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 Pursuant to FRAP 32(a)(7)(C), I certify that this brief has been prepared in monospaced (nonproportionally spaced) typeface using Corel Word Perfect 8, Courier New 12-point font, and the textual portion contains 3991 words. A diskette containing the text of the brief is enclosed; the diskette has been scanned for viruses and is virus-free. _________________________ Julie L. GantzCERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief and an electronic copy on diskette have been mailed first class, postage prepaid, to: Michael L. Blumenthal, Esq. CONSTANGY, BROOKS & SMITH 2600 Grand Blvd, Suite 300 Kansas City, MO 64108 ____________________________ 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).