Opinion
Civil Action No. 3:98-CV-2581-L.
November 30, 2000.
MEMORANDUM OPINION AND ORDER
Before the court is Defendant's Motion for Summary Judgment, filed September 1, 2000, and Plaintiff's Objections to Defendant's Summary Judgment Evidence, filed September 25, 2000. The court construes the latter as a motion to strike. After careful consideration of the motions, responses, briefs, evidence submitted by the parties, and applicable law, the court grants in part and denies in part Plaintiff's motion to strike. The court finds, however, that no genuine issue of material fact exists regarding Plaintiff's claim of disability discrimination. Accordingly, the court grants summary judgment for Defendant.
I. Factual and Procedural Background
The facts contained herein are either undisputed or, where they are disputed, presented in the light most favorable to Plaintiff as the nonmovant.
Plaintiff has been employed by Defendant since October 8, 1973 as a Production Specialist. Because of extreme pain in her back and legs resulting from sciatica and disc disruption syndrome, she was placed on permanent medical restrictions in 1997. These restrictions, in effect at the time of the actions that form the basis of the complaint, prohibited lifting, pushing, or pulling more than five pounds; and bending or stooping. In addition, the medical restrictions required that Plaintiff be allowed to sit, stand, and walk as needed to alleviate the pain. Defendant provided Plaintiff an accommodation in the Production Specialist position, allowing her to obtain assistance from a coworker if she encountered a task that she could not perform because of her medical restrictions.
As modified in August 1999, these restrictions prohibit lifting more than fifteen pounds, lifting above shoulder level, and sitting for more than sixty minutes without a five-minute break.
ln 1997, Plaintiff sought promotion to a position as a Machine Setter. In pursuit of that goal, she took and passed a Mechanical Aptitude test, and enrolled in a training class, lasting six and one-half weeks, on the duties and responsibilities of the position. Successful completion of the training class would have made her eligible for bidding on any available Machine Setter position that became available. If her bid were successful, she would then have to successfully complete six months of on-the-job training before being promoted to that position.
After receiving a copy of Plaintiff's work restrictions, her supervisor investigated the requirements of the Machine Setter position and concluded that Plaintiff could not perform the essential functions of that position without violating the work restrictions. The supervisor then removed Plaintiff from the training class, thus precluding Plaintiff from qualifying herself for a future position as a Machine Setter.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") concerning her removal from the training class, alleging that this constituted discrimination on account of her disability. She contended that she could perform the essential functions of the Machine Setter position if given the same accommodation that she had previously been given in the Production Specialist position, that is, allowed to obtain assistance from a coworker if she encountered a task that she could not perform because of her medical restrictions. The EEOC dismissed the charge and issued a "right to sue" letter, after which Plaintiff filed this action on November 2, 1998 under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id., see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992), "Only disputes over facts that might affect the outcome of the Suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis A. Plaintiff's Motion to Strike
Plaintiff challenges certain portions of the declarations of Amelia Gonzales, Debbie Daugherty, and Gloria McKinney as inadmissible hearsay. The paragraphs in question repeat statements by other employees of Defendant that Plaintiff could not perform the essential functions of a Machine Setter, that she was not working within her medical restrictions, and so on. Defendant responds that these statements would be admissible if offered, not for their truth, but for their effect on the individual to whom the statements were made — that is, to explain why they took the actions they did. The court concludes that those portions of the declarations would be admissible for such limited purposes, and therefore denies Plaintiff's motion to strike the statements in their entirety. The court agrees with Plaintiff, however, that the statements would be inadmissible hearsay if submitted for the truth of the matters asserted and therefore grants Plaintiff's motion to the extent of not considering those statements for that purpose.
B. Defendant's Motion for Summary Judgment
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such 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(a). "The term 'disability' means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). "The term `qualified individual with a disability' means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Defendant advances two arguments in its motion for summary judgment: that Plaintiff is not a "qualified individual" with respect to the Machine Setter position, and that Plaintiff does not have a disability as defined by the ADA.
