Willis v. Conopco, Inc.

United States Court of Appeals,

Eleventh Circuit.

No. 96-8395.

Lynda L. WILLIS, Plaintiff-Appellant,

v.

CONOPCO, INC., a.k.a. Lever Brothers Company, a.k.a. Unilever,

Defendant-Appellee.

March 25, 1997.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 4:94-cv-200-HLM), Harold L. Murphy,

District Judge.

Before EDMONDSON and BLACK, Circuit Judges, and HILL, Senior

Circuit Judge.

PER CURIAM:

Plaintiff appeals the district court's grant of summary

judgment on her claim under the Americans with Disabilities Act

("ADA"). Plaintiff argues that the district court erred in

requiring her to produce evidence sufficient to establish a triable

issue on the existence of a reasonable accommodation for her

disability. We hold that an ADA plaintiff (1) as part of her

burden of production, must identify an accommodation that would

allow her to perform her job duties and (2) as a part of her burden

of proving her case, must establish that such an accommodation is

reasonable. As Plaintiff has failed to produce evidence of such an

accommodation, we affirm the district court's judgment.

I.

Plaintiff Lynda Willis was employed by Defendant Lever

Brothers in its Carterville plant. Plaintiff initially worked in

the packing area where laundry detergents are packaged for

distribution and sale. In March 1992, Plaintiff reported

experiencing a persistent cough and skin rash. The plant physician

prescribed treatment, and Plaintiff was placed on restricted duty

to limit her exposure to the detergent. When blood tests revealed

that Plaintiff was sensitive to certain enzymes contained in the

detergent, the employer temporarily reassigned Plaintiff to an

administrative position in the plant's safety office. Upon

confirming Plaintiff's sensitivity, the employer monitored the air

quality of its warehouse and spare part areas to determine where

Plaintiff could safely work.

After determining that the spare parts area had reduced levels

of enzymes which it considered to be safe, the employer reassigned

Plaintiff to the spare parts area. In addition to reassigning

Plaintiff, the employer (1) directed her to wear a mask when

crossing the packing area floor (which had relatively higher levels

of enzymes), (2) gave her a pass to park her car near a door which

allowed her to avoid the packing area floor, (3) excused her from

performing housekeeping audits in areas with greater levels of

enzymes, (4) excused her from meetings in higher enzyme areas and

(5) continued to monitor—as it had since Plaintiff first reported

a persistent cough and skin rash—Plaintiff's pulmonary functions.

In October 1993, Plaintiff began a medical leave of absence

for foot surgery—a condition unrelated to this lawsuit. In January

1994, Plaintiff's foot surgeon released her to return to work

without restriction. The next day she notified her employer that

she had seen another physician, Dr. Edelson, 1 who advised her not

to return to work due to the possibility of enzyme exposure.

Edelson provided to Defendant a letter saying as follows:

[Plaintiff] has been exposed to various chemicals in the

work environment at [Defendant' plant].... She definitely has

immune system abnormalities and I think, she should stop

working at this [ ] plant. There is nowhere within that

building that she would be safe.... I reiterate: She should

not be working in that building.

At this point, Plaintiff refused to return to work in the spare

parts area and requested her employer either (1) to reassign her to

a "safe work area" or (2) to enclose and to air condition the spare

parts area. Defendant then arranged (and paid for) Plaintiff to be

examined by a pulmonologist, Dr. Duffell.

In February 1994, Duffell sent Defendant a report in which he

concluded that Plaintiff "was fully capable of continuing to work

in the plant." Shortly thereafter, Defendant sent Plaintiff a

letter directing her to return to work on her next scheduled shift

or to be deemed to have abandoned her job and to have her

employment terminated. In response, Plaintiff had Edelson send a

letter, via facsimile, to Defendant indicating "she is not to come

into contact with any toxic chemical substances.... My suggestion

is that she find some legal way to attain disability because of the

current circumstances." When Plaintiff did not return to work,

Defendant terminated her employment.

