Equal Emp't Opportunity Comm'n v. Ford Motor Co.

• Citation: 752 F.3d 634
• Decision Date: 29 August 2014
• Docket Number: No. 12–2484.,12–2484.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant, v. FORD MOTOR COMPANY, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

752 F.3d 634

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant,

v.FORD MOTOR COMPANY, Defendant–Appellee.

No. 12–2484.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 10, 2013.

Decided and Filed: April 22, 2014.

Rehearing En Banc Granted, Opinion Vacated Aug. 29, 2014.

ARGUED: Gail S. Coleman, Equal Employment Opportunity Commission, Washington, D.C., for Appellant. Eugene Scalia, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellee. ON BRIEF: Gail S. Coleman, Equal Employment Opportunity Commission, Washington, D.C., for Appellant. Eugene Scalia, Porter Wilkinson, Gibson, Dunn & Crutcher LLP, Washington, D.C., Elizabeth P. Hardy, Kienbaum Opperwall Hardy & Pelton, P.L.C., Birmingham, Michigan, for Appellee.

Before: MOORE and McKEAGUE, Circuit Judges; HELMICK, District Judge.^*

MOORE, J., delivered the opinion of the court, in which HELMICK, D.J., joined. McKEAGUE, J. (pp. 649–56), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

At issue in this case is whether a telecommuting arrangement could be a reasonable accommodation for an employee suffering from a debilitating disability. Charging party Jane Harris was terminated from her position as a resale steel buyer at Ford Motor Co. (“Ford”) after she asked to telecommute several days per week in an attempt to control the symptoms of irritable bowel syndrome (“IBS”). The Equal Employment Opportunity Commission (“EEOC”) argues that Ford discriminated against Harris on the basis of her disability and retaliated against her for filing a charge with the EEOC. The district court granted summary judgment in favor of Ford. Because we find evidence in the record to create a genuine dispute as to whether Harris was qualified to work as a resale buyer and whether she was terminated in retaliation for filing an EEOC charge, we REVERSE the district court's grant of summary judgment and REMAND for proceedings consistent with this opinion.

I. BACKGROUND

In 2003, Jane Harris was hired as a resale buyer at Ford. Resale steel buyers serve as intermediaries between steel suppliers and “stampers,” the companies that use steel to produce parts for Ford. R. 60–2 (Gordon Decl. ¶ 3) (Page ID # 1027). Their role is to respond to emergency supply issues to ensure that there is no gap in steel supply to the parts manufacturers. Id. ¶ 3–4 (Page ID # 1027–28). The position involved some individual tasks, such as updating spreadsheets and periodic site visits to observe the production process. R. 60–5 (King Dep. at 46) (Page ID # 1057). However, “the essence of the job was group problem-solving, which required that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.” R. 60–2 (Gordon Decl. ¶ 11) (Page ID # 1034). Ford managers made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving. Id.; R. 60–4 (Jirik Decl. ¶ 8) (Page ID # 1048–49); R. 60–3 (Gontko Decl. ¶ 4) (Page ID # 1043). Another resale buyer on Harris's team believed that she “could not work from home more than one day a week and be able to effectively perform the duties of the resale buyer position.” R. 60–8 (Pompey Decl. ¶ 11) (Page ID # 1095). Harris worked in this role until September 2009, when she was terminated. R. 60–2 (Gordon Decl. ¶ 26) (Page ID # 1040–41).

Harris was a consistently competent, though not perfect, employee. In her annual performance reviews between 2004 and 2008, Harris was rated as “excellent plus.” R. 66–2 (2004 Perf. Rev.) (Page ID # 1260); R. 60–14 (2006 Perf. Rev.) (Page ID # 1135); R. 60–12 (2007 Perf. Rev.) (Page ID # 1122); R. 60–13 (2008 Perf. Rev.) (Page ID # 1129). Her reviews included notations that she worked diligently with “minimal supervision” and possessed strong knowledge of the steel market. R. 60–14 (2006 Perf. Rev.) (Page ID # 1135); R. 60–12 (2007 Perf. Rev.) (Page ID # 1122). However, Harris's supervisors also critiqued her interpersonal skills, notingthat she could be disruptive and argumentative. R. 60–12 (2007 Perf. Rev.) (Page ID # 1122). Because 80% of buyers received the “excellent plus” rating, managers also assigned each employee a “contribution assessment,” but did not share this additional assessment with the employees. R. 60–2 (Gordon Decl. ¶ 13) (Page ID # 1034–35). In 2007 and 2008 Harris received the lowest contribution assessment level, placing her in the bottom quartile of employees in her peer group. Id. She also received low rankings on most of her job-related skills assessment areas in 2007 and 2008. R. 60–4 (Jirik Decl. ¶ 16) (Page ID # 1052–53).

