Hawkins v. Schwan's Home Service, Inc.

FILED
United States Court of Appeals
Tenth Circuit
February 19, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
DAVID HAWKINS,
Plaintiff - Appellant,
v. No. 13-6149
SCHWAN’S HOME SERVICE, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:12-CV-00084-HE)
Mark E. Hammons (Amber L. Hurst with him on the briefs), Hammons, Gowens,
Hurst & Associates, Oklahoma City, OK, for Plaintiff-Appellant.
Alan L. Rupe (Jason M. Janoski with him on the brief), Kutak Rock LLP,
Wichita, KS, for Defendant-Appellee.
Before KELLY, LUCERO, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
David Hawkins filed claims against his former employer, Schwan’s Home
Service, Inc. (“SHS”), alleging violations of the Americans with Disabilities Act
as amended (“ADAAA”) 1 and Oklahoma law. The district court granted summary
judgment in favor of SHS. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I
In 1987, Mr. Hawkins began working for SHS, a company that sells and
delivers frozen food products throughout the United States. He became a facility
supervisor at SHS’s Alva, Oklahoma, sales and distribution depot in 2003 and, at
all times relevant to these proceedings, reported to Jim Hillaker, the depot’s
territory sales leader. Mr. Hawkins has described his chief responsibilities as
1
Although Mr. Hawkins initially stated that he was bringing his
federal claims pursuant to “the Americans with Disabilities Act,” or “ADA,” “as
set forth in 42 U.S.C. § 12111,” Aplt. App. at 1 (Compl., filed Jan. 25, 2012), he
argued in subsequent briefing that he was “a disabled person under the ADAAA,”
id. at 182 (Mot. for Partial Summ. J., filed Mar. 15, 2013). The district court
analyzed the parties’ cross-motions for summary judgment by noting that the
ADAAA applied generally and then by discussing the “essential-qualifications”
issue with reference to the ADA standard. See id. at 1054–56 (Order, filed May
28, 2013). We discern nothing objectionable about this approach. As we have
explained, Congress’s “express purpose” in amending the ADA was to “revers[e]
the narrow judicial interpretation of disability . . . by, inter alia, expanding what
is considered a major life activity and directing courts to interpret ‘substantial
limitation’ broadly in favor of coverage.” Smothers v. Solvay Chems., Inc., 740
F.3d 530, 545 n.16 (10th Cir. 2014) (emphasis added) (citations omitted).
Accordingly, noting that the scope of this appeal is confined to whether Mr.
Hawkins was a qualified individual with a disability—and that the question of his
disability vel non is not disputed here—we will (1) accept the premise that Mr.
Hawkins’s lawsuit proceeds under the ADAAA (and refer to the ADAAA as the
relevant statute infra); and (2) as the district court did, apply the standards of the
ADA—which have continued in force after the amendments and were not affected
by them—in our discussion of whether Mr. Hawkins was a “qualified” individual
within the meaning of the statute.
2
“ordering products to be delivered by [SHS’s] delivery drivers, scheduling, and
loading trucks with products.” Aplt. App. at 3.
SHS has an official written description for the facility-supervisor position.
That document indicates that a facility supervisor serves the purpose of
“supervising the depot material handlers and coordinat[ing] the product receiving
and material handling activities necessary to fulfill the sales activities at assigned
depot(s).” Id. at 594 (Position Description, dated Apr. 2005). The job
description’s “Duties and Responsibilities” section provides, in pertinent part,
that a facility supervisor “[e]xecutes the company’s Good Warehouse Practices
(GWP) and follows any government regulations” and manages the company’s
fleet of delivery trucks, “which includes maintaining Department of
Transportation (DOT) compliance files . . . , vehicle registration and license, and
periodic fleet safety inspections.” Id.According to Mr. Hillaker, who supervised truck operations as part of his
leadership duties, fleet management often included driving company trucks to
service appointments or otherwise “[s]huttling trucks to salespeople” to ensure
product delivery. Id. at 603 (Hillaker Dep., dated Jan. 22, 2013). Mr. Hillaker’s
observation that the facility-supervisor position involved driving is bolstered by
the “Qualifications” section of SHS’s facility-supervisor job description, which
indicates that an “excellent driving record” is required. Id. at 594 (capitalization
altered). The job description further specifies that “meet[ing] the Federal
3
Department of Transportation eligibility requirements, including appropriate
driver’s license and corresponding medical certification,” is a “condition of
employment for this position.” Id. Additionally, it lists several “essential
abilities and functions” that directly implicate health and physical abilities, such
as seeing, balancing, moving continuously, lifting and pulling up to fifty pounds,
and using precise hand movements. Id. at 596 (capitalization altered).
In 2007, when the Alva depot “shut . . . down for a period of time,” SHS
“had [Mr. Hawkins] drive [company] trucks from Alva to Enid to load and drive
the truck back from Enid to Alva, and then do the same in Woodward . . . [and]
Laverne.” Id. at 632 (Hawkins Dep., dated Dec. 5, 2012). Doing so required Mr.
Hawkins to be “DOT-qualified and have a Medical Examiner’s Certificate.” Id.
at 834 (Valade Decl., dated Mar. 23, 2013). Matthew Valade, who was a facility
supervisor at the Alva depot in 2011, explained that these were run-of-the-mill
requirements. Indeed, during Mr. Valade’s interview, Mr. Hillaker indicated that
Mr. Valade “m[ight] have to drive a Schwan’s route truck as part of [the] job.”
Id. For his part, Mr. Hawkins has acknowledged that SHS mandated a DOT
medical certification, and he has offered documentation to corroborate his prior
compliance with that requirement.
Mr. Hawkins suffers from several health conditions that came to a head in
2010. Beginning in March of that year, he was “in and out of the
hospital . . . with heart problems and fainting spells and very high blood
4
pressure.” Id. at 540 (Email from David Hawkins to Jeff Booth, dated June 14,
2010). Mr. Hawkins experienced a minor stroke in June of 2010, but he resumed
working soon afterward. In order to manage his symptoms, Mr. Hawkins had a
pacemaker implanted and followed a comprehensive medication regimen. During
this time period, several of Mr. Hawkins’s coworkers communicated to him that
they were concerned about his health.
On June 14, 2010, Mr. Hawkins emailed human-resources manager Jeff
Booth to report that Mr. Hillaker wanted him “to drive trucks back and [forth] to”
a mechanic in Enid, Oklahoma, as well as “to drivers on routes” in Woodward,
Oklahoma. Id. At a subsequent deposition, Mr. Hawkins explained that these
requests had taken place in May and June of 2010—when his health issues were
escalating—and that Mr. Hillaker was “telling everyone in Enid” that Mr.
Hawkins was “a liability.” Id. at 632 (internal quotation marks omitted). He
further suggested that SHS typically did not require facility supervisors to drive
trucks to the mechanic, see id. at 631–32, and that he believed Mr. Hillaker had
begun asking him to do so in order to “force[ ] [him] to quit,” id. at 631. Melvin
Casion, who worked in operations at SHS, offered similar testimony—viz., that
Mr. Hillaker had expressed that he was “very upset about [Mr. Hawkins] being in
the hospital . . . [and] wanted him gone.” Id. at 263 (Casion Dep., dated Sept. 19,
2012).
