Equal Employment Opportunity Commission v. Rockwell International Corp.

we also Teague, in as stated present exceptions are questions jurisdictional ‘where do cases, applicable. We justice Bousley is not where, find exceptional or ed ”) Stern that “the flexibility.’ (quoting Fryer’s situation more demands believe Inc., Gypsum, [was] States conviction v. United of an accurate likelihood Cir.1977)). Fryer’s case 1329, 1333 the retroac- without seriously diminished” issues jurisdictional ] “implicate[ does not The hold- applicability Old tive Chief. circum exceptional give[ ] nor rise new with a rule deals ing Old Chief id. stances.” interpre- is not procedure and criminal event, Fryer’s argument congressional meaning of the tation this raised before if it had been fail even statute. apply did not Supreme Court appeal. deter Bousley, Teague rule of III. Conclusion relief § 2255 collateral mined that reasons, find above-stated For the claim only constitutional case where a new rule of Fryer has identified guilty petitioner’s not the

was whether retroactive law made constitutional Teague, intelligent, knowing and plea was Accordingly, review. on collateral cases rules, was procedural only to applied petition denial of court’s “to situation inapplicable corpus Affirmed. habeas writ of of a criminal meaning decides the Court Bousley, Congress.” enacted statute 620, 118 Court 1604. The at S.Ct.

523 U.S. doctrine based Teague

noted that “principal that one

on the notion corpus assure [is] habeas functions of EQUAL OPPORTU EMPLOYMENT under a incarcerated that man has been COMMISSION, Plaintiff- NITY impermissibly creates an procedure Appellant/Cross-Appellee, will be convict innocent large risk that the (internal and citations quotations ed.” Id. observed, omitted). also The Court INTERNATIONAL ROCKWELL proce- of criminal rule a new [UJnless CORP., Union United International a nature that “without of such dure is Automobile, Agricul Aerospace and convic- of an accurate [it] likelihood America, Implement Workers tural diminished,” [Teague v. seriously tion is Automobile, 1060], U.S., 313[, 1766 of United Lane,] and Local at S.Ct. Imple apply Agricultural the rule Aerospace reason to there is no By America, review. con- retroactively habeas Defen ment Workers holding trast, of this Court decisions dants-Appellees, stat- federal criminal that a substantive conduct, like ute does not reach “ ‘beyond the conduct placing decisions Inc., Industries, Cambridge Defendant- lawmaking author- power of the criminal Appellee/Cross-Appellant. ” id., 311[, ity proscribe,’ 00-1897, Nos. 00-2034. States, Mackey v. United (quoting 1060] 667, 692[, 91 S.Ct. 401 U.S. Appeals, Court of United States (1971)), necessarily carry a 404] L.Ed.2d Circuit. Seventh stands risk that defendant significant the law does act that Argued convicted “an Oct. Davis v. United not make criminal.” 8, 2001. Decided March 346[,

