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U.S. E.E.O.C. v. ROCKWELL INTERN. CORP.

August 13, 1999

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL., PLAINTIFFS,
v.
ROCKWELL INTERNATIONAL CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gettleman, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff, United States Equal Employment Commission, on behalf of 72 named individuals ("Claimants"), has sued defendant Rockwell International Corporation, among others, alleging that defendant violated the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), by rejecting otherwise qualified work applicants based on an abnormal result on a pre-employment nerve conduction test of the median nerve. The 72 applicants were rejected in 1992 and 1993. Defendant has moved for summary judgment, arguing that plaintiff cannot establish that defendant regarded the Claimants as disabled within the meaning of the ADA. For the reasons set forth below defendant's motion is granted.

Facts*fn1

Defendant's Centralia Illinois facility made plastic parts for automobiles, such as hoods, fenders, and tailgates. During 1992 and part of 1993, as part of its employment application process defendant administered a nerve conduction test to test susceptibility to certain conditions, the most common being carpal tunnel syndrome. An abnormal result on the test excluded applicants from certain entry level positions including trimmer, finisher, final finisher, assembler, RTM operator, molder and multi-operation positions. The first four positions made up over 90% of the persons hired at the Centralia facility between 1992 and 1995.

Defendant has submitted evidence that it used the results of the test to reject individuals from only four jobs: trimmer, finisher, final finisher, and assembler, all of which defendant argues had a job description that required constant repetition and constant use of laboratory tools. In its position statement filed with the EEOC in 1993, however, defendant stated that it excluded applicants with abnormal nerve tests from various jobs because it believed that they "will develop carpal tunnel syndrome or cumulative trauma disorder if subject to continuing motions and/or vibratory power tools." (Emphasis added). Plaintiff argues that the position statement demonstrates that defendant perceived Claimants as unable to perform a group of jobs requiring either constant repetition or constant use of laboratory tools. Defendant disputes this interpretation, but again has accepted plaintiffs position for purposes of the pending motion for summary judgment.

Discussion

To invoke protection under the ADA, plaintiff must establish that the Claimants suffered from a disability as defined in the Act. Skorup v. Modern Door Corp., 153 F.3d 512, 514 (7th Cir. 1998). The ADA defines disability as: a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; b) a record of such impairment; or c) being regarded as having such an impairment. 42 U.S.C. § 12102 (2).

In the instant case, it is undisputed that none of the Claimants actually suffered from or had a record of any impairment that substantially limited one or more of the major life activities. Therefore, the sole issue is whether defendant regarded Claimants as having such an impairment when it rejected their employment applications based on the abnormal nerve conduction test result.

To establish that defendant discriminated against Claimants by rejecting them based on the nerve conduction testing program, plaintiff must establish that defendant perceived or regarded Claimants as having an impairment that substantially limited them in a major life activity. The only major life activity from which plaintiff claims defendant perceived Claimants as limited is working. In this context, "substantially limited" means "significantly restricts the ability to perform 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); Weiler v. Household Finance Corp., 101 F.3d 519, 525 (7th Cir. 1996). As the Seventh Circuit has made clear, "an inability to perform a particular job for a particular employer is not sufficient to establish a substantial limitation on the ability to work; rather, the impairment must substantially limit employment generally." Skorup, 153 F.3d at 514-15. "Section 12102(2)(A) looks for proof beyond the plaintiffs inability to satisfy the expectations of a single employer; to be `substantial,' a limitation on the ability to work must be one that affects the plaintiffs ability to perform a class or range of jobs before it qualifies as a disabling limitation under the ADA. For purposes of § 12102(2)(C), the employer's perception of the plaintiffs inability to work must have a comparable breadth." Id. at 515. Therefore, to defeat defendant's motion for summary judgment, plaintiff must present some evidence establishing a genuine issue of material fact as to whether defendant perceived Claimants as being substantially limited from employment generally.

The EEOC regulations identify several factors the court "should consider when determining whether an individual is substantially limited in the major life activity of working, including the number and type of jobs utilizing similar training, knowledge, skills or abilities, within [the] geographical area [reasonably accessible to the individual], from which the individual is also disqualified." Murphy v. United Parcel Service, Inc., ___ U.S. ___, 119 S.Ct. 2133, 2138, ___ L.Ed.2d ___ (1999) (quoting 29 C.F.R. 1630.2(j)(3)(ii)(B).)

To establish that defendant perceived Claimants as substantially limited from employment generally, plaintiff relies almost exclusively on the report of Michael Brethauer, a vocational counselor. Brethauer opines that defendant's perception of Claimants, which he describes as the inability to work in occupations that involve "continuing repetitive motions and/or vibratory power tools," resulted in a substantial loss of each Claimants' access to the relevant labor market. To reach this opinion Brethauer first estimated the number of occupations each claimant could perform based on his job history and education (the "original access number"). He did this by retrieving information from the Dictionary of Occupational Titles ("DOT") about the training and skills required of other occupations. He then determined a lesser number (the "adjusted access number") that would be available to each claimant if he/she was regarded as unable to perform jobs that require "continuing repetitive motions and/or vibratory power tools." He then calculated the percentage reduction between those two numbers.

Defendant's Challenge of Plaintiff's Vocational Expert

Defendant has challenged Brethauer's report as inadmissible under Fed.R.Evid. 702, 703 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendant does not challenge Brethauer's qualifications as a vocational expert, but rather the report itself as "replete with assumptions that bear no relation to the facts in the record, methodologically flawed on ...


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