Summerville v. Trans World Airlines 99-2992 September 13, 2000 Thomas Gans, Clerk United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton Court House Room 24.329 111 South 10th Street St. Louis, MO 63102 Re: Summerville v. Trans World Airlines, No. 99-2992 (8th Cir.) Dear Mr. Gans: Enclosed please find for filing 21 copies of the Commission's Brief in Support of Petition for Rehearing and Suggestion for Rehearing En Banc, along with my notice of appearance, in the above-captioned case. Thank you for your assistance in this matter. Sincerely, Barbara L. Sloan Attorney cc: Susan M. Andorfer Larry M. Bauer IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 99-2992 KENNETH SUMMERVILLE, Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant. On Appeal from the United States District Court for the Eastern District of Missouri BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel JOHN F. SUHRE BARBARA L. SLOAN Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 STATEMENT OF COUNSEL 1. I express a belief, based on a reasoned and studied professional judgment, that the panel decision is inconsistent with the regulations implementing the Americans with Disabilities Act as well as with the following decision of the United States Court of Appeals for the Eighth Circuit, and that consideration by the full Court is necessary to secure and maintain uniformity of decisions in this Court: Benson v. Northwest Airlines, 62 F.3d 1108 (8th Cir. 1995). 2. I express a belief, based on a reasoned and studied professional judgment, that this appeal involves the following questions of exceptional importance: Whether the panel erred in overturning a jury verdict, which the district court held was "amply" supported by the evidence, and holding that, as a matter of law, particular job tasks are "essential functions" of a job, within the meaning of the Americans with Disabilities Act, solely because the employer "views" those tasks as essential and they are listed among many other tasks in the job description in the collective bargaining agreement. Barbara L. Sloan Attorney Equal Employment Opportunity Commission TABLE OF CONTENTS Page(s) STATEMENT OF COUNSEL i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUE 2 BACKGROUND 1. Statement of Facts 2 2. District Court's Decision 4 3. Panel Decision 5 ARGUMENT THE PANEL IMPROPERLY REDUCED THE MULTI-FACTOR, TOTALITY-OF-THE-CIRCUMSTANCES TEST FOR DETERMINING "ESSENTIAL FUNCTIONS" TO A TWO-FACTOR LITMUS TEST THAT IS CONTRARY BOTH TO THE ADA REGULATIONS AND GUIDANCE AND TO CASELAW FROM THIS AND OTHER CIRCUITS. 7 CONCLUSION 17 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM A: PANEL OPINION ADDENDUM B: DISTRICT COURT'S MEMORANDUM AND ORDER ADDENDUM C: SYSTEM BOARD OF ADJUSTMENT DECISION TABLE OF AUTHORITIES Cases Page(s) Alexander v. Gardner-Denver, 415 U.S. 36 (1974) 13, 14 Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981) 14 Bell v. Conopco, 186 F.3d 1099 (8th Cir. 1999) 13 Benson v. Northwest Airlines, 62 F.3d 1108 (8th Cir. 1995) i, 2, 8-9, 10, 12 Deane v. Pocono Medical Center, 142 F.3d 138 (3d Cir. 1998) 9 International Paper Co. v. UPIU, 215 F.3d 815 (8th Cir. 2000) 13 McDonald v. City of West Branch, 466 U.S. 284 (1984) 13 Moritz v. Frontier Airlines, 147 F.3d 784 (8th Cir. 1998) 6-7, 11-12 Reeves v. Sanderson Plumbing Products, 120 S. Ct. 2097 (2000) 12 Stone v. City of Mt. Vernon, 118 F.3d 92 (2d Cir. 1997) 9 Ward v. Massachusetts Health Research Institute, 209 F.3d 29 (1st Cir. 2000) 8-9 Wright v. Universal Maritime Service Corp., 119 S. Ct. 391 (1998) 14 Statutes The Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. passim 42 U.S.C. § 12111(8) 1, 14 Regulations and Guidelines 29 C.F.R. § 1630.2(n) 2, 14 29 C.F.R. § 1630.2(n)(1) 8 29 C.F.R. § 1630.2(n)(2)-(3) 8 29 C.F.R. Pt. 1630, App. § 1630.2(n) 2, 8, 15 Legislative History H.R. Rep. No. 485(II), 101 Cong., 2d Sess. (1990), reprinted at 1990 U.S.C.C.A.N. 303 15 H.R. Rep. No. 485(III), 101st Cong., 2d Sess. (1990), reprinted at 1990 U.S.C.C.A.N. 445 8 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 99-2992 KENNETH SUMMERVILLE, Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant. On Appeal from the United States District Court for the Eastern District of Missouri BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to interpret and enforce Title I of the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA"), and other federal employment discrimination laws. This case presents an issue of exceptional importance concerning coverage under the ADA. That statute protects disabled individuals who, with or without reasonable accommodation, can perform the "essential functions" of their jobs. See 42 U.S.C. § 12111(8). In deciding whether a particular task is an "essential function," the panel here held that, as a matter of law, two factors -- the employer's "views" and the inclusion of the task in a comprehensive list of duties in the job description in the collective bargaining agreement -- are dispositive, trumping even evidence that non-disabled employees do not actually have to do the task. This ruling cannot be reconciled with either the ADA's implementing regulations and guidance or caselaw from this Circuit and others, all of which provide that the determination must be based on a multi-factor, case-by-case approach. See, e.g., 29 C.F.R. § 1630.2(n) & App.; Benson v. Northwest Airlines, 62 F.3d 1108, 1113-14 (8th Cir. 1995). Further, the ruling improperly narrows the scope of the ADA's protections by excluding disabled individuals from coverage merely because they cannot perform tasks that other employees in fact do not have to do. We therefore offer our views to the Court. STATEMENT OF THE ISSUE Whether particular job tasks should be considered "essential functions," within the meaning of the ADA, solely because the employer "views" those tasks as essential and they are included in the comprehensive list of job duties in the job description in the collective bargaining agreement. BACKGROUND 1. Statement of Facts Kenneth Summerville, a TWA employee with over 29 years' seniority, works as an employee in charge ("EIC"), or lead customer service agent ("CSA"), at the company's St. Louis airport hub. District Court's Memorandum and Order ("Mem.") at 5-6 (attached as Addendum B). In March 1994, Summerville was injured in a car accident (Mem. at 9), and was permanently restricted from lifting more than 40 pounds. 8/7/2000 Panel Opinion ("Opinion") at 2 (attached as Addendum A). Despite this restriction, for six months after his accident, Summerville continued working without difficulty, including overtime and holiday shifts. Mem. at 16. In November 1994, however, TWA placed him on permanent limited/light duty, purportedly because his lifting restriction would prevent him from lifting wheelchair passengers into their airplane seats without assistance -- a task the company characterized as an "essential function" of the CSA and EIC positions. Mem. at 14, 16. Summerville was given the job of zone coordinator, a sedentary EIC position requiring him to assign duties to other CSAs and EICs. Id. at 6. At the same time, TWA banned him from working overtime or holidays, citing a "side letter" to the collective bargaining agreement ("CBA") which applies only to employees on temporary limited duty, and from trading shifts with other employees, citing a company policy. Summerville filed a grievance under the CBA challenging these restrictions. The System Board of Adjustment ("Board") denied the grievance, finding that TWA's decision to apply the bans to Summerville did not violate the CBA. The Board expressly found that the restrictions, though "not unreasonable," were not contained in the CBA or "side letter." Board Decision at 6-8 (attached as Addendum C). The Board reasoned, however, that (1) the agreement includes lifting baggage and wheelchair passengers among the duties of a CSA, (2) on overtime and holiday shifts or day-trading, Summerville could not work only as a zone coordinator, but must be available to perform "any" of the duties of an EIC or CSA, and (3) it would not be "fair" if he could not perform all of the duties he might possibly be assigned on these shifts. Id. Summerville then brought suit, alleging inter alia that he was denied these opportunities because of his disability, in violation of the ADA. Mem. at 1. The suit was tried to a jury and, on November 3, 1998, the jury entered a verdict in plaintiff's favor. Id. TWA moved for judgment as a matter of law, arguing inter alia that any reasonable jury would find that "lifting" as described by the company -- that is, in excess of forty pounds, without assistance -- was an essential function of the CSA/EIC position, especially in light of the Board's decision. 2. District Court's Decision The district court upheld the jury verdict. Id. at 19. Citing the ADA regulations, the court recognized that whether a particular job task is an "essential function" is a question of fact, which should be analyzed using a multi-factor, case-by-case approach. Id. at 15-16 (adding that TWA "admits" this is normally a jury question). Ticking off the evidence of each factor, the court noted that Summerville's evidence showed that only minimal time was spent doing heavy lifting. Mem. at 15 (citing testimony that lifting constitutes only about 5% of a CSA's job). The court also noted that many CSAs were permitted to work overtime and holidays and trade shifts even though they were physically incapable of lifting more than forty pounds without assistance, adding that nothing suggested that "Plaintiff was in any way more limited" than those employees were. Id. As for lifting wheelchair passengers into