Opinion
Cause No. 3:03-cv-041-RLY-WGH.
November 24, 2004
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Introduction
This matter is before the court on Defendant's Motion for Summary Judgment filed March 8, 2004. Plaintiff filed a Response on May 12, 2004, and defendant filed its Reply Brief on May 27, 2004.
II. Background
Plaintiff was hired by defendant on April 1, 1984. (Amended Complaint at 2). Plaintiff was first diagnosed by her neurologist, Donna Lorenzo-Bueltel, M.D., ("Dr. Lorenzo-Bueltel") with multiple sclerosis in June of 1999. (Defendant's Brief in Support of Motion for Summary Judgment at 2). As part of plaintiff's ongoing symptoms that continue throughout periods of remission and exacerbation, she can suffer from fatigue, persistent weakness, visual disturbances or blurry vision, numbness, tingling, and bladder difficulties. ( Id.).
In April of 2000, plaintiff was promoted to the position of Loan Operations Manager and remained in defendant's Evansville branch. ( Id. at 3). Her salary was increased to $26,500. ( Id.). As part of her job duties as Loan Operations Manager, plaintiff supervised 10 to 12 people. (Deposition of Terri Hasty ("Hasty Dep.") at 24). By this time, defendant was aware of plaintiff's multiple sclerosis. ( Id. at 21). In plaintiff's new position, she was permitted to work a four-day work week. ( Id.). Plaintiff explained that she was allowed to take some of her work home and that defendant knew she was doing some work at home. ( Id. at 23). Plaintiff indicated that her multiple sclerosis was causing her to be fatigued and the addition of having to drive to Evansville added to her fatigue. ( Id. at 22). At some point, Dr. Lorenzo-Bueltel suggested that plaintiff move to a less stressful position. (Defendant's Brief in Support of Motion for Summary Judgment at 3). Plaintiff met with her supervisor, Cindy Hayes ("Hayes"), and discussed the possibility of moving to a bank branch closer to her home. ( Id.). However, plaintiff indicated that she did not want to give up her supervisory position that she had worked to earn. ( Id.). Despite her concerns, in the summer of 2001, plaintiff learned that there would be an opening for the Construction/Modification Loan Specialist position and she inquired about whether or not that position could be moved to defendant's Grandview, Indiana branch. ( Id. at 4). The Construction/Modification Loan Specialist position would involve supervising no employees and would, therefore, involve a cut in pay. ( Id. at 5). At the time, plaintiff was making $28,300 in the Loan Operations Manager position. ( Id.).
On August 29, 2001, defendant announced that plaintiff had accepted the Construction/Modification Loan Specialist position and that plaintiff would be moving to the Grandview branch. ( Id. at 4). Despite the move to the Grandview branch being announced on August 29, plaintiff remained at the Evansville branch for over three more months. ( Id.). Defendant continued to permit plaintiff to work a flexible schedule, taking off on Fridays, attending doctor's appointments during the workday, and leaving work early. ( Id.). On September 24, 2001, defendant hired Bill Kussman ("Kussman") as Senior Vice President of Mortgage Banking. ( Id. at 6). According to defendant, Kussman made the decision that all mortgage processing operations would be consolidated in the Evansville office. ( Id.). This decision was announced to a project management group sometime in December. (Memo from Lisa Pfeifer to Cindy Hayes, June 15, 2002, at 3).
Finally, on December 3, 2001, plaintiff's Construction/Modification Loan Specialist position was moved to the Grandview branch. (Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment at 3). This accommodation also included flexible hours. (Amended Complaint at 3). Defendant made the announcement on January 8, 2002, that it was closing its Vincennes mortgage processing center. (Hasty Dep. at 61). Despite being moved to the Grandview office only five weeks earlier, plaintiff received a call on January 9, 2002, from her supervisor, Hayes, and was informed that her position would also be moved back to Evansville. ( Id. at 62). Also, on January 10, 2002, defendant lowered plaintiff's salary to $25,000. (Defendant's Brief in Support of Motion for Summary Judgment at 5).
Plaintiff met with Hayes, on January 11, 2002. (Hasty Dep. at 66). The two spoke about other jobs within defendant's organization that plaintiff could perform, specifically teller, relationship banker, and store manager. ( Id. at 67). With regard to the teller position, plaintiff suggested that she could not stay on her feet for eight hours each day and could not work an eight hour shift each day. ( Id.). When asked if she ever requested any accommodations to be able to perform the teller position, plaintiff explained that Hayes never asked her any question about accommodations. ( Id. at 68). As for the relationship banker position, plaintiff suggested that it was a sales position and that she really was not a salesperson. ( Id.). Finally in discussing the position of branch manager, plaintiff suggested that she "could do the bank manager's position." ( Id. at 68). However, plaintiff did express concern about whether or not she could work a normal work week. (Hasty Dep. at 66).