Plaintiff brought the present suit alleging a cause of action

1

Dr. Edelson practices "environmental medicine." As the

district court noted, quoting Edelson's deposition,

"[e]nvironmental medicine is not considered mainstream medicine

and is not generally accepted as scientifically valid by

"mainstream' medical community."

under the ADA. After completing discovery, the parties filed

competing summary judgment motions. The district court granted

Defendant's motion for summary judgment and denied Plaintiff's

motion for partial summary judgment as moot. The district court

assumed that Plaintiff was an otherwise qualified individual with

a disability and then held that no triable issue of material fact

existed on whether Defendant could have made reasonable

accommodations for Plaintiff's disability.

II.

We review the grant or denial of summary judgment de novo,

applying the same standard employed by the district court. Parks

v. City of Warner Robins, GA, 43 F.3d 609, 612-613 (11th Cir.1995).

An "accommodation" is "reasonable"—and, therefore, required under

the ADA—only if it enables the employee to perform the essential

functions of her job. 29 C.F.R. § 1630.2(o)(ii). Reassignment to

another position is a required accommodation only if there is a

vacant position available for which the employee is otherwise

qualified. 42 U.S.C. § 12111(9)(B).

According to Plaintiff, her employer failed even to attempt to

make reasonable accommodations for her condition: she says

Defendant neither transferred her nor attempted to make the spare

parts area safe for her. Plaintiff also says that the district

court erred by placing the burden on her to request a specific

accommodation. Plaintiff says the ADA merely requires an employee

to request accommodation—as an abstract concept—after which the

employer becomes obligated to enter into a "flexible, interactive

process" involving both the employer and the employee. Plaintiff

points us to Beck v. University of Wisconsin Bd. of Regents, 75

F.3d 1130, 1135 (7th Cir.1996) ("[T]he regulations envision an

interactive process that requires participation by both parties:

"[T]he employer must make a reasonable effort to determine the

appropriate accommodation. The appropriate reasonable

accommodation is best determined through a reasonable process that

involves both the employer and the [employee] with a disability.'

") (quoting 29 C.F.R. § 1630.2(o)(3) (1995)).

Though the issue of which party has the burden of proposing

a concrete accommodation and establishing that the particular

accommodation is reasonable is one of first impression for us,

other circuits have ruled on the issue. We also note that our

recent opinion in Moses v. American Nonwovens, Inc., 97 F.3d 446,

448 (11th Cir.1996) (per curiam ), though not directly on point,

provides us with significant guidance in deciding the question.

The D.C. Circuit, interpreting almost identical language in

regulations promulgated under the Rehabilitation Act, has

established the following approach to the reasonable accommodation

issue:

These cases deal with objective claims that may be tested

through the application of traditional burdens of proof....

[A] plaintiff must establish that (a) he is handicapped but,

(b) with reasonable accommodation (which he must describe), he

is able to perform the "essential functions" of the position

he holds or seeks. See 29 C.F.R. § 1613.702(f); see also id.

§ 1613.704(a), (b). As in the usual case, it would then be up

to the employing agency to refute that evidence. The burden,

however, remains with the plaintiff to prove his case by a

preponderance of evidence.

Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.Cir.1993). We agree that

this statement of an ADA plaintiff's burdens of production and

persuasion (which tests plaintiff's claim "through the application

of traditional burdens of proof") is the appropriate one.

Even assuming an employer has an affirmative obligation—absent

an employee's suggestion for a specific accommodation—to engage in

the interactive process Plaintiff advocates, we have held that,

where a plaintiff cannot demonstrate "reasonable accommodation,"

the employer's lack of investigation into reasonable accommodation

is unimportant. Moses v. American Nonwovens, Inc., 97 F.3d 446,

448 (11th Cir.1996). In Moses, we rejected an employee's claim

(under the ADA) that his employer not only failed to make

reasonable accommodations for his disability, but also

failed—before terminating the employee's employment—even to

consider the available options for accommodating the disability.

Id. ("[Plaintiff's] primary arguments are that [the employer]

failed to investigate his condition and failed to consider possible

accommodations.") We acknowledged that we were troubled by

evidence that the employer had failed to investigate accommodating

the plaintiff. Id. ("We are more troubled by the evidence that

[the employer] failed to investigate possible accommodations. No

language in the ADA mandates a pretermination investigation, but

the EEOC advises that "the employer must determine whether a

reasonable accommodation would ... eliminate' the direct threat.

