MEMORANDUM AND ORDER
This matter comes before the Court on a variety of motions in this suit under Title I and V of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112(a), and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The plaintiff Equal Employment Opportunity Commission’s (“EEOC” or “Commission”) contends that defendant Amsted Rail Co., Inc. (“Am-sted”)
• the EEOC’s motion for partial summary judgment on the issue of liability and the direct threat defense to an ADA action (Doc. 97), Amsted’s response (Doc. 104), and the EEOC’s reply (Doc. 112);
• Amsted’s motion for summary judgment (Doc. 98), the EEOC’s response (Doc. 106), and Amsted’s reply (Doc. 109);
• Amsted’s motion to strike parts of Ingram’s declaration in support of summary judgment (Doc. 108), and the EEOC’s response (Doc. 111).
I. Summary Judgment Standard
Summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett,
The initial summary judgment burden of production is on the moving party to show the Court that there is no reason to have a trial. Celotex,
II. Facts
Amsted operates a facility in Granite City, Illinois. At that facility, it employs individuals as “chippers” to remove imperfections and to finish the surfaces of the steel side frames and bolsters it manufactures for railcars. Chippers use pneumatically powered tools — including chipping hammers, two-handled disk grinders and cone grinders — and 12-pound sledgehammers to do the job. The work requires very intensive use of the hands and arms and ' exposure to vibrations.
In 2010 and 2011, during a hiring surge, Amsted offered employment to applicants
A. Use of Nerve Conduction Test Results
. Amsted contracted with Midwest Occupational Medicine, (“Midwest”), owned by George Dirkers, M.D., to conduct on-site medical exams, which included a medical history questionnaire, measuring vital signs, vision and hearing assessments, a physical examination, and a nerve conduction test (“NCT”).. The NCT measured the conductivity of the median nerve
In its examinations of chipper applicants, Midwest did not have a standard practice to ask applicants about current CTS symptoms and did not perform other tests used to help diagnose CTS. Applicants whose NCT was “abnormal” were put on “medical hold pending further data” regardless of any other information obtained in the examination and were not employed at that time. This was done because Dr. Dirkers believed if a the median nerve was abnormal — was a “sick median nerve” — the individual tested was “right around the corner from” and “right on the verge of’ developing CTS and losing the use of his hand. Amsted’s Mem. Supp. Mot. Summ. J., Ex. 11, Dirkers Dep. 57:13-18 (Doc. 99-12). He believed that 90% of those with a “sick median nerve” would develop CTS and that those with abnormal NCT results “probably already have [CTS],” although he did not have an estimate of the percentage of people applying' to be chippers with abnormal NCT results would actually develop CTS. Id. at 124: 21-24; id. at 125: 17-19. He believed
Midwest conducted no further testing on the applicants on hold to definitively determine whether they had CTS. Instead, it would remove the hold only after the applicant was able to obtain, at the applicant’s own .expense, a “formal, in-depth” NCT that yielded a “normal” result. An NCT is estimated to costs $600-$880 if not covered by health insurance. Amsted has hired applicants who have returned with a normal NCT result;
Applicants who did not return with further medical information were not hired." Applicants who returned with further medical information but without a normal NCT result were not hired even if that 'further medical information showed that they did not have CTS and/or that a doctor' had medically cleared them for work. Some applicants who returned with further medical information were placed by Dr. Dirk-ers on medical restrictions that were incompatible with chipper duties, so they were not hired. The upshot was that Am-sted did not hire any applicants who did not test normal on an NCT regardless of their actual capability of performing the chipper job.
During the relevant" period; Amsted made conditional job offers to thirty-nine applicants — the Claimants — but placed them,on medical hold because of an abnormal NCT result. Amsted 'believed the Claimants could have performed the job of chipper, but could not have done so safely.
, Specifically, twenty-five Claimants (Ab-dallah, . Adams, Allen, Arnold,- Bates, Brown, Cashen,-, Dougherty, Gean, Harmon, Harvey, Henderson, Johnson, W. Lee, Marquardt, McCartney, .McKellar, Patt, Rives, Sanders, Snelson, Spring, Tar-ran, Welch and White) did not provide any further medical information to Amsted. Brown was diagnosed with CTS after Am-sted placed him on medical hold and had corrective surgery,
Fourteen Claimants (Cade, Gibson, Gilbert, Holmes; Humphrey, Jimmerson, A. Lee, Luster, Manning, Munoz, Offerman, Robinson, Rommerskirchen and Stuckey) returned to Amsted with additional medical information, but none of that information included a normal NCT result.
