Accordingly, this Court should reject Rockwell's argument that the Commission was required to present quantitative evidence. Turning to the question of whether a reasonable jury could find that Rockwell regarded the claimants as disabled, the answer is clearly yes. Rockwell regarded the claimants as substantially limited in working when it refused to hire them to work in seven different entry level positions, notwithstanding the different tools, skills and physical activity required for the various job openings. See EEOC Brief at 24, 26. Specifically, as perceived by Rockwell, the claimants could not perform jobs that required them to: (1) handle as few as 30 parts during an eight-hour shift, with each part weighing as little as half a pound; (2) use any kind of "vibratory" power tool; or (3) engage in "frequent" repetitive motion. See EEOC Brief at 8 n.7, 24, 26. See also Rockwell Brief at 16 n.3 (admitting that a 33 percent repetition rate is "frequent"). Based on this evidence alone, a reasonable jury could find that Rockwell regarded the claimants as significantly restricted in their ability to perform either a class of jobs (e.g., production or assembly line jobs) or broad range of jobs (e.g., jobs in manufacturing or construction), and therefore regarded them as disabled.<9> See EEOC Brief at 25-27. See also Wellington, 187 F.3d at 1155 (evidence that plaintiff was restricted from performing work involving metal fabrication, welding, heavy activities, carpentry, or the use of a variety of tools to do maintenance and repairs was sufficient for jury to find he was substantially limited in working). Smith's evidence supports the conclusion that Rockwell regarded the claimants as disabled. As Smith's evidence indicates, the claimants, as perceived by Rockwell, could not perform any job requiring a 12 percent or greater rate of repetitive motion, or any job requiring more than 500 upper extremity motions per hour. See EEOC Brief at 27-29. This evidence, coupled with Smith's testimony that other jobs (such as stocking shelves at a department store like J.C. Penney or working as a checkout clerk in a grocery store) would require an equal or greater rate of repetitive motion (see EEOC Brief at 27-28), underscores the fact that Rockwell regarded the claimants as significantly restricted in their ability to perform either a class or broad range of jobs. Presented with these arguments, Rockwell makes virtually no attempt to respond or to defend its hiring practices. See generally Rockwell Brief at 17-24. Because of Rockwell's failure in this regard, Rockwell waived any arguments it might have asserted in defense of its nerve conduction testing policy, save for its suggestion (see Rockwell Brief at 24) that it only regarded the claimants as unable to perform four jobs. See Mraovic v. Elgin, Joliet & Eastern Ry., 897 F.2d 268, 272 (7th Cir. 1990) (issues not developed by argument or supported by citation are waived on appeal). Rockwell's cursory argument about its perceptions fails, however, because Rockwell ignores the fact that the claimants, as perceived when Rockwell refused to hire them in seven (not four)<10> different jobs, would have been significantly restricted in their ability to perform either a class or broad range of jobs. See supra p. 14 (as perceived, the claimants would have been significantly restricted in their ability to perform production or assembly line jobs, as well as jobs in manufacturing and construction). Because a reasonable jury presented with Rockwell's perceptions could find that Rockwell regarded the claimants as substantially limited in working, this Court should reverse the district court's decision to grant Rockwell's motion for summary judgment on that ground. B. Because a reasonable jury also could find in favor of the Commission on the remaining elements of its claim that Rockwell discriminated against the claimants in violation of the ADA, this Court must reverse the district court's decision to enter judgment in favor of the defendants-appellees and remand this case for further proceedings In the final portion of its opening brief, the Commission argued that, if this Court agrees that a reasonable jury could find that Rockwell regarded the claimants as disabled, this Court must remand because a reasonable jury could find in favor of the Commission on each of the remaining elements of its ADA claims. See EEOC Brief at 30. In response, Rockwell says nothing to address the Commission's argument that there is no alternative basis in the record for affirming the district court's decision. Instead, Rockwell reiterates its claim (refuted in section II(A), above) that it did not regard the claimants as disabled, and identifies arguments that it intends to make at trial