Equal employment Opportunity Commission v. Woodridge Corp
01-1045
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
_________________________
No. 01-1045
_________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
WOODBRIDGE CORP.,
Defendant-Appellee.
______________________________________________________
On Appeal from the United States District Court
for the Western District of Missouri
______________________________________________________
REPLY BRIEF OF THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
______________________________________________________
GWENDOLYN YOUNG REAMS
Associate General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
JULIE L. GANTZ
Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4718
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
INTRODUCTION 1
ARGUMENT 5
CONCLUSION 19
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
_________________________
No. 01-1045
_________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
WOODBRIDGE CORP.,
Defendant-Appellee.
______________________________________________________
On Appeal from the United States District Court
for the Western District of Missouri
______________________________________________________
REPLY BRIEF OF THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
______________________________________________________
INTRODUCTION
The Commission alleges in this action that Woodbridge Corp. violated
Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §
12101 et seq., by withdrawing offers of employment from a group of
applicants because it believed they had or were likely to develop carpal
tunnel syndrome ("CTS") due to abnormal scores they received on a test
designed to screen for the condition. The district court granted
defendant's motion for summary judgment, holding that the rejected
applicants did not have a disability because Woodbridge did not regard
them as substantially limited in working. The court determined that
there was insufficient evidence that Woodbridge regarded the rejected
applicants as unable to perform jobs other than the particular jobs at
defendant's plant for which they applied.
In our opening brief, we explained why this ruling was erroneous.
We noted that Woodbridge acknowledges that it believed that individuals
who failed the neurometry test had CTS or would contract CTS, and that
it considered applicants with abnormal neurometry results ineligible
for any of the hourly production jobs with the company due to the high
levels of repetitive motion required. EEOC Br. at 20-21. We noted that
the physicians at Occupational Medicine Associates ("OMA"), on whom
Woodbridge relied, advised in general terms that those with abnormal
neurometry scores should not work in jobs requiring repetitive motion.
EEOC Br. at 27. We argued that this evidence would support an inference
that Woodbridge regarded the applicants as unfit for any work requiring
hand and wrist motion comparable to that involved in the Woodbridge
production jobs. EEOC Br. at 28-29.
We then argued that such a perceived limitation would be a "substantial"
limitation on working because, if it were true, it would mean that the
applicants were precluded from a broad range of jobs for which they were
otherwise qualified. In making this argument, we relied on the report
of vocational expert, Sherry Browning ("Browning report"), which found
that a majority of manual labor jobs in the Kansas City area to which the
applicants had access require the same or greater levels of repetitive
hand and wrist motion. EEOC Br. at 9-13, 23-25. Accordingly, we argued,
the evidence would support a finding that the rejected applicants had
a disability within the meaning of the ADA because they were regarded
by Woodbridge as substantially limited in working.
In its brief as appellee Woodbridge offers no meaningful response to
these arguments. Instead of explaining why it is not logical to infer
from the company's actions that it regarded the rejected applicants as
unfit for jobs requiring repetitive motion comparable to that required
in its production jobs, Woodbridge insists that it cannot be found
to have regarded the applicants as substantially limited in working
because its officials steadfastly maintained that they never thought
about other jobs. This Court should reject this "ostrich" defense,
because, as the district court noted, "if courts were to adopt this view
then every employer sued under the ADA would simply argue that they only
regarded the employee as restricted from performing the particular job
for which they were considered," and this would "eviscerate the purpose
behind the 'regarded as' prong of the ADA." See EEOC Br. Addendum at 7
(Order at 7).
Woodbridge also argues that its belief that the applicants are unfit for
the foam production jobs in question does not reflect a perception that
they are substantially limited in working because the Woodbridge jobs
are "very unique." Def. Br. at 28. There is nothing in the record to
suggest that the jobs in question are unique with respect to repetitive
motion. On the contrary, the Browning report - which Woodbridge ignores
in making this argument - concludes, based on a careful examination
of Woodbridge's operations, that there are tens of thousands of jobs
in the Kansas City area demanding similar levels of repetitive motion.
IIC.A.307 (Browning Rpt. at 20).
Notwithstanding defendant's repeated assertions that there is no
evidence that Woodbridge regarded the applicants as substantially
limited in working, the record contains sufficient evidence to support
a finding that the applicants are disabled under the ADA. At best,
defendant's arguments indicate that there are factual questions that
cannot be decided on summary judgment.
We submit this reply to respond to the arguments raised by the defendant
and to refocus the discussion on the issues raised by the Commission's
appeal and the evidence supporting the Commission's arguments.