Amsted discontinued using NCT foil pre-employment screening in June 2012.
.The significance of the results, of the NCT performed by the NC-Stat is key. All parties’ experts generally agree on some fundamental principles:
• An abnormal NCT obtained with, the NC-Stat is not proof that an individual has CTS and indicates only a “sick median nerve”;
• An abnormal NCT result does not indicate an individual is incapable of performing the chipper job at that time as long as he is not experiencing CTS symptoms;
• Applicants with an abnormal NCT are at a higher' risk of developing CTS than applicants with a normal NCT result; and
• The NCT performed by the NC-Stat is a poor predictor of who will develop CTS, and most of those with abnormal NCT results and no symptoms will not develop CTS.
Amsted contends that the higher risk of CTS to those with abnormal NCT results — about three to four times higher than those with normal results — is sufficient justification for not hiring those applicants. It claims that it used the NCT to ensure workers it hired could perform their jobs safely. The EEOC, on the other hand, contends that because an NCT has poor positive predictive value (“PPV”)— less than 20% — rejecting all applicants with an abnormal NCT result excludes too many applicants. It points to a 2004 study by its expert Alfred Franzblau, M.D., showing less than a 4% PPV, that is, less than 4% of those with abnormal NCT results developed CTS. Therefore, the EEOC argues, an abnormal NCT result is an inappropriate basis for making employment decisions. The EEOC believes Am-sted was not concerned with worker safety but with reducing workers’ compensation costs.
B. Use of CTS History
In 2010, Montrell Ingram applied to be a chipper and was offered the position contingent upon his passing the medical exam. Ingram’s NCT result was normal. However, he had been diagnosed with CTS in 2006, had undergone surgery to relieve it, and had been released to return to work without restrictions in March 2007. At the time of his application to Amsted, Ingram was physically able to work as a chipper and had no symptoms of CTS. Nevertheless, Dr. Dirkers deemed him medically disqualified based on his prior CTS surgery. Dr. Dirkers believed that because Ingram had developed CTS in the past, he was more likely to develop it again, and that if he needed a second CTS surgery, he had a 72% chance of losing the use of his hands and becoming totally disabled. Because Dr. Dirkers found Ingram medically disqualified, Amsted did not hire him. Amsted also refused to hire Offerman following his CTS diagnosis and corrective surgery.
C. The Litigation
In this suit, the EEOC alleges Amsted violated Title I of the ADA, 42 U.S.C. § 12112(a), when it denied Ingram and the Claimants employment on the basis of their disability rather than an individualized assessment, considering the most current medical knowledge at the time and the best available objective evidence, of whether they could safely perform the chipper job.
Both parties ask the Court now for summary judgment. The Court will describe their arguments as appropriate in its legal analysis.
III. Analysis
The ADA provides, in pertinent part, that an employer shall not “discriminate against a qualified individual on the basis of disability in regard to job application procedures [and] the hiring.. .of employees.” 42 U.S.C. § 12112(a). It further describes discrimination to include “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee.” 42 U.S.C. § 12112(b)(1). “ ‘[B]oth the letter and the spirit’ of the ADA require an individualized assessment of each plaintiffs ‘actual condition,’ rather than a ‘determination based on general information about how an uncorrected impairment usually affects individuals.’ ” Branham v. Snow,
To prove an ADA claim for disparate treatment in violation of 42 U.S.C. §§ 12112(a) and (b)(1), a plaintiff must show: “(1) he is disabled; (2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) the adr verse job action was caused by his disability.” Roberts v. City of Chi.,
Amsted challenges the EEOC’s ability to prove all elements of its case, including that the Claimants were qualified because they did not pose a direct threat. The EEOC contends it not only can prove all elements, but that no reasonable jury could find it has not, and that Amsted is unable to prove the direct threat affirmative defense.
