Amadio, Thomas v. Ford Motor Company ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3728
Thomas Amadio,
Plaintiff-Appellant,
v.
Ford Motor Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 7810--George W. Lindberg, Judge.
Argued September 6, 2000--Decided February 1, 2001
Before Cudahy, Coffey, and Ripple, Circuit Judges.
Cudahy, Circuit Judge. Thomas Amadio was an
hourly employee on the assembly line at Ford
Motor Company’s Chicago Assembly Plant from June
9, 1986, to March 8, 1995, the date of his
termination by Ford Motor Company (Ford). In the
three years prior to his termination, Amadio
suffered from a variety of ailments that led him
to take a total of approximately 70 weeks of sick
leave. Because Amadio allegedly failed to fully
comply with Ford’s sick leave policy, Ford
terminated Amadio’s employment. Following his
termination, Amadio filed this suit against Ford
under the Americans with Disabilities Act (ADA),
42 U.S.C. sec.sec. 12101-12213, claiming that
Ford discriminated against him because of his
disability or, in the alternative, because it
regarded him as having a disability. The district
court granted summary judgment in favor of Ford.
We affirm.
I. BACKGROUND
A. Facts
In reviewing a grant of summary judgment, we
set forth the facts in a light most favorable to
the non-moving party (here, Amadio), drawing all
reasonable inferences in its favor. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
1.
Amadio started at Ford’s assembly plant on June
9, 1986, working, as he would until his
termination, on the assembly line. Amadio began
his career as an assembler, but later graduated
to the general utility position in the chassis
division, a position that qualified Amadio to be
assigned to any duty on the assembly line
involving the production of the car chassis.
Amadio was a member of the International Union
of the United Automobile Workers of America
(UAW), Local 551, as well as of the international
union. The UAW was the certified collective
bargaining representative for all hourly
employees at the assembly plant, and a collective
bargaining agreement (CBA) between Ford and the
UAW governed the terms and conditions of Amadio’s
employment.
The CBA specifically provides for employee sick
or medical leaves. A medical leave under the CBA
is requested from, and granted by, the medical
staff employed at the assembly plant. Generally,
Ford’s medical staff does not conduct an
independent examination of the employee, but
instead decides the propriety of a medical leave
based solely upon documents submitted by the
employee in support of the request. Ford Form
5166, "Medical Leave Authorization for Hourly
Employees," is generally used by employees in
submitting a required physician’s statement and
an anticipated return to work date.
Under the CBA, an employee who does not report
to work after the expiration of his medical leave
is mailed what is known as a "five-day quit"
letter. This letter requires the employee to
report to work or, if unable to do so, to report
to the company medical section, or mail in a form
completed by the employee’s doctor or phone the
assembly plant with an expected return date. If
an employee fails to respond adequately to a
five-day quit letter, the employee may be
terminated.
2.
Amadio appears to have gained an intimate
familiarity with the CBA’s sick leave provisions
in the last three years of his employment.
Indeed, the record indicates that Amadio took 23
medical leaves, and was absent for no less than
70 weeks during this time period. In addition,
Amadio was also subject to several disciplinary
lay-offs during this time period, apparently for
failure to adequately comply with Ford’s sick
leave procedures.
During Amadio’s last three years of employment
with Ford, he suffered from several ailments,
including illnesses (such as an upper respiratory
infection, a cold and similar afflictions), an
occupational back injury, hepatitis B, Brown’s
Syndrome,/1 high blood pressure, a liver
disorder and a urinary tract infection. While
Amadio’s liver disorder and urinary tract
infection were apparently the result of his
hepatitis, the remaining ailments appear to have
been unrelated to one another.
Amadio’s ailments resulted in several extended
absences from work. For example, Amadio was on
continuous medical leave from May 9, 1994 to
October 28, 1994. Amadio was again on leave from
November 2, 1994 to November 21, 1994. And, of
most importance to this case, Amadio was once
again on leave from December 2, 1994 to the date
of his termination on March 8, 1995.
Amadio’s last extended absence from work began
with the diagnosis of Brown’s Syndrome in
November 1994. While being treated for Brown’s
Syndrome, Amadio was diagnosed with hepatitis B.