States, U.S. 109] L.Ed.2d that the Having already Id. determined Fryer’s

facts of do not fall within case hoped the tests

weakness. susceptible to identify job applicants such as car- trauma disorders cumulative Rock- syndrome. Accordingly, pal tunnel facili- a medical applicant sent each well or her ty where the median nerves his electric shocks arms were stimulated with im- the travel time of the electrical and the muscles points the shock pulse from were The results of the tests was recorded. Em- Equal (argued), L. Geoffrey Carter Rockwell, used which them given Commission, Office Opportunity ployment making personnel decisions. DC, Counsel, Gor- Washington, of General policy Rockwell followed because Waldron, Oppor- Employment Equal don (trimmer, finish- entry positions four level IL, Commission, Chicago, plain- for tunity assembler), finisher, er, into final and tiff-appellant. hires were percent of all new which 90 Vedder, Price (argued), Nina Stillman G. repetitive mo- “continuing placed, involved IL, Kammholz, for Chicago, & Kaufman vibratory use [the of] tions and/or Corp. International Rockwell develop- at risk for put tools” workers Rock- trauma disorders. ing cumulative Raitt, Jaffe, (argued), LaFave Melanie nonskilled positions three well’s other MI, Weiss, Detroit, Marsha A. & Heuer (molder, opera- multi-operator, and RTM Harris, B. Tolchin, Michael Ungaretti & tor) motion or require repetitive did Friedman, Katz, Eagle, Chi- Schur Erp, & tools, these vibratory power the use of IL, Inc. Cambridge for Industries cago, level, bid, entry were more desirable & Feld- Hillman, Cornfield Barbara J. Thus, placed new hire as positions. any man, IL, for Union Chicago, International molder, operator RTM multi-operator, or Auto., Aerospace, Agricultural of United & position by a “bumped” from that would be Local Implement Workers of America the permitted by as employee, more senior 1766. bargaining agreement, union’s collective trimmer, up working end and would WOOD, RIPPLE, DIANE P. Before finisher, finisher, final or assembler. EVANS, Judges. and Circuit rejected all therefore nonskilled Rockwell EVANS, Judge. T. Circuit TERENCE the nor- scored outside job applicants who test.1 mal on the nerve conduction Inter- Beginning the Rockwell appli- all Corporation national Employment Opportunity Equal The Centraba, positions plant at its cants for brought suit behalf Commission Illinois, conduction undergo rejected by “nerve Rockweb on job applicants we are The tests were nerve conduction designed, tests.” the of abnormal basis results, told, neuropa- company’s the presence alleging to confirm the test with Dis- by, among policy the Americans thy syndrome characterized violated —a seq.2 et Act, 42 U.S.C. loss and muscle abilities things, sensory Implement Workers of only Agricultural policy applied 1. to nonskilled Rockwell's America, represented the workers at company applicants. hire skilled The did workers, plant. claim and tool & Centraba The trade such as electricians Rockwell’s workers, dye regardless against scores on the defendants is derivative of their Rockwell, address against conduction test. so we will nerve claim Cambridge arguments. also only Rockwell’s brings cross-appeal court’s Cambridge are Indus- The other defendants summary judgment favor of tries, Inc., grant partial plant acquired the Centraba Cambridge it held that August EEOC Rockwell on successor, need to but we won’t chapters of the Internation- national and local Automobile, Aerospace reach issue. al Union of United discovery stipulated time for further by Rockwell has necessitated test, applicants, except flunking Then, prior amendments. week entry qualified positions. were for its level the rescheduled Daubert hearing, the applicants We hasten note that did supplement Commission moved to impairment at not suffer from summary judgment record with Dr. Rockwell, away were by time turned Smith’s and deposition testimony. merely regarded but Rockwell report, Dr. Smith’s which was served develop- likelihood having an enhanced 10,1999, on March Commission offered impairments in the future. bone opinions on the ergonomic posed risks Rock- contention thus became whether entry-level the four job appli- well discriminated against the potential for each to cause work-relat- cants because it them as suffer- ed musculoskeletal disorders. Although disability. from a U.S.C. compared Dr. Smith repetition the 12102(2)(C). upper duration of extremity movements years litigation, After 3 in Rockwell the four Rockwell to the formed the district court that it intended repetition upper extremity duration of summary judgment to move for on the required by movements a selection of developed basis that the had EEOC fields, in other opin- he did not render an Rockwell the on ion the number of in the Southern within meaning claimants disabled the Illinois market from which the claim- Rockwell, According ADA. the to the impair- ants would be foreclosed due to the parties at a advised the district court sta ments by Rockwell. tus conference that would need time The district court denied the EEOC’s evidence, develop expert to vocational supplement motion to the record as un- expert ergonomics and medical evi timely. Noting previous its indulgence dence would not be relevant to resolve the in granting request Commission the to Rockwell’s motion. The Commission dis report putes it amend Dr. Brethauer’s the