Opposition Brief — Toyota Motor Manufacturing, Kentucky, Inc. v. Williams

No. 00-1089

IN THE

Supreme Court of the United States

TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC.,

Petitioner,

v.

ELLA WILLIAMS,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

|

ROBERT LESLIE ROSENBAUM

Counsel of Record

ROSENBAUM & ROSENBAUM, P.S.C.

300 Lexington Building .

201 West Short Street

Lexington, Kentucky 40507

(859) 259-1321

165545 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

TABLE OF CONTENTS

Page

Table of Cited Authorities ..........cccccecees il

P<). bie eeeeiesaeebees ceees estes he l

Relevant Statutes and Regulations .............. l

Ue ror re a ee rere 3

District Court Proceedings .................... 6

Sixth Circuit Proceedings ...................4.. 7

Toyota’s Petition For Writ Of Certiorari Should Be

i <¢vnsec CeeeensPGhehGhes5base ets ber 12

ee en Ee ea 20

il

TABLE OF CITED AUTHORITIES

Page

Cases: ;

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999)

SICTTTTTTitTT 18

Bolton v. Scrivner, Inc., 36 F.3d 939 (10th Cir. 1994)

00000 0sene sees 656 666 6 hee mie een 17

Bragdon v. Abbott, 524 U.S. 624 (Ree 1,9, 11,13

Broussard v. University of California, at Berkeley,

192 F.3d 1252 (9th Cir. 1999) ............... 17

Chanda v. Engelhard/ICC, 234 F.3d 1219 (11th Cir.

BOOD) oo 00000 00.9060 nee 15, 16

Colwell v. Suffolk County Police Dept., 158 F.3d 635

(26 Cap. ISDE)... ov cescccccs enue 17

Cravens v. Blue Cross And Blue Shield, 214 F.3d

otk fe >) eee 15

Duncan v. Washington Metro. Area Transit

Authority, 201 F.3d 482 (D.C. Cir. 2000) ...... 17

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (Sth

Coe. BDDG) . 000000000 0n eee 17

Gutridge v. Clure, 153 F.3d 898 (8th Cir. 1998) .. 17

ill

Cited Authorities

Halperin v. Abacus Technology Corp., 128 F.3d 191

(4th Cir. 1997) 2.0.0... cece cece eee eee ees

Hilburn v. Murata Electronics North America, Inc.,

181 F.3d 1220 (11th Cir. 1999) ..........055.

McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d

369 (6th Cir. 1997) 2... 6.6 e eee ee es

Olson v. General Elec. Astrospace, 101 F.3d 947

(3d Cir. 1996) ..... 0. cece cece eee e eee eeees

Quint v. A.E. Staley Mfg. Co., 172 F.3d 1 (Ist Cir.

MED cc cccccccccccccccccccccccccccsccces

Santiago Clemente v. Executive Airlines, Inc., 213

F.3d 25 (Ist Cir. 2000) ..... 6... cece eens

Skorup v. Modern Door Corp., 153 F.3d. 512 (7th

SC acca eeddeccccccscccccecoccece

Snow v. Ridgeview Medical Center, 128 F.3d 1201

(8th Cir. 1997) 20... 6c cece cece eee eee eee

Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318

(1th Cir. 1998) 2.0.6... cece eee eee eee

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)

LPO TT TTT TTT TTT. 1, 7, 11, 14,

Page

16

17

17

15

17

17

16

15, 19

iv

Cited Authorities

Page

Statutes:

42 U.S.C. §§ 12101, et seg. ... 6... cece cence l

42 U.S.C. § 12102(2) .. 0... cece ee eee ee eee 8,19

42 U.S.C. § 12102(2MA) .... eee eee eee eee l

42 U.S.C. § 12102(2)(B) ... «2. e eee eee eee 8

42 U.S.C. § 12102(2M(C) .. 0... ee eee eee ees 8

42 U.S.C. § L2TV1(B) 2... eee eee eee ees 2

42 U.S.C. § L2TLUD) «6. ce eee cece eee renee 2

42 U.S.C. § LZTTI(1O) 2... eee eee eee 2

42 U.S.C. § 12112f(a)” .. we eee eee eee 2,9, 18

42 U.S.C. § 12112(bM SMA) .... 6.6 eee ee ee eee 3

Other Authorities:

29 C.F.R. § 1630.21) . 0... eee ee ee ee eee eee 1

29 C.F.R. § 1630.24) Mii)... 6 oe ee ee 2

29 C.F.R. § 1630.2(j(2)Mi-ill) . 2 ee eee es 2

29 C.F.R. § 1630.2(j(3)) .. ee cee 2, 16

t

l

INTRODUCTION

The Sixth Circuit has ruled that Ella Williams is

“disabled” in the major life activity of performing manual

tasks without regard to whether she is disabled concerning

the major life activity of working. Toyota Motor

Manufacturing, Kentucky, Inc. (“Toyota”) misstates the

ruling of the Sixth Circuit and argues for an interpretation

of the Americans with Disabilities Act of 1990 (“ADA”),

42 U.S.C. §§ 12101, et seg. which would do away with the

requirement that disability determinations be made on an

individual basis and would further require that all ADA

claimants be disabled as concerns the major life activity of

working, contrary to the established precedent of Bragdon

v. Abbott, 524 U.S. 624 (1998) and Sutton v. United Air Lines,

Inc., 527 U.S. 471 (1999).

RELEVANT STATUTES AND REGULATIONS

42 U.S.C. § 12102(2)(A)' states disability? means “with

respect to an individual—(A) a physical or mental impairment

that substantially limits one or more of the major life

activities of such individuals; . . .”

29 C.F.R. § 1630.2(i) identifies major life activities such

as performing manual tasks or working.

Impairments are considered to substantially limit major

life activities if the individual is “Significantly restricted as

1. Hereafter reference will be made only to the appropriate

section of the ADA without reference to the Title number.

2. Only definitions of disability relevant to this case will be

addressed.

2

to the condition, manner or duration under which an

individual can perform a particular major life activity as

compared to the condition, manner, or duration under which

the average person in the general population can perform

that same major life activity.” 29 C.F.R. § 1630.2(j)(1 (ii).

Three factors to be considered in determining whether

an impairment substantially limits a major activity are:

(1) nature and severity, (2) duration, and (3) permanent or

long-term impact. 29 C.F.R. § 1630.2(j)(2)(i-iii).

As concerns only the major life activity of working,

regulations state that in order to be substantially limited, the

individual must be 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. Importantly, the

regulation provides only as concerns working, “The inability

to perform a single, particular job does not constitute

a substantial limitation in the major life activity of working.”

29 C.F.R. § 1630.2(j)(3 i).

The ADA, § 12112(a), prohibits discrimination against

qualified individuals with disabilities because of disability

in regard to terms, conditions, and privileges of employment.

§ 12111(8) provides that a qualified individual with a

disability means a disabled individual who, with or without

reasonable accommodation, can perform the essential

functions of the employment position that such individual

holds or desires.

“Reasonable accommodation” is not defined by a

limiting definition but instead requires employers to

accommodate disabled individuals unless to do so would

constitute an “undue hardship.” §§ 12111(9) and (10).

3

Importantly, an employer engages in prohibited

discrimination when the employer fails to make reasonable

accommodations to known physical or mental limitations

of otherwise qualified individuals with a disability.

§§ 12112(b)(S)(A).

FACTS

Ella Williams is 41 years of age, is married, and has

children. She reads at the ninth grade level, and her

mathematical skills are at the tenth grade level. She described

her vocational background as “Production work and factory

work’s (sic) what I’ve known all my life.”

She was first employed by Toyota, an automobile

manufacturer, in 1990 and was able to perform her job in

the paint department. Later, she was transferred to the power

train group which was an assembly line job where she helped

build car engines using pneumatic tools. This job caused her

to develop carpal tunnel syndrome (“CTS”), and after being

off work for several months, her physician returned her to

work with medical restrictions on her activity.

In 1992, those restrictions were to do only light work,

no lifting of more than 20 pounds occasionally and 10 pounds

frequently, avoid constant repetitive use of both hands and

arms, including flexion and extension of the wrists and

elbows, avoid overhead work, and no use of pneumatic tools.

Ms. Williams filed a workers’ compensation claim against

Toyota which was settled on the basis of a 20% occupational

impairment.

In 1993, Ms. Williams sued Toyota under the ADA for

not accommodating her disability by assigning her work she

4

could perform. That lawsuit was settled, and Ms. Williams

returned to work at Toyota in December, 1993.

When she returned, she was assigned to quality control

inspection operations in the body paint inspection group.

