Terrell v. USAIR , 132 F.3d 621 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________
No. 96-2345
_____________________________________
D. C. Docket No. 94-245-CIV-ORL-22
PEGGY H. TERRELL,
Plaintiff-Appellant,
versus
USAIR,
Defendant-Appellee.
______________________________________
Appeal from the United States District Court
for the Middle District of Florida
_______________________________________
(January 6, 1998)
Before TJOFLAT, ANDERSON and EDMONDSON, Circuit Judges.
EDMONDSON, Circuit Judge:
Plaintiff-Appellant 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 concluding as a matter of law (1) that she was not
disabled and (2) that, in the alternative, USAir had reasonably
accommodated her as required by the ADA. We hold that, even
assuming Plaintiff had a disability as defined by the ADA, USAir
reasonably accommodated Plaintiff’s disability. Because
summary judgment was proper on the reasonable
accommodation issue, we affirm.
I.
Plaintiff Peggy H. Terrell has been employed by USAir (or
its predecessor, Piedmont Aviation) since 1982 as a
reservations sales agent. She is currently employed at USAir’s
Orlando Reservations Center. As a reservations agent, Plaintiff
sits at a computer terminal, takes calls from people making
inquiries or seeking to make flight arrangements, provides
2
information and makes passenger reservations. The job
requires Plaintiff to type constantly on a keyboard or telephone
keypad.
In 1991, Plaintiff filed a workers’ compensation claim
alleging she had developed carpal tunnel syndrome (“CTS”)
because of her job. Plaintiff’s physician, Dr. White, prescribed
restrictions on the hours which Plaintiff could work each day.
During 1991 and 1992, Plaintiff made four requests for schedule
modifications based on Dr. White’s advice; and USAir modified
Plaintiff’s schedule each time as requested.1
In 1992, a second physician, Dr. Foncea, recommended
surgery for Plaintiff’s condition and also recommended that the
four-hour restriction on her workday continue. While on leave
1
In December 1991, Plaintiff was limited to working four hours
per day for three days. In January 1992, she was limited to
working four hours per day for two weeks then six hours per day
for another two weeks. In March 1992, Plaintiff was limited to six
hours of work per day. In June 1992, she was limited again to
four hours of work per day.
3
for her surgery, Plaintiff continued to receive her full-time
salary until 8 February 1993, under USAir’s salary continuance
program, which pays the difference between worker’s
compensation benefits and the employee’s full-time salary.
Following her surgery on 9 December 1992, Plaintiff was unable
to return to work until 19 April 1993. After Plaintiff’s return to
work in April 1993, Dr. Foncea recommended that she remain
restricted to four-hour days, which USAir accommodated.
Beginning in April 1993, Plaintiff was compensated only for the
hours she actually worked.
While Plaintiff was on medical leave for her surgery, Dr.
Foncea also requested that USAir modify Plaintiff’s work
station “according to advice.” Plaintiff understood the
modifications to include a drop keyboard.2 When Plaintiff
returned to work in April 1993, she was not provided with a
2
A “drop keyboard” is a keyboard that is adjustable in height
and depth to make its use more comfortable.
4
drop keyboard, but was told to use a work station with a drop
keyboard when it was available. When a drop keyboard was
unavailable and Plaintiff complained to her supervisor about
increased pain, she was told just to listen in on other agents’
calls.
By 28 May 1993, Plaintiff had exceeded the sixty-day limit
allowed by USAir for injured employees to work on “limited
duty” (meaning fewer hours than the employee’s scheduled
shift); and USAir placed her on unpaid medical leave. At that
time, USAir had no permanent part-time reservations agents at
the Orlando Center because the part-time employees had been
furloughed during 1990 and 1991. In late 1993, however, USAir
reconsidered using part-time reservations agents at its Orlando
Center and contacted Plaintiff, along with other former part-time
reservations agents who had been furloughed in 1990 and 1991,
about whether she was interested in working part-time at USAir.