Shortly thereafter, he was further diagnosed with
liver disease and a urinary tract infection. In
order to tend to this last round of ailments,
Amadio properly secured a medical leave, which he
began on December 2, 1994. This leave expired on
February 26, 1995. Because Amadio had still not
returned to work on February 28, 1995, Louis
Lafayette, a human resource representative in the
labor relations department at the assembly plant,
mailed a five-day quit letter (February 28
Letter) to Amadio. This letter required Amadio to
respond on or before March 7, 1995, by reporting
either to work or to the assembly plant’s medical
section for an evaluation. The letter further
required Amadio to bring "satisfactory medical
evidence" covering his entire period of absence.
On March 6, Amadio chose to report to the
medical section, where he discussed his medical
status with a clerk and a nurse. During his
visit, Amadio provided Ford’s medical staff with
a Ford Form 5166, documenting his absence from
February 27, 1995, to March 6, 1995, but failing
to document his absence prior to February 27,
1995, as requested by the February 28 Letter.
Amadio indicated that he had an upcoming
appointment with a specialist regarding his
urinary tract infection and that he would bring
additional medical leave paperwork after this
appointment. Amadio alleges that Ford’s medical
personnel responded by telling him "no problem,
when you get your information from the specialist
come back and see us."
3.
Lafayette terminated Amadio’s employment on
March 8, 1995, allegedly because Amadio failed to
adequately document his entire medical leave when
he visited the assembly plant’s medical section
on March 6, as required by his February 28
Letter. Consistent with assembly plant custom,
Lafayette sent a memorandum to assembly plant
personnel, informing them of Amadio’s termination
and instructing them that Amadio was to be
referred to the assembly plant’s labor relations
department before going to work or having further
contact with assembly plant medical personnel.
Later in the day on March 8, and subsequent to
Lafayette’s termination of Amadio, Richard
Jordan, another human resources representative at
the assembly plant, mailed a second five-day quit
letter (March 8 Letter) to Amadio. This letter
indicated that Amadio’s medical leave expired on
March 5, and not on February 26, as stated in the
February 28 Letter. The March 8 Letter gave
Amadio until March 15 to return to work./2
Amadio attempted to return to the assembly
plant medical section on March 9, 1995. He had
seen a medical specialist and was hoping to
submit a Ford Form 5166 that indicated an
expected return to work date of March 17, 1995.
However, upon Amadio’s arrival at the medical
section, the medical personnel refused to accept
Amadio’s new Ford Form 5166. Instead, as
instructed by Lafayette’s memorandum, they
referred Amadio to the assembly plant labor
relations department, which informed Amadio of
his termination.
Following an unsuccessful appeal of his
discharge through the CBA’s grievance procedure,
Amadio filed this action against Ford. In this
action, Amadio alleges for the first time that
Ford discriminated against him in violation of
the ADA because Ford knew that he had a
disability or regarded him as having a
disability.
B. District Court Proceedings
The district court issued a one-page order
granting summary judgment in favor of Ford,
finding that Amadio was not a "qualified
individual with a disability" under the ADA. The
district court expressed doubt that Amadio had a
"disability" as defined by the ADA because it
believed that Amadio’s medical conditions were
temporary. The district court also determined
that Amadio was unable to perform all of the
essential functions of his job because he was
unable to come to work on a regular basis. He had
missed approximately 70 weeks of work during the
preceding three years. In addition, the court
found that Ford was not required to continue
granting medical leaves as a reasonable
accommodation of Amadio’s inability to appear for
work. Accordingly, the court held that Amadio was
unable to prove a prima facie case of disability
discrimination under the ADA. Lastly, the court
stated that, even if Amadio had been able to
establish a prima facie case under the ADA, Ford
had articulated a legitimate, nondiscriminatory
reason for Amadio’s termination--that Amadio
failed to adequately document his absence as
required by the February 28 Letter.
II. DISCUSSION
A. Standard of Review
We review de novo the district court’s
disposition of this case on summary judgment. See
Cengr v. Fusibound Piping Sys., Inc., 135 F.3d
445, 450 (7th Cir. 1998). In so doing, we bear in
mind that summary judgment is only proper when
the "pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is
no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). We, of course, view the record in a light
most favorable to the non-moving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).
