In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-1897 & 00-2034

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant/Cross-Appellee,

v.

ROCKWELL INTERNATIONAL CORP., INTERNATIONAL
UNION OF UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, and
LOCAL 1766 OF UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,

Defendants-Appellees,

and

CAMBRIDGE INDUSTRIES, INC.,

Defendant-Appellee/Cross-Appellant.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 3824--Robert W. Gettleman, Judge.

Argued October 30, 2000--Decided March 8, 2001



  Before RIPPLE, DIANE P. WOOD, and EVANS,
Circuit Judges.

  EVANS, Circuit Judge. Beginning in
1985, the Rockwell International
Corporation required all applicants for
positions at its plant in Centralia,
Illinois, to undergo "nerve conduction
tests." The tests were designed, we are
told, to confirm the presence of
neuropathy--a syndrome characterized by,
among other things, sensory loss and
muscle weakness. Rockwell hoped the tests
would identify job applicants susceptible
to cumulative trauma disorders such as
carpal tunnel syndrome. Accordingly,
Rockwell sent each applicant to a medical
facility where the median nerves in his
or her arms were stimulated with electric
shocks and the travel time of the
electrical impulse from the shock points
to the muscles was recorded. The results
of the tests were given to Rockwell,
which used them in making personnel
decisions.

  Rockwell followed this policy because
its four entry level positions (trimmer,
finisher, final finisher, and assembler),
into which 90 percent of all new hires
were placed, involved "continuing
repetitive motions and/or [the use of]
vibratory power tools" that put workers
at risk for developing cumulative trauma
disorders. Rockwell’s other three
nonskilled positions (molder, multi-
operator, and RTM operator) did not
require repetitive motion or the use of
vibratory power tools, but these were
more desirable bid, not entry level,
positions. Thus, any new hire placed as a
molder, multi-operator, or RTM operator
would be "bumped" from that position by a
more senior employee, as permitted by the
union’s collective bargaining agreement,
and would end up working as a trimmer,
finisher, final finisher, or assembler.
Rockwell therefore rejected all
nonskilled job applicants who scored
outside the normal range on the nerve
conduction test./1

  The Equal Employment Opportunity
Commission brought suit on behalf of 72
job applicants rejected by Rockwell on
the basis of abnormal nerve conduction
test results, alleging that the company’s
policy violated the Americans with
Disabilities Act, 42 U.S.C. sec. 12101,
et seq./2 Rockwell has stipulated that
the 72 job applicants, except for
flunking the test, were qualified for its
entry level positions. We hasten to note
that the applicants did not suffer from
any impairment at the time they were
turned away by Rockwell, but Rockwell
merely regarded them as having an
enhanced likelihood of developing
impairments in the future. The bone of
contention thus became whether Rockwell
discriminated against the job applicants
because it perceived them as suffering
from a disability. See 42 U.S.C. sec.
12102(2)(C).

  After 3 years of litigation, Rockwell
informed the district court that it
intended to move for summary judgment on
the basis that the EEOC had developed no
evidence that Rockwell regarded the
claimants as disabled within the meaning
of the ADA. According to Rockwell, the
parties advised the district court at a
status conference that they would need
time to develop expert vocational
evidence, but that expert ergonomics and
medical evidence would not be relevant to
resolve Rockwell’s motion. The Commission
disputes that it made such a
representation to the court, and our
record does not reflect that the
Commission took any position on the
matter. In any event, on August 25, 1998,
the Commission filed the report of its
vocational expert Dr. Michael Brethauer,
and on December 18, 1998, Rockwell moved
for summary judgment, asking the district
court to exclude Brethauer’s report under
Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). Briefing on
Rockwell’s motion for summary judgment
was completed by January 29, 1999, and
the motion was continued pending an April
27, 1999, Daubert hearing.

  Ten days prior to the Daubert hearing
the Commission sought leave of court to
submit amendments to Dr. Brethauer’s
report, which for the first time relied
upon the findings of Rockwell’s
ergonomics expert, Dr. Michael Smith. The
district court permitted the Commission
to file the amended report and
rescheduled the Daubert hearing for late
May in order to allow time for further
discovery necessitated by the amendments.
Then, a week prior to the rescheduled
Daubert hearing, the Commission moved to
supplement the summary judgment record
with Dr. Smith’s report and deposition
testimony. Dr. Smith’s report, which was
served on the Commission on March 10,
1999, offered opinions only on the
ergonomic risks posed by the four entry-
level Rockwell jobs and the potential for
each to cause work-related
musculoskeletal disorders. Although Dr.
Smith compared the repetition and
duration of upper extremity movements
required by the four Rockwell jobs to the
repetition and duration of upper
extremity movements required by a
selection of jobs in other fields, he did
not render an opinion on the number of
jobs in the Southern Illinois job market
from which the claimants would be
foreclosed due to the impairments
perceived by Rockwell.

