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 ______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ______________________________________________________ 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 SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT The Commission alleged that Woodbridge Corporation violated the Americans with Disabilities Act ("ADA") by withdrawing conditional offers of employment from 19 applicants because it regarded them as disabled due to abnormal scores they received on a test designed to screen for carpal tunnel syndrome. The district court granted summary judgment for defendant on the ground that the rejected applicants did not have a disability when they were rejected because Woodbridge did not regard them as substantially limited in working. The court based this holding on an erroneous assessment that the Woodbridge production jobs at issue were unique, and thus could not constitute a class or broad range of jobs. This appeal involves coverage under § 12102(2)(C) of the ADA which extends the protections of the statute to individuals who are regarded as substantially limited in a major life activity. The case also focuses on an assessment of the major life activity of working. Both areas of ADA jurisprudence are complex and have at times generated confusion in the courts. Because additional explanation and clarification of the Commission's theory of ADA coverage may be needed in this case, the Commission submits that oral argument of 20 minutes per side would be of assistance to the Court. TABLE OF CONTENTS SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings 2 B. Statement of Facts 3 C. District Court Decision 13 STANDARD OF REVIEW 15 SUMMARY OF ARGUMENT 16 ARGUMENT I. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT WOODBRIDGE REGARDED THE REJECTED APPLICANTS AS SUBSTANTIALLY LIMITED IN WORKING. 18 CONCLUSION 30 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM EEOC v. Woodbridge, October 2, 2000 Order Awarding Summary Judgment to Woodbridge 1 Rule v. Missouri Gaming Co., Inc., No. 99-0554-CV-W-ECF (W.D. Mo. Dec. 10, 1999) 15 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 ______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ______________________________________________________ STATEMENT OF JURISDICTION The district court had jurisdiction under 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. Final judgment was entered on October 2, 2000. R. 104.<1> The Equal Employment Opportunity Commission filed a timely notice of appeal on November 22, 2000. R. 105. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE 1. Whether the evidence is sufficient to support a finding that defendant regarded a group of job applicants as substantially limited in working when it refused to hire them because it believed, based on the results of a screening test for carpal tunnel syndrome, that they could not perform defendant's productions jobs because they require repetitive hand and wrist motion. 42 U.S.C. § 12102(2)(C) Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir. 1999) Webb v. Garelick Mfg. Co., 94 F.3d 484 (8th Cir. 1996) STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the United States District Court for the Western District of Missouri dismissing this action to enforce Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The Commission initiated this action on April 12, 1999, by filing a complaint alleging that defendant violated the ADA by withdrawing conditional offers of employment from a group of applicants because it believed they had or were likely to develop carpal tunnel syndrome ("CTS"). I Commission's Appendix 12 ("C.A.") (Complaint ¶ 8). Defendant filed a motion for summary judgment on June 5, 2000, arguing that the applicants did not have a disability when they were rejected for employment because Woodbridge did not regard them as substantially limited in working. R. 74 (Woodbridge Br. at 30-36). On October 2, 2000, the district court granted defendant's motion and entered judgment. R. 103-04. The court held 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. See Addendum at 9 (Order at 9). B. Statement of Facts Woodbridge Corporation manufactures polyurethane foam pads used in automobile seats at a plant near Kansas City, Missouri. The majority of Woodbridge's 160 employees work in foam production jobs. IC.A.151-52 (Haffey II Dep. at 18-19). Production jobs are classified as either "online" or "offline," depending on whether workers perform tasks directly on the assembly line. R. 75 (I Woodbridge's Appendix in Support of Motion for Summary Judgment, Exh. 4) (Morgan Dep. at 53-54). Online jobs include two types of work: (1) inserting component parts into molds as they pass by on the line before the foam is poured, and (2) demolding the foam pads by pulling them out of the mold and placing them on a conveyor belt. Id., Exh. 1 (Butler Dep. at 55-56, 67, 77, 79); IIIC.A.890 (Haffey Affidavit ¶ 5). Offline jobs include: (1) inspecting and repairing the foam pads with hand-held tools, and (2) trimming and packing the pads. Id. (Butler Dep. at 109-116); IIIC.A.890 (Haffey Affidavit ¶ 5). All of these hourly foam production jobs require repetitive hand and wrist motion. IC.A.75-76 (Foster Dep. at 34-35); IC.A.140-41 (Haffey I Dep. at 51-52); IC.A.43 (Eberth Dep. at 37); IC.A.100 (Fulps Dep. at 83). Repetitive hand