These jobs did not require as much physical exertion as

assembly line jobs and were not typical production line

positions. They were the least physically demanding jobs in

the plant.

There were four jobs in the new group: (1) assembly

paint, (2) paint second inspection, (3) shell body audit, and

(4) ED surface repair. Ms. Williams was required to perform

only two of the four jobs; paint second inspection and

assembly paint. These were primarily visual inspection jobs

although some manual activity was required.

In the late summer or fall of 1996, Ms. Williams was

asked to cross-train on the shell body audit job, and she

agreed. The shell body job required her to soak a sponge in

a highlight oil and wipe down part of the metal shell body of

a car. A part of 450 to 500 car shell bodies had to be wiped

down per shift with the allotted job time being about

58 seconds on each shell body. This job was more physically

demanding than the paint inspection jobs she previously had

been doing. The shell body job caused pain to her, and she

sought care from Industrial Health Services, Inc. (“IHS”)

which is Toyota’s on-site occupational medicine services

provider. IHS doctors diagnosed Ms. Williams as suffering

from (1) myotendonitis bilateral periscapular, an inflamation

of muscles and tendons around both of her shoulder blades,

(2) myotendonitis, (3) myositis bilateral forearms with nerve

compression causing media nerve irritation, and (4) thoracic

outlet compression which is a condition causing pain in the

5

nerves leading to the upper extremities. Additionally, IHS

doctor David Price diagnosed her as suffering from pan

myositis which is a general irritation of the trapezius, biceps,

and triceps muscles. Dr. Price confirmed and continued

Ms. Williams earlier medical restrictions caused by her CTS

and further restricted Ms. Williams’ activity by prohibiting

any work above chest level, any extended reach or repetitive

rotary or lateral movements of the head/neck. It was felt that

Ms. Williams’ problems were related to her employment.

Ms. Williams further sought treatment from Dr. Mark

Smith, a board-certified orthopedic surgeon, who diagnosed

her as suffering from myofacial pain caused by work.

He restricted her from repetitive activity and stated that she

should not be wiping highlight oil on from 450 to 500 auto

shell bodies per shift because this would aggravate her

condition. Ms. Williams’ condition is objectively manifested

by knotting and spasms of the muscles which Dr. Smith

treated by trigger point injections. There also was an MRI

showing peritendinitis of muscles surrounding the shoulder

joint. Ms. Williams stated the shell body job caused the

following symptoms:

My shoulder starting getting some nerve—what

they—it’s like a tingling electricity in my arms

again. My arms going to sleep, going dead at

night, waking me up. My neck went to hurting

me a lot. My neck just felt lazy, went to

aching, and having pains in the back of my neck.

My shoulders when raising my arms would seem

like they were tiring out. They just-they were

giving out when I would be trying to work. And

at lunch every day, it got to the point to where

my arms was just like going to sleep again on

6

me. It’d take me an hour after we started back up

working to get back to where I could do the job like

I needed to.

Ms. Williams’ impairment affects activities of daily living

and curtails activities. She needs help in dressing herself.

She presented testimony from a vocational expert, William

J. Weikel, who opined that as a result of her medical restrictions,

she has lost access to 50% to 55% of the jobs in the economy.

Although Ms. Williams had been a successful Toyota

employee for the three years approximately since her return in

1993, Toyota informed her that she would have to do the shell

body job or be fired. She attempted to comply and thereby was

injured further to the point she could not continue working.

When she could not work, Toyota fired her under the guise that

she had voluntarily resigned her employment by not soming to

work.

DISTRICT COURT PROCEEDINGS

Toyota requested the District Court to enter a summary

judgment in favor of Toyota to the effect that Ms. Williams

was not “disabled.” The District Court agreed and specifically

held that Ms. Williams was not disabled as concems the major

life activity of performing manual tasks. The District Court S

logic was that Ms. Williams’ evidence of substantial limitations

in performing manual tasks “are irretrievably contradicted by

Plaintiff s continual insistence that she could perform the tasks

in assembly and paint inspection without difficulty; positions

requiring manual tasks.”

7

SIXTH CIRCUIT PROCEEDINGS

In the Sixth Circuit, Ms. Williams advanced the

proposition that she could be entitled to the protection of

the ADA by proving she was disabled as concerns performing

manual tasks and was not required to prove she was disabled

as concerns the major life activity of working. She argued

she obviously was substantially limited in the major life

activity of performing manual tasks, and it was not necessary

that she also prove she was disabled as concerns working.