if this Court reverses the district court's decision. See Rockwell Brief at 25 & n.5. Rockwell therefore concedes that the Commission is correct in stating that a remand is required if this Court agrees that there is a triable issue of fact on whether Rockwell regarded the claimants as disabled, because nothing in Rockwell's response directs this Court to an alternative ground for affirming the district court's decision. ARGUMENT AS CROSS-APPELLEE Statement of the Issue Whether the district court correctly held that Cambridge is the successor to Rockwell, where each of the relevant factors indicates that successor liability is appropriate. Statement of Facts<11> On April 28, 1994, Rockwell entered into a sale agreement with Cambridge.<12> CA3-4 ¶¶ 1, 3. Under the agreement, Cambridge purchased Rockwell's plastics products business, which included Rockwell's facility in Centralia, Illinois. CA3 ¶ 1. The sales agreement specifically addressed the charges of discrimination that were pending at the time of the sale, stating that Rockwell would indemnify Cambridge against liability for those disputes, but adding that "the Buyer [Cambridge] shall offer reinstatement with back seniority . . . if such a remedy is granted to the [EEOC] in an appropriate proceeding" or in a settlement. CA4-5 ¶¶ 5, 8. See also CA6 ¶¶ 15-16 (explaining that Cambridge had "sufficient notice of the charges of discrimination pending against Rockwell with the EEOC," including the charges that asserted ADA claims). After the sale, Cambridge operated the Centralia facility in virtually the same way as Rockwell, manufacturing the same automobile parts, using the same workforce and supervisory personnel, and assuming Rockwell's responsibilities under the collective bargaining agreement. CA6-7 ¶¶ 17, 19-21, 25. Cambridge also used substantially the same tools and production methods as Rockwell, and retained the same job classifications (e.g., assembler, trimmer, finisher, final finisher and molder). CA7-8 ¶¶ 26-29. Thus, Cambridge's operation of the Centralia facility "was virtually identical to that of its predecessor Rockwell." CA8 ¶ 30. District Court Decision On February 25, 1999, the district court granted the Commission's motion for partial summary judgment on Cambridge's status as Rockwell's successor. CA 1-2. The district court first held that the doctrine of successor liability applies in ADA cases.<13> CA2. The district court then explained that the Commission's claim of successor liability depended on: (1) whether Cambridge had notice of the claims against Rockwell before it purchased the Centralia facility; (2) whether there was sufficient continuity in the business operations of the facility before and after the purchase; and (3) whether Rockwell is able to provide the relief sought by the Commission. Id. (citing Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1236 (7th Cir. 1986)). Applying this standard, the district court recognized that "it is undisputed that Cambridge had prior notice of the claim and that there is sufficient continuity in the business operations" of the facility. CA2. The court then rejected Cambridge's argument that successor liability should not apply because Rockwell could provide full monetary relief, reasoning that because the Commission seeks hiring and retroactive seniority, a type of relief that only Cambridge can provide in Southern Illinois, Rockwell is not able to provide all of the relief requested. See id. Accordingly, the district court held that successor liability was appropriate. Id. Argument THIS COURT SHOULD AFFIRM THE DISTRICT COURT'S RULING THAT CAMBRIDGE IS ROCKWELL'S SUCCESSOR AND MAY BE HELD LIABLE FOR ROCKWELL'S VIOLATIONS OF THE ADA AT THE CENTRALIA FACILITY In its cross-appeal, Cambridge contests the district court's ruling that Cambridge is Rockwell's successor, arguing that, although several factors weigh in favor of successor liability, the district court erred when it determined that Rockwell is not able to provide complete relief for the Commission's ADA claims. As the analysis below will demonstrate, Cambridge provides this Court with no basis for reversing the district court's ruling on successor liability, let alone ruling for Cambridge as a matter of law on that issue, as Cambridge requests. See Cambridge Brief at 14. The doctrine of successor liability plays an important and well-established role in the employment discrimination context. "The successor doctrine was designed to grant remedial relief -- i.e., backpay, reinstatement or seniority -- to an employee who, solely because of a change in ownership, is unable to obtain similar relief from the predecessor." Musikiwamba v. ESSI, Inc., 760 F.2d 740, 749 (7th Cir. 1985). See also Wheeler, 794 F.2d at 