and wrist motion may cause or exacerbate carpal tunnel syndrome ("CTS"). IC.A.74-75 (Foster Dep. at 33-34); IC.A.80 (Foster 2/6/98 Affidavit ¶ 3, ¶ 12). CTS is an impairment of the median nerve in the carpal tunnel of the wrist that may cause pain, burning, tingling, weakness, and numbness in the hands, and may damage motor function. IC.A.226 (Franzblau Rpt. at 4); IC.A.80 (Foster 2/6/98 Affidavit ¶ 3). In 1994, Woodbridge, concerned about the increased incidence of CTS among its production workers, added a "neurometry" test to its pre-employment medical examination in an effort to screen applicants for the presence or propensity to develop CTS. IC.A.187-88 (Morgan Dep. at 42-43, 45); IC.A.220 (Client Information Sheet). The decision to add the test was motivated to some extent by concern about the cost of workers' compensation claims for repetitive stress injuries such as CTS. IC.A.218 (minutes of April 27, 1997 meeting between OMA and Woodbridge); IC.A.181-82, 183-86 (Morgan Dep. at 26-27, 35-38); IC.A.177-78 (Haffey II Dep. at 214-15). The neurometry test, which measures the speed of nerve impulses along the median nerve in an individual's wrist, IC.A.80 (Foster 2/6/98 Affidavit at ¶ 4-5), was administered to applicants after they were offered employment by Occupational Medicine Associates ("OMA"), a private clinic. IC.A.188 (Morgan Dep. at 43). Woodbridge believed the neurometry test detected CTS and the propensity to develop CTS. IC.A.194-96 (Morgan Dep. at 131-33); IC.A.139 (Haffey I Dep. at 48); IC.A.155-55A (Haffey II Dep. at 42-43); IC.A.42-43 (Eberth Dep. at 36-37); IC.A.99 (Fulps Dep. at 82). Company officials testified that persons with CTS or who were likely to develop CTS should not be placed in any Woodbridge production jobs because of the repetitive hand and wrist motions required. IC.A.198, 199-201, 202 (Morgan Dep. at 143, 157-59, 165); IC.A.42-43, 50-52, 54, 57-58 (Eberth Dep. at 36-37, 76-78, 81, 99-100); IC.A.141-42, 143-44 (Haffey I Dep. at 52-53, 55-56); IC.A.96, 99-100, 103, 106-07, 110, 115, 125-26 (Fulps Dep. at 76, 82-83, 115, 125-26, 131, 144, 178-79). Accordingly, Woodbridge required the test of all applicants for hourly production jobs and considered applicants with abnormal neurometry results ineligible for any of the hourly production jobs with the company. IC.A.140-42, 144 (Haffey I Dep. at 51-53, 56); IC.A.52 (Eberth Dep. at 78). After the test's implementation, Woodbridge withdrew employment offers from applicants with abnormal neurometry scores,<2> IC.A.144 (Haffey I Dep. at 56); IC.A.156-57 (Haffey II Dep. at 46-47); IC.A.46-47 (Eberth Dep. at 43-44), including the 19 applicants in this case. IC.A.102-03, 104, 106, 109, 112, 113, 116, 118, 119, 120, 122, 123-24, 126, 127 (Fulps Dep. at 114-15, 118, 125, 130, 136, 140, 146, 153, 157, 163, 167, 169-70, 179, 181); R. 83 (II EEOC Appendix in Support of Opposition to Defendant's Motion for Summary Judgment, Exh. 12) (Table B to Interrogatory No. 5 at 2). None of the applicants had symptoms of CTS at the time they underwent the pre-employment medical examination. IIIC.A.737-888 (Applicants' medical exam forms). Woodbridge officials testified that they relied on comments by OMA physicians on neurometry test reports in deciding to withdraw employment offers from applicants who failed the neurometry test. IC.A.197, 198 (Morgan Dep. at 138, 143); IC.A.48-49 (Eberth Dep. at 53-54); IC.A.158 (Haffey I Dep. at 78); IC.A.158-60, 161, 173-74 (Haffey II Dep. at 78-80, 95, 137-38); IIIC.A.890 (Haffey Affidavit ¶ 4); IC.A.96-98, 102-03, 104-05, 108-110, 111-112, 113-14, 115, 116-17, 118, 119, 121-22, 123-24, 125-26, 127 (Fulps Dep. at 76-78, 114-15, 118-19, 129-31, 135-36, 140-41, 144, 146-47, 153, 157, 166-167, 169-70, 178-79, 181). The comments by OMA physicians addressed the applicants' ability to work in any job requiring repetitive motion; they were not limited to the applicants' ability to perform Woodbridge production jobs and did not specifically mention Woodbridge jobs. IIIC.A.739, 747, 753, 761A, 772, 783, 791, 798, 806, 812, 819, 827, 837, 840, 842, 846, 854, 864, 870, 881 (comments re: neurometry on applicants' medical exam forms). For example, the comments advised that the applicant "may be an increased risk for CTS if required to do repetitive motion job." See, e.g., IIIC.A.870 (medical exam form of Luna Washington). In fact, none of the reports on the 19 applicants at issue contains a specific recommendation that the applicants should avoid Woodbridge production jobs. IIIC.A. 739, 747, 753, 761A, 772, 783, 791, 798, 806, 812, 819, 827, 837, 840, 842, 846, 854, 864, 870, 881 (comments re: neurometry on applicants' medical exam forms)(medical exam forms).