The key issues with respect to the "qualified individual" argument are the essential functions of a position and whether a proposed accommodation is reasonable. "'Essential functions' are those functions that bear more than a marginal relationship to the job at issue." Hershey v. Praxair, Inc., 969 F. Supp. 429, 434 (S.D. Tex. 1997) (citing Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993)). Factors to be considered in determining whether a function is "essential" include the employer's judgment, the consequences if the individual is not required to perform the function, and the work experience of incumbents. Id. (citing 29 C.F.R. § 1630.2(n)(3)). "The plaintiff is required to demonstrate, as part of his prima facie case, that an accommodation of his disability exists and that such accommodation is reasonable." Amato v. St. Luke's Episcopal Hosp., 987 F. Supp. 523, 531 (S.D. Tex. 1997). "This burden of production is not a heavy one and merely entails demonstrating the existence of a plausible accommodation 'the costs of which, facially, do not clearly exceed its benefits.'" Id. (quoting Borkowski v. Valley Cent. Sch. Dist, 63 F.3d 131, 138 (2d Cir. 1995)). Cf. Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d 538, 543 (7th Cir. 1995) ("The employee must show that the accommodation is reasonable in the sense both of efficacious and of proportional to costs."). With this as background, the court proceeds to review the evidence submitted by the parties.
Defendant submits a declaration from Robert G. Glover, a Manufacturing Supervisor who had worked as a Machine Setter for 14 years and is familiar with all the Machine Setter positions at Defendant's facility. His declaration states that "[a]ll Machine Setter job positions require and have required the ability to lift, pull. push over five pounds, bend, stoop and crawl; and stand for a majority of the shift." The specific requirements include, among others:
Defendant's Appendix in Support of Its Motion for Summary Judgment ("Defendanfs Appendix") at 3.
"must be able to lift five gallon containers of cleaner weighing forty pounds off of a wood skid and carry them between seventy-five and one hundred fifty feet"
must "carry the bucket [weighing about thirty-five pounds] about eighteen feet to the front of the machine"
"must be able to lift a package of solder that weights twenty-five pounds off a wood skid and carry it thirty feet to the machine"
"must be able to stoop and bend down in order to crawl into the machine to clean any solder spilled on to the conveyer. The opening is about thirty-inches from the floor and Machine Setter has to reach across an area of about eighteen to twenty-four inches using a wire brush and putty knife, and various other tools, to do the cleaning."
"must be able to lift tools weighing up to five pounds above his or her head and work with those tools there in order to adjust or fix problems in the top cabinet of the high speed chip mounter. A Machine Setter must perform this task at least once a day. A Machine Setter may perform this task up to ten times or more a day if there are problems with the machine."
"must be able to stoop, twist, and crawl to work in tight places in the machine. . . at least several times a day."
"must be able to hold and balance with one hand the insertion head weighing up to twenty-five pounds, and with the other hand hold the machine's coupling to insert the insertion head shaft into the coupling; and then hold the insertion head with one hand while using machine screws to attach the head to the machine. This is done while leaning on and bending into the machine."
"Operating [some of the] machines requires constant standing. Resting on a stool would not be feasible because the operator could not see the machine running."
Id.
Id. at 4.
Id.
Id.
Id. at 4-5.
Id.at 5.
Id. at 5-6.
Id. at 7, 8.
The declaration further notes that there have never been permanent "light-duty" Machine Setter positions, and that a Machine Setter's failure to perform adequately can have serious consequences, including those that endanger the safety of the Machine Setter and other employees and impair the productivity of the production line.
Id. at 3.
Id. at 2.
Defendant has adequately established that the essential functions of the Machine Setter position include many that conflict with Plaintiff's medical restrictions. Plaintiff does not contend that these are not essential functions, or that she could perform these functions without accommodation. Instead, she asserts that she could perform those functions if given the same accommodation that Defendant provides her in her current job — allowing her to obtain assistance from a coworker if she encountered a task that she could not perform because of her medical restrictions.
The factors of "reasonable accommodation" and "essential functions," however, are interrelated. "As a matter of law, it is an unreasonable accommodation for the employer to have to exempt the employee from performance of an essential function of the job." Jones v. Kerrville State Hosp., 142 F.3d 263, 265 (5th Cir. 1998) (nurse unable to subdue patients due to physical limitations caused by disability). "[T]he law does not require an employer to transfer from the disabled employee any of the essential functions of his job." Barber v. Nabors Drilling U S A., Inc., 130 F.3d 702, 709 (5th Cir. 1997); see also Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 11 12-13 (8th Cir. 1995) (reallocating marginal functions to other employees can be a reasonable accommodation, but "[a]n employer need not reallocate the essential functions of a job"). "An employer is not required to create 'light duty' jobs to accommodate." Foreman v. Babcock Wilcox Co., 117 F.3d 800, 809 (5th Cir. 1997); see also Howell v. Michelin Tire Corp., 860 F. Supp. 1488, 1492 (M.D. Ala. 1994) (reasonable accommodation includes assigning employee to vacant light-duty position, but employer need not create such a position).
