Terri Basden v. Professional Transportation ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2880
T ERRI B ASDEN,
Plaintiff-Appellant,
v.
P ROFESSIONAL T RANSPORTATION, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 10 CV 00002—William T. Lawrence, Judge.
A RGUED F EBRUARY 10, 2012—D ECIDED M AY 8, 2013
Before R IPPLE and R OVNER, Circuit Judges, and C OLEMAN,
District Judge.Œ
C OLEMAN, District Judge. Terri Basden filed a com-
plaint alleging that she was terminated from her em-
ployment with Professional Transportation, Inc. (PTI) in
Œ
Hon. Sharon Johnson Coleman of the Northern District of
Illinois, sitting by designation.
2 No. 11-2880
violation of the Americans With Disabilities Act (ADA)
and the Family and Medical Leave Act (FMLA). The
district court found that Basden had failed to present
evidence sufficient to establish a prima facie right to the
protection of either statute and granted summary judg-
ment in favor of PTI. We affirm.
The parties do not dispute the facts underlying this
action. PTI provides around-the-clock ground transporta-
tion service for railroads seeking to move their train
crews from one route to another. Basden was engaged
by PTI as a dispatcher on June 29, 2007. Employees at
PTI’s dispatch center were subject to an attendance
policy that defined an incident of absenteeism as a
period away from a scheduled shift for a minimum of
four hours. An absence of up to five consecutive shifts
for a single reason could be considered one incident.
The attendance policy provided that after an employee’s
fifth incident within a year, a verbal warning could
be given; after her sixth incident, a written warning
could be given; after her seventh, a three-day suspension
could be given; and after her eighth, she could be termi-
nated. The policy did not differentiate between ab-
sences for medical reasons and other absences.
Basden had two absentee incidents in 2007, and the
record does not reveal the cause of those absences.
In January 2008, Basden became dizzy and fell in her
home. She was treated at an emergency room, and the
attending physician referred her to a neurologist after
a CT scan showed abnormalities that suggested that
she might have multiple sclerosis. She was absent from
No. 11-2880 3
work from January 14 through January 17, and this
absence was treated as her third incident. She had an-
other episode of dizziness and returned to the emer-
gency room on February 1, which resulted in another
absence and her fourth incident under the dispatch
center policy. Basden was absent from March 13 through
March 15, which was considered her fifth incident
and prompted a verbal warning. Absences on April 7,
April 8, and April 11 through April 14 were treated as
a sixth incident, resulting in a written warning.
She provided a note from her physician after each of
her absences, and made an appointment to see an
MS specialist on June 23, 2008, the first available date.
She had been assigned “closer” duties, which required
more typing than the pure dispatcher role, and when
she began to feel numbness in her hands, she asked to
be relieved of closer assignments. The company moved
her back to dispatcher, but eventually returned her
to the closer duties. Basden also asked to be moved to
a part-time position. The position she sought in her
first request was given to another employee, but a
second request was granted and she moved to part-time
work on May 1, 2008.
Basden was absent again on May 22, 2008 and was
suspended for three days. PTI’s policy permitted an
employee with at least a year’s tenure to request an
unpaid 30-day leave of absence. On May 23, 2008,
Basden submitted a leave request form, even though
she had not yet been with the company for a year. On
the form, she indicated that the leave was necessary
4 No. 11-2880
because of “complications due to medical illness (MS).”
That request was denied, and when Basden failed to
return to work following her suspension, her employ-
ment was terminated. Basden’s complaint alleged that
her termination violated both the ADA and the FMLA.
The district court entered summary judgment in favor
of PTI. We review that decision de novo. Narducci v.
Moore, 572 F.3d 313, 318 (7th Cir. 2009).
ADA Claim
Basden claims that PTI violated the ADA when it
denied her request for a 30-day leave and instead termi-
nated her. To prevail on an ADA claim, a plaintiff must
show that (1) she is disabled; (2) she is otherwise
qualified to perform the essential functions of her job
with or without reasonable accommodation; and (3) her
employer took an adverse job action against her because
of her disability or without making a reasonable accom-
modation for it. Winsky v. Cook County, 563 F.3d 598,
603 (7th Cir. 2009). To survive a motion for summary
judgment, she must present the court with evidence that,
if believed by a trier of fact, would establish each of the
elements of her claim. Kotwica v. Rose Packing Co., Inc., 637
F.3d 744, 748 (7th Cir. 2011). In the present case, Basden
failed to present sufficient evidence that she was
qualified to perform the essential functions of her job
even with a reasonable accommodation.
An employer is generally permitted to treat regular
attendance as an essential job requirement and need not
accommodate erratic or unreliable attendance. EEOC v.
No. 11-2880 5
Yellow Freight System, Inc., 253 F.3d 943, 948-49 (7th Cir.
2001). A plaintiff whose disability prevents her from
coming to work regularly cannot perform the essential
functions of her job, and thus cannot be a qualified indi-
vidual for ADA purposes. Waggoner v. Olin Corp., 169
F.3d 481, 484-85 (7th Cir. 1999). Her ability to come to
work, or to otherwise perform the essential functions of
her job, is examined as of the time of the adverse em-
ployment decision at issue. Ammons v. Aramark Uniform
Services, Inc., 368 F.3d 809, 818 (7th Cir. 2004). In
response to an employer’s motion for summary judg-
ment, it is the plaintiff’s burden to produce evidence
sufficient to permit a jury to conclude that she would
have been able to perform the essential functions of
her job with a reasonable accommodation. Hammel v. Eau
Galle Cheese Factory, 407 F.3d 852, 863-64 (7th Cir. 2005).