<3> OMA physicians asserted that individuals with CTS should not perform jobs requiring repetitive motion. Dr. Foster, an employee of OMA, stated repeatedly that persons with CTS cannot safely perform any job requiring repetitive hand and wrist motions, including typing or assembly line work. IC.A.81 (Foster 2/6/98 Affidavit ¶ 22); IC.A.74-76, 77 (Foster Dep. at 33-35, 59); IC.A.217 (Foster letter re: Delores Anderson). Dr. Foster agreed that "[t]here are a lot of manufacturing jobs that are repetitive motion jobs even outside of Woodbridge," IC.A.76 (Foster Dep. at 35), and that there were a number of employers in the Kansas City area that have jobs that require repetitive hand and wrist motion. IC.A.78 (Foster Dep. at 60). Dr. Foster also agreed with the statement that "carpal tunnel can keep you out of a broad range of jobs." IC.A.76 (Foster Dep. at 35). In a letter regarding applicant Delores Anderson, Dr. Foster opined that "any repetitive motion would put this patient at increased risk for further deterioration of her problems referable to her wrists." IC.A.217 (Foster letter re: Delores Anderson). Dr. Walker, also an employee of OMA, testified that persons with CTS should not perform production jobs at Woodbridge nor any other repetitive motion jobs. IC.A.215-16 (Walker Dep. at 104-05). Dr. Walker testified that, at the time when he believed the neurometry test was an accurate predictor of CTS, he believed that someone who received an abnormal result on the neurometry test should not do repetitive motion type jobs at Woodbridge or elsewhere. IC.A.216 (Walker Dep. at 105). At least one Woodbridge official testified that she believed the applicants who failed the neurometry test could not safely perform any jobs requiring repetitive hand and wrist motion. IC.A.53-54, 57-58 (Eberth Dep. at 80-81, 99-100). Most Woodbridge officials refused to state a view on whether the rejected applicants could perform jobs with comparable repetitive motion outside Woodbridge. IC.A.201, 203-04 (Morgan Dep. at 159, 166-67); IC.A.87-89 (Fulps Dep. at 23-25); IC.A.163-64, 175-76 (Haffey II Dep. at 109-10, 205); R. 75 (I Woodbridge Appendix in Support of Motion for Summary Judgment, Exh. 3) (Haffey II Dep. at 204) ("I wouldn't render an opinion or belief . . . I recommended that on the folks who are supposed to know . . . people like physicians, people like industrial physical therapists, ergonomists."). The Commission offered a report by vocational rehabilitation expert Sherry Browning analyzing the extent to which the rejected applicants would have been excluded from the labor market in the Kansas City area if they actually had been unable to perform repetitive hand and wrist motion at the level required for the Woodbridge production jobs. IIC.A.288 (Browning Rpt. at 1). In preparation for her assessment, Browning reviewed job descriptions, ergonomic analyses, and job safety analyses from vocational publications; Woodbridge's 1996 procedures manual; and depositions and affidavits of Woodbridge officials and OMA physicians. IIC.A.290 (Browning Rpt. at 3). Browning performed and videotaped an on-site job analysis at the Woodbridge plant on December 15, 1999. Id. For each of the 19 applicants, she reviewed documents recounting their education, work histories, leisure activities, and medical histories, and also interviewed each applicant by telephone. Id. Browning then performed two sets of analyses using occupational information from Department of Labor databases. In the first, she used the Dictionary of Occupational Titles ("DOT") to develop a list of job titles from which each applicant would be excluded,<4> and paired that information with Census Bureau data to determine the number and types of jobs from which each applicant would have been excluded during the year he or she was rejected from Woodbridge.<5> IIC.A.306 (Browning Rpt. at 19). In the second set of analyses, Browning used descriptors from the O*NET occupational database to identify occupational groups and variables associated with repetitive hand and wrist motion.<6> She searched the O*NET database for other occupational groups with comparable repetitive hand and wrist motion requirements. IIC.A.291 (Browning Rpt. at 4). Browning then used Census and Occupational Employment Statistics (OES) survey codes (which are correlated to O*NET occupational units) to ascertain the numbers and types of groups to which the applicants would have lost access. IIC.A.306 (Browning Rpt. at 19). Browning concluded that, "had these individuals been unable to perform jobs requiring repetitive motions of the hands and wrists, including those jobs requiring repetitive motions at the same or greater levels than the Woodbridge Corporation production jobs, they would have lost access to a substantial number of jobs in the Kansas City metropolitan area." IIC.A.307 (Browning Rpt. at 20). Using the DOT and Census data, Browning calculated that the applicants would have lost access to between 110,879 and 325,143 jobs representing between 32 and 91 different classes of occupations. Id. (Browning Rpt. at 20). Using the O*NET database and OES data, the number of jobs to which the applicants would have lost access ranged from 164,675 to 186,269 representing between 52 and 64 different classes of occupations. Id. Browning remarked that, "[o]f further significance was the degree to which repetitive motion is required in jobs in general." Id. Browning also noted that the level of education and the work histories of most of the applicants "precluded admittance to jobs requiring higher levels of education and training and in general, less manual work." IIC.A.307 (Browning Rpt. at 20). Most of the 19 applicants had not pursued education beyond high school and had performed chiefly manual labor jobs such as manufacturing, stock handling, and restaurant work. See, e.g., IIC.A.344, 348-49 (Browning Rpt. re: Delores Anderson); IIC.A.367, 369-70 (Browning Rpt. re: Jacquelyn Carson); IIC.A.411, 412-13 (Browning Rpt. re: Maurice Cunningham); IIC.A.430-32 (Browning Rpt. re: Greg