Mason v. Northern Indiana Public Service Co. , 135 F. App'x 872 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 3, 2004
Decided May 31, 2005
Before
Hon. JOEL M. FLAUM, Chief Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 03-4183
WILLIETTE MASON, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
v. Indiana, Hammond Division.
NORTHERN INDIANA PUBLIC No. 01 CV 362
SERVICE COMPANY,
Defendant-Appellee. Andrew P. Rodovich,
Magistrate Judge.
ORDER
Appellant Williette Mason sued her former employer, Northern Indiana
Public Service Company ("Nipsco"), alleging discrimination pursuant to the
Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112 et seq. The
district court granted summary judgment in favor of Nipsco, and we affirm the
finding that defendant's legitimate, non-discriminatory reasons for not offering
Mason the position of Accounts Payable Clerk were not pretextual.
No. 03-4183 Page 2
I. BACKGROUND
Williette Mason was initially hired by Nipsco in 1989 as a temporary clerk
and was later hired as a regular employee in 1990, working in a variety of clerical
positions. Mason first began experiencing pain in her elbow, wrist and shoulder in
June 1998 when she was temporarily working as a Mail Processing Cash Clerk.
The pain persisted through early 1999, so Mason sought medical attention and was
diagnosed with "mild right lateral epicondylitis" by Dr. Ralph Richter, a hand
specialist. She returned to work with a physical restriction from any job that
involved rapid or repetitive motion or heavy lifting.
During April and May 1999, Mason's physicians, Dr. Mohamahad Turkmani
and Dr. Marc Levin, diagnosed her with right arm radiculopathy, cervical muscle
spasm, strain and cervical radiculopathy. Subsequent to these diagnoses, in
August 1999, Mason was given the position of Micrographics Archive Clerk
("Archives Clerk"), where her primary duty was to remove heavy-duty staples. This
job aggravated her condition and Mason revisited Dr. Levin, who then further
restricted Mason to lifting only 10 to 20 pounds.
In light of her additional restriction and in order to enable Mason to perform
the essential functions of the Archive Clerk position, Nipsco made a number of
accommodations, including (1) allowing Mason to work at her own pace; (2)
allowing Mason to take additional break time during the workday at her discretion;
and (3) providing a special chair for Mason to use while at work.
Despite these accommodations, Mason again complained of pain and took
sick leave in January 2000, seeking further medical attention from Dr. Nancy
Trimboli, a chiropractor. Dr. Trimboli diagnosed her with "advanced cervical disc
degeneration with nerve root compression." Three months later, in March 2000,
Mason sought treatment from Dr. Antonela Svetic, who diagnosed Mason with
"myofascial neck and thoracic pain." Neither Dr. Trimboli nor Dr. Svetic provided a
definite return-to-work date; Dr. Trimboli provided a "possible" return-to-work date
of April 15, 2000, and Dr. Svetic advised Mason to return only if the job was a "light
duty job avoiding repetitive arm movements."
While Mason was on medical leave, a position as an Accounts Payable Clerk
opened up in March 2000. Under the terms of the Steelworkers Local 13796 union
contract, Mason had first priority to the position given her seniority and because
she had previously been "bumped" out of a similar open position in 1993. It was
unclear, however, whether Mason could perform as an Accounts Payable Clerk.
To determine whether Mason could fulfill the essential functions of the
No. 03-4183 Page 3
position, Nipsco: (1) conducted an analysis of the requirements of the Accounts
Payable Clerk position and concluded that the position required 4 hours of steady
data entry, 2 hours of writing, stapling, and 1.5 hours organizing work, making
phone calls, and filing daily; (2) consulted and evaluated the various medical
restrictions Mason's physicians had imposed; and (3) compared Mason's restrictions
with the essential functions listed in the"Physical Capacity Requirements of
Essential Job Functions of Accounts Payable Clerk" form.
According to Nipsco, the essential functions of an Accounts Payable Clerk
required a full work day of "use of hands to grasp, handle or feel" as well as
continuous "reaching with hands and arms." Nipsco, however, found it difficult to
reconcile this requirement of the job with Mason’s physical restrictions.
Specifically, in evaluating Mason's medical restrictions, Nipsco was unclear
whether the restrictions on repetitive movements encompassed the repetitive
movements inherently associated with typing and computer usage. In addition,
although Drs. Svetic and Trimboli both prohibited Mason from engaging in
repetitive movements, one doctor stated that the restriction was permanent while
the other stated that the restrictions were "most likely not permanent."
When Nipsco pressed Mason’s physicians for additional detail and
clarification, Dr. Svetic stated that Mason could use a computer keyboard but that
she should continue to "perform light duties which means she should avoid
repetitive movements, carrying heavy objects, and using a heavy-duty staple
remover." Dr. Trimboli restricted Mason to “no lifting or pulling staples." According
to Nipsco, these additional details still failed to clear up Nipsco's confusion
regarding whether Mason could perform the essential duties of the Accounts
Payable Clerk that included the repetition involved in typing and using a computer.