As of the May 2008 termination of her employ-
ment, Basden had been told by physicians that it was
likely that she had MS, but had not yet seen the
specialist who made the conclusive diagnosis of her
condition. The record indicates that she did not start
medication for MS until July 2008.
The record does not show the extent to which that
medication alleviated her symptoms. At her deposition,
plaintiff testified that her condition got worse “a couple
times” after she left PTI, then “leveled off.” Her next
employment was with a company called “Koch Originals.”
While the record does not explicitly detail the length of
Basden’s stay at Koch, her deposition testimony does
suggest that her tenure was short. She recalled that she
6 No. 11-2880
worked at Koch during September 2008, and at her
June 2010 deposition, she testified that she had just be-
gun a new part-time position after being unemployed
for approximately a year and a half. While working
at Koch, Basden had a two-week absence that she at-
tributed to MS. Even with all reasonable inferences
from the foregoing drawn in Basden’s favor, we cannot
conclude that the evidence of her subsequent employ-
ment would permit a jury to find that the combination
of leave and medication would have enabled her to
return to work on a regular basis.
Basden did not present medical evidence regarding
the effectiveness of her treatment. At her deposition, she
testified only that at the time she requested leave from
PTI, she had hoped that a diagnosis from a specialist
and the use of prescription medication would allow her
to return to work. In Weigel v. Target Stores, 122 F.3d 461,
468-69 (7th Cir. 1997), this court found that an affidavit
from the plaintiff’s psychiatrist stating that “there was
a good chance” that she would be likely to be able to
return to work with treatment was too conclusory and
uninformative to support a conclusion that an accom-
modation would have been successful. The court
affirmed summary judgment in favor of the employer
because of the plaintiff’s inability to establish the ex-
istence of a genuine issue of fact on the question of her
status as a qualified individual with a disability. Id. at 469.
In the present case, Basden responded to PTI’s sum-
mary judgment motion with evidence that medication
improved her condition; that she had hoped for enough
No. 11-2880 7
improvement to return to work regularly after leave;
and that she subsequently had brief employment that
was interrupted by a two-week absence caused by her
condition. This evidence was insufficient to support a
factual finding that Basden was able to come to work
regularly at the time of her termination, or that her
regular attendance could have been expected following
the leave she sought or with any other accommodation.
Basden contends that Haschmann v. Time Warner Enter-
tainment Co., 151 F.3d 591 (7th Cir. 1998), supports her
argument for reversal of the district court, but the facts
presented to the Haschmann court are distinguishable
from those at issue here. In Haschmann, the plaintiff
had been diagnosed before her termination with a condi-
tion that caused an “intermittent” need for leave but
permitted her return to a normal work schedule there-
after. 151 F.3d at 599-600. The plaintiff’s prediction of
a brief need for leave was supported by her doctor.
Id. at 601. In contrast, at the time of Basden’s termina-
tion, she had no final diagnosis, no prescribed treat-
ment, and no anticipated date by which she could
have been expected to attend work regularly even if she
had been granted leave.
Basden also argues that PTI failed to engage in the
interactive accommodation exploration process re-
quired by the ADA and that it did not establish that
the leave she sought was unreasonable. She correctly
notes that an employee’s request for an accommodation
requires the employer to engage in a flexible, interactive
process to identify a reasonable accommodation. Beck v.
8 No. 11-2880
University of Wisconsin Bd. of Regents, 75 F.3d 1130,
1135 (1996). Basden sought a 30-day leave that, according
to PTI’s policy, she would have been eligible to request
with two weeks’ additional seniority. Rather than
engage in an interactive process, PTI denied the request
for leave and terminated her. On the record presented,
we cannot conclude that PTI’s response to Basden’s
request was appropriate under the ADA.
However, the failure to engage in the interactive
process required by the ADA is not an independent
basis for liability under the statute, and that failure is
actionable only if it prevents identification of an appro-
priate accommodation for a qualified individual. Rehling
v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000).
Even if an employer fails to engage in the required
process, that failure need not be considered if the em-
ployee fails to present evidence sufficient to reach the
jury on the question of whether she was able to per-
form the essential functions of her job with an accom-
modation. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d
560, 563-64 (7th Cir. 1996). Because there was no evi-
dence permitting a conclusion that Basden was a
qualified individual for ADA purposes, the district court
correctly entered summary judgment for PTI on her
ADA claim despite any shortcomings in PTI’s response
to her request.
FMLA Claim
Basden also sought relief from PTI for interference
with her FMLA rights. It is undisputed that Basden was
No. 11-2880 9
terminated before she had been employed by PTI for
12 months. According to the statute’s explicit terms,
employees without 12 months of tenure are ineligible
for its protection. 29 U.S.C. § 2611(2)(A)(I). Basden
argues that the statute should not be interpreted to pre-
clude relief for non-eligible employees who request
leave for future periods. However, her request, made
before she was eligible for FMLA protection, sought
leave that would have commenced before her eligibility
began. Basden cites no authority for extending the
statute’s protections to her situation, and arguments for
such extension have been squarely rejected elsewhere.
“There can be no doubt that the request—made by an
ineligible employee for leave that would begin when
she would still have been ineligible—is not protected
by the FMLA.” Walker v. Elmore County Board of Educ.,
379 F.3d 1249, 1253 (11th Cir. 2004). We find no basis
for such extension here and hold that the district
court properly granted summary judgment for PTI on
Basden’s FMLA claim.
For the foregoing reasons, the judgment of the dis-
trict court is affirmed.
5-8-13