Throughout her entire period of employment with Ford, Harris suffered from IBS, an illness that causes fecal incontinence. R. 67–3 (Harris Dep. at 139–40) (Page ID # 1384). Over time, her symptoms worsened and, on particularly bad days, Harris would be unable even to drive to work or stand up from her desk without soiling herself. Id. at 140 (Page ID # 1384); R. 60–6 (Harris Dep. at 144) (Page ID # 1060). Harris began to take intermittent FMLA leave when she experienced severe IBS symptoms. R. 66–3 (Harris Decl. ¶ 12) (Page ID # 1264).

After she began taking leave, Harris's absences started to affect her job performance. In 2005, Dawn Gontko, Harris's supervisor at that time, responded to Harris's attendance problems by allowing her to work on a flex-time telecommuting schedule on a trial basis. Gontko deemed the trial unsuccessful because Harris “was unable to establish regular and consistent work hours.” R. 60–3 (Gontko Decl. ¶ 3) (Page ID # 1043). When Harris's absences continued, Gontko placed her on Workplace Guidelines, a tool used by supervisors to assist employees in improving attendance. Id. ¶ 5 (Page ID # 1043–44). Jim Gordon, Gontko's successor, also found Harris's absences to be problematic. Although Ford did not approve remote work, Harris worked from home on an informal basis, including on evenings and weekends, to keep up with her work. However, Ford did not credit Harris with the time she spent working during non-“core” hours and marked the days that she stayed home because of her illness as absences. R. 60–2 (Gordon Decl. ¶ 8–9) (Page ID # 1029–30). Ford took the position that “if [Harris] was too ill to come to work, she would be considered too ill to work.” Id. ¶ 8 (Page ID # 1029–30). Time spent working after core business hours was considered “casual overtime” expected of salaried employees. R. 60–6 (Harris Dep. at 237–38) (Page ID # 1071).

Ford also explained that work performed outside of core business hours is not a sufficient substitute for work during regular hours because employees cannot engage in team problem-solving or access suppliers to obtain information during off-hours. R. 60–2 (Gordon Decl. ¶ 7) (Page ID # 1029). Indeed, when Harris worked nights and weekends, she made mistakes and missed deadlines because she lacked access to suppliers. For example, while working on Saturday, April 18, 2009, Harris submitted a purchase order containing incorrect pricing information because she could not immediately access the supplier on a weekend to obtain updated quotations. R. 60–2 (Gordon Decl. ¶ 16) (Page ID # 1036–37). These mistakes added to the frustration of both suppliers and coworkers, who had to take time to correct them. Because Harris was not permitted to work remotely to mitigate the effect of her many unscheduled “absences,” Gordon was forced to shift some of her work to himself or Harris's teammates. Id. ¶ 8 (Page ID # 1029–30); R. 60–8 (Pompey Decl. ¶ 4, 6) (Page ID # 1092–93). Under Ford's system of marking absences, in the first seven months of 2009 Harris was absent more often than she was present during core business hours. R. 60–2 (Gordon Decl. ¶ 10) (Page ID # 1030–33).

In February 2009, Harris formally requested that she be permitted to telecommute on an as-needed basis as an accommodation for her disability. R. 60–10 (Pray Email) (Page ID # 1100). Ford utilized a telecommuting policy that authorized employees to work up to four days per week from a telecommuting site. R. 60–11 (Telecommuting Policy) (Page ID # 1103). The policy provides that all salaried employees are eligible to apply for a telecommuting arrangement, but specifically states that such arrangements are not appropriate for “all jobs, employees, work environments or even managers.” Id. (Page ID # 1104). Under this policy, several other buyers telecommuted on one scheduled day per week. R. 66–21 (Coworkers' Telework Agreements) (Page ID # 1362–63).

Harris believed that being permitted to work from home would relieve her stress and alleviate her IBS symptoms, and that any episodes would be less disruptive at home because they would not affect her coworkers. R. 60–6 (Harris Dep. at 146–48) (Page ID # 1061). In a meeting between Harris, Gordon, and human resources to discuss her telecommuting request, Harris maintained that most of her work could be done via computer or telephone. R. 66–10 (Meeting Notes) (Page ID # 1319–20). When Gordon raised a concern about Harris meeting with suppliers, she responded that she could reschedule meetings that fell at inconvenient times. Id. After this meeting, Harris's supervisors discussed her job requirements and concluded that her position was not suitable to telecommuting. R. 60–2 (Gordon Decl. ¶ 11) (Page ID # 1034). Ford denied the request.

Instead, Karen Jirik, a Ford personnel relations representative, suggested several alternative accommodations, including moving Harris's cubicle closer to the restroom or seeking another job within Ford more suitable for telecommuting. R. 60–4 (Jirik Decl. ¶ 9) (Page ID # 1049). Harris rejected each of these options. She also complained that Gordon had begun harassing her because of her leave-related absences. Id. ¶ 10. Jirik asked Harris to write a...