representation that made after such to court, completion the and our briefing previous record does not reflect and its ex- any position that the Commission took on hearing, tension the Daubert the district event, 25, August the In any matter. court held that the Commission should report the filed the of its Commission supplement have moved to the record ear- expert Brethauer, Dr. Michael lier, report sitting rather than on Smith’s 18, 1998, and on December Rockwell Subsequently, for almost 3 months. after summary judgment, asking moved for the hearing testimony proceed- at the Daubert report district court to exclude Brethauer’s ing, the district court excluded Dr. Bre- under Daubert v. Merrell Dow Pharma report. thauer’s ceuticals, Inc., 509 U.S. Without admissible evidence Briefing 125 L.Ed.2d 469 expert, from a vocational the Commission’s summary judgment Rockwell’s motion for 13, 1999, August case was doomed. On completed by January was granted summary judg the district court pending April the motion was continued defendants, ment to the 27,1999, holding the hearing. Daubert re prove Commission Rockwell prior days hearing Ten to the Daubert claimants as disabled because garded the the court sought Commission leave of to con there was no evidence Rockwell Dr. submit amendments to Brethauer’s re- them foreclosed from an entire sidered port, upon which for first time relied jobs” “class of or a “broad findings ergonomics of Rockwell’s ex- in the geographic various classes” relevant pert, Dr. Michael The district Smith. appeals area. The now Commission file permitted court to Commission denial of its ruling and the district court’s report amended and rescheduled the Dau- May supplement summary judg- hearing bert for late order allow motion to Moreover, irrele- Dr. Smith’s first review the We’ll record.3 ment discretion, abuse of vant to the determination of Rockwell’s for scheduling decision v. Provimi Veal it summary Co. because judgment Pierson & motion for Arthur (7th Cir.1989), issues, F.2d 838-39 Corp., opinion on vocational expressed no summary judgment ruling de and then point motion. of contention Corp., 153 v. Modern Door Skorup novo. contends that Dr. Smith’s The Commission Cir.1998). to the ergonomic calculations are relevant jobs the claimants number of alternative court denied the Com The district performed subject to Rock- could have the sum supplement request mission’s restrictions, and thus are relevant well’s ruling, in an oral mary judgment record the claim- whether Rockwell considered it fully set out as reasoning is not prove But in order ants disabled. in a order. The have been written might dis- considered the claimants concern, howev judge express did ADA, the abled under Commission summary er, motion for that Rockwell’s that Rockwell viewed must have evidence fully briefed and await judgment had been condition as a restriction on claimants’ time. This was ing decision some “a their class of had The district court legitimate concern. in various classes” to amend already allowed Commission area. 29 C.F.R. geographic the relevant comple report Dr. Brethauer’s after the 1630.2(j)(3)(i)-(ii). Although § Dr. Smith’s summary judgment briefing, which tion of report upper the number of extrem- suspension proceedings states necessitated re-depose him. This of a ity per Rockwell could movements hour course, summary on "delayed, of action Penney worker at J.C. warehouse 20, 1999, Then, May motion. judgment jobs, it addresses nei- few other selected only hearing, a week before the Daubert jobs many ther how such exist Southern supplement moved to the Commission types nor what of movements are Illinois it report, record with Dr. Smith’s myriad number of alterna- required for 2 more than months earlier on received record, therefore, jobs. tive On this 10, Permitting March the Commis say cannot the district court abused with that supplement sion to the record in thwarting discretion the Commission’s likely provoked have sec hijack Dr. ergonomics effort Smith’s challenge Rockwell on ond Daubert report for use vocational evidence. as Smith, ergonomist, was ground is left without admissible So the EEOC See, qualified expert. not as a vocational on, presses It howev- evidence. e.g., Chicago, City Wilson v. 6 F.3d er, contending that the district court erred (7th Cir.1993) 1233, (pathologist 1239 granting summary judgment to Rock- qualified testify subject within the prove, solely it based well because expertise neurologist, psychiatrist, of a upon perception that the claim- This would have caused a physiologist). perform requiring ants could not fre- delay disposition in the substantial further vibratory quent repetition or the use of motion, summary judgment of Rockwell’s tools, power that Rockwell considered the already old. The dis growing leap the logical claimants disabled. This trict that it quite reasonably court decided us to take —from Rock- Commission asks didn’t any longer. Trippe want to wait perception that the claimants could well’s Mfg. Co. v. American Power Conversion (7th Cir.1995) perform specific jobs four to the con- 624, Corp., 629 46 F.3d (“Federal that Rockwell them as clusion courts have the inherent many jobs in Southern their dockets so as to foreclosed from to administer resources.”). one, requires us to judicial large conserve Illinois—is scarce report. appeal 3. The of Dr. Brethauer’s Commission does not the exclu- sion