ARGUMENT
1. In our opening brief, we argued that a jury could find, as a matter
of logic and common sense, that if Woodbridge believed the rejected
applicants were unfit for the Woodbridge production jobs because they
had or were susceptible to CTS, Woodbridge must also believe they
could not perform other jobs that required the same or higher levels
of repetitive motion. EEOC Br. at 20-22. Accordingly, contrary to
defendant's assertion, it is strongly in dispute whether "Woodbridge
believed that the claimants were generally employable." Def. Br. at 24.
As we argued in our opening brief, the undisputed facts support a
logical inference that Woodbridge's perception that the rejected
applicants were unable to perform high levels of repetitive motion
extended beyond the Woodbridge production jobs. It is undisputed
that the applicants were rejected for the production jobs because of
their abnormal neurometry scores indicating to defendant that they had
or would contract CTS. See, e.g., EEOC Br. at 5 (citing the record);
W.App.113 (Fulps Dep. at 60) ("if the doctor said that they were at risk,
then - then it was our obligation not to put them in that situation").
It is also undisputed that Woodbridge rejected the applicants because
CTS is caused or exacerbated by repetitive hand and wrist motion and
the foam production jobs require high levels of repetitive motion.
EEOC Br. at 4, 5 (citing the record).
Woodbridge contends that it was "impossible for Woodbridge to have
regarded the claimants as unable to work in jobs outside of Woodbridge"
because three of its decisionmakers testified that they never formed
an opinion about their general employability.<1> Def. Br. at 30.
As we pointed out in our opening brief, the decision-makers' testimony
that they were not considering the rejected applicants' ability to do
other jobs does not compel an award of summary judgment. We explained
that no affirmative evidence was required that Woodbridge officials
consciously reflected on the implications of their perceptions on the
applicants' overall employment prospects. EEOC Br. at 26. The district
court correctly rejected this defense. An employer cannot escape the
logical implications of its actions by merely asserting that it did
not think about them.<2> See EEOC Br. at 13, 22 (citing the district
court order).
In our opening brief, we pointed out that the OMA physicians stated
broadly that individuals with CTS should not perform jobs requiring
repetitive motion, and that these comments by OMA physicians that were
relied upon by Woodbridge provide additional support for the inference
that Woodbridge regarded the applicants as substantially limited in
working. EEOC Br. at 27-28. It is undisputed that Woodbridge relied on
OMA's advice in determining whether to withdraw conditional offers.<3>
See, e.g., IIIC.A.890 (Haffey Affidavit at ¶4)("If the post hire physical
comes back with a Dr.'s comment that someone is at high risk of injury
if placed in a repetitive motion job, then I don't hire them."); W.App.98
(Morgan Dep. at 143) (Woodbridge withdrew offers based on OMA's comments
that "recommended not hiring because of something relative to carpal
tunnel, be it an abnormal reading or something along that line");
see generally EEOC Br. at 6 (citing the record). On their face the
comments are broadly worded advisements against repetitive motion
or general statements about an increased risk of CTS; none of them
mention particular Woodbridge jobs to avoid. See, e.g., IIIC.A.747
(Anderson medical rpt.) ("patient may be at increased risk for CTS if
required to do repetitive motion type job"); see also EEOC Br. at 6-7
(citing medical forms).
Woodbridge argues in response that the OMA doctors' comments should
be read in context to refer only to the Woodbridge production jobs.
Def. Br. at 36. Defendant is free to argue that theory to a jury.
However, in deciding whether summary judgment was appropriate,
this Court must accept the evidence in the light most favorable to
the Commission, drawing all reasonable inferences in its favor.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). A jury could reject Woodbridge's argument that OMA's
comments were meant to refer to only the Woodbridge production jobs
and instead accept these comments as they are written - as general
warnings about performing repetitive motion jobs.<4> Moreover, even
if OMA's comments were limited to the Woodbridge production jobs,
summary judgment would still be inappropriate because a jury could
infer from Woodbridge's perceptions about the rejected applicants'
inability to perform the production jobs that it regarded them as
precluded from any job requiring as much or more repetitive motion.
2. The district court concluded that Woodbridge's view that the
rejected applicants were unqualified for foam production jobs at its
plant did not support an inference that the company believed they were
substantially limited in working because the
Woodbridge jobs had "unique requirements." EEOC Br. Addendum at 10
(Order at 10). We argued the court's characterization of the Woodbridge
production plants as unique is not supported by the record, and that
the only evidence in the record comparing the Woodbridge jobs to other
jobs supports a finding that there are thousands of jobs in the Kansas
City labor market with comparable levels of repetitive motion that would
utilize training, knowledge, skills, and abilities similar to those of
the rejected applicants. EEOC Br. at 23-25.