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 an impairment; or (c) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Courts should construe this definition of disability “in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” 42 U.S.C. § 12102(4)(A). Indeed, the 2008 ADA Amendments Act (“ADAAA”), Pub. L. 110-325, 122 Stat. 3553 (2008), aimed “to make it .easier for people with disabilities to obtain protection under the ADA,” and shift the focus of ADA litigation to “whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability.” 29 C.F.R. § 1630.1(c)(4). Each applicant is entitled to an individualized assessment of his particular circumstances rather than an assessment based on how a specific impairment usually affects those who have it. Branham v. Snow,
With' the exception of Ingram, Amsted does not challenge whether the EEOC has sufficient evidence to prove the Claimants were disabled under the “regarded as” prong. With respect to Ingram, Amsted contends it did not regard him as having any impairment because, in light of his normal NCT, it viewed him as capable of performing the chipper job. It further contends that Ingram did not have a record of disability because there is no evidence that his prior CTS substantially limited a major life activity.
The EEOC contends that Amsted regarded Ingram as disabled because it believed that he might, at some future time, develop an actual impairment that would render him incapable of performing the chipper job. It further contends Ingram’s record of CTS and CTS corrective surgery meant he had a record of disability.
1. Regarded-As Disabled
This prong of the definition of disability is designed to “cover individuals rejected from a job because of the myths, fears and stereotypes associated with disabilities.” Amadio v. Ford Motor Co.,
In keeping with the broad view of disability embodied in the ADAAA, the Court finds there is sufficient evidence from which a reasonable jury could find Amsted regarded Ingram as disabled and, in fact, no reasonable jury could find-otherwise. It is true, as. Amsted contends, that it believed- Ingram was unimpaired at the time it failed to hire him for the chipper job. However, it is also true it believed that,- because of his history of CTS and condition following. CTS corrective surgery, Ingram might at some future time develop CTS again and become unable to do the chipper job.. As Judge Wood noted in dicta in her dissent in EEOC v. Rockwell International Corp.,
A word about Rockwell here is warranted, as Amsted cites it in support of the general proposition that it is lawful under the ADA-.to use abnormal NCT results to reject job applicants. Rockwell involved the same, post-offer, pre-employment NCT results at issue in this case. That case, decided before the 2008 ADAAA, found that the defendant’s use of post-offer, pre-employment NCT results to identify and exclude applicants susceptible to CTS complied with the ADA. Id. at 1014. However, that decision did not necessarily condone the use-of NCTs to determine eligibility for employment. Instead, the case turned on whether the plaintiffs were able to produce evidence that they were disabled. Specifically,. they claimed that they .were disabled because the defendants regarded them as having, or being- at risk of having, a condition — CTS—that impaired them generally from the major life activity of working, yet they produced no vocational testimony that they were substantially restricted from, a broad range or an entire class of jobs, which .at that time was required to prove impairment from the major life activity of working. Id. at 1017-18. However, after Rockwell, the ADAAA expanded the definition of disability, rendering Rockwell’s holding of little precedential value.
Because Amsted has conceded it refused to hire Ingram because it feared he posed .a safety risk in light of his prior CTS diagnosis and corrective surgery, no reasonable jury, could fail to find it regarded him as disabled. The EEOC has therefore conclusively established that Ingram is disabled, and it is entitled to summary judgment on this fact. See Fed. R. Civ. P. 56(g). Whether Ingram posed a safety risk will be addressed later, if necessary, in the discussion of his qualifications, or the direct threat defense..
2. Record of Disability
Because the Court has determined that there is no genuine issue of material fact that Ingram was disabled because Amsted regarded him as disabled, it need not consider whether a reasonable jury could find Ingram also had a record of disability.' Further, Amsted has moved to strike part of- Ingram’s. .declaration (Doc. 108), which was offered in support of the EEOC’s argument that he has a record of disability. Because the Court does not address the “record of. disability” question, it will find Amsted’s motion to strike moot.