The requested accommodation clearly would constitute exempting Plaintiff from essential functions of the position, and creating a light-duty position. Such an accommodation, therefore, is not a "reasonable" one. While Defendant could choose to offer such an accommodation, it is not required to do so by the ADA. Plaintiff offers no support for this accommodation as "reasonable" other than the fact that it was provided previously, an inference in which the court does not join. See Wong v. Regents of Univ. of Cal., 192 F.3d 807, 820 (9th Cir. 1999) ("An institution's past decision to make a concession to a disabled individual does not obligate it to continue to grant that accommodation in the future, nor does it render the accommodation reasonable as a matter of law."); Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995) ("[T]he fact that certain accommodations may have been offered . . . as a matter of good faith does not mean that they must be extended . . . as a matter of law . . . . [A] good deed would effectively ratchet up liability, and thus not go unpunished."). Even if the accommodation were reasonable for a Production Specialist, it would not follow that it would be reasonable for the position of Machine Setter. Plaintiff has offered no evidence that the essential functions of the two positions are sufficiently similar to justify this second inference. She merely asserts that "[i]f Wilburn's current accommodations as a Level I Production Specialist are reasonable, she should be entitled to the benefit of the doubt on summary judgment regarding whether the same accommodations as a Level III Machine Setter position would be reasonable." This argument fails because the initial premise has not been proved and is insufficient by itself to reach the conclusion.
Plaintiff's Brief in Response to Defendant's Motion for Summary Judgment, at 8.1
Plaintiff further argues that Defendant has not produced evidence that the accommodation would create an undue hardship; however, that argument is irrelevant. A defendant's "burden of showing that the proposed accommodation is unreasonable, which 'merges, in effect, with its burden of showing, as an affirmative defense, that the proposed accommodation would cause it to suffer an undue hardship'" does not arise until the plaintiff demonstrates "a plausible accommodation 'the costs of which, facially, do not clearly exceed its benefits.'" Amato, 987 F. Supp. at 531 (quoting Borkowski, 63 F.3d at 138). Although Plaintiff's "burden of production is not a heavy one," id., the court concludes that Plaintiff has not met it. The only accommodation that Plaintiff proposes is, as a matter of law, not reasonable. Accordingly, Defendant has not established the existence of a genuine issue of material fact as to whether she is a "qualified individual." Because this necessary predicate for ADA liability has not been established, no other facts are material with respect to this action. The court therefore grants summary judgment to Defendant on Plaintiff's claim.
Plaintiff also appears to argue that since she can perform the functions required for the training class, she should be allowed to complete the pre-qualifications for a Machine Setter position and only address her ability to perform the essential functions of that position if and when she successfully bids for such position. The court rejects this argument. Requiring Defendant to use limited training resources on an individual who cannot qualify for the position would serve no purpose; the costs of such a requirement would "clearly exceed its benefits." Amato, 987 F. Supp. at 531 (S.D. Tex. 1997) (quoting Borkowski, 63 F.3d at 138). Also instructive, although involving a different area of employment discrimination law, is Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 122-23 (1985) (relevant comparison is to the position sought, not the position currently occupied) (interpreting the "bona fide occupational qualification" provisions of the Age Discrimination in Employment Act).
Defendant also argues that Plaintiff is not "disabled" within the meaning of the ADA. Based on its ruling on the issue of "qualified individual," the court need not address this additional ground for summary judgment.
IV. Conclusion
For the above-stated reasons, there is no genuine issue of material fact present in the record with respect to Plaintiff's claim, and Defendant is entitled to judgment as a matter of law. Defendant's Motion for Summary Judgment is granted, and Plaintiff's claim is hereby dismissed with prejudice. Judgment will issue by separate document.
It is so ordered this 30th day of November, 2000.