Byrne v. Avon Products, Inc.

• Decision Date: 09 May 2003
• Docket Number: No. 02-2629.,02-2629.
• Parties: John BYRNE, Plaintiff-Appellant, v. AVON PRODUCTS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

328 F.3d 379

John BYRNE, Plaintiff-Appellant, v. AVON PRODUCTS, INC., Defendant-Appellee.

No. 02-2629.

United States Court of Appeals, Seventh Circuit.

Argued April 14, 2003.

Decided May 9, 2003.

Elizabeth Hubbard (argued), Hubbard & O'Connor, Chicago, IL, for Plaintiff-Appellant.

James E. Baylee (argued), Vedder, Price, Kaufman & Kammholz, Chicago, IL, for Defendant-Appellee.

Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

After more than four years of highly regarded service as the only stationary engineer on the night shift at Avon Products, John Byrne started to read and sleep on the job. Early in November 1998 a co-worker reported finding Byrne asleep in the carpenter's shop, which night employees sometimes use as a break room. Avon checked security logs (employees need a coded card to enter the carpenter's shop) and learned that Byrne had begun to frequent it. To investigate further, Avon installed a camera, which on its first night of operation revealed that Byrne spent about three hours of his shift reading or sleeping. The following shift Byrne lingered about six hours in the carpenter's shop, most of that time asleep with the lights off. Managers tried to discuss matters with Byrne on his next scheduled shift (November 16-17) but were unable to do so because he left work early, telling a co-worker that he was not feeling well and would be out the rest of the week. Calls were answered by one of his sisters, who told Avon that Byrne was "very sick". James Sparks, Avon's facilities engineer, finally reached Byrne, who mumbled several odd phrases but agreed to attend a meeting the afternoon of November 17. When Byrne did not appear, he was fired for that omission plus sleeping on the job. Byrne was in no shape for a conference, however, as he was suffering from depression. Relatives took him to the hospital after talking him out of a room in which he had barricaded himself. A psychiatrist concluded that by November 16 Byrne had begun to hallucinate; he attempted suicide on November 17 and during another panic attack tried to flush his head down a toilet. But two months of treatment enabled Byrne to surmount his mental difficulties. When Avon would not take him back, Byrne filed this suit under the Americans with Disabilities Act and the Family and Medical Leave Act. The district court granted summary judgment to Avon, ruling that neither statute excuses misconduct on the job. 2002 WL 1052036, 2002 U.S. Dist. LEXIS 9252 (N.D.Ill. May 22, 2002).

The ADA forbids employers to discriminate against any "qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a). "Qualified individual with a disability" is a defined term: "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). From November 1998 through mid-January 1999 Byrne could not stay awake (sleep disturbance is a common symptom of depression's onset) and had become too suspicious of his co-workers to tolerate them. As a result he was incapable of working. Byrne acknowledges this but contends that he should have been accommodated by being allowed not to work. That is not what the ADA says. The sort of accommodation contemplated by the Act is one that will allow the person to "perform the essential functions of the employment position". Not working is not a means to perform the job's essential functions. An inability to do the job's essential tasks means that one is not "qualified"; it does not mean that the employer must excuse the inability.

Time off may be an apt accommodation for intermittent conditions. Someone with arthritis or lupus may be able to do a given job even if, for brief periods, the inflammation is so painful that the person must stay home. See Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir.1998). Cf. Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 498 (7th Cir.2000) (part-time work may accommodate a person recovering from a medical problem). But Byrne did not want a few days off or a part-time position; his only proposed accommodation is not working for an extended time, which as far as the ADA is concerned confesses that he was not a "qualified individual" in late 1998. "The rather common-sense idea is that if one is not able to be at work, one cannot be a qualified individual." Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir.1999). Spotty attendance by itself may show lack of qualification. See EEOC v. Yellow Freight System, Inc., 253 F.3d 943 (7th Cir.2001) (en banc). Inability to work for a multi-month period removes a person from the class protected by the ADA.

Although the ADA applies only to those who can do the job, the FMLA affords those who can't work as a result of a "serious health condition" up to 12 weeks of leave in a year. 29 U.S.C. § 2612(a)(1)(D). Byrne's condition was serious, and he was ready to work again before the 12 weeks ran out.

FMLA leave depends on the employer's knowledge of a qualifying condition, and Byrne contends that his sister's statement on November 17 that he was "very sick" plus news of his hospitalization, which reached Avon the next day, provided the necessary information. Contrast Collins v. NTN-Bower Corp., 272 F.3d 1006 (7th Cir.2001) (employee's claim to be "sick" is not enough). But the district judge thought that notice on November 17 came too late. For the preceding ten days or so, Byrne had been sleeping on the job, which justified his discharge. (The district judge added, and we agree, that the record would not permit a reasonable trier of fact to conclude that Avon discharged Byrne because of, rather than in spite of, the information about Byrne's mental health that it received on November 17 and 18.)

Perhaps, however, Byrne's unusual behavior ...