B. Qualified
Under the ADA, an- individual- is qualified if he, “with, or without reasonable accommodation, can perform the essential functions of the employment position that
“To determine whether a disabled person is qualified, this court considers whether he can perform the essential functions of his job at the time the employer makes the allegedly discriminatory employment decision,” Ammons v. Aramark Uniform Servs.,
As a preliminary matter, the Court declines to consider the question of safety or direct threat in connection with the qualification analysis, instead reserving that question for its analysis of the direct threat affirmative defense. As noted earlier, sometimes whether an individual poses a direct threat to himself or others could render him unqualified for the job. See Felix v. Wisconsin Dep’t of Transp.,
More recently in Felix the Court of Appeals distinguished conduct that renders one unqualified from potential future threats to workplace safety. There, a department of motor vehicle employee with an anxiety disorder had a panic attack at work and was found in a public area “lying on her side, clutching her cell phone, and crying out,” “had marks, scratches, and cuts on her right wrist, some of which were bleeding slightly” and “rolled onto her back and began kicking her legs.” Felix,
The Court of Appeals considered the qualification requirement in Koshinski v. Decatur Foundry, Inc.,
In sum, the foregoing cases establish that the qualification question focuses on the individual’s condition at the time of the defendant’s employment' decision, regardless of what may happen to the individual in the future. That being said, there is no genuine issue of material fact regarding whether Ingram and the Claimants were qualified to be chippers at the time of their applications. The evidence shows the Claimants passed all the tests Amsted put them through except the NCT, but Am-sted admits that the NCT does not indicate an individual’s contemporaneous inability to perform the chipper job but only a prospective, future threat to his health if he were to perform • the job. Even Dr. Dirkers’ restrictions, the only medical restrictions placed on any Of the applicants, were imposed based on his perception of a future threat,’ not a present inability to do the chipper job. His restrictions were also based on a generalized assumption about an abnormal NCT result rather than “an individualized assessment of the individual and the relevant position,” as required under the ADA. Weigel,
This conclusion holds true even for the two Claimants — Brown and Offerman— who may have had CTS at the time of their applications, passed all the tests except the NCT and were therefore qualified under Amsted’s own relevant standards. The fact that, fortuitous for Amsted, they might have had CTS at the time of their application and might have been incapable of performing the job safely will not relieve Amsted of its burden of conducting an individualized assessment of their qualifications at the time of their applications. Any actual incapacity to perform the job at the time of application will be reflected in any damage calculation a jury might award.
Ingram is also entitled to summary judgment on this issue. The evidence shows Ingram did not have CTS, suffered no symptoms, had a normal NCT, was not restricted by his own doctors, and was physically capable of performing the chipper job when he was placed on medical hold. The only evidence that might suggest otherwise is Dr. Dirkers’ restrictions, but, as noted above, he bases those restrictions on his belief that in the future Ingram may pose a danger to himself without any individualized assessment. No reasonable jury could find that. Dr. Dirkers’ speculation about Ingram’s future safety speaks to his current ability to do the job absent CTS or any symptoms. The EEOC is therefore entitled to summary judgment on this fact.. Whether Ingram actually posed a direct threat to his own safety in the future will be addressed in the context, of the. direct threat defense.
C. Adverse Employment Action
The Seventh Circuit Court of Appeals defines the concept of adverse employment action quite broadly under the ADA. Tyler v. Ispat Inland Inc.,
Amsted argues that the Claimants were not subject to an adverse employment action because they were not rejected for employment but were simply put on medical hold- pending receipt of further medical information — a formal, in-depth NCT that many applicants did not provide. It notes employers are allowed to condition offers of employment on passing a medical examination. Amsted argues that the failure of the Claimants to move along in the employment process was because of their failure to obtain the additional NCT as required by the hiring process rather than any discriminatory decision by Amsted not to hire them.
The EEOC argues that Amsted’s placement of Claimants on medical hold was an adverse employment action because it effectively foreclosed future employment as a chipper. It notes that the placement on hold occurred after Amsted had completed the all of the medical tests to which it subjected the Claimants — in essence, after Amsted has completed its application process with the Claimants’ full cooperation. It distinguishes the cases cited by Amsted in which applicants refused to submit to exams or to provide available medical information requested by the employer.'It also points to Amsted representatives’ instructions to Claimants to obtain their own NCTs to “prove [Amsted] wrong” or to obtain reconsideration of Amsted’s decision, suggesting the medical hold was a final decision that it was the claimant’s burden to overturn. Amsted’s Mem. Supp.' Mot. Summ. J., Ex. 11, Dirkers Dep. 42:4-6 (Doc. 99-12).
The evidence shows that the Claimants’ placement on medical hold due to an abnormal NCT result was an adverse employment action because it effectively precluded them from being hired.
D. Causation
An ADA plaintiff must show but-for causation in order to prevail. Hillmann v. City of Chi.,
Amsted argues that the EEOC cannot establish a discriminatory intent, that is, that it discriminated against the Claimants because of their disability. It claims it relied in good faith on Dr. Dirkers’ medical judgment that the Claimants were unable to safely perform the essential functions of the chipper job or had certain medical restrictions and that its human resources department did not even know the reasons Dr. Dirkers placed any applicant on medical hold. It contends its good faith reliance on a medical opinion precludes a finding of discriminatory motive. Additionally, it argues its decision was not based on any disability but on the Claimants’ failure to complete the application process by obtaining and submitting the additional information requested — a normal NCT result.
