EEOC v. Rockwell International Corp.

• Decision Date: 08 March 2001
• Docket Number: Nos. 00-1897,s. 00-1897
• Citation: 243 F.3d 1012
• Parties: (7th Cir. 2001) 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. & 00-2034
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1012

243 F.3d 1012 (7th Cir. 2001)

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.

Nos. 00-1897 & 00-2034

In the United States Court of Appeals For the Seventh Circuit

Argued October 30, 2000

Decided March 8, 2001

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