United States Court of Appeals,
Eleventh Circuit.
No. 96-8395.
Lynda L. WILLIS, Plaintiff-Appellant,
v.
CONOPCO, INC., a.k.a. Lever Brothers Company, a.k.a. Unilever,
Defendant-Appellee.
March 25, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 4:94-cv-200-HLM), Harold L. Murphy,
District Judge.
Before EDMONDSON and BLACK, Circuit Judges, and HILL, Senior
Circuit Judge.
PER CURIAM:
Plaintiff appeals the district court's grant of summary
judgment on her claim under the Americans with Disabilities Act
("ADA"). Plaintiff argues that the district court erred in
requiring her to produce evidence sufficient to establish a triable
issue on the existence of a reasonable accommodation for her
disability. We hold that an ADA plaintiff (1) as part of her
burden of production, must identify an accommodation that would
allow her to perform her job duties and (2) as a part of her burden
of proving her case, must establish that such an accommodation is
reasonable. As Plaintiff has failed to produce evidence of such an
accommodation, we affirm the district court's judgment.
I.
Plaintiff Lynda Willis was employed by Defendant Lever
Brothers in its Carterville plant. Plaintiff initially worked in
the packing area where laundry detergents are packaged for
distribution and sale. In March 1992, Plaintiff reported
experiencing a persistent cough and skin rash. The plant physician
prescribed treatment, and Plaintiff was placed on restricted duty
to limit her exposure to the detergent. When blood tests revealed
that Plaintiff was sensitive to certain enzymes contained in the
detergent, the employer temporarily reassigned Plaintiff to an
administrative position in the plant's safety office. Upon
confirming Plaintiff's sensitivity, the employer monitored the air
quality of its warehouse and spare part areas to determine where
Plaintiff could safely work.
After determining that the spare parts area had reduced levels
of enzymes which it considered to be safe, the employer reassigned
Plaintiff to the spare parts area. In addition to reassigning
Plaintiff, the employer (1) directed her to wear a mask when
crossing the packing area floor (which had relatively higher levels
of enzymes), (2) gave her a pass to park her car near a door which
allowed her to avoid the packing area floor, (3) excused her from
performing housekeeping audits in areas with greater levels of
enzymes, (4) excused her from meetings in higher enzyme areas and
(5) continued to monitor—as it had since Plaintiff first reported
a persistent cough and skin rash—Plaintiff's pulmonary functions.
In October 1993, Plaintiff began a medical leave of absence
for foot surgery—a condition unrelated to this lawsuit. In January
1994, Plaintiff's foot surgeon released her to return to work
without restriction. The next day she notified her employer that
she had seen another physician, Dr. Edelson, 1 who advised her not
to return to work due to the possibility of enzyme exposure.
Edelson provided to Defendant a letter saying as follows:
[Plaintiff] has been exposed to various chemicals in the
work environment at [Defendant' plant].... She definitely has
immune system abnormalities and I think, she should stop
working at this [ ] plant. There is nowhere within that
building that she would be safe.... I reiterate: She should
not be working in that building.
At this point, Plaintiff refused to return to work in the spare
parts area and requested her employer either (1) to reassign her to
a "safe work area" or (2) to enclose and to air condition the spare
parts area. Defendant then arranged (and paid for) Plaintiff to be
examined by a pulmonologist, Dr. Duffell.
In February 1994, Duffell sent Defendant a report in which he
concluded that Plaintiff "was fully capable of continuing to work
in the plant." Shortly thereafter, Defendant sent Plaintiff a
letter directing her to return to work on her next scheduled shift
or to be deemed to have abandoned her job and to have her
employment terminated. In response, Plaintiff had Edelson send a
letter, via facsimile, to Defendant indicating "she is not to come
into contact with any toxic chemical substances.... My suggestion
is that she find some legal way to attain disability because of the
current circumstances." When Plaintiff did not return to work,
Defendant terminated her employment.