Plaintiff responded that she was interested, and she was
5
recalled as a part-time reservations agent in April 1994. After
she returned, Plaintiff was provided with a drop keyboard. The
recalled part-time agents initially worked four hour shifts until
USAir lengthened the part-time shifts to five hours. Plaintiff
worked the new five hour shift for a few months until October
1994, when her doctor recommended that she work only four
hours per day. USAir modified Plaintiff’s schedule as
requested; and, as of the date of oral argument in this case,
Plaintiff continued to work four hours per day as a reservations
agent for USAir.
In 1994, Plaintiff sued USAir for discrimination in violation
of the ADA and the Age Discrimination in Employment Act
(“ADEA”). The district court granted summary judgment for
Defendant USAir on both claims.3 On Plaintiff’s ADA claim, the
district court concluded that Plaintiff had not presented a
3
Plaintiff does not appeal the grant of summary judgment on
her age discrimination claim under the ADEA.
6
triable issue of fact on whether she was disabled and that, even
if Plaintiff was disabled, she had not presented a triable issue
of fact on whether USAir failed to accommodate reasonably her
disability. Plaintiff challenges both of these conclusions on
appeal.
II.
We review the district court’s grant of summary judgment
de novo, viewing the facts in the light most favorable to
Plaintiff. Parks v. City of Warner Robins, Ga, 43 F.3d 609, 612-
13 (11th Cir. 1995).
Discrimination under the ADA includes “not making
reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability.”
42 U.S.C. § 12112(b)(5)(A). To state a prima facie case of
disability discrimination, a plaintiff must show (1) that she has
7
a disability; (2) that, with or without reasonable
accommodations, she can perform the essential functions of
the position she holds; and (3) that she was discriminated
against because of her disability. See Stewart v. Happy
Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997);
42 U.S.C. § 12111(8) (defining “qualified individual” the same as
factor (2) above). “[T]he burden of identifying an
accommodation that would allow a qualified individual to
perform the job rests with that individual, as does the ultimate
burden of persuasion with respect to demonstrating that such
an accommodation is reasonable.” Stewart, 117 F.3d at 1286;
see also Willis v. Conopco, Inc., 108 F.3d 282, 284-86 (11th Cir.
1997). Once the plaintiff has met her burden of proving that
reasonable accommodations exist, the defendant-employer
may present evidence that the plaintiff’s requested
accommodation imposes an undue hardship on the employer.
Willis, 108 F.3d at 286.
8
For the purpose of this appeal, we assume that Plaintiff
has made a prima facie showing of disability.4 About
reasonable accommodations, Plaintiff argues that, when she
was placed on medical leave in 1993, she could perform the
essential functions of her job as a reservations agent --
including continuous typing on the keyboard -- with the
4
The ADA defines a disability, in relevant part, as “a physical
or mental impairment that substantially limits one or more of the
major life activities of such individual.” 42 U.S.C. § 12102(2).
“Working” is a “major life activity,” see Stewart, 117 F.3d at 1285(quoting Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132
[11th Cir. 1996]), which is substantially limited when the disability
“‘significantly restrict[s the] ability to perform either a class of
jobs or a broad range of jobs in various classes as compared to
the average person having comparable training, skills and
abilities.’” Id.Here, the district court concluded that Plaintiff was not
disabled because she had not shown that her CTS substantially
limited a major life activity. Plaintiff makes a forceful argument
that she has established a triable issue of fact on whether she is
substantially limited in the major life activity of working. At the
time of the district court’s order, she was fifty-four years old; and
she had been in the same position with USAir for over thirteen
years. She has a high school equivalency degree but no college
degree. These factors add support to her argument. We need
not address this issue, however, because the district court
correctly ruled that USAir reasonably accommodated Plaintiff’s
CTS.
9
following accommodations: (1) a part-time position; (2) a drop
keyboard; and (3) five-minute breaks every hour. She argues
USAir did not reasonably accommodate her as requested.
A. Part-Time Position
Plaintiff argues that USAir failed to accommodate her
reasonably by refusing to place her in a part-time (four hours
per day) position in May 1993 instead of placing her on unpaid
medical leave. USAir argues that it had no duty to place
Plaintiff in a part-time position as a reservations agent because
no such positions existed at USAir’s Orlando office -- much
less were vacant -- when Plaintiff was placed on medical leave.