their seats, the court noted, that task was normally performed by outside contractors. Moreover, and significantly, the court continued, when TWA employees are called upon to do that task or any other task involving heavy lifting, they "seek assistance from other TWA employees" and, at least in the St. Louis hub, such assistance is always available. Id. at 16. Lastly, the court noted, after his injury, Plaintiff "actually performed his EIC duties for several months" without difficulty before being "relegated" to light duty. Id. at 16-17. Consequently, the district court held, the jury reasonably could and did find that Plaintiff "could perform all essential functions" and, so, was entitled to the benefits of day-trading, overtime and holiday work. Id. at 14 n.5 & 17. 3. Panel Decision A panel of this Court reversed, entering judgment as a matter of law for TWA on the ADA claim. In reaching this decision, the panel first concluded that, under traditional principles of issue preclusion, the Board's decision "precludes Summerville from arguing about the job requirements for holiday, overtime and day-trading shifts." Opinion at 3. Thus, the panel concluded, Summerville could not argue that "lifting is not required" of CSAs and EICs, and that on overtime, holiday, and day-trading shifts, he need not be available to work as a CSA or EIC. Id. at 4. The panel then considered whether TWA was entitled to judgment as a matter of law on the question whether Summerville can perform the essential functions of his "overtime, holiday, and day-trading employment." Id. at 4. The panel acknowledged that the factors outlined in the ADA's regulations are the proper guide to establish whether a function is essential. Id. Nevertheless, the panel concluded, notwithstanding all the contrary evidence, that "lifting" as described by TWA was an essential function of the EIC and CSA positions. The panel based its ruling solely on TWA's "views" and the fact that the CBA, as interpreted by the Board, includes lifting baggage and wheelchair passengers among the duties of the two positions. Id. at 4-5. The panel opined that the arguments in this case "closely parallel" those in Moritz v. Frontier Airlines, 147 F.3d 784 (8th Cir. 1998). In Moritz, the defendant argued that "the boarding and deplaning of elderly and disabled passengers" was an essential function of a plaintiff/gate-agent's job in the company's Bismarck, North Dakota, facility, even though she did it only a few minutes each week. The Moritz Court agreed that the function was essential, largely because the defendant was a start-up airline with limited staff at the relevant facility. 147 F.3d at 787. The panel here concluded that this case is "indistinguishable" from Moritz because, the panel found, TWA faces "similar short-staffing problems" and, so, had bargained for a CBA provision preventing employees on limited duty from working overtime and holidays. Opinion at 5. Thus, the panel held that, "as a matter of law," lifting as described by TWA is an "essential function of Summerville's overtime, holiday, and day-trading employment." Id. ARGUMENT THE PANEL IMPROPERLY REDUCED THE MULTI-FACTOR, TOTALITY-OF-THE- CIRCUMSTANCES TEST FOR DETERMINING "ESSENTIAL FUNCTIONS" TO A TWO-FACTOR LITMUS TEST THAT IS CONTRARY BOTH TO THE ADA REGULATIONS AND GUIDANCE AND TO CASELAW FROM THIS AND OTHER CIRCUITS. 1. The panel erred in holding that -- contrary to the jury verdict which, according to the district court, was "amply" supported by the evidence -- as a matter of law, unassisted lifting of heavy baggage and wheelchair passengers is an "essential function" of the EIC position at TWA's St. Louis airport hub.<1> According to the panel, where, as here, the employer "views" a particular task as an essential function and that task is included in the comprehensive list of duties in the job description in the collective bargaining agreement, those two factors, as a matter of law, are determinative. This is true even if the evidence shows that employees do not actually have to perform the task as the employer asserts. This ruling cannot be reconciled with the ADA's implementing regulations and guidance or with caselaw from this Circuit and others. Under the regulations, the term "essential functions" means the "fundamental job duties of the employment position the [disabled individual] holds or desires." 29 C.F.R. § 1630.2(n)(1). Whether a particular task is essential "is a factual determination that must be made on a case by case basis." 29 C.F.R. Pt. 1630, App. § 1630.2(n). Factors relevant to this determination include "the employer's judgment," a "written description" of the job, the provisions of a collective bargaining agreement, the number of persons available to assist or perform the function, the amount of time actually spent performing the function, the consequences of not requiring the employee to perform the function and the experience of past and current employees in performing the function. 