B. ADA Claim
The ADA states that "[n]o covered entity shall
discriminate against a qualified individual with
a disability because of the disability of such
individual in regard to . . . discharge of
employees . . . ." 42 U.S.C. sec. 12112(a). When,
as here, there is no direct evidence of
discrimination, a plaintiff must instead attempt
to prove a prima facie case under the familiar
scheme of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See DeLuca v. Winer Indus., 53
F.3d 793, 797 (7th Cir. 1995).
A prima facie case under the ADA is established
when a plaintiff proves that: (1) he belongs to
the protected group; (2) he performed his job
satisfactorily; (3) he was subjected to an
adverse employment action; and (4) similarly
situated employees received more favorable
treatment. See DeLuca, 53 F.3d at 797. If the
plaintiff fails to prove any of these elements,
his claim fails. See id. However, if the
plaintiff establishes a prima facie case, the
burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the
defendant’s employment action. See id. If the
defendant clears this hurdle, the burden once
again shifts to the plaintiff to show that the
defendant’s offered reason is merely pretextual.
See id.Here, there is no need to reach the later
inquiries of the McDonnell Douglas analysis
because Amadio has failed to prove even the first
element of a prima facie case--that he is a
member of the protected group. For the purpose of
showing that he is a member of the ADA’s
protected group, a plaintiff must establish that
he is "an individual with a disability who, with
or without reasonable accommodation, can perform
the essential functions of the employment
position that such individual holds or desires."
42 U.S.C. sec. 12111(8). Stated another way, to
prove membership in the ADA’s protected class, a
plaintiff must establish up to three elements:
(1) a disability; (2) the ability to perform the
essential functions of the employment position;
and (3) if unable to perform the essential
functions without accommodation, the existence of
a reasonable accommodation that would allow
performance of the position’s essential
functions. Amadio fails to establish even one of
these three elements, and he thus fails to prove
any part of the first requirement of a prima
facie ADA claim.
1.
We first address Amadio’s claim that he has a
"disability" as that term is employed by the ADA.
The ADA defines "disability" to include: "(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 an
impairment; or (C) being regarded as having such
an impairment." 42 U.S.C. sec. 12102(2); see also
29 C.F.R. sec. 1630.2(g). Amadio concedes that he
does not meet the first two definitions of a
disability but vigorously contends that he
satisfies the third definition--that Ford
regarded him as having an impairment that
substantially limits one or more of his major
life activities.
The purpose of the "regarded as" definition of
a "disability" is to "cover individuals ’rejected
from a job because of the ’myths, fears and
stereotypes’ associated with disabilities.’"
Sutton v. United Airlines, Inc., 527 U.S. 471,
489-90 (1999) (quoting 29 C.F.R. pt. 1630, App.
sec. 1630.2(l)). An individual may prove a
"regarded as" claim by showing that either "(1)
a covered entity mistakenly believes that a
person has a physical impairment that
substantially limits one or more major life
activities, or (2) a covered entity mistakenly
believes that an actual, nonlimiting impairment
substantially limits one or more major life
activities." Sutton, 527 U.S. at 489; see also 29
C.F.R. sec. 1630.2(l).
It is important to note that, in order to
establish a "regarded as" claim, it is not enough
for a plaintiff to show that the employer knew of
the plaintiff’s impairment. See Davidson v.
Midelfort Clinic, Ltd., 133 F.3d 499, 510 (7th
Cir. 1998). The plaintiff must also show that the
employer believed that one or more of the
plaintiff’s major life activities were
substantially limited by the plaintiff’s
impairment. See id.; see also 29 C.F.R. sec.
1630.2(l). Such major life activities include,
for example, "caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." Sinkler v.
Midwest Prop. Mgmt. Ltd. Partnership, 209 F.3d
678, 683-84 (7th Cir. 2000) (citing 29 C.F.R.
sec. 1630.2(i)). The plaintiff must select the
major life activities that he will attempt to
prove the employer regarded as being
substantially limited by his impairment. See
Bragdon v. Abbott, 524 U.S. 624, 637-38 (1998);
Sinkler, 209 F.3d at 683.
