Ella WILLIAMS, Plaintiff-Appellant, v. TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC., Defendant-Appellee, 224 F.3d 840

MERRITT, J., delivered the opinion of the court, in which MOORE, J., joined. BOGGS, J. (pp. 845-47), delivered a separate opinion concurring in part and dissenting in part. AMENDED OPINION MERRITT, Circuit Judge. In this case under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., plaintiff Ella Williams was transferred by the defendant auto manufacturer to the paint inspection

section of the defendant’s quality control operation in its Kentucky assembly plant because the manual tasks Williams had been performing on the assembly line using pneumatic tools had caused her to develop carpal tunnel syndrome and tendinitis in her hands and arms. Williams then spent approximately three years inspecting cars on the assembly line for defective paint and manually wiping down each newly painted car as it passed on the conveyor. Taking the facts in the light most favorable to the plaintiff, as we must when the district court has granted

summary judgment for the defendant-employer, Williams’ job duties were then expanded to include another job in the paint inspection

section requiring her to grip a block of wood with a sponge attached to the end and wipe down the passing cars with a highlight oil at the rate of approximately one car per minute. In addition to gripping the block of wood, this new work required Williams to keep her hands and arms up around shoulder height repetitively over several hours. Her ligament and muscle problems reappeared in a more severe form as a result of the new job, with tendinitis now in her shoulders and neck as well. As a result, Williams asked her employer to assign her back to her former jobs within the paint inspection section.

The employer refused according to Williams, but the employer disputes this fact. The central question in this case is whether the employer violated the ADA by refusing to accommodate Williams by allowing her to return to her former, less strenuous work within paint inspection. The district court granted

summary judgment against the plaintiff primarily on the ground that she does not have a “disability,” as defined in the Act, and therefore is not covered by the Act. The key issue before us is simply whether plaintiffs physical difficulties in using her hands, arms and shoulders, as required by her new job within paint inspection, constitute a “disability.” In other words, should Williams’ inability to perform certain manual tasks bring her within the coverage of the Act. Williams also claims that the defendant violated the ADA by terminating her due to her disability.

The district court found that Williams failed to make a prima facie case with respect to her wrongful termination claim, because Williams was completely restricted from doing any kind of work at the time of her termination and therefore could not be a qualified individual under the ADA. The ADA is unclear as to when it should be applied to protect an employee, as the Supreme Court recently suggested in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).

The Act provides that the employer may not “discriminate against a qualified individual with a disability because of the disability ... in regard to ... hiring, advancement, or discharge of employees, employees compensation, job training, and other terms ... of employment.” § 12112(a). The phrase “qualified individual with a disability” is defined as a person “with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” § 12111(8). In the crucial

section in the litigation before us, the Act defines the word “disability” as follows: (

A) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (

B) A record of such impairment; or (

C) Being regarded as having such an impairment. § 12102(2) (emphasis added). The EEOC in its regulations interpreting the ADA and the Supreme Court in Sutton have said that the language in the definition of disability that the impairment in question must “substantially lim-ite] one or more of the major life activities” requires for the major life activity of “working” that the individual be unable to perform a class or broad range of jobs. The analysis must be class based. “One must be precluded from more than one type of job,” i.e., “a substantial class of jobs.” Sutton, 119 S.Ct. at 2151.

The plaintiff here asserts primarily that her impairments disable her from performing manual tasks, a different disability from “working,” the disability at issue in the Sutton case. It would appear, nevertheless from the language of the Act, the EEOC’s

interpretation and the Supreme Court’s analysis in Sutton that in order to be disabled the plaintiff must show that her manual disability involves a “class” of manual activities affecting the ability to perform tasks at work. In this case, taking the evidence in the light most favorable to the plaintiff, we conclude that the plaintiffs set of impairments to her arms, shoulders and neck are sufficiently disabling to allow the factfin-der to find she crosses the threshold into the protected class of individuals under the ADA who must be accorded reasonable accommodation.

Her ailments are analogous to having missing, damaged or deformed limbs that prevent her from doing the tasks associated with certain types of manual assembly line jobs, manual product handling jobs and manual building trade jobs (painting, plumbing, roofing, etc.) that require the gripping of tools and repetitive work with hands and arms extended at or above shoulder levels for extended periods of time.

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 a determination that her impairment substantially limits her ability to perform the range of manual tasks associated with an assembly line job.

In addition, looking at all of the evidence most favorably to the plaintiff, the duration of Williams’ impairment, as well as the expected permanent impact of it, are inferable from the permanent work restrictions prescribed by Williams’ treating physicians. As a result, we conclude there is sufficient evidence to support a finding that Williams was substantially limited as to a major life activity and that the district court’s grant of

summary judgment for the defendant was inappropriate. Because we conclude that Williams is substantially limited in performing manual tasks, we do not need to determine whether Williams is substantially limited as to the major life activities of lifting or working. Moreover, as to the major life activity of working, the case of McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369 (6th Cir.1997), is distinguishable from the case at hand.

McKay was decided before the Supreme Court recognized in Sutton that “there may be some conceptual difficulty in defining ‘major life activities’ to include work, for it seems to argue in a circle to say that if one is excluded, for instance, by reason of [an impairment, from working with others] ... then that exclusion constitutes an impairment, when the question you’re asking is, whether the exclusion itself is by reason of handicap.” 119 S.Ct. at 2151 (internal citation omitted).