29 C.F.R. § 1630.2(n)(2)-(3). No single factor is dispositive, however, and "all relevant evidence should be considered." 29 C.F.R. Pt. 1630, App. § 1630.2(n). In fact, Congress expressly rejected an amendment to the statute that would have created a presumption in favor of the employer's determination of essential functions. H.R. Rep. No. 485(III), 101st Cong., 2d Sess. 33 (1990). In reliance on the regulations and guidance, courts including this one have consistently applied a multi-factor, case-by-case approach in determining whether a particular task is an essential function. See Benson, 62 F.3d at 1113-14 (8th Cir.); see also Ward v. Massachusetts Health Research Inst., 209 F.3d 29, 34 (1st Cir. 2000); Deane v. Pocono Med. Ctr, 142 F.3d 138, 148 (3d Cir. 1998); Stone v. City of Mt. Vernon, 118 F.3d 92, 99-100 (2d Cir. 1997). These courts have recognized that the employer's view, though relevant, is only one of many factors to be considered. See, e.g., Ward, 209 F.3d at 34 (employer's "view" is "only one factor in the analysis"); Stone, 118 F.3d at 99-100 (employer's judgment is only one of many relevant categories of evidence); see also Deane, 142 F.3d at 148 ("declin[ing] to give conclusive effect" to job description and employer's judgment of essential functions). Indeed, this Court has suggested that a key inquiry should be whether the employer actually requires employees in the position to perform the function asserted to be essential. See Benson, 62 F.3d at 1113-14 (adding that determination should not be based only on statements in job description but should reflect actual functioning and circumstances of particular enterprise); see also Stone, 118 F.3d at 99-100 (that incumbent employees did not actually do task raised factual issue whether it was essential). In this case, the district court correctly applied this multi-factor, case-by-case approach and concluded that Summerville presented "ample" evidence to support the jury finding that lifting heavy baggage and wheelchair passengers without assistance was not an essential function of a CSA/EIC, at least in the St. Louis hub. Mem. at 14 n.5, 15-17. Specifically, the court noted evidence that other CSA/EICs in the hub cannot lift more than 40 pounds without assistance; that employees there spend very little time doing heavy lifting; that, when it is necessary, other employees are always available to assist; and that, before TWA decided to place Summerville on limited duty, he had no difficulty doing overtime or holiday shifts. Mem. at 15-16. Accordingly, the court reasonably determined that TWA was not entitled to judgment as a matter of law on the ADA claim. In reversing that decision, the panel paid mere lip service to the uniformly accepted approach, completely disregarding all of Summerville's evidence. Rather, the panel reduced the multi-factor, totality-of-the-circumstances approach to a two-factor litmus test. According to the panel, if the employer views the task as an essential function and it is listed in the collective bargaining agreement, it is essential -- regardless of what the other evidence shows. As noted above, this per se approach conflicts with this Court's decision in Benson. See 62 F.3d at 1113-14 (suggesting that experience of employees on the job is important). It is also inconsistent with caselaw from other circuits. See, e.g., Deane, 142 F.3d at 148 (holding that neither job description nor employer's judgment is conclusive). The regulations and guidance, as well as the legislative history, are likewise to the contrary. There is, in fact, no compelling authority for the panel's approach. 2. To support its decision, the panel relied on two sources -- this Court's decision in Moritz and the System Board's resolution of Summerville's grievance. Neither, however, justifies the result. First, the panel mistakenly assumed that this case is controlled by Moritz, 147 F.3d 874. See Opinion at 5. While superficially similar, however, Moritz differs significantly in both its facts and its legal analysis. The plaintiff in Moritz, one of very few employees at a fledgling airline's Bismarck, North Dakota, facility, was unable to assist passengers entering or leaving the plane, because of her disability. Moritz, 147 F.3d at 785-86 (adding that she even had difficulty walking the length of the jetway). This Court concluded, based on the evidence presented, that this task was an essential function of her job as a gate agent, primarily because the employer was a start-up operation with a limited budget and no other employees could assist with the task. Id. at 787-88. Moritz does not stand for the proposition that the employer's judgment is dispositive, notwithstanding