Dyer); IIC.A.499-501 (Browning Rpt. re: Sheridan Johnston). Given these limitations, Browning calculated that the applicants would have lost access to between 57.9 and 99.5 percent of the unskilled jobs otherwise available to them in the Kansas City area. IIC.A.342-43 (Attachment I to Browning Rpt.). C. The District Court Decision The district court granted defendant's motion for summary judgment. At the outset, the court rejected the notion that, because Woodbridge "only considered the applicants for one type of position," the company's actions could not reflect a perception that they were disqualified from a class or broad range of jobs. See Addendum at 7 (Order at 7). The court observed that, "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." Id. Instead, the court asserted, the question of whether Woodbridge regarded the rejected applicants as substantially limited in working must be decided based on the particular facts of this case. Id. The court contrasted the facts of this case with those in Rule v. Missouri Gaming Co., No. 99-0554-CV-W-ECF (W.D. Mo. Dec. 10, 1999), a recent decision by the same judge. See Addendum at 8 (Order at 8); Addendum at 15-26 (Rule decision). In Rule, the court concluded that there was sufficient evidence to support a finding that defendant regarded a rejected applicant for a security guard position as disabled notwithstanding testimony of defendant's officials that they only considered how plaintiff's diabetes would affect his ability to perform the duties of the security guard position for which he applied. According to the district court, the decision in Rule is based on the fact that defendant's perception "that plaintiff was not able to sufficiently walk, stand, or see which were essential . . . functions" of the job for which he was rejected, "rendered him 'disabled' in the eyes of his employer." Addendum at 8 (Order at 8). The court concluded that, "[i]n the present case, Woodbridge has indicated no similar broad perceptions of the applicants in question." Id. at 9. In the court's view, the evidence indicates that Woodbridge believed the applicants were "generally employable," but were not "qualified for the repetitive motion positions at the Woodbridge plant." Id. The court acknowledged that "repetitive motion positions can encompass a wide variety of positions, thus raising the Court's suspicions," but concluded that Woodbridge's "perceptions were narrow;" it merely regarded the applicants as unqualified for "the high speed and strenuous assembly line and inspection work requiring extremely high volume repetitive motion which was found at the Woodbridge plant." Id. The court also analogized "the unique manufacturing positions" at Woodbridge to the global airline pilot job at issue in Sutton v. United Air Lines, 527 U.S. 471 (1999), and the DOT-certified mechanic position in Murphy v. United Parcel Services, 527 U.S. 516 (1999). Addendum at 9-12 (Order at 9-12). As in those cases, the court concluded that the fact that Woodbridge considered the rejected applicants unqualified for production jobs at its plant is insufficient to establish that it regarded them as substantially limited in working because, "even under Defendant's restrictive view of the applicants, the applicants were still qualified for a broad class of jobs including those involving repetitive motion." Addendum at 11 (Order at 11). STANDARD OF REVIEW A district court's grant of summary judgment is reviewed de novo. See, e.g., Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir. 1994). In determining whether summary judgment was appropriate, this Court is required to assess the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in its favor. 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). Summary judgment is appropriate only where no reasonable fact finder could return a verdict for the Commission. Anderson, 477 U.S. at 248; Crawford, 37 F.3d at 1341 ("summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant"). This Court has directed that, "[b]ecause discrimination cases often turn on inferences rather than on direct evidence, we are particularly deferential to the non-moving party alleging discrimination." Webb v. Garelick Mfg. Co., 94 F.3d 484, 486 (8th Cir. 1996). Therefore, "summary judgment should seldom be used in employment discrimination cases." Crawford, 37 F.3d at 1341; Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000) ("emphasiz[ing] the oft repeated phrase that summary judgment should seldom be granted in discrimination cases"). SUMMARY OF ARGUMENT There was sufficient evidence to support a finding that Woodbridge regarded the rejected applicants as substantially limited in working. The Commission offered substantial evidence that Woodbridge perceived the applicants as precluded from a broad range of jobs or a class of jobs requiring repetitive hand and wrist motion. It is undisputed that Woodbridge officials believed the applicants who failed the neurometry test were unable to perform the plant's production jobs because the jobs required high levels of repetitive motion. Woodbridge officials testified that they withdrew job offers from applicants with abnormal neurometry scores because they believed they had CTS or were likely to develop it. They also testified that such persons should not be placed in jobs requiring repetitive hand and wrist motion, and that they should not