On June 21, 2010, Mr. Hawkins failed a routine DOT medical evaluation.
5
See id. at 478 (Med. Examination Report, dated June 21, 2010) (marked “based on
health history above[,] not able to pass” (capitalization altered)). He therefore
did not receive the medical certification SHS demanded of all facility supervisors.
The next day, SHS gave Mr. Hawkins a letter notifying him that he had “been
placed on a 30 day company requested unpaid leave, effective June 21, 2010,
because [he] did not pass [his] DOT recertification.” Id. at 229 (Letter from
Nancy Green to David Hawkins, dated June 22, 2010). The letter informed Mr.
Hawkins that he had thirty days to obtain this certification or “to find a non-DOT
position.” Id. Mr. Hawkins subsequently testified that he perused job listings on
SHS’s public website. However, he “did not apply for any jobs.” Id. at 1053.
On June 23, 2010, Mr. Hawkins signed a termination form that stated, in
relevant part, as follows:
I, David Hawkins, hereby voluntarily resign from my position as
Facility Manager[] with Schwan’s, Inc.[,] a subsidiary
corporation of The Schwan Food Company. In voluntarily
resigning my employment, I acknowledge that I am taking this
action for the following reason(s)[,] . . . which is unrelated to any
action or statement(s) made in conjunction with, by, or on behalf
of my employer, or any representation of my employer.
Id. at 230 (Termination Form, dated June 23, 2010) (capitalization altered).
Despite the foregoing language indicating that his resignation was voluntary, Mr.
Hawkins wrote on the form that the reason for his action was: “Force[d] to quit
for medical reason.” Id. (capitalization altered).
Before his separation from SHS, Mr. Hawkins began the process of seeking
6
Social Security Disability Insurance (“SSDI”) benefits from the Social Security
Administration (“SSA”). In his SSDI application, which he signed on April 6,
2010, he stated that he was unable to work and had “not been able to work for 5
weeks.” Id. at 1002 (SSDI Appl., dated Apr. 6, 2010) (capitalization altered). He
also indicated that one of his daily activities was to “transport trucks.” Id. at 997(capitalization altered). The SSA denied Mr. Hawkins’s claim “initially on
October 14, 2010, and upon reconsideration on January 10, 2011.” Id. at 925(SSA Decision, dated Nov. 4, 2011). After a September 2011 hearing, an
administrative law judge determined that Mr. Hawkins was not disabled.
In a brief submitted to the SSA Appeals Council through his claims
representative, Mr. Hawkins alleged that the “record [would] show that Mr.
Hawkins would have difficulty with sustained work.” Id. at 822 (Appeal Br.,
dated Dec. 21, 2011). He characterized his physical status as “less than
sedentary” and claimed that he was incapable of participating in “any type of
substantial gainful activity.” Id. at 823 (emphasis added). However, Mr.
Hawkins also represented that, “had he been offered a job during the time of
receiving unemployment, he was willing to at least try to do the work.” Id. His
SSDI application remained on appeal at the time the district court issued the
ruling that we review.
Mr. Hawkins filed his complaint in the United States District Court for the
7
Western District of Oklahoma on January 25, 2012, 2 bringing claims under the
ADAAA and the Oklahoma Anti-Discrimination Act (“OADA”), and asserting a
Burk tort. 3 In March 2013, he sought partial summary judgment on his ADAAA
discrimination claim. Shortly thereafter, SHS filed its own cross-motion for
summary judgment on all claims. The district court resolved these motions in
SHS’s favor on May 28, 2013.
In its summary-judgment order, the district court rejected Mr. Hawkins’s
ADAAA discrimination claim, concluding that Mr. Hawkins was not a qualified
individual with a disability because he could not perform the essential function of
securing DOT certification for driving SHS’s vehicles. Moreover, “[e]ven
if . . . being DOT qualified was not an essential function,” the court continued,
Mr. Hawkins’s ADAAA discrimination claim “would nonetheless fail on the basis
of estoppel” due to his conflicting representations to the SSA. Id. at 1064. The
district court then explained that SHS was entitled to summary judgment on Mr.
Hawkins’s ADAAA retaliation claim because Mr. Hawkins had not addressed it in
2
Before filing his complaint, Mr. Hawkins properly filed charges of
discrimination with the Equal Employment Opportunity Commission (“EEOC”)
and the Oklahoma Human Rights Commission. The EEOC issued a notice of
right to sue on January 12, 2012.
3
A Burk tort “is said to arise . . . where an employee is discharged for
(1) refusing to violate an established and well-defined public policy or (2)
performing some act consistent with a clear and compelling public policy.”
Darrow v. Integris Health, Inc., 176 P.3d 1204, 1210 (Okla. 2008); see Burk v. K-
Mart Corp., 770 P.2d 24, 28 (Okla. 1989).
8
his briefing. Next, noting the coextensive character of ADAAA and OADA
actions, the court summarily rejected Mr. Hawkins’s OADA claim. For
substantially the same reasons, the court rejected Mr. Hawkins’s Burk tort claim
as well.
This timely appeal followed.
II
Before taking up Mr. Hawkins’s arguments for reversal, we set forth the
legal standards applicable to his federal disability-discrimination claim.
A
“We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court.” Crowe v. ADT Sec. Servs., Inc.,
649 F.3d 1189, 1194 (10th Cir. 2011); accord Monge v. RG Petro-Mach. (Grp.)
Co., 701 F.3d 598, 604 (10th Cir. 2012). In doing so, “[w]e view the facts, and
all reasonable inferences those facts support, in the light most favorable to the
nonmoving party.” Simmons v. Sykes Enters., Inc., 647 F.3d 943, 947 (10th Cir.
2011). Generally, summary judgment should be granted “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is material if
under the substantive law it is essential to the proper disposition of the claim.”
Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32
(10th Cir. 2001) (internal quotation marks omitted).
9
“Where appropriate, we may grant summary judgment ‘in favor of any
moving party we conclude is entitled to summary judgment on the record before
us.’” Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005)
(quoting First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308
F.3d 1114, 1120 (10th Cir. 2002)). As long as “the facts were fully developed at
[summary judgment] so that the court of appeals can determine that the
nonmoving party clearly was entitled to a judgment as a matter of law, an entry of
judgment for the nonmoving party may be proper” as well. Dickeson v.
Quarberg, 844 F.2d 1435, 1445 n.8 (10th Cir. 1988) (internal quotation marks
omitted).
B
Because Mr. Hawkins contends that SHS intentionally discriminated
against him by terminating him because he was disabled, this lawsuit presents a
claim of disparate-treatment discrimination. See Davidson v. Am. Online, Inc.,
337 F.3d 1179, 1189 (10th Cir. 2003). We have described the prima facie case
for such a claim as “not onerous.” Plotke v. White, 405 F.3d 1092, 1099 (10th
Cir. 2005) (internal quotation marks omitted). More specifically, Mr. Hawkins
must show that when his employment with SHS terminated, “(1) he was a
disabled person as defined by the [statute]; (2) he was qualified, with or without
reasonable accommodation, to perform the essential functions of his job; and (3)
he was fired because of his disability.” Carter v. Pathfinder Energy Servs., Inc.,
10
662 F.3d 1134, 1142 (10th Cir. 2011); accord Zwygart v. Bd. of Cnty. Comm’rs,
483 F.3d 1086, 1090 (10th Cir. 2007). It is also incumbent upon him at the
summary-judgment phase to “rais[e] a genuine issue of material fact on each
element of his prima facie case.” Davidson, 337 F.3d at 1189.