The Sixth Circuit agreed.’

The Sixth Circuit noted this Court in Sutton v. United

Air Lines, Inc., 527 U.S. 471, 492 (1999) cautioned and

mentioned the EEOC has found that the major life activity

of working should not be considered if the individual

is substantially limited in any other major life activity.

App. Sa.

In this case, the plaintiff's claim is not based

solely on the difficult concept that she is disabled

as to work generally, but rather, includes the rather

simple concept that she is disabled as to

performing manual tasks because she suffers from

a severe impairment to her limbs, shoulders and

neck that seriously reduces her ability to perform

the manual tasks that are job-related.

Id. at Sa.

3. The Sixth Circuit Opinion is appended to Toyota’s Petition,

and.Ms. Williams will use the appendix pagination of the Opinion

as found in Toyota’s Petition when referring to the Sixth Circuit

Opinion.

8

Therefore, having concluded that Ms. Williams is

substantially limited in performing manual tasks, the Sixth

Circuit saw no need to determine whether she was

substantially limited as to the major life activities of lifting

or of working. /d. at 5a. Likewise, the Sixth Circuit found it

unnecessary to consider whether Ms. Williams made a

satisfactory showing of being disabled under the alternate

definitions of disability; § 12102(2)(B), having a record of an

impairment or § 12102(2)(C), being regarded as having such

an impairment. /d. at 6a.

Tre Sixth Circuit was well aware that in order for Williams

to be disabled, the involved impairment must substantially limit

or significantly restrict the major life activity involved.

The words, substantially limits, were emphasized by the Sixth

Circuit in its recitation of the impairment definition of disability.

§ 12102(2). App. 3a. It noted that the regulations require that

impairments “substantially limit.” Jd. at 3a. Ms. Williams’

impairment is described as “a severe impairment... .” /d. at Sa.

The Sixth Circuit specifically refers to the “significantly

restricted” language found in the regulation and concludes

that Ms. Williams suffers from an actual impairment

“that substantially limits a major life activity . . .” /d. at 6a.

As to the District Court’s finding that Ms. Williams was

not disabled because she could perform some manual tasks, the

Sixth Circuit said.

The fact that Williams can perform a range of

isolated, non-repetitive manual tasks performed over

a short period of time, such as tending to her personal

hygiene or carrying out personal or household

chores, does not effect (sic, should be affect) a

determination that her impairment substantially

9

limits her ability to perform the range of manual

tasks associated with an assembly line job.

Id. at 4a, parenthetical statement added.

This is consistent with the holding of Bragdon that

“The Act addresses substantial limitations on major life

activities, not utter inabilities.” Jd. at 641. An individual does

not have to be totally disabled before he is entitled to the

protection of the ADA.

The Sixth Circuit was concerned as to whether

substantial impairment in the major life activity of

performing manual tasks is sufficient to invoke the protection

of the ADA without reference to whether that impairment

affected working. Therefore, the Sixth Circuit required that

Ms. Williams demonstrate her performing manual tasks

disability “affects” her work. Jd. at 4a and 6a.

Of course, it is obvious that an individual with

Ms. Williams’ restrictions will be affected in factory,

production or other employment requiring repetitive manual

tasks. It is appropriate that the impairment claimed always

“affect” or be related to employment because this application

of the ADA only relates to employment. § 12112(a). The ADA

does not prohibit disability discrimination in social settings,

and the Sixth Circuit takes care to emphasize that when

disability is based upon a substantial impairment in a major

life activity other than working, then there still must be a

work or employment connection or “affect” between the

non-working disability and the employment. This is the

requirement of § 12112(a).

10

At no place does the Sixth Circuit suggest that an ADA

disability exists simply because work is “affected” without

regard to whether the impairment constitutes a substantial

limitation of the major life activity of performing manual

tasks.

The Sixth Circuit dissent deserves mention because it is

the blueprint for Toyota’s Petition herein.

This dissent mistakenly characterizes Ms. Williams’

functional limitations as being a subset of abilities related

to working. /d. at 1 la.

Certainly, this is true, but the description is not complete.

The limitations affect activities of daily living, and there was

no attempt by Toyota to prove Ms. Williams was not

substantially limited in performing manual tasks as compared

to the general population.