The EEOC argues that Amsted is only entitled to rely on the judgment of a medical professional to make an employment decision when that judgment is reasonable and in good faith. It cannot escape liability by blindly deferring to a third party and then relying on that third party without satisfying itself that the third party’s decisions are reasonable and comply with the law. Additionally, it argues that Amsted’s application process was completed once it performed its last test, and the Claimants submitted to all tests requested by Am-sted, so there was no failure to complete the application process.
The Court first turns to Am-sted’s position that it relied in good faith on Dr. Dirkers’ medical judgment to place Ingram and the Claimants on medical hold or to impose medical restriction to argue it had no discriminatory intent. It is true that, generally, an employer is entitled to rely on a medical opinion about whether an applicant can perform the essential functions of a job. See Stern v. St. Anthony’s Health Ctr.,
In this case, it is clear that, because of Dr. Dirkers’ broad power to place applicants on medical hold or on restrictions without the involvement of Amsted personnel, Dr. Dirkers was the key decision-maker for Amsted, which then blindly accepted his medical holds and restrictions to refuse employment without further inquiry. The evidence shows Dr. Dirkers
. No reasonable jury could find the Claimants’ failure to complete the medical exam was the reason Amsted effectively removed the Claimants from the applicant pool. As noted above, each claimant submitted to every test Amsted wanted to perform on him, and there is no indication any claimant failed to produce any available medical records. Since there was nothing more Amsted wanted to do to complete the hiring process and no more available medical records it wanted to consider, it is clear Amsted did not fail to hire the employees because they did not complete the medical examination. Instead, Amsted took the Claimants out of the applicant pool because of its perception that they were disabled.
E. Direct Threat Affirmative Defense
Even if the EEOC establishes all the elements of an ADA disparate treatment claim, Amsted may still prevail if it can prove Ingram and the Claimants'were denied employment because they posed a “direct threat.” Felix v. Wisconsin Dep’t of Transp.,
The direct threat defense “requires an individualized assessment, based on reasonable medical judgment, of an employee’s present ability to safely perform the essential functions of his job.” Felix v. Wis. Dept. of Transp.,
(1) The duration of the risk posed by the employee’s condition;
(2) The nature and severity of the potential harm that might result;
(3) The likelihood that the potential harm will occur; and"
(4) The imminence of the potential harm.
Felix v. Wisconsin Dep’t of Transp.,
“The key inquiry when considér-ing whether an employee is a direct threat is ‘not.. .whether a risk exists, but whether it is significant.’” Branham v. Snow,
As a preliminary matter, the Court addresses Amsted’s argument that the direct threat defense only applies to disparate impact claims, which the EEOC, has not brought, and not to disparate treatment claims. In support of its argument, Amsted notes that the ADA expressly mentions a direct threat in the context of describing a cause of action based on a qualification standard that screens out or tends to screen out disabled individuals. See 42 U.S.C. § 12113(a) and (b). This argument is belied by the fact that the Court of Appeals for the Seventh Circuit considers the direct threat defense in the context of disparate treatment claims, placing the burden on the defendant to prove the defense. Bodenstab v. County of Cook,
1, Claimants
The EEOC argues that it is. entitled to summary judgment on Amsted’s direct threat defense as to the Claimants with abnormal NCT results because the undisputed evidence shows Dr. Dirkers did not conduct any individualized assessment of an applicant’s ability to perform the chipper job before it placed him on medical hold or imposed restrictions- inconsistent with the chipper job. Instead, he relied on his subjective belief that an abnormal NCT test indicated the applicant probably had CTS and would pose a danger to himself in the workplace. He declined to make any further inquiry into whether a claimant was experiencing symptoms or perform other medical tests that would indicate a significant threat to himself in the future, and ignored medical evidence from other doctors indicating some Claimants were able to be chippers safely. It believes that in 2011, when Dr. Dirkers formed these medical judgments, the most current medical knowledge was that an abnormal NCT result was not a symptom of CTS, that an NCT was a poor predictor of future CTS
In response, Amsted argues that Midwest- conducted individual examinations of each applicant and, based on its experience treating Amsted employees with CTS for decades, was aware that the. nature of the chipper duties and the abnormal NCT result were risk factors- for CTS. It argues that the risk of harm is of great duration because it exists as long as a worker is exposed to risk factors inherent in the chipper duties. It also argues the risk of harm was severe because it could require surgery and moving from the chipper job. It also notes that someone with an abnormal NCT result is generally three to four times more likely to develop CTS than someone with a normal NCT result and, in hand-intensive jobs like a chipper, is up to twenty timés more likely.