Woodbridge argues in response that its production jobs are "very
unique jobs" that are "fast-paced and require high speed, high volume,
strenuous repetitive motion of the hands and wrists." Def. Br. at 28-29.
Woodbridge also states that the jobs in question are the only foam
production jobs in the area, and that the production line moves at the
rate of 50 feet per minute. Id. at 2-3, 24, 29. As support for these
statements, Woodbridge cites only evidence detailing the tasks involved
in the production jobs.<5> See id. at 2-3. The company refers to
no evidence comparing the requirements of the foam production jobs to
other jobs potentially available to the applicants. Woodbridge cannot
convincingly argue that these jobs are "unique" without reference to
any other jobs in the relevant labor market.
The number of other jobs in the Kansas City area from which the
applicants would be disqualified if they were physically impaired
in the way Woodbridge perceived them is relevant in determining
whether Woodbridge believed that the applicants' "overall employment
opportunities are limited." Fjellestad v. Pizza Hut of America, Inc.,
188 F.3d 944, 949 (8th Cir. 1999). Accordingly, the Commission offered
evidence comparing Woodbridge's production jobs to other jobs in the
labor market. The Browning report constitutes probative evidence that
would support a finding that many thousands of jobs in the Kansas City
area require the same high levels and duration of repetitive motion and
that the applicants are therefore perceived as substantially limited
in working. Browning carefully analyzed the Woodbridge jobs so she
could compare the tasks, skills, and duration required of the Woodbridge
production jobs to ascertain which other jobs in the Kansas City area
had comparable levels of repetitive motion. She performed an on-site
analysis of the production jobs at the Woodbridge plant, observing and
videotaping the motions required. IIC.A.290 (Browning Rpt. at 3).
She also reviewed job descriptions and ergonomic analyses and job
safety analyses provided by Woodbridge regarding the production jobs.
Id. Browning "identified those variables which most accurately and
comprehensively described the repetitive motion at the level of hands
and wrists" and "selected the Level and Frequency ratings for those
variables within the Woodbridge production jobs." IIC.A.301 (Browning
Rpt. at 14). She matched variables found in the Woodbridge production
jobs - manual dexterity; wrist-finger speed; using hands on objects,
tools, controls; and making repetitive motions - to other jobs in the
Kansas City metropolitan area.<6> IIC.A.302 (Browning Rpt. at 15).
Browning's analyses revealed that the rejected applicants would
be precluded from tens of thousands of other jobs in the Kansas
City area as well as the Woodbridge production positions if they
actually could not safely perform repetitive hand and wrist motion.
IIC.A.307 (Browning Rpt. at 20). Such evidence supports a finding
that the Woodbridge production jobs are not special or unique in the
universe of manual labor jobs available to the rejected applicants,
and that the applicants are perceived as precluded from a class of jobs
or broad range of jobs. See EEOC v. Joslyn Mfg. Co., No. 95C4956, 1996
WL 400037, at *7 (N.D. Ill. July 15, 1996) ("[w]here an employer fails
to hire a job applicant based on a perceived impairment that forecloses
a broad range of jobs in an industry, or even within a large company,
the employer regards that applicant as disabled under the ADA").
Defendant criticizes the Browning report for its "broad sweeping
generalizations" about the Woodbridge production jobs and argues that
Browning concluded that the applicants were regarded as unable to
perform jobs of "Instrumental Musician, Farmer, Watchmaker, Plumber,
and Jeweler." Def. Br. at 38. On the contrary, Browning tailored her
loss of access inquiry to each applicant based on that individual's
education and training; leisure and work history; medical history;
and skills. IIC.A.296-301 (Browning Rpt. at 9-14); see also EEOC
v. Joslyn Mfg., 1996 WL 400037, at *6 ("[t]he court must ask whether
the perceived impairment creates a significant barrier to employment for
the particular job seeker"). For example, Delores Anderson did not lose
access to the jobs of musician, farmer, watchmaker, plumber, or jeweler
because she never performed a job with skills that are transferable to
those jobs. See, e.g., IIC.A.353-55 (Anderson Loss of Access from job
titles); IIC.A.363 (Delores Anderson -- Loss of Access from Claimant's
Work History Using OES Data). The Browning report offers compelling
evidence of the "number and types of jobs utilizing similar training,
knowledge, skills or abilities, within the geographical area, from
which the individual is also disqualified." Sutton v. United Airlines,
527 U.S. 471, 492 (1999), citing 29 C.F.R. § 1630.2(j)(3)(ii)(A),(B).
The Browning report demonstrates why this case may be distinguished
from Sutton, Murphy v. United Parcel Service, 527 U.S. 516 (1999),
or Shipley v. City of University City, 195 F.3d 1020 (8th Cir. 1999).