We generally review disparate-treatment claims under the framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Davidson, 337
F.3d at 1189; accord Hardy v. S.F. Phosphates Ltd., 185 F.3d 1076, 1079 (10th
Cir. 1999). However, we have explained that McDonnell Douglas’s “burden-
shifting framework may be unnecessary and inappropriate” where, as here, there
is direct evidence of discrimination. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323
n.3 (10th Cir. 1997); accord Davidson, 337 F.3d at 1189. 4 Under these
circumstances, the employer “will defend its decision on the ground that the
plaintiff is not otherwise qualified for the position, with or without reasonable
accommodation,” within the meaning of the ADAAA. Davidson, 337 F.3d at
4
“Direct evidence is evidence from which the trier of fact may
conclude, without inference, that the employment action was undertaken because
of the employee’s protected status [, i.e., disability].” Sanders v. Sw. Bell Tel.,
L.P., 544 F.3d 1101, 1105 (10th Cir. 2008). Here, the district court concluded
that there was direct evidence of discrimination “in light of the much broadened
definition of disability,” medical evidence submitted by Mr. Hawkins, and SHS’s
“admi[ssion] that [Mr. Hawkins’s] heart condition . . . played a prominent part in
its decision to place him on unpaid leave.” Aplt. App. at 1055 (internal quotation
marks omitted); see also Aplee. Br. at 11 (“stipulat[ing] that Hawkins’s medical
conditions prevent[ed] him from obtaining a DOT medical certification,” which
led to the adverse employment action).
11
1189.
At this point, the plaintiff’s status as a qualified individual with a disability
becomes “the determinative issue in the case.” Id. We then consider “two
criteria”—viz., (1) “whether [the plaintiff’s] impairment prevented [him] from
performing the essential functions of [his] job,” and (2) “[i]f so, . . . whether [he]
might have nevertheless been able to perform those functions if the [employer]
provided [him] a reasonable accommodation.” Robert v. Bd. of Cnty. Comm’rs,
691 F.3d 1211, 1216 (10th Cir. 2012). To be clear, however, we will not obligate
an employer to create a position out of wholecloth to accommodate the individual
in question. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174–75 (10th Cir.
1999) (en banc); accord Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1119
(10th Cir. 2004).
The ADAAA defines a “qualified individual” as a person “who, with or
without reasonable accommodation, can perform the essential functions of the
employment position that [he] holds or desires.” 42 U.S.C. § 12111(8). Under
the statute, “consideration shall be given to the employer’s judgment as to what
functions of a job are essential,” and an employer’s written job description “shall
be considered evidence of the essential functions of the job.” Id. (emphases
added). Further, the statute contemplates a broad array of “reasonable
accommodations” that may include, inter alia, “job restructuring, . . . modified
work schedules, reassignment to a vacant position, acquisition or modification of
12
equipment or devices, . . . or policies, . . . and other similar accommodations.”
Id. § 12111(9)(B). We have consequently said that “[u]nder the ADA[AA], [a
plaintiff] is a qualified individual as long as he can perform a job [offered by the
employer] that he desires.” Davidson, 337 F.3d at 1190 (internal quotation marks
omitted); cf. Midland Brake, 180 F.3d at 1161 (“Although a ‘qualified individual
with a disability’ has to be someone who can perform the essential functions of a
job, that inquiry is not limited to the employee’s existing job. Rather, the plain
language of the statute includes an employee who has the ability to do other jobs
within the company that such disabled employee ‘desires.’” (quoting 42 U.S.C.
§ 12111(8))).
The ADAAA’s implementing regulations, duly promulgated by the EEOC,
define “essential functions” as “the fundamental job duties of the employment
position the individual with a disability holds or desires,” but “not . . . the
marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). A particular job
duty “may be essential because the reason the position exists is to perform that
function,” id. § 1630.2(n)(2)(i), or “because of the limited number of employees
available among whom the performance of that job function can be distributed,”
id. § 1630.2(n)(2)(ii). As discussed infra, our disability-discrimination caselaw
explicitly incorporates the EEOC’s regulations, see Wells v. Shalala, 228 F.3d
131137, 1144 (10th Cir. 2000), 5 and counsels in favor of deference to an employer’s
judgment concerning essential functions, see Tate v. Farmland Indus., Inc., 268
F.3d 989, 993 (10th Cir. 2001) (noting that our “inquiry is not intended to second
guess the employer”); cf. Davidson, 337 F.3d at 1191 (explaining that some
deference is due because “[d]etermining whether a particular function is essential
is a factual inquiry”). This approach is consonant with Congress’s indication that
“[b]y including the phrase ‘qualified individual with a disability,’ the Committee
intends to reaffirm that this legislation does not undermine an employer’s ability
to choose and maintain qualified workers.” H.R. Rep. No. 101-485(II), at 55
(1990), reprinted in 1990 U.S.C.C.A.N. 303, 337.
III
Mr. Hawkins contends that the district court’s application of the foregoing
5
In Wells, we observed the D.C. Circuit’s “suggest[ion] that whether
an individual is ‘qualified’ for a job may, depending upon the circumstances,
present a question of fact or a question of law.” 228 F.3d at 1144 n.5. We did
not choose between those two approaches, though, for we found that the plaintiff
would lose as a matter of law in any event. See id. Then, in Mason, while stating
that “whether an employee can perform the essential functions of her job is a
mixed question of law and fact,” we still resolved the appeal as a matter of law.
357 F.3d at 1122; see id. (“Assuming a jury may determine the essential functions
of a job, we conclude [that this] case is not one in which the essential function
inquiry must go to the jury because no reasonable jury could find for [the
plaintiff] applying the [EEOC’s] factors.”). No additional inquiry on this score is
required here. This is so because, much like in Mason and Wells, the district
court assessed the facts presented and then, applying the EEOC factors, made the
legal determination that Mr. Hawkins could not perform the essential function of
driving DOT-regulated route trucks. We consequently need not resolve the fact-
law question to which the Wells court alluded.
14
principles was infected by multiple legal errors. He primarily disputes the court’s
determination that driving a DOT-regulated truck was an “essential function” of
SHS’s facility-supervisor position. In doing so, he submits that the district court
incorrectly allocated the relevant burdens between the parties and “fail[ed] to
distinguish between qualifications and functions.” Aplt. Opening Br. at 22. He
also challenges the court’s reliance upon estoppel as an alternative basis for
granting summary judgment, arguing that “estoppel can only be granted based on
sworn declarations.” Id. at 15.
In affirming the district court, we cabin our analysis to the court’s
conclusion that Mr. Hawkins failed to make a prima facie ADAAA case. The
district court’s well-reasoned analysis on this issue, standing alone, provides a
strong foundation for affirmance. In particular, we conclude that the district court
(1) correctly assigned the burdens between the parties and (2) did not conflate the
“qualifications” and “functions” terms. We need not—and thus do not—address
Mr. Hawkins’s estoppel theories. See Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1130 (10th Cir. 2011) (noting that “we may affirm on any basis supported
by the record”).
