that defendant's perception precluded Claimants from entry level
positions at defendant's plant is, by itself, insufficient.
Evidence of an inability to perform a particular job for a
particular employer is not sufficient to establish a substantial
limitation on the ability to work. The impairment must
substantially limit employment generally. Id. at 514.
While plaintiff is not required to establish a precise percentage
of jobs that defendant's perception would have precluded Claimants
from performing, plaintiff "has not set forth any evidence from
which we can determine even general guideposts, such as whether
[the perceived] impairment forecloses [Claimants] from accepting
a few, many, or most of the jobs in a particular class or in
a broad range of classes." Id.
Plaintiff argues that DePaoli v. Abbott Laboratories,
140 F.3d 668, 673 (7th Cir. 1998), holds that "any assembly line
jobs that require repetitive movement" constitutes a broad range
of jobs as a matter of law. In fact, the court merely stated that
virtually any assembly line job that required repetitive movement
would constitute a wide group of jobs in the Chicago area economy.
It then stated that absent other problems with the plaintiffs case,
it would have remanded the case to the district court for a
determination of what class of jobs the plaintiff could no longer
perform — an issue that apparently had not been developed in the
record in that case. Id. In the instant case, defendant's motion
for summary judgment put plaintiff to the proof that was
contemplated by the DePaoli court. Plaintiff, however, has failed
to produce evidence of what jobs the perceived impairment would
have precluded Claimants from performing aside from the jobs at
defendant's facility. Therefore, plaintiff is reduced to arguing
that Claimants were perceived as unable to perform all assembly
line jobs, but there is no evidence in the record of how many
assembly line jobs in the relevant market required repetitive
movement or the use of vibratory power tools.
Moreover, in reaching its conclusion, the DePaoli court relied
on Webb v. Garelick Manufacturing Co., 94 F.3d 484 (8th Cir.
1996), in which the court reversed a grant of summary judgment
for the defendant and remanded to the district court for an
"individualized assessment of the extent to which [the plaintiffs]
hand condition limited his meaningful opportunities for
employment." Id. at 488. The court further held that the district
court should have determined what class of jobs was relevant for
its disability analysis with respect to the plaintiff, taking
into consideration the type of job from which the plaintiff was
terminated and the special skills that he developed in his 24
years with the defendant. It is plaintiff's burden to present
evidence from which the court can make such a determination.
Plaintiff has completely failed to do so, arguing simply that
being regarded as unable to perform continuous repetitive motion
or use vibratory power tools is sufficient. It is not.
Plaintiff has presented no evidence of the kinds or number of
jobs having such requirements, either within the relevant
geographic area or even more generally. Therefore, there is
simply no evidence from which a jury could conclude that
Claimants were precluded from a class of jobs or a broad range of
jobs, under the DePaoli analysis or otherwise. Absent such
evidence, plaintiff cannot establish that Claimants were disabled
within the meaning of the ADA.
The court reaches this conclusion reluctantly. It is quite
possible that plaintiff could have produced evidence that
defendant's perception of the claimants' disabilities precluded
them from a broad range of jobs in the relevant market. It is
also possible that the deficiencies in the Brethauer report — not
to mention the impermissible input into that report by plaintiffs
counsel — indicates a lack of such evidence. The point remains that
a trier of fact must base its decision on evidence, not on
intuition or possibilities. Summary judgment cannot be avoided by
mere speculation. Anderson v. Stauffer Chem. Co., 965 F.2d 397,
402 (7th Cir. 1992). As the record
stands in this case, for plaintiff to prevail the jury would have
to infer that there were a sufficient number of jobs in the
relevant market requiring repetitive movement or the use of
vibratory tools based on intuition or supposition, not evidence.
Plaintiff had ample opportunity to develop the record, but failed
to do so, compelling the entry of summary judgment for defendant.*fn3
For the reasons set forth above, defendant's motion for summary
judgment is granted.