In a letter dated January 29, 2002, plaintiff wrote defendant explaining that she was unable to drive to Evansville because of her multiple sclerosis. (Defendant's Brief in Support of Motion for Summary Judgment at 10). In support of plaintiff's claim, Dr. Lorenzo-Bueltel explained that plaintiff could not make the drive to the Evansville branch. ( Id. at 11-12). Dr. Lorenzo-Bueltel indicated that plaintiff could only drive 20 miles because of her multiple sclerosis. (Deposition of Dr. Lorenzo-Bueltel ("Lorenzo-Bueltel Dep.") at 35).
Plaintiff again met with Hayes on March 1, 2002, to discuss defendant's decision to move plaintiff's position back to the Evansville office. (Hasty Dep. at 82). Plaintiff asked if the decision was final and Hayes confirmed that it was. ( Id.). Plaintiff went on to discuss the closing of the Grandview office in June and asked if there was any chance that defendant could move her position to the Rockport branch. ( Id. at 83). Again Hayes explained that defendant's decision was to move the position to Evansville and that this decision was final. However, plaintiff was offered the chance to keep the Construction/Modification Loan Specialist position if she could travel to Evansville two or three days each week. (Defendant's Brief in Support of Motion for Summary Judgment at 14). Plaintiff declined this offer because she could not drive to Evansville. ( Id. at 15).
Defendant sent plaintiff a letter on March 8, 2002, indicating that, in order to remain in the Construction/Modification Loan Specialist position, plaintiff would have to maintain a forty hour work week, Monday through Friday in the Evansville branch. (Amended Complaint at 3). Plaintiff's last day of work was March 19, 2002. (Hasty Dep. at 149). Defendant's Grandview branch closed on June 7, 2002. (Defendant's Reply in Support of Motion for Summary Judgment at 2).
III. Summary Judgment Standard
Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The motion should be granted so long as no rational fact finder could return a verdict in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, a court's ruling on a motion for summary judgment is akin to that of a directed verdict, as the question essentially for the court in both is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. When ruling on the motion, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences therefrom in that party's favor. Id. at 255. If the nonmoving party bears the burden of proof on an issue at trial, that party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). Lastly, the moving party need not positively disprove the nonmovant's case; rather, it may prevail by establishing the lack of evidentiary support for that case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
IV. Analysis
A. The Americans with Disabilities Act
In 1990, Congress passed the Americans with Disabilities Act ("ADA") "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. §§ 1201(a) (b)(1). The ADA specifically states that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such an individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112. An employer, therefore, discriminates against its employee when the employer fails to "make reasonable accommodations to the known physical or mental limitations of [the] . . . employee unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business." Ross v. Indiana State Teacher's Ass'n Ins. Trust, 159 F.3d 1001, 1013 (7th Cir. 1998). Thus, to prevail on a failure to accommodate claim, plaintiff must show that she is a qualified individual with a disability, that defendant was aware of plaintiff's disability, and that defendant failed to reasonably accommodate plaintiff's disability. Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001). In looking at this analysis, the court must make two determinations. First, it is necessary to examine who is a "qualified individual with a disability." Second, the court must determine what is a "reasonable accommodation."
A qualified individual with a disability is defined as a person "who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The regulations promulgated to help clarify the ADA define essential functions as "the fundamental job duties of the employment position the individual with a disability holds or desires. The term `essential functions' does not include the marginal functions of the position." 29 C.F.R. § 1630.2(n)(1). The regulations proceed to list where one should look to determine what the essential functions of a particular job are. Such evidence may be found by looking to:
1) the employer's judgment as to what functions are essential; 2) written job descriptions prepared for advertising for, or interviewing, job applicants; 3) the amount of time spent on the job performing a particular function; 4) the consequences of not requiring an employee to perform a function; 5) the terms of a collective bargaining agreement; and 6) work experience of past and present employees in the position.Winfrey v. City of Chicago, 259 F.3d 610, 615 (7th Cir. 2001) (citing 29 C.F.R. § 1630.2(n)(3)).