The dissent asserts the majority opinion “conflates

(and erodes)” the standards for demonstrating substantial

limits on working and on performing manual tasks.

Williams has not shown a substantial limitation

in working, because the inability to perform a

single, particular job is not a substantial

limitation, and she has not demonstrated that there

is a broader class of jobs from which her

impairment disqualifies her. Nor has Williams

shown a substantial limitation in performing

manual tasks, because her limitation is mostly

confined to a subset of job-specific tasks.

Id. at 11a.

1]

Aside from the erroneous statement that no evidence was

furnished as to disqualification for a broad range of jobs,

William J. Weikel says loss of access to 50% to 55% of jobs;

ironically the dissent conflates the requirements to be

disabled for performing manual tasks by simultaneously

requiring substantial limitation in the major life activity of

working.

The dissent says there is no performing manual tasks

disability because Ms. Williams’ limitation is only for a

subset of job-specific tasks which is contrary to the record.

Hence, the dissent would say a more substantial limitation

in working is necessary before an ADA disability can be

found in a major life activity other than working. In other

words, all impairments must constitute a substantial

limitation in working before these non-working impairments

can be the basis of an ADA impairment.

This is simply the wrong analysis; Bragdon, Id. at 631.

Also, the consideration of the major life activity of working

prior to or at lease in conjunction with consideration of other

major life activities such as performing manual tasks is

incorrect. Sutton, Jd. at 492. Impairment in major life

activities other than working should be considered first.

Finally, the Sixth Circuit rules Ms. Williams is disabled

as defined by the ADA and returns the case to the District

Court for trial only on the issue of whether Toyota failed to

reasonably accommodate her disability. App. 6-7a.

12

TOYOTA’S PETITION FOR WRIT OF

CERTIORARI SHOULD BE DENIED.

Toyota’s Petition claims the question presented is

whether individuals whose impairments preclude them from

performing only a narrow category of tasks associated with

specific jobs are entitled to ADA protection. Petition, p. 1.

Although not presented as separate questions, Toyota

also contends the Sixth Circuit committed serious error

(1) by ignoring statutory and regulatory requirements that the

impairment substantially limit a major life activity and (2) by

violating what is incorrectly stated to be an almost universal

rule that an inability to perform a single particular job is not

entitled to ADA protection, regardless of the major life activity

involved.

Toyota misstates the holding of the Sixth Circuit when

Toyota contends the Sixth Circuit found ADA disability based

solely upon an impairment from performing only a limited

number of tasks associated with a specific job. Instead, the

Sixth Circuit found a substantial limitation of the major life

activity of performing manual tasks which was evidenced by

Ms. Williams’ inability to perform the physical functions

required by her particular job. The major life activity of working

was not involved, and Toyota’s contention only has relevance

when one is considering the major life activity of working.

The Sixth Circuit did not lower the standard of determining

an ADA disability from one which requires that the impairment

substantially limit a major life activity to one where it is required

only that the impairment only “affect” a major life activity.

13

Instead, the Sixth Circuit held that regardless of what the major

life activity was, the impairment must substantially limit that

major life activity, and further, if the major life activity is one

other than working, there must be a connection between the

substantially limited major life activity and working; i.e., the

impaired life activity must “affect” work.

Toyota misstates the law when it claims that all Courts have

held the inability to perform a single particular job does not

constitute an ADA disability, regardless of the major life activity

being considered.

Toyota’s Petition, p. 3, misstates the Sixth Circuit

holding to be that even though Ms. Williams could perform

a broad range of manual tasks, she is disabled because

“ “her impairment substantially limits her ability to perform

the range of manual tasks associated with an assembly line

job.’ /d. at 4a. (emphasis added).” Toyota’s quoted language

is taken out of context because the Sixth Circuit in the first

part of the sentence partially quoted by Toyota is simply

noting that the mere fact Williams can perform a range of

isolated, non-repetitive manual tasks is not relevant to

determination of whether she is ADA disabled. Of course,

this is the holding of Bragdon v. Abbott, 524 U.S. 624 (1998)

which specifically he's that in order for a substantial

limitation to exist, it need not be complete or insurmountable,

only significant. Bragdon, Id. at 641.