A
In urging reversal, Mr. Hawkins primarily argues that the district court
erroneously assigned to him—as opposed to SHS—the burden of proving that the
ability to drive DOT-regulated trucks was an essential function of the facility-
15
supervisor position. Our assessment of this argument, which we ultimately reject,
proceeds in three steps. First, we clarify the applicable terms that form the basis
of Mr. Hawkins’s contentions regarding the allocation of the burden. Second, we
explain the analytical roadmap provided by our caselaw and conclude that the
district court’s ruling reflects its principled adherence to this approach. And,
third, we explain why the authorities upon which Mr. Hawkins relies lend him no
succor.
1
At the outset, Mr. Hawkins insists that “it is the employer’s burden of proof
to establish that a function is ‘essential.’” Aplt. Opening Br. at 17 (capitalization
altered). He explains that the district court “did not expressly address the
allocation of proof on this issue”—viz., the question of whether a job function is
“essential”—but, rather, patently “placed the burden on Mr. Hawkins.” Id. at 20.
He also submits that, because “this Circuit has not directly addressed that
burden,” id. at 18, reversal is proper. Though we do not gainsay the vital role
that assigning burdens can play in the disposition of a lawsuit, see Schaffer ex rel.
Schaffer v. Weast, 546 U.S. 49, 55–56 (2005) (noting that certiorari was granted
to resolve a dispute concerning burden allocation), we are not situated to reverse
on the basis of Mr. Hawkins’s misallocated-burden theory.
Addressing Mr. Hawkins’s assertions in this regard requires some
unpacking of his chosen terminology. Mr. Hawkins’s use of the phrase “burden
16
of proof” is less than pellucid. To be sure, the Supreme Court has recognized that
“[t]he term ‘burden of proof’ is one of the ‘slipperiest member[s] of the family of
legal terms.’” Schaffer, 546 U.S. at 56 (second alteration in original) (quoting 2
J. Strong, McCormick on Evidence § 342, at 433 (5th ed. 1999)). The Court has
clarified that “[h]istorically, the term has encompassed two separate burdens: the
burden of persuasion (specifying which party loses if the evidence is balanced),
as well as the burden of production (specifying which party must come forward
with evidence at various stages in the litigation).” Microsoft Corp. v. i4i Ltd.
P’ship, --- U.S. ----, 131 S. Ct. 2238, 2245 n.4 (2011) (emphases added) (internal
quotation marks omitted). However, time and again, the Court has articulated the
“ordinary default rule” that “plaintiffs bear the risk of failing to prove their
claims.” Schaffer, 546 U.S. at 56; accord Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 177 (2009); Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 91–92
(2008).
This court has likewise alluded to the linguistic difficulty inherent in the
concept of “burden.” See, e.g., Esgar Corp. v. Comm’r, 744 F.3d 648, 654 (10th
Cir. 2014) (“In a situation in which both parties have satisfied their burden of
production by offering some evidence, then the party supported by the weight of
the evidence will prevail regardless of which party bore the burden of persuasion,
proof or preponderance.” (internal quotation marks omitted)); Riggs v. AirTran
Airways, Inc., 497 F.3d 1108, 1116 (10th Cir. 2007) (“In the employment
17
discrimination context, there is no need for a trial if one party has failed to
produce sufficient evidence to carry its burden of persuasion. It is therefore
appropriate for a court to reference the burdens of proof . . . .” (emphases
added)); Prince v. Leesona Corp., 720 F.2d 1166, 1173 & n.11 (10th Cir. 1983)
(finding no error in a jury instruction stating: “Burden of proof means burden of
persuasion. A party who has the burden of proof must persuade you that his
claim is more probably true than not true. In determining whether a party has met
this burden, you will consider all the evidence, whether produced by the plaintiff
or the defendant.”).
Collectively, we read our caselaw as making three salient points regarding
the burden issue. The first of these is that “burden of proof” is an umbrella term
“encompassing the burdens of both production and persuasion.” Qwest Corp. v.
FCC, 689 F.3d 1214, 1225–26 (10th Cir. 2012). 6 The second is that both parties
shoulder the burden of presenting evidence at some point in the litigation. See,
e.g., White v. York Int’l Corp., 45 F.3d 357, 361 (10th Cir. 1995) (noting that the
plaintiff “has the burden of coming forward with evidence concerning his
individual capabilities and suggestions for possible accommodations to rebut the
employer’s evidence” (quoting Prewitt v. U.S. Postal Serv., 662 F.2d 292, 308
6
A well-regarded legal dictionary embraces this understanding of the
term. See Black’s Law Dictionary 223 (9th ed. 2009) (“The burden of proof
includes both the burden of persuasion and the burden of production.” (italics
omitted)).
18
(5th Cir. Unit A Nov. 1981)) (internal quotation marks omitted)); see also Tate,
268 F.3d at 993 (noting that a plaintiff who “fails to establish” his prima facie
disability-discrimination case cannot prevail). The third point—and arguably the
one most applicable to this appeal—is that “the plaintiff at all times bears the
ultimate burden of persuading the trier of fact that he has been the victim of
illegal discrimination based on his disability.” White, 45 F.3d at 361 (emphasis
added).
Notwithstanding these bedrock principles, Mr. Hawkins challenges the
district court’s ultimate assignment of the burden of persuasion to him. In this
regard, he avers that “[s]ummary judgment is most often entered against the party
bearing the burden of proof [and] cases in which summary judgment is granted in
favor of the party bearing the burden of persuasion . . . will be rare.” Aplt.
Opening Br. at 19 (alterations and omission in original) (emphases omitted)
(quoting Frobose v. Am. Sav. & Loan Ass’n of Danville, 152 F.3d 602, 615 n.12
(7th Cir. 1998)) (internal quotation marks omitted). Mr. Hawkins can ultimately
be heard to argue that, even if both parties were obligated to adduce some
evidence at summary judgment regarding whether truck-driving is an essential
function of the facility-supervisor job, SHS should have borne the burden of
“first” persuading the factfinder that it was an essential function if the evidence
was in equipoise. See id. at 18 (questioning “who has the burden of first proving
whether a function is essential” (internal quotation marks omitted)); id. at 20
19
(“Because the employer clearly has superior knowledge as to the relevant factors
[of the job], . . . the employer has the burden of [persuasion].”).
2
Having clarified these critical terms, we turn to the district court’s
allocation of the burden in its ruling. We first discuss its obligation under our
precedent, which provides a principled course for courts to follow in cases such
as Mr. Hawkins’s. We then review the district court’s actual analytical trajectory
and conclude that it faithfully followed our circuit precedent. Notably, we find
that the court properly analyzed Mr. Hawkins’s disability-discrimination claim
using a rubric from which we are not situated to deviate.
a
Our ADAAA roadmap is clearly articulated in Wells v. Shalala, 228 F.3d at
1144. In that case, we explained that “a two-part analysis” guides our inquiry as
to whether a plaintiff is “qualified” for his former position. Id. We characterized
the first step of that analysis as “determin[ing] whether [the plaintiff] can perform
the essential functions of the job, i.e., functions that bear more than a marginal
relationship to the job at issue.” Id. We then expressly indicated that such a
determination involves consulting the regulatory factors provided by the EEOC,
to wit:
Evidence of whether a particular function is essential to a job
includes (but is not necessarily limited to) (1) the employer’s
judgment as to which functions are essential, (2) written job
20
descriptions prepared before advertising or interviewing
applicants for the job, (3) the consequences of not requiring the
incumbent to perform the function, and (4) the current work
experience of incumbents in similar jobs.