As for what constitutes a reasonable accommodation, there is no hard-and-fast rule, but the ADA indicates that a reasonable accommodation may include the following: "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, . . . and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9). Once it has been determined that an employee requires some form of reasonable accommodation, the employer must engage in an "interactive process" with the employee to determine what the appropriate accommodations are under the circumstances. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996).
B. Discussion
Defendant filed its motion suggesting that it is entitled to summary judgment on all four counts. Plaintiff has challenged the motion with regard to count I only. Defendant argues that it is entitled to summary judgment because plaintiff has failed to demonstrate that she could perform the essential functions of the Construction/Modification Loan Specialist job and because the accommodations that plaintiff requested were not reasonable accommodations. Plaintiff argues that she could perform the essential functions of the job, she was not offered reasonable accommodations, and regardless of the previous two issues, defendant still violated the ADA by failing to engage in an interactive process with plaintiff to find another suitable position.
Plaintiff has abandoned her retaliation claim (Count II), her claim of unlawful discharge under the Family Medical Leave Act (Count III), and here ERISA claim (Count IV).
1. Was Plaintiff a Qualified Individual with a Disability?
Defendant's first claim is that plaintiff is not a qualified individual with a disability because she can not perform the essential functions of the Construction/Modification Loan Specialist position. Defendant claims that there are two essential functions of the position that plaintiff cannot comply with: working a full work week in Evansville, Indiana, and having constant mental alertness to perform the job. Plaintiff argues that working a full week in Evansville is not an essential function of the job and that she possesses the mental alertness necessary to perform this job.
With regard to whether or not plaintiff possesses the mental alertness necessary to perform the Construction/Modification Loan Specialist job, the court concludes that this issue is in dispute. The court cannot resolve this disputed issue in this manner and it therefore, should be left for the jury to decide. It is obvious that some significant degree of mental alertness is going to be necessary in virtually any job. Hence, some degree of mental alertness is clearly an essential function of plaintiff's position. However, what is unclear is the degree of mental alertness necessary and whether or not plaintiff can meet that requirement. It is true that plaintiff has indicated that, because she has multiple sclerosis, plaintiff suffers from "overwhelming fatigue." (Hasty Dep. at 24). But, Dr. Lorenzo-Bueltel indicated at her deposition that she felt that plaintiff could perform all of the essential functions of the position as long as she was granted some accommodations. (Lorenzo Bueltel Dep. at 25-26). Based on this testimony, there is certainly a dispute over whether or not plaintiff had the requisite mental alertness necessary for the Construction/Modification Loan Specialist position. While it is true that other employees have testified to plaintiff's lack of focus while at work, this testimony alone is not enough to convince the court that summary judgment is warranted. A great deal of the testimony about lack of focus is going to involve instances prior to plaintiff's move to the Grandview branch. Plaintiff had recognized that she needed a much shorter commute and a transfer to the Grandview branch had been approved in August. Yet defendant waited months to actually finalize the transfer to Grandview. Defendant has also attempted to demonstrate that, once plaintiff was replaced, other employees quickly made up the work where plaintiff had fallen behind. (Defendant's Reply in Support of Motion for Summary Judgment at 7). However, what defendant fails to mention is that plaintiff's predecessor was also backed up, and that, as early as September of 2001, defendant recognized a need for a Mortgage Administrative Assistant who would assist plaintiff. (Memo from Lisa Pfeifer to Cindy Hayes, June 15, 2002, at 2). This position, designed to support plaintiff's position, was never filled. ( Id. at 3).
Defendant's actions also weigh against summary judgment. Defendant argues that plaintiff lacked the mental alertness necessary to perform her job, yet its actions tell the court otherwise. Instead of taking the position that plaintiff was not qualified to continue working in the Construction/Modification Loan Specialist position, defendant offered to allow her to continue working in the same position as long as she moved to the Evansville office. In light of this offer and the testimony of Dr. Lorenzo-Bueltel, as well as defendant's lack of haste in moving plaintiff to Grandview and its failure to hire a support position that it had initially felt was necessary, the court concludes that summary judgment is not warranted on this issue.
Defendant also argues that an essential function of plaintiff's position is that an employee be able to work a full work week, and be able to do so in the Evansville office. Defendant argues that plaintiff cannot perform this essential function of the job and is, therefore, not a qualified individual with a disability. Plaintiff claims that working in Evansville and working a full work week, Monday through Friday, are either not essential functions of the position or that she can perform these functions with reasonable accommodations.
