Willis v. Conopco, Inc.

• Decision Date: 25 March 1997
• Docket Number: No. 96-8395,96-8395
• Citation: 108 F.3d 282
• Parties: , 6 A.D. Cases 806, 20 A.D.D. 605, 9 NDLR P 223, 10 Fla. L. Weekly Fed. C 790 Lynda L. WILLIS, Plaintiff-Appellant, v. CONOPCO, INC., a.k.a. Lever Brothers Company, a.k.a. Unilever, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 282

108 F.3d 282

65 USLW 2671, 6 A.D. Cases 806, 20

A.D.D. 605, 9 NDLR P 223,

10 Fla. L. Weekly Fed. C 790

Lynda L. WILLIS, Plaintiff-Appellant, v. CONOPCO, INC., a.k.a. Lever Brothers Company, a.k.a Unilever, Defendant-Appellee.

No. 96-8395.

United States Court of Appeals Eleventh Circuit.

March 25, 1997.

C. Gregory Price, Smith Price & Wright, Rome, GA, for Plaintiff-Appellant.

Michael Wayne Johnston, Shelly Yvonne Sharp, King & Spalding, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

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 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)(2)(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...