perform Woodbridge production jobs because they required repetitive motion. In addition, physicians on whom Woodbridge relied on making hiring decisions asserted that individuals with CTS should not perform repetitive motion jobs for any employer. This evidence would support an inference that Woodbridge regarded the applicants as unfit for any work involving repetitive hand and wrist motion comparable to the Woodbridge production jobs. Contrary to the district court's conclusion, the record indicates that there is nothing unique or special about the requirements of the Woodbridge production jobs as compared to tens of thousands of other manual labor jobs in the Kansas City area. The Commission's vocational expert concluded that between 57.9 and 99.5 percent of the other jobs in the Kansas City area for which the rejected applicants were otherwise qualified had comparable levels of repetitive hand and wrist motion. One of the expert's calculations places the applicants' loss of access as perceived by Woodbridge at between 110,879 and 325,143 jobs representing between 32 and 91 different occupations. Consequently, there is sufficient evidence to support a finding that Woodbridge regarded the applicants as substantially limited in working. ARGUMENT I. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT WOODBRIDGE REGARDED THE REJECTED APPLICANTS AS SUBSTANTIALLY LIMITED IN WORKING. Under 42 U.S.C. § 12102(2)(C), an employer "runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity." Sutton v. United Air Lines, 527 U.S. 471, 490 (1999). An individual has a disability within the meaning of the ADA where an employer mistakenly believes she has a physical impairment that substantially limits a major life activity. Id. at 489. An individual is regarded as having an impairment that substantially limits a major life activity "when other people treat that person as having a substantially limiting impairment." Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995). The ADA's prohibition of discrimination against persons "regarded as" substantially limited by a physical or mental impairment is designed to protect against attitudinal barriers about disability. 29 C.F.R. pt. 1630, App. § 1630.2(l) (citing School Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987)). These include "concerns about productivity, safety, insurance, liability, attendance, cost of accommodation and accessibility, and acceptance by co-workers and customers." See H.R. Rep. 101-485 (III) (1990), reprinted in 1990 U.S.C.C.A.N. 453.<7> See also Wooten, 58 F.3d at 385 ("[t]his provision is intended to combat the effects of 'archaic attitudes,' erroneous perceptions, and myths that work to the disadvantage of persons with or regarded as having disabilities"). The evidence in this case is sufficient to support a finding that Woodbridge regarded the rejected applicants as substantially limited in the major life activity of working. To be regarded as substantially limited in working, an individual must be viewed as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities." 29 C.F.R. § 1630.2(j)(3)(i); see also Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 949 (8th Cir. 1999) (citing § 1630.2). The defendant must believe that the individual's "overall employment opportunities are limited." Fjellestad, 188 F.3d at 949. The issue of whether or not an individual is substantially limited or is regarded as substantially limited in a major life activity is a factual question to be decided on a case-by-case basis.<8> See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999) (ADA creates a statutory obligation to determine the existence of disabilities on a case-by-case basis); Fjellestad, 188 F.3d at 949. There is sufficient evidence to support a finding that Woodbridge perceived the claimants as significantly restricted in their ability to meet the requirements of a broad range of jobs or a class of jobs in addition to the production jobs at its plant. It is undisputed that Woodbridge believed the applicants had or were likely to develop CTS because they failed the neurometry test.<9> It is also undisputed that Woodbridge believed that persons with abnormal neurometry scores, including the 19 rejected applicants, could not perform Woodbridge production jobs because they all required high levels of repetitive hand and wrist motion. The only question is to what extent Woodbridge viewed the rejected applicants as disqualified from other jobs outside the plant. Woodbridge argued below that because it used the neurometry test only to screen applicants for production jobs at its Missouri plant, it necessarily regarded those applicants as limited with respect to those few jobs, and, therefore, did not regard them as substantially limited in working. The district court correctly rejected this argument. As the court observed, if this view were accepted, "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," which "would eviscerate the'regarded as' prong of the ADA." Addendum at 7 (Order at 7). The court correctly ruled that "a court must look to the rationale behind the employer's conclusion that a prospective employee is significantly restricted from performing a specific job" in deciding whether the employer viewed the prospective employee as substantially limited in a major life activity. Addendum at 7 (Order at 7). In reaching this conclusion, the