1236 (the doctrine of successor liability applies in the employment discrimination context because of "the overriding congressional policy against unfair employment practices," "the helplessness of the victim to protect his rights when ownership of the business changes," and "the ability of the successor to provide relief at a minimum cost"). As the Commission argued and the district court agreed, successor liability is appropriate here because if the Commission prevails, Cambridge, rather than Rockwell, has the capacity to make the claimants "whole" by hiring them in the Centralia, Illinois facility with retroactive seniority. See CA2. Cambridge contests the application of successor liability based on a theory about reinstatement (or, as here, instatement) that is not supported by the evidentiary record or relevant case law. In its brief at pages 7-8, Cambridge acknowledges that this Court has identified three factors to be considered when assessing whether successor liability should apply: "(1) whether the successor had prior notice of the claim against the predecessor; (2) whether the predecessor is able, or was able prior to the purchase, to provide the relief requested; and (3) whether there has been a sufficient continuity in the business operations of the predecessor and successor." Wheeler, 794 F.2d at 1236. But see EEOC v. G-K-G, Inc., 39 F.3d 740, 747-48 (7th Cir. 1994) (stating that only two factors must be considered: whether the successor had notice and whether there has been substantial continuity in the operation of the business). Cambridge concedes that it had prior notice of the Commission's ADA claims against Rockwell, and also concedes that there was sufficient continuity in the business operations of Rockwell and Cambridge at the Centralia facility. See Cambridge Brief at 9. Thus, Cambridge stakes its entire argument on the flawed and unsupported proposition that Rockwell is able to provide complete relief if the Commission prevails in this action. This Court should reject Cambridge's argument. Initially, this Court should not overlook the significance of Cambridge's concessions. Cambridge concedes that it was aware of the ADA claims against Rockwell when it purchased the Centralia facility. See Cambridge Brief at 9. Because of that awareness, Cambridge cannot seek refuge in cases like Wheeler, 794 F.2d at 1236-37, where this Court held that successor liability should not apply, largely because the buyer had no knowledge of the plaintiff's Title VII claim when it purchased the original employer's assets. Further, Cambridge cannot claim to be surprised by the possibility of being liable as a successor. Indeed, the sale agreement between Rockwell and Cambridge includes an indemnification clause and expressly provides that Cambridge will be responsible for "reinstating" the claimants with retroactive seniority should the Commission prevail. See supra pp. 20-21. Equally compelling is Cambridge's concession that there has been sufficient continuity in the business operations of Rockwell and Cambridge at the Centralia facility. See Cambridge Brief at 9. In conceding this point, Cambridge admits that virtually all of the normal indicia of continuity are present, including the fact that Cambridge and Rockwell used the same plant; used substantially the same work force and supervisory personnel; maintained the same jobs, in substantially the same working conditions; used the same machinery and methods of production; and manufactured the same products. See supra pp. 18-19. See also G-K-G, 39 F.3d at 748 (sufficient continuity present where, after the purchase, the buyer retained most of seller's personnel and did not institute major changes to the business until after a full year); Wheeler, 794 F.2d at 1236 n.7 (listing the indicia of continuity). Faced with the impact of its concessions, Cambridge suggests that its concession on continuity is counterbalanced by the fact that Rockwell and Cambridge are different owners. See Cambridge Brief at 9. There is some support in Wheeler, 794 F.2d at 1236-37, for the proposition that different ownership is relevant to (but certainly not dispositive of) the appropriateness of successor liability. However, in other decisions decided both before and after Wheeler, this Court did not place any weight on whether the owners are distinct, instead focusing only on the three factors identified above on page 21. See, e.g., Upholsterers' Int'l Union Pension Fund v. Artistic Furniture of Pontiac, 920 F.2d 1323, 1325, 1329-30 (7th Cir. 1990) (ERISA case with different owners, but no discussion of that fact in court's analysis of successor liability); Musikiwamba, 760 F.2d at 743-44, 750-53 (same, under 42 U.S.C. § 1981). Consistent with Artistic Furniture and Musikiwamba, this Court should give little or no weight to the fact that Rockwell and Cambridge are different owners, particularly given the clear indicia of sufficient continuity in the business operations of the two companies at the Centralia facility. In any event, there is no merit to Cambridge's argument that successor liability should not apply because Rockwell supposedly is able to provide complete relief to the claimants if the Commission prevails in this case. In its brief, Cambridge asks this Court to focus almost exclusively on the question of whether Rockwell is able to provide the relief sought by the Commission. See Cambridge Brief at 7-8.