1017 See, ADA plaintiffs. be extra mindful of the essential elements e.g., Santiago Clem case. Airlines, of the Commission’s Inc., ente v. Executive 213 F.3d 25, (1st Cir.2000); 32 Broussard v. Univers In ADA order to establish an ity California, Berkeley, 192 F.3d violation, prove the Commission must (9th 1252, Cir.1999); 1257-58 Muller v. against Rockwell discriminated the claim (2d Costello, 187 F.3d Cir.1999); ants because it considered to be dis Doren v. Battle Creek Sys., Health abled, or suffering from an Cir.1999); Bolton v. “substantially major life limits” Scrivner, Inc., Cir Airlines, activity. Inc., Sutton v. United .1994). points But Rockwell to no author 527 U.S. i ty for proposition that such major quantita L.Ed.2d 450 When the life indispensible tive data is activity working, at issue is it is in to a claimant’s fact, “substantially limits” means case. EEOC’s interpretive claimants were “significantly guidelines restricted in make clear that the factors set either a class of §in 1630.2(j)(3)(ii) out “are not intended to or a broad in various classes require an onerous evidentiary showing. compared average person to the having Rather, the terms presen comparable training, skills and abilities.” tation of evidence of general employment § 1630.2(j)(3)(i). 29 C.F.R. A “class of demographics recognized occupa and/or jobs” is the from which a claimant was tional ap classifications that indicate the disqualified, all as well as utiliz proximate ‘few,’ number of {e.g., training, similar knowledge, and skills ‘most’) ‘many,’ from which an individual within geographical “the area which the would be excluded impair because of an has reasonable [claimant] access.” ment.” App. C.F.R. Pt. 1630.2(j)(3)(ii)(A)-(B). C.F.R. A “broad § 1630.2(j). We therefore decline Rock classes,” in various in con well’s invitation per to create a se rule that trast, job is the from which a claimant was plaintiff prevail cannot without quantita disqualified, as well as all other not tive precise evidence of the characteristics utilizing training, similar knowledge, and job of the local market. skills within “the geographical area to time, At the same this is not one which the [claimant] has ac reasonable (C). of the rare in which 1630.2(j)(3)(ii)(A), cess.” 29 C.F.R. cases the claimants’ Thus, impairments according to the are so that Commission’s own severe their sub regulations, its case must job include some stantial foreclosure from the market is proof types of the and jobs” “number of Lab., Compare obvious. DePaoli v. Abbott “geographical within the area to which the (7th Cir.1998) (medical 668, 140 F.3d [claimant] has reasonable access.” See plaintiffs evidence of inability to make Sutton, 492-93, 2139; at U.S. S.Ct. repetitive right motions with her hand suf Serv., Inc., Murphy v. United Parcel 527 ficient to create triable issue on foreclo 516, 524-25, U.S. 119 S.Ct. assembly sure from entire class of line L.Ed.2d 484 jobs) McKay with v. Toyota Mfg., Motor U.S.A., Inc., Cir. argues proof Rockwell this 1997) (evidence plaintiffs of inability to use must quantitative take the form of voca vibrating perform repeti tools and tional addressing data the number of alter right tive with motions hand insufficient to native in the Southern Illinois area establish foreclosure from entire class of (either within the same class or across manufacturing jobs). classes) Accordingly, from which Rockwell up Commission had to come with some disqualified. claimants In support contention, types evidence of the number and of other this cites number of jobs in cases from other circuits that Southern Illinois from which the discuss the ruling absence of such evidence in against job applicants would be excluded because points agreement between significant “This is impairments. perceived of their that, it does I majority agree as the requirement, us. an onerous from which it, evidence rule for opinion puts per at least some there is no se faced claimants] [the infer can- might plaintiffs one ADA to the effect that [their] restrictions’ ‘significant evidence prevail quantitative without jobs.” requirements meet characteristics of the local precise of the Clinic, Ltd., 133 Davidson with quarrel No one would market. Midelfort Cir.1998). proof Mere F.3d statistical quantitative, that such the idea an individual impairment prevented useful, but may often be evidence job for a particular performing from us is whether question in the case before to ren employer is insufficient particular summary judg- plaintiffs can survive ADA. under the him or her “disabled” der No, majority replies, ment without it. 2139; Sutton, at U.S. goes speculate and it on to statistical 2133; Murphy, 527 U.S. necessary. I always is almost Inc., 139 Roadway Express, Baulos v. the con- propositions: with both take issue (7th Cir.1998). 1147, 1151 in this and the broader state- clusion in this record con- There is no evidence Specifically, on this record I cannot ment. demographics Southern cerning Equal Employment Oppor- that the agree Rather, market. employment Illinois tend- tunity Commission had “no” evidence us to infer that Rockwell Commission asks range to show what class or significantly re- regarded the claimants as is, the class of was at issue here —that entering that market based stricted jobs, jobs, or broad solely on the fact that Rockwell disability Rock- persons with the assumed specific four them as unable to To well had identified would be excluded. precisely at Rockwell. This is have contrary, the Commission did Inference type we refused to make evidence, kind imag- of the most concrete summary judg- Skorup, where we affirmed inable, easily and its evidence met plaintiff ADA failed to ment because an set respect ele- legal standards with this general guideposts out from which ment. I would find that the EEOC if could determine her fore- a trial on the claimants are entitled to few, many, closed her from or most remaining, their ADA claims to resolve the in a particular class or case. very troubling, issues Similarly, classes. 