154 F.3d 685 (7th Cir. 1998), 97-3217, Hendricks-Robinson v. Excel Corp.

Docket Nº:97-3217.
Citation:154 F.3d 685
Party Name:Donna HENDRICKS-ROBINSON, Penny Moore, Teresa Westlake, et al., Plaintiffs-Appellants, v. EXCEL CORPORATION, Defendant-Appellee.
Case Date:August 28, 1998
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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154 F.3d 685 (7th Cir. 1998)

Donna HENDRICKS-ROBINSON, Penny Moore, Teresa Westlake, et

al., Plaintiffs-Appellants,

v.

EXCEL CORPORATION, Defendant-Appellee.

No. 97-3217.

United States Court of Appeals, Seventh Circuit

August 28, 1998

Argued April 3, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

24, 1998.

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[Copyrighted Material Omitted]

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Michael B. Erp, Laurie M. Burgess (argued), Katz, Friedman, Schur & Eagle, Chicago, IL, for Donna Hendricks-Robinson, Penny Moore, Teresa D. Westlake.

Michael B. Erp, Katz, Friedman, Schur & Eagle, Chicago, IL, John P. Nicoara, Nicoara & Steagall, Peoria, IL, for Cynthia Peters.

Joseph E. Tilson (argued), Timothy A. Wolfe, Bates, Meckler, Bulger & Tilson, Chicago, IL, for Defendant-Appellee.

Before FLAUM, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

The plaintiffs in this case represent a class of individuals who sustained permanent injuries while working on the production line of a meatpacking plant owned by the Excel Corporation ("Excel"). These permanently restricted employees sought to continue working for Excel in their original jobs or in some other capacity but were placed on medical layoff and eventually were terminated. They filed their complaint as a class action, alleging that Excel's unfair employment practice of laying off and terminating its employees because of their disabilities violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-213. The district court granted Excel's motion for summary judgment;

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the plaintiffs timely appealed. For the reasons that follow, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.

I

BACKGROUND

  1. Facts 1

    Excel's meatpacking plant in Beardstown, Illinois, slaughters, cuts and packages approximately 15,000 hogs daily. The plant operates two shifts and employs between 1,600 and 1,800 employees, 85% of whom are on production lines slaughtering hogs. 2 Those on the production lines work hard, usually under uncomfortable conditions; their tasks are often heavy and include much repetitive handwork that must be performed quickly and precisely. The rate of injury among such workers is, not unexpectedly, high.

    The plaintiffs in this case and the class they represent are former production workers at Excel who were injured on the job and placed on medical layoff after they received permanent medical restrictions that precluded them from performing their regular jobs and any other available production jobs at the plant. The district court certified the plaintiff class on the ground that it was attacking Excel's medical layoff policy and was not pursuing the plaintiffs' individualized claims. The central issue in this case is whether Excel's medical layoff policy violates the ADA because it fails to provide reasonable accommodation to its permanently restricted employees. 3 There is no written policy statement in the record; 4 we therefore shall begin with Excel's description of its policy and then shall consider the plaintiffs' contrasting description of the policy as, in their view, it has been put into practice at the Beardstown plant.

    1. Excel's Medical Layoff Policy

    In order to reduce the rate of injury and to lessen the impact of injury on its workers, Excel began, in 1989, an Ergonomics and Medical Management Program that provides ergonomics training and catalogs the physical requirements of each production job at the plant. Its experts in ergonomics and occupational medicine designed Medical Management Job Analysis ("MMJA") forms by which the physical and environmental demands of each job could be measured and closely compared

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    with an injured employee's medical restrictions. Excel uses these forms for "job-matching": matching injured employees with the available jobs that are consistent with their medical restrictions.

    On the "medical management" side of Excel's program, an injured employee is referred first to the plant's nursing staff for evaluation, even though he may be receiving treatment from his own physician. If an employee is able to resume work but has temporary medical restrictions, a plant nurse compares the restrictions to the essential functions of the employee's job and determines whether the employee may safely perform that job within those restrictions. The nurse consults the employee himself, the MMJA form for that job, and others familiar with the job (like the production supervisors and the plant's safety director, ergonomics coordinator and ergonomics monitor).