  The district court denied the EEOC’s
motion to supplement the record as
untimely. Noting its previous indulgence
of the Commission in granting the request
to amend Dr. Brethauer’s report after the
completion of briefing and its previous
extension of the Daubert hearing, the
district court held that the Commission
should have moved to supplement the
record earlier, rather than sitting on
Smith’s report for almost 3 months.
Subsequently, after hearing testimony at
the Daubert proceeding, the district
court excluded Dr. Brethauer’s report.

  Without any admissible evidence from a
vocational expert, the Commission’s case
was doomed. On August 13, 1999, the
district court granted summary judgment
to the defendants, holding that the
Commission could not prove Rockwell
regarded the claimants as disabled
because there was no evidence that
Rockwell considered them foreclosed from
an entire "class of jobs" or a "broad
range of jobs in various classes" in the
relevant geographic area. The Commission
now appeals this ruling and the district
court’s denial of its motion to
supplement the summary judgment
record./3 We’ll first review the
scheduling decision for abuse of
discretion, Arthur Pierson & Co. v.
Provimi Veal Corp., 887 F.2d 837, 838-39
(7th Cir. 1989), and then the summary
judgment ruling de novo. Skorup v. Modern
Door Corp., 153 F.3d 512, 514 (7th Cir.
1998).

  The district court denied the
Commission’s request to supplement the
summary judgment record in an oral
ruling, so its reasoning is not set out
as fully as it might have been in a
written order. The district judge did
express concern, however, that Rockwell’s
motion for summary judgment had been
fully briefed and awaiting decision for
some time. This was a legitimate concern.
The district court had already allowed
the Commission to amend Dr. Brethauer’s
report after the completion of summary
judgment briefing, which necessitated the
suspension of proceedings so Rockwell
could re-depose him. This delayed, of
course, action on the summary judgment
motion. Then, on May 20, 1999, only a
week before the Daubert hearing, the
Commission moved to supplement the record
with Dr. Smith’s report, which it
received more than 2 months earlier on
March 10, 1999. Permitting the Commission
to supplement the record with that report
would likely have provoked a second
Daubert challenge from Rockwell on the
ground that Smith, an ergonomist, was not
qualified as a vocational expert. See,
e.g., Wilson v. City of Chicago, 6 F.3d
1233, 1239 (7th Cir. 1993) (pathologist
not qualified to testify on subject
within the expertise of a neurologist,
psychiatrist, or physiologist). This
would have caused a substantial further
delay in the disposition of Rockwell’s
summary judgment motion, which was
already growing old. The district court
quite reasonably decided that it didn’t
want to wait any longer. See Trippe Mfg.
Co. v. American Power Conversion Corp.,
46 F.3d 624, 629 (7th Cir. 1995)
("Federal district courts have the
inherent power to administer their
dockets so as to conserve scarce judicial
resources.").

  Moreover, Dr. Smith’s report was
irrelevant to the determination of
Rockwell’s motion for summary judgment
because it expressed no opinion on
vocational issues, the only point of
contention in the motion. The Commission
contends that Dr. Smith’s ergonomic
calculations are relevant to the number
of alternative jobs the claimants could
have performed subject to Rockwell’s
restrictions, and thus are relevant to
whether Rockwell considered the claimants
disabled. But in order to prove Rockwell
considered the claimants disabled under
the ADA, the Commission must have
evidence that Rockwell viewed the
claimants’ condition as a restriction on
their ability to perform "a class of jobs
or a broad range of jobs in various
classes" in the relevant geographic area.
29 C.F.R. sec. 1630.2(j)(3)(i)-(ii).
Although Dr. Smith’s report states the
number of upper extremity movements per
hour required of a warehouse worker at
J.C. Penney and a few other selected
jobs, it addresses neither how many such
jobs exist in Southern Illinois nor what
types of movements are required for the
myriad number of alternative jobs. On
this record, therefore, we cannot say the
district court abused its discretion in
thwarting the Commission’s effort to
hijack Dr. Smith’s ergonomics report for
use as vocational evidence.