Id. (citing 29 C.F.R. § 1630.2(n)(3)). As for the second part, we stated that “if we
conclude that Plaintiff is not able to perform the essential functions of the job, we
must determine whether any reasonable accommodation by [the employer] would
enable him to perform those functions.” Id.Wells is particularly useful to our growing body of disability jurisprudence
because it indicates our intent to incorporate the EEOC regulations in
decisionmaking. Further, as relevant here, it demonstrates that implementing
those regulations necessarily places considerable weight on an employer’s
judgment concerning a particular job’s “essential” functions. We did precisely
that in Wells when we deemed the plaintiff’s single, self-serving affidavit
woefully insufficient to overcome the employer’s “overwhelming
evidence”—including a written job description and affidavits from three company
supervisors—that travel was an “essential” function of the disputed position. Id.at 1144–45.
In Mason v. Avaya Communications, we strengthened the foundation
provided by Wells, emphasizing once more that the factors listed at 29 C.F.R.
§ 1630.2 are part and parcel of our essential-function inquiry. See 357 F.3d at
1119 (referencing the EEOC’s prescribed regulations). And we unmistakably
21
signaled that the Wells rubric contemplates deference to an employer’s judgment.
See id. (stating that we are “require[d]” to “consider the employer’s judgment as
to what functions of a job are essential” (internal quotation marks omitted)). We
described the prototypical analysis in that regard as follows:
The employer describes the job and functions required to perform
that job. We will not second guess the employer’s judgment
when its description is job-related, uniformly enforced, and
consistent with business necessity. In short, the essential
function inquiry is not intended to second guess the employer or
to require the employer to lower company standards.
Id. (citations omitted) (internal quotation marks omitted).
Under that approach in Mason, we cited with approval the employer’s
“present[ation of] evidence to the district court demonstrating four of the
evidentiary factors set forth by the EEOC regulations,” id. at 1120—evidence
which was then appropriately weighed against the plaintiff’s offering. Observing
that the plaintiff had “simply point[ed] out that [the employer] did not present any
evidence [on an issue she found significant],” id. at 1121, we agreed with the
district court that the plaintiff had lost the evidentiary tug-of-war. In so doing,
we expressly found that the plaintiff had “not persuaded” us to accept her view
that the disputed functions were non-essential in the context of the statute. Id. at
1121–22 (emphasis added). Mason therefore serves as a natural extension of
Wells by incorporating the factors referenced by the EEOC, by requiring the
employer to produce some evidence, and by affording respect to the employer’s
22
judgment. 7
Our subsequent caselaw, in recapitulating this rubric, lends the important
consideration that, in the “necessary first step [of] identify[ing] the ‘essential
functions’ of the position[,] . . . the employer’s judgment is not conclusive
evidence.” EEOC v. Picture People, Inc., 684 F.3d 981, 997 (10th Cir. 2012).
Indeed, despite our usual deference to an employer’s adoption of qualifications
based on its judgment and experience, we have firmly held that “an employer may
not turn every condition of employment which it elects to adopt into a job
function, let alone an essential job function, merely by including it in a job
description.” Id. (quoting Davidson, 337 F.3d at 1191) (internal quotation marks
omitted). But it bears repeating that, in the end, “[w]e weigh heavily the
employer’s judgment regarding whether a job function is essential.” Hennagir v.
Utah Dep’t of Corr., 587 F.3d 1255, 1262 (10th Cir. 2009).
7
Our explication of Mason demonstrates why Mr. Hawkins’s reliance
upon it is misplaced. Mr. Hawkins emphasizes the fact that the Mason employer
presented evidence concerning the EEOC factors—but he reasons from that fact
that this “inferentially supports that the employer possessed the burden of proof.”
Aplt. Opening Br. at 18. Though we acknowledge that Mason does not expressly
“answer the initial question of who has the burden of first proving whether a
function is ‘essential,’” id. (emphasis added), Mason unquestionably incorporates
the Wells rubric, and we must abide by our unavoidable rule that “the plaintiff at
all times bears the ultimate burden of persuading the trier of fact that he has been
the victim of illegal discrimination based on his disability,” White, 45 F.3d at 361(emphasis added), which we followed in Mason.
23
b
Next, we assess the district court’s adherence to the decisional path paved
by our caselaw. We conclude that the court thoroughly reviewed the facts and
then made the legal determination that Mr. Hawkins failed to carry his burden of
persuasion on whether DOT certification was an essential function of his desired
position. That legal determination then justified the court’s rejection of Mr.
Hawkins’s claim that he was a qualified individual with a disability.
Consequently, we affirm.
Courts require an employer to come forward with evidence concerning
whether a job requirement is an essential function. See, e.g., Mason, 357 F.3d at
1120 (considering the employer’s evidence with respect to various factors
enumerated in the EEOC regulations); White, 45 F.3d at 362 (analyzing evidence
offered by the employer to determine the essential functions even before the
employee demonstrated hypothetical accommodations); accord Bates v. United
Parcel Serv., Inc., 511 F.3d 974, 991 (9th Cir. 2007) (en banc) (“[A]n employer
who disputes the plaintiff’s claim that he can perform the essential functions must
put forth evidence establishing those functions.” (internal quotation marks
omitted)); Benson v. Nw. Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995)
(“Because Northwest[, the employer,] disputes Benson’s evidence that he can
perform the essential functions of the mechanic’s job, it must put on some
evidence of those essential functions.” (emphasis added)). A job function may be
24
essential—i.e., a fundamental duty of the relevant position, see 29 C.F.R.
§ 1630.2.(n)(1)—because performing it is the reason for the position, or because
few employees are available to perform it, see id. § 1630.2(n)(2). 8
Bearing the foregoing in mind, the district court here specified the
regulatory factors that would shape its assessment of Mr. Hawkins’s claim—and,
by extension, its ruling on whether DOT certification was an “essential function”
of the facility-supervisor job with SHS:
[t]he employer’s judgment as to which functions are essential;
[w]ritten job descriptions prepared before advertising or
interviewing applicants for the job; [t]he amount of time spent on
the job performing the function; [t]he consequences of not
requiring the incumbent to perform the function, and [t]he current
work experience of incumbents in similar jobs.
Aplt. App. at 1056–57 (alterations in original) (internal quotation marks omitted).
The district court was entitled to narrow the scope of its inquiry in such a
reasonable fashion, given the EEOC’s guidance that 29 C.F.R. “Part 1630 lists
various types of evidence . . . . [T]he list is not exhaustive.” 29 C.F.R. § 1630app. (commenting on § 1630.2(n)).