The Sutton Court further noted that “even the EEOC has expressed a reluctance to ... include working and has suggested that working be viewed as a residual life activity, considered, as a last resort, only W an individual is not substantially limited with respect to any other major life activity.’ ” Id. (quoting 29 C.F.R. pt. 1630, App. § 1630.2(j)) (emphasis in original).

In this case, the plaintiffs 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.

Ultimately, McKay is distinguishable from this case for the same reason that Sutton is, in that these cases only turned on the “difficult concept” of working which is viewed as a “last resort.” The concept of “manual tasks” requires a disability analysis to come before the life activity of working is considered and includes looking at a person’s ability to use their limbs in a way called for by a broad range or class of manual activities that, as in this case, require the gripping of tools and arms to be kept overhead or at shoulder level repetitively for an extended period of time.

Here, the impairments of limbs are sufficiently severe to be like deformed limbs and such activities affect manual tasks associated with working, as well as manual tasks associated with recreation, household chores and living generally. The notion of “class” advocated by the Sutton Court can be based on a more limited concept than “working,” and can be based on limits on manual activities which can affect other major life activities.

Moreover, we believe Williams’s impairment is more severe than the McKay plaintiffs, rendering Williams “[significantly restricted as to the condition, manner or duration under which [she] can perform [manual tasks] as compared to the condition, manner, or duration under which the average person in the general population can perform [them].” 29 C.F.R. § 1630.2(j)(l)(ii). Because we conclude that Williams has made the necessary showing under § 12102(2)(

A) that she suffers from an actual impairment that substantially limits a major life activity to survive a motion for

summary judgment, we need not address her claims that she was disabled because she had a record of a qualifying impairment, pursuant to § 12102(2)(B), or that, in the alternative, she was disabled because she was regarded as having such an impairment, pursuant to § 12102(2)(C). As to Williams’s wrongful termination claim, however, we agree with the district court that, because Williams is restricted completely from working, she cannot claim to be a “qualified individual with a disability” within the meaning of the ADA; therefore, that claim must fail.

Although we have concluded that Williams is disabled and that there is a triable issue of fact as to whether the defendant auto manufacturer failed to reasonably accommodate her disability, it is important to note that Williams must still demonstrate the remainder of her prima facie case, and that the defendant is still free to raise any viable defenses as to why it was unable to accommodate Williams, such as undue hardship and business necessity.

To the extent that there is concern that employers may be required to answer in court “for every employment practice that draws distinctions based on physical attributes,” nothing in this opinion should be construed to undermine an employer’s ability to rely on an appropriate affirmative defense. Sutton, 119 S.Ct. at 2160 (Stevens, J., dissenting). In regard to Williams’s FMLA claim, we conclude that the district court properly granted

summary judgment in favor of the defendant. The FMLA entitles an eligible employee with a serious health condition to 12 work weeks of unpaid medical leave, 29 U.S.C. § 2612(a)(1)(D), and if an employee’s FMLA rights are violated, then they are entitled to recover certain damages. § 2617. On appeal, Williams does not dispute the defendant’s claim that, assuming arguendo she was improperly denied FMLA leave, she has suffered no damages. Williams has pointed to no economic benefits that she has lost from the denial of FMLA leave. In fact, Williams offered no evidence of any damages in her brief or at oral argument.

Moreover, as the district court noted, Williams testified that on December 6, 1996, her last day of work at the assembly plant, she was placed under a no work of any kind restriction by one of her doctors and that she was still under this restriction nearly nine months after she stopped working at the assembly plant.

Williams’ contention on appeal that this fact is actually a matter of dispute is unpersuasive, as a review of Williams’ deposition transcript reveals that she unequivocally stated that she was restricted at the time of her termination and up until at least nine months later from doing any work of any kind, not even office jobs.

Even if Williams was wrongfully terminated on January 27, 1997, within the 12-week period covered by the FMLA, she has failed to direct this court to any specific evidence supporting her claim that she was mistaken about her work restrictions when she gave her deposition and that she could have returned to work eventually. Cf. Plant v.

Morton Int’l, Inc., 212 F.3d 929, 934-36 (6th Cir.2000) (holding that an employee’s inability to return to work within twelve weeks did not foreclose his FMLA claim, where he could have returned to work eventually and the employer failed to give notice that his FMLA leave time had begun to run.) Williams therefore cannot demonstrate that she was entitled to reinstatement under § 2617.

Accordingly, we REVERSE the district court’s ruling as it pertains to the plaintiffs ADA claim for failure to accommodate and REMAND for further proceedings, but AFFIRM the district court’s ruling on Williams’s FMLA claim and her claim for wrongful termination. . Although Williams has also claimed that she is substantially limited in the major life activities of lifting and working, in addition to manual tasks, her counsel conceded during oral argument that Williams’ strongest claim pertained to the major life activity of performing manual tasks. .

We do not decide whether 29 U.S.C. § 2617(a)(3), which grants attorney fees and costs to a successful plaintiff, applies to a case such as this one, where the plaintiff might be able to show a violation of the FMLA but cannot obtain a monetary judgment or injunc-tive relief. Although the district court addressed the applicability of § 2617(a)(3) in its memorandum opinion, the plaintiffs do not press this issue on appeal, and we therefore do not consider it.