29 C.F.R. § 1630.2(r), 1630.9, Interp. Guidance.") We determined,

however, that the ADA provides no cause of action for "failure to

investigate" possible accommodations, and that:

We are persuaded that [the employer's] failure to

investigate did not relieve [plaintiff] of his burden of

producing probative evidence that reasonable accommodations

were available. A contrary holding would mean that an

employee has an ADA cause even though there was no possible

way for the employer to accommodate the employee's disability.

Stated differently: An employer would be liable for not

investigating even though an investigation would have been

fruitless. We are confident that although the ADA does not

mandate a pretermination investigation, the possibility of an

ADA lawsuit will, as a matter of practice, compel most

employers to undertake such an investigation before

terminating a disabled employee.

Id.

To the extent that the Seventh Circuit's Beck opinion can be

interpreted (as Plaintiff says) to require an "interactive process"

such that an employer can be held liable merely for failing to

engage in the process itself (regardless of whether a "reasonable

accommodation" could in reality have been made for the employee),

Moses holds otherwise. And, to the extent that Beck can be

interpreted as requiring that the "interactive process" envisioned

in the regulations carry over to a plaintiff's burden of production

in court (thus, relieving the plaintiff-employee of her "burden of

producing evidence that reasonable accommodations were available"),

Moses holds otherwise.

We also do not believe an approach as punitive in nature as

Plaintiff's view of an "interactive process" requirement comports

with the basic goal of the ADA, which we understand to be remedial

in nature—ensuring that those with disabilities can fully

participate in all aspects of society, including the workplace.

See e.g. 42 U.S.C. § 12101(a)(8) ("[T]he Nation's proper goals

regarding individuals with disabilities are to assure equality of

opportunity, full participation, independent living, and economic

self-sufficiency for such individuals;....") The ADA, as far as we

are aware, is not intended to punish employers for behaving

callously if, in fact, no accommodation for the employee's

disability could reasonably have been made.

We know that some courts have required the plaintiff (as part

of her initial burden of production) to introduce evidence of the

existence of an accommodation, but have combined the questions of

(a) whether the accommodation is reasonable and (b) whether it will

impose an undue hardship on the employer into one question. Then

the burden of proof (or the "burden of nonpersuasion") on the one

question has been put on the defendant-employer. See e.g.

Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d

Cir.1995) ("[I]n practice meeting the burden of nonpersuasion on

the reasonableness of the accommodation and demonstrating that the

accommodation imposes an undue hardship amount to the same thing.")

(interpreting regulations promulgated pursuant to the

Rehabilitation Act). Such an approach confuses an element of the

plaintiff's case (reasonable accommodation) with an affirmative

defense (undue burden) and effectively relieves the plaintiff of

her obligation to prove her case. See 42 U.S.C. § 12112(b) ("As

used in subsection (a) of this section, the term "discriminate'

includes—... (5)(A) not making reasonable accommodations to the

known physical or mental limitations of an otherwise qualified

individual with a disability who is an applicant or employee,

unless such covered entity can demonstrate that the accommodation

would impose an undue hardship on the operation of the business of

such covered entity; ...")

We doubt that, in providing for a private right of action to

enforce the rights created by the ADA, Congress intended such a

departure from the traditional rules and norms of litigation. This

doubt is especially strong where an established body of civil

rights jurisprudence (which employed conventional burdens of

production and proof for plaintiffs and defendants) existed, and

Congress expressly relied on existing civil right laws in creating

the pertinent private right of action. See generally 42 U.S.C. §

12117(a) ("The powers, remedies, and procedures set forth in

sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this

title shall be the powers, remedies, and procedures this subchapter

provides to the Commission, to the Attorney General, or to any

person alleging discrimination on the basis of disability in

violation of any provision of this chapter, or regulations

promulgated under section 12116 of this title, concerning

employment."). See also St. Mary's Honor Center v. Hicks, 509 U.S.

502, 506-07, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993) ("It is

important to note, however, that although the McDonnell-Douglas

presumption shifts the burden of production to the defendant,

"[t]he ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against remains at all times

with the plaintiff.' ") (quoting Texas Dept. of Community Affairs

v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207

(1981)).