No reasonable jury could find Dr. Dirkers conducted an individualized assessment of each claimant’s ability to perform the job of chipper safely and came to a reasonable conclusion based on the best available medical evidence, the abnormal NCT result.- It is true he performed individualized examinations, but it is equally clear he based his medical holds and restrictions on one single test — the NCT— even though those judgments were not reasonably justified by that test result. An actual individualized assessment of whether .an applicant could perform the chipper job safely in light of his abnormal NCT result would have included testing to determine whether the applicant actually had a condition such as CTS based on methods generally accepted by the medical community (that is, .not a NCT alone), and an assessment of whether that condition was likely to develop further to injure the applicant. See, e.g., EEOC v. Am. Tool & Mold, Inc.,
In light of these, factors, - no reasonable jury could find Amsted was reasonable in relying on Dr. Dirkers’ medical judgment that a claimant otherwise -acceptable- to ■Amsted posed a significant risk, or had a high probability, of causing substantial harm, just because of an. abnormal NCT result. Instead, the factors lead to the unavoidable conclusion that the -risk was relatively, speculative and remote, and certainly not of the magnitude or likelihood to justify refusing to hire a claimant based
2. . Ingram
As for Ingram, the EEOC argues Dr. Dirkers ignored the examination he actually conducted and found him a direct threat solely based on his prior CTS surgery. He relied on a 1994 study by Suzanne Stras-berg, M.D., that the EEOC contends was outdated and could not be applied to Ingram’s situation because his profile did not match those of the study participants, his surgery was completely successful, and he was asymptomatic. It believes that in 2011, when Dr. Dirkers formed this medical judgment, the most current medical knowledge did not justify finding Ingram was a direct threat.
Amsted argues that Dr. Dirkers’ judgment that he posed a direct threat because of his prior CTS surgery was reasonable and was based on his experience with chippers and CTS at Amsted, his experience with secondary CTS surgery in other industries rendering workers disabled, and medical literature. Dr. Dirkers reasoned that if Ingram would be hired as a chipper, because he had developed CTS in an earlier job that was not as taxing as the chipper job, he would get CTS again. Based on at least one study, Dr. Dirkers believed Ingram was likely to be permanently disabled if he had repeat CTS surgery.
The Court believes no reasonable jury could find Dr. Dirkers’ judgment as to Ingram was based on an individualized assessment or relied on the most current medical knowledge. It is .true that the 1994 study arguably provided some scientific support for his opinion that there was a high likelihood of a bad outcome after repeat CTS surgery for some individuals. However, his opinion that Ingram would redevelop CTS was based on his assumptions that, because Ingram had developed CTS before and had surgery, he was especially susceptible to developing it again as a chipper and would someday, in the future, develop it again if he became a chipper. This conclusion he reached without regard to his actual examination of Ingram, including his normal NCT result and lack of any CTS symptoms. Amsted has not pointed to any scientific support, existing at the time of Dr. Dirkers’ judgment, for the reasonableness of this assumption other than the unexceptional proposition that the chipper job requires tasks that are CTS risk factors. The only reasonable conclusion is that Dr. Dirkers’ judgment about Ingram was not a reasonable medical judgment and was instead based on his own subjective views rather than scientific support. Because no reasonable jury could find Amsted complied with the ADA by relying on Dr. Dirkers’ unsupported medical judgment, the EEOC is entitled to summary judgment on this issue.