153 F.3d at 515. having debate we are fits within the before in this case does not record us A of an ADA case as follows. structure perceived disclose whether claimants’ disability, a person must first either have inability perform jobs fre- requiring to history disability, a of or be or have a vibratory power quent repetition or use of in having disability, as a order to any job them in tools foreclosed protection under the Act. be entitled to Illinois other than the four Rock- Southern Lines, Inc., See Sutton v. United Air 527 jobs. Athough well the Commission is 2139, 144 L.Ed.2d U.S. percentage to calculate an exact 12102(2). (1999); § In the U.S.C. jobs of from which Rockwell case, everyone that present agrees foreclosed, claimants as it cannot survive claimants, despite they the score received summary judgment in a like with case this tests, pres- on the nerve conduction had no demographics evidence of the Instead, Rockwell disability. ent believed judgment relevant labor market. The of people that whose nerve conduction tests the district court Affirmed. produced a certain level were scores above WOOD, DIANE P. Judge, Circuit develop to cumulative trauma likely more dissenting. syndrome. carpal disorders such as tunnel unimportant it is to the case (Athough I regret join majority’s that I cannot as- opinion, present posture, I note that this despite the fact that there are dubious, sumption highly was at best and would have been significantly restricted certainly point a contested of fact. And it ability their to perform either a class of is not at all clear to me that aas matter of jobs or a broad range in various permits law the ADA an employer to re- classes. See Moore v. J.B. Hunt Trans person fully fuse to hire a who is qualified Inc., port, Cir.2000). work, simply because Rockwell, through its motion for summary that might unspecified individual at some judgment, imposed on the Commission the develop physical time the future or obligation produce evidence in opposi disability other that would render her un- tion to the motion permit that would have able at that later employ- date meet the ted a trier of fact to conclude that either a expectations. er’s reasonable This smacks so_ class or a range was of exactly speculation the kind of and ster- view, affected. In my the Commission met eotyping that the designed statute was to that burden. combat.) Rockwell then took matters one It did so in a pragmatic way, rather than step further and decided to treat through the use of pointed statistics. It claimants if already as had the feared out that the record contains concrete infor- disorders; such, it decided to exclude mation about the characteristics of the all that would be unavail- thought people people. able to such is, perform: job requirements This us step. leads to the second Not specific positions of the four from which every protectable is a disabili Rockwell excluded them. I certainly statute; ty under the the statute covers agree majority with the pointing only impairments substantially those requirements specific job of a will not major Sutton, limit activity. life 527 always enough be to show that a broad 2139; U.S. at U.S.C. or a class of is at issue. 12102(2); When, § 1630.2(g). C.F.R. If job question highly calls for idio- case, we are dealing with a syncratic ability skills—the to work one perceived disability rather than an actual specific machine, kind of the ability to disability, the test becomes whether the operate computer one kind of program, or (1) employer mistakenly believes either ability shift, to work a certain time that an unimpaired person impair has example' person fact that a does not —the substantially major ment that limits a life have those skills would tell a court little or (2) activity, or that an actual but non- nothing qualifica- about whether the set of limiting impairment substantially limits tions for job question typical Sutton, major life activity. at U.S. jobs. class or broad On the major 119 S.Ct. 2139. The life activi hand, example to take an extreme here, ty at issue as is often the is the spectrum, the other end of the if the activity working. order to show qualification for the was the disability supposedly these claimants write, read and then it is that a obvious scope had was one that fell within the person job who was unsuited for that statute, the the EEOC had to that it show equally would be a unsuited for class or “significantly left them restricted the jobs. broad of In range such a it ability perform to either a class of or would be absurd to statistical evi- range a broad of in various classes as showing dence how many compared to average person having the much, literacy. With this I believe that the comparable training, skills and abilities.” I majority agreement. and are still in It is 1630.2(j)(3)(i). § 29 C.F.R. The standards “obvious,” word, majority’s to use the that applicable an disability apply to actual range jobs requires literacy, a broad of equally perceived-disability the case: pointless and thus it would be to that whether, insist question is if the claimants had actually expert prepare a vocational show- employer had the disabilities the having, ing given them as the claimants that 95% of the in a area objective view of how gave dence also lacking person to a be foreclosed