  So the EEOC is left without admissible
vocational evidence. It presses on,
however, contending that the district
court erred in granting summary judgment
to Rockwell because it could prove, based
solely upon Rockwell’s perception that
the claimants could not perform jobs
requiring frequent repetition or the use
of vibratory power tools, that Rockwell
considered the claimants disabled. This
logical leap the Commission asks us to
take--from Rockwell’s perception that the
claimants could not perform four specific
jobs to the conclusion that Rockwell
regarded them as foreclosed from many
jobs in Southern Illinois--is a large
one, and requires us to be extra mindful
of the essential elements of the
Commission’s case.

  In order to establish an ADA violation,
the Commission must prove Rockwell
discriminated against the claimants
because it considered them to be
disabled, or suffering from an impairment
which "substantially limits" a major life
activity. Sutton v. United Airlines,
Inc., 527 U.S. 471, 481 (1999). When the
major life activity at issue is working,
as it is in this case, "substantially
limits" means the claimants were
"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. sec.
1630.2(j)(3)(i). A "class of jobs" is the
job from which a claimant was
disqualified, as well as all other jobs
utilizing similar training, knowledge,
and skills within "the geographical area
to which the [claimant] has reasonable
access." 29 C.F.R. sec. 1630.2(j)(3)
(ii)(A)-(B). A "broad range of jobs in
various classes," in contrast, is the job
from which a claimant was disqualified,
as well as all other jobs not utilizing
similar training, knowledge, and skills
within "the geographical area to which
the [claimant] has reasonable access." 29
C.F.R. sec. 1630.2(j)(3)(ii)(A), (C).
Thus, according to the Commission’s own
regulations, its case must include some
proof of the "number and types of jobs"
within the "geographical area to which
the [claimant] has reasonable access."
See Sutton, 527 U.S. at 492-93; Murphy v.
United Parcel Serv., Inc., 527 U.S. 516,
524-25 (1999).

  Rockwell argues that this proof must
take the form of quantitative vocational
data addressing the number of alternative
jobs in the Southern Illinois area
(either within the same class or across
classes) from which Rockwell regarded the
claimants as disqualified. In support of
this contention, Rockwell cites a number
of cases from other circuits that discuss
the absence of such evidence in ruling
against ADA plaintiffs. See, e.g.,
Santiago Clemente v. Executive Airlines,
Inc., 213 F.3d 25, 32 (1st Cir. 2000);
Broussard v. University of California, at
Berkeley, 192 F.3d 1252, 1257-58 (9th
Cir. 1999); Muller v. Costello, 187 F.3d
298, 313 (2d Cir. 1999); Doren v. Battle
Creek Health Sys., 187 F.3d 595, 598 (6th
Cir. 1999); Bolton v. Scrivner, Inc., 36
F.3d 939, 944 (10th Cir. 1994). But
Rockwell points to no authority for the
proposition that such quantitative data
is indispensible to a claimant’s case. In
fact, the EEOC’s interpretive guidelines
make clear that the factors set out in
sec. 1630.2(j)(3)(ii) "are not intended
to require an onerous evidentiary
showing. Rather, the terms only require
the presentation of evidence of general
employment demographics and/or of
recognized occupational classifications
that indicate the approximate number of
jobs (e.g., ’few,’ ’many,’ ’most’) from
which an individual would be excluded
because of an impairment." 29 C.F.R. Pt.
1630, App. sec. 1630.2(j). We therefore
decline Rockwell’s invitation to create a
per se rule that a plaintiff cannot
prevail without quantitative evidence of
the precise characteristics of the local
job market.

  At the same time, this is not one of the
rare cases in which the claimants’
impairments are so severe that their
substantial foreclosure from the job
market is obvious. Compare DePaoli v.
Abbott Lab., 140 F.3d 668, 673 (7th Cir.
1998) (medical evidence of plaintiff’s
inability to make any repetitive motions
with her right hand sufficient to create
triable issue on foreclosure from entire
class of assembly line jobs) with McKay
v. Toyota Motor Mfg., U.S.A., Inc., 110
F.3d 369, 373 (6th Cir. 1997) (evidence
of plaintiff’s inability to use vibrating
power tools and perform repetitive
motions with right hand insufficient to
establish foreclosure from entire class
of manufacturing jobs). Accordingly, the
Commission had to come up with some
evidence of the number and types of other
jobs in Southern Illinois from which the
job applicants would be excluded because
of their perceived impairments. "This is
not an onerous requirement, but it does
require at least some evidence from which
one might infer that [the claimants]
faced ’significant restrictions’ in
[their] ability to meet the requirements
of other jobs." Davidson v. Midelfort
Clinic, Ltd., 133 F.3d 499, (7th Cir.
1998). Mere proof that an impairment
prevented an individual from performing a
particular job for a particular employer
is insufficient to render him or her
"disabled" under the ADA. Sutton, 527
U.S. at 491; Murphy, 527 U.S. at 525;
Baulos v. Roadway Express, Inc., 139 F.3d
1147, 1151 (7th Cir. 1998).