<14> Addressing the district court's holding that Rockwell could not provide complete relief because it could not hire the claimants or provide retroactive seniority at the Centralia facility, Cambridge argues that the district court erred because Rockwell may make the claimants whole by hiring them at one of its other worldwide locations. See Cambridge Brief at 10. Cambridge's argument fails because there is simply no support, either in the case law or the evidentiary record, for the proposition that the claimants would be made whole if hired by Rockwell in an unspecified, worldwide location. The district court rejected Cambridge's argument because "a prevailing party in an employment discrimination case should not have to relocate to receive the employment to which he/she was originally entitled, especially when the plant to which he/she had originally applied remains in operation." CA2 (citing NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1314, 1319 (D.C. Cir. 1972)). Cf. Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982) (explaining, in the context of mitigation of damages under Title VII, that an employee does not have to go into another line of work, accept a demotion, or take a demeaning position). Cambridge points to nothing that undermines the district court's reasoning, as none of the cases Cambridge cites stands for the proposition that, as a matter of law, an employer can satisfy its duty to instate (or reinstate) a victim of discrimination by offering employment in a location far away from the individual's home. See Cambridge Brief at 10-11 (citing Brown v. Evening News Ass'n, 473 F. Supp. 1242, 1247 (E.D. Mich. 1979) (employer, if required to offer reinstatement, could satisfy its duty by offering plaintiff a choice of jobs, one of which was in his home area of Detroit); Gaddy v. Abex Corp., 884 F.2d 312, 319 (7th Cir. 1989) (stating that employer failed to demonstrate that reinstatement was not possible due to lack of comparable jobs); Real v. Continental Group, Inc., 627 F. Supp. 434, 446 (N.D. Cal. 1986) (affirming a jury verdict, but not holding as a matter of law, that reinstatement offer in another location was made in good faith)). Further, because there is no evidence in the record that establishes where Rockwell's plants are located, there is no validity to Cambridge's claim that the district court should have held that it would be reasonable for Rockwell to offer the claimants employment at one of Rockwell's "64 facilities worldwide." Cambridge Brief at 11. The district court therefore reached the only reasonable conclusion -- that, should the Commission prevail in this action, Rockwell will not be able to provide adequate hiring and retroactive seniority to the claimants. Perhaps recognizing the correctness of the district court's conclusion in this regard, Cambridge argues that the district court could require Rockwell to pay the claimants front pay as an alternative to instatement. See Cambridge Brief at 12. Cambridge, however, waived this argument when it failed to present it to the district court. See Trustmark Life Ins., 207 F.3d at 881 (arguments not presented to the district court are waived). In addition, Cambridge's argument fails because, in suggesting that Rockwell could pay an award of front pay, Cambridge asks this Court to overlook the fact that "reinstatement is the preferred remedy for invidious employment discrimination." Knapp v. Eagle Prop. Mgmt. Corp., 54 F.3d 1272, 1279 (7th Cir. 1995). Specifically, while it is true that front pay may be awarded in lieu of instatement where instatement is "unavailable," (see, e.g., Williams v. Pharmacia, Inc., 137 F.3d 944, 951 (7th Cir. 1998)), Cambridge does not point to any evidence that supports its claim that it cannot instate the claimants at the Centralia facility. See Cambridge Brief at 13. Further, to the extent that Cambridge makes the unsupported claim that it would be unfair to require it to hire the claimants with retroactive seniority, that claim is undermined by the fact that Cambridge agreed to provide such relief when it purchased the Centralia facility. See supra p. 18 (sale agreement provision stating that Cambridge will provide "reinstatement with back seniority" if the Commission prevails on the claims underlying this action).