That the evidence probative of the issue of whether an

accommodation for the employee is reasonable will often be similar

(or identical) to the evidence probative of the issue of whether a

resulting hardship for the employer is undue, does not change the

fact that establishing that a reasonable accommodation exists is a

part of an ADA plaintiff's case, whereas undue hardship is an

affirmative defense to be pled and proven by an ADA defendant.2

Turning to the evidence before the district court in this

case, Plaintiff presented no competent evidence that any

alternative position existed (vacant or otherwise)—regardless of

whether she was qualified for it. In fact, Plaintiff's physician

indicated that "[t]here is nowhere within that building that she

would be safe." The only evidence Plaintiff offered that a vacant

position existed at all was a hearsay statement, contained in her

affidavit, that she ran into a "temporary service girl" who

informed her that "she was hired into the vacant office position

[Plaintiff] had [temporarily] had [in the plant's safety office]

after [Defendant] had terminated me." The district court struck

the statement as inadmissible hearsay, and Plaintiff does not

appeal this evidentiary ruling. The district court also pointed

out that Plaintiff's own testimony contradicted her claim that such

a position would have accommodated her condition. Also, the

affidavit does not show that the vacancy (if there was a vacancy)

existed when Plaintiff was let go.

As for Plaintiff's claim that it would have been a reasonable

accommodation for Defendant to enclose and to air-condition the

2

These two issues are not exactly the same: the question of

whether an accommodation is reasonable (though it must be

determined within a given set of specific facts) is more of a

"generalized" inquiry than the question of whether an

accommodation causes a "hardship" on the particular employer that

is undue. See Barth, 2 F.3d at 1187 ("As a general matter, a

reasonable accommodation is one employing a method of

accommodation that is reasonable in the run of cases, whereas the

undue hardship inquiry focuses on the hardships imposed by the

plaintiff's preferred accommodation in the context of the

particular agency's operations.") (interpreting Rehabilitation

Act regulations) (emphasis in original) (citations omitted).

spare parts area, she testified, in her deposition, that she "still

[would] have been exposed to powder" and that no way existed that

she "could work in the spares department and not be exposed to

enzymes." She submitted no evidence to contradict her testimony

(or that of her doctor) on this point.

Plaintiff says that, as an employee, she was in no position to

know what specific accommodations were available or how reasonable

they were. Whatever may be said of her "burden" as an employee in

the day-to-day workplace seeking an accommodation for her

condition, Plaintiff—as a litigant bringing an ADA action—has

failed to produce evidence (after the completion of discovery) of

the existence of any "accommodation" at all, "reasonable" or

otherwise.

Plaintiff also says that she was subjected to a

discriminatory termination in that she was discharged in

retaliation for requesting an accommodation or for seeking to file

for worker's compensation benefits. The district court held that

Defendant had articulated a legitimate, nonretaliatory reason for

the discharge—Plaintiff refused to report to work—and that her

failure to present evidence that Defendant's proffered reason was

pretextual requires summary judgment. See e.g. Jackson v. Veterans

Admin., 22 F.3d 277, 279 (11th Cir.1994) ("one who does not come to

work cannot perform any of his job functions, essential or

otherwise") (quotation marks and citation omitted).

Plaintiff seeks to distinguish Jackson by pointing out that

the disability involved there resulted in the employee being absent

from the office in an unpredictable way. Plaintiff also says that

Defendant's failure in this case to provide her with worker's

compensation forms (despite three requests to do so) and the fact

that she sought such benefits shortly before being terminated,

raises a triable issue of fact. Assuming for the sake of argument

that Defendant's failure to provide such forms does raise a triable

issue in the first instance (that is, assuming that Plaintiff has

met her burden of coming forward with evidence to raise an

inference of retaliation), Plaintiff fails to offer evidence to

raise an inference that Defendant's offered explanation for the

termination (Plaintiff refused to come to work) was mere pretext.

When an employee refuses to show up for work after being

informed that her failure to do so will result in the loss of her

job, the employer has presented a valid, nonretaliatory reason for

terminating that employee. Id. at 278 ("The [employer] does not

dispute that [the employee] performs these tasks satisfactorily

when he is at work. ... [The employee's] presence on a routine

basis is also an essential element of the job that he has failed to

satisfy.") (emphasis in original).

AFFIRMED.