In this case, Amadio has alleged that Ford
regarded his hepatitis as limiting only his major
life activity of working. However, before we can
decide whether Ford regarded Amadio’s hepatitis
as limiting his ability to work, we must first
take a detour to decide what facts may inform our
analysis of Amadio’s "regarded as" claim. Perhaps
the best evidence that exists to support Amadio’s
claim resides in the affidavit that he submitted
in response to Ford’s motion for summary
judgment. In his affidavit, Amadio alleged that
in February 1995 he told Lafayette, "I’m blind in
one eye, I just learned that I have hepatitis B
so come on, give me a break and quit riding me
about the medical leaves." Amadio further alleged
that Lafayette replied by saying that he had
"heard hepatitis B was contagious and maybe
[Amadio] should not come around the Plant."
Amadio’s affidavit statements directly
contradict the testimony he gave at an earlier
deposition, during which he was asked, "Was there
any point in time when you told a Ford employee,
a management person, that you were handicapped or
disabled?" To this question, Amadio simply
responded, "No." Further, at his deposition
Amadio was asked at length about conversations he
had with Lafayette, and not once did Amadio
disclose the conversation he alleged in his
affidavit. He even answered in the negative after
being asked, "Just for the sake of completeness
can you remember at all any other difficult
conversations with Lou Lafayette other than
anything you’ve testified to so far?"
Amadio responds to the contradictions in his
testimony by arguing that Ford should have asked
more specific questions at his deposition. It is,
however, difficult to imagine how Ford could have
been more specific. At the very least, being told
that one’s ailment is contagious and that one is
no longer welcome around the plant certainly
seems to qualify as a "difficult conversation."
Amadio should have mentioned it as such during
his deposition, especially given his detailed
recollection of other conversations with
Lafayette. For example, Amadio was asked the
following questions during his deposition:
Then I believe you said that Lou Lafayette gave
you a hard time and said things along the lines
of you need to show up to work; is that a fair
characterization of your testimony? [affirmative
response omitted] . . . Can you tell me as
specifically as you can exactly what he said in
that regard?
In response, Amadio remembered that sometime
between January 27, 1995 and February 3, 1995,
Lafayette told him "to get your ass back to work
or you’re going to get your ass fired."
It is by now well-settled that a party may not
attempt to survive a motion for summary judgment
by manufacturing a factual dispute through the
submission of an affidavit that contradicts prior
deposition testimony. Consequently, "[w]here a
deposition and affidavit are in conflict, the
affidavit is to be disregarded unless it is
demonstrable that the statement in the deposition
was mistaken, perhaps because the question was
phrased in a confusing manner or because a lapse
of memory is in the circumstances a plausible
explanation for the discrepancy." Russell v.
Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995)
(citing Slowiak v. Land O’Lakes, Inc., 987 F.2d
1293, 1297 (7th Cir. 1993)). As already noted,
Amadio provided no acceptable explanation for his
failure to describe Lafayette’s alleged
statements during his deposition. As such,
because Amadio’s affidavit directly contradicts
his prior deposition testimony, the affidavit is
inadmissible, and we will only consider Amadio’s
deposition testimony. See Piscione v. Ernst &
Young, L.L.P., 171 F.3d 527, 532-33 (7th Cir.
1999); Slowiak, 987 F.2d at 1295.
Amadio rightly points out that Lafayette’s
testimony is seemingly contradictory as well. In
Lafayette’s affidavit in support of Ford’s motion
for summary judgment, Lafayette maintained that,
at the time of his decision to terminate Amadio
he did not know that Amadio had been suffering
from blindness in his left eye, had hepatitis or
had any other infection. On the other hand,
Lafayette testified at his deposition that he was
of the "opinion" that he was aware of Amadio’s
medical information prior to terminating Amadio.
Just as a non-moving party may not use a
contradictory affidavit to manufacture a factual
dispute for the purpose of surviving summary
judgment, a moving party may not rely on a
contradictory affidavit to negate the existence
of a factual dispute for the purpose of winning
summary judgment. As a result, and because we
view the record in a light most favorable to
Amadio, we assume that Lafayette was aware of
Amadio’s hepatitis at the time Lafayette
terminated Amadio’s employment.