<15> Given these circumstances, the district court correctly held that Cambridge should be responsible for hiring the claimants with retroactive seniority at the Centralia facility if the Commission prevails in this action. In sum, all three of the relevant factors point toward the application of successor liability in this case. See Wheeler, 794 F.2d at 1236 (listing the three factors for applying successor liability in the employment discrimination context). Cambridge concedes two of the factors, as it admits that it had prior notice of the Commission's ADA claims against Rockwell when it bought the Centralia facility, and concedes that there is sufficient continuity in the business operations of Rockwell and Cambridge at that facility. As for the remaining factor, concerning whether Rockwell can provide complete relief, the preceding analysis demonstrates that only Cambridge can provide the hiring and retroactive seniority necessary to make the claimants whole. Finally, even if this Court believes that there are disputed material issues of fact about whether Cambridge should be liable as Rockwell's successor, it must affirm the district court's decision. In its cross-appeal, Cambridge asks this Court to hold, as a matter of law, that it is not liable as Rockwell's successor. See Cambridge Brief at 14. Cambridge does not ask this Court to remand the issue to the district court to allow a trier of fact to determine whether successor liability is appropriate, and thus has waived that remedy. See Mraovic, 897 F.2d at 272 (issues not developed by argument are waived on appeal). Because it is clear that Cambridge is not entitled to its requested remedy of judgment as a matter of law on the issue of successor liability (see supra pp. 20-27), this Court must affirm the district court's decision to grant the Commission's motion for partial summary judgment on Cambridge's liability as Rockwell's successor. CONCLUSION For the foregoing reasons, this Court should reverse the district court's decision to enter judgment for the defendants, reject Cambridge's arguments in its cross-appeal, and remand for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 August 16, 2000 (202) 663-4728 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). This brief contains 6,993 words. GEOFFREY L.J. CARTERCERTIFICATE OF SERVICE I, Geoffrey L.J. Carter, hereby certify that on this 16th day of August, 2000, two copies of the attached brief, and one copy of the attached brief on digital media, were sent by first class mail, postage prepaid, to each of 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 GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 August 16, 2000 (202) 663-4728 1 As the Commission noted in its opening brief at p. 3 n.2, the Commission's arguments relating to the district court's decision to grant Rockwell's motion for summary judgment apply to each of the defendants-appellees. 2 Cambridge adopted Rockwell's arguments in response to the Commission's opening brief as appellant. See Cambridge Brief at 1. The Unions did not file a response brief. 3 The Commission noted in its opening brief at page 18 that, in the district court's view, the motion was untimely and Smith's evidence was irrelevant to the issues presented in Rockwell's motion for summary judgment. Despite this clear statement, Rockwell's brief at page 10 inexplicably states that the Commission asserted that the district court "primarily" refused to consider Smith's evidence on relevancy grounds. 4 The cases Rockwell cites are also distinguishable, because in each case, the party sought to supplement its summary judgment materials after the court ruled on the summary judgment motion. See Wallace v. Tilley, 41 F.3d 296, 302 (7th Cir. 1994); King v. Cooke, 26 F.3d 720, 725 (7th Cir. 1994). Here, the Commission filed its motion to supplement the summary judgment record one month before the June 22, 1999 oral argument on Rockwell's motion, and nearly three months before the district court ruled on the motion. 5 Rockwell's use of the term "vocational" in its brief causes confusion, because any evidence about an individual's ability to work, regardless of whether the evidence is quantitative or qualitative, can be considered "vocational." As the Commission understands Rockwell's argument, Rockwell contends that the Commission was required to present quantitative evidence about the claimants' ability to work. Accordingly, in the interest of clarity, the Commission uses the term "quantitative" instead of "vocational," as used in Rockwell's brief. 