Toyota misstates the Sixth Circuit holding to be, “that

Williams could demonstrate a substantial limitation on her

ability to perform manual tasks by simply showing that her

impairment ‘affected’ her ability to work—even if the

impairment did not otherwise substantially limit her in the

major life activity of working.” Petition p. 7. The Sixth

14

Circuit held that in order for Ms. Williams to be disabled as

concerns performing manual tasks, she must be substantially

limited in performing manual tasks. In fact she did not have

to be substantially limited in working, and the Sixth Circuit

never considered whether she was substamially limited in

working. Only Toyota believes one has io be disabled for

working before there can be disability in another major life

activity.

This is an important and perhaps subtle point. Individuals

can be disabled as concerns major life activities other than

working. In such cases, it is necessary that there be a causal

link or nexus between the non-working disability and the

employment before ADA protection attaches because the

ADA only prohibits discrimination in employment. In fact,

Toyota is arguing here that unless the impairment, whatever

it might be, substantially limits the major activity of working

instead of merely “affecting” the major life activity of

working, there can be no disability. To follow Toyota s

reasoning to its logical conclusion is to say that any disability

which does not constitute a substantial limitation on the

major life activity of working, but instead, merely affects

working, is not entitled to protection under the ADA.

The end result, if Toyota’s reasoning is adopted, is that the

only major life activity which can constitute an ADA

disability is the major life activity of working.

Needless to say, Toyota’s contentions are wrong and

have been expressly rejected not only in the regulations but

in Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999).

To the extent Toyota contends that it is legally

established that CTS or like impairments cannot constitute

ADA disabilities, such a contention is incorrect. This is

15

because each disability determination is made on an

individualized basis. Sutton, Jd. at 483. Section 12102(2)

notes that disability is determined “with respect to an

individual.” CTS has been determined to be an impairment

creating an ADA disability. Quint v. A.E. Staley Mfg. Co.,

172 F.3d 1 (1st Cir. 1999) and Cravens v. Blue Cross And

Blue Shield, 214 F.3d 1011 (8th Cir. 2000).

Toyota's citation of case precedents does not support its

contentions in this case. This is because the cited cases deal

with individualized disability determinations which cannot

be mechanically applied to individuals other than those

involved in the particular cases. Additionally, Toyota is not

sensitive to the major life activity at issue which is performing

manual tasks.

At page 10 of the Petition Toyota relies upon Chanda v.

Engelhard/ICC, 234 F.3d 1219 (11th Cir. 2000). In that case

the claimant, a professional engineer was employed as a

quality control technician which required cutting

honeycomb-board with a utility knife and using a metal

scraper to obtain test samples. He developed mysositis which

is an inflamation of the wrist and forearm occurring on the

right arm. He was discharged because he could not perform

the cutting function of his job. He claimed a limitation on

the major life activity of performing manual tasks including

turning handles, grasping, holding or lifting objections, using

a computer or writing with a pen. Yet, he could attend school

and take classes which required the taking of notes, could

perform the functions of a quality control engineer, which

involved writing and computer use, and was able to conduct

the activities of daily living. This evidence was held to not

create an issue of whether Chanda was substantially limited

in performing manual tasks. Interestingly, the instant case

16

is discussed in Chanda which notes that “the case-by case

nature of the disability determination” makes the facts of

the instant case distinguishable from Chanda. Id. at 1224.

In fact, Chanda supports the Sixth Circuit result in this case

by noting how severe Ms. Williams’ impairment is.

At page 10 of Toyota’s Petition, it cites Hilburn v.

Murata Electronics North America, Inc., 181 F.3d 1220

(11th Cir. 1999) in which the claimant stated that the only

thing she was told that she could not do was lifting and she

never identified specifically or by class any major tasks

which she was unable to perform. /d. at 1228. In other words,

this is acase where no evidence of impairment was presented.

At page 10 of the Petition, Toyota relies upon Snow v.

Ridgeview Medical Center, 128 F.3d 1201 (8th Cir. 1997).

This is also a “no evidence” case, “appellant has presented

no evidence .. .” Jd. at 1207.

At page 15 of the Petition, Toyota cites numerous cases

for the proposition that an inability to perform in a single,

particular job does not constitute a substantial limitation in

the major life activity of working. Ms. Williams agrees with

this general statement and notes that this result would be

required by 29 C.F.R. § 1630.2(j)(3)(i).

Ms. Williams agrees that such an inability will not

suffice to prove a substantial limitation on the major life

activity of working, but Ms. Williams points out that a

different major life activity, performing manual tasks, is

involved here, and there is not and probably could not be in

a logical sense such a requirement for the major life activity

of performing manual tasks.

|

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17

A brief review of Toyota’s cited cases shows they are

not relevant to the facts of Ms. Williams case. Colwell v.