Thus, after excluding the contradictory
affidavits, and viewing the remaining facts in
the light most favorable to Amadio, we are left
with the following facts against which to examine
Amadio’s claim that Ford regarded him as
disabled: (1) Amadio never told a Ford employee
that he was handicapped or disabled; (2) Amadio
never had a difficult conversation concerning his
hepatitis with Lafayette; and (3) Lafayette knew
of Amadio’s hepatitis before he terminated
Amadio’s employment.
On these facts, no reasonable jury could find
that Ford regarded Amadio as having a disability
that substantially impaired his ability to work.
There is no evidence that Amadio ever discussed
the reasons for his medical leaves with the labor
relations department at the assembly plant, or
with Lafayette in particular. Even though we
assume, for purposes of reviewing a grant of
summary judgment, that Lafayette did know of
Amadio’s hepatitis at the time Lafayette
terminated Amadio’s employment, this knowledge is
insufficient, in itself, to show that Lafayette
regarded Amadio as substantially limited in the
life activity of working. To divine from the
known facts the conclusion that Lafayette
terminated Amadio’s employment out of a fear of
Amadio’s hepatitis would require us not to draw
a reasonable inference in Amadio’s favor, as we
are required to do in reviewing an order of
summary judgment, but to engage in speculation.
It is well-settled that speculation may not be
used to manufacture a genuine issue of fact. See
Gorbitz v. Corvilla, Inc., 196 F.3d 879, 882 (7th
Cir. 1999); Patterson v. Chicago Assoc. for
Retarded Citizens, 150 F.3d 719, 724 (7th Cir.
1998). Accordingly, Amadio has failed to show
that Ford regarded him as being disabled.
2.
Even if Amadio had been able to prove that Ford
regarded him as having a disability, Amadio would
still need to establish that, with or without
reasonable accommodation, he could perform the
essential functions of his employment position.
See Deane v. Pocono Med. Ctr., 142 F.3d 138, 140
(3d Cir. 1998); see also 42 U.S.C. sec. 12111(8);
29 C.F.R. sec. 1630.2(m).
We first recognized work attendance as an
essential requirement of employment in Vande
Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 544
(7th Cir. 1995) (attendance required of clerical
worker position). Since Vande Zande, the list of
occupations in Seventh Circuit cases requiring
attendance as an essential function has grown to
include, in addition to clerical worker, the
positions of teacher, Nowak v. St. Rita High
Sch., 142 F.3d 999 (7th Cir. 1998), account
representative, Corder v. Lucent Tech., Inc., 162
F.3d 924 (7th Cir. 1998), production employee,
Waggoner v. Olin Corp., 169 F.3d 481 (7th Cir.
1999), and plant equipment repairman, Jovanovic
v. In-Sink-Erator Div. of Emerson Elec. Co., 201
F.3d 894 (7th Cir. 2000). While we will not say
that attendance is an essential function of every
employment position, Amadio’s position on the
assembly line at Ford’s assembly plant can easily
be added to the "attendance required" list.
Indeed, the requirement that an employee be in
attendance is "especially true in factory
positions . . . where the work must be done on
the employer’s premises; maintenance and
production functions cannot be performed if the
employee is not at work." Jovanovic, 201 F.3d at
900.
It is clear that Amadio’s record of attendance
does not meet even the minimum requirements of
his position. Amadio took 23 medical leaves
during his last three years of employment
(totaling approximately eighteen months of
absence) and was disciplined several times in
connection with his absenteeism. We have
consistently found that plaintiffs who have
attendance records similar to or substantially
better than Amadio’s do not qualify for
protection under the ADA. See Jovanovic, 201 F.3d
at 900 (employee missing twenty-four days in past
twelve months not qualified); Waggoner, 169 F.3d
at 485 (employee missing 5 months of work, and
showing up late or not at all for forty days in
a fourteen-month period, not qualified); Corder,
162 F.3d at 928 (employee missing eighteen months
of work not qualified); Nowak, 142 F.3d at 1003-
04 (employee missing eighteen months of work not
qualified). Similarly, Amadio’s lengthy absences
from a job that requires regular attendance lead
us to conclude that Amadio could not perform all
essential functions of his employment position.