district court relied on one of its own decisions where it denied an employer's motion for summary judgment in an ADA action on the ground that a jury could infer from the employer's action in rejecting the plaintiff from a single security guard position because of his diabetes that the employer regarded him as substantially limited in one or more major life activities. Addendum at 8-9 (Order at 8-9) (discussing Rule v. Missouri Gaming Co., Inc., No. 99-0554-CV-W-ECF (W.D. Mo. Dec. 10, 1999)). Other courts have applied the same reasoning. See, e.g., Cook v. State of Rhode Island Dep't of Mental Health, Retardation, and Hosps., 10 F.3d 17, 26 (1st Cir. 1993) ("denying an applicant even a single job that requires no unique physical skills, due solely to the perception that the applicant suffers from a physical limitation that would keep her from qualifying for a broad spectrum of jobs, can constitute treating an applicant as if her condition substantially limited a major life activity"); Johnson v. Univ. of Pennsylvania, No. CIV.A.96-3617, 1997 WL 379191, at *4 (W.D. Pa. June 26, 1997) (where defendant precluded plaintiff from consideration for data entry positions because of her carpal tunnel syndrome, jury could find that defendant viewed plaintiff as restricted from performing a class of jobs). The district court held that no such inference could be drawn in this case because the jobs from which Woodbridge excluded the applicants were "unique." There is no evidence in the record to support this characterization of the jobs at Woodbridge. Although the company provided evidence regarding the level of repetitive motion required by its production jobs, it offered no evidence comparing those jobs to other jobs available to the applicants. The Commission, however, provided substantial evidence that the Woodbridge production jobs were not unique or even unusual with respect to the level of repetitive motion they required. The district court ignored this evidence in granting summary judgment for Woodbridge. The report of the Commission's vocational expert, Sherry Browning, which was not even mentioned by the district court, identifies tens of thousands of jobs in the Kansas City metropolitan area that require levels of repetitive motion comparable to the levels required for Woodbridge production jobs. If the rejected applicants were in fact unable to perform repetitive hand and wrist motion at the level required by the Woodbridge production jobs, they would also be excluded from these jobs. Browning's report would support a finding that Woodbridge believed that the applicants' "overall employment opportunities are limited." Fjellestad, 188 F.3d at 949. Browning first calculated the number and types of jobs in the Kansas City metropolitan area to which the rejected applicants had reasonable access based on their education and work histories, and then assessed the degree to which those employment opportunities would be limited if they actually were unable to perform repetitive motions at the level required at the Woodbridge plant. See Webb, 94 F.3d at 487 ("[a] person's expertise, background, and job expectations are relevant factors in defining the class of jobs used to determine whether an individual is disabled"). The fact that the applicants typically had not pursued education beyond high school and had performed mostly manual labor jobs reduced their access to many jobs in the labor market that did not require repetitive motion. See IIC.A.307 (Browning Rpt. at 20); 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 where he had an education limited to a high school diploma and work experience limited to manufacturing, construction, heavy maintenance and plumbing); Smith v. Kitterman, 897 F. Supp. 423, 427 (W.D. Mo. 1995) (plaintiff with CTS who had never completed high school, had no vocational training, and had worked same repetitive motion job for 25 years was limited in access to a broad range of jobs); EEOC v. Joslyn Mfg. Co., No. 95 C 4956, 1999 WL 400037, at *7 (N.D. Ill. July 15, 1996) (because plaintiff's educational and employment background demonstrates a capacity for low and semi-skilled work and employment history focuses on manual labor, "a perceived impairment that prevents him from doing any job involving 'repetitive motions of bilateral hands' is particularly damaging to his job prospects"). In one set of analyses, Browning calculated that the applicants would have lost access to between 110,879 and 325,143 jobs representing between 32 and 91 different occupations. IIC.A.307 (Browning Rpt. at 20). Using another set of analyses, the number of jobs to which the applicants would have lost access ranged from 164,675 to 186,269, representing between 52 and 64 different classes of occupations. Id. Browning calculated that the applicants would suffer somewhere between a 57.9 to 99.5 percent loss of access to unskilled jobs in the Kansas City area if they were in fact unable to perform repetitive motion to the degree required by the Woodbridge production jobs at issue. IIC.A.342-43 (Attachment I to Browning Rpt.). Woodbridge offered no contrary evidence in response to the Browning report.