Equal Employment Opportunity Commission v. Womble Carlyle Sandridge & Rice, LLP

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1958
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff – Appellant,
v.
WOMBLE CARLYLE SANDRIDGE & RICE, LLP,
Defendant – Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cv-00046-CCE-LPA)
Argued: May 13, 2015 Decided: June 26, 2015
Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Susan L.P. Starr, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant. Jill S. Stricklin,
CONSTANGY, BROOKS & SMITH, LLP, Winston-Salem, North Carolina,
for Appellee. ON BRIEF: P. David Lopez, General Counsel,
Carolyn L. Wheeler, Acting Associate General Counsel, Lorraine
C. Davis, Assistant General Counsel, Office of General Counsel,
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C.,
for Appellant. W.R. Loftis, Jr., CONSTANGY, BROOKS & SMITH,
LLP, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The Equal Employment Opportunity Commission (“EEOC”)
appeals the district court’s grant of summary judgment in favor
of Womble Carlyle Sandridge & Rice, LLP (“Womble Carlyle”) on
the EEOC’s claim under Title I of the Americans with
Disabilities Act (“ADA”). For the following reasons, we affirm.
I.
A.
Womble Carlyle is a full service, business law firm
comprised of over 500 lawyers in 14 offices. The Winston-Salem,
North Carolina, location is composed of a main office, at One
West Fourth Street, and two satellite buildings, Liberty Plaza
and Winston Tower.
Among other staff, the firm employs about 15 Support
Services Assistants (“SSAs”), who have the following duties:
to provide basic, entry-level operating functions,
such as operating high-volume copy and scanning
machines and performing associated tasks, shipping and
receiving products and supplies, handling incoming and
outgoing mail and other correspondence, handling basic
maintenance and repair of copiers, making offsite
pick-ups and deliveries, responding to and
coordinating service calls, as well as binding
documents, conducting quality control checks on work
done in the Support Services Center, performing basic
housekeeping/hospitality functions, working in the
internal message center, and performing other duties
as assigned.
2
J.A. 34–35. Many of these functions require heavy lifting, and
the performance of any of the listed functions may be required
during any given shift. As one SSA explained in her deposition,
“We basically do whatever they need us to do.” J.A. 350.
During a typical shift, many SSAs are present, which allows
those employees to share and divide tasks based on availability.
However, SSAs are also required to work shifts alone, either on
Saturdays based on a rotating schedule, or at the satellite
buildings.
Charlesetta Jennings, the complainant, began work at the
firm as an SSA in April 2000. She worked primarily in the copy
room, where she copied, scanned, and printed documents. But she
also performed other tasks, such as delivering mail to each
floor (“floor runs”) of the One West Fourth Street location,
assisting with express-delivery shipments, filling in for
receptionists during their breaks and vacations, and handling
the range of tasks that arose during her shifts on Saturdays or
at Liberty Plaza and Winston Tower.
In July 2008, Jennings was diagnosed with breast cancer.
She had surgery the next month and, after taking a short leave
of absence, returned to work in September 2008. She took
intermittent leave while undergoing chemotherapy treatments
until January 2009.
3
In November 2009, Jennings noticed tenderness and swelling
in her left arm. Doctors diagnosed Jennings with lymphedema, a
condition caused by breast cancer treatment and which affects
the circulatory and immune systems. It is triggered by heavy
lifting. Following the diagnosis, although her work sometimes
required lifting heavy items such as packages or boxes of paper,
Jennings devised alternate methods for accomplishing those tasks
and was able to avoid further injury for about seven months. 1
Unfortunately, in June 2010, Jennings suffered an injury at
work due to unavoidable heavy lifting. She was working alone at
Liberty Plaza and, in order to prepare a shipment, “had to tape
up and move about 14 boxes ranging in weight from 32 to 38
pounds each in addition to moving some paper boxes weighing 50
pounds each from one location to another.” J.A. 76. Because of
the location of the scale used to weigh the boxes, Jennings was
not able to use any of the alternate methods she had used at
other times to avoid the heavy lifting. This undertaking caused
1 For example, in order to move multiple boxes of paper
using a hand cart, instead of lifting each box and placing it on
the cart, Jennings would slide the first box onto the cart, then
wheel the cart to the next box, which was stacked high enough
for her to slide it onto the cart as well. And to prepare heavy
shipments, instead of filling a box and then lifting it onto the
scale, Jennings would put the empty box on the scale, add the
contents to be shipped a bit at a time, slide it off of the
scale, tape it up, slide it onto a chair, and then roll the
chair to where the package needed to be left for shipment.