With regard to the first factor—SHS’s judgment—the district court
8
Mr. Hawkins contends that the second of these grounds is “[t]he only
possible basis . . . for finding driving a commercial vehicle to be essential.” Aplt.
Opening Br. at 28. However, he offers no legal substantiation for the proposition
that only 29 C.F.R. § 1630.2(n)(2)(ii) (“limited number of employees available”
to perform the function) should inform our decision, and we will not make that
argument on his behalf. See United States v. Yelloweagle, 643 F.3d 1275, 1284
(10th Cir. 2011).
25
considered it “clear that [SHS] considered being DOT qualified to operate a
[company] route truck an essential job function.” Aplt. App. at 1059. The court
focused on SHS’s judgment as follows:
[SHS] asserts that its facility supervisors must be authorized to
operate DOT regulated vehicles so they could pick up and deliver
vehicles for service and repair and facilitate the fueling and the
loading and unloading of goods from the vehicles. While a
facility supervisor might not have to operate a commercial
vehicle on a daily basis, [SHS] claims it was essential that [Mr.
Hawkins] be able, as supervisor, to assume the task of his
supervised employees, when needed to prevent the disruption of
its business.
Id. It further considered SHS’s choice to require many physical abilities of its
facility supervisors, see id. at 1058, and SHS’s proffered “evidence of different
situations where[,]” in SHS’s judgment, “the facility supervisor would need to
drive” to avoid disrupting business, id. at 1059.
Our precedent, which requires courts to “weigh heavily the employer’s
judgment regarding whether a job function is essential,” Hennagir, 587 F.3d at
1262 (emphasis added), indicates that the district court’s deference to SHS’s
articulation of the facility-supervisor’s role was justified. There is no doubt in
this circuit that “[i]t is [an] employer’s province to define the job and the
functions required to perform it.” Anderson v. Coors Brewing Co., 181 F.3d
1171, 1177 (10th Cir. 1999). The district court’s “inquiry is not intended to
second guess the employer or to require [it] to lower company standards.”
Davidson, 337 F.3d at 1191. We are satisfied that the district court heeded this
26
rule and properly refrained from “act[ing] as a super personnel department that
second guesse[d] [SHS’s] business judgments” regarding Mr. Hawkins’s former
position. Dalpiaz v. Carbon Cnty., 760 F.3d 1126, 1133 (10th Cir. 2014) (internal
quotation marks omitted). 9
The second pertinent factor in the district court’s calculus was SHS’s
official written description corresponding to the facility-supervisor position,
which contemplated fleet management, DOT certification and associated
credentialing, and an “excellent driving record.” Aplt. App. at 594 (capitalization
altered). The district court found that this factor overwhelmingly favored SHS,
and thus rejected Mr. Hawkins’s contention that the job description did not
“facially” require truck-driving. See id. at 1057 (internal quotation marks
omitted). In so doing, the court found that being DOT-certified (and, by
extension, being able to drive SHS’s trucks) was “consistent with the specified
9
Mr. Hawkins purports to challenge the district court’s assessment of
this factor by stating that because “no preexisting memos or directives” apprised
facility supervisors of the DOT-certification requirement, this “failure to
document” should have “created a credibility issue for the jury as to whether this
was really the employer’s judgment or whether it was a pretext to screen out
disabled employees.” Aplt. Opening Br. at 28–29. Yet, Mr. Hawkins cites to no
legal authorities that suggest—much less command—that we should treat these or
similar circumstances as engendering a jury issue regarding pretext. Nor does
Mr. Hawkins offer cogent argument or anything else to validate this nebulous
assertion. In view of the undeveloped nature of this argument in his briefing, we
decline to pursue the matter further. See, e.g., Bronson v. Swensen, 500 F.3d
1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments
that are . . . inadequately presented[ ] in an appellant’s opening brief.”).
27
duties, when . . . considered in the context of the type of business [of SHS] and
how it operated.” Id. at 1057–58 (emphasis added). Put otherwise, the court
found the job description’s failure to invoke the word “driving” unremarkable,
particularly in light of the fact that the document implicitly “identified [driving]
as one of the job qualifications.” Id. at 1059.
We find no fault with the district court’s context-based assessment of
SHS’s written job description. Our caselaw readily supports the court’s
prerogative to view the description through a broad lens, considering all relevant
circumstances of the position. See, e.g., Davidson, 337 F.3d at 1191 (noting that
the court undertakes a multi-factor assessment that “includ[es] those functions
contained in a written job description” (emphasis added)); cf. Frazier v. Simmons,
254 F.3d 1247, 1258 (10th Cir. 2001) (“Our case law recognizes an employer may
require an employee to perform a multitude of tasks in a wide range of
environments.” (internal quotation marks omitted)). Notably, in Robert, we
rejected the argument of the plaintiff, an offender supervisor, that
fieldwork—mentioned in some portions of the job description, but not the
“essential functions” section—was non-essential. See 691 F.3d at 1216–17.
Assessing the full complement of duties assigned to that position, we reasoned:
“[S]upervising offenders in-person was clearly an essential function . . . . So too
was conducting visits to their homes and workplaces.” Id. at 1216. We were
further persuaded by the fact that the plaintiff’s failure to perform that function
28
“caused strain in her small office.” Id.
Similarly, in Mason, when “the only evidence [the plaintiff] proffered in
support of her argument that she could perform the essential functions of her job
from home, other than her own self-serving testimony, was the absence of
attendance, supervision, and teamwork from the service coordinator job
description,” we concluded that context and “commonsense suggest[ed]”
otherwise. 357 F.3d at 1121–22. We willingly accepted there that a job
description need not be Byzantine or prolix in order to be deemed
sufficient—and, in fact, intimated that certain essential functions could be “a
given” when considering the job in context. Id. at 1122. All of the foregoing
principles apply with equal force here.
Furthermore, we are not persuaded by Mr. Hawkins’s suggestion that
driving a commercial vehicle is uniquely non-essential to the general position of
supervisor. He contends that “supervising” and “coordinating”—both listed in
the job description—do not necessarily require a facility supervisor to assume the
duties of a subordinate. But, as the district court observed, SHS presented
evidence demonstrating that such flexibility was critical to its business model.
That is, SHS could not always anticipate when a driver would be needed in a
pinch; its route and driver changes occurred frequently, and the DOT’s hours-of-
service rules often impacted whether materials handlers could bring trucks back
for re-stocking. Mr. Hawkins has at no point meaningfully refuted that evidence.
29
We therefore have little trouble concluding that “coordinat[ing] the product
receiving and material handling activities necessary to fulfill the sales activities at
[his] assigned depot,” Aplt. App. at 594, required some modicum of ability of a
facility supervisor, like Mr. Hawkins, to operate the trucks in his fleet.
The third factor considered in the essential-function inquiry is the amount
of time spent performing the disputed function. See 29 C.F.R. § 1630.2(n)(3)(iii).
Here, while remarking that “a facility supervisor might not have to operate a
commercial vehicle on a daily basis,” Aplt. App. at 1059, the district court
nonetheless found it relevant that Mr. Hawkins had previously been called upon
to drive fleet trucks, see id. at 1061 (“If plaintiff had never had to drive a truck,
the court might view the case differently.”). On appeal, Mr. Hawkins rebuts this
conclusion by attempting to fault the court’s “minimiz[ation] [of] the two and a
half years from 2007 to 2010 when [he] did no driving at all.” Aplt. Opening Br.
at 33. We reject this argument not only based on our view that the district court
thoroughly considered that time period, but also because it did so while adhering
to our precedent.