Finally, Nipsco presented both doctors with a detailed description of the physical
duties required of the Accounts Payable position and asked both to indicate
whether Mason could perform the specific duties. By this time both doctors
responded that Mason could perform the essential duties of the position, Nipsco had
already independently concluded that, given the repetitive nature of the work,
Mason would be unable to perform the essential functions involved in the job and
subsequently filled the position.
II. ANALYSIS
We review de novo a district court's grant of summary judgment. Kupstas v.
City of Greenwood, 398 F.3d 609, 611 (7th Cir. 2005). Claims of discrimination
under the ADA can be proven through either direct or indirect evidence. Pugh v.
City of Attica, 259 F.3d 619, 625 (7th Cir. 2001). Given that Mason does not
provide any direct evidence of disability discrimination, she must proceed under the
No. 03-4183 Page 4
indirect burden-shifting method. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973); Pugh, 259 F.3d at 625-26.
Mason alleges that Nipsco failed to make reasonable accommodations for her
known physical limitations, and instead gave the open Accounts Payable position to
another applicant. To state a prima facie case of failure to accommodate a
disability under the ADA, Mason must show: (1) she was or is disabled; (2) Nipsco
was aware of her disability; (3) she was otherwise qualified for her job; and (4) the
disability caused the adverse employment action. See Dvorak v. Mostardi Platt
Assocs., 289 F.3d 479, 483 (7th Cir. 2002); Bultemeyer v. Fort Wayne Cmty. Sch.,
100 F.3d 1281, 1284 (7th Cir. 1996). Once Mason has established a prima facie
case, the burden of production shifts to Nipsco to provide a legitimate,
non-discriminatory reason for Mason’s adverse employment action. Dyrek v.
Garvey, 334 F.3d 590, 598 (7th Cir. 2003); Silk v City of Chicago, 194 F.3d 788, 799
(7th Cir. 1999). Once Nipsco satisfies its burden, the burden shifts back to Mason
to show that Nipsco's explanation was pretextual. Dyrek, 334 F.3d at 598; Silk, 194
F.3d at 799.
The district court properly determined that there was sufficient evidence in
the record to establish a prima facie case of discrimination under the ADA,
precluding summary judgment. Turning then to Nipsco's legitimate,
non-discriminatory reasons for denying Mason the position, Nipsco explains that it
did not immediately offer the position to Mason when it became available because
Nipsco was unable to determine whether Mason could perform the essential
functions of the position due to her ambiguous physical restrictions. As a result,
Nipsco felt it needed to consult with her physicians further and clarify the extent of
her physical restrictions. Before Nipsco could fully clarify whether Mason could
perform the essential functions of the position, howeer, Nipsco decided to fill the
Accounts Payable Clerk position with a second viable candidate.
In response, Mason simply disagrees with the conclusions made and the
methodology used by Nipsco, but offers no evidence that indicates Nipsco lied or
acted with discriminatory animus. Specifically, Mason presents no evidence that
Nipsco acted dishonestly in assessing the essential functions of the position or in
seeking further clarification from her physicians. The fact that Mason disagrees
with Nipsco's description of the Accounts Payable Clerk position does not by itself
establish that Nipsco’s proffered reasons are a pretext.
Pretext requires more than a showing that the decision was "mistaken, ill
considered or foolish.” Jones v. Union Pac. R.R., 302 F.3d 735, 743 (7th Cir. 2002)
(quoting Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000)). “[S]o long as [the
employer] honestly believes [its proffered] reasons, pretext has not been shown."
No. 03-4183 Page 5
Jordan, 205 F.3d at 343. Moreover, federal courts do not sit as a "super-personnel
department that reexamines an entity's business decision and reviews the propriety
of the decision." Nawrot v. CPC Int'l, 277 F.3d 896, 906 (7th Cir. 2002) (citing
Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000); Dale v. Chicago Tribune
Co., 797 F.2d 458, 464 (7th Cir. 1986)). In order to establish pretext, therefore, a
plaintiff must show that the employer's proffered explanation is factually baseless,
not the actual motivation for the decision, or insufficient to support the decision.
Dyrek, 334 F.3d at 598. Ultimately the question is not whether the employer's
decision was correct, but rather whether the employer's explanations for its decision
are honest. Dvorak, 289 F.3d at 487.
Here, Mason has failed to show that Nipsco's proffered legitimate,
non-discriminatory reasons for not offering her the position of Accounts Payable
Clerk are false or dishonest. Mason cannot carry her burden of showing pretext by
making bare allegations or by merely disagreeing with Nipsco’s analysis and final
decision. Under the ADA, Nipsco is not required to hold a pool of jobs open, to
create a new position in anticipation of or in response to Mason's return, or to
"bump" other employees to create a vacancy for Mason. See Watson v. Lithonia
Lighting, 304 F.3d 749, 752 (7th Cir. 2002); Gile v. United Airlines, Inc., 95 F.3d
492, 499 (7th Cir. 1996). Since Mason has failed to rebut Nipsco's legitimate,
non-discriminatory reasons for not offering her the Accounts Payable Clerk
position, summary judgment in favor of Nipsco was appropriate.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court's grant of
summary judgment in favor of the defendant, Northern Indiana Public Service
Company.