Suffolk County Police Dept., 158 F.3d 635, 644 (2d Cir.

1998); “Evidence was insufficient to support finding that

any of the officer’s impairments were substantial, .. .”;

Santiago Clemente v. Executive Airlines, Inc., 213 F.3d 25,

30 (Ist Cir. 2000), “Impairment not shown to have

substantially inferred with her performance of any of the

identified major life activities.”; Olson v. General Elec.

Astrospace, 101 F.3d 947 (3d Cir. 1996), only showed

limitation for a single job and claim actually was denied

because no evidence showed claimant to be “regarded as

disabled.”; Halperin v. Abacus Technology Corp., 128 F.3d

191 (4th Cir. 1997), no evidence of substantial limitation;

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (Sth Cir. 1995),

no evidence; McKay v. Toyota Motor Mfg., U.S.A., Inc., 110

F.3d 369 (6th Cir. 1997) only deals with major life activity

of working; Skorup v. Modern Door Corp., 153 F.3d. 512

(7th Cir. 1998), Plaintiff stated she could physically perform

job, no medical proof of severe restriction, and only proof

of inability to perform particular job; Gutridge v. Clure, 153

F.3d 898 (8th Cir. 1998), claimant was computer service

technician who had to lift computer equipment but could

not and found other employment in a job which did not

require lifting, held, no evidence of substantial limitation as

to working; Broussard v. University of California, at

Berkeley, 192 F.3d 1252 (9th Cir. 1999), no evidence of

impairment as to working; Bolton v. Scrivner, Inc., 36 F.3d

939 (10th Cir. 1994), no evidence presented; Standard v.

A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998), no

evidence presented; and Duncan v. Washington Metro. Area

Transit Authority, 201 F.3d 482 (D.C. Cir. 2000), no evidence

presented.

18

Il.

The Sixth Circuit decision does not conflict with this

Court’s recent precedent concerning the ADA.

Toyota claims the Sixth Circuit has held an ADA

disability may be proven simply by showing that an

impairment merely “affects” a major life activity instead of

the impairment being required to substantially limit or

significantly restrict a major life activity, citing A/berison's,

Inc. v. Kirkingburg, 527 U.S. 555 (1999). Petition p. 18.

As noted previously, Ms. Williams agrees that the

impairment must substantially limit the major life activity,

and Ms. Williams agrees that Albertson s so holds.

The Sixth Circuit opinion also is in conformity with this

principle.

However, Toyota misstates the Sixth Circuit holding to

be, “a mere effect—not a significant restriction—on the major

life activity of working is enough to demonstrate a substantial

limitation on performing manual tasks.” Petition p. 21.

The Sixth Circuit found that Ms. Williams was

substantially limited in the major life activity of performing

manual tasks. The Sixth Circuit opinion does not rest on a

determination of whether Ms. Williams is substantially

limited in the major life activity of working. The Sixth Circuit

simply required that Ms. Williams’ impairment in performing

manual tasks affect her work, a requirement previously

embodied in § 12112(a).

19

There is no conflict among the circuits concerning an

important and recurring issue that should be decided by this

Court.

Toyota notes the increasing number of repetitive stress/

trauma injuries in the workplace (Petition pp. 22-23) and

advances the proposition that individuals with the same sort

of impairments should not be covered under the ADA in one

part of the country but covered in another. Petition p. 24.

In essence, Toyota requests that a standard be adopted

on a national basis that carpal tunnel syndrome and repetitive

stress injuries cannot lead to a finding of disability under

the ADA. While it is easy to understand Toyota’s economic

motives for suggesting such a standard, such a position is

flatly rejected by the statute, § 12102(2) requiring that

disability be determined “with respect to an individual-. . . ,

and this Court’s holding, widely accepted, that a disability

determination be an individualized determination.”

Sutton, id. at 483.

There is no indication that the ADA is being construed

in anything other than a uniform manner as it is clear the

disability determination is an individualized determination

to be made on a case—by-—case basis.

20

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

ROBERT LESLIE ROSENBAUM

Counsel of Record

ROSENBAUM & ROSENBAUM, P.S.C.

300 Lexington Building

201 West Short Street

Lexington, Kentucky 40507

(859) 259-1321