More specifically, the district court’s assessment of time finds support in
our Hennagir decision. At issue in Hennagir was whether completion of a
correctional institution’s Peace Officer Standards and Training (“POST”) program
was an essential function for facility medical positions. See 587 F.3d at 1262.
The plaintiff insisted that POST certification was non-essential because in eight
30
years of corrections medical work, she had never relied upon the program’s
teachings. See id. at 1263. While we recognized that the plaintiff’s lack of
utilization of the program went “to a number of properly weighed factors
[including] the amount of time spent on the job performing the function,” id.(emphasis added), we gave considerable weight to another counterbalancing
factor—“the consequences of not requiring an employee to perform the function,”
id. Indeed, we considered it paramount in Hennagir that the plaintiff had “daily
exposure” to inmates and the consequences of failing to adhere to the POST
training in dealing with inmate attacks were “severe.” Id. (internal quotation
marks omitted). We carefully considered scenarios (both hypothetical and real)
advanced by the employer in support of this factor and concluded that “common
sense” made the requirement of proper training “reasonable.” Id.We reach the same conclusion here. Regardless of the two-and-a-half years
in which Mr. Hawkins did not have to drive a truck, the daily exposure to
company vehicles and product shipments created a strong, constant potential that
he might need to possess certification to drive a DOT-regulated truck. As the
district court explicitly noted, “DOT hours of service rules,” re-stocking
difficulties SHS sometimes encountered, various mechanics’ truck-driving
policies, and the “need to find someone else who could fill in at the last minute,”
given the “small number of employees” at the Alva depot, all increased the
likelihood that he might have to drive a truck. Aplt. App. at 1059–61. And,
31
although the court also considered Mr. Hawkins’s evidence that another employee
could drive route trucks, it was entitled to be critical of the fact that Mr. Hawkins
“offer[ed] no evidence that the extra person was on site and available to drive
when needed.” Id. at 1060 n.9 (italics omitted); see Milton v. Scrivner, Inc., 53
F.3d 1118, 1125 (10th Cir. 1995) (“While we must resolve doubts in favor of the
parties opposing summary judgment, plaintiffs’ conclusory allegations are
insufficient to defeat [an] adequately supported motion.”). Given the court’s
determination that “[Mr. Hawkins’s] job was to keep the trucks loaded and on the
road,” Aplt. App. at 1060, there was nothing erroneous about its associated ruling
that eliminating the truck-certification requirement might disrupt SHS’s business.
Finally, though Mr. Hawkins argues that SHS “presented no proof” of two
additional factors—the work experiences of past incumbents and of persons in
similar jobs—he does so only with reference to his personal view that “in some
depots the facility manager has to drive and in others he or she did not.” Aplt.
Opening Br. at 35–36 (internal quotation marks omitted). He has not
meaningfully disputed the evidence that every facility supervisor was required to
be DOT-certified, and he has clearly conceded that some SHS depots required
facility supervisors to drive. See id. at 36. We therefore reject this conclusory
assertion for what it is: another misguided attempt to unload his burden of
persuasion onto SHS, despite our insistence in White that he shoulders this burden
at all times. See 45 F.3d at 361.
32
In sum, reviewing the district court’s assessment of the EEOC factors, we
have no trouble accepting its ultimate conclusion regarding DOT certification.
The district court carefully and properly reached a legal determination based on
the evidence presented. It observed numerous undisputed facts, notably: (1) that
Mr. Hawkins “did drive [SHS] trucks regularly for a period of time in 2007”; (2)
that “all [SHS] facility supervisors were required to be DOT qualified”; (3) that
SHS’s written description for the facility-supervisor job required DOT
certification; (4) that, aside from route salespersons, only one other Alva-based
employee besides Mr. Hawkins was authorized to drive a company truck; and (5)
that failing to require DOT certification could seriously disrupt SHS’s business.
Aplt. App. at 1061. The district court explicitly relied upon these undisputed
facts—most of which were adduced by SHS—to find that, as a matter of law,
DOT certification was an essential function of the facility-supervisor position. In
this way, the district court’s analysis was patently consistent with our settled
precedent.
Finally, we note that, to the extent that the court’s calculus involved a tacit
shifting of some burden onto Mr. Hawkins, we find such an allocation
unremarkable. That is, given the employee’s responsibility to persuade the
factfinder that he is qualified to perform the essential functions of a position, it is
not surprising that a court would reason that the employee bears that same burden
regarding the subsidiary question of what those essential functions actually are.
33
3
We now address Mr. Hawkins’s view that several of our sister circuits
“have directly addressed this issue and agree” that, in cases such as his, the
employer bears the burden of persuasion concerning whether a job function is
essential because of the employer’s “superior knowledge as to the relevant
factors.” Aplt. Opening Br. at 20. In doing so, we recognize Mr. Hawkins’s
efforts to identify at least some extra-circuit caselaw to support his gloss on the
allocation of the burden. But the decisions to which he briefly alludes do not
serve him well for at least two reasons. First, these authorities arguably do not
speak to the issue Mr. Hawkins raises—viz., whether the employer must persuade,
rather than simply produce evidence pertaining to the essential functions of a
position. They are more fairly read to reinforce our own treatment of the issue,
especially our insistence that the burden of persuasion at all times falls to the
plaintiff. Moreover, even assuming arguendo that the cases were more germane
to Mr. Hawkins’s circumstances, we would nonetheless afford them little
persuasive weight because the scope of their applicability is far more limited than
Mr. Hawkins suggests. Nonetheless, it bears repeating that we are bound to
follow our own precedent and its express incorporation of the EEOC regulations.
We find it clear as an initial matter that many of Mr. Hawkins’s authorities
do not specifically implicate his misallocated-burden argument. In fact, they
bolster the distinction we articulated above: that while both parties face a burden
34
of production, the plaintiff always bears the ultimate burden of persuasion. See,
e.g., Bates, 511 F.3d at 991 (“[W]e agree with the Eighth Circuit’s approach that
an employer who disputes the plaintiff’s claim that he can perform the essential
functions must put forth evidence establishing those functions.” (emphasis added)
(internal quotation marks omitted)); EEOC v. Wal-Mart Stores, Inc., 477 F.3d
561, 569 (8th Cir. 2007) (“[O]nce the plaintiff makes a facial showing that
reasonable accommodation is possible, the burden of production shifts to the
employer to show that it is unable to accommodate the employee. If the employer
demonstrates that the plaintiff is unable to perform the essential functions of the
job even with reasonable accommodation, the plaintiff must then rebut that
showing with evidence of his individual capabilities. Thus, the plaintiff’s burden
merges with his ultimate burden of persuading the trier of fact that he has
suffered unlawful discrimination.” (alteration in original) (emphases added)
(citations omitted) (internal quotation marks omitted)); Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1184 (6th Cir. 1996) (explaining that, although the employer
must produce some evidence that a challenged job requirement is job-related, “the
disabled individual retains the burden of proving that he or she is qualified to
perform the essential functions of the job”), abrogated on other grounds by Lewis
v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012); Benson, 62 F.3d at
1112 (“The employee at all times retains the burden of persuading the trier of
fact that he has been the victim of illegal discrimination due to his disability.”