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pain and swelling in her left arm. Jennings missed the next two
days of work. She returned on the third day after the injury,
but had to leave early because, while working alone at Winston
Tower, she had to move some FedEx boxes weighing between 10 and
30 pounds, and she “could feel . . . the soreness in [her]
shoulder.” J.A. 228.
After the incidents, Jennings submitted a doctor’s note to
Womble Carlyle that stated that, due to the risk of lymphedema,
she could not lift more than 10 pounds. After learning of the
lifting restriction, Womble Carlyle’s Office Manager and Support
Services Manager conferred to determine what SSA functions
Jennings could and could not perform. They determined that she
was unable to perform the following functions:
• working alone at Liberty Plaza or Winston Tower
• working alone on Saturdays
• copying and scanning documents without assistance
• managing supplies
• setting up conference rooms
• loading or unloading trucks
• delivering or picking up packages offsite
• delivering to, or picking up mail or packages from,
the post office or offices within the Womble Carlyle
buildings
• delivering and receiving packages on an express
basis
• assisting with office moves for attorneys or other
personnel
• performing hospitality and housekeeping tasks
• managing files
5
J.A. 39–43. By contrast, the managers determined that Jennings,
lifting restriction notwithstanding, could perform the following
functions:
• copying and scanning documents with assistance
• delivering confidential light-weight envelopes
within the firm
• performing quality checks (e.g., making sure copies
matched originals)
• filling in for receptionists on breaks or out of the
office
J.A. 45–46. By Jennings’s account, she was also able to copy
and scan documents without assistance and prepare heavy
shipments using her alternate work methods.
Womble Carlyle accommodated Jennings’s 10-pound lifting
restriction for about six months by assigning her light-duty
work. For example, between August 2010 and November 2010, she
was able to spend approximately one-third of her working hours
on a large scanning project. Even though the boxes containing
the documents to be scanned weighed between 30 and 50 pounds,
she was able to avoid lifting over 10 pounds by using modified
work methods. See J.A. 273–74. In addition to working on the
scanning project during this time, Jennings also filled in for
receptionists who were out of the office; delivered small items
within the building; performed quality checks, book binding,
print jobs, and Bates stamping; sorted mail; sent faxes; and
assisted with light-weight express-delivery packages and
workspace clean-up. Tasks she had performed prior to her
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injury, but which she did not do during this time, included
making floor runs, assisting with express-delivery packages
weighing more than 10 pounds, and filling in at the satellite
buildings.
Jennings’s supervisors testified that after the scanning
project was complete, she was often idle at work because of her
limitations. One supervisor estimated that she worked no more
than 20% of each day. Jennings, by contrast, testified that the
reduction in work after the scanning project was “[n]o more than
normal,” and was instead the result of the unpredictable daily
workload. J.A. 278–79.
On February 1, 2011, Jennings provided Womble Carlyle with
an updated doctor’s note stating that she could lift up to 20
pounds. Both Jennings’s and Womble Carlyle’s understanding was
that this restriction was permanent. Womble Carlyle’s Office
Manager then reassessed Jennings’s capabilities, concluding that
the list of tasks she could and could not perform with a 10-
pound limit remained the same even with the 20-pound limit. The
Office Manager also considered whether Womble Carlyle could
transfer Jennings to another job position. Although she
concluded that Jennings might be qualified to work as a
receptionist or message center operator, those positions were
already filled.
7
On February 9, 2011, the Office Manager placed Jennings on
a medical leave of absence. When it ran out in August 2011,
Womble Carlyle terminated her employment.
B.