3.
When a disabled employee cannot perform the
essential functions of a job, the court must
consider whether any reasonable accommodation by
the employer would help the employee to perform
those functions. See Cochrum v. Old Ben Coal Co.,
102 F.3d 908, 911 (7th Cir. 1996); see also 42
U.S.C. sec. 12112(b)(5)(A). The ADA states that
"reasonable accommodation" may include "job
restructuring, part-time or modified work
schedules, reassignment to a vacant position,
acquisition or modification of equipment or
devices, appropriate adjustment or modifications
of examinations, training materials or policies,
the provision of qualified readers or
interpreters, and other similar accommodations
for individuals with disabilities." 42 U.S.C.
sec. 12111(9)(B). However, if an accommodation
"would impose an undue hardship" on the operation
of the employer’s business, the accommodation
need not be made. 42 U.S.C. sec. 12112(b)(5)(A).
The facts relevant to a determination of whether
a medical leave is a reasonable accommodation are
the facts available to the decision-maker at the
time of the employment decision. See Bay v.
Cassens Transp. Co., 212 F.3d 969, 974 (7th Cir.
2000); Nowak, 142 F.3d at 1003.
When an employee is unable to perform the
essential function of attending his employment,
few, if any, reasonable accommodations exist. In
fact, if an employee cannot regularly attend
work, the only imaginable accommodation is an
open-ended schedule that allows the employee to
come and go as he pleases. This is especially
true of employees like Amadio who seemingly take
advantage of a company’s apparently generous
leave policy to show up for only a few days at a
time between absences that occasionally stretch
over several months. We are thus led here to the
same conclusion we reached in Jovanovic: "We
would be hard-pressed to imagine a manufacturing
facility that could operate effectively when its
employees are essentially permitted to set their
own work hours, and we thus reject such a
schedule as an unreasonable accommodation under
the circumstances of this case." 201 F.3d at 899
n.9.
Amadio attempts to distinguish his case by
arguing that his poor attendance record is not
indicative of his ability to work at the time he
was fired. Amadio maintains that he eventually
would have been able to work had Ford reasonably
accommodated him with the one week of additional
medical leave he requested as necessary to return
to full health. Amadio bases this argument on his
appearance at the assembly plant medical section
on March 9, 1995, the day after he was
terminated, with a doctor’s note giving his
expected date of return to work as March 17,
1995.
Undoubtedly, a short, one-week medical leave
constitutes a reasonable accommodation in many
circumstances. Here, however, we have already
determined that Amadio is unable to regularly
attend his job. Thus, in order to claim that a
continued absence from his job would have been a
reasonable accommodation, Amadio must do more
than merely allege that he would have been able
to return to work on a full-time basis if only he
had been given one more week of leave. In
Amadio’s case, Ford had every reason to believe
that giving Amadio additional leave would be an
ineffectual gesture. Amadio’s record of
attendance clearly indicated that, even if he had
returned to work in one week, he was not likely
to remain for very long before a new ailment
afflicted him. Amadio took 23 medical leaves, and
was absent for more than 70 weeks during the last
three years of his employment. In addition,
during his employment at Ford, Amadio was
disciplined on several occasions for absenteeism,
including a 30-day layoff for insufficient
documentation of a medical leave, a one-week
layoff relating to a previous medical leave, and
a number of three-day and one-day layoffs. In
light of these facts, the extension of Amadio’s
already lengthy leave by one more week would have
been a futile concession, not a reasonable
accommodation./3 Indeed, while we have not
considered this fact in rendering our decision,
we note that Ford’s suspicions were ultimately
realized; in spite of Amadio’s contention that he
merely needed one week before being able to
return to work, he did not in fact find a new job
until over one year had elapsed because his
hepatitis remained actively symptomatic.