<10> At one point the district court stated that "[t]here is no evidence which indicates that any decision maker ever formulated an opinion as to whether these rejected applicants were qualified for repetitive positions outside the Woodbridge company." Addendum at 5 (Order at 5). To the extent that this statement suggests that the court believed that some affirmative evidence was required that Woodbridge officials consciously reflected on the implications of their perceptions on the applicants' overall employment prospects, it is wrong. Indeed, it is inconsistent with the court's own views expressed earlier in the decision in this case, and in the Rule decision, that an employer's perception may be inferred from its actions. In any event, there is affirmative evidence that Woodbridge officials were aware of the ramifications of their view that the rejected applicants were restricted by a physical impairment from performing the production jobs at its plant. At least one Woodbridge official testified that the applicants could not safely perform any jobs requiring repetitive hand and wrist motion.<11> IC.A.53-54, 57-58 (Eberth Dep. at 80-81, 99-100). Furthermore, Woodbridge officials consistently testified that they generally relied upon the medical opinions of the doctors at OMA. See supra at pp. 6-7. The OMA doctors testified that individuals with CTS should not perform any jobs requiring repetitive motion. IC.A.74-76, 77 (Foster Dep. at 33-35, 59); IC.A.215-16 (Walker Dep. at 104-05). Furthermore, the Woodbridge officials testified that their decisions to withdrew employment offers from the applicants were based on the OMA physicians' comments regarding the neurometry test results. See supra at pp. 6-7.<12> These comments were consistently expressed in terms of general recommendations against performing jobs requiring repetitive motion, and were not limited to the Woodbridge production jobs. See id. at 6. The evidence that Woodbridge officials, who believed the applicants had CTS or would develop it based on their neurometry scores, relied upon OMA doctors' general advice that persons with CTS should avoid jobs involving repetitive motion, along with the doctors' specific comments that the rejected applicants should not perform any jobs requiring repetitive motion further supports an inference that Woodbridge regarded the applicants as unable to perform a broad range of jobs requiring repetitive motion. The record is sufficient to support a finding that Woodbridge regarded the rejected applicants as substantially limited in working. Woodbridge refused to hire these applicants because it believed that they could not engage in activities that involved frequent repetitive motion. A reasonable jury could find that these perceived limitations are not specific to the jobs at issue and would apply to a broad range of jobs in manufacturing, construction, and computer processing. See Webb, 94 F.3d at 488 ("[f]undamentally, the ADA is concerned with preventing substantial personal hardship in the form of significant reduction in a person's real work opportunities"); Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 11 (1st Cir. 1999) ("The inability to lift heavy objects and perform repetitive manual tasks can translate across a broad spectrum of physically demanding jobs."). While purporting to look to "the rationale behind the employer's conclusion that a prospective employee is significantly restricted from performing a specific job," the court ignored evidence that Woodbridge's perception that the rejected applicants could not perform the levels of repetitive motion required by the company's production jobs would, if true, preclude them from tens of thousands of jobs in the Kansas City area with similar levels of repetitive motion. Because the evidence indicates the applicants, as perceived by Woodbridge, would have been precluded from more than merely the Woodbridge production jobs, the court's award of summary judgment must be reversed. See DePaoli v. Abbott Labs., 140 F.3d 668, 673 (7th Cir. 1998) (where plaintiff's evidence indicated she was precluded from more than merely the defendant's production line job, summary judgment was inappropriate). 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 February 20, 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 6,576 words. A diskette containing the text of the brief is enclosed; the diskette has been scanned for viruses and is virus-free. _________________________ Julie L. Gantz CERTIFICATE 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: Rowdy Meeks, 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 February 20, 2001 ADDENDUM 1 Citations to the record proper are abbreviated "R." and refer to the district court docket number. 2 Any score in excess of 4.4 milliseconds is considered abnormal under the standards set by the neurometer's manufacturer. R. 75 (I Woodbridge Appendix in Support of Motion for Summary Judgment, Exh. 6) (Foster Dep. at 14). 3 While it is undisputed that Woodbridge believed the test detected the presence or likelihood of developing CTS, there is evidence that, in the absence of symptoms, nerve conduction testing does not establish that a person has CTS and is a poor predictor of whether that person will develop CTS in the future. IC.A.232, 235 (Franzblau Rpt. at 10, 13) ("[t]he overwhelming majority of asymptomatic workers with abnormal median nerve conduction test results will not develop carpal tunnel syndrome"); IC.A.65-66 (Foster Dep. at 18-19); IC.A.209 (Schockey Dep. at 38). One physician at OMA testified that he did not suggest using the neurometry test to screen applicants for Woodbridge production jobs and later informed the company that the test is an unreliable screening tool for CTS. IC.A.64, 67-69 (Foster Dep. at 13, 20-22) ("we didn't feel that the testing was reliable"). Nonetheless, Woodbridge continued to use the test until April 1997. IC.A.94-95 (Fulps Dep. at 70-71); IC.A.38 (Cline Dep. at 61); IC.A.218 (Apr. 25, 1997 meeting minutes). 