  There is no evidence in this record
concerning the demographics of the
Southern Illinois employment market.
Rather, the Commission asks us to infer
that Rockwell regarded the claimants as
significantly restricted from entering
that market based solely on the fact that
Rockwell perceived them as unable to
perform four specific jobs at Rockwell.
This is precisely the type of inference
we refused to make in Skorup, where we
affirmed summary judgment because an ADA
plaintiff failed to set out general
guideposts from which we could determine
if her impairment foreclosed her from
few, many, or most jobs in a particular
class or in a broad range of classes. 153
F.3d at 515. Similarly, the record before
us in this case does not disclose whether
the claimants’ perceived inability to
perform jobs requiring frequent
repetition or use of vibratory power
tools foreclosed them from any job in
Southern Illinois other than the four
Rockwell jobs. Although the Commission is
not required to calculate an exact
percentage of jobs from which Rockwell
perceived the claimants as foreclosed, it
cannot survive summary judgment in a case
like this with no evidence of the
demographics of the relevant labor
market. The judgment of the district
court is AFFIRMED.

FOOTNOTES

/1 Rockwell’s policy applied only to nonskilled
applicants. The company did hire skilled trade
workers, such as electricians and tool & dye
workers, regardless of their scores on the nerve
conduction test.

/2 The other defendants are Cambridge Industries,
Inc., which acquired the Centralia plant from
Rockwell on August 1, 1994, and the national and
local chapters of the International Union of
United Automobile, Aerospace and Agricultural
Implement Workers of America, which represented
the workers at Rockwell’s Centralia plant. The
claim against these defendants is derivative of
the claim against Rockwell, so we will address
only Rockwell’s arguments. Cambridge also brings
a cross-appeal of the district court’s grant of
partial summary judgment in favor of the EEOC in
which it held that Cambridge is Rockwell’s
successor, but we won’t need to reach that issue.

/3 The Commission does not appeal the exclusion of
Dr. Brethauer’s report.




  DIANE P. WOOD, Circuit Judge, dissenting. I
regret that I cannot join the majority’s opinion,
despite the fact that there are significant
points of agreement between us. The majority and
I agree that, as the opinion puts it, there is no
per se rule for ADA plaintiffs to the effect that
they cannot prevail without quantitative evidence
of the precise characteristics of the local job
market. No one would quarrel with the idea that
such quantitative, statistical evidence may often
be useful, but the question in the case before us
is whether these plaintiffs can survive summary
judgment without it. No, the majority replies,
and it goes on to speculate that statistical
evidence is almost always necessary. I take issue
with both propositions: the conclusion in this
case, and the broader statement. Specifically, on
this record I cannot agree that the Equal
Employment Opportunity Commission had "no"
evidence tending to show what class or range of
jobs was at issue here--that is, the class of
jobs, or broad range of jobs, from which persons
with the assumed disability Rockwell had
identified would be excluded. To the contrary,
the Commission did have evidence, of the most
concrete kind imaginable, and its evidence easily
met the legal standards with respect to this
element. I would find that the EEOC and the
claimants are entitled to a trial on their ADA
claims to resolve the remaining, and very
troubling, issues in this case.

  The debate we are having fits within the
structure of an ADA case as follows. A person
must first either have a disability, or have a
history of a disability, or be regarded as having
a disability, in order to be entitled to
protection under the Act. See Sutton v. United
Air Lines, Inc., 527 U.S. 471, 478 (1999); 42
U.S.C. sec. 12102(2). In the present case,
everyone agrees that the claimants, despite the
score they received on the nerve conduction
tests, had no present disability. Instead,
Rockwell believed that people whose nerve
conduction tests produced scores above a certain
level were more likely to develop cumulative
trauma disorders such as carpal tunnel syndrome.
(Although it is unimportant to the case in its
present posture, I note that this assumption was
at best highly dubious, and certainly a contested
point of fact. And it is not at all clear to me
that as a matter of law the ADA permits an
employer to refuse to hire a person who is fully
qualified to perform certain work, simply because
that individual might at some unspecified time in
the future develop a physical or other disability
that would render her unable at that later date
to meet the employer’s reasonable expectations.
This smacks of exactly the kind of speculation
and stereotyping that the statute was designed to
combat.) Rockwell then took matters one step
further and decided to treat the claimants as if
they already had the feared disorders; as such,
it decided to exclude them from all jobs that
would be unavailable to such people.