IV. Conclusion
For the foregoing reasons, the Court:
• DENIES as moot Amsted’s motion to strike parts of Ingram’s declaration in support of summary judgment (Doc. 108);
• GRANTS in part and DENIES in part the EEOC’s motion for partial summary judgment on the issues of liability and the direct threat affirmative defense (Doc. 97). The motion is denied to the extent it relies on the claims by claimants Cashen and Welch. The motion is granted in all other respects;
• GRANTS in part and DENIES in part Amsted’s motion for summaryjudgment (Doc. 98). The motion is granted to the extent it seeks summary judgment on the EEOC’s ADA claims for failure to accommodate and retaliation and on the EEOC’s ADA claims for disparate treatment of claimants Cashen and Welch. The motion is denied in all other respects;
• ORDERS that a telephone status conference be held on December 11, 2017, at 9:30 a.m. to discuss the future progression of this case; and
• DIRECTS the Court to enter judgment accordingly at the close of the case. As a final note,.the EEOC’s filings are submitted in what appears to be 10-point font.
Such small print is exceedingly difficult for the Court’s eyes, especially when the briefs are voluminous. The Court ORDERS thát all future filings in this case must be in Times New Roman font of at least 12-point size.
IT IS SO ORDERED.
Notes
. CTS "is a condition that causes numbness, tingling and other symptoms in the hand and arm. Carpal tunnel syndrome is caused by a compressed nerve in the carpal tunnel, a narrow passageway on the palm side of your wrist,” Mayo Clinic, Carpal tunnel syndrome, Overview, http;//www,mayoclinic.org/ diseases-conditions/carpal-tunnel-syndrome/ home/ovc-20313865 (visited Sept. 15, 2017). This definition is consistent with the more technical definition provided by the EEOC’s expert, Alfred Franzblau, M.D., and essentially undisputed by Amsted: "a physiological condition that concerns entrapment of the median nerve at the wrist and affects and impairs the body’s nervous and musculoskele-tal systems; above all else, CTS is a clinical syndrome, meaning that it is defined and characterized in part by the presence of physical symptoms such as weakness, numbness, tingling, muscle dysfunction, and pain in the arm and hands.” EEOC's Mot. Summ. J., Ex, 15, Franzblau Deck ¶ 2 (Doc. 97-15).
. "The median nerve runs from your forearm through a passageway in your wrist (carpal tunnel) to your hand. It provides sensation to the palm side of your thumb and fingers, except the little finger. It also provides nerve signals to move the muscles around the base of your thumb (motor function).” Mayo Clinic, Carpal tunnel syndrome, Symptoms and causes, http://www.mayoclinic.org/diseases-conditions/carpal-tunnel-syndrome/symptoms-causes/dxc-2
0313870 (visited Sept. 15, 2017).
,, Some of these Claimants were placed on medical hold for other reasons as well, but those concerns were .eventually resolved, leaving the abnormal NCT result as the only reason for their medical holds.
. In the First Amended Complaint, the EEOC also cites the portions of the ADA requiring reasonable accommodation of a disability, 42 U.S.C. § 12112(b)(5)(A), and prohibiting retaliation, 42 U.S.C. § 12203(a). Amsted asks the Court for summary judgment on these claims, and the EEOC has not responded to that request. The Court notes that there are no factual allegations or evidentiary submissions from which a reasonable jury could find in the EEOC's favor on either claim and, accordingly, construes the EEOC’s failure to respond to these parts of Amsted's summary judgment motion as an admission of their merits. Summary judgment will be granted for Amsted on the EEOC’s failure to accommodate and retaliation claims. The Court malees on comment on any prohibited medical examination claim under 42 U.S.C. § 12112(d) as the EEOC did not plead such a claim in its complaint. Consequently, cases like O'Neal v. City of New Albany,
. This approach threatens to run afoul of the notion that it is the plaintiff's burden in an ADA case to prove he was qualified for the job. However, to require an applicant to prove in litigation that he was qualified by showing something more than the employer reasonably demanded in its hiring evaluation at the time of the application would effectively relieve the burden of the employer to conduct an individualized assessment and place the burden on the applicant, contrary to the intent of the ADA. Here, to determine the qualifications for the chipper job, the Court looks to Amsted’s demands, at the time of the employment decision, regarding the current abilities of its applicants, which are not reflected in an NCT result that speaks only to potential future abilities.
. There is no genuine issue - of material fact that Ingram suffered an adverse employment action when he'was not hired.
. Even if the Court is wrong in considering the direct threat defense as an affirmative defense rather than in connection with the qualification question, it does not matter in the end. The Court of Appeals for the Seventh Circuit places the burden of proving that an applicant or employee poses a.direct threat on the defendant in both circumstances. See Bodenstab,