4 The DOT contains the descriptions of thousands of jobs developed by Department of Labor occupational analysts. These jobs are categorized in a variety of ways in the DOT and in other vocational publications, including by "physical demands" and "environmental conditions." IIC.A.293-93 (Browning Rpt. at 5-6). 5 Browning identified the Woodbridge production jobs in the DOT as: mold dressers; hand finishers; rubber goods inspectors-testers; utility workers, molding; packers, hand; press tender. IIC.A.300 (Browning Rpt. at 13). She used census data sorted by the applicants' work capacities (education, skills, training, and experience) and amount of repetitive hand and wrist motion required (expressed by "frequent or constant" percentage of handling). Id. (Browning Rpt. at 13). Browning selected jobs requiring a grade school education, 30 days or less training, and "Frequent to Constant Handling." Id. Browning also examined the total number of these unskilled jobs available for the Kansas City area for the year each applicant was denied employment at Woodbridge. Id. (Browning Rpt. at 13). 6 The O*NET occupational database is comprised of data from the DOT that has been organized into a skills-based framework that describes worker and occupation requirements. Occupational unit variables, such as abilities, knowledge, and work-context, are rated on Importance (the importance of the ability to performance on this job); Level (the level of this ability needed to perform the job); and Frequency (the amount of time in the work period the worker spends using the ability). C.A. (Browning Rpt. at 4). She selected the following Occupational Units most closely resembling the Woodbridge hourly production jobs: production laborers/production helpers; cutters and trimmers; production inspectors; product repairers; and hand packers and packagers. C.A. (Browning Rpt. at 14.) She then identified the variables that described repetitive hand and wrist motion: manual dexterity; wrist-finger speed; using hands on objects, tools, controls; and making repetitive motions. Id. 7 The legislative history of this provision gives an example that is closely analogous to this case: "For example, many people are rejected from jobs because a back x-ray reveals some anomaly, even though the person has no symptoms of a back impairment. The reasons for the rejection are often the fear of injury, as well as increased insurance or worker's compensation costs. These reasons for rejection rely on common barriers to employment for persons with disabilities and therefore, the person is perceived to be disabled under the third test." H.R. Rep. No. 101-485 (III), reprinted in 1990 U.S.C.C.A.N. 453. 8 In assessing whether an individual is substantially limited in working, courts may consider factors such as: (1) the geographical area to which the individual has reasonable access; (2) the job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within a geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or (3) the job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes). 29 C.F.R. § 1630.2(j)(3)(ii). See also Webb, 94 F.3d at 487-88 (citing § 1630.2(j)(3)(ii)). 9 There is evidence that the neurometry test does not accurately detect CTS or a propensity to develop CTS in the future. See, e.g., IC.A.67-69 (Foster Dep. at 20-22). The neurometry test was discontinued in 1997 at OMA's urging. The parties dispute at what point before that date OMA told Woodbridge that the test was unreliable. The actual reliability of the test is irrelevant, however, to the question of whether Woodbridge regarded the applicants as substantially limited in working because Woodbridge has never denied that it believed that individuals who failed the test had CTS or were likely to develop it. 10 Woodbridge criticized some aspects of the report in its reply brief below, but did not argue that the report was inadmissible. See R. 93 (Woodbridge Reply Br. at 15-17). Such criticisms go to the weight accorded the evidence and are properly made to the jury. 11 Most of the Woodbridge officials refused to offer an opinion on whether the applicants would be precluded from jobs outside of Woodbridge requiring the same amount of repetitive motion. However, an employer cannot escape the obvious implications of its actions by simply denying that it thought of them. As the district court recognized, a contrary rule would allow employers to easily evade the ADA's prohibition of discrimination against persons regarded as substantially limited. See Addendum at 7 (Order at 7). 12 The evidence indicates that Woodbridge took the neurometry test very seriously. Woodbridge viewed applicants with abnormal scores as automatically precluded from all hourly production jobs. IC.A.141-42, 144 (Haffey I Dep. at 52-53, 56). This stringency was based in part on Woodbridge's concern about workers' compensation costs associated with repetitive stress injuries. IC.A.218 (April 27, 1997 meeting minutes).