contrary evidence, or that unassisted passenger transfers is, as a matter of law, an essential function of any airline employee's job. Rather, the Court applied the multi-factor, case-by-case approach and based its decision strictly on the specific circumstances of that case. To the extent the Court relied on the employer's judgment, it was because the plaintiff offered no contrary evidence. See 147 F.3d at 788. The panel here acknowledged that Moritz involved a start-up operation whereas Summerville works in TWA's St. Louis hub, where other employees can assist with heavy lifting. The panel found this factual difference insignificant because, in its view, TWA faced "similar staffing problems." Opinion at 5. This factual finding, however, impermissibly invaded the province of the jury. See Reeves v. Sanderson Plumbing Prods., 120 S. Ct. 2097, 2110-11 (2000). The Supreme Court recently reaffirmed that, in ruling on a motion for judgment as a matter or law, the appellate court may not reweigh the evidence, make credibility determinations, or draw inferences in the defendant's favor and must "disregard all evidence favorable [to defendant] that the jury was not required to believe." Id. Since, according to the district court, the evidence "amply" supported the jury verdict, the panel had no business reversing that verdict merely because it would have weighed the evidence differently.<2> Second, while the import of its holding is unclear, the panel apparently accorded undue significance to the System Board's resolution of Summerville's grievance. According to the panel, the Board's decision "precludes Summerville from arguing about the job requirements for holiday, overtime and day-trading shifts" in the collective bargaining agreement. Opinion at 3.<3> This suggests the panel agreed with TWA that, because the Board determined that, consistent with the CBA, Summerville could be "required" to lift baggage and transfer wheelchair passengers on overtime and holiday shifts, these tasks are "essential functions" within the meaning of the ADA.<4> On the contrary, the Board did not purport to determine which of the CSA's many listed duties are "essential functions." Such a determination was neither relevant to the grievance proceeding nor within the Board's particular expertise. See, e.g., International Paper Co. v. UPIU, 215 F.3d 815, 817 (8th Cir. 2000) (arbitrator's decision must "draw its essence from the collective bargaining agreement"); see also Alexander v. Gardner-Denver, 415 U.S. 36, 57 (1974) (typically, arbitrator must follow CBA even if it conflicts with federal law). Rather, the only issue before the Board was whether TWA violated the CBA by barring Summerville from day-trading or from working overtime and holiday shifts. See Board Decision at 2. The Board concluded that, while "no specific contractual provision" covered this situation, the bar was not a violation of the CBA. Id. at 7. The Board reasoned that, under the agreement, EICs like Summerville could be assigned to "any" CSA duties, and these included "lifting baggage and transferring passengers." Id. Accord CBA, Art. 4(f) (stating that CSA's work "shall" include "checking in passengers and baggage" and "may" include "performing passenger boarding functions"). The Board reasoned that it would not be "fair" if Summerville could not perform all the possible duties of any position to which he might be assigned. Board Decision at 7-8. Under the ADA, however, Summerville was not required to prove that he can perform all the possible duties of any position to which he might be assigned. Cf. Wright v. Universal Maritime Serv. Corp., 119 S. Ct. 391, 396 (1998) (claim asserted in ADA action "arises not out of contract, but out of [federal anti-discrimination law], and is distinct from any right conferred by the [CBA]"); accord Gardner-Denver, 415 U.S. at 49-50 (Title VII); Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 737 (1981) (FLSA). Rather, the statute requires only that he be able to perform the "essential functions" of the job. 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(n)("fundamental duties"). In evaluating whether unassisted lifting of heavy baggage and wheelchair passengers was an essential function of Summerville's job, the jury was required to consider all of the evidence. That the job description in the CBA lists these tasks -- among many others -- was just one piece of evidence, and the Board's decision simply interpreted the CBA. The jury reasonably could find, however, that the job description includes tasks which are not "essential functions." The jury could believe that an employer and union would agree to a comprehensive listing of job tasks to preclude non-disabled employees from arguing that they need not perform particular tasks because they are not within the job description. The jury