Plaintiff brought the present suit alleging a cause of action
1
Dr. Edelson practices "environmental medicine." As the
district court noted, quoting Edelson's deposition,
"[e]nvironmental medicine is not considered mainstream medicine
and is not generally accepted as scientifically valid by
"mainstream' medical community."
under the ADA. After completing discovery, the parties filed
competing summary judgment motions. The district court granted
Defendant's motion for summary judgment and denied Plaintiff's
motion for partial summary judgment as moot. The district court
assumed that Plaintiff was an otherwise qualified individual with
a disability and then held that no triable issue of material fact
existed on whether Defendant could have made reasonable
accommodations for Plaintiff's disability.
II.
We review the grant or denial of summary judgment de novo,
applying the same standard employed by the district court. Parks
v. City of Warner Robins, GA, 43 F.3d 609, 612-613 (11th Cir.1995).
An "accommodation" is "reasonable"—and, therefore, required under
the ADA—only if it enables the employee to perform the essential
functions of her job. 29 C.F.R. § 1630.2(o)(ii). Reassignment to
another position is a required accommodation only if there is a
vacant position available for which the employee is otherwise
qualified. 42 U.S.C. § 12111(9)(B).
According to Plaintiff, her employer failed even to attempt to
make reasonable accommodations for her condition: she says
Defendant neither transferred her nor attempted to make the spare
parts area safe for her. Plaintiff also says that the district
court erred by placing the burden on her to request a specific
accommodation. Plaintiff says the ADA merely requires an employee
to request accommodation—as an abstract concept—after which the
employer becomes obligated to enter into a "flexible, interactive
process" involving both the employer and the employee. Plaintiff
points us to Beck v. University of Wisconsin Bd. of Regents,
75
F.3d 1130, 1135 (7th Cir.1996) ("[T]he regulations envision an
interactive process that requires participation by both parties:
"[T]he employer must make a reasonable effort to determine the
appropriate accommodation. The appropriate reasonable
accommodation is best determined through a reasonable process that
involves both the employer and the [employee] with a disability.'
") (quoting 29 C.F.R. § 1630.2(o)(3) (1995)).
Though the issue of which party has the burden of proposing
a concrete accommodation and establishing that the particular
accommodation is reasonable is one of first impression for us,
other circuits have ruled on the issue. We also note that our
recent opinion in Moses v. American Nonwovens, Inc., 97 F.3d 446,
448 (11th Cir.1996) (per curiam ), though not directly on point,
provides us with significant guidance in deciding the question.
The D.C. Circuit, interpreting almost identical language in
regulations promulgated under the Rehabilitation Act, has
established the following approach to the reasonable accommodation
issue:
These cases deal with objective claims that may be tested
through the application of traditional burdens of proof....
[A] plaintiff must establish that (a) he is handicapped but,
(b) with reasonable accommodation (which he must describe), he
is able to perform the "essential functions" of the position
he holds or seeks. See 29 C.F.R. § 1613.702(f); see also
id.
§ 1613.704(a), (b). As in the usual case, it would then be up
to the employing agency to refute that evidence. The burden,
however, remains with the plaintiff to prove his case by a
preponderance of evidence.
Barth v. Gelb,
2 F.3d 1180, 1186 (D.C.Cir.1993). We agree that
this statement of an ADA plaintiff's burdens of production and
persuasion (which tests plaintiff's claim "through the application
of traditional burdens of proof") is the appropriate one.
Even assuming an employer has an affirmative obligation—absent
an employee's suggestion for a specific accommodation—to engage in
the interactive process Plaintiff advocates, we have held that,
where a plaintiff cannot demonstrate "reasonable accommodation,"
the employer's lack of investigation into reasonable accommodation
is unimportant. Moses v. American Nonwovens, Inc.,
97 F.3d 446,
448 (11th Cir.1996). In Moses, we rejected an employee's claim
(under the ADA) that his employer not only failed to make
reasonable accommodations for his disability, but also
failed—before terminating the employee's employment—even to
consider the available options for accommodating the disability.
Id. ("[Plaintiff's] primary arguments are that [the employer]
failed to investigate his condition and failed to consider possible
accommodations.") We acknowledged that we were troubled by
evidence that the employer had failed to investigate accommodating
the plaintiff.
Id. ("We are more troubled by the evidence that
[the employer] failed to investigate possible accommodations. No
language in the ADA mandates a pretermination investigation, but
the EEOC advises that "the employer must determine whether a
reasonable accommodation would ... eliminate' the direct threat.
29 C.F.R. § 1630.2(r), 1630.9, Interp. Guidance.") We determined,
however, that the ADA provides no cause of action for "failure to
investigate" possible accommodations, and that:
We are persuaded that [the employer's] failure to
investigate did not relieve [plaintiff] of his burden of
producing probative evidence that reasonable accommodations
were available. A contrary holding would mean that an
employee has an ADA cause even though there was no possible
way for the employer to accommodate the employee's disability.
Stated differently: An employer would be liable for not
investigating even though an investigation would have been
fruitless. We are confident that although the ADA does not
mandate a pretermination investigation, the possibility of an
ADA lawsuit will, as a matter of practice, compel most
employers to undertake such an investigation before
terminating a disabled employee.
Id.
To the extent that the Seventh Circuit's Beck opinion can be
interpreted (as Plaintiff says) to require an "interactive process"
such that an employer can be held liable merely for failing to
engage in the process itself (regardless of whether a "reasonable
accommodation" could in reality have been made for the employee),
Moses holds otherwise. And, to the extent that Beck can be
interpreted as requiring that the "interactive process" envisioned
in the regulations carry over to a plaintiff's burden of production
in court (thus, relieving the plaintiff-employee of her "burden of
producing evidence that reasonable accommodations were available"),
Moses holds otherwise.
We also do not believe an approach as punitive in nature as
Plaintiff's view of an "interactive process" requirement comports
with the basic goal of the ADA, which we understand to be remedial
in nature—ensuring that those with disabilities can fully
participate in all aspects of society, including the workplace.
See e.g. 42 U.S.C. § 12101(a)(8) ("[T]he Nation's proper goals
regarding individuals with disabilities are to assure equality of
opportunity, full participation, independent living, and economic
self-sufficiency for such individuals;....") The ADA, as far as we
are aware, is not intended to punish employers for behaving
callously if, in fact, no accommodation for the employee's
disability could reasonably have been made.
We know that some courts have required the plaintiff (as part
of her initial burden of production) to introduce evidence of the
existence of an accommodation, but have combined the questions of
(a) whether the accommodation is reasonable and (b) whether it will
impose an undue hardship on the employer into one question. Then
the burden of proof (or the "burden of nonpersuasion") on the one
question has been put on the defendant-employer. See e.g.
Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d
Cir.1995) ("[I]n practice meeting the burden of nonpersuasion on
the reasonableness of the accommodation and demonstrating that the
accommodation imposes an undue hardship amount to the same thing.")
(interpreting regulations promulgated pursuant to the
Rehabilitation Act). Such an approach confuses an element of the
plaintiff's case (reasonable accommodation) with an affirmative
defense (undue burden) and effectively relieves the plaintiff of
her obligation to prove her case. See 42 U.S.C. § 12112(b) ("As
used in subsection (a) of this section, the term "discriminate'
includes—... (5)(A) not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee,
unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of
such covered entity; ...")
We doubt that, in providing for a private right of action to
enforce the rights created by the ADA, Congress intended such a
departure from the traditional rules and norms of litigation. This
doubt is especially strong where an established body of civil
rights jurisprudence (which employed conventional burdens of
production and proof for plaintiffs and defendants) existed, and
Congress expressly relied on existing civil right laws in creating
the pertinent private right of action. See generally 42 U.S.C. §
12117(a) ("The powers, remedies, and procedures set forth in
sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this
title shall be the powers, remedies, and procedures this subchapter
provides to the Commission, to the Attorney General, or to any
person alleging discrimination on the basis of disability in
violation of any provision of this chapter, or regulations
promulgated under section 12116 of this title, concerning
employment."). See also St. Mary's Honor Center v. Hicks, 509 U.S.
502, 506-07,
113 S. Ct. 2742, 2747,
125 L. Ed. 2d 407 (1993) ("It is
important to note, however, that although the McDonnell-Douglas
presumption shifts the burden of production to the defendant,
"[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against remains at all times
with the plaintiff.' ") (quoting Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 253,
101 S. Ct. 1089, 1093,
67 L. Ed. 2d 207
(1981)).
That the evidence probative of the issue of whether an
accommodation for the employee is reasonable will often be similar
(or identical) to the evidence probative of the issue of whether a
resulting hardship for the employer is undue, does not change the
fact that establishing that a reasonable accommodation exists is a
part of an ADA plaintiff's case, whereas undue hardship is an
affirmative defense to be pled and proven by an ADA defendant.2
Turning to the evidence before the district court in this
case, Plaintiff presented no competent evidence that any
alternative position existed (vacant or otherwise)—regardless of
whether she was qualified for it. In fact, Plaintiff's physician
indicated that "[t]here is nowhere within that building that she
would be safe." The only evidence Plaintiff offered that a vacant
position existed at all was a hearsay statement, contained in her
affidavit, that she ran into a "temporary service girl" who
informed her that "she was hired into the vacant office position
[Plaintiff] had [temporarily] had [in the plant's safety office]
after [Defendant] had terminated me." The district court struck
the statement as inadmissible hearsay, and Plaintiff does not
appeal this evidentiary ruling. The district court also pointed
out that Plaintiff's own testimony contradicted her claim that such
a position would have accommodated her condition. Also, the
affidavit does not show that the vacancy (if there was a vacancy)
existed when Plaintiff was let go.
As for Plaintiff's claim that it would have been a reasonable
accommodation for Defendant to enclose and to air-condition the
2
These two issues are not exactly the same: the question of
whether an accommodation is reasonable (though it must be
determined within a given set of specific facts) is more of a
"generalized" inquiry than the question of whether an
accommodation causes a "hardship" on the particular employer that
is undue. See
Barth, 2 F.3d at 1187 ("As a general matter, a
reasonable accommodation is one employing a method of
accommodation that is reasonable in the run of cases, whereas the
undue hardship inquiry focuses on the hardships imposed by the
plaintiff's preferred accommodation in the context of the
particular agency's operations.") (interpreting Rehabilitation
Act regulations) (emphasis in original) (citations omitted).
spare parts area, she testified, in her deposition, that she "still
[would] have been exposed to powder" and that no way existed that
she "could work in the spares department and not be exposed to
enzymes." She submitted no evidence to contradict her testimony
(or that of her doctor) on this point.
Plaintiff says that, as an employee, she was in no position to
know what specific accommodations were available or how reasonable
they were. Whatever may be said of her "burden" as an employee in
the day-to-day workplace seeking an accommodation for her
condition, Plaintiff—as a litigant bringing an ADA action—has
failed to produce evidence (after the completion of discovery) of
the existence of any "accommodation" at all, "reasonable" or
otherwise.
Plaintiff also says that she was subjected to a
discriminatory termination in that she was discharged in
retaliation for requesting an accommodation or for seeking to file
for worker's compensation benefits. The district court held that
Defendant had articulated a legitimate, nonretaliatory reason for
the discharge—Plaintiff refused to report to work—and that her
failure to present evidence that Defendant's proffered reason was
pretextual requires summary judgment. See e.g. Jackson v. Veterans
Admin., 22 F.3d 277, 279 (11th Cir.1994) ("one who does not come to
work cannot perform any of his job functions, essential or
otherwise") (quotation marks and citation omitted).
Plaintiff seeks to distinguish Jackson by pointing out that
the disability involved there resulted in the employee being absent
from the office in an unpredictable way. Plaintiff also says that
Defendant's failure in this case to provide her with worker's
compensation forms (despite three requests to do so) and the fact
that she sought such benefits shortly before being terminated,
raises a triable issue of fact. Assuming for the sake of argument
that Defendant's failure to provide such forms does raise a triable
issue in the first instance (that is, assuming that Plaintiff has
met her burden of coming forward with evidence to raise an
inference of retaliation), Plaintiff fails to offer evidence to
raise an inference that Defendant's offered explanation for the
termination (Plaintiff refused to come to work) was mere pretext.
When an employee refuses to show up for work after being
informed that her failure to do so will result in the loss of her
job, the employer has presented a valid, nonretaliatory reason for
terminating that employee. Id. at 278 ("The [employer] does not
dispute that [the employee] performs these tasks satisfactorily
when he is at work. ... [The employee's] presence on a routine
basis is also an essential element of the job that he has failed to
satisfy.") (emphasis in original).
AFFIRMED.