See Def. Br. at 23-24, 26-28. In those cases, the courts determined
that there was insufficient evidence to show that the plaintiffs were
precluded from more than one particular job. If accepted by a fact
finder, the Browning report establishes that the applicants were viewed
as limited in a way that precluded them from a majority of the manual
labor jobs in the Kansas City area -- between 59 and 99.5% -- because
so many of these jobs available to the rejected applicants based on
their backgrounds require comparable or higher levels of repetitive
motion as the Woodbridge jobs. See EEOC Br. at 9-13, 23-25 (citing
Browning report).
Woodbridge argues that EEOC v. Rockwell Int'l Corp., 243 F.3d 1012 (7th
Cir. 2001), supports the district court's award of summary judgment
in this case. On the contrary, Rockwell supports the Commission's
position in this appeal. In Rockwell, the Seventh Circuit 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 1017-18. The Rockwell court indicated that, had the
Commission offered evidence "concerning the demographics of the Southern
Illinois employment market," it would have survived summary judgment.
Id. at 1018. Because the Commission has offered precisely the type of
evidence the Seventh Circuit required in Rockwell, the Rockwell decision
offers no basis for affirmance of the district court's award of summary
judgment and instead supports reversal.
3. The Commission's theory in this case is that Woodbridge perceived
applicants who failed the neurometry test as having CTS and excluded
them from the production jobs with high levels of repetitive motion
that could be unsafe for such individuals. We have never maintained
that the rejected applicants had any impairment that actually limited
their ability to work.<7> Nonetheless, Woodbridge spends a significant
portion of its brief detailing jobs that the applicants secured after
they were turned away by Woodbridge. Def. Br. at 12-17, 31-32. In a
case alleging that a group of individuals is perceived by an employer
to be disabled, subsequent work history is manifestly irrelevant.
See, e.g., Deane v. Pocono Med. Ctr., 142 F.3d 138, 144 (3d Cir. 1998)
("[plaintiff's] subsequent work history could, at most, reflect her
lack of an actual disability, and it therefore sheds no light whatever
on whether, at the time of her termination, [defendant] regarded her
impairment as substantially limiting her ability to work"). There is
no reason the applicants should not have obtained other jobs after
being rejected by Woodbridge - there was nothing wrong with them.
Moreover, the fact that all the applicants obtained similar types of
manual labor jobs, such as assembly line or food service positions,
only serves to corroborate Browning's assessment of the types of
jobs to which they had access. See IIC.A.290 (Browning Rpt. at 3).
See also Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996)
(person's expertise, background, and job expectations are relevant
factors in defining the class of jobs used to determine whether an
applicant is disabled).
Woodbridge's interpretation of the record represents at best a
possible view of the evidence in this case; however, another reasonable
interpretation is that Woodbridge viewed the applicants as substantially
limited in working. A fact finder could choose the latter option.
Consequently, summary judgment was improper.
CONCLUSION
For the foregoing reasons, the judgment of the district court should
be reversed and the case remanded for further proceedings.
Respectfully submitted,
GWENDOLYN YOUNG REAMS
Associate General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
___________________________________
JULIE L. GANTZ
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4718
April 23, 2001
CERTIFICATE OF COMPLIANCE
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CONSTANGY, BROOKS & SMITH
2600 Grand Blvd, Suite 300
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____________________________
Julie L. Gantz, Esq.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
April 23, 2001
1 In fact, one of these decisionmakers testified that he
could not state an opinion about whether any job with repetitive hand
and wrist motion could produce the same risk of injury as the Woodbridge
production jobs "without having documentation by somebody that studied
those jobs." W.App.75 (Haffey II Dep. at 204). The Browning report
provides precisely this kind of documentation. See infra pp. 12-15.
