Williams v. Toyota Motor Manufacturing, Kentucky, Inc.

BOGGS, Circuit Judge,

concurring in part and dissenting in part.

I concur in the court’s judgment on the non-ADA portions of this case. I also agree with the court’s citation of the Su- • preme Court in Sutton that “there may be some conceptual difficulty” in dealing with the definition of work as a “major life activity” in ADA cases. Slip op. at 6, quoting Sutton v. United Air Lines, 527 U.S. 471, 119 S.Ct. 2139, 2151, 144 L.Ed.2d 450. However, because I believe that the court’s attempts to deal with this conceptual difficulty are flawed, I respectfully must dissent from its interpretation of the ADA.

The plaintiff in this case can do many things that would be considered “work” and many things that would be considered “manual tasks.” At the same time, Ms. Williams has difficulty with some other activities that would fall into each category. Toyota had already accommodated Williams, after she had complained of some limitations, by assigning her to a subset of the tasks generally performed by a worker in the paint inspection unit. Specifically, she was assigned two of the four jobs usually given to such a worker — inspecting the assembly and paint jobs and, as the court correctly notes, “manually wiping down each newly painted car.” Toyota later asked her to perform a third job (though still not all four) of those jobs usually assigned to someone in her position. This new task also required her to “wipe down the passing ears,” but apparently this wiping was performed with a tool requiring more gripping, and at a greater height than in her existing tasks.

This task caused Williams considerably more physical difficulty. Of course not every amount of physical difficulty with any one task will be considered a disabili*846ty. As the court discerns, under McKay and under other decisions of this and other courts, this inability to perform certain types of tasks would not likely constitute being disabled with regard to the major life activity of working. In particular, this court has held that the inability to perform a single, particular job does not constitute a substantial limitation on working. See Gilday v. Mecosta County, 124 F.3d 760, 767 (6th Cir.1997) (Kennedy, J., concurring in part and dissenting in part) (collecting cases); Cf. Sullivan v. River Valley Sch. Dist., et al., 197 F.3d 804, 811 (6th Cir.1999) (holding that “a mere deterioration in performance at a single, particular job cannot constitute a disability”).

Therefore, the court decides to look instead to the major life activity of “performing manual tasks.” See 29 C.F.R. § 1630.2(i). As does the concept of working, the activity of “performing manual tasks” raises the question just how much of a diminution in that ability constitutes a disability. Certainly the record evidence shows that Williams can perform many manual tasks, beginning, most obviously, with the wiping task that she already had been doing prior to her newest assignment. In addition, the record shows that she can perform the manual tasks of brushing her teeth, laundering her clothes, and doing some driving. In fact, as the court’s opinion again correctly notes, Williams’s difficulty is almost exclusively with the inability to do manual tasks that “require the gripping of tools and repetitive work with hands and arms extended at or above shoulder levels for extended periods of time.” Maj. op. at 842-43.

I see no citations in the court’s opinion, either to regulations or to cases, indicating that such a specific and partial limitation is considered a disability with regard to the major life activity of “performing manual tasks.” In one prior case in which a plaintiff with carpal tunnel syndrome claimed a substantial limitation in his ability to perform manual tasks, the claim was rejected because “plaintiff could work at Stage performing the manual tasks of slicing and chopping food, installing locks, and fixing various items at Stage for [only] eight hours per day ... [which] type of impairment does not constitute a significant restriction on plaintiffs ability to perform manual tasks or any other major life activity.” Shpargel v. Stage & Co., 914 F.Supp. 1468, 1474 (E.D.Mich.1996), citing McKay, 878 F.Supp. 1012, 1014-15, and Fink v. Kitzman, 881 F.Supp. 1347, 1377 (N.D.Iowa 1995). Likewise, another plaintiff failed to present a triable issue on whether her carpal tunnel syndrome “substantially limits” the major life activity of caring for herself despite “the routine tasks that she must perform with adjustment, including: carry groceries only in light bags; carry laundry in small loads; obtain assistance to move furniture, open cans; property make a bed. She cannot ‘effectively’ brush her teeth or hair and experiences discomfort in gripping the steering wheel while driving a car.” Terrell v. USAir, Inc., 955 F.Supp. 1448, 1453 (M.D.Fla.1996), citing Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir.1995), aff'd, 132 F.3d 621 (11th Cir.1998). Measuring Williams’s limitation against plaintiffs claiming similar limitations on other major life activities, she does not appear disabled. If McKay, despite some diminution in ability, is not “substantially limit[ed]” from working, as that term is defined in 29 C.F.R. § 1630(2)(j)(l-3), I fail to see how Williams, who has some comparable diminution in performing manual tasks, is so limited. By defining the standard for a substantial limitation on “performing manual tasks” far less stringently than the standards for “caring for oneself’ and “working” have been defined, the court appears to undercut McKay and its progeny.

More importantly, it seems to me that if considering the concept of working is only a “last resort,” the opinion today mistakenly takes what is here primarily a subset of abilities related to working, the ability to “perform manual tasks,” and erroneously treats a partial limitation there as substan*847tially limiting a major life activity. The court states that “the plaintiff must show that her manual disability involves a ‘class’ of manual activities affecting the ability to perform tasks at work” in order to be disabled. Maj. op. at 843. This description of the plaintiffs burden in defeating summary judgment conflates (and erodes) the standards for demonstrating a substantial limitation on “working” and on “performing manual tasks.” To defeat summary judgment as to the existence of a disability, Williams must demonstrate a genuine issue of material fact that her impairment substantially limits the major life activity of either “working” or “performing manual tasks.” These are separate inquiries, as the court implicitly concedes in seeking to distinguish this case from McKay. 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.

I therefore respectfully dissent.