Amadio makes one last attempt to show that an
extended leave would have been a reasonable
accommodation by arguing that Ford was bound by
its obligations under the CBA, which explicitly
provided for medical leaves. However, the fact
that Ford generously granted extended leaves to
its employees--in rare cases, up to two years--
does not necessarily bind Ford to repeatedly
grant successive leaves to Amadio, especially
since Amadio had a history of abusing his medical
leave status. Usually, an employee on medical
leave will be absent for a determinate period of
time. In such a circumstance, an employer can
hire temporary help or otherwise plan to
compensate for the employee’s absence on the
production line. However, with a chronically
absent employee like Amadio, the employer never
knows when the employee’s medical leave will
really terminate since the employee is likely to
request yet another leave shortly after returning
to work following the previous leave. This
pattern of behavior prevents the employer from
ever being able to adequately compensate for the
missing employee’s frequent, yet unpredictable
absences.
While an employer should show patience when an
employee first falls sick, if an employer "bends
over backwards to accommodate a disabled worker
. . . it must not be punished for its generosity
by being deemed to have conceded the
reasonableness of so far-reaching an
accommodation." Vande Zande, 44 F.3d at 545; see
also Duckett v. Dunlop Tire Corp., 120 F.3d 1222,
1225 (11th Cir. 1997) (An employer is not
necessarily required to apply its own established
business policy as a reasonable accommodation.);
Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1994)
("A particular accommodation is not necessarily
reasonable, and thus federally mandated, simply
because the [employer] elects to establish it as
a matter of policy."). As noted, Ford was more
than generous when it granted Amadio the numerous
and extended leaves he has received; Ford was
under no duty to continue to do so indefinitely,
given that Amadio showed no promise of ever
committing himself to his work.
III. CONCLUSION
Because Amadio fails to establish even the
first element of a prima facie case under the
ADA, we need not address the parties’ dispute
regarding the validity of Ford’s stated reason
for releasing Amadio. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) ("[A] complete
failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders
all other facts immaterial."). For the foregoing
reasons, the district court’s entry of summary
judgment in favor of Ford Motor Company is
Affirmed.
/1 Brown’s Syndrome is an inflammation of the muscle
tissue that controls the eye. In Amadio’s case,
this disease led to blindness in Amadio’s left
eye lasting from November 1994 through January
1995.
/2 The parties dispute the meaning of this second
five-day quit letter. Amadio maintains that this
second letter proves that his medical leave had
been extended until at least March 5 and that,
therefore, Lafayette had prematurely terminated
Amadio because of his disability. Amadio further
supports his argument by alleging that Lafayette
told him to stay away from the assembly plant
because Lafayette understood hepatitis to be
contagious. On the other hand, Ford ascribes no
meaning to the March 8 Letter, arguing that the
letter was an oversight. The dispute is
immaterial, however, because it is relevant only
to a determination of Ford’s motive for
terminating Amadio. We need not consider Ford’s
motive because we find that Amadio was not a
"qualified individual with a disability" under
the ADA. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) ("[A] complete failure of proof
concerning an essential element of the nonmoving
party’s case necessarily renders all other facts
immaterial.").
/3 In addition, we observe that Amadio would lose on
his reasonable accommodation claim at a trial.
"An employee has the initial duty to inform the
employer of a disability before ADA liability may
be triggered for failure to provide
accommodations--a duty dictated by common sense
lest a disabled employee keep his disability a
secret and sue later for failure to accommodate."
Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d
1130, 1134 (7th Cir. 1996). As determined above,
there is no admissible evidence that Ford knew of
Amadio’s alleged disability, or even regarded him
as having one, at the time he was fired.
Accordingly, Ford cannot be held liable for
failing to accommodate Amadio.
Amadio would also likely lose on his reasonable
accommodation claim because he did not make his
request for a reasonable accommodation until
after he was terminated. As announced in Webster
v. Methodist Occupational Health Ctrs., Inc.,
"[a]n employee cannot refuse reasonable
accommodations during the interactive process the
[ADA] contemplates, and then after dismissal
suggest something different and claim that the
employer still has a duty to consider further
accommodations," 141 F.3d 1236, 1238 (7th Cir.
1998). Similarly, an employee cannot wait until
after dismissal to inform an employer of his
disability and request an accommodation for the
first time, as Amadio attempted to do here.