  This leads us to the second step. Not every
impairment is a protectible disability under the
statute; the statute covers only those
impairments that substantially limit a major life
activity. Sutton, 527 U.S. at 481; 42 U.S.C. sec.
12102(2); 29 C.F.R. sec. 1630.2(g). When, as in
this case, we are dealing with a perceived
disability rather than an actual disability, the
test becomes whether the employer mistakenly
believes either (1) that an unimpaired person has
an impairment that substantially limits a major
life activity, or (2) that an actual but non-
limiting impairment substantially limits a major
life activity. Sutton, 527 U.S. at 489. The major
life activity at issue here, as is often the
case, is the activity of working. In order to
show that the disability these claimants
supposedly had was one that fell within the scope
of the statute, the EEOC had to show that it left
them "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. sec. 1630.2(j)(3)(i).
The standards applicable to an actual disability
apply equally in a perceived-disability case: the
question is whether, if the claimants had
actually had the disabilities the employer
regarded them as having, the claimants would have
been significantly restricted in their ability to
perform either a class of jobs or a broad range
of jobs in various classes. See Moore v. J.B.
Hunt Transport, Inc., 221 F.3d 944, 954 (7th Cir.
2000). Rockwell, through its motion for summary
judgment, imposed on the Commission the
obligation to produce evidence in opposition to
the motion that would have permitted a trier of
fact to conclude that either a class or a broad
range of jobs was so affected. In my view, the
Commission met that burden.

  It did so in a pragmatic way, rather than
through the use of statistics. It pointed out
that the record contains concrete information
about the characteristics of the jobs Rockwell
thought these people could not perform: that is,
the job requirements of the four specific
positions from which Rockwell excluded them. I
certainly agree with the majority that pointing
to the requirements of a specific job will not
always be enough to show that a broad range of
jobs or a class of jobs is at issue. If the job
in question calls for highly idiosyncratic
skills--the ability to work one specific kind of
machine, the ability to operate one kind of
computer program, or the ability to work a
certain time shift, for example--the fact that a
person does not have those skills would tell a
court little or nothing about whether the set of
qualifications for the job in question was
typical of a class or broad range of jobs. On the
other hand, to take an extreme example at the
other end of the spectrum, if the only
qualification for the job was the ability to read
and write, then it is obvious that a person who
was unsuited for that job would be equally
unsuited for a class or broad range of jobs. In
such a case, it would be absurd to require
statistical evidence showing how many jobs
required literacy. With this much, I believe that
the majority and I are still in agreement. It is
"obvious," to use the majority’s word, that a
broad range of jobs requires literacy, and thus
it would be pointless to insist that a vocational
expert prepare a report showing that 95% of the
jobs in a given area would be foreclosed to a
person lacking such a qualification.

  The problem is that the discussion so far
simply defines the end-points of a line ranging
from the greatest degree of particularity to the
greatest generality of job characteristics. At
some point between those extremes, additional
evidence beyond the criteria of the job(s) from
which the applicant is excluded will become
necessary to show that the exclusion affects an
entire class of jobs or a broad range of jobs.
The problem posed by this case is where to draw
that line, and according to what criteria.

  In my view, the starting point for analysis is
appropriately the job or jobs from which the
employer is excluding the allegedly disabled
individual. A court should look at the job skills
that the employer demands for that job or jobs
and determine how specific to the employer’s own
workplace they are. In general, the more
particular the job requirements, the more
necessary it will be for a plaintiff to present
demographic evidence that shows that those
requirements are in fact found in enough jobs to
matter for ADA purposes. But if the job
requirements include only a list like a high
school diploma, the ability to lift more than 30
pounds, the ability to use power tools, the
ability to perform frequent repetitive motions
(without specifying the particular motion
needed), and regular attendance, they are general
enough to describe a broad range of jobs, or a
certain class of unskilled work. A trier of fact
can tell the difference between generalized
criteria that will cut across a broad range of
jobs, and specialized criteria that are employer-
and workplace-specific, whether or not a
vocational expert tells it how many thousands of
jobs in the relevant geographic area have similar
requirements. It is also appropriate, in this
context, to see how many jobs the particular
employer thought were affected by the perceived
disability: just one or two, or a broad range?
The Commission introduced evidence showing that
90% of the entry-level unskilled jobs at Rockwell
were off limits to the applicants here. That
evidence also gave an objective view of how
widely Rockwell’s exclusionary practice was
sweeping.