35
(emphasis added)).
Mr. Hawkins also clearly misapprehends the import of some of his chosen
authorities. Notably, he is mistaken that the First Circuit “also places the burden
of proof on the employer and . . . has cited [our] holding in White . . . as
supporting that conclusion.” Aplt. Opening Br. at 18 (citation omitted). He is
correct only with regard to the fact that in Ward v. Massachusetts Health
Research Institute, Inc., 209 F.3d 29 (1st Cir. 2000), the First Circuit relied upon
White for the proposition that an employer is required to marshal some essential-
function evidence. See Ward, 209 F.3d at 35. In the end, the Ward court spoke
not to the employer’s deficient persuasive powers, but to the employer’s failure to
adduce any evidence that the function at issue (job attendance) was essential. See
id. (“What is noticeably absent from the record is any evidence that the nature of
[the plaintiff’s] position requires that he be present during specific hours of the
day.” (emphasis added)). The employer’s failure to augment the record in some
appreciable manner prompted the court to find a genuine disputed issue of
material fact precluding summary judgment for the employer. Likewise, in its
subsequent reasonable-accommodation assessment, the court observed that the
employer “need[ed] to produce at least some modicum of evidence” to support its
position. Id. at 37. We consequently find it patent that this case is not the
36
panacea Mr. Hawkins imagines it to be. 10
Ultimately, even if we suspected that Mr. Hawkins’s proffered authorities
were somewhat persuasive in our efforts to resolve his appeal—which we do
not—we would not supplant our own principled decisional pathway with those of
our sister circuits. We reprise our view that the district court meticulously and
faithfully followed the roadmap dictated by Tenth Circuit precedent. Pursuant to
that well-settled approach, it consulted the factors specified by the EEOC
regulations—under which the employer is obliged to come forward with a
modicum of evidence. Guided by that regulatory framework, the court examined
the evidence and made a legal determination. Insofar as our caselaw tacitly
alludes to some burden-shifting, at no point does it relieve Mr. Hawkins of the
burden of persuading the court that he could perform the essential functions of the
facility-supervisor position, with or without accommodation. We consequently
reject Mr. Hawkins’s main argument for reversal and conclude that the district
court correctly handled the relevant legal burdens in this case.
10
The same is true of Stone v. City of Mount Vernon, 118 F.3d 92 (2d
Cir. 1997), to which Mr. Hawkins implicitly refers by including it in a block
quotation: specifically, the employer completely failed to come forward with any
evidence regarding the challenged functions. See 118 F.3d at 99–100 (“While
plainly the employer’s judgment as to which functions are essential is highly
relevant[,] . . . we have seen in the record no evidence [of the employer’s
contentions]. Plainly, therefore, it cannot be said that the reason the FAB and
FPB positions exist is to perform the fire-suppression function.” (emphasis added)
(citation omitted) (internal quotation marks omitted)).
37
B
Mr. Hawkins also argues that the district court impermissibly conflated
critical concepts in its calculus. In his view, when the court found that driving a
company truck was an essential function of the facility-supervisor position, it
confused job qualifications with essential functions—viz., it “failed to recognize
that uniform performance of the function is the standard—not uniform
enforcement of the qualification.” Aplt. Opening Br. at 22 (emphasis omitted).
Though we do not gainsay that “qualifications” and “functions” are in some sense
distinguishable terms, we find thoroughly unpersuasive Mr. Hawkins’s
contentions that the district court muddled the two in reaching its decision.
Rather, we are satisfied that the court properly assessed whether the ability to
drive a DOT-regulated truck was an essential function of the facility-supervisor
role—and that it did so in accordance with well-settled circuit precedent.
SHS’s position of mandating DOT certification for facility supervisors is
unremarkable; that is, it “was not insisting upon a job qualification merely of its
own devising.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 570 (1999). Its
requirement stems directly from the federal motor-safety regulations, which
preclude a person from “driv[ing] a commercial motor vehicle unless he/she is
qualified to drive,” 49 C.F.R. § 391.11(a), by, inter alia, being “medically
certified as physically qualified to do so,” id. § 391.41(a)(1)(i). “The validity of
these regulations is unchallenged, they have the force of law, and they contain no
38
qualifying language about individualized determinations.” Albertson’s, 527 U.S.
at 570. Thus, as a matter of law, if an essential function of a position is the
ability to operate a commercial vehicle, then being DOT-certified is an automatic,
binding, and utterly unavoidable requirement. See id. (finding an employer that
terminated a commercial driver had an “unconditional obligation” and
“consequent right” to follow DOT regulations addressing certain physical
qualifications). Accordingly, the district court here did not err in its focus on the
ability to operate a commercial truck.
More broadly, we consider it well-settled that, as long as its specifications
are “job-related, uniformly-enforced, and consistent with business necessity, the
employer has the right to establish what a job is and what is required to perform
it.” Tate, 268 F.3d at 993; accord Kellogg v. Energy Safety Servs. Inc., 544 F.3d
1121, 1127 (10th Cir. 2008). We have approved a wide variety of such
specifications, be they listed as skills, qualifications, or certifications. For
example, in Tate, we approved an employer’s choice to mandate DOT
certification for “operat[ing] a commercial motor vehicle (CMV) hauling propane
and other refined fuel products,” 268 F.3d at 990, and found that the employee
was not a qualified individual with a disability when his seizure disorder
precluded certification, see id. at 995–96. Moreover, as noted above, in
Hennagir, we found that the employer could permissibly require training and
certification in the facility’s safety protocol. See 587 F.3d at 1262–64. Indeed, in
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Picture People, we concluded that verbal-communication skills were essential to
the “performer position” in a photography studio. See 684 F.3d at 986–87.
As applied here, SHS adduced evidence that it uniformly required facility
supervisors to be able to operate its DOT-regulated route trucks—a skill that, by
law, mandates DOT certification. See Aplt. App. at 594. This evidence satisfied
the district court that the ability-to-drive requirement was job-related and tailored
to SHS’s business needs. When the district court concluded that this was an
essential function of the facility-supervisor position, it followed as a matter of
law that DOT certification was necessary as well. In any event, it is pellucid that
SHS can require this certification of its facility supervisors. See 29 C.F.R.
§ 1630.15(e) (providing that an employer may defend against an unlawful-
discrimination claim by asserting that a “challenged action is required or
necessitated by another Federal law or regulation”). We repeat our conclusion
that the district court’s principled analysis was correct, and we consequently
reject as off-point and meritless Mr. Hawkins’s conflated-analysis argument.
C
Having set forth in detail the reasons why the district court properly heeded
circuit precedent, we need not (and thus do not) reach the merits of whether
estoppel theories should have precluded Mr. Hawkins from bringing his ADAAA
claim. We are satisfied to affirm the district court’s grant of summary judgment
in favor of SHS without addressing the alternative estoppel basis for its ruling.
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IV
For the reasons stated herein, we AFFIRM the district court’s grant of
summary judgment to SHS.
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