would practice exclusionary widely a qualification. such sweeping. far that the discussion problem is a line end-points by illustrated the can be further simply point defines This par- greatest degree involved in from the ranging impairments the comparing job generality greatest to the have ticularity circuits this and other which cases point between At some characteristics. forward without claimant to go allowed extremes, be- additional evidence those with the evidence demographic requiring job(s) from which the criteria yond eases involved in impairments nec- will become excluded applicant is the demographic that suggested have courts affects the exclusion that essary to show court necessary. This be evidence range of jobs or a broad class of an entire prohibit that impairment that an held has by this case is problem posed jobs. The repetitive making claimant from ed the line, according to that and where to draw raised a tri right hand motions with her criteria. what she was fact as whether able issue of view, analy- for starting point my In the disabled, v. Abbott Laborato DePaoli see job or appropriately Cir.1998), (7th sis is ries, 140 F.3d excluding alleg- employer is per prevented that did an A should court disabled individual. edly work, lifting, and heavy forming overhead employer job that at the skills look body, from the see pulling out pushing deter- job demands Co., 102 F.3d Ben v. Old Coal Cochrum employer’s own specific to the mine how (7th Cir.1996). Accord Best v. more general, In workplace they are. Co., Cir. Shell Oil the more requirements, particular 1997) (truck per employer driver whose pres- necessary plaintiff it be for a will prohibiting him bad knee his ceived that shows demographic evidence ent a clutch or with driving trucks with in fact found are requirements those was re configuration common seat purposes. for ADA jobs to matter enough ADA); Well as disabled under garded only a job requirements if the include But Dist., 187 Lyon County School ington v. ability diploma, high like a school list Cir.1999) (plaintiff ability pounds, to lift more than on evidence go forward based allowed tools, use prevented carpal syndrome tunnel (without speci- repetitive motions frequent performing involving work metal him from needed), and particular motion fying the activities, fabrication, heavy car welding, attendance, general are regular variety of a of tools to pentry, or the use jobs, a broad enough to describe repairs); see also maintenance and doA of unskilled work. or a certain class Appendix 1630.2Q) Part 1630 C.F.R. tell the between trier of fact can difference (“an condition who a back individual has will across a cut generalized criteria perform the individual from prevents specialized crite- jobs, and job would be substan any heavy labor workplace-spe- employer ria that are activity major in the life tially limited cific, expert not a whether or contrast, cited the cases working”). jobs in the many thousands of tells it how suggest have majority in which courts re- area have similar geographic relevant necessary demographic ed that in this appropriate, is also quirements. It specialized involved much more re have context, particu- many jobs the to see how Clemente Ex Santiago strictions. by the thought were affected employer lar (1st Airlines, Inc., 25, 32 213 F.3d ecutive two, just one or or perceived disability: Cir.2000) on fly could not (flight attendant range? The Commission introduced do a planes; variety could non-pressurized entry- showing that 90% the fly employer or ground jobs at Rockwell were off unskilled level v. Broussard Univer- pressurized planes); That evi- applicants here. limits to sity at Berkeley, impaired 192 F.3d by repetitive injuries stress of California (9th Cir.1999) (animal 1252, 1259 lab tech the future that they would not then be able carpal nician with syndrome tunnel job. to do the now, For analytic purposes of caring duties for mice in above, as noted we approach must lab; one one of employee accommodations case as if plaintiffs were already sought was transfer to working with differ suffering injuries from kept animals); Costello, ent Muller v. 187 F.3d away from frequent repetitive motions and (2d Cir.1999) (corrections officer the use of vibratory power tools. Once precluded with asthma from working in done, that is the sufficiency of the Com- environment; smoky could still work in mission’s evidence defeat summary jail); county smoke-free Doren v. Battle judgment becomes clear. Creek Sys., Health I would reverse and remand for further Cir.1999) (pediatric prohibited nurse from proceedings, and thus I respectfully dis- heavy lifting or working more than 8-hour sent. shift; no evidence that she was excluded any pediatric job by lifting require