Jennings filed charges of discrimination with the EEOC,
alleging that Womble Carlyle violated Title I of the ADA. The
EEOC brought suit based on those charges in the United States
District Court for the Middle District of North Carolina.
Womble Carlyle moved for summary judgment, which the district
court granted on the ground that, at the time she was fired,
Jennings could not perform the essential functions of her job
with or without reasonable accommodation, and no reasonable jury
could find otherwise.
First, the district court concluded that lifting more than
20 pounds was an essential function of the job. In so deciding,
the court relied on the SSA job description, the judgment of
Womble Carlyle’s managers, the experience of SSAs as described
through deposition testimony, and the firm’s proffered
consequences of removing all heavy-lifting tasks from an SSA’s
duties--namely that other SSAs would have to work harder and
longer, and the overall flexibility of the team would be
diminished. Citing Dropinski v. Douglas County, 298 F.3d 704
(8th Cir. 2002), which held that an employee’s “specific
personal experience is of no consequence in the essential
8
functions equation,” id. at 709, the court focused on the SSA
position generally, even though there were some heavy-lifting
tasks that Jennings had never been required to do. Indeed, the
court noted that “it is undisputed that all SSAs, including Ms.
Jennings, were routinely required to perform some tasks
involving heavy lifting and that even if certain SSAs had
primary responsibility for these tasks, others were required to
fill in as needed.” EEOC v. Womble Carlyle Sandridge & Rice,
LLP, No. 1:13–CV–46, 2014 WL 2916851, at *6 (M.D.N.C. June 26,
2014).
Second, the district court concluded that Jennings could
not lift more than 20 pounds even with reasonable accommodation.
Even though she could get around some heavy-lifting tasks by
using modified work methods, there were too many tasks she could
not perform with modifications. She could not:
work at Liberty Plaza or Winston Tower, work the
Saturday shift, deliver mail to the floors, deliver
boxes of copy paper, pick up or deliver copy jobs
weighing more than twenty pounds, lift or carry
packages weighing over twenty pounds that needed to be
shipped or mailed, move heavy furniture, or complete
other tasks that involved or could involve lifting
more than twenty pounds.
Id. at *7. The court concluded that it would not be reasonable
to excuse Jennings from all those tasks “because doing so would
force Womble Carlyle to create a modified light-duty position,
which the ADA does not require.” Id. (citing Shin v. Univ. of
9
Md. Med. Sys. Corp., 369 F. App’x 472, 482 (4th Cir. 2010)).
The court also concluded that it would not be reasonable to
require Womble Carlyle to assign one or more SSAs to help
Jennings with all heavy-lifting tasks, as that “would in effect
reallocate essential functions, which the ADA does not require.”
Id. (citing Shin, 369 F. App’x at 482). The EEOC timely
appealed.
II.
“We review the grant of summary judgment de novo, using the
same standards as applied by the district court.” Hartsell v.
Duplex Prods., Inc., 123 F.3d 766, 771 (4th Cir. 1997). Summary
judgment is appropriate only when there is no genuine issue as
to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). In making this
determination, we “must review the record ‘taken as a
whole’ . . . [and] draw all reasonable inferences in favor of
the nonmoving party.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
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III.
On appeal, the EEOC argues that the district court erred in
granting summary judgment for Womble Carlyle because Jennings
could perform the essential functions of the SSA job even
without reasonable accommodation. Alternatively, it argues that
requiring other SSAs to help with tasks that involve lifting
over 20 pounds is a reasonable accommodation that would have
enabled Jennings to perform the essential functions of the job.
We disagree. In the discussion that follows, we begin with a
brief discussion of the governing legal framework, and then
consider (1) whether Jennings could perform the essential
functions of the job; and (2) if she could not, whether the EEOC
identified a reasonable accommodation that would have enabled
her to do so.
A.
Under Title I of the ADA, an employer cannot “discriminate
against a qualified individual on the basis of disability.” 42
U.S.C. § 12112(a). A “qualified individual” is “an individual
who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires.” Id. § 12111(8). “[E]ssential
functions of the job[] [are] functions that bear more than a
marginal relationship to the job.” Tyndall v. Nat’l Educ.
Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994) (quoting Chandler
11
v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993)); accord 29
C.F.R. § 1630.2(n)(1).
The plaintiff “bears the burden of demonstrating that [the
complainant] could perform the essential functions of her job.”
Tyndall, 31 F.3d at 213. It satisfies that burden by showing
that she could perform the essential functions “with or without
reasonable accommodation.” 42 U.S.C. § 12111(8). The term
“reasonable accommodation” means “[m]odifications or adjustments
to the work environment, or to the manner or circumstances under
which the position held or desired is customarily performed,
that enable an individual with a disability . . . to perform the
essential functions of that position.” 29 C.F.R.
§ 1630.2(o)(1)(ii). While “reallocating or redistributing
nonessential, marginal job functions” is a potential reasonable
accommodation, 29 C.F.R. pt. 1630 app. § 1630.2(o), an
accommodation is not reasonable under the ADA if it
“reallocate[s] essential functions,” id.; accord Shin, 369 F.
App’x at 482; see also Peters v. City of Mauston, 311 F.3d 835,
845 (7th Cir. 2002) (holding that the employee’s request that
someone else do the heavy lifting for him was “unreasonable
because it [would] require[] another person to perform an
essential function of [the] job”).
12
B.
Turning to the merits of EEOC’s appeal, we hold that
summary judgment was appropriate because the record in this case
shows beyond dispute that (1) Jennings could not perform an
essential function of the job; and (2) the EEOC has identified
no reasonable accommodation that would satisfy its burden to
show the contrary. 2 We discuss each of these conclusions in
turn.
1.
We first conclude that, because the SSA position is
multifaceted--requiring the ability to perform a wide variety of
tasks during any one shift--and many of those tasks could at any
time require lifting over 20 pounds, the ability to lift that
amount is an essential function of the job. In determining
2 We reject the EEOC’s argument that Womble Carlyle violated
the ADA by failing to engage in an interactive process to
identify a reasonable accommodation for Jennings. “The duty to
engage in an interactive process . . . is generally triggered
when an employee communicates to his employer his disability and
his desire for an accommodation for that disability,” Wilson v.
Dollar Gen. Corp., 717 F.3d 337, 346–47 (4th Cir. 2013), and
there is no evidence in the record indicating that Jennings ever
requested an accommodation. In fact, she testified that she did
not tell anyone that she needed an accommodation before her
disability leave. J.A. 286. And even if Womble Carlyle’s duty
to engage in the interactive process was triggered, “an employer
who fails to engage in the interactive process will not be held
liable if the [plaintiff] cannot identify a reasonable
accommodation that would have been possible.” Wilson, 717 F.3d
at 347. The EEOC has identified no such accommodation.
13
whether a responsibility is an essential function of a job, we
look to the general components of the job rather than to the
employee’s particular experience. That an employee may
typically be assigned to only certain tasks of a multifaceted
job “does not necessarily mean that those tasks to which she was
not assigned are not essential.” Phelps v. Optima Health, Inc.,
251 F.3d 21, 26 (1st Cir. 2001); see also Anderson v. Coors
Brewing Co., 181 F.3d 1171, 1175–76 (10th Cir. 1999) (holding
that the district court properly considered the essential
functions of the position for which the plaintiff was hired, as
opposed to those of the narrower position to which she was
assigned). Here, it is undisputed that the SSA position
requires the ability to perform a wide variety of tasks. As
discussed above, the SSA duties are numerous and varied, see
J.A. 34–35, and as one SSA testified, “We basically do whatever
they need us to do,” J.A. 350. Even though Jennings worked
primarily in the copy room, she could have, at any time, been
called upon to move heavy furniture or carry heavy packages. As
the district court summarized, “it is undisputed that all SSAs,
including Ms. Jennings, were routinely required to perform some
tasks involving heavy lifting and that even if certain SSAs had
primary responsibility for these tasks, others were required to
fill in as needed.” EEOC, 2014 WL 2916851, at *6.
