Equal Emp't Opportunity Comm'n v. Amsted Rail Co.

280 F.Supp.3d 1141

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.AMSTED RAIL CO., INC., Defendant.

Case No. 14–cv–1292–JPG–SCW

United States District Court, S.D. Illinois.

November 16, 2017

Patrick JoHugh Holman, Jeffrey A. Lee, U.S. Equal Employment Opportunity Commission, Oklahoma City, OK, Grant R. Doty, United States Equal Employment Opportunity Commission, St. Louis, MO, for Plaintiff.

Donald S. Prophete, Ogletree Deakins, et al, Nicole Hininger Howell, Littler Mendelson, PC, Richard E. Jarrold, Constangy Brook & Smith, Kansas City, MO, Robert L. Ortbals, Jr., Constangy, Brooks, Smith & Prophete, LLP, St. Louis, MO, for Defendant.

J. PHIL GILBERT, DISTRICT JUDGE

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. ("Amsted") discriminated against Montrell Ingram and a class of other applicants ("Claimants") for the job of "chipper"—which requires using a hammer or grinder to remove metal protrusions from steel castings—because it regarded them as disabled by carpal tunnel syndrome ("CTS") and/or because they had a record of CTS. The motions addressed in this order are:

• 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 , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Spath v. Hayes Wheels Int'l–Ind., Inc. , 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Chelios v. Heavener , 520 F.3d 678, 685 (7th Cir. 2008) ; Spath , 211 F.3d at 396.

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 , 477 U.S. at 323, 106 S.Ct. 2548 ; Modrowski v. Pigatto , 712 F.3d 1166, 1168 (7th Cir. 2013). Where the non-moving party carries the burden of proof at trial, the moving party may satisfy its burden of production in one of two ways. It may present evidence that negates an essential element of the non-moving party's case, see Fed. R. Civ. P. 56(c)(1)(A), or it may point to an absence of evidence to support an essential element of the non-moving party's case without actually submitting any evidence, see Fed. R. Civ. P. 56(c)(1)(B). Celotex , 477 U.S. at 322–25, 106 S.Ct. 2548 ; Modrowski , 712 F.3d at 1169. If the moving party bears the burden of persuasion on an issue at trial, it must "lay out the elements of the claim, cite the facts which it believes satisfies these elements, and demonstrate why the record is so one-sided as to rule out the prospect of a finding in favor of the non-movant on the claim." Hotel 71 Mezz Lender LLC v. National Ret. Fund , 778 F.3d 593, 601 (7th Cir. 2015). Where the moving party fails to meet its strict burden, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane , 969 F.2d 368, 371 (7th Cir. 1992).

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 who had the necessary skills and experience, but the offers were contingent on their passing a medical examination and other tests. The medical examination aimed, in part, to determine applicants who are at higher risk of developing CTS, one of the risks of jobs that require intensive use of the hands and exposure to vibrations.¹

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 nerve² using a NeuroMetrix NC–Stat device ("NC–Stat"). On Dr. Dirkers' suggestion and after discussions with him and Richard T. Katz, M.D. in 2003 Amsted approved using the NCT to identify applicants for the chipper position who were predisposed to developing CTS, although Amsted did not review the medical literature Dr. Dirkers relied on to recommend using the test for that purpose. Amsted was concerned over the number of workers compensation claims by chippers. After those discussions, Amsted purchased the NC–Stat machine for Midwest to use.

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 these workers could perform the essential functions of the chipper job but could not do so safely because of their abnormal NCT results. Amsted was aware that applicants were being placed on hold because of an abnormal NCT result and authorized this use of the NCT results.

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. Dirkers on medical restrictions that were incompatible with chipper duties, so they were not hired. The upshot was that Amsted 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 (Abdallah, Adams, Allen, Arnold, Bates, Brown, Cashen, Dougherty, Gean, Harmon, Harvey, Henderson, Johnson, W. Lee, Marquardt, McCartney, McKellar, Patt, Rives, Sanders, Snelson, Spring, Tarran, Welch and White) did not provide any further medical information to Amsted. Brown was diagnosed with CTS after Amsted 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.³ Amsted placed medical restrictions on eight of those returning Claimants (Cade, Gibson, Gilbert, Humphrey, A. Lee, Munoz, Rommerskirchen and Stuckey) that were incompatible with chipper duties. Five of those returning Claimants (Jimmerson, Holmes, Luster, Manning and Robinson) presented medical information indicating they did not have CTS, but Amsted did not release its medical hold. Offerman was diagnosed with CTS after Amsted placed him on medical hold. He had corrective surgery, but Amsted did not hire him.

Amsted discontinued using NCT for 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";•

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