Judge Tinder, in Van Buskirk, noted that "whether a particular function is essential is a factual determination that must be decided on a case-by-case basis." VanBuskirk v. City of Indianapolis, 2004 WL 2137658 (S.D. Ind.) (quoting EEOC Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630 App. 1630.2(n) (2000)). Examining the factors set forth in 29 C.F.R. § 1630.2(n)(3), the court concludes that there is a disconnect between what defendant says are the essential functions of plaintiff's position and its own practices in the past. Defendant says that working a 40 hour work week, Monday through Friday, in Evansville is essential to the Construction/Modification Loan Specialist position. Yet, as plaintiff points out, defendant specifically made arrangements with plaintiff so that plaintiff could work in the Grandview office and so that she could have some time off for periods of fatigue and for doctor's visits. The court concludes that, based on these discrepancies in the parties versions of what the essential functions of the position were, summary judgment is not warranted.
2. Did defendant fail to Provide a Reasonable Accommodation?
Defendant also argues that summary judgment should be granted because none of the accommodations requested by plaintiff were reasonable. Plaintiff counters by arguing that 1) she was not granted reasonable accommodations, 2) defendant failed to engage in an interactive process when examining plaintiff's disability and possible accommodations, and 3) defendant failed to accommodate plaintiff by offering her another position.
As an initial matter, the court notes that one of plaintiff's suggested accommodations is not plausible. Plaintiff claims that one accommodation that would be reasonable is the ability to work from home. (Amended Complaint at 4). The Seventh Circuit, however, has held that working full time at home is not a reasonable accommodation. "An employer is not required to allow disabled workers to work at home, where there productivity inevitably would be greatly reduced." Vande Zande v. State of Wisconsin Dept. of Admin., 44 F.3d 538, 545 (1994). The Seventh Circuit contemplated some circumstance where allowing an individual to work out of her home would be acceptable, "but it would take a very extraordinary case for the employee to be able to create a triable issue of the employer's failure to allow the employee to work at home." Id. Because the court finds from the facts uncovered thus far that no extraordinary circumstances exist in this case, this is not a triable issue and the jury in this case will not be permitted to determine if the plaintiff should have been permitted to work entirely from home.
Even though plaintiff's request of being able to work full-time out of her home is not reasonable, plaintiff's other reasonable accommodation claims survive summary judgment. Generally, whether or not an accommodation is reasonable is a question of fact. Lujan v. Pacific Maritime Ass'n, 165 F.3d 738, 743 (7th Cir. 1999); Haschmann v. Time Warner Entertainment Co., L.P., 151 F.3d 591, 601 (7th Cir. 1998). Certainly, this case is no exception. Plaintiff claims that defendant should have provided her with the reasonable accommodations of working out of the Grandview branch with a flexible work schedule that permitted her to attend doctor's appointments and to work her schedule around the periods of fatigue associated with her multiple sclerosis. Defendant acknowledged that it initially accommodated plaintiff by "allowing Hasty to work a flexible schedule, allowing Hasty to work from home when necessary, and then moving [plaintiff's position] to Grandview to reduce her commute." (Defendant's Brief in Support of Motion for Summary Judgment at 24). Additionally, one of defendant's employees, Lisa Pfeiffer ("Pfeiffer"), admitted that plaintiff "consistently made up her hours (and in fact worked overtime) by coming in early or working from home." (Defendant's Reply in Support of Motion for Summary Judgment at 7).
Because defendant initially allowed plaintiff these accommodations and because Pfeiffer acknowledged that plaintiff was making up missed time, and even working overtime, the court can not say as a matter of law that these were not reasonable accommodations. The ADA contemplates such actions as job restructuring and part time or modified work schedules as examples of reasonable accommodations, and the court concludes that a jury could find that such accommodations were reasonable in this case. 42 U.S.C. § 12111(9). It is also important to note that the only relevant time frame is when defendant made its employment decision. Bay v. Cassens Transp. Co., 212 F.3d 969, 974 (7th Cir. 2000) (holding that "[w]hether or not an individual meets the definition of a qualified individual with a disability is to be determined as of the time the employment decision was made."). So, if the jury determines that, at the time of her last day of work on March 19, 2002, plaintiff could have performed the essential functions of her job if provided with reasonable accommodations, then plaintiff was a qualified individual with a disability and defendant is at fault for failing to provide her with reasonable accommodations, unless defendant can demonstrate that providing those accommodations would have amounted to an undue hardship.