14
In addition, it is undisputed that many SSA tasks require
lifting over 20 pounds. Both Jennings’s own testimony and that
of other SSAs confirm this. For example, Jennings testified
that she was, at times, assigned to help with express-delivery
packages that weighed over 20 pounds, J.A. 174; do floor runs,
which required lifting heavy mail buckets, J.A. 177–78; and work
alone at Liberty Plaza, which involved lifting more than 20
pounds, J.A. 198–99. Indeed, it was lifting boxes weighing over
20 pounds at Liberty Plaza that caused Jennings’s injury in June
2010. J.A. 76. Other SSAs also testified to being called upon
to lift heavy express-delivery packages, J.A. 342-43, carry 50-
pound boxes, J.A. 363–64, and help with office moves, J.A. 366,
among other heavy-lifting tasks.
Because so many facets of the SSA job may at any time
require lifting over 20 pounds, the ability to do so “bear[s]
more than a marginal relationship to the job,” and is thus an
essential function of the position. Tyndall, 31 F.3d at 213.
And because Jennings was unable to lift that amount, she was
unable to perform an essential function of the job.
The EEOC’s arguments to the contrary are unpersuasive.
First, the EEOC argues that, despite Jennings’s inability to
lift more than 20 pounds, she could nevertheless perform the
essential functions of the SSA job, as evidenced by her strong
performance reviews. In support of this contention, the EEOC
15
states: “It is uncontested that Jennings performed her job at
Womble Carlyle for years, between 2008 and 2011, working at both
satellite buildings and on Saturdays, and received only good
performance reviews with no official complaints and no
reprimands and that she did this without lifting more than
twenty pounds.” Appellant’s Br. at 19. The EEOC’s argument is
refuted by both the record and Jennings’s own experience. Her
testimony reflects that she did lift more than 20 pounds prior
to her injury, and her alternate work methods did not prevent
her from having to lift more than 20 pounds and injuring
herself.
Relatedly, the EEOC argues that Jennings’s work-around
methods enabled her to perform enough functions of the job such
that the ability to lift over 20 pounds was non-essential. To
be sure, Jennings was able to devise ways to do some tasks, but
she remained unable to do many more. She could not work alone
at Liberty Plaza or Winston Tower or on Saturdays, assist with
office moves, deliver or pick up packages from offsite or among
any of the three Womble Carlyle buildings, set up conference
rooms, or any of a number of tasks. Thus, even though
Jennings’s work-around methods enabled her to perform a small
subset of the job’s responsibilities, the ability to lift over
20 pounds was inextricably tied to the vast majority of them.
Accordingly, Jennings’s own experience demonstrates that the
16
ability to lift that amount was an essential function of the SSA
job--which she was unable to perform. Cf. Miller v. Ill. Dep’t
of Corr., 107 F.3d 483, 484-85 (7th Cir. 1997) (deeming a
correctional officer unable to perform the essential functions
of the job where her legal blindness enabled her to perform only
a few administrative tasks, but prevented her from performing
any inmate control or safety functions).
2.
Because we conclude that Jennings could not perform an
essential function of the job, she was not a qualified
individual unless the EEOC has carried its burden to show that a
reasonable accommodation would have enabled her to do so. We
agree with the district court that it has not.
Excusing Jennings from all heavy lifting would not have
been a reasonable accommodation, and the EEOC does not argue to
the contrary. Moreover, requiring assistance for all tasks that
involve lifting more than 20 pounds would reallocate essential
functions, which the ADA does not require. See 29 C.F.R. pt.
1630 app. § 1630.2(o). And it is undisputed that assistance was
not always available, such as when Jennings was working alone.
IV.
We are not unsympathetic to Jennings’s situation. Indeed,
we admire her pluck and innovative attempts to prevent injury.
17
Womble Carlyle, too, appears to have been impressed with
Jennings, describing her as “a very hard worker,” J.A. 470, with
“a positive attitude,” J.A. 510. However, the unfortunate truth
is that, because of Jennings’s disability, she is unable to
perform an essential function of the SSA job without a serious
risk of further injury. For that reason, the judgment of the
district court is
AFFIRMED.
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