6 Perhaps sensing the relevance and probative value of Smith's evidence, Rockwell asserts that the Commission is limited to relying on Rockwell's admission that it did not believe the claimants could perform jobs requiring "frequent or greater repetition or the use of vibratory power tools." Rockwell Brief at 16. While Rockwell's admission is a useful piece of evidence about its perceptions, nothing (not even the language in a text used by one of the Commission's experts, see Rockwell Brief at 16 n.3) precludes the Commission from using other evidence that further outlines Rockwell's beliefs about the claimants' physical limitations. Indeed, Smith's evidence establishes that when Rockwell says "frequent repetitive motion," Rockwell includes jobs that only require a 12 percent rate of upper extremity repetitive motion. As for Rockwell's claim that the Commission has waived this argument (see Rockwell Brief at 16 n.3), Rockwell asks this Court to ignore the obvious fact that the Commission presented Smith's evidence about Rockwell's perceptions to the district court when the Commission sought to supplement the summary judgment record. The district court simply abused its discretion when it denied the Commission's motion. Finally, this Court should disregard Rockwell's claim that the Commission's expert believed Smith's evidence to be irrelevant, as the record contains no support for Rockwell's assertion. See Rockwell Brief at 16-17 (citing R.237-1 at 74). 7 Smith's testimony about the rate of repetitive motion in other jobs (see EEOC Brief at 10-11) is also relevant to the question of whether Rockwell regarded the claimants as substantially limited in working, because it addresses the types of jobs that the claimants, as perceived, would be unable to perform. 8 At least two other circuits have indicated that an individual may establish a substantial limitation in working without presenting quantitative evidence. See Wellington v. Lyon County Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999) (plaintiff's and doctor's statements about plaintiff's inability to perform work involving welding, heavy activities, carpentry or maintenance using various tools were enough to demonstrate issue of fact on whether plaintiff was substantially limited in working, despite absence of quantitative evidence about plaintiff's preclusion from the job market); Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 12 (1st Cir. 1999) (jury reasonably found that plaintiff was substantially limited in working where doctor testified that her limitations would "probably preclude a lot of physical jobs," and that there were "a lot of physical jobs" in plaintiff's home state of Maine). To the extent that Rockwell refers this Court to cases that discuss "vocational data," (see Rockwell Brief at 19), none of the cases stand for the proposition that an individual is required to use quantitative evidence to show a substantial limitation in working. See, e.g., Muller v. Costello, 187 F.3d 298, 312-13 (2d Cir. 1999) (no suggestion by court that quantitative evidence required); Doren v. Battle Creek Health Sys., 187 F.3d 595, 597-98 (6th Cir. 1999) (same). 9 To put Rockwell's perception of the claimants in perspective, consider the everyday items that weigh half a pound or more: (1) almost any loaf of bread; (2) two sticks of butter; and (3) a single serving cup of Dannon yogurt. It is obvious that a reasonable jury could find that an individual unable to handle items of such a small weight would be substantially limited in working. 10 Rockwell excluded the claimants from the positions of trimmer, finisher, final finisher, assembler, molder, multi-operator and RTM operator. See EEOC Brief at 7. 11 The following facts are drawn from the Commission's Rule 12(M) Statement of Material Facts in Support of its Motion for Summary Judgment (R.145), which is included in Cambridge's Appendix ("CA"). See CA3-8. 12 Rockwell actually entered into this agreement with "Plastics Acquisition Corporation" ("Plastics"). CA3 ¶ 1. Cambridge is the successor in interest to Plastics. CA4 ¶ 4. 13 Cambridge does not challenge this ruling on appeal. See Cambridge Brief at 5 & n.4. 14 As noted above, there is some question about whether this factor should be considered when assessing whether successor liability is appropriate. See G-K-G, 39 F.3d at 747-48 (stating that only two factors must be considered). 15 Contrary to Cambridge's claim on page 13 of its brief, Cambridge is not merely an "innocent" successor. After buying the Centralia facility, Cambridge continued Rockwell's nerve conduction testing and hiring practices, leading to a separate ADA action against Cambridge that is currently pending in the district court (Case No. 98-CV-4413 (N.D. Ill.)).