Defendant has not raised the undue hardship defense in its motion for summary judgment. If defendant wishes to pursue an undue hardship defense, it will be its burden to prove that although the requested accommodations were reasonable, defendant should still prevail because providing such accommodations would have been too costly for defendant. Vande Zande, 44 F.3d at 543.
As for the issue of forcing plaintiff to commute to Evansville, the court notes that the Grandview branch was still open when defendant notified plaintiff that her position would be being moved to the Evansville branch. Additionally, when plaintiff was notified that the Grandview branch was closing, she requested that her position be moved to the Rockport, Indiana branch and that request was also denied. (Hasty Dep. at 83). Defendant argues that it had no obligation to allow plaintiff to remain at the Grandview branch. Defendant cites Corder v. Lucent Technologies for the proposition that an employer does not have to allow an employee to have a shorter commute. However, the court, having reviewed that case, does not view its holding as dispositive of plaintiff's claim. Corder v. Lucent Technologies, Inc., 162 F.3d 924, 928 (7th Cir. 1998). While the Seventh Circuit in Corder found that the defendant in that case was not unreasonable for moving the plaintiff to another office with a longer commute, the Corder Court did not hold that allowing a shorter commute was not an accommodation. Id. The Seventh Circuit in Corder did, however, hold that an employer need not provide the employee with the exact accommodation the employee requests, so long as the employer provides the employee with some reasonable accommodation. Id. Based on the court's reading of the decision in Corder, there is still a dispute over whether or not defendant attempted to provide plaintiff with any reasonable accommodation whatsoever and whether or not allowing plaintiff to work out of the Grandview office was a reasonable accommodation. Because such a dispute still exists, summary judgment is not warranted.
Finally, summary judgment is not warranted because employers, when faced with a situation where an employee may not be able to perform the essential functions of a particular job, still may be required to place the employee in some other job. Once it has been determined that an employee has a disability, an employer must engage in an interactive process in order to determine what the appropriate accommodations are under the circumstances. Bombard, 92 F.3d at 563. One such accommodation could be transferring the employee to a vacant position. 42 U.S.C. § 12111(9). The Seventh Circuit explained in Gile v. United Airlines that the employee may be transferred to an equivalent position or to a lower graded position and may be transferred to a different office. Gile v. United Airlines, Inc., 95 F.3d 492, 497-98 (7th Cir. 1996).
In this case, plaintiff met with Hayes to discuss being transferred to another position, specifically teller, relationship banker, and store manager. (Hasty Dep. at 67). There is some evidence that suggests that plaintiff indicated that she could perform the store manager position if she was granted some accommodations. The evidence also indicates that plaintiff discussed the teller position but that she explained that she could not perform the job if it required having her stand up and if it required her to work a full work week with no flexibility. ( Id.). It is true that plaintiff has the burden of pointing to some job that she could perform with reasonable accommodations. But, given the fact that plaintiff and defendant were engaged in the interactive process, the Seventh Circuit has explained that something more is required of an employer. "[P]roperly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that she must specifically say `I want a reasonable accommodation'. . . ." Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996). "The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn't know how to ask for it, the employer should do what it can to help." Id. Additionally, the Bultemeyer Court noted that one instance when requiring an employee to ask for a specific accommodation might be problematic is when the employee thinks that requesting the accommodation might be futile. Id.
The court concludes that the Seventh Circuit's decision in Bultemeyer weighs against summary judgment in this case. Viewed in the light most favorable to plaintiff, the facts suggest that plaintiff may have felt that requesting accommodations for the teller position was futile. Defendant had suggested that being able to work a full week during banking hours was an essential function of the Construction/Modification Loan Specialist position. Thus, plaintiff could have concluded that she was not able to perform the teller position either because it required working a full work week as well. Plaintiff could have, therefore, concluded that requesting a flexible schedule for the teller position was futile. For this reason, the court concludes that, given the fact that the parties were engaged in the interactive process, and given that an employee is not required to specifically say "I need an accommodation," a jury could conclude that, once plaintiff informed defendant that she could not perform the teller position because it involved standing and because she would need a flexible schedule, defendant should have inquired further about the teller position. A jury could conclude that defendant was required to discuss the reasonable accommodations necessary to put plaintiff in a position where she could, in fact, perform the teller position. Hence, summary judgment is not warranted.
IV. Conclusion
For the reasons outlined above, defendant's motion for summary judgment is GRANTED IN PART and DENIED IN PART.