  This point can be further illustrated by
comparing the impairments involved in cases in
which this and other circuits have allowed a
claimant to go forward without requiring
demographic evidence with the impairments
involved in cases in which courts have suggested
that demographic evidence would be necessary.
This court has held that an impairment that
prohibited the claimant from making repetitive
motions with her right hand raised a triable
issue of fact as to whether she was disabled, see
DePaoli v. Abbott Laboratories, 140 F.3d 668, 673
(7th Cir. 1998), as did an impairment that
prevented performing overhead work, heavy
lifting, and pushing and pulling out from the
body, see Cochrum v. Old Ben Coal Co., 102 F.3d
908, 911 (7th Cir. 1996). Accord Best v. Shell
Oil Co., 107 F.3d 544, 548 (7th Cir. 1997) (truck
driver whose employer perceived his bad knee as
prohibiting him from driving trucks with a clutch
or with a certain common seat configuration was
regarded as disabled under the ADA); Wellington
v. Lyon County School Dist., 187 F.3d 1150, 1155
(9th Cir. 1999) (plaintiff allowed to go forward
based on evidence of carpal tunnel syndrome which
prevented him from performing work involving
metal fabrication, welding, heavy activities,
carpentry, or the use of a variety of tools to do
maintenance and repairs); see also 29 C.F.R. Part
1630 Appendix sec. 1630.2(j) ("an individual who
has a back condition that prevents the individual
from performing any heavy labor job would be
substantially limited in the major life activity
of working"). In contrast, the cases cited by the
majority in which courts have suggested that
demographic evidence is necessary have involved
much more specialized restrictions. See Santiago
Clemente v. Executive Airlines, Inc., 213 F.3d
25, 32 (1st Cir. 2000) (flight attendant could
not fly on non-pressurized planes; could do a
variety of ground jobs for employer or fly on
pressurized planes); Broussard v. University of
California at Berkeley, 292 F.3d 1252, 1259 (9th
Cir. 1999) (animal lab technician with carpal
tunnel syndrome could not perform duties of
caring for mice in one lab; one of accommodations
employee sought was transfer to working with
different animals); Muller v. Costello, 187 F.3d
298, 313 (2d Cir. 1999) (corrections officer with
asthma precluded from working in smoky
environment; could still work in smoke-free
county jail); Doren v. Battle Creek Health Sys.,
187 F.3d 595, 598 (6th Cir. 1999) (pediatric
nurse prohibited from heavy lifting or working
more than 8-hour shift; no evidence that she was
excluded from any pediatric job by lifting
requirement, or of how many pediatric nursing
jobs in area required longer than 8-hour shift);
Bolton v. Scrivner, Inc., 36 F.3d 939, 943-44
(10th Cir. 1994) (employee faced "limitations" on
standing, walking, and lifting overhead, but
medical report gave no indication of extent of
restrictions). In my view, the disability that
Rockwell perceived the claimants in this case as
having--a disability which, in Rockwell’s
estimation, prohibited these workers from
performing frequent repetitive motions or from
using vibratory power tools--is much more similar
to a restriction on repetitive motion with one
hand or a restriction on overhead work than it is
to a restriction on flying in non-pressurized
planes, or working in a smoky environment, or
caring for certain mice.

  I see nothing to be gained by having vocational
experts routinely appear in ADA cases solely for
the purpose of testifying that a broad range of
jobs require the ability to lift 30 pounds, or
the ability to perform repetitive motions.
Indeed, as noted above, in DePaoli we found that
a disability that prevented the plaintiff from
performing repetitive motions with her right hand
was protected under the Act. Obviously, in this
case we cannot precisely compare the severity of
the disability suffered by the plaintiffs with
that of plaintiff DePaoli, for the simple reason
that these people were not yet disabled at all.
Rockwell merely perceived them as disabled
because it thought that they might become so
impaired by repetitive stress injuries in the
future that they would not then be able to do the
job. For analytic purposes now, as noted above,
we must approach this case as if these plaintiffs
were already suffering from injuries that kept
them away from frequent repetitive motions and
the use of vibratory power tools. Once that is
done, the sufficiency of the Commission’s
evidence to defeat summary judgment becomes
clear.

  I would reverse and remand for further
proceedings, and thus I respectfully dissent.