could also conclude that the listing includes tasks which may be essential elsewhere but are marginal in the St. Louis hub, in light of the larger staff. See 29 C.F.R. Pt. 1630, App. § 1630.2(n) (noting that function which may be "marginal" where there is a large staff may be "essential" where there are few employees). The jury could further note that the CBA does not address the possibility of assistance. Thus, the jury reasonably could find that unassisted heavy lifting is not an essential function of Summervile's job and, so, the limitations TWA imposed on Summerville violated the ADA, whether or not that same conduct is permissible under the CBA. 3. Finally, the panel's ruling undermines the policy goals of the ADA. A major purpose of the statute is to enable persons with disabilities to be equal participants in "the economic mainstream." H.R. Rep. No. 485(II) at 22. Accordingly, under the ADA, the fact that persons, because of disability, cannot perform the marginal functions of a job does not justify limiting their employment opportunities, including privileges available to employees without such disabilities. The panel's ruling, however, would permit employers to do just that -- to limit the employment opportunities of persons with disabilities merely because they cannot perform tasks that, by definition, are not "essential" since other employees are not required to do them. The ruling thus denies the benefits of the statute to individuals that Congress intended to protect. We therefore urge this Court to rehear this case, en banc if necessary, and hold, consistent with the district court's decision, that the determination whether Summerville can do the essential functions of the CSA/EIC positions was a classic jury question and, on the record here, the jury's verdict in his favor should be sustained. CONCLUSION For the foregoing reasons, the petition should be granted and the case reheard by the panel or, if necessary, by the Court en banc. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel BARBARA L. SLOAN JOHN F. SUHRE Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE I certify that this brief has been prepared in monospaced (nonproportionally spaced) typeface using Corel Word Perfect 8, Courier 12-point font, and contains 3803 words from the Statement of Interest through the Conclusion. ________________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I certify that two copies of the Equal Employment Opportunity Commission's Brief in Support of Petition for Rehearing and Suggestion for Rehearing En Banc were sent the 13th day of September, 2000, by express mail, postage prepaid, to: Susan M. Andorfer, LTD Dayna F. Deck 4940 Old Collinsville Road, Suite 500 Swansea, IL 62226 Larry M. Bauer Eric A. Todd Stinson, Mag & Fizzell, P.C. 100 South Fourth Street, Suite 700 St. Louis, MO 63102 _________________________________ Barbara L. Sloan ADDENDUM ADDENDUM A PANEL OPINION ADDENDUM B DISTRICT COURT MEMORANDUM AND ORDER ADDENDUM C SYSTEM BOARD OF ADJUSTMENT DECISION 1 The decision states only that "lifting" is an essential function. However, since Summerville can lift up to 40 pounds, the panel necessarily determined that lifting over 40 pounds was essential. Similarly, since the panel disregarded evidence that CSA/EICs typically assisted one another with heavy lifting, the panel necessarily determined that unassisted lifting was essential. 2 The panel also noted that TWA bargained for a CBA provision preventing employees on limited duty from working overtime and holidays. As the System Board expressly determined, however, that provision applies only to employees on temporary limited duty, Board Decision at 7. If TWA intended the provision to extend to employees such as Summerville who are on permanent limited duty, it did not achieve that goal through collective bargaining. 3 The panel assumes, without citation, that the Board's factual findings would be preclusive in this ADA action, if they otherwise met the standards for collateral estoppel. Opinion at 3-4. There is, at a minimum, substantial authority to the contrary. See, e.g., McDonald v. City of West Branch, 466 U.S. 284 (1984) (under § 1983, court should not afford res judicata or collateral estoppel effect to arbitral award); Bell v. Conopco, 186 F.3d 1099, 1102 (8th Cir. 1999) (jury may disregard arbitral decision). We believe, however, that this question, though important, is not clearly presented here because the issues the Board resolved do not overlap in any significant way with those in this appeal. 4 Neither the CBA nor the Board's interpretation of it suggests that other employees have any contractual right, superior to Summerville's, to these overtime and holiday shifts. Cf. Benson, 62 F.3d at 1114 (employer need not violate collectively-bargained seniority rights to accommodate disabled employee).