ment, or of how many pediatric nursing

jobs in area required longer than 8-hour

shift); Scrivner, Inc., Bolton v. 1994) 943-44 (employee Cir.

faced “limitations” on standing, walking, ovei'head, lifting but medical

gave indication of extent of restric tions). view, my disability MacDONALD, Robert Caren C. Thomas claimants in this Windy City Hemp Development having which, case as disability Board, Plaintiffs-Appellees, Cross- —a estimation, prohibited these Appellants, performing workers from frequent repeti tive motions or from using vibratory power CHICAGO, CITY OF

tools—is much more Defendant- to a similar restric repetitive tion on Appellant, Cross-Appellee. with motion one hand or a restriction on overhead work than it is to 98-3836, 98-3912, Nos. 99-1429. restriction flying non-pressurized planes, or working smoky environ United States of Appeals, Court ment, or caring for mice. Seventh Circuit. I see nothing to gained by having be Argued Jan. 2000. experts routinely appear Decided March solely ADA cases purpose for the of testi- fying that a broad range ability pounds, to lift perform repetitive Indeed, motions. above,

noted DePaoli found that a

disability prevented plaintiff

performing repetitive motions with her

right protected hand was under the Act.

Obviously, in this case precisely we cannot

compare severity disability suf- plaintiffs

fered plaintiff with that of

DePaoli, simple for the reason that these

people yet were not at all. Rock- disabled merely perceived

well them as disabled it thought they might

because become

Case Details

Case Name: Equal Employment Opportunity Commission v. Rockwell International Corp.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 8, 2001

Citation: 243 F.3d 1012

Docket Number: 00-1897, 00-2034

Court Abbreviation: 7th Cir.