    If an employee cannot perform his regular job, it is the company's policy for the plant nurse to try to find an interim "light-duty" job or to create a "make-work" assignment that the temporarily restricted employee can perform safely until he is able to return to his former job. 5 Excel and the Union have set aside certain jobs from the normal job bidding process for this purpose; a number of the least physically demanding jobs are reserved for rehabilitating employees. It is Excel's policy to confine light-duty jobs and assignments to employees whose medical restrictions remain temporary; once an injured employee's medical restrictions become permanent, however, the employee must either obtain a regular position he can perform or go on "medical layoff."

    According to Excel, an employee's restrictions are treated as "permanent" when his physician has determined that he has achieved his maximum medical improvement and will recover no further. Excel explains that its policy of keeping light-duty assignments as temporary avoids having the finite pool of light-duty assignments taken permanently by persons whose conditions were not improving. A temporarily restricted employee may perform light-duty work for indefinite and varying lengths of time, but when his medical restrictions are determined to be permanent because his medical condition is not expected to improve further, he becomes ineligible for light-duty work.

    Once the "permanent medical restriction" determination is made, an Excel nurse reevaluates the employee's abilities to see whether his restrictions permit him to perform the essential functions of his regular job or of other available production jobs, with or without reasonable accommodation. As before, the nurse compares the employee's permanent restrictions with a job's essential duties, using the MMJA form, consulting with the employee and others in the plant familiar with the job, and observing the job in question. If his permanent medical restrictions preclude him from performing his regular job and any other available job, the employee may examine the plant's job postings and bid book to find either production or nonproduction jobs that he feels he can perform. Then the nurse meets with the employee to confirm the fact that there are no jobs he can perform. The ergonomics monitor compares the employee's restrictions with the MMJA form description of his regular job to confirm whether the employee could perform the job with accommodation. The plant's safety director, in the presence of the Union representatives and the plant's ergonomics coordinator, then explains to the employee that his restrictions preclude him from performing his regular job. If no accommodation or other available jobs can be found, the permanently restricted employee is placed on medical layoff.

    Under its policy, Excel then offers the employee a complete tour of the plant to familiarize the employee with other production jobs he may believe he can perform. Although the tour shows the employee only the other production jobs, the employee is free to inquire about and apply for any nonproduction jobs, such as office clerical positions. He is also free to suggest accommodations that might enable him to perform his

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    job or another available job. Excel claims that, since 1991, its policy has enabled at least 45 employees with permanent medical restrictions to continue working in the plant without being placed on medical layoff.

    Once a permanently restricted employee is placed on medical layoff, Excel automatically bids the employee for all vacant production jobs that become available during the next 12 months. 6 While on layoff, that employee may call the plant on a weekly basis to ask about jobs and may bid on any vacant job, whether it be production or nonproduction. If the employee is the most senior applicant, he "wins" an automatic bid while on medical layoff. At that point, the nurse again compares the employee's medical restrictions with information about the available job. If the employee is able to perform the essential functions of the position, with or without accommodation, he is awarded the position and taken off medical layoff status. According to Excel, since 1991, at least 6 medically laid-off employees have been offered different production jobs through this process. However, if an employee remains on medical layoff for 12 months, he is terminated.

    2. Plaintiffs' View of Excel's Policy

    The plaintiffs, former Excel employees who were placed on medical layoff and then terminated 12 months later, take issue with Excel's description of its medical layoff policy and practice. Focusing on the time when an injured employee's recuperation period is over, they assert that, once a doctor (typically the company's doctor, they claim, rather than a personal physician) determines that an employee's restrictions are permanent, that employee is put on medical layoff and eventually, inevitably, terminated--even though he was successfully performing a regular, necessary job at the plant. The plaintiffs claim that it is the responsibility of a company nurse to assess whether...

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