2 Woodbridge also argues that it is entitled to summary judgment because
the rejected applicants testified in their depositions that they did
not know what evidence established that Woodbridge regarded them as
substantially limited in working. Def. Br. at 25-26. To the extent
this is a variation of the argument that only affirmative statements by
Woodbridge that it considered the applicants' general employability will
suffice, it is wrong for the reasons stated in the text. Moreover, there
is no reason to expect the applicants to explain the legal theory behind
the Commission's claims. Terms of art such as "regarded as disabled"
or "substantially limited in working" characterize discrimination in
terms that may not appear to be discrimination to a layperson.
3 Defendant argues that it withdrew offers from the rejected applicants
due to OSHA concerns, not workers' compensation costs. See Def. Br. at
4 n.1, 30. There is support in the record for the Commission's assertion
that workers' compensation costs were in fact a concern and that OMA was
aware of this. See IC.A.218 (minutes of April 27, 1997, meeting between
OMA and Woodbridge stating that "Randy clearly established his concerns
were from a liability issue and potential work comp cases he would be
taking on if they were to hire someone with even a slight problem");
IC.A.181-82, 183-86 (Morgan Dep. at 26-27, 35-38) (workers' compensation
cost information "helped us to better understand the total cost of
the injuries and what injuries were costing us the most"); IC.A.177-78
(Haffey II Dep. at 214-15) (acknowledging that workers' compensation
premiums increase when employees file claims based on CTS); W.App.103
(Morgan Dep. at 208)(OMA was Woodbridge's "gatekeeper, more or less,
on our workers' compensation cases, injuries."). However, Woodbridge's
motivation for relying on the neurometry test is not at issue in this
appeal since it is not relevant to the question of whether Woodbridge
perceived the rejected applicants as substantially limited in working.
4 That the comments on the medical exam forms were meant to be general
is also substantiated by testimony of the OMA physicians elsewhere in
the record. As we discussed in our opening brief, Dr. Foster stated
repeatedly that persons with CTS cannot safely perform any job requiring
repetitive hand and wrist motions, including typing or assembly line work.
See EEOC Br. at 7-8, 27 (citing the record). Dr. Walker testified that
persons with CTS should not perform production jobs at Woodbridge nor
any other repetitive motion jobs. Id. at 8, 27 (citing record).
5 Some of testimony in the record directly undermines Woodbridge's
attempts to depict the jobs as involving a high degree of repetitive
motion. For example, the testimony of Woodbridge's production supervisor
suggests that there is nothing unusual about these production jobs.
See W.App.14 (Butler Dep. at 67) (refusing to state that inserter job is
"very repetitive"); W.App.18-19 (Butler Dep. at 77-78) (stating it would
take "some strength and force" to pull seat cushions from the molds but
stating he cannot quantify the amount of strength and force and doesn't
know if they come out "fairly easily" or not).
6 Browning compared the Woodbridge production jobs to those in the
labor market requiring "frequent or constant" handling according to the
Dictionary of Occupational Titles and O*Net, both of which are products
of the U.S. Department of Labor and are commonly used by professionals
in making comparisons between jobs. "Handling" is defined as "seizing,
holding, grasping, or otherwise working with hand or hands." IIC.A.298
(Browning Rpt. at 11). The term "frequent" refers to handling 1/3 to
2/3 of the work day, while "constant" describes more than 2/3 of the
work day. Id.
7 Although the issue of actual disability is not presented, defendant
asserts that "carpal tunnel syndrome is not a 'disability' as
defined by the ADA." See Def. Br. at 21 n.3 (emphasis in original).
This categorical statement is antithetical to the case-specific
inquiry required by the ADA. See Sutton, 527 U.S. at 483, quoting 20
C.F.R. pt. 1630, App. § 1630.2(j) ("The determination of whether an
individual has a disability is not necessarily based on the name or
diagnosis of the impairment the person has, but rather on the effect
of that impairment on the life of the individual"). Furthermore a
number of courts have found that individuals with CTS could qualify as
disabled under the ADA. See, e.g., Cravens v. Blue Cross & Blue Shield
of Kansas City, 214 F.3d 1011, 1016 (8th Cir. 2000) (undisputed that
plaintiff with bilateral CTS was disabled within the meaning of the
ADA); Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 675-76 (7th
Cir. 1998) (employees with CTS offered sufficient evidence that they
were substantially limiting in working to overcome summary judgment);
Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 11 (1st Cir. 1999) (plaintiff
adduced sufficient evidence that her CTS was both recurrent and permanent
and that she was substantially limited in working); Wellington v. Lyon
County Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999) (there was a
question of fact as to whether former school janitor suffering from CTS
was substantially limited in working).