According to the affidavit of the office administrator for USAir’s
Orlando Reservations Center, Willetta Barr, all part-time
reservations agents at the Orlando office had been furloughed
during 1990 and 1991. In late 1993, USAir decided to reinstate
10
part-time reservations agent positions and contacted former
part-time agents, including Plaintiff, about returning to work.
Plaintiff returned to work in April 1994 along with the
furloughed part-time agents.
Plaintiff argues that a factual dispute exists about whether
reservations agents worked part-time at USAir when Plaintiff
was placed on medical leave. Plaintiff points to a statement in
her affidavit that “[s]hifts come and go throughout the day at
USAir, Inc. Reservation Center in Orlando, including
reservations agents who are both full time and part time, and
my position is not vacant the four hours per day I am unable to
work.” This statement, however, does not support Plaintiff’s
argument because it refers to USAir’s employment of part-time
agents at its Orlando office in 1995 when Plaintiff made this
affidavit. The relevant factual inquiry is whether or not the
Orlando office had part-time positions available in 1993 when
Plaintiff was placed on medical leave. See also Holifield v.
11
Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (conclusory
allegations, without more, insufficient to withstand summary
judgment).
Plaintiff presented no evidence in the district court that
part-time reservations agent positions existed at USAir in 1993.
When asked in her deposition whether there were part-time
agents employed in the Orlando Reservations Center in 1991,
Plaintiff responded “I don’t think so, but I’m not really sure.”
Plaintiff also acknowledged in her deposition that, when she
returned to work part-time in 1994, USAir recalled many agents
who had been furloughed. Even viewing the evidence in the
light most favorable to Plaintiff, the district court correctly
concluded that Plaintiff has presented no issue of fact about
whether part-time reservations agent positions -- meaning
positions requiring four hours of work or less per day -- existed
at USAir when she was placed on medical leave.5
5
Evidence existed in the district court -- in the form of
12
Accepting that no part-time reservations agent positions
existed in 1993, the question remains whether USAir had a duty
to create a part-time position for Plaintiff to accommodate her
CTS. The district court concluded that USAir was required to
Plaintiff’s deposition testimony and Barr’s affidavit -- that, at the
time Plaintiff was placed on medical leave in 1993 and throughout
her medical leave, a class of employees designated as
“intermediate agents” worked six hours per day at USAir’s
Orlando office. These “intermediate agents” were former
Piedmont (USAir’s predecessor) reservations agents who had
worked six hours per day at Piedmont and were hired in the same
capacity by USAir when Piedmont became USAir. When an
intermediate agent leaves her position at USAir, the position is
eliminated; and USAir does not hire a new intermediate agent to
fill the position. None of those positions could have
accommodated Plaintiff, whose CTS restricted her work to four
hours per day.
The existence of intermediate agent positions at USAir while
Plaintiff was on medical leave does not change our conclusion
that Plaintiff has presented no triable issue of fact on whether
“part-time” positions existed when she was placed on medical
leave. In May 1993, when USAir placed Plaintiff on leave,
Plaintiff’s doctor had limited Plaintiff to working no more than
four hours per day; and Plaintiff has continued to be limited to
four hours of work per day until the time of oral argument in this
case. Plaintiff has not shown -- that is, produced insufficient
evidence to create a question of fact -- that reservations agents at
USAir were allowed to work four-hour shifts when she was
placed on medical leave.
13
create no part-time position, relying on cases stressing that
employers are not required to create “light-duty” positions for
their disabled employees under the ADA. See, e.g., Howell v.
Michelin Tire Corp., 860 F. Supp. 1488, 1492 (M.D. Ala. 1994)
(“Reasonable accommodation [] does not require that an
employer create a light-duty position or a new permanent
position.”).
Plaintiff argues that the district court erred by relying on
“light-duty” cases in holding that USAir had no duty to create
a part-time position for her. She notes that one performing
“light-duty,” by definition, is not as productive as one
performing full-duty because, “[i]n most cases, [] ‘light-duty’
positions involve a totally different job from the job that a
worker performed before the injury.” Howell, 860 F. Supp. at
1492 (quoting Equal Employment Opportunity Commission,
Technical Assistance Manual § 9.4). In contrast, a part-time
employee works the same job, only on a shortened schedule.
14
Plaintiff asserts that the ADA establishes that part-time
work is per se a reasonable accommodation because the
statute lists “part-time or modified work schedules” as possible
accommodations. 42 U.S.C. § 12111(9)(B). According to
Plaintiff, once part-time work has been identified as a
reasonable accommodation, the burden shifts to the employer
to show undue hardship. Because USAir asserted no defense
of undue hardship in this case, Plaintiff contends that summary
judgment is inappropriate.
We disagree with Plaintiff’s characterization of her burden
of showing that a reasonable accommodation existed in this
case. Although both the statute and regulations list (“may
include”) part-time work as a potential reasonable
accommodation, we do not accept that this listing means part-
time work is always a reasonable accommodation. The ADA’s
“use of the word ‘reasonable’ as an adjective for the word
‘accommodate’ connotes that an employer is not required to
15
accommodate an employee in any manner in which that
employee desires.” Stewart, 117 F.3d at 1285 (internal
quotations and citations omitted). “This is so because the word
‘reasonable’ would be rendered superfluous in the ADA if
employers were required in every instance to provide
employees the ‘maximum accommodation or every conceivable
accommodation possible.’” Id. (internal quotations and
citations omitted). A plaintiff does not satisfy her initial burden
by simply naming a preferred accommodation -- even one
mentioned in the statute or regulations; she must show that the
accommodation is “reasonable” given her situation. Id. at 1286.
Whether an accommodation is reasonable depends on
specific circumstances. See Wernick v. Federal Reserve Bank,
91 F.3d 379, 385 (2d Cir. 1996). In a specific situation, part-time
employment may or may not be reasonable. In this case, where
USAir had no part-time jobs when Plaintiff demanded such a
position, a request for part-time employment was unreasonable.
16
Although part-time work, as the statute and regulations
recognize, may be a reasonable accommodation in some
circumstances (particularly where the employer has part-time
jobs readily available), we hold that USAir was not required to
create a part-time position for Plaintiff where all part-time
positions had already been eliminated from the company.6 See
Whitbeck v. Vital Signs, Inc., 934 F. Supp. 9, 16 (D.D.C. 1996),
rev’d on other grounds, 116 F.3d 588 (D.C. Cir. 1997) (“This type
of accommodation by an employer, providing an entirely new
part-time position for a disabled employee, courts have found
is not required by the ADA.”) (citations omitted). Cf. White v.
6
That USAir endeavored to accommodate Plaintiff’s CTS by
temporarily reducing her working hours on four different
occasions in 1991 and 1992 does not, by itself, prove the
reasonableness of Plaintiff’s requested accommodation. An
employer that “bends over backwards to accommodate a
disabled worker . . . must not be punished for its generosity by
being deemed to have conceded the reasonableness of so far-
reaching an accommodation.” Vande Zande v. Wisconsin Dep’t
of Administration, 44 F.3d 538, 545 (7th Cir. 1995); see also
Holbrook v. City of Alpharetta, Ga, 112 F.3d 1522, 1528 (11th Cir.
1997).
17
York Int’l Corp., 45 F.3d 357, 362 (10th Cir. 1995) (“[T]he ADA
does not require an employer to promote a disabled employee
as an accommodation, nor must an employer reassign the
employee to an occupied position, nor must the employer
create a new position to accommodate the disabled worker.”).
Whether a company will staff itself with part-time workers, full-
time workers, or a mix of both is a core management policy with
which the ADA was not intended to interfere.7 Instead,
7
To require an employer to create part-time or full-time
positions when a management decision has been made to
employ only one or the other, places a heavy burden upon that
employer.
Many statutes and regulations exist that potentially affect an
employer who has no part-time workers, but is later forced to hire
part-time employees. See, e.g., 14 C.F.R. pt. 241, § 24, Schedule
P-1(a) (d)(8) (1997) and Schedule P-10(c) (specifying different
financial reporting requirements for full-time versus part-time
employees in aviation); 26 C.F.R. § 1.105-11 (1997) (differentiating
between full-time and part-time employees for income tax
purposes); 7 C.F.R. § 3403.2 (1997) (setting forth small business
classifications which require full and part-time employees to
each be counted as one employee in determining whether the
employer meets the less than 500 employees requirement to
qualify as a “small business”). Based on these and other
regulations, an employer who is forced to create a part-time work
force will be subjected to a new and complicated world of
18
employers are only required to provide “alternative employment
opportunities reasonably available under the employer’s
existing policies.” See School Bd. Of Nassau County v. Arline,
480 U.S. 273, 289 n.19 (1987).
To hold as plaintiff urges would create the anomaly that, if
Plaintiff had been assigned to a part-time job one day before
the part-time agents were furloughed, she would have been
lawfully released with the other agents but, where she
requested a part-time position soon after the part-time agents
were furloughed, she would be legally entitled to a permanent
part-time position. Or perhaps, Plaintiff would contend that,
even under these supposed circumstances, she could keep her
part-time job while all other part-time employees lost their jobs.
The intent of the ADA is that an employer needs only to
provide meaningful equal employment opportunities. See S.
administrative and legal controls; so, we are reluctant to accept
that the ADA means that part-time jobs must be created solely to
accommodate the disabled.
19
Rep. No. 101-116, 101st Cong., 2nd Sess. 35 (1990). Acceptance
of Plaintiff’s argument would result in the non-disabled (those
part-time agents without CTS) being discriminated against -- on
the most basic of employment issues, that is, do you have a job
at all -- in favor of the disabled (those part-time agents with
CTS): only part-time reservations agents with CTS would have
jobs. This would be an obvious problem. The ADA was never
intended to turn nondiscrimination into discrimination. Cf.
Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995)
(“Even viewing all the disputed evidence in favor of [the
plaintiff], his ADA claim must fail because he did not show that
he was treated differently from any other part-time employee
whose job was eliminated. . . . There was no proof that the city
treated him worse than it treated any other displaced
employee.”); Rhodes v. Bob Florence Contractor, Inc., 890 F.
Supp. 960, 967 (D. Kan. 1995) (“[The plaintiff’s] disability does
not insulate him from the vagaries of the marketplace.”).
20
We cannot accept that Congress, in enacting the ADA,
intended to grant preferential treatment for disabled workers.
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; . . .”). See also
Daugherty, 56 F.3d at 700 (“[W]e do not read the ADA as
requiring affirmative action in favor of individuals with
disabilities, in the sense of requiring that disabled persons be
given priority in hiring or reassignment over those who are not
disabled. It prohibits employment discrimination against
qualified individuals with disabilities, no more and no less.”)
As a matter of law, USAir did not fail to make reasonable
accommodations for Plaintiff’s CTS, especially given that,
when part-time reservations agent positions again became
available at USAir, it promptly notified Plaintiff and allowed her
to fill one of those positions.
21
B. Drop Keyboard
Plaintiff also argues that USAir unreasonably delayed in
providing her with a drop keyboard. She calculates the delay
as thirteen months: 2 March 1993 ( when her doctor requested
that her work station be modified “according to advice,”)8 to
April 1994 (when she was provided with her own drop
keyboard). Plaintiff, however, was placed on medical leave
from 28 May 1993 until April 1994 because she had exceeded
the sixty-day limit allowed by USAir for injured employees to
work on limited duty. No reason exists to believe that Plaintiff
was placed on medical leave because of the lack of a drop
keyboard. The only delay we consider is the time that Plaintiff
was working at USAir without the drop keyboard.
8
Although Plaintiff understood the requested modifications to
include a drop keyboard, the record is unclear about when the
“advice” about a drop keyboard was communicated to USAir.
22
Considering the evidence in the light most favorable to
Plaintiff, the delay in providing the drop keyboard was three
months (two months before her leave and one month after her
return). The district court did not err in concluding that this
delay was reasonable, considering that Plaintiff had some
access to a drop keyboard position during this time and that
she was not required to type when she had no access.9
AFFIRMED.
9
Plaintiff also argues on appeal that USAir failed to
accommodate her reasonably by providing hourly five-minute
breaks. We decline to address this argument because Plaintiff
did not raise it in the district court. See Depree v. Thomas, 946
F.2d 784, 793 (11th Cir. 1991) (“We have long held that an issue